Charles J. Darling (Charles John Darling) Darling.

Scintillae juris online

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Darling, Charles J.

Darling (Charles John


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Scintiiiae 3>uris-



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Edinburgh and London


Scfntillae Juris


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" J7ST operae pretium duplicis pernoscere
juris naturam," says Horace. I
believe he wrote thus concerning soup,
but his remark applies very well to the
kind of jus served out in our Courts of

The following trifling essays are in-
tended for no more than mere hints to
facilitate the compounding of our duplex
jus according to the most approved re-
cipes. They are, like other cidinary
directions, designed for the information
of the cooks only, and not for the en-
lightenment of those who are to partake
of the broth.















































l 33

©f ILafos.

ITH laws we have small concern
until they have been contemned,
or set at nought. Of the law of
gravitation we know that it exists,
and the same of the law of entail, yet a
practical lawyer has little more occasion to
inquire into the reasons which led to the
passing of the statute Be. Bonis than an
artillery-man has to read Genesis. To know
how restraints came to be imposed helps us
but little to remove them ; and a barrister
spends his time to better purpose when he
observes the conduct of men who infringe
laws than when he studies the motives of
those who make them.

It has often happened that eminent advo-


cates have been poor lawyers, and great
jurists bad advocates ; and tins need not
seem strange to us, if we consider that many
men have broken a hundred laws, who. never-
theless, have not understood one. It is in
getting a verdict, as in getting anything else ;
you will obtain it the more easily if you
know of no reason why you should not.

As he who should write on military affairs
would speak little of quarrels, and much of
weapons, strategy, and tactics, I shall devote
but a short space to the examination of laws,
seeing that they are to be regarded as a sort
of corpus vile to be tugged hither and thither,
like the body of Valerius, when

. . . " Titus dragged him by the foot,

And Aulus by the head."

Still, as Macaulay informed us of one or two
matters relating to Valerius— his home, and
political sympathies — I shall not neglect the
nature of laws altogether.

And, first, let us notice that all laws, even
the most democratic, are designed to prevent


equality — which is chaos. Fur, as before the
elements were subjected to law, before the

waters and the land were divided from one
another, all was but mud, so, were it not for
our customs and statutes, society would have
no foundation — as we may say ; no dregs or
" residuum " — as it lias pleased a prominent
politician to denominate those who return
him to Parliament. When we call people base,
we intend not to compliment them, but we
then recognise their value ; which is to us
what the tortoise, on whom stands the ele-
phant who carries the world, is to the heathen
philosophy which invented him.

Foundations, being indispensable, become
proud of their position. The meanest hind
in this kingdom delights to proclaim that
"an Englishman's house is his castle;" yet
what is this but saying that, fur himself, he
is at liberty to die in a ditch, if it be not
roofed over.

To say I may possess this or that, is to
forbid all the world beside to touch it till
I am willing to give it away. It is like the


amusement of putting a piece of cheese on the
nose of a dog, who, though all impatient and
hungry, -waits till I give him leave before he
ventures to swallow it.

The world has long ago agreed that for each
man to be able to say of everything, " This is
mine,"' is not nearly so enjoyable as for all to
be allowed to say of something, " This is not
thine," — even though the portion separately
possessed be of the smallest. One of two
tenants in common of a thousand acres owns
every part of that thousand, yet he has not,
1 am sure, nearly so much pleasure from his
land as he has who is separately possessed
of five hundred — for although he can say,
" It is my own," he cannot proceed, " and
nobody else's." The pleasure of having pro-
perty lies more in the excluding from it
of others than in the occupation of it by

And herein lies the chief enjoyment to be
had from the making of gifts ; that, whereas
the quiet and continued possession of any-
thing is not a striking manner of asserting


dominion over it, the fact that you part with
any property proclaims that you possess it,
and your bestowing it on some one of your
choice involves the pleasure of refusing it to
all whom you do not endow.

As every enactment must, of necessity, be
a cheek upon seme passion, 01 predilection of
human nature, it is prudent not to attribute
much force to a new law, but to wait until it
has been assented to by judicial interpreta-
tion before one entertains much respect for it.
There never yet was a tyrant who did not
rule by the submission of his subjects. Majo-
rities can only be enslaved when tiny prefer
servitude to resistance ; and it is to no pur-
pose to command that men shall do what they
have not a mind to. Let it be decreed to-day
that all men shall be just, and by to-morrow
it will have been decided that they are so
" within the meaning of the Act ;" for, though
the contrary would be the truth, humanity
could not bear to pronounce it.

The general popularity of the laws may
well astonish us, when we remember that


they are a restraint upon, and constant menace
to, ns all. They are. indeed, a kind of whips ;
and would, perhaps, not be endured by the
community, were it not for that arrangement
of ours, by which, when one of the public is
to undergo the pain of a flogging, twelve of
his fellows have the pleasure of laying on
the lash.

I cannot avoid noticing here an error into
which they fall who complain of the uncer-
tainty of law, as though it were a weakness.
Rather should it be considered the chiefest of
all sanctions ; for trial is often more dread-
ful than punishment, as sickness is painful,
while death is no more than the cessation
of pain. If we examine closely, I believe
we .-hall find that all men fear to be ill, and
to be dead, but that no one fears dying.
Though many people do voluntarily slay
themselves, yet they are always accounted
mad ; and that not because they have un-
dergone the pain of extinguishing life — for
they may have fled from the toothache —
but because they have rushed into another


state of existence, where they know not but
they may be troubled with ten toothaches
at once.

If death were simply non-entity, all would
seek it who had less enjoyment than that
which has no feeling ; thus, unless a man de-
lighted in unhappiness — which I think some
do — he had better kill himself painlessly, to
escape infelicity, than live painfully tu endure
it. "We sec then that some sanction is neces-
sary to prevent the depopulation of a world
so full of misery as this ; and we find that
the sanction provided is uncertainty.

This brings us back — after a circuitous, but
not unprofitable, voyage — to our terminus a
quo; for uncertainty is the direct result of
ignorance, and we have seen that the con-
tinuance of life itself depends mainly on our
partial want of knowledge — and that which
preserves our existence promotes also the
observance of our laws. Many would dare
to do wrong, did they know the worst that
might follow.

Did I design here to enter upon a discus-



sion of any particular laws, it is plain that
from this point we might well proceed to
survey that prospect which our recent Act
for the increasing of knowledge expands
before us.

©f International 3Lato.

HEY are greatly mistaken who re-
fuse to admit — as very many do
— that there is, properly speaking,
no such thing as International
Law. The fact is, that there is a Code re-
cognised all the world over, in accordance
with which the Judges (i.e., the Sovereigns)
and the jurors (i.e., the peoples) of every
country invariably give their decisions.

For the convenience of those who may have
in their law libraries only the ten command-
ments, and perhaps some odd volumes by
(irotius or Pufendorff, I will here set out
the whole of this International Code in its
integrity : —

" La raison da phis fort est toujour* la


The decided cases illustrating this doc-
trine are as consistent as they are numerous
— and therefore one or two citations may
suffice. See Bianchi v. Neri; Indian and
African Cases — a\so Angli v. Angelos ; Foreign
Reports, passim.

©f JJutigrs.

^f|T is a natural result of the laws
I not being understood by those
who make them, that persons of
legislative capacity should be em-
ployed in their interpretation and improve-
ment. Wherefore, it is expedient to under-
stand the decided cases ; but this cannot be
done without examining closely the personal
characteristics of those who decide them.

This is admitted by the Judges themselves,
who, though they would swoon or commit
you, should you attempt to read a report of
a speech in Parliament, in order to show
what is called the intention of the legislature,
will, nevertheless, in dealing with a reported
case, frequently say, " Ah, I happen to know


that my learned brother lived to repent of
that judgment. It does not express his later
views ;" or, " My brother was hardly orthodox
in railway cases. : '

Now, as in the Parliament there are mem-
bers whose contributions to the statute book
are all of one sort, so is it with the legislation
of the Bench.

" 'Tis with our judgments as our watches, none
Go just alike, yet each believes his own."

Any one who will may satisfy himself, by
taking down any volume of reports, old or
new, that any given Judge will run in a par-
ticular direction if he fairly can.

There are, however, so many who will not
give themselves the trouble of looking into the
books, that I shall here present a judgment
or two, which I have extracted from the
mass, as being peculiarly characteristic of the
Judges who delivered them. It is, I think,
unnecessary that I should furnish references
to the sources from which these examples are
drawn, since they must already be familiar to
all who have the regular reports.


The following judgment was delivered by a
learned Judge in Thimblcrig v. Hookey : —

" This action was brought tu recover dam-
ages for having been called a villain— and the
Plaintill' alleges, somewhat boldly as I think,
that on that account his friends have deserted
him. But I hope I may be allowed to say
that, in my humble opinion, such of his ac-
quaintance as 1 had the advantage of seeing,
when they came as witnesses at the trial,
would rather cease to associate with the
Plaintiff if they thought he did not deserve
the title the Defendant had bestowed upon
him than if they believed he did ; and be-
sides, I think — 1 speak for myself — I think
it can be no loss to any man, but rather a
distinct gain, to be deprived of the consort
of such friends as the Plaintiff appears to
have been— ahem ! — blessed with.

"As to the term villavn or villein — for it
nowhere is shown which spelling the Defen-
dant intended — let us consider whether, as
applied to the Plaintiff, it is a defamatory
word or not.


"A villein, if I have not forgotten my
Oxford learning, was one who did odd jobs
— and so does the Plaintiff, very. A villein
carried food to the pigs — but the Plaintiff is
a tout, and supplies sporting intelligence.
The villein was dependent on a lord, and
was his 'man' — the Plaintiff hangs on to
several noble peers, yet I hardly call him
a man — ' Homo sum : humani nihil a mc
alienum puto;" but as to what I think of
the Plaintiff — well, I say nothing.

"But, to put a, perhaps, somewhat ex-
travagant hypothesis, even if the Plaintiff
be not a villain, I cannot see evidence that
the Defendant called him so of malice, for
may he not well have been deceived by the
Plaintiff's appearance ?

" I am far, very far, from being satisfied
that the Defendant maliciously called the
Plaintiff what he did eventually call him.
His conduct was very probably the result of
sincere belief, and — if I may venture to use
the words of a poet whom I, perhaps, should
Qol name —


• And gentle wishes long subdued,
Subdued and cherished long ! '

" I shall assuredly not disturb the finding
of the jury ; not, I would say, because I have
more tlian a becoming respect for verdicts,
but because, all things considered, I have even
less for the Plaintiff.

" It has been said at the bar that by this
decision the Plaintiff will lose his character.
Well, then, be it so. I can only say, in his
own interest, that I sincerely hope he may ;
better were it to have no character than his
present one.

"It has also been pathetically observed
that he will be made a beggar ; but, when
that time has arrived, no one will any longer
have a right to say — nor do I say it now — that
his property consists of money which he has
dishonestly come by.

" The Defendant must have judgment, with
costs, if he can get them."

A case in the books, much less noticed than
1 think it deserves to be, is that of Gules v.


Saltire, which resulted in a judgment so in-
teresting and important as to be a sufficient
excuse for my here reproducing it.

John Sinister had died, leaving a will which
contained a bequest in the following words : —

" / (jive and bequeath my tortoise-shell snuff-
box, and one dozen of my silver tea-spoons —
videlicet the fiddle-pattern ones — to my father. "

Now John Sinister was indebted for his
existence to William Saltire — the respondent
— and a certain Mary Chevron; but, whether
from conscientious objections, or forgetfulness,
or pressing engagements, I know not, it hap-
pened that these two persons had never been

The question which — having first been
declared by a Vice- Chancellor to be no ques-
tion at all, and then decided in favour of
William Saltire — at length came before the
Court of Appeal at Lincoln's Inn, was,
whether Saltire was entitled to the said goods
as being the fatlicr of the testator.

The following judgment was delivered : —
" Immoral, but not unusually immoral, has


been the conduct of William Saltire; filial,
legitimately filial, the testamentary behaviour
of John Sinister. — A son born in wedlock is
enjoined by the law to support his father, if
support be necessary to his declining years. —
But the solicitous generosity of Sinister con-
tinues beyond the threshold of the tomb ; and
if Saltiix must go without this filial aid, it is
because, by reason of his own unkind neglect,
his genealogical tree is but jjlatanus coelebs,
and must stand alone, till, covered with the
hoary frosts of age, and beaten by the adverse
winds of litigation, it fall, a ligneous ruin, to
the ground !

" It is fully admitted that if Saltire be in
law the father of Sinister, he is then entitled
to enjoy his substance ; just as Saturn de-
voured his children, and as many an old man
since has lived upon his son. But is the
Respondent the father of the testator '. I
declare, unhesitatingly, that he is not.

" A man born in such an informal way as
John Sinister, is said by the law to be nullius
filiue; and I. if he be the son of nobody, find


it not less difficult to point out the father of
such a man than to put my finger upon the
mother of Pallas Athene.

" I have read that it is the custom in the
Empire of Cathay to ennoble his ancestors
where we should make a man a peer. Sup-
pose the testator — being already nullius filius
— to have been a Chinaman as well. Whose
name then would the vermilion pencil have
traced upon the roll of that antediluvian
nobility? Would William Saltire have taken
his place amongst those posthumous peers ?

" It is plain, it is palpable, that we are
forbidden by the law to say that the testator
was the son of any man. ' The common law
only taketh him to be a son whom the mar-
riage proveth to be so,' to quote the words
of a treatise whose high authority is hardly
equalled by its even higher antiquity.

" Here, however, there was no marriage at
all j and, therefore, I am of opinion, clearly
and distinctly, that it is not allowable to say
that John Sinister was a son. Conseqxiently
he was not even nullius filius, bixt rather


nullus filiu.f. Now, though he clearly was
not a son, I must proceed to consider whether,
in law, he had a father.

"It is by no means sufficient that William
SaUire was a father, as a conscript father, or
a father of lies — colloquial expressions prove
nothing but their own utter nonsense — he
must have been John Sinister 'a father in law;*
but, if this relationship were established,
Sinister would be Saltire's son, and this is
impossible, for he is not a son at all, as we
have already very sufficiently seen.

" It is in no way material to inquire whether,
in these circumstances, it was possible for
the testator to have had a mother ; but I
am bold to declare that, were it necessary, I
should most certainly hold that he was an
orphan ah initio.

" It is gratifying, most gratifying, to know
that John Sinister has found the conclusion

* The learned Judge's language is here, I am afraid,
open to misapprehension. This position certainly can-
not be maintained if we insert two hyphens— and per-
haps is not unassailable if we omit them.


to the long dilemma of his life, and that now,
after the close of his isolated existence, he at
last reposes in the arms of his only legitimate
parent — his mother Earth.

" The decision of the Court below cannot
be sustained. Our judgment is for the Ap-
pellant — with the usual consequences."

I shall now give a few passages from a cer-
tain judgment delivered in the well-known
case Grariped v. Curricle. A man had been
knocked down and run over byahorseand cart,
wherefore he brought his action for damages.

After making a terrible exhibition of the
pleadings, and indulging in some pleasing
recollections of special demurrers, the learned
Baron proceeds thus : —

"The Plaintiff must have been in the way,
otherwise he would not have been run over.
Now, the cart was going very fast, or it was
not. If not, the Plaintiff should either have
got out of tin- way, or never have got in. I
care not which ; nor need any one else.
But, if it were going at a great speed, what


must be the cause of thai '. Why, I say win
— because it is certain — why, the impulsive-
ness of the horse, for no vehicle can draw
itself. Now, is the Defendant to be held
responsible for that? There is no evidence
that he caused it ; as by tying a firework to
the animal's tail — which indeed was a short
one ; or by driving with a goad, or trident,
for a whip. The impulsiveness results from
the horse's being well fed; and, if Defen-
dant did not feed it well, some one would
certainly prosecute him; not that 1 mean to
say the 'Society for Preventing Cruelty to
Animals' are here l^esponsible in damages;
by no means.

" But, again ; is not this a ease of vis major .'
Is it to be said that Defendant is bound to
hire a driver able to hold his horse, even
when it is most restive? Is a mariner neg-
ligent who fails to propel his vessel against
tin- wind? Is a soldier to blame who can-
not subdue an enemy stronger than himself?
If so, a Defendant would lose his action
though he had employed Nelson to sail his


ships, and it would be negligent to give the
command of an army to a Napoleon. As
well might it be said that the Plaintiff's
counsel has argued badly because he fails — as
surely he will — to get my judgment in his
favour. Yet he may bare argued his best —
though I hope not.

"A horse does not go too fast unless he
cannot be pulled up ; and, if he cannot be
stopped, how is it negligent to let him run ?

"Moreover, if the horse came at a high
speed, there must, of course, have been much
noise ; and then the Plaintiff ought to have
taken, or kept, himself out of danger.

" I think, then, that in this action, the Plain-
tiff cannot recover, though in the hospital he
has done so — which is another reason against
him ; for surely as nemo his vexari debet fro
eadem causa, so no one should recover twice
for one injury.

" Oh yes ; I wish to add that none of my
brothers agree with this judgment."

In the leading case under title Warranty —


De Fraiuh- v. SnqfflebU — is to be found tlie
following most exhaustive and authoritative
exposition of the law on the subject : —

"The question al present awaiting our de-
cision is one of the very highest importance,
and of the mosl genera] interest to the public.
It is whether a horse warranted by the De-
fendant to the Plaintiff as being 'quiet in
harness,' were so, or whether it were not.

" It appears from the evidence given at the
trial — and which I now hold in my hand —
that) immediately after the purchase of the
quadruped in question, that is to say, on the
twenty -ninth day of February of last year
— and I may here say that I have, beyond
doubt, ascertained this to have been what is
usually denominated 'leap year, 5 which shows
that the day alleged is not what I have here-
tofore called an ( impossible date - the Plain-
till', with due caution and circumspection,
proceeded to attach the horse to his cart, for
the purpose of returning home, having been
lucky enough to dispose of his own horse at
the fair. Now, I find that, immediately upon


an attempt being made to put the bridle over
his ears, the horse threw out his heels, and
kicked the Plaintiff's groom — who must, there-
fore, have been present — in the left eye ; or
rather in the place f that organ, for he was
one 'cut lumen ademptwmj as, fortunately
for him, he had already lost it by reason of
an accident when shooting wild ducks in
Lincolnshire ; a dangerous, and it would seem
an unprofitable, pursuit.

"The Plaintiff, then, having first, very pro-
perly, inverted the collar in the ordinary
manner, seems next to have tried to put it
over the horse's head (purposing, I imagine,
to subvert it, or turn it round, as soon as he-
had done so), and I should hold the collar,
whichever end might be uppermost, to be
harness, within the meaning of the warranty ;
but the horse, actuated by some motive of
which, not having felt it, I am unable to
judge, bit the Plaintiff n the ear, either the
right or the leftj I for the moment forget
which (nor indeed is it very material for the
purposes of this case to determine which ear


was so injured, nor, for that matter, to ascer-
tain whether the Plaintiff were bitten at all).
After this display of his intractable temper,
and his objection to conform to the conven-
tionalities (so to speak) of equine existence,
the horse galloped away — though in what
direction docs not appear — and has not since
been discovered, or indeed heard of in any

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Online LibraryCharles J. Darling (Charles John Darling) DarlingScintillae juris → online text (page 1 of 5)