A Century of English Judicature. of the plaintiff, then it appears to me that that which the defendants were doing they were doing at their own peril; and if in the course of their do ing it the evil arose to which I have referred, namely, of the escape of the water and its passing away to the close of the plaintiff, and injuring the plaintiff, then for the consequence of that, in my opinion, the defendants would be liable."
Indeed, I am acquainted with only one instance in his judicial career where he ex pressed in full detail the logical process by which he reached his conclusion. That case is Ward v. Hobbs, 4 App. Cas. 19. For a fine specimen of his skill in exposition, refer ence is again made to his speech in the Windham case: "It may be convenient," he said to the jury, " to remind you what the precise issue is. You are to decide whether Mr. Windham is incapable of man aging his affairs — not whether he is of unsound mind, but whether he is incapable of managing his affairs by reason of unsoundness of mind. The ob ject of making that distinction is plain and simple. There are many cases in which a man may be said to be incapable of managing his affairs. He may be incapable by reason of ignorance, or on account of inexperience and want of peculiar skill, or because of a preference for literary or other pursuits of a kind utterly unconnected with the management of property, or in consequence of a ruinous and invete rate habit of gambling. Such a person may justly be said, in a certain sense, to be incapable of man aging his affairs, and, indeed, the Roman law made no distinction between unthrifts and idiots. But in England a man cannot be deprived of his personal liberty or his property on the ground of incapacity, until a jury of his countrymen are satisfied, first, that he is incapable of managing his affairs, and, secondly, that his incapacity arises from unsoundness of mind. Moreover, you are to bear in mind that the presumption is in favor of sanity, and that it lies upon those who allege unsoundness to make out and prove their case. I call your attention to the peculiar nature of the insanity alleged in the petition against Mr. Windham. It is not an ordinary case of insanity accompanied by delusions — a case in which the great and critical test of sanity is the ab sence or presence of hallucinations.—-but a case of imbecility approaching to idiocy, or amounting to unsoundness of mind. In a case of insanity accom panied by delusions, the mode of investigating it, so as to arrive at the truth, is a matter of great diffi culty and doubt; but in a case of imbecility, where there is either no mind at all or next to none, the task of coming to a right or just decision is com
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paratively easy. It is impossible for a man who is said to have only a limited amount of mind, or none at all, to assume at any moment or for any purpose a greater amount of mind than he really possesses. If the mind is not there, or only there in a certain small and limited quantity, no desire on the part of the individual to show a greater amount of mind, or to assume the appearance of a greater amount of mind, can supply him with that which nature has denied him. Hence when a man is charged with imbecility, if it can be shown that for a considerable time and in various situations he has acted like a natural being, any acts of folly which might be al leged against him should be carefully, deliberately and keenly investigated, because at first sight it is next to impossible that a man cati at certain times assume a mind and intelligence which are wholly absent."
Cairns was never given, like Jessel, to bringing his own individuality into a deci sion. A man of fine classical and literary attainments, his opinions are never stilted or academic. The frugality of the style by which he conveys his unbounded fertility of thought is truly remarkable. Of words or illustrations or expository digressions, he is sparing almost to the point of barrenness— he is so terse as to be almost cold; he never relaxes for a moment the tension of the argument. All the characteristics just mentioned point toward the most conspicuous quality of his opinions—lucidity. The most com plex legal problem presented no difficulties to him. Such was his intuitive insight into legal principles that by his simple statement he would place it in so simple and clear a light that one wonders why there should ever have been any doubt about it. He disembarrassed himself of details and grasped principles, and by strict logical de duction from general principles about which there could be no dispute he not only settled the law, but also terminated discussion.1 He had, moreover—and this was his crowning gift—that cultured imagination which is essential to the highest juridical art. Imag
- A comparison between his solution of the case of
Goodwin v. Roberts, i App. Cas. 488, with Chief Justice Cockburn's judgment in the lower court ( ю Ex. 337) will illustrate his habit of seeking ultimate principles.
