The Green Bag
516
Even in the dry well of law, humor may bubble forth if one in digging for the spring
use as his implement the pick
of common sense and discard the subtle ties of too nice analysis. Humor in the law is of two kinds, the conscious and the unconscious. The quality of conscious humor is, unlike mercy, somewhat strained, though it
may be twice blessed; and to that kind of humor one needs no pointing star. But the unconscious kind, the kind
that necessarily results from straining the law and the facts to meet the appar ent exigencies of justice and to make a
particular result more merciful than general precedents would compel, re quires perhaps a personally conducted tour in order to have its delights appre ciated truly. Far be it from me to attempt completely to cover this com prehensive subject.
I can only try to
point out a few instances of judicial humor as perpetrated by the Supreme Judicial Court of Massachusetts in recent years. At this point I ask permission to
Court believes in sacrificing this essen tial attribute to a sense of expediency. Believing itself appointed and anointed to blaze the path of justice in an untried wilderness, it conceives that precedents are not for wise men, that what has been may perhaps help but must not hinder
those who are explorers in the realm of law, and therefore, in its peregrinations in search of justice, its only compass has as its magnet merely the collective guess of all as to what is expedient under the circumstances.
Moreover, the Court apparently has read and remembered the words of the bard: “If 'twere well done when 'tis done, 'twere well 'twere done quickly"; and therefore haste is always regarded as of the essence of a decision. The Court renders anew the phrase to read.‘ "'Twere well done when 'tis done quickly." May I suggest that sometimes one may decide in haste only to repent
at leisure? The motto I suggest as appropriately expressing the foregoing alleged tenden cies, is
digress a moment, that I may comment
EXPEDIENCY + EXPEDITION = JUSTICE on the too evident tendencies of this august body, if I may do so without seeming unduly irreverent. I admit and admire the great knowledge and the high purposes of the Court. It is not,
Revenons (1 nos moulons. It is amusing but none the less a judicial fact that an eye witness of an accident is one who
does not see the accident.
The case of
however, a divinity; it is but a combina
Lewis v. Brotherhood Accident Company,
tion of human units and as such it must and does have a common attribute of
194 Mass. 1, conclusively proves this otherwise doubtful proposition. Ap parently, a blind man has more possi bilities as a witness than has been here
humanity, to wit, a proneness to err. I also concede that the way of a critic
is much the easiest way, but in Boston we are only forbidden to see “The Easiest Way"; we still may, if we wish, pursue it. With this apology as a pre liminary, I go on to say that I have in
mind a motto, which, if the Court knew itself, it would emblazon on its rescript
paper.
Individually, each member has
good common sense.
Collectively, the
tofore generally supposed.
The song which says “I'd rather be outside a-looking in than inside a-looking out" has lost its meaning now, for in Nash v. Webber, 204 Mass. 419, the
Court declares that “in” is “out." A staircase outside the house is in the house. The plaintiff in that case was with the ms" rather than with the “outs" at
