The life of a nation, like the life of an individual

The constitution so shaped is ours for use, for the recital of our British North America Act sets forth that the Provinces desired for the Dominion a constitution similar in principle to that of the United Kingdom. The desire was satisfied, and Canada has one of excellence, none better, in which to develop its coming greatness. Canadians also inherit from the same source the Anglo-British civilization, the best of all ages; best because Christian, for it contains that vitalizing spirit of Christianity which preserves it from disease and dissolution. For the spirit has life in itself.

Unless a strong dominating majority of our people feel the impulse of that dynamic and react to it, our civilization has no assurance of continuance, and may revert to paganism, modern in form it may be, yet having ever inherent the germs of disorder and death, and perish. So it was with Rome, of which one wrote:

"On that old Roman world disgust

And secret loathing fell,

Deep weariness and sated just

Made human life a hell."

The same with Greece, thinking of which, Byron mused:

"This is the moral of all human tales

'Tis but the same rehearsal of the past;
First freedom and then glory, when that fails
Wealth, vice, corruption, barbarism at last.
And history with all her volumes vast
Hath but one tale."

Britain has persisted in strength because and only because it has adhered to the law of Christianity, a law which attaches to every wrong and error a measured penalty and to every rightness and prudence an assured reward, a penalty the remission of which cannot. be purchased by money, a reward the promise of which cannot be broken.

In that light which the past projects upon the future and gives wisdom, in that faith which gives courage, and in that spirit which impelled the great lawyers of our ancient days in their work of law construction and consolidation, let us press forward the similar great objects of our Association, not forgetting the teaching of history that progress toward improvement is retarded by obstacles and is made. only by a persistent overcoming of them.

'Tis weary watching wave by wave,
But still the tide heaves onward,
We climb like corals grave by grave
That pave a pathway sunward;
We're beaten back for our next fray
A newer strength to borrow,

And where the vanguard camps to-day
The rear will rest to-morrow."

JURY TRIAL-AWARD OF DAMAGES "AVERAGING" ESTIMATES OF WITNESSES. There is an interesting note in the privately printed journal kept in 1840 by a sister of the late John Langton, formerly Auditor-General of Canada, when the family was living at Blythe, in the Township of Verulam, near Peterboro, Upper Canada:

"Law is rather curiously carried on in this irregular country. On one occasion damages had been awarded and the jury gave some curious sum ending in odd shillings, pence and half-pence. It was proved that they had not been able to come to an agreement what the sum should be, so struck an average of the different amounts claimed."

Sixty years later the Supreme Court of Canada, in two cases, set aside awards which proceeded upon the same wrong principle of taking the average of estimates of the witnesses examined. See Grand Trunk Ry. Co. v. Coupal, and Fairman v. City of Montreal

'(1898) 28 S.C.R. 531. * (1901) 31 S.C.R. 210.

535

CANADIAN BAR ASSOCIATION.

ADDRESS BY THE RIGHT HONOURABLE LORD DARLING.1

Mr. Chairman, ladies and gentlemen:-After what the Chairman. has said, I wonder that I didn't fly from the room at once, for I cannot expect to come up to anything like the point which he has marked out for me-each milestone along the road being a Lord Chancellor, except one, and that was a man who refused to be a Lord Chancellor. I feel like one must have felt many years ago who said— I am the least of the apostles and hardly fit to be counted an apostle. And then again when I reflect how far I have come-as it seems to me-I know to some of you from here to England is no distance at all, and that is particularly true of Americans. We asked a few of them two years ago to come to England, and they all came. I am not an American, and so to me it seems a very, very, long way; and if anyone comes to you from so far-let us say from the moonyou naturally expect him to tell you something which you could not have thought of for yourself. I had until lately some sort of expectation that I might have been able to do that to some extent, but the expectation has vanished-gone. I had thought of a few weighty historical facts-they have all been laid before you by Sir James Aikins this afternoon. I had thought of a few remarks to makevery spirituels-but they have all been said by your guest from the Paris Bar, and so I must fall back upon the bare remains of the things I had meant to say, and must ask you to be so indulgent as to put up with them. This recommendation I have—they will be much fewer than if Sir James Aikins and Maître Chresteil had not superseded me.

And now, before I say any more, I must tell you how difficult I find it, not only adequately to respond to the invitation with which you have honoured me, but to follow the latest of those who stood in the position in which I now stand. Last year your guest was Lord Buckmaster, and I know, because I have read it, how admirable an address he delivered to you. I cannot hope to emulate him. We know him well, and it is true to say of him, as was said of a great English lawyer before him

'Delivered at the Eleventh Annual Meeting of the Association at Saint John, N.B.

Graced as thou art with all the power of words,

So known, so honoured, in the House of Lords."

Yet I have had but a short interval to try to interest you, when the voice of Lord Buckmaster is as yet hardly silent in this Dominion of Canada.

But now what can I talk about? You have been told that I hoped to say something of the administration of justice. You have been told by Sir James Aikins how it was that there came to be laws in England. There were of old a few blue painted barbarians whose family history he gave you. He said that after a time some of them. were driven into Wales and the rest were driven into Scotland, and then he went on to say that one of these Scots had come back here, and that one was asked-Sir Francois Lemieux asked him-to deliver a speech, which he did, and he explained how the laws of those barbarians owed very little to the English-it was about the only thing they didn't owe them. But they had taken a fancy to French law and to the French. I don't blame them-I rather fancy the French myself and they had formed a very strict alliance with France, until, as it happened, owing to family circumstances, the King of these Northerners found himself King of England, and then he came and was good enough to do something to improve the laws of England. Such as they are-wherever they came from-whether from Wales or from Scotland, or from the Romans or from the French, I was one of those who long had to administer them, and I was not the first of my name to help to do justice according to the laws of England. Sir James Aikins told you that there were Judges in the time of King Alfred, who thought it necessary to get rid of a certain number. Chief Justice Mathieson explained to us what was the method employed when they wanted to get rid of a Judge from Nova Scotia. King Alfred's methods were more drastic. I think Sir James Aikins said that he executed forty-eight of them, as is written in the Mirror of Justice. Now Sir James Aikins has been most kind, most generous to me ever since I have been here, and I want to thank him now for a little act of courteous reticence which he performed in the course of that speech. He quoted the Mirror of Justice-I would not mention this except that I know his having done so will lead some of you to buy a copy of that book and read it. If you do, when you come to this feat of King Alfred, you will find this: "He hanged Darling for the retreat of Sidulf's son, who afterwards acquitted him of the fact." Sir James Aikins may admire King Alfred as much as he likes, but in my family this form of justice, which in the

home of Mr. Macmillan is called Jeddart justice, which consists in carrying out the sentence first and trying the accused afterwards, and which in this case would have led to his acquittal-as I say, in my family King Alfred is not so highly thought of. I had intended, and I shall presently, to speak of the administration of justice. But I don't give that as an example of the administration of justice at all. But even among the wildest people, such as Sir James Aikins spoke to you about, it has been recognized that you must have laws. It is said necessity knows no law, and yet we find that some of the most necessitous of peoples have a great many laws. It was found necessary to have laws even where there was nothing-where people owned nothing but their lives, and it was written long ago

66

Kings have their edicts, cities have their charters;

Even the wild outlaw in his forest walk

Keeps yet some touch of civil government."

And so, however far back you go, or however late you come down, it is necessary to have laws, and it is useless having them if you do not have them well administered-administered by people like me-for I am now taking what the Chairman said about me seriously. It is no good having all the laws that can possibly be made if they be not administered by people wiser than those who make them. This simple truth was perceived by Mr. Pope, who wrote:

"For forms of government let fools contest,

Whate'er is best administered is best."

And so it is with you and me--lawyers all of us, except the ladies, and even some of them. It is because we are engaged in this absolutely necessary art of administering the laws-some of them very bad laws-but administering them so that the people who suffer really think they are good ones-it is really because of that, and because we have been long engaged in it, that we are met here to-night to consider a few aspects of the business in which most of us have long been engaged.

Now, it is sometimes said by business people, "Trade follows the flag," and I suppose it is true; but something much more important follows the flag and trade follows behind it-the law follows the flag, and the law that you have here in Canada you have brought here under the two flags of the greatest nations the modern world has known. They are not the same laws. They are not, as you know, absolutely the same system; but they are all made by people who mean to enforce them, and mean to enforce them firmly and intelli

35-C.B.R.-VOL. IV.