"The prisoner has been found guilty after a perfectly fair trial. Nothing except the circumstance that this is a capital case prevents me from saying that this is a frivolous appeal and a waste of time of this Court." The Home Secretary was petitioned to grant a reprieve, which was refused. The procedure in this case was almost simultaneous with that in the notorious case of the two boys convicted of a cruel murder in the City of Chicago, and the long delay, the lengthy trial and the ultimate sentence in that case, may profitably be contrasted with the brief proceedings and the summary disposition of the Mahon case.

In my remarks at the dinner of the Law Society I said that I was inclined to think that in America we were a little more inclined than in England to make a fetish of some features of the common law, especially those which related to procedure, which in England have long since been abandoned. A few of these may be mentioned:

The tendency in America has been to prohibit a Judge from commenting in a jury trial upon the credibility of witnesses or upon the weight of evidence. The latest evidence of this tendency is the passage by the Senate of an Act to prevent federal judges from making such comments. In England the tendency is the other way, upon what seems to me to be the correct theory that juries, being generally inexperienced in weighing evidence, need by suggestion, and to a certain extent by argument, to be assisted in arriving at conclusions. Making a judge a mere moderator presupposes that a jury cannot resist the effect of a bare expression of opinion on his part. While we were in England there was an interesting murder case tried in Scotland where the

defendant was charged with arsenic poisoning. I cannot do better than to read an extract from the charge of the Judge:

"Regarding the failure to secure medical assistance, the Judge said there must have been a lamentable want of the ordinary power of observation and of commonsense, but it was going a long way from that to say that that necessarily indicated a criminal intention. In regard to the accused's silence about the arsenic, he said it was proved from a good many incidents that the accused was unfortunately a person of no moral character. Time and again, when faced with a somewhat awkward situation, he made petty excuses in order to avoid the unpleasantness of facing it. It was a want of moral courage. Even if there had been no reconciliation such as was spoken to, the mere fact that a certain amount of friction existed between father and son over the profession which the son was unwillingly adopting was a very inadequate motive for an act of murder. Finally, he asked if the failure to explain the presence of arsenic to the police was not just another instance of the lack of moral courage which time after time led the accused to evade an unpleasant duty."

We can hardly conceive of a Judge in America indulging in such an analysis as this of the evidence. The jury, after an absence of 25 minutes, returned a verdict of acquittal.

American lawyers were impressed with the fact that no longer are the English courts hampered by antiquated rules of evidence. The trained barristers who try cases rarely make objections or take exceptions. It would not be possible that the wrangling we so frequently see in this country over the admission or exclusion of evidence should occur in the English courts. It

would not be tolerated; nor would appellate courts patiently listen to arguments that judgments should be reversed for error in the admission or exclusion of evidence. The greater liberality in admitting technically objectionable evidence is merely keeping step with modern scientific methods of ascertaining truth. We too rigidly adhere to the traditions of the common law of evidence, and a liberalization in our procedure would, in my judgment, be wise. In criminal cases the presumption of innocence is not regarded in England with that sanctity which in this country has resulted in a lax administration of our criminal law. In pleadings, both criminal and civil, we have much to learn from the simplified English procedure. More than in the English courts we have accentuated precedent as a feature of the common law and we are consequently tottering under the weight of an enormous accumulation of law reports which include thousands of decisions of little value or authority.

I would not advocate an application of English procedure to the administration of justice in this country, without careful discrimination to adjust it to our peculiar conditions. But it is the high merit of the common law system, both of procedure and of jurisprudence, that it is flexible. It has been built up upon local custom and environment and the needs of the existing social and business conditions. It must be adapted to such conditions if it is to be a useful agency for securing justice, and a too rigid adherence to ancient traditions and archaic technicalities will tend to defect its chief purpose.

In closing, I wish to call your attention to an editorial which was published in the London Times in the week following our meeting. It was entitled, "The Common Law," and opened with these words:

"The Captains and the Kings of the Common Law are departing this week. Our visitors from the New World are extending their pilgrimage beyond Westminster and the Courts of Justice are closing for the Long Vacation. The past ten days may well have an historic significance in the history of English-speaking nations as well as in that of the Common Law." The writer then referred to our Constitution and Declaration of Independence as "emanations of the Common Law, with its fundamental conceptions of justice and freedom, of an independent judiciary, of an executive subject to the ordinary law, of a Legislature ultimately responsive to the will of a people in whose hearts and minds the rule of Law reigns." Americans who might have apprehensions that threatened amendments to our Constitution were a menace to our institutions, were reassured because such changes were to be expected in a self-governing nation:

*

"England has been through all these agonies of public life and has found that the essential principles of the Common Law, set forth by men of ability, character, and determination, have overcome all dangers. * Were the law perfect, its functions would be near their end, a dead law for dying peoples." The writer added that while the processes of growth showed conditions of imperfection and necessitated legislation and litigation, they also afforded the opportunity for the application of profound and correct legal principles. Weight is given, the article continued, in the House of Lords and in the Judicial Committee of the Privy Council to decisions of American courts, particularly those of the Supreme Court of the United States, and the interesting suggestion was made that some international body be created which can speak "ex

cathedra to the whole dominion of 'Our Lady of the Common Law,'" and to that ultimate end that some relation be established between the courts of England and of the United States. The editor concludes:

"It would surely be possible, without infringing the constitutional standards of either country, to make some amicable arrangement on these lines for the specific purpose of the interpretation of important legal points in the light of a common experience. Certainly a decision on some purely legal question by, let us say, the Supreme Court of the United States on which pro hac vice a member of the House of Lords or of the Judicial Committee was sitting by invitation would carry a new weight and create a new standard. The same would be the case if some member of the Supreme Court were invited to sit with the House of Lords or with the Judicial Committee. Such an extension of the idea of a standard is in the spirit of the expansion of the Common Law, and would do much to prune and regulate its rampant growth. Occasions of the temporary transfer of Judges would be infrequent and would lend a new reality to a Rule of Law that already governs the affairs, directly or indirectly, of the greater part of mankind."

It is not necessary for my present purpose to consider whether it would be practicable to put this extraordinary suggestion into effect. But its value and significance at this time is that it not only preaches a spirit by which we may well be moved in all our projects of law reform, but it is eloquent testimony of the desire of the British people to go more than half way in extending to us the right hand of friendship and in confirming the relations of amity which happily now exist and which will enable the two countries by their combined moral, political and physical strength, to preserve the peace of the world.