Page:The Green Bag (1889–1914), Volume 08.pdf/512



CURRENT TOPICS. A Critic Who is Just Right! — "Modesty is what ails me," said Artemus Ward, and the Chairman is generally too modest to reproduce the kind things said to him by his editorial and professional brethren, but really, the March wind from Canada never has blown to him anything else so grateful as the following from Mr. Charles Morse's " Causerie," in the March number of the " Canada Law Journal," which has just come to his notice. He accepts it, Horace and all, very grate fully:— "The Boston University Law School is to be congratulated upon having secured the services of Mr. Irving Browne as one of its lecturers. Mr. Browne's scholarly ability as an editor and treatise-writer have won for him a distinguished reputation both at home and abroad; while his witty pro ductions in legal verse have a rare charm for those who de light to blend the strong waters of case-law with the nectar of Helicon. The latest honor conferred upon him prompts us to hurl a bit of Horatian philosophy at him and say, — ' Mediocribus esse poetis Non homines, non di, non concessere columnar! '"

A Smudge on the Mirror. — The following de serves reproduction in full : — "Mr. Frederic William Maitland is no respecter of legal traditions and myths. On the contrary he is an iconoclast of the most ruthless kind, and whenever he penetrates into the temples where our professional forbears were wont to worship, the idols and oracles there statant and couchant have a very bad quarter of an hour. In his' Introduction to the Parliament Rolls of 33 Edward I,' he very effectually dispelled some clouds of error that had long enveloped the orii;in of the remedy by petition of right. In the ' History of English Law before the time of Edward I,' written by him conjointly with Sir Frederick Pollock, he reforms some false and deep-rooted notions as to the authorship and au thenticity of certain archaic repositories of the common law, such as the works known as ' Leges Henrici,' ' Leges Edwardi Confessoris,' the 'Tractatus de Legibus et Consuetudinibus Anglias,' and the 'Dialogus de Scaccario.' But all his previous assaults upon the citadel of legal fiction are put into the shade by his recent fatal cudgelling of the ' Mirror of Justices.' Now to such of us as were launched upon the deeps of the common law in the old days when Coke upon Littleton and Blackstone's Commentaries were still the chief beacons that illuminated that ' weltering waste,'

the ' Mirror ' was a work not to be approached lightly or to be spoken of with irreverence. We bore in mind that my lord Coke lauded it as ' a very antient and learned treatise of the laws and nsuages of this kingdom of England,' and that Lord Somers regarded it as of equal authority with Bracton and Eleta. Nor indeed did we find the work lacking esteem even in our own times and in American courts. In the well-known case of Briggs v. Light Boats, etc. (II Al len, p. 166), Mr. Justice Gray refers to the ' Mirror ' as an authority to show that in the early days of English law the sovereign was amenable to an ordinary action at the suit of a subject. This then being premised, it will not be won dered at that we old-fashioned people sustain a very pro nounced shock when we peruse Mr. Maithmd's Introduction to the edition of the work in question recently published by the Selden Society. We are not fond of neologisms as a rule, but we must say that the adjective 'baresark,' as coined at Mr. Ryder Haggard's mint, seems to most aptly express the state of mind produced in Mr. Maitland by the many proofs he finds of the author of the ' Mirror's ' per sistent trifling with historical facts. Indeed, to judge from the strenuousness of Mr. Maitland's language, neither Bar on Munchausen nor Count Cagliostro could hold the palm of mendacity against this ancient commentator upon the common law. Let us quote from his screed: 'Our author's hand is free, and he is quite able to do his lying for himself, without any lying from Geoffrey of Monmouth or any other liar. He will not merely invent laws, but he will invent legislators also; for who else has told us of the statutes of Thurmod and Leuthfred? The right to lie he exercises unblushingly. . . . Religion, morality, law, these are for him all one; they are for him law. . . . That he deliberately stated as law what he knew was not law, if by law we mean the settled doctrines of the king's court, will be sufficiently obvious to anyone who knows anything of the plea rolls of the thirteenth century.' It is quite obvious that Mr. Mait land's manner here has not that repose which stamps the caste of the dispassionate critic; but nevertheless he quite effectually disposes of the 'Mirror's' claims to authority, and consigns it forever to the charnel house of defunct im postures." Mr. Morse will pardon us, we are sure, if we point out exactly what Mr. Justice Gray did say on the subject. It is as follows : — "The petitioners contend that at common law the sov ereign could be sued without his consent. But it is, to say the least, very doubtful whether this position can be main tained. The earliest assertion, in an English law book, of the king's liability to an action, is probably the statement in the Mirror of Justices," etc. " But the Mirror is of no A 69