Page:The Green Bag (1889–1914), Volume 10.pdf/478



CURRENT TOPICS. "Spec1ally of Dogs." — Whenever the Chair man finds himself bored, and there is no new novel that appeals to him, he takes down Bishop's " NonContract Law," and nearly always finds something new and entertaining. Strange to say it was only the other day that he discovered that the great author has a chapter of four pages, " Specially of Dogs,'' The first section is as follows, "Anomalous. — The position of dogs before the law is anomalous. Almost the only thing to be safely said of them, in view of all the shifting circumstances in which they may be placed, is that they are animals; and that any adjective possible to be set before the word 'animals' will spoil the truth of the expression. They are and are not prop erly, are and are not domestic creatures, are and are not wild ones, are and are not public nuisances, and so to the end. The common law has its ideas of them, legislation has its different and shifting ideas. And it is the same outside of the law; as some forms of philanthropy seek chiefly the good of men, others regard dogs as meriting the highest protection, and frightened babies tottering in their first attempts to walk, as the proper food for dogs. Selfishness pets the dog that plays with it and protects his accumulated pile; the honest neighbor whom the dog an noys, and whose family it keeps in perpetual trouble, vainly protests. We might thus go on through a long enu meration of the moral and legal adjuncts of the dog, all anomalous." Mr. Bishop scoffs at the doctrine of imputed neg ligence so long prevalent in England, whereby a child loses his suit on account of the carelessness of "his father, grandmother or mother's maid." Mr. Bishop's grim humor even slops over into his index (which he is careful to assure us he made him self). Thus we find: « THINK duty of legal per sons to, 12 1 1," and on turning to that section we discover that he comes down hard on Lord Bramwell, a person of whom it would seem it cannot well be said he erred in " not thinking." but rather by thinkingdifferently from the great majority of thinkers; an animadversion to which Mr. Bishop himself is often subject. The profession all know that the common law is to Mr. Bishop as a fetish, but we have just discovered in this work the most slavish expression of this idolatry.

It is as follows : "As well might we long for a change in the One Maker and Preserver of all things as in the common law. Yet as we desire that man may grow in obedience to his Maker, whereby his acts will more and more accurately express the higher will, so also we trust that the adjudication of our courts will constantly improve in their necessarily somewhat imperfect conformity to the common law.'' Now as what law is, is only to be found in decisions of magistrates, and as there is no common-law question upon which the magistrates have not made and re ported adverse decisions, it seems somewhat difficult to dictate as to which of these priests shall give way, and thus enable mankind to find and conform to the law. But a man who is exclusively in love with the common law is like one who is in love with the ideal woman; he can't point her out. So far astray does this blind worship lead Mr. Bishop, that as the com mon law excuses a lunatic for ostensible evil doing of a criminal nature, so he argues it ought to absolve him from liability for a civil tort(sect.5o6). So we pre sume Mr. Bishop would excuse those literary thieves who continually steal and publish his ideas in law books and at whom he is constantly railing as the worst of transgressors, if it should appear that they were not of sound wits or had a kleptomania in respect to such literary wares. Mr. Bishop is a keen critic, but like most critics, is sometimes chargeable with the very faults which he criticises. For example : he criticises the opinion in Kingsbury v. Dedham, 13 Allen, 186, an action for fright of a horse, caused by a pile of gravel in a high way, because the court deny the liability of the town and liken the case to one of a small piece of white paper or a tuft of hay lying in a highway and equally frightening a horse (p. 457). And yet in his stric tures on Fletcher v. Rylands, the famous case of the escape of water from a reservoir, he ridicules the de cision by likening it to the escape of water from a bath-tub or of gas from a pipe (p. 387). If the one comparison is trivial so is the other. The reductio ad absurdum is frequently misleading. The most famous example of its use is in Priestly v. Fowler, 3 M.&W., 1, where on the contention of the liability of the master for the consequences of the negligence of one servant to another Lord Abinger said, it would 443