Page:The Green Bag (1889–1914), Volume 14.pdf/334

 The

Green

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Communications in regard to the contents of the Magazine should be addressed to the Editor, Thos. Tileston Baldwin, 1038 Exchange Building, Boston, Mass. The Editor will be glad to receive contributions of articles of moderate length upon subjects of in terest to the profession; also anything in the .way of legal antiquities or curiosities, facetice, anecdotes, etc. A recent number of The Scots Law Times, bewailing the " jest judicial," speaks of a certain Scottish court as a " jest-factory," and enunci ates the dictum that " a pun is the feeblest form of wit, and a judge's forensic jest is, generally speaking, the next in feebleness, while it is an easy first in fatuity." Far be it from us to de fend the " jest judicial " as sometimes " she is spoke "; the American lawyer is not without troubles of his own on that score. Yet one of the most lasting things in the law is its humor; the legal joke is coeval with the law. Even the law-student jests; as witness The Brief, the work of certain students in the Harvard Law School. We commend this clever bit of legal jesting to the attention of those of our profession — and they are many — in whom " the law's grave study " has not killed the sense of humor. And as this ephemeral publication — whose first number may be its last — is already out of print, we feel in duty bound to quote the following selections from its learned pages, premising only that the title-page bears the warning that The Brief is " copiedwrong," with " all rights re versed." SOME INSULAR QUESTIONS. The recent unprecedented territorial expan sion of the United States has given rise to ques tions so obvious that the necessity for our here discussing them may not at first sight appear to one unfamiliar with the complex organization of our judicial hierarchy (or the reverse, according to the view taken by the learned judge in the case of Smelovisky v. Onomatopoeia,' recently decided by a divided court before the Players' Bench on an appeal from the Referee's deci sion) : but of this more anon. 1 2 Harrigan & Hart, 47.

And the confusion 3 of the law on this point has made it imperative if not advisable. Ut dormentes canibus mendaciunt s (let sleeping dogs lie). Now, to turn to the burning question of the water cure.* Lord Ellenborough, in discussing this, said : "The defendant, as we understand the proce dure under the Code, was first filled with water,5 and then pressed upon the stomach vi et armis (usually a musket). The burden thus having been cast upon the defendant, was equitably distributed by the Revised Laws of Hydrostat ics. . . . The presence of minnows in the water used is absolutely irrelevant, for de minimis non curat lex. Further than this we do not care to go." But it is submitted (a) that water is not an intoxicant 6; (b) that this was a case for mari time law anyway '; (IV) that he was nothing Moro less than a Filipino; (h) that Curfew shall not ring to-night. And so the law stands to day. For in the whole mass of conflicting judi cial testimony we have not been able to find a single case of even doubtful autopsy,8 nay not even a dictum or a hot dogma, where such has been the case. Per contra, with the possible exception of some badly considered but extremely able deci sions of the Supreme Court of the United States, the Vice-Chancellor of Oklahoma is unanimous in deciding that -whatever may be the result, the answer can go but one way. To sum up : Nothing has been urged in favor of this view which cannot, with equal propriety, be urged against it, or left unurged, or urged bis ' A word has been omitted here. 3 Maxims of Hafiz, p. 48. 4 The reference to the water ordeal may be found in the Pipe Rolls, whatever they are. J Cf. Governor of North Carolina v. Governor of South Carolina. 6 Qmcre why not. — Ed. 7 J. Wirth on Schooners 29. • You mean authenticipatority and then you're wrong. — Ed.