Page:The Green Bag (1889–1914), Volume 17.pdf/495

 THE GREEN BAG epithets as "violent," "savage," " abandoned to imaginative follies," " entirely without taste, order.or measure," to describe Carlyle's attitude toward a subject which excited his disfavor. He had a truly Gargantuan appetite for invective; and was all the more perfervid when his outbursts were unde served. Restraint was an unknown quan tity with him; and moderation he derided as the counsel of fools. He found in the writing of history his most abiding fame; and yet his histories live not because thi/ are histories but because they are poems! And yet let us not be rash in our judg ment of Carlyle, he was neither an extremely bad historian nor an exceedingly great poet. But if our essay on the mischief of ex tremes is to keep itself, sans reprochc in respect of such mischief it behooves us to remember that our observations are prim arily addressed to lawyers, that life is short, and that it is high time for us to remove our theme to a more technical environment and "make an end on "t." The poet Terence (Heaut. 4, 5, 48) tells us that "Extreme right is often extreme wrong;" and Cicero (de Off. i, 10, 33) refers to the maxim Summum jus summa iiijuria as a "trite and proverbial expression.'' The philosophy of the Roman law concern ing the matter is expressed in this wise (D. 17, i, 29, 4): " Non congruit de apicibus juris disputari" — it is not becoming to debate legal subtleties. Lord Hobart enunciated the same idea when he said in Sheffield v. Ratdiffe (Hob. 343) : "Aucupia verborum sunt judice indigna — catching at words is unworthy of a judge.'1 And Lord Hobart's view is as robustly true to-day as it was when it was uttered, notwithstanding Chief Baron Pollock's vaunt that "Judges are philologists of the highest order" (Exports Davis, 5 W. R. 5 23) . Fancy, boasting of skill in <£iAoAoyia — which originally meant " love of talk " and now signifies in English what the Germans understand by Sprachenkunde —as a feature of the judicial quality! And if it were, what a dead waste of logomachy

the business of our courts long ago would have become! Apologies may be due to the memory of the distinguished Chief Baron for venturing to suggest that his hyperbolism must be interpreted to mean that the judges, as a whole, are fair grammarians; but we will risk displeasing the shade of so polished a gentleman, and so good a scholar, as Pollock was. The observation we have quoted, however, is not the only instance we have of his exploiting the vice of ex tremes. Sergeant Ballantine tells us that he had an inordinate admiration for his handsome legs encased in the judicial smalls and silken hose; and we cannot condone his hypercriticism of one of the old law report ers: "Espinasse! Oh, yes, he was that deaf old reporter, was he not, who heard one half of a case and reported the other half? " True, Espinasse hasn't the best reputation in the world for reportorial accuracy, but before he could merit the extreme terms of this con demnation he must needs descend into the nethermost abyss of fatuous uselessness. It is reassuring to meet with the declar ation that "common sense still lingers in Westminster Hall;" but that was uttered by a judge over fifty years ago in rebuking an advocate who was urging an apex juris upon the consideration of the court. (Crosse v. Seaman, u C. B. at p. 525.) It was only a dictum, moreover, and, peradventure, one to be lightly regarded by the Bench of our own times. Lord Mansfield thought that the courts ought always to lean against niceties in matters of variance between the parties to a suit (Rann v. Green, 2 Camp. 476); and Wilmot, J once said: "If once we go upon niceties of construction, we shall not know where to stop. For one nicety is made a foundation for another, and that other for a third; and so on, without end. (R. v''. Inhabitants of Caverswall, Burr. Settl. Cas. at p. 465.) Lord Kenyon threw the weight of his great authority against the tendency of his time to cramp and confine the law by a