Legal Recreations. 
 
 Humorous Phases 
 
 OF THE Law. 
 
 IR.VING BbS^WNE
 
 LEGAL RECREATIONS. 
 
 VOL. I 
 
 Suir\ofou^ f^l^k^e^ of tl\e I<kw.
 
 Humorous Phases 
 
 THE LAW. 
 
 IRVING BROWNE. 
 
 SAN FRANCISCO : 
 
 Sumner Whitney & Co.
 
 PREFACE 
 
 The papers embraced in the following pages were 
 originally published in the Albany Law Jour- 
 nal. The writer has been led to collect and pub- 
 lish them in the present form, not "at the solicita- 
 tion of many friends and against his better judg- 
 ment" — which is the usual form of expression in 
 such cases — but in the hope that they may enliven 
 a leisure hour of his brethren engi'ossed in a dry 
 profession, and possibly amuse a few outside of the 
 ranks of the law. For the benefit of the latter, he 
 has added a few explanatory notes. 
 
 The cases cited in the following pages are all 
 real, and the writer has not intentionally exagger- 
 ated or misrepresented any of them. In a great 
 majority of instances he has consulted the original 
 reports, and has not depended on second-hand cita- 
 tions. If any thing humorous shall be discovered 
 in them, therefore, the reader may rely that the 
 author has not made fun of the law, but has only 
 allowed the law to make fun of itself. 
 
 The writer submits these papers to the public, 
 hoping that his readers may find as much amuse- 
 ment in the perusal as he has found in the re- 
 searches necessary to the preparation. 
 
 Troy,N. Y., Septemler, 1875. I. B.
 
 THE CONDUCT OF COURTS. 
 
 It is popularly supposed that the study and 
 pursuit of the law are unattractive. It is true that 
 the court-room is not a prepossessing apartment. 
 To those unfortunates of our race who seem to have 
 an innate bias toward depravity, its interior must 
 be quite forbidding. It is somewhat awful, even 
 to those unaccustomed litigants who approach it in 
 a harmless way, to contest civil rights. It is pecu- 
 liarly a bugbear to nervous women. To some sickly 
 ladies the height of human infelicity seems to be an 
 imaginary liability to be dragged to the witness 
 stand. They know they never could live through 
 it. We often wonder that their husbands do not 
 contrive to have them subpoenaed, for the sake of 
 the experiment. 
 
 But on more familiar acquaintance, these horrors 
 wear away. The associations of the court-room are 
 apt to degenerate into dullness, and its visitants are 
 more prone to gape than to tremble; and yet, to 
 one who is an habitual frequenter of its precincts, 
 its lessons are not unmixed with the humorous. 
 On entering its venerable portals, how quiet and 
 drowsy is the aspect of every thing ! The hall is 
 shrouded in a dim, irreligious light ; the sun, that 
 usually unblushing orb, seems diffident about look-
 
 2 THE COXDUCT OF COURTS. 
 
 ing in upon this mysterious realm of green baizo 
 and red tape. Long rows of corpulent books, 
 almost buried in dust, suggest forgotten researches 
 of scholars and jurists. The flies on the windows 
 are of the fattest and laziest kind — regular chan- 
 cery suitors ; while the spiders that conceal their 
 webs in the recesses of the dome, are marvellously 
 agile and sharp — complete solicitors in their way. 
 The sheriif's mastitf, sleeping at the door of the 
 prisoners' box, has an extraordinarily severe and un- 
 fathomable countenance, the opposite of that of his 
 master, who is, in most instances, a good-natured 
 man. Half a dozen superannuated persons, bear- 
 ing long and unwieldy jDoles, flit in a noiseless 
 manner about the room, rendering themselves 
 generally useless and in the way. There is a bald 
 fat man, with spectacles, upon the bench, whose 
 chief occupation seems to be to discomfit one or the 
 other of two thin bald men, with spectacles, at the 
 bar. Directly under the judge's bench sits the 
 clerk, whose principal duties, or rather pleasures, 
 are to make fees, and to construct good citizens out 
 of all sorts of foreign materials in the rough. Close 
 at his elbow, at this moment, sits a prisoner, who, 
 with a broad grin on his face, is laboriously sign- 
 ing his name to a certain paper writing ; well may 
 he smile, for it is " his own recognizance " for bail 
 that he is subscribing, and he is doubtless thinking 
 what a " muff " the judge must be to let him oif on 
 such easy security. The aged crier, who looks as if 
 he might have come over in the " Mayflower," rises 
 and drones forth his mechanical " oyez," in the 
 same whine that has characterized it ever since the
 
 THE COXDUCT OF COURTS. 6 
 
 blessings of legal forms dawned n2)on our perishing 
 race. The lawyers, who really act among them- 
 selves as if they are a good set of fellows, and seem 
 unreasonably happy and jovial for persons having 
 so much on their consciences, are talking and laugh- 
 ing, in no wise dismayed by the caution of the 
 crier's formula. They evidently feel under no more 
 restraint than the disrespectful son, whose father 
 excused his sauciness, on the ground that they were 
 so well acquainted that they said almost any thing 
 they pleased to each other. " Silence in court ! " 
 says his honor, rapping the bench with the knife 
 with which he has been peeling an apple while he 
 read the morning newspaper ; at the same time 
 looking severely in every direction, except that 
 from which the disturbance evidently comes. At 
 this signal, the superannuated persons, bearing 
 poles, agitate themselves out of their somnolency, 
 making great pretense of activity in suppressing an 
 imaginary tumult, and shortly go to roost on 
 their poles again. All this time the hum of the 
 great noisy world outside acts like a soporific on 
 the senses. 
 
 "Call the grand jury," says the judge. After 
 they are called, and sw^orn to keep all sorts of 
 secrets, " including their own and their fellows," 
 (and here seems to be a reason why women, in any 
 millenium of female sovereignty, can never act as 
 grand jurors), his honor appoints the most corpu- 
 lent and inactive one as foreman. Then, after a 
 caution from the old crier to the bystanders to 
 "keep silence on pain of fine and imprisonment" 
 (which seems quite unnecessary, because at this
 
 4 THE CONDUCT OF COURTS. 
 
 juncture the spectators are always in breathless 
 suspense to learn if it is possible for the judge to 
 say any thing new), his honor rises, and the jury 
 also rise, with unmixed awe and respect imprinted 
 on their countenances, and his honor proceeds' to 
 charge them, "with horse, foot and dragoons." 
 It is customary to observe in opening, that altliough 
 they may properly be supposed to be somewhat 
 familiar with their duties (which is not improbable, 
 considering that the public are thus made ac- 
 quainted with them three or four times a year), yet 
 it is required of him to make a few general remarks. 
 He then proceeds, at an hour's length, to inform 
 them that they are the conservators of the public 
 peace and the safeguard of society; that they are 
 selected from the most intelligent and respectable 
 portion of the community to protect their persons 
 and property from the hand of the violent, and to 
 point out the offender to public justice. He then 
 overwhelms them with a sense of their tremendous 
 responsibility, and the solemnity of their position. 
 He then impresses on them the novel theory that 
 no man is so high as to be above, nor so low as to be 
 beneath, the reach of the law. He then opens up 
 to them the terrible consequences which would 
 ensue if they should fail to preserve strict secrecy 
 as to their deliberations and proceedings, and gives 
 them a timely caution to be impartial and unpre- 
 judiced. He then usually reminds them that their 
 whole duty is pointed out in their oath, which he 
 proceeds to analyze, making each component part 
 the text for a short discourse of say fifteen min- 
 utes; but this, as it is merely a repetition of what
 
 THE CONDUCT OF COURTS. 5 
 
 he has ah-eady said, it is unnecessary for us to go 
 through. He then reminds them of the necessity 
 of being utterly devoid of partiality and prejudice. 
 Next he calls their attention to several offenses 
 which our legislature have deemed so much more 
 heinous than all others, as to be worthy of specific 
 reprobation, such as vending intoxicating beverages 
 to drunken men, without having paid the State for 
 the privilege; lending money at the rate of interest 
 which the parties think it worth, when it happens 
 to exceed what the State thinks it worth; taking 
 money from a candidate for voting for him when 
 the purchased party would have voted for him in 
 any event, and so forth. These injunctions are 
 undoubtedly most excellent in a moral view, but 
 are never known to produce the slightest practical 
 effect. He then again exhorts them to divest their 
 minds of every thing like partiality or prejudice. 
 And finally he winds up, in a comprehensive, well- 
 rounded and elaborate sentence (usually written 
 beforehand), designed to comprise all that he has 
 said before (with an additional remark about the 
 impropriety of partiality and prejudice), and thus 
 impress it on their minds ; and with a bland and 
 soothing reminder of the reliance that the com- 
 munity place upon their unimpeachable and unques- 
 tioned and unvarying integrity, intelligence and 
 impartiality, he dismisses them to their secret 
 chamber, under the guidance of one of the paralyt- 
 ics, who descends from his roost for the purpose. 
 The reporters for the press are very busy all this 
 time, and next day the newspapers, with remark- 
 able unanimity, compliment his honor on his able,
 
 6 THE CONDUCT OF COURTS. 
 
 learned and eloquent " charge to the grand jury." It 
 has been frequently noticed that the said reporters, at 
 or about the same time, are to be seen emerging in 
 a body from some temple of Bacchus conveniently 
 near the temple of justice, with a satisfied expres- 
 sion of countenance; and it has been likewise 
 noticed that the grand jury are entirely oblivious 
 to the fact that the priest of the first-mentioned 
 temple is without orders or license, notwithstand- 
 ing its propinquity to the last-mentioned temple. 
 
 Next, the clerk calls the petit jury, and the judge, 
 if fresh in office, or not looking for a re-election, 
 imposes fines on those delinquents who fail to appear 
 and ansAver ; but such fines are more for show than 
 service, and are remitted on very trivial grounds. 
 His honor then announces that he will hear excuses 
 from jurymen, who desire to be relieved from the 
 necessity of attendance. These excuses are as vari- 
 ous as those of the guests summoned to the feast, in 
 the parable, and comprehend every ailing and disa- 
 bility known to medicine, from bronchitis to bowel 
 complaint, from piles to paralysis, from corns to 
 consumption. Deafness is a standing excuse for 
 not sitting, and where satisfactorily established, 
 is allowed to prevail. A doubtful instance once 
 arose in northern New York, where the juror alleg- 
 ing that he could hear only with great difficulty, 
 the judge asked him if he did not hear his charge to 
 the grand jury, just delivered? " Why, yes," was 
 his reply, " I heard it, but I couldn't make head or 
 tail of it ! " 
 
 If any cause is ready for trial, the clerk calls a 
 jury especially for the puri)ose. Perhaps tliere are
 
 THE CONDUCT OF COURTS. 7 
 
 not names enough in the box. "Summon tales- 
 men," says the judge. At this announcement there 
 is an evident fluttering among the spectators, and if 
 the cause is understood as likely to be tedious or 
 protracted, as many of them escape by incontinent 
 flight as can, while tlie sheriff singles out those who 
 voted against liim, or those against wliom for any 
 other reason lie holds a grudge. 
 
 After the exercise of a good deal of professional 
 finesse, a jury is secured, and the plaintiff's counsel 
 opens the case. This is an admirable opportunity 
 for the exercise of the imaginative faculties, for the 
 jury, if the case is strikingly and glowingly pre- 
 sented, are apt to have a corresponding idea of it 
 fixed in tlieir minds, and no matter how much the 
 testimony may fail to support it, an immense pre- 
 ponderance of opposing evidence is requisite to 
 efface the impression. 
 
 Witnesses are then examined. Their oath is to 
 tell the truth and nothing but the truth ; but this 
 means in answer to the questions of counsel and 
 nothing beyond. And so if the Avitness is disposed 
 to tell a little truth on his own account, he is 
 checked, and his testimony is termed "irrespon- 
 sive." Everybody is, of course, aware of tlie tor- 
 tures inflicted on witnesses. The popular belief 
 that no man, however truthful and intelligent, can 
 preserve his consistency under the fire of cross- 
 examination, is so firmly fixed that no efforts on the 
 part of the profession can remove it. The prevail- 
 ing difficulty IS that no witness is content with 
 simply answering a question, and indeed very few 
 can answer the simplest question at all. Suppose
 
 8 THE COXDUCT OF COURTS. 
 
 the witness is narrating a conversation, and says 
 that in the course of it defendant called plaintiff a 
 fool, a scamp, and a thief. "Will you swear," says 
 Counselor Sharp, "that he used the word thief ?" 
 And the answer will be "I think he did," "I am 
 quite sure he did," or "I am positive he did ;" or 
 any thing else but yes or no, the only possible an- 
 swer to the question. The witness is willing enough 
 and honest enough, but not reflective enough ; or 
 he is obstinate, and although he sees the point, is 
 unwilling to admit that he cannot swear positively 
 to the circumstance, because he has no doubt of it. 
 So, after a while, under the skillful badgering of 
 counsel, he becomes mad and almost desperate, 
 affirms every thing his counsel asks him, negatives 
 every thing else, and thus, rushing like a bull at a 
 gate, beats out his brains against the stubborn sub- 
 tleties of the law, and then out of court whines 
 about the unfairness of counsel. Counsel are un- 
 doubtedly frequently unfair in the examination of 
 witnesses, but their unfairness generally consists in 
 taking advantage of the proneness of human nature 
 to be unfair, or its inability to be candid. One 
 would suppose that lawyers would themselves prove 
 good witnesses, but the contrary is the fact ; indeed 
 there is but one class of witnesses less endurable, 
 and that is physicians, who cannot divest them- 
 selves of the habit of lecturing and the use of tech- 
 nical language. 
 
 After the evidence is all in on one side, the 
 opposing party proceeds to contradict, explain, 
 modify, or discredit, and after he has had his 
 "innings," the plaintiff goes at it again, and so on
 
 THE CONDUCT OF COURTS. 9 
 
 until the case Avill admit of uo further contradic- 
 tion, explanation, modification, or discrediting, and 
 then the jury are ready to be argued at. The 
 defendant's counsel presents one view and then the 
 plaintiff's counsel presents another entirely different, 
 each invariably assuring the twelve that in the 
 course of his professional practice he has never met 
 with so clear a case for his client, and imploring 
 them so to decide that they can lay their heads on 
 their virtuous pillows at night with the jDroud con- 
 sciousness of having rightly discharged their duties. 
 And here let us observe, that the compliments of 
 his honor to the grand jury are nothing to the flat- 
 tery and eulogy which the counsel pour upon the 
 heads of the petit jury. If a man wants to find out 
 what a surprisingly clever and estimable fellow he 
 is, ]et him get himself impaneled. But as there is 
 no rose without its thorn, so the jury are not exclu- 
 sively treated to these sweets. The denunciations 
 which the counsel respectively avow themselves 
 ready to heap on their heads, supposing them so 
 lost to honor and rectitude as to decide against 
 their client, are almost as fearful to contemplate as 
 the curse of the Catholic church upon backsliders and 
 heretics, and it is to avoid thi-s awful contingency, 
 perhaps, that juries so frequently disagree. This is 
 the way in which these things strike a layman, but 
 we suppose that among the profession they are all 
 received in a Pickwickian sense. After the jury 
 have been thoroughly kneaded in this way, the 
 judge flattens them out with his rolling-pin of law, 
 and stamps them with almost any tin jjattern he 
 pleases, in the shape of a charge. The counsel then 
 2
 
 10 THE CONDUCT OF COURTS. 
 
 have a sharp encounter with his honor, to entrap 
 him in some erroneous charge or a refusal to make 
 some proper one, and thus, obtain an exception on 
 which to found a successful appeal. The jury then 
 retire in charge of one of the paralytics and a pole, 
 and are kept in strict seclusion on a light diet of 
 water, until they agree, or until in case of disagree- 
 ment the Judge chooses to release them. The pro- 
 priety of starving a Jury into a verdict is one of the 
 good Jokes connected with the law, which it would 
 take me too long to explain. The English of old 
 times, having a much keener sense of humor than 
 ourselves, used to cart the Jury around, following 
 the Judge on his circuit, until they should agree ; 
 and it is even said that some intensely witty and 
 pleasant fellows, like Scroggs and Jeffries, when the 
 wretched creatures proved unyielding, would some- 
 times get rid of them by dumping them into some 
 convenient ditch. It. is true that now-a-days the 
 counsel usually consent that the Jury may be fed, 
 but the theory of the law is now. Just as it was under 
 the aforesaid humorous judges, that they are kept 
 ''without meat or drink, water excepted." 
 
 And this is the ordinary course of a trial at law. 
 In all these proceedings, that which strikes the 
 spectator most forcibly is the prevalence of forms. 
 Some of these forms are as old as the common law 
 itself, and as little varied by lapse of time as the 
 street cries of London. These seem singular, but 
 are necessary. Legal affairs must be transacted in 
 some settled and unvarying method. The error is 
 in not accommodating these forms to the growing 
 intelligence and civilization of the age, and in pre-
 
 THE CONDUCT OF COURTS. 11 
 
 serving in the nineteenth century the quaint prac- 
 tices of the sixteenth. For instance, it would be 
 diflBcult to assign any good reason for the practice of 
 starving a jury into agreement, and as the practice 
 has fallen into disuse, why should we preserve the 
 theory ? 
 
 Another striking feature of trials at law is the 
 apparent equality of the contest. An unsophisti- 
 cated observer would suppose, that as one side must 
 be right and the other must be wrong, it would 
 clearly and speedily appear which is right and 
 which is wrong. But two skillful lawyers are like 
 two experts at any game of skill or endurance, and 
 the result is, that the clearest case becomes at least 
 somewhat doubtful, and the event quite problemati- 
 cal. The arguments on both sides seem irrefrag- 
 able as they are separately presented. The advocates 
 elude one another's grasp like weasels. They are 
 lubricated all over with the oil of sophistry and 
 rhetoric. It is quite as difficult to put forward a 
 suggestion that is not plausibly answered, as it is 
 to make a run at base ball, or a count at billiards 
 after a skillful player has left the balls in a safe 
 position. 
 
 Another conclusion forced on the mind by observ- 
 ing the proceedings of courts is, that advocacy is 
 much more easy than impartiality ; that it is almost 
 impossible for man to divest himself of prejudice 
 and to overcome the force of habit and education. 
 There is only one judge who is impartial, and even 
 he has strong leanings against the wicked. So in 
 almost every case we hear the judge discussing the 
 facts, and arguing on probabilities and credibilities.
 
 12 THE CONDUCT OF COURTS. 
 
 and ill the same breath, instructing the jury that 
 these questions are their jDeculiar province and 
 entirely outside his own. Human nature is alike 
 all over the world, in all times, in all stations. 
 Man is a disputatious animal, and logically dies 
 hard. Adam must needs dispute with the arch- 
 angel. Therefore we must not blame our judges 
 for taking sides. The Irishman's hands itch for a 
 ''shillalah" when he sees a "free fight" going on 
 between a few of his friends, not so much for love 
 of either party as to gratify an innate pugnacity, 
 and if his own skull is cracked in the encounter he 
 bears no malice. So the judge, when he sees so 
 much fine logic flying about the heads of the jury, 
 yearns himseK to have an intellectual whack at 
 them, and sometimes in his ardor his reasoning 
 recoils, like the eastern boomerang, upon his own 
 reverend head. 
 
 But finally, the most remarkable sensation that 
 courts of justice are subject to, is experienced at 
 the sight of a pretty woman. Let a comely and 
 well-dressed woman enter the court-room, and at 
 the first rustle of her silken gown, every man 
 present seems to lose his head. Talk of the equality 
 of the sexes ! A man stands no more chance in a 
 lawsuit against a good-looking woman, esiaectally if 
 she is in weeds, than he does of being saved with- 
 out repentance, or of being elected to congress 
 without spending money. Portia would have been 
 even more potent in petticoats. The lawyer who 
 should undertake to cross-examine a woman sharply 
 would be considered a brute. Even to ask her age 
 is a hazardous experiment. When she testifies to
 
 THE CONDUCT OF COURTS. 13 
 
 hearsay, or what she said herself, or what she 
 thought or thinks, or any thing else improper, the 
 judge merely lays down his pen and smiles, and the 
 jury believe every word of it. And whether party 
 or witness, let her take out a black-bordered white 
 handkerchief, and put it to her eyes, or nose — it 
 makes no difference which — and the jury will treat 
 her antagonist with about as much consideration as 
 the early Christian martyrs received from the wild 
 beasts at Ephesus. A man may be put off with 
 sixpence ; a woman's verdict always carries costs. 
 Even the gallows has no terrors for her ; its noose 
 relaxes and refuses to clasp her fair neck ; it is only 
 when it embraces Adam's apple that it preserves its 
 hold. And yet the women are trying to break this 
 spell by becoming lawyers and jurymen ! It would 
 not surprise me if they should succeed in getting 
 hanged, if they accomplish this purpose. The 
 charm of their unaccustomed and artless presence 
 will be gone, and if they demand the privilege of 
 acting like men, they will perhaps be treated like 
 men.
 
 14 THE LAW OF SUNDAY. 
 
 THE LAW OP SUNDAY. 
 
 Sunday is not a court day — dies Dominicus non 
 est juridicus.* Service of process, arrest in civil 
 actions, and all that sort of thing, are prohibited 
 on that day, universally. In this respect, however, 
 it is not much more sacred than election day. No 
 trial can be held on Sunday. The only trials which 
 the lawyer can then lawfully be subjected to are 
 those which he undergoes in listening to the clergy, 
 who make him a frequent subject of reproach. 
 The only court permissible on that day is such as 
 lovers, according to immemorial custom, pay to the 
 objects of their adoration. Sunday was not always 
 held thus sacred from the demands of Themis. It 
 did not become so until the year 517. Originally 
 the Christian courts were open on Sunday to pre- 
 vent resort to the heathen courts. But, with these 
 exceptions, all business transactions are valid at 
 common law, " however wrong or unbecoming in 
 morals they may be considered." f It is not pro- 
 posed in this paper to examine the law of Sunday 
 with much minuteness, or with any regard to the 
 modifications of the common law wrought by the 
 numerous statutes of the various States of our 
 Union. 
 
 Washington, in his diary, under date of Novem- 
 ber 8, 1789, in journeying through Connecticut, 
 
 * Stoiy V. Elliott. 8 Cowen. 27. + Merritt v. Earle, 31 Barb. 41.
 
 THE LAW OF SUXDAY. 15 
 
 remarks, ''It being contrary to law and disagree- 
 able to the people of this State to travel on the 
 Sabbath day, and my horses, after passing through 
 such intolerable roads, wanting rest, I stayed at 
 Perkins' tavern (which, by the by, is not a good 
 one) all day; and a meeting-house being within a 
 feio rods of the door, I attended morning and even- 
 ing service, and heard very lame discourses from a 
 Mr. Pond." (Pond's sermons had probably tra- 
 versed the same roads. ) Connecticut has improved 
 her inns and the intellectual character of her 
 preaching, and has mended her ways, but has not 
 altered the particular law spoken of. At least, 
 Sunday traveling and work are still prohibited, 
 except in cases of necessity and mercy. The run- 
 ning of the Sound steamboats seems to be considered 
 necessary or merciful, however, and as an incident, 
 it was held by a New York court, that the fact 
 that the plaintifE left the boat on Sunday made no 
 difference, under the Connecticut Sunday law, as 
 to her right to call for her trunk.* If delivering it 
 would have been work or labor, within the statute, 
 it was a work of necessity. And so, where she 
 neglected to call for her trunk for seventeen hours, 
 and it was put in the steamboat company's ware- 
 house, where it was burned, it was held that she 
 could not hold them as common carriers. As to 
 the Sunday work, she and they were in the same 
 boat. 
 
 In Massachusetts it is not only unlawful to travel 
 on Sunday, except from necessity or charity, but a 
 
 * Jones V. Norwich and N. Y. T. Co.. 50 Barb. 193.
 
 16 THE LAW OF SUNDAY. 
 
 fine of $10 may be inflicted for every violation. 
 There is certainly no fun in that, but there is in 
 some of the decisions on the subject. A person 
 cannot legally travel on the Lord's day for the pur- 
 pose of supplying fresh meat to marketmen, whom 
 his master has agreed to supply, although he could 
 not do this, in addition to his other work, on Mon- 
 day morning, and his master was too sick to do it 
 himself; and consequently, if while so traveling 
 he sustain an injury on account of a defective high- 
 way, he cannot recover damages therefor.* The 
 plaintiff offered to prove, among other things, that 
 he was his master's only servant, and at that season 
 fresh meat was only fit for use on Monday when 
 slaughtered and dressed on Sunday. But the judge 
 said, that "it was too clear to admit of discussion," 
 and so this wicked servant had to bear his smarts 
 unrecompensed. The judge undoubtedly was not 
 one of the persons who suffered from the "tempo- 
 rary inconvenience caused by the failure to supply 
 provisions on Monday." If he had been, he might 
 have undergone a state of mind which even the 
 recollection of the previous day's exercises could 
 not have soothed. But, as it was, the court held 
 that the servant received a meet punishment for 
 his transgression, and thus the sound morality 
 taught at the famous theological seminary at 
 Andover, and recognized by the Massachusetts 
 statutes, saved that town from a bill of damages. 
 Truly, virtue is its own reward. But this is not 
 the only case showing the prudence with which 
 
 * .Tones V. Inhabitants of Andover, 10 Allen. IH
 
 THE LAW OF SUNDAY. 17 
 
 Massachusetts reconciles a due observance of Sun- 
 day with the inviolability of the public purse. It 
 is a work of necessity for the public to repair the 
 highway on Sunday in order to prevent accidents 
 on Monday.* So held in an action for damages 
 occurring on Monday, through a defect in the high- 
 way, the defendant setting up as a defense that it 
 would have been unlawful to repair the road on 
 Sunday. The court wisely held that no day was 
 fitter than Sunday for a community to mend its 
 ways. 
 
 To visit one's father on Sunday is a work of 
 necessity or charity; so held in Pennsylvania, in 
 the case of the hire of a horse and wagon.f But in 
 Massachusetts it was left undecided whether a 
 young man who worked at a distance during the 
 week, and received injuries arising from a defect 
 in the highway, while proceeding to visit his 
 betrothed on Sunday, was a lawful traveler. J This 
 is a case calculated to arouse the indignation of 
 every well-regulated young woman in the land. Is 
 a mere father to be preferred to a contingent wife 
 and mother? It might, in the long run, be a work 
 of mercy to the young woman if the young man 
 would let her alone, or confine his attentions to 
 epistolary communications, thus giving her an 
 opportunity to take her natural rest and sleep, and 
 reflect on the lessons of the day. But such "odor- 
 ous comparisons " between fathers and contracted 
 wives are not to be tolerated. 
 
 * Flagg V. Inhabitants of Milbury, 4 Cush. 243. 
 + Logan V. Matthews. 6 Penn. St. 417. 
 tBufflngton v. Swansy, 2 Am. Law Rev. 2.'55. 
 
 3
 
 18 THE LAW OF SUNDAY. 
 
 The New York statute, with a view to restricting 
 inordinate and excessive church-going, has wisely 
 provided that no one shall ride more than twenty 
 miles to church on Sunday. In England they have 
 very liberal ideas as to what constitutes a traveler. 
 A statute provided that no licensed victualer should 
 sell wine or ale on Sunday, except " as refreshment 
 for travelers." (This piits one in mind of the late 
 lamented Artemus Ward, who never indulged in 
 intoxicating drinks, "except as a beverage.") A. 
 walked on Sunday to a spa, two and a half miles 
 from his house, for the purpose of drinking the 
 mineral water there for the sako of his health, and 
 was supplied with ale at a hotel at the spa. He was 
 held to be a traveler within the exception*. This 
 statement leads one to suspect that the attraction 
 at the spa was the hotel and not the mineral water, 
 and that all that ailed the traveler was what he pro- 
 cured at the hotel. And in Massachusetts it was 
 mercifully held, that one who received injuries on 
 Sunday, through a defect in a street in Boston, 
 while walking half a mile to his own house, was not 
 traveling, within the meaning of the Lord's day 
 act.f If the defendants had shown that the plaint- 
 iff had accomjilished half a mile in a straiglit line, 
 the decision must have been different. 
 
 Massachusetts was impartial in its administration 
 of its laws, at all events, for in 1793 the Chief Jus- 
 tice of the State and his associates were indicted for 
 traveling on Sunday, and were compelled to peti- 
 tion the legislature to authorize a nolle prosequi. 
 
 * Peplow r. Richardson, 4 C. P. 168. 
 
 t Hamilton v. City of Boston, 3 Am. Law Rev. 2.36.
 
 THE LAW OF SUISTDA-Y. IS 
 
 Although one carrying the mails on Sunday could 
 not be arrested, yet his passengers might be. This 
 is hardly consistent with Scripture: " Offenses must 
 needs come, but woe to him by whom the offense 
 Cometh." 
 
 It is a misdemeanor in Massachusetts to perform 
 any labor on Sunday, except work of necessity or 
 charity. The principle of the maxim, 7ie sutor ultra 
 crepidam, was enforced in a recent case in that pre- 
 cise commonwealth,* in which the defendant, a shoe- 
 maker, was indicted for hoeing in his garden on the 
 Lord's day. The only witness for the government — 
 an early riser, it seems — testified, that about eight 
 o'clock in the morning of Sunday, he saw this dan- 
 gerous shoemaker hoeing for about an hour in the 
 garden near his house. The defendant testified, 
 that for two days next preceding the day in ques- 
 tion, he had not worked at his trade, but had given 
 the greater part of his time to cultivating his crops 
 at home, and had been engaged in that labor by 
 moonlight on Saturday evening ; that when he left 
 off work on that evening, "a few hills remained 
 unfinished, and in very bad condition, and suffer- 
 ing for want of hoeing ; " and these, we infer, he 
 finished on the next morning, contrary to the form 
 of the statute in that case made and provided, and 
 being thereunto moved and instigated by the wiles 
 of the devil. It did not apj^ear whether or not he 
 went to church after it. Probably not ; how could 
 he with such a weight of wickedness on his soul? 
 He asked the court to submit the question of the 
 
 * Commonwealth v. Josselvn, 97 Mass. 411,
 
 20 THE LAW OF SUNDAY. 
 
 moral propriety and fitness of the work to the jury, 
 but this was refused ; he was convicted, the court 
 on appeal overruled his exceptions, and, for aught 
 we know, he is pegging shoes for the benefit of the 
 righteous old Bay State, while ill weeds disfigure his 
 garden-patch, and his temporary widow and his 
 little ones "go bare," like the little colt in the nur- 
 sery rhyme. It is to be hoped, if this wretched 
 shoemaker ever emerges from durance, that he will 
 reform and try to become a worthy member of soci- 
 ety, but we have great fear and little hope of him. 
 The domestic tragedy thus inadequately set forth is 
 cordially recommended to the dramatist of the 
 American Tract Society, who cannot fail to turn it 
 to good use, by making it the subject of a glowing 
 diatribe suited to the meridian of Massachusetts. 
 The same volume of reports also contains an account 
 of another dreadful infraction of human and divine 
 law, which is worthy of our consideration.* The 
 defendants, who were farmers, had a license, for 
 which they made an annual payment, from the 
 owner of a beach, about four miles from their resi- 
 dence, to gather sea-weed thereon, which is valua- 
 ble and in common use for manure. A storm on 
 Saturday having thrown up a large quantity of sea- 
 weed, the defendants, about ten o'clock on Sunday 
 evening, gathered it from the space between high 
 and low-water mark, and drew it higher up the 
 beach, the tide being low, and a strong wind blow- 
 ing in a direction which had frequently caused the 
 ^ea-weed to float away and be lost. Under the 
 
 * Commonwealth v. Sampson, 97 Mass. 407.
 
 THE LAW OF SUNDAY. 21 
 
 instructions of the court the jury found the defend- 
 ants guilty, and their exceptions were overruled. 
 The things which may lawfully be done on Sunday 
 were enumerated in the opinion of the court : ** To 
 save life, or prevent or relieve suffering, and this in 
 the case of animals as well as men ; to prepare 
 needful food for man and beast ; to save property, 
 as in the case of fire, flood or tempest, or other un- 
 usual peril, would unquestionably be acts which fall 
 within the exceiDtions. But it is no sufficient ex- 
 cuse for work on the Lord's day, that it is more 
 convenient or profitable if then done than it would 
 be to defer or omit it." (Now, is it any worse to 
 acquire property on Sunday than to save it on that 
 day? — ^property which can be acquired only on that 
 day? Tlie judge answers this question in his next 
 sentence. ) '' If a vessel had been wrecked upon the 
 beach, it would have been lawful to work on Sun- 
 day for the preservation of property lohich might he 
 lost ~by delay. But if the fish in the bay or the 
 birds on the shore happened to be uncommonly 
 abundant on the Lord's day, it is equally clear that 
 it would furnish no excuse for fishing or shooting 
 on that day. How it would he if a whale hapjjened 
 to he stranded on the shore, we need not determine." 
 (In answer, probably, to an illustration of counsel.) 
 ''Whether a case wholly exceptional, and involving 
 a large amount of accessible value, would require 
 any modification of the rule is not now in ques- 
 tion." He then goes on to say that the deposits of 
 sea-weed are frequent; that in this case the property 
 had not been reduced to possession, and afterward 
 put to hazard ; that equally good opportunities of
 
 2.2 THE LAW OF SUNDAY. 
 
 gathering it would recur, and that the gathering of 
 it is an ordinary branch of agricultural labor. The 
 case does not disclose how- the witnesses for the com- 
 monwealth happened in a position to have their 
 quiet and peace of mind disturbed by the riotous 
 and unholy conduct of the defendants on that 
 beach, "a considerable distance from any house 
 or public road," at ten o'clock at night. If the 
 lateness of the hour were not inconsistent with such 
 a theory, we might imagine that they availed them- 
 selves of a spy-glass, as did those old maids who 
 complained of a man who went a-swimmiug half a 
 mile from their house. And how the naughty 
 judge should tolerate, even in imagination, an ex- 
 ception in favor of that "whale," with the example 
 of Jonah before his mind, we cannot imagine. And 
 suppose a whale should come along on Sunday ; non 
 constat that another would not come on Monday, 
 and a whole school during the week. But his 
 honor's mind was evidently affected by the idea that 
 a whale on the beach is worth two in the sea, and 
 that " a large amount of accessible value" is not to 
 be passed by, even on Sunday. The idea is not a 
 new one, but has long prevailed in the coast towns 
 of Cape Cod. A clergyman was once holding forth 
 to his congregation on Sunday morning — on the 
 vanity of human riches, perhaps — when a man 
 rushed in with the alarm, "Skewner ashore!" 
 The audience arose en masse, and made a stampede 
 for the doors, but were arrested by the voice of 
 their shepherd, who exclaimed in stentorian tones, 
 *' Brethren, before you leave, I've one last word to
 
 THE LAW OF SUNDAY. 23 
 
 give ye," at the same time descending the pulpit 
 stairs, and walking deliberately down the aisle, 
 " and that is," continued he, as he joined the crowd 
 at the door, ^' let's all start fair !" and off he went 
 like arrow from bow, and was the first man on 
 the scene of '' accessible value." Let that judge 
 pray that no whale, or other leviathan freighted 
 with ''accessible value," may come ashore on Sun- 
 day near where he is holding court. It is to be 
 feared that such an event would degrade the scales 
 of justice into an instrument for weighing blubber 
 and bone, in his imagination. After reading these 
 last two cases, no man will disagree with the editor 
 of the American Laiu Review, who, remarking on 
 them, says: "It is difiicult to restrain a move- 
 ment of indignation that a law under which such 
 prosecutions are possible still stands on the statute 
 book;" nor with Judge Grier, who says : "The 
 Massachusetts decisions upon the Sunday law de- 
 pend upon the peculiar legislation and customs of 
 that State, more than on any general principles 
 of justice or law." * 
 
 But Massachusetts is not always so stern. She 
 kindly admits that a note dated on Sunday, but 
 made and delivered on a secular day, is not infected 
 with wickedness, but is binding, f " Blowing one's 
 own horn " is unlawful on Sunday, in Massachusetts, 
 it seems. X So held in the case of a mail-carrier, pro- 
 vided it is done "to the disturbance of serious peo- 
 
 * Philadelphia v. Towboat Co., 23 How. U. S. 209. 
 
 t Stacy 11. Kemp, 97 Mass. 166. 
 
 t Commonwealth v. Kjiox 6 Mass. 76.
 
 24 THE LA.W OF SUNDAY. 
 
 pie." This presents a vivid idea of the amount of 
 self-denial exercised by the inhabitants of Boston 
 on that day. 
 
 Vermont does not agree with Massachusetts in its 
 treatment of the gifts of nature. Thus in Wliit- 
 co7nh V. Oilman, 35 Vt. 297, it was held that, as a 
 matter of law, it is not always unnecessary to work 
 on Sunday to prevent a great waste of sap in mak- 
 ing maple sugar. A religious man, say the court, 
 should set tubs enough on Saturday ; but if the 
 run is extraordinary — why, verb. sap. 
 
 In Phillips V. Lines, 4 Clark and Finnelly, 234, 
 it was held by the House of Lords, reversing the 
 decision of the magistrates of Dundee, that an ap- 
 prentice to a barber in Scotland, bound by his 
 indentures "not to absent himself from his mas- 
 ter's business, on holiday or week day, late hours or 
 early without leave," was justified in going away on 
 Sundays, without leave, and without shaving his 
 master's customers. The magistrates, however, 
 held that it was not " lawful for him to work in the 
 making of wigs " on Sunday — an artificial distinc- 
 tion. In the argument, the cases of shaving a 
 maniac's head, or that of a man who had sustained 
 a fracture of the skull, were considered exceptional. 
 In Maine, too, a barber was recently arrested for 
 keeping open shop on Sunday. But the newspa- 
 pers inform us that Massachusetts, oblivious of 
 these precedents, and of her own unbroken line of 
 decisions, has recently, in the person of one of her 
 judges, declared that shaving is a work of neces- 
 sity, and that barbers cannot be punished for " pro- 
 fessional" labor at any time.
 
 THE LAW OF SUNDAY. 35 
 
 A contract to publish an advertisement in a Sun- 
 day newspaper is unlawful, and the price cannot be 
 recovered.* It is the exposure to sale and conse- 
 quent disturbance of the quiet of the day, and not 
 the sale itself, which in New York constitutes the 
 illegality of the transaction. The judge remarks 
 beyond this: "Indeed, in any view of religious 
 obligation, it would be difficult to contend that the 
 reading of advertisements in a Sunday newspaper, 
 or aiding a person to do so, is a work of either neces- 
 sity or charity. The mind, certainly, on that day 
 needs no such sustenance. And even as a mere 
 matter of taste, it must be admitted that common 
 business advertisements of mere buying and selling 
 are a very unsuitable outfit for a ' feast of reason. ' 
 Six days, at all events, of such diet are enough. 
 Thought perpetually running in one channel, like 
 matrimony in one family, dwarfs the intellect. It 
 is rather, therefore, a work of charity in such cases 
 to withhold than to give. Abstinence, not susten- 
 ance, is what is needed." 
 
 In New Hampshire only such ordinary labor or 
 business is forbidden as is carried on '' to the dis- 
 turbance of others." A legal definition of tbis term 
 may be found in a case in which a contract for the 
 sale of a horse was made on Sunday, and a note 
 given, at the house of the plaintiff, whose wife was 
 present reading a newspaper, f The court held the 
 note void, the giving of it being, under the circum- 
 stances, a "disturbance of others," although no 
 complaint of the disturbance was made! It is hard 
 
 * Smith V. Wilcox, 19 Barb. 581 ; 24 N. Y. 353. 
 + Vamey v. French, 19 N. H. 233. 
 
 4-
 
 JJ6 THE LAW OF SUNDAY. 
 
 to understand the soundness of this ruling, it not 
 appearing that the wife ''took any note" of what 
 was going on. How could the court deem the wife 
 an " other," when husband and wife are one? Be- 
 sides, how could they hold that the wife was "dis- 
 turbed," unless it appeared that her attention was 
 distracted from her newspaper? So far as the case 
 discloses, the newspaper was not a religious one, 
 which adds to our doubts. Could she lawfully read 
 any other? and if she were engaged in an illegal 
 undertaking, how could she be ' ' disturbed ? " But, 
 perhaps, it is to be presumed that it was a religious 
 paper, and so careful of human rights is the law, 
 that it will not permit one to be disturbed in his 
 presumably lawful occupation, even where he is 
 unconscious of the disturbance. 
 
 A man may make his will on Sunday, anywhere, 
 even in Massachusetts.* In that State the right 
 seems to be put on the ground of its "fitness and 
 morality." In New Hampshire it seems to be suj)- 
 ported by the numerous good words usually placed 
 at the commencement of the document, f the coun- 
 sel in their brief having made " a most interesting 
 collection of the opening words of wills, selected 
 through a period of a hundred years," and arguing 
 therefrom that the act is usually regarded in New 
 England as a religious one. Truly, if we trust to 
 wills and epitaphs, the world has lost none but 
 religious people. Wliat a shock, then, we receive 
 in a Pennsylvania case, which upholds the right 
 mainly on the ground that the will does not take 
 
 * Bennett v. Brooks, 9 Allen, 452. 
 
 + Perkins v. George, 1 Am. Law Rev. 755.
 
 THE LAW OF SUNDAY. 27 
 
 effect uutil the testator's death! * But suppose the 
 testator should afterward die on a Sunday? Would 
 not that render the execution of the will unlaw- 
 ful? 
 
 The author of " Lacon " says : "As no roads are 
 so rough as those which have just been mended, so 
 no sinners are so intolerant as those who have just 
 turned saints." And so we find the following com- 
 paratively recent decision in Arkansas,! which a 
 writer in the Lmu Review characterizes as " one of 
 too great strictness of interpretation." The de- 
 fendant was poor; had no implements to cut his 
 wheat, which was wasting from over-ripeness; and 
 could borrow none until Saturday evening. He 
 exchanged work with his neighbors during the 
 week, hired a negro, and cut his own wheat on 
 Sunday. Held, no justification for breaking the 
 Sabbath. This is quite different from the horse- 
 races, gambling, and duelling which formerly en- 
 livened the Sabbath in that State. 
 
 Theaters have met with very little encouragement 
 at the hands of the judiciary. Thus in New York 
 it is held that the law forbidding the opening of 
 theaters on Sunday does not deprive the citizen of 
 his property, within the meaning of the constitu- 
 tion of that State, J although it is easy to be seen 
 that it may of his " properties ; " and in California 
 they have decided theatricals to be among the 
 "barbarous and noisy amusements " forbidden on 
 Sunday § — a salutary thrust at ranting actors. 
 
 * Beitenman's Appeal, 55 Perm. 183. 
 + State V. Goff, 20 Ark. S89. 
 X LindenmuUer v. People, 33 Barb. 548. 
 § People V. McGuire, 26 Cal. 635.
 
 5iS THE LAW OF SUNDAY. 
 
 In England the disposition of late years has 
 been to construe Sunday law very liberally, and not 
 to presume any thing in favor of those claiming the 
 infraction. A very marked contrast to Varney v. 
 French is Triggs v. Lester (Law Rep. 1 Q. B. 259), 
 in which it was held that driving with horses a van 
 in which calves are being conveyed to market, is 
 not within a statute which forbids any drover, or 
 other person, from "conducting or driving" any 
 cattle or horses through the streets on Sunday. 
 The statute in question is aj)plicable only to ''merry 
 Islington," a great cattle market, and was probably 
 passed to keep that town secure from '' the gambols '" 
 of John Gilpin, " when he next doth ride abroad." 
 
 An article in the London Law Times, on "Sun- 
 day Prosecutions," states that "a society jjrofessing 
 for its object the promotion of the religion of char- 
 ity, liberty nnd love, is busy in the east of London 
 laying informations against crossing-sweepers, news- 
 boys, tobacconists and small tradesmen, for infring- 
 ing an old and almost forgotten statute of Charles 
 II, which imposes upon any person pursuing his 
 calling on Sunday a certain penalty." The magis- 
 trate inflicts a fine of a penny, and refuses costs to 
 the informers, who have gone to tlie Queen's Bench. 
 The Times' writer is indignant at the conduct of 
 the society, but, except in regard to the swee]Ders, 1 
 think they are right. " Wherewithal shall a young 
 man cleanse his ways," if these useful persons are 
 restrained of their brooms on Sunday? But the 
 " calling " of Sunday newsboys is insufferable, and 
 as for the tobacconists, "the smoke of their tor- 
 ment ascendeth up forever and ever."
 
 THE LAW OF NECESSARIES. 29 
 
 THE LAW OF NECESSARIES. 
 
 Every husband is theoretically bound to support 
 his wife; that is, to supply her with necessaries suit- 
 able to her situation, and his own circumstances and 
 condition in life. The same is true as to father and 
 child. And as a corollary, if the husband or father 
 fail to do this, third persons may do it, and the party 
 on whom the duty rests must respond. If the wife live 
 with the husband, an agency to contract for necessa- 
 ries is presumed in her favor; and if without him, his 
 duty still exists. An infant, away from home, may 
 bind himself by his contract for necessaries. But as to 
 what are and what are not necessaries, there has been a 
 great deal of discussion, and the line of distinction is 
 by no means well defined. Lear was made to say: 
 " Our basest beggars 
 Are in the poorest things superfluous : 
 Allow not nature more than nature needs, 
 Man's life is cheap as beasts'." 
 
 And another poet says: 
 
 "Man wants but little here below, 
 Nor wants that little long." 
 
 But the law takes a very different view of man's 
 wants. The maxim of the law on this subject 
 would seem to be: Id necesse est quod necesse reddi 
 potest. In view of the disposition to enlarge the 
 catalogue of necessaries, it may well be said that 
 necessity knows no law, and is the mother of inven- 
 tion. The law has long since outmarched the ffreat
 
 30 THE LAW OF N'ECESSARIES. 
 
 leading case on the subject of necessaries, reported 
 by Defoe, Robinson Crusoe, and the equally authori- 
 tative case of Swiss Family RoMnson, and the 
 scripture maxim seems to be the rule: " To him 
 that hath shall be given, but from him that hath 
 not shall be taken away even that which he hath." 
 
 The wife's necessaries are such as the law deems 
 essential to her health and comfort: food, lodging, 
 clothing, fuel, washing, medical attendance, etc. 
 These are to be determined, both in amount and 
 kind, by the means and social position of the hus- 
 band and wife. Not by their real position, but by 
 their apparent and assumed position. If the hus- 
 band's position is an imposition, still he is estopped 
 from setting up that fact. The lawful measure of 
 mercantile phlebotomy seems to be what the hus- 
 band's apparent venous system will aif ord. If he has 
 passed in society as a blood, it is in vain for him to 
 deny his fullness when called on to pay his bills. 
 What says Goldsmith — qiii nihil tetigit quod non 
 ornavit f 
 
 When lovely womau stoops to quarrel, 
 And from lier husband goes astray, 
 
 What charm can hide affairs immoral, 
 What art can chase his duns away ? 
 
 The ou]_y chance to quell the riot, 
 And hide the quarrel from the day, 
 
 The scandal hush, and keep those quiet 
 Who ring his door-bell, is to pay. 
 
 In the new era of perfect equality between the 
 sexes, which is dawning, it will be worth while to 
 notice whether the law of necessaries will be ex- 
 tended in favor of husbands as against wives, and
 
 THE LAW OF NECESSARIES. 31 
 
 if SO, what articles it will embrace — whether a 
 club, cigars, night-key, etc., will be among them. 
 
 But to descend to particulars. New bonnets to a 
 reasonable extent are doubtless necessaries, although 
 fashion does not seem at present to regard any cov- 
 ering for the female head as indispensable. King 
 Lear, who is quite an authority on the subject of 
 necessaries, expresses himself sensibly on the par- 
 ticular branch of mantna-making and millinery; 
 one would almost imagine him a modern husband 
 and fatlier of girls : 
 
 " Thou art a lady ; 
 If only to go warm were gorgeous. 
 Why, nature needs not what thou gorgeous wear'st, 
 Which scarcely keeps thee warm. But, for true need, 
 You heavens, give me that patience, patience I need 1" 
 
 The courts have been very mean toward the ladies 
 on the subject of millinery. Thus in Atkins v. 
 Ciirwood (7 C. and P. 759), the court held the hus- 
 band, a poor barrister, not bound for sundry dry 
 goods, to the trifling amount of £67, ordered by. 
 his wife as an outfit for a watering-place, whither 
 her husband had brutally forbidden her going. 
 And in pronouncing the judgment, Lord Abinger 
 heartlessly said: ''Let the wedding dresses be 
 struck off." Then, too, in Lane v. Ironmonger (13 
 M. and W. 368), bonnets, laces, feathers and 
 ribbons, to the insignificant amount of £5,287 in 
 part of a year, were fiendishly declared extravagant 
 by the same cold-blooded judge. Verily, his sins 
 against the angelic sex are like his name — Scarlett. 
 Furniture of a house, for a wife to whom the court
 
 32 THE LAW OF NECESSARIES. 
 
 had decreed £380 a year as alimony, was held neces- 
 sary.* It appearing to the court that the wife had 
 nothing to sit on, or eat from, they took a chari- 
 table view of her necessities. It is much better, it 
 seems, to be a special pleader than a sergeant at 
 law, for while articles of jewelry were held super- 
 Sous for the wife of the former, f the latter was 
 held liable for silver fringes to a petticoat and side- 
 saddle, value £94.;}: This seems to be based on the 
 principle of natural philosophy, that the higher one 
 rises thfe more he has to *' come down." I dare say 
 that unfortunate sergeant regretted the bridal that 
 rendered such a luxurious saddle necessary. A 
 horse worth $40, prescribed by a physician for exer- 
 cise to the invalid wife of a miller earning 130 per 
 month, was held necessary. § This must have been 
 a grinding decision to that husband. Probably, in 
 his indignation, he tolled it to all his customers. 
 But this was hardly more grinding than that other 
 case, which compelled the husband to pay for his 
 wife's false teeth. |1 Would not this have been a 
 proper case for the incidental application of the 
 maxim: Falsus in uno,falsus in omnihusf But 
 the doctrine of estoppel was invoked in this case — 
 it appearing that the husband knew of the procural 
 of the plate, and did not object, the court said it 
 did not lie in Ms mouth to repudiate the implied 
 contract. In another case the court inclined to 
 hold a pia.no necessary, under some circumstances, 1" 
 
 * Hunt V. DeBlaqiiiere, 5 Bing. 550. 
 
 t Montagu v. Benedict, 3 B. and C. 631. 
 
 tSkin. 349. 
 
 § Cornelia v. Ellis, 11 Ul. 584. 
 
 II Gilman v. Andraa, 28 Vt. 241. 
 
 t Parke v. Kleeber, 37 Penn. St. 251.
 
 THE LAW OF NECESSARIES. 33 
 
 which is quite in harmony with the tenor of author- 
 ity. The law, with a lively sense of its own worth 
 and dignity, considers necessary the fees paid by a 
 wife, whose husband had deserted her, for profes- 
 sional advice as to the proper mode of dealing with 
 tradesmen who were pressing for payment.* What 
 advice was given is not disclosed, but probably it 
 was not to deal with them. 
 
 But there are some things that are not necessary. 
 For instance, where money was lent for the purchase 
 of a passage ticket to enable the wife to join her 
 husband, the court held such joinder of parties 
 unnecessary, and the money not recoverable, f 
 
 At common law the husband is not bound to fur- 
 nish the file to sever the marriage fetters; counsel 
 fees in a suit for a divorce, whether the wife be 
 plaintiff or defendant, are not a necessary. J So, 
 too, in regard to the expense of an indictment by 
 the wife for assault. § In this case the judge said: 
 "It cannot be maintained that an indictment 
 against the husband for assaulting his wife is a neces- 
 sary." To hold otherwise would be like compelling 
 St. Lawrence's executors to pay for the gridiron on 
 which he was roasted. I presume the true princi- 
 ple of this decision is that the indictment would 
 be such a luxury to the wife's feelings as to take it 
 out of the list of necessaries. Although, as has 
 been stated, medical attendance is generally con- 
 sidered a necessary, yet a quack's bill was thrown 
 
 ♦Wilson V. Ford, 3 Ex. 63. 
 
 t Knox V. BusheU, 3 C. B. (N. S.) 334. 
 
 t Coffin V. Dunham, 8 Cush. 404. 
 
 § Qrindall v. Godmond, 5 Ad. and El. 755. 
 
 5
 
 34 THE LAW OF NECESSARIES. 
 
 out in a case where the services were rendered with- 
 out the husband's assent.* 
 
 This is an amusing case in several particulars. 
 The plaintiff was in the habit of putting one Mrs. 
 Davis into a mesmeric sleep, and thereupon she 
 became a clairvoyant and prescribed the medicines, 
 which the plaintiff furnished. After payment of 
 all expenses the proiits of this course of business 
 were equally divided between the plaintiff and Mrs. 
 Davis. The defendant claimed, in addition to the 
 ordinary doctrine of necessaries, that the plaintiff 
 and Mrs. Davis were partners, and that the plain- 
 tiff alone could not maintain the action. On the 
 main point Judge Fletcher, a wise judge and a 
 merry, observed: " The law does not recognize the 
 dreams, visions or revelations of a woman in a mes- 
 meric sleep as necessaries for a wife, for which the 
 husband, without his consent, can be made to pay. 
 These are fancy articles, which those who have 
 money of their own to dispose of may purchase, if 
 they think proper, but they are not necessaries 
 known to the law, for which the wife can pledge 
 the credit of the absent husband." On the ques- 
 tion of partnership, the court, with more literal 
 correctness than ordinary, said: "It is not neces- 
 sary that a dormant partner should join with the 
 ostensible partners of a firm in an action against 
 a person who dealt only with the ostensible part- 
 ners." 
 
 Another case in which the defendant was held not 
 responsible for "fancy articles" is Freestone v. 
 Butcher (9 Carr &, Payne, 643). The plaintiff was 
 
 * Wood V. KeUy, 8 Gush. 406. 
 
 1
 
 THE LAW OF NECESSARIES. 35 
 
 a dealer in foreign birds. The defendant was 
 curate of Milton. The action was brought to 
 recover £757, balance of £959, for live foreign birds 
 supplied to the defendant's wife, from February to 
 December, 1839. The defendant and his wife lived 
 together in the rectory house at Milton, where the 
 defendant had caused a room to be fitted up as an 
 aviary. Between six and seven hundred birds, 
 mostly foreign, consisting of lories, avadavats, love 
 birds, bishop birds, cardinals (appropriate enough 
 for a curate's wife), quakers, cut-throats and mani- 
 kins, had been delivered there by coach. In March, 
 1840, the defendant sold about two hundred of the 
 birds for £110, and wrote a dunning letter for part 
 of the price. The birds had been charged to '' Mrs. 
 Dr. Butcher" in the plaintiff's books, and the 
 plaintiff had drawn bills on her, which she had 
 accepted, and which had been paid out of her 
 moneys, she having a separate income and bank 
 account. It was held that the circumstances did 
 not show any agency on the part of the wife to bind 
 the husband, and that the birds were not necessa- 
 ries. It came out that the doctor had once prayed 
 an allowance from the court of chancery for the 
 maintenance of his children, and Lord Abinger 
 thought that if he needed that, his wife did not 
 need "avadavats and mocking-birds." On the 
 point of agency, he put the illustration of a wife's 
 ordering "five puncheons of rum and five hogs- 
 heads of sugar," as an example of an excessive 
 order, but his lordship did not have the temerity to 
 intimate that, if the five puncheons of rum had 
 been reasonablej the five hogsheads of sugar would
 
 36 THE LAW OF NECESSARIES. 
 
 not have been an appropriate concomitant. But 
 such a vulgar ilhistration was what one might 
 expect from a judge who would debar the fair sex 
 of their just millinery. 
 
 Money, the prime necessity of life, was not re- 
 garded at law as necessary, for when lent to the 
 wife, Avithout the husband's request, although to 
 purchase necessaries, it was held not recoverable.* 
 But this was corrected in equity, if the money actu- 
 ally went for necessaries, the lender being, by a 
 stretch of conscience, put in the place of the trades- 
 man, and allowed to recover. f This seems a very 
 unnecessary circumlocution. It is one of the par- 
 ticular beauties of that system of jurisprudence, in 
 which law is one thing and justice another. 
 
 Infancy is an age of numerous demands. This 
 is true in law as in nature. The older a man grows 
 the fewer his needs. Thus Lear says : 
 
 "Age is unnecessary ; \ on my knees I beg 
 That you'll vouchsafe me o'adinent, bed and food." 
 
 Infancy is generally regarded as the age of help- 
 lessness ; but in law an infant has the power to 
 help himself to his neighbor's goods without com- 
 pensation, unless they come within the description 
 of necessaries, or the neighbor within that of extra- 
 ordinarily prudent men. An infant's necessaries 
 are judged by the same rules as those of a married 
 woman, and are the same, with one addition — edu- 
 cation. This is denied to women, theoretically, 
 because they are presumed to have acquired it suffi- 
 ciently before marriage ; but, - virtually, because it 
 
 * stone V. McNair, 7 Taunt. 432. 
 
 t Walker v. Simpson, 7 W. and S. 83. 
 
 J That is, has few wants.
 
 THE LAW OF NECESSARIES. 37 
 
 is of SO little use to them after marriage. The 
 theory of the common law is that women do not 
 need to know any thing, except enough to get a 
 husband ; the husband '' knows it all.'' Even the 
 infant's necessary education is limited ; it does not 
 include a collegiate course.* In this case the judge 
 thought " a good common-school education " might 
 be *' strongly pronounced " as necessary. Inasmuch 
 as the free-school system prevails in Vermont, I am 
 inclined to agree with him. But there is a case on 
 the subject of education even more illiberal than 
 this, and which leads us to doubt Lamb's sound- 
 ness when he supposed that "lawyers were chil- 
 dren once." *' The treats of an undergraduate at 
 college are not necessaries."f Such is the brief 
 and contemptuous language of the law in a case in 
 which it appeared that the defendant, when an 
 infant at college, was under medical treatment for 
 measles and inflammation of the lungs, and was 
 ordered to take fruit, marmalade, ices and soda 
 water, and that he merely invited his infantile mates 
 to help him make way with this nauseous physic. 
 It also appeared that his father was in aflQuent cir- 
 cumstances, and was governor of Ceylon. An intel- 
 ligent and incorruptible jury, bearing in mind the 
 language of the missionary hymn which they sang 
 when infants : 
 
 " the spicy breezes 
 
 Blow soft from Ceylon's isle. 
 And every prospect pleases. 
 
 And only man is vile," — 
 
 were pleased to hold the governor's son responsible 
 
 * Middlebury College v. Chandler, 16 Vt. 683. 
 t Brookerr. Scott, 11 M. and W. 67.
 
 38 THE LAW OF NECESSARIES. 
 
 for these sugar-coated symposia. But the court 
 above, having no such views of physic, held them 
 superfluous. It not appearing that the infant 
 guests were troubled with measles, or that if they 
 were, it was the province of the governor's son to 
 cure them, the court decided that they would not 
 break out of well-settled rules, and so destroyed the 
 credit of that physician's prescriptions with that 
 particular apothecary. Of a piece with this are the 
 old decisions which frown on balls and serenades, 
 holding Terpsichore and Polymnia to be ornamental 
 and not useful maidens. Perhaps more respect 
 would be paid to the claims of these muses in these 
 days, when a prima donna receives more than a 
 chief -justice, and the balancing of a chancellor is 
 less lucrative than that of a ballet dancer. A pair 
 of solitaires (or shirt studs) worth £25 are not, it 
 would appear, necessaries for any infant.* So in 
 regard to a stud of horses, f Betting books are not 
 necessaries. J Better use might be made of them. 
 This was an action on account to recover of the 
 defendant, an infant at the time when the debt was 
 contracted, about £200, for ornamental stationery 
 and jewelry, including ear-rings, cigar cases and 
 betting books. It was shown that this precocious 
 debtor had, in his infancy, contracted debts to the 
 amount of £40,000, a wife and a baby. In answer 
 to the chief -justice's question whether a wife were a 
 necessary. Sergeant Hawkins replied, "not for a 
 youth of twenty, and that if she were, a baby was 
 
 * Ryder v. Wombwell, 4 Exch. 32. 
 
 + Merriam v. Cunningham, 11 Cush. 40. 
 
 t Genner x\ Walker, 3 Am. Law Rev. 590.
 
 THE LAW OF NECESSARIES. 39 
 
 not." (The learned sergeant evidently knows more 
 of law than of matrimony. ) In regard to the ear- 
 rings, the chief observed : ''If they were pur- 
 chased for one young lady, and the defendant was 
 engaged to marry another, they could not be nec- 
 essary." This seems hard ; if he did not marry the 
 first, this Cockney lover at least wanted to give her 
 a hearing. Saddles, harness and carriages may, 
 under some circumstances, be necessaries, but ordi- 
 narily are not.* Presents from a bridegroom to his 
 bride may be necessaries, f So much is allowed to 
 Cupid and cupidity. And so, on such occasions, 
 the law tolerates a certain amount of smartness, and 
 deems wedding garments necessary for an infant 
 about to marry. I Law and gospel agree in this, 
 only the latter makes them indispensable. To mili- 
 tary gentlemen a similar concession is made, and 
 the uniform of an officer's servant is adjudged nec- 
 essary ; but not cockades for his whole company ; 
 nor in another case would the court stand a tailor's 
 bill of £840 for thirteen months, including 19 
 coats, 45 waistcoats and 38 pairs of trousers. || But 
 to other people dandyism is superfluous — no kid 
 gloves, cologne, silk cravats or walking canes. § 
 An insurance contract is not a necessary, say the 
 books, 1" but this cannot apply to life insurances, 
 which are as unavoidable now-a-days as taxes. An 
 
 * Harrison v. Fane, 1 Man. and Gr. 550. 
 
 t Genner v. Walker, 3 Am. Law Rev. 590. 
 
 t Sams V. Stockton, 14 B. Monr. 233. 
 
 II Hands v. Slaney, 8 Term, 578; Burghardt v. Angerstein, 6 C. and 
 
 P. 690. 
 § Leflls V. Sugg, 15 Ark. 137. 
 t N. H, Ins. Co. V. Noyes, 32 N. H. 315.
 
 40 THE LAW OF NECESSARIES. 
 
 infant's board is a necessary,* but not so with tim- 
 ber to repair his house, f And, finally, to come 
 down to the matter of greatest interest to our j)ro- 
 fession, counsel fees in a suit about the infant's real 
 estate are said not to be necessary. I The Connec- 
 ticut courts hold that there is no just ground for 
 this rule, I and this seems more consonant with 
 reason, for a suit is frequently the only means by 
 which the infant can be redressed. But the case 
 which most astonishes us is one in which the Eng- 
 lish court recently decided, that, unless special cir- 
 cumstances are shown, tobacco is not a necessary to 
 any infant! How this reads, when we are informed 
 that at a recent dedication of a new inn of court, 
 the lord high chancellor, the lord chief-justice, and 
 many of the judges and most eminent counselors of 
 England, smoked after dinner in the withdrawing 
 room, with and out of compliment to the Prince of 
 Wales! Perhaps this is one of the " special circum- 
 stances " under which the use of tobacco would be 
 tolerated in an infant. 
 
 The measure of necessaries is aifected by the char- 
 acter of the tribunal to which it is left to decide. 
 As we have seen, courts are always restricting the 
 verdicts of juries on this point. Twelve men have 
 so many more wants than one man, that they natu- 
 rally take a larger view of the subject. In the soli- 
 taire case, it was held that the question was one for 
 the judge and not for the jury, and accordingly the 
 
 * Bradley v. Pratt, 23 Vt. 378. 
 t Freeman v. Bridger, 4 Jones' Law, 1. 
 t Phelps V. Worcester, 11 N. H. 51. 
 I Munson v. Washband, 31 Conn. 303.
 
 THE LAW OF NECESSARIES. 41 
 
 verdict was set aside. Justice Coleridge, in the 
 betting-book case, remarking on tliis, observed : 
 " It would make the determination of these cases 
 turn too much upon the individual tastes or ideas 
 of the judge. For instance, as to smoking, Sir 
 Benjamin Brodie vehemently objected to it ; and 
 perhaps a judgment against cigar cases might result 
 from Baron Bram well's disliking it." The better 
 doctrine seems to be, that it is a question for the 
 jury, unless they are too liberal, and then it be- 
 comes a question for another jury. Thus juries are 
 '* pressed" into right verdicts, as Pat was "to turn 
 volunteer." The admission of women to the jury 
 box will probably render pretty much every thing in 
 the shops necessary for wives and infants. A bitter 
 day will that be for the ghost of the wretched 
 Abinger! 
 6
 
 42 WAGERS. 
 
 WAGERS. 
 
 No. 145 of the Spectator is mainly devoted to a 
 complaint against wagering disputants at the coffee 
 houses. It seems they were mostly law students : 
 '*I will not here repeat what Hudibras says of such 
 disputants,* which is so true that it is almost pro- 
 verbial ; but shall only acquaint you with a set of 
 young fellows of the inns of court, whose fathers 
 have provided for them so plentifully that they 
 need not be very anxious to get law into their heads 
 for the service of their country at the bar." One of 
 these offensive and unlearned, but wealthy young 
 gentlemen (the correspondent goes on to complain), 
 offered to lay him ten guineas that he had mis- 
 quoted a passage from Tacitus, and the correspond- 
 ent "was dumb for want of ten guineas." This 
 same young gentleman, he continues, "has five 
 guineas upon questions in geography, two that the 
 Isle of Wight is a peninsula, and three guineas to 
 one that the world is round. We have a gentleman 
 comes to our coffee house, who deals mightily in 
 antique scandal ; my disputant has laid him twenty 
 pieces upon a point of history, to wit : that Caesar 
 never lay with Oato's sister, as is scandalously re- 
 ported by some people. There are several of this 
 sort of fellows in town, who wager themselves into 
 
 * "I have heard old cunning stagers 
 Say, fools for arguments lay wagers."
 
 WAGEBS. 43 
 
 statesmen, historians, geographers, mathematicians, 
 and every other art, when the persons with whom 
 they talk have not wealth equal to their learning." 
 In No. 521, a correspondent tells how he has made a 
 fortune by wagers : "Whenever I heard any narra- 
 tion uttered with extraordinary vehemence, and 
 grounded upon considerable authority, I was always 
 ready to lay any wager it was not so. * * * * 
 I had arrived at a particular skill in warming a man so 
 far in his narration as to make him throw in a little 
 of the marvelous, and then, if he has much fire, the 
 next degree is the impossible. Now this is always 
 the time for fixing the wager." 
 
 Brooke's coffee house in London was the great 
 resort of betting men, and the betting-book of that 
 establishment, still preserved, records many singu- 
 lar wagers. Horace Walpole gives accounts of sev- 
 eral wagers in his time ; for instance, Lord Cob- 
 ham, on a wager of five guineas with Lord Nugent, 
 spit in Lord Hervey's hat which he was holding in 
 his hand ; "a man dropped dead at White's door, 
 and was carried in, and the club immediately made 
 bets whether he was dead or not, and when they 
 were going to bleed him, the wagerersfor his death 
 interposed and said it would affect the fairness of 
 the bet." One Blake "betted 1,500?., that a man 
 could live twelve hours under water, hired a despe- 
 rate fellow, sunk him in a ship by way of experi- 
 ment, and both ship and man have not appeared 
 since." Doubtless an interesting history might be 
 written of gaming and wagers, but that is not our 
 province. I will only add that the mania for bet- 
 ting, prevalent in Addison's and Walpole's day, m-
 
 44 WAGERS. 
 
 .creased down to a period within the memory of men 
 now living. 
 
 At common law wagers were generally valid, al- 
 though not favored. This doctrine, through the 
 good sense of judges and the increasing morality of 
 communities, has been for a century growing more 
 hedged about by restrictions and by statutory enact- 
 ments. At law, wagers are now not recoverable, 
 when the parties had no interest in the subject of 
 the bet ; where it tends to immorality or a breach of 
 the peace, or the injury of third persons, or to the 
 introduction of indecent evidence ; nor where it 
 tends to restrain the exercise of an oflBce or privi- 
 lege, or is against sound policy, etc. It may be in- 
 structive to look over some of the older decisions on 
 the subject, and may disabuse some theologians and 
 moralists of the idea that the world is a great deal 
 worse than it used to be, in one respect at least. 
 
 One of the earliest cases is Pope v. St. Leger (Salk. 
 344). before Lord Holt, in 1693. At play at back- 
 gammon, one of the players stirred one of his men, 
 but did not move it from the point, and the ques- 
 tion was whether he was bound to play it? On this 
 a wager of £100 was laid, and the determination 
 referred to tlie groom porter ; and now in an action, 
 the question was on the statute against gaming, 
 whether this was within the statute? And it was 
 held this wager was not prohibited by the statute, 
 for it was not on the chance of the play, but on the 
 right of the play, which is a collateral matter. This 
 case was cited as authority in a similar case a cen- 
 tury later, but the court seemed to think that it had 
 outlived its usefulness.
 
 WAGEKS. 45 
 
 Earl of March v. Pigot (5 Burr. 2802), A. D. 
 1771, is one of the most charming cases in the 
 books. It exhibits the filial affection of ingenuous 
 British youth in a truly admirable light. "The 
 cause was tried before Lord Mansfield. It was a 
 contract made at Newmarket. The wager was 
 originally proposed between young Mr. Pigot, the 
 defendant, and young Mr. Codrington, to run their 
 fathers (to use the phrase of that place), each 
 against the other. Sir William Codrington, the 
 father of Mr. Codrington, was then a little turned 
 of fifty; Mr. Pigot's father was upward of seventy. 
 Lord Ossory computed the chances, according to 
 the above-mentioned ages of their respective fathers. 
 Mr. Codrington thought the computation was made 
 too much in his disfavor. Whereupon Lord March 
 agreed to stand in his place, and reciprocal notes 
 were accordingly given between the earl and Mr. 
 Pigot." Young Pigot agreed to pay March 500 
 guineas if old Pigot died before Sir William Cod- 
 rington, and March promised to pay young Pigot 
 1,600 guineas in case old Codrington did not sur- 
 vive old Pigot. Xo mention was made about the 
 old fellows then being dead or alive. But the 
 joke was that old Pigot was actually dead; he died 
 at Shropshire at two o'clock in the morning of the 
 same day on which his hopeful son made the hu- 
 morous wager after dinner. The fact, however, 
 was not known to any of the parties. Passionate 
 grief rendered young Pigot momentarily forgetful 
 of his honor, and he declined to pay the wager. 
 "The objection was that the contract was void." 
 For immorality and indecency, of course? Oh, no!
 
 4:6 WAGERS. 
 
 "It was without any consideration, for there was 
 no possibility of the defendant's winning, his father 
 being then actually dead, and therefore he ought 
 not to lose." But the bet was held good, and no 
 animadversion against its character was made by 
 the' great Lord Mansfield. And so the excellent 
 young Pigot, besides being overwhelmed with grief 
 at his sudden bereavement, had to pay his note. It 
 was sneakingly mean and inconsiderate in the old 
 man to die in this underhand way, and thus sub- 
 ject his son, the companion of young noblemen, to 
 the mortification of having bet against a dead cer- 
 tainty. It was a great joke on him, and no doubt 
 he had to pay many dozens of wine to his friends on 
 the event. But it was what you might expect of 
 old Pigot, for the record does not show that he was 
 of noble blood, and so we infer he was plebeian, and 
 knew no better. We cannot understand Lord Ken- 
 yon's remark in Good v. Elliot, that this wager was 
 "somewhat indecorous," and are glad to know that 
 this is the only reprimand to be found among the 
 English judges of a transaction so admirable. 
 
 In Jones v. Randall (Cowper, 37), it was decided 
 in 1774, that an action lies to recover money won 
 upon a wager, '^ whether a decree of the court of chan- 
 cery would be reversed or not on an appeal to the 
 House of Lords," unless the motive be immoral. 
 In arguing against the wager, Mr. Dunning made 
 the following startling statements: "It is essential 
 to the validity of a wager that the event be contin- 
 gent. But the laws of this country are clear, evi- 
 dent and certain ; all the judges know the laws, and 
 knowing them, administer justice with uprightness
 
 WAGERS. 47 
 
 and integrity: The eyent, therefore, was certain." 
 Lord Mansfield condescends to a little grave fun in 
 his decision: "This contract is equal between the 
 parties; they have each of them equal knowledge or 
 equal ignorance; and it is concerning an event 
 which, reasoning by the rules of predestination, is. 
 to be sure, so far certain that it must be as it should 
 afterward happen to be. But it is a future event 
 equally uncertain to the same or of a different opin- 
 ion with the chancellor; the presumption, if any, is 
 rather against the person betting in opposition to 
 the chancellor's judgment." ''As to the certainty 
 of the law mentioned by Mr. Dunning, it would be 
 very hard upon the profession if the law was so cer- 
 tain that everybody knew it; the misfortune is that 
 it is so uncertain that it costs much money to know 
 what it is, even in the last resort." His conclusion 
 is that the transaction "contains nothing either 
 immoral or contrary to justice." He admits that, 
 if the present wager had been made with one of the 
 judges, or with one of the lords, it would have been 
 a bribe; and that, " if laid with the attorney or 
 counsel in the cause, it would have been objectiona- 
 ble." 
 
 Judge Van Ness, of this State, once pronounced 
 this "a strange decision," and Mansfield himself 
 seemed afterward to think so, for in the argument 
 of the subsequent case of Da Costa v. Jones, he in- 
 terrupted counsel to say, "Never was a question 
 more doubtful how it would be decided, till it was 
 actually determined." 
 
 It was held in a more modern case, Evans v. Jones 
 (5 M. & W. 77), that a wager as to the conviction or
 
 48 WAGERS. 
 
 acquittal of a prisoner on a criminal charge is void. 
 One of the judges observes: "It is too late now to 
 say that no wager can be enforced by law, but I 
 think it would have been better if they had origin- 
 ally been left to the decision of the jockey club." It 
 is never too late to mend, and it would be hard in- 
 deed if the bending of the legal twig made an inflexi- 
 ble tree. 
 
 The celebrated case of Da Costa v. Jones (Cowper, 
 729) was an action on a wager between the plaint- 
 iff and the defendant upon the sex of Monsieur Le 
 Chevalier D'Eon. The subject of the wager was a 
 man of singularly effeminate appearance, who was 
 connected with the French embassy at London, in 
 1763. He had served with credit as a soldier. The 
 question of his sex was deemed worthy of tbe atten- 
 tion of the French parliament, which decreed him 
 to be a woman, and to wear feminine apparel, which 
 he did for many years in Paris and London. Horace 
 Walpole says of him: " She looked more feminine, 
 as I remember her, in regimentals, than she does 
 now. She is, at best, a hen-dragoon or a herculean 
 hostess." And again, "Lord Mount-Edgcumbe 
 said excellently, that 'Mademoiselle D'Eon is her 
 own widow.'" Good Hannah More dined with 
 him, and wrote: "She is extremely entertaining, 
 has universal information, wit, vivacity and gayety. 
 Something too much of the latter (I have heard) 
 when she has taken a bottle or two of Burgundy; 
 but this being a very sober party, she was kept en- 
 tirely within the limits of decorum." The agree- 
 ment in the above case was that the defendant, in 
 consideration that the plaintiff would then and
 
 WAGERS. 49 
 
 there pay him seventy-five guineas, should pay the 
 plaintiff three hundred pounds in case the cheva- 
 lier should at any time prove to be a female. The 
 case was tried before Lord Mansfield, in 1777, and 
 the plaintiff had a verdict, Avhich must have been 
 founded on evidence of the chevalier's femininity. 
 On motion in arrest Lord Mansfield said the case 
 had "made a great noise all over Europe ; " that 
 he was " sorry that the nature of the action had not 
 been more fully considered ; " and that the wit- 
 nesses " had not been told they might refuse to give 
 evidence if they pleased:" He continues: "That 
 two men, by laying a wager concerning a third per- 
 son, might compel his physicians, relations and ser- 
 vants to disclose what they knew relative to the 
 subject-matter of the Avager would have been an 
 alarming proi^osition ; " and quite appropriately he 
 adds: " the hai^e stating of it would have startled." 
 He then supposes the case of a " wager upon a mark 
 or defect in a woman's body. Will the court say 
 they would suffer her chambermaid to be called, to 
 give evidence npon such a question?" He consid- 
 erately remarks, " a wager Avhether the next child 
 shall be a boy or a girl hurts no one." His con- 
 clusions are that this action will not lie because it 
 tends to indecent evidence, and to disturb the peace 
 of the individual and of society. 
 
 In Atherfold v. Beard (2 T. R. 610), A. D. 1788, 
 it was held that a wager respecting the future 
 amount of any branch of the public revenne is ille- 
 gal, because it leads to an improper discussion, and 
 is contrary to sound policy. The wager was five 
 guineas whether the Canterbury collection of the 
 7
 
 50 WAGERS. 
 
 duty on hops for the year 1786 would amount to 
 more than the Canterbury collection for the preced- 
 ing year. It was argued in favor of the wager that 
 it did not appear that the parties were hop-growers, 
 and consequently neither could be instrumental in 
 diminishing the revenue on account of any bias 
 arising from the wager; nor could the wager have 
 deterred either party from growing hops, for the 
 hops for that year were planted and in blossom. 
 The argument that needed this answer, although 
 made by Erskine and Garrow, seems queer logic, for 
 if one had an interest in diminishing the revenue, 
 the other had an interest in increasing it, and so 
 the matter was equal. The court put their decision 
 on the ground that it was an "impertinent wager," 
 and tended to ''expose to all the world the amount 
 of the public revenue ! " Buller put it on the ground 
 that it was an "idle wager," and that no "wager 
 between two joersons not interested in the subject- 
 matter is legal." 
 
 Good V. Elliot (3 T. E. 693), A. D. 1790, was a 
 case on a wager, whether Susannah Tye had or had 
 not, before a certain day, bought a wagon. A ma- 
 jority of the court held the wager binding. Buller 
 dissented, and observed: "If the bet is founded on 
 the private transactions, or the interest of a third 
 person, I think it is void. * * * If it concern 
 the person of another, no action can be maintained 
 upon it. And therefore I am of opinion that a bet 
 on a lady's age, or whether she has a mole on her 
 face, is void. No third person has a right to make 
 it a subject of discussion in a court of justice, 
 whether she passes herself in the world as being
 
 WAGERS. 51 
 
 more in the bloom of youth than she really is, or 
 whether what is apparent to every one who sees her 
 is a mole or a wart; and yet these are circumstances 
 which cannot, in a court of law, be stated as an in- 
 jury; for if a man say that a young woman who 
 passes for 23 years of age is 33, or that she has a 
 Avart in her face (which is considered a nasty thing), 
 no action will lie for it. I will put one case more, 
 which, if it do not appear too ludicrous, perhaps 
 may be found to bear upon the present question. 
 Suppose a bet were made whether a young lady 
 squinted with her right eye or her left eye; shall it 
 be the subject of sober inquiry in a court of justice 
 how the organs of her eyes are formed, and which 
 of them it is that looks directly to the object before 
 her? Shall the parties in the action be permitted 
 to say the inquiry is no injury to her, for everybody 
 sees that she squints, and it makes no difference 
 to her whether it be with one eye or the other? No. 
 The answer is, you, the plaintiff and defendant, 
 have no right, by an idle, wanton bet of yours, to 
 bring her person, or even her name, in question." 
 Who would suppose that this was the judge who 
 held that a husband had a right to chastise his 
 wife with a stick not bigger round than his thumb? 
 The gallant judge, however, seems, satirically, as 
 careful of Newmarket contracts as the court in 
 March v. Pigot : " If a person of high rank were to 
 Bell a horse at Newmarket to a person just 21 years 
 of age, for £5,000, whatever the laws of Newmarket 
 may justify, it would not be a pleasant thing to 
 have it discussed in a court of justice, whether the 
 horse were worth more than £25."
 
 52 WAGERS. 
 
 lnRohso7i V. Hall (Peake, K P. 127), A. D. 1792, 
 there was a wager that the plaintiff "did not find 
 two geldings to trot 32 miles in two consecutive 
 hours." The feat was accomplished by trotting one 
 horse twelve miles, another four miles, and then the 
 first horse twelve miles more. (How this made 
 thirty-two miles is not explained.) It was insisted 
 for the defendant that the meaning of the agree- 
 ment was that each horse should trot sixteen miles, 
 but Lord Kenyon thought not. He suited the 
 plaintiff on this point but nonsuited him on an- 
 other. 
 
 In 1808, in Hartley v. Rice (10 East, 20), it was held 
 that a wager, whereby, in consideration that the 
 plaintiff promised to pay the defendant fifty guineas 
 in case he, the plaintiff, should be married within six 
 years, the defendant promised to pay the plaintiff 
 the like sum if the plaintiff should not be married 
 within that time, was void as being in restraint of 
 marriage, no circumstances being shown to render 
 such restraint prudent and proper in the particular 
 instance. The court, consisting of Ellenborough, 
 Grose, Le Blanc and Bayley, were a marrying court, 
 and would not listen to a man contracting to keep 
 himself out of bliss for so short a period even as six 
 years. 
 
 In Hussey v. Crichitt (3 Camp. 168), A. D. 1811, 
 it was held that an action may be maintained upon 
 a wager of a rump and dozen whether the defend- 
 ant be older than the plaintiff. The parties were 
 dining in Furnival's Inn Hall. The only doubt 
 among the court was that entertained by Sir James 
 Mansfield, whether he judicially knew the meaning
 
 AVAGERS. 53 
 
 of a rump and dozen. The dinner cost £18. But 
 it seems that evidence was resorted to for the pur- 
 pose of explaining the meaning of the cabalistic 
 phrase. And in Bulling v. Frost (1 Esp. Cas. 236), 
 Lord Kenyon held an action maintainable to re- 
 cover money lost at the game of all fours, the rules 
 of which must have been proved and explained on 
 the trial. 
 
 In Gilbert v. SyTces (16 East, 150), in 1812, it was 
 held that a wager, by which the defendant received 
 from the plaintiff one hundred guineas on the 31st 
 of May, 1802, in consideration of paying the plaint- 
 iff a guinea a day as long as Napoleon Bonaparte, 
 then first consul of the French republic, should 
 live; which bet arose out of a conversation upon the 
 probability of his coming to a violent death by 
 assassination or otherwise, is void, on the grounds 
 of immorality and impolicy. It appeared that the 
 defendant paid his guinea daily from May 31st, 
 1802, to December 25th, 1804, but no longer. He 
 evidently thought Christmas a good day to stop on. 
 The plaintiff claimed £2,296. It was shown that 
 the bet arose after dinner at the defendant's table. 
 and evidence was adduced to show that it was not 
 intended seriously, but that, although the plaintiff 
 offered to cancel it, the defendant stuck to it out of 
 a sense of houor. The jury found for the defend- 
 ant. It was argued that the bet was impolitic, as 
 giving the plaintiff an interest in the life of a for- 
 eign sovereign, who had become an enemy. Lord 
 Ellenborough gave heed to this suggestion: "Then 
 is not the interest created by this wager likely to 
 induce more proximately mischievous consequences
 
 54 WAGERS. 
 
 to the public than the other instances which have 
 been considered as having that tendency? The 
 mischief is more to be regarded at a time when it 
 has been announced by that enemy, in the preser- 
 vation of whose life the plaintiff has thus created 
 an interest to himself, year after year, that there ia 
 a large force collecting on the opposite coasts ready 
 to be poured into this kingdom, and every Sundny 
 the minds of the subjects are kept alive to the dan- 
 ger; and shall it be allowed to a subject to say, that 
 in case of such an event happening as an invasion 
 of the kingdom by the French ruler, the loss of 365 
 guineas a year depending on that life, would have 
 no operation on his mind when opposed to the call 
 of active duty toward his country; that the moral 
 duties which bind man to man are in no hazard of 
 being neglected, when put in competition with in- 
 dividual interest; that it is not an object to us to 
 prevent even the suspicion, and to repel from us the 
 malignant imputation that we countenance in any 
 manner the idea of assassinating an enemy, and 
 thereby guard against any attempt on his part to 
 retaliate upon a life most dear to us all." Truly, 
 this was a most immoral wager — binding the 
 plaintiff not to kill Napoleon, when it became his 
 duty to do so, and binding the defendant to take 
 his life in order to end his obligation to pay! But 
 the passage quoted from Lord Ellenborough's opin- 
 ion affords striking judicial evidence of the panic 
 which Napoleon's fictitious demonstrations of inva- 
 sion had created in the kingdom of Great Britain. 
 If the little corporal had really set foot on British 
 soil, he would have had nothing to fear from his
 
 "WAGERS. 55 
 
 lordship individually, for he was turned out of the 
 awkward squad of the Lincoln Inn soldiery on 
 account of incorrigible unfitness for military affairs. 
 Napoleon again came in court in Phillips v. Ives 
 (1 Eawle, 36), A. D. 1828, in which it was held that 
 a wager, whether or not Napoleon Bonaparte would, 
 within a specified time, be removed or escape from 
 St. Helena, was illegal and void. In the prevailing 
 opinion the judge said: " I hold that no bet of any 
 kind, about any human being, is recoverable in a 
 court of justice." Two judges, however, dissented, 
 holding that the subject was too far removed to be 
 affected by the wager, either mentally or physically. 
 Bland v. Collett (4 Camp. 187), A. D. 1815, involves 
 a Newmarket episode. The plaintiff, defendant, 
 and a person of the name of Porter, having been at 
 the Newmarket races, in October, the plaintiff one 
 evening boasted of being acquainted with Lord 
 Kensington, and having conversed with him on the 
 turf at a former Newmarket meeting. Porter 
 asserted that the plaintiff had never spoken to 
 Lord Kensington in his life. A bet was talked of 
 on the subject, but none was then laid. Next 
 morning the parties againt met, when Porter asked: 
 " What will you now lay that you conversed with 
 Lord Kensington?" The plaintiff answered 80 
 guineas to 10." The money was accordingly de- 
 posited in the hands of the defendant, as a stake- 
 holder. Upon which Porter exclaimed: "Now I 
 have you; I have made inquiries, and the person 
 you conversed with was Lord Kingston, not Lord 
 Kensington." The plaintiff owned his mistake, 
 but said he had been imposed on, and gave notice
 
 56 WAGEKS. 
 
 to the defendant not to pay over his money. Held, 
 a valid wager. 
 
 In Ditchburn v. Goldsmith (4 Camp. 152), 1815, a 
 wager of £200 to £100 that Joanna Southcote would 
 be delivered of a male child before a certain day, 
 was held void. Joanna, it will be remembered, 
 was an impostor who claimed that she was to be- 
 come the mother of a new Messiah. It was strenu- 
 ously urged by counsel, that the wager was unob- 
 jectionable on the score of injury to her feelings, 
 she having announced tlrat she was pregnant of a 
 male child, although she pretended still to be a 
 virgin; and besides she was dead at the time of the 
 trial. But as soon as it came out in evidence that 
 she was unmarried, Chief Justice Gibbs stopped 
 the trial and dismissed the cause. 
 
 Campbell v. Richardson (10 Johns.) 406, 1813, 
 was a case where the defendant had set up a mark 
 to be shot at for 25 cents a shot, and offered the 
 plaintiff, if he hit it, to pay him 820. The plain- 
 tiff hit the mark, and it was held that this 
 action to recover the $20 was not amiss. This was, 
 as the court said, an innocent wager, certainly, if 
 there ever was one. No doubt Lord Ellenborough 
 would have sustained it, on the ground that it was 
 a praiseworthy method of training up marksmen to 
 resist the incursion of Napoleon, and Lord Eldon, 
 I dare say, would have held the wager innocent, 
 unbiased by any feeling of envy, although he was 
 a notoriously bad shot himself, and was never known 
 to kill any thing but time, as his brother. Lord 
 Stowell, said. 
 
 Fisher v. Waltham (1 Da v. & M.) was a case of a
 
 WAGEKS. 57 
 
 wager by the defendant that he would not sustain 
 his examination as an attorney and be admitted to 
 practice. Although he passed, yet this was held 
 void as a "bubble bet," that is, one which the de- 
 fendant had the power to win at his pleasure. This 
 may be good law in England, but no one could be 
 rejected here if he cried ever so hard. 
 
 Although courts are sometimes in doubt upon 
 wagers as to others, they never have had any doubts 
 when the wager concerned themselves. They are 
 as sensitive as Judge Buller's lady with the mole 
 on her face, as to any inquiry by way of wager into 
 the extent of their knowledge. So Lord Ellen- 
 borough, in 1810, in Henhin v. Guerss (13 East, 
 217), an action on a wager as to the practice of the 
 court upon a given point, held that he would not 
 hold any thing, not even hold still to hear the 
 case. He was not bound to " answer impertinent 
 questions." It was an ''extremely impudent 
 attempt to compel the court to give an opinion 
 upon an abstract question of law, not arising out 
 of pre-existing circumstances in which the jaarties 
 had an interest." No doubt the parties thought 
 themselves lucky to escajDc from his paws without 
 being transported for contempt. 
 
 Even more violent on another question was Lord 
 Loughborough, in Brown v. LeesoJi (2 H. Bl. 43), in 
 1797. Knowing his lordship to be a constant fre- 
 quenter of Brooke's and White's, and intimately 
 acquainted with the mysteries of gambling, the 
 parties were doubtless not prepared for the follow- 
 ing roar, but probably depended on an exercise of 
 the knowledge intimated in his lordship's last sen-
 
 58 WAGERS. 
 
 tence; "Do not swear the jury in this case, but let 
 it be struck out of the paper. I will not try it. 
 The administration of justice is insulted by the 
 proposal that I should try it. To my astonishment, 
 I iind that the action is brought on a wager as to 
 the mode of playing an illegal, disreputable and 
 mischievous game called 'hazard;' whether, allow- 
 ing seven to be the main, and eleven to be a nick 
 to seven, there are more ways than six of nicking 
 seven on the dice? Courts of justice are consti- 
 tuted to try rights and redress injuries, not to solve 
 the proljlems of the gamesters. The gentlemen of 
 the jury and I may have heard of ' hazard ' as a 
 mode of dicing by which sharpers live, and young 
 men of family and fortune are ruined; but what 
 do any of us know of 'seVen being the main,' or 
 'eleven being the nick to seven?' Do we come 
 here to be instructed in this lore, and are the 
 unusual crowds (drawn hither, I suppose, by the 
 novelty of the expected entertainment) to take a 
 lesson with us in these unholy mysteries, which 
 they are to practice in the evening in the low gam- 
 ing houses in St. James street, pithily called by a 
 name which should inspire a salutary terror of 
 entering them? Again, I say, let the cause be 
 struck out of the paper. Move the court, if you 
 please, that it may be restored, and if my brethern 
 think that I do wrong in the course that I now 
 take. I hope that one of them will officiate for me 
 here, and save me from the degradation of trying 
 whether there be more than six ways of nicking 
 seven on the dice, allowing seven to be the main 
 and eleven to be a nick to seven ' — a question, after
 
 WAGERS. 59 
 
 all, admitting of no doubt, and cajtable of mathe- 
 matical demonstration." The court, on review, sus- 
 tained this decision. They could hardly do other- 
 wise, for Alexander was the only one of them who 
 knew any thing of the subject, and. he, as we have 
 seen, "would not tell." Counsel, in arguing this 
 case, cited Fope v. St. Leger, but it received no 
 credit.
 
 60 THE ANIMAL KINGDOM IN COURT. 
 
 THE ANIMAL KINGDOM IN COURT. 
 
 One of man's proudest boasts is his assumed 
 superiority to, and sovereignty over, the brute crea- 
 tion. In a state of innocence, we are informed by 
 a reliable authority, he had dominion given to him 
 over the beasts. His superiority was early lost, in 
 a great degree — perhaps as one of the sad conse- 
 quences of the fall. In a state of nature, even since 
 the fall, his sovereignty has been occasionally, in 
 some measure, restored; probably as a reward for 
 his desertion of the impurities of the world and of 
 society. Thus, in Cowper — a recognized legal 
 authority — Alexander Selkirk, cast away on a desert 
 island, says to himself: 
 
 " I'm monarch of all I survey. 
 
 My right there is none to dispute. 
 From the center all round to the sea, 
 I'm lord of the fowl and the brute." 
 
 This was not a mere empty boast, for he says 
 later, in speaking of the docility with which the 
 animal race yielded to his authority: 
 
 " Their tameness is shocking to me." 
 
 How different in a state of so-called civilization? 
 We pay taxes on our dogs, and they give us hydro- 
 phobia; we feed our horses dainty oats, and install 
 them in luxurious stables, and they kick us or run 
 away with us; we transport the bee from the rough
 
 THE ANIMAL KINGDOM IN COUKT. 61 
 
 forest tree to a neat and comfortable hive, and he, 
 not caring a straw, stings us; we pay several thou- 
 sand dollars for a fine ram and he butts us, or for a 
 blooded bull, and he lifts us, unwilling, over the 
 fence, when we would go our own gait. How feel- 
 ingly does the philosopher Launce describe what he 
 undergoes for his ungrateful cur: "I have sat in 
 the stocks for puddings he hath stolen, otherwise 
 he had been executed; I have stood on the pillory 
 for geese he hath killed, otherwise he ,had suffered 
 for't." 
 
 But our damages are not confined to our own 
 persons. We are forced to pay for the hurt that 
 animals cause others. Exactly to what extent 
 mankind are legally responsible to each other for 
 the pranks of the animal kingdom, has a good deal 
 puzzled the courts to determine, but the rules 
 arrived at have been well summed up by Judge 
 Selden, in Earl v. Van Alstyne, the quotation of 
 which, as possibly a piece of superfluous serious- 
 ness, I now apologize for, before proceeding to the 
 normal levity of my subject. The learned judge 
 says the gist of the decision is: '"'1. That one who 
 keeps or owns an animal of any kind, becomes liable 
 for any injury the animal may do, only on the ground 
 of some actual or presumed neglect on his part. 
 3. That it is essential to the proof of neglect, and 
 sufficient evidence thereof, that the owner be shown 
 to have had notice of the propensity of the animal 
 to do mischief. 3. That proof that the animal is 
 of a savage and ferocious nature is equivalent to 
 proof of express notice. In such cases notice is 
 presumed."
 
 62 THE ANIMAL KINGDOM IN COURT. 
 
 As we have seen in " Law and Lawyers in Litera- 
 ture," dogs have been a prominent subject of mock- 
 trials among authors. Aristophanes and Eacine 
 have condescended to them. And in real life they 
 have acted an important part as the cause of con- 
 siderable litigation. " Dogs " forms a distinct head 
 in the digest. Grave judges have said and decided 
 kind things about them. 
 
 Eldon's dog Pincher is famous, and his master 
 made a testamentary provision for him. He was 
 introduced into several portraits of his lordship, 
 who said : " Poor fellow, he has a right to be painted 
 with me; for when my man Smith took him the 
 other day to a law bookseller's, where there were 
 several lawyers assembled, they all received him with 
 great respect, and the master of the shop exclaimed : 
 ' How very like he is to old Eldon, particularly when 
 he wore a wig; ' but, indeed, many people say he is 
 the better looking chap of the two." 
 
 Erskine had a favorite dog that always attended 
 him in consultation, and apparently gave more heed 
 than his master. It is true that on this side of the 
 Atlantic it has been mooted whether dogs are prop- 
 erty; but in Great Britain, as I infer from a cur- 
 sory view, they have always been held capable of 
 being stolen as well as of stealing. What has made 
 the English judges so tender toward dogs I cannot 
 guess, unless it may be that they themselves so 
 strongly resemble poodles, when they get their wigs 
 on. They have held that to justify the killing of 
 a dog for pursuing fowl, he must be caught and 
 slain in flagrante delicto. Dogs are protected, too, 
 aorainst deceit and undue izifluence. Thus in
 
 THE AlSriMAL KINGDOM IN COURT, 63 
 
 Toionsend v. Wathen (9 East, 277), the defendant 
 was possessed of a certain wood, situate near the 
 premises of the plaintiff, and wrongfully intending, 
 etc., to destroy the plaintiff's dogs, had placed 
 traps in and about the wood, and near to certain 
 public highways and footways, and near to the 
 grounds of the plaintiff, and had placed pieces of 
 flesh and stroug-smelling things in and about the 
 said traps, and had procured to be trailed around 
 about the traps similar attractive scents, and had 
 continued the same, etc. ; the plaintiff's dogs were 
 thus often caught, and there was evidence that the 
 defendant had offered his servant Is. for every dog 
 killed. It was said "Per Cur." — I don't under- 
 stand that this really means "by a dog," although 
 it would seem not unreasonable — that this could 
 not be tolerated. In another action, of damages 
 for stabbing a dog, which occurred in a dog tussle, 
 the plea was held bad on demurrer, because it did 
 not allege that the stabbing was necessary to part 
 the dogs. And again, where the plea attempted to 
 justify the killing of a dog because he was running 
 after hares, it was held bad, because it did not aver 
 that the dog belonged to an unqualified person, 
 etc. Vere v. Lord Cawder (11 East, 568). Chief 
 Justice Holt seems to be an exception to the rest 
 of the English judges on this point, for he held, in 
 SmitliY. Pelah (3 Str. 1264), that if one trod on a 
 dog's toes, and the dog resented it, an action would 
 lie against the owner; but he put it on the ground 
 that the dog had once bit a man, and the owner 
 had neglected his duty of hanging the offender. 
 Two things are inferable from this : first, that Chief
 
 64 THE ANIMAL KINGDOM IN COUET, 
 
 Justice Holt was not troubled with corns; and 
 second, that some dog had, at some time, "got a 
 holt of him," as the countrymen phrase it. We 
 know that Lord Camden was very tender of inflict- 
 ing the punishment of the stocks, because he once 
 sat in them himself, by way of experiment, and his 
 friend forgot him and left him locked in for ten 
 hours. So, too, Judge Holt, in his youth, which 
 was a wild one, may have had a dose of dog's tooth, 
 which left an equally deep-seated impression. 
 
 On the other hand, in Stansfeld v. Boiling (22 
 L. T. Rep. [N. S.] 799, Ex.), it was held where a 
 shopkeeper had spread poison on bread and cheese, 
 and placed them under his counter, for the purpose 
 of destroying rats, and the plaintiff's dog came be- 
 hind the counter and ate the poison, and died in 
 consequence, that the defendant was not liable. 
 
 In America, dogs have not been treated with the 
 like respect. Wiley v. Slater (22 Barb. 506) was 
 an action to recover damages for injuries inflicted 
 by the defendant's dog on the plaintiff's dog. Judge 
 W. F. Allen, who for some years controlled the 
 finances of this State, could not control his sense of 
 the ridiculous on this occasion, and held forth as fol- 
 lows: "This is the first time I have been called on 
 to administer the law in the case of a pure dog 
 fight, or a fight iu which the dogs, instead of the 
 owners, were the principal actors. I have had occa- 
 sion to preside upon the trial of actions for assaults 
 and batteries originating in affrays in which the 
 masters of dogs have borne a conspicuous part, and 
 acquitted themselves in a manner which might well 
 have aroused the envy of their canine dependents.
 
 THE ANIMAL KINGDOM IN COURT. 65 
 
 The branch of the law therefore applicable to direct 
 conflicts and collisions between dog and dog is en- 
 tirely new to me, and this case opens up to me an 
 entire new Seld of investigation. I am con- 
 strained to admit total ignorance of the code duello 
 among dogs, or what constitutes a just cause of 
 offense, and justifies a resort to the ultima ratio 
 regem" — [regum, your honor means, and very sig- 
 nificant is the correct termination in this con- 
 nection) — " a resort to arms, or rather to teeth, for 
 I'edress; whether jealousy is a just cause of war, 
 or what different degrees and kinds of insult or 
 slight, or what violation of the rules of etiquette, 
 entitle the injured or offended beast to insist upon 
 prompt and appropriate satisfaction, I know not, 
 and am glad to know that no nice question upon 
 the conduct of the conflict, on the part of the prin- 
 cipal actors, arises in this case. It is not claimed 
 upon either side that the struggle was not, in all 
 respects, dog-like and fair. Indeed, I was not be- 
 fore aware that it was claimed that any law, human 
 or divine, moral or ceremonial, common or statute, 
 undertook to regulate and control these matters, 
 but supposed that this was one of the few privileges 
 which this class of animals still retained in the do- 
 mesticated state; that it was one of their reserved 
 rights, not surrendered when they entered into and 
 became a part of the domestic institution, to settle 
 and avenge, in their own way, all individual wrongs 
 and insults, without regard to what Blackstone or 
 any other jurist might write, speak or think of the 
 'rights of persons,' or 'rights of things.' I have 
 been a firm believer with the poet in the iustruct- 
 9
 
 i 
 
 66 THE ANIMAL KIXGDOM IN COURT. -^ | 
 
 ive" — (intuitive, Mr. Eeporter, I guess) — "if not 
 semi-divine right of dogs to fight; and with him 
 would say: 
 
 ' Let dogs delight to bark and bite, 
 For ftod bath made them so ; 
 Let bears and lions growl and fight. 
 For 'tis their nature to.' 
 
 " It is possible that, had the owners of both dogs 
 been present, the belligerents would have been 
 changed, and the familiar questions growing out (»f 
 son assmilt demesne, and molliter manus imposuit, 
 would have been presented, but no such questions 
 are made here. 
 
 •' The defense is not rested upon the principle of 
 self-defense, or defense of the possession of the 
 master of the victorious dog. Had this defense 
 been interposed, a serious and novel question would 
 have arisen, as to the liability of the offending dog 
 for excess of force, and whether he would be held 
 to the same rules which are applied to human beings 
 in like cases offending; whether he would be held 
 strictly to the proof of the necessity and reasonable- 
 ness of all the force exerted, under the plea that in 
 defense of his carcase, or the premises committed to 
 his watch and care, ' he did necessarily a little bite, 
 scratch, wound, tear, devour and kill the plaintiff's 
 dog, doing no unnecessary damage to the body or 
 hide of the said dog.' " 
 
 Then follow some ohiier dicta about the facts of 
 the case, and the judge winds up in this entertain- 
 ing strain: "It is very proper to invest dogs with 
 some discretion while upon their master's premises, 
 in regard to other dogs, while it is palpably Avrong
 
 THE ANIMAL KINGDOM IX COURT. 67 
 
 to allow a man to keep a dog who may or will, 
 under any circumstances, of his own volition, attack 
 a human being. If owners of dogs, whether valua- 
 ble or not, suffer them to visit others of their spe- 
 cies, particularly if they go uninvited, they must be 
 content to have chem put np with dog fare, and 
 that their reception and treatment shall be hospita- 
 ble or inhospitable, according to the nature of the 
 particular temper and mood, at the time, of the dog 
 visited. The courtesies and hospitalities of dog life 
 cannot well be regulated by the judicial tribunals of 
 the land. 
 
 '' The evidence is slight that the dog died in con- 
 sequence of this fight. I should infer from the evi- 
 dence, that he continued his annoying visitations un- 
 til some one, who did not own a white dog with black 
 spots on his head, made use of a shot-gun or 
 Sharpe's rifle, or some other (sic) substitute to abate 
 the nuisance. But as this question is left in doubt 
 by the evidence, the judgment of the justice is con- 
 clusive as to the cause of the death. I can see, how- 
 ever, no just grounds for the judgment. It can 
 only be supported on the broad ground that when 
 two dogs fight, and one is killed, the owner can 
 have satisfaction for his loss from the owner of the 
 victorious dog; and I know of no such rule. The 
 owner of the dead dog would, I think, be very 
 clearly entitled to the skin, although some, less lib- 
 eral, would be disposed to award it as a trophy to 
 the victor, and this rule would ordinarily be a full 
 equivalent for the loss; and with that, unless the 
 evidence differ materially from that in this case, he 
 should be content."
 
 68 THE ANIMAL KINGDOM IN" COURT. 
 
 The judge evidently did not own a dog, or lie 
 would not have used those heartless expressions 
 about a dog's value. 
 
 In walking through a park and observing the 
 signs, "All dogs found on these grounds without 
 their owners, will be shot," a friend of mine ex- 
 claimed, " That's a hard case for dogs that can't 
 read." This humane idea was carried into practice, 
 in favor of the human species, at least, in Sarch v. 
 Blackiurn (4 C. and P. 397), in which it was held 
 that one who entered an inner inclosure where a 
 fierce dog was confined, and was bitten, could main- 
 tain his action for damages, although "beware of 
 the dog" was posted up in a conspicuous place, it 
 being also shown that he could not read. This is 
 one of the few instances in which "ignorance is 
 bliss."' But humanity Avould suggest in such cases 
 the exhibition of some pictorial warning to trespass- 
 ers ; for instance, a sign representing a man, with a 
 dog seizing him by the seat of his trousers, would 
 be quite unmistakable, and save the time of the 
 courts. Nothing, then, short of physical blindness 
 on the part of the trespasser, or judicial blindness 
 on the part of the court, would effect a recovery 
 from the dog's owner, although there could be no 
 objection to a recovery, by the help of nature, from 
 the dog. 
 
 A singular dog case arose at the Eensselaer cir- 
 cuit a few years ago. The dog had jumped up at 
 and thrown down and bruised a lad in the sti'cct. 
 It was proved that the dog's master had taught 
 him to leap up and take off people's hats with his 
 teeth. The jury inferred that the animal was prac-
 
 X 
 
 THE ANIMAL KINGDOM IN COURT. 69 
 
 ticing this lesson on the boy, and recognizing no 
 reason why the master shoald set himself up as a 
 censor of the public manners, and dictate to the 
 plaintiff when to uncover, said that the plaintiff 
 might recover. 
 
 In Loomis v. Terry (17 Wend. 496), it appeared 
 that the plaintiff's son, aged 16, and a number of 
 other boys, were hunting in the woods of the de- 
 fendant, on a Sunday, where the plaintiff's son was 
 attacked by a hound, which sprang upon him, as- 
 sisted by a slut, and brought him to the ground. It 
 was shown that the slut had puppies near by, which 
 fact tended to make her cross. This, however, did 
 not produce such an effect on the court as the pre- 
 sentation of the puppies did in Les Plaideurs. It 
 appeared also that the hound had previously bitten 
 people, to the knowledge of the defendant. In 
 spite of the fact that the boy was a trespasser, and 
 that, too, on the Lord's day, and had excited the 
 maternal apprehensions of the lady dog, a judgment 
 of $15 was sustained. It is to be feared that the 
 sympathetic mind of Judge Cowen was affected by 
 the proof that the defendant, quite naturally, ''had 
 wished his dogs had eaten the boy up." His honor 
 seems to lay stress on the assumed fact that "a 
 fierce dog is kept without semblance of necessity." 
 The case does not disclose, but the natural infer- 
 ence is, that the hound was the father of the afore- 
 said j)uppies, and the spouse of the aforesaid lady 
 dog. This being so, was he not a "necessity," and 
 was he not acting in the line of his duty and of his 
 honor, within the recent cases of infringements on 
 domestic rights? Judge Cowen lived too early to
 
 70 THE ANIMAL KINGDOM IN COURT. 
 
 know the modern refinements on this subject. 1 
 must confess, my sympathies are all on the other 
 side in this particular case. If that young rascal 
 had been at Sunday-school, learning his catechism, 
 as he ought, he would, at least, neve^ have been 
 troubled by the dogmas of the canine order. 
 
 If there is any case in the books, which, more 
 than another, deserves to be printed in letters of 
 gold, it is the case of Brill v. Flagler (23 Wend. 
 354). In this righteous decision Judge Nelson laid 
 it down as the law, that the inhabitant of a dwell- 
 ing-house may lawfully kill the dog of another, 
 where such dog is in the habit of haunting his 
 house, and by barking and howling, by day and by 
 night, disturbs the peace and quiet of his family, if 
 the dog cannot be otherwise prevented from annoy- 
 ing them. It is no wonder that the author of these 
 words, so full of somniferous balm to weary watch- 
 ers, rose to a seat on the federal bench. "It would 
 be mockery," said this excellent judge, "to refer a 
 party to his remedy by action; it is far too dilatory 
 and impotent for the exigency of the case." The 
 judge speaks feelingly. I dare say the dogs at 
 Cooperstown had been nocturnally vociferous about 
 those days. As to the "action" spoken of, I sug- 
 gest that it would be an admirable exercise for some 
 of the devotees of the common-law system of plead- 
 ing, to draft a declaration in an action on the case, 
 on the facts above stated, as a precedent for the 
 young gentlemen in their offices. 
 
 On this subject of pleading, it may be observed, 
 it was once held, in Jenkins v. Turner (1 Ld. Eaym. 
 109), that in an action for keeping a boar accus-
 
 THE ANIMAL KINGDOM IN" COURT. 71 
 
 tomed to bite animalia, the animalia was suffi- 
 ciently certain after verdict. And lulielps had been 
 adjudged good after verdict (3 Lev. 336). It is 
 gratifying to learn that they are good for any thing 
 at any time. 
 
 But this most striking case of judicial nervous- 
 ness and rancor on the subject of dogs is Broivn v. 
 Carpenter (36 Vt. 638), in which the chief -justice, 
 Redfield, says: ''If any animal should be regarded 
 as the common terror of all peaceable and quiet- 
 loving citizens, it is such a dog ; " that is " a fero- 
 cious and overgrown dog," "and the owner who 
 persists in keeping such an animal, without effect- 
 ually and physically restraining him, so that he can 
 do no one harm, ought not to complain of his de- 
 struction. He ought to be grateful to escape so; for 
 he is undoubtedly liable to, and justly deserves, ex- 
 emplary punishment, under the criminal laws of 
 the State, and if one injured or liable to injury 
 chooses to right himself by abating the nuisance 
 only, he deserves to he regarded as a pullic 'bene- 
 factor.''^ 
 
 So little respect has the dog, an object of tender- 
 ness, as we have seen, in the English courts, re- 
 ceived in the American courts, that it has been held 
 an indictable offense to say of a human being that 
 he has a dogged disposition. Thus, in Gilbert v. 
 The People (1 Denio, 41), the indictment was for a 
 libel contained in a declaration in a justice's court, 
 which stated that the plaintiff " had a number of 
 sheep in the county of Columbia, and that said de- 
 fendant did, in the year 1843, if ever, bite and 
 worry fifty of plaintiff's sheep, after the said defend-
 
 72 THE ANIMAL KINGDOM IN COURT. 
 
 ant had notice that he, the defendant, was subject 
 and accustomed to biting and worrying sheep, if 
 such notice he had, and the said iDhnintiffs say, that 
 if defendant is guilty of any charge laid in plaint- 
 iffs' declaration, the said defendant ought to be 
 punished according to the custom ;;nd manner of 
 punishing sheep-biting dogs, as the plaintiffs have 
 sustained great damage by the conduct of the de- 
 fendant;" and further, ''that the said defendant 
 is reported to be fond of sheep, bucks and ewes, 
 and of wool, mutton and lambs, and that the defend- 
 ant did undertake to chase, worry and bite plaint- 
 iffs' sheep; and with his snout, teeth and jaws, did 
 bite and injure i3laintiffs' sheep, as the said defend- 
 ant is in the habit of biting sheep, by report, to 
 plaintiffs' damage, in all, fifty dollars; and if de- 
 fendant is guilty he should or ought to be hanged 
 or shot." There was a demurrer because the libel 
 was charged as occurring in a judicial proceeding. 
 But the court was not to have the wool pulled over 
 its eyes in this Avay, and held that the libel con- 
 tained matter — namely, the "reports" and "hab- 
 its " — impertinent and irrelevant to that judicial 
 proceeding, and "intended to stir up the passions 
 of the defendant, and to make him an object of 
 dark suspicion, as well as of ridicule and contempt." 
 What the possible " dark suspicion" was the court 
 does not inform us, and we can only conjecture 
 that it may have been that the defendant had an 
 appetite for the hlach sheei^ of the flock. 
 
 Although the dog has been thus harshly dealt 
 with in our courts, yet the cat seems to be the sub- 
 ject of especial favor. We are informed that Mr.
 
 THE ANIMAL KINGDOM IN COUKT. 73 
 
 Bergh, the distinguished humanitarian, evidently 
 believing in the ancient adage that ''a cat may look 
 at a king," caused a man to be sent to prison a few 
 days ago for killing a cat. The accounts of the 
 case give us no information concerning the virtues 
 of this particular cat, nor of the depravity of the 
 slayer. We can conceive of circumstances under 
 which the prisoner's conduct might be construed 
 as justifiable felicide, as, for example, when the 
 animal disturbed his slumbers by persistent and 
 inharmonious vocalization in the neighborhood of 
 his dormitory. I myself would not scruple to 
 kill a cat under such circumstances ; indeed, I 
 mean to do so unless certain cats in the vicinity of 
 my residence take a hint from this article. And 
 I defy Mr. Bergh to hurt me for it, either. I 
 have the authority of a great Jurist to protect me, 
 namely, Judge Nelson, for if one may laAvfully kill 
 a dog that disturbs his slumbers, why not a cat? 
 I have no prejudice against well-behaved, hnme- 
 keeping cats. Montaigne had a favorite cat and so 
 had Robinson Crusoe. But even the example of 
 these eminent men would hardly induce me to shut 
 a man up in jail for three months, and possibly 
 cause the starvation of a family, simply because he 
 had killed a cat. 
 
 " The little busy bee "has winged its way into 
 the dusty temple of justice. Earl v. Van Alstyne 
 (8 Barb. 630) was a case in which the plaintiff's 
 horses, traveling along the highway past the place 
 where the defendant's bees were kept, and had been 
 kept for eight or nine years, were stung by them 
 so severely that one died. It being proved that the 
 10
 
 74 THE ANIMAL KINGDOM IN COURT. 
 
 bees had never done such a thing before, the defend- 
 ant was absolved. What would happen if they 
 should do such a thing again was, of course, not 
 considered, but after all suggests a curious legal 
 inquiry, pondering which, the defendant might 
 well say with Hamlet: "To be, or not to be, that 
 is the question." If these useful little creatures 
 could have been set, some years ago, at the horses 
 on which Mr. James, the novelist, was forever 
 mounting his "two travelers," they would have 
 merited the praise of a modern Aristarchus, and 
 have inspired a neAv Watts. 
 
 In Gillett v. Mason (7 Johns. 16), it was said that 
 bees are fercB naturce, but when hived and reclaimed, 
 a qualified property may be acquired in them. But 
 this property must always remam a qualified one, 
 because they are such riches as "take to themselves 
 wings." 
 
 " Seeing the elephant " is regarded, in modern 
 times, as an expensive and undesirable business. 
 The phrase probably derives its origin from the 
 Punic wars, in which the elephants of the Cartha- 
 ginians carried terror and dismay into the Eoman 
 hosts, both man and horse being unaccustomed to 
 the sight of these animals. It is singular that the 
 reporter, in writing the syllabus of Scribner v. Kelly 
 (38 Barb. 14), did not make use of this phrase, which 
 would have expressed the gist of the narration of 
 facts. This was an action to recover damages for 
 an injury caused by the fright of the plaintiff's 
 horse at the mere sight of an elephant of the defend- 
 ant, in traveling on the highway. No negligence 
 on the part of the defendant, in the care of the
 
 THE AJSIIMAL KINGDOM IN COURT. 75 
 
 elephant, was shown, and it was held that the 
 action would not lie. " To render the defendant 
 liable," said the court, ''for the damage that ac- 
 crued, it would be necessary to show, not only 
 that such is the effect of the appearance of an ele- 
 phant upon horses in general, but, also, that the 
 defendant knew or had notice of it; for if it is 
 conceded that the elephant is of a savage and fero- 
 cious nature, it does not necessarily follow that his 
 appearance inspires horses with terror." The plaint- 
 iff's counsel ought to have had a volume of Plutarch 
 at hand to supply this defect in proof, and to have 
 cited to the court the example of Pyrrhus, who tried 
 to scare Fabricius with the sudden appearance of 
 an elephant. The court may be right in its law, 
 but it seems to me, as Thurlow said of Eldon, that 
 they gave some very bad reasons for it. For in- 
 stance: "Non constat that any other moving object 
 of equal size, and differing in appearance from such 
 as he was accustomed to see, might not have in- 
 spired him with similar terror." Now if a railroad 
 train runs over a man and kills him, is it any answer 
 to say that a horse and wagon might have served 
 him in the same way? But again: "The injury 
 which resulted from his fright is more fairly attrib- 
 utable to a lack of ordinary courage and discipline 
 in himself than to the fact that the object which 
 he saw was an elephant." Now suppose the plaint- 
 iff in Brilly. Flagler had set up that the defendant's 
 inability to sleep at night was more fairly attribut- 
 able to his constitutional nervousness than to the 
 howling of the defendant's dog, would that have 
 been deemed a good reason for making the defendant
 
 76 THE ANIMAL KINGDOM IN COURT. 
 
 pay for the dog? On the whole, it would seem that 
 this opinion, although entitled, as the decision of 
 a general term, to elephantine weight, is not char- 
 acterized by elephantine sagacity. 
 
 Bulls are frequently seen in court. I do not now 
 refer to those bulls that counsel make, but to the 
 bucolic fathers of the lierd. The former usually 
 come about because counsel have not read enough; 
 the mischiefs of the latter are often due to having 
 too much red. For instance, in Hudson v. Roberts 
 (20 L. J. Exch. 299), the plaintiff, while walking 
 along a public street, Avearing a red handkerchief, 
 was attacked and injured by the defendant's bull, 
 which was being driven along the street. The de- 
 fendant stated, after the accident, that the red 
 handkerchief was the cause of the injury, for that 
 he knew the bull would run at any thing red. He 
 also stated, on another occasion, that he knew a 
 bull would run at any thing red. Held, that his 
 knowledge of the article was definite enough to make 
 him liable in this case. Baron Alderson humanely 
 remarked: " A man must not take a lion through 
 the public streets, merely because he may not know 
 that the lion has actually devoured a man before." 
 
 An important leading case is Blackmail v. Sim- 
 raons (3 C. and P. 138), which was an action for 
 injuries sustained by the plaintiff at the horns of 
 defendant's bull. There were some circumstances 
 of mitigation for the bull's misconduct. The plaint- 
 iff was driving a cow with a stick. This gallant 
 but inconsiderate bull, excited by the spectacle of 
 the indignity offered to one of his own kine, rushed 
 at the plaintiff, who hit him with the stick. Then, 
 
 I
 
 THE ANIMAL KINGDOM IN COURT. 77 
 
 of course, the bull, as he lawfully might, ■Diolliter 
 oornua imposuit, and simply broke two of his ribs. 
 Unfortunately for the bull's owner, who, up to this 
 point, .undoubtedly had the court with him, it was 
 proved, that when he purchased the bull, he was 
 warned that he was vicious, and had answered that 
 this was no objection — he would " turn it into a 
 mead where he was annoyed by people fishing;" 
 and that he kept him insecurely hoppled. The 
 judge — not Buller, strange to say, but Best — 
 mildly characterized this conduct as "wicked," 
 and said this was no way to abate the nuisance 
 complained of. If trespassers came to hook his 
 bull-heads and "horn-pouts," still he was not jus- 
 tified in setting his bull to hook tJiein. The ver- 
 dict for the plaintifl; was sustained. 
 
 Earns have also been in court. It was held in 
 Jackson and Wife v. Smitlison (15 M. and W. 563), 
 in support of a verdict for the plaintiffs, that the 
 declaration which stated that the defendant wrong- 
 fully and injuriously kept a ram, well knowing that 
 he was prone and accustomed to attack, butt and 
 injure mankind, etc., was not defective in not stat- 
 ing that he negligently kept the ram. The negli- 
 gence is presumed. From the ramifications of 
 Oahes and Wife v. Spaulding and OaJces (1868, 7 
 x\m. Law Eeg. 551, in Vermont), the principle is 
 deduced that the owner is liable for injuries done 
 by an animal which is known to be fierce or danger- 
 ous, though it does not belong to a class fer(B 
 naturae. This action was brought to recover dam- 
 ages for an injury done to Mrs. Oakes by a ram, 
 which was jointly owned by the defendants, both of
 
 78 THE ANIMAL KINGDOM IN COURT. 
 
 whom had been for a considerable time " awai-e that 
 the ram had an unusual propensity to butt, and 
 had on several previous occasions attacked and 
 butted jjersons." Whether proof was offered that 
 this ram had butted persons behind, as well as before, 
 does not appear. The defendant Oakes, who may 
 have been related to the plaintiff, husband Oakes, 
 did not defend. Poor Spaulding was caught in a 
 dilemma, of which he was at liberty to take either 
 horn, for the defendants were held to be jointly lia- 
 ble. There was a verdict for 11,500. The case 
 does not disclose the nature of the injuries, nor 
 from what quarter this ill-bred animal assaulted 
 Mrs. Oakes, but we infer that from the force of cir- 
 cumstances, she fell "butter-side up." But was 
 she not imprudent in trusting herself in the field 
 with the ram? She ought to have remembered how 
 the walls of Jericho went down at the mere blast of 
 ram's horns, and the story of the golden fleece, and 
 measured her chances against so jjotent and reckless 
 an animal as this assault-and-battering-ram. 
 
 Last, but not least singular, in this curious list is 
 the monkey. May v. Burdett (9 A. and E. 101) 
 was an action to recover damages for an injury to 
 the plaintiff by the bite of a monkey. There was a 
 recovery. The court took it for granted that the 
 animal was feroB natures. How they could do this, 
 when the animal in question is so nearly like a hu- 
 man being, is not easy to discover. Who knows 
 but that their lordships themselves, in some former 
 state of existence had worn tails? Lord Monboddo 
 thought mankind a sort of superior ape, in whom 
 civilization had abraded and erased the caudal mem-
 
 THE ANIMAL KINGDOM IN COUET. 79 
 
 ■t 
 
 ber. It is impossible to decide that he is wrong, 
 and in some future existence, when the brutes have 
 their rights in turn, as the horses among the 
 Houhnhnms, these arrogant English judges may find 
 themselves docked, in literal earnest, and their victims 
 holding possession of the judicial bench in fee tail.* 
 Since writing the above my attention has been called 
 to an article in the London Laio Times, on " Injuries 
 from Domestic Animals," in which the writer com- 
 plains of the absurdity of the rule exempting the 
 owner of a domestic animal from liability for dam- 
 age inflicted by such animal, unless he is proved to 
 have known that the animal was of a vicious or 
 mischievous disposition. He winds up in a strain 
 suited to my purposes and views: "Not improba- 
 bly, however, we may have to wait until some of 
 our legislators, being bitten by dogs or gored by 
 bulls which had previously borne a most unim- 
 peachable character for mildness and general amia- 
 bility, find out, by experience, that the existing 
 state of the law has its inconveniences. We scarcely 
 think that the contemplation of the previous vir- 
 tues, however exemplary they may have been, of the 
 animal which has injured them, will at all con- 
 vince them that the law which enables them to es- 
 cape scot free is the perfection of reason." One in 
 this State, however, finds it difficult to understand 
 his apparent tenderness of the Legislature. That 
 which he seems to regard as a misfortune would 
 here be deemed a boon. 
 
 * Tho above was ■written before the appearance of Mr. Darwin's new 
 book, in which that learned and ingenious gentleman demonstrates 
 the correctness of these conjectures.
 
 80 NEGLIGENCE. 
 
 NEGLIGENCE. 
 
 In this busy world men seldom stop to reflect on 
 the multitude of dangers by which they are sur- 
 rounded. We walk through perils thick as grass- 
 blades. Most of these are the result of the negli- 
 gence of our fellow-men. Very few are inevitable. 
 We are accustomed to regard war as the state of 
 greatest insecurity, but peace hath her perils no less 
 profound than war. The prescriptive right of death 
 on the battlefield is but little stronger than in an 
 apothecary's shop, with a careless clerk. One may 
 have his head taken off by a cannon ball in battle, 
 but he is also liable to have it cracked by a brick 
 from a chimney. One may be rendered hors du 
 comhat by a charge of cavalry, but in turning a 
 street corner he is not secure from annihilation by 
 a runaway steed. A bayonet thrust in the abdo- 
 men is not a pleasant thing, but so is not impale- 
 ment on a cane or umbrella in a crowd. A bullet 
 in your head is decidedly confusing, but so is your 
 neighbor's vicious bull let in your front-door yard. 
 
 Man is continually striving to evade responsi- 
 bility for his passive ''inhumanity to man." The 
 cry, "Am I my brother's keeper?" is echoed after 
 six thousand years, in every suit for damages occur- 
 rmg through negligence. The law, in its funda- 
 mental maxims, recognizes our duty of care for one 
 another. It concedes the right of property only on
 
 NEGLIGENCE. 81 
 
 the condition of care toward others — sic iitere tiic 
 ut non alienum Imdas. Being thus bound to some 
 degree of consideration of the welfare of others, 
 man invents various ingenious theories to lessen the 
 degree, and so we have the doctrines of contributory 
 negligence and imputed negligence. Thus arose 
 the struggle that has been going on for years in the 
 courts of New York, to make negligence a question 
 of law. One judge in England, in a recent case, 
 doubted whether actions for negligence ought to be 
 favored, and whether a traveler, as a member of so- 
 ciety, ought not to bear his breaks and bruises 
 uncomplainingly, as part of the unavoidable ills that 
 society is heir to. My own impression is that every 
 man ought to be left to his own tastes on this point. 
 If the English judge finds in such considerations a 
 salve for his broken bones, and the wherewithal to 
 pay his surgeon, let him be indulged like any other 
 harmless maniac. A learned friend of mine, who 
 approves of capital punishment, saj'S that he would 
 advise that in capital trials, one of the inquiries 
 should be, what were the views of the deceased on 
 the subject of capital punishment, and that the 
 punishment of the criminal be adapted to the opin- 
 ions of his victim. Would not this be a good idea, 
 in case of death produced by negligence? Let the 
 judge's surviving relatives stand or fall by their 
 decedent's notions. But it is too much to expect 
 that weak human nature should rise at once to the 
 exalted plane of his lordship's philanthropy. 
 
 It must be remembered, too, that the common 
 law had a nice little dogma — actio personalis mori- 
 tur cum persona — a personal action dies with the 
 11
 
 82 NEGLIGENCE. 
 
 person. So, if through the negligence of another, 
 one was almost killed, he might recover damages; 
 but if he was quite killed, no right of action sur- 
 vived to his relatives. Dead men tell no tales, and 
 warrant no lawsuits. It is true that statutes have 
 been enacted in many communities, correcting this 
 defect; but as if to encourage murder, the right to 
 recover has been, in a majority of instances, lim- 
 ited to some specific sum, much lower than would 
 ordinarily be awarded for injuries not mortal. 
 
 The doctrine of negligence has caused a good 
 deal of oscillation in the scales of justice, and very 
 strange cases have come before the courts. Some 
 of these are not unfamiliar, but it may serve to 
 amuse a leisure moment to collect them, and refresh 
 our memories in their oddities. 
 
 Scott V. Slieplierd (2 W. Bl. 892) is the leading 
 case on this subject. The defendant threw a 
 lighted squib, or serpent, made of gunpowder, into 
 the market-house, where a large concourse of peo- 
 ple were assembled. It fell on the standing of one 
 Yates, who sold gingerbread. One Willis, to pre- 
 vent injury to himself and the wares of Yates, took 
 it up instantly and threw it across the market- 
 house. It fell upon the standing of one Ryall, who 
 sold the same sort of wares; he, in like manner and 
 with a similar intent, threw it to another part of the 
 market-house, when it struck the plaintiff in the 
 face, and bursting, put out one of his eyes. The 
 plaintiff recovered damages. The main discussion 
 was as to the form of the action. The conduct of 
 Willis and Ryall was declared to be necessary in 
 self-preservation, and for the protection of their
 
 NEGLIGENCE. 83 
 
 goods. Justice Gonld. observed that ''the defend- 
 ant may be considei'ed in the same view as if he 
 himself had personally thrown the sqnib in the 
 plaintiff's face;" and Justice Nares, apparently in- 
 nocent of an intentional pun, approved this idea and 
 quoted the maxim, ^'Qui facit per alium, facit per 
 se." Whether the same doctrine would prevail in 
 case of a libelous and inflammatory " squib," copied 
 from one newspaper into another, was not consid- 
 ered, but is an interesting question. And so the 
 report of this squib has resounded for a hundred 
 years, and if it be considered as a '' serpent," it has, 
 like its prototype in Eden, laid the foundation of a 
 great deal of strife and litigation, and its trail is yet 
 to be seen in the courts. 
 
 G^iille V. Swan (19 Johns. 381) is a famous case. 
 Mr. Guille Avas a person whose thoughts and wishes 
 carried him above the earth. He longed for some- 
 thing higher and better than worldly things. He 
 was an aeronaut. He made a voluntary ascent in 
 the vicinity of Swan's garden, and an unwilling de- 
 scent into the same. In his peril he called aloud to 
 the pursuing crowd to help him. Meanwhile he 
 was being dragged along in the balloon, and caus- 
 ing some slight damage to Mr. Swan's garden sauce. 
 The crowd, consisting of some two hundred good Sa- 
 maritans, broke through Swan's fences and threw his 
 vegetable and flowers into great disorder. Now, it 
 was lawful for Mr. Guille to ascend. It was lawful 
 for the crowd to follow, gaze, and admire, for the 
 balloonist to call on them in his extremity, and for 
 them to rush to his rescue. But Mr. Guille had to 
 pay for Swan's garden sauce. It was unquestiona-
 
 84 NEGLIGENCE. 
 
 bly very selfish and narrow-minded for Swan to in- 
 sist on indemnity, but he took a worldly view of the 
 affair. He had no interest in the sublime problem 
 of serial navigation; he had no individual friendship 
 for the aeronaut, he had no general care for the 
 crowd; all he knew was that his radishes and other 
 esculent roots had been spoiled, and he wanted his 
 pay, and he got it. So mean is human nature; but 
 we have to deal with it as we find it. 
 
 It seems rather hard that one must be answeral)le 
 for the vegetable and floral consequences of human 
 curiosity, and for the officiousness of two hundred 
 friends, when half a dozen would have answered 
 every purpose. If science has to struggle against 
 such things it is to be feared that the navigation of 
 the air will remain an unsolved problem. If garden 
 shoots are to be preferred to parachutes, man must 
 be content to crawl along the potato-and-radish- 
 bearing earth at the snail's-pace of sixty miles an 
 hour. This idea of the consequences of curiosity 
 troubles us. If this is the law, then Mr. Barnum, 
 in transporting his fat woman or Chinese giant 
 about the country, might be made to answer for the 
 safety of the bridges broken down by the crowds as- 
 sembled to gaze at those unrivaled monstrosities. 
 
 In VandenburgU v. Trvax (1 Denio, 464), it was 
 held that where the defendant, having had a quar- 
 rel with a boy in a street in a city, took up a pick- 
 ax and followed him into the store of his employer, 
 the plaintiff, whither he fled, and in endeavoring to 
 keep out of defendant's reach, the boy ran against 
 and knocked out the faucet from a cask of wine, by 
 means of which a quantity of the wine ran out and
 
 NEGLIGENCE. 85 
 
 was wasted, the defendant was liable to the plaintiff 
 for the damage. The action of the boy was reason- 
 able, for from the nature of the defendant's weapon, 
 it was evident that he intended to pick a quarrel 
 with him. The injury of the plaintiff was not the 
 necessary consequence of the defendant's act, but 
 the act was of such a nature that it might naturally 
 result in an injury to a third person. If the boy 
 ran, the wine might run, and it is axiomatic to say 
 that if Mr. Truax set in motion a pick-ax, he must 
 abide the consequences, direct and indirect. It 
 must not be su]3posed, however, that the defendant 
 would have been liable for any injuries beyond 
 those immediately connected with the occurrence. 
 If the wine had leaked through upon the premises 
 of one living under this store, for instance, he would 
 not have been answerable for that damage. Any 
 different doctrine would involve a possible train of 
 consequences similar to those in the nursery legend 
 of the old woman and her pig. 
 
 In Bush V. Brainard (1 Cowen, 78) it was de- 
 cided that an action will not lie for carelessly leav- 
 ing maple syrup in one's uninclosed wood, whereby 
 the plaintiff's cow, being suffered to run at large, 
 and having strayed there, is killed in drinking it. 
 This was based on the ground that the cow had no 
 right there. The defendant in this action, on the 
 other hand, could not have maintained an action 
 against the owner of the cow for the loss of his syrup, 
 because, as the court said, " he was guilty of gross 
 negligence in leaving his syrup where cattle run- 
 ning at large in the woods might have access to it." 
 The plaintiff's case seems to have been fatally defect-
 
 86 NEGLIGENCE. 
 
 ive in proof. There was no evidence to show that 
 it was the disposition of cows to drink maple syrup, 
 or that such indulgence was apt to be fatal, nor 
 that the defendant had actual or presumed knowl- 
 edge or notice of such disposition or result. Leav- 
 ing out of view the question of trespass, the plaint- 
 iff ought to have failed through his own weakness. 
 Cole V. Fislier (11 Mass. 136) was an action of 
 trespass, vi et armis. The '' arms " was a gun, 
 which the defendant discharged, whereby the 
 plaintiff's horse was frightened and ran away with 
 his chaise, breaking it. The case came before the 
 court on an agreed statement of facts, viz. : the de- 
 fendant, after washing out two guns, went to the 
 door of his shop, and standing there, discharged 
 one of the guns for the purpose of drying it, the 
 shop door being a rod distant from the highway. 
 The plaintiff's horse was standing harnessed in a 
 chaise on the opposite side of the highway. 
 Being frightened by the discharge, he broke the fas- 
 tening and ran away, injuring the vehicle. The 
 horse being unharnessed and put into a pasture in 
 the defendant's neighborhood, the latter discharged 
 another gun, for the like purpose of drying it. 
 Upon this statement the opinion of the court was 
 demanded. It was not shown that the defendant 
 knew of the vicinity of the horse, and consequently 
 he could not foresee that the horse would go off if 
 his gun did. The pertinence of the second firing 
 is a profound mystery, unless it may be argued that 
 it tended to discharge the defendant. Possibly it 
 was hoped that on the homoeopathic principle of 
 similia similibus curantur this last act Avould
 
 NEGLIGENCE. 8? 
 
 restore the vehicle to a sound condition. This 
 principle of physic proved effectual in the case of 
 the wise man who jumped into the briar-bush. 
 The court gave judgment for the plaintiff, and im- 
 proved the opportunity to descant upon the impro- 
 priety of discharging fire-arms, under nearly every 
 conceivable state of circumstances except those 
 agreed upon as the facts in this case. 
 
 Leliman v. City of 'BrooTclyn (29 Barb. 334) is a 
 warning to mothers of young children. There was 
 a well in one of the public streets of Brooklyn, level 
 with the grade of the sidewalk, and usually closed 
 with a wooden cover, having a square opening in 
 the center, which was also covered with a lid on 
 leathern hinges. A child four years old was found 
 dead in the well, within half an hour after his leav- 
 ing home. In this action, by the child's adminis- 
 trator, it was held that, considering the tender 
 years of the child and the nature of the accident, 
 the plaintiff was bound to show how the occurrence 
 came about, and to explain how the child came to 
 the well, and whether it was closed or not when he 
 came there. For aught that appeared, his mother 
 may have thrown him there, or he may have rashly 
 importunate gone to his death, like Saxe's Briefless 
 Barrister, who 
 
 " espied a deep hole in the ground, 
 
 And sighed to himself, it is well." 
 
 Consequently the recovery was held not main- 
 tainable. Whether the truth lay at the bottom of 
 that particular well, we have no information, for 
 this is the last of the case in the books, and we are 
 in the dark whether Lehman brought appeal, in-
 
 88 NEGLIGENCE. 
 
 voked the aid of the court in a new trial, or was 
 squeezed dry on the first. The chagrin of the 
 plaintiff's attorney must have been materially miti- 
 gated by Judge Brown's remarking, in the opinion- 
 *'This action was most indifferently and ineflB- 
 ciently tried, for the examinations failed to bring 
 out the facts upon which its determination must 
 ultimately depend." 
 
 Castles V. Diiryea (32 Barb. 480) is a singular 
 case. The famous Seventh regiment New York 
 militia, in July, 1855, under official orders, were 
 encamped at Kingston, the defendant being in com- 
 mand as colonel. The plaintiff visited the camp 
 ground with her infant child, and was sitting with 
 other spectators at a place appointed for them by 
 the officers of the regiment. During the evolu- 
 tions of the regiment the defendant gave the com- 
 mand to fire, the regiment then facing the specta- 
 tors, about three hundred and fifty feet distant, the 
 colonel being eighty paces in front of the regiment. 
 It was supposed that the guns were loaded only 
 with blank cartridges, but a musket ball struck the 
 plaintiff, permanently crippling her arm, and killed 
 the child. It was proved that earlier in the day of 
 this occurrence, the company from which the fatal 
 ball must have proceeded, had been engaged in tar- 
 get shooting with ball cartridge; some of the guns 
 were not discharged, although the caps exploded. 
 In pursuance of orders, these guns were examined 
 and supposed to be unloaded. There was a general 
 order that each captain should cause an inspection 
 of arms thirty minutes before going into line, to 
 see that they were not loaded. The court left the
 
 NEGLIGEXCE. 89 
 
 case to the jury, who found for the phiintiff. The 
 court charged the jury that the plaintiff could not 
 recover unless she proved negligence on the part of 
 the defendant; that no action could be maintained 
 against him for an act done by him in the execu- 
 tion of his office, and within the scope of his author- 
 ity, if done with all reasonable care and caution; 
 nor was he responsible for the negligence of those 
 under his command, unless he gave an improper 
 order, or neglected to give a proper one, or neg- 
 lected some prudent and necessary precaution. The 
 questions of fact not coming up for review on the 
 appeal, we are left to conjecture to discover the 
 ground of the recovery, but it probably was the fir- 
 ing in the direction of the spectators. This was 
 rather hard measure for the gallant colonel, who had 
 boldly exposed himself to the same or even greater 
 pei'il. Probably he had witnessed the target prac- 
 tice that morning, and concluded that the danger 
 of being hit was trifling. Perhaps, recollecting the 
 man in the old Greek story, who, seeing an un- 
 skillful archer shooting at a mark, placed himself in 
 front of the target as the only place of safety, he 
 considered himself and the spectators in the safest 
 positiou. If this be so, his contempt for the skill 
 of his command cost him $1,500. Next time he 
 will probably order them to fire in the air, having 
 previously harvested all the small boys from the 
 neighboring trees. The damages were, perhaps, 
 mitigated by the proof that the regiment had hu- 
 manely paid the doctors, and erected a monument 
 to the child. The action was for the injury to the 
 mother alone. 
 12
 
 90 NEGLIGENCE. 
 
 Ryan v. The New York Central Railroad Com- 
 paiiy (35 N. Y. 210) is a novel and interesting case. 
 The defendants, through the negligent management 
 of one of their engines, set fire to one of their wood- 
 sheds. The flames communicated to and consumed 
 the plaintiff's house, 130 feet distant. The plaint- 
 iff was nonsuited and the court of appeals affirmed 
 the judgment, on the ground that the damages were 
 too remote, and not the necessary and natural re- 
 sult of the negligence. The cases of the squib, the 
 balloon and the wine cask were distinguished from 
 this by the feature of intention which entered into 
 them. But after giving this excellent and unan- 
 swerable reason for their judgment, the court pro- 
 ceed to strengthen their position by assigning an- 
 other, entirely fallacious and ineffectual; they say 
 the plaintiff ought not to recover, because '' no such 
 action has ever been sustained in the courts of this 
 country, although the occasion for it has been fre- 
 quent and pressing." By "sustained" the judge 
 means "prosecuted." He then instances the great 
 fire in Harper's publishing establishment, which 
 arose from negligence, and says: " Yet we have no 
 report in the books and no tradition of any action 
 brought against them to recover such damages." 
 He also quotes Littleton's rule, "what never was, 
 never ought to be," which is about as reliable as 
 "whatever is, is right." Now it seems a weak 
 answer to a claim of right, that the claim is novel. 
 In the class of cases under consideration, j)arties 
 have generally had no inducement to bring their 
 action, because they have been insured. And if 
 they were not, the very wealth which would enable
 
 NEGLIGENCE. 91 
 
 the negligent party to respond in damages wonld 
 deter the injured party from entering iijDon a long 
 and expensive litigation. It is notorious that no 
 judgment can be collected of a railroad company 
 except at the very end of the law's rope. 
 
 Suppose Col. Duryea had set up in answer to 
 Mrs. Castles that her claim was insupportable, be- 
 cause, although such occurrences must have taken 
 place at musters before, yet people had suffered 
 their wounds silently like good citizens, and said 
 nothing about them, and so ought she. Would 
 that have been an answer? The learned and accom- 
 plished judge who writes in this case would not 
 have thought so. Chief Justice Shaw once conde- 
 scended to use the same reason, in a case where he 
 had another reason that was sufficient — A7ithony v. 
 Slaid (11 Mete. 290). The action concerned a pau- 
 per, and perhaps the judge thought a poor reason 
 befitted such a case. But one good reason is better 
 than a good one and a poor one, in any case. Judge 
 Cowen once nonsuited a plaintiff for a reason that 
 occurred to his mind, and not suggested by coun- 
 sel. "And then, your honor," said the defendant's 
 counsel, rising, " there is another reason." " What 
 do you want of another?" interrupted the great 
 judge, " isn't one good reason enough?" 
 
 It has been repeatedly held, that if one sets man- 
 traps on his own land, he is liable for injuries aris- 
 ing therefrom, even to trespassers, unless ample 
 notice has been given of the existence of the traps. 
 But this rule does not apply as between the proprie- 
 tor of a theater and an actor in his employ. So 
 held in Seymour v. Maddox (16 Q. B. 326), which
 
 92 NEGLIGENCE. 
 
 was the case of an actress, who, in passing off the 
 stage, fell through an open trap door and was in- 
 jured. The court said the proprietor was under no 
 obligation to guard and light such places, and made 
 light of the plaintiff's injuries, remarking: ''The 
 servant is not bound to enter the master's service; 
 but if he does and finds things in a certain state, he 
 must take the consequences, if any, that may occur, 
 owing to such a state of things." Now, would not 
 the manager's liability in such a case depend, by 
 this course of reasoning, on whether the trap was 
 open or shut at the time the engagement was formed ? 
 If the actress hired out with the trap and her eyes 
 open, of course she ran her own risks of herself and 
 her engagement falling through together; but if it 
 were then shut, had she not a right to presume that 
 it would continue to be closed? How else could she 
 be presumed to have " found things in a certain 
 state?" 
 
 But it makes a difference, it seems, whether one 
 is hurt in going down or coming up. Thus, in 
 Brijdon v. Steivart (2 Macq. H. L. 30), it was held, 
 that where a workman in the mine of the defendant 
 was killed while coming up, by a stone falling upon 
 him, through the carelessness of the defendant, the 
 defendant was liable in an action by the widow, 
 although the deceased was coming up on a strike, 
 and with the intention of quitting work, unless his 
 demands were complied with. The House of Lords 
 said that the defendant, having let the deceased 
 down, was bound to bring him up in safety. So in 
 the case of the actress — if, in the character of La 
 Comare, in the opera of Crispino, she had safely
 
 KEGLIGENCE. 93 
 
 descended into the well, but, owing to the manager's 
 want of care, had sufEered injury in her ethereal per- 
 son in coming up again, an action would have been 
 maintainable. And if the GJiost in Hamlet, after 
 having comfortably rendered up himself to sulphur- 
 ous and tormenting flames in the first act, should 
 experience, through the manager's negligence, 
 while coming up to prod Hamlet in the third act, 
 the correctness of Virgil's remark, Facilis decensus 
 Averni, sed revocare gradum, etc., would not the 
 manager be bound to make a sound man of the 
 shattered ghost? 
 
 But though it makes a difference whether one is 
 hurt in coming up or going down, it makes no dif- 
 ference, it seems, whether one is hurt in going for- 
 ward or backward. Thus in Milliinan v. Neio York 
 Ceiitral, etc., Railroad Co. (11 N. Y. Sup. Ct. Eep. 
 409), it was held that where a passenger was about 
 to alight from the defendant's car, which had been 
 stopped for the purpose, but before he had time to 
 alight the train was suddenly and violently started 
 in a backward direction, prostrating and injuring 
 him, he could maintain an action as well as if the 
 train had been started in a forward direction. 
 
 During the prevalence of human bondage in this 
 country, courts were nmch more aj)t to regard the 
 "rights" of the master in his bi-furcated property, 
 than the wrongs of the slave. So tender was the 
 law of the claims of the slave owner, that they were 
 even preferred, in South Carolina, to those of a 
 whisky- vendor. In Berkley v. Harrison (1 Strobh. 
 525), a shopkeeper, in violation of the statute on 
 that subject, sold ardent spirits, to wit: whisky, to
 
 94 NEGLIGENCE. 
 
 the plaintiff's slave, by means whereof the slave be- 
 came intoxicated, lay out all night, and died. The 
 court, in giving judgment for the plaintiff, said 
 "the drinking and intoxication of the slave were 
 the natural and probable consequences of selling 
 liquor to him; the lying out all night was the im- 
 mediate effects of the intoxication; and the two 
 produced death." One cannot avoid admiring the 
 superior humanity and wisdom of the South Caroli- 
 nian laws, which gave the master the monopoly of 
 drunkenness. In Sparta a father would make his 
 slaves drunk as a warning spectacle to his sons, but 
 I suppose in South Carolina the white furnished the 
 warning and the black derived the lesson. Again, 
 in Wright v. Gray (3 Bay, 464), the defendant, be- 
 ing concerned in a horse race, persuaded a negro 
 boy belonging to the plaintiff, without the master's 
 permission, to ride the defendant's horse, which, 
 during the race, threw the boy against a tree and 
 killed him. A verdict for the plaintiff was sus- 
 tained on appeal, on the ground that one who oflQ- 
 ciously interferes with another's proiDerty, without 
 his permission, is liable for all the consequences, 
 whether intentional or not. If the horse had bolted 
 into a free State with the boy, an interesting ques- 
 tion might have arisen whether the defendant 
 would have been liable for the consequent loss of 
 the boy. In Priester v. Angley (5 Eich. Law, 44), 
 the defendant permitted his infant son to take a 
 gun to drive slaves from the defendant's cane patch, 
 but cautioned him to fire so as not to hit any one. 
 The son fired and scared one darkey so that he was 
 of no more use to his master, except for his hide
 
 NEGLIGENCE. 95 
 
 and tallow. There was evidence that the son did 
 not intend to take the negro's life. The defendant 
 was held responsible for the value of the "■'critter." 
 
 If it were not for the following decision and one 
 or two others similar to it, a new maxim might be 
 introduced in the law — let the lender beware. 
 The doctrine to which Ave refer is established in 
 Shields v. Edinburgh, etc., R. Co. (Hay, 254). The 
 plaintiff was injured in coiisequence of being 
 knocked down by a van belonging to the defend- 
 ants, and which was lent by them to A., Avho at- 
 tached his own horse to it, and provided a driver. 
 Held, that as the horse was not the property, and 
 strictly speaking, the driver was not the servant, of 
 the defendants, but of A., the defendants were 
 not liable. If such an action had succeeded it 
 should have been followed by a decree making the 
 wagon a deodand. But those who lend guns or 
 horses must be careful not to be present Avhen they 
 kick or do harm. In Bishop v. Ely (9 Johns, 294), 
 where A. lent a wagon to B. and C, who each fur- 
 nished a horse, and then, at their invitation, A. 
 rode with them, B. driving, it was held that all 
 three were jointly liable for the negligence of B. in 
 driving too fast. 
 
 As the courts have the matter in their own hands, 
 we are not surprised to learn, that in regard to neg- 
 ligence of attorneys and counselors, the rule is that 
 they are liable only for clear and material negli- 
 gence and evident incompetency. And after all, 
 this is not unreasonable. It is so difficult to find 
 out what the law is on any given point, or, having 
 ascertained what it is, to conjecture what it may be
 
 96 NEGLIGENCE. 
 
 at the end of any particular suit, that any other 
 rule would be a hardship. Therefore we rely on 
 the golden words of the court in Montriou v. Jeffries 
 (3 Carr. and P. 113), "No attorney is bound to 
 know all the law. God forbid that it should be im- 
 agined that an attorney, or a counsel, or even a 
 judge, is bound to know all the law." But this 
 branch of the subject is of little importance. Few 
 lawyers are pecuniarily able to answer for their neg- 
 ligence, and to sue one would necessarily involve 
 the patronage of another. It is better to "bear 
 those ills we have, than fly to others that we know 
 not of," especially when they may include "the 
 law's delay."
 
 PLEADIXa BEFORE THE CODE. 97 
 
 PLEADING BEFORE THE CODE.=^ 
 
 " I think the Code contains, as I best recollect at 
 this moment, only ono thing which can be called 
 new in principle, and this is an attempt at an abso- 
 lute impossibility in prescribing the rule of plead- 
 ing. It declares in substance and effect that you 
 shall not plead, as in the old system, the conclusions 
 in law or in reason from the facts of the case, and 
 at the same time it prohibits you from stating or 
 detailing the evidence merely on which you rely. 
 You are required to state the "facts" which that 
 evidence conduces to prove. Here, under the name 
 of "facts," we find some things require to be stated 
 which are neither in the vulgar sense of the word 
 the mere fact, or transaction, or event, which did 
 occur and can be proven by direct evidence, and are 
 not the general, rational or legal conclusions from 
 such fact, transaction or event. 
 
 "Now, according to my conception, it requires 
 somebody much more wise and more subtle than 
 
 * "Pleadings," in a legal sense, are not the speeches of counsel in 
 court, but the written allegations of the parties, plaintiff and defend- 
 ant, stating the cause of action on the one hand, and the defense on 
 the other, and forming the " issue " to be tried. A " demurrer " is a 
 pleading interposed in answer to another pleading, and admitting the 
 truth of the allegations in the pleading demurred to, but insisting 
 that those aUegations form no cause of action or defense, as the case 
 may be. The New York Code is a body of statutes enacted in 1848, 
 regulating the practice of our couvts, and effecting many radical 
 changes. 
 
 to
 
 98 PLEADING BEFORE THE CODE. 
 
 myself, or any special pleader I have ever been ac- 
 quainted with, to define or find out what it is that 
 should be stated in a regular pleading drawn in 
 compliance with this requisite of the code. I am 
 not aware that any one has ever attempted to do it. 
 The common practice in this State is to tell your 
 story precisely as your client tells it to you, just as 
 any old woman in trouble for the first time would 
 narrate her grievances, and to annex by way of 
 schedules, respectively marked A, B, C, etc., copies 
 of any papers or documents that you may imagine 
 would help your case. This is most emphatically a 
 fair description of all the pleadings Avhich come 
 from the office of the chief codifier himself. A de- 
 murrer to any pleading under the code is a very dan- 
 gerous step, because it is utterly impossible for the 
 keenest investigator to determine in most cases 
 what any other reader than himself will under- 
 stand to be the import of the pleading if it be de- 
 murred to. 
 
 " You may well imagine under these circum- 
 stances, that except in the very commonest and 
 very simplest of cases, there are no precedents which 
 would be of use to one beginning to draw pleadings 
 under the code. Its idea seems to be that every 
 vulgar ignoramus, upon reading them, will, from 
 their conformity to his own helter-skelter manner 
 of thinking and writing, think them quite sensible 
 and intelligible, and that a person of opposite char- 
 acter and habits shall always be unable to compre- 
 hend what they mean, and consequently be forced 
 to conclude that he must suspend judgment on 
 their merits until the trial, and that if the parties
 
 PLEADING BEFORE THE CODE. 99 
 
 then make out a case or a defense, the pleadings 
 may tlien and there, or afterward, be amended, as 
 occasion may require. 
 
 *'It is truly laughable to one conversant with 
 both systems to see the blunders into which lawyers 
 of great ability, who have come to the bar Avithin 
 the past ten or fifteen years, sometimes fall in fram- 
 ing a declaration, plea, or subsequent pleading at 
 common law in the circuit court of the United 
 States." — [Letter of Hon. C/ias. 0' Conor. 
 
 I had supposed, until I saw the above, that the old 
 rams of the law were done with butting at the code. 
 One very able and conscientious judge went un- 
 timely to his grave with spite at the code, which he 
 used to vent in his opinions, until it was evident 
 that he was a monomaniac on the subject. But 
 this was many years ago, and since then the main 
 features of the code have been copied in several 
 other States, and if there is any feature which has 
 met with more general api^roval than another, it is 
 that which Mr. O'Conor has selected for animad- 
 version above. From some other parts of his letter, 
 from which the above is quoted, I strongly suspect 
 that he has at some time been unfortunate in de- 
 murring to some of "the pleadings which came 
 from the oflBce of the chief codifier himself." To 
 my mind the highest praise Avhich can be given to 
 the code is contained in the words which he himself 
 italicises. Can any one explain why the time of 
 suitors, courts and community shall be consumed in 
 contests about forms and modes of expression, which, 
 after they are decided, leave the parties just where 
 they started years before? Men are too busy and
 
 100 PLEADING BEFORE THE CODE. 
 
 too much in earnest in the nineteenth century for 
 any such fooling. It was well enough in those hal- 
 cyon, respectable and conservative days, a genera- 
 tion ago, when Mr. O'Conor and a few other emi- 
 nent gentlemen monopolized the practice of the 
 law, because pleading was so precarious and diffi- 
 cult. Justice was a jealous god, and was deaf to 
 the entreaties of her suitors, unless they prayed ac- 
 cording to established forms. It was no wonder 
 that Mr. O'Conor, et id omne genus, sigh over the 
 departure of the days when justice depended on 
 pleading more than proofs, and they Avere the high 
 priests who alone knew how to put up the prayers. 
 But, if I remember rightly, demurring was always 
 "a dangerous step." Woe be to the priest who did 
 not pray according to rule; but still greater woe to 
 the other priest, who objected that the prayer was 
 not in the proper form, if it turned out that it was! 
 And it was a matter of delicacy to determine how 
 to wind up the prayer. The great British advocate, 
 Mingay, in speaking for the defendant who was 
 sued for the price of keeping a horse, and Avho de- 
 fended on the ground that the fodder was of poor 
 quality, said to the jury: "Gentlemen, the oats 
 and hay were unfit to eat, and naturally the horse 
 demurred." "He should have gone to the coun- 
 try," responded his antagonist, Erskine. 
 
 If any thing could justify the vulgar idea that 
 law is a lie, and all lawyers are liars, the common- 
 law system of pleading would do it. It was a grand 
 scheme of lies. The science was monopolized by a 
 few adroit word-spinners. The most skillful pleader 
 was he who most deceitfully and ingeniously con- 
 
 1
 
 PLEADING BEFORE THE CODE. 101 
 
 cealed from his adversary, until the moment of 
 trial, all suggestions of the real nature of the action. 
 If the cause of action was a promissory note, he 
 charged that the defendant was indebted to him for 
 money lent and advanced, for money had and re- 
 ceived, for money paid, laid out and expended, for 
 goods, wares and merchandise sold and delivered, 
 for work, labor and services done, performed and 
 rendered, and every thing else under the sun except 
 a promissory note. And so the wretched defend- 
 ant remained in dense ignorance of what was to pay 
 until he came into court. By-and-bye this state of 
 things began to strike legislators and jurists as in- 
 convenient, not to say unjust, and so the plaintiff 
 was ordered to append to his declaration, in which 
 he told all the aforesaid lies, a notice stating the 
 truth, to wit: that the cause of action was a prom- 
 issory note; or rather, that on the trial he would 
 offer in evidence the note, the real cause of action, 
 to give eflScacy to the common counts, which con- 
 stituted the lies. Common sense suggested the in- 
 quiry, if the notice is necessary and sufficient, what 
 is the use of the lies? But we had told the lies so 
 long and so often that we loved them and hated to 
 give them up. They were part of the great science 
 of pleading, and to be able to tell them in the right 
 form was a feather in one's cap. 
 
 A beautiful outgrowth of this system was the doc- 
 trine of variance, which made fatal the slightest 
 variation between the pleadings and the proof. 
 Brown sued Jones in slander for calling him a 
 " perjured, lying thief." On the trial it turned out 
 that the words actually used were " perjured scoun-
 
 102 PLEADING BEFORE THE CODE. 
 
 drel and horse thief." This was a variance, and 
 there Avas only one privilege left to Brown, and 
 that was to pay Jones' costs and get out of court. 
 The doctrine of amendment, about which Mr. 
 O'Conor growls, was no part of our consistent sys- 
 tem of lying. 
 
 Another pleasant feature of the old system of 
 pleading was its impartiality. The plaintiff had no 
 monopoly of lying. The defendant might lie, too. 
 He might set up as many defenses as the ingenuity 
 of counsel could invent, without regard to their 
 consistency, and he sought a recompense for his 
 ignorance of what the plaintiff was at, by keeping 
 him just as ignorant of the real nature of the de- 
 fense. The object of pleadings, it will be borne in 
 mind, was ostensibly all this time to inform the 
 court of the issue to be tried. 
 
 When we came into a court of conscience, of 
 course, one would suj)pose that all this was reme- 
 died. That was the principal reason for having 
 such a court at all — to afford a refuge in certain 
 cases from the court where lying held sway. But 
 there must be some recompense for being compelled 
 to state the truth, theoretically, and what was it? 
 Why, lawyers were encouraged to make the plead- 
 ings as long as possible, by receiving pay in propor- 
 tion to their length. And so expert did the profes- 
 sion become in the pleasant pursuit of money, that 
 the pleadings in courts of chancery, or conscience, 
 by reason of their prolixity, grew to answer nearly 
 the same benign purpose as those in courts of law, 
 or lying — L e. , of not furnishing any hint of the 
 real issue. 
 
 11
 
 PLEADING BEFORE THE CODE. 103 
 
 The syllabus of Bloss v. ToUy (2 Pick. 320), de- 
 cided in 1 824, is as follows : 
 
 "Simply to burn one's own store is not unlawful, 
 and the words, ' he burnt his own store,' or ' there 
 is no doubt in my mind that h6 burnt his own store; 
 he would not have got his goods insured if he had 
 not meant to burn it; ' or a general allegation that 
 the defendant charged the plaintiff with having 
 willfully and maliciously burnt his own store, will 
 not sustain an action for slander without a collo- 
 quium or averment setting forth such circumstan- 
 ces as would render such burning unlawful; and 
 that the words were spoken of and concerning such 
 circumstances; and the want of such colloquium or 
 averment will not be cured by an inuendo." 
 
 The report states that the defendant's counsel 
 were Mills, Whiting and Dwight. After careful and 
 extended inquiries among men from Berkshire 
 county, we have learned that these were very dis- 
 tinguished men in their day, and we have no doubt 
 that posterity, or at least that portion of it which 
 shall peruse the said report, will hold them in due 
 reverence. The report goes on to state that the dis- 
 tinguished gentlemen above mentioned, at the Sep- 
 tember term, 1823, moved in arrest of the judgment 
 obtained by the plaintiff, and that "Bryant, for 
 the plaintiff, furnished the court in vacation with a 
 written argument," etc. Now, this Bryant, we 
 fear, had not a legal mind, and instead of trying to 
 suppy his natural deficiencies by studying the grand 
 principles of common-law pleadings, he was much 
 addicted to poetry. Even when in college, at the 
 age of eighteen, he had written and uttered some
 
 104 PLEADING BEFORE THE CODE. 
 
 verses which he called Thanatopsis, of which some 
 of our readers may have heard. And even after he 
 had been some time in the profession, he allowed 
 himself to be instigated by this unhallowed passion 
 for poetry to write: • 
 
 " Though forced to drudge for the dregs of men, 
 And scrawl strange words with the barbarous pen. 
 And mingle among the jostling crowd. 
 Where the sons of strife are subtle and loud." 
 
 The consequence of all this was, that his said client, 
 Bloss, lost his case through his attorney's inca- 
 pacity to draw a common-law declaration, and that 
 attorney was condemned to hear from the wise and 
 mild Chief Justice Parker such words as these: " It 
 is with great regret, and not without much labor 
 and research to avoid this result, that we are obliged 
 to arrest the judgment in this case for want of a 
 sufficient count to support the verdict. * * * 
 If the plaintiff has sustained a serious injury, an- 
 other action may give him indemnity. In a matter 
 of technical law, the rule is of more consequence 
 than the reason of it; and however we may lament 
 the lost labor and expense of the suit, we find our- 
 selves wholly unable to prevent it," No wonder 
 the attorney was ashamed to face the court with an 
 oral argument, but sent it in that underhand man- 
 ner, " in vacation," and in writing. How that un- 
 fortunate young man must have felt, and how he 
 must feel now, at the age of seventy-eight, when he 
 reflects, as he must inevitably reflect, that, instead 
 of occupying the proud eminence of a man who 
 knew how to draw a common-law declaration — of 
 such men as Mills, Whiting and — (what's-his-
 
 PLEADING BEFORE THE CODE. 105 
 
 name?) — Dwight, he must go down to posterity as 
 William Cullen Bryant — nothing but the greatest 
 of American poets, and tenant of the highest niche 
 in American general letters. We would say naught 
 to render the old man's last years uneasy, but we 
 would simply ask, what recompense can it be for 
 these lost opportunities that he can read his name 
 in the biographical dictionaries, and count his for- 
 eign honorary titles by the dozen? We dare say, if 
 he could reflect that he got that declaration right, 
 he would gladly give up all the transitory honor of 
 having made the best translation of those foolish 
 old ballads of Homer. Our profession indeed owe 
 Berkshire county a grudge, for not content with 
 having produced this sneerer at our sublime call- 
 ing, this reprehensible locality* has given birth 
 to another and more dangerous person, who, 
 being himself a lawyer, has had the audacity, at 
 one fell swoop, to abolish those elevating, those 
 subtle, those humanizing, those refining, those 
 highly necessary principles of common-law pleading 
 on which our institutions were founded, and which 
 the dreaming Bryant hadn't the intellect to com- 
 prehend, and to introduce in their place a system 
 under which it can no longer be said, in the golden 
 words of Chief Justice Parker, " the rule is of more 
 consequence than the reason of it." Surely the 
 ways of Providence are mysterious. Bryant, thou 
 art avenged! 
 
 Such, in brief, and as I believe without exaggera- 
 tion, was the Paradise from which Mr. Field and 
 
 * Berkshire county, Massachusetts, is the birthplace of David Dudley 
 Field, the chief codifler of New York. 
 
 14
 
 106 PLEADING BEFORE THE CODE. 
 
 those other mistaken reformers so ruthlessly ejected 
 Mr. O'Conor, Judge Barculo, and the rest of the 
 proficients in the difficult science of pleading. And 
 to what a barren and dismal waste have we been 
 turned out! Just see: the complaint must contain 
 " a plain and concise statement of the facts, con- 
 stituting a cause of action, without unnecessary 
 repetition." The answer, in addition to denials, 
 may set up counter-claims "in ordinary and concise 
 language, without repetition." The plaintiff may 
 compel a sworn answer, by yerifying the complaint. 
 In considering pleadings for the purpose of deter- 
 mining their effect, they shall "be liberally con- 
 strued, with a view of substantial justice between 
 the parties." If pleadings "are so indefinite or 
 uncertain that the precise nature of the charge or 
 defense is not apparent, the court may require them 
 to be made definite or certain by amendment." No 
 variance between pleadings and proof is material, 
 "unless it actually have misled the adverse party 
 to his prejudice; " and even then "the court may 
 order the pleading to be amended, upon such terms 
 as shall be just." The party may amend his own 
 pleading under certain circumstances and in cer- 
 tain particulars, as a matter of course, and the 
 court may always, on motion, amend the pleading 
 " in furtherance of justice" and on proper terms. 
 And finally, "the court shall, in every stage of an 
 action, disregard any error or defect in the plead- 
 ings or proceedings, which shall not affect the sub- 
 stantial rights of the adverse party." 
 
 Now, of course, the intricacy of such a system 
 must be very embarrassing to such simple and in-
 
 PLEADING BEFORE THE CODE. 107 
 
 experienced souls as Mr. O'Conor, trained to the 
 simplicity and luminousness and intelligibility of 
 pleadings under the old system. No doubt he 
 misses the pleasant excitement and suspense, which, 
 under the ancient rule, pervaded the mind of the 
 practitioner, until he had steered safely past all the 
 troublesome rocks which beset the telling of his 
 client's story, and the conforming the proof to it. 
 But he is too modest in conceiving that " it requires 
 somebody much more wise or more subtle than " 
 himself to learu to draw a pleading in compliance 
 with the rules of the code. 
 
 But seriously, it is to my mind one of the best 
 features of the code that, "except in the very com- 
 monest and very simplest of cases, there are no pre- 
 cedents which would be of use to one beginning to 
 draw pleadings " under it. Instead of precedents, 
 it is truth that is required under the code. A form 
 that fits one case must necessarily be false when ap- 
 plied to most others. '^ Circumstances alter cases," 
 and a concise statement of the facts in each case 
 will be more promotive of the development of truth 
 than a Procrustean precedent for all cases. We 
 really hope that Mr. O'Conor will be more successful 
 in his search for precedents than that lawyer and in- 
 veterate wag, who rushed into an attorney's office 
 during the sitting of the circuit, apparently very 
 much out of breath, and asked his friend if he could 
 lend him "a blank form of speech for plaintiff's at- 
 torney in an action of assault and battery, where the 
 defendant had kicked the plaintiff on the dock." 
 
 In conclusion, the code seems likely to live and 
 thrive. The " conflict in opinion " as to its merits
 
 108 
 
 PLEADING BEFORE THE CODE, 
 
 is confined to the imagination of Mr. O'Conor, in 
 my opinion, and those judges who have "commit- 
 ted themselves "to "a lack of respect for its design, 
 execution and effect," must belong to that class, of 
 one of whom Sam. Weller said that " he commits 
 himself twice as often as he commits any one else." 
 They have descended from the bench never to re- 
 turn, and all the people say amen.
 
 PLEADING UNDER THE CODE. 109 
 
 PLEADING UNDER THE CODE. 
 
 The pretext for this article will be found m sec- 
 tion 142 of the New York Code of Procedure, 
 which enacts that the complaint shall contain a 
 plain and concise statement of the facts constitut- 
 ing the cause of action, without unnecessary repeti- 
 tion. 
 
 One peculiarity of the common-law rule of plead- 
 ing, claimed by its adherents to be a virtue, was its 
 uniformity. To be sure, its uniformity reminds 
 one of the man who said his wife had a remarkably 
 even temper — always cross. For each kind of ac- 
 tion there was a certain prescribed lie, or, rather, a 
 class of prescribed lies, and all a party had to do to 
 interj)ret any pleading was to recall the form of lie, 
 or class of lies, prescribed for the particular case, 
 and guess at the truth. For instance, to give an 
 idea of the absurdity, let us suppose that the cause 
 of action is a promissory note, and that the rule of 
 pleading should dictate that the declaration in such 
 cases should count upon an assault and battery; it 
 is perfectly simple, one has only to remember that 
 assault and battery means promissory note, and the 
 thing is done. It was something like the science of 
 mnemonics, by which all one had to do to remem- 
 ber any particular fact, or number of facts, was to 
 remember a certain other fact, or number of facts,
 
 110 PLEADING UNDER THE CODE. 
 
 haying no apparent connection with the principal 
 fact, and consequently, a great deal more difficult 
 to be remembered. It was perfectly surprising how 
 many names or dates one could be taught to remem- 
 ber by having memory enough to remember a cor- 
 responding number of things, which might suggest 
 the former. Now, they say the code has abrogated 
 this uniform and convenient method of getting at 
 the issue, and substituted a very uncertain and in- 
 definite rule, to wit: that the complaint shall state 
 the facts constituting the cause of action. No 
 two cases are alike, say they, and how is one to 
 know what anybody else would call the facts? To 
 those who were educated under the old practice 
 this was at first quite troublesome. They were so 
 accustomed to lying, under the old system, that 
 they found it difficult to state the facts under the 
 new. They yearned for the old lies, labor-saving, 
 even if deceptive. One trouble complained of un- 
 der the new rule is said to consist in drawing the 
 line properly between the statement of the facts, 
 and the statement of the evidence tending to estab- 
 lish those facts, or in distinguishing between a 
 statement of facts and the statement of a legal con- 
 clusion. This is a stumbling block not only to the 
 admirers of the old school, but to many who prefer 
 the new state of things, and have scarcely acquired 
 a reason for the faith that is in them. 
 
 It must be admitted that there are some cases of 
 difficulty under this theory of pleading, but they 
 are very few. Generally, the rule is easy of appli- 
 cation. So easy is it, in a great majority of instan- 
 ces, that it is really laughable to see how many intelli-
 
 PLEADIJSTG UNDER THE CODE. Ill 
 
 gent men go astray from it. Thus, although it is 
 of course competent to show, as part of the resgestcD, 
 that, during the commission of an assault and bat- 
 tery, the defendant used violent, threatening and 
 profane language, yet it is hardly necessary or 
 proper to allege it in the complaint, as was once 
 done in a case within my knowledge. " A lick with 
 the rough side of the tongue " is not a part of the 
 assault and battery for which damages will be 
 awarded. 
 
 As an example of an extraordinary statement of 
 facts in the complaint, take the following: The ac- 
 tion was brought by a sister, to obtain a decree set- 
 ting aside her deceased brother's marriagie, on the 
 ground that he was a lunatic, and under the charge 
 of a committee, at the time he was married. The 
 complaint charged the facts of the marriage as fol- 
 lows: "One P. Q., who is a lawyer by profession, 
 and a first cousin of A. B." — the lunatic — "and 
 at the time, possessed of great power of control and 
 influence over the said A. B., from improper de- 
 signs him thereunto moving, ojDerating on the ad- 
 vantage of his said power, control and influence 
 over the said A. B., shortly before, and in close 
 connection with, the time of said marriage, took, 
 carried and accompanied the said A. B., in and 
 with a douhle-liorse conveyance, belonging to the fa- 
 ther of the said P. Q., to aforesaid, and to 
 
 the residence of one C. D., a sister of the said P. 
 Q., and who kept a boarding-house there at the 
 time, which was at a point distant about seven 
 miles from the residence of the said A. B., in the 
 town of , aforesaid, the said defendant " — the
 
 112 PLEADIXG L'XDER THE CODE, 
 
 widow — "then residing at her father's house, ou 
 
 street, in the city of , to which house, 
 
 soon after their arrival at , as aforesaid, the 
 
 said P. Q., accompanied by the said A. B., went 
 after the said defendant, and brought her to the 
 boarding-house of the said C. D., at , afore- 
 said, where the marriage service hereinbefore men- 
 tioned was performed by a man reputed to be a 
 Methodist minister" — there was some method in 
 A. B.'s madness, it seems — " as this plaintiff is in- 
 formed and believes, named X. Y., but whose loca- 
 tion now, or, if living or dead, is entirely unknown 
 to this plaintiff." (The law does not require im- 
 possibilities, and consequently would not demand 
 keeping track of a Methodist minister's location in 
 this life, to say nothing of a future state.) The 
 answer to this remarkable complaint is worth quot- 
 ing in one particular: " The defendant admits that, 
 when she and said A. B. went to be married, they 
 
 rode in a double wagon from to , but 
 
 she avers that she did not know then, and is still 
 unaware, that there was any wrong or illegality in 
 riding, to be married, in a double wagon." Prob- 
 ably the draftsman of this complaint thought that 
 a stronger inference could be drawn against the 
 validity of the marriage, if he hitched a double team 
 to it. 
 
 Perhaps as good an example of pleading the evi- 
 dence instead of the facts, as can be found in fic- 
 tion, is in Dame Quiclcly's accusation of Falstaff. 
 The fact which the hostess meant to aver Avas that 
 Jack had promised to marry her, but in her garru- 
 lous and detailed statement it grew" into these pro-
 
 PLEADING Ul^DER THE CODE. 113 
 
 portions: " Thou didst swear to me, upon a parcel- 
 gilt goblet, sitting in my Dolphin chamber, at the 
 round table, by a sea-coal fire, upon Wednesday, 
 in Whitsun week, when the prince broke thy head 
 for liking his father to a singing man of Windsor; 
 thou didst swear to me then, as I was washing thy 
 wound, to marry me, and make me my lady thy 
 wife; Canst thou deny it? Did not good wife 
 Keech, the butcher's wife, come in then, and call 
 me gossip Quickly? coming in to borrow a mess of 
 vinegar; telling us she had a good dish of prawns; 
 whereby thou didst desire to eat some; whereby I 
 told thee they were ill for a green wound? And 
 didst thou not, when she was gone down stairs, de- 
 sire me to be no more so familiarity with such poor 
 people; saying that ere long they should call me 
 madam? And didst thou not kiss me, and bid me 
 fetch thee thirty shillings? I jiut thee now to thy 
 book oath; deny it, if thou canst." It has been 
 conjectured that Shakespeare was, at some period 
 of his life, a law clerk, and Lord Campbell summed 
 up the evidence on the question in a pamphlet. If 
 his lordship had been acquainted with the early 
 days of our code, he would have admitted, that even 
 if the great dramatist had never drawn a bill in 
 chancery, he had at least anticipated the scope and 
 form of many of the complaints under that much- 
 abused and hardly-understood body of laws which 
 regulates our practice. 
 
 The pathetic and rhetorical flights of eloquence 
 
 are not impossible in a complaint under the code. 
 
 In an action for negligence that once came under 
 
 my notice, the plaintiff described the result of the 
 
 15
 
 114 PLEADIXG UNDEE THE CODE, 
 
 injuries as follows: " Thereby rendering her, as she 
 the plaintiff is informed and believes, forever una- 
 ble to work, and precluding her from gaining a 
 livelihood, and from all the benefits and enjoyments 
 in life, to which she, this plaintiff, in common with 
 each and every member of the human race, is an 
 heir and an inheritor." To which the heartless de- 
 fendants answered that they had no knowledge or 
 information sufficient to form a belief, "as to 
 whether she is an heir and inheritor of the benefits 
 and enjoyments of life, or any of them, and demand 
 that in respect to the same she trace her pedigree 
 and prove her title." 
 
 I had supposed until T saw the foregoing that 
 pathos and eloquence in pleading had been ex- 
 hausted before the code in the case of Barron v. 
 Ricliard (3 Edw. 96). This was a suit to restrain 
 the defendant from using a coal yard, under a cov- 
 enant in a deed not to carry on or permit any trade 
 or business offensive to the neighboring inhabitants. 
 The bill contained the following ornate passages: 
 *'In which during several successive months last 
 past they have daily received and still continue to 
 receive coal of divers and many sorts; and to break 
 it up and screen or sift the coal so broken, and 
 separate the same from the dust; and they have 
 there sold and continue to sell such coal and load 
 it into carts, and to carry it away, and to conduct 
 the business with all the ordinary circumstances and 
 practices usual in such business, and to occasion 
 large quantities of the black, filthy, volatile, offen- 
 sive dust and smut, usually incident to a coal yard, 
 where much business is done, to rise on the air and
 
 PLEADING UNDER THE CODE, 115 
 
 to be diffused around by the wind and into the 
 premises of the neighboring inhabitants; and in 
 spite of all the care which the neighbors can be- 
 stow, such coal dust and smut will settle on their 
 walks, on their green sward, on their fragrant 
 plants and flowers, beclouding the brightness and 
 beauty which God has given to make them pleasant 
 to the eye and cheering to the heart of man. They 
 settle too on the neighbors' steps, thresholds and 
 windows; and enter into their out-houses, their 
 dwellings, their carpets, their cups, their kneading- 
 troughs, their beds, their bosoms, and their lungs; 
 discolor their linen and their otherwise stainless 
 raiment and robes of beauty and comfort, deface 
 their goodly furniture, blacken, besmear and injure 
 every object of utility, beauty or taste, and are 
 thus offensive and injurious to all the neighbors 
 who have regard for decency and cleanliness, so es- 
 sential to the health and happiness of society, and 
 by reason of the immediate proximity of your com- 
 plainant they are to him peculiarly offensive and 
 injurious." The defendants demurred, but the vice- 
 chancellor's sympathies were so wrought upon by 
 this touching statement, that he held the bill good. 
 On appeal he was sustained by the chancellor, who 
 observed: ''The allegation in the bill on this sub- 
 ject, though it is a little poetical, cannot be consid- 
 ered a mere poetic fiction, as it is sworn to by the 
 complainant and is admitted by the demurrer. 
 Making all due allowance for the coloring which 
 the pleader has given to this naturally dark picture, 
 it is perfectly certain that this keeping of a coal 
 yard upon any of those lots is a business offensive
 
 116 PLEADIISTG UN"DER THE CODE. 
 
 to the neighboring inhabitants, according to the 
 spirit and intent of these restrictive enactments." 
 
 Another troublesome feature of this requirement 
 of the code is, that the facts shall be stated in a 
 plain and concise manner, without unnecessary 
 repetition. It would be sad, indeed, if justice de- 
 pended upon the strength or copiousness of a plead- 
 er's language. The office of pleadings is not to 
 scare, confound or overwhelm the adverse party. 
 It may be true, as Napoleon said, that Providence 
 is on the side of the heaviest battalions, but justice 
 is not necessarily on the side whose lawyer has the 
 gi'eatest command of synonyms. Words are cheap. 
 Those who have the least to say, or are uncertain 
 how to say it, generally have the most of them. 
 Here is the difficulty of the rule of the code; it pre- 
 supposes that the pleader knows exactly what he 
 wants. Now, when we were among the leeks and 
 cucumbers of the Egypt of pleading at common 
 law, this was not so material. But granting that 
 the pleader knows what he wants, how hard it seems 
 to be for him to call a spade a spade. He seems to 
 be continually laboring under the delusion that if 
 he calls things by their right names something aw- 
 ful will happen; that he is wandering about the 
 ^temple of justice in a state of enchantment, being 
 bound to flank every fact by verbal circumlocution, 
 for fear the use of a common word or a direct and 
 simple phrase will wake him up, and tumble the 
 temple about his head. He is possessed by the de- 
 mon having charge of the " long- tailed words end- 
 ing in osity and ation." And how he loves to accu- 
 mulate — to add to each succeeding allegation all
 
 PLEADING UJS'^DER THE CODE. 117 
 
 that went before. Many pleadings are apparently 
 drawn in the idea that every allegation is forgotten 
 oj loses its virtue as soon as read, and so the pleader 
 rolls along his snow-ball of words, growing bigger 
 and bigger and more unwieldy and shapeless to the 
 end. It is like "the house that Jack built; " " this 
 is the cow with the crumpled horn," being utterly 
 ineffective, unless connected with the preceding al- 
 legations, "that tossed the dog, that worried the 
 cat," etc. As the judge in Racine says of the ad- 
 vocate: 
 
 *' To repeat the same thing twenty times he prefers by far, 
 Than once to abridge." 
 
 It is quite fortunate for the reputation of our 
 profession among authors, that the world do not 
 see our pleadings. If they were public, Whittier 
 might speak of " weary lawyers with endless pens," 
 as well as "tongues." Eeally, the mass of people 
 have no idea of our industry. The Pyramids, the 
 Colossus of Rhodes, the Simplon road, are well 
 enough in their way, but if you want to get an ade- 
 quate idea of the industry, the ingenuity, and the 
 perseverance of man, read a law-pleading. The 
 Cretan labyrinth is not so involved; the Sphynx is 
 not so mysterious; like a suspension bridge, its 
 middle rests on nothing, but it is continuous and 
 self-sustaining; take an allegation out of the center, 
 although it is just like a dozen others preceding it, 
 and down goes the structure. Reading one of 
 these pleadings is like crawling through a long and 
 narrow tube — you can't turn around; but, having 
 once started, you must go through to the other end.
 
 118 PLEADING UNDER THE CODE. 
 
 or else back out. Of course, all this is very fine, 
 but it is not law; c^ed magnifique, mats ce n'est pas 
 guerre. A man may develop a great amount of 
 muscle in endeavoring to lift himself by his boot- 
 straps, but the experiment is always a failure, and 
 answers no useful purpose. So a man may, even 
 under the code, get a great reputation as a pleader, 
 by drawing interminable pleadings that bother the 
 other side very much, but, after all, don't help his 
 side on a bit. It is no wonder that Mr. O'Conor, 
 driven to desperation by such pleadings, should say 
 that they tell the client's story, "just as any old 
 woman in trouble for the first time would narrate 
 her grievances." Not that Mr. O'Conor is strictly 
 accurate in this harsh reflection ujDon the "old wo- 
 man." No old woman of my acquaintance, in 
 describing her being knocked down by a runaway 
 horse, has ever told me that it occurred '' while she 
 was lawfully and carefully walking in, upon and 
 across a certain public street, highway and thor- 
 oughfare;" or in narrating an assault and battery 
 committed on her, has ever informed me that 
 the defendant struck her "a great many violent 
 blows and strokes in and upon various parts of her 
 body and person;" or, in describing its effects, hus 
 ever said that she became " sick, sore, lame, bruised 
 and disordered; " or, in unfolding the particulars of 
 some slanderous accusation, has ever intimated 
 " that the defendant, unlawfully, willfully and ma- 
 liciously intending and contriving to injure her in 
 her good name, fame and credit, and bring her into 
 discredit, disrepute and infamy among her friends, 
 neighbors and acquaintances, and the public, spoke,"
 
 PLEADIJiTG UNDER THE CODE. 119 
 
 etc. I do not number any such rhetorical and tau- 
 tological elderly lady on my list of clients, and I 
 strongly suspect that Mr. O'Conor never fell in with 
 her. These ingenious flights are the work of the 
 Sinbads of the legal profession^ and are not charge- 
 able on any layman or laywoman. They are the 
 traditionary remnants of that ancient system of 
 pleading which Mr. O'Conor reverences and mourns 
 for. The poet Moore sings, in his sweet way: 
 
 " Like a vase ia whicli roses have once been distilled. 
 You may break, you may shatter the vase, if you will. 
 But the scent of the roses will cling to it still." 
 
 And applying this idea to the present subject, I 
 should sing: 
 
 In a skull if tautology's once been instilled, 
 
 You may break it and scatter its wig, if you will. 
 
 But the trick of tautology clings to it still. 
 
 Now we have dropped into poetry, allow me to 
 offer a little original poem on this topic, to which, 
 I suspect, Mr. Longfellow is somewhat indebted foi 
 some famous verses of his: 
 
 A PSALM OF LAW. 
 JVhat the heart of the Codifler said to the Pleader. 
 
 Tell me not, in accents croaking, 
 
 '' Brevity's an empty dream ; " 
 What's the use, with verbal cloaking. 
 
 To make things other than they seem ? 
 
 Law is real ; and law's expensive ; 
 
 Special pleading 's not its goal ; 
 Rhetoric and tape make pensive 
 
 Many a weary client's soul. 
 
 I
 
 120 PLEADING UNDER THE CODE. 
 
 To orate, or rouse to passion 
 
 In your pleading 's not the way ; 
 State your case in simple fashion, 
 
 Let the judge see what's to pay. 
 
 Law is long and time is fleeting, 
 
 And our lips, dull habit's slave. 
 Are, forgetting fact, repeating 
 
 The old forms our fathers gave. 
 
 In the field of litigation, 
 
 In the strife of good and evil. 
 With straightforward allegation 
 
 Tell the truth and shame the devil. 
 
 Trust not Humphrey, Barbour, Chitty ; 
 
 Let dead cases bury their dead ; 
 With stale lies 'tis surely pity 
 
 To bother any judge's head ! 
 
 Lives of pleaders all remind us, 
 
 We may make our lives a bore. 
 And, departing, leave behind us 
 
 Pleas choke full of useless lore ; — 
 
 Precedents that perhaps another, 
 
 Doomed by cruel fate to find, — 
 Some perplexed and anxious brother, 
 
 Reading, shall quite lose his mind ! 
 
 Sell your form books for waste paper ; 
 
 State the facts at any rate ; 
 Hesitating how to shape a 
 
 Pleading — why, abbreviate. 
 
 But as there is an alleviating feature of almost 
 every evil, so the repetitions of lawyers argue one 
 virtue at least: they prove that our profession are 
 willing to give money's worth and more, for we are 
 no longer paid in proportion to the dimensions of
 
 PLEADING UNDER THE CODE. 121 
 
 the verbal pyramids which we erect. We are will- 
 ing: to throw in a few hundred extra and unneces- 
 sary adverbs and prepositions, and are not'parsimo- 
 nious even in the matter of nouns. 
 
 Part of this diffuseness is chargeable on our 
 clients, who would not believe us half so wise if we 
 were only half as long in our pleading. A man suf- 
 fering from tooth-ache once went to a dentist and 
 asked him how much he would charge for extracting 
 the offending member. A dollar, was the reply. 
 "Why," exclaimed the patient, "Doctor Jones 
 only charged me half a dollar the other day, and 
 dragged me all round the office, too! " Our clients 
 want to be dragged all around the office, and all 
 over creation, when we state their rights and wrongs 
 on paper. 
 
 In conclusion, I will advert to a topic, which, al- 
 though not strictly covered by my text, is yet ger- 
 mane to it. I refer to the phraseology of indict- 
 ments. If any one can give any plausible excuse 
 for the use of nine-tenths of the words in any in- 
 dictment, I am curious to know it. The commis- 
 sion of crime may be just as definitely charged in a 
 score of words as in ten score, and rather more defi- 
 nitely, for the memory is not taxed in the former 
 case. It has always seemed to me inhuman to com- 
 pel a man accused of a capital offense to listen to the 
 reading of the indictment. It is an added bitter- 
 ness to death. To be sure it consumes time, in 
 which circumstances may come to light tending to 
 exculpate the accused. A refined humanitarian, 
 opposed to capital punishment, like Horace Greeley 
 or Mr. Bergh, might act on this idea, and contrive 
 16
 
 122 PLEADING UNDER THE CODE. 
 
 an indictment so long that its reading would allow 
 the prisoner to die a natural death. The sultan 
 once offered immense largess and honor to him 
 Tvho would invent a story without end — untold 
 wealth and the hand of his daughter in marriage. 
 Any one was at liberty to contest for the prize, but 
 in case of failure, the bowstring was the penalty. 
 A good many had fallen victims to their greed and 
 their short-windedness, when another competitor 
 presented himself, who, I have reason to believe, 
 was an old-time English special pleader. The sul- 
 tan seemed to be moved with compassion, and asked 
 him if he had duly weighed the matter. He re- 
 plied that he had. Said the sultan, " one fellow 
 told me a story that lasted eleven months; do you 
 think you can beat him?" The brave man smiled 
 superior; the preliminaries were settled; so Avas the 
 listener; and the raconteur, after enumerating the 
 great man's titles, which occupied some hours, thus 
 commenced: "Once upon a time there was a king 
 of Egypt, who, anticii^ating a mighty famine, caused 
 an immense granary to be erected and filled with 
 wheat. It was four hundred miles square and five 
 miles high, and as he supposed, hermetically sealed. 
 It seems, however, that a hole, near the top, about 
 as large as a pipestem, had been overlooked. The 
 next year an enormous swarm of locusts over- 
 whelmed the land. They discovered the orifice, 
 just large enough for one locust to enter at a time, 
 and so one locust crawled in and flew away with a 
 kernel of wheat, and then another locust crawled in 
 and flew away with another kernel of wheat, and 
 then another locust crawled in and flew away with
 
 PLEADIlfG UNDER THE CODE. 123 
 
 another kernel of wheat, and then another — '' 
 *'Well," interrupted the sultan, "I suppose the 
 locusts carried off all the wheat, and then what?" 
 "Why," answered the narrator, 'Hiow can I tell 
 your ineffable majesty what hapjDened after the 
 wheat was all gone, until I first describe to you the 
 process of its abstraction? I will endeavor not un- 
 necessarily to procrastinate, but really these details 
 seem essential. They may consume some time. 
 Considering the dimensions of the magazine, and 
 the amount of time which your inextinguishable 
 sanctity is willing daily to bestow on your worm of a 
 narrator, I conscientiously think I may finish this 
 introductory part of my story in — well, say, a half 
 a century — and then we shall be quite fresh and 
 ready to enter on the merits." The sultan stroked 
 his beard, groaned, and gave it up. 
 
 Perhaps in these days, when crime seems so 
 frightfully on the increase, it might have a re- 
 straining and salutary effect to abolish capital pun- 
 ishment and substitute the reading of the indict- 
 ment. The prospect of such a fate would deter the 
 boldest and the most wicked. In aggravated cases, 
 where methodical lunatics slay men who they fancy 
 have hurt their honor, I would add the penalty of 
 listening to the testimony of the medical witnesses 
 on the subject of insanity. If the offenders were 
 not really mad, they soon would be. Possibly this 
 plan would be open to Montesquieu's objections 
 against punishments unduly severe. Possibly the 
 offenders would take themselves off to evade the 
 penalty, and thus save the State all trouble. But 
 there is a sort of poetic justice in the idea that
 
 124 PLEADING UNDER THE CODE. 
 
 pleases me, and I am by no means certain that I 
 have not hit on the universal panacea that shall 
 give peace and safety to society. 
 
 Having now strayed to the customary and or- 
 thodox distance from my text, I will dismiss the 
 meeting. 
 
 I
 
 A SOCIETY FOR THE PREVENTION OF CRU- 
 ELTY TO LAWYERS. 
 
 I HAVE latety experienced two severe shocks upon 
 my nervous system. This fact has led me to con- 
 template the propriety of establishing some plan of 
 protection for lawyers. Of course, it is conceded 
 that, as a class, we are utterly reprobate and given 
 over, and that when we die, we must, nearly all of 
 us, go to the bad. However, as in that event, we 
 shall unquestionably be accompanied by a vast ma- 
 jority of our clients, much of the bitterness of that 
 reflection is extracted. But it is cruel for a person 
 of superior genius or virtue to be continually crow- 
 ing over one to whom Providence has been less 
 bounteous, or Satan more attentive. It is naughty 
 to throw stones at a drunken man. And so it is 
 wrong for clergymen and other sinless and nn- 
 tempted men, to twit us lawyers with our fallen 
 condition. Now my idea is, that we ought to band 
 together for self -protection against these angelic as- 
 saults, or that the State ought to furnish a system 
 of police for our defense. I am usually very par- 
 ticular, when I go out of town to court, to conceal 
 every thing indicative of my profession, but in go- 
 ing to Albany the other day, I forgot my accus- 
 tomed caution, and tied my bundle of papers with 
 red tape. On the cars I was sharply scrutinized by 
 a dyspeptic and saintly gentleman, who looked too
 
 126 A SOCIETY FOR THE PREVENTIOIST 
 
 good for this world, and out of whose shoulders 1 
 expected momentarily to see a pair of wings sprout- 
 ing; presently he approached me, and in a hollow 
 voice, asked me if I were not a lawyer — much in 
 the manner that you would ask one if he were not 
 the devil. I replied, in a deprecatory manner, that 
 I was one of that unhappy and despised race. 
 Thereupon he pressed upon me a printed paper, at 
 arm's length, as if I were a leper, and hastily re- 
 treated. I read the paper, which was in the words 
 and figures following: 
 
 "and thex?" 
 
 ''A young man, whom I had known as a boy 
 came to an aged professor of a distinguished conti- 
 nental university with a face, beaming with delight, 
 and informed him that tlie long and fondly cher- 
 ished desire of his heart was at length fulfilled, his 
 parents having given their consent to his studying 
 the profession of the law. As the university pre- 
 sided over by his friend was a distinguished one, he 
 had repaired to its law school, and was resolved to 
 spare no labor or expense in getting through his 
 studies as quickly and ably as possible. In this 
 strain he continued for some time; and when he 
 paused, the old man, who had been listening to 
 him with great patience and kindness, gently said, 
 'Well, and when you have finished your career of 
 study, what do you mean to do then?' 'Then I 
 shall take my degree,' answered the young man. 
 
 " ' And then ? ' asked his venerable friend. ' And 
 then,' continued the youth, 'I shall have a num- 
 ber of difficult and knotty cases to manage; and
 
 OF CRUELTY TO LAWYERS. 127 
 
 shall attract notice by my eloquence and wit and 
 acuteness, and win a great reputation.' 
 
 "'And then?' repeated the aged man. 'And 
 then!' replied the youth; 'why, then there can- 
 not be a question I shall be promoted to some high 
 office in the State, and I shall become rich.' 
 
 " ' And then? ' ' And then,' pursued the young 
 lawyer, ' then I shall live comfortably and honora- 
 bly in wealth and respect, and look forward to a 
 quiet and happy old age.' 
 
 "'And then?' repeated the old man. 'And 
 theu,' said the youth, 'and then — and then — 
 and then I shall die.' Here his venerable listener 
 lifted up his voice and again asked with solemnity 
 and emphasis: 'And then?' Whereupon the as- 
 piring student made no answer, but cast down his 
 head, and in silence and thoughtfulness retired. 
 The last 'And then?' had pierced his heart like a 
 sword, had darted like a flash of lightning into his 
 soul, and he could not dislodge the impression. 
 The result was, the entire change of his mind and 
 course of his life. Abandoning the study of the 
 law, he entered upon that of divinity, and spent the 
 remainder of his days in the labors of a minister of 
 Christ. — [iVb. 154 American Tract Society.'" 
 
 Now, one of the main purposes of my Society for 
 the Prevention of Cruelty to Lawyers would be to 
 issue tracts aimed at other jDCople than lawyers — 
 say clergymen, for instance. Adopting the forego- 
 ing courteous and winning exhibit as my model, I 
 would suggest the following:
 
 128 A SOCIETY FOR THE PREVENTIOJT 
 
 AND THEN? 
 
 A young man, who never was a boy, came to an 
 aged professor of a distinguished law school, with a 
 face full of gravity, and informed him that the long 
 and fondly cherished desire of his heart was at 
 length fulfilled, his parents having given their con- 
 sent to his studying the profession of divinity. As 
 the university with which his friend was connected 
 was a distinguished one, he had repaired to its di- 
 vinity school, and was resolved to spare no labor or 
 expense in getting through his studies as quickly 
 and as ably as possible. In this strain he contin- 
 ued for some time; and when he paused, the old 
 man, who had been listening to him with great pa- 
 tience and kindness, gently said: "Well, and when 
 you have finished your career of study, what do you 
 mean to do then?" "Then I shall take my de- 
 gree," answered the young man. "And then?" 
 asked his venerable friend. "And then," contin- 
 ued the youth, " I shall have a great many knotty 
 and difficult dogmas to reconcile with common 
 sense, and shall attract notice by my eloquence, my 
 dignity, and my abuse of lawyers and other bad 
 men, and shall claim to wield the power of the Al- 
 mighty in condemning to perdition all clergymen 
 and other Christians who shall dare to differ from 
 me in opinion, and the members of all professions 
 who shall dare to contend with the clergy for a 
 share of the respect and confidence of their fellow- 
 men, and shall win a great reputation." "And 
 then? " repeated the aged man. " And then," re- 
 plied the youth, "why then there cannot be a ques- 
 tion I shall be called by some wealthy congregation.
 
 OF CKUELTT TO LAWYERS. 129 
 
 and shall marry a rich wife. " " And then ? " " And 
 then," pursued the young divine, "then I shall live 
 comfortably and lazily in wealth and respect, and 
 look forward to a quiet and happy old age." "And 
 then?" repeated the old man. "And then," said 
 the youth, "and then — and then — and then 1 
 shall probably die." Here his venerable listener 
 lifted up his voice, and again asked, with solemnity 
 and emphasis: '' Anditlienf" Whereupon the as- 
 piring student made no answer, but cast down his 
 liead, and in silence and thoughtfulness was retir- 
 ing, but as he got to the door, he slowly and sadly 
 answered: " Why then I suppose I shall be sorry I 
 wasn't a lawyer." This last "And tlienV^ had 
 pierced his heart like a sword, had darted like a 
 flash of lightning into his soul, and he could not 
 dislodge the impression. The result was the entire 
 change of his mind and course of his life for the 
 better. Abandoning the study of divinity, he en- 
 tered upon that of the law, and spent the remainder 
 of his days as an honest, useful, and civil lawyer. — 
 {No. 154 Society for the Prevention of Cruelty to 
 Laioyers. 
 
 Another main purpose of my society would be to 
 keep track of and refute the misrepresentations — 
 (I desire to be gentlemanly in my choice of words) — 
 of authors. And now for my other shock. One of 
 the most charming writers in English literature is 
 Arthur Helps, author of "The Spanish Conquests 
 in America," " Friends in Council," etc. In one of 
 his earlier works, "Companions of my Solitude," 
 in the course of a gloomy view of law and lawyers, 
 he says: "These evils are not of yesterday, or of 
 17
 
 130 A SOCIETY FOE THE PREVEXTIOX 
 
 this country only; I observe that the first Spanish 
 colonists in America write home to the government, 
 begging them not to allow lawyers to come to the 
 colony." Xow here is where my other shock comes 
 in. If the author had cited Herod as an example 
 of philoprogenitiveness; Nero as a model of filial 
 affection; Alaric, Attila and Genseric as peace- 
 makers; Philip Second as an advocate of civil and 
 religious liberty, or Henry Eighth as a precedent 
 for conjugal fidelity, my nervous system would not 
 have undergone the shock that it experienced at 
 hearing him cite the antipathy of " the first Span- 
 ish colonists in America," as any thing against law- 
 yers. 
 
 "Who were " the first Spanish colonists in Ameri- 
 ca," and what Avas the moving principle of their 
 emigration? They were a crowd of adventurers 
 and vagabonds, who came to this country to sub- 
 sist on the stolen gains and labors of other men — 
 a pack of thieves and cut-throats, who, starting out 
 under the banner of church aggrandizement or 
 maritime discovery, through the auri sacra fames 
 fell into the most dreadful course of oppression and 
 injustice that the history of the world records — op- 
 pressions on an amiable and unoffending race, which 
 in some instances, as for example in Cuba, they al- 
 most exterminated in their mad and wicked hunt 
 after money without labor. The roasting of In- 
 dians was a pursuit in which lawyers would have 
 been of no use. Such mild-mannered gentry as 
 Pizarro and Cortez needed no rascal attorneys to 
 aid them in their efforts for the conversion of 
 heathen Mexicans and Peruvians, as recorded by
 
 OF CEUELTY TO LAWYERS. 131 
 
 the Spanish historians. Where law and Justice are 
 unknown^ lawyers are superfluous. Fair play was a 
 consideration that did not enter into the plans of 
 '•'the first Spanish colonists in America," and so 
 those of them who survived the ravages of venereal 
 diseases on their first arrival, unanimously besought 
 the government to keep the lawyers at home, in or- 
 der that they might ravage, slay and extort, un- 
 checked by courts of justice. They wanted such a 
 state of things as Pat wrote to his brother in Ire- 
 land was the rule in this country — "no hangin for 
 Stalin." I wonder that Mr. Helps did not also quote 
 the remark of Peter the G-reat on his visit to Eng- 
 land, that he had but two lawyers in his dominions, 
 and meant to hang one of them on his return; or 
 that of Jack Cade's friend, who said, "the first 
 thing we do, let's kill all the lawyers." The truth 
 is that lawyers cannot flourish except in a free and 
 enlightened country, and their numbers and influ- 
 ence are in jDroportion to the degree of freedom and 
 enlightenment. I dare say there are not many law- 
 yers in Xew Zealand or China. There are only 
 some eighteen hundred in Prussia, although I look 
 for their rapid increase there under the influence of 
 recent events. In France we find twelve thousand, 
 in Great Britain thirty thousand, and under the 
 government founded in the idea of fair play and ab- 
 solute equality before the law, we have forty thou- 
 sand of this incendiary class. In the face of such 
 facts, Mr. Helps should not cite the opinion of " the 
 first Spanish colonists in America," nor of the 
 fiends in perdition, although I dare say these admi-
 
 132 A SOCIETY FOR THE PREVENTION 
 
 rable characters would agree in the desire to sup- 
 press the lawyers. 
 
 A subsidiary purpose of my society would be to 
 keep the newspapers honest in their reports of law- 
 suits and remarks about lawyers. Nothing unrea- 
 sonable should be required of them; if one report 
 in three were moderately correct, it is all that could 
 be exacted. All of us, from the judge, who is al- 
 ways delivering an ''impartial and comprehensive 
 charge," to the advocate who never makes any but 
 an ''able and eloquent effort," feel the power of 
 the press; but we know, too, that pecuniary offer- 
 ings soothe the terrible deities who preside over it, 
 and allay their just wrath, and, consequently, my 
 society should establish a sinking fund, to provide 
 against the virtuous spasms of the newspapers. 
 
 Another minor purpose of my society would be 
 to protect lawyers against law reports. If we were 
 expected only to know the contents of the reports, 
 that we could get along with; but when we are re- 
 quired to pay for them, that strikes home. Not 
 only this, but how is one going to house them ? If 
 they go on much longer, every lawyer will be forced 
 to hire a rope-walk to keep his books in. Oh for 
 some Omar or Von Moltke, to burn some new 
 Alexandria or Strasbourg with all the law reports! 
 A pension list might be made for the reporters, 
 conditional on their issuing no more reports, or, at 
 all events, not more than one or two volumes a 
 day. 
 
 I would also have my society suppress bar meet- 
 ings on the death of lawyers. This I put mainly 
 on the ground of the poverty of our language in
 
 OE CRUELTY TO LAWYERS. 133 
 
 adjectives, and its utter inadequacy to describe the 
 virtues which pertain to us from the moment we 
 die. 
 
 Perhaps I may think of some other things for 
 my society to do, but these are all that now occur 
 to me.
 
 134 NUISANCE. 
 
 NUISANCE. 
 
 The law is careful of the eyes, ears and noses of 
 mankind, and will not justify offensive sights, 
 sounds, or smells, but will punish as crimes offenses 
 against those necessary and sensitive organs, pro 
 vided such offenses involve a general and public 
 disturbance. But the offense must be rank, and 
 smell to heaven, to sustain an indictment. Other- 
 wise, nothing more than an action for damages will 
 lie. Quite an extraordinary catalogue might be 
 made of the complaints which nervous people have 
 made against their neighbors — to say nothing of 
 serious attacks upon health by offensive trades and 
 occupations which have come before the courts. 
 Concert saloons and locomotives, bowling alleys and 
 butting rams, billiard saloons and biting dogs, 
 boiler shops and bathing in exposed situations, 
 swearing and slaughter-houses, obstructions to travel 
 in public streets by means of too attractive shop 
 windows, or the vending of distillery slops; and a 
 score of other things, have constituted the cause of 
 action under this head. Let us glance at a few of 
 the more curious cases. 
 
 The courts in ]S"orth Carolina seem singularly in- 
 
 _sensible to the charms of music. In State v. Bald- 
 
 ivin (1 Dev. and Bat. 195), it was held no nuisance 
 
 to curse and swear so loud at a tavern as to break 
 
 up a singing school near by. It is a very improv-
 
 NUISANCE. 135 
 
 ing mental exercise to read a syllabus, and then, 
 closing the book, try to imagine on what grounds 
 the court places its decision. For instance, in this 
 case, I imagined that, perhaps, the court held the 
 cursing and swearing to be the legitimate and ordi- 
 nary use of the tavern property, of which the owner 
 could not lawfully be restrained. Or, perhaps, the 
 quality of the music had something to do with the 
 decision, for it must be admitted that poor singing 
 is almost as bad as profanity. Indeed, might it not 
 have been its bad quality, grating on the cultivated 
 and sensitive ears of the tavern guests, that caused 
 their profanity, as certain sounds of the gamut are 
 said to cause dogs to howl? Was the singing relig- 
 ious or secular? Even if religious, have we not 
 Falstaff's testimony that he had spoiled his voice 
 with singing of j^salms? But now, opening the 
 book, see how mistaken we have been, and how, ex- 
 cept in the last conjecture, we have not even ap- 
 proached the real ground of decision: ''Its inter- 
 ruption" — that of the singing school — "cannot be 
 legally pronounced an inconvenience to the whole 
 community. The loss of instruction in the accom- 
 plishment, to those who would fain acquire it, does 
 not very gravely influence the good order or enjoy- 
 ment or convenience of the citizens in general, so 
 as to call for redress on the complaint of the State." 
 That is to say, as corporations have no souls, so the 
 State has no ears. But further: "If we sustain 
 this as an indictment for a common nuisance, we 
 shall be obliged to hold that whenever two or more 
 persons talk loud, or curse, or quarrel, in the pres- 
 ence of others, it may be charged that this was done
 
 136 NUISAXCE. 
 
 to the common nuisance, and if so found, will war- 
 rant punishment as for a crime." The judge is, 
 perhaps, sound here; such a doctrine would involve 
 even the abolition of our National Congress — a ca- 
 lamity at which every good citizen would stand 
 aghast. And yet, in Pennsylvania, they held that 
 the offense of being a common scold is indictable, 
 and may be punished by fine, or fine and imprison- 
 ment, at discretion. James v. CoynmonweaUh (12 
 S. and'R. 220). But the judge winds up thus: 
 *' The persons disturbed are not represented as hav- 
 ing been engaged iu the performance of any public 
 duty — as engaged in religious worship, attending 
 at any election, or at a court.*' Here, perhaj^s, was 
 the defect in the prosecutor's case; he should have 
 proved that the singing school were practicing 
 hymn tuues. I fear that this case indicates some- 
 thing rotten in the State of North Carolina. Did 
 not Shakespeare say: 
 
 " The court that hath no music in himself, 
 Nor is not moved by concord of sweet sounds, 
 Is fit for treason, stratagems, and spoils, ' 
 
 And does not the late national " unpleasantness," 
 taken in connection with this decision, bear out the 
 poet's idea? But as the old pine-wood common- 
 wealth has in vain struggled for liberty, ''and the 
 sounding aisles of her dim woods " cannot '* ring 
 with the anthems of the free," she is determined 
 that they shall at least ring with those of the "free 
 and easy." Quite possibly it would there be held a 
 nuisance to sing so loud as to break up the cursing 
 and swearing at a tavern near by.
 
 NUISANCE. 137 
 
 Another case to which we would call attention is 
 State V. Lhihhmo (69 N. C. 214). The defendant 
 was indicted for disturbing a religious congregation. 
 He was a strict member of the Methodist church, 
 and a man of exemplary deportment, but he sang 
 in such a way as to disturb the congregation. The 
 disturbance consisted partly in his holding on the 
 notes after the other singers had let go. He was 
 evidently trying to realize Milton's idea of " linked 
 sweetness long-drawn out." This disturbance was 
 decided and serious; *' the effect of it was to make 
 one part of the congregation laugh and the other 
 mad; the irreligious and frivolous enjoyed it as fun, 
 while the serious and devout were indignant." 
 Once the preacher had shut up the book and de- 
 clined to sing the hymn. The presiding elder had 
 refused to preach in the church on account of the 
 disturbance. On one occasion, " a leading member 
 of the church, appreciating that there was a feeling 
 of solemnity pervading the congregation in conse- 
 quence of the sermon just delivered, and fearing 
 that it would be turned into ridicule, went to the 
 defendant and asked him not to sing," and he then 
 refrained. On many occasions the church members 
 and authorities expostulated with him on account 
 of his singing and its disturbing effects, but he in- 
 variably replied, that " he would worship his God, 
 and that as a part of his worship it was his duty to 
 sing." One of the witnesses, being asked to describe 
 his singing, sang a verse in his voice and manner, 
 which "produced a burst of long and irresistible 
 laughter, convulsing alike the spectators, the bar. 
 the jury, and the court." The jury found him 
 18
 
 138 NUISANCE. 
 
 guilty, but this was reversed because there was no 
 proof or pretense of any intention or purpose to 
 disturb the worship, but on the contrary it was ad- 
 mitted that he was conscientiously taking part in 
 the religious services, and doing his "level best." 
 Now this was a serious case. The offender was a 
 member of the church in good standing, and there 
 was no fault in him save the eccentric character of 
 his vocalization. But it must have been a harrow- 
 ing reflection to his fellow church members that he 
 was to be saved, and that they were bound to listen 
 to that singing through all eternity. Those jealous 
 brethren must try some other course. If they had 
 come to me originally, or dropped me a line, I 
 could easily have managed the matter for them. 
 I should have said to them, just induce Brother 
 Linkhaw to embrace the ministry, and then he Avill 
 have to "rotate." I must confess, however, that 
 I am puzzled by the admission in evidence of the 
 imitation of the defendant's style of singing. It 
 was not a photograph, nor an exemplified copy, nor 
 a contemporaneous memorandum, nor a deposition 
 de bene esse. How was it brought wp on appeal ? It 
 was in no sense an exhibit, and could not have 
 formed a part of the record. Perhaps, as is some- 
 times done in our appellate courts in the case of 
 cumbrous articles of evidence, like the cellar door 
 on which the man kept his accounts, it was pro- 
 duced extraneously and dehors the record on the ar- 
 gument. Perhaps the witness repeated his imita- 
 tion on the hearing of the appeal. In that case I 
 should suppose the judge who delivered the opin- 
 ion would have indulged more in the humorous.
 
 NUISANCE. 139 
 
 and not have limited his observations to the com- 
 mon-phice: — **It would seem that the defendant ia 
 a proper subject for the discipline of his church, 
 but not for the discipline of the courts." Besides, 
 I think he is rather a proper subject for the dis- 
 cipline of that singing school which was the dis- 
 turbed party in State v. Baldiuin. 
 
 In this connection it may be observed that curs- 
 ing and swearing, to a moderate and reasonable de- 
 gree, is not a nuisance. To constitute such pro- 
 fane cursing and swearing as would be indictable as 
 a nuisance, the acts must be so repeated and so pub- 
 lic as to become an annoyance and inconvenience to 
 the community. The law is not so harsh as to 
 deem it a nuisance publicly to curse and swear 
 for the space of two hours. State v. Jones (9 
 Ired. 38). 
 
 But the law, although indulgent, cannot stand 
 every thing, and so the keeping in a public house 
 of *'* a certain common, ill-governed, and disorderly 
 room," and procuring and suffering, for lucre, dis- 
 orderly persons to meet and remain therein by night 
 and by day, ''drinking, tippling, cursing, swearing, 
 quarreling, making great noises, rolling bowls in 
 and at a game commonly called ten-pins," etc., is 
 a public nuisance. Bloomhuf v. State (8 Blackf. 
 205). 
 
 One would think that the Xortli Carolina lawyers 
 deemed courts and elections religious assemblages. 
 Thus, in State v. Kirby (1 Murphy, 254), an indict- 
 ment was sustained which alleged that the defend- 
 ant " swore several oaths in the court yard during 
 the sitting of the court, to the great disturbance
 
 140 XUISAKCE. 
 
 and common nuisance of the citizens attending said 
 court." The idea suggested in this case and in 
 State V. Baldium, that citizens are peculiarly apt to 
 be annoyed by profanity while attending court or 
 election, seems rather fanciful. That they are 
 more apt to be guilty of it at those times may be 
 admitted. But the law ought to be lenient toward 
 human frailty, and consider the provocation of an 
 unexpected nonsuit, or the dereliction of a pledged 
 elector, as going far to excuse unpremeditated pro- 
 fanity. 
 
 In Illinois Central Railroad Co. v. Grahill (1 
 Freeman, 241), which was an action brought by 
 Grabill to recover damages for the disturbance of 
 her enjoyment of her premises caused by the main- 
 tenance by the railroad of cattle-pens and hog-pens 
 near the same, it was held that the shouting and 
 noises made by those having charge of the stock 
 could not be regarded as an element of damage, for 
 the drovers " were not in a position to be controlled 
 by the company or their agents. Should they, as 
 they doubtless did, outrage the decencies and pro- 
 prieties of life, the company could not be held re- 
 sponsible, not having this control." The railroad 
 company could not comjDel the hog-drivers to ad- 
 dress their charge in a whisper. What the court 
 would have held, if the drivers had cursed and 
 sworn at the hogs, does not appear; although it is 
 probable that this would have formed a proper ele- 
 ment of damage. 
 
 It is perhaps doubtful under what category Com- 
 momoealth v. Taylor (5 Binney, 277) ought to be 
 classed, but it is digested under Xuisauce. The de-
 
 NUISANCE. 141 
 
 feudant was indicted for " that be, on the 24th of 
 August, 1809, about the hour of ten of the clock in 
 the night of the same day, witli force and arms, at 
 Lurgen township, in the county aforesaid, the 
 dwelling-house of James Strain there situate, un- 
 lawfully, maliciously, and secretly, did break and 
 enter with intent to disturb the peace of the com- 
 monwealth; and so being in said dwelling-house, 
 unlawfully, vehemently and turbulently did make a 
 great noise, in disturbance of the peace of the com- 
 monwealth, and greatly misbehave himself in the 
 said dwelling-house; and Elizabeth Strain, the wife 
 of the said James (not the commonwealth now), did 
 frighten and alarm, by means of which said fright 
 and alarm she, the said Elizabeth, being then and 
 there pregnant, did, on the 7th day of September, 
 in the year aforesaid, at the county aforesaid, mis- 
 carry, and other wrongs to the said Elizabeth then 
 and there did, to the evil example," etc. 
 
 The defendant tried to escape punishment on the 
 ground that this was a "crime without a name," 
 but the court thought it a misdemeanor notwith- 
 standing. Counsel cited several cases where indict- 
 ments had been supported for similar injuries. 
 Thus, a great noise Avith a speaking trumpet, to the 
 disturbance of the neighborhood, is a nuisance. 
 Rex V. Smith (1 Stra. 704). So, too, where the de- 
 fendant unlawfully and violently knocked at the 
 door of the prosecutor for tv/o hours, whereby his 
 wife Avas frightened and miscarried. Rex v. Hood 
 (Say. 167). So, too, where the defendant unlaw- 
 fully entered a house, and " committed a nuisance " 
 on the floor, in presence of the prosecutor's wife.
 
 142 NUISANCE. 
 
 Rex V. Rollo (Say. 158). Chief Justice Tilghman 
 went for punishing the defendant, because "the 
 malicious ingenuity of mankind is constantly pro- 
 ducing new inventions in the art of disturbing 
 their neighbors." Judge. Yates, too, said "human 
 prudence cannot guard against such outrageous 
 and unlawful acts as are here stated." But Judge 
 Brackenridge, in combatting the doctrine that the 
 conduct complained of was a mere private injury, 
 waxed learned, eloquent, and metaphysical, insist- 
 ing that an assault might be committed by the con- 
 cussion of air produced by speech: 
 
 "But taking the entry to amount to nothing 
 more than a walking in, the door open, may not the 
 motive of his entry, and the use he made of it, con- 
 stitute a misdemeanor? What is he alleged to have 
 done, after entering the house? 'Willfully, vehe- 
 mently and turbulently did make a great noise.' 
 How is a noise occasioned that is perceptible to the 
 ear? It must be by an impulse of the air on the or- 
 gans of hearing. And what is it, whether it is by 
 the medium of air, or water, or earth, that an as- 
 sault and battery is committed? The impulse of 
 the air may give a great shock. Birds have fallen 
 from the atmosphere struck by a mighty voice. 
 *•' This happened at the celebration of the Istlimian 
 games, as related by Plutarch in his life of Paulus 
 Emilius. Are we bound to consider the noise gen- 
 tle? Are we not at liberty to infer the mightiest 
 effort of the human lungs? But the power of im- 
 agination increases the effect. Armies have been 
 put to rout by a shout. The king of Prussia, 
 in the seven years' war, won a battle by the sound
 
 NUISANCE. 143 
 
 of artillery without ball. Indivirluals have been 
 thrown into convulsions by a sudden fright from a 
 shout. 
 
 "The infant in the womb of a pregnant woman 
 has been impressed with a physical effect upon the 
 body, and even u2)on the mind, by a fright. Mary 
 Queen of Scots, from- the assassination of llizzio, 
 communicated to her offspring the impression of 
 fear at the sight of a drawn sword. Peter the 
 Great of Russia had a dread of embarking on water 
 from the same cause. Shall we wonder, then, that 
 death is occasioned to the emhryo, in the womb of a 
 pregnant woman, by a sudden fright? If, in this 
 indictment, it had been stated that the woman was 
 pregnant with a living child, it might have been a 
 homicide. But she is stated to have miscarried, 
 which is the parting with the child in the course of 
 gestation. Will not the act of the individual mali- 
 ciously occasioning this constitute a misdemeanor? 
 A sudden fright, even by an entry without noise, 
 presenting the appearance of a specter, might occa- 
 sion this, even though in a playful frolic; yet, after 
 such effect, would not the law impute malice? No 
 person has a right to trifle in that manner to the in- 
 jury of another." 
 
 Eope-dancing was a nuisance" at common law. 
 This was decided by Lord Hale in Jacoi HalVs Case 
 (1 Mod. 76). Jacob was a rope-dancer of the time 
 of Charles Second, and on account of his beauty 
 and activity, had been taken into favor by the 
 Countess of Castlemaine, one of Charles' mistresses. 
 Hall being about to erect a stage at Charing-cross 
 to exhibit his performance, the king's bench, per-
 
 144 NUISANCE. 
 
 haps inspired by the king's excusable jealousy of 
 Jacob, held Jacob to be a nuisance in respect to his 
 rope-dancing. That he claimed to have the king's 
 warrant for it made no difference. If Charles had 
 proposed to make Jacob dance at the end of a rope, 
 perhaps the court would not have interfered. It is 
 not a little amusing that so acute a man as Judge 
 Cowen should have attributed the conduct of the 
 court on this occasion to the national respect for 
 law and order. In Tanner v. Trustees of Albion 
 (5 Hill, 128), commenting on this case, he observes: 
 ' ' Surely, we have not come to an age when the 
 morality of the law is relaxed beyond what it was in 
 the reign of Charles the Second, the date of Hall's 
 booth, erected, as he said, by license from the king. 
 This was a very probable account. Charles was 
 known to be the most careless in his moral conduct 
 of any man in his kingdom, and to keep a court 
 which was abandoned to all sorts of licentiousness. 
 The Duke of Buckingham, his principal adviser, 
 was said himself to have been a rope-dancer. It is 
 not very likely that a king whose palace was distin- 
 guished for being the largest brothel in Europe, 
 and who is known to have dismissed Lord Claren- 
 don on the joint advice of Buckingham and the 
 Duchess of Cleveland, a prostitute, would hesitate 
 to license any vicious establishments for which such 
 courtiers might invoke his patronage. The rule of 
 the common law becomes more evident, and the 
 precedent referred to more imposing, when thus 
 placed in contrast with the moral waste by which it 
 was surrounded." The judge's innocence is more
 
 NUISANCE. 145 
 
 easily understood, when he confesses, in the same 
 opinion: "I do not remember ever having seen a 
 game of billiards played, and am still farther re- 
 moved from actual knowledge whether the rooms 
 where they are kept have a tendency to promote 
 any kind of moral evil." 
 
 The case of Tanner v. Trustees of Albion was 
 one in Avhich the court held a bowling alley, kept 
 for gain or hire, a public nuisance. As far as an 
 obifer dichim could do it. Judge Cowen frowned 
 down billiard-rooms in the same opinion. "Were 
 the question res nova,'" he continues, "I doubt 
 whether I could bring myself to join in the annun- 
 ciation that a billiard-room, kept for lucre, in 
 whatever place, is not a nuisance at common law." 
 Doubtless the good judge's bones are rattling in 
 their grave with horror at the present unrebuked 
 prevalence of billiard saloons. The case that he 
 was driving at was probably People v. Sergeant (8 
 Cowen, 139), where it Avas held that keeping a bil- 
 liard table, where no betting was allowed, but 
 where the loser of the rub paid for the use of the 
 table, was not a nuisance at common law. Life, 
 with Judge Cowen, " meant business." He allowed 
 no fooling. "So far as I have been able to dis- 
 cover," he says, "erections of every kind, adapted 
 to sports or amusements, having no useful end, and 
 notoriously fitted up and continued with the view 
 to make a profit for the owner, are considered in 
 the books as nuisances. Not that the law discoun- 
 tenances innocent relaxation; but because it has 
 become matter of general observation, when gainful 
 establishments are allowed for their promotion, 
 19
 
 146 NUISANCE. 
 
 such establishments are usually perverted into nur- 
 series of vice and crime." Now, is it not fortunate 
 for me that the great judge is not in being? For 
 these '' humorous phases of the law," being designed 
 for sport and relaxation, and "having no useful 
 end," if I should print and bind them in sheep and 
 offer to sell them to my brethren of the legal pro- 
 fession, would he not come down on me, call me 
 and the book a nuisance, and enjoin us? His idea 
 amounts to this: the moment a man undertakes to 
 make a profit by furnishing public facilities for the 
 pursuit of a harmless and healthful sport, that mo- 
 ment he becomes a nuisance. He is then held to 
 have gone into the "nursery" business, to use the 
 judge's language, and is to be suppressed. 
 
 Rex V. Medley (6 Carr. and Payne, 292) is a case 
 fit to make Isaac Walton "go off the hooks." The 
 indictment alleged "that from time whereof the 
 memory of man runneth not to the contrary, there 
 had been, and still was, a certain ancient river 
 called the Thames," which was full of water fit to 
 drink, and of fish fit to eat, the taking of which fish 
 furnished the support of a large class of men; that 
 the defendant had conveyed into said river the ref- 
 use of gas, whereby the water was rendered unfit 
 for drinking, and the fish were destroyed, and the 
 fishermen were damaged in their said calling. It 
 was proved that the smell of the gas killed the 
 smelts in the stream. But the court, who was 
 probably not fond of fishing, remarked: "If the 
 diminution of fish is to be considered the criterion, 
 then every proprietor of a copper-bottomed vessel, 
 every maker of a sewer, every proprietor of a steam-
 
 NUISANCE. 147 
 
 boat, must be found guilt}', as they contribute to 
 such diminution, and it is not a question of de- 
 gree." ''As the people of England are resolved 
 to have gas-lights, and steamboats, and copper-bot- 
 tomed vessels, they must be content also to bear the 
 inconveniences which will occasionally result from 
 the use of them." 
 
 The public is very slippery. It is hard to lay 
 hold of. It has been repeatedly held that works 
 maintained or acts committed by legislative or other 
 public authority cannot be deemed nuisances. Har- 
 ris V. Tliomjjson (9 Barb. 364), and cases cited. But 
 how, if the legislature itself be generally considered 
 a nuisance? 
 
 In Gilbert v. Mickle (4 Sandf. Ch. 357), it was 
 held that a placard posted or paraded in a public 
 street, before the door of an auctioneer, cautioning 
 strangers to beware of mock auctions, constitutes a 
 nuisance remediable by injunction; and although, 
 as it appeared that this was done by direction of 
 the mayor, under authority of a statute, an injunc- 
 tion was refused, yet the court intimated that if the 
 complainant were innocent he might have a remedy 
 at law, or, at worst, by an appeal to the legislature 
 to abolish the obnoxious statute. To say that a 
 man's lawful business could be broken up by such 
 an act, and he be left substantially remediless, 
 seems a mockery of justice, and would justify the 
 auctioneer in knocking down the intruder. 
 
 Again, as it is not lawful to post a person in the 
 street to warn away a crowd from an individual's 
 premises, so it is unlawful to station one to attract 
 a crowd to a person's premises, to the inconvenience
 
 148 NUISANCE. 
 
 of the traveling public. It is even unlawful for a 
 person so to conduct on his own premises as to at- 
 tract a crowd upon the sidewalk so as to obstruct 
 the public passage. So it was held in Rex v. Car- 
 lile (6 C. and P. 627), .that if a party having a 
 house in a street, exhibits effigies at his windows 
 and thereby draws a crowd to look at them, which 
 causes the footway to be obstructed so that the pub- 
 lic cannot jsass, as they ought to do, this is an in- 
 dictable nuisance, and it is not at all essential that 
 the effigies should be libelous. Mr. Carlile was a 
 gentleman of a playful but withal rather satirical 
 fancy, who kept a book shop. Having been dis- 
 trained on for the non-payment of a church rate, he 
 placed in one of his windows an effigy of a bishop of 
 the established church, inscribed " Spiritual Bro- 
 ker," and in another window a figure of a man 
 in ordinary dress, inscribed " Temporal Broker." 
 These figures attracted crowds of people to gaze at 
 them, on Sundays as well as secular days, and the 
 sidewalks were obstructed so that persons were 
 forced to walk in the carriage-way. The defendant 
 afterward added a third figure, that of the devil 
 Avith a pitchfork, the arm of the bishop being 
 tucked into that of the devil. He was indicted 
 separately for the original effigies and for the Sa- 
 tanic addition. It was proved that pockets had 
 been picked in the crowd. Mr. Harris, a neighbor- 
 ing tradesman (the husband, possibly, of the fabu- 
 lous "Betsy"), swore that the crowd consisted of 
 " the lowest of the low " — so low in fact that they 
 had lowered his cash receipts 3/. per day. Mr. 
 Chandler, proprietor of the Portugal hotel, opposite
 
 NU1SA.NCE. 149 
 
 defendant's shop, testified that the crowd standing 
 over his area gratings darkened his kitchen so that 
 the servants were obliged to burn candles all day; an 
 injury which of course would be naturally uppermost 
 in the mind of a chandler. Against this array of 
 government, church and trade, Mr, Carlile defended 
 himself with great humor and ability, pleading his 
 own cause. He urged that no man should be 
 blamed for endeavoring to attract j^eople to his 
 shop. He insisted that the crowd was not so great 
 as that when his majesty goes to the theater or to 
 open Parliament; and inquired, ''why do we pay 
 for situations and disburse large sums of money an- 
 nually in Fleet street, if it is not to have the oppor- 
 tunity of putting things in our windows to attract 
 the attention of the customers?" He claimed that 
 Mr. Gray was as fairly indictable for obstructing 
 the street by means of his coach office. He referred 
 to the two effigies formerly at St. Dunstan's church, 
 which struck the quarters of the hour, attracting 
 crowds every fifteen minutes, and complained that 
 he was indicted for causing seventy jDersons to look 
 at his effigies. "I would ask," he continued, 
 "why ought not the Lord Mayor to be indicted for 
 the crowd that he attracts on the 9th of November 
 every year? and if Bartholomew Fair is allowed in 
 September, I ought not to be indicted for exhibit- 
 ing effigies in October; and so far from there being 
 any thing necessarily improper in effigies, the fig- 
 ures of Gog and Magog used to be carried in the 
 civic procession. It is said that the effigies exhib- 
 ited by me are libelous. They are fair figures, and 
 as good as I could have made; one of them is a fair
 
 150 NUISANCE. 
 
 representation of a bishop; and they were meant to 
 denote that the church, which is represented by tlie 
 bishop, is not supported voluntarily, but by the 
 law, which is represented by the broker." At this 
 point, the reporter observed, rather acutely, that 
 *'Mr. Carlile did not, throughout his defense, 
 make any remark or observation on the figure of 
 the Devih" Mr. Carlile continued, that illumina- 
 tions, military movements, and the learned judges 
 when they go in state to St. Paul's, all attract 
 crowds, and concluded by remarking that if his of- 
 fense was indictable, "the beautiful daughter of 
 Mr. Very might equally have been charged with be- 
 ing an indictable nuisance." This reference is ex- 
 plained by the reporter, who says that Mr. Very 
 was a confectioner in Eegent street, who had a 
 daughter who attended to his shop, who was so 
 beautiful that a crowd of three or four hundred 
 persons used daily to assemble and stand at his shop 
 windoAV for the purpose of looking at her. Police 
 officers were obliged to be in constant attendance 
 before his house, and the inconvenience was so 
 great, both to Mr. Very and his neighbors, that he 
 was obliged to send his daughter out of town. But 
 all this availed not to the defendant. Judge Park 
 replied that one nuisance does not justify another, 
 and in this, he remarked, "the learned persons who 
 sit beside me agree with me." He evaded the case 
 of the prosecution of the judges by saying that the 
 crowd move with it. Lord Mayor's day is but one 
 day in the year, but if it lasted from October to 
 December, he should say it ought to be put a stop 
 to. As to Bartholomew Fair being a nuisance, he
 
 NUISANCE. 151 
 
 was inclined, from what he had heard of it, to sus- 
 pect that the defendant was right. (Perhaps the 
 learned judge did not know that John Locke visited 
 that place, and that Lady Rachel, " that sweet saint 
 who sat by Russell's side," and whose memory 
 ought to be sacred to every lawyer, once wrote he]* 
 husband that her sister had. just returned from 
 Bartholomew Fair, and ''stored us all with fair- 
 ings.") The jury brought the defendant in guilty, 
 sentence was suspended, he took down the offensive 
 figures, and in the end was fined 40s. Now Avhat 
 can the ladies hope for after this case? It is even 
 doubtful, we see, whether their beauty would save 
 them, for if the beautiful Miss Very had remained 
 in town dealing forth the sweets of her father's 
 shop, we rather think something would have been 
 devised to keep the streets clear. 
 
 A very recent case on this subject is Fairbanks v. 
 Kerr (70 Penn. 86; 10 Am. Rep. 664). Mr. Fair- 
 banks, feeling inspired to make a political speech, 
 and not finding any eligible stump, mounted a pile 
 of flag stones belonging to the plaintiff, and pro- 
 ceeded with his address. A crowd assembled, and 
 in their eagerness to array themselves upon the 
 speaker's platform, some of them standing upon 
 several of the projecting stones, broke them. The 
 court held that the act of making a speech in a pub- 
 lic street, although not a nuisance 2^er se, may be- 
 come a nuisance by obstructing the public highway, 
 and that in this case the question whether the de- 
 fendant's act was the proximate cause of the injury, 
 was for the jury. The judge observes: "A street 
 may not be used in strictness of law for public
 
 152 KTISAXCE. 
 
 speaking, even preaching or jDublic worship; or a 
 pavement before another's house may not be occu- 
 pied to annoy him." 
 
 It is gratifying to learn that a person sick of an 
 infectious or contagious disease, in his own house, 
 or in suitable apartments at a public hotel or board- 
 ing-house, is not a nuisance. Boom v. Utica (2 
 Barb. 104) holds this, and illustrates the eeliness 
 of the public. The plaintiff was lessee of premises 
 from the defendants, at an annual rent of $10. 
 Without his consent, some aldermen, who, he 
 claimed, acted under authority of the defendants, 
 put into an old house on the premises a family sick 
 with the small-pox, removing them from a hotel, 
 under the sanction of the city charter, which au- 
 thorized the abating and removing of nuisances. 
 The plaintiff was prevented from the enjoyment of 
 the lot, for the purpose of pasturage and cultiva- 
 tion, because it was deemed dangerous to approach 
 the house under the circumstances. Perhaps he 
 feared that his cows would take the disease. A 
 'referee gave him 875 damages. The report was set 
 aside on the grounds that the common council had 
 no power to authorize the act complained of, and 
 never, in fact, did authorize it. But the court inti- 
 mate that the city's agents did wrong in taking the 
 family from the hotel, and in this connection hold 
 that being sick of small-pox at a hotel does not ren- 
 der one a nuisance subject to ''removal." Jenner- 
 ally this doctrine will be approved. 
 
 But a person is indictable for ''unlawfully and 
 injuriously carrying a child infected with small-pox 
 along the public highway." Rex v. Ventandileo (4
 
 NUISANCE. 153 
 
 M. and S. 73). This must be on the ground that 
 it is unlawful to set a nuisance on foot. 
 
 What would the gentle author of " The Village 
 Blacksmith" say, if he knew that it had been 
 deemed necessary to decide that a court of chancery 
 would not restrain the erection of a blacksmith's 
 shop in a small village, on the averment that it 
 would be a nuisance from the danger of fire which 
 it would create? But this was done in Ray v. 
 Lynes (10 Ala. 63). It is quite possible that the 
 chancellor's judgment was influenced by his recol- 
 lection of the picture drawn by the poet: 
 
 " And children, coming home from school. 
 Look in at the open door ; 
 They love to see the flaming forge. 
 
 And hear the bellows roar, 
 And catch the burning sparks that fly 
 Like chaff from the threshing floor." 
 
 And the poet, in return, would say: 
 
 Thanks, thanks to thee, my worthy judge, 
 
 For the lesson thou hast taught ; 
 In no contempt of poesy 
 
 Are your decisions wrought ; 
 At length I find one lawyer 
 
 Who's not a nuisance thought 
 
 20
 
 154 THE IDIOCY OF MARRIED AVOMEX. 
 
 THE IDIOCY OF MARRIED WOMEN. 
 
 The metamorphosis which marriage works upon 
 woman is one of the funniest phases of the law. I 
 speak of the common law, unaffected by any of the 
 recent statutes which have wrought such radical 
 changes in the marital relations. The discontented 
 ladies who deliver public lectures do not see much 
 fun in this. To them, the process by which, contrary 
 to the operations of nature, the beautiful butterfly 
 of the single woman degenerates into the grub of the 
 wife is a hideous reality. But to me there is some- 
 thing ineffably funny about it. A man will sigh and 
 fawn around a woman for a term of years, celebrate 
 her unparalleled virtues and wisdom in bad verses, 
 lose flesh and spirit if she frowns, kneel to her as the 
 Hindoo to his idol, and grovel in utter abasement 
 before her conceded superiority; and then, when 
 he is permitted to put the wedding ring on her finger, 
 as if by magic change, she grows imbecile and idiotic, 
 unable to act and judge for herself ; loses her right to 
 control her property or earnings, and becomes, like 
 an infant, utterly irresponsible for every th ing she 
 may have said or done. No, not everything; if she 
 has done any thing worthy of prison or hanging, the 
 law deems her of sufficient mental capacity to an- 
 swer for that, but adjudges the husband the vica- 
 rious sufferer for every thing else. What a fall from 
 
 " A perfect woman, nobly planned, 
 To warn, to comfort, and command ! " 

 
 THE IDIOCY OF MARRIED WOMEN. 155 
 
 It would seem that some commentator during all 
 these ages would have been struck by the absurdity 
 of this state of affairs. But, as to one in a dream, 
 the most ridiculous occurrences seem consistent and 
 natural, so among the law-writers this phase of law 
 has never, until very recently, excited any surprise, 
 but has been spoken of as gravely as the monks of 
 the middle ages narrated the legends of the church. 
 In regard to this miraculous metamorphosis, how- 
 ever, Byron, in a new edition abour to be issued by 
 Mrs. Stowe, with adaptations for family reading, 
 will probably cause Childe Harold to observe: 
 
 The tune is changed ; and such a change ! oh law 
 And legislators, ye are wondrous strong ! 
 
 And ugly in your strength as was the jaw 
 Of ass in hands of Sampson ; far along 
 
 From page to page, the sheep-clad books among, 
 Sticks the huge blunder; not in lonely bravery, 
 
 But every sage repeats the hardy wrong ; 
 And only Schouler comments on the knavery 
 Of Coke & Co.'s belief in woman's slavery. 
 
 But, funniest of all, the husband does not seem 
 conscious of the degeneracy of his idol. If, on the 
 morning next succeeding his wedding night, he 
 should find his blonde bride converted into a black- 
 amoor, we can imagine that he would let the world 
 hear of it. But to discover that the partner of his 
 bosom and the prospective mother of his children 
 has, in one night, become an irresponsible and un- 
 judging idiot, does not disturb his composure a 
 whit. Marriage has elevated him from the attitude 
 of suppliant into that of a sovereign. He is now. 
 Bays the law, dignior persona. Let us imagine this
 
 156 THE IDIOCY OF MARRIED WOMEX. 
 
 superior person before marriage thus addressing 
 the young lady, whose golden, raven, or ruby hair 
 (as the case may be) rests confidingly on his manly 
 shoulder: "My heart's adored, I know the law sets 
 me a hard task, but, for your sweet sake, I do not 
 shrink. Your property -will become mine, it is 
 true, and you will be dependent on my bounty for 
 every penny that finds its Avay into your jDurse; if 
 you make any money by embroidery, or music les- 
 sons, or keeping boarders, that, too, will be mine; 
 and if an}^ of your relatives should hereafter will 
 you any thing, I shall be forced to confiscate that 
 also. But just see, my only love, what a price I 
 must pay for these insignificant privileges. As you 
 have had a rich and indulgent father, of course you 
 have contracted numerous debts; these I must can- 
 cel. You know, my sweet, you have a violent tem- 
 per and enormous muscular power, and have been 
 guilty of a great many slaciders and assaults and 
 batteries; after we are married, I may be mulcted 
 in damages for these. You see what risks I run. 
 I don't know that you have ever murdered any- 
 body; but if you have, the law generously permits 
 me to make an exception in your favor, and allow 
 you instead of myself to be hanged, and I do it with 
 my whole heart." By such a declaration the young 
 man would probably not greatly commend himself 
 to the young lady; and yet, if she should go to her 
 legal adviser, he would instruct her that such is the 
 theory of the law. And as Mark Tapley would say, 
 ''Isn't this jolly?" 
 
 This idiocy of the wife is probably founded on 
 the maxims of Noy, Selden, and those other humor-
 
 THE IDIOCY OF MARRIED WOMEN'. 157 
 
 ists who laid the foundations of our laws. Noy 
 says: "All that a woman hath appertaineth to her 
 husband; " '' The will of the wife is subject to the 
 will of the husband." And good old Selden takes 
 even a more pleasant view of these matters. He 
 says: "'Tis reason a man that will have a wife 
 should be at the charge of her trinkets, and pay all 
 the scores she sets on him. He that will keep a 
 monkey, 'tis fit he should j)ay for the glasses he 
 breaks. " 
 
 But lest we should grow serious over this topic, 
 and render ourselves the prey of the strong-minded 
 of the fair sex, let us refresh ourselves with two or 
 three cases illustrative of the doctrine which we 
 have stated. 
 
 The husband is civilly responsible at common 
 law for the wrongs of the wife committed before 
 marriage. He takes her as one buys an unwar- 
 ranted horse, with all her faults. She may prove 
 kind in harness, or she may not. This doctrine is 
 treated with exquisite satirical humor by Judge 
 Brackenridge in Haivh v. Harmon (5 Binney, 47). 
 This case decides that an action will lie against 
 husband and wife for slanderous words spoken by the 
 wife before marriage. In respect to this class of 
 cases, it must be observed that if the husband 
 should die before the verdict, the wife, being re- 
 stored to her state of moral responsibility, contin- 
 ues alone liable. But let us listen to this funny 
 judge: *'It would certainly be a circumstance fa- 
 vorable to the entering into the marriage state, and 
 ' a consummation devoutly to be wished,' on the 
 part of females, if it afforded them a sanctuary from
 
 158 THE IDIOCY OF MARRIED AVOMEX. 
 
 all by-gones of defamation, or other wrongs to soci- 
 ety; * * * it might facilitate the leading to 
 the altar, in a case where a young lady had indulged 
 herself more freely than was strictly justifiable in a 
 conversation, or had transgressed the grounds of a 
 molliter manus imposuit, and committed an assault 
 and battery. ''It is imj)ossible for me to say that 
 on espousal a damsel is not taken with all her slan- 
 ders on her head, and all her trespasses, and that 
 the haron is not answerable." ''Nor do I know 
 that it can well lie in the mouth of the baron to 
 complain, since he cannot but be considered as a 
 party to the act of her withdrawing on her part, 
 and the taking shelter under the marriage state; 
 more especially in the action on the case for a 
 breach of promise of marriage; because the success- 
 ful lover cannot but be considered as a party to the 
 fcedifragium j for it cannot but be presumed that 
 but for him there would have been no jilting." 
 *' In all affairs of human life, the sweet and the 
 sour must be taken together; qtii sentit commodum, 
 sentire debet et onus. According to the marriage 
 ceremony, she must be taken for better or worse; 
 though I will not say that in drawing up the form 
 there was a reference to this princij^le of law; but 
 the words are broad enough to comprehend it, and 
 it would look like a subtilty to explain away and 
 exempt it. But the notion of marrying a lady in 
 her shift, free from incumbrances, may be set down 
 among vulgar errors. The law being settled on 
 this head, if there was any doubt of it before, it 
 may lead to greater caution, and put the inexpe- 
 rienced upon inquiry as to the conduct of the ina-
 
 THE IDIOCY OF MARRIED WOMEN. 159 
 
 morata before the nuptials; and may lead tlie female 
 to a single attention to her morals, as wrongs and 
 breaches of the peace may prevent her matrimony. 
 It is true, the husband may with more propriety 
 call her his dear wife, if some of the draw-backs 
 should come upon him, and with a safe conscience 
 he may use the term as an equivoque, even if his af- 
 fections should not be the strongest after marriage. 
 By the common law, also, it is allowable to give due 
 chastisement, which, I take it, may extend to Avhat 
 was done before marriage as well as after, and to 
 take personal satisfaction; though on this head I 
 will not undertake to be as clear as I am on the 
 principal point." 
 
 (This case is so irresistibly humorous that Mr. 
 Schouler, it seems, deemed it unworthy of insertion 
 in a serious law book, and omitted it from his ex- 
 cellent work on the "Domestic Eelations.") 
 
 The law recognizes the inability of the wife to 
 judge of what is best for herself to eat and drink, 
 and will punish, by damages awarded to the hus- 
 band, any one who takes advantage of her idiocy in 
 this respect. This principle is well illustrated in 
 the case of Hoard v. Peck (56 Barb. 202), in which 
 it was held that an action can be maintained by a 
 husband against a druggist to recover damages for 
 selling to the plaintiff's wife, secretly, from day to 
 day large quantities of laudanum to be used by her 
 as a beverage, and which are so used by her to the 
 defendant's knowledge, without the knowledge or 
 consent of the husband; the defendant well know- 
 ing that the same was injuring and impairing her 
 health, and concealing the fact of such sales and
 
 160 THE IDIOCY OF MARRIED WOMEIST. 
 
 the use thereof from the plaintiff; in consequence 
 of which use by her the wife became sick and ema- 
 ciated, and her mind was affected, so that she was 
 unable to perform her duties as such wife, and her 
 affections became alienated from her husband, and 
 he lost her society, and was compelled to expend 
 divers sums of money in medical and other attend- 
 ance upon her. This is truly a rigbteous decision. 
 Let tbe apothecaries look out for themselves. If 
 this cause is sustained, 
 
 " Not poppy, nor mandragora, 
 Nor all tbe drowsy syrups of the world, 
 Can ever med'ciue them to that sweet sleep 
 Which yesterday they owned." 
 
 Next, we shall come down on tbem for selling 
 our wives patent medicines and female specifics. 
 Then we shall extend the doctrine as against other 
 trades and occupations. The corset-maker shall 
 suffer, and the shoemaker who puts small heels on 
 our wives' boots. In those States where lotteries 
 are lawful, let the lottery dealers beware of selling 
 too many tickets to married women. I am by no 
 means certain that the doctrine may not be reason- 
 ably invoked against revival preachers, who drive 
 weak women mad by powerful discourses, and against 
 the advocates of woman's rights, who alienate our 
 wives' affections from us by holding up the glitter- 
 ing prospect of the ballot. What, then, shall we 
 say of that wretched Judge Morgan, who dissented 
 from the opinion of the majority in this case? He 
 said: "The defendant was guilty of violating no 
 law in selling her the opium." "The wife was
 
 THE IDIOCY OF MARRIED WOMEI^. 161 
 
 under no legal restraint, nor could she be put under 
 any legal restraint, not to use opium. If there was 
 any way known to the law to enforce the social and 
 moral obligations which the husband owes to the 
 wife, or the wife to her husband, in respect to the 
 use of hurtful stimulants, there would be more oc- 
 casion for Avives to restrain their husbands, than 
 for husbands to invoke the aid of the law to restrain 
 their wives." ''A wife has no legal control over 
 her husband, nor has he any legal control over his 
 Avife if she chooses to indulge in the improper use 
 of opium." ''The plaintiffs wife was responsible 
 to no human tribunal for her conduct." " There is 
 in this country, where the ancient chivalry never lit- 
 erally prevailed, an increasing tendency in the law 
 to look upon a woman as a being possessed of a hu- 
 man soul, like man, and accountable like him to a 
 higher power." "'The wrong in this case, if it 
 could be regarded as a legal wrong, was committed by 
 the wife of the plaintiif, and not by the defendant." 
 And various other unfeeling remarks quite at va- 
 riance with the sentimental and imaginative morality 
 of his brethren. To be sure, it is difficult to see how 
 an action will lie for depriving the husband of that 
 which, under our laws, he is no longer entitled to 
 demand against his wife's will, viz. : his wife's soci- 
 ety and services; but, probably the gist of the ac- 
 tion was the " emaciation." I know of no law justi- 
 fying any one in depriving the husband of his due 
 proportion of conjugal avoirdupois. The scales of 
 justice cannot be put to better use than in ascer- 
 taining the amount of the husband's loss in this re- 
 gard, and the verdict should be regulated by the 
 21
 
 162 THE IDIOCY OF MARRIED WOMEN. 
 
 degree of corporeal depletion. But let Judge Mor- 
 gan beware. He may be a very good man as judges 
 go, but if lie persists in uttering sucli absurd and 
 revolutionary sentiments as the above, it is possible 
 that he may disappear like that gentleman of the 
 same name, who incurred the hostility of the ma- 
 sons a generation ago. 
 
 But it seems that the law does not recognize the 
 maxim, ''what is sauce for the goose is sauce for 
 the gander." The husband has an action again.<t 
 third persons for depriving him of his wife's society 
 and services, but the wife has no corresponding 
 action. If a wife has a drunken husband who beats 
 her, and whom she supjDorts, and she, by the aid of 
 a '"true apothecary," seeks to drown her sorrows in 
 opium, the husband has an action against the apoth- 
 ecary therefor; but the. wife, at common law, has 
 no action against the rumseller who debauches her 
 husband and deprives her of his " society and ser- 
 vices." 
 
 This doctrine is capable of further extension. 
 Admitting that the wife has no legal claim to the 
 husband's society or services, still, the husband, as 
 we have seen, is civilly responsible for his wife's 
 debts contracted and wrongs committed before mar- 
 riage. The wife has a right to rely, in forming her 
 matrimonial schemes, on this responsibility. Has 
 she not, therefore, an action against any one who 
 impairs it — ought she not to have, I mean ? Let 
 us imagine a case: Jane owes a debt; she marries 
 John; the creditor sues them both; on account of 
 this trouble, John falls into dissipated courses at a 
 neighboring tavern, and pending the action he dies
 
 THE IDIOCY OF MARRIED WOMEJs\ 163 
 
 oi delirinm treme^is ; Jane is now alone liable; 
 judgment proceeds against her, and she has to pay 
 it. Now, had it not been for that tavern-keeper, 
 John would not have got drunk, nor died pending 
 the action, but judgment would have been enforced 
 against his property. Jane has thus suffered a pe- 
 cuniary wrong at the hands of the tavern-keeper. 
 Ought she not to have an action against him? De- 
 cidedly she ought, if this opium case is to be sus- 
 tained, on the principles of matrimonial comity. 
 It lias been argued that it is a mercy to persons 
 accused of crimes to prohibit them from testifying 
 on their own behalf ; for if they cannot testify, 
 they cannot hurt themselves. The same tender- 
 ness would prohibit the Californian miners from 
 carrying rifles to keep oft' the bears, lest now and 
 then they might kill themselves Avith their own 
 weapons. On a like principle, it must be admitted 
 that the idiocy of married women is frequently 
 beneficial to them; as, for instance, in those cases 
 of criminal accusation where the law presumes that 
 they acted under compulsion of the husband. This 
 reasoning, however, would apply all the more 
 strongly to them, if they were judicially declared 
 incompetent, and placed under the charge of custo- 
 dians. And yet, perhaps, it would hardly be desira- 
 ble to do this. The point is full of difficulty. A 
 case illustrating the principle spoken of is Peoiile v. 
 Toiunsend (3 Hill, 482), which held that a married 
 woman does not know enough to commit a nuisance 
 on her own land. " During coverture, the husband 
 has the control of the wife's estate, and if lie creates
 
 164 THE IDIOCY OF MARRIED TV0ME:N. 
 
 a nuisance on her land, she cannot be made to an- 
 swer criminally for the offense." 
 
 We see, then, how tender and considerate the 
 common law is toward married women. It regards 
 them as adult babies. How foolish of the women 
 to ask to be emancipated from this state of pleasant 
 irresponsibility! No doubt, after a few more years' 
 experience of the married women's acts so much in 
 vogue, our wives will be coming back and beseech- 
 ing to be re-instated in their happy thraldom, just 
 as the southern bondmen, who, during the days of 
 negro slavery in this country, were emancipated by 
 the mistaken kindness of their masters, were cer- 
 tain to return in a little while begging for the cat- 
 o'-nine tails and pickle. And how grateful wives 
 ought to feel toward their husbands at common law, 
 and how sorry when they are gone ! I dare say they 
 do, and that if we would allow them, there would 
 be a general rush on the part of widows to immo- 
 late themselves on the funeral pyres of their de- 
 ceased lords. How wicked, then, of Mr. Schouler, 
 in speaking of the common-law obligation of wid- 
 ows to bury their deceased husbands, to say: " Why, 
 it may be asked, should a woman answer for the in- 
 digence of one whose lawful privilege it was to 
 strip her of her own means of support?" Nor can 
 we understand the court in Chappie v. Cooper (13 
 M. and W. 252), when, in speaking of the same ob- 
 ligation, they put it on the ground that the burial 
 is "a benefit and comfort to herself." Surely, 
 they cannot mean to insinuate that a common-law 
 wife would take pleasure in attending the funeral 
 of her husband!
 
 THE ECCLESIASTICAL COUKTS. 165 
 
 THE ECCLESIASTICAL COURTS. 
 
 ) 
 
 There is no reading more humorous than the 
 reports of the ecclesiastical cases, as given in the 
 columns of the London Laio Journal reports by 
 those facetious gentlemen, George Henry Cooj)er 
 and George Callaghan, Esquires, barristers at law. 
 We have nothing like them among ourselves, owing 
 to the infidel separation of church from state, which 
 prevails to some extent in this country. Let it not 
 be understood, however, that we are without the 
 blessings of ecclesiastical councils. We have them, 
 but they are a law unto themselves, and our law 
 courts are forced to get on as well as they can with- 
 out the presence or countenance of the clergy. 
 Perhaps our immunity is not to be regretted, for of 
 all the assemblies of mankind upon the face of the 
 earth, from the earliest days down to the present 
 time, the most reckless and disregardful of the laws 
 of God and man is an assembly of clergymen. An 
 assembly of women is conservative in comparison. 
 Even a moot court of school boys has more regard 
 for the rules of evidence. 
 
 The recent advent of ritualism in the English 
 church has given rise to considerable interference 
 on the part of the ecclesiastical courts, and I am not 
 sure but that it has demonstrated the utility of 
 such institutions. It is certain that a court of law 
 cannot be imposed on by such evasions as would
 
 166 THE ECCLESIASTICAL COURTS. 
 
 succeed in a clerical court ; and it is controlled by 
 legal rules of evidence and interpretation. Conse- 
 quently those English clergymen who have lately 
 gone into the millinery business, and have been 
 evincing an undue fondness for the ways of the 
 scarlet woman, are having a hard time of it before 
 the Lord High Chancellor and those other lords 
 who constitute the privy council, to say nothing of 
 the clear and inexorable logic of Dr. Phillimore, 
 dean of the court of arches. 
 
 The Eeverend Alexander Heriot Mackonochie, 
 clerk in holy orders in the church of England, and 
 incumbent of the parish of St. Albans, seems to be 
 a tough customer. He was charged by a round- 
 head fellow, named John Martin, with having, dur- 
 ing the prayer of consecration in the order of the 
 administration of the holy communion, knelt or 
 prostrated himself before the consecrated elements, 
 and also, with using lighted candles on the com- 
 munion table during the celebration of the holy 
 communion, when such candles were not needed for 
 the purpose of giving light ; also, with elevating 
 the paten and the cup above his head, with using 
 incense, and with mixing water with the wine. 
 The court below " monished " him in respect of all 
 these enormities, save the kneeling and the candles, 
 but declined to give costs. 37 L. J. R. (N. S.) Ec. 
 Cas. 17. From the refusals to monish, the jDuritan 
 Martin appealed to the privy council, mainly, it is 
 to be suspected, on the question of costs. The re- 
 port of the decision on the appeal is full of good 
 reading. 38 L. J. E. (N. S.) Ec. Cas. 1. The 
 court held, first, that the priest is intended by
 
 THE ECCLESIASTICAL COURTS. 167 
 
 the rubric to continue in one position during the 
 prayer of consecration, and not to change from 
 standing to kneeling, or vice versa ; and that he is 
 intended to stand and not kneel. Second, that the 
 candles, as a ceremony, are unlawful, having been 
 abrogated. Thirdly, that the lighted candles are 
 not ornaments, within the meaning of the rubric. 
 Counsel struggled hard for the candles, claiming 
 that they had been used ever since the year 1100, 
 but the court held the doctrine of ancient lights in- 
 applicable to the case. And their lordships, with 
 due regard to the dignity of the law, advised 
 Her Majesty that the clergyman should pay the 
 round-head's costs. 
 
 One would suppose that the Eeverend Alexander 
 Heriot Mackonochie was now pretty stringently tied 
 up, but " for ways that are dark and for tricks 
 that are vain," this particular clergyman is "pecu- 
 liar." He ceased to " elevate the elements above 
 his head," but merely elevated them as high as his 
 head ; he put out the candles just before commu- 
 nion, still allowing them to stand ; and instead of 
 kneeling, he bent one knee, occasionally touching 
 the ground with it. The hard-headed Mr. Martin 
 followed him up, and moved the privy council to 
 enforce obedience to their monition. 39 L. J. E. 
 (N. S.) Ec. Cas. 11. The ingenious reverend gen- 
 tleman made a very pretty argument, in person, in 
 his own defense, which deserves rehearsing, as to 
 the kneeling, at least. He says: "It is defined in 
 Bailey's Dictionary, 'to bear oneself upon the 
 knees.' I maintain, as regards the charge of kneel- 
 ing, that kneeling is a distinct posture. The body
 
 168 THE ECCLESIASTICAL COURTS. 
 
 must rest upon the knees. It is true, Dr. Johnson 
 gives a different definition, but all his four exam- 
 ples fall within Bailey's definition; ' to perform the 
 act of genuflexion,' 'to bend the knee.' 
 
 ' When thou dost ask my blessing, I'll kneel down, 
 And ask of thee forgiveness.' — King Lear. 
 
 ' Ere I was risen from the place that shewed 
 My duty, kneeling,' etc. — Ihid. 
 
 'A certain man kneeling down.' Matt, xvii, 14. 
 'At the name of Jesus every knee should bow.' 
 Phil, ii, 10. Bowing the knee is a distinct act 
 from kneeling. Bishop Taylor says, 'As soon 
 as you are dressed kneel down.' Guide to Devo- 
 tion. In every instance in the prayer book, 
 ' kneeling ' is used to express the going upon the 
 knees. Two things are necessary to a kneeling, 
 first, that the body should rest upon the knees; sec- 
 ondly, that it should be for an appreciable time." 
 He did not claim that his genuflexions were the re- 
 sult of any weakness in the knees, but boldly said, 
 " I bend the knee as an act of reverence." This, of 
 course, put the matter beyond any doubt, and in 
 respect to the kneeling, the court held that his pe- 
 culiar evasion left him but one leg to stand on in 
 physics, and none at all in law, and monished him 
 not to do so any more. In respect to the candles, 
 they expressed their disapprobation of the trick, 
 but held that the reverend blower-out was techni- 
 cally within the monition. As to the elevation of 
 the elements, the same may be said, the court hold- 
 ing that the point was not properly before the court, 
 but declared that thev should hold, if it ever be-
 
 THE ECCLESIASTICAL COURTS. 169 
 
 came proper for them to do so, that *' any elevatiou, 
 as distinguislied from the raising from the table," 
 is unlawful. One would suppose that, having cor- 
 nered him on the charge of kneeling, the court 
 would have shown some resjject for their own de- 
 crees by punishing the infringement, but this cleri- 
 cal flea was not so easily caught. He had, like the 
 jjrudent man, foreseen the evil, and hidden himself 
 behind an affidavit that "he had never intention- 
 ally or advisedly, in any respect, disobeyed or sanc- 
 tioned any practices contrary to the provisions of 
 the monition;" i. e., he supposed he had success- 
 fully evaded them. Their lordships thought them- 
 selves bound, as christian gentlemen and lawyers, 
 to give the affiant the benefit of this christian-like 
 and gentleman -like, if not lawyer-like, affidavit, 
 and so declined to punish him further than " to 
 mark their disapprobation of such a course of pro- 
 ceeding " — to wit, the kneeling — " by directing that 
 he should pay the costs of the present application," 
 which, after all, I dare say, is no light punishment 
 in England. This ingenious clergyman, who thought 
 to evade the decree of the court against kneeling by 
 bending one knee only, should have remembered the 
 fate of " Peeping Tom," of Coventry, that 
 
 " one low churl, compact of thankless earth, 
 The fatal by-word of all years to come," 
 
 who, when Lady Godiva was riding by, "clothed 
 on with chastity," risked one eye at an augur hole, 
 and whose 
 
 " eyes, before they had their will, 
 
 Were shriveled into darkness in his head, 
 
 And dropt before him." 
 
 22
 
 170 THE ECCLESIASTICAL COURTS. 
 
 But if he had possessed that acquaintance with 
 the scriptures which I have (through the medium, 
 in this instance, of Webster's Unabridged Diction- 
 ary), he would, on leaving the presence of this ty- 
 rannical court, have hurled at them this parting 
 text: " And he kneeled doiun and cried with a loud 
 voice, Lord, lay not this sin to their charge." Acts, 
 vii, 60. 
 
 But we have not yet done with this reverend cav- 
 iler. In November, 1870, the privy council were 
 invoked to jounish him for fresh disobedience to the 
 monition, in respect to prostration and elevating 
 the paten and cup. It was alleged and admitted 
 that he had removed the wafer bread from the 
 paten, and elevated the bread, instead of the paten; 
 and it appeared that the upper part of the cup was 
 elevated above the head. The accused claimed 
 that the elevation was accidental and unintentional; 
 but as he admitted that he had carefully scanned 
 the monition with the determination to yield only a 
 literal obedience to its precise terms, the court held 
 that he must suffer for even a literal violation, on 
 the principle that they that take the sword shall 
 perish by the sword. The accused, also, having 
 met with such bad fortune in his genuflexions, noti- 
 fied his curates that he intended thenceforth to bow 
 without bending the knee, at that part of the prayer 
 of consecration where he had formerly knelt, and 
 so, instead of kneeling, he made a low bow, and re- 
 mained in that position several seconds. This the 
 court held to be an unlawful prostration of the 
 body. He was amerced in costs, and suspended 
 from office for three months, and thus left with
 
 THE ECCLESIASTICAL COURTS. 173 
 
 nothing to hold np but his hands, and with full lib- 
 erty to bow his head if he had any shame left. 
 
 In January, 1870, "the office of the judge was 
 promoted " — whatever they may be — "by the bish- 
 op of Winchester against the Eev. Richard Hooker 
 Edward Wix, vicar of St. Michael and All Angels, 
 Swanmore, in the Isle of Wight." The vicar was 
 charged with ecclesiastical offenses, namely, with 
 having caused two lighted candles to be held on 
 either side of the priest, while reading the gospels, 
 and with having lighted candles on the communion 
 table, or on a ledge or shelf immediately above it, 
 having the appearance of being affixed to and form- 
 ing part of it, during the celebration of the holy 
 communion, at times when they w^ere not needed 
 for light; also, with using incense, etc., etc. In 
 respect to the first charge, the vicar admitted and 
 defended the practice, but the court held it unlaw- 
 ful, and "monished" him. In regard to the sec- 
 ond charge, Wix becomes a dangerous rival to 
 Mackonochie, in the science of evasion, for al- 
 though he admits the lighted candles, yet he says 
 they were not on the communion table, on the ledge 
 or shelf behind it, but on a separate table, called a 
 re-table, not appearing to form a part of the com- 
 munion table. I think, on the whole, he is rather 
 superior to Mackonochie, for the latter had to put 
 his candles out just before communion, but Wix de- 
 fiantly kept his burning by means of the convenient 
 re-table. But it appearing in evidence that the 
 re-table was placed directly behind the holy table, 
 and had a shelf or ledge, which looked like a man- 
 tel-piece over the holy table, the court held that
 
 172 THE ECCLESIASTICAL COURTS. 
 
 this would not answer, and so the courc ordered 
 Wix snuffed out. As to the incense AVix claimed 
 that the censing was done only during the interval 
 between morning i)rayers and communion, accom- 
 panied by processions and tinkling of bells, and that 
 the censing was not within the prohibition of the 
 law, because it was not done during any service. 
 But the court thought there was no sense in this ar- 
 gument; Wix might as well claim that a slice of 
 ham is no part of a sandwich, because it is between 
 two slices of bread; and he was monished against 
 this practice also, and condemned to pay costs, 
 which last probably incensed him most thoroughly. 
 39 L. J. E. (N. S.) Ec. Cas. 25. 
 
 In the same report, at page 28, is found the case 
 of Elpliinstone v. Purclias, in which the matters of 
 vestments, mixing water with the wine, administer- 
 ing the bread in form of wafers, etc., were gravely 
 and elaborately considered. The defendant did not 
 appear, and so the plaintiff, who was a colonel in 
 the army, had a clear field. After eleven pages of 
 discussion and examination, Dr. Phillimore con- 
 cludes that Mr. Purchas might wear all the regalia 
 which he was accused of wearing, except "a cope 
 at morning or at evening prayer; also, with patches, 
 called apparel; tippets of a circular form; stoles of 
 any kind Avhatsoever, whether black, white or col- 
 ored, and worn in any manner; dalmatics and mani- 
 ples." The "biretta" or cap appeared to the doc- 
 tor ''as innocent an ornament as a hat or a wig, or 
 as a velvet cap. " Processions and incense were pro- 
 nounced illegal. Blessing the candles was forbid- 
 den. So, as to announcing "a mortuary celebra-
 
 THE ECCLESIASTICAL COURTS. 173 
 
 tion for the repose of a sister," and interpolating a 
 prayer for the rest of her soul. Wafers were not dis- 
 approved of, nor was mixing water with the wine, so 
 long as it was not done at the time of the celebration. 
 Placing on the holy table a veiled crucifix, and unveil- 
 ing it and bowing, and doing reverence to it, was 
 deemed objectionable. But liowers on the holy ta- 
 ble were approved. It was held, for the sake of 
 protestantism and good manners, that the priest 
 must not turn his back on his people, except dur- 
 ing proper prayers. It only remains to remark, 
 that placing a Sgure of the infant Saviour, with two 
 lilies on either side, and a stuffed dove, in a flying 
 attitude, over the credence and the holy table, re- 
 spectively, was reprehended. All this occupies 
 twenty-five double-columned pages of the report. 
 But on appeal, all the "eucharistic vestments," in- 
 cluding the innocent "biretta," were held unlaw- 
 ful, and the clergy were restricted to the poverty of 
 cope and surplice ; the use of the mixed chalice and 
 wafer bread was also pronounced illegal. 
 
 So much for rites and ceremonies. But when 
 we come to the efforts of the courts to keep the rit- 
 ualists straight in doctrinal matters, we are lost in 
 amaze. Take the case of Sheppard v. Beimett, for 
 instance. 39 L. J. E. (N. S.) Ec. Cas. 68. The 
 charge was, that the defendant inculcated the doc- 
 trine of the visible presence of our Lord in the 
 elements, and the adoration of the elements 
 themselves. The language used was : " I my- 
 self adore and teach the people to adore Christ, 
 present in the sacrament, under the form of bread 
 and wine, believing that under their veil is the
 
 174 THE ECCLESIASTICAL COURTS. 
 
 sacred body and blood of my Lord and Saviour Jesus 
 Christ." The language at first was, "to adore the 
 consecrated elements, believing Christ to be in them," 
 but this vi^as corrected as above. The court held 
 that this amended language does not necessarily im- 
 ply a belief in the actual presence, and an adora- 
 tion of the elements themselves. The words by 
 which it is preceded, however, Avould seem to ren- 
 der this judgment extremely charitable, to say the 
 least: *' I am one of those who burn lighted can- 
 dles at the altar in the day-time; who use incense 
 at the holy sacrifice; who use the eucharistic vest- 
 ments; who elevate the blessed sacrament." 
 
 If, after believing and doing so much, he does 
 not believe what he is accused of, he must be re- 
 markable. If a man should tell us, '' I am copper- 
 colored; I go nearly bare and paint my body, and 
 wear rings in my lips and nose; I live in a wigwam; 
 I sail in a birch bark canoe; my weapons are bow 
 and arrow, knife and club; I am in the habit of 
 scalping my enemies, and of getting intoxicated on 
 whisky; but I am not an Indian," the natural in- 
 quiry would be. What are you, then? And if you 
 should believe him, for the reason that a great 
 many other Indian disclaimants had told you the 
 same story, you would use exactly the reasoning 
 that Dr. Phillimore uses to arrive at his conclusion, 
 at the end of fifty-three jDages of fine print, in dou- 
 ble columns. Peter, the patron saint of all these 
 credulous theologians, persisted in denying Ms Mas- 
 ter, although his ^^sjjeech bewrayed him." The 
 learned Doctor hopes that nothing that he has said 
 may yet further tend to
 
 I 
 
 THE ECCLESIASTICAL COURTS. 175 
 
 " make this banquet prove 
 A sacrament of war, and not of love." 
 
 He says he does not sit "as a critic of style, or an 
 arbiter of taste, or a censor of logic," and has "not 
 to try Mr. Bennett for careless language, for feeble 
 reasoning, or superficial knowledge." And he con- 
 cludes that Bennett is saved from harm by the fact, 
 that, in sentencing him, he should be jDassing sen- 
 tence " upon a long roll of illustrious divines who 
 have adorned our universities and fought the good 
 fight of our church, from Eidley to Keble; from 
 the divine whose martyrdom the cross of Oxford 
 commemorates, to the divine in Avhose honor that 
 university has just founded her last college." And 
 he showed his leaning toward freedom of religious 
 opinion by making no order as to costs. I must do 
 the doctor the justice to say that he does not seem 
 to regret his enforced decision, and even cites the 
 decision of the privy council, that the words "ever- 
 lasting fire " might be treated by a clergyman as 
 not denoting the eternity of punishment. 
 
 But the humor of the matter consists in the 
 necessity of having a court to adjudge what relig- 
 ious opinions a man may or may not teach, and 
 what rites and ceremonies he may or may not ob- 
 serve. Of course it is the theory of government 
 that renders this necessary, but the humor of it is 
 none the less apparent on that account. If our 
 clergymen take leave of their senses, we soon find a 
 way to restore their wits — we cut off their tempo- 
 ral supplies. If we disagree with our clergyman, 
 we don't let him turn us out — we turn him out. 
 Our theory is that the clergy and the Sabbath are
 
 176 THE ECCLESIASTICAL COURTS. 
 
 made for man, not man for the clergy and the Sab- 
 bath. All judicial inquiries into one's religious 
 opinions and ceremonial preferences strike us oddly. 
 "We do not see, of course, why the Lord High Chan- 
 cellor should not be just as well invoked, at the 
 complaint of the Eoyal Geographical Society, to 
 monish a man against sajdng and publishing that 
 the world is flat, or, at the instance of Mr. Froude, 
 to warn a rival historian against pretending that 
 Henry VIII was not a conjugal saint. In short, af- 
 fairs proceed in this country upon the principle of 
 the menagerie keeper, who, when asked whether a 
 certain animal was a monkey or a baboon, replied: 
 "Whichever you please — you pays your money, 
 and you takes your choice." But in England you 
 pay your money and have no choice.
 
 TRADE-MARKS. 177 
 
 TRADE-MARKS. 
 
 One of the most fertile subjects of conversation 
 in the commercial world is the rascality of lawyers. 
 To hear the unanimous opinion of tradesmen one 
 would infer that, among the latter, at least, there 
 is no such thing as cheating one another; that 
 such is the purity of the atmosphere of trade, that 
 no merchant ever contrives to filch away another's 
 customers, and that one's ownership of his own is 
 universally respected. In spite of the bad odor in 
 which we are held by the mercantile world, we do 
 not remember of ever hearing ourselves accused of 
 stealing one another's signs, or forging one an- 
 other's handwriting, or resorting to any other mean 
 device to get business that does not belong to us. 
 I fear that so much cannot be said of our critics. 
 Here is an entire branch of the law devoted to the 
 subject of the protection of merchants against the 
 piracy of their fellows. One merchant imitates the 
 peculiar commodity or invention of another; the 
 law says he must not do this, and gives the latter 
 the privilege of affixing a peculiar mark upon it to 
 denote his proprietorship; the other then steals the 
 mark, too, and the law then punishes the latter in- 
 fraction. All this not only furnishes inevitable em- 
 ployment to those unprincipled lawyers, of whom 
 we started out to speak, but gives rise to a vast 
 amount of metaphysical and abstruse law-learning. 
 23
 
 178 TRADE-MARKS. 
 
 Out of this I propose to extract any alleviating 
 phases of humor that may not be altogether patent, 
 although the subject of investigation may be. 
 
 The poets have differed in their estimates of the 
 importance of a name. One asks, "What's in a 
 name? that which we call a rose by any other name 
 would smell as sweet;" and another talks about 
 ^'the magic of a name." But the experience of 
 practical men has demonstrated that Campbell is 
 right. The success of a book, a play, a commod- 
 ity, is very dependent upon its name, and the suc- 
 cess of men themselves is frequently hindered by 
 a ridiculous or common-place name. The only 
 man with a common name who ever achieved fame, 
 according to our recollection, was John Brown, and 
 even he would not, had it not been for the fortu- 
 nate circumstances of his failing in his enterprise 
 and being hanged. The modern novelists have 
 recognized "the magic of a name," and have named 
 their offspring in a way to excite curiosity and sur- 
 mise. Frequently their productions are named 
 without any regard to approjiriateness. Thus, 
 "Cometh up as a Flower," so suggestive of the 
 frailty of human existence, and which has accord- 
 ingly been bought by all the pious persons in the 
 land, turns out to be a very nasty tale of attempted 
 seduction. " Euskin on Types," it is said, was 
 once inquired for by a printer, and John Hill Bur- 
 ton tells a story of a sheep-breeder who went to a 
 hardware store to buy a "hydraulic ram" for the 
 improvement of his flock. But I am straying from 
 my subject. 
 
 It was formerly said that a trade-mark, to be en-
 
 TRADE-MARKS. 179 
 
 titled to judicial protection, must in itself indicate 
 the origin or ownership of the article to which it 
 belongs. This idea has been very materially modi- 
 fied by modern decisions. The rule is well stated 
 by Lord Langdale in Perry v. Truefitt (6 Beav. 
 56): "A man may mark his own manufacture, 
 either by his name or by using for the purpose any 
 symbol or emblem, however unmeaning in itself; 
 and if such symbol or emblem comes by use to be 
 recognized in trade as the mark of the goods of a 
 peculiar person, no other trader has a right to 
 stamp it upon his goods of a similar description." 
 As an illustration, the words ''Congress water" do 
 not indicate either origin or ownership, for the 
 water is a natural product, and no one would, for a 
 moment, conceive our members of Congress as hav- 
 ing any interest in such a subject; and yet the 
 phrase has been held a valid trade-mark. So much 
 the law concedes to a natural beverage described by 
 a "fancy name." But artificial beverages are 
 viewed with less complacency, and ''Schiedam 
 Schnapps " may be made and sold by any one. So 
 it was held in Wolfe v. Burke (7 Lans. 151), and 
 although Mr. Wolfe was the first to introduce this 
 delicate article of alcoholic stimulant to the Ameri- 
 can palate, yet any one may keep the wolf from his 
 door by manufacturing and vending it. 
 
 It is a well-settled principle that a colorable imi- 
 tation of one's trade-mark or designation will be 
 restrained by a court of equity. This received ex- 
 emplification in the case of Christy v. Murpliy (12 
 How. 77). The plaintiff organized and established, 
 in 1842, a band of performers of negro minstrelsy.
 
 180 TRADE-MARKS. 
 
 and named it after himself, "Christy's Minstrels." 
 He was the first who established this species of en- 
 tertainments. When he commenced it he incurred 
 some expenditure of time, labor and money, and 
 continued it successfully until 1854, when he sus- 
 pended it and went to California. In his absence 
 the defendants, most of whom had been employed 
 by him in his band as performers for hire, assumed 
 the style and name of " Christy's Minstrels." The 
 plaintiff, desiring to reinstate his own band under 
 that name, prayed an injunction against this con- 
 duct of the defendants, and it was granted. Judge 
 Gierke, who gave the opinion of the court, and who 
 seems a wise and merry Clerke, such as would have 
 rejoiced the heart of Chaucer, utters some very sen- 
 sible legal, hygienic and ethical observations. He 
 says: *''Man does not live by bread alone;' the 
 complete enjoyment, even of his physical existence, 
 does not depend upon mere food or raiment or 
 other material substance, but upon the exercise of 
 the various and numerous moral and mental facul- 
 ties with which God has endowed us. It may be as 
 necessary to laugh as to eat; and I am persuaded, 
 if people would eat less and laugh more, that their 
 moral as well as physical well-being would be mate- 
 rially improved. The gravest of poets sings: 
 
 ' The love of pleasure is man's eldest born ; 
 Wisdom, her younger sister, though more grave 
 Was meant to minister, and not to mar 
 Imperial pleasure, queen of human hearts.' " 
 
 And the judge concludes that the entertaiment af- 
 forded by Mr. Christy deserves the protection of
 
 TRADE-MARKS. 181 
 
 the court against fraudulent imitations, and that, in 
 the use of his name, the defendant must *' keep dark." 
 Can a picture become a trade-mark? It was 
 doubted by the Supreme Court of California in 
 Falkinburgh v. Lucy (35 Cal. 52). Judge San- 
 derson, in that case, shows a keen sense of the 
 humorous in his descrii)tion of the picture in 
 question. He says: '' The plaintiff's label has a 
 highly-colored picture, representing a washing- 
 ro<jm, with tubs, baskets, clothes-lines, etc. There 
 are two tubs painted yellow, at each of which stands 
 a female of remarkably muscular development, 
 with arms uncovered, and clad in a red dress, 
 which is tucked up at the sides, exposing to view a 
 red petticoat with three black stripes running 
 around it near the lower extremit}'. Each is appa- 
 rently actively engaged in washing, and clouds of 
 steam are gracefully rolling up from the tubs, and 
 dispersing along the ceiling. In the back-ground 
 is extended across the room a clothes-line, upon 
 which are suspended stockings and other under- 
 garments, which have evidently just been put to use 
 in testing the cleansing properties of the plaintiff's 
 washing-powder. To the left of the washerwoman 
 stands a lady in a yellow bonnet, red dress, green 
 congress gaiters, and hoops of ample circumference; 
 upon her left arm is sus^^ended a yellow basket, 
 and in her left hand is held a red parasol; while the 
 other hand, which is encased in a green glove, is 
 gracefully extended toward the nearest washerwo- 
 man in an attitude of earnest entreaty. In the 
 immediate foreground is a yellow-and-green clothes- 
 basket, full of dirty linen, and a yellow-and-green
 
 182 TRADE-MARKS. 
 
 soap packing-box, upon which are printed, in small 
 capitals, the words 'Standard Co.'s Soap.' Each 
 wash-tub is supported by a four-legged stool — some 
 of the legs being yelloAv, some red, some green, and 
 some all three. The floor of the room, as to color, 
 is in part of a yellowish green, and in part of a 
 greenish red, while the walls are of a grayish blue. 
 This is but an imperfect description of the picture 
 with which the plaintiff's label is adorned. The 
 design is good, for it is eminently suggestive of the 
 plaintiff's goods." The judge has a good eye for 
 color, it seems, and might make himself very use- 
 ful in writing descriptions, for the religious newspa- 
 pers, of the "chromos" which they are so much in 
 the habit of offering as inducements to subscribers. 
 But we have never seen why a picture may not be 
 made as good a trade-mark as any thing else, under 
 Lord Langdale's rule. 
 
 However this may be, it would doubtless be con- 
 ceded that an artist's or engraver's device placed 
 upon a picture by way of trade-mark, would be pro- 
 tected from imitation. Thus, the letters A. D. in 
 the form of a monogram, the well-known device of 
 Albert Durer, could not lawfully be adopted by an- 
 other engraver of a different name, although he 
 should place after the letters the year of grace in 
 which the work was produced, thus giving to the 
 letters, when accurately viewed, the force simply of 
 "Antio Domini." And this is the extent to which 
 a man can make a trade-mark of his own name. 
 Those of a different name may be restrained from 
 assuming his name and mark, and others of the 
 same name from imitating his jDCculiar device.
 
 TRADE-MARKS. 183 
 
 One accurate observer has seemed to think that 
 trade-marks on pictures to denote their subjects are 
 very useful. Mark Twain, in •' Innocents Abroad/' 
 after explaining how he is able to recognize pictures 
 of St. Mark, St. Matthew and St. Sebastian, by the 
 presence of the lion, the book and the pen, and the 
 arrows, respectively, goes on to remark: "When we 
 see other monks, looking tranquilly up to heaven, 
 but having no trade-mark, we always ask who those 
 parties are." 
 
 It is always a familiar principle that equity will not 
 lend its aid to restrain imitations of articles which are 
 themselves deceptive and false in their appellation. 
 Thus, in Fetridge v. Wells (13 Hoav. 385), where 
 the plaintiff made a liquid soap, composed of palm 
 oil, pot-ash, alcohol and sugar, and called it " Balm 
 of Thousand Flowers," he w^as denied an injunction 
 to restrain the defendant from doing the same 
 thing. In other words, although the plaintiff came 
 into court with so much soap, he did not come with 
 ''clean hands." I have seldom seen a case ex- 
 hibiting a judge in such a prosaic and unimaginative 
 light as this. Judge Duer actually denied an in- 
 junction on the ground that the title of the plaint- 
 iff's soap was false and fraudulent, and induced the 
 public to believe that it was concocted of many 
 dowers! He satirically calls the article a " precious 
 compound," and spends several pages in the severest 
 judicial denunciation of the inventor. He quotes 
 Webster and Johnson to show that "balm" means 
 "an aromatic vegetable juice, Avhether extracted 
 from trees, shrubs or flowers." What he would do 
 to one Avho should call a soap " Balm of Gilead,"
 
 184 TRADE-MARKS. 
 
 does not appear. But however matter-of-fact the 
 judge was as to the title, he was sound when he 
 came to criticise the paper of directions, which 
 promised that the preparation would cure nearly 
 every ill that flesh is heir to; and not even the '^ in- 
 genious pleasantry " of "the able counsel for the 
 plaintiff, to whom he always listened with pleasure, 
 and not unfrequently with instruction;" nor his 
 own concession that "it would be difl&cult for a 
 judge of the most approved and habitual gravity to 
 read this paper of directions without a smile: " nor 
 his own pleasantry, that "it would seem that so 
 long as the ' Balm of Thousand Flowers ' may be 
 procured, it will be folly to grow old and a mistake 
 to die," could cause him to forget his duty to re- 
 fuse to aid the plaintiff in obtaining a monopoly to 
 deceive the public. To show how doctors will disa- 
 gree, I may cite the opinion of another judge of 
 the same court ujDon a similar application, in re- 
 spect to the very same article. Judge Hoffman 
 could see no great harm in the title of the article, 
 and said: "If a man should comjoound tallow with 
 some high scent and beautiful coloring matter, and 
 term it the ' Ointment of Immortality,' he has a 
 right to appropriate so much of j^ublic credulity as 
 he can by this designation." He also remarked 
 that the further removed an application is from an 
 accurate description of the article, the more decided 
 and exclusive becomes the right to it. He cited the 
 case of the "Medicated Mexican Balm," which had 
 nothing in its comj)osition peculiar to the land of 
 Montezuma, and the " Chinese Liniment," which 
 was an utter stranger to the celestial empire. (See 
 Fetridge v. Merchant, 4 Abb. 156.) Mr. Brown, in
 
 TRADE-MARKS. 185 
 
 his original and ingenious treatise on trade-marks, 
 takes similar ground. He says: "We are not de- 
 ceived into thinking that there is any ' gold dust ' 
 in the whisky that bears that name; or that an 
 illuminating oil is verily 'Mineral SiDerni Oil;' or 
 that pills are really 'everlasting.'" I am quite 
 inclined to agree with the latter authorities, and to 
 believe that the public are not so credulous as Judge 
 Duer seems to think. At all events, I think that 
 Judge Sutherland lays down the true doctrine in 
 Comstoch V. Wliite (18 How. Pr. 421). "As to 
 the public," says he, " if these pills are an innocent 
 humbug, by which the parties are trying to make 
 money, I doubt whether it is my duty, on these 
 questions of property, of right and WTong between 
 the parties, to step outside of the case, and to 
 abridge the innocent individual liberty which all 
 persons must be presumed to have in common, of 
 suffering themselves to be humbugged." A doc- 
 trine previously enunciated in substance by Butler: 
 
 " Doubtless the pleasure is as great 
 Of being cheated as to cheat." 
 
 And by The Spectator: "There is hardly a man in 
 the world, one would think, so ignorant, as not to 
 know that the ordinary quack doctors, who iDublish 
 their great abilities in little brown billets, distrib- 
 uted to all that pass by, are, to a man, imposters 
 and murderers; yet such are the credulity of the 
 vulgar, and the impudence of those professors, that 
 the affair still goes on, and new promises of what 
 was never done before are made every day." 
 
 The principle of Fetridge v. Wells was less dubi- 
 24
 
 186 TRADE-MARKS. 
 
 ously illustrated in Hohbs v. Francais (19 How. 
 567). The plaintiff manufactured a cosmetic pow- 
 der called "Meen Fun," and represented on his 
 labels that it was ''patronized by Her Majesty the 
 Queen," and that the plaintiff's place of business 
 was in London. It appearing that the article was 
 really manufactured in New York, a motion for an 
 injunction against the defendant's manufacture of 
 a similar article, by the same name, was refused, the 
 court remarking: "Her Majesty the Queen is prob- 
 ably ignorant of its virtues or even of its existence." 
 And again, in Foivle v. Spear (7 Penn. L. J. 176), 
 the complainant applied for an injunction to re- 
 strain the defendant from using wrappers, labels 
 and bottles resembling those used by him in his 
 business of selling "Wistar's Balsam of Wild 
 Cherry." It was claimed, by the complainant's 
 wrappers, that his preparation was a specific for 
 nearly every imaginable disease. This was too much 
 for the court, who observed: " It is not the office of 
 chancery to intervene, by its summary process, in 
 controversies like this; ' non nostrum tantas compo- 
 nere,'" which, being translated, I suppose must 
 mean "it is not ours to decide about a nostrum." 
 
 Curtis V. Bryan (36 How. 23) is an entertain- 
 ing case in several particulars. Previous to 1844, 
 Mrs. Charlotte N. Winslow prepared a composition 
 for children teething, which she used with success. 
 In that year, she gave the receipt to her son-in-law, 
 the plaintiff, who commenced its manufacture and 
 sale under the name of "Mrs. Winslow's Soothing 
 Syrup," and with the approval of Mrs. W., he made 
 that his trade-mark, and the article has achieved an
 
 TRADE-MARKS. 187 
 
 extensive and valuable reputation under that appel- 
 lation. In 1867, the defendant commenced the 
 manufacture and sale of a preparation of similar ap- 
 pearance, put up in similar form, and denominated 
 "Mrs. H.M. Winslow's Soothing Syrup for children 
 teething." On the petition of the plaintiff, the de- 
 fendant's conduct was enjoined, it appearing that 
 his claim to the use of the name of " Winslow " was 
 false and fraudulent. Long before the defendant 
 commenced his manufacture, the original Mother 
 Winslow had passed to the silent tomb, but whether 
 her passage thither had been, or might have been, 
 in any degree soothed by the administration of lier 
 own charmed mixture, the report does not show. 
 The case is worthy of remark in several particulars. 
 To begin, it shows the tender interest tliat the law 
 takes in infants. The chancellor and courts of 
 equity are the guardians of infants, and the jealous 
 protectors of their rights. In this case, the court 
 declared that its wards should not be imposed on by 
 pseudo-Mrs. Winslows; that their slumbers should 
 not be broken by any such fraudulent devices, and 
 that the court, having cut its own eye-teeth, would 
 not allow the normal development of the infantile 
 teeth to be interfered with by Mr. Bryan and his 
 pretended Mrs. Winslow. Again, the case discloses 
 the unexampled spectacle of a mother-in-law doing 
 something handsome for her son-in-law, and finally, 
 we should note that, although Mother Winslow had 
 gone, as is confidently hoped, where there is no 
 "wailing or gnashing of teeth," yet the plaintiff 
 continued to advertise that " Mrs. Winslow, an ex- 
 perienced nurse and female physician, presents to
 
 188 TRADE-MARKS. 
 
 the attention of mothers her soothing syrup;" that 
 the defendant claimed that this was a false repre- 
 sentation, and that the court would not protect the 
 plaintiff in a fraudulent monopoly of the name of 
 the departed nurse; but that the court held that 
 the objection was technical, that they would not 
 look too intensely into tenses, and the defendant 
 being guilty of fraud, it did not lie in his mouth to 
 make the objection. So Mother Winslow can rest 
 in peace; her son-in-law can go on selling the mix- 
 ture undisturbed, and thousands of young mothers, 
 when they feel, like Hamlet, that the ''heir bites 
 shrewdly," will bless good Mother Winslow and 
 good Judge Van Vorst. As for this wretched de- 
 signing Bryan, he ought to be sentenced to read 
 Judge Van Vorst's opinion of him. I would not 
 like to be in his jalace for a considerable considera- 
 tion. If he has any conscience at all, the feelings 
 of the ruifians who smothered the babes in the 
 Tower, and of Macbeth, who " murdered sleep," 
 must have been as nothing to his. The poet sweetly 
 sings : 
 
 " Heaven lies about us in our iufanc}' ; " 
 
 but when we read this report, we must conclude 
 that it is Bryan who lies about us in our infancy. 
 Let the wretched man go. K"ot even the original 
 Eind genuine Mother Winslow can purchase slumber 
 for his guilty eyelids. 
 
 So much as to the action of courts in assisting 
 poor human nature to get its teeth in without pain. 
 Now let us see how it will aid us in getting our 
 teeth out without pain. Colton v. Thomas (2 Brews-
 
 TRADE-MARKS. 180 
 
 ter, 308) tells us how. The plaintiff alleged that 
 he had purchased from Dr. G. Q. Colton the right to 
 use the name " Colton Dental Association " in con- 
 nection with the use of nitrous-oxide gas to allevi- 
 ate pain in the extraction of teeth, and that he used 
 the same in advertisements, and prominently dis- 
 played it on signs; that the defendant, who had 
 been in his employment, left him, opened dental 
 rooms in the same street, issued cards, announcing 
 that he was "formerly operator at the Colton Den- 
 tal Eooms," and extracted teeth without pain by the 
 use of nitrous-oxide gas, and put a sign to the same 
 purport over his door, but the words "formerly 
 operator at the," upon cards and sign, were in small 
 and almost illegible letters, while the words " Col- 
 ton Dental Eooms" were very conspicuous; the 
 signs were very similar in shape, size, etc., and were 
 hung on the same side of the street, in the same 
 manner, and might readily be mistaken the one for 
 the other, "especially by suffering patients impa- 
 tient for relief." An injunction against the de- 
 fendant's cards and signs was granted. 
 
 As we have seen, the imitation need not be literal 
 to sustain an injunction. Thus, in Burnett v. 
 PhaJon {9 Bosw. 192), the plaintiff's "Cocoaine" 
 was held to be infringed by the defendant's " Coco- 
 ine;" and in a French case, "Eau de la Floride" 
 was held to be infringed by "Eau de la Fluoride." 
 Here was a difference of only a single letter, but the 
 court thought " the letter killeth." 
 
 But it is time to draw the moral from our sub- 
 ject. In the first place, we see that man is an imi- 
 tative animal. Doubtless Mr. Darwin would de-
 
 190 TRADE-MARKS. 
 
 rive comfort from the perusal of this paper, as 
 affording evidence that we are all descended from 
 Mr. Darwin's avowed ancestry. Be that as it may 
 the fact remains, man apes his fellow. Secondly: 
 in the matter of trade-marks, in nine cases out of 
 ten, the protection of the mark is sought for some- 
 thing not worth protecting or not needing protec- 
 tion. Nostrums form a large class, and things 
 without which mankind would be as well off as 
 with; or the thing infringed is no better than the 
 spurious article; or the genuine is so much superior 
 to the spurious, that nobody will be deceived. So 
 it is apparent that the protection extended is not 
 for the public, but simply for individual benefit. 
 Third: it is quite possible that if trade-marks were 
 abolished all commodities would be improved, and 
 less liable to adulteration or depreciation in mauTi- 
 facture. Mr. Wedgwood never patented his exquis- 
 ite wares; he knew they could not be success- 
 fully imitated. Ulysses felt no uneasiness lest any 
 one else should bend his bow. Wordsworth said to 
 Lamb that Shakespeare was greatly overrated; 
 ''why," said he, "I could write just like him if I 
 had a mind to." " Yes," said Lamb, " if you only 
 had the mind." There is quite a tempest in the 
 literary tea-pot, about the authorship of "Beauti- 
 ful Snow " and " Betsey and I are out," but " Para- 
 dise Lost " and " Hamlet " have had no imitators 
 and need no trade-mark.
 
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