Fun in Law Reports

1895

SOME OF THE CASES FURNISH FOOD FOR LAUGHTER.

Mistakes of Judicial Pens — Early English Common Law Severe on Clergymen — Citing High Authority — The Remarkable Opinion of Judge Lewis.

Many of the law reports are full of curious judicial slips. In a Georgia case, for instance, the judge, giving the opinion, says that "Montgomery, C. J., was providentially prevented from presiding in this case." This may have been a whack at Montgomery, C. J., or at the lawyer who argued it before the weary judge. This isn't quite as bad, however, as the theological slip of a Nebraska judge in a supreme court case, in which he holds that "the law presumes against the carrier unless he shows that it was done by the king's enemies or by such an act of God as could not happen by the intervention of man." His opinion of the relative positions of God and man recalls the story of the Adams county justice who had occasion to punish a party for gross profanity used in open court. "For taking the name of Almighty God in vain," said this worthy successor of Mr. Justice Shallow, "I shall fine you $10, and for offending the dignity of this court you will pay a fine of $60 and costs or go to jail."

Lawmakers furnish us quite as funny mistakes as law writers. When the supreme court of California came to pass upon the charter of the city of Oakland, a few years ago, they said of the phraseology of the charter that "the joint labors of Malaprop and Partington could scarcely have made such a collocation or dislocation of words and sentences as did this legislator. Among other things it gives the board of trustees power to license and suppress dramshops, horse racing, gambling houses, houses of ill fame and all indecent and immoral practices, shows and amusements." Such a license power might do in New York. It scandalized the pious town of Oakland.

If clergymen wish to know their rating in the ponderous sheepskin tomes, they can find it out by beginning with the very earliest English lawbooks in existence. In one of the black letter year books it appears that some one had been so unkind as to call a preacher a fool, with a good theological prefix to the fool. The preacher brought suit for slander, and the defendant justified, as the lawyers say — that is, he claimed that what he said was not slander, but gospel truth, and he showed that the words spoken could not hurt the clergyman, "for that it was a maxim of the common law" that "a parson might be a good parson and still be a fool." The court so held, but said that had the words been spoken of a lawyer or a doctor it would have been otherwise.

Lord Coke, the great fountain of our common law, had little use for the preachers, and in his third institute he says that in order that the Carmelite friars of Fleet street might perform their vows of chastity King Edward III had to prohibit all woman from passing through a lane next to the friar house. Apropos of preachers an old chronicle relates that when Alan de Neville, chief forester of Henry II, died a certain monastery begged for some of his great wealth. The king, with fine religious discrimination, said, "I shall take his wealth, but you may have his carcass, and the devil will get his soul."

Some of the funniest things in the lawbooks are the far fetched authorities that are cited to establish certain rulings. In a case tried before Justice Fortescue it was claimed that the other side had no right to be heard. The judge decided that it had. "I have heard it observed," said he, "that even God himself did not pass sentence upon Adam before he was given chance to defend himself. 'Adam,' says God, 'where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldst not eat?' And the same question was put to Eve also."

But for exciting legal reading the famous case reported in 10 Pa. St. Report Daily takes first prize. Mr. Justice Lewis thus disports himself on the subject of restraining a widow from marrying: "The principle of reproduction," he says, "stands next in importance to its elder born correlative, self preservation, and is equally a fundamental law of existence. It is the blessing which tempered with mercy the expulsion from paradise. It was impressed upon the human creation by a beneficent Providence, to multiply the images of himself and thus to promote his own glory and the happiness of his creatures. From the lord of the forest to the monster of the deep, from the subtlety of the serpent to the innocence of the dove, from the elastic embrace of the mountain kalmia to the descending fructification of the lily of the plain, all nature bows submissively to this primeval law. Even the flowers, which perfume the air with their fragrance and decorate the forests and fields with their hues, are but curtains to the nuptial bed. The principles of morality, the policy of the nation, the doctrines of the common law, the law of nature and the law of God unite in condemning as void the condition attempted to be imposed upon this widow."

In Manby versus Scott, a case decided in England in 1662, Mr. Justice Wyndham thus prophesies as to what may be expected if a husband is to be held responsible for the contracts of his wife. His objections are a curious commentary on the marriage tie of those days. Among "the many inconveniences which must ensue" he specifies the following:

First. — The husband will be accounted the common enemy, and the mercer and the gallant will unite with the wife, and they will combine their strength against the husband.

Second. — Wives will be their own carvers, and, like hawks, will fly abroad and find their own prey.

Third. — It shall be left to the pleasure of a London jury to dress my wife in such apparel as they think proper.

Fourth. — Wives who think they have insufficient will have it tried by a mercer whether their dress is not too mean, and this will make the mercer judge whether he will dispose of his own goods or not. — Philadelphia Times.