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dans le commerce, et de les distinguer sûrement de ceux qui seront
exactement complets dans toutes leurs parties. Disposé par ordre de
matières et de facultés, suivant le système bibliographique généralement
adopté; avec une table générale des auteurs, et un système complet de
bibliographie choisie. Par Guillaume-François de Bûre le jeune, Libraire
de Paris."]

It is a remarkable thing that a man should have been imprisoned, and had
his ears cut off, and become one of the chief causes of our great civil
wars, all along of an unfortunate word or two in the last page of a book
containing more than a thousand. It was as far down in his very index as
W that the great offence in Prynne's Histrio-Mastix was found, under the
head "Women actors." The words which follow are rather unquotable in
this nineteenth century; but it was a very odd compliment to Queen
Henrietta Maria to presume that these words must refer to her - something
like Hugo's sarcasm that, when the Parisian police overhear any one use
the terms "ruffian" and "scoundrel," they say, "You must be speaking of
the Emperor." The Histrio-Mastix was, in fact, so big and so complex a
thicket of confusion, that it had been licensed without examination by
the licenser, who perhaps trusted that the world would have as little
inclination to peruse it as he had. The calamitous discovery of the
sting in the tail must surely have been made by a Hebrew or an Oriental
student, who mechanically looked for the commencement of the
Histrio-Mastix where he would have looked for that of a Hebrew Bible.
Successive licensers had given the work a sort of go-by, but, reversing
the order of the sibylline books, it became always larger and larger,
until it found a licenser who, with the notion that he "must put a stop
to this," passed it without examination. It got a good deal of reading
immediately afterwards, especially from Attorney-General Noy, who asked
the Star-Chamber what it had to do with the immorality of stage-plays to
exclaim that church-music is not the noise of men, but rather "a
bleating of brute beasts - choristers bellow the tenor as it were oxen,
bark a counterpoint as a kennel of dogs, roar out a treble like a set of
bulls, grunt out a bass as it were a number of hogs." But Mr Attorney
took surely a more nice distinction when he made a charge against the
author in these terms: "All stage-players he terms them rogues: in this
he doth falsify the very Act of Parliament; for _unless they go abroad_,
they are not rogues."

In the very difficulties in the way of framing a conclusive and
exhaustive title, there is a principle of compensation. It clears
literature of walls and hedgerows, and makes it a sort of free forest.
To the desultory reader, not following up any special inquiry, there are
delights in store in a devious rummage through miscellaneous volumes, as
there are to the lovers of adventure and the picturesque in any district
of country not desecrated by the tourist's guide-books. Many readers
will remember the pleasant little narrative appended to Croker's edition
of Boswell, of Johnson's talk at Cambridge with that extensive
book-hunter, Dr Richard Farmer, who boasted of the possession of "plenty
of all such reading as was never read," and scandalised his visitor by
quoting from Markham's Book of Armorie a passage applying the
technicalities of heraldry and genealogy to the most sacred mystery of
Christianity. One who has not tried it may form an estimate of this kind
of pursuit from Charles Lamb's Specimens of the Writings of Fuller. No
doubt, as thus transplanted, these have not the same fresh relish which
they have for the wanderer who finds them in their own native
wilderness, yet, like the specimens in a conservatory or a museum, they
are examples of what may be found in the place they have come from.

But there are passages worth finding in books less promising. Those who
potter in libraries, especially if they have courage to meddle with big
volumes, sometimes find curious things - for all gems are not collected
in caskets. In searching through the solid pages of Hatsell's Precedents
in Parliament for something one doesn't find, it is some consolation to
alight on such a precedent as the following, set forth as likely to
throw light on the mysterious process called "naming a member." "A story
used to be told of Mr Onslow, which those who ridiculed his strict
observance of forms were fond of repeating, that as he often, upon a
member's not attending to him, but persisting in any disorder,
threatened to name him - 'Sir, sir, I must name you' - on being asked what
would be the consequence of putting that threat in execution and naming
a member, he answered, 'The Lord in heaven knows.'"

In the perusal of a very solid book on the progress of the
ecclesiastical differences of Ireland, written by a native of that
country, after a good deal of tedious and vexatious matter, the reader's
complacency is restored by an artless statement how an eminent person
"abandoned the errors of the Church of Rome, and adopted those of the
Church of England."

So also a note I have preserved of a brief passage descriptive of the
happy conclusion of a duel runs thus: -

"The one party received a slight wound in the breast; the other fired in
the air - and so the matter terminated."[43]

[Footnote 43: This passage has been quoted and read by many people quite
unconscious of the arrant bull it contains. Indeed, an eminent London
newspaper, to which the word Bull cannot be unfamiliar, tells me, in
reviewing my first edition, that it is no bull at all, but a plain
statement of fact, and boldly quotes it in confirmation of this opinion.
There could be no better testimony to its being endowed with the subtle
spirit of the genuine article. Irish bulls, as it has been said of
constitutions, "are not made - they grow," and that only in their own
native soil. Those manufactured for the stage and the anecdote-books
betray their artificial origin in their breadth and obviousness. The
real bull carries one with it at first by an imperceptible confusion and
misplacement of ideas in the mind where it has arisen, and it is not
until you reason back that you see it. Horace Walpole used to say that
the best of all bulls, from its thorough and grotesque confusion of
identity, was that of the man who complained of having been "changed at
nurse;" and perhaps he is right. An Irishman, and he only, can handle
this confusion of ideas so as to make it a more powerful instrument of
repartee than the logic of another man: take, for instance, the beggar
who, when imploring a dignified clergyman for charity, was charged not
to take the sacred name in vain, and answered, "Is it in vain, then? and
whose fault is that?" I have doubts whether the saying attributed to Sir
Boyle Roche about being in two places at once "like a bird," is the
genuine article. I happened to discover that it is of earlier date than
Sir Boyle's day, having found, when rummaging in an old house among some
Jacobite manuscripts, one from Robertson of Strowan, the warrior poet,
in which he says about two contradictory military instructions, "It
seems a difficult point for me to put both orders in execution, unless,
as the man said, I can be in two places at once, like a bird." A few
copies of these letters were printed for the use of the Abbotsford Club.
This letter of Strowan's occurs in p. 92.]

Professional law-books and reports are not generally esteemed as light
reading, yet something may be made even of them at a pinch. Menage wrote
a book upon the amenities of the civil law, which does anything but
fulfil its promise. There are many much better to be got in the most
unlikely corners; as, where a great authority on copyright begins a
narrative of a case in point by saying, "One Moore had written a book
which he called Irish Melodies;" and again, in an action of trespass on
the case, "The plaintiff stated in his declaration that he was the true
and only proprietor of the copyright of a book of poems entitled The
Seasons, by James Thomson." I cannot lay hands at this moment on the
index which refers to Mr Justice Best - he was the man, as far as memory
serves, but never mind. A searcher after something or other, running his
eye down the index through letter B, arrived at the reference "Best - Mr
Justice - his great mind." Desiring to be better acquainted with the
particulars of this assertion, he turned up the page referred to, and
there found, to his entire satisfaction, "Mr Justice Best said he had a
great mind to commit the witness for prevarication."

The following case is curiously suggestive of the state of the country
round London in the days when much business was done on the road: - A
bill in the Exchequer was brought by Everett against a certain Williams,
setting forth that the complainant was skilled in dealing in certain
commodities, "such as plate, rings, watches, &c.," and that the
defendant desired to enter into partnership with him. They entered into
partnership accordingly, and it was agreed that they should provide the
necessary plant for the business of the firm - such as horses, saddles,
bridles, &c. (pistols not mentioned) - and should participate in the
expenses of the road. The declaration then proceeds, "And your orator
and the said Joseph Williams proceeded jointly with good success in the
said business on Hounslow Heath, where they dealt with a gentleman for a
gold watch; and afterwards the said Joseph Williams told your orator
that Finchley, in the county of Middlesex, was a good and convenient
place to deal in, and that commodities were very plenty at Finchley
aforesaid, and it would be almost all clear gain to them; that they went
accordingly, and dealt with several gentlemen for divers watches, rings,
swords, canes, hats, cloaks, horses, bridles, saddles, and other
things; that about a month afterwards the said Joseph Williams informed
your orator that there was a gentleman at Blackheath who had a good
horse, saddle, bridle, watch, sword, cane, and other things to dispose
of, which, he believed, might be had for little or no money; that they
accordingly went, and met with the said gentleman, and, after some small
discourse, they dealt for the said horse, &c. That your orator and the
said Joseph Williams continued their joint dealings together in several
places - viz., at Bagshot, in Surrey; Salisbury, in Wiltshire; Hampstead,
in Middlesex; and elsewhere, to the amount of £2000 and upwards."[44]

[Footnote 44: This case has been often referred to in law-books, but I
have never met with so full a statement of the contents of the
declaration as in the Retrospective Review (vol. v. p. 81).]

Here follows a brief extract from a law-paper, for the full
understanding of which it has to be kept in view that the pleader, being
an officer of the law who has been prevented from executing his warrant
by threats, requires, as a matter of form, to swear that he was really
afraid that the threats would be carried into execution.

"Farther depones, that the said A.B. said that if deponent did not
immediately take himself off he would pitch him (the deponent) down
stairs - which the deponent verily believes he would have done.

"Farther depones, that, time and place aforesaid, the said A.B. said to
deponent, 'If you come another step nearer I'll kick you to hell' - which
the deponent verily believes he would have done."[45]

[Footnote 45: It is curious to observe how bitter a prejudice Themis has
against her own humbler ministers. Most of the bitterest legal jokes are
at the expense of the class who have to carry the law into effect. Take,
for instance, the case of the bailiff who had been compelled to swallow
a writ, and, rushing into Lord Norbury's court to proclaim the indignity
done to justice in his person, was met by the expression of a hope that
the writ was "_not returnable_ in this court."]

I know not whether "lay gents," as the English bar used to term that
portion of mankind who had not been called to itself, can feel any
pleasure in wandering over the case-books, and picking up the funny
technicalities scattered over them; but I can attest from experience
that, to a person trained in one set of technicalities, the pottering
about among those of a different parish is exceedingly exhilarating.
When one has been at work among interlocutors, suspensions, tacks,
wadsets, multiplepoindings, adjudications in implement, assignations,
infeftments, homologations, charges of horning, quadriennium utiles,
vicious intromissions, decrees of putting to silence, conjoint actions
of declarator and reduction-improbation, - the brain, being saturated
with these and their kindred, becomes refreshed by crossing the border
of legal nomenclature, and getting among common recoveries, demurrers,
Quare impedits, tails-male, tails-female, docked tails, latitats,
avowrys, nihil dicits, cestui que trusts, estopels, essoigns, darrein
presentments, emparlances, mandamuses, qui tams, capias ad faciendums or
ad withernam, and so forth. After vexatious interlocutors in which the
Lord Ordinary has refused interim interdict, but passed the bill to try
the question, reserving expenses; or has repelled the dilatory defences,
and ordered the case to the roll for debate on the peremptory defences;
or has taken to avizandum; or has ordered re-revised condescendence and
answers on the conjoint probation; or has sisted diligence till caution
be found judicio sisti; or has done nearly all these things together in
one breath, - it is like the consolation derived from meeting a companion
in adversity, to find that at Westminster Hall, "In fermedon the tenant
having demanded a view after a general imparlance, the demandant issued
a writ of petit cape - held irregular."

Also, "If, after nulla bona returned, a testatum be entered upon the
roll, quod devastavit, a writ of inquiry shall be directed to the
sheriff, and if by inquisition the devastavit be found and returned,
there shall be a scire facias quare executio non de propriis bonis, and
if upon that the sheriff returns scire feci, the executor or
administrator may appear and traverse the inquisition."

Again, "If the record of Nisi prius be a die Sancti Trinitatis in tres
Septimanas nisi a 27 June, prius venerit, which is the day after the day
in Bank, which was mistaken for a die Sancti Michaelis, it shall not be
amended."

It is interesting to observe that at one end of the island a panel means
twelve perplexed agriculturists, who, after having taken an oath to act
according to their consciences, are starved till they are of one mind on
some complicated question; while, at the other end, the same term
applies to the criminal on whose conduct they are going to give their
verdict. It would be difficult to decide which is the more happy
application; but it must be admitted that we are a great way behind the
South in our power of selecting a nomenclature immeasurably distant in
meaning from the thing signified. We speak of a bond instead of a
mortgage, and we adjudge where we ought to foreclose. We have no such
thing as chattels, either personal or real.[46] If you want to know the
English law of book-debts, you will have to look for it under the head
of Assumpsit in a treatise on Nisi Prius, while a lawyer of Scotland
would unblushingly use the word itself, and put it in his index. So,
too, our bailments are merely spoken of as bills, notes, or whatever a
merchant might call them. Our garneshee is merely a common debtor. Baron
and feme we call husband and wife, and coverture we term marriage.

[Footnote 46: A late venerable practitioner in a humble department of
the law, who wanted to write a book, and was recommended to try his hand
at a translation of Latin law-maxims as a thing much wanted, was
considerably puzzled by the maxim, "Catella realis non potest legari;"
nor was he quite relieved when he turned up his Ainsworth and found that
catella means a "little puppy." There was nothing for it, however, but
obedience, so that he had to give currency to the remarkable principle
of law, that "a genuine little whelp cannot be left in legacy." He also
translated "messis sequitur sementem," with a fine simplicity, into "the
harvest follows the seed-time;" and "actor sequitur forum rei," he made
"the agent must be in court when the case is going on." Copies of the
book containing these gems are exceedingly rare, some malicious person
having put the author up to their absurdity.]

Still, for the honour of our country, it is possible to find a few
technicalities which would do no discredit to our neighbours. Where one
of them would bring a habeas corpus - a name felicitously expressive,
according to the English method, of civil liberty - an inhabitant of the
North, in the same unfortunate position, would take to running his
letters. We have no turbary, or any other easement; but, to compensate
us, we have thirlage, outsucken multures, insucken multures, and dry
multures; as also we have a soumin and roumin, as any one who has been
so fortunate as to hear Mr Outram's pathetic lyric on that interesting
right of pasturage will remember, in conjunction with pleasing
associations. To do the duty of a duces tecum we have a diligence
against havers. We have no capias ad faciendum (abbreviated cap ad fac),
nor have we the fieri facias, familiarly termed fi fa, but we have
perhaps as good in the in meditatione fugæ warrant, familiarly
abbreviated into fugie, as poor Peter Peebles termed it, when he burst
in upon the party assembled at Justice Foxley's, exclaiming, "Is't here
they sell the fugie warrants?"[47]

[Footnote 47: There are two old methods of paying rent in Scotland - Kane
and Carriages; the one being rent in kind from the farmyard, the other
being an obligation to furnish the landlord with a certain amount of
carriage, or rather cartage. In one of the vexed cases of domicile,
which had found its way into the House of Lords, a Scotch lawyer argued
that a landed gentleman had shown his determination to abandon his
residence in Scotland by having given up his "kane and carriages." It is
said that the argument went further than he expected - the English
lawyers admitting that it was indeed very strong evidence of an intended
change of domicile when the laird not only ceased to keep a carriage,
but actually divested himself of his walking-cane.]

I am not sure but, in the very mighty heart of all legal formality and
technicality - the Statutes at large - some amusing as well as instructive
things might be found. Let me offer a guiding hint to the investigator
ambitious of entering on this arduous field. The princely collector
will, of course, put himself in possession of the magnificent edition of
the Statutes issued by the Record Commission, but let not the
unprofessional person who must look short of this imagine that he will
find satisfaction in the prim pages of a professional lawyer's modern
edition. These, indeed, are not truly the Statutes at large, but rather
their pedantic and conventional descendants, who have taken out letters
of administration to their wild ancestors. They omit all the repealed
Statutes in which these ancestors might be found really at large sowing
their wild oats, and consequently all that would give them interest and
zest for those in search of such qualities.

It is not, for instance, in the decorous quartos of Roughhead, but in
the hoary blackletter folios, looking older than they are - for
blackletter adhered to the Statutes after it had been cast off by other
literature - that one will find such specimens of ancestral legislation
as the following: -


ATTORNEYS. - (33 Henry VI. c. 7.)

"Item: Whereas of time not long past, within the city of Norwich, and
the counties of Norfolk and Suffolk, there were no more but six or eight
atturneys at the most coming to the King's Courts, in which time great
tranquillity reigned in the said city and counties, little trouble or
vexation was made by untrue or foreign suits, and now so it is, that in
the said city and counties there be four score atturneys or more, the
more part of them having no other thing to live upon, but only his gain
by the practise of atturneyship: and also the more part of them not
being of sufficient knowledge to be an atturney, which come to every
fair, market, and other places, where is any assembly of people,
exhorting, procuring, moving, and inciting the people to attempt untrue
and foreign suits for small trespasses, little offences, and small sums
of debt, whose actions be triable and determinable in Court Barons,
whereby proceed many suits, more of evil will and malice than of truth
of the thing, to the manifold vexations and no little damage of the
inhabitants of the said city and counties, and all to the perpetual
diminution of all the Court Barons in the said counties, unless
convenient remedy be provided in this behalf. The foresaid Lord the
King, considering the premises, by the advice, assent, and authority
aforesaid, hath ordained and stablished that at all times, from
hencefort, there shall be but six common atturneys in the said county of
Norfolk, and six common atturneys in the said county of Suffolk, and two
common atturneys in the said city of Norwich, to be atturneys in the
Courts of Record."


FUSTIAN. - (11 Henry VII. c. 27.)

"Now so it is, that divers persons, by subtilty and undue sleights and
means, have deceivably imagined and contrived instruments of iron, with
the which irons, in the most highest and secret places of their houses,
they strike and draw the said irons over the said fustians unshorn; by
means whereof they pluck off both the nap and cotton of the same
fustians, and break commonly both the ground and threeds in sunder, and
after by crafty sleeking, they make the same fustians to appear to the
common people fine, whole, and sound: and also they raise up the cotton
of such fustians, and then take a light candle and set it in the fustian
burning, which sindgeth and burneth away the cotton of the same fustian
from the one end to the other down to the hard threeds, in stead of
shering, and after that put them in colour, and so subtilly dress them
that their false work cannot be espied without it be by workmen sherers
of such fustians, or by the wearers of the same, and so by such
subtilties, whereas fustians made in doublets or put to any other use,
were wont and might endure the space of two years and more, will not
endure now whole by the space of four months scarcely, to the great hurt
of the poor commons and serving men of this realm, to the great damage,
loss, and deceit of the King's true subjects, buyers and wearers of such
fustians," &c.

The history of statute-making is not absolutely divested of pleasantry.
The best tradition connected with it at present arising in the memory is
not to be brought to book, and must be given as a tradition of the time
when George III. was king. Its tenor is, that a bill which proposed, as
the punishment of an offence, to levy a certain pecuniary penalty, one
half thereof to go to his Majesty and the other half to the informer,
was altered in committee, in so far that, when it appeared in the form
of an act, _the punishment_ was changed to whipping and imprisonment,
_the destination_ being left unaltered.

It is wonderful that such mistakes are not of frequent occurrence when
one remembers the hot hasty work often done by committees, and the
complex entanglements of sentences on which they have to work.[48]
Bentham was at the trouble of counting the words in one sentence of an
Act of Parliament, and found that, beginning with "Whereas" and ending
with the word "repealed," it was precisely the length of an ordinary
three-volume novel. To offer the reader that sentence on the present
occasion would be rather a heavy jest, and as little reasonable as the
revenge offered to a village schoolmaster who, having complained that
the whole of his little treatise on the Differential Calculus was
printed bodily in one of the earlier editions of the Encyclopædia
Britannica (not so profitable as the later), was told that he was
welcome, in his turn, to incorporate the Encyclopædia Britannica in the
next edition of his little treatise.

[Footnote 48: A polite correspondent reminds me of the Registration Act,
52 G. III. c. 156, in which the fruit of penalties is divided between
the informer, who gets one half, and certain charitable purposes, to
which the other is devoted, while the only penalty set forth in the Act
is transportation for fourteen years.]

In the supposition, however, that there are few readers who, like Lord



Online LibraryJohn Hill BurtonThe book-hunter : etc. → online text (page 15 of 33)