THE PROBLEMS OF TO-DAY 359 



the face of all men; in 1891, six years before, the history of jury 

 trial had been reexamined in the Harvard Law Review, by Professor 

 Thayer, one of the two greatest authorities on constitutional law 

 then living, outside of the Federal Supreme Court itself; and in 

 1875, twenty-two years before, had appeared in an American edition 

 Mr. Forsyth's History of Trial by Jury. In all three of these it had 

 been plainly pointed out that the Magna Charta clause did not sig- 

 nify jury trial, but precisely the opposite; namely the Barons were 

 opposed to jury trial. 1 Yet, with all these authorities staring from 

 the library shelves, the " most exalted tribunal in the world " harks 

 back to Blackstone's crude authority of one hundred and thirty 

 years before; and perpetuates indelibly upon the records of our law 

 a gross error of fact upon one of the most simple, most marked, 

 most important, and best known points in our history. We need not 

 aspire, perhaps, to the fortunate condition of some of the European 

 courts, where (as at Basel in Switzerland) the Chief Justice is the 

 author of one of the three greatest histories of Germanic law, or 

 (as at Paris) the author of the leading history in his own language 

 of the procedure of the Holy Inquisition. But it is surely a simple 

 and defensible ambition that the judges of our highest court should 

 read somebody else's book of legal history enough to keep up with 

 the common and established facts of our past. It is held, as a rule 

 of our law, that judicial notice will be taken of ancient books of 

 history; and it would seem that our judges will take notice of no 

 other kind of books! Truly it ought not to be said of our courts, 

 as Rabelais' Pantagruel conceded to the learned doctors of the law, 

 that as for " knowledge of antiquities and history, they were truly 

 laden with them, as a toad is with feathers! " 



If we ask what is to be done, then, for the propagation of the 

 general knowledge of what is already established by our historical 

 scholars, we may take in turn the three parts of our legal profession, 

 (1) the Bench, (2) the Bar, (3) the students of law. 



(1) As for the Bench, we may as well concede that it is vain to 

 hope by any measures to add this acquirement where it is lacking. 

 "Old mastiffs," Pantagruel called them; and it is a truism that you 

 cannot teach an old dog new tricks. Rudolph von Ihering, the 

 witty historian of Roman law, lamenting the imperviousness of the 

 German Bar to an interest in that history, declared that the right 

 man would some day be born who would serve up history as appe- 

 tizingly as a French cook could disguise a piece of sole-leather with 

 one of those inimitable sauces. Pending that genius's arrival, his 

 prescription was a good cigar, a comfortable stuffed chair, and the 



1 Pollock & Maitland, 151; Thayer, 56, 65; Forsyth, 91 (" It is a common but 

 erroneous opinion that the judicium parium, or trial by one's peers, had reference 

 to the jury "). 



