The Green Bag VOL. XX.
No. 3
BOSTON
MARCH, 1908
THAYER'S LEGAL ESSAYS BY FREDERIC JESUP STIMSON. THEY come to us, these last words of a departed scholar, with the earnestness of one who speaks for the last time, and not to his friends alone, but to the nation that has not many of his like to spare. The title " Legal Essays " reminds one of their modest author; really all but one are grave studies in constitutional law; some con cerning issues which, well or ill, are passed, others grave with the portent of the days to come. Not many of our strenuous majority may find time to read them; yet they are full of a nationalism that more often than not arrays their author upon the progressive side. Notably his impatience of mere letter-reading of the Constitution, his caution to the courts of using too far their newly given powers over parliaments, his plea for national ppwers, that even arrays him against Bancroft on the legaltender question. It befits one of his own scholars to state the master's views, rather than put forth his own. The volume is made up, as the title indicates, of essays on various subjects; of these only four may be called consti tutional, two or three others political, and the balance legal. It is not, therefore, a treatise on constitutional law; nor are the matters, except for the profound and lumi nous treatment of one mind, closely related. Yet this very variety tends to keep awake the reader's interest. There are two essays in the nature of reviews: on Bracton's Note Book, discovered by Professor Vinigradoff of Moscow, in the British Museum, and published for the first time in 1887, and on Dicey 's Law of the English Constitution.
That Mr. Thayer was no blind worshipper of precedent, is shown by his rejection of Dicey's inclusion, among " the conventions of the Constitution," the principle that a President shall not be re-elected more than once, "... when we get a good enough President it is probable that no talk of a 1 third term ' will be any serious obstacle to re-electing him repeatedly " (p. 205). Then there is an address, made before the American Bar Association, on the importance of teaching historically the Common Law at our Universities — a matter still unhap pily neglected — and a short paper on "Law and Logic," as applied to our rules of evidence. This subject was that of Professor Thayer's first teaching; the chair of Constitutional Law came later; we are not surprised there fore to find it the theme of his longest chapter. A discussion of the law of res gestae fills over a hundred pages of the book. It is a common characteristic of all popu lar law as distinguished from Code-made law, to develop extraordinary subtlety in rules of procedure and refinements of evi dence; the Icelandic saga delight in such technicalities. Standing between those who would admit all testimony and let the jury determine its probative force, if even remotely relevant, and those who stand by the occasionally arbitrary rules of the Eng lish law, Mr. Thayer taught consistently that admissibility is determined first by relevancy — an affair of logic and expe rience, and not at all of law; and only secondly by the law of evidence, which declares whether any given matter which
