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Blupete's Weekly Commentary

March 19th, 2000.

"Bullum v. Boatum"

An old English judge by the name of Stevens had this story to tell, likely at one of the bar and bench diners:

LAW is law -- law is law; and as in such and so forth and hereby, and aforesaid, provided always, nevertheless, notwithstanding. Law is like a country dance, people are led up and down in it till they are tired. Law is like a book of surgery, there are a great many desperate cases in it. It is also like physic, they that take least of it are best off. Law is like a homely gentlewoman, very well to follow; law is also like a scolding wife, very bad when it follows us. Law is like a new fashion, people are bewitched to get into it: it is also like bad weather, most people are glad when they get out of it.

We shall now mention a cause, called "Bullum versus Boatum": it was a cause that came before me. The cause was as follows.

There were two farmers: farmer A. and farmer B. Farmer A. was seized or possessed of a bull: farmer B. was seized or possessed of a ferry-boat. Now, the owner of the ferry-boat, having made his boat fast to a post on shore, with a piece of hay, twisted rope-fashion, or, as we say, vulgo vocato, a hay-band; as it was very natural for a hungry man to do, went up town to dinner: farmer A.'s bull, as it was very natural for a hungry bull to do, came down town to look for a dinner; and observing, discovering, seeing, and spying out some turnips in the bottom of the ferry-boat, the bull scrambled into the ferry-boat; ate up the turnips, and to make an end of his meal, fell to work upon the hayband. The boat being eaten from its moorings floated down the river, with the bull in it: it struck against a rock; beat a hole in the bottom of the boat, and tossed the bull overboard: whereupon the owner of the bull brought his action against the boat, for running away with the bull: the owner of the boat brought his action against the bull, for running away with the boat: And thus notice of trial was given, Bullum versus Boatum.

Now the counsel for the bull began with saying: "My lord, and you gentlemen of the jury, we are counsel in this cause for the bull. We are indicted for running away with the boat. Now, my lord, we have heard of running horses but never of running bulls, before. Now, my lord, the bull could no more run away with the boat, than a man in a coach may be said to run away with the horses; therefore my lord, how can we punish what is not punishable? How can we eat what is not eatable? How can we drink what is not drinkable? Or, as the law says, how can we think on what is not thinkable? Therefore, my lord, as we are counsel in this cause for the bull, if the jury should bring the bull in guilty, the jury would be guilty of a bull."

The counsel for the boat observed, that the bull should be nonsuited; because, in his declaration, he had not specified what colour he was of; for thus wisely, and thus learnedly, spoke the counsel! -- "My lord, if the bull was of no colour, be must be of some colour: and, if he was not of any colour, what colour could the bull be of?" I overruled this motion myself, by observing, that the bull was a white bull, and that white is no colour; besides, as I told my brethren, they should not trouble their beads to talk of colour in the law, for the law can colour anything. This cause being afterwards left to a reference, upon the award both bull and boat were acquitted; it being proved that the tide of the river carried them both away: upon which, I gave it as my opinion, that, as the tide of the river carried both bull and boat away, both bull and boat had a good action against the water-bailiff.

My opinion being taken, an action was issued; and, upon the traverse, this point of law arose: How, wherefore, and whether, why, when, and what, whatsoever, whereas, and whereby, as the boat was not a compos-mentis evidence, how could an oath be administered? That point was soon settled, by Boatum's attorney declaring, that for his client he would swear anything.

The water-bailiff's charter was then read, taken out of the original record, in true law Latin; which set forth, in their declaration, that they were carried away either by the tide of flood, or the tide of ebb. The charter of the water-bailiff was as follows: A qum bailiffl est magistratus in choisi super omnibus fishibus qui habuerunt finnos et scalos, claws, shells, et talos, qui swimmare infreshibus, vel saltibus riveris, lakis, pondis, canalibus, et well boatis; sive oysteri, prawni, whitini, shrimpi, turbutus solus; that is, not turbots alone, but turbots and soles both together. But now comes the nicety of the law; the law is as nice as a new-laid egg, and not to be understood by addle-headed people. Bullum and Boatum mentioned both ebb and flood, to avoid quibbling; but it being proved, that they were carried away neither by the tide of flood, nor by the tide of ebb, but exactly upon the top of high water, they were nonsuited; but such was the lenity of the court, that upon their paying all costs, they were allowed to begin again, de novo.

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Peter Landry

March, 2000 (2019)