In re Iconography

We, therefore, following the royal pathway and the divinely inspired authority of our Holy Fathers and the traditions of the Catholic Church (for, as we all know, the Holy Spirit dwells in her), define with all certitude and accuracy that, like the figure of the precious and life-giving Cross, so also, venerable and holy images of our Lord God and Savior Jesus Christ, of our spotless Lady, the Mother of God, of the honorable angels, of all saints and of all the just, whether painted or made of mosaic or another suitable material, are to be set forth in the holy churches of God, on the sacred vessels, on the vestments, on walls and panels, in houses, and on streets.  For the more frequently they are seen in artistic representation, the more readily men are lifted up to the memory of their prototypes and to longing after them; and to these should be given due greeting and honorable reverence, not indeed that adoration (latreia) which pertains to the divine nature alone, but incense and candles may be offered to these, as to the figure of the precious and life-giving Cross, the Book of the Gospels, and other holy objects, according to ancient and pious custom.  For the honor that is paid to the image passes on to what the image represents, and he who reveres the image reveres in it the subject represented.
(2d Council of Nicea, A.D. 787)

The images of Christ, of the Virgin Mother of God, and of other saints are to be kept and preserved, in places of worship especially, and to them due honor and veneration is to be given, not because it is believed that there is in them anything divine or any power for which they are revered, nor in the sense that something is sought from them or that a blind trust is put in images as once was done by the gentiles who placed their hope in idols, but because the honor that is shown to them is referred to the original subjects that they represent. Thus, through these images that we kiss and before which we kneel and uncover our heads, we are adoring Christ and venerating the saints whose likeness these images bear.
(Council of Trent, Session XXV, December 1563)

The same subject, continued.

Estop

One sees "estopped to" and "estopped from." Which is right?

Well, both get you the maximum 10,000 hits that Westlaw can process on all-states/all-feds. The oldest result for "from" is McDonald v. King, 1 N.J.L. 432 (N.J. 1791). For "to," you have Holmes v. Kennedy, 1 Root 77 (Conn. 1775).

"Bargain and Sell"

One invariably sees the phrase "A bargains and sells to B" in deeds. Equally invariably, nobody handling such a deed can explain why the deed says "bargain and sell." Because they do not understand the words, having never bothered to learn the nature, purpose, or origin of their presence, people simply assume they are superfluous. It is fashionable in many circles to deride such phrasings as merely an abundance of surplusage.

Au contraire. The Georgia Supreme Court explains:

Blackstone says of the deed of bargain and sale, that it “is a kind of real contract, whereby the bargainor, for some pecuniary consideration, bargains and sells, that is, contracts to convey, the land to the bargainee, and becomes by such a bargain, a trustee for, or seized to the use of, the bargainee: and then the statute of uses completes the purchase; or, as it hath been well expressed, the bargain first vests the use, and then the statute vests the possession.” (2 Black. Com. 338.) So, Cruise says; “The proper and technical words of this conveyance, are, “bargain and sell;” but any other words that would have been sufficient to raise a use upon a valuable consideration, before the statute, are now sufficient to constitute a good bargain and sale.”

Dudley’s Lessee v. Bradshaw, 29 Ga. 17, 22–23 (1859). 

Thus, the contract for the sale of land was the bargain, which created (as it still does) an equitable title in the purchasor. The sale was the legal result, created by the Statute of Uses (27 Hen. VIII c. 10), that followed, of the legal title vesting in the purchasor as a result of the bargain. So the words are not surplusage: they describe the conveyance of two different rights, distinguishing a deed from a trust instrument. Once again, our ancestors prove that they were more intelligent than we like to believe.

 

Stradivarius, Doyle, and the Restatement

Law school exams are notorious for predicating questions about the legal ramifications of certain acts on events from the news, films, or literature, not infrequently amplified to provide more shocking details. It appears that the editors of the Restatement (Second) of Torts were not above showing their professorial stripes.

6. A is a violin expert. He pays a casual visit to B's shop, where second-hand musical instruments are sold. He finds a violin which, by reason of his expert knowledge and experience, he immediately recognizes as a genuine Stradivarius, in good condition and worth at least $50,000. The violin is priced for sale at $100. Without disclosing his information or his identity, A buys the violin from B for $100. A is not liable to B.

Restatement (Second) of Torts § 551 cmt. k, illus. 6.

We had a pleasant little meal together, during which Holmes would talk about nothing but violins, narrating with great exultation how he had purchased his own Stradivarius, which was worth at least five hundred guineas, at a Jew broker's in Tottenham Court Road for fifty-five shillings. This led him to Paganini, and we sat for an hour over a bottle of claret while he told me anecdote after anecdote of that extraordinary man. The afternoon was far advanced and the hot glare had softened into a mellow glow before we found ourselves at the police-station. Lestrade was waiting for us at the door.

Sir Arthur Conan Doyle, "The Adventure of the Cardboard Box" in The Memoirs of Sherlock Holmes (1894).

Not worth the bones of a single Pomeranian grenadier

The title is, of course, Bismark's famous dismissal of the Balkans. I have recently begun re-reading Robert Massie's seminal work Dreadnought. In the early chapters he runs through the important diplomatic events of the Victorian era by way of introducing the playing field on which Germans and British struggled for naval supremacy in the pre-Great War years. If you know the history of late-nineteenth-century Europe, you can skip the next three paragraphs.

A great deal of diplomatic and military fuss during these years, of course, focused on the Balkans. The story goes, more or less, as such: the Turks owned them, the Russians wanted them, the Austrians meddled with them, nobody got them. The Russians were motivated to interfere in the Balkans by twin concerns: pan-Slavism and opposition to the Turks. The Russians tried for centuries to exert enough pressure on the Turks so that the Porte would not be able to close the Bosporus and Dardanelles to Russia's Black Sea Fleet (the Baltic anchorages froze in the winter, and besides, battleships at Helsinki are not much use in protecting or menacing near east shipping).

Austria, on the other hand, had spent even more centuries wresting back north Balkan territory that the Turks had overrun in the 15th through early 17th centuries. The Balkans were her backyard, in which the Sick Man was enough of a trouble: other Great Powers surely couldn't be allowed to run free in it. Britain didn't particularly care whether the Balkans existed or not. She simply desperately wanted the straights closed to the Russian fleet, which could cut vital supply lines across the Mediterranean if loosed. The Prussians only cared about maintaining all the European spheres more or less in their present orbits, which happened to favor Germany.

So when in 1877 the Russians crushed the Ottomans in a war and extracted an independent (Russian-dominated) Bulgaria that filled most of the southern Balkans in the peace, the other powers were concerned. Ultimately Bismark hornswaggled the czar into renegotiating the peace at a Berlin conference that doled out diplomatic candy to other powers and forced Russia to surrender many of her gains. Nothing much changed from the European status quo antebellum except that now the Russians disliked Germany, of which they had been somewhat fond before. Eventually Wilhelm II sacks Bismark, the old diplomatic system falls apart, Russia and Austria dissolve, and millions of people die. Twice.

******

But suppose Bismark plays his cards differently. The British were incensed at the treaty, but were just beginning to reassert diplomatic influence in continental Europe and could have been fended off by diverse means. He could have let Russia keep most---perhaps not all---of the Big Bulgaria (it was a quite large state). He should have arranged a few guaranties for Turkey, so the Ottoman empire didn't implode (a constant fear and danger of the other powers). This effectively would have given Austria the short end of the stick.

The Austrians, however, never gained anything positive out of the Balkan influence they got from the Congress of Berlin: it was troublesome, expensive, and ultimately regicidal because, mirabili dictu, the Slavs didn't like being pushed around by Hapsburgs.. The principal problem that would face the Austro-Hungarian empire was not lack of diplomatic influence, it was internal tension between ethnic groups who could no longer be held together by the imperial crown. The Russians likely would have gained little in terms of actual power from increased Balkan influence. They would have had to oversee the internal squabbling there, and it would have done little to remedy the shortcomings in manufacturing and leadership that stymied the empire until its collapse. Even if the czar had been able to open the straights to steam for Suez, the Mediterranean Squadron could have blasted the Russians to the bottom of the Sea of Marmara as they attempted to force the Dardanelles (cf, Tsushima). Maybe the Russians should have been made to promise not to base warships in Bulgarian ports.

In the end, the European system was undone by Russian and Austrian perceptions of their own internal and diplomatic weakness (and Wilhem II's being a warmongering fool when he needed to be cool-headed). If Russia had been allowed to keep these victories, there would have been no lingering perception that she was being weakened by falling down on her obligations to fellow Slavs. If Austria had been kept out of new Balkan adventures, she could have been encouraged to focus on internal administrative improvements, perhaps the adoption of some form of federal system that would have both put minority nationalists more at ease and simultaneously allowed better functioning of government bodies. Her ties with Germany would provide her with diplomatic support and her absence from volatile meddling in the Balkans would remove sources of tension. As for Italy, well, nobody really cared what Italy thought: all Italy really wanted was Trieste, and she wasn't ever powerful enough to get that.

I think there's at least an interesting argument to be made, then, that if the Congress of Berlin had ended more favorably to Russia, the turmoil that led to the Great War might not have occurred, and old Andrew Cusack wouldn't have to be so sadly nostalgic.

Lord Chancellor

One occasionally hears the assertion that St. Thomas More was the first layman elevated to the woolsack. My hunch has long been that this was surely incorrect, and Blackstone has vindicated me: Chief Justices Thorpe and Knyvet, attorneys and not clerics, served as successive chancellors to Edward III in 1372--1373. Blackstone, 3 Commentaries 645.