(Vol. viii., p. 198.)
A. E. B. has not quoted quite correctly. He has put two phrases of mine
into Italics, which makes them appear to have special relation to one
another, while the word which _I_ put in Italics, "_ninth_," he has made
to be "9th." Farther, he has left out some words. The latter part should
run thus, the words left out being in brackets:
"... though he were born [a minute before midnight] on the
10th, he is of age to execute a settlement at a minute after
midnight on the morning of the 9th, forty-eight hours all
but two minutes before he has drawn breath for the space of
twenty-one years."
Had the quotation been correct, it would have been better seen that I
no more make the day of majority begin a minute after midnight, than I
make the day of birth end a minute before midnight. A second, or even the
tenth of a second, would have done as well.
The _old reckoning_, of which I was speaking, was the reckoning which
rejects fractions; and the matter in question was the _day_. For my
illustration, any beginning of the day would have done as well as any
other; on this I must refer to the paper itself. Nevertheless, I was
correct in implying that the day by which age is reckoned begins at
midnight and I believe it began at midnight in the time of Ben Jonson.
The law recognised two kinds of days;--the natural day of twenty-four
hours, the artificial day from sunrise to sunset. The birthday, and with
it the day of majority, would needs be the natural day; for otherwise a
child not born by daylight would have no birthday at all. I cannot make
out that the law ever recognised a day of twenty-four hours beginning
at any hour except midnight. For payment of rent, the artificial day
was recognised, and the tenant was required to tender at such time
before sunset as would leave the landlord time to count the money by
daylight; a reasonable provision, when we think upon the vast number of
different coins which were legal tender. But even here it seems to have
been held that though the landlord might enter at sunset, the forfeiture
could not be enforced if the rent were paid before midnight. A legal
friend suggested to me that perhaps Ben Jonson had more experience of
the terminus of the day as between landlord and tenant, than of that
which emancipates a minor. This would not have struck me: but a lawyer
views man simply as the agent or patient in distress, ejectment, _quo
warranto_, &c.
A. E. B. twice makes the question refer to _usage_, whereas I was
describing _law_. If I were as well up in the drama as I should like to
be, I might perhaps find a modern plot which turns upon a minor coming of
age, in which the first day of majority is what is commonly called the
_birthday_, instead of, as it ought to be, the day before. Writers of
fiction have in all times had fictitious law. If we took decisions from
the novelists of our own day, we should learn, among other things, that
married women can in all circumstances make valid wills, and that the
destruction of the parchment and ink which compose the material of a deed
is also the destruction of all power to claim under it.
Singularly enough, this is the second case in which my paper on reckoning
has been both misquoted and misapprehended in "N. & Q." My knowledge of
the existence of this periodical began with a copy of No. 7. (containing
p. 107., Vol. i.), forwarded to me by the courtesy of the Editor, on
{251} account of a Query signed (not A. E. B. but) B., affirming that I
had "discovered a flaw in the great Johnson!" Now it happened that the
flaw was described, even in B.'s own quotation from me, as "certainly not
Johnson's mistake, for he was a clear-headed arithmetician." B. gave me
half a year to answer; and then, no answer appearing, privately forwarded
the printed Query, with a request to know whether the readers of "N. &
Q." were not of a class sufficiently intelligent to appreciate a defence
from me. The fact was, that I thought them too intelligent to need it,
after the correction (by B. himself, in p. 127.) of the misquotation.
It is not in letters as in law, that Judgment must be signed for the
plaintiff if the defendant do not appear. There is also an anonymous
octavo tract, mostly directed, or at least (so far as I have read) much
directed, against the arguments of the same article, and containing,
misapprehensions of a similar kind. That my unfortunate article should be
so misunderstood in three distinct quarters, is, I am afraid, sufficient
presumption against its clearness; and shows me that _obscures fio_ is,
as much as ever, the attendant of _brevis esse laboro_: but I am still
fully persuaded of the truth of the conclusions.