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the legislative, governmental, and police powers to the city, would be void. In Wisconsin v. Duluth, p. 406, where the State of Wisconsin brought a bill in equity in the Circuit Court against the city of Duluth, to enjoin the defendant from extending a dyke into the navigable waters of the river St. Louis, it is decided, Mr. Justice Miller giving the opinion, that a state, as plaintiff, cannot maintain an action in the Circuit Court of the United States. The mechanical execution of this book is in every way excellent.
Woman before the Law. By John PROFFATT, LL.B., of the New York Bar.
New York : G. P. Putnam's Sons, Fourth Avenue and Twenty-third Statet. 1874.
This is one of the most attractively printed and bound law-books that we ever saw. It is really a pleasure to the hand to hold it, and to the eye to look at it, and we read it through as soon as we saw it, and then advised our wife to read it. It contains seven chapters, and we cannot better state its contents than by giving the chapter headings as we find them : 1. Former Status of Women. II. Legal Conditions of Marriage. III. Personal Rights and Disabilities of the Wife. IV. Rights of Property — Real and Personal. V. Dower. VI. The Reciprocal Rights and Duties of Mother and Children. VII. Divorce. It is too brief and condensed a book, and has too few references and citations, to be used by the practising lawyer, except perhaps as a key, and the author disclaims any such intention ; but for any one whose ears are ringing with the terrible tale of woman's wrongs told by Miss —, or Mrs. — , from some public platform, and by them laid at the door of the law, and for the student before consulting the larger works, it will be refreshing to get a reliable, compendious statement of woman's rights and her exact legal position. The author intimates that if this work be well received, he shall be encouraged hereafter to give it more scope and reference. He will find himself trespassing on the close that from long possession Mr. Bishop deems himself entitled to ; but nevertheless we hope he will keep on. Perhaps he can add to our means of information, and if he does, his manner of doing it will ensure him success, or we are no prophets.
Assimilation of English and Foreign Commercial Law. By H. D. JENCKEN,
Barrister at Law.
This is the reprint of a paper read before the Jurisprudence Department of the Social Science Congress, Norwich, Eng., October, 1873, together with an abstract of the discussion that followed it, by Mr. Dudley Field, Messrs. Webster, Kay, and Brown, of the English bar, and other gentlemen. The subject is one of great interest and importance, and it is well treated in this brief summary of the advantages of such an assimilation as shall give to commerce the saine rules of law over the wide extent of country in which business of all kinds now freely ranges. The French Code has done this for one-half of Europe; the German Code has begun to do it for the other half; and the English system, which makes the law for the largest portion of the mercantile world, is not beyond being, if not codified, at least assimilated on matters common to all countries. Of these Mr. Jencken discusses commercial paper, joint-stock companies, and bankruptcy, as subjects in which, by reason of the close intercommunication of men of all nations in common business enterprises, there ought to be one rule and one law. He also suggests the advantage of applying the examination of experts to the further questions of marriage, succession, and wills, so as to avoid the scandal of laws so contradictory that neither the personal status nor the rights of property of the same man in different places can be positively affirmed or ascertained. The reform is clearly one that can be reached by proper treaty negotiations; and to prepare the basis for it there should be a careful study of the problems suggested and the remedies mooted by Mr. Jencken.
California Citations: an alphabetical Table of all the Cases cited in the
Opinions of the California Reports, and of the California Cases cited in the Reports of other States; with all the points as to which they are cited, approved, affirmed, doubted, denied, or overruled. By Robert Desty, Attorney at Law. San Francisco: Sumner, Whitney, & Co. 1874.
This book must be of great service in California, and wherever used will prove economical of time and labor. Similar works have been projected in several states; for example, Linn's Index of Pennsylvania, Wait's Tahle of New York Cases, Wendling's Index to Illinois Reports, to which may be added Bigelow's Overruled Cases. (See 7 Am. Law Rev. 716.) Great energy and industry are requisite to the proper compilation of works like these, which the rapid growth of the law and the multiplicity of decisions have rendered almost indispensable. In the book before us Mr. Desty has attempted a scheme more comprehensive than any of the authors of similar works, unless it be Mr. Bigelow, by undertaking to trace the history and reception of California decisions through the reports of other states. While we do not imagine that this book will have a large sale outside of California, yet it ought to accompany the California reports everywhere.
The General Railroad Laws of the State of Ohio, in force January 1, 1874;
together with certain other Laws and the Provisions of the Constitution of the State affecting Railroad Corporations, with Notes of the Decisions of the Supreme Court of Ohio relating thereto. By JAMES A. Wilcox. Cincinnati : Robert Clarke & Co. 1874.
AUTHORS of books often complain (and, in many instances, it must be admitted the complaint is well founded) that the people who write reviews of their books conceive it a principal duty to point out that the book is not something else than it is, and it would be a better book if it were written on an altogether different plan, so as to be, in fact, an altogether different book. That the remarks we have to make upon the volume before us may not fairly give rise to complaint in this respect, it is right to point out at the outset that Mr. Wilcox's book does not purport to treat of any thing beyond the domestic law of the state of Ohio having reference to his particular topic. It is a full collection, answering also the purpose of a digest, of the general statutes of that state relating directly to railroad corporations and to railroads, with some other general statutes referring less directly to the same subjects, together with the provisions of the constitution of the state relating to the same, and notes of the decisions of the Supreme Court of the
state interpreting or explaining the provisions of the constitution or of the statutes.
From the nature of the case, therefore, the chief utility of the book must be confined within the limits of the state ; and an intelligent judgment with regard to its value can only be pronounced by those who may have opportunities equal to that of the author for examining the sources of information from which his materials are necessarily drawn, namely, the statutes and reports of his own state. An inspection of the volume, however, affords us no reason to suppose that he has not made diligent and faithful use of his opportunities; and we do not doubt that it contains all that it purports to contain, so that it may very well become a useful manual for all persons within the state who may have relations of any kind with railroad corporations or with railroads, or for those persons in other states who may from time to time have occasion to make themselves acquainted with the provisions of law in that particular state.
If, however, it is within the proper limits of a review to criticise the plan upon which such a book is constructed, we must add that that which Mr. Wilcox has adopted does not appear to us particularly happy. He follows the statute-book, arranging the acts of the legislature in chapters “ according to subjects, so far as could well be done without transposing laws or sections." The qualification of the rule is so considerable as to deprive the arrangement of topics of system or method. The arrangement might with nearly equal propriety be described as following the order of the statutes, “ so far as could well be done without " wholly sacrificing attention to the natural order of subjects; and unfortunately the Ohio legislature, like all others in the country, seems to have habitually disregarded method and system in its successive acts of legislation. We believe that a more methodical distribution of the several sections of paragraphs would have made the use of the book more convenient. In the first place, there is a fundamental distinction between laws relating to railroad corporations and those which relate to railroads themselves; although this distinction is lost sight of by legislators, as well as by others who have less need to observe it. In common parlance, the railroad corporation is generally spoken of as “the railroad," and when it is necessary to use a pronoun, appears to be of the feminine gender, like a nation or a ship. All provisions of law relating to the formation and organization of railroad corporations, the issuing of stock and bonds, mortgages of their property, and franchises, &c., make a subdivision of the general subject, naturally distinct in itself.
On the other hand, legislation relative to railroads naturally divides itself into two general branches, namely, their location and construction to begin with, and their maintenance and use afterwards.
It is true, however, that this question of arrangement becomes less important in a case where a single volume contains the whole of the laws on the subject to which it relates. A full index, prepared on a systematic plan, together with numerous cross-references, will supply defects of arrangement. As regards the latter point, Mr. Wilcox's book is not open to criticism, unless it is that the references are not sufficiently particular, and are complicated in their construction, as to act, chapter, and paragraph, rather than by a simple reference to a page, or what is always better, a paragraph, in a continuous series running from the beginning to the end of the book.
Among the peculiar features of constitutional and statute law in the state of Ohio which this volume discloses is the amusing application to special cases of the fundamental provision that laws must be general. There are several general laws in Ohio applying to “ cities of the first class, having a population of 150,000 inhabitants,” the “ cities” of this class being in fact no other than the single city of Cincinnati. But that is not all. There is a general act " to authorize cities of the second class, with a population of 9229 and no more inhabitants, according to the census of 1860, to construct a line of railway within the limits of said city.” This act, as the note informs us, " was passed to enable the city of Zanesville to construct a railroad through her corporate limits.” It really provides for a single railway in a single city,– a city which would not be more exactly described by using its name of Zanesville than it is by the designation used in the title of the act, there being, of course, no other city having precisely that number of inhabitants by the census specially named.
A Treatise on the Constitutional Limitations which rest upon the Legislative Power •
of the States of the American Union. By Thomas M. COOLEY, LL.D. Third edition. Boston: Little, Brown, & Co. 1874.
The subject of this treatise, considered as a branch of positive law, is peculiar to this country. It is often charged upon us that statesmanship here is all belittled by our written constitutions ; in great crises, it is said, when public men should be discussing the problems of the time on grounds of political wisdom and public policy, our statesmen are too often debating the meaning of words or the construction of sentences, and even quibbling over questions of grammar and punctuation.
Should this be allowed to be true, we may yet fairly claim that jurisprudence has gained what statesmanship loses. Our judges, when they come to the task of construing the constitutions, are required to rise out of the region of any narrow or technical discussions, and to reason broadly, with reference often to the gravest considerations of political wisdom; and this sort of investigation cannot be properly carried on without elevating, enlarging, and invigorating the judicial mind. When the question no longer relates to some bargain of a day, between man and man, about a single, definite, and temporary matter, but has to do with a great public instrument designed to last for many generations, fixing the fundamental political rights and relations of a whole population, and adapted to the shifting circumstances of a future unknown, or known only in its larger outlines, it is obvious that the mind of the man who would worthily discuss these matters must dilate and take a broader view, and readjust itself to the large method required for the handling of such great topics. In our American volumes of Reports there are admirable specimens of judicial discussion upon this high plane. Let any one turn to some of the opinions of the Chief Justices Ruffin, Shaw, Gibson, and Marshall, - not to name more, — and he will easily see what scope and freedom has been lent to judicial reasoning in this country by the peculiarities of our political system.
It is of this subject of constitutional law that Mr. Justice Cooley treats in the volume before us, - a full, careful, and serviceable book, which has reached its third edition in less than six years, and has taken a well-deserved place among standard law-books. This excellent work has heretofore been fully noticed in these pages, and we do not now propose to speak of it in detail ; let us only heartily commend it again to the attention of our readers. The author has added in this edition the recent decisions ; we observe, also, a very long new note upon the subject of municipal loans in aid of railroads and similar public improvements. Upon this subject the Supreme Court of Michigan, by the mouth of Judge Cooley himself, has already spoken, and, perhaps, we are not to wonder that the note in question is marked with much less reserve and sobriety of tone than is common with our author. On the other hand, upon the much canvassed subject of the legislative power over railroads, the reader may seem to mark the reticence of a judge who does not as yet feel at liberty to utter his full opinion.
Massachusetts Reports. Vol. CVIII. Cases argued and determined in the
Supreme Judicial Court of Massachusetts. October-November, 1871. ALBERT G. BROWNE, Jun., Reporter. Boston: H. 0. Houghton & Co. 1873.
This volume brings the reports down to November, 1871. We have to acknowledge, as we have often done before, the great merits of Mr. Browne's work; and it is with much regret that we have received the news of his resignation.
It would be difficult to make much improvement in the substance of his reports. It may be suggested, however, that the arrangement of cases by the counties and terms at which they are argued must delay their publication without serving any useful purpose; and something would be gained if they were printed in the order in which they are decided and prepared, and published in parts of 100 or 150 pages each, as well as in volumes. In the last few volumes the short titles of cases (e.g., Hunt v. Taylor) have been used for running titles, without adding “ & another,” &c.; and it would be more convenient if these titles were also used at the head of each case, as they are the only names by which cases are known, and Christian names and other additions only obscure them; such information should be placed in the text.
Among the questions decided in the cases in this volume are some points in regard to the right of personal liberty. A constable has no authority to arrest and detain a person merely because he is insane, and the constable thinks that it will be for his welfare; nor is the superintendent of an insane asylum justified by such reasons in detaining him. Look v. Dean; Look v. Choate, p. 116. An officer cannot, in an action for false imprisonment, justify an arrest without a warrant, for a breach of the peace, under a statute which authorizes officers to arrest without a warrant and to take the offender before a magistrate, unless he takes him before a magistrate. Brock v. Stimson, p. 520. But the failure of the officer to comply with this requirement constitutes no defence in a criminal prosecution against a person who assaults the officer while lawfully making the arrest. Commonwealth v. Tobin,