« PreviousContinue »
55 of Dialogue 2. For in the time of Edward III. the sound sense of Englishmen (though thereto pricked by some unwillingness to pay tithe) perceived that the income of property was one thing and the increase of it was another; and the same good sense perceived that the one claiming the income was always present, desiring to strip the inheritance, so that the law should lean against him; and it perceived that no absolute line of distinction between income and increase of capital could be drawn, but that often the increase, as of growing wood, was partly because no income was taken away from year to year, and that, after many years, the increase was divided off all at once. And so they drew an arbitrary line logically indefensible, yet reasonably near where it ought to be, and resting on a principle which will always stand, cropping out anew from time to time, as in the Massachusetts statutes about dower and life-interests in woodland and wildland, and in decisions about the income tax (Gray v. Darlington, 15 Wall. 65), probably working hardship in every application made of it, but inherently wise and just on the whole.
We have received, at a late hour, this pamphlet, “A Third Chapter on the Rule in Minot's Case. By a Layman. New York: G. P. Putnam's Sons. Association Building, Fourth Avenue and Twenty-third Street. 1874,” which seems to deal principally with Leland v. Hayden, 102 Mass., and with an article in vol. v. of this Review, p. 720. After copying a paragraph from our article, " a Layman” writes (p. 34): “Well, now, I do not know who could venture to say this of the court except some member of the court; and this remark, with other internal evidence, confirms my belief that the article before me is from the pen of the Chief Justice or one of his associates.” Again (p. 45): “ The opinion of the court, the article in the Law Review, the text, and the note of Mr. Perry's Treatise, bear marks too obvious of a common origin and a common construction.” “ Opinions, reviews, and treatises, these, are the channels through which the judges can find ready access to the public ear, and by which they can circulate and perpetuate the most patent errors."
It is this rare faculty of investigating the “innards” of matters, and this almost preternatural power of discovering the nests of timid mares, however carefully they may be hidden, that make " a Layman's" pamphlets so instructive.
Trial of Emil Lowenstein for the Murder of John D. Weston, at West Albany,
August 5, 1873, commenced at the Albany Oyer and Terminer, Monday, January 26, and concluded February 19, 1874, with the Evidence, Arguments of Counsel, Charge of the Court without Condensation, Verdict of the Jury, Sentence of the Prisoner, and an Account of his Execution, &c. · Albany: William Gould & Son, Law Publishers and Booksellers, 68 State Street. 1874.
This is a very full account of the trial and conviction of a murderer on purely circumstantial evidence, and derives its chief value, as a record, from the minuteness of its detail of the testimony. It contains also, in the argument of the district attorney, a very interesting collation of the cases relating to circumstantial evidence. It is bound in pamphlet form, and is worthy of careful preservation. Few lawyers in the course of their professional life have occasion to participate in a murder trial, but, to the few who do, the records of celebrated trials are of inestimable value, and the courage of the author who has taken the time and pains to prepare a work like the one before us is by them gratefully remembered.
On Civil Liberty and Self-government. By FRANCIS LIEBER, LL.D., Corre
sponding Member of the Institute of France, &c.; author of “Political Ethics," “ Principles of Legal and Political Interpretation,”' &c. Third edition, revised. Edited by THEODORE D. Woolsey. Philadelphia: J. B. Lippincott & Co. London: Trübner & Co. 1874.
CHARLES Sumner, though bred to the law, learned, in the later years of his life, to look upon the statesmanship of lawyers with profound distrust, and often complained bitterly of the lawyers in the Senate whose“ technicality and obstructiveness” not unfrequently delayed, and sometimes defeated, the measures he had most at heart. Others, governed by a different feeling, have complained that our politics are dry, and that parties in this country have found little to discuss but the construction of statutes and constitutions, so that our history has been wholly devoid of that romantic interest which the student finds in the political struggles of continental Europe. Mr. Sumner knew well, but in his impatience of narrow-minded opposition sometimes perhaps forgot, that the technicality of which he complained was merely the evidence of that jealous respect for law which is essential to the maintenance of liberty; and it would be well for us all to remember, now that we are struggling to restore the law to its old supremacy which the struggles of civil war have somewhat shaken, the words of Burke, “ Law and arbitrary power are in eternal enmity. ... We may bite our chains if we will; but we shall be made to know ourselves, and be taught that man is born to be governed by law, and he that will substitute will in the place of it is an enemy to God.” We surely shall not complain of legal technicality when we see the condition of those foreign republics where it, and the respect for law of which it is the fruit, are alike unknown.
In a government like ours, lawyers always have, and of necessity must, play a prominent part, and books like that which is the subject of this notice will naturally find a place in their libraries. Dr. Lieber's work, however, has been too long before the public, and its merits are too well known, to need introduction or extended criticism. It is a very valuable book for use as a text-book in colleges; and the student will find in it, clearly and succinctly stated, the arguments which have been used in support of our system of government and its principal institutions. It may be doubted, however, whether the reader who has mastered the fundamental principles, and is familiar with the ordinary discussions, would find much in it to help him in solving the practical problems which tax the wisdom of statesmen to-day, unless it be that help which it always gained from a thorough grasp of first principles. In fact, the book is elemental, at least to an American, who will find it easy to agree with its author, since we are easily convinced that our institutions are, in theory at least, as nearly perfect as human ingenuity has been able to devise. Perhaps, however, the study of elemental principles might profitably
be renewed by our legislators, whose laws are often wofully inconsistent with them.
While the book, therefore, is of interest to lawyers as legislators and citizens, considered in a strictly professional view it affords little food for criticism. Dr. Lieber declares himself unhesitatingly against making unanimity in juries essential to a verdict; and his discussion of the subject is more interesting now on account of the movements recently made on both sides of the water looking towards a change in the jury system. We doubt, however, whether the judgment of students is entitled to weigh in this matter with that of practical men. The real reason for requiring unanimity is that it insures deliberation. If a bare majority or even if two-thirds of a jury could give a verdict, it would constantly be the case that hasty and ill-considered verdicts would be rendered by the least competent members of the panel. A jury at best only represents the average wisdom of the community, and the men of sound judgment, therefore, will generally be in a minority, some would be tempted to say in a very small minority. Unless their consent was necessary to a verdict, their opinions would lose the weight with their fellows which they properly should have. Eight fools would render a verdict without waiting to hear what the four wise men had to say. The danger of disagreement is greatly over-estimated, and it would be curious to get the statistics on the point; but every practising lawyer knows that it is one of the least objections to the jury system.
Dr. Woolsey has edited the book carefully; but his own contributions are not large, nor such as to call for extended criticism.
A Treatise of the Law of Bills of Exchange, Promissory Notes, Bank Notes, and
Checks. By Sir John BARNARD Byles, late one of the Judges of Her Majesty's Court of Common Pleas. Sixth American, from the eleventh London edition, with Notes from the fifth American edition. By MauRICE BARNARD Byles, Esq., with additional Notes illustrating the Law and Practice in the United States. By Hon. GEORGE SHARSWOOD. Philadelphia: T. & J. W. Johnson & Co. 1874.
The fifth American edition of this book, from the ninth London edition, was published in 1867; and in our notice of that edition we say, in regard to the book itself, “ The arrangement is so lucid, the statements of the law are so concise, there is such an entire absence of the loose talk in which inferior writers abound, that the book might well be enacted entire by act of Parliament;” in regard to that edition we say, “ The only criticism we have to make, and it is a grave one, is on the omission to insert the American cases in the index, — a serious deficiency in this otherwise complete edition.”
We are sorry to see that this omission remains in the present edition. In any book the practising lawyer would suffer great inconvenience oftentimes from the want of a table of cases; for frequently it is the best index, and, by telling him where a leading case is cited, refers him most quickly to the subject he is studying. These remarks apply particularly to this book; for the index is not full, and there are very few cross references. The author or editor, we do not know which, has thought it necessary to say, if “ the index in any part
of it be found defective, the reader is referred to the copious analytical table of contents prefixed.”.
The eleventh London edition contains many of the notes in the fifth American edition; and, as all those notes are retained in the present edition, we have frequently the same note twice, - once in the English notes and once in the American. The editor says it was impossible to remedy this without altering the original work, which the American publishers did not think it would be proper for them to do. How much new matter there is in the present edition we are unable to state. There are twenty-four more pages than in the last edition, but probably a considerable part of this space is occupied by the notes which appear twice.
In the absence of a table of American cases, we cannot ascertain whether the important decisions made since 1867 have been added. So far as we have examined the notes of the present edition, they are the same as those of the preceding, with very few changes or additions. There are several leading cases which we have looked for without finding; but we cannot be certain of their omission without a very close examination of the book. The book itself we have already praised very highly; this edition of it, though capable of improvement, is the best there is.
Catalogue of the Books in the Library of the New York Law Institute. New
York. 1874. Legal Bibliography. The Catalogue of the Library of the New York Law
Institute. By R. S. GUERNSEY. Reprinted from the New York Daily Register of March 27, 1874.
The elegant volume described above deserves a more comprehensive title than the compiler's modesty has given it. Nothing less than the table of contents can give an idea of the scope of the work, and even that is so condensed that we propose to copy instead the fuller synopsis from Mr. Guernsey's excellent article. The latter, however, does not refer to the preliminary fifty pages, which are devoted to lists of officers, members, and donors, and to a sketch of the Law Institute and of its deceased presidents, prepared by Mr. Edward Patterson, a member of the Library Committee. This contains much curious and interesting information relative to the origin and development of an institution for which Boston is partly responsible.
Mr. George Sullivan, a member of the Boston Bar, removed to New York in 1826, and was naturally desirous of establishing in the city of his adoption a law association and law library like those which he had left in Boston. Becoming intimate with the late Mr. James W. Gerard, he secured his active co-operation, and in 1828 the Law Institute was fairly organized, with Chancellor Kent as its first president, whose successors in that office have been Mr. Justice Thompson, afterwards Secretary of the Navy, Chancellor Jones, Mr. Anthon, Mr. James T. Brady, and Mr. Charles O'Conor. Incorporated in 1830, it has steadily increased in importance and influence, until the number of its members exceeds six hundred, and its library contains nearly seventeen thousand volumes. Many of our readers have had occasion and opportunity to make use of this valuable collection, which, in Mr. Patterson's words, "now ranks third, if not second, in importance in the United States, and in some departments of the law, as the Catalogue will exhibit, is the best furnished in the Union.”
Mr. Guernsey's synopsis of the contents of the body of the volume is as follows: – 1. Alphabetical Catalogue of Authors, Compilers, &c., with date of issue,
the edition, number of volumes, form, and place of publication of the
work. 2. Chronological Lists of the Reports of the United States Courts, with lists
of Digests and Compilations of the United States Laws and Decisions. 3. Chronological Lists of State Reports, and lists of recent editions of the
Revised Statutes, Digests of Reports, and Codes of the various States. 4. Chronological Lists of the English, Irish, Scottish, Canadian, and Indian
Reports, Digests, Codes, and Compilations. These lists embrace not only the reports which are included in what are usually known as the regular series of reports, but also the volumes that, by reason of their scarcity and price, are rarely possessed by either private or public
libraries. 5. Lists of Collections of the British Statutes, Parliamentary Documents, and
Reports of Debates; Collections of Digests of English Decisions; Col-
Foreign Trials. 6. Table of British Regnal Years; Explanatory Notes as to the British Law
Terms; the Law Reports, Classification of English Statutes, &c. 7. The title, number of volumes, size, place, and period of publication of the
various American and British law periodicals whose publication ceased prior to the year 1873; the title, number of volumes, size, place, term, and period of publication of the American and British law periodicals in
existence during the year 1873. 8. Tables exhibiting the corresponding volumes of the original English Reports
to those in the American reprints known as the English Common Law
Reports, English Chancery Reports, &c. 9. Seventy pages of abbreviations used in references to American and British
Law Reports, and in Roman Law Citations; and an Index to subjects of very nearly two hundred octavo pages, in which are grouped, under the various titles and sub-titles of the law, the Treatises, Digests of Decisions, Collections of Cases, Law Periodicals, Trials, Reports of Cases, &c., relating to the same, with the classification as to authors into American, British, and Continental, and the designation, by means of italics, of the name of the author, compiler, &c., whose work, or its most
recent edition, has been issued during or since the year 1869.
A careful examination of the volume justifies hearty commendation of its plan and confidence in its general accuracy.
The brevity of the titles in the Catalogue of Authors may be regarded as a defect from a bibliographical point of view, but is partly compensated by facility of reference, which is no small merit in a library manual, while space