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to be read or not by the reader, according to his patience, diligence, and his purpose in using the work. It is plain, however, without reference to the skill displayed by the learned author in putting his materials together, that he has made a large collection of valuable materials, such as probably does not elsewhere exist between the covers of a single book. This will give the work a peculiar interest and value to a certain class of readers and investigators. It cannot be doubted that, when it is completed, one who studies it will have a clearer and broader view of the constitution of our country.
JONES ON REAL PROPERTY._ In Two Volumes. A treatise on the Law of Real Property
as Applied between Vendor and Purchaser in Modern Conveyancing: Or Estates in Fee and their Transfer by Deed. By LEONARD A. JONES, A. B., LL.B. (Harv.). Author of Legal Treatises. Boston and New York: Houghton, Mithin and Company, 1896.
This great work has been in the course of preparation for many years, and its appearance has been long anticipated by the profession. If the author had been a machine book-maker – if he had presided over a literary bureau - this book would have appeared long ago. It would have consisted of a jumble of judicial decisions on different topics of the subject, huddled together by different compilers, and presented in a style destitute of uniformity and abounding in overlappings and repetitions. It would not have been the work of a single brain, working slowly and conscientiously, and with no other aid than that which is merely clerical. The previous works of this writer on property law, and especially his work on mortgages, prepared the profession to expect a thoroughly wrought out and comprehensive treatise on the law of real property, and they will not be disappointed. After all, the ultimate test of the success of a legal treatise is the avidity with which it is purchased and the diligence with which it is used by the profession. Perhaps there is no more practical verdict for or against a book, after it has been out a good time, than that of the law bookseller; for he gathers up, in the course of his business, the consensus of professional opinion on the subject. In this case the law booksellers and their traveling men report that Mr. Jones' last and greatest work
goes like hot cakes." It would be the height of presumption for an editor, after such an examination as the hurry of his work enables him to make, to undertake to criticise a work on which an old and experienced author is known to have been employed for many years. The text of these two volumes is founded upon an examination of about 17,000 cases. In many instances, where the citations are numerous, the learned author has taken the pains to arrange them alphabetically according to States, printing the names of the States in more conspicuous type. The advantage of this to the searcher need not be suggested. This work is designed to be complete in itself. It treats of what the learned author calls “ the practical parts of the general subject of real property, which arise in ordinary conveyancing between vendor and purchaser.” The learned author candidly states that it does not cover the entire field of real property law. He states that it would be impossible in two or even in three volumes to state the law and give the authorities relating to the entire subject, but that it is only possible in such a compass to state general principles, with a meager citation of authorities. “I write now,” continues
as I have written heretofore, with the purpose to state, with considerable
fullness, the law of the topics of which I treat,- to state it with such completeness as to make the treatise valuable to the courts and to practicing law. yers. Moreover, I have intended to state the law only as it now is, with as little reference as possible to the law that has become obsolete. I have referred to the old law only for the purpose of stating the principles upon which some parts of the present law are founded. The subjects that present the most difficulties and give rise to the most litigation, I have discussed with the greatest
I have cited a great number of cases, and have cited them after examination for their value. The mode of treatment is similar to that I have adopted in my other works. It will be observed that I take up the subject of real property with the consideration of that part of it which is usually made the closing part in other treatises. Instead of beginning with the least possible estates in realty, going up through the larger estates, and finally at the end coming to something about estates in fee and their transfer by deed, I begin with this part of the subject, and in fact devote these volumes to it wholly. It is the part of the general subject which seems to me to afford the proper approach to all the learning upon it; and moreover it is the part of the subject which, more than any other, is of practical importance. I have not touched upon the subject of mortgages of Real Property in these volumes, except incidentally; for I have already written upon that subject. If I should hereafter write upon other parts of Real Property law, my writings will be published under separate and specific titles. These volumes are complete in themselves."
The publishers have brought out the work in a style worthy of its great merits, and of the reputation of its distinguished author.
S. D. Tu
BISHOP'S NEW CRIMINAL PROCEDURE, VOL. II.- New Oriminal Procedure, or New Com.
mentaries on the Law of Pleading and Evidence, and the Practice in Criminal Cases. By JOEL PRENTISS BISHOP, LL.D. Fourth Edition, being a New Work, Based on Former Editions. Vol. II. Specific Offenses and their Incidents. Chicago: T. H. Flood and Company, Law Publishers. 1896.
The distinguished author says in the preface that this volume is sufficiently explained in the preface to the first. That volume was noticed in this publication soon after it appeared. It appears that the aggregate number of cases cited in the two volumes exceeds 27,000, many of which are cited several times. Dr. Bishop says, in the closing paragraph of the preface: “It is not probable that I shall ever personally revise this book for a new edition. So I commit it to the kind keeping of the profession for whose benefit I have spent a long life of authorship. It is for the future to reveal whether or not I have labored in vain.” The profession have already passed their judgment upon the works of Dr. Bishop, and that judgment is that he has not labored in vain. It is the barest justice to say that he has done more to illustrate those titles of the law which his writings have covered than any law writer of our times,-more, perhaps, than any law writer in our language. Our last letter received from Dr. Bishop was written from a bed of sickness, and it then seemed uncertain whether sufficient strength would return to him to enable him to resume his literary labors. He is held in an affectionate veneration by the legal profession throughout the United States, and they will earnestly hope and pray for his
1 29 Am. Law Rev. 789.
recovery and for a prolongation of his earthly usefulness. If that prayer and that hope should be disappointed, it is still their hope and trust that “there is other, nobler work to do,” in some future life, than when he wrought so long and so nobly here among us. God grant it!
A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW.- Part I. Development
of Trial by Jury. By JAMES BRADLEY THAYER. Boston: Little, Brown, & Company. 1896.
It would be difficult to ind elsewhere, on the same subject, value equal to that packed into the hundred and eighty odd pages of this monograph. Brunner on the kindred subject need not be excepted, with all the credit Brunner's work is justly entitled to. Brunner is indispensable to the student of the sources of the jury; Thayer will be guide, philosopher and friend to every one interested in the administration of justice under the English jury system. No one not familiar with this book can afford to risk a serious criticism or even discussion of the essentials of the jury as we have it to-day — unless, indeed, which passes probability, he knows the subject as well as the author knows it.
Here we have, as nowhere else, an explanation of the jury from the cradle to the present time. As nowhere else, for not even Dr. Thayer himself, in all his learned articles and notes, has given us what we now have from him. The articles and notes, though prophetic of what this monograph contains, are necessarily more or less piecemeal and fragmentary. Now we have a completed picture, in which upon a single canvas the whole dark and intricate course of the jury is for the first time fully spread out. He who would understand the jury may read this book with confidence. There is no shirking of anything; not a phase of the subject that is left untouched; not one that is not illuminated.
The first chapter contains a picturesque account of the older modes of trial, in use before the Conquest; and if the author could not add much to our stock of knowledge upon that subject, he could, with a skillful hand, put many things in a new light, and correct the mistakes of some whose learning was sufficient to be dangerous, as for instance, when Mr. Justice Stephen confounds refusal of trial with trial itself. What, as matter of fact, were the forms of trial in use down to the conquest, and long after, the author proceeds to tell us in detail, from the records themselves, in all their fascinating quaintness.
The main stream of the story begins with chapter two. Here we have the jury itself, in its earlier stages; and thence, through the rest of the book, the development of this piece of legal machinery is traced to the present time. “We are now," says the author, "to trace their earlier (Frankish-Norman) history, transmigration and development of the jury in England, and to follow its strange and wholly peculiar course for some six or eight centuries, to our own time.” And the promise is fulfilled; no more “strange and wholly peculiar outgrowth of the very life of a people is to be found than in this account of the life of our own ancestors.
The third chapter is perhaps the most interesting in the book. Here we are told of the methods of informing the jury in its earlier stage, when the jurors were themselves still witnesses, and the process by which the jury ceased to be witnesses and assumed their modern function of a body of men to be informed entirely, in open court, of the evidence. Most interesting and signifi
cant in this connection is the rise of new trials. How could a judge grant a new trial on the ground, for instance, that the verdict was against evidence, while the jury could appeal to their own knowledge of the facts, not stated before and unknown by the court? If a new trial was to be a mode of correcting the mistakes of a jury — and how new trials were coming to be required even before the change in the character of the jury is amply shown - if new trials were to he allowed and justified, it is plain that the evidence must be made known to the judge, and the jurors must have no private knowledge of their own. And thus, silently and slowly, comes about the momentous change by which jurors became hearers of evidence in open court, and hearers only, so far as knowledge of the facts was concerned — the most momentous change perhaps that has taken place in all the administration of justice at the common law since the recognitions of Norman procedure finally supplanted the ordeal and the duel.
This change brought about another peculiarity in English jurisprudence, which for good or ill must be taken into account in reckoning up the balance of advantage or disadvantage of the jury system a body of rules in regard to admissible evidence, not resting upon logic but upon utility, or rather danger, because of the jury. We quote one passage on the subject from the closing remarks of the last chapter. “The greatest and most remarkable offshoot of the jury was that body of excluding rules [the italics are ours) which chieflyconstitute the English · Law of Evidence.' If we imagine what would have happened if the petit jury had kept up the older methods of procedure as the grand jury in criminal cases did, and does at the present day,- if, instead of bearing witnesses publicly, under the eye of the judge, it had heard them privately and without any judicial supervision, it is easy to see that our law of evidence never would have taken shape. * This it is, - this judicial oversight and control of the process of introducing evidence to the jury, that gave our system birth; and he who would understand it must keep this fact constantly in mind.”
We had noted many other passages for mention or comment, but to do anything like justice to the half of them would make this review far too long. We stop in the midst and reluctantly lay our book aside, putting it not quite out of sight, certain to take it up again and again for “light and leading."
MELVILLE M. BIGELOW. BOSTON.
OTHER BOOKS RECEIVED
The Legislation of Congress for the Government of the Organized Territories of the United States, 1789–1895. By Max Farrand. June, 1896. Wm. A. Baker, printer, 251 Market street, Newark, N. J. 1896.