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fessional reader," says the author, “who carefully examires it from beginning to end, will fiud such obscurity of arrangement, and such inexact and inconsistent phraseology, as to conclude that safe and rational rules for its coustruction can hardly be rested upon its literal expressions; but that it must be read, as far as may be, by the light of that broad and wise policy in which it was manifestly conceived." With respect to the authorship of the statute, Lord Ellenborough in Wain v. Warlters, insisted to a great extent on his construction of the word “agreement,” because he believed that Lord Hale drew the bill, who was
as competent to express as he was to conceive the provisions best calculated for carrying into effect the purposes
of the law. This was not the view taken by Lord Mansfield, who remarked that the act was not passed till after Lord Hale's “death, and was brought in in the common way, and not upon reference to the judges.” Again, we find Lord Nottingham remarking, in his account of his judgment in Ash v. Abdy, 3 Swanst. 1664 (Anno 1678), “I said I had reason to know the meaning of the law, for it had its first rise from me, who brought the bill into the Lords' House, though it afterwards received some additions and improvements from the judges and civilians.” In the note by Mr. Swanston he says, “that the fact above-mentioned sets the origin of the statute beyond question, though there may be some foundation for the tradition that Sir M. Hale and Sir L. Jenkins assisted in its preparation.” Still, whoever revised the draft, it was left eyentually in an informal state. The general design of the statute is clear, and some parts of it are happily worded, but others as carelessly; for example, the same term is found used therein to express different ideas, and the reports supply abundant evidence to shew that it was not left perfected by any great hand, though it
may have been touched by several masters. However, both we and our legal brethren in America have the duty imposed upon us to understand the meaning and interpretation of the Statute of Frauds, and Mr. C. Browne's book will be found useful for the purpose of attaining this object. Commentaries on the Law of Marriage and Divorce, and Evidence on Matrimonial Suits, By Joel Prentiss Bishop. Third Edition. Boston : Little, Brown, & Co., 1859.
THE Statute 20 and 21 Vict. c. 85, has not removed the necessity of the ancient law of marriage and divorce being thoroughly mastered by the English practitioner (vide § 22). But it has rendered it desirable that the principles on which it is founded should be both more widely and thoroughly understood. There is now and will be greater freedom and scope in the application of the law than formerly. Mr. Bishop says truly, that when practitioners resort to the reports, they find there the light so scattered, so buried beneath forms of practice unknown to them, gathered at so much labour as often to render the search in this direction scarcely compensatory.'
Like Mr. Bishop's commentaries on criminal law, the volume which we are now noticing is not a mere digest of cases or statement of decided
points—it professes to be and is an original commentary. It aspires to be a text-book in which authorities are considered, accepted, rejected, or expanded, and where principles and rules are laid down, and the intention and application illustrated and explained. The writer does not shrink from accepting the responsibility which independent views naturally throw upon an author. The work deserves, and we hope will receive, at our hands hereafter, ample notice. The author believes that bis “ English and even Scotch friends may find,” in his treatise, "not an altogether valueless reflection of the light which has shone from them over the waters.” It is because what we have already observed in the volume in question induces us to think Mr. Bishop is not mistaken in this belief, that we have introduced_thus brieflyhis labour to our readers' consideration. A Treatise on the Law of Attachment in the United States. By C. D. Drake, of St. Louis, Missouri. Second Edition, with the Treatise on Foreign Attachment in the Lord Mayor's Court of London. By John Locke, Esq., Q.C., M.P. Boston: Little, Brown, & Co., 1858.
The following remarks occur in this preface to Mr. Drake's work : “The materials here wrought together are almost wholly American. Great Britain, the fountain of, and exercising continually a marked influence over, our jurisprudence generally, contributes in this department comparatively nothing. In that country the bankrupt law, and the process against the body, leave little room or occasion for a general system of attachment; while the limited proceeding under the custom of London gives rise to few cases which find their way into the courts of Westminster Hall. Here, however, where no general bankrupt law exists, and imprisonment for debt is to a great extent abolished, it is widely different."
If imprisonment for debt be abolished, for which step many are now agitating--the practice of attachment must, we presume, become as extensive here as in America.
Mr. Drake's book would have been more valuable to the English lawyer if the decisions or the sections of the Common Law Procedure Act, 1854, giving attachment of bills of the Garnishee (sects. 61-67), had been referred to.
Mr. Locke’s excellent little treatise on Foreign Attachment in the Lord Mayor's Court in London, has been appropriated by Mr. Drake in his appendix, and forms a useful addition to his volume.
State of New York. First Report of the Commissioners of the Code.
Albany : Weed, Parsons, & Co., 1858.
The Commissioners, whose first report is now before us, were appointed by an act passed in 1857, by the Legislature of the State of New York, to reduce into a systematic code such of the laws of that
state as were not comprised in the codes of civil and criminal procedure already completed.
The laws of the state have been arranged under two great general heads, namely, substantive and remedial laws; or, those which define the rules relative to property and conduct, and those which prescribe the modes of enforcing such rules. The latter are comprised in the Codes of Civil and Criminal Procedure, and the codification of the former has been committed to the present commissioners, Messrs. David Dulley Field, William Curtis Noyes, and Alexander W. Bradford, of whom one at least is well known in this country. They are directed to divide their work into three portions : one containing the political code, another the civil code, and a third the penal code. The political code is to embrace the laws respecting the government of the state, its civil polity, the functions of its public officers, and the political rights and duties of its citizens. The civil code is to embrace the laws of personal rights and relations, of property, and of obligations. The penal code is to define all the crimes for which persons can be punished, and the punishment for the same. These three codes are not to include the laws relating to courts of justice, or the functions or duties of judicial officers, or any provisions concerning civil or criminal actions, or special proceedings, or the law of evidence, all of which are comprised in the codes of Civil and Criminal Procedure.
The present report, made in February, 1858, is accompanied, as ordered by the act, by a general analysis of the projected codes. This analysis, though it is but a mere dry list of the heads of law, clearly shows that those who compiled it have set not only earnestly, but also scientifically, to work.
Hasty and undigested legislation, morever, is not contemplated by the commissioners; for they say, that while they are duly sensible of the importance of having the work done with all reasonable despatch, and of the pressing need of some portions of it at the present time, they are also aware of the necessity of proceeding with deliberation, and submitting no portion of the code till it has been carefully considered. Not only must each part be prepared with care, but its relations to the other parts must be examined, before it can prudently be admitted.”
The propriety of introducing changes in our statute law simulta. neously with the consolidation of that law, has, of late years, been much discussed in this country : the opinion of great American jurists on the subject will, we think, be read with interest, and as the fol. lowing passages apply equally as well to a system of consolidation as to one of codification, we extract them from the report :
“ How far," say the commissioners, “in the preparation of a code changes should be recommended, is a question of much delicacy. They should, without doubt, be cautiously admitted. Law is the growth of time and circumstance. An original system of jurisprudence, founded upon mere theory, without reference to national characteristics, habits, traditions, and usages, would be a failure. The science of government and law is progressive; new regulations spring from necessity, or are
suggested by experience, and the application of the rules of justice to human affairs is constantly modified by the changing circumstances of society. The process is easily understood. In the earlier stages of civilization, when communities are small and isolated, local customs are more distinct, in conformity with local character; but as cultivation and intercourse gradually break down provincial peculiarities, and eradicate partial customs, the tendency to assimilation enables the legislator to disregard inconvenient rules, venerable only from age and habit, and gradually to introduce changes, which have the experience of other communities to recommend them, and which seem better adapted to an advanced civilization. We thus reach a stage in which valuable improvements may be borrowed from other systems and engrafted into our own, without impairing the harmony of our laws by the introduction of unsuitable elements. For example, the law of special or limited partnerships, the offspring of the commerce of the middle ages, unknown to the common law, has within a recent period been adopted into our own legislation with manifest advantage. So we have also seen the influence of our jurisprudence reflected back upon
the country from which we derived our language and our laws; and reforms, readily admitted by our plastic legislation, slowly adopted there, after having been tested by our experience, though the settled constitution and the fixed babits of England might have prevented their origination in that country. Thus, two great purposes are to be subserved in revising the jurisprudence of a nation; one, the reduction of existing laws into a more accessible form, resolving doubts, removing vexed questions, and abolishing useless distinctions; the other, the introduction of such modifications as are plainly indicated by our own judgment, or the experience of others. We are satisfied that this work should be performed with delicacy, caution, and discrimination, that nothing should be touched, from the mere desire of change, or without great probability of solid advantage."
We anxiously await the completion of these codes. The jurists of America have already taken a high position in respect of the science of jurisprudence; and as the codes, before being presented to the legislature, are to be distributed for examination among the experts of the state, and after being subjected to their criticisms, are to be reexamined and reconsidered by the commissioners, we believe a code of laws will be produced, which will not only prove a lasting hovour to the state itself, but may, we hope, rank along with that of Justinian or Napoleon, and be a benefit as an example to the mother country.
We must not close this notice without mentioning that the services of the commissioners are gratuitous. Not even one of the three receives a salary of £1000 a-year.
Courts of Requests. A Practical Treatise on their Constitution and
Procedure, &c. By Louis Nell: Colombo, 1858.
By looking at the bottom of the title-page of the above-named work, we perceive that the Court of Requests treated of therein are those of Ceylon, some of which are situated in the districts of
Ondorowe (which is in the southern division of Nuwerakalawiya) of Oodiyancoolam, Akerapatoo and Tittewelgandohaye Corle, Valyeladenben, and other places, whose names are as well known as they are easy to read and pronounce.
The procedure in the Courts of Request, and the practice followed in the places which sound so curious to the European ears, and which we have as a curiosity given above, are not likely to be of great interest to our English readers ; nor is the case of Appoohamy v. Punchyhamy likely to be cited to the astonished Barons of the Exchequer.
But the work deserves to be noticed, first, because it exhibits the scope and operation of small debts court in Ceylon, and secondly, as affording an example of the very careful and praiseworthy labour of its author; and lastly, as being a specimen of admirable printing and getting up. In this latter point, indeed, we are astonished to see so good an example issuing from a colonial press.
Recueil Général de Traités, Conventions, et autres Transactions
remarquables, servant à la connaissance des Relations étrangères des Puissances et États dans leurs rapports mutuels. Continuation du grand recueil de G. F. de Martens, par Charles Samwer. Tome XVI. Partie lère. Gottingue, Dieterich, 1858. (D. Nutt, Strand, London.) MARTENS's collection of treaties, &c., is well known all over the continent. There are thirteen volumes of the work which bear his name, and the part now before us is the first part of the third volume of Samwer's continuation. It contains a collection of treaties, conventions, and mutual regnlations made and agreed upon between various nations from September 1846 to June 1857. We cannot say that it is a complete collection, for there are some treaties which have found no place in it, and we may instance, among others, the treaty of 1849, between Austria, Modena, and Parma, agreed to by the Pope in 1850, relative to the free navigation of the river Po; the convention of 1854, between Great Britain and Sardinia, for the reciprocal opening of the coasting trade; a similar convention of the same year between Great Britain and Tuscany; and the copyright convention of 1854, between Great Britain and Belgium.
There is also a defect in the collection which requires notice; namely, that, with few exceptions, one text only of the treaties is given; the French text, in cases where there was one, being usually selected. In the construction of treaties reference to more than one text is frequently necessary, and the omission of the various texts somewhat detracts, we think, from the usefulness as well as the completeness of the work.
In the part now published there are several treaties of considerable interest, e. g. :—the treaties entered into in the years 1850-52, between Sardinia, and Austria, Great Britain, France, Belgium, Holland, Portugal, Greece, Switzerland, Bremen, Lubeck, Hamburg, &c., which