Page images

points—it professes to be and is an original commentary. It aspires to be a textrbook 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 his “ 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 briefly—his 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, dz 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 oases 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 8Xi;r:I1SlV6 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 May0r’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, dz 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 Dudley 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 oflicers, 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 oflicers, 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 simultaneously 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 following 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 habits 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 honour to the state itself, but may, we hope, _ra_n.k 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.

(‘ourts of Requests. A Practical Treatise on their Constitution and Procedure, dzc. 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 distrwts Of Ondorowe (which is in the southern division of Nuwerakalawiya) of Oodiyancool-am, Akcrapatoo and Tittewelgandohaye Corle, Valyeladeinben, 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.

Punch;/ha1ny likely to be cited to the astonished Barons of the Exchequer. 8

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 remarqnables, servant a la connaissance des Relations étrangeres des Puissances et Etats dans leurs rapports mutuels. Continuation du grand recueil cle G. F. de Martens, par Charles Samwer.

Tome XVI. Partie lere. Gottingue, Dieterich, 1858. (D. Nutt, Strand, London.)

l\IAaTENs’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 regulations 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 are evidence of the vast efforts at that time made by Sardinia for the extension of her commerce; the treaty of 1854, between Japan and the United States; the treaty of 1854, between the United States and Russia, relative to the rights of neutrals on the sea; the treaty of commerce entered into in 1857, between France and Russia, &c. &c.

As regards treaties in which Great Britain is directly concerned, this collection is not, and it cannot be expected that it should be, nearly so complete as Mr. Herts1et’s invaluable collection of treaties subsisting between Great Britain and foreign powers, but as it comprises treaties between all nations, it supplies much information which Mr. Hertslet’s work does not afford, and may be consulted with advantage by those desirous of tracing the progress of other nations besides our own, and of learning something of the relations of foreign states amongst one another.

Amongst the publications notice whereof we must defer, are the following :—Mr. T. S. Paton’s treat-ise on Stoppage in transitu _; and a. Manual of the Roman Civil Law, by George Leapingwell, Esq., LL.D., &c. Two pamphlets on Trial by Jury are also before us. The one entitled, “ Unanimity on Trial by Jury Defended," is by Mr. G. Rochfort Clarke. The other entitled, “ The Dark Side of Trial by Jury,” is by Mr. Joseph Brown. The former supports the institution with undoubting and undoubted orthodoxy. The latter assaults it with unshi-inking courage and vigour. \Ve purpose to deal with these learned pleaders and experienced counsel according to law, on another occasion.

« PreviousContinue »