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while it cannot but be sufficiently agreeable, may indirectly be of service to the practising lawyer.
The entertaining character of the book proceeds from the vast number of illustrations which the author brings to bear to enforce his criticisms upon facts. There is scarcely an observation made which the writer does not accompany by an instance or an example, as we used to say in Latin grammar. And he draws, not merely upon the regions of fact, the various reported trials, lives of distinguished lawyers, and from books of history, biography, and anecdote, but upon the realms of fiction with even greater profuseness. He appeals to Shakespeare, Cervantes, Dryden, Byron, Ovid, Phædrus, Juvenal, and a host of others, to illustrate human passions or infirmities. Next to the universal Shakespeare, his especial favorite is Sir Walter Scott. And, from that close observer of human nature, he cites characters and events as from a book of facts. Indeed, there are not wanting men of the present generation to whose boyhood the creations of the Wizard of the North were breathing creatures. Perhaps the author is one of them. But we are not wont to meet our old friends, Quentin Durward, Brian de Bois Guilbert, or William of Deloraine, within the precincts of law calf. However, in this book we keep company, not simply with the learned sages of the law, Sir Edward Coke or Sir William Blackstone, but with Sir John Falstaff, Knight, with Macbeth, Sancho Panza, the Corsair, Hamlet, the Vicar of Wakefield, and a host of these worthies of the brain. At the end, we must confess, that, however agreeable the society, the fatal passion of quotation has rather got the better of our author. It is not merely that his page looks like that of a fashionable authoress, two-thirds of poetry to one of prose, but that the prose has not infrequently the appearance of being made to lug in the quotation, and display the variety of the author's reading. For instance, in the chapter upon a witness under examination, he says,
“A person asked where he has been, will reply by saying what he was doing; leaving the place to be gathered, as it often may, from the employment.
"Where hast thou been, sister?
Who knocks so loud, and knocks so late ?
From Branksome I.'?
'Saw you my master ?
But now he parted hence, to embark for Milan.''
Where is the master, boatswain ?
Do you not hear him?' 4
Capt. Absolute. "And what did he say, on hearing I was at Bath?
2 Lay of the Last Minstrel.
8 Two Gentlemen of Verona.
At first his answer is indecisive, but on pressure it is positive,
Gloster. You know the character to be your brother's ?
Edmund. “If the matter were good, my lord, I durst swear it were his : but in respect of that, I would fain think it were not.
Gloster. It is his.
To all this display of reading it might have been added: A witness, though ready with answers upon immaterial subjects, when pressed to the point most in issue, often fails in recollection,
“Who comes here? A grenadier.
Where's your money? I forgot.” 2 It will be remarked that upon the minor matters the witness answers with military terseness and directness, but that when he comes to the most important point in issue — the hard cash — he falters. Then follows the line,
“Get you gone, you drunken sot!” a style of ejaculation, we may observe, on the part of the interrogator, not unusual, perhaps, in State Trials under the Stuarts ; as, for instance, in the language of Sir Edward Coke to Sir Walter Raleigh, but totally inadmissible, as we conceive, in modern practice.
On the whole, we think that the lawyer who takes up the book will hardly lay it down until he has finished it, and that if it is introduced as a text-book in the law schools, it will surpass even Kent in popularity.
Analysis of American Law. By Thomas W. POWELL. Philadelphia : Lippin
BEFORE examining this book, the only thing we had ever heard of it was that it had been sent by one of our prominent daily journals to an accomplished critic, who, instead of reviewing it, returned a message to the effect that it was not worth noticing. On hearing this (such is the brutality of the critical temperament), we were at first inclined to make the same disposition of the treatise, when an additional fact came to our knowledge which seemed to throw an entirely new light upon the matter. It appeared that the critic, notwithstanding his decision, had retained the book. Thinking that this treatment indicated in his mind a belief that Powell's American Law must have some value, we determined to discover, if possible, what it might be. After much patient investigation, we are obliged to confess our failure. We have found it neither well arranged, nor accurate, nor intelligible, and are forced to the conclusion that the critic, to whom we have alluded, made a fatal mistake. He should not alone have stated his opinion of the volume. He should have returned it.
On the first page of the book we find it stated that “ Ignorantia leges non excusat is an old maxim, more truly now in force than ever.” It may be so, but we can assure Mr. Powell that we never met with it. Perhaps the author had in his mind the maxim, Ignorantia grammaticæ non nocet, or, as he puts it on page 26, “ In modern times a knowledge of the Latin and French languages, however imperfect, is sufficient.” 1 King Lear.
2 Mother Goose.
On page 49, we find the following definition of municipal law: “Civil or municipal law is a rule of civil conduct, instituted by the legislative authority for the government of the people, or which the people have instituted for themselves by a general consent. As a rule of conduct, its object is to direct and command what is right, and to prohibit and prevent what is wrong. One of the principal divisions of the law is, therefore, into right and wrong." Now we will not make any criticisms upon the character of this definition, further than to say that as for a distinction between right law and wrong law, it does not exist; and as to law being instituted by general consent, students are more apt to be deceived by such highly wrought metaphors than to be enlightened. Still, as the general consent of text-writers bas sanctioned such expressions, we will not make theoretic objections. For a similar reason we have, perhaps, no right to demand that Mr. Powell shall stand by his own definition. So when we find on page 41 another, in the course of which the author sets down local usages of trade as one of the sources of municipal law, we cheerfully admit that this may be true in a certain sense, although for the student it would be either untrue or unintelligible. And when the author continues, “Another source of the law is the decisions and practice of the courts which also partake of the nature of law adopted by common consent,” although we have an acute feeling of sympathy for the future student, still we concede that confusion has been so long established by the highest authorities as the principal canon in legal definition, that we have no right to object to Mr. Powell's putting his shoulder manfully to the wheel, and giving what aid he can to make
" that darker Which was dark enough before."
But when we find that in the chapter on “Title by Succession," the term domicile is frequently used, without the slightest explanation of its meaning, we cannot avoid unchristian feelings about the author. And when we see it stated (Preface, p. vi.) that the common law is the same in all the States, and when the student is advised (pp. vii. and x.) to read Parsons's Law for Business Men, a book which the author himself never thought of recommending to any but the laity, - we cease to feel any remorse for those emotions.
In the chapter above cited (ch. viii. p. 245, $ 8), the following statement is made of the doctrine as to latent and patent ambiguities : “In the interpretation and construction of wills, as in cases of all other written instruments, parol testimony is inadmissible to alter or vary its terms, or to explain a patent ambiguity. The will must speak for itself. But where there is a latent ambiguity, arising dehors the will, as to person or subject matter meant to be described, or to rebut a resulting trust, parol testimony is admitted only in these two cases; i.e., latent ambiguity, or resulting trust. In these cases, where the difficulty arises outside the will, aliunde, as where two persons claim the same bequests by the same name, or where there are two or more things answering the description of the bequest, or any such difficulty which does not appear in the will itself, but arises from testimony or circumstances outside the will, parol evidence may be admitted to prove facts and circumstances, to show which of the conflicting things was the true intention of the testator. But any mistake or omission in the draft of the will, or difficulties apparent on the face of the will, can only be
corrected by the intention of the testator as drawn from the will itself, aided by a knowledge of the surrounding circumstances.” A toothsome morsel, truly, for the legal neophyte.
On the whole, the student will find the Comic Blackstone a more instructive compendium of the law. The Bible in the Public Schools. Arguments in the case of John D. Minor et al.
v. The Board of Education of the City of Cincinnati et al. Superior Court of Cincinnati. With the Opinions and Decisions of the Court. Cincinnati: Robert Clarke & Co. 1870.
The facts in this important case are very simple. The plaintiffs, suing, as citizens and tax-payers of Cincinnati, “on their own behalf and on behalf of many others,” allege in their petition that the Cincinnati Board of Education, at a regular meeting, passed the following resolutions : –
“ Resolved, That religious instruction, and the reading of religious books, including the Holy Bible, are prohibited in the Common Schools of Cincinnati, it being the true object and intent of this rule to allow the children of the parents of all sects and opinions, in matters of faith and worship, to enjoy alike the benefit of the common school fund.
“Resolved, That so much of the regulations on the course of study and textbooks in the Intermediate and District Schools (page 213, Annual Report) as 'reads as follows: "The opening exercises in every department shall commence by reading a portion of the Bible by or under the direction of the teacher, and appropriate singing by the pupils,' be repealed.”
The plaintiffs pray for an injunction restraining the enforcement of these resolutions, on the ground that they are illegal and unconstitutional. The pleadings admit the passage of the resolutions, and the case therefore turned upon the authority of the board to pass them.
It is impossible to state in any concise form the arguments on the one side and the other. They took such a very wide range, – now carrying the court to the consideration of the doctrines held by that great author of the common school system, Pythagoras, now touching for a moment upon the latest commentators on Job, now winging their exalted flight through the pages of Mill on Liberty, and anon hovering for a delicious moment over the contents of “ McGuffey's Readers,” and “Lecky's Rationalism," — that we must refer the reader, who would be at once exact and sympathetic, to the volume itself. . It is enough to say here, that the case seems to have been fully argued, and that only part of the argument is of general interest. It was maintained by the plaintiffs that religious instruction was an essential element in the Ohio common school system under the constitution and laws of the State, relying greatly on the concluding sentence of the seventh section of the Bill of Rights : “Religion, morality, and knowledge being essentially necessary to good government and the happiness of mankind, schools and the means of instruction shall for ever be encouraged by legislative provisions, not inconsistent with the rights of conscience.” The plaintiffs contended that, according to the ordinary rules of interpretation, the words " schools” and “ the means of instruction” were to be construed according to custom, and that long-established custom, dating far beyond the Bill of Rights, had made religious instruction a necessary part of every school system
in the State. Again, it was argued that the legislature of the State, in a series of enactments upon the subject of education, declared the purpose to be the promotion of “piety," “ religion,” “ morality,” and “knowledge,” thus indicating the general policy of the State. This same general policy was also illustrated by the laws relating to apprenticeship, providing that the apprentice should, at the end of his term of service, be furnished with “ a new Bible," by the law exempting from taxation “all public school-houses and houses used exclusively for public worship,” by the Sunday laws, the law against profane swearing, a section of the Penitentiary Act requiring the appointment of a chaplain, and other similar enactments, all showing, according to the argument of the plaintiffs, that the “religion of the Bible is the only religion known to the constitution and laws of the State of Ohio, and instruction in its elementary truths" is an essential part of its school system. The plaintiffs also relied upon that class of cases in which it has been said that the Christian religion is a part of the common law of various States. Vidal v. Girard's Ex'rs, 2 How. 127, 198. It was urged, moreover, that as the money for the support of the schools was raised by taxation of the whole people, and one of the objects of the schools was peace and good order, the whole people had the right to demand that instruction should be given which should fit the youth of the State to be peaceful, orderly, and useful citizens, and that instruction in the Bible was indispensable to this end.
The plaintiffs further denied that the Board of Education had any discretionary power, arguing that if they had power to prohibit religious instruction, they had absolute power, and they might, by any arbitrary order, as by prohibiting all instruction except in Sanscrit, defy the power of the courts, and break up the common school system altogether. Another answer to the plea of discretion was that though the board might be vested with such discretionary power, yet if in the exercise of it they stated reasons which were clearly erroneous, the courts would interfere. Story's Eq. Jur. $ 955 a.
The defendants claimed that the resolutions were within the discretionary power of the board, and that whether this was so or not, religious instruction in the schools was illegal, as violating that provision of the Constitution which prohibits any interference with the rights of conscience, and also the provision that no religious sects shall have any control of the school fund. As to the argument of the plaintiffs, that Christianity was recognized by the State, it was replied that this doctrine was so broad, that, if once admitted, there was no stopping short of the further admission that there existed in the State of Ohio an established church, from which conclusion the most alarming consequences would flow; that if the case at bar was decided in favor of the plaintiffs, the decision would amount to the establishment of a religious tribunal, whose duty it would be to formulate from time to time a school ritual, obligatory upon all the tax-payers of the State. “If religious instruction may be given in the schools, and this court may enforce the duty by the process of injunction, then surely it cannot be denied that by the same means you may provide that such instruction be correct. Surely, then, if the children may be taught that he only who believeth and is baptized shall be saved, your Honors must, at the instance of my Baptist brother, who is to follow me, define the meaning of the original Greek, and restrain the teacher from reading its English translation, except in the words