« AnteriorContinuar »
which, quite aside from the point upon which par- statute books are bristling with penal enactments ties are divided, is every year assuming larger and which have little effect in repressing the practices almost ominous proportions; in nearly all our States against which they are aimed. The common mode we find a forest of intricate legislation aiming at of attempting to make such legislation more effecthe impossible task of finding intangible and non tual is simply to make still further and more rigorvisible property, and exacting from it a tribute ous laws, that is, to administer heavier doses which, in a vast number of cases, would amount to of a remedy already proved to be ineffectual. Were confiscation if it were really collected. The unsuc we to take an account of the moderate amount of cessful efforts are followed by additional enact repression actually effected by such legislation and ments of increased vigor, bristling with penalties of the evasion, false swearing, private animosity for evasion, and, in most instances, the only results and contempt for law engendered by it, the balance of the more stringent laws are to increase perjury would be found wofully on the side of public and diminish the actual revenues received. It is
mischief. amazing to think that enlightened States, abound
I do not intimate that public reformation may not ing in productive wealth, which would easily afford
in many instances be aided by restrictive or proan ample revenue, if properly tapped, should per-hibitory legislation even in such matters as indulsist in retaining an intricate system of taxation,
gence in intoxicating drinks, but reason and expeeven after it has proved to be abortive for its
rience unite in proving that such legislation cannot avowed objects. And yet this is what is every be made effective for its purpose, unless it reprewhere exhibited. The failure to fully reach the real
sents the deliberate resolve of the overwhelining fund of annual production necessitates an exorbi
mass of the community. A society which has not tant charge upon what is reached, and the alterna
the moral energy to enforce its will in any particutives offered to many are confiscation, emigration or
lar case should never embody that will in the form perjury, the latter being the one most frequently
of a statute. accepted. It seems incomprehensible that a people always be preceded by a corresponding degree of
A law, in order to be efficacious, must adopt a policy which fosters the increase of crime,
moral education extending through the community. contempt for the law, and the debasement of char
There are other directions in which laws become acter. In some communities, notably in the city of
agencies for mischief rather than good because they New York, the impossibility of a general and equal enforcement of the law, and the revolting injustice subjects for legislation. There are large numbers
are framed to regulate matters which are not fit of a partial effort have had the effect of leading the
in all free societies with whom law-making amounts executive officers to wholly abandon any serious at
almost to a passion. Legislation is the source of so tempt at a rigid enforcement. And yet these worse
many advantages that many fall into the error of than useless results of legislative action seem no
thinking that it is a blessing in se, and not, what it where to lead to any serious inquiry into the real
more correctly is, a choice among evils, and it is so nature of the difficulty with the view of establish
easy among us to procure the passage of laws which ing legislation upon a more enlightened basis in ac
do not immediately conflict with some private incordance with the principles of human nature and
terests that many find pleasure in the work, and the teachings of economic science. Great States, fancy when engaged in it that they are public benefor the want of legislators properly instructed in
factors in devoting their time and talents to this the weighty business of legislation, are left to stand
form of public service. In our legislatures, too as spectacles of bewildered imbecility.
much engrossed with party and personal schemes, The condition of what are called sumptuary laws
it is not difficult to induce acquiescence in proposin the various States is equally discreditable to our
als for new laws which are plausibly presented. knowledge both of the science of legislation and
The statement of expected benefits is received with the teachings of experience. The common notion
easy credulity. Little inquiry is made concerning that, somehow, laws execute themselves seem to hold
the possible mischiefs which may follow from the its sway over the public mind, and even over that adoption of a proposed measure, and if no one of legislators, in the face of a thousand demonstra- offers energetic opposition it is apt to pass. It is tions to the contrary. Multitudes will busy them
here that the ambitious experimenters and reformselves with the work of securing the passage of ers, not to say cranks, find their opportunity, and laws under the illusion that plenty of human instru- they are never satistied until their whims are enments may easily be found who will undergo the acted into law. labor of enforcing them against the passions, the A good illustration of the disposition to which I beliefs and the interests of other multitudes. Such have alluded, and of its operation, is found in the tasks can be accomplished only by a despot armed | law passed at the last session of the legislature of with unlimited power. The result is that our í New York which I have noticed, requiring four
lessons a week for ten weeks in each year, in the State was induced to believe that substantially the public schools of that State upon the physiological whole system of judicial procedure in her superior effects of alcohol and other narcotics upon the courts, including all the successive steps in an action, human system, and prescribing text books and should be enacted into regular law; and it was done making other requirements. The mind that framed by the framing and adoption of what was called a this law, carried away with the unfounded notion Code of Civil Procedure. I say nothing here conthat everything upon this subject was known to cerning the merits of the particular system thus science and taught in books, probably supposed adopted, for the eventual result would, I believe, that the whole generation of the youth of the land have been nearly the same whatever its character. would be impressed, as she or he had been, by a What is certain, however, is that by this step prostudy of the subject and would be forever armed cedure was made the subject of ordinary legislation, against the temptations of indulgence. The notion and all subsequent amendments, or enlargements, that intricate and abstruse physiological truths of the system were consequently to be made by legis · could be made Interesting and taught to young lative action. Numerous defects were soon found minds by the ordinary public-school teacher, quite in this code, as would have been the case with the unable himself to adequately comprehend them, is best of such schemes, and no legislative session was sufficiently absurd. It is enough to say that those held in which attempts were not made to cure them. whose interest lies in the sale of intoxicating drinks Besides this, from time to time, some lawyer, gensaw no danger to their welfare in this proposed en
erally not very competent, would conceive that he actment. In a legislature in which this class al
saw some point on which the system might be imways has a goodly number of guardians, no one
proved, and some others would see how a point thought it worth while to offer opposition. It passed, in some of their own litigations could be carried if I believe, unanimously.
a change in practice could be effected. These were Another illustration of the mischief flowing from continually busy, and usually successful, in procurthis same passion for law-making is found in the ing amendments. At the same time the courts were present condition of the law of judicial procedure burdened with the resolving of the multitude of in some, perhaps many, of our States. Judicial
questions which arose upon the interpretation of new procedure embraces the various successive steps by provisions. The work of legislative amendment which a court clothed with jurisdiction over a par
and judicial interpretation, thus constantly proticular subject matter and the interested parties ad-ceeding pari passu, after the lapse of some years invances to a final judgment. It should, of course,
creased the volume of legislation and comment to be methodical and known to those who are
such an extent as to call for thorough and systequired to practice under it, and should, therefore, matic revision. This task was committed to hands be regulated by rules; but these rules, being merely far less skillful than those which first contrived the machinery for the accomplishment of an end, scheme, and resulted in the production of a text of should not be made superior to the end itself and prodigious volume, dismaying to the student and should, consequently, be capable of being relaxed disgusting to the practitioner. The original author where a rigid observance would, as it often must, of the Code denounced it an abomination, and yet in consequence of the neglect, ignorance or over
it was enacted. The work, however, of legislative sight of the parties, defeat justice. They should | amendment and judicial interpretation still went be clothed as little as possible with the form of in
on, and still goes on, making the practice of the law exorable law. Surely none are so well qualified for more and more uncertain and hazardous. The prothe work of frami:ng and moulding these rules as fession throughout the State is now calling out the courts which are called upon to administer loudly for some form of relief, and no one seems them; and none so ill-qualified as legislative bodies able to suggest a hopeful remedy. The judicial decomposed of non-professional members, for the cisions interpreting the provisions of this confused most part.
The obvious conclusion from this is system, is collected together, would fill many more that judicial procedure, except to a certain very than 100 ordinary volumes of reports, representing limited extent, is not a fit subject for legislative ac an amount of forsenic strise and professional and tion, but should be governed by rules of court. judicial labor — all unnecessary — far exceeding
Let me point out some of the miseries which a that which many whole States have required for all different view of this matter has brought upon the the purposes of their judicial establishments. If State of New York; and I venture the prediction we should compute the amount of money lost and that if they are not already felt by other States wasted in employing the judicial and professional which have, to a greater or less extent, followed her force engaged in this work, added to the losses of example, they sooner or later will be. Something time by clients, and the defeats of justice. the sum more than fifty years ago the Legislature of that I would be amazing. And I do not believe that any
of those who have heretofore thought that this ex- just limits of the province of legislation, that is to periment in judicial procedure was worth trying say, determining what subjects are really fit for could point out a single substantial benefit which legislative action, as distinguished from those which has come from its adoption. There is a ready proof should be left to the disposition of courts, or to the of the fundamental error of the whole seheme. discipline which proceeds from the moral agencies Take the New England States in which the old of society. I am not unaware of the extent of the practice has been retained, or superseded by some field of inquiry thus embraced. It includes the simple scheme confined, so far as legislation is con fundamental elements of economic science, and the cerned, to a few general outlines and leaving all the principles upon which sociological inquiries are details of practice to be regulated by rules devised generally agreed. I do not mean that these sciences by the court; the judicial decisions in none of them must be mastered in their details; but that their for the entire period during which the New York main features should be known so far as to enable Code of Procedure has been in operation would
the student to avail himself of their 'results and to scarcely occupy space more than that of an ordinary employ their methods. The other important branch volume of reports, and we hear no substantial com
is the study of the proper manner in which subjects plaint from their lawyers or their people that justice fit for legislative action should be treated, that is is defeated or delayed by the requirements of formal
to say, the art of framing appropriate and effective procedure. The signifiance of these facts is unmis- laws. The ordinary training of the lawyer goes far takable.
to qualify him for this work, but there should be
added to it a study of the varions legislative deI attribute these errors in legislation upon which
vises of different communities and of the degree I have been commenting, principally to to the two
of efficiency with which they operate.
I can causes already mentioned, and which are closely scarcely set any limit to the public benefit which allied with each other; first, the common passion, would flow from the presence in our legislative the cacoethes, which afflicts so many, of framing bodies of even small numbers of conscientious new laws; and second, the disposition, or the will
lawyers well exercised in these two branches of ingness, common to all legislatures of acting upon legislative science. matters which are not proper subjects of legisla
I must not omit to notice another aspect in which tion at all. I know of nothing more needed among
the review which I am called upon to give of the us than a depeened conviction that the sphere of legislation of the several States is designed to be legislation, like that of other forms of human ac
useful. I refer to the effort which is now receivtivity, has its proper limits which can never be ex
ing so much attention, and in which our association ceeded without mischief, and a sufficient knowledge
takes much interest, to bring about a certain measof what these limits are.
ure of uniformity in our laws. This association now has an exceedingly im
The laws of a people should, of course, be devised portant, able and diligent committee upon the sub
and shaped in accordance with their traditions and ject of legal education. I respectfully invoke the their character, and so far as these differ, it is attention of that committee to the inquiry whether, neither possible nor desirable to have entire uniconsidering the various functions which the mem
formity in them. But the resemblances in characbers of the bar are called to perform in American
ter and traditions between the people of the States society, a knowledge of the science of legislation of the Union are far greater than the differences, ought not to be regarded as an appropriate, if not
and this renders uniformity in many particulars an indispensable, part of that education, and ade.
practicable. And where mutual relations are so quate provision be made for it in our schools for
close and intercommunication so general and conlegal instruction. The article of our Constitution
stant, the difficulties and embarrassments arising wnich makes it my duty to review the new legisla- from different systems of law are numberless. If a tion of the several States properly implies that we
beneficent despot had absolute rule over our sixtyare not alone interested in such legislation as con
five millions, liis ambition, and perhaps his duty, cerns our profession, but in all noteworthy legisla- would be to force a certain measure of uniformity tive action. Existing legislation is in large measure
in law everywhere; and if our national government the work of our profession, and it is in our power had the constitutional authority to effect the same in a corresponding degree to shape and mould the result, that authority might perhaps be approprilegislation of the future.
ately exercised to that end. There are none who, In urging the increased study by our profession even for such a blessing, would accept a master, and of the science of legislation, I mean that science in few who would be willing to surrender the greater its broadest extent. It should embrace, as I con- advantages which are supposed to flow from the ceive, two principal branches; one relating to the I division of our country into separate States, sove
reign for the purposes of domestic legislation. But more into identity. It was this ideal law wbich is there no way in which a people essentially one in the great Roman orator and writer declared, in a fact, if not in form, can secure to themselves the burst of immortal eloquence, was not one thing obvions and prodigious benefits which would arise at Rome and another at Athens," and the universal from a uniformity in the legal rules which they are
cultivation of the science of unwritten jurisprurequired to observe ? Our unwritten law is already dence will eventually produce the same plant on substantially the same, and that I have always re every soil. But the positive legislative determinagarded as an impressive reason for abstaining from
tions of nations can be assimilated, or reconciled
Much has any attempts to reduce it into written forms, which only by conscious and concerted action. would at once (being made by different legislatures) already been accomplished in this direction by tend to plunge it into diversity. Whatever can be treaties, and by those concurrently adopted reguladone to secure this desired uniforinity must be
tions operative upon the sea, the common domain done by voluntary concerted action. The attempt
of all nations. The wise futherance of this beneis a bold one, but the tendencies all favor it, and ficent work depends upon the intelligent oversight much may be accomplished by taking advantage of and co-operation of the enlightened jurists of the
world. them. The appointments made by several States during the last year of commissions designed to forward this effort afford us much encouragement.
Abstracts of Recent Decisions. Tbis subject has aspects not limited by the boun
TRADE-MARKS daries of States and nations. The marvelous utilization by science of the forces of nature has cor
MENT. — A decision of the high court of chancery respondingly developed facilities and desires for
in England, granting to defendant, against comcommercial and social intercourse among nations. plainant's opposition, the right to register as a tradeA necessary consequence is a tendency towards the
mark the words alleged to be an infringement, is obliteration of the sharper features of national dis
no bar to a suit here for an infringement by using tinctions and a gradual assimilation in manners,
such words. (City of Carlsbad v. Kutnow (U. S. customs and moral standards, which begins to seek,
C. C., N. Y.], 68 Fed. Rep. 794). and will more and more seek, a uniformity in gene
TRUST AND TRUSTEE ral law. All efforts to help forward this uniformity On the death of a person in possession of lands must begin with a study by each State of the legal | under a contract of purchase, leaving a widow and establishments of the others. The jurists of other
minor son, his father with his widow's consent, nations are beginning to turn their attention in this took possession of the property, sold the personalty, direction. A society for the study of comparative paid the debts, and by virtue of the contract, paid legislation has been recently formed in Great
the balance due for the lands, and took title in his Britain, and we have reason to know that it is own name: Held that he or any one purchasing desirous of opening communication with our Asso
from him with notice of the facts, took the title in ciation with the views of co-operation in the com
trust for the heir, whether the money to complete mon object.
the purchase was paid from the proceeds of the More suggestive than all else is the eager embrace son's personal estate or from the father's own fund. by ancient eastern peoples, waking up from the in- (Roggenkamp v. Roggenkamp, U. S. C. C. of App. tellectual sleep of ages, of the ideas and institu
68 Fed. Rep. 605. tions, both of peace and war, of western civiliza
TRUSTS - FOLLOWING TRUST PROPERTY. Where tions, wrought out and fashioned during their long trust funds have been wrongfully invested by the slumber. The recent treaty between the United trustees in securities which remain in his hands, the States and Japan by which we agree to submit our
owner of such funds is entitled to follow the same, persons and property within the territory of the in the form into which they have been converted, latter power to the same justice which is meted out and impress a trust thereon for his benefit. (City to her own people, is an impressive recognition of of Spokane v. First Nat. Bank of Spokane (U. S. C. the beneficent influence of uniformity in law. C. of App.], 68 Fed. Rep. 982.)
So far as the unwritten law is concerned, so far WILL_CONVERSION. There a testator orders as the law consists of the simple dictates of right his lands to be sold, the conversion will unless a reason applied to buman affairs, this uniformity will contrary intention distinctly appears, be deemed to be approached as rapidly as should be desired by have been directed merely for the purposes of the the operation of the unconscious forces of human will, and consequently, if those purposes fail or do society. The distant ideals are unchangeable and not require it, it will, in equity, be considered land, everywhere the same, and as the nations advance and be given to the heir. (Moore v. Robbins [N. towards them they fall, or rather rise, more and | J.), 32 Atl. Rep. 379.)
New Books and New Editions.
such a large number of references and decisions of the various States must find an appreciative wel
come from members of the bar. This work also LAW OF JUDICIAL WRITS AND Process IN CIVIL stauds as a means of comparing the decisions on the AND CRIMINAL CASES. By William A. Anderson, subject of torts and is useful on that account. The of the New York Bar.
first volume is divided into nine chapters on General This is a practical treatise on a subject upon which Nature of Torts, Right to Sue, Liability for Torts there has been very little written and it is prepared committed by and with others, Discharge and Limiin a most careful and painstaking manner as is evi- tation of liability. for Torts, Remedies, Wrongs afdent from its arrangement and style. The historical fecting Safety and Freedom of Person, Injuries in introduction in the first part and the clear manner
Family Relations, Wrongs affecting Reputation and in which the various kinds of process are distin- Malicious Wrongs. Volume two is subdivided into guished are presented in such a manner that it is five chapters on Wrongs to Possession and Property, valuable to the practitioner as well as to the student Nuisance, Negligence, Master and Servant, and of law. The second part of the work is divided Common Carriers. Volume two also contains & into twenty chapters, and deals with issue of Pro table of cases cited and comprises over one hundred cess, Its Sufficiency, Validity, Alteration' and and fifty pages. Here, also, is found the index Amendment. This part of the work combines the which contains over fifty pages, arranged well and common law procedure as well as that under our
with reference to both volumes. codes and those States of the Union which have Published by West Publishing Company, St. codes. The third part deals with the Service and | Paul, Minn. Execution of Process and is divided into ten chapters, while part four deals with the return of pro A TREATISE ON LAND TITLES IN THE UNITED cess, and part five with criminal process. It has
STATES. By Lewis N. Dembitz of the Louisville been particularly entertaining to the reviewer of
Bar, author of a Treatise on Kentucky Jurispruthis book to be able to have within one volume a
dence. comprehensive digest, as it were, of the different systems and kinds of writs under the common law
We realize the task wbich the author of this and statutory practice within the proper limitations
work had before him, when he began to compile which would otherwise take a great deal of laborious
the work, for the American law of real estate is inworks and research to obtain.
deed in its practical workings the creature of staPublished by Baker, Voorhis & Co., 66 Nassau
tute. Under these circumstances, and appreciating Street, New York city.
the difficulty of Kent when he dealt with this subject, there then being fewer States, it can easily be realized how difficult was the undertaking of Mr.
Dembitz. HAND-BOOK FOR THE LAW OF TORTS. By Edwin
Even a glance at the list of statutes re
ferred to, reveals the enormity of the task, The A. Jaggard, A. M., LL. B., Professor of the Law of
work is divided into two volumes, the first containTorts in the Law School of the University of Minne
ing eight chapters on Introduction, Description and sota.
Boundary, Estates, Title by Descent, Title by The first principle of this work, which is pub-| Grant, Title out of Sovereigu, Title by Devise, and lished in two volumes, is to establish and apply such Incumbrances. The second volume includes seven portions of what is known as jurisprudence as are chapters on Title by Marriage, Power, The Registry especially relevant to the subject of torts. It also Laws, Estoppel and Election, Judgments Affecting has for its primary cause the statement of the pri- Land, Title by Judicial Process, and Title by Premary principles of law, broad and general in their scription. This volume also contains a list of cases scope, yet qualified and distinguished by the cita-cited which contains over one hundred pages of tions which appear in great number at the foot of matter. Here, also, is found the Index, full and each page. The tremendous number of decisions complete, comprising nearly a hundred pages. The which are ground out by courts of justice make it work itself is a thorough collation of the statute necessary for an active practitioner to have a general law on the subject of land titles in the United work from which he may start with a general prin- States. Its value as a means of readily ascertaining ciple and then refine the knowledge he has obtained the law of another State will be acknowledged by to meet the facts of the case under deliberation. all members of the legal fraternity, as it is a work The development of the law has naturally made both practical and easy of access. many qualifications and refinements and the text Published by West Publishing Company, St. book that deals with general principles and contains | Paul, Minn.