which, quite aside from the point upon which parties are divided, is every year assuming larger and almost ominous proportions; in nearly all our States we find a forest of intricate legislation aiming at the impossible task of finding intangible and nonvisible property, and exacting from it a tribute which, in a vast number of cases, would amount to confiscation if it were really collected. The unsuccessful efforts are followed by additional enactments of increased vigor, bristling with penalties for evasion, and, in most instances, the only results of the more stringent laws are to increase perjury and diminish the actual revenues received. It is amazing to think that enlightened States, abounding in productive wealth, which would easily afford an ample revenue, if properly tapped, should persist in retaining an intricate system of taxation, even after it has proved to be abortive for its avowed objects. And yet this is what is everywhere exhibited. The failure to fully reach the real fund of annual production necessitates an exorbitant charge upon what is reached, and the alternatives offered to many are confiscation, emigration or perjury, the latter being the one most frequently statute books are bristling with penal enactments which have little effect in repressing the practices against which they are aimed. The common mode of attempting to make such legislation more effectual is simply to make still further and more rigor. ous laws, that is, to administer heavier doses of a remedy already proved to be ineffectual. Were we to take an account of the moderate amount of repression actually effected by such legislation and of the evasion, false swearing, private animosity and contempt for law engendered by it, the balance would be found wofully on the side of public mischief. may not I do not intimate that public reformation in many instances be aided by restrictive or prohibitory legislation even in such matters as indulgence in intoxicating drinks, but reason and experience unite in proving that such legislation cannot be made effective for its purpose, unless it represents the deliberate resolve of the overwhelming mass of the community. A society which has not the moral energy to enforce its will in any particu lar case should never embody that will in the form of a statute. A law, in order to be efficacious, must accepted. It seems incomprehensible that a people always be preceded by a corresponding degree of adopt a policy which fosters the increase of crime, contempt for the law, and the debasement of char acter. In some communities, notably in the city of New York, the impossibility of a general and equal enforcement of the law, and the revolting injustice of a partial effort have had the effect of leading the executive officers to wholly abandon any serious attempt at a rigid enforcement. And yet these worse than useless results of legislative action seem nowhere to lead to any serious inquiry into the real nature of the difficulty with the view of establishing legislation upon a more enlightened basis in accordance with the principles of human nature and the teachings of economic science. Great States, for the want of legislators properly instructed in the weighty business of legislation, are left to stand as spectacles of bewildered imbecility. The condition of what are called sumptuary laws in the various States is equally discreditable to our knowledge both of the science of legislation and the teachings of experience. The common notion that, somehow, laws execute themselves seem to hold its sway over the public mind, and even over that of legislators, in the face of a thousand demonstrations to the contrary. Multitudes will busy themselves with the work of securing the passage of laws under the illusion that plenty of human instruments may easily be found who will undergo the labor of enforcing them against the passions, the beliefs and the interests of other multitudes. Such tasks can be accomplished only by a despot armed with unlimited power. The result is that our moral education extending through the community, There are other directions in which laws become agencies for mischief rather than good because they subjects for legislation. There are large numbers are framed to regulate matters which are not fit in all free societies with whom law-making amounts almost to a passion. Legislation is the source of so many advantages that many fall into the error of thinking that it is a blessing in se, and not, what it more correctly is, a choice among evils, and it is so easy among us to procure the passage of laws which do not immediately conflict with some private interests that many find pleasure in the work, and fancy when engaged in it that they are public benefactors in devoting their time and talents to this form of public service. In our legislatures, too much engrossed with party and personal schemes, it is not difficult to induce acquiescence in proposals for new laws which are plausibly presented. The statement of expected benefits is received with easy credulity. Little inquiry is made concerning the possible mischiefs which may follow from the adoption of a proposed measure, and if no offers energetic opposition it is apt to pass. It is here that the ambitious experimenters and reformers, not to say cranks, find their opportunity, and they are never satisfied until their whims are enacted into law. one A good illustration of the disposition to which I have alluded, and of its operation, is found in the law passed at the last session of the legislature of New York which I have noticed, requiring four lessons a week for ten weeks in each year, in the public schools of that State upon the physiological effects of alcohol and other narcotics upon the human system, and prescribing text books and making other requirements. The mind that framed this law, carried away with the unfounded notion that everything upon this subject was known to science and taught in books, probably supposed that the whole generation of the youth of the land would be impressed, as she or he had been, by a study of the subject and would be forever armed against the temptations of indulgence. The notion that intricate and abstruse physiological truths could be made Interesting and taught to young minds by the ordinary public-school teacher, quite unable himself to adequately comprehend them, is sufficiently absurd. It is enough to say that those whose interest lies in the sale of intoxicating drinks saw no danger to their welfare in this proposed enactment. In a legislature in which this class always has a goodly number of guardians, no one thought it worth while to offer opposition. It passed, I believe, unanimously. State was induced to believe that substantially the whole system of judicial procedure in her superior courts, including all the successive steps in an action, should be enacted into regular law; and it was done by the framing and adoption of what was called a Code of Civil Procedure. I say nothing here concerning the merits of the particular system thus adopted, for the eventual result would, I believe, have been nearly the same whatever its character. What is certain, however, is that by this step procedure was made the subject of ordinary legislation, and all subsequent amendments, or enlargements, of the system were consequently to be made by legis lative action. Numerous defects were soon found in this code, as would have been the case with the best of such schemes, and no legislative session was held in which attempts were not made to cure them. Besides this, from time to time, some lawyer, generally not very competent, would conceive that he saw some point on which the system might be improved, and some others would see how a point in some of their own litigations could be carried if a change in practice could be effected. These were continually busy, and usually successful, in procuring amendments. At the same time the courts were burdened with the resolving of the multitude of questions which arose upon the interpretation of new provisions. The work of legislative amendment and judicial interpretation, thus constantly proceeding pari passu, after the lapse of some years increased the volume of legislation and comment to such an extent as to call for thorough and systematic revision. This task was committed to hands far less skillful than those which first contrived the scheme, and resulted in the production of a text of prodigious volume, dismaying to the student and disgusting to the practitioner. The original author of the Code denounced it an abomination, and yet it was enacted. The work, however. of legislative amendment and judicial interpretation still went on, and still goes on, making the practice of the law more and more uncertain and hazardous. The profession throughout the State is now calling out loudly for some form of relief, and no one seems able to suggest a hopeful remedy. The judicial decisions interpreting the provisions of this confused system, if collected together, would fill many more than 100 ordinary volumes of reports, representing an amount of forsenic strife and professional and 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 Another illustration of the mischief flowing from this same passion for law-making is found in the present condition of the law of judicial procedure in some, perhaps many, of our States. Judicial procedure embraces the various successive steps by which a court clothed with jurisdiction over a particular subject matter and the interested parties advances to a final judgment. It should, of course, be methodical and known to those who are required to practice under it, and should, therefore, be regulated by rules; but these rules, being merely machinery for the accomplishment of an end, should not be made superior to the end itself and should, consequently, be capable of being relaxed where a rigid observance would, as it often must, in consequence of the neglect, ignorance or oversight of the parties, defeat justice. They should be clothed as little as possible with the form of inexorable law. Surely none are so well qualified for the work of framing and moulding these rules as the courts which are called upon to administer them; and none so ill-qualified as legislative bodies composed of non-professional members, for the most part. The obvious conclusion from this is that judicial procedure, except to a certain very limited extent, is not a fit subject for legislative action, but should be governed by rules of court. of those who have heretofore thought that this experiment in judicial procedure was worth trying could point out a single substantial benefit which has come from its adoption. There is a ready proof of the fundamental error of the whole seheme. Take the New England States in which the old practice has been retained, or superseded by some simple scheme confined, so far as legislation is concerned, to a few general outlines and leaving all the details of practice to be regulated by rules devised by the court; the judicial decisions in none of them for the entire period during which the New York Code of Procedure has been in operation would scarcely occupy space more than that of an ordinary volume of reports, and we hear no substantial complaint from their lawyers or their people that justice is defeated or delayed by the requirements of formal procedure. The signifiance of these facts is unmis just limits of the province of legislation, that is to say, determining what subjects are really fit for legislative action, as distinguished from those which should be left to the disposition of courts, or to the discipline which proceeds from the moral agencies of society. I am not unaware of the extent of the field of inquiry thus embraced. It includes the fundamental elements of economic science, and the principles upon which sociological inquiries are generally agreed. I do not mean that these sciences must be mastered in their details; but that their main features should be known so far as to enable the student to avail himself of their results and to employ their methods. The other important branch is the study of the proper manner in which subjects fit for legislative action should be treated, that is to say, the art of framing appropriate and effective laws. The ordinary training of the lawyer goes far 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 legislation at all. I know of nothing more needed among us than a depeened conviction that the sphere of takable. legislation, like that of other forms of human activity, has its proper limits which can never be exceeded without mischief, and a sufficient knowledge of what these limits are. I must not omit to notice another aspect in which the review which I am called upon to give of the legislation of the several States is designed to be useful. I refer to the effort which is now receivtakes much interest, to bring about a certain measing so much attention, and in which our association ure of uniformity in our laws. The laws of a people should, of course, be devised and shaped in accordance with their traditions and their character, and so far as these differ, it is neither possible nor desirable to have entire uni This association now has an exceedingly important, able and diligent committee upon the subject of legal education. I respectfully invoke the attention of that committee to the inquiry whether, considering the various functions which the mem-formity in them. But the resemblances in characbers of the bar are called to perform in American society, a knowledge of the science of legislation ought not to be regarded as an appropriate, if not an indispensable, part of that education, and ade quate provision be made for it in our schools for legal instruction. The article of our Constitution which makes it my duty to review the new legislation of the several States properly implies that we are not alone interested in such legislation as concerns our profession, but in all noteworthy legislative action. Existing legislation is in large measure the work of our profession, and it is in our power in a corresponding degree to shape and mould the legislation of the future. In urging the increased study by our profession of the science of legislation, I mean that science in its broadest extent. It should embrace, as I conceive, two principal branches; one relating to the ter and traditions between the people of the States of the Union are far greater than the differences, and this renders uniformity in many particulars practicable. And where mutual relations are so close and intercommunication so general and constant, the difficulties and embarrassments arising from different systems of law are numberless. If a beneficent despot had absolute rule over our sixtyfive millions, his ambition, and perhaps his duty, would be to force a certain measure of uniformity in law everywhere; and if our national government had the constitutional authority to effect the same result, that authority might perhaps be appropriately exercised to that end. There are none who. even for such a blessing, would accept a master, and few who would be willing to surrender the greater advantages which are supposed to flow from the division of our country into separate States, sove reign for the purposes of domestic legislation. But is there no way in which a people essentially one in fact, if not in form, can secure to themselves the obvious and prodigious benefits which would arise from a uniformity in the legal rules which they are required to observe? Our unwritten law is already substantially the same, and that I have always regarded as an impressive reason for abstaining from any attempts to reduce it into written forms, which would at once (being made by different legislatures) tend to plunge it into diversity. Whatever can be done to secure this desired uniformity must be done by voluntary concerted action. The attempt is a bold one, but the teudencies all favor it, and much may be accomplished by taking advantage of them. The appointments made by several States during the last year of commissions designed to forward this effort afford us much encouragement. This subject has aspects not limited by the boundaries of States and nations. The marvelous utilization by science of the forces of nature has correspondingly developed facilities and desires for commercial and social intercourse among nations. A necessary consequence is a tendency towards the obliteration of the sharper features of national distinctions and a gradual assimilation in manners, customs and moral standards, which begins to seek, and will more and more seek, a uniformity in general law. All efforts to help forward this uniformity must begin with a study by each State of the legal establishments of the others. The jurists of other nations are beginning to turn their attention in this direction. A society for the study of comparative legislation has been recently formed in Great Britain, and we have reason to know that it is desirous of opening communication with our Association with the views of co-operation in the common object. More suggestive than all else is the eager embrace by ancient eastern peoples, waking up from the intellectual sleep of ages, of the ideas and institutions, both of peace and war, of western civilizations, wrought out and fashioned during their long slumber. The recent treaty between the United States and Japan by which we agree to submit our persons and property within the territory of the latter power to the same justice which is meted out to her own people, is an impressive recognition of the beneficent influence of uniformity in law. So far as the unwritten law is concerned, so far as the law consists of the simple dictates of right reason applied to human affairs, this uniformity will be approached as rapidly as should be desired by the operation of the unconscious forces of human society. The distant ideals are unchangeable and everywhere the same, and as the nations advance towards them they fall, or rather rise, more and every soil. more into identity. It was this ideal law which the great Roman orator and writer declared, in a burst of immortal eloquence, "was not one thing at Rome and another at Athens," and the universal cultivation of the science of unwritten jurisprudence will eventually produce the same plant on But the positive legislative determinations of nations can be assimilated, or reconciled only by conscious and concerted action. already been accomplished in this direction by treaties, and by those concurrently adopted regulations operative upon the sea, the common domain of all nations. The wise furtherance of this beneficent work depends upon the intelligent oversight and co-operation of the ehlightened jurists of the world. Much has On the death of a person in possession of lands under a contract of purchase, leaving a widow and minor son, his father with his widow's consent, took possession of the property, sold the personalty, paid the debts, and by virtue of the contract, paid the balance due for the lands, and took title in his own name: Held that he or any one purchasing from him with notice of the facts, took the title in trust for the heir, whether the money to complete the purchase was paid from the proceeds of the son's personal estate or from the father's own fund. (Roggenkamp v. Roggenkamp, U. S. C. C. of App. 68 Fed. Rep. 605. TRUSTS-FOLLOWING TRUST PROPERTY. Where New Books and New Editions. LAW OF JUDICIAL WRITS AND PROCESS IN CIVIL AND CRIMINAL CASES. By William A. Anderson, of the New York Bar. This is a practical treatise on a subject upon which there has been very little written and it is prepared in a most careful and painstaking manner as is evident from its arrangement and style. The historical introduction in the first part and the clear manner in which the various kinds of process are distinguished are presented in such a manner that it is valuable to the practitioner as well as to the student of law. The second part of the work is divided into twenty chapters, and deals with issue of Process, Its Sufficiency, Validity, Alteration' and Amendment. This part of the work combines the common law procedure as well as that under our codes and those States of the Union which have codes. The third part deals with the Service and Execution of Process and is divided into ten chapters, while part four deals with the return of process, and part five with criminal process. It has been particularly entertaining to the reviewer of such a large number of references and decisions of the various States must find an appreciative welcome from members of the bar. This work also stauds as a means of comparing the decisions on the subject of torts and is useful on that account. The first volume is divided into nine chapters on General Nature of Torts, Right to Sue, Liability for Torts committed by and with others, Discharge and Limi tation of liability for Torts, Remedies, Wrongs af fecting Safety and Freedom of Person, Injuries in Family Relations, Wrongs affecting Reputation and Malicious Wrongs. Volume two is subdivided into five chapters on Wrongs to Possession and Property, Nuisance, Negligence, Master and Servant, and Common Carriers. Volume two also contains a table of cases cited and comprises over one hundred and fifty pages. Here, also, is found the index which contains over fifty pages, arranged well and with reference to both volumes. Published by West Publishing Company, St. Paul, Minn. A TREATISE ON LAND TITLES IN THE UNITED STATES. By Lewis N. Dembitz of the Louisville Bar, author of a Treatise on Kentucky Jurispru dence. this book to be able to have within one volume a comprehensive digest, as it were, of the different systems and kinds of writs under the common law and statutory practice within the limitations proper which would otherwise take a great deal of laborious the work, for the American law of real estate is in works and research to obtain. Published by Baker, Voorhis & Co., 66 Nassau Street, New York city. HAND-BOOK FOR THE LAW OF TORTS. By Edwin A. Jaggard, A. M., LL. B., Professor of the Law of Torts in the Law School of the University of Minnesota. The first principle of this work, which is published in two volumes, is to establish and apply such portions of what is known as jurisprudence as are especially relevant to the subject of torts. It also has for its primary cause the statement of the primary principles of law, broad and general in their scope, yet qualified and distinguished by the citations which appear in great number at the foot of each page. The tremendous number of decisions which are ground out by courts of justice make it necessary for an active practitioner to have a general work from which he may start with a general principle and then refine the knowledge he has obtained to meet the facts of the case under deliberation. The development of the law has naturally made many qualifications and refinements and the text book that deals with general principles and contains We realize the task which the author of this work had before him, when he began to compile deed in its practical workings the creature of sta tute. Under these circumstances, and appreciating 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. Even a glance at the list of statutes referred to, reveals the enormity of the task, The work is divided into two volumes, the first containing eight chapters on Introduction, Description and Boundary, Estates, Title by Descent, Title by Grant, Title out of Sovereign, Title by Devise, and Incumbrances. The second volume includes seven chapters on Title by Marriage, Power, The Registry Laws, Estoppel and Election, Judgments Affecting Land, Title by Judicial Process, and Title by Prescription. This volume also contains a list of cases cited which contains over one hundred pages of matter. Here, also, is found the Index, full and complete, comprising nearly a hundred pages. The work itself is a thorough collation of the statute law on the subject of land titles in the United States. Its value as a means of readily ascertaining the law of another State will be acknowledged by all members of the legal fraternity, as it is a work both practical and easy of access. Published by West Publishing Company, St. Paul, Minn. |