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wider range, and his Series will embrace all important cases of probate law which may be decided in the various courts of the state.
A large portion of this volume is occupied with the case of Delafield vs. Parish, otherwise known as the Parish Will Case, in which the question of testamentary capacity was elaborately argued both by the bar and the bench. Mr. Redfield has wisely given the profession a summary of the able and exhaustive arguments of counsel. There is a complete view of the case, both before the Surrogate and the Court of Appeals. This case alone will amply repay the profession for the purchase of the book. There is a somewhat singular difference of opinion between Mr. Smith, the regular Reporter of the Court of Appeals, and Mr. Redfield. Mr. Smith (11 Smith, p. 66) states that the court did not intend to overrule the celebrated case of Stewart vs. Lispenard, 26 Wendell, 255, while Mr. Redfield maintains that a majority of the court did, in effect, overrule that decision, (201, note.)
There are other cases of interest and value, which we have not space to notice, except simply to allude to an interesting one, involving the validity of a gift causâ mortis, decided by Acting Surrogate Daly.
Mr. Redfield's part of the work is uncommonly well done. He has introduced a feature which we hope will become common, that of giving a table of cases cited as well as of those reported. Though such a list adds to the labors of the reporter, it is of great service to the profession.
T. W. D.
COMMENTARIES ON THE LAW OF MARRIAGE AND DIVORCE ; of Separations without
Divorce; and of the Evidence of Marriage in all issues; embracing also, Plead. ings, Practices, and Evidence, in Divorce Cases; with Forms. By JOEL PRENTiss Bishop, author of “ Commentaries on the Criminal Law.” Fourth edi. tion ; 2 volumes. Boston: LITTLE, BROWN, & COMPANY. 1864.
The author of this standard work, which has acquired high and deserved reputation for learning and accuracy, upon both sides of the Atlantic, has now recast it, and after making large additions presented it, in two volumes. In the new arrangement portions of the work
to have been considerably transposed, but we are furnished with a parallel table of references, so as to save all embarrassment in finding references to either of the former editions, in the present one.
The work has been so long and so favorably known, that we should not feel justified in occupying more space than to assure the profession that the additional matter is wisely selected, and judiciously ordered, and that none of those, whose practice falls within the range of these volumes, cau afford to be without them.
I. F. R.
AMERICAN LAW REGISTER.
There are those, we regret to say, eminent in the profession, who deem it their duty to oppose, ab initio, all effort at change, in form or substance—for better or for worse;"—men more blind than justice, and whose only maxim is “ Stare decisis ;”—men educated and disciplined in one stage or condition of society, who forget that our social condition is constantly changing, and that adaptation to that social condition is the only true test of justice. It is manifest that the principles, which these adopt, would, if fully developed, inevitably tend to bind us to the darker
of the past,—to fetter that freedom in progress and civilization (of which the law should rather be the safeguard and promoter), and thus ultimately to defeat that only legitimate end of all law—the public good.
Rut, on the other hand, law, as well as religion, has had its Luthers, its Calvins, and its Melancthons. From the days of the Spartan lawgiver to the present time, every age has produced its reformers; men of benevolent hearts and comprehensive intellects, which elevated them to a point of vision, whence they might look beyond their own narrow sphere of action, and know and appreciate the wants and condition of society. And these, though few, have numbered among their ranks the brightest stars of the Legal Constellation. Vol. XII.-37
But why should this noble work be confined to so few? Why should not the study of man and his surroundings—of human nature, as it exists, in all its phases, and the necessity of adapting the law thereto, become an essential part of every legal education ? Thus would the standard of the profession be raised. Thus might every one of its members, each in his own sphere of action, when the opportunity was offered, effect such changes as seemed necessary or proper. And thus might each in his own degree become a benefactor of his race, and perform that high duty, which he owes to society, to justice and right, whose allegiance no human being
Such is the reform, which we would commend. And such, too, we believe to be the only true means of effecting this important object. It cannot be accomplished at one fell swoop. It must be attained by constant and continued effort. For, while society continues to progress, and there remains implanted in the heart of man a desire to improve his condition, the reformer's work is never done.
We are no advocates of that so called spirit of reform, which can see nothing but absurdity in the great work of ancient wisdom, and which aims at nothing short of an entire abrogation of many of its long-established principles, for the purpose of substituting some untried theory: Long's Reflections, p. 4 (of preface). That is the abuse. The true spirit is contained in the language of the prince of reformers, Bacon, when he says:–«The work, which I propound, tendeth to pruning and grafting the law, and not to ploughing up and planting it again ; for such a remove I should hold indeed for a perilous innovation.” To accomplish this true reform, the standard of excellence in professional ethics and education must, as above intimated, be raised. Nor is this all that is required. The discovery and regret of an evil, it is true, are the first steps towards its removal. But these alone can never effect the reformation. As has been truly said by one, who has done much for the honor of his profession (Hon. D. D. Field): “ The regret that this noble profession of ours, which can accomplish results so beneficial, which numbers among its members so many of the wise and good of all ages, now falls below its ideal standard, is not enough.” “It is wiser and manlier to retrieve than to regret.” The retrieving spirit must be adopted. Men must devote some attention to ascertaining what the law should be, as well as what it is, and has been; and when the opportunity offers, there must be action. But here we reach the most difficult and hazardous stage of all reformation. For Johnson has reminded us, “the hand which cannot build a hovel, may pull down a temple." Provide the remedy, ere you lay hands upon the seeming imperfection. If this be done, all danger will be removed. And it is only by constantly calling attention to the subject of reform, and encouraging its investigation, until it has become familiar to all, that we can ever hope to accomplish this happy result, and guard against dangerous innovation. The good of society is best promoted by stimulating the individuals, of which it is composed, to the exertion of all their talent and industry in its behalf, by that great motive power—the hope of benefiting those, who are near and dear to them. This is the way to serve your country, and to make her great, flourishing, and respected ; “ the happy effect of following nature, which is wisdom without reflection, and above it."
The members of the profession, then, must, as a body, take upon them the office and duties of the Sexviri of Athens, who, as Lord Bacon, citing Æschines, observes, “were standing commissioners, who did watch to discern what laws waxed improper for the times, and what new law did in any branch cross a former law; and so ex officio propounded their repeal:" Bacon's Law Tracts, p. 19, (2d ed).
If this high stand be taken, and the fruitful seed of reform be sown in the heart of the profession, it needs no prophet to foretell the prosperous growth of that seed; and we need ask for no more lenient judges of its fruitfulness, than time and experience. How noble will be the work! How rich to every true American heart, the reward! And here, we cannot refrain from expressing the hope-nay, more—the belief, that the true spirit of reform is fast gaining ground in this country, and the hour near at hand, when it will bring to maturity its richest fruits. Then will our laws be
transmitted to posterity pruned and grafted, and the true ends of justice be subserved.
All legal reform may, as to the mode in which it is effected, be embraced under three heads, viz.,—that effected—1st. By Direct Legislation, in abrogation or derogation of existing law. 2d. By Accretion. And 3d. By Desuetude.
The influence of the first is felt only by particular laws, or rules of law, and is limited to the letter of the repealing statute. The influence of the second is more general in its nature, and is felt by distinct branches of the law; as the addition of matter to one portion of a material object changes the centre of gravity of the entire mass; or, as the application of a distant impetus, to motion already compound, alters the direction of that motion.
The influence of the third is felt in each of the above modes, and, though negative in its nature, it is continually at work, and as years roll by, effects changes as salutary and as great as any that may be accomplished by positive enactment.
But the last needs not the helping hand of man, to aid it in its workings. It can itself only be effected by those great changes in society, which are constantly taking place, and which, in time, render past laws, by their utter non-adaptation to man's wants and condition, to all intents and purposes null and void. It is in the first and second that the broad field of usefulness lies open to the profession; and in them alone, can professional talent, industry, and discretion be exerted to advantage. By the study, systemization, and development of these two methods, in all their numerous subdivisions, it is believed, each individual may find his own appropriate field of labor, and all work together, as one man, for the common good.
And multiform, indeed, are the workings of those systems. Every reversing decision by our courts is, in one sense, a reform. Nay, every decision, which is not simply an affirmation of a previous one, is a reform under the second method. This second method is open to all, and is peculiarly adapted to our system of jurisprudence. Herein rests the enduring element of the common law. Its susceptibility of change, and thus, perfect adaptation to all