united kingdom, on the same subject, be regarded as wholly irrelevant to the inquiry going on in the New York court, if the English case referred to be at all founded on the common law, and is not wholly built on a recent local statute. For the reasons just mentioned, a consolidation or code of the whole civil law of any State, which retains a respect for precedent, is considered by many to be well nigh impossible. Rome, indeed, frequently codified her laws, but imperial Rome was revolutionary as regarded jurisprudence. The emperors overthrew, by constitution after constitution, the deepest foundations of the political and civil rights of the early Romans. When so much was destroyed, it was comparatively easy to codify, or put into a single volume, all that was left of the old law, together with the imperial additions thereto. In France, in like manner, the first Napoleon successfully carried out his darling design of codifying the various departments of French law. But, in England, or with ourselves, where revolution has left untouched the leading laws of property, and where every case in the English law reports has authority, it is impossible to put our immense mass of common, equitable, judge-made and statutory provisions into a single volume. The civil code of the State of New York does not profess to do this, but refers to extraneous cases. It resembles the institutes of Justinian rather than the code or Pandects. The non-enactment of the civil code, therefore, has not been owing to its destruction of any part of our jurisprudence and its leading to a corresponding enlargement of the area of judicial discretion unfettered by precedent, but is attributable to the fact that it made various changes in the law which the legislature was not willing to accept. The English law digest commissioners intended codifying the whole law of England, both statutory, common and judge-made. But, on reckoning the cost and size of the work, it was found by the commissioners that any complete abstract of English law, as it is, with the cases, would fill at least a hundred volumes, and would cost a sum, for the computation of which recourse should be had to Algebra. Knowing well that the house of commons would not willingly pay for so voluminous a handy-book, the English commissioners have rested from their labors. It would be useless for them to consolidate the statutes alone (although indeed there has been for several years past another commission appointed in England for that purpose), since statutes without cases in civil law are the mere parchment without the stamp, wax, or writing. All civil law is really case-law. In other words, even a statute has not the legal significance intended by the legislature, but merely the interpretation given it by the judges. So truly was it said by the judges to Charles the First, that "every statute hath its interpretation." The legislature, indeed, can correct, by a fresh cnactment, any perverse ten dencies of the judges; yet, strange to say, whenever a conflict of jural sentiment has arisen between the legislature and the judiciary, as in the case of uses, the judges have succeeded in evading the fetters successively forged to check their protean propensities. The prospects, then, of our federal commissioners cannot be very accurately estimated by reference, either, to our State code or the correllative English digest, although, indeed, we hope that our code will be soon accepted by our State legislature. The federal statutes are founded on no common law. They are not to be interpreted by reference to cases decided under the absolute czar, or a sovereign of limited liability and powers. They are not, indeed, their own exponents; but, though there is some federal case-law there is none of it judge-made, or contrary to the express terms of any federal statute. A revision and consolidation, therefore, of the federal statutes are matters that are eminently practicable, and which may be fully realized before the commissioners' term of office shall have expired. Their labors, in fact, are those of the lexicographer, rather than of the jurist. They need not fear, while codifying the law on the legislative or executive power, that they are repealing, by implication, some time-honored rule of the common law. Neither can they feel very uneasy in respect of logical method. For the federal statutes, being entirely positivi juris, do not, in fact, admit of any thing more than a sort of mechanical compression, and a plain correllation of similar sections. The titles prepared by the commissioners will, therefore, as already stated, be rather a series of consolidation acts than an attempt to mould all federal law into one homogeneous and logically distributed statute. With respect to the relations of the commission to law reform, it is useless for us to press upon the commissioners the advice we have tendered the State commission, and to urge them to intersperse their consolidation with reforms. For, we believe that the federal commissioners have been always unanimous in considering that their functions are merely to consolidate without amending the substance of the statutes. They will, however, by a distinct draft, suggest various reforms of the federal law. The reports issued by the first commission do not contain any explanatory notes. Those commissioners merely reported the text of the statutes they recommended. The reports of the present commissioners have notes appended to each of the sections which they propose to alter. These comments are not adapted for the instruction of lawyers, but are compiled for the information of congressmen. The general method adopted to show the nature of the proposed change (when it savors of being more than a merely verbal one), is, to give in the text the law as recommended. A note is then added, which explains the nature of the proposed change. This enables the reader, at once, to decide whether the old or the proposed draft is preferable. He has the text of both before him, with an assignment of arguments for the change. Each title is, therefore, a complete guide for the deliberations of congressmen, so far as the revision is concerned, and legislators are spared the trouble of looking outside the four corners of the document before them in order to ascertain what was the wording of the old law on the point in question. We wish the commissioners all success. We are firmly satisfied that their labors will be completed within the term allotted by congress. Another commission would be a damnosa hereditas, which would weary the public, who might not be disposed to make allowance for the immense labor that is required to "revise, simplify, arrange and consolidate all the statutes of the United States." MUNICIPAL GOVERNMENT. The recent developments of extravagance and fraud in New York city will accomplish little good if they do not lead to an impartial and unpartizan investigation of the causes of municipal misrule, and an attempt to remedy the evil by measures sufficiently radical and far-reaching, to prevent any probability of its recurrence. The trouble is, that New York is not alone in its subjection to dishonest rulers, the evil having become flagrant in many other cities, east and west. By the amount of public peculation, and the openness and boldness with which it has lately been carried on, the metropolis has been made notorious. The "rings" there were stronger, and the fund passing through their hands was larger, than in other localities. And, it may be said, in view of the demands for material aid which were constantly made upon the men who are now charged with misappropriating public moneys, that their necessities were greater. But these facts, while explaining the magnitude of the official dishonesty, do not explain its causes. These causes must be co-extensive with the results, and, as the results have been manifested in most of our American cities, there must be some radical errors in American municipal government. City governments have usually, if not uniformly, been clothed with the power of managing, within their limits, the following matters: police, schools, public charities, public health, streets, fire regulations, and some other minor concerns. Three of these matters, namely, police, schools and charities, are only partially local, the whole State being interested in heir proper management in a greater or less degree. The other matters are wholly local, non-residents having only a possible or contingent interest in them. It will also be noticed that the departments of police, schools and charities have to do with individuals, and the departments of public health, streets and fire, chiefly with property. The power in cities is usually vested in a common council, sometimes with two branches, but more frequently a single body, and a mayor, who, ordinarily, has the veto power. It has become common lately to confer, by legislative act, the police, school and charity powers upon independent boards, over which the common council has only a quasi authority, or none at all. The health and fire powers are usually delegated by the council itself to subordinate boards who, practically, control them. In very many cities there are, in addition, other boards, deriving their powers either from the legislature directly, or from the common council. Some of these boards possess legislative and executive power, some only executive, being merely the agents of the council in carrying out its ordinances. But almost every board assumes to itself the power of enacting regulations which are, in effect, ordinances, and are usually enforced both by the board making them and by police officials. One unfamiliar with the workings of American municipal government, looking at one of our city charters for the first time, would be bewildered with the complexity of the system set forth in it, and would wonder if so many independent bodies, having very little or no inter-connection, could act in harmony. And his wonder would be increased when he found, by actual experience, that they did act harmoniously together and accomplish their design as well as could have been expected had the system been much more simple. But, on further investigation, he would find that whatever might be the merits of multifarious city government, it is very expensive, and that it is difficult to determine just when or by whom the expense is caused. In other words, the complex character of the charter had made it almost impossible to fasten responsibility upon any one for mistake or malfeasance. This multiplication of managing boards is, as it seems to us, one reason for the evils which are afflicting our larger cities. It operates to induce lavish expenditure in two ways: First, by diminishing individual responsibility; and, second, by increasing the number of persons who have control of public funds. While a single body might commit great frauds, it would be apt to do less in that direction than several, and, besides, it could be more constantly and closely watched. Our great mercantile corporations are controlled by single boards of directors. If, in such a corporation, instead of a single board, the powers of management were divided between half a dozen, does any one doubt that official peculation and fraud would result from such a course? The division of power in municipal corporations tends to produce the same consequence. The division of power and responsibility furnishes opportunity and temptation to dishonesty, but the principal, the moving, cause of municipal corruption is elsewhere. Under the political organization adopted in most States, every male citizen over twenty-one years of age has an equal voice in the affairs of government. This voice is, for the most part, expressed in only one way, namely, in the choice of persons to fill official positions. recurrence of the evils which have affected its local administration. We will, at another time, make some suggestions concerning what we believe should be the character of that reform. THE LAW AND THE SAINTS. The law relating to polygamy in Utah is clear enough. Congressional legislation has removed every foot-hold that polygamy was gaining by our indifference. Without a positive legal sanction, indeed, a matter that is criminal at common law cannot become legal. There is no such thing as acquiescence in criminal matters. Even a person who is badly beaten, or otherwise severely injured, is not suffered by the law to forgive his enemy, acquiesce in his wrongs, and compound the felony. Now, polygamy is at common law as indictable as bigamy. If the public and public prosecutors have in Utah and elsewhere connived at such offenses, these crimes, never In consequence of the almost universal prevalence of democratic notions this power of choice in the individual has, in many States, been given the widest scope, so that every officer, from the chief executive magistrate down to the lowest clerk of inferior boards, is elected by the popular vote. Now, there is in every community a large class of idle and vicious persons, whose chief aim in life is to live in luxury without labor. Those belonging to this class gravitate toward thickly settled localities, so that cities contain always proportionately more of them than country districts. They more readily combine, too, in cities, and, when combined for a political purpose, exert considerable power. This power they very naturally use to put some of their own number in official position. Such parties are chosen with the express understanding that they will use their offices, not for the benefit of the public, but for that of their associates. As these associates are numerous, without means, extrav-theless, acquire no prescriptive validity. Legislation, agant and clamorous, it becomes necessary for the friends whom they have elevated to obtain as great a revenue as possible from the place they hold. Their previous education has been such that their consciences are not over-sensitive as to right and wrong, so that the only thing that tends to restrain them from stealing the moneys of the people is the fear of punishment, and they are not unfrequently willing to risk something on that score. When such a class has tasted the sweets of official power, it is at once clamorous for a further share in public affairs, and threatens, unless its demands are complied with, to abandon its quondam friends and elevate others. To satisfy this clamor, it becomes necessary to find additional positions through which further drafts may be made upon the general treasury. As the applicants for place are, for the most part, incompetent to perform any duties requiring skill, sinecures are established, whose occupants receive a liberal salary for nominal services. Very soon these new officers are found insufficient, and the horde of vagabonds begin to intrude into places where knowledge and skill are necessary, hoping either to be able to perform the duties they assume by deputy, or, some how or other, to get rid of them altogether. When this vicious element has obtained control of any considerable share of the municipal government, it very rapidly demoralizes the whole, and soon dishonest practices, instead of being a disqualification for public confidence, becomes a recommendation therefor. however, has completely removed any doubt that might have existed on the point. It has been decided in England that the first wife of a Mormon is not on his death entitled to any share of his property. In other words, that a Mormon contract of marriage is null and void. But this rule is opposed to the maxim, omnia presumuntur, etc. Why may we not suppose that Mormons, as well as Jews, will be content with one wife each, until they give positive evidence of a contrary intention. Even when they give such proof by marrying again during the life of the first wife, why should this wrong of the husband alone divest any rights which the first wife obtained by her marriage. Even her consent to the second marriage is inoperative against a rule of law and public policy, especially, indeed, as being a married woman, she is incompetent to contract with her husband except in respect to property settled to her separate use. The American view of the rights of first Mormon wives is certainly more philosophic and gallant than the English idea, which implies that & Mormon cannot contract even one legal marriage. Although we desire exceedingly to see Mormondom reduced to obedience to the general law of the United States, yet it is to be remembered that Utah was Mexican soil when Brigham Young and his followers fled thither from Nauvoo, Ill. The Mormons have changed the country all around from a howling wilderness into a smiling garden. They fell under our dominion by the treaty of Hidalgo Gaudaloupe, and if they had a voice in the matter they would doubtless have preferred Mexican rule to that under which Joe Smith was lynched at Carthage after he had surrendered himself to Ford, the Missouri goverThere is no doubt that the Mormons have been But we need not follow this cause to its ultimate results. Perhaps these have never been reached in any American city, even New York. It has gone far enough there, however, to show what the results would be. Just now there seems to exist a deter-grievously persecuted by United States citizens, who mination on the part of honest citizens to so reform "drove the saints and spilled their blood" all through the municipal system of that city as to prevent a the via dolorosa of Iowa and adjoining States, until nor. A ed the Mormons reached Utah. Although, then, polygamy is criminal by our common and congressional laws, yet it is not contrary to the law of nature. Besides, it has been so long acquiesced in by our national government that we hope it will be repressed in the mildest manner possible, and that the unhappy Mormons will not be sent once more on their grand tour of the North American continent. Jews and Mahommedans may by the laws of their religions have more wives than one. Let us then give the Mormons "a reasonable time" before the federal legislation of 1862 and 1870 on the question of polygamy is enforced against the prophet. The executive clemency will be T very judiciously conferred upon the Mormon elder who has been already found guilty. We hope and believe that polygamy will soon become extinguished among us; yet, in our desire for this consummation, we do not wish to see the latter-day saints severely or unnecessarily punished for their peculiar views. 段 CURRENT TOPICS. The financial world has just been alarmed by a rumor that South Carolina bonds have been overissued in a quantity almost reaching infinity. The evil is also said not to be confined to South Carolina. The holder of an illegal bond is, of course, remediless against the State or alleged issuing body. But, where value has been given for a void bond, the consideration has failed, and the holder may be able to recover the value from the party from whom he has received the bond. The latter, however, alas, is usually a man of straw, so that the innocent holder for value fails in fact, if not in law, to recover any portion of the money or value given by him for the bonds. Where bonds or other securities are overissued by persons having limited issuing powers, the issuers are personally liable for having acted ultra vires. If the bonds are undistinguishable from those issued intra vires, then all are good against the State or civic corporation, as the case may be. The English newspapers have lately given much space to a discussion of the international copyright question. There is, to be sure, a great deal to be said upon both sides, and the advocates of the respective sides appear to have endeavored to say it. The whole trouble in the matter is this: If a book worth publishing appears in England, American publishers immediately reproduce it, and sell it at a rate far below what the original publisher can afford. The publisher on this side has two advantages: First, he has no royalty to pay, and, second, he knows whether the work will sell or not, from the reception it has met abroad. Of course the English publishers have the same chances as to American productions, but the balance of literary trade being at the present time in favor of Great Britain, the distribution of advantages is somewhat unequal. Then, again, there are more customers for books here than abroad; the difference being so great that in more than one instance publications which afforded no profit whatever to those who first issued them, have proved eminently successful in this country. It is said that the law advocated in England is wholly in the interest of publishers, and would be of no benefit to authors. If this be so it certainly will not be favored here. We are confident, however, that legislation, designed to accomplish all that copyright legislation ought ever to accomplish, namely, the protection of authors, will meet among our people very little opposition. There is one subject about which some understanding should be had between the different nations of the earth, and that is the subject of currency. To-day every country has its own peculiar kinds and divisions of money, which several kinds are to each other as the square is to the circle. Travelers and merchants experience great difficulty and considerable loss in transacting business by reason of variations in money. Attempts have been made from time to time to establish a coinage which should be current everywhere. Success in the matter has thus far been prevented partly by the opposition of dealers in money and partly by national prejudice. The latter opposing force is growing weaker every day; the other, of course, will always exist. Sooner or later, however, the need of a common currency will become so apparent that governments will be compelled to take some action in the matter. The abuse of the franking privilege has led to considerable legislation, but our national Solons have not as yet become bold and unselfish enough to apply the only efficient remedy, which is its total abolition. There may be satisfactory reasons existing why the free carriage of matter by mail should not be discontinued, but we have never met with them. Of course, the payment of postage would weigh somewhat heavily upon those who are now dead-heads, and we must expect the office holders, politicians and newspapers to oppose it. If our congressmen have not enough salary to enable them to afford postage stamps, give them a few hundred dollars more. politician can write fewer letters, and the country newspapers, which we believe to be, after all, the most vehement opponents of reform in this matter, must make their sheets enough better to induce their subscribers to pay the postage upon them. The The reason given by the governor of New York for the pardon of a person recently convicted of seduction under promise of marriage was, that the convicted individual was innocent. In almost every other offense the prisoner is tried by a jury, probably biased in his favor, but here, without exception, it is hostile to him. In most crimes the law forbids a compromise; in this it encourages one. The witnesses for the prosecution are almost uniformly interested in procuring a conviction, and actuated by vindictive feelings. Besides, the principal facts are usually established by the testimony of a single witness, who, by giving her testimony, publishes to the world the fact that her reputation should be bad. We are not in favor of an extensive exercise of the pardoning power, but, as long as prejudiced juries continue to convict innocent men, we trust it will be used without stint. A legal firm in one of our interior cities advertises its readiness to do business in a way that is somewhat peculiar. It issues monthly a pamphlet, which purports to contain all the judgments recovered, chattel mortgages filed and real estate mortgages recorded in the county where it does business. The pamphlet also contains " a list of accounts for sale on terms which will be made known at the office," to which list "the attention of such of our clients as give credit is called." The serial is, of course, strictly "confidential to clients only," and closes with the following very satisfactory reasons for the success of the system of doing business adopted by the firm in question: 1st. Because it collects at a lower percentage than any other. 2d. Because we have agents everywhere. 3d. Because delinquents do not like to have their names sent to our numerous clients. 4th. Because we collect promptly, and pay over moneys the same day we receive them. 5th. Because no expense is incurred, under any pretense, unless collections are made. We hope that the success of this system will not lead to its extensive adoption by the legal profession. The court of appeals re-assembled on the 13th inst. and resumed the calendar for 1871. All the judges are present except Judge Andrews, who is absent in Europe, health seeking. Four hundred and fifty appeals have been decided thus far since January last, and about two hundred and thirty remain upon the calendar. The court has ordered that the term for 1872 commence at the capitol, in the city of Albany, the third Tuesday of January next, and that a calendar of causes be made by the clerk, on which he will place only such appeals as shall be regularly noticed for argument at said term, and in which notes of issue shall be filed with him on or before the 31st day of December, 1871. The present session will close on the 23d of December. on We are afraid that we did the late justice of the fourth district - Mr. Rosekrans - an injustice in doubting that he had resigned for the purpose of defeating the accession of Mr. Potter, whom the people have elected. We trust he will forgive us, and we also trust that he may have some secret reason that may justify his own notions of honor and rectitude for his having pursued a course so extrao; dinary. We presume he will never undertake the very difficult task of attempting to justify his conduct in the eyes of his late brethren of the bench, or of the members of the bar. As will be observed by the governor's letter in another column, Mr. Jackson of Schenectady has been appointed to fill the vacancy, for the purpose of testing the constitutional question raised. This appointment may, on the whole, have been the wiser under the circumstances, but now that Mr. Potter has been honestly elected we desire to see him in the office. OBITER DICTA. How to give laws a binding force. If they are in pamphlet form send them to the bookbinder. A recent law book has a chapter entitled "Who may be an agent?" If an agent for a life insurance company is referred to, we should reply, "Almost anybody." Sheridan once said to Erskine: "Ah, Tom, had I stuck to the law I might have been what you are; but, hang it, Mrs. S. or myself was always obliged to write for our leg or shoulder of mutton." "Oh, yes," was the reply, "I always heard your literature was a joint concern." An anecdote is told in Northampton of Chief Justice Parsons' advice to Elijah H. Mills, upon his first appearance in court. An old lawyer in Hampshire county was prevented by illness from being present, and had given young Mills his papers, with the advice to employ some older counsel. "To whom will you refer me for assistance, your honor?" inquired the timid young barrister. The judge, quick at perceiving merit, replied, "To yourself, Brother Mills. I think you and I can do the business." Every thing went on well, with the help of a hint here and there, and, when the court adjourned, Mills called at the judge's chambers to thank him and say good-bye. As he entered, Mr. Serjeant, the leader of the Franklin bar, arose to depart. "I hope I shall see you next term, Mr. Serjeant," said the chief justice. "I am not sure about that, judge," replied the old lawyer; "I think some of sending my office-boy with my papers. You and he together will do the business full as well as I can." It is extraordinary what a strong, determined effort of the will can accomplish. The wonderful science (as it claims to be) of mesmerism is founded upon the power that a vigorous mind exerts on a weaker one. But still greater achievements appear possible to those who have unlimited confidence in the right to dispose of property by a last will and testament, "in testimony whereof," read the following: An "oracle" at New Orleans, discoursing on the wonders of the Mississippi, mentioned the iron coffin of De Soto, containing the golden trumpet given him by Queen Victoria. "What!" exclaimed one, "not Queen Victoria?" "Yes, sir, Queen Victoria." "Why she wasn't born then by two hundred years or more.' "I dont care if she wasn't," was the bold reply; "I reckon she could leave it in her will." |