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merce is thus a sort of Judge Lynch, who acts under
chart or compass
it is altogether difficult to forecast, color, or in furtherance of the objects of the law, or, as The experiment is a hazardous one, and should only it were, a vigilance committee, that sits in judgment be tentatively made upon a small scale. not only upon the litigants, but also upon the law The London practitioners have long viewed with itself. Rough and ready justice of this kind has its jealousy the growing greatness of the county courts. good qualities, no doubt. But what we wish to These tribunals have thus become, most undeservedly, observe is that it is not law.
a butt for attack by the cockneys. These gentry It disregards both precedent and statute, and the relate, with relish, the old story of the master of the rules of evidence. It is an arbitration upon moral rolls once having been requested by the usher of a and not legal merits. If the tribunal is sworn to county court to take a different seat from the one he administer justice according to law, and endeavors so occupied. "I am John Romilly,” said the future baron. to adjudicate according to the oath, wherein does it “I know it," said the usher, “but that seat is paid differ from a jury except that, in lessening the number for.” “Paid for,” exclaimed the future peer, rubbing of lay jurors and in placing this reduced number within his eyes to convince himself that he was wide-awake, the sphere of the bench's attraction, the lay element “Paid for," he repeated, “do you then sell justice is virtually eliminated altogether from the judicial sys here?” “No, sir,” blandly replied the usher, “but we tem. Nautical assessors, indeed, are often very con do places and the gentleman that owns that pew says venient to judges, because nautical art is so technical he comes here and not to the theater, as the county and seamanship is so much of a specialty that judges court is cheaper and more amusing."
at sea" upon many disputed points with respect The various calumnies which have been circulated to porting helm, etc., that may not be provided for respecting the county courts, however, have only by the authorized sailing rules. But, in all ordinary rooted them the deeper in the public estimation; and cases of contracts and torts there is no doubt that one the result is that, instead of calling for legal concenor two lay assessors would be swamped and merged | tration, England is demanding that the courts be still by their legal brethren unless rules of law were further decentralized. The cry for courts of comignored. These rules, indeed, are certain to be despised merce is a phase of this passion for lay, or unby the lay judge, and, therefore, the practical result technical justice. Whether the rustic dictator will give of establishing these mixed courts is to turn every as much satisfaction as his predecessor, however, question before them into one for moral arbitration. remains to be seen.
All technicality in the law would have been long With the following limitations courts of commerce since abolished if the construction of written docu may do much social good and little legal harm: First, ments were left to the jury. But, with this conces resort to them ought to be optional, and not compulsion to common sense, what becomes of common law ? sory. Every one knows that arbitration is not the Precedent becomes obsolete and useless, and even cheap thing it affects to be. Suitors, therefore, ought statute law would be so uncertain in its operation as not to be forced to consult a deaf and dumb, and yet, to render it doubtful whether it is worth while to pass withal, an exacting and rapacious oracle. If recourse any statutes at all, since a jury may write its own to the mixed tribunals was thus rendered optional, no draft across any legislative provision, no matter how great harm could be done until their real operation carefully prepared. As juries are at present subject was ascertained. In the next place, their jurisdiction to the rules of law, and yet are perfect masters of the should be confined to reasonable amounts. Thirdly, verdict as regards facts, the respective provinces of the no appeal should be permitted from the tribunals, lay and the professional members of the judicature are except where mercantile partiality could be proved to distinctly defined. This tends to keep the legal pro have influenced the judgment. Fourthly, the memfession a specialty, and to impart certainty to all con bers should be sworn to decide according to law, so tracts and deeds approved of by eminent counsel. far as their abilities enabled them to do so. Fifthly, But, if every thing on every trial is left to the jury, the legal members of the court should exclusively no one could feel certain that his title to his property determine all questions with respect to the admissiwas worth an hour's purchase. Juries, it may be bility of evidence. The construction of a document suggested, never act with the gross disregard of jus- of a mercantile nature, or, indeed, of any kind, might tice here referred to; but be it remembered that juries be left, as a question of fact, to the whole court. at present know and feel that they are coerced by With these qualifications no harm could result from rules of law, both as regards the admissibility of evi the establishment of mixed tribunals. These courts, dence, the construction of written documents, and, certainly, would have the negative advantage of not in some cases, even as to the quantum of damages. | burdening us with any reports of their decisions Their elevation, like that of the kite, is owing to the except what would appear in the daily journals. At fetters that check their career, both upward and least, very few reporters would take to compiling, for downward. What juries would be if they were left professional guidance, a heterogeneous mass of awards to grope their way over a chaotic sea of law and fact, which most probably would, despite of any oath or unaided by the light of precedent or legal rule - intentions of the judges to the contrary, be devoid of
all legal principle or significance. The chief point is fore, is that this is one of the volumes which that disto have the jurisdiction limited. Else the right of tinguished judge resorted to rather to enrich his juridappeal could not be taken away consistently with ical store of learning, than to find technical points upon any regard to law and social order.
Courts of com which he might decide family difficulties, or the relainerce are not likely to become popular in the State tive rights and duties of the sexes in carrying on the of New York for some time. Our judiciary is already business of life. Whatever moral therefore may be too lay and too much in contact with the popular drawn from his life will apply just as well when the and political element. Jural reform with us should millenium of their political equality shall have been aim in rendering the bench more special and expert reached, as it does in the transition state in which the than it is at present, no matter how England may act world finds itself at the present day. Judge Buller in the matter. Indeed, this rush of the commons was of a Cornish family and was born in 1746. He committee into the arms of amateur judges is probably entered the Inner Temple at the age of 17, as a pupil owing rather to a desire to give an installment of of Mr., afterward justice, Ashhurst. That he was a some kind of law reform in lieu of the high courts bold as well as precocious young man, compared with of justice, than to a due consideration of the neces the law students of our day, may be inferred from sarily limited functions of all lay or mixed tribunals. various incidents in his early life. One of these is The worst mode of reforming the law or procedure, his having taken to himself a help-meet in the form however, is to enlarge the sphere of judicial discre of a wife at the age of seventeen, and at nineteen he tion, especially when ignorance of the law is to be began to practice as a special pleader, and two years no disqualification for a seat on the bench.
afterward he published his work on nisi prius which ran through six editions in his life-time, and still finde
a place in many of the libraries of American as well OUR BOOKS,
as English lawyers. The book, however, was not originally written or collated by him, but was made
up of materials furnished him by his uncle, Judge BathWe took down from the shelf above that from urst, afterward Lord Apsley, who for a few years which we had taken Carter's Reports, which were held the seals as chancellor of England. He was spoken of in our last, a small octavo volume which not called to the bar till 1772, when he was twentywe found lettered upon its back: “Wood's Imperial six years old, at which time his uncle Bathurst was Law," and upon opening it we read upon the fly leaf, lord chancellor, and, though a weak man himseli, "F. Buller Inner Temple 1768," written in a small, was able to render him essential aid in coming into clear, distinct hand. Its title page reads,
practice. He found a powerful auxiliary, also, in Institute of the Imperial or Civil Law with notes.” Lord Mansfield, who from the first held him in high -“The third edition corrected ”—“London &c. esteem as an able and profound lawyer. The conse1721.” And as we contemplated the volume before quence was, he entered at once upon an extensive us, we not only found ourselves in communication practice. At the age of thirty-two, in 1778, he was with the English judge who was worthy of a seat by appointed to the king's bench in place of Judge the side of Mansfield on the king's bench, but, until we Aston, and proved himself a most able associate of inquired further into the matter, imagined we had Lord Mansfield who had then held the office of chief found upon what authority he had made that famous justice, with signal ability, for twenty-two years. ruling which led the good wives of England to The satisfaction which the new judge derived from inquire so anxiously the size and thickness of his his new office may be illustrated by an expression thumb, for on the forty-fifth page, it is said, when speak- which he is said to have indulged in, that “his idea ing of the authority of a husband over his wife, “he of heaven was to sit at nisi prius all day, and play at may give her moderate correction.” Tradition, it will whist all night.” We think, however, his notion in be recollected, gave Mr. Justice Buller not only credit this respect must have been somewhat modified when for enunciating this doctrine, but for going further he encountered Erskine in the trial of the dean of and defining the kind of stick with which it might St. Asaph, in which the advocate was ultimately vicbe done, which he fixed at the size of his thumb. torious over the judge, as we shall have occasion to Fortunately for the fame of the judge, and fortunately remark when we come to that event in his life. For for us, in these days of woman's rights, while speak- | the last few years of his holding office Lord Mansing of our redecessors in the ownership of this little field was unable to perform its duties, and the same, volume, tradition in this case, as in so many others, practically, devolved upon Judge Buller whom the chief has been a most arrant knave, since there is nothing justice was very desirous of making his successor. in his judicial career which would stand between him But Pitt was inexorably opposed to this arrangement, and Mrs. Woodhull herself in the way of champion- and when, in 1788, Mansfield did resign, Sir Lloyd ship for female suffrage, if he were to come back Kenyon became his successor. Lord Campbell in on to the stage of action which he left somewhat remarking upon this change says, to cover his (Bulmore than seventy years ago. Our conclusion, there- I ler's) mortification on the appointment of Lord Ken
yon, he soon left the court of king's bench and hid the subject, and we look forward to the time when himself in the common pleas.” We believe, however, that noble system of jurisprudence shall be embraced that it was six years before he made the change, and in the curriculum of every liberal-minded American after serving another six years in the common pleas, student at law. he died in 1800 at the age of fisty-four. Of the part he took in the trial of the dean of St. Asaph, there
DISABILITIES OF AMERICAN WOMEN MARought to be something more than a passing remark.
RIED ABROAD. The charge was for publishing a seditious libel. Buller presided at the trial, and Erskine made one of his
The numerous differences that exist between the ablest efforts in defense. The jury returned a ver
laws of realty and those of personalty are constant dict of "guilty of publishing only.” That led to a
sources of difficulty to the practitioner, the jurist, and remarkable scene in court, in a struggle between the
the statesman. Those per plexities entangle even interjudge and the counsel to wrest from the jury pre
national questions, and whether the point be one of cisely what they meant by this, Erskine insisting it marriage, domicile, will or contract, the lex loci rei negatived all the essential allegations in the indict
site will be found to greatly modify the consequences ment which made the thing published a libel, the
that otherwise would attach to a contract of marriage judge extorting from them, at last, that they thereby
or of any other description. Above all, legislatures meant to find that the defendant published what was
have viewed with extreme jealousy the holding of set forth, but they did not mean to find whether it
land by an alien. The sending of rent to an absentee, was a libel or not. This, in the opinion of the judge,
who spends it out of the country which contributes gave the court a right to pronounce the publication, it, is, doubtless, a source of much injury to the nation thus proved, a libel, as a matter of law. And such
that is thus deprived of the streams of wealth that undoubtedly had been held to be the law up to that
otherwise would flow back again among them. The time. Erskine, however, moved for a new trial for
laws against the inheriting of land by aliens, however, misdirection of the judge, and this was argued by
have been devised, not through politico-economic him with unsurpassed ability before the king's bench. motives, but through strictly political ones. It is But his motion was overruled by the court, and Chief hardly necessary to say that the quantity of the land Justice Mansfield gave a very elaborate opinion, in
of a nation that is in the hands of aliens can never which he is charged with misquoting from a ballad
be considerable, and that the inconveniences and by Mr. Pultney, wherein the writer is made to say
anomalies to which the exclusion gives rise greatly for twelve honest men have decided the cause,
overbalance any political advantages that are supwho are judges of fact, tho' not judges of laws,” posed to result from indirect legislation against abwhen, in fact, the last line of the original was:
sentees and aliens. Females, in an especial manner, are judges alike of the facts and the laws." The judg are injuriously affected by every rule of law, whether ment, at last, was arrested on another ground, and common or international, that had its origin in the this was soon followed by Mr. Fox's bill which effec feudal system and military tenures. tually negatived the doctrine of libel for which the
Even the rules of the English court of chancery court had so stoutly contended, and left Erskine and allowed curtesy, but not dower, of a trust estate. those who went with him masters of the field. But
This distinction, surely, was very inequitable and unin following out a sketch of the former owner's life, worthy of a chivalrous and gallant nation. Had we have scarcely noticed the work itself which Sir there been female chancellors, they would certainly Francis, doubtless, read while a student in the Inner have established equality before the law, in respect to Temple, as his signature is dated four years prior to
this incident of the matrimonial state. A defect of his being called to the bar. This augurs favorably this kind, however, is more pardonable in an old nafor those broad and liberal views with which he tion of Europe than it is in the free States of America. entered upon the study of a science in which the Yet, by the laws of New York, female citizens of the civil law had been previously pretty much tabooed. United States, contracting foreign marriages, incur a The author of the work before us was rector of disinherison of their offspring; while no such conseHardwich, and we can scarcely recall a single work quences are attached to the marriage of a male citizen upon the civil law, of any considerable magnitude, under similar circumstances. Where, by the recent which had then been produced in England, which treaties of naturalization, the nationality of a married had for its author one who had been educated to the woman becomes that of her husband, this operates as common law. Taylor, rector of Lawford, had pub a forfeiture of her right to succeed to the real estato lished his elements of the civil law in quarto in 1755, of her relatives. Even if she herself is “capable of and the Rev. Dr. Ellis' summary had been publish-taking real estate by descent or devise, her issue, if ed the same year. But, fortunately for the English their father is a citizen or subject of any foreign and American bar, the prejudices so long cherished country, whether the United States have or have not against the Roman code have been giving way before a naturalization treaty with it, cannot succeed to the the march of intelligence and a better knowledge of mother's real estate in the State of New York, even
though she may have inherited it from her own required by the law of that country to claim the ancestors.” *
quality of a Frenchwoman (Code Civil, art. 9), but Mr. William Beach Lawrence, from whom we have who had acquired, by marriage with a Frenchman, made this quotation, has just published a little brochure the condition of her husband (id. art. 12), did not, on these grievances of our female citizens. He points when a widow and continuing to reside in France, out a very easy road to their removal. Indeed, the become re-invested with the quality of a citizen of same difficulty occurred in England, and was provided the United States. Opinions of the Attorney-Genefor by the 7th and 8th Vict. ch. 66, 1844. By the stat- rals, vol. 12, p. 17. The reader may here remember ute every person born of a British mother, though he is the case of the parish settlement referred to in the not himself made a British subject, is rendered capa lines ble of taking real or personal property by descent,
A woman, who had a settlement,
Married a man who had none: will, or grant inter vivos. Clause section 660 of the civil code of New York meets the difficulties we are
The question was, he being dead,
If the settlement were gone. referring to, and, if the civil code has been adopted by the legislature, this would render any further change
Quoth Sir John Pratt, “The settlement
Suspended doth remain, in the law on the point in question unnecessary.
Living the husband; but, him dead, as the code is still in gremio legis, some positive legis
It doth revive again.” lation seems necessary to restore our female citizens to rights which it certainly never was the intention of
International rules, however, are sometimes more
strictly construed than even the provisions of the any treaty to take
away. The intention of the framers of a statute, however,
Oliver Twist code. While the States have no right or a treaty thereunder, is often of little consequence.
to define or regulate general political status, the fede
ral authority, on the other hand, has no right to conThe question for the courts when construing a statute
trol the descent or devolution of land within the States. is, not what the legislature thought, but what it said. The nature of the evil legislated against, no doubt,
There is, therefore, some reason to contend that no often controls the meaning of the general terms in change in the law has been effected by the expatriawhich the remedy is provided. But, in the present
tion statute, or other action of congress under it. The case, the ground for such a contention has been greatly certainly never intended to affect the transmission of
treaty-making power of the general government was diminished by judicial decisions. See Jackson v. Fitzsimmons, 10 Wend. 11; Jackson v. Green, 7 id. 339; property within the States. This question has been Collingwood v. Pace, 1 Ventris, 413; Co. Litt, 8
raised before the supreme court of the United States,
but that tribunal has always been unwilling to deterSee, also, McCarty v. Marsh, 5 N. Y. (1 Seld.) 266;
mine the point. Frederickson v. The State of Louisiana, McLean v. Tenanton, 3 id. 535. As State laws have no control over the political status of its inhabitants
23 How. 445; The People v. Gerke, 5 Cal. 381. Any
interference with the descent of land is most probably (Lynch v. Clark, 1 Sandf. Ch. 583), it is the more difficult to determine, at a given time, in any particular unconstitutional, when it is the result of the action of State, whether a person is an alien or a citizen. The
the federal government. However, it is better for
the New York legislature to settle the present quesquestion is still further complicated by the fact that
tion by a short statute such as Mr. Lawrence recomthe expatriation act of congress and the naturalization conventions permit a person to change his nationality mends, rather than to relegate its uneasy female citizens as often as he pleases. These and other points con
to costly litigation before the supreme court of the
United States. nected with the question we are considering are placed
This matter is well worthy the
immediate attention of Governor Hoffman. by Mr. Lawrence in a clear light, and met by the remedy we have mentioned, and which has already been successfully adopted in England. By existing laws of the United States, the children
CONSTRUCTION OF WILLS. of an American male citizen born abroad are, irre
No. II. spective of the nationality of the mother, American citizens, and, consequently, are competent to hold and transmit real estate within the State of New York.
Sir James Wigram was tainted witn the not unStat. 10th Feb., 1855; 10 U. S. Stat. at L., 604.
common impression that where a writing is renBut it was held by Attorney-General Stanbury,
dered necessary by statute, the exclusion of extrinsic before the commentaries in question, that a woman
evidence is more rigorously insisted on than where a
This whose father was an American citizen, and who,
document is required by the common law. though born in France, had not taken the measures
somewhat prevalent notion is sanctioned by several
dicta in the reports. See Norton v. Simmes, Hobart, * Foreign treaties of the United States in conflict | 14; Newman v. Newman, 4 M. & Sel. 66; Goss v. Van with State laws relating to the transmission of real estate to aliens, by William Beach Lawrence, New
Nugent, 5 B. & Ad. 58. There is no real foundation, York. Baker, Voorhis & Co., 1871, p. 8.
however, for the distinction in question. It is not
hard to discover the origin of the error - for such it may be precluded if the testator has shown, by the is, although an abstract one and not leading to any use of the same word in other parts of the will, that practical inconvenience. Wills are, like articles, so he did not intend to use the term in question in the far of an executory nature that the courts will, if trading sense, but with a peculiar meaning of his own. possible, render every clause operative. Such instru Richardson v. Watson, 4 B. & Ad. 799; 1 Nev. & Mann, ments, accordingly, are more benignly interpreted | 575. The court "put themselves in the place of the than other documents. The result has been that an testator, and then see how the terms of the will affect indirect consequence of general testamentary exposi- | the property,” per Parke, J., in Doe & Templeman v. tion has been hastily applied to all transactions which Martin, 1 Nev. & Mann. 524. The testator's own are required by statute to be evidenced by writing idea, as expressed in other parts of the will, are, of When, however, the court has transposed the clauses
course, the best evidence of his condition of mind, in a will — which it can do with greater ease than and of the meaning he attached to the terms employed where the document in question is inter vivos — the by him, But when we fail to receive any such light manuscript in the one case is subject exactly to the from the context, the custom of the country or of same rules of extrinsic evidence, though not of inter persons of the same profession as the testator is as pretation, as in the other. Sir James Wigram, there much admissible as if the manuscript here are inter fore, ought to have treated of the admissibility of vivos ; and, conversely, a written contract is open to extrinsic evidence generally, to help in the explana- all extrinsic evidence that may be adduced to intertion of a written document. His composing a treat- | pret a will, ise on the rules regulating the admissibility of extrin We repeat that, as regards extrinsic verbal evisic evidence, as regards the interpretation of wills, dence, wills and other documents are on all fours, implies that these rules differ in some respects from although, of course, wills and articles will often receive the rules respecting the admissibility of parol evi an interpretation not allowable if the same sentences dence, where the document in question is inter vivos. were contained in a deed. In fact, executory instruExpressio unis est exclusio alterius. A treatise on the ments, such as marriage articles, are actually more vision and optic nerves of the Chinese would imply flexible than wills, as regards the rule in Shelley's Case, that optics differed in China from our own experience and the depriving of technical words of their strict, of the laws of light. An account of the operations | legal significance. Wills, therefore, instead of being of the thermometer as ascertained in the island of Malta, exclusively subject to certain peculiar rules for the would denote that the instrument in question worked furtherance of a testator's intention, are less liberally by different laws elsewhere. A treatise on contingent construed than certain classes of documents inter remainders indicates that they differ, in certain legal vivos, viz.: marriage articles. This, indeed, is a point incidents, from vested remainders. And so a treatise of intrinsic, not extrinsic, evidence; but it shows
“the admission of extrinsic evidence in, and of that wills are not alone in the favor they receive from the interpretation of, wills,” amounts to an assertion the courts, since executory instruments are still more that wills differ from documents, inter vivos, with liberally and less technically construed. Wills, then, respect to the admission of such evidence to aid the are mid-way between instruments executed and court in construing the manuscript. This impression executory, as regards the power of the courts. They is erroneous. All written documents, whether re are more liberally construed, as regards their intrinsic quired by common law or statute, and whether testa- evidences, than the former class of instruments, and mentary or inter vivos, are amenable to the same rules less liberally than the latter. But as regards the adof extrinsic evidence, however widely their inter- | missibility of extrinsic verbal evidence, wills, executed pretation or extrinsic evidence may be expounded by and executory instruments stand exactly on the same the court. The practitioner, therefore, when adduc- footing, nor is there a single rule respecting the ing parol evidence to aid in the interpretation of a admissibility of parol peculiar to any of these three will, will do well to often look outside of treatises or classes of manuscripts; but all are alike amenable to testaments only, and to see what writers on deeds the same rules of extrinsic verbal evidence, though and unsealed documents say on the question. Any not of construction. case decided with respect to instruments of the latter Sir James Wigram's opinion on this point is, howspecies is equally relevant to a similar question arising ever, confirmed, to a certain extent, by a matter that under a will, provided the extrinsic evidence is not a he does not appear to have at all contemplated. Wills writing which, in the particular case, should have been of real estate when he wrote, and all English wills executed as a will. But all verbal extrinsic evidence since 1 Vict. ch. 26, require to be subscribed by the stands on the same footing, in relation to documents, names of witnesses. It is obvious, therefore, that and it is immaterial whether these are testamentary
an unattested document can be given in evidence to or inter vivos.
explain another writing, but is unavailing as regards Accordingly, evidence of a custom of trade may be a will, except to the extent to which mere verbal eviadduced to show the sense in which a term of trade dence can be adduced on the point in question. A was used by the testator. This evidence, of course, statute that requires attestation as well as a writing,