merce is thus a sort of Judge Lynch, who acts under color, or in furtherance of the objects of the law, or, as it were, a vigilance committee, that sits in judgment not only upon the litigants, but also upon the law itself. Rough and ready justice of this kind has its good qualities, no doubt. But what we wish to observe is that it is not law.

It disregards both precedent and statute, and the rules of evidence. It is an arbitration upon moral and not legal merits. If the tribunal is sworn to administer justice according to law, and endeavors so to adjudicate according to the oath, wherein does it. differ from a jury except that, in lessening the number of lay jurors and in placing this reduced number within the sphere of the bench's attraction, the lay element is virtually eliminated altogether from the judicial system. Nautical assessors, indeed, are often very convenient to judges, because nautical art is so technical and seamanship is so much of a specialty that judges are at sea" upon many disputed points with respect to porting helm, etc., that may not be provided for by the authorized sailing rules. But, in all ordinary cases of contracts and torts there is no doubt that one or two lay assessors would be swamped and merged by their legal brethren unless rules of law were ignored. These rules, indeed, are certain to be despised by the lay judge, and, therefore, the practical result of establishing these mixed courts is to turn every question before them into one for moral arbitration.

All technicality in the law would have been long since abolished if the construction of written documents were left to the jury. But, with this concession to common sense, what becomes of common law? Precedent becomes obsolete and useless. and even statute law would be so uncertain in its operation as to render it doubtful whether it is worth while to pass any statutes at all, since a jury may write its own draft across any legislative provision, no matter how carefully prepared. As juries are at present subject to the rules of law, and yet are perfect masters of the verdict as regards facts, the respective provinces of the lay and the professional members of the judicature are distinctly defined. This tends to keep the legal profession a specialty, and to impart certainty to all contracts and deeds approved of by eminent counsel. But, if every thing on every trial is left to the jury, no one could feel certain that his title to his property was worth an hour's purchase. Juries, it may be suggested, never act with the gross disregard of justice here referred to; but be it remembered that juries at present know and feel that they are coerced by rules of law, both as regards the admissibility of evidence, the construction of written documents, and, in some cases, even as to the quantum of damages. Their elevation, like that of the kite, is owing to the fetters that check their career, both upward and downward. What juries would be if they were left to grope their way over a chaotic sea of law and fact, unaided by the light of precedent or legal rule

chart or compass- it is altogether difficult to forecast. The experiment is a hazardous one, and should only be tentatively made upon a small scale.

The London practitioners have long viewed with jealousy the growing greatness of the county courts. These tribunals have thus become, most undeservedly, a butt for attack by the .cockneys. These gentry relate, with relish, the old story of the master of the rolls once having been requested by the usher of a county court to take a different seat from the one he occupied. "I am John Romilly," said the future baron. "I know it," said the usher, "but that seat is paid for." "Paid for," exclaimed the future peer, rubbing his eyes to convince himself that he was wide-awake, "Paid for," he repeated, "do you then sell justice here?" "No, sir," blandly replied the usher, "but we do places and the gentleman that owns that pew says he comes here and not to the theater, as the county court is cheaper and more amusing."

The various calumnies which have been circulated respecting the county courts, however, have only rooted them the deeper in the public estimation; and the result is that, instead of calling for legal concentration, England is demanding that the courts be still further decentralized. The cry for courts of commerce is a phase of this passion for lay, or untechnical justice. Whether the rustic dictator will give as much satisfaction as his predecessor, however, remains to be seen.

With the following limitations courts of commerce may do much social good and little legal harm: First, resort to them ought to be optional, and not compulsory. Every one knows that arbitration is not the cheap thing it affects to be. Suitors, therefore, ought not to be forced to consult a deaf and dumb, and yet, withal, an exacting and rapacious oracle. If recourse to the mixed tribunals was thus rendered optional, no great harm could be done until their real operation was ascertained. In the next place, their jurisdiction should be confined to reasonable amounts. Thirdly, no appeal should be permitted from the tribunals, except where mercantile partiality could be proved to have influenced the judgment. Fourthly, the members should be sworn to decide according to law, so far as their abilities enabled them to do so. Fifthly, the legal members of the court should exclusively determine all questions with respect to the admissibility of evidence. The construction of a document of a mercantile nature, or, indeed, of any kind, might be left, as a question of fact, to the whole court.

With these qualifications no harm could result from the establishment of mixed tribunals. These courts, certainly, would have the negative advantage of not burdening us with any reports of their decisions except what would appear in the daily journals. At least, very few reporters would take to compiling, for professional guidance, a heterogeneous mass of awards which most probably would, despite of any oath or intentions of the judges to the contrary, be devoid of

all legal principle or significance. The chief point is to have the jurisdiction limited. Else the right of appeal could not be taken away consistently with any regard to law and social order. Courts of commerce are not likely to become popular in the State of New York for some time. Our judiciary is already too lay and too much in contact with the popular and political element. Jural reform with us should aim in rendering the bench more special and expert than it is at present, no matter how England may act in the matter. Indeed, this rush of the commons committee into the arms of amateur judges is probably owing rather to a desire to give an installment of some kind of law reform in lieu of the high courts of justice, than to a due consideration of the necessarily limited functions of all lay or mixed tribunals. The worst mode of reforming the law or procedure, however, is to enlarge the sphere of judicial discretion, especially when ignorance of the law is to be no disqualification for a seat on the bench.

OUR BOOKS.

II.

fore, is that this is one of the volumes which that distinguished judge resorted to rather to enrich his juridical store of learning, than to find technical points upon which he might decide family difficulties, or the relative rights and duties of the sexes in carrying on the business of life. Whatever moral therefore may be drawn from his life will apply just as well when the millenium of their political equality shall have been reached, as it does in the transition state in which the world finds itself at the present day. Judge Buller was of a Cornish family and was born in 1746. He entered the Inner Temple at the age of 17, as a pupil of Mr., afterward justice, Ashhurst. That he was a bold as well as precocious young man, compared with the law students of our day, may be inferred from various incidents in his early life. One of these is his having taken to himself a help-meet in the form of a wife at the age of seventeen, and at nineteen he began to practice as a special pleader, and two years afterward he published his work on nisi prius which ran through six editions in his life-time, and still finds a place in many of the libraries of American as well 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 Bathurst, afterward Lord Apsley, who for a few years held the seals as chancellor of England. He was not called to the bar till 1772, when he was twentysix years old, at which time his uncle Bathurst was lord chancellor, and, though a weak man himself, was able to render him essential aid in coming into practice. He found a powerful auxiliary, also, in Lord Mansfield, who from the first held him in high esteem as an able and profound lawyer. The consequence was, he entered at once upon an extensive practice. At the age of thirty-two, in 1778, he was appointed to the king's bench in place of Judge Aston, and proved himself a most able associate of Lord Mansfield who had then held the office of chief justice, with signal ability, for twenty-two years. The satisfaction which the new judge derived from his new office may be illustrated by an expression which he is said to have indulged in, that "his idea of heaven was to sit at nisi prius all day, and play at whist all night." We think, however, his notion in this respect must have been somewhat modified when he encountered Erskine in the trial of the dean of | St. Asaph, in which the advocate was ultimately victorious over the judge, as we shall have occasion to remark when we come to that event in his life. For the last few years of his holding office Lord Mansfield was unable to perform its duties, and the same, practically, devolved upon Judge Buller whom the chief justice was very desirous of making his successor. But Pitt was inexorably opposed to this arrangement, and when, in 1788, Mansfield did resign, Sir Lloyd Kenyon became his successor. Lord Campbell in remarking upon this change says, "to cover his (Buller's) mortification on the appointment of Lord Ken

We took down from the shelf above that from which we had taken Carter's Reports, which were spoken of in our last, a small octavo volume which we found lettered upon its back: "Wood's Imperial Law," and upon opening it we read upon the fly leaf, "F. Buller Inner Temple 1768," written in a small, clear, distinct hand. Its title page reads, "A new Institute of the Imperial or Civil Law with notes." "The third edition corrected "London &c. 1721." And as we contemplated the volume before us, we not only found ourselves in communication with the English judge who was worthy of a seat by the side of Mansfield on the king's bench, but, until we inquired further into the matter, imagined we had found upon what authority he had made that famous ruling which led the good wives of England to inquire so anxiously the size and thickness of his thumb, for on the forty-fifth page, it is said, when speaking of the authority of a husband over his wife, "he may give her moderate correction." Tradition, it will be recollected, gave Mr. Justice Buller not only credit for enunciating this doctrine, but for going further and defining the kind of stick with which it might be done, which he fixed at the size of his thumb. Fortunately for the fame of the judge, and fortunately for us, in these days of woman's rights, while speaking of our predecessors in the ownership of this little volume, tradition in this case, as in so many others, has been a most arrant knave, since there is nothing in his judicial career which would stand between him and Mrs. Woodhull herself in the way of championship for female suffrage, if he were to come back on to the stage of action which he left somewhat more than seventy years ago. Our conclusion, there

yon, he soon left the court of king's bench and hid himself in the common pleas." We believe, however, that it was six years before he made the change, and after serving another six years in the common pleas, he died in 1800 at the age of fifty-four. Of the part he took in the trial of the dean of St. Asaph, there ought to be something more than a passing remark. The charge was for publishing a seditious libel. Buller presided at the trial, and Erskine made one of his ablest efforts in defense. The jury returned a verdict of "guilty of publishing only." That led to a remarkable scene in court, in a struggle between the judge and the counsel to wrest from the jury precisely what they meant by this, Erskine insisting it negatived all the essential allegations in the indictment which made the thing published a libel, the judge extorting from them, at last, that they thereby meant to find that the defendant published what was set forth, but they did not mean to find whether it was a libel or not. This, in the opinion of the judge, gave the court a right to pronounce the publication, thus proved, a libel, as a matter of law. And such undoubtedly had been held to be the law up to that time. Erskine, however, moved for a new trial for misdirection of the judge, and this was argued by him with unsurpassed ability before the king's bench. But his motion was overruled by the court, and Chief Justice Mansfield gave a very elaborate opinion, in which he is charged with misquoting from a ballad by Mr. Pultney, wherein the writer is made to say for twelve honest men have decided the cause, who are judges of fact, tho' not judges of laws," when, in fact, the last line of the original was: "who are judges alike of the facts and the laws." The judgment, at last, was arrested on another ground, and this was soon followed by Mr. Fox's bill which effectually negatived the doctrine of libel for which the court had so stoutly contended, and left Erskine and those who went with him masters of the field. But in following out a sketch of the former owner's life, we have scarcely noticed the work itself which Sir Francis, doubtless, read while a student in the Inner Temple, as his signature is dated four years prior to his being called to the bar. This augurs favorably for those broad and liberal views with which he entered upon the study of a science in which the civil law had been previously pretty much tabooed. The author of the work before us was rector of Hardwich, and we can scarcely recall a single work upon the civil law, of any considerable magnitude, which had then been produced in England, which had for its author one who had been educated to the common law. Taylor, rector of Lawford, had published his elements of the civil law in quarto in 1755, and the Rev. Dr. Ellis' summary had been published the same year. But, fortunately for the English and American bar, the prejudices so long cherished against the Roman code have been giving way before the march of intelligence and a better knowledge of

the subject, and we look forward to the time when that noble system of jurisprudence shall be embraced in the curriculum of every liberal-minded American student at law.

DISABILITIES OF AMERICAN WOMEN MARRIED ABROAD.

The numerous differences that exist between the laws of realty and those of personalty are constant sources of difficulty to the practitioner, the jurist, and the statesman. Those perplexities entangle even international questions, and whether the point be one of marriage, domicile, will or contract, the lex loci rei site will be found to greatly modify the consequences that otherwise would attach to a contract of marriage or of any other description. Above all, legislatures have viewed with extreme jealousy the holding of land by an alien. The sending of rent to an absentee, who spends it out of the country which contributes it, is, doubtless, a source of much injury to the nation that is thus deprived of the streams of wealth that otherwise would flow back again among them. The laws against the inheriting of land by aliens, however, have been devised, not through politico-economic motives, but through strictly political ones. hardly necessary to say that the quantity of the land of a nation that is in the hands of aliens can never be considerable, and that the inconveniences and anomalies to which the exclusion gives rise greatly overbalance any political advantages that are supposed to result from indirect legislation against absentees and aliens. Females, in an especial manner, are injuriously affected by every rule of law, whether common or international, that had its origin in the feudal system and military tenures.

It is

Mr. William Beach Lawrence, from whom we have made this quotation, has just published a little brochure on these grievances of our female citizens. He points out a very easy road to their removal. Indeed, the same difficulty occurred in England, and was provided for by the 7th and 8th Vict. ch. 66, 1844. By the statute every person born of a British mother, though he is not himself made a British subject, is rendered capable of taking real or personal property by descent, will, or grant inter vivos. Clause section 660 of the civil code of New York meets the difficulties we are referring to, and, if the civil code has been adopted by the legislature, this would render any further change in the law on the point in question unnecessary. But as the code is still in gremio legis, some positive legislation seems necessary to restore our female citizens to rights which it certainly never was the intention of any treaty to take away.

The intention of the framers of a statute, however, or a treaty thereunder, is often of little consequence. The question for the courts when construing a statute is, not what the legislature thought, but what it said. The nature of the evil legislated against, no doubt, often controls the meaning of the general terms in which the remedy is provided. But, in the present case, the ground for such a contention has been greatly diminished by judicial decisions. See Jackson v. Fitzsimmons, 10 Wend. 11; Jackson v. Green, 7 id. 339; Collingwood v. Pace, 1 Ventris, 413; Co. Litt, 8 a.; See, also, McCarty v. Marsh, 5 N. Y. (1 Seld.) 266; McLean v. Tenanton, 3 id. 535. As State laws have no control over the political status of its inhabitants (Lynch v. Clark, 1 Sandf. Ch. 583), it is the more difficult to determine, at a given time, in any particular State, whether a person is an alien or a citizen. The question is still further complicated by the fact that the expatriation act of congress and the naturalization conventions permit a person to change his nationality as often as he pleases. These and other points connected with the question we are considering are placed 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 of an American male citizen born abroad are, irrespective of the nationality of the mother, American citizens, and, consequently, are competent to hold and transmit real estate within the State of New York. Stat. 10th Feb., 1855; 10 U. S. Stat. at L., 604. But it was held by Attorney-General Stanbury, before the commentaries in question, that a woman whose father was an American citizen, and who, though born in France, had not taken the measures

*Foreign treaties of the United States in conflict with State laws relating to the transmission of real estate to aliens, by William Beach Lawrence, New York. Baker, Voorhis & Co., 1871, p. 8.

required by the law of that country to claim the quality of a Frenchwoman (Code Civil, art. 9), but who had acquired, by marriage with a Frenchman, the condition of her husband (id. art. 12), did not, when a widow and continuing to reside in France, become re-invested with the quality of a citizen of the United States. Opinions of the Attorney-Generals, vol. 12, p. 17. The reader may here remember the case of the parish settlement referred to in the | lines

A woman, who had a settlement,
Married a man who had none:
The question was, he being dead,
If the settlement were gone.

Quoth Sir John Pratt, "The settlement
Suspended doth remain,

Living the husband; but, him dead,
It doth revive again."

International rules, however, are sometimes more strictly construed than even the provisions of the Oliver Twist code. While the States have no right to define or regulate general political status, the federal authority, on the other hand, has no right to control the descent or devolution of land within the States.

There is, therefore, some reason to contend that nó change in the law has been effected by the expatria

tion statute, or other action of congress under it. The

treaty-making power of the general government was certainly never intended to affect the transmission of property within the States. This question has been raised before the supreme court of the United States, but that tribunal has always been unwilling to determine the point. Frederickson v. The State of Louisiana, 23 How. 445; The People v. Gerke, 5 Cal. 381. Any interference with the descent of land is most probably unconstitutional, when it is the result of the action of the federal government. However, it is better for the New York legislature to settle the present question by a short statute such as Mr. Lawrence recom

mends, rather than to relegate its uneasy female citizens to costly litigation before the supreme court of the immediate attention of Governor Hoffman. United States. This matter is well worthy the

CONSTRUCTION OF WILLS. No. II.

EXTRINSIC EVIDENCE.

Sir James Wigram was tainted with the not uncommon impression that where a writing is rendered necessary by statute, the exclusion of extrinsic evidence is more rigorously insisted on than where a document is required by the common law. This somewhat prevalent notion is sanctioned by several dicta in the reports. See Norton v. Simmes, Hobart, 14; Newman v. Newman, 4 M. & Sel. 66; Goss v. Van Nugent, 5 B. & Ad. 58. There is no real foundation, however, for the distinction in question. It is not

hard to discover the origin of the error- for such it is, although an abstract one and not leading to any practical inconvenience. Wills are, like articles, so far of an executory nature that the courts will, if possible, render every clause operative. Such instruments, accordingly, are more benignly interpreted than other documents. The result has been that an indirect consequence of general testamentary exposition has been hastily applied to all transactions which are required by statute to be evidenced by writing. When, however, the court has transposed the clauses in a will-which it can do with greater ease than where the document in question is inter vivos-the manuscript in the one case is subject exactly to the same rules of extrinsic evidence, though not of interpretation, as in the other. Sir James Wigram, therefore, ought to have treated of the admissibility of extrinsic evidence generally, to help in the explanation of a written document. His composing a treatise on the rules regulating the admissibility of extrinsic evidence, as regards the interpretation of wills, implies that these rules differ in some respects from the rules respecting the admissibility of parol evidence, where the document in question is inter vivos. Expressio unis est exclusio alterius. A treatise on the vision and optic nerves of the Chinese would imply that optics differed in China from our own experience of the laws of light. An account of the operations of the thermometer as ascertained in the island of Malta, would denote that the instrument in question worked by different laws elsewhere. A treatise on contingent remainders indicates that they differ, in certain legal incidents, from vested remainders. And so a treatise on "the admission of extrinsic evidence in, and of the interpretation of, wills," amounts to an assertion that wills differ from documents, inter vivos, with respect to the admission of such evidence to aid the court in construing the manuscript. This impression is erroneous. All written documents, whether required by common law or statute, and whether testamentary or inter vivos, are amenable to the same rules of extrinsic evidence, however widely their interpretation or extrinsic evidence may be expounded by the court. The practitioner, therefore, when adducing parol evidence to aid in the interpretation of a will, will do well to often look outside of treatises or testaments only, and to see what writers on deeds and unsealed documents say on the question. Any case decided with respect to instruments of the latter species is equally relevant to a similar question arising under a will, provided the extrinsic evidence is not a writing which, in the particular case, should have been executed as a will. But all verbal extrinsic evidence stands on the same footing, in relation to documents, and it is immaterial whether these are testamentary or inter vivos.

Accordingly, evidence of a custom of trade may be adduced to show the sense in which a term of trade was used by the testator. This evidence, of course,

may be precluded if the testator has shown, by the use of the same word in other parts of the will, that he did not intend to use the term in question in the trading sense, but with a peculiar meaning of his own. Richardson v. Watson, 4 B. & Ad. 799; 1 Nev. & Mann. 575. The court "put themselves in the place of the testator, and then see how the terms of the will affect the property," per Parke, J., in Doe & Templeman v. Martin, 1 Nev. & Mann. 524. The testator's own idea, as expressed in other parts of the will, are, of course, the best evidence of his condition of mind, and of the meaning he attached to the terms employed by him. But when we fail to receive any such light from the context, the custom of the country or of persons of the same profession as the testator is as much admissible as if the manuscript here are inter vivos; and, conversely, a written contract is open to all extrinsic evidence that may be adduced to interpret a will.

We repeat that, as regards extrinsic verbal evidence, wills and other documents are on all fours, although, of course, wills and articles will often receive an interpretation not allowable if the same sentences were contained in a deed. In fact, executory instruments, such as marriage articles, are actually more flexible than wills, as regards the rule in Shelley's Case, and the depriving of technical words of their strict, legal significance. Wills, therefore, instead of being exclusively subject to certain peculiar rules for the furtherance of a testator's intention, are less liberally construed than certain classes of documents inter vivos, viz.: marriage articles. This, indeed, is a point of intrinsic, not extrinsic, evidence; but it shows that wills are not alone in the favor they receive from the courts, since executory instruments are still more liberally and less technically construed. Wills, then, are mid-way between instruments executed and executory, as regards the power of the courts. They are more liberally construed, as regards their intrinsic evidences, than the former class of instruments, and less liberally than the latter. But as regards the admissibility of extrinsic verbal evidence, wills, executed and executory instruments stand exactly on the same footing, nor is there a single rule respecting the admissibility of parol peculiar to any of these three classes of manuscripts; but all are alike amenable to the same rules of extrinsic verbal evidence, though not of construction.

Sir James Wigram's opinion on this point is, however, confirmed, to a certain extent, by a matter that he does not appear to have at all contemplated. Wills of real estate when he wrote, and all English wills since 1 Vict. ch. 26, require to be subscribed by the names of witnesses. It is obvious, therefore, that an unattested document can be given in evidence to explain another writing, but is unavailing as regards a will, except to the extent to which mere verbal evidence can be adduced on the point in question. A statute that requires attestation as well as a writing,