BOOK NOTICES.

Commentaries on the Criminal Law, by Joel Prentiss Bishop. Fifth edition, two volumes. Boston: Little, Brown and Company, 1872.

Criminal law will always be one of the most interesting and philosophical branches of jurisprudence. To a laborious and deep thinker like Mr. Bishop, the department of criminal law presents exceptional attractions. The author of these volumes, therefore, writes like one not only well prepared for the work which he undertakes, but possessed of zeal and determination. Perhaps no other writer has made so comprehensive and exhaustive an analysis of criminal law from the adjudged cases; and we are quite sure that no other writer has attempted a series of works on the general subject of criminal law consisting of seven large volumes, of which the "Commentaries on Criminal Law " forms two volumes; the "Commentaries on Criminal Procedure" forms two more volumes, and the "Law of Statutory Crimes," soon to be published, forms another volume. The author tells us that this last-mentioned work will also be followed by another, in two volumes, which will be occupied with Precedents of Pleas and Indictments. If any thing further than this fact were needed to impress one with Mr. Bishop's indefatigability and research, an examination of his "Commentaries on the Criminal Law" alone, would be more than sufficient. This work has been about fifteen years before the profession, and has met with continuous approval. It has gone through five editions, the last bringing it down to the present time in the citation of authorities. The matter has been re-arranged throughout; some new topics have been added, and many of the old doctrines have been presented in new lights and relations. A work of so long standing and so many editions prepared expressly by the author himself, cannot be otherwise than exhaustive in its line. Mr. Bishop's style, mode of treatment and reliability are too well known to the profession to require any comment here. In his chapter on "Books on Criminal Law" the author attempts a very difficult task, viz.: a criticism of works kindred to his own, and direct rivals of his own for professional favor. His observations on the various works in criminal law are generally characterized by good sense and forbearance, some times by appreciation, and occasionally by severity amounting almost to disdain. As an instance of this latter mode of criticism we may cite Mr. Bishop's observations on the time-honored and valuable treatise of Mr. Wharton: "It is after the common style of modern lawbooks, in which the digest overshadows the treatise!" ***"If the author should give it a thorough revision, embracing a fresh examination of all his authorities, he would, by increasing its accuracy, extend somewhat the length of its life." Of Judge Lewis's " "Abridgment of the Criminal Law of the United States" Mr. Bishop says: "It was an effort, however, too hasty to be permanent, and though the book has become scarce and not easy to be obtained, it has never been printed in a second edition." Of Bennett and Heard's "Leading Cases in Criminal Law" our author rather curtly observes that it "is a work of a well-known sort, and well executed for the kind." This kind of treatment may be all proper and deserving, and may be very appropriate for the reviewer, but it sounds too much like praising one's self by running down one's neighbors and is quite out of place in a grave, philosophical and elaborate treatise like the "Commentaries on Criminal Law." But what would be assumption in a new

and less able writer will not be so regarded in Mr. Bishop; and what would be regarded as unpardonable in an author of less authority and reputation will be pardonable in the author of the best work on "Criminal Law" ever published.

Ecclesiastical Law in the State of New York. By Murray Hoffman. New York: Pott & Amery (now Pott, Young & Co.), 1868.

The Ritual Law of the Church. By Murray Hoffman. New York: Pott, Young & Co., 1872.

These are companion books, although each is complete without the other. As the author says in his preface to Ecclesiastical Law in New York, "questions connected with the incorporation of religious societies, under the statutes of the State of New York, have come frequently, of late years, before our courts of justice. These questions are often influenced by the ecclesiastical system of the church or body in connection with which they arise." The recent adjudications in the various States, and in the supreme court of the United States, have demonstrated that the ecclesiastical law of a denomination will be enforced by the civil courts in all material matters. A well-settled ecclesiastical law is, therefore, a desirable thing for each denomination, and a knowledge of such law, conveyed in such a concise, clear and logical manner, as is done by Mr. Hoffman, is equally desirable. In "Ecclesiastical Law in New York," the author sets forth "the statute law, the decisions of courts of justice, and such ecclesiastical regulations as are useful in explaining the positive law and its mode of execution," together with an historical notice of "all those churches which had a place of any importance in the colony before the Revolution." This work includes the laws of organization and government of the Protestant Episcopal Church, the Dutch Church, the Presbyterian Church, the French Church, the Lutheran Church, the Roman Catholic Church, the Reformed Presbyterian Church, the Associate Reformed Church of New York, the Methodist Episcopal Church, the Quakers and the Shakers; and contains a variety of information on burying-grounds, cemeteries, vaults, pews and pew-holders, disturbance of religious worship, etc. To that very large and powerful class in America which are connected with the "Episcopal' Church, the "Ritual Law of the Church" will be of especial interest. This volume considers the application of the ritual law to the communion and baptismal offices, and is provided with notes upon Orders, the Articles and Canons of 1603. These two admirable works upon a subject which for the last decade has occupied a large place in the religious and legal mind, cannot fail to be of service to the public and the profession.

The Practice at Law, in Equity and in Special Proceedings, in all the Courts of Record in the State of New York, with appropriate forms. By William Wait, Counselor at Law. Vol. 1. William Gould & Sons, Albany, N. Y., 1872.

Under the practice, prior to the Code, we had three volumes of the practice at law by Burrill, one by Graham upon the same subject, and two in equity by Barbour. Since the Code we have had two volumes upon the equity practice by Mr. Van Santvoord, two by Tillinghast and Shearman, two by Mr. Whittaker, and three by Tiffany and Smith upon the practice generally, and two upon special proceedings by Crary. A complete and harmonious work upon law, equity and special proceedings, by the same author, was very

much needed. Indeed, under the patchwork of so many authors, it was almost impossible for a student to learn what the practice upon a question of any intricacy was, and the practitioner frequently found himself at a loss to find what he desired. Mr. Wait had had much experience in compiling a digest of the New York reports, and annotating its Code, and was peculiarly fitted for the task of preparing the much needed work. We were pleased at his announcement that he would undertake it, and we are not disappointed in the first volume, which is now before us. His work will, as it deserves, become the standard, and we may now hope, after twenty-five years' operation of the Code, on the completion of his work, for some degree of uniformity in the practice throughout the State. We have delayed noticing this volume until we could examine it somewhat thoroughly. We have done so and find it very full, accurate and well arranged. It has an excellent index of over 100 pagesa matter of great importance in a hand-book of practice, to which reference must constantly be made at special term and at nisi prius.

There is one promise that the author makes in his preface that it is to be hoped he will conclude, on further reflection, not to fulfill, that is, to give in a subsequent volume a complete code and a set of rules of the courts. There are some six or eight late editions of the Code already extant- quite enough surely to supply the demand-and to tack another to Mr. Wait's work would not add to its value, but only serve to swell the size or number of the volumes. Such padding is unjustifiable.

The New York Registry Law. -The registry law passed by the last legislature of this State has been published by Messrs. Weed, Parsons & Co., with full instructions and forms for registers and also instructions for inspectors of election. Members of boards of registry and inspectors will find this little pamphlet of great value in the discharge of their duties.

CORRESPONDENCE.

EDITOR ALBANY LAW JOURNAL:

In the article in your journal of 7th September, 1872 (6 Albany Law Journal, 149), entitled "What constitutes promise of marriage," is discussed, somewhat, the law of what is evidence of a promise of marriage, in an action for the breach of such promise. It is there shown that it was very early settled by the courts that the plaintiff might prove, in such action, such facts and circumstances in connection with, or having relation to, the parties, as would naturally and usually exist under a promise of marriage between them, and that the jury might then say, from such testimony, whether or not the parties had, behind all that, in fact, made such promise.

A promise of marriage is of so delicate and private a nature that it is usually breathed only by the parties making it. It is known, therefore, to them only. In an action for the breach of such promise, when the courts settled the above as the law, the parties could not testify. The courts, therefore, held as they did, from the necessity of the case.

But now, in the States where, by statute, the parties to an action go upon the stand and testify as witnesses in the case, has the above principle of law any application

Where, for instance, in an action for a breach of promise of marriage, the plaintiff is a witness in the case, she testifies - - or which is the same practically, can testify - directly and specifically as to the promise, or as to what passed and occurred between her and the defendant, which it is claimed constitutes the promise. Now, after a plaintiff has done this, I apprehend that it would not be competent for her to then give in evidence such facts and circumstances as usually accompany a promise of marriage, and ask that the jury may infer from these facts and circumstances, and behind them, a promise of marriage, in the face of her testimony as to the promise. The promise that she testified to is the one she must abide by. Can she ask that any other may be inferred ?

Such facts and circumstances usually accompanying a promise of marriage, as corroborate the plaintiff as to the promise testified to by her, may be given in evidence for that purpose. But can they for any other? Have not, therefore, the circumstances from which a promise of marriage might be inferred, before the statute enabling parties to testify, become since that statute, corroborating testimony only, and subject to the rules of such testimony, in its introduction to the jury? P.

TIFFIN, Ohio.

FOREIGN NOTES.

Sir John Duke Coleridge, and other distinguished jurists of England, are advocating, in the newspapers, a codification or digest of the laws of England, similar to the Code of New York. The ex-Emperor, Napoleon, has been sued for breach of contract by the publishers of his work on Julius Cæsar. The case will be tried before the first chamber of the civil tribunal at the next term. - The German government has issued a second circular, in still more threatening terms than the original one, against immigrants, who, it declares, will be treated as outlaws, over whom special surveil ance and supervision has been instituted. Despite the menaces of the government, immigration from Germany has been slightly affected. - From a recent report made by M. Depeyere, upon the work done by the various courts-martial of France up to July 15th, it appears that more than 90,000 Communists have been condemned by the French courts, of whom 72 were sentenced to death, 192 to penal servitude, 952 to transportation and confinement in a fortress, 3,089 to simple transportation, 1,130 to detention, and 302 to banishment. During the recent meeting of Emperors in Berlin, the subject of the inviolability of private property at sea, in time of war, was considered by Prince Gortschakoff, Count Andrassy and Prince Bismarck. It was regarded as a good omen for the final establishment of the principle that the governments of the United States, Austria, Germany, Russia, Italy and Holland were united in its support.

In view of the continued increase of crime among the young men of San Francisco, the grand jury, in their recent report, devoted a considerable space to impressing upon parents the duty of restraining their boys from frequenting the public saloons of the city.

The London Times published letters, signed by the Governor and Executive Council of Maine, and by Messrs. Hamlin, Morrill, Frye and Blaine, setting forth the good effects which have been produced by the enactment and enforcement of the Liquor law.

It is not to be expected that men, who came up from weighing their butter and cheese to a court of justice to weigh the evidence in a complicated case, should always or usually arrive each and every one at the same conclusion, but the necessity of returning a unanimous verdict must, and does, lead to improper compromise among the jurors of their respective opinions. The compromise may not often (though it has been known to be sometimes) be determined by the result of a game of "seven up" or "old sledge," yet, if it be effected against the solemn convictions of any one man, it is in violation of his oath, against the interests of justice, and a gross defeat of the object of requiring unanimity.

There is another potent reason why unanimity ought not to be required. It not infrequently happens -as those familiar with courts and juries well know that, despite the safeguards of the law, a friend of one of the contending parties, or at least one actuated by partial motives, succeeds in getting upon the jury, and it is obvious that, under the present system, such a thing must tend to produce a corrupt verdict or an irreconcilable difference.

On the other hand, however, the necessity for unanimity carries with it one most valuable advantage. In the event of any difference of opinion, it secures discussion; it is not possible to come to a conclusion at once, and any one dissenting person can compel the other eleven, fully and calmly to regonsider their opinion.

But there seems to be no good reason why, after a certain period of time sufficiently long to insure reasonable discussion, the jury, if still in disagreement, should not be excused from the necessity of giving a unanimous verdict. The sole object of the present system can be accomplished, and the many objections to it obviated, by providing that a jury shall be kept in deliberation for twelve hours if they cannot sooner agree upon a unanimous verdict; and that, at the expiration of that time, if any nine of them concur in giving a verdict, such verdict shall be received as though it were the verdict of the twelve.

The system of requiring a majority verdict has been thoroughly tried in Scotland, and Lord Neaves, an eminent Scotch judge and jurist, has only recently spoken in high praise of the success of that system. It is time that we gave this matter attention in this country. The interests of justice demand a change of the existing law upon the subject, and we entertain some hope that our legislative Solons will heed it during the coming winter.

THE WORK OF THE STATUTE REVISION COMMISSION.

The commissioners engaged in revising the statute laws of this State have issued another portion of their work "for distribution to the judges and others, for he purpose of receiving suggestions before the final

review of the work by the commissioners, and its submission to the legislature." The part now issued contains four chapters; the fifth, sixth, seventh and eighth, each of which is subdivided into titles. The fifth chapter treats of the "Commencement of and parties to civil actions;" the sixth, of "Pleadings in courts of record, including counterclaims;" the seventh, of "Provisional remedies in civil actions generally;" the eighth, of "Miscellaneous interlocutory proceedings and regulations of practice."

This brief synopsis will indicate that this is a very important portion of the commissioners' work, and one of real interest to every practitioner in the State. On a casual perusal of its contents one is apt to be a little startled at the numerous and sometimes important changes they have made in our existing Code of Procedure, but one finds on more careful examination that these changes do not, in the main, vary, to any important extent, the provisions of our present law. The commissioners say in their introductory remarks: "The chapters now published propose more additions to the existing statutes, and greater changes in their structure, than will probably be found in any other portion of the third part of equal length. This remark is particularly applicable to those portions which relate to subjects treated of in corresponding provisions of the Code of Procedure; and a hasty examination of the following pages may lead to the suspicion that the proposed amendments to that statute go beyond the directions of the act under which we were appointed, and the resolutions adopted by the commission in September, 1871, as stated in the majority report made to the last session of the legislature. But we are confident that such a suspicion will vanish upon a careful and unprejudiced examination of the work. This will show that we have scrupulously refrained from proposing any radical changes in the Code; and that, except where its defects were very glaring, our amendments are merely such as were required either to carry out the principles upon which it was framed, by supplying its omissions and imperfections in matters of detail, or to remove the excrescences which have grown around it in consequence of party legislation, or to settle the many vexed questions which have arisen upon particular provisions, or to harmonize its enactments and those of the Revised Statutes, in cases where they relate, either in whole or in part, to the same subject."

Our present Code of Procedure is by no means a model. Being in the beginning nothing more than the incomplete report of the code commissioners, it has been so patched and tinkered by subsequent legislation that its own fathers, were they now to see it for the first time since its adoption, would hardly recognize in it the offspring of their brain. But such as it is, we have got used to it; and this, with that feeling that many entertain against change, good or bad, this "let-well-enough-alone" spirit will lead them to deprecate the well-meant endeavors of this