The Albany Law Journal. ALBANY, SEPTEMBER 21, 1872. LEGAL JOURNALISM. A remarkable feature of the last half century is the development of legal journalism. No department of life, in fact, which lays any claim to greatness or power can now afford to do without its literary vehicle of expression. That the law was the last of the great professions to accept journalism as a means of advancement and power is not at all marvelous when the characteristics of the legal profession are considered. Law being a practical necessity for the whole people, and being constantly brought to their personal knowledge, was in no need of being communicated by any literary medium from afar. Law being arbitrary, and clothed with real or assumed infallibility, and with authority from which there was no appeal save to arms, there was little use for discussion and criticism either of positive or judicial law. The law being in the nature of a "secret" to the profession, and being easily communicated without the intervention of literature among the brotherhood, there was no pressing demand for any literary embodiment except statute books, judicial reports and elementary works. The processes of making law, except in the department of legislation, were as mysterious to the people as were the doings in the cave at Delphi. An institution devoted to the public criticism of judicial decisions, of rules of law, of forms and institutions of law, and of legislation, to the suggestion of law reform, to the improvement of legal education, to the modification of legal systems, the judiciary and the jury, to the amendment of fundamental and constitutional law, to the exposition of the modes in which rules of law came to be such, and the various modifications, dissensions and approvals with which each rule has met in its advance the history of the law-such an institution was deemed a profanation of law, an invasion of the sanctity of the courts, and an intolerable thing. But at the present we have just such an institution in legal journalism. Moreover, the province of legal journalism is enlarged, and made to be an almost indispensable auxiliary to the profession by the early publication of legal news, of important decisions from all parts of the world, of abstracts and digests of opinions of judges in the courts of last resort far and near, and of well-written, able and elaborate articles on new or doubtful legal subjects. Law journals are also the means of the dissemination of the views of distinguished men upon topics of vital interest to the profession, not only in its internal and legal relations, but in its external and social and political relations. The field is certainly immense, and the alacrity with which the profession respond to the wants of legal journalism shows that they perceive its utility and power and its constantly increasing importance. And there is abundant reason to believe and to hope that we are in the beginning of an era of legal journalism which shall be brilliant in success, powerful in the accomplishment of law reform, indispensable in the mutual improvement of the members of the profession, and distinguished for the literary, as well as legal, lustre which it shall reveal in the law and the lawyers. ECCLESIASTICAL JURISDICTION. The complete absence of any connection between church and state in the United States has been the ground of much interesting observation and speculation on the part of transatlantic nations, and the source of some anxiety as well as much exultation on the part of ourselves. The rare spectacle has been presented of a large and populous nation, within whose borders all sorts of creeds and religions have found refuge, toleration and prosperity, without any positive assistance from the government or any direct authority from the courts. Ecclesiastical law has been as varied as the religious notions of the majorities of the communities constituting the several denominations. Each denomination has made and executed its own ecclesiastical laws, with reference to spiritual matters. But the validity of denominational rules, when applied to temporal things, to property and material rights, constituted the ground of anxiety and contention. Occupying an independent position, the churches would naturally, only as a last resort, seek redress for material wrongs, even, in secular tribunals. The courts, on the other hand, recognizing no theological or spiritual subjects as coming within their jurisdiction, were at a loss to know how much to arrogate to themselves, and at what bounds their jurisdiction should cease. But the ecclesiastical adjudication of this country has now attained such a magnitude as to prepare the way for a pretty definite and wellsettled rule of law in reference to ecclesiastical jurisdiction. A foreign writer,* in commenting upon the principles laid down in Watson v. Jones, decided in the supreme court of the United States last winter, says, that "the transatlantic key is very simple, but it remains to be seen how much it will unlock. It is very much our interest to watch it. It may no doubt be possible, under our doctrine of contract, for equity to spell out (by inquiry into each case) all that the American common law holds (without inquiry) to be involved in ecclesiastical jurisdiction. But the legal process is laborious and vexatious, and the judicial results, both in England and Scotland, have hitherto been timid and feeble and vacillating. The American doc*Journal of Jurisprudence and Scottish Law Magazine, July, 1872. trine, on the other hand, sounds to most lawyers here like magnificent audacity. Yet it is the most ancient and famous principle in the whole region, and the strange thing is to find it coming back, not from Rome or Geneva, but as the deliberate result of a hundred years' experience in freedom." It will thus be seen, that, to the European juridical observer, the subject of ecclesiastical jurisdiction in the United States is one of immense importance and interest, and if, by reason of distance or want of familiarity with the nature and spirit of our institutions, British lawyers regard the development of the doctrines of our courts in any respect as "magnificent audacity," it is sufficient to say to them that the magnificence of the audacity is fairly equaled by the magnificence of the success. The "key" to the juridical position, when the difficulty and grandeur of the object to be attained is considered, is, indeed, "simple." It is said by Williams, Ch. J., in Calkins v. Cheney, a case decided in Illinois a few months since, to be this: "In all matters of religious faith and practice, ecclesiastical courts, provided they have oɔtained jurisdiction, are as entirely independent of the civil tribunals as the latter are of the former upon all questions relating to property interests. Yet when passing upon the title of, and interests in, church property, civil courts not only recognize the validity of, but give effect to, the decisions of church judicatories." German Reformed Church v. Seibert, 3 Barr. 291; Harwan v. Dreher, 1 Spear's Equity, 121; Shannon v. Frost, 3 B. Monr. 258; State v. Farris, 45 Mo. 196; Diefendorf v. Reformed Catholic Church, Jolins. 12; Albany Dutch Church v. Bradford, 8 Cow. 457; Walker v. Wainwright, 16 Barb. 486. "Except in the case of the existence of acts of incorporation changing the common law (which will be hereafter considered), civil courts also compel the trustees, the holders of the legal title, to hold it subject to the decision of the proper church judicatories upon spiritual questions, provided such decisions have been made." 3 Meriv. 353; Baker v. Fales. 16 Mass. 487; Stebbins v. Jennings, 10 Pick. 172; Watson et al. v. Jones et al., 1 Zab. 653; 3 Myl. & Craig, 81; Manuscript Decision of U. S. Supreme Court, December, 1871." And in Schorr's appeal (decided in January, 1871). 5 Am. Rep. (67 Penn. St. 138), the general doctrine was thus enunciated by Justice Sharswood: "When property, real or personal, is vested in a religious society, whether incorporated or not as a church or congregation for the worship of Almighty God and the promotion of piety and godly living, it is a charitable use, whether the owner be one or many. The corporation or society are trustees, and can no more divert the property from the use to which it was originally dedicated than any other trustees can. If they should undertake to divert the funds, equity will raise some other trustee to administer them, and apply them according to the intention of the original donors or subscribers. * * * When a church has been organized and endowed, whether by donation or subscription, as belonging to any particular sect, or in subordination to any particular form of church government, it cannot break off from that connection and government." And Justice Williams, in the same case, said: "In church organizations those who adhere and submit to the regular order of the church, local and general, though a minority, are the true congregation and corporation, if incorporated.” This doctrine has been held with singular unanim20|ity by the courts of the several States, and has received the sanction of the highest tribunal in the country, the supreme court of the United States. The law, with reference to the power of majorities in single church organizations, is different in New York. Petty v. Tooker, 21 N. Y. 267, involved the inquiry whether the trustees and a majority of the society could change from Congregationalists to Presbyterians, and retain possession of the church property against those who adhered to the faith of the founders of the church and society. The court held that they could so change. See, also, Robertson v. Bullions, 11 N. Y. 243. A trust for the support of a specified faith, doctrine and government cannot be made in New York so as to prevent a majority of the members of the church and corporation from effecting changes in the mode of worship. See Gram v. The Prussian, etc., German Society, 36 N. Y. 161. But this anomalous condition is due to the independent nature of individual churches under the New York incorporation laws. "Neither will the courts, in the absence of acts of incorporation which change the common law, permit a majority of the members of a church which is itself connected with and subject to the jurisdiction and government of a superior church judicatory, to secede from the denomination to which they have voluntarily attached themselves, and take with them the church property. Such an act is regarded in law as a perversion of the trust, and the court of equity will reach forth its strong arm to prevent it. The holders of the legal title are regarded in a court of equity as holding it in trust for the maintenance of the faith and worship of the founders of the organization, and any diversion of it to another use is so far a breach of trust as to demand the interposition of the courts, English and American. Harmon v. Dreher, 1 Spear's Eq. 87; Kniskern v. Lutheran Church, 1 Sandf. Ch.; Attorney-General v. Pearson, The solution of the great problem of ecclesiastical jurisdiction in this country, in a manner at once so satisfactory, simple and effectual, is a signal triumph of American institutions, both juridical and ecclesiastical. The harmony and mutual support of church and state is thus effected, without any constitutional dependence or connection. ANCIENT LAW. The influence which the Pentateuch and the early Jewish law have had, not only upon the moral and religious side of medieval and modern law, but also upon the civil and social side, cannot well be estimated. The Law Magazine and Review gives an excellent article on the growth of Jewish law, from which the following is an extract: How then was it that Jewish law had its growth, and what were the agencies by which it received its development? Firstly, we may say that the decisions and dicta of the judges, in process of time, added to the written code a large body of case-law, or binding precedents, answering to our common law; and secondly, the teachings of the Hebrew jurisconsult, or Responsa Prudentum, which were held binding, and formed much of the traditionary law which so powerfully influenced the people, and also contributed much toward this growth and development. ** * First, then, we may remark that the office of judge and the institution of law courts among the Hebrews, are incidents of their early history. Judges, it is well known, were appointed in every city for the determination of minor questions. Whatever be the date of the institution of the Sanhedrim, it is certain that a supreme court, consisting of seventy judges, existed as early even as the time of Moses. To this court were referred matters of difficulty and importance, which were left undecided by the inferior judges. Now, it must be remembered that every judgment or sentence pronounced in the several causes which came up for determination, gained the authority of, and was in fact, binding law, and this by Divine injunction. 'Thou shalt come unto the priests, the Levites, and unto the judge that shall be in those days and inquire, and they shall show thee the sentence of judgment. ** According to the sentence of the law which they shall teach thee, and according to the judgment which they shall tell thee, thou shalt do; thou shalt not decline from the sentence which they shall show thee, to the right hand nor to the left.' Every judgment was inspired. What then were the functions of the judge? He was required (1) to apply the law where it was clearly applicable; (2) to interpret it in cases of doubt; and (3) to provide for cases which were not contemplated by the written statute, or, in other words, for instances in which the written statute was silent. Under such circumstances, cases of considerable doubt and difficulty might have been expected to arise for decision by the courts. Notwithstanding the law was generally well known (children being instructed in it), cases arose in which the judge had nothing to guide him, either in the written statute or the unwritten body of precedents. Of these there are familiar instances. The written code of the Hebrews, it is well known, did not admit females to the inheritance of property. The case, however, of the daughters of Zelophehad, reported in the Pentateuch, as for the first time introducing inheritance by females into Hebrew law, with its attendant restriction, that the heiress should marry within her tribe, is a valid instance of a judicial decision, founding a rule of law. Here the statute was silent, and circumstances called for a decision, which, when once pronounced, introduced a rule which obtained a force as obligatory as that which attached to the written code of Moses. Again, the original institutions of the Jews having provided nowhere for the privileges of testatorship, the later Rabbinical jurisprudence is found allowing the power of testation to attach, when all the kindred, entitled under the Mosaic system to succeed, have failed or are undiscoverable.* But whence did the innovation receive its sanction and binding force? Probably it will be found that the rule in the later jurisprudence had its origin in very early times, and was introduced as a judicial decision when the subject first came up before a competent tribunal. There are, again, various provisions made in the Pentateuch regarding marriage, but the law is totally silent as to what constituted a legal marriage. Such cases, it may be said, were to be met by a judicial sentence. Indeed, provision was made in the law to meet the exigency of such cases. 'If there arise a matter too hard for thee in judgment between blood and blood, between plea and plea, and between stroke and stroke, being matters of controversy within thy gates, then shalt thou arise, and get thee up into the place which the Lord thy God shall choose. Thou shalt come unto the priests, the Levites, and unto the judge that shall be in those days and inquire, and they shall show thee the sentence of judgment.' It cannot be supposed that the additions thus made to the written law fell within the category of unauthorized precedents. Every judgment was binding, and every judge was, in fact, a minor legislator, speaking under direct inspiration. A mass of unwritten law thus originated, and, in the course of development, new rules of law took the place of what had become obsolete. But it is difficult to trace the changes which overtook Hebrew jurisprudence. In an age of much writing, we might have expected, at times, a digest of the lex non scripta. But with the exception of the Talmud, which contains much of this law surviving at the time of its compilation, there seems to have been no earlier attempt at any thing like codification. It is not, however, improbable that the book of Deuteronomy embodies in itself some fragments of the unwritten law, current at the time of its compilation. Whether the book of the law found in the temple in the reign of Josiah be the book of Deuteronomy, or whether Jeremiah be the Deuteronomist instead of Moses, are questions sufficiently discussed by Dr. See Maine's "Ancient Law," 197. |