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The Albany Law Journal.

ALBANY, DECEMBER 21, 1872.

CONCERNING THE READING OF MANY

BOOKS.

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Hobbes, of Malmesbury, used to say: If I had read as many books as other persons I should, probably, know as little;" and the saying had a sermon in it which we have, most of us, been very slow to learn. We read too many books, and especially is this true of lawyers and law students. We remember to have seen a course of law reading for students," recommended in some old book which, it was remarked, "could be accomplished in about ten years," and to an edition of Wynne's Eunomus there is prefixed a "plan of reading for special pleaders" that makes one's head ache simply to contemplate. Such a legal ground plan is not unlike Robinson Crusoe's goat pen, so large as to give him as little property in his flock as though he had no pen at all.

And the worst of it is that most law students pursue their studies, or rather reading, for it is not study, much on the same principle. One book after another is gone through hastily, mechanically, little remembered and less understood, and after a certain time they come to the bar with no clear, well-defined knowledge of any thing. In thinking of the average law students' career, one is reminded of Swift's witty remark, that the reason a certain university was a learned place was, that some persons took some learning there and few brought any away with them, so it accumulated.

A late learned professor in a law school used to remark to his classes that any man who knew the contents of three books, which he named, would be a better lawyer than there was in the State; and we do not doubt he was correct. The usual method of a law student is to read seriatim Blackstone, and Kent, and Greenleaf, and Washburn on Real Property, and Parsons on Contracts, and works on Practice, Bills and Notes, Partnership, Easements, Domestic Relations, Pleadings, Commercial Law, Agency and whatnot, until he has a sufficient smattering to enable him to pass a meagre examination and take his place at the bar. But after all this, how much does he really know, as a rule, on any one of the subjects named. Certainly, not much. Now, had he devoted all this time to carefully reading and re-reading Blackstone or Kent, can there be a reasonable doubt that his knowledge on all or nearly all the subjects would have been ten or twenty fold? Mr. Warren tells, in his admirable work on "Law Studies," that he once asked one of the most eminent political writers of the day, one who had been, on several occasions, signally successful in attacking the opinions of lawyers in parliament, how it was that, not being a lawyer, he was so com

pletely at home on legal subjects. "Why," was the reply, “I study a book which you lawyers only talk about or look down upon, Blackstone's Commentaries."

It is a conceded fact in military science, that a few disciplined forces are far more efficient than a much larger number of undisciplined men, and the same is true in the law. A few books, thoroughly mastered, will furnish a knowledge that will make one stronger and better able to cope with difficulties, than any number of books but half understood or remembered; or, as the Germans put it—and none better understand practical education - "nothing is so prolific as a little known well." The old Latin proverb reminds us of this fact-Cave ab homine unius libri― beware of the man of one book. He will always be found to be a formidable antagonist. His intimate knowledge of one great author will saturate his mind with the excellencies of that author's genius, will shape and sharpen his faculties, and he will be like a man who sleeps with armor on, ready at the moment. While, of course, in the law it is impossible to be a "man of one book" literally, yet, in its spirit and true meaning, it is not only possible, but desirable; that is, to pursue one system, to choose a few authors and to be thorough in a limited sphere, rather than superficial in one more extended. Sir William Jones, it is said, invariably read through every year the works of Cicero; Demosthenes copied and re-copied the history of Thucydides eight times; Montesquieu was a constant student of Tacitus; Chatham read Barrow's sermons until he could repeat most of them from memory; Webster read Plutarch's lives every year. These are but few of the hundreds of worthy witnesses who have, by example, testified to the value of iteration and reiteration. Each had his particular object, and how well he accomplished it we know. If logic or style or diction can be thus best acquired, so can the law. The student who shall take Blackstone or Kent and make that his book, who shall have it ever at hand, read, re-read, "marked and quoted; ' who shall make incursions into other treatises and the reports, only to illustrate it and trace its doctrines, will have a more thorough, practical and comprehensive knowledge of the law than though he had gone through the entire curriculum of the law schools. In re-reading a book a man does not get precisely the same information that he did on the first reading, for the interval between the readings will call attention to a new order of facts, and, like the bits of glass in the kaleidoscope, they will assume new combinations and make new impressions.

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There are very few legal text-books that should be read through, "from cover to cover." The others ought to be studied on particular topics in connection with the few aforesaid. It is a well-known fact that Dr. Johnson said he never read any book through but the Bible, yet Adam Smith said, "Johnson knew more books than any man alive." The secret of this

is easily found in Boswell's remark: "He had a peculiar facility in seizing at once what was valuable in any book without submitting to the labor of perusing it from beginning to end."

This faculty of getting directly at what one desires in a book is of supreme value to the law student, and one which he can cultivate and greatly improve by confining his chief attention to a few books and using the others only as adjuncts. We are not speaking of the reports, for to them the student should constantly turn, but, as a rule, only in connection with the particular topic that he is pursuing in his text-book. He should carefully examine the authorities cited by his author and what later leading cases he can find on the subject, should master the facts and the reasons on which the decisions are based, and should then write out his results as a kind of annotation to his treatise. This process will make "every man his own author," will train his intellect, develop his reasoning powers, fix legal principles in his memory and make him a more thorough lawyer than any number of years' careless, half-interested, reading "by course' could do. He will have the substance instead of the shadow of real knowledge.

THE LAW'S DELAY, AND HOW TO AVOID IT. Litigants in the courts in New York city justly complain of the great delay in reaching causes for trial. In some of the courts a period of about two years elapses after filing the note of issue before the cause is reached, and in none of them is it less than from six to eight months. The witnesses during this long interval cannot be kept together; they become scattered or they die; their recollection of the facts grows indistinct; their interest as well as that of the parties is lost, as new and more engrossing matters occupy their attention; and finally, when the cause is reached, it is postponed from term to term, and either abandoned because material witnesses cannot be produced, or tried and lost for want of the evidence which, at the outset, was readily attainable. The result is prejudicial to lawyers as well as clients. Many men, especially merchants, having had experience at what they term "the law's delay," submit to ruinous sacrifices, or absolute loss, rather than commence actions.

It is needless to examine, at any great length, the causes of this delay. Judges blame the lawyers, and complain that they are never ready with their cases; lawyers blame the judges, and say they do not sit as long as they might, or give their full time to judicial duties; or that they are too willing to listen to excuses; and litigants blame both judges and lawyers, holding them at fault all around. None of these censures are fairly deserved. No fair-minded man aware of the immense volume of business before the New York courts, and the time actually employed by the judges in performing their judicial functions, would

make a charge of laziness against them. As a class they are obliged to work very hard, not only during the hours of ordinary labor, but when other men are enjoying their leisure. Apart from the time actually spent upon the bench, each of the judges must devote several hours to the examination of cases, or questions reserved for decision, and the writing of opinions. Even the summer holiday is not always a period of mere recreation. It would be very unfair to conclude that when a judge leaves the bench his day's work is done; practitioners in the courts know such is not the fact. As for the lawyers they too have a great deal of labor to perform; if in active practice much of their time must be spent in the courts, or in conferences with their clients, and the needful study in the preparation of their causes must necessarily be done elsewhere than in their offices when constant interruptions break the steady current of thought; no sweeping charge can be brought against the lawyers of doing less than their fair share of work.

The fault is rather in the system than in individuals, and has been of gradual growth. The calendars by a faulty system of arrangement, by the cumbrous methods of disposing of cases, and the facility allowed in obtaining postponements, have been allowed to grow too heavy, and the evil complained of is daily increasing. We may need some little addition to the present judicial force, but, even without extra judges, we are satisfied a remedy exists.

Various expedients have been devised from time to time with only partial success. The referee system has been tried, but found too tedious and expensive; cases are spun out to great length, and large bills of costs incurred. Besides, many abuses have erept into the system, impairing its value as a relief to the

courts.

The last, and so far the best, experiment has been in the making up of what is commonly called the "railroad calendar," which needs no explanation to our professional readers; but even this is beginning to be of small practical value. In the supreme court this calendar is called but once in each week, and in the other courts twice each term. The accumulated causes, sometimes amounting to a large number, are all placed upon this calendar for one day, producing an inevitable result. Those whose cases are not near the head do not get ready for trial, assuming, as they fairly may, that the parties in the earlier causes will be ready and consume all the time of the court. There being but one day set apart for this calendar few causes can be disposed of, and it generally happens that, apart from inquests, not more than one or two cases are tried. Moreover, by reason of the ease with which causes may be postponed, growing out of the laxity of practice, it is now a fact that cases on the railroad calendar drag along for weeks and months before being finally tried. Another defect in this, as a system of relief, is found in the shortness of the time allowed for a trial. One hour is too little. Few con

tested cases, in which witnesses are to be examined and questions of fact presented to a jury, can be disposed of within that limit. Even if they could be it is a not uncommon expedient among lawyers of a certain class, when their cases have been placed on this calendar, needlessly to protract a trial, so as to consume over the hour and throw the cause to the foot of the calendar, to the great expense, inconvenience and delay of the plaintiff. By frivolous objections, tedious arguments and extended examinations upon immaterial points this is not difficult for an unscrupulous advocate "fighting for time," and the judges do not seem made of stern enough stuff to repress the practice. As the law stands now it can be done without incurring any penalty, except, perhaps, the contempt of the judge and of right-minded lawyers. For this, any man who will resort to such a practice cares but little, so long as he carries his point and his client pays him liberally. Of course no honorable attorney would resort to such disreputable conduct, but the fact may as well be faced, that at the bar in the great city, there are some lawyers not above such "tricks;" it may often happen that the honorable lawyer finds himself pitted against the "shyster," and is no match for him in his peculiar style of warfare.

There is little utility of complaining of evils unless we are prepared to suggest some practical remedy. We think there is a remedy for this evil, and one of easy application. We will throw out a few hints for consideration, trusting, if they are deemed of value, they will be incorporated in some legislation, to be passed upon by the next legislature.

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Let a law be passed, providing, in substance, that all causes arising on contract, which either party will swear can be tried within two hours, or in which defenses have been interposed for delay, be placed upon a special calendar, this calendar to be taken up in one part of each court, and the causes on it disposed of in their numerical order, where not specially preferred by existing statutes. We will thus have a court constantly sitting for the trial of these causes. In order to strengthen the hands of the judges, the law should provide that no cause, after reaching the day calendar, should be postponed, unless for good cause, shown by affidavit; that, where more than two hours are actually consumed, the judge should have power to strike the cause from the special calendar; and, most important of all, where the trial has been manifestly protracted (as is too often the case now), by the defendant's counsel, so as to make it consume more than the two hours, the court should have power to impose costs upon the defendant, and enforce payment of the same by proceedings as for contempt.

With such a court, sitting day after day, and holding a strict rein, an immense number of causes could be disposed of annually, and cases would be better tried than at present. The general calendar of the

court would be greatly relieved, litigants get their rights without delay, and dilatory defenses cease to be interposed. If the present force of judges is not sufficient, let it be increased. We feel satisfied that tax payers would not complain of a few more salaries where such beneficial results would be secured. The scandal which now attaches to the New York courts, by reason of the "law's delay," would soon be removed.

A large majority of cases arising upon promissory notes or simple contracts could unquestionably be tried within the time we have fixed, provided the judges would confine the testimony to the questions at issue, and require celerity from counsel. As matter of calculation, we will assume that there are nine terms of each court, sitting for four weeks each term, and excluding Saturdays. This will give us nearly five hundred working days, and we can safely say that at least five causes could be disposed of on an average, which would give us about twenty-five hundred annually, at which rate present arrearages would be soon worked off, and new issues reached for trial within a few weeks. We do not mean that the judge should sit for ten hours; professional readers will understand that we contemplate many cases being tried in less than the prescribed time, and others disposed of by settlement, inquest or dismissal.

The matter is well worthy of consideration, and if this scheme be regarded as impracticable, let some better plan be devised.

EXTRADITION OF CRIMINALS-THE VOGT

CASE.

In the closing number of volume five, the Law JOURNAL took occasion to discuss the general subject of the "extradition of criminals," and particularly the Vogt case, which had then been recently decided in the superior court of New York city. That decision being averse to the right of the governor of New York to surrender a criminal under the law of 1822, the case was appealed, and finally reached the court of appeals, where it was recently decided, and the unconstitutionality of the act of 1822 affirmed. This statute provides that the governor may, in his discretion, deliver over to justice any person found within the State who shall be charged with having committed, without the jurisdiction of the United States, any crime except treason, which, by the laws of this State, if committed therein, is punishable by death or by imprisonment. Vogt, the criminal whose rendition was demanded, was concededly within the provisions of this statute, and his delivery was duly required, in accordance with the terms of the statute, by the authorized officer of the Belgian government, within whose limits the crime was committed. The LAW JOURNAL, at that time, could see no plausible or constitutional, or even strictly legal reason why the State

law should not be held valid and the action of the governor, in accordance therewith, sustained; and, after a thorough and elaborate examination of all the authorities, elementary, constitutional and judicial, we came to the conclusion that the precise point under consideration had never been decided in this country, and that, in the absence of any treaty between the United States government and the government of Belgium, the States had the right to make such regulations, in pursuance of the police power, as would result in the extradition of criminals. The court of appeals, Peckham, J., dissenting, have arrived at a different conclusion. Church, Ch. J., in delivering the opinion of the court, places this decision mainly upon the authority of Holmes v. Jamison, 14 Pet. 540, in which Chief Justice Taney and others, of a divided court, expressed the view that the governor of a State, virtute officii (and without any legislative enactment), had not the power to surrender a criminal to a foreign government on demand, and that the general government had exclusive power over the extradition of criminals. But it must be remembered that the Holmes case was dismissed, and that these remarks of the judges of the supreme court of the United States were mere dicta. Chief Justice Church in the Vogt case, however, accepts the authority of the Holmes case, and asserts that the former is a much stronger case for holding the act of the governor invalid than the latter. But an examination of Holmes' case shows that the supreme court of Vermont, in their final decision, while nominally following the dicta of Chief Justice Taney, really decide simply that a governor of a State, by virtue of his official position, has no right to arrest and remove a criminal from the State any more than a court, without special statutory jurisdiction, has this right. All that was said and considered in the Holmes case, relative to the course of the governor being in violation of the United States constitution, was unnecessary if not irrelevant, as were the remarks of Chief Justice Taney, and Judges Story, McLean and Wayne, on the general power of a State by statute or otherwise, to order criminals out of their domain and put them in the hands of a foreign government. The opinion of Chief Justice Church, in the Vogt case, follows in the line of the argument of Chief Justice Taney. The only consideration advanced by Chief Justice Church which sheds any new light upon the subject is the following, which may be termed the argument from results:

"It has been the policy of the government in later years to enter into extradition treaties with foreign nations; but the propriety of doing so in any particular case may depend upon a variety of circumstances known only to the officers of the government. We cannot determine nor judicially know but that the government, for reasons of public policy connected with its negotiations, may have declined to enter into such a treaty with Belgium, the demanding country, or that country may have itself refused to make such

a treaty without some undue stipulations on our part. Is it to be tolerated that a State may overrule the decision of the government, and thus embarrass its foreign negotiations, and for that purpose may the States receive and treat with foreign ministers? If one State may, all the States may make these arrangements, which arrangements may all differ from each other, and the same States may make different arrangements with each foreign nation. The embarrassment which such an exercise of power by the States would produce to the general government in its foreign policy is obvious. The general government might adopt the policy of refusing to make an extradition treaty with all nations, or it might refuse as to Belgium or any other particular country."

It is, of course, well known, that the general government has been in negotiations with Belgium, with reference to an extradition treaty, but that the negotiations failed for lack of reciprocity as to certain provisions which should be embraced in the treaty. But a reference to the negotiations shows, that the United States government was willing and did offer to do just what the State government was about to do by the execution of the law of 1822, viz., to deliver up criminals, without regard to nationality, committing crimes in Belgium and escaping to this country. On the question of "dormant powers," Chief Justice Church says:

The dormant powers are such as the States may exercise over their internal affairs without colliding with the action or nonaction of the general government. Such is the subject of bankruptcy. If the general government omits, as it may, to pass uniform laws relating to bankruptcies, it is competent for the States to enact laws on that subject. An omission by the government to act can be regarded in no sense as a decision that such laws should not be enacted by the States, and the action of the States contravenes no policy of the government. So of taxation, except where there is a prohibition on the States. So when the general government leaves the regulation of commerce, the States may take it up within their respective jurisdictions, and there are other powers which are concurrent until a collision occurs and then the government

is supreme. 11 Pet. 102; 5 Wheat. 1; 12 id. 213. But the dormant powers, as they are called, are those which may be exercised for the protection of the States within their territories and relate to their internal affairs. As to foreign intercourse and all questions relating thereto, the government alone can speak and act, and the power is, therefore, necessarily exclusive.

This appears very much like begging the whole question. To say that "the dormant powers" are those only "which may be exercised for the protection of the States within their territories and relate to their internal affairs," puts an end to the whole controversy and allows no further argument. Why would it not be just as logical, and far more for the public interest, to say as the chief justice does in regard to the "regulation of commerce" (only substituting the phrase "extradition of criminals "), that when the general government leaves the extradition of criminals the States may take it up within their

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respective jurisdictions, and there are other powers which are concurrent until a collision occurs and then the government is supreme"? Of course, when the general government forms a convention or treaty with Belgium, a "collision" may occur and then the general government will be supreme.

On the question as to whether the law of 1822 is an agreement with a foreign power, the great objection is found in the fact that a foreign minister or government is made the recipient of the expelled criminal. No doubt is raised as to the right of a State to expel a criminal of the character of Vogt from its borders, but when the State government designates somebody into whose hands he shall be driven, the enactment becomes, by a mysterious process, an agreement, contract, arrangement, treaty. But it seems to us that the attorney-general put an exactly analogous case when he inquired: "If I take a penny to give a beggar, and subsequently change my mind and put it back in my pocket, have I violated a contract?" This matter of the surrender of criminals, under the State statute, is altogether optional. It simply gave the governor power to do what his official position did not number among its categories, and empowered him to deliver criminals to foreign ministers, or duly authorized officers, whenever he thought proper. But an agreement or treaty with Belgium necessitates two parties to the contract ab initio, in the constitutional and international sense; and nobody ever heard of an agreement or treaty between States or nations without a convention or a meeting of the representatives of the respective governments beforehand, to determine upon the terms of the agreement or the treaty. A treaty or agreement, again, is a matter of perfect obligation, and may be enforced by either party. But neither Belgium nor any foreign power can require the enforcement of the law of 1822. The State of New York alone, through its governor, may determine whether it shall put away its criminals, and into whose hands it may deliver them. But, so far as New York State is concerned, the court of appeals decision is final, unless the case goes to the supreme court of the United States. Nevertheless it is better to have the validity of the law of 1822 settled even in this way than that its constitutionality should remain longer in doubt.

The election of John G. Nicolay, of Missouri, to the marshalship of the United States supreme court, caused great surprise to the numerous aspirants for the position, but to none more than to the recent incumbent, Mr. Parsons, who indulged himself in the fond delusion that he had every thing "fixed" in favor of his friend, ex-Lieut.-Governor Kirk, of Ohio. But "the best-laid schemes o' mice an' men gang aft a-gley," and so Nicolay, the favorite of Judge Davis, went in by a vote of five to three.

CURRENT TOPICS.

A controversy is going on in the Illinois courts involving a question of unusual importance. The constitution of 1870 provided, "that railroads heretofore constructed or that may hereafter be constructed in this State are hereby declared public highways *** and the general assembly shall, from time to time, pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on the different railroads in this State." In pursuance of this provision the general assembly. declared that railroads should not charge as much for transporting freight for any distance as they did for transporting the same kind of freight a greater distance, and also established a maximum rate of charges for the transportation of passengers. The constitutionality of the first has been attacked by the Chicago and Alton Railroad Co., which claimed that, under its charter, it had the right to fix its freight tariff; that its charter was a contract, and that, therefore, the act was void under the constitution of the United States.

Judge Tipton, of the McLean county circuit, held the act valid. The provision regulating passenger rates was attacked by the Illinois Central Railroad Company on the same ground, and Judge Wood, of the Kankakee circuit, held the act void as impairing the obligation of a contract. The cases are, of course, distinguishable, as the legislature may have power to prevent unjust discrimination, while it may not have the right to control the rate of toll; but the same general principle is involved in both. The cases will probably be taken eventually to the supreme court of the United States, and we shall await a decision with much

interest.

Political and commercial economists have alike always conceded the utility of bankruptcy laws as a means to relieve unfortunate traders from the burden of obligations which they never could meet, and to secure an equitable division of their assets among creditors. But in this country we have been signally unfortunate in establishing a system which would stand the test of practical operation. In 1800, and again in 1841, bankruptcy laws were passed, but hardly had the machinery been put in motion when they were repealed. In 1867 the attempt was renewed with more success, but now a movement is on foot for another repeal. The present law has, no doubt, worked badly in many respects, but if our legislators are wise and avail themselves of the practical experience gained during the past five years, the defects can be readily discovered and remedied, and a law established which will do exact justice to both debtor and creditor. The most unpleasant part of our bankruptcy is the tediousness and expense of administering assets. Registers, marshals, deputy marshals, keepers, assignees and clerks, must each have his slice from the estate before a division can be

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