In the next place, after the members of a court have heard, and together considered a number of causes, they come to possess an amount of knowledge common to them all, which is continually increasing, and which would in a few years embrace more or less minutely, most of the ordinary topics of the law. When a court thus furnished with an amount of knowledge common to all its members, should come to hear the argument of a case, prolonged discussion would not be necessary upon such topics; and, as Counsel would in most cases be aware of the general state of opinion in a permanent court, upon subjects which had been repeatedly discussed before the same persons, their labors would be greatly shortened. Under the present system, what a year ago might perhaps have been considered almost settled law, if it had then been presented for decision, may this year be wholly in doubt. A gain at the close of a year, the court, if i ot able to agree in the decision of a cause, as frequently happens, is compelled to order a re-argument, which must of necessity embrace the entire cause, while, if the case was to be reheard by the same judges, new argument would be requisite perhaps on but a single point; as this usually occurs in cases of difficulty and importance, a very considerable amount of time is thus necessarily lost. But the evil arising from delay is not greater than that which results from the want of stability in the court. Under our present organization, four judges are changed necessarily every year, and an additional one may be in each alternate year. The court has hitherto very strictly governed itself by those previous decisions, which in theory ought to control it; yet it is quite plain that, upon any question not falling exactly within any previous decision, the rule ultimately adopted may vary, as the case may happen to come up in September of one year or in the following January. For instance, a case if argued in September may be decided by the opinion of five judges, who are to go out of the court at the end of the year, against the opinion of three judges who are to remain, and yet it may be that all the five judges who are to come in on the succeeding first of January would concur in opinion with the three dissenting judges. In such a case, of course, the decision will depend on the set of judges by which the cause is heard. Upon the same principle, when previous decisions come to be applied to subsequent cases, if the court does not approve of the grounds of the former decision, it will not be followed any further than the court considers itself strictly bound by its very terms. A lawyer who is called upon to advise as to the propriety of an appeal, will, therefore, necessarily take into consideration what judges will probably compose the court when the case will be heard, and, to some extent, be governed in his advice, by the probabilities, favorable or unfavorable to his client, which he finds to exist. In the decisions of a court of last resort, certainty and steadiness are elements of the first importance, so that lawyers and courts of original jurisdiction may be able to judge what it will do in future cases, from considering what it has done in past cases, depending upon similar questions. No great degree of this desirable certainty can be obtained from a court which annually changes half its members; no amount of individual learning, candor, and ability, can resist the influence of such a system. A court of last resort is responsible to the legal profession and to the public, that the body of the law as it administers it, shall as a whole, work out justice; that it shall at least proceed upon rules general in their nature, the tendency of which shall be to produce justice in individual cases, although from the necessary generality of those rules, that result cannot, in all cases, be obtained. An erroneous decision may at first prove of small consequence; yet, when other decisions come to be made upon it, and it thus becomes framed (as it were) into the general system of the law, its evil consequences become both apparent and extended. It is to this test that all legal decisions are ultimately subjected, for, as to all of them, time and changing circumstanc s inevitably disclose whether they are founded upon principles which are just and sound. This ultimate judgment, formed from seeing how the rule works when it comes to be applied under novel circumstances, is as unerring in its character, as is the general judgment of a whole people, as to its own well being. The sense of this responsibility is one of the strongest motives, which operates both consciously and unconsciously upon persons in judicial office, to impel them to the exertion of their utmost ability and carefulness. This responsibility rests but lightly on those who remain in a court for a single year, and who are therefore in no way identified with its general success. Should it fail, on the whole, to administer satisfactory justice, the discredit would chiefly fall upon those more permanently connected with it Upon these fundamental grounds, we think the present organization of the court defective. We have prepared the draft of an amendment to the constitution, in which we have adhered to the general plan of the present constitution, in respect to the election of judges by the people for definite terms, and to the gradual change in the members of the court, by the expiration of their respective terms of office biennially The court, upon this plan, would consist of six judges, elected to serve only in the Court of Appeals. The term of office to be twelve years, one to go out of office every two years. The present elected members of the court to continue in office until the expiration of their present terms. Under such a system it is obvious that the court would gain in point of steadiness, and we think it would also in point of efficiency. In such a court, the members might be together for a considerable part of the year, (if their compensation were put upon an adequate footing,) and proceed in the hearing and decision of cases cotemporaneously. The advantages of immediate consultation among the judges, in respect to a cause which has been argued, are very obvious, and are well exemplified in the practice of the Supreme Court of the United States It very much shortens the time necessary to the examination of a case, if the judges are able in the outset, to ascertain exactly what point they are in doubt upon, and what questions they all are agreed about. No time is so well suited to this end as the close of the argument. We are satisfied that by such a court, proceeding in the manner spoken of, a much greater amount of business could be disposed of than the present court can decide: and that its ability to dispatch business would constantly increase as its members became thoroughly acquainted with each other's capacity and resources. We have likewise prepared an amendment extending the jurisdiction of the County Court, subject to the discretion of the legislature The County Court, a snow organized, is filled with efficient officers, to whom we think might be advantageously committed a large part of the smaller business which now clogs up and almost overwhelins the Supreme Court in most of the districts of the State. In respect to the compensation of the judges, we think that it is plainly inadequate. So far as we know, no judge living in a town of moderate size, is able to live within its amount with all the economy practicable for those who have no time to bestow on their own private and domestic affairs. We believe it to be poor economy in the State to fix the compensation of those who serve it in the most important public function, at a sum below the actual cost of their maintenance. We do not feel inclined to say all that may be said upon this topic. But we are sure that when the office of judge, however honorable in its character, ceases to be a legitimate object of professional ambition for the advantages which it confers, the day is not distant when it will cease to be occupied by those who are fitted, either by their learning, their go d their integrity, worthily to discharge its duties. sense, or ALEX. S. JOHNSON, Notices of New Publications. Boston: PRINCIPLES OF GOVERNMENT: OR, MEDITATIONS IN EXILE. BY WILLIAM pp. 460. In this modest duodecimo of less than five hundred pages, Mr. Smith O'Brien gives to the world the results of four years reflections in exile, upon human conduct and government It is a treatise nenher wholly theoretical, nor written solely from his experience; but is rather an attempt to combine and set forth the results of his previous theories and opinions as they have been modified by eighteen years' experience as a member of the House of Commons, and finally altered, corrected or confirmed by his solitary musings in Australia. His book is not remarkable for its striking or original views, or for any great novelty, freshness or power in the manner in which they are presented. The subjects treated are very various, and occupy a wide field, including all the great social and political questions of the day, as well as those which have at other times perplexed political theorists and legislators. The best form of government, the true principle of taxation, the proper basis of representation, the duty of the State towards education, the true connection between colonies and the mother country, and the political rights and duties of women, are among the matters discussed in its pages. After this imperfect catalogue, it is perhaps unnecessary to say, that the book contains no profound or exhausting examination of any s bject. It makes no pretensions to anything of this sort. It is not ambitious or dictatorial, but quiet and unassuming in its tone and manner. The style is pure and easy, and the reasoning, though not profound, direct and clear, and in these respects the book reminds us of Paley. Mr. O'Brien's opinions are by no means extreme. They are mildly conservative, and gently liberal, a republican graft upon a monarchist stock, and they are very far from what we in this country call dangerous. Indeed they can find but little sympathy, we imagine, with the large majority of the author's countrymen here. They are The American Notes are signed M., and dated New York. written, if we may venture to guess, by Mr. Thomas F Meagher, and were doubtless introduced for the benefit of Roman Catholic readers. They are not numerous, and they add but little to the value of the book. Those who are familiar with the great questions of the science of government, will find little pleasure or profit in Mr O'Brien's work But for those who have hardly thought at all upon the matters here treated of, it is a very useful and readable book. MINNESOTA AND DACOTAH, in Letters descriptive of a Tour through the Northwest in the Autumn of 1856, with information relative to Public Lands, and a Table of Statistics By C. C. ANDREWS, Counsellor at Law, Editor of the Official Opinions of the Attorneys-General of the United States. Washington: Robert Farnham. 1857. This unpretending volume will amply repay perusal by the professional and general reader. Its details are of great value, and its sound views will recommend themselves to all who read the book. The author was formerly a member of our bar, and for the period of time he was among us, had obtained an excellent share of reputation and success, especially by his defence of Bain for manslaughter, and his services as junior to Mr. Dana in the defence of Dempster. In the latter case the Attorney-General complimented his clear and able opening. We recommend to the legal reader the Chapter on the Minnesota Bar, as especially worthy his attention. The eyes of young men are naturally turned from the crowded bars of the older States to the new fields opening in our western countries. "My impression is," says Mr. Andrews, "that in point of skill and professional ability the Minnesota Bar is a little above the average of territorial bars. Here, as in the West generally, the practice is common for lawyers to mix with their profession considerable miscellaneous business, such as the buying and selling of land. The fees for professional services are liberal, being higher than in the East. Before an attorney can be admitted to practice, he must have an examination by or under the direction of one of the judges of the Supreme Court." The provisions of the Territorial Statutes are quite strict in their tendency to maintain upright practice. The opinion prevails almost universally in the East that a lawyer can do best in the West. In some respects he can; if he cannot do a good deal better, he is not compensated for going. I had the pleasure of a conversation last summer with one of the most eminent members of the New York bar, (Mr O'Conor,) on this very subject. It was his opinion that Western lawyers begin sooner to enjoy their reputation than the lawyers in the Eastern cities. This is true, and results from there being less competition in newer communities. 'A lawyer among us,' said Mr. O'Conor, · seldom acquires eminence till he begins to turn gray; nevertheless, there is no field so great and so certain in the long run in which one may become a really great lawyer as in some of our large commercial cities, whether of the East or the West. I will conclude by saying, that I regard Minnesota as a good field for an upright, industrious, and competent lawyer. For those of an opposite class, I have never yet heard of a very promising field.” . REPORTS OF CASES ARGUED AND DETERMINED IN THE COURT OF COMMON PLEAS FOR THE CITY AND COUNTY OF NEW YORK. With Notes, References, and an Index. By E. DELAFIELD SMITH, Counsellor at Law. Volume II. New York: Lewis & Blood. 1856. pp. 864. The Court of Common Pleas of the City and County of New York is the oldest tribunal in that State, we believe, and it has always maintained a high character. It has an extensive jurisdiction of much importance, not only original, but also on appeal from the decisions of the Marine and District Courts, as to matters of law, and it has concurrent original jurisdiction with the other courts, 10 an unlimited extent, in causes both at law and in equity, in which parties are served with process within the county. Many of the causes reported in this volume, of course, are founded upon special provisions of the code or on other statutes strictly local, and which would be of little interest out of New York; but there are many others, among which we may mention Vermilya v. Austin, p. 203, Taggart v. Roosevelt, p. 100, Shulenburg v. Wessels, p. 70, of more general interest, and all cases which are new or intricate, are discussed and decided with ability and research. Mr. Smith has maintained in this volume the character of an accomplished, diligent, and faithful editor, already acquired by his first volume, and we are glad to see that he promises us a third volume shortly. In view of the future, we may be allowed one or two criticisins, in matters chiefly of form. The volume is much too large, by reason whereof the binding of our copy has already began to break away from the book. There is too frequent use of italics; the emphatic parts of a sentence in a judge's opinion or a marginal note ought to be distinguishable by the professional reader without this aid. The marginal notes are very well written, but sometimes more extended than is necessary; the learned editor does not always content himself with giving in the note the substance of the decision of the court, but also annotates, as it seems to us, the preliminary reasonings which no doubt go to the foundation of the opinion, in the mind of the judge, but which form no part of the decision. This fulness of annotation undoubtedly has its advantages, among which is the production of a very copious index, but even here, if the heads are properly chosen, completeness may be reconciled with brevity. On the whole, the volume is a very good one, and very well edited. REPORTS OF CASES ARGUED AND DETERMINED IN THE ENGLISH COURTS OF COMMON LAW. With Tables of the Cases and Principal Matters. Edited by Hon. GEORGE SHARSWOOD. Vol. LXXXV. Philadelphia: T. & J. W. Johnson & Co. 1856. This volume of Messrs. Johnsons' excellent reprint, gives us in full the fifth volume of Ellis and Blackburn's Queen's Bench Reports, and with the advantage over the English edition of notes by Judge Sharswood, to say nothing of the diminution in price. The good effects of competition among reporters and publishers, in both countries, is shown by the fact that the cases here reported come down to Hilary Term, 1856. PRINCIPLES OF THE LAW OF REAL PROPERTY, INTENDED AS A FIRST BOOK FOR THE USE OF STUDENTS IN CONVEYANCING. By JOSHUA WILLIAMS, Esq., of Lincoln's Inn, Barrister at Law. Second American from the fourth English Edition. With Notes and References to American Decisions, by WILLIAM HENRY RAWLE, Author of "A Treatise on Covenants for Title." Philadelphia: T. & J. W. Johnson & Co. 1857. We are glad to see an annotated American reprint of this excellent little book. Intended as a practical introduction to conveyancing, it states clearly, simply, and with precision the present state of the law of real property. It has acquired a high reputation in England, and is the text book, in its branch, in the examination of candidates for honors and for the bar. It is hardly necessary to say that Mr. Rawle's notes are in excellent keeping with the work, and add greatly to its value. |