Actions are authorized by public officers in matters growing out of their public duties in a great variety of cases, but the appointment or existence of public officers for the sole purpose of instituting legal proceedings in civil cases has no precedent in this state. It is, therefore, very clear that the excise boards authorized by the act of 1870 were intended to be substituted for those authorized by the act of 1857.

It has been suggested that prosecutions for penalties by county commissioners are not inconsistent with the act of 1870, for the reason that the power of granting licenses is specifically conferred upon the local boards by that act, while the power to prosecute for penalties is not, and therefore that this latter power may be exercised by the county commissioners.

This position is untenable. Both powers are specifically conferred. All the provisions of the act of 1857 relating to the appointment of county commissioners are, as we have seen, repealed. They are out of the act. There are no such officers, and no power to appoint any. The provisions of the act of 1870 relating to the appointment of local boards are substituted. All provisions of the act of 1857, not consistent with the act of 1870, are retained, and are as effectually and legally as much a part of the latter as if they had been copied into it and re-enacted. They are expressly made "a part of this act."

Striking from the act of 1857 the provisions in relation to the appointment of county commissioners and inserting those of the act of 1870 on the same subject, and reading the unrepealed portions of the act of 1857 in connection with such substitution, and the meaning is perfectly plain. Such unrepealed portions of the act of 1857 as designates "commissioners of excise," or "boards of commissioners of excise," would then refer and apply to the commissioners or boards authorized by the act of 1870.

The penalties in the act of 1857 are not repealed, nor is the 22d section of that act repealed. It reads as follows:

"The penalties imposed by this act, except the penalties provided by sections 8, 15, and 19, shall be sued for and recovered in the name of the board of commissioners of excise," etc.

What board? Manifestly the board authorized by the act of 1870, the provisions in relation to which occupy the place of the original provisions on that subject in the act of 1857. The difficulty on this subject has, I think, arisen from not properly blending the two statutes and reading them as one. The power to grant licenses is no more expressly conferred upon the new boards by the act of 1870 than the power to prosecute for penalties when both acts are consolidated and read together. The former might have been specifically conferred in the act of 1870 from a necessity expressly to restrict the jurisdiction of the local boards to the locality for which they are appointed, or to insert some modification of the terms or manner upon or in which licenses should be granted; or it might have been deemed appropriate to specify in terms the principal powers and duties of the officers therein authorized to be appointed. Whatever the object or necessity, or want of necessity, the construction of the two acts now in force, when united on this point, is not doubtful.

The new board having express authority to sue for penalties, it follows that the old boards have not.

These views are deemed appropriate in giving a construction to this statute, but are, perhaps, not necessarily essential to the question involved in these motions.

These actions were commenced before the passage of the act of 1870, and they were properly commenced in the name of the county commissioners, and there is nothing in the act of 1870 inconsistent with their combined prosecution in the name of the county board. The revised statutes, section 14, title 1, chapter 7, part 3, has provided for all such cases. It provides, in substance, that actions prosecuted by public officers shall not abate by their death or removal, but may be continued by their successors, who shall be substituted for that purpose by the court.

I have no doubt that the new boards of excise are the successors of the old boards, within the localities for which they are respectively appointed, within the meaning of the statute.

Until such substitution, the actions may proceed in the name of the original parties. 10 N. Y. 164; 2 Denio, 125. The order must be affirmed.

RECENT ACTS OF CONGRESS.

"AN ACT to provide for the better security of life on board of vessels propelled in whole or in part by steam, and for other purposes." Approved February 28, 1871.

This act is too extensive in its provisions to be abridged in full. It contains a comprehensive system of provisions requiring steam vessels to be licensed, and to be provided with fire-extinguishing apparatus; restricting the transportation of inflammable and explosive articles; requiring watchmen, boats, life-preservers, etc., to be provided; prescribing the powers, duties and proceedings of inspectors of steam vessels, etc. Various criminal penalties are imposed for violations of the act, and several former acts on the same subject are repealed.

"AN ACT relating to the records of the courts of the United States." Approved March 3, 1871. SECTION 1 provides, that whenever the record of any judgment or decree or other proceeding in the judicial courts of the United States is lost or destroyed, any person interested therein may, on showing that the loss, etc., was without fault and neglect of the person applying, obtain an order from such court authorizing the defect to be supplied by a duly certified copy of such original record, where the same can be obtained. Such certified copy shall thereafter have the same effect as the original would have had.

Section 2 provides for cases where a certified copy of the original cannot be furnished. It authorizes the court, upon proof of the substance of the record lost, by affidavit, in addition to other requisite facts, and upon notice to the parties adversely interested, to make and enter an order reciting what was the substance and effect of the lost or destroyed record. This order shall have the same effect, subject to intervening rights, which the original record would have had, so far as concerns the person applying for it and the persons who are served with notice.

Section 8 declares that in all cases which have been removed or shall hereafter be removed to the supreme court of the United States, a duly certified copy of the record of such case remaining in the supreme court may be filed in the court from which the cause is removed, on motion of any party or person claiming to be interested therein; and the copy so filled shall have the same effect as the original record would have had.

CORRESPONDENCE.

DOVER, DELAWARE, April 4, 1871.

Editor Albany Law Journal:

In the JOURNAL of the 25th ultimo, on page 238, I find this paragraph:

"A bill has passed the Delaware house of representatives, so to amend the state constitution as to abolish life tenures in offices; and it is rumored, at the state capital, that it is designed to displace Chief Justice Gilpin to make room for Willard Saulsbury, the late United States Senator."

This paragraph is calculated to make a false impression, and my object is simply to to correct or prevent that, so far as I can, through your columns. We, of Delaware, are a conservative people, not given to change, merely for the sake of a change, but adopting improvements only when we are well satisfied of their utility and propriety. And this is especially true in regard to constitutional and legal reforms.

Now, the amendment proposed never had the sanction of the bar, the bench, or the people, and as soon as their attention was called to it, by its passage in the house of representatives, without debate and without consideration, they spoke so decidedly and emphatically that it was defeated in the senate, and would have been in the house,

could an opportunity have been given to do so. And, further, so far from being a measure in the interest of ExSenator Saulsbury, his most intimate and constant friends were its most decided opponents. Had it been otherwise, its fate might have been different; but neither Senator Saulsbury nor his friends desire or need to change the constitution, in order to make places for them. They do not belong to a party holding such a political faith. The false and gratuitious suggestion originated with a local partisan paper, and the only thing that surprises me is, that it found a place in your usually accurate and judicious journal. Very truly, yours,

J. ALEXANDER FULTON.

SUP. CO. CAYUGA CO., RODGER, ASSIGNEE, ETC., IN BANKRUPTCY, v. VAN DUSEN AND OTHERS.

JORDAN, March 18, 1871.

Editor Law Journal, Albany, N. Y.: Dear Sir, - In your No. 10 we notice a communication and answer on page 200, in relation to the rights of assignees in bankruptcy to maintain action in the state courts against a creditor who has received property of the bankrupt in preference, etc.

The above cause was tried at special term before Judge Dwight of the Cayuga district, who held that such assignee had such right and could maintain his action. Cause tried September term, 1870. No appeal taken.

Yours, etc.,

W. & A. B. PORTER,
Plaintiffs' Attorneys.

BOOK NOTICES.

Reports of all the published Life and Accident Insurance Cases, determined in the American Courts prior to January, 1871, with notes of English cases, by Melville M. Bigelow, of the Boston bar. New York, Hurd & Houghton, 1871. 8 vo., pp. 793.

This plan of bringing together, in one volume, all the reported cases on life and accident insurance, is most excellent, and having been carried out in a careful and thorough manner, the book cannot fail to prove exceedingly useful.

All the cases on life and accident insurance decided and published in this country up to the beginning of the present year have been collected, the editor tells us, and reported herein. The cases are arranged chronologically by states, as in the "American Reports," and the page of the regular report where found is in each case indicated. Notes have been added to many of the cases, giving references to English decisions, and some of them are the result of considerable care and research.

Succeeding volumes are to be issued, and will "contain the subsequent American and English cases and a selection of the most valuable English decisions heretofore published."

The American Law Review. April. Boston.

Our able contemporary seems rather less readable this quarter than usual. The first article on "The North-eastern Fisheries," despite its title, is so dry that we have not been able to wade through it. The article on "Bar Association of New York," is written in a singularly stilted, inverted and sophomorical style. The digests are excellent, as usual. In the book notices, which are always elaborate, and generally fair and able, we detect in this issue rather more than usual of the assumption of superiority for Massachusetts, and of a despondent skepticism as to the existence of virtue or ability among any of the "rest of mankind;" a sort of dark-blue spirit of criticism, symbolized by the covers of our respectable contemporary. This unusual conceit is probably blown in upon the Review by the prevailing east winds. Our contemporary thinks highly of itself, as it is well warranted in doing; but we do not know that it is either important or interesting to be so frequently reminded of what "we have before said," with references to the precise number and page. Is a joke any more keenly

relished by the assurance that the joker has got it off before, with a statement of when and where? Would it not be well for our friends to take a reef in their rhetoric? Such a phrase as "the hideous spectacle of injunction piled upon injunction," is disheartening to us weekly journalists, who have no time to concoct such terrible verbal engines, and, besides, presents a picture of paper Pelions upon Ossas that is quite harrowing. We are glad to note, however, that residence in Boston does not secure immunity in the case of a notorious and shameless rascal, such as we infer the Hon. Isaac F. Redfield, LL.D., must be, if any faith is to be placed in our contemporary's notice of his work on "Wills." Seriously, we think the notice in question is quite indecent. There is no objection to a critic's stating, that, in his opinion, one author is indebted to another for his materials; but to insinuate that the predatory author has tried to convey the idea that the materials are his own, is a charge that ought not to be made except upon evidence, and certainly not when, as in the present instance, the critic admits that there really is no such evidence. With these few exceptions, we may say that the present number is a very good one; and we have no doubt that if the Review will have the candor to listen to criticism that is not echoed from the dome of the Massachusetts state-house, it will in time achieve the success which it deserves. Perge modo, formose puer.

LEGAL NEWS.

All of the Paris courts are closed.

The fund for the relief of the daughters of Chief Justice Taney will, it is said, reach the snug sum of $50,000.

At the recent election in Michigan, Hon. James V. Campbell was re-elected to the bench of the supreme court of that state.

Attorney-General Akerman has given opinions to Secretary Boutwell, in answer to inquiries as to the claims of southern loyalists, as follows:

The act of March 8, 1871, repeals the act of July 4, 1864, and the joint resolutions of June 18 and July 23, 1866, so far as Tennessee and the counties of Berkeley and Jefferson, state of Virginia, are concerned, and places that state and those counties upon the same footing, in respect to these claims, as other insurrectionary states.

The act of March 3, 1871, as to the matters under consideration, taking effect immediately, all such claims have been improperly submitted to the departments since the 3d day of March, 1871.

The additional question which your letter presents relates to a supposed distinction between property "taken" and property "furnished," as those words are used in the act of March 3, 1871. These words are not new in statutes upon this subject. They are found in the act of July 4, 1864, and also in the act of February 21, 1857. The difference intended by Congress between "taken and "furnished' seems to be this: that while both words signify such appropriations as were essentially involuntary on the part of the owners, there was an exertion of force in cases of taking which did not exist in cases of furnishing. The giving of receipts in the latter and the failure to give receipts in the former indicates, in the one case, a ready submission by the owner to the capture of his property, which is wanting in the other. Attorney-General Evarts construed these acts (of July 4, 1864, and February 21, 1867) not to comprehend accounts founded upon express contracts for the purchase of supplies for the army, made by the proper agent of the government, within the scope of the army appropriation acts. 12 Opins. 43. Following that opinion, which I believe to be sound, I think that none of the acts which I have cited forbids the payment of such accounts.

The claim of John T. Lee, to which your letter refers, is reported as a case of appropriation by the officers, and not of ordinary contract between the government agents and Mr. Lee. Hence I am of opinion that it falls within the scope of the act of March 3, 1871, and must go before the board of commissioners for which that act provides.

NEW YORK STATUTES AT LARGE.
CHAP. 68.

AN ACT to amend "An act for the incorporation of private and family cemeteries," passed April first, eighteen hundred and fifty-four.

PASSED MARCH 6, 1871.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. The act entitled "An act for the incorporation of private and family cemeteries," passed April first, eighteen hundred and fifty-four, is hereby amended by striking out section seven, and adding after section six of said act the following:

§ 7. It shall be lawful for any person to set apart or dedicate by deed, or to devise by will, land to be used exclusively for a family cemetery or burial place for the dead, to appoint trustees to manage the affairs of such cemetery, to direct and prescribe the manner of appointment of such successors in such trusteeship, to set apart and grant to such trustees and their successors personal property or money, to constitute a fund to be used, either the principal or the interest thereof, or both, for the purpose of improving, maintaining in good order and condition, and adorning such cemetery or burial place, subject to and in accordance with the directions of the grantor or testator in such deed or will; but the lands so set apart, dedicated or devised shall not in any case exceed the quanity limited by this act, nor shall the fund so set apart and granted as aforesaid by will exceed ten per cent of the clear value, in excess of the debts and liabilities other than legacies, of the estate of the testator; nor shall the land, property or money set apart and devoted by deed or otherwise under this act to the purposes of a cemetery, as in this and the subsequent section provided, be exempt from levy and sale under execution, except as now or hereafter exempt by law.

$8. The executors, administrators or trustees of the estate of any deceased person may, upon the written authorization and direction thereto of all the surviving heirs, legatees, devisees and next of kin of the testator or intestate, executed in person, or by their lawful attorneys or general guardians, set apart to be used exclusively as a family cemetery or burial place for the dead, suitable lands of the testator or intestate, or purchase with funds of the estate under their control suitable lands for such purpose, appoint trustees to manage the same, and direct and prescribe the manner of appointment of their successors, set apart and pay to the trustees so appointed by them, from the funds of the estate under their control, personal property or money, or both, of the value and to an amount limited in the authorization and direction aforesaid, to constitute a fund to be used, either the principal or the interest thereof, or both, for the purpose of improving, maintaining in good order and condition, and adorning such cemetery or burial place, subject to and in accordance with the rules and directions contained in the written authorization and direction aforesaid, but the quantity of land so set apart shall not exceed the limit prescribed in the foregoing section.

$ 9. The trustees appointed in accordance with the provisions of section seven, or of section eight, of this act, shall, before entering upon their duties as such trustees, file in the office of the clerk of the county in which the land set apart and dedicated for cemetery and burial purposes, under section seven or section eight of this act, is situated, their written acceptance of their appointment as such trustees, together with a copy of the deed or will or written authorization and direction under which their appointment shall have been made, and together with a certificate signed by all the trustees who shall accept and agree to serve, and acknowledged before an officer authorized to take the acknowledgment of deeds, containing a description of the land so set apart, the title of the corporation thus proposed to be organized under this act, and the names of the trustees thereof; thereupon the said trustees and their successors shall be deemed legally incorporated, with all the rights and powers and subject to the liabilities

of other corporations under this act; a certified copy of such certificate shall be evidence in all courts and places of the formation of such corporation. Said trustees, and all successors thereof, shall, before receiving the property, money and fund, as herein provided, for improving, main taining and adorning the cemetery under their charge, execute to the surrogate of the county in which it is situated a bond, with sureties, approved by the surrogate, in the penal sum of twice the principal sum of the fund placed in their charge, conditioned for the faithful preservation and application thereof, according to the rules, directions or bylaws prescribed in the instrument under which their appointment shall have been made, and from time to time renew their bond, or execute a new bond, whenever required so to do by said surrogate; they shall, also, at least once in each year, and oftener if required by the surrogate, file with him their account of receipts and expenditures on account of the fund in their hands, together with vouchers for all disbursements by them; they shall have the general care and management of the cemetery under their charge, subject to the rules and directions contained in the instrument or instruments by or under which their appointment shall have been made, and shall be subject to removal for neglect of duty or malfeasance in office, in the same manner as trustees of other corporations.

82. This act shall take effect immediately. (See 3 Stat. at Large, 754.)

CHAP. 77.

AN ACT to punish mortgagors of personal property who shall fraudulently sell, assign, exchange, secrete or otherwise dispose of personal property mortgaged by them.

PASSED March 8, 1871; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Any mortgagor of personal property who shall hereafter, with intent to defraud a mortgagee or purchaser of such property, sell, assign, exchange, secrete or otherwise dispose of any personal property upon which he shall have given or executed a mortgage, or any instrument intended to operate as a mortgage, which at the time is a lien thereon, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding three times the value of such property so sold, assigned, exchanged, secreted or otherwise disposed of, or by imprisonment in the county jail of the county in which such offense is committed, not exceeding one year, or by both such fine and imprisonment.

§ 2. This act shall take effect immediately.

СНАР. 171.

AN ACT in relation to assessment of highway labor in certain cases.

PASSED March 24, 1871; three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. In all cases where there is an incorporated village or city within the limits of any town, which is by law a separate road district, and there shall be any real estate, owned by any person or corporation, situated partly within the limits of such village or city and partly without said village or city, it shall be the duty of the assessors of such town, after fixing the valuation of the whole of such real estate as now by law required, to determine what proportion of such valuation is on account of that part of said real estate lying without the limits of said city or village, and designate the same upon their assessment list.

§ 2. The valuation of the real estate lying without the limits of any city or village, so fixed and determined by the assessor, shall be the valuation on which the commissioners of highways of towns shall assess highway labor against the owner or owners of such real estate; and in no case shall the commissioners of highways assess any highway labor on property situated within the limits of any incorporated city or village which is by law a separate road district. 83. This act shall take effect immediately.

CHAP. 486. AN ACT in relation to the qualifications of persons to be admitted to practice in the courts of this state as attorneys, solicitors and counselors.

PASSED April 13, 1871.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. It shall be the duty of the judges of the court of appeals, or a majority of them, within twenty days after the passage of this act, to establish such rules and regulations as they may deem proper, in relation to the admission of persons hereafter applying to be admitted as attorneys, solicitors and counselors in all the courts of this state, a copy of which said rules, within five days after the adoption thereof, shall be filed in the office of the secretary of state, and shall be published by him in the session laws of eighteen hundred and seventy-one; and he shall transmit a printed copy of such rules to the clerk of each of the counties of this state, and also to the chief justice of each of the general terms in this state.

$2. The rules established as above provided shall not be changed or amended, except by majority of the judges of the court of appeals.

$ 3. Every male citizen of the age of twenty-one years hereafter applying to be admitted to practice as attorney, solicitor or counselor in the courts of record of this state shall be examined by the justices of the supreme court, or a committee appointed by said court, at a general term thereof, and if such persons so applying shall be found to have complied with such rules and regulations as may be prescribed by the court of appeals, and shall be approved by said justices of the supreme court, for his good character and learning, the court shall direct an order to be entered by the clerk thereof, stating that such person has been so examined and found to possess the requisite qualifications required by the constitution, and the rules established by the court of appeals, and thereupon such person shall be entitled to practice as an attorney, solicitor and counselor in all the courts of record of this state until he shall be suspended from such practice for cause, as provided in sections eighty-one, eighty-two and eighty-three of part one, chapter five, title four of the revised statutes, entitled "of judicial officers." Nothing in this act contained shall be taken or construed to affect the provision of chapter two hundred and sixty-seven of the laws of eighteen hundred and fifty-nine, or chapter two hundred and two of the laws of eighteen hundred and sixty.

§ 4. This act shall take effect immediately. (See Laws 1847, chap. 280, 8 75.)

CHAP. 188.

AN ACT to amend chapter four hundred and two of the laws of eighteen hundred and fifty-four, being "An act for the better security of mechanics and others erecting buildings in the counties of Westchester, Oneida, Cortland, Broome, Putnam, Rockland, Orleans, Niagara, Livingston, Otsego, Lewis, Orange and Dutchess," passed April seventeenth, eighteen hundred and fifty-four.

PASSED March 27, 1871; three-fifths being present The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Section twenty of chapter four hundred and two of the laws of eighteen hundred and fifty-four, entitled "An act for the better security of mechanics and others erecting buildings in the counties of Westchester, Oneida, Cortland, Broome, Putnam, Rockland, Orleans, Niagara, Livingston, Otsego, Lewis, Orange and Dutchess," passed April seventeenth, eighteen hundred and fifty-four, is hereby amended so as to read as follows:

$ 20. Every lien created under the provisions of this act shall continue until the expiration of one year, unless sooner discharged by the court, or some legal act of the claimant in the proceedings; but if within such year proceedings are commenced under this act to enforce or foreclose such lien, then such len shall continue until judg

ment is rendered therein, and for one year thereafter. Such lien shall also continue during the pendency of any appeal, and for one year after the determination thereof. Where a judgment is rendered, as aforesaid, it may be docketed in any county of this state, and enforced as if obtained in an action in a court of record.

$2. This act shall take effect immediately. (See 4 Stat. at Large, 673; Laws 1869, p. 1355; 2 Albany Law J. 52.)

CHAP. 208.

AN ACT in relation to the duties and liabilities of sheriffs in certain cases.

PASSED March 29, 1871; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Whenever any person who may be indicted for any criminal offense shall be held by any sheriff upon or by virtue of any order, writ or process issued in any civil action or proceeding, the court in which such indictment may be pending may, upon habeas corpus, or by order, take such person out of the custody of such sheriff and make such disposition of the prisoner as such court shall see fit. And it shall be the duty of such sheriff to obey such writ or order and to make such disposition of such prisoner as the court may direct; and such disposition of such prisoner shall not be deemed an escape, and no suit, action or proceeding shall be allowed or maintained against such sheriff, for or by reason of his having obeyed any such writ or order. § 2. This act shall take effect immediately.

CHAP. 219.

AN ACT to provide redress for words imputing unchastity to a female.

PASSED March 29, 1871. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. An action may be maintained by a female, whether married or single, to recover damages for words hereafter spoken imputing unchastity to her, and it shall not be necessary to allege or prove special damages in order to maintain such action. In such actions a married woman may sue alone, and any recovery therein shall be her sole and separate property.

§ 2. This act shall take effect immediately. (See 2 Albany Law J. 490.)

CHAP. 245.

AN ACT relating to military exemptions.

Passed April 1, 1871; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Every general and staff officer, every field officer, and every commissioned and non-commissioned officer, musician and private, of the military forces of this state who enlisted or accepted office during any of the time from April seventeenth, eighteen hundred and fifty-four, to April twenty-ninth, eighteen hundred and sixty-five, and was or may be honorably discharged after serving for seven years, shall forever after, so long as he remains a citizen of this state, be exempt from jury duty, and from the payment of highway taxes, not exceeding six days in any one year; and every such person, now assessed for highway taxes, shall be entitled to a deduction in the assessment of his real and personal property to the amount of five hundred dollars each year; the exemption and deduction herein provided for to be allowed only on the production to the assessor or assessors of the town, ward or city, in which he resides, of a certificate of his honorable discharge after a service of seven years; and the same shall only be allowed during the time in which the books of the assessors are open for review and correction.

2. This act shall take effect immediately.

The Albany Law Journal.

ALBANY, MAY 20, 1871.

THE CONSTITUTIONAL GUARANTY OF JURY

TRIAL.

The unwritten body of fundamental law developed in English practice, and the written code, defining and enforcing individual rights, exemplified in each of our American constitutions, may be considered rival claimants to preference as methods of maintaining civil liberty. Each system is apparently good in its way, and each, when attentively compared with the other, appears to be embarrassed by defects and clothed with advantages peculiar to itself. They are chiefly distinguishable in this, that the former is not tied down to any particular form of expression, while the latter is all set forth in words of fixed and, of course, limited import. Justice and sound principle are eternal and unalterable. "Morality is the law of nature; God is its author; human reason is its interpreter; the maintenance of peace and order in civil society is its end and aim." To define in set phrases the obligations of morality or the methods of applying justice in all the ever-varying circumstances of human life is no easy task. The whole controversy between cautious conservatism and the eager spirit of law reform seems involved in the question whether it be at all practicable. Whether, as doubts arise, human reason shall continue to be the living interpreter of God's law as He hath given it to the heart of man, or the legislative clerk and the lexicographer shall be allowed to sit down together, and with such machinery, perfect or imperfect, as they may possess, to daguerreotype it once for all, so that we may have, thenceforth and forever, a clear and unmistakable written revelation to guide our actions, is one of the interesting inquiries which our great national prosperity affords us leisure to speculate upon. But it is not the design of this article to contrast the code and the common law, nor, indeed, is any comparison intended. The fact of a difference between the modes in which fundamental systems of law and government are established in our own land and in that of our ancestors is alone stated, and that for the single purpose of bringing into distinct relief one of its practical consequences.

The so-called British constitution has its place in thought and the memory, and for its embodiment is in no wise dependent upon words or phrases. Each intelligent and true-hearted Englishman, who loves his country and admires her institutions, well understands what in these is fundamental, while, perhaps, no two of that great race would define any particular legal rule or doctrine in precisely the same language. In this method there are advantages not attendant upon written constitutions. Principles, ascertained by a general review of the nation's growth and progress in civilization, alone guide the mind in determining whether a proposed act of the omnipotent parliament would militate against the ancient immemorially established rights of Englishmen; and it must be admitted, that in such an inquiry the public mind finds a highly invigorating employment of its highest powers. Reason and sound sentiment work together. The heart and the brain of the nation are beneficially exercised, and in the conclusion no merely technical point is resolved. The result often is the reënforcement of a

great moral or political principle which had been, to some extent or for some brief period, forgotten or overlooked; and thus an asserted safeguard is maintained against attempted denial, the public mind is enlightened, and additional strength is given to some of the barriers against injustice or oppression that had, perhaps, been weakened by disuse. See Creasy's Rise and Progress of the English Constitution, pp. 3, 4, 6. Not so in our country. Having reduced them to fixed formula, reflection is not required to perceive, memory to retain, or judgment to appreciate, our fundamental laws. Good eyes or a pair of spectacles are alone required. When a doubt is suggested, politicians, lawyers or judges simply respond ita lex scripta est. A slight amount of lexicographical knowledge suffices for the inquiry, and a very brief answer may suffice to settle the point in dispute. If the constitution which has been hurriedly inspected contains some technical terms, so much the worse, for in our hasty method of dealing with legal questions such terms are not unfrequently misunderstood. So it may be that written constitutions, however useful and desirable, do tend in practice to make us live by the letter, hastily adopt its supposed import for our guide in life, and give less than a proper measure of attention to principle.

This tendency is occasionally developed in our legislative and judicial action. It is a fundamental principle in England, that punishment or penalty shall not be inflicted in any form for a fault or crime, by means of testimony wrung from the accused party's own unwilling lips. Nemo tenetur seipsum accusare, is there a maxim; but the closest scrutiny can evolve from this maxim nothing but a general rule or principle. In most if not all American constitutions, this principle is not enunciated as a principle; nor is the citizen protected against its violation otherwise than by a narrowly expressed prohibition of some evil practice or practices familiarly known to us in the annals of former oppression. Some very great errors which have resulted from this circumstance may be profitably stated. The statutes against usury in England and in this state have always subjected the detected usurer to a loss of the whole sum lent. To force from him a revelation of his fault would, of course, be a manifest violation of the maxim. Whether he be a plaintiff or a defendant can make no difference in principle: whether the procedure be civil or criminal is a matter of form merely. Consequently, it was an established rule in English jurisprudence, that chancery, the only tribunal empowered to exact an oath from the party, could interpose no further than to relieve the borrower from extortion. It would not entertain his suit at all unless he consented to pay the whole sum borrowed by him, with lawful interest thereon. A proposal to modify this ancient usage, and compel the usurer to disclose his offense in such a way as to bring down upon himself any thing in the nature of a punishment or penalty, would not have been entertained in England: in that country it would have been at once pronounced a violation of the maxim, and rejected for that reason. But the legislature of New York, in 1837, without scruple or hesitation, abolished the exemption in toto, by enacting that the lender might be compelled to disclose the facts unconditionally. Laws of 1837, p. 486. Thus a moral rack was instituted, by which the borrower was enabled to swindle the lender. In Lovett v. Cowman, 6 Hill, 224, Judge Bronson intimated that this act might be unconstitutional, and justly condemned its policy. Chancellor Walworth had previously delivered a leading opinion in the court of errors affirming its validity, for a reason