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authorized to take, hold and convey real and personal estate for the charitable purposes of said lodge, not exceeding the clear annual value of ten thousand dollars.

§ 2. The persons so first elected trustees shall be divided into three classes, as is now provided by the constitution for subordinate lodges by the grand lodge; and whenever the word "trustee" is mentioned in such constitution, it is hereby declared to be the "trustees" authorized by this act. One trustee shall thereafter, prior to the expiration of the terms of office of said trustees and their successors, be elected by said lodge by ballot; in the same manner and at the same time as the worthy chancellor thereof shall be elected, according to the constitution, by-laws and general laws, rules and regulations aforesaid, and a certificate of said election, under the hands of said officers and the seal of said lodge, if they have one, shall be made, and shall be evidence of said election and entitle said person so elected to act as trustee. Said lodge may at any regular convention fill any vacancy that may have occurred in said board of trustees, to be certifled in like manner and with like effect as at a regular election. The person so elected shall hold his office for and during the term of the trustee whose place he was elected to fill.

§ 3. If any person so elected trustee shall die, resign, withdraw or be suspended from said lodge, remove from the state or become insane, or otherwise incapacitated for performing the duties of said trust, his office as trustee shall therefore be deemed vacant, and said lodge may thereafter at any regular meeting fill such vacancy in the manner and with the effect stated in the last section.

$ 4. The trustees of any such lodge, and their successors, shall be and are hereby authorized to take, hold and convey, by and under the direction of said lodge, and for the use and benefit thereof, all the temporalties and property belonging thereto, whether consisting of real or personal estate, and whether the same shall have been given, granted or devised directly to such lodge, or to any person or persons for their use or in trust for them or their benefit, and also in their individual names, with the addition of their title of trustees aforesaid, to sue and be sued in all courts and places having jurisdiction, and to recover, hold and enjoy in trust, and subject as aforesaid, all the debts, demands, rights and privileges, and all Knights of Pythias' halls, with the appurtenances, and all other estate and property belonging to such lodges, in whatsoever manner the same may have been acquired, or in whose name soever the same may be held, as fully and amply as if the right or title thereto had originally been vested in said trustees; and also to purchase and hold, for the purposes and subject as aforesaid, other real and personal estate, and to demise, lease and improve the same; and such lodge shall have power to make rules and regulations, not inconsistent with the laws of this state nor contrary to the constitution or general regulations of the grand lodge of this state, for managing the temporal affairs of such lodge, and to dispose of its property and all other temporal concerns and revenue thereof; and the recording scribe and banker of such lodge, duly elected and installed according to the constitution and general regulations aforesaid, shall, for the time being, be ex officio the recording scribe and banker of said trustees.

§ 5. Nothing in this act contained shall be construed or taken to give to such trustees of any lodge the power to purchase, sell, convey or dispose of any property, real or personal, of such lodge, nor shall they have such power, except by and under the direction of such lodge, duly had at a stated or regular convention thereof, according to the constitution and general rules, laws and regulations aforesaid, and said trustees shall at all times obey and abide by the directions, orders and resolutions of said lodge, duly passed at any regular or stated convention thereof, according to and not contravening the constitution and laws of this state, or of the grand lodge of the Knights of Pythias, or of the lodge aforesaid; provided, that in case said lodge shall surrender its warrant to the grand lodge aforesaid, or shall be expelled or become extinct, according to the constitution and general rules, laws and regulations aforesaid, it shall be the duty of said trustees then in office, out of the

ever.

property aforesaid, to satisfy all just debts due from said lodge, and the residue of said property shall be transferred to the grand lodge aforesaid, and unless reclaimed by said lodge within three years after said transfer, in accordance with the constitution and general rules, laws and regulations aforesaid, the same, with the avails or increase thereof, shall be applied by said grand lodge for benevolent and charitable purposes, and for no other purpose what$6. No board of trustees for any lodge filing the certificate aforesaid shall be deemed to be dissolved for any neglect or omission to elect a trustee to fill any vacancy or vacancies that may occur or exist at any time in said board, but it shall and may be lawful for said lodge to fill such vacancy or vacancies at any regular convention thereafter to be held; and until a vacancy arising from the expiration of the term of office of a trustée is filled, as aforesaid, he shall continue to hold the said office and perform the duties thereof.

$7. This act shall be deemed a public act, and be benignly construed in all courts and places to effectuate the objects thereof.

$ 8. This act shall take effect immediately.

CHAP. 713.

AN ACT in relation to the Chronic Pauper Insane. PASSED April 25, 1871; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. The board of state commissioners of public charities are hereby authorized to hear and determine all applications which may be made to them in writing, by the county superintendents of the poor of the several counties of this state, for exemption from the operation of the tenth section of the act entitled "An act to authorize the establishment of a state asylum for the chronic insane, and for the better care of the insane poor,' to be known as "The Willard Asylum for the Insane," passed April eighth, eighteen hundred and sixty-five. And whenever said board on such application shall determine that the buildings and means employed to take care of the chronic pauper insane of such county are sufficient and proper for the time being for such purpose, and shall file the same in the office of the clerk of the county making such application, then and in that case, and until such determination shall be revoked as hereinafter mentioned and provided, the county superintendents of the poor of such county shall be relieved from sending the chronic pauper insane of such county to the Willard Asylum for the Insane, as now provided by law. Said board may at any time revoke such determination, but such revocation must be made in writing, and filed in the county clerk's office of the county making such application, and notice thereof given in writing to the county superintendents of the poor of such county, and upon the filing of the same the said county superintendents of the poor of such county shall from thenceforward be again subject to the provisions and operations of the said act.

$2. The board of state commissioners of public charities are hereby authorized and required, whenever they shall be satisfled that the provisions made for the chronic insane in any county poor-house is inadequate and unsuitable, to direct the superintendents of the poor of such county to remove the chronic insane of that county to the Willard Asylum for the Insane within ten days after receiving a written or printed notice to make such removal.

$ 3. This act shall take effect immediately.

CHAP. 874.

AN ACT authorizing the surrogates in the several counties to employ stenographers.

PASSED May 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. The surrogate of any county of this state may, in his discretion, employ a stenographer, who shall be skilled in the practice of his art, and who shall be sworn to the faithful discharge of his duties, and who shall be paid a reasonable compensation, to be certified by the surrogate as a part of the costs of the proceedings, and who shall, under the direction of such surrogate, take full stenographic notes of all proceedings in the court of said surrogate in which oral proofs shall be given, which notes shall be fairly transcribed, and, after being signed by the witnesses, deponent or affiant, shall be filed in the office of said surrogate. By consent of the parties to the proceedings in which said proof shall be taken and said surrogate, the signing of such record or proof by the witness, deponent or affiant may be waived, in which case such record, after being authenticated by the certificate of said stenographer, or of said surrogate, shall be deemed to be the record of any proofs or proceedings so taken, and this section shall apply to all cases where such oral proofs shall have been taken by a stenographer under the direction of said surrogate.

82. This act shall not apply to the surrogates' courts of the counties in this state now employing stenographers under any provision of law heretofore enacted.

§ 3. This act shall take effect immediately.

The Albany Law Journal.

ALBANY, JUNE 10, 1871.

THE ECCLESIASTICAL COURTS. Supposing that I had exhausted the humorous phases of the law, I have been for several months cultivating a spirit of dullness and heaviness that has evoked praise from our English legal cousins. But these transatlantic friends must not complain at my breaking out again, like the last words of the late Dr. Baxter, for, in this instance, their own peculiar laws and law reports furnish the occasion.

I know of no more humorous reading than the reports of the ecclesiastical cases, as given in the columns of the Law Journal reports by those facetious gentlemen, George Henry Cooper and George Callaghan, Esquires, barristers at law. We have nothing like them among ourselves, owing to the infidel separation of church from state, which prevails to some extent in this country. Let it not be understood, however, that we are without the blessings of ecclesiastical councils. We have them, but they are a law unto themselves, and our law courts are forced to get on as well as they can without the presence or countenance of the clergy. Perhaps our immunity is not to be regretted, for, of all the assemblies of mankind upon the face of the earth, from the earliest days down to the present time, the most reckless and unregardful of the laws of God and man is an assembly of clergymen. An assembly of women is conservative in comparison. Even a moot court of school boys has more regard for the rules of evidence. And for ingenious malice, tricky evasions and a cruel spirit of rivalry, I imagine that nothing on earth affords a parallel.

If I were

a clergyman, and should have to be tried for any imaginable offense, I should prefer a tribunal of the Camanches, or even the Sioux, to one composed of my fellows, for, the injustice inflicted by these Indian tribes would not be perpetrated under the forms and pretense of religious charity.

The recent advent of ritualism in the English church has given rise to considerable interference on the part of the ecclesiastical courts, and I am not sure but that it has demonstrated the utility of such institutions. It is certain that a court of law cannot be imposed on by such evasions as would succeed in a clerical court; and it is controlled by legal rules of evidence and interpretation. Consequently, those English clergymen who have lately gone into the millinery business, and have been evincing an undue fondness for the ways of the scarlet woman, are having a hard time of it before the lord high chancellor and those other lords who constitute the privy council, to say nothing of the clear and inexorable logic of Dr. Phillimore, dean of the court of arches.

The Reverend Alexander Heriot Mackonochie, clerk in holy orders in the church of England, and incumbent of the parish of St. Albans, seems to be a tough customer. He was charged by a round-head fellow, named John Martin, with having, during the prayer of consecration in the order of the administration of the holy communion, knelt or prostrated himself before the consecrated elements, and, also, with using lighted candles on the communion table during the celebration of the holy communion, when such candles were not needed for the purpose of giving light; also, with elevat

ing the paten and the cup above his head, with using incense, and with mixing water with the wine. The court below "monished" him in respect of all the enormities, save the kneeling and the candles, but declined to give costs. 37 L. J. R. (N. S.) Ec. Cas. 17. From the refusals to monish the puritan, Martin appealed to the privy council, mainly, it is to be suspected, on the question of costs. The report of the decision on appeal is full of good reading. 38 L. J. R. (N. S.) Ec. Cas. 1. The court held, first, that the priest is intended by the rubric to continue in one position during the prayer of consecration, and not to change from standing to kneeling, or vice versa; and that he is intended to stand, and not kneel. Second, that the candles, as a ceremony, are unlawful, having been abrogated. Thirdly, that the lighted candles are not ornaments, within the meaning of the rubric. Counsel struggled hard for the candles, claiming that they had been used ever since the year 1100, but the court held the doctrine of ancient lights inapplicable to the case. And their lordships, with due regard to the dignity of the law, advised her majesty that the clergyman should pay the round-head's costs.

One would suppose that the Reverend Alexander Heriot Mackonochie was now pretty stringently tied up, but, "for ways that dark and for tricks that are vain," this particular clergyman is "peculiar." He ceased to "elevate the elements above his head," but merely elevated them as high as his head; he put out the candles just before communion, still allowing them to stand; and, instead of kneeling, he bent one knee, occasionally touching the ground with it. The hardheaded Mr. Martin followed him up, and moved the privy council to enforce obedience to their monition. 39 L. J. R. (N. S.) Ec. Cas. 11. The ingenious reverend gentleman made a very pretty argument, in person, in his own defense, which deserves rehearsing, as to the kneeling, at least. He says: "It is defined in Bailey's Dictionary, 'to bear oneself upon the knees.' I maintain, as regards the charge of kneeling, that kneeling is a distinct posture. The body must rest upon the knees. It is true, Dr. Johnson gives a different definition, but all his four examples fall within Bailey's definition; 'to perform the act of genuflexion,' 'to bend the knee.' "When thou dost ask my blessing, I'll kneel down, And ask of thee forgiveness.'-King Lear. 'Ere I was risen from the place that shewed My duty, kneeling,' etc. — Ibid.

'A certain man kneeling down.' Matt. xvii, 14. 'At the name of Jesus every knee should bow.' Phil. ii, 10. Bowing the knee is a distinct act from kneeling. Bishop Taylor says, 'As soon as you are dressed, kneel down.' Guide to Devotion. In every instance, in the prayer book, 'kneeling' is used to express the going upon the knees. Two things are necessary to a kneeling, first, that the body should rest upon the knees; secondly, that it should be for an appreciable time." He did not claim that his genuflexions were the result of any weakness in the knees, but boldly said, "I bend the knee as an act of reverence." This, of course, put the matter beyond any doubt, and, in respect to the kneeling, the court held that his peculiar evasion left him but one leg to stand on in physics, and none at all in law, and monished him not to do so any more. In respect to the candles, they expressed their disapprobation of the trick, but held that the reverend blowerout was, technically, within the monition. As to the elevation of the elements, the same may be said, the court holding that the point was not properly before

the court, but declared that they should hold, if it ever became proper for them to do so, that "any elevation, as distinguished from the raising from the table," is unlawful. One would suppose that, having cornered him on the charge of kneeling, the court would have shown some respect for their own decrees by punishing the infringement, but this clerical flea was not so easily caught. He had, like the prudent man, foreseen the evil, and hidden himself behind an affidavit that "he had never intentionally or advisedly, in any respect, disobeyed or sanctioned any practices contrary to the provisions of the monition;" i. e., he supposed he had successfully evaded them. Their lordships thought themselves bound, as christian gentlemen and lawyers, to give the affiant the benefit of this christianlike and gentleman-like, if not lawyer-like, affidavit, and so declined to punish him further than “to mark their disapprobation of such a course of proceeding "— to wit, the kneeling-"by directing that he should pay the costs of the present application," which, after all, I dare say, is no light punishment in England. This ingenious clergyman, who thought to evade the decree of the court against kneeling by bending one knee only, should have remembered the fate of "Peeping Tom," of Coventry, that

"one low churl, compact of thankless earth, The fatal by-word of all years to come,"

who, when Lady Godiva was riding by, "clothed on with chastity," risked one eye at an augur hole, and whose

"eyes, before they had their will,

Were shriveled into darkness in his head,
And dropt before him."

But if he had possessed that acquaintance with the scriptures which I have (through the medium, in this instance, of Webster's Unabridged Dictionary) he would, on leaving the presence of this tyrannical court, have hurled at them this parting text: "And he kneeled down and cried, with a loud voice, Lord, lay not this sin to their charge." Acts, vii, 60.

But we have not yet done with this reverend caviler. In November, 1870, the privy council were invoked to punish him for fresh disobedience to the monition, in respect to prostration and elevating the paten and cup. It was alleged and admitted that he had removed the wafer bread from the paten, and elevated the bread, instead of the paten; and it appeared that the upper part of the cup was elevated above the head. The accused claimed that the elevation was accidental and unintentional; but, as he admitted that he had carefully scanned the monition with the determination to yield only a literal obedience to its precise letter, the court held that he must suffer for even a literal violation, on the principle that they that take the sword shall perish by the sword. The accused, also, having met with such bad fortune in his genuflexions, notified his curates that he intended thenceforth to bow without bending the knee, at that part of the prayer of consecration where he had formerly knelt, and so, instead of kneeling, he made a low bow, and remained in that position several seconds. This the court held to be an unlawful prostration of the body. He was amerced in costs, and suspended from office for three months, and thus left with nothing to hold up but his hands, and with full liberty to bow his head if he had any shame left.

In January, 1870, "the office of the judge was promoted"-whatever that may be-"by the bishop of Winchester against the Rev. Richard Hooker Edward

Wix, vicar of St. Michael and All Angels, Swanmore, in the Isle of Wight." The vicar was charged with ecclesiastical offenses, namely, with having caused two lighted candles to be held on either side of the priest, while reading the gospels, and with having lighted candles on the communion table, or on a ledge or shelf immediately above it, having the appearance of being affixed to and forming part of it, during the celebration of the holy communion, at times when they were not needed for light; also, with using incense, etc., etc. In respect to the first charge, the vicar admitted and defended the practice, but the court held it unlawful, and "monished" him. In regard to the second charge, Wix becomes a dangerous rival to Mackonochie, in the science of evasion, for, although he admits the lighted candles, yet, he says they were not on the communion table, on the ledge or shelf behind it, but on a separate table, called a re-table, not appearing to form a part of the communion table. I think, on the whole, he is rather superior to Mackonochie, for the latter had to put his candles out just before communion, but Wix defiantly kept his burning by means of the convenient re-table. But, it appearing in evidence that the retable was placed directly behind the holy table, and had a shelf or ledge, which looked like a mantel-piece over the holy table, the court held that this would not answer, and so Wix and his candles were put out. As to the incense, Wix claimed that the censing was done only during the interval between morning prayers and communion, accompanied by processions and tinkling of bells, and that the censing was not within the prohibition of the law, because it was not done during any service. But the court thought there was no sense in this argument; Wix might as well claim that a slice of ham is no part of a sandwich, because it is between two slices of bread; and he was monished against this practice also, and condemned to pay costs, which last probably incensed him most thoroughly. 39 L. J. R. (N. S.) Ec. Cas. 25.

In the same report, at page 23, is found the case of Elphinstone v. Purchas, in which the matters of vestments, mixing water with the wine, administering the bread in form of wafers, etc., were gravely and elaborately considered. The defendant did not appear, and so the plaintiff, who was a colonel in the army, had a clear field. After eleven pages of discussion and examination, Dr. Phillimore concludes that Mr. Purchas might wear all the regalia which he was acccused of wearing, except "a cope at morning or at evening prayer; also, with patches, called apparel; tippets of a circular form; stoles of any kind whatsoever, whether black, white or colored, and worn in any manner; dalmatics and maniples." The "biretta" or cap appeared to the doctor "as innocent an ornament as a hat or a wig, or as a velvet cap." Processions and incense were pronounced illegal. Blessing the candles was forbidden. So, as to announcing "a mortuary celebration for the repose of a sister," and interpolating a prayer for the rest of her soul. Wafers were not disapproved of, nor was mixing water with the wine, so long as it was not done at the time of the celebration. Placing on the holy table a veiled crucifix, and unveiling it and bowing, and doing reverence to it, was deemed objectionable. But flowers on the holy table were approved. It was held, for the sake of protestantism and good manners, that the priest must not turn his back on his people, except during proper prayers. It only remains to remark, that placing a figure of the infant Saviour, with two lilies on either

side, and a stuffed dove, in a flying attitude, over the credence and the holy table, respectively, was reprehended. All this occupies twenty-five double-columned pages of the report. But, on appeal, all the "eucharistic vestments," including the innocent "biretta," were held unlawful, and the clergy were restricted to the poverty of cope and surplice; the use of the mixed chalice and wafer bread was also pronounced illegal.

So much for rites and ceremonies. But, when we come to the efforts of the courts to keep the ritualists straight in doctrinal matters, we are lost in amaze. Take the case of Sheppard v. Bennett, for instance. 39 L. J. R. (N. S.) Ec. Cas. 68. The charge was, that the defendant inculcated the docrine of the visible presence of our Lord in the elements, and the adoration of the elements themselves. The language used was: "Who myself adore and teach the people to adore Christ, present in the sacrament, under the form of bread and wine, believing that under their veil is the sacred body and blood of my Lord and Saviour Jesus Christ." The language at first was, "to adore the consecrated elements, believing Christ to be in them," but this was corrected as above. The court held that this amended language does not necessarily imply a belief in the actual presence, and an adoration of the elements themselves. The words by which it is preceded, however, would seem to render this judgment extremely charitable, to say the least: "I am one of those who burn lighted candles at the altar in the day-time; who use incense at the holy sacrifice; who use the eucharistic vestments; who elevate the blessed sacrament."

If, after believing and doing so much, he does not believe what he is accused of, he must be remarkable. If a man should tell us, "I am copper-colored; I go nearly bare and paint my body, and wear rings in my lips and nose; I live in a wigwam; I sail in a birchbark canoe; my weapons are bow and arrow, knife and club; I am in the habit of scalping my enemies, and of getting intoxicated on whisky; but I am not an Indian," the natural inquiry would be, What are you, then? And if you should believe him, for the reason that a great many other Indian disclaimants had told you the same story, you would use exactly the reasoning that Dr. Phillimore uses to arrive at his conclusion, at the end of fifty-three pages of fine print, in double columns. Peter, the patron saint of all these credulous theologians, persisted in denying his Master, although his "speech bewrayed him." The learned Doctor hopes that nothing that he has said may yet further tend to "make this banquet prove

A sacrament of war, and not of love."

He says he does not sit "as a critic of style, or an arbiter of taste, or a censor of logic," and has "not to try Mr. Bennett for careless language, for feeble reasoning, or superficial knowledge." And he concludes that Bennett is saved from harm by the fact, that, in sentencing him, he should be passing sentence "upon a long roll of illustrious divines who have adorned our universities and fought the good fight of our church, from Ridley to Keble; from the divine whose martyrdom the cross at Oxford commemorates, to the divine in whose honor that university has just founded her last college." And he showed his leniency toward freedom of religious freedom by making no order as to costs. I must do the doctor the justice to say that he does not seem to regret his enforced decision, and even cites the decision of the privy council, that the words

"everlasting fire" might be treated by a clergyman as not denoting the eternity of punishment.

But the humor of the matter consists in the necessity of having a court to adjudge what religious opinions a man may or may not teach, and what rites and ceremonies he may or may not observe. Of course, it is the theory of government that renders this necessary, but the humor of it is none the less apparent on that account. If our clergymen take leave of their senses, we soon find a way to restore their wits - we cut off their temporal supplies. If we disagree with our clergyman, we don't let him turn us out - we turn him out. Our theory is that the clergy and the Sabbath are made for man, not man for the clergy and the Sabbath. All judicial inquiries into one's religious opinions and ceremonial preferences strike us oddly. We do not see, of course, why the lord high chancellor should not be just as well invoked, at the complaint of the royal geographical society, to monish a man against saying and publishing that the world is flat, or, at the instance of Mr. Froude, to warn a rival historian against pretending that Henry VIII was not a conjugal saint. In short, affairs proceed in this country upon the principle of the menagerie-keeper, who, when asked whether a certain animal was a monkey or a baboon, replied: "Whichever you please-you pays your money, and you takes your choice."

IRVING BROWNE.

LEGAL REPORTING AND JUDICIAL LEGISLATION (CONCLUDED).

It is somewhat difficult to indicate exactly what actual force the courts now allow to a case in whatever court decided. A late lord chancellor, in a speech in the house of lords, said it was now impossible to say whether a case would be followed or not; and this we all know as a matter of daily experience. A learned writer says, that unless three vice-chancellors have concurred in any view of the law it would be unsafe to rely on it. Observations have often been made at Westminster to the effect, that when the lower courts, or primary courts, have followed some original erroneous judgments of one of their number, nothing but the higher authority can get them out of the wrong groove and set the matter right. Further, even when the appeal court has spoken, it is not unusual to find some lower court dissatisfied with such decision, seeking out some immaterial accident in a case to differ it from the appeal case, and by riding off on such variation, avoiding the judgment of the higher court, and thus really elevating such accidental variation into the dignity of a matter of principle; and this the more especially it does if it can find an earlier case in its favor, agreeing in this variation with that before it. Then come probably a string of cases in the lower courts following suit, though sometimes reluctantly, till the exception becomes well acknowledged, if not perhaps finally allowed. Next, the matter re-appears before an appeal court; and then it may be that such court may produce so formidable an array of obiter dicta and judicial doubts against the exception, that relying on its superior authority it may annul the exception; or it may be that the exception is confirmed - but it is impossible to foretell the result of such appeal. Sometimes exception after exception is introduced by the lower courts to some principle laid down of old or by the appeal courts; and, without being confirmed by a string of subsequent decisions or by the superior courts, these exceptions are thus able to

sap such principles, and when the subject-matter again comes before the appeal court they must all be considered, and will often be taken by their number alone to have overruled the original doctrine. But, perhaps, one of the most curious cases is, when some decision of one of the inferior courts is rather unsatisfactory in point of reason. Then we may see some learned judge expressing great doubts about its soundness, and saying that if the matter were new, he should not be inclined to decide according to it, but yet holding it not so clearly unreasonable but that he ought to follow it. Another judge, also expressing doubts about the original decision, is again unable, though fortified by the doubts of his predecessor, to consider himself authorized to reverse it, so weak are his doubts. And so of the next and the next judge, till at last comes that bold court which terminates a diminishing series of doubts by unhesitatingly reversing the original decision and all that have followed it. Or we may find what is equally strange, that, notwithstanding its admitted unreasonableness, and notwithstanding also the institution of appeal courts for the express purpose of reviewing the judgments of the inferior courts, the jejune and hasty decision of one of such latter courts is allowed to rule all the other courts of the land, and to imbed some crude and indigested anomaly in our law. One other effect of the practice may be noticed, and that is, that the sort of authority attaching to the decision of an inferior court, when not sufficient to settle the law, is often of force enough to fetter the judgment of another court of the same rank, on the same question, and thus to throw upon a litigant who may ultimately turn out to be in the right the risk of appealing, and frequently a part of the costs of litigation, which he would otherwise not have to bear.

Under such a system it is not possible to say in whom the law-making power is reposed, or when exactly any thing may be taken for settled law; nor can it be said that the way in which something like settled law is arrived at is calculated to develop and apply the principles of the law, or any principle at all. To add to the perplexities of those desirous of searching out the law, the vast mass of reports which the practice has already heaped, and is daily heaping, up must all of them be studied for such a purpose, while it is almost impossible to make sure that this has been exhaustively done, more especially as obiter dicta and judicial doubts may have been uttered in cases not very nearly connected with the subject under investigation. And hence, also, it may happen that some principle, which is well settled in some old reports, and has deep roots and many fruits in the law, may be incidentally overlooked and overruled.

By these means has it come to pass that the judgemade law has tended more and more to become a disintegrated mass of legal facts, and, consequently, the courts and bar have inclined more and more to abstain from and discourage learned and logical discussion, and to rely upon the last case, wherever decided, or upon the balance of cases. As was lately said by Lord St. Leonards: "There is such a demand for the last authority, that now and then it is not the greatest lawyer, but the one who has read up the last cases, who proves the best advocate." And for these reasons, too, some of the most successful counsel are those who, when advising their clients, utter Delphic oracles, which must lead to the opinion of the court being taken, if they do not directly recommend such course, or who utter a positive opinion, but abstain from giving their reasons,

unless they find some case exactly in point. To argue a case upon principle, and advise accordingly, would be needlessly to risk their reputation on the cast of the judicial die, without any adequate compensation for the great labor involved in such process of investigation. But the other plan of advising they well know may safely be adopted in the present uncertain state of the law. We believe that such elaborate and closely reasoned opinions as distinguished former times, and not unfrequently helped to determine the law, are seldom delivered now.

This state of things is not creditable to our English jurisprudence. It disgusts those who seek for scientific accuracy or system in the law, and tends to degrade the profession of the law, from the position of a liberal profession into a mere money-getting, pettifogging trade, irksome but profitable. And as regards the public, it renders legal advice and litigation increasingly more necessary, and, at the same time, uncertain. What defenses, then, do the advocates of the present practice urge in its behalf? The main one we have heard is, that it tends to produce authoritative declarations of the law on the smallest details, and as soon as the changes in society demand them. Now, we have just seen how hard it is to determine in what degree, and at what times, the declarations may be deemed authoritative, and that, at any rate, it cannot be said that the law upon any point is now soon definitively settled. Indeed, so far from the authority and expedition of the law-making process being increased, we have, we think, shown that, even when the higher courts have spoken, their decisions are deprived of the finality which the grounds of their organization demand. And as to there being judicial decisions on as many, the smallest, details of the law as possible, it is then apparent that, however much such decisions may prejudice and embarrass the systematic settlement of the law, to the lawyer their only use can be as guides for argument, which he may follow, without incurring blame, though not with safety for his client. The question remains, whether a system which would authoritatively mark out the boundaries of principles, and leave the lawyer to exercise his judgment and common sense in applying these principles to questions far within such boundaries, would not be of more service to him, and also to his client, than this practice, which does not develop principles, much less settle them, but only furnishes him with such blind and fallible guides on questions of detail. But if such guides are really of any use, there could be no reason why the decisions of the lower courts should not be reported and employed in that way, though not for citation as authorities in the courts. The advantage of this plan would be that such guides would constantly be laid aside and forgotten, as the law-making decisions of the appeal courts finally settled the questions involved.

Further, we have shown that even if the decisions on details were all authoritative, yet that the very existence of reports of all such cases is a positive source of doubt; because, where a case has to be considered to which they do not apply, they hide and bury in their midst the principles of the law on which such case should be decided; and because, even in regard to a case to which they do expressly apply, it is almost impossible, from the excessive number of such reports which must exist under any scheme of reporting hitherto planned, to know whether the authorities have been exhaustively searched. And the lawyer must then often be in the same position as if there

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