apprehend," said Dugald Stewart, "so essential to a public speaker, as to be able to state clearly every step of those trains of thought by which he himself was led to the conclusions he wishes to establish." Especially is this true at the bar-the eloquence suited to which is of the calm and temperate kind, connected with close reasoning. Let the advocate take for his motto the advice of Quintillian, "To your expression be attentive; but about your matter be solicitous."

There was much wisdom in the remark of Sir William Jones, that "an elegant method of arranging the thoughts is powerful to persuade as well as to please." William Pitt, being asked how he acquired his talent for reply, answered at once that he owed it to the study of Aristotle's logic in early life, and the habit of applying its principles to all the discussions he met with in the works he read and the debates he witnessed. So it is said of Rufus Choate, "he was a thorough master of logic. He had studied it, not only in detail and immediate application of style and arrangement, but in its essence and origin."

The treatise best calculated to give the student an insight into the rules and principles of logic, is that by Dr. Whately. The book recommended for the exercitation of the reasoning faculties, is Chillingworth's "The Religion of Protestants a safe way to Salvation," which was written in answer to the arguments of an adversary, and which has for years been considered the most perfect specimen of logical argument. Locke, than whom there could not be a more competent authority, proposes "for the attainment of right reasoning, the constant reading of Chillingworth"; and Lord Mansfield pronounced it the "perfection of reasoning."

Law and logic are the immediate and foundation studies of the advocate, but they are not all. Besides these he must drink deep at the fountains of science, philosophy, history and belles-lettres. These are the handmaids of oratory. They enlarge and liberalize the mind, embellish the style and afford illustrations, ideas, arguments, phrases, words, and last though not least, intellectual enthusiasm. There are few occasions, indeed, on which an advocate will not derive assistance from a cultivated taste and extensive knowledge. Their illustrations, allusions and principles, woven in with the weightier matters of the law, will make a pattern which will not fail to please and interest--will throw around the dry and uninteresting legal principles a freshness and charm that will fix the attention and fascinate the hearer.

But perhaps the chief benefit to be derived from their study is the improvement they afford to style and language. Cicero remarked in the third book De Oratore, that "all elegance of language, though it receive a polish from the science of grammar, is yet augmented by the reading of orators and poets." From this source have all great orators drawn their copious and elegant diction and their polished and graceful style. Erskine is represented by an excellent authority as having spoken the finest and richest English ever spoken by an advocate. For two years prior to his call to the bar, he devoted himself exclusively to the study of literature, and probably no two years of his life were so profitably spent. In addition to his reading in prose he devoted himself with great 5

ardor to the study of Milton and Shakspeare. His biographers tell us that he committed a large part of the former to memory, and became so familiar with the latter "that he could almost like Porson have held conversations on all subjects for days together in the phrases of the great English dramatist." Here it was that he acquired that fine choice of words, that rich and varied imagery, that sense of harmony in the structure of his sentences, that boldness of thought and magnificence of expression for which he was afterwards so much distinguished. He could have drawn these things from no richer source. To use the words of Johnson, slightly varied, he who would excel in this noblest of arts must give his days and nights to the study of Milton and Shakspeare.

"Hither, as to a fountain,

Other suns repair, and in their urns
Draw golden light."

Lord Chatham read and reread Dr. Barrow's sermons until he knew many of them by heart, "for the purpose," as he himself said, “of acquiring copiousness of diction and an exact choice of words." William Pitt, his son, obtained his remarkable command of the English tongue from the same source, in connection with Shakspeare and the Bible; the latter he studied not only as a guide of life, but as the true "well of English undefiled." No wonder that his cotemporary, Fox, should have said of him, "he always has the right word in the right place."

William Pinkney has himself unlocked the secret of his intellectual affluence and elegant diction. He says that he made it a rule from his youth never to see a fine idea without committing it to memory. Rufus Choate, in speaking of this fact, said “the result was the most splendid and powerful English spoken style I ever heard." Choate pursued a plan equally commendable. During the greater portion of his life, he made it a practice to read aloud every day a page or more from some fine English author. This he did for the improvement of his expression. He was a most indefatigable student of words, and made the whole round of literature tributary to his vocabulary.

The following extract from the address of Lord Brougham to the University of Glasgow, will be a sufficient guide, with what has been already said, to the selection of those authors that will tend most to improve the style and diction: "The English writers who really unlock the rich sources of the language are those who flourished from the end of Elizabeth's to the end of Queen Anne's reign: who used a good Saxon dialect with ease, but correctness and perspicuity-learned in the ancient classics, but only enriching their mother tongue where the Attic could supply its defects-not overlaying it with a profuse pedantic coinage of words."

The great masters of oratory should be studied most carefully and diligently; Erskine, Burke, Pinkney, Webster, and above all, the legal orations of Cicero, are the best models for a young lawyer. Read Bolingbroke for specimens of the splendid and ornate; Fox and Pitt for the classical and argumentative; advantage may likewise be derived from the letters of Junius.

In pursuing these studies the motto must be mul

tum haud multa — much not many. No real advantage and improvment will be gained from a rambling, desultory course of reading. There is a whole sermon in that saying of Hobbes, of Malmesbury, “If I had read as many books as other persons, I should probably know as little." The wisest and the best informed teach us, both by counsel and example, to read a little and that well; to count not by the books we have read, but by the subjects we have exhausted. Swift said that the reason a certain university was a learned place was that most persons took some learning there and few brought any away with them, so it accumulated. Such is the effect of a proper course of reading, everything adds and nothing takes away.

We are not counseling an imitation of the men of one book, but the pursuit of one system. Choose those authors most suited to the object in view and know them.

The advocate should make choice of his book, Shakspeare, Milton, Bacon, Burke, Erskine, Bolingbroke, and make that his chief study. One stirling anthor to call my own, ever most conspicuous and most at hand, read, re-read, "marked and quoted," will do much to form the mind, to teach one to think, to give precision of expression, purity of taste, loftiness of views and fervency of spirit. No better selection can be made by the advocate than the works of Edmund Burke. "Among the characteristics of Lord Erskine's eloquence," observes one of his recent biographers, "the perpetual illustrations derived from the writings of Burke is very remarkable. In every one of the great state trials in which he was engaged he referred to the productions of that extraordinary person as to a text-book of political wisdom pounding, enforcing and justifying all the great and noble principles of freedom and of justice." "When I look," says Lord Erskine himself, "into my own mind and find its best lights and principles fed from that immense magazine of moral and political wisdom which he has left as an inheritance to mankind for their instruction, I feel myself repelled by an awful and grateful sensibility from petulantly approaching him." Take, then, the words of this sublime philosopher and orator, bind them up in one thick volume, on which write WISDOM in gold letters, and begin to read it through every New Year's day.

-ex

Another means of acquiring a command of language is translation, and it is commended alike by the precepts and example of the great masters. Two thousand years ago Cicero stocked his vocabulary by this plan, translating from the Greek into Latin. Chatham translated the orations of Demosthenes again and again into English. Mansfield declared that there was not one of the orations of Cicero that he had not translated more than once. Pitt pursued the same plan for ten years, and to this he ascribed his extraordinary command of language which enabled him to give every idea its most felicitous expression, and to pour out an unbroken stream of thought hour after hour without once hesitating for a word or recalling a phrase, or sinking for a moment into looseness or inaccuracy in the structure of a sentence, Choate was a most indefatigable translator. This exercise he persevered in daily, even in the midst of the most arduous business. Fiye minutes a day, if no more, he

would seize in the morning for this task. Tacitus was his favorite author. He attended chiefly to the multiplication of synonyms. For every word he translated he would rack his brain and search his books till he got five or six corresponding English words. This is the true way to translate when style and diction is the object. Turn the passage read into regular English sentences, aiming to give the idea with great exactness and to express it with idiomatic accuracy and ease. This plan of translating is infinitely better than the plan sometimes advised of taking some passage of classic English, getting the ideas from it and then expressing them in the best manner possible. In this latter method the author has already selected the most appropriate words, and if the student use the same words he will receive no profit, or if other words, it is prejudicial, as it accustoms one to use such as are less eligible. The student of advocacy cannot give two much attention to the culture of expression. Orators in every age have made it a specific study. Cicero says, "the proper concern of an orator, as I have already often said, is language of power and eloquence accommodated to the feelings and understanding of mankind." Language and its elements, words, are to be mastered by direct earnest labor. A speaker ought daily to exercise and air his vocabulary and add to and enrich it. The advocate does not want a diction gathered from the newspapers, caught from the air, common and unsuggestive; but one whose every word is full freighted with suggestion and association, with beauty and power. It is a rich and rare English that one ought to command, who is aiming to control a jury's ear.

We had intended to conclude the suggestions we purposed to make in the present number, but have written at such length that we are compelled to defer the subject of Elocution till the next number.

THE LAW OF REVIEW IN CRIMINAL CASES.*

The decision of the Court of Appeals in The People v. Joel B. Thompson (not reported)- an abstract of which was given in our last number-presents a phase of the situation of the law in such cases, which seems to demand some legislative action. The prisoner was indicted for murder in the first degree. His offense was the shooting and killing the murdered man, upon a sudden meeting in the open street. The defense was, attempted or apprehended bodily violence to the prisoner. The evidence was conflicting and directly contradictory. If the witnesses upon the one side were to be believed, the prisoner had shot the deceased upon the instant of meeting, and without provocation. The testimony on the other side went to show that the fatal shot was fired, after a threat of violence and a blow given to the prisoner. The Court of Appeals had previously decided that murder in the second degree could only be committed while the perpetrator was engaged in the commission of a felony other than arson in the first degree. (Fitzgerold v. The People, 37 N. Y. 413.) Hence the homicide committed by the prisoner was murder in the first degree,

This article was written and in type before the publication of Governor Hoffman's Message containing a suggestion on the same subject. ED. L. J.

manslaughter or justifiable. The court, however, acting either in ignorance or misapprehension of the case of Fitzgerold v. The People, charged the jury (1 Albany Law Journal, 20) “that they might convict the defendant of murder in the second degree if they found that his intent to effect death was less deliberate and atrocious than was requisite to justify a conviction in the first degree." To this portion of the charge the counsel for the prisoner neglected to take an exception.

The General Term of the third district, on the cause being brought up by writ of error, reversed the verdict and ordered a new trial. The People carried the case to the Court of Appeals, where the judgment of the General Term was reversed, and the verdict of the jury sustained, not upon the ground that it was not erroneous, but that the prisoner's counsel had failed to take proper exceptions to the charge of the court on the trial. Thus the law is settled that where the indictment will sustain the verdict, no matter how erroneous that verdict may be, there is no power in the courts to relieve from the error of the jury, if the counsel who have charge of the defense neglect to take the proper exceptions. In the case under consideration, the highest court in the State admits and affirms that the prisoner never committed the crime of murder in the second degree, yet finds every court before which the cause can be considered powerless to shield him from the punishment imposed upon him. Though this may be the law of the land, is it not clear that here is a wrong for which there should be found a remedy?

The decision of the General Term of the third district in McCann v. The People (6 Park. 629), though practically overruled by the Court of Appeals in the Thompson case, is certainly more consonant with justice. There the court held, that, "when a person is convicted, upon undisputed evidence, of a capital offense, and an indispensable element to constitute such crime is wanting, there being no proof in the case of its existence, the Supreme Court will reverse on writ of error, although no valid exception was taken to any decision made at the trial, or to the charge of the court." But this is no longer the law. It may be said that it is no injustice that counsel should lose their cause in court if they fail to properly prepare themselves for its presentation, or to avail themselves of their preparation. In consequence, their clients suffer punishment not for crime committed by themselves, but for the ignorance of licensed practitioners. But the case may arise, and indeed has arisen, where the learning and experience of counsel can afford no shield against a similar wrong. The newspapers in the spring of 1869 reported the charge of the court to a jury in the city of New York, where the prisoner was on trial for murder, and the express charge was that in no event was the prisoner to be found guilty of murder in the second degree. (I think, but am not certain, that this was the case of Donati Migaldo, tried in February, 1869, at Oyer and Terminer, BARNARD, Ch. J). Nevertheless the jury found a verdict of guilty of murder in the second degree. It is evident that to this charge the prisoner's counsel could take no exception which would avail on review, for the charge was correct, and upon this point in the prisoner's favor. No court could set aside the verdict, and it only remained to carry it into effect, unfounded as

it was.

The Court of Appeals has decided (Duffy v. The People, 26 N. Y. 588) that it is the duty of the jury "to be governed by the instructions of the court as to all legal questions involved" in their verdicts, whether in criminal or in civil cases. But it is now the law, that if the jury exercise an arbitrary power in criminal actions, and disregard the instructions of the court, from the effect of their action there is no relief.

More tender of our property than of our lives and liberty, the legislature has provided (Code, ? 264) that the trial court may set aside a verdict and grant a new trial because of "insufficient evidence." This, though not an exception was taken on the trial.

It might be too startling an innovation upon the modes of trial now in vogue, to propose the abolition entirely of exceptions to a ruling upon the trial or to the charge of the court after the trial. Yet the exception is but a technical formality, more honored for its antiquity than for its usefulness. More than a hundred years ago, in his excellent commentaries, Sir William Blackstone informs us that "neither these demurrers to evidence, nor the bills of exceptions, are at present so much in use as formerly; since the more frequent extension of the discretionary powers of the court in granting a new trial, which is now very commonly had for the misdirection of the judge at nisi prius." If a question of evidence is presented for decision, the attention of the court will be sufficiently called to it by objection duly taken, and if carefully decided the court will not revoke its decision, because by the technical words of an exception, counsel give information of an intention to present that question on review if necessary. Still less is the conduct of the trial affected by exceptions to the charge, for the statute (3 R. S., 5th ed., 720, ? 139) allows such exceptions to be taken at any time "before the jury shall have delivered their verdict." Of course, the charge is never altered or the result affected by an exception taken after the jury have retired for deliberation. If it be deemed necessary to advise the opposing counsel of the questions intended to be raised on appeal or review, this may be done by filing or serving exceptions which on deliberation, and after the hurry and excitement incident to the trial of the cause, counsel may deem will be regarded well taken; not, however, allowing an exception to the erroneous admission of evidence received without objection.

To remedy the defects of the law as established by the decision in The People v. Thompson, it is only necessary for the legislature to extend to the criminal courts the power exercised by the civil courts to set aside a verdict "for insufficient evidence." And the writer deems it not unworthy of consideration, whether more good than harm might not result by extending the time within which exceptions may be taken to the charge of the court until a reasonable time after the rendition of the verdict. Where it is considered that the evidence on the trial oftentimes presents the case in a phase not anticipated, and not to be anticipated, and that the court, from its superior learning, introduces views of the law which have escaped the attention of the less learned lawyer, it will be admitted that much can be said in favor of extending the privilege of studying the case after the verdict and in view of the new light shed upon it, by the result and incidents of the trial.

CURRENT TOPICS.

It is devoutly to be hoped that the Legislature of this and other States will exhibit, during the winter session, a little more care and ability in legislation than some of their predecessors have heretofore exhibited. The statute books of every State in the Union are monuments "more durable than brass," of the carelessness and incompetency of many of the men elected to the office of legislators. Judge Edmonds, in the preface to the third volume of his "Statutes at Large" of the State of New York, cites some striking instances of legislative blunders. He refers to chapter 188 of the Laws of 1848, which is "An act to amend an act," etc., the first section of which amends the previous act, and the second section repeals it. Another instance is given of an act passed in 1813, repealed in 1819, and twice afterward amended. A most amusing instance of "absurd legislation" is to be found in chapter 415 of the Laws of 1863 of the State of New York. The act provides that a convict in the State prison may gain, by good behavior, an abridgment of a certain number of days per year of the term of his sentence. A proviso is solemnly tacked on at the end of the section to the effect that "the provisions of this act shall not affect the case of any person who shall be under sentence of imprisonment for the term of his natural life." Is it not about time that every man elected to the office of law-maker should have some knowledge of the actual condition and practical workings of the existing laws; of how law really acts upon the concerns of life, in all its relations; why it should be altered, and how the alteration should be effected without being forced to take all such matters upon trust? Our physicians dare not attempt to administer the simplest physic, our surgeons to perform the commonest operation on the human body, without having first learned the difference between diseased and healthy structure and function-without having seen and studied all its inward parts, devoting to the most secret and minute their profoundest attention; but our State physicians will administer the most potent medicines, our State surgeons perform the most capital operations, without having even affected to learn the plainest principles of State medicine, pathology or surgery, or devoted a single moment to dissection!

Chancellor Kent was an excellent judge, but a very poor prophet. If his life had been continued through the past decade, he would have retracted his prophecy that we should have too little law. In his day a comparatively small volume was sufficient to contain all the acts of a session of the Legislature, but in these latter days it requires two over-grown and bulky volumes. The fact is, we are too much governed. Every man elected to the Legislature holds it to be his bounden duty to act and enact. Whether action is necessary, is seldom considered. To get at least one bill through on some subject is held to be the "chief end" of a legislator; no matter how trivial, no matter how it affects private rights or relations; no matter whether or not there be the slightest need of the enactment; no matter how completely the existing laws accomplish the same purpose-only get a bill through. It is a relief to know that there is one man in office

that has recorded a protest against this perversion of law-making. Governor Hoffman, in his recent Message to the New York State Legislature, says: "This multiplying of laws is a serious evil, and in my judgment unnecessary." He recommends that the general laws be carefully examined, and so amended as to do away with the great majority of applications for special legislation. This is wise and well, but will hardly prove physic strong enough for the disease. The vice is inherent in representative democracies. Make the general laws broad enough to cover every subject, and special legislation will be almost as common. Every year our statute books are swelled by scores of special acts that are entirely covered by the general laws. Legislators newly elected believe that they will be blamed and ridiculed if they do not do something, and doing something means getting an act passed. The remedy rests chiefly with the Executive. Let him sternly set his face against all unnecessary legislation, and veto every special act the purpose of which can be accomplished by a general law, and the general laws will very soon be properly amended and extended, and legislators come to a healthier knowledge of the duties of a lawgiver.

The recent Congress of Lawyers in Germany suggests the necessity of a similar movement in this country. Although every State but one, and the General Government also, derive their fundamental law from one source, we doubt if there is more diverse legislation among the different nations of Europe than among our several States. And this not merely concerning matters of local application, but about such as need not be influenced by time, circumstances or place. The codes of law governing marriage and divorce are as numerous as the divisions of our territory, and conflict in their provisions one with all the rest. Some States favor marriage and almost prohibit divorce, some make marriage difficult and divorce easy, while others afford equal facility for both performances. Here, there should certainly be a uniformity in the law. Not less varied are the laws concerning the rights of married women. The usury laws differ one from another somewhat as the stars do. (We think they should be made uniform by repealing them altogether.) These are but single instances of an evil which the public to a certain extent comprehend, but which constantly embarasses the practicing lawyer. Most of the subjects of this conflicting legislation are exclusively under State jurisdiction. Left to themselves, the State Legislatures will not remedy this evil, but will rather increase it. The only way in which it can be met seems to be by the united action of the bar of the whole country. If a convention could be held similar in some respects to the German one, we believe that its suggestions in this direction would not only be listened to by our lawyers, but would be acted upon. Such a convention would be beneficial in other ways, both to the profession and the public.

The Hon. J. C. Churchill, Member of Congress from New York, has introduced in the House a bill reorganizing the United States Judicial Districts of New York, and creating a new district to be called the Middle District. It does not change the Eastern District.

The limits of the Southern District are confined to the city of New York and the counties of Dutchess, Orange, Ulster, Putnam, Sullivan, Rockland and Westchester. The Northern District is virtually abolished by the establishment of a Western District, to include the counties of Cayuga, Cortland and Broome, and all the counties lying west of them. The present officers of the Northern Districts are to be transferred to the Western. The residue of the State is constituted a new jurisdiction, to be called Middle District. Terms are provided to be held in the Western District at Auburn, Rochester, Canandaigua, Buffalo and Elmira, In the Middle District terms are provided to be held at Albany, Syracuse, Utica and Oswego, and at Ogdensburg and Plattsburg in alternate years. Some readjustment of districts is certainly necessary, and we presume that proposed by Judge Churchill is as good as any could be. It is certainly a great improvement on the present arrangement. The Northern District covers too broad an area, including, as it does, the entire State north and west of Columbia and Greene counties. The expenses to litigants and witnesses are made needlessly burdensome by reason of the great distance many of them are compelled to travel to attend court. The proposed changes will, in a measure, remedy this evil, and will facilitate the dispatch of business by adding a new District Court.

Corruption in office, as well as an ignorant performance of duties, sometimes results in far greater injury than the loss of character which necessarily happens to the guilty officer. We wonder if members of boards of supervisors of counties, and of common councils of cities, ever had the idea occur to them that the misappropriation by them of a single dollar invalidates the whole assessment which includes the misappropriated dollar. Yet such is the law as held in numerous decisions. As a necessary result, every tax title is void which is based upon such invalid assessment. Generally, by statute, the onus probandi is upon a party attacking a tax title, to show the facts which constitute the illegality. But persons who have taken pains to look behind the scenes know that in nearly every tax levied there is the taint which corrupts the whole if the requisite testimony could be found to reveal the truth. It seems to have become a general custom with county boards in secret session to vote themselves extra compensation, and to secure success in their operations they add an appropriation to the county treasurer, and the only record of their misdeeds is a "contingent account," the items of which are never exposed to the public. In one county in this State we are informed that there has been a wholesale indictment of the members of the board of supervisors for taking extra compensation. The surest remedy, however, and one which will be apt to astound speculators in lands sold for the non-payment of taxes, will be the exposure of the wrong in an action testing the right of a collector to collect the tax, or in resistance to the claimant under a tax sale.

of receivers in cases affecting monied and other corporations on ex parte applications." We see no propriety in making distinctions between corporations and individuals so far as relates to this matter. Injunctions are frequently sought in matters demanding the immediate interference of a court, and where the delay incident to a notice would defeat the remedy. Although, under the present law, the court has the undoubted right to grant the order on an ex parte application, yet in cases of importance or doubt, it usually provides for giving the defendant notice by means of an order to show cause. Such has been the practice for a half century or more, and with few exceptions, has worked well. That a few judges have departed from this rule, and have used the discretion vested in them in an arbitrary and unjust manner, is hardly ground for changing the law. If any change be made, it should extend no further than to require an order to show cause on granting an injunction ex parte. So far as relates to receivers, the necessity for a change of law is even less. The courts have held with great unanimity, that a receiver should be appointed without notice only in special cases demanding immediate action. In such cases it would certainly be a hardship to compel the applicant to take the risks and injuries that would flow from delay.

There is a prevailing opinion among members of the bar and the bench, as also in the laity, that a poor prisoner on trial for crime is absolutely entitled to have assigned to his defense counsel, whose services can thus be required without compensation. It is probable that the provision of the Constitution of the United States giving to a person accused of crime the right "to have the assistance of counsel for his defense," was intended merely to abrogate the old common law rule, under which the prisoner must conduct his own defense, until, in later times, counsel might "speak to matters of law." Such, in one case at Special Term of the New York Supreme Court, has been the construction given to the above clause of the Constitution. While, however, it is but right that a prisoner, in all cases, should have the assistance of counsel, it is also right that some compensation should be accorded for the services in his behalf. This might be effected if in each county there should be appointed, with a moderate salary, some officer charged with the duty of rendering such services, or if the courts at the close of the trial might make an order for the payment of a reasonable counsel fee for the defense. There are objections to these plans, but, it seems to us, not more weighty than to the present system. Some plan can certainly be devised to pecuniarily reward the assigned counsel, especially where his services are necessarily great, and his labors arduous.