proper at one time, and unnecessary or wrong at another, then the task of writing a law book would be simply the work of recording these rules. But none of these conditions are possible. The Supreme Intelligence has not even attempted this in the laws He has given us. All law, human or divine, consists of principles. All these systems and laws, except treaties, constitutions and statutes, teach by precept and example. Constitutions, treaties and statutes may prescribe arbitrary rules. But these constitute only a comparatively small part of the law which defines rights and wrongs, which protects the former and punishes the latter. The common law, with its cognate principles of equity, admiralty, military and martial law, and the laws of nations, constitutes by far the most extensive, comprehensive, rational, instructive and useful portion of our entire systems. These rest on reason— these are "the perfection of reason." "Reason is the life of the law." "When the reason [of any law of these classes] ceases, the law itself ceases." These change to meet the wants, circumstances and conditions of society. These embody the spirit of progress. Like the activities of intellect and the history of man, these are ever onward.

II. The Requisites of a Good Treatise on Law.-Elsewhere I have stated what I regard as the essential requisites of a complete and perfect book on any branch of unwritten law."

'Co. Lit. 97 b; Bishop's First Book, 73; Coggs v. Bernard, 2 Ld. Raym. 909-911.

2 American Law Register, April, 1873, page 221. There is more necessity for commentaries in this country than in England, because of the number of our courts and jurisdictions, legislative and judicial. Commentaries in some sense operate as a supreme revisory tribunal, tending to secure uniformity by bringing together the legislative and judicial determinations of all the states, and by deducing from all a system based on the 1 gic of right reason. And this is more practicable than might at first be supposed. It seems a misfortune necessarily arising out of the nature of our state governments, that we have no overruling authority to revise and correct the errors and antinomies of our legislatures and judicial tribunals. On a few subjects, Congress and the United States Supreme Court have a jurisdiction to which the states must yield. On all others, each state is supreme within its own territory. The inconveniences of this situation are constantly apparent. The law

This would embrace the rise, history, adjudications on, changes of, and exceptions to, every rule or principle of law on a given subject, the reasons on which all rest, and the written law affecting them. It would be a philosophical,

of most of the states, being derived from England, is still, to a very great extent, the same as that of the mother country. We have, it is true, made essential changes in our forms of government, by adopting written constitutions to declare great principles and to regulate legislation, and by abolishing all titles of nobility and all hereditary rank, primogeniture, and the preference of males in descent. We have almost everywhere rendered divorce more easy, and improved, in many respects, the legal condition of married women. We have changed the fundamental rules of evidence of the common law, in many of the states, by rendering parties to suits, persons charged with crime, and those interested in the event of suits, competent witnesses. In regard to evidence, however, we move side by side with England.

There is a great similarity, frequently, almost, if not quite, identity, in the changes which the different states have made in the common law. On first thought one should suppose that thirty or forty legislatures constantly at work in modifying the law, and as many supreme courts every year making decisions affecting the old and new branches of jurisprudence, would render it a hopeless task, on many legal subjects, to write books which would be useful in every state. But a little reflection shows that the points of identity of the laws in most of the states are incomparably more numerous than the diversities. For instance, adultery, desertion, and cruelty are causes of divorce in most of the states; hence, what constitutes these offenses, and what is evidence of them, are the same or nearly the same, in the states where divorces are allowed on these grounds. Arson, larceny, burglary, forgery, etc, are crimes in every state. The changes in the law of bills of exchange, promissory notes, insurance, commercial contracts, and other contracts, effected by legislation and judicial decisions, are very small, compared with the great mass which remains unchanged.

The legislative divergencies of our states from the English law, whether they be considered progress or not, have, as already intimated, been generally in the same direction. It is certainly most desirable that the judicial decisions on the same questions should be uniform in all the states. Unfortunately there is too often a conflict in these decisions. As the intercourse between the states by land and water, already enormous, is constantly increasing, and the same man frequently not only has business in several states, but becomes successively a citizen of two or more, it is very desirable that his legal rights and duties in every state should be alike; so that, wherever he trades and wherever he goes, he may feel that the same law is extended over him and his property. It is

historical, bibliographical, critical and doctrinal discussion, going to the bottom of all logic and morals. But this would be impossible without devoting a life almost to each great topic of the law, and, when finished, it would be a literary thesaurus so voluminous as to be inapplicable to practical and popular wants.

III. The Classes of Books on Unwritten Law.-The books upon unwritten law are generally digests or elementary treatises. The former are valuable as mere indices pointing to where the law may be found, sometimes philosophically discussed. They are useful to a lawyer who understands the philosophy of the law, as indicating mere naked decisions or rules of law, generally without giving the reasons on which they rest. But the lawyer or judge who studies only these, or relies on them, is almost sure to be misled, just as all men must be, so, to a great extent. But a writer like Mr. Bishop, who carefully demonstrates the principles which cases establish, presenting them in a strong light, and at the same time compares conflicting decisions and points out, with a judgement rarely if ever mistaken, those which violate principle, is a great public benefactor.

In this country it is far easier to get erroneous decisions corrected than it is in England. There, the decisions of the highest court are regarded as authority settling the law, until they are overruled by the same court or the House of Lords. And a decision of the House of Lords is law in all courts. In this country the decision of one state court has no authority except in the state where it is given. Hence, if a case be decided in Ohio, it has no weight as authority in the courts of New York or Massachusetts. And in these latter states the reasons for the decision given by the court deserve no more attention than the arguments of counsel, or the reasons of a text writer for or against the decision. It is evident that an author like Mr. Bishop will do much to give currency all over the country to sound doctrines coming from any quarter, and at the same time to prevent false doctrines which are enforced in one state from infecting others. He is already an authority. He will become more so in future, as the profession recognizes more and more his thorough mastery of the subjects of which he treats. His researches will relieve judges and lawyers, in many cases, from the necessity of examining many reports, and thus save them from an infinity of labor.

It was said, in a recent Irish case, that the decisions of American courts are entitied to the weight to be accorded to the opinions of professors of the common law. Conroy v. Belfast and Nor. Co. Ry., 9 Irish Law Times Report, 220. [ED. S. L. R.]

who do not reason from legal principle. Without this no man can correctly apply mere naked rules or decisions.

The elementary treatises constitute a higher order of law books—that is, when properly written. But it is to be regretted that too many of the books which profess to be such, are after all mere digests-mere compilations arranged with more or less of system, but from which it is impossible to learn or apply law as a science-law as a system of reason governed, controlled, and often modified by circumstanceslaw as perfected ethics and irresistible logic.

The immense number of statutes and reported cases, both constantly increasing, besides the usages which prevail as law, all render it impossible for lawyers or judges to buy, much less study fully, all these sources to which a law writer looks.

IV. The Value of Treatises.-Then a law writer who is a profound student and thinker, can on subjects which have been long and fully litigated in courts, better decide what the law is, taken as a complete and connected science, than judges who, as too often happens, only examine such of the cases as may be presented which seem to shed light on a particular cause under investigation. A law writer, too, can devote to a book all the time requisite, while judges often can give but limited time to the consideration of the most important subjects. I do not undervalue the profound learning, the unanswerable logic, the deep philosophy of our ablest judges, or the ethical and legal value of their decisions, often expressed with an accuracy, precision, force and clearness which leave no room to add to their wonderful and surpassing excellence. But after all, the decisions of these must be arranged into a connected system so as to be understood as a science, and differing conclusions must be reconciled or contrasted in a form to leave no doubt as to which is right. This is the work of the text writer. His is the book on which the profession must mainly rely, reserving the right to explore the sources from which it is drawn, and to test the reason on which it proceeds.

This country more than any other has been prolific of late

years in text books on the law. Some of them will perish before their authors. Some will survive in many of their leading ideas and principles, if not in exact form, as long as the principles of the common law are known and administered among men.

V. The Works of Joel Prentiss Bishop.-Of this latter class are the works of Joel Prentiss Bishop which I propose briefly to notice.3

He had peculiar opportunities and has evinced special aptitude for writing law books. For years engaged in the active practice of the law, he commenced to write his work on Marriage and Divorce, which he finished without nominally withdrawing from the active duties of his profession. But when he made engagements to write his works on Criminal Law, he withdrew from practice to devote his time exclusively and give his undivided attention to the great undertaking. This gave him great opportunities and large advantages— such as but few American authors have enjoyed. Kent indeed gave the profession his Commentaries of surpassing value and excellence, though much of his life was devoted to official duties. It was not possible for Justice Story, by his own unaided exertions, to perform his official and other 3 His law books are:

I. "Commentaries on the Law of Marriage and Divorce, with the Evidence, Practice, Pleadings, and Forms; and of Separations without Divorce, and of the Evidence of Marriage in all Issues. By Joel Prentiss Bishop. Fifth Edition, revised and enlarged. Boston Little, Brown, & Co. 1873. 2 vols. 8vo.

2. Commentaries on the Criminal Law. By Joel Prentiss Bishop. Fifth Edition. Boston: Little, Brown, & Co. 1872. 2 vols. 8vo.

3. Commentaries on the Law of Criminal Procedure, Pleading, Evidence, and Practice in Criminal Cases. By Joel Prentiss Bishop. Second Edition, revised, rearranged and enlarged. Boston: Little, Brown, & Co. 1872. 2 vols. 8vo.

4. Commentaries on the Law of Statutory Crimes. By Joel Prentiss Bishop. Boston: Little, Brown, & Co. 1873. 8vo.

5. Commentaries on the Law of Married Women, under the Statutes of the Several States, and at Common Law and in Equity. By Joel Prentiss Bishop. Boston: Little, Brown, & Co. 1873. 2 vols. 8vo.

6. The First Book of the Law. By Joel Prentiss Bishop. Boston: Little, Brown, & Co. 1868."