required to define marriage. Now, the word marriage has two different meanings; in the one sense, it denotes the act of entering into the relation of husband and wife; in the other sense, it signifies the relation itself. In the former sense, there is no dispute that marriage is a contract; because people are not forced into the matrimonial relation; two competent persons first contract together to be husband and wife. In the latter sense also, up to the time when Bishop wrote, every judge and text writer, whose utterances on the subject were given in the books, had defined marriage to be a contract. This definition, it is true, had been more or less qualified; some, indeed, had overloaded it with qualifying words, but all clung to the definition itself, that marriage was a contract. But Bishop very correctly denied that, in this latter sense, it was a contract, discarding entirely the old definition, and defined it as a status-neither more nor less. He conceded to it in this sense one element of a contract. And that was true, both in reason and adjudication. His book was pub

read the present work with profit and pleasure; and we greatly admire that portion of it which is devoted to the law of marriage. Unlike Reeve and others of our former writers, who feared the Pope greatly, he set himself against the saying of the courts that marriage was a mere contract, and showed with great force why it should rather be regarded as a status or relation. To our thinking, he did much to bring professional men and the courts to a better understanding of the peculiar nature of that institution. And while his treatise on Marriage and Divorce was, as he calls it, an 'aggressive work,' when it first appeared-for Mr. Bishop has always assumed higher functions than those of a digestmaker-he finds it now an accepted authority in the courts, and valued no less for its accurate learning, than the sound thinking of its author.

'Comparing the present with the preceding edition we are glad to observe that Mr. Bishop profits by criticism and corrects faults as he grows older. Particularly do we rejoice to find him striking out silently the most offensive passages in that long criticism which he passed upon the English case of Brook v. Brook, decided upon what he believed to be untenable grounds, and yet by as respectable an authority as the English House of Lords. Intemperate expressions and coarse abuse of the judges can never help either advocate or law writer to overcome the courts which decided against him, nor create sympathy for his cause. Mr. Bishop mellows and gains dignity and composure of style as he advances in years, and his law books grow all the better for it."

lished in 1852; it has been widely read and commented upon and his definition has been in substance. or in words, universally adopted, not only in the United States, but in England also. It would sound strange now to hear a judge holding the old language; all admit, that, though there is such a thing as a marriage contract, yet, when the nuptial knot has been tied through a contract, the executed marriage is not a contract. And Bishop's particular definition has been not unfrequently commended. For example, in a Georgia case it was said that, "Perhaps the most accurate definition of marriage is found in Bishop on Marriage and Divorce."6

This altered definition is mentioned here merely as illustrating a principle on which Bishop's books are written throughout. A definition is, in legal literature, a statement in brief of the law of the subject to which the definition relates. The books are full of instances in which judges and text writers hold certain language which had dropped from some predecessor, while the actual decisions have been contrary to the language. In such a case, the true law is, not the language, but the adjudications; that is, the determinations of the courts on the facts in litigation. This is a proposition upon which there is no dispute among the authorities; all are agreed that it is so. Thence it follows, that a text book which employs the old language, at places where it is erroneous, is mischievous and misleading.

But how do we know that a particular expression of legal doctrine found in the books is erroneous? We compare it with the decisions. If the decisions, when all are taken into view, harmonize with the old utterance, then the old utterance is right; if they do not thus harmonize, then it is wrong. If we carefully read and meditate upon every decision pertaining to marriage, we will find that whatever the judges said while pronouncing their decisions, the decisions themselves were contrary to what they would be if marriage were really a contract,

"Askew v. Dupree, 30 Georgia, 173, 176. And see for illustration of the altered way in which marriage is now spoken of by the courts, Keerl v. Keerl, 34 Md. 21; Kinnier v. Kinnier, 45 N. Y. 535; Amory v. Amory, 26 Wis. 152, 162; Hyde v. Hyde, Law Rep. 1 P. D. & M. 130.

and just what they should be if marriage was a status.

Therefore, the legal result is, that marriage is in law a status, and is not a contract; and all the language which it would be possible for all the judges to employ, could not make it otherwise, so long as their actual decisions remain what they are. This conclusion could only be reached by an examination of all the reported cases relating to marriage, including those necessary to be cited in a work of this character and those which have ceased to be of value.

A law book can only be really what is desired, when it cites as well the cases which support the text, as those which hold a different view, so long as the question may be regarded as an open one. This has been the invariable practice of Bishop, and it adds much to the perfection and value of his works."

7 One of the most eminent jurists of this country, in referring to Bishop as a law writer says:

"Every sentence which our author writes shows that he is thoroughly master of his subject in its minutest details, that he has studied all that others have written upon it, and that all his own words are weighed and measured. Hear what he himself says in his preface to the fifth edition of the Marriage and Divorce :' After stating that the new edition contained a citation of the authorities which have appeared since the publication of the fourth edition,' he adds: 'I have carefully read every word as it stood in the last edition, weighed anew every statement of the law, considered anew every form of expression, and made such alterations and corrections as seemed to be required.' Then he proceeds: 'I have added such new matter and such new views of the old, as the accumulations of nine years and my studies and experience in legal authorship have enabled me to do.' Labors such as these can never fail to produce valuable fruit, unless a writer is utterly incompetent for the tasks he undertakes. Such is not the case with Mr. Bishop. His mind is eminently juridical. He sees broad legal principles, and the subtlest distinctions and qualifications of doctrine, with equal precision, and states them with the greatest clearness and accuracy. His knowledge of the law is profound and critical. It is impossible to read his books without noticing the discriminating judgment with which he is constantly discussing and comparing the decisions and reasonings of judges. By this means he is many times enabled to show the unsoundness, not only of ideas thrown out by judges, but of the points decided. His remarkable power in this respect has sometimes caused judicial errors to be corrected and no doubt sometimes to be prevented."

He has in fact generally cited all the cases on disputed questions so far as they can be of any value, as well upon questions which may be regarded as settled as those not entirely so. This collection of authorities was essential to the completeness of his works.

But the feature which more than all others renders his books valuable is that, while presenting all views, all theories, all decisions material to know the history and existing state of the law, he has stated the law on principle, as deduced from its reason and philosophy, as the result of the logic of the decided cases.8

66

In doing this, Bishop has not escaped criticism. Thus, the Chicago Bench and Bar for April, 1873, in a notice of his "Statutory Crimes," says: His writings on legal subjects are characterized by conciseness, clearness and abundant citation of authorities. While his books are not free from mannerisms, and while he indulges in some instances in the presentation of theories confessedly not founded on adjudications, and open to criticism as thus wanting in the weight of authority, there is in them a sufficiency of sound reasoning to entitle them to the respectful consideration which they have received."

from a

Now it is plain that the words which I have here put in italics proceed misapprehension of the character of Bishop's books, or of the meaning of legal language Without referring to statutes and other arbitrary forms of written law, there is nothing in the books of this author which he ever confessed to be, or which in fact was, "not founded on adjudications." Clearly, therefore, the writer in the Bench and Bar alluded to instances in which Bishop has stated rules of law as the result of principle. But no writer who understands himself ever meant that the doctrine which he was laying down adjudications." The meaning is directly the reverse; namely, that it is founded on

"

on principle" was not founded on

adjudications, most emphatically so, and not on a single ad

judication, but on a line of adjudications sufficiently long to establish the principle while on the other hand, a proposition may be said to be sustained by the adjudications, though they have not been so numerous and full as to establish a principle. Another distinction is, that we sometimes say a rule of law must be in a given form on principle, if the adjudications have not been of the exact question, but of questions neces-arily leading Hence in some instance principle may be one way and adjudication another, the meaning of which is, that the nearer and remote adjudications are in conflict. And if a writer does not, as Bishop has done, point out this conflict, he would not state the law"

to it.

rately.

on the authorities" accu

A case may be supposed to illustrate this. Let it be supposed that a

And now I proceed to notice another feature of Bishop's works:

2. He has placed the true doctrine of the law in such lights and accompanied it by such reason as to carry conviction to the

man was sued for necessaries furnished a woman alleged to be his wife, the defendant denying this allegation. Suppose the proven facts to have been, that the parties were duly married; but, a month after the marriage they agreed together to be no longer husband and wife, and the question for the court was, whether or not this post-nuptial agreement sundered the marriage. The court held that it did, the judge observing : "The question is, I am surprised to find, a novel one. I had supposed it to be settled that married parties could not dissolve their marriage by mutual consent. And I do find, on looking into the books, that they contain some such hints; but I have examined every reported case, English and American, and the result is that the question never was raised, and I must pronounce upon it for the first time. Still, the doctrine is plain, and it is contrary to the impressions of the community and to my first impression. Every reported case, and every text book, lays it down that marriage is a contract. And it is an established principle in the law of contracts, supported by every text book on the subject, and often adjudged and never contradicted in the courts, that the parties to a contract can mutually dissolve it at pleasure. They have dissolved this contract, and what they have done this court has no power to undo." What should a writer on the Law of Marriage, or of Husband and Wife, say of such a question? This was the only authority on the direct point, for counsel in subsequent cases had never dared to go back of this one adjudicated case to see if it rested on principle. Men like this reviewer in the Bench and Bar would have said a commentator, in stating the law, should lay it down "in the very words of the learned judge' and not "indulge in the presentation of theories confessedly not founded on adjudications."

But a really learned law writer of commentaries, who grasped the reason of the adjudications affecting marriage in all its results, would say that though this decision was not contradicted by any other to the direct point, it was still so contrary to legal principle, that it could not stand. Bishop has shown that, contrary to the universal language of the books, the "adjudications" proved marriage to be not a contract, but a status. This principle being established, it follows that the decision in question was wrong. And in evolving the principle that marriage is a status, not a contract, Bishop has placed the doctrine of marriage more accurately on the decisions than any of his predecessors had done.

Turning back, then, to the words of the reviewer, we see that Bishop is not open to the criticism he makes. On the contrary, his books are really echoes of the "adjudications" of the principles embodied in them.