says Coleridge, "that, upon the whole, the advocate is placed in a position unfavorable to his moral being, and, indeed, to his intellect also, in its highest powers. Therefore I would recommend an advocate to devote a part of his leisure time to some study of the metaphysics of the mind, or metaphysics of theology; something, I mean, which shall call forth all his powers, and center his wishes in the investigation of truth alone, without reference to a side to be supported. No studies give such a power of distinguishing as metaphysical; and in their natural and unperverted tendency, they are ennobling and exalting. Some such studies are wanted to counteract the operation of legal studies and practice, which sharpen, indeed, but, like a grinding-stone, narrow while they sharpen." And A. J. St. John asserts, on the authority of Lord Bacon himself, that "a laborious study of law has a natural tendency to narrow and enfeeble the mind." So much, then, for the contracting and enfeebling tendency of this study.

It is admitted, however, without much controversy, that the study on the other hand sharpens, and renders the mind remarkably acute (special qualifications of the lawyer, which, very probably, the reader has discovered on his own account, without the evidence of either Mr. Hallam or Mr. Coleridge). That the lawyer, of all men, is sharp, is proverbial; and to correct what evidently is a vulgar error on this subject, it becomes necessary to state, once for all, that this sharpness has nothing akin to the handicraft skill of the practitioner who dips his fingers into a gentleman's pocket in a crowd. In what, then, does this sharpness consist? Chiefly, it may be said, in a certain mental dexterity and quickness of conception, and the ability (as Lord Brougham remarks) to produce suddenly the mind's resources at the call of the moment. Qualities such as these have placed the lawyers in the foremost rank of masters in the art of disputation. Burke accordingly remarks, that the study of law "renders men acute, inquisitive, dexterous, prompt in attack, ready in defense, full of resources." The tendency of the rudiments of mathematics to produce a similar effect has been noticed by Professor Klumpp, who says that a "legitimate progress in these, aids, sharpens and delights the mind."

On the motion of the prosecution the Tichborne trial has been adjourned for a year. The government wants to hunt up evidence. "An agent of the British government," it is said, is in this country for that purpose. We were not aware that her majesty took such extreme pains to convict her offending subjects. It is evident that the prosecution found the conviction of the Claimant a more difficult matter than they had anticipated, and this adjournment has very likely been resorted to as a means of beating an honorable retreat. The case has been full of surprises, not the least of which is its present disposition.

CURRENT TOPICS.

The recent decision of the court of appeals in the case of The People v. Albertson will be received with satisfaction by all those who believe in a strict adherence to the constitution for better of for worse, however unpalatable it may be to a portion of the people directly affected by it. The action was brought nominally, to enforce the payment of a small bill, but really to test the constitutionality of chapter 638 of the Laws of 1873, which was an act to establish a Rensselaer Police district. The police of the city of Troy was under the control of the democratic authorities. For the purpose of putting it under the control of the republicans, or at least beyond immediate local influences, the act was passed. It was a part of the plan to have the police commissioners appointed by the governor, and in order to avoid that provision of the constitution which confers upon cities in this regard the right of local self-government (art. x, § 2), the drafters of the bill included, besides the city of Troy, a little island in the Hudson and a few acres of land in the adjacent towns, and called the whole a "District." By so doing they supposed they had brought their bill within the principles laid down in The People v. Draper, 15 N. Y. 532, and The People v. Shepard, 36 id. 285, the first of which cases sustained the constitutionality of the Metropolitan Police act, and the second that of the Capital Police act of 1865. But the court of appeals held - Judge Allen writing the opinion that the act was "In the direction of an encroachment upon the constitution, an improvement upon both acts," and unconstitutional. The court very evidently disapproved of the doctrines held in those cases, but avoided overruling them by distinguishing the case at bar. That there was a difference in degree is clear enough, but that there was a difference in principle we are unable to discover. If the legislature has the power to establish a police district comprising four counties, or one comprising parts of two counties, why has it not the right to establish one comprising a city and parts of adjacent towns? Where is the boundary line of legislative power? While the court avoided, in terms, overruling these prior cases, the ratio decidendi is clearly against them, and their value as authorities in this State is reduced to about zero.

Following in the footsteps of English merchants, the New York Chamber of Commerce has commenced to discuss the feasibility and desirability of a Court of Commerce, has instructed its committee to inquire into the expediency of establishing such a tribunal "for the speedy, judicial and economical settlement of disputes among merchants and others." Although such courts have been long established in several of the European countries, it is only recently that the Anglo Saxon has entertained the idea. Courts of Commerce, like courts of conciliation and of Arbitration, have their merits as well as their demerits, but

we are not sufficiently familiar with their constitution and workings to form an opinion as to which is more likely to predominate. The tendency of all such tribunals is to change all questions from issues of law to issues of fact, or in other words, to disregard technicalities and proceed solely on the merits. The slight part which Arbitration takes in the settlement of disputes between man and man would indicate a lack of faith in the good results wrought, where fixed legal rules are disregarded; and courts of commerce are but arbitration under another name. But with a proper admixture of the legal and the lay elements, and under proper restrictions, Courts of Commerce may do much social good and little legal harm. The limitation should be: First, resort to them should be optional; second, their jurisdiction should be confined to reasonable amounts; third, no appeal should be permitted except where partiality could be proved to have influenced the judgment; fourth, the members should be sworn to decide according to law, so far as their abilities enabled them to do so; fifth, the legal members of the court should determine all questions as to the admissibility of evidence. The constructions of documents might be left to the court as a question of fact.

And now comes the New York Evening Post, with the statement that "The question of the chief justiceship is regarded in well-informed circles, as virtually settled in favor of Senator Conkling;" and the Washington correspondent of the Boston Post confirms the statement. The latter says that he has learned from a gentleman "in the inner circles of the supreme court," that all the aspirants for the presidency, "including Grant, favor Conkling's appointment, as it will make one candidate less." He further says, that as Mr. Justice Miller is third in date of commission, the President considers that the "harmony of the bench might be disturbed" by his nomination. Here are two very curious reasons, one for the appointment of Mr. Conkling, and the other for the non-appointment of Mr. Justice Miller. The Springfield Republican, however, cites an excellant reason why we should be reconciled to Senator Conkling's appointment, if he be appointed-the reason given by Mr. Schmidt, when asked if Mrs. Schmidt, who had just died, was reconciled to go." "Regonciled!— Mein Gott, she had to be regonciled."

Mr. Vernon Harcourt, whose name is familiar to our readers in connection with the recent congress of international jurists, has been appointed SolicitorGeneral of England. He has long held a high rank at the bar, and has won an honorable parliamentary reputation. Last session he drew from Disraeli the remark that he "talked like an attorney-general." As he is but one step from the attorney-generalship he has a fair prospect of talking not only like an attorney-general but as the attorney-general.

ANSWER TO CRITICISMS.

The author of "Remarks on some Points in Jewish Law" says (p. 261, ALBANY LAW JOURNAL), "that I came to speak upon two points in Jewish Law, viz., upon Prusbul and upon the Law of Divorce, and that he cannot refrain from saying that his (my) allusions to Jewish Law are not very fortunate, they are partly insufficient and partly erroneous, and apt to convey to the mind of the reader totally false impressions." This is a sweeping charge, considering that he does not attempt to controvert my other positions, that, in Talmudic Law, we find a most astute lex nonscripta frequently coinciding with the law as now construed; that two of the fundamental maxims of ancient Jewish Jurisprudence are provisions in the Constitutional Laws of the Union, and that the Mosaic Law should not be classed among the barbarian codes. He limits himself to one question purely of law, and to a minor one of etymology and practice. Has he proved any part of his assertions on the points he so carefully selected and hastened to censure in the positive manner stated in his introduction?

First. To my assertion "that the notion generally entertained that (according to Talmudic Law), a female

could not obtain a divorce for cause is fallacious," he answers that " the inference to be drawn from this remark, that a court can decree a divorce upon solicitation of a female and for good cause, would be far more fallacious." I will reply to him first in his own (?) words (p. 293): "Yet the Doctors of the Mishna conceded already that a woman may be entitled to a legal separation (perhaps he meant legally entitled to a separation) from her husband, and they stated quite a number of reasons justifying her to ask for a divorce. How then? Well, if the man refuses to issue properly the desired writ of divorce, he can be coerced to do it; FORCE, moral and physical, can be brought to bear upon him until he declares that he is willing to execute the writ." I could be content with this statement, but, not desiring to cite him as my authority, prefer to give reference to writers of well-established reputation. Lindo v. Belisario, Hagg. Cons. R., p. 216, was a cause of Jactitation of Marriage, and to demonstrate the complainant's status as a wife, recourse was had to the argument that she would require a divorce from the defendant, and a valid cause was assigned. On this question of divorce the case says: "Then he (the man) is ordered immediately to give her divorce, and were he not to conform himself to the lawful mandate of the tribunal, he would be compelled to it." This recognition by Sir William Scott would be satisfactory to most lawyers. The main reasons for which a wife could sue, obtain a decree and compel an execution of a letter of divorce, are stated in Fassels' Mosaisch Rabbinisches Civil Recht (Vienna, 1852), from which I

translate, vol. 1, p. 51, § 86: "The wife can compel a

divorce if the obligation of conjugal fidelity has been violated by the husband-p. 65, § 111. If the divorce is decreed of office, then it can be compelled by corporal punishment, but if only in private suit, then by pecuniary fine." Where, I ask of the reader, is my error, my insufficiency, or wherein have I created a false impression?

The critic alludes to the consequence if the man should prove contumacious. This consideration, even

issue. Compliance with law, and not non-compliance, is the judicial presumption. It might as well be maintained that there is no law in this State for the enforce

if pertinent, would not be relevant to the question in

ment of judgments, and prove the assertion by returns of executions unsatisfied. It ought to be borne in mind that, notwithstanding the existence until recently of a local rabbinical court in Altona, Jewish Jurisdiction has not been, for many centuries past, a matter of universally legally-recognized authority. A Jewish consistorial court convened in Chicago by consent of parties might decree a divorce, but I know of no means by which they could enforce the attendance of a party or witnesses, much less proceed to inflict the bastinado for a contempt of its authority. It was otherwise when the courts described by the critic (p. 276, A. L. J.) had legal authority. There were not only the judges (sometimes more than three), and the clerk or notary, but also the "Kateigor," prosecuting counsel, the "Saneigor," defendant's counsel, the "Lablor" (from the Latin Libellator), acting as writer to the parties, and the " 'Atalion," or executive officer, and I venture to say that before this power the B. F. of that day did not dare to resist a decree. It is singular, to say the least, that the paper in No. 19, A. L. J., in substance, bears closest resemblance to arguments and authorities published in the Hebrew Leader of this city by an eminent Jewish divine, to controvert the critic's former hostile attitude to Talmudic Law of Marriage and Divorce, and it detracts from the dignity of a purely scientific legal discussion that the critic should have cast even an implied reflection on his co-religionists by styling them "so-called orthodox Jews." The world recognizes no such distinction. In the present era, to the great public all Jews are Jews alike.

Second. As to Prusbul. My critic admits that the derivation of the word is from the Greek, but that instead of being the equivalent of роσßoλn, a shield or protection, it is from two words, "pроσ Boλy, before a court. As I cited Auerbach (an eminent jurist) as my authority, the accuracy of which the critic does not question, I can again ask where is my error, insufficiency, or attempt to mislead? I gave in full a citation from Mishna, which the critic has not attempted to translate. On translations he is great, in his own opinion, for he frankly confesses " a fault confessed is half forgiven," that translation by Maimonides, Rashi and other competent men are not accepted by him in preference to his own. His theory is, that a Prusbul was an avoidance of a statute of limitation as regards a debt. I will not charge him with error, insufficiency, or attempt to mislead. propose to quote from the text (its translation), and to demonstrate that his charge against me is untenable. The reason I do not refer to text-writers is founded upon the practice of Sir William Scott, in the case above quoted.

I

My proposition was, that this instrument was a conveyance of land acknowledged by the grantor before a judicial officer. I repeat my reference to Jeremiah, chap. 32, v. 9, 10, 11. It is there said: "I bought this field and weighed him out the silver. I wrote the book and sealed it. I took the book of purchase, - Sepher Hammiknoh," the proper words in the Hebrew language for our word "deed." The introduction of the word Prusbul was at a later period. The writing of a deed is thus described to be by the "purchaser," there is nothing said of the part taken by the vendor. The quotation from Peah, the second, and, therefore, one of the earliest books of Mishna, at chap. 3, v. 6, is the earliest mention of Prusbul. R. Akiba says: "Land, no matter how small the quantity, is subject to the charges of part crop for the poor (Peah) Fersthings

(Bikkurim), and there may be written concerning it a Prusbul, and therewith can be acquired movable property which cannot be followed (i. e., in the hands of an innocent purchaser for value), by silver, and by a contract (Shtar), and by possession." I have in my former article called attention to the marked antithesis in this sentence between "Prusbul" and "Shtar." The latter refers wholly to a debt or obligation, the former to land. We find this latter qualification in Shebüth, chap. 10, v. 6: "A Prusbul can be written of land only ' -it thereby becomes mortgaged. V. 7: "A Prusbul can be written concerning a bee hive - it is real estate." The character of the Prusbul as an instrument affecting real estate only, and conveying an interest which could not be barred by an intervening seventh year, is thus fixed beyond peradventure. That it was known not to be a Shtar or obligation for a debt appears conclusively from ib., v. 5: “An ante-dated Prusbul is valid, a post-dated one is void. An ante-dated Shtar is void, but a post-dated one is valid." Here is an irreconcilable difference between the requisites of a Prusbul and of a Shtar, and yet it is sought to be maintained that the former related to the keeping alive of a debt of which a Shtar was the necessary evidence. Still further, ib., same verse: "If one has borrowed of five different persons a separate Prusbul must be written for each, but if five persons borrow from one, only one Prusbul must be written for all five." In view of the citation from Jeremiah, the form of the Prusbul can have no weight in determining the actual manner in which it was procured. It is very clear that an interest in real estate passed from the owner; and inasmuch as it was not part of the contract nor a judgment, I cannot conceive how it could have been made except as an additional security by the debtor himself, of his own consent. I ask again where is my error, my insufficiency, my conveying to the reader a totally false impression?

To pass to a side-hit by my critic (note 11, p. 277, A. L. J.), in which he says: "Totally incomprehensible is it how the judge could say the word 'Rabbi' is analogous to the Greek ßpå ßeùs, Arbitrator, Distributor of Prizes. Rabbi, 'My Lord,' is a derivation from the good Semitic word 'Rab (Lord),' etc., I am not aware that I intended to be understood that both words had the same origin, or to enter into a question of etymology; on the contrary, I supposed that they are words of different languages, though the Hebrew Rab occurs but once in the Pentateuch (20 v. chap. 19, Isaiah). My authority is found in "Contributions to the Study of Talmudic Languages," etc., by Drs. Beer, Leysohn, Ch. R. Loew and others (Ben Chananjah, 1858, p. 130), ", Brabi. This obscure and hitherto unexplained word is perhaps no other than Bpa Bevo, Arbitrator, Distributor of Prizes. This honorary title was bestowed upon several professors of law, first, R. Gamalil II, of Jabne, etc." The term Rabbi is now used as an honorary title, and is often assumed by those who pretend to be men learned in Talmudic Law. It is now freely bestowed upon all who distinguish themselves as leaders in Jewish pulpits. It then corresponds with Reverend," but to translate "B. Felsenthal" "My Lord" of “Zion Congregation, Chicago," would be simply ridiculous.

Cicero. My task with Rev. Mr. Felsenthal is ended, and I do not propose to travel outside of a strictly legal controversy. I avail myself of the occasion to say that my note referring to Pixley v. Clark (35 N. Y. 520), taken out of its proper connection is liable to be misunderstood. I intended to illustrate how much the law can be considered as a study of the continuity of human thought. Whilst Pixley v. Clark was pending in this State a litigation on similar facts was progressing in England, and is reported Rylands v. Fletcher (3 H. L. R. 330). In the House of Lords the judgment of the Court of Exchequer, 3 C. & H. 774, was finally reversed, just as in Pixley v. Clark the decision of the Supreme Court, General Term, was reversed by our Court of Appeals. The General Term decision in Pixley v. Clark was cited as authority (note 3 to p. 330 of 3 H. L. R.), on the argument before the House of Lords in 1868, but not the opinion of the Court of Appeals delivered two years before, viz., in 1866. The final results were alike in both cases, but the opinions of Blackburn, J., aud of Justice Peckham proceed upon totally distinct grounds. Rylands v. Fletcher is not cited in Judge Peckham's opinion, and neither Pixley v. Clark nor the oration I referred to in Demosthenes' work are mentioned by the English judges; but as the English case was decided on the maxim of sic utere, and the one in our State on that of aqua curril, I referred to the latter case only.

PHILIP J. JOACHIMSEN.

BEQUESTS TO ATTESTING WITNESSES OF WILLS.

Two cases recently decided in the Court of Chancery have determined points of considerable interest with regard to the operation of the fifteenth section of the Wills Act (Stat. 1 Vict. c. 26), whereby any person who, or whose husband or wife, is an attesting witness to the execution of a will is excluded from taking any benefit thereunder. The point in the first of these cases was this, whether when the gifts expressed to be made by a will to an intended donee are altogether void under the above-mentioned section, the subsequent execution by the testator of a codicil confirming his will and attested by independent witnesses has the effect of vivifying the void gift and making it operative. That was decided in the affirmative by Bacon, V. C., in the case of Anderson v. Anderson (20 W. R. 313, L. R. 13 Eq. 381). In that case a testatrix by her will devised and bequeathed all her residuary estate to her son George Anderson, whom she also made her executor. The will was attested by two witnesses, one of them being the wife of George Anderson. Consequently the beneficial gift expressed to be made to him under the will was, in the words of the Act of Parliament, "utterly null and void." But subsequently the testatrix made a codicil to her will by which, after merely giving some directions about allowing time to a certain debtor, she "confirmed her said will in other respects." The codicil was attested by two independent and disinterested witnesses, and both the will and codicil were admitted to probate. The suit was instituted by another son of the testatrix for the sole purpose of determining the question whether the codicil had the effect of giving validity to the residuary gift to George Anderson contained in the will, and the circumstances being of this simple nature the decision was one on a point of law only, and on that account the more important. The arguments advanced by the plaintiff's counsel were chiefly directed to this, that

the reference in the codicil to a "will" must mean a will which satisfied the conditions of the Wills Act, if in fact there were such a document in existence, and that, for the purpose of seeing whether the will referred to was a valid will, it was necessary to look to the attestation; and upon the attestation being examined in this case it was clear that the gifts to George Anderson were void. The Vice-Chancellor, however, upon the authority of Allen v. Muddock (6 W. R. 825, 11 Moore P. C. 427), which had decided that the execution by a testator of a codicil referring to a former will amounted to a republication of such will, without regard to the fact whether or not the document referred to complied with the requirements of the law as to execution or attestation, held that in this case the execution by the testatrix of her codicil had the effect of republishing her will and making it "a new and original disposition," and that "the whole contents of the pre-existing will were incorporated in the codicil."

Difficulties might be raised in following out this reasoning exactly to the result at which the Vice-Chancellor arrived, for if the "whole contents" of the former will were incorporated into the codicil, it might be contended that those contents having been modified by a necessary part of the will, it is not very intelligible how the Court could disregard such modification of it. But, without going too minutely into these difficulties, we think that the Vice-Chancellor's judgment cannot be altogether reconciled with some former decisions bearing upon the point under consideration. Assuming that the subsequent codicil did amount to such a republication of the will as to make it in all respects a new and original testamentary disposition, it would follow that, where a person to whom a beneficial gift had been made by the will became one of the attesting witnesses to the codicil, he would thereby be disentitled from taking the benefit given him by the will. But that this is not the law was expressly decided by Kindersly, V. C., in Gurney v. Gurney (3 W. R. 353; 3 Dr. 208). In that case a pecuniary legatee under a will was one of the attesting witnesses of a codicil, by which, as in Anderson v. Anderson, the testator expressly confirmed his will [see the report in 3 W. R. 353], and the Vice-Chancellor held that the 15th section of the Wills Act applied only to a case in which a legatee attested the identical instrument under which he took. This decision has twice subsequently met with the approbation of Wood, V. C., in Tempest v. Tempest (2 K. & J. 635, 642), and Gaskin v. Rogers (14 W. R. 707; L. R. 2 Eq. 284, 295).

Again, it has been repeatedly held that a codicil, although it confirms and amounts to a constructive republication of a will, does not, in the absence of an express indication of the testator's intention to the contrary, operate to revive a legacy given by the will which has been adeemed or satisfied, or has been revoked or lapsed in the interval between the dates of the will and codicil. The ground upon which these decisions rest is, that the codicil operates only to revive the will as it existed at the date of the execution of the codicil, so as to give it the same effect as it then had. (See Booker v. Allen, 2 Russ. & My. 270, 300; Powys v. Mansfield, 3 M. & Cr. 359, 376). This principle appears to us to apply with equal force to a case like that under consideration, and we do not see how it is possible to make a distinction between the effect of a codicil with regard to a legacy which has been inoperative ab initio and its effect with regard to a legacy which has become