--

*

is asked to vote a large sum for the administration, not of "military," but of "martial" law, in complete forgetfulness of the great and leading distinction between the states and conditions marked out by these terms respectively; the former, as is well known, referring to a regular code as contained in the mutiny act and articles of war, to which the land forces of the crown are alone subject the "body of regulations," as Mr. Field puts it, "prescribed by a nation for the government of its military forces;" the latter having regard to a condition of society when all law deserving of the name is in abeyance, and which involves equally, and is binding upon, all persons civil and military. The employment of the word "rule," therefore, in Mr. David Dudley Field's specimen of codification has, at least, this use, which is one quite beyond the immediate object of the chapter in which the matter is discussed, that it tends to clear away the obscurity arising from designating by the term "law" - a word which it is obvious implies a regular method of administering justice according to fixed principles a state of society which is only founded upon paramount necessity, and which, therefore, supersedes under the pressure of that necessity all the ordinary forms of civil procedure. To speak of that as "law" which implies the cessation of every thing that can properly be called by the name, marks an indifference to accuracy of thought and definition in matters of legal science which it is desirable should, as far as possible, be corrected. In this respect the work before us is worthy of imitation; and, indeed, not only in the section which treats of military persons and a state of war, but throughout the whole book, it is impossible not to be struck with the careful treatment which every subject receives, even where it is one so foreign as must the military status be in the view of an American jurist and to the student of American society. In the judgments of the supreme court, also, and in the valuable series of legal State papers known as the opinions of the attorneys-general, the constitutional position which the soldier occupies, as well in time of peace as in war, with reference to the civilian, the civil court, and his military superior, has been ascertained and placed on a sound basis of public and municipal law. With us, on the other hand, although a standing army is a constitutional fact and a permanent institution of

See the authorities collected in Mr. Clode's work upon the subject.

+1. Martial law is the will of the commanding officer of an armed force, or of a geographical military department, expressed in time of war within the limits of his military jurisdiction, as necessity demands and prudence dictates, restrained or enlarged by the order of his military chief or supreme executive ruler.

2. Military law is the rules and regulations made by the legislative power of the State for the government of its land and naval forces. Hence, offenses against these latter, or military laws, are determined by tribunals established in the acts of the legislature which enact those laws, such as courts martial and courts of inquiry. The officer executing martial law is at the same time supreme legislator, supreme judge, and supreme executive. Milligan's Case, 4 Wall. Sup. Ct. R. 1.

political society, many of these questions remain still in an unsettled state, which, not unnaturally, has been the cause of much discontent. The duties, for example, and the constitutional position of that important officer, the judge advocate-general, is still undefined, and his proper place and proper functions with respect to the soldier, to parliament, and to the commander-in-chief of the army, are ambiguous and matter of debate. The office is at present, as a makeshift which cannot long be allowed to last, held by the very learned judge of the court of admiralty, Sir Robert Phillimore, an arrangement which, however attractive on the score of economy, cannot but have an injurious effect, as the army is thus deprived of the exclusive services of a trained lawyer, whose sole duty it would be to examine into and revise the proceedings of courts military. So, also, to take another case of which an example has been recently forced upon public attention the extent to which civil courts may be resorted to in mixed cases, as for libel or slander, where papers written or words spoken in the discharge of military duty are attempted to be made the ground of civil proceedings* — is a question upon which, among judges of eminence, much uncertainty continues to prevail. These and other matters, which might be readily mentioned in connection with our military system, call for a more thorough and satisfactory settlement than they have as yet received. Our military code, in short, requires, in common with many other departments of our law, to be treated with something like scientific precision of language, and Mr. Dudley Field's book goes far to indicate the right method of accomplishing this desirable result.— Law Magazine and Review.

CURRENT TOPICS.

The patent congress which has just concluded its session at Vienna, adopted resolutions to the effect that protection of inventions should be guaranteed by the law of all civilized nations, that only the inventor or his legal representatives should be entitled to a patent; that patents should not be refused to foreigners; that a system of preliminary examinations should be adopted, and that governments should bring about an international convention for patent protection. The patent laws of the United States, of England and of Belgium were especially commended.

The conference of lawyers and writers on international law from Europe and America, which met at Ghent recently, for the purpose of examining the question of bringing scientific action to bear upon the administration of international law, has constituted a permanent international law institute, agreed upon its statutes, and laid down the three following subjects

* See Dawkins v. Lord Rokeby. 4 Foster and Finlason.

for consideration, viz.: International arbitration; the three rules laid down in the Treaty of Washington; and the conclusion of treaties for the codification of the fundamental rules of international law with respect to private property.

COMMUNICATIONS BETWEEN SOLICITOR AND CLIENT.

There have been some fluctuations of judicial opinion as to the extent to which communications between solicitor and client are privileged from disclosure. It has, indeed, long been settled, as was pointed out by Wigram, V.C., in Walsingham v. Goodricke, 3 Hare, 124, that communications between solicitor and client, made pending litigation, and with reference to such litigation; or made before litigation, but in contemplation of and with reference to litigation which was expected and afterward arose; or made after the dis

national law, and what ought to be the principles on which such a code should be framed?" The association invites the competition of Americans for the prize. The conditions relating to the essay will be found on page 192 of this volume of the ALBANY LAW JOURNAL.

The legal periodicals of England have been complaining for two or three years past, of a decline in law business, and some of our American papers have been echoing the complaint, although without sufficient cause. An English contemporary says:

"From various causes legal business is not now what it has been for the last half century. There is not, we believe, a diminution in the amount of litigation, but the mode in which it is disposed of is calculated in a considerable degree to lessen legal labor, and consequently to reduce the emoluments of the profession. Upward of six hundred causes were remitted last year from the superior courts to the county courts; the bar therefore suffered, and the solicitors' charges fell to a lower scale in those causes. The county court act of 1867 was passed in order to extend the jurisdiction of the inferior tribunals, and to relieve the superior courts of trifling and vexatious actions. There is, notwithstanding, a block in all the superior courts, and the delay has become of late a crying evil, which the Judicature Act has been passed to remedy. We find that in America the condition of things is much the same, but a contemporary attributes the decline in prosperity of the legal profession to a want of 'snap' among lawyers. Snap appears to mean dispatch, for we are told that the principal question usually asked by merchants who contemplate litigation is, 'How long is it going to take?' Our contemporary concludes: 'We want more high pressure movement, quicker action, and more decisive judgments. But, most of all, we want a lesser variety and a greater number of courts of concurrent jurisdiction.' English lawyers anticipate that the new procedure under the judicature act will greatly improve the prospects of the legal profession."

Hon. E. W. McKinsley, at present judge of the 12th district, California, court, has been nominated for supreme court judge by the independent tax payers of that State.

in contemplation of or with reference to such litigation, are privileged from disclosure, whether the party interrogated be the solicitor or the client. It has also been settled that professional communications between a party and his professional adviser, although they do not relate to any litigation either commenced or anticipated, are privileged where the solicitor is the party interrogated.

It has, however, been a matter of doubt whether the rule extends beyond the last case, and embraces such communications where the client, and not the solicitor, is interrogated. Some of the cases seem to imply that the privilege of the solicitor is more extensive than the privilege of the client, and that communications might pass between a solicitor and client as to which the solicitor, if called upon to give evidence, might refuse to answer, while the client could not; although, if the communications had been made after a dispute arose, the client also might refuse. Well might Vice-Chancellor Knight-Bruce remark (Pearse v. Pearse, 1 De G. & Sm. 27): "What for the purpose of discovery is the distinction, in point of reason or principle, between such communications and those which differ from them only in this, that they precede instead of following the actual arising, not of a cause of dispute, but of a dispute, I have never hitherto been able to perceive." Anomalies of this kind are often the precursors of a broader rule in which arbitrary distinctions are merged, and the decision in Minet v. Morgan, 21 W. R. 467; L. R., 8 Ch., 361, has at length finally established the law on a footing accordant with common sense and general convenience.

This case was a suit by a commoner against the lord, to establish rights of common claimed by the plaintiff and others. The plaintiff was required by the defendant to make an affidavit as to documents. Accordingly, he admitted the possession of correspondence between himself and the solicitors of his family, or between himself and his solicitors in the suit, written in contemplation or in the course of the suit, or with reference to the subject-matter in dispute, and of letters between his mother, from whom he derived title, and her solicitors, with reference to questions connected with the matters in dispute in the cause; but he stated that all these documents were of a private and confidential character, and that he believed them to be privileged, and therefore objected to produce them. The defendant took out a summons to compel production of these documents, which was heard on appeal by Lord Selborne, C., and Mellish, L. J.

The judgment of Lord Selborne, in which Mellish, L. J., concurred, traces the development of the rule as to the compulsory disclosure of communications between solicitor and client, and shows the successive steps by which the law has reached a broad and reason

able footing. In Bolton v. Corporation of Liverpool, 1 My. & K. 88; Hughes v. Biddulph, 4 Russ. 190, and some other cases of about the same date, the doctrine of protection was expressed in terms which had a tendency to narrow its scope. But in these cases a decision on the general question was not required; and the subsequent case of Pearse v. Pearse, 1 De G. & Sm. 12, clearly showed that the tide had turned. The case of Minet v. Morgan, coming at the end of a series of authorities tending in the same direction, seems to place beyond question the doctrine that whether the solicitor or the client be the party interrogated it is sufficient for the protection of communications that they should pass as professional communications between the party or his predecessor in title and his solicitor acting in a professional capacity, and that it is not necessary that they should be made either during or relating to an actual or even an expected litigation. Thus a simple principle has superseded a number of partial rules and arbitrary distinctions.

THE INNS OF COURT.

Our

Staines Brocket Brocket, Esq., whose death has just been recorded, was, and had been almost from a time to the contrary of which the memory of man runneth not, the Senior Bencher of the Middle Temple. It is now more than sixty years since Mr. Brocket was called to the bar. His first brief must have been held when Eldon was Chancellor and Ellenborough Lord Chief Justice. Those days have long since faded away into the domain of history, and we, with a Selborne for our Lord Chancellor and a Cockburn for our Lord Chief Justice, look back with blank astonishment at "all the oppression that was done" under the joint reigns of John Scott and and Edward Law. Yet there are things which even time is slow to touch. chancery procedure has been reformed, our commonlaw procedure amended. But our inns of court, like the pyramids of Egypt, still hold their own, superior to every change. It is now more than six centuries and a half since John of England pledged himself to his barons, at Runnymede, that common pleas should not thenceforth follow the court, but be held in some certain place. By common consent, both of suitors and lawyers, Westminster was fixed upon as the “certain place" at which common pleas were henceforth to be heard; and so it came about that there gathered together in the metropolis a body of lawyers, who began to settle themselves down about the western gate of the city, as being "the place best suited to their studies, practice and conferences." The necessity of a definite and organised system of legal education soon began to be felt, for those were the days in which books were not, and the pupil had to sit at his master's feet. Where, then, were the students of the law to betake themselves? The universities, older far than the inns of court, were barred against them. The ecclesiastics, who engrossed all education, and who alone were competent to instruct in the "arts" or litteræ humaniores, had as unconquerable an aversion to the common law as has his Holiness Pio Nono to comteism. The old feud between ecclesiastics and lawyers finds its fit expression in the pious wish "that every lawyer may kill a parson and be hanged for it;" nor is it to be wondered that the proud prelates and abbots, upon whose jurisdiction "common pleas" encroached, should, from mere jealousy of the newly-established courts at Westminster, have thrown every possible

obstacle in the way of their supporters. The lawyers, however, were not to be so easily beaten. When the universities turned a deaf ear they opened a university of their own. "Hostels of Court," or hospitia curiæ, giant legal caravanserai, were instituted, attached to and dependent upon the Westminster courts, huge unendowed colleges, filled with lawyers of every rank and grade. Of these "Inns," one, called Johnson's Inn, was at Dowgate, another at Fewter's or Fetter's Lane, and a third at Paternoster-row. In and about them lived, taught and transacted business, the counsel learned in the law, until, in the twentieth year of Edward III, the Knights Hospitallers of St. John of Jerusalem, to whom had been granted the forfeited estates of the Templars, demised "the buildings, church, gardens, and all the appurtenances that belonged to Templars in London" to certain students of the common law, whom tradition reports to have been originally located in Thave's Inn," in Holborn.

66

What a history is that of the Inns of Court! Mr. Brocket was himself the direct successor in power and office of Plowden, the great pleader; of the gentle Sir Walter Raleigh, who dates his poem to Gascoigne from "ye Middle Temple; " of Sir Thomas Overbury; of Sir John Davys, the poet; of John Ford, the dramatist; of Lord Chancellor Clarendon; of Bulstrode Whitelock; of Ireton, Cromwell's son-in-law; of Evelyn, of Lord Keeper Guilford, of Lord Chancellor Somers, of Wycherley, of Shadwell, of Congreve, of Southerne, of Edmund Burke, of Brinsley Sheridan, of William Blackstone, of Dunning Lord Ashburton, of Lord Chancellor Eldon, and of the great Eldon's yet greater brother, Lord Stowell. A noble list of predecessors this, and one to which a man may well look back with pride. It carries our memory to the old days spoken of by Fortescue, the subtle-minded author of the "De laudibus legum Anglia," when "the Temple, pleasantly situated out of the city and the noise thereof, and in the suburbs of London, between the city of Westminster, the place of holding the King's court, and the city of London, for advantage of ready access to the one and plenty of provisious in the other," was frequented by "worthy practisers of the law who lived in peace and quiet." In those, the stormy times of Henry VI, the Inns of Court were the first university of all Europe, and were frequented by "noble scions of the haughtiest families in England." So they flourished on down to the days of Stow himself, who speaks of them as "a whole university of students, practisers, or pleaders and judges of the laws of this realm." Since that period the great university has dwindled away; and Clement's Inn, where Shallow "lay," when he was "a mad fellow" in his youth, has diminished into a mere set of chambers. Templars and Alsatians no longer indulge in deadly conflict at the foot of Ludgate-hill, and the "young Templar" has long ceased to be a hero of romance. The old "disputations" in hall in presence of the benchers have died out; and the sole relic that now remains of the noble legal university of London is the daily dinner in Hall, where the benchers sit solemnly upon the dais, and the students below, impartially divided into fortuitous messes of four, partake of roast leg of mutton, apple pasty, and bread and cheese, washing the fare down with huge draughts of small beer and fiery port wine fresh from the wood. Like Rip Van Winkle, the Inns of Court have for some decades gone to sleep. Like Rip Van Winkle, they will soon awake and return to their own.

For

more than a hundred years the duties of a bencher have been the purest possible sinecure. The Inns are rich, it is said; but then their large property gives little trouble. The benchers collect their rents, and out of the proceeds first pay the officers and the current expenses of the inn, and then put by the balance in some sound investment; they call deserving students to "the dignity of the outer bar;" and they are good enough to dine in the common hall upon such days as it pleases them. This, the usual routine of their duties, is occasionally varied when a barrister who has sinned against the boni mores of his profession is "mentioned" to the bench of his inn. Fortunately for the honor of an honorable profession, such cases are excessively rare. It is, indeed, difficult to conceive a trusteeship more totally free from care than that exercised by a bencher; and there is some truth in the rough old proverb which defines the happy man as "a bencher of his inn, a fellow of his college, and a warden of his company." Alas! in these days of progress not even the bench itself is sacred. It has been suggested by rough and irreverent critics that the bencher is, or rather ought to be, a sort of college tutor in the laws of England; and that, if he does not lecture himself, he ought to pay a deputy to lecture for him. Strange to say, the bench itself has not taken this "good-natured advice" in bad part. The Inns of Court are, to do them justice, endeavoring to summon back into existence the great law university of London, once the first and most brilliant university of all Europe. Professors are being appointed, lectures are given, scholarships are awarded; and it is perfectly possible that, within a few years, Oxford and Cambridge will be comparatively deserted by aspirants to the long robe, while the twin temples, Lincoln's Inn and its "silent sister" in Holborn will be crowded with students. Reforming the internal administration of the Inns of Court will be, after all, but part of a great movement, in which the codification of our law and the simplification of our present cumbrous system of procedure are parallel steps.-Telegraph.

1. Constitutionality of acts: “local acts:" Code of Procedure. - Chapter 741, Laws 1870, being an act amendatory of the Code of Procedure, cannot in itself be claimed to be a local act, and therefore unconstitutional. Nor is section four of that act (§ 66, Code) local within the definition in The People v. Supervisors of Chatauqua, 43, N. Y. 21, for it is not limited to any portion of the people. Any one who has occasion can avail himself of the jurisdiction conferred. The Code, in many places (as Title V), contains clauses relative to tribunals whose jurisdiction does not extend throughout the State. They are not, therefore, unconstitutional. Ib.

making of the lease, the length of the term, the rent, the assignments, if any, the occupation, the non-payment of rent, the demand and the notice. Ib.

3. Form of notice in dispossession proceedings. - The notice requiring the payment of rent was not irrregular for stating the amount of interest owing upon the rent. The payment required was expressly of the "rent," and the case of Griffin v. Clark, 33 Barb. 46, is conclusive on that point. Ib.

4. Regularity of jury. —The justice, under the statute, nominated twelve jurymen. It appeared that they had not been properly summoned. He then nominated twelve others. Only eight attended, and six of these were drawn to compose the jury.

Held, that it was proper to issue a new venire (9 Wend. 231, cited), and there is nothing in the statute which affirmatively requires that the names of all who were summoned should be placed in the box. Ib.

Also, see Former Adjudication.
LEX LOCI CONTRACTUS. See Usury.
See New York City.

MANDAMUS.

MARRIED WOMEN. See Evidence.

NEW YORK CITY.

1. Powers and duties of the dock commissioners and the comptroller: mandamus. —This is an appeal from an order denying a mandamus, to the comptroller, to pay over to the commissioners of docks certain moneys for which a requisition had been made on him. The motion was denied on the ground that the requisition of the commissioners was not accompanied by any certificate or statement of the purposes for which the sum drawn for was required.

Held, that it is proper that the commissioners should state the purposes for which money is required, viz. : If it is for the payment of salaries and employees they should make their requisition of a gross sum for that purpose; in like manner, if for the purchase of land or any other purpose within the law. They are not required to present any further account or vouchers, save the general certificate above stated. No such certificate having been furnished, the order is affirmed. People ex rel. Agnew and others, Commissioners of Docks, v. Green, Comptroller, etc. Opinion by Ingraham, P. J. 2. The commissioners of docks have authority to expend annually upon the piers, docks and bulkheads of the city, under the provisions of the charter, a sum not exceeding $3,000,000, for which the comptroller is directed to issue and sell the bonds to that amount. There is no control over that board, as to the purposes for which the money is to be expended or the amounts to be applied to each purpose, provided they confine their expenditures to the objects specified in the statute. Ib.

3. The learned judge delivering the concurring opinion says: That the several provisions of the charter which place the finances of the city under the control of a single head require that the dock commissioners should present, with their requisitions, the proper vouchers to be audited and approved, as is provided in respect of other claims and accounts in which the corporation is concerned as a debtor. Order below should be affirmed, for the reason that no such vouchers were presented, as well as for the reasons assigned in the opinion of the presiding justice. Ib. Opinion by Davis, J.

NOTES, BILLS, ETC. See Evidence; Usury.
NOTICE. See Landlord and Tenant.