"Keep still or you are a dead man. If you move I'll take your heart's blood. You at the window, if these folks move, shoot them." They did not see the owner of the "pleasant voice," and its "pleasant" (?) character was their only means of identifying the enterprising burglar. The defendant, naturally not desiring to accept this compliment to his voice at the expense of a residence in the State prison, sought to show by several friends who drank with him that at the time in question he was at a ball in New York, and was "not a-burgling," but "listening to the merry [drink] a-gurgling." There was also evidence that another midnight gentleman had a "pleasant voice;" but all in vain. His "interesting, manly, gentle voice" convicted him, and he learned a new application of "vox et preterea nihil."
Although most of our readers probably see that interesting periodical, "The Albany Law Journal," the following remarks published in its issue of June 1 are so excellent, we cannot refrain from copying them in full.:—
"Seldom can more sense and satire be found in a page of print than in 'Putting New Wine into Old Bottles,' by Judge Seymour D. Thompson, in the 'Green Bag' for April. The writer shortly describes the state of England three hundred years ago, and concludes: 'In fact, our ancestors of those days were barbarians, not as far advanced as the Bulgarians of our own time. When therefore we have a new question of law to study, why should we go back and try to find what the opinion of Lord Coke, whose infamous prosecution of Sir Walter Raleigh can never be forgotten, was on the question? Why should we try to find what Sir Francis Bacon, who sold justice, thought about it? Why, in short, should we not stop rummaging the old books, and do a little thinking for ourselves? Our ancestors in their day did their parts as well as they could, with the light they had, and amid such surroundings as they had. But as compared with us, they were barbarians compared with the civilized man. In intellectual stature they were children compared with the moderns.' The 'Harvard Law Review' dissents from this view, and wants to be told of a few moderns compared with whom Coke and Bacon were children in intellectual stature. The writer of course was speaking of the mass of the people, and particularly of the lawyers. The critic has picked out two intellectual giants of their day, or at least one. Bacon, however, did not earn his reputation as a lawyer, and we are not aware that he is ever quoted as a lawyer. Certainly there have been scores of greater lawyers since his time. Coke probably was not intellectually great, and although a great lawyer for his time, yet there have been many greater since. There are at least four greater lawyers on the present bench of the Federal Supreme Court. Rapallo was a greater lawyer. He is not worthy of mention in the same day with Mansfield, or Kent, or Story, or Marshall, or Comstock, or Nicholas Hill, or Cowen, either as an intellectual power or as a repository of legal learning. Parsons knew more law; so did Wharton; so does Bishop. In truth, both England and America have outgrown Coke and Bacon, their times and their legal learning. There never was much of the old common law as compared with the common law of to-day, and it is rapidly growing less. We speak respectfully of it from habit, but it was but the scaffolding, which has nearly disappeared in the erection of the great edifice. It is almost as effectually superseded as the philosopher's old knife with its new blades and new handle. If any man wants to learn the real value of the traditions which we call the common law, let him study our commonly accepted sources of it as described in Wallace's "The Reporters," and observe how conflicting, obscure, and untrustworthy they are. Let him read Governor Hoadly's address made at Saratoga last summer. He must then confess to himself that our reverence for it is like that of a negro for his fetich, or an Indian for his curiously carved log. The chief value of the ancient common law is its free political spirit, which gave and preserves for us our State institutions. In admiration of this we are apt to be unconscious or forgetful of the puerility and inconvenience of many of its purely legal notions, of their unsuitableness to modern conditions, and of the fact that we have utterly marched away from them. Our modern law is chiefly admirable for its radical difference from the ancient. Entire branches have sprung up which the old law knew nothing of,—corporation, insurance, negotiable paper, and many others. Mansfield created one branch, Marshall another. In fact, so inhumane and barbarous was the common law, that our ancestors themselves felt compelled to invent a superior article for hard cases, which they called equity. Much of the modern prostration before the ideas of the common law is as unreasonable as would be an adherence by modern physicians to the medical theories and practices of the Middle Ages. When the 'Review' asks if Judge Thompson believes 'that a judge of to-day can safely strike out for himself,' we will take it upon ourselves to answer yes; that is exactly what they are doing and have been doing all along, and that is what the common-law idolaters give them the highest praise
