duty was felt, but the task was shrunk from in Massachusetts in 1816. Nor is it cause of surprise that the subject which affects every individual, should bring into the field a tribe of compilers to supply the neglect of the legislature. Thus probate directories, assistants, and vade-mecums have successively had their day, and given place to digests and abridgments of more ample promise, but not of more perfect execution. We regret that the work at the head of this article, which might have been rendered a safe guide, should be of the latter character. It commences with a brief historical notice of the probate jurisdiction, borrowed from a pamphlet published some time since on that subject, but without acknowledgment, (a) and proceeds to arrange the different statutes under the several heads indicated in the title page, and states the decisions of the courts of Massachusetts which are applicable to them. It partakes little of the character of a treatise which the author assumes for it in his preface. The compiler has, however, the merit of seldom hazarding an explanatory observation not derived from the author of the Commentaries on the laws of England or from the work of Toller; and when he does, its accuracy cannot be implicitly relied on. An instance in his second chapter, on the definition of wills, may be cited as an example. He says, page 14, 'a will or testament is the declaration of a party's intention which he directs may be performed after his death.' The use of the subjunctive mood would afford to executors an option with which few testators, we are inclined to believe, would be willing to indulge them. Neither Blackstone nor Toller, whom he cites, justify this definition. The former gives it from the Digest in these words, 'the legal declaration of a man's intentions which he wills to be performed after his death:' Toller: 'which he directs to be performed after his death.'

In the next sentence but one Mr. Blair observes that it will pass only such estate as the testator was seized of at the time of his death, and in the fourth section the observation is repeated.

The statute of wills requires the party to be seized at the time of making his will to give effect to the devise, and 10 Mass. Rep. 131, the authority referred to turned on the point of seizin at that period, and not at the death of the testator.

(a) A View of the Jurisdiction and Proceedings of the Courts of Probate, &c. Salem. 1822.

A rule of the ancient law which prevented the transfer of a naked right, gave countenance to the proposition that the statute of wills should be construed so as to prevent a devise taking effect where there had been a subsequent disseizin. (a) It seems strange that it should work a revocation; and the act of a wrong-doer compel a man to die intestate. No direct decision on the point is found in the reports of Massachusetts. And as it regards actual seizin, or seizin of wild lands, we do not hold the doctrine.(b) If the author meant that a subsequent alienation would amount to a revocation, he should have stated the proposition with that limitation, and indicated the modification which the rule had undergone with us. 5 Pick. 116. Again, at page 125, is found this observation, 'A guardian cannot by his own act bind the person or estate of his ward.'

The statute of 1794, c. 64, authorizes the guardian to bind minors as apprentices, under the age of fourteen years, in case of the death of the father; and after fourteen, having the minor's consent expressed in the deed. The guardian may make sale of the personal estate of his ward, except stocks or shares in corporations, which was probibited, for the first time by the statute of 1817, c. 190, s. 35, (c) without license from the judge of probate. Careless remarks of this description, which by a slight attention might have been avoided, should not have been indulged in by one whose directory, as the preface informs us, was intended to be useful, as well as plain and intelligible.' Other errors might be pointed out; those of the press, by no means inconsiderable, we forbear to particularize, as they may be remedied if the work proceeds to a second edition. In such case, deficiencies should be supplied, and we would recommend for this purpose a thorough perusal of Swinburne, Godolphin, and Dr. Burn.

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The distinction between the effect of a residuary clause on a devise of real and personal estate when lapsed, should be noted; and whether other relation,' in the statute of 1783, c. 24, s. 68, is to be taken in the strict or popular sense. Something might be advantageously added under the title of nuncupative wills, particularly where the amount does not exceed fifty pounds; by what proof they are to be established, and what effect, if any, the statute has had upon that class of bequests.

(a) 11 Mod. 128, Brunker v. Cook.

(b) Dane's Abridg. c. 125, art. 6; c. 127, art. 4.

(c) See 1 Pick. 245, Ellis v. The Proprietors of Essex Merrimack Bridge.

Much might be gained on this head by a reference to the opinion of chancellor Kent, in the case of Prince v. Hazelton, in 20 Johns. Rep. 502; of rendering an account; and on the effect of a just account in discharging the principal or sureties in the probate bond, a discussion might be usefully had. The feebill provided for a quietus; whether such a discharge has fallen into disuse, and the cause of it, should be ascertained. Some of the decisions have apparently added nothing to the authority of res judicate; it appears that a technical waste is not purged by accounting for the article wasted, although the account may be allowed after due notice to all parties. (a)

If this work be destined for the profession, these and other topics should be enlarged on, and resort had to the civil law writers for illustrations, particularly in respect to the rules of descent as modified by the 118th novel of Justinian; if not, we should give a decided preference to the second work at the head of this article, for the 'lay gents.' That gives minute instructions for the performance of the office of administrator, executor, guardian, and trustee, at each successive stage of their duty. Local peculiarities are discernible in this work, nor is it free of error. We doubt the propriety of appraising choses in action, referred to at page 44; certainly such a practice in Massachusetts is growing out of use; these rights are usually entered on a list appended to the inventory. The object is to place in the registry a schedule of them with their amounts; and whether sperate or desperate cannot be known, till efforts have been made for their collection; it must be an idle ceremony for men to undertake to value on oath what is hardly the subject of valuation. The recommendation (in page 70,) to place at interest the money collected from time to time in the course of executing these trusts, and of seeing to the assignment of dower (page 218,) is not warranted by law, and may be productive of much inconvenience. Both of these works contain various forms which it will be unnecessary to examine. We notice the inaccuracy of the one relative to conveyances of real estate, in which personal covenants are introduced, in order to put the unwary on their guard. In the appendix of the former, page 239, is found a covenant against all persons claiming as heirs; and at page 196, of the latter,

(a) 16 Mass. Rep. 291, Dawes, judge, v. Winship. 5 Pick. Rep. 97, Brazier v. Clarke.

covenants against incumbrances, and for quiet enjoyment, which involve liabilities that ought never to be assumed in these trust capacities.

The value to the students of the law, of compilations of the kind we have been remarking on, depends altogether upon the completeness and accuracy with which they are formed. We are inclined to concur with Coke however, that they are 'most profitable to them that make them.' For general use the aid they furnish is doubtful. A treatise upon these subjects is much to be desired; and we despair of seeing one adapted to the institutions of New England and to the wants of the profession, unless the author of the 'View' we have already referred to, should resume his pen and fill up the outlines of the lucid sketch he gave to the public eight years since.

ART. IV.-ATHENIAN MARITIME LAWS.

[The following is the best account of the Greek laws on bottomry and respondentia, that has hitherto been published. It is from the translation published in London, 1828, of the PUBLIC ECONOMY OF ATHENS, published at Berlin by Augustus Boekh,(a) in 1817, and will be found equally interesting, both by the lawyer and classical scholar.]

A still higher profit [than the usual rate of interest] was obtained by capitalists, allowance being made for accidents, by sea-security (TOMOS NAUTIXOS, Exdoris) or bottomry, in which, according to the Grecian custom, the ship, the cargo, and the money received for passengers and freightage, were answerable. for the principal. The loan appears to have been most frequently made upon the goods, (επι τοις φορτίοις, επί τοις κρημασιν, επι τη εμπορία) more rarely upon the vessel (επι τη νηι, επι τω πλοίω)

(a) The author is noticed in the Encyclopædia Americana under the name of Bökh, as one of the most distinguished philologists of the age, and his learning has not, like that of Parr, been sterile and of no utility beyond the personal acquaintance of its possessor, or after his decease. Professor Boekh is a public Greek lecturer and professor at the University of Berlin, and has published an admirable work on the odes of Pindar; and his Public Economy of Athens, from which the above extract is made, is the beginning of a new era in Attic antiquities. He is a genuine specimen of the indefatigable, neversleeping German literati. In the most active period of his studious life, he sat with his feet in cold water, during the night, to prevent his falling asleep. His intense application has been injurious to him, his sight being now much im

and the money received for passengers and freightage (T vavλw) (a) In a case mentioned by Demosthenes(b) in which a trierarch borrowed money upon a ship that belonged to the state, and to the command of which he expected

successor,

it is probable that the only security given was the ship's furniture, which was the private property of the trierarch. This species of interest, which was so odious at Rome, does not appear to have given offence in Greece, and at Athens, in particular, as being a commercial town; it was, however, exposed to much risk, as the loss of the security brought with it the loss of both the principal and interest; agreements of bottomry, in which the creditor did not undergo the risk, were prohibited by the laws of Rhodes, that is, nobody could take such high interest as was customary in bottomry, without exposing himself to the danger of the loss; but since by the Athenian law, every person could take as high interest as he could obtain, this restriction was not met with at Athens; and such contracts as the Rhodian law prohibited, have no connexion with agreements of bottomry, as there would, in those cases, be either

paired, though he still devotes many hours of the day to study, and retains his memory in all its vigor, insomuch that he makes all his numerous quotations and references, in the course of his lectures, without recurring to any written notes; and the accuracy of his references is considered so important, that each one is given twice by the lecturer, with great distinctness, that every pupil may note it correctly, and not be misled or at fault, in recurring to the authors cited, as it is the practice of the pupils to do after the lecture. While Mr. Niebuhr remained at Berlin, before his appointment as Prussian minister near the Papal Court at Rome, he and professor Buttman, (the author of the Greek Grammar, a translation of which has been used in some of our colleges,) Schleiermacher and professor Boekh, read together once or twice a week, some Greek author, each one making remarks and criticisms, and references, in relation to the passages read. In this way each revived and fixed in his memory his own reading, and at the same time possessed himself of the learning of the others. A richer treasure of Greek erudition has never, probably, been collected. Mr. Niebuhr has since remarked that he considered the hours spent at these meetings, those of the most rapid, easy, and satisfactory acquisition, of his whole life, and that all the seeds of Greek learning which had before been sown in his memory, were thus fertilized, and expanded into mature knowledge. The effect was no doubt the same in respect to the others. Professor Boekh made an address in Greek to the present emperor Nicholas, of Russia, at the time of his visiting Berlin.

(a) Concerning the expressions in use, see Schneider ad Xenoph. de Vectig. p. 180. An instance of money being borrowed upon freightage and the vessel, occurs in Demosthenes in Lacrit. p. 933, 22, and upon the freightage, as appears from Diphilus; and of money lent upon the vessel, Demosth. ib. and in Dyonysod. p. 1283, 18. What proof Hudtwalcker (von den Diateten p. 140) can bring in favor of his assertion, that at Athens, in cases of foenus nauticum, the ship was always pledged, I am unable to guess. The contrary is indeed evident from the passages quoted by Schneider and myself.

(b) In Polycl. p. 1212,

VOL. III.-NO. VI.

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