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authentic report of the case (Bemis, p. 3), they will find that the real mode of signing was “ Daniel Rhodes' in full.
To serve as a preventive to our readers against similar mistakes in citing the abuvenamed '“ pamphlet,” or (as it is more commonly called), “phonographic” report of the Webster case, we will take occasion to state that it comes so near amounting to a travesty of the whole matter, that one of Professor Webster's connsel, to our knowledge, offered the publishers, Messrs. Phillips & Sainpson, a hundred dollars, merely to omit his speech altogether, so that he need not go before the public in such a shocking botch of mistakes and nonsense. The offer was rejected, on the score that the speech was then in type, and it would interfere with getting out the book, to make the corrections !
As a single other specimen of the report, and as an excellent legal joke, we will stop to quote Dr. Stone's report of Mr. Sohier's idea of manslaughter, p. 130" Tf,” (the combatants) - get excited on equal terms (!) and commence their quarrel with the fist and afterwards have some other weapon, it is excused as caused by heat of blood ercited by the body." ** Heat of blood, excited by the body,” for the heat of blood of manslaughier! Doubtless the Doctor's mind was just then running on violent exercise and a quickened circulation. But we are afraid that even a profuse perspiration would be a poor plea in the mouth of a homicide on trial for murder.
But, to resume : Donahoe v. Richards, p. 379, is the decision in regard to the use of the Bible as a reading book in the common schools, which attracted so much attention at the time of its announcement, on account of its religious and political bearings. We published the opinion of the court in our last August number, as given by Appleton, J. It will well repay a second reading. The argument of the counsel for the plaintiff, the losing party, is given quite in entenso. Mr. Rowe certainly makes out a good deal of a case, at first blush, for Mr. Dana and the court to meet and overcontrary; and that doubtless brought the point up for revision. We do not find that Mr. Heath, in his list of cases doubted.or overruled," makes any mention of this; and yet we understand its authority to be flaily denied ; as it ought to be.
As a specimen of reporting, Mr. Dana's argument, as here reported, if faithfully abbreviated, hardly does justice to the interesting and able plea which we read at ihe time in the newspapers. In looking for this case in the index, we could find no reference to it under the heads of School, Action, or Case. Sume imperfect abstract is given under the head of Constitutional Provisions.
Wentworth v. Poor, p. 243, seems substantially opposed to the late Massachusetts case of 'Thurber v. Martin, 2 Gray, 391, where it was held that the constant use by a riparian proprietor of the waters of a running stream for a mill does not deprive a proprietor of an upper privilege from making a reasonable use of ihe same, adapted and appropriate to the capacity of the stream,” though necessarily interfering thereby to some extent with the lower proprietor. We rather think the Massachusetts court wok the more liberal view of the subject ; though neither case is sufficiently developed on the facts to throw much light on the important principle involved.
Nickerson v. Harriman, p. 277, is an interesting case on the law of damages as to the speculative value of a minor's life to his father. It was held that if the minor died, the jury were not at liberty to conjecture what would have been the value of his services if living.
In State v. Upham, 261, it is held (much to our surprise that it needed holding, or that there were adjudications already existing on the point), that if a criminal offers no evidence of good character ihe prosecutor is not at Jiberiy to raise an inference in argument 10 the jury, of the defendant's guilt or of his bad character. It seems that there had been an unlucky decision of the court (State v. McAlister, 24 Maine, 139) to the
In Freeman v. Machias Water Power and Mill Company, p. 343, affirming Miller v. Ewer, 27 Maine, 509, the important point in corporation law is held, that no legal organization by corporators under a charter granted in Maine can be effected by their action in another State.
But we forbear further ciations. We hope that these are sufficient to show to Massachusetts practitioners, at least, that the jurisprudence of our sister State continues to be of value and importance to them. Thirtyeight volumes of construction of Massachusetts law now to be availed of from the District of Maine alone, where, since Chief-Justice Shaw came to the bar, not a volume of printed reports of either State could be laid hold of for the practitioner's guide!
Of Mr. Heath's style of reporting, as before intimated, we cannot pass our unqualified expression of approbation. We are not fond of marginal notes like “ when a deed is void as to creditors," " of allowing an officer to amend his return," " of the construction of a deed ; "- all in the same case too, Wellinglon v. Fuller, p. 61. To say that very many cases contain the same kind of abstracting is enough to show want of care, though it may be countenanced by Howard and Peters, of the highest court in the Union.
Greenleaf's Evidence. Vol. III. 3d Edition. Boston : Little, Brown
This edition of Mr. Greenleaf's last volume of his standard work on evidence has been improved by the annotations of F. F. Heard, Esq., on the division of Criminal Law. Mr. Heard's position for doing justice to the task is a highly favorable one. Fresh as he is from the compilation of the volume of • Leading Criminal Cases," in connection with Mr. Benneit, and the preparation of " Precedents of Indictments," in conjunction with Mr. Train, and from his own separate editing of “ Davis's Criminal Justice," he ads to a knowledge of the newest law a strong interest in all the debatable and doubtful points of his province, and a true professional ardor in endeavoring to clear them up. We believe that it is at the hands of just such an editor that Mr. Greenleaf 's book is capable of being improved. Sometimes the practitioner, we fancy, is apt to suspect that he is not sure to find the newest case referred to in the professor's text and notes, and regrets that the citation of cases, from which he can seek out and establish his particular point of doctrine, is not more copious. This kind of deficiency he will find supplied at Mr. Heard's hands. Mr. Greenleaf's commentary, as is well known, has not the fulness of Roscoe ; but the profession will be obliged to Mr. Heard for so far bridging over the interval.
COMMENTARIES ON THE LAW OF MARRIAGE AND Divorce. By Joel
Prentiss Bishop. 3d Edition. Bosion : Little, Brown & Co. 1856.
When this work first appeared we devoted an article to some topics suggested by it, and to a review of the book itself. We see no cause to retract or qualify the good opinion then expressed. The book is marked by the excellencies of great industry in the collection and method in the
arrangement and analysis of the authorities, and what more can ro ask of legal text-books at this day? We are glad to see that the learned author has been obliged so early to prepare a new edition, and tha: it is enriched by numerous citations from the Scorch law, which is peculiarly valuable in this branch of jurisprudence, but which was inaccessible to the author when his work was first written.
Perkins, Woodbridge 0. (a) Ameshury, Pierce, Leonard II. New Salem, Pike, Joseph S.
Salisbury, Pullen, Russell E.
Framingham, Quimby, Samuel
Milford, Rice, Augustus M.
Boston, Rice, Jonathan, 24.
Marlboro', Feaver, John M.
Spencer, Shatswell, Joseph
Salem, Stone, Nehemiah II. Lawrence, Streeter, Salem W.
John G, King.
Alexander H. Bullock.
Plainfield, Symmes, Gardner
Winchester, Symmes, Joseph
Winchester, Wall, George F. (6) Worcester, Way, Charles
Lowell, Wiley, Timothy
Sangus, Wood, Asaph G.
28, 28, 18,
Erratum. In the July number, p. 155, line 1, for genuine power read general power.
MONTHLY LAW REPORTER.
THE RIGHT OF EMINENT DOMAIN.
We take much pleasure in publishing the following Essay, which took the first prize (of the class to which the author belongs) at the last term of the Law School at Cambridge. We are glad to hear that the author (Mr. J. B. Thayer, of Northampton) intends to practise his profession in this county.- ED.
I. The Right of Eminent Domain may be defined as the right of taking private property for public purposes. It belongs to no private individual, but is one of the sovereign rights of the State ; and as such is to be classed properly with the right of taxation, and that of regulating the use of property. It attaches to the State as the right of property attaches to man; it is, so to speak, one of the natural rights of the State, and its sources lie nowhere else than in the fountain-head of government itself.2
For to suppose the State, is to suppose the right of compassing the ends for which it exists; to wit, the common defence, the adjustment and regulation of the rights of individuals, as among themselves, and the furtherance of the use and enjoyment of those rights. It is to suppose the right of taxation, or of collecting the necessary revenue; of regulating the use of property, and shaping
Grot. De Jure Bel. et Pac. lib. 1, cap. 1, s. 6 ; Puff. lib. 8, cap. 5, s. 7.
Grot. De Jure Bel. et Pac. lib. 1, cap. 1, s. 6; Puff. lib. 8, cap. 5, s. 7; Vattel, lib. 1, c. 20, s. 244.
VOL. IX.- NO. V. - NEW SERIES.