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past, and in the composition of some of which, as in too many other modern law books, the scissors have had a greater part than the pen.
The reputation, which the learned gentlemen whose names appear on this title page have already acquired by similar services to the profession, bas created an expectation which cannot fail w be satisfied by an examination of their book. With some of the cases, and a first edition of some of the notes, our readers are already familiar, from their appearance in former numbers of this journal The volume is with great judgment and propriety dedicated to Mr. Justice Bigelow, of the Supreme Judicial Court of Massachusetts, of whose thorough understanding of the theory of this branch of the law a very good example is given on page 318, in his very clear and convincing opinion on a nice question of the burden of proof in Commonwealth v. McKie, 1 Gray, 347.
Io so great a mass of accurate and copious learning, as is compressed into the very capacious pages of this volume, it is impossible to notice more than a small nuinber of the topics discussed ; but we may mention, as instances of a very full treatment in a convenient form, of important subjects, the authorities, upon some of which are not easily to be found collected elsewhere, Whally's case, (p. 1,) on the difference between a crime and a civil injury ; Hull's case, (p. 42,) on the question when death occasioned by negligence is manslaughter; Longbottom's case, (p. 54,) on the effect of the deceased's owo negligence on such liability ; York's case, (p. 68.) on the criminal liability of infants ; Rogers's case, (p. 87,), on the law of insanity in criminal cases ; Hart's case, (p. 250,) on the pleading of exceptions and provisoes ou statutes ; and the notes on the weight in evidence of larceny of recent possession of property stolen, and on what constitutes burglary, pp. 365, 526,511.
We should not do our duty to our readers, if we did not notice some imperfections which arrested our attention, when casting our eye over this volume. There is a want of uniformity in the mode of citation, though the names of reports and text-books are usually given quite fully enough. Indeed, to our eye, " Bi. Com.” and “ Hale P. C.” look better than the names at length, and our old friend, “ Cro. Eliz.” looks very strange as “Croke, Elizabeth.” The copious citations in the notes, from opinions in other cases, are very often not distinguished by quotation marks, thus creating much confusion, and rendering it difficult to distinguish the language of the commentator from that of the judges. The list of cases selected is not made so as to facilitate a hasty reference, the cases nut being arranged under the names of the defendanis, by which criminal cases are usually remembered ; and even the party prosecuting, when it happens to be The King, The People, or The State, is ranged under the leiter T, instead of under its appropriate letter.
But these are sınall matters, though of considerable practical importance. A more serious objection lies to ihe principle, or raiher the want of principle, on which some of the cases are selected. A leading case is a case in which an important point has been seliled, for the first time, by a court of high authority. As Mr Smith said, in the preface to his admirable selection, E..ch involves, and is usually cited 10 establish, some point or principle of real practical importance." The learned editors of ihis collection have s-lecied their cases, forihe most part, with discrimination. But some of them cannot, un any test, be recognized as leading cases ; and one proof of this is that many cases, especially lowards ihe end of the volume, have no nutes appended — shuwing that the cases in question have never been recognized or followed. We must protest against a case decided in New Hampshire in 1850, (p. 164,) being called the leading case on the subject of the protection afforded to an officer by his warrant. Commonwealth v. Hunt, 4 Met. 111, would seem to be more entitled to be called a leading case on the subject of conspirary than the subsequent case of Commonwealth v. Eastman, 1 Cush: 189, which has also the disadvantage of containing much malier irrelevant 10 the point for which it is selected. (p. 264.) The selection of cases to illustrate the well established rule of pleading, prevailing as well in civil as in criminal cases, that when a charge is brought against a d-fendant, arising out of the publication of a written instrument, the instrument itself inusi be set out in the declaration or indictment, is particularly unfortunate ; for Commonwealth v. Wright, 1 Cush. 46, was decided as late as 1818 ; and Wright v. Clements, 3 B. & Ald. 312, was a civil, and not a criminal case. (pp. 296, 312.) The effect to be given to the uncorroborated testimony of an accomplice was certainly settled before Nov. 241h, 1855. (p. 515.) And we may be permitted to doubt whether recent cises on such poinis as the form of the caption of an indictment, (p. 600.) the precision requisite in describing the mortal blow in an indictment for murder, (p. 58,) or what words are iilem sonantia, (p. 316.) are worthy of the society in which they are placed. The report of the rulings of Iwo Irish judges, at nisi prius, in 1855. (p 563.) on an indictment for Bible burning, wants all the elements of a leading case.
In our opinion, too many nisi prius cases are inserted, as well as too many cases, reported in the diffuse, conversational, rambling, helter-skelter style of some of the modern English Reports The reason, given in the preface, for reprinting several cases from Cox's Criminal Cases, “ that those reports are not generally accessible to the profession in the United States," so far from being a satisfactory ground for calling those cases leading, seems to us pretty strong evidence of the contrary ; and certainly many of the cases selected from those reports are among the least important in the voluine. And we should hardly have thought it necessary to the instruction of the student or attorney in the unavoidably indelicate branches of criminal law, to print in full, in the text and notes, five cases of indecent exposure, and three of indecent assault, with the evidence in some detail, including not only the circumstances attending the offence, bui, in one case, full copies of misspelt letters alleged to have been written by a wiiness for the prosecution, and in no wise material to the question of law decided.
ADDRESS AT THE Social FESTIVAL OF THE BAR OF WORCESTER County,
Massachuselis. Feb. 7, 1856. By Hon. EMORY WASHBURN.
We have received the eloquen address of Governor Washburn to the Bar of Worcester County, and have found it especially interesting from the notices it contains of the members of that bar, who have flourished and passed away within the period of twenty-five years, over which the orator extended his view. These notices are enlarged in the appendix, and give an excellent necrology of a bar which has produced many able and learned counsellors, and which, as a body, has been distinguished by a inore than ordinary amount of union and good fellowship.
The social festival" which called forth this oration, was an event worthy to be celebrated in prose and verse ; for our bar meet far too rarely and 100 formally in social life. In reading Judge Curtis's letter of reply to an invitation to this festival, we were painiully reminded that a plan for uniting socially the bar of Suffolk Couniy, which that gentleman formed soine years silice, failed of its accomplishment. We hope ihe scheme is not impracticable, however, and that in some mode it may yet be revived.
Governor Washburn gives, in the course of his remarks, some statistics which show that the lawyers of Worcesier County, (and we believe they are not singular in this respect.) are not often enriched by their profes. sional exertions, but quite the contrary. He found that of the toriy-five lawyers who had died within the iwenty-five years, thirteen were insolvent. On the estates of only twenty were inventories reiurned. and of these only one had more than fifty thousand dollars, and this was not made by his profession. Nine of them were under five thousand dollars, and four averaged less than seventy-six dollars each. Mr. Webster was right in saying ihat lawyers live well and die poor.
Died at Lenox, August 3d, 1856, CHARLES SEDGWICK, Esq., aged 61. Mr. Sedgwick's connection with the profession of the law, through the office which he filled for many years, and his large acquaintance with the members of our bar, give us, we hope, a right to speak of him in our payes. It would be an honor to any profession to connect itself with such a man; and we are unwilling, when the general regrei at his loss has been expressed by so many of the public journals, that he should not be re. membered in ours.
Mr. Sedgwick's life has been so unambitious, that it has no events to record. He was the youngest son of Hon. Theodore Sedgwick, of Stockbridge, a name well known in the political and judicial history of iho State, was educated chiefly at home, early entered the profession of the law, removed to Lenox, and was soon appointed clerk of the couris for Berkshire, an office which he held till bis last illness. Living in what, for the best years of his life, was a sequestered village, without fame in his profession, without wealth or distinction of any sori, no man in his section of the State, and perhaps no man in the whole State, was more beloved, admired, and cherished than he. He was a man made to be loved. And he had a combination of qualities as rare as genius. He was as honest, as brave, as single-hearted, and as clear-headed, as any man; and he had the tenderness, the fine instincts, and the subtle perceptions of a woman. His observation was so alert, that all which the senses could give him was his; and he made it materials of solid judgment, and a penetrating scrutiny of men and things. No man noted more of what is fugitive and eniertaining in the huur as it passes, no man laid up greater treasures of experience, and no man ever made his experience serve more for the instruction and amusement of his friends. With his quick eye and ready expression, he had a sense of ihe ridiculous, and an exquisile wit, which lighted up the world for him and for his friends. His pleasantry was delightful; it was the fruit of every day, so natural, so piquant, nothing stored up, and nothing labored; it was unexpected when you heard it, and was forgotien before you could repeat it. Nur was his graver conversation less attractive; it was the thought of a serious and discerning roan, interested in the past and in the present ; full of amazing disquisitions, the humor ofien very near to pathos, and not wanting in depih either ; the reflections singularly just; and the whole tone of his remarks
showing that discriminating sense, which we expect from men of the world, and with a perfect courtesy, too sincere to have been learnt from the world.
But Mr. Sedgwick’s true glory was his humanity. His wit, his raillery, his observation, all those inimitable graces of ihe ictellect, were servants of a native and living love of everything that breathed. Every movement for political freedom, and for the removal of social evils, had his attention, - not as matter of duty, but as matter of course. It was part of his life. And the c iminal in the neighboring gaol, and the dog at the door, never looked at Mr. Sedgwick's face, or heard his voice, without feeling that he was a friend.
Natural delicacy of health, and perhaps an aversion to the contests of an acuve profession, led Mr Sedgwick to prefer a retired life. Whether he did wisely, he was the best judge. Certain it is he filled it well. We have inany men in New England more eminent, who are excellent each after his kind. But just such a man as this, nobody who knew Mr. Sedgwick, expects to see again. That high tone of manners and of thought, that peculiar felicity of organization, that union of opposite qualives, that refinement, that honor, and that wisdom, are not the subject of frequent repetition, ai least with us. He adorned and enjoyed life, and from the vulgar contests, and common aims, which now constantly engage as, it is a privilege to turn to the recollection of his example.
Ensolvents in Massachusetts,
Pickett, John W.
Isaac Ames. 26,
David Per.. ins.
Joba W. Bacon.
(a) Moore & Crosby.
MONTHLY LAW REPORTER.
THE RIGHT OF EMINENT DOMAIN.
[Continued from p. 262.] And now
3. What is to be regarded as a taking under the Right of Emi. nent Domain ?
(1.) Mere consequential damage cannot be held a taking; for it affects only the use of property, and follows more or less the exercise of other sovereign rights, as, e. g., that of restricting the use of property. Losses of this kind, as we have seen, give no claim for compensation on any general rule.
The State, then, may send its officers on a man's land to select, survey, and lay out sites for public works, and there is no taking of his property. The officers of the State must have room wherein to move about and accomplish the sovercign will, and no man ought to look asquint at them while engaged in this duty, much less to treat them as trespassers, or to demand compensation, when he has suffered only such loss or inconvenience as every man must expect to meet with from the due performance of the functions of government.
But if there be a destruction of all beneficial use of property, consequential of necessity upon the action of the State, this (it would seem) ought to be regarded as a taking.3 For the taking
Com. v. Tewksbury, 11 Metc. 55; Case of Phil. & Tr. R. R. Co., 6 Whart. 25.
2 Winslow v. Gifford, 6 Cush. 327; Can. Co. v. R. R. Co., 11 Leigh, 42. 3 Hooker v. R. Ř. Co., 15 Conn. 318. VOL. IX. —NO. VI. - NEW SERIES.