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Exch. 298; Hope v. Hayley, 5 E. & B, 830; Head v.
Goodwin, 37 Me. 182.

v. Poindexter, 6 Watts & S. 227; Chamley v. Dullas, 8 id. 353. Also see Poorman v. Mills, 39 Cal. 345; 2 Am. Rep. 451; Hemmelman v. Hotaling, 40 Cal. 111; 6 Am. Rep. 600.

In Tripp et al., plaintiffs in error, v. Curtenius, recently decided by the Supreme Court of Michigan, plaintiffs in error, who were engaged in the business of banking, issued, on the 22d of October, 1873, a certificate of deposit dated that day, signed by them and reading thus: "Daniel Howard has deposited in this bank eight hundred dollars payable to the order of himself in current funds on the return of this certificate properly indorsed." It contained on its margin these words, "Certificate of deposit, not subject to check, and no interest." Howard indorsed the certificate to one Dyckman, who, in February, 1876, transferred it to plaintiffs in payment of an antecedent indebtedness, and plaintiff shortly❘ after presented it for payment, when payment was refused. An action being brought, defendants set up that $462 had been paid on the certificate about the time it was issued, and that while Dyckman, the first indorsee, held it, the balance due thereon had been tendered to him. The court held, reversing a judgment for the plaintiff below, that the certificate was in legal effect a promissory note payable on demand, and that to make one a bona fide holder of such paper, so as to preclude the defense of payment, he must take it within a reasonably short period of its issue. The decision, so far as it holds such an instrument to be in effect a promissory note, is supported by numerous decisions. See Cate v. Patterson, 25 Mich. 191; Miller v. Austin, 13 How. 218; Laughlin v. Marshall, 19 Ill. 390; Carey v. MeDougald, 7 Ga. 84; Kilgore v. Bulkley, 14 Conn. 362; Bank of Orleans v. Merrill, 2 Hill, 295; Welton v. Adams, 4 Cal. 37; Johnson v. Barney, 1 Iowa, 531. See, however, Nat. Bank of Ft. Edward v. Wash. Co. Nat. Bank, 5 Hun, 605, where it was held that a certificate of deposit issued by a bank and payable on its return properly indorsed, was valid against the bank in the hands of a bona fide holder, notwithstanding it was not presented until seven years after issue, and that in the meantime a payment had been made to the original holder, and that such certificate is not dishonored until it is presented. See, also, as holding that no mere lapse of time will render a certified check part due or dishonored, Willets v. Phænix Bank, 2 Duer, 121; F. & M. Bank v. B. | & D. Bank, 14 N. Y. 624; Smith v. Miller, 43 W. | T. Rep. 176; Meade v. Merch. Bank, 25 N. Y. 147; Merch. Bank v. State Bank, 10 Wall. 648; Guard. Bank v. Bank of Penn., 39 Penn. St. 92. See, however, as supporting the principal case, Brumagin v. Tallant, 29 Cal. 503, where it is held that the statute of limitations begins to run against a banker's certificate of deposit payable on demand from the date of the same, and that no special demand is necessary to put the statute in motion. See contra, Patterson | Meneely, 62 N. Y. 427; 20 Am. Rep. 489.

In the case of Dunbar v. Glenn, recently decided by the Supreme Court of Wisconsin, plaintiff, who was the owner of a spring, the water from which was claimed to have certain curative properties, and which was known as the Bethesda Mineral Spring, and who had for many years sold the water in different parts of the country under the name of the Bethesda water, and had always marked the name "Bethesda" upon the packages containing the water, sought to obtain an injunction restraining defendant, who was the owner of a spring some twelve hundred feet distant from her (plaintiff's) spring, from using the name Bethesda in connection with the water from his spring, or packages containing the same. The defendant claimed that the word, as used by plaintiff, denoted the kind, quality, character or utility of the water of her spring, and therefore could not be a lawful trade-mark, and in support of his claim referred to the original meaning of the word "Bethesda," as defined by biblical writers. The court, however, held, that as plaintiff applied the name 66 Bethesda" to her spring to mark or distinguish the waters thereof in the market, she had the right to its exclusive use. It was not intended to, nor did it indicate the quality or constituents of the water, but rather its origin or ownership, and as a name for distinguishing the water, by which it might be bought and sold. The general rule governing trade-marks in such a case is, that where the trade-mark, in its original signification or by association, distinctively points to the origin or ownership of the article to which it is applied, it will be protected. But where it is a generic or geographical name, designating a city or district of country, or is merely descriptive of the article manufactured, and which can be employed with truth by other manufacturers, it is not entitled to legal protection as a trade-mark. See Amoskeag Manuf. Co. v. Spear, 2 Sandf. 599; Coats v. Holbrook, 2 Sandf. Ch. 586; Congress and Empire Spring Co. v. High Rock Spring Co., 45 N. Y. 291; 6 Am. Rep. 82; Canal Co. v. Clark, 13 Wall. 311; Brooklyn White Lead Co. v. Masury, 25 Barb. 416; Wolfe v. Goulard, 18 How. 64; Burke v. Cassin, 45 Cal. 468; 13 Am. Rep. 204; Stokes v. Landgraff, 17 Barb. 608; Corwin v. Daly, 7 Bosw. 222; Caswell v. Davis, 58 N. Y. 223; 17 Am. Rep. 233 (see points of counsel in this case, which are very exhaustive); Taylor v. Gillies, 59 N. Y. 331; 17 Am. Rep. 333; Perry v. Truefit, 6 Beav. 66; Fetridge v. Wells, 4 Abb. Pr. 144; Coffeen v. Buinton, 4 McLean, 516; Croft v. Day, 7 Beav. 84; Choynski v. Cohen, 39 Cal. 501; 2 Am. Rep. 476; Meneely v.

EXTEMPORANEOUS SPEAKING.

THIS subject, which is of great interest to our profession, was the text of a recent article in the New York Times newspaper, which disclosed a curious history of the most celebrated passage of American history. We refer, of course, to the peroration of Webster's reply to Hayne in the federal Senate. The subject possesses additional interest to us, also, because we once essayed a biographical sketch of the great orator in these columns. While we quite agree with the great authority quoted by the Times writer, that "the way to make a good extemporary speech is to prepare it in advance," yet, so far as our profession is concerned, it must be assumed that, in general, preparation is impracticable. With few exceptions, the lawyer has no opportunity for preparation. He must rise, fresh from the evidence, and pour forth his unpremeditated thoughts. This is true certainly of most trials before juries. As to arguments in the higher courts, it is different. There is ample opportunity for preparation, and indeed most of us carefully print much of our arguments. Every lawyer must feel, too, when he has delivered himself, how much better he could have done if he had had a few hours for arrangement, and even for a little writing. is said that Choate wrote immensely during his trials, and always had a pile of notes to speak from. What a blessed hour it is for the lawyer, when his antagonist precedes him, and he himself can make a few notes of his discourse! And yet, on the average, can it be said that the plaintiff's attorney makes a better speech than the defendant's attorney? Under the circumstances, the wonder is with us not that lawyers do no better, but that they do so well. We are every day filled with admiration at the superb unpremeditated rhetoric of the law courts. Much of it is probably better than it would be after preparation. A great many of our profession are the reverse of Goldsmith, who "wrote like an angel, but talked like poor Poll."

It

As to the Webster oration, the Times writer would have us believe that the peroration in question was infinitely inferior, as uttered, to its present wellknown form. He gives us the original short-hand report of Joseph Gales, editor of the National Intelligencer, taken from Mr. Webster's lips, and from which the orator prepared the printed version. The contrast between the two may be reckoned one of the curiosities of literature. Mr. Gales' version is as follows:

"When my eyes shall be turned for the last time on the meridian sun, I hope I may see him shining bright upon my united, free, and happy country. I hope I shall not live to see his beams falling upon the dispersed fragments of the structure of this once glorious Union. I hope I may not see the flag of my country with its stars separated or obliterated; torn by commotions; smoking with the blood of civil war. I hope I may not see the standard raised of

separate States' rights, star against star, and stripe against stripe; but that the flag of the Union may keep its stars and stripes corded and bound together in indissoluble ties. I hope I shall not see written as its motto, first Liberty and then Union. I hope I shall see no such delusive and deluded motto on the flag of that country. I hope to see spread all over it, blazoned in letters of light and proudly floating over land and sea, that other sentiment, dear to my heart, Union and liberty, now and forever, one and inseparable."

Now, if Mr. Gales is reliable, one thing is very evident, namely, that this passage, instead of being carefully thought out and pre-arranged, as has been believed, was purely extemporaneous. Herein it was different from the orator's custom, which, it is well known, was to arrange his finest passages beforehand. Such was the case, for instance, with the famous passage in the Bunker Hill oration, commencing "Venerable men!" The version which Mr. Gales gives us sounds much more like an imperfect attempt at reporting than the practiced utterance, by a great orator, of a passage designed to be the most impressive of the entire oration, and which, one would suppose, not only according to his custom, but in view of its important office in his speech, he would have written or thought out. But now let us print the orator's own deliberate version of the same passage, and compare the two:

"When my eyes shall be turned to behold for the last time the sun in heaven, may I not see him shining on the broken and dishonored fragments of a once glorious Union; on States dissevered, discordant, belligerent; on a land rent with civil feuds, or drenched, it may be, in fraternal blood! Let this last feeble and lingering glance rather behold the gorgeous ensign of the republic, now known and honored throughout the earth, still full high advanced, its arms and trophies streaming in their original lustre, not a

stripe erased or polluted, not a single star obscured, bearing for its motto, no such miserable interrogatory as "What is all this worth?" nor those other words of delusion and folly, "Liberty first and Union afterwards;" but everywhere, spread all over in characters of living light, blazing on all its ample folds, as they float over the sea and over the land, and in every wind under the whole heavens, that other sentiment, dear to every true American heart, Liberty and Union, now and forever, one and inseparable!" The general superiority of the latter version is apparent, but we can hardly subscribe to the Times writer's judgment, that the former is "clumsy " and "involved," and that it more nearly approaches the "ridiculous" than the "sublime."

In some

respects we even think the former preferable. For example, if the orator had extemporaneously spoken of "the sun in heaven," we might not have criticised it, but we cannot understand why he should deliberately have preferred that expression to "the meridian sun." Again, we must say that the omission of the idea, "star against star and stripe against stripe," was not judicious; that idea is one of the best in either version. "Broken fragments" is tautological; "dispersed fragments" is better; "dishonored fragments" alone better yet. It is apparent, from the report of Mr. Gales, that the words "what is all this worth?" had no place in

the original, and the oration would be better without them; they are redundant, and weaken the effect of the true comparison, which is between "Liberty first and Union afterwards," and "Liberty and Union," etc. Again, it may be asked, what "trophies" are there on the flag? As to "dissevered, discordant, belligerent," we always had our doubts whether the "God-like Daniel" really used those words, and it now would seem that he did not, but they are magnificent, and we will let them stand. Finally, the climax in both versions is not properly emphasized; the stress should be on the perpetuity, not on the condition, of the Union. The words describing its perpetuity should immediately succeed the emphasized "and." Besides, "forever" is a better word to pronounce in conclusion than "inseparable." So we would have it, "Liberty and Union, one and inseparable, now and forever." The greatest superiority of the printed version consists in its elimination of the personal pronoun, although doubtless Webster's hearers felt at the moment that the main thing after all was what the speaker thought about the subject. Webster was a superb egotist. When the dissolution of the Whig party was imminent he asked, "what is to become of me?"

If the orator had employed us to write out his peroration as he ought to have pronounced it, we should have recorded that he said:

"When my eyes shall be turned for the last time on the meridian sun, may I not see him shining on the dishonored fragments of a once glorious Union; on States dissevered, discordant, belligerent; on a flag arrayed star against star and stripe against stripe; on a land rent with civil feuds, or drenched, it may be, in fraternal blood! Let their last feeble and lingering glance rather behold the gorgeous ensign of the republic, now known and honored throughout the earth, still full high advanced, streaming in its original lustre, not a stripe erased or polluted, nor a single star obscured; bearing for its motto not those words of delusion and folly, "Liberty first and Union afterwards;" but, blazing in characters of living light on all its ample folds, as they float over the sea and over the land, and in every wind under the whole heavens, that other sentiment, dear to every true American heart, Liberty and Union, one and inseparable, now and forever!"

It is apparent that Webster, in the reconstruction of his peroration, had in mind his favorite poet Milton's description of Satan's banner, in the first book of "Paradise Lost:"

"Th' imperial ensign, which, full high advanc'd,
Shone like a meteor streaming to the wind,
With gems and golden lustre high emblaz'd,
Seraphic arms and trophies."

The employment by the orator of the words italicised, or equivalent expressions, but a single one of which was contained in the spoken peroration, shows that there was an unconscious or intentional imitation. Doubtless the passage was improved for the reader by this infusion of Milton, but whether it would have been any more effective upon the hearer, or whether the words actually spoken would

seem weak to the reader if he had not been accustomed to the printed version, is somewhat questionable. The magnificent reference to the national ensign, floating in sight over the dome of the Senate chamber, with the orator's passionate deprecation of dishonor to that flag, was the prominent idea in both, and swallowed up all mere felicities of expression. That was one of the great crises of oratory, like that moment of old, when the Athenians, fired by Demosthenes' appeals, rose as one man and cried, "let us go against Philip!" After all, it is ideas that count in oratory, and not mere words. The man who has the great ideas is not so much in need of words; to the man of few or small ideas, they are indispensable.

LAW FOR THE DOG-DAYS.

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F our recollection serves us, it was Mr. Curdle, the critical gentleman in Nicholas Nickelby, who was such a stickler for the dramatic unities. Said that acute gentleman, "the unities, sir, are a completeness — a kind of universal dovetailedness with regard to time and place a sort of general oneness, if I may be allowed so strong an expression.' It has occurred to us, in our anxious purveying for the legal taste, that we can unite legal instruction with an artistic sense of propriety, in writing upon legal topics in the "dog-days," by devoting a short chapter to dog-law, in which the books of late are very rich. Thus we preserve, if not a "dovetailedness,' at least a dog-tailedness with regard to time and place that would satisfy Mr. Curdle.

In Muller v. McKesson, 10 Hun, 44, we find a case suited to our purpose. The defendants, in their chemical factory, at Brooklyn, kept a large Siberian bloodhound as a watch-dog, chained by day, loose in the factory yard at night. It was part of the duty of the plaintiff, who was in the employ of the defendants, to open the gate of the factory yard in the morning, to admit the operatives. On the morning in question, as he was returning from the execution of his duty, he was attacked by the dog, thrown to the ground, and severely bitten on his posterior, his arm, and his ear, and his hand was permanently disabled. The dog had before this bitten the defendant's superintendent, and he had informed the defendant's general agent of the fact, and when the superintendent purchased the dog for the defendant, he was informed that the dog was bad and would bite. The jury awarded the plaintiff $1,500 damages, and this was affirmed by the General Term of the First Department. Judge Dykman delivers an interesting opinion, in which he expresses himself in terms of severity on the reprehensible dog, and draws a pleasing contrast between such ferocious animals and the useful and kind domestic animals, from which the latter may derive much satisfaction and encouragement. The judge even drops

into poetry, and professes to quote the following is bound to so secure it as to effectually prevent it

verses:

"The ox toils through the furrow,
Obedient to the goad;

The patient ass, up flinty paths,
Plods with his weary load.
With whine and bound the spaniel
His master's whistle hears;
And the sheep yields her patiently
To the loud clashing shears."

But he does not give his author, and as we have never met the lines before, we have an uneasy suspicion that the learned judge is trying to palm off some of his own verses on the profession. There is a suggestiveness in the last two lines, that confirms

us in the belief that the verses must have been written by a lawyer. We really hope the judge did not intend a sarcasm by this citation. As to the naughty dog he observes: "The dogs have done more mischief than any other domestic animals, and their

cases have been oftener before the courts, and some judges have been inclined to the opinion that if a person chooses to keep a dog that is savage and dangerous, he does so at his peril, and is liable for any injury he may do without any proof of scienter. There is great reason for holding this to be the rule, for in such a case the dog is in the class of animals that are of a ferocious nature and disposition, and ought to be looked upon the same as a lion, a tiger, or a bear." The judge might have added, that when people want to indicate that a man is going to ruin, they say he is "going to the dogs," a phrase derived from the ancient Greeks, who were wont to say this of ruined gamblers, their dice having animals instead of dots on the sides, and the lowest or losing side always a dog.

In State v. Lymus, 26 Ohio, 400; 20 Am. Rep. 772, it is held that a dog is not the subject of larceny; that it was not at common law, and is not included in the expression "goods and chattels " in the statute.

doing mischief." This is all right and just; we do not object to it; but why does the judge speak of "ferocious and overgrown dogs?" It is the undergrown dogs that do the mischief. Big dogs, like human giants, are as a rule good-natured. It is the curs and dwarfs that are dangerous. But the courts give no locus penitentiæ to dogs. If they have once bitten, the presumption is that they will go on doing so. Quite different is the ruling in regard to the dog's master. If a railroad switchman once neglects his duty, and wrecks a train, it is not negligent for the corporation to continue him in their employ, although he repeats the fault and injures the passengers. The presumption is that his forgetfulness is wisdom from experience. not a habit but an accident, and that he will learn It may be that Mr. Bergh may here find reason to insist that dogs "don't have

a fair shake."

VICARIOUS LIABILITY.

report of the select committtee on employers' liability for injuries to their servants is now in the hands of the public, and action will no doubt be taken upon it in the next session. The subject is in itself of great importance and difficulty; but it has, moreover, a special interest as a chapter in the natural history of

legal institutions, and the student whose tastes lead

him that way will find good entertainment in the evidence taken in the course of the inquiry. The committee itself was a thoroughly representative one; masters, workmen, and lawyers all had their voices in it. The witnesses who came before it covered a still wider field of learning, experience and interests. As naturally happens in such a case, their examination often became a discussion, and it is hard to imagine how a more searching discussion of the whole matter could have been insured. The most obvious result, perhaps, is to show the extreme difficulty of fixing any general rule as to liabilities of this kind on grounds of pure expediency. The committee, though appointed for a more limited object, found it impracticable to deal with that object without considering the general question of the liability of a master for his servants' acts. The rule is that a master is answerable for every thing done by the servant within the scope of his employment; not merely, be it observed, for things done in obedience to specific orders for things done in direct disobedience to them may often make the master liable. Such is the law, it is believed, of all civilized countries, and so it has long been settled in England. It is accepted without examination, and gives rise to little complaint; yet it is curious to see, when one does examine it, how hard it is to find reasons for it. The committee had witnesses before them whose strong interest it was to do so, their contention be

The unpopular dog appears again in Meibus v. Dodge, 38 Wis. 300; 20 Am. Rep. 6. The defendant, having driven to Waterloo, left his sleigh in the street in charge of a dog, which he knew was ferocious and accustomed to bite people. The plaintiff, an infant of seven years, came to the sleigh, and inspired by the universal passion of male infants for whips, meddled with the defendant's whip. The innocent babe incontinently sustained a Waterloo defeat, for the dog bit him, just two hundred and fifty dollars' worth, the jury said, and this was affirmed. Judge Cole reviews the case, and quotes from an opinion by Chief Justice Redfield (Browning v. Carpenter, 26 Vt. 638), where a ferocious dog at large was pronounced hostis communis. Now we think that our court, in pronouncing such radical doctrine against dogs, ought to pronounce it in our own tongue, so that the offending animal may have fair warning; at all events, in dog-Latin. Judge Redfield thinks that "one who keeps a savage dog

that the rule ought to be applied without limit. For a limit in modern times has been set to it by the judicial doctrine that a man who engages himself in an employment where accidents may happen must be presumed to take his wages as covering the risk of accidents in the course of the service, though they may be due to such acts of another servant as in the case of a stranger would give a right of action against the employer. It is possible to object to this limitation

on various grounds. The simplest, and the only one taken on the side of the workmen by their advocates, is that the general rule of liability is just, and there is no reason for limiting it. Why they hold the general rule to be just is not so easy to discover; but their prevailing idea seems to be that whoever is injured without his own fault has a natural right to be indemnified by somebody, and the employer ought to be liable, because he is as a rule the only person who can pay, and because the work is carried on for his profit. If it is the essence of conservatism to defend against all innovations an established rule for which it is not easy to account, it must be said that the spokesmen of the trade unions have in this case adopted an eminently conservative line of argument. On the other hand, those who spoke from the employers' point of view saw the natural justice of the case quite differently, and professed themselves unable to perceive why one man should be liable for another man's negligence. It is possible, again, to disapprove of the limitation without approving of the rule. One may say that the rule is itself open to dispute, but so long as it is in possession it ought not to be encroached upon by an artificial exception founded on a fictitious contract. This was the view of Lord Justice Brett, who spoke of the employers' present immunity in the class of cases specially before the committee as a bad exception to a bad law. But in answer to this it may be said that the rule itself is an exception from the general principle that a man is liable only for his own acts, and that the supposed exception only marks the frontier line maintained by the general law. This was in substance the opinion of Lord Justice Bramwell, and is adopted by the report of the committee. Once more, it is quite possible to lay the chief weight of the objection on the manner in which the limitation has been introduced. Whether an existing rule of law be good or bad, it is startling to any but a strictly legal mind to find it cut down by a series of quite modern decisions in such a way as to make it practically inoperative in the very cases where its application would otherwise be most important, and where the reasons of policy on which the rule is supposed to be founded appear to have the greatest force. So strong an instance of judicial legislation is open in a more than common degree to all the usual topics of animadversion; and the objection on this head is very decidedly expressed in the draft report prepared by Mr. Lowe, which, though rejected by the committee in favor of Sir H. Jackson's milder and more lawyerlike composition, was supported by a considerable minority. The courts have indeed not only widened the exception since the first introduction of it, but have shifted its ground. They started from a not very intelligible theory of "common employment," the real meaning of which seems to be that a workman ought to know more about his fellow-workman than the master does. Later cases have abandoned this position to take up in its stead the fiction of an implied contract not to claim indemnity, and have extended the category of fellow-workmen till it includes persons who cannot be supposed to have the least knowledge of one another's skill or control of one another's actions. The proposal at which the committee has now arrived is in effect to make a master who delegates his general authority liable for the acts and defaults of his delegates as well as his own. This is a modest compromise, which does not affect to settle any thing in principle, but has the merit of

striking at one distinct evil that arises from the present state of things. A master being liable, one may practically say, only for his own actual negligence and not for that of his delegates, the law as it stands puts a premium on his giving as little personal attention as he can to the management of his own business; and this unexpected and certainly undesirable result would be removed by the change proposed.

It is a significant fact, and seems hardly to have received sufficient attention, that while the rule of vicarious liability prevails under all civilized laws, the exception is unknown except in English and American courts. It has been attempted indeed, but without success, to introduce it in France. The question still remains where the rule came from. A modern lawyer represents it to himself as allied to the doctrines of agency. The agent represents the principal, and the principal must answer for his acts. It is easy to see, however, that there is a fallacy in extending this from transactions where the principal has invested the agent with real or apparent authority to bind him, and persons deal with the agent on the faith of such authority, to cases where no such authority exists and there is no question of giving credit at all. A duty to particular persons in particular relations is thus expanded into a duty to all the world. Such reasoning is in truth one of the many after-thoughts invented to account for institutions whose real origin has been forgotten. In this case there is reason to believe that the principle of vicarious liability is really a survival from an extremely archaic stage of jurisprudence, and is grounded on ways of thinking which at this day can hardly be found existing save among primitive nations. The old Roman law gives us a fairly trustworthy clue. There the master of the family was liable for damage done by his slave, by a descendant under his power, or by any animal or thing of which he was owner; and this apart from the question whether he was himself in fault. But in every case he could discharge himself from further liability by delivering up (noxo dedere) the offending person, animal, or thing to the injured party; moreover, the liability was not personal, but ran with the ownership or possession of the offending body. If A's slaves damaged B's property, and A sold him to C before action brought, B had to sue not A but C. In later times new remedies were provided for injuries caused by malice or negligence, and in this and other ways large exceptions were made to the old law, for which, so far as it remained, the Roman lawyers invented more or less plausible reasons adapted to modern ideas, very much as English lawyers had done. But even in the developed Roman system there is enough to show that the origin of the rule is probably to be sought (as lately pointed out by an ingenious American writer) in the primitive notion that liability attaches directly to the thing doing the damage; or, to put it in what may be conjectured to be its true primitive form, that the thing itself is guilty. Much may be found to confirm this conjecture in archaic institutions elsewhere; among others the forfeiture of inanimate things causing death under the name of deodands, which was part of English law within living memory. The treatment of things as responsible is the expression in ancient law of the doctrine, belief, or habit of thought called animism, which, whether strictly primitive or not, is found deeply rooted among the lower races of mankind. The fact is very singular, if so it is, that a legal doctrine important in itself, and made of espe

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