Imágenes de páginas

what actually exists. This is a specimen of his And Grover, J., in Pollett v. Long, supra, at p. 206, language: “King Mob has there a warning. He speaks doubtfully of the authority of Ryan v. N. Y. will not allow himself to be spoken to, except in Cent. R. R. Co. See also as criticising the same accents of adulation and assent, and if you approach cases: Perley v. Eastern R. R. Co., 98 Mass. 414him in any other tone, the only answer which he 419; Kellogg v. Chicago and Northwestern R. R. Co., deigns to make to you is a reassertion of his former 26 Wis. 223; 7 Am. Rep. 69; Fent v. Toledo, Peoria position as confident and uncompromising as if it and Wabash R. R. Co., 59 Ill. 349-359; Grand proceeded from the Comte de Chambord or Pio Nono | Trunk R. R. Co. v. Richardson, 91 U. S. Rep. 454himself. Strange and almost incredible as it seems | 471. And the doctrine in Pennsylvania R. R. Co. to us the sad and instructive fact is attested by v. Kerr has been much shaken in Pennsylvania by writers of the very highest authority, native as well the recent decision of Pennsylvania R. R. Co. v. as foreign, that this democratic country has shut Hope, 80 Penn. St. 373. As to the general principle itself out from the advantages of free political dis- see Hart v. West. R. R. Co., 13 Metc. 99; Hookset v. cussion so effectually, that it is perhaps not too much Concord R. R. Co., 38 N. H. 242; Smith v. Lond. and to say, that no monarchical state in Europe ever | S. W. R. R. Co., L. R., 5 C. P. 98, and note to case was as impervious to the voice of counsel from 1 7 Am. Rep. 80. without as America has been during the present In Tancil v. Seaton recently decided by the Sucentury." If this is the kind of stuff that is taught

preme Court of Appeals of Virginia, the action was to the students of law at the University of Glasgow, I by the finder of a bank note against a bailee to we trust that that institution is not a representative whom he delivered it for safe-keeping, and who reone in Scotland.

fused to redeliver it on demand. The action was NOTES OF CASES.

defended upon the ground, among others, that the In the case of Del., Lack. and West. R. R. Co. v.

title of the plaintiff, acquired by the finding (which 1 Salmon, 10 Vroom, 299, recently decided by the

was communicated to defendant at the time the note Court of Errors and Appeals in New Jersey, it is

was delivered to him), was not sufficient to support held that where one by negligence or misconduct

the action. The court held that the defense was not occasions a fire on his premises, or the premises of

sustainable and that the title of the finder was a third person, which spreads from thence to plain

good against every one but the true owner. The

general rule that the finder of lost goods has title tiff's property, and causes an injury, the injury is not, as a legal proposition, too far removed from his

against every one except the owner, was claimed by

defendant not to be applicable to choses in action, negligent act to involve him in legal liability. This is in direct conflict with the doctrine maintained in

and the case of McLaughlin v. Waite, 9 Cow. 670;

affirmed 5 Wend. 404, was cited as sustaining this Pennsylvania R. R. Co. v. Kerr, 1 Am. Rep. 431; 62

doctrine. In that case it was held that a lottery Penn. St. 353; and Ryan v. N. Y. Cent. R. R. Co., 35 N. Y. 210. These cases the court say cannot be

| ticket vendor's certificate is not property, but only

an evidence of a right to property, that it does not sustained by principle or authority. This is undoubtedly true, the cases being numerous in which

belong to the finder so as to enable him to recover of

the vendor on it. This would not, however, authorresponsibility is laid upon the original wrong

ize the application of a similar rule to bank notes, doer, though intervening agencies, without his

which are by common consent treated as money. fault, have interposed. Scott v. Sheppard, 2 W. Bl.

Miller v. Race, 1 Burr. 457. The case of Bridges v. 892; Sneesby v. London and York R. Co., L. R., 9 Q. B. 263; Romney Marsh v. Trinity House, L. R., 5

Harksworth, 7 Eng. L. & Eq. 424, very strongly

resembles the principal one. The plaintiff in that Exch, 204; 8. C., L. R., 7 Exch. 247; George v. Skivington, L. R., 5 Exch. 1; Collins v. Middle Lerel

case having picked up from the floor of the shop of Commrs, L. R., 4 C. P. 279; The George and Richard,

defendant a parcel containing bank notes, handed

them over to defendant to keep until the owner L. R., 3 A. & F. 466; Byrne v. Wilson, 15 Irish L.

should claim them. They were advertised by the Rep. 332; Pollett v. Long, 56 N. Y. 200; Powell v.

defendant, but no one appearing to claim them and Deveney, 3 Cush. 300; Vanderburgh v. Truax, 4

three years having elapsed, plaintiff requested deDenio, 464; Thomas v. Winchester, 6 N. Y. 397; fendant to return them, tendering the cost of the Carter v. Torone, 103 Mass. 507. And the two cases | advertisements and offering an indemnity. The cited as maintaining a doctrine contrary to that of

defendant having refused to return them, action

was brought, and it was decided that plaintiff was the principal case, have been to some extent ques

entitled to the notes as against defendant. See as tioned in New York. In Webb v. R. W. and 0. R. R. sustaining the general rule mentioned Avery v. DelaCo., 10 Am. Rep. 389; 49 N. Y., at p. 428, Folger, J., | mire, Str. Rep. 505; Brandon v. Huntsrille Bank, 1 says: “I am of the opinion that on the disposition of

Stew. (Ala.) 320; Mattheus v. Harsell, 1 E. D. Smith,

| 393. N. Y. & Harlem R. R. Co. v. llaurs, 56 N. Y. the case before us, we are not to be controlled by the

| 176, is an instructive case upon this subject, though authority of the case in 35 N. Y., more than we are the precise point involved in the principal case was by that of the long line of cases which preceded it.” | not at issue.

self some paper on the classics, translate it aloud RUFUS CHOATE.

and continuously in English prose.” As to Patrick VI.

Henry, we accept all the praise that can be bestowed CORRESPONDENT. long intimate with Mr. | consistently with nature and with recorded experi1 Choate, and having the best means of forming ence. But it may be observed that, like many

ns as to his natural gifts, calls our attention fluent speakers, he had acquired great experience to a work with an auriferous title, which we had by talking “an infinite deal of nothing" up to the overlooked.* On taking up the book we learn that hour when the vision of our independence, to be Mr. Choate was “the first and foremost of made achieved by war, opened before him as an apocalypse, orators,” but “was not a natural orator - a born transformed his spirit and gave a prophetic tone to orator”though “Chatham and Patrick Henry his utterances. As to Henry Clay, we need only were natural orators of superior order, and Henry | recall his efforts at the debating society to cultivate Clay was of the same school."

a habit of speaking, and his statement made long The statement that Choate was not a natural after to a class of students, that he owed his “sucorator would disturb no one who could accept the cess in life to the habit, early formed and for some suggestion that Doctor Johnson was not a natural years continued, of reading daily in a book of hiscritic, or Faraday a born chemist. The inference tory or science and declaiming the substance of would be that each of them had to “toil terribly”.

hat each of them had to “ toil terribly " what he had read in some solitary place." Mr. in climbing up to the eminence attained. The idea Clay was not peculiar. Wheaton, in his Life of is as simple as that the tillage of the soil makes William Pinkney, says that “he always continued possible the harvest. But we are disturbed when to declaim in private." told that some men - Chatham, Henry and Clay - But in the chapter “On the Study of Forensic as distinguished from Choate, were natural or born

Eloquence,” which Mr. Isaac Grant Thompson has orators.

inserted in his edition of Warren's Law Studies — English authors have paid due attention to the perfecting the work by the scholarly treatment of preparatory studies of Lord Chatham, and of his an important topic which Warren had neglected — son. Nature, prodigal in gifts, had left to each illustrative instances are given. He regards “the the common legacy of toil as the condition of his opinion that excellence in speaking is a gift of becoming an orator. We are told that “the best nature, and not the result of patient and persistent clue to Pitt's (Chatham's) own mental tasks, more

labor and study,” as mischievous and unfortunate, especially in the field of oratory, is afforded by | and happily enforces that view by referring to the those which he enjoined to his favorite son.” We studious efforts of Cicero, Chatham and Fox, are also told, on the authority of Lord Stanhope,

Curran, Choate and others. Of Choate he says: “that the son ascribed his lucid order of reasoning

“Forensic rhetoric was the great study of his life, to his early study of the Aristotelian logic, and his

and he pursued it with a patience, a steadiness, a ready choice of words to his father's practice in

zeal, equal to that of Chatham and Curran." He making him every day, after reading over to him

reminds us that Murray, afterward Lord Mansfield,

carried on the study of oratory with the utmost * In his letter, Prof. Sanborn says: “Col. Parker, in his

zeal, and that a friend had caught him in “the act •Golden Age of American Orators,' a work much read by

of practicing before a glass, while Pope (the poet) students, attempts to prove that Mr. Choate was not a sat by to aid him, in the character of an instrucnatural orator' like Henry and Clay. I think that Mr.

tor;" and adds, “Such are the arts by which are Choate's early history refutes that theory. I learned from Prof. Shurtleff, his teacher, something of his eloquence in

produced those results that the uninitiated ascribe college.” He then gives an extract from Choate's Valedic

to genius.” tory Address, which, so far as I can judge, indicates the

This matter is of present interest, as we would freedom and range of thought, and the felicity of expression that might distinguish an orator " to the manner

not have the student adopt the notion that Mr. born," and adds: “In this brief paragraph are tbe key Choate was goaded on in his studies by a sense of notes of his life, attachment to friends, love of learning

want of which other great orators had not been and admiration of nature." The professor also mentions two circumstances which tend to illustrate the character of

conscious. Nor should we regard the statement the address and the effect of its delivery, from which it that Chatham and others were natural orators, as might be inferred that if nature ever "tried her 'prentice

signifying any thing more than that they possessed hand" in fashioning a complete orator, she did so with young Choate. He says that when Choate spoke “his pathos

gifts favorable to the cultivation of eloquence. A drew tears from many who were not used to the melting ready command of language, fine and quick percepmood.” Also, that “one rustic maiden was there from

tion, delicate wit and fancy, a fervid imagination, Norwich, Vt. She was all ears, eyes and heart; she gazed, Joved and wept. On the following Monday, while bending

an exquisite sense of the beautiful, a voice sweetly over her wash-tub, she said, “Mother, you can't think how tormenting the hearer, even in the remembrance of pretty that young man, who had the valedictory, spoke. He it, a graceful and impressive manner — all of which was so interesting that I cried; and, law!' she added, holding up her checked apron to her eyes, I can't help

Mr. Choate had — however important as prerequicrying now, only thinking on 't.'".

sites, do not qualify the orator. It is his office to

instruct, persuade and convince; but without study in varied forms by great teachers from Quintilian there can be no knowledge, without knowledge no down. Doctor Johnson and Dean Swift concur in argument, without argument no real influence in referring to a perfect style as “proper words in the discussion and disposition of public affairs. In proper places." In perfecting their own works the courts, in legislative and popular assemblies, many distinguished authors seem to have accepted the question sure to arise is whether the speaker is that as a definition. When Gibbon wrote over and master of his subject in its substance, details and over the first chapter of his history, and Brougham relations. The persons addressed may distinguish the conclusion of his speech in the Queen's case, immature from ripe thoughts; information from they were not changing the facts or sentiments, but knowledge; mere impressions from experience. striving, by choice words, to improve the style. Mr. They know that while the voice may be trained Canning, who, like Macaulay, was continually corfor oral discourse, as it may be for music, the mind recting and refining, is said “to have chosen his should have a corresponding culture. Many of words for the sweetness of their sound, and arranged them, pitiless as critics, would accept the state- his periods for the melody of their cadence." That ment of Cicero that “the orator must possess the Byron found it difficult to satisfy himself in the knowledge of many sciences, without which a mere selection of words, appears from the explanatory flow of words is vain,” and would have sympathized notes to an approved edition of his poems. Frewith Doctor Johnson when he checked the praise quent changes were made. In one instance which bestowed on a fine speaker, not often heard, as hav- we recall, he erased a word and substituted another, ing great resources: “You cannot know as yet; the then rejected the latter and restored the former; pump works well, but how are we to know whether still in doubt, he wrote below, “ask Gifford.” it is supplied by a spring or a reservoir ?” Mr. Emerson must have approved of Montaigne's choice, Choate's views of the study proper to the orator | or he would not have said, “Cut these words and were not less exacting. His ideal of excellence in they bleed; they are vascular and alive." Some of oratory, considering it as one of the fine arts, may Mr. Webster's imposing figures of speech had been have been so high that he never could have fully thought over, prepared to the last syllable; hence satisfied his own aspirations. But in his lectures the eulogy that “each word weighed a ton.” and addresses his sentiments are given in the spirit Chatham felt the importance of the study when he of an unfaltering disciple; his precepts have an went twice through Bailey's Dictionary, carefully electric touch - glow like stars in the firmament of considering every word. So, also, did Choate when thought. He knew what he taught in large measure he formed the habit of studying the dictionary page and in minute details. He fortifies himself by ap by page, as mentioned by Mr. Gillett. But the peals to history, to experience, and to natural laws. question as to the best use of words appeals to a The moral elements in his topics, however obscure, larger and riper experience. Writers and speakers never elude his grasp; the most rugged event or differ in that use as they differ in taste, culture, and feature he touches palpitates as with a spirit of life moods of mind, in perception and judgment, but and beauty. The philosophy of history is taught they would agree that the strength, grace and suggestively, not by a tedious process, but flashed | beauty of the words used depend upon the harmony upon the page as a revelation. His illustrations of their relations to each other, and to the thoughts often have a logical flavor; his inferences the cer- and sentiments expressed. tainty of mathematical deductions. The student In a splendid outburst of declamation Mr. Choate may, therefore, follow him with assured steps. In-refers to the acquisitions and oratorical powers of deed, no student should fail to study addresses like Mr. Adams, "the old man eloquent," and finds him those on “The power of a state developed by men- using “the happiest word, the aptest literary illustal culture;” on “The conservative force of the tration, the exact detail, the precise rhetorical inAmerican bar," and on “ The eloquence of revolu- strument the case demands.” Mr. Choate had a tionary periods.” He who has given his days and clear conception of the studies by which such a nights to Demosthenes and Cicero, Thucydides and power might possibly be acquired. He appears to Tacitus, would find his apprehensions quickened, have read the ancient and the modern histories with the wealth he has garnered up in his mind enriched constant reference to the influences, near or reby the spirit of Mr. Choate's expositions.

mote, which led to or qualified events. He had Mr. Choate's solicitude as to the choice and use studied the literature of Greece and Rome as critiof words in the culture of style, is known to have cally as that of later periods; loved Cicero and been great. That he was not peculiar in this branch Burke about the same. In such and in related of study appears from familiar instances. Cicero studies he had a theory as exacting as that anbad taught that the orator's “style of speaking nounced by Hugh Miller when he said, in substance, must be formed not only by the choice of words, that an anatomical acquaintance with the bones and but by the skillful arrangement and construction muscles is necessary to the painter who represents of sentences.” That instruction has been repeated 'the human figure, and that he who describes natural scenery should know the science and strata of the erence to that great man is most attractive to me, rocks. So, after Mr. Choate could read the Greek and I could not resist the impulse of writing a lecand take in the sense with ease, he reads, pen in ture not long ago, on his brilliant career, that I hand, and with the dictionaries before him. Our might say something to young students, inadequate best Greek scholars may need such aid occasionally; though it might be, that would perhaps incite them even Porson is said to have confessed that he could by his example of untiring industry to a more ennot read Greek as he could his newspaper. But thusiastic pursuit of knowledge and a more earnest Mr. Choate's purpose was to know the relation and study of the art of eloquence. That lecture has alsignificance of each word, as well as to catch the ready been delivered in various colleges and law spirit and style of the author, so even reading thus schools, and I hope has led some of my listeners to did not suffice. He says, “Translation daily is read Prof. Brown's memoir of our great advocate, manifestly my only means of keeping up my Eng- your own papers in the Law JOURNAL, and the remilish. This I practice in my post-prandial readings, niscences of Dr. Storrs, Mr. Carpenter and others but I fear it is not quite exacting, laborious and who knew and appreciated him. stimulant enough. I have a pretty strong impres- I wish I had the opportunity to comply more sion that the only sufficient task would be Demos- closely with your kind request, and send a better thenes, severely, critically rendered, yet with the response to your invitation. I can only, before getutmost striving of words, style, melody, volume of ting off for the summer, send you this fragmentary sound, and impression.” Again be says: “But epistle. everywhere, under whatever form, style, manner, Mr. Choate is now, to employ Landor's significant are to be assiduously cultivated and carefully line, adapted to the subject.” Again, and as to the pre “Beyond the arrows, shouts and views of nien,” cise and reflected benefits: “I think I do not over

and his supreme qualities are only beginning to be estimate the transcendent value and power, as an

apparent in their grander aspects. As a lawyer instrument of persuasive speech, of what may be ranking among the highest; as an eloquent described as the best language -- that which is the

advocate second not even to Lord Erskine, very best suited to the exact demand of the dis

whom he far surpassed in scholarship; as a patriot course just where it is employed. Every word in devoted to public duty solely, he is now taking his the language, by turns, and in the circle of revolv

place without a rival and without a cavil. Years ing oratorical exigencies and tasks, becomes pre ago I hung up his portrait in the little room we call cisely the right one word, and must be used, with “our library,” for a constant reminder of the long one exception, that of immodest ones.”

continued enjoyment it was my own good fortune He further says: “How such a language — such

to have derived from the kind-hearted Mentor and an English -- is to be attained is plain. It is by 1 friend. To have had the privilege of living in the reading and by hearing — reading the best books, same city with him for so many years, of hearing hearing the most accomplished speakers." In a let- the sound of his voice in public and in private for a ter of advice to a student - Richard S. Storrs, Jr.- quarter of a century, was indeed of itself an educahe says: “I would read every day one page at least, tion. To the young men of my time, who lived so more if you can, in some fine English writer, solely | long under the spell of his eloquence, he was an infor elegant style and expression. William Pinkney spirer, an initiator, for he taught us by his example said to a friend of mine, he never read a fine sen to reverence and seek whatever was best in learning tence in any author without committing it to mem | and excellent in thought and character. As young ory.' The result was decidedly the most splendid students of literature, eager to listen and acquire if and most powerful English spoken style I ever we could, we found a new power created within us heard."

by contact even with such a teacher and guide. To Such was the result with Mr. Choate himself. No follow him, to wait upon his footsteps through the modern author owed less to borrowed thoughts or courts of law, the senate or the lecture room, was in forms of expression, or, in the higher, better, artis. a certain sense to be tic sense, more to the ministrations of other minds.

" From unreflecting ignorance preserved." But the benefits were absorbed by a process as gradual, as natural, if not as insensible as those by

His own great acquirements taught us to nurse that which trees gather nutriment from the sun, air, rain,

noble self-discontent which points and leads to a and from the generous soil.

J. N.

loftier region of culture, and impelled us to aspirations we had never dreamed of until his affluent

genius led the way. Like Charles Fox, he was born Boston, June 7, 1877.

with the oratorical temperament, and so he magnetMY DEAR SIRI thank you for those numbers ofized all the younger men who flocked about him, THE ALBANY LAW JOURNAL containing your inter- eager to be instructed. I do not believe the “highesting papers on Mr. Choate. Every thing with ref- | placed personage" ever lived in any community who

had more affection and reverence from the youth of homage ; the very least as feeling her care, and the his time than Mr. Choate. There were about him greatest as not exempted from her power.” One of habitually that diffusive love and tenderness which Choate's former office students once said to him : make idolatry possible even among one's contempo “The more I get into practice the more I like the raries. While he electrified us, he called us at the law.” “Like it !” said Choate ; “of course you do. same time by our Christian names; and when he There is nothing else for any man of intellect to beckoned us to come, we dared and delighted to like!” This was said in that fine frenzy of exagstand by his side and listen. His willing and en geration which he sometimes delighted in, but no dearing helpfulness made him beloved by his in young man could hear him discourse of jurispruferiors as few men of his conspicuous eminence ever dence and not wish to join the ranks. Law was the were before, and one could not approach him and banner of his pride; the flux and reflux of party remain unmoved, or only partially attracted. You strife were distasteful to every fibre of his intellect, could not meet him on the street even without hav and he always gave us to understand that he considing a fresh impulse given to your circulation. Dur ered his profession worthy of all the hope of ambiing the period when he took early morning walks, tion, and all the aspirations for excellence. At the some of us, mere boys at that time, loving the sight bar Mr. Choate towered superior to every kind of of the man and the music of his voice, used to be jealousy, of suspicion, of malevolence ; to every on his track, watching for him on his matutinal | narrow and sordid motive, to all the meaner trepidarounds. As he came sailing into view,

tions of mortality. He was by nature a gentleman, "On broad, Imperial wing,"

and he had no petty vanities, either public or priwith that superb and natural gait so easily recog vate. He was indeed an inspired orator. What nized by those who knew him,

power, what tenderness, what magnetism pervaded “Far off his coming shone."

his utterances! His voice vibrated with every sentiAs he swung himself past, he would drop into our ment, every impulse of beauty and wisdom. He ran greedy ears some healthy, exhilarating quotation,

over the whole gamut of expression at will. When fresh from the fount of song; some golden sentence

he spoke of flowers his words seemed to have the suited to the day and the hour; something ample very perfume of flowers in them, and when he and suggestive, that would linger in our memories painted the ocean, which he loved so fondly, his and haunt our young imaginations years afterward,

tone was as the scent of the sea when the wind influencing perhaps our whole lives onward.

blows the foam in our faces. As Churchill said of Happy the youth who was occasionally privileged | Garrick, he also had indeed to walk with him on such occasions,

“Strange powers that lie “ Under the opening eyelids of the morn,"

Within the magic circle of his eye." for then he would discuss perhaps in his deep and If he habitually composed for the ear more than for never-to-be-forgotten tones of adıniration the lofty the eye, it was because his victories were to be won Homeric poems; quote the divine and to him familiar face to face with his fellow men. I have heard him words of Plato; dilate with a kindred rapture over

argue a hundred cases, perhaps, large and small, and some memorable passage of Plutarch, or hold up for

he always seemed alike invincible, - as if no mortal counsel and admonition some of the sublimest in power could take his verdict from him. His manspirations of the Bible. Well might a young man,

ner to the opposing counsel was full of courtesy and thus enchanted, exclaim with Comus:

conciliation, but if that counsel became arrogant “Oh, such a sacred and home-felt delight,

and insulting, he would slay him with a sentence so Such sober certainty of waking bliss

full of suavity and keenness that the unmannerly I never heard till now!

victim never knew what killed him. He seemed ever on the alert to quicken and inspire There were uninstructed and unsympathetic listhought in the heart and understanding of the teners, of course, who described Mr. Choate as young. I remember, on the eve of sailing on my declamatory, and accused him of being over-worded, first brief visit to Europe, he passed me on the stairs and over-colored, — “driving a substantive and at a crowded reception, and whispered as he went | six," as they called it-but those same platitudinous by: “Don't fail, my young friend, if you go near it dwellers in the twilight of the mind would no doubt in your travels, to pause at the grave of Erasmus quarrel with the tints in Milton's "Allegro," and find for me."

Collins's “Ode to the Passions” highly improper. It was dangerous for any young man, not a student Mr. Choate was no doubt rich and exuberant in his at law, to hear him discourse of the profession as he style, but who would not prefer the leap of the torfully and solemnly believed in it, accepting as he rent to the stagnation of the swamp? It was truly did the splendid metaphor of Hooker – “Her seat said by Mr. Everett in Faneuil Hall at the sad hour of the bosom of God ; her voice the harmony of the our sharp bereavement in 1859, that with such enworld ; all things in heaven and earth doing her | dowments as Mr. Choate possessed, he could fill no

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