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a warning and command to her subjects to do the very thing that we insist they were bound to do, and the very thing and only thing which we had a right to insist that they should do. The fact that the rebels were " slavemongers" (to use the classical expression of Mr. Sumner) has nothing to do with the matter. So far as the obligation of neutrality was concerned, England placed both combatant parties upon equal ground. If she had done otherwise, it would not have been neutrality; if any thing in the time and manner of issuing the proclamation justifies us in saying that it was a premature concession, "a hasty recognition," we may have had cause to take offence: but it is difficult to conceive how it can be made the subject of a treaty. It cannot be paid for in money; it is too late now to resent it by a declaration of war; it is sheer absurdity to talk of retraction or apology. There is absolutely nothing that we can ask the British government to do about it,— and it is impossible to understand what Mr. Sumner proposes that we should do as to this (as he seems to consider it) most important item in our list of wrongs.
By far the greatest part of the wrong which England inflicted upon us during our late struggle, is one which money cannot pay for, and which no treaty can adjust. When our rebellion, unprovoked and unreasonable as we considered it, first broke out, we flattered ourselves that we were upholding lawful authority against revolutionary violence and disorganization; that the world generally would understand that our disturbances had their origin in the domestic conflict of opinion in this country on the subject of slavery; that it was also universally known that the entire secession movement was in the interest of slavery as a permanent and dominant national interest; and that although, from our position, we claimed only to uphold and maintain the Constitution, and the existence and authority of the Union under it, and so were not at liberty directly to assail slavery in its local strongholds, we at the North at least deplored its existence, and would be glad to witness its downfall. We supposed that England also was sincerely, and on principle, a foe to slavery; but we were not at all prepared for the discovery that she was a thousand times more a foe to democracy. Nothing could have been more dismal and overwhelming than our disappointment at finding that all the sympathies of the British public and all the moral weight of British opinion were- on the side of our foes. Of course, it was no matter of surprise that a large portion of the people of Great Britain, imperfectly informed of the merits of the case, and perhaps caring about them but little, should have bestowed their applause and sympathy upon the party which seemed numerically the weaker, yet defended its cause with such spirit, and with such a brilliant promise of success. But the difficulty lay much deeper. The cry everywhere throughout the kingdom was that the great republic had broken down, and all England clapped its hands with delight. England rejoiced and triumphed in the prospect of our downfall without reserve and without disguise. We were everywhere denounced as mere wrong-doers. Our efforts to defend our Union and preserve our nationality were stigmatized everywhere as unjustifiable and unchristian obstinacy, in prolonging a hopeless and meaningless, and for that reason a brutal and inhuman, war. There was not a word of encouragement or sympathy for us (with a very few honorable exceptions) from the periodical press — from the peerage — from parliament—the clergy — the army—the navy — or the commercial classes. Bankers hastened to lend their money to the rebels, and the confederate loan was current on the London Exchange at a higher rate than that of the United States. So far as the public opinion of a country can be expressed in any mode intelligible to other nations, it was with substantial unanimity against us, and in favor of our enemies. The whole moral weight of England was upon the side of the Confederates; and she did about all that she could, short of actually declaring war against the United States, to help them gain the victory over us.
But all these things, offensive, injurious, and insulting as they were, have very little to do with any international claims or grievances that can be made the subject of a negotiation or arbitration. They show that the state of public opinion in England was all wrong; but we do not claim to call the government of that country to account for errors of that kind. We have happily passed the point of time when the mistaken public sentiment of Great Britain gave us any cause for alarm. The only point of view in which it is now a matter of any practical importance, is, that it throws some light upon the animus which inspired their languid and feeble efforts to prevent the escape of the Alabama from the port of Liverpool. It is not at all strange, in such a state of public sentiment, that the official telegram to Liverpool for the arrest of that vessel should unluckily fail to arrive till after office hours on a Saturday afternoon. It throws some light upon Lord Russell's insolent inquiry, addressed to Mr. Adams, whether it is common in America to arrest a vessel on a charge of an intended breach of neutral law without proof. The victorious conclusion of our great contest is a sufficient answer to all cavils, to all reproaches and insults; to all the shouts of triumph over our anticipated downfall. We can bear, without a murmur, the recollection that we had not a single friend upon the bench of bishops, and that respectable bankers invested in the confederate loan. We are willing that the high church-and-state tory should dislike our institutions, if he should feel so inclined, and should speak of them in any terms that he may happen to choose. But there is a portion of the matter in dispute between the two nations which admits of being made the subject of a treaty, and which can be settled by an arbitration. It is no sufficient reason for refusing to go so far, by treaty and by arbitration on fair and equitable principles, that there were also certain other unpleasant matters which are not the subjects of a negotiation, and do not admit of being disposed of by treaty. It is something, that, so far as the claim for damages is concerned, Great Britain, to use a phrase often heard in the New England courthouses, has offered "to leave it out to men," — to submit the question to a fair and impartial arbitration. Payment of the money under such circumstances would be an acknowledgment of the wrong, and apparently all the practical reparation for it that can be made. The offer to submit to arbitration is very little, if at all, short of it. conduit, and afterwards the lessor, during the lease, sell the house to one, and the land wherein the conduit is to another, and after the lease determines, he who hath the land wherein tho conduit is may disturb the other in the using thereof, and may break it, because it was not erected by one who had a permanent estate or inheritance, nor made one by the occupation or usage of them together by him who had the inheritance. So it is if a disseisor of a house and land erect such a conduit, and the disseisee reenter, not taking conusance of any such erection, nor using it, but presently after his re-entry sells the house to one and the land to another; he who hath the land is not compellable to suffer the other to enjoy the conduit. But in the principal case, by reason of the mispleading therein, there was not any judgment given."
The position in which England stands at this moment is substantially this: She offers to make full reparation for all actual spoliations committed in violation of her neutral obligations, resulting from the want of suitable and proper legal provision for enforcing those obligations upon her subjects, or from the inadequate administration of such law in that behalf as was in existence; she has also invited us to join her in such new legislation, as to the duties of neutrals, as experience has shown to be needful. Under the circumstances, what more ought we to demand? and what other basis of negotiation does the nature of the case admit of?
EASEMENTS BY IMPLIED GRANT.
The decision of the English Court of Exchequer, in 1857, in the case of Pyer v. Carter,1 was the beginning of a controversy on the subject of how far easements can be acquired by implied grant, of which there would seem to be no immediate prospect of settlement. If that case goes beyond the old doctrine of the common law, and can only be supported, as many contend, upon principles derived from the French code, it is still certain that both among textwriters and judges on each side of the Atlantic there has been a strong disposition to accept it as establishing a doctrine necessary in the innumerable uses to which real property is applied at the present day, and which demand a broader and more tolerant protection than the old law of real property would accord to them. On the other hand, very able and eminent judges, like Lord Westbury, .in England, and Mr. Justice Hoar,2 in this country, look upon the new doctrine with little favor, and have greatly shaken the authority of the original decision, which at one time seemed likely to be generally acquiesced in.
The leading case on the subject of this class of easements is that of Nicholas v. Chamberlain? It was an action of trespass; and, as the report is quite brief, we shall quote it in full: —
"It was held by all the court, upon demurrer, that, if one erect a house, and build a conduit thereto in another part of his land, and convey water by pipes to the house, and afterward sell the house with the appurtenances, excepting the land, or sell the land to another, reserving to himself the house, the conduit and pipes pass with the house, because it is necessary el quasi appendant thereto; and he shall have liberty, by law, to dig in the land for amending the pipes or making them new, as the case may require. So it is if lessee for years of a house and laud erect a conduit upon the land, and after the term determines the lessor occupies them together for a time, and afterwards sells the house with the appurtenances to one, and the land to another, the vendee shall have the conduit and pipes, and liberty to amend them.
"But by Popham, Chief Justice, if the lessee erect such a
1 1 H. & N. 916. 2 Now Attorney-General of the United States.
S Cro. Jac. 121.
The decision in Nicholas v. Chamberlain has been recognized as binding authority in innumerable cases, and, to our knowledge, has never been questioned.1 It is necessary, therefore, that we should settle what that case actually decided. Now it is apparent that the easement in question was a permanent structure, which was considered as necessary to the house, and that for this reason the court regarded it as an appurtenance of the house; so that whether the house was sold and the land reserved, or the land sold and the house reserved, the conduit would pass with the house, " because it is necessary et quasi appendant thereto ; " " a decision," says Lord Westbury,2 " which merely amounts to this, that the reservation, like the grant of a house, is a reservation or grant of it with its appurtenances."3 It was an appurtenance, because it was necessary to the use and enjoyment of the house.
Two classes of cases frequently treated under the law of easements rest on principles in the one class so well settled, and in the other so clearly distinguishable from those we are now discussing, that they can be disposed of in a few words. The first is, that of ways of necessity. If a man sells a parcel of land to another, wholly surrounded by other land of his own, the purchaser has a right of way to his own land as incident to the grant. Quando
l Pyer v. Carter, 1 H. & N. 916; Lord Westbury, in Suffield v. Brown, 83 L. J. (n. s.) Ch. 249; s. c. 10 Jur. N. S. Il1, and 9 Law Times, u. s. 627; Story, J., in Hazard v. tbibinson, 3 Mason, 272, and United States v. Appleton, 1 Suimi. 492; New Ipswich Factory v. Batchelder, 3 N. II. 190; Pickering v. Stapler, 5 S. & R. 107; Lampman v. Milks, 21 N. Y. 505; Seymour v. Lewis, 2 Beasl. Ch. 439; Elliott v. Sallee, 14 Ohio St. 10; Hoar, J., in Philbrick v. Ewing, 97 Mass. 133; Washburn on Easements (2d. ed.J, 63, 64, 70.
2 33 L. J. (x. s.J Ch. 260. » s. p. Pettet v. Hawes, 13 Pick. 323.