« PreviousContinue »
think, like the amiable persecuting Roman emperors and Spanish Inquisitors, without meaning to do any thing wrong or wicked, he has allowed himself to transgress very important laws, which ought to be observed equally among men of letters and gentlemen. He has moreover entirely missed his object; his personal attacks are mistakes—obviously, and beyond all question. Every educated man in a rational state of mind sees this. The insults he has passed upon Sir John Coleridge being gratuitous, produce in us natural reaction-an indignation against Mr. Buckle himself, and the cause of liberty has not been aided by his effort.
If it had been essential for the cause of justice to comment on the principles involved in Pooley's case, the mode in which Mr. Buckle has addressed himself to the subject is the very way to distract the attention from them, and raise issues foreign thereto. But was it essential to raise the discussion again in any way other than that in which Mr. Mill has used it—as an illustration ? The trial had been discussed at the time, the wrong had been rectified two years before Mr. Buckle heard of it, and the Judge, who had thought it his duty to inflict the excessive penalty-for we think, on all grounds, it was excessive-was no longer on the Bench.
Mr. Buckle, moreover, has not used the occasion to point out, after all, the valuable point which the case mainly involves. It is here that society has, as Mr. Mill has shown, no moral right to suppress the maintenance of an argument, nor to restrain the expression of opinion because it is unpleasant to have antagonistic arguments published ; and further, it has no moral right even to feel aggrieved because of differences of opinion existing. Whenever it is alleged, as the reason for persecution, that those persecuted are wrong, and hold and profess marked opinions, it is clear that they who attempt to suppress heresies by force and persecution, are as yet unenlightened as to the mutual rights of members of society, and the principles of toleration and of pure liberty.
But it is, on the other hand, an infringement upon the rights of society when a man, or a body of men, insists upon intruding
opinions upon others; when no option is given the latter whether they will seo or hear what is offensive to them, and especially so when their prejudices are attacked in a cruel and brutal way. Whether likely to lead to a breach of the peace or no, a man chalking up in prominent characters on public walls what he knows must be read by passers-by, and, being read, must shock and disgust, is morally and legally guilty of a grievous offence.
I may buy and read antichristian books if I please, or leave them alone, but I cannot help seeing filthy and contemptuous language publicly inscribed in the streets; and he who forces such on the notice of all his neighbours, young and old, rich and poor, is guilty of a crime, and should not be confounded with those who work and publish their views in the ordinary mode.
We here close our remarks on this topic; it is of a character which has rendered it an unpleasant duty to introduce it into our pages. Such a discussion generally involves, as it proceeds, more persons, and worse passions, and aggravations of all sorts. If we have "not mended matters," but added to the offence, which is likely enough, we regret it, and wish it were otherwise, but we shall not be astonished at it.
ART. II.-A Practical Treatise upon the Law of Railways.
By ISAAC T. REDFIELD, LL.D., Chief Justice of Vermont. 2nd Edit. Boston, U.S.: Little, Browne, & Co. 1858.
YERTAINLY the Law of Railways concentrates in itself
the greatest number of interests. It is not shipping any longer, but railways, which on the whole present the grandest results of human industry. Speculative men see in them the adequate means for effecting unprecedented ameliorations, both moral and physical, in the condition of nations ; practical men rejoice to note their incredible effects in facilitating, and in fact
in creating, habits of locomotion and social intercourse—in furnishing the supply almost contemporaneously with the demand-in accommodating the town by benefiting the country; or, if we take it that every one either travels, or sends, or receives goods by rail, in any view it is hardly possible to mention a branch of law possessing more varied points of attraction. There is interest in watching how the Legislature deals with these immensely powerful associations, whose influence is so wide that, as was stated a few months back in the House of Lords, scarcely one of its members could be said to be personally unconcerned in their shares. There is interest in remarking the aspect which the courts assume towards them--the modus interpretandi adopted in regard to the provisions which the legislature and the law lay down for the purpose of controlling those as well as other great corporate bodies: the ability with which old rules of the common law are made applicable to the questions, so often quite new, that arise in course of the fresh combinations and unprecedented circumstances produced by a mode of transit and carriage so foreign from the ideas of those who founded and those who built up the varied structure of English jurisprudence. With such a keen demand, then, as one would infer from the above considerations, that there must exist for a good practical Guide-book on railway law, why is it so difficult in this country to point out the treatise that is calculated to satisfy the need? Why is it that no work has assumed the position with regard to this subject that has been taken and maintained in regard to their respective subjects, by such works as Sugden on Powers, Abbott on Shipping, Chitty on Pleading, and others ? The answer is this : Railway law is as yet unfinished, and, so to speak, is in the state of the new creation "pawing to set free its hinder parts ;" consequently the good and sufficient book of to-day becomes in two or three years -such is the high-pressure speed of the decisions, aided ofttimes by legislative innovations-an imperfect and unsafe directory, because it of necessity contains nothing relative to the large field of questions that has been opened, and the fresh
ground that has been worked, since the date of its passage through the press. Besides, on a variety of questions respecting railways opinion is very much unsettled; so that that which an author may most judiciously, to all appearance, state to be the inclination of the courts on a particular question at the time he publishes, a few more decisions, or the accident of the reconsideration of the point in a Court of Error, shall in a few months, perhaps, turn into a misstatement. For instance, various opinions have been delivered both with reference to the grand questions of the degree in which the companies are liable for the safety of passengers, and the minor question of their liability touching the carriage of goods, and particularly of animals. Even the general question—Whether railway concerns are to be dealt with as monopolies, and be content to have meted out to them the stinted measure, and the hard rule, accordingly; or whether they are to be regarded as holding out to the public accommodations so excellent as to have attracted the universal public to them ; the public being therefore under a species of estoppel, incapacitated, and disentitled to exact more from them ?—cannot yet be said to be at all settled.
In this state of the case we have great pleasure in contributing to bring under the notice of our readers, the able and comprehensive work, the result of the labours of an American Chief Justice, the title of which heads this article. It will be found, we believe, to embrace nearly all that has been decided in England with reference to matters of general concern (omitting, of course, some few, and but few, which depend on legislation peculiar to England), adding also a large body of American decisions, and embodying much of the reasoning on which they proceed. It is a work, which there would be nothing surprising to us in finding, for some time to come, in much requestamong English lawyers, both because it contains what appears to us to be a valuable digest of the English cases, and because the added American cases not
1 See the late case of M‘Manus v. the Lancashire and Yorkshire Railway Company, 5 Jurist, N.S., 651, in the Exchequer Chamber.
unfrequently discuss, with great clearness, the vexed questions of the subject, and abound with argument and inference that may be expected to go a long way towards a solution of them, as they may come in future before our Courts. The above we state as the conclusion arrived at after a careful examination of the volume ; but we are far from asking of our readers to accept the estimate on that ground, and therefore in the residue of this article we shall endeavour to substantiate what has been advanced.
It may be well to preface what we are about to submit with this observation : That, owing partly to the more litigious habits of the people, partly to the passion for railway travelling and traffic which pervades North America, and partly to the fact that, in 1851, the number of miles of railway, in operation there, was nearly twice as great as in the United Kingdom in 1857; and that besides, in the former year, “nearly as much more was in progress, a large portion of which is now complete," 1 the number and variety of reported decisions is far greater in the United States, in proportion to the population, than with us. Perhaps, also, another reason for the greater inclination which has been manifested there by the Railway Companies to defend actions, may not be unconnected with the state of things which the Chief Justice describes thus :—"In the United States a large proportion of the capital invested in railways has proved hitherto wholly unproductive, and much of it has already proved a hopeless loss, and a very small proportion of the whole can be said to be at all remunerative.” Be the causes, however, what they may, the fact appears to be quite indisputable, that the American decisions on railway topics are not only more numerous than ours, but deal with a greater variety of questions, embracing all or nearly all that are familiar to our Courts, and also many
that have not come before them. On the ultra vires question, there has been in America a large accumulation of decisions, and, as containing and discussing them, this book will. be found well worthy of consultation by all who may hereafter
1 Redfield on Railways, p. 5.