Weekly national intelligencer., 1854-11-11

GEORGE TIcKNoR CURTIS, Esq, an eminent jurist
and counsellor of Boston.
FROM THE MONTHLY LAW REPORTER FOR NOVEMBER
ComMENTARIEs JURIsDIcTIoS, PRACTICE, AND Pc
cULIAR JuRIspRUDENcE OF THE CouRTs THE UNITED
STATES. Vol. / ; containing a View of the Judicial
Power and the Jurisdiction and Practice OF the Su-
preme Court Of the United States. BY GEO. TIcKNoR
CuRTs, Counsellor at Law. Philadelphia 7. & j. W.
Johnson; 1854, PIP. 685, 8yo.
Mr.. Curtis, who, amid the and occupations Of
extensive practice finds time always for professional
authorship has here presented to the profession we'll
considered and carefully prepared treatise, on subject
Of general interest to the American lawyer The judicial
power of the United States and the jurisdiction and
practice Of the Supreme Court form important depart
ments of constitutional lava branch OF law marked by
the finest distinctions and resting upon the most pro-
found principles which has engaged the best faculties
of the best minds among and in which the most spien
did professional trumphs have been won is however,
we'll understood by but few members of the profession
and in general loose and inaccurate notions prevail IN
regard to it, and Mr. Curtiss book will be OF much SER
vice, by the clear and luminous exposition 1t contains Of
matters interesting not merely to the lawyer but also to
the statesman and the patriot.
The work is divided into two books The first book,
distributed into chapters treats OF the Judicial
power of the United States, under the several heads OF
arising under the Constitution laws and treaties
of affecting ambassadors other public minister's
and consuls of admiralty and maritime Jurisdic
ton controversies to which the United States shall be
meaning Distribution and exercise Of the judicial power
The second book is divided into nine chapters, and
treats of the jurisdiction and practice Of the Supreme
Court Of the United States The first chapter is upon
the original jurisdiction and practice of the Supreme
Court Of the United States the second third fourth
and fifth chapters upon appellate Jurisdiction OF the
Supreme Court with reference to the Circuit Courts, to
the Circuit Court of the District of Columbia to the State
Courts and of the special appellate jurisdiction Of the
Supreme Court in Florida Lousiana and California land
claims. The sixth, seventh, eighth, and ninth chapters
treat of the practice of the Supreme Court in wrts OF
ror in equity and admiralty appeals, in certified
division Of opinion, and in of original urisdc
ton There is supplement, containing abstract Of
the IN the 18th Of Howard bearing upon the topics
discussed in the main body of the work. and appendix
of rules and orders and FORMS aJ
The substance of the work has been gathered from the
laws and constitution of the United States and the
rous decisions of the courts Of the United States in Illus
traton thereof The examination of these by Mr. Curtis
has been minute patient and exhaustng and the results
Of his Investigations presented with logical method
and discriminating analysis His style is clear precise,
and accurate his grasp of legal principles is vigorous
and his statement Of legal points and distinctions Is umi
In constitutional Interpretation his views of
the school of Marshall Story, and Kent but whenever
he has occasion to express dissent from judicial opinion
observation, 1T is done with that proprety and de-
which the relation between the bar and the bench
mperativey requires The constitutional lawyer will
read with peculiar interest the chapter the appellate
jurisdiction of the Supreme Court of the United States
with reference to the State Courthe longest and most
elaborate in the yolumein which the Of the OBJ
legation of contracts and of the distinction between the
obligation and the remedy of contract is treated with
great accuracy Of statement and uness of research The
chapter the special appellate jurisdiction OF the Su
preme Court in Florida Louisiana, and California land
claims will be curious and to most of the profession
in the Northern States at least
Mr. Curtis in his preface that the second
volume OF his work will embrace the jurisdiction and
practice of the Circuit and District Courts We
graulate him and the profession alike the industry
and thoroughness with which his task thus far has been
completed; and when his whole plan shall have been
complished he will have finished work honorable to
himself and useful to his brethren.
As specimen of Mr.. Curtis's style and manner, we
cite paragraph in which he discusses the right of State
to extngush franchise by the exercise of the right OF
eminent domain--one of those points which judges
and statesmen will differ according the character of
their minds and the political schools in which they have
been trained
"The case in which the power of State to
tngush franchise by the exercise of the eminent domain
thus affirmed be within the provision of the Con-
snton of the United States respecting the obligation Of
contracts was case where the Legislature of Vermont had
in l95 Incorporated company for the purpose Of building
and maintaining tobrdge and long afterwards, by
proceedings under the general of the State enacted
in 1885, public road laid between certain termin
passing and upon the PLAINTIFF bridge, and thus
verting it into froe public highway compensation being
sessed and awarded to them for this appropriation OF their
property and for the consequent exnguhmen of their
franchise The charter of incorporation had confined the
plaintiffs right of erecting and maintaining tollbridge to
particular spot directing directed
be resurveyed by act passed at the time 1t is
difficult to be satisfied with the reasoning employed by
OF the learned Judges in this The ground which
the decision placed by majority of the court that
above stated and 1t substance the position
that the Of eminent domain is part of the funda
mental law Of the State applicable to all property the
tract by which franchise created must be held to be made
with reference to this known and universal Of the Gov
ernmen and the condition that it to be exercised
when occasion calls for it. But may be respectfully
gested that what exnguhed taken away in this
casethe franchise sewss the thing created by the
tract and the right enjoy which the thing stipulated
that the differs from that of the Charles river and War
bridges in this that in the latter the value only Of
the franchise impaired but the franchise itself not
taken or extngushed and that to hold that the subject
matter of its grant be taken exngushed by the State
under its Of eminent domain when it cannot be
sumed by the making power alone without touching the
obligation OF the contract is to hold that the right Of the
eminent domain enters into the contract its cond-
ons, while the ordinary Legislative power excluded from
it. And this understand to be the view Of the court
it said that the Of eminent domain is to
all private rights vested under the Government and,
that the grant of franchise made with reference to
essential and nseparabe condition. growing out of
the higher authority Of the law of the State Now
this broad and important question: whether and to what
extent the law of the State enters into and forms of the
oblsston Of contract by tacit reference presumption
as TO regulate fix the spuatons of the parties upon points
which the contract does not expressly speak, question
that has rseeved full and satisfactory eucidnon in
our constitutional discussions warrant all the conclusions
that follow from denial amance of the general pro-
position That the law which regulates in the
of eminent domain, the power ITSELF of
and sacred character than other law which Of the
ers themselves that may m supposed be peculiarly
in the contemplation Of the partesto such grant, while
ordinary legislative power is NOT it Ia difficult to AFFIRM 1t
is difficult 10 sec why State destroy sub
cct of its grant by Legislative which involves
ercse OF the power of eminent domain when do
by simple rp Of the grant the legislative power
upon the the contract In the grant made upon
the condition th the power may be execed and that
the other hot be. All the of