designed misconduct, a very different consideration would arise. Then for the occasional mistakes-in visitation or capture for probable cause, which may be atoned for by remunerative damages, no other responsibility ought to attach to the officer or his government, than in the case stated by the writer.

The doctrine of courts of admiralty has always been such, as a rule of general application. The rules of good sense have been extended to all the cases of casual trespass, and hence has resulted the technical doctrine of probable

cause.

And how perfectly does this admission of the writer confute his doctrine, that the government of the captor is at all events responsible as for the dishonor of the flag. There can be no violation of the flag and dishonor of the sovereignty by a casual trespass committed for probable cause, atoned for at once, and "of which no government would even think of complaining."

But this writer admits the analogy of seizures for probable cause, on the ocean, to arrests by sheriff's officers within the body of a county. The analogy is just, and we submit to our readers the consequences of the parallel. If this principle is just, it applies to all cases, and not by grace and favor to a single instance of casual trespass. It is a doctrine too of the schools, and has been enforced and illustrated by doctors of high authority. They teach us that when an arrest is made in good faith by the proper officer, he is not only justified by the event, but the excuse of probable cause is always sufficient, and moreover the excuse applies although the individual arrested has been subjected to long and ruinous detention, and a trial on a criminal charge. On this principle, whenever a vessel, instead of being boarded by an officer who retires on discovering his mistake respecting her character, is captured, her voyage destroyed, and the vessel herself carried in for adjudication, although the

seizure may not be justified by the event, the captor is excused, precisely as the sheriff's officer would be for a like mistaken arrest on the land.

As if the subject was not already sufficiently exciting, the writer has conjured up the phantom of impressment, and he is anxious to establish the doctrine that Great Britain can have no strict right to visit American vessels, lest, availing herself of the right to visit for one purpose, she should exercise an authority for another object which would not itself have justified a visit; and in the principle that probable cause is not in the courts of admiralty strictly a justification for a maritime trespass, but only admissible by way of excuse, he thinks he has discovered a protection from the fancied evil. But sufficient for the day is the evil thereof. The whole subject of impressment is foreign to the present discussion; and we will only remark that the high grounds on which Great Britain claims a jurisdictional right to impress her own seamen, and the imposing reasons by which the United States repel the exercise of this pretended right, are faintly conceived and stated by the writer.

He might have spared himself the trouble of attempting to show that a mistaken exercise of jurisdictional rights by capture or visitation, though excused by circumstances, can never be strictly justified. The doctrine of the prize courts is, that justification depends upon the event, except when the rights of commerce are restricted by convention. They are thus restricted, as has already been explained, in respect to contraband and colonial produce. Neutrals must produce evidence that their commerce is not contraband or colonial. A belligerent has an absolute right to examine that evidence, and to investigate the true character of that trade. This right does not depend upon the event, nor upon probable cause. Unfortunately for the views of this writer, in a season of war, when it becomes the interest of a maritime power to reclaim its seamen by impressment, an absolute

right of search for contraband and colonial articles springs at once into existence, a right which is universally conceded. to exist, which is acknowledged in treaties by which contraband or prohibited commodities are defined, and to which all neutrals are bound to submit.

S. F. D.

ART. VIII.-GREENLEAF ON EVIDENCE.

A Treatise on the Law of Evidence. By SIMON GREENLEAF, LL.D, Royall Professor of Law in Harvard University. Boston Charles C. Little and James Brown. London: A. Maxwell. 1842. 8vo.

Omnes debere Jurisprudentia libris componendis animum adjicere; all men ought to addict themselves to the composing books of law. So says our great master, Sir Edward Coke; and we should most heartily join with him, if all the books composed should compare in value with that now before us. Professor Greenleaf has taken a difficult, important, and interesting branch of our law, and treated it with originality, clearness, neatness, method, completeness and learning. His work will be the most agreeable manual for the student, introducing him to the principles of the law of evidence, at the same time that it will engage the attention of the practitioner, and render him most essential aid in the application of the rules to the affairs of actual life. It is not necessary to say, in enhancement of its merits, that it will supersede all other works on the same subject; but we should fail in justice to the learned author, and in expressing our high opinion of his work, if we did not frankly declare, after a careful examination of it, that no other work on the subject can be of equal value to the American lawyer, and that, wherever, in our broad country, the common law is administered, professor Greenleaf's Treatise on

the Law of Evidence, will be studied and referred to alike by the student and practitioner.

The subject is of an importance, only equalled by its interest, in a professional point of view. The rules of evidence must be familiar as his alphabet to the practitioner. He is constantly called upon to apply them at a moment's warning. To use a sporting phrase, he must be able to shoot flying. In the currents of forensic debate, an unexpected emergency may arise, allowing no opportunity for deliberation, or for reference to authorities, when the decision is to be made as rapidly as the human voice can give it utterance. It is on occasions like these, when great affairs are in question, that the advocate evinces his full mastery of his profession. But the experience of every day in court offers instances, often in no humble way, in illustration of the importance of this knowledge.

It has been said in that parent country, from which we derive our laws, that king, lords and commons, the whole constitution of government, were devised in order to get twelve men into a box-a strong form of expression denoting the superlative importance of the administration of justice in the arrangements of society. And is it not strictly true? Why do we come together in society, and build these various fabrics of state, except to protect individuals in the enjoyment of their rights, whether assailed by foreign or domestic wrong? But in carrying out these purposes of protection, in the administration of justice, we must use the rules of evidence. These are the scales which the law holds aloft.

To the lawyer, engaged in courts, or dealing with the questions of practical life, no other department of jurisprudence can be of equal importance, if, indeed, it be possible to separate a knowledge of this department from that of all the others. For, to understand the law of evidence thoroughly we must be familiar with the whole range of juris

prudence. In determining the proofs necessary to sustain a title to property, to enforce a contract, or to uphold innocence, we must accurately comprehend the nature of the title, and of the contract, and the ingredients which constitute crime. The occasion for this knowledge seems, in practice, to precede that of evidence, though it will be often found to mix with it, so as not always to be distinguishable from it. The late treatises on this subject have worn the air of Grand Abridgments, wherein are treated the whole circle of legal relations, both civil and criminal; one of these works making, what an old writer might have called, a microcosm of law.

Mr. Starkie's very valuable work, occupying, in the last edition, upwards of eighteen hundred octavo pages, presents a survey of the whole field of jurisprudence; so that one, who has completely mastered all its details, may make boast of no mean professional attainments. In discussing with such fulness the general topics of the law, we doubt if he has not departed from the most appropriate and logical treatment of his subject. It has been professor Greenleaf's object to confine himself, as much as possible, within the exact limits of the law of evidence, to expound its principles, and show their application, but not to allow himself to wander at large in the other departments of law. In this way he has been able to keep his work within a moderate compass, and to present a view of the subject, divested of all matters which do not tend directly to the elucidation thereof.

We believe it was Addison who defined good writing to be proper words in proper places; so, in a larger view, a good work embraces proper topics in proper places, rejecting all other things as surplusage. A treatise, wrought with care and method, and strictly confined to the law of evidence, has long been desiderated by the students of law in our country; and we are happy that it has fallen to our Dane Law School, towards which we turn with filial re