original, or a sheer vacuity of features without expression, would certainly tend to restore it.

Without stopping to insist, on the other hand again, on what is very evident, that the memory of features and of delicate shades of expression is never perfect, and is often very defective, and that, during the lapse of years, such changes of feature, complexion, or expression may have occurred as to put at fault those whose memory of faces is best, I will observe that it is not so much my purpose to strike a balance of advantages between the two methods of identification, as to ascertain their relative rank as evidence, leaving the weight of each to be determined as in other cases.

The testimony of a witness comparing a person present with the remembered image of a person absent, is, in all its parts, original evidence. Ought we to rank as secondary evidence either of the three elements of the process of identifying a person by his photograph, which follow, namely, 1. The establishment by proof of the genuineness of the photograph; 2. The statement or narration of facts made, if I may so say, by the picture itself; and, 3. The comparison, by witnesses, or by a jury directly, of the person offering himself, with that picture?

At first view, doubtless, a photograph seems a mere piece of hearsay evidence. It is what the witness vouching for its genuineness says, the photographic apparatus, acting in conjunction with sunlight and chemical reagents at the time of taking it, affirmed to be an accurate likeness of the person who sat for it. It differs from hearsay, however, in one essential particular; it is wholly free from the infirmity which causes the rejection of hearsay evidence, namely, the uncertainty whether or not it is an exact repetition of what was said by him whose testimony is repeated by the witness. In the picture we have before us, at the trial, precisely what the apparatus did say. Its language is repeated to us, syllable for syllable. Disclaiming any knowledge as to the name or identity of the original, the apparatus says:-"His features, size, shape, apparel, and surroundings were so and so." The vouching witness completes the narration thus left imperfect by locating and naming the person whose picture it is, and this latter, all will agree, is original evidence. Is not that of the picture equally original? Or, if a difference exist, should we not give the greater credence to the photograph, whose testimony, we

know, is perfectly truthful and generally commensurate with the fact, while that of the vouching witness, and also of the witness called to speak to the question of identity, may be mistaken or perjured?

If any one supposes that when a photograph is used to aid in the identification of persons, the evidence is less entitled to rank as original evidence, than that of a witness identifying a person by comparison with an image in the witness's mind, let him analyze the process in the latter case. To make such a comparison, the witness must first recall an image, formed, perhaps, years before, on the retina of his eye, by the natural processes involved in the act of vision; and then, with this image, compare the person proposed. Is the faculty of vision never at fault? May not the person seeing be mistaken in supposing it was A., rather than B., whom he saw, even when the image is recent; much more, when it is ancient and faded, from the imperfection of his memory? If, on the other hand, we feel such a degree of confidence in the accuracy of the representations made by the eye, notwithstanding the many sources of error to which vision is subject, that we accord to the evidence in question the rank of original evidence, why should we rely less confidently on the trustworthiness of photographic testimony, which is free not only from all moral bias, but from nearly every conceivable physical cause of error? We know that the photograph is not the work, in any respect affecting its truthfulness, of a human brain, but of natural forces, which, experience teaches, generally speak the truth without flattery or detraction. If I am correct in this, a photograph, proved to be that of a person absent, is that person himself, precisely as he exists in the article of vision-is, therefore, direct and original evidence of the kind of man he was. So, of the photographic likeness of any natural object or place. When shown to be the photograph of the place or object, it is original-that is, legally speaking, the best-evidence of its features and relations; as much so as the testimony of a witness speaking from memory of the same features and relations. And, in general, whenever the art of photography is employed to delineate for the information of others the features and expression of a person, or the condition and relations of an object, whose identity is not in question, its products are so veracious as to entitle them to rank, not as hearsay or secondary, but as original, evidence. How important this

is, practically, may be seen from the example given above of a photograph taken of a body and its surroundings after a homicide has been committed. If the picture is secondary evidence, it could not be offered, whilst there were, as there always would be, witnesses who could speak of those circumstances from their own knowledge, since their testimony would, in law, be the best evidence. On the contrary, the really best evidence, as every one must perceive, would be that given by a photograph. Its testimony in relation to the enumeration and grouping of details, would be perfectly exact; and, in relation to their perspective, and, often, to their coloring, it would be nearly so. This use of the art, however, having a less intimate connection than the other with the administration of justice, I shall not dwell further upon it in this relation. As furnishing a cause of action in suits for damages, but one or two cases occur to me. One would be, when a photograph clandestinely taken, and representing its original in a ridiculous light, or publishing his personal defects, should be uttered maliciously, to his damage. Such a picture would doubtless be a libel in all our states, and particularly in those in which the old maxim, "The greater the truth, the greater the libel," is still in force. So, if a likeness, once lawfully taken, were, without permission, to be multiplied for gain, the artist reckoning on the beauty or distinction of the original for an extensive sale, it might be considered whether there was not a violation of a sort of natural copyright, possessed by every person of his or her own features, for which the courts would be bound to furnish redress. If the newspapers are to be trusted, a case of the kind has lately occurred in Europe. An artist multiplied the likeness of a lady of high rank at the Austrian court, and sold the copies as the photograph of some notorious woman in another city. Suit was brought by the injured lady and a judgment recovered. What was the ground or the nature and extent of the recovery, we are not told. Special damage may have formed the basis of it; but it cannot be doubted, that had there been none, her right to control the market of her own beauty could not have been denied her by any court, and that she must have recovered on the ground that that right had been infringed, if on no other.

J. A. J.

RECENT AMERICAN

DECISIONS.

Supreme Court of Errors of Connecticut.

THELUS TODD AND OTHERS v. WILLIAM P. AUSTIN AND OTHERS.

The Act of 1864, known as the Flowage Act (Rev. of 1866, p. 89), is not unconstitutional. The decision to this effect in Olmstead v. Camp, 33 Conn. R. 532, confirmed upon full argument.

It is no objection to proceedings under the Flowage Act, that the mill is not on the same tract of land upon which the dam is sought to be erected, and that land belonging wholly to other parties lies between.

Where the petitioners had called on two landowners to state on what terms each would allow his land to be flowed, and one had declined to give any answer and the other had demanded more than the petitioners were willing to give, it was held to be a case where the parties were "unable to agree as to the damages to be paid,” within the meaning of the statute.

Where the committee, upon a petition for authority to raise an existing dam to a greater height, in their report stated the authorized height merely as so much additional height to the existing dam, it was held that they had fixed the height with sufficient certainty.

The provision of the state constitution (Art. 1, § 11), that private property shall not be taken for public use without just compensation, is not to be regarded as a grant of power to the legislature, but as a restriction upon the exercise of the right of eminent domain already existing. [BUTLER and CARPENTER, JJ.]

The legislature may lawfully grant rights of easement to individuals or corporations to enable them to erect and operate structures, if the result of their operation is the production of an article or thing intended to be furnished or sold to the public for a beneficial use, and to supply their reasonable wants. [BUTLER and CARPENTER, JJ.]

PETITION under the Flowage Act, praying for authority to raise a mill-dam above its existing height, and for the assessment of damages to the several respondents, whose lands would be overflowed thereby. There were three petitioners, and the petition alleged that they were severally the owners of mills on Stony Brook, running out from Paug Pond, and that all their mills were supplied with water from the pond, the dam being situated at the outlet of the pond. The petition was brought to the Superior Court in New Haven county, and was referred to a committee, under the statute, who reported:

That the flowing of the land would be of public use; and the height to which the dam might be built by the petitioners to be "such a height as will raise the water of Paug Pond three feet above the height to which the waters of the pond would be raised

by the dam as it stood at the date of the petition, namely, on the 23d day of February 1865."

The committee then assessed the damages of the respondents, and further reported:

"That the dam is situated on a piece of land belonging to the petitioners, separated from each of the pieces of land on which the water-mills and manufacturing establishments of the petitioners are situated, by several intervening pieces of land belonging to several and different owners, and not belonging to the petitioners or any of them."

The respondents excepted to the report, because the dam is not situated on the same land upon which any of the water-mills mentioned in the petition are located; because testimony that the flowing of the lands in the manner proposed would be of public use was inadmissible, and the committee were not authorized to inquire whether or not it would be of public use to flow said lands by means of a dam erected upon land no part of which was connected with or attached to the land upon which any one of the water-mills mentioned in the petition was located; because the act under which the proceedings were had is unconstitutional, and because the finding and report of the committee are indefinite, vague, and uncertain, and not in conformity with the requirements of the statute, and do not show with certainty the height to which said proposed dam may be raised, nor will the record show with certainty the matter attempted to be determined.

The respondents also filed an answer, denying that the erection of said dam is or will be of or for public use; and moved that the court shall inquire for itself whether the erection of said proposed dam is or will be of or for public use.

The Superior Court (PARDEE, J.) overruled the exception, accepted the report, and decreed accordingly.

With regard to the raising of the dam being of public use, the court found "that the raising of said dam in the manner and to the extent recommended in the report of said committee, will furnish such increased quantity of water for the use of the several mills on Stony Brook, which are described in detail in said petition, as will enable the owners thereof to operate them during portions of the year in which they cannot now be operated by reason of an insufficient supply of water, and will thus increase the power, value, and usefulness of said several mill privileges,