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right. But the law is settled to be otherwise. Such a possession and use is evidence of a right, but not conclusive evidence.

'In the case now before us, it is not disputed, that, if the way had been constantly used with the knowledge of the defendant for twenty years, it would have been evidence of a dedication of it to the use of the public. But it is contended that no use of the way for any period short of twenty years is evidence of such

dedication. It seems to us that it will be difficult to maintain this ground upon principle. For if it was expedient and proper to make by statute the peaceable adverse possession of land for twenty years conclusive evidence of a right, how it can be that an uninterrupted use of an easement for nineteen years is no evidence of a right, is not very easily conceived. But this is a question to be settled by authority.

'It is said to be a rule of law in England, that if a man build a bridge and it becomes useful to the county in general, the county shall repair it. 5 Burr. 2597; 2 W. Bl. 685; 2 East, 356, note; 353, note; and 342 The King v. The West Riding Yorkshire; 1 Salk. 359; 12 East, 192; 7 East, 588; 5 Taunt. 285; 2 Chitty's C. L. 589.

'And we have decided that when individuals erect a bridge and dedicate it to the public, as soon as it has been used long enough to show its public utility, the repair of it becomes a charge upon the public. It is not necessary it should be used twenty years to become so, but it depends upon the inquiry whether it be of public utility. 2 N. H. Rep. 513, The State v. Campton.

'It must not be supposed however, that individuals can impose a burthen of this kind upon towns, by building slight bridges over streams in any place where they may choose. Such attempts may be indicted and punished as nuisances. 2 East, 348. It is when they have been used long enough to show their utility without being treated as nuisances, that they become a charge upon the town. 1 Pick. 188.

'And it has been held in England, that a private individual who builds a street or otherwise opens a thoroughfare to the public, without erecting any bar to preserve his right of stoppage, or even throws open a passage without any visible mark of exclusion or prohibition to persons using it, will, after the expiration of six years, be considered as having dedicated it to the public. 2 Chitty's C. L. 566; 11 East, 375, note; 1 Camp. 260.

'Some doubt has since been expressed whether a dedication could be presumed in so short a time. 5 Taunt. 124, Woodyer v. Hadden. And it is very clear, that under all circumstances it could not be presumed in so short a time. It was held in the case last cited, that after nineteen years, the street could not, under the circumstances, be considered as dedicated to the public for all purposes.

Much depends upon the circumstances.

When

an individual deliberately throws open a road to the public, and permits it to be travelled by all without interruption, we have no doubt that in much less than twenty years these facts might be left to a jury as evidence of a dedication.

'Lord Ellenborough says, 6 East, 215, "I take it that twenty years' exclusive enjoyment of the water in any particular manner, affords a conclusive presumption of right in the party so enjoying it, derived from grant or act of parliament. But less than twenty years' enjoyment may or may not afford such presumption, according as it is attended with circumstances to support or rebut the right." 1 Camp. 463, Dalston v. Bensted.

"It has been decided that an uninterrupted use of a private way for twenty years might be left to a jury as evidence of a grant. 3 East, 294, Campbell v. Wilson; 2 Pick. 466, Hill v. Crosby; 14 Mass. Rep. 49, Gayetty v. Bethune; 5 B. & A. 454, Wood v. Veal.

'So the use of a market for twenty-three years was held to be competent evidence to be left to a jury to prove a grant. 1 Bos. & Puller, 400, Holcroft v. Hul, which is explained in 3 East, 298; 2 Saund. 175, note 2.

Payment of a bond may be presumed after eighteen or nineteen years under some circumstances. 1 D. & E. 272; 10 Johns. 381.

'So a person who has been absent seven years and nothing heard of him for that time, may be presumed, under some circumstances, to be dead. Phillipps' Ev. 152.

'A regular usage for twenty years unexplained and uncontradicted, is sufficient to warrant a jury in finding the existence of an immemorial custom. 2 B. & C. 54, The King v. Joliffe.

'Whoever considers for a moment, attentively, the nature of lapse of time, as evidence of a fact, will perceive the difficulty and absurdity of attempting to fix, in all cases, a particular length of time which may be considered as evidence, and any less time as affording no proof. For it is very clear that in many cases, the strength of the evidence depends much more upon the attending circumstances than on the length of the time. See Phillipps' Ev. 114, 124.

This is well illustrated by a case stated by Phillipps, 123. If a tenant for years or for life gives a license to another to enjoy an easement on his land for above twenty years without intermission, this will not affect the person in the reversion or remainder; but on the determination of the particular estate he may dispute the right to the easement, and the length of possession will not be evidence against him to presume a grant, unless it can be shown that he acquiesced.

'Whether the lapse of time is, in any particular case under the circumstances, proper to be submitted to a jury as evidence of a

fact, is a question of law to be settled by the court, and must to a certain extent depend upon the circumstances.

'And in the case now before us we are of opinion that the defendant's acquiescence in the laying out, making, and use of the road for seventeen years without any objection, was, under the circumstances, competent evidence to be left to a jury as proof that he had dedicated the land to the use of the public without any compensation. It is not an uncommon thing for the owner to give the land for the sake of having a highway. And we have no doubt that it might have been left with propriety to the jury to presume from the defendant's long acquiescence that he received a due satisfaction. We of course think that there was no misdirection to the jury in this respect.

'If the plaintiff had relied upon the record as evidence of a highway, it might have been necessary to consider the effect of the mistake in the description of the road in the record. But that is now unnecessary. Because it is clearly the road which has been actually made and travelled, and in which the defendant has acquiesced, that has become a highway. Judgment on the verdict.' pp. 11-16.

The opinion of the court in this case, and indeed in all the others, in which the judge's name is mentioned, is given by Chief Justice Richardson. The method is generally very clear, and the logic close, without waste of words. The court usually proceeds directly to the matter in hand, without any useless introduction or ambages and generalities, of which our American reports afford too many examples. It is a circumstance very much in commendation of this publication that the following only three useless lines, struck us as an exception to the compact neatness which generally prevails in these opinions. The lines are,

'We have attentively considered the motion which has been made in this case, and shall now proceed to express the opinion we have formed.'

We presume these reports to be made by Chief Justice Richardson, and regret that they do not come out in his name, for the title is certainly a very long one to cite. The name 'New Hampshire Reports,' is already appropriated; that of 'New Hampshire Cases,' is, we believe, not yet made use of. But the volume will, by and by, no doubt assume the name of the reporter, and to save the trouble and confusion occasioned by a change, it would be more convenient to call it at once Richardson's Reports.

In the case of Pike v. Bayley, cited under the head of Pleading in our abstract, the court decide a plea of non-tenure in abatement, to be bad on demurrer, because it does not conclude more formally. This seems to be adhering to the established forms with great strictness.

We observe one omission in this volume; it does not give the names of the judges of the court whose decisions are reported. They will probably be given when the rest of the volume shall be published. But it is satisfactory to know in each case what judges were present and concurred in the decision, which is done either by giving the names of the judges in the beginning of the volume, and noting the absence of any one at any particular term, or in any particular case, as is done in some of the old reports, or by giving the names of the judges present at the beginning of the session in each county.

ART. IX.-PROVINCIAL AND COLONIAL LAWS. The Force of Provincial and Colonial Laws and Customs since the Establishment of Independence.

NOTHING can be more important to a free people, desiring and professing to be governed by fixed laws, than to know with certainty what provisions have the force and effect of binding laws. In many countries, uncertainties upon this subject have existed to such a degree as to render the rights of property in a great measure insecure. In many places customs prevail, having to a greater or less degree the force of law. In France, before the adoption of the Code, different customs prevailed in different provinces and districts, so that very different systems of law were to be administered by the same tribunals, and over people yielding obedience to one and the same government. Another class of inconveniences, though of a somewhat similar character, arises where there is an uncertainty as to the authority of different acts, having to an extent the force of law, such as the decrees, rescripts, ordinances, and other acts, emanating from different authorities, and uncertain as to their force, their extent, and duration. Thus

the imperfection of the laws of the Roman empire arising from these causes, previous to the time of Justinian, was one of the motives which led to the formation of the Digests and Institutes during his reign, out of the multiform and vast materials supplied by the twelve tables, plebiscita, senatus-consulta, prætorian edicts, imperial decrees, and responses of the jurisconsults.

Happily in this country we are in a good degree exempt from the doubts and difficulties arising from these causes; and although those of another character, arising from the number of legislative bodies in the United States, and the rapidity with which they move, and the consequent multiplicity of legal enactments, render it difficult for the acutest practitioner, without extreme labor and research, to keep pace with them; yet such is the character of all our constitutions, that there is now no difficulty in determining whether any particular act emanates from a legitimate authority. All these constitutions provide particularly the manner in which the legislative power shall be constituted and exercised. No act, unless it have the sanction of the regularly constituted legislative power, and be framed, authenticated, and promulgated in the course required by the constitution, can require the obedience, regulate the conduct, or affect the rights of the citizen. No proclamations, orders, ordinances, or similar acts, emanating from executive or judicial authorities, can have the force of law. In some few instances, indeed, in the practice of the United States, an authority has been given to the President to enforce or suspend, particular legislative provisions, at his discretion; these, however, can hardly be considered exceptions to the general rule, inasmuch as the law derives its full force and effect, when in operation, from the authority and sentence of the legislature, regularly exercised, and nothing but the time, either of its commencement or termination, is left to be decided by the executive. And it is to be hoped that this limited power will be delegated sparingly, and only in cases of urgency, and upon high considerations of policy and expediency, to enable the President to negotiate more effectually with foreign powers. This power should be given sparingly, lest the people should gradually become habituated to overlook the distinction between the constitutional and the delegated powers of the executive, and to attribute a higher degree of weight and authority to executive acts, than are warranted by the constitution.

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