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suits, without taxing them besides with the expense of publishing reports of the cases for the benefit of the public. The only apology for any such tax would be, that the public is at the expense of maintaining court houses, paying the salaries of judges, &c.; and the tax may be considered only as a reasonable compensation for those facilities afforded at the public expense towards the settling of private controversies. But this would not be a very liberal footing on which to put the question, and will not probably be considered a good reason for levying this very objectionable species of tax. Reports of decisions ought to be published, in some degree at least, at the public expense, and under public authority, for the reason that they are practically a part of the laws by which the conduct of people is to be regulated and their rights, obligations and duties determined; since the construction given to the laws by the courts, do in fact, to all practical purposes, constitute a part of those laws.
Law Drafting. We have occasionally remarked upon the unskilfulness of the drafts of some of the statutes which it has been our duty, in the course of our publication, to examine. It is indeed a little singular, that, in the practical course of our legislation, especially in the states, so many persons should be ready and think themselves quite competent to draft a law. We observe a law in the statute book of Massachusetts, the object of which was, probably, to substitute imprisonment for whipping, in all cases in which the substitution had not already been made by previous acts, but the act appears to abolish every species of punishment for all kinds of crimes, except a fine not over $ 200 and imprisonment not exceeding six months. The act runs thus: An Act for abolishing the punishment of Whipping within this Commonwealth.
Be it enacted by the Senate and House of Representatives, in General Court assembled, and by the authority of the same, That no person, convicted of any offence, before any court of this Commonwealth, shall ever be punished by whipping; but the court, having jurisdiction of the case, may, and shall, sentence such convict to a fine, to the use of the Commonwealth, not exceeding two hundred dollars, or to imprisonment for a term not exceeding six months, according to the aggravation of said offence. [Feb. 28, 1826.]
QUARTERLY LIST OF LAW PUBLICATIONS.
Reports of Cases argued and determined in the Supreme Court of Massachusetts. By Octavius Pickering. Vol. VI. Boston. Hilliard, Gray, & Co. 8vo.
Reports of Cases argued and determined in the Court of Appeals of Maryland, in 1827, 1828, and 1829. By Thomas Harris and Richard W. Gill. Vol. 2. Annapolis. Jonas Green. 8vo.
The Law of Executors and Administrators. By Sir Samuel Toller, Knight; with considerable Additions by Francis Whitmarsh, Esq., with references to the Statutes of Pennsylvania, and the Principal American Decisions. By Edward D. Ingraham. Philadelphia. John Grigg. 8vo. pp. 623.
The New Hampshire Town Officer. By William M. Richardson. Concord. J. B. Moore. 12mo. pp. 299.
The Law of Pleading and Evidence in Civil Actions, arranged alphabetically, with Practical Forms and the Pleadings in Evidence to support them. By John Simcoe Saunders, Esq. 2 vols. Philadelphia. R. H. Small. 8vo.
Militia Laws of the United States and the Commonwealth of Massachusetts. By William Sumner. Second edition. Boston. True & Greene.
The Form Book ; containing nearly three hundred of the most approved Precedents. By a Member of the Philadelphia Bar. Philadelphia. Tower & Hogan.
Condensed Reports of Cases in the Supreme Court of the U. States, containing the whole series of the decisions of the Court from its organization to the commencement of Peters's Reports at January Term, 1827, with copious notes of parallel cases in the Supreme and Circuit Courts of the United States. Edited by Richard Peters, Esq. Vol. I. Philadelphia. John Grigg. 1830. 8vo. pp. 655.
A Digest of the Decisions of the Supreme Court of the United States, from February Term, 1821, to January Term, 1829; and also of the Cases in the Circuit and District Courts of the United States; from the commencement of the Reports: being a continuation of Wheaton's Digest. By two Gentlemen of the New York Bar. New York. R. Donaldson. 8vo. pp. 311.
A General Abridgment and Digest of American Law, with occasional Notes and Comments. By Nathan Dane, L. L. D. Counsellor at Law. Vol. IX. Being a Supplement to the 8
vols. before published. Boston. Hilliard, Gray, & Co. Royal 8vo.
Reports of Cases Adjudged in the Supreme Court of Pennsylvania. By Thomas Sergeant and William Rawle, jr. Vol. XVI. Philadelphia. M'Carty & Davis. 8vo.
An Essay on Uses and Trusts, and on the nature and operation of conveyances at Common Law, and of those which derive their effect from the Statute of Uses. By Francis Williams Saunders, Esq. of Lincoln's Inn, Barrister. First American, from the fourth London edition. Revised, corrected, and considerably enlarged. Philadelphia. R. H. Small. 8vo.
A Practical and Elementary Abridgment of the Cases Argued and Determined in the Courts of King's Bench, Common Pleas, Exchequer, and at Nisi Prius; and of the Rules of Court. By Charles Petersdorff, Esq. Vol. II. New York. Gould & Banks. 8vo.
Reports of Cases Determined in the Circuit Court of the United States, for the third Circuit, comprising the Districts of Pennsylvania and New Jersey. Published from the Manuscripts of the Hon. Bushrod Washington, late one of the Associate Justices of the Supreme Court of the United States. Vol. IV. Phila-, delphia. P. H. Nicklin & T. Johnson. 8vo.
The Chancery Practice of the State of New York. By Joseph Noulton, Solicitor and Counsellor. Vol. I. New York 8vo.
Hilliard, Gray, & Co. have in press, No. 1, Vol. 7, Pickering's Reports.
ART. I.-OBSTRUCTION OF A NAVIGABLE CHANNEL.
[The following case having excited some public interest, and involving a question of general and practical importance in all parts of the country situated on the sea sbore or navigable streams, we requested Judge THACHER, before whom it was tried, to furnish us with the notes of his charge to the jury. He has very obligingly complied with our request, and also given us the use of his minutes of the case of the Commonwealth v. May, tried in the Supreme Court of Massachusetts in 1803, involving a similar question, and which has been sometimes referred to, but no report of it has been before published.] A wharf extending into the channel of a navigable river, though it may in some
respects be a public convenience, yet if the effect, in the course of time, will be to injure the channel by straitening it, by lessening the depth of water, or by giving a new direction to the current, and such injurious effect exceeds the public benefit to the navigation, is a public nuisance.
COMMONWEALTH OF MASSACHUSETTS, December Term,
Municipal Court of Boston, 3 A. D. 1829.
This indictment was found by the grand jury, at the November term, A. D. 1828, and was continued by consent to this term. It was for a common puisance, and contained two counts. The charge in the first was, that the defendants, on the 1st November, 1828, did unlawfully erect in the harbor of Boston, being a common and public highway, and in the channel part and common current of the navigable water of the said harbor, and beyond the line of low water mark, a certain
VOL. III.-NO. VI.
wharf of wooden piers, of the length of one hundred feet and of the breadth of twenty feet, being of such large dimensions, that the citizens of the Commonwealth cannot pass, and navigate with their vessels through the harbor, as they were before accustomed to do.'
In the second count, after setting forth that the harbor of Boston is an ancient and common public highway, for all the citizens to navigate with their vessels, &c. it charges, that the defendants, on 1st November, 1828, in and upon the bed and soil of the said harbor, where it is usually covered with water, and in the stream channel and navigable part of said harbor, near the southern extremity of the same, did unlawfuily place twenty piers of timber in the manner of a wharf, by reason whereof the navigation of the said harbor is greatly obstructed and narrowed ;' both counts concluding, to the common nuisance of all the good citizens of the Commonwealth, and against the peace, &c.
The defendants severally pleaded, that they were not guilty.
The case came on for trial on Wednesday, 23d December, 1829.
J. T. Austin and Lemuel Shaw, Esquires, appeared as counsel for the Commonwealth; and S. D. Parker and Samuel Hubbard, Esquires, for the defendants.
After a brief explanation of the case by Mr. Austin, he called Stephen P. Fuller, Esq. who testified to the correctness of the plan exhibited, which had been taken by him, under an order of this court, of the part of the harbor and channel, where this wharf is situated, shewing the position of the wharf, the depth of the water, the free bridge, and other local objects in the vicinity. He also testified, ihat the wharf was built one hundred and forty-two feet into the channel, beyond the line of the low water mark, and that it was done by the defendants, and at their expense.
Mr. Austin then quoted the case of the Commonwealth v. the Inhabitants of Charlestown, 1 Pick. 180, and Rex v. Lord Grovesnor & al. 2 Stark. 510, and observed, that it having been proved that the defendants had narrowed the channel, it was therefore to be considered a nuisance, until the contrary should be shown, and that he should rest the cause there on the part of the Commonwealth.
The defendants were then called upon for their defence; and Mr. Parker, on their behalf, insisted, that the government