Chap. 576: To provide for the introduction of ...... PAGE. 504 New York statutes at large-(continued). 3 emos- nor taline. illiam rister; end of d, and jult of in the in his 523 503 Notes, occasional, Notices, publication of, 424 444 222, 243, 259, 343 ..... 14, 34 Notices of new books,..... 17, 58, 79, 97, 118, 160, 180 Obiter dicta, Obituaries: O. 282 138, 159, 179, 213, 237, 272, 296, 314 Hon. Horace Binney, Jr.,. James T. Brady,. Judge Field, of New Jersey,. Chief Justice Hinman, 444 Gov. Jewell, 504 Chap. 597: To amend an act entitled "An act Chap. 717: To authorize the sale of real estate 504 ed con- he un- | Those rdinary 119 le effect; Occasional notes,. 14, 34 O'Conor, Mr., and the New York code, 302, 345 ke off the 399 Our won- 484 dians, the Precedent for a bill of costs,.. 266 we admit, - and they Pitt and 464 Chap. 741: To amend the code of procedure, 383 to authorize the board of supervisors of the 504 Print of Westminster Hall: lines inscribed on a,.. 268 of poetry, ery school- desires to All communications intended for publication in the LAW JOURNAL should be addressed "Editor Law Journal, Albany, N. Y. ;" and the name of the writer mained mute and inglorious. Never would Demosthenes have charmed an Athenian audience, nor Cicero have hurled his denunciations against Cataline. Lord Chatham would have remained simple William should be given, though not necessarily for publi- Pitt, and Erskine lived an ordinary English barrister; cation. Communications on business subjects should be addressed "WEED, PARSONS & Co., Albany, N. Y." The Albany Law Journal. ALBANY, JANUARY 8, 1870. ON THE STUDY OF FORENSIC ELOQUENCE. There is another essential, aside from a knowledge of the law, for the successful court lawyer - that is eloquence; that sort of eloquence which Blair defines to be "the art of speaking in such a manner as to attain the end for which we speak." Most young men, who study with a view of coming to the bar, have an ambition, more or less strong, to become advocatesto be able to convince judges and persuade juries by the power of their logic and the graces of their style and utterance; but a visit to our courts is but too likely to show how lamentable the great majority of them fail of achieving their desire. Lack of perseverance in performing the labor necessary to the student of elocution, or ignorance of the method to be pursued, or, in many cases, a notion that orators, like poets, "are born, not made," has served to make the number of eloquent advocates very small indeed. The almost universal idea seems to prevail, that industry can effect nothing; that every one must be content to remain just what he happens to be, and that eminence is the result of accident. For the acquirement of any other art, men expect to serve long apprenticeships; to study it carefully and laboriously; to master it thoroughly. If one would learn to sing, he attends a master and is drilled in the elementary principles; and it is only after the most careful discipline that he dares to exercise his voice in public. If he would learn to play a musical instrument, how patiently and persistently does he study and practice, that he may draw out, at will, all its various combinations of harmonious sounds, and its full richness and delicacy of expression. And yet a man will fancy that the grandest, the most complex, the most expressive of all instruments, which is fashioned by the union of intellect with power of speech, may be played upon without study or practice. He comes to it a mere tyro, and thinks to manage all its stops, and command the whole compass of its varied and comprehensive power; he finds himself a mere bungler in the attempt, wonders at his failure, and settles it in his mind forever that the attempt is vain—that it can be done only by genius. Nothing can be more mischievous and unfortunate to the student than for him to fall into such an errorto hold the opinion that excellence in speaking is a gift of nature and not the result of patient and persistent labor and study. If all men had entertained and acted upon such an opinion, those who have won fame and honor by their eloquence would have re Curran would have been "Orator Mum" to the end of his days, and Choate died "unwept, unhonored, and unsung." He Men who believe that eloquence is the result of genius, and not of labor, are like the dwellers in the East, as described by Sir Joshua Reynolds in his address to the pupils of the Royal Academy. says: "The travelers into the East tell us, that when the ignorant inhabitants of those countries are asked concerning the ruins of stately edifices yet remaining amongst them the melancholy monuments of their former grandeur and long-lost science, they always answer: 'They were built by magicians.' The untaught mind finds a vast gulf between its own powers and those works of complicated art, which it is utterly unable to fathom; and it supposes that such a void can be passed only by supernatural powers." What Sir Joshua says of painting is true of oratory. Those who know not the cause of any thing extraordinary and beyond them may well be astonished at the effect; and what the uncivilized ascribe to magic, others ascribe to genius,-two mighty pretenders who, for the most part, are safe from rivalry only because by the terror of their names they discourage in their own peculiar sphere that resolute and sanguine spirit of enterprise which is essential to success. But as has been well said, "all magic is science in disguise," and it is our object in this article to proceed to take off the mask-to show that the mightiest objects of our wonder, so far as eloquence is concerned, are mere men like ourselves, have attained their superiority by steps which we can follow, and that we can walk in the same path even though there remain at last a broad space between us. Lord Chesterfield was not very far wrong when, in his letters to his son, he told him that any man of reasonable abilities might make himself an orator; not an orator like Cicero's magnificent myth, who should have "the acuteness of the logician, the wisdom of the philosophers, the language almost of poetry, the memory of lawyers, the voice of tragedians, the gesture of the best actors;" such orators, we admit, must be nascitur, non fit - born, not made - and they are rarely to be found; but orators like Pitt and Fox, like Mansfield and Erskine, like Pinkney and Choate orators who can "sway listening senates," who are stormy masters of the jury-box. Chesterfield was perhaps an illustration of his own theory for he said that he at one time determined to make himself the best speaker in Parliament and set about a severe course of training for it; and we have he was the first speaker of the House. Every schoolthe opinion of so able a judge as Horace Walpole that boy can tell you of the gigantic labors of Demosthenes in training himself for a public speaker. It will be refreshing for any student who desires to improve himself in speaking to turn to Plutarch's life of Demosthenes, and read of his early struggles with obstacles which would have discouraged at the Cicero's De Oratore, Book I, c. 28. 6 THE ALBANY LAW JOURNAL. those who would follow in their steps must give their days and nights to study, and emulate their greatness by emulating their love of labor. In our next number we shall offer some suggestions as to the best means of improvement in forensic rhetoric. THE DUTY OF CARRIERS AS TO PROVIDING ROAD-WORTHY CARRIAGES. The English Court of Exchequer has recently decided a case - Redhead v. The Midland Railway Co. (20 L. T. Rep. 628) - which is of interest in this country, and which will probably hereafter be taken as a precedent in all cases relating to the liability of carriers of passengers. In that case, the plaintiff, whilst a passenger on the defendant's road, was injured by an accident, caused by the breaking of the tyre of one of the wheels of the car in which he was seated; it was proved that such breaking was owing to an air-bubble, which could neither be discovered in the course of manufacture nor afterwards, and that in fact there was no negligence on the part of either the manufacturer or the railway company. LUSH, J., who tried the case, directed the jury that if the accident could not be foreseen, and was not due to any fault or carelessness on the part of the defendants, they were entitled to a verdict; and this ruling was afterwards upheld by MELLOR and LUSH, JJ., in the Queen's Bench, though dissented from by BLACKBURN, J. (Law Rep. 2 Q. B. 412). The Exchequer | Chamber has now unanimously sustained this judgment, after a most careful review of both the English and American decisions, and established, so far at least as England is concerned, the principle that carriers of passengers are not warranters of the absolute roadworthiness of their vehicles, or in other words that there is no implied contract that their carriages and machinery are free from those defects which neither skill, care nor foresight can detect. This decision is commended alike by sound sense and an almost unbroken current of authorities. Carriers of goods are insurers against all events but the act of God and the king's enemies. The reason of this rigid rule is, as Lord HOLT says, in Cogg v. Bernard (1 Sm. Lead. Cas.), that men are obliged, when they intrust their goods to carriers, to part with all control over them, and that, if carriers were not insurers, it would be easy for them to combine with thieves, and that "in such a clandestine manner as would not be possible to be discovered." But with regard to the carriers of passengers, the same rule has not, with one or two exceptions, to be hereafter noticed, been applied, "and for the obvious reason," as Judge HUBBARD remarked❘ in Ingalls v. Bills (9 Met. 1), "that a great distinction exists between persons and goods-the passengers being capable of taking care of themselves, and of exercising that vigilance and foresight in the maintenance of their rights, which the owners of goods cannot do, who have intrusted them to others." The carrier of passengers undertakes that as far as human foresight can go he will provide for their safe conveyance. The ground upon which his liability rests is negligence, while the ground of the liability of the carrier of goods is the absolute warranty for safe | delivery in any event. This we understand to be the distinction drawn by the great body of authorities between the two classes of carriers. But in this State the Court of Appeals has attempted to establish a rule ignoring this distinction, and rendering the obligation of the carrier of passengers as extensive as that of the carrier of goods. In Alden v. The N. Y. Central Railroad Co. (26 N. Y. R. 102), the court lays down the broad proposition that the passenger carrier is bound, absolutely and irrespective of negligence, to provide road-worthy vehicles. In that case the accident was caused by the breaking of an axle of the car. The weather was, and had been for some time, extremely cold, which tended to render the iron brittle. There was a small, old crack in the axle, so covered by the wheel that it was absolutely out of reach of discovery by any practicable examination of the axle, unless by taking off the wheel, with great difficulty and labor. No claim was made that the axle had not been properly manu factured. The opinion in the case is very brief and seems to have been prepared without an examination of the many cases bearing on the question. This may account for the extraordinary proposition it attempts to establish. The judgment is founded on the case of Sharp v. Grey (9 Bing. 457), which was the only case cited, except that of Hegeman v. The Western Railroad Company, which we shall notice hereafter, and which had evidently no influence in shaping the opinion of the court. If the interpretation given to the case of Sharp v. Grey by the Exchequer Court in the case of Redhead, before cited, be correct, it is evident that the judgment in the Alden case is unwarranted by it, and stands without a precedent. Speaking of that case SMITH, J., who delivered the opinion of the Exchequer Court, says: "That case, when examined, furnishes no sufficient authority for the extensive liability which the plaintiff seeks to impose upon the defendant. There the plaintiff was injured by an accident caused by the breaking of the axletree of a stage-coach. The defect might have been discovered if a certain examination had taken place; and it was made a question of fact at the trial whether it would have been prudent or not to make that examination. TINDAL, C. J., who tried the cause, is reported to have directed the jury to consider whether there had been, on the part of the defendant, that degree of vigilance which was required by his engagement to carry the plaintiff safely. Now, if the learned Chief Justice had supposed there was an absolute warranty of road-worthiness, this direction could not have been given, as it would then have been immaterial whether the defendant had used vigilance or not, and the degree of vigilance would have been an utterly immaterial consideration. The jury having found, on his direction, for the plaintiff, a motion was made, in the absence of TINDAL, C. J., for a new trial. Two of the learned judges, in refusing the rule (GASELEE and BOSANQUET, JJ.), are certainly reported to have used expressions which seem to indicate that they thought the defendant bound to supply a road-worthy vehicle. PARK, J., used language which, as reported, is ambiguous. But the judgment of ALDERSON, J., |