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frontier against four times the force, and to invade the enemy's territory; that armies larger than any England ever had on foot can in a few weeks be placed at a threatened point; that economy of money in time of peace makes expenditure in time of war more easily borne; that the country is full of skilful and well educated military men, sufficient to officer an army of 200,000, and the aptitude of the people for military exercises will not, we think, be questioned. In respect to materiel, the resources of this country are exhaustless. With all these elements of creating the instrument, and the acknowledged ability of our tacticians, we will not doubt that strategical genius will be found when required. In fact, from the progress of the science of war, it must result that the maintenance of armies will become unnecessary; that the preservation of the science in its vigor will always suffice for a nation's wants.
of the United States. It is true that by
"crack regiment," in which the offices are the reward of great merit in the remainder of the arm. The artillery arm is nominally divided into regiments. Artillery acts by batteries and not by regiments.* The term battery when applied to artillery means a certain number of cannon, with the men, &c. required to serve them. A battery is usually six pieces, four of them 6 lb. guns, and two 12 lb. howitzers. The royal artillery is composed of 72 companies of 80 men each, one-half of them are in the colonies, from Canada to To each company New Zealand. there are two captains, two 1st lieuts. and one 2d lieut. The pay is, lieut. colonel £320, captain £220, lieut. £120, 2d lieut. £100. The men must be 5 feet 8 inches in height, of large frame and considerable bodily strength, and their pay is 1s. 4d. per day. There is no promotion from the ranks except to
The regular army of the United States is now organized as indeed are most modern armies, into staff and administrative departments, and four arms of service, viz, infantry, cavalry, artillery and engineers. The numbers of these are 558, officers and general staff, two dragoon regiments, 1,205, four artillery regiments, 2,303, eight infantry regiments, 3,371, and 427 unattached, being at West Point and elsewhere, making a total of 14 regiments and 8,349 men. The men of the army are enlisted for three years, and are mostly foreigners, German and Irish. The English army has a similar organization, and is composed of 1,703 general officers, 22 regiments of cavalry, 8,303 men; 91 regiments of infantry, 86,797; 8 regiments of artillery, 7,732, and 1200 engineers, sappers and miners. This large force is composed of 51,474 English, 41,218 Irish, 15,239 Scotch. There is a great disproportion between the number of men actually serving as soldiers under the British government and under that of the United States. But it does not follow, because England has kept up so large a force since 1815, at an annual expense of $25,000,000, that therefore her military strength is greater than that
* Elements of Military Art and Science; or, Course of Instruction in Strategy, Fortification, Tactics of Battles, &c. &c.; adapted to the use of Volunteers and Militia. By H. Wager Halleck, A. M., Lieut. of Engineers, U. S. Army, D. Appleton & Co., 200 Broadway.
VOL. XIX.-NO. XCVII.
quarter-masters and adjutants of invalid battallions, and occasionally commissions in the line regiments are promoted to the royal artillery. The royal regiment of horse artillery, which is the head of the arm, is composed of seven troops of horse of 80 men each, of which one troop is called the rocket troop, from being usually practiced with that weapon. These troops never leave England, except in time of war. Five are usually located in England, with two guns to each troop, and two troops in Ireland, with four guns each. The war complement is four 6 pounders and two 12 pound howitzers. The men for this corps are selected from the whole arm, and receive 1s. 6d. per day. They are instructed in the care of horses and in field movements. Each troop has two captains, three 1st lieuts., two sergeant majors, three sergeants, three corporals, and four bombardiers. The officers are selected as vacancies occur, from the body of the regiment, and always for their merits and services. The pay of a lieut. colonel is £400, or $2000, captain £320, lieut. £290. Portions of this corps were in every action of the Peninsular war, and five captains were knighted for their services. Napier tells us that one of the most brilliant achievements of the war, was by a troop at Fuentes d'Onor. The regiments of the line have the name of some battle where they most distinguished themselves, on the colors; but the royal artillery having been always present, they bear the word "Ubique," and the words "Waterloo" and "China" are now added.
All the officers of the Royal Artillery and Royal Engineers pass through the Royal Military Academy at Woolwich. They are required to pass a rigid examination in mathematics, fortification, drawing, history, geography, natural philosophy, French, and grammar.They enter between 15 and 17 years of age, and remain 3 years. The Artillery rank before the Engineers, but the latter get the most pay. The appointments to the academy are in the hands of the Master-General of Ordnance, Sir George Murray, and are always given to sons of the nobility, gentry, or naval or military officers. Each cadet pays £120 per annum, and the whole expense which each incurs is about £1200 per annum. All promotion from the academy is by pro
ficiency in study, and in an average of 20 years 3 out of 5 obtain commissions. This corresponds very nearly with our West-Point system, except that the appointments are not confined to nobility, and the cadets are paid by government. A greater number graduate annually at West-Point than at Woolwich. The West-Point cadets are the most thorough, because they have all to live by it as a profession. The Woolwich cadets being all nobles, and most of them wealthy, and to hold the office when won requiring an annual expense from private means, the chances are, that more science is acquired at WestPoint than at Woolwich. The degree of military knowledge diffused through the people of the United States is therefore as great as in England. If they do not incur as great an expense in time of peace to keep up the drill of the men, they are not, therefore, the weaker. On the other hand the national wealth, which constitutes the sinews of war, increases the more rapidly. The expensive organization of England would give her greatly the advantage were the two nations to send out expeditions to any given point; as for instance in the case of the African coast. Under the Ashburton treaty the United States undertook to keep a certain number of guns there to attempt to suppress the slave trade-a useless and most onerous engagement; so much so, that already the English minister has complained that the required number were not present. To send troops to England or off this continent will probably never be undertaken; and in the present prospect of affairs no European power or powers will ever be able to send a sufficient force to this continent with the object of attacking the United States. The art of war, as matured under the system of Napoleon, can, therefore, have but little practical application to the United States. The scientific knowledge and the understanding of the higher principles of the art, are all that it is required of our people; and with that knowledge they are stronger without a standing army than the most powerful European government resting on its military force. It is coming to be understood that the number of guns owned by a government, or the number of men it drills daily, do not constitute its strength, nor are they a guaranty of the national prosperity.
HOWARD'S SPECIAL TERM REPORTS.*
"Motion in arrest of judgment that the pyed horses were mares; and thereupon an inspection was prayed-et sur ces le court advisare vulp."-Scriblerus Reports.
There were theological persons in Ancient Egypt, good judges probably of their business, who walked in solemn procession to water dead sticks planted in the sand; thus illustrating the vanity of earthly endeavors. We in modern New-York have legal individuals, good judges also, no doubt, who eight times in each year, in February, March, April, June, August, September, October and December, water with their wisdom, and cherish with their protection, the arid points of practice of the courts; fully impressing upon suitors the folly of those who suppose that Justice is to be obtained from Law. In the second century, in the land of darkness, and in religious observances, we might look with indulgence upon a quiet absurdity which merely made the perpretrators ridiculous, and no one unhappy-but that in the nineteenth century, a people, who pride themselves upon their utilitarian common sense, should permit their judicial officers, in the business concerns of every day life, to listen to arguments, and to make decisions upon points as quibbling and as empty as the quiddities and entities of our mediæval progenitors, would be scarcely conceivable to a stranger who
not aware of the centuries it requires to eradicate popular custom or opinion, however absurd.-"I have often thought, if the wisdom of our ancestors had excluded all persons with red hair from the House of Commons, of the thousand convulsions it would occasion to restore them to their natural rights! What mobs and riots would it produce? To what infinite abuse and obloquy would the capillary patriot be exposed ?" The blind devotion of the English for every thing they peculiarly possess, has descended upon the children of their colonists in the matter of the Common Law-a system
of jurisprudence in many respects unfitted to our peculiar institutions; but we live on and suffer on under this "red-haired" dispensation. If we dare grumble at the palpable inconsistencies of the Law of Evidence, at the unfair and unrepublican system of Bail, at the folly of maintaining in this country the vestiges of the feudal law of real property, and hint at the expediency of a code, the bar, one and all, gray-haired counsellor to the scarce fledged attorney, are down upon us with " Ignorance! Innovation! Uncertainty! a System hallowed by ages!"-Hallowed by ages? The old woman's reason for eating peas with a knife-she always had done so. If the system needs amendment, let us at least attempt it. What can be more essential to the welfare of a wise people, than the proper adaptation of the rules by which all the concerns of life are carried on, to their habits, characters and occupations?
We have no idea, however, of striking at the Common Law as a system. Neminem oportet esse legibus sapientio rem. Let us return, then, to the publication before us.
The ordinary points of law arising in suits, are tried at four general terms in the year by the three judges in bench, as is very well known by our NewYork readers. But other questions arise in "Practice," which is a kind of law-judge-made. Suitors are stopped in limine. There is a word or two misplaced in the papers; the court cannot be trifled with. In the vestibule of the temple of justice sits a man who examines whether the pilgrim has complied with all the ceremonies requisite to gain his admittance to the shrine. Wo be to him if he has omitted a genuflexion or a prayer! This man is holding a Special Term; he does it
New-York Supreme Court Special Term Reports. By Nathan Howard, Jr., Counsellor at Law, and Deputy Clerk of the Supreme Court.
↑ Peter Plymley.
eight times in the year; he admits or rejects, gives or refuses, as he thinks fit. Formerly these terms lasted only a day; now they continue a week, sometimes a fortnight. These cases Mr. Howard, in the volume before us, has reported at some length, and we believe carefully. The work is well supported; indeed, our practice is so Protean in its bewildering forms, that an attorney can scarcely do without the work. It is this usefulness that we complain of, as showing that justice takes more note of the forms than of the merits of the cases which are laid before her.
of all and every of the witnesses above named." It should have been, quoth the justice, each and every of the witnesses. If there is any difference between the two, all and every expresses the required necessity of the witnesses more fully than each and every.
* Mills vs. Adsit, p. 83, is a similar case. The affidavit of the defendant was as follows: "that he had a good and substantial defence on the merits to the whole of the said plaintiff's demand, as he is advised by his said counsel and believes to be true; that he has also fully and fairly disclosed to his said counsel what he expects to prove in the trial of this cause, by each and every of the witnesses hereinafter named; that he cannot safely proceed to the trial of this cause without the benefit of the testimony of each and every of the said witnesses;—that the testimony of each and every of the said witnesses is material and necessary to this deponent, on the trial of the said cause, as he is advised by his said counsel, and verily believes to be true, &c." Bronson denied the motion, because the words he is advised by his said counsel," &c. were not again inserted after witnesses, as if the last paragraph did not say every thing that could be said. Strain the construction as you please, and the only fault is an error in legal grammar; but "mala grammatica non vitiat chartam," says the axiom. Comment is unnecessary on these cases. It is difficult to imagine how men of ability, information and high position, can condescend to quibbles and equivocations for which children would be whipped by conscientious parents.
From these Reports we have selected a few cases as examples, in order to give men, who take a common sense and not a special term view of their affairs, an opportunity of knowing and appreciating the exquisite subtlety with which the justices treat the important question of the difference between tweedledum and tweedledee.
Be it known to the lay gents' that in order to change the place of trial, or the venue,' an affidavit of the convenience and necessity of witnesses is required. In Dimon vs. Dimon, vol. 2, p. 91, the defendant in his affidavit named his witnesses: "who each and all reside in Tompkins county, are material witnesses for the defendant on the trial of this cause, without the testimony of whom, and the testimony of each and every of whom, he cannot safely proceed, &c." The justice denied the motion, because the affidavit did not state that each and every of the witnesses were material, &c. But the affidavit did state that the testimony of each and every witness was material; and as there is nothing material in a witness but his testimony, and as the affidavit says that all the witnesses are material, it would seem to be expressed as clearly as possible that each and every of the witnesses were material. Certainly there is not a shadow of difference in the meaning.
The reports are full of such special absurdities. In Kellog vs. Kellog, v. 2, a declaration in ejectment was served on the wife of the defendant. Defendant appeared to the declaration. Afterwards, it was moved that the proceedings should be set aside, because the wife was not "on the premises" at the time of the service, according to the letter of the statute. The object of the requisitions of the statute is to ensure to the defendant a knowledge of the proceedings against him. In this case no injury resulted to him; he was duly informed of the service, assented to it, and appeared in the action. The Chief
In the case of Harris vs. Clark, page 82 of the same number, the same motion was denied, because the defendant in his affidavit swears: "that he is advised by counsel, and verily believes, the defendant cannot safely proceed to the trial of this cause without the testimony
* Young vs. Arndt, v. i., p. 227, is a similar case. There are many others of the same nature.
Justice, nevertheless, held that such an irregularity was fatal, and set aside the proceedings.
In another case, defendant swore to the merits of his defence, but in entitling his affidavit misspelt the name of the plaintiff he named him Sundeland instead of Sandland. Held bad.
Sometimes papers must be endorsed, sometimes they must not. Sometimes they must be entitled in one Court, at times in another. There appears to be no general rule. In Stacy vs. Farnham, v. 2, p. 26, an affidavit of ownership was attached to a writ of replevin. The proceedings were set aside because the affidavit was entitled in the cause. In Higham vs. Hayes, v. 2, p. 27, it was refused to set aside an inquest, because the defendant's affidavit of merits was not entitled in the cause.
In another case, a defendant moved to set aside a default which had been taken against him. In his affidavit he swore that he had fully and fairly stated the case in the above entitled cause to Samuel W. Jackson, Esq., his counsel," &c. His motion was denied, because Jackson was not a counsellor of the court, but only an attorney.
In Campbell vs. Spencer, the papers were served as appears by the affidavit of service, viz: he served on L. H. Card, plaintiff's attorney, a copy of the foregoing affidavit and notice, by leaving the same in a conspicuous place in his office at the time above mentioned, the said L. H. Card being then absent therefrom." Nelson held the service bad, because the affidavit did not state that "no person was in the office."
§ In another, a motion was objected to on the ground that the papers, on which it was based, were not served in a wrapper, according to the 101st rule of court. The notice of motion was written on the inside of the wrapper; consequently all the papers were not enclosed in a wrapper. C. J. Nelson denied the motion accordingly.
A Jewish Rabbi undertook a commentary on the Talmud; but on the cover of his copy was a sketch of Moses, well covered with a fur wrapper, but unprovided with shoe or sandal. The Rabbi was stopped in cortice. Here was a difficulty. Was this Moses taken
in winter or in summer? Rabbi, J.
Semble in summer, from the bare feet.
Semble in winter, from the fur wrapper.
And on this knotty point the Rabbi spent thirty years before beginning his commentary. This is a picture, only exaggerated as to time, of much of the special term practice. Summum jus, it seems, is no longer summa injuria, but summa ineptia as well. We might cite many more examples, were it not too melancholy to see grey-haired men thus trifling with truth. Were any of the justices millionaires, we might suppose that they were training their souls, at the special terms, for the difficult passage of the needle's eye.
It is thus, the judges of the supreme court of this state teach the young attorney the tco-easily learned lesson of degrading equivocation, to look not at the case but at the costs, and to wriggle, eel-like, through the grasp of the man who has justice on his side. It is thus they furnish bread to the needy wretches whose legal acquisitions do not extend beyond the rule-book, and destroy the legitimate business and respectability of the profession. The straight-forward merchant, who sees nothing in an action at law but the justice of his cause, cannot be made to understand that it is right and necessary that the wrong side should prevail, because the words "all and every" have been mistaken for "each and every." He avoids the courts, and has recourse, if possible, to compromise and arbitration.
Through this slough of word-mongering all young attorneys must pass. There is no avoiding it. Liberal practice and gentlemanly feeling are no safeguard. They are only life-preservers, which may keep their heads above water and bear them safely over. We are within bounds in saying, that ninetenths of the time and labor expended by a young practitioner are taken up in settling and adjusting points of practice which have nothing to do with the merits of the case, with justice, or with
What is the province of a judge?
Sandland vs. Adams. † Foote vs. Emmons-Peck vs. Whitbeck-Alcott vs. Davis, v. ii., p. 44. Hart vs. McGarry.
§ Birdsall vs. Taylor.