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before us. We think too the author might have insisted even more than he has done, on the little use of which the English books can be in this country. Our criminal jurisprudence deviates so widely from that of our parent country, that a large part of every English book relating to justices, must be of little practical application in the United States.
The work before us is not unworthy of the high reputation, which its author maintains in his profession. It is a very clear and methodical summary of the duties of justices in criminal cases. Although exhibiting much legal science, it is essentially a practical work, and could only have been written by one practically familiar with the subject of which it treats. Justices of the peace will find it a safe and convenient assistant in the discharge of their official labors. The advice, which is occasionally given to the magistrate, is rendered valuable from the long experience of the author; and is well adapted to solve those doubts, which most frequently arise. The directions as to the justice's duty in taking bail, recognising parties and witnesses, and taxing costs, are peculiarly useful and convenient, and but a small part of them are to be found in any other treatise.
The first part of the volume contains a history of the mode of proceeding before a justice in criminal prosecutions. The proceedings are traced accurately and minutely, and the duties of the magistrate are plainly pointed out. The law of evidence, as far as it is necessary, is also included in this part of the work. The second part begins with a collection of forms. They appear to be drawn with great care and skill; and are recommended by their neatness and precision. Everything is stated in a full and satisfactory manner, and yet without that prolixity and tautology, which disfigure too many of the English precedents. This part also comprises the law with regard to the various subjects of criminal prosecutions, alphabetically arranged, and contains forms under most of the titles.
Without asserting that the work before us is free from defects, we are not conscious of any undue partiality in stating, that in correctness and ability it will bear a favorable comparison with the most distinguished treatises on similar subjects. On one subject, however, the law is not laid down. with accuracy; which we notice here, not as a proof of
general inattention, but merely that the sanction of the author's name may not mislead others. It is said, that' Quakers and others, who decline taking an oath on account of their religious scruples,' are permitted to affirm. (p. 18.) The same statement is afterwards repeated. (p. 92, 93.) The statute of this State confines the exemption from taking oaths strictly to Quakers.* The author was doubtless inadvertently led into this error, from the practice which has prevailed, though incorrect, of permitting other persons besides Quakers to affirm, who were scrupulous on the subject of oaths.
In a few cases the author indulges too freely in moral reflections, as for instance, on the subjects of duelling and sabbath breaking. It would no doubt have been proper for him briefly to express his sentiments on offences of this nature, but the discussions and animadversions running through several pages are rather out of place in a legal treatise.
The following extract, relative to breaking open houses, for the purpose of apprehending offenders, and preventing crimes, is interesting to readers of all classes.
'In what cases doors may be broken open in furtherance of the purposes of justice, are questions of great delicacy and importance, in relation to the execution of warrants, and the apprehension of criminal offenders. A knowledge of the law, as it concerns the powers and duties of officers in these cases, becomes more important and necessary from the circumstance, that the most eminent writers upon the criminal law have differed in their opinions upon this subject.
The first general principle is, that no man's house or castle can be violated with impunity, except in those cases only where absolute necessity compels the disregard of inferior rights, in order to secure public benefit; and therefore in all cases where the law is silent and express principles do not apply, this extreme violence is illegal. And this principle is carried so far in the civil law, that for the most part, not so much as a common citation or summons, much less an arrest, can be executed upon a man within his own walls. There is a distinction between the powers of officers and private individuals in this respect. For it is said that the former,
*Mass. st. 1810. c. 127. See also 2 Gall. R. 364. In this case, a witness, not a Quaker, refused to take an oath, alleging conscientious scruples. But the judge said that the statue only extended to Quakers; and committed the witness for a contempt.
being enjoined by law to apprehend a party suspected, may be justified in breaking open doors to apprehend him, on mere suspicion of felony; and will be justified though it appear that the suspicion was groundless; but a private individual acts at his own peril, and if the party be innocent would be liable to an action for breaking open doors without warrant.
'The reason of this difference between the arrests of private persons and officers, upon suspicion only, is, that in the former case the arrest upon suspicion is only permitted; and if omitted is not punishable; and therefore they are not permitted to break open doors; but in case of officers, they are punishable, if they omit this duty. Another and sufficient reason arises from the great inconvenience and danger of admitting every private man, upon pretence of suspicion, to break open houses; whereas officers, and the authority with which they are clothed, are publicly known and presumed to be sufficient.
It is a principle of law so clearly settled, as that no doubt or fear need be apprehended concerning it, that when it is certain a felony has been committed, or a dangerous wound given, and the offender, upon pursuit, takes refuge in his own house, either a constable, or other peace officer, or any private individual, may, without warrant, break open his doors, if refused admittance after proper demand. And when an affray is made in a house, in the view or hearing of a peace officer, he may break open the outer door in order to suppress it. So in some extreme cases it has been holden, that a private individual may break and enter the house of another, to prevent his murdering one who cries out for assistance. But it is doubted whether this power extends to an officer or private person when felony is only suspected, and has not been committed within the view of the party making the arrest. It is said to be certain that an officer may break open doors, upon the positive information of another who was actually a witness to the felony; and a marked distinction between the power of officers and private individuals is, that the latter can act only on their own knowledge, while the former may proceed on the information of others. A peace officer may justify an arrest on a reasonable charge of felony without a warrant, although it should afterwards appear that no felony had been committed; but a private individual cannot. We may therefore take it as settled law, that a private person may break open doors after a proper demand and notice, when he is certain that a felony has been committed; and that a constable may do the same upon the information of the party in whom the knowledge, or reasonable suspicion exists.' p. 67-69.
ART. VII.-The Philosophy of Natural History, by William Smellie, Member of the Antiquarian and Royal Societies of Edinburgh; with an Introduction and various Additions and Alterations intended to adapt it to the present State of Knowledge. By JOHN WARE, M. D. Fellow of the Massachusetts Medical Society, and of the American Academy of Arts and Sciences. 8vo. pp. 336. Boston. Cummings, Hilliard, and Co. 1824.
FEW departments of knowledge are more interesting than Natural History, and the attention which is now given to it furnishes the best evidence, that its claims to notice begin to be fully estimated. The inducements to its cultivation are peculiarly strong in our own country, whose immense lakes, forests, and mountains, have as yet been but imperfectly explored by Naturalists, and the little that is known of their productions ads to the belief, that they contain abundance to encourage and reward the labors of science.
It has been among the reproaches cast upon us, that we are compelled to look into the works of foreigners for the Natural History of our country, and though this is no longer true with regard to the vegetable kingdom, yet even in this, as well as in the others, the harvest is still abundant and the laborers but few. A taste for this science cannot be too early formed; for Natural History is a study peculiarly well adapted to the young, from the great interest which it excites, from the exercise it gives the intellectual faculties, and from the sources of pure and innocent enjoyment, which it cannot fail to open; and we know of no work better calculated for an elementary one, than the Philosophy of Natural History by Smellie. It has long been regarded with favor for the excellence of its plan, and the general accuracy of its details. It gives a cursory view of the structure, functions, habits, and peculiarities of animals, the distinction between them and vegetables, beginning with man and descending to the lowest and most imperfect of the animal creation, and it abounds throughout with profound and philosophic views of the subject. In this way the minute details of the science are avoided, and the young beginner is not compelled, at the outset of his career, to burden his memory with a copious and unintelligible nomenclature.
VOL. XIX.-No. 45.
To a certain extent this arrangement is highly judicious, but it is no doubt proper that the student should as early as possible become acquainted with the general outlines of the classification, and the principles on which it is founded, otherwise much of the science will appear to him obscure and confused. The want of this general classification was unquestionably a very great defect in the original work of Sinellie, and there is another, of a different character however, arising from the great advances that have been made in science since the time of its publication, a period during which probably greater progress has been made in Natural History than in any other equal portion of time. In presenting therefore a new edition to the public, it was desirable to adapt the work to the present state of knowledge; to incorporate into it all the improvements and discoveries that had been subsequently made; to reject all that portion which later researches had shown to be erroneous; and thus remove the greatest objection to its general use as an elementary book of instruction. This task has been performed by Dr Ware; he has retained as much of the original as the advanced state of science would allow; he has judiciously altered, as far as practicable, what was obsolete, and where that was not possible he has given new matter in the place of the original. The two first chapters of Smellie are entirely omitted, and instead of them we are presented with a sensible, clear, and well written introduction divided into three chapters, the first of which treats of the nature of living bodies, and the distinction between animals and vegetables, and the second and third of the structure of vegetables and animals.
All the productions of nature may be divided into two great classes, namely, those that possess life, and those that do not; the former includes animals and vegetables, the latter minerals alone. The first class differs from the second in its origin; every individual belonging to it being the production of a preceding one, and being endowed with the power of contributing in some way to the continuance of its species. This distinction is very striking and important. Nothing analogous exists in minerals; it is by no means however the only distinctive character, though perhaps the most remarkable one. Animate bodies differ also from inanimate ones in requiring something extraneous to contribute to their nourishment