used at a later day, for it is well known that Mr. Webster knew his powers, and relied on them implicitly, when he had enjoyed a ripe experience in the practice of the court.

This is an important point, and deserves to be well considered; for it helps us to fix the cases somewhere between the years 1813 and 1817, when Mr. Webster left New Hampshire for Massachusetts. It does this, despite Mr. Webster's remarkable failure of memory. I say remarkable, for it will be borne in mind, that he remembered the insult offered; he remembered the apology enforced; he remembered all that he said in the interview, to the minutest word; he remembered all that Pinkney did in his self-humiliation; he remembered the effect on the court. And yet, mirabile dictu, he did not remember the case! I call this a remarkable failure of memory, in one, who, it is said, retained in such vivid recollection all else that occurred, even to the key in the door.

Mr. Webster went to Congress (extra session), from New Hampshire, in May, 1813. He remained a member until March, 1817. In 1817 he took up his permanent abode in Boston. This is a matter of history. During all this time he was counsel in only three cases in the Supreme Court: The St. Lawrence from New Hampshire, 1814, 8 Cranch, 435; The Grotius, id. 457, and Paulet v. Clark, 1815, 9 id. 295. The fewness of the cases ought to have assisted a memory less noted for its extraordinary retentiveness than Mr. Webster's.

In all this time, while Mr. Webster was a member of Congress from New Hampshire, I am bold to say, and I defy contradiction, that he and Mr. Pinkney were never engaged in any case in the Supreme Court, either on the same side or opposite sides. I speak from the record. That cannot lie. Mr. Pinkney was not of the counsel in either of the cases above cited, and they were the only ones that Mr. Webster argued from 1813 to 1817. In 1816 Mr. Pinkney went abroad, and did not return until 1818.

Am I not then warranted by the record, in saying that there is not the slightest ground for this story which comes to us so highly colored, and in such dramatic garb. On any fair interpretation of the language imputed to Mr. Webster, we are justified in the conclusion that the case, if it ever existed, must have been coetaneous with the period of his earlier practice at the bar of Washington, and while he was the "gentleman from New Hampshire." Now the records of the court show, that a conflict between Mr. Webster and Mr. Pinkney, in all those years, was a sheer impossibility, seeing they were never employed in the argument of the same cause from 1813 to 1817, in that highest tribunal of the country.

Can stronger proof be demanded that Mr. Harvey is in error? Does it look like Daniel Webster, this speaking of a grand jury room in the capitol, when no such room is in existence and this strange forgetfulness of the fact, that the records of the court show the utter impossibility of the thing alleged? It is indeed a matter of unfeigned surprise to me, that any one who shared Mr. Webster's confidence and love, could impute to him such a tissue of contradictions. There must be a mistake. In tenderness to Mr. Webster I am constrained to believe there is.

I feel that I might safely rest my defense here. For it is not possible to resist the evidence I have educed from the records, or to escape the clinching force of the words," the gentleman from New Hampshire". words which do limit the boundaries of the charge.

But I will pursue the subject a step farther, and proceed now to show, that from 1817 to 1822, there is no shadow of proof that such a scene as that portrayed occurred, but proof directly the reverse.

The first case in which Mr. Pinkney appeared, after his return to the United States, was M'Culloch v. State

of Maryland. Mr. Webster opened the argument on the same side with Mr. Pinkney. He was not then new to the scene nor was he the gentleman from New Hampshire. He hailed from Massachusetts. It is obvious that there could have been no new insult offered and no apology made on that occasion. Justice Story, a Massachusetts man, passing Mr. Webster by, singles out Mr. Pinkney's speech: "I never in my life heard a greater speech, it was worth a journey from Salem to hear it; he spoke like a great statesman and patriot, and sound constitutional lawyer. All the cobwebs of sophistry and metaphysics about State sovereignty and State rights he brushed away with a mighty besom." Story's Life, vol. I, 325.

The late Virgil Maxy, whose tragic death on board the Princeton saddened all hearts, a man of rare ability, and an honored son of Maryland, said it was the greatest constitutional argument ever addressed to any court. It will be borne in mind that this was the very topic which Mr. Webster so ably and eloquently discussed in his immortal speech against Hayne, many years after. Story was full of rapture over that speech. Could it have been possible for him to have kept silence if the great advocate from his native State had been so wantonly outraged in open court by Mr. Pinkney? Besides, in the unremembered case to which Mr. Webster is reported to refer, they were on opposite sides. "Mr. Pinkney was employed to argue it against me.'

The true state of the fact is this: they were opposed to each other for the first time in 1821. 6 Wheaton, 453; again in 1821, 6 Wheaton, 489; and finally in 1822, Ricord v. Clarke, 6 Wheat. 105. It will be remembered that in all these cases Wheaton was the reporter and must have witnessed all that occurred. He wrote the life of William Pinkney, was himself a northern man, and yet not the slightest allusion is made by him to any difficulty, either insult offered, or apology made. In two of these cases Justice Story delivered the opinion of the court; and yet he is as profoundly silent, notwithstanding he did make mention of an incident that occurred between Pinkney and Emmet, in the argument of a case in prize law.

It will be borne in mind that this alleged interview between Webster and Pinkney was without witnesses. "There was no one in it (the room), and we entered." So that, if the narrative of Mr. Harvey be accepted as accurate, Mr. Webster must occupy the most unenviable position, to use no stronger language. His great antagonist was dead. The secret was kept carefully locked up in his own bosom until it could be divulged without the seeming possibility of a refutation, since the case was not remembered, and when there could be no responsibility incurred by the publication of it. A rose-colored description is given of his own heroic bravery, which is placed in a sort of poetic contrast with the dastardly cowardice of his rival. It is a very easy thing to hold private interviews with other people, and long after they are dead dress up the act behind the scene so as to make an Achilles of ourselves and base poltroons of them. But will any honorable man hold back what he has to say of another until that other is dead, and then seek to blacken his character when the opportunity of nailing the falsehood to the counter, if it be a falsehood, is denied him? I leave all honorable men to answer.

It may be laid down as a rule most equitable and just, that no man should ever attempt to draw a picture of himself in contrast with another, and no man should ever attempt to remove the veil that conceals a scene in which he was an actor with no witnesses present where another was concerned, and that, too, long after his death, and when the very case in which the scene occurred was forgotten. Permit a man to do this, and who is safe from grossest vituperation and slander?

Stabbing in the dark is no feat of heroism. It is no indication of a mind bent on right, or a heart given to noble deeds of valor.

No one who knew Mr. Pinkney will believe this story. It is too artistically drawn. Mr. Pinkney's courage had been too often tested to be questioned. Of powerful physical frame, and a moral nerve that few men possessed in equal degree, he had no occasion to quake and tremble in the presence of the distinguished son of Massachusetts, even though "his eyes were very dark and firm."

No man dared to brand him a poltroon while he was living. Mr. Webster confesses that he did not resent in open court the insult alleged to have been offered. His silence during Mr. Pinkney's life-time must be his bitterest condemnation, if we accept as correct Mr. Harvey's account of the case. Mr. Harvey must be in error then. Otherwise, I should be forced to the conclusion that Mr. Webster had boasted of a feat of valor which he never performed, while he took good care not to boast of it until he had taken the wise precaution to screen himself from all responsibility. It surprises me that any near friend of Mr. Webster should have failed to see the dilemma in which this narrative, if true, must place him. The trumpeter of his own fame, the traducer of another long since dead with no witness adduced, and not even the case remembered!

I call to the public to bear witness that this is a most wanton assault, calmly and deliberately made. The repose of the dead is invaded. The very grave is outraged. Pinkney is not alive to defend his fair name. Can any man who knew Mr. Webster believe that he did so mean a thing as to indulge in such disgusting self-laudation and gross abuse of his dead rival? I hold that the narrative recorded is a moral impossibility. Daniel Webster was not a bully. Every instinct of his nature would have recoiled from such a scene. It is not like him. And no man who knew William Pinkney will believe that Mr. Webster, if he had been a bully, would have dared to do it in Pinkney's lifetime, and to his face. It does not comport with the dignity of the court, for Judge Marshall would have rebuked an act of such gross discourtesy on the spot.

I turn then from Mr. Peter Harvey, who has recorded it, to the many warm admirers of Mr. Webster, and address to them this my solemn remonstrance. And I greatly mistake the character of the men to whom I address this appeal, if they do not discard the deed as one of which Mr. Webster could not possibly be guilty.

I again declare that I do not believe that Mr. Harvey made it up. I am quite sure that he is earnest and honest in his conviction of its truth. But he is liable to error-and I am satisfied that he is in erroran error that does the grossest injustice to both of these distinguished men. I can conceive how the mistake occurred. At all events, this is the only charitable construction I can put on this strange, strange narrative.

It may be said that this defense is long delayed. My answer is, that I had no knowledge of the existence of the book or its contents a week ago. It may be said, why revive the subject at this late day? I reply, because that book may pass into history; and also, because of the high reputation of its hero, it may be read in years to come, when men will not pause to inquire whether what it contains is true or false, and when, perhaps, silence will be considered proof of acquiescence.

There are other things in the book which might afford room for comment. Mr. Webster's instructing William Pinkney in Blackstone might excite a smile in those who know that Pinkney never parted company with his text-books, or failed to have them at his

fingers ends. He was as familiar with Blackstone and Coke as he was with the first letters of the alphabet. What Mr. Webster thought or said of Mr. Pinkney as a lawyer or a man gives me no concern, save that I should deeply deplore any lack of that noble quality which is nowhere more beautifully expressed than in his noble speech against Hayne-the quality that takes no delight in dragging others down.

At a moment when the heart does give out its truest utterances, Mr. Webster asked permission to follow Goodloe Harper in his splendid eulogy on Pinkney, and then and there he did utter words of pathos and power -words which could never have fallen on the grave of the dastardly wretch which Mr. Harvey now tells us Webster declared him to be.*

Marshall, Story, and Taney have all spoken. They were the three greatest lights that have shed lustre on law in courts of justice. They were the three severest judges of legal eloquence and legal logic, and none could so probe to the bottom the just claims of any man to either. They are on record. With one of them. Mr. Pinkney was on terms of the most intimate friendship, while his relations to the other two were of the most genial nature.

The reports of the Supreme Court are an enduring monument of his vast learning and surpassing eloquence and penetration. The late Walter Jones, himself the embodiment of all that constitutes truest logic and sublimest eloquence, said to me a short time before his death, that William Pinkney was a man of a century, and that is what Story says of him in his life.

I would not detract from Daniel Webster to exalt or magnify my uncle, if that were possible. I am too jealous of my country's heritage of glory to be betrayed into any such weakness. I would not dim the lustre of a single star in her glorious galaxy. Dulany, Martin, Hamilton, Dexter, Emmet, Spencer, Jones, Binney, Tazewell, Wirt, Upshur, Legaré, Robert C. Winthrop, Prentiss, Wharton, Johnson, McMahon, Marshall, Story, Taney, are all hers, and to them she can point the eye of the ages to come; and not to them only, but to others not less than they-Clay, Calhoun, Webster, and Wright. I knew Mr. Webster's powers too well, and I had felt his magnetic influence too often not to be the willing witness to his marvellous grasp of intellect. But tamely to submit to this effort of Mr. Harvey to malign the character of William Pinkney by putting forth Mr. Webster as the sounder of his own trumpet and the revealer of Pinkney's cowardice, with no witnesses present, and in a case not remembered, I neither can nor will.

In my early boyhood my father expressed some anxiety to my uncle, as Mr. Wirt, a truly great man and a magnificent lawyer, had just appeared on the arena in the Court of Appeals at Annapolis; and I shall never forget his sweet smile when he replied, "Ninian, the world is large enough for both of us." This was in conference with his brother, with whom, if with any one, he would have indulged freedom of criticism. But not a word of detraction escaped him. In no letter of his can you find a line that reflects on the fair fame of any of the great men with whom he contested the claim to supremacy. He had his foibles. But censoriousness and detraction were not among them. No one can regret more deeply than I do the necessity that is laid upon me of vindicating my uncle's memory from this ferocious assault. I rejoice, however, that I can discharge my duty without reflecting on Daniel Webster-whose wonderful talents I admire as much as any man living, and whose character for truth and honor I would still hold in deepest reverence or without any impeachment of Mr. Harvey save a grievous error of memory, and a not less grievous error of judgment.

* Vide National Intelligencer, March 2, 18:22.

down; that she tore herself away from him and ordered him out of the house; that he took hold of her again, and she again tore herself away from him, when after some conversation he left the house. The court instructed the jury that, while they were not to allow punitive damages, "the damages must be compensatory to the plaintiff for the injury she has received, not confined to bodily suffering or to actual pecuniary loss, but you should take into consideration every circumstance of the act which injuriously affected the plaintiff, not only in property, but in her person, in her peace of mind, reputation, and, in short, her individual happiness." The court held the charge erroneous, because it authorized the jury to give damages to the plaintiffs for injury to the reputation of the female plaintiff. Injury to reputation cannot enter into the estimate of damages in such a case.

Mental anguish of itself has never been treated as an independent ground of damages so as to enable a person to maintain an action for that injury alone, neither has insult nor contumely. Mental anguish of the most excruciating character may, and generally does, result from charging a person with degrading acts not amounting to a crime, as by charging a lady with being a prostitute, or a gentleman with being a scoundrel, a blackleg, a cheat, etc., yet, unless productive of special damages apart from the mental suffering occasioned thereby, no action will lie. Neither do we apprehend that an action could be maintained against a railway company because some passenger became frightened by some movement or motion of the train, although the fright induces serious consequences to the passenger. Such consequences are highly proper as elements of damage in connection with other bodily injuries, but standing alone they do not afford a sufficient ground of action.

Where the statute gives a remedy where none existed at common law, damages can only be given for the causes named in the law. Thus, where the statute provides that a wife may recover of a person who sells intoxicating liquors to her husband, damages for an injury to her person, property or means of support, it is held that mental pain, suffered by her in consequence of the intoxication of her husband, is not an element of damages to be considered. Meidel v. Anthis, 71 Ill. 241; and that she cannot recover exemplary damages unless some actual damage is shown. See, also, to the same effect, Oldfield v. N. Y. & H. R. R. Co., 14 N. Y. 310; Tilley v. H. R. R. R. Co., 29 id. 252; Lehman v. Brooklyn, 29 Barb. (N. Y.) 234; in all of which it was

held that in an action under the statute 1847 and 1849,

brought by a husband for the negligent killing of his wife, loss of society and mental anguish could not be considered. This doctrine, however, is opposed to that of Canning v. Williamstown, 1 Cush. (Mass.) 451. In that case an action was brought to recover for an injury sustained by reason of defects in a highway, under the Revised Statutes, chap. 25, sec. 22, which gives a right of action for an injury "to the person or property." The court held that while for an injury which produces mental suffering alone an action could not be maintained, yet, where an actual injury, however slight, is established, then mental pain, suffering or anguish become a part of the injury for which the town is liable, and we are inclined to regard this doctrine as accurate. See, also, Verrill v. Minot, ante; and, even under the ruling in the Illinois case, if an actual injury had been established, this element would have had its influence upon the amount of exemplary damages to be awarded.

Loss of time, loss of business, inability to attend to business or diminution of business capacity, etc., are proper elements of damage, and indeed furnish an independent and adequate ground of recovery. Wade v. Leroy, 20 How. (U.S.) 34; Peoria Bridge Asso. v. Loomis, 20 Ill. 235; Nones v. Northouse, 46 Vt. 587. In

Ballun v. Farnum, 11 Allen (Mass.), 73, the court held that, in an action for a personal injury, a plaintiff can recover compensation for the loss of physical and mental capacity so far as occasioned solely by the injury, and that evidence of the plaintiff's occupation and capacity previous to the injury, and his subsequent capacity, is admissible for the purpose of enabling the court or the jury to ascertain the extent of the injury. In Wade v. Long, ante, it was held that the plaintiff might show that previous thereto he had been engaged in a particular business, for the prosecution of which the injury wholly incapacitated him, even though there is no such allegation in the complaint. See, also, N. J. Ex. Co. v. Nichols, 33 N. J. Law, 434; Howes v. Ashfield, 99 Mass. 540. The loss of business sustained by the party injured is a proper ground of recovery. So held in a case where an expressman was injured by the negligence of a railroad company. Albert v. Bleecker St., etc., R. R. Co., 2 Daly (N. Y. C. P.), 389; Western, etc., R. R. Co. v. Drysdale, 51 Ga. 644; Chicago v. Langlass, 66 Ill. 361. But the defendant may show, if he can, that the business was not profitable, or that it is unlawful, or any circumstances connected with it that tend to establish its value. In a case where a physician brought an action for personal injury and sought to recover for his loss of business, the court permitted the defendant to show that his practice was unlawful, and that for the purpose of establishing the fact his professional reputation in this respect might be shown. Jacques v. Bridgeport Horse R. R. Co., 41 Conn. 61. The disabling effects of an injury, whether past or prospective, should be considered, as there can be but one recovery; Walker v. Erie R. R. Co., 63 Barb. (N. Y.) 260; Barbour Co. v. Horn, 48 Ala. 567; Filer v. N. Y. C. R. R. Co., 49 N. Y. 42; Curtiss v. Rochester, etc., R. R. Co., 20 Barb. (N. Y.) 282; therefore the reasonable expectations of the plaintiff if the injury had not been inflicted are proper to be considered. Baltimore, etc., R. R. Co. v. Shipley, 31 Md. 368. The rule is well expressed in McLaughlin v. Corry, 77 Penn. St. 109, in which the court say, "the measure of damages is the direct expenses, the inconvenience, pain and pecuniary loss sustained, and likely to be sustained during life, and the plaintiff's actual loss of earning power from the accident." Present loss and future incapacity are to be considered. Klein v. Jewett, 26 N. J. Eq. 474.

A DEAF MUTE'S WILL.

OME fifteen years ago in England, John Geale, of Yateley, yeoman, deaf, dumb, and unable to read or write, died leaving a will which he had executed by putting his mark to it. Probate of this will was refused by Sir J. P. Wilde, Judge of the Court of Probate, on the ground that there was no sufficient evidence of the testator's understanding and assenting to its provisions. At a later date, Dr. Spinks renewed the motion upon the following joint affidavit of the widow and the attesting witnesses: "The signs by which the deceased informed us that the will was the instrument which was to deal with his property upon his death, and that his wife was to have all his property after his death in case she survived him, were in substance, so far as we are able to describe the same in writing, as follows, viz. :-The said John Geale first pointed to the said will itself, then he pointed to himself, and then he laid the side of his head upon the palm of his right hand with his eyes closed, and then lowered his right hand toward the ground, the palm of the same hand being upward. These latter signs were the usual signs by which he referred to his own death or the decease of some one else. He then touched his trowsers pocket (which was the usual sign by which he referred to his money), then he looked all around, and simultaneously raised his arms with a

sweeping motion all around (which were the usual signs by which he referred to all his property or all things). He then pointed to his wife, and afterward touched the ring finger of his left hand, and then placed his right hand across his left arm at the elbow, which latter signs were the usual signs by which he referred to his wife. The sigus by which the said testator informed us that the property was to go to his wife's daughter, in case his wife died in his life-time, were as follows: He first referred to his property as before, he then touched himself and pointed to the ring-finger of his left hand, and crossed his arms as before (which indicated his wife); he then laid the side of his head on the palm of his right hand (with his eyes closed), which indicated his wife's death; he then again, after pointing to his wife's daughter, who was present when the said will was executed, pointed to his ring-finger of his left hand, and then placed his right hand across his left arm at the elbow as before. He then put his forefinger to his mouth and immediately touched his breast, and moved his arms in such a manner as to indicate a child, which were his usual signs for indicating his wife's daughter. He always indicated a female by crossing his arm, and a male person by crossing his wrist. The signs by which the said testator informed us that his property was to go to William Wigg (his wife's daughter's husband), in case his wife's daughter died in his life-time, were as follows: He repeated the signs indicating his property and his wife's daughter, then laid the side of his head on the palm of his right hand with his eyes closed, and lowered his hand toward the ground as before (which meant her death); he then again repeated the signs indicating his wife's daughter, and crossed his left arm at the wrist with his right hand, which meant her husband, the said William Wigg. He also communicated to us by signs that the said William Wigg resided in London. The said William Wigg is in the employ of and superintends the goods department of the Northwestern Railway Company at Camden Town. sigus by which the said testator informed us that his property was to go to the children of his wife's daughter and son-in-law, in case they both died in his lifetime, were as follows, namely: He repeated the signs indicating the said William Wigg and his wife, and their death before him, and then placed his right hand open a short distance from the ground, and raised it by degrees and as if by steps, which were his usual signs for pointing out their children, and then swept his hand round with a sweeping motion, which indicated that they were all to be brought in. The said testator always took great notice of the said children, and was very fond of them. After the said testator had in manner aforesaid expressed to us what he intended to do by his said will, the said R. T. Dunning, by means of the before-mentioned signs, and by other motions and signs by which we were accustomed to converse with him, informed the said testator what were the contents and effect of the said will." Sir J. P. Wilde granted the motion.

The

CONSTITUTIONAL LAW-LIMITATIONS ON SALES OF RAILROAD TICKETS.

SUPREME COURT OF INDIANA.

FRY V. THE STATE.

The legislative authority of a State is the right to exercise supreme and sovereign power, subject to no restrictions except those of the State and Federal Constitutions, and the laws and treaties made thereunder.

A statute cannot be unconstitutional as impairing the obligation of any contract made after its passage.

A statute prohibiting the sale of railroad tickets by brokers or by any person, except by the regular agents of the

railroads, or by a bona fide purchaser of an unused ticket or portion of a ticket, is not unconstitutional as granting an exclusive privilege or immunity. Such a statute is within the legitimate sphere of police regulations. Nor is such a statute a regulation of commerce within the meaning of the Federal Constitution.

THIS

HIS was an indictment against the appellant, charging, in substance, that the appellant on the 9th day of January, 1879, at and in the county of Marion, did then and there unlawfully barter and sell, for a valuable consideration, to wit, the sum of ten dollars, to some person whose name is to the grand jurors unknown, a railroad ticket, the description and date of which said ticket is lost and cannot be found, entitling and evidencing the right of the holder thereof, to wit, the person whose name is to the grand jurors unknown, to travel and be transported over some railroad, the name and style of which said railroad is to the grand jurors unknown, running from the city of Indianapolis, in the county of Marion and State of Indiana, to the city of St. Louis, in the State of Missouri. The grand jurors aforesaid, upon their oath aforesaid, do further present that, upon the said 9th day of January, A. D. 1879, at the time and place the said Fry sold said ticket, as aforesaid, to said person whose name is to the grand jurors unknown, as aforesaid, to wit, at the county of Marion and State aforesaid, said Fry was not then and there the agent of the railroad, whose name and style are to the grand jurors unknown, as aforesaid, and said Fry was not then and there authorized to sell tickets or other certificates, evidencing the right of the holder thereof to travel and be transported upon said railroad, and he did not then and there have a certificate provided him by said railroad, setting forth his authority as agent of said railroad, signed by the managing officer of such railroad, and duly attested by its corporate seal; that said George W. Fry had not purchased the said ticket, evidencing the right of the holder thereof to travel and be transported by said railroad from the city of Indianapolis in the county of Marion, and State of Indiana, to the city of St. Louis, in the State of Missouri, from an agent of said railroad authorized to sell tickets or other certificates, evidencing the right of the holder thereof to travel and be transported by said railroad, and provided with a certificate setting forth his authority as such agent to make such sales, signed by the managing officer of said railroad, and duly attested by the corporate seal of said railroad, with a bona fide intention of travelling on the same. Wherefore, the grand jurors aforesaid, upon their oath aforesaid, do further present and charge, that said sale of said ticket by said George W. Fry to said person, whose name is to the grand jurors aforesaid unknown, as aforesaid, and in manner and form aforesaid, was and is contrary to the form of the statute made and provided, and against the peace and dignity of the State of Indiana." The appellant moved the court to quash said indictment, which motion was overruled and to this ruling he excepted.

The appellant's plea was not guilty.

The issues joined were tried by the court without a jury, upon an agreed statement of facts; and a finding was made by the court that the appellant was guilty, as charged in the indictment. The appellant's motion for a new trial was overruled by the court, and to this decision he excepted; and judgment was rendered against him by the court on its finding, from which judgment this appeal was now prosecuted.

The principal parts of the statute were as follows: SEC. 1. That it shall not be lawful from and after the taking effect of this act, for any officer or agent of any railroad company, steamboat or other public conveyance of passengers for hire or reward, or for the operator or operators, manager or managers (or his or their agent or agents), of any such railroad, steamboat or