sons alone interested in it, seems appropriately to belong to the national government. It concerns rights held under the laws to be enforced within the jurisdiction of states, other than those in which the citizens generally interested in them reside, and on a subject too known deeply to affect the public mind, and in respect to which distinct and adverse interests and views had already appeared in the union. It was therefore fit and proper that the whole matter should be placed under the control of congress, where the rights and interests of the different sections of the country, liable to be influenced by local and peculiar causes, would be regulated with an independent and impartial regard to all. It was a subject affecting citizens at the time, more or less, in almost every part of the union-a uniform rule respecting which was desirable, and could only be attained by placing it under the action of the national government. We may add also, that as the power of legislation belonging to the states is in no instance derived from the constitution of the United States, but flows from their own sovereign authority, any law they might pass on the subject would not be binding beyond their jurisdiction, and any precept or authority given in pursuance of it would convey none to the owner to remove the fugitive beyond it; the authority of each state, through which it was necessary to pass, would become indispensable.

"Great consideration, also, we think due to the law of 1793, as a contemporaneous exposition of the constitutional provision. It was passed about four years after the adoption of the constitution by a congress which included some of the most distinguished members of the convention. At the distance of forty years, we should hesitate long before we come to the conclusion, that an error was committed in the construction of this instrument under such circumstances, and which has been ever since acquiesced in, so far as we know, without question. Our own statute books also shew,

that down to 1830, no attempt had been made here by state legislation to interfere with this regulation of congress.

"Shall the certificate of the magistrate under the law of 1793, which declares it 'shall be a sufficient warrant for removing the fugitive from labor to the state or territory from which he fled,' be permitted to perform its office? or shall the writ under the state law prevent it? They are antagonist and irreconcilable powers, and the case forcibly exemplifies the impracticability and danger of the exercise of both upon the same subject, and the wisdom of the rule that forbids it. It has been said that under the law of 1793, a free citizen might be seized and carried away into captivity, and hence the necessity of the law of the state giving to him a trial by jury upon the question of freedom.

"The proceedings are before a magistrate of our own state, presumed to possess a common sympathy with his fellow-citizens, and where, upon the supposition that a free man is arrested, he may readily procure the evidence of his freedom. If the magistrate should finally err in granting the certificate, the party can still resort to the protection of the national judiciary. The proceedings by which his rights have been invaded being under a law of congress, the remedy for error or injustice belongs peculiarly to that high tribunal. Under their ample shield, the apprehension of captivity and oppression cannot be alarming.

"It is sufficient for this case that the plaintiff was brought before an officer authorized by the law of congress, to hear and determine the question and grant the certificate; that such hearing did take place, and that the certificate was granted.

"According to the view of the case we have taken, the question of slave or not according to the laws of the state from whence the fugitive fled, belonged to the magistrate under the law of congress to decide, and his decision is

conclusive in the matter so far as the state courts are concerned."

These extracts are from the opinion of a gentleman who has since been appointed to the high and responsible office of chief justice of the state. The opinion from which the extracts are made, is in all its parts, creditable to the judge who gave it, for the force of its views and the ability with which they are urged, but it is still more creditable on other grounds. The judge has shewn throughout, that the local prejudices and prepossessions of those amongst whom his lot has placed him, are not sufficient to swerve him from a right decision, but that his duty to uphold the constitution and laws of the union will be honestly and independently performed.

The length of this article admonishes us that it is proper now to pause. We do so, however, with the expectation of being able to resume the subject in a succeeding number.

C. R.

1 Jack v. Martin, 12 Wend. 311.

ART. III.-THE LEGAL RULES GOVERNING THE ENJOYMENT AND USE OF LIGHT.

[A Lecture delivered before the Law Association of the city of New York, February, 1839. By WILLIAM CURTIS NOYES.]

THE subject which I have chosen for your consideration a short time this evening was forced upon my attention originally by professional duties, and has been recalled to my recollection by a recent event in Wall street, which has caused some excitement and elicited no little remark. Those of my audience who have had occasion to pass through that great resort of money-changers, may have remaked the erection of a wall apparently useless except to "shut out the light" from the upper story of the new

banking house, recently put up by the Bank of the United States. The right to build this wall has been loudly questioned, while on the other hand the right of building a window so as to overlook the grounds of another, has as loudly been denied. A multitude of opinions have been expressed in regard to these matters, not only among commercial men, but among those of our own profession. These opinions have been vague and discordant and nearly as various as the individuals expressing them. It is believed an acceptable service may be rendered to those who are pursuing the law as the business of their lives, by an examination of the legal rules governing the enjoyment and use of light, and in endeavoring to settle the true principles by which the rights of individuals to this common and indispensable blessing are regulated and protected.

It has happened in this instance, as in too many others, that much fault has been imputed to the law for the alleged uncertainty with which this branch of it is said to be surrounded. The stale and oft-repeated witticisms, with which our profession is so frequently attacked, have again been gone over, much to the amusement of those who have indulged in them. Upon an attentive and lawyer-like examination of this interesting branch of jurisprudence, however, it will be found that the rules which govern it are now very well settled, and have their foundation in those immutable principles of right which commend themselves to the regard of all good men, and without which, no rule of law can long sustain the scrutiny of forensic discussion.

A degree of interest has at times been imparted to this subject by the air of antiquity, not to say mystery, which has sometimes been thrown about it. Many of us can recollect the sensations produced by the title "ancient lights," which met us in the abridgments and indexes to the legal works which we have found occasion to consult, and while all supposed it a branch of the title of the law

regarding real estate which once had an existence, few, it is believed, supposed it had been transplanted into our legal soil; much less that it would ever be cultivated and an attempt made to cause it to increase and flourish. Such an attempt, however, has recently been made, and the question has received the deliberate attention and decision of the supreme court, and the law, so far as the same can be adjudicated by that tribunal, authoritatively declared. I shall find it necessary in the course of this lecture, to give a history of the legal questions involved in that decision, and to state what effect it has in its bearing upon the points under consideration. My plan embraces,

1. A brief consideration of the origin and nature of the object to which it is necessary legal protection should be extended.

2. The legal rights of parties to the enjoyment and use of it; and

3. The remedies for an infringement of those rights.

1. A correct understanding of the origin and nature of the object to be enjoyed and in which a property is claimed is always essential to a just interpretation of the right to it, and of the remedy to be pursued for a violation of that right. In regard to light it is obvious that there is no such thing as a separate property in it; it cannot be claimed in a legal sense, independent of something corporeal, any more than the atmosphere or water. As ejectment will not lie for the latter, so it will not for the former, and for the same reason, yet they both may be recovered in that action as a necessary incident to land. And although I have not found it classed among incorporeal hereditaments by name, except in a single instance by Mr. Chitty, in his General Practice, vol. i. 206, yet it is clearly within the definition given by lord Coke-a right issuing out of a thing corporate, whether real or personal, or concerning, or annexed