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case required by public necessity. 8

Much discussion also has arisen as to whether the compensa-
tion in these cases is to be made concurrently with taking property,
or what results are to follow where a concurrent remedy is not pro-
tided in the act authorizing property to be taken. 4

In regard to the constitutional provision securing trial by jury,
it has been decided, in New York, that a legislative enactment for
the ascertainment of damages by a committee is not unconstitutional. 9
So in regard to the final decision of the County Court in Vermont. 6

There have been very diverse views, as above stated, relative to
the time when compensation must be made. In New York, it is
well settled, that where an act authorizing the taking of private
property for public uses provides for just compensation to the
owner, it is sufficient that the act makes provision for future com-
pensation. 7

The assessment and payment of damages need not precede the
entry and occupation. The rules, however, are different in different
States. 8 Chancellor Kent holds, however, that compensation, or

1 28 Pick. 891. * 7 New Hamp. 36, 70 ; 8 lb. 898 ; 10 lb. 188 ; 11 lb. 19.

9 1 Bald. C. C. 206; 11 Peters, 688) 2 John. Ch. 162; 2 Kent, 199.

4 Sedg. M. Dam. 666. • 8 Paige, 46.

• 19 Vt 479 ; 8 Humph. 476. * 7 Barb. S. C. 416 ; 1 Penn. 809.

•*W. &S. 320; 8 How. MiM. 62.

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14 THE RIGHT OF EMINENT DOMAIN.

offer of it, mu9t precede or be concurrent with the seizure and entry
upon private property under the authority of the State. The set-
tled and fundamental interpretation of the constitutions of some of
the States in relation to taking property upon compensation is, that
government has no right to take private property without just com-
pensation ; and it seems to be implied that the indemnity should,
in cases which will admit of it, be previously and equitably ascer-
tained, and ready for reception concurrently in point of time with
the actual exercise of the right of eminent domain. 1

In England, by the Land Glauses Consolidation Act, 3 compen-
sation is given for any lands, or " any interest therein, which shall
have been taken for, or injuriously affected by the execution of the
work ;" and under this statute, damage done by dirt and dust, and
the obstruction of customers, is a subject of remuneration. 3 Under
this statute, also, the damages must be paid before entry. 4 Where
a dock company authorized to take lands, were to make compen-
sation for the damages occasioned to any such land by the execu-
tion of the works, it was held that this language would induce com-
pensation to a land-owner parting with his premises, for loss he
would sustain by having to give up his business as a brewer, until
he could obtain other suitable premises for carrying it on. 6

In deficiency of any adjudication, the point as to how far persons
are liable as trespassers who act under a statute authorizing the
seizure of property to the public use, but which does not provide
compensation, Chancellor Kent thinks the more reasonable and
practicable construction to be that the statute would be prima facie
good and binding, and sufficient to justify acts done under it, until
a party was restrained by judicial process. 6

The means by which the compensation for property taken is to
be determined are, in England, either by a writ of ad quod damnum,
or by commissioners appointed by the court for that purpose. The
first is, perhaps, peculiar to grants from the crown, though such
things as parliamentary writs of ad quod damnum are mentioned

1 2 Kent, 339, n. ; Code Napoleon, Art 546. * 8 Vic. C. 18.

• 15 Jut. 261. 4 1 Excheq. 723.

• 9 Q. B. 443. § 2 Kent, 339, n.



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THE RIGHT OP EMINENT DOMAIN. 15

in some of the books. 1 It is most usual, however, both in England
and in this country, to appoint commissioners whose duty it is to
determine the injury and assess the damages. Here, the State
is bound to provide some tribunal for the assessment of com-
pensation or indemnity, before which both parties may meet and dis-
cuss their claims on equal terms. 2 In some of the States the writ
of ad quod damnum has been used, but it is more usual, as in
England, to appoint special commissioners, 3 whose duties are per-
formed when they have examined the quality and value of the pro-
perty taken, and filed their report. 4

Having, at as much length as our limits will permit, stated the
leading principles of law relative to compensation, we will now
briefly consider that class of cases in which private property may be
injured by, or taken for the use of the public, in a manner for which
there is not, unless the common law has been amended by statute,
any compensation allowed. They arise out of the urgent necessity
of the occasion, and are unavoidable in their nature, and have
obtained on the principle that it is better to suffer a private mis-
chief than a public inconvenience ; and this is the law of urgent
necessity.

Of this principle there are many striking illustrations. If a road
be oat of repair, a passenger may lawfully go through a private
enclosure. 5 So, if a man is assaulted, he may fly through another's
close. 6 In time of war bulwarks may be built on private ground. 7
Thus, also, every man may of common right justify the going of
his servants or horses on the banks of navigable rivers for towing
barges, &c, to whomsoever the right of soil belongs. 8 The pursuit
of foxes through another's ground is allowed, because the destruc-
tion of such animals is for the public good. 9 And as the safety of

1 1 Burrows, 464.

• 2 John. Ch. 162; 6 Miller, 416; 1 Bald. 222.

• 8 Dana, 298 ; 8 Paige, 76 ; 8 Wend. 102 ; 2 Jour. P. C. 521 ; 8 Hump. 476.
4 1 Penn. 8. R. 182. 6 2 Black. Com. 36.

• 5 Bac Abr. 173.

7 Dyer, 8; Brook, Trap. 213; 5 Bac. Abr. 175.

• 1 Ld. Raymond, 726. • 2 Buls. 62 ; Cro. 1, 321.



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16 THE RIGHT OP EMINENT DOMAIN.

the people is a law above all others, it is lawful to part affrayers in
the house of another man. 1 Houses may be rased to prevent the
spreading of a conflagration, and many other instances might be
cited illustrative of the law of necessity.*

In the civil law the reason assigned why no compensation was
allowed in cases of destruction by public enemies was, that every
man might be made more diligently to guard his own.*

But, although by the common law there accrues no right of action
to the party whose property is injured in the preservation of life or
more valuable property, or in cases of injury to property from
unavoidable necessity, yet in some of the States, by statute, as
before suggested, the loss thus sustained for the good of the com-
munity lis assessed upon those who have been most immediately
benefited by the destruction. Thus, in cases of houses or buildings
necessarily torn down, or otherwise destroyed, to prevent the spread
of conflagration, it is allowed to assess the loss upon the city ; 4 but
this does not extend to the case of property destroyed which would
have been consumed had it not been so destroyed.*

There are also injuries so remote from the act committed, that
the law will not allow actual compensation, presuming the injured
party is compensated by sharing in the advantages arising from the
original act,* such as the police regulation of cities for the safety
or health of its citiiens : the principle being that all property is
acquired and held under the tacit consideration that it shall not be
eo used as to iiyure the equal rights of others, or destroy or greatly
impair the public rights and interests of the community ; or, as the
maxim expresses it, tic utere tuo tit aUenum non ledaeJ

So far, we have discussed the nature of the interest existing in
the State, in virtue of the right of eminent domain ; considered to

> 20 Vin. Abr. f. 407* ■ Puff. b. 2, ch. 6, { 85 1 Dall. 862.

•Grot. B. 8, ch. 20, { 8; SOVtn. Abr. f. 20.

* 25 Wend. 174$ 18 Wend. 126.

* 2 Denio, 478 ; 8 Met. 462 ; 17 Wend. 295.

« 18 Barb. S. C. 86 ; 4 T. R. 494 ; 2 T. R. 868 ; 8 Dana, 801,
» Puff. b. 8> ch. 5> { 3 \ Willed 888 >• Vattel, b. 1, on 20, { 246 5 7 Cow. 585 ; 2
Ee&t, 839> n.



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THE BIGHT OF EMINENT DOMAIN. 17

Vhom it belongs ; where it rests ; and the manner of its exertion ;
observing the condition of compensation which has last engaged our
attention.

We are now to consider the second indispensable condition, upon
which only, can private right be made subservient to the interest of
the public, and property be seized to its use ; and this, in the words
of omr definition of eminent domain, is

" IN CASE OF NECESSITY AND FOE THE PUBLIC SAFETY/'

The sense in which Vattel here uses the word " necessity," we
have supposed to correspond to our idea of the ordinary require-
ments of a State, in the promotion of trade, commerce and improve-
ments of various kinds, facilitating intercourse among its own
citiiens, and those of other nations, rather than those extraordinary
occasions arising out of an overwhelming necessity, where the safety
of an individual, a community, or a nation demand the sacrifice of
private property.

We will consider, then, first, that class of cases which may be
termed of ordinary necessity.

The necessities of the State as used in this sense, are of frequent
occurrence, particularly in well-regulated and enterprising commu-
nities, where trade and commerce are in the most flourishing condi-
tion; railroads, canals and highways of every description, are
demanded to facilitate internal communication, private lands may
be desirable for the health and recreation of the inhabitants of
cities ; streets may be found too narrow and confined for public
convenience; in a thousand ways can the public be benefited by
the assumption of private property, and in such cases it is in con-
formity with the most rational principles of natural justice that the
interest of the individual should yield to the advantage of the
many.

As the right rests with the sovereign, so must the sovereign wis-
dom be the only criterion by which the wants of the public can be
Measured : and the right is co-extensive with the public wants and

2



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18 THE RIGHT OF EMINENT DOMAIN.

has no other limit ;* but as necessity is the essence of the claim upon
which that right is to be asserted, if the delegated agents of the
sovereign, be they legislative bodies or third persons, to whom such
bodies have entrusted a special discretion, should in any manner
interfere with the security of private property, under a pretext of
public use or service, it would be an outrage and violation of pri-
vate right which the courts of justice would not tolerate. 2 Neither
upon full compensation does the right of eminent domain imply an
authority to take the property of one citizen and transfer it to
another, for the public interest would in no way be benefited or
promoted by such transfer. 3 If, however, the public interest can in
any manner be encouraged or advanced, it must rest in the wisdom
of the legislature to determine whether the proposed benefit to the
public is of sufficient importance to warrant an equitable interfer-
ence with the private rights of the individual. 4 But it is said that
it is not the lowest degree of public necessity which will justify the
exercise of this right. As to precisely what the public welfare, re-
quires, it is often a matter of doubt and controversy among those
equally wise in questions of State ; but the question once settled,
we know of no limit to the right of eminent domain.

In practice, these matters should always be considered with re-
ference to the wants of the public as being of greater or less im-
portance, according to the nature of the property to be taken, as
being of greater or less value.

The extraordinary necessities of a State, are those to which we
have understood Vattel to refer, when he speaks of " public safety,"
and we shall be doing little more than repeating what we have
before said when discussing the subject of compensation.

The necessities for the preservation of its very existence, which
a State may be often placed under, give it naturally the very
strongest claim to whatever may in the remotest manner be of ser-
vice to it ; of this class is the right to enter upon the lands of the
citizen for the purpose of erecting national defences, the seizing on
property, money, or material of whatever kind which may be useful

17W.L J. 268. * 2 Sandf. Sup. C. 98.

• 3 Paige, 78. 4 2 Kent, 889; Puff. b. 8, ch. 6.



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THE RIGHT OF EMINENT DOMAIN. 19

in withstanding or expelling an enemy, the conscription of soldiers
or the impressment of sailors. These cases of extreme necessity are,
in their imperative nature, similar to that class in which only an
individual may he the party to whom accrues the paramount right
of unavoidable necessity ; indeed, the right is the same whether it
be employed for the benefit of an individual or a nation : inexorable
necessity is its origin — its measure and limit — and this right must
be equal to the exigencies of each particular case.

Having thus far, ia the words of our definition of the right of
eminent domain, found it to be "A right which belongs to the
society or the sovereign, of disposing, in case qf necessity and for
the public safety" — continuing the words of that definition, our
author tells us that it embraces within its comprehensive claims,

" ALL THE WEALTH CONTAINED IN THE STATE,"

It is unnecessary for us to say that this part of our definition needs
no comment that it has not already received in the preceding pages ;
the difficulty in a practical application of the principles of eminent
domain, lying, not in determining what wealth or property is sub-
jected or exempted from the paramount claim of the State, but in
a proper compliance with the legal restrictions and protections under
which it may be appropriated to public use. 1

In taking leave of our subject, the investigation of which has
given us a pleasure, while we hope.it has not been without a mea-
sure of instruction, we cannot close without expressing our ad-
miration for the singular aptness of its rules, for establishing the
welfare of society, and promoting the happiness of the subject ; —
and how, in oar own country, the development of its principles,
directed by institutions novel in the history of nations, has only
tended to confirm the wisdom in which they were conceived, and '
the caution with which they have been expounded. If the harmo-

< 7 West I* J, 200; 9 Barb. Sup. a 535; 3D*U. 245.

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29 EVIDENCE EST PALMERS CASE.

nious movement of the British Constitution bas justly elicited the
admiration of the profoundest minds, at hone and abroad r bow
muck more should we, mature in their experience, devoutly desire
the perpetuation of our own.



THE EVIDENCE m PALMER'S CASK*

1. The' Queen v*. William. Palmer. Oficial report ef the mkwrtes of eridence on tfte
trial at tae Ceatral Criminal Coart, May 14 to May 26, 1856w Oeerge Hebert,
^Caeapeiae, Leaden*

2, Tbe «♦ Times" report of the trial of Wifian* Pafimer for the murder of Jean Par-
gone Cooky at Rugely, Ward & Look, 15* Fleet etreeV 1856-

The trial of William Palmer, indicted for tbe wittfal mnvder of
John Parsons Cook, demands some notice in our pages, for other
reason* than the enormity of tbe offence perpetrated,, or tbe extra-
ordinary interest whicb it has produced throughout every grade of
society.

It is difficult accurately to define what should make one trial more
than another among the caused cilebres. Sometimes the high posi-
tion or peculiar relationship of tbe parties concerned, — sometimes*
tbe barbarous cruelty employed, or tbe remarkable agents engaged
to effect crime, or tbe marvelous mode in whicb detection has en-
sued, may give an unusual character to a prosecution } at others a-
romantic tone and conflicting doubt* as to the verdict have left the
impress of a real or false notoriety upon tbe proceedings in the
Criminal Court. In later times, the trials of Thelwall, Rush, Green-
acre, and Courvoieier, in England, of Burke in Scotland, of Kir-
wan in Ireland, of Madame Laffarge in France, of Webster in
America, are all fresh in the memory, from some of tbe causes we
hare referred to ; and tbe case of William Palmer, investigated at
tbe Central Criminal Court from May 14th to May 26th, in the

1 From the Londett Law Mag. p. 882, Aug. Re>. 1856,



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EVIDENCE IS PALMEBTS CASE. 21

present yemc, will also henoeforti& take its place along with them.
But the trial of Falser has ather and considerable value to us and
our legal readers besides that of its feeing either interesting or re-
markable; and we draw attention to it here ehiefy because it raises
important questions eomneeted with criminal jurisprudence.

Although our Headers are probably not unacquainted with the
leading facts of the ease through tke daily press, we will neverthe-
iess briefly recapitulate them, before we draw attention to the points
to which we propose more especially to confine our observations.
This is rendered the more requisite from the lengthened duration of
the trial, aad the amount <ef evidence given thereon* The trial
lasted for no less than twelve days, during which eighty-two wit-
nesses were examined, forty of whom were of the medical profession
or connected with its practice.

The case for the proseeution, then, which was founded on circum-
stantial evidence, aad which we may divide into thegeneral and medi-
cal, was this ; — both Palmer the poisoner, and Cook the deceased,
were on iatimate terms, following the same pursuit, commonly called
the " Turfi" which, whatever may once have been its character, ap-
pears, at the present day, to embrace an amount of low blackguard-
ism aad systematic swindling out of all proportion to the better
qualities of sportsmanship which were wont to be attributed to it.
In November, 1855, Palmer was in desperate difficulties ; his liabili-
ties appear to have amounted to about 20,000?. Writs had already
been issued out against him, as well as against his mother, on ac-
count of bills of exchange. On some of the bills in question (pur-
porting to represent a sum of 11,500/.) the name of Mrs* Palmer
had been unlawfully placed, aad it hardly admits of doubt that the
forgery of her name had been committed by the prisoner himself.
Ruin and exposure were thus impending over him, and he was en-

ve off for a short time the demands of
Now, it happened that on the 13th
ry considerable sum of money — between
s and bets — on a race at Shrewsbury,
immediately after the races on that oc-
ank notes.



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22 EVIDENCE IN PALMER'S CASS.

And here commences the horrible detail of a deliberate system of
poisoning. Whilst in Palmer's company on the evening following
the race, Cook, immediately upon swallowing some brandy-and-
water, vomited violently, and declared that there was " something
in it," and that it burnt his throat dreadfully, and that "Palmer
had dosed him." He recovered from this attack of sickness, and
both men left Shrewsbury for Rugely, and remained there in the
society of each other daring the next three days, Cook, however,
still continuing to suffer from sickness, and Palmer for the most
part superintending the administration of his food ; but the evidence
showed, that whenever nutriment happened not to come through
Palmer's hands, vomiting did not supervene. Upon the post-mor-
tem examination, antimony was found, and the prosecution sug-
gested that the sickness resulted from its administration during the
period we are now alluding to. We now come to the Monday (19th
November) subsequent to the Shrewsbury races. Palmer left for
London on the morning of the day (having previously given Cook
some coffee, which made him sick, as before), and returned in the
evening. He had employed the day in "settling" Cook's sporting
debts in London, and appropriating them, as it appears, to his own
purposes. In the evening Palmer re-appears at Rugely, and, ac-
cording to the evidence of Charles Newton, obtained from the latter
person three grains of strychnia ; he is afterwards found in the bed-
room of Mr. Cook, who had been better during the day. Pills had
been prescribed for him by the medical attendants, to be taken in
the evening. 1 At midnight, he is seized with frightful convulsions ;
his screams are heard by the inmates of the hotel. Palmer comes
over from his house on the other side of the street to him, adminis-
ters some medicine, and he recovers from the attack. The next
morning Palmer purchases at another doctor's shop in Rugely six

1 1t wUl be observed that we do not follow the evidence of Mr. Jeremiah Smith,
the solicitor, in this case. The reasons will be found in the summing up of Lord
Campbell, who, amongst other things, said, of the respectable " professional man, 1
" Can you believe his evidence when he acknowledges himself to have been engaged
in such fraudulent transactions, and, being now examined upon oath, denies his own
attestation to that document t Of his credit you are the judges," && &e*



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EVIDENCE IN PALMER'S CASE. 23

grains of strychnia, two drams of prussic acid, and two drams of
Battley's solution of opium. In the evening of this day Palmer
administers two pills to Cook. Vomiting and convulsions ensue ;
and in the course of an hour or thereabouts Cook dies in frightful
agony. A post-mortem examination is held at the instance of his
father-in-law. The viscera are placed in jars, sent up to London ;
Palmer endeavors to bribe the post-boy to break them ; but they are
conveyed safely to London, submitted to the tests of Dr. Taylor and
Dr. Bees. These gentlemen find, as already stated, antimony, but
no strychnia. Palmer had been searching the dress and bed of the
deceased, and when the money, supposed to have been in Cook's
possession, and his betting-book, are sought for, they are not found,
and no traces of either, as far as is known, have ever been heard of.
We may pass over various other points of suspicion against the
prisoner ; the mysterious cutting of the bladder on the mouth of the
jars — the attempts to tamper with the postmaster, and his commu-
nication with the coroner, as well as various other circumstances
detailed on the trial.

We have merely offered an outline of the facts of the case, which,
as seen from what we have said, is one of circumstantial evidence.
The great difficulty of the prosecution lay in the proof of the corpus
delicti, or, in other words, in showing that the deceased was poi-
soned, as alleged in the indictment. As it has been said by a
learned writer on circumstantial evidence, 1 " In the proof of crimi-
nal homicide, the true cause of death must be clearly established ;
and the possibility of reasonably accounting for the event by self-
inflicted violence, accident, or natural cause be excluded ; and only
when it has been irrefragably proved that no other hypothesis will
explain all the conditions of the case, and account for all the facts,
can it be safely and justly concluded that it has been caused by in-
tentional injury ; but in accordance with the principles which govern
the proofs of every other element of the corpus delicti, it is not
necessary that the cause of death should be verified by direct and

1 Mr. Wills, See chap. Tii. of his treatise " On the Proofs of the Corpus Delicti
by Circumstantial Evidence.



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24 EVIDENCE IN PALMEBT3 CASE.

positive evidence ; it is sufficient if it be proved by circumstantial
evidence which produces a moral conviction in the minds of the jury
equivalent to that which is the result of positive and direct evi-
dence/'

That proof of the corpus delieti in cases of willful homicide may
be established as well upon the grounds of presumption as by direct
evidence, is clearly a legal necessity ; otherwise the secrecy which
attaches to assassination (rendering the crime all the more revolt-
ing) would afford certain protection to the worst offenders against
society ; and the skillful poisoner might, indeed, pursue his hideous
art with perfect impunity.

In a recent number of the Law Magazine 1 we discussed the sub-
ject of "Presumptions in Criminal Cases/' and we then took the
opportunity of referring to the judgments in Burdett's case (4 B. &



Online LibraryWilliam O'BryanThe American law register, Volume 5 → online text (page 3 of 76)