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of deciding all questions according tion. It has a tendency to limit to the impressions on their own the discretion of judges; and conminds, at the moment ; and then sequently, increases liberty. Where substitute their own private opin. there are no fixed established max. ions in the place of law ? Such ims of law, the citizens are in the judges cannot be said to declare the same situation as farmers, whose law; they make it. Like arbitra- lands are not divided by any mon tors, they make their award, and uments or known bounds. They deliver their own opinions.
will be very likely to go to law, and Some have imagined, that the very unlikely to obtain satisfactory records furnish all the necessary decisions. Maxims of law are like information on this subject. It landmarks. may be observed, in the first place, “Limes agro positus litem ut discerneret arvis. that our records are far from be, How far the work before us is caling as perfect as they ought to be. culated to answer these valuable The business is intrusted to clerks, ends, we shall hereafter have occa. often incapable, and too often re. sion to consider. miss in the performance of the du. With regard to what is the best ties of the office, But admitting method of reporting, we are sensis the records to be framed and kept ble that a difference of opinion prein the best possible manner, still, vails among those, most conver. from the nature of the thing, they sant with the subject. Some have furnish but little evidence of our been careful to state the facts at legal customs; because they rare great length, to insert a full copy ly contain a sufficient statement of of the pleadings, the arguments of the facts, on which the decision is the counsel, as diffusely as they grounded, and never the argu, were delivered at the bar, the cases ments and reasoning of the court. and authorities cited and relied on,
We have made these brief ob. and the opinions of the judges, at servations, as an introduction to the full length; while others have giv, consideration of the work before en a very abridged state of the case, us. We trust there are few of together with the mere point de. our readers, who are not equal, cided ; omitting not only the are ly with us impressed with the guments of the bar, but the most conviction that the design of this of the reasoning of the court. It work is highly important ; that it is obvious to remark, that each of is one, which, if well executed, these methods has its advantages promises more publick utility than and disadvantages. They are exany measure our government has tremes ; and in this, as in every adopted since the formation of the thing else, “ in medio tutissimus constitution. A correct history of ibis." Prolixity fatigues,while ex. what passes in courts of justice is treme brevity leads to obscurity. of incalculable advantage. With But there is a conciseness, which a single exception, it is the best of is no enemy to perspicuity, and a all books. Įt perpetuates the la. prolixity, which confounds, instead bours and sound maxims of wise of enlightening. Perhaps it is not and learned judges. It serves to in the power of a reporter to say make the path of duty plain before just enough for some readers, with, the people, by making the law a out saying too much for others. known rule of conduct; and for the But we are decidedly of opinion, kame reason, it diminishes litiga. that modern reports are, in genes ral, too prolix. Expunge from prepossessed us in his favour, and them every thing not material in led us to anticipate something the statement of facts; every thing good, appears to have been fully from the arguments, which does aware of the difficulties, with which not bear on the question ; and ev. he had to contend, and of the adery thing given for the reasons of vantages and disadvantages of the the decision which is wholly for different methods in use of report, eign and irrelevant, and many a ing cases. It seems to have been huge folio would dwindle into a du- his endeavour to avoid the extremes odecimo. The eight or ten volumes of prolixity and brevity. Where of Vesey jun. would be reduced to he deemed the points new and ab: two or three ; Dallas would be re, struse, he professes to be copious. duced one half ; Wallace* to a In cases of less importance, and few pages ; Cranch would make especially in matters of practice, No. 1, of Vol. I., and Root would he aims at conciseness. Not haventirely disappear. But our read. ing the materials for reports, with ers must not conclude from what which his office furnished him, We have said, that reports may not, submitted to our inspection, we are in our judgment, be too concise. unable to determine whether he We are not believers in the short has omitted any case which ought cuts to knowledge." In reports it to have been given to the publick. is indispensable, that all the mate. But we have no hesitation in saya rial facts be correctly stated, the ings that some of those selected pleadings, when the case turns up- might haye been spared, without on them, the judgment of the any injury to the work. For ex. court, and the outlines of the ample, what must foreigners think grounds or reasons of the decision. of the state of our jurisprudence, Nothing trilling or impertinent when it is thought necessary twice should be inserted, and nothing to state, as solemn decisions of our material omitted.
supreme court, that an administras Of the qualifications of a report, tor, and an individual in his own er, there can be but onę opinion. right, cannot join in prosecuting He must possess industry to col- an action ? [p. 104, 480.] That lect suitable materials, judgment an action for money had and receive to select and arrange them, and ed does not lie for a surety,who has great accuracy in every thing. In paid the debt of his principal ? [p, a word, that is the best book of re- 139.) Who ever supposed it did ? ports, which contains the greatest A reporter should always beår in number of cases upon important mind, that it is only cases of weight points, in which the reasons and and difficulty" that should be re, grounds of the decisions are so ported. clearly set down that they cannot Some of the cases are spun out easily be mistaken ; and he is the to a most unreasonable length, and test reporter, whose works ape contain matters which, for the hong proach the nearest to this standard. our of the state, we think, should
Mr. Williams, in a very modest never have appeared in print. If and well written preface, which individuals will use or rather abuse
the liberty of the press, in publish, • Reports of Cases adjudged in the
ing what disgraces them and us in I eruit court of the United States, for
the judgment of our neighbours és fhird circuit.
and of foreigners, it cannot be help,
ed; but Mr. W.is an officer of the with counsel, in so plain a case, to government, and, as such, bound at declare the laws. We hope all all times to consult its honour. A concerned will profit by this exreporter, like a witness, should re- ample. port: nothing but the truth ; but he We are also of opinion, that the is not bound to state all that passes arguments of some of the judges, in court. We shall not much re- in the case alluded to, Martin v. gret it, if foreigners should be dis- the Commonwealth) as well as in posed to question his correctness, many others, might have been conwhen he states, that the first law densed, with advantage to the pubofficer of the commonwealth lick, and without doing any injupersevered in an attempt to ry to the arguments themselves. file a plea in abatement Martin v. We are not agreeably impressed the Commonwealth in errour, p. with 6 wordy eloquence” from the 353] after several general impar- bench ; still less, with attempts at lances, and after a plea in bar had eloquence without success. As been pleaded at a former term. If the style of laws should be concise, there is any principle of law well plain, and simple, so decisions of established in our courts, it is, that courts, which declare the law, a plea in abatement cannot be re- should be neither diffuse, tumid, ceived in another term, after a nor rhetorical. The language of general imparlance. We are at a judges should correspond with the loss to understand what the attor dignity of the office, and with the ney-general means by saying," that majesty of the subject. Great orthe court of exchequer, to which pament is as ill-becoming in the an appeal from the admiralty lies, style of a “ reverend judge," as a has not judiciary power. No writ black gown, turned up with pink, oferrour lies to that court.”(p.373.] (the dress of the federal judges) is
Some of the cases in this vol- unbecoming his person. ume are so very particular in their We believe that there is a stylę facts and circumstances, that they and manner peculiarly fitted to the cannot operate as precedents on bench. An eloquent harangue at other occasions, "They should the bar or in the senate would be have been omitted. It seems we unseemly from the mouth of a ven, are indebted to the grand jury for erable judge. The sages of the the county of Plymouth for one law,who are" legibus patriæ optime needless report. (Commonwealth instituti,"who may justlyboast of the v.O'Hearsey, p. 137.] The attor- « viginti annorum lucubrationes," ney-general drew the indictment should not for a moment be sus, against his own opinion, out of re: pected of sacrificing precision to spect to the grand jury. Possibly the harmony of periods. Lord the reporter, following the attor. Mansfield was a scholar and an or: ney-general's example, inserted it ator ; but his eloquence at the bar, in his collection, against his better in the senatę, and on the bench, judgment. By this means, we were as much unlike each other, as poor reviewers have been obliged the eloquence, of which we come to peruse it much against ours. plain, is unlike either. We cannot but think that the poor After all, we are not enemies to culprit has conducted, in this busi- true eloquence. And when our ness, with the most propriety. He judges shall have taken as much confessed the facts, and left it to pains in forming opinions in the the court, without troubling them cases before them as Lord Manse held always did, and shall have delivered to the defendant, a spent as many years in the acqui- deputy sheriff in W. county, sition of polite and elegant litera- who, by virtue thereof, took ture as he did, we shall not object the cows mentioned in the declarato their being as eloquent upon the tion, and sold them to satisfy the bench as his lordship. It will no execution. For the defendant was doubt subject us to the “ suspicion cited Crawford v. Satchwell, 2 of dulness," yet we shall not scru- Stra. 1218. The court was clearple to declare, that in a judge we ly of opinion, that the defendant prefer labour to genius, and pains- was not a trespasser. He was jus: taking to ingenuity.
tified by his precept in doing what Among other instances of pro. he did. Smith should have aplixity that occur in these reports, peared and pleaded the wrong admay be mentioned, the case of Smith dition of place in abatement. By v. Bowker, (p. 76] which occu- not doing so he waved the mispies nearly six pages. By the take, and he now comes too late to way, the defendant is called Joseph avail himself of it. Judgment for and Jotham; which is the true name? the defendant."
We think something like the Simmons &c.v.W.C.Apthorp &c. following would have comprized (p.99] petition for a review, or new every thing material in the case. trial. The case is not long, but it If we are correct in this, it shews Inight have been shorter. It would how much might have been gained have been sufficient to state, as in by a judicious abridgment of many the margin, that it was determined of the cases in this volume.
by the court, that on such petitions “ This was trespass for taking the petitioner shall be confined, on the plaintiff's cows. A case was the hearing, to the allegations in stated for the opinion of the the petition. court, in substance, that the press The case of Hall v. Hall (p.101] ent plaintiff had before made a is too trifling to merit insertion. , promissory note to one Sweetser, The decision is also, to say the who purchased a writ of attach- least of it, questionable. It was ment thereon against the plain- probably made without any considtiff, calling him of Orange, in the eration. We think the oath of a county of H., instead of Athol, in witness to prove payment as“ high" the county of W., his true place of and better evidence, than the bare abode. Service was made by J.S., receipt of a collector of taxes. deputy sheriff of H. county, that Clap v. Joslynin review (p. 129]. he had attached a hat, the property The circumstances of this case of A. S. named in the writ, and were very particular, and such, it left him a summons for his ap- is to be hoped, as will never hapa pearance. This summons was left pen again. It was unnecessary to at the dwelling house of the plain- state them. All that seems use. tiff in Athol, in which town he has ful to mention is, that in this case always lived. There was no ap- the court settled it as a rule of pearance, and judgment was ren- practice, that in an action of redered, by default, at the first term, · view, granted by the court under and execution issued and directed the statute, the court may, on a rule to the sheriffs, &c. of W. and H. to shew cause, quash the writ for counties, describing the parties as want of notice to the adverse party, in the writ of attachment, and was of the application for a review; or,
the court may then hear the par- cases where the statements are ins ties on the merits of the petition complete. But we shall leave it for a new trial.
to the sagacity of our learned reaWalker &c. v. Maxwell, (p. ders to discover and point them 104.) In this case two new ques: out. On this subject we shall tions were decided. Ist, that the barely mention some slight inace allegation, by a defendant who be- curacies in the case of Harris va longs to ariother state in the union, Clap, &c. (p. 308]. that the debt for which he is now It would appear from many parts sued has been attached in his hands of the report that the judgment as garnishee by process of foreign was at law and not in equity. And attachment in his own state, at the yet the chief justice speaks (p. suit of a creditor there,...that all the 319, 320) of the surety coming proceedings in the foreign attach- into the court as a court of equity ment were pursuant to the statute for relief. in such state, is not sufficient. The T he four judges, who were of statute should have been set forth, opinion for the plaintiff, agree that that the court might see whether the interest on the award shall the proceedings were authorized commence at the expiration of by it or not. 2d, that amendment 130 days from the acceptance of niay be allowed, after argument on it in the common pleas, which demurrer. We have called these was Ist Tuesday January 1798 ; new points ; the second was not a and yet the interest appears to few question, being the same that have been cast from the 13th June was decided in Holbrook v. Pratt, 1798, the time of commencing the (p. 96) but the decision was new, suit on the bond. The judges do being directly contrary to the for- not seem to be agreed as to the mer one.
time, from which interest might be This case occupies twelveriges, computed on the penalty. Thachlittle less than a fortieth part er J. fixes on one hundred ard of the volume, and costs every twenty days after the judgment on reader 10 cents,...a great deal more the award, as the period. Sewall than it is wox h. It was not ne- J. (we think with more propriety) cessary, to state the pleadings ; fixes on the demand, that is, the that part printed in italics and the commencement of the suit in the substance of the rest would have case before the court. It would been sufficient. There is nothing in seem that the judgment was at law. these records of pleadings so excel The debt adjudged to the plaintiff lent as to merit insertion at length. was 85000 the penalty of the bond,
It is but justice to Mr. W. to and 81480,55 cents, as damages say, that his statements of facts for the detention of the debt ; and seem much more correct than yet the true measure of damages those drawn up by the counsel, seems to have been declared to be which are often stuffed with im- the penalty and interest on it from pertinent matter; and in some in the commencement of the suit. stances so erroneous, as to require What but equity prevented the correction by the reporter.. plaintiff from recovering full inter
Other examples might be give est, viz. $ 2025? The defendant en of statements and reports un- did not ask equity. We have not necessarily prolix. There are also looked into this point. Perhaps