husk, or shell; the sense or meaning is the kernel or soul of the law. It is the business of the courts to strip off the husk. He, therefore, who would understand the mean ing of the statutes, must carefully study the judicial constructions, which, from time to time, have been put upon them. But the maxims and rules of the common law greatly exceed those prescribed by statute, both in number and importance; and of these, judicial decisions furnish the only evidence. What is the common law of this state? A perusal of the records of the English courts of justice, books of reports, the treatises of the learned sages of the profession, preserved and handed down from the times of highest antiquity, will furnish the answer as it respects that part of our laws, which we have borrowed from the English; but how is the line to be drawn between what we have adopted from the English law, and what has been rejected as inapplicable? Our constitution furnishes us with a rule on the subject. Whatever has "been adopted, used, and approved in the prov, ince, colony, or state of Massachusetts Bay, and usually practised on in the courts of law," excepting such parts" as are repugnant to the rights and liberties contained in the constitution," is law here. But how shall we be enabled to apply this rule? where shall we look for the evidence of this adoption, usage, and approbation; the evidence of what has been the usual practice in our courts of law? We have no books of reports; no evidence of our judicial decisions; no treatises of learned sages of the profession.* History is of great • At Rome the opinions of the juris consulti, called the responsa prudentum, were of great weight; and a considerable part of the Roman law is founded upon them, There is some uncertainty and contradiction in judicial decisions, compiled even by eminent lawyers, judges, and reporters appointed by authority, and preserved in print. But will there not be a thousand times more uncertainty and contradiction; or rather, will there be any certainty, any uniformity, in decisions never committed to writ ing? What would be the condition of our statute law, if it rested sole, ly on the memory of the members of the legislature? And what should occasion a difference in favour of judicial decisions, which are the proper and only evidence of those laws, which are ratified by the tacit consent of the people, when they depend on the memory of lawyers, or even of the judges who pronounced them. It is not an easy task to become thoroughly ac, quainted with the principles of the English law. It is a task of much greater difficulty, to become master of the law of this common, wealth. Our statutes are probably worse penned than the British; and we have no chart to direct us in the search of our legal customs and usages. Our law does not deserve the name of science. Our judges cannot know, if they would, with any good degree of certainty, been decided. Is it then wonderthe points which have heretofore ful, that they should pursue the easier, but more dangerous course of deciding all questions according to the impressions on their own minds, at the moment; and then substitute their own private opinions in the place of law? Such judges cannot be said to declare the law; they make it. Like arbitrators, they make their award, and deliver their own opinions. Some have imagined, that the records furnish all the necessary information on this subject. It may be observed, in the first place, that our records are far from being as perfect as they ought to be. The business is intrusted to clerks, often incapable, and too often remiss in the performance of the duties of the office. But admitting the records to be framed and kept in the best possible manner, still, from the nature of the thing, they furnish but little evidence of our legal customs; because they rare ly contain a sufficient statement of the facts, on which the decision is grounded, and never the arguments and reasoning of the court. We have made these brief observations, as an introduction to the consideration of the work before us. We trust there are few of our readers, who are not equal, ly with us impressed with the conviction that the design of this work is highly important; that it is one, which, if well executed, promises more publick utility than any measure our government has adopted since the formation of the constitution. A correct history of what passes in courts of justice is of incalculable advantage. With a single exception, it is the best of all books. It perpetuates the la bours and sound maxims of wise and learned judges. It serves to make the path of duty plain before the people, by making the law a known rule of conduct; and for the same reason, it diminishes litiga tion. It has a tendency to limit the discretion of judges; and consequently, increases liberty. Where there are no fixed established maxims of law, the citizens are in the same situation as farmers, whose lands are not divided by any monuments or known bounds. They will be very likely to go to law, and very unlikely to obtain satisfactory decisions. Maxims of law are like landmarks. "Limes agro positus litem ut discerneret arvis." How far the work before us is calculated to answer these valuable ends, we shall hereafter have occasion to consider. With regard to what is the best method of reporting, we are sensible that a difference of opinion prevails among those, most conversant with the subject. Some have been careful to state the facts at great length, to insert a full copy of the pleadings, the arguments of the counsel, as diffusely as they were delivered at the bar, the cases and authorities cited and relied on, and the opinions of the judges, at full length; while others have giv en a very abridged state of the case, together with the mere point decided; omitting not only the ar guments of the bar, but the most of the reasoning of the court. It is obvious to remark, that each of these methods has its advantages and disadvantages. They are extremes; and in this, as in every thing else, "in medio tutissimus ibis." Prolixity fatigues,while extreme brevity leads to obscurity. But there is a conciseness, which is no enemy to perspicuity, and a prolixity, which confounds, instead of enlightening. Perhaps it is not in the power of a reporter to say just enough for some readers, with out saying too much for others. But we are decidedly of opinion, that modern reports are, in gene ral, too prolix. Expunge from them every thing not material in the statement of facts; every thing from the arguments, which does not bear on the question; and every thing given for the reasons of the decision which is wholly for eign and irrelevant, and many a huge folio would dwindle into a duodecimo. The eight or ten volumes of Vesey jun. would be reduced to two or three; Dallas would be reduced one half; Wallace to a few pages; Cranch would make No. 1, of Vol. I., and Root would entirely disappear. But our readers must not conclude from what we have said, that reports may not, in our judgment, be too concise. We are not believers in the "short cuts to knowledge." In reports it is indispensable, that all the mate. rial facts be correctly stated, the pleadings, when the case turns upon them, the judgment of the court, and the outlines of the grounds or reasons of the decision. Nothing trifling or impertinent should be inserted, and nothing material omitted. Of the qualifications of a report er, there can be but one opinion. He must possess industry to collect suitable materials, judgment to select and arrange them, and great accuracy in every thing. In a word, that is the best book of reports, which contains the greatest number of cases upon important points, in which the reasons and grounds of the decisions are so clearly set down that they cannot easily be mistaken; and he is the best reporter, whose works ap proach the nearest to this standard. Mr. Williams, in a very modest and well written preface, which prepossessed us in his favour, and led us to anticipate something good, appears to have been fully aware of the difficulties, with which he had to contend, and of the advantages and disadvantages of the different methods in use of report ing cases. It seems to have been his endeavour to avoid the extremes of prolixity and brevity. Where he deemed the points new and ab. struse, he professes to be copious. In cases of less importance, and especially in matters of practice, he aims at conciseness. Not having the materials for reports, with which his office furnished him, submitted to our inspection, we are unable to determine whether he has omitted any case which ought to have been given to the publick. But we have no hesitation in say. ing, that some of those selected might have been spared, without any injury to the work. For ex ample, what must foreigners think of the state of our jurisprudence, when it is thought necessary twice to state, as solemn decisions of our supreme court, that an administra, tor, and an individual in his own right, cannot join in prosecuting an action? [p. 104, 480.] That an action for money had and receiv ed does not lie for a surety, who has paid the debt of his principal? [p, 139.] Who ever supposed it did? A reporter should always bear in mind,that it is only cases of "weight and difficulty" that should be reported. Some of the cases are spun out to a most unreasonable length, and contain matters which, for the hon our of the state, we think, should never have appeared in print. If individuals will use or rather abuse the liberty of the press, in publishing what disgraces them and us in the judgment of our neighbours and of foreigners, it cannot be help ed; but Mr. W. is an officer of the government, and, as such, bound at all times to consult its honour. A reporter, like a witness, should report nothing but the truth; but he is not bound to state all that passes in court. We shall not much regret it, if foreigners should be disposed to question his correctness, when he states, that the first law officer of the commonwealth persevered in an attempt to file a plea in abatement [Martin v. the Commonwealth in errour, p. 353] after several general imparlances, and after a plea in bar had been pleaded at a former term. If there is any principle of law well established in our courts, it is, that a plea in abatement cannot be re ceived in another term, after a general imparlance, We are at a loss to understand what the attor ney-general means by saying, "that the court of exchequer, to which an appeal from the admiralty lies, has not judiciary power. No writ of errour lies to that court." [p.873.] Some of the cases in this volume are so very particular in their facts and circumstances, that they cannot operate as precedents on other occasions, They should have been omitted. It seems we are indebted to the grand jury for the county of Plymouth for one needless report. [Commonwealth v. O'Hearsey, p. 137.] The attor, ney-general drew the indictment against his own opinion, out of respect to the grand jury. Possibly the reporter, following the attorney-general's example, inserted it in his collection, against his better judgment. By this means, we poor reviewers have been obliged to peruse it much against ours. We cannot but think that the poor culprit has conducted, in this business, with the most propriety. He confessed the facts, and left it to the court, without troubling them with counsel, in so plain a case, to declare the laws. We hope all concerned will profit by this example. We are also of opinion, that the arguments of some of the judges, in the case alluded to, [Martin v. the Commonwealth] as well as in many others, might have been condensed, with advantage to the publick, and without doing any injury to the arguments themselves. We are not agreeably impressed with "wordy eloquence" from the bench; still less, with attempts at eloquence without success. As the style of laws should be concise, plain, and simple, so decisions of courts, which declare the law, should be neither diffuse, tumid, nor rhetorical. The language of judges should correspond with the dignity of the office, and with the majesty of the subject. Great ornament is as ill-becoming in the style of a "reverend judge," as a black gown, turned up with pink, (the dress of the federal judges) is unbecoming his person. We believe that there is a style and manner peculiarly fitted to the bench. An eloquent harangue at the bar or in the senate would be unseemly from the mouth of a venerable judge. The sages of the law,who are "legibus patriæ optime instituti,"who may justly boast of the "viginti annorum lucubrationes," should not for a moment be suspected of sacrificing precision to the harmony of periods. Lord Mansfield was a scholar and an orator; but his eloquence at the bar, in the senate, and on the bench, were as much unlike each other, as the eloquence, of which we complain, is unlike either. After all, we are not enemies to true eloquence. And when our judges shall have taken as much pains in forming opinions in the cases before them as Lord Mans field always did, and shall have spent as many years in the acquisition of polite and elegant literature as he did, we shall not object to their being as eloquent upon the bench as his lordship. It will no doubt subject us to the "suspicion of dulness," yet we shall not scruple to declare, that in a judge we prefer labour to genius, and pains taking to ingenuity. Among other instances of prolixity that occur in these reports, may be mentioned,the case of Smith v. Bowker, [p. 76] which occupies nearly six pages. By the way, the defendant is called Joseph and Jotham; which is the true name? We think something like the following would have comprized every thing material in the case. If we are correct in this, it shews how much might have been gained by a judicious abridgment of many of the cases in this volume. "This was trespass for taking the plaintiff's cows. A case was stated for the opinion of the court, in substance, that the present plaintiff had before made a promissory note to one Sweetser, who purchased a writ of attachment thereon against the plaintiff, calling him of Orange, in the county of H., instead of Athol, in the county of W., his true place of abode. Service was made by J.S., deputy sheriff of H. county, that he had attached a hat, the property of A. S. named in the writ, and left him a summons for his appearance. This summons was left at the dwelling house of the plaintiff in Athol, in which town he has always lived. There was no appearance, and judgment was rendered, by default, at the first term, and execution issued and directed to the sheriffs, &c. of W. and H. counties, describing the parties as in the writ of attachment, and was a delivered to the defendant, deputy sheriff in W. county, who, by virtue thereof, took the cows mentioned in the declaration, and sold them to satisfy the execution. For the defendant was cited Crawford v. Satchwell, 2 Stra. 1218. The court was clearly of opinion, that the defendant was not a trespasser. He was justified by his precept in doing what he did. Smith should have appeared and pleaded the wrong addition of place in abatement. By not doing so he waved the mistake, and he now comes too late to avail himself of it. Judgment for the defendant." Simmons &c.v.W.C.Apthorp &c. [p.99] petition for a review, or new trial. The case is not long, but it might have been shorter. It would have been sufficient to state, as in the margin, that it was determined by the court, that on such petitions the petitioner shall be confined, on the hearing, to the allegations ir the petition. The case of Hall v. Hall [p.101] is too trifling to merit insertion. The decision is also, to say the least of it, questionable. It was probably made without any consideration. We think the oath of a witness to prove payment as "high" and better evidence, than the bare receipt of a collector of taxes. Clap v. Joslyn in review [p. 129]. The circumstances of this case were very particular, and such, it is to be hoped, as will never happen again. It was unnecessary to state them. All that seems useful to mention is, that in this case the court settled it as a rule of practice, that in an action of review, granted by the court under the statute, the court may, on a rule to shew cause, quash the writ for want of notice to the adverse party, of the application for a review; or, |