ORIGINAL.

Quam videor, par est; et me Narcissus

amavit.

dere cœli

[30..Seu formam,' etc. Forma Umbre. [25.. sibi judices,' etc. Fabula Asini umbra.

[38.. Sive es,' etc. Virtus.

[52... Quos inter Nicis,' &c. Vid, Plin. lib. X. cap. 12.

Gathering ice the tackle binds, Wildly howl to loosen'd winds. To direct no friendly light Glimmers through the gloom of night; But the lamp, that erst so sure Mark'd the course, thick snows obscure. Now each unavailing care Yields to helpless, wild despair. Louder now the tempest ravos, Higher swell the heaving waves ; Now they dash the feeble skiff On the craggy, pointed cliff; Now ascends the dying groan ;....... Nought avails the widow's mean, Nought the tear by pity shed O'er the relicks of the dead.

H.

EPISTLE TO A YOUNG FRIEND.

By Burns.

1.

I LANG hae thought, my youthfu' friend,
A something to have sent you,
Tho' it should serve nae ither end

Than just a kind memento;

But how the subject theme may gang,
Let time and chance determine;
Perhaps it may turn out a Sang i
Perhaps, turn out a Sermon.

2.

Ye'll try the world soon, my lad,
And, Andrew dear, believe me,
Ye'll find mankind an unco' squad,
And muckle they may grieve ye :
For care and trouble set your thought,
E'en when your end's attained;

And a' your views may come to nought,
Where ev'ry nerve is strained.

3.

I'll no say, men are villains a';

The real, harden'd wicked,

Wha hae nae check but human law,
Are to a few restricted:
But Och, mankind are unco weak,
An' little to be trusted;

If SELF the wavering balance shake,
It's rarely right adjusted !

4.

Yet they wha fa' in Fortune's strife,
Their fate we should na censure,
For still th' Important End of life
They equally may answer :
A man may hac an honest heart,
Tho' Poortith hourly stare him ;
A man may tak a neebor's part,
Yet hae nae cash to spare hitn.
Vol. III. No. 3. S

ART. 13.

Reports of cases argued and determined in the supreme judicial court of the state of Massachusetts from Sept. 1804 to June 1805, both inclusive. By Ephraim Williams, Esq. Vol. I, 8vo. pp. 570. $5 bound. Northampton, published by S. & E. Butler. 1805.

WE congratulate the publick on the appearance of the present work; the first-fruits of the office of reporter, lately established by author ity of the legislature. In arbitrary governments, where the people, have nothing to do with the laws but to obey them, a work of this. kind would be highly useful, tho' hardly to be expected; for decisions and precedents, like acts of the legislature, limit the power of rulers and judges: but that a free people, whose boast it is, that they are governed by laws and not by men, should be totally indifferent to what passes in their courts of justice is a thing we should hardly credit, on less evidence than that of experience. What should' we think of the legislature, if our statutes were to be found only in the books of the secretary's office? Would it not be deemed a most criminal violation of the rights of the people; the most obvious of which is, that of knowing the laws by which they are governed? And, yet a moment's reflexion will serve to convince us, that it is no less so, that the decisions of our courts

of justice should exist only in the breasts of the judges, or in the lumber of a clerk's office.

The law of this commonwealth may be divided into two heads; the statute and the common law : and this latter is properly distinguishable into two kinds,in respect to the source from which it is derived; namely, what we had, before the revolution, adopted from the English law, and such general customs or usages (for we acknowledge no particular ones) as have prevailed in this state, and have acquired the force of law, though they make no part of the English system of jurisprudence.. Of our statutes, much the greatest number are private or special; and of those which regard the whole community, a considerable number refer to the organization of the government. They are of a political, rather than a civil nature. Of those which prescriberules of civil conduct to the citizens, rules for making and expounding contracts, principles of decision on the questions daily agitated in our courts of justice, the number is small; indeed, it may be a question, whether our system of jurisprudence would suffer an injury by their total repeal. Besides, the exposition of statutes necessarily belongs to the judicial courts. The spirit, rather than the letter of the law, is what we are bound to regard. Plowden compares an act of the legislature to a nut. The words are only the

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 fur, nishes us with a rule on the sub. ject. Whatever has "been adopt ed, 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 evi, dence of what has been the usual practice in our courts of law? We have no books of reports; no ev, idence 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,

use in explaining laws; but no one has taken the trouble, with reference to this subject, to examine the history of the state, from its settlement to the revolution. The legal customs and usages, which have sprung up among us, have never been collected In short, our common law is truly an unwritten law. It is merely oral, or communicated by word of mouth, It rests altogether on uncertain tradition.

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 acquainted with the principles of the English law. It is a task of much greater difficulty, to become mas, ter of the law of this commonwealth. 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 wonder the points which have heretofore ful, that they should pursue the easier, but more dangerous course