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 rarely contain a sufficient statement of the facts, on which the decision is grounded, and never the argue ments 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 equally 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 game 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 mon uments 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 shal! hereafter have occa sion to consider. With regard to what is the best method of reporting, we are sensi ble that a difference of opinion prevails among those, most conver sant 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 foreign 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 material 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 cole lect suitable materials, judgment to select and arrange them, and great accuracy in every thing. In a word, that is the best book of re ports, 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 ape proach the nearest to this standard. Mr. Williams, in a very modest and well written preface, which • Reports of Cases adjudged in the circuit court of the United States, for the third circuit. prepossessed us in his favour, and 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 impar lances, 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 received 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.373.] 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 attorney-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, 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 we 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 inju ry 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 justlyboast 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 or ator; 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 feld 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 painstaking 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 in 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 hap~ pen again. It was unnecessary to state them. All that seems useful to mention is, that in this ease 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, the court may then hear the parties on the merits of the petition for a new trial. Walker &c. v. Maxwell, [p. 104.] In this case two new ques tions were decided. 1st, that the allegation, by a defendant who be longs to another state in the union, that the debt for which he is now sued has been attached in his hands as garnishee by process of foreign attachment in his own state, at the suit of a creditor there,...that all the proceedings in the foreign attach ment were pursuant to the statute in such state, is not sufficient. The statute should have been set forth, that the court might see whether the proceedings were authorized by it or not. 2d, that amendment may be allowed, after argument on demurrer. We have called these new points; the second was not a hew question, being the same that was decided in Holbrook v. Pratt, [p. 96] but the decision was new, being directly contrary to the for mer one. This case occupies twelve pages, little less than a fortieth part of the volume, and costs every reader 10 cents,...a great deal more than it is wo h. It was not ne cessary, to state the pleadings; that part printed in italics and the substance of the rest would have been sufficient. There is nothing in these records of pleadings so excel lent as to merit insertion at length. It is but justice to Mr. W. to say, that his statements of facts seem much more correct than those drawn up by the counsel, which are often stuffed with im pertinent matter; and in some in stances so erroneous, as to require correction by the reporter. Other examples might be giv en of statements and reports un necessarily prolix. There are also cases where the statements are ins complete. But we shall leave it to the sagacity of our learned readers to discover and point them out. On this subject we shall barely mention some slight inac curacies in the case of Harris v. Clap, &c. [p. 308]. It would appear from many parts of the report that the judgment was at law and not in equity. And yet the chief justice speaks (p. 319, 320) of the surety coming into the court as a court of equity for relief. The four judges, who were of opinion for the plaintiff, agree that the interest on the award shall commence at the expiration of 130 days from the acceptance of it in the common pleas, which was 1st Tuesday January 1798 ; and yet the interest appears to have been cast from the 13th June 1798, the time of commencing the suit on the bond. The judges do not seem to be agreed as to the time, from which interest might be computed on the penalty. Thacher J. fixes on one hundred and twenty days after the judgment on the award, as the period. Sewall J. (we think with more propriety) fixes on the demand, that is, the commencement of the suit in the case before the court. It would seem that the judgment was at law. The debt adjudged to the plaintiff was $5000 the penalty of the bond, and $1480,55 cents, as damages for the detention of the debt; and yet the true measure of damages seems to have been declared to be the penalty and interest on it from the commencement of the suit. What but equity prevented the plaintiff from recovering full inter est, viz. $2025? The defendant did not ask equity. We have not looked into this point. Perhaps |