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could add profitable, to him ;-but principally, that we may have an opportunity of expressing our sin cere conviction, that our system of jurisprudence is radically defective, and that we shall never have any thoroughly examined and well-digested determinations, decisions which will stand the test of time and serve as permament and fixed rules, so long as the judges, the depositaries of our law, are wandering through the state, without any fixed or permanent place of abode,

The old proverb that a "rolling stone gathers no moss" is not more true, than that a court, constantly in motion, settles and establishes no principles of law. When the principal business of a court is to travel and to retail the law in every county town, is it reasonable to expect deep research, nice discrimination, or copious discussion on legal questions? Let our readers, figure to themselves our supreme judicial court in session at Lenox, for example. Questions of law and trials of fact are blended together on the docket. Amid the tumult and bustle necessarily incident to trials by jury, counsel occupied and teased with clients, witnesses, &c. it is easy to see how questions of law will be argued, even by eminent counsel. The judges, long absent from their families, can hardly be supposed to be perfectly at ease in their minds. Denied all access to books, and fatigued with the labours of the day, and liable, from their situation, to constant in terruptions, they cannot so much as have an opportunity of communi, cating their sentiments, or of hearing one another's reasons. On Saturday morning they must pronounce judgment. Under such circumstances is it not cruel to exact an opinion, and ridiculous to

expect a matured and well-digest. ed one? The first thoughts which occur to a sensible, and if you please to a learned lawyer, on legal questions, may be reasonable, we grant; but they may not be so reasonable, so just, as after thoughts. The conjectural positions of natural reason, if not fortified by precedents, if not confirmed by elementary writers, or if they are not the result of much previous study and patient investigation, are always to be distrusted. A judge should think reasonably, but he should think and reason as one "long accustomed to the judicial decisions of his predecessors." He should be well versed in history, and especially in the history of the constitution, laws, manners, and customs of his own country.

The study of New-England an tiquities, if we may be allowed the expression, is a necessary qualifi◄ cation of a New-England judge, We recollect having been, a few years ago, strongly impressed with its importance on reading Hazard's Historical Collections. It is well known, that in New-England much greater regard is shewn to probates and letters of administration brought from the neighbouring states, than is allowed by the English law, or by the laws and usages of the other states in the union. We have found our courts admitting executors and administrators to sue here on the authority of let ters obtained in other states, tho' we do not recollect that we ever heard them explain the origin of this deviation from the English laws.

It appears from the journal of the commissioners of the united colonies, 19th of the 7th month, 1648, [II. Hazard, 124, 135] “ cer tain propositions were commended by the commissioners to the con

sideration of the general courts of the several colonies," which, as far as relates to our present purpose, were, "that, for the more speedy and free passage of justice in each jurisdiction, wills,proved and certi fied in one of the colonies, without delay be accepted and allowed in the rest and that administration, granted in the colony to which the intestate belonged, being duly cer tified, be in force for the gathering in of the estate in the rest of the colonies." By returns of the commissioners, it afterwards appeared, that all the general courts had assented. Would it not have been desirable,that the legislature should have made provision for publishing all the old laws of the province, rather than the private acts passed since the revolution? It is appre hended,that the knowledge of these is absolutely necessary to a thorough understanding of what is now considered as the common law of this commonwealth.

On perusal of this volume of reports we were forcibly struck with the small number of cases and authorities cited. Those of our own courts do not exceed ten, and those from the English books, probably, fall short of one hundred, Both lawyers and judges seem to be sparing of authorities, and liberal of declamation and reasoning upon general principles. In this particular the work unfortunately resembles Root's reports. Decis jons, which rest altogether on the good sense of the judges who make, we ought not to say, who pronounce them, will be of little use. They do not make, what was uncertain before a permanent rule, for a rule implies something bind. ing, something which is to be followed. In such cases the suc ceeding judge will be too apt to decide as his predecessor did, that

is, according to his own private sentiments; and thus we cannot expect to have the scale of justice even and steady. It will waver with every new judge's opinion.

It would give us pain to find ev, idence in these reports, that our learned judges are unfriendly to the use of precedents; because it would indicate a greater reliance on their own abilities, (and we acknowledge they are great) than any men, in our opinion, are justified in entertaining. We are far from yielding a blind obedience to authorities. There are cases, which do not require them, and there are decided cases, which weigh little against clear and solid principles of reason. But it is well known, that the rules respecting contracts, which furnish a great branch of civil business, are, in general, the same in this and most European countries, being mostly derived from the civil law. We ought to avail ourselves of their decisions. It is safer for the wisest judge to lean on the matured and well-settled opinions on such questions, than on his own private judgment. We are pleased with lord Kenyon's sentiments on this subject. "Those, who are confident in theirown superiour abilities," says that sound lawyer and able judge, "may perhaps fancy that they could make a new system of laws, less objectionable than that under which they live. I have not that confidence in mine; and am satisfied by the decisions and series of decisions of great and learned men, on the rules of law; and it is my duty, as well as my inclination, to follow and give ef fect to those rules." The same great judge, speaking of lord Hardwicke observes,that his knowl edge of the law was most extraor dinary; that he had been trained

could add profitable, to him ; but expect a matured and well-digest.. principally, that we may have an ed one? The first thoughts which opportunity of expressing our sin, occur to a sensible, and if you cere conviction, that our system of please to a learned lawyer, on legal jurisprudence is radically defective, questions, may be reasonable, we and that we shall never have any grant; but they may not be so reathoroughly examined and well-di- sonable, so just, as after thoughts. gested determinations, decisions The conjectural positions of natuwhich will stand the test of time ral reason, if not fortified by prec: and serve as permament and fixed edents, if not confirmed by elerules, so long as the judges, the mentary writers, or if they are not depositaries of our law, are wan. the result of much previous study dering through the state, without and patient investigation, are al any fixed or permanent place of ways to be distrusted. A judge abode,

should think reasonably, but he The old proverb that a “ rolling should think and reason as one stone gathers no moss" is not more “ long accustomed to the judicial true, than that a court, constantly decisions of his predecessors." He ịn motion, settles and establishes should be well versed in history, no principles of law. When the and especially in the history of the principal business of a court is to constitution, laws, manners, and travel and to retail the law in every customs of his own country. county town, is it reasonable to ex. The study of New-England an, pect deep research, nice discrim tiquities, if we may be allowed the ination, or copious discussion on expression, is a necessary qualifia legal questions? Let our readers, cation of a New England judge. figure to themselves our supreme We recollect having been, a few judicial court in session at Lenox, years ago, strongly impressed with for example. Questions of law and its importance on reading Hazard's trials of fact are blended together Historical Collections. It is well on the docket. Amid the tumult known, that in New-England much and bustle necessarily incident to greater regard is shewn to pro. trials by jury, counsel occupied bates and letters of administration and teased with clients, witnesses, brought from the neighbouring &c. it is easy to see how questions states, than is allowed by the En of law will be argued, even by em- glish law, or by the laws and usainent counsel. The judges, long ges of the other states in the union., absent from their families, can We have found our courts admithardly be supposed to be perfectly ting executors and administrators at ease in their minds. Denied all to sue here on the authority of letaccess to books, and fatigued with ters obtained in other states, tho' the labours of the day, and liable, we do not recollect that we ever from their situation, to constant in heard them explain the origin of terruptions, they cannot so much as this deviation from the English have an opportunity of communi, laws. cating their sentiments, or of hear, It appears from the journal of įng one another's reasons. On Sat- the commissioners of the united urday morning they must' pro- colonies, 19th of the 7th month, nounce judgment. Under such 1648, (II. Hazard, 124, 135] “ cerę circumstances is it not cruel to ex- tain propositions were commended act an opinion, and ridiculous to by the cominissioners to the cong

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sideration of the general courts of is, according to his own private the several colonies," which, as far sentiments ; and thus we cannot as relates to our present purpose, expect to have the scale of justice were, “ that, for the more speedy even and steady. It will waver and free passage of justice in each with every new judge's opinion. jurisdiction, wills,proved and certi- It would give us pain to find ev, fied in one of the colonies, without idence in these reports, that our delay be accepted and allowed in learned judges are unfriendly to the rest : and that administration, the use of precedents ; because it granted in the colony to which the would indicate a greater reliance intestate belonged, being duly cer- on their own abilities, (and we actified, be in force for the gathering knowledge they are great) than in of the estate in the rest of the any men, in our opinion, are justicolonies.” By returns of the com- fied in entertaining. We are far missioners, it afterwards appeared, from yielding a blind obedience to that all the general courts had as authorities. There cases, sented. Would it not have been which do not require them, and desirable that the legislature should there are decided cases, which have made provision for publishing weigh little against clear and solid all the old laws of the province, principles of reason. But it is well rather than the private acts passed known, that the rules respecting since the revolution ? It is appre- contracts, which furnish a great hended that the knowledge of these branch of civil business, are, in is absolutely necessary to a thor- general, the same in this and most ough understanding of what is now European countries, being moste considered as the common law of ly derived from the civil law. We this commonwealth.

ought to avail ourselves of their On perusal of this volume of decisions. It is safer for the wireports we were forcibly struck sest judge to lean on the matured with the small number of cases and well-settled opinions on such and authorities cited. Those of questions, than on his own private our own courts do not exceed ten, judgment. We are pleased with and those from the English books, lord Kenyon's sentiments on this probably, fall short of one hundred, subject. “ Those, who are confidBoth lawyers and judges seem to ent in theirown superiour abilities,” be sparing of authorities, and lib- says that sound lawyer and able eral of declamation and reasoning judge, “ may perhaps fancy that upon general principles. In this they could make a new system of particular the work unfortunately laws, less objectionable than that resembles Root's reports. Decis- under which they live. I have not ions, which rest altogether on the that confidence in mine ; and am good sense of the judges who make, satisfied by the decisions and we ought not to say, who pro. series of decisions of great and nounce them, will be of little use. learned men, on the rules of law; They do not make, what was un- and it is my duty, as well as my certain before a permanent rule, inclination, to follow and give effor a rule implies something bind. fect to those rules.” The same ing, something which is to be fol- great judge, speaking of lord lowed. In such cases the suc- Hardwicke observes,that his knowl, ceeding judge will be too apt to edge of the law was most extraordecide as hiş predecessor did, that dinary ; that he had been trained

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op very early in the pursuit, and have happened, if we did not had the greatest industry, as well mong ourselves communicate our as abilities, and in short was a sentiments with great freedom • consummate master of the profes- if we did not form our judgments sion. Yet he observes, “it was without any prepossession to first got the practice of this great judge thoughts.*' Too many of our ju. to give his opinion on a sudden ; dicial opinions are nothing but first but after mature consideration, and thoughts. after hearing all that could be said If the present volume of reports for and against the point in queso should be less esteemed in the othtion."*

er states, thar those of Mr. Dallas, Judges, who do not avail theme we think it will not be on account selves of the “light and assistance of any superiority of Mr. D. over of former precedents, will be often Mr. W. as a reporter: and we are found differing in opinion. In the very unwilling to admit that the course of nine inonths, and in the judges of Pennsylvania, and espetrial of little more than one hun- cially of the common pleas, (of dred causes, we have observed a which court there are some excel. difference of opinion on the bench lent decisions in Dallas) are men in no less than fifteen instances, of superiour abilities to the judges

In the King's Bench, during a of our supreme court. If the deperiod of thirteen years, every rule, cisions of the former should be order, judgment, and opinion was deemed superiour, it must be as. unanimous. This gave weight to cribed to the favourable advantages the decisions, certainty to the law, under which they were made. In and infinite satisfaction to the suit- that state questions of law are prin ors. How honourable to the law, cipally decided in Philadelphia, and and we may add, to the judges ! trials of fact and issues of law are They were all men of unquestion- not mixed up together as with us. able abilities, and some of them, as The mention of Dallas's reports Jawyers, not inferiour to lord Mans- reminds us of a hint to Mr. W. held himself. But all were " long suggested by the perusal of the personally accustomed to the jur volume before us. We have ob. dicial decisions of their predeces- served in a few instances expressors ;" all felt themselves bound sions which it would have been well by them. No one thought him to have avoided, some of them per self at liberty to decide according culiar to New England. We have to his own private judgment, but ac- no doubt Mr. W. has taken pains cording to the known laws and cus- on this subject ; and we think the toms of the land." This extraor work is, in this respect, more correct dinary unanimity affords the highs than any legal work yet published est evidence of their industry as

in this state. Instead of summing well as candour. Lord Mansfield up to the jury, Mr, W. speaks of alluding to it, says, " it never could charging the jury; for evidence

produced by the prosecutor, he * If our jadges have objections to the speaks of evidence produced by fase of English authorities, there does not

government ; for first count in the seem to be any reason why they should indictment, in some instances, hệ not avail themselves of American. We do not recollect to have met with a sin- says, first charge in the indictment; gle quotation, either by the bench or at he uses, exceptions made, instead the bar, from Sullivan's Land Titles, of taken, to a plea ; motion rejecte

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