ART. IX.-Reports of Cases Argued and Determined in the Circuit Court of the United States, for the Second Circuit, comprising the Districts of New-York, Connecticut, and Vermont. By ELIJAH PAINE, Jun., Counsellor at Law. Vol. I. 8vo. pp. 718. New York, 1827. In the course of the following article we intend to speak at some length on the importance of promptly reporting adjudicated cases, particularly those settled in the United States courts; of the nature and necessity of the common law, and the only sure means of improving it; of the impossibility of codifying it completely in any of our free legislative assemblies, and the utter inutility of such a measure, even were it easily practicable. At the close of the piece we shall make a few remarks on the volume before us, and on the character of the eminent judges, whose adjudications compose it. We have chosen to lay out our ground thus distinctly before our readers, in order that they may know perfectly well what to depend upon, before they begin. To many of them, no doubt far the greater portion of our theme will be uninteresting, although we ourselves think it of the highest importance. Hitherto we have thought it so much so, that in order to give free play to an inquiry into the merits of the common law, we have admitted into our journal articles upon the subject from the opposite parties in the controversy, and therefore, as it would at first sight appear, wholly irreconcilable with each other. It is of great consequence, we say, that the leading questions in this dispute should by this time be definitively settled. If the common law be of the vicious character, of which some have represented it to be, it should as soon as possible be removed, closely interwoven as it is, with all our political institutions. If, on the contrary, it be an excellent system in itself and admirably suited to our growing wants and changing circumstances, we ought to feel assured of it, that we may live contented under its administration, and do all in our power to give it security and improvement. This is the state of the case, as it appears to us at present. Measures are proposed for the removal of an evil, which does not exist; if it do exist, it is unavoidable; if it be not unavoidable, still the measures proposed never will remove it; and even if they could remove it, when promptly and efficiently carried into execution, in this country at least we venture to say they are wholly impracticable. Since we last published an article upon this subject, we have the opinion of one of those venerable sages of the profession, who, uniting the noblest talents and the most extensive learning, with the greatest experience, both at the bar and upon the bench of one of the highest courts of judicature in our country, cannot be regarded with too much respect. We should be almost willing to cite such an one, as conclusive authority upon a question, which he is so perfectly competent to settle. Our readers understand us, of course, as alluding to the profound and eloquent Commentator on American Law. We will lay his opinion before them. 'In its improved condition in England, and especially in its improved and varied condition in this country, under the benign influence of an expanded commerce, of enlightened justice, of republican principles, and of sound philosophy, the common law has become a code of matured ethics, and enlarged civil wisdom, admirably adapted to promote and secure the freedom and happiness of social life. It has proved to be a system replete with vigorous and healthy principles, eminently conducive to the growth of civil liberty.'-Kent's Commentaries, vol. I. pp. 321, 322. 'A great proportion of the rules and maxims which constitute the immense code of the common law, grew into use by gradual adoption, and received, from time to time, the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice, and of cultivated reason, to particular cases. In the just language of Sir Matthew Hale, the common law of England is "not the product of the wisdom of some one man, or society of men, in any one age; but of the wisdom, counsel, experience, and observation, of many ages of wise and observing men." And his further remarks on this subject would be well worthy the consideration of those bold projectors, who can think of striking off a perfect code of law at a single essay.'-Ibid. pp. 439, 440. In all ages and nations there must be common law, or leges non scripta. And in exact proportion, too, as those are advanced in civilization and refinement, do these become numercus, extensive, and intricate. It was so among the Greeks. It was so also among the Romans.* We know how it is in Eng *Constat autem jus nostrum, quo utimur, aut scripto, aut sine scripto ; ut apud Græcos, τῶν νόμων οἱ μὲν ἔγγραφοι, οἱ δὲ ἄγραφοι.” Inst. lib. 1, tit. 2, § 3. 'Sine scripto jus venit, quod usus approbavit ; nam diuturni mores, consensu utentium comprobati, legem imitantur. Ibid. § 9. 'Et non ineleganter in duas species jus civile distributum esse videtur.' Ibid. § 10. Aristotle also makes precisely the same distinction. Rhet. lib. 1, cap. 10. Rhet. ad Alex. cap. 1. land. It is more or less so in fact, all over the civilized world. It is the case even in France, and is rapidly becoming more so, as we understand, and as every rational man might have fairly expected, under the admirably digested code of Napoleon.* It is so, in short, from the uncompromising nature of things. It lies not in human foresight to anticipate even the various classes of cases that may arise. What legislature, for example, could have previously provided for the great questions that have presented themselves under policies of insurance, or bills of exchange, or promissory notes, or the admissibility of evidence, or the taking of testimony, or in short under any branch or department of law? for to attempt to enumerate them is to limit ourselves, and to confess that they may be enumerated, when they are in fact innumerable. New and unimagined cases will for ever come up, for which no legislative provision could have been made. What then is to be done? There cannot be a great and grievous wrong, without a violation of law. The questions therefore cannot be laid aside; and by what laws must they be settled? By the leges non scripta, by analogies drawn from previously adjudicated cases, by well established usages and customs, existing among intelligent and experienced people, and arising from, and therefore adapted to their wants, and to circumstances in which they have been placed, and finally ratified by the sanction of the courts of judicature. It is this in fact which forms the first and perhaps the only true foundation of the common law. And without the liberty of judicially resorting to it, we should be in a state infinitely worse than despotism; a state where there are innumerable and continually multiplying violations of right, for which, however, there can be neither redress nor remedy. We may hold it therefore for an incontrovertible truth, that there must be a common or unwritten law in every civilized state. If it be an evil, it is a necessary evil. No human ingenuity can prevent it. The only question then remaining is, how we can ensure to it correct principles, and give it all the accuracy of which it is susceptible. And we shall give our reasons, in the course of this article, for believing that this can * Still this code, with all its excellencies, has many defects. It provides no legal remedies. It says nothing of the various forms of action; of pleas or pleadings; of the law of evidence, or of the testimony of witnesses, &c. And it is from some of these sources, that the greatest embarrassments have arisen in settling our common law. VOL. XXVII.-NO. 60. 22 only be done by publishing promptly and faithfully able reports of important decisions, and by applying to the legislature for aid when the evil is of a nature to require correction. There seems to be something contradictory in the arguments, as they are usually urged, against the character of the common law. By one, the judge is called a legislator, moulding his decisions to suit his own notions of equity and right. By another, he is thought to be so absolutely bound down to precedent and authority, that he dares not depart from them, however unreasonable they may appear to him to be. To our apprehension neither of these statements is in any degree correct. In fact, they neutralize each other. The legislator is free. No decree from a higher authority, except it be the letter and the spirit of the Constitution, has any restrictive force over his measures. Far different from this, however, with the judge upon the bench. In the capacity of legislator, he has authority to act only so far as is necessary in order to carry some law into execution, and then he is within the narrowest limits, and strictly and ably watched. In clearly settled cases, he is indeed bound to acquiesce; not because they were arbitrarily or peremptorily decreed, but because, as has been often observed, the points of the question in controversy were thoroughly examined by the keenest minds in competition with each other; and then deliberately pronounced to be law by cool and impartial judges; and because the principles of justice, which regulate the rights of one man, ought not to be refused to another. When the original cases were evidently not well examined in the outset, they may be reëxamined, and overruled, and set aside; and this is the condition, which is always annexed to them in practice. But when they were so examined, there is every reason for giving them the obligatory force of law. We should feel the greatest insecurity of property and of rights, were it otherwise; to say nothing of the time and labor uselessly spent in searching for what had already been well ascertained. It would be with us no ground of fear, were our judiciaries actually invested with legislative powers, far more extensive than any that they have been accused of arrogating to themselves. Judges, sharply and unremittingly watched from every side of the question in controversy, by the shrewdest and most intelligent men in the community, whom education and the warmest feelings of pride, ambition, self-interest, and rivalry of excelling in the discharge of their professional duties, combine to make acute in the detection of errors, and bold and active in publicly exposing them, will not venture, intentionally, to go very far astray from the plain principles of rectitude. They are as strongly protected, too, from unintentional wrongs. It is from the same well guarded and unexceptionable sources, that they are compelled to receive all possible light and instruction. In such a body of men, and thus situated, we should not be afraid to repose absolute legislative power, so far, at least, as is necessary to regulate the common transactions between man and man. And when we see the time and money which are now miserably wasted by many of our legislatures in making bad laws, to say nothing of the faction and the views of self-interest which reign in them, and the poor principles of qualification on which some of their members are elected, we almost wish that it were so. It is perhaps the ultima Thule in the career of political improvement. In general, however, we believe that the writers against the common law have now given up what was formerly the most important point in the controversy. They concede that it contains some of the most admirable principles in any system or code; and the object seems to be merely to select these, and purify them from the dross, with which they say they are mingled, and then give them the sanction of some direct act from the legislature. These arguments appear to be directed against a few of its slight errors, and, in the formal part of it, against some prevailing absurdities, which its warmest admirers are now willing to allow to be such. They are errors; they are absurdities. They have brought the whole system into disrepute among the truest, and in some instances the most enlightened friends of equity and right; and although not materially, in the end, affecting the prompt and efficient administration of justice, they may be, and no doubt in some cases ought to be corrected. not the business of the judiciary, however, to undertake this. With all their legislative powers, which are so much complained of, and how much soever themselves may desire the reformation, they will not, they dare not attempt it. The legislatures of every state in the union come together once or twice in a year, with this as one of the principal objects of their convening; and when the evil is so great as to cry aloud for a remedy, there is no doubt that an adequate one may be applied. Let us have a care, however, lest we undermine and make the whole venerable It is |