Obrázky na stránke

ing knife to the excrescences of the trunk and root, without inquiring for the present, whether there is any feasible process for regulating the luxuriant growth of the branches. To explain our ideas, and show clearly the advantage of what we propose, it is necessary to take into view some preliminary considerations. The principles of the common law, let it be remembered, are built upon precedent. The great bulk of it is composed of the decisions of wise judges, of judicial construction, which, Sir Edward Coke says, in long succession of ages hath been fined and refined by an infinite number of grave and learned men,' until it is become a sort of • learned reason. No matter whether you regard this body of construction, according to the idea of many, as originally fortified by statutes, that have perished in the lapse of time, no matter if it is to be taken, as others maintain, for the evidence merely of immemorial usages and customs consecrated by ages of observance, no matter whether it appears among the cases of a report, or has been skilfully incorporated into the pages of an abridgment or treatise, it is still construction, and stands as the law purely, because it is an established decree, recorded for a precedent.' The judgment, by which any particular point was solemnly adjudged, is the legal evidence, whereby that point, whenever it is drawn in question, is proved to be sound law. The corner stone of our law is authority. The leading inquiry, therefore, in every case is, whether the principle investigated has ever been deliberately adjudged; the next, whether that decision hath since been confirmed, or else overruled, or qualified, or denied, or doubted in some later decision of equal authority ; then we must ascertain how far it may have been modified by provisions made by statute; and sometimes, but rarely, whether the doctrine be thus manifestly and inherently unreasonable, thus at war with all the dictates of common sense, that no court of justice would now sanction its application to the case in hand. It is evident, therefore, that legal decisions do not, like other things, become enfeebled by their age, but rather gain additional authority as they grow venerable from years. Their antiquity, when they subsist undenied, is a proof that they wear the sanction of time, who is wiser than all the coexisting wits in the world.' Hence the old reporters, the Year Books, Plowden, Dyer, Coke, are still resorted to by the jurist as 'the wells of English undefiled,' and sustained as authority in our courts.

The old Roman law books, the responsa prudentum, the prætorian edicts, fell into desuetude on the completion of the Institutes, Code, and Pandects. But it is not so with reports in our law, of which digests and abridgments are published ; because the very best of these are for the chief part only an index to cases decided. Some writers on the common law, it is true, like Littleton and others of the ancient authors, are cited as authority for opinions, which are unsupported by any known decision; but such instances are an exception to the rule, and not the rule itself; and are admitted either for the extraordinary merit of the book, or more frequently because it is presumed, that the doctrines advanced in it are deduced from decisions, which, in the early periods of our law, failed of being elsewhere and otherwise recorded.

The principle is applied to the most excellent abridgments and treatises, no less than to those of questionable goodness. • Viner is no authority; cite the cases that Viner quotes; that you may do ;' are the words of Sir Michael Foster. (Burr. 1. 364.) Lord Redesdale made a similar observation concerning Blackstone. 'I am always sorry to hear Mr Justice Blackstone's Commentaries cited as an authority; he would have been sorry himself to hear the book so cited ; he did not consider it such ;' said the Irish Chancellor. (Sch. and Lefr. I. 327.) Hence the original reports will not soon, if ever, cease to be useful, at least for the purposes of occasional reference and of citation as authority, if not of constant perusal. Now while the old reporters, those who flourished under the Tudors and the Stuarts, contain many cases of the greatest value, important leading cases, on which large portions of the law are wholly dependant, they abound with others, which the abolishment of the feudal tenures, the extension of commerce, and the consequent elevation of the law of contracts in general to the place once filled by the law of real estate, and many radical alterations introduced by statute or otherwise, have been rendered of little use even in England. And the proportion of cases of the latter kind is vastly increased with us, where, in addition to the same causes, which have operated in the proper country of the common law, the novelty of our government, the free principles engrafted upon all our institutions, and visible in the simplification and constant changes of our law, are all conspiring to lead away its streams more and more from their fountain head.

Now we suggest, whether it would not be a valuable and acceptable thing for the profession, if the old reporters, instead of being republished here entire, were circulated in editions adapted to the exigency of the times, and of our country, the reports of each individual author being retained by themselves in the proper form of reports, but with the omission of the obsolete cases, and with suitable references and critical annotations. The bulk and expense of the res ports would be sensibly diminished, by thus striking out the vast number of cases, which it is morally impossible should now, or at any future time, be quoted as authority in America. But a greater good might be achieved by means of the illustrations, which ought to accompany these works. Such an edition, for instance, should present the reader with an account of the merits of the author, as, whether he was considered by the court a safe or a dangerous guide, whether he was a faithful or unfaithful reporter, on which point alone, in the case of conflicting precedents, the decision of a cause might happen to turn. The history of the book and of the writer are matters of curiosity, if nothing more, concerning which, although there are abundant materials extant, yet the common editions of our reports but seldom afford us any information. But in the compilation of such a work there is most room for the exertion of profitable industry in the elucidation of the cases themselves; for let it comprehend a complete history of each case deduced from the first adjudication of the point, through intermediate decisions down to the present day, and it would be more valuable for instruction, and, if enriched with a proper index, more convenient for citation and refer

ce, than all the abridgments in the world.

By turning to any case in those reports, you would then have the law, as it was actually administered and expounded by the court, free from the mutilations, corruptions, and mistakes of the digests and law treatises, and at the same time you could see how far forth the case continued an authority, whether it was correctly reported or not, in what respects it had been contradicted, or modified in its principle or appli

New Series, No. 18. 49

cation, by subsequent decisions, whether it had been invariably respected by courts and legislatures, and still stood unimpaired, a venerable monument of the wisdom of olden times, or whether it had been undermined directly or indirectly by the action of time, and in fine, what was now the whole state of the law in relation to that individual case. How such an edition of some of the best of the old reporters might be received, we know not; but we are inclined to the belief, that it would supply a desideratum in legal science, which the discursive ingenuity, and prolific industry of the age have as yet left unattempted.

Art. XXII.-1. A new American Atlas, containing Maps

of the several States of the North American Union, projected and drawn on a uniform Scale, from Documents found in the Public Offices of the United States and State Governments, and other original and authentic Informa

tion. By HENRY S. TANNER. Philadelphia, 1823. 2. A General Atlas, containing distinct Maps of all the

known Countries in the World; constructed from the latest Authorities. Published by FIELDING Lucas, Jun. Baltimore, 1823. No branch of study has been gaining ground more rapidly and successfully among us, during the last few years, than that of geography. Till recently our books and maps were few in number, and exceedingly defective in their execution. Morse's first editions were faulty in the extreme, comprising a mass of materials, historical, topographical, statistical, and political, thrown together without method, selected with very little discrimination, and often with a looseness quite as likely to deceive the reader into misconceptions, as to enlighten him with facts. From sources like these, our schools, and the community at large, were compelled to draw much the larger portion of their geographical knowledge. We mean this censure to apply, however, only to the earlier editions; the work has undergone gradual changes, and every one for the better. In its present dress, as arranged after the

few years.

method of Pinkerton, we esteem Morse's Geography a valuable work, and we trust its present, and its future merits and usefulness, will be the means of wearing out some of the wrong impressions, which it has formerly contributed fix in the minds, not only of our own countrymen, but of foreigners. The general accuracy of the last edition encourages the anticipation of such a result.

In correct atlases and maps we have been scarcely less deficient, than in good books of geography. In this respect, however, a very favorable change has taken place within a

With a laudable and generous spirit of improvement, several of the states have made provisions for new surveys, and appointed skilful topographers to carry their resolutions into effect, and collect materials for a minute delineation of the features of the country. In some instances, very elegant and valuable maps have been constructed from these surveys, drawn on a large scale, and adapted to practical purposes.

In the beauty of execution, and, we believe we may say with confidence, in the accuracy of construction, we have seen nothing in their way superior to the atlases of Mr Tanner, and Mr Lucas. They do equal credit to the skill of the artists, and to the enterprise, industry, taste, and geographical knowledge of the authors and publishers. Each of these works has an object essentially distinct from that of the other, and each supplies a vacancy, which no other separate series of maps within our knowledge could supply so well.

Mr Tanner's Atlas is confined almost exclusively to delineations of the American continent. It is commenced with a map of the World, of Europe, of Asia, and of Africa, which give a finish to his general plan, and show the relations in which America stands to the other quarters of the globe. These are in themselves large and well delineated maps, and sufficiently minute for common purposes. In his Geographical Memoir, prefixed to his Aulas, Mr Tanner explains his object in the following words.

"The end proposed to be effected, by the publication of the American Atlas, was to exhibit to the citizens of the United States a complete geographical view of their own country, disencumbered of that minute detail on the geography of the eastern hemisphere, which is usually introduced into our atlases, to the exclusion of

« PredošláPokračovať »