Page images
PDF
EPUB

A glad welcome home again,

multitude, of law-books. The decisions of those Sweet be thy song,

courts in the cases referred to them, are reported As free o'er thy native plain

and published as guides to inferior courts, to lawGliding along; O, come build thy mossy nest

yers, and to the people. These decisions, and the Here on this tree,

manner of reporting them, contribute most largely When care bas my heart opprest,

to the evil we are regretting. These probably Tben sing for me!

constitute nineteen-twentieths of the volumes in Lousrille, Ky.

which all who would know what the law is, must search for it: and it is in these, that redundancies of various kinds crowd most upon the mind.

Let us declare in the outset, that the evil is no way peculiar to Virginia. We believe that neither

her books of reported cases, nor her books of legLAW REPORTS.

islation, are more voluminous, considering her age,

population, and varied interests, than those of any Every man, and every class, have their grievan-sister state, or of the Mother country. But from ces, under which they groan without the sympathy, Virginia

, as the mother of states, and as the leader or even the knowledge of other men and other in much that is good—from Virginia, as one whose classes.

sons are heard and felt over the great West, wherAmong the grievances that oppress the class

ever eloquence or energy can find a field, and who called " Lawyers," not the smallest is the number is looked to by half the Union for lessons of poliof law-books. The vulgar idea, that lawyers de- rical wisdom and individual excellence—something light in the bulk, number, and complexity of law- better might be expected than the rubbish in which books, and try to increase them in order to make her laws are hidden. She is rescuing her statutes themselves more necessary as interpreters, is one from their part of that rubbish : will she not do among the most egregious of vulgar errors. AII

the like for that far vaster part of her jurisprudence lawyers know, that such an increase adds tenfold which is en-chaffed in her books of Law-Reports ? teore to the tax on their purses and their brains,

The necessity of reformation in this thing is now than it adds to their profits. Let laws be as few, imperious, from various considera:ions. as brief, and as clear, as human wisdom can make

The reported decisions of Virginia's two highthem, and still the ever varying emergencies of est courts, (the Court of Appeals and General society, the perpetual conflicts of interest and clash- Court) already, in this her infancy, fill 44 large ings of opinion, will make courts, and lawyers, al- volumes, averaging more than 600 pages each!* ways indispensable. Nor can the demand for them The Supreme Court of the United States, whose be much lessened, by any art of law-making. But decisions in many cases are binding upon our courts, tertainly, much may be done to increase their ease and in all cases are strongly influential, has put and satisfaction in expounding the laws, and to di- forth about 45 volumes ! binish the delays and vexations which torment The decisions of courts in other States are not suitors, by weeding away those cumbrous superflu- binding in Virginia, but they are regarded as “perities, that form four-fifths of our law-books. We suasive authority,"—are often quoted in her courts, say deliberately, four-fifths. For, laking statutes, and weigh so powerfully upon all doubtful queshr-essays, and books of reported cases all together, tions, that no well-read lawyer dares be ignorant at least that proportion might be struck out with of them. Those oftenest quoted and most respec: unspeakable improvement to their precision, their ted are from New-York, South Carolina, Massalearness, and every other quality desirable in law- chusetts, North Carolina, Kentucky, Maryland,

Connecticut and Indiana : but, Tennessee, AlaThe legislatures are chargeable with much of

bama, Ohio, Missouri, Pennsylvania, and others, this evil. Laws are commonly penned by inferior also furnish occasional authorities. Now New bands ; and often so hastily, that it is no wonder York has more than 50 volumes of Reports; Masthey are wordy and confused. Few enactments of sachusetts nearly 50; and the rest, we believe, the Virginia Legislature,* or of Congress, but from 10 10 30 each. In all, several hundred volwould be improved by shortening them one half, or

umes of our sister States.

English decisions are of more weight than those But the courts—the highest courts—and their of the sister States-partly through prestige, but reporters, are more chargeable than the legisla. more through merit: and they are more numerous Inres, with the bewildering bulk, complexity, and than all the American decisions put together. We

* The enactments of the late session, in revising the Code, are a pleasing exception to this remark. They will * In Hening and Munford, are some cases from the form an epoch in Virginia legislation, by their brevity and Richmond Superior Court of Chancery; but they occupy

beoks.

tore.

only a small space.

lucidness.

[ocr errors]

SA

[ocr errors]
[ocr errors]

cannot tell how many volumes of reports have, which the tome is sold. For, of the one hundred come from the several high courts of England lawyers or more, with whom we are personally acsince the year 1800 : they largely overgo one hun- quainted, we believe not more than thirty buy the dred. And these are as nothing, to the multitudes late Reports at all ; and it is because so few

por: issued in former centuries.

chase thiem, that the State cannot afford to sell All these judicial Law-factories are still plying them lower-by a well known law of trade. Protheir powers, to push yet further the multiplication bably all lawyers, and other persons besides, would of law-books. The two Virginia factories (be purchase the pamphlet: so that the price could be sides her Legislature) put forth a volume every reduced in a much greater proportion than the year. Those in other States, we dare say, are bulk. equally industrious. And in England, where Jus- Will the reader go with us in a scriting which tice has no longer the hobbling gait that she re- will prove all that we have said about the comprestains here, but is clear-minded and dispatchful to a sibility of the Virginia Law-Reports ? He will,degree that might well make us ashamed, -we sup- unless he is insensible to great interests, which the pose there must be three or four volumes annually. subject involves. For the wide promulgation, and

Such is the vast, and continually widening field, easy comprehension of the laws, are matters in in which the Virginia judge and lawyer must labor. which all are concerned. Thoroughly to master the decisions of his own We

propose to take the latest Reports—the three highest courts alone, would be no light task. We volumes of Gratian—which are decidedly freer PT have often known lawyers of high repute uninform- from redundancies than the ten or fifteen volumes ed, even of them; and judges, as often. Those next preceding. And even these three, we think, *** forty-four volumes are more than any ordinary can be shown to contain something like five times? mind can comprehend and remember, except by the number of words and pages that they ought to exclusive devotion to them. Add the hundreds of contain. other volumes, and what human faculties, what These volumes are swollen to their undue size 21 human lifetime, are adequate to the toil? But be- by three principal means : 1. Arguments of codesides Reports, and Statutes, there are hundreds of sel, which ought not to be inserted at all: 2. The is treatises written by jurists on various legal sub- reporter's statements of the cases, which stale- ** jects, in one, iwo, three, or four volumes each, ments are greatly too long; and 3. The opio.net which it is not safe for the advocate or counsellor ions of the judges, which often exceed a just length wholly to neglect.

as much as the reporter's statements do. SomeEnough has been said to show that some reme-times, when several or all of the judges give eep" dy is indispensable, for the magnitude and number arate opinions in a case (though coming to one com- 31 of our Law-Reports. The remedy, of course, is mon result), all these opinions are spread out in : 3:

It may not be wholly too late, even full by the reporter ; instead of being moulded by se for the tomes already published. We have hopes the court, or by him, into one comprehensive exthat even they, or most of them, may be cleared pression of their material thoughts. of their chaff by some patient and judicious winnow- Mr. Grattan's first volume consists of 564 pages: er; and we are certain that the six or eight vol- of which 219 are filled by arguments of counsel! umes thus produced would be worth more, and sell The reporter's statements (besides his abstracts, or infinitely faster, than the present forty-four. But summaries, of the points decided) fill 140 pages; the main labor of compression should be directed and the opinions of the court, 188 pages. His two to future Reports. We believe a scrutiny of those other volumes are less excessive in the first palexisting will prove, that a condensation into one-ticular: as the second volume devotes to the counfifth of their present compass is easily practicable, sel's arguments only 1394 and the third only 1024. would greatly facilitate the mastery of their con- The three contain of those arguments, 460 pages! tents, and, by ridding them of loose, extrajudicial, It is consoling to observe, that this excrescence diand misleading opinions, would vastly increase their minishes even faster relatively, than absolutely : value as judicial oracles. Taking the average of since it forms above a third part of the first volreported cases, we think each one might spare ume, ljule over a fifth of the second, and less than three-fourth of its lengih, with decided improve a seventh of the third. All future ones, we trust, ment to its merits. Many cases might beneficially will discard it wholly-except, perhaps, a mere lose a larger proportion. And many ought to be reference io the chief authorities cited by counsel, omitied altogether.

where no opinion of the court is delivered. It If these views are correct, a yearly pamphlet of may safely be said, that not one in ten of the law100, or 150 pages, would suffice to report our deci- yers who read the reports (besides the authors of ded cases ; instead of the ponderous leather-cov- ihe arguments) would wish those arguments insertered tome of 600 or 800 pages, in which the law ed. The space they fill, the money they cost to is now smothered. The pamphlet might be sold purchasers of the book, the false lights they hold at one dollar, or less—instead of the six dollars at 'out as to the law, and their tendency, if reported,

COMPRESSION.

to encourage that cacoethes loquendi which so, four of his brethren follow, in like manner, though greatly retards business in the Court of Appeals,— usually with some mitigation of length; attaining are evils far outweighing any possible good that sometimes the same result, sometimes a slightly can result from their insertion.

different, and sometimes an opposite one, by coursThen, the Reporter's statements are too long. es of reasoning, varied as it is natural for differThese are the narratives of the facts upon which ent minds to vary. Commonly the youngest judgthe decisions are given. Many of these narratives es give the longest opinions. In such dissertations, are twice the needful length ; some three times ; numberless incidental opinions, and passing reand others, five times. Scarcely one, but might marks-obiter dicta—are thrown out, which even beneficially be shortened a third, a fourth, or to their utterer perhaps would no! adhere to upon masome other considerable extent. They are dis- ture deliberation, and which, when they come up tended by the needless introduction of names and for decision are as likely to be overruled as affirmcircumstances no way essential to the points deci- ed; but which are seized on by lawyers as veritaded; and by needlessly multiplying words in sta. ble expositions of the law. Thus a thousand erting essential things. It is incredible, to most roneous doctrines are scattered through the professtory-tellers, how much more intelligible a story sion, with great chance of being adopted by the is made by leaving out of it all immaterial persons inferior courts ; heightening continually the Law's and facts : persons and facts not conducing at all "glorious uncertainty.” Thus, in Hunters v. Waite, to the result, and no more needing to be introdu- one judge dissertates through 18 pages; another ced to the reader, than the common soldiers or mob- through 12. In the United States v. Blakeney, men in a play need be known by name to the au- one opinion is 17 pages long, another 15, and a third dience. None of the genus story-teller more re- one page. In Yerby v. Lynch, the opinion of the quire to be taught this truth, than the species Law. Circuit judge is introduced, eight pages long; then Reporter

. It was our habit, long ago, (in pursu- those of four appellate judges, filling one, ewenty, ance of counsel given by our legal instructor,—twelve, and (again) (welve pages. The whole giren also by Mr. Jefferson to a pupil of bis, as we case occupies 57 pages : and its most stupendous see by the last Messenger,) to abridge reported feature is, that the four judges are divided in opincases which seemed important, in order to master ion, so that the decision is of no authority !* But tbeir principles more perfectly. Applying this old the paragon of cases—that, before which Whithabit to some of Mr. Grattan's cases, we have had worth v. Adams, and all others hitherto deemed most the curiosity to count the words in his reports, and prodigious, must " hide their diminished heads," the words in our abridgments. The results more in Garner's, the kidnapper's case, filling 131 pages! than verify what we have said. The reporter's It was in the General court; and involved a disnarrative in the case of Phæbe, &c. vs. Boggesscussion of the Ohio and Virginia boundary. Two (1 Graitan) consists of 423 words : the abridg. of the opinions are of 15 pages each : four others neat, of 171. In Strider vs. Reid's Adminis- are of 17, 19, 21, and 28 pages! To aggravate tralor, (2 Grattan,) the reporter's statement has the wrong of inserting this case in a book which 580 words: the abridgmeni, 185. In Patterson many lawyers are obliged to buy, it decides nothvs. Ford, (2 Grattan.) the reporter's statement has ing. For a majority of the judges agreed, we be1330 words : the abridgment, 220. In Lowe vs. lieve, in no one point discussed, except that (for Miller, Atkinson vs. Christian, and Yerby vs. reasons in which the majority differed among themLynch (all in 3rd Grattan,) the reporter's narra- selves) the prosecution could not be sustained. lites are abridged from 576 words to 260; from 500 A less grievous method than that of separate to 285; and from 400 to 167; respectively—and opinions, is when a single judge gives his opinion, might probably be further abridged with advantage. in the results of which his colleagues acquiesce. We are by no means conscious of having se-Such a single one, however, is in nearly every inlected for abridgement, cases at all more suscepti- stance infected with the prevailing evil. That deble of it than the rest. We believe them to be fair livered in Patteson v. Ford, for example, is 12 pa

ges long. We have conipressed it into less than The opinions of the court, too, are spread out to a seventh of that length, without losing, we be28 excessive length. Sometimes in Grattan, but lieve, a solitary idea that ought to be retained. noch oftener in all its predecessors, the separate Many others are similarly compressible. But in opinion of each judge is given : almost every one many-perhaps in most-of Mr. Grattan's cases, saying four-times what is necessary. This is the the admirable plan is adopted, of letting one judge very consummation of weariness, and of confusion. express the Court's OPINJON ; which, then emla the long and earnest argument by which the * It is but fair to say, however, that as the circuit judge judge seeks to demonstrate the correctness of his and the lamented Judge Stanard, who died while writing conclusion, he exhausts every topic-combats every Judges Baldwin and Cabeli, the decision is highly peradverse view—quotes, often at needless length, porting a case 57 pages long. If inserted at all, the briefest

suasive.” But surely this is no sufficient reason for reevery confirming authority. One, two, three, or abridgment should have sufficed.

VOL. XIV-33

specimens.

bodying only the views in which all the judges fully and others,) and being on his death-bed, requested concur, is of course very brief. This plan is ad- one of several neighbors who were present, to mirably carried out by Judges Cabell, Stanard, write his will. That neighbor, sitting by B.'s bedAllen, and Baldwin, in many opinions which it would side, wrote from his dictation, in the hearing of be difficult to amend by materially shortening them. three others, a will emancipating his slaves and Yet many others of this class can be shortened, disposing of his whole estates, real and personal. with advantage; some, one third-others one half— The will was then read to B., he approved it, sat and others two-thirds or more.

up, and attempted to sign it; but desisted, saying The fourth great cause of excessive bulk in he could not see-and requested the writer to sign Law Reports is the insertion of cases which ought it for him. The writer had taken the pen, and was to be omitted ; or only brief abstracts of them in- in the act of writing B.'s name, when B. swooned. serted. These are cases not decided by the num- The three other persons, at the writer's request, ber of judges requisite to make them binding, as soon afterwards signed their names with him to the precedents. Such are those in which only three will as witnesses. B. died two or three hours after of the five judges were sitting, and only two of the swooning; having done or said nothing further to three concurred in the decision ; or those where complete the will. four judges sitting, were divided iwo and two in The County Court on motion of the emancipated opinion. In this latter event, the decision appeal- slaves, admitted the paper to probate, as B.'s oned from is confirmed ; and in the former, the opin- cupative will. ion of the two judges prevails : but neither deci- The Circuit Court, on appeal, reversed that sen. sion is in the slightest degree obligatory upon any tence; and the persons claiming emancipation apcourt or person, except in that single case. And pealed to the Court of Appeals. the only effect of reporting it, is to present ques- Grattan for appellants-assigned as counsel by tionable if not false lights as to the Law. In 2d the court. Grattan, the cases of Wilson v. Burfoot, and Siter Harrison and C. Johnson for appellees. &c., v. McClannahan, jointly containing 70 pages, The court--by Allen, J. were decided by two out of three judges; while The statute (1 Rev. Code, p. 433, 553,) authorPollock v. Glassel, of 33 pages, was decided by izes two modes of emancipation : one, by will; the the full concurrence of but two out of four,-a third other, by an instrument of writing executed, aljudge dissenting as to three out of six points, and tested, and proved or acknowledged in the mode the fourth dissenting yet further. This case, we prescribed. The will intended, is such a will, so think, had better not been reported; on account of executed and proved, as to constitute by law : its tendency to produce misunderstanding about the valid testamentary disposition of properties of the law which it determines. The two former cases kind referred to in it. The mode in which a valid certainly ought not to have been reported. In 3d disposition might be made by will, had been preGrattan, the cases of the Rivanna Company v. viously regulated : it was not the purpose of the Dawson, Yerby v. Lynch, and Garner's case, statuie, by attaching new qualifications to a will amounting to 195 pages should have been omitted emancipating slaves, to distinguish between it and the two last for reasons already given,-and the a will disposing of slave property otherwise. The first because it was decided by only two judges out directions of the statute, in the clause under conof three. The propriety of inserting Sheppards v. sideration, must refer, and be restricted, to the Turpin, and Wills v. Spraggins, (57 pages,) was "other instrument” by which the owner was auquestionable, from the doubtful concurrence of one thorized to emancipate. of the three sitting judges. We have not examin- The decedent's declarations, as proved and reed 1st Grattan with reference to its cases that duced to writing, constitute a good nuncupative should have been omitted. But such abound through will; and as such, were properly admitted to probate all the Virginia Reports.

by the county court. Let us exemplify the compressibility of the la- Judgment of Circuit Court reversed, and sentence test of these reports, by abridging for our readers, of County Court affirmed. two cases-taken, one from 1st, and the other from STANARD, J. dissented from so much of the opin2nd Grattan. The former contains in the printed ion as held the paper to be a good nuncupative form, nearly fourteen pages, of which eleven are will. the arguments of counsel. These we shall omit This abridgment contains 391 words : the printaltogether. The latter, in print, contains nearly ed report, 4,100! By referring to the chief authorifive pages, of which two and a half are counsel's ties cited by the counsel, the abridgment might be arguments.

usefully enlarged. Pucse and others v. BOGGESS.

The second case we abridge, is (1 Graitan, 129–143.)

Strider v. Reid's Admr,, 2 Grattan, 38-43. (Absent, Cabell und Brooke, J.s]

Reid, having mortgaged a negro boy for debt, Boggess, in 1844, owning several slaves (Phæbe'made a wrillen agreement with Strider, that Stri

terest.

der should pay :hat debt, and that Reid should leave themselves, along with our abridgments, and with the bog in S.'s possession till a day specified (about all that we have said ; and to judge if we have three years distant,) and then refund to S. the mo- overstrained any thing—10 see if we have not more ney he had paid, and take the boy; or receive the than made good our early positions. Strike out additional sum which the boy might then be worth the cases which ought not to have been inserted, at a fair valuation, and make a good title for him and condense properly the remaining ones, and to S.: also that R. should procure an assignment would not these books be reduced to less than one to S. of the existing mortgage.

fifth of their present dimensions ? Strider paid the debt; and the mortgagee wrote We are glad to see that Mr. Grattan is restoron the mortgage an assignment of it to S., but it ing, to some extent, the sort of brief marginal abwas never delivered to him.

stract which Gilmer's and Randolph's Reports used Reid died a year or more after the day appointed to give of the points decided. But he still has for bis refunding the money, without having al- something to amend in this respect. Many of his tempted to redeem the boy: and some time after- abstracts are not so concise as they might be. wards his administrator sued in Chancery to re- The court, we believe, and not the reporter, dedeem the slave; insisting that the agreement be- termines what cases shall be reported. And when Iween Reid and Strider was only a mortgage. the court gives ever so long and ever so rambling The Circuit Court, being of that opinion, decreed an opinion, or set of opinions, in a case, we doubt that Strider should deliver up the boy, and pay a if the reporter is at liberty lo condense or remould. balance due for his hires, after deducting from them No matter where the fault lies we wish it noted, the money which S. had paid for Reid, with its in- and hope it will be corrected by whoever can cor

rect it. If necessary we would even invoke the Strider appealed.

high powers of Public Opinion and the Legislature Cooke, for appellant, cited i Wash. 14, 125; 7 to remedy the varied grievances of our Law-ReCra. 218 (or Pet. Cond. Rep. 479;) i Call 280; ports. and 2 Call 421.

If it is not already apparent from what we have C. and G. N. Johnson, for appellee, cited Coote said, let us now say, that no censure is due to our on Mortgages, p. 9 to 13, in vol. 18 of Law Li- present Reporter for the faults we have been pointbrary; 7 Cra. 218; the cases quoted in 2 Rob.'s ing out. They came down to him not only from Pract. 51; 10 Leigh, 251; and Coote on Mort- all his Virginia predecessors, but his English ones;

and they are shared with him by his brethren in The Court, by Allen, J.

all the sister states, into whose reports we have The contract of Reid with Strider was a condi- looked. The cumbrousness of Law Reports is one tional sale of the slave, at a fair valuation. The of the many follies which we have borrowed from mode of ascertaining the price was for the seller's Mother England, -along with a far greater numbenefit; which frees this case from an objectiun ber of things inestimably good. If Mr. G., in his sometimes urged, that such contracts are devices future volumes, fail to amend what it is in the re10 obtain property from needy debtors at less than porter's power to amend, we shall attribute the a fair value. Possession was delivered to the pur- failure to what seems a general truth in regard to chaser, who was entitled to retain it until the time such work—that it does not suit a lawyer of a very fixed for payment of the money, without accounting high order. The ablest lawyers have commonly for bires. The seller reserved the right to abro- made the must indifferent reporters : as the doers gate the contract of sale, by returning the money of great actions have rarely excelled in recording advanced, without interest : and if not so abrogated and celebrating them. The best, the fairest, the the contract became executed, and Strider became ablest speech that we have ever heard in any civil liable for the balance of the slave's value. It was cause, was made by Mr. G.: we shall only be error, therefore, to hold the contract a mortgage. sorry--not surprised--if such a mind as his cannot

As it appears by the commissioner's report, that be brought to do the plodding drudgery involved in the slave was worth $600 about the day appointed our beau ideal of Law-Reports. Let him rememfor Reid's refunding the $180 which Strider had ber, however, that the mightiest of quadrupeds paid in discharge of the mortgage debt, S. should cannot only launch a ship, but pick up a pin : and have been decreed to pay $420, the balance, after that the vastest of human intellects (that of Bacon) dedacting the $180; with interest from that day is eulogized by the first of living writers no less

for its power of grasping small things, when utility Decree recorded with costs: and a decree en- bade, ihan for its power to span the universe. tered according to the foregoing opinion.

Let all Reporters, let all Law-book makers, reThe case as reported contains 1,485 words: our member how incredibly, beyond any former examabridgment, 466.' Io the book the court's opinion ple, the calls upon readers’ minds are now multicontains 290 words ; in the abridgment, 197. plying-at home, in the neighboring sovereignties The reader is invited to examine the Reports and in England : how new subjects of contest, and

gages, 33.

till paid.

« PreviousContinue »