Yon list'ning nymph, who looks behind, All hail!-the Sire of Song appears, He from the depth of cavern'd woods, That echoed to his voice, Charm'd into meekness, while he sung, Dim through the midst of twilight times, Here Hannibal, in all the pride Of scowling hatred lours; With moon-light softness, Helen's charms Break through the spectred gloom; The Cynosure of Greece in arms, That blaz'd o'er Ilion's tomb. But Homer,-see the bard arise! And hark! he strikes the lyre; The Dardan warriors lift their eyes, The Grecian chiefs respire. And while his musick rolls along, The towers of Troy sublime, Rais'd by the magick breath of song, Mock the destroyer, Time. For still around th' eternal walls The storms of battle rage, Genius of Homer, were it mine And in thy sunset course to shine Reclaim from ages fled? 'Tis ALFRED !-In the rolls of fame, And on a midnight page, Blazes his broad refulgent name, The watch-light of his age! A Danish winter, from the north, Back to the deep he roll'd the waves His voice was liberty to slaves! And still that voice, o'er land and sea -Hear it, and tremble,-Gaul! That faint along the wind. They were, they are not,-all is past: I know not, but I soon shall know, For see,-on death's bewildering wave, From earth to heaven it swells, and shines And grasps them in a span. FOR AUGUST, 1807. Librum tuum legi & quam diligentissime potuí annotavi, quæ commutanda, que eximenda, arbitrarer. Nam ego dicere vero assuevi. Neque ulli patientius reprehenduntur, quam qui maxime laudari merentur. PLIN. ARTICLE 46. Reports of cases argued and determined in the Supreme Judicial Court of the Commonwealth of Massachusetts, during the year 1806. By Dudley Atkins Tyng, esq. counsellor at law. Newburyport, E. M. Blunt. p. 268. ceded them. With the exception of a few, and among these should cer tainly be named the commentaries of Plowden, and the Reports of Dyer, Coke, and Saunders, the an cient reporters are generally ob scure in their method, and frequently inaccurate in their statements and language. Loose notes from the paper books of eminent judges, or hasty sketches from the briefs of eminent counsel have too often been crowded into the publick view We can hardly be deemed severe, if with Mr. Justice Buller*, we include in this number the collections under the name of Comberbach and Noy. REPORTS of judicial decisions, when accurately made, are instructive to the general reader, and of the highest utility to the profes-with all their imperfections on sional advocate. In all countries their head,' and added to the persuch decisions are examined with plexities and the doubts of succeedpublick interest, and in those, where ing ages. courts promulgate the binding law of the land, unalterable except by the legislature, they have obtained peculiar reverence. In a free government, where the life, liberty, and property of every person is subject to the control of the laws, and of the laws only, their security requires, that tribunals of justice should not only be enlightened and impartial, but should be so deemed in the publick opinion. Nothing.can be better calculated to enforce such a belief, than a correct detail of their proceedings. Within the last half century a variety of reports of decisions, in the superior courts of Great Britain have been published, which in authenticity and accuracy are undoubtedly far above those which pre It has therefore been with pride and pleasure, that in the volumes of Burrow, Cowper, Douglas, Henry Blackstone, and the Term Reports, we have seen the modern -adjudged cases presented in a suc⚫ cinct and authentick form in nearly a continuous series. Of the vari ous methods, adopted by them, each has its advantages and its de fects; but we feel ourselves com. pelled to prefer that, which unites brevity with precision and clearness, The multiplicity of modern law In Bishop of London. Fytcbq Dom. Proc. 1783. books makes it desirable to reach the point decided with as little unnecessary labour, as possible. The United States have, until within a few years, trusted to tradition the reasons of their judicial decisions. But with wealth and commerce, and with more enlarged views of jurisprudence it became obvious, that the exposition of our statutes, and the validity of our customs should rest upon a more secure basis, than the memory of man, or the silent influence of unquestioned usage. AcAccordingly, reports have been published in many states, and of these among the best are Dallas, Cranch, Caines,and Johnson. On the merits of these we are not now called to decide; but the perusal of some of them induces us to suggest, that the insertion of the elaborate arguments of counsel at full length is neither useful nor necessary. An abstract of the principal points, and a summary view of the leading arguments, urged in their support, comport best with the design of publications of this nature. It adds no inconsiderable weight to this suggestion, that the price of law-books has already become a serious burthen to the profession.* We have heretofore had occasion to notice a volume of Reports of the Supreme Judical Court of this Commonwealth; and we announce with pleasure the present, as a continuation under the patronage of the legislature. Mr. Tyng, who has succeeded Mr. Williams in the office of Reporter, offers to the publick, in this first part, the decisions of the year 1806; and has executed the task in a manner highly creditable to himself, and we believe, satisfactory to the profession. It was to be expected, that the embarassments of a first attempt under a system not perfectly organized for the pursose, would occasion some errours, which a more distinct separation of law and fact would correct, and some decisions, which a more nice discrimination between nisi prius and bank duties, would not indulge in regular reports. But in time the novelty of the undertaking would wear away; and familiarity would render a technical language and manner, of equal ease here as in the arguments and judgments of Westminster hall. We considered therefore the Reports of Mr. Williams as entitled to a candid examination; and though not perfect in method, yet leading, and honourably leading the way to more exact and more erudite labours. -The gradual improvements, which we anticipated, appear in the volume of his successor, whose modesty has asked indulgence for errours and defects, which, if they exist at all, are neither numerous nor material. In his preface he says; Errours and defects of another class will occur to the learned reader. To the candour of such the Reporter believes, that besides the novelty of the employment to him, several other circumstances will suggest themselves as forming some excuse for such errours and defects.' The method, which Mr. Tyng has adopted, meets our entire approbation. It states the reasoning of counsel concisely, yet clearly, and the opinions of the court fully, and, as far as our knowledge extends from our own notes, very accurately. The points of the cause, stripped of extraneous cir. cumstances, are generally presented in a space, which is unexcep, tionable. The style is simple, but appropriate; and the judicious arrangement of the scholar and the lawyer is every where visible. The volume contains a considerable number of cases, some of local, and many of general interest. It is not our design to enter into a minute review of them, either as it respects their juridical soundness, or their relative importance. It is not for us to question the judgments of the supreme tribunal of the commonwealth, delivered by judges of great personal and professional respectability. They have pronounced and declared the law of the land; and from their characters and stations we should not lightly doubt the authority of principles, which have been weighed with care, and argued with solemnity. In the few remarks, which we may hazard in respect to any new cases, we beg to be understood, as less questioning the law, than suggesting difficulties of our own, which are perhaps unfounded. The decision in the case of Amory v. Gilman (page 1), by which the validity of a wager policy at common law is here shaken, if not denied, is consonant in our opinion with the dictates of sound morals and equity. It was a gratification to us to find the opinions of Mr. Justice Buller and Mr. Serjeant Marshall on this subject supported by all the weight of the bench. Should the validity of wagers generally ever come in question, we hope to hear pronounced in the words of an enlightened judge in this cause, It would seem a disgraceful occupation of the courts of any country to sit in judgment between two gamblers, in order to decide which was the best calcula Mr. Justice Parker, p. 6. tor of chances, or which had the most cunning of the two. There would be but one step of degradation below this, which is, that the judges should be the stakeholders of the parties.' In the Commonwealth v. Andrews (page 14), the court decided, that where goods are stolen in another state, and received in this, as such, the party so receiving is liable to indictment at common law, as a receiver of stolen goods. The liberal spirit which dictated this decision upon principles tending to cement the polity of the Union, will meet, we trust, the attention of our sister states. The case of Brooks v. Dorr and another (page 39), which decides, that a sailor is entitled to his wages, notwithstanding a capture, in consequence of which he is separated from the vessel, if the vessel afterwards proceed and earn freight, is argued by the judges at great length, and with great ability. It has shaken the case of the Friends, Bell. 4 Rob. Adm. Rep. 143, which had been previously questioned in Beale v. Thompson, 4 East. Rep. 560. At the close of his opinion (page 50) an observation is dropped by the chief justice (Dana), which we fear we do not understand. He says, It will be understood, that no decision is made by this judgment, of a case, in which it should appear, that seamen had been hired to supply the place of the Pltff. within the time, for which he demands wages. That is not the present question, and it will be time enough to decide it, when it is regularly before the court.'-On recurrence to the state of facts it appears, that the captain actually hired other seamen to complete the voyage, and during the time for which the plaintiff claimed, and is allowed wages by the judgment in this case. In the case of Benson v. Swift (page 50), we observe the case of Mitchill v. Neal, Cowp. 828, cited by the counsel. That case was expressly over-ruled in Burgess v. Freelove, 2 Bos. & Pul. 425; but by some may be thought in some degree restored by English v. Purser, 6 East. Rep. 395. In May v. Calder (page 55), it was decided, that the lease of an infant's land by his father, as natural guardian, is void. The expressions used by the court are very general; but we presume that they are to be referred to the facts of that particular case. In 1 Wooddeson, 459, 460, and authorities cited in note (4.) it is stated, that a guardian by nurture may at least make a lease at will. If it did not savour of too much nicety, we should in this case call the father guardian by nurture, rather than by nature, according to the distinction in Hargrave's note on Co. Litt. 88. b. note (13). In Richardson and another in error v. Noyes and another (page 56), will be found a very elaborate opinion of the court, delivered by Mr. Justice Sedgwick, in which the doctrine of executory devises is discussed with great learning. At the close of it, we are furnished with a note of the argument of Mr. Parsons, of counsel for the defendants in error, which has been truly declared by the court to be very ingenious and very able. In page 77 occurs a memorandum of the resignation of chief justice Dana, and we can truly say, in the words of the reporter, The remembrance of the impartiality, dignity, and learning, exhibited by him, will be long cherished by those, who have been concerned in the business of this court, while he held a seat on the bench. The Hon. Theophilus Parsons was ap pointed as his successor. May this gentleman, so long the distin guished ornament of the bar, for many years continue on the bench, et dulce decus et præsidium. The case of Perkins v. Burbank (page 81), on a question of special pleading, we admitted with some hesitation; and had prepared a note of some length on the sub. ject. But knowing, as we do, the peculiar eminence in this branch of law of the chief justice, who delivered the opinion of the court, and considering him entitled to the eulogy of the late lord Kenyon on baron Comyns, that he was the ablest pleader of his day in all Westminster hall,' we have feared a fallacy in our view of the case, and have suppressed it.* In Pearsall and others v. Dwight and others (page 84), is a decision in conformity with the principles in Nash v. Tupper, 1 New-York Term Rep. 402. As it is of considerable importance, and strongly illustrates the doctrine of the ope ration of the lex loci on contracts, we shall quote in a subsequent * Lest however our doubt should appear wholly idle, we would refer to Webber v. Twill, 2 Saund. 227, Hamphreys v. Churchman, B. R. H. 289, (this is usually cited, Cases in K. B. 7 to 10 Geo. II. temp. Hardwick), Free. man v. Hurst, 1 T. Rep. 40; 1 Tidd's Pr. 3d edit. 637 note (i); Lawes on Plead. app. 238 and note (2); and the note of serj. Williams in Manchester v. Vale, 1 Saund. 28, note 2; as shewing double, contain separate answers to dif that a replication may, without being ferent parts of an entire plea, provided the whole form but one complete answer to the plea, and one entire support of the declaration; and that where does not contain an answer to the plea, the plea is entire, and the replication as it respects some counts in the decla ration, such replication is bad." |