1832.]

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of April, 22 Jac.; whereas Winch was a judge of the Common Pleas from 9 Jac. and died before some of the cases there reported were adjudged.' Preface to Benloe & Dalison's Reports. The last cases in this book were decided, Hil. 22 Jac. Upon the 4th of February, the same term, Sir Humphrey Winch, one of the Justices of the Common Pleas, a learned and religious judge, died.' Cro. Jac. 700. The cases in Winch are in general well reported.' Per Lord Kenyon, 6 D. & E.

441.

Yelverton's Reports. 'Justice Yelverton's Reports contain matter worthy such a grave judge and learned publishers.' Phillips' Studii Legalis Ratio, (3d ed.) 120. His reports are among the best of the old authorities.' Per curiam, 7 Johns. Rep. 164. 'The reports of Yelverton are a small collection of select cases in the latter part of the reign of Elizabeth and the first ten years of the reign of James. He was a judge of the C. B. and one of the most eminent lawyers of that age, and which was truly the Augustan age of the old common law learning.' 1 Kent's Com. 451.

ART. IV. MISTAKES OF THE WESTMINSTER REVIEW ON THE SUBJECT OF AMERICAN JURISPRUDENCE.

American Law Journals - Change in American Law Books— Addresses to the Bar-Number of Judges - Independence of the Judges.

THE number of the Westminster Review for April last, has an article entitled American Law Reform,' to which the titles of Kent's Commentaries and Dane's Abridgement are prefixed; which we are pleased to see, as it is another instance of the attention attracted by our jurisprudence in England. The article speaks very favorably of our jurisprudence, in respect to which, however, the writer has fallen into some errors; and he might easily have treated some of his topics more fully and specifically, as well as more accurately, by recurring to some of the previous numbers of this journal. As the late Jeremy Bentham was among the subscribers to the Jurist, and a full set is probably to be found in his library, and the editor of the Westminster Review is one of the executors of Mr. Bentham's

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[Oct. will, he probably has within his reach, the means of correcting some of the errors of the article in question. In addition to the means supplied by our journal itself to foreign jurisconsults towards obtaining general information on the subject of American jurisprudence, we propose, in a future number, to give a catalogue raisonné of American law books. We are the more prompted to this, as we have frequently heard the complaints of European jurists, through their correspondents here, that they cannot readily find out, and supply themselves with, the law books which have been published in the United States.

It is remarked in the article referred to, that 'Law Magazines, full of enlightened learning, are published in several of the States.' This is an error on the part of the writer, in reference to the present time, as there is not now, we believe, any other work of this sort published in the United States, except the American Jurist.

The writer says, 'Digests, of which that of Mr. Dane is a valuable specimen, abound in America.' We believe that no other digest, similar to that of Mr. Dane, has been published in the United States. There are, it is true, numerous digests of reported cases, but no general body of American law, resembling either Bacon's Abridgement, or Viner, or Comyn's Digest, had appeared before Mr. Dane's work. Nor has any original work of the kind been published since.

Before the publication of Dane's Abridgement, the want of such a work was mostly supplied by American editions of Bacon, with notes of American cases. In 1824, 5, and 6, Mr. Day, the reporter to the Supreme Court of Errors in Connecticut, put out an edition of Comyn's Digest enriched with elaborate notes of American cases. Until within the last ten years almost all the books of an American lawyer, excepting the statutes, books of forms, and reports, were American editions of English treatises with notes of American statutes, decisions, and practice. And these answered quite well while we were forming our laws. But the body of our own laws has been enlarged by statutary provisions, and the transfusion of the doctrines of the common law, and the Roman, as far as their elements could be assimilated to those of our own; and the proportion of indigenous law begins to preponderate. Accordingly our elementary treatises and abridgements are now appearing in the form of original

American works, the great mass of which is composed of the results of our own legislation and judicial decisions, enlarged, however, and completed into a system, by incorporating as subsidiary and suppletory, the general principles of the universal law merchant, the doctrines of the civil law, particularly on the subject of contracts, and the principles and decisions of the English common law, on points not yet made the subjects of legislative or judicial decision in the United States. Formerly our law books consisted mostly of the materials out of which we were to make our laws, with the comparatively small addition of what had been sanctioned by our courts and legislatures; a large portion of the books of a lawyer's library consisted of materials wholly foreign to the spirit of our institutions and the condition of our society, and, consequently, wholly useless to him. The state of our jurisprudence being now so materially changed and improved, we can repay, in part, the great debt we owe English jurisprudence; for English jurists will find, by examining our digests and treatises, that in those branches of law of which the doctrines are common to the two countries, especially the commercial law, our courts have followed out those doctrines to a great variety of cases and applications, not as yet comprehended within the range of the decisions of the English courts or the investigations of English jurists. Our jurisprudence is more especially interesting to the English legislators and jurists at the present time, when so great efforts are making in England for a reform of their laws, since, on many of the subjects involved in their discussions, we have already made the experiments for them. The reason why they do not yet avail themselves of all the advantages of these experiments is partly that the English jurists, with a few exceptions, have heretofore been proudly and ostentatiously ignorant of all other laws than their own; and when their statute books and judicial decisions throw no light upon a case, have preferred 'an obscure sojourn' in that 'hubbub wild' of juridical chaos called custom. This stat pro lege principis voluntas of the lawgiver custom, is the greatest hindrance to the progress of English juridical administration. If in every difficult question you resort to an oracle who can answer and decide without reasons, there is an end of all system and science. There are, undoubtedly, many questions that can be decided only by cus

tom. Even legislative acts are subjects of custom, since the meaning of the words in which they are expressed is determined by this authority. A contract must be construed in the same way as far as it depends upon the signification of its language. So, wherever a usage is so uniform and general, and of so frequent occurrence, that every party to a contract can be justly presumed to be apprised of it, in fact, just as he must be presumed to know the meaning of words used in a written instrument, the authority of custom should, no doubt, be conclusive, unless it is inconsistent with some acknowledged and well established principle of law. So, again, if a case coming within the common expression of a doctrine, can yet be clearly distinguished from those to which the doctrine is ordinarily applicable, and, upon the spirit and reasons of the doctrine, can be shown to be an exception, the excepting it from the rule is nothing more than acknowledging that you have no short mode of expression which will give the precise meaning, force, and limits of the rule. The definition of the rule is inadequate, and requires to be explained and modified, and limited within certain conditions. This is true of many rules in law as well as in the moral and prudential maxims of conduct. But in these cases the first question is, how far will the spirit and reasons of the rule carry you? Unless it is followed to this extent if you abandon it short of this ultimate point, and hasten to the shelter of some authority in the year books, or the exchange, you will, to adopt an expression often used by Judge Reeves, 'mar the symmetry of the law.' From this mode of proceeding a series of decisions will follow, which it will be impossible to reduce to any system. In short, in this respect, there is no administration of rules which deserve the name of laws. It is nothing more than the stat pro lege voluntas, of the judges, jury, or witnesses. In this matter of obstinately clinging to principles, and exhausting investigation before having resort to the authority of a court, or that of the witnesses who testify to certain generalities and impressions about usage, for the grounds of an arbitrary decision, the principal courts of the United States are, we think, far in advance of those of Westminster Hall.

The article states that a very interesting body of papers in the nature of the readings of our old lawyers are given at intervals in the addresses to the circuits by such men as Mr.

Justice Story, the very learned annotator to the two American editions of Lord Tenterden's book on shipping.' We presume that this passage was suggested by Mr. Justice Story's address to the Suffolk bar and published in the first number of the Jurist. It is the custom of the bar in some counties to hold an annual festival, at which a discourse is delivered by some member previously appointed for the purpose. The subject and character of the discourse depends wholly upon the election of the person who makes it. Many able and learned addresses have been delivered on these occasions by distinguished members of the profession, but they are most frequently of a general, discussive and popular cast, little resembling the readings of the old English lawyers. Perhaps a discourse upon some specific subject, as upon some legal doctrine, or some statute, or series of statutes, upon the same subject matter, somewhat after the model of the readings at the Inns of Court in ancient times, would be the most appropriate, as well as the most instructive and interesting to the auditors. But this has not hitherto been the plan of the addresses delivered on these occasions in Massachusetts. Whether a similar custom prevails in other States, and, if it does, what is the general character of the addresses delivered, we are not able to say. But we think we may safely say that they have not been so numerous and of such a character as to make a very conspicuous figure in the national jurisprudence.

The Review has the following remarks upon our courts. 'The complete separation of the office of the higher judges from the legislative and executive powers, is a more striking excellence in the United States since their Independence. In the adjoining English colonies, the greatest inconveniences arise from perseverance in the old practice; and at home many evils are daily experienced from the political character of the chancellor, of some of the chief judges, and of the recorders in great towns. The error is however still unchecked in most instances in America, of having several judges at each bench; especially in the Supreme Court at Washington, which is composed of seven members, of whom four must be generally present. At the same time the rapidly improving system of reporting the causes, by stipendiary as well as by voluntary reporters, and an extending practice of requiring all judges to assign reasons in writing