THE

BOSTON REVIEW,

FOR

MARCH, 1810.

Librum tuum legi, et quam diligentissime potui annotavi quae commutanda, quae eximenda arbitrarer. Nam ego dicere verum assuevi. Neque ulli patientius reprehenduntur, quam qui maxime laudari merentur.

Plin.

ARTICLE 6.

Reports of Cases, argued and determined in the Supreme Court of Errours, of the State of Connecticut, in the years 1805, 1806, and 1807. By Thomas Day, Counsellor at Law. Judicia in quibus non de facto, sed de aequitate, ac jure, certetur.—Cicero. Vol. II. Hartford. Printed by Lincoln and Gleason, 1809. 8vo. pp. 592.

THE gentleman, whose name appears on the above title page, is already known to the publick, as the compiler of the first volume of Cases in Errour, and as editor of the Nisi Prius Cases of Espinasse. The former of these works was undertaken under several disadvantages; but, on the whole, is executed in a creditable manner. In his notes and additions to the latter work, Mr. Day has given respectable proofs of industry and learning. This edition indeed is what it purports to be," an improved edition," and, in the end, will probably supersede every other.

The court, whose determinations are here reported, consisted of the Governour and Council, commonly called in that State the Upper-House. The members of this branch of the legislature, like the English House of Lords, constituted ex officiis the court of dernier resort. This circumstance, together with the additional one, that every individual of this body depended for his office, on the annual choice of the sovereign people, would not naturally inspire us with a very high respect for its decisions as a court of law. A stranger unacquainted with the habits of the people of Connecticut would conclude, that a tribunal, so constituted, would be more likely to be filled with popular favourites, than learned ju

rists; and that their decisions would exhibit little of uniformity or wisdom. Such a conclusion in the case under consideration would be very erroneous. A slight glance at the names of those, who have successively held places in this court (a list of which is prefixed to this volume) will satisfy all who know any thing of publick characters, that it has been deficient in neither talents, nor learning. That there were no defects in the constitution of this tribunal, considered as a court of law, we shall not pretend to determine; especially since its judicial powers have been taken away by an Act of the Legislature of Connecticut. But, judging from the specimens before us, we believe, that its decisions, with very few exceptions, evince a correctness of judgment, and, what is more rare in some parts of our country, a reverence for the sound principles of the common law, honourable to the administration of justice in our sister State. It remains more particularly to examine the manner, in which the task of reporting these decisions has been executed.

From the end and design of works, like the present, are to be collected the rules, by which their merits are to be ascertained. We are not to look into a volume of law reports for specimens of fine writing. The dry details of special pleadings admit not the embellishments of fancy and classical diction. They are rarely resorted to by any but professional gentlemen, and by them generally for instruction, or direction in business, and not often for amusement. Almost the only important requisite of a report is that the precise point decided, and the grounds of the decision be made plainly to appear. Accuracy and fidelity therefore are nearly the only indispensable qualities in a reporter. Conciseness and brevity are more desirable than copiousness in his statements; in his language, perspicuity and precision are more to be studied than elegance. These rules however are to be received with some limitations. We would not have our reporter omit any matter of fact, however slight, connected with a question decided, or necessary to raise such question, nor any point in the argument, which possibly might have influenced the decision. Nor, in his language, would we have him exhibit the aukward stateliness and formality, so much affected, and, in a manner, appropriated by the ancient sages of the law.

The report of a case may be considered as divided into three parts: The statement of the question agitated, the

arguments of Counsel, and the reasons and opinions of the Judges. The marginal abstract, though not a part of the report, is an indispensable adjunct. Here the reporter's talents are more tasked to exhibit his perspicacity and precision than in any other of his labours; and in the volume before us, we are satisfied with the result.

The statements of cases in the volume under consideration are undoubtedly given with perfect accuracy. Indeed it could hardly be otherwise; for the compiler had the record before him in every instance from which to extract them. It ought to be added nevertheless, that he has shewn considerable judgment in the arrangement and disposition of facts. Indeed we know not, that in this part of his work he has left any thing to be desired.

A part, which required more attention and labour, as well perhaps as more professional skill, was the reports of the arguments at bar. In this branch of his work, a reporter is liable to many oversights and imperfections, unless he receive liberal aid from the counsellors whose arguments are stated. Volat irrevocabile verbum. Who can follow a rapid speaker or subtle reasoner through all the turns of his argument in a complex and difficult case? In this part too, after the materials are collected, much room is left the reporter for the exercise of discretion. Shall he give a more compressed, or á more extended view of the argument? What exact proportion ought the importance of the points resolved, in a given instance, to bear to the attention bestowed upon them? These are questions, which must perpetually recur, and which will be differently decided by different men.

Perhaps the compiler of this volume will be most frequently thought to err, by being unnecessarily diffuse; and yet, we think, in some of his cases, he is liable to a different criticism. It will hereafter be nearly the same thing to those, who ought to be guided and governed by these decisions, that the questions determined were not argued at all, and that the arguments upon which they turned do not appear. In either case, it can never be ascertained, that the point ruled was fully considered. Lord Mansfield remarked, that, "what is determined upon solemn argument establishes the law, and makes a precedent for future cases; which is not the case of questions agreed by consent of parties, or never litigated."* In our judgment

* 4. Burr. 2545. Rex v. Wilkes.

therefore a full view of the substance of arguments ought to be presented in every case of importance. All embellishments and unnecessary amplifications ought to be rejected; but the frame and sinews should be retained.

We are therefore generally pleased with the abundant materials, which our Connecticut reporter has collected and arranged in this volume. In a few instances, perhaps he might have advantageously retrenched somewhat from this part of his work; in others however we think he has not been sufficiently copious. The same justice is not always done to counsel on different sides of the same case; an example of which fault is presented in Turner v. Hubbell, p. 457; nor is there that perfect uniformity in the execution, which might have been desired. On the whole however, we acquit him of frequent or gross errours in these particulars; and if, in a few instances, he is liable to censure for what he has omitted, still in many he deserves commendation for what he has done.

For the reasons of the court, and perhaps for the language in which they are drawn up, he ought not to be considered as at all responsible. The deliberations of the Court of Errours were never publick, and the grounds of its decisions were to be looked for only in the written reasons lodged on file, in the appointed office. This we consider as a striking fault, if not in its constitution, at least in its practice. It was however intended to have been remedied by a provision in a statute of that state, (which is now before us) requiring "of the Supreme Court of Errours to cause the reasons of their judgment to be committed to writing, and signed by one of the judges, and to be lodged in the office of the clerk of the Superiour Court." Had the court performed the duty here assigned it, the grounds of its determinations could never have been misunderstood, or falsely reported. But this, it seems, was not always done. Unfortunately, their honours were judges in a matter, that concerned themselves, and gave a construction to this clause of the statute rather too favourable to indolence. They determined that it required of them to give their reasons only in case of reversal. Hence it is, that in many of the cases reported in this volume no reasons at all are stated, and that in a few (as, for example, in Bostwick v. Lewis, p. 447.) the point decided can only be conjectured.

* Statutes of Connect. p. 205.

Wherever the opinions of the court are given at length, they appear in general to be drawn up with sufficient ability. In several of these we trace the pen of a great lawyer and venerable Judge, since dead, the late Chief Justice Ellsworth.

There is one case, which, from the elaborate discussion it received at the bar and from the bench, has particularly attracted our attention. We allude to the case of Fitch v. Brainard, p. 163. The question, as stated by the court, was, "Can a feme-covert legally devise, or dispose of her real estate by Will?" The court determined against her power; thereby reversing a decision of the same court made in the year 1788, in the case of Adams v. Kellogg,* which decision had been considered in that state as settled law, and had been acquiesced in for many years. Numerous titles must undoubtedly have been shaken by this determination, had it not been for the statute limiting appeals from courts of probate. † This surely was going a great length. Had the former decision been even erroneous, which, we confess, does not so clearly appear to us, we think the remedy ought to have come from the legislature. The greatest of all evils is the terrible confusion and uncertainty, which conflicting decisions of the highest legal tribunals introduce, especially when they concern titles to real estate. The legislature of Connecticut have at length interfered, and made a statute enabling married women to devise their lands. But as this statute is not declaratory, it leaves the question still open in all those cases of devises executed prior to the statute, where appeals are not barred by lapse of time.

One fact, which may serve in part to account for this singular revolution of opinion in the court, will be discovered by a reference to Kirby's Reports. It will there be seen, that Judge Ellsworth gave an opinion against the power of a feme-covert to devise,in the case of Kellogg v. Adams, he then being one of the Judges of the Superiour Court. When the case of Fitch v. Brainard came to be decided, he held a seat in the Supreme Court of Errours. How rarely do even great men yield an opinion once avowed!

Kirby's Rep. p. 195.

It seems that Courts of Probate have jurisdiction of real estate, in Connecticut, and hence their decrees do not stand on the same ground as those of the prerogative Court in England. In Connecticut all questions between the heir and devisee, where the Will is approved, must be tried on appeal.