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construction; and the interpretations and constructions adopted by the courts are quite as important as the laws and contracts that give rise to them; they are in fact a part of the law, and it is as requisite that they should be fixed and made known, as that laws should be made and published. A people that has not the means of being informed of the decisions of its courts, and the reasons and principles of those decisions, may in truth be said not to have the means of knowing the laws by which they are governed. And the practice of publishing reports of adjudged cases is the only way of establishing these constructions, and interpretations, upon a secure foundation in the reasons and principles on which they are grounded, and in precedents, or in other words, recorded and recognised usages.
There are the same reasons for publishing reports of adjudged cases, as for publishing laws, and no expense incurred by a government is better bestowed, or goes more directly and effectually to promote the great and fundamental purposes of civil institutions, than the encouragement given for the publication of such reports. We were accordingly surprised at the difficulty recently made in the legislature of Vermont, in voting a sum of money for this purpose, and at the very small amount, (one hundred and fifty dollars if we recollect rightly,) that was deemed sufficient. It is still more remarkable, that some of the states give no encouragement at all to the publication and distribution of reports of judicial decisions, and in fact have no such reports. Others depend upon the voluntary labors of such lawyers, as may be disposed to undertake reporting, from hopes of reputation, and, in some instances perhaps, of a little profit, in respect to which the most modest expectation is in great danger of disappointment; or, if it be not disappointed, the profits afforded in our market by a publication of this description are in general so trifling, that if the reporter obtains for his time and labor, a recompense equivalent to the wages of a common day laborer, he owes the public a debt of gratitude for their liberal patronage. But this is a very precarious way of supplying the community with the means of knowing by what laws and rules of conduct they are governed; and to depend upon it, is like a man's neglecting to provide for his household, trusting that a neighbor, induced by charity or some other
motive, will supply his neglect. Such a family has the prospect of being ill supplied, with the chance of being starved.
The office of a reporter is highly responsible and intensely laborious, and deserves a liberal compensation. It is the practice in the Massachusetts, as it is in the United States, and in many, and we believe most of the State courts, for the judges to give written opinions on the most important and difficult questions brought before them. The practice appears to be otherwise in most of the English courts, which gives the judges sometimes opportunity, and sometimes no doubt, occasion, to say, that the reporter must have mistaken the language of the court. The only objection to the practice of giving written opinions is the additional labor it costs the judges; but the manual labor of writing out an opinion is very trifling in comparison with that of making it up, and choosing and arranging the authorities and reasons on which it is founded; as every lawyer experiences as often he has occasion to give a written opinion. This inconvenience does not, therefore, outweigh the reasons in favor of this practice, inasmuch as it secures a more thorough and laborious consideration of questions on the part of the court, is an additional guard against crude and hasty opinions, and it checks the expression of broad and general propositions, under which indolence and inability are always ready to shelter themselves. Lord Ellenborough somewhere recommends the perusal of the earlier decisions upon a question then before the court, for the purpose of purifying the mind from the generalities' that had crept into the subsequent cases. These generalities' make it very easy to decide the pending question, as they afford a great space within which to bring it, or, to use a logical term, they furnish a very comprehensive major, which being once assumed, may be easily shown to include the minor, or particular question before the court; and the premises being conceded as a лov or, the conclusion is irresistible. But very soon another case will be offered to the court, which comes literally within this 'generality,' and yet too plainly requires a different decision. Accordingly this case is decided upon its particular circumstances,' or is considered to be an exception, and then another exception follows, until at length you have nothing but exceptions, and the rule disappears. The greatest talents,
learning, diligence, and caution cannot secure judges from occasionally laying down propositions in too broad terms. 'The attention of the court,' says Mr Justice Jackson, 'is naturally drawn particularly to the case before them; and though all that is said by them may be correct as applied to that case, yet when applied to another not then under consideration, it may, if adopted literally and in its whole extent, lead to results which the court did not anticipate, and would not have approved.' Whatever, therefore, puts the court on its guard against uttering propositions that lead to such results, is of great importance, and the practice of giving written opinions, to be published as a sort of testimony in perpetuam memoriam, is the most effectual guard for this purpose. And a reported opinion of a court ought to be written, or at least approved, by the judge to whom it is attributed, for the purpose of giving to it its just authority. And all the reasons in favor of opinions prepared in writing, by the court, and indeed, in favor of reporting opinions at all, may also be urged in favor of giving the name of the judge by whom the opinion is drawn up. Except in matters of practice, and the most distinct and insulated cases, in which the point decided, and the grounds. and extent of the decision, cannot possibly be mistaken, we always regret to see per curiam prefixed to the opinion of the court.
Though the practice of giving written opinions upon all important questions abridges the labor, and still more the responsibility of the reporter, yet there is quite enough left for him to do and to be responsible for. He must, in the first place, select the cases to be deemed of sufficient interest and importance to publish, and those in which the facts, and grounds of the decision can be definitely and satisfactorily stated; and as he cannot make this selection beforehand, he is under the necessity of taking full and minute notes of all the cases argued. In many cases brought before a court for decision, the law of the case is so blended and confounded with the facts, that it is not possible for the reporter to extract from the whole case any precise definite point decided, or ground of decision. If the court assigns many distinct grounds of decision, without saying how far their opinion is determined by each, or whether any one ground is conclusive, there is nothing to report. Very often a decision turns wholly upon VOL. XX.-No. 46.
a construction of facts, that are not likely ever to recur again in the same combination. It is in many instances worth while for the parties to present a question to the court, which yet is not so important and of such general interest, as to be a proper subject of a report. A reporter must of course depend upon the counsel and the court for his materials, but it can hardly be expected that the cases brought before a State tribunal are so stated and argued by the counsel, and so fully investigated by the court, and at the same time of such importance and interest, as to make it expedient to report them all. Provided the reporter exercises his own discretion, without too great influence of the court, in selecting cases to report, a publication of a third, or half, or at most two thirds of the cases argued and determined, is quite as useful as to publish the whole number. To select this third or half of the cases requires a very attentive examination of them all. To make a good selection of cases, in which not any of importance are omitted, and not any that would be superfluous, are reported, and to present perspicuous and satisfactory statements of the facts and the arguments of counsel, requires not a little talent, discrimination, labor, legal science and skill; and in all these respects Mr Pickering's volume is, as far as our information extends, entirely satisfactory to the profession, and gives him a just title to the reputation of an able reporter. We have not noticed any case in the volume which is not worth reporting. The cases are stated with great precision and perspicuity, and we have not met with an instance in which it was necessary to read the case a second time to be possessed of the facts. When one reads or hears a story well told, or a statement of facts well made, nothing seems more easy than to tell the story or make the statement, and yet it is a thing in which few people succeed. A lawyer has frequent occasion to regret the rareness, of this talent, when he finds himself obliged to grope his way to a knowledge of a case in an obscure wilderness of facts, spread over some three or four pages, without any arrangement, full of circumlocutions and repetitions, and presenting all together, not a case, but only the rude, undigested materials of one. The profession owes its thanks to a reporter who gives his cases in a succinct, lucid manner, and, at the same time, without omitting what is material; for he saves
them from the loss of money in purchasing a mass of surplussage, and from the loss of time in bringing together and arranging the disjuncta membra of the cases.
We have not found, in this volume, any instance of another fault sometimes to be met with in books of reports, where the reporter gives all the facts with sufficient minuteness, and hands over the subject to the judge, to begin where he began, and go over the whole story again; or at least as much of it as was necessary to have been told at all. We do not mean to imply that the excellence of a report is inversely as its length; wherever a material circumstance is omitted the report is useless, because it is impossible to know what was decided, and it is worse than useless, because it may lead to mistakes of the law, and will be perpetually cited in all cases of any affinity to it, for it will fit one almost as well as another. Not a few cases of this description, more especially of those at nisi prius, have been bandied at the bar, through all the successive generations of lawsuits, and may always continue to be brought into service to increase the array of authorities, and lend support to lame cases; for they cannot be confuted or overruled. In all cases of doubt, as to the materiality of facts, it is safer to err, if at all, by stating, rather than by omitting them. But there is no excuse for mere repetitions, and we have not observed any instance in which Mr Pickering needs any such excuse.
One of the most difficult parts of a reporter's labor is that of reporting the arguments of counsel. Some have doubted the expediency of giving much space to this part of a report, saying that the case and the opinion of the court present all that is decided, together with the authorities, and the grounds of the decision. In many cases, in some reports, as the Modern Reports and those of Dallas, on the contrary, the arguments of counsel are given, and the opinion of the court omitted; the reporter tells us that such and such were the arguments of counsel on each side, and such was the decree of the court, and leaves the reader to conjecture the grounds of the decision. The opinion is certainly to be preferred to the arguments, if one only is to be given; but it is better to report. both where the question is difficult or important, and where there are both to be reported; for cases are sometimes submitted without argument, and sometimes decided by a naked