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grammarians; and seeing that the meaning required it, and not knowing how otherwise to reach it, have changed not a letter only, but a word, and substituted one directly contrary; as, or, for and; and vice versa; and, for or. That is read the will so. I have no objection to this, but as it savours of what is arbitrary, and has the appearance of doing violence to language. It is something like the house-wife challenging her bag at the mill, P for John, and R for Pat

terson.

Were judges to pursue the strict letter of a statute, they would have less trouble. For it does not require much understanding to distinguish A from B. And this is according to the letter.

I have no idea that tautology, and multiplying terms contributes to perspicuity, and there is danger when it is undertaken to enumerate, that something may not be embra ced as in the British parliament, where the word person was used in the bill, and a member moved an amendment, person, or persons; and another thinking to carry the matter still farther, and make sure, doubly sure, made a farther motion to add person, or persons, he, she, or they. Another in order to shew the danger of undertaking to specify particulars, concluded with moving that it be he, she, they, or it; for there might be an hermaphrodite, in the case.

The truth is, that hæret in cortice, qui hæret in literæ ; he sticks to the bark who sticks to the letter; and it is only by penetrating through the rind, to the substantial wood, that the meaning of an act can be ascertained.

3 U

Act of Assembly, March 19th, 1810, prohibiting in courts of justice, the reading, or quoting British precedents subsequent to 4th July, 1776.

THERE is a British statute of an old date, I cannot immediately turn to it; and I cite from memory, prohibiting the judges from suffering themselves to be feasted when they go the circuit. The words are, "shall take no gift of any one, with the exception of food, or drink, and of this very little." Under this minimum, or very little, I presume may be comprehended what was merely complimentary, on the score of respect, or friendship; as, in our times the libation of a glass of wine, or a dish of tea with the female part of the household; but no formal invitation to sup, or dine or any thing like what might be called an entertainment. This statute must have been founded on some experience that such hospitalities operated as a species of bribery; for it is classed with the accepting gifts; and, doubtless, it is but a delicate mode of conciliating a pre-judgment. And hence it is that compliments to sup, or dine, are usually given to those whom we mean to conciliate, or pre-dispose. It was a paradoxical apothegm of the great Franklin, that the best way to gain a man, was to take him by the throat. And, when Aristippus was reproached by his brother philosophers, because he bent his knee when he presented a petition to Dionysius," what can I help it," said he, "if that man has his ears in his feet ?" In the same manner it may be said by one who has a matter pending in court, and entertains, "how can I help it, if I know that judge, to have some part of his hearing in his throat."

But would it not have been sufficient for this British statute to have prohibited only the accepting cards to sup, or dine, from a suitor in court? How could a judge ascer tain whether the person giving the invitation was a suitor, not having at hand the court docket to evolve, or inspect; and it would be indelicate to ask the person, offering himself as a host," pray sir, have you a cause in court ?" Besides, it might be rather with a view to a cause that he intended to

bring, or expected to have brought against him, than to one pending, that the invitation was given. He might think of the rule of prudence, "Cast thy bread upon the waters, and thou shalt find it after many days." A cunning stager conscious to himself of a misdemeanor, or a felony committed, might apprehend an indictment, and be willing to save his bacon in one sense, at the expence of it, in another. Or to make an offering, not "of a turtle dove, and two young pigeons" to the priest; but of a duck, or a goose to the judge.

But, to say nothing of a suitor, might not something be done in that country of roast beef, through the medium of a barrister, or counsel in the cause, who might find out the weak side of a judge; whether he was to be gained by flattery to his understanding; or, deditus ventri, by food to his corporal taste. The exordium of an orator, according to Cicero, ought to be, "reddere auditorem docilem, attentum, benevolum." And were counsel to blame when they had discovered, that at least the temper of a judge might be soothed by using the means put in practice by the hero of the Æneid in his descent to Elysium, to soothe the centinel at the out-post?

Melle soporatam, et medicatis frugibus offam

Objicit

Oiling the springs of a machine makes it run smooth; and wine will put a judge in good humor; though the danger may, be that he will be put into too good a humor with one counsel at the expence of another; or at least of the cause which he supports.

It is not in the natural order of things, for men in authority who have discipline to support, to become guests; much less who have controversies to determine between man and man. There is a repugnance in a mind of sensibility in deciding against your host, if you can help it; and you will at least have a wish when his cause comes to trial, that it may turn out good.

But the principal obligation is the enabling the unworthy to derive character from the station. For though the judge himself may be neither pleasant in his manners, nor respect

able for his understanding, yet, in contemplation of law, he is supposed to have at least legal knowledge; and his station carries with it the majesty of the people; and it is not proper that a knave should have it in his power to say, I had a judge, or the judges to dine with me. And how can judges on the circuit know, in every case, what there may be against the man that appears to entertain them.

But, for their own sakes, on account of regimen and command of time, if for no other consideration, the judges will find it most advisable to decline invitations. I do not think, therefore, it will be necessary to provide by law, as in England, at an early period they would seem to have done.

But of this enough; I go on to speak of that which was my main object, the muzzling, not the mouth, but the mind of a judge, in prescribing to him that he shall not take a nip of information come from whence it may. What would we think of a British statute prohibiting the quoting precedents of our courts? It may be said, such an act of parliament would be unnecessary; for, my lords the judges of the English courts, are too self-sufficient to admit to be read our decisions. There may be something in that; but, they would be startled at an act of the legislature prohibiting the reading these. A liberal and enlightened chief justice of one of their benches would say, do we not hear occasionally read to us, the laws of other countries, or the decisions of their courts so far as they can throw light upon a matter before us; and why exclude the reasonings of a people, or the decisions on a law that is common to us both; nay even, why exclude reasonings on their acts of Assembly enacted since our separation, which have an analogy to our statutes made since or before?

I do not know whether the judges would permit a learned serjeant to quote a decision made in Pennsylvania, if it had a bearing on the point, as shewing what our reason was; yet, I should think it strange if they did not permit it, when it is pretty evident that they read these themselves; and what is more, profit by them. That they read, at least, the New York reports would seem to appear from their

backing out, to use an American phrase, on the doctrine of the conclusiveness of a sentence of a foreign court of admiralty. This doctrine was first shaken in the New York state, by a decision of the high court of errors and appeals ; and followed up in Pennsylvania, on my part, in the supreme court; and afterwards in another case, by judge Cooper in the high court of errors and appeals. If lord Ellenborough had not read the reasoning in these cases, or heard them read, he appears at least to have adopted a greater liberality in his way of thinking on the subject than other judges, who had sat on the same or other benches before him. See 1 Camp. 418. Park. 495. 6th edition. And 1 Camp. 429. Park. 619.

On these and the like grounds, I incline to be of opinion that the act in question, 19th March, 1810, ought to be repealed.

Were it not that my sentiments are known as having no overweening attachment to British precedents, save so far as they carry with them natural, or legal reason, I should be more embarrassed in objecting to this act. But, were it not that I should be unwilling to enter into a contest with the legislature, where public opinion, or prejudice is on their side, I might be disposed to question the constitutionality of this act. It would seem to be abridging the right of the judiciary, to hear all reason on a question before them.

-What is't to us

Though it were said by Trismegistus?

But if we are to hear the saying of a lord, years, or centuries ago; and before the 4th July, 1776, why not what another lord has said since, to explain or contradict the adjudication? The fact is, early decisions were, many of them

* I claim nothing but having been the precursor of judge Cooper on the same side of the question; and this I have a right to claim. But his opinion, published in a small octavo, I would recommend to every American student, not so much for the reasoning and ideas, as for the analysis, and systematic comprehension of the subject. It is a model that will deserve to be admired.

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