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tional account of the meaning of the parties, and in such cases a judge does much better herein, than what a bare grave grammarian and logician, or other prudent men could do; for in many cases, there have been former resolutions either in point, or agreeing in reason or analogy with the case in question; or perhaps also, the clause to be expounded is mingled with some terms or clauses that require a knowledge of the law to help out with the construction or exposition; both which do often happen in the same case and therefore it requires a knowledge of the law to render and expound such clauses and sentences; and doubtless a good common lawyer is the best expositor of such clauses.
I recur to observe a little on the act of assembly of the 19.h March, 1810: "It shall not be lawful to read or quote any British precedent or adjudication," &c. This injunction or prohibition has been complied with by the courts, though I can have no doubt that it was under a misconception of the legislature, as to the authority of British precedents, or adjudications, that they judged it expedient to enact such a law; and as to that obligation under which the courts were supposed to consider themselves bound to respect such precedents or decisions. Hence it is that the courts have been forced to do that indirectly which they could not do directly; and to suffer such adjudications to be read and quoted through the medium of the reports of other states, which, of necessity, must increase the lawyer's library; so that in respect of time taken up in reading authorities, there is nothing gained; and this, I take it, was one object in precluding such reading and quotation. But I have viewed this matter in the light of a more extensive consequence. It is interfering with judicial rights. Shall not a judge have the privilege of informing himself from all sources of knowledge? It may be said there is nothing in this act to hinder him from informing himself in his chamber and by private reading. But it is in the way of the privilege of a party to urge that information upon his mind, when, in the opinion of the party or his counsel, an advantage may be thought to be derived from it. The legislature would start at the idea of
precluding the reading the holy scriptures, the principles and reasons of which, may, in many cases, be applicable as grounds of natural justice. For the law of God is a grouad of the common law. They would equally revolt at the idea of precluding the sentiments of moral writers on any subject, even though these were British. The truth is they have no right to interfere with the mind of the judge, as to what he shall read, or suffer to be read to him. But more especially here, where the very substratum of his judgment in many cases, must be the comments that are made on the common law; and what can the distinction be, whether these comments are made by men who have lived, or by men now living, if they appear to carry reason and truth?
"Knowledge at one entrance quite shut out." Can this be considered in any other light, than that of trenching on the right of judgment; and narrowing the province of investigation? I feel the more for it, because it is an imputation upon the good sense of the state, and a reproach with the jurisconsults, and men of science of other nations. "Prove all things and hold fast that which is best," is an injunction of the scripture; and why not hear all things, which is the means of attaining just ideas on a subject discussed. The judiciary is a co-ordinate branch of the government; and which, if it is trusted with saying what the law is, may it not be left to its discretion to hear all reasoning on the ground of law, let it come from whatever quarter they may be willing to admit it?
A good deal has been said on the power of courts to judge on the constitutionality of a law. It would seem by the reasoning of some to be thought a self evident proposition; while others considered it extremely difficult even in theory to decide upon the question. But certain it is that if reduced to practice it must be a plain and broad case that will justify the interference, or render it safe to make the experiment. An omnipotent legislature will not readily yield to any thing but that which will carry the sense of the community with it; and this must be a transgression of the constitution extremely obvious indeed. A transgression may
be plain and obvious from the nature and the magnitude of it. The British statute declaring the power to bind "the colonies in all cases whatsoever," was of a nature that justified resistance in the very first exertion of that power, from the principle which it contained. The very first at tempt to exercise such a power, was resisted and gave rise to the war of the revolution. The power which the same government assumes in taking from American vessels, seamen naturalized in these states, and compelling them to serve as British subjects, because they have been once such, has been a cause of the present war; one cause at least; and seems to be the principal ground on which it is at this time continued. This claim is of such a nature that the principiis obsta, must apply, if it is at all to be resisted. For it is not the number of American seamen impressed, but the right of such impressment, or taking, that is to be determined.
To give an example on the other hand, of acts which, not from the principle, but from the excess and magnitude, become questionable, we may refer to the state laws increasing the jurisdiction of the justices of the peace; or abridg ing the province of jury trial by extending that of arbitrators; or taking away appeals from these, unless above a certain sum. No one will say, but that if all jurisdiction were given to the justices, or all to arbitrators, without appeal, and by this means the trial by jury indirectly abolished, it would be an invasion of the constitution; but, inasmuch as it cannot be considered an infringement of the constitution to give the justices some jurisdiction, for they had it under former constitutions, and it has not been taken away by the present, it will be impossible to say, at what point, the legislature ought to stop; and if undertaken to be said by the courts, it must be at some point of great excess that such a stand can be made.
Will not the act of our legislature taking from the courts the right of hearing any reading or quotation, involve the principle, that this may interfere to any extent; and is it not in the principle itself so obvious as to forbid a submis
sion? I know of no case which has yet occurred, in the jurisprudence of the country, that is equally alarming and I have no doubt that if the courts would refuse to submit, the good sense of the country would be on their side, and bring about a repeal of the law. I have no doubt but that even the legislature which enacted the law would repeal it. For it was owing to a misunderstanding of the fact that British precedents or adjudications, since the 4th of July '76 were read as authorities; or carry any more weight in them than their intrinsic reason and good sense warranted. There was a reflection upon the courts to suppose it possible that the reading or quotation of these could carry more. But the truth is, what led to it in some degree, was an appearance of this, and an overweening attachment which some judges seemed to discover to British decisions even of an ulterior date. But it was an evil that would wear off in due time; but the remedy was worse than the mischief; the undertaking to restrain or abridge that information from all sources; and without which they can be neither liberal nor informed. The only means to prevent narrowness and to give liberality, is to let all be heard.
I have said that another cause of the act of the legislature, or what led to it, was what had been seen and felt by the country, in taking up the time of the court with so much reading and quotation; and it was thought that if the province of reading was abridged, there would be less. But if the later and more modern determinations are not read, their place will be filled up from the old, which are without the corrections that time must be supposed to give in the growing wisdom of one age above another; and the adaptation to the increase of liberty and commerce; and even if there were fewer books to be read and quoted, it will not hinder to speak as much. For as long a sermon may be made upon a single verse as upon a whole chapter.
I had been disposed to construe quoting in the act to respect only the reading a quota of the case; or what applied to the point; or, to narrow this still more, by taking it to mean a referring to the case merely; and this is what,
had I my will, I would allow counsel only to do, as to any adjudication, unless called for by the court. But I dislike a quibble; and therefore take it according to common parlance, and suppose it to mean a prohibition of making a refference to any British precedent or adjudication; and this I consider clearly as interfering with the right of judgment in a judge; because it abridges his means of information. But drawing out the consequence, it is interfering with the right of suitors, and with the province of juries and arbitrators, who have a right to hear reason, let it be of British or civil law, or other origin. Good sense and reason is of no country; it has its domicil in all regions, and deserves to be hospitably received, let it come from whence it will
ON THE AMENDMENT OR ALTERATION OF
I shall begin with an abstract of chief justice Hale's observations, "touching the amendment or alteration of laws."
"The business of amendment or alteration of laws is a choice and tender business, neither wholly to be omitted, when the necessity requires, and yet very cautiously and warily to be undertaken, though the necessity may, or at least, may seem to require it.
"Here we see there are two extremes, the over-hastily mutation of laws under pretence of reformation; and an over-strict adherence, in every particular to the continuance of the laws in the state we find them, though the reformation of them be never so necessary, safe, and easy.
"Every law that is old hath this advantage over any new law, in that it is better known already to the people who are concerned in it, than any new law possibly can be, without some length of time; by means whereof it must needs come to pass, that though a new law be possibly as good, and it may be, in some degree better than the old, yet many great