AMERICAN JURIST.

NO. XIV.

APRIL, 1832.

ART. I.-OHIO REPORTS.

Cases decided in the Supreme Court of Ohio upon the Circuit, and at a special session in Columbus, reported in conformity with the Act of Assembly. By CHARLES HAMMOND, Attorney at Law. Cincinnati. Lodge, L'Hommedieu and Hammond. 4 vols. 8vo.

ALL who have had much experience in courts of justice will acknowledge the truth of the maxim 'optima est lex, quæ minimum relinquit arbitrio judicis, optimus judex, qui minimum sibi,' for, wherever room is left for the exercise of discretion, prejudice, caprice, partiality, and almost every folly and passion incident to humanity, easily find admittance. At the same time, it is well known, that, as has often been observed, such are the various modifications of which property is susceptible, so boundless is the diversity of relations which may arise in civil life, and so infinite the possible combinations of events and circumstances eluding the power of enumeration, and beyond the reach of human foresight to anticipate, that legislation must necessarily be general; and that, therefore, comparatively few of our rights and duties can be established by positive law. Hence, for the want of direct and positive enactments exactly suited to each particular case, it must be left to the wisdom and discretion of judges to deduce from the more general propositions of the law such necessary corollaries as shall appear to be within their spirit and general intent and meaning. And these deductions, when

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correctly formed and firmly established, we have very properly been accustomed to regard as a component part of the law of the land, of nearly as high authority in our courts of justice as the express dictates of the legislature itself. In the absence of other rules of decision, the writings and opinions of moralists and jurists may have some authority. But rules resulting from the abstract reasoning of the philosopher in his closet, with his scholastic refinements and distinctions, are by no means so likely to be adapted to the actual state of society and the business of mankind, as those which are founded upon approved precedents, that have in actual practice undergone the test of repeated examination and criticism.

For this reason we ought not to regret the increase of reports of the decisions of our judicial tribunals. They have already become so common as to have introduced a new era in the science of English and American jurisprudence. Their tendency has been to meliorate the law, by supplying its deficiencies, and limiting the discretion, as well as enlightening the understandings of those, whose duty it is to expound and administer it. They constitute a better part of the law, even than that which is made up of legislative enactments, inasmuch as the former is practical and the latter theoretical.

In this view of the subject one might naturally ask, who there is, not blinded by arrogance or inflated by vanity, who can desire that no record should be kept of the opinions and judgments of wise, enlightened and experienced judges in cases actually before them, similar to those, in which he may be obliged to act, or called upon to determine? Or who there is, so conceited and opinionative, as to be willing to rely on his own knowledge and judgment, and to extinguish the light afforded by the learning, researches, and judgment of others? And yet, nevertheless, there are those, who complain of the multiplication of law reports, as being a grievous evil to the community. They seem to apprehend, if what they say is to be credited, that all legal knowledge is likely to be buried in a mass of contradictory decisions; and that the science of the law will become so complicated, intricate, and difficult to attain, that no human mind can comprehend it. Who, say they, can ever read all the cases? Who can afford to purchase the books which contain them? If law books are to increase in number as they have

done, what is to become of the law as a science? What are future generations to do? These, and such like questions, are often asked by the querulous, and most frequently, by those whose greatest difficulty, we have reason to suspect, is an unwillingness to study the law as a science, or system of rules. These, it must be obvious, are objections which may be made with quite as much reason, to the increase of books in any other science, as in that of the law. No human mind can, probably, even now, read and comprehend all, or but a very small part of what has been written, upon many of the sciences. No individual can afford to purchase all the books, which have been written upon any one of many branches of learning. Yet in all the sciences except that of the law, we rarely hear any complaint of the multiplicity of books, or any wish expressed, that the publication of good works upon any of these sciences should be prohibited. In these sciences we more often hear complaints of the paucity, than of the number of good works. And is legal knowledge to be gained by intuition, or the unassisted exercise of the understanding, more readily than other kinds of knowledge? Can the infinitely various rights, duties, and relations of men in society, be regulated by a few general rules, which are easily to be learned and retained in the memory? Most certainly not. The science of jurisprudence, like many other sciences, contains such a vast number of principles or rules, that the viginti annorum lucubrationes are insufficient to learn them, and yet it is constantly improving and capable of almost infinite improvement. No one can read, or will have occasion to read, but a comparatively small part of what has been written. upon this subject, nor even of the reported cases, but by the means of indexes, digests, and books of reference, all that is really valuable is rendered accessible, and may be readily found by every well instructed reader. And while we can have public libraries, there seems to be no reason why the number of books should be limited to the means of private individuals to purchase them.

It has sometimes been urged as an argument against law reports, that the multiplying of reported decisions, many of which, must almost necessarily be erroneous, will furnish mischievous precedents, and give countenance to error and even to corruption. A judge, it is said, who is of a timid or contracted mind

will do nothing, however consonant to reason and principle, if a case can be quoted to him, in which it ever was decided otherwise; while another, who is disposed to make every thing bend to his own peculiar views, is sure to be supplyed with some case in which an opinion has been given by some Court or another, which he may adduce in confirmation of his own notions of principle or practice however erroneous or extravagant, or to justify himself in his decisions, even if made against his own clear convictions of right and justice. But it ought to be considered that weak, timid, arbitrary and corrupt magistrates, are never more dangerous than when they have no other rule to govern them, but their own will or discretion. In this case, the weak or timid judge, distrusting his own judgment, or finding no precedent on which he can rely for his justification, will, in cases of magnitude and difficulty, lean on the opinion of some distinguished counsellor at the bar, or what is worse, on wealth, or power, or the voice of public or popular opinion; and the arbitrary or corrupt judge, will have full sway, and can gratify his private wishes, without embarrassment from any opposing decision. Where principles and rules are acknowledged and established, we can reason with some effect; we can instruct the ignorant, confirm the wavering, expose error, check tyranny, and shame even corruption itself. But who can dispute, or reason, where no rule or law is acknowledged or known, but that of the blind and brutal impulses of the will or arbitrary discretion?

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The publication of the decisions of our courts of law has a salutary effect, by exposing the doings of the magistrates, who hold the scales of justice, to public notice and criticism. It is one of the greatest honors of the common law,' says the great commentator upon Littleton, that cases of great difficulty are never adjudged in tenebris, or sub silentio, suppressis rationibus, but in open court, and there upon solemn and elaborate arguments, first at the bar, by the counsel learned of either party, and after at the bench, by the judges, seriatim, upon certain days openly and purposely prefixed, declaring at large the authorities, reasons, and causes of their judgments and resolutions in every such particular case.' This probably has had no inconsiderable effect, in preserving that immaculate purity, for which the English tribunals have been so eminently distinguished, and of which the learned chancellor Kent speaks in terms of unqualified