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SHORT REVIEWS AND NOTICES.
A Treatise of Equity; with the addition of Marginal References
and Notes, by John FONBLANQUE, Esq., Barrister at Law. Third American Edition : with References to American Chancery Decisions, and additional Notes, by ANTONY LAUSSAT, of the Philadelphia Bar. Philadelphia. John Grigg. 1831. 8vo.
The reputation of the Treatise on Equity with Fonblanque's notes is so well established, that any criticism of it, on our part, would be superfluous. The present editor of this work has already appeared before the public in 1826 as the author of an Essay on Equity in Pennsylvania, which was written while he was a student of law in the Law Academy at Philadelphia. This performance was highly creditable to his industry and learning. The London Law Magazine says of it that it is an admirable book for any man, a wonderful book for a student to write.' The annotations of Mr. Laussat on the Treatise on Equity, we think, will add much to the value of this work for American lawyers. His notes, which form a considerable part of the volume, exhibit, as far as we have had opportunity to examine them, a very extensive research both of English and American authorities, and present the principles to be drawn from them with brevity and precision. It is, perhaps, hardly to be considered as a fault that the notes of Mr. Laussat sometimes enter into a much wider field of discussion than the text, or Mr. Fonblanque's notes, and examine topics very slightly connected with those contained in the passages to which they are appended. If this be a fault, it is readily pardoned, where the notes themselves, as in the present instance, contain useful and well digested matter.
We doubt, however, very much the expediency of making a short and imperfect treatise on any branch of law, the subject of a voluminous commentary. Mr. Fonblanque's notes alone far exceed in bulk the original work. The annotations of the present editor are also very copious. And, we should think, though on a hasty examination, that the original treatise was not more than a third or quarter part of the whole matter in the volume before us. Every person reads a continuous work scientifically arranged, in
which the thoughts flow on in a natural succession, with much greater pleasure than one where he is driven from the text, perhaps in the middle of a sentence, to a note, and again from the note to an annotation upon it, and is compelled to toil over pages of this double commentary before he can return to the text from which he departed. However able the notes may be, it is almost impossible to read a work constructed upon this plan without great fatigue and perplexity. Besides this, the plan of the original work, however excellent, must always cramp an editor who wishes to make his notes the vehicle for giving the whole law on the subject. Many things must be entirely omitted or appended very ungracefully to passages with which they have little or no connexion. In other cases, especially where the original work has been written for many years, and titles little attended to when it was written, have since grown into importance and been illustrated by numerous decisions, the editor must make a single sentence or a word of his author the subject of a treatise. The original work and the commentary in such cases become a mutual disservice to each other. If the original work be worth republication, let it be printed with moderate notes for explanation and illustration. If the commentary affords matter for a treatise, let it be wrought into that form.
Precedents of Indictments ; to which is prefixed A concise Treatise
upon the Office and Duty of Grand Jurors. By Daniel Davis, Solicitor General of Massachusetts. Boston. Carter, Hendee, & Babcock. 1831, pp. 319. 8vo.
The author proposes to furnish, in this volume, ‘ a more extensive and complete collection of precedents of indictments, than has hitherto been contained in any one work upon that subject; and to reduce them to as great a degree of conciseness and simplicity as may be consistent with their correctness and validity.' He professes to reject from the forms, 'the obsolete language, the ancient but unnecessary technical phrases, and the superfluous prefatory allegations and averments, which are still retained in the English and American collections, taking care however, to refer to the authorities by which they have been decided to be unnecessary and superfluous.'
The design is certainly excellent. Why should not the language of the law keep pace with the improvement of the age in other branches of science and literature ? All that is required in legal forms, whether in civil or criminal matters, is, that the thing intended to be signified, should be expressed in simple language and with logical exactness. The professors in most of the states
have never adhered to the cumbrous forms and tedious repetitions of the English practice. It has never been the custom in this country, to pay a lawyer in proportion to the number of words which were contained in a legal paper. And we have never known an instance of the failure of an action, for the omission of a technical term, where it was not essential to the description of the subject matter of the process.
We would not, however, be understood, by the preceding remarks, to intimate an opinion against special pleading : for we have not, in our limited practice, known any inconvenience or injury to arise from its use. Every thing relating to the forms of actions, and the answers or pleas of the parties, is comprehended in this branch of professional learning. To every question there must be an answer; and surely it is convenient, that the parties should present their allegations and replies, which are no more than a species of dialogue, fully and explicitly, in a well known and approved form. If it were of no other use, we think that special pleading should be retained to sharpen the intellect of lawyers by the study of its rules. But so long as it is fashionable for them to devote themselves to politics, and to study almost every thing with a relish, but their profession, we must expect that special pleading, and even Coke upon Littleton, will be treated with unmerited neglect.
Mr. Davis's work contains the fruits of 'thirty years' uninterrupted experience,' during the best period of his life. It contains three hundred and forty-one forms of indictments, for a great variety of offences, both at common law and on statutes. They are generally in a condensed form, stripped of useless matter, and present the subject of complaint in a clear manner. Most of these forms were drawn by the author, in cases which have occurred in the course of his official duty, and have thus passed a judicial ordeal. The notes and references to authorities added in the forms, are numerous, and are concise and valuable.
In the short Treatise upon the Office and Duty of Grand Jurors,' the author remarks upon the following topics, viz.
· First. Their number and qualifications as required by law. 'Secondly. The mode of selecting and summoning them.
Thirdly. The course of proceeding after their appearance in court. Their oath; its nature and obligations.
'Fourthly. The right of challenging grand jurors, and the right of the court to instruct them as to the principles of evidence.
Fifthly. The mode of proceeding, after the grand jury are organized.
'Sirthly. The nature of the evidence to be submitted to them, and the principles and grounds upon which it is to be received and decided upon by them.
Seventhly. The right of the grand jury to compel the attendance of witnesses. The finding of the bills, &c.
• Eighthly. The amendment of indictments by the order of court, and the consent of the grand jury.'
These several subjects are treated in a lucid manner. In the remarks upon the third head, the author speaks of that part of the duty of a Grand Juror, which requires him to observe secrecy, an extract from which will give a favorable view of the style and manner of the writer.
'A most important injunction, in the oath of a grand juror, is that which imposes upon him the obligation of secrecy. The words of it are, “The Commonwealth's counsel, your fellows', and
your own, you shall keep secret." ‘Secrecy is not only consistent with, but essential to the nature of this institution. It has been held that the true object of the secrecy required is to prevent the evidence produced before the grand jury from being counteracted by subornation of perjury on the part of the defendant. The obligation to preserve it extends to every transaction which takes place in the presence of the grand jury, and cannot be violated without a flagrant breach of the oath. This violation is a high misprision, and a finable offence. It connects and involves the duty of the juror with the interest and safety of the government, with all the other members of the grand jury, and with his own responsibility and conscience; and it is a duty which a citizen is under the highest obligation to discharge, faithfully, and with a good conscience. Notwithstanding which, it is one of the most common occurrences in the history of grand juries, to find it disregarded. It is proper, however, to add, that this evil arises generally more from indiscretion, and want of consciousness of its pernicious consequences, than from any criminal design to injure or betray the interest of the government. The following are some of the pernicious effects of it. As soon as the decision of the grand jury is made, in a case pending before them, if it be against the party accused, the fact comes to his knowledge; and he then has an opportunity to abscond, if he is held by recognisance only. Another common and serious result of these hints or direct communications of what has been done, is a knowledge of the testimony of particular witnesses; to counteract which,
the party accused offers other witnesses for examination; and thus the institution is converted, from a tribunal for the purposes
tion, into a jury of trials, and affords a strong temptation for subornation of perjury. Although the grand jury are instructed, that their proceedings are always intended to be ex parte, it is often difficult to convince them, that when their oath enjoins them "diligently to inquire," it is not their duty to hear all the evidence that is offered them. The effect is often equally pernicious in
When the party finds that he is to be indicted, it is very common for him to bring forward a counter prosecution against the complainant, and require that it shall be examined before the grand jury are dismissed. It often requires all the vigilance and authority of the public prosecutor, to defeat these impositions upon the justice of the public; and it is known from experience, that they are often the consequence of the careless observance of the oath of secrecy, in some member of the inquest. The act of divulging the secrets of a grand jury would not be so unjustifiable, if it affected the personal responsibility of him only, who commits it; but it is an act, which not only betrays his own secret, but is an essential injury to the government, and to the whole body of the inquest, by frustrating the most important objects of the institution.
'In order to prevent injuries and abuses of this kind, it is a principle constantly given in charge to the grand jury by the court, that this obligation of secrecy is perpetual, and that a grand juror cannot be absolved from it at any period of his life. Nothing in the administration of public justice can be more rational or salutary than this principle. A violation of it may be the means of producing dangerous and violent animosities through life, among those who may be affected or injured by it.'
We have not room in this brief notice, to make further extracts. We are happy to express the opinion, that the learned author has rendered a good service to his profession, in imparting to them the fruits of his experience. The works of practical men, of those who have taken a part in the scenes which they describe, whether in the arts, in history, or in the learned professions, always derive an additional value from the stamp of originality with which they are impressed.
Metcalf's Edition of Russell on Crimes. Two English editions of this work have been published. The main difference between the first and the second, is, that in the latter the work is modified so as to admit of the introduction of the recent English statutes. The second edition also contains the recent decisions, and 140 pages on evidence, by Mr. E. V. Williams.