as explained by Foster, declares that detaining a castle against the king, if actual force be used in order to keep possession, is treason by levying war. But that a bare detainer, as by shutting the gates against the king or his forces, without any other force from within will not amount to treason. If the case in Kelynge, which is a solemn decision upon the very point and is the only case where the point was raised or discussed, needed any conGrmation, it would be found in this opinion of Hale and Foster.

Laying, therefore, the opinion of the supreme court out of the case, I hold it to be clear and settled law, that the actual employment of the force, after it has been assembled, in some unlawful act of violence conducive to the accomplishment of the hostile design, is necessary to constitute the crime of levying war.

The application of this doctrine to the case of colonel Burr must, I apprehend, be decisive: for, if I am rightly informed, it is not pretended that any act of force or violence, or any unlawful act of any kind, was done or attempted by the men who were assembled at Blannerhassett's island: or even that they marched or proceeded from that place with any hostile purpose. If so, the prosecution must fail, on that ground.

I hope that it will fail on previous grounds: that it will be satisfactorily proved that no hostile act was intended against the United States, or any part of their territories': that the military expedition was intended against Spain: and that it was essentially bottomed upon the existence of war between us and that power, which there was, at that time, every reason to expect, and which would have rendered these preparations not only innocent, but useful and meritorious. To these points I should think it right to direct the great force of the defence.

To the end that this fair and honourable defence might have its proper effect, I should think it the duty of his counsel carcfully to avoid every topic of irritation, every harsh expression and every measure that might have the effect of exciting passion or of inlisting party spirit on the side of the prosecution. They should even avoid all attacks upon general Wilkinson, or any other witness for the United States. They should abstain,

as much as possible, from legal exceptions of all kinds, and especially from exceptions to testimony. Let them place the defence of their client upon the high ground of fair and honourable conduct, which has nothing to conceal and therefore courts a full explanation of all the facts. Content with justifying the accused, leave the public to appreciate the motives of the accusers. A person who is accused will generally have the public feeling on his side, if he do nothing to produce irritation and turn it against him. To have this feeling on his side is of unspeakable importance, in cases of obscure and complicated facts, which are to be decided upon contradictory testimony. It is such cases that afford the greatest scope for the passions to influence and mislead the judgment. That the discriminations of the judgment may be clear and accurate, the passions ought to be, to the utmost, allayed and kept down. From the character and political connexions of those who are to decide upon the facts in this case, the operations of their passions must be against the accused. His reliance is on the calm and dispassionate discriminations of their understanding. To excite passion therefore is to injure his cause in the most fatal manner.

REVIEW.

ARTICLE I.

TYNG'S REPORTS.

[Not having been able to obtain a copy of Mr. Tyng's Reports and being entirely without aid in our work, we have extracted this criticism from the "Monthly Anthology and Boston Review;" a very valuable journal which is supported by a combination of ta lents and learning, not very common in this country. It is not often that we see this work, but as far as we have an opportunity of forming an opinion, we think that it is entitled to the liberal support of the gentlemen and scholars of the country. Particular praise is due to the sedulous attention which is devoted to domestic literature; and in their criticism, the writers evince not less perspicacity to discern, than liberality to award, the proper share of merit to the various candidates for the honours of authorship.]

Reports of Cases argued and determined in the Supreme Judicial Court of the commonwealth of Massachusetts, during the year 1806. By Dudley Atkins Tyng, esq. counsellor at law. Newburyport, E. M. Blunt. pp. 268.

REPORTS of judicial decisions, when accurately made,

are instructive to the general reader, and of the highest utility to the professional advocate. In all countries such decisions are examined with public interest, and in those, where courts promulgate the binding law of the land, unalterable except by the legislature, they have obtained peculiar reverence. In a free government, where the life, liberty and property of every person is subject to the control of the laws, and of the laws only, their security requires, that tribunals of justice should not only be enlightened and impartial, but should be so deemed in the public opinion. Nothing can be better calculated to enforce such a belief than a correct detail of their proceedings.

Within the last half century a variety of reports of decisions, in the superior courts of Great Britain have been published, which in authenticity and accuracy are undoubtedly far above those which preceded them. With the exception of a few, and among these should certainly be named the Commentaries of Plowden and the Reports of Dyer, Coke, and Saunders, the ancient reporters are generally obscure in their method, and frequently inaccurate in their statements and language. Loose notes from the paper books of eminent judges or hasty sketches from the briefs of eminent counsel have too often been crowded into the public view with all their imperfections on their head,' and added to the perplexities and the doubts of succeeding ages. We can hardly be deemed severe, if with Mr. justice Buller, we include in this number the collections under the name of Comberbach and Noy.

*

It has therefore been with pride and pleasure, that in the volumes of Burrow, Cowper, Douglas, Henry Blackstone, and the Term Reports, we have seen the modern adjudged cases presented in a succinct and authentic form in nearly a continuous series. Of the various methods, adopted by them, each has its advantages and its defects; but we feel ourselves compelled to prefer that which unites brevity with precision and clearness. The multiplicity of modern law books makes it desirable to reach the point decided with as little unnecessary labour as possible.

The United States have, until within a few years, trusted to tradition the reasons of their judicial decisions. But with wealth and commerce, and with more enlarged views of jurisprudence it became obvious, that the exposition of our statutes and the validity of our customs should rest upon a more secure basis than the memory of man or the silent influence of unquestioned usage. Accordingly, reports have been published in many states; and of these among the best are those of Dallas, Cranch, Caines, and Johnson. On the merits of these we are not now called to decide; but the perusal of some of them in

In bishop of London v. Fytche, Dom. Proc. 1783.

duces us to suggest, that the insertion of the elaborate arguments of counsel at full length is neither useful nor necessary. An abstract of the principal points, and a summary view of the leading arguments, urged in their support, comport best with the design of publications of this nature. It adds no inconsiderable weight to this suggestion, that the price of lawbooks has already become a serious burthen to the profession.*

We have heretofore had occasion to notice a volume of reports of the supreme judicial court of this commonwealth; and we announce with pleasure the present, as a continuation under the patronage of the legislature. Mr. Tyng, who has succeeded Mr. Williams in the office of reporter, offers to the public, in this first part, the decisions of the year 1806; and has executed the task in a manner highly creditable to himself, and we believe, satisfactory to the profession. It was to be expected that the embarrassments of a first attempt under a system not perfectly organized for the purpose would occasion some errors, which a more distinct separation of law and fact would correct, and some decisions, which a more nice discrimination between nisi prius and bank duties would not indulge in regular reports. But in time the novelty of the undertaking would wear away; and familiarity would render a technical language and manner, of equal ease here as in the arguments and judgments of Wesminster-hall. We considered therefore the reports of Mr. Williams as entitled to a candid examination; and though not perfect in method, yet leading, and honourably leading the way to more exact and more erudite labours. The gradual improvements which we anticipated appear in the volume of his successor, whose modesty has asked indulgence for errors and defects, which, if they exist at all, are neither numerous nor material. In his preface he says; Errors and defects of another class will occur to the

Dallas and Cranch are particularly faulty in this respect, though we feel no disposition to depreciate their general merit. Johnson is particularly valuable.