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employment. This from the beginning of the reign of Ed. II; and was continued until in the reign of Hen. VIII. When, says Reeves, 414, “ The opinion of this establishment was altered, and it was thought more advisable to trust to the general inclination discovered in private persons to take notes, who, probably, from a competition, would do more towards rendering this department perfect, and useful, than any temptation from a fixed salary.” But Blackstone on this subject, expresses himself in the following manner, 1 Com. 71. “ It is much to be wished that this beneficial custom (reporters with fixed salaries) had under proper regulations been continued to this day. For though King James the 1st at the instance of lord Bacon, appointed two reporters, with a handsome stipend for the purpose ; yet, that wise institution was soon neglected ; and from the reign of Hen. VIII. to the present time, this task has been executed by many private and contemporary hands, who, sometimes, through haste and inaccuracy ; sometimes through mistake and want of skill, have published very crude (perhaps contradictory) accounts of one and the same determination."
The decision of a court is but evidence of what the law is; and a report, is, but evidence of the decision, with the reasons, if any are given. The weight of the evidence will depend upon the supposed ability of the reporter. It is of great moment therefore, that this evidence, be the best in the nature of the case that can be got; though, in the nature of things, it can be but imperfect, not only from the reporter misconceiving what is delivered ; but also from the not noting as quickly as the words are delivered by the judge, which is impossible, and therefore a great deal must be omitted in point of identical expression at least ; and by that means the sense may be lost, or impaired. It is not practicable to follow closely what is delivered, unless by professional sienographers, or short-hand writers.
By an act of 24th Feb. 1806, it is provided, that, “In all cases in which the judge or judges holding the supreme court; courts of nisi prius circuit court, or court of common
pleas, shall deliver the opinion of the court, if either party, by himself or counsel requires it, it shall be the duty of the said judges respectively to reduce the opinion so given, with their reasons therefor to writing, and file the same of record in the cause.” It will follow from this that a judge must be able to write. By the common law this was not ne cessary. The prothonotary was the officer of the court who alone was expected to write ; or clerks of the several courts. In the case of a bill of exceptions given by the statute 13 Ed. 1. c. 31. the judge could only be called upon, to put to his seal, not to write his name. But the arresting the trial until an opinion can be written out, is inconsistent with the despatch of business. And a bare opinion with the reasons of it, without a statement of the facts on which it is founded, and on which the law arises, can be of little moment. It is the business of a reporter to give these facts; for the calling on a judge to do this, would still more encrease his cierk duties, and engross his time. The duty enjoined by this act is inconsistent with the faculty of thinking to advantage, and the powers of judging. For it is impossible for one to be a scrivener, and at the same time, to have his mind free to think only. The manual occupation will interfere with the exercise of intellect. It is a great innovation upon the province of the judge ; and I do not set it down under the head of an improvement in judicial trials. Were it not that it is a right under the act, which is but sparingly used by the party or counsel, it would be impossible to get through a trial in any reasonable space of time. In fact it is seldom used unless when a point is decided against the counsel, and they take revenge by giving the judge trouble.
If the act is not repealed, I would suggest a small amendment to it by way of supplement; “That it shall be the duty of the prothonotary to take down the opinion of the judge as delivered, with the reasons.” This would delay business ; but it would relieve the judge from the drudgery of the chirographer, and give the chance of a fairer handwriting to be filed. For a prothonotary has his name and his office from the idea of being a scribe. It might be enjoined also
on the party or the counsel in the cause to be the amanuensis to prepare what was to be recorded, by way of assisting the prothonotary, or clerk if he should require it; or the judge should direct. This would be some check on the calling for opinions, and the reasons of them. It may be said the judge is not expected to take time for this clerkship in the hurry of the trial, but in his chambers at the inn, or private lodgings, when on the circuit. But it must be done on the spur of the occasion ; for the jury cannot go out till they hear it; and, it is on a charge to them, that the opinions and the reasons are most usually required. If it is on a demurrer, or in arrest of judgment, the objection in part, remains as to time, but as to the incongruity of clerkship with the office of a judge, it exists altogether. Even in term it is a heavy labour to be bound to make out opinions and reasons in all cases. The greatest dunce of a judge has the best chance ; for such generally like to write ; for the faculty of thinking is not familiar to them.
By an act of the 5th March, 1812, "where more than one exception is taken or point made in any court of common pleas, or other court of inferior jurisdiction, and the same has been duly removed to the supreme court for their decision, the judges of the supreme court are enjoined, and required to give their opinion on every point, and exception taken and signed in the inferior court, which opinion so delivered, if required by either plaintiff or defendant, or any third person interested in the event of the cause, shall be filed in writing by the said judges, with the prothonotary of the proper district.” I approve of this act so far as it calls for an opinion on every point and exception taken in the court below. But so far as enjoins the filing in writing, it is liable to the objection, and would seem to require the amendment, already stated; more especially as the right of calling for the opinion to be filed is extended to third persons, not parties to the action, but who may conceive themselves someway interested in it.
1 Bl. Com. 141.
There is no compensation for the soil taken for the use of roads in Pennsylvania. 6 per. cent. or, 6 acres in the hundred acres, were allowed, in the proprietary grants ; so that, in a survey of 300 acres, 18 were allowed ; hence it is that the surveys are made, and returned into the surveyor general's office as containing 300 acres, and allowance. The demesne as of fee; or the jus proprietatis, or absolute ownership of the whole 318 acres, is in the grantee, but subject to a right of the public in the whole quantity, to take at any time an occupancy for the use of roads ; or, rather, in consideration of this allowance, there is an interest in the public for the laying out, and the occupying the ground for what roads it may deem necessary to lay out through it. In no case can it be supposed that more than 18 acres can be laid out and occupied for this use ; nor perhaps more than 'd of that quantity. Two roads of 33 feet or 2 perches, the usual width, crossing the tract at right angles, or carried through it, in any direction, would not, by my calculation, take up more than 6 acres and little more than 13th. And it must be rare if ever more than 2 roads of this width, or narrower roads in proportion to these, can be laid out through any tractof 318 acres. An under purchaser takes subject to this right of the public to lay out roads. It may happen that a purchaser of a small quantity may have all that is taken for roads to pass through his lot, but he cannot complain. The public are bound to make compensation only for the improvements on the ground, a building pulled down which is in the way of the road laid out; orchard trees, or grass growing on meadow ground; and this at a valuation. But trees that have not been planted, but in their natural state growing in a wood, are not to be valued; but may be cut down, or taken for bridging and other uses in the making the road, in the same manner as stones or earth.