Page:The Granite Monthly Volume 2.djvu/187

 DECISIONS OF CHIEF JUSTICE SMITH.

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��1797, and afterwards by the more co- pious one of 1S05.

The statute law when Judge Smith came to the bench was in a crude, cha- otic, and unsatisfactory condition, and the common law far worse.

2. With notable exceptions, like the Livermores, which prove the rule, the bench was filled with broken-down ministers, lumbermen, bankrupt traders and cheap lawyers. From two to four of these judges as the quorum varied,. attended each trial term, if they did not, as sometimes happened, forget the time ; and not unfrequently they all charged the jury in the same cause, dif- fering oftentimes as much as the op- posing counsel. Chancellor Kent told the rest in describing the condition of things when he came to the bench in New York. "When I came to the bench," says the Chancellor, "there were no reports or state precedents. The opinions from the bench were de- livered ore teiats. We had n,o law of our own, and nobody knew what it was. I first introduced a thorough ex- amination of cases and written opin- ions."

Smith was a strong man. It needed some iron hand to purge the Augean stable and he came. He was one of the best representatives of that indus- trious, tough, enduring, Scotch-Irish stock, who regarded it as recreation to work or fight from dawn till set of sun, and then to spend half the night in jest, and song, and story. At forty, Smith was a profound lawyer. He had absorbed the history of New England, and especially of this province and state, as a sponge does water. At this time he was the greatest master of pro- bate law in New England. No one since has equalled him ; and no one in this state has approached him ex- cept the late Charles H. Atherton. He prepared two large manuscript vol- umes on the subject. It cost a vast amount of time and labor and was an able work of great value. It was the reservoir from which Webster, Chief Justice Richardson, and others hardly less eminent, continually drew. Not- withstanding he was a busy man of af-

��fairs, he was top-heavy with law learn- ing when he came to the bench, and when he retired at the age of fifty-six, he had accomplished more than ought to be expected of those at seventy-five, who now stand in the fore-front of the profession with the aid of all the mod- ern appliances. How he did it, heav- en only knows !

Upon coming to the bench Judge Smith promptly introduced the practice of allowing a single judge to direct the course of trials, at the trial terms of re- serving cases and questions for the con- sideration of the whole court, and of preparing written opinions.

This brought order out of chaos, but the labor was immense. Besides that expended on the great work of his life, the treatise on probate law, he presided at the trial terms, examined the cases, and prepared the written opinions in all cases heard in banc numbering from sixty to seventy yearly, and making fourteen manuscript volumes with a manuscript digest.

Partisan madness prevented the pub- lication of these opinions when that publication was demanded by every ra- tional consideration of the public inter- est. Had they been published when they ought, thousands and tens of thou- sands of the money of individuals and the public would have been saved, for a very large proportion of the questions heard before Judge Smith have since been litigated at great expense.

The volume before us is mainly a se- lection from the cases and the treatise referred to. We fear that the editor from an excess of caution, and from considerations which would naturally in- fluence a son, has given us less than he ought.

The cases reported are in the main, valuable. First, because they involve important questions of constitutional and municipal law, taxation, the construc- tion of statutes relating to deeds and other instruments, the rights, powers and duties of judges of probate, sheriffs and receiptors. They contain a very able discussion of the great questions of religious toleration, the right to tax clergymen, and the history of proprie-

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