It has long been a subject of complaint, in this state, that we had no reports of the decisions of our courts of judicature. The importance of having authentic reports of cases argued and determined in the Supreme Judicial Court, the only court in the state whose decisions are considered as authorities, must be obvious to all who have any pretensions to information on the subject. From considerations of this kind, it is presumed, the legislature, by an act passed some time since, (March 8, 1804) authorized the Supreme Executive to appoint some person to be a reporter of those decisions, whose duty it should be to publish the same annually. In consequence of this authority, vested in the Executive, the author of the following pages had the honor of the appointment.
It was with no small degree of diffidence in his ability satisfactorily to perform the duties of the office, that he adventured to accept the trust. Having at no time practised taking minutes of their decisions; not being acquainted with short-hand, by the use of which the practice of taking notes is greatly facilitated; and, from his local situation, having never been conversant with a class of cases (of great importance to the commercial part of the community) which would necessarily come before the court, he felt himself inadequate to the task: and had it not been for the flattering encouragement of some of his particular friends, he should have shrunk from the undertaking.
His anticipations of the trouble, the labor and the difficulties of the employment, have been more than realized. In the best-ordered system of judicial proceedings he is inclined to believe that the task would not be easy: how much more difficult it must be, under the arrangment of the terms of the Court in this state, is submitted to the consideration of the candid and intelligent. In traversing a large state, from week to week successively, the Court ordinarily having but one week for holding a term in each county, it must be obvious to every one, who reflects upon the subject, that there is not sufficient time to obtain from the records, and other sources, that information which is requisite for an accurate statement of many things necessary to a clear understanding of the cases decided. The time which was unavoidably spent in procuring materials from which the cases might be correctly stated, left little or no opportunity for application to the judges, for their aid to enable him to state with precision the ground of their opinions; or for consultation with the counsel, who argued the causes, for similar assistance, as to the points relied on and the arguments used in the several cases. And without presuming to think himself wiser than those who created the office, to which he has been appointed, he ventures to suggest his doubts whether, under the present system of holding the Courts, for the determination of questions of law, the wise intentions of the legislature can be effectuated.
In the execution of the work, he has endeavored, and he hopes with some degree of success, to state the cases correctly. Possibly, however, it will be thought that in some instances he has been unnecessarily prolix; in others too concise. As to the first, he frequently thought that a case might not be intelligible by any abridgment which he could make; and therefore he has often, perhaps oftener than was necessary, inserted a declaration, a plea, &c., verbatim; thinking that an error on that hand would be more excusable than on the other. Where he has, to avoid prolixity, attempted a concise statement of the case, he hopes that he has not thereby rendered it unintelligible.
In cases agreed on by the parties, for the opinion of the Court, he did not feel himself authorized to attempt an abridgment, and has therefore given them at large.
It will be found that he has reported a considerable number of decisions as to points of practice. Many of these were, undoubtedly, to the experienced practitioner, wholly unnecessary to be noticed; but it was supposed that they might be of some use to the younger part of the profession.
In stating the arguments of counsel, he does not pretend to have given anything more than a sketch. And if he have so far succeeded as to enable the reader to apprehend the points relied on, and the substance and import of the arguments in support of them, he shall have accomplished his aim in this part of his undertaking.
His greatest anxiety arises from his statements of the opinions delivered by the Court. In some instances, he fears that he did not perfectly understand, and, if so, it is impossible that he should have correctly stated, the grounds of the decision. He is conscious that he has not done justice to the judges in the language; for, from circumstances which have been already mentioned, he has frequently been obliged to use his own. Wherever he has mistaken the sense, or attributed to the Court expressions which will not stand the test of a critical examination, he hopes to be forgiven by the Court; and that the reader will take for granted that the reporter, and he only, is in fault. In a considerable number of instances, it will, however, be readily perceived (perhaps too readily) that he is under particular obligations to some of the judges for the assistance with which he has been honored in enabling him to state their opinions with accuracy.
From the terms in which the act, providing for the appointment of the reporter, is drawn, it was, perhaps, to have been expected that former decisions of the Court would have been reported. There are several reasons why this has not been attempted. The authority of a decision is considered as next to nothing, if it passes without argument at the bar or by the Court. It is rarely, if ever, possible to discover from the record the ground of the decision. To ascertain what cases have been solemnly decided on argument; to obtain accurate statements of those cases, the points relied on, the arguments of counsel, and of the opinions of the judges, would require the most constant and unremitted attention for a great length of time. This must be obvious when it is considered that the records, the judges, and the counsel, are, if the expression may be used, dispersed over the whole state. Nothing therefore has been attempted on this head, except in a very few instances, where former decisions have been cited and relied on.
Whether the present volume shall, in any measure, be answerable to the object intended, or the expectations excited, must be determined by the public. The author is fully sensible that it is, in many points, exceptionable; possibly in none what it ought to be. He has never before written for publication; nor, until his present appointment, did he ever expect to appear in print. Confident, however, that he has spared no pains, and hoping that his work may be of some service, notwithstanding its many imperfections, he respectfully submits it to the judgment, candor and protection of those who will duly estimate the difficulties unavoidably incident to the performance of what, to the author was not only a novel but an arduous undertaking.
Ephraim Williams, Esq.
First Reporter of Decisions (1804-1805)1 October 12, 1805
1 To learn more about Ephraim Williams, see Morris L. Cohen & Paul C. Seeman, A Man Without Qualities: Ephraim Williams, First Reporter of the Supreme Judicial Court, 9 Mass. Legal History, A Journal of the Supreme Judicial Court Historical Society 137 (2003).