The Original Law Journals

THE ORIGINAL LAW JOURNALS

Ross E. Davies, George Mason University School of Law

Green Bag 2d, Vol. 12, No. 2, pp. 187-217, Winter 2009

George Mason University Law and Economics Research Paper Series

09-15

This paper can be downloaded without charge from the Social Science Research Network at http://ssrn.com/abstract_id=1351928

FROM THE BAG

The JOURNAL OF LAW, addressing itself to THE PEOPLE OF THE UNITED STATES, will be principally devoted to the exposition, in popular language, of the philosophy, history, and actual state of law and government . . . . Its aim will be to afford instruction without tediousness, and amusement without frivolity.

The Journal of Law 1 Journal of Law 31 (1830)

THE ORIGINAL LAW JOURNALS

Ross E. Davies†

OMMERCIALLY SPEAKING, law journalism was a risky business in the early Republic. According to Frederick Hicks,1 of the 30 legal periodicals that went into business before 1850, 24 also went out of business before C1850. And of the six that survived into the second half of the century, five expired by 1866, leaving just one to carry on over the long term.2 (That one is the Legal Intelligencer of Philadelphia, which is still in operation today.3) A simple recitation of Hicks’s body count does not, however, reveal the full intensity of the semi-Hobbesian existence of those early journals. A few features of their experience merit a bit more attention. First, the very short lifespans. Second, the total number of failures. Third, the persistence of failure despite enthusiastic support from pillars of the bar. And fourth, the depths of obscurity into which those failed journals have tended to fall.

† Ross Davies is an editor of the Green Bag and a law professor at George Mason University. 1 Hicks was a Yale law professor and librarian, and remains post mortem “the foremost bibliographer of U.S. law.” Richard A. Danner, Applying the Access Prin- ciple in Law, 35 INT’L J. LEGAL INFO. 355, 367 n.50 (2007). 2 FREDERICK C. HICKS, MATERIALS & METHODS OF LEGAL RESEARCH 204, 207 (3d ed. 1942; 1959 prtg.) (hereafter “HICKS”). His list of 30 consists of the 29 pre- 1850 journals on his “Chronological List of Early American Legal Periodicals” and the one on his list of “Law School Periodicals.” 3 See www.law.com/jsp/pa/index.jsp (visited Feb. 8, 2009).

12 GREEN BAG 2D 187 Ross E. Davies

THE SHORT LIVES & MANY DEATHS OF THE EARLY LAW JOURNALS irst, the matter of lifespan. While all of the journals on Hicks’s F list did appear in print during the first half of the 19th century, they did not fill the period up with law periodicals. Rather, they tended to come and go quickly, scattering episodes of law journalism across the half-century and across the country. In one big city – New York – nine journals combined to cover the years 1813 to 1826, 1833, and 1842 to 1854; the rest of the time there were no law journals at all based there. The longest-lived New York journal was in print for a dozen years; the next-longest survived half that long. Nationwide, and excluding the Legal Intelligencer, the law journals on Hicks’s list had an average lifespan of less than five years, and the median was two years.4 Second, there were more casualties than those Hicks identifies, although just how many more is an open question. Evidence of the existence of these journals can be hard to come by, making firm claims about them a risky business as well. For example, in an 1870 article listing early American law periodicals, the Albany Law Journal included the New Yale Judicial Repository (a journal not on Hicks’s list), but admitted that “[w]e have been unable to find a copy of it.”5 In other cases they may simply be too easy to miss. The Militia Re- porter (which survived for just one issue in Boston in 1810) does not

4 See HICKS at 204, 207. The experience of their English antecedent, the Lawyers’ Magazine (London, 1761-62), was similar. Id. at 197, 200-01. 5 American Law Periodicals, 2 ALB. L.J. 445, 446 (1870) (reporting also that the Repository was in print from September 1818 to January 1819). Rediscoveries of old journals do occur. A recent example concerns a journal from slightly outside the period covered by this article. In a thorough 1985 study of student-edited journals, Michael Swygert and Jon Bruce noted the short life (1875-76) of the Albany Law School Journal and their regret that “[u]nfortunately, the authors have been unable to locate the volume produced in 1875.” The Historical Origins, Found- ing, and Early Development of Student-Edited Law Reviews, 36 HASTINGS L.J. 739, 766 n.223 (1985). A dozen years later, Robert Emery reported the discovery of “one single issue of the Albany Law School Journal, dated April 13, 1876.” The Albany Law School Journal: The Only Surviving Copy, 89 LAW LIBRARY J. 463 (1997).

188 12 GREEN BAG 2D The Original Law Journals

______

William Cranch served on the U.S. Circuit Court for the District of Columbia (1801-55), was reporter of decisions for the Supreme Court (1801-15), and edited the “Jurist and Law Miscellany” (1834-uncertain).

______appear on Hicks’s “Chronological List of Early American Legal Pe- riodicals,” but it does appear on the comprehensive “List of Anglo- American Legal Periodicals” prepared for Hicks by his colleague Pauline Gee.6 One journal that surely belongs on, but is missing from, Hicks’s list is the Jurist and Law Miscellany. Perhaps the first law journal to be based in the nation’s capital,7 it was founded in 1834 and appears to have gone out of business sometime in 1835. It is, however, difficult to be certain just when the Jurist went under. On the one hand, the few available copies date from 1834 and 1835.8 On the other hand, a bookseller in Boston was advertising the journal for sale in 1836 as though it were still in print.9 Not surprisingly, the journals missing from Hicks’s list were short-lived (none seems to have survived for much more than one

6 Compare HICKS at 204, with id. at 512, 549; see also, e.g., id. at 548 (The Man of Business; Or Every Man’s Law Book (1833-35)); see also Marion Brainerd, Historical Sketch of American Legal Periodicals, 14 L. LIBR. J. 63, 66-67 (1921). 7 Hicks finds none in Washington in the first half of the century. HICKS at 204-07. 8 Libraries at Cornell, George Washington, and Yale universities and at the Ameri- can Antiquarian Society hold fragments of the Jurist and Law Miscellany from 1834 and 1835. WorldCat (visited Feb. 20, 2009). 9 See AM. JURIST & L. MAG., Apr. 1836, at 250.

WINTER 2009 189 Ross E. Davies

year), and thus they raise the already high mortality rate and lower the already low average lifespan of the early law journals. More- over, knowing that even a scholar as expert and as thorough as Hicks could miss at least a few (and that modern scholars continue to turn up evidence of additional mayfly journals), we can suspect – but not know – that there may be more extinct relatives of the Mili- tia Reporter and the Jurist and Law Miscellany resting peacefully in undisturbed files somewhere. And perhaps there are more like the New Yale Judicial Repository, which we may never see.10

WANT OF SUFFICIENT ENCOURAGEMENT ccording to a contemporary observer, the unsuccessful early law journals “all perished, for want of the needful encourage- A 11 ment.” It surely was not for want of “encouragement” in the common sense of “giving courage, or confidence of success.”12 There was plenty of that. It must have been something else. The little direct evidence of what that something might be13 points toward want of “encouragement” in the sense of want of “[t]hat which serves to . . . support, promote or advance, as [in] . . . rewards, profit.”14 That is, a want of paying customers. Or, more straightforwardly, not enough money coming in.

10 See Gilson G. Glasier, Early American Periodicals, 28 A.B.A. J. 615 (1942) (“Ap- proximately fifty publications with some claim to be classed as legal periodicals were started between 1808 and 1850.”). 11 G.G., Digests of American Reports and American Law Periodicals, 23 AM. JURIST & L. MAG. 128, 137 (1840). 12 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828). 13 Many journals went out of business without notice or explanation. See, e.g., Joel Fishman, An Early Pennsylvania Legal Periodical: The Pennsylvania Law Journal, 1842- 1848, 45 AM. J. LEGAL HIST. 22, 26 (2001) (“At the end of the seventh volume, there is no notice of demise or why the journal did not continue. Since we do not even know who the [editors] were, it cannot be ascertained why the publication ended when it did.”). And those who gave notice were not necessarily inclined to dwell on specifics. See, for example, the last page of the last issue of the Carolina Law Journal (1830-31): “This number completes the first volume of the Law Jour- nal. For reasons which it is unnecessary to state, the work will be discontinued.” 14 WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE.

190 12 GREEN BAG 2D The Original Law Journals

There was indeed plenty of support of the boosterish sort. In the 1836 edition of his book A Course of Legal Study, David Hoffman (the first law professor at the University of Maryland) commended law journals generally to his readers: We therefore advise our student to improve his otherwise lei- sure hours, with the perusal of the reviews of legal works; of the magazines, and other repositories of legal essays,– and especially of such admirable works as the American Jurist, the London Law Magazine; and several of the continental works . . . .15 And there was editorial support for individual journals as well. For example, the Journal of Law was launched on July 7, 1830 by Phila- delphia entrepreneur Henry H. Porter,16 in cooperation with “an Association of Members of the Bar.”17 Soon positive notices were appearing in the press.18 In the opinion of the Saturday Evening Post,

15 DAVID HOFFMAN, 2 A COURSE OF LEGAL STUDY, ADDRESSED TO STUDENTS AND THE PROFESSION GENERALLY 669 (2d ed. 1836). 16 THE JOURNAL OF LAW, vol. 1 (1830-1831); see also Thomas A. Horrocks, “The Poor Man’s Riches, The Rich Man’s Bliss”: Regimen, Reform, and the Journal of Health, 1829-1833, 139 PROC. AM. PHIL. SOC’Y 115, 116 n.4, 130 (June 1995). 17 The membership of Porter’s “Association” of lawyers is not known and may have been quite limited. As Thomas Horrocks has pointed out (Promoting Good Health in the Age of Reform: The Medical Publications of Henry H. Porter of Philadelphia, 1829- 32, 12 CANADIAN BULLETIN OF MEDICAL HISTORY 259, 261-62 (1995)), the “As- sociation of Physicians” with which Porter worked on his Journal of Health consisted of only two local physicians, Drs. John Bell and D. Francis Condie . . . . By using the term “association,” Porter may have wanted to create the impression that the publication had wide backing within the medical profession. The same might be said of Porter’s use of the same term to characterize the editors of the Journal of Law. But we do not know whether there were only two of them, or, on the other hand, two hundred. Other publishers did the same. See, e.g., 1 U.S. L.J. & CIVILIAN’S MAGAZINE title page (1822-23) (“Edited by Several Members of the Bar”); Fishman, 45 AM. J. LEGAL HIST. at 26 (describing a journal “Edited By An Association Of Gentlemen Learned in the Law” and observing that, “we do not even know who the ‘Gentlemen Learned in the Law,’ were.”). 18 See, e.g., BANNER OF THE CONSTITUTION, July 21, 1830, at 439; REGISTER OF PENNSYLVANIA, Aug. 21, 1830, at 128; The Journal of Law, EPISCOPAL WATCH-

WINTER 2009 191 Ross E. Davies

The contents of this number [the third issue], which we think the best that has appeared, prove the editors to be not only well stocked with professional knowledge, but, what is scarcely of less importance to the conductors of such a journal, to be perfectly free from professional prejudice.19 Friendly support was not universal, however. The idea of specialty journals for professionals was still fairly new, and not everybody liked the new: We have now a “Journal of Health,” (so called) and a “Journal of Law” – what next is coming we cannot tell – but we suppose all the professors will open on the same scent, and we shall have a “Journal of Preaching,” a “Journal of Tayloring,” of “Love,” of “Marriage,” and one of “Charcoal” will soon follow, and then will come a “Journal of Sleeping,” with anecdotes of people who have been diligently employed for the last three months in letting their hair grow. . . . With the Journal of Law we have scarcely sufficient acquaintance to perceive that it has any precise object in view, except to make money, and can only spare room to insert a few of its wise saws.20 The critics of the Journal of Law got what they seemingly wished for. After one year in print, it disappeared.21 In any event, publicity good or bad does not pay the bills; paying customers do. It is clear from the pages of the law journals themselves that both the editors and their boosters recognized this fact – the need for “encouragement” of the “rewards, profit” variety – and worried about it. It is equally clear that they almost never got it.

MAN, Sept. 4, 1830, at 134; Periodicals, PHILA. ALBUM & LADIES’ LITERARY PORT- FOLIO, Apr. 2, 1831, at 109. 19 SATURDAY EVENING POST, Aug. 7, 1830, at 2. 20 THE ARIEL, Sept. 4, 1830, at 78. 21 The last issue was published on June 22, 1831. See MILES O. PRICE & HARRY BITNER, EFFECTIVE LEGAL RESEARCH: A PRACTICE MANUAL OF LAW BOOKS AND THEIR USE 470 (1953); but see American Law Periodicals, 2 ALB. L.J. at 447 (1870) (reporting that the Journal of Law “reached the respectable age of thirteen years, represented by a series of thirteen volumes” – a statement with no support in any other description of the journal, or in any publicly available library catalog).

192 12 GREEN BAG 2D The Original Law Journals

Consider, for instance, the fate of the Journal of Jurisprudence: A New Series of the American Law Journal,22 another of the short-lived Philadelphia-based law journals. Following friendly announcements in 1820 of the pending launch of the new journal – including hints that its authors would include Chief Justice John Marshall and Peter S. DuPonceau, a leading Philadelphia lawyer23 – the first and second issues appeared in early 1821. Then there was a hiatus, during which DuPonceau wrote an editorial calling for support of the Jour- nal of Jurisprudence: We were happy to observe last year, a revival of the American Law Journal . . . . More than six months, however, having elapsed since the second number was delivered to the subscribers, we were beginning to fear that the undertaking had again been dropped for want of sufficient encouragement, but we find on inquiry, that the third number is in press, and will be out in a few days, and that the materials for the fourth are in complete preparation. Yet we are not without fears that the same causes which have produced the former suspensions of that work may again operate, unless it shall receive a more ex- tensive support from the members of the legal profession throughout the United States . . . .24 The editor of the journal, John E. Hall, shared DuPonceau’s concerns. The last words printed at the bottom of the last page of his journal’s first volume were: If the sale of this volume be sufficient to warrant the expense of another, the second will contain an analysis of the American cases similar to that which will be found, here, of the English Decisions.25

22 The original American Law Journal and Miscellaneous Repertory, published in Phila- delphia from 1808 to 1817, was the first of its kind in the U.S. HICKS at 203. 23 See, e.g., Intelligence in Literature, Science and the Arts, THE PORT-FOLIO, Feb. 1, 1820, at 502, 505-06; List of American, and Important European, Late Publications, LITERARY & SCIENTIFIC REPOSITORY, & CRITICAL REVIEW, June 1, 1820. 24 Testimon. erudite. viror., 1 J. JURISPRUDENCE 3 (1821) (quoting comments published in the Philadelphia Freeman’s Journal). 25 1 J. JURISPRUDENCE 541 (1821).

WINTER 2009 193 Ross E. Davies

______

“The plan and the execution of the [Louisiana Law Journal] please me exceedingly. . . . Your work has hit my judgment and taste throughout.” James Kent, in a published letter notifying the editors that he has subscribed to their journal (July 31, 1841)

______DuPonceau and Hall’s fears were well-founded. Hall never published a second volume. In fact, even DuPonceau’s anticipation of a fourth issue of the first volume was over-optimistic. Three issues and out was the fate of the Journal of Jurisprudence. The experiences of the Journal of Law and the Journal of Jurispru- dence were not unusual. Other journals, too, received support not only from other periodicals,26 but also from pillars of the bar. Aid from leading lawyers came in the form of endorsements,27 and of publishable material with impressive bylines.28 And like the Journal

26 See Brainerd, 14 L. LIBR. J. at 67-68 (collecting positive contemporary reviews); see also, e.g., 6 MONTHLY ANTHOLOGY & BOSTON REV. 428 (1809) (reviewing the American Law Journal); 1 L. REP. 119 (1838) (reviewing the American Jurist and Law Magazine); Notices of Recent Publications, 1 WESTERN L.J. 80, 83 (1843) (reviewing the Law Reporter and the American Law Magazine); New Publications, 1 AM. L.J. 44 (1848) (reviewing the Western Law Journal). 27 See, e.g., Law Notices, 1 LOUISIANA L.J. no. 2 at 157, 158-60 (Aug. 1841) (en- dorsement letters from Justice Joseph Story and Chancellor James Kent). 28 See, e.g., Judge Story’s Argument, 1 AM. JURIST & L. MAG. 237 (1829); To Correspon- dents, 1 L. REP. 248 (1838) (thanking Judge Joseph Hopkinson for sending a “highly interesting opinion” that was eventually published in the April 1839 issue of the journal, 1 L. REP. 354); Joseph Story, Life of Chief Justice Marshall, 1 AM. L. MAG. 243 (1843) (“republished with [Story’s] approbation”).

194 12 GREEN BAG 2D The Original Law Journals

of Law and the Journal of Jurisprudence, the other journals found that the public friendship, and even the work product, of pillars of the bar was useless – or at least insufficient – when it came to attracting enough subscribers to keep a journal afloat. Even putting a pillar of the bar at the top of the masthead was not enough. That is what happened at the Jurist and Law Miscellany. William Cranch – the long-serving and widely respected chief judge of the U.S. Circuit Court for the District of Columbia and former reporter of decisions for the Supreme Court of the United States29 – was one of the founders and the lead editor of the journal. Despite (1) his place near the top of the professional pyramid (press cover- age of the journal noted his status, and his title and office were prominent on its cover),30 (2) his pedigree in law publishing, and (3) his entry into a market in which there was only one competing journal in the entire country,31 Cranch’s journal flopped as quickly and as completely as those launched by lesser figures.32 North Caro- lina Chief Justice John Louis Taylor had about the same measure of success with the Carolina Law Repository, bringing out two volumes between 1813 and 1816 before giving up the project.33

29 Clyde Willis, William Cranch, in 1 GREAT AMERICAN JUDGES 182-90 (John R. Vile, ed. 2003). 30 1 JURIST AND L. MISCELLANY no. 5 front cover (Aug. 4, 1834) (courtesy of the Special Collections Research Center, Gelman Library, George Washington Uni- versity; copy on file with the author); see, e.g., Quarterly List of New Publications, 41 N. AM. REV. 519, 520 (Oct. 1835); AM. MAG. OF USEFUL & ENTERTAINING KNOWLEDGE, Dec. 1, 1835, at 175. 31 According to Hicks, in 1834 the only other active law journal in the U.S. was the American Jurist and Law Magazine, in Boston. HICKS at 204, 207. 32 See notes 7-9 above, and accompanying text. 33 See Marshall De Lancey Haywood, John Louis Taylor, in 5 BIOGRAPHICAL HISTORY OF NORTH CAROLINA 402-06 (1906); HICKS at 204. Timothy Walker – known in some quarters as “America’s Blackstone” due to the commercial and critical success of his Introduction to American Law, Designed as a First Book for Students (1837) – kept the Western Law Journal in business from 1843 to 1853, but following an an- nouncement that “[t]he work will be continued if five hundred subscribers are obtained for the next year,” publication ceased. T. Walker & M.E. Curwen, Close of the Volume, 10 WESTERN L.J. 568 (1853); M. Paul Holsinger, Timothy Walker: Blackstone for the New Republic, 84 OHIO HIST. 145, 151-53 (Summer 1975).

WINTER 2009 195 Ross E. Davies

Why, when blessed with so much high-powered “encouragement” of the nonpecuniary sort, did the early law journals so consis- tently (and often quickly) fail? Why did subscribers apparently stay away in droves? Speculation abounds, as it has for a long time. In 1875, the Albany Law Journal opined: The history of legal journalism, in this country, might very well lead one to suppose that the profession was quite indiffer- ent to publications in its interest – for while many have, from time to time, sprung into existence, most of them have been short-lived. But this has been due rather to defects in the periodicals themselves, than to any fault of the profession. Many of them have been only reports of decisions under another name, and very poor reports at that; others have been conducted by incompetent persons, and again others, and perhaps most of them, owe their failure to lack of enterprise and energy on the part of their publishers, and a disinclination to expend upon them money.34 Alas, the editors in Albany offer no evidence to back up their in- dictment of editors and publishers elsewhere. Nor do they explain the extraordinarily durable exception in Philadelphia, the Legal In- telligencer (the journal founded in 1843 that is still in business). A more thorough study of the causes of failure among early law journals (content, management, marketing, financing, and so on) is beyond the scope of this article. However, a couple of preliminary speculations about a topic neglected by the Albany Law Journal – namely, competition – might be useful and cannot do much harm. After all, the interested parties save one have passed on, and that one (the Legal Intelligencer) has nothing to fear from the Green Bag. First, competition between law journals and other law journals. Contemporaries were concerned about it. Consider this note from the September 1830 issue of the United States Law Intelligencer and Review, yet another short-lived Philadelphia-based law journal: A weekly quarto periodical under the title of “The Jurispru- dent” has been commenced in Boston. A semi-monthly publi-

34 Current Topics, 11 ALB. L.J. 1, 1 (1875).

196 12 GREEN BAG 2D The Original Law Journals

cation in octavo form has also been recently issued in Philadel- phia, called “The Journal of Law,” which is edited by an association of gentlemen. Doubts have been suggested whether these periodicals, with those of the same nature already established, will meet with adequate support. For ourselves, we see no reason why they should not. Works of this nature, if conducted faithfully, cannot fail of being highly useful to the profession . . . .35 This was baseless wishful thinking, at least at the time it was published. The evidence up to that time suggested that even in the ab- sence of competition, no law journal could survive even in a city the size of Boston or Philadelphia.36 As Hicks points out, “From 1826 to 1829, no legal periodical was published in the United States, all of those previously started having come to an end.”37 As mid-century approached, however, experience would show that some cities could support one law journal, although perhaps not more than one. In Philadelphia, once all the other local law journals had fallen by the wayside, the Legal Intelligencer survived. And in Boston, the Monthly Law Reporter carried on until 1866, after its only competitor – the American Jurist and Law Magazine – went under in 1843.38 So, it may be that over the course of the first half

35 New Law Journals, 2 U.S. L. INTELLIGENCER & REV. 343 (1830). 36 These journals failed even in the most fertile soil, which for a law journal would mean a supply of interested lawyer-readers, which would in turn mean a major center of commerce, government, and, in particular, law practice. And it was not the case that these enterprises were struggling on the continental frontier. Of the 30 journals on Hicks’s list, nine were based in Philadelphia, nine in New York, three in Boston, and one each in Cincinnati, Columbia, Columbus, Nash- ville, New Orleans, and Raleigh. Of the remaining three journals on the list, one was in Burlington, New Jersey, roughly midway between Trenton and Philadel- phia; the other two – the Western Legal Observer in Quincy, Illinois, about 150 miles northwest of St. Louis, and the one and only student journal, based in rural Needham, Virginia – were the only ones with plausible claims to small-town, frontier status. See HICKS at 204, 207. Plus there was one, at least, in Washing- ton. See notes 7-9 above, and accompanying text. 37 See HICKS at 212. 38 See HICKS at 204, 207.

WINTER 2009 197 Ross E. Davies

of the 19th century inter-journal competition became not only a perceived survival factor, but also a genuine one. Second, competition between law journals and other legal publications. This was a weightier issue in the early 19th century than it has been in more recent times. During that period there was a great deal of overlap in the kinds of material that might appear in a law journal and what could be found in any of a variety of other publications – reporters, treatises, handbooks and guides, form books, pamphlets, general interest periodicals, even almanacs.39 Indeed, it is not always clear even to knowledgeable observers how some of these publications ought to be classified. Hicks, for example, treats the New York Judicial Repository, New York Legal Ob- server, and Code Reporter as law journals, while John Wallace (himself a Supreme Court reporter of decisions from 1863 to 1875) puts them on a list of New York “Practice and Miscellaneous Reports.”40 Similarly, Benjamin Swaim produced his The Man of Business; Or Every Man’s Law Book in 24 installments issued from July 1833 to October 1835. But he described the project as “intended to form a book of convenient reference” – not, apparently, a conventional ongoing periodical.41 Nevertheless, some libraries and commenta- tors classify The Man of Business as a law journal, rather than as a handbook or treatise.42 Thus, an early 19th century lawyer might well choose to purchase a case reporter series and expect those volumes to include some additional editorial content – essays, digests, jury charges,

39 See Swygert & Bruce, 36 HASTINGS L.J. at 751-55. 40 Compare HICKS at 204, with JOHN WILLIAM WALLACE, THE REPORTERS 581 (4th ed. 1882); see also, e.g., id. at 584 (Carolina Law Repository); Pennsylvania State Law and Regulations, 3 ANNUAL L. REGISTER OF THE U.S. 234, 237-38 (1821) (law journal classifying another law journal as a treatise); JOHN SIMMONS, GENTLE- MAN’S LAW MAGAZINE (1804) (a form book, not a periodical). 41 See 2 MAN OF BUSINESS title page (1834-35). 42 See, e.g., HICKS at 548; Glasier, 28 A.B.A. J. at 617; GUION GRIFFIS JOHNSON, ANTE-BELLUM NORTH CAROLINA: A SOCIAL HISTORY 795 (1937); WorldCat (visited Feb. 23, 2009).

198 12 GREEN BAG 2D The Original Law Journals

speeches, and the like.43 Or that lawyer might choose instead to subscribe to a law journal and expect not only editorial content, but also a substantial supply of reported cases.44 Some journals com- monly devoted many (in some cases most) of their pages to reporting judicial decisions and opinions, sometimes going so far as to openly aspire to head-to-head competition with established reporters of decisions.45 In light of the resulting potential for redundancy, however, our hypothetical lawyer might quite reasonably hesitate to shell out for both the journal and the reporters. And thus, law journals during this period probably fought not only each other for market share, but also a wide range of other publications.

OBSCURITY hatever the genuine causes of failure may have been, the Wdestruction they wreaked on the early law journals was nearly complete. They are buried deep. Not only have many of them nearly disappeared in the physical, ink-on-paper-bound-in- buckram sense, they have also failed to make an appearance on the modern electronic stage. Anecdotal evidence (that is, results of searches in leading data- bases of legal publications) suggests there is little demand for these old journals among modern judges, practitioners, and scholars: • The Westlaw “All Federal & State Cases (ALLCASES)” database shows that since 1834 there has been one reported citation to Cranch’s Jurist and Law Miscellany, and that was in an argument of counsel.46 • The LexisNexis “Law Reviews, CLE, Legal Journals & Periodi- cals, Combined” database contains not a single citation to or mention of the American Themis.

43 See, e.g., Appendix, 18 U.S. (1820); Appendix, 17 U.S. (1819); A General Digested Index, 7 Johns. Ch. (1823); Appendix, id. 44 See generally, e.g., 1-27 L. REP. (1838-66); 1-6 N.Y. CITY HALL REC. (1816-22). 45 See, e.g., 1 JURIST AND L. MISCELLANY no. 5 back cover (Aug. 4, 1834). 46 Doe ex dem. Hill v. Leonard, 5 Ill. 140, 141 (Ill. 1842) (citing August 1835 issue).

WINTER 2009 199 Ross E. Davies

• The formidably comprehensive HeinOnline “Law Journal Li- brary” includes only 12 of the 30 journals on Hicks’s list. There are plenty of additional anecdotes where these came from, and the results are depressingly similar.  e should not make too much of these small tragedies. The Wl egal publishing business has always been tough, yet the American lawyer has not been utterly without recourse to a home- grown law journal since 1829.47 And it has always been the case that even excellent publications sometimes do not survive: the original Green Bag near the turn of the 19th century to the 20th, Legal Affairs at the turn of the 20th to the 21st, and many more.48 But to claim that there was and is no support at all for those early journals, or that they were and are of absolutely no consequence, would be to claim too much. In their time they served their readers, however few and however briefly.49 And today librarians and archivists are preserving the surviving hard copies; HeinOnline, Google Books, ProQuest, and other on-line services are gradually making them more accessible than ever before; and a few lawyers and historians still do study them from time to time. The modern Green Bag is doing its part, too. See pages 201-217 below for the complete first issue of Philadelphia’s remarkably readable original Journal of Law.

47 “By the middle of the [19th] century, conditions had become very favorable to the development of periodicals,” due in large part to improvements in distribution networks, special low postal rates for periodicals, and developments in intellec- tual property law. “It cannot be said, however, that legal periodicals from 1850 to the present have been notable for their longevity.” HICKS at 203-04, 512 et seq. 48 See Arthur W. Spencer, Valedictory, 26 GREEN BAG 553 (1914); About Legal Affairs, www.legalaffairs.org/aboutus/index.msp (visited Feb. 11, 2009). 49 See Max Bloomfield, Law vs. Politics: The Self-Image of the American Bar (1830-1860), 12 AM. J. LEGAL. HIST. 306 (1968).

200 12 GREEN BAG 2D

THE JOURNAL OF LAW

“IGNORANCE OF THE LAW EXCUSETH NO MAN.”

Conducted by an Association of Members of the Bar†

N PRESENTING TO OUR FELLOW CITIZENS the first number of a new work, it is proper to state the views and purposes with which it has been undertaken. It is always important that the inhabitants of a country Ishould possess a general knowledge of the laws by which they are governed, and especially of those regulations which affect them in the pursuit and transaction of their ordinary business. In the United States, where the people exercise so controlling an influence on legislation, it is emphatically necessary that they should be, to the great- est attainable extent, instructed in the philosophy of general jurisprudence, and in the state and leading principles of our own. Unless such instruction be widely diffused, what is good in our system cannot be secure from innovation; what is evil cannot be properly amended. It is believed too, that any effort must be deserving of encouragement, which may tend to produce a greater degree of uniformity in the regulations of the different states, on those subjects which are not of merely local interest. In our private intercourse and relations of business, or otherwise, we are one people, while as far as regards

† Editors’ note: This is the first issue of the Journal of Law, published in Philadelphia on July 7, 1830. The star paging indicates page breaks in the original. The last issue of the journal directs, “All communications relative to the Journal of Law . . . to the Literary Rooms, No. 121, Chesnut street; Henry H. Porter, Proprietor.” 1 J.L. 384 (June 22, 1831).

12 GREEN BAG 2D 201 Members of the Bar the laws by which our conduct and contracts are for the most part regulated, we form twenty-four distinct communities, in each of which a rule of action is prescribed, differing more or less from that which prevails in any one of the others. Inconvenience from this source, to a certain extent, is already felt; and unless the dissimilari- ties and contradictions of our respective codes be prevented from increasing, inconvenience to a much greater extent must be expected. [*2] In endeavouring to be useful we desire to be entertaining also, and have therefore embraced in our scheme the introduction of a suitable quantity of the lighter matter which is usually found in the pages of a literary journal. Our aim will be to afford to our readers instruction without tediousness, and amusement without frivolity. The Journal of Law addressing itself to the People of the United States, will be principally devoted to the exposition, in popular language, of the philosophy, history, and actual state of law and government in different countries – of our own constitutions, state and national – laws, civil and criminal – judicial systems and modes of procedure – together with particular essays on those branches of the law, a knowledge of which may be most practically useful to men engaged in active pursuits; as for instance, the law of corporations, patents, insurance, bills of exchange, and commercial and other contracts, in all their varieties, real estate, with the modes of con- veying it, insolvency, wills, descents, intestacy, &c. &c. &c. We shall endeavour always to inculcate those principles of sound morality, the preservation of which is the legitimate purpose of all laws, though it is to be feared that no existing system is, in all its parts, exactly adapted to that purpose. Defects in the principles, provisions and administration of our own, shall be candidly and fearlessly noted. Reports of interesting decided cases, biographies of eminent lawyers and others, medical jurisprudence, sketches of the legal, literary and benevolent institutions of various countries, anecdotes, and the various topics of general literature will be considered within the scope of this Journal.

202 12 GREEN BAG 2D The Journal of Law

To our professional brethren in the different states, we appeal with confidence, for assistance in the present undertaking. Ar- rangements have been made for procuring aid from competent persons in the various quarters of the union, and the liberality of the publisher enables us to offer to distant contributors, a suitable re- muneration for their labours.1[*3]

CODIFICATION – REVISION OF STATUTES e are not among the number of those, who would exalt the Wcommon law, “as the perfection of human reason.” While we would fully investigate its merits, for the purpose of remedying its defects, we would not prosecute the inquiry, had we no view, other than that of pulling down a venerable system, which experience, the surest test of the wisdom of all things, has, during ages, demonstrated to be admirably adapted to meet the wants of society; accommodating itself with a happy facility, to the various exigencies produced by activity and enterprise, and adequately protecting life, liberty and property. It is not a bad maxim, to “let well enough alone.” Too much legislation has been well said to be worse than none at all; and perhaps the example of our own country has af- forded additional reason to yield full belief to the truth of this posi- tion. Much as may be said “of the glorious uncertainty of the law,” we would ask, whether vastly more has not been said on the subject than is warranted by truth. The modern rage is in favour of codification or generalization. Within just limits, regulated by wise heads, and conducted with great caution, there are many branches or departments of the law, where we are ready to admit, much benefit may result from revision and systematic reorganization. The subject is, however, both delicate and dangerous. The effects of the present system we understand tolerably well. Where particular mischief is discovered, we possess the means of remedying it, by suitable legis-

1 The Journal of Law will appear in numbers of 16 pages each, octavo, on the first and third Wednesdays of every month, at the Office of the Journal of Health, 108 Chesnut Street, Philadelphia. Price $1.50 per annum, payable in advance. J. DOBSON, Agent for the Proprietor.

WINTER 2009 203 Members of the Bar lation. But no human foresight is long enough – no human wisdom is deep enough, to discover what will be the operation and influence of any new general code. Among the arguments in favour of the laws as they now exist, not the least powerful is this – that they are familiar to the people, who have long acquiesced in them, and have accommodated themselves, their contracts and their business to their provisions. It is an easy thing to pull down that which it has taken many years to erect; the rust of antiquity affording no protec- tion against the modern passion for innovation. We conceive ourselves to be truly a wise generation. Easy as it is to destroy, it is far more difficult to build up – to replace by a better system, a theo- retical perfection, that which has been discarded as no longer suitable for the more liberal, enlightened and advanced [*4] state of modern society. The construction of a single law cannot be clearly foreseen, even by the law makers, at the time of its enactment. How many statutes have been framed which have counteracted the very end they were designed to promote? If this be true of a single statute, how much more forcible is the reasoning, when applied to a whole system. While we would, with all our power, uphold these general views, we wish not to be considered as the enemies of reform. Every thing which time has shown to be unwise, we would remedy. Every thing which the march of mind has manifested to be good, we would adopt. But we would not entirely abandon the navigation of those ancient seas which we have long found to be safe, and enter on an ocean whose shoals and hidden rocks no mari- ner has discovered, whose depths no line has fathomed. While therefore, we dread any thing like an indiscriminate attempt at codification, we cannot perceive that our remarks will apply to a revision of the statute law of our country. From its peculiar situation many laws have been enacted at different and distant times, by distinct legislatures, for the purpose of repairing particular evils and of supplying deficiencies. These laws, it almost necessarily follows, are often inconsistent with each other, and difficult to reconcile. We cordially approve those acts which have been passed, making provi- sion for the speedy accomplishment of an object so desirable as their revision, by eminent and learned men. The labours of such men will

204 12 GREEN BAG 2D The Journal of Law have a tendency to restore beauty, and to give harmony to a system, now too much marred and defaced, by at times hasty and ill judged legislation. MARKS OF A GOOD JUDGE t was remarked by Selden, that there could be no mischief done Iin the commonwealth without a judge. This is true in the main, for where the laws are administered with justice, promptness and impartiality, the remedy for the evils produced by the vices, pas- sions or irregularities of men, is always at hand, and the knowledge of this tends to keep those causes of moral evil in check. On the contrary, when the judges are indolent, of [*5] small learning, or want courage and honesty, the law becomes the very reverse of what it ought to be, and is a shelter to those who offend, a terror to those only who have occasion to require its aid. Bacon in his advice to Sir George Villiers, says, Because the life of the laws lies in the due execution and administration of them, let your eye be, in the first place, upon the choice of good judges. These properties had they need to be furnished with: to be learned in their profession; patient in hearing; prudent in governing; powerful in their elocution to persuade and satisfy both the parties and hearers; just in their judgments; and to sum up all, they must have these three attributes; they must be men of courage, fearing God, and hating covetousness; an ignorant man cannot, a coward dares not be a good judge. And again;– If any man sue to be made a judge, for my own part, I should suspect him; but if either directly or indirectly he should bargain for a place of judicature, let him be rejected with shame. So much for the selection of judges. Of the rules which should govern their conduct on the bench, we have never seen a better summary than the following, which is given by the writer already quoted, in his address to Justice Hutton. To represent unto you the lines and portraiture of a good judge: The first is, that you should draw your learning out of your books, not out of your brain.

WINTER 2009 205 Members of the Bar

2. That you should mix well the freedom of your own opinion, with the reverence of the opinion of your fellows. 3. That you should continue the studying of your books, and not to spend on upon the old stock. 4. That you should fear no man’s face, and yet not turn stout- ness into bravery. 5. That you should be truly impartial, and not so as men may see affection through fine carriage. 6. That you should be a light to jurors to open their eyes, but not a guide to lead them by the nose. 7. That you affect not the opinion of pregnancy and expedition, by an impatient and catching hearing of the counsellors at the bar. 8. That your speech be with gravity, as one of the sages of [*6] the law; and not talkative, nor with impertinent flying out to show learning. 9. That your hands, and the hands of your hands, I mean those about you, be clean and uncorrupt from gifts, from med- dling in titles, and from serving of turns, be they of great ones or small ones. 10. That you contain the jurisdiction of the court within the ancient Merestones, without removing the mark. 11. Lastly, that you carry such a hand over your ministers and clerks, as that they may rather be in awe of you, than pre- sume upon you.

JUDICIAL LEGISLATION udicial legislation has at times occurred in the history of the law, Jand has invariably provoked just animadversion. In all countries, where a regard is manifested for the principles of freedom, and especially in our own, it has been regarded of paramount importance, that the line of separation should be strongly marked between the executive, legislative and judicial departments of government. There is, however, an apology for the assumption of prerogative by the judiciary, to which neither of the other two departments can lay claim.

206 12 GREEN BAG 2D The Journal of Law

Were the executive to attempt the passage of a law, or the construction of an act of Congress, to rule thereby a controversy between citizens; or, were the legislature to erect itself into a high court of appeal, for the correction of the errors of the judiciary, the general voice would condemn, and the general power punish the assumption. No excuse could be found, arising from the intimate connexion of the two branches; it could not be argued, that the boundaries of the provinces approached so close, that an incautious or negligent step had inadvertently passed the line. There is no si- militude between the authority which makes or executes, and that which construes the laws. Let it, however, by no means be inferred, that we mention the excuse which the judiciary may plead, as any justification for the judges, when they do assume legislative powers. The error arises from the peculiar nature of the common law. [*7] Undoubtedly, that law has the property and the merit of adapt- ing itself to the varying wants of man, and to the changes produced by time in the situation of a people: and the judges will in many in- stances in administering its functions, find it difficult to distinguish the gradual, yet legitimate expansion of its provisions, from the formation of an entirely new rule of action. What to one may appear but the necessary consequence of some previously well settled maxim, the reason of which would apply to and direct a new com- bination of circumstances, to another might seem a clear usurpation of the exercise of the sovereign power of the state – that of making the laws. Distinguished men have differed upon this point; while some have held with Lord Mansfield, the almost infinite expansibil- ity of the common law, with others “stare decisis,” has been the guide and limit of their decisions. However our readers may think upon this important point, we trust that all will agree in an opinion of the impropriety of a legislative judgment. The idea of the legislature constituting itself a tribunal for the correction of the errors and reversion of the judgments of the regu- lar courts of the country, is one we can scarcely realize. It has in it as much of the ludicrous as the terrible. The decision of a knotty point of law by a body of men, most of whom have never turned their attention to the subject, in the slightest degree, can only be

WINTER 2009 207 Members of the Bar performed by cutting the Gordian knot with the legislative sword, for its intricacies can never be unravelled. For we hold, that if any science demand from its votaries, a life of untiring patience, and unwearied assiduity to attain proficiency, it is the law. And that same legislative sword may sunder rights secured, if any thing can be secured, and rendered sacred by the voluntary acquiescence of centuries. The distinction is at once perceived between the formation of laws, to stand as the rule of future actions, or the construction by affirmative statutes of past regulations, which are in nowise to affect by-gone transactions, and the authoritative declaration of what the law is, in opposition to the deliberate judgment of the tribunal whose province it is to pass upon the subject; which declaration is most injuriously to affect privileges secured by and arising under provisions in full force at the time of the formation of the contract. We have always held as axioms the following propositions. [*8] That the constitution, based upon certain great truths, is the ex- pressed will of the people, and that the three departments of the government are but different organs to execute that will in the manner and with the limitations prescribed by the charter. That the Omnipotence of the legislature is with us an unintelligible phrase. That a law, therefore, passed by that body may be void, when it contravenes the provisions of the constitution. That the divesting a vested right or declaring that one shall not enjoy a right, to which he was fully entitled by the laws in force at the time his contract was formed, (which laws derive their whole validity from the voluntary acquiescence of the people,) by the passage of a law after the facts occurred, which originated that right, is a violation of the constitution. It may be thought a waste of time to record these truths; as plain, however, as they appear, some of them do not meet the approbation of all. It is instantly perceivable how a course of legislation, such as we have adverted to, would open a door to injustice of every kind. If it were once known that our causes were not to be decided in our courts, and that a decision of a point of law by the supreme court

208 12 GREEN BAG 2D The Journal of Law would not settle a litigated right, but that the way was still open to a judgment by the legislature, in the form of an act, declaring what the law should be in regard to cases then pending, frightful would be our situation. No law would be fixed – no principle certain – the records and evidences of the law, would become valueless and de- prived of all their sanctity, and the citadel of man’s rights, guaran- teed and defended the constitution of our country, would fall at once before the breath of the legislative trumpet.

CONSTRUCTIVE CRIME rimes ought to be defined with such clearness, and accuracy, C that none may be deceived. There should exist no subtle re- finements, no unmeaning distinctions, no technical jargon, to puzzle and mislead; but all should be so plain, that no offender may urge in extenuation of his crime, that he erred through ignorance, being led astray by the vagueness and incomprehensibleness [*9] of the law. It cannot be expected that any but the educated lawyer, should com- prehend the laws which regulate real estate, descents, matters generally of property, and rights merely civil. To understand these, hard study, great learning, and deep thought are requisite. It is not important that it should be otherwise. But where the liberty or the life of the citizen is involved, it is widely different: In every country which professes to guard these with a watchful and jealous eye, they should never be exposed to the hazards of construction, which must be always doubtful, and liable to vary, with the variety of tempera- ment, disposition and mind of different judges. The citizen should feel that he may walk securely, and that he is not in danger of the sword of justice, unless he wilfully expose himself to its keen edge by his guilt. In arbitrary governments it may be fit that the intricacies of the criminal law should resemble the perplexed windings of a labyrinth, and that involved in the mazes of its obscurity, the subject should wander constantly exposed to the tyrannical exercise of power. We regret, that in this country, we cannot claim an entire exemption from the doctrine of constructive crime. Some of the distinctions growing out of it are so purely artificial and so truly unreasonable, that none unless well imbued with prejudice, will

WINTER 2009 209 Members of the Bar maintain or defend them. The doctrine of constructive larceny strongly illustrates the view we take of this subject, to which we shall probably recur hereafter. If a man obtain a horse, from a keeper of a livery stable, under the pretext of hiring him for a day, but at the time, fraudulently in- tending never to return the horse, and he be subsequently caught and arrested, he can be indicted, tried and punished as a thief. If another man obtain a horse in like manner, with only this dif- ference, that he get possession of him, under the pretence of buying him, such man will be guilty only of a breach of contract, and will not be liable to be indicted, tried or punished as a thief. Hence, it will appear that to play the rogue with safety, not only cunning is required, but no small degree of shrewdness and knowledge. Dr. Johnson could not call this “a distinction without a differ- ence.” [*10] CLAUDE DU VALL his celebrated highwayman was born at a place called Dom- T front, in Normandy. His father was a miller, and his mother the daughter of a taylor. By these parents, he was brought up strictly in the Roman Catholic religion, and his genius was culti- vated with as much learning as qualified him for a footman. Neither father nor mother took any notice of young Claude, after he was about thirteen years of age. Perhaps their circumstances might then oblige them to send him abroad to seek his fortune. His first stage was at Rouen, the capital city of Normandy, where he fortunately met with post horses, to be returned to Paris, upon one of which he got leave to ride, by promising to help to dress them at night. At the same time falling in with some English gentlemen, who were going to the same place, he got his expenses discharged by those generous travellers. They arrived at Paris in the usual time, and the gentlemen took lodgings in the fauxbourg St. Germain, where the English at that time generally quartered. Du Vall was willing to be as near as possi- ble to his benefactors, and by their intercession he was admitted to run on errands, and do the meanest offices at the St. Esprit, in the

210 12 GREEN BAG 2D The Journal of Law

Rue de Bourchiere; a house of general entertainment, something between a tavern and an ale-house. In this condition he continued till the restoration of king Charles II. in 1660; at which time multi- tudes of all nations flocking into England, among them came Du Vall, in the capacity of footman to a person of quality. The universal joy on the return of the royal family, made the whole nation almost mad; every one ran into extravagances, and Du Vall, whose inclinations were as vicious as any man’s, soon became an extraordinary proficient in gaming, drunkenness, and all manner of debauchery. The natural effect of these courses is want of money; this our adventurer experienced in a very little time, and as he could not think of labouring, he took to the highway to support his irregularities. In this profession he was within a little while so fa- mous, as to have the honour of being named first in a proclamation for apprehending several notorious highwaymen. And here we have reason to complain that our informations are too short for our assistance in writing [*11] the life of such a celebrated offender. How- ever, such stories as have been delivered down to us, we shall give our readers faithfully, and in the best manner we are able. He had one day received intelligence of a knight and his lady, that were travelling with four hundred pounds in their coach. Upon this he took four or five more along with him, and overtook them on the road. The gentry soon perceived they were like to be beset, when they beheld several horsemen riding backwards and forwards, and whispering one another; whereupon the lady, who was a young sprightly creature, pulled out a flageolet, and began to play very briskly. Du Vall took the hint, and played excellently well upon a flageolet of his own, in answer to the lady, and in this posture made up to the coach door. “Sir,” said he to the knight, “your lady plays charming, and I make no doubt but she dances as well; will you please to step out of the coach, and let me have the honour to dance one courant with her on the heath?” “I dare not deny any thing sir,” the knight replied, “to a gentleman of your quality and good behaviour; you seem a man of generosity, and your request is perfectly reasonable.” Immediately the footman opened the door, and the knight came out; Du Vall leaped off his horse, and handed the lady

WINTER 2009 211 Members of the Bar down. It was surprising to see how gracefully he moved upon the grass; scarce a dancing master in London, but would have been proud to have shown such agility in a pair of pumps, as Du Vall showed in a great pair of French riding boots. As soon as the dance was over, he waited on the lady back to the coach, without offering her the least affront; but just as the knight was stepping in, “sir,” said he, “you have forgot to pay the music.” His worship replied, that he never forgot such things, and instantly put his hand under the seat of the coach, and pulled out a hundred pounds in a bag, which he delivered to Du Vall, who received it with a very good grace, and courteously answered: “Sir, you are liberal, and shall have no cause to repent your being so; this hundred pounds given so generously, is better than ten times the sum taken by force; your noble behaviour has secured you the other three hundred pounds, which you have in the coach with you.” After this he gave him his word, that he might pass undisturbed, if he met any more of their crew; and then very civilly wished them a good journey. [*12] Another time, as Du Vall and some of his companions were pa- trolling upon Blackheath, they met with a coach full of ladies. One of them had a young child in her arms, with a silver sucking bottle. The person appointed to act in this adventure, robbed them very rudely, taking away their money, watches, rings, and even the poor baby’s sucking bottle. The infant cried, as was natural on such an occasion, and the ladies entreated him only to return the bottle; but the surly thief refused to give an ear to their request, till Du Vall observing that he staid longer than ordinary, rode up, and de- manded what was the matter. The ladies, hereupon, renewed their petition in behalf of the child, and Du Vall threatened to shoot his companion, unless he restored what they required – adding these words: “Sirrah, can’t you behave like a gentleman, and raise a con- tribution, without stripping people; but perhaps, you had some occasion for the sucking bottle, for by your actions one would imagine you were hardly weaned.” This sharp reproof had the desired effect; and Du Vall took his leave of the ladies in a courteous manner. A little after the above mentioned action, another lucky turn in Du Vall’s favour happened, as much as that to his advantage. In the

212 12 GREEN BAG 2D The Journal of Law course of his rambles, he came into the Croup Inn, in Beaconsfield, where he heard great singing, dancing, and playing upon the haut- boy and violin. He instantly inquired into the reason of it, and found that there was a wake or fair kept there that day, at which there were present most of the young men and maids for several miles about. This, he thought, was a promising place; and, therefore, he set up his horse for that evening, went into the kitchen, and called for a pint of wine. Here he met with an old rich farmer, who had just received a hundred pounds, tied it up in a bag, and put it into his coat pocket. Du Vall was very attentive to all that passed, and by this means he heard the farmer tell an acquaintance what money he had about him, which our sharper immediately set down for his own; more especially did he depend upon it, when the countryman asked leave to go into the room where the music was, to see and hear the diversions. It was his next business to ask the same favour, which he as easily obtained, and very innocently to all appearance, entered to see the country dancing, making an apology to the company when he came in, and telling [*13] them that he hoped it would be no offence. They replied as courteously, that he might stay there and welcome. His business now was more to watch the old farmer’s bag of money, than to mind the diversions of the young people; and after considering for some time, for a way to execute his design in the most dexterous manner, he observed a chimney with a large funnel, which he thought would favour his project. Having contrived the whole affair, he went out and communicated it to the hostler, who, being a downright rascal, consented for a reward of two guineas, to assist him. He was to dress up a great mastiff dog in a cow hide, which he had in the stable, placing the horns directly in his fore- head, and then by the help of a ladder and a rope, to let him down the chimney. All this he performed while the company were merry in the chamber. Du Vall being returned from the yard, the dog, howling as he descended, came down the chimney, and pushing among them in this frightful manner, they were all put into a hurry and confusion. The music was silenced, the table withdrawn, and the drink spilt; the people all the while screaming and crowding

WINTER 2009 213 Members of the Bar down stairs as fast as they were able, every one struggling to be foremost, as they supposed the devil would unavoidably take the hindmost. Their heels flew up, and the pipe and the fiddle were trod to pieces. While they were in this condition, the supposed devil made his way over them all, and got into the stable, where the hostler instantly uncased him; so that when the company came to examine the matter, as they could hear no more of him, they con- cluded he was vanished into the air. Now was the time for Du Vall to take care of the farmer’s hundred pounds, which he very easily did by diving into his pocket. As soon as he had got the money, he took horse, and spared neither whip nor spur, till he came to London, where he thought himself safe. One time Du Vall met with Roper, master of the buck-hounds to king Charles II as he was hunting in Windsor forest. As their ren- contre happened in a thicket, Du Vall took the advantage of the place, and commanded him to stand and deliver his money, or else he would shoot him. Mr. Roper, to save his life, gave our adventurer a purse full of guineas, containing at least fifty, and Du Vall afterwards bound him neck and heels, fastened his horse by him, and rode away across the country. [*14] But the proclamation, which we spoke of at the beginning of this life, and the large reward that was promised for taking him, made Du Vall think it unsafe to stay any longer in England; whereupon he retired into France. He had not long been here before he relapsed into his old disease, want of money, which obliged him to have recourse to his wits again. He had an uncommon talent at contriv- ance, particularly at suiting his stratagems to the temper of the person they were designed to ensnare, as the following instance will prove. A learned Jesuit, who was confessor to the French king, was as much noted for his avarice, as he was for his politics; by which lat- ter, he had rendered himself very eminent. His thirst for money was insatiable; and though he was exceeding rich, his desires seemed to increase with his wealth. It came immediately into Du Vall’s head, that the only way to squeeze a little money out of him, was to

214 12 GREEN BAG 2D The Journal of Law amuse him with the hopes of getting a great deal, which he did in the following manner. He dressed himself in a scholar’s garb, to facilitate his admittance into the miser’s company, and then waited very diligently for a proper time to make his address, which he met in a few days. Seeing him alone in the piazza of the Fauxbourg, he went up to him very confidently, and said: “May it please your reverence, I am a poor scholar, who have been several years travelling over strange countries, to learn experience in the sciences, purely to serve my native country, to whose advantage I am determined to apply my knowledge, if I may be favoured with the patronage of a man so eminent as yourself.” “And what may this knowledge of your’s be?” replied the father: “if you will communicate anything to me, that may be beneficial to France, I assure you no proper encouragement shall be wanting on my side.” Du Vall, emboldened by this answer, pro- ceeded: “Sir, I have spent most of my time in the study of alchymy, or transmutation of metals, and have profited so much at Rome and Venice, from great men learned in that science, that I can change several base metals into gold, by the help of a philosophical powder, which I can prepare very speedily.” The father confessor appeared elated with joy at this relation: “Friend,” said he, “such a thing as this will be serviceable indeed to the whole state, and peculiarly grateful to the king, who, as his affairs go at present, stands in some need of such a curious [*15] in- vention. But you must let me see some experiment of your skill, before I credit what you say so far as to communicate it to his maj- esty, who will sufficiently reward you, if what you promise be demonstrated.” Upon this he conducted Du Vall home to his house, and furnished him with money to build a laboratory, and purchase such other materials as were requisite, in order to proceed in this invaluable operation, charging him to keep the secret from every person, as long as he thought proper; which Du Vall promised to perform. The utensils being fixed, and every thing in readiness, the Jesuit came to behold the wonderful operation. Du Vall took several metals and minerals of the basest sort, and put them into a crucible, his

WINTER 2009 215 Members of the Bar reverence viewing every one as he put them in. Our learned al- chymist had prepared a hollow stick, into which he had conveyed several sprigs of pure gold, as black lead is in a pencil. With this stick he stirred the preparation as it melted, which with its heat melted the gold in the stick at the same time; so that it sunk imper- ceptibly into the vessel. When the excessive fire had consumed in a great measure all the lead, tin, brass, and powder, which he had put in, the gold remained pure to the quantity of an ounce and a half. This the Jesuit caused to be assayed, and finding that it was really fine gold, he was immediately so devoted to Du Vall, and blinded with the prospect of future advantage, that he believed every thing our impostor could say, still furnishing him with whatever he de- manded, in the hope of being at last made master of this extraordinary secret; the whole fame as well as profit, of which, he did not question would redound to him, as Du Vall was but an obscure person. The confessor was as open as Du Vall could wish. He showed him all his treasure, and among it, several rich jewels, which he had received as presents from the king, hoping by these obligations to make him discover his art the sooner. In a word, he grew by de- grees, so importunate and urgent, that Du Vall began to apprehend a too close inquiry, if he denied the request any longer: And, therefore, he appointed a day when every thing was to be communicated. In the mean time, he took an opportunity to steal into the chamber where all the riches were deposited, and where his reverence generally slept after dinner, and finding him at that time fast asleep, with his mouth wide open, he gagged and bound him, then took his keys, and hoarded [*16] as much of his wealth, as he could conven- iently carry out unsuspected; and thus bade farewell to both him and France. Du Vall had several other ways of getting money, besides those already mentioned, particularly by gaming: no man living could slip a card more dexterously than he, nor better understood all the ad- vantages that could be taken of an adversary; yet, to appearance, no man played fairer. He was remarkable for laying wagers, and no less successful in

216 12 GREEN BAG 2D The Journal of Law this particular, than any of the former. He made it a great part of his study to learn all the intricate questions, deceitful propositions, and paradoxical assertions, that are made use of in conversation. How long Du Vall followed his vicious courses in England, after his coming from France, before he fell into the hands of justice, is uncertain. At length he was taken when drunk, at the Hole-in-the- wall, in Chandos street, committed to Newgate, arraigned, con- victed, condemned, and (on Friday, the 21st day of January, 1669- 70,) executed at Tyburn, in the 27th year of his age. Crowds of ladies, among whom were many of rank, visited him in prison, and interceded for his pardon: And not a few accompa- nied him to the gallows, under their vizards. After he had hung the usual time, he was cut down, and, by well dressed persons, conveyed into a mourning coach. In this he was carried to the Tangier Tavern, at St. Giles’s, where he lay in state that night. The room was hung with black cloth, the hearth covered with escutcheons, eight wax tapers were burning, and as many tall gentlemen attended with long cloaks. All was in profound silence, and the ceremony would have lasted much longer, had not one of the judges sent a messenger to interrupt the pageantry. [Cel. Trials.

______

E. LITTELL, N.W. corner of Seventh and Chesnut streets, has constantly for sale, Reports of Cases in the Supreme Court of Pennsylvania; by William Rawle, Jr. Charles B. Penrose, and Frederic Watts, Counsellors at Law. Vol. I. No. 1. NICKLIN & JOHNSON, Law Booksellers and Publishers, No. 175, Chesnut Street, have constantly for sale, a large stock of Law Books. The fourth volume of Kent’s Commentaries, which has recently been published, completes, it is understood, the labours of the venerable author, for the present at least. The work thus finished will be useful not merely to professional men, but to every citizen who may wish to possess such a knowledge of the laws of his country, as his interest as well as duty requires. Agents for the Journal of Health, are requested to receive subscriptions for this work. Postage the same as Newspapers.

WINTER 2009 217