
CASE 1.
“The case upon which our decision is expected, is as follows:
A. advertises a reward for the recovery of goods lost: B. finds
them; can B. retain those goods, until the reward is paid? On
the one hand it is insisted that the finder may detain the goods
until he shall receive the reward. On the other hand it is main-
tained that by so doing, the finder becomes liable to an action of
trover and conversion. This is a question on which I cannot give
my opinion without much doubt and hesitation. The case in-
deed very frequently occurs to common experience; but I have
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not discovered that it has ever underwent a judicial examination
in the courts of law: and I cannot help thinking that the authori-
ties cited to support the opinions respectively advanced, are con-
nected with our present subject by a distant and imperfect anal-
ogy, rather than by direct implication; that they are calcula-
ted to puzzle and confuse, rather than to aid and confirm the
judgment.
“That the finder is justified in detaining the goods until he re-
ceives the reward for finding them, is an opinion supported by
natural equity, if not by positive law, and extremely agreeable to
the common sense of mankind, who will always prefer the secu-
rity for the owner's compliance with the contract in their own
hands, to the dilatory and uncertain remedy of the law; which
the mean and interested have in their power to make no remedy
at all. The finder may be intimidated by the threats of the
owner, or the consciousness of his inability to hold them,
against what he supposes to be the law; he will deliver them up
on demand, but by so doing he will justly incur the censure of
egregious folly, from those who are likely ever to be in the same
predicament. On every subject of dispute where the natural
equity of the thing is in question, the common and uniform sen-
timent of mankind is a standard less liable to confusion and
uncertainty than any other. I need not remark that every man
in the situation of B. the finder of these goods, would act in the
manner supposed in the present case, and think himself justi-
fied in so doing by every principle of reason and natural equity.
In this persuasion as an individual I would very fairly acquiesce:
and the singularity of this case with respect to those hitherto
controverted in the courts of law, would I presume justify a
similar decision in the quality of judge. Besides adjudged ca-
ses, the advocates for this opinion, that the owner is entitled to
an action of trover, I have had recourse to the descriptions
given of this action in the books of law;* these declare in the
most explicit terms, that this action lies against him who has the
goods of another in possession, and converts them to his own
use. Now as it is not the trover that is the means by which
the defendant came into possession, but the subsequent conver-
* 3d Black. 152. Wood's Insti. 539. Bac. Ab. tit. trover, &c.
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sion that constitute the injury, for which the remedy is given;
it is clear that sufficient evidence must be brought to prove such
conversion in the defendant, or the plaintiff's action is lost. But
it is said, a demand made, and a subsequent refusal, is sufficient
evidence of a conversion. This case supposes a demand made
and a subsequent refusal; what hinders then why the owner
should not have his action against the finder.
“I am of opinion that the demand and refusal here made, are not
sufficient evidence of a conversion: it is indeed a doctrine gene-
rally held, that demand and refusal is sufficient evidence of
conversion. But it is by no means the intention of the law, that
this rule should prevail in all cases indiscriminately. In the
same page wherein Sir William Blackstone tells us that the law
will deem the finder's refusal as a conversion; he also tells us, that
to support the action a conversion must be fully proved. How
many circumstances might the dullest fancy suggest, sufficient
to justify a refusal, notwithstanding the demand of the owner.
It is expressly said,* that though a demand and denial may be
evidence of a conversion, yet that of itself it is not a conversion.
Indeed in those cases where the doctrine is laid down in the
most positive and unlimited manner, we may assent to the jus-
tice of the reasoning upon which it is founded; and at the
same time consider it as totally unapplicable to the present case.
A rule designed to be general and to comprehend a great variety
of cases, cannot be applied in its full extent to every particular
subject. That the reasonings in 1 Viner. Abr. 241, where this
subject is discussed pretty largely, were intended to be confined
to such cases wherein the refusal of the finder is evidently sug-
gested by sinister views, appears both from a case which pre-
cedes it in the same page, and from the words subjoined to the
case itself, viz. but if it be found specially, it shall not be ad-
judged a conversion. The meaning of which I apprehend is
this; that where certain circumstances appear of a palliating na-
ture, and which tend to show that the detention of the goods
proceeded from innocent though perhaps mistaken notions of
right; in short whenever it appears that the defendant's intention
was not to convert those, a conversion shall not be presumed.
* 1 Viner. Abr. 24.
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The opinion of Holt, Ch. J. in 2 Salk. 654 p. 2, is express, that
persons saving goods which had been cast away, might detain
them until paid for their pains.
“I am therefore clearly of opinion, that an action of trover and
conversion will not lie against the finder of these goods. Of an
action of detinue, though now generally disused, the owner may
perhaps avail, as the injury alledged to be done to the plaintiff
consists in the detaining, and not the original taking; although
the conformity of the present case to the description of detinue
to be found in Blackstone may very well be doubted, since it is
not the mere detainure which entitles the plaintiff to this reme-
dy. But at all events, I consider the public notification of the
owner's intention to reward the finder of his goods, as an express
assumpsit, by which the finder is entitled to an action on the
case.”
CASE 2.
“A woman upon the supposition of her husband's death, acts in
the capacity of a single woman; purchases lands in her own
name, devises them and dies; after whose death the husband
contrary to expectation, proves to be still living, and returns. The
question naturally arising upon these points is, whether the de-
vise, and of consequence all other acts committed during her
supposed widowhood, are good in law. A question, our deci-
sion upon which must be founded either upon statute or prece-
dent, cannot but be productive of much doubt and uncertainty,
when it is found deficient in both these respects. The statute
of wills, where the persons disabled to devise are enumerated,
is as follows: “And it is further declared and enacted by law,
that wills and testaments made of any man's lands, &c. by any
woman covert, or person within the age of twenty-one years,
idiot, &c. shall not be taken to be good, and effectual in the law.”
This statute wherein the disability of the woman to make a de-
vise, is particularly laid down, will appear less satisfactory when
we consider that the very implication our natural reason would
prompt us to make upon the words of the statutes, will savour of
rashness, unless sanctioned by indisputable authority. That
such indispensible authority is wanting, I may very safely affirm.
The conduct of the gentlemen respectively upon this question
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sufficiently evince it; neither party having produced any ad-
judged case, wherein a woman in those particular circumstances
is positively declared to be, or not to be within the meaning of
the statute. On the one side the gentlemen have chosen to ad-
here principally to the precise letter of the statute, and have at-
tempted to prove from a variety of arguments, the impropriety
of indulging fanciful conjecture on the plainest cases, and of
framing narrow constructions upon words whose meaning are
general and obvious. On the other side the reason of the thing
has been principally called in question, and the liberty of fram-
ing constructions which accord rather with reason than with law,
been strenuously supported. All our reasonings upon this sub-
ject must be ultimately founded upon the statute: but in the ap-
plication of the general rules there laid down to particular cases,
a judgment must be directed by certain laws of construction,
universally laid down and established. If his decision be made
conformably to these rules, it matters not whether his interpreta-
tions be sanctioned or not by positive authority; if his opinion
be drawn from any topic of construction allowed by the law, it
is of no consequence that this topic has never been employed by
a predecessor in office for the same purpose. “A court of law,
says Sir William Blackstone, as well as a court of equity, deter-
mines according to the spirit of the rule, and not according to
the strictness of the letter.” Both for instance are equally bound,
and equally profess to interpret statutes according to the true
intent of the legislature. If this liberty of interpretation might
therefore be allowed us on this occasion, I should not hesitate to
pronounce this case out of the equity, though within the words of
the act. But we have been repeatedly told that the words of the
statute should have their full and unlimited effect in every case
not hitherto excepted by the courts. Those who have held forth
this opinion with so much vehemence, do not reflect that in so
doing they call in question the legality of those very exceptions:
since those however agreeable to the true sense, and sound in-
terpretation of the rule, had not the sanction of any prior deter-
mination. I am well aware also, that the natural injustice of a
decision in the negative, has been as confidently asserted, as its
supposed legal impropriety. But notwithstanding such asser-
tions, the dangerous consequences of a contrary determination
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to the security of private property, and the rights of individuals,
appear to me in the strongest light; and must appear to every
rational and unprejudiced inquirer.
“But this it is not my design to prove; to most I trust it is
already evident. It is sufficient that I have shown the proprie-
ty of acting independent of any precise authority: or even in
contradiction to it, when authorised by the known and establish-
ed rules of construction. By these rules therefore, as far as I
have been able to discover the intentions of the legislature in
making this act, I am clearly of opinion that they did not intend
to include a woman in those particular circumstances, within
the general rule. I am also of opinion that among those cases
wherein a married woman has been declared to be without the
meaning of the statute, and adjudged by the particular excep-
tions to this rule, otherwise general, none can be found altogether
similar to the case under consideration.”
CASE 3.
“A merchant in England consigns goods to a merchant in
America, he afterwards draws bills of exchange which are en-
dorsed by a third person, he then becomes bankrupt. But prior
to his bankruptcy he assigns the goods in America to another in
England: the goods in America are attached by the endorser,
as the property of the drawer. We are to pronounce upon the
validity of the attachment.
“I shall make no observations upon the propriety of the cir-
cumstances here alledged, what measure of probability they pos-
ses, or whether viewed in a real or fictitious light, any ques-
tion can arise from them worthy of serious discussion. It is I
own in general, incumbent upon those who decide to assign the
reasons of their decision. But every general rule is liable to
some exceptions. That the present case may reasonably be deem-
ed an exception, is the firm persuasions of him whose duty it is
to decide concerning it. If such is my opinion, it matters not
what the sentiments of others may be. The peculiar right of de-
cision in such cases is a privilege annexed to my station, which
notwithstanding the endeavours of the selfish and opinionated,
I will not suffer to be weakened by a formal appeal to the
common sense of others; I am content to wave the privilege
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of my seat no otherwise than by abdicating the seat itself; and
though in opposition to violence and clamour, I am tenacious
of my right as judge, yet as a member I am content to yield
to an opinion, which however unwarrantably urged, is avow-
ed by a majority of my fellow members. Thus much I think
it my duty publicly to declare, in order to ascertain the privilege
annexed by law, as well as reason, to the office of judge of this
society; and by explaining the reason, why I have dispensed with
my privilege on this occasion, thereby to remove the danger of
its growing into a precedent. For I am well aware that had I not
made this public declaration, length of time and the confusion of
events would have rendered my conduct in this particular, an in-
disputable evidence of what is or is not a privilege: but I even
blame myself for the sacrifice I have already made, and as long
as I have the honour to preside in this chair, will be cautious
again of furnishing the like pernicious example to a predecessor,
of sacrificing the dignity of his office to the unwarrantable views
of a factious and imperious member. Party and division in this
society shall in future meet with my discouragement, and I will
no longer countenance the exertions of one who is perpetually
usurping an undue authority over those who are his equals by
membership, as well as those whom their station has for a time
rendered his superiors. If the question is void of doubt or bar-
ren of argument with respect to the advocates, it is certainly so
with respect to the judge. With the same ease and facility
therefore, with which the case before us was argued, I deter-
mine that the attachment cannot be maintained.”
CASE 4.
Is falsehood necessary to constitute a libel against the chief
magistrate of a state? The rules of law, in whatever upon exami-
nation they may be found to consist, will not apply with entire
certainty and precision to this question; unless it were first de-
termined whether the libeller be prosecuted by way of indictment
or information at the suit of the commonwealth, or merely in a
civil action. The station or dignity of either the offended or of-
fending party, does not necessarily determine the mode in which
his offence becomes cognizable by the courts of justice. The
libeller has committed a double injury. He has opened the nar-
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rative, and endangered the reputation of a private citizen, and
hazarded a violation of the public peace. In the first place, the
plaintiff shall receive a recompense in damages, if the charge
brought against him be false; but if the defendant be able to sup-
port his assertions by matter of fact, if the libel contain nothing
but what is strictly agreeable to truth, he may indeed have
incurred “damnum,” but this “damnum absque injuria” for
which he is not entitled to any action. In the second place he is
guilty of a misdemeanour, and is thereupon liable to the more
solemn process of indictment. He is in some measure looked
upon in the light of a criminal, and in this character will not be
permitted to justify, but only to deny the fact. His detestable ma-
lice in uttering a falsehood, or his bold integrity in publishing
the truth, will certainly in all cases colour his offence with a
greater or less degree of enormity. But the malice and falsehood
of an unprovoked attack upon the character of a fellow citizen,
may prompt the dispenser of justice to severer vengeance; and
excite him to denounce an heavier and more adequate punish-
ment against the offender; yet the truth or justice of his animad-
versions, or a universal assent to their propriety will not heal
the wound, which the peace and good order of society hath
thereby received. My opinion is founded upon several unde-
niable authorities, 5 report, 125, Moor 627: 11 Modern 99–4:
Black. Commen. 150. Some of these cases are posterior in point
of time to others, but they are all equally decisive. An objection
has been made, that these are the decrees of the court of Starr
Chamber. This objection if in reality it possess any weight,
can affect only a few of these, and can by no means invalidate
the whole. It may however be necessary to remark that the
court of Starr Chamber was a court of record of high antiquity,
and long duration. That the justice or validity of its proceed-
ings were not called in question, nor even suspected, until a long
period had elapsed after this determination was made; even then
the enormities of which it was guilty respected rather the impo-
sition of penalties, and the rigour of punishment, than the inter-
pretation of the laws. In proportion as it drew nearer the period
of its dissolution, its edicts became excessively harsh and severe.
Instead of watching over the liberties of the people, and guard-
ing carefully against the encroachments of the king, it became
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the champion of the royal prerogative, and the most audacious
asserter of the antiquated rights of the crown. No wonder
then that its minister became arbitrary and tyrannical, and
its exactions intolerable to the people. But this decision was
the fruit of earlier times, and of a milder policy. It is exactly con-
sonant to law and to equity; but independent of this and of eve-
ry other consideration, it is sufficient evidence of its authority,
that it was recorded by lord Hobart and Sir Edward Coke, and
has since been quoted and confirmed by Sir William Blackstone.
“Its contradiction to the principles of equity and the max-
ims of a liberal policy, are equally ill-founded and unreasona-
ble. An idea of necessity must ever mingle with any ra-
tional conception we entertain of justice; for by this will many
circumstances be justified in the administration of laws, whether
of human or divine original, otherwise inreconcilable to the
common standard of equity which every man believes himself
entitled to erect in his own imagination. The liberty of up-
braiding another with his crimes, and of exposing him to the ri-
dicule and detestation of his fellow citizens, is always consider-
ed as imposing a powerful restraint upon his vicious inclina-
tions. That the unlimited use of a remedy so fatal to the inter-
ests of vice, so simple and efficacious in preventing the growth
of corruption or checking its contagious progress, in circum-
scribing the views, and defeating the pernicious efforts of a
restless and depraved ambition, should be prohibited by public
authority, will undoubtedly excite the surprise and undissembled
indignation of the honest but ill informed mind. But as soon as
he extends his views beyond the evil and convenience of a sin-
gle individual, and surveys the enlarged prospect of the whole
community, with its separate company of rights, necessities and
evils; when he withdraws his eye from the contemplation of
the present and imperfect advantage, and pierces into future
and more remote contingencies, he will quietly suppress his
murmurs and rejoicing in himself, acknowledge the admirable
wisdom of the law in thus securing the bonds of government,
the harmony of society, from the baneful influence of secret
malignity and open revenge.”