The argument is next in order. It is a matter of some difficulty to settle the precise duty of a Reporter, in this part of a cause. It is the error of some to detail the argument too minutely, and of others to pass over it with little or no notice. It appears to us, that expediency and utility point to a middle course, from which the Reporter should be drawn only by the magnitude of the cause, and a display of uncommon learning and ability in the counsel. In every case, permitted to be argued by an enlightened Court, a faithful exhibition of the substance of the argument conduces to the sound understanding of the cause, and is particularly useful to the student and junior practitioner. On some great and important questions, the arguments of distinguished counsel assume the form, and have the semblance of the ancient readings, and are then deserving of faithful preservation. But it cannot be admitted to be right, to consume page after page, with the brief of an advocate travelling the beaten and familiar track of discussion. Mr. Binney has adopted, and generally adhered to, a plan, unquestionably good. He has condensed the argument, so as to present the points, the sum of the reasoning upon them, and the application of the authorities which are cited. He has not copied the briefs, nor set down formally the words of the counsel, but has presented the strength of the argument. In some instances, he has been allured to an extended view of the discussion at the Bar; but his justification is found in the novelty or importance of the cause. From examination, we are enabled to bear testimony to his fidelity, in having carefully referred to the authorities which are quoted, and seen their application. In short, he appears to us to merit the praise of having succeeded in distinguishing this part of his work, by method, condensation, and correctness.

The decision of the Court closes the cause. We observe, with pleasure, that, in all important questions, where the court is united in opinion, the decision is given by the Chief Justice, or in case of his absence, by the judge who presides at the argument. The opinions of the Court are reduced to writing, and are published by the Reporter as they are delivered. This practice is highly to be commended, as it results from it, that the Judge is careful and ambitious in the discharge of his duty, the Reporter is free from mistake and reproach, and the public are furnished with the decision as it is pronounced.

In Pennsylvania, the Supreme Court is now the court of the last resort, and its decisions are consequently the law of the State. We have witnessed with pleasure, that in some of our sister States, particularly in New-York and Massachusetts, a rapid improvement in jurisprudence is making, under the administration of able and learned judges. The volume before as gratifies our affection for our own State,

and kindles a degree of pride in her progress. It is evidently the ambition of our judges, to give system and stability to the law, by diligence of research, and a careful regard to precedent. That refuge of sloth and ignorance, to which the judge betakes himself, who claims to deeide upon the particular circumstances and justice of the case before him, and binds every decision to its particular case, is the abhorrence of lawyers and the ruin of a State. This volume furnishes the proof, that our court has the disposition to explore, and the independence to decide.

It is not within the design of this notice, to attempt a criticism upon the opinions of the court. Were we disposed to doubt the correctness of a decision, we should distrust our own judgment, and forbear the expression of our doubts. In some few instances, ingenuity at the Bar and on the Bench may perplex us, but the adjudications, almost, if not wholly, without exception, have our decided assent. We may add, that so far as our information extends, the decisions have been received by professional readers, with favour and approbation.

It gratifies us to observe a prevailing harmony of sentiment on the Bench. A diversity of opinion, too frequently produced by pride of talents, or an attachment to singularity, is calculated to weaken the decisions of a court. A dissentient judge has, therefore, upon him a heavy responsibility, to be discharged only by perfect integrity, and the utmost care and reflexion. This volume sometimes presents to us a divided Court, but it cannot escape the notice of the reader that the present Chief Justice, whose learning and talents are an ornament to the Bench, is found, in every instance, so far as appears, with the majority, which decides the cause.

The opinions of the court are expressed in clear, perspicuous and comprehensive language. In all cases, where the court is united in sentiment, the decision is given by the Chief Justice, and is marked by an adherence to the points, and a freedom from blemishes. On the whole, it affords us great satisfaction to say, that the court is evidently progressing in a science, in which ambition is stimulated by the thought, that progress may always be made by the faithful.

It becomes us to notice the neatness and accuracy of the typographical execution of these Reports, which greatly deserve commendation. The pages are fair to the eye, and undefiled with errors. The praise of general excellence might, with propriety, be passed upon the works of the publishers; but they are receiving a more solid encomium, in the approbation and patronage of the public.

In the close of this notice, we are gratified to express our earnest commendation of the matter and manner of these Reports. They are

distinguished by the ability and fidelity of the Reporter, and are calculated to give fame to the court. The matter is various and important; the volume may be read with interest at home and abroad, and will be welcomed every where as an important addition to the stock of professional learning.

THE NATURALIST, NO. IV. FOR THE PORT FOLIO.

OBSERVATIONS ON THE NIGHT-HAWK AND WHIP-POOR-WILL OF THE UNITED STATES.

On the question, Are these one and the same bird; or are they really two distinct species? there has long been an opposition of sentiment, and many fruitless disputes. Numbers of sensible and observing people whose intelligence and long residence in the country entitle their opinion to respect, positively assert, that the night-hawk and the whip-poor-will are very different birds; and do not even associate together. The naturalists of Europe, however, have generally considered the two names as applicable to one and the same species; and this opinion has also been adopted by two of our most distinguished naturalists, Mr. William Bartram of Kingsessing, and Professor Barton of Philadelphia. The writer of this being determined to ascertain the truth, by examining for himself, took the following effectual mode of settling this disputed point, the particulars of which he now submits to those interested in the question.

Thirteen of those birds, usually called night-hawks, which dart about in the air like swallows, and sometimes descend with rapidity from a great height making a hollow sounding noise, like that produced by blowing into the bunghole of an empty hogshead, were shot, at different times and in different places, and accurately examined, both outwardly and by dissection. Nine of these were found to be males,

• Caprimulgus Americanus, Night Hawk, or Whip-poor-will, Travels, &c. p. 292.

Caprimulgus Virginianus, Whip-poor-will, or Night Hawk. Fragments of the Natural History of Pennsylvania, p. 3. See also Amer. Phil. Trans.

Vol. iv..

and four females. The former all corresponded in the markings and tints of their plumage; the latter also agreed in their marks, differing slightly from the males, though evidently of the same species. Two others were shot as they rose from the nests, or rather from the eggs, which in both cases were two in number, laid on the open ground. These also agreed in the markings of their plumage with the four preceding, and on dissection were found to be females. The eggs were also secured.

A whip-poor-will was shot, in the evening, while in the act of repeating his usual and well-known notes. This bird was found to be a male, differing in many remarkable particulars from all the former. Three others were shot at different times, during the day, in solitary and dark-shaded parts of the woods. Two of these were found to be females, one of which had been sitting on two eggs. The two females resembled each other almost exactly; the male also corresponded in its markings with the one first found; and all four were evidently of one species. The eggs differed greatly from the former, both in colour and marking. The differences between these two birds were as follows.

The sides of the mouth, in both sexes of the whip-poor-will, were beset with ranges of long and very strong bristles, extending more than half an inch beyond the point of the bill; both sexes of the night-hawk were entirely destitue of bristles. The bill of the whip-poor-will was also more than twice the length of that of the night-hawk. The long wing-quills of both sexes of the night-hawk were of a deep brownish black, with a large spot of white nearly in their middle; and when shut, the tips of the wings extended a little beyond the tail. The wing-quills of the whip-poor-will of both sexes were beautifully spotted with light brown, had no spot of white on them, and, when shut, the tips of the wings did not reach to the tip of the tail by at least twe inches. The tail of the night-hawk was handsomely forked, the exterior feathers being the longest, shortening gradually to the middle ones; the tail of the whip-poor-will was rounded, the exterior feathers being the shortest, lengthening gradually to the middle ones.

After a careful examination of these and several other remarkable differences, it was impossible to withstand the conviction, that these birds belonged to two distinct species of the same genus, differing both in size, colours, manners, and conformation of parts.

A statement of the principal of these facts having been laid before Mr. Bartram, together with a male and female of each of the abovementioned species, and also a male of the Great Virginian Bat, or Chuck will's widow; after a particular examination, that venerable maturalist was pleased to declare himself fully satisfied; adding, that

he had now no doubts of the night-hawk and whip-poor-will being two very distinct species of Capromulgus.

It is not the intention of the writer of this to enter at present into a description of either the plumage, manners, migration or economy of those birds, the range of country they inhabit, or the superstitious notions entertained of them; his only object, at present, is the correction of an error, which, from the respectablity of those by whom it was unwarily adopted, has been but too extensively disseminated, and received by too many as a truth.

W.

TRAVELS IN FRANCE-FOR THE PORT FOLIO.

LETTER LXIX.

Mr accounts of the deaf and dumb has taken up so much room, that I feel it necessary to be more concise for the future. After soliciting your attention so frequently, it would be wrong to abuse your patience, and yet if it were my object to give you an exact idea of Paris, and if I were equal to it, a great deal would remain to be said. My determination, from the first, was only to speak of what I saw, and then only when I imagined that the ideas which occurred to me might be, in some respects, different from what you might meet with in books of travels. The hospitals alone could furnish a subject for more than one letter. The poor nuns, who had devoted themselves by vows to attend at these last retreats of human misery, continued to do so during the revolution, notwithstanding the indignities they were exposed to, and the hardships they were made to undergo: they are the only persons of the sort who wear the habit of their order in public, and if it be a gratification to their honest pride to be so distinguished, they surely deserve it.

Independent of those who take refuge in hospitals, there is in Paris, as there always will be in all great towns, a number of poor not so reduced as to consent to the same wretched resource, and who yet stand in need of some assistance. For their relief there exists in every section a conseil de bienfaisance, who call upon the inhabitants for subscriptions, which are, however, entirely voluntary, and there are also small granted from time to time for that purpose by the government. Convents are not known in law, but there is no legal impediment to any assemblage of persons who may choose to call themselves by a

sums