work done by the judges of England on circuit show them to ben exceedingly industrious and faithful judicial body, well worthy of the enormous salaries which are received and the high honors which are conferred. The work of the judge on the criminal side is especially severe and tedious, for the prisoners have to be tried, while the civil causes may go over the term. Of Baron Parke, it is related, that in a celebrated murder trial, about twenty-five years ago, he sat for nineteen consecutive hours. from nine o'clock one morning till four the next. One instance is noted where the court was occupied in the trial of an issue four days, sitting each day at eight A. M., and rising at ten P. M. The usual time for the sessions of the court is from nine o'clock in the morning until six in the evening. Many of the civil causes, however, go over the term, under the name of remanets. It is related of Baron Parke that he never left a single remanet during a judicial career of twenty-seven years. In case the criminal business is extraordinarily heavy, it was the practice, a few years ago (and, for aught we know, at the present time), to establish a third court

not altogether unlike our reference in civil cases over which a sergeant or queen's counsel presides. Necessity alone gives rise to such a course, for not only do the judges dislike to try a prisoner in this mode, but the prisoners themselves particularly object to this mode of being tried. This feeling on the part of the prisoner was well illustrated in the case of a burglar tried and convicted before a learned counselor, at Maidstone. The prisoner being called upon to know if he had any thing to say prior to sentence being pronounced, grumbled out: "Well, I don't know nothing as I has to say about it, but I'm bless'd if I like this here way of being tried by a journeyman judge." But a few years ago, when the means of travel were not so rapid and certain as now, the judges found great difficulty in getting from one assize town to another, when pressure of business prevented them from closing court in one town until late in the commission-day of the next. One who was of the judicial party, on such an occasion, thus narrates his experience: "Well do I recollect the business at Cardiff terminating at six P. M. of the day appointed for opening the commission at Caermarthen. The train was delayed half an hour to receive the hard-worked judge; Swansea was safely reached, but, beyond this town, the rail was incomplete; a carriage and four for the judge and marshal, another and pair for the clerks were waiting; and off and away, up hill and down dale, we rattled. Time wore on; fresh horses waited at every posting-house; and, with undiminished speed, we held on our way. Nine, ten, eleven o'clock passed, yet we did not despair; up one steep hill, down another, over a long bridge, and we entered Caermarthen, rushed into the courthouse, and, by the light of a single candle, the royal commission was read, just as the old church clock rung out the midnight hour. The commission was

saved; but had we been two minutes later, it would have been necessary to transmit to London a memorial, engrossed on parchment, of all the facts of the case, and very much trouble would have been occasioned."

The closing scenes of the assize are not unworthy of note. As the judges proceed to their lodgings, after the formality of adjournment is observed, the church bells ring out merrily, the trumpets sound loud and gaily; the barristers divest themselves of their gowns; the attorneys settle and pocket their fees; and men perambulate the streets with true and faithful accounts of the doings of the court "hat this hassizes." A little later, the sheriff's carriage rolls through the town containing the judge, and followed by the rabble who are curious to see his departure. At the station the judges say farewell to the sheriff; and, in company with their attendants, enter the car provided for them, and speed away to the next assize town on their errand of justice "swift as the goddess, whose ministers they are."

TRIAL BY JUDGE AND TRIAL BY JURY.

FROM THE WESTMINSTER REVIEW.

That the jury system is far from comprising the whole, if it comprises any part, of the merits of modern English law, is apparent from the plain fact that it dates back through centuries, in which our courts have presented such a spectacle of pettifogging technicality and judicial murder, as had never been witnessed under more despotic governments; when a mistake in a special plea sent men to the gallows untried, and rascals charged with bigamy escaped through having not two wives but three. If we ever inquire what other system would be possible, the alternative that usually suggests itself is the judicial bench, such as it existed in the days when judicial ability was sold to the wealthiest suitor or prostituted to court favor. That the jury system has lived so long, and has set off its claims to respect by a borrowed descent from the great Saxon lawgiver-like a wealthy family which the Herald's College discovers to have come over with the conqueror · affords no very strong presumption of its suitability to modern requirements. Its popu lar character, endearing it to the democratic sentiment which has steadily grown in strength throughout our history the feelings of self-importance that it arouses in "the ordinary middle-class Philistine," whom it calls for a time from his daily routine of counter or farm to share with the bench the important work of judicial decision, and to whom counsel, learned in the law, address their eloquent appeals in professed reliance on his dispassionate sense and sagacious instincts — these were sure to secure it a sanctuary where modern innovations would be slow to penetrate. But, setting aside all such irrelevant considerations, we would examine the rival merits of the jury and the judge on those rational principles,

where alone the wisest advocates of either would wish to take their stand.

Before the subject is touched upon in its more practical aspects, a few words may be devoted to the principle involved in trials by peers or equals the famous legale judicium parium suorum,* without which, if the lex terræ did not intervene, and the provisions of Magna Charta remained unaltered, no freeman could be imprisoned, outlawed, exiled or disseized. The principle, that a tribunal ought to be composed of the prisoner's equals, strikes us as being (at least in modern times) prima facie unreasonable. If the sole object of administering justice were to provide every means of escape for a prisoner accused of even the gravest offenses, we could see a direct purpose in the provision which substantially enacts, that his judges shall be of the class most likely to sympathize with him, and look with a lenient eye on his guilt. It is palpably framed as a safeguard to the accused in a state of society where class-feeling is rampant, and mutual hostilities have engendered in every man that has power over the security or life of his fellow in a different grade, the sentiment of the wolf in the fable: "I know that the whole breed of you hate me, and therefore I am determined to take any revenge." And, certainly, if passion and prejudice are to take up their abode at what should be the securest shrine of refuge from their influence, for the most hated aristocrat or the most despised plebeian, better, at least, that it should be prejudice in favor of the accused, and that, if the scales of justice hang uneven, she should not throw in the sword to aggravate the inequality. We may have reason to be thankful for services rendered in times past by the enactment, if honest and upright men have at times found in it a protection against sullen hostility or the frenzied rage of other classes. Where, however, the judge is superior to considerations of rank, such a provision is evidently purposeless; and yet the very supposition on which it is based, of a reluctance in one class to recognize the just rights of another, shows how little justice was to be expected against a criminal from judges of his own grade.

--

which was too much blinded by party feeling to be intrusted with the trial of a plebeian thief, is ex hypothesi the fit and proper court in which to judge the patrician assassin!

Such a system, like the benefit of clergy and other incidents of English law calculated to allow the accused an undue opportunity of escape, would not be without reason in a hasty and barbarous age, unscrupulous of bloodshed. On this ground Michelet defends the claim advanced by the ecclesiastics during the days of Henry and Becket, that they should be responsible to none but ecclesiastical tribunals.

"These rights," he remarks,* "undoubtedly gave room for great abuses; many crimes were committed with impunity by priests; but when we think of the terrible barbarity, the execrable rapacity of the lay tribunals in the twelfth century, we are forced to own that the ecclesiastical jurisdiction was then an anchor of safety. It might spare the guilty; but how often it saved the innocent."

The demand, as Mill justly remarks, was for nothing more than trials by their peers. Yet we question whether there are now any, at least in this country, who would not strenuously resist the proposal to establish a sacerdotal court to take cognizance, not merely of ecclesiastical offenses, but of violations of the secular law committed by clerical offenders. We see enough as it is of the effect which a sort of esprit de corps, especially (though by no means exclusively) in those less instructed in their social duties, is capable of producing in perverting the testimony of witnesses, and rendering the judgment of squires a byword throughout the land. A policeman will confirm through thick and thin the story af a brother in the force, and the same very largely holds good of cabmen, railway officials, and many others. The justice before whom Parson Adams was charged in Fieldings' novel, and who "hoped he knew his duty, he had never condemned a gentleman in his life," would have an ample number of imitators if the principle of trial by peers were carried out to any logical consequences.

The sanguinary character of the English law long survived the dark ages in which it arose; our jurisprudence, while in its cruel rigor it confounded under the same category, and avenged with the same awful penalty, a theft of five shillings and a cold

pronounced its own just condemnation in often opening a door for the preservation of the accused, whether innocent or guilty. Thus the practice of urging a prisoner to retract a deliberate plea of guilty, and of going through the formal examination into an offense of which no reasonable doubt could be entertained by the most sympathetic friend of the accused, has been satirically commented upon as intimating a desire that the hunt should not be spoiled for want of the

"Histoire de France," ii, 343.

game having a fair start. In a similar spirit one might suppose that the same feeling of humanity (if Mr. Freeman would allow so questionable an application of the word) that prompts some sportsmen to release the game when they have brought it down, led our ancestors to devise cunning means for the ultimate escape of the prisoner, who had afforded an interesting and profitable employment to the men of law. So long as trials by equals afforded an escape from intolerable severity in the law, it was, if an illogical, a valuable system. At the present day it seems somewhat difficult to suppose that any man can calmly attach much value to the thought of his liability to trial before none but his equals. Who are his equals? A chimney sweep, a butcher, a surgeon, the younger son of a peer, a member of the house of commons- in the theory of the law these are all the equals of one another. And are we to believe that, among all these classes, a mysterious sympathy, pervading and confined to commoners, will insure the distribution of a degree of justice not to be expected from a Lord Brougham. or a Lord Mansfield? Is a man, in all cases, the equal, and the only equal, of a woman- a woman never the equal of a man? In times of agitated feeling, or in districts where churchmen and dissenters, Protestants and Romanists, regard each other with an intensity of bitterness more than sufficient to satisfy stout old Dr. Johnson's love of "a good hater," is each of these the man best fitted to form a dispassionate judgment on an accusation brought against his rival? We have, of course, no thought of deploring this Isonomia- this equality of all commoners before the law; but it surely cuts the ground from under the feet of those who allow the trial by peers to dazzle their imaginations with pictures of a sympathetic tribunal ready to act the part of counsel for the defendant- a notion alike undesirable and impossible of attainment.

(To be continued.)

AUTOBIOGRAPHICAL SKETCH OF CHANCELLOR KENT.

The following letter is said, upon what seems to be very good authority, to have been written in 1828 by Chancellor Kent, to the late Thomas Wash

ington, then one of the leaders of the bar of Tennessee, and was first published in the Southern Law Review. It is certainly interesting and will be read with pleasure:

NEW YORK, October 6, 1828.

DEAR SIR-Your very kind letter of the 15th ult. was duly received and also your argument in the case of Ivey v. Pinson. I have read the pamphlet with much interest and pleasure. It is composed with masterly ability. Of this there can be no doubt; and without presuming to give any opinion on a great case still sub judice, and only argued before me on one

side, I beg leave to express my highest respect for the law, reasoning and doctrine of the argument, and my admiration of the spirit and eloquence which animate it. My attention was very much fixed on the perusal; and if there be any lawyer in this State who can write a better argument, in any point of view, I have not the honor of his acquaintance.

Your

As to the rest of your letter, concerning my life and studies, I hardly know what to say or do. letter and argument and character and name have impressed me so favorably that I feel every disposition to oblige you if it be not too much at my own expense. My attainments are of too ordinary a character, and far too limited, to provoke such curiosity. I have had nothing more to aid me in all my life than plain method, prudence, temperance and steady, persevering diligence. My diligence was more remarkable for being steady and uniform than for the degree of it, which never was excessive, so as to impair my health or eyes or prevent all kinds of innocent or lively recreation.

I would now venture to state briefly, but very frankly, and at your special desire, somewhat of the course and progress of my studious life. I know you cannot but smile at times at my simplicity, but I commit myself to your indulgence and honor.

I was educated at Yale College and graduated in 1781. I stood as well as any in my class; but the test of scholarship, at that day, was contemptible. I was only a very inferior classical scholar, and we were not required, and to that day I had never looked into any Greek book but the New Testament. My favorite studies were Geography, History, Poetry, Belle-Lettres, etc. When the college was broken up and dispersed in July, 1779, by the British, I retired to a country village; and finding Blackstone's Commentaries, I read the four volumes. Parts of the work struck my taste, and the work inspired me at the age of sixteen with awe and I fondly determined to be a lawyer. In November, 1781, I was placed by my father with Mr. (now called Judge) Benson, who was then attorney-general at Poughkeepsie, on the banks of the Hudson and in my native county of Dutchess. Here I entered on law and was the most modest, steady, industrious student that such a place I read the following works: Grotius and Puffendorf, in large folios, and made copious extracts. My fellow students, who were more gay and gallant, thought me very odd and dull in my taste; but out of five of them, four died in middle-life drunkards. I was free from all dissipation, and chaste as pure, virgin snow. I had never danced or played cards, or sported with a gun, or drank any thing but water. In 1782 I read Smollett's History of England, and procured, at a farmer's house where I boarded, Rapin's (a huge folio), and read it through, and I found during the course of the last summer among my papers my MS. abridgment of Rapin's dissertation on the laws and customs of the Anglo Saxons. I

ever saw.

politics against France in 1793; and my hostility to the French democracy and to French power, beat with strong pulsation down to the battle of Waterloo. Now you have my politics.

I had excellent health, owing to the love of simple diet and to all kinds of temperance, and never read late at night. I rambled daily with my wife over the hills. We were never asunder. In 1795 we made a voyage through the lakes -- George and Champlain. In 1797 we ran over the six New England States. As I was born and nourished in boyish days among the highlands east of the Hudson, I have always loved rural and wild scenery; and the sight of mountains, hills, woods and streams always enchanted me, and does still. This is owing, in part, to early association, and it is one secret of my uniform health and cheerfulness. In 1790 I began my official life. It came upon me entirely unsolicited and unexpected. In February, 1790, Governor Jay wrote me a letter stating that the office of master in chancery was vacant, and wished to know, confidentially, whether I would accept. I wrote a very respectful, but very laconic, answer. It was that I was content to accept of the office if appointed. The same day I received the appointment, and was astonished to learn that there were sixteen professed applicants all disappointed. This office gave me almost a monopoly of the business, for there was but one other master in New York. The office kept me in petty details and out-door concerns, but was profitable. In March, 1797, I was appointed recorder of New York. This was done at Albany, and without my knowledge that the office was even vacant, or expected to be. The first I heard of it was the appointment announced in the papers. This was very gratifying to me, because it was a judicial office, and I thought it would relieve me from the drudgery of practice, and give me a way of displaying what I knew, and of being useful entirely to my taste. I pursued my studies with increased application, and enlarged my law library very much. But I was overwhelmed with office business, for the governor allowed me to retain the other office also; and with these joint duties, and counsel business in the supreme court, I made a great deal of money that year. In February, 1798, I was offered by Gov. Jay, and accepted, the office of youngest judge of the supreme court. This was the summit of my ambition. My object was to retire back to Poughkeepsie and resume my studies, and ride the circuits and inhale the country air, and enjoy otium cum dignitate. I never dreamed of volumes of reports and written opinions; such things were not then thought of. I retired back to Poughkeepsie in the spring of 1798, and in that summer rode over the western wilderness, and was delighted. I returned home and began my Greek and Latin, French, English and law classics as formerly, and made wonderful progress in books that year.

In 1799 I was obliged to move to Albany, in order

that I might not be too much from home, and there I remained stationary for twenty-four years.

When I came to the bench there were no reports or State precedents. The opinions from the bench were delivered ore tenus. We had no law of our own, and nobody knew what it was. I first. introduced a thorough examination of cases, and written opinions. In January, 1799, the second case reported in 1st Johnson's cases of Ludlow v. Dale, is a sample of the earliest. The judges, when we met, all assumed that foreign sentences were only good prima facie. I presented and read my written opinion that they were conclusive, and they all gave up to me, and so I read it in court as it now stands. This was the commencement of a new plan, and then was laid the first stone in the subsequently erected temple of our jurisprudence. Between that time and 1804 I rode my share of circuits, and attended all the terms, and was never absent, and was always ready in every case by the day.

I read, in that time, Vattel and Emerigon, and completely abridged the latter, and made copious digests of all the new English reports and treatises as they came out. I made much use of the Corpus Juris, and as the judges (Livingston excepted) knew nothing of French or civil law, I had an immense advantage over them. I could generally put my brethren to rout, and carry my point, by my mysterious wand of French and civil law. The judges were republicans, and very kindly disposed to every thing that was French; and this enabled me, without exciting any alarm or jealousy, to make free use of such authorities, and thereby enrich our commercial law. I gradually acquired proper directing influence with my brethren, and the volumes in Johnson, after I became judge in 1804, show it. The first practice was, for each judge to give his portion of the opinions when we all agreed, but that gradually fell off, and for the two or three last years before I left the bench, I gave the most of them. I remember that in 8th Johnson, all the opinions for one term are "per curiam." The fact is, I wrote them all, and proposed that course to avoid exciting jealousy, and many “per curiam" opinions are inserted for that reason.

En

Many of the cases decided during the sixteen years I was in the supreme court were labored by me most unmercifully; but it was necessary, under the circumstances, to subdue opposition. We had but few American precedents, our judges were democratic, and my brother Spencer, particularly, of a bold, vigorous, dogmatic mind and overbearing manner. glish authorities did not stand very high in these feverish times, and this led me a hundred times to attempt to bear down opposition, or shame it, by exhausting research and overwhelming authority. Our jurisprudence was, probably, on the whole, improved by it. My mind, certainly, was roused, and was always kept ardent and inflamed by collision.

In 1814 I was appointed chancellor. The office I