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so much that I was obliged to press my limbs against the table before me to keep me steady on my feet." He never entirely overcame this want of physical firmness, but felt it almost as strongly when he made his first argument in the court of appeals of his State, and in the supreme court of the United States, as in the lower court at Annapolis.
Soon after his admission, at the solicitation of his father, he returned to Calvert county, and commenced the practice. It was not a very desirable theatre for a lawyer, but his father had for him a political ambition, and thought that he could more readily make his way into public life from his native county than from elsewhere. With this in view the young lawyer was nominated to the House of Delegates, and elected after a hotly-contested election. He took a creditable part in the affairs of the session, and, after its close, returned home with the expectation of being re-elected; but, new issues coming up, he was defeated, and abandoned for the time his hopes for political elevation.
The next year, 1801, he removed to Frederick and began in good earnest the practice of the law. His first speech in court there was a volunteer one. Mr. Shaaff, the leader at that bar, having invited him to take part in one of his cases, in order to give him an opportunity to appear before the public - a kindness not often shown to young men now-a-days. Mr. Taney was a diligent student, dividing his time between the law and history and letters. Those were the days of few law books. Coke and Viner and Bacon and Rastall were not superseded by the flood of treatises, digests and indexes of later times, so that the student read much not many, and became thereby the better lawyer.
Mr. Taney worked his way gradually into a practice sufficiently lucrative to enable him to marry in the fifth year of his residence in Frederick, his wife being a daughter of John Ross Key and a sister of Francis Scott Key, afterward the author of "The Star-Spangled Banner."
His professional character is thus described by Mr. William Schley, an eminent lawyer of the Baltimore bar: I knew Mr. Taney from my early childhood. For many years he resided in my native town, now Frederick City. As a boy, as a youth, and afterward as a student of law, I heard him. very often in causes of magnitude in the courts of Frederick; and his arguments and his manner made a deep impression upon me.
He sought not aid from the rules of rhetoric, nor from the supposed graces of elocution. I do not remember to have heard him, at any time, make a single quotation from any of the poets, yet his language was always chaste and classical, and his eloquence undoubtedly was great-sometimes persuasive and gentle, sometimes impetuous and overwhelming. He spoke, when excited, from the feelings of his heart, and as his heart was right, he spoke with prodigious effect, And yet, perhaps
above all other attributes, his exalted private character gave him, with the honest right-minded juries of Frederick county, an extent of success which even his great abilities as an advocate would not have enabled him otherwise to secure. ** He was an open and fair practitioner. He never entrapped the opposing counsel by any of the manoeuvers of an artful attorney, and he contemned, above all things, the low tricks of a pettifogger." In view of some later events in the life of the Chief Justice we may mention one case in which he was counsel while at the Frederick bar. A Mr. Gruber, a Methodist minister, was indicted for attempting to incite the slaves to insurrection and rebellion. The popular feeling against him was very strong. Mr. Taney defended him before a slave-holding jury and a slave-holding judge, and so successfully that he was acquitted. During his speech to the jury Mr. Taney said, speaking of slavery: "While it continues it is a blot on our national character, and every real lover of freedom confidently hopes that it will effectually, though it must be gradually, wiped away and earnestly looks for the means by which this necessary object may be best attained."
In 1823 Mr. Taney removed to Baltimore. The death of Pinkney and Martin had removed the two leaders of that bar, and the high reputation that he brought with him from Frederick at once placed him at its head, a position which he retained until 1829, when Mr. Wirt, then just retired from the attorneygeneralship of the United States, removed to Baltimore. In 1827 Mr. Taney was appointed Attorney-General of Maryland, and in 1831, of the United States, by President Jackson. In 1833, during the celebrated contest over the United States Bank, Mr. Duane, the then secretary of the treasury, having refused to remove the public deposits, Mr. Taney was appointed to that position and immediately issued the order for the removal. The senate condemned the action of the president and of Mr. Taney in removing the deposits, and refused to confirm the appointment, but the house of representatives, fresh from the people, sustained the policy of the government by refusing to renew the charter of the bank.
In 1835, upon the resignation of Associate Justice Duvall, Mr. Taney was nominated by the president to that position. Chief Justice Marshall, who still presided over the court, endeavored, although opposed to Jackson and his policy, to secure a confirmation of the nomination, but party feeling in the senate ran high, and the nomination was indefinitely postponed. On the death of Chief Justice Marshall, in the summer of 1835, President Jackson sent to the senate the name of Mr. Taney, to fill the vacant seat. The nomination was strongly opposed by the old friends of the bank, Mr. Webster and Mr. Clay leading, but it was finally confirmed on the 15th of March, 1836, by a majority of fourteen votes.
And here we purpose to end our notice of his public
life. We have not got far enough away from the passions and prejudice and bitterness, which culminated in the civil war, to judge fairly and dispassionately of those acts and decisions which have so clouded the name and fame of the late chief justice. History will do him that justice which this generation denies him, and will, we doubt not, record him as one who devotedly loved his country and earnestly sought to defend its Constitution.
He died on the 12th of October, 1864, and, in obedience to his oft-expressed wish, was buried by the side of the mother he loved so tenderly in the little graveyard of the Roman Catholic chapel in Frederick. His native State has just erected a costly monument to his memory, but, in shame be it said, that the nation which he served so long and so faithfully, allows the little portrait of him, intended for the supreme court room, to stand with face to the wall in one of the byplaces of the Capitol.
The lawyers of Ohio are urging a change in their judicial arrangements. The supreme court is overburdened with business, and is from two to three years in arrears. It is suggested, on the one hand, to establish an intermediate appellate court, and, on the other, to divide the State into three judicial districts, and the supreme court into three parts of three judges each each part to have the power of final review, except when it may order a case to be heard at a general term of all the judges, to be held once a year. An intermediate court will be found to give the desired relief, provided the laws allowing repeals be sufficiently stringent. In all cases where the amount involved is less than $1,000, the decision of one court of review is sufficient, unless the court, for cause shown, permit it to be taken to the court of last resort. The administration of justice in this State would be improved if we had such a law, and the court of appeals would be relieved of much of the drudgery that it is now compelled to go through.
Mr. Henry L. Clinton makes some suggestions with regard to a reform of our law of murder, with which we heartily concur, and which the Law Journal has on several occasions urged. We have never doubted that the legislature intended, by the act of 1862, to make a distinction between a homicide premeditated, using that word in its broadest sense or plotted or planned before hand, and a homicide comImitted with intent to kill but where the intent was formed upon the instant. The first, whatever casuists may say, is a crime of a higher grade and deserving of a severer punishment than the latter. But, so carelessly was the act worded, that the courts have decided that in either case the killing was murder in the first degree. But juries are apt to look at the question in its moral aspects rather than its legal and have there
fore in cases of killing, where the design was formed on the instant and under some real or supposed provocation, either entirely acquitted or convicted of manslaughter in the third degree. They are loth to give a human being to the hangman except in the most extreme cases. The result has been that murderers have gone unwhipped of justice and life has been rendered less secure. Let the legislature this winter make only deliberate, premeditated homicides murder in the first degree, and those homicides committed under a sudden impulse, murder in the second degree, and juries will not take advantage of all the quiddits of insanity to acquit. Another wise suggestion is made that, in capital cases, appeals should lie directly to the court of appeals and should have preference on the calendar.
Mr. Clinton makes another suggestion and has prepared a bill to carry it out, which is in no way defensible. It is, that whenever in a felony case the jury shall acquit, on the ground of insanity, the court shall, in other than capital cases, order the person acquitted to be confined in a State lunatic asylum for a period not less than the minimum, nor greater than the maximum term for which, if convicted, he might have been sent to State prison; and, in capital cases, for a period not less than twenty nor more than thirty years. There is really no difference in principle between imprisoning a man in a lunatic asylum or in a prison, or if there be, it is in favor of the prison, especially to a sane man. All civilized nations concede that an insane man is irresponsible, and, therefore, not deserving of punishment; but this proposition of Mr. Clinton not only contemplates confining him during the continuance of the insanity, which is proper and the present law, but also detaining him among lunatics after he has become sound in mind, if that should occur before the expiration of the term for which he was committed. To keep a man in pandemonium for a crime he never committed-an insane man cannot in law commit a crime is a species of cruelty which New York State has not retrograded far enough to sanction.
Some three hundred lawyers of Pennsylvania united in giving to Chief Justice Thompson a banquet, on the occasion of his retiring from the bench. It took place at the Continental Hotel, Philadelphia, on the 19th ult., and was one of the most gratifying ovations, probably, ever tendered to a judicial officer. The members of the bench and the leading lawyers of the city and State were present, and expressed in warm terms their appreciation of the ability, integrity, courtesy and fidelity of the chief justice, and their regret at his withdrawal from the bench. The latter, in the course of his remarks, speaking of the Philadelphia bar, said: "I acknowledge my indebtedness to it beyond and above its eminent courtesy. I have been instructed by its learning, and aided by
its ability. I have fully realized, in my intercourse with it, the great importance a learned bar is to a court. The administration of the law is made comparatively easy by it, and justice rendered more certain. It is not too much to say that, to a very great extent, the bar makes the bench, and certainly it is the ultimate correctional tribunal by force of its opinion. No erroneous principle in our free land ever stood against the condemnatory opinion of the bar. It is a great conservative power in this respect."
The misfortune of an elective judiciary was signally exemplified in the last Pennsylvania election, by the rejection of Chief Justice Thompson. However able his successor may be- and his success on the bench remains to be demonstrated - no one claims for him any greater ability nor higher integrity than that of the late chief justice. The latter has had a long experience on the bench, and that he has fulfilled the duties of his high office with singular fidelity and ability is evident were any proof needed - from the unanimity with which the bar of the State have joined in tendering him a farewell banquet, and from the high encomiums there spoken of him. But he happened to be on the wrong side of the political fence, and was, therefore, sacrificed to that insane passion which occasionally gets possession of the popular heart. It is to be hoped that the Constitutional Convention of that State will learn the moral
of the lesson, and endeavor to prevent its repetition.
The Orient seems to be the locus for the establishment of complete, well-defined and symmetrical systems of jurisprudence as well as for the rise and development of grand and nicely rounded systems of philosophy and religion. The Indian Code is the most perfect of all; and the Egyptian judicature is the most uniform and complete of all. The difference, however, between the philosophies and religions of the East and its codes and judicatures is, that the former were self-originated, the latter are the results of reflex influences from the West.
The Code of India was prepared by English lawyers, who put into it the science, experience and legal culture of the West, and found a practical adoption of their views among a people accustomed to accept the views of one man, or some centralized intelligence. It was easy for England to prepare a perfect Code, but it was not easy for her to put it in force in England, and as India wanted a new legal system, a complete Code was made for it and immediately enforced. A great system of jurisprudence, like a great system of philosophy, or of religion, must be the work of some centralized intelligence. The Oriental humanity is accustomed to accept and act upon systems proceeding from a centralized intelligence, and hence ideal codification and ideal judicatures may be more perfectly worked out in the East. The
Viceroy of Egypt is about establishing a uniform scheme of judicature, extending, by consent of the respective governments, even to the foreign consular jurisdictions, sixteen or seventeen in number. will be then in Egypt the most perfect judicature in the world, consisting of one uniform system of tribunals, having jurisdiction in civil and criminal cases, over natives and foreigners, the majority of the judges being Europeans.
The new district attorney of New York, Mr. Phelps, enters upon his duties with the rather unwel
come prospect of having to try about a score of
alleged murderers. That number is already securely
fastened in prison, and according to the usual course of events in New York city, it is liable to be increased largely at any midnight brawl or mid-day altercation. It seems, from an interview of a non-professional reporter with the new district attorney, that he is fully alive to the responsibility of his position, and intends to push the criminal trials to a speedy termination, being impressed that the frequent commission of capital crimes is due, in a great measure, to delay and inefficiency in bringing about trial and punishment. lic sentiment, and thinks that juries are apt to be He believes in "speedy justice" and a reform of pubtimid, vacillating and lenient when they are brought face to face with a question of "life or death" to the accused. But whatever may be the cause of the crimes, the district attorney of the metropolis can prevalence and temporary augmentation of capital have no public duty so sacred and binding as the procurement of the trial of all confined criminals as soon as practicable. That should be his practice as well as his theory.
Last week we had occasion to refer to the rejection of a French professor from the jury-list because of atheistical notions, or rather a disbelief in the personal God. We had hoped that theological questions and notions would not be brought into the courts in any country; and we must confess our disappointment at being compelled to notice a similar disposition even in this country, a disposition to inquire into the precise religious belief of a witness or a juror. In the Stokes trial, a few days since, a witness was allowed to be questioned, not only as to the fact of his belief in a "Supreme Being" or "Higher Power," but also as to the nature and kind of belief which he held. We protest against the tendency which the case of the French professor has developed to inquire into the speculative theology, or dogmas, or notions, which a proposed witness or juror may hold. For the sake, both of religion and of law; for the sake of humanity and of the trust which we repose in our neighbor's honesty, let not these inquiries be pressed too far. The impeachment of the individual sworn by the ordinary processes is a sufficient safeguard against the untruthfulness of testimony. If the deponent or affiant believes in any kind of a God let him rest there, let
In what method are distances to be measured often becomes a question of much importance in connection with contracts, especially those in restraint of trade within certain limits. In Mouflet v. Cole, L. R., 7 Ex. 70, noticed by us in vol. 5, p. 348, the English court of exchequer held that the rule of measurement was to describe a circle around the spot with a radius of the distance to be measured. The exchequer cham ber has just confirmed this decision, but is more precise in terms. The rule they prescribe is to take a mathematically straight line, disregarding not only the irregularities of ground, but even the rotundity of the earth's surface.
The many accidents that have, within the last few years, occurred in the transportation of explosive goods by common carriers, lends an added interest to questions as to the relative duties and liabilities of shipper and carrier. In Barneg v. Burnstenbinder, but recently decided by the general term of the supreme court, first department, the question arose as to the duty of the shipper of dangerous goods to inform the carrier of their nature. The court held that there is such a duty, and that a neglect to perform it is an act of negligence, which renders the shipper liable for the consequences. The principle is similar to that in Thomas v. Winchester, 6 N. Y. 396, where a dealer in drugs was held liable for injuries resulting from his carelessly labeling a poison as a harmless drug, even though the drug had passed through many intermediate sales before it reached the person injured. The decision of the above principal case is in direct conformity with Bass v. Maitland, 6 C. B. 470; Farrant v. Barnes, 11 id. 561. But there is this limitation which, in the New York case, was not suggested: to render the shipper liable he must be cognizant of the dangerous character of the goods. Williams v. East India ('o., 3 East. 192; Hutchinson v. Guion, 5 C. B. (N. S.) 163. The liability of the carrier of dangerous goods for injuries occasioned thereby, while in his possession, will be found very fully discussed in volume 3 of THE ALBANY LAW JOURNAL, page 244.
The decision of the Queen's Bench in Mc Cawley v. Furness Railway Co., noticed in our digest of English decisions, is important, as the decisions in this country are conflicting. The case of Bissell v. The New York Central R. R. Co., 25 N. Y. 442, to the same effect, was by a divided court. On the other side is Cleveland, etc., R. R. Co. v. Curran, 2 Am. R. 363 (19 Ohio St. 1).
It seems not a little strange, at first thought, that the speeches of so few of the eminent members of the bar have been collected and published in a distinct form. Even including those of Erskine we doubt whether the whole would amount to a dozen volumes. Whoever possesses a copy of the English State Trials, will find in it by far the most complete collection to be found in our language. It certainly may well excite surprise that a profession so numerous, many of whose members both in England and in this country stand in the foremost rank of distinguished men, and who seem compelled almost perforce to be orators, should have given so little to the world that is worthy of preservation. To what cause is this to be attributed? Not, surely, to any want of talent, nor to any defects of education. Nor is the answer sometimes given, that the public in general feel little interest in the proceedings of judicial tribunals, satisfactory. We readily admit that the great majority of civil cases are not very attractive, except to the profession and to those who have something at stake. Most men are too busy to spend much time in witnessing the ordinary displays of legal gladiatorship. But our courts of justice are by no means deserted. Scarcely any cause is so dull that some are not attracted to listen; and certainly, the causes that come before our juries are oftentimes of the very highest importance. Not only the property, the liberty and the lives of individuals depend upon their decisions, but principles are there settled involving the welfare of communities and the preservation of government.
Hume has somewhere said, that, among a rude people, the judicial is of more consequence than the legislative power. This remark may with greater truth be made of a people far advanced in civilization, where the laws have become so complicated that an accurate knowledge of them can only be obtained by the labor of years. With us the people and the law makers are one. So long as our present form of government remains, the citizen will find nothing oppressive in the letter of the law. It is in the application of the law to individual cases, in the exercise of that license of discretion necessarily vested in the judge, that the danger lies. The day of legislative tyranny has passed by. The highest executive officer in the government cannot take a dollar from the poor man's pocket without an equivalent. Nor can judges now imprison without trial and execute without conviction. If men would tyrannize over their fellows, they must do it under the forms of law. The power to oppress has changed hands, and the interpreter of the law has become more powerful than its maker. He is to decide upon its purposes. In the vast abyss of precedents, he will ever be liable to find those that will give him a show of authority for what he wishes to do, and can shelter himself from impeachment behind subtle distinctions. In fine, there is no man in the State who can so trample on the rights of others as an able, unscrupulous judge. That the great power, thus intrusted to our judiciary, has in our time rarely been abused, we readily admit. The fact is honorable, alike to the judges and to our age. Many causes have concurred to produce it, and perhaps not the least potent, is the voice of public opinion, which is not entirely unheard in the halls of justice. But, however learned and upright the judges may be, their tremendous power to do mischief, if they be so disposed, is indisputable. They say even to the omnip
otence of our national and State legislatures, "Thus far shalt thou come, and no farther." If then it be true, that in no former age has the judiciary occupied so high a rank amid the departments of government; that never before were so many questions affecting not only individuals, but nations subjected to its decision; we may reasonably expect that the displays of the advocate will be more brilliant and effective, as the sphere of his exertions becomes more wider. It certainly must be attributable to himself, that his forensic efforts have no present interest nor permanent value. The stimuli of an exciting theme, and an attentive audience, are rarely wanting.
It would be preposterous to deny that a large class of litigated cases affords but little escape for displays of oratorical ability. No art of counsel can dignify them or render them attractive. Yet we know that many of the forensic arguments of antiquity, which have been handed down to us as perfect models of this species of composition, were spoken on occasions that excited no great degree of public interest. Of them we must say, materiem reponabat opus. It is the perfection of the style, the felicity of the arrangement and the harmony of the parts that chiefly commend them to our admiration. The occasions that gave them birth passed away with the other passing events of the hour, but they are imperishable. There is the vitality of genius in them. We see everywhere the master hand of the orator. The assassination of a nobleman was not so uncommon an occurrence at Rome as to excite greater alarm and indignation than the murder of a respectable citizen among ourselves; but where is the Cicero that shall embalm even the minutest details of his immortal words, and transmit them to posterity; to rouse the anger or to move the compassion of the reader in the remotest land, and through all time?
If we refer to the speeches of eminent modern lawyers, we shall find that our interest in what they said is mainly owing to themselves, and not to any extrinsic circumstances. When Erskine made his maiden argument, four others had spoken before him on the same side, and these, too, the most distinguished lawyers of that time; and yet their words perished with the breath that gave them utterance, and his alone have preserved in their memory of general readers any recollection of that trial. The Salem tragedy will be known to posterity only as Webster has depicted it. Other able men addressed the jury, but who can name them? Ever will our imagination be haunted with the vision of that white-haired old man, lying in peaceful slumber, and of the assassin as he stealthily creeps through the moonlit apartments, "now in glimmer and now in gloom."
The orator, indeed, like the poet, may, in a certain sense, be said to be a creator. The materials may be ready to his hand, but he must give them shape and symmetry. He is to clothe the skeleton with flesh, to breathe into its nostrils the breath of life, and send it forth a Venus, the perfection of feminine grace, or an Apollo radiant with manly beauty. In his mouth words have a power which they have not in the mouths of other men. Does he speak to you of the wrongs inflicted by some hard-hearted oppressor? Your brow grows black with rage. Does he tell of the misery endured by some poor, patient man? The tears are dropping unaware from your eyes. Is he describing a transaction in a distant place? It is passing before you. The past gives up its dead at his bidding. The dim
shadows of the future become life-like and real. He sees deeper than other men into the hearts of man. He is better able to distinguish between what is peculiar to the individual and what is common to the race; and hence his words have an interest long after the events which gave them their origin have passed away and been forgotten. Let such a man speak upon ever so humble a theme, and all within the sound of his voice are irresistibly attracted to listen. His logic may be bad, his rhetoric rude, his manner uncouth; but there is some secret power, some indefinable charm which we can bring to the test of no analysis, and whose presence we can only recognize when it has become too late to resist; when we are its captives, fettered and helpless.
If what we have said be true, it is sufficiently apparent that there is nothing in the character of judicial tribunals or in the nature of the subjects discussed before them that satisfactorily accounts for the dearth of forensic orators. Perhaps we may say that the question is answered, when we remember that Nature cannot be forced to bestow her gifts; that as Greece had but one Demosthenes, and Rome but one Cicero, we must now patiently wait for the hour and the (To be continued.)
Commentaries on The Common Law, by Herbert Broom, LL. D., 4th edition. Philadelphia: T. & J. W. Johnson & Co., 1872.
Elementary works always necessitate the largest research, the deepest investigation, the most thorough analysis and the most concise and perspicuous statement and arrangement. Mr. Broom is one of those men of breadth and depth whose delight and forte it is to deal in the great principles of the science to which he devotes himself. His work on "Legal Maxims," so well known to the legal profession, reveals the characteristics of the author and his productions. In his Commentaries on the Common Law Mr. Broom has been no less felicitous and reliable in the evolution of principles and in the statement of legal premises and conclusions. The work first appeared in 1855, when the author, in his preface, inquired "if it be true that law is really worthy to be called a science-if it be true that lex est ratio mensque sapientis ad jubendum et ad deterrendum idonea, if further we are justified in affirming that potius ignorantia juris litigiosa est quam scientia - is it indeed vain or inexpedient to hope that a sound knowledge of legal principles may gradually be desiderated by and spread amongst the educated classes of this country? Is it futile or unwise to predicate that much and enduring good would thence result?" Mr. Broom has lived long enough to carry his work through four editions and to witness not only the professional success of the project, but also the development of a tendency in the non-professional mind of England to master legal principles and inaugurate an intelligent, systematic and enduring law reform. The present American edition is from the fourth London edition of 1869, and is a desirable contribution to American legal literature. There is very little of the work which is not of practical value in the American courts and to the American lawyer. By far the largest part of the work is devoted to legal rights, contracts, torts, and criminal law, which have a universal bearing; while but a small portion is given