Chief Justice of the Common Pleas, and Lord Chancellor Ellesmere. Of the peculiar nature of Chancery, foreigners have had very confused notions; and Mr. Justice Story has shown, that even native writers, learned in the law, have strangely erred. That it is ordained to supply, and not subvert, the law, that it acts ex æquo et bono, and is administered at the discretion of the chancellor, which discretion is said to be a legal discretion,-that it differs from all other courts in the modes of trial, proof and relief,-that it extends to numerous cases wherein the law, by reason of its generality, is deficient, and, in fine, that it reaches to all cases of rights recognized and acknowledged by the municipal jurisprudence, to which a plain, adequate and complete remedy cannot be addressed at common law,-are descrip tions with which one, who is not a lawyer, must be satisfied, and one, who is a lawyer, unless we are much mistaken, after examining all the books upon the subject, will find a confusion of ideas still existing in his mind. The truth is, it is easier to know what Equity does, than to know why it does it; and for our own parts, we have never yet seen so clearly why a great part of its business might not, with great propriety, be entrusted to the ordinary courts. But, we are on tender ground.

The important part occupied by the jury in the English juridical system, entitles it to an extended notice in this place. No Englishman can feel other than a just pride, when he considers the distinctive character which it has given to the administration of justice in his country. To the Greeks and Romans, it was an institution unknown; and it has gained but partial admission into any of the countries on the continent of Europe, which have been formed upon the basis of the Roman law. The trial by jury has been esteemed the bulwark of British liberty, and its guarantee formed one of the most important stipulations of Magna Charta. All the wealth, honor, liberty, life of the subject, hangs upon its determinations. From its honesty and enlightenment every thing may be hoped,-from its corruption every thing

* This drew forth the well-known reproof of Mr. Selden: "For law we have a measure, and we know what to trust to; Equity is according to the conscience of him who is chancellor; and as that is larger or narrower, so is Equity. 'Tis all one as if they should make the standard for the measure the chancellor's foot. What an uncertain measure this would be! One chancellor has a long foot, another a short foot, a third an indifferent foot. It is the same thing with the chancellor's conscience."

despaired. Cavilling objectors have found much in it to
censure, but the enlightened experience and wisdom of many
centuries have determined its place among the best, the wis-
est and most perfect of human institutions, adapted admira-
bly to the purposes to which it is applied. "The whole ma-
chinery of the State," says one, "king, lords and commons,
all the apparatus of the system and its varied workings, end
simply in bringing twelve good men into the box." If we
trace for its origin, we must be lost in the most remote an-
tiquity. It formed a part of the policy of those northern
tribes which overran Europe, and traces of it are found
wherever they left their impress. These hardy emigrants
from the officina humani generis, had notions of liberty too
stern and elevated to condescend to any other judgment than
that of their peers. It was then, as it was long afterwards,
Nullus liber homo, aliquo modo destruatur, nisi per legale ju-
dicium parium sudrum.
When the Saxons were introduced
into England, it is likely they brought this institution with
them, if they they did not find it there as some suppose, or
were not indebted to Alfred the Great for its establishment.
Certain, in the time of Ethelred, it is mentioned as no no-
velty. Down to the present day, it has ever maintained its
character and dignity, even in the most troubled times. Its
sphere has been respectively innovated upon by the Norman
trial by battle, the Courts of High Commission, Star Cham-
ber and Chancery, but it has proved too strong for all of
them. Formerly, the heaviest punishment, in the nature of
a "writ of attaint of false verdict," was suspended over the
jurors' heads,-if they flinched, it fell. The consequences of
this writ were direful in the extreme,-its victim was scarce-
ly considered a human being, he was hooted at, execrated,
hunted down, he lost every right and every privilege,—
even his family were infamous; in an instant, in the twink-
ling of an eye, he was transformed into

" a monster of such hideous mien,
That to be hated needs but to be seen." "

But, a writ of such questionable propriety was seldom used, and has long ceased even to be named. If any thing can be said in its defence, it must be found in the nature of the jury in the earlier times; it had vastly more power than now. Its members came from the county in which the case originated, and their verdict was founded upon their own personal

knowledge without the examination of witnesses. The writ of attaint might have been needed then, not afterwards.

Every one conversant with English history, must remember the great efforts which were made at one time to undermine the power of the jury, and bring it down crouching at the feet of the court. Lord Mansfield led the van, and was a host in himself; Mr. Justice Buller was behind him, full of admiration.* Lord Hardwicke was looked up to with veneration, and other great judges were not wanting. We allude to the attempt which was made to wrest away from the jury, in the question of libel, the consideration of intent, and confine them simply to the fact of publication. The most distinguished lawyers of the age, backed by the House of Commons and people, took the alarm and rushed to the conflict. Then was there a war of giants. Mansfield was violent, reckless, but great. Junius, behind the scenes, was hurling thunderbolts. Mr. Fox's artillery commanded the House of Commons. The voice of the nation fixed at last the seal of its condemnation on the odious heresy, and the jury was safe. During this famous controversy, so daring was Lord Mansfield in support of his opinions, that he is accused on one occasion of having overleapt the boundary of truth, and sullied his otherwise bright reputation. In referring to a popular ballad of the times, of Lord Hardwicke:

"For Sir Philip well knows that his inuendoes
Will serve him no longer in verse or in prose,
For twelve honest men have decided the cause,
Who are judges of fact as well as of laws:"

to suit his own purposes, the learned judge made the last line read, at the expense of harmony as well as truth:

"Who are judges of fact but not judges of laws."

In the United States, by virtue of a common origin, the English law has been almost universally adopted-the exceptions being found in those cases where a conflict exists between the peculiar institutions of the two countries. Dur. ing the colonial relation, the parliament of England, as of

* Lord Mansfield was even then, at the head of the King's Bench, introducing those innovations, *** which, by his own account of it, threw Mr. Justice Buller into a perfect ecstacy of wonder at the depth, the comprehensiveness, and the acumen, of that powerful and ruling understanding. South. Rev. No. 3, Art. III., by Mr. Legare.

course, had the same sovereignty on both sides of the water. When that relation was dissolved, and the thirteen American States formed together an independent member of the family of nations, English and American law began to diverge. The era of the Revolution is the point of divergence. English statutes, before that period, if they ever were applicable to this country and have not been repealed, are declaratory of the law now. Since then, it has been customary to re-enact here such statutes of the English parliament as seemed deserving of highest favour and calculated to give increased efficacy to the administration of justice. What was common law in England in 1776, is common law in this country now, unless altered by statute. English contemporary reports of adjudged cases, and the writings of their sages in the profession, are consulted among us with as much zest as ever, and admitted to as high favour in our courts. With all the enmity we encourage against England,-all the ri valry that exists between the nations,-there has yet been exhibited, on our part, no indisposition to admire her, in those points where she is truly admirable,-we admire and imitate.

Under a constitution such as ours, where each State is a sovereignty, and taken together, all the States, for certain purposes only, constitute a unit, conflicting jurisprudence would naturally be expected; but the common origin of the States, and the extent to which they all draw upon a common source, will always prevent the angle of divergence from becoming very great, the single State of Louisiana forming an exception, where the roots of the civil law have struck down so deeply, and have taken so firm a hold, that the growth of the common law has been retarded. When all the States are acting together as a unit, they acknowledge a body of law bearing with equal force upon all, and administered in courts of a peculiar nature. These courts, whether district, circuit or supreme, have jurisdiction co-extensive with the whole country.

Having now dwelt so long upon law, which may not have sufficient interest to keep alive attention, it is time to turn to that class of men who have, in all ages, presided over its administration, who have been its repositories, its priests, its oracles-lawyers. If there be a science of law, and if it have its deep and profound learning, to expect a general ununderstanding of it would be an absurdity. To be sure,

there is something paradoxical in the idea of men being governed by ordinances with which they have no acquaintance, and yet, how is it possible that they can have such an acquaintance without devoting much of their lives to its study. For this, how few have the time, if they have the capacity. In view of the law maxim, ignorantia legis excusat meminem, taken abstractly, does not Calligulas' custom of writing decrees, in the smallest possible character, and posting them up in the highest places, lose much of its absurdity? Men, whose researches have never extended into this field, think it remarkable that so many difficulties should exist, so much complexness, so much doubt, and so vast an accumulation of learning, when the principles of justice are so few and obvious. They think that, between man and man, the duties and obligations are of so limited a nature and so easily understood, that all the rules required to govern them might be comprised in the shortest space. These opinions are common, and it is equally common for those ever ready to carp at lawyers, to charge upon them all ths difficulties in law. For ourselves, whilst we admit that simplicity and conciseness are much to be desired, that they conduce to the perfection of the system, and that the bold hand of the reformer, might often be judiciously extended, we cannot, after looking at society as it is organized at the present day, after regarding its minute divisions, and contemplating the extensive, varied and conflicting interests that rise up and place themselves under its protection, suppose for an instant that any thing but a vast accumulation of law will result with the profoundest learning. In a simple state of society, a few general rules may suffice, but, as the state grows, a body of jurisprudence will grow up with it in the same proportion. The number of independent adjudicated points in the English law, have been estimated at over one million, the development of which must occupy no inconsiderable libraries. It is easier to propose than to carry out reforms, and when any very extraordinary simplification has been aimed at, the effect has generally been a failure. The rules of law as now established, have been established for their wisdom, and although that wisdom may not be discovered always at a glance, or even upon study, it has been frequently manifest when there has been any innovation. It is seriously questioned, by Chancellor Kent, whether any thing has been gained by the New-York Revised Statutes, which promised