cessors. his imprint on our society and our government. Having, to guide him, precedents almost without number, his personality is largely diminished. He is circumscribed, more or less, by limits marked out by his predeComparatively few questions have come before him on which the accumulated lore of the law has shed no light. The thoroughfares he has trodden have been marked out. In the caravan of cases whose travel on these judicial highways has marked the century, he has found some strangers. In guiding such strangers to the oasis of final judgment, he has used the light of precedent as far as it shone; and, for the rest of the journey, he has illumined the darker passages with characteristic American shrewdness. Armed with the priceless heritage of English law, the legal legacies bequeathed to all generations by Coke and Blackstone, by Hale and Hardwicke and Mansfield,—he has followed the pioneer into Southern swamp and Northern wilderness. There, circuits were laid out, and there they have remained, through our wonderful national growth, an inestimable influence for public good. While the C.rcuit Bench has impressed our institutions, our institutions have also impressed the Circuit Bench. The influence of a free people whose officers are their servants, and not, as in England, their king and lords, has made itself felt on the bench. What a contrast between the old English judge, with his power of probing a citizen's conscience to find a trace of d sloyalty to the sovereign, and the American judge, who cannot bring the meanest of the populace before the judgment seat until his neighbors have first accused him! The difference, also, in the source of their authority, tends to bring the American judge nearer to the citizen. The English judge held his office by the grace of the king. The American judge holds his commission from the sovereign people, either by their direct ballot or through selection by public servants chosen by their suffrages. The difference in their accountability is also influential. The one was responsible to a prince whose will, at that time, was law; the other is watched by the people--a jealous master,-who demand a spotless ermine. When the old English judge rode the circuit, the jury was hardly more than the trappings of the court. The American judge presides before a jury whose will he is in most things bound to respect, and whose verdict should be absolutely untrammelled by the slightest opinion from the bench. One thing that has contributed so largely to the independence of the Circuit Judge, in England and America, is his ABSOLUTE FREEDOM from liability in damages for any judicial conduct. It is true that in the case of the Marshalsea, (10 Coke, 68) it was held that a judge with limited jurisdiction was liable in damages for injury inflicted by exceeding his jurisdiction. While it is not likely that any court where the common law prevail, would now follow such a precedent, this decision was put on the ground that the inferior judge, in exceeding his jurisdiction, ceased to be judge, and his acts then became only the conduct of a private citizen usurping an office. In the case of Mostyn vs. Madrigas (Cowp., 161), the governor of Minorca was sued in damages for imprisoning a citizen. This governor, in addition to his executive duties, exercised some judicial functions. But it was held that in the act complained of, he acted only as governor, and hence could not claim immunity from the suit on the ground of his office as judge. And Lord Mansfield declared in his opinion, that judicial conduct is wholly exempt from civil liability, and that the judge is perfectly secure from pecuniary responsibility for damages, no matter how excessive, arising from his acts as judge, no matter how erroneous. In one instance the Recorder of London, sitting as judge of oyer and terminer, fined and IMPRISONED A JUROR for returning a verdict of which the judge disapproved. If a judge should be responsible for any act, it would seem that such an outrage should be dearly paid for. But the court (Hammond vs. Howell, 2 Mod., 218,) while admitting the outrage, denied the remedy. In the reign of Edward III, a judge of oyer and terminer was actu ally indicted for falsifying the court record, in entering an indictment for a trespass as an indictment for felony; but the suit was denied. In the reign of Henry VI, a judge of record was sued in case for fraud in executing the office of escheator. This suit was likewise denied. Indeed, in no English case, excepting the Marshalsea, has any person holding judicial commission ever been adjudged responsible to the losing party for his conduct; and, as remarked above, this case was decided on the ground that the magistrate of a court of limited jurisdiction was, in exceeding his jurisdiction, a trespasser and not a judge. Lord Coke rendered this judgment; and it is but just to say that it has not added to his fame. But he atoned somewhat for it shortly afterwards; for, in Floyd vs. Barker (12 Co., 23,) he held grand jurors exempt from suit for their conduct as such, and went out of the record to throw around judges the same protection, so far as the authority of his great name would do so. In the face of such authority, the inquisitive lawyer will be surprised at the number of such actions brought against judges. Nor have such cases been confined to England. The great AMERICAN PRECEDENT on this question was decided in 1810 by New York Supreme Court (Yates vs. Lansing, 5 Fohns., 282). The chancellor of the State committed a man for contempt. He was released on habeas corpus. The chancellor again imprisoned him forty-eight hours. On his release, he sued the chancellor for $1,250, under a statute which fixed this sum as a penalty, recoverable to the use of the injured man, from any person who aided in recommitting, the second time, on the same ground, onewho had been discharged on habeas corpus. The chancellor pleaded his office and averred his conduct to have been as judge. On issue joined on demurrer to the plea, the action was dismissed. Unlike the case of the imprisoned juror, this suit against the chancellor was denounced as an outrage; for it was held that the action of the chancellor was right, and that plaintiff was improperly discharged on the first habeas corpus, and very properly committed by the chancellor the second time. But the court seized the opportunity to deliver an exhaustive opinion, ably and elaborately rooting in American soil the time-honored English doctrine on this subject. Chancellor Kent was then Chief Justice, and delivered the opinion, which is marked with unusual warmth. Notwithstanding, one judge expressed his dissent from some of the propositions enunciated, and on the main question pronounced no opinion. It is believed that few American judges have been so attacked, and that none have ever been held liable. It were idle to comment, before this learned audience, on the salu. tary influence of this rule. It is strange, indeed, that any enlightened. people would permit its judiciary to be so harassed. And yet IN CULTURED FRANCE, the code of procedure expressly accords to the aggrieved party a right of action, in prescribed cases, against the judge who decides against him. It seems that such has always been allowed. Not till 1540 wasthis right limited to cases of fraud on part of the judge. Prior to that. time, he was held liable when he acted "without excuse"; which would cover just such a variety of cases as the tribunal trying the cause might happen to think included in the meaning of "excuse." Data are not at hand to show how this execrable rule is made use of, nor how often the French judge is dragged before the courts to answer for his decis- ions. It is reasonable to suppose such spectacles more frequent than pleasant, if France, like some other States, nurtures the hungry lawyer so ravenous for a fee that, as Job's war-horse did the battle, he "smelleth" the law suit "afar off." If comparisons are odious, we need not mar this occasion by measuring the latter by the former Circuit Judges. And yet it may interest us to glance at some of the former, if thereby the latter will be illustrated. If time availed us, we would doubtless love to linger longer in contemplation of THEIR SPLENDID EFFIGIES. If biography is history teaching by example, we may learn how a great lawyer and an unusually erudite man may disfigure his career by an exhibition of superstition which the meanest judge in this day cannot even appreciate. Such we see, when Sir Mathew Hale instructed the jury that no doubt could be entertained that "such persons as witches do exist." So, we are struck with the extent to which the duties of the bench absorb the mind of a conscientious judge, when we hear Lord Tenterden, in the very article and delirium of death, exclaim with his last breath, "Gentlemen of the jury, you may now retire." So we are astonished at the depth of feeling which a judge may develop in a cause when we see Lord Ellenborough, trying his last case, in which he displays so much of interest that the trial became almost a controversy between the judge and the defendant; and, when the jury disregarded the judge and found for defendant, so mortified at the verdict that to it is attributed the hastening of his death. Our devotion to the supremacy of the civil over the military power is gratified, when we observe Lord Holt, warning the squad of soldiers that if they fired on the mob and one man should be killed, he would see to it that "every soldier in the company was hung;" and going in person with the officers of court, and dispersing the mob without bloodshed. We are reminded, when we think of Lord Hardwicke, of those noble words of his which ring through all the halls of justice, a warning against allowing thoughtless feeling to warp the principles of right: "I have always a great compassion for wife and children, yet, on the other hand, it is possible if creditors should not have their debts, their wives and children may be reduced to want." Our eyes are charmed at these and many more such pictures which the memory conjures up. But chief of charmers is THE EARL OF MANSFIELD. Gifted in personal beauty, winsome in manners, learned, polished, profound, eloquent, original; reverencing precedent, but boldly creating where no model appeared; respecting public opinion, but unmoved by the clamors of the populace; taking a laudable interest in public concerns, but superior to the prejudice of a partisan; aspiring to statesmanship, spurning the arts of a demagogue; courteous to princes whose causes he tried, dignified to the mob whose fury spent itself in wrecking his home; friend to the rich, benefactor to the poor; admired by the bench, beloved by the bar; the noble Lord stands facile princeps among English judges. Looking back, at the end of a long and useful life, upon the creations of his legal genius-commercial law emancipated, the Marine insurance contract developed, the bill of exchange expanded into the most useful servant of commerce, he may well have exclaimed with the poet-laureate of the Eternal City: "Exegi monumentum, ære perrennius, The modern judge whose career is the subject of detraction may find a grim consolation in the reflection that even Mansfield had his enemies; that he was the object of mob violence; that men of high and low estate united in villifying him; that his career was stormy; that he was accused of distorting the law to suit his own wishes, and of making law instead of construing it. The exquisite gall of Junius was never more viciously displayed than when he aimed his poisoned shafts at the fair fame of Mansfield. But the mob is dispersed; the detractors are for gotten; Junius is admired, not for what he said, but for the way he said it; the storms have lifted, and the memory of this great judge is undimmed. So it ever has been, so it ever will be, with that judge who, conscious of his own integrity, heeds neither fawning nor frowning, and is courageous of truth to the end. It will be remembered that our own history is not entirely wanting in examples of popular persecution of a brave judge. The most notable instance occurred in comparatively recent times. It became the duty of the Supreme Court of the United States to construe a part of the Constitution referring to a question at that time the subject cf political agitation. THE DRED SCOTT CASE came before the court, and the court, regardless of clamor, decided it, by a majority of seven to two, in accord with historic and legal truth. Chief Justice Taney delivered the leading opinion. He had hardly finished its reading before the boasted "Atmosphere of Freedom," from Maine to Kansas, became sulphurous with execrations. The |