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gansetts, delivered in Providence, and the practice from a few antiquated books of other on the idea of the Supernatural forms. As a practitioner at the bar, acamong the Indians, delivered in Boston. cordingly, his pleadings were not always Deeply interested, however, as was Mr. in the most perfect form; and so little tact Durfee in the study of the early history of had he for presenting in array the details his native State, he had not the patient, of common cases, that his arguments might, plodding mind of a genuine antiquarian. perhaps, be said to have been equally reThe laborious search after isolated facts, the markable for dullness and for obscurity, tedious following out of details, the weigh- except when a brilliant bonfire could be ing of authorities, the comparison of dates, made, by applying to the mass of accuthe collating of manuscripts, were not at all mulated facts the torch of some great in consonance with his intellectual tastes principle. Thus Mr. Durfee was elevated and habits. His mind was chiefly intent to the bench, of which he became, at the upon tracing the chain of causes and ef- end of a couple of years, the Chief Justice, fects in history; and his studies in this with but an imperfect legal education, and department of knowledge derive whatever no great experience of practice in courts. value they may have, from the method in These were his deficiencies; and they had which the facts are marshalled-from the a natural foundation in his want of fondlight they throw upon the philosophy of ness for a profession, to which the charachistory.
ter of his mind was ill adapted. But if In the year 1833, Mr. Durfee was again his defects, as a judge, were striking, his returned to the General Assembly, as a qualifications were no less rare. He did representative of the town of Tiverton; not bring to the bench the highest attainbut was soon afterwards raised to a more ments of a lawyer ; but he had, at least, important sphere of action, by being elected all the virtues of a man. An incorruptian Associate Justice of the Supreme Judi- ble love of justice hedged him about. His cial Court. For this office his legal quali- delight in the study of philosophy, from fications were not great. He had entered the heights of which he descended to the profession of the law at about the come into the forum, made him eminently period, indeed, when the Rhode Island disinterested in dividing the word of truth bar was as able and as celebrated, in pro- between man and man. A high, soverportion to its numbers, as any in the United eign moral sense led him generally to see States. Though it had then lost, in the the right, and to uphold it. If he was commanding eloquence and the compre- liable sometimes to err from not giving hensive knowledge of James Burrill, its sufficient force to precedents, still few principal ornament, it could still boast of men could reason more logically from the classical attainments of Asher Robbins, principles; and if his mind was not enthe elegant learning and brilliant oratory dowed with that quickness in applying of William Hunter, the ready wit and these principles to the multifarious quesimpassioned satire of Tristam Burges, the tions arising in practice, so necessary in a legal erudition of Nathaniel Searle, and judge at nisi prius, it was gifted with that the clear, strong common sense of Ben- logical power of ratiocination which bejamin Hazard. These were illustrious longs to the great chancellor, and with civilians, all. Nevertheless, the ordinary that penetrating common sense, which, means for the study of the law, at that after due reflection, finds out the essential time, were as imperfect as the occasions, truth of a case. As possession is said to on which a bigh degree of legal proficiency be nine-tenths of the law, and self-posseswas called for, were infrequent. Mr. sion is equally nine-tenths of him who is Durfee studied his profession with his fa- appointed to declare it, it must be conther, a self-educated, and somewhat heavily fessed that, in ordinary cases, Chief Jus. moulded, though sensible country esquire, tice Durfee had not always his faculties the whole of whose law library could have under such ready control as would have been transported in his saddle-bags. The enabled him at once to seize upon the son, therefore, came to the bar, having small salient points in a question of fact; derived his knowledge of the principles of but, on the other hand, there was this law mostly from Blackstone, and of its advantage, even in such cases, that they
were sure never to be prejudged ; and the and anarchy. Let us see if our duties are so evidence always had a chance, in due time jumbled together, that we, as a court, can perand place, to produce its proper effect.
form the duties of a jury; and you, as a jury, It was not on the smallest, but the
can perform the duties of a court. It is the greatest occasions that the late Rhode duty of this court, and of all other courts of
common-law jurisdiction, to decide upon what Island Chief Justice appeared to the best evidence shall pass to the jury, and what shall advantage. Let but a question arise in not. Questions as to what is evidence and volving the grave principles of constitu- what not, will arise, and in all time it has been tional law, or the fundamental interests made the duty of the court to decide them. It of society, and no man addressed himself is also the duty of this court, as of all others of to his work with more vigor and more
like jurisdiction, to decide what shall pass to
the jury as the law of the land, touching the fidelity. His physical and his moral indictment on trial
, and what shall not; for courage were alike remarkable. As no
questions as to what is law, and what is not situation of imminent bodily peril could law, will in like manner arise, and the law has for a moment disturb his mental self-appointed none but the court to decide them. possession; so no unmanly fear of conse If it errs in its decisions, it can correct them quences could make his decision swerve,
on a motion for a new trial, if the verdict be but a hair's breadth, from the direct line of against the prisoner ; if it wilfully decides proof, nor any unworthy considerations of and disgrace. When the evidence has passed
wrong, its members are liable to impeachment expediency jostle, ever so slightly, the to the jury, it is their duty to scan it closely, to equipoise of his moral purposes, when decide what is entitled to credit, and what not ; once deliberately settled. This greatness and when they have determined what the facts of soul and commanding power of argu- are, that are proved or confessed, they apply the mentation are well illustrated in his few law which has been given them to the facts published “Charges.” In that made on
thus ascertained, and then acting as judges both
of the law and the evidence, return a verdict, the late trial for treason in Rhode Island,
as to them, deciding under their oaths, may may be found also a characteristic speci- appear to be right. Here is no conflict of men of his large philosophical common duties. The jury acts in harmony with the sense ; and we hesitate not to say, that court, and the court with the jury.”—Pitman's nothing ever came from the English bench, Report of the late Trial for Treason in Rhode going as far back as Lord Mansfield, or
Island, p. 121. from the American bench, coming down The most important of Chief Justice as late as Judge Story, which better stated Durfee's charges is, perhaps, that delivered the point, that the jury have not the right to the grand jury during the late rebellion to determine the law of a case, nor the in Rhode Island. Of this no less can be court to decide on the facts of it. The said, than that it is ne of the ablest passage is as follows:
papers ever written upon the fundamental “ In discharging this duty, (I speak not for forcible application of them to the great
principles of American liberty, with a most myself merely, but for the court,) it is of some importance to know what the duties of a court question then agitated in that State. And are, and what the duties of a jury are; for they so violent was that agitation, so imminent cannot be one and the same in relation to the the danger that the authority, not only of
If it be our duty to decide what particular, but of all laws, would be rethe general law of the land is, it is not your sisted by force of arms, that the Chief duty also to decide it. If it be your duty to ascertain what the facts are, and then apply
Justice felt compelled, laying aside the the law to the facts as you find them, it is not ordinary etiquette of official station, to our duty to do the same. A judicial tribunal,
sink the judge in the citizen, and deliver which is but a growth of the wisdom of ages, the substance of his charge, in the form of is not so absurdly constituted as necessarily to lectures, in several of the larger towns of bring the court into conflict with the jury, and the State. His argument consisted more the jury into conflict with the court, and thus of a logical statement of important truths to defeat all the ends of justice. If such were the state of things, we could have no law; sentation of the facts in the case ; was
in political science, than an orderly prewhat the court did the jury might undo; what the jury did the court might undo; and thus, rather speculative than historical: still, at the very heart of the system, would be such was the clearness and force of his found, in full operation, the elements of discord | style, such the sustained fervor of his
delivery, such the weight of his private | tower on mound and mountain ; let them and public character, that it was listened rise from the corners of our streets, and to in breathless attention by crowded as in our public squares, that childhood may semblies, and produced on the popular sport its marbles at their basements, and mind all the effect of an argument com- lisp the names of the commemorated dead, prehended, even if it were not. No man as it lisps the letters of its alphabet." saw more clearly, and declared more boldly The lighter graces of his mind, however, than he, what would be the social and are more fully manifested in his unpubpolitical consequences of the attempt then lished lectures on the Indians, and in his made to disjoin liberty from law; and no minor poems, one of which, entitled Life's man actually did more to avert them. A Voyage, is hardly less beautiful than the truer patriot was never moulded in Rhode most suggestive allegories of Coleridge or Island earth, nor a braver man. Called of Bürger. We copy it, by permission in the course of the insurrection to the performance of the most difficult and important duties, both as a private citizen
Life's VOYAGE. and a public officer, he did them all well,
There rose amid the boundless flood and with as little pretension or display as
A little island green ; he would have held his own plough-tail in And there a simple race abode, the field, or have risen to charge the jury Which knew no other scenein a case of horse-stealing. The literary quality of the Chief Justice's
Save that a vague tradition ran, mind may best be seen in his Phi Beta
That all the starry skies
Bore up a brighter race of man, Kappa Oration, and in his Discourse before
Robed in the rainbow's dyes. the Historical Society. The style of these productions, although, as in his other writ
A youth there was of ardent soul, ings, slightly blemished by the occasional Who viewed the azure hue, use of a quaint or newly coined word, and
And saw the waves of ocean roll of forms of expression not in accordance Against its circle blue. with the best usage, is characterized by
He launched his skiff, with bold intent uncommon vigor and perspicuity. Gen
To seek the nations bright, erally full and flowing, the current of his
And o'er the rolling waters went thoughts sometimes rushes forward with
For many a day and night. the headlong impetuosity of true eloquence; yet while the accumulated mass
His lusty arms did stoutly strain, of argument moves majestically on, a play Nor soon their vigor spent ; ful imagination wreaths the surface into All hope was he right soon to gain, ever-changing circles, and covers it with
And climb the firmament, sweeping lines of foam, and dancing eddies. This illustrative power of imagination ac
Where glorious forms in garments bright, companies the action of his mind even in
Dipped in the rainbow's dyes, its most abstruse speculation, and its most
And streets, star-paved, should lend their light
To his enraptured eyes.
And then might he his isle regain,
But whilst he plied the bended oar, gregated caravans of Arabs, when, by
The island left his view; night, they pitch their tents together in
But yet afar his bark before
The azure circle flew. the bosom of the desert;" or in the Oration before the Phi Beta Kappa Society,
Yet still did flattering hope sustain when, in advocating the importance of a And give him vigor new; monumental history, he exclaims, “O ! let While still before him o'er the main
build monuments to the past. Let them Retired the circle blue.
Though whirlpools yawned, and tempests made by the master spirits of the race;
And beat upon his head, [frowned, from them, they pass gradually into the And billows burst bis bark around,
common sense of the more intelligent porHope on that phantom fed.
tion of society; and finally become imNor yet had ceased his labors vain,
bodied in social and political institutions. Had not his vigor failed,
This, undoubtedly, is the law of the proAnd 'neath the fever of his brain,
gress of civilization-called, in more popuHis vital spirit quailed.
lar language, the order of Divine Provi
dence in the world. Then Death appeared upon the sea.
The “ Discourse” is an attempt-a very An angel fair and bright; For he is not what mortals say
able one-to trace out the historical deA grim and haggard sprite ;
velopment of the idea of religious tolera
tion. Its origin in history is detected in And“ Thou dost chase,” he said, “my child! the minds of those who first suffered perA phantom o'er the main;
secution for conscience' sake; it was But though it has thy toils beguiled,
dimly shadowed forth in the doctrines of Thou hast not toiled in vain.
the Waldenses and the Albigenses; the “Thou hast thus roused each slumbering might, the idea, more fully understood ; a still
Protestant Reformation was the fruit of And framed thy soul to be Fit now to climb yon starry height: further unfolding of it steered the pilgrim's Come, then, and follow me.
bark to this new continent; and at last, in its
perfect development, it was made the corThe “Oration” and the “Discourse," ner stone of a civil state, erected, on the exhibit, also, a still higher mental attribute banks of the Mooshausic, by those who than those before alluded to—the capacity described themselves as “a poor colony, of philosophical speculation; and are en- consisting mostly of a birth and breeding titled to high rank as illustrations of the of the Most High, formerly from the application of the ideas of philosophy to mother-nation in the bishops' days, and the explanation of history. The former is latterly from the New England over-zealan argument to prove that, in the progress ous colonies.” There the pure idea of reof civilization, discoveries in science and in- ligious freedom was first incorporated into ventions in art precede social and political a constitution of government, in the imimprovements, in the order of cause and mortal phrase, which concludes the comeffect. This is asserted to be the law of pact made by the original settlers of the progress of the race; and its truth is Providence—« only in civil things.” Havillustrated by reference to the social and ing traced the doctrine of toleration up to political consequences of the introduction this point, the “Discourse” proceeds to into Europe of gunpowder, the art of show its operation in the legislation of the printing, the mariner's compass, and the town of Providence; where, indeed, the more recent applications of the power of newly adopted principle stood a good steam. The existence of such a law is chance of being well put to the test, for if here rather assumed than proved; but the Dr. Mather is to be credited, the settlement evidence in favor of it is more fully set was “a colluvies of Antinomians, Familists, forth in the author's system of philosophy Anabaptists, Anti-Sabbatarians, _Armincontained in the Panidea. Perhaps, how- ians, Socinians, Quakers and Ranters; ever, a broader statement of this doctrine everything in the world but Roman Cathowould have furnished a more solid basis lics and real Christians; so that if a man for the argument. For if the improve had lost his religion, he might find it at ment of social and political institutions is a this general muster of opinionists.” The result of discoveries and inventions in action of this fundamental principle is next science and art, these latter terms must be shown in the formation and government of understood as comprehending all general the sister settlements of Newport, Portstruths discovered, whether in the world of mouth and Warwick, and the course of lematter or the world of mind, together with gislation after their union with Providence their applications. In the first instance, under the first charter, when, too, it was all such discoveries and inventions are maintained in circumstances of most trying
difficulty, growing out both of the domes- | line to his character—"originality of contic and the foreign relations of the Planta- ception in design, and unyielding persetions. In short, the practical working of verance in execution.” He represented this great prolific truth of the freedom of the conservative element in the infant conscience is ably, though briefly, exhibit- State; while the wrong-headed, but stronged not only in the whole course of Rhode minded Harris, who contended that “who- , Island legislation, and in its influence in soever conscientiously disbelieved the auforming the distinctive features of the thority of human government, ought to be Rhode Island character, but also in its re- exempted from the operation of its laws, moter effects on the legislation of the other was the first Jacobin, and the head of the American States, and on the establishment hopeful battalion of reformers in Proviof the Federal Constitution.
dence. Graphic but brief descriptions are Besides the main source of its interest, given, also, of the zealous John Clarke, this Discourse derives also no little value the good Samaritan of Aquidneck; of from its very successful delineations of the William Coddington, staid and worthy, character of the leading settlers of the who “ had in him a little too much of the Plantations. The picture introduced of the future for Massachusetts, and a little too village of Providence, the principal theatre much of the past for Rhode Island ;” and upon which these persons acted, is so good of Samuel Gorton, as profound as mystia specimen of the author's power of cal, the clouds round about whom became, imaginative description, that we give place in certain aspects, transfigured even into to it.
a skirt of glory, as of one who looked on
the face of God. Men like these, it was, “ Would that it were in my power, by a mes who stamped their image indelibly on the meric wave of the hand, to bring Providence Rhode Island character. Hence, that atbefore you, as she then was. You would see tachment to freedom of opinion, which has the natural Mooshausic, freely rolling beneath been the birthright of all their descendhis primeval shades, unobstructed by bridge, ants, as well as that jealousy of the cleriunfringed by wharf or made land, still laving his native marge-here expanding in the ample cal order, which prevails even to this day cove—there winding and glimmering round among them. Hence, too, is it that, while point and headland, and, joyous in his native none have displayed more gallantry of acfreedom, passing onward, till lost in the bosom tion than the Rhode Islanders, whether on of the broad-spreading Narragansett. You our land or our lakes, they have, until rewould see, beneath the forest of branching oak cently, been behind the other New Engand beach, interspersed with dark-arching land States in their patronage of common cedars and tapering pines, infant Providence, in a village of scattered log huts. You would schools, and the higher institutions of see each little hut overlooking its own natural learning. The man of independent mind, lawn, by the side of fountain or stream, with its not of cultivated tastes, has hitherto been first rude inclosure of waving corn ; you would their favorite exemplar. The man of see the staunch-limbed draught-horse grazing mother wit—the advocate at the forum, the forest glade ; you would hear the tinking who, not encumbered too much by other of the cow-bell in ihe thicket, and the bleating men's opinions, relied boldly on his own of flocks on the hill; you would see the plain, home-spun human inhabitants—not such as native resources, audax et semper paratus ; tailors and milliners make, but such as God the divine, who drew in his inspiration made; real men and women, with the bloom of direct from the breath of the Almighty, health on their cheeks, and its elasticity and and could make his boast that he had vigor in every joint and limb. Somewhat of
never slept under the roof of a college; an Arcadian scene this—yet it is not, in reality,
the landed proprietor, who administered precisely what it seems. Historical Dis
justice among his neighbors without the course, p. 13.
formalities of the courts, whose downright Of this little community, even then di sense uttered itself in contemptuous defivided into two hostile parties, Roger Will- ance of the laws of the King's English, iams and William Harris were the chief who swore by his own right hand and leaders. To the former is very justly changed not; these have been the popular ascribed the possession of two intellectual idols of the Narragansett commonwealth. traits, which gave a strongly marked out Common sense for there has been this