If it errs in its decisions, it can correct them on a motion for a new trial, if the verdict be 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 duty of this court, and of all other courts of can perform the duties of a court. It is the greatest occasions that the late Rhode 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 consequences could make his decision swerve, but a hair's breadth, from the direct line of proof, nor any unworthy considerations of expediency jostle, ever so slightly, the equipoise of his moral purposes, when once deliberately settled. This greatness of soul and commanding power of argumentation are well illustrated in his few published "Charges." In that made on the late trial for treason in Rhode Island, may be found also a characteristic specimen of his large philosophical common sense; and we hesitate not to say, that nothing ever came from the English bench, going as far back as Lord Mansfield, or from the American bench, coming down. as late as Judge Story, which better stated the point, that the jury have not the right to determine the law of a case, nor the court to decide on the facts of it. The passage is as follows: "In discharging this duty, (I speak not for myself merely, but for the court,) it is of some importance to know what the duties of a court are, and what the duties of a jury are; for they cannot be one and the same in relation to the same case. If it be our duty to decide what the general law of the land is, it is not your duty also to decide it. If it be your duty to ascertain what the facts are, and then apply the law to the facts as you find them, it is not our duty to do the same. A judicial tribunal, which is but a growth of the wisdom of ages, is not so absurdly constituted as necessarily to bring the court into conflict with the jury, and the jury into conflict with the court, and thus to defeat all the ends of justice. If such were the state of things, we could have no law; what the court did the jury might undo; what the jury did the court might undo; and thus, at the very heart of the system, would be found, in full operation, the elements of discord against the prisoner; if it wilfully decides wrong, its members are liable to impeachment and disgrace. When the evidence has passed to the jury, it is their duty to scan it closely, to decide what is entitled to credit, and what not; and when they have determined what the facts are, that are proved or confessed, they apply the law which has been given them to the facts thus ascertained, and then acting as judges both of the law and the evidence, return a verdict, as to them, deciding under their oaths, may appear to be right. Here is no conflict of duties. The jury acts in harmony with the court, and the court with the jury."-Pitman's Report of the late Trial for Treason in Rhode Island, p. 121. The most important of Chief Justice Durfee's charges is, perhaps, that delivered to the grand jury during the late rebellion in Rhode Island. Of this no less can be said, than that it is one of the ablest papers ever written upon the fundamental principles of American liberty, with a most forcible application of them to the great question then agitated in that State. And so violent was that agitation, so imminent the danger that the authority, not only of particular, but of all laws, would be resisted by force of arms, that the Chief Justice felt compelled, laying aside the ordinary etiquette of official station, to sink the judge in the citizen, and deliver the substance of his charge, in the form of lectures, in several of the larger towns of the State. His argument consisted more of a logical statement of important truths sentation of the facts in the case; was in political science, than an orderly prerather speculative than historical: still, such was the clearness and force of his style, such the sustained fervor of his delivery, such the weight of his private | and public character, that it was listened to in breathless attention by crowded assemblies, and produced on the popular mind all the effect of an argument comprehended, even if it were not. No man saw more clearly, and declared more boldly than he, what would be the social and political consequences of the attempt then made to disjoin liberty from law; and no man actually did more to avert them. A truer patriot was never moulded in Rhode Island earth, nor a braver man. Called in the course of the insurrection to the performance of the most difficult and important duties, both as a private citizen and a public officer, he did them all well, and with as little pretension or display as he would have held his own plough-tail in the field, or have risen to charge the jury in a case of horse-stealing. The literary quality of the Chief Justice's mind may best be seen in his Phi Beta Kappa Oration, and in his Discourse before the Historical Society. The style of these productions, although, as in his other writings, slightly blemished by the occasional use of a quaint or newly coined word, and of forms of expression not in accordance with the best usage, is characterized by uncommon vigor and perspicuity. Generally full and flowing, the current of his thoughts sometimes rushes forward with the headlong impetuosity of true eloquence; yet while the accumulated mass of argument moves majestically on, a playful imagination wreaths the surface into ever-changing circles, and covers it with sweeping lines of foam, and dancing eddies. This illustrative power of imagination accompanies the action of his mind even in its most abstruse speculation, and its most severely logical ratiocination. A beautiful example of the exercise of it may be seen in the Charge to the grand jury, before mentioned, where, in the course of an argument to show what constitutes a State, he says, "A mere proximity of habitations never made a State, any more than congregated caravans of Arabs, when, by night, they pitch their tents together in the bosom of the desert;" or in the Oration before the Phi Beta Kappa Society, when, in advocating the importance of a monumental history, he exclaims, "O! let us build monuments to the past. Let them tower on mound and mountain; let them rise from the corners of our streets, and in our public squares, that childhood may sport its marbles at their basements, and lisp the names of the commemorated dead, as it lisps the letters of its alphabet." The lighter graces of his mind, however, are more fully manifested in his unpublished lectures on the Indians, and in his minor poems, one of which, entitled Life's Voyage, is hardly less beautiful than the most suggestive allegories of Coleridge or of Bürger. We copy it, by permission: LIFE'S VOYAGE. There rose amid the boundless flood Which knew no other scene Save that a vague tradition ran, That all the starry skies Bore up a brighter race of man, Robed in the rainbow's dyes. A youth there was of ardent soul, He launched his skiff, with bold intent His lusty arms did stoutly strain, Nor soon their vigor spent ; All hope was he right soon to gain, And climb the firmament, Where glorious forms in garments bright, And then might he his isle regain, Fraught with a dazzling freight, And lead his kindred o'er the main, To this celestial state. But whilst he plied the bended oar, The azure circle flew. Yet still did flattering hope sustain Though whirlpools yawned, and tempests Nor yet had ceased his labors vain, Then Death appeared upon the sea. And "Thou dost chase," he said, "my child! "Thou hast thus roused each slumbering might, The "Oration" and the "Discourse," exhibit, also, a still higher mental attribute than those before alluded to-the capacity of philosophical speculation; and are entitled to high rank as illustrations of the application of the ideas of philosophy to the explanation of history. The former is an argument to prove that, in the progress of civilization, discoveries in science and inventions in art precede social and political improvements, in the order of cause and effect. This is asserted to be the law of the progress of the race; and its truth is illustrated by reference to the social and political consequences of the introduction into Europe of gunpowder, the art of printing, the mariner's compass, and the more recent applications of the power of steam. The existence of such a law is here rather assumed than proved; but the evidence in favor of it is more fully set forth in the author's system of philosophy contained in the Panidea. Perhaps, however, a broader statement of this doctrine would have furnished a more solid basis for the argument. For if the improvement of social and political institutions is a result of discoveries and inventions in science and art, these latter terms must be understood as comprehending all general truths discovered, whether in the world of matter or the world of mind, together with their applications. In the first instance, all such discoveries and inventions are made by the master spirits of the race; from them, they pass gradually into the common sense of the more intelligent portion of society; and finally become imbodied in social and political institutions. This, undoubtedly, is the law of the progress of civilization-called, in more popular language, the order of Divine Providence in the world. The "Discourse" is an attempt-a very able one--to trace out the historical development of the idea of religious toleration. Its origin in history is detected in the minds of those who first suffered persecution for conscience' sake; it was dimly shadowed forth in the doctrines of the Waldenses and the Albigenses; the Protestant Reformation was the fruit of the idea, more fully understood; a still further unfolding of it steered the pilgrim's bark to this new continent; and at last, in its perfect development, it was made the corner stone of a civil state, erected, on the banks of the Mooshausic, by those who described themselves as "a poor colony, consisting mostly of a birth and breeding of the Most High, formerly from the mother-nation in the bishops' days, and latterly from the New England over-zealous colonies." There the pure idea of religious freedom was first incorporated into a constitution of government, in the immortal phrase, which concludes the compact made by the original settlers of Providence-"only in civil things." Having traced the doctrine of toleration up to this point, the "Discourse" proceeds to show its operation in the legislation of the town of Providence; where, indeed, the newly adopted principle stood a good chance of being well put to the test, for if Dr. Mather is to be credited, the settlement was "a colluvies of Antinomians, Familists, Anabaptists, Anti-Sabbatarians, Arminians, Socinians, Quakers and Ranters; everything in the world but Roman Catholics and real Christians; so that if a man had lost his religion, he might find it at this general muster of opinionists." The action of this fundamental principle is next shown in the formation and government of the sister settlements of Newport, Portsmouth and Warwick, and the course of legislation after their union with Providence under the first charter, when, too, it was maintained in circumstances of most trying difficulty, growing out both of the domestic and the foreign relations of the Plantations. In short, the practical working of this great prolific truth of the freedom of conscience is ably, though briefly, exhibited not only in the whole course of Rhode Island legislation, and in its influence in forming the distinctive features of the Rhode Island character, but also in its remoter effects on the legislation of the other American States, and on the establishment of the Federal Constitution. Besides the main source of its interest, this Discourse derives also no little value from its very successful delineations of the character of the leading settlers of the Plantations. The picture introduced of the village of Providence, the principal theatre upon which these persons acted, is so good a specimen of the author's power of imaginative description, that we give place to it. "Would that it were in my power, by a mesmeric wave of the hand, to bring Providence before you, as she then was. You would see the natural Mooshausic, freely rolling beneath his primeval shades, unobstructed by bridge, unfringed by wharf or made land, still laving his native marge-here expanding in the ample cove-there winding and glimmering round point and headland, and, joyous in his native freedom, passing onward, till lost in the bosom of the broad-spreading Narragansett. You would see, beneath the forest of branching oak and beach, interspersed with dark-arching cedars and tapering pines, infant Providence, in a village of scattered log huts. You would see each little hut overlooking its own natural lawn, by the side of fountain or stream, with its first rude inclosure of waving corn; you would see the staunch-limbed draught-horse grazing the forest glade; you would hear the tinking of the cow-bell in the thicket, and the bleating of flocks on the hill; you would see the plain, home-spun human inhabitants-not such as tailors and milliners make, but such as God made; real men and women, with the bloom of health on their cheeks, and its elasticity and vigor in every joint and limb. Somewhat of an Arcadian scene this-yet it is not, in reality, precisely what it seems." Historical Discourse, p. 13. Of this little community, even then divided into two hostile parties, Roger Williams and William Harris were the chief leaders. To the former is very justly ascribed the possession of two intellectual traits, which gave a strongly marked out line to his character-" originality of conception in design, and unyielding perseverance in execution." He represented the conservative element in the infant State; while the wrong-headed, but strongminded Harris, who contended that "whosoever conscientiously disbelieved the authority of human government, ought to be exempted from the operation of its laws," was the first Jacobin, and the head of the hopeful battalion of reformers in Providence. Graphic but brief descriptions are given, also, of the zealous John Clarke, the good Samaritan of Aquidneck; of William Coddington, staid and worthy, who "had in him a little too much of the future for Massachusetts, and a little too much of the past for Rhode Island;" and of Samuel Gorton, as profound as mystical, the clouds round about whom became, in certain aspects, transfigured even into a skirt of glory, as of one who looked on the face of God. Men like these, it was, who stamped their image indelibly on the Rhode Island character. Hence, that attachment to freedom of opinion, which has been the birthright of all their descendants, as well as that jealousy of the clerical order, which prevails even to this day among them. Hence, too, is it that, while none have displayed more gallantry of action than the Rhode Islanders, whether on cently, been behind the other New Engour land or our lakes, they have, until reland States in their patronage of common schools, and the higher institutions of learning. The man of independent mind, not of cultivated tastes, has hitherto been their favorite exemplar. The man of mother wit-the advocate at the forum, who, not encumbered too much by other men's opinions, relied boldly on his own native resources, audax et semper paratus; the divine, who drew in his inspiration direct from the breath of the Almighty, and could make his boast that he had never slept under the roof of a college; the landed proprietor, who administered justice among his neighbors without the formalities of the courts, whose downright sense uttered itself in contemptuous defiance of the laws of the King's English, who swore by his own right hand and changed not; these have been the popular idols of the Narragansett commonwealth. Common sense-for there has been this advantage has not been displaced by time, when Rhode Island shall stand amid education among the inhabitants of its the larger republics, as fair and imperishhardy hill-sides; a practical ingenuity has able as stood the little temple of Vesta, existed, self-educated, along the course of surrounded by the over-topping fabrics of its busy streams; a proud sense of per- the Palatine and the Capitol, in the magsonal independence has built its humble nificent days when Rome was ruled by the homes in the hunting grounds of Massasoit Cæsars. In conclusion of this subject, and Miantinomo; and while generations and without repeating the observations before the present saw in the State of the made in the progress of our essay, let it be Anchor and of Hope, few monuments of briefly added that in Judge Durfee were an enlightened public sentiment, or of a combined not only all the virtues of the banded Christian charity, they were pre- | earlier type of Rhode Island character, eminently distinguished for the possession with but few of its defects, but also whatof a strongly marked individuality of char-ever in its development at the present day acter, which has given rise to success in is most to be commended. the diverse occupations of agriculture, commerce, manufactures and the mechanical arts, and has introduced into social intercourse the great charm of variety of disposition and unprohibited diversity of opinion. Nor should we omit to add that, in this rough granite of the Rhode Island character, may be found the basis for a superstructure, which shall be supported by all the virtues, and ornamented with the graces of the highest civilization. Already, indeed, a most admirable system of popular education is beginning to elevate and expand the native good sense of this people; the patronage of the higher seats of learning, formerly monopolized by a noble few, is now claimed as the honor of the many; and a new philanthropy, touched no less by the sufferings of the "mind diseas'd," than by the degradation of the mind uneducated, has just constructed a retreat, where to "Raze out the written troubles of the brain; And with some sweet oblivious antidote, Cleanse the charg'd bosom of that perilous stuff Which weighs upon the heart." The principal city of the State can now boast of a private library, second to none of its particular class in the country, and of a public one, rapidly increasing on a plan, in some respects, original and truly scientific; while such specimens of a chaste architectural taste are rising within its limits, such a growing interest in public improvements is passing out from this centre into all parts of the State, and appropriating a liberal share of the general wealth to works of utility and beauty, that one may almost behold, from afar, the coming of the Of the writings of Mr. Durfee, there remains but one to be mentioned, the greatest and the last,-though for reasons which need not here be stated, published anonymously. The Panidea has, indeed, found no readers. Ushered into the presence of our popular literature with a title so uninviting and uncouth, and with a table of contents, the phraseology of which was apparently as unintelligible as it was fantastic, it met with a reception not unlike that which might have happened to an unfashionably clad stranger, from parts unknown, who had intruded into genteel society without a friend to introduce, or a letter to accredit him. The intruder might, nevertheless, have descended from an exalted sphere of existence, though little known; and the work, in fact, is one which we hesitate not to pronounce the most remarkable metaphysical treatise written in this country since Jonathan Edwards's Inquiry into the Nature of the Will. If not a complete and elaborate intellectual system of the universe, it is, at least, a model in miniature of one-wrought with exceeding skill, harmonious in all its parts, entire within itself. Although, as in other branches of knowledge, the author's reading in philosophy was small, being confined chiefly to the writings of Coleridge, the English translations from Cousin, and some brief epitome of the history of metaphysics, yet the Panidea lays no claim to originality in its general results. It is a system of eclecticism; similar in most of its doctrines to those before advocated by the ideal or transcendental philosophy; sometimes resembling the views of Berkeley or Spinoza, and sometimes approaching to the conclusions of Fichte or Schelling. |