memory with a fondness characteristic of the truest and noblest of her sex.

He resumed his practice in Amite County with flattering prospects, but the outbreak of the great civil war so paralyzed all business that there was but little transacted in the courts during its existence. In October, 1865, he was elected circuit judge of the district including the seven counties in the south-west portion of the State, and held the office under that election until he was appointed by the military authorities, from which time he continued as judge until the adoption of the new Constitution, when he was again appointed by Governor Alcorn in 1871, and again, by Governor Stone in 1876, and continued on the bench until January, 1878, when increasing ill-health and infirmities compelled him to resign. He continued to reside at Magnolia, in Pike County, until the 8th of April, 1879, at which time he died, and was buried in Amite County, near the place of his birth.

During the last two years of Judge Smiley's term of office, he ordered the release on bail of several prisoners who were charged with murder, for the conviction of whom there was a clamorous popular demand, and which subjected his conduct to a fierce animadversion. The feeling indeed became fiercely denunciative, yet Judge Smiley pursued the even tenor of his way, and was never known to take the slightest notice of the dissatisfaction. In every instance in which the bail was granted the parties appeared for trial, and not in a single case was there a conviction by the jury of murder.

In other instances he was censured for not bringing certain persons to a speedy trial who were accused of crime, and who were shielded behind the subtlety of appliances over which it is doubtful whether the judge could have any control; but the censure was nevertheless severe, and he was even threatened with impeachment.

The main charge against Judge Smiley was that he had ruled that murder was bailable. The Constitution of Mississippi declares that all cases are bailable except in "capital offences where the proof is evident or the presumption great," and a law, passed in 1875, gave to the jury the power of fixing in their

verdict the penalty of murder at imprisonment for life. But as capital cases are defined to be those in which the penalty is death, Judge Smiley, it seems, was of the opinion that, in view of this definition of the term "capital offenses," the verdict of the jury was necessary to determine the character of the crime, and that consequently all cases were bailable before conviction. And although the Supreme Court afterward declared that such a position was wholly untenable, yet it is difficult to see upon what grounds the opinion of the aged judge could be assigned as a feature of impeachable corruption.

He was also accused of fixing inadequate bail, and particularly was he censured in this respect in the case of the State vs. Bethea. In this case the prisoner was charged with murder, and Judge Siniley fixed his bail at two thousand dollars; but, while the sum seems small as a recognizance to hold one to trial for his life or perpetual imprisonment, in view of the just and equitable spirit which pervades the law of bailment, he was surely justifiable in taking into consideration the poverty of the accused and of the country. It may have been as difficult for Bethea at that time to procure satisfactory surety for two thousand dollars as for other men in other times to find surety for twenty thousand, and the weight of such considerations rests in the sound discretion of the judge.

In politics Judge Smiley was a life-long and ardent Whig, and prior to his promotion to the bench was a strenuous and active advocate of the measures of that party; but when he ascended the tribunal of justice, he abated all political predilections and spirit of partyism, and devoted all his powers to a conscientious and equitable administration of the law, and observed that reticence in regard to politics traditionally cherished by the legal gentlemen of the old school.

Judge Smiley possessed a remarkably kind, gentle, and amiable disposition, and was an attractive and entertaining companion. His conversation was free from anything that partook of censure, animadversion, or ridicule, and with the members of the bar he enjoyed the most intimate and fraternal relations. This was forcibly exemplified on the occasion of his resignation as judge of the Circuit Court. When it was understood at

Natchez that he had determined to take that step, the members of the Adams County bar held a meeting and passed resolutions expressive of regret at the approaching termination of the pleasant relations existing between them and the circuit judge, and presented him with a silver cup appropriately inscribed, and accompanied by kindly remarks and expressions of esteem, which were responded to in feeling terms by the judge. Similar demonstrations of regard were made by the bar of other courts of his district.

His ability as a lawyer and his character as a learned, upright, and fearless judge are well known to the older members of the profession. He was a profound and polished judicial scholar, with a clear head and accurate powers of reasoning. His addresses as an advocate to court and jury, were characterized by clearness, elegance, and force, and his arguments were illustrated by the most lucid and incisive logic. His manner was kindly and conciliatory, and his voice and facial expression pleasing and persuasive. His oratory was usually plain and pointed, and if embellished with rhetorical ornament, it was only for the purpose of illustrating his thoughts. He was one of those lawyers who brought to the Bench and Bar of Mississippi something of the prestige of olden times.

CHAPTER VI.

THE CONSTITUTION OF 1832-REMODELING OF THE JUDICIARY—THE BENCH-EMINENT JURISTS-1832-1850.

WILLIAM L. SHARKEY-COTESWORTH P. SMITH-DANIEL

W. WRIGHT

JAMES F. TROTTER-P. RUTILIUS R. PRAY-JOSEPH S. B. THACHER.

By the Revised Constitution of 1832 the entire system of the judiciary in Mississippi was remodeled, and a broader and more expeditious channel given to the administration of justice. The provisions of that Constitution in reference to the judiciary were in substance as follows:

The first section of the fourth article declared that the judicial power of this State should be vested in one high court of errors and appeals, and such other courts of law and equity as provided for in that Constitution.

By the second section, the high court was to consist of three judges, any two of whom might form a quorum, and the Legislature was required to divide the State into three districts, the qualified voters of which were to elect one of these judges from their respective districts for the term of six years.

Section three required that the office of one of these judges should be vacated in two years, and of one in four years, so that at the expiration of every two years there should be an election of one of the judges.

Section four confined the jurisdiction of the court to such as properly belongs to a court of errors and appeals.

Section five provided for the filling of vacancies by election; but the Governor might appoint if the unexpired term did not exceed one year.

The sixth section required the judges to be thirty years of age at the time of their election.