ous population, and a greatly enlarged territory, the influence of the executive branch of government was destined to go on gradually augmenting, so the relative importance of the popular body ought to be proportionally increased, by a moderate addition to its numbers.

So broad and catholic were the considerations adduced by the member from Rhode Island in a speech, not long in duration, but of great pith and point, and so well did it express the general sense of the House, that the motion then pending was lost, and the lower number of 40,000 was finally adopted as the ratio.

The other occasion on which Mr. Durfee addressed the House in an elaborate speech, was during the discussion of a subject, which elicited more debate than any which had been presented before that body in many years. This was the bill for "the more effectual protection of manufactures," introduced in the year 1823. During several preceding years, the subject of increasing the protective duties had been brought before the attention of the public by those more directly interested in it, and had given rise to a good deal of discussion in all parts of the country. President Monroe was of the opinion that notwithstanding the prosperous condition of the various branches of domestic industry, a further augmentation of duties, particularly on foreign cotton and woolen goods, would have a favorable effect on the domestic manufacture of those articles, without operating injuriously on any of the other great industrial interests of the country. This opinion, expressed in more than one of his annual messages, was at length followed by legislative action on the subject. The members of Congress from the Southern and a part of the Eastern States, whose constituents were principally employed in agriculture and commerce, zealously opposed the proposed increase of the rates of duty. Rhode Island being then extensively engaged in a prosperous commerce, and also considerably interested in the newly established manufacture of cotton goods, her representatives were left at liberty to take an unbiased and patriotic view of the great questions involved in a change of the tariff laws. Accordingly, Mr. Durfee-in speech which evinced an understanding

e general systems and the existing

| state of trade, both foreign and domestic —a statesmanlike study of the history of European legislation on subjects kindred to the one under discussion-in short, a clear comprehension not only of the great principles of political economy, but of the degree of their applicability to existing circumstances confined himself entirely to showing in what manner the bill before the House would affect the leading interests of the country, and the permanent policy of the government. He expressed himself as decidedly in favor of protecting the manufacturing interest, whenever it was in need of the aid of legislation; but as this branch of national industry was already in a prosperous condition, he considered the proposed change in the laws uncalled for. It would occasion, in his opinion, a forced and unnatural passage of capital from the pursuits of agriculture and commerce into that of manufactures, when, in fact, owing to the action of permanent causes in the country, this change was then taking place with sufficient rapidity, and in a manner both orderly and healthful.

This speech of Mr. Durfee, like all his other similar efforts, was premeditated long beforehand, fully written out, and committed to memory; for he possessed no power of extemporaneous debate, or even conversation, on themes not before made the subject of meditation. But when, in the company of a few chosen friends, his favorite topics were called up, he would often converse with great effect; enriching his discourse with the truths of philosophy, and the facts of history; adorning it with choicest quotations from prose and verse; enlivening it with the overflowing of sentiment, or with the merriment of jest and anecdote; and sometimes bringing the conversation to a conclusion by one of those genial bursts of inspiration, which make all further speech impertinent.

In this particular case, however, his endeavors, together with those of the other opponents of the bill, were unsuccessful; and it passed by small majorities through both houses of Congress in the year 1824.

Having failed, owing to the operation of local and personal causes, of being elected to the nineteenth Congress, Mr. Durfee was again called by his fellow townsmen to

gansetts, delivered in Providence, and the other on the idea of the Supernatural among the Indians, delivered in Boston. Deeply interested, however, as was Mr. Durfee in the study of the early history of his native State, he had not the patient, plodding mind of a genuine antiquarian. The laborious search after isolated facts, the tedious following out of details, the weighing of authorities, the comparison of dates, the collating of manuscripts, were not at all in consonance with his intellectual tastes and habits. His mind was chiefly intent upon tracing the chain of causes and effects in history; and his studies in this department of knowledge derive whatever value they may have, from the method in which the facts are marshalled-from the light they throw upon the philosophy of history.

In the year 1833, Mr. Durfee was again returned to the General Assembly, as a representative of the town of Tiverton; but was soon afterwards raised to a more important sphere of action, by being elected an Associate Justice of the Supreme Judicial Court. For this office his legal qualifications were not great. He had entered the profession of the law at about the period, indeed, when the Rhode Island bar was as able and as celebrated, in proportion to its numbers, as any in the United States. Though it had then lost, in the commanding eloquence and the comprehensive knowledge of James Burrill, its principal ornament, it could still boast of the classical attainments of Asher Robbins, the elegant learning and brilliant oratory of William Hunter, the ready wit and impassioned satire of Tristam Burges, the legal erudition of Nathaniel Searle, and the clear, strong common sense of Benjamin Hazard. These were illustrious civilians, all. Nevertheless, the ordinary means for the study of the law, at that time, were as imperfect as the occasions, on which a high degree of legal proficiency was called for, were infrequent. Mr. Durfee studied his profession with his father, a self-educated, and somewhat heavily moulded, though sensible country esquire, the whole of whose law library could have been transported in his saddle-bags. The son, therefore, came to the bar, having derived his knowledge of the principles of law mostly from Blackstone, and of its

practice from a few antiquated books of forms. As a practitioner at the bar, aecordingly, his pleadings were not always in the most perfect form; and so little tact had he for presenting in array the details of common cases, that his arguments might, perhaps, be said to have been equally remarkable for dullness and for obscurity, except when a brilliant bonfire could be made, by applying to the mass of accumulated facts the torch of some great principle. Thus Mr. Durfee was elevated to the bench, of which he became, at the end of a couple of years, the Chief Justice, with but an imperfect legal education, and no great experience of practice in courts. These were his deficiencies; and they had a natural foundation in his want of fondness for a profession, to which the character of his mind was ill adapted. But if his defects, as a judge, were striking, his qualifications were no less rare. He did not bring to the bench the highest attainments of a lawyer; but he had, at least, all the virtues of a man. An incorruptible love of justice hedged him about. His delight in the study of philosophy, from the heights of which he descended to come into the forum, made him eminently disinterested in dividing the word of truth between man and man. A high, sover- į. eign moral sense led him generally to sec the right, and to uphold it. If he was liable sometimes to err from not giving sufficient force to precedents, still few men could reason more logically from principles; and if his mind was not endowed with that quickness in applying these principles to the multifarious questions arising in practice, so necessary in a judge at nisi prius, it was gifted with that logical power of ratiocination which be longs to the great chancellor, and with that penetrating common sense, which after due reflection, finds out the essential truth of a case. As possession is said to be nine-tenths of the law, and self-possession is equally nine-tenths of him who i appointed to declare it, it must be confessed that, in ordinary cases, Chief Jus tice Durfee had not always his faculties under such ready control as would hav enabled him at once to seize upon th small salient points in a question of fact but, on the other hand, there was the advantage, even in such cases, that the

were sure never to be prejudged; and the evidence always had a chance, in due time and place, to produce its proper effect. It was not on the smallest, but the greatest occasions that the late Rhode Island Chief Justice appeared to the best advantage. Let but a question arise involving the grave principles of constitutional law, or the fundamental interests of society, and no man addressed himself to his work with more vigor and more fidelity. His physical and his moral courage were alike remarkable. As no situation of imminent bodily peril could for a moment disturb his mental selfpossession; 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 |

and anarchy. Let us see if our duties are so jumbled together, that we, as a court, can perform the duties of a jury; and you, as a jury, can perform the duties of a court. It is the duty of this court, and of all other courts of common-law jurisdiction, to decide upon what evidence shall pass to the jury, and what shall not. Questions as to what is evidence and what not, will arise, and in all time it has been made the duty of the court to decide them. It is also the duty of this court, as of all others of like jurisdiction, to decide what shall pass to the jury as the law of the land, touching the indictment on trial, and what shall not; for questions as to what is law, and what is not law, will in like manner arise, and the law has appointed none but the court to decide them. If it errs in its decisions, it can correct them on a motion for a new trial, if the verdict be 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 forcible application of them to the great principles of American liberty, with a most 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