The most perfect administration of justice between man and man, and the strong confidence of the public in the justice of our tribunals, stand beyond all other social benefits, and should be purchased even by the sacrifice of those social advantages, however great, arising from men meeting together for the common purpose of aiding in the administration of justice. Unless, indeed, the main object of any machinery be effected in the best and most perfect manner, the ingenuity exhibited in construction, and the collateral merits of the machinery itself, will by no means justify its employment. The main object of legal tribunals is the production of justice. Other social and political advantages are but collateral.

The political uses of the institution are admitted to be undeniably great. Juries have often stood between a tyrannical government and its hated victims. They have also, and this, too, in later times, protected miscreants, who have been saved from the penalty due to their proved guilt, by confounding the guilt of cowardly assassination with the virtue of patriotism, and mistaking the rant and fustian of a vulgar speech for the defence, for the outburst of genuine oratory and real eloquence engaged in the cause of freedom. Nevertheless, the security and confidence which the right to trial by jury give to the subject are too great to be sacrificed.

The right to trial by jury we would maintain, therefore, both in criminal and civil causes. But, practically, in the latter we believe its employment should be (as in the county courts) the exception, and not the rule. If the law was amended by an enactment (as, indeed, was proposed many years since), that "all questions of fact in civil suits should be determined by the judge, unless either party shall require them to be determined by a jury," thus inverting the present order of choice existing in the procedure of the supreme courts, a large class of cases would fall naturally and properly to the judge, to the immense saving of public time and trouble. Such tribunal would of course be opposed by a few of the older Nisi Prius advocates, the level of whose power is that of the common jury, and some little prejudice would be felt at first.

There ought to be a fee attached to the summoning of a jury, each member of which ought to receive, as do the members of a special jury, a proper fee for their attendance. Such fee ought not to amount to a barrier in resorting to a jury, but should be a consideration. It is said the cost of a special jury is about twenty guineas (which is too high). That of a common jury should be, we would suggest, about one-third or onefourth of this sum. There should be also a much larger admixture of the class whence special jurors are drawn with the common jurorsperhaps not less than one-fourth of the former should be mingled with the latter.

Again, the granting of trial by jury should not be a matter of course. It should be by rule, open to opposition by the other side, to be granted at the discretion of the court or judge, and the cost of summoning juries should be also made discretionary. The new system thus introduced would, we believe, work well; and the greater number of cases would be appropriately adjudicated on by the judge.

We are, in fine, inclined strongly to concur with Mr. Brown when he says: :

"Let all ordinary cases be heard by a man of superior discernment and practised skill, whose natural powers have been sharpened by a life spent in forensic contests; who cannot be easily deceived by a witness, because he is conversant with every kind of testimony, nor by an advocate, because he has been an advocate himself; who is fit to hear, and to estimate at its true value, every species of evidence hitherto excluded, which may

open an avenue to the truth; whose attention is not to be exhausted by the length, nor his comprehension distracted by the complexity, of the evidence give the suitor, I say, a man with these qualities, who performs his functions under the public eye, and who is in no hurry to get away to his shop or his farm; whose very trade and business it is to weigh, investigate, and decide on questions of doubt and difficulty; in a word, let the facts be decided by the same experienced judges as the law, and the whole body of the law will feel renewed and invigorated by the change. A great part of its supposed uncertainty will vanish, new light will pour in from sources of evidence now shut up, the scales of justice will be held with even hands, the heavy grievance of new trials will be vastly diminished, the suitor will obtain his rights with greater speed, economy, and certainty, and the criminal will no longer find refuge in the sophistry of counsel, or the weakness of juries."

Where we differ from Mr. Brown in the above forcible passage we have already attempted to show; but we are much mistaken if the general truth of his views are not growing to be those of the most intelligent of the profession and the public.

ELWELL ON MALPRACTICE AND MEDICAL EVIDENCE.

This work is announced as nearly ready. It is by J. J. Elwell, who is one of the professors in the Ohio State and Union Law College, and one of the editors of a new magazine, called The Western Law Monthly. Its author has had practical experience in both the professions whose interests are touched upon in this woak, having practised medicine for ten years before he donned the long robe. We shall look for his work with much interest. It is to be published by Mr. Voorhies, in New York, and is to resemble, in style, type, and paper, “Drake on Attachments." We hope it will resemble that work in some other respects.

REPORTS OF CASES ARGUED and detERMINED IN THE SUPREME JUDICIAL COURT of New HampsHIRE. By GEO. G. FOGG. Vol. 35 pp. 618; vol. 36, pp. 616. Concord: G. Parker Lyon, 1859.

These are the fourth and fifth volumes of Mr. Fogg's series of the New Hampshire reports and they include the cases decided at the July term, 1858, a fact which shows a very considerable degree of dispatch on the part of editor and publisher. The cases are thoroughly and well reported with full abstracts of the arguments of counsel, and the head notes are clear and full. The decisions themselves are excellent in matter and manner, and will repay a diligent perusal; the points decided being often novel and interesting.

We are sorry to hear it rumored that the solid attractions of the bar are likely to cause a change in the composition of the Supreme Court of New Hampshire, for a good judge is better for the public service than an equally good successor.

A TREATISE ON THE LAW OF MERCANTILE GUARANTIES, AND OF PRINCIPAL AND SURETY IN GENERAL. By WALTER WILLIAM FELL, ESQ., of the Middle Temple, Barrister at Law. Second American, from the second and last English edition, with Notes and References to American Decisions. By JOSEPH WILLIAM ALLEN. Burlington: C. Goodrich & Co. 1859.

We have here a reprint of Mr. Fell's excellent treatise upon Mercantile Guaranties, a book of high credit with the profession, both in this country and in England. The references to American decisions are quite exten

sive, occupying a considerable proportion of the volume, but not more than was desirable. The American cases upon the subject have become numerous, and are quite as important to American lawyers as are the English cases. We think the publishers have performed a very acceptable service to the profession in bringing out a second American edition of this valuable book, so thoroughly remodelled. The work in its mechanical execution is highly creditable, and we doubt not will meet a ready sale. REPORTS OF CASES argued and determined in the Courts of Exchequer and Exchequer Chamber. Vol. III. By HURLSTURE & NORMAN. With additional cases decided during the same period, selected from the contemporaneous reports. With references to cases in the American Reports. HENRY WHARTON, ESQ., Editor. Philadelphia: T. & J. W. Johuson & Co. 1859. pp. 1012.

Another volume of the prompt, cheap and valuable reprint of the authoritative English reports. We repeat that the Philadelphia edition of the Common Law Reports of England is now the only American edition, and we advise all our readers to buy it. We intend to buy a complete set of the Exchequer Reports of this series as soon as all the subscribers to the Law Reporter have paid up.

OPINIONS OF EMINENT LAWYERS ON VARIOUS POINTS OF ENGLISH JURISPRUDENCE, chiefly concerning the Colonies, Fisheries and Commerce of Great Britain. Collected and digested from the originals in the Board of Trade, and other depositories. By George Chalmers, Esq., F.R.S., S.A. Burlington: C. Goodrich & Co. 1858.

Here is a well printed book of nearly 800 pages, upon good paper and new type, and containing a large amount of valuable matter for American statesmen, not elsewhere accessible, the former edition having been long out of print. The book begins with a biographical sketch of the authors, more than sixty in number, embracing six lord chancellors, eleven chief justices of England (and Mansfield among the number), lord chief barons, attorney and solicitor generals, bishops, doctors of civil law, and others, not one of whom is unknown to fame. Such a collection. upon such a subject must be invaluable to those who desire to thoroughly master these subjects, and they are every day becoming more important to be correctly understood. We should not expect such a book to find at once a very extensive sale, but the edition will be sure to be called for in time. It only requires to be known.

SPEECH OF JOHN W. ASHMEAD in the case of The People v. James Stephens, indicted for murder in the Court of Oyer and Terminer for the City and County of New York, delivered March 25, 1859.

This able argument of ninety pages, octavo, spoken in a cause of great public interest, reflects much credit on the eloquent counsel, and well deserves to take a permanent place with the standard spoken literature of the bar. The case was of great complexity and the exertions of the counsel on both sides were very great. The verdict was against the the prisoner, and the case is now, we believe, before the Court of Appeals upon important questions of law.

INTELLIGENCE AND MISCELLANY.

JUDICIAL QUALIFICATIONS. - MR. JUSTICE BLACKBURN. - It has often been said that Lord Campbell is not fond of opposing public opinion; that he loves rather to meet it half-way; that he has little of that courage, the most rare and the most necessary quality in modern public men, which can brave the assaults of newspapers, and quietly outlive a popular outcry. Or rather it is, perhaps, meant, not so much that he wants courage, as that he has himself a certain sympathy with clap-trap, that he really does not rise absolutely superior to "the British Lion," "the Protestant Religion," he that lays his hand upon a woman except in the way of kindness," etc. We have heard it stated, that though he is an upright and painstaking judge, yet that it would be better to be tried by some one else if a very great many people very much wished us to be hanged, and said so in a very great many newspapers. He would give us fair play, it is said, yet in his inmost soul he would think all those people ought to be gratified.

Be this as it may, it is not now our business to criticise the Lord Chancellor as a judge. He has at least shown himself courageous in his first important exercise of the high functions which have been newly entrusted to him. We congratulate him on his selection of a judge to fill the vacant seat in the Queen's Bench. He must have known that he should excite the bitter wrath of many disappointed claimants, and that they would have it in their power to give some plausible force to their censure. Mr. Blackburn was a man unknown to fame. He was not great with a jury. No attorney would have chosen him to conduct a cause which required a large person, cunning advocacy, and humorous or ferocious eloquence. His circuit knew little of him. But there were places where he was known. Though he had a large and increasing practice of the most important and valuable kind in the city of London, he was better known to judges than to juries.

Many a man who blazes a provincial star every spring and autumn wanes sadly in the interval. The country attorneys fight for him, the witnesses tremble before him, he is a most difficult animal for my Lords the Queen's Justices to drive; but in a higher legal atmosphere, where grasp of intellect, breadth of view, and subtlely of logic are required, he fades into silence, and sets dumb all term time. The arguments in banco are the true conditions under which to take the measure of a man as a lawyer.

Now we venture to say of the present Mr. Justice Blackburn, that in a difficult argument before the full court he deservedly commanded the highest respect of every judge, and his services were eagerly sought for. Few men have shown themselves better capable of handling with precision and accuracy the complex web of English jurisprudence. He is not only a profound but a systematic lawyer. If anything, perhaps too much so; a little too hard and Scotch in his argument. An English judge, to be perfect, requires a very rare combination of powers, a command over princi

ples which shall prevent our law degenerating into a confused mass of isolated and arbitrary sequences, and a foresight and caution which shall prevent him from tying it up beforehand, and thus depriving it of one of its very highest excellencies, its elasticity and power of covering the ever new cases which arise. Perhaps the newly appointed judge has rather more of the former than the latter power; but his mind is well balanced and sensible; - and though the Lord Chancellor may have disappointed the Profession, we do not think it was in his power to have selected a more solid, capable and conscientious judge.

It is true that if you can find a man who, to profound legal knowledge and that sort of capacity which can take a clear view of intricate legal questions, adds the sort of experience which can only be obtained by the habit of leading at the bar, he will make a better judge than one who has always practised in a stuffed gown; at any rate, a better Nisi Prius judge. But the combination is most rare, and if we must choose between the two we should all of us like to have our causes decided by a lawyer rather than an advocate, however eloquent.-Economist.

EVIDENCE IN EQUITY.-The Queen has appointed a separate commission to inquire into the mode of taking evidence in Chancery.

The Evidence Commissioners are the Lord Chancellor, Lords Lyndhurst, Cranworth, Wensleydale, Chelmsford, Kingsdown, the Master of the Rolls, the Lords Justices, Sir W. Page Wood, the Attorney-General, Sir Hugh M. Cairns, G. M. Gaffard, Esq., Q. C. W. Strickland Cookson, Esq. and G. Tallentine Gibson Esq.

A witty writer (Thoughts on Legal Discontent in relation to Evidence in Courts of Equity) thus described the present state of things

:

It is a case of shipwreck, the state of which has no law, Justice is not done. When we want a witness at all, we want to rub him against the grain, like a black cat in the dark, to bring out the sparks. I mean to examine him thoroughly, and let the judge see for himself the shape and color of the lie, if there be one. The witness before the examiner is the conjuror's wonderful bottle -a thing as old as the Pyramids; we can have driblets of anything we like out of it for the asking. A clever witness that such a thing should be! has ever something of the lapwing, taking short discursive flights, to beguile us away from the nest of veracity; but before the examiner, he is either an automaton much out of order, or a bubbly Jock, all accent and gibberish, or a deliberate rogue, who glorifies his case at pleasure, and shapes it into form and likelihood between the pauses occasioned by the extensive taking down. We can never catch him; he has a vague notion that we like fencing, and are indeed but the converse of himself. He has almost told a lie, or, what is the same thing, let out the truth, and before the next question can be put, tones himself up or down again as the case may be, like a royal academican after hanging, reasons, calculates, qualifies, and the truth or lie is once more gone. The judge, who would easily have seen through all this, is away, and in due time receives it all as so much gospel, and is bound by his office to go mad, that is to say, to reason as rightly as he can on false premises.