There is, perhaps, nothing upon which we bestow less care and anxiety, or in regard to which we feel more entire confidence, we might perhaps say indifference, than the jurisprudence under which we live. It seems almost to be supposed by many that the administration of justice is something of natural or divine growth, which cannot be essentially improved by culture or deteriorated by neglect. There seems, too, in the common mind to be an unaccountable misconception as to the relative importance of a perfect system of laws, and a wise administration of the same. We apprehend that the more common idea in regard to it, among those who give it any consideration, must be that all which is required to secure a perfect system of administrative jurispru

at his superiority over his neighbor, the well-furnished fisherman." But we must say in behalf of our merely literary brethren, as Iago says of theoretic soldiers,

"That never set a squadron in the field,

Nor the division of a battle know
More than a spinster,"

if, indeed, much of their talk is "mere prattle without practice;" and although not commonly wanting in self-confidence or self-conceit, they are in the main men of unquestionably good principle, so far as common honesty, both of purpose and practice, is concerned. They are certainly not dangerous men, being generally too inoffensive to excite much alarm anywhere. Their great defect seems to be produced by constant mental introversion; producing at last a kind of mental and moral strabismus, by which they see objects and interests, in a perverted light, "like trees walking." Having no other standard upon any subject, but their own consciousness and reflection, they naturally come at last to measure everything by this standard, and are thus led to condemn it, since nature seldom works by parallels, and especially in its vagaries. We cannot regard such men as worthy of blame, because they do not comprehend the opinions of other men, and therefore regard them as erroneous, often when the error consists wholly in the wrong adjustment of the mental organism of the observer. It is, no doubt, sometimes perplexing and painful to be made the subject of the dissection of such surgeons. But they commonly treat all alike: first come first served; and it is proverbial that a sensitive nature will endure the censure of such operators with less shrinking than their praise-since the former will often cure its own wounds by the absurdity of its reasons, while the latter causes an infliction from which there is no sure escape, except in death or expatriation; which may remind those who attempt to follow the prescriptions of such men, of the comment of the Scotch physician upon the attempted cures of the mere novices in his profession: “It is nae jest to dee, even by the kick of an ass.” But the sciolists in the legal profession are not essentially different from others of the same tribe. They seem impertinent in pushing themselves into the discussion of questions, the difficulties of which they do not comprehend. But this is rather a misfortune than a fault. We wish we had no worse men to answer for.

dence in a country is to enact a written code, consisting of a few brief maxims and rules which shall embody the quintessence of wisdom and justice, and then trust its administration to such tribunals as we may happen to have, since no judge can greatly err in the administration of a perfect code, which it seems to be supposed a very easy task to prepare, provided it be only in the form of a code!

But the experience of the ages will show that the most perfect code of laws, if it were possible of attainment, can go but a short way towards securing perfect justice, either public or private. That depends far more upon the living voice of the administrators of the law, upon the judges and the bar in its active administration, than upon the nature or perfection of the code. The body of the law of modern Europe, upon the Continent, has been much the same in all countries for the last thousand years, being but the adoption and accommodation of the Roman civil law; and the same is true of the common law of England for many centuries past. There has been but little change except in regard to minor details, and these have been more affecting administration than right. But in all this time there has been in all those countries every variety of judicial administration, from the highest and purest to the most debasing and degraded; so that the bar and the bench, the former producing the latter, have, in fact, more to do with the jurisprudence of a country than all other influences combined. The administration of the law is the only practical school of jurisprudence, legislation being in truth but experimental or tentative.

It is in the courts of justice alone that the fundamental principles of all systems of jurisprudence are originally elaborated. Sir James Mackintosh says: "There is not, in my opinion, in the whole compass of human affairs, so noble a spectacle as that which is displayed in the progress of jurisprudence, where we may contemplate the cautious and unwearied exertions of wise men, withdrawing every case, as it arises, from the dangerous power of discretion and subjecting it to inflexible rules, extending the dominion of justice and reason, and gradually contracting within the narrowest possible limits the domain of, brutal force and arbitrary will." And although this may have been intended, in some sense, as an encomium upon legislation, it evinces a thorough conviction that experience is the only sure teacher in

these matters, and that can only be attained in the schools of living judicial administration. All beyond this is, at best, but speculation and conjecture. All the codes, and all the books in the world, whether ancient or modern, at home or abroad, know nothing, and teach nothing except what is first learned in the courts. Constitutional liberty is indeed impossible without law, and law is impossible to be maintained in a free country without a pure, a firm, and a wise administration of the law, both civil and criminal, securing public and private justice as well between party and party as between the citizen and the state.

We should be prepared to believe that in all free countries not only the liberty, but the peace and happiness of the people, depend more upon the legal profession than upon any other, when we take into account the extent and influence of all the places occupied by its members. They now occupy more places of commanding influence in this country than all other professions combined. They, of course, constitute the entire judiciary of the country, which is in fact the very balance-wheel that regulates and controls all the other governmental machinery in the nation, and in all its departments, both state and national. They are in the speaker's chairs of almost every legislative assembly in the land. They appoint all the committees, who do the main work of legislation; who pass upon all the bills; remove all accidental obstructions, and finally place every legislative measure upon the sure track towards success or ruin. And they not only appoint all these committees, but are themselves at the head of all the more important ones, and mainly make up their subordi nate members. And the debates, such as they are no doubt poor enough, but even written speeches, memorized or read, must be supposed to have some influence-are mostly made by the profession. And much the same may be said of the executive department of the government, both state and national. Members of the profession are found in large proportion among the governors of states, and in the subordinate departments of the state administration.1

'Among the members of the present House of Representives there are one hundred and thirty-one lawyers, twenty-five farmers, twenty-four merchants, eleven physicians, eleven journalists, six bankers, five manufacturers, four lumbermen, three railroad managers, three general business, two clergymen, and one

teacher.

But we have said far more than we purposed when we began. We have shown, we trust, need enough of a higher standard of professional honor and principle, as well as practice, and some of the more embarrassing obstacles in the way of any effectual reform, so long as the public demand these debasing and degrading services at the hands of the profession. But it is something to say of our profession, that it is no worse than other departments of work and life in the country, and certainly no worse than the people desire it to be. I. F. R.

RECENT AMERICAN DECISIONS.

Supreme Judicial Court of Maine.

HENRY BAKER AND WIFE v. CITY OF PORTLAND.

HENRY BAKER v. SAME.

The fact that, when a resident of a city was injured by reason of a defective way, which the city was bound to keep in repair, he was driving at a "faster rate than six miles an hour," in violation of a city ordinance, is no bar to his right to recover damages for such injury, if such driving did not in any degree contribute to produce it.

The fact that the jury failed to agree upon the answer to the question whether the plaintiff was driving at a faster rate than six miles an hour, does not render it reasonably certain that a general verdict for the plaintiff, in such action, is

erroneous.

THIS was an action on the case, for an injury occasioned by a defective highway. The plaintiffs suffered serious damage in person and property on the evening of October 13th 1868, by reason of the upsetting of the carriage in which they were riding, in consequence of running over certain piles of stones which had been dumped in the roadway on Cumberland street, by persons in the employ of the street commissioner, and left there over night, without guards or lights, to protect or warn the traveller. The buggy and harness were well made and in good order, the horse well broken and kind, though spirited, the street much frequented, and the evening too dark for a man in a carriage to see obstacles of that description on the ground.

H. Baker testified that he was driving not over five miles an hour, when the accident occurred. The defendants offered evidence tending to show that he was driving at a rate exceeding six miles an hour.

There was a city ordinance prohibiting driving at a faster rate than six miles an hour, under a penalty of not less than five, nor more than twenty dollars.

The presiding judge instructed the jury, that if plaintiffs were driving at a faster rate than six miles an hour, when thrown from the carriage, yet if such driving did not in any degree contribute to produce the injuries complained of, it would be no bar to their right to recover.

The case now came before this court on exceptions by defendants to this instruction, and also on motions to set aside the verdict (which was for the plaintiffs) as against law and evidence.

Davis & Drummond, for plaintiffs.

J. W. Symonds, City Solicitor, for defendants.

The opinion of the court was delivered by

BARROWS, J.-Counsel for the defendants cite a strong line of cases, in which our own and other courts have held city ordinances of this and like character, as binding on all who have actual or constructive notice of their existence, and as having the force of statute law within the limits to which they apply. And also cases in which it appears to have been held with more or less distinctness, that a party seeking a remedy in damages against a town or city or other corporation, charged with the maintenance of a way or bridge, is not entitled to recover, if at the time of the accident, the party plaintiff was violating a law of which he was bound to take notice.

But in all this latter class of cases, it will be seen upon examination that the wrongful act of the plaintiffs either was, or was assumed to be, in some manner or degree, contributory to the production of the injury complained of, so that the precise question here presented was not under consideration in any of them. They cannot be deemed authorities adverse to the instruction here given, if the point was not raised or considered. Thus in Heland v. Lowell, 3 Allen 407, it seems to have been taken for granted on all hands, that the plaintiff's want of care, evinced in the violation of the city ordinance, was one of the efficient causes of the accident. There may have been something in the evidence which made it certain that it was so, in which case it