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made by an inferior court-a court corresponding in many particulars to a modern police court—and with a jurisdiction and efficiency comparable to that of a magistrate or justice of the peace. If the decision was wrong, or even if unsatisfactory, there was ample remedy by an appeal or writ of error. The assembly of New York at that time, I believe, was the court of last resort in New York, and might, of their own initiative, probably, have caused a proper review to be had. The Mayors Court was properly surprised that “a case of such magnitude should receive its first impression from a court of such limited jurisdiction,” “from magistrates actively engaged in establishing the police of a disordered city,” but the members were in a measure consoled by the intimation in argument that it was “probable, whatever might be their determination, the case would not end there.” Why was not the case appealed? The Assembly's censure was clearly not only wrong, but childish.
In Trevett v. Weeden, the act under which the Superior Court of Judicature refused to take jurisdiction was not only unjust but unconstitutional in more regards than one, in that it deprived of the constitutional right of trial by jury, provided for a new and an unconstitutional court, in that a less number of the judges of the court required to constitute a quorum were designated as a court to try violations of the act, and made the decision of these judges final, specifically depriving of the constitutional right of appeal. The judges were unquestionably right in their decision, and if they were not, there was ample remedy by appeal, error or certiorari, or possibly by mandamus in a higher court to compel them to take jurisdiction. Plainly the legislature was at fault in censuring the judges but acted within its plain rights in refusing to re-elect the judges for this or any other reason—but not justified in so doing.
In the case of the Ohio judges who refused to enforce an act of the legislature which was in derogation of the right of trial by jury guaranteed by the Ohio constitution, the judges were in the right and the legislative attempt at impeachment for rendering such decision was wrongmen stepping beyond the legislative function of government and attempting to dictate to the judiciary (an independent and co-ordinate branch of the government), in what manner they should perform the functions of the high trust reposed in them. This was another manifestation of the public hysteria in the New York case and the Rhode Island case. When you consider the character, or want of character, of the average legislators, and the motives which control their acts, these three occurrences, and the Kentucky case following cannot be regarded as the deliberate acts of cool-headed and intelligent men uninfluenced by an outburst of public hysteria, and are valueless in this connection for any purpose.
The Kentucky case is of a class with the last three discussed, with these important differences: (1) the executive department joined with the legislative department in attempting to do an unconstitutional act; (2) they attempted to perform an act of removal in a way not provided for by the constitution and laws of the State; and (3) attempted by statute to abolish a court established by the constitution and to erect in its place a court not provided for by the constitution. Not one of their acts can be tolerated in any State with an established form of government-a simple illustration of the tyranny of ignorance and spleen.
The Massachusetts case, although the result of an outburst of public indignation taking on a form of hysteria, is on a somewhat different footing, occurring as it did at the height of the excitement in one of the history-making epochs+3 of our nation. The sentiment in the north was at fever heat and the current was beginning to turn against the fugitive-slave law and in favor of common humanity ;44 so-called personal liberty laws of a very stringent character were passed in many, if not in most of the States north of the Mason and Dixon line, in a determined effort to effectually block the operation of the fugitive-slave law, and which came so near nullifying the federal constitution that they showed, as nothing else could have done, the extent to which sectional feeling had progressed, and that the fugitive-slave law could be executed over the extreme and strenuous opposition of the people of the North, only.45 This was the period of righting a great wrong of centuries standing. Just at this time indignation at the signing by the President of the Kansas-Nebraska bill, and at the action of the United States authorities in Boston in the Burns case,46 added fuel to the flame of righteous indignation. Judge Loring may not have participated in the high-handed proceedings of the Federal authorities, but the proof introduced before him was so clumsily presented and so technically defective, that he was abundantly justified in setting Burns at liberty, if he had chosen to do so.47 Aside from the matter of Judge Loring's proper or improper action in the Burns case, it must be admitted that he did wrong in holding at one and the same time, under such a state of public feeling, the position of United States commissioner and Judge of Probate ;48 and it cannot properly be said that the legislature, in acting favorably upon the petition sent them in March, 1855, demanding the removal of the Judge of Probate from office, exceeded their power in “divorcing” the two offices from one and the same person. The public indignation was wrought up to such a pitch orer the details of the Burns case that the people relentlessly hunted down and procured the dismissal from office of every person interested in or in any way connected with the restoration to slavery of the man Burns.49
44 Life of Seward, Vol. II, p. 230.
43 See Vol. 18 The American Na tion: A History, pp. 263-285.
45 18 The American Nation: A History, pp. 283-285; VII Wiley's The United States, p. 330, et seq.
46 The proceedings in the Anthony Burns Case, an escaped slave, tried in Boston, in May, 1854, were un questionably highhanded on the part of the federal authorities, who were determined to win at any cost, and are said to have expended $40,
000 in the case. 1 Rhodes' History of the United States, p. 504, et seq.
47 Id., p. 504; VII Wiley's The United States, p. 332 and authorities there cited; Wilson's Rise and Fall of the Slave Power, pp. 435, 436.
481 C. F. Adams' Life of R. H. Dana, p. 343.
The arrest of the State judges for refusal to enforce the XIVth amendment to the Federal constitution occurred in that unsettled period following the rebellion, when the South was filled with and oppressed by blatant and unprincipled carpet-baggers; when the bitterness of the great struggle thralled North and South alike; at a time when the XIVth amendment had not been passed upon and construed and its full scope and import fixed and determined. Those judges who refused to dismiss, as under the magic ægis of the XIVth amendment, cases against negroes who were charged with the violation of state laws, such as carrying concealed weapons, illicit traffic in spirituous liquors, miscegenation and the like, acted in a very proper manner, and any interference by Federal authorities was an outrage; those judges who denied to negroes the full rights secured by the amendment, such as their civil rights, the right to take an oath and give testimony in a cause in a court of justice, acted wrongly and richly merited due punishment in a proper proceeding for that purpose. It is the high function of a judge to execute valid laws and constitutional provisions faithfully and impartially; if his conscientious scruples, or his blind partisan prejudices, will not permit him to do this—he should at once resign, or else be summarily removed.
JAMES M. KERR. Los ANGELES, CAL.
49 1 Rhodes' Hist. U. S., p. 505.
THE LAWYER FRIENDS OF CHARLES LAMB.
No other figure in English literature is so closely associated with law and lawyers as Charles Lamb. He was born in the stronghold of English lawyers—the Temple. The Temple Register contains the following entry of that fact: “Charles Lamb, born 10th February, 1775, baptised 10th March, following by Rev. Mr. Jeffs." Lamb's father was a lawyer's clerk. The boy's early recollections were all of lawyers and their courts. The companions of his maturer years included many lawyers, Montagu, Baron Field, Procter, Hone and Martin Burney, among others. Moreover, the best contemporary view of Lamb and his circle is found in the diary of another lawyer friend, Henry Crabb Robinson. And, finally, it was Lamb's fortune to have for his literary executor and biographer a lawyer of first-rate ability, Thomas Noon Talfourd. In fact, the men of law seem to have taken the fact that fortune fixed Lamb's birthplace in their sanctuary as a good omen and claimed him for their own.
In the Elia essay on the Old Benchers of the Inner Temple, Lamb himself says, “I was born and passed the first seven years of my life in the Temple.” Association with the Temple, however, did not end there. In 1782 Lamb entered Christ's Hospital, where he became a Blue-coat boy and a schoolmate of Coleridge. But the Temple, nearby, was still the paternal home, and there Lamb spent his frequent vacations and holidays. In 1791, on the recommendation of Samuel Salt, a lawyer of the Temple, he became a clerk in the South Sea House. A year later he was called home by the death of Salt, who was his father's employer, and soon thereafter, probably in 1793, the Lambs removed from the Temple. Eight years later, Charles and his sister, Mary, returned to the Temple for a stay of six