commenting upon this act, remarks: "Whatever pretences there were for setting this court at first, 'tis certain it was made use of as a property of arbitrary power, to crush any whom the ruling minister and favorites had a mind to destroy." It violated, as he maintains, the English Constitution in three things: 1st, In proceeding without a jury; 2d, in examining men upon oath touching crimes by them supposed to be committed, whereas no man is bound to accuse himself; and, 3d, the judges proceeded by no known rule or law, but acted arbitrarily, according to their own pleasure.

This summary, it will be perceived, justifies every thing which has been said of the character of this court in the preceding pages; and, in view of its history, one can hardly forbear indulging a reflection upon the aims and functions of the common law, as compared with any other system known to modern civilization, and how unsafe it is for a people who have once enjoyed its safeguards and protection to exchange these for any other form of justice, however plausible it may appear, or however seemingly recommended by present expediency. The same men who, as judges of the common law, while surrounded by the checks and limitations which usage and tradition had gathered within the precincts of their courts, had conducted themselves in a manner to escape censure or odium, removed thence into the murky and corrupted air of the Star Chamber, were the first to violate the fundamental principles of the common law, and were ready to go the farthest in discarding its salutary and time-honored rules. Of all the systems and schemes devised by the wisdom of man for administering justice, there is none, take it all in all, which comes so near perfection as that of the common law, made up of two elements, — judges and jurors, — in a measure independent, and each with its proper function prescribed and understood. That, like all human institutions, it is true, is imperfect and defective, and sometimes not only fails to attain justice, but becomes an instrument of positive wrong. But these are the exceptions. The rule is in every respect in favor of reaching results as near the ends of justice as can reasonably be hoped for in the uncertainty of human testimony, and the difficulty there is in defining and limiting the rules of law. And when, in view of some verdict rendered through the passion or ignorance of a jury, we hear men declaiming against these as a part of our system for deter

mining questions of right in courts of justice, we would only point to them the danger to which suitors would be subjected from narrow, partial, or misguided views of men with like passions, who should undertake to pass upon the rights of others under the name of judges. Especially is this the case where judges are elective. We should, by confiding to these men, without the check of a juror's oath, the rights of the citizen, be going back a great step towards the mischiefs of a Star Chamber, where the law between man and man, and especially between the individual and the public, can hardly fail to be moulded and shaped to suit the will and passions of the power that creates the judges who declare it. No tyranny is more cruel, no injustice more intolerable, than that which is accomplished under the name of administering justice through the medium of a court of law. The lessons left us in the history of the Star Chamber should not be lost upon the world; and if this effort to revive the memory of this court, by borrowing from the records of the past, shall have served to throw light upon its true character in the mind of any one, the labor will not have been in vain.

NOTE.

EMORY WASHBURN.

Instead of breaking the page with citations of the authorities referred to, they are here collected, if any one has occasion to question or examine any of the statements contained in the text :—

2 Hallam, Mid. Ages, 172-177; 1 Hallam, Const. Hist. 50-54, 234, 448-457; 4 Coke, Inst. 60-62, 64-66; Carr's Eng. Liberties (5th ed. 1721), pp. 198, 199; English Stat. at Large; Hudson's Treat.; 2 Collect. Jurid. 8, 9, 63, 200, 201, 224, 225, 228; Barrington's Statutes, 394, 395; West's Symboleography (ed. 1622), 337; 4 Black. Com. 266, note; 1 id. 230, 231; Cowell's Interpreter, "Star Chamber; 1 Hargrave, State Trials, 418, 481; 7 id. 286; 6 Hume's Hist. Eng. 234-241.

LORD ABINGER.1

A MAN SO famous in his day as Lord Abinger was, and whose reputation is so great as his still is wherever English jurisprudence is administered, deserves to have his biography published, and any life of him was sure to be received cordially by the profession. To satisfy expectation, however, such a work required in its preparation professional knowledge and professional enthusiasm. Lord Abinger was not, like Lords Eldon, Lyndhurst, and Brougham, in England, and Mr. Webster in our own country, an active statesman. He was not, like Lord Mansfield or Chief Justice Marshall, a great judge, and the creator of a system of jurisprudence. Neither was he an eloquent orator. But as an advocate, as a verdict getter, and arguer of law questions in bank, he has seldom, if ever, been equalled, certainly never surpassed. For more than twenty years, and with such competitors as Garrow, Copley, Brougham, Pollock, and Wilde, he was the unquestioned head of the English bar; and, as Serjeant Talfourd has said of him, swayed the Court of King's Bench like a monarch; and, without figuring in any great historical cause, without high eloquence, and without delivering a speech that, apart from the reputation of his name, would now be remembered even by lawyers, he won fame far beyond the circle of his own profession, which still to a great extent survives, although forty years have elapsed since he left the bar, and thirty since his death.

Such a man must have had many remarkable intellectual and moral qualities, but we greatly doubt whether anybody but a lawyer could portray them; and, in his attempt so to do, we think Mr. Campbell Scarlett has failed from the lack of that technical knowledge and legal training essential to a just appre

1 A Memoir of the Right Honorable James [Scarlett], First Lord Abinger, Chief Baron of Her Majesty's Court of Exchequer, including a fragment of his Autobiography, and Selections from his Correspondence and Speeches. By the Hon. PETER CAMPBELL SCARLETT, C. B. London. 1877.

ciation and truthful presentation of his father's character. So entirely professional was Sir James Scarlett's greatness, that this want in his biographer, even when he is inspired with all the affection and possesses all the familiar acquaintance with him of a son, might result in his doing him injustice; and, interesting as this book really is, we fear it will rather injure than revive the father's reputation. Indeed, judging from the tone of the reviews and notices of it in the English periodicals, we think it has already done this. It certainly fails to give an adequate representation of those powers which his contemporaries universally recognized, and which family connection has probably prevented his son-in-law, Lord Campbell, from disparaging in some posthumous publication.1 Mr. Scarlett, in fact, has made the mistake that was made by the executors of Mr. Choate, when they intrusted the preparation of his biography to a gentleman who, no matter how accomplished he was in other respects, was unfitted for the task from his not being a lawyer. Had the materials, scanty as they may have been, for the lives of both the great English and the great American advocates, been placed in the hands of accomplished professional gentlemen, posterity would be better able to form a just conception of these two eminent men than it now is. Mr. Scarlett admits that he is not competent to write his father's professional life, but then he undertook a great responsibility in writing his life at all. Much of the volume before us is filled with matters of little interest outside of the family circle. Lord Abinger was not a successful politician, nor a very safe guide in political matters, and his political life and opinions occupy a space in the book disproportionate to their value. The most interesting part of the work is the fragment of autobiography which it contains, and which we sincerely wish was longer and fuller.

James Scarlett was a native of the Island of Jamaica, where his family, originally from Eastbourne in Sussex, had been settled for several generations. His father, Robert Scarlett, was a large landed proprietor and planter, and seems to have been a

1 It is an amusing fact that the only persons whom Lord Campbell, in his numerous "Lives," seems anxious to paint in all their greatness, and whose acts he represents in the most favorable light, are Mansfield and Erskine, both Scotchmen. To Lord Loughborough, another Scotchman, he is altogether too indulgent. His life of him is in striking contrast to his sneering biographies of Lord Kenyon and Tenterden.

man of affluence, and of position and influence in the colony. His mother was the daughter of a Colonel Philip Anglin, another proprietor in the Island of similar wealth and position. James, his parents' second son, was born on the 13th of December, 1769. The eldest son inherited the family estates, the third was a physician, and the youngest, Sir William Anglin Scarlett, like his distinguished brother, was educated for the bar, but returned to Jamaica to practise, and became eventually Chief Justice of the Island.1

66

Among my first recollections is that of reading the Psalter and the Bible to my mother. She had a very happy art of teaching her children to read when they were too young to retain in their memory any traces of the process she adopted. I acknowledge with gratitude the early lessons I received from her, inculcating a high tone of moral and religious feeling, which has never ceased to influence my habits and my conduct. It is but justice to her to state that, though surrounded by slaves, I was brought up with an abhorrence of the slave-trade and the system of slavery which is the necessary consequence of it. Be it known, notwithstanding the confident allegations of several journalists to the contrary, that I was never at any school.

"Both my parents were sensible of the corruption of morals incident to that unhappy state of society where slavery exists. They resolved to separate their children, as much as possible, from an intercourse either with slaves or with those who were in daily familiarity with slaves. My mother, in particular, was so careful to keep us from that contamination, that she never allowed us to associate with any person whose dialect was touched with the broken English of slaves; and, according to my recollection, ours was one of the very few families, if not the only one, in which the language and accent of the nursery was wholly uncorrupted."

He and his brother received their early education from private tutors, with such superintendence as their father, whose duties as a magistrate, and as colonel of a regiment of militia during the American war, took him much away from home, had time to exercise over their studies.

"Whenever he was at home, he found time to read himself, and to make me read to him, from his favorite authors. These were, chiefly, Pope, Addison, and Swift. Swift's prose, in particular, he delighted in, considering it as a model of simplicity, perspicuity, and force; and I owe

1 He died, while holding that office, in 1831.