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, accordingly, 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, sovereign moral sense led him generally to see 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 belongs 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 is appointed to declare it, it must be confessed that, in ordinary cases, Chief Justice Durfee had not always his faculties under such ready control as would have enabled him at once to seize upon the small salient points in a question of fact; but, on the other hand, there was this advantage, even in such cases, that they

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 in political science, than an orderly presentation of the facts in the case; was rather 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

tower on mound and mountain; let them rise from the corners of our streets, and in our public squares, that childhood may sport its marbles at their basements, and lisp the names of the commemorated dead, as it lisps the letters of its alphabet."

The lighter graces of his mind, however, are more fully manifested in his unpublished lectures on the Indians, and in his minor poems, one of which, entitled Life's Voyage, is hardly less beautiful than the most suggestive allegories of Coleridge or of Bürger. We copy it, by permission :

LIFE'S VOYAGE.

There rose amid the boundless flood
A little island green;
And there a simple race abode,

Which knew no other scene

Save that a vague tradition ran,
That all the starry skies
Bore up a brighter race of man,
Robed in the rainbow's dyes.

A youth there was of ardent soul, Who viewed the azure hue, And saw the waves of ocean roll Against its circle blue.

He launched his skiff, with bold intent
To seek the nations bright,
And o'er the rolling waters went

For many a day and night.

His lusty arms did stoutly strain,

Nor soon their vigor spent ; All hope was he right soon to gain, And climb the firmament,

Where glorious forms in garments bright,
Dipped in the rainbow's dyes,
And streets, star-paved, should lend their light
To his enraptured eyes.

And then might he his isle regain,

Fraught with a dazzling freight, And lead his kindred o'er the main, To this celestial state.

But whilst he plied the bended oar,
The island left his view;
But yet afar his bark before

The azure circle flew.

Yet still did flattering hope sustain

And give him vigor new; While still before him o'er the main Retired the circle blue.

difficulty, growing out both of the domestie and the foreign relations of the Plantations. In short, the practical working of this great prolific truth of the freedom of conscience is ably, though briefly, exhibited not only in the whole course of Rhode Island legislation, and in its influence in forming the distinctive features of the Rhode Island character, but also in its remoter effects on the legislation of the other American States, and on the establishment of the Federal Constitution.

Besides the main source of its interest, this Discourse derives also no little value from its very successful delineations of the character of the leading settlers of the Plantations. The picture introduced of the village of Providence, the principal theatre upon which these persons acted, is so good a specimen of the author's power of imaginative description, that we give place to it.

"Would that it were in my power, by a mesmeric wave of the hand, to bring Providence before you, as she then was. You would see the natural Mooshausic, freely rolling beneath his primeval shades, unobstructed by bridge, unfringed by wharf or made land, still laving his native marge-here expanding in the ample cove-there winding and glimmering round point and headland, and, joyous in his native freedom, passing onward, till lost in the bosom of the broad-spreading Narragansett. You would see, beneath the forest of branching oak and beach, interspersed with dark-arching cedars and tapering pines, infant Providence, in a village of scattered log huts. You would see each little hut overlooking its own natural lawn, by the side of fountain or stream, with its first rude inclosure of waving corn; you would see the staunch-limbed draught-horse grazing the forest glade; you would hear the tinking of the cow-bell in the thicket, and the bleating of flocks on the hill; you would see the plain, home-spun human inhabitants-not such as tailors and milliners make, but such as God made; real men and women, with the bloom of health on their cheeks, and its elasticity and vigor in every joint and limb. Somewhat of an Arcadian scene this-yet it is not, in reality, precisely what it seems." Historical Discourse, p. 13.

Of this little community, even then divided into two hostile parties, Roger Williams and William Harris were the chief leaders. To the former is very justly ascribed the possession of two intellectual traits, which gave a strongly marked out

line to his character-" originality of conception in design, and unyielding perseverance in execution." He represented the conservative element in the infant State; while the wrong-headed, but strongminded Harris, who contended that "whosoever conscientiously disbelieved the authority of human government, ought to be exempted from the operation of its laws," was the first Jacobin, and the head of the hopeful battalion of reformers in Providence. Graphic but brief descriptions are given, also, of the zealous John Clarke, the good Samaritan of Aquidneck; of William Coddington, staid and worthy, who "had in him a little too much of the future for Massachusetts, and a little too much of the past for Rhode Island;" and of Samuel Gorton, as profound as mystical, the clouds round about whom became, in certain aspects, transfigured even into a skirt of glory, as of one who looked on the face of God. Men like these, it was, who stamped their image indelibly on the Rhode Island character. Hence, that attachment to freedom of opinion, which has been the birthright of all their descendants, as well as that jealousy of the clerical order, which prevails even to this day among them. Hence, too, is it that, while none have displayed more gallantry of action than the Rhode Islanders, whether on our land or our lakes, they have, until recently, been behind the other New England States in their patronage of common schools, and the higher institutions of learning. The man of independent mind, not of cultivated tastes, has hitherto been their favorite exemplar. The man of mother wit-the advocate at the forum, who, not encumbered too much by other men's opinions, relied boldly on his own native resources, audax et semper paratus ; the divine, who drew in his inspiration direct from the breath of the Almighty, and could make his boast that he had never slept under the roof of a college; the landed proprietor, who administered justice among his neighbors without the formalities of the courts, whose downright sense uttered itself in contemptuous defiance of the laws of the King's English, who swore by his own right hand and changed not; these have been the popular idols of the Narragansett commonwealth. Common sense-for there has been this