which said Madonna Castiza, lying and yet being in the occupation of the said captain, to have and to hold, use, and to be acquitted of and from all former bargains, former sales, gifts, grants, surrenders, re-entries; and furthermore, I, the said, of and for the consideration of five hundred crowns to set me aboard, before these presents, do utterly disclaim forever any estate, title, right, interest, demand, or possession of, in, or to the said Madonna Castiza, my late virtuous and unfortunate wife, as also neither to touch, attempt, molest, or incumber any part or parts whatsoever, either to be named or not to be named, either hidden or unhidden, either those that boldly look abroad, or those that dare not shew their faces," etc.

BLACKSTONE,

who had a great passion and genius for literature, gave up every thing for the law; but his legal acquirements and talents, although large, were not distinguished enough to have given him immortality, unless they had been joined with that elegant style which makes his Commentaries so delightful. The following is his melodious and playful "Farewell to the Muse," written in 1744:

"As by some tyrant's stern command
A wretch forsakes his native land,
In foreign climes condemned to roam,
An endless exile from his home;
Pensive he treads the destin'd way,
And dreads to go, nor dares to stay;
Till on some neighb'ring mountain's brow
He stops, and turns his eye below;
There, melting at the well-known view

Drops a last tear, and bids adieu;

So I, thus doom'd from thee to part,
Gay queen of Fancy and of Art,

Reluctant move, with doubtful mind,
Oft stop, and often look behind.

"Companion of my tender age.
Serenely gay, and sweetly sage,

How blithesome were we wont to rove.
By verdant hill or shady grove,

Where fervent bees, with humming voice,
Around the honey'd oak rejoice,
And aged elms with aweful bend
In long cathedral walks extend!
Lulled by the lapse of gliding floods,
Cheer'd by the warbling of the woods,

How blest my days, my thoughts how free,
In sweet society with thee!

Then all was joyous, all was young,
And years unheeded roll along:
But now the pleasing dream is o'er,

These scenes must charm me now no more:
Lost to the field, and torn from you-
Farewell!-a long, a last adieu.

"Me wrangling courts and stubborn Law
To smoak, and crowds, and cities draw;
There selfish Faction rules the day,

And Pride and Av'rice throng the way;
Diseases taint the murky air,
And midnight conflagrations glare;
Loose Revelry and Riot bold

In frighted street their orgies hold;
Or when in silence all is drown'd,

Fell murder walks her lonely round;
No room for Peace, no more for yon,
Adieu, celestial nymph, adieu!

"O let me pierce the secret shade
Where dwells the venerable maid!
There humbly mark, with rev'rent awe,
The guardian of Britannia's Law,
Unfold with joy her sacred page,
(Th' united boast of many an age,
Where mix'd, yet uniform, appears
The wisdom of a thousand years.)
In that pure spring the bottom view,
Clear, deep, and regularly true,
And other doctrines thence imbibe
Than lurk within the sordid scribe;
Observe how parts with parts unite
In one harmonious rule of right;
See countless wheels distinctly tend
By various laws to one great end;
While mighty Alfred's piercing oul
Pervades and regulates the whole.

"Then welcome business, welcome strife,
Welcome the cares, the thorns of life
The visage wan, the pore-blind sight,
The toil by day, the lamp at night,
The tedious forms, the solemn prate,
The pert dispute, the dull debate,
The drowsy bench, the babbling Hall,
For thee, fair Justice, welcome all!
"Thus, though my noon of life be past,
Yet let my setting sun, at last
Find out the still, the rural cell,
Where sage Retirement loves to dwell!
There let ine taste the home-felt bliss
Of innocence and inward peace;
Untainted by the guilty bribe;
Uncurs'd amid the harpy tribe;
No orphan's cry to wound my ear;
My honour and my conscience clear;
Thus may I calmly meet my end,
Thus to my grave in peace descend."
The same agreeable poet wrote the
Prayer:"

"Lawyer's

"Ordain'd to tread the thorny ground,
Where very few, I fear, are sound;
Mine be the conscience void of blame;
The upright heart; the spotless name;
The tribute of the widow's pray'r;
The righted orphan's grateful tear!
To Virtue and her friends a friend,
Still may my voice the weak defend!
Ne'er may my prostituted tongue
Protect th' oppressor in his wrong;
Nor wrest the spirit of the laws
To sanctify the villain's cause!
Let others, with unsparing hand,
Scatter their poison through the land
Enflame dissention, kindle strife,
And strew with ills the path of life;
On such her gifts let Fortune shower,
Add wealth to wealth, and power to power;
On me, may favouring Heaven bestow
That peace which good men only know.
The joy of joys by few possess'd,
The eternal sunshine of the breast!
Power, fame and riches I resign-
The praise of honesty be mine;
That friends may weep, the worthy sigh,
And poor men bless me when I die!"

JOHN C. SPENCER.*

III.

Among the early friends of Mr. Spencer, at Canandaigua, was Gen. Peter B. Porter, long and favorably known in the history of the state, as a man of high character and unsullied honor, who quietly, and without parade or ostentation, rendered himself of much importance in public affairs-whose influence, like the powers in the natural world, was mild and noiseless, but penetrating and enduring-an accurate observer of men, yet simple and natural in his manners, uniting habits of economy with the most disinterested and liberal charities. A pioneer of western New York, his energetic and enterprising character materially aided in the development of the resources of that beautiful country.

During the autumn of 1809, Gen. Porter completed From advanced sheets of "Bench and Bar."

a very commodious residence in the village, which he leased to Mr. Spencer, and in which he first commenced the duties and responsibilities of housekeeping. In after years he frequently described, in lively language, the first dinner of which he partook in this his " own hired house." "It was eaten off from a common kitchen table. I was seated on a cheap oldfashioned chair, and Mrs. Spencer occupied a common wooden stool. But every thing on the table, though simple, was nicely cooked, and we enjoyed our meal with a relish rarely equaled at the more sumptuous repasts of our prosperous days." Thus, with frugality, economy and self-reliance, the young couple entered life's great contest, and thus they became successful in the struggle.

Within six months after taking possession of this house, as a tenant, Mr. Spencer became the purchaser of it, and for twenty-six years and upward, it was his home.

In 1809 Ontario county contained within its limits all that territory now included in the counties of Yates and Wayne, together with all that part of Monroe and Livingston lying east of the Genesee river. From a very early period its bar has been distinguished for the eloquence and learning of its members. A long line of brilliant names adorn its history, many of whom were rendered, by nature and art, almost perfect legal orators, whose eloquence "led criticism itself captive," and who could touch, "with a strong and certain hand, any chord, from uproarious merriment to the deepest pathos, or the most terrible invective."

That Mr. Spencer was able, while yet in his youth, to attain the highest professional distinction, opposed by such competitors, sufficiently attests his ability.

Nothing, however, is so favorable to the development of real ability, nothing so essentially elicits the intellectual strength of young lawyers, as constant intercourse and collision with advocates of superior legal attainments and skill. The contest may at first be unequal, may often result in discomfiture and mortification, but with every failure strength and confidence will be gained, close study and research resorted to, and at length the nicely graduated scale of professional success easily ascended.

When the great Scottish lawyer, Cockburn, was called to the bar-young, obscure and diffident — he was compelled to struggle with those giants of the Scottish bar, Clerk, Cranstoun, Moncreiff and Fullerton. Though their inferior in age, in legal knowledge and juridical power, yet, bracing himself for the contest, he boldly entered the lists against them. Regarding it no disgrace to be conquered by such antagonists, he continued the struggle until he was able to maintain his ground, and at length to successfully contend with them. His success shed such luster upon his name that he soon reached the bench, where, as has been well said of him, "his reputation and efficiency were unequaled."

When Mr. Spencer first appeared at the Ontario bar, he was the only democratic or anti-federal lawyer who appeared there. Unappalled by the influence, numbers, and strength of the opposition, and scorning the weak advantage of belonging to "the popular side," he boldly declared his principles, then ably and man

fully maintained them, and thus he soon became the standard-bearer of his party in western New York. "Much of the litigation of that day was occasioned by party collisions, and he therefore encountered, from the beginning, a combined opposition, which taxed to the uttermost his 'iron will,' rendering it necessary for him to enter court perfectly prepared at all points; and he found it necessary to be constantly on his guard against the attacks of his political, as well as his professional opponents, to whom he was especially distant and repulsive in his manners." This state of things, however, polished and sharpened the weapons he was compelled to wield; it taught him to parry as well as to thrust, and he rapidly advanced in his profession.

Mr. Spencer always loved solitary study; he never delighted in what is called fashionable life. A mind given to research will see in that society-where persons have no other occupation than fashionable amusement -- acuteness of intellect, refinement of manners, elegance and good taste in a certain kind of conversation; but he will also see all profundity of thought, all serious reflections discarded, and hence the glossy volubility of a fop in such circles is preferred to the recondite conversation of the really intelligent and learned.

Accustomed from his youth to the detail of politics, the lawyer was soon blended with the politician. Political dissensions ran high, and were characterized by great bitterness; party feuds were not then as soon forgotten as they are at the present. The easy, gliding scale of political conscience, the temporizing, trimming, bartering policy of modern partisans were then unknown; a rigid fealty to party; an honest, though bitter opposition; an implacable, unswerving warfare, guided the politician of that day, often engendering feelings of hostility which tinged the amenities of social life for many years.

When the questions and events which led to the war of 1812 began to agitate the public mind, Mr. Spencer, stimulated by an inherent patriotism, joined his fortunes to the party which favored resistance to British aggression, and when war was finally declared, he became the firm supporter of Madison and Tompkins. There were few men at that time who exerted a wider or more direct influence than John C. Spencer. His vigorous mind, his ready and powerful pen, were devoted to the discussion of the great questions which divided the public mind.

One of the pamphlets published by him, entitled "The probable Results of a War with England,” attracted much interest throughout the nation; and in Great Britain it was republished in the papers opposed to the ministry, as an unanswerable argument against the policy of the American war. "Who does not see," said one of the leading opposition journals of the day, "the fatal truths contained in Mr. Spencer's article on the results of this war? If there are those so perverse that they cannot see, its truths will, in time, be brought home to the government, when it is, perhaps, too late. There is not an individual, who has attended at all to the dispute with the United States, who does not see that it has been embittered from the first, and wantonly urged on by those who, for the sake of their own aggrandizement, are willing to plunge

their own country in all the evils portrayed by the American writer."

It was one of the merits of Mr. Spencer that he entered thoroughly into his subject, leaving no part unexplained-fearing less the imputation of undue minuteness or superfluity than the more serious charge of passing superficially over the topics of discussion.

Sometimes in his anonymous writings there was the crisp denunciation and terse sarcasm of Junius; the close and frigid philosophy of Calhoun; and then the polished rebuke of Addison; and thus the public were often left in doubt as to the real paternity of his many productions.

After the declaration of war Mr. Spencer continued to wield his pen and exert his influence in urging the people to a vigorous support of the government; but, at length, he too was attracted to the field. In the autumn of 1813 he accepted the position of judgeadvocate on the staff of Major-General McClure, and with that officer moved to the seat of war on the northern frontier. The staff of Gen. McClure was composed of young men who subsequently attained much eminence, professionally and politically, in the state. John C. Spencer was judge-advocate, as we have seen; William B. Rochester, afterward a circuit judge, and a politician, who in 1825 disputed with De Witt Clinton for the gubernatorial chair of the state, with such chances of success that he was defeated by a very small majority, was aid; Daniel Cruger, in after times a leading lawyer in western New York, speaker of the assembly, and representative in congress, was quartermaster; John F. Bacon, subsequently for many years clerk of the senate, was paymaster, and Dr. James Faulkner, afterward member of assembly, judge of Livingston county, and state senator, was surgeon. Dr. Faulkner is the only surviving member of Gen. McClure's military family, and is a resident of Dansville, N. Y.

After continuing in the service six months, Mr. Spencer was appointed United States assessor, and in accepting this office he was compelled to tender his resignation. Returning home, he entered upon the discharge of the new and responsible duties thus imposed upon him. The office of assessor was created under the act of Congress passed March, 1813, which provided for a direct tax to aid in the prosecution of the war. It was exceedingly odious to the opponents of Mr. Madison, and was anathematized by them as the first steps toward the establishment of a despotic government. It required great firmness and legal exactness to carry this law into effect, but it was fearlessly and accurately carried out by Mr. Spencer.

In February, 1815, he was appointed by Mr. Tompkins district attorney for the five western counties of the state. In making this appointment, the governor, while he in some measure rewarded a faithful and influential friend, recognized the great legal ability of that friend. It was, however, a position of great responsibility and labor. It compelled Mr. Spencer to attend the criminal courts of distant counties, and thus to perform long and tedious journeys on horse back, over roads which were but a slight improvement on the old Indian trail which then intersected the country. But he was adventurous, and at that

age when ambition has no bounds, and he entered upon the discharge of his duties with great alacrity. It is related that, soon after his appointment, while on his way to attend a term of the oyer and terminer at Batavia, night overtook him when within ten or twelve miles from that village, and he was compelled to remain all night at a hotel. During the evening, while seated by the fire which blazed on the large old-fashioned hearth, two travelers entered and asked for lodging during the night. Matters were soon arranged between them and the host, and they too found a place by the cheerful fire. In a few moments they fell into conversation, from which Mr. Spencer soon learned that they had been indicted for burning a building; were "out on bail," and now on their way to Batavia, where they were to be tried at the ensuing court.

They made no concealment of their peculiar situation, and continued to converse in a tone which was audible to all in the room. At length one of them,

whose name was Benson, remarked that a new district attorney had been appointed. "I can't tell what turn our case will take now; Wisner, the old one, was inclined to give us a chance for our lives. Going to be at court this week, sir?" he asked, turning abruptly to Mr. Spencer. "Yes," was the reply. "Are you acquainted pretty generally with lawyers about this country?" asked Ford, the companion of Benson. "I know some of them," said Spencer. "Do you know the name of this new district attorney?" asked Ford. "Yes; his name is Spencer." "What! not the Spencer that lives at Canandaigua, I hope?" said Benson, his eyes dilating with the interest he felt in the question. "Yes, sir; I think it is the same man." "Good God! is it possible? Why, I had rather fall into the hands of an Algerine than into his." "Why so? Will he do any thing more than his duty, do you think?" asked Spencer. "Do any thing more than his duty? Why, good gracious! from all the accounts I have heard of him, he is a regular Philistine, as sour as vinegar, but as smart as steel. He will go all lengths to send a fellow to state's prison, right or wrong, and then he'll go along with him to see that the key is safely turned on the poor fellow," said Ford. "Well, well, this is tough enough, tough enough, to be tried for arson with John C. Spencer against us. Come, Ford, let us go to bed, though I shan't sleep much; and when I do, I shall dream that this Spencer is after me in full chase," said Benson, as he was leaving the room.

During the afternoon of the next day, while Benson and Ford were seated in the court-room, Mr. Spencer came in and took a chair among the lawyers in the bar. "There," whispered Ford to his companion, "there is the man we talked with last night at the tavern, and he is a lawyer, you see; I thought he was, all the time, and I'll bet he is a good one, too." "So will I," said Benson; "and that tall, spare form and thin face shows that he has got a great, active mass of brains, and that his mind is too strong and active for his body. I wonder who he is." Just then Mr. Spencer arose to discuss some question in a civil matter in which he had been retained after his arrival at Batavia, and, as usual, he made an impression upon all in the room. "There, what did I tell you?" said

Benson to his companion, when the speaker had closed; "he is what you call able and strong, and I am going to have him help our lawyer defend us."

In a short time the business in which Mr. Spencer was engaged being disposed of, he left the bar for the purpose of going to his room below. Benson and his friend followed him into the hall; the former, touching Spencer on the shoulder, said, "We would like to talk with you a little; don't you remember us? we were at the hotel with you last night." "Yes, I remember; what do you wish to say to me?" asked Mr. Spencer. "Why, you know that we are indicted for burning a building, and, as our trial is soon to take place, we thought we would like to have you assist our lawyer in defending us," said Benson. "I do not think you want me to defend you." "Why not," asked one of them. "Because I think you do not like my name." "We don't know nor care what your name is; we like your appearance, and believe you are a dead match for that devilish Spencer that is against us," said Ford. "Well, we will see; my name is John C. Spencer." "Heavens and earth!" exclaimed Ford, recoiling from him in terror, while Benson remained perfectly speechless with fright. "You see, gentlemen, that my name is not exactly pleasing to you, and our business is doubtless at an end," said Mr. Spencer, preparing to leave them. "For heavens sake, Mr. Spencer," said Ford, "excuse us for our plain talk to you, and—and, don't—don't bear any harder upon us for it, for we-we are not guilty, we-" "Enough of this," said Spencer, interrupting him, "I shall do my duty, and nothing more; what you have said will make no difference whatever; one thing, however, I will promise not to do; I will not go with you to the state's prison, just to see that the key is safely turned upon you." With this remark be left them. The next morning their trial commenced, but such was the nature of the evidence that the district attorney himself was convinced that they were not guilty, and consented that a verdict to that effect might be entered, and they were fully discharged.

CURRENT TOPICS.

The jury system, like most other human institutions, has its draw-backs, and one of them is the tendency of jurors, in cases where they differ, to ignore the principle of law requiring unanimity in the verdict. We believe it is not unusual in actions for damages for juries to agree upon a verdict by compromise or lot. This practice is sometimes indulged in in criminal cases. An instance has recently occurred at the Norwich assizes in England. A person was on trial for bribery and corruption, and the Liverpool Daily Post says that the verdict of "not guilty" was obtained by the drawing of lots. When it was determined that there was a difference of opinion, one of the jurors produced a quantity of bread and cheese, and announced his determination to exhaust his supplies before he changed his opinion. A "scene" is said to have followed, which was finally brought to a close by an agreement to decide by lots. It is hardly necessary to say that a practice of this sort is entirely subversive of the fundamental principles of trial by jury, and ought to be carefully guarded against by the court.

The court of Alleghany county, Pennsylvania, has promulgated some new rules with regard to admissions to the bar which we shall be glad to see copied by the courts of this and the other states. These rules provide that the applicant should have served a regular clerkship and have studied under the direction of an attorney for three years, such clerkship to date from the time when the attorney with whom he is studying shall have registered with the prothonotary his name, age and residence. But no person is to be registered until he shall have undergone an examination on all the branches of a thorough English education and the elements of the Latin language by the board of examiners. Proper deductions from the time required are made for those having attended a law school. Notice of intention to apply for admission is to be published for four weeks in the Pittsburgh Legal Journal. To entitle an applicant to admission he must undergo an examination by a board of examiners on the principles and practice of law and equity and is to produce and file with the prothonotary a certificate signed by all the examiners who were present at the examination, that he is sufficiently qualified, etc., for admission. Persons admitted to practice in other courts of the state, or in the courts of other states, are required, in order to secure admission to appear before the board of examiners, and to produce a certificate signed by all the examiners present, of character and qualifications.

A movement toward the establishment of an organized system of legal education in England is beginning to assume practical form in the shape of an association or law university, of which it is understood that Sir Roundell Palmer will act as president. The professed objects of the association are stated to be: 1st. The establishment of a law university for the education of students intended for the profession of the law. 2d. The placing of the admission to both branches of the profession on the basis of a combined test of collegiate education and examination by a public board of examiners. This movement is indirectly the result of the report of the inns of court of inquiry commission, which was appointed in 1854 to investigate the facilities for legal education as afforded by the inns of court. That commission, which was composed of some of the most eminent jurists of England, reported in favor of uniting the inns in a university, the functions of which were to be to institute and regulate examinations, the passing of which should be requisite for the call to the bar; to confer degrees in law, and to provide lectures having reference to the course of study requisite for passing the examination and obtaining the degrees. This report was never passed upon, and was well-nigh forgotten, when in 1868 the law societies of solicitors throughout England took up the matter in an earnest manner, and appointed delegates to meet and draw up a plan for a university of law. This new scheme is based upon the plan of the commission of 1854, with the important addition that both branches of the legal profession are comprised; and it also contemplates that the proposed university shall embrace not only the inns of court and the members of the bench and

bar, but also the various incorporated or organized societies of solicitors. It is said that this new scheme bids fair to command the harmonious support of a large proportion of the legal profession in both branches.

If the testimony of the medical witnesses in the McFarland case is to be believed, we must coincide with the remark, slightly changed, of Lord Macaulay, that the population of this country consists of about forty millions- mostly insane. "Moral insanity," "homicidal tendency," "insane impulse;" "delusion," dementia," "mania," "melancholia," and "frenzy "-dance through their evidence in a manner that would have utterly confounded the M. D.s of Hale's time. If the science of medicine is to continue the "march of improvement" which has characterized it during the past fifty years, our descendants a half century hence will be relieved from the necessity of maintaining jails and prisons, for all crime will be shown by a cloud of medical experts to be the result of some one of the multitudinous forms of insanity. The present tendency of the medical profession is to the opinion, that all passion is a kind of insanity, and that no insane person ought to be punished. The danger of such views has been recently illustrated in several striking instances. We have never doubted the correctness of Lord Hale's rule of law, that some kinds of insanity furnish no excuse for crime. The law does not say that every one who knows right from wrong is free from mental disease, but it does say that when such a person does the wrong it is expedient to punish him, whether he has mental disease or not. This rule is an eminently practical one, and commands the approbation of a large majority of mankind. If human judges were to attempt to weigh accurately the amount of moral guilt involved in each offense, and to apportion the punishment accordingly, the primary object of punishment the prevention of crime - would be

lost sight of.

The mischief that may be done, and is done, by admitting the plea of "uncontrolable impulse," "insane impulse," "melancholia," and the like, is, that it is likely to prevent others really capable of controlling their malicious impulses from doing so; and, assuming that the object of punishment is prevention, and that abstract justice is unattainable and impracticable, we say that less harm is done by punishing a few persons whose impulses may really have been uncontrollable, than by admitting the plea as an excuse for crime. We do not advocate the punishment of men so far insane as not to know right from wrong; but in those cases where the insanity is the result of passion or impulse, and only evinced by the crime committed, we would have the full penalty of the law meted out.

Judge Emmons, of the United States circuit court at Cincinnati, has delivered an opinion sustaining the demurrer filed in behalf of the government to the action brought by distillers to restrain the collection of the tax on whisky, assessed in obedience to what is termed the fourth-hour rule.

A young man who had spent a little of his time and a great deal of his father's money in fitting himself for the bar, was asked, after his examination, how he got on. "Very well," said he. "I answered one question right." "Ah! indeed," said his father. "And, pray, what was that?" "They asked me what a qui tam action was, and I told them that I did not know," was the response of the youthful aspirant for legal honors.

In a breach of promise case, in Liverpool, the presiding judge delivered himself of two aphorisms worthy of preservation. The defendant's counsel, having argued that the lady had a lucky escape from one who had proved so inconstant, the judge remarked that "what the woman loses is the man as he ought to be." Afterward, when there was a debate as to the advisability of a marriage between a man of forty-nine and a girl of twenty, his lordship remarked that "a man is as old as he feels; a woman as old as she looks."

In one of those outbreaks which are regularly engendered in drinking saloons, a certain William Brown took occasion to polish off Mr. Luke Spinney, the proprietor of the establishment, with a heavy bottle, which he borrowed from Spinney's counter for the purpose. In Brown v. Spinney, the verdict, so to speak, was for the plaintiff, and the dispenser of cheap liquor received what is popularly known as an "awful punishment." Spinney came into court with a frontispiece battered and bruised in a style that would delight the heart of a prosecuting officer, and that approximated that picture of ruin required to be set forth in a common-law indictment for assault and battery. Brown hadn't much to say for himself. His plea