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In England, the division of legal employments limits the professional attainments of their lawyers and judges to a narrower sphere. One man devotes himself to equity law and one to common law, and neither intrudes upon the province of the other. Take the two brothers, Lord Stowell and Lord Eldon, for instance; the former was confined to ecclesiastical and admiralty law, and the latter to equity law. But the jurisdiction of the courts of the United States compelled Judge Story to range over a far wider region of legal investigation than any English judge. He had to hear and determine questions in equity law, in commercial law, in admiralty law, in criminal law, in constitutional law, in the law of copyright, and patent law. In all these departments his learning was accurate, ready and profound. He was at home, also, in the technical and recondite learning of real property. He had made himself master of the uncouth lore of "Coke'upon Littleton." With every department of equity law he was familiar-with the obsolete science of special pleading he was perfectly acquainted, and his opinions on constitutional law have in their careful analysis, luminous exposition, and vigorous grasp, but few rivals, and no superiors, unless it be the immortal judgments of Marshall. In knowledge of admiralty law, alike of its origin, history, and practical application, there is no one but Lord Stowell to rival him; and in learning, at least, the finished opinions of this great lawyer and accomplished scholar are not superior to those of Story.

To the important department of patent law. as administered and understood in America, Judge Story's contributions were more abundant and weighty than those of any other judge, or perhaps those of all the judges on the bench during his time. The system of patent law was wanting in symmetry and proportions. The courts of America at that time had contributed almost nothing to the science. It was a department of the law which he took particular pleasure in studying and administering, where his quickness of apprehension and discriminating faculty found a congenial sphere.

Upon the kindred subject of copyright, several important questions came before him during his judicial life; and his

opinions on them have the same merits of liberal interpretation and equitable construction as mark his judgments in patent

cases.

To understand Judge Story's merits as a lawyer and a jurist, he must be studied in his opinions, as contained in the reports of Gallison, Mason, Sumner and Story, exclusively devoted to his own circuit, as well as those found in the volumes of Cranch, Wheaton and Peters, of the U. S. Supreme Court Reports. His text books, admirable as they are-affluent in learning, luminous in exposition, and abundant in illustration -can hardly claim the same comparative rank as his recorded opinions. No man in America has done more to determine the law; and there is no one whose conclusions have been accepted with more general assent by the profession.

Some of his conclusions, however, though they were the law in his time, must be looked upon, especially in these Western States, only as connecting links between the common law and that more complete modification of it which is necessary to adapt it to our social and political condition.

As a nisi prius judge, presiding over jury trials, Judge Story was remarkable for the quickness of his perceptions and the correctness of his decisions, and for the uniform courtesy with which he treated all who appeared before him. He never indulged in sneers or sarcasm, and did not allow himself those judicial sallies, which, though they may make the by-standers smile, rarely fail to disconcert a sensitive advocate, and when too frequent, detract from the dignity of the bench.

He was sometimes accused of indicating, in his charges to the jury, a little too distinctly on which side he thought their verdict ought to be. A similar criticism has been made of the charges of some of the most eminent jurists of this State. The fault is a very natural one. The abler the judge and the clearer his views of the law, the more danger of his falling into it. As the jury, being accustomed to dealing with facts, are apt to consider more closely the facts, so the judge, being more accustomed to consider questions of law, is apt to give to them his closest attention, and, anxious that the verdict should be in accordance with the law when applied to the facts as he views

them, he sometimes does not leave to the jury sufficient latitude in determining the facts themselves. Though he may base his charge upon hypothetical conclusions of fact, in such a way that the charge is legally unobjectionable, he couches it in such language as to foreshadow his actual opinion as to what the verdict should be.

Whether we view Judge Story in his private and social life -as a lecturer-as a writer-as a lawyer-as a jurist-as a judge upon the bench, in all these respects he was great; and while some have been his equals and superiors in one or another of these departments, yet when all are taken and viewed together, it is safe to give him pre-eminence in those respects, among the men whom our country has produced.

SOURCE AND EXTENT OF LEGISLATIVE POWER.

The extent of legislative power depends upon its source. That the Legislature derives its power from the people, all admit; but there is not entire uniformity in the modes of thought as to the manner in which the Legislature comes into possession of the power. Some lawyers and even some jurists are in the habit of looking upon the State Constitution as the medium through which the power is transmitted from the people to the legislative bodies, and which is, therefore, to determine its

extent.

A correct solution of this question must depend upon three others: the relation between the people of a State and a Constitutional Convention;-the relation between such Convention and the Legislature, and the relation between the Legislature and the people. Let us examine them in their order.

I. The relation between the people and the Convention. A Constitutional Convention having been called, under an established form of government, nothing is more absurd than the doctrine that as soon as it has assembled, the government is resolved into its original elements, and the members of the Convention become clothed with complete political power for all purposes. It is somewhat surprising that a doctrine sodangerous and so revolutionary should have obtained any foothold among, an intelligent and patriotic people.

The Convention is a mere agency of the established government. It is chosen and assembled for a definite purpose, and clothed with definite powers. It is not a legislative body. It

has no legislative powers beyond what are absolutely necessary for the accomplishment of its special work, which is, either a general revision of the Constitution, or the considering and maturing of certain special changes in the fundamental law.

The relation is that of principal and agent. The Convention is the special political agent of the people. After its work of general revision or of maturing special amendments has been done, it should be submitted to the principal, the people, for approval; and such is now the universal practice in this country.

The mere statement of this relation is sufficient to show that it is not competent for the Constitutional Convention to confer any political rights upon the people. To attempt to do that would be for the agent to undertake to clothe his principal with authority. "A Constitution" says Dwarris, "grants no right to the people, but is the creature of their power, the instrument of their convenience.”—(Dwarris on Statutes, p. 347.)

But while an agent cannot confer power upon his principal, he can provide for establishing more firmly the power already possessed, and guard against its overthrow. And so, while a Convention cannot clothe the people with political rights, it can provide safeguards for the exercise of those they already have.

As an illustration, take the question of the suffrage. The people do not acquire their right of suffrage from the Constitution. That this is the case in reference to the Federal Constitution, was expressly decided by the Supreme Court of the United States in Minor v. Happersett. It is equally true of a State Constitution. If any one is disposed for a moment to think otherwise, let him ask himself whether, in voting for delegates to a Constitutional Convention, he intends to clothe those delegates with the power of saying in their discretion, whether he shall or shall not have the right to vote again. Does he intend to surrender his right of suffrage into the hands. of the Convention? Before delegates were sent to the Convention he had the right to the suffrage-that right he retains during its deliberations, and after it adjourns the right is exer

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