account of his juridical opinions. His eloquence, his philanthropy-' broad and general as the casing air,'-his great attainments in the study of morals, and his various literary productions, we have not considered; neither have we the history of his life. These are themes upon which we should be pleased to dwell, if they came within the scope of our Journal. And yet before we close this article, we feel disposed, in the spirit of the ac etiam practice of the English courts, to avail ourselves of the cognizance we have obtained over Sir James, through his legal productions, to institute for a moment, a comparison, in a literary point of view, between him and two of the great British historians, Hume and Gibbon,— or rather to make extracts from their different works relating to the same event, which will furnish the reader with the means of comparing them. The capture of Jerusalem by the Crusaders, and the blended devotion and ferocity of the conquerors on this consummation of their armed pilgrimage, are described and considered by each of these historians in passages as remarkable as any in their works. The followlowing is the graceful sketch of Hume :

'After a siege of five weeks, they took Jerusalem by assault; and impelled by a mixture of military and religious rage, they put the numerous garrison and inhabitants to the sword without distinction. Neither arms defended the valiant, nor submission the timorous: no age or sex was spared: infants on the breast were pierced by the same blow with their mothers, who implored for mercy even a multitude, to the number of ten thousand persons, who had surrendered themselves prisoners, and were promised quarter, were butchered in cool blood by those ferocious conquerers. The streets of Jerusalem were covered with dead bodies and the triumphant warriors, after every enemy was subdued and slaughtered, immediately turned themselves,

:

1 In that beautiful piece of biography, the Life of Sir Thomas More, by Sir James Mackintosh, the reader will find a very interesting sketch of the origin and progress of the Jurisdiction of Chancery. The length to which the present article has already extended, prevents our extracting it in the text. In discussing the nature of Courts of Equity, in a former number, we took occasion to refer to the views of Sir James. (See Am. Jurist, vol. x. p. 231.)

with the sentiments of humiliation and contrition, towards the holy sepulchre. They threw aside their arms, still streaming with blood they advanced with reclined bodies, and naked feet and heads, to that sacred monument; they sung anthems to their Saviour, who had there purchased their salvation by his death and agony and their devotion, enlivened by the presence of the place where he had suffered, so overcame their fury, that they dissolved in tears, and bore the appearance of every soft and tender sentiment. So inconsistent is human nature with itself! and so easily does the most effeminate superstition ally, both with the most heroic courage and with the fiercest barbarity!' vol. i. 231, 232.

The following picture of the same scene, glowing with life, in which the characters seem almost to move on the canvass, is from the pen of Gibbon.

Raymond's tower was reduced to ashes by the fire of the besieged, but his colleague was more vigilant and successful; the enemies were driven by his archers from the rampart; the drawbridge was let down; and on a Friday, at three in the afternoon, the day and hour of the passion, Godfrey of Bouillon stood victorious on the walls of Jerusalem. His example was followed on every side by the emulation of valor; and about four hundred and sixty years after the conquest of Omar, the holy city was rescued from the Mahometan yoke. In the pillage of public and private wealth, the adventurers had agreed to respect the exclusive property of the first occupant; and the spoils of the great mosque, seventy lamps and massy vases of gold and silver, rewarded the diligence, and displayed the generosity, of Tancred. A bloody sacrifice was offered by his mistaken votaries, to the God of the Christians: resistance might provoke, but neither age nor sex could mollify, their implacable rage: they indulged themselves three days in a promiscuous massacre;' and the infection of the dead bodies produced an epidemic disAfter seventy thousand Moslems had been put to the sword, and the harmless Jews had been burnt in their synagogue,

ease.

'Besides the Latins, who are not ashamed of the massacre, see Elmacin Hist. Saracen. p. 363,) Abulpharagius (Dynast. p. 243,) and M. de Guigne (tom. ii, p. ii, p. 99,) from Aboulmahasen.'

they could still reserve a multitude of captives, whom interest or lassitude persuaded them to spare. Of these savage heroes of the cross, Tancred alone betrayed some sentiments of compassion; yet we may praise the more selfish lenity of Raymond, who granted a capitulation and safe conduct to the garrison of the citadel. The holy sepulchre was now free; and the bloody victors prepared to accomplish their vow. Bareheaded and barefoot, with contrite hearts, and in an humble posture, they ascended the hill of Calvary, amidst the loud anthems of the clergy; kissed the stone which had covered the Saviour of the world; and bedewed with tears of joy and penitence the monument of their redemption. This union of the fiercest and most tender passions has been variously considered by two philosophers; by the one, as easy and natural; by the other, as absurd and incredible. Perhaps it is too rigorously applied to the same persons and the same hour: the example of the virtuous Godfrey awakened the piety of his companions; while they cleansed their bodies, they purified their minds; nor shall I believe that the most ardent in slaughter and rapine, were the foremost in the procession to the holy sepulchre.'

The description and reflections of Sir James Mackintosh are as follow:

In spite of their misfortunes, Bohemond established himself at Antioch in 1097; and on the 14th day of July, 1099, after a siege of two months, the ancient and holy city of Jerusalem was taken by assault, with a prodigious slaughter of the garrison. Ten thousand were slain on the site of the temple of Solomon ; more were thrown from the tops of the houses; many were put to death after resistance had ceased. Terrible as were these excesses, they arose from the boiling passions of an undisciplined multitude, and therefore bore no likeness to the license granted

1 'The old tower Psephina, in the middle ages Neblosa, was named Castellum Pisanum, from the patriarch Daimbert. It is still the citadel, the residence of the Turkish Aga, and commands a prospect of the Dead Sea, Judea, and Arabia (D'Anville, p. 19-23.) It was likewise called the tower of David, πυργος πομμεγεθεςατος.

* Hume, in his History of England, vol. i, p. 311, 312, octavo edition.'

3 Voltaire, in his Essai sur l'Histoire Generale, tom. ii, c. 54, p. 345, 346.' 12

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Juridical Writings of Sir J. Mackintosh. [July,

by a civilized commander to obedient soldiers, when a city is taken by storm. These passions, composed by the union of all that is kind with all that is fierce, of the basest with the grandest elements of our nature, produced a corresponding but a prodi gious variety of deeds. It is hard for a writer or a reader more separated by opinions, by manners, by situation, than by an interval of eight centuries from the victorious crusaders, to form a faint conception of their state of frenzy, when, sore with wounds, heated by bloody conflicts, and flushed with success, they came to see and handle the ruins of the temple, the holy sepulchre, and all the scenes of sacred story, dear and hallowed in their eyes from infancy; and at the same moment beheld at their mercy the men who had defiled these holy places and spoiled those innocent pilgrims, whose offence was that of worshipping God where he most abundantly had poured out the treasures of his goodness. The gentleness and humility of a religion of forgiveness had on their distempered, yet not, perhaps, depraved hearts, more than the power of the loudest cry of vengeance for long indignities and outrages. What wonder, then, if maddened by confused emotions, in which, perhaps, rising compunction began to swell, they rushed reeking from slaughter to raise their bloody hands in prayer, and to pour forth tears of contrition and affection, prostrate before the shrine of their God! The power of the feelings excited by those places which call up the remembrance of revered men, and their noblest actions and sufferings, never could be greater than it was to the deliverers of Jerusalem; and the subtle links which combined good and bad passions could hardly ever have been stronger.'

We hardly know which the most to admire, the graceful sketch of Hume, the stirring picture of Gibbon, or the unvarnished account of the capture, and the philosophical analysis fo the feelings consequent thereon, by Sir James. The high tone of philosophy, and the superior correctness of thought, however, which mark the latter, do not, perhaps, fully compensate for the inferiority of the style in which they are expressed. The rough and heavy step of Sir James Mackintosh compares but ill with the smooth and pleasant pace of Hume, or the imposing movement of Gibbon.

C. S.

DIGEST OF RECENT DECISIONS.

Principal cases in

12 PICKERING'S REPORTS in the Supreme Court of Massachusetts. 2 BAILEY'S REPORTS in the Court of Appeals of South Carolina. 5 GILL & JOHNSON'S REPORTS in the Court of Appeals of Maryland.

1 WATTS' REPORTS in the Supreme Court of Pensylvania.

ABATEMENT.

1. (Nonjoinder.) Where the plaintiff declares in the same action, upon a several demand against the defendant alone and upon a joint demand against the defendant and another, he may recover upon both demands if the defendant does not plead in abatement the nonjoinder of the other party liable on the joint demand. Holmes v Marden, 12 Pickering, 169.

2. (By marriage.) A feme plaintiff marrying pendente lite may, under the act of 1712, appoint an attorney to prosecute the action in her own name; and the action will not abate, if such appointment be made before coverture pleaded: but the proceedings must be carried on, and judgment signed, in the name in which the action was commenced. Guphill v. Is ell, 2 Bailey, 349.

3. (Former suit.) To sustain a plea in abatement of a former suit pending for the same cause, the parties to the record must be the same. Plea to an action at Law, of former suit pending in Equity, not allowed where complainant in the bill was a different person from the plaintiff in the action, and the latter was a defendant to the bill; although it was admitted, that the action at law was for the benefit of complainant in the bill. Davis v. Hunt, 1 Bailey, 412. 4. (Same.) Where an appeal from an order of nonsuit has been dismissed, or abandoned, the order of nonsuit, and not the dismissal of the appeal, is to be regarded as the legal termination of the suit: and the pendency of the appeal cannot be pleaded in abatement to