the offence, and that no man is to be punished for the offence of another. If several join in a riot or trespass, assault, battery, or whatever it may be short of felony, they are principals, and all guilty of the same offence, though some of them should have been what in other crimes would be called accessaries in contradistinction to principals. But it does not follow from that that they are all guilty in the same degree. Their offence is the same, but the degree is or may be different. Hence the court not only may, but are bound to assess several fines upon them, and if they should pass a joint judgment against them, it is error. 11 Coke, 43. Otherwise, says Lord Coke, one man might lie in goal until all his companions had paid their fines. But in civil actions the rule is reversed. All who join in a trespass or in wrong to another, whatever be the degree of their participation, provided it is sufficient to make them principals in the act, are jointly and severally bound to the party injured to make him full and complete reparation in damages. Each is not merely bound to the extent of the injury he has personally inflicted, but to the whole of that which he has contributed to inflict. The damages, that he is made to pay are not considered in the light of a punishment, that the law has provided for otherwise, but in that of an indemnity to the injured party. Were it otherwise, the rich might every day injure the poor with impunity, the rich men standing at a distance and giving merely the countenance of their presence to the beggarly desperado who inflicted the direct injury, and from whom no indemnity could be recovered. Such law might suit the meridian of Venice, and Naples, but surely not that of the United States. Again, if the jury could sever in damages, while the plaintiff could only make his election de melioribus damnis, the damna meliora might be awarded against a beggar, and fix costs only against the only man, whose fortune promised him the chance of an indemnity. True, he is driven to that choice, if he brings separate actions, and that is perfectly right, and it would be better still, in my opinion, if separate actions were prohibited, or if one recovery with satisfaction, should be a bar to all other actions, but the Supreme Court of New York, have decided otherwise in the case before quoted. For I consider separate actions as an act of oppression, and the doctrine de melioribus damnis was very justly applied in Duane v. Mierchen, 4 Yates,

437. The trespass, indeed, in that case was a flagrant outrage committed on the plaintiff, and such an one, as I hope never to see repeated, and the damages which Duane recovered from the first defendant, were trifling in comparison to it; but it was his own fault; if he had brought one single action against all the defendants jointly, he would have probably recovered adequate damages, with less vexation and trouble to himself and to others. I shall never be sorry to see courts of justice discourage separate actions in all similar cases.

The principle which I have stated is so clear, that I think, that an attempt to demonstrate it further would weaken it. It amounts in a few words to this: criminally every man is to be punished according to the degree of his own offence; civilly he is answerable to repair in toto, the injury done jointly by himself and others to whatever extent he may have participated in it. When Lord Mansfield said, in the case already quoted, that as the degrees of guilt might have been different, the real justice would have been, that the damages should have been respectively assessed in proportion to the real injury done by each defendant.' He did not advert to the distinction between criminal and civil cases, and the idea of punishment must have been at that time floating in his mind, or he was misled by some vague idea of distributive justice, that occurred to him at the moment, and the fallacy of which he could have perceived on a moment's reflection. His opinion, I presume, influenced the decision of the Supreme Court of South Carolina, in White v. McNeily, 1 Bay. 10, when they established a principle so much in opposition to the principles of law and justice. But there is something specious, in the idea of proportional damages, by which the mind, even of the greatest men are apt to be misled, as we have seen in these two remarkable examples.

My opinion, therefore, is, that when a joint action is brought, although the jury may sever in their verdict, by finding one or more guilty, and the others not guilty, they cannot sever in damages, and I think the weight of authorities, particularly the most modern, is with me in this decision. On this principle, although I highly respect the talents of the honorable judge (Hemphill,) who presided in the District Court for the city and county of Philadelphia, on the decision of the case Shultz v. Hunter, 2 Brown, 233, my mind cannot yield its assent to

If

the judgment, which that court then gave de melioribus damnis on a verdict in which the jury had severed in the damages. I think they should have awarded a venire fac. de novo, and directed the jury to assess joint damages on the new trial. ever such a case, gentlemen, should occur to any of you, I think you might with safety carry it to the Supreme Court, if several damages were given by a jury in a joint action of trespass, to the prejudice of your client.

D.

ART. VII.—MANNER OF ELECTING PROFESSORS OF LAW IN FRANCE.

[The attention, now given both in this country and in England, to legal education, and to the establishment of law schools and professorships, will impart an interest to the following curious account, translated by a correspondent, from the pages of the Themis ou Bibliotheque du Jurisconsult, tome 1, p. 269 a journal, whose value and learning were acknowledged by all who read it at the time of its publication, and which is now referred to, as a standard work and collection relating to jurisprudence, by every student of the Roman and the foreign law. Its place is imperfectly supplied, at the present time, by the Revue Etrangere, of M. Fœlix. We should add, that we believe, the mode of electing professors, described below, has prevailed, to a considerable extent, for a long period, upon the continent of Europe. It was upon a trial, like this, that the great Cujas lost his election, when he first offered himself as a candidate for a professorship of the Roman law the study and knowledge of which it was his high destiny to advance so immeasurably beyond all his predecessors. His successful competitor, Forcadel-whose name has come down to us, only on account of this academic victory was preferred, because he held to the old method of teaching the Roman law, la methode barbare des Bartolistes, whereas Cujas was the founder of a new school. This mode of election, probably, sprung up shortly after the days of the feudal system, and seems to have been actuated by no small

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portion of the spirit of knighthood. Indeed, the concurrence seems to be a sort of tournament or joust devised for men of the toga. ED. JUR.]

WHEN a chair becomes vacant in one of the faculties of law, the commission of public instruction, by a decree, appoints the day for the opening of a concurrence, (concours) designates the faculty, before which it is to take place, names the president of the concurrence, and the judges to be added to the professors of the faculty. There must be at least four months, between the day of the decree, which ordains the opening of a concurrence, and the day fixed for the opening. During this interval the concurrence is announced by the journals and by notices put up in each academic district, (arrondissement) and principally in those cities, where there is a faculty of law.

The conditions, requisite for admission to the concurrence, are that the applicant be a native or naturalized Frenchman, a doctor in law, admitted in one of the faculties, or in an ancient university, and also thirty years of age. The commission may dispense with the requisite of age, but not to more than three of the candidates, at the same concurrence.

At Paris, the judges of the concurrence must be nine in number, at least, including the president, at the time of the opening, and cannot proceed to judgment, if reduced to less than seven. In the other faculties, eight are sufficient, at the opening, and five for the judgment. Every professor of the faculty, before which a concurrence is opened, is one of the judges de jure. The commission appoints the other judges, from the professors of the other faculties of law, the magistrates of the sovereign courts, the adjunct professors of the faculty, the doctors in law, or the ancient advocates. If the number of judges is found incomplete, at the time of the opening, it is to be filled up by the president, from the persons above designated.

The jurisconsults, who are desirous of becoming candidates, must deliver or send to the secretary of the faculty, before whom the concurrence is to be opened, at least fifty days before the opening, documents to prove that they have the requisite

qualifications, and also their address. The faculty immediately proceed to an examination of these documents, and in three days, the dean gives notice to the candidates of the result of the examination. Those who are rejected may appeal to the commission of public instruction.

Three days before the opening, all the candidates, upon the convocation of the president, attend a sitting of the judges, at a time mentioned in the convocation, and write their names and addresses in a register. They are then to propose their challenges, which are determined upon by the assembly. Every candidate, who neglects to attend at this sitting, without sufficient excuse, is excluded from the concurrence. The trials are three in number. For the first, the judges of the concurrence select three questions exclusively relative to the matters of instruction belonging to the vacant chair, and one of the candidates draws by lot, that which is to be treated. All the candidates are afterwards shut up in a room, and in the space of six hours, at the most, each of them must discuss the subject in writing, and in Latin, if the vacant chair is one of Roman law. The candidates are allowed no other assistance than that of the French codes, and the Corpus Juris Civilis.

For the second trial, the judges of the concurrence designate several subjects for lectures, taken from those, the teaching of which belongs to the vacant chair. These subjects are afterwards drawn by lot, by the different candidates. Each of them must, on as many different days, deliver three lectures, upon the subject, which falls to his lot; the first, three days after the drawing, and the others, upon days designated by the judges. The lectures are public, and three quarters of an hour each in length. The candidates are only allowed to make use of mere

notes.

For the third trial, the judges designate as many subjects of thesis, as there are candidates, and each of the latter draws one of these subjects from an urn in which they are deposited. If the vacant chair is one of French law, or of Roman law, subjects are selected from the code civile, which are also treated in the Corpus Juris Civilis. Each of the candidates must publish a thesis, containing, 1st. the general principles of the subject, as well in the Roman as in the French law; and 2d. a brief solution of the most important questions arising from the subject, in