More's place is among scholars and philanthropists; and Bacon belongs to mankind. This is pretty near the moral we endeav- | the highest sense, or fairly set up an object ored to point in our review of the Life of of hero-worship; and though it may be Lord Eldon. In the course of that review, urged that a following generation is as likewe also discussed most of the obvious topics ly to err from ignorance or forgetfulness as suggested by this description of biography, a contemporary age from prejudice, this can and there is no necessity for recurring to only apply to persons whose services have them. For this reason we shall deal with been performed in obscurity; and it is the works before us rather differently; and hardly possible to conceive a case in which rather differently than we should deal with so conspicuous an actor as a successful lawworks whose contents, (or the more attrac- yer could be held entitled to a national tive portion of them,) transferred to our tribute, if, to establish his claim, it were pages, would have the charm of novelty. necessary to reverse the judgment or kindle We shall abridge and quote only so much the enthusiasm of posterity. On this prinof these as may be found necessary in an ciple, we hesitated a little before we put attempt we are about to make, to fix the down Lord Stowell, doubting whether the claims and character of the legal profession sense of his greatness was sufficiently dif in England by a sketch of its brightest or- fused; but his Continental reputation more naments, its proudest illustrations-the law-than counterbalances any insensibility yers to whom the traditions of past ages, or (which can arise only from pure ignorance) the remains of hero-worship' still linger- in his countrymen. As to Glanville, Bracing in our own, would assign niches in a ton, and Littleton, they are mere abstracBritish Valhalla, or (our nearest approach tions or names for books. Sir Thomas to a Valhalla) the passages and waitingrooms of the new Houses of Parliament. That the attempt is a somewhat hazardous In the controversy raised by the Report one, is undeniable; and the difficulties re- of the Committee of Taste relative to the cently experienced by the famous Commit- proposed statue of Cromwell, it was vehetee of Taste in classifying the Worthies of mently debated to what extent the want of the United Kingdom, are alone sufficient to virtue or morality was an allowable deducprove the impossibility of inducing unani- tion from greatness; and most reasonable mous, or any thing like unanimous, agree- people came to the conclusion that nothing ment on such points; but we believe the more could be fairly required than that the majority of impartial persons, after duly prominent impression should be that of weighing, comparing and analyzing, will great capacity or high enterprise, not ignocome to the conclusion that there are only bly directed, and leaving indelible traces of eleven English lawyers who fairly combine the passage of a master-mind. It is enough, the two essential requisites of professional therefore, to say of Coke, the first upon our admiration and popular renown: Coke, list of worthies, that he was the most proHale, Somers, Holt, Hardwicke, Mansfield, foundly learned English lawyer that ever Camden, Blackstone, Stowell, Erskine, and lived; and that his writings on professional Romilly. There is something factitious or subjects form an epoch in the history of our fugitive about all the rest who might be Law. The famous Commentary on Littlenamed as candidates. They may have been ton has been not unaptly termed the Lawgreat judges, like Lords Kenyon, Ellenbor-yer's Bible, (we rather think the name was ough, and Tenterden; or consummate ad- first given by Dr. Watt,) so deep and unrevocates, like the late Lord Abinger and Sir mitting was the attention devoted to it in William Follett; but they took things pretty the days of the Hargraves and Butlers; nearly as they found them, and therefore and as to the Reports, let his great rival left no impress on their age; they con- Bacon speak To give every man his tributed nothing, or nothing of an endur- due, had it not been for Sir Edward Coke's ing character, to legislation or legal litera- Reports, which, though they have many ture; they were not associated with any errors, and some peremptory and extrajudi great struggle for constitutional rights; nor cial resolutions more than are warranted, (above all) is any impulsive feeling of ad- yet they contain infinite good decisions and miration or respect awakened in the minds rulings over of cases; the law by this time of the greater public by the bare mention had been like a ship without ballast, for of their names. Now popular (at least un- that the cases of modern experience are professional) recognition is, in our opinion, fled from those that are adjudged and ruled indispensable to make a genuine worthy in in former time.' : His professional admirers may fairly rest from party, and helping to maintain order, here; and perhaps this would be their without regarding whether Cavaliers or wisest course; for it is far from clear that Roundheads, Presbyterians or IndepenCoke really played the prominent and orig- dents, Kings, Parliaments, or Lords-Proinal part in asserting the independence of tectors, were uppermost. Indeed, it is obthe Bench that has been popularly attributed vious that the evils of a revolutionary or to him. We threw out a hint to this effect transition state of things would be incalcuin an Article of some length on Mr. John- lably increased-nay, that downright anarstone's Life of Coke, in our forty-seventh chy might ensue-if all men of honor and volume; but it is right to add that, on one principle were to decline acting in a magisor two occasions, Coke, by his own show- terial capacity, under a government whose ing at least, personally confronted the King title was disputed; or if it were made a test in a manner which does him infinite credit, of integrity and patriotism (as it certainly considering the frail tenure on which he was in one ancient republic) to go heart held his office. For example: and soul with one faction or another; in which case no compromise could ever be 'A controversy of law between parties was practicable, and no honest mediator could heard by the king, and sentence given, which exist. 'It was Hale's deliberate rule' was repealed for this, that it did not belong to (says Mr. Merivale, the writer of the able the common law: then the king said that he thought the law was founded upon reason, and biographical notice in Mr. Welsby's collecthat he and others had reason, as well as the tion) to acquiesce in the government de judges: to which it was answered by me, that facto, without servile approbation of its true it was that God had endowed his majesty measures, if obnoxious to his sense of right. with excellent science, and great endowments His notion of the duty of a citizen was the of nature; but his majesty was not learned in very reverse of that of the nonjurors of the laws of his realm of England, and causes every revolution. He proposed the Roman which concerned the life, or inheritance, or goods, or fortunes of his subjects, are not to be citizen Atticus to himself as a model in decided by natural reason, but by the artificial political conduct; and, of course, he was reason and judgment of law, which law is an willing to incur the reproach to which that art which requires long study and experience, personage was subject from all classes of before that a man can attain to the cognizance partisans in ancient Rome, who treated him of it; and that the law was the golden met- as a trimmer and waiter on Providence.' wand and measure to try the cause of the subjects; and which protected his majesty in safety and peace; with which the king was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege.* It requires much force of character, and the true spirit of self-sacrifice properly manifested on occasions, not to merit this reproach to some extent; and we are far from clear that Atticus did not merit it. There is a wide difference between positively refusing to take either side in a party contest, and withdrawing into private life The leading events in the political and to indulge a taste for indolence, lettered or private life of Coke were enumerated and unlettered. We may mourn over the fate discussed in the article already mentioned. of Archimedes, too much occupied by his Hale's reputation is of a very different or problem to know that Syracuse was taken; der. It rests on the whole tenor of a life: but as for the country squire who was oband his habit of setting down his inmost served quietly drawing a fox-cover within thoughts in writing has fortunately enabled half-a-mile of the field of Edgehill, on the us to form an estimate of the springs which morning of the fight, the first trooper who influenced his conduct, as well as of his came across him would have been justified outward demeanor and public professions. in cleaving him to the girdle. Hale hit It needed something of the sort to redeem the happy medium, and received the rea part of his career from the suspicion of spectful confidence of the leading men of time-serving; but when we are properly both sides. In his professional capacity, impressed with the principles on which he he was employed by turns for the parlia acted, we gradually come round to the con-ment and the crown. Burnet says he was clusion, that a man will best discharge the assigned Counsel to Charles I. on his trial; duties of a good citizen and upright magis- and Sergeant Runnington conjectures that trate, in troubled times, by keeping aloof it was by Hale's advice that the King took * 12 Rep. p. 65. the line of denying the jurisdiction of the court. 6 But this is only conjecture; and [dered it, saying, 'I can no longer act under the Bishop of St. David's (Thirlwall) in such authority.' his edition of Burnet, doubts whether Hale He sat as member for the county of Glou was ever so assigned or acted at all. cester in the Parliament which recalled The fate of the Monarch and the Mon-Charles II., and he endeavored to obviate archy filled Hale with anxious forebodings; the bad consequences of an unconditional and he is said to have hid the unfinished restoration, by moving for a committee to manuscript of his Pleas of the Crown' digest propositions, &c.; but the motion was behind the wainscoting of his study, with opposed by Monk, and failed in conse the remark, that 'There would be no more quence. Yet such was the general esti-occasion for them until the King was re-mate of Hale's virtues and judicial merit, stored to his right.' He afterwards de- that one of the first acts of the restored fended Lord Craven in so independent a government was to appoint him Chief Ba-manner, as to draw on himself the threats ron; the pleasure of the Crown being of the Attorney-General for the Common-thus notified by Lord Clarendon-'If the wealth; but very shortly after the com- King could have found an honester or an mencement of the Protectorate, (December abler man for the employment, he would 16, 1653,) Cromwell sent for him, and pro- not have advanced you to it. He prefers posed to make him a Judge. The story you, because he knows no one who so well goes that Hale objected, and plainly told deserves it.' the Protector that he was not satisfied of In the olden time, it was not decent to his authority, but gave up his scruples on be made a Bishop without a struggle, and Cromwell's saying,-'If you won't let me Speakers were invariably forced into the govern by red gowns, I am resolved to gov- chair. We are not aware whether Judges ern by red coats.' Sergeant Runnington, were expected to go through the same farce, with the caution of an old pleader, ques- but, considering that Hale had already acttions the authenticity of this anecdote. 'Ied as a Judge for several years, some of the doubt whether the army had at this time reasons he drew up on this occasion for his any regular uniform; and, if they had, that unwillingness to accept the dignity, savor it was scarlet.' But Mr. Merivale asserts somewhat of undue refinement or affected that many of Cromwell's regiments certain- humility. They were twelve in number; ly wore red coats, though a regular uniform and one is, that having had the perusal of was not introduced into the French army most of the considerable titles and questill 1670, nor into the English until a still tions in law then on foot in England, 'it later period. Be this as it may, Hale be- is not so fit for me, that am pre-engaged came convinced of the propriety of com- in opinion, to have these cases fall under pliance, and accepted the appointment of a my judgment as a judge,'-an argument puisne Judge of the Common Pleas. His which would disqualify all men in large scruples, however, were not yet silenced, practice, and render, for example, the apand he soon came to a resolution to take no pointment of the present Chief-Justice of part in the administration of the criminal the Common Pleas, generally esteemed the law, because, in matters of blood, he was very best that could have been made, decialways to choose the safe side.' The dis- dedly the worst. But what induces us to tinction is so utterly indefensible, except as think that a certain degree of self-abasea matter of personal feeling, that his biog-ment was conventional and expected, is the raphers have employed a good deal of con- conclusion; where he prays, that if he jectural reasoning to account for it. One must take something, it may be the lowest solution is, that Cromwell's repeated interference made it impossible to insure a fair trial, but the only recorded instance of such interference occurred in a civil suit. It is said that, finding the jury returned by the express direction of Cromwell, Hale dismissed them, and refused to try the cause; that Cromwell sent for him, and said, ' You are not fit to be a judge;' and that Hale gravely answered, 'It is true.' He notwithstanding retained his office till the death of the Protector, when he instantly surren place that may be, that I may avoid envyone of his Majesty's counsel in ordinary,* or, at most, the place of a puisne Judge in the Common Pleas, would suit me best.' *Hale was already a Sergeant, but at this period the Crown Counsel were almost exclusively taken from among the Sergeants, which has caused some misapprehension as to the antiquity of the Ellesmere) was made Queen's Counsel at a perirank. Lord Campbell states that Egerton (Lord od antecedent to the nomination of Bacon, who has commonly been deemed the first. He also objects on the score of poverty, prior to the hearing in the appeal court, 'my estate not being above L.500 per an- and gained his cause. We ourselves hapnum, six children unprovided for, and a pened to be present, when a young and very debt of L.1000 lying upon me.' The sala- pretty woman, who was suing for a separaries of the judges were then very low, not tion, returned from her audience. She was exceeding two or three hundred a-year, and quite radiant at the result, and ran in exthe chief emoluments consisted of fees claiming, Tout va bien; le President était and places out of which a family might be charmant pour moi! There may be nothprovided for. ing in such things, but they give rise to odd suspicions at the best; and justice should be like Cæsar's wife; though, by the way, it is far from clear that Cæsar's wife was estimated at her present value by her cotemporaries. Hale carried his scruples regarding presents to an extent which has exposed him to ridicule from some, and to the imputation of pharisaical uprightness from others. Thus, the Dean and Chapter of Salisbury having a case to try before him on the It seems that the practice of personally western circuit, he insisted on being allow- soliciting the Judge prevailed to some exed to pay for the six sugar-loaves which, tent in England in Hale's time; for a noaccording to a long-established custom, bleman of ducal rank was so incensed at they presented to him. With more apparent his refusal to give a private audience, as to reason, he followed the same course as to make formal mention of it to the king, a buck sent him by a litigant, who, it is said, who replied, 'Oddsfish, man! I verily beon learning the reception of his venison, lieve he would have used me no better, had immediately withdrew the record. Unless I gone to solicit him for one of my own this also was a prescriptive donation from causes.' Roger North, who labors hard on one of the parks which, time immemorial, all occasions to depreciate Hale, asserts that have contributed their quota of haunches he had an obvious leaning against the rich to circuit festivity, we do not understand and noble; and Dryden, in the preface to how the most carping adversary can make his Translation of Juvenal, says, 'I reHale's refusal the foundation of a doubt. member a saying of King Charles II. on As was fully explained in a well-known article on Bacon in this Journal, the acceptance of bribes, under the shape of presents, was common, just as fornication and adultery were common after the Restoration, but never otherwise than as a thing which was disapproved and discountenanced by all good men; nay, which revolted even the public opinion of a very corrupt age; or how is the indignant cry raised by the first exposure of Bacon's malversations to be accounted for? Besides, Sir Thomas More had set the example of refusing presents in the early part of the preceding century; and when the paramount importance of preserving the judicial ermine pure from the taint of suspicion is considered, all thinking men will assuredly agree, that, if Hale erred at all, he erred on the right side. We believe the practice of etrennes has been formally abolished in France; but a practice equally blameable still exists there. It is usual for the litigant, male or female, to have a private interview with the President of the court in which the suit is pending; and, on these occasions, every art of solicitation may be employed. An English nobleman, not long ago, neglected this ceremony, and lost his cause in the first instance. He paid the expected compliment Sir Matthew Hale (who was doubtless an uncorrupt and upright man), that his servants were sure to be cast on a trial which was heard before him; not that he thought the judge was possible to be bribed, but that his integrity might be too scrupulous, and that the causes of the crown were always suspicious, where the privileges of the subjects were concerned.' Here, again, we must take into account the all-pervading corruption of the times, and the general subserviency of the judges. An age that could tolerate Scroggs and Jeffries without a simultaneous outbreak of execration or disgust, might consistently sneer at Hale as a seeker of popularity. He was made Chief-Justice of the King's Bench in 1671, and continued in this office until a few months before his death, which took place on December 25th, 1676; so that, including the period he sat as puisne Judge under the Protectorate, he was about twenty years upon the Bench. The only blot upon his career is the sentence of death he passed on two women for witchcraft in 1664. The fate of these victims,' says Mr. Merivale, 'is, in Sir Matthew Hale's life, what that of André is in the life of Washington, and that of D'Enghien in the life of Buonaparte-the chapter to which the reader turns with most exultation, or cellorship. He expended more than a with most regret, according as he is in the thousand pounds in collecting materials for vein to depreciate or exalt the character of this judgment; by which, after all, he lost his subject.' Apologists commonly try to rather than gained credit, having unluckily bring him off on the score of the prejudices come into angry conflict with Holt. Somof his age, but this is simply placing him ers, admitting that the Bankers had a right on a level with the vulgar; for the mon- to their money, (compensation for the destrous injustice of punishing witchcraft, or posits seized by Charles the Second under pretended witchcraft, with death, was the advice of the famous Cabal,) affirmed clearly recognized by all the enlightened that they had no remedy. This, Holt anportion of society. The truth, as suggest-swered, was nonsense; for, if they had ed by Mr. Merivale, seems to be, that the lost one, they had lost the other; but an prejudice in question belonged rather to a Englishman could lose neither but by his sect than to the period; and that the prin- own default, which was not their case.' ciple of Hale's conduct may be found in Such is Lord Dartmouth's Report; who his peculiar religious tenets. The witch- adds that 'Lord Somers' judgment being persecutions under Cromwell, and in New-overruled, after a warm debate, he fell ill, England, show the sectarian feeling on the and never appeared on the woolsack more.' point; and, so late as 1743, the repeal of The judgment of the Lords, right or wrong, the penal laws against witchcraft was de- was the result of party feeling; and Mr. nounced by the Presbytery in Edinburgh Townshend says, their lordships warmly as a national sin. Hale made his judgment cheered the Chief-Justice, during the dethe subject of a written meditation, Con-livery of his opinion, as if he had been adcerning the mercy of God, in preserving us dressing them on a popular question, and from the malice and power of Evil Angels;' as a member of their House; but there is and reflected with entire satisfaction on no more truth in the notion that Somers what he had done. was driven from the woolsack by Holt, than These follies of the wise, however, have that the late Lord Ellenborough was killed their moral; and Hale was wise in the high-by Hone. Somers had become unpopular est sense. His writings are full of wisdom, from other causes, and William sacrificed worldly as well as heavenly; his letters of him without scruple, a weakness of which advice to his children are better than the he is said to have sincerely repented tobest of Chesterfield's; and the piety evi-wards the end of his life. The tributes to denced by his meditations fairly merits the noble eulogy of Cowper: Such was thy wisdom Newton, childlike sage! Somers, in prose and verse, by the best writers of our Augustan age, would fill half a volume. Swift, after paying him one of the most graceful compliments on record,* tried to run him down, but the praise has outlived the satire : and there are few imLord Mahon, 'I know not where to find a partial historians who would not say with more upright and unsullied character than Lord Somers.' The memoir of Holt is one of the best in the collection; Mr. Welsby has evidently bestowed more than ordinary care in the collection of materials for it, and he has acted most judiciously; for Holt is the Judge of all others of whom the English ought to know a great deal, yet know in fact next to nothing. There is no good Life of Somers, and such a life would belong more to general than legal history; for he owes the brightest part of his reputation to his having been the leading lawyer of the great party which brought about and consolidated the Revolution of 1688. His defence of the Bish- He was born in 1642, the son of Sir ops (who at first objected to him, he being Thomas Holt, knight, of Oxfordshire, a then thirty-seven, on the score of youth In the dedication of The Tale of a Tub, a and inexperience), is the only forensic ex- work which Mr. Cooksey claims for Somers himploit by which he was much distinguished self. Mr. Cooksey's Life of Somers is meagre and at the bar; and his judgment in the Bank-bad. The chapter on Somers in Mr Townshend's ers' case is the only decision by which he but the career of such a man cannot be comprised History of the House of Commons is ably written, is remembered during his four years' Chan- in a chapter. * |