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CORNELL UNIVERSITY LIBRARY 
 
 924 084 200 207 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924084200207 
 
SHORT STUDIES 
 
 Great 
 
 IS 
 
 BY 
 
 IRVING BROWNE. 
 
 PUBLISHED BV 
 
 THE ALBANY LAW JOURNAL. 
 
 ALBANY, N. Y. 
 
 1878. 
 
IJ"//^^^ 
 
 Entered, according to act of Congress, in the year 1878, 
 
 By weed, parsons AND COMPANY, 
 
 In the office of the Librarian of Congress, at Washington. 
 
PREFACE. 
 
 Although a book would probably be lawful 
 without a preface, yet it would be unusual, and, 
 possibly, might be deemed uncivil. The follow- 
 ing sketches were originally published in the 
 Albany Law Journal. They were not designed 
 as biographies so much as estimates of character 
 and career. If the critics should take any notice 
 of them, I can anticipate some things that will 
 be said. One writer will wonder why Sir Mat- 
 thew Hale and Lord Haedwioke, who cer- 
 tainly were great lawyers, are not included ; and 
 another will wonder why Riohaed Eikee, who 
 certainly was not a great lawyer, is given a 
 place. Another critic will wonder why I did 
 not make the book different. Still another will 
 be surprised that I did not make it better. And, 
 finally, will come the inevitable censor, who will 
 wonder why I made it at all, and refer to the 
 necessity in such matters of the " rcdson detre." 
 
iv Peeface. 
 
 These gentlemen are equally unanswerable ; and 
 to all such I can only say, " I am sure I don't 
 know. I promise never to do so again." All I 
 can reasonably hope is, that the critics will 
 either praise or dispraise my little book, and 
 that the public, consequently, will buy it. 
 
COI^TElvrTS. 
 
 Born. Died. Page. 
 
 Coke 1549 1634 1 
 
 Mansfield 1705 1793 14 
 
 Kenyon 1733 1803 29 
 
 Thurlow 1733 1806 44 
 
 Loughborough 1733 1805 61 
 
 Ellenborough 1750 1818 76 
 
 Erskine 1750 1833 90 
 
 Eldon 1751 1838 105 
 
 Romilly 1757 1818 130 
 
 Abinger 1769 1844 136 
 
 Brougham 1778 1868 153 
 
 Parsons 1750 1813 184 
 
 Marshall 1755 1835 203 
 
 Kent 1763 1847 218 
 
 Pinkney 1764 1833 338 
 
 Wirt 1773 1834 356 
 
 Riker 1773 1843 375 
 
 Story 1779 1845 389 
 
 Webster 1783 1853 307 
 
 Walworth 1788 1866 341 
 
 Choate 1799 1859 357 
 
LOED COKE. 
 
 BOEN in 1561 and dying in 1634, Coke lived 
 in the most interesting era of onr annals. 
 His times were crowded with the most stirring 
 and important events, and the actors npon the 
 stage of life were among the greatest of the human 
 race. 
 
 The battle of Lepanto, the massacre of Saint 
 Bartholemew, the defeat of the Spanish Armada, 
 the first circumnavigation of the globe, the Gun- 
 powder Plot, the deliverance of Holland from 
 Spain, the invention of the telescope, — these were 
 events the like of which no old man in our times 
 can enumerate in the evening of his days as hav- 
 ing occurred within his recollection. Much less 
 can any living man number among his contem- 
 poraries such a female sovereign as EKzabeth ; such 
 poets as Spenser, Shakespeare, Jonson, Milton, 
 Tasso ; such philosophers as Bacon and Descartes ; 
 such discoverers as Gallileo, Raleigh, Drake ; such 
 statesmen as Grotius, Bm-leigh, Cromwell ; such 
 prose authors as Montaigne and Cervantes ; such 
 artists as Michael Angelo and Rubens. To have 
 been* regarded by his contemporaries as the great- 
 
2 LoED Coke. 
 
 est lawyer of such, an era, and to have this judg- 
 ment unhesitatingly confirmed by posterity, is no 
 small fame for any man, and this glory is Edward 
 Coke's. 
 
 Coke's character is one of great lights and deep 
 shades. We discover in it none of the irregulari- 
 ties of genius, but much of the meanness of a 
 calculating and petty mind. In estimating his 
 character, we must not compare him with great 
 lawyers in our day, nor with those of a century 
 ago — neither with a Mansfield nor with a Mar- 
 shall, — but with his contemporaries, and measure 
 him by that standard. This will excuse or extenu- 
 ate much that would othe];wise seem harsh, arro- 
 gant, and violent in his character. This basis of 
 judgment, however, must not be too exclusively 
 relied on. N"ot what was practiced, but what was 
 thought of the practice, in any given age, is the 
 proper standard of judgment. Thus Coke's use 
 of the rack in the examination of accused persons 
 may be pardoned, beeau.se it was in consonance 
 with the cruelty of that day, and very few thought 
 it wrong ; bat Bacon's taking of bribes cannot be 
 justified, because, although such conduct was then 
 not unprecedented among judges, yet the moral 
 sense of the times was opposed to it, and he was 
 condemned by it. So of Coke's abuse of Raleigh 
 and Essex, which was remembered against him on 
 his own downfall, and of which Bacon said : 
 " You were wont to insult over misery, and to 
 
LoED Coke. 3 
 
 inveigh bitterly at the persons, which bred you 
 many enemies, whose poison yet swelleth, and the 
 effects now appear." It must be borne in mind, 
 when we undertake to form a judgment of his 
 intellectual weight, that he stood at the spring of 
 the law, and not at its ocean side. The law in 
 Coke's day was a narrow, artificial, and unaccom- 
 modating system. Scarcely one of the fertile 
 sources of modern litigation was then known. The 
 principal part of legal learning was then restricted 
 to the abstruse and difficult real estate law, while 
 bills of exchange, insurances, patents, telegraphs, 
 railroads, and trade-marks were as much unrealized 
 as the wonders of the Arabian tales. Lord Camp- 
 bell wrote, a quarter of a century ago, " there are 
 now more volumes of law reports pubhshed every 
 year than at that time constituted a lawyer's li- 
 brary." There were then only twelve volumes of 
 reports extant ! If Lord Campbell had flourished 
 now, he must have written " month " instead of 
 "year." Possibly three hundred years hence as 
 many more new subjects of litigation will arise, 
 and those which now engross our attention will 
 have become antiquated or superseded. If not, 
 we must pray for a new caliph of Omar to burn 
 our books, or resort to a bibliothecal repudiation. 
 The two most salient points of Coke's character 
 on its favorable side were his learning, his integ- 
 rity, and his independence. Of the former, that 
 may be said which cannot be said of any lawyer 
 
4 Lord Coke. 
 
 of our day, or of the last century, — it was exhaust- 
 ive and complete. He knew all the law of his 
 time — ^he made a good deal of it, or if he did not 
 create it, he methodized it and rendered it practi- 
 cal. He was the first great commentator of the 
 law of England and the first great reporter of the 
 decisions of her courts. A more striking evidence 
 of even the wisest man's lack of prescience was 
 never afforded, than his apology for writing his 
 commentaries in English, nor was a more amusing 
 expedient to render law reports comprehensible 
 and readable ever given than his rhymed abstracts 
 of the different cases, beginning with the name of 
 the plaintiff, as for instance : 
 
 Hubbard : 
 
 " If lord impose excessive line. 
 
 The tenant safely payment may decline." — (4 Rep. 27.) 
 
 Caxodry : 
 
 " 'Gainst common prayer if parson say 
 
 In sermon aught, bishop deprive him may." — (5 Rep. 1.) 
 
 Coke's great rival. Bacon, praises his reports, and 
 justly ascribes to them the praise of having pre- 
 served the vessel of the common law in a steady 
 and consistent course, " for the law," says he, " by 
 this time had been like a ship without ballast, for 
 that the cases of modem experience are fled from 
 those than are adjudged and ruled in former 
 time." Much of Coke's learning is too crabbed 
 and abstruse for our use, biit it has been appropri- 
 
 <■■ 
 
LoED Coke. 5 
 
 ated and remoulded by succeeding commentators, 
 until it has become incorporated into our common 
 law, as Shakespeare has been taken into our com- 
 mon speech, so that we know something of him 
 without having studied him. As to his integrity 
 he was pure in an age when so great a man as 
 Bacon was corrupt. This virtue lost something 
 of its charm in his case from the arrogance with 
 which he asserted it, as in his vindictive prosecu- 
 tion of Bacon, but his bitterest enemies have 
 never been able to point to a spot in his judicial 
 ermine. But the noblest trait of his character 
 was his independence. Under a grasping tyrant, 
 who formed a systematic plan to convert the 
 throne of England into an absolute sovereignty, 
 and when most public men and the judges were 
 obsequious and subservient, Coke, while in place, 
 preserved a lofty independence, proof against favor 
 and flattery. He opposed the attempt to invest 
 the Court of High Commission, instituted for 
 ecclesiastical jurisdiction, with lay and temporal 
 authority ; he resisted the claim of the king to sit 
 and try causes ; he checked the arbitrary proceed- 
 ings of the other courts ; and he denied the power 
 of the crown to alter the law by proclamation. 
 But his independence shone most clearly in the 
 case of corrmiendams, where the king claimed the 
 right to prohibit the hearing of any cause m which 
 his prerogative was concerned, at his pleasure- 
 
6 LoED Coke. 
 
 In the particular case in whicK this question tirst 
 arose, Coke was able to persuade the other judges 
 to join him in a letter to the king, protesting 
 against the innovation. The king, in a rage, sum- 
 moned all the judges before him, and " all the 
 twelve threw themselves on their knees, and prayed 
 for pardon." So one biographer writes, but this 
 is incorrect. Coke did not kneel, and he did not 
 yield. Believing that all were overawed, the king 
 put the question : " In a case where the king 
 believes his prerogative or interest to be concerned, 
 and requires the judges to attend him for their 
 advice, ought they not to stay proceedings until 
 his majesty has consulted them ? " All the judges 
 except Coke eagerly responded in the aflS.rmative, 
 but he replied : " When the case happens, I shall do 
 that which shall le fit for a judge to do." Happy 
 has it been for England, that at critical junctures 
 she has found such lofty spirits to save her hberties 
 by a few daring words. Posterity can well afford 
 to be bhnd to all Coke's faults, when they inscribe 
 this answer as his epitaph. 
 
 But the medal has a pitiful reverse. Great and 
 admirable in prosperity, Coke was ignoble in ad- 
 versity. Herein he presented an extreme contrast 
 to his rival Bacon, who was despicable in power, 
 but dignified and uncomplaining in misfortune. 
 While Coke was in place, he seemed to despise it, 
 but when he lost it he groveled in his attempts to 
 
LoED Coke. 7 
 
 regain it. Perhaps his sense of the petty nature of 
 the accusations which cost him his power served to 
 irritate him, and prevent him from accepting his 
 fate with the cahnness which should have accom- 
 panied his independent spirit. To lose the chief- 
 justiceship because he had written himself " lord 
 chief -justice of England," . instead Df " lord chief- 
 justice of the king's bench ; " because his coachman 
 had rode before him bareheaded ; and because of 
 some errors in his reports, was indeed trying to 
 his patience. Bacon, on the other hand, felt the 
 gravity of his offense, and succumbed to the 
 punishment. At this period occurred the most 
 mortifying episode of Coke's life. His second 
 wife, Lady Hatton, had brought him a daughter. 
 Lady Frances. It was of this daughter that Jonson 
 wrote : 
 
 " Though your either cheek discloses 
 Mingled baths of milk and roses ; 
 
 Though your lips be banks of blisses, 
 Where he plants and gathers kisses ; 
 
 And yourself the reason why 
 Wisest men of love raay die ! " 
 
 To ingratiate himself with the coui-t. Coke offered 
 this daughter in marriage, with her fortune and 
 expectations, to Sir John Yilliers, the brother of 
 the Duke of Buckingham (the king's favorite), 
 thrice her age and very poor. The match was 
 violently opposed by Lady Hatton, who iled with 
 the daughter from her husband's house, and offered 
 her in marriage to the Earl of Oxford. Coke 
 
8 LoED Coke. 
 
 gathered a band of armed men, arrayed himself 
 in a breastplate, armed himself, and heading his 
 forces, made an attack on his wife's hiding place, 
 bm-st open gates and doors, carried away his 
 daughter, and imprisoned her in his own house. 
 The mother made a forcible attempt to regain 
 possession of her daughter, for which Coke had 
 her imprisoned, and dming her confinement, des- 
 pite all the efEorts of Bacon to defeat the match, 
 the marriage to Yilliers took place. This contempt- 
 ible subserviency did not effect its purpose, and 
 Coke had the mortification of seeing his wife 
 released, and high in favor at the court, to his own 
 exclusion. "We believe, however, that Dixon 
 grossly exaggerates when he represents Coke, at 
 the time of his imprisonment, as groveling and 
 kneeling before the council, praying to be spared 
 the shame of a public trial, and that too, " under 
 his rival's eye, in the same ignominious attitude, 
 begging for mercy in the same miserable tone." 
 The picture is overdrawn and improbable. Such 
 is not the conduct of the man Avho would not kneel 
 to the king, but defied him. This is the misrepre- 
 sentation of a biographer over-eager to whitewash 
 Bacon, and who calls Coke " the bully of TTestmin- 
 ster Hall," and has no praise for his conduct in 
 respect to the commendams. The same period 
 also illustrates his vindictiveness and envy, in his 
 virulent prosecution of Bacon on the bribery 
 
LoED Coke. 9 
 
 charges, and his want of magnammity in his cold 
 neglect of the great man after his fall. 
 
 In happy contrast with these ignoble struggles 
 and exhibitions was his career as a statesman, prom 
 inent in which was his framing of the famous 
 Petition of Right and his procural of its passage 
 in Parliament. This bill, which has been called the 
 second Magna Gharta, enumerated and protested 
 against the abuses of the crown, and after a fruitless 
 endeavor on the part of the king to introduce 
 a proviso saving " the sovereign power of the 
 crown," and after an ambiguous answer to the 
 demand of the commons for its approval, it 
 received the royal assent — and the king received 
 some subsidies. Of like character was his cele- 
 brated " protestation " in Parliament against the 
 king's doctrine that the privileges of the House 
 were dependent on the crown. Indeed, Coke's 
 career in Parliament was as blameless, elevated, 
 and noble, as his judicial condvict. 
 
 In person Coke was eminently handsome, and 
 his bearing was dignified. His portrait in the 
 hail of Sergeant's Inn, Chancery Lane, represent- 
 ing him with his pointed beard, and dressed in 
 his velvet cap, enormous collar, ermine cloak, 
 and chain of SS., is one of the most elegant and 
 picturesque of British portraits. His graces of 
 person did not extend to his mind. He despised 
 literature. He was a most pedantic and villainous 
 
10 LoED Coke. 
 
 verse-maker. Among the papers seized by the 
 government while he was on his death-bed, was 
 " one paper of poetry to his children." The 
 beneficiaries lost nothing if the gift failed. He 
 considered Shakespeare and Jonson as "vagrants." 
 On the fly-leaf of a copy of the Novum Or- 
 goMum presented to him by its immortal author, 
 he wrote some satirical Latin verses, advising him 
 to restore jnsjiice and the laws rather than the 
 writings of sophists, and on the title page, repre- 
 senting a ship under full sail passing through the 
 Pillars of Hercules, he wrote the following : 
 
 " It deserves not to be read in schooles. 
 But to be f reigbted in tbe Ship of Fools ; " 
 
 meaning Sebastian Brand's work of that title. He 
 wrote down his estimate of letters thus : " The 
 fatal end of these five is beggary, — the alchemist, 
 the monopotext, the concealer, the informer, and 
 the poetaster." He illustrated that contempt by 
 his own example, for a more pedantic and tedious 
 author never wrote. When he tried to be very 
 fine, this was the result : "And for a farewell to 
 our jurisprudent, I wish unto him the gladsome 
 light of jurisprudence, the loveliness of temper- 
 ance, the stabilitie of fortitude, and the soliditie of 
 justice." He was extremely avaricious, and left 
 an enormous fortune. Indeed, his fortune was so 
 great as at one time to excite the alarm of the 
 crown. Still, it is refreshing to read of a rich 
 
LoKD Coke. 11 
 
 lawyer. He married his second wife, who was 
 much younger than himself, for her money, which 
 was considerable, and she despised him, married 
 him privately, and refused to live with him. His 
 temper was bad, and he was not beloved by his 
 contemporaries. He had not even the excuse of 
 indigestion for his temper, for he never had any 
 illness until past eighty. His private character 
 was pure from vice, and he seems to have been 
 sincerely and humbly religious, his last words 
 being, " Thy kingdom come, Thy will be done." 
 He was the most methodical and hard-working 
 man that ever lived, perhaps, and has left, in some 
 of his dog-Latin verses, his division of his time, — 
 six hours to sleep, six to the law, four to prayer, 
 two to the table, the rest to the muses. Doubtless 
 he often cut the Lord and the muses short of their 
 allotted portion; at all events he did not give 
 them time enough himself to learn to forgive his 
 enemies or write good English. He had an 
 adequate idea of his own powers, for when he 
 was imprisoned in the Tower, and the king sent 
 him word that he had " permission to consult with 
 eight of the best learned in the law on his case," 
 he replied that " he knew himself to be accounted 
 to have as much skill in the law as any man in 
 England, and therefore needed no such help, nor 
 feared to be judged by the law." So exclusively 
 a lawyer was he, that during his imprisonment. 
 
12 LoED Coke. 
 
 receiving pel-mission to send foi' books to beguile 
 his weaiy hours, he sent for law books and wrote 
 away on " Co. Litt." His last hours were soothed 
 by his daugliter Frances, against whom he had so 
 grievously sinned in the afEair of her marriage, — 
 a realization of Lear and Cordelia, as drawn by 
 the " vagrant " Shakespeare, except that in this 
 case Cordelia had led a dissolute life. 
 
 As Coke was hated by his contemporaries, so 
 he has had a scant measure of justice from pos- 
 terity. Destitute of the graces and amiabihty of 
 Bacon, he has failed to educe the admiration of 
 mankind to the extent which he has deserved. 
 While Bacon's vices are forgotten in the glow of 
 his genius, Coke's important services to mankind 
 are lost sight of in view of the repulsive and 
 crabbed features of his character. This is a sig- 
 nificant evidence that no man can hope to attain 
 lasting fame by being a mere lawyer. Was it not 
 Bacon himself who said " the only immortality is 
 in a book ? " Certainly it is not in a law book. 
 If Coke had only written a good novel or poem, 
 he might have been as morose as Dante, as im- 
 provident as Goldsmith, as arrogant as Johnson, 
 as un uxorious as Dickens, as irreligious as Shelley, 
 and as dissolute as Byron, and posterity would 
 never have counted it seriously against him. The 
 time will come when even the great Mansfield will 
 chieflv be remembered because a little deformed 
 
LoBD Cok;e. 13 
 
 poet was his friend, and wrote a single verse about 
 him. Heroes lived before Agamemnon, but they 
 are forgotten because they had no " sacred jaoet " 
 to commemorate them. Coke's daughter had her 
 poet ; Coke had none. Law cannot afford to de- 
 spise literature. Coke's rival, whom he so hated, 
 and whose literary genius he despised, was a con- 
 siderable lawyer, but it is not that which has ren- 
 dered him famous, and which will make his name 
 resplendent when Coke's is " but a dim-remem- 
 bered story of the old time entombed." Coke 
 deserves better of posterity than he will receive, 
 for he will be remembered as the man who abused 
 Raleigh and persecuted Bacon, — " as a deep but 
 narrow-minded lawyer, knowing hardly any thing 
 beyond the wearisome and crabbed learning of his 
 own craft, famous only in his own country, and 
 repelling all friendship by his harsh manners," 
 and not, as Hallam expresses it, as " the strenuous 
 asserter of liberty on the principles of those an- 
 cient laws which no one was admitted to know so 
 well as himself, redeeming, in an intrepid and 
 patriotic old age, the faults which we cannot avoid 
 perceiving in his earlier life." 
 
LQED MAl^SFIELD. 
 
 ri^lHEEE seems to be something in the atmos- 
 -L phere of the English bench conducive to lon- 
 gevity. Perhaps the natural love of place has 
 something to do with it, for of office-holders it 
 has been said that few die and none resign. The 
 subject of this sketch, however, falsified this adage 
 in both particulars. From Coke to Oockburn we 
 see the English bench occupied by men of ven- 
 erable years and for long periods. Lord Mans- 
 field's life covered nearly the whole of the eight- 
 eenth century. Born in 1705 and dying in 1793, 
 he opened his eyes to earthly things under Qufeen 
 Anne, and closed them under the third George. 
 The war of the Spanish succession was ragiug in 
 his infancy, the campaigns of the great Frederick 
 were waged in his prime, the American colonies 
 were lost to his country in the evening of his 
 days, and the horrors of the French revolution 
 disturbed his dying hours. " Before he arrived 
 at middle life he witnessed two unsuccessful 
 attempts, a 'generation apart, to reinstate the 
 house of Stuart on the throne, and was the at- 
 torney-general who prosecuted the leaders in the 
 
Lord Maksfield. 15 
 
 latter rebellion. His first important client was the 
 termagant Duchess of Marlborough, and he pre- 
 sided at the trial of Lord Greorge Grordon. His 
 honors were celebrated by the poet Pope, and 
 half a century later by the poet Cowper. Chief 
 Justice of the King's Bench a generation, he was 
 the noblest legal figure of his own times, and has 
 become the brightest legal luminary of posterity, 
 the greatest of the giants who have formed and 
 illustrated the jurisprudence of Great Britain. 
 
 Mansfield's youth was marked by httle of the 
 struggle of most young lawyers of his day. 
 When employment was tardy in coming, he 
 amused himself in historical essays, and even 
 wrote verses. High-born and liberally educated, 
 he was a favorite of fortune, and honors soon 
 sought him as iron filings the magnet. Like 
 many a lesser man, he had an early disappoint- 
 ment in love, but like very few, great or small, 
 he had the most distinguished poet of his century 
 to comfort him in his grief. Pope indulged in 
 poetic vaticinations of his young friend's celeb- 
 rity, and thus invoked Venus in his behalf: 
 
 "To number five direct your doves. 
 And spread round Murray all your blooming loves ; 
 Noble and young, wlio strikes the heart 
 With every sprightly, every decent part ; 
 Equal the injured to defend, 
 To charm the mistress, or to fix the friend ; 
 He, with a hundred arts refined. 
 Shall stretch thy conquests over half the kind. 
 To him each rival shall submit, 
 Make but his riches equal to his wit.'' 
 
16 LoED Mansfield. 
 
 As befitted such an appeal, his first great eSbrt 
 was elicted in an action of crim. con., in behalf 
 of a sister of Dr. Arne, the composer, a great 
 beauty and favorite actress. His success in this 
 case brought him many clients, among the earliest 
 of whom was the great Duchess of Marlborough, 
 who sent him a general retainer with a thousand 
 guineas. Even at this day Mansfield's independ- 
 ence was manifested by his returning her nine 
 hundred and ninety-five, with the message that 
 "the professional fee, with a general retainer, 
 could neither be less nor more than five guineas." 
 At this period he was a gay young man of society. 
 Dr. Johnson says " he drank champagne with the 
 wits." But we do not learn that he was ever dis- 
 solute ; his tastes were always pure. A delightful 
 picture is given us of his midnight conversations 
 with Pope, Warburton and Bolingbroke, while 
 the gorgeous torch-lighted equipage of the great 
 Duchess blocked the way in front of his cham- 
 bers, and the impatient lady made her rank evi- 
 dent to the young lawyer's clerk by her " swear- 
 ing so dreadfully." The great poet even wrote 
 verses in his young friend's chambers, and his 
 ejjigram on Dr. Friend's book of Latin Epitaphs 
 is one of these p];oductions. Lord Campbell says 
 truly : " The distinction conferred on a yoimg 
 lawyer by such an intimacy is more to be envied 
 than chief-]" usticeships and earldoms." Solicitor- 
 
LoKD Mansfield. 17 
 
 general at the age of 37, attorney-general at 40, 
 chief-justice at 49, created earl at 77, — such were 
 his public honors. Married at the age of 35, the 
 union, although childless, was of unbroken har- 
 mony until severed by the death of his wife, after 
 the lapse of almost half a century. 
 
 Mansfield's character was not only very great, 
 but very amiable and pure, undisfigured by the 
 narrowness of Coke, the superstition of Hale, 
 the roughness of Thurlow, the avarice of Kenyon, 
 the vanity of Erskine, the unscrupulousness of 
 Wedderburn ; not distinguished by a few admir- 
 able prominences, but uniformly elevated. His 
 virtues were equal to his genius. His temperance, 
 his moderation, his industry, his dignity, his 
 patience, his courtesy, his candor, his tolerance, 
 and his honesty, united to his learning, culture, 
 wit, eloquence, and broad forecast, form a por- 
 trait before which we bow not only with unal- 
 loyed respect and admiration, but with a deep 
 affection — " the awful form and figure of -justice," 
 as Erskine described him. The esteem and love 
 of the bar were fitly and sincerely testified in 
 the addresses by Yorke, the great Lord Hard- 
 wicke's brilliant son, on his elevation to the chief- 
 justiceship, and by Erskine, on his resignation of 
 that office. 
 
 Lord Mansfield's chief intellectual merit as a 
 judge is, that in a great measure, he created the 
 3 
 
18 LoED Mansfield. 
 
 law which he pronounced. He made the com- 
 mercial law of England. To him we owe the 
 settled form and principles of the law of negoti- 
 able paper and of insurance. He was accused 
 by some of his contemporaries of confounding 
 equitable with legal principles in his administra^ 
 tion, and certainly he did brush away the arti- 
 ficial and trivial notions of old time with an 
 unsparing hand. But he cast the legal future 
 of England in a grand horoscope. He judged 
 rightly of the necessities of a more modem state 
 of society, and of the rapidly growing grandeur 
 of his country's commerce. He built for the fu- 
 ture as well as the then present, and we in our 
 day have not out-grown or distanced his wise 
 provisions. Only two of his decisions were re- 
 versed during his tenure of judicial office, and 
 his authority is higher to-day than it was then. 
 So truly was he the creator of the law of bills 
 that it is almost laughable to read of his laying 
 down for the first time principles which are now 
 as certain and familiar " as those which guide 
 the planets in their orbits." He also adorned 
 the law of evidence to an unprecedented extent ; 
 as one has said of him, " he found it of brick, he 
 left it of marble." He pronounced against the 
 legality of employing "puffers" at an action. 
 He exploded the dogma of escheat in case of 
 wrecks, where no living thing comes ashore 
 
LoED Mansfield. 19 
 
 holding that so long as the owner can identify 
 his property, he may reclaim it. Although in 
 his day wagers were generally legal, yet he de- 
 nounced void a wager on the sex of the notorious 
 Chevalier D'Eon, on the ground that it was im- 
 moral. He vindicated female chastity against 
 titled debauchery in the case of Sir Francis 
 Blake Delaval. He declared himself in favor of 
 literary copyright in the leading case of Milla/r v. 
 Taylor. But his salient characteristics of wisdom, 
 humanity, and classic culture were never more 
 splendidly illustrated than in his judgment in the 
 case of the slave, Somersett, brought by his mas- 
 ter from Jamaica into England. His lordship con- 
 cluded his judgment thus : " The air of England 
 has long been too pure for a slave, and every man is 
 free who breathes it. Every man who comes into 
 England is entitled to the protection of English 
 law, whatever oppression he may heretofore have 
 suffered, and whatever may be the color of his 
 skin : 
 
 ' Quamvis ille niger, quamvis tu candidus esses.' 
 
 Let the negro be discharged." Mansfield's judg- 
 ments cover almost every branch of law, and are 
 the perfection of justice and reason. 
 
 In the other side of the scale there are some 
 weights to be put. The same judge who set Som- 
 ersett free adjudged the pressing of seamen to be 
 legal. As a criminal judge, although merciful 
 
20 LoED Mansfield. 
 
 and never prone to convict without clear evidence, 
 yet he was severe in advocating the extreme pen- 
 alty for forgery. On this point he was not in 
 advance of his age. For the consideration of 
 the hackneyed problem whether he expressed con- 
 tradictory opinions in the case of Perrin v. Blake, 
 we have no space to say more than that it is quite 
 possible that he did, and not at all strange that 
 he or any one else should have done so. But it 
 is in respect to the famous question of the rights 
 of the jury in libel cases that the greatest ani- 
 inadversion, contemporary and subsequent, has 
 arisen against hira. Junius lighted and fanned 
 this flame, and it is mainly through him that 
 posterity has derived its views- on the subject. 
 Now it must be conceded that Lord Mansfield 
 was wrong on this point, according to the law 
 and the public opinion of the present day. " The 
 greater the truth the greater the libel " is no 
 longer the prevailing doctrine, and Fox's bill made 
 juries judges of the law as vsrell as the fact in 
 such cases. But such was not the unanimous nor 
 the general opinion of lawyers in Mansfield's 
 day, and Mansfield's somewhat extravagant loy- 
 alty obscured his legal sense. It must be remem- 
 bered that he did not believe in juries, nor in the 
 jury system, and that he strongly opposed its 
 adoption in Scotland. The venomous charges of 
 corruption and insincerity made against him by 
 
Lord Mansfield. 21 
 
 Junius have long since lost their credit. Indeed, 
 they derived their original authority mainly from 
 the anonymous character of that writer, and his 
 powerful, though vicious rhetoric. De Quincey's 
 theory about Junius is probably correct — that 
 the terror which his attacks carried into the 
 cabinet was owing not so much to what he said 
 as to his evident ability to say a great deal more ; 
 in short, that he was an unknown traitor, possess- 
 ing a dangerous knowledge of state secrets. As- 
 suming that Junius was Sir Philip Francis, as 
 doubtless he was, he was one of the most con- 
 temptible characters in history; for he was an 
 anonymous slanderer, silenced at length by a fat 
 office. He was like some pestilent insect sent to 
 annoy a great victim, and doubtless to effect some 
 good although hidden purpose, but finally brushed 
 off and eventually to be forgotten, while his victim 
 lives on. Indeed, Junius would long since have 
 passed from the recollection of mankind had it not 
 been for the mystery of his personality. Far more 
 trustworthy evidence of the purity of Mansfield's 
 motives was the touching tribute which Erskine, 
 greatest and most fearless of advocates, paid him 
 in the Dean of St. Asaph's case, where he said, 
 " I am one of those who could almost lull myself 
 by these reflections from the apprehension of im- 
 mediate mischief, even from the law of libel laid 
 
22 LoED Mansfield. 
 
 down by your Lordship, if you were always to 
 continue to administer it yourself," etc. 
 
 Mansfield's fame and merits as a statesman are 
 only a little less than as a jurist. His example 
 has always been the first cited to refute the idea 
 that lawyers do not succeed as legislators. He 
 was for years the leader of the government in the 
 House of Oommons in opposition to Chatham, 
 and by all contemporary evidence he was an op- 
 ponent not unworthy of that great man. "Walpole 
 tells us that these two were the greatest orators 
 in parliament. It must be confessed that here, 
 too, Mansfield was not in advance, nor even 
 abreast, of his age, for he was an earnest and con- 
 sistent opponent of the cause of American liberty, 
 and a strenuous advocate of the fallacy of virtual 
 representation. In this controversy, however, he 
 ever displayed a candid and magnanimous spirit. 
 But it is absolutely pleasant to find something to 
 extenuate in such a character as his, and on this 
 point American lawyers can well be magnani- 
 mous. He distinguished himself by his noble 
 pleas in favor of religious toleration, and thereby 
 earned as large a debt from posterity as Chatham 
 has earned from America. Not always display- 
 ing the greatest moral courage in parliament, it 
 must still be recollected that he always stood on 
 the defensive, and practically alone. There Avere 
 hours when the English troops grew faint-hearted 
 
LoED Mansfield. 23 
 
 at "Waterloo. So we are not surprised to find 
 Mansfield once or twice quailing before the ter- 
 I'ible attacks of Chatham and Camden. Lord 
 Campbell justly observes : " If td the great qual- 
 ities which he actually possessed he had added the 
 boldness of Chatham, and the friendly enthu- 
 siasm of Camden, he would have been too per- 
 fect for human nature." But in the end his 
 calmness and dignity secured him the respect, if 
 not the assent, even of his enemies. Wben it came 
 to extremity his moral courage was magnificent, 
 for during the Gordon riots, and the threatened 
 attack upon the House of Lords, he preserved his 
 equanimity even when deserted by all his brother 
 peers, and, at the age of seventy -six, drank his cup 
 of tea alone and drove calmly to his house, which, 
 with his valuable library, was next day destroyed 
 by the mob. In his celebrated judgment revers- 
 ing the outlawry of Wilkes, he exhibited his 
 moral courage by his address to the public, refer- 
 ring to the anonymous letters and public threats 
 which he had received. Let us write these words 
 in letters of gold : "I will do my duty unawed. 
 What am I to fear ? " " The lies of calumny carry 
 no terror to me. I trust that my temper of mind, 
 and the color and conduct of my life, have given 
 me a suit of armor against these arrows." " I 
 honor the king and respect the people ; but many 
 things acquired by the favor of either are, in my 
 
24 LoED Mansfield. 
 
 account, objects not worth ambition. I wish pop- 
 ularity, but it is that popularity which follows, 
 not that which is run after ; it is that popularity 
 which, sooner ot later, never fails to do justice to 
 the pursuit of noble ends by noble means. I will 
 not do that which my conscience tells me is wrong 
 upon this occasion to gain the huzzas of thousands, 
 or the daily praise of all the papers which come 
 from the press ; I will not avoid doing what I 
 think is right, though it should draw on me the 
 whole artillery of libels, all that falsehood and 
 malice can invent, or the credulity of a deluded 
 populace can swallow. I can say, with a great 
 magistrate, upon an occasion and under circum- 
 stances not unlike, ' Ego hoc animo semper f ui, 
 ut invidiam virtute partam, gloriam, non invidiam 
 putarem.' " It required true moral courage to 
 speak these words ; they were " heard in reveren- 
 tial silence," and will be remembered and believed 
 when Junius is forgotten. 
 
 Of Mansfield's oratory and style there has ever 
 been but one opinion. In the judicial and sena- 
 torial manner of speaking he is conceded to have 
 had no equal in modern times. His eloquence 
 mingled persuasion with manly reason, and car- 
 ried conviction from which, in cooler moments, 
 the auditor never recoiled. Oowper says of him : 
 " He was at that time wonderfully handsome, and 
 would expound the most mysterious intricacies of 
 
LoED Mansfield. 25 
 
 the law, or recapitulate both matter and? evidence 
 of a cause as long as from here to Eartham with 
 an intelligent smile on his features that bespoke 
 plainly the perfect ease with which he did it. 
 The most abstruse studies, I believe, never cost 
 him any. labor." 
 
 Never rising to the sublime heights of Chatham 
 and Erskine, he produced, more lasting effects 
 than either, and men came to believe of him, as 
 he said of Hardwicke, that when he spoke, the 
 voice of wisdom herself was heard. The most 
 exquisite of the countless tributes to his eloquence 
 is that of Cowper, on the destruction of his house 
 and library by the rioters : 
 
 " Wlien wit and genius meet tlieir doom, 
 In all-devouring flame, 
 They tell us of the fate of Roiqe, 
 And bid u^ fear the same. 
 
 O'er Murray's loss the Muses wept ; 
 
 They felt the rude alarm ; 
 Tet blessed tlie guardian care that kept 
 
 His sacred head from harm. 
 
 Tliere memory, like the bee that's fed 
 
 Prom Flora's balmy store. 
 The quintessence of all he read 
 
 Had treasured up before. 
 
 The lawless herd, with fury blind, 
 
 Have done him cruel wrong : 
 The flowers are gone ; but still we find 
 
 The honey on his tongue." 
 
 Of his wit, pleasantry and classic learning a 
 volume might be written. His wit, unlike the 
 4 
 
26 LoED Mansfield. 
 
 savage jfests of Thurlow and the unsparing sar- 
 casm of Ellenborough, was generally of the kind 
 that hit without wounding. "While business was 
 transacted before him with a dispatch and cer- 
 tainty never before nor since attained, his consid- 
 eration and fairness rendered it delightful for the 
 bar. 
 
 Lord Campbell, in a desperate endeavor to find 
 some fault with Mansfield's character, and lest, as 
 he confesses, he may be supposed " to have de- 
 generated into an indiscrimin^e panegyrist of his 
 hero," accuses him of a "want of heart." It 
 must be conceded that his passions were cool. 
 He certainly did not wear his heart on his sleeve. 
 Much of this was perhaps owing to his childless 
 life. He was distinguished for justice and mag- 
 nanimity rather than for effusive affection. In 
 the man who refused the proffered indemnity of 
 the government for the destruction of his prop- 
 erty by the mob, we may excuse the absence of 
 affectionate demonstration. Yet his friendship 
 for Pope, and his ready praise of others, and his 
 favorite toast, "old books and young friends," do 
 not indicate a selfish or reserved affection. Lord 
 Campbell lays great stress on the fact that he never 
 revisited his native land. Yet he may have re- 
 visited it in his dreams, and often looked forward 
 to the day when he might again stand upon the 
 banks of Tay, and view " his name, carved half a 
 
LoED Majstsfield. 27 
 
 century before, with his own hand, on the walls 
 of the school-house at Perth." Such arguments 
 only demonstrate how hard-pushed an adverse 
 critic must be in reviewing the character of 
 Mansfield, which has elicited the unstinted praise 
 of such an advocate as Erskine, such a moralist 
 as Dr. Johnson, such divines as Hurd and ]!^ewton, 
 ■ such a jurist as Story. Let his native land feel 
 proud of her wandering son, and write his name, 
 the greatest of the chief-justices, with those of 
 her other progeny, Eldon, the greatest of the 
 chancellors, and Erskine, the greatest of advo- 
 cates. 
 
 The character of this greatest of jurists is one 
 on which we love to dwell. It seems to us, so far 
 as is possible to human nature, to have been per- 
 fect. There were some shades, but no stains, upon 
 it. The lapse of time but serves to enhance its 
 brilliancy. The iconoclasm of modern criticism 
 has not shattered a single feature. It makes no 
 claim upon our pity, it gives us little room for the 
 exercise of our charity, it asks for no allowance on 
 the score of its weakness. Lord Campbell justly 
 says : " In his own life-time, and after he had only 
 a few years worn his ermine, he acquired the 
 designation by which he was afterward known, 
 and by which he will be called when, five hundred 
 years hence, his tomb is shown in "Westminster 
 A})\)ej — that of ' the great Lord Mansfield.' " He 
 
28 Lord Mansfield. 
 
 shines in the galaxy of British lawyers, no bale- 
 ful star, no erratic comet, no transient meteor ; 
 but spherical, fair, and luminous, without eclipse 
 or divergence, will shed his beneficent light upon 
 the nations as long as human institutions shall 
 last. 
 
 " And after a long barren interval, 
 Came Mansfield, wiser, greater than they all. 
 Oh, could my muse breathe an immortal lay. 
 Her humble tribute would she gladly pay 
 To him, the virtuous and enlightened sage, 
 The glory of his country and his age. 
 But ah ! she feels, thus daring to aspire. 
 Her talents sink beneath her proud desire, 
 And in despair unstrings her trembling lyre ; 
 Conscious already that recording fame 
 Has stamped with immortality his name." 
 
KENTON. 
 
 THE subject of this sketch was a compound 
 of contrary characteristics. He was deeply 
 learned in the law, and profoundly ignorant of 
 every thing outside of it ; of the loftiest integrity 
 and scorn of wrong, yet guilty of frequent prac- 
 tical inj astice ; of unaffected piety, yet sometimes 
 approaching profanity in his coarse license of 
 speech; of despotic and irascible temper, yet 
 melted to tears by the occasional petulance of 
 others; uncouth in address and clumsy and ob- 
 scure in rhetoric, but never failing to enforce his 
 poiats by an overwhelming directness ; utterly 
 destitute of wit and imagination, yet keenly ap- 
 preciating them in his favorite Erskine ; it is only 
 for his vigorous impoliteness, his slovenliness, and 
 his parsimony, that I can discover in his charac- 
 ter no counterpoise in kind. 
 
 He was a Welshman, which may account for 
 an irascibility that seems common to that race. 
 The necessity for learning and pronouncing the 
 Welsh language may reasonably be imagined 
 sufficient to stamp an enduring irritability on the 
 
30 Kenyon. 
 
 character. It is related in the life of Sir Leoline 
 Jenkins, that a French courtier asked him where 
 he was born ; he replied that he was a Cambro- 
 Briton. The Frenchman desiring to hear some 
 of the language of the place, the judge complied 
 bj quoting the "Welsh proverb, " Nid with y bag 
 mae abnabod cyfiyldy," which signifies that the 
 goodness of a woodcock is not to be known by 
 the length of his bill ; a saying as fully applica- 
 ble to lawyers as to woodcock. But Kenyon was 
 proud of his country, and sensitive of her geo- 
 graphical honor. He once applied to Dunning 
 for a frank, and the latter directed the letter 
 " North "Wales, near Chester," which made Ken- 
 yon exceedingly angry. Kenyon was born in 
 1Y32. His early educational advantages were 
 small, l^ot being intended by his father for any 
 thing higher than aij attorney, he acquired but 
 little classical knowledge. In this respect he was 
 worse off than Shakespeare, for he had little Latin 
 and no Greek. "What little Latin he had was 
 very bad, and his vanity of airing it rendered 
 him constantly ridiculous. He was articled to 
 an attorney, with whom he expected a partner- 
 ship, but fortunately for him and the world, terms 
 could not be agreed on, and he came to London 
 and the chief justiceship. While he was in the 
 attorney's oiRce he was guilty of some poetry — 
 another singularity in his character. Happily 
 
Kenyon. 31 
 
 for our amusement a portion of his verses have 
 been preserved. They commence thus : 
 
 " Whilom aa through the distant groves I strayed, 
 And tender pastorals on my flag'let play'd 
 The chirping birds in songs their joy exprest ; 
 All nature in a gay attire was dreat." 
 
 He then eulogizes Sir Watkin Wynn, tlie hero 
 
 of Welshmen : 
 
 "There Watkin stood, firm to Britannia'a cause, 
 Guard of her ancient manners, and her laws, 
 Oh, great, good man ! borne on the wings of fame, 
 Far distant ages shall revere thy name : 
 While Clwyd's streams shall lave the verdant meads, 
 And Snowden's mountains raise their lofty heads ; 
 While goats shall o'er thy hills, Cambria, stray. 
 And day succeed to night, and night to day. 
 So long thy praise, Williams, shall remain 
 Unsullied, free from dark oblivion's chain." 
 
 It is evident from these specimens that Ken- 
 yon was not an inspired bard, and that if he had 
 allowed poetry to monopolize his attention, his 
 praise would have been troubled by the clanking 
 of the aforesaid "dark oblivion's chain." We 
 read that during his student days he was of a 
 'grave and serious deportment, of most correct 
 habits, passionately addicted to the study of the 
 law, and that he despised all amusements, such as 
 dancing, the opera, and the drama. In later life 
 he fell asleep in the first representation of Piz- 
 arro, which provoked Sheridan to say, "Alas, poor 
 man, he fancies himself on the bench ! " His in- 
 timate companions were Dunning and Home 
 Tooke. It is related that when thev dined to- 
 
32 Kenyon. 
 
 gether, as was their constant custom, for seven 
 and one-half pence a -head, Dunning and Tooke 
 ^ would give the waiter a penny each, but Kenyon 
 never more than a half -penny, and seldom more 
 than a promise. 
 
 After being called to the bar in 1761, Kenyon 
 followed the circuit for ten years. In his study 
 and in his waiting for patronage, he acquired a 
 knowledge of law more profound and various 
 than that of any other lawyer of his time. Others 
 excelled in particular departments; his acquire- 
 ments comprehended all. At the age of 39, and 
 when he had been twelve years in the profession, 
 he married his cousin, with whom he lived long 
 and happily. He left a fortune of £200,000. In 
 1781 and 1782, the last two years of his practice 
 at the bar, his fees for cases and opinions alone 
 were respectively 2,360 and 3,020 guineas. Court 
 business came more slowly. His first great case 
 was Lord Pigot's, against Stratton, in which he 
 appeared for the prosecution. In that trial were^ 
 besides himself, Wedderburn, Wallace, Mansfield, 
 Dunning, Arden, Wilson, and Erskine — a very 
 respectable array of counsel, certainly. A, little 
 later he was senior to Erskine in the defense of 
 Lord George Grordon. In 1782 he was appointed 
 attorney-general, and carried confusion to friends, 
 as well as foes, by his unsophisticated persistence 
 in prosecuting public accountants, to compel them 
 
Kenyon. 33 
 
 to pay over to the government the balances which 
 they had been in the habit of retaining and using 
 long after they should have been paid — a custom 
 which corruption, otherwise called courtesy, had 
 long winked at. In 1784 he was appointed master 
 of the rolls, with a baronetcy. Pie recommended 
 the prime minister, Pitt, to insist on the famous 
 Westminster scrutiny directed against Fox. This 
 led the latter to flay him in this fashion : "A third 
 person there is whom I might in reason challenge 
 — a person of a sober demeanor, who, with great 
 diligence and exertion in a very respectable and 
 learned profession, has raised himself to consid- 
 able eminence ; a person who fills one of the first 
 seats of justice in this kingdom, and has long dis- 
 charged the functions of a judge in an inferior, 
 but very honorable, situation. This person, sir, 
 has to-day professed and paraded much upon the 
 impartiality with which he should discharge his 
 conscience in his judicial capacity as a member of 
 parliament in my case. Yet this very person, in- 
 sensible to the rank he maintains, or should main- 
 tain, in this country, abandoning the gravity of 
 his character as a member of the senate, and los- 
 ing sight of the sanctity of his station, both in this 
 house and out of it, even in the very act of deliv- 
 ering a judicial sentence, descends to minute and 
 mean allusions to former politics, comes here 
 stored with the intrigues of the past times, and 
 5 
 
34: Kenyon. 
 
 instead of the venerable language of a good judge 
 and a great lawyer, attempts to entertain the 
 house by quoting, or by misquoting, words sup- 
 posed to have been spoken by me in the heat of 
 former debates, and the violence of contending 
 parties, when my noble friend and I opposed 
 each other. This demure gentleman, sir ; this 
 great lawyer ; this judge of laM^ and equity and 
 the constitution, enlightens this subject, delights 
 and instructs his hearers, by reviving the interest- 
 ing intelligence that when I had the honor of first 
 sitting in this house for Midhurst, I was not full 
 twenty-one years of age, and all this he does for 
 the honorable purpose of sanctifying the high 
 bailiff of "Westminster, and defrauding the elect- 
 ors of their representation in this house." Fox's 
 followers satirized Kenyon in the " Criticisms on 
 the Eolliad," which, named after Eolle, the ob- 
 noxious member from Devon, they dedicated to 
 Kenyon, with a caricatured half-length portrait 
 of him on the title page, representing him like a 
 lion demi-rampant, with a roll of parchment be- 
 tween his paws. After praising him for voting 
 at the Westminster election as the delegate of 
 his coach-horses (he lived in Lincoln's Inn Fields, 
 but voted in right of some stables), the wits of 
 that wicked miscellany sum up his parliamentary 
 misdeeds in the following caustic satire : 
 
 ' How shall the neigWng kind thy deeds requite, 
 Great Yahoo champion of the Hounhuhm's sight ? 
 
Kenton. 35 
 
 may tliey gentle pacing o'er the stones, 
 Witli no rude shook annoy thy battered bones ; 
 But when a statesman in St. Stephen's walls, 
 Thy country claims thee, and the treasury calls, 
 To pour thy splendid bile in bitter tide 
 On hardened sinners who with Fox divide, 
 Then may they, rattling on in jumbling trot, 
 With rage and jolting, make thee doubly hot. 
 Fire thy Welsh blood, inflamed with zeal and leeks, 
 And kindle the red terrors of thy cheeks. 
 Till all thy gathered wrath in furious fit 
 On Rigby bursts — unless he votes with Pitt.' 
 
 Kenyon's decrees as master of the rolls were 
 sometimes overruled, from his pedantic adher- 
 ence to precedents and a rigid construction, but 
 his fidelity and industry were without parallel. 
 
 In 1788 he was ennobled, and on Mansfield's 
 retirement created chief justice of England. In 
 this position his treatment of his ' assQciates was 
 cynical, overbearing and contemptuous. Impa- 
 tient of contradiction, he regarded any dissent 
 from his opinion (which rarely occurred) as a per- 
 sonal affront. He spoke unreservedly of his pre- 
 decessors ; wondered that Holt should descend to 
 petty quibbles to overturn law and justice, and 
 accused Mansfield of talking loosely. In one case, 
 where there was a difference of opinion in the 
 court, he thus went on : "If the present action 
 could not be supported, he had now for twelve 
 years been deceiving the peo,ple of his country. 
 Was he now, when from years, perhaps, the pro- 
 gress of his intellect has been retrograde, to un- 
 say it? Where could he go to hide his head, if 
 
36 Kenyon. 
 
 this should now be recorded otherwise ? What 
 could he say to the people of his country ? " And 
 when his associates overruled him : " Good God ! 
 what injustice have I hitherto been doing !" 
 
 His treatment of the bar was even worse. To 
 all, save Erskine, his manner seems to have been 
 very offensive. To Law, who had unsuccessfully 
 moved for a new trial, he sneered, " "Well, sir, you 
 have aired your brief once more." To Baldwin, 
 who begged him, on the trial of a disputed ac- 
 count, to observe the distinction between two bills, 
 he replied : " If you will give me leave, I think 
 I have just sense enough to comprehend this bill." 
 Complaint being made against Lawless, an hon- 
 orable attorney, of some imputed misconduct, 
 Kenyon, on the ex parte application, after grant- 
 ing the rule to show cause, added, " And let Mr. 
 Lawless be suspended from practicing until the 
 rule is disposed of ." "My lord," exclaimed the 
 attorney, in deep agitation, " I entreat you to re- 
 call that judgment ; the charge is wholly un- 
 founded ; suspension will lead to my ruin ; I have 
 eighty causes now in my office." " So much the 
 worse for your clients who have employed such a 
 man ! " was the reply of this ermined brute. The 
 rule was eventually discharged, but the attorney 
 died of a broken heart. To abolish sham pleas, 
 Kenyon directed attorneys to attend the court, 
 and disclose the reasons for their instructions. 
 
Kenton. 37 
 
 Once in a while Kenyon met his match, and 
 quailed. On the famous trial of Fox against his 
 former companion Home Tooke, the defendant, 
 pleading his own case, started off "with inform- 
 ing the jury that there were only three efficient 
 and necessary parties — the plaintiff, himself, and 
 you, gentlemen of the jury. The judge and the 
 crier of the court attend alike in their respective 
 situations, and they are paid by us for their attend- 
 ance ; we pay them well ; they are hired to be 
 assistants and reporters, but they are not, and 
 they never were, intended to be controllers of our 
 conduct." On being interrupted by the judge, 
 Tooke said : " Sir, if you please, we will settle 
 this question between us now in the outset, that I 
 may not be liable to any more interruptions from 
 you." He then defended himself in his course, 
 concluding, "At my peril I shall proceed, and ex- 
 pect to meet with no further interruption from 
 your lordship." He was not interrupted again. 
 
 In the same speech Tooke made some observa- 
 tions on the source of the judicial tenure, which 
 I commend to the attention of those who are 
 favorable to the selection of judges by appoint- 
 ment : " I do not believe the dependence of the 
 judges on the crown was so great formerly as at 
 present. I believe the judges then were less de- 
 pendent on the crown and more dependent on the 
 people than they are at this hour. The judges 
 
38 Kenton. 
 
 then sat on the bench, knowing that they might 
 be turned down again to plead as common advo- 
 cates at the bar ; and indeed it was no unusual 
 thing in those days to see a counsel at the bar 
 brow-beaten and bullied by a chief justice on the 
 bench, who in a short time after was to change 
 places with the counsel, and to receive himself 
 the same treatment in his turn ; and character and 
 reputation were of more consequence to the judges 
 then than they are now. They are now com- 
 pletely and forever independent of the people, 
 and have eveiy thing to hope for for themselves 
 and their families from the crown." I do not see 
 how any republican, after reading the lives of 
 such men as Eldon and Ellenborough, can advo- 
 cate the choice of judges by appointment. A pe- 
 rusal of such biographies must convince one that 
 even the wisest and purest men are safely en- 
 trusted with only a measured degree of irrespon- 
 sible power. 
 J As an example of Kenyon's intemperance to- 
 ward suitors, I may cite. General Gunning's case, 
 in which he told the jury that the defendant Gun- 
 ning was " an abominable, hoary, degraded crea- 
 ture." 
 
 Kenyon's morahty was of the loftiest but nar- 
 rowest kind. He encouraged actions of crim. 
 con., and under his rule verdicts of £5,000 and 
 £10,000 were not unusual. He resolutely set his 
 
Kenyon. 39 
 
 face against gambling, and threatened to prosecute 
 those of the nobility who indulged in it. " They 
 thinli they are too great for the law," said this 
 amiable judge ; " though they should be the first 
 ladies in the land, they shall certainly exhibit 
 themselves on the pillory." Gillray published 
 a caricature, entitled the " Exaltation of Faro's 
 daughters," in which Ladies Buckinghamshire 
 and Archer are represented side by side in the 
 pillory, upon which is a placard, inscribed "Cure 
 for Gambling, published by Lord Kenyon in the 
 Court of King's Bench, on May 9th, 1Y96." An 
 imitation of this print appeared shortly after, en- 
 titled " Cocking the Greeks," in which the same 
 ladies were similarly exposed, the short and plump 
 Lady Buckinghamshire being depicted as obliged 
 to stand tip- toe on her own faro-bank box to raise 
 her neck to her taller companion's level. Lord 
 Kenyon, in the character of public crier, ringing 
 his bell, proclaims, " Oh yes ! oh yes ! this is to 
 give notice that several silly women, in the par- 
 ishes of St. Giles, St. James and St. George, have 
 caused much uneasiness and distress in families, 
 by keeping bad houses, late hours, and by shuf- 
 fling and cutting have obtained divers valuable 
 articles; whoever will bring before me," etc. His 
 efforts to abolish the crime of dueling were more 
 dignified and commendable. He also punished 
 the libelers with a vigorous lash. His utter want 
 
40 Kenyon. 
 
 of liumor was amusingly evinced in the libel 
 case of Lord Lonsdale. The libel complained of 
 was as follows : " The printers are much per- 
 plexed about the likeness of the devil. To obviate 
 this difficidty concerning his infernal majesty, the 
 humorous Peter Pindar has recommended to his 
 friend Opie the countenance of Lord Lonsdale." 
 Erskine prefaced his argument for the defense by 
 remarking that the writer made no malicious in- 
 sinuation, for he did not recommend his lordship 
 to be painted with horns. Kenyon .hastily inter- 
 rupted him : " The tongue of malice has never 
 said that." It is unnecessary, to follow him in his 
 oppressive rulings of the law in these cases, to 
 aid the cause of tyranny and the suppression of 
 free speech. 
 
 It will be a comparative relief to turn from 
 these considerations, and look for a moment at 
 two less serious offenses — his parsimony and his 
 bad Latin. In regard to the first, his idea of 
 money is inferable from his remarks in a will case 
 in which, arguing for the right of testamentary 
 disposition, he said : " If they were disappointed 
 in that " — the right to leave their money as they 
 please — " the great ctnd main pursuit of men 
 in society was disappointed." " "Why do you men- 
 tion his spit," said Jekyll, " when you know noth- 
 ing turns upon that ! " In relation to his want of 
 hospitality, the same bitter wag said : " It is Lent 
 
Kenyon. 41 
 
 all the year round in his kitchen, and passion 
 week in his parlor." His penuriousuess and his 
 bad Latin were hit oif by Ellenborough. After 
 Kenyon's death, a hatchment was put on his 
 house, with the motto painted by mistake. Mors 
 janua vita. Eldon insisted that Kenyon so or- 
 dered it to save the extra expense of the final diph- 
 thong. In the house of lords he talked about" 
 flagrante hello, for pendente hello. He was con- 
 tinually lugging in classical quotations without re- 
 gard to their appositeness, or care or knowledge 
 of their correctness. When he wished to express 
 the idea stare decisis, he would say stare super 
 a/ntiquas vias. Another, favorite was melius est 
 peter e fontes quam sectari ri/vos. He would in- 
 form the bar that " the court will take time to 
 consider this case 'propter difficultatemj' " " Go 
 to chancery," said he to an importunate suitor, 
 '■'■ ahi in maZem rem." "Taffy," said Thurlow 
 (he always called him Taffy), " when did you first 
 think the court of chancery was such a '•mala 
 res ? ' I remember that you made a very good 
 thins of it." . To illustrate the conclusiveness of 
 some fact, he said : " It is as plain as the noses on 
 your faces — ' latet a/nguis in heria.' " In 
 '' "Westminster Hall," a miscellany of legal anec- 
 dote, he is scarcely caricatured when represented 
 as saying to a jury : " Having thus discharged 
 your consciences, gentlemen, you may retire to 
 6 
 
42 Kenyon. 
 
 jonr homes in peace, with the delightful con- 
 sciousness of having performed your duties well, 
 and may lay your heads upon your pillows and 
 say, ' aut Coesar aut nullus.'' " 
 
 His choice of English was hardly more judi- 
 cious, and mixed metaphors disligured his speech. 
 For instance : " The allegation is as far from the 
 truth ' as old Bolerium from the l^orthern Main,' 
 a line I have heard or met with Gods know 
 wheer " — (his mode of pronouncing where). 
 " This is the last hair in the tail of procrastina- 
 tion." "If an individual can ireah down any of 
 those safeguards, which the constitution has so 
 wisely and so cautiously erected, by poisoning 
 the mind of the jury when they are called upon 
 to decide, he will stab the administration of jus- 
 tice in its most vital parts." The estimate which 
 his contemporaries put on his learning is evi- 
 denced by Coleridge's apochryphal story that he 
 referred to the emperor Julian as " so celebrated 
 for every christian virtue that he was called 
 Julian the Apostle ! " Add to this that his elo- 
 cution was extremely ungraceful and indistinct, 
 and his attire slovenly and mean, and we think 
 he must have been a pretty figure for chief jus- 
 tice of England ! 
 
 What, then, was the secret of the success of 
 this man, set to succeed the learned, the courtly, 
 the persuasive Mansfield ? ,, In a word, it was 
 
Kenyon. 43 
 
 this : he Miew the law, and honestly and fear- 
 lessly administered it. "When Erskine and Min- 
 gay were in high debate, he settled the contro- 
 versy in his own rough way : " This is a contest, 
 gentlemen, for victory, and not for justice ; but 
 I have made up my mind and will not be moved 
 from it, though assailed by rudeness on the one 
 hand and flattery on the other." This was the 
 key-note of his entire course. He never missed 
 attending church in twenty-six years. He was 
 an uxorious husband and a fond father. He re- 
 vered the jury system almost to adulation. These 
 last three traits were sufficient to endear him to 
 the British public, even if he had not been an ac- 
 complished lawyer. I have dwelt on his foibles 
 and shortcomings becaiise they are not found in 
 the books. His learning adorns every page of 
 the reports, and has left the marks of its forming 
 hand on a vast quantity of our law. 
 
THUELOW. 
 
 IT is a singular circumstance, that two men, so 
 similar in manners and intellectual gifts as 
 Edward Thurlow and Samuel Jolmson, should 
 have lived contemporaneously in the same coun- 
 try ; still more singular that they should have en- 
 tertained a mutual admiration ; and most singular 
 of all that they should have acquired, by sheer 
 dogmatic force of character, so despotic an influ- 
 ence over their contemporaries. Both men were 
 intellectual bullies, who seared their antagonists, 
 by brow-beating and vociferation, into slavish and 
 iincomplaining submission. Both were the tradi- 
 tional John Bull, with all the bellowing, and the 
 pawing, and the reckless, blind, unreasoning en- 
 ergy of that respectable animal. Thurlow has 
 been compared to the lion and to the tiger ; he had 
 the roar of the one and the ferocity of the other, 
 but he was more like the bull than like either. 
 The points of resemblance between him and 
 Johnson are too patent to dwell upon • — dress, 
 voice, dogmatic assertion, robust abuse, narrow 
 intolerance, sycophantic toryism ; but they had 
 one important point of difference' — Johnson had 
 
Thuelow. 45 
 
 a conscience, Thnrlow had none ; Johnson was a 
 moralist, and his influence was good, Thurlow was 
 an immoralist — i{ we may coin the word — and 
 his iniiuence was degrading. Tlie influence of 
 both has mainly passed away. Nobody any longer ■ 
 reads Johnson, except in the unapproachable diary 
 of his toady, Boswell, and nobody thinks of 
 Thurlow except as an example to be shunned. 
 Thurlow, indeed, lost his influence before he died ; 
 men found him out when he descended from the 
 woolsack and took his seat on an equality with 
 others, and ceased to be afraid of him. He re- 
 minds us of Thackeray's caricature of Ludovicus 
 Hex ; first, there was Ludovicus, a poor, bare, im- 
 potent-looking figure ; then there was Hex, a big, 
 empty wig, gorgeous clothes, sceptre, throne, etc.; 
 and the two put together made the awful Ludovi- 
 cus Hex. 
 
 Thurlow's career was one of imposition from 
 the outset, and displays a remarkable instance of 
 a great nation being subdued and overawed by 
 manner and pretense. He pretended to idle at 
 college, but when any important examination ap- 
 proached, he " sported his oak," and came out 
 with credit. Here he laid the foundation of that 
 classical learning which was one of the very few 
 alleviating traits in his character. But his profli- 
 gacy and insubordination were so great that he 
 was obliged to leave the university without a de- 
 
46 Thuelow. 
 
 gree. Then, again, when a stvident at law, he 
 affected the character of an idler, shutting himself 
 up, when the necessity for apphcation arose, and 
 cramming for the occasion. He affected his rude 
 manners and his eccentric old-fashioned dress. He 
 long affected indifference in politics, but when he 
 made a choice, he was careful to range himself on 
 the side in command of the offices. He affected 
 to be a champion of virtue, but was scandalously 
 disregardful of its fundamental precepts. He af- 
 fected a lofty independence, but his vanity was 
 not proof against the flatteries of a fourth-rate 
 poet, Haley. He was true to but one cause, and 
 that was his own interest, and he was consistent 
 in but one line of conduct, and that was his vio- 
 lent and scornful way of promoting that interest. 
 And yet this " great imitator of Garagantua " — 
 as Lord Campbell calls him — exercised an influ- 
 ence scarcely inferior to that of Pitt, and, in the 
 language of May, in his Constitutional History, 
 " made the House of Lords his plaything." 
 
 As a statesman, Thurlow was an unmitigated 
 tory. He advocated the subjugation of the 
 American colonies, not with the moderation and 
 charitable spirit of Mansfleld, but with virulence 
 and hatred, even going so far as hnpliedly to ap- 
 pi-ove the proposed employment of the native 
 savage tribes. in the war. He deemed the aboli- 
 tion of African slavery an unwise and Utopian 
 
Thuelow. 47 
 
 scheme. He was the defender of "Warren Hastings 
 through thick and thin. He despised the jury 
 system. He resisted the abolition of imprison- 
 ment for debt. He opposed the extension of 
 copyright. He objected to the restoration of the 
 Scottish estates, forfeited by the rebeUion of 1Y45, 
 to the heirs of the attainted owners. He strug- 
 gled against the disfranchisement of the corrupt 
 Cricldade electors. With all these narrow and 
 shortsighted notions, it is difficult to reconcile his 
 comparatively liberal views on the Eoman Catho- 
 lic legislation, except on the ground that he con- 
 temned aU religions. 
 
 As a judge, Thurlow has little fame for learn- 
 ing. This was generally furnished to him by his 
 " provider," Hargrave. He had neither patience 
 nor diligence. His native good sense, however, 
 frequently stood him in good stead, and his gen- 
 eral contempt and hatred of everybody kept him 
 free from the suspicion of corruption or partiality. 
 The spirit of the man is well illustrated by two of 
 his decisions, namely, one in which he held, that 
 a bond given by an incumbent to the patron of a 
 living for resigning on request, is lawful, — which 
 was afterward reversed by the lords ; — and the 
 other, in which he held, that a condition annexed 
 to a legacy, that the legatee should not marry 
 without the consent of her mother, is valid. One 
 would suppose that a man of Thurlow's tempera- 
 ment would ha^^e dispatched business, but great 
 
4:8 Thtjelow. 
 
 complaints wei'e made of his indolence and indif- 
 ference. True, Horace Walpole, speaking of a 
 decree pronounced in his favor by the master of 
 the rolls, " with epigrammatic dispatch," says, 
 " surely the whip of the new driver, Lord Thur- 
 low, has pervaded all the broad wheels of the law, 
 and set them galloping," — a remarkable com- 
 pound of metaphors, — but his case seems to have 
 been an exception. Thurlow preferred politics to 
 law ; indeed he used the latter only as a stepping- 
 stone to his political preferments. In short, his 
 character, both as a judge and a statesman, is well 
 summed up by Lord Campbell, who says : " Hav- 
 ing been at the head of the law in this country 
 for near thirteen years, he never issued an order 
 to correct any of the abuses of his own court, 
 and he never brought forward in Parliament 
 any measure to improve the administration of 
 justice." 
 
 Thurlow's manner doubtless caused his oratory 
 to be greatly overrated. Gibbon speaks of his 
 " majestic sense," and this was probably the chief 
 characteristic of his speeches. Unquestionably, 
 he was a ready and forcible debater. He pro- 
 duced a profound impression in Parliament, and 
 Mathias says of him and Loughborough : " They 
 separated the la-^yer from the statesman. It was 
 a proud day for the bar at that period ; for never 
 before that day were such irresistible overbearing 
 
Thuelow. 49 
 
 powers and talents displayed by the ©fficial de- 
 fenders of a minister : 
 
 Hos mirabantur Athense 
 Torrentes, pleni et moderautea frseua theatri ! 
 
 Lord JSTorth, indeed, when he appointed Thtirlow 
 and Wedderburne (his) attorney and,solicitor-gen- 
 eral, meant no more than to give spirit, eloquence, 
 and argument to his measures ; but in efEect he 
 hung a mill-stone on the necks of all their success- 
 ors." The few specimens of Thurlow's oratory, 
 that have been preserved fill us with surprise that 
 it could have been so influential, and confirm us 
 in our idea that he owed every thing to his awful 
 . appearance and bearing. Such was the case in 
 respect to his speech as presiding officer on the 
 arraignment of Hastings. Madame d' Arblay says 
 of it : " This speech, uttered in a calm, equal, sol- 
 emn manner, and in a voice mellow and penetrat- 
 ing, with eyes keen and black, yet softened into 
 some degree of tenderness while fastened full 
 upon the prisoner — this speech, its occasion, its 
 poi'tent, and its object, had an effect upon every 
 hearer of producing the most respectful attention, 
 and out of the committee box, at least, the strong- 
 est emotions in the cause of Mr. Hastings." The 
 only speech of his which posterity will care to 
 read, and the one which presents him at his best 
 in every point of view, is his celebrated reply to 
 the Duke of Grafton in the House of Lords, when 
 the latter sneered at his obscure birth, and even 
 
60 Thuelow. 
 
 that owed-eveiy thing to his unmatched assump- 
 tion and arrogance. When Thurlow, in that voice 
 of thunder and with that front of Jove, exclaimed : 
 " As a man — I am at this moment as respecta- 
 ble, — I beg leave to add, — !• am at this moment 
 as much respected — as the proudest peer I now 
 look down upon ;" — • although that proud assem- 
 bly then and always afterward quailed and shrank 
 before him, yet they must have known, as we 
 know, that the orator was uttering a colossal false- 
 hood. He was then well known, as now, to be 
 scandalously profane and licentious, selfish, ambi- 
 tious, and time-serving, -and yet none dared resist 
 his assumption. It was just as it was when Sam. 
 Johnson put down an antagonist with some fero- 
 ciously-uttered puerility — if his weapon missed 
 fire, he knocked down his enemy with the :butt. 
 Indeed, this celebrated speech is an eminent ex- 
 ample of the power of Satan to rebuke sin. The 
 orator's gigantic impudence was still more offen- 
 sively exhibited in his advocacy of the very next 
 measure brought forward. Bishop Barrington's 
 bill for the more effectual discouragement of the 
 crime of adultery^ So perfectly shameless was 
 he in regard to this measure — lecturing the peers 
 on the " abominable practice," and the importance 
 of pi-eserving the purity of the blood of their de- 
 scendants, when at that very moment, although 
 keeper of the king's conscience and first magis- 
 
Thuelow. 61 
 
 trate of the kingdom, he was openly hving with 
 his mistress and bastards — that Lord Campbell 
 conjectures that he meant it as a grim joke. But 
 cei'tainly there is no more evidence that he was in 
 jest than in his reply to Grafton. The truth is, the 
 man was utterly destitute of moral sense, and so 
 was the era which succumbed to his usurpation of 
 authority. As the nation for years was in a panic 
 terror at the apparition of the gray overcoat and 
 cocked hat of the great Napoleon across the chan- 
 nel, so Thurlow's big voice and big wig and sav- 
 age frown overawed and quelled it. 
 
 Fox said no man could be so wise as Thurlow 
 looked. We have his jjortrait accurately sketched 
 for us by several hands. His old-fashioned coat 
 and ruffles, his big brown wig with three rows of 
 Claris, his piercing black eyes, his shaggy white 
 eye-brows, and his deep sonorous voice, always 
 filled the uninitiated with awe. Lord Campbell 
 thus describes him : "At last there walked 
 in supported by a staff, a figure bent with age, 
 dressed in an old-fashioned gray coat, with 
 breeches and gaiters of the same stuff — a brown 
 scratch wig — tremendous white bushy eye-brows 
 — eyes still sparkling with intelligence — dread- 
 ful crows'-feet round them — ■ very deep lines in his 
 countenance — and shriveled complexion of a sal- 
 low hue." Peter Pinda/r depicts him as 
 
 " bony and big. 
 With a voice like the voice of a Stentor, 
 His old phiz in a bushel of wig." 
 
52 Ti-iuBLow. 
 
 Of his enormous hat — the only one of the 
 fashion in the kingdom — a f nnny story is told by 
 G-renville, as taking place when Thurlow was os- 
 cillating in his loyalty between the king, whose 
 wits were apparently going out, and the prince 
 who was to be his successor. He had been attend- 
 ing a state council at Windsor, and when he was 
 ready to take his leave, his hat was not to be found. 
 At length a page brought it, and handed it to him 
 in presence of all the ministers, saying aloud, 
 " My lord, I found it in the closet of his royal 
 highness, the Prince of Wales." For once, it is 
 said, Thurlow was confused. His predicament 
 was almost as embarrassing as that of the abbess, 
 in Boccaccio's tale, who, being hastily summoned, 
 donned a pair of breeches in place of her custom- 
 ary head-gear, and his virtue and his piety were 
 as sincere as hers. Horace Walpole speaks of see- 
 ing Thurlow at the representation of an opera 
 written by Lady Craven. He says : " The Chan- 
 cellor was there en titre d'office, not as head of 
 the law, but as Cicisbeo to the authoress, — his 
 countenance is so villainous that he looked more 
 like assassin to the Husband. Lady Harcourt 
 said he wanted nothing but a red coat and a black 
 wig to resemble the murderous Macbeth." 
 
 One of the most ludicrous traits of Thurlow's 
 character was his loyalty. This has always been 
 a distinguishing characteristic of the English 
 
Thuelow. 53 
 
 judges, but it has generally been a disinterested 
 and laudable sentiment, answering to wbat Amer- 
 icans describe as patriotism. But in Thurlow it 
 was a disgraceful attribute, exhibited only to 
 mark his selfishness, and yet was so anomalous 
 and extravagant as to be amusing. So when, 
 with tears in his eyes, he exclaimed, " If ever I 
 forget my king, may my God forget me," Wilkes 
 replied, with one of his diabolical leers, " Forget 
 
 you ! he'll see you d -d first ! " Thurlow was 
 
 the greatest of "rats," and having prematurely 
 left his ship when he supposed it sinking, he 
 vainly struggled to crawl back. So strong was 
 his love of place and so bad Jiis temper, that 
 Horace Walpole wrote : " The papers pretend the 
 Chancellor is out of humor and will resign ; the 
 first may be true, the latter probably not." 
 
 Thurlow's wit was of the most savage descrip- 
 tion. He seems rarely to have exhibited it save 
 as a vent for his ill-humor. Having no feeling 
 himself, he spared nobody's feelings. It is almost 
 impossible to find a good-natured jest recorded of 
 him. Consequently, we do not find that he was 
 held by the bar either in affection or respect. It 
 is related that when he was going down from the 
 bench, on his dismissal from ofiice, he took 
 " French leave," omitting the customary address 
 to the bar ; whereupon one of the lawyers ob- 
 served, sotto voce, "he might at least have said 
 
54 Thuelow. 
 
 ' d — mn you ! ' " Upon which Thurlow re-as- 
 cended the bench, and said a few words of fare- 
 well. At all events, he was impartial in his bad 
 manners, and bestowed them upon the laity as 
 well as the bar. Thus, being invited to dinner 
 by a gentleman who apologized for the poor 
 quality of his wine, he growled out, " I have 
 tasted better." 
 
 Thurlow furnished a rich repast for the carica- 
 turists and satirists of his time. His omnipotent 
 influence in affairs is illustrated by Grilray, in a 
 print entitled " Market Day — every man has his 
 price," in which the supporters of the ministry 
 are depicted as horned cattle exposed for sale at 
 Smithfield, and Thurlow as state farmer is repre- 
 sented as the principal purchaser, with a big purse 
 in one hand and the sceptre as a cane in the other. 
 The same artist satirizes his championship of 
 Hastings by a caricature entitled "Blood on 
 Thunder fording the Red Sea," where the Lord 
 Chancellor is wading through a sea of blood, 
 strewed with the bodies of mangled Indians, with 
 Hastings on his shoulders, dressed like an In- 
 dian prince, with his bags of rupees under his 
 arms. In another caricature on the same sub- 
 ject, entitled "A Dish of Mutton Chops," the 
 king's head is served up on a dish at a table 
 around which are seated Pitt, Hastings, and 
 Thurlow ; the first is eating the tongue, the sec- 
 
Thtjelow. 56 
 
 ond is picking out the eyes, and the latter is de- 
 vouring the brains. In Gilray's parody on 
 Fuseli's picture "The Weird Sisters," the co- 
 quetry of Thurlow on the regency question is 
 cleverly taken off ; — Pitt, Dundas, and Thurlow 
 are represented as contemplating the moon, 
 which shows on its bright side the face of the 
 queen, and on the obscured side that of the king, 
 then suflFering from mental darkness. Again, the 
 Chancellor's downfall is depicted in " The Fall of 
 the Wolsey of the "Woolsack," and in "Sin, 
 Death, and the Devil," a parody on the scene 
 from Milton, where Sin (the queen) rushes in to 
 separate Death (Pitt) and the Devil, who exhibits 
 the frowning countenance of Thurlow. Mathias 
 in " The Pursuits of Literature " most cleverly 
 likens Thurlow in his unavailing struggle against 
 Pitt for the favor of his successor Loughborough, 
 to Polyphemus in the mythological tale of the 
 loves of that Cyclops and the shepherd Acis for 
 the nymph Galatea, which story was set to music 
 by Handel : 
 
 " Nay, Thurk>w once ('tis said) could sing or swear 
 Like Polypneme. ' cannot, cannot bear ; ' 
 For all ! presumptaous Acis wrests the prize. 
 And ravishes the nymph before his eyes." 
 
 But the severest and cleverest satire ,upon him 
 was that of the EoUiad, where he professes to re- 
 cite an "Irregular Ode" to show his fitness for 
 
56 Thublow. 
 
 the vacant office of Poet Laureat. The first 
 stanza is as follows : 
 
 " Damnation seize ye all ! 
 Who pufF, who thrum, who bawl and squall ! 
 Fir'd with ambitious hopes, in vain. 
 The wreath that blooms for other brows, to gain. 
 
 Is Thurlow yet so little known t 
 
 By ■ ■ I swore, while George shall reign, 
 
 The seals, in spite of changes, to retain, 
 
 Nor quit the woolsack till he quits the throne I 
 
 And now, the bays for life to wea r. 
 
 Once more with mightier oaths, by I swear I 
 
 Bend my black brows that keep the peers in awe. 
 Shake my full-bottom wig, and give the nod of law." 
 
 And the ode winds up with a perfect tornado, or 
 rather flood, of d — mns. Peter Pindar, also, 
 enumerating those who participated in the public 
 thanksgiving at St. Paul's on the king's recov- 
 ery, speaks of 
 
 " A great law chief, whom Qod nor demon scares, 
 Compell'd to kneel and pray, who snuore his prayers," 
 
 and describes the devil as standing behind and 
 patting the angry lawyer on the shoulder. Bm-ke 
 brought down the House of Commons, on the 
 trial of Hastings, in commenting on the latter's 
 arrest of a rajah at his hour of devotions, by im- 
 agining the lord chancellor's arrest at his devo- 
 tions, and his sorrows at the prayers he had lost. 
 His matchless impudence was celebrated by Sher- 
 idan in his imaginary cast of the character in Ben 
 Johnson's Alchemist, in which he assigned to 
 Thurlow the part of Face. 
 
Thuelow. 57 
 
 On the other hand, the poet Cowper, his fellow 
 stiident-at-law and early companion, paid a touch- 
 ing tribute to the merits with which his recollec- 
 tion of their boyish intimacy invested him, in 
 some verses on Ris elevation to the woolsack. But 
 the resrdt showed that this sweet poet, who sung 
 of his old fi'iend : 
 
 " Discernment, eloquence, and grace 
 Proclaim him born to sway," 
 
 was not so acciirate as the satirist who described 
 him as 
 
 " The rugged Thurlow, who with sullen scowl, 
 In surly mood at friend and foe will growl ;" 
 
 " A mastiff guarding on a market day 
 With snarling vigilance his master's tray;" 
 
 for the subject of his verses took no notice of 
 them nor of the writer ; they were pearls thrown 
 before swine. It must in justice be confessed, 
 however, that this seems to have been an excep- 
 tion to Thurlow's ordinary conduct, for he inter- 
 ceded with the crown, although vainly, for an 
 increase of Johnson's pension, to enable him to 
 travel for his health. That he had no genuine 
 affection for literature, however, is shown by his 
 treatment of the destitute poet, Crabbe, who sent 
 him some verses, and received an answer that his 
 lordship's " avocations did not leave him leisure 
 to read verses." To this the poet responded in a 
 
58 Thuelow. 
 
 vigorous and manly strain, but no notice was taken 
 of him. Afterward, Burke and Reynolds having 
 interceded, he invited the poet to breakfast and 
 gave him £100. He could not confer a favor 
 spontaneously or gracefully, nor refuse one civilly. 
 So when a deputation of Presbyterians asked him 
 to assist in a repeal of the statutes disqualifying 
 them from holding civil offices, he bluntly replied : 
 " Why, gentlemen, if your old sour religion had 
 been the estabhshment, I might have complied ; 
 but as it is not, you cannot expect me to accede 
 to your request." Lord Campbell says " they re- 
 tired smiling," — probably because they had come 
 off so well. But Campbell's life of Thurlow is 
 written throughout in a strain of apology. The 
 biographer seems never to have recovered from 
 the awe which came over him on his first sight of 
 the great man, of which he gives us an impressive 
 account. In regard to Thuj-low's irregular do- 
 mestic relations, he says : " I must remind the 
 reader that every man is charitably to be judged 
 by the standard of morality which prevailed in 
 the age in which he lived." Would Lord Camp- 
 bell have us believe that it was customary in 
 Thurlow's time for the first magistrate of the 
 realm to curse and swear, and keep a mistress and 
 publicly live with her and her children ? Such 
 was not the example of Mansfield, Kenyon, Ellen- 
 borough, or Eldon, and it will be hard to find a 
 
Thuklow. 59 
 
 precedent or parallel for Thurlow's conduct in 
 these particulars. 
 
 A more singular bundle of contradictions than 
 Thurlow was never seen in public life. In his 
 personal demeanor and character he seemed to set 
 at defiance the most fundamental rules of decency, 
 and yet he was looked up to as a sort of moral 
 oracle. He swore frightfully, but was the favor- 
 ite and patron of the clergy ; he lived publicly 
 with his illegitimate family, and yet his infliT.ence 
 carried the bill granting divorce on the petition 
 of a wife for the incestuous adultery of the hus- 
 band ; he was brutally arrogant and overbearing, 
 and yet was a fine classical scholar, had considera- 
 ble poetical talent, and personally superintended 
 the musical education of his daughters ; when 
 attorney-general, he moved the punishment of the 
 pillory against the Reverend Home Tooke, on 
 conviction for libel — a sentiment which struck 
 even old Sam. Johnson with horror, for he said 
 he " hoped they did not set the dog in the pillory ; 
 he had too much literature for that " — but after- 
 ward visited him in his retreat and discussed 
 questions of philology with him; apparently un- 
 feeling as he was really severe and inconsiderate, 
 he would repeat Shakespeare's description of the 
 attributes of mercy with tears in his eyes ; he 
 was most obsequiously sycophantic to the throne, 
 and most boldly defiant and abusive of the no- 
 
60 Thuelow. 
 
 bility ; destitute of real moral principle, he pre- 
 served the judgment-seat pure and impartial. 
 Characterized by small learning, considerable 
 sense, great force, monstrous effrontery, and no 
 principle whatever, he cannot for a moment be 
 ranked with the great and good men who have 
 filled judicial positions in his country, and while 
 there was much of brilliance in his composition, 
 it was not the steady luminousness of true genius 
 and virtue, but the intermittent and appalling 
 flashes of lightning illuminating for an instant 
 the gloom of a forbidding expanse, and leaving 
 the prospect more awful than before. 
 
LOIIGHBOEOUGH. 
 
 ONE of the most brilliant, if not the worthiest, 
 of the great men who came down from Scot- 
 land to London, and carried away the prizes of 
 law and politics, was Alexander Wedderburn, 
 Lord Loughborough and Earl of Eosslyn. He 
 was born in 1733, and was liberally educated. He 
 gave early indications of those remarkable powers 
 which afterward rendered him famous. At an 
 early age he was a favorite companion of such men 
 as Hume and Robertson. The former gave him 
 a letter of introduction to Dr. Clepham, of Lon- 
 don, in which he wrote : " But I will say no more 
 of him, lest my letter fall into the same fault 
 which may be remarked in his behavior and conduct 
 in life ; the only fault which has been remarked 
 in them, that of promising so much that it wiU be 
 difficult for him to support it. You will allow that 
 he must have been guilty of some error of this 
 kind, when I tell jon that the man with whose 
 friendship and company I have thought myself 
 very much favored, and whom I commend to you 
 as a friend and companion, is just twenty." The 
 young man was brought up to the bar and in the 
 
62 LOUGHBOEODGH. 
 
 Presbyterian church, and soon distinguished him- 
 self in both by his vigor, originahty, and independ- 
 ence. In the church, of which he was an elder, 
 he made himself quite obnoxious by his defense 
 of Hume against an attack leveled at his infidel 
 writings, but his advocacy was so potent that his 
 recommendation to " drop the overture anent Mr. 
 David Hume, because it would not in their judg- 
 ment minister to their edification," was adopted. 
 Shortly afterward, the Reverend John Home 
 having written the tragedy of Douglas, and sev- 
 eral of the clergy having been seduced into wit- 
 nessing its representation on the stage, the ques- 
 tion was put in assembly, " whether there should 
 be an overture anent the stage." "Wedderburn • 
 made a strong speech in the negative, but was de- 
 feated. At the bar he fell into a quarrel with 
 the lord president, and being ordered to make a 
 humiliating apology, refused, and threw off his 
 gown. On account of these incidents Scotland 
 soon became too hot for Sandy, and he came up 
 to London. With his gown he endeavored to get 
 rid of his native accent, and took lessons in elocu- 
 tion of the elder Sheridan. In this, according to 
 " Bozzy," he was successful, for he says : " Though 
 it was late in life for a Caledonian to acquire the 
 genuine English cadence, yet so successful were 
 his instructors and his own unabating endeavors, 
 that he got rid of the coarse part of his Scotch 
 
LOUGHBOEOUGH. 63 
 
 accent, retaining only as much of the native 
 wood-note wild as to mark his country, which," 
 adds Bozzy piously, " if any Scotchman should 
 afEect to forget, I should heartily despise him ! " 
 And again he says : " "When I look back on this 
 noble person at Edinburgh, in situations so un- 
 worthy of his brilliant powers, and behold Lord 
 Loughborough at London, the change seems al- 
 most like one of the metamorphoses in Ovid " — 
 a comparison more appropriate to his lordship's 
 political than to his personal transformations. 
 
 At his outset at the English bar he meditated 
 an unprecedented cowp cPetat. Having obtained 
 his silk gown and the rank of king's counsel, he 
 joined the northern circuit. This was against the 
 etiquette of the bar, which restrains a barrister 
 from changing his circuit except while " clothed 
 in stuff," because otherwise he might step imme- 
 diately into a great business, and advance him- 
 self over the heads of others long established on 
 the circuit. To add to the enormity, he employed 
 the clerk of Sir Fletcher JSTorton, the leader of the 
 circuit who had just retired, and thus he hoped 
 to command the late leader's enormous patronage. 
 The attempt failed, and he relinquished it in the 
 course of a year or two, and devoted himself to 
 chancery and the House of Lords. 
 
 His great ybrfe at the common law bar seems 
 
64 , Loughborough. 
 
 to have been the statement of facts and dealing 
 with them. His powers of examination were 
 limited, and so was his store of law. But in 
 chancery and the House of Lords he flourished. 
 In the latter he gained great distinction in the 
 Douglas cause, in which Fox pronounced his 
 speech the very best he ever heard on any sub- 
 ject. When solicitor-general, he defended Olive 
 before the House of Commons against the charge 
 of mal-administration in India, — " with extraor- 
 dinary force of argument and language," says 
 Macaulay. That essayist also remarks : " It is a 
 curious circumstance that, some years later, Thur- 
 low," — • now among Olive's assailants — " was the 
 most conspicuous champion of Warren Hastings, 
 while Wedderburn was among the most unrelent- 
 ing persecutors of that great, though not fault- 
 less, statesman." Macaulay elsewhere says of 
 Wedderburn, " that he was one of the few great 
 advocates who have also been great in the House 
 of Oommons." 
 
 Loughborough presided for thirteen years as 
 chief justice of the common pleas, and for eight 
 years as lord chancellor, with courtesy, dignity, 
 integrity, lenity, firmness, and impartiality. His 
 learning, although not profound or exact, was 
 generally suificient. His judicial oratory was of 
 the most elegant and captivating description, and 
 his judgments were graced from his literary stores. 
 
LoDGHBOEOUGH. 65 
 
 He was really a merciful man, although theoreti- 
 cally quite the reverse. He approved the dissec- 
 tion of the bodies of malefactors, and opposed the 
 changing of the punishment for coining froni 
 burning to hanging, in case of women, because 
 of the greater terror of the spectacle of burning, 
 while " no greater degree of personal pain is thus 
 inflicted, the criminal being always strangled be- 
 fore the flames are suffered to approach her body." 
 But Lord Campbell justly says, " such sentiments 
 reflect discredit on the times rather than the in- 
 dividual." There has been some animadversion 
 respecting his conduct on the trial of the Gordon 
 rioters. Mr. Jesse declares that nothing like it 
 had been seen since Jeffreys. But a careful scru- 
 tiny does not sustain this charge. Twenty-nine 
 of the rioters were hanged, but under the law of 
 the time they deserved it, and in his several charges 
 he cannot be accused of an undue leaning against 
 the prisoners. So, too, he has been roundly abused 
 for deciding that gleaning, without the consent 
 of the owner of the field, is trespass. Mr. Howitt, 
 who thinks him one of the wickedest of the hu- 
 man race, comments on this with severity, and 
 says " the law of Moses was more benevolent 
 than Loughborough law." But Mr. Howitt is a 
 sentimentalist, and therefore forgetful; else it 
 would have occurred to him that Loughborough 
 law hardly justified the doctrine of " an eye for 
 9 
 
66 LOUGHBOEOUGH. 
 
 an eye, and a tooth for a tooth." Still it must be 
 confessed that Loughborough was not a great law- 
 yer nor a great judge. He was not a lawyer by 
 .nature ; he was a politician and a debater. While 
 he transacted the business before him satisfac- 
 torily, his judgments will never be quoted as 
 authority or perused for their learning. 
 
 Wedderburn was a most accomplished political 
 debater and orator ; Campbell thinks the great- 
 est, for a lawyer, that ever sat in the House of 
 Commons. " More sarcastic than Murray, more 
 forcible than Pratt, more polished than Dunning, 
 more conciliator^^ than Thurlow, he combined in 
 himself the great "physical and intellectual requi- 
 sites for swaying a gentlemanlike mob." It must 
 be remembered that Fox and Bnrke gained no 
 decisive advantage over him, and he had the art 
 to make the American war appear just and well 
 conducted. In this, however, he had the sym- 
 pathies of the audience on his side. But "Wed- 
 derburn debased his great powers to the service 
 of a tyrannical court and the crushing of liberty 
 and reform. He was the most earnest advocate 
 of the doctrine of constructive treason, and pro- 
 moted the State prosecutions against Tooke and 
 others, which terminated so disastrously to the 
 crown, thanks to the sublime exertions of Ers- 
 kine. He opposed the extension of mercy in the 
 cases of the clergymen Muir and Palmer, con- 
 
LoUGHBOEOUG-H. 67 
 
 victed of sedition. In short, he ont-Heroded 
 Herod in his endeavors to serve the eonrt and 
 advance his own interest, so that at last even the 
 king said to him, "You have got us into the 
 wrong box, my lord : you have got us into the 
 wrong box; constructive treason won't do, my 
 lord, constructive treason won't do." 
 
 Wedderburn and Thurlow in the lower house, 
 and Mansfield in the upper house, of Parliament, 
 were the staunch enemies of American independ- 
 ence, and to Wedderburn particularly were due 
 those extreme measures which resulted in the dis- 
 ruption of the ties which bound the colonies to the 
 mother-country. Gibbon called North " the Pali- 
 nurus of the State," who might safety sleep, while 
 Wedderburn and Thurlow remained at their posts 
 to watch out the long debate. " The minister," 
 said Home Tooke on his trial, " sat secure between 
 his two brazen pillars, Jachin and Boaz, to guard 
 the treasury bench." Townsend says "the one 
 was the Ajax, the other the Ulysses, of debate ; 
 the one blunt, coarse, and vigorous, hurled hard 
 words and strong epithets at his opponent in a 
 tremendous voice ; the other elegant, subtle, and 
 insinuating, arrayed his arguments in all the per- 
 suasive guises of rhetoric, and where he could not 
 convince the reason or move the passions, sought 
 to silence objection with ii'onical pleasantry and 
 bitter sarcasm." The most interesting incident 
 
68 Loughborough. 
 
 to an American, in Wedderburn's political career, 
 was his invective against Dr. Franklin in the af- 
 fair of the Hutchinson letters. Franklin unques- 
 tionably never cared to explain how he obtained 
 possession of the letters, but he stood unmoved 
 and listened to Wedderburn's terrific denunciar 
 tion before the Privy Council. The severest 
 thing in the peroration was the declaration, 
 " henceforth he will esteem it a libel to be called 
 a wbom of letters, homo trium Utterarum,^'' — the 
 Roman fur, or thief. This speech produced a 
 tremendous effect on the British nation, and did 
 much to stir up the strife which ended so glori- 
 ously for our country. On account of it he was 
 burned in effigy at Philadelphia. A contempo- 
 rary epigrammatist wrote : 
 
 " Sarcastic Sawney, swoU'n with pride and hate, 
 On silent Franklin poured his venal prate ; 
 The calm philosopher, without reply, 
 Withdrew — and gave his country liberty." 
 
 Franklin himself says that the published report 
 of the speech was " perfectly decent " in compari- 
 son with the speech as delivered. Undoubtedly 
 Wedderburn had received a retainer to abuse 
 Franklin in unmeasured terms, and he gave his 
 money's worth. It is a noteworthy fact, that 
 when Franklin, on the termination of the war 
 seven years afterward, as ambassador at Paris, 
 signed the articles of peace, he wore the identi- 
 cal suit of clothes which he wore when Wedder- 
 
LOTTGHBOKOUGH. 69 
 
 burn delivered this philippic, and which he had 
 never put on since, and never wore again. Noth- 
 ing is left to us of this great speech save the per- 
 oration, and of this Brougham says, rather un- 
 justly, " we are thus reminded of some statue of 
 Cato,. of which nothing remained save the middle 
 region." Franklin himself testified to its rank- 
 ling effect by his continual references to it, al- 
 though at the same time he affected to despise it, 
 and said of the orator, that so mercenary a man 
 would have said as much in favor of the devil, as 
 he had said against him, if he had been well paid 
 for it. 
 
 Loughborough had neither wit nor humor, and 
 his conversational powers were small. His pri- 
 vate morals were irreproachable. He was a sin- 
 cere patron of learned men. In his private inter- 
 course he was uniformly considerate, amiable, and 
 courteous. His benefactions were considerable. 
 When the French chancellor sought an asylum 
 in England, he was welcomed by Loughborough, 
 who gave him the use of his own house, and con- 
 ferred gifts on him, amounting in a few years to- 
 more than £5,000. He was one who " did good 
 by stealth," but perhaps would not have " blushed 
 to find it fame." He was indeed always profuse 
 in his expenditures, and imposing in his display. 
 He maintained great hospitality and state as chan- 
 cellor, always going to court with his attendants 
 
70 LOUGHBOEOI'GH. 
 
 in two magnificent carriages, — a great contrast to 
 Eldon, who lugged the seals on foot through the 
 mud, or carted them in a hackney-coach if the 
 weather was bad. In person he was small and 
 somewhat insignificant, but his features were 
 well-shaped, and so great was his dignity that 
 his diminutive statm-e was overlooked. He had 
 a trick of raising himself on his toes when he 
 spoke, so that he literally grew with his subject, 
 and seemed of imposing size. He was accused 
 of contemplating his image in a mirror, and of 
 practicing his gestures and poses before it, which 
 accusation led Dr. Johnson gravely to defend 
 him, saying of him and of one Cator, a wealthy 
 timber merchant, who was also vain : " They see, • 
 reflected in that glass, men who have risen from 
 almost the lowest situations in life, one to enor- 
 mous riches, the other to every thing this world 
 can give, — rank, fame and fortune. They see, 
 likewise, men who have merited their advance- 
 ment by the exertion and improvement of those 
 talents which God had given them ; and I see not 
 why they should avoid the mirror ; " — a reflec- 
 tion which shows the great Doctor almost as snob- 
 bish as his little follower. 
 
 Although Loughborough was a man of culture, 
 and a patron of learned men, he has left no work 
 behind him, either in law or in literature. Wrax- 
 all says many attributed to him the authorship of 
 
LOUGHBOEOUGII. 71 
 
 the Letters of Junius, but he does not support 
 this opinion, but attributes the aiithorship to 
 " Single-speech " Hamilton. Mr. Townsend, in 
 his sketch of Loughborough, in the Lam Mag- 
 azine, incorrectly supposing that Wraxall had 
 given Loughborough the credit of the letters, dis- 
 agrees with him, and says, " we must live in the 
 faith that '■ aut Lord Sachville aut Diaiolus^ 
 was the author of those stinging satires ;" — from 
 which opinion the editor dissents in a note. It is 
 one of the amusing curiosities of biography, that 
 when Mr. Townsend published his sketches 
 in a book, entitled " Lives of Twelve Eminent 
 Judges," he changed the phraseology to " aut 
 Francis aut DiaholusP In his youth, Lough- 
 borough wrote some papers for the Edifribui'gJi 
 Review, and late in life he published a little 
 treatise " On the State of English Prisons, and 
 the Means of Improving them,' ' which did honor 
 to his humanity. His literary taste was elegant, 
 despite little Miss Burney's rebuke for his crit- 
 icisms on some of the characters of her novel, The 
 Braytons. In his distribution of the patronage 
 of his office he was just, considerate, and court- 
 eous, presenting in his manner of conferring 
 benefits a strong contrast to the bearish Thurlow. 
 As Loughborough deserted both the political 
 parties of the country by turn, his reputation has 
 been caught between two opposing fires. He is one 
 
72 LOUGHBOBOUGH. 
 
 of tlie best-abused men in history. Horace Wal- 
 pole calls him a "fiend" and "thorough knave." 
 George the Third, who had been demented, 
 exclaimed, when he learned of Loughborough's 
 death, " I have lost, then, the greatest scoundrel in 
 my dominions ! " When this remark was repeated 
 to Thurlow, he exclaimed, " Said he so ? then, 
 by G — d, he is sane ! " Brougham says of his 
 retirement from public service, that he had not 
 " the virtue to employ his remaining faculties in 
 his country's service by parliamentary attendance 
 or the manliness to use them for his own protec- 
 tion and aggrandizement." Junius bujs tha,t "to 
 sacriiice a respected character and to renounce the 
 esteem of society," was in him " rather a pro- 
 fession than a desertion of his principles," and 
 describes this as speaking " tenderly of this gentle- 
 man, for when treachery is in question I think 
 we should make allowance for a Scotchman ;" 
 and again, " "Wedderburn even treachery cannot 
 trust ; his reputation for slyness is proverbial." 
 But Brougham's summing up is still more severe '• 
 " A man of shining but superficial talents, sup- 
 ported by no fixed principles, embellished by no 
 feats of patriotism, nor made memorable by any 
 monuments of national utility ; whose life being 
 at length closed in the disappointment of mean 
 and unworthy desires and amidst universal neg- 
 lect, left behind it no claim to the respect or 
 
LoUGHBOBOUGH. 73 
 
 gratitude of mankind, though it may have ex- 
 cited the envy or admiration of the contemporary 
 vulgar." This is what it is to deceive both 
 parties ! Loughborough had not the forecast of 
 the unjust steward, who, wlien he cheated his 
 master, made friends of liis master's debtors. It 
 is fortunate for him tliat he happened to be whig 
 when the " Eolliad " was written, and tory when 
 the Anti-Jacobin was written, else.he might have 
 suffered again as years before he was described in 
 the " Eosciad : " 
 
 " To mischief train'd e'en from his mother's womb. 
 Grown old in fraud, though yet in manhood's bloom, 
 Adopting arts by which gay villains rise, 
 And reach the heights which honest men despise, 
 Mute at the bar and in the senate loud, 
 Dull 'mongst the dullest, proudest of the proud, 
 A pert prim prater of the northern race, 
 Guilt in his heart and famine in his face." 
 
 Loughborough also figures in Thurlow's Probar 
 
 tionary Ode in The EoUiad : 
 
 " D— mn Loughb'rough, my plague — would his bagpipe 
 were split ! " 
 
 He is also the subject of one of Sayer's caricar 
 tures. A debate had arisen, in 1755, on the 
 "Irish Propositions," in which Stormont, for 
 himself and Loughborough, who was absent, 
 threw obstacles in the way of the secretary for 
 home affairs, Sydney. The picture represents 
 Loughborough, his face turned away, turning an 
 ' 10 
 
74 LotTGHBOKOUGH. 
 
 enormous auger, with Stormont's head, and 
 boring a piece of timber with two knots inscribed 
 "first proposition" and " second proposition." 
 
 It is foreign to our purpose to trace the ter- 
 giversations and depict the disappointments of 
 the life of this splendid adventurer, spent in the 
 chase after the lord chancellorship. He was 
 ever a mercenary in politics, a complete political 
 weatliercock, always turning in the direction of 
 the great seal. For years it eluded his grasp. At 
 one time, when he deemed himself sure of it, it 
 was placed in commission, and he was appointed 
 first commissioner ! But his artful, supple, and 
 accommodating behavior at length prevailed, and 
 he clutched the coveted prize — how trifling and 
 fleeting a reward for such sacrifice of manliness 
 and principle ! In short, his political career was 
 totally unprincipled. In this respect, however, 
 he was little worse than the best men of his time. 
 One has only to read Fox's letter to him, apol- 
 ogizing for offering the seals to his rival, Thur- 
 low — a letter of which the writer confessed that 
 he felt ashamed — to understand how utterly cor- 
 rupt and venal the politics and the politicians of 
 the day were. It is pitiful and humiliating to 
 observe men of great intellect prostrating them- 
 selves and prostituting their powers in the strife 
 for the baubles of oflice ; but when two men like 
 
LoUGHBOEOtJGH. 75 
 
 Thurlow and Wedderburn were rivals for the 
 same office, their unscrupulousness, their servility, 
 their insincerity, and their eagerness, iill one 
 with amazement and shame. Their un worthi- 
 ness as statesmen is in singular contrast with their 
 purity as judges. 
 
ELLENBOEOUGH. 
 
 LORD Ellenborough was the fourth son of 
 Dr. Law, bishop of Carlisle, and was born 
 in 1750. He was educated at Cambridge, where 
 he graduated with high hohors, third wrangler in 
 mathematics, and first gold medalist in classics. 
 Among the distinguished English lawyers, who 
 took the highest honors on graduation, were Lit- 
 tledale, Alderson, Maule, Bell, Starkie, Tindal, 
 Parke, Eldon, Stowell, Tenterden, Taunton; 
 while the two greatest advocates since Erskine — 
 Scarlett and Follett — took a plain degree. El- 
 lenborough was called to the bar in 1780, and 
 immediately received a large share of business. 
 In 1782 he married a beautiful heiress, a descend- 
 ant of Sir Thomas More. His domestic relations 
 were always most happy. Yery soon after his 
 marriage he was summoned to the defense on the 
 most remarkable of state trials, the case of War- 
 ren Hastings. He stood practically alone in the 
 struggle against such men as Burke, Fox, Sheri- 
 dan, Windham and Grey. His legal acquirements 
 and experience gave him an advantage over his 
 
Ellenboeough. 7Y 
 
 antagonists, for. lie succeeded in twenty, out of 
 twenty-three, important contests on the admission 
 of evidence. It is my belief, however, that the 
 lords adopted too narrow views of evidence on 
 this trial. Those who accuse one of misconduct 
 and oppression, as governor of a province, ought 
 not to be restrained by the strict lines of such 
 evidence as would be admissible in a question of 
 petty larceny. Hastings deserved hanging, on 
 general principles, as richly as ever man did, but 
 the British lion could not be expected to visit jus- 
 tice on its jackal. The precedent would have 
 been unfortunate for Great Britain's subsequent 
 course of plunder and oppression. Some even of 
 the managers of the impeachment rose to their 
 feet with the rest of the commons, when Hast- 
 ings again came before their bar in 1813 — the 
 tribute of true British servility to royal robbery. 
 But the lawyer of thirty-five, who led in the 
 Warren Hastings trial, may be imagined to have 
 received a fair start in his professional career, and 
 from that day his progress was rapid and uninter- 
 rupted. He was generally selected for leader in 
 causes against Erskine. He was as superior to 
 him in legal learning as he was inferior in the 
 graces of oratory and knowledge of the human 
 heart. His elocution was forcible and vehement, 
 but uncouth and harsh. He had, however, a mag. 
 
78 Ellenboeough. 
 
 nanimous mind, and' his contests witli Erskine 
 were marked by mutual concessions of respect and 
 admiration. In 1801 he was made attorney-general, 
 and entered the house of commons. George 
 the Third, who occasionally said a good thing, 
 asked him about this time if he had ever before 
 been in parliament, to which Law replied no. 
 "That is right," said the king, "you will not be 
 obliged to eat your own words." As attorney- 
 general he convicted Governor Wall, of Sierra 
 Leone, for flogging a private soldier to death, and 
 this governor was hanged, which exhibits the 
 jealous regard of England for the rights of her 
 own subjects, however little she may have for 
 those of other nations. As a parliamentary orar 
 tor. Law was a shining exception to the rule that 
 lawyers fail in the house of commons, and a 
 inarked contrast to his great rival, Erskine. He 
 was a frequent debater on questions of constitu- 
 tional law and general policy. His unpremedita- 
 ted oratory, full of vast but unadorned power, al- 
 though marred by bad temper, produced great 
 effects. After holding the office of attorney-gen- 
 eral only ten months, he was made chief justice, 
 to fill the vacancy caused by the death of Ken- 
 yon. The peerage and the house of lords fol- 
 lowed of course. lu the latter assembly his 
 
Ellenboeough. 79 
 
 downright speaking gave offense to his dignified 
 brethren. 
 
 As a legislator EUenborough's name is written 
 on the statute book in letters of blood. The 
 statute of 43 Geo. Ill, c. 58, which was his work, 
 created ten new capital felonies on five days' 
 notice. He was rigidly opposed to all ameliora- 
 tions of the criminal code. As late as 1810 he 
 resisted the abrogation of the penalty of death 
 for stealing in shops to the value of 65. And 
 this he did upon the following extraordinary 
 course of reasoning : " My lords, if we suffer 
 this bill to pass, we shall not know where to 
 stand — we shall not know whether we are on 
 our heads or on our feet. If you repeal the act 
 which inflicts the penalty of death for stealing to 
 the value of 5s. in a shop, you will he called upon 
 next year to repeal a law which prescribes the 
 penalty of death for stealing 5s. in a dwelling- 
 house, there being no person therein ; a law, your 
 lordships must know, on the severity of which, 
 and the application of it, stands the security of 
 every poor cottager who goes out to his daily 
 labor. He, my lords, can leave no one behind to 
 watch his little dwelling, and preserve it from the 
 attacks of lawless plunderers; confident in the 
 protection of the la-vfs of the land, he cheerfully 
 pursues his daily labors, trusting that on his 
 
80 Ellenboeodgh. 
 
 return lie shall find all his property safe and un- 
 molested. Repeal this law, and see the contrast : 
 no man can trust himself for an hour out of 
 doors without the most alarming apprehensions 
 that on his retmm every vestige of his property 
 will be swept away by the hardened robber. * 
 * * My lords^ I think this, above all others, is 
 a law on which so much of the security of inan- 
 hind depends in its execution, that I should deem 
 myself neglectful of my duty to the public if I 
 failed to let the law take its course." Of course 
 Ellenborough was a violent opponent of all the 
 reforms agitated by Romilly, that great humani- 
 tarian and lawyer, whose name is now never pro- 
 nounced by our profession but with the prof ound- 
 est reverence. Mr. Townsend says in his biogra- 
 phy of Ellenborough : " So willfully blind are 
 the wisest men to the defects of a long estab- 
 lished and favorite system, that Sergeant Hawkins 
 declared that ' those only who took a superficial 
 view of the crown law could charge it vrith se- 
 verity,' at a time when old women could still be 
 executed for witchcraft ; * and Lord Ellenbor- 
 ough declaimed at a period, too recent, when pris- 
 oners might be pressed to death for standing mute 
 and refusing to plead ; f when women might be 
 
 • The laws against -witohoraft were not repealed until 1736. 
 +Not repealed till 1827. A man was executed in 1792 for refus- 
 ing to plead to a charge of burglary. 
 
Ellenbojbough. 81 
 
 flogged, to the outrage of female delicacy, and 
 burnt to death in due form of law ; when the 
 horrors were not yet abrogated that formed part 
 of the sentence of high treason ; when criminals 
 were slain in the pillory by the capricious fury of 
 the mob ; when flagrant but merciful violations 
 of their oaths were in constant use among jury- 
 men ; when the twelve judges might be called 
 into the open air to try a wager of battle,* which 
 time and civilization had strangely failed to abol- 
 ish, and the sentence of death was pronounced 
 with all its dread formalities by the reluctant 
 judge, who had no intention of carrying the edict 
 into execution." 
 
 But the human heart is a cui-ious thing. This 
 same enhghtened biographer, writing in 1846, ob- 
 serves : " The remarks of Lord Ellenborough on 
 the Insolvent Debtors' bills (mutatis mutandis) 
 are more deserving of attention, especially at a 
 juncture when such a decisive shock to credit is 
 contemplated as the abolishing altogether the pwn- 
 ishment of imprisonment for debtP He then 
 quotes with approbation EUenborough's reason 
 for retaining that oppressive statute ; a reason fit 
 to make one laugh, or rather cry, with vexation : 
 " The absence of imprisonment would go far to 
 the destruction of trade in this commercial coun- 
 
 * Not repealed till 1817. 
 11 
 
82 Ellenboeough. 
 
 try. There were twenty fraudulent debtors for 
 one vexatious and unmerciful creditor. JELe trem- 
 Med at the destruction of all trust in harter, if, 
 after a short confinement, the debtor might be 
 discharged. The man who, tottering on, the verge 
 of a gaol, could not, with effect, place his debtor 
 there, must enter tlie walls of a prison oraworh- ■ 
 house himself P Tlie man who believed that a 
 human life was worth only 5s. sterling, and that 
 the best way to promote commercial credit was to 
 shut the buyers up in gaol, was not intended by 
 nature for a legislator. He had not the foresight 
 of the lawgiver. He was a man of an age, and 
 not for all time. 
 
 But as a judge, and as far as mental grasp of 
 purely legal questions is concerned, he was great. 
 Fearless, pure, impartial, magnanimous, wise, he 
 was, indeed, a noble character ; disfigured, it is 
 true, by an overbearing impatience, but only as 
 the sun is disfigured by its spots. As an example 
 of his discriminating wisdom, I will instance his 
 decision in the libel case of Sir John Carr: 
 " Here the supposed libel has only attacked the 
 works of which Sir John Carr is the avowed 
 author ; and one writer, in exposing the follies 
 and errors of another, may make use of ridicule, 
 however poignant. Ridicule is often the fittest 
 weapon that can be employed for such a purpose. 
 
Ellenboeou&h. 83 
 
 If the reputation or pecuniary interest of the per- 
 sons ridiculed suffer, it is damnum, absque mjuria. 
 Where is the liberty of the press, if an action can 
 be maintained on such principles ? Perhaps the 
 plaintiff's ' Tour through Scotland ' is now unsal- 
 able ; but is he to be indemnified by receiving a 
 compensation in damages from the person who may 
 have opened the eyes of the public to the bad 
 taste and inanity of his compositions'^ Who 
 would have bought the works of Sir Robert Fil- 
 mer after he had been refuted by Mr. Locke ? 
 But shall it be said that he might have sustained 
 an action for defamation against that great phi- 
 losopher who was laboring to enlighten and ameli- 
 orate mankind ? We really must not cramp ob- 
 servations upon authors and their works. They 
 should be liable to criticism, to exposure, and even 
 to ridicule, if their compositions be ridiculous, 
 otherwise the first who writes a book on any sub- 
 ject will maintain a monopoly of sentiment and 
 opinion respecting it. This would tend to the 
 perpetuity of error. Reflection on personal char- 
 acter is another thing. Show me an attack upon 
 his character imconnected with his authorship, and 
 I shall be as ready as any judge who ever sat 
 here to protect him ; but I cannot hear of malice 
 on account of turning his works into ridicule." 
 Lord Ellenborough's decisions are famous for 
 
84 Ellenboeou&h. 
 
 research, breadth, sound logic, and perspicuity. 
 He never hesitated or doubted, and had the just 
 self-confidence which enabled him to establish 
 right rules where there was no guiding precedent. 
 His decisions on points of mercantile law, espe- 
 cially on insurance, and on questions of evidence, 
 are of vast importance. His style is Johnsonian 
 and Latinized, but vigorous in a high degree. 
 Two examples : " I do not think it is a trespass 
 to interfere with the column of air superincum- 
 bent on the close. * * * If this board overhang- 
 ing the plaintiff's garden be a trespass, it would 
 follow that an aeronaut is liable to an action of 
 trespass at the suit of the occupier of every field 
 over which his balloon passes in the course of his 
 voyage." Holding that it was indictable for a 
 timber merchant to cut logs in the street adjoining 
 his premises : " He is not to eke out the inconve- 
 nience of his own premises by taking in the pub- 
 lic highway into his timber yard; and, if the 
 street be narrow, he must remove to a more com- 
 modious situation for carrying on his business." 
 
 His conduct on the bench was generally char- 
 acterized by a grave and distant politeness, and 
 a sardonic wit, lacking in forbearance, aind sub- 
 ject to undignified bursts of displeasure. On one 
 occasion, a Qualcer appearing before him in the 
 garb of the world's people, he exclaimed : " Do 
 
Ellenbokough. 85 
 
 you mean to impose on the court by appearing 
 before us iu the disguise of a reasonable being ? " 
 To a witness who was evidently perjuring him- 
 self, he exclaimed, " You fellow, your swearing is 
 a waste of wickedness." He had a sovereign 
 contempt for rhetorical flights. " It is written in 
 the large volume of nature," said a barrister. 
 "At what page ? " gravely inquired the judge, 
 taking up his pen. When another counselor was 
 indulging in a pathetic strain, he was interrupted : 
 "Are we not, sir, rather getting now into the 
 high sentimental latitudes ? " An eminent con- 
 veyancer came from the king's bench, on one oc- 
 casion, expressly to argue a question concerning 
 real estate. Presuming on the judge's ignorance 
 of real property law, he commenced : "An es- 
 tate in fee simple is the highest estate known to 
 the laws of England." " Stay, stay," interrupted 
 EUenborough, " let me wi-ite that down." So he 
 wrote and read wich great gravity and delibera- 
 tion : " 'An estate in fee simple is the highest es- 
 tate known to the laws of England.' The court, 
 sir, is indebted to you for the information." His 
 severity met with two memorable rebukes. 
 Brougham, in defending some proprietors of a 
 newspaper for libel, made a fervid address to the 
 jury, and the chief justice, summing up, observed 
 that the defendant's counsel had imbibed the 
 noxious spirit of his client, and had innoculated 
 
86 Ellenboeough. 
 
 himself with all the poison of the libel, to which 
 Brougham retorted : " My lord, why am' I thus 
 identified with the interest of our client ? I ap- 
 pear here as an English advocate, with the privi- 
 leges and responsibilities of that office, and no 
 man shall call in question my principles in its 
 faithful and honest discharge. It is not, assur- 
 edly, to those only who clamor out their faith 
 from high places, that credit will be given for 
 the sincerity of their professions." On the trial 
 of Hone for ridiculing the Christian religion, in 
 which the defendant conducted his own case with 
 admirable skill, his lordship's behavior was, to 
 use Eomilly's description, so "intemperate and 
 indecent " as to provoke Hone to say : " My lord, 
 you are not my judge, but these," turning to the 
 jury, " are my judges." They acquitted him. 
 
 I have often thought, in reading the lives of 
 the judges, and in attending court, that it is un- 
 fortunate that a man must be an advocate before 
 he can be a judge. It is difficult for human na- 
 ture to overcome the force of habit and educa- 
 tion. So ia almost every case we hear the judge 
 discussing the facts, and arguing on probabilities 
 and credibilities, and, in the same breath, instruct- 
 ing the jury that these questions are their pecu- 
 liar province and entirely outside his own. Hu- 
 man nature is alike all over the world, in all 
 times, in all stations. Man is a disputatious ani- 
 
Ellenboeough. 87 
 
 mal, and logically dies hard. Adam must needs 
 dispute with the archangel. Thereupon we must 
 not hlame oiir judges for taking sides. The 
 Irishman's hands itch for a " shillalah " when he 
 sees a "free fight" going on between a few of 
 his friends, not so much for love of either party 
 as to gratify an innate pugnacity, and if his own 
 skull is cracked in the encounter he bears no mal- 
 ice. So the judge, when he sees so much fine 
 logic flying about the. heads of the jury, yearns 
 himself to have an intellectual whack at them, 
 and sometimes in his ardor his reasoning recoils, 
 like the eastern boomerang, upon his own rever- 
 end head. 
 
 His lordsliip's endurance and power of dis- 
 patching business were marvelous. He has been 
 known to sit seventeen or eighteen hours contin- 
 uously, and to dispose of as many causes at a sit- 
 ting. In Lord Cochrane's case he would not rise 
 until three o'clock in the morning, at the close of 
 the defendant's simiming up, and the defendant's 
 conviction was generally attributed to that cir- 
 cumstance. So great, however, was the public 
 confidence in his integrity, that Lord Cochrane's 
 subsequent charges against him, in parliament, for 
 ■judicial misconduct, were unanimously rejected. 
 At Guildhall he once cleared a calendar of five 
 hundred and eighty-eight causes. Talfourd says, 
 "he rushed through the list like an elephant 
 
88 Ellenboeough. 
 
 througli- a sugar plantation." As a mattei; of 
 course, this celerity was accompanied by frequent 
 errors, and prevented causes from being tried 
 with that care and fullness necessary to ensure 
 exact justice. He erred as much in haste as Eldon 
 in doubt and procrastination, and it is difficult to 
 tell which extreme proved the more mischievous. 
 
 In person, Lord Ellenborough was robust, 
 above the medium size, but ungraceful ; his fea- 
 tures were large and regular, his eyebrows shaggy, 
 his eyes stern and black, the whole expression 
 grave, and even harsh — a lion-looking man, al- 
 though the garrulous Jay has the audacity to 
 speak of him as ha\'ing " quite a turtle counte- 
 nance." He and Eldon M^ere both turned out of 
 the awkward squad of Lincoln's Inn corps for 
 awkwardness. His attempts at this legal training 
 gave him an opportunity to utter a memorable jfest. 
 When the drill sergeant reprimanded the company 
 for not preserving a straighter front, the great 
 judge replied, " "We are not accustomed to keep- 
 ing military step, as this indenture witnesseth.'''' 
 
 That mad wag, Tom Moore, makes much fun 
 of him and of his wig. He says : 
 
 " What ia Bombastes to thee, 
 
 My Ellenbro', when thou look'st big ?" 
 
 and again : 
 
 "We've Ellenborough' s curls still left us ; 
 Sweet curls, from which young love, so vicious. 
 His shots, as from nine-pounders, issue ; 
 
Ellenboeough. 89 
 
 Grand, glorious curls, whicli, in debate, 
 
 Surcbarg'd -with all a nation's fate, 
 
 His lordship shakes, as Homer's God did, 
 
 And oft in thundering talk comes near him ; 
 Except that there the speaker nodded, 
 
 And here 'tis only those who hear him." 
 
 Dying in 1818, aged 68, he left a fortune of 
 £240,000. In 1806 he refused the chancellorship, 
 his large soul disdaining the petty sums of 13s. 
 A:d. and 11. Is. which made up the princely in- 
 come of that office. He left hve sons and five 
 daughters. He was a consistent Christian, and 
 his life was one of elevated purity. 
 
 In his letters to Lord Eldon in 1816, deprecat- 
 ing his intention of retiring from the chancellor- 
 ship, he said : " We all owe our utmost useful- 
 ness to our country." This sentiment seemed to 
 be the argument of his career. His merits and 
 his 'demerits have been well summed up by 
 Townsend in a few words : " He did, for the 
 long term of sixteen years, execute justice ; he 
 did mavntcdn truth ; and all that ' obloquy can 
 allege is that .he executed the one in some few 
 instances with rigor, and boisterously maintained 
 the other." The impression one derives from 
 reading his biographies is of a grand character, 
 and a useful man — one who has left the world 
 better off for his having lived, and whose mem- 
 ory is to .be regarded, if not with tenderness, at 
 least with profound respect. 
 12 
 
ERSKII^E. 
 
 EESKESTE'S place among tlie English judi- 
 ciary depends upon a short tenure of oifice ; 
 his fame was achieved at the bar ; and yet a list 
 of the most eminent English judges would be 
 regarded incomplete without his name. As an 
 advocate, he enjoys the singular felicity of having 
 been pronounced peerless, by the common con- 
 sent of mankind, not only since his death, but 
 during his life ; and his reputation grows greater 
 every day. If men were called on to declare who 
 was the greatest poet, artist, musician, soldier, 
 orator, or sovereign, who ever lived, grave differ- 
 ences of opinion would arise. Homer and Shakes- 
 peare, Michael Angelo and Raphael, Handel and 
 Beethoven, Csesar and Napoleon, Demosthenes 
 ■and Cicero, or Fox and Pitt, Charlemagne and 
 Cromwell, would divide the suffrages of mankind ; 
 but when the question is, who was the greatest 
 advocate of whom we have any account, there 
 would be a unanimous and ungrudging response 
 — Thomas Erskine ; and there Js none who holds 
 the second place. His fame is not invested with 
 
Erskine. 91 
 
 the cliarm of antiquity ; he lived in our own busy 
 times. It is not dependent on tradition; his 
 greatest speeches are preserved. His place among 
 lawyers is as peculiar and unrivaled as Shakes- 
 peare's in literature. 
 
 It is a proud boast for Scotland that the greatest 
 of judges and the greatest of advocates were Scots. 
 Mansfield and Erskine — names which cause the 
 blood to glow in the veins of every lawyer who 
 cherishes a high ideal of his profession — what 
 other country can boast two such ? Dr. Johnson, 
 who heartily hated the Scotch, admitted that much 
 might be done with a Scotchman if caught young. 
 But Erskine was not precocious. He presents 
 the anomaly of a late and instantaneously bril- 
 liant entrance into the profession. Admitted to 
 practice at the age of twenty-eight, he gained 
 the height of legal fame not by slow and toilsome 
 steps, but at one bound ; he burst upon the world 
 a star of the first magnitude and of unfading ra- 
 ■ diance. 
 
 In considering this great man's character, the 
 student is struck with the wonderful roundness 
 and equality of his gifts. His eloquence, which 
 like the music of Orpheus, might have won a soul 
 from the shades^ was the companion of a solid and 
 unerring judgment, a charming vdt, a consuming 
 sarcasm, an exquisite tact, an intuitive knowledge 
 
92 Eeskine. 
 
 of mankind, and an inexorable and pervasive logic 
 worthy of St. Paul. Thus in perusing his trials 
 we hardly know which most to admire — his grand 
 and affecting flights of oratory, his management 
 of witnesses and of the details of the cause, or his 
 mastery over the minds of the tribunals which he 
 addressed. This man possessed as the gift of 
 heaven all the capacities any one of which feebler 
 men toil a long life-time to achieve, and then at- 
 tain only in an infinitely inferior degree. He ex- 
 emplified and exhausted the attributes of the ideal 
 advocate. 
 
 Undoubtedly Erskine's strongest claim to the 
 admiration of our profession and the gratitude of 
 mankind was his manly independence and un- 
 swerving devotion to principle. It is a significant 
 commentary on the standard of honor and right 
 among the legal profession that they most admire 
 Erskine for this characteristic. The first sound 
 of his voice in public was a trumpet-blast of defi- 
 ance to corruption in high places, and a note of 
 cheer and confidence to the wealc and oppressed. 
 To this principle he continued ti-ue throughout 
 his life. To give an adequate idea of what the 
 world owe to his incorruptible faith and elevated 
 sense of right, would involve a history of his 
 times too long for our limits. It is sufficient to 
 say that in a day when the liberties of England 
 
Eeskine. 93 
 
 were in the greatest danger of subversion by the 
 Crown, and all things seemed hastening toward 
 the same dread anarchy which desolated France, 
 Erskine stood as the champion of rational freedom 
 of speech and action, and saved his country by the 
 jury. Lord Campbell says : " He displayed genius 
 united with piiblic princij^e ; he saved the liber- 
 ties of his country ; he was the brightest ornament 
 of which the English bar can boast ;" " without 
 the invaluable assistance of Erskine, as counsel, 
 for the Dean of St. Asaph, the Star Chamber 
 might have been re-established in this country ;" 
 and Brougham says : " He was an undaunted man; 
 he was an undaunted advocate. To no court did 
 he truckle ; neither to the court of the King nor 
 to the court of the King's judges. Their smiles 
 and their frowns he disregarded alike in the fear- 
 less discharge of his duty. He upheld the liberty 
 of the press against the one ; he defended the 
 rights of the people against both combined to 
 destroy them. If there be yet amongst us the 
 power of freely discussing the acts of our rulers ; 
 if there be yet the privilege of meeting for the 
 promotion of needful reforms ; if he who desires 
 wholesome changes in o\ir constitution be still 
 recognized as a patriot, and not doomed to die the 
 death of a traitor ; let us acknowledge, with grat- 
 itude, that to this great man, under Heaven, we 
 
94 Ekskine. 
 
 >ve the felicity of the tunes." And the author 
 
 of The Bar concludes his eloquent tribute : 
 
 " Yet long as liberty the soul delig-lits, 
 And Britons clierish and maintain their rights. 
 Long as they love their country's sacred cause, 
 And prize the safest hulwark of their laws, 
 So long shall be, with freedom's loud acclaim, 
 ' Trial by jury,' linked with Erskiue's name." 
 
 To those unthinking reformers, who, living in a 
 republic, would abolish the privilege of trial by 
 j ury, we recommend the perusal of Lord Camp- 
 bell's account of the State trials in which Erskine 
 participated. The system may in oiu- day be 
 susceptible of modification, but far distant be the 
 day, when the lives o;- the property of citizens 
 of a country governed by the people shall be at 
 the mercy of any one man ! 
 
 If Erskine's speeches had not been preserved 
 and carefully reported, we might be skeptical of 
 the effects attributed to them. But on reading 
 them we no longer wonder that they were omni- 
 potent in courts of justice. The orations of De- 
 mosthenes and Cicero are dull and tedious in 
 comparison. In fact no orations but Burke's will 
 bear the comparison, and his were addressed to 
 posterity, for they emptied the House of Com- 
 mons. Nearly every one of Erskine's speeches 
 is a perfect model of its kind, in rhetoric, in con- 
 struction, and in the noble spirit which animates 
 the whole. When we add the speaking eye, the 
 
Eeskine. 95 
 
 graceful action, and the fervid enthusiasm of the 
 orator, we can easily believe that they were irre- 
 sistible. And yet so solid and sensible are these 
 addresses, and so pervaded by a manly and vigor- 
 ous reason, that it seems that they would again 
 produce their due effect, should the occasion again 
 arise, although wanting the voice of the master 
 and simply recited by another. 
 
 If Erskine's parliamentary service was inferior 
 to his legal career, it only goes to prove that a 
 great man cannot be equally great in every depart- 
 ment. Shakespeare would probably have been 
 as incapable of creating Bacon's philosophy, as 
 Bacon certainly was of creating Shakespeare's 
 dramas — Judge Holmes to the contrary notwith- 
 standing. And yet Erskine's feebleness in Par- 
 liament was comparative only. So much was ex- 
 pected of him from his shining qualities in the 
 courts of law, that in the disappointment at his 
 failure to come up to public anticipation in the 
 House of Commons, due credit was not attached 
 to his efforts as a statesman, which were certainly 
 quite above those of all his contemporaries except 
 the three or four acknowledged and experienced 
 leaders of the House. Yet it must be acknowl- 
 edged that he always seemed out of his element 
 in the House of Commons, and a little in awe of 
 Pitt. And here too he yielded somewhat to that 
 
96 Eeskine. 
 
 sense of loyalty which seems inseparahle from 
 every well-regulated Englishman, and which made 
 the high-minded Eldon and the, savage Thurlow 
 alike fawn about the throne. It is significant of 
 Erskine's character as well as of that of the 
 House of Commons of his day, that he long en- 
 deavored, earnestly, but vainly, to procure the 
 passage of a bill for the prevention of cruelty to 
 animals. 
 
 As Erskine's reputation gains nothing from his 
 parliamentary career, so it is not enhanced by his 
 judicial service. Here he labored under the dis- 
 advantage of inexperience and want of natural 
 adaptation. To put Erskine on the wool-sack was 
 to fasten Pegasus to a cart. ITot that the heav- 
 enly steed would not have learned in time to 
 make a respectable cart-horse, but it was not his 
 place, and there are thousands of meaner clay 
 who would have done it better. Although during 
 Erskine's chancellorship of a year, only one ap- 
 peal was taken, and on that his decree was affirmed, 
 yet it must be confessed that whatever our idol 
 might have become, he was not a great judge, 
 any more than he was a great statesman. 
 
 Much of the ready concession of Erskine's su- 
 periority to all his contemporaries was due to the 
 simplicity and amiability of his character and the 
 charm of his manners. On the stage where he 
 
Eeskine. 97 
 
 walked snpreme he neglected no artifice that 
 might help his cause. He was scrupulous about 
 his attire, and liked to be familiar with the court- 
 room before he made his formal ajjpearance there. 
 He was unquestionably an actor. So consummate 
 was his art, that in the peroration of one of his 
 greatest addresses he affected to have lost his 
 voice, and to be able only to whisper to the jury 
 for the last ten minutes, from which misfortune 
 he recovered as soon as he heard of the verdict 
 favorable to his client, and addressed the crowd 
 outside, exhorting them to moderation. But in 
 private life he was all simplicity, and gaiety, and 
 reveled in the most unrestrained animal spirits. 
 At the period of his greatest fame and success, 
 he thus describes his private occupations : "I am 
 now very busy flying my boy's kite, shooting with 
 a bow and arrow, and talking to an old Scotch 
 gardener six hours a day about the same things, 
 which taken altogether are not of the value or im- 
 portance of a Birmingham half-penny, and am 
 scarcely up to the exertion of reading the daily 
 papers." A consultation with Erskine must have 
 been a rare scene, when he chose to have his fa- 
 vorite dog present sitting up on his haunches, and 
 apparently giving much more attention than his 
 master, or when the great man interrupted the 
 business to describe his two pet leeches, which he 
 13 
 
98 Eeskine. 
 
 was preserving because they had successfully bled 
 Mm. His AV'it not only enlivened every cause, 
 but every social assemblage vs^here he was present. 
 One of his best puns related to his own sudden 
 dismissal from office. Capt. Parry, the arctic 
 navigator, ha^dng remarked that .he and. his men, 
 when frozen up in that region, subsisted mainly 
 on the seals, Erskine responded: "And very 
 good living they are too, provided you keep them 
 long enough." When Mr. Maylem said that his 
 physician had forbidden his bathing, " Ah ! " re- 
 marked Erskine, "then you're malum prohib- 
 itum ! " "But my wife bathes," continued the 
 unobservant gentleman. " Then she's malum in 
 se," was Erskine's rejoinder. But the brightest 
 exhibition of his wit and logic was in his reply to 
 the witness, who demanded to be sworn with the 
 uplifted hand, because, as he said, the angel in the 
 Apocalypse, when he stood on the sea, held up his 
 hand. " In the first place," said Erskine, " you 
 are no angel ; and then you don't know how the 
 angel would have done, if he had stood on dry 
 land as you do." If not so great a chancellor as 
 Eldon, he was at all events a better poet, and 
 made very clever vers de societe. One of the 
 best of these was his irreverent riddle on the 
 King: 
 
Eeskine. 99 
 
 " I may not do right, thougii I ne'er can do wrong ; 
 I never can die, thougli I may not live long ; 
 My jowl it is purple — my liead it is fat — ■ 
 Come, riddle my riddle. What is it? What? What?" 
 
 His political romance, entitled Armata, will 
 hardly be read so long as his speeches are accessi- 
 ble, although it is a clever production, and re- 
 ceived commendation from Dr. Parr. 
 
 Erskine was so fortunate in his life as to have 
 escaped public censure, except in two instances, 
 namely, his support of the prosecutions for libel 
 on the House of Commons, and his appointment 
 of his son-in-law as a master in chancery, after he 
 knew his own dismissal was resolved upon. The 
 iirst charge derives its gravity only from the in- 
 consistency of the action with bis whole former 
 life, and the second is a mere offense against deli- 
 cacy. In spite of some malevolent gossip of his 
 period, it would now seem that his private life 
 was pure as his public career was noble. Indeed 
 the lash of contemporary satire found nothing 
 severer to say of him than this, from the Pur- 
 suits of Literature : 
 
 " Or Erskine cease from impotent grimace, 
 And his appeals to God, Ma prime disgrace." 
 
 Mathias also hints at his reckless gaiety, for he 
 adds in a note on the above : " Mr. Erskine's own 
 better sense and serious thought (for I believe he 
 has some serious thoughts) will restrain him in 
 future. But publick men must be told of their 
 
100 Eeskine. 
 
 faults publickly." It is true that the same writer 
 hints at another habit of Erskine's, to which we 
 find no allusion elsewhere : 
 
 " In State affairs all barristers are vain, 
 And Fft'skine nods, the opium in his brain." 
 
 And in a note he says : " Mr. Barrister Erskine 
 is celebrated for taking opium in great quantities, 
 (I have often heard him speak in praise of it,) and 
 if he proceeds in this manner it is apprehended 
 that his political faculties will die of too large a 
 dose, of which there are many symptoms already." 
 Possibly it is this which Brougham refers to when 
 he says : " But there were darker places to be 
 marked, in the extreme imprudence with which 
 some indulgences were sought," etc. But as Lord 
 Kenyon said of him, " these were spots in the sun ;" 
 and after all this scrutiny, Erskine seems to have 
 displayed but one glaring fault to mar the beauty 
 of his splendid character as it comes down to us, — 
 a harmless and venial one, but so extravagant as to 
 amount alinost to an offense against society. We 
 refer to his vanity and egotism, which were cer- 
 tainly most inordinate. It is related that Erskine 
 once pertinaciously pressed Curran to admit that 
 Grattan was embarrassed on his first appearance 
 in the House of Commons. " Come, now," said 
 Erskine, " did not Grattan confess as much ? " 
 " No, my Lord," was the reply ; " Mr. Grattan is 
 
Ekskine. 10' 
 
 a very modest man ; he never speaks of Mmself ." 
 This characteristic furnished plenty of material 
 for contemporary satirists and caricaturists. The 
 writer has in his possession a colored caricature of 
 Erskine, published during his life by Grilray, and 
 entitled " Oouncellor Ego — i. e., little i, myself 
 *." He is represented at full length, in wig, 
 bands, and gown, holding in his hand a huge open 
 manuscript covered all over with ^^'s and me's. In 
 Pursuits of Literature we find the following : 
 
 " OCTAVIUS : 
 
 This of yourself ? 
 Author : 
 'Tis so. 
 
 OCTATIUS : 
 
 You're turned plain fool, 
 
 A vain, pert prater, bred in Erskine's school ; 
 
 Talk of yourself ? " 
 
 Arid in a note on the foregoing he remarks : 
 " The Hon. Thomas Erskine, the celebrated bar- 
 rister. For a further account of his talents, his 
 abilities, his legal knowledge, etc., see and ask — 
 Mr. Ershyne himself P Canning, in the cmti-Ja- 
 . cdbin, makes merry over this infirmity in a pre- 
 tended report of a dinner speech, in which among 
 other things he makes him say : " He was of no- 
 ble, perhaps, royal, blood — he had a house at 
 Hampstead — was convinced of the necessity of 
 a thorough and radical reform. His pamphlets 
 had gone through thirty editions — skipping al- 
 ternately the odd and even numbers. He loved 
 
102 Eeskine. 
 
 the Constitution, to which he would cling and 
 grapple — and he was clothed with the infirmi- 
 ties of man's nature." And Cobbett describes 
 one of his parliamentary harangues as lasting 
 thirteen hours, eighteen minutes, and a second, 
 and as ending with the dignified climax : " I was 
 born free, and by G— d, I'll remain so." He also 
 announces : " On Monday three weeks we shall 
 have the extreme satisfaction of laying before the 
 public a brief analysis of the above speech, our 
 letter-founder having entered into an engagement 
 to furnish a fresh font of I's." All this is very 
 amusing and very harmless. If any man ever 
 had a right to be vain, it was Erskine, and bad 
 men are rarely egotists. 
 
 But we must quit this fascinating subject. Our 
 profession owe Erskine a heavy debt of gratitude. 
 He showed the world what the honorable prac- 
 tice of the law can do for its follower and for 
 humanity. In these days, when our bar is viru- 
 lently assailed for daring to defend unpopular 
 men in spite of public clamor, it is well to re- 
 member Erskine's words : "J wHl forever, at all 
 hazards, assert the dignity, independence, and in- 
 tegrity of the English bar ;" — a sentiment echoed 
 on this side of the ocean by O Conor, the ac- 
 knowledged leader of the American bar, when, in 
 one of his earlier letters, he said : " To afford 
 
EssKmE. 103 
 
 even those whom impartial justice arraigns, upon 
 credible evidence, a fair hearing, is the first duty 
 of our profession." In these days, when eminent 
 counsel are publicly reprimanded, and even fined 
 by a prejudiced and despotic judge, for respect- 
 fully but firmly pressing their clients' rights, it 
 is well to recall Erskine's words when Judge Bul- 
 ler threatened to commit him for contempt : 
 " Your lordship may proceed in what manner you 
 think fit ; I know my duty as well as your lord- 
 ship knows yours. I shall not alter my conduct." 
 Lord Erskine's statue stands in Lincoln's Inn 
 Hall ; his memory is enshrined in the hearts of 
 a profession who recognize and bow to all that 
 is pure, fearless, humane, and disinterested in hu- 
 man nature. In conclusion wo quote the eloquent 
 tribute of the author of The Bar : 
 
 " Of ardent mind, with just ambition fired, 
 No danger e'er appalled, no labor tired. 
 Scorning tbe beaten mill-horse round to trace, 
 Where dullness travels with unvarying space, 
 He dared ' with brave disorder ' oft depart 
 To ' snatch a grace beyond the reacli of art/ 
 And far above those sluggish sons of earth 
 Who grub-like love the soil that gave them birth. 
 Upwards he sprung, on plumes of genius borne. 
 As soars the tuneful lark to meet the morn ! 
 While bats in dusky twilight wheel around. 
 And blinking owls in darkness skim the ground 
 So wings the bird of Jove his lofty flight, 
 To pierce the regions of empyreal light. 
 And on strong pinion borne, with steadfast gaze. 
 Mounts o'er the clouds amid the solar blaze ! 
 Through his long course, with fancy fresh and prime 
 And j udgment mellowed by the hand of time, 
 
104 Eeskine. 
 
 'Twas his each fine emotion to impart. 
 That charms the senses or that melts the heart ; 
 And as his varying periods rolled along 
 In magic tones, the captivated throng 
 Heard with delighted hopes, or thrilling fears, 
 The music or the thunder of the spheres ! 
 While filled with admiration and surprise. 
 And scarce believing either ears or eyes. 
 Charmed jury men, ere passion could subside. 
 Gave what their cooler moments had denied. 
 As some bright comet, flashing through the sky. 
 Whose brilliant orb attracts the upraised eye. 
 Whose track mysterious and portentous fire 
 Delight at once and solemn awe inspire. 
 While meaner stars hide their diminished rays. 
 Lost in the light of its effulgent blaze 
 Closes at length in gloom its bright career, 
 And then the twinkling stars again appear ; 
 So he, while fame, unclouded still by time, 
 Shone in full glory o'er his course sublime, 
 With setting splendor left his throne of light. 
 And all again was ' chaos and old night.' " 
 
ELDON. 
 
 ONE of the most venerable figures in English 
 judicial history is Lord Chancellor Eldon. 
 As in his later years, when he was summoned 
 into court as a witness, the bar arose to do him 
 honor, so now, when his name is pronounced, we 
 feel a respect and veneration, excited by the men- 
 tion of but one other name in the annals of juris- 
 prudence, — the name of Mansfield. This great 
 lawyer, sprung from a humble lineage, began his 
 life in the reign of George the Third, and ended it 
 in that of Victoria. He held the seals of Great 
 Britain under two kings, and his decisions, filling 
 upward of thirty volumes, extended over a period 
 of almost a quarter of a century. During this 
 long period he administered the intricate equity 
 law of the wealthiest kingdom on earth, so faith- 
 fully and intelligently, that only two of his deci- 
 sions were ever reversed. 
 
 As a judge he was remarkable for his pa,tience, 
 his courtesy, his candor, his integrity, and his 
 profound learning. He was doubtless the most 
 patient man who ever sat on the English bench. 
 In fact his patience amounted almost to a vice, 
 14 
 
106 Eldon. 
 
 for he allowed counsel to indulge in the most ex- 
 travagant prolixity. His enemies attributed this 
 to his notorious indecision. In a character of 
 Lord Eldon drawn by Justice Williams, his critic 
 says, " when all the efforts of the judge to coax 
 the advocate into greater prolixity had been ex- 
 hausted, the dreaded moment of decision came." 
 But at all events counsel never had to complain 
 of harsh or unfair treatment from him. In this 
 particular he presents a strong contrast to Ken- 
 yon and Ellenborough. Even when he was at- 
 torney-general, and conducted an unprecedented 
 number of state trials, he so demeaned himself 
 as to earn the respect of those whom he prose- 
 cuted, and this at a time of great political turbu- 
 lence and popular disorder. Without losing his 
 dignity, he indulged in a strain of pleasantry 
 that frequently made his court a scene of merri- 
 ment. The author of " Tlie Ba/r " says : 
 
 " Titters the grinning bar — from one to one 
 The epidemic spreads— and 'midst tlie fun. 
 My Lord himself unbends — and drops a pun. 
 Then bursts aloud the chorus of applause. 
 No matter who the butt, or what the cause, 
 For when the Master smiles, and drops his staff, 
 And condescends to joke — the 6oys must laugh." 
 
 It must be confessed however that his recorded 
 jokes and puns are very bad ones, — not at all 
 comparable with those of Erskine. Decidedly 
 the best one was in the case of Sherwood v. 
 
Eldon. lOY 
 
 Pierce Egan, an application to restrain the pub- 
 lication of a history of prize-fighting, called 
 "Boxiana." Mr. Shadwell stated the case, and 
 his Lordship asked : " Have you got any affidavit, 
 or are you going upon what is called 'the 
 fancy % ' " Of his candor it is only necessary to 
 say thai he himself concurred in the reversal of 
 the two decisions above mentioned. We have 
 said he was remarkable for integrity ; we do not 
 mean that he was singular in this regard, for in- 
 tegrity has always been a property of the En- 
 glish bench. But it seems never to have occurred 
 to any one that he was to be influenced by im- 
 proper considez'ations. He does himself tell us 
 that a "Welsh woman, a suitor in his court, once 
 tried to bribe him with a present of a goose. 
 At least he so construed it, although if it was 
 sent in its quills we should infer that the good 
 woman meant it as a hint to him to hurry up 
 her case. His character commanded respect even 
 from contemporary satirists. Even Mathias, 
 whose lash scarcely any escaped in his " Pursuits 
 of Literature^'' says "he practices whatever is 
 honorable and virtuous and dignified in learning 
 and in professional ability ; " and to illustrate an 
 extreme improbability, says that sooner shall 
 
 " one mean cause the virtuous Scott maintain. 
 Turn law to trade, or deem religion vain." 
 
108 Eldon. 
 
 Not only was Lord Eldon personally pure in the 
 administration of equity, but his decisions breathe 
 an elevated morality. His anxiety to do right 
 and work equity led to his ridiculous hesitancy. 
 Sometimes also he was rather over-nice. Two 
 remarkable instances occm- to us. He refused to 
 protect Lord Byron's drama, Cavn, from copy- 
 right infringement, because he deemed its doc- 
 trines objectionable and immoral. The poet was 
 much chagrined, but Sir Walter Scott, to whom 
 the poem was dedicated, and who certainly was 
 as good and intelligent a man as his Lordship, 
 accepted the dedication in flattering terms. Still, 
 Byron seems to have cherished no very deep 
 malice, for in Don Juan he says : 
 
 " Impartial between Tyrian and Trojan, 
 As Eldon on a lunatic commission. " 
 
 The other instance was his despotic act in depriv- 
 ing the poet Shelley of the custody of his elder 
 children, on the sole ground that he was an in- 
 fidel. The poet however had his revenge in a 
 poem which will last as long as the Chancellor's 
 decision, and in which he- curses the Chancellor 
 by nearly as many forms and with as much in- 
 genuity as the Catholic anathema. Among other 
 things, he refers to the Court of Chancery and 
 the Chancellor as 
 
Eldon. 109 
 
 " the eartli-oonsuming hell 
 Of which, thou art a demon," 
 
 and says of the Chancellor : 
 
 " The country's crest is on thee, darkest crest 
 Of that foul, knotted, many-headed -^orm, 
 Which rends our mother's bosom." 
 
 He even distorts the signs of the kind old Chan- 
 cellor's quick sympathies : 
 
 " By thy most killing sneer, and by thy smile. 
 By all the acts and snares of thy black den. 
 And — for thou canst outweep the crocodile, — • 
 By thy false tears — those millstones, braining men." 
 
 Really, a Chancellor stands no chance against a 
 poet after a few generations. His contemporaries 
 however will rather reiiect upon the scrupulous 
 and conscientious care with which he considered 
 the enormous interests in his charge, and think 
 that the irritable race of poets are sufficiently 
 avenged by the muse. In respect to his learning 
 there cannot be any difference of opinion. If 
 not the grandest, he was by far the most learned, 
 of the English chancellors. He surpassed every 
 other judge in his familiarity with equitable prin- 
 ciples and the proper method of applying them. 
 He knew not only what ought to be done, but 
 how to do it. His unrivaled experience and 
 kaowledge instantly suggested the correct prin- 
 ciple and the appropriate mode of application. 
 Nothing was ever novel to him. If the case 
 seemed unprecedented, he laid down the proper 
 rule with a certainty and a correctness that 
 
110 Eldon. 
 
 thenceforward established the precedent for pre- 
 cisely such cases. Still, we do not esteem him so 
 distinctively a creator as an applier of equity juris- 
 prudence. , He had not the superb formative 
 reason of Hardwicke. We do not find in his de- 
 cisions grand principles fit for many cases, so 
 much as apt rules for the particular case. A re- 
 viewer has said : " Of a clear, unreserved, definite 
 exhibition of general principles, and of what the 
 law is, the faithful mirror of Vesey holds up no 
 portrait, because the original does not exist. Lord 
 Eldon's decisions will be of admirable weight 
 and authority, when the Platonic year in its revo- 
 hition shall have brought round, not merely 
 the same precise state of facts, but the very same 
 plaintifE and defendant, the same learned gentle- 
 men to contest and defend their mutual interests, 
 and to crown and complete all, the self -same Lord 
 Chancellor to decide." In view of their extent, 
 depth, and the difficulty of making them availa- 
 ble, the decisions of Lord Eldon may be com- 
 pared to a mine of legal lore, while those of Lord 
 Hardwicke are a mint. 
 
 There were two serious drawbacks to Lord 
 Eldon's usefulness as a judge. First and foremost, 
 his lamentable dilatoriness and indecision, and 
 second, the tedious, diffuse, and obscure style in 
 which he expressed himself when he had made 
 up his mind. The former was notorious and 
 
Eldon. Ill 
 
 proverbal, and although its mischievous effects 
 were doubtless much exaggerated, yet they were 
 sufficiently grave. The reviewer above quoted 
 might well have added, that when the Platonic 
 year should bring around the seli-same case, par- 
 ties, counsel, and judge, the judge would ponder 
 just as long as if he never had heard of the case. 
 His indecision was a habit and a disease. He 
 thought it was a virtue, and persisted in it in spite 
 of ridicule and remonstrance. Even EomUly ad- 
 mitted that the " tardy justice " of the chief was 
 better than the " swift injustice " of his vice. Sir 
 John Leach. This characteristic was never better 
 described than by the author of The Bar: 
 
 " One weighty drawback, like a galling chain, 
 Fetters Eis limbs and makes his progress vain. 
 Weak indecision, like the shifting wind, 
 Perplexes and distracts his dubious mind; 
 And as his judgment owns her palsying sway. 
 Of strange misgivings he becomes the prey; 
 Wavering, ' infirm of purpose,' to both sides 
 He listens patiently, but ne'er decides ! 
 Points on which all opinions are agreed. 
 And cases clear, which they who run may read. 
 He hears — re-hears — from time to time postpones, 
 While on the racli exhausted patience groans; 
 And when at leUj^'th his day of judgments come 
 Makes up his mind — to take the papers home. 
 And though the fiat trembles on his tongue. 
 Doubts to do right, for fear of doing wrong. 
 With load enormous pressing on his back. 
 He patiently pursues his mill-horse track ; 
 Vain is the use of curb, or lash, or goad. 
 To check or urge him faster on his road ; 
 Onward he moves with slow but certain pace. 
 And always keeps his temper — and his place." 
 
112 Eldon. 
 
 Lord Brougham, in the most brilliant and the 
 severest character of Eldon ever written, in speak- 
 ing of his doubts and their triviality, says : " He 
 was about as often the slave of them as the Indian 
 is of his deformed little gods, of which he makes 
 much, and then breaks them into pieces, or casts 
 them into the fire." But the funniest banter on 
 this topic is in Tom Moore's Vision, ly the au- 
 thor of Christdbel, where he dreams that a vicious 
 spirit carried him into the Court of Chancery, 
 and showed him Lord Eldon under the guise of 
 Prospero: 
 
 " Around me flitted unnumber'd swarms 
 Of shapeless, bodiless, tailless forms ; 
 (Like bottled up babes, that grace the room 
 Of that worthy Knight, Sir Everard Home)— 
 All of them things half-killed in rearing ; 
 Some were lame — some wanted hearing ; 
 Some had through half a century run. 
 Though they hadn't a leg to stand upon. 
 Others more merry, asjust beginning, 
 Around on a point of law were spinning ; 
 Or balanc'd aloft, 'twixt Bill and Answer, 
 Lead at each end, like a tight-rope dancer, 
 Some were so cross that nothing could please 'em ; — 
 All were in motion, yet never a one, 
 Let it move as it might, could ever move on. 
 ' These ,' said the spirit, ' you plainly see, 
 Are what they call suits in Chancery ! ' 
 
 " I look'd and saw a wizard rise, 
 With a wig like a cloud before men's eyes. 
 In his aged hand he held a wand. 
 Wherewith he beckoned his embryo band. 
 And he mov'd and mov'd, as he wav'd o'er, 
 But they never got on one inch the more. 
 And they still kept limping to and fro. 
 
Eldon. 113 
 
 Like Ariels around old Prospero — 
 
 Saying ' Dear Master, let us go.' 
 
 But still old Prospero answered ' No.' 
 
 And I heard the while, that wizard elf 
 
 Muttering, muttering spells to himself. 
 
 While o'er as many old papers he turn'd 
 
 As Hume e'er mov'd for, or Omar burned. 
 
 He talk'd of his virtue — ' though some, less nice, 
 
 (He own'd with a sigh) preferred his Vice ' — 
 
 And he said ' I think ' — 'I doubt ' — '1 hope,' 
 
 Called God to witness, and damn'd the Pope ; 
 
 With many more slights of tongue and hand, 
 
 I couldn't for the soul of me understand. 
 
 Amaz'd and pos'd, I was just about 
 
 To ask his name, when the screams without, 
 
 The merciless clack of the imps within. 
 
 And that conjuror's mutterings made such a din 
 
 That, startled, I awoke — leaped up in my bed — 
 
 Found the Spirit, the imps, and the conj uror fled. 
 
 And bless'd my stars, right pleas'd to see. 
 
 That I was not, as yet, in Chancery." 
 
 The same poet has some amusing verses, enti- 
 tled " Hat versus "Wig," commencing : 
 
 " 'Twixt Eldon's Hat and Eldon's Wig 
 There lately rose an altercation, — 
 Each with it's own importance big, — 
 Disputing which most serves the nation.'' 
 
 In the course of the poem Wig says : 
 
 " Twas mine our master's toil to share ; 
 When, like ' Truepenny,' in the play. 
 He, every minute, cried out ' Swear,' 
 And merrily to swear went they." 
 
 A reference to his Lordship's incessant demand 
 for fresh affidavits. Still another satirical refer- 
 ence to his dilatoriness is contained in the same 
 poet's " Ode to Ferdinand :" 
 15 
 
1 14 Eldon. 
 
 " First, thy care, of King devote 
 To Dame Eld — n's petticoat. 
 Make it of that silk whose dye 
 Shifts forever to the eye. 
 Just as if it hardly knew 
 Whether to be pink or blue. 
 Or — material fitter yet — 
 If thou could'st a remnant get 
 Of that stuff, with which, of old, 
 Sage Penelope, we're told. 
 Still by doing and undoing. 
 Kept her suitors always wooing — 
 That's the stuff which I pronounce is 
 Fittest for Dame Eld — n's flounces." 
 
 As to his lordship's style it is the most exasper- 
 ating conceivable. It is hard to understand how 
 he obtained the chancellor's prize for the best 
 English essay at the university ; it must have been 
 ex parte. Lord Campbell says that nobody would 
 think of reading one of Eldon's judgments with- 
 out a retainer, and that " his opinion, v}here it 
 can he discovered, will rule the cases to which it 
 is applicable." A reviewer says, " Lord Eldon's 
 judgments lie, like Egyptian mummies, embalmed 
 in a multitude of artfully contrived folds and 
 wrappers." He seemed as fearful of committing 
 himself in his rhetoric as in his judgments. 
 Nothing he ever wrote could be remembered or 
 quoted. Unlike Hardwicke, Mansfield, Stowell, 
 and Grant, he lives only in head-notes and tradi- 
 tion. 
 
 As a statesman and legislator, he was a tory of 
 the tories. He viewed such men as Romilly and 
 
Eldon. 115 
 
 Brougham with dismay. He opposed every meas- 
 ure of reform in law and in government. He 
 fought the Catholic emancipation with bitterness 
 and beheld its success with absolute despondency. 
 He opposed every amelioration of punishment, 
 and if he could have had his way, he would have 
 increased rather than have dhninished the number 
 of capital offenses. He thought that railways 
 were dangerous inventions. He opposed the dis- 
 senters' marriage act. So obsequious was his loy- 
 alty, that after George the Third was confessedly 
 crazy he persisted in giving the official sanction 
 to acts requiring. the royal assent. He stood for 
 years in the way of Brougham's promotion, be- 
 cause the latter defended Queen Caroline. He 
 even resisted the abolition of the slave-trade ! 
 And yet he was not a monster nor a fool. He 
 was simply an immitigated old fogy. Moore 
 makes him say : 
 
 " I own, of our protestant laws I am jealous, 
 
 And long as God spares me, will always maintain, 
 That o^^C6 having taken men's rights, or umbrellas, 
 We ne'er should consent to restore them again." 
 
 Much given to croaking, prophesying, weeping, 
 
 praying, and somewhat to swearing, still he was 
 
 far from what Byron depicts him in " The DeviVs 
 
 Drive .•" 
 
 " And he saw the tears in Lord Eldon's eyes. 
 Because the Catholics would not rise, 
 In spite of his prayers and his prophesies." 
 
116 Eldon. 
 
 He was that stifEest brake on the wheels of pro- 
 gress — an English tory high in place. 
 
 When we come to consider his minor character- 
 istics, there is an amusing mixture. His oratory 
 was listened to with respect but not with pleasure. 
 Indeed, his first speech in the House of Lords, 
 which was designed to be humorous, succeeded in 
 exciting the laughter of the house, but it was at 
 the speaker and not the speech. His scholarship 
 was meagre, and he took no delight in letters. He 
 was rather stingy of his preferments, and not very 
 discreet in their distribution. He was not at all 
 modest, but yet was not so nearly consumed ■with 
 vanity as Erskine. He was by no means generous 
 in his estimate of the abilities of other lawyers. 
 He was very prudent in money matters, and pre- 
 tended to believe, or had the hallucination, that 
 his acceptance was a pecuniary sacrifice, and yet 
 he left an enormous fortune. He was an abomi- 
 nable shot, but was excessively fond of shooting. 
 He had no ear for music, confessing that he did 
 not care for Catalani. He made very bad verses 
 on a young lady's ankle, but his worst were on a 
 subject that should have inspired him, — his wife, 
 " dear Bessie." We could have spared these for 
 the bill in chancery in verse which he is said to 
 have drawn in his youth. He was veiy fond of 
 dogs, and his favorite dog appears in several of his 
 portraits. Indeed, his lordship's best literary per- 
 
Eldon. 117 
 
 formance was an epitaph on a dog. He was an 
 unafEected, merry companion, and enjoyed a 
 romp. He was a good deal of a wag, and loved 
 a practical joke. He was very plain in his dress, 
 and was frequently mistaken for his own keeper 
 rather than the keeper of the seals. He was un- 
 ostentatious almost to meanness, " working the 
 great seal with a pair of horses," and a battered 
 old coach. He was a good liver, and could carry 
 ofE his three pints of port without trouble. He 
 undertook to laugh at his brother. Lord Stowell, 
 who also was an epicure, by saying that he took 
 exercise twice a day regularly — in eating ; but his 
 brother paid him off with a drive at his love of 
 port and his parsimony, saying, " my brother will 
 drink any given quantity of wine." He was re- 
 ligious, but he found difficulty in acceding to the 
 requirements of the Chiistian system, and seemed 
 to think that he was sure of salvation because he 
 "never gave the property of A. to B." His re- 
 fractoriness on this score was the occasion of the 
 celebrated letter of the Bishop of Exeter, a pro- 
 duction which it would be almost impossible for 
 even an infidel to read without tears. His affec- 
 tionate heart was evinced in the touching sim- 
 plicity and fidelity with which he continued to 
 visit and write to his brother, Lord Stowell, long 
 after the magnificent intellect of the latter had 
 passed into eclipse, and when his brother's pious 
 
118 Eldon. 
 
 ministrations were plainly unavailing. That his 
 courtesy was not always artless is evident from 
 an anecdote told by Jay. At Gifford's funeral, 
 Lord Eldon and Chief Justice Abbott were 
 placed in the same pew, which was overlooked by 
 Jay, who sat in the gallery. The chief justice 
 being a great snufE-taker, Eldon asked him for 
 his snnfE-box, and having helped himself to a 
 pinch, threw it away and went through the 
 motion of inhaling it. Jay says : " I was young 
 at the time, and was astonished at the deception 
 practiced by so great a man, with the grave yawn- 
 ing before him." Although his indecision was 
 the most salient trait in his public character, yet 
 the most ■ noticeable event in his private career 
 was remarkable for any thing but indecision ; — 
 he ran away with his wife. So did the contem- 
 porary Archbishop of Canterbury, and George 
 the Eourth used to joke them aboiit it. The 
 only difEerence in this respect between the mon- 
 arch, and the prelate and the judge, was that 
 the two latter ran away with their own wives, 
 while the former ran away with other men's. 
 The simple and undisguised fondness of the great 
 Chancellor for the wife of his youth is one of the 
 most toiiching traits of his character, and is alone 
 sufficient to endear him to the Anglo-Saxon race, 
 among whom domestic virtue is pre-eminent. 
 Conforming to her taste he eschewed society and 
 
Eldon. 119 
 
 neglected the duty of hospitality. " She cut his 
 hair, arranged his linen and clothes for dress, and 
 stole to the window, when he went out, to see, so 
 neat in all his arrangements, the Chancellor pass 
 by." The fondest of husbands and fathers, he 
 was " faithful in sorrow as in love," for surviving 
 Bessie, he ever mourned her loss, and at his own 
 direction was buried at her side an5 "' as near to 
 her as possible." What a picture of English 
 greatness, simplicity, and virtue! The last 
 thought of the great Lord Chancellor Eldon was 
 to have his dust mingle with that of his wife, 
 sweet, simple Bessie Surtees. It is no wonder 
 that England is great when her destinies have 
 been formed by men of such pure and single 
 aims. We may be impatient with our mother- 
 country ; we may have our Jest at her expense ; 
 but we must ever be proud of our descent from 
 such a race, and it must make us proud that as 
 lawyers we can claim communion with the fame 
 of such a man and lawyer as John Scott, Lord 
 Eldon. 
 
EOMILLY. 
 
 IT is refreshing to turn from Thurlow and 
 Loughborough, of whose lives self-interest was 
 the key-note, to the career of Sir Samiiel Eom- 
 illy, one of the purest, brightest and most benefi- 
 cent spirits that have ever blessed our sphere. 
 Born in 1751, of French protestant stock; vdth 
 small early opportunities for education, but self- 
 taught in a great measure ; his early proolivitieB 
 toward literature rather than the law ; appren- 
 ticed to a clerk in chancery ; by birth and sym- 
 pathy an ardent admirer of the French, and be- 
 coming an intimate associate of Mirabeau and 
 the other great revolutionary spirits ; rising to 
 the leadership of the bar ; appointed solicitor- 
 general, but deliberately sacrificing to the cause 
 of the people and humanity every other official 
 distinction which was easily within his command ; 
 sitting in parliament as the voluntary choice of 
 unpurchased constituencies, which elected him 
 while he was quietly pursuing his vocation in the 
 courts ; for many years devoting every energy of 
 his nature to the amelioration of his race, with- 
 
ROMILLY. 121 
 
 out one thought of his own advancement ; earn- 
 ing by the unselfish exercise of his unrivaled 
 powers the ardent love of his contemporaries and 
 the imdying gratitude of posterity ; and dying 
 by his own hand in 1818 ; such is the life-story 
 of Sir Samuel Romilly, illustrating the noble 
 capacities and sublime aspirations of human na- 
 ture, and the pitiable frailty by which it is en- 
 vironed. 
 
 Komilly is one of the few lawyers who have 
 left any thing like an autobiography. His sketch 
 of his life is slight, designed only for his child- 
 ren, but suffices to disclose his modesty, his can- 
 dor, hi,s sincerity, his self -scrutiny and the purity 
 of his motives. His self-culture was very system- 
 atic, thorough and extensive, especially in Latin, 
 and this he supplemented by a course of lectures 
 at the Koyal Academy on painting, architecture 
 and anatomy. All this time he was doing the 
 drudgery, of an accountant in his father's busi- 
 ness, in the vain attempt to become a merchant. 
 Afterward becoming apprentice to a clerk in 
 chancery, and looking forward to succeed to a 
 similar office, his youthful plan of life, he says, 
 " was to follow my profession just as far as was 
 necessary for my subsistence, and to aspire to 
 fame by my literary pursuits." It is amusing to 
 read that he early fancied himself a poet, and 
 that his translations in verse from the Latin " left 
 
 16 
 
122 EOMILLY. 
 
 Bryden at a hiuniliating distance." A legacy of 
 some £15,000 to his father put the family on an 
 easier footing, but rather than trouble his father 
 to pay the £2,000 which belonged to him, Rom- 
 illy relinquished his idea of purchasing a clerk- 
 ship. It was during his visits to France that he 
 imbibed that sympathy for the oppressed and 
 that consuming desire to alleviate the rigors of 
 the criminal laws, which absorbed his entire ener- 
 gies in his mature years. When he had arrived at 
 the height of his power and distinction, so mod- 
 erate was the tone in which he spoke in his me- 
 moirs of his successes, that a story- writer attributes 
 it to his never having taken a just pride in his 
 profession, nor set inuch value on its honors ! So 
 little are some men able to understand how an- 
 other can be above office-seeking ! It is perfectly 
 certain that Romilly would have been chancellor 
 on his party's first accession to power, had not his 
 independent course in parliament offended the 
 court, and put it out of the question ; and yet 
 nowhere do we find any expression of disappoint- 
 ment or discontent. His course was considerately 
 chosen and he never murmured at the conse- 
 quences. 
 
 It has always been conceded that Eomilly was 
 the leader of the equity bar in his day. Brougham 
 goes further, and calls him " unquestionably 
 
EOMILLT. 123 
 
 the first advocate and the most profound lawyer 
 of the age he flourished in." The same unsur- 
 passed critic says : " Of his eloquence, it must be 
 admitted that it united all the more severe graces 
 of oratory, both as regards the manner and the 
 substance. No man argued more closely when 
 the understanding was to be addressed ; no man 
 declaimed more powerfully when indignation 
 was to be aroused or the feelings moved. His 
 language was choice and pure ; his powers of in- 
 vective resembled rather the grave authority with 
 which the judge puts down a contempt, or pun- 
 ishes an ofEender, than the attack of an advocate 
 against his adversary and equal. His imagina- 
 tion was the minister whose services were rarely 
 required, and whose mastery was never for an in- 
 stant admitted. His sarcasm was tremendous, 
 nor always sparingly employed. His manner was 
 perfect, in voice, in figure, in a countenance of 
 singular beauty and dignity ; nor was any thing 
 in his oratory more striking or eifective than the 
 heart-felt sincerity which it throughout displayed, 
 in topic, in diction, in tone, in look, in gesture." 
 Romilly's face, as depicted by Sir Thomas Law- 
 rence, was indeed strikingly beautiful, his pure, 
 unblemished soul, his humane and merciful heart, 
 and his lofty intellect, shining in every lineament. 
 Of his conduct of a legal argument we get an 
 excellent account in Robinson's Diary : " He read 
 
124: EoMILLY. 
 
 from the printed statement, in the most unimpres- 
 sive manner, the simple facts, adding scarcely an 
 observation of his own. I followed at some 
 length, not comprehending the course taken by 
 my excellent leader. * * * Then Sir Sam- 
 uel Ivomilly replied in a most masterly manner. 
 I never heard a more luminous and powerful ar- 
 gument. He went over the ground I had trod, 
 but I scarcely knew my own arguments, so im- 
 proved were they. Judgment was ultimately 
 given in our favor. I have since understood that 
 it was Sir Samuel's practice, when he had the re- 
 ply, to open the case in this way, and not even to 
 read the brief before he went to court, knowing 
 that his junior and adversaries would give him 
 time enough to become master of the facts and 
 settle his argument." Others have said that he 
 never indulged in sarcasm or invective except 
 when he believed them to be deserved; he 
 thought any other practice unjustifiable. 
 
 But Romilly's fame mainly depends on his 
 efEorts to reform the criminal code. His thoughts 
 were first practically directed to this subject by 
 Dr. Madan's " Thoughts on Executive Justice," 
 published in 1T85, in which the writer urged a 
 stricter execution of the criminal laws, and which 
 was followed by a great increase in the number 
 of capital punishments. To this work Komilly 
 published an answer, and from that day to the 
 
EOMILLT. 125 
 
 end of his life his all-absorbing idea was to ameli- 
 orate the criminal laws. It must not be forgotten 
 that he was likewise one of the most strenuous 
 advocates for the abolition of the slave trade. 
 
 To gain an adequate idea of what the world 
 owes to Romilly, it is necessary to consider the 
 state of the criminal code of Great Britain in 1800. 
 From the Restoration to the death of George the 
 Third, — a period of 160 years, — no less than 187 
 capital offenses were created. In the reign of 
 George the Second, 33 acts were passed creating 
 capital offenses ; in the first fifty years of George 
 the Third, no less than 63. Among others, steal- 
 ing, privately in a shop, goods to the amount of five 
 shillings, and stealing to the amount of forty 
 shillings in a dwelling-house, or on board vessels 
 in navigable rivers, were capital. In 1785, no 
 fewer than 97 persons were executed in London 
 for the first offense alone, — 20 at one time. 
 In 1816, there was a child under ten years of age, 
 in IS^ewgate, under sentence of death for this 
 offense. In three years ending 1820, the execu- 
 tions in England and "Wales amounted to 312; 
 from 1820 to 1830, there were 797 in England 
 alone. Coining was punishable by hanging and 
 burning ; high treason by disemboweling the con- 
 vict while yet alive, and then beheading and 
 quartering him ; soldiers and mariners found beg- 
 ging were capitally punished ; soldiers deserting 
 
126 E.OMILLY. 
 
 were flogged, sometimes to death ; trial by Ijattle 
 was still preserved on the statute book ; so late as 
 1811, a bill was passed punishing with death the 
 offense of maliciously breaking lace frames ! Pris- 
 oners were allowed no counsel. Such were a few 
 of the enormities of this monstrous code. A few 
 " visionaries," like Dr. Johnson, Blackstone, Ben- 
 tham, Beccaria and Montesquieu, denounced them, 
 but Eldon and Ellenborough sternly resisted every 
 attempt at amelioration. One great lawyer 'said 
 that to change the punishment for high treason 
 would be to remove one of the pillars of the con- 
 stitution ! The consequence was that crimes went 
 unpunished. Men forbore to prosecute, juries 
 shrank from convicting, judges recommended to 
 mercy, sentences were unexecuted. In 1816, in 
 England there were 104 convictions of forgery 
 on the Bank of England, and only 18 executions ; 
 in 1820, there were 352 convictions and 21 execu- 
 tions ; and yet in the former year there were 
 17,885 forgeries on the bank, and in the latter, 
 29,035. The resumption of cash payments ex- 
 tinguished the small notes, which formed the 
 principal inducement to forgery, and, in 1823, 
 there were only 1,648 forgeries, 6 convictions, 
 and 2 executions. 
 
 Previous to Romilly's day there had been a 
 few sporadic efforts at mitigation of the criminal 
 laws, but they were totally unavailing. Pomilly 
 
EoMILLY. 127 
 
 was a reformer without being a fanatic; his human- 
 ity did not run away with his judgment. So in 
 1 808, when Scarlett advised him to attempt the 
 repeal at once of all the statutes which punished 
 with death mere thefts unaccompanied with any 
 acts of violence or other circumstances of aggra- 
 vation, he saw the hopelessness of the attemj)t, 
 and contented himself with the introduction of a 
 bill to abolish the death penalty for pocket-picking 
 to an amount not exceeding five shillings, and 
 carried it. This was the opening wedge. In 
 1813, he carried a like bill in respect to shop-lift- 
 ing, in the Commons, but it was rejected by the 
 Lords. Between these dates he had made vain 
 attempts to obtain like clemency in respect to other 
 thefts, and his successful efforts in the Commons 
 were defeated by the Lords. In 1811, when three 
 of his bills were thus rejected by the Lords, El- 
 lenborough declared " they went to alter those 
 laws which a century had proved to be necessai-y, 
 and which Avere now to be overturned by specula- 
 tion and modern philosophy," and Eldon recog- 
 nized " the wisdom of the principles and practice 
 by which our criminal code was regulated." In 
 1816, the shop-lifting bill again passed the Com- 
 mons, but was again thrown out in the Lords. 
 From that time forth until his death he struggled 
 in vain to overcome the bigotry of the ministers 
 and lawyers. Macintosh, Brougham, Campbell, 
 
128 EOMILLY. 
 
 and others, took up the cause, and finally won a 
 substantial triumph. It was not till 1836 that 
 prisoners charged with felony were allowed 
 counsel ; hanging in chains was not abolished till 
 1834 ; the death penalty for coining was not 
 abrogated till 1832 ; the pillory was condemned in 
 1837; and about the same time the barbarous 
 iisage of executing the capital sentence in forty- 
 eight hours after conviction was broken down. 
 Between 1810 and 1845, upward of 1,400 persons 
 suffered death for crimes which have since ceased 
 to be capital. 
 
 ISTor were Romilly's reformatory labors re- 
 stricted to the matters above reviewed. He 
 labored against military flogging, the game laws, 
 the poor laws, the laws of libel, and lotteries, the 
 employment of spies and informers, the persecu- 
 tion of protestants in France, the alien bill, the 
 corn laws ; and in favor of catholic emancipation, 
 the education of the poor, the liberty of the press, 
 change in popular representation, the free exer- 
 cise of the elective franchise, shortening the du- 
 ration of parliaments, promulgating the laws, in- 
 demnifying those unjustly accused, providing 
 public prosecutors, and enlarging the rules of 
 evidence. 
 
 The nobility of Eomilly's aspirations breathes 
 throughout his Diary and Memoirs. He thus 
 
EOMILLY. 129 
 
 concludes a prayer, on the last page of his MS. 
 Diary, after thanking the Almighty for his mer- 
 cies and lavish gifts to him : " I prostrate myself, 
 O Almighty and omniscient God, before Thee. In 
 endeavoring to contemplate Thy divine attrib- 
 utes, I seek to elevate my soul toward Thee ; I 
 seek to improve and ennoble my faculties, and to 
 strengthen and quicken my ardor for the public 
 good ; and I appear to myself to rise above my 
 earthly existence, while I am indulging the hope 
 that I may at some time prove an humble instru- 
 ment in the divine work of enlarging the sphere 
 of human happiness." Among his papers were 
 found the following " Memoranda of Things to be 
 done on entering into Office," as chancellor : " 1. 
 To keep lists of persons qualiiied for the differ- 
 ent offices in my appointment, and to designate 
 in my own mind who shall succeed upon the first 
 vacancy ; to avoid the evil of the offices remain- 
 ing long vacant, and to prevent solicitation of 
 candidates. 2. To find out and bring forward 
 talents wherever they can be found ; in doing this 
 to disregard rank and family, and places of educa- 
 tion, and above all to divest myself of all consid- 
 eration of personal favor. 3. Invariably to ap- 
 point to offices the men who are most fit to fill 
 them ; to do this in every profession and in every 
 department of the State. 4. In the church to 
 17 
 
130 ROMILLY. 
 
 consider those as best qualified to advance the 
 interests of true religion and of the State, who 
 entertain the most liberal opinions; not those 
 who consider the religious order as a kind of cor- 
 poration, as a profession which has its own par- 
 ticular interests to consult, and between which 
 and the laity there should be kept up, as it were, 
 a continual struggle. 5. To promote and improve 
 public education in all orders of society. 6. To 
 reform public grammar schools. '1. To reform the 
 universities, and establish in them new professor- 
 ships." In a codicil to his will, he leaves direc- 
 tions for the publication of a work on Criminal 
 Law out of materials which he had amassed, and 
 observes : " That such a publication may be in- 
 jurious to my reputation as an author or 'a lawyer, 
 I am quite indifferent about ; if it can be any way 
 useful, that is all I desire." This task he imposes 
 upon "my friend, Mr. Brougham, who finds 
 time for any thing that has a tendency to the ad- 
 vancement of human happiness." 
 
 It has been said that Romilly was a severe 
 judge of other men. He certainly was of him- 
 self, for he alone of all men doubted his ability 
 to fill a judicial position. His manners were 
 simple and unaffected. In his family and in 
 societj' he was natural, amiable, and cheerful. In 
 spite of his manifold duties, he found time to read 
 
KOMILLY. 131 
 
 every contemporaiy publication of importance, 
 wiiether Englisli or Frencli. He possessed a cul- 
 tivated taste in the fine arts, and himself drew 
 with more than ordinary power. His love of 
 female society was somewhat remarkable ; he 
 himself said: "There is nothing, indeed, by 
 which I have through life more profited, than 
 the just observations, the good opinion, and the 
 sincere and gentle encouragement of amiable and 
 sensible women. His marriage was most happy, 
 and his attachment to his home was remarkable 
 even among the most home-loving of people. The 
 tributes which he pays in his memoirs to his 
 wife's virtues are most touching ; and her loss, 
 after twenty years unbroken harmony, was more 
 than his sensitive nature could endure. In his 
 death, inflicted by his own hand in a fit of delir- 
 ious grief for his companion's departure, the 
 world has found nothing to censure, every thing 
 to regret. 
 
 It is quite in accordance with the eternal fit- 
 ness of things, that the pure and exalted character 
 of Romilly should have escaped the lash of the 
 libeler and the sting of the satirist, except in the 
 single instance of Lord Byron's poem of Don 
 Juan. That the only libel on Eomilly shovdd 
 have been written by the most profligate man 
 in the most depraved poem of this cefitury, 
 
132 EoMILLY. 
 
 speaks volumes to tlie sanctity of his character. 
 If any proof were wanting to demonstrate the 
 utter malignancy and wickedness of Byron's 
 heart, it will be found in this stanza : 
 
 " Some women use their tongues — slie looked a lecture, 
 
 Each eye a sermon and her brow a homily. 
 An all-in-all sufficient self-director. 
 
 Like the lamented late Sir Samuel Romilly, 
 The Law's expounder, and the State's corrector, 
 
 Whose suicide was almost an anomaly — 
 One sad example more that ' all is vanity,' 
 
 (The jury brought their verdict in ' Insanity ')." 
 
 Byron's excuse for this diabolical fling makes it 
 all the worse, and gives it the character of re- 
 venge, for he elsewhere writes : " I recollect, 
 however, that having been much hurt by Eomil- 
 ly's conduct — (he, having a general retainer for 
 me, had acted as adviser to the adversary, alleg- 
 ing, on being reminded of his retainer, that he 
 had forgotten it, as his clerk had so many) — I 
 observed that some of those who were now so 
 eagerly laying the axe to my roof-tree, might see 
 their own shaken, and feel a portion of what 
 they had inilicted. His fell, and crushed him." 
 And again he writes : " I have at least seen 
 Komilly shivered, who was one of my assassins. 
 When that man was doing his worst to uproot 
 my whole family, tree, branch, and blossoms, — 
 when after taking my retainer he went over to 
 them — when he was bringing desolation on my 
 household gods — did he think, that in less than 
 
EOMILLY. 133 
 
 three years, a natural event — a severe, domestic, 
 but an unexpected and common calamity — would 
 lay liis carcass in a cross-road, or stamp his name 
 in a verdict of lunacy ! " The records of litera- 
 ture contain nothing else so devilish as this. 
 Truly, it would be charity toward Byron if we 
 could " stamp his name in a verdict of lunacy ! " 
 The author of The Bar pays this touching tribute 
 to Eomilly's memory : 
 
 " But where is he, now wanting in liis place. 
 Whose speaking eye and dark expressive face. 
 And sombre melanclioly air combined. 
 Announced an index of no common mind ? 
 A mind, wliich like sor.ie vast museum shown 
 With boundless treasures — not together thrown 
 In one chaotic mass — but where, restrained, 
 Variety without confusion reigned. 
 Possessing, with perceptions clear and strong, 
 A sense intuitive of right and wrong, 
 Quick and sagacious to detect the place 
 Where lay the strength or weakness of a case ; 
 And ever prompt to keep, with judgment true. 
 The means proportioned to the end in view. 
 Viewing the field of war with jealous eye, 
 Certain each latent error to descry. 
 Like an old soldier, ere the fight began, 
 He laid his schemes to thwart his rival's plan ; 
 And when he found, involved in mist and doubt, 
 That rival, vainly struggling to get out. 
 By various ways he sent his legions round. 
 All hostile calculations to confound ; 
 Attacked him point by point, and unawares. 
 Drove or inveigled him into his snares. 
 Till panic-struck the foe was forced to yield, 
 And leave him fairly master of the field. 
 
 But oh ! to law's dull trammels not confined,^ 
 Shone the great powers of that enlightened mind ; 
 Nor kept restricted to one gloomy part, 
 Were the warm feelings of that manly heart ; 
 Wisdom was there, adorned with classic grace. 
 
134 ROMILLT. 
 
 And there each heaven-born virtue found a place ; 
 Humanity, within his generous breast, 
 And kind compassion, found a place olE rest ; 
 And sacred love of freedom's holy cause, — 
 Freedom, that yields to nothing but the laws. 
 Who in this portrait can such features see. 
 And not at once discover Romilly ? " 
 " Lamented Romilly ! though low thou'rt laid. 
 In the dark tomb amongst the mighty dead ; 
 Yet not forgotten do thine ashes sleep. 
 There friendship lingers long, and loves to weep ; 
 There gratitude and pity oft attend. 
 And sad misfortune mourns her truest friend. 
 Fair freedom to thy memory drops a tear. 
 And sainted honor weeps a pilgrim there ; 
 Their sacred sympathy embalms thy name. 
 And consecrates thy worth to deathless fame." 
 
 It is a delightful occupation to contemplate a 
 character which by the common consent of man- 
 kind is faultless. The human heart pays an 
 instinctive homage to lives regulated by princi- 
 ple. The existence of such characters as Wash- 
 ington, Howard, and Komilly, and the admiration 
 of mankind for them, demonstrate that human 
 nature is not ■ utterly or naturally bad. A life 
 passed in the midst of temptation and selfishness, 
 but spent in the unselfish pursuit of doing good 
 to others, is an example which men reverence 
 and which angels may bend to admire. The 
 career of Romilly is most significant to our pro- 
 fession. If the moral influence of the pursuit of 
 our profession is assailed ; if men shall say that 
 advocacy destroys the power of discriminating 
 between right and wrong, attenuates while it 
 sharpens the intellect, and contracts the sweet 
 
RoMILLY. 135 
 
 sympathies of the heart, — we can point to Samuel 
 Eomilly, and detraction is silenced. "We can say, 
 there is one of the few blameless characters in 
 history, — a perfect lawyer, an ideal statesman, a 
 spotless man. It must ever be regretted that a 
 life of such sanctity and usefulness could not have 
 been spared to bless our race. " True, he would 
 at length, in the course of nature, have ceased to 
 Hve," says that one of his contemporaries most 
 nearly approaching him in combined capacity 
 and virtue, "but then the bigot would have 
 ceased to persecute, the despot to vex, the deso- 
 late poor to suffer, the slave to groan and trem- 
 ble, the ignorant to commit crimes, and the 
 ill-contrived law to engender criminality." " No 
 statues are erected to his memory," says another ; 
 " no titles descend to his children ; but he has 
 bequeathed a richer, a prouder, and a more last- 
 ing inheritance than any which the world can 
 bestow; the recollection of his virtues is still 
 fresh in the minds of his countrymen, and the 
 sacrifices he made in the cause of humanity will 
 not be forgotten by mankind." 
 
SOAELETT, LORD ABII^GER. 
 
 OONSIDEKIlSrG that he was the leader of the 
 English bar in his day, attorney-general, a 
 peer in Parliament, and a chief judge for ten 
 years of one of the great courts of justice, the 
 materials for a biographical sketch of James Scar- 
 lett, Lord Abinger, are singularly meagre and un- 
 satisfactory. Chronologically, he comes between 
 Erskine and Brougham. Born nine years before 
 Brougham, and dying twenty-four years before 
 him, both passed through the great eras of the 
 French revolution and the civil reform in Eng- 
 land. Of good birth and liberal education, of 
 handsome person, acute understanding, and large 
 oratorical powers, he devoted himself to the pro- 
 fession of advocacy, leaving to others the loftier 
 and more dangerous paths of pu blic affairs. He 
 thus became the most considerable personage at 
 the bar of England for many years, was connected 
 with every important cause, and acquired an in- 
 fluence over juries that has never been equaled, 
 even by Erskine. 
 
 Scarlett seems in person and in talents to have 
 been the ideal of an advocate. The Countess of 
 
Scarlett, Loed Abinube. 137 
 
 Blessington says his countenance "has in it a 
 happy mixture of sparkling intelligence and good 
 nature." Shiel, in speaking of his presence at a 
 dinner given by Brougham, says : " I thought I 
 could perceive the wile of a lawyer in his watch 
 f ul and searching eye. His smile, too, was per- 
 haps a little like that of Cassius." He was not a 
 man of genius, and he always had the tact to 
 subordinate himself to the occasion. The end 
 and aim of his life was to get verdicts. He al- 
 lowed no personal considerations to interfere with 
 'that. JSTone of the irregularities of an Erskine 
 or a Brougham scared, away attorneys nor en- 
 dangered their causes. One biographer says of 
 him : " He had an intelligent air and a prepos- 
 sessing appearance. He had one of those com- 
 pact, business-looking faces, that look well with a 
 wig. Sir James, moreover, had an appearance of 
 confidence in himself which begets a feeling of 
 confidence in others. He had a twinkling ex- 
 pression of sagacity in his look, and a humorous 
 aspect, which told amazing with juries. He had 
 above all, a discriminative knowledge of human 
 nature, and a keen perception of character, which 
 enabled him to deal with juries and jurors indi- 
 vidually and collectively, that gave him a singular 
 advantage over other advocates in addressing 
 himself to the feelings, interests, biases, and pre- 
 possessions of people in a jury box. The con- 
 18 
 
138 SCAELETT, LOED AbINGEE. 
 
 snmmate art of his advocacy was exhibited in 
 sinking the professional character of the advocate, 
 elevating the merits of his case, adapting his sug- 
 gestions and inferences to the prevailing opinions 
 or prejudices of the jury, and appearing before 
 them in an easy, nonchalent manner, speaking 
 colloquially of a matter that he happened to be- 
 come conversant with, enlarging on points useful 
 to his case without any apparent sophistry, or 
 slurring over others that were hurtful to it in a 
 way the least calculated to draw obsei'vation to^ 
 the astuteness practiced in tiding over the difBcul- 
 ties he had to deal with. ' He abstained from all 
 attempts at oratorical display." It must not be 
 inferred from this that he was incapable of the 
 loftier flights of oratory. Occasionally, when his 
 business would be promoted by it, he achieved 
 oratorical triumphs not unworthy of Erskine. 
 Coleridge said : " I think Sir James Scarlett's 
 sj)eech for the defendant, in the late action pf 
 Cohbett v. The Times, for a libel, worthy of the 
 best ages of Greece or Rome ; though to be sure, 
 some of his remarks could not have been very 
 palatable to his clients." Jay says of him : " He 
 had, in his hale and cheerful appearance, and in 
 his bland manners, the look of an English country 
 gentleman, but not that of a lawyer. He was al- 
 ways particularly well-dressed. In his character 
 as an advocate, his voice poured forth a sti-eam of 
 
Scarlett, Loed Abingee. 139 
 
 language and argument, which, whilst it afforded 
 to the listeners exquisite delight, appeared to 
 come from him without labor or exertion." "His 
 style was colloquial; he talked-over the jury, 
 never bullied, nor attempted, like his great antag- 
 onist, Mr. Brougham, to wring verdicts, and force 
 them, reluctant and terrified, to do his bidding. 
 His bearing toward them was bland and respect- 
 ful ; he took care never to alarm with the fury of 
 rhetoric." And yet. Jay says, he heard him 
 make two of the most eloquent speeches he ever 
 listened to. A writer in the Britannia gives 
 the following graphic description of Scarlett's 
 manner : 
 
 " A spectator unacquainted 'witli the courts might have 
 supposed that anybody rather than the portly, full-faced, 
 florid man, who was taking his ease on the comfortable 
 cushions of the front row, was the counsel engaged in the 
 cause. Or if he saw him rise and cross-examine a witness, 
 he would be apt to think him certainly too indolent to at- 
 tend properly to his business, so cool, indifferent, and appar. 
 ently unconcerned was the way in which the facts which 
 his questions elicited were left to their fate, as though it 
 was of no consequence whether they were attended to or 
 not. Ten to one with him that the plaintiff's counsel 
 would get the verdict, so clear seemed the case and so 
 slight the opposition. But in the course of time the de- 
 fendant's turn would come ; and then the large-headed, 
 ruddy-faced, easy-going advocate would rise slowly from 
 his seat, not standing quite upright, but resting on his left 
 hand placed upon the bar, and turning sideways to the jury 
 to commence the defense of his client. Still the same un- 
 pretending noncTialent air was continued ; it almost seemed 
 
140 SCAELETT, LOED AbINGEE. 
 
 too great an exertion too speak ; the chin of that ample 
 face rested upon the still more ample chest, as though the 
 motion of the lips alone would he enough for all that might 
 have to be said. So much for the first impression. A few- 
 moments' reflection sufl&ced to dispel the idea that indo- 
 lence had any thing to do with the previous quiescence of 
 the speaker. Now it became clear that all the while he 
 seemed to have been taking his ease bodily, he had been 
 using his powers of observation and his understanding. 
 That keen gray eye had not stolen glances at the jury, nor 
 at the witnesses either, for nothing. Nor had those aban- 
 doned facts, drawn out in cross-examination, been unfruit- 
 ful seeds, or cast in barren places. Low as the tone of voice 
 was, it was clear and distinct. It was not a mere organ of 
 sound, but a medium of communication between the mind 
 of the advocate and the minds of the jury. Sir James 
 Scarlett did not attempt, like Denman or Brougham, to 
 carry the feelings of a jury by storm before a torrent of in- 
 vective or of eloquence ; nor was there any obvious soph- 
 istry, such as occupied too large a space in the speeches of 
 Campbell or Wilde ; it was with facts — admitted, omitted 
 or slurred over, as best suited his purpose — and with in- 
 ferences made obvious in spite of prepossessions created by 
 the other side, that this remarkable advocate achieved his 
 triumphs. Nor that he refused to avail himself of the 
 prejudices which his knowledge of character and experi- 
 ence of juries enabled lym to detect the existence of with 
 almost unerring accuracy. The skill he displayed con- 
 sisted in the adaptation of his suggestions and inferences 
 to those prejudices. But he never indulged in that parade 
 of his mystifying power, which is so often apparent in the 
 speeches of even the most distinguished advocates of the 
 bar. He was not satisfied unless he made the j ury parties 
 (and that with confidence in their own sagacity) to their 
 own self-deception. Watchfulness, prudence in the man- 
 agement of a case, great moral courage in the choice or 
 
ScAELE'lT, LoED AbESTGEB. 141 
 
 rejection of the means to be used on belialf of a client, 
 experience of liuman nature, and great self-denial in the 
 exhibition of that experience — these were the chief agen- 
 cies by which he acquired his ascendancy over juries." 
 
 A writer in the Lcmdon Magazine thus de- 
 scribes Scarlett's powers : 
 
 " Mr. Scarlett, the present leader of the Court of King's 
 Bench, has less brilliancy than his predecessor, but is per- 
 haps not essentially inferior to him in the management of 
 causes. He studiously disclaims imagination ; he rarely 
 addresses the passions ; but he now and then gives indica- 
 tions of the success with which he has disciplined a 
 mind of considerable elegance and strength to nisi prius 
 uses. In the fine tact of which we have already 
 spoken, the intuitive power of common sense sharpened 
 within a peculiar circle, he has no superior, and per- 
 haps no equal. He never betrays anxiety in the crisis 
 of a cause, but instantly decides among complica- 
 ted difficulties, and is almost always right. He can 
 bridge over a nonsuit with insignificant facts, and tread 
 upon the gulf steadily, but warily to the end. What John- 
 son said of Burke's manner of treating a, subject is true 
 of his management of a cause, ' he winds himself into it 
 like a great serpent.* He does not take a single view of it 
 or desert it-when it begins to fail, but throws himself into 
 all its windings, and struggles in it while it has life. 
 There is a lucid arrangement, and sometimes a light vein 
 of pleasantry in his opening speeches ; but his greatest 
 visible triumph is in his replies- These do not consist of a 
 mere series of ingenious remarks upon confiicting evi- 
 dence ; still less of a tiresome examination of the testi- 
 mony of each witness singly ; but are as finely arranged 
 on the instant, and thrown into as noble and decisive 
 masses, as if they had been prepared in the study. By a 
 vigorous grasp of thought, he forms a plan and an outline 
 
142 SCAKLETT, LOED AbINGER. 
 
 which he first distinctly marks, and then proceeds to fill up 
 with masterly touches. When a case has been spread over 
 half a day, and apparently shattered by the speech and 
 witnesses of his adversary, he will gather it up, condense, 
 concentrate, and render it conclusive. He imparts a weight 
 and solidity to all that he touches. Vague suspicious be- 
 come certainties, as he exhibits them ; and circumstances 
 light, valueless, and unconnected till then, are united to- 
 gether, and come down in wedges which drive conviction 
 into the mind." 
 
 Sir James was a very proud, arrogant, and sar- 
 castic man. Jay relates, that on one occasion, 
 when the advocate was apparently very much ex- 
 hausted by his exertions, a poor barrister, not 
 very clean either in his attire or hands, offered 
 him a sandwich out of a dirty piece of paper, and 
 Sir James, instead of thanking tiie poor gentleman 
 for the act of attention, gave him a contemptuous 
 look, without deigning to speak a word to him. 
 A writer in the Law Magazine speaks of " the 
 very fastidiousness of his manner and the refined 
 haughtiness of deportment, which seemed to dis- 
 charge all attempts at intimacy on the part of 
 those not quite on a par with him in the world." 
 His arrogance was so great that he could not sub- 
 mit to correction. Th'us, on one occasion, he as- 
 serted that the words " of and concerning " were 
 in the information, and Brougham was confi- 
 dent they were not. A reference to the record 
 showed that Brougham was correct. "Whereupon 
 
SCAELETT, LOED Aj3INGEE. 143 
 
 Scarlett said : " It was so in my copy ; I was 
 equally confident with you." "Yes," answered 
 Brougham, " but there was this difference : I was 
 confident and right; you were confident and 
 wrong." He was complained of for his haughty 
 treatment of his jurors, and so great was his li- 
 cense and severity that he was once sued for slan- 
 der on account of words uttered by him in court 
 as an advocate. The case was Hodgson v. Sca/r- 
 lett, IB. & A. 232, and settles the important 
 principle that where the matter is pertinent, 
 counsel may with impimity be impertinent. The 
 defendant had accused the plaintiff with ■ being 
 '■ a fraudulent and wicked attorney." Although 
 Judge Bailey thought the expression " harsh," and 
 EUenborough said that " in the exercise of a can- 
 dor fit to be adopted, it might have been spared," 
 yet as no malice was shown, and the matter was 
 pertinent to the issue, this action would not lie. 
 
 An example of Scarlett's offensive and over- 
 bearing treatment of witnesses is afforded in his 
 cross-examination of Grrimaldi, the famous clown, 
 as given in Dickens' life of Grimaldi. " Sir James 
 Scarlett commenced his examination by saying, 
 ' Dear me ! pray, sir, are you the great Mr. Grim- 
 aldi, formerly of Covent Garden Theater ? ' The 
 witness reddened, and replied, 'I used to be a 
 pantomime actor, sir.' Sir James paused a few 
 seconds, and, looking up in his face, said, ' And 
 
144 ScABLETT, Lord Abingbe. 
 
 so you really are Grimaldi, are you ? ' The wit- 
 ness got redder and redder. ' Pray, don't blush, 
 Mr. Grrimaldi, there is not the least occasion for 
 it,' said Sir James. This, of course, made Grim- 
 aldi blush more and more, although he replied, 
 ' I'm not blushing, sir.' The spectators tittered, 
 and Sir James, smiling blandly, said, ' I assure you, 
 Mr. Grimaldi, that you are blushing violently.' 
 Grimaldi was angry and nervous, but he had his 
 wits about him, and replied, ' I beg your pardon, 
 sir, but you are really quite mistaken. The flush 
 which you observe on my face is a Scarlett one, 
 I admit, but I assure you that it is nothing more 
 than a reflection from your own.' The people 
 shouted with laughter, and Sir James bantered 
 the -yvitness no more." It is easy to see who was 
 the " clown " on this occasion. But, in spite of 
 the occasional offensiveness of his public bearing. 
 Sir James was an amiable and afEectionate man 
 in private. He "flung off the growl with the 
 gown," and realized Shepherd'' s words in the 
 Noctes: "Amai'st a' the lawyers I ken in the 
 Parliament House are excellent domestic charac- 
 ters — that is to say, far f rae being the dour 
 deevils you wad suppose aforehann from hearin' 
 them guUorin at the bar, and flitin' on ane an- 
 ither, like sae mony roudies." Lawyers and act- 
 ors deserve great praise for being good-tempered 
 and affable in private, and it must be claimed for 
 
 h 
 
ScAELBTT, Lord Ablngee. 145 
 
 our profession that they are the " best fellows " 
 in the world. 
 
 Sir James, in his younger days, was very gal- 
 lant and tender to the ladies. Perhaps the most 
 amusing electioneering appeal ever issued is the 
 following written by him, on behalf of himself 
 and another candidate for the House of Com- 
 mons, in 1832 : 
 
 " To the ladies of Norwicli. ' None but the brave de- 
 serve the fair.' If ever the sweets of social virtue, the 
 wrath of honest zeal, the earnings of industry, and the 
 prosperity of trade, had any influence in the female breast, 
 you have now a happy opportunity of exercising it to the 
 advantage of your country, — • your cause. If ever the feel- 
 ings of a parent, wife, sister, friend, or lover had a sympa- 
 thy with the public virtue, now is your time to indulge the 
 fonder passion. If ever you felt for the ruin and disgrace 
 of England, and for the miseries and deprivations occa- 
 sioned by the obnoxious Reform Bill, you are called upon 
 by the most tender and affectionate tie in nature to exert 
 your persuasive influence on the mind>of a father, brother, 
 husband, or lover ; tell them not to seek filial duty, con- 
 genial regard, matrimonial comfort, nor tender compliance, 
 till they have saved your country from perdition ! — pos- 
 terity from slavery I History furnishes us with Instances 
 of female patriotism equal to any in the page of war and 
 politics. Oh, may the generous and beatific charms of fe- 
 male persuasion prevail with the citizens of Norwich to 
 espouse the cause of real liberty — of 
 
 " Stoemont and Scarlett." 
 
 None' but a handsome man would have dared 
 make such an appeal, and it produced the desired 
 19 
 
146 SOABLETT, LOED AbINGEE. 
 
 effect. Sir James was elected, and posterity was 
 safe. But when Sir James became Lord Abin- 
 ger, and chief baron of the Court of Exchequer, 
 he seems to have abated somewhat of his tender- 
 ness for the fair sex. In the case of Atkins v. 
 Gurwood, T C. & P. Y59, the court held that the 
 defendant, a poor barrister, was not bound for 
 sundry dry goods, to the amount of £67, ordered 
 by his wife as an outfit for a watering-place, 
 whither her husband had forbidden her going ; 
 and in pronouncing judgment Lord Abinger ex- 
 claimed, "Let the wedding-dresses be struck 
 off ! " Such is the ingratitude of mankind. How 
 could Sir James reconcile such a command with 
 the " safety of posterity ? " Again, in Zane v. 
 Ironmonffer, 13 M. & W. 368, his lordship de- 
 clared that bonnets, laces, feathers, and ribands, 
 to the amount of only £5,287 in part of a year, 
 were extravagant! Sir Jaraes was not then a 
 candidate for office, or Mrs. Curwood and Mrs. 
 L'onmonger were not Norwich ladies. When he 
 was at the bar, he was counsel for a Mr. Cole, 
 defendant in a breach of promise case, and it is 
 said, resisted the introduction in evidence of cer- 
 tain letters written by his client, on the ground 
 that they were not stamped ! "Whereupon a young 
 counsel made the following impromptu : 
 
SCAKLETT, LOED AbINGEE. 147 
 
 " If requests sucli as these in the Pleas are admitted. 
 Our fair countrywomen will quite be outwitted, 
 Unless in their reticules blank stamps they carry, 
 And take a receipt for each kiss till they marry." 
 
 Abinger's merits as a judge can be summed up 
 by saying that he was sensible, rapid, accurate, 
 and impartial. He distinguished himself neither 
 on the bench nor in Parliament. He was a conser- 
 vative by nature and in politics, and yet was not a 
 bigot, for he was not averse to a moderate degree 
 of reform and to religious toleration. Early in 
 life he supported Macintosh and Komilly's efforts 
 to mitigate the Draconian severities of the crimi- 
 nal code. We even find, in Henry Crabbe Rob- 
 inson's diary, that when the diarist visited Ire- 
 land, a public dinner was given him,, at which a 
 toast was drank to " Mr. Scarlett, and the liberal 
 members of the English bar." After this he was 
 accused of having "ratted." Aside from this, 
 nothing seems to have been said against him, 
 and not much for him. The biographer of the 
 Countess of Blessington informs us that he had 
 a fine taste in literature, and especially in the clas- 
 sics, and indeed his letters to the Countess indi- 
 cate it. His private life appears to have been ex- 
 emplary, and he does not seem to have been ava- 
 ricious, for his estate was sworn under £18,000. 
 Queerly enough, his will was informally executed. 
 The best character ever drawn of him is by the 
 author of The Bar, as follows : 
 
148 SuAELE'rr, Loed Abdstgee. 
 
 " Behind Ms brief-ba^ — an enoimous pile — 
 Lo ! Scarlett, blooming with perennial amile, 
 A bold ambitious candidate for fame, 
 Who early on her list enrolled his name, 
 And from that moment made his passions bend. 
 And all bis powers to compass one great end." 
 
 " Hark ! when he rises to expound his case, 
 A buzz of approbation fills the place. 
 
 ' Look what a handsome lawyer !' goes around. 
 While notes of admiration much abound. 
 That such a rara avis can be found." 
 
 " But hush ! the cause begins, or grave or gay, 
 Smiling he starts — smiling pursues his way. 
 O'er rough or smooth he glides, ot pro or con, 
 And though not shallow, still runs dimpling on ; 
 Yet as the subject swells, the interest grows. 
 His eloquence with greater volume flows, 
 
 ' Though deep, yet clear, though gentle, yet not dull, 
 Strong without rage, without o'erflowing, full,' 
 Sweeping before him with resistless force. 
 All that obstructs his proud triumphant course. 
 Clear-sighted, eloquent, acute, refined. 
 No point escapes his penetrating mind. 
 And while his rival from the broad highway. 
 The wavering judgment strives to lead away, 
 And like a will-o'-wisp, now in, now out. 
 Involves the light of truth in mist and doubt. 
 Moving the mind's all-powerful lens at will. 
 To one bright focus with consummate skill. 
 And, matchless art ! he draws the scattered rays 
 Before the jury in one brilliant blaze. 
 Who, as the clouds and fogs all disappear, 
 Fancy they see their way as daylight clear. 
 He sees the flattering dream, and ere they wake, 
 Lulls and confirms them in the fond mistake. 
 And when their self-love's wound up to the top. 
 Has the rare gift of knowing when to stop. 
 So when in perilous seas, 'midst hopes and fears. 
 His dubious course the skillful seaman steers. 
 He marks the sunken rocks and shelving shores. 
 And every bay and winding creek explores. 
 Careful, unseen where lurking dangers throng, 
 To keep true sounding as he moves along. 
 Till clear, he finds good sea-room once again, 
 And fioats exulting on the boundless main. 
 Then, while some rival, lagging far behind. 
 
ScAELE'lT, LoKD AbINGEE. 149 
 
 Misses his track, and drives before the wind, 
 
 Or worse, neglecting as he drifts to sound, 
 
 In spite of helm or compass, runs aground ; 
 
 He spreads his swelling sail with conscious pride. 
 
 And scuds triumphant, both with gale and tide. 
 
 Leaves the sad wreck, of winds and waves the sport. 
 
 And lands his precious cargo safe in port. 
 
 Yet, trust me, Scarlett's not in fact or law, 
 
 ' That faultless monster which the world ne'er saw,' 
 But has, partaking of the common lot. 
 His failings and faults — as who has not ? 
 Keen and astute, to biting satire prove, 
 His spirit oft assumes a hostile tone. 
 And while you study for the cause in vain. 
 Inflicts a wound regardless of the pain. 
 But should some luckless scrivener, hapless wight I 
 Incur his high displeasure, wrong or right. 
 Then on the trembling slave's devoted head 
 With double vengeance falls his anger dread. 
 As savages who take a captive foe, 
 Ne'er kindly immolate him at a blow, 
 But while a gasping breath of life remains. 
 Kill him by inches to prolong his pains, 
 With tortures strange, and cruelties refined, 
 So he, beyond endurance, racks the mind. 
 Tears every nerve, draws blood at every pore. 
 Till fortitude expires, and nature can no more, 
 
 ' What !' some old practical limb is apt to cry. 
 When such a ' roasting ' meets his curious eye, 
 
 ' Can all this diflference be betwixt a leader. 
 And an obliging smiling special pleader?' 
 I well remember at no distant time, 
 When Varro thought it neither sin nor crime, 
 To greet a friend with language soft and kind, 
 That won his his patient client's heart and mind. 
 But now behold ! when by their friendly aid. 
 His end is answered and his fortune made. 
 Up to the top of fame's proud height he goes. 
 Then kicks the ladder down by which he rose I 
 Gods ! can it be that a successful plan 
 Changes at once the nature of the man, 
 And can a sergeant's coif, or a silk gown, 
 Confer along with riches and renown. 
 The privilege to strike a man when down !" 
 
150 Scarlett, Lobd Abingee. 
 
 Abinger has not been celebrated by the poets. 
 He has however received attention from a novel- 
 ist. Bulwer, in Paul Clifford, introduces him 
 under the name of Scarlet Jein, in company with 
 a number of other public characters, at a flash 
 tavern, called the "Jolly Angler," describing 
 him as " one with a very red face, and a lusty 
 frame of body," and makes mine host thus dis- 
 course of him : " That, gentlemen, is Scarlet 
 Jem ; a dangerous fellow for a press, though he 
 says he likes robbing alone, for a general press is 
 not half such a good thing as it used to be for- 
 merly. Tou have no idea what a hand at dis- 
 guising himself Scarlet Jem is. He has an old 
 wig which he generally does business in; and 
 you would not go for to know him again when 
 he conceals himself under the loig. Oh, he's a 
 precious rogue, is Scarlet Jem ! " The allusion 
 to the '■^press^^ is explained by the fact that Sir 
 James, although he set out as a liberal, afterward 
 changed his political opinions, and incurred great 
 unpopularity by a crusade against the newspapers. 
 
 The life of this lawyer teaches us the evanes- 
 cent character of the celebrity of a mere advo- 
 cate. He addicted himself exclusively to advo- 
 cacy in the courts. He took little part in public 
 affairs. He cared little for mankind. His pow- 
 ers were absorbed in the business of getting ver- 
 dicts. Doubtless he despised the lofty aspira- 
 
Scarlett, Lord Abinger. 151 
 
 tioBS of Erskine and the versatile usefulness of 
 Brougham. He got the verdicts of his contem- 
 poraries away from Brougham, but which will 
 obtain the verdict of posterity ? "We must re- 
 cord him as we would an adept in operative sur- 
 gery, who has never invented an instrument or 
 devised a plan to facilitate his operations or 
 diminish their pain, in comparison with the dis- 
 coverer of anesthetic agents. He was a self-sat- 
 isfied man. He had reason to be satisfied with 
 his great success. But what self-satisfied man 
 was ever of any particular use to the world be- 
 yond the little moment of his own active life ? 
 He lived in the applause and secure from the 
 satire of his fellows, because there was nothing 
 positive and independent in his character to ex- 
 cite the animadversion of any one. He hid his 
 talent in a napkin. Although he lived in the 
 greatest era of civil reform, and belonged to a 
 profession whose proudest honor is to be cham- 
 pion of progress, liberty and amelioration, yet he 
 was unwilling to identify himself heartily in that 
 cause, and content to let others gain the glory of 
 it. He contributed nothing to the increment of 
 human knowledge or happiness. He sailed through 
 the ocean of human life, a proud and stately ship, 
 exciting admiration as he passed, but bearing no 
 useful burden, and leaving no track behind. 
 
BEOUGHAM. 
 
 TO attempt to convey an adequate idea of 
 Brougham in a short sketch is like trying 
 to crowd the oak back into its acorn, or compress 
 the ocean into a bucket. His character is so vast 
 and many-sided, and the materials for his biogra- 
 phy are so ample and various, that one may well 
 despair of success in the endeavor. His biogra- 
 pher has not only to portray a lawyer, but an 
 author, a philosopher, a scientist, a statesman, a 
 humanitarian, and a reformer. To give any sat- 
 isfactory account of his broad comprehension, his 
 brilliant wit, his vast learning, his enormous in- 
 dustry, his powerfiil oratory, his fearless inde- 
 pendence ; his vanity, eccentricity, simplicity, 
 generosity, and integrity ; his vaulting ambition ; 
 his gigantic triumphs at the bar and in the sen- 
 ate ; his permanent and valuable contributions to 
 art, science, and literature ; his magnificent 
 achievements in the causes of human liberty, 
 charity and education, and above all in the ref- 
 ormation of the law, requires volumes rather 
 than an essay. Born while the American colo- 
 
Brougham. 153 
 
 nies were struggling for independence, he did not 
 pass away from earth until the abolition of Amer- 
 ican slavery was a fixed fact. He was the most 
 extraordinary character and the greatest genius, 
 in civil life, of the nineteenth century, and in 
 what he achieved and in what he attempted 
 but one other man can be compared with him. 
 Brgugham was as great in peace as Napoleon in 
 war. 
 
 Brougham was possessed of a marvelous energy 
 and versatility. Unlike many other great men, 
 he made the period of his retirement from oflfi.ce 
 the most «.seful of his life. Of this period. 
 Knight says in his History of England : " It was 
 a painful situation for one of such restless activ- 
 ity. To dehvsr elaborate judgments in the 
 Court of Chancery ; to be ready for every meet- 
 ing of the Cabinet ; duly to be in his place on 
 the woolsack at three o'clock, rarely abstaining 
 from taking a part in debate ; after the adjourn- 
 ment of the House sitting up half the night 
 writing out his judgments ; occasionally to dash 
 off an article for the Edinburgh Heview ; dis- 
 coursing, writing, haranguing on every subject of 
 politics, or science, or literature, or theology ; and 
 then suddenly to have all the duties of official 
 life cut away from him ; * * * after the lapse 
 of a quarter of a century, we look back upon the 
 
 20 
 
154 Beougham. 
 
 unofficial labors of this remarkable man, to whom 
 repose was an impossibility, and measuring him 
 with the most untiring of recorded workers, deem 
 it marvelous that he has accomplished so much, 
 and with few exceptions has accomplished it so 
 well." Lord Dudley writes of his opening 
 speech in defense of the queen : " At half -past 
 twelve to-day Brougham concluded a most able 
 speech with a magnificently eloquent peroration. 
 The display of the power and fertility of his 
 mind in this business has been amazing; and 
 these extraordinary efforts seem to cost him no- 
 thing. He dined at Holland House' yesterday, 
 and stayed till eleven at night, talking ' de omni 
 scibili ' — French cookery, Italian poetry, and so 
 on." The historian of Holland House records 
 that he stayed over night on this occasion, and 
 that " Lord Holland seeing him the next morning 
 busily occupied writing, naturally expected to 
 find him copying out the peroration ; but no, — 
 he was drawing the clauses of an Education Bill ! " 
 During an adjournment of the same trial, he 
 amused himself by attending the assizes at York- 
 shire, and engaged in a cause in behalf of a poor 
 old woman, upon whose pig-cote a trespass had 
 been committed, and got a verdict of forty shil- 
 lings damages for her ! Matters which absorbed 
 the whole of .another man's being were to 
 Brougham but an episode. Bomilly's reforma- 
 
Brougham. 155 
 
 tion of the penal code, Clarkson's abolition of 
 slavery, the cause of popular education, the free- 
 dom of the press, and the scheme of religious tol- 
 eration, all found in Brougham their mightiest 
 advocate. In short, he was as versatile as Dry- 
 den paints Shaftsbury, without his frivolity and 
 inconstancy. 
 
 Of the multifariousness of his learning, there 
 is plenty of contemporaneous testimony, even 
 from his enemies.' Campbell says : " If shut up 
 in a tower without books, at the end of a year he 
 would have produced (barring a few ludicrous 
 blunders) a very tolerable ' Encyclopaedia ;' " and 
 Kogers said of his departure, " This morning 
 Solon, Lycurgus, Demosthenes, Archimedes, Sir 
 Isaac ITewton, Lord Chesterfield, and a great 
 many more, went away in one post-chaise.'' He 
 commenced his scholastic exploits, at the age of 
 twenty, by sending to the Koyal Society of Lon- 
 don a paper on Porisms, and at the age of seventy- 
 one he enlivened his existence by addressing the 
 Imperial Institute of France, in their own lan- 
 guage (or Jirmighmee, as Macaulay called his 
 French), on experiments in Light. He used to 
 amuse himself, when time hung heavy, by writ- 
 ing G-reek epigrams to Lord "Wellesley. Ac- 
 cording to Greville, when he visited Buxton's 
 brewery, he explained every thing to the other 
 visitors — " the mode of brewing, the machinery. 
 
156 Beougham. 
 
 down to the feeding of the cart-horses," and 
 criticised the manner of keeping the books ; and 
 when he accompanied Lady Sefton to the British 
 Museum, lie elucidated every thing there, even to 
 the minerals, dashing off his explanations " as if 
 he had heen a Buckland or a Oiivier." Greville 
 speaks of "his wonderful information, and the 
 facility with which he handles every subject, from 
 the most grave and severe to the most trifling, 
 displaying a mind full of the most varied and 
 extensive knowledge, and a niemory which has 
 suffered nothing to escape it ; I never saw any 
 man whose conversation impressed me with such 
 an idea of his superiority over all others." Sum- 
 ner writes : 
 
 " I could not fail to perceive, in the rapidity of liis 
 thought, the readiness of his language, and the variety of 
 his topics, no slight confirmation of the received opinion 
 with regard to his versatility and universal attainments. 
 The gentleman, who is now staying here, assured me that 
 he had often received long letters from his lordship, writ- 
 ten, currente calamo, in correct Latin ; and a friend told 
 me that lie once stood behind him, when a barrister on 
 the Northern Circuit, and saw him scrawl a Greek ode on 
 his desk in court." 
 
 It has been said that his attainments were su- 
 perficial. In a measm-e this must have been true. 
 But is it not better that a man should know 
 something of all things than all of one thing? 
 The thirst for universal knowledge is noble, al- 
 
Brougham. 157 
 
 though impossible of gratification. A certain 
 rich man having died, .another said to his lawyer, 
 " So old Smith is dead 1 " " Yes," was the reply. 
 " Well, he left a good deal, didn't he ? " said the 
 inquirer. " Yes, he left every thing ; he didn't 
 take any thing with him," answered the lawyer. 
 That could not have been said of Henry 
 Brougham. He took more with him than any 
 other man of this century. Every man can take 
 something with him, if he will ; how much, de- 
 pends considerably on himself. 
 
 Broiigham's contributions to literature are of 
 high and permanent value. He was one of the 
 brilliant coterie of wits who founded the Edin- 
 iurgh lieview, and as Lockhart says, " dipped 
 the concern deep in witty whiggery." This ven- 
 ture attained a great influence in British politics, * 
 and made the fortunes of several of the young 
 men who wrdte for it. Brougham, Sydney Smith, 
 and Macaulay, among them. "Projected in a 
 lofty attic by two briefless barristers and a tithe- 
 less parson, the former are now lords and the lat- 
 ter is a snug prebendary." Brougham's pub- 
 lished works on theology and science are certainly 
 very respectable, but he reaches his best in his 
 biographical sketches of the philosophers, men of 
 letters, and statesmen of the reign of Greorge the 
 Third. In the latter, particularly, are to be found 
 the most brilliant and fascinating rhetoric, and 
 
15i> Beougham. 
 
 the soundest and justest and most generous esti- 
 mates of character. Whipple speaks of Brougham's 
 " imperious scorn, passionate strength, and swell- 
 ing diction." Mr. Prescott, on the other hand, 
 does not think highly of his literary powers, be- 
 cause he underrated the great Unitarian, Chan- 
 ning. Crabbe Eobinson, himself a lawyer, does 
 full justice to his versatility, if not to his hterary 
 powers, when he says : " I read Brougham's In- 
 troduction to the Library of Useful Knowledge, 
 remarkable only as coming from the busiest man 
 living, a lawyer in full practice, a partisan in 
 Parliament, an Edinhurgh Heviewer, and a par- 
 ticipator in all public and party matters," and 
 tells us that lie read the proof-sheets of a German 
 translation of Brougham's "Natural Theology." 
 With such a talent in literature, and owing so 
 much to it, it is a little singular that he should 
 have declined to interest himself in an interna- 
 tional copyright law, although, according to Eob- 
 inson, he gave as his reason, that " he was so in- 
 significant a writer, which," the diarist mischiev- 
 ously adds, " many will believe to be more true 
 than the speaker hunself seriously thinks." He 
 exhibited his interest in letters, however, after he 
 became chancellor, by writing to Southey for his 
 opinion on the sort of patronage which might 
 usefully and safely be given by government to 
 literature. It must be recorded as a singular 
 
Beougham. 159 
 
 fact of his literary career that the only dull and 
 tedious composition that ever came from his pen 
 was his own Life and Times ! One of the few 
 just things in Lord Campbell's spiteful sketch of 
 his life is his prediction that Brougham's auto- 
 biography would be a failure. Some idea of his 
 prodigious acquirements and versatility may be 
 formed from the fact that in a single number of 
 the Review were articles of his on a " New Mode 
 of Performing the Operation of Lithotomy," 
 " The Dispute as to Light between the Emission- 
 ists and the Undulationists," and the " Music of 
 the Chinese," and the first number of this famous 
 magazine contained articles of his on " "Wood's 
 Optics," "Acerbi's Travels," and " The Crisis of 
 the Sugar Colonies." He failed as a novelist, 
 and for a wonder he seems not to have attempted 
 poetry. 
 
 It may well be imagined that a man of 
 Brougham's energy and decision startled the 
 practitioners in Chancery, accustomed to Eldon's 
 dubitations and delays. The Shepherd in the 
 Nodes, depicts him for us, with a pun on his 
 name, as " the besom of destruction, soopin the 
 Court of Chancery, like a Strang wun the chaff 
 frae a barn-floor. See that he does na scatter in 
 the air the wheat that o' richt belangs to the suit- 
 ors. Auld Eldon used to lay 't up carefully in 
 heaps, that it might be carried awa afterward by 
 
160 Brougham. 
 
 the richt owners, aften difficult to be determined." 
 Some one said, " If Brougham only knew a little 
 law he would know a little of every thing." 
 Brougham's judgments were the subject of con- 
 siderable contemporaneous criticism, and doubt- 
 less he will not pass with posterity as a Hard- 
 wicke or an Eldon. Howevea- much Erskine and 
 BroughaiTi might have distinguished themselves 
 by a mastery of the artificial and technical law 
 pertaining to chancery, still the jealousy of hu- 
 man nature Avould always have denied to them 
 the double merit of learned lawyers and great 
 advocates. Still, it is foolish to underrate 
 Brougham's attainments as a lawyer. Erskine 
 truly said that no man can become a great advo- 
 cate without becoming a considerable lawyer. 
 Brougham's four years' tenure of the office of 
 chancellor was insufficient for him to do his pow- 
 ers justice in that difficult position, but doubtless 
 he would always have shone with greater splen- 
 dor as a champion than as an arbiter. Campbell 
 concedes that "he disposed very reputably of 
 most of the cases which came before him, and 
 notwithstanding some few mistakes and eccen- 
 tricities which caused momentary mirth, he com- 
 manded the respect of the bar and of the public ; " 
 and he speaks in general commendation of his 
 opinions delivered in the House of Lords. Doubt- 
 less if Brougham had not known so much of other 
 
Beougham. 161 
 
 subjects, and talked and written so much of 
 them, he would have been deemed a more pro- 
 found lawyer, but men will not tolerate an as- 
 sumption of universal knowledge, although it 
 may be well founded. 
 
 Dr. Lushington told Sumner that when Chan- 
 cellor, Brougham nearly killed himself and all 
 his bar. "Within one year his court was twice 
 closed for lack of business. Sumner himself gives 
 the best account of Brougham on the bench, 
 which we copy from Mr. Pierce's memoirs of 
 Sumner : 
 
 " I have heard Lord Brougham despatch several cases in 
 the Privy Council ; and one or two were matters with 
 which I was entirely familiar. I think I understand the 
 secret of his power and weakness as a judge ; and nothing 
 that I have seen or heard tends to alter the opinion I had 
 formed. As a judge, he is electric in the rapidity of his 
 movements ; he looks into the very middle of the case 
 when counsel are just commencing, and at once says: 
 ' There is such a difficulty [mentioning it] to which you 
 must address yourself, and if you can't get over that I am 
 against you.' In this way he saves time and gratifies his 
 impatient spirit ; hut he offends counsel. Here is the 
 secret. I have heard no other judge (except old Allan 
 Park) interrupt counsel in the least. In the meantime. 
 Brougham is restless at table, writes letters ; and, as Baron 
 Parke assured me (Parke sits in the Privy Council), wrote 
 his great article in the Edinburgh Heview for April last at 
 the table of the Privy Council. I once saw the usher 
 bring to him a parcel of letters, probably from the mail, 
 — I should think there must have been twenty-live, — and 
 he opened and read them, and strewed the floor about him 
 
 21 
 
162 Beougham. 
 
 with envelopes ; and still the argument went on. And 
 very soon Brougham pronounced the judgment in rapid, 
 energetic, and perspicuous language, — better than I have 
 heard from any other judge on the bench. I have already 
 quoted the opinion of Denman. Barristers with whom I 
 have spoken have not conceded to him the position ac- 
 corded by the Lord Chief Justice, but still have placed 
 him high. Mylne, the reporter, an able fellow, says that 
 he is infinitely superior to Lyndhurst, and also to Lord El- 
 don in his latter days." 
 
 As an advocate, Brougham must be ranked 
 with Erskine and Scarlett, although perhaps not 
 so successful as either. It must be confessed that 
 he was not quite so much in earnest in verdict- 
 getting as they were. His speech in the case of 
 the Durham clergy shows, however, that he could 
 press hard on Erskine when he put forth his full 
 powers. But as an orator outside of the law 
 courts he was immeasurably above either. Gre- 
 ville pronounces his opening speech on Queen 
 Caroline's trial the most magnificent heard in 
 years, and that he was an orator in every sense of 
 the word. In Parliament he spoke on every oc- 
 casion and every subject. In one session he made 
 two hundred and thirty speeches, and Campbell 
 thinks that of all the sons of men, since the flood 
 at least, he had uttered the most words by far. 
 But Campbell is wrong in thinking that posterity 
 will not read his speeches. They are doing it 
 now with delight, and will continue to do it longer 
 than they will read Campbell's Lives, and in 
 
Brougham. 163 
 
 reading his life of Brougham they will be apt to 
 remember what Brougham said of him : " Don't 
 mind what Jack Campbell says ; he has a prescrip- 
 tive privilege to tell lies of all chancellors dead 
 and living." Of all the orators who ever spoke 
 in Parliament, Brougham comes next to Biirke in 
 comprehension, cogency, variety and splendor. 
 Awhile in the magnitude and usefillness of the 
 topics of his orations he excelled him. 
 
 Brougham's oratory was characterized by great 
 vehemence, sarcasm, invective and wit, biit lacked 
 the softer graces. We get an amusing, although 
 jaundiced, view of it early in the Nodes : 
 
 " North. What stuiF is spoken about the oratory of pul- 
 pit and parliament ! 
 
 " Tickler. Brougham is a volcano — an eruption — a de- 
 vouring flame — a storm — a whirlwind — a cataract — a tor- 
 rent — a sea — thunder and earthquake. You might apply 
 the same terms, with the same truth to a Billingsgate 
 fish-wife. 
 
 " North. Brougham's invective is formidable chiefly for 
 its vulgarity. One hates, loathes, fears to be pelled with 
 the mud and missiles of an infuriated demagogue — just as 
 a, gentleman declines the proffered combat with a carman, 
 although conscious that in three rounds he would leave 
 the ruffian senseless in the ring. 
 
 " Tickler. That sometimes occurs — as in the case of Can- 
 ning. 
 
 "North. The straight hitting of the Foreign Secretary 
 soon dorses your round-about hand-over-head millers, like 
 Harry Brougham. 
 
 " Tickler. Yet how that outrageous violence and fury, 
 arms aloft, eyes agog, cheeks convulsed, and lips quiver- 
 
164 Brougham. 
 
 ing, passes with the multitude for demonstration of 
 strength and science ! 
 
 " North. Brougham never fights at points — he throws 
 away his blows — and beyond all the other men lays him- 
 self open to fatal punishment ; although he has weight, 
 length, and reach, and generally enters the ring in good 
 condition, and after long and severe training, yet has he 
 lost every battle. His backers are never confident — yet in 
 a casual turn-up, it must be allowed that he is an ugly 
 customer." 
 
 This, it must be remembered, was written in 
 1825. Six years later l^orth wrote : " Brougham 
 is a great orator as oi-ators go." Robinson de- 
 scribes his speech at a great dinner after the re- 
 peal of the test and corporation acts, as of " great 
 mastery, both as to style and manner." Pres- 
 cott, the American historian, writing from Lon- 
 don in 1850, when Brougham was seventy-two 
 years old, speaks of him as " flying up and down, 
 thumping the table with his fist, and foaming at 
 the mouth, till all his brother peers, including 
 the old Duke, were in conviilsions of laughter." 
 But so gentle and ladylike a person as Prescott 
 would hardly appreciate the earnestness of a man 
 like Brougham. 
 
 It was as a reformer that Brougham rose to 
 his grandest heights. As a law reformer his ser- 
 vices to mankind have been incalculable. With 
 Pomilly and Campbell he effected ameliorations 
 and alterations of the legal system that entitle 
 him to the lasting gratitude of every man who 
 
Beougham. 165 
 
 loves justice and reverences the law. Mr. May, 
 in his Co'nstitutional History, speaking of 
 Broiigham's great first speech on law reform, 
 says : " Suggesting most of the law reforms 
 which have since been carried into effect, and 
 some not yet accomplished, it stands as a monu- 
 ment to his fame as a lawgiver." And in sum- 
 ming up what was effected. May continues : 
 
 " The procedure of tlie Court of Chancery was simplified; 
 its judicial establishment enlarged and remodeled ; its of- 
 fices regulated. Its delays were in great measure averted, 
 and its costs diminished. The courts of common law un- 
 derwent a like revision. The eflete "Welsh judicature was 
 abolished ; the bench of English j udges enlarged from 
 twelve to fifteen ; the equitable jurisdiction of the Court 
 of Exchequer superseded ; the procedure of the courts 
 freed from fiction and artifice ; the false system of pleading 
 swept away; the law of evidence amended; and justice 
 restored to its natural simplicity. The law of bankruptcy 
 and insolvency was reviewed ; and a court established for 
 its administration, with wide general and local jurisdic- 
 tion. Justice was brought home to every man's door by 
 the constitution of county courts. Divorce, which the law 
 had reserved as the peculiar privilege of the rich, was 
 made the equal right of all. The ecclesiastical courts were 
 reconstituted ; and their procedure and jurisdiction re- 
 viewed. A new Court of Appeal, — of eminent learning 
 and authority, — was found in a judicial committee of the 
 Privy Council ; — which as the court of last resort from 
 India and the colonies, from the ecclesiastical courts and 
 the Court of Admiralty, is second only to the House of 
 Lords in the amplitude of its j urisdiction. The antiqua- 
 ted law of real property was re-cast ; and provision made 
 
166 Bbougham. 
 
 for simplifying titles and facilitating the transfer of lands. 
 Much was done, and more attempted, for the consolidation 
 of tlie statutes ; '' etc., etc. 
 
 Lord Campbell, whose continual boast, and in- 
 deed principal claim to the gratitude of man- 
 kind, was his libel bill, constantly underrates 
 Brougham's merits as a law reformer, in his Life, 
 and when he is compelled out of decency to speak 
 well of him, damns him witli faint praise. His 
 Life of Brougham is mainly valuable as uninten- 
 tionally exposing the seliishness and depravity of 
 British politics in his day. Biit the facts which 
 Campbell narrates of Brougham's Herculean 
 labors in law reform speak louder than any praise 
 he could utter, and raise Brougham in this re- 
 spect infinitely above every other lawyer of any 
 age. 
 
 Brougham was a homely man, long, lank, loose- 
 jointed, with an enormous nose, which for many 
 years made fun for the readers of Punch. Kit 
 North says : " Brougham is no beauty ; but his 
 mug is a book, in which men may read strange 
 matters — and take him as he stands, face and 
 figure, and you feel that there is a man of great 
 energy and commanding intellect." The famous 
 picture of Brougham in the Noctes is too fine not 
 to be quoted in full : 
 
 " Tickler. Brougham in his robes ! Lord High Chancellor 
 of England ! Stern face and stalwart frame, — and his 
 mind, people say, is gigantic. They name him with Bacon. 
 
Brougham. 167 
 
 Be it so ; tlie minister he and interpreter of Nature. Henry 
 Brougham, in the eyes of his idolaters, is also an Edmund 
 Burke. Be it so ; at once the most imaginative and most 
 philosophical of orators that ever sounded lament over the 
 decline and fall of empires, while wisdom, listening to his 
 Ups, exclaimed : 
 
 ' Was ne'er prophetic sound so full of woe ! ' 
 
 " North. Come — come, Tickler, — none of your invidious 
 eulogies on the Man of the People. 
 
 " Tickler. There he sits — a strong man — not about to run 
 a race 
 
 " North. But who has run it, and distanced all competi- 
 tors. There is something great, Tickler, in unconquerable 
 and victorious energy 
 
 " Tickler. A man of many talents he — some of them 
 seeming almost to be of the highest order. Sword-like 
 acuteness — sun-like perspicacity 
 
 " North. And sledge-hammer-like power. 
 
 " Tickler. There is a wicked trouble in his keen gray 
 eyes. 
 
 " North. No. Restless, but not unhappy. 
 
 " Ticlder. Scorn has settled on that wide-nostril'd pro- 
 bo 
 
 " North. No. It comes and goes— the nose is benevolent. 
 
 " TicMer. Do you say there is no brass on that hard fore- 
 head? 
 
 " North. I see but bone — and though the brain within is 
 of intellect ' all compact,' the heart that feeds it burns with 
 passions not unheroic." 
 
 The Shepherd (Hogg), too, in the same amus- 
 ing papers, calls him, in his broad Scotch, " Hairy 
 Broom," and says : " An' in that mane of his, he 
 looks like a lion-ape — at once ludicrous and fear- 
 
168 Brougham. 
 
 some — a strange mixture o' the meanest and 
 mightiest o' a' beasts." 
 
 The wits and epigrammatists frequently paid 
 their compliments to Brougham. His proneness 
 to speak on every subject and occasion was thus 
 hit off in Punch : 
 
 " ' I wonder if Brougham thinks as much as he talks ? ' 
 Said a punster perusing a trial ; 
 ' I vow since his lordship wag made Baron Vaux, 
 He's been Vaux et preterea : 
 
 The English pronunciation of his name afforded 
 opportunity for countless jests. Among the best 
 of these is the graceful epigram of Lord Hol- 
 land : 
 
 " There's a wild man at large doth roam, 
 A giant wit ! — They call him Brougham, 
 
 And well methinks they may. 
 He deals, whene'er he speak or acts. 
 With friends and foes and laws and facts 
 
 In such a sweeping way." 
 
 Byron, in English Sards and Scotch Sevieivers, 
 says : 
 
 " Beware lest blundering Brougham destroy the sale. 
 Turn beef to bannocks, cauliflowers to kail." 
 
 The noble bard would probably not have let him 
 off so easily had he then supposed, as he was led 
 in his latter days' to suspect, that he was the 
 author of the offensive critique which called 
 forth this caustic rejoinder. If no poet offered 
 incense to Brougham, at least one poet thought 
 it worth his while to " drop into" prose against 
 
Brougham. 169 
 
 him ; for Wordsworth -wTote several pamphlets 
 opposing his election to Parliament, in one of 
 which he thus curiotisly defined Brougham's most 
 salient characteristic : " Independence is the ex- 
 plosive energy of conceit making blind havoc 
 with expediency." Truly, Brougham was not an 
 "expedient" statesman. Dickens, also, derived 
 his famous quarrel between Mr. Pickwick and 
 Mx. Tupman, where offensive expressions were 
 explained to have been used, not in their usual 
 and natural, but in a Pickwickian, sense, from a 
 similar scene between Brougham and Canning in 
 the Hoiise of Lords. When Brougham was mak- 
 ing his triumphal progress through Scotland, in 
 183i, lie observed, at a public dinner given to 
 Eai'l Grey at Aberdeen, in the course of a speech 
 full of adulation of the king, that he should write 
 by next post to the king an account of the flatter- 
 ing reception he had met in that city. This un- 
 fortunate remark was the signal for a tempest of 
 jeers and laughter all over the island. Among 
 other satires which it called forth was the follow- 
 ing : " Letter from a gentleman who travels for 
 a large establishment to one of his employers, 
 Mr. William King : " 
 
 " Dear sir, tlie account here forwarded 
 Of favors since the 4tli, 
 Presents a very handsome stroke 
 Of business in the North, 
 
 22 
 
170 Beougham. 
 
 Our firm's new style don't take at all. 
 So thought the prudent thing 
 
 Would be to cultivate the old 
 Established name of King. 
 
 " Believe me, sir, so great a zeaj 
 
 In this behalf I've shown, 
 Credit's been turned to your account 
 
 Which strictly was my own. 
 Does any one admire my nag. 
 
 Or think my gig's the thing, 
 This horse and shay, I always say, 
 
 Belong to Mr. King. 
 
 " If any friend attention shows. 
 And asks me out to dine, 
 When company my health propose, 
 
 In toddy or in wine. 
 My heart's eternal gratitude 
 
 About their ears I ding, 
 
 ' Be assured, I'll mention this 
 
 Next post to Mr. King ! ' 
 
 " I met with Grey, the other day. 
 Who, since he left the firm, 
 Has traveled on his own account. 
 
 And done, I fear, some harm. 
 So thought it right, where'er he went, 
 To whisper round the ring, 
 ' Perhaps you don't know Iww he lost 
 The confidence of King.' 
 
 " With what I still propose to do. 
 
 And what's been done already, 
 I trust the firm will henceforth go 
 
 On prosperous and steady. 
 Should any chance the senior clerk 
 
 Into discredit bring, 
 I trust, sir, you'll remember who 
 
 Hai served the House of King." 
 
 Tom Moore, in his poem entitled " Animal Mag- 
 netism," alludes to the ill-grace with which 
 Brougham took his dismissal from office : 
 
Brougham. 171 
 
 " Far different, of course, the mode of affection, 
 When the wave of the hand's in the out direction ; 
 The effects being then extremely unpleasant. 
 As is seen in the case of Lord Brougham, at present ; 
 In whom this sort of manipulation 
 Has lately produc'd such inflammation. 
 Attended with constant irritation, 
 That in short — not to mince his situation, — 
 It has worked in the man a transformation 
 That puzzles all human calculation ! 
 Ever since the fatal day which saw 
 That ' pass ' perform'd on this Lord of Law — 
 A pass potential none can doubt. 
 As it sent Harry Brougham to the rightabout — 
 The condition in which the patient has been. 
 Is a thing quite awful to be seen." 
 
 Leech's caricatures of Brougham, in Punch, are 
 irresistibly funny. In 1846, we have " Lord 
 Brougham in training for Parliament," stripped, 
 with his boxing-gloves on, sparring at a lay -figure 
 of Campbell ; on a table his own bust, with a 
 monstrous bump on the top labeled " self-esteem," 
 and a pile of books on divinity, history, politics, 
 morals, metaphysics, science, etc. ; a picture of 
 two game chickens hanging on the wall. Another 
 represents Lord Lyndhurst in bed asleep, his 
 head on the woolsack, and Brougham in the same 
 bed, wide-awake, with an old woman's cap on ; 
 the title is " The Mrs. Caudle of the Hoxise of 
 Lords," and the motto is : " "What do you say ? 
 Thank heaven, you're going to enjoy the recess, 
 and you'll be rid of me for some months ! l^ever 
 mind. Depend upon it, when you come back 
 you shall have it again. No, I don't raise the 
 House and set everybody in it by the ears ; but 
 
172 Beougham. 
 
 I'm not going to give up every little privilege ; 
 thougli it's seldom I open my lips, goodness 
 knows ! " Another, in 184:6, depicts Brougham 
 as an old horse in a paddock, inscribed " House 
 of Lords," trotting around after a passing fox- 
 hunt, and is entitled " A Celebrated Old Hunter, 
 formerly in the possession of the British Nation, 
 and now the property of Mr. Punch." Another 
 portrays him in a terrible rage, sitting on a bench, 
 and is entitled, "Portrait of a Noble Lord in 
 Order ;" — " order ! who calls me to order ? pooh, 
 pooh ! fiddle-dcTdee ! I never was in better order 
 in my life. Noble lords don't know what they 
 are talking about." Another, entitled "The 
 Bear and the Bees," exhibits Brougham assailed 
 by the French press. Another is entitled, " What 
 he must do next," and represents him standing on 
 his head. Another, entitled " The Dancing Les- 
 son," figures him as a dancing-master, instructing 
 a class of country louts, his " agricultural pupils," 
 • — referring to an agricultural address. One of 
 the best is " Ain't I volatile ? " representing him 
 as Miss Moucher, standing on a table dressing 
 Lord Stanley's hair, and saying : " Bless you, 
 man alive ! I'm here, and there, and where not, 
 like the conjurer's half-crown in the lady's liand- 
 kercher. Aha ! Umph ! What a rattle I am ! 
 — ain't I volatile?" In the guise of Oliver 
 Twist, he presents his porringer and spoon, and 
 
Beougham. 1Y3 
 
 asks Mr. Bull " for more " — a reflection at his 
 supposed hankering for office under the conserva- 
 tive ministry in 1844. Again, " The School- 
 master in America " represents him sitting in a 
 rocking-chair — \thej have none in England) — 
 smoking a cigar, a " cobbler " at his elbow, with a 
 paper on " law amendment " in his hands, from 
 which he is reading to Brother Jonathan sitting 
 on a table and sucking another cobbler ; a bill 
 on the wall announces, " Great attraction ! Lord 
 Brougham in America for a few weeks only." 
 The quotation is : " The noble and learned lord 
 then took occasion to express the great respect 
 which he entertained f6r the eminent lawyers 
 which America produced ; and he repeated that 
 it was his intention to visit that country in the 
 spring." This was in 1850. He is also repre- 
 sented as Kiss's statue of the Amazon, attacking 
 chancery abuse, a wigged tiger climbing on the 
 front of his horse ; also as putting Lord Truro's 
 head " in chancery," and punching it with a bill 
 for the " extension of county courts." Again, he 
 is clown to ring-master Wellington, and says, " Is 
 there any thing I can run for to fetch, for to 
 come, for to go, for to carry, for to bring, for to 
 take," etc. ; this on account of his support of the 
 conservative party in 1843. Then there is a 
 terrible broad-sword theatrical combat at St. Ste- 
 phen's between him and Campbell. As a coun- 
 
174 Beougham. 
 
 selor he receives instructions from Lonis Phillippe 
 Macaire for his defense in the House of Lords, 
 and again makes a triumphant landing at Eou- 
 logne, a group of corypliees scattering flowers 
 before him ; — ■ he had a chateau at Cannes. But 
 all is atoned for in the last, representing him at 
 the bottom of the hill on which stands the Tem- 
 ple of Fame, with his Speech at the Meeting for 
 the Promotion of Social Science under his arm, 
 with Mr. Punch, hat off, and pointing him iip 
 the hill, says (with the greatest respect), " After 
 you, my lord ! " 
 
 The author of The Bar thus pays his compli- 
 ments to Brougham : 
 
 " With meager form, and face so wondrous tliin, 
 That it resembles Milton's ' Death and Sin,' 
 Long arms that saw the air like wind-mill sails, 
 And tongue that in its duty never fails, 
 Behold the hero of the North I make room. 
 For Scotia's ' babe of grace ' — great Harry Brougham. 
 A chieftain he of strong elastic mind. 
 That covets all the knowledge of mankind, 
 And though elusive as the subtle air. 
 Grasps and retains a more than common share. 
 To the huge wonder of each brainless dunce, 
 He's critic, statesman — lawyer — all at once. 
 Yet if (as sings or says the immortal wit) 
 'One science only will one genius fit ' — 
 Far better had his passion never stray'd 
 From that to which his early vows were paid. 
 For he who nobly dares aspire, her mind 
 And its vast treasures to possess, will find 
 A mistress that will ' not unsought be won,' 
 Nor tamely bear a rival near her throne. 
 Had he the goal still labored to pursue, 
 However distant, he first had in view. 
 With well-earned wealth, and honest just renown, 
 
Beotjgham. 175 
 
 The highest honors might have been his own. 
 
 But ah ! ambition oft makes fearful odds, 
 
 (' That glorious fault of angels, and of gods.') 
 
 In mortal man's estate — 'twas this alone 
 
 That raised the great Napoleon to a throne, 
 
 And when he grew ' top-heavy ' — hurled Mm down. 
 
 'Twas this that tempted, in an evil hour. 
 
 Our lofty aspirant to grasp at power, 
 
 To quit the certain road to wealth and fame. 
 
 For the mere hollow ' whistling of a name,' 
 
 Thus laboring half his life up-hill to gain. 
 
 The lofty summit of his hopes — in vain, 
 
 Content at length (a vast reward I ween) 
 
 To be Attorney-General — to the Queen ! 
 
 So children after shining rainbows run, 
 
 (Those transient bright creations of the sun). 
 
 Which, in the keen pursuit, appear to stay. 
 
 But, when they try to grasp them, — ^melt away. 
 
 ' Sick of the empty honors that await, 
 The harass'd leader of a dull debate. 
 Night after night, he vainly wastes his breath. 
 And toils and fags his very soul to death, 
 To prove before the House, with serious faith. 
 To demonstration — that, in every case. 
 The way to save the country is, — no doubt,— 
 To get one party in, and t'other out. 
 
 " Yet, while his venial errors to descry. 
 We look with keen and microscopic eye, 
 Let equal justice, with impartial view, 
 Give to his sterling merit all its due ; 
 And own his faults, though scann'd with truth severe. 
 But like dark spots upon the sun appear. 
 Which not a moment cloud its brilliant rays. 
 Lost and extinguished in the general blaze. 
 Behold him, then, with large and liberal mind. 
 Of richest, rarest qualities combined, 
 Bottom'd in solid judgment and sound sense, 
 Adorn'd by chaste yet powerful eloquence. 
 Where strength unites with eloquence and ease, 
 A classic union that must e^er please. 
 Thus form'd when Courts of Law demand his caxe, 
 Tou see at once his province is not there. 
 He labors hard, 'tis true, takes endless pains. 
 
176 Brougham. 
 
 And all hia subject to the bottom drains, 
 
 And when some latent fraud he would descry. 
 
 Darts from his keen and penetrating eye 
 
 A burning glance that makes the witness start, 
 
 Piercing the inmost secret of his heart ; 
 
 And like the touch of great Ithuriel's spear. 
 
 Compels the lurking devil to appear ; 
 
 Yet spite of all his zeal, his boundless pains, 
 
 A deficit, a want of tact, remains, 
 
 A certain nameless something, more or less, 
 
 Far better to imagine than express, 
 
 And which beyond the art of man to reach. 
 
 Nothing but vast experience can teach. 
 
 But break the fetters that enthrall his mind. 
 
 And leave his genius free and unconfined. 
 
 Then in his proper sphere, the senate, placed. 
 
 Give him some subject in which stand embraced 
 
 Topics of interest and vast magnitude. 
 
 But little canvassed and less understood. 
 
 Which moot the dearest interests of a state, 
 
 A people's welfare or an empire's fate ; 
 
 Such mighty questions, with momentous sway. 
 
 Bring his transcendent talents into play. 
 
 And as into its hidden depths they wind, 
 
 Draw from the vast resources of his mind 
 
 A mass of varied knowledge, bright and sound, 
 
 With views now luminous and now profound, 
 
 Resistless arguments brought forth at will, 
 
 Enforced with vigor and wound up with skill. 
 
 Which put all trivial cavils to the rout. 
 
 And leave the captious mind no room to doubt." 
 
 Brougham wrote his own epitaph, which recog- 
 nizes his vohtbility and illustrates his wit : 
 
 " Here, reader, turn your weeping eyes. 
 My fate a useful moral teaches ; 
 The hole in which my body lies 
 Would not contain one-half my speeches. " 
 
 Brougham's private character was pure and his 
 disposition amiable. .Campbell does him ample 
 justice in these respects, and Greville says : " His 
 gaiety, temper, and admirable social qualities 
 
Beougham. 177 
 
 make him delightful, to say nothing of his more 
 solid merits, of liberality, generosity, and char- 
 ity ; for charity it is to have taken the whole 
 family of one of his brothers who is dead — nine 
 children — and maintained and educated them." 
 And again, " he is all life, spirit, and gaiety — 
 ' from grave, to gay, from lively to severe ' — dash- 
 ing through every description of folly and fun, 
 dealing in those rapid transitions by which the 
 attention and imagination are arrested and ex- 
 cited ; always amusing, always instructive, never 
 tedious, elevated to the height of the greatest in- 
 tellect, and famihar with the most abstruse sub- 
 jects, and at the same moment conciliating the 
 humble pretensions of inferior minds by drop- 
 ping into the midst of their pursuits and objects 
 with a fervor and intensity of interest which sur- 
 prises and delights his associates, and, above all, 
 which puts them at their ease." " Wordsworth 
 talked a great deal of Brougham, whose talents 
 and domestic virtues he greatly admires ; that he 
 was very generous and affectionate in his disposi- 
 tion, full of duty and attention to his mother." 
 Campbell says he was a " pious son," and gives 
 an affecting picture of the great lord chancellor, 
 the foremost man of his time, visiting his native 
 country to seek his aged mother's blessing. Sum- 
 ner writes : " Lord Brougham has given me his 
 full-bottom Lord-Chancellor's Avig, in which he 
 23 
 
178 Brougham. 
 
 made his great speech on the Reform Bill. Such 
 a wig costs twelve guineas ; and then, the asso- 
 ciations of it ! In America it will be like Rabe- 
 lais' gown." Sumner gave it to the Harvard 
 Law School, where we hope it is still sacredly 
 preserved. It is doubtful whether it could ever 
 have covered a skull more full of genius and hu- 
 manity than that of its donor. 
 
 Sumner gives some vivid pictures of Brough- 
 am's manners. Meeting him at dinner, he says : 
 " My wonder at Brougham rises anew. To-night 
 he has displayed the knowledge of the artist and 
 the gastronomer. He criticised the ornaments of 
 the drawing-rooin like a connoisseur, and dis- 
 cussed subtle points of cookery with the same 
 earnestness with which he emancipated the West 
 India slaves and abohshed rotten boroughs. Call- 
 ing for a second plate of soup, he said ' there 
 was a thought too much of the flavor of wine ' ; 
 but that it was very good. He told how he se- 
 cured good steaks, by personally going into the 
 ■ kitchen and watching over his cook, to see that 
 he did not spoil them by pepper and horse-radish 
 — the last being enough to make a man go mad." 
 Brougham and Courtenay alternately quoted to 
 Sumner several Grreek epigrams written by the 
 lawyers Williamson and Alderson. Brougham 
 told Sumner that his own Greek epigram on 
 Chan trey's woodcooks was the worst ■ of all. 
 
Beougham. 179 
 
 (Chantrey, the sculptor, on a visit at Holkliam 
 Hall, had killed two woodcock at one shot, an ex- 
 ploit which he celebrated in a marble tal)let which 
 he presented to his host, who invited all the class- 
 ical world to write Greek epigrams on tlie occa- 
 sion.) Snmner adds : " Lord Brougham is not 
 agreeable at dinner. He is, however, more inter- 
 esting than any person I have met. He has not 
 the airy graces and flow of Jeffrey, the piercing 
 hnmor of Sidney Smith, the dramatic power of 
 Theodore Hook, or the correct tone of Charles 
 Austin ; but he has a power, a fullness of infor- 
 mation, and physical spirits, which make him 
 more commanding than all ! His great character 
 and his predominating voice, with his high social 
 and intellectual qualities, conspire to give him 
 such an influence as to destroy the equilibrium, 
 so to speak, of the table. He is often an usurper 
 and we are all resolved into listeners instead of 
 partakers in the conversational banquet ; and I 
 think all are ill at ease." He " abused Miss Mar- 
 tineaix most heartily," and said she was " a great 
 ass " on questions of policy and government. He 
 was horribly profane. He told Sumner that 
 O'Connell was " a damned thief." When Sum- 
 ner took leave of him, he exclaimed, " Oh, God ! 
 must you go?" The late Duke of Gloucester, 
 he said, was " a damned bore and fool." On one 
 occasion Sumner found him in his study with a 
 printer's devil on one side and his private secre- 
 
180 Beougham. 
 
 tary on the other, and '■^ uilrabile dicbu,! he did 
 not use an oath." 
 
 Sumner's account of his visit at Brougham 
 Hall is very entertaining. At dinner, among 
 other guests, was an old clergyman, who hrought 
 as a present to the host a bottle of rum fifty years 
 old. Lord Brougham took very little wine — 
 "less than I have seen any gentleman take at, the 
 head of his table in England " — but he did not 
 scruple to swear like a trooper. " I do not re- 
 member to have met a person who swore half so 
 much," says Sumner. 
 
 In respect to Brougham's character, there is 
 great contrariety of opinion. Among his contem- 
 poraries, he incurred the hatred of all the tories, 
 and the jealousy of many even of the whigs. 
 Wellington thought him a " damned queer fellow 
 — half mad." Even Sumner was inclined to be- 
 lieve that in his latter days he was influenced by 
 an hereditary taint of insanity. In charity Sum- 
 ner ought to have attributed his eccentricities to 
 an excess of horse-radish in his beefsteaks, which 
 Brougham had said was enough to drive a man 
 mad. But most great men have been thought 
 mad by some of their contemporaries. We stand 
 too near his times, as Sumner did, to acquu'e a 
 perfectly reliable view of his merits and defects. 
 A small and highly-finished painting, like one ot 
 Meissonier's, may be viewed microscopically with 
 
Beougham. 181 
 
 satisfaction, but produces no effect at a distance, 
 while, on the other hand, one of Turner's mag- 
 nificent landscapes, when seen close at hand, pre- 
 sents an indistinguishable mass of blurred colors, 
 and it is only as the spectator retires from the 
 canvas that its glories break forth. So it is with 
 a great character like Brougham's. The esti- 
 mates of his biographers and critics exhibit that 
 singular tendency in human nature to soil the 
 fame of the good and palliate the failings of the 
 bad. Calumny and charity seem to go hand in 
 hand in historic judgment. The same age which 
 produces detractors of the deserts of Columbus, 
 Shakespeare, William Tell, Pocahontas, Eliza- 
 beth, and others, supplies apologists for Xantippe, 
 Aspasia, Bacon, Macchiavelli, Eichard the Third, 
 Lucrezia Borgia, Henry the Eighth, and Judas. 
 Whatever may have been the demerits of his 
 character, as one has said, friend and foe must 
 write in inscribing under his statue, " The Great 
 Apostle of Education, the Emancipator of the 
 Negro, the Eestorer of Abused Charities, the 
 Eeformer of the Law. " To this must be added : 
 " Champion of Popular Education, Advocate of 
 Free Printing, Defender of Queen Caroline." 
 Even old Kit North at last conceded, that " with 
 all his sins, by friend and foe he is held to be, in 
 his character of statesman, the first man in Eng- 
 land." As one poet sang of another poet, so 
 may we write of Brougham : 
 
182 Beougham. 
 
 " Strong sense, deep feeling, passions strong, 
 A hate of tyrant and of knave, 
 A love of right, a scorn of wrong. 
 Of coward and of slave ; — 
 
 ' A kind true heart, a spirit high. 
 
 That could not fear and would not bow ; 
 
 " He kept his honesty and truth, 
 His independent tongue and pen, 
 And moved, in manhood as in youth, 
 Pride of his fellow-men." 
 
 In Orabbe Eobinson's Diary, an affecting scene is 
 presented in a note by the editor on the passage 
 descriptive of Lord Brougham's presence at the 
 distribution of prizes at University College, Lon- 
 don, in 1866. The editor says he recollects Eob- 
 inson, aged ninety-one, supporting the tottering 
 steps of Brougham, aged eighty-seven, and assist- 
 ing him to a chair. Thus, almost in the last days 
 of his life, having long passed the prescribed 
 limit of man's years, and outlived the period 
 when mankind care for earthly affairs, he had not 
 outlived his noble interest in the cause of educa- 
 tion, but had preserved warm and vivid his de- 
 sire to enlighten and elevate his fellow-men. He 
 had not oiitlived his usefulness, and his example 
 speaks to us from the grave. The world is wiser, 
 happier, and more humane for his having lived 
 in it. The most useful man of his time and 
 country, his life exhorts us, as lawyers and pub- 
 
Beougham. 183 
 
 lie men, to cultivate an ambition for usefulness. 
 Although we must all despair of equaling his 
 measure o£ greatness, yet we can set ourselves a 
 high mark, and it is nobler to fall short of a high 
 mark than to attain a low one. 
 
CHIEF JUSTICE PAESOI^S. 
 
 COMPAEATIYELY few outside JSTew Eng- 
 land will recognize the name of Chief 
 Justice Parsons. He was not a shining patriot 
 like Samuel Adams, nor a great statesman like 
 Webster, nor a learned author hke Story, nor a 
 dazzling advocate like Choate, but he was a 
 greater lawyer than any of these, and seems to 
 have impressed his contemporaries with the 
 gigantic force of his character and the profundity 
 of his learning, and exercised an almost despotic 
 influence in the courts of Massachusetts, and in- 
 deed throughout New England. His biography, 
 written by his distinguished son, is a fascinating 
 book, especially to a lawyer, and the character of 
 its subject, as there depicted, is a most striking 
 ■ and instructive one. 
 
 Parsons was born in 1750 and died in 1813. 
 He thus lived through the exciting revolutionary 
 struggle and the critical period of the formation 
 of our government, and died when our country 
 was in the midst of her second war with the 
 mother-country. He entered Harvard College in 
 1765, and graduated in 1769. His father, a eler- 
 
Chief Justice Paesons. 185 
 
 gyinan, found difficulty in providing for his ex- 
 penses, and it is related that a domestic in the 
 family, named Esther Day, whose compensation 
 was $40 a year, proposed to relinquish her wages 
 and let the amount go toward his college ex- 
 penses. This offer, so characteristic of New 
 England's civilization, was declined, but material 
 aid from parishioners of the father was accepted. 
 After graduating, he taught school at Falmouth, 
 now Portland, for three years, receiving from the 
 public treasury $17.79 monthly for his services, 
 beside some trifling amounts from the parents. 
 He journeyed between Falmouth and Byfield, 
 his home, on horseback, and the memoranda of 
 his expenses on the road, including one night's 
 lodging, and "punch," show an outlay of $2.07. 
 During all this time he was studying law at Fal- 
 mouth, and he was admitted to practice in 1774. 
 fie continued there till the town was burned by 
 the British the next year, and then returned to 
 his father's house. Here he found Judge Trow- 
 bridge, whom Chancellor Kent calls " the oracle 
 of the common law in New England," and who 
 on account of his toryism had retreated thither 
 from his home in Cambridge. By the aid of 
 this learned lawyer's library, then the best in 
 America, and his companionship, Parsons there 
 laid the foundations of his profound and exact 
 legal knowledge. He afterward removed to 
 24 
 
186 Chief Justice Parsons 
 
 Newbnrjrport, where in 1780 he married a daugh- 
 ter of Judge Greenleaf, from which union sprang 
 twelve children. In 1800 he removed to Boston. 
 Here he maintained a leading position at the bar, 
 until in 1806 he was appointed chief justice of 
 the Supreme Court of that State. 
 
 Owing to the exceptional advantages which he 
 enjoyed in his preparation, and his comprehensive 
 and inquisitive intellect, Parsons became the best 
 educated lawyer of his day. His method of 
 study was to reduce every thing to writing. His 
 memoranda fill many volumes. This habit was 
 adopted partly because he feared he might never 
 again have access to such a law library. In his 
 subsequent experience at the bar and on the 
 bench, he derived great benefit and convenience 
 from these notes. Undoubtedly he was then the 
 only lawyer in New England who cotild boast of 
 a thorough, systematic, and scientific legal educa- 
 tion. On one occasion, he was retained by the 
 State of Connecticut to meet Alexander Hamil- 
 ton in a case to be tried before Chief Justice Ells- 
 worth. At dinner, after the trial, Hamilton said 
 to him : " Mr. Parsons, let me ask you one thing. 
 The point I made " (describing it) " was suggested 
 to me only after much study of the ease, and 
 then almost by accident, but I thought it very 
 strong. You were fully prepared for it, and 
 gathered and exhibited the authorities at once, 
 
Chief Justice Parsons. 187 
 
 and prevailed, and I must submit; but I was a 
 good deal surprised at it, and Avhat I want to ask 
 you is, whether you had anticipated that point ? " 
 " Not in the least," was the answer ; " but so 
 long ago as when I was studying with Judge 
 Trowbridge the question was suggested to me, 
 and I made a brief of the authorities, which I 
 happened to have brought here with me, and I 
 found the books in Judge Ellsworth's library." 
 It was on this trial that Hamilton said of Par- 
 sons, that he had often heard of hair-splitting in 
 argument, but he never till now had seen a man 
 decimate a hair, and count the pieces before the 
 coiirt. His memory was wonderful. Judge 
 Parker used to say of liim, that he knew every 
 thing in every case in the reports except the 
 names. Much of his early success was due to his 
 masterjr of the law of prize and admiralty, of 
 which few lawyers then knew any thing. This 
 was a very lucrative branch of the profession, 
 and Parsons nearly monopolized it. This class of 
 clients paid liberally and willingly. Mrs. Par- 
 sons had a dozen heavy silver-gilt spoons, which 
 a privateer captain, after paying her husband's 
 bill, threw into her lap as she sat in his oiiice, 
 which was in the hoiise, saying, " I don't think 
 the squire has charged me half enough." Par- 
 sons used to tell of one of these clients, who 
 often said, " I have prayed to the Lord to make 
 
188 Chief Justice Paesons. 
 
 me rich, and I believe I have prayed too hard, for 
 I think he means to drown me out." Of his 
 manner his son writes : " It was said to have been 
 easy and familiar to the last degree. There was 
 no studied beginning nor ending ; nothing of the 
 manner, or the tricks, or the gi-aces of the orator 
 and no approach to them. His business was to 
 persuade those twelve men of the truth of certain 
 propositions ; and he did his work in the most 
 direct, the plainest, and the simplest way. His 
 strength undoubtedly lay in his reasoning. But 
 there was an actual, and I rather think a studied, 
 absence of all appearance of eloquence, and even 
 of technical logic." He would put his foot in 
 his chair, his elbow on his knee, and leaning over 
 begin to talk about the case as a man might talk 
 to a neighbor. On one occasion, one of a jury 
 from whom he had just got a verdict, said to 
 Chief Justice Parker : " "Who is this Mr. Par- 
 sons ? He is not much of a lawyer, and don't 
 look or talk as if he ever would be one ; but he 
 seems to be a real good sort of a man." He 
 seems to have had much such a manner as Sir 
 James Scarlett. His arguments were very brief, 
 generally less than half an hour. If he was not 
 eloquent, it was probably because he disdained or 
 deprecated eloquence. It was his opinion that 
 eloquence is a great hindrance to a lawyer, and 
 of no great value anywhere. He believed that 
 
Chief Justice Paesons. 189 
 
 " from the days of Moses and Aaron to our own 
 all the world over, the men who do not talk gov- 
 ern the world, and make use of the men who 
 do." Daniel "Webster, when a law student, wrote 
 of him : " The characteristic endowments of his 
 mind are strength and shrewdness. Strength, 
 which enables him to support his cause ; shrewd- 
 ness, by which he is always ready to retort the 
 sallies of his adversary. His manner is steady, 
 forcible, and perfectly perspiAious. He does not 
 address the jury as a mechanical body to be put 
 in motion by mechanical means. He appeals to 
 them as men, and as having minds capable of re- 
 ceiving the ideas in his own. Of course, he 
 never harangues. He is never stinted to say just 
 so much on a point, ^nd no more. He knows by 
 the juror's countenance when he is convinced • 
 and therefore ne^{er disgusts him by arguing that 
 of which he is already sensible, and which he 
 knows it is impossible more fully to impress. A 
 mind thus strong, direct, prompt, and vigorous, is 
 cultivated by habits of the most intense applica- 
 tion. A great scholar in every thing, in his pro- 
 fession he is peculiarly great. He is not content 
 with shining on occasions ; he will shine every- 
 where. As no cause is too great, none is too 
 small for him. He knows the great benefit of 
 understanding small circumstances. It is not 
 enough for him that he has learned the leading 
 points in a cause ; he will know every thing. His 
 
J 90 Chief Justice Parsons. 
 
 argument is therefore always consistent with it- 
 self, and its course so luminous, that you are ready 
 to wonder why any one should hesitate to follow 
 him. Facts which are uncertain, he with so 
 much art connects with others well proved, that 
 you cannot get rid of the former without disre- 
 garding the latter. He has no fondness for pub- 
 lic life, and is satisfied with standing where he is, 
 at the head of his profession." So uniform was 
 his success, that it -ft^as foolishly said of him that 
 he never lost a case. This, he himself was ac- 
 customed to say, was literally true, for the reason 
 that he never had one ; " but my clients have 
 lost a great many ; but their cases were not 
 mine." 
 
 "When Parsons was elevated to the bench, he 
 was for some years very unpopular with the lead- 
 ing lawyers. He tried to reduce the trial of cases 
 to his own notions. The cruelest thing he did 
 was to limit counsel in their addresses to the jury, 
 and to prohibit their discussion of untenable 
 propositions. He insisted on their stating their 
 points to the court before commencing their 
 summing up, and was quite apt to remark, as 
 was our late Judge Grover, " I don't think there 
 is any thing in that point." This raised a furi- 
 ous storm against him all over the Common- 
 wealth, and nothing but his imperturbable good 
 nature and his unquestioned fairness enabled him 
 successfully to persevere. One distinguished 
 
Chief Justice Parsons. 191 
 
 lawyer expostulating said, " Your honor did not 
 argue your own cases in the way you require us 
 to." " Certainly not, but that was the judge's 
 fault, not mine," was his reply. Still, he might 
 well have recalled his own discontent where he 
 was arguing to Judge Ellsworth, in the great 
 Connecticut case, against the jurisdiction of the 
 court, and the judge cut him off, saying, " This 
 court will take care of its own jurisdiction." 
 Parsons went so far on one occasion as to order 
 the sheriff to commit Mr. Blake to jail, because 
 lie persisted in arguing certain points to the jury, 
 an order which he considerately suspended before 
 execution. This scene was the subject of a con- 
 temporary caricature. The lawyers, finding it 
 impossible to disturb his equanimity or shake his 
 resolve, at length gracefully yielded. Tristram 
 Pm-gess, of Phode Island, once felt so aggrieved 
 by the judge's conduct in a trial, that after court 
 he harangued a crowd outside the court-house on 
 the subject of the judge's insupportable tyranny." 
 N^oticing that some of his hearers were looking 
 back and laughing, he soon discovered the judge 
 himself on the outskirt of the crowd, listening 
 patiently to him, and presently coming up, he said 
 " Brother Purgess, if you get through in time, I 
 wish you would come in and dine with me." " I 
 give it up," said Burgess, and taking his arm 
 went with him. So great was the reliance on 
 
192 Chief Justice Parsons. 
 
 his fairness, that many times counsel would de- 
 cline to sum up their cases, and content themselves 
 with his charge. He dispatched business with 
 unprecedented rapidity and correctness. He 
 formed the law of insurance and of. real estate 
 for the infant Commonwealth. 'President Dwight 
 thus speaks, in his Travels, of his charge to a 
 ' grand jury at Plymouth : " I know not that I 
 have ever heard a moral discourse which was 
 conducted with more skill. The scheme of 
 thought was in the highest degree clear and cor- 
 rect ; and the style eminently distinguished for 
 its perspicuity, precision, and strength. The 
 definitions were obvious and complete ; the argu- 
 ments conclusive, and the discussions introduced 
 exactly where they were necessary, and were ex- 
 tended no further than they were necessary. The 
 whole was so concise that from almost any writer 
 it would have been obscure ; yet it was managed 
 so as to become more intelligible from its suc- 
 cinctness. It was received by a numerous audi- 
 ence with a solemn, profound, and eager atten- 
 tion. After the charge was ended we dined with 
 the court, and were not a little gratified with the 
 conversation at the table." Parsons was an ex- 
 pert special pleader, and laid great stress on his 
 science. His son relates that once a pleader had 
 filed a declaration with thirteen counts, to which 
 the defendant had interposed a still greater num- 
 
Chief Justice Pabsons. 193 
 
 ber of special pleas, and the judge pronounced 
 all the counts and all the pleas bad — an impar- 
 tiality quite Ilerodian ! His opinions are monu- 
 ments to his legal genius and learning, although 
 inelegant and unadorned. Judge Putnam said 
 of them : " As light and spongy articles are re- 
 duced to portable size by hydraulic pressure, so 
 the verbose readings of the law were by the 
 force of his great mind reduced to clear practical 
 rules." His marvelous memory enabled him to 
 deliver the most admirable opinions, ex tempore, 
 stating the facts of each case with the greatest 
 exactness and clearness. His acceptance of the 
 judicial office was a great pecuniary sacrifice, for 
 his highest salary was $3,500, and he relinquished 
 a practice worth $10,000 annually. 
 
 The reader will not fail to remark .one pecu- 
 liarity in Judge Parsons' career. Although he 
 was only twenty -five years of age when the Kev- 
 olution broke out, he does not seem to have iden- 
 tified himself with the patriot party, either in 
 action or in counsel. Possibly his training under 
 the tory Judge Trowbridge had something to do' 
 with this. At all events, his political conduct 
 was always characterized by conservatism. He 
 played an important part in the councils of the 
 Federalist party. He was a leading member of 
 the famous Essex Junto, and the author of the 
 report called " The Essex Kesult," setting forth 
 25 
 
194 Chief Justice Paesons. 
 
 the conclusions of that conclave in respect to the 
 proposed constitution. Only four months before 
 the Declaration of Independence he had pro- 
 nounced the charge, that the design of the colo- 
 nies was independence, to be groundless. In this, 
 however, there was nothing any more remarkable 
 than the persistent avowals of the free States, 
 during the late rebellion, that it was no part of 
 their plan to emancipate the slaves. The inev- 
 itable controls men despite their blindness. After 
 the colonies pronounced in favor of independence, 
 Parsons was consistently but moderately patriotic. 
 He was the author of the famous " Conciliatory 
 Resolutions," in the convention of Massachusetts, 
 on the adoption of the Federal Constitution, 
 which were thought, at the time, to have saved 
 the Constitution. But his characteristic indiffer- 
 ence to popular applause prevented his avowing 
 the authorship of either of these important State 
 papers at the time. 
 
 Parsons was a man of wit. Two of the anec- 
 dotes told by his son will illustrate this quality. 
 ■ On one occasion, Mr. Sullivan (afterward Gov- 
 ernor) had had some bitter words with him in a 
 trial, and while Parsons was arguing the cause, 
 Sullivan picked up his antagonist's hat, a broad- 
 brimmed black one, and wrote on it with chalk, 
 " This is the hat of a damned rascal," and held it 
 up in view of the bar. Parsons stopped, took 
 
Chief Justice Parsons. 195 
 
 his hat, held it up to the court, and said, " May- 
 it please your honor, I crave the protection of 
 the court. Brother Sullivan has been stealing 
 my hat, and writing his own name on it ! " The 
 other story illustrates Parsons' ready resources, 
 and at the same time the absurd laws of Connecti- 
 cut. He had been at Hartford on business, 
 toward the end of winter, in a close carriage 
 on runners ; there were signs of a thaw, and he 
 prepared to leave on Sunday. The innkeeper 
 warned him that he would be arrested, but he 
 pushed on. After he had rode a few miles, the 
 tithing-man came up with him and ordered him 
 to stop. Parsons ordered the driver to turn out 
 to the side of the road, fasten his horses, and 
 come inside the carriage. "But I want you to 
 turn back with me," said the officer. " Wo," said 
 Parsons, " you are only authorized to stop me ; 
 you have done so, and here I am going to re- 
 main." The officer gave it up, returned home 
 alone, and Parsons pursued his journey undis- 
 tm'bed. 
 
 Parsons was a scholar of large and varied ac- 
 quirements. He was an unceasing reader and 
 student. He was a great reader of novels. His 
 library was one of the largest and most valuable 
 in the country, consisting of five or six thousand 
 volumes, nearly all, of course, imported. Math- 
 ematics was one of his amijsements and relaxa- 
 
196 Chief Justice Parsons. 
 
 tions ; his biographer prints in an appendix two 
 learned papers written by his father, one an " Es- 
 say on Parallel Lines," the other a " Formula for 
 extracting the roots of Adfected Equations." 
 Bowditch, in his work on Navigation, speaks of 
 him as " a gentleman eminently distinguished for 
 his mathematical acquirements," and credits him 
 with an improvement on Mitchell's method of 
 determining the longitude by lunar observations. 
 He calculated eclipses when a student in college. 
 He furnished rules and methods for Pike's Arith- 
 metic. He was so accomplished a Grecian, that 
 Professor Luzac of Leyden spoke of him as " a 
 giant in Greek literature." He knew French ; 
 he was skilled in Botany. At the age of sixty he 
 read Dante in the original. He was curious in 
 microscopy, telescopy, electricity, optics, and 
 chemistry, and was continually experimenting in 
 them. His house was full of the best apparatus 
 and instrum.ents of the- day in all these branches 
 of science. In a time when science was regarded 
 with indifference, if not with aversion, loj the 
 common people, he was a prying investigator and 
 an ardent lover of her mysteries. " One day," 
 says his biographer, speaking of certain lenses 
 which he had arranged to reflect persons walking 
 in the street, "a domestic was sent for by him for 
 some purpose while using this apparatus, and at 
 the moment she came in, persons were seen upon 
 
Chief Justice Parsons. 197 
 
 the wall, walking with their heads downwards. 
 She retreated as soon as she could, and told the 
 stoiy ; and he was obliged to change the room for 
 one which Itooked, not into the street, but into 
 his garden ; for complaint was made to him that 
 certain persons of the fair sex were afraid to walk 
 by his house ! " He was, in short, a pioneer in 
 science, as well as in law, in our uncultivated 
 country. He was also a skillful mechanic, and 
 kept a variety of tools, with which he was fond 
 of working, making bows and arrows and rabbit- 
 hutches for his son, and models to illustrate prob- 
 lems in conic sections. He had so accurate a 
 knowledge of the mechanic arts, that having oc- 
 casion to give directions for repairs on his car- 
 riage, which had broken down when he was 
 traveling, the blacksmith, the wood-worker, and 
 the painter each claimed him as one of his trade. 
 In his private and domestic character, he pre- 
 sents an amiable aspect. He was full of fun of 
 the most rollicking kind, and was ready to join 
 in the sports of his children. His son gives us 
 specimens of his talent for rhyming, exercised for 
 the amusement of the children, in riddles and 
 letters. One of his impromptu riddles is well 
 worth quoting : 
 
 " My first relates connected words ; 
 My second forms the sharpest swords ; 
 My whole supports the forest's pride, 
 Dispensing heat on every side." 
 
198 Chief Justice Pabsons. 
 
 This referred to the andiron. In a letter, quoted 
 by the biographer, the judge writes to his little 
 daughter, from Boston, in verses as good as many 
 of Swift's, that he has bought for»the children 
 some books filled with stories 
 
 " Such as poor Gulliver, of old. 
 To make folks merry, often told,-^ 
 Of little men, six inches high, 
 Of larks not bigger than a fly, 
 Of sheep much less than common rats, 
 And horses not so big as cats ; 
 He next of monstrous giants talked. 
 High as a steeple when they walked ; 
 Whose beasts, and birds, and even flies, 
 Were all proportioned to that size." 
 
 He was fond of horses and tobacco ; also of good 
 " old Jamaica." He put his tobacco to good use 
 on one occasion at least ; — he captured an eagle, 
 that had alighted on his fence, by quietly ap- 
 proaching it and blowing tobacco smoke in its 
 face until it was stupefied. He was fond of so- 
 ciety, and of talking. When judge G-reenleaf 
 told his daughter, Elizabeth, that he was going 
 to bring Mr. Parsons home to dinner with him, 
 the young lady, who had then never met him, 
 exclaimed, " T)o you mean Mr. Parsons whom 
 everybody is talking about ? — why, I shall not 
 dare to utter a word." " Well," said the judge, 
 " you need not ; he will talk for himself, and 
 you too, if you wish it." His love of- science 
 and mechanics, and his curious absent-mindedness 
 and forgetfulness of names, are amusingly illus- 
 
Chief Justice Parsons. 199 
 
 trated in an anecdote told by his biographer. 
 He had imported a set of Count Euraiord's ap- 
 paratus for cooking, which he used in his house. 
 Having been engaged one day in court in the 
 trial of an important insurance case about a 
 schooner, he came home to dinner, to which he 
 had invited Judge and Mrs. Seaver, stately peo- 
 ple of the old school. Before he sat down he 
 was called by the cook to remedy some trifling 
 disturbance in the aqueduct of the apparatus. 
 When he commenced carving at table, he cried 
 out to Mrs. Seaver, who sat at the other end of 
 the table, " Mrs. Schooner, all the food on this 
 table was cooked in the aqueduct ! " This was a 
 case of what Mr. Kichard Grant White calls 
 " heterophemy." The judge was very careless in 
 his dress, so much so that his wife usually traveled 
 the circuit with him to keep him tidy. Webster 
 thus describes his personal appearance : " The- 
 ophilus Parsons is now about fifty-five years old ; 
 of rather large stature, and inclining a little to 
 corpulency. His hair is brown, and his com- 
 plexion not light. His face is not marked by any 
 striking feature, if we except his eyes. His fore- 
 head is low, and his eyebrows prominent. He 
 wears a blue coat and breeches, worsted hose, a 
 brown wig, with a cocked hat. He has a pene- 
 trating eye, of an indescribable color. When, 
 couched under a jutting eyebrow, it directs its 
 beams into the face of a witness, he feels as if it 
 
200 Chief Justice Parsons. 
 
 looked into the inmost recesses of his soul. When 
 Parsons intends to make a learned observation, 
 his eyebrow sinks ; when a smart one, — for he 
 is, and wishes to be thought, a wit, — it rises." 
 The portrait prefixed to the Memoir represents a 
 strong but uncouth face, with a horribly disor- 
 dered wig. He had strong religious convictions, 
 and was a great student of the Bible. He suf- 
 fered from occasional fits of h,ypochondria. His 
 last words were strikingly similar to those of 
 Chief Justice Tenterden : — after a long suspense 
 of speech, he exclaimed : " Gentlemen of the 
 jury, the case is closed, and in your hands. 
 You will please retire and agree upon your ver- 
 dict." 
 
 Such was the earliest of that grand group of 
 lawyers who founded and embellished our juris- 
 prudence. His was one of those massive charac- 
 ters which lie at the basis of our civilization. 
 We might liken him to a pillar of granite from 
 the hills of New Hampshire or the quarries of 
 Quincy, — solid, unyielding, and enduring, yet 
 of fair proportions and bearing a durable polish, 
 not the mere veneer of etiquette and superficial- 
 ity, but the brilliancy which can exist only upon 
 a deep and strong foundation. True descendant 
 of those hardy and single-hearted men who set 
 foot on Plymouth Rock, he was the true repre- 
 sentative of that sterling people who have stamped 
 
Chief Justice Paesons. 201 
 
 their mark on this continent from Ifew England 
 to Oregon, and have shed upon the Uttle Com- 
 monwealth of Massachusetts an undying and 
 world-wide glory. 
 
 26 
 
JOHIsr MAESHALL. 
 
 IT is a popular idea that the offspring of great 
 men are usually degenei'ate. The idea prob- 
 ably owes its currency to the prominence of the 
 instances in which it has occurred, but that it is 
 fallacious will be apparent f I'om the review of the 
 biographies of the distinguished men of the 
 world. Philip and Alexander ; the long line of 
 Scipios ; Hamilcar and Hannibal ; the succes- 
 sion of Martel, Pepin, and Charlemagne, fa- 
 ther, son, and grandson ; Henry the Second, of 
 England, and Richard the First ; Hen'-y the 
 Eighth, and Elizabeth; Sir John More, and Sir 
 Thomas More ; Bacon, the lord-keeper, and Ba- 
 con, the philosopher ; William, Prince of Or- 
 ange, and Prince Maurice, of l^assau, one of the 
 greatest captains of his time ; the three Holbeins, 
 grandfather, father, and son, painters, to say 
 nothing of several brothers and uncles ; David 
 Teniers, and his sons David and Abraham, paint- 
 ers ; Julius Scaliger, the second of scholars and 
 critics, his son Joseph being the first ; Frederick 
 William, and Frederick the Great ; Moses Men- 
 
John Marshall. 203 
 
 delssohn, the philosopher, and his greater grand- 
 son, Felix Mendelssohn, the musician ; and com- 
 ing down to our country and times, the distin- 
 guished family of Adams, which has furnished in 
 father and son two actual Presidents, and in 
 grandson one permanently contingent President ; 
 Ezekiel "Webster and his son Daniel ; Chief Jus- 
 tice Parsons and his son, Professor Parsons; 
 Chancellor Kent and his son, Judge William 
 Kent ; President Yam Buren and his brilliant 
 son, John ; all these instances are too marked to 
 give any countenance to the theory that genius is 
 not hereditary, and fairl}'' establish the theory 
 that talents descend in arts, in letters, in arms, in 
 law, and in statesmanship. Therefore, it is not 
 surprising that Col. Thomas Marshall, the father 
 of the subject of this sketch, a small Virginian 
 planter, of narrow education, was a man of a 
 high order of talents and possessing the reputa- 
 tion of extraordinary ability. It is moreover 
 noteworthy that his fifteen children, females as 
 well as males, all possessed superior intellectual 
 gifts. He, himself, superintended the education 
 of his eldest son, John, born in 1755, and early 
 formed his taste for English literature, especially 
 for history and poetry. At the age of twelve 
 John had transcribed Pope's Essay on Man, and 
 some of his other essays. This love of the class- 
 ics of our tongue never decayed, and he always 
 
204 John Maeshax,l. 
 
 preserved his fondness for liberal scholarship. 
 The young man never received any collegiate ed- 
 ucation, and indeed had scarcely any schooling 
 except private tuition, which he supplemented by 
 assiduous self -instruction. When he was twenty 
 years old the conflict between the niother-country 
 and the colonies broke out, and young Marshall, 
 enlisting, was raised to the rank of captain, and 
 fought with distinction at Brandy wine, Gerlnan- 
 town, and Monmouth. A* the close of the war 
 he entered upon the study of the law, and at- 
 tended a course of lectures on natural philosophy 
 by Mr. Madison, president of William and Mary 
 College, and was admitted to practice in 1780. 
 He was soon elected to the State legislative and 
 the executive council. In 1783, he married Miss 
 Ambler, daughter of the State treasurer, mid this 
 union continued nearly fifty years. Marshall be- 
 came an ardent politician, espousing the. princi- 
 ples of Washington and Madison. He was a 
 member of the Virginia convention called to rat- 
 ify the Federal constitution, and there displayed 
 superior powers. In 1789, 1790, and 1791, he 
 represented the city of Richmond in the State 
 legislature, and again in 1795. In the latter year 
 he advocated the Jay treaty with Great Britain, 
 with prodigious power and in opposition to the 
 sentiment of his State. It was this speech that 
 first made him famous. Washington offered him 
 
John Marshall. 205 
 
 the attorney-generalship and ministry to France, 
 but these offers were declined. Shortly afterward 
 he accepted the appointment as envoy to France 
 with Pinckney and Grerry. His State papers pre- 
 pared on this mission have universally been ad- 
 mired. On his return, after refusing many solici- 
 tations to stand for Congress, he at length yielded 
 to the persuasion of "Washington, and was elected 
 to the lower house in 1Y99. During his candidacy 
 he declined the offer of a seat on the Supreme 
 bench in the place of Justice Iredell, deceased. In 
 1800, without seeking the office, he was appointed 
 Secretary of War. In 1801, he was appointed 
 Chief Justice of the Federal Supreme Court, and 
 held this office till his death in 1835. 
 
 The life of Marshall thus covered the whole 
 formative period of our Kepublic, and in every 
 position he .was a leader. He was a leader, too, 
 without any of the elements of popularity. He 
 had none or little of the imagination and elo- 
 quence of "Webster, of the grace and wit of Wirt, 
 of the vehemence and enthusiasm of Pinkney, 
 of the elegance and rounded learning of Story. 
 And yet he led the bar of his State, he led his 
 party in Congress, and he became confessedly the 
 greatest judge who ever sat in our courts, and 
 the greatest the world ever saw save Mansfield, 
 by sheer unadorned strength of logic, and by the 
 
206 John Marshall. 
 
 personal force and purity of his character. His 
 life presents but little scope to the biographer, and 
 yet perhaps next to Washington it is the most 
 important life in the early annals of the Federal 
 Union. 
 
 The political questions in Marshall's day were 
 singularly like those which have agitated the 
 country during the last fifteen years. " The 
 question of the continuance of the Union," says 
 one of his biographers, " or the separation of the 
 States, was freely discussed, and what is al- 
 most startling now to repeat, either side of it 
 was maintained without reproach." This pri- 
 mary question, and the relation of debtor and 
 creditor, the issue of paper money, the collection 
 of taxes, the preservation of the public faith, and 
 the administration of civil justice, were the great 
 topics of the time. The legal questions which 
 early came before the Supreme Court were also 
 semi-political in their nature. The (iecisions of 
 that court, declared in Marshall's opinions, lie at 
 the very foundations of this government. For 
 example, the doctrine of State rights came fre- 
 quently and in Protean shapes before the court. 
 Some of the questions decided by that court are 
 so elementary that it now seems strange that they 
 should ever have been debated. The earliest 
 and most important of these decisions is the case 
 of Marbury v. Madison, 1 Cranch, 137, decided 
 
John Maeshall. 207 
 
 in 1803, where it was for the first time held that 
 it is the right and duty of the judicial department 
 to determine the constitiitionality of a legislative 
 act, and if such act be found repugnant to the 
 provisions of the constitution, to declare it null 
 and void. Under this doctrine no less than 
 twenty-six State laws were overruled. 
 
 To give an adequate idea of the importance of 
 Marshall's judicial labors would involve examina- 
 tion of and remark upon the thirty volumes of re- 
 ports containing his opinions. Among the most 
 celebrated of these cases are those of Dartmouth 
 and Girard Colleges ; that of the vessel Nereide; 
 that of MoGullock v. Ma/ryland, involving the 
 right of the State to tax the United States Bank ; 
 and that of Sturges v. CrowningsMeld, involving 
 the constitutionality of State insolvent laws as- 
 suming to discharge pre-existing debts. This 
 case has been immortalized by a poet, for Halleck 
 in " The Croakers," says : 
 
 " call'd from death by Marsliall's power,- 
 
 The ghosts of murdered debts arise." 
 
 Among these cases may also be classed O-ib- 
 ions V. Offden, the JSTew York steamboat case, 
 and that of the Cherokee Indians. The most 
 famous trial at which he ever presided was doubt- 
 less that of Aaron Burr for treason. It is a re- 
 markable fact that in spite of the difficulty and 
 variety of these questions the Chief Justice 
 was overruled by his associates but once. Yery 
 
208 John Maeshall. 
 
 few of these decisions have been departed from 
 sinoe Marshall's day. "Very few have been criti- 
 cised, and criticism upon them generally awakens 
 no sentiment save that of astonishment at the 
 critics' audacity. The JSFereide and Dartmouth 
 College cases have been perhaps of late years 
 more doubted than any others. The latter es 
 pecially has called forth several very elaborate crit- 
 icisms from legal writers. 
 
 Marshall's judicial style is extremely dry and 
 unadorned, — no figures, no illustration, no allu- 
 sion, no quotation. His opinions will never be 
 read for pleasure. But he never fails to be clear, 
 and a geometrical demonstration is not more con- 
 vincing. In the absence of difEuseness and inco- 
 herence his style, after all, seems superior to 
 Mansfield's. He cited very few cases, for in truth 
 there were very few to cite ; the decisions which 
 he made are generally leading cases. In the hear- 
 ing of causes he was conspicuous for his patience, 
 and indeed patience was the chief virtue of a 
 judge in those days and in that court. Mr. Van 
 Santvoord says : " The mode of arguing causes 
 in the Supreme Court at that day was excessively 
 tedious and prolix. Long Chancery bills with 
 overloaded documents, and long common-law rec- 
 ords, with scores of biUs of exceptions attached 
 to them, crowded the docket. I have mentioned 
 the three days' speech of Luther Martin in his 
 
John Marshall. 209 
 
 argument of a single case which lasted nine days. 
 Though this was not perhaps a common occur- 
 rence, still it was no unusual thing for a cause to 
 consume three or four days in the argument. 
 One lasted five days at the term when Story first 
 took his seat, and in this case he says a printed 
 hrief of two hundred and thirty pages, was put 
 into his hands in addition." 
 
 In his simplicity and accessibility Marshall 
 must have resembled our own Kent. One 
 would have liked to be present at the interview 
 when the great commentator called on the Chief 
 Justice at his house. Probably the themes of 
 their conversation were not so high as they would 
 have been on a public interview, but what they 
 were must be left to an American Landor to de- 
 scribe in a new Imaginary Conversation. 
 Doubtless the Chancellor had much to say of his 
 wife " Betsey ; " and the Chief Justice may have 
 spoken of a recent contest of quoits, for which 
 game he preserved the fondness of his youth, or 
 perhaps may have described the last novel he had 
 read, for he was always in the habit of sitting up 
 nights to read novels. The two great men, it is 
 said, visited the " Quoit Club " of Richmond to- 
 gether on that occasion, but whether the Chief 
 Justice then exhibited his skill in the game to 
 his distinguished visitor, we are not informed. 
 Marshall's tender and affectionate nature is dis- 
 2T 
 
210 John Marshall. 
 
 closed in his letters to bis friend Story. The latter 
 relates that Marshall confessed to him that after 
 the death of his wife he rarely passed a night 
 without tears. In his later years he was some- 
 what disturbed hj the fear that his mental facul- 
 ties might fail him, and he had extorted from 
 certain confidential friends the promise to notify 
 him of the first symptoms of decadence. The 
 occasion never arose, but the incident shows how 
 free from vanity, and how trustful of his friends, 
 the great Chief Justice was. 
 
 Mr. Binney^ in his sketch of Marshall, tlms 
 describes him in his youth, as lieutenant of 
 militia : 
 
 " He was abovit six feet liigb, straight and rather slen. 
 der, of dark complexion — showing little if any rosy red , 
 yet good health, the outline of the face nearly a circle, and 
 within that eyes dark to blackness, strong and penetrat- 
 ing, beaming with intelligence and good nature ; an up- 
 right forehead, rather low, was terminated in a horizontal 
 line by a mass of raven black hair of unusual thickness and 
 strength. The features of the face were in harmony with 
 this outline, and the temples fully developed. The result 
 of this combination was very agreeable. The body and 
 limbs indicated agility rather than strength, in which, how- 
 ever, he was by no means deiicient. He wore a purple or 
 pale blue hunting shirt,, and trowsers of the same material 
 fringed with white. A round black hat, mounted with the 
 buck's tail for a cockade, crowned the figure and the man." 
 
 Of his dress in his maturity another writer 
 says : 
 
John Maeshall. 211 
 
 " Habitually he dressed very carelessly; iu the garb, but 
 I should not dare to say in the mode, of the last century. 
 You would have thought he had on the old clothes of a 
 former generation, not made for him by even some super- 
 annuated tailor of that period, but gotten from the ward- 
 robe of some antiquated slop-shop of second-hand raiment. 
 Shapeless as he was, he would probably have defied all 
 fitting, by whatever skill of the shears ; judge then, how 
 the vestments of an age, when apparently coats and 
 breeches were cut for nobody in particular, and waist-coats 
 were almost dressing-gowns, sat upon him." 
 
 In an almost forgotten book, Wirt's " British 
 Spy," we find the best description of Marshall's 
 peculiar personal appearance in his prime. He 
 
 " The * * * * of the United States is, iu his per- 
 son, tall, meager, emaciated ; his muscles relaxed, and his 
 joints so loosely connected, as not only to disqualify him, 
 apparently, for any vigorous exertion of body, but to de- 
 stroy every thing like elegance and harmony in his air and 
 movements. Indeed, in his whole appearance and de- 
 meanor ; dress, attitudes, gesture ; sitting, standing or 
 walking ; he is as far removed from the idolized graces of 
 Lord Chesterfield, as any other gentleman on earth. To 
 continue the portrait ; his head and face are small in pro- 
 portion to his height ; his complexion swarthy ; the mus- 
 cles of his face, being relaxed, give him the appearance 
 of a man of fifty years of age, nor can he be much younger, 
 his countenance has a faithful expression of great good 
 humor and hilarity ; while his black eyes— -that unerring 
 index — possess an irradiating spirit, which proclaims the 
 imperial powers of the mind that sits enthroned within. '' 
 " His voice is dry and hard ; his attitude, in his most effect- 
 ive orations, was often extremely awkward, as it was not 
 
212 John Marshall. 
 
 unusual for liim to stand with his left foot in advance, 
 while all his gestures proceeded from his right arm, and 
 consisted merely in a vehement perpendicular swing of it, 
 from about the elevation of his head, to the bar behind 
 which he was accustomed to stand." 
 
 It is a singular circumstance, that at tiie same 
 period when the ornate and elaborate diction of 
 the older bar was giving place to the strength and 
 simplicity of the school of Webster, precisely the 
 opposite process was going on in respect to his- 
 torical narrative. In history, the public taste, 
 tired of the unadorned simplicity of Hume and 
 his followers, demanded the vividness, pictur- 
 escpieness and the variety illustrated in perfec- 
 tion by Macaulay, Froude, Prescott and M(jtley. 
 Therefore, the same qualities of style which ren- 
 dered Marshall's opinions so convincing, rendered 
 his historical writing intolerable. A dryer book 
 than his Life of Washington it would be diffi- 
 cult to find.' One would as soon think of read- 
 ing a dictionary. And yet, prepared as it was 
 from the original papers of Washington, his work 
 has proved the magazine from which the later 
 biographers have drawn their amplest stores. It 
 was reserved for Irving to adorn and enliven 
 Marshall's facts, and produce a work which has 
 caused posterity to forget that Judge Marshall 
 was once highly esteemed as an author. 
 
 Our country was most fortunate in the posses- 
 sion of Marshall as its first law-giver. There 
 
John Maeshall. 213 
 
 was danger that the powers of the judicial 
 brauch of our g.overnnient, in its eaiiy days, 
 would be usurped by the legislative or ignored by 
 the executive. Only such a man as Marshall 
 could have withstood these tendencies, and se- 
 cured for the law-interpreting power its due weight 
 in the counsels of the nation. This he did most 
 cahnly, most equitably, and most effectually. He 
 taught angry Presidents, and partisan legislatures 
 to bow to the authoritv of law. He made the 
 Supreme Court respectable and respected. His 
 character gave authority to its councils, and his 
 intellect conferred reason on its judgments. 
 During his own life the voice of party was hushed 
 when he opened his lips and mildly pronounced 
 the edicts of the law. In the language of a reso- 
 lution of the Charleston bar upon his death, " the 
 fame of the Chief Justice has justified the wis- 
 dom of the Constitution, and reconciled the jeal- 
 ousy of freedom to the independence 'of the 
 judiciary." The affectionate reverence with 
 which the Chief Justice was regarded by the 
 greatest intellects of our country, is beautifully 
 described by Miss Martin eau, in an account of the 
 Supreme Court, contained in her Retrospect of 
 Western Tramel. She says : 
 
 " I liave watclied the assemblage when the Chief Justice 
 was delivering a judgment, the three judges on either hand 
 gazing at him more like learners than associates ; Webster 
 
214 John Maeshall. 
 
 standing firm as a rock, his large deep-set eyes wide awake, 
 his lips compressed, and his whole countenance in that in- 
 tent stillness which easily fixes the eye of the stranger. 
 Clay leaning against the desk, in an attitude whose grace 
 contrasts strangely with the slovenly make of his dress, 
 his snuflf-box for the moment unopened in his hand, his 
 small gray eye, and placid half-smile conveying an expres- 
 sion of pleasure, which redeems his face from its usual un- 
 accountable commonness. The Attorney-General, his fin- 
 gers playing among his papers, his quick black eyes and thin 
 tremulous lips for once fixed, his small face, pale with 
 thought, contrasting remarkably with the other two. 
 These men, absorbed in what they are listening to, think- 
 ing neither of themselves nor of each other, while they 
 are watched by the groups of, idlers and listeners around 
 them ; the newspaper corps, the dark Cherokee chiefs, the 
 stragglers from the far West, the gay ladies in their waving 
 plumes, and the members of either House that have step- 
 ped in to listen ; all these I have seen constitute one silent 
 assemblage, while the mild voice of the aged Chief Justice 
 sounded through the court." 
 
 To this picture let us add another tribute to 
 the majesty of the court and the character of its 
 greatest Chief Justice, from the lips of the all- 
 accomplished Everett : 
 
 " I do not know what others may think on the subject, 
 but for myself, sir, I will say, that if all the labors, the 
 sacrifices, and the waste of treasure and blood, from the 
 first landing at Jamestown or Plymouth, were to give us 
 nothing else but the Supreme Court of the United States, 
 this revered tribunal for the settlement of international 
 disputes (for such it may be called), I should say the sacri- 
 fice was well made. I have trodden with emotion the 
 threshold of Westminster Hall, and of the Palace of Jus- 
 tice in France ; I thought with respect of a long line of 
 
John Marshall. 215 
 
 illuBtrious chancellors and judges, surrounded with the in- 
 signia of office, clothed in scarlet and ermine, who within 
 these ancient halls have without fear or favor administered* 
 justice between powerful litigants. But it is with deeper 
 emotions of reverence, it is with something like awe, that 
 I have entered the Supreme Court at Washington. JTot 
 that I have there heard strains of forensic eloquence rarely 
 equaled, never surpassed, from the Wirts, the Pinkneys, 
 and the Wehsters ; hut because I have seen there a bright 
 display of the perfection of the moral sublime in human 
 affairs. I have witnessed, how from the low dark bench, 
 destitute of the emblems of power, from the lips of some 
 grave and venerable magistrate, to whom years and gray 
 hairs could add no new titles to respect (I need write no 
 name under that portrait), the voice of equity and justice 
 has gone forth, to the most powerful States of the Union 
 administering the law between citizens of independent 
 States, settling dangerous controversies, adjusting disputed 
 boundaries, annulling unconstitutional laws, reversing er- 
 roneous decisions, and with a few mild words of judicial 
 wisdom, disposing of questions a hundred-fold more impor- 
 tant than those which, within the past year from the plains 
 of Holstein, have shaken the pillars of continental Europe, 
 and all but brought a million of men into deadly conflict with 
 each other. When the Union is broken, when the States 
 are separated, what is to become of your Supreme Court ? 
 * * * When we come to that, the 'day of chancellors 
 and judges is passed. We shall shut up the volumes of 
 Peters, and Wheaton, and Dallas, and Cranch ; we shall 
 repudiate the authority of the Kents, and the Storys, the 
 Walworths, and the Marshalls ; we shall go to the arsenals 
 of the old despotisms for their accursed logic, the ultima 
 ratio regum, and settle all disputes at the point of the pike 
 and the mouth of the cannon." 
 
 The yoxmg grenadier of Brandy wine and 
 Monmouth, fighting the battles of our national 
 
216 John Marshall. 
 
 independence, lived to see his country a great, 
 prosperous, and law-abiding nation, and himself 
 its most honored and influential citizen. It was 
 fitting that to him should be assigned the duty of 
 announcing, in the national House of Representa- 
 tives, the intelhgence of the death of Washing- 
 ton. But who was left of the founders of our 
 nation to announce the death of the Chief 
 Justice ? Of the great lawyers who practiced in 
 his court, Wirt, Pinkney, Dallas, Martin, Dexter, 
 Emmett, and Wells, had passed away, and only 
 Webster was left. All his early associates of the 
 bench had departed. It was time that he should 
 join them. In the unimpaired possession of his 
 mental faculties, his robes of office still upon 
 him, with the unabated admiration and love of 
 his countrymen, he passed away like the great 
 Hebrew law-giver from the awe-struck presence 
 of the Israelites. In this centennial period of our 
 national existence, it is touching to recall the sin- 
 gular incident, tjjiat the old Liberty Bell of Inde- 
 pendence Hall in Philadelphia, whose tones an- 
 nounced oiir nation's birth, was cracked while 
 tolling the news of Chief Justice Marshall's 
 death. Its work was done. It had pealed the 
 departure of Washington, of Adams, and of 
 JejSEerson, and now of Marshall, the last of that 
 unexampled band of patriots, who by their 
 swords and their councils had achieved and 
 
John Maeshall. 217 
 
 confirmed the independence of our country. Of 
 these the last was not the least, and it may well 
 be that the historical student in the future will 
 rank him abreast of "Washington, in the impor- 
 tance of his services, the puiity of his motives, 
 and the lasting influence of his example. 
 
JAMES KENT. 
 
 JAMES KENT was born in 1763, at a place 
 now within the boundaries of Putnam 
 county, in the State of New York. His ances- 
 try were professional men, of liberal education. 
 His father, who was a lawyer, and his paternal 
 grandfather, who was a clergyman, were both 
 graduates of Tale College. His mother was the 
 daughter of a physician. His brother. Moss, was 
 a State senator, member of Congress, county 
 judge, and register in chancery. James' educa- 
 tion was liberal and thorough. He entered Yale 
 College in 1777. In 1779 the college was broken 
 up and the students were dispersed by the in- 
 vasion of New Haven by the British troops. It 
 was during this exile that he met with a copy of 
 Blackstone's Commentaries, the perusal of which 
 formed his resolve at the age of 16 to become a 
 lawyer. He graduated with high reputation in 
 1781, and commenced the study of the law at 
 Poughkeepsie with Egbert Benson, then attorney- 
 general, and afterward one of the judges of the 
 Supreme Ooiirt. His law reading was very ex- 
 
James Kent. 219 
 
 tensive, including G-rotins and Puffendorff, and 
 he also read largely of history, poetry, geography, 
 voyages, and travels. Indeed, the love of read- 
 ing continued his ruling passion through life. 
 Admitted to practice in 1Y85, he spent two 
 months at his native place, Fredericksburgh, but 
 that place proving too solitary, he returned to 
 Poughkeepsie. Here in the same year he mar- 
 ried. Sensible of the deficiencies of the college 
 curriculum, especially in classic training — the 
 only Greek then read at Yale being the New 
 Testament, and the only Latin, Virgil, part of 
 Horace, and Cicero's select orations — he resolved 
 to extend his acquaintance with the ancient and 
 modern authors by a course of self -instruction. 
 He divided the day time into five portions : rising- 
 early he read Latin till 8, then Greek till 10, law 
 during the rest of the forenoon ; in the afternoon 
 he gave two hours to French, and the rest of the 
 day to English authors. This course he con- 
 tinued until he became a judge. He read Homer, 
 Xenophon, and Demosthenes, and his Latin and 
 French he kept up throughout his life. He then 
 commenced the formation of his library, which 
 finally extended to very large dimensions, and 
 became, next to his family, his chief source of en- 
 joyment. He embraced the federal side in poli- 
 tics, and became the friend of Jay and Hamilton. 
 In 1790 and 1792 he represented Dutchess 
 
•220 James Kent. 
 
 county iu the State assembly, and about this time 
 unsuccessfully ran for Congress. In 1793 he re- 
 moved to New York. In this year he was ap- 
 pointed professor of law in Columbia College, 
 and commenced the delivery of lectures in 1794, 
 which were well attended. A second course, the 
 next year, was less well patronized, and he was 
 discouraged from delivering another. The first 
 three lectures were afterward published, but the 
 sale did not reimburse the expense of publication. 
 In 1796 he was appointed master in chancery, a 
 lucrative office. In the same year he was sent to 
 the legislature from the city of ISTew York. The 
 next year he was, withoiit solicitation and unex- 
 pectedly to himself, appointed recorder of the 
 city. The emoluments from this office and his 
 mastership were so great that he relinquished the 
 active business of his profession, for which he 
 never seems to have had much liking, and to 
 which, from constitutional diffidence and secluded 
 habits, he seems not to have been specially 
 adapted. In 1798 Grovernor Jay appointed him 
 junior judge of the Supreme Court. He then 
 returned to Poughkeepsie, but the next year re- 
 moved to Albany, where he continued to reside 
 till 1823. In 1800 he was appointed one of the 
 commissioners to revise the Statutes. In 1804 
 he was appointed chief justice, which position he 
 held till 1814. In the latter year he was ap- 
 
James Kent. 221 
 
 pointed chancellor, and held this office till 1823, 
 when, having attained the age of sixty years, he 
 became disqualified from further service by the 
 constitution of the State. In 1824: he again ac- 
 cepted the position of law professor at Columbia 
 College, removed to the citj^ of ISTew Tork, and 
 then commenced the delivery of those lectures 
 which he enlarged into his immortal Commen- 
 taries. He died in 184Y, at the age of eighty- 
 four years. 
 
 In even a greater degree than Mansfield in 
 England, and Parsons and Story in Massachu- 
 setts, Kent must be regarded as the creator of 
 the law which he pronounced from the bench. 
 When he took his seat on the bench the law was 
 iia embryo ; every thing was vague and uncer- 
 tain ; there were no reports of the Supreme 
 Court, nor any known or established precedents. 
 The j'ftdges generally pronounced their opinions 
 orally, and without much promptness or regular- 
 ity. Kent introduced the j^ractice of delivering 
 written opinions in all cases of importance, and of 
 deciding the cases without- delay. During the 
 last three or four years of his sitting in the Su- 
 preme Court he had every thing his own way ; 
 he was willing to do all the work, and his col- 
 leagues were willing he should. Thus, at the 
 October term, 1811, (8th Johnson), he wrote all 
 the opinions, some sixty in number, and headed 
 
222 James Kent. 
 
 them ^^j)er curiam^'' to save the feelings of his 
 associates. In the Court of Chancery, also, there 
 were no precedents, except a few cases heard in 
 the Court of Errors on Appeal, and reported by 
 Johnson. It is said that during the whole period 
 of his chancellorship, not a single opinion or dic- 
 tum of his predecessors was cited. His opinions, 
 collected in twenty-three volumes of reports, 
 while they scarcely yield to those of Mansfield 
 and Story in exhaustive and universal learning, 
 excel them in clearness and felicity of expression. 
 He doubtless felt that he was forming the law 
 for future generations, for he delighted to leave 
 no aspect of the subject of examination unscan- 
 ned, and his diota have furnished the substantial 
 grounds of countless subsequent adjudications. 
 Somewhat too difEuse and extended, therefore, to 
 be regarded as perfect models of judicial decis- 
 ions, their purpose and use must not be lost sight 
 of, nor must it be forgotten that the judge was 
 acting the part of preceptor as well as that of ar- 
 bitrator. To these opinions, his successors, and 
 the profession, not only in this State, but through- 
 out the country, have resorted for more than half 
 a century as to an oracle. To the modest and 
 arduous labors of Kent many an infant commun- 
 ity owes the greater part of its jurisprudence and 
 much of its political security and peace. On his 
 retirement from office, the bar of the city of New 
 
James Kent. 223 
 
 York presented him an address, containing the 
 following expressions : " During this long course 
 of services, so useful and honorable, and which 
 will form the most brilliant period in our judicial 
 history, you have by a series of decisions, in law 
 and equity, distinguished alike for practical wis- 
 dom, profound learning, deep research, and ac- 
 curate discrimination, contributed to establish the 
 fabric of our jurisprudence on those sound prin- 
 ciples that have been sanctioned by the experi- 
 ence of mankind, and expounded by the vener- 
 able and enlightened sages of the law. Though 
 others may hereafter enlarge and adorn the edi- 
 fice, Avhose deep and solid foundations were laid 
 by the wise and patriotic framers of our govern- 
 ment in that common law, which they claimed 
 for the people as their noblest inheritance, your 
 labors on this magnificent structure will forever 
 remain eminently conspicuous, commanding the 
 applause of the present generation, and exciting 
 the admiration and gratitude of future ages." 
 This, although the inevitable language of contem- 
 porary compliment, has proved prophetic and un- 
 exaggerated. A similar address, presented to 
 him by the bar at Utica, contains the statement 
 that " in the space of little more than nine years, 
 an entire and wonderful revohition in the admin- 
 istration of equity has been accomplished," and 
 an apt reference to Blackstone's account of a sim- 
 
224 James Kknt. 
 
 ilar revolution wrought in the English Court of 
 Chancery, in the same length of time, by Sir 
 Heneage Finch, who became chancellor in 1673. 
 Story says of Kent's judicial labors : " It re- 
 quired such a man with such a mind, at once lib- 
 eral, comprehensive, exact and methodical; al. 
 ways reverencing authorities and bound by decis- 
 ions ; true to the spirit, yet more true to the let- 
 ter of the law ; pursuing principles with a severe 
 and scrupulous logic, yet blending with them the 
 most persuasive equity ; it required such a man, 
 with such a mind, to unfold the doctrines of 
 chancery in our country, and to settle them upon 
 immovable foundations." 
 
 But it is to his Commentaries that Kent owes 
 his wide-spread and enduring fame. The first 
 book placed in the hands of the American law 
 student ; the source to which the experienced 
 practitioner, after wearying himself among the 
 crudities of other elementary writers and the ir- 
 reconcilable disagreements of judicial decisions, 
 still resorts with confidence ; an authority of the 
 supremest influence in our courts ; these Com- 
 mentaries have thus far been without a rival, and 
 probably can never be displaced so long as our 
 present system of jurisprudence prevails. Story 
 prophesied rightly, when he wrote, in 1 832 : 
 " My deliberate judgment is that your work will 
 constitute the basis of the most enviable fame, 
 
James Kent. 225 
 
 that of being the American Blackstone ; a title of 
 which jou can never be robbed, and which must 
 be as enduring as our jurisprudence." God 
 makes the folly, as well as the wrath, of man to 
 praise Him, and the stupid enactment of the 
 New York Constitution, which turned its judges 
 out of office at the age of 60, has atoned for all 
 the injustice it wrought, by giving tis Kent's 
 Commentaries. 
 
 Kent was modest, simple, guileless and free 
 from envy. He never sought, but rather shun- 
 ned the glare of public life, and yet was unaffect- 
 edly touched by the marks of popular reverence 
 which he received. In 1823, after his retirement, 
 he paid a visit to Boston, where he was received 
 with the homage due to his merits ; Ticknor gives 
 an interesting account of the lionizing of the sim- 
 ple-hearted Chancellor. He says : " He is, in 
 ■ his conversation, extremely active, simple and en- 
 tertaining, and I know not when we have had 
 among us a man so much to my mind in all 
 things. * * * Everybody was delighted with 
 him. His whole visit among us was an unbroken 
 triumph, which he enjoyed with the greatest 
 openness." At Mr. Quincy's, John Quincy 
 Adams "made a most extraordinary attack on 
 the character of Lord Chancellor Bacon, saying 
 that his Essays give proof of a greater corrup- 
 tion of heart, of a more total wickedness than 
 29 
 
226 James Kent. 
 
 any book he ever saw. Our New York Chan- 
 cellor expressed the most simple and natural as- 
 tonishment at this, and we got over the matter 
 the next day, at dinner, by drinking to ' the 
 memory of Chancellor Bacon, with all his faults,' 
 a toast which Mr. Prescott evidently gave with 
 the greatest satisfaction." "Indeed, the Chan- 
 cellor Seemed to give an uncommon stir and 
 brightness to men's faculties, while he was with 
 us, * * * there seemed to be a happy and 
 healthful excitement of the intellectual powers 
 and social feelings of all with whom he came in 
 contact, that was the evident result of his rich 
 talents and transparent simplicity of character, 
 and which I have never known to be produced 
 among us in the same degree by any other indi- 
 vidual." Ticknor also tells of a famous din- 
 ner of the Phi Beta Kappa Society, of Harvard 
 University, at which the Chancellor was the' 
 chief guest. He says : " The best toasts we ever 
 had in this part of the country were given, on re- 
 quisition from the chair, at an instant's warning, 
 and the succession was uninterrupted. Judge 
 Parker gave, ' The happy climate of New York, 
 where the moral sensibilities and intellectual en- 
 ergies are preserved long after constitutional de- 
 cay has taken place;' and Judge Story gave, 
 ' The State of New York, where the law of the 
 land has been so ably administered that it has be- 
 
James Kent. 227 
 
 come the land of the law ;' to which the Chancel- 
 lor instantly replied, ' The State' of Massachu- 
 setts, the land of Story as well as of song ;' and 
 so it was kept up for three or four hours, not a 
 soul leaving the table. At last the Chancellor 
 rose, and the whole company rose with him, and 
 clapped him as far as he could hear it, and then 
 all quietly separated. It was the finest literary 
 festival I ever witnessed, and I never saw any- 
 body who I thought would enjoy it more than 
 the Chancellor did. * * * I really think he 
 is not only one of the most powerful, but one of 
 the most interesting men I ever saw." On one 
 occasion the Chancellor told Mr. Kirkland that 
 he was going to Richmond, and he continued : 
 " While there, I mean to call on Chief Justice 
 Marshall. We don't know each other ; I shall 
 not announce my name at the door, but shall go 
 in, and when I see him, shall ask if this is Chief 
 Justice Marshall ? On his answering in the affirm- 
 ative, I shall say, ' this is Chancellor Kent.' He 
 will be glad to meet me as I to meet him, and 
 the Justice and the Chancellor will have a royal 
 time." According to the Richmond newspapers, 
 the Chancellor actually carried out his plan to 
 the letter, sayiag to the Chief Justice that, as he 
 was not certain of meeting him in the next world, 
 he was determined to see him in this. 
 
 Sumner gives us a microscopic and amusing 
 
228 James Kent. 
 
 picture of Kent, in 1834. At this time the Chan- 
 cellor lived in a " splendid house " two or three 
 miles from the heart of the city of New York, 
 where a year or two before had been a pasture. 
 The Chancellor's domestic habits, his cordial- 
 ity, frankness and simplicity, his bad grammar in 
 conversation, his talkativeness, his passion for 
 general reading, especially for novels, his remark- 
 able collection of pamphlets, his love of natural 
 scenery, his preference of the common law to the 
 civil on the subject of husband and wife, his vio- 
 lent hatred of General Jackson, — all these traits 
 are remarked. The writer says : " He opens 
 himself like a child. This, though, I attributed 
 to a harmless vanity. He undoubtedly knows 
 that he is a lion, and therefore offers himself 
 readily for exhibition. Indeed, he seemed to be 
 iinfolding his character and studies, etc., to me, 
 as if purposely to let me know the whole bent 
 and scope of his mind. I thought more than 
 once that he was sitting for his picture," — an 
 operation, however, to which the Chancellor 
 seems to have been rather averse, for " he said he 
 would rather sit to be scraped by a barber ten 
 times than to have his portrait taken." When 
 Sumner handed him a letter from Greenleaf, the 
 Chancellor, after reading it, said : " That Mr. 
 Greenleaf is a civU sort of a man ; he was a great 
 loss to the profession at Portland ; makes a fine 
 
James Kent. 229 
 
 professor^ I have no doubt." When Sumner 
 sailed for Europe the kind Chancellor sent him 
 books to read on the voyage. 
 
 The Chancellor and his wife were once travel- 
 ing in a one-horse carriage, long before the days 
 of stage-coaches, to visit friends who lived in the 
 then almost inaccessible region of Canandaigua ; 
 they lost their way, night came on, and finding 
 themselves on a wrong road, they stopped at a 
 log-house, and solicited entertainment for the 
 night. The good woman of the house made them 
 welcQPJie, gave them a homely supper, and ex- 
 plained that she did not expect her husband, who 
 was chopping wood a few miles off, to come home 
 till late. She then told her guests to take her 
 bed in the corner and that she and her husband 
 would sleep in the " chamber," and desiring the 
 Chancellor to let her husband in on his return, 
 she took a candle and climbed up a ladder through 
 a trap-door into the "chamber." The guests 
 then went to bed, but the Chancellor was uneasy. 
 He observed to his wife "Betsey" that the door 
 did not lock ; that he feared the chopper, coming 
 home in the dark, and finding another man in 
 his bed, and apparently with his wife, would be- 
 gin to " chop ;" and that he thought he would 
 get up and put a table against the door, so as to 
 gain time for explanation while the good man 
 was opening the door. He got up accordingly, 
 
230 James Kent. 
 
 and was in the act of pushing the table against 
 the door, when a tall, stalwart figure, in red flan- 
 nel shirt-sleeves, with a big, black cat-skin cap 
 iipon his head, pushed upon the door. He looked 
 like a thunder-cloud for an instant, but was met 
 with this address by the guest in his shirt : " My 
 name is James Kent. I am Chancellor of the 
 State of New York. The woman in that bed is 
 my wife, Betsey. Your wife is up stairs. There 
 is your supper." The explanation, which cer- 
 tainly was not constructed on the theory of plead- 
 ing in the Chancellor's court, made every 1;hing 
 harmonious. The Chancellor was very absent- 
 minded, and in the habit of talking aloud to him- 
 self on the bench. This latter habit caused a 
 great deal of amusement among the bar, and 
 many stories, — some apocryphal — are related of 
 it. It is said that, on one occasion, the Chancel- 
 lor and a friend being invited to a party, the 
 question arose whether they should go in " pumps" 
 or boots. The friend decided on pumps, and they 
 started off together down Broadway. The Chan- 
 cellor soon fell behind his friend a few paces, and 
 glancing down, espied a pair of boots at his side. 
 Instantly he laid hold of the owner of the boots 
 and exclaimed, " Now, my dear fellow, that's not 
 fair ; you agreed to pumps ; you have practiced a 
 positive imposition on me — it's not at all fair." 
 The Chancellor's habit was to retire to bed at ten 
 
James Kknt. 231 
 
 o'clock, but he frequently became drowsy before 
 that time. One evening Judge Catron, of the 
 United States Supreme Court, called late; the 
 room was dimly lighted and the Chancellor was 
 half-asleep ; he understood his visitor's name as 
 Catlin, and fancying him to be the famous lec- 
 turer on the North American Indians, he thus ad- 
 dressed him in his simple, rapid manner : " Glad 
 to see you, Mr. Catlin; your're a wonderful man ; 
 yes, a wonderful man. You'll make your fortune 
 with your exhibition of yourself and your Indian 
 things and curiosities. I advise you to go abroad 
 and show yourself around, for it must and ought 
 to make your fortune, Mr. Catlin." The Chan- 
 cellor had a good deal of dry humor, with all his 
 simplicity. Once when he and his wife were 
 walking, a person whom the Chancellor disliked 
 came up and shook hands with the Chancellor, 
 and the latter said, " Glad to meet you, sir." 
 After they parted, " Betsey " reproached her hus- 
 band with his hypocrisy. To which he replied, 
 " I was glad to meet him ; but I shoi^ld have been 
 very sorry if he had been going our way." A 
 friend once caught him reading the J^ew York 
 Evening Post, and knowing his dislike of its pol- 
 ities, expressed his surprise that he should read 
 such a newspaper. " Why not ? " said the Chan- 
 cellor ; " I want to know what the devil is doing 
 in the world as well as other people." It must 
 
232 James Kent. 
 
 have been after his retirement from office, that 
 his son Wilham, who owned a country place in 
 New Jersey, found his revered father, who was 
 visiting him, at a dangerous height in a cherry 
 tree, enjoying the fruit, and besought the old 
 gentleman to come down at once, carefully, " and 
 ne\'er mind appearances." " My son," replied the 
 cheerful old gentleman, " I am used to elevated 
 stations, and know how and when to descend 
 with dignity." 
 
 The Chancellor's ideas of the qualifications for 
 admission to practice in his court were quite pecu- 
 liar. He thought that if a counselor had been 
 admitted in the Supreme Court, there was no 
 need of a formal examination on his application 
 for admission in the Court of Chancery. He was 
 also of opinion that if a man showed himself un- 
 qualified to practice, the public would soon dis- 
 cover it, and desert him — an opinion from which 
 observation leads us to dissent. When Mr. Kirk- 
 land applied for admission, he caUed at the Chan- 
 cellor's house, and found him shaving himself. 
 The Chancellor asked him if he knew his 90th 
 rule. The applicant replied that he did not. 
 " Go to my brother Moss," — Moss was the Reg- 
 ister — " and he will give you your license." Mr. 
 Levi Beardsley had a similar experience, except 
 that he proved rather better qualified than Mr. 
 Kirkland, for he was able to say that he had 
 
James Kent. 233 
 
 bought the Chancellor's rules, and was going to 
 read them. At least one story told of the Chan- 
 cellor would indicate that he sometimes regretted 
 his leniency in this regard. He had been much 
 annoyed by the irregular practice of a solicitor, 
 who resided in Troy, and who was more vigorous 
 and energetic than learned, and one day a friend 
 found him fuming and talking to himself in vio- 
 lent terms of disparagement of this solicitor. 
 '■'Well, Chancellor," said his friend, "why did 
 you let him in your court ? " " Let him in, let 
 him in, sir ? " replied the Chancellor, impatiently; 
 " I didn't let him in, sir ; he broke in, sir ; he 
 broke in." 
 
 The only picture we have been able to find of 
 Kent upon the bench, is contained in one of 
 Story's letters, written in 1807, before Kent had 
 attained his greatest fame. He writes : " Kent's 
 celerity and acuteness struck me immediately. 
 He seems to be a good lawyer, and dispatches 
 business with promptitude. A little too much 
 haste, and a disposition to interrupt, in some 
 measure lessens the pleasure of seeing him. He 
 has a careless manner of sitting, which, though 
 rather ungraceful, was pleasant to me. It seemed 
 to be the ease of a man who felt adequate to the 
 exigencies of his station. On the whole, if he be 
 not a very great man, I am satisfied he is not 
 humble in his acquirements." These two great 
 30 
 
23i James Kent. 
 
 men became the warmest friends and mutual ad- 
 mirers. Their correspondence shows the hearty 
 good will and entire absence of envy of both. 
 Kent was always a generous man in his estimate 
 of others. 
 
 Kent's two chief idols were his library and his 
 wife " Betsey." He consulted both frequently. 
 His library was one of the largest in the country, 
 in its day, and every book was profusely annota- 
 ted. These books descended to his accomplished 
 son, Judge William Kent, who increased the de- 
 partment of criminal trials, until it formed an 
 unrivaled and most curious collection. Mrs. 
 Kent must have been a woman of sound sense as 
 well as great amiability, for her husband did not 
 scruple to confess that he sometimes " took her 
 opinion," and the great harmony of their domes- 
 tic life was one of the most beautiful circum- 
 stances of the Chancellor's career. The following 
 story is sometimes told of Kent, and sometimes 
 of Judge Cowen, who was also in the habit of 
 talking over his cases with his wife. On coming 
 home from court one day, the Chancellor said to 
 his wife that he had been trying a troublesome 
 question, — whether a certain cooking-stove was a 
 fixture. " Well," asked the practical woman, 
 " does it hake well ? " " Yes, I believe so," was 
 the reply. " Then it's a fixture, or ought to be," 
 said the good lady, unhesitatingly. An opinion 
 
James Kent. 235 
 
 in which all those who had experienced the diffi- 
 culty, common at that day, of getting stoves to 
 " bake well," would undoubtedly have concurred. 
 The Chancellor was fond of a glass of wine, and 
 of martial music. He was passionately fond of 
 geographical researches, and prided himself on 
 being a better geographer than lawyer. He must 
 have forgotten his geography, when in a letter to 
 Thomas "Washington (16 Albany Law Journal, 
 41), he says, that when he resided at Albany, he 
 took " daily delightful country rides among the 
 Catskill or the Vermont mountains," — -or else he 
 had a remarkably fast horse. 
 
 Such was the simple, unpretentious, unselfish, 
 conscientious career of America's wisest lawyer, 
 — a man of whom Wirt said that he knew more 
 law than most of the other judges in the United 
 States put together. God spared his life, so lovely 
 and so honored, to a ripe old age, and granted 
 him the unimpaired use of his faculties. As he 
 had nurtured the infancy of the Court of Chan- 
 cery, so he survived to stand by its grave. His 
 last days were spent in the service of his fellow- 
 men. In the first edition of his Commentaries 
 published after his death, we discover notes which 
 must have been written by him within a few 
 months of his decease. The future generations 
 of lawyers, who will derive their surest and deep- 
 est knowledge of the law from his Commentaries, 
 
236 James Kent. 
 
 can' find no better model for their own private 
 and public conduct, than the republican simplic- 
 ity, modesty, and purity of the author himself. 
 The language of eulogy was in nowise prostitu- 
 ted in the address of the Albany Bar, on Kent's 
 retirement : " Still, the members of the Bar and 
 your fellow-citizens cannot but deeply deplore the 
 loss of a learned and upright judge, who has 
 marked the great outlines of our judicial system, 
 and whose decisions have elevated the character 
 of our courts to a high rank in the nation ; of an 
 accomplished scholar, whose various learning has 
 been devoted to the illustration and embellish- 
 ment of legal science ; of a warm and generous 
 patron of young men, encouraging them in the 
 career of usefulness by his kindness, and stimu- 
 lating their ambition by his example ; of a gen- 
 tleman, exhibiting in his official intercourse the 
 most accessible and unostentatious manners, 
 neither affected by dignity of station nor ren- 
 dered overbearing by the exercise' of power ; of a 
 moralist, whose pure and incorruptible mind has 
 been a constant terror to dishonesty and fraud." 
 The record of this spotless and amiable life stirs 
 even in us, who never knew _ him, a feeling of 
 personal affection, such as inspired the honeyed 
 utterance of Ogden Hoffman, in moving the res- 
 olutions of the bar of the city of New York, on 
 his death, when he said : " I would love to lin- 
 
James Kent. 237 
 
 ger upon the purity of his character ; the truth- 
 fulness of his mind ; the honesty of his pui-poses ; 
 the child-like simplicity of his manners ; the trust- 
 ing confidence of his friendship ; the gushing ten- 
 derness toward those who had been his compan- 
 ions at the Bar and the sharers of his toils, — a 
 tenderness extended, as I have known and felt, 
 even toward their sons, whose career he would 
 Avatch and guide with a solicitude almost parental. 
 I would love to linger on his devotion to the 
 honor and character of our profession ; upon the 
 joy which every act or decision, that advanced or 
 elevated it, would inspire ; upon his honest and 
 virtuous indignation at every deed that soiled the 
 ermine of the judge or stained the gown of the 
 advocate." Fortunate indeed is our country, and 
 happy should those of our profession be, when 
 the Englishman refers with just pride to his 
 Mansfield and his Eomilly, that we can point to 
 our Story and our Kent, — their equals in genius 
 and virtues ! 
 
WILLIAM PIJ^KI^EY. 
 
 THIS great lawyer was born in 1764, at An- 
 napolis, in the State of Maryland. His father 
 was an Englishman by birth, • and maintained his 
 allegiance to his native country throughout the 
 struggle of the colonies for independence, but 
 young Pinkney did not inherit his father's tory 
 principles, but was always a warm patriot. His 
 early opportunities for education were small, ow- 
 ing to the disturbed state of the coimtry and the 
 imperfect sj^stera of schools at that early day. He 
 adopted the study of medicine, but soon relin- 
 quished it, and in 1783 commenced the study of 
 law in Judge Chace's office. Admitted to the 
 bar, he soon was chosen to the State legislature 
 and some other minor offices, until in 1796 he 
 was appointed, by President Washington, a com- 
 missioner of the United States under the Jay 
 treaty with Great Britain, and in the discharge 
 of the duties of that office he resided in London 
 until 1804. In 1805 he removed to Baltimore, 
 where he had a great law practice, and in this 
 year he was appointed attorney-general of Mary- 
 
William Pinkney. 239 
 
 land. In 1806 he was appointed minister extra^ 
 ordinary to treat with Great Britain concerning 
 the matters of difference wliieh ultimately gave 
 rise to the war in 1812, and continued abroad 
 until 1811. In the latter year he was appointed 
 attorney-general of the United States by Presi- 
 dent Madison. In the war of 1812 he com- 
 manded a battalion of riflemen raised for the de- 
 fense of Baltimore, and took part in the battle of 
 Bladensburg, where he was wounded. The neces- 
 sities of historic truth constrain us to reveal that 
 his wound was a broken arm — a sort of " wound " 
 much more common in that battle, so mortify- 
 ing to American pride, than bullet-holes or sword- 
 thrusts — but the accounts say he behaved bravely. 
 Soon after this he was elected to Congress from 
 Baltimore. In 1816 he was appointed minister 
 plenipotentiary to Russia, and special minister to 
 Naples. The object of the latter mission was to 
 demand indemnification for losses sustained by 
 our merchants by seizure and confiscations under 
 Murat's reign, but in this, as in his British diplo- 
 macy, he was unsuccessful. It was at this time 
 that he tried to induce Judge Story to resign his 
 office and take his practice, which he stated to be 
 worth $21,000 per annum, — equivalent to $100,- 
 000 at the present time. These missions kept 
 him abroad two years. In 1820 he was in the 
 United States Senate. Here he distinguished 
 
240 William Pinkney. 
 
 himself by his advocacy of the Missouri compro- 
 mise. At this period he performed great and 
 brilliant labors at the bar of the Supreme Court 
 of the United States. He died suddenly, in 1822, 
 at the early age of 58. He had married, at the age 
 of 25, a sister of Commodore Rodgers, by whom 
 he had a family of ten children. The very sparse 
 records of Mr. Pinkney's life are sufficient to dis- 
 close a mind of the first' order of legal talent, and 
 a character curiously mixed of great and little. 
 Daring his first residence abroad he associated 
 intimately with some of the most distinguished 
 British jurists, including Sir "William Scott, Lord 
 Stowell, and listened to the debates in Parlia- 
 ment and to Erskine's great efforts at the bar. It 
 was there that he became painfully conscious of 
 his own defects and filled with a determination 
 to supply them. Story narrates Pinkney's own 
 account to him of his having attended a party, at 
 which were present Pitt, Fox, and other great 
 scholars of the time, where the conversation 
 turned upon a passage in Euripides. " The de- 
 bate was carried on for a long time with a great 
 deal of spirit — each side quoting many passages 
 from Euripides and other Greek authors. ' Of 
 course,' said Mr. P., ' I took no part in all this ; 
 and after a while, one of the disputants, noticing 
 that I took no part in the conversation, turned to 
 me, saying, ' why, Mr. Pinkney, you don't share 
 
William Pinkney. 241 
 
 in this talk, — come, sir, what is your opinion of 
 this passaged 'I was obhged,' said Mr. P., 'to 
 confess that I was listening to acquire informa- 
 tion rather than to impart any ; but I resolved 
 from that time to study the classics, and from 
 that time I did.' " It is said that he industriously 
 devoted himself, after his return, to the study of 
 liberal letters, and of elocution, and the speedy 
 result was that he became the recognized leader 
 of the American bar. 
 
 In estimating Pinkney' s forensic powers we 
 must not forget that his fame probably owes 
 much to tradition. We have very few remains 
 by which to judge him, and those certainly do 
 not warrant us in saying ex pecle Herculera. 
 There was much more time in his day for the 
 preparation and delivery of elaborate efforts than 
 at present, and Pinkney was always elaborate and 
 thoroughly prepared. A great lawyer had fewer 
 rivals than now ; thus the only names we hear 
 mentioned in connection with Pinkney's are 
 Wirt, Dexter, Otis, Harper, Martin, and Emmett. 
 Again, Pinkney had the advantage of long and 
 public experience abroad, and association with 
 the greatest models, so that he came home with a 
 prestige derived from his foreign residence which 
 went for something in forming his reputation. 
 But it is evident, after making due allowance for 
 all these circumstances, that he was a very great 
 31 
 
242 "William Pinkney. 
 
 lawyer and a very great orator. We may per- 
 haps be excused from adopting literally the esti- 
 mate of his biographer in the National Portrait 
 Gallery, where we read :• " Endowed with some- 
 thing of the enlarged philosophy, the exuberant 
 metaphor, and the gorgeous rhetoric of Burke, — 
 the chaste and pruned sentiment of Canning, — 
 the lofty and impassioned declamation of the 
 younger Pitt, — the brilliant illustration of Sheri- 
 dan, — the ardent enthusiasm of Fox,-^-and the 
 rapid elegance of Erskine, — the eloquence of Mr. 
 Pinkney was founded upon his own model, and 
 abounded probably with more advantages than 
 that of any of the orators we have mentioned." 
 This sounds rather laughable to us, but we must 
 remember that it was written forty years ago, for 
 the purpose of convincing Americans that their 
 country even then had nothing to fear, on the 
 score of great men, from a comparison with the 
 mother-country which they had forsaken. And 
 yet, turning from this to the judgment of men 
 like Marshall, Story, and Ticknor, we find their 
 commendation only a little less unrestrained. 
 Marshall said he was the greatest legal reasoner 
 he ever knew. In speaking of his famous speech 
 in the case of The Nereide, Ticknor says : " By 
 the force of eloquence, logic, and the legal learn- 
 ing, by the display of naked talent, he made his 
 
William Pinkney. 243 
 
 way over my prejudices and good feelings, to my 
 admiration, and I had almost said, to my respect. 
 He left liis rival far behind him ; he left behind 
 him, it seemed to me at the moment, all the pub- 
 lic speaking I had ever heard. "With more co- 
 gency than Mir. Dexter, he has more vivacity 
 than Mr. Otis ; with Mr. Sullivan's extraordinary 
 fluency, he seldom or never fails to employ pre- 
 cisely the right phrase ; and with an arrangement 
 as logical and luminous as Judge Jackson's, he 
 unites an overflowing imagination. It is, how- 
 ever, in vain to compare him with anybody or 
 everybody whom we have been in the habit of 
 hearing, for he is unlike, and I suspect above 
 them all." Story says : " His language is most 
 elegant, correct, select, and impressive; his de- 
 livery fluent and continuous; his precision the 
 most exact and forcible that you can imagine. He 
 seizes his subject with the comprehension and 
 vigor of a giant, and he breaks f ortlr with a lus- 
 ter and a strength that keep the attention forever 
 on the stretch. I confess that he appears to me 
 a man of consummate talents." Again : " Such 
 is his strong and cogent logic, his elegant and per- 
 spicuous language, his flowing graces and rhe- 
 torical touches, that he enchants, interests, and al- 
 most irresistibly leads away the understanding." 
 " Every time I hear the latter, he rises higher and 
 
24i William Pinkney. 
 
 higher in my estimation. His clear and forcible 
 manner of putting the case before the court, his 
 powerful and commanding eloquence, occasionally 
 illuminated with sparkling lights, but always log- 
 ical and appropriate, and above all, his accurate 
 and discriminating law knowledge which he pours 
 out with wonderful precision — give him in my 
 opinion a great superiority over every other man 
 whom I have ever known. I have seen in a sin- 
 gle man each of these qualities separate, but never 
 before combined in so extraordinary degree." 
 Story, in a letter to his wife, gives the following 
 interesting parallel between Dexter and Pinkney: 
 " I must, however, after all, give the preference 
 to Mr. Pinkney's oratory. He is more vivacious, 
 sparkling, and glowing ; more select and exact in 
 his language, more polished in his style, and more 
 profound and earnest in his juridical learning. 
 Mr. Dexter is calm, collected, and forcible, ap- 
 pealing to the judgment. Mr. Pinkney is ve- 
 hement, rapid, and alternately delights the fancy 
 and seizes on the understanding. He can be as 
 close in his logic as Mr. Dexter when he chooses; 
 but he can step aside at will from the path, and 
 strew flowers of rhetoi'ic around him. Dexter is 
 ]nore uniform, and contents himself with keeping 
 you where you are. Pinknej^' hurries you along 
 with him, and persuades as well as convinces you. 
 
William Pinicney. 245 
 
 Yoii hear Dexter without effort ; he is always dis- 
 tinct and perspicuous, and allows you an oppor- 
 tunity to weigh as you proceed. Pinkney is no 
 less luminous, but he keeps the mind on the 
 stretch, and you must move rapidly or you lose 
 the course of his argument." Of Pinkney's great 
 argument, of three days, in Mcwylmid v. The 
 Bm%k of the United States, involving the right 
 of a State to tax the Bank, Story writes: "I 
 haver in my -whole life heard- a greater speech ; it 
 was worth a journey from Salem to hear it ; his 
 elocution was excessively vehement, but his elo- 
 quence was overwhelming. His language, his 
 style, his figures, his arguments, were most bril- 
 liant and sparkling. He spoke like a great states- 
 man and patriot, and a sound constitutional law- 
 yer. All the cobwebs of sophistry and metaphy- 
 sics about State rights and State sovereignty he 
 brushed away with a mighty besom." Such is 
 the estimate of a most competent critic, one of 
 the judges to whom these prodigious arguments 
 were addressed. Marshall, in the opinion in the 
 Nereide case, gave Pinkney a sly hit as well as 
 an unprecedented compliment, when he said: 
 " With a pencil dipped in the most vivid colors, 
 and guided by the hand of a master, a splendid 
 portrait has been drawn exhibiting this vessel and 
 her freighter as forming a single figure, composed 
 
246 William Pinkney. 
 
 of the most discordant materials of peace and 
 war. So exquisite was the skill of the artist, so 
 dazzhng the garb in which the figure was painted, 
 that it required the exercise of that cold investi- 
 gating faculty which ought always to belong to 
 those who sit on this bench, to discover its only 
 imperfection — its want of resemblance." It is 
 good to inquire in what estimation a man was 
 held by his rivals. So we find that "Wirt gave 
 Pinkney very high- praise, although he said he 
 knew others who hit hai-der, and he himself, when 
 well prepared, never feared to meet him.. Still 
 he thought Pinkney debauched the public taste 
 by a false manner, and accused him of caring as 
 ■little for his colleagues or his adversaries as if 
 they were men of wood. " Give him time," said 
 he — "and he requires not much, — and he will de- 
 liver a speech which any man might be proud to 
 claim. Tou will have good materials, very well 
 put together, and clothed in a costume as magni- 
 ficent as that of Louis XIV ; but you will have a 
 vast quantity of false fire, beside a vehemence of 
 intonation for which you see nothing to account 
 in the character of the thought. His arguments, 
 when I heard him, were such as would have oc- 
 curred to any good mind of the profession. It 
 was his mode of introducing, dressing, and incor- 
 porating them, which contributed their chief 
 value." After Pinkney's death, he wrote : "He 
 
"William Pinkney. 247 
 
 was a great man. On a set occasion, the greatest 
 I think at our bar. He was an excellent lawyer, 
 had very great force of mind, great compass, nice 
 discrimination, strong and accurate judgment, 
 and for copiousness and beauty of diction was un- 
 rivaled." 
 
 In elocution Pinkney seems to have been the- 
 atrical, pretentious and affected, full of strong 
 contrasts. His voice was not good, but rather 
 husky, feeble, and harsh, his manner vehement 
 and impetuous, almost boisterous, his gestures 
 violent, his whole body in continual motion. He 
 had a trick of alternately elevating and depress- 
 ing his voice that became painful. He succeeded 
 in spite of these defects in impressing his contem- 
 poraries with his oratorical powers, thus giving 
 another proof of the correctness of Demosthenes' 
 definition. Of his impatience and rage for the 
 fray Mr. Ticknor gives us an amusing picture : 
 " I was in court all this morning. The session 
 was opened by Judge Story and the Chief Jus- 
 tice, who read elaborate opinions. During .this 
 time Mr. Pinkney was very restless, frequently 
 moved his seat, and when sitting showed, by the 
 convulsive twitches of his faee, how anxious he 
 was to come to the conflict. At last the judges 
 ceased to read, and he sprang into the arena like 
 a lion who had been loosed by his keepers on the 
 gladiator who awaited him." 
 
248 William Pinknet. 
 
 Pinkuey's arrogance, jealousy, and want of 
 magnanimity, were glaring defects in his char- 
 acter. He not only would brook no rival near 
 the throne, but always essayed to bowstring him 
 out of hand. Two of his encounters with oppos- 
 ing counsel — one with Emmett and one with 
 Wirt — are quite famous. All contemporary ac- 
 counts agree that he behaved most indecently in 
 both. In regard to the former, Ticknor, who 
 heard it, — it was in the Nereide case — speaks of 
 the '• somewhat coarse contempt " with which he 
 treated his grand antagonist, and of the " pre- 
 sumption and affectation " of his address. The 
 noble Irishman's response to these ungenerous 
 attacks is historic. " The gentleman," said he, 
 " yesterday announced to the court his purpose 
 to show that I was mistaken in every statement 
 of facts, and every conclusion of law which I had 
 laid before it. Of his success to-day the court 
 alone have a right to judge ; but I must be per- 
 mitted to say, that in my estimation, the manner 
 of announcing his threat of yesterday, and of at- 
 tempting to fulfill it to-day, was not very com-te- 
 ous to a stranger, an equal, and one who is so truly 
 incliaed to honor his talents and learning. It is 
 a manner which I am persuaded he did not learn 
 in the polite circles of Europe, to which he refer- 
 red, and which I sincerely wish he had forgotten 
 there, wherever he may have learned it." Pink- 
 
William Pinknet. 249 
 
 ney's " cold and inefficient explanation," Ticknor 
 says, " impelled me to feel almost sorry that I 
 had been obliged so much to admire his high tal- 
 ents and success." So discourteous was he toward 
 Wirt, that a duel was with some difficulty averted 
 and his friend and admirer. Story, was con- 
 strained to write : " I am quite persuaded, with- 
 out having heard a word of the facts, that our 
 friend, Mr. Pinkney, is wrong in the recent disa- 
 greement with Mr. Wirt. The latter is a most 
 worthy, good-humored, spirited gentleman, of 
 eminent talents and fine accomplishments. Mr. 
 Pinkney should not undervalue him, nor seek to 
 obtain a temporary glory by robbing him of a 
 single laurel. This world is wide enough for all 
 the learning and genius, public virtue and ambi- 
 tion, of all the wise and good, and it is a great 
 mistake for a great man to indulge in an arrogant 
 pride or a morbid jealousy in respect to his com- 
 petitors or rivals. I have the highest opinion of 
 Mr. Pinkney, who is truly princeps inter prin- 
 cipes. We must talk with him on this subject, 
 and make him feel he has much to lose, and 
 nothing to gain, by the course he sometimes pur- 
 sues." Nor do we discover, from the testimony 
 of his contemporaries, that he was much more 
 agreeable or courteous out of court, or that he dis- 
 played many of the graces of the accomplished 
 scholar and gentleman. Story confesses that he 
 32 
 
250 William Pinknbt. 
 
 seemed distant, reserved and haughty, and that 
 when he conversed with him, he found him slug- 
 gish. " His first appearance is not prepossessing,' ' 
 he continues. " He has the air of a man of fash- 
 ion, of hauteur, of superiority, and something, I 
 hardly know what to caU it, of abrupt and crusty 
 precision. On acquaintance, this wears away, 
 and you find him a very pleasant, interesting gen- 
 tleman, full of anecdote and general remarks." 
 That Pinkney did not greatly command the love 
 of his fellow-men is evident from Story's remarks, 
 in a letter to his wife, on the indifference with 
 which the intelligence of his sudden and fatal ill- 
 ness was received — the " calamity made but a 
 momentary impression," he says, " and the next 
 day it was as little thought of except in the circle 
 of particular friends, as if it were an event of a 
 century ago." 
 
 In person Pinkney was a striking and some- 
 what amusing figm-e. He had a tendency to 
 corpulence, which greatly annoyed him, and 
 which he endeavored to restrain by wearing cor- 
 sets. Possibly he had a professional reason for 
 this habit ; — Shaving so many cases to argue about 
 vessels, he may have thought it appropriate to go 
 to court in stays. If Mrs. Gore (wife of one of 
 the commissioners on the Jay treaty) is to be 
 credited, he also used cosmetics to soften and 
 smooth the rugosities of his skin ! This may be 
 
William Pinkney. 251 
 
 scandal ; we know the ladies are fond of invent- 
 ing such stories about one another. He always 
 dressed in a style which would have been pro- 
 nounced foppish in a much younger man. His 
 appearance is thus described by Story : " The 
 personal appearance of Mr. P. was as polished as 
 if he had been taken right from the drawer ; his 
 coat of the finest blue was nicely brushed ; his 
 boots shone with the highest polish ; his waistcoat 
 of perfect whiteness glittered with gold buttons ; 
 he played in his hand with a light cane ; in short, 
 he seemed perfectly satisfied with himself, and 
 walked through the court-house with an air of 
 ease and abandon, arising from perfect self-con- 
 fidence." Ticknor says, after describing his 
 dandyism, " you must imagine such a man stand- 
 ing before the gravest tribunal in the land, and 
 engaged in causes of the deepest moment ; but 
 still apparently thinking how he can declaim like 
 a practiced rhetorician in the London Cockpit, 
 which he used to frequent." His portrait in the 
 National Portrait Gallery, displaying a coun- 
 tenance by no means intellectual, accords with 
 these accounts of his costume, and represents sev- 
 eral curls on his forehead which could scarcely 
 have been the work of blind chance. He was a 
 great favorite among • the ladies, who always 
 crowded the court-room to hear him. On his 
 first return from Europe there was intense curios- 
 
252 William Pinkney. 
 
 it}' to hear him, and a numerous mixed assembly 
 gathered in the Supreme Court room to listen to 
 his first argument. The cause was an unfortu- 
 nate one for the display of rhetoric or sentiment 
 — a case of insurance upon a cargo of asses. Out 
 of consideration for the sensibilities of his au- 
 dience, Mr. Pinkney never once expressed the 
 name of those poor animals, but had recourse to 
 much inconvenient and mysterious periphrasis. 
 Story says : " He attempted to introduce a little 
 finery to please the ladies ; though in fact the case 
 did not well admit of it. He foamed at the 
 mouth and tore things all to tatters. The argu- 
 ment was very good, as an argument ; but he evi- 
 dently overdid it. But then what could he do ? 
 There was the audience ; they had come with ex- 
 pectation of hearing a 'Specimen of fine speaking, 
 — be the subject what it might — and they must 
 be gratified. He did not, on the whole, sustain 
 himself on that occasion." His comparative fail- 
 ure caused him great mortification, and he re- 
 deemed his repiitation when he had a more for- 
 tunate subject of discourse. 
 
 His affectation kept pace with his vanity. Al- 
 though his arguments are always labored, and he 
 would never speak without the most exhaustive 
 preparation, yet he desired to have it thought 
 that all was ex tempore. If there was a great 
 party or public meeting near, he would be sure 
 
William Pinkney. 253 
 
 to attend it, and then go home and study all 
 night in his cause for the next morning. In this 
 he imitated Loughborough. The passages which 
 he thus prepared, sometimes twenty minutes or 
 half an hour in length, were so nicely fitted in 
 his argument that the joints could not be discov- 
 ered, and it was these passages which produced 
 the greatest effect, especially upon the general 
 audience. He would also quote the language of 
 an authority, apparently from early memory of 
 it, saying he was not quite certain of the exact 
 language, when he had probably studied it out 
 for the very occasion. By this course he some- 
 times seduced the opposite counsel into disputing 
 his accuracy, and then produced a great effect by 
 sending for the book and reading the passage, 
 first telling the court the page and the very part 
 of the page. Of course these tricks were found 
 out after a while, but the detection did him no 
 harm, as the affectation of learning and memory 
 was superfluous, where so much was genuine. 
 
 Piftkney's vanity was at length the cause of his 
 death. He was arguing a cause before the Su- 
 preme Court, when Story, perceiving that he 
 could hardly proceed on account of hoarseness, 
 sent the clerk to him with the message that he 
 had better cease speaking— that the court would 
 adjourn for him. To this he replied : " Tell 
 Judge Story that I am much obliged to him for 
 
254 William Pinkney. 
 
 the kind suggestion, but that I must go on ; I 
 have a reputation to maintain; I can't sacrifice 
 that." He proceeded, but the fatigue and ex- 
 haustion sent him to his bed, from which he 
 never rose. 
 
 It is not an agreeable task to depict a character 
 in which so much of the mean and petty mingled 
 with the sublime. Although several biographies 
 of Pinkney have been written, yet they are ut- 
 terly lacking in all that biographies should con- 
 tain ; — no domestic traits, no anecdotes, no ex- 
 amples of wit or good humor. Perhaps the fault 
 was in the subject. At all events we find little 
 but dry dates, and fragments from speeches which 
 give no adequate or favorable idea of the man's 
 powers. We are told, it is true, that Pinkney 
 was a good shot and fond of hunting, expert at 
 billiards and whist, fond of nature, that he 
 sketched capitally for his children, was much 
 given to novel-reading, hospitable, profuse of 
 money, and a great student of prosody and dic- 
 tionaries. Our chief sources of information are 
 the letter-writers, but fortunately in this instance 
 they are such men that their representations are 
 entitled to implicit belief. The reader would 
 hare more patience with this great man's foibles 
 if they had been accompanied, as in Erskine, by 
 an unfailing amiability and magnanimity. And 
 yet we must bow to his greatness, so shining as 
 
William Pinkney. 255 
 
 to make ub almost forget his weaknesses. One 
 of his greatest and most judicious admirers said, 
 on returning from his funeral : " It is impossible 
 to contemplate the death of such a man without 
 the most painful emotions. His genius and elo- 
 quence were so lofty, I might alinost say, so un- 
 rivaled, his learning so extensive, his ambition 
 so elevated, his political and constitutional prin- 
 ciples so truly just and pure, his weight in the 
 public councils so decisive, his character at the 
 Bar so peerless and commanding, that there 
 seems now left a dismal and perplexing vacancy. 
 His foibles and faults were so trifling or excusa- 
 ble, in comparison with his greatness, that they 
 are at once forgotten and forgiven with his de- 
 , posit in the grave. His great talents are now uni- 
 versally acknowledged. As Mason has beauti- 
 fully said, in his Elegy on Lady Coventry, 
 ' This envy owns, since now those charms are fled. ' " 
 
WILLIAM WIET. 
 
 WIET was bom in 1772, at Bladensburg, 
 Maryland. He received the rudiijients of 
 his education at Georgetown and New Port 
 Church, but his chief instruction was at the school 
 of the Keverend James Hunt, in Montgomery- 
 county, where he continued from the age of 
 eleven till his fifteenth year. Here he received 
 a good academic education, and had also the ad- 
 vantage of an excellent miscellaneous library,' 
 which formed and fixed his taste for elegant let- 
 ters. As Montgomery Court-house was near, the 
 students frequently resorted thither, and in imi- 
 tation of the legal proceedings which they there 
 witnessed, they formed a court of their own. 
 For this Wirt drafted the constitution and laws, 
 which he reported with a letter of apology pre- 
 fixed. On the breaking up of the school in 
 1787, he found a home for a year and a-half 
 as a teacher in the family of Benjamin Edwards, 
 father of one of his school-mates, Ninian Ed- 
 wards, once Governor of Illinois, who had been 
 
William Wiet. 257 
 
 led to a knowledge of young Wirt's merits by a 
 perusal of his youthful essay as a Lycurgus. 
 He studied law at Montgomery, and Leesburg, 
 Virginia, and being admitted to the bar in 1793, 
 commenced practice at Culpepper Court-house, 
 in the latter State. In 1795 he married the 
 daughter of Dr. Gilmer, who resided near Char- 
 lottesville, and, in the family of his father-in-law, 
 he had the advantage of resort to a good 
 library, and the society of Jefferson, Madison 
 and Monroe, who were frequent guests at Dr. 
 Gilmer's. His wife dying in 1799, he removed 
 to Eichmond, where he held the clerkship of 
 the house of delegates for three sessions. In 
 1802 he was appointed chancellor of the east- 
 ern chancery district of Virginia. In the same 
 year he married a daughter of Col. Gamble, of 
 Kichmond. In 180i he removed to ISTorfolk, 
 where he practiced his profession until 1806, 
 when he removed to Richmond, and there resided 
 for eleven years. In 1808 he was a delegate to 
 the State assembly, his only legislative service. 
 During this residence he was appointed, by Pres- 
 ident Madison, United States Attorney- General, 
 and held this office through three successive pres- 
 idential terms. During this period he resided at 
 Washington, and at its expiration he removed to 
 Baltimore. In 1830 he received from the anti- 
 Masonic party the nomination for the Presidency 
 33 
 
25S WiLLIAJW WlET- 
 
 which resulted in his receiving seven electoral 
 votes — those of Yerniont— the smallest number 
 ever cast for any candidate for this office. He 
 continued to reside at Baltimore, in a lucrative 
 and distinguished law practice, until his death 
 in 1834. 
 
 Wirt was the last and the most distinguished 
 example of the old school of public men, who 
 trained themselves after the antique models, and 
 illustrated that classic culture, with an engrossing 
 admiration for which our country in its younger 
 days was filled. From his adoption of the legal 
 ■profession, Wirt bent his energies to the acquire- 
 ment of a Ciceronian polish of elocution, and an 
 Addisonian purity of diction. In a letter to a 
 young law-student, in 1813, he says : " The cul- 
 tivation of eloquence should go hand in hand with 
 your legal studies. I would commit to memory 
 and recite, a la mode de Garrich, the finest parts 
 of Shakespeare, to tune the voice by cultivating all 
 the varieties of its melody, to give the muscles of 
 the face all their motion and expression, and to 
 acquire an habitual use and gracefulness of ges- 
 ture and command of the stronger passions of the 
 soul. I would recite my own compositions, and 
 compose them for recitation ; I would address my 
 own recitations to frees and stones, and falling 
 streams, if I could' not get a living audience, and 
 blush not even if I were caught at it." In this 
 
William Wiet. 259 
 
 recommendation we find a probable reference to 
 his own practice. His admiration of the classic 
 models is thus expressed in a letter written in 
 1810 : " Can you conceive any pleasure superior 
 to the enjoyment of hearing a debate, on a great 
 public measure, conducted by such men as Cicero, 
 Cato, Cffisar and their compeers; that pleasure 
 which Sallust so often tasted, and of which he has 
 left us such brilliant specimens ? What stores of 
 knowledge had those men ; what funds of argu- 
 ment, illustration, and ornament ; what powers 
 of persuasion, what force of reason, whafr striking 
 and impressive action, what articulate and melo- 
 dious elocution ! — yet each speaker marked with 
 a character of his own, which distinguished him 
 from all the world, — the sportive amenity of Cic- 
 ero, the god-like dignity of Cato. How inter- 
 esting must it have been to listen to Julius Csesar, 
 and watch the sly operations of that ambition 
 which he must have curbed with so much diffi- 
 culty ! * * * Without any extraordinary preju- 
 dice in favor of antiquity, I apprehend that we 
 have never yet, by any of our Houses, matched a 
 Roman Senate as a whole." These ideas are like 
 the vision and memory of old men, who from 
 failure of their physical and mental powers, while 
 they can see objects afar ofE and recollect trans- 
 actions of many years standing, cannot perceive 
 things close at hand, nor remember the events of 
 
260 William Wiet. 
 
 yesterday. In his admiration of the traditional 
 glory of a few Romans, Wirt forgot Chatham, 
 Mansfield, Burke, Pitt, Fox, Sheridan and Ers- 
 kine, of the mother country, and Jefferson, the 
 Adamses, Otis, Henry, Hamilton and Pinkney, 
 of his own ; and while he dwelt on Csesar, he for- 
 got l^apoleon and Washington. He lingered so 
 long in the far past that he was just arriving at 
 the present when he died. It would seem that 
 his first reading of Burke was in the year before 
 his death, and his works were a revelation to him 
 and filled him with admiration. But the result 
 of Wirt's devotion to his models was a glowing, 
 gracefu.1 and polished diction, adorned with dec- 
 orations as lavish as a Corinthian column, but re- 
 lieved from monotony by the excursions of a 
 daring fancy, felicitous quotations, and scintilla- 
 tions of a brilliant wit ; with elocution which for 
 persuasiveness, grace, variety and elegance has 
 never been equaled in our country unless by 
 Everett, and which, although lacking Pinkney's 
 vehemence and enthusiasm, and Webster's im- 
 pressiveness and majesty, preserved a lofty and 
 level fiight. Wirt was the last of the classicists. 
 With him his school went out, and that of Web- 
 ster came in. He himself saw the change in the 
 public taste, and advised the cultivation of force 
 and power rather than the graces of oratory. He 
 said of himself that he commenced building at 
 
William Wiet. 261 
 
 the top instead of the base. In letters written a 
 few months before his death he says : " The fash- 
 ion of the times is much changed since Thomp- 
 son wrote liis Seasons, and Harvey his Medita- 
 tions. It will no longer do to fill the ear only 
 with pleasant sounds,or the fancy with fine images. 
 The mind, the understanding must be filled with 
 solid thr ought. The age pf ornament is over, 
 that of utility has succeeded. The pugnoe quam 
 pormpcB aptius is the order of the day, and men 
 fight now with clenched fist, not with the open 
 hand — with logic and not with rhetoric." And 
 again : " I can only tell you that the florid and 
 Asiatic style is not the taste of the age. The 
 strong, and even the rugged and abrupt, are far 
 more successful. Bold propositions, boldly and 
 briefly expressed, — pithy sentences — nervous com- 
 mon sense — strong phrases — the felicite audaai 
 both in language and manner — well compacted 
 periods — sudden and strong masses of light — apt 
 adage in English or Latin — a keen sarcasm — a 
 merciless personality — a mortal thrust — these are 
 the beauties and deformities that now make a 
 speg,ker the most interesting. A gentleman and 
 a Christian will conform to the reigning taste so 
 far only as his principles and habits of decorum 
 will permit. The florid and Asiatic was never a 
 good taste either for an European or an Ameri- 
 can taste. We require that a man should speak 
 
262 William Wirt. 
 
 to the pui-pose and come to the point ; that he 
 should instruct and convince." The style of ora- 
 tory thus described was certainly very different 
 from the elaborate and ornate oratory with which 
 the great Attorney-General for so many years 
 fascinated the courts, and which still charms the 
 reader even in the hackneyed passages which 
 f onn part of the staple of our school-readers. It 
 must be conceded in favor of Wirt's style that it 
 is good, to read, which is more than can be said 
 of that of any other American orator of the past 
 except Webster and Everett. The immortal 
 things are those which have been produced with 
 labor ; the vigorous and audacious bursts which 
 overwhelm an audience at the moment, and are 
 the birth of the moment, die almost as soon as 
 born. Pinkney tried to write out several of his 
 greatest speeches, but gave up the attempt, prob- 
 ably discouraged by the feebleness of the written 
 thought. On the other hand, Wirt, whom he al- 
 ways afiected to despise, will live in a f eW pas- 
 sages as long as the English language is read. It 
 has become the fashion to smUe at the passage com- 
 mencing : " Who is Blennerhasset ? " but do we 
 cease to read it ? It is of a fashion that has passed 
 away, just as the fashion of the Spectator and of 
 Irving, of Gray and Goldsmith, of Hume and 
 Prescott, has passed away, but the charm lingers ; 
 they are the perfection of their kind, and Wirt 
 
William Wiet. 263 
 
 in his way is not surpassed by the remains of any 
 forensic oratory that has come down to us. It 
 would do the moderns no harm to engraft a few 
 of his graces on their arid and barren style. 
 
 It has grown the fashion to underrate Wirt's 
 intellectual strength. Doubtless, we miss in him 
 the athletic vigor of Webster and Pinkney, but 
 we find great ingenuity, acuteness, wit and learn- 
 ing. A diamond is none the less hard for being 
 cut and polished. Pinkney, who was associated 
 with him in the Dartmouth College case, said he 
 was not strong enough for it — "had not back 
 enough ; " but Webster, who was opposed to 
 him, pronounced his argument, albeit rather de- 
 clamatory, an exhaustive and able presentation. 
 The best answer to those who regard Wirt as a 
 weak man, is the fact that he sustained himself 
 with great credit, in the attorney-generalship, for 
 twelve years, under three administrations, against 
 the ablest lawyers of the United States. This 
 fact demonstrates that he was something above a 
 mere declaimer. Webster says, he was a " very 
 considerable lawyer," and that is a good deal for 
 Webster to say. Story ranks him with about a 
 score of others whom he estimates the "ablest 
 orators, of America," and elsewhere he describes 
 him as possessing " eminent talents and fine ac- 
 complishments," and as "among the ablest and 
 'most eloquent of the bar of the Supreme Court." 
 
264 William Wiet. 
 
 Probably if Pinkney's arguments were written 
 out, they would seem almost as' diffuse and arti- 
 ficial as "Wirt's ; but Pinkney bas an advantage 
 in baving left nothing but his bones, which- are 
 those of a giant. The only arguments which 
 have come down to us adequately reported, and 
 in comparison with which Wirt's suffer in point 
 of mental strength, are those of Erskine and 
 Webster. A peculiar excellence of Wirt was his 
 power of anticipating and taking the sting out of 
 his adversary's arguments, a power which be 
 often employed with wonderful effect. Wirt was 
 connected with many of the most important and 
 celebrated cases that have ever arisen in this coun- 
 try. The earliest of these, and the most famous, 
 was the trial of Aaron Burr, for treason, at Rich- 
 mond, in 1807, wbenWirt was thirty-five years old. 
 This trial occupies a similar position in American 
 history to that of Warren Hastings, in English. 
 The great criminal himself was one of the most 
 brilliant and audacious men whom our country 
 ever produced. Earning military honor in his 
 youth at the siege of Quebec, under the lamented 
 Montgomery, subsequently becoming a most pow- 
 erful and acute lawyer, and dividing with Ham- 
 ilton the leadership of the New York bar, he 
 eventually rose to the Vice-Presidency of the 
 United States, and barely missed the Presidency. 
 
"William Wiet. 265 
 
 in competition with Jefferson. His ambitious 
 career, wliich was a constant defiance of public 
 morals and female virtue, was brought to a close 
 by the death of his political and professional 
 rival, Hamilton, at the mouth of his pistol, in a 
 duel, which party sentiment denounced as little 
 better than a murder. His ambition at length 
 led him into a conspiracy against the liberty of 
 his country, as his enemies believed, but which 
 he declared to be nothing more than a plan for a 
 new conquest of Mexico. In this conspiracy he 
 involved Blennerhasset, an Irish patriot and exile, 
 whose wife fell a victim to Burr's fascinations. 
 His trial for the treasonable offense came on be- 
 fore Chief Justice Marshall, the greatest judicial 
 figure in our history. Burr's counsel were Luther 
 Martin, John Wickham and Benjamin Botts ; 
 but he was his own most effective counsel, and 
 bore himself with the same self-possession, acute- 
 ness, and vigor which he would have displayed 
 in a cause to which he was personally indifferent. 
 Wirt and Hay were the leading counsel for the 
 government. The foreman of the jury was Jolin 
 Eandolph. Among the witnesses was Andrew 
 Jackson. In the bar as spectators sat two young 
 lawyers, who afterward abandoned the profession 
 of law, the one for that of arms, the other for 
 that of letters, and became respectively the 
 most brilliant soldier and the most celebrated 
 34 
 
266 William Wiet. 
 
 author in this country during the first half 
 of this century — "Winlield Scott and "Washing- 
 ton Irving. The latter indeed appeared at 
 Eichmond on the retainer of a friend of Burr, 
 who thought that the young lawyer's pen 
 might possibly j)rove serviceable to the ac- 
 cused. The talent and beauty of Richmond 
 crowded the benches. (The Richmond ladies, if 
 wef may credit Irving, obedient to the scriptural 
 injunction, "love your enemies," were on Burr's 
 side during the trial, for he says, " not a lady, I 
 believe, in Hichmond, whatever may be her hus- 
 band's sentiments on the subject, who would not 
 rejoice at seeing Col. Burr at liberty.") Such was 
 the audience to which Wirt addressed the speech 
 that rendered him famous, — a speech compoun- 
 ded of a keen logic which commanded the respect 
 of the great Chief Justice, and a pathos which 
 melted the Richmond beauties into tears only less 
 pitiable than those of Blennerhasset's wife, which 
 mingled at midnight with. the wintry Ohio. The 
 result of the trial was somewhat farcical, the 
 court holding that there was no sufficient proof 
 of any overt act, and Burr escaped to die the 
 lingering death of public hatred and outlawry. 
 Another great cause in which Wirt won renown 
 was Oibhons v. Ogden, argued in the United 
 States Supreme Court in 1824. This cause in- 
 volved the constitutionality of certain laws of the 
 
William Wmx. 267 
 
 State of New York, which conferred upon Ful- 
 ton and Livingston the exclusive right to navi- 
 gate the waters of that State with steamboats. 
 This monopoly had brought the States of !New 
 York, Connecticut and New Jersey to the verge 
 of civil war. The courts of New York, with a 
 devotion to " State rights " almost as fervid as 
 that of the Southern States half a century later, 
 had maintained the constitutionality of the enact- 
 ments. Gibbons appealed, and was represented 
 by Wirt and Webster, while Oakley and Emmett 
 • championed the other side. This was a legal con- 
 test which has rarely been equaled for its dis- 
 play of learning and genius. The result was fa- 
 vorable to the appellant. In this case Wirt dis- 
 played one of the most shining examples of his 
 classical learning, and his aptitude at retort. Em- 
 mett in his peroration, predicting the glories that 
 would result to the State of New York from 
 Fulton's wonderful invention, exclaimed : " She 
 may fondly calculate on their speedy extension 
 in every direction, and through every region, 
 from Archangel to Calcutta ; and justly arrogat- 
 ing to herself the labors of the man she cherished 
 and conscious of the value of her own good works, 
 she may exultingly ask, 
 
 ' QusB regio in terris, nostri non plena laboris ? ' " 
 Wirt turned this quotatio;a very happily against' 
 
268 William Wiet. 
 
 his antagonist, by sliowing that it was not an ex- 
 pression of the triumph, hut of the sorrow, of 
 ^neas, at beholding at Carthage a painting rep- 
 resenting the destruction of Troy ; and then pre- 
 dicting the wars and woe that would result from 
 l^ew York's perseverance in this monopoly, he 
 exclaimed : '' Then, sir, when New York shall 
 look upon this scene of ruin, if she have the gen- 
 erous feelings which I believe 'her to have, it will 
 not be with her head aloft, in the pride of con- 
 scious triumph, ' her rapt soul sitting ui her eyes.' 
 No, sir, no ! Dejected with shame and confu- 
 sion, drooping under the weight of her sorrow, 
 with a voice suffocated with despair, well may 
 she exclaim, — 
 
 ' quis jam locus 
 
 Quae regio in terris, nostri nou plena laboris ? ' " 
 
 Mr. Emmett did the best he could to destroy the 
 force of Wirt's reply, by interpolating in his 
 speech when he came to report it, after " her own 
 good works," the words, "she may turn the 
 mom-nful exclamation of ^neas into an expres- 
 sion of triumph," — a device worthy of a modern 
 Congressman. Wirt figured prominently in the 
 Dartmouth College case, as we have seen. He 
 also participated in the case of McGuUock v. 
 Maryland, involving the right of the State to tax 
 the United States Bank, in which Pinkney made 
 his greatest effort. The case of the Cherokee 
 
"William Wiet. 269 
 
 Indians, in the Supreme Court, in 1831, was one 
 of tlie finest displays of his powers, and enlisted 
 his finest sympathies in favor of an oppressed 
 race. The proceeding was a motion for an in- 
 junction restraining the State of Georgia from 
 executing certain harsh and offensive laws in the 
 territory of the Cherokees. Missionaries among 
 that tribe had even been sentenced to imprison- 
 ment in Georgia for the offense of remaining in 
 that territory without taking the oath of allegian ce 
 to the State of Georgia, and a capital sentence 
 was executed on one of the Indians, pending an 
 appeal to the Supreme Court. The jurisdiction 
 of the court on this motion was disputed on the 
 ground that the Cherokees were not a foreign 
 State, within the meaning of the federal consti- 
 tution, and this view was reluctantly approved. 
 Story says of this case : " Both of the speeches 
 were very able, and Mr. "Wirt's, in particular, was 
 uncommonly eloquent, forcible and finished." Per- 
 haps the best example of Wirt's solid and argu- 
 mentative style is his speech on the impeachment 
 trial of Judge Peck. He made a great impres- 
 sion in Boston, in 1829, on the trial of the action 
 of the administrators of Tuthill Hubbart against 
 Peter C. Brooks. This was an action to correct 
 alleged errors in an account twenty-one years 
 old. "Wirt was opposed by Webster, and was 
 defeated. Of this case Everett says : " Never 
 
270 William Wiet. 
 
 has a more magnificent forensic display been 
 witnessed in onr courts than in the arguments 
 of the illustrious rivals on this occasion. The 
 most arid details of account and abstrusest doc- 
 trines of equity were clothed by them with liv- 
 ing interest." 
 
 It is apparent from a study of "Wirt's life that 
 the law, although he devoted himself to it with 
 an assiduity and laboriousness rarely paralleled, 
 was not his idol. Politics he abhorred, and his 
 ignorance of political afEairs was attested by his 
 acceptance of the anti-Masonic nomination for the ■ 
 Presidency, — an unfortunate step into \vhich he 
 was led by a momentary weakness. He long 
 hoped to retire from the profession at the age of 
 forty or forty-five. ISTothing but stern necessity 
 and res aiogustm domi deterred him from turning, 
 like Irving, from law to literature, and it is evi- 
 dent that an exchisive devotion to the latter would 
 have brought success. Indeed he attained a tem- 
 porary and rtot undeserved reputation as an au- 
 thor. Two series of papers originally published 
 by him in the Virginia Argus and the Eichmond 
 Enqui/rer respectively, the one in 1803, the other 
 in 1811, and entitled " Letters of a British Spy" 
 and " The Old Batchelor," gained great popular- 
 ity in a collected form. The former circulated 
 extensively in every part of the country. It was 
 written in imitation of Goldsmith's " Citizen of 
 
William Wiet. 271 
 
 the World," and professed to be the observations 
 of a Briton upon the manners and customs of 
 Virginians, and upon the physical characteristics 
 of the State, with descriptive sketches of some 
 of her most distinguished public men, and elabo- 
 rate dissertations upon oratory. Indeed the work 
 may be regarded as the American De Oratore. 
 Its style is too redundant, and the topics are 
 rather common-place. The portraits, however, 
 are clever, and at the time gave some offense. 
 The letter on " The Blind Preacher," is one of 
 the compositions which have for many years been 
 treasured in school readers, and is a charming, 
 although -rather highly colored picture. "The 
 Old Batchelor " is a series of didactic and ethical 
 essays, somewhat after the model of the Spectator. 
 In lihis work Wirt was assisted by several of his 
 friends, but his essays are decidedly the most at- 
 tractive, and are his best literary efforts. His 
 life of Patrick Henry, his most pretentious work, 
 is an ambitions failure. The incidents of Henry's 
 life were so few, and. his fame was so purely tra- 
 ditional, that Wirt's work was very fine-spun, 
 overloaded with rhetoric, and tedious after the 
 first hundred pages. Jefferson characterized it 
 as a continual struggle between panegyric and 
 history. The author absurdly attributed to Henry 
 the honor of inspiring the Revolution. Wirt was 
 also guilty of a comedy, but with extenuating 
 
272 William Wiet. 
 
 circumstances — he never published it. It is also 
 strongly in his favor, that, with all his predilec- 
 tions, he never " dropped into poetry." The iiLost 
 celebrated of his occasional addresses was that on 
 the death of Adams and Jefferson, which is 
 worthy of preservation with Webster's. 
 
 Wirt possessed a person of manly and engag- 
 ing beauty. He was above six feet in height 
 and portly, and his face, massive and command- 
 ing in outline, was amiable and sparkling in ex- 
 pression. His temperament was buoyant, gay, 
 sportive, and enthusiastic ; he had a most affec- 
 tionate and loyal heart, and a deeply religious and 
 reflective spirit. In his letters to his few intimate 
 friends, he unbosoms himself with a most charm- 
 ing abandon and rollicking love of fun. These 
 letters sparkle with wit, puns, " dog-Latin," clas- 
 sical allusions, and the profoundest good sense. 
 They also disclose his artless vanity, which was 
 so harmless and generally so well-founded as 
 scarcely to deserve that appellation, and which 
 did not prevent his seeing_ and speaking unre- 
 servedly of his own faults. His domestic life was 
 pure and beautiful almost beyond parallel. In 
 his earlier days, he was led, by his gaiety and 
 fondness for society, into occasional excess in 
 strong drink. The extent of this indulgence we 
 cannot well determine. A very romantic story 
 was once rife of his reformation through the in- 
 
William Wiet. 273 
 
 fluence of the lovely Miss Gamble, who became 
 his second wife, but Mr. Kennedy, his biographer, 
 does not repeat it, and avows his belief that all ac- 
 cusations of habitual excess are ill-founded. At 
 all events Wirt became the most irreproachable of 
 men, the most admirable of husbands and fathers, 
 and was liberally blest with twelve children. His 
 latter days were clouded by the death of his young- 
 est daughter, a child of extraordinary gifts, attrac- 
 tions, and promise,who was her father's companion 
 and solace in his home and in his study. We read 
 of this event and its effect on Wirt, with the same 
 sympathy with which we peruse the story of 
 Eomilly's unhappy end and listen to Eldon's as- 
 piration to be buried by the side of his wife Bessie. 
 Wirt himself tells us the story of his aiiiiction 
 and liis resignation in his letters to his wife when 
 he says : " Dearest heart, let us both look up to 
 that heaven where our angel is, and frofn which 
 she is still permitted to observe us with inter- 
 est, — -up to that Heaven where our Saviour 
 dwells, and from which he is showing us the 
 attractive face of our blessed and happy child, 
 and bidding us prepare to come to her, since she 
 can no more visibly come to us." " I have no 
 taste now for worldly business. I go to it reluc- 
 tantly. I would keep company only with my 
 Saviour and his holy book. I dread the world — 
 the strife and contention and emulation of the 
 35 
 
274 William Wiet. 
 
 bar ; yet I will do my duty — • this is part of my 
 religion." To another he writes : " The blow 
 struck on my heart, two winters ago, I shall never 
 get over ; nor can I say I wish to get over it, It 
 has thrown a cloud on my life that I should deem 
 it sacrilege to dispel if I could ; for I look upon 
 it very much like that cloud which rested, of old, 
 on the tabernacle of Israel, to attest the presence 
 of God. It brings me into the immediate society 
 of Heaven whenever I cast my eyes upon it. It 
 is therefore salutary to my soul, and it does not 
 afflict me as it did." But the blow was never- 
 theless fatal, and he survived it but three yearsj 
 Pinkney fell a sacrifice to his vanity ; Wirt re- 
 ceived the deadly wound in his affections. His 
 death created a general sorrow, and at his grave 
 stood an assemblage of great men, such as rarely 
 is gathered on any occasion, — Adams, Jackson, 
 Calhoun, Van Buren, Marshall, Story, Clay, Web- 
 ster, Southard, Taney, Binney, Sergeant, Wood- 
 bury, Everett, Cass, Scott, Macomb, Rogers, 
 Chauncey, and others, — all mourners at the flight 
 of such brilliant genius and such spotless purity. 
 
EIKER. 
 
 RICHAED EIKER, for twenty years re- 
 corder of the city of New York, was born 
 in 1774, in ]S"ewtown, Long Island. He was de- 
 scended from German ancestors, who had set- 
 tled there about 1632. His father, Samuel Ei- 
 ker, fought in the Eevolution. His brother, An- 
 drew, commanded the " Saratoga "and the " York- 
 town," in the last war. One of his sisters mar- 
 ried Dr. Macnevin, and another married Thomas 
 Addis Emmet. Mr. Edwards, in his amusing 
 " Pleasantries about Courts and Lawyers," nar- 
 rates an interesting anecdote of the Eecorder's 
 babyhood. After the battle of Long Island, some 
 British troops were quartered on the family of 
 his maternal grandfather, Mr. Lawrence. " Mr. 
 Eiker, then a boy of about three years of age, 
 was playing on the grass not far from where an 
 oflBcer was seated, and his mother watching him 
 from a window. The officer had a small omar 
 mented dirk in his belt. It attracted the atten- 
 tion of the child, and suddenly drawing it from 
 the sheath, he plunged it toward the officer, say- 
 
276 RiKEE. 
 
 ing, ' This is the way my father sticks the regu- 
 lars.' The officer, pleased with the spirit of the 
 child, playfully caught him in his arms, and said : 
 " If I meet your father in battle, I will spare him 
 for your sake, my brave little fellow." Mr. E.iker 
 was educated to the law, was district-attorney in 
 
 1802, deputy attorney-general of the State in 
 
 1803, and in 1815 was .elected recorder, which of- 
 fice he held, with the exception of two years, un- 
 til 1839. He died in 1842. The office of recor- 
 der is a highly honorable one, and has been held 
 by such men as Robert K. Livingston, Samuel 
 Jones, James Kent, Ogden HofEman, John T. 
 Hoffman, and John K. Hackett. 
 
 Mr. Riker certainly was not a great man, but 
 he had fair talents, courtly manners of the old 
 school, a handsome person, and a kindness of 
 heart almost excessive ; while his integrity and 
 great experience rendered him an excellent judge. 
 A respectable magistrate, a shrewd politician, a 
 good man, and a useful citizen, still his reputa- 
 tion would not have been preserved from the 
 consuming rust of time, if he had not had a poet 
 for a friend, who made him the subject of a poem. 
 This is an advantage which very few lawyers 
 have possessed, and although some of them have 
 endeavored to supply the deficiency by writing 
 verses for themselves, yet the result has not been 
 a poetical immortality, to say the least. From 
 
RiKEE. 277 
 
 Blackstone to Story, the lawyers have been rather 
 prosaic poets. But as Mansfield had his Pope 
 and Cowper, so Hiker, had his Halleck, and al- 
 though the later subject is less distinguished, yet 
 his poet is not less wise, graceful and witty than 
 those of the last century. 
 
 "The Recorder" is one of a series of poems 
 written by Fitz G-reene Halleck and Joseph Rod- 
 man Drake, and published in the New York 
 Evening Post some fifty or sixty years ago. The 
 poems are on social and political topics of local 
 interest, and are extremely personal and satirical. 
 They abound in wit, grace, and imagination, and 
 their satire is tempered by a prevailing good 
 humor. Here are to be found some of the finest 
 passages in American poetry, passages which 
 wiU live as long as our country. Such are the 
 famous apostrophe to the American Flag, by 
 Drake, and that to the poet, Bryant, in " The 
 Recorder." The poem in question is a gem of 
 the purest water, combining political wisdom, 
 playful banter, and the most exquisite imagina- 
 tion, in the most harmonious verse. Its very 
 mottoes contain the keenest satire, — the " soft 
 Recorder," from Milton, and "lives in Settle's 
 numbers one day more," from Pope, — the lat- 
 ter double-edged. The poem is sub-entitled, "A 
 Petition, by Thomas Castaly," and its prayer is for 
 
278 EiKEE. 
 
 " Permission, sir, to write your life, 
 Witli all its scenes of calm and strife, 
 
 And all its turnings and its windings, 
 A poem in a quarto volume — 
 Verse, like the subject, blank and solemn." 
 
 The poet then depicts the legal influence of 
 his friend, whom he describes as "the Oberon 
 of life's fairy scene." 
 
 " Yes, you have floated down the tide 
 Of time, a swan in grace and pride. 
 And majesty and beauty, till 
 The law, the Ariel of your will, 
 Power's jjest beloved, the law of libel 
 (A bright link in the legal chain) 
 Expounded, settled, and made plain. 
 By your own charge, the juror's Bible, 
 Has clipped the venomed tongue of slander. 
 That dared to call you ' Party's gander.' " 
 
 The poet then proceeds to banter the Recorder 
 on his " only failing, diffidence," and his dislike 
 of office: 
 
 "An amiable weakness, given 
 
 To justify the sad reflection, 
 That in this vale of tears not even 
 
 A Riker is complete perfection ; 
 A most romantic detestation 
 Of power and place, of pay and ration ; 
 A strange unwillingness to carry 
 
 The weight of honor on your shoulders, 
 For which you have been named the very 
 
 Sensitive plant of office-holders, 
 A shrinking bashfulness, whose grace 
 Gives beauty to your manly face." 
 
 We have been accustomed to suppose that party 
 rancor and newspaper abuse have reached an un- 
 paralleled height in our day, but Mr. Parton has 
 shown that they are mild when contrasted with 
 
RiKER. 279 
 
 the rage and violence of seventy years ago. Poli- 
 ticians were then not only in the habit of abus- 
 ing and lying about each other, but were quite 
 ready deliberately to take each other's lives. The 
 strife between the Republicans and the Feder- 
 alists led to many duels. That between Burr 
 and Hamilton is historic. In one between De- 
 Witt Clinton and Colonel John Swartwout, Mr. 
 Riker was second to Mr. Clinton. Subsequently 
 he fought one with Robert Swartwout, brother 
 of the Colonel. This occurred in 1803, at Ho- 
 boken, near the ground where Hamilton subse- 
 quently fell. Mr. Riker was severely wounded 
 in the leg just above the ankle, and was con- 
 fined to his house seven months. Amputation 
 was averted only by his own indomitable will. 
 Hamilton interposed to prevent any legal pros- 
 ecution of Riker for this offense, and frequently 
 visited him at his house, in "Wall street, near 
 the late Custom House. Halleck refers to this 
 duel in " The Recorder " : 
 
 " The Recorder, like Bob Acres, stood 
 Edgeways upon a field of blood. 
 
 The why and wherefore Swartwout knows; 
 PuU'd trigger, as a brave man should. 
 And shot, God bless them, his own toes.'' 
 
 This seems to be a libel upon the Recorder's 
 courage and marksmanship, for he was " honor- 
 ably " wounded, and not only was as bald, but 
 on the authority of his antagonist himseK, was 
 
280 KiKEE. 
 
 " as brave as Julius Caesar." It is also said that 
 in several riots in the city he displayed great 
 courage, presence of mind, and chivalry, and 
 that his presence on those occasions was influen- 
 tial in suppressing the disorder. 
 
 The Recorder was a handsome man, and is 
 said to have been not a little vain of his good 
 looks. He had a fine head, perfectly bald. On 
 this circumstance the genial satirist seizes: 
 
 " And time has worn the baldness now 
 Of Julius Csesar on your brow ; 
 Tour brow, like his, a field of thought, 
 With broad, deep furrows, spirit-wrought, 
 Whose laurel harvests long have shown 
 As green and glorious as his own ; 
 And proudly would the Caesar claim 
 Companionship with Riker's name. 
 His peer in forehead and in fame." 
 
 There are two engraved portraits extant of Ri- 
 ker, one of which is a copy of a plaster bust, en- 
 graved for the grand book published by the city 
 of New York, descriptive of the celebration which 
 took place on the opening of the Erie canal. Of 
 the picture from this bust the poet says : 
 
 " Your portrait, graven line for line, 
 From that immortal bust in plaster. 
 The master-piece of Art's great master, 
 
 Mr. Praxiteles Browere, 
 Whose trowel ia a thing divine." 
 
 Of this picture, now quite scarce, Mr. A. 
 Oakey Hall, in 1863, sent a photographic copy 
 to the poet, who responded : " The photograph, 
 as you observe, does not do the Recorder justice, 
 
ElKEE. 281 
 
 for, although showing successfully his remarkably 
 fine forehead, it gives us no idea of the play of 
 his features, which, as you doubtless remember, 
 were in their expression, when lit up by a merry 
 thought or an impulse of manly courtesy, as fas- 
 cinating as his characteristic bow." The bust 
 represents the Recorder with bare neck, and 
 a Roman toga grandly thrown across the shoul- 
 ders. The toga and the baldness were vulnerable 
 points for the mischievous poet. The Corpora- 
 tion Memoir, in its description of the engraving 
 from the bust, felicitously remarks : " This origi- 
 nal bust is an exquisite specimen of the new art 
 of making genuine fac-similes from the living 
 subject ; it was recently invented by John Henri 
 Isaac Browere, a native of this city. No paint- 
 ing or modeling can equal it in giving the true 
 form and expression of the countenance ; willful 
 ignorance, or something worse, can alone object 
 to this valuable discovery; the multitudes of 
 those of the highest rank who have undergone 
 the operation, are sufficient witnesses to its not 
 being executed with any painful or disagreeable 
 circumstances to the subject." It seems a pity 
 that this remarkable process should have been 
 one of the lost arts, but the artist is indirectly im- 
 mortalized by the poet, if not by -his own works. 
 The same volume also contains a fac-simile of a 
 letter addressed on behalf of the corporation, by 
 36 
 
282 KiKEE. 
 
 the liecorder and othel-s, to Adams, Jefferson and 
 Carroll, the three surviving signers of the Dec- 
 laration of Independence, accompanying gold 
 medals struck by the corporation in commemo- 
 ration of the opening of the canal. The Recor- 
 der's signature is large and bold, as a Recorder's 
 should be, and indicates the consciousness of su- 
 periority. 
 
 The poet compares the Recorder to Caesar, not 
 only in baldness and bravery, but further : 
 
 " One made the citizen a slave, 
 The other makes him more — -a fool. 
 
 The Caesar an imperial crown, 
 His slaves' mad gift, refused to wear ; 
 
 The Eiker put his fool's cap on, 
 And found it fitted to a hair." 
 
 •Again, there is a sly hit at the Recorder's fond- 
 ness for civic display : 
 
 " The Caesar passed the Rubicon, 
 With helm and shield, and breast-plate on. 
 
 Dashing his war-horse through the waters ; 
 The Riker would have built a barge 
 Or steamboat at the city's charge. 
 
 And passed it with his wife and daughters." 
 
 In another of the " Croakers," entitled " A La- 
 ment for Great Ones Departed," HaUeck alludes 
 to Riker. In this satire he laments the de- 
 parture of ail the great men of the city to Al- 
 bany. He complains that even the Governor has 
 gone, and. thus immortalizes the old First Dutch 
 Church of that city : 
 
RiKEE. 283 
 
 " Long has proud Albany, elate, 
 
 Reared her two steeples high in air, 
 And boasted that she ruled the State, 
 Because the Governor lives there !" 
 
 But for all these deprivations there is some com- 
 pensation : 
 
 " Tho' heavy is our load of pain. 
 
 To feel that fate has thus bereft us, 
 Some consolations yet remain. 
 For Dickey Riker still is left us." 
 
 "We also have in " The Recorder " a genial pic- 
 ture of the great man presiding in his court in 
 the City Hall, — that Hall surmounted in those 
 days by an extraordinary architectural divinity, 
 to which the poet thus alludes in " Fanny :" 
 
 " And on our City Hall a Justice stands ; 
 
 A neater form was never made of board. 
 Holding majestically in her hands 
 
 A pair of steelyards and a wooden sword ; 
 And looking down with complaisant civility — 
 Emblem of dignity and durability." 
 
 But now for the description of the Recorder in 
 his court : 
 
 " With what delight the eyes of all 
 Gfaze on you, seated in your Hall, 
 
 Like Sancho in his island, reigning. 
 Loved leader of its motly hosts 
 Of lawyers and their bill of costs, 
 
 And all things thereto appertaining. 
 Such as crimes, constables, and juries, 
 Male pilferers and female furies. 
 The police and the polissons. 
 Illegal right and legal wrong. 
 Bribes, perjuries, law-craft, and cunning, 
 Judicial drollery and punning ; 
 And all the et ceteras that grace 
 That genteel, gentlemanly place 1" 
 
284 EiKEE. 
 
 Doubtless Mr. Kiker was a prominent member 
 of the " Forum." The " Forum " was a debating 
 society, held at the City Hotel, on Friday even- 
 ings, admission two shillings, where the great 
 men of New York discussed the important ques- 
 tions of the day. Halleck makes merry about 
 them in the " Croaker " entitled " The Forums." 
 After denouncing those who dare 
 
 " To call these sons of Eloquence 
 A stammering, spouting, scliool-boy throng." ' 
 
 He continues : 
 
 " 'Tis false — for they in grave debate 
 Weigh'd mighty themes of church and state, 
 With words of power, and looks of sages ; 
 While, far-diflfused, their gracious smile 
 Sooth'd Bony in Ms prison -isle. 
 
 And Turkish wives in Harem's cages !" 
 
 In still another " Croaker " he finds a cheap 
 mfo] 
 blies : 
 
 comfort for ennui in resorting to these assem- 
 
 " Weekly, I'll buy with pious pence, 
 A dose of opiate eloquence. 
 
 And sleep in quiet at the Forum !" 
 
 Halleck closes " The Eecorder " with an allu- 
 sion to a subject which, having then begun to 
 excite remark, as we infer from his verses, has in 
 our day caused some painful revelations : 
 
 " Look o'er this letter with a smile ; 
 And keep the secret of its song 
 As faithfully, but not as long 
 As you have guarded from the eyes 
 Of editorial Paul Prys, 
 
RiKb:E. 285 
 
 And other meddling, muvmuring claimants. 
 
 Those Eleusinian mysteries, 
 
 The city's cash receipts and payments." 
 
 Although Mr. Castaly in the poem claims an 
 equality of age with the Recorder, yet this was^ a 
 piece of youthful, or rather middle-aged, impu- 
 dence, for the verses were written in 1828, when 
 the poet was only 38 years old. When the 
 piece was first published it was prefaced with 
 the following remarks by Mr. Bryant : " There 
 is a wonderful freshness and youthfulness of im- 
 agination, for a septuagenarian, if not an octogen- 
 arian poet, as the writer miist be if we are to 
 judge from the chronology of his initial lines. 
 He has lost nothing of the grace and playfulness 
 which might have belonged to his best years. 
 The sportive irony of the piece will amuse our 
 readers, and offend nobody. Indeed, we are not 
 sure but a part of this is directed against our- 
 selves ; biat, as Mr. Castaly has chosen to cover it 
 up with dashes, it might imply too great a jeal- 
 ousy of our dignity to make the application ; and 
 to mutilate the poem, by omitting any part, is 
 contrary to the strict charge of the writer, who 
 insists upon our publishing the whole or none." 
 We only wish that it were pertinenl to our sub- 
 ject to quote the allusion to Bryant, for a more 
 exquisite compliment was never paid by one poet 
 to another. Mr. Halleck himself says of the 
 Recorder and the satire : " 1 respected and es- 
 
286 RiKEE. 
 
 teemed him ; and he kindly bore with me for 
 selecting one in his high position as an ' office- 
 holder,' to do duty as a vicarious sufferer for the 
 sins of the whole ' class,' in the consciousness of 
 my knowledge of his own individual blameless- 
 ness." 
 
 A great many good stories were laid at the 
 Recorder's door, as also in the case of President 
 Lincoln, some of which he was not liable to father. 
 One of the best of these bears internal evidence 
 of its truth. The Recorder, through long ad- 
 ministration of the criminal law, became a kind 
 of machine, and had certain favorite phrases 
 which he frequently employed in his sentences. 
 One of these was, " this crime has become alto- 
 gether too prevalent in this community," and 
 another was, " you must suffer some," — as if 
 it gave his kind nature a sort of wrench to 
 punish anybody. On one occasion a man was 
 convicted of stealing another's "wash" hung out 
 to dry ; whereupon his honor, employing the old 
 phrase for stealing and carrying away, thus de- 
 livered himself: "This crime of lifting linen 
 has become altogether too prevalent in this com- 
 munity. You must suffer some." As Bunsby 
 would say, "the bearins o' this obserwation lies 
 in the application on it." On another occa- 
 sion he thus observed to a woman whom he was 
 sending to prison : " You must suffer some, I 
 
EiKER. 287 
 
 miist send you to prison. Your lot will be hard. 
 Your fare will be plain ; your clothes will be 
 coarse; you will be condemned to silence, and 
 much to solitude ; yoii, will ha/oe to read your 
 Bible." It was not Mr. Hiker's habit to read 
 orders submitted to him at chambers for his sig- 
 nature ; and it is said that Mr. Anthony Dey, on 
 a wager, once got him thus to grant an order for 
 the Recorder's own commitment ! 
 
 It is surprising that the fame of so prominent 
 and useful citizen as Mr. Hiker should be almost 
 entirely dependent on tradition. Very little has 
 been recorded of the great Recorder. Even Dr. 
 Francis, who in his garrulous " Old New York," 
 has something to say of nearly every prominent 
 citizen of the old town, and for that matter, of 
 nearly every distinguished man who has overlived, 
 has not a word concerning Hiker. Mrs. Greato- 
 rex, in her etchings of Old New York, gives a 
 channing picture of the old Hiker mansion, built 
 by the Recorder, on the shore of the East river, 
 near 75th street, and an interesting account of 
 the family. But the Recorder must rest his 
 claims to mimortality on his poet, and posterity 
 ought to be grateful to the subject furnishing 
 the occasion for one of the most delightful poems 
 of modern times. In bidding him farewell, the 
 obscure of our profession can* claim an equality 
 with the distinguished, in one particular, in which 
 
288 lilKEE. 
 
 the poet traced a resemblance between himself 
 and the subject of his song : 
 
 "Yet are we, be the moral told. 
 Alike in one thing — growing old. 
 Ripened like summer's cradled sheaf, 
 Faded like autumn's falling leaf — 
 And nearing, sail and signal spread. 
 The quiet anchorage of the dead. 
 For such is human life, wherever 
 
 The voyage of its bark may be. 
 On home's green-banked and gentle river, 
 
 Or the world's shoreless, sleepless sea." 
 
STOEY. 
 
 JOSEPH STOEY was born at Marblehead in 
 1779. His father was an ardent whig, one 
 of the " Indians " who held the tea party in Bos- 
 ton harbor, and a surgeon in the patriot army. 
 His mother, who seems to have been a woman of a 
 Superior character, did well to change her maiden 
 name, for it was Mehitable Pedrick. Joseph was 
 the eldest of eleven children, by this marriage, 
 and had seven half-brothers and half-sisters by 
 his father's former marriage.. Dr. Story being 
 an " Indian " it was quite in keeping that he 
 should have a quiver so full of arrows. Joseph 
 was a precocious boy. He wrote verses at the age 
 of twelve. Desiring to enter Harvard Univer- 
 sity in the winter vacation, and finding it neces- 
 sary to pass an examination in all the studies of 
 the freshman class for the six months preceding, 
 as well as in the usual preparatory studies, he 
 read, in six weeks, Sallust, Horace's odes, two 
 books of Livy, three of Xenophon's Anabasis, 
 two of the Iliad, besides Enghsh Grammar, Phet- 
 oric, and Logic, and successfully passed the er.- 
 37 
 
290 Stoky. 
 
 amination. Among his classmates was Dr. Chan- 
 ning, who led the class, Story standing next to 
 him in merit. His graduating exercise was a 
 poem on "Eeason." He also displayed some 
 talent for drawing. During his term of law study, 
 he composed a poem of some fifteen hundred 
 lines, on the "Power of Solitude," which he 
 afterward published with some other poems. He 
 was admitted to the bar at the age of twenty- 
 two, and opened an office at Salem. At the age 
 of twenty-five, he married Miss Oliver, a cultiva- 
 ted young lady, some of whose poems were em- 
 braced in his volume. She survived but a few 
 months. Three years later he married Miss Wet- 
 more, of Boston. He rose rapidly at the bar, 
 and in politics. He represented Salem in the 
 legislature at the age of twenty-six, and at the 
 age of twenty-nine was chosen to the lower house 
 of Congress. Serving only one term in Congress, 
 he was subsequently speaker of the Massachusetts 
 House of Representatives, and at the age of 
 thirty-one, without solicitation on his part, he 
 was appointed associate justice of the Supreme 
 Court of the United States, which office he held 
 till his death. On the death of Marshall, he 
 acted as Chief Justice till the appointment of 
 Taney. In 1829, at the age of fifty, he was ap- 
 pointed Dane professor of law at Harvard Uni- 
 
Stoey. 291 
 
 versity, and lectured there until his death. He 
 wrote many legal treatises. His death occurred 
 in 1845, when he was sixty-six years of age. 
 Such are the unadorned facts of the life of the 
 most influential and widely celebrated lawyer 
 who ever flourished in America. Judge Story's 
 Life has been elaborately written by his son 
 "William W. Story, who himself is a learned law- 
 yer, the author of a standard work on Contracts ; 
 is celebrated in the domain of elegant letters as a 
 poet and the author of the most charming of 
 books on Kome ; and is the i^rst of living Ameri- 
 can sculptors. As in the case of Parsons, the 
 father's peculiar talents have descended to the 
 son, and the son has demonstrated and acknowl- 
 edged the inheritance in a memoir of great and 
 permanent interest. 
 
 Story's experience at the bar was not of suffi- 
 cient duration fully to develop his capacities as 
 an advocate. At an age when most lawyers are 
 just beginning to be known, and to acquire an 
 income sufficient for the purposes of a liberal 
 living, he was elevated to the bench, and sat in 
 the judgment-seat of the great Marshall. Yet, 
 when at the bar, he evinced capacities of the 
 highest order, and met, on not unequal terms, 
 the giants of the Massachusetts courts, always 
 sustaining himself with credit, sometimes with 
 shining superiority. He was even employed to 
 
292 Stoey. 
 
 conduct causes before the ultimate tribunal at 
 "Washington. When appointed to the bench, his 
 professional income was $5,000 a year, which was 
 equal certainly to four times that sum — probably 
 five times that sum — at the present day. He 
 early demonstrated his vast legal learning and his 
 self-reliance, fie relates one case {Bust v. Low, 
 6 Mass. 90), involving the question, whether, in ' 
 the absence of any covenant or prescription, the 
 tenant of a dose is bound to fence against the 
 cattle of strangers, or only as against such cattle 
 as are rightfully on the adjoining land. In this 
 case he was junior counsel. The opposite party 
 relied on an expression of Lord Plale in a note to 
 Fitzherbert. Story argued that Hale was wrong 
 and had misunderstood the authorities. " What ! " 
 said Chief Justice Parsons, " Brother Story, you 
 undertake a difficult task." Story's proposition 
 was only less audacioiis than Webster's reply, 
 when Lord Camden's opinion was cited against 
 him ; — '" But, your honor," said he, " I differ 
 \(dth Lord Camden." Story convinced the Chief 
 Justice that he was right, by numerous citations 
 and translations from the Year Books ; but when 
 Parsons delivered his opinion, as Story com- 
 plained, he appropriated all the young lawyer's 
 learning as his own, without a word of credit, as 
 if he, himself, had discovered Hale's mistake. 
 But this is a common thing among judges. By 
 
Stoey. 293 
 
 virtue of the years of diligent study of lawyers 
 on particular cases, they manage to pass for very 
 learned personages. BiTt the lawyers ought not 
 to complain. Theirs is the fate of the tributary 
 stream that flows into a great river — it is never 
 thought of, either by the river or those who float 
 on its bosom. Story also exhibited a prodigious 
 and exact memory, great clearness of statement, 
 and considerable power of extemporaneous ora- 
 tory. Still it is probable that fortune was kind 
 in placing him in a position where his peculiar 
 geniiis might shine to greater advantage than in 
 the athletic struggles of the bar. 
 
 We are next to regard Story during his thirty- 
 five years of judicial service. He performed an 
 amount of judicial labor almost without parallel, 
 either in quality or quantity, in the history of 
 jurisprudence. His judgments in the Circuit 
 Court comprehend thirteen volumes. His opin- 
 ions in the Supreme Court are found in thirty- 
 five volumes. Most of these decisions are upon 
 matters of grave difficulty, and many of them 
 of first impression. Story absolutely created a 
 vast amount of law for our country. Indeed, he 
 was essentially a builder. When he came to the 
 bench, the law of admiralty was quite vague and 
 unformed ; his genius formed it as exclusively as 
 StoweU's did in England. He also did much 
 toward building up the equity system which has 
 
294 Stoey. 
 
 become part of our jurisprudence. In questions 
 of international and constitutional law, the breadth 
 and variety of his legal learning enabled him to 
 shine with peculiar brilliancy. It is suflBcient 
 to say that there is scarcely any branch of the 
 law which he has not greatly illustrated and en 
 larged, — prize, constitution, admiralty, patent, 
 copyright, insurance, real estate, commercial law 
 so called, and equity, — all were gracefully famil- 
 iar to him. The most celebrated of his judg- 
 ments are De Lovio v. Boit, in which he investi- 
 gates the jurisdiction of the Admiralty ; Martin 
 V. Hunter'' s Lessee, which examines the appellate 
 jurisdiction of the United States Supreme Court ; 
 Dartmouth College v. WoodvMrd, in which the 
 question was, whether the charter of the college 
 was a contract within the meaning of the consti- 
 tutional provision prohibiting the enactment, by 
 any State, of laws impairing the obligations of 
 contracts ; his dissenting opinion in Charles River 
 Bridge Co. v. The Warren Bridge, involving 
 substantially the same question as the last case ; 
 and the opinion in the Girard will case. These 
 are the most celebrated, but are scarcely superior 
 to scores of his opinions in cases never heard of 
 beyond the legal profession. His biographer 
 is perhaps warranted in saying of his father's ju- 
 dicial opinions : " For closeness of texture and 
 compact logic, they are equal to the best judg- 
 
Stoet. 295 
 
 ments of Marshall ; for luminousness and method, 
 they stand beside those of Mansfield ; in elegance 
 of style, they yield the palm only to the prize 
 cases of Lord Stowell, but in fullness of illustra- 
 tion and wealth and variety of learning, they 
 stand alone." If we were to dissent from any 
 part of this judgment, it would be from the first 
 statement. Story, as we have said, was a builder, 
 but he was an ornate builder. There is the same 
 difference between his judgments and Marshall's, 
 that there is between the Corinthian and the 
 Doric orders of architecture. The biographer 
 says : " The naked branches of Marshall's judg- 
 ments, well-knit, fibrous, and unincumbered, 
 stand forth to challenge the bitterest assaults, like 
 a noble oak in winter, while those of my father 
 are like the same tree clothed in the luxuriance of 
 its summer foliage." This is claiming too much 
 for Story. His distinguishing characteristic is 
 not strength, but learning, fullness, and variety. 
 His opinions are most entertaining reading, but 
 as mere enunciations of the law they perhaps err 
 on the side of diffuseness. In his personal bear- 
 ing on the bench he was the most urbane and 
 patient of men. Considering his vast learning 
 and the wealth of elaboration which he bestowed 
 on his judgments, he was remarkably prompt in 
 deciding ; there were no arrears in his court ; 
 when he died he had decided every case save one. 
 
296 Stoey. 
 
 Story's humanity and fearlessness are illustrated 
 by his persistent warfare against the slave trade. 
 This imholy traffic, although prohibited by law, 
 was winked at by custom, and opposition to it 
 was certain to subject its opponent to the power- 
 ful enmity of a considerable class. Story charged 
 the grand juries in the most emphatic and earnest 
 manner on this subject, and it was mainly owing 
 to the change wrought in public sentiment by his 
 powerful appeals, that the trade was uprooted in 
 New England. The most vi^dd picture of the 
 horrors of the slave-ships to be found is in the 
 charge which he was accustomed to deliver on 
 this crime. To sum up his merits as a judge, it 
 is sufficient to say that he was the intimate and 
 beloved friend of Chief Justice Marshall, and 
 that great man wished Story to succeed him in 
 the highest judicial position in the nation. 
 
 We now come to consider Story as an author 
 and teacher of law. His works must ever remain 
 a marvelous monument to his industry and 
 devotion as well as to his unrivaled learning. 
 With all the engrossing demands of his judicial 
 office, he found time to write thirteen volumes 
 on legal subjects, namely, Agency, Bailments, 
 Bills, Notes, Partnership, Equity, Jurisprudence, 
 Equity Pleadings, Conflict of Laws, and the 
 Constitution of the United States. Several of 
 
Stoky. 297 
 
 these treatises, particularly those on Bailments, 
 Equity, Jurisprudence, Conflict of Laws, and the 
 Constitution, will probably long remain unri- 
 valed. These volumes contain an accumulation 
 of legal learning that is simply wonderfal, with- 
 out precedent, and never to. be pai-alleled ; enun- 
 ciated with an unwavering accuracy and a crystal- 
 line clearness; and expressed in a style which 
 attracts instead of repelling the novice. It is 
 these works which have made Justice Story's 
 authority almost as great in Westminster Hall as 
 in our own courts ; which induced Lord Den- 
 man to say that Story's opinion, which in a cer- 
 tain case differed from that of the Queen's Bench, 
 would " at least neutralize the effect of the 
 English decisions, and induce any of their courts 
 to consider the question as an open one ; " which 
 led Lord Campbell, in the House of Lords, to 
 pronounce him "greater than any law-writer 
 of whom England could boast, or whom she 
 could bring forward since the days of Black- 
 stone," and to write, in a letter to him, that the 
 lawyers of France and Grermany, as well as 
 England and America, would concur in placing 
 him " at the head of the jurists of the present 
 age ; " which warranted Charles Sumner in saying 
 " that, at the moment of his death, he enjoyed 
 a renown such as had never before been achieved, 
 38 
 
298 Stoky. 
 
 during life, by any jurist of the common law ; " 
 and which caused Daniel Webster to write, from . 
 London, " I have not seen a lawyer or judge 
 who has not spoken of him and praised his 
 writings, and if he were here he would be one of 
 the greatest professional lions that ever prowled 
 through the metropolis." Considered as histori- 
 cal views of the several departments of the law 
 of which they treat, these works are faultless; 
 as practical text-books for the lawyer their value 
 is not so high. The fullness of the author's 
 learning led him always to be difEuse. The 
 practitioner in search of a terse statement of a 
 principle now in vogue, must frequently turn 
 over page after page describing what the civil law 
 used to be. There is often a provoking lack of 
 point and precision. In short, these books are 
 fitter for the well-read lawyer than the student. 
 But with all their faults their place probably 
 never will be usurped in our time, and they will 
 continue to afford instruction and pleasure to a 
 century of lawyers to come. In addition to these 
 works. Story performed an immense amount of 
 professional literary labor. He volimteered to 
 assist Mr. Wheaton in preparing his Digest of 
 the Decisions of the United States Supreme 
 Court, and actually prepared nine pf the most 
 important titles. He also wrote several legal 
 reviews, each of which is an exhaustive mono- 
 
Stoey. 299 
 
 graph. As if these prodigious judicial and au- 
 thorial labors were not sufficient to fill his time, 
 he was for the last sixteen years of his life a lec- 
 turer on law at Harvard University, the Dane 
 Professorship having been endowed by its founder 
 expressly on the condition that Story should fill 
 the chair. Kent and Story may be regarded as 
 the first scientific teachers of law in this country, 
 and their infliience through this means has 
 been incalculable. To this duty Story bent all 
 the ardor and devotion of his nature. He had 
 the most eminent qualifications of a teacher, and 
 under his tuition the infant school rapidly ex- 
 panded until it has now become the most influ- 
 ential institution of the kind in the land. Fol- 
 lowing the example of these great teachers, other 
 schools have sprung np, until the system of 
 conveying legal instruction by lectures has be- 
 come as common as in any other branch of 
 learning. Story's law lectures were always ex- 
 temporaneous, and therefore have not been pre- 
 served like Kent's. 
 
 Like a good many other men who have turned 
 out to be nothing but lawyers. Story early 
 imagined that he was a poet. ITot content with 
 an occasional flirtation with the muse, he com- 
 mitted himself to a serious declaration by a 
 volume of verse. In his youth there was a rage 
 in our country for the speedy fruitage of the 
 
300 Stoey. 
 
 cultivation of old nations, without waiting for 
 tlie growth of the tree. Frontier settlements 
 were named after classic cities and ancient heroes. 
 Colonel Trumbell painted historical pictures of 
 grand dimensions, which our fathers put in the 
 rotunda of the national capitol, and which are 
 very commonplace and wooden. Our architect- 
 iire was modeled on the orders of Greece ; every 
 cou.ntry village had its wooden cottages with 
 green window-shutters and Doric or Corinthian 
 porticoes. Every cultivated man seemed to think 
 he must write verse ; our country must have 
 poets, like other countries. Bancroft, the his- 
 torian, published a volume of poems. So Story, 
 possessing a dangerous facility for rhyming, 
 wrote some unobjectionable didactic sentiments 
 in correct heroic verse, after the manner, but not 
 after the matter, of Pope. No valid cause could 
 be shown why his verse should not be sujDpressed ; 
 it might just as well have been prose. His ma^ 
 turer judgment told him he was not a poet, and 
 he assiduously endeavored to buy up and suppress 
 the volume, with such success that it has become 
 very scarce. His son has given copious extracts 
 from the " Power of Solitude," which one finds 
 it difScult to read. Story however wrote a motto 
 for the Salem Eegister newspaper, which is 
 worthy of quotation : 
 
Stoki-. 301 
 
 " Hare shall the Press the People's right maintain, 
 Unawed by influence and unbribed by gain ; 
 Here Patriot Truth her glorious precepts draw. 
 Pledged to Religion, Liberty, and Law." 
 
 Occasionally the " poet " deviates from album 
 verses, verses on tlie death of friends, and ethi- 
 cal sentiments, into a vigorous strain like the fol- 
 lowing, written when on the bench in his memo- 
 randum book of arguments : 
 
 " With just enough of learning to confuse. 
 With just enough of temper to abuse, 
 With just enough of genius, when confest, 
 To urge the worst of passions for the best. 
 With just enough of all that wins in life 
 To make us hate a nature formed for strife, 
 With just enough of vanity and spite 
 To turn to all that's wrong from all that's right, 
 Who would not curse the hour when first he saw 
 Just such a man, called learned in the law. " 
 
 Stoiy passed judgment on his own poetry in his 
 letter to Ezekiel Bacon, acknowledging the 
 receipt of the latter's volume of melancholy 
 verse, entitled, " Recreations of a Sick Room." 
 He there says : "I begin to suspect that both of 
 us belong 'to the old school of poetry, which the 
 young men now treat as a mere piece of antiq- 
 uity, historically well enough, but bygone. It 
 may be so, but I cling to Dryden and Pope and 
 G-ray and Goldsmith and Johnson as my stand- 
 ards." 
 
 The correspondence of Story is most interesting. 
 It embraces letters to and from the most cele- 
 brated statesmen, lawyers, and publicists of the 
 
302 Stoey. 
 
 old and the new world. It abounds in the most 
 vivid portraits of Story's contemporaries. Here 
 we find the best descriptions of the great judges 
 and lawyers of America in his day — Pinkney, 
 Emmett, Martin, Parsons, Marshall, "Webster, 
 and others — ■ with an abundance of lively anec- 
 dote. These letters show on what intimate 
 terms Story lived with the great men of that 
 time, and how earnestly and devotedly he gave 
 himself to every mooted reform in the law. They 
 show also how he despised politics, and how he 
 deplored its unseemly and dishonest turmoils. 
 Story never went abroad, but he proposed on one 
 occasion to go, and even announced to his friends 
 in England his purpose of sailing at a certain date. 
 This purpose was frustrated, and we find in let- 
 ters from Everett how great was the disappoint- 
 ment to them. Brougham and Denman gave 
 dinners in his honor, in anticipation of his arrival, 
 and a regular law dinner at Sergeant's Inn was 
 proposed. At Brougham's dinner were present, 
 besides the Lord Chancellor, Campbell, Spencer, 
 Lansdowne, Aukland, Clarendon, Lord Chief 
 Justice Tindal, Dr. Lushington, Pollock, Austin, 
 and others, and at Denman's, Abinger, Parke, 
 Wightman, Alderson, and others, in addition. 
 No wonder that Everett writes, " Pray, dear judge, 
 throw the vials out of the window, and come and 
 taste a little of the ' Viginti Annorum ' of these 
 
Stoet. 303 
 
 not unsociable sages." These letters also give us 
 an amusing idea of the inconveniences of travel 
 in those times. In 1807, Story being on his way 
 to Washington, by a sailing vessel through Long 
 Island Sound, was cast away on Blackwell's 
 Island, and escaped with great discomfort. In a 
 letter signed " Jer. Melford," addressed to Samuel 
 P. P. Fay as" Matthew Bramble," he speaks of 
 the journey from Philadelphia and Washington, 
 as among the " Miseries of Human Life " and 
 pronounces the roads " as execrable as can be 
 found in Christendom," and says "you would 
 hardly believe yourself in a Christian country." 
 In 1825, Mr. and Mrs. Story, with Daniel Web- 
 ster and Mrs. Webster, journeyed from Boston to 
 Niagara Falls. They were live days, including 
 Sunday, between Boston and Albany. From 
 Albany they went to the Catskills. In those 
 days the legal profession was held in such honor, 
 that the steamboats were named after great law- 
 yers. Thus the party sailed from Albany to Cats- 
 kill on the steamboat " Chancellor Livingston," 
 and returned on the " Chief Justice Marshall." 
 From Albany they went west on the Erie canal, 
 then a novel wonder. The Judge writes : " Ex- 
 cept when you pass a lock, not the slightest mo- 
 tion is felt in the boat, though the rapidity with 
 which the surrounding objects pass by you is 
 
304 Stoet. 
 
 very apt at first to make you a little dizzy !" 
 Writing from Saratoga, he says : " You have no 
 notion how diflicult it is to find a Boston news- 
 paper here, or anywhere else out of Massachusetts. 
 * * * We are therefore not so important 
 abroad as we imagine ourselves to be ; and the 
 vast extent of enterprise, domestic as well as 
 foreign, of the State of New York puts quite 
 into the shade all our Massachusetts pretensions 
 of improvement and industry." So much for 
 Massachusetts. To be candid, however, we must 
 also quote what the judge says of Albany : " It 
 appears to have a thriving business air, and has 
 some good public buildings, but the general 
 impression on my mind was not very agreeable." 
 Story's bearing was remarkable for its uniform 
 urbanity and courtesy. His gentle and affection- 
 ate heart ever prompted him to acts and words 
 of kindness. He was a delightful companion ; 
 his conversation abounded in wit, anecdote, and 
 playfulness, and rendered him the charm of the 
 social circle. His son relates a characteristic 
 story illustrating his sportiveness. Stephen Long- 
 fellow, a lawyer, the father of the poet, had a 
 phrase for which he was noted : " But there is a 
 distinction, may it please your honor." One of 
 the bar penned his epitaph thus: "Here lies 
 Stephen Longfellow, LL. D., etc.; born, etc.; 
 died, etc. ; with this distinction, that such a man 
 
Stoey. 305 
 
 can never die." This went around the bar, and 
 reached the bench, and even to the subject of it. 
 Soon afterward, in an argument before Story, Mr. 
 Longfellow was pressing a point, but meeting 
 an obstacle, exclaimed as usual, " But there is 
 this dis — ," and hesitated. " Out with it. Brother 
 Longfellow;" said the judge, with a pleasant smile. 
 But Mr. Longfellow used another expression then 
 and ever after. Captain Hall, in his celebrated 
 Travels, declares that Story was the most charm- 
 ing American he ever met. His temperament 
 was vivacious and enthusiastic, overflowing with 
 animal spirits; his sympathies were quick and 
 deep ; his sense of right was profound ; his nature 
 was capacious and liberal. Charitable without 
 display, and religions without ostentation, he in- 
 culcated and exemplified the noblest, purest ideas 
 of human life. Story was a true democrat, famil- 
 iar with m.en of all classes, but commanding re- 
 spect for his office from all. Plis biographer relates 
 that once when traveling in a stage-coach on his 
 circuit, he rode with the driver,, and a plain man 
 at his side engaging him in conversation, be- 
 came so interested in him, that when the coach 
 stopped, the stranger invited the judge to "take 
 a drink," and at the next instant was quite abashed 
 at hearing some one address him as Judge Story. 
 An indefatigable reader, his letters abound in al- 
 lusions to the English literature. His favorite 
 39 
 
306 Stoey. 
 
 poets were Gray and Pope. It is a quite signifi- 
 cant evidence of his sympatheticand tender nature 
 that he was chosen to deliver the addrees at the 
 dedication of Mount Auburn Cemetery, and also 
 at the public funeral of Captain Lawrence of the 
 United States ship of war " Chesapeake," who 
 was killed in action, and whose last words " don't 
 give up the ship," have passed into history. 
 
 In reviewing his life we are not so much struck 
 with his genius as with his simplicity, unselfish- 
 ness, and laboriousness. He worked not for him- 
 self, but for posterity. What he acquired he used 
 not for his own advancement, but freely bestowed 
 it on the world. Free from vanity, arrogance, and 
 self-seeking, he passed his life in seeking the great- 
 est good of mankind. As few men have bestowed 
 so much, so few have labored so hard to acquu-e. 
 Order, method, and punctuality'marked his whole 
 career. So economical of time was he that he 
 found time for every thing. Time is always 
 generous to those who cherish and husband his 
 moments ; he offQi's an invaluable capital free to 
 every one who will avail himself of it. Story's 
 fame is the result, not of genius, but of that 
 labor which conquers all things. His life, passed 
 in the study and teaching of human law, was a 
 fitting preparation for his study of that higher 
 law, whose seat is the bosom of God, whose voice 
 is the liarraonj'- of the world. 
 
DAI^IEL WEBSTER. 
 
 AT any time, during the last forty years, a 
 vast majority of Americans, if asked who 
 is tlie greatest lawyer, orator, and statesman that 
 onr country has produced, woi^ld unhesitatingly 
 have pronounced the name of Daniel Webster. 
 It is by no means certain that forty years hence 
 the same answer will be returned, not because 
 there is any danger that his place can be usurped, 
 but because of the transitoriness of human fame. 
 Although Webster died less than a quarter of a 
 century ago his fame is already becoming some- 
 what traditional. No life is more worthy the 
 study of American yoiith, none more deserving 
 the review of lawyers, than his. 
 
 Webster was born among the granite hills of 
 JSTew Hampshire, in 1783. His father, a poor 
 and struggling farmer, was a man of superior 
 character and talents, who had served with dis- 
 tinguished honor under Amherst and Wolfe, and 
 through the Kevolution, and eventually became 
 a judge. Daniel, the youngest of several sons 
 inheriting the father's talents and stern virtues, 
 
308 Daniel Webstee. 
 
 was a feeble child, too weak for farm work, and 
 only fit to be sent to school. One of his brothers 
 jestingly said that his father had to send Daniel 
 to school to make him equal to the rest of the 
 family. These early opportunities were scant. 
 He relates that in his boyhood he had a pocket- 
 handkerchief, with the Federal Constitution 
 printed on it. This he then read, and he says, " I 
 have known more or less of it ever since." But 
 in 1796 Daniel was taken by his father to the 
 Exeter Academy. Here he made excellent pro- 
 gress, in every thing except declamation. He 
 himself says : " There was one thing I could not 
 do. I could not make a declamation. I could 
 not speak before the school. Many a piece did-I 
 commit to memory, and recite and rehearse in my 
 own room, over and over again ; yet when the 
 day came, when the school collected to hear dec- 
 lamations, when my name was called, and I saw 
 all eyes turned to my seat, I could not raise my- 
 self from it. Sometimes the instructors frowned, 
 sometimes they smiled. Mr. Buckminster always 
 pressed and entreated most winningly that I 
 would venture. But I never could command 
 sufficient resolution.' ' Later his father was able 
 to send him to college. " I remember," he says, 
 " the very hill which we were ascending, through 
 deep snows, in a "new England sleigh, when my 
 father made known this purpose to me. I could 
 
DAiifiEL "Webstee. 309 
 
 not speak. How could he, I thought, with so 
 large a family and in such narrow circumstances, 
 think of incurring so great an expense for me. 
 A warm glow ran all over me, and I laid, my 
 head on my father's shoulder and wept." And 
 again : " Excellent, excellent parent ! I cannot 
 think of him, even now, without turning child 
 again." His college course does not seem to 
 have heen distinguished. He says, "owing to 
 some difficulties, hmc non ineminisse juvat, I took 
 no part in the commencement exercises." After 
 graduation at Dartmouth, Daniel studied law, 
 and taught school. Among his pupils once for 
 a few weeks was Edward Everett. In 1804, he 
 studied law a few months in the office of Gov- 
 ernor Gore, at Boston. This was the turning 
 point in his life. His father, who had been 
 made one of the common plea judges, had pro- 
 cured for Daniel the clerkship of that court. 
 The salary was about fifteen hundred dollars, and 
 the judge had looked forward to it for his son. 
 It offered to Daniel a good living, and the means 
 of assisting his father, and he had made tip his 
 mind to accept it, but he was dissuaded by Mr. 
 Gore. This determination was a great disap- 
 pointment to his father, but he submitted. His 
 son's first argument was made before him, but he 
 did not live to hear another. On account of- his 
 
310 Daniel Webster. 
 
 father's age and infirmities, Webster settled near 
 liini at Boscawen. Subsequently he reiiioved to 
 Portsmouth. Hero he rose rapidly, pitted against 
 Jeremiah Mason. He says he was never junior 
 counsel more than ten or twelve times. It is 
 scarcely necessary to trace his career. Chosen to 
 Congress in 1812, his first speech took the House 
 by surprise, and Chief-Justice Marshall then pre- 
 dicted his great future. Removing to Boston he 
 became the leader of the Massachusetts Bar, and 
 of the JSTational Bar, and the greatest of Senators. 
 But althougli he was for many years the represen- 
 tative man of his country, and the most influen- 
 tial citizen of America, yet the Presidency was 
 denied him, and he lived to see it filled by such 
 men as Harrison, Tyler, Polk, Taylor and Pill- 
 more. Under two of these Presidents he served 
 as Secretary of State, and proved that the servant 
 is sometimes greater than his lord. Throughout 
 his life he was the oracle of the greatest occasions 
 in Faneuil Hall, in the Capitol, and in the 
 Supreme Court. He died in 1852, having suf- 
 fered the mortification of seeing General Scott 
 nominated for the Presidency by his party, but 
 too soon to witness his overwhelming defeat by 
 General Pierce. 
 
 Webster was not a learned lawyer in the sense 
 in which Parsons, Story, and Kent were learned 
 
• Daj^iel Webstee. 311 
 
 lawyers. He had laid solid foundations of legal 
 knowledge, but he had not built upon them so 
 loftily as these great lawyers had. No one knew 
 this better than himself. He writes : " I believe 
 the truth may be, that I have mixed up so much 
 study of polities with my study of the law, that 
 though I may have some respect for myself as 
 advocate, and some estimate of my own knowl- 
 edge of general principles, yet am not confident 
 of possessing all the accuracy and precision of 
 knowledge which the bench requires." But in 
 the analysis of human motives and the knowl- 
 edge of human nature, and in. the discussion of 
 constitutional and fundamental questions which 
 underlie governments and society, he towered 
 above every other lawyer who has lived. He 
 needed no precedents. He was an advocate who 
 made the law for which he spoke. Even such a 
 man as Marshall yielded to himJiere, and the great 
 Chief Justice's opinion in the Dartmouth Col- 
 lege case is Webster's argument reiterated. The 
 same is true of the Steamboat case, where he in- 
 oculated the court with the idea that the commerce 
 of this country is a unit. These powers gained 
 him the titles of " the great expounder," and 
 " the constitution's defender." 
 
 The oratory of Webster changed the taste of his 
 times. It created a new school of oratory, which 
 we call " Websterian." Compared with Wirt's 
 
312 Daniel Webstee. • 
 
 and Pinkney's, it is like St. Peter's church op- 
 posed to the Milan Cathedral. It has none of 
 Wirt's sentimentality, nor of Pinkney's frigid 
 classioality. Between the school that Avent out 
 with the latter orators, and that which came in 
 with Webster, there is the same difference as 
 that between a statue by Canova and an antique. 
 In the former the skeleton is perfectly concealed 
 by the softness of the integument ; in the latter 
 the anatomy is apparent underneath. Webster 
 was as incapable of " Who is Blennerhasset," and 
 the classical personification of the ship Wereide, 
 as Wirt and Pinkney were incapable of " Sink 
 or Swim," " Yenerable men," or " When my 
 eyes shall be turned to behold." The latter are 
 the greater and better. Kent wrote to Webster 
 on his address on the death of Story : " 1 admire 
 your style of address. It is stringent and terse, 
 simple and strong. It is the severe simplicity 
 and strength of Demosthenes, and not the art and 
 elegance and copia verborum of Cicero. The 
 latter was the characteristic of the speeches and 
 writings of our fi-iend Story. But yours is the 
 better model for a great political speaker." Some 
 allowance must be made for the patriotic par- 
 tiality of the American, whose blood glows and 
 whose eyes moisten at the perusal of Webster's 
 addresses. But after all due allowance, it seems 
 to us that his style was perfection, and that every 
 
Daniel Webster. 313 
 
 other orator, ancient or modern, suffers in com- 
 parison with him in this regard. We may read 
 a few passages of Demosthenes and Cicero, but 
 who can conscientiously say that he ever read an 
 entire oration of either, or ever read one twice ? 
 The same is true of all the moderns except Ers- 
 kine and Burke, who may be road over and over 
 again. Everett says : " Certainly no composi- 
 tions in the English tongue can take precedence 
 of those of Burke, in depth of thought, reach of 
 forecast, or magniiicence of style. I think, how- 
 ever, it may be said, without partiality, either 
 national or personal, that while the reader is 
 cloyed at last with the gorgeous finish of Burke's 
 diction, there is a severe simplicity and a signifi- 
 cant plainness in Webster's >vritings that never 
 tires." Of Erskine it may be said that he is more 
 theatrical and less weighty than Webster, and 
 that his taste and judgment are not so excellent. 
 Burke's imagination, Erskine's nobility, Chat- 
 ham's power, and Everett's harmony, were all 
 embi'aeed in this mighty man. There is no re- 
 cipe for a style like Webster's, but it is note- 
 worthy that he loved Saxon words, and laid it 
 down as a rule, " to use no word which does not 
 suggest an- idea, or modify some idea already 
 suggested." 
 
 Some orators are listened to with delight, some 
 40 
 
314 Dai^iel Webster. 
 
 with astonishment, and some with conviction. 
 Wirt belonged to the first class, Pinkney to the 
 second, and Webster was monarch of the last. 
 Among American orators there have been Mer- 
 curys, there have been Apollos, btit there has 
 been only one Jove. Daniel Webster occupies that 
 supreme position. In the senate, in the coui'ts, 
 and on the hustings, it was the same. It would 
 be tedious to quote th'e tributes to his magical 
 power, but in a recent pu.blication we find an "in- 
 teresting description of his manner, and its effect 
 upon one of the best critics whom our country 
 has known. Ticknor. in his Life and Letters, 
 thus describes him in the oration on Adams and 
 Jefferson : 
 
 " Mr. Webster stood forward on an open stage, alone in 
 the midst of tlie subdued multitude, and spoke without 
 hesitation, and with unmitigated power, for an hour and 
 fifty minutes, hardly once recurring to his notes, which lay 
 on the taljle behind him, and then rather to make a pause 
 than to refresh his recollections. Tlie tone of the great 
 body of the discourse was solemn and elevated, and though 
 at intervals a murmur of applause and excitement ran 
 through the crowd, it was immediately hushed by the very 
 occasion itself, and by the grave expression of the speaker's 
 countenance and manner: and all became as silent as 
 death. But at the conclusion he forsook this tone, and ad- 
 dressed the people on the responsibility that rests with the 
 present generation, as heirs to those who achieved our in- 
 dependence for us, and on the hopes and encouragements 
 we have to perform boldly and faithfully the duties that 
 have fallen upon us ; so that when he ended, the minds of 
 
Daniel "Webster. 315 
 
 men were wrouglit up to an uncontrollable excitement, and 
 then followed three tremendous cheera, inappropriate in- 
 deed to the occasion, but as inevitable as any great move- 
 ment of nature." 
 
 The same writer, speaking of the Plymouth 
 oration, says : "I was never so excited by pnblie 
 speaking before in my life. Three or four times I 
 thought my temples would bufst with the gush of 
 blood ; for after all, you must know that I am 
 aware it is no connected and compacted whole, 
 but a collection of wonderful fragments of burn- 
 ing eloquence, to which his manner gave tenfold 
 force. When I came out I was almost afraid to 
 come near to him. It seemed to me that he was 
 like the mount that might not be touched, and 
 that burned with fire. " John Adams wrote to 
 Webster on this occasion : " Mr. Burke is no 
 longer entitled to the praise — the most consum- 
 mate orator of modern times. * * * This 
 oration will be read five hundred years hence, 
 with as much rapture as it was heard. It ought 
 to be read at the end of every century, and in-- 
 deed at the end of every year, forever and ever." 
 The best description of his forensic manner is 
 found in Choate's account of his argument in 
 the Dartmouth College case : 
 
 " Mr. Webster entered on his argument in the calm tone 
 of easy and dignified conversation. His matter was so 
 completely at his command, that he scarcely looked at his 
 
316 Daniel Webstee. 
 
 brief, but went on for more tlian four hours, with a state- 
 ment so luminous, and a chain of reasoning so easy to be 
 understood, that he seemed to carry with him every man 
 of his audience, without the slightest effort or weariness 
 on either side. It was hardly eloquence in the strict sense 
 of the term — it was pure reason. Now and then, for a 
 sentence or two, his eye flashed, and his voice swelled into 
 bolder note as he uttered some emphatic thought, but he 
 instantly fell back into the tone of earnest conversation 
 which run throughout the great body of his speech." 
 
 How different this from the misplaced vehe- 
 mence of Pinkney ! It is worthy of note that 
 "Webster was thirty-six years old when he made 
 this argument ; thirty-eight when he delivered 
 the Plymouth Oration ; forty-three at the laying 
 of the corner-stone of the Bunker Hill monument ; 
 forty-four at the death of Adams and JefEerson ; 
 forty-eight at the reply to Hayne, and the Wliite 
 mnrder trial ; sixty-two at the argument of the 
 Girard will case. 
 
 Webster's presence and declamation were mag- 
 niiicent. He was certainly the most imposing 
 man of his time in his physical appearance. He 
 once proved to a friend, by playful ratiocination, 
 that he was the handsomest man in New Eng- 
 land. He said he was the handsomest man in 
 Scollay's building, the handsomest biiilding in 
 Tremont street, the handsomest avenue in Bos- 
 ton, the handsomest city in New England, ergo 
 he was the handsomest man in New England ; q. 
 
Daniel Webstek. 317 
 
 e. d. He certainly was not a handsome man ; 
 but he was tall, with a chest like a Hercules, a 
 magnificent head, with beetling brows, and cav- 
 ernous melancholy black eyes of the most search- 
 ing and significant expression. ISo other human 
 eye was ever like his ; it was the window through 
 which a superhuman soul, chained for a time 
 within a m.ortal's frame, looked out on men. 
 His mouth was sweet and mobile. Every move- 
 ment was dignified and unconstrained. His ges- 
 tures were grand and sweeping, — no petty tricks 
 or mannerism about them. His utterance was 
 deliberate and dignified. And his voice was one 
 of the noblest organs ever bestowed on an orator 
 — deep, rich, harmonious, fiexible, and of tre- 
 mendous power, capable of a great variety of ex- 
 pression, and always managed in a manly and 
 natural manner. It is singular how few of the 
 greatest orators have had good voices or graceful 
 gestures. Burke, Fox, Pitt, Pinkney, were all 
 faulty in these respects, but "Webster's manner 
 combined the energy of Chatham with the ele- 
 gance of Everett, and the mixture was better 
 than either. 
 
 It is always a curious inquiry, how much of a 
 great orator's efforts is extemporaneous ? We 
 may be sure that all the best passages in oratory 
 if not actually committed to writing beforehand, 
 
318 Daniel Wbbstee. 
 
 were the result of careful forethought and pre- 
 arrangement. Webster simply avowed that the 
 wonderful speech which he put into the mouth of 
 John Adams (and which many at the time 
 thought a quotation) was written out by him in 
 his study the day before the delivery of the ora- 
 tion. He also tells us that he composed a great 
 portion of his iirst Bunker Hill oration while ang- 
 ling waist-deep in the Marshpee river. His son, 
 Fletcher, relates an anmsing corroboration of this 
 confession. He says : 
 
 " I followed him along the stream, fisliing the holes and 
 bends which he left for me ; but after awhile began to no- 
 tice that he was not so attentive to his sport, or so earnest 
 as usiial. He would let his line run carelessly down the 
 stream, or hold his rod still while his hook was not even 
 touching the water ; omitted trying the best places under 
 the projecting roots of the pines, and seemed indeed quite 
 abstracted and uninterested in his amusement. This of 
 course caused me a good deal of wonder, and after calling 
 his attention once or twice to his hook hanging on a twig, 
 or caught in the long grass of the river, and finding that 
 after a moment's attention he relapsed again into his in- 
 difference, I quietly walked up near him, and watched. 
 He seemed to be gazing at the overhanging trees, and pres- 
 ently advancing one foot, and extending his right hand, he 
 commenced to speak, ' Venerable men,' etc." 
 
 Thus in oratory as in every thing else genius is 
 labor. The art is in not having the labor appar- 
 ent. Some oratory " smells of the lamp," but 
 such was not "Webster's. The inspiration of the 
 
Daniel Webster. 319 
 
 moment may add a new grace to the carefully 
 formed conception, jnst as excitement lends a 
 flush- to the cheek of beauty. It is the scent of 
 the rose, the prismatic flash of the diamond ; but 
 what patient forces join to make the flower and 
 the gem ! So inspiration alone will not make an 
 orator. Webster had these inspirations, as sub- 
 lime as those of the Sibyl. Thus, the apostrophe 
 to Warren, commencing, " But ah ! Him ! " was 
 probably composed while he was fishing, as his 
 son relates, but in the heat of delivery the ora- 
 tor's grammatical construction deserted him, for 
 in the midst of the passage he abandons the third 
 person, and addressing himself directly to the 
 great martyr, exclaims, " how shall I struggle 
 with the emotions that stifle the utterance of thy 
 name ! " So too the peroration of the Dartmouth 
 College argument was a very different thing in its 
 overpowering pathos from the dry and concise 
 sentences as they stand upon the printed page. 
 
 The peroration of Webster's reply to ITayne, 
 — the most celebrated passage in American ora- 
 tory, — has always been siipposed to have been 
 carefully thought out and pre-arranged, if not ac- 
 tually written beforehand. The passage, as it 
 stands in liis published works, is as follows : 
 
 " When my eyes sliall be turned to belxold for the last 
 time the sun in heaven, may I not see him shining on the 
 broken and dislionored fragments of a once glorious Union ; 
 
320 Daniel Webster. 
 
 on States dissevered, discordant, belligerent ; on a land 
 rent with civil feuds, or drenched, it may be, in fraternal 
 blood I Let this last feeble and lingering glance ratljer be- 
 hold the gorgeous ensign of the republic, now known and 
 honored throughout the earth, still full high advanced, its 
 arms and trophies streaming in their original lustre, not a 
 stripe erased or polluted, not a single star obscured, bear- 
 ing for its motto no such miserable interrogatory as " What 
 is all this worth ? " nor those other words of delusion and 
 folly, " Liberty first and Union afterward ; " but every- 
 where, spread all over in characters of living light, blazing 
 on all its ample folds, as they float oVer the sea and over 
 the land, and in every wind under the whole heavens, that 
 other sentiment, dear to every true American heart, — 
 Liberty and Union, now and forever, one and inseparable !'' 
 
 Mr. Joseph G-ales, editoi* of the National In- 
 telligencer, took a short report of the oration at 
 the time of its delivery, and from his notes Mr. 
 "Webster, it is said, prepared tlie published ver- 
 sion. Mr. Gales' version is as follows : 
 
 " When my eyes shall be turned for the last time on the 
 meridian sun, I hope I may see him shining bright upon 
 my united, free, and happy country. I hope I shall not 
 live to see his beams falling upon the dispersed fragments 
 of the structure of this once glorious Union. I liope I may 
 not see the flag of my country with its stars separated or 
 obliterated ; torn by commotions ; smoking with the blood 
 of civil war. I hope I may not see the standard raised of 
 separate States' rights, star against star, and stripe against 
 stripe ; but that the flag of the Union may keep its stars 
 and stripes corded and bound together in indissoluble ties. 
 I hope I shall not see written as its motto, first Liberty 
 and then LTnion. I hope I shall see no such delusive and 
 
Dahial Webster. * 321 
 
 deluded motto on the flag of tliat country. I hope to see 
 spread all over it, blazoned in letters of light and proudly 
 floating over land and sea, that other sentiment dear to my 
 heart, Union and liberty, now and forever, one and insep- 
 arable." 
 
 If Mr. Gales' version is reliable, it is evident 
 that the passage was extemporaneous. It is no- 
 ticeably lacking in the orator's usual finish. In- 
 deed, it sounds much more like an imperfect at- 
 tempt at reporting than the practiced utterance, 
 by a great orator, of a passage designed to be the 
 most impressive of the entire oration, and which, 
 one would suppose, not only according to his cus- 
 tom, but in view of its important office in his 
 speech, he would have written or thought out. 
 
 Although the general superiority of the pub- 
 lished version is apparent, yet in some respects 
 the version of the reporter is preferable. For 
 example, if the orator had extemporaneously 
 spoken of " the sun in heaven," it might have 
 passed muster, but it is difiicult to see why he 
 should deliberately have preferred that expression 
 to " the meridian sun." Again, the ornission of 
 the idea, " star against star and stripe againSt 
 stripe," was not judicious ; that idea is one of the 
 best in either version. " Broken fragments " is 
 tautological; "dispersed fragments" is better; 
 " dishonored fragments " alone better yet. It is 
 apparent, from the report of Mr. Gales, that the 
 words " what is all this worth ? " had no place in 
 41 
 
322 ' Daniel Webster. 
 
 the- original, and the oration would be better witb- 
 out them ; they are redundant, and Weaken the 
 efEect of the true comparison, which is between 
 " Liberty first and Union afterward," and " Lib- 
 erty and Union," etc. Again, it may be asked, 
 what "trophies" are there on the flag? As to 
 " dissevered, discordant, belligerent," they smell 
 of the lamp, but they are magnificent, and may 
 stand. Finally, the climax in both versions is 
 not properly emphasized ; the stress should be on 
 the perpetuity, not on the condition, of the Union. 
 The words describing its perpetuity should im- 
 mediately succeed the emphasized " and." Be- 
 sides, " forever " is a better word to pronounce 
 in conclusion than "inseparable." So it should 
 be, " Liberty cmid Union, one and inseparable, 
 now and forever." The greatest superiority of 
 the printed version consists in its elimination of 
 the personal pronoun, although doubtless Web- 
 ster's hearers felt at the moment that the main 
 thing after all, was what the speaker thought 
 about the subject. Webster was a superb egotist. 
 When the dissolution of the Whig party was im- 
 minent he asked, " what is to become of me ? " 
 
 If the orator had employed us to Avrite out his 
 peroration as he ought to have pronounced it, we 
 should have recorded that he said : 
 
 ' " When my eyes shall be turned for the last time on the 
 meridian sun, may I not see him shining on the dishonored 
 
Daniel Webster. ' 323 
 
 fragments of a once glorious Union ; on States dissevered, 
 , discordant, belligerent ; on a flag arrayed star against star 
 and stripe against stripe ; on a laud rent with, civil feuds, 
 or drenched, it may be, in fraternal blood 1 Let their last 
 feeble and lingering glance rather behold the gorgeous en- 
 sign of the republic, now known and honored throughout 
 the earth, still full high advanced, streaming in its original 
 lustre, not a stripe erased or polluted, nor a single star ob- 
 scured ; bearing for its motto not those words of delusion 
 and folly, " Liberty first and Union afterward ; " but, blaz- 
 ing in characters of living light on all its ample folds, aa 
 they float over the sea and over the land, and in every 
 wind under the whole heavens, that other sentiment, dear 
 to every true American heart. Liberty and Union, one and 
 inseparable, now and forever ! " 
 
 It is apparent that Webster, in the reconstruc- 
 tion of his peroration, had in mind his favorite 
 poet Milton's description of Satan's banner, in 
 the iirst; book of " Paradise Lost : " 
 
 " Til' imperial ensign, which, full high adiianc'd, 
 Shone like a meteor streaming to the wind, 
 With gems and golden lustre high emMaz'd, 
 Seraphic arms and trophies." 
 
 The employment by the orator of the words itali- 
 cised, or equivalent expressions, but a single one 
 of which was contained in the spoken peroration, 
 shows that there was an unconscious or inten- 
 tional imitation. DouBtless the passage was im- 
 proved for the reader by this infusion of Milton, 
 but whether it would have been any more effect- 
 ive upon the hearer, or whether the words ac- 
 tually spoken would seem weak to the reader if 
 
324 Daniel. Webster. 
 
 he had not been accustomed to the printed ver- 
 sion, is somewhat questionable. ' The magnificent 
 reference to the national ensign, floating in sight 
 over the dome of the Senate chamber, vsrith the 
 orator's passionate deprecation of dishonor to that 
 flag, was the prominent idea in both, and swal- 
 lowed up all mere felicities of expression. That 
 was one of the great crises of oratory, like that 
 moment of old, when the Athenians, fired by 
 Demosthenes' appeals, rose as one man and cried, 
 "let us go against Philip ! " After all, it is ideas 
 that count in oratory, and not mere words. The 
 man who has the great ideas is not so much in 
 need of words ; to the man of few or small ideas, 
 they are indispensable. 
 
 Mr. Harvey reminds us of another instance of 
 Webster's unconscious imitations of Milton. In 
 his letter to the common council of Boston, when 
 they had refused him Faneuil Hall, because they 
 had recently denied it to Wendell Phillips, he 
 says : " I shall defer my visit to Faneuil Hall, 
 the cradle of American liberty, until its doors 
 shall fiy open on golden hinges to lovers of union 
 as well as lovers of liberty." This is an unmis- 
 takable reminiscence of Milton's description of 
 the opening of the gates of heaven, — " harmo- 
 nious sound, on golden hinges moving," but Mil- 
 ton would not have been guilty of talking about 
 the doors of a cradle. 
 
Daniel "Webster. 325 
 
 "Webster's legal arguments, with a few excep- 
 tions, are very drily and briefly reported. The 
 argument in the case of People v. Knapp is 
 elaborately and satisfactorily reported, and our 
 profession will read and re-read it with constantly 
 increasing admiration. With the exception of a 
 few of Erskine's, there is nothing that will bear 
 any comparison with it. The noble argument in 
 the Grirard Will case is also adequately reported, 
 and indeed was prepared for circulation by Web- 
 ster himself, shortly after its delivery, at the re- 
 quest of many clergymen and others. But in the 
 Dartmouth College and Steamboat cases, we have 
 nothing but the dry bones, the anatomy, — perfect 
 and well articulated skeletons, to be sure, but 
 lacking the flesh, blood, and life with which the 
 master endowed them. It is almost amusing to 
 read the peroration of the Dartmouth College 
 case, as published in Webster's works, so concise, 
 so unornamented, so destitute of all personal al- 
 lusion, and then to read the same thing as thus 
 described by Choate in his Eulogy : 
 
 " TMs, sir, is my case. It is tlie case not merely of that 
 humble institution — it is the case of every eleemosynary 
 throughout our country — of all those great charities 
 founded by the piety of our ancestry to alleviate human 
 misery, and scatter blessings along the pathway of life. 
 It is more! It is in some sense the case of every man 
 among us, who has property of which he may be stripped, 
 
326 Daniel Webstee. 
 
 for the question is simply this : ' Sliall our State legisla- 
 tures he allowed to take that which is not their own, to 
 turn it from its original use, and apply it to such ends or 
 purposes as they in their discretion shall see fit 1 ' Sir, you 
 may destroy this little institution ; ii is weak; it is in your 
 hands ! I know it is one of the lesser lights in the literary 
 horizon of our country. Youlnay put it out. Bat if you 
 do so, you must carry through your work. You must ex- 
 tinguish, one after another, all those great lights of science, 
 which for more than a century have thrown their radiance 
 over our land ! It is, sir, as I "have said, a small college. 
 And yet there are those who love it." (Here the feelings 
 which he had thus far succeeded in keeping down, broke 
 forth ; his lips quivered ; his firm cheeks trembled with 
 emotion ; his eyes were filled with tears ; his voice choked, 
 and he seemed struggling simply to gain that mastery 
 over himself which might save him from an unmanly burst 
 of feeling. I will not attempt to give you the few broken 
 words of tenderness in which he went on to speak of his 
 attachment to the college ; the whole seemed to be min- 
 gled throughout with the recollections of father, mother, 
 brother, and all the trials and privations through which he 
 had made his way into life. Every one saw that it was 
 wholly unpremeditated, a pressure on his heart, which 
 sought relief in words and tears.) ' Sir, I know not how 
 others may feel,' (glancing at the opponents of the College 
 before him), 'bat for myself when I see my alma mater 
 surrounded like Caesar in the Senate House, by those who 
 are reiterating stab upon stab, I would not for this right 
 hand, have her turn to me, and say, ' et tu quoque, mi 
 
 Choate beautifully describes this memorable 
 scene, — tbe majestj', reason, and pathos of the 
 orator; the eager and tearful attention of the 
 
Missing Page 
 
Missing Page 
 
Daniel Webstee. 329 
 
 a/re in the place of ancestors." It is a curious in- 
 stance of the contrarities of human nature, that 
 "Wirt, who was all feeling and fancy, should never 
 have written poetry, Avhile Webster, who was all 
 strength, should occasionally have voiced his 
 thoughts in vei-se. The grandeur of imagination 
 flashing forth in his speeches may well lead us to 
 exclaim, how great a Milton was in Webster lost ! 
 Webster himself says : " True oratory and true 
 portry are alike in essential elements." If the 
 boy Daniel had not found that constitutional 
 handkerchief, we might have had an epic poet. 
 
 Although the dominant characteristic of Web- 
 ster's intellect was gravity, yet he was not always 
 serious. His domestic letters exhibit a playful 
 and witty spirit. He writes to his wife, " as I 
 cannot be present to kiss you all myself, I depute 
 Captain Thomas, if he should be there, or Mr. 
 Blake, or sofne other friend about my age, to per- 
 form the salutations." In speaking of the weather 
 he says : " The ice this morning was as strong as 
 Mrs.' Ronckendorf 's coffee, that is, it would bear 
 a cat. The wind blows as if old Eolus had just 
 now struck his spear through his bag in twenty 
 places." In condoling with his son. Colonel 
 ■ Webster, upon his failure to obtain some military 
 appointment, he says : " We are predestinated not 
 to be greatin the field of battle. * * * Our 
 battles are forensic ; we draw no blood but the 
 42 
 
330 Daniel "Webster. 
 
 blood of ■ ou-r clients." Speaking of some petty 
 causes which he could neither bring on nor put 
 off, he says : " They stick, like a half-drawn boot." 
 Of the duel between Mr. Jenifer and Mr. By- 
 num, he says, " they could not hit each other. Six 
 roiT-uds of bullets were discharged in tenues 
 auras." Writing of his son Edward, he says : 
 " Edward is going to be somebody, if one of the 
 Miss Bayards does not deprive him of intellect." 
 Again, he writes to the Colonel : " I must Have 
 a horse, King Kichard did not want one more." 
 Describing his efforts to get rid of visitors, he 
 says, in a strain worthy of Charles Lamb : " The 
 day before yesterday I lay on the sofa after din- 
 ner, and told John Taylor to take the great kitchen 
 tongs, stand at the door, and defend the castle. 
 When I rose, he reported that he knocked down 
 seventeen, some of whom he thought would be 
 ci'ippled for life." One very waggish letter is 
 devoted to the subject of " tripe," and . a very 
 learned one to " turkeys." In an address at 
 Rochester, he said : " Men of Eochester, I am 
 glad to see you, and I am glad to see your noble 
 city. Gentlemen, I saw your falls, which I am 
 told are one hundred and fifty feet high. That 
 is a very interesting fact. Gentlemen, Home had 
 lier Caesar, her Scipio, her Brutus ; but Rome, in 
 her proudest days, had never a waterfall one 
 hundred and fifty feet high ! Gentlemen, Greece 
 
Dajstiel "Webstee. 331 
 
 had her Pericles, her Demosthenes, and her Soc- 
 rates, but Greece, in her pahniest days, had never 
 a waterfall one hundred and fifty feet high ! Men 
 of Rochester, go on. No people ever lost their 
 liberties, who had a waterfall one hundred and 
 fifty feet high ! " 
 
 Webster's letters are full of political wisdom, 
 the most tender breathings of afi'ection, and 
 manly piety and resignation. Those addressed 
 to his farmers at Marshfield and Franklin form a 
 complete manual of farming, even to the most 
 minute directions. In one of these he scolds the 
 farmer for having suffered a steer to break his 
 leg, insisting that a harrow or some other imple- 
 ment must have been left in the barnyard, con- 
 trary to his directions, a stumbling-block for the 
 animals. He quotes "Mr. Yirgil's" Georgics 
 to his farmers. These letters were written from 
 'W"ashingtou,*where he was weighed down with 
 the cares of a nation. Among the most touch- 
 ing of his letters is one which in 1851 he ad- 
 dressed to his venerable teacher, Master Tappan. 
 
 There was in "Webster a vein of melancholy 
 that tinges all his greatest, utterances. ]S"ever 
 was this more pathetically exhibited than in what 
 he says of the changes in his birth-place : " The 
 villagers are gone ; an unknown generation walk 
 under our elms. Unknown faces meet and pass 
 me in my own paternal acres. I recognize noth- 
 
332 Danifl Webstee. 
 
 ing but the tombs ! I have no acquaintance re- 
 maining but the dead ! " But there was nothing 
 morbid in his melancholy. It was the sadness 
 of a great intelligence who sees earth fading 
 away, and faces eternity. 
 
 Instead of the obtrusive self-assertion and offen- 
 sive vanity of Erskine and Pinkney, we find in 
 Webster a magnificent self-reliance and a just esti- 
 mate of his own powers. He spoke but little of 
 himself, and his letters are singularly free from 
 egotism. In a letter to Everett he mentions the 
 argument in the Steamboat case as a " pretty 
 good one." Indeed, it is almost amazing to read 
 the dry, careless, and matter-of-fact way in which 
 he writes of his greatest efforts, as for instance, 
 the argument in the Dartmouth College case. 
 On his visit to England he made no extended ad- 
 dresses, saying, " I do not mean to transgress on 
 propriety for the sake of talking." ^uch was the 
 public faith and reliance in his abilities, that what 
 would seem boasting in another man would not 
 have seemed so in him. So, when in one of his 
 public addresses he playfully said, " the public 
 debt must be paid if I have to pay it out of my own 
 pocket," the audience saw not the man who was 
 always notoriously in debt, and for whom ' the 
 hat was passed around " regularly in State street 
 but the great statesman who coidd easily pay the 
 
Daijiel Webster. 333 
 
 iSTational debt if he chose to set about it, although 
 not literally out of his own pocket, and the jest 
 was lost. Webster related with great glee, that 
 an Englishman, on reading one of his speeches on 
 the productions of Massachusetts, invested £40,- 
 000 in Massachusetts bonds at 104, when he could 
 have got those of other leading States at 88. 
 Webster's confidence in his own powers was in- 
 deed one of his strongest characteristics. • Ticknor 
 says Webster was at his house the evening before 
 the oration on Adams and JefEerson, " entirely 
 disincumbered and careless." Everett also gives 
 us an interesting reminiscence on this point. The 
 night before Webster's reply to Hayne' in the 
 United States Senate, he had read over to Everett 
 the heads of his topics, but he seemed so unagi- 
 tated by the great occasion that Everett was 
 tempted not to think him suthciently aware of its 
 magnitude, and to " intimate to him, that what 
 he was to say the next day, would, in a foi'tnight's 
 time, be read by every grown man in the coun- 
 try." But it was soon evident that his calmness 
 was the repose of conscious power. Easy, sport- 
 ive, and full of anecdote that evening, he slept 
 soundly that night. " So," says Everett, " the 
 great Cond6 slept on the eve of the battle of 
 Eocroi ; so Alexander the Great slept on the eve 
 of the battle of Arbela ; and so they awoke to 
 'deeds of immortal fame. As I saw him in the 
 
334 Daniel Webstee. 
 
 evening (if I may borrow an illustration from 
 his favorite amusement), he "w^s unconcerned 
 and as free of spirit as some here present have 
 seen him, while floating in his fishing-boat along 
 a hazy shore, gently rocking on the tranquil tide, 
 dropping his line here and there with the vary- 
 ing fortune of the sport. The next morning he 
 M'as like some mighty Admiral, dark and terrible ; 
 casting the long shadow of his frowning tiers far 
 over the sea, that seemed to sink beneath him ; 
 his broad pennant streaming at the main, the stars 
 and the stripes at the fore, the mizzen and the 
 peak ; and bearing down like a tempest upon his 
 antagonist, with all his canvas strained to the 
 wind, and all his thunders roaring from his broad- 
 sides." Happy the mighty orator in having such 
 a Pericles to celebrate his genius ! 
 
 But this man who seemed in his moments of 
 public travail as awful and solitary as Moses on 
 the Mount, was quite another being in private 
 life — tender, affectionate, unassuming, hospitable. 
 ITecessarily much alone, he was still delighted 
 and delightful in society. He communed much 
 with nature ; in one of his letters he exclaims, 
 " Oh, Marshfield ! and the Sea, the Sea ! " Again 
 he says : "I loved this occasional solitude then, 
 and have loved it ever since, and I love it still. 
 I like to contemplate nature, and to hold cornmun- 
 nion, unbroken by the presence of human beings, ' 
 
Daniel Webstee. 335 
 
 with ' this universal frame, thus wondrous fair.' 
 And when thinTcing is to be done, one must of 
 course be alone. ISTo man knows himself who 
 does not thus sometimes keep his own company." 
 He loved the murmur of the forest, and the roar 
 of the ocean, and to lie for hours in his rocking 
 boat, revolving those grand utterances which 
 ruled the nation's councils. But except in these 
 hours "he shunned to be alone." He even liked 
 to go over the heads of his forthcoming ai-gu- 
 ment with a friend like Everett. After his great 
 Plymouth oration, says Ticknor, he was " as gay 
 and playful as a kitten." And in speaking of the 
 Adams and Jefferson oration, Ticknor says : 
 " He dined with us unceremoniously after it was 
 over, as playful as a kitten." Children loved 
 him and flocked about him — an infallible testi- 
 monial to a man's character. He was expert with 
 rod and gun. Ticknor writes to Prescott : "But 
 JMr. Webster is a keen sportsman. He was out 
 thirteen hours to-day, without any regular meal, 
 and is how as busy as a locksmith, with his guns. 
 He seems to feel as if it were the one thing need- 
 ful to kill birds, and neither to tire nor grow hun- 
 gry'' while one can be seen." His love of nature 
 is strikingly disclosed in his letters, in one of 
 which he gives the best description of Niagara, 
 and another, of sunrise and the morning, that can 
 readily be found. Another contains an exquisite 
 
336 Daniel Webstee. 
 
 description of his Louse at Marshfield. No de- 
 scriptions of natural scenery can be finer than 
 these ; not even Walter Scott's. He loved ani- 
 mals, and owned the best breeds. Shortly before 
 his death, and while dictating his will, he ordered 
 some Styrian oxen to be driven up to his window, 
 so that he might look into their great calm eyes 
 and inhale their fragrant breath. He loved agri- 
 culture, and owned and personally conducted a 
 great farm at Marshfield, and also the family 
 homestead at Franklin, ISTew Hampshire. He 
 deemed agriculture the " leading interest of so- 
 ciety," and " the great f oimdation of national pros- 
 perity." In a letter to his farmer he says, " One 
 letter about farming is worth ten u^Jon politics." 
 On his Marshfield farm he planted trees and des- 
 ignated them by the names of his beloved son 
 and daughter, gone before him, and from his 
 farm he was borne to his grave by his Marshfield 
 farmer-neighbor's, thousands of whom lined the 
 highway along which the modest procession 
 passed, all on foot ; what a contrast to the con- 
 course at Wirt's grave ! 
 
 Great as Webster was as an orator, he was still 
 greater as a man. His influence, like that of 
 Washington, was mainly due to moral qualities. 
 The man was always greater than his words, su- 
 perior to his emotions, master of the occasion. 
 The same phrases uttered on the same occasions 
 
Daniel "Webster. 337 
 
 by any other man would have produced a far in- 
 ferior efEect. The appearance of his blue coat 
 with its gilt buttons, and his buff vest, was al- 
 ways as inspiring to his friends, and as dispirit- 
 ing to his enemies, as the gray overcoat and 
 cocked hat of Napoleon. Wellington estimated 
 the presence of Napoleon on the battle-field as 
 equivalent to a re-euforcement of fifty thousand 
 troops on his side, and the moral grandeur and 
 iniiuence of Webster was similar. We look in 
 vain through the history of orators for a parallel 
 to this characteristic. Chatham who comes near- 
 est to him, and whose crutch was the terror of 
 the House of Lords, was dreaded as much for his 
 petulance as for his strength. Demosthenes died 
 the death of a suicide and coward.; Cicero was a 
 vain and weak man ; Burke erred in ridiculous 
 theatrical excesses, as for instance, the dagger 
 scene in his speech on the French Revolution ; 
 but Webster was always mighty, majestic, impe- 
 rious, seldom personal,never losing his self-control 
 nor his control of others. It must not be under- 
 stood from these remarks that Webster was irre- 
 proachable in morals. What has been said bears 
 reference only to his moral qualities, not to his 
 habits. Alas for human nature, the latter half of 
 the great man's life was sadly disfigured by the 
 excesses of his passions and appetites. The reck- 
 less habits, of society in the national capital ; the 
 43 
 
338 Daniel "Webstee. 
 
 tremendous drafts iipon Lis nervous system de- 
 manded by his public .duties, and perhaps a mo- 
 roseness born of a disappointed ambition, led him 
 into a pitiable surrender to the baser qualities of 
 our common nature. And sadder even than 
 this, as it seems to us now, since the great confla- 
 gration, in which the national crime of human 
 slavery was purged away, has purified the politi- 
 cal atmosphere, was his surrender of the pure 
 principles of his youth and early manhood to a 
 short-sighted compromise with evil. It may be 
 that jast this betrayal of human weakness Avas 
 necessary to save his countrymen from a too 
 slavish worship of him, and to remind them that 
 Daniel Webster, who seemed to them so nearly a 
 god, was after all only a man. 
 
 But all these things will be, are now indeed, 
 ahnost forgotten. In history, as in the land of 
 spirits, cleansed from "this muddy vesture of de- 
 cay," Webster will stand a god-like character. 
 He will live in his utterances upon the printed 
 page of his works, and posterity will not hear of 
 his weaknesses. Tradition and history will hand 
 down the figure of the grand patriot champion, 
 as he stood on Bunker Hill, and apostrophized 
 the spirit of Warren, and addressed the survivors 
 of the opening conflict of the Revolution ; of the 
 mighty advocate, as he depicted the pangs of a 
 
Daniel "Webster. 339 
 
 guilty conscience, or pleaded for the public 
 recognition of Christianity, or for the protec- 
 tion of our infant institiitions of learning ; 
 and of the awful and prophetic seer, as he 
 stood beneath the dome of the national senate- 
 hall, and pointing upward to the flag of our 
 country floating over his head, uttered these 
 memorable and immortal words, which no Ameri- 
 can now, nor ever can, read without an over- 
 whelming emotion. In his life of Napoleon the 
 Baron Jomini depicts the great captain, in Ely- 
 sium, conversing on his campaigns with the 
 spirits of Alexander, Caesar, and Frederick, 
 who surround him in admiring attitudes. So we 
 can imagine the spirits of Demosthenes, Cicero, 
 and Burke clustering to receive the last accession 
 of a peer to their number, and confessing, as the 
 great soldiers confessed to ISTapoleon, that " he sur- 
 passed them all. in his force of genius, and great- 
 ness of soul." But how much nobler a group 
 the latter than the former ! — patriots, statesmen 
 and champions of human liberty, rather than sel- 
 flsli destroyers of the human race and desolators 
 of the earth's fair fields. 
 
 In reading and stadying this man's life and 
 works, the profound truth of his own words is 
 felt, when he says: "Nothing in the universe 
 can ever be lost ; no mind, the emanation of the 
 Deity himself, can possibly be extinguished ; and 
 
340 Daniel Webstee. 
 
 our merciful heavenly Parent will assuredly one 
 day gather his moral and intelligent creatures to 
 himself." It must be that Daniel Webster still 
 lives ! 
 
WALWOKTH. 
 
 REUBEN HYDE WALWOETH was born 
 in 1Y88, at Bozrah, Connecticut. During 
 his boyliood his fatlier, who had served in the 
 Continental army, removed to Bensselaer county, 
 in this State. In 1810 young Walworth settled 
 at Plattsburg, where he married, practiced law, 
 and represented his district in Congress. At the 
 battle of Plattsburg, in 1814, he served as aid on 
 the staff of General Mooers, of the United States 
 army. The house in which Walworth resided at 
 Plattsburg, for many years, was occupied by the 
 British, during tbat campaign, as a hospital, and 
 still bears the marks of bullets. In 1823 he was 
 appointed circuit judge of the fourth judicial dis- 
 trict, and held that office five years. He removed 
 to Saratoga Springs in 1823, and purchased the 
 beautiful estate known as Pine Grove. In 1828 
 he was appointed Chancellor, which office he held 
 until the court was abolished in 1848. On his 
 appointment he removed to Albany, and at the 
 end of his term he returned to Saratoga, where 
 he resided until his death in 1866, 
 
342 Walwoeth. 
 
 Upon his elevation to the Chancellorship Mr. 
 Walworth delivered an address to the Bar, in 
 which it would be hard to tell whether modesty 
 or pride predominated. He observed : " In as- 
 suming the duties of this highly responsible 
 station, which at some future day would have 
 been the highest object of my ambition, permit 
 me to say that the solicitations of my too partifil 
 friends, rather than my own inclination or my 
 own judgment, have induced me to consent to 
 occupy it at this time. Brought up a farmer tUl 
 the age of seventeen, deprived of all the advan- 
 tages of a classical education, and with a very 
 limited knowledge of chancery law, I find my- 
 self, at the age of thirty-eight, suddenly and un- 
 expectedly placed at the head of the judiciary of 
 the State ; a situation which heretofore has been 
 filled by the most able and experienced members 
 of the profession." Mr. Edwards tells us that 
 Aaron Burr advised the Chancellor not to pub- 
 lish the address, " because," to use his language, 
 " if the people read this they will exclaim, ' Then 
 if you knew you were not qualified, why the 
 devil did you take the office ? ' " It seems from 
 this address that Mr. "Walworth was a sort of 
 dernier resort, for all the judges of the Supreme 
 Court had declined the honor. 
 
 Mr. Stone says of the Chanceller : 
 
Walwoeth. 34:3 
 
 " Chancellor Walworth may justly be regarded aa the 
 great artisan of our equity laws. In some sense he was the 
 Bentham of America, without the bold speculations and 
 fantastical theories which to a certain extent characterized 
 the great British jurist. What Bentham did in removing" 
 (supplying?) " defects in English jurisprudence, Walworth 
 did in renovating and simplifying, the equity laws of the 
 United States. Before his day the Court of Chancery in 
 this State was a tribunal of illy -defined powers — of uncer- 
 tain jurisdiction, in a measure subservient to the English 
 Court of Chancery in its procedure. Chancellor Walworth 
 abolished much of that subtlety, many of those prolix and 
 bewildering formalities which had their origin in the re- 
 cesses of the mediaeval ages. He reduced the practice of 
 his court to certain standing rules, which he prepared with 
 great industry. These rules greatly improved the old sys- 
 tem of equity practice, and though he has been charged 
 with thus complicating the Court of Chancery wilji ex- 
 pensive machinery, it cannot be gainsaid that with Chan- 
 cellor Walworth equity was the soul and spirit of law," 
 etc. 
 
 This is exaggerated praise. The Cliancellor 
 undoubtedly did possess an original and creative 
 mind, and did pronounce many decisions with- 
 out the aid of precedent; but it must not be for- 
 gotten that Chancellor Kent preceded him, and 
 whoever followed Kent foiind roads formed for 
 him. Kent was the true pioneer of our equity 
 law, and Walworth widened, beautified, and 
 made solid the paths which his predecessor hewed 
 out. But Walworth brought to his office a mai-- 
 velous industry, a keen intelligence, wide and 
 various learning, and an irreproachable integrity. 
 
344 Walworth. 
 
 His rare judicial qualities are exhibited in the 
 ten volumes of Paige's and the three volumes 
 of Barbour's Chancery Reports, wholly taken 
 up with his decisions, and in the decisions of 
 the Court of Errors, reported by "Wendell, Hill, 
 and Denio. In every important appeal from 
 the Supreme Court we find an opinion of the 
 chancellor. Of the learning of the Chancellor, 
 or of any judge, it is more difQc'ult to form 
 a correct idea. It is the easiest thing in the 
 world for a reservoir always to be full, unless its 
 feeders fail. So our judges often get a great 
 reputation for learning, for which they are in- 
 debted to the labored briefs of counsel. For in- 
 stance, the great research displayed in the Chan- 
 cellor's opinion in Neven v. Ladue, on the 
 question whether ale is intoxicating, — one of the 
 most learned opinions in the books — we strongly 
 suspect was the research of the counsel and not 
 of the Chancellor, for it must have been the work 
 of weeks if not months. The same is true of 
 many of the displays of legal learning, in which 
 judges frequently adopt the labors of the coun- 
 sel, even to their misquotations and other -errors. 
 Still, the Chancellor's great experience, if noth- 
 ing else, would have made him a learned lawyer. 
 His style was excellent ; his statements of facts, 
 particularly, were most admirable. Walworth 
 was a pure judge ; the breath of scandal never 
 
Walwokth. 345 
 
 obscured his fair fame for an instant, so far as we 
 have heard. The widow and orphan found in 
 hitn a sure refuge. Tliere can scarcely be any 
 dissent from Judge William Kent's tribute, 
 where he says of Walworth : " JS^o court was ever 
 under the guidance of a judge purer in character 
 or more gifted in talent than the last Chancellor 
 of New York." We have seen how distrustful 
 the Chancellor seemed of his own powers on as- 
 suming his high office. Twenty years later, 
 Murray Hoffman, in closing the argument of a 
 cause before him, thus addressed him : 
 
 " This is in all probability the last time I shall address 
 you as Chancellor of the State of New Yorlt. To one 
 whose professional life has been almost solely connected 
 with this Court, who has served in an humble sphere as one 
 of its ministers, thought of its destruction cannot but be 
 full of anxiety and regret. Apart from the prevalence of 
 pure religion, the patriot can breathe no more useful prayer 
 for Ills native State than that the future administration of 
 justice may be distinguished for intelligence, learning and 
 integrity, such as has illustrated the Court of Chancery 
 from the days of Robert E. Livingston to the present hour. 
 It must be a source of consolation to yourself, as it is of 
 gratification to your friends, that the white robe of justice 
 transmitted from the illustrious men who have gone before 
 you, has not, since it fell upon you, been soiled or rent." 
 
 There were a great many appeals from the 
 Chancellor's decisions. We have not had the pa- 
 tience to ascertain the exact number, but we find 
 that his decrees were reversed in thirty instances, 
 
346 Walwokth. 
 
 — a very large number, certainly, and as we judge 
 from cursorily turn-ihg over the leaves of Wen- 
 dell's, Hill's, and Denio's Eeports, nearly one- 
 third of the whole number of appeals. These 
 reversals include sevei'al very important cases, in- 
 cluding Costar V. Lorillard, Stewards Executors 
 V. Lisjyenard, Miller v. Gable, and Hawley v. 
 James. In several instances the reversal was 
 unanimous, and in several others thei'e were but 
 one or two dissents. The Chancellor took no 
 part in these appeals, but in appeals from the 
 Supreme Court he alwaj^s participated, and was 
 frequently in the, minority in his judgment. On 
 the other hand it must be noted that he M'as af- 
 firmed in a number of cases of prime import- 
 ance, and was frequently unanimously affirmed. 
 Of the soundness of the judgments thus appealed 
 from it is somewhat difficult to form a correct 
 opinion, because the appellate tribunal, the court 
 of errors, was not strictly a law court, but was 
 composed to some extent of laymen, and to a 
 great extent of politicians. Although there were 
 always a few lawyers of distinguished ability 
 among the State Senators, and although the Su- 
 preme Court judges sat in the court, as also did 
 the Chancelloi', yet ^ve believe the abolition of 
 the Court, by the Constitution of 1846, was gen- 
 erally regarded with approval. At best the court 
 was little better than a highly intelligent town 
 
Walwoeth. 347 
 
 meeting, and the presence of so many members 
 untrained to legal modes of thought, and unac- 
 customed to intricate statements of law and fact, 
 always detracted from the correctness and author- 
 ity of its decisions. It is perhaps not claiming 
 too much for Chancellor "Walworth to say that he 
 is at this day a greater legal authority than the 
 court of errors. With a little allowance we may 
 assent to William Kent's estimate of his judicial 
 career, when he says : " Never, perhaps, were so 
 many decisions made, where so few were inaccu- 
 rate as to facts or erroneous in law." 
 
 It is said that the Chancellor's manner's on the 
 bench were not of the pleasantest. Somewhat 
 stern, impatient of display, and marvelously rapid 
 in his own mental processes, he was often the 
 source of embarrassment to young practitioners 
 and of annoyance to old ones. Bat there was no 
 unkindness in the Chancellor's heart. Those who 
 knew him best represent him as remarkably ap- 
 proachable and affable, even affectionate, and 
 possessing a vein of humor. Tradition assures tis 
 of two queer habits which he exhibited when 
 listening to arguments, namely, drinking an enor- 
 mous quantity of water, and eating apples. The 
 latter habit reminds the writer of an incident 
 told him with great relish by the late Judge Hoge- 
 boom. He was holding oyer and terminer, at 
 which a young lawyer, who was making his debut 
 
34:8 W, 
 
 ALWOETH. 
 
 in a criminal case, incessantly sucked a lemon. 
 This annoyed the judge ; but not wishing to hurt 
 the young gentleman's feelings by speaking to 
 him publicly, he addressed him a note, suggesting 
 that unless the practice was necessary to his 
 health, it would be more in accordance with the 
 etiquette of court, to desist. " The lemon disap- 
 peared," said the judge, " but they told me af- 
 terward that it was filled with whisky." Perhaps 
 the Chancellor, who was a strictly temperate man, 
 indulged in apples in lieu of cider. 
 
 One habit of the Chancellor caused the bar a 
 great deal of annoyance, namely, his practice of 
 interrupting counsel and anticipating their points. 
 His mind was so inconceivably rapid in its oper- 
 ati«ns that he frequently saw where the arrow 
 would strike while the counsel were bending the 
 bow, and it was doubtless irksome to him to sit 
 for an hour listening or appearing to listen to the 
 formal progress of a prosy counselor, where he 
 himself had long since arrived at the destination, 
 and as it were " put up " for the night, and per- 
 haps gone to sleep. This is a hopeless expedient 
 in a judge, however, because if he strikes off one 
 of the heads of the discourse, another, or possibly 
 two others, will spring up in its place, as in the 
 case of the fabled Hydra. Experience shows that 
 it is shorter in the majority of cases to let counsel 
 have their own way. Very frequently, too, their 
 
"Walworth. 349 
 
 way is the better, although longer. A plain old 
 counselor once made his iirst appearance before 
 one of the superior courts of our State, in a case 
 of long-standing, and was plodding prosily- 
 through his statement and arguments, when he 
 was interrupted by one of those impatient judges 
 who was always anticipating counsel ; whereupon 
 the old man feelingly observed : " !N"ow, your 
 honor, I am aware that you know a great deal 
 more law than I do, but allow me to say that I 
 know a great deal more about this case than you 
 do. Why, your honor, I have lived with this 
 case for twenty years ; I have worked with it 
 and slept with it ; I know all its ins and outs ; 
 for twenty years I have digged about it and 
 dunged it ; and I really wish your honor would 
 let me go on in my poor way." He was allowed 
 to proceed. Our Chancellor once in a while 
 " caught a tartai? " when he anticipated counsel. 
 Such a one was Marcus T. Reynolds, who, having 
 suffered from his disagreeable habit, determined 
 to punish him, and so set a trap for him. In 
 commencing an argument Mr. [Reynolds " sup- 
 posed" a particular state of facts, and was slowly 
 proceeding, when the Chancellor broke in, " Ah, 
 I see, Mr. Reynolds, your point is so-and-so." 
 "No," said Mr. Reynolds, gravely, "that isn't 
 exactly it, your honor ; " and then put forward a 
 
350 Walwoeth. 
 
 still more intricate hypothesis. The Chancellor 
 looked dubious for a moment, but shortly inter- 
 rupted again, " Yes, yes, Mr. Reynolds, I see, I 
 see ; this is your idea." " Xo," said the imper- 
 turbable Keynolds again, " that isn't quite it, your 
 honor ; " and he put a third case. A third inter- 
 ruption and a third anticipation ensued, and then 
 Mr. Reynolds significantly paused, drew himself 
 up, and slowly observed, "no, your honor, that 
 isn't it, and what is more, your honor never can 
 guess until I tell you." The Chancellor's dis- 
 comfiture was only less signal than that of Cur- 
 ran's victim, whose habit of anticipation was so 
 signally rebuked by the witty lawyer. The gen- 
 tleman in question, a nobleman, had invited Cur- 
 ran, with others, to dinner, but Curran was late, 
 and when he appeared was apparently in a state 
 of great agitation. He attempted to excuse his 
 tardiness by telling the host of ^ terrible tragedy 
 of which he had just been an unwilling witness. 
 As he was passing a market, he said, he observed 
 a butcher about to kili a calf, when, just as the 
 butcher had raised his knife, his little son, a beau- 
 tiful child, ran between the knife and the calf, 
 " and oh, my God ! " said Curran, " the wretched 
 man killed — " " The child ! the child ! " shrieked 
 his lordship. " ITo, my lord," answered Curran, 
 " the calf. Tour lordship's anticipation is as usual 
 incorrect." 
 
Walwoetii. 351 
 
 The Chancellor also had an uncomfortable 
 habit of putting to counsel what Mr. John Kelly 
 would call " hypotheticated cases." The late 
 Abraham Yan Vechten once evaded the Chancel- 
 lor's hypotheses by assuring him, several times 
 over, that he was " coming to that," but closed 
 his argument without having come to it. 
 
 If a counselor wished to be eloquent before 
 the Chancellor it was the point of discretion to 
 put his fine passages, like the best troops on a re- 
 treat, in the rear; to postpone them until the 
 peroration ; for the exordium was always inter- 
 rupted by incessant questions about the details of 
 the case, until the judge was fully possessed of 
 all the facts and circumstances. 
 
 After his retirement the Chancellor acted as 
 Chamber counsel and as referee. In the latter 
 capacity he sat in the " spike case " of Burden 
 V. Corning, one of the most famous suits ever 
 waged in this country. The action was for in- 
 fringement of a patent for. " hook headed spikes ; " 
 the plaintiff had recovered judgment establishing 
 the infringement ; and it was left to the ex-chan- 
 cellor as referee to ascertain the damages. The 
 case with its collateral inquiries was in the court 
 for thirty years, and for aught we know may be 
 lingering there yet. The Chancellor's connection 
 with it gave rise to the only scandal we ever heard 
 breathed against his integrity, and probably this 
 
352 "Walworth. 
 
 arose from the extreme bitterness and violence 
 with which the litigation was carried on. The 
 plaintiff informed the writer many years ago that 
 the suit had then cost him $60,000, and he had no 
 doubt it cost the opposite party as much. The 
 principal complaint against the Chancellor was 
 that his fees were exorbitant. If our recollection 
 serves us, they amounted to some $1-J:,000, whioh 
 was nearly as much as the damages which he 
 awarded. It is not a little singular that a similar 
 complaint was once made against his predecessor in 
 office, Samuel Jones, who charged some $3,000 
 for services as arbitrator, many years ago. The 
 Chancellor deserved to be well paid for listening 
 to the recriminations of two parties, either of 
 whom would have deemed himself poorly paid if 
 he got in one year what the Chancellor received 
 for a dozen years' work. 
 
 The Chancellor employed his last days in pre- ' 
 paring a most elaborate genealogical account of 
 his ancestral family, on the maternal side, the 
 Hydes. In his pursuit he displayed all the ardor 
 and research which characterized his legal opin- 
 ions. So industrious was he in the work that one of 
 his family advised him to put up a sign on his office, 
 " Cash paid for Hydes." The work is a most ex- 
 haustive one, but we might well exchange all these 
 researches about a myriad of obscure Hydes, fpr 
 some account of the genealogist himself. The 
 
Walwokth. 353 
 
 Chancellor in obeying St. Paul's injunction to 
 Titus, to "avoid strivings about the law," should 
 have remembered the accompanying injunction 
 to " avoid genealogies." How valuable would be 
 a volume of the Chancellor's reminiscences about 
 himself and his contemporaries. Mr. Edwards 
 tells an excellent story apropos of the Chancellor's 
 pride of descent, but for its truth he does not, 
 nor will we vouch. It seems that the Chancellor 
 was once nominated by President Tyler to a place 
 on the Federal Supreme bench. Now the Chan- 
 cellor claimed descent from Lord Mayor Wal- 
 worth who struck down Wat Tyler, while the 
 President traced himself back to the great rebel. 
 The Chancellor had the Walworth arms framed 
 and hung in a conspicuous place in his house. 
 William Paxton Hallett, clerk of the Supreme 
 Court in l^ew York city, an active politician and 
 a warm friend of Judge Samuel Nelson, then of 
 our Supreme Court, called the President's atten- 
 tion to the fact that the Chancellor boasted of his 
 descent from the Walworth who had overcome 
 the President's great ancestor, and that he dis- 
 played the Walworth arms, and at the same time 
 spoke a good word for his friend Nelson. Shortly 
 afterward the Chancellor's name was withdrawn, 
 and that of Judge Nelson substituted. It would 
 seem from this story that President Tyler was 
 more sensitive about his ancestry than President 
 45 
 
354 Walwoeth. 
 
 Pierce, who, when some one asked him what his 
 family coat of arms was, replied "My father's 
 shirt sleeves at Bunker Hill." 
 
 In personal appearance the Chancellor was not 
 distinguished. He was a small, lean man, and in 
 his latter days had long, iron-gray hair and beard, 
 and looked rather haggard. His face was intel- 
 lectual, and his eye was keen. Mr. Stone tells 
 us that in his youthful days the Chancellor had 
 been a famous ju.mper, and that as late as 1835 
 he astonished Judge l^elson and sundry other 
 grave personages by leaping over the parlor chairs, 
 and challenging them to the like. He was fond 
 of riding on horseback, and was wise in the points 
 of a good horse. It was his habit early in the eve- 
 ning to play cards, diess, or backgammon with 
 his family and his guests, and then to study and 
 work all night, often until three or four o'clock. 
 He was a good story-teller and a hearty laugher. 
 In his simple and spacious house at Saratoga he 
 exercised a generous hospitality, seeking and re- 
 ceiving the distinguished persons who resorted to 
 our country's famous Spa. Mr. Stone says in his 
 "Reminiscences of Saratoga," "the Grove has 
 known the portly form of Joseph Bonaparte in 
 tights, and the squat figm-e of Mar Yohannan in 
 multitudinous folds of cloths." He never for- 
 got either faces or names, and his acquaintance 
 extended even to the family history and genealogy 
 
WaL WORTH. 355 
 
 of his guests, whom he often astonished by displays 
 of his memory in this respect. We have referred 
 to his .temperate habits; we should add that he 
 was " a tee-totaler "and president of the American 
 Temperance Union. Mr. Seward once asserted 
 that the C]jancellor and a certain celebrated states- 
 man of New York drank more brandy and water 
 than any two other men in the State. When 
 called to explain this apparent slander on the 
 Chancellor, he said the latter drank the water and 
 the other the brandy. It seems quite in keeping 
 with this fondness for cold water that he was an 
 enthusiastic fireman, distinguishing himself at the 
 great fires which have ravaged Saratoga Springs, 
 by his self-possession, intelligence, and executive 
 ability. Those who do not sympathize in the 
 Chancellor's notions about the virtues of water, 
 would perhaps take a malicious pleasure in calling 
 attention to the disease of which he died. 
 
 So much w& have been able to glean concern- 
 ing the most laborious lawyer whom our State 
 has ever known. He has passed away, and his 
 high court is among the things of the past ; but 
 the usefulness of his labors and the value of his 
 example hav.e outlived them both, and cannot be 
 overestimated. His portrait, hanging in the Capi- 
 tol, is a constant incitement and encouragement 
 to every poor and struggling young lawyer who 
 goes up there to listen to the proceedings of our 
 
356 Walworth. 
 
 highest court, reminding him that although it is 
 no longer possible for him to be Chancellor, it is 
 possible for him to be as simple, as industrious, 
 as faithful to duty, and as loyal to right, if not so 
 brilliant, learned, and" talented, as the great Chan- 
 cellor who " wore a conscience as well as a gown." 
 
EUFUS OHOATE. 
 
 IT is a curious fact that the hard, rude Puritan 
 stock implanted on the sterile and rock-bound 
 coast of New England, should have generated, 
 within half a century, four men of such original 
 and shining genius as Emerson, Hawthorne 
 Webster and Ohoate ; nien unparalleled as yet in 
 the history of our country, nay, not excelled in 
 the annals of modern times, in the i-ealms of 
 philosophy, romance, statesmanship, and forensic 
 oratory ; men whose dominant characteristic is 
 that in which the forefathers were most signally 
 deficient, — imagination. These four representa- 
 tive men, citizens of the same little common- 
 wealth, have made her glorious through all the 
 earth. It is indeed singular how imagination 
 rules the world and has ever ruled it. The poems 
 of a wandering blind old harper, a few crumbling 
 ruins, a few mutilated and battered statues, a few 
 cracked and fading canvases, a few strains of 
 music, and the traditions of a few eloquent words 
 of orators, have proved the most potent forces in 
 the world's civilization. The sway of imagina- 
 
358 KuFus Choate. 
 
 tioa is no less powerful now than of old. We 
 still visit the tomb of Shakespeare, and the house 
 of the poet laureate. We give a vase to Bryant. 
 We think of ISTew England mainly as the birth- 
 place of genius, and we dwell fondly on the names 
 which have gilded her history with an undying 
 lustre. Of these men it was the glory of Choate 
 to assert for imagination a place and power among 
 the dry facts of the law. 
 
 The incidents in Choate's life are very few. 
 Born in 1799 ; entering Dartmouth College in 
 1815 ; becoming a tutor there on graduating ; en- 
 tering on the study of his profession at the Cam- 
 bridge Law School, and passing a year in the 
 office of Wirt ; commencing practice at Danveus 
 in 1824; elected to the Legislature in 1825 ; to 
 the State Senate in 1827, and to Congress in 1832 ; 
 removing to Boston in 1884; elected to the 
 United States Senate, on Webster's retirement, in 
 1841 ; resigning that position in 1845 ; practicing 
 at the Boston bar from that time until his death 
 in 1859. This is the barren index to a most 
 fruitful life. 
 
 Choate's first appearance at the bar was the 
 signal for much laughter and ridicule. His ad- 
 vent was regarded by the lawyers and suitors of 
 his day very much as the appearance of Pegasus 
 would be received by the steady-going earth-born 
 equine race, if he should descend and assume the 
 
EtTFus Ohoatb. 359 
 
 role of a cart-horse. His ways were not as their 
 ways. His eccentricities, and liis struggles to 
 carry his burden aloft into his native element, ex- 
 cited much merriment. But soon it was found 
 that Pegasus drew his load better than any of 
 them, despite his antics and his curvetings. Men 
 soon came to acknowledge that here was a new 
 and legitimate style of advocate and of advocacy, 
 and although it proved inimitable, yet it soon se- 
 cured ungrudging admiration, and to the new- 
 comer was accorded the leadership which his 
 unique genius demanded. From then until his 
 death he was as much sovereign in the Boston 
 court-house as Webster was in Faneuil Hall. 
 
 It is no wonder that Choate's manner startled 
 the staid New England eoiirt-houses from their 
 composure. JSTothing like it was ever seen be- 
 fore, has been seen since, or will ever be seen 
 again. In its volubility and vehemence his speech 
 was more like that of an Oriental than that of a 
 " Boston man." His voice, which naturally was 
 rich, grand and melodious, he frequently urged 
 to its highest key ; he shrieked ; he raved ; he 
 tore a passion to tatters ; he swung his lists ; he 
 ran his trembling fingers through his long curling 
 locks, dripping with perspiration ; he shook his 
 head like a lion's mane ; he raised his body on 
 his toes, and brought his weight down on his 
 heels, with a force that shook the court- room ; he 
 
360 E.UFUS Choatb. 
 
 paiised for two or three seconds, threw back his 
 head, swept the jury M^ith a terrific glance, and 
 violently inhaled his breath throngh his nostrils 
 with a snufl&ng that was heard all over the conrt- 
 room ; his weird eyes glared like a maniac's ; his 
 wrinkled face assumed a hundred imnatural cor- 
 rugations ; in short, his speech tore his frame, 
 and his body was convulsed like that of the 
 Delphic priestess in her moments of inspiration. 
 All this seems very ridiculous in the description. 
 It is not singular that it sometimes excited deris- 
 ion. But derision was short-lived. Once when 
 a party to the suit in progress laughed at Choate's 
 extravagance, the advocate crushed him by ad- 
 vancing on him with a thundering " let those 
 laugh who win." Again, he checked an incipient 
 smile by making one of his potent pauses, sweep- 
 ing the room with his terrible eyes, and exclaim- 
 ing, " no one laughs ; no one laughs; such is my 
 cause, it carries all." All this time his thoughts 
 were poured forth with an unvarj'ing and incred- 
 ible A^elocity ; an orderly and coherent array of 
 felicitous and choice expressions, which none but 
 the orator could have selected and combined; 
 startUng and beautiful images ; soaring fancies ; 
 glittering wit ; soul-searching analysis ; classical 
 allusions — even Latin quotations ; ingenious il- 
 lustrations ; denunciation rarely employed, but 
 blasting where it struck ; simple and unadorned 
 
RUFUS ClIOATE. 361 
 
 pathos ; deep and subtle sympathy with nature 
 and with humanity ; — breaking down the bar- 
 riers of prejudice,' raising and enlarging the souls 
 of his auditors, illuminating their understandings, 
 and investing them for the hour with a portion 
 of the orator's own greatness. It was the very 
 abandonment and ecstacy of eloquence, the true- 
 inspired frenzy, which at long intervals, has de- 
 scended from heaven and given to the world a 
 Demosthenes or a Cicero, a Chatham or an Ers- 
 Idne, a Webster or a Choate. 
 
 Choate's personal appearance was as remarkable 
 as his oratory. Above six feet in height, with a 
 powerful chest and shoulders, a gaunt frame, 
 huge hands and feet ; a rolling, lumbering sort of 
 gait ; a bilious coifee-eolored complexion ; his 
 face deeply corrugated with profound wrinkles 
 and hollows, and seamed with powerful lines; 
 his head deep, rather than wide, and completely 
 covered with luxuriant black curly hair, scarcely 
 tinged with gray at the day of liis deatli ; mouth 
 large and lips thin and tremulous ; his eyes large, 
 deep-set, and black, with a weird, far-away ex- 
 pression in quiet, but a terrible burning intensity 
 in excitement ; — a face noticeable in a throng of 
 a thousand, with intellect looking ont at every 
 point ; — a most haggard, woe-begone, fortune- 
 telling countenance ; his person arrayed in slouch- 
 ing, ill-fitting garments, including always several 
 46 
 
362 RuFus Choate. 
 
 coats of various and indescribable hues, which he 
 doffed or donned in the progress of a cause ac- 
 cording to the amount of pers'piration which he 
 was secreting, and a cravat which has been said 
 " to meet in an indescribable tie, which seems 
 like a fortuitous concurrence of original atoms." 
 He possessed a wonderful capacity for labor and 
 study, but was a martyr to sick-headaches all his 
 life. 
 
 'No less extraordinary in style than in appear- 
 ance and manner was this phenomenal being. 
 His wild soarings were strange to an audience 
 accustomed to the majestic and regular flights of 
 Webster and the silvery utterances of Everett. 
 But the style befitted the man and the manner. 
 If we were to endeavor to describe his rhetorical 
 style in, a single word we should say it was dra- 
 matic. Formed on no model, it was original as 
 Shakespeare's, and like Shakespeare's it had glar- 
 ing faults as well as prodigious beauties. 
 
 He delighted in strong contrasts. As in Shake- 
 speare's plays kings and clowns jostle each other, 
 80 in Choate's rhetoric the homely and the mag- 
 nificent are frequently in juxtaposition. In one 
 breath we have the grotesque slang of the fore- 
 castle, and in the next some inspired idea that 
 thrills the veins and awakens strange thoughts. 
 Smiles and tears are neighbors in his speech, as 
 they are in human life. He is the Dickens of 
 
RuFus Choate. 363 
 
 advocates. In reading that awful scene where 
 Dombey contemplates suicide and is saved by the 
 daughter whom he had driven from her home, 
 we have more than once thought that no advo- 
 cate who ever lived could have equaled it, except 
 Choate. Doubtless his style lacks simplicity. 
 It is fervid, impassioned, oriental in its richness 
 and luxuriance, often exaggerated, as Dickens is 
 exaggerated, but always poetic and suggestive. 
 His vocabulary abounded in recondite and high- 
 sounding words. His imagination converted the 
 commonest objects. in to things of beauty, and de- 
 scribed the plainest acts in phrases that haunt the 
 memory. Speaking of a person hesitating to 
 commit a small offense when contemplating a 
 great crime, he said : " Is it possible to think, 
 rationally, that if a person was going to plunge 
 into a cataract below the precipice, he would be 
 over-careful not to moisten his feet with dew ? " 
 Of an improbable narration he said : " The story 
 is as unlike the truth as a pebble is unlike a star 
 — a witch's broom-stick unlike a banner-staff." 
 Of a cunning witness: "He is quick, keen, 
 knows when to hold his tongue, with the cunning 
 of a bushy-tailed fox — all's right." Of a lonely 
 place: " It was as lonely as the Desert behind 
 Algiers." Of a captain deceived in his reckon- 
 ing : " I suppose if the philanthropy of two 
 hemispheres shall find only the grave in which 
 
364 EuFos Choate. 
 
 Sir John Franklin's body has warmed a place, 
 every coxcomb clerk will pass an opinion, judging 
 by after facts, and say precisely where the error 
 in judgment was." Of an nnseaworthy vessel : 
 " The vessel after leaving the smooth water of 
 Boston harbor encountered the eternal motion of 
 the ocean, which 'has been there from creation, 
 and will be there till land and sea shall be no 
 more. She went down the harbor a painted and 
 perfidious thing, soul-freighted, but a cofRn for 
 the living, a coffin for the dead." Of a captain 
 sailing past St. Helena : " Such were his medi- 
 tations as the invisible currents of the ocean bore 
 him by the grave of Napoleon." Of a drjr- goods 
 merchant's bankruptcy he said : " So have I 
 heard that the vast possessions of Alexander the 
 conqueror crumbled away in dying dynasties, in 
 the iinequal hands of his weak heirs." In regard 
 to the people of Danvers, several miles from a 
 railroad, he said : " Her people are just near 
 enough to hear ihe whistle of the locomotive, and 
 gaze at the sparks of that flying giant ; yet for all 
 practical purposes they might as well stand under 
 the sky at midnight, gazing at a firmament of fall- 
 ing meteors." When Choate essayed the pathetic 
 he was always simple. There is no more beauti- 
 ful instance of this than his remarks on Webster's 
 love of New England : " He loved New Hamp- 
 shire — that old granite world — the crystal hills, 
 
EuFus Choate. 365 
 
 gray and cloud-topped ; the river, whose murmur 
 lulled his cradle ; the old hearthstone ; the grave 
 of father and mother. He loved Massachusetts, 
 which adopted and honored him — that sounding 
 sea-shore, that charmed elm-tree seat, that re- 
 claimed farm, that choice herd, that smell of 
 earth, that dear libi'ary, those dearer friends ; biit 
 the ' sphere of his duties was his true country. ' " 
 Of the magnificence of his style and the nobility 
 of his sentiments a passage from one of his Con- 
 gressional speeches will furnish an example. He 
 was resenting the charge that Americans hate 
 Great Britain : 
 
 " No, sir, we are above all this ! Let the Highland clans- 
 man, half naked, half civilized, half blinded by the peat 
 smoke of his cavern, have hia hereditary enemy and his 
 hereditary enmity, and keep the keen, deep, precious ha- 
 tred, set on fire of hell, alive if he can; let the North 
 American Indian have his, and hand it down from father 
 to son, by Heaven knows what symbols of alligators, and 
 rattlesnakes, and war-clubs smeared with vermilion and 
 entwined with scarlet ; let such a country as Poland, — 
 cloven to the earth, the armed heel on tlie radiant forehead 
 the body dead, her soul incapable to die, — let her remem- 
 ber the wrongs of days long past ; let the lost and wander- 
 ing tribes of Israel remember theirs — the manliness and 
 sympathy of the world may allow, or pardon this to them . 
 but" shall America, young, free, and prosperous, just setting 
 out on the highway of heaven, ' decorating and cheering 
 the elevated sphere she just begins to move in, glittering 
 like the morning star, full of life and joy,' — shall she be 
 supposed to be polluting and corroding her noble and 
 
366 RuFus Ghoate. 
 
 happ7 heart, by moping over old storie^of stamp-act, and 
 tea-tax, and the firing of tlie Leopard on the Chesapeake, 
 in time of peace ? No, sir ; no, sir ; a thousand times no ! 
 We look on England as we look on France. We look on 
 them from our new world, — not unrenowned, yef a new 
 world still, — and the blood mounts to our cheeks, our eyes 
 swim, our voices are stifled with the consciousness of so 
 much glory ; their trophies will not let us sleep ; but there 
 is no hatred at all — no hatred ; all for honor, nothing for 
 hate 1 We have, we can have, no barbarian memory of 
 wrongs, for which brave men have made the last expiation 
 to the brave." 
 
 Choate was famous for his long sentences. So 
 long are some of them that they may fairly be 
 described as sentences for life. Other orators 
 have used long sentences, but all others in com- 
 parison with Choate's are as time to eternity. In 
 spite of their length they are rarely involved, and 
 seldom contain a superflnous or misplaced word. 
 He was fond of using one of these sentences in 
 his exordium, in order to present to his audience 
 in one unbroken statement liis theory and pur- 
 poses. He employed them also at intervals in his 
 discourse with great effect to emphasize some 
 favorite idea and fortify some position. In liis 
 Eulogy on Webster two wonderful examples of 
 this peculiarity may be found. One is a sentence 
 of two octavo pages, descriptive of Webster's ef- 
 forts in the Knapp murder trial; the other is 
 three pages long, and presents a view of Web- 
 ster's entire public life and services. These are 
 
EuFus Choate. 367 
 
 masterly rhetorical embellisliments, but they are 
 carefully prepared for a set occasion. In his ex- 
 ordium at the trial of the Eev. Mr. Gillespie we 
 ■find one, evidently extemporaneous, presenting 
 to the jury a summary of the facts as claimed by 
 his client, and illustrating the power and felicity 
 of the advocate in this regard. As this is one of 
 his shorter sentences we give it entire : 
 
 ''If tlie story wliicli lie tells now, and has always told 
 from tlie beghinlng, be true ; if coining from the agreeable 
 and improving society of brothers and fathers who loved 
 him and love him still, going to make a sick call on one 
 dangerously ill ; if perhaps already marked as the victim of 
 that terrible complaint of the lungs, and being carefully 
 muffled, he is seeking to improve his spirits and his health 
 by the enjoyment of that blessed and refining autumnal 
 evening, yet knowing he shall be in season for the per- 
 formance of his duty, walking rapidly, his mind abstracted 
 and engaged in such contemplations as would be expected 
 of such a man as you are told lie is, under such circumstan- 
 ces ; his cap drawn down over his eyes, so that Mrs. Towle 
 could not see his face, as she tells you, walking on a nar- 
 row sidewalk, at that spot three and a half feet wide, mak- 
 ing a deflection to avoid those steps which his eye caught 
 as lie reached them ; if he then accidently came in contact 
 with the wife of Mr. Towle ; if the accident was misunder- 
 stood ; the wife misconstrued it ; the husband did not see 
 it ; if the husband, adopting his wife's impressions, re- 
 proached and abused him, as I do not blame Towle if he 
 did, upon this misconstruction ; if he promptly denied any 
 insult, and assured them it was all an utter mistake ; if 
 Towle then rudely pressed upon him and refused to re- 
 ceive his explanation ; if he then contracted a suspicion, 
 judging from the way they were walking, and from the 
 
368 KuFus Choate. 
 
 style in which he, innocent as he knew himself, was ad- 
 dressed, that they were no better than they should be ; if 
 he then said she was no lady, or no wife ; thus stung by 
 abuse and off his guard at the moment of so unexpected a 
 charge, if he then said that only word which I regret in the 
 case, if a violent blow immediately followed it, and per- 
 haps another al; the same instant ; if he fell from the side- 
 walk or was hurled across the street ; if Towle called out 
 ' stop the rascal, he has insulted my wife,' and he, as he 
 was reaching the opposite sidewalk; was met by those 
 three young men, with feet like those of elephants, and 
 fists like the paws of lions, knocked back again into the 
 street, prostrate, and was then assailed by those unmanly 
 kicks, such kicks and blows with fists and feet as you, Mr. 
 Foreman, or any of you gentlemen, would not undergo, nor 
 have any friend you love undergo, for moneys numbered ; 
 if escaped from this ordeal, and running for his life al- 
 most, bathed in his own blood, confused and excited, he is 
 collared by the watchman, carried to the watch-house and 
 jail, and left to pass the night there without the refresh- 
 ment of the cup of water not denied to the condemned 
 criminal ; he is carried the next day to the Police Court, 
 and then the ten thousand arrows of ten thousand libels 
 are instantly launched f^t him ; libels agonizing enough to 
 any man, a thousand times more so to a clergyman, and he 
 comparatively a stranger; if with all this he is innocent, I 
 have known no case demanding warmer or sadder sym- 
 pathies than his." 
 
 But he well know when to employ these pon- 
 derons sentences. Everett says of him : 
 
 " There is nothing of the artificial Johnsonian balance in 
 his style. It is as often marked by a pregnant brevity as 
 by a sonorous amplitude. He is sometimes satisfied, in 
 concise epigrammatic clauses, to skirmish with his light 
 
Btjfus Choate. 369 
 
 troops and drive in tlie enemy's outposts. It is only on 
 fitting occasions, when great principles are to be vindica- 
 ted and solemn truths told, when some moral or political 
 Waterloo or Solferino is to be fought, that he puts on the 
 entire panoply of his gorgeous rhetoric. It is then that 
 hi.s majestic sentences swell to the dimensions of his 
 thought, — that yon hear afar off the awful roar of his rifled 
 ordnance, and — when he has stoned the heights and broken 
 the center and trampled the squares and turned the stag- 
 gering wing of his adversary, — that he sounds his imperial 
 clarion along the whole line of battle, and moves forward 
 with all his hosts in one overwhelming charge." 
 
 Of Choate's wit a volume might he compiled. 
 The sum of all the wit of all other American ad- 
 vocates could not exceed his, and in quality it 
 was always Attic. A few examples must answer. 
 In reply to counsel who said his client did not 
 come by his patent naturally, he exclaimed: 
 " Naturally ! we don't do any thing naturally. 
 Why, naturally, a man would walk down Wash- 
 ington street with his pantaloons off." Of the 
 indefinite boundary line between Rhode Island 
 and Massachusetts he said : " It is like starting 
 at a bush, thence to a blue-jay, thence to a hive 
 of bees in swarming time, thence to three hun- 
 dred foxes with fire brands in their tails." In a 
 divorce case : " They were playful, gentlemen of 
 the juiy, not guilty. After the morning toil they 
 sat down on the haymow for refreshment, not 
 crime. There may have been a little youthful 
 fondling, — playful, not amorous. They only 
 47 
 
3Y0 EuFus Choate. 
 
 wished to mitigate the austerities of haj'-making." 
 Of a party in suit: "Why don't he pay back 
 the moneys he has ill-got ? He is so much of a 
 villain that he wouldn't if he could, and so much 
 of a bankrupt that he couldn't if he would." 
 Colonel Rice, a witness, describing a collision be- 
 tween a horse and wagon, and a railroad train, 
 he said, " the horse stopped — the horse thought 
 — " ""Wait a moment," said Choate; "your 
 honor. Homer tells us in the Iliad of the dogs' 
 dreams, but I prefer better authority than Col- 
 onel Rice's for the horse's thoughts." Reading 
 in a Peace newspaper, "Christian soldier! why 
 do you bear that instrument of death against your 
 shoulder ? " he exclaimed, " Why, he does it be- 
 cause the statute prescribes it." Of a very 
 crooked flight of stairs he said : " How drunk a 
 man must be to climb those stairs ! " Of one of 
 his female clients he said : " She is a sinner — 
 no, not a sinner, for she is our client ; but she is 
 a very disagreeable saint ! " He defined the law- 
 yer's " vacation " as " the space between the ques- 
 tion put to a witness and his answer." Of the 
 homely Chief Justice Shaw, " I venerate him as 
 the Indian does his log, curiously carved ; I ac- 
 Icnowledge he's ugly, but I feel that hie is great." 
 Of tlie constable who repeated the word " hav- 
 iiig " many times in his return, " He has greatly 
 overworked the participle." 
 
EuFus Choate. 371 
 
 Choate was a master of the playful anti-climax. 
 In a case where he defended a sea captain against 
 a charge of giving his crew bad and insufficient 
 food, there was an amusing instance of this. 
 One of the sailors testified that on Sunday they 
 had "duff," or flour pudding and molasses; on 
 Tuesday, " dundy-funk," or mince-meat and pota- 
 toes ; on Thursday, " lob-scouse," or a stew. It 
 also appeared that they put iu at the Cape de 
 Yerds and procured a large supply of squashes, 
 and only a dozen onions, w'hich the captain dis- 
 tributed to the crew, retaining one onion for 
 himself. Out of this Choate constructed the 
 following : " It is in evidence, gentlemen of the 
 jury, that we had duff on Sunday, dundy-funk 
 on Tuesday, and on Thursday that delicious 
 compound, lob-scouse. And not only did the 
 captain furnish an abundant supply of that 
 esculent and succulent vegetable of the tropics, 
 the squash, but with his own hand, — aye, with 
 his own paternal hand, — he divided the onions 
 among that ungrateful and rebellious crew ! " Of 
 an absent witness he said : " Was he ill or in 
 custody ? Was he in Europe, Asia, or Africa ? 
 Was he on the Eed Sea, or the Yellow Sea, or 
 the Black Sea, or the Mediterranean Sea ? Was 
 he at Land's End or John O'Groat's house ? 
 Was he with the Commissioners on our north- 
 eastern boundary, drawing and defining that 
 
372 RoFus Choate. 
 
 much vexed boundary-line? Or was he with 
 General Taylor and his army at Chihuahua, or 
 wherever the fleeting south-western boundary 
 line of our country may at this present moment 
 be? Wo, gentlemen, he was at none of these 
 places (comparatively easy of access), but he was 
 at that more remote, more inaccessible region, 
 whence so few travelers return — Koxbury." 
 Nothing can be more exquisite than this hadinage 
 in his peroration in a hotly-contested railroad 
 case : " My friends, the president and directors 
 of the Boston and Worcester Railroad, honorable 
 and high-minded men as I know them to be, have 
 probably considered that they should not be 
 justified in paying to the plaintiff the large sum 
 of money claimed in this case without the pro- 
 tection of a judgment in a suit at law ; but 1 
 have no doubt, gentlemen, if you establish the 
 liability, every one of them would lay his hand 
 on his heart and say, ' give her all she asks and 
 God bless her ! ' " 
 
 If Choate had a bad case — and his cases in 
 his later life were generally difiicult, not to say 
 desperate ; — if the facts were too earthy and 
 stubborn, and every thing seemed insuperable ; 
 then it was that he displayed his greatest art, and 
 brought into requisition all the resom-ces of his 
 genius. Gently and insensibly he would entice 
 the jury into his serial carriage ; gently and 
 
EuFus Choate. 373 
 
 insensibly he would lift them up from earth and 
 its hard facts, into a rarified and glittering region 
 of his own, whence they could look down upon 
 the globe which they had left as a very little and 
 far-off thing, and where the magician could make 
 for them new laws, new reasons, new facts, new 
 motives, new considerations of his own,- and 
 cause them not to regret and even to forget tlie 
 world which they had left. Thus it was, when 
 some one asked Choate how he was going to 
 avoid the force of some very ugly fact, and how he 
 expected to shut the eyes of the jury to it, that 
 he replied, " why, sir, I shall jump them right 
 over it." It was vain for any one to try to resist 
 his influence at these moments. His ascent 
 created a vacuum into which every one was swept, 
 the spectators, the bar, sometimes the judge. In 
 vain the grave Chief Justice snatched at the drag- 
 rope to draw him down to earth ; the orator had 
 drawn it up after him.. But all this time the 
 advocate preserved his connection with the solid 
 globe by a slender and invisible thread, which 
 prevented his soaring off into irreclaimable 
 wandering, and by which he gently and soberly 
 regained his footing on the earth. And after his 
 descent every thing went on again regularly and 
 in the accustomed manner, and his plainness, 
 sobriety and shrewd matter-of-fact manner re- 
 stored the jury to their accustomed • sphere of 
 
374 RuFus Choate. 
 
 thoughts, and made them believe that what he 
 had showed them above was part of the normal 
 routine of life. In these moments Choate was 
 unapproachable. Men might sneer at him before, 
 and doubt about him afterward, but in the 
 moment he was supreme. When we recall these 
 triumphs, we may ask with Choate jipon Kos- 
 suth : " When shall we be quite certain again 
 that the lyre of Orpheus did not kindle the sav- 
 age native to a transient discourse of reason, — 
 did not suspend the labors and charm the pains 
 of the damned, — did not lay the keeper of the 
 grave asleep, and win back Eurydice from the 
 world beyond the river, to the warm, upper air ! " 
 Choate was solidly grounded in the law. His 
 legal knowledge was extensive and accurate. He 
 did not only rely upon a few useful principles 
 picked up at the outset, or gleaned by the way in 
 the course of an active career, as is often the case 
 with men of quick comprehensions and ready 
 tongues, but he had studied law deeply and sedu- 
 lously. He continued to read law, in the element- 
 ary writers and in the current , reports, daily all 
 through his life, as his jotirnals disclose. He w^s 
 a model law-student in industry and in method. 
 He read the reports, pen in hand, frequently 
 making a brief on each side and writing out a de- 
 cision for himself, and then comparing them with 
 the arguments and decision in the case. He could 
 
RuFus Choate. 375 
 
 argue a law-point as learnedly, as logically, and as 
 unadornedly as any Dryasdust of our profession. 
 Indeed his power of reasoning closely and con- 
 secutively was almost as wonderful as his orator- 
 ical and rhetorical gifts. His constitutional ar- 
 guments and his Congressional speeches demon- 
 strate this. Mr. Parker, in his excellent Kemin- 
 iscences of Choate, felicitously observes on this 
 point : " In his wildest and most far-fetched ex- 
 cursion for analogies, his flight soars from such a 
 massive ground-work, that though the adversary 
 smile, he must also shake ; ]ust as the gala decor- 
 ations of the heavy sides of a three-decker mantle 
 in bright bunting her grim batteries.; but through 
 flowers and through ribbons we see all the time 
 those terrible, death-dealing, powder-stained muz- 
 zles still there." ■ 
 
 In addition to the more showy accomplishments 
 of the advocate, Choate possessed' unfailing tact, 
 imperturbable self-possession, superb courage, 
 steadfast self-reliance, and chivalric courtesy. ' In 
 the difficult art of eliciting evidence he was most 
 admirable. No cattse ever s'eelhed desperate ; his 
 courage and'spirits rose with difficulties ; like' the 
 American army in' Mexico, he never knew when 
 he was beaten. How suddenly and quietly would 
 he change front in presence of the enemy ! Jfbth- 
 ina: ever threw him off his balance. Iri'his cour- 
 age and self-possession he was unlike many 
 
376 KuFcrs Choate. 
 
 aggressive advocates, vfho are apt to lose heart if 
 their first onset fails. He never lost his temper, 
 but in all the strifes and anxieties of a strenuous 
 rivalry he preserved his sweetness and kindness. 
 His brethren, especially the young men, of the 
 bar. cherished for him the same affection which 
 smoothed Erskine's career. In a word, it may be 
 said of Choate, with a close approximation to 
 truth, that he never committed a fault, either of 
 head or heart, in the trial of a cause. Two other 
 points must be noted — his wonderful memory 
 and his solid common sense. He remembered 
 every thing, even to the smallest details and ex- 
 actest shades of evidence, and in all his efforts 
 there was a basis of shrewd, every-day Yankee 
 common sense, which he never stepped away 
 from, even in his wildest and most extravagant 
 moments. 
 
 Choate was a great worker with the pen. He 
 took notes in his trials most assiduously, and al- 
 ways spoke from a great pile of manuscript, cov- 
 ered with his cabalistic writing, which fell like 
 leaves upon the floor as he proceeded. His finest 
 passages he wrought but with the pen whenever 
 ho could, to fix them in his mind, — not to read.. 
 The night before a summing-up he would some- 
 times write all night. This practice accounts for 
 the artistic perfection of his longest sentences. 
 He always studied pen in hand, and always stand- 
 
EuFus Choate. 377 
 
 ing or partly supported by a high chair at a high 
 desk. Another means of discipline was his habit 
 of translating. A most accomplished classical 
 scholar, not a day of his life passed without his 
 reading at least a few lines of Greek, Latin, and 
 French. The admirable translations from Thucy- 
 dides and Tacitus published in his works attest 
 his skill and industry in this regard. He was also 
 a great general reader, pursuing regular courses 
 of classical and elegant reading, and devouring 
 all current literature. This he kept up even in 
 Congress, and when traveling abroad. One entry 
 in his journal at this period will furnish evidence 
 on this point : " My readings have been pretty 
 regular and almost systematic. Phillipp's Evi- 
 dence, with notes, Johnson, The Tatler, The 
 Whig Examiner, and Milton in the morning — 
 some thoughts on the Smithsonian Fund, and one 
 or two other Senatorial matters in the forenoon, 
 and the Odyssey, Thucydides in Bloomfield, 
 Hobbes, and Arnold, Demosthenes for the Crown, 
 Tacitus, Juvenal,- and Horace de Arte Poet, with 
 Dacier and Hurd. For the rest I have read Jef- 
 frey's contributions to the Review, and have 
 plunged into a pretty wide and most unsatisfac- 
 tory course of inquiry concerning the Pelasgi, 
 and the origin of Greek culture, and the Greek 
 mind. Upon this jubject let me set down a few 
 thoughts." He was an enthusiast upon Cicero 
 48 
 
378 EuFTJs Choate. 
 
 and Burke, whom he knew almost by heart. He 
 accumiilated a fine miscellaneous library of seven 
 thousand volumes, in which he spent some hours 
 every day or night. He had traveled abroad, and 
 his journals are full of suggestive and graphic 
 reminiscences of his wanderings. 
 
 Of Choate's marvelous law speeches we have 
 nothing but fragments — shining and beautiful, 
 to be sure, but still only fragments, which we re- 
 gard, as admiringly and as sadly as we might a 
 few marble chips, remnant of an antique statue. 
 His Congressional, literary, and occasional speeches 
 are preserved in two volumes, and are charming 
 reading. His Eulogy on Webster is the finest ever 
 pronounced on any man, and his addresses on The 
 Conservative Force of the American Bar, Elo- 
 quence of Revolutionary Periods, The Judicial 
 Tenure, and those on JSTew England history and 
 civilization are mines of precious aiid beaiitiful 
 wisdom. In the last particularly his ardent patri- 
 otism and his pure and lofty political ideas illumi- 
 nate every page, and thrill the soul of every man 
 who loves his country, like the ' utterances of 
 Webster himself. It was after listening to one 
 of these speeches that the great master Everett 
 said : '" I was unwillihg to believe that the noble 
 strain, by turns nielting, persuasive, and sublime, 
 had ended. The music of th,e voice still dwelt 
 upon my ear; the lofty train of thought elevated 
 
EuFTJs Choate. 3Y9 
 
 and braced my understanding ; the generous sen- 
 timents filled my bosom with delight, as the 
 peal of a magnificent organ, touched by the mas- 
 ter's hand, thrills the nerves with rapture and 
 causes even the vaulted roof to vibrate in unison. 
 The charmed silence seemed for a while to prolong 
 the charming strain, and it was some moments 
 before I was willing to admit that the stops were 
 closed and the keys hushed." 
 
 The traits of Choate's private character were 
 such as the biographer loves, to dwell upon. His 
 accessibility ; his simplicity ; his playfulness ; his 
 charitableness ; his contempt for gain ; his strong 
 domestic attachments ; his fondness for music ; his 
 passionate love of the ocean ; his wonderful con- 
 versational powers ;, his, amusing , carelessness 
 about money and his ignorance of . accounts ; the 
 innocent pui-ity of his life ; his religious nature ; 
 — all these are things of which much has been 
 written, and of which too much cannot be said. 
 
 The best tribute to Choate's genius is the testi- 
 mony of his brethren at the bar. 'His influence 
 over them was : omnipotent.,. -Lawyers are not 
 critical and Cold listeners ; they surrender them- 
 selves as irekdily and unreservedly as any others 
 to ' the spell of oratory ; they feel more deeply 
 than any others the power of their brethren. So 
 Loring, in a sentence worthy of Ohoate himself, 
 said : 
 
380 EuFus Choate. 
 
 "His remembrance of every fact, suggestion, or implica- 
 tion involved in the testimony, of even the remotest admis- 
 sion by liis adversary, — his ready knowledge and applica- 
 tion of every principle of law called for at the moment, — 
 his long forecast and ever watchful attention to every new 
 phase of the case, however slight, — his incredible power 
 of clear and brilliant illustration, — his unexampled ex- 
 uberance of rich and glowing language, — his wonderfully 
 methodic arrangement, where method would best serve 
 him, and no less wonderful power of confusion and dis- 
 location of forces where method would not serve him — 
 his incredible ingenuity in retreating when seemingly 
 annihilated, and the suddenness and impetuosity, with 
 which, changing front, he returned to the charge, or rallied 
 in another and unexpected direction, — and the brilliant 
 fancy, the peerless purity, and fascinating glow of lan- 
 guage and sentiment, with which, when law, and facts, 
 and arguments were all against him, he could raise his 
 audience above them all as things of earth, while insensi- 
 bly persuading it that the decision should rest upon con- 
 siderations to be found in higher regions, and that a ver- 
 dict in his favor was demanded by some transcendent 
 equity independent of them all ; at times surpassed all 
 previous conceptions of human ability." 
 
 So Dana said : 
 
 " In his presence I felt like the master of a small coast- 
 ing vessel, that hugs the shore, that has run up under the 
 lee to speak a great homeward-bound Indiaman, freighted 
 with silks and precious stones, spices and costly fabrics, 
 with sky-sails and studding-sails spread to the breeze, with 
 the nation's flag at her masthead, navigated by the myste- 
 rious science of the fixed stars, and not unprepared with 
 weapons of defense, her decks peopled with men in strange 
 costumes, speaking of strange climes and distant lands." 
 
EuFus Choate. 381 
 
 So too Sprague : 
 
 " I believe him to liave been the most accomplished ad- 
 vocate that this country has produced. * * * His 
 matter, manner, and diction, created such interest and 
 pleasure in what was uttered, and such expectation of 
 new and striking thoughts and expressions to come, that 
 attention could not be withdrawn. With a memory stored 
 with the choicest literature of our own and other langua- 
 ges, and a strong, vivid , and prolific imagination, his argu- 
 ment was rarely decked with flowers. It presented rather 
 the grave and gorgeous foliage of our resplendent autumn 
 forest, infinite in richness and variety, but from which we 
 should hardly be willing to spare a leaf or a tint. Such 
 was his genius, his opulence of thought and intenseness of 
 expression, that we involuntarily speak of him in un- 
 measured and unqualified terms." 
 
 What must that oratory have been the very 
 memory of which could make his brethren so 
 eloquent ! Above all, Webster, the great oracle, 
 said, "Choate is a wonderful man — a marvel." 
 Our bar will probably never hear another Choate. 
 Such genius appears only at long interval's. But 
 if in the coarse of time the man should arise, the 
 occasion will have passed away. Indeed it has 
 already passed away. The day of elaborate for- 
 ensic oratory is over. The clamorous spirit of 
 trade has usurped our courts. Adam is now so 
 busy that he has no time to heed the voice of 
 the archangel in his ear. What would a Pink- 
 ney or a Choate do under the wet blanket of the 
 one-hour rule ? What toleration would their ex- 
 Tianstivfi efforts meet, from courts and iuries of 
 
382 KuFus Choate. 
 
 this day, when our calendars are overcrowded, 
 and citizens are impatient to be at their business 
 and in haste to be rich ? But it is good to recur 
 to these great men and to study their characters 
 and methods. Their lives exhort us to the same 
 useful and tireless labor which made them great, 
 and inspire us with fresh love for our profession, 
 which they so ardently loved, and of which 
 Choate himself, so richly cultured and so diversely 
 learned, said, " there is nothing else in the 
 world to like." "When Choate lay dying, in a 
 room where his bed commanded a view of the 
 ocean, he said to his attendants : " If a schooner 
 or sloop goes by, don't disturb me; but if there 
 is a square-i'igged vessel, wake me up." So we 
 may well let a thousand common lives go by, un- 
 heeded, but how alert should we be to a life like 
 Choate's ! As we contemplate the life of this in- 
 spired orator and patriot, we may exclaim, adapt- 
 ing his own words in which he breathed his aspi- 
 rations for one more glimpse of the departed 
 Webster : " Oh, for one hour of Choate now ! 
 One more roll of that thunder inimitable ! One 
 more peal of that clarion ! One more throb of 
 American feeling ! "