LORD CAMPBELL'S LIVES OF THE CHIEF JUSTICES. * THE Judges of
England, as we remarked in noticing Mr. Foss's first and second volumes, are not so favourable a subject as the Chancellors, from the less striking and generally speaking the more respectable characters of the men. Lord Campbell, by confining himself to the Chief Justices, has thrown aside many obscure and uninteresting personages, (though in an antiquarian view at the expense of completeness,) while he has also selected the most remarkable of the genus Judge. Some of the greatest eminence, however, have already been noticed in his former work, as they filled the post of Chief Justice before arriving at that of Chancellor; three of the most memorable of those who did not become Chancellors—Coke, Hale, and Mansfield—are well known from various biographies, several of which are of a very modern date. In the earlier period from the Con- quest to the end of the reign of Henry the Third, Lord Campbell's rapid and superficial mode of composition is brought into inevitable comparison with the learned and exhaustive work of Mr. Foss.
The proverbial effect of a continuation is apparent in the Lives of the Chicf Justices, and the cause of that effect more visible than it some- times is. A degree of baste or carelessness is perceptible both in the matter and the manner. The earlier periods are often jejune ; and though this may in part be ascribed to lack of documents, yet when we see what antiquarians like Nicolas and Foss have done for times equally remote, we are inclined to attribute much of it to want of research. A disposition to get up the story in the readiest way, and to put all authorities too much upon a par, is also visible. The fault, frequently noticed in the Lives of the Chancellors, of substituting conjectures or fancies, or the possibilities of the ease, for the evidence of books or documents, is more glaring in the work before us ; and the bad habit of rarely quoting authorities is indulged in to a greater extent. Neither is the fullest use made of the opportunities of the subject. The lives of the Judges, or of the Chief Justices of England, by a selection of the leading cases, would incidentally furnish a very good and agreeable pr6cis of history of the law, as well as pictures of society. Lord Campbell opens this vein, but does not properly work it; and there are several topics that he touches and leaves in like manner : a peculiarity for which one is at a loss to account. He is not likely to have tired of his subject, and still less of his labour ; for he is a man of immense power of work. He may not, however, have been accustomed to the patient and ever-recurring labour of the historian, who must slowly accumulate and thoroughly digest his materials, delaying the final execution till the whole is shaped and settled in his mind, while even then he must exercise the " labor limo" with painstaking judgment. To work of this kind, many law- yers, however laborious they may be, are perhaps unequal. They like to realize their labour in something tangible—to see a good day's work, as well as do one. It is also possible that Lord Campbell may have had literary reasons for wishing to get his book quickly into the market. In spite of all its faults,—and they are so numerous, we suspect, as to deprive it of much chance of permanent endurance,—Lord Campbell's Lives of the Chief Justices is by no means an unattractive book. A vast field of legal and biographical ground is gone over ; rapidly, super- ficially, and at times carelessly, but the salient features have been seized, and strikingly if coarsely or somewhat imperfectly presented. Sometimes the principal traits of a man and his career are condensed in clear and vigorous sentences; at times tedious necessary minuthe are thrown Over with an allusion ; history, politics, and the writer's opinions there- upon are introduced, not always with logical bearing or in the best taste, but always readable ; judgments or charges from the bench, speeches in Parliament, quotations from the State Trials, or (more sparingly) from the literature of the day, are freely thrown into the narrative; and the whole is animated by a spirit which sustains the attention of the reader. sconfinudseries oflives,asa history ofthepursuit were theworkis
de • ctive; in a literary point of view it has numerous faults; but it ex- „_ • very skilful treatment of a vast and unwieldy subject.
it is the cue of the Benchers and their friends to defend the power us of Court in arbitrarily admitting or rejecting candidates for (314 ""ehief Justice Saunders is a great case with them ; though it may the bar whether he would have been ” called " in later days, or even areer is a very remarkable though a very exceptional one; .tdensed by Lord Campbell in its earlier stage. irst,' says Roger North, 'no better than a poor beggar-boy, if 'tiling, without known parents or relations.' There can be no boy, he was discovered wandering about the streets of London condition—penniless, friendless—without having learned ving received any education. But although his parentage 'temporaries with whom he lived when he had advanced
was unknown to the co mt inquiries have ascertained that he was born in the himself in the world, rectby the city of Gloucester; that his father, who was parish of Barnwood, close %, died when he was an infant, and that his mother above the lowest rank of Ii ve been driven to roam abroad tage being levelled to the ground it, hardly used by his stepfather, he hai. wheeled waggon to London, where he
"The little fugitive found shelter in qttionsness, and courting the attornies' cIt
be doubted now. His and is well co "'He was at not a parish fon doubt that, when a in the most destitu any trade, without ha
a a man of the name of Gregory, to whom she bore took for her second husband I 'king more respecting him with certainty till he several children. We know noViis; and we are left to imagine that he might ted himself the MetmPLC for subsistence, hr reason of his mother's cot- enng the siege 0f Gloucester ; or that, being I rim away, and had accompanied the broad- bad heard that riches and plenty abounded. Clement's Inn, where 'he lived by &se- ' rks for scraps.' He began as an errand-
ad. From the Norman Conquest tiLl the
'The Lives of the Chief Justices of Ensl LL.D., F.B.S.F., Author of boy, and his remarkable diligence and obliging disposition created a general terest in his favour. Expressing an eager ambition to learn to write one attornies of the Inn got a board knocked up at a window on the top of a staireax This was his desk; and sitting here, he not only learned the running hand of th. time, but court-hand, black letter, and ingrossing, and made himself an • eapsii entering clerk.' In winter, while at work, he covered his shoulders with a Was. ket, tied hay-bands round his legs, and made the blood circulate through fingers by rubbing them when they grew stiff. His next step was to copy deeds and law papers, at so much a folio or page; by which he was enabled to prs, cure for himself wholesome food and decent clothes. Meanwhile, he not only picked up a knowledge of Norman French and law Latin, but, by borroiriiz books, acquired a deep insight into the principles of conveyancing and speci,ii pleading. By and by, the friends he had acquired enabled him to take a may chamber, to furnish it, and to begin business on his own account as a convey and special pleader. But it was in the latter department that he took great,: delight, and was the most skilful—insomuch that he gained the reputation el being familiarly acquainted with all its mysteries; and although the order of special pleaders under the bar ' was not established till many years after, he Was much resorted to by attornies who wished by a sham plea to get over the term, by a subtle replication to take an undue advantage of the defendant. " It, has been untruly said of him, as of Jeffreys, that he began to practise as a barrister without having been ever called to the bar. In truth, the atomics wit consulted him, having observed to him that theyshould like to have his assistance to maintain in court the astute devices which he recommended, and which duller men did not comprehend or were ashamed of, he, rather unwillingly, listened e their suggestion that he should be entered of an Inn of Court; for he never cased much for great profits or high offices; and, having money enough to hay bfer and tobacco, the only luxuries in which he wished to indulge, he would have pre- ferred to continue the huggermugger life which he now led. He was dowse. cated in the family of a tailor in Butcher Row, near Temple Bar, and was sup. posed to be rather too intimate with the mistress of the house. However, with. out givieg up his lodging here, to which he resolutely stuck till he was made Lord Chief Justice of England, he was prevailed upon to enter as a member of the Middle Temple. Accordingly, on the 4th of July 1660, he was adinittel there by the description of Mr. Edmund Saunders, of the cOunty of the city of Gloucester, gentleman.' The omission to mention the name of his father migh; have given rise to the report that he was a foundling; but a statement of parent- age on such occasions, though usual, was not absolutely required, as it now is.'
The old race of lawyers expired with Lord Eldon, if indeed he was not an exceptional person even in his day. Their extinction may be partly attributed to the multiplicity of statutes and decisions, which renders thorough knowledge impossible • and in part to the increase of businsw, which leaves no leisure for study, and makes a judgment or rather a de. cision matter of haphazard. Something is to be attributed to the isle. pendent spirit of the age, in its impatience of authority, and its unwilling. ness to sacrifice the form to the substance of justice ;—for it might not be impossible to put the finger upon late rulings that have apparently been made in compliance with a public outcry rather than in obedience to rigid law. Allowance must also be made for the feebler constita• tion of the moderns. The old lawyers devoted themselves to their trade with a laborious intensity of which we can form no practical idea, and which we want strength to emulate. The following is the sketch of Coke as a student ; but it is idle to talk about his " industry " : no effort of will could have enabled him to keep up his attention for so long a time, or any external stimulus sustained his bodily strength. "He began his legal studies at Clifford's Inn, an 'Inn of Chancery', where, for a year, he was initiated in the doctrine of writs and procedure; and on the 24th of April 1572, he was entered a student of the Inner Temple, when he was to become familiar with the profoundest mysteries of jurisprudence. fie now steadily persevered in a laborious course, of which, in our degenerate age, we can scarcely form a conception. Every morning he rose at three,—in the winter season lighting his own fire. He read Braden, Littleton, the Year Boob, and the folio Abridgments of the Law, till the courts met at eight. He then went by water to Westminster, and heard cases argued till twelve, when pleas ceased for dinner. After a short repast in the Inner Temple Hall, he attendei 'readings' or lectures in the afternoon, and then resumed his private studies ti five, or supper-time. This meal being ended, the moots took place, when difficult questions of law were proposed and discussed,—if the weather was fine, in tie garden by the river-side; if it rained, in the covered walks near the Tempi, Church. Finally, he shut himself up in his chamber, and worked at his con. monplace book, in which he inserted, under the proper heads, all the legal us formation he had collected during the day: When nine o'clock struck he retiei to bed, that he might have an equal portion of sleep before and after midnight The Globe and other theatres were rising into repute, but he never would appal at any of them; nor would he indulge in such unprofitable reading as the pow of Lord Surrey or Spencer. When Shakspere and Ben Jenson came hito and fashion, that even 'sad apprentices of the law' occasionally assisted in masques, and wrote prologues, he most steadily, eschewed all such amusements; and liii supposed that in the whole course of his life he never saw a play acted, or real a play, or was in company with a player."
Such was the training for "Coke upon Littleton " ; and Hale was nearly as laborious.
We have spoken of the systematic use which might be made of tit statutes and the cases, in a book of this kind, to throw light upon a jud and his age. It strikes us that Lord Campbell does not turn this part his subject to the best account, even in furtherance of his immediate par. pose ; which simply seems to be the presentation of something readable in connexion with the matter in hand. Still the "eases" are frequently curious, as these on villeinage, from Dyer, a Judge of the time of Eli& beth. One or two of them will require close attention • but they are a S gular example of a part of society in the days of Goo Queen Bess. The most curious cases in Dyer's Reports are upon questions respecting: leinage ' or slavery. It is not generally known, that down to the reign of CP Elizabeth there were in England both 'villeins in gross,' or slaves that mIg
have been sold separately like chattels, and regardant,' or slaves attac to particular land, with which they were transferred along with the trees gro upon it. I will give a few examples. "In an action of trespass and assault, there was a justification by the lord of
manor that the plaintiff was his villein regardant; and the evidence being that was his villein in gross, the question arose, for which side judgment should given ? The defendant insisted that the substantial question was, villein free?' not 'villein regardant or villein in gross?' and that having greater rig over the plaintiff as villein in gross' than as 'villein regardant,' he had pro more than he was bound to prove, Red the action was well barred. One J inclined to this opinion; but the rest of the Court thought that, in favour of li the plea must be strictly proved; and .peradventure the plaintiff was misled the false issue tendered to him, and naght have deemed it enough to negative 'verdancy, without bringing forward .proof to negative the y' einae Iii u The tenant In tail of amenori-to wbiab vi3ehsare regardant, onfeoffacale of the villeios of one acre of the manor, and dies.. Now he clearly had exceeded his- power ; although, had he been tenant in fee simple the effect would have been, that the villein would have been enfranchised. Bu the question was whether the Eon of the feoffer, who was heir in tail, could at once seize the villein ? The Court hold, that although all the father had done might be disaffirmed, the son was boned, first to recover the aeze.of land, and then, but not till'then, he might seize bin villein. o Dyer, 48b. pl. 4. ' So it is holden in our old books, if a villein be made a knight, for the honour of his degree his person Is privileged, and the lord cannot seise him 0111 he be disgraded.'—Co. Litt. • 136. If a niefe, or female villein, was married by a iteenian, the lord could no seize her but might maintain an action against the husband ror the loss of her ; and if a villeln was professed as a monk, the lord could not seize tun, but might maintain a similar action against the superior of the convent who ad- mitted hint.—Lin. see. 202; 2 Bl. Corn. 95, 96.] "Butler, lord of the manor of Badminton, in the county of Gloucester, contend- ing that Crouch was his villein regardant, enteredinto certain lands, which Crouch had purchased in the county of Somerset, and leased them to Fleyer. Crouch thereupon disseised Fleyer; and Fleyer brought an action against Crouch ; who pleaded that he had purchased the land. Fleyer replied his lease from Butler; and alleged that Butler and his ancestors, and all those whose estate he bath in the manor of Badminton, were seized of Crouch and his ancestors, as of villeins regardant to the same manor, from time whereof the memory of man runneth not to the contrary.' Issue being thereupon joined, the jury found a special verdict, 'That Butler and his ancestors were seised of the manor from time immemorial; and that the ancestors of Butler were seised, during all that time, of the ancestors d Crouch as of villeins regardant, until the first year of Henry VII., add that Crouch was a villein regardant to the said manor, and that no other seizin of Crouch or his ancestors was had since; but whether the said seizin of the said manor be in law a seizin of the said Crouch and his ancestors since the said first
year of Henry VII. the jurors v the opinion of the Court.'
"Dyer, C. J., and all the Judges of the Court of Common Pleas, agreed that upon this verdict there should be judgment for the defendant; chiefly on this ground— 'because no actual or full seizin in Butler and his ancestors, of Crouch and his an- cestors as villeins regardant, is found, but only a seizin in law, and the lord baring let an hundred years pass without redeeming, the villein or his issue can- not after that seise them."
There is some interest in the following rulings respecting slavery in
England, some half century before Granville Sharp's celebrated effort.
"Lk& was the first to lay down the doctrine, which was afterwards fully esta- blished in the case of Somersett the Negro, that the status of slavery cannot exist in England, and that as soon as a slave breathes the air of England he is free. The question originally arose before him in a very technical shape. In point of fact, a slave had been sold in Virginia, where slavery was allowed by law; and, an action being brought in the Court of King's Bench.for the price the declara- tion stated that 'the defendant was indebted to the plaintiff in the parish of St. Mary-le-Bow, in the ward of Cheap, in the city of London, for a Negro slave there sold and delivered,'—allegations of time and place in such proceedings being generally immaterial. But on this occasion, after a verdict for the plaintiff, there was a motion in arrest of judgment because the contract in respect of which the supposed debt arose was illegal. Holt, C. J.—' As soon as a Negro comes into England he is free ; one may be a villein in England, but not a slave. The action would have been maintainable if the sale had been alleged to be in Virginia and that by the law of the country slaves are saleable there.' Judgment arrested. "Subsequently, an action of trover was brought in the Court of Queen's Bench to recover the value of a Negro alleged to be the property of the plaintiff, and to have been unlawfully detained by the defendant. The plaintiff's counsel relied upon a decision of the Court of Common Pleas, that trover will lie for a Negro, because Negroes are heatheos, and therefore a man may have property in them, and, without averment, notice may be taken judicially that Negroes are heathens.' But per Holt, C. J.= Troyer does not lie for a Black man more than for a White. By the common law no man could have a property in another man, except in spe- cial cases, as in a villein, or a captive taken in war; but in England there is no such thing as a slave, and a human being never was considered a chattel AO be sold for a price, and, when wrongfully seised, to have a value put upon him in damages by a jury, like an ox or an ass.'" The most elaborate life in the work is that of Lord Mansfield; on which Lord Campbell is able to throw new lights from family communications.
One of these facts relates to the time at whictrLord Mansfield came to Eng- land, which has hitherto been fixed at three years of age. .
"This statement has been followed by all the subsequent biographers of Lord Mansfield, and has been assumed for truth by all who have since referred to his early :career. According to Roswell, Dr, Johnson would not -allow Scotland to cleave any credit from Lord Mansgeld, as he had been reared in England ; ob- serving,. Much may be made of a Scotchman if he be cagght young.' But I have ascertained from his near kinsmen,, *hp speak from family papers, that the story of his beingthus caught and tamed. iArge.invention. He remained at the Grammar School at Perth till he was in ,Ins,feurteenth year, when he went to Westminster. . Afterwards, by constant. yams with his pronunciation, and by never returning to visit his native ceuntry,* did Llmost entirely get rid of his Scottish accent; but there were some shikhoTetli words which he could nei4 pro- nounce properly to his dying day, and -which showed, that his organs of speech had contracted Some rigidity; or-gcorgans Cf,hearing some dulness, before his expatriation. For example,: linhconverted ”eginieta into reg'ment; at dinner he asked not for bread MINIM' brie 'and in calling over the bar he did not say `Mr. Solicitor,' but 'Mr. Soleester, will you move anything.' " The family of the Milirkyi though very4Ohle, was not very rich ; and Lord Campbell gives 'a 'Safe:ludic description of their poverty. ' When youne.Williain, on the recommhndation of an elder brother, (the Secretary. 0 to the Pretender,) and with the prospect Of"Atterbury's patronage was to be settled at Westminster.Sehool, he stirted'inlhis wise for the patronage, "He was to perform the -whole journey calititiSehaek=riding the Same horse. Post-horses were not established tIll long after. There were then two or three times a month traders from Leith to the river Thames, in which passengers might be accommodated; but., if the wind was fimil, they were sometimes six weeks on the may. A coach, advertised to run once a week from the Black Bull in the Vannongate to the Bull and Mouth in St. Martin's-le-Grand, did not promise to arrive before the tenth day, and,' besides being very incommodious, was very ex- pensive. Mr. William wastherefore to be carried on the back of a ‘galloway,' or Pony, which my Lord had bred, and which to be sold on his arrival in the great city to help to pay the expenses of his outfit there. "On the 15th March 1718 he joyfully bade adieu to Mr. Martine and his school
at Perth. • • • • •
"His long but not wearisome journey was concluded on the 8th May 1718. Be had been consigned to the care of one John Wemyss, an emigrant from Perth, who had settled in London as an apothecary, and had thriven there very much by his skill, attentiveness, and civility. This canny Scot had been born on the Stormont estate, and was most eager to have it in his power to be of service to any of that family. Ile did all that was necessary to launch Mr. William in London, by assisting hint to sell his horse, by advan- cing him money and making payments for him; by buying him, a sword, two 'wigs, and proper clothes, by entering him with the Head Master of Westmuister School, and by settling him at a dame's in Dean's Yard. The following are a few items in the account which he afterwards rendered into Lady Stormont; and they give a more lively notion of the customs and manners of the time than could be gathered from whole pages of dull narrative, explanation, and dissertation.
Lib. ch. cl.
"'1718, May 8, ffor ye carriadge arr. William's box and bring- .
ing It home . 09 • ' ffor his horse before he was sold 08 7 To Dr. ffriend for entrance i ot .
ffor a Trunk to him ifor his deaths . 13 O.
To his Landlady where he Boards, for Entry money 500 0 — 25. ffor a sword to him 1 01 IT ffor a belt ffor pocket money to him • IV s' June 5. ffor pocket money
'ffor two wigs as per remit ..1 I. ' :
— 18. ffor a doable letter and pocket money to him . 2 0 Aug. 16. To Mr. William who went to the Countrey Dec. 17. Three guineas to the masters and a double letter 3 4 - 1719. Jany. 4. ffor pocket money 5 still : and the I] to Dr. Friend ' 3 guineas 3 8 t — 21. To Mr. Wm. to Treat with before the Elections began 1 1 0 Pay'd the Taylor asp' bill 9 9 • Pard Mrs. Tollett or I years Board and for thhags laid out for him as pt bill 20 10 4 ' ''