timber, &c., formerly there might be waste in villeins. Some of the distinctions taken in the old books are curious as to what acts might and what might not amount to legal waste in regard to villeins. Thus :-"If tenant in dower of a manor to which villeins are regardant manumits the villeins, this is not any waste, because it is not any manumission but against herself; for he in reversion may seize them after her death. (2 Hen. VI. 11, Curia.) But if she had beat the villeins, or constrained them to do other services which they did not before, by which they go out of the seigniory, it is waste. (2 Hen. VI. 11.) "

We here see a time when men were considered as a species of real property by the laws of England. But, though as regards general law that time has long passed away, according to certain local laws a similar state of things existed till very recently in some of the dependencies of the British empire, governed by the English laws. During the period of which we now write, there were British statutes recognizing a local state of slavery in certain British colonies-recognizing too a trade in slaves. The slave trade was abolished, as far as regarded British participation in it, by the statute 47 Geo. III., sess. 1, c. 36; amended and rendered more effectual by stat. 51 Geo. III. c. 23, by which carrying on the slave trade, or being in any way engaged therein, is declared to be felony. These statutes were further amended by the 58 Geo. III. c. 49 and the 59 Geo. III. c. 120. But they were all repealed and the whole law on the subject consolidated by the 5 Geo. IV. c. 113. The act for establishing a registry of colonial slaves in Great Britain (stat. 59 Geo. III. c. 120) has in its principal provisions been fully recited and confirmed by stat. 5 Geo. IV. c. 113, s. 37. It prohibits all sales, mortgages, and charges of slaves, made within the United Kingdom, unless the slaves be previously registered at the office, according to the returns from the colony; and enacts, that after 1st January, 1820, "no deed or instrument, made or executed within this United Kingdom, whereby any slave or slaves in any of the said colonies shall be intended to be mortgaged, sold, charged, or in any manner transferred or conveyed, or any estate or interest therein created or raised, shall be good or valid in law, to pass or convey, charge or affect any such slave or slaves, unless the registered name and description, or names and descriptions of such slave or slaves shall be duly set forth in such deed or instrument, or in some schedule thereupon endorsed or thereto annexed, according to the then latest registration, or corrected registration, of such slave or slaves in the said office of the registrar of slaves." This is followed by several provisos; that instruments shall not be vitiated by the mistakes of clerks; that mortgages or charges, made before the act (12th July, 1819), may be transferred as formerly; that wills, probates, letters of administration, and conveyances and assignments made under the au

Cited 22 Vin. Abr. 437.

thority of a commission of bankrupt, or of an court of justice, &c., shall not be affected; wi that the issue of registered slaves, born since the last return, shall be considered as registered.*

The statutes 45 Geo. III. c. 10, and 46 Gea III. c. 98, are the laws now in force for the regelation of quarantine. The substance of their previsions is thus stated by Mr. Justice Coleridge in one of his notes to his edition of Blackstone's Commentaries: "Many offences described i these statutes are punished by pecuniary penaltis and imprisonment; but it is felony, without beneit of clergy, for any master knowingly to omit cisclosing that he has touched at any infected place, or has any infected person on board, or wilfully to omit, under such circumstances, the hoisting the yellow flag; it is also a capital offence for person liable to perform quarantine to refuse to repair to the appointed place for performing it, or to escape from it; and for any officer of quarantine knowingly to permit any person, ship, or goods to depart or be conveyed from such place without permission of his majesty, or to give a false cerificate of the due performance of quarantine. Persons uninfected who once enter a lazaret are laid under the same restrictions, and exposed to the same punishments, as those performing quarantize there. It is also a capital offence to convey clandestinely, or conceal for such purpose, any letters or goods from a ship in quarantine. By the common law, it is a nuisance to expose persons infected with contagious disorders in streets or places of public resort, and, therefore, though it is not unlawful to inoculate with the small-pox, yet it must be done under such guards, and the patients afterwards so managed, as not to endanger the public health by the communication of the disease. R. v. Vantandillo, 4 M. and S. 73, and R. v. Burnett, 4 M. and S. 272." †

By the statute 43 Geo. III. c. 58, commonly called Lord Ellenborough's Act, attempts to murder by certain means are made capital felonies. This statute, to quote the summary given by Mr. Justice Coleridge, "punishes with death in principals, counsellors, aiders, and abettors, the maliciously shooting at any of his majesty's subjects; the presenting, pointing, or levelling any kind of loaded fire-arms at any one; the attempting in any way to discharge the same at any one; stabbing or cutting any one, with intent in so doing any of these things to murder, rob, maim, disfigure, disable, or do any other grievous bodily harm to such person, or with intent to obstruct or resist the lawful apprehension or detainer of the person so stabbing or cutting, or of any accomplice, for any offence for which he or they may be liable by law to be apprehended, and the maliciously administering any deadly poison or other noxious thing, with intent to murder, or cause the miscarriage of, any woman then quick with child. The

It may be almost unnecessary to add that, by the statute 3 and 4 Will. IV. c. 73, slavery is abolished throughout the British colonies.

+ 4 Coleridge's Bl. Comm., 162, note (1).

same statute provides, however, that, if the shooting at, levelling, or attempting to discharge the loaded fire-arms, or the stabbing or cutting, were done under such circumstances as that, if death had ensued, the same would not in law have amounted to murder, then the party charged shall be acquitted." "* This statute also, says the same writer in a subsequent note to his edition of Blackstone, "makes it a capital felony wilfully and maliciously to set fire to any house, barn, granary, hop-oast, outhouse, mill, warehouse, or shop, whether the same shall then be in the party's own possession or not, if it be done with intent to injure or defraud his majesty, any of his subjects, or any body corporate. The principal object of this enactment was to comprise the cases of persons burning houses, mills, &c., of which they are tenants or owners, to the injury of their landlords, or to defraud the insurers. But it is not necessary to prove any distinct malice or intent to defraud beyond that which the law necessarily implies from the act of deliberate arson."t

The statute 52 Geo. III. c. 130, makes it a capital felony maliciously to burn or set fire to any buildings, erections, or engines used in the carrying on any trade or manufactory, or in which any goods, wares, or merchandise are deposited.

The statute 43 Geo. III. c. 113, repeals the provisions of 4 Geo. I. c. 12 (by which captains and mariners belonging to ships, and destroying the same, to the prejudice of the owners and insurers, are made guilty of felony, without benefit of clergy), and makes it a capital felony, triable within a county, if committed there, and according to 28 Hen. VIII. c. 15, if on the high seas, wilfully to cast away, buru, or otherwise destroy any vessel, or to counsel the same to be done, if it be done accordingly, with intent maliciously to prejudice any owner of such vessel, or of any goods loaded on board, or any person or body corporate who shall have insured the ship, freight, or goods.

The statute 57 Geo. III. c. 127, s. 4, consolidates the various statutes on the subject of forging and counterfeiting letters of attorney and writings of various kinds, and of personating the characters of officers, seamen, or other persons, for purposes of fraud, in order to receive their wages; and embraces all the cases of personation and forgery, to obtain wages, pay, prize-money, bounty-money, pension-money, or other allowances of money, of any naval or marine officer, seaman, marine, or other person entitled to such wages, &c., and makes the offence felony, without benefit of clergy, and punishable with death.

The present period is distinguished by the humane exertions of Sir Samuel Romilly and others to soften the severity of the English penal code. That code wanted amendment in two opposite directions, having, as the new statutes which we have just been giving an imperfect abstract of sufficiently show, allowed some heavy

Note to 4 Bl. Comm. 196.

+ Note to 4 Bl. Comm. 221.

VOL. IV.-GEO. III.

offences to escape with a very slight punishment, while it punished other offences, comparatively light, with disproportioned and inhuman severity. On the 18th of May, 1808, Sir Samuel Romilly introduced a bill to repeal the statute of 8 Eliz. c. 4, by which the punishment of death was inflicted for the offence of privately stealing from the person. This bill, with some amendments, passed into a law, and became the statute 48 Geo. III. c. 129. By this statute (sect. 2) it is enacted that every person who shall at any time, or in any place whatever, feloniously steal, take, and carry away any money, goods, or chattels, from the person of any other, whether privily without his knowledge or not, but without such force or putting in fear as is sufficient to constitute the crime of robbery, or who shall be present, aiding and abetting therein, shall be liable to be transported beyond the seas for life, or for such term, not less than seven years, as the judge or court before whom any such person shall be convicted shall adjudge, or shall be liable, in case the said judge or court shall think fit, to be imprisoned only, or to be imprisoned and kept to hard labour in the common gaol, house of correction, or penitentiary house, for any term not exceeding three years."

In the session of 1810 Sir Samuel Romilly introduced three bills, to repeal the statutes 10 and 11 Will. III., 12 Anne, and 24 Geo. II., making the privately stealing in a shop goods of the value of five shillings, or in a dwelling-house, or on board a vessel in a navigable river, property of the value of forty shillings, capital felonies. All these bills were lost, the first in the Lords, and the second in the Commons, the third being withdrawn ; but in the following year Sir Samuel carried through a bill to abolish the punishment of death for stealing from bleaching-grounds, which became the statute 51 Geo. III. c. 41; and in 1812 he procured a repeal of the act of Elizabeth, which made it capital in soldiers and mariners to be found wandering about the realm without a pass. It would be unfair not to add here that, though at the time the opposition offered to the measures he proposed by those who took a different view of criminal law reform from Sir Samuel Romilly (among the most powerful of whom Lord Ellenborough was conspicuous) was successful, yet very shortly after his death several of those alterations in the law which he so zealously promoted were carried into effect. The statute of William III., inflicting the punishment of death for the offence of privately stealing in a shop to the value of five shillings, was repealed at the commencement of the reign of George IV., and transportation or imprisonment substituted. The statute of George II., making it capital to steal goods to the value of forty shillings on board a vessel in a navigable river, was also repealed about the same time, and transportation or imprisonment substituted. The value of the goods stolen in a dwelling-house, ne

*

1 Geo. IV. c. 117. 4 Geo. IV. c. 53. 7 and 8 Geo. IV. c. 29, § 15. † 4 Geo. IV. c. 53. 4 N

cessary to render the offence capital, was also a few years after raised from forty shillings to five pounds."

During this period several statutes relating to bankrupts were passed, but as they, together with all the other former enactments respecting bankrupts, were repealed by the statute 6 Geo. IV. c. 16, it is unnecessary to say anything about them.

LORD ELDON.

Among the lawyers of this period the most prominent both for station and legal learning was the Lord Chancellor Eldon. Lord Brougham, in sketching the peculiarities of Lord Eldon's professional life, says: "That he had all the natural qualities and all the acquired accomplishments which go to form the greatest legal character, is undeniable. To extraordinary acuteness and quickness of apprehension he added a degree of patient industry which no labour could weary, a love of investigation which no harshness in the most uninteresting subject could repulse. His ingenuity was nimble in a singular degree, and it was inexhaustible; subtlety was at all times the most distinguishing feature of his understanding; and, after all other men's resources had been spent, he would at once discover matters which, though often too far refined for use, yet seemed so natural to the ground which his predecessors had laboured and left apparently bare, that no one could deem them exotic and far-fetched, or even forced. When, with such powers of apprehending and of inventing, he possessed a memory almost unparalleled, and alike capable of storing up and readily producing both the most general principles and the most minute details, it is needless to add that he became one of the most thoroughly learned lawyers who ever appeared in Westminster Hall, if not the most learned; for, when it is recollected that the science has been more than doubled in bulk, and in variety of subjects has been increased fourfold, since the time of Lord Coke, it is hardly possible to question his superiority to the great light of English jurisprudence, the only man in our legal history with whom this comparison can be instituted."†

In general intellectual superiority, however, Lord Eldon will scarcely be placed by any one above Lord Hardwicke, who, while he had perhaps no superior in learning, had, we should be inclined to say, no equal in power of mind even among the distinguished men who have successively occupied the same seat with himself. We must add, however, in power of mind exercised in the judicial functions, for no one can doubt that, exercised in another direction, Lord Bacon displayed powers of mind superior to his. It is worth remarking that Lord Eldon and Lord Hardwicke sat as chancellors about the same length of time, both having previously presided with great ability in a common law court. But the precedence in point of time, independently of other considerations, has made Lord Hardwicke's judgments form a far larger proportion of that body of jurisprudence which receives the name of equity than those of Lord Eldon.

In reference to Lord Eldon's slowness in coming to a determination as a judge, Lord Brougham says: "It would be far more correct to say that he had great reluctance to pronounce the decision he had long ago, without any hesitation, come to. The bad habit into which he fell, of not attending to the arguments while they were delivering before him, made him often postpone the forming of his opinion, but it was because he postponed giving his attention to the case. As soon as he brought his mind to bear upon it, he, with great ease and quickness, came to a judgment regarding it; and, having a great and most just confidence in the soundness of that judgment, he scarcely ever after altered it in any material respect. Indeed, the hesitation with which he pronounced it, the slowness with which he gave it at all, and, when he gave it, the numberless arguments on both sides which he produced, and the endless difficulties which he raised in the way of the course he was manifestly all the while taking, gave him every appearance of hesitation and uncertainty, and made the person who knew him not fear that he was a vacillating judge, who had hardly formed any opinion at all upon the case, and might be overset by the casting of dust in the balance to make each side almost indifferently preponderate." And it is afterwards added, "It would be no exaggeration at all to assert that Lord Eldon's judgments were more quickly formed, and more obstinately adhered to, than those of any other judge who ever dealt with such various, difficult, and complicated questions as he had to dispose of." But how is this to be reconciled with such evidence as the following? In Whitmore v. Trelawny, Lord Chancellor Eldon is reported as expressing himself in these terms:-"It is impossible in the construction of such a will as this to be quite sure I am right in the opinion I have formed; and yet I confess an inclination of opinion, rising almost to confidence, that the claims,"

• Historical Sketches of Statesmen, &c., p. 68. † 6 Ves. 129.

&c. Again, in ex-parte Knott, he made the following remark:-"Upon some parts of this case I have not doubt enough to induce me to postpone the judgment." His lordship speaks of doubt and postponing judgment almost as if they were things to be sought, not avoided. But on one occasion he surpassed himself, beginning a decision by saying, "Having had doubts upon this will for twenty years," &c. After this we must be allowed to doubt if it can be correctly asserted that Lord Eldon's judgments were in any sense or degree "quickly formed." Lord Brougham indeed adds, "But the apparent hesitation and the certain delay were of the very worst consequence to his usefulness on the bench." Whether the hesitation was apparent or real, the delay was indeed certain, and must have been attended with disastrous consequences to the suitors interested in a will upon which his lordship had indulged in his luxury of doubting for twenty years, his hesitation having been, if we may believe himself, not merely apparent but real.

LORD STOWELL.

The name of Lord Eldon suggests that of his brother, Sir William Scott (Lord Stowell), whose eminence in his department equalled, if it did not exceed, that of his better-known brother in his. We cannot do better than give Lord Brougham's account of this eminent civilian's peculiar judicial characteristics. "There has seldom," says his lordship, "if ever, appeared in the profession of the law any one so peculiarly endowed with all the learning and capacity which can accomplish, as well as all the graces which can embellish, the judicial character, as this eminent person. Confining himself to the comparatively narrow and sequestered walks of the consistorial tribunals, he had early been withdrawn from the contentions of the forum, had lost the readiness with which his great natural acuteness must have furnished him, and had never acquired the habits which forensic strife is found to form-the preternatural power of suddenly producing all the mind's resources at the call of the moment, and shifting their application nimbly from point to point, as that exigency varies in its purpose or its direction. But so had he +1 Madd. Chanc. preface 9.

11 Ves. 617.

also escaped the hardness, not to say the coarseness, which is inseparable from such rough and constant use of the faculties, and which, while it sharpens their edge and their point, not seldom contaminates the taste, and withdraws the mind from all pure, and generous, and classical intercourse, to matters of a vulgar and a technical order. His judgment was of the highest cast; calm, firm, enlarged, penetrating, profound. His powers of reasoning were in proportion great, and still more refined than extensive, though singularly free from anything like versatility, and liable to be easily disturbed in their application to everyday use. If the retired and almost solitary habits of the comparatively secluded walk in which he moved had given him little relish for the strenuous and vehement warfare of rapid argumentation and the logic of unprepared debate, his vast superiority was apparent when, as from an eminence, he was called to survey the whole field of dispute, and to marshal the variegated facts, disentangle the intricate mazes, and array the conflicting reasons which were calculated to distract or suspend men's judgment. If ever the praise of being luminous could be justly bestowed upon human compositions, it was upon his judgments, and it was the approbation constantly, and as it were peculiarly, appropriated to those wonderful exhibitions of judicial capacity.

"It would be easy, but it would be endless, to enumerate the causes in which his great powers, both of legal investigation, of accurate reasoning, and of lucid statement, were displayed to the admiration, not only of the profession, but of the less learned reader of his judgments. They who deal with such causes as occupied the attention of this great judge have this advantage, that the subjects are of a nature connecting them with general principles, and the matter at stake is most frequently of considerable importance, not seldom of the greatest interest. The masses of property of which the consistorial courts have to dispose are often very great; the matrimonial rights on which they have to decide are of an interest not to be measured by money at all; but the questions which arise in administering the law of nations comprehend within their scope the highest national rights, involve the existence of peace itself, define the duties of neutrality, set limits to the prerogatives of war. Accordingly, the volume which records Sir W. Scott's judgments is not, like the reports of common law cases, a book only unsealed to the members of the legal profession; it may well be in the hands of the general student, and form part of any classical library of English eloquence, or even of national history. If among his whole performances it were required to select one which most excited admiration, all eyes would point to the judgment in the celebrated case of Dalrymple v. Dalrymple, where the question for his determination was the state of the Scottish law upon the fundamental point of what constitutes a marriage. The evidence given upon this question

of fact (as it was before him, a foreign judge) consisted of the depositions of Scottish lawyers, the most eminent of their age, and who differed widely in their opinions, as well as the text-books referred to in their evidence. Through this labyrinth the learned civilian steered his way with an acuteness, a wariness and circumspection, a penetrating sagacity, and a firmness of decision, only to be matched by the singularly felicitous arrangement of the whole mass of matter, and the exquisite diction, at once beautifully elegant and severely chaste, in which his judgment was clothed. It is well known that this great performance, though proceeding from a foreign authority, forms at the present day, and will indeed always form, the manual of Scottish lawyers upon its important subject." *

SIR W. GRANT.

During a part of the time that Lord Eldon sat in the court of chancery, the judge's seat of the second equity court, that of the master of the Rolls, was filled by Sir William Grant, one of the most eminent judges, and one of the clearest and most powerful-minded reasoners, of his own or any age. There are some points in Sir William Grant's history that render his career different from the ordinary one of successful lawyers. It will frequently be found that the more successful class of lawyers are little known in parliament, that many indeed do not enter parliament till they are made conspicuous by their official rank of attorney or solicitor general. It was not so with Sir William Grant. With little distinction and a very moderate share of practice at the bar for many years, his public character rested entirely upon the success of his parliamentary exertions, until he was raised to the bench. Of his merits as a speaker in parliament, the following short anecdote, related by Lord Brougham, will convey some idea, at least when accompanied by the remarks which introduce it. "His style was peculiar; it was that of the closest and severest reasoning ever heard in any popular assembly; reasoning which would have been reckoned close in the argumentation of the bar or the dialectics of the schools. It was, from the first to the last, throughout, pure reason and the triumph of pure *Statesmen, second series, pp. 73-75.

reason. All was sterling, all perfectly plain; there was no point in the diction, no illustration in the topics, no ornament of fancy in the accompaniments. paniments. The language was choice, perfectly clear, abundantly correct, quite concise, admirably suited to the matter which the words clothed and conveyed. In so far it was 'felicitous, no further; nor did it ever leave behind it any impression of the diction, but only of the things said; the words were forgotten, for they had never drawn off the attention for a moment from the things; those things were alone remembered. No speaker was more easily listened to; none so difficult to answer. Once, Mr. Fox, when he was hearing him with a view to making that attempt, was irritated in a way very unwonted to his sweet temper by the conversation of some near him, even to the show of some crossness, and (after an exclamation) sharply said, 'Do you think it so very pleasant a thing to have to answer a speech like THAT?'"*

Lord Brougham's description of Sir William Grant's deportment in the Rolls court is one of the finest pictures in his work :

"The court in those days presented a spectacle which afforded true delight to every person of sound judgment and pure taste. After a long and silent hearing-a hearing of all that could be urged by the counsel of every party-unbroken by a single word, and when the spectator of Sir William Grant (for he was not heard) might suppose that his mind had been absent from a scene in which he took no apparent share, the debate was closed-the advocates' hour was passed-the parties were in silent expectation of the event-the hall no longer resounded with any voice-it seemed as if the affair of the day, for the present, was over, and the court was to adjourn or to call for another cause. No! the judge's time had now arrived, and another artist was to fill the scene. The great magistrate began to pronounce his judgment, and every eye and every ear was at length fixed upon the bench. Forth came a strain of clear unbroken fluency, disposing alike, in most luminous order, of all the facts and of all the arguments in the cause, reducing into clear and simple arrangement the most entangled masses of broken and conflicting statement; weighing each matter, and disposing of each in succession; settling one doubt by a parenthetical remark; passing over another difficulty by a reason only more decisive that it was condensed; and giving out the whole impression of the case, in every material view, upon the judge's mind, with argument enough to show why he so thought, and to prove him right, and without so much reasoning as to make you forget that it was a judgment you were hearing, by over-stepping the bounds which distinguish a judgment from a speech. This is the perfection of judicial eloquence; not avoiding argument; but confining it to such reasoning as beseems him who has rather to explain the grounds of his own conviction than to labour at convincing others; not rejecting refer⚫ Statesmen, first series, p. 138.