Chapter 2

True as the dial to the sun,Although it be not shone upon.

I question whether, during this two or three years' bitter and disheartening probation, he made more than thirty, or at least forty guineas; his annual certificate for leave thus to do—nothing, cost him, nevertheless, £12. Yet I never once heard him, nor I undertake to say, did any of his friends, express fretfulness or impatience at his disheartening lack of employment. He manifested, on the contrary, a quiet fortitude that was touching to witness. I recollect him once, however, when we were conversing on the subject, saying rather pensively, "If one has not connexions, and cannot make them, it is next to impossible to get any business." The professional public possess conclusive and permanent evidence of the admirable use which he made of his time, during the first year or two of his essaying to practise as a pleader; for in July 1834, two months after having been called to the bar, he gave to the world a work which, as soon as it had become known, raised him to the very highest rank of legal writers. The more it was read or referred to the higher was the estimate formed of its writer's intellect and learning, alike by the bench and the bar; for he had most discreetly, yet boldly, chosen a subject of great difficulty and importance, properly treated by no work extant, and which gave him opportunity of supplying a long-acknowledged deficiency in professional literature. He undertook, in fact, to produce a comprehensive practical treatise, within an exceedingly moderate compass, on "Mercantile Law:" and he succeeded to admiration—did this neglected young man of scarce twenty-five years old—in producing, entirely unassisted, a work signally calculated to attain the proposed object; condensing into a very small space, and with almost unerring accuracy, a greatamount of exceedingly difficult law, beautifully and perspicuously arranged, so as that even laymen might read as they ran, and receive guidance in the most perplexing exigencies of business, while the ablest lawyers, might safely refer to the pages of the "Compendium" for a terse and true statement of the result of many conflicting decisions, and a luminous exposition of theprincipleswhich ought to govern the administration of commercial law. The calm, practised skill with which this young unknown jurist moved about in these regions of subtle intricacy—inter apices juris—excited the cordial admiration and respect of all competent judges. He was manifestly a master of his subject; and having quietly detected important but unoccupied ground, had possessed himself of it with skill and resolution:—and this he did within little more than two years after he had quitted the scene of his solitary year's pupilage. Within six years this book has passed through three large editions; and a fourth is, it is believed, in preparation, which will comprise a great number of its departed author's own additions and emendations, continued up to within two or three months of his decease. Not only in this country, but in the United States of America, is this valuable work deservedly held, at this moment, in the highest estimation, as practically the only book of its kind. A glance at the brief Preface will suffice to show to a competent judge, whether lay or professional, at once the real and peculiar difficulty of the undertaking, the author's exact and happy illustration of the sources of that difficulty, and the simplicity and accuracy of his style.

"The Mercantile Law is in one respect better adapted to compression than the Law of Real Property; inasmuch as the reasons upon which the former is based, can be explained more shortly than those which support the latter. The reasons upon which our Law of Real Property is founded, are, generally speaking, historical; and part of history must therefore be recounted, in order to explain them clearly and philosophically; while the Mercantile Law is deduced from considerations of utility, the force of which the mind perceives as soon as they are pointed out to it. For instance, if a writer were desirous of explaining why a rent-service cannot be reserved in a conveyance, by a subject, of lands in fee-simple, he would be obliged to show the feudal relations that existed between lord and tenant, the nature of sub-infeudations, and how the lord was injured by them, in such his relation to his tenant, how the statutequia emptoreswas enacted to prevent this injury; in consequence of which statute a tenure, without which no rent-service exists, cannot be raised by a conveyance from one subject to another, in fee-simple. In like manner, the explanation of a recovery, of a fine, of a copyhold, of an estate in ancient demesne, of an use, of a trust, would require a process of historical deduction. But when the reader is told, that the drawer of a bill of exchange is discharged, if timely notice be not given him of its dishonour; because, without such notice, he might lose the assets he had placed to meet it in the drawee's hands; or, that if A hold himself out as B's partner, he will be liable as such, because he might else enable B to defraud persons who had trusted him upon the faith of the apparent partnership and joint responsibility: when these reasons, and such as these, are given, every man at once perceives their cogency, and needs not to be toldhow, that he may knowwhy, the law was settled on its present footing. The fitness of this subject for compression is, therefore, hardly questionable. The difficulty of compressing it is, however, extreme. The author who attempts to do so, must continually keep in view a triple object, must aspire at once to clearness, brevity, and accuracy; a combination so difficult, that its difficulty may, it is hoped, be fairly pleaded in excuse for some of the deficiencies and imperfections which the reader may discover in the following pages."

After a luminous and elegant introductory account of the rapid growth and development of mercantile law, the author thus announces the convenient and comprehensive plan of his work:—

"This treatise will be divided into four books. The first, concerning MercantilePersons; the second, MercantileProperty; the third, MercantileContracts; the fourth and last, MercantileRemedies; a method which appears the simplest and most comprehensive; since it includes, under a few heads, the description of those by whose intervention trade is carried on; of that which they seek to acquire by so employing themselves; of the arrangements which theyare in the habit of adopting, in order to do so effectually; and of the mode in which the proper execution of those arrangements is enforced."

A striking evidence of the value of this work, the soundness of his opinions, and the importance attached to them in the highest judicial quarters, was afforded by the very first number of the Reports of the Court of Exchequer, published after his death, where (inTannerv.Scovell, 14Meeson and Welshy, 37,) the Lord Chief Baron, after time taken to consider an important question of mercantile law, delivered the judgment of the Court in expressed conformity with the doctrine which Mr. Smith has laid down in his "Mercantile Law," and in opposition to the opinion of the late very learned Mr. Justice Taunton!

To retrace our steps, however, for a moment: Mr. Smith at length despaired of getting business under the bar, and tired of sitting a prisoner at chambers, in vain expectation of it. His rooms and mine were directly opposite to each other, on the same floor; and rarely or never was a knock heard at his door, except that of some friend coming either to ask his able and willing assistance, or chat away a weary half hour. Towards the close of 1833, he announced to his friends that he contemplated trying his fortune at the bar, and was easily persuaded, with that view, to commence attendance at a professional debating society, called "The Forensic," which, confined to barristers and students for the bar, and established so long ago as 1815, has numbered among its members almost every lawyer of eminence who has appeared since that year, including Sir William Follett and Mr. J.W. Smith. He entered this society on the 29th January, 1834; and I well recollect his first essay at addressing it. It was upon the discussion of a legal question. He was evidently very nervous when he rose, for the colour quite deserted his cheek. His manner was cold, dry, and formal, and sufficiently uninteresting, and uninviting. We were all, however, soon struck by the book-like precision of his language, the clearness and closeness of his reasoning, and the extent of his legal knowledge. He spoke for about ten minutes; and, having risen amidst a half-suppressed titter, sate down amidst earnest cries of "Hear, hear, hear!" He afterwards spoke pretty regularly, especially upon legal questions; and those who, in due course, were appointed beforehand to argue against him, felt it expedient to come particularly well prepared! Shortly before he was called to the bar, he said to me, with a timid, dejected air, "It is a bold step; but I really don't see what else is to be done. Why should I sit any longer perishing in chambers? Besides, my 'Mercantile Law' will be out in a month or two, and if it succeed, it maypossiblygive me a lift—so I shall try it." He was accordingly called to the bar on the 2d May, 1834, selecting the Oxford Circuit and the Hereford and Gloucester Sessions. "There are only two ways," I heard him say, (quoting the well-known dictum of a late able judge,) "of getting on at the bar, Pleading or Sessions. I have failed in the former, I shall now try the latter.Flectere si nequeo superos, Acheronta movebo!" I was, I confess, amongst those of his friends who were not sanguine as to his prospects of success at the bar, regarding him as unlikely to attract favourable notice in court practice. Shortly after he had attended at the Sessions, however, he began to obtain a little employment in petty cases there; and, contrary to expectation, became very successful in defending prisoners: his acuteness, vigilance, ingenuity, and legal knowledge—particularly of the law of evidence—became more apparent in every succeeding case intrusted to him. In spite of the dry formality of his manner, he soon attracted theunderstandingof his hearers, exhibiting great caution and judgment in dealing with the evidence, his tenacious memory here standing him in great stead. His start at sessions, however, seemed likely to lead to nothing, on the civil side at the assizes—where his reception was sufficiently disheartening. He attended regularly, nevertheless, both assizes and sessions; during his stay in town labouring with indefatigable energy in the acquisition of law. In 1835, he composed a lucid littletreatise on the Law of Practice, entitled, "An Elementary View of the Proceedings in an Action at Law," distinguished by simplicity, correctness, and condensation, and calculated to give students a perspicuous view of an extremely dry and troublesome subject. This also has become a standard book. In 1836, he wrote another little work—one upon Patent Law, explanatory, in a practical way, of a statute which had just before been passed, and had effected important alterations in that department of law. He told me that "he did not like to throw a chance away," and this "might possibly get him some briefs in Patent cases;" but I suspect that in this he was disappointed. In the same year he and I occupied our long vacation in preparing together a work entitled "Select Extracts from Blackstone's Commentaries, carefully adapted to the use of schools and young persons." We both took great pains with this book, and it has had a large sale: but for some whimsical reason or other, he would not allow his name to appear, though particular in retaining a share in the copyright.

Neglected and discouraged though he was, he continued to prosecute his studies with patient energy, appearing to me scarcely ever to spend an idle moment. He attended very frequently the Courts at Westminster, and on returning to chambers would spend the rest of the day in reading the constantly-accumulating Reports, and noting their more important contents in his favourite text-books. He constantly sat up till a very late, or rather early hour in the morning, and would frequently, on awaking, lie reading in bed till noon, when he would rise and take a sparing breakfast. I recollect calling upon him one gloomy day in December, about the time of which I am writing, to ask him to accompany me home to dinner, as he generally did once or twice a-week. He suffered a martyrdom from tooth-ache; and on this occasion had passed a miserable night from that cause, not having slept at all, and his swollen face betokened the violence of the fit. He had, nevertheless, got up much earlier than usual, to oblige one of his friends, for whom he had promised to draw some very pressing and difficult pleadings, which he was finishing as I entered. When he had despatched his clerk with them, he requested me to sit down and take a cup of tea with him, as he was suffering, both from pain, and fatigue, andennui. I never saw him in so desponding an humour. He promised to dine with me on the morrow, provided I would sit with him for an hour "gossiping," for he said that he could not sleep, he could not sit still, he could not read or write. I complied with his request, and stayed with him a long time. In the course of conversation, I recollect him saying, that "He supposed he was not to get on in the law; that he could not fight against the want of a connexion." I reminded him that it was surely premature to hold such language, and that he must bide his time,—when he interrupted me by saying, shaking his head, "Ah, but while the grass grows the steed starves." Presently he said, rather suddenly, "Should you be surprised to hear of my entering the church?" "The church!" I echoed with surprise.—"What do you see so wonderful in the notion of my going into the church?" said he gravely. "Do you think me unfit for it?"—"Not at all; but what I wonder at is, that you should dream of quitting the bar."—"Why not, if I find that it will not afford me a living? Let me tell you, that I am very partial to the study of Divinity, and have read a good deal of it, much more than you would suppose. I think I should like composing sermons, though it is very possible that they might not be popular; and I suppose you will not deny that Divinity is a nobler study than law?" He said much more in the same strain, which led me to believe that the subject had for some time occupied his thoughts, and that he had begun seriously to contemplate quitting the bar—at all events, if another year should leave him as little likely to succeed in obtaining practice, as that which was on the eve of closing. Many of even his intimate friends were unaware of his partiality for Divinity, and the extent to which he had studied it; for he was very reserved on such matters.

I once told him that I had read the whole, of "Pearson on the Creed;" at which, in his usual cold dry way, he replied, "So have I, and very carefully. I liked it much. And I'll tell you another book that I have read still more carefully, both in Latin and English—Mosheim's 'Ecclesiastical History.'" I have heard him say the same of Hooker's "Ecclesiastical Polity." We have often discussed the merits of Jeremy Taylor, Barrow, and South; the last of whom was a favourite of his. He had a surprising knowledge of the Old and New Testaments. One of his oldest and ablest friends, and whom he appointed one of his executors, recently alluded, in conversation with me, to this circumstance, adding, "Smithreadthe Bible as few but he could read it; andrememberedit, as very few but he could remember it." I have occasionally myself had evidence of his exact knowledge of very recondite portions of the Old Testament; but, as already intimated, he was always cautious and sparing in scriptural allusions or quotations. Since writing the foregoing sentences, a learned friend has informed me, that Mr. Smith, about two years before his death, had entered into a prolonged and ardent discussion with him on the subject of theApostolical Succession, insisting that no one who did not assent to that doctrine, was in reality, or could be conscientiously, a minister of the Church of England. Again and again, during a considerable interval of time, whenever they met, Mr. Smith pertinaciously renewed the discussion,—his friend for some time doubting whether Mr. Smith had any other motive than to amuse himself with the matter as one of mere logical exercise, but being at length satisfied that he was sincerely expressing his own opinions. To a brother of this gentleman, Mr. Smith became closely attached, on discovering the extent and depth of his knowledge of divinity, a subject on which they conversed whenever they could, Mr. Smith exhibiting, on all such occasions, the utmost zest and energy. I have already intimated the extent of his acquaintance with general literature; to which it may be here added that he possessed a correct and very extensive knowledge of history, ancient and modern. He knew it,and its true uses; and was equally conversant with its minute details, and its general scope and bearing, as illustrative of the practical operation of political principles and doctrines. He always, in short, appeared to me to be a man, whose first anxiety in all matters was to obtain a thorough knowledge of details, of facts; and then experienced delight in contemplating and reflecting upon them with a view to the discovery or detection of some leading principle of action or conduct involved in them. Such grave matters, however, did not alone occupy him; for I never saw a more eager and indiscriminate reader of even the ephemeral trash loading the shelves of circulating libraries. Scarcely a novel, play, or magazine appeared, which he did not take up, and, whenever they happened to be mentioned, show as complete a knowledge of them as if they had been worthy of it. I have often laughed at him on these accounts; he generally receiving my sallies with a sort of piqued silence, or simply saying, "It amuses me." I think that this circumstance is well accounted for by Mr. Phillimore—that Mr. Smith's over-tasked mind found light and easy narrative, of any kind, a relaxation.

Early in the year 1835 appeared a work on legal education, in which was enforced the advantage to the student and practitioner, of early mastering, as so manynucleiof future legal acquisitions, a few of the "leading cases" in the Law Reports, which suggested to Mr. Smith the idea of writing a book under the name of "Leading Cases." He was engaged upon it from about the middle of 1835 till the early part of 1837. There was no book of the kind extant. The idea was felicitous; but much learning and judgment were requisite to work it out practically. Mr. Smith proved himself, however, fully equal to the undertaking. Though in 1835 and 1836 he composed and published, as we have seen, two other minor professional works, he was all the while quietly elaborating this more important performance, the first volume of which (in large 8vo) he published in March 1837. His planwas, to select from the recognised Law Reports some of the chief Cases which had been decided in the Common Law Courts, and which were of such superior importance as to have become "Leading Cases,"i.e.in his own words, "involving, and being usually cited to establish some point or principle of real practical importance." Each of these he made the basis of an elaborate disquisition, in which, to continue his own explanation, "in order that the consequences of each 'Case' might be understood, and its authority estimated as easily as possible,Notes" were "subjoined, in which were collected subsequent decisions bearing on the points reported in the text, and in which doctrines having some obvious connexion with them," were "occasionally discussed," ... "without allowing them to digress so far from the subject matter of the text, as to distract the reader's mind from that to which they ought to be subsidiary." It is difficult to speak in terms too highly commendatory of this masterly performance—one quite of a judicial tone of investigation—and which, immediately upon its appearance, arrested the attention of all persons competent to form an opinion on the subject, as a sterling and permanent addition to the highest class of legal literature, and entitled its author to be regarded as really a first rate lawyer. Almost all the judges, and the most eminent members of the bar, wrote to him in terms of warm respect and approbation; and to this moment evince the same appreciation of the excellence of the work by quoting it, not more frequently in the arguments of counsel than in the most elaborate judgments delivered by the bench. It is indeed difficult to know which most to admire—the great extent and unerring accuracy of his law, or the clearness and precision of his reasoning, rendering simple and easy of apprehension the most obscure and perplexing subjects. The "Cases" were selected with great judgment out of the many thousands contained in the Reports; and whether he confirms, or questions, or illustrates the doctrine established by the case upon which he is annotating, he exhibits the same modest freedom, masterly ease, accuracy, and subtlety of discrimination, distinctness of thought, and complete familiarity with the progress of legal decision. Every note, in short, is a model of legal analysis; and the style, also, is pure, simple, terse, and perspicuous. He dedicated this work to his former tutor Mr. Blick: and I recollect our having a long discussion upon the original terms of the dedication; which were these, "To Richard Granger Blick, Esq., this work is inscribed by his obliged friend and pupil." I suggested the insertion of the word "former," before "pupil:" without which, I said, it might appear that the work had been written by one still instatu pupillari. He was a man always difficult to convince of the impropriety of any thing on which he had once determined. He quitted my chamber unconvinced by what I had said: but the dedication afterwards appeared in accordance with my suggestion. I recollect being highly amused by the pertinacious ingenuity with which he defended his own view of the case. The fame of this work was not, however, confined to this country, but soon reached the United States of America, where it immediately met with the most flattering reception, and is at this moment accounted an established text-book, and quoted as an authority by their best writers and judges. I recollect Mr. Smith one day coming to me, and asking me, with a quaint mixture of mystery, pleasure, and embarrassment, if I would "be sure not to mention to any one what he was going to tell me:" and on my promising him that I would not, he showed me a letter which he had just received from that eminent American jurist, Mr. Justice Story, himself one of the most elaborate and successful, legal writers of his age, and whose works are continually cited by both Bench and Bar in their country, with the utmost respect in this country, in which are contained the following.

"I consider your work among the most valuable additions to judicial literature which have appeared for many years. The 'Notes' are excellent, and set forth the leading principles of the various cases in the most satisfactory form, with an accuracy and nicety of discrimination equally honourable to yourself and to our common profession. I know not, indeed, if any work can be found which more perfectly accomplishes the purpose of the author.... I hope that your life may long be spared, so that you may be able to devote yourself to similar labours for the advancement of the learning and honour of the profession." Alas! both Mr. Justice Story and Mr. Smith, each a great ornament to his country, died within a few months of each other. When I congratulated my friend on this encomium, from so competent and eminent a judge, he replied modestly—"Laudari à laudato virois certainly pleasing."

So great was the demand for this work, that Mr. Smith's publisher urged him to proceed as quickly as possible with the second volume, which he had, in his preface to the former one, announced his intention of doing, in the event of the first portion of his labours meeting with the approbation of the profession. He accordingly at once set to work upon the second volume; and although he was beginning to have serious calls upon his time, owing principally to his having accepted the appointment, in November 1837, of Common Law Lecturer to the Law Institution, such were his energy and industry, that by the 12th of May, 1838, he had succeeded in bringing out the first part of the second volume, which was fully equal in execution to the first. While, however, he was receiving with his usual modesty the congratulations of his friends on this solid addition to his reputation, he received a sort ofcheckmate, which embarrassed and utterly confounded him; occasioning him infinitely greater annoyance and mortification than he ever experienced in his life. A highly respectable firm of law booksellers, the publishers of his "Compendium of Mercantile Law," and to whom he had also offered the publication of his "Leading Cases," which they had declined, without the slightest intimation of any objection to the principle of selecting the "Cases," which he had explained fully to them, suddenly took it into their heads, that in thus selecting some few cases from "Reports" published by them, as mere texts for his masterly legal discussions, he had been guilty ofPiracy! and actually filed a bill in Equity against him and his publisher, to restrain them "from printing, selling, or publishing any copies of the first part of the second volume." I never saw Mr. Smith exhibit such intense vexation as that occasioned him by this proceeding: he felt at once his own honour impugned, and that he might have seriously compromised the character and interests of his publisher. Such, however, was the confidence in the justice of his case felt by the latter, that he resolved to resist this attack upon his own rights and those of Mr. Smith to the very last; and he did so, at his own expense, and with triumphant success. The Vice-Chancellor of England, (Sir Launcelot Shadwell,) after an elaborate argument, refused to grant the desired injunction—expressing his very decided opinion "that on the substance of the case, and on the conduct of the plaintiffs, (the publishers in question,) they were not entitled to the injunction which they had asked." Against this decision the plaintiffs immediately appealed to the present Lord Chancellor, Lord Cottenham, who, after another very elaborate argument, and taking time to consider, delivered a luminous judgment confirming the decision of the Vice-Chancellor, triumphantly vindicating the propriety of both author and publisher's conduct, and supporting the right which Mr. Smith had thought proper to exercise; and his lordship dismissed the appeal with costs.[5]Thus ended, what has always appeared to me a very absurd, and as the event proved, expensive experiment, on the part of the plaintiffs. Only one of them now carries on the business, and is a gentleman of such high respectability, and also liberality in his dealings with the profession, that I feel satisfied he had really very little part in this most unsatisfactory proceeding. Mr. Smith's right to continue his selections from the Reports, for the purpose of annotation, having been thus established, and the excellence and importance of his labours conspicuously made known (had that, indeed, been necessary) to the entire profession, he at once proceeded with, and in due time completed the remaining portion of the second volume; and for the sake of legal science, it is to be lamented that there this admirable work ended. Mr. Smith felt no exultation at the defeat of this most thoughtless and unjustifiable attack upon him, nor evinced any pleasure in the friendly congratulations showered upon him. His sensitive mind had, indeed, been thoroughly shocked by the imputation which had been sought to be fixed upon him; and the only feeling on the subject which he ever expressed to me, or appeared to entertain, was one of calm indignation. I must say that in this I think he was abundantly justified. He repeatedly told me that he should never write another book, for "that he had had quite enough of it." As it happened, he never did; nor do I think that he would ever have done so, even had his career not been cut short by death. Whenever works of solid interest and importance in general literature appeared, Mr. Smith was very eager to peruse them, and seldom failed in doing so. I recollect him one day borrowing from me the first volume of Mr. Hallam's, "Introduction to the Literature of Europe in the 15th, 16th, and 17th Centuries," which was published alone early in 1837. He read it with great interest, and reviewed it very ably in this Magazine—his only contribution to its pages, in the No. for May, 1837.

He was about the same time reading largely in the State Trials, and frequently conversed with me upon their interesting character, wondering that they had so seldom been made really available for the purposes of amusing literature. He himself selected one of the trials as one possessed of peculiar capabilities, and intended to have completed it for this Magazine, but was prevented by his other labours. These lighter occupations, however, were soon interfered with by his appointment, as already intimated, to be Common Law Lecturer to the Law Institution in Chancery Lane, in November, 1837. This he owed entirely to his own merit, and the reputation which his writings had already gained him in the profession. I knew that fears were entertained by the directors of that important institution, lest his unpopularmannershould stand in the way of his usefulness as a lecturer; but aware of his rare intellectual and legal qualifications, they wisely resolved to try an experiment, which completely succeeded. I recollect accompanying him, at his own request, to deliver his first lecture, at the close of 1837. He was somewhat fluttered when he made his appearance before his audience, but at once commenced reading with apparent calmness, a very able introductory lecture, which soon arrested attention, and caused the committee who sat before him to congratulate themselves on their selection. He held this appointment till March, 1843, during which time he delivered a great number of lectures to increasingly attentive auditories; and as he read over several portions of them to me, I am able to say that, in my humble judgment, they were of the highest value, for their clear, close, and correct exposition of some of the most difficult branches of the law. He had a great talent for communicating elementary information; and even the most ignorant and stolid of his listeners could scarce avoid understanding his simple and lucid explanations of legal principles. One series of his lectures on "The Law of Contracts," has just (1846,) been published[6]verbatimfrom his MSS. as they were delivered, and fully justifies the opinion here expressed. He never designed them for publication, but solely for delivery to the attorneys' and solicitors' clerks, for whom the lectureship was founded; yet it is doubtful whether there be any book extant in which the difficult and extensive subject of contracts is, and that within the space of ten short lectures, comparably treated. The most youthful student, with only moderate attention, can acquire from it, in a short time, correct general notions calculated to be of infinite service to him, while able practitioners will regard it as at once concise, accurate, and practical, and evincing a thorough mastery of the subject in all its branches. In the words of his editor, "The lectures embody the chiefprinciplesof that branch of the law, and will be found equal to any of the former productions of the author for that clear, concise, and comprehensive exposition of his subject, which has characterised his works, and ensured the vitality of his reputation; popularising a branch of law which peculiarly affects the ordinary business of life; divesting it of the superfluities with which it is often encumbered; educing the great maxims, and broad rules by which it is moulded, and unravelling the perplexity in which an occasional conflict of judgments had from time to time involved it." I am not aware that Mr. Symonds had any personal knowledge of Mr. Smith, so that the more valuable is his concluding eulogium,—"That the profession already ranks him as among the most gifted of its writers, and most learned of modern lawyers." As an example of the ease and precision with which he elucidated the most difficult subjects, and brought them to the level of youthful capacities, I select the following brief passage on a most practically important subject, that of the "consideration" essential to support a valid simple contract, according to the civil law and that of England.[7]After explaining the doctrine of "Nudum pactum," he thus proceeds:—

"Now, with regard to the question,—What does the law of England recognise as a consideration capable of supporting a simple contract?the short practical rule" [after adverting to a well-known passage in Blackstone, for which he substitutes his own definition] "is, thatany benefit accruing to him who makes the promise, or any loss, trouble, or disadvantage undergone by, or charge imposed upon, him to who it is made, is a sufficient consideration in the eye of the law to sustain an assumpsit. Thus, let us suppose that I promise to pay B £50 at Christmas. Now there must be aconsiderationto sustain this promise. It may be that B has lent me £50; here is a consideration by way ofbenefitoradvantageto me. It may be that he has performed, or has agreed to perform, some laborious service for me; if so, here is a consideration by way ofinconveniencetohim, and of advantage to me at the same time. It may be that he is to labour for a third person at my request; here will beinconvenienceto him, without advantage tome: or it may be that he has become surety for some one at my request; here is achargeimposed upon him: any of these will be a good consideration to sustain the promise on my part....

"Provided there besomebenefit to the contractor, orsomeloss, trouble, inconvenience, or charge imposed upon the contractor, so as to constitute aconsideration, the courts are not willing to enter into the question whether that consideration beADEQUATEin value to the thing which is promised in exchange for it. Very gross inadequacy, indeed, would be an index of fraud, and might afford evidence of the existence of fraud; and fraud, as I have already stated to you, is a ground on which the performance of any contract may be resisted. But if there be no suggestion that the party promising has been defrauded, or deceived, the court will not hold the promise invalid upon the ground of mereinadequacy; for it is obvious, that to do so would be to exercise a sort of tyranny over the transactions of parties who have a right to fix their own value upon their own labour and exertions, but would be prevented from doing so were they subject to a legal scrutiny on each occasion, on the question whether the bargain had been such as a prudent man would have entered into. Suppose, for instance, I think fit to give £1000, for a picture not worth £50: it is foolish on my part; but, if the owner do not take me in, as the phrase is, noinjuryis done. Imayhave my reasons. Possibly I may think that I am a better judge of painting than my neighbours, and that I have detected in the picture the touch of Raphael or Correggio. It would be hard to prevent me from buying it, and hard to prevent my neighbour from making the best of his property, provided he do not take me in by telling me a false story about it. Accordingly, in the absence of fraud, mereinadequacyof consideration is no ground for avoiding a contract."[8]

Those who are acquainted with the practical difficulties of this subject, will best appreciate the cautious accuracy, and yet elementary simplicity and clearness, which characterised his teaching: he being then, be it remembered, little more than twenty-eight years of age.

His writings having thus led to his being placed in a situation where he had ample opportunities for exhibiting legitimately to the profession his great legal acquirements and abilities, it was not long before he became sensible of making his way, but gradually, nevertheless, into business. He had given up practising at sessions some time before, and resolved thenceforth to address himself entirely to civil business in London, and at the Assizes. The late Mr. Robert Vaughan Richards, Q.C.,[9]then one of the leaders of the Oxford Circuit, and himself an eminent lawyer and accomplished scholar, was one of the earliest to detect the superior qualifications of Mr. Smith, and lost no fair and legitimate opportunity of enabling him to exhibit his abilities, by naming him as an arbitrator, when the most important causes at the Assizes had been agreed to be so disposed of; and he invariably gave the highest satisfaction to both parties—the counsel before him, in arbitrations both in town and country, finding it necessary to conduct their cases as carefully as if they were before one of the astutest judges on the bench. Though many important causes were thus referred to him, and were attended by some of the most experienced members of the bar, I am not aware of any instance in which his decisions were afterwards reversed by, or even questioned before, the courts. When once he had obtained a fair "start" on his circuit, he quickly overcame the disadvantages of a person and manner which onemightcharacterise more strongly than as unprepossessing. Few cases of great importance were tried, in which Mr. Smith was not early engaged; and the entire conduct of the cause, up to the hour of trial, confidently intrusted to his masterly management. Amongst many others may be mentioned the great will case ofPanton v. Williams, and that of James Wood of Gloucester, and other well-known cases. He was, without exception, one of the ablestpleaderswith whom I ever came into contact: equally quick, sure, and long-headed in selecting his point of attack or defence with reference to the ultimate decision, skilfully escaping from difficulties, and throwing his opponent in the way of them, and of such, too, as not many would have had the sagacity to have foreseen, or thought of speculating upon. A recent volume of the Law Reports contains a case which, though his name does not appear in it, attests his appreciated superiority. It involved a legal point of much difficulty, and so troublesome in its facts as to have presented insuperable obstacles to two gentlemen successively, one under the bar, the other at the bar, and both eminent for their knowledge and experience. Their pleadings were, however, successfully demurred to; and then their client was induced to lay the case before Mr. Smith, who took quite a new view of the matter, in accordance with which he framed the pleadings, and when the case came on to be argued by the gentleman, (an eminent Queen's Counsel,) who hasrecently mentioned it to me, he succeeded, and without difficulty. "I never," said he, "saw a terribly bepuzzled case so completely disentangled—I never saw the real point so beautifully put forward: we won by doing little else than stating the course of the pleadings; the court holding that the point was almost too clear for argument." I could easily multiply such instances. Mr. Smith had a truly astonishing facility in mastering the most intricate state of facts; as rapidly acquiring a knowledge of them, as he accurately and tenaciously retained even the slightest circumstances. He seldom used precedents, (often observing that "no man who understood his business needed them, except in very special occasions;") and, though a rapid draughtsman, it was rarely, indeed, that he laid himself open to attack in matters of even mere formal inaccuracy, while he was lynx-eyed enough to those of his opponents. Whenhewas known to be the party who had demurred, his adversaries began seriously to think ofamending! When his cases were ripe for argumentin banc, he took extreme pains to provide himself with authorities on every point which he thought it in the least probable might be started against him by either the bench or the bar. I told him, on one of these occasions, that I thought "he need not give his enemy credit for such far-sighted astuteness."—"Oh," said he quickly, "never undervalue an opponent: besides, I like turning up law—I don't forget it, and, as Lord Coke says, it is sure to be useful at some time or another." In court, he was absorbed in his case, appearing to be sensible of the existence of nothing else but his opponent and the bench. He was very calm, quiet, and silent, rarely, if ever interrupting, and then always on a point proving to be of adequate importance. He did not take copious or minute notes on his brief, but never missed any thing of the least real significance or moment. When he rose to speak, his manner was formal and solemn, even to a degree of eccentricity calculated to provoke a smile from the hearers. His voice was rather loud and hard, his features were inflexible, his utterance was exceedingly deliberate, and his language precise and elaborate. His motions were very slight, and, such as he had, ungraceful: for he would stand with his right arm a little raised, and the hand hanging down passively by his side for a long time together, except when a slight vertical motion appeared—he, the while, unconscious of the indication—to show that he was uttering what he considered very material. When a question was put to him by the judges, he always paused for a moment or two to consider how best he should answer it; and if itcouldbe answered, an answer precise and pointed indeed he would give it. He afforded, in this instance, a contrast to the case of a gentleman then at the bar, about whom he has often laughed heartily with me. "Whenever," said he, "the judges put a question to ——, however subtle and dangerous it may be, and though he evidently cannot in the least degree perceive the drift of it, before the words are out of their mouths, he, as it were, thrusts them down again with a confident good-humoured volubility, a kind of jocular recklessness of law and logic, which often makes one wonder whether the judges are more inclined to be angry or amused; nay, I have once or twice seen one of them lean back and laugh outright, poor —— looking upon that as an evidence of his own success!" How different was the case with Mr. Smith, is known to every one who has heard him argue with the judges. Nothing consequently could be more flattering than the evident attention with which they listened to him, and most properly; for he never threw away a word, never wandered from the point, and showed on all occasions such a complete mastery of his facts, and such an exact and extensive knowledge of the law applicable to them, as not only warranted but required the best attention of those whose duty it was to decide the case. His manner was very respectful to the bench, without a trace of servility; and to those associated with him, or opposed to him, he was uniformly courteous and considerate. When he had to follow his leader, or even two of them, he would frequently give quite another tone to the case, a new direction to the argument, anddraw his opponents and the judges after him, unexpectedly, into the deeper waters of law. He was also distinguished by a most scrupulous and religions fidelity and accuracy of statement, whether of cases or facts, and documents, especially affidavits. The judges felt that they might rely upon every syllable that fell from him; that he was too accurate and cautious to be mistaken, too conscientious to suppress, garble, mislead, or deceive, with whatever safety or apparent advantage he might have done so. I have heard him say, that he who made rash and ill-considered statements in arguing in a court of justice, was not worthy of being there, and ought to be pitied or despised, according as the fault arose from timidity and inexperience, or confirmed carelessness or indifference, or fraudulent intention to deceive. It was in arguing before the courtin banc, that Mr. Smith so much excelled; being equally lucid in stating and arranging his facts, logical in reasoning upon them, and ready in bringing to bear on them the most recondite doctrines of law. He was certainly not calculated to have ever made a figure at Nisi Prius; yet I recollect one day that one of the present judges, then a Queen's Counsel, was talking to me in court as Mr. Smith entered, and said, "What think you? your friend Smith has been opposing me to-day in a writ of inquiry to assess damages in a crim. con. case." I laughed. "Ay, indeed,—I thought myself that if there was a man at the bar more unfit than another for such a case, it was Smith; but I do assure you that he conducted the defendant's case with so much tact and judgment, that he reduced my verdict by at least £500! He really spoke with a good deal of feeling and spirit, and when the Jury had got accustomed to him, they listened most attentively; and the result is what I tell you."

Following the course of his professional progress, in 1840 Mr. Smith was appointed a revising barrister for one of the counties on his circuit, by Mr. Baron Alderson, who was personally a stranger to him, and named him for the office solely on account of his eminent fitness for the post. He held it for several years, giving unmixed satisfaction to all parties, until precluded from further retaining it, in reference, I believe, to a rule of etiquette respecting seniority, prevailing at the bar of the Oxford circuit.

I recollect that, on one occasion, while he was waiting, apparently in vain, for the chance of professional employment, and not long before the occurrence of that moment of despondency already mentioned, when he contemplated quitting the profession, he and I were walking in the Temple Gardens, and he said, "Now, if I were to choose my future life at the bar, I should, of all things, like to have, and should be delighted with, a first-rate pleading business; not made up of many petty things, but of a few very important cases,—of 'heavy business,' in short. I feel that I could get on very well with it, and that it is just the thing suited to me. It would exercise my mind, and also secure me a handsome income, and, before long, an independence. What I should dothenI don't know." His wishes were amply gratified a few years afterwards, as the reader must have already seen. So rapidly, indeed, did the calls of private practice increase upon him, that he was forced, early in 1843, to resign his lectureship at the Law Institution, having, in fact, got fairly into the stream of his desired "first-rate pleading business" to an extent which heavily taxed both his physical and mental energies. Whatever was brought to him, he attended to thoroughly, never resting till he had completely exhausted the subject, and contemplated it from every point of view. Even at this time, however, it would be incredible to what an extent he obliged his friends at the bar, principally by preparing for them arguments, and sketching for them "opinions" on their cases, and these, too, generally of special difficulty and importance. Some of the most admirable arguments delivered by others of late, at the bar of the House of Lords, had been really prepared by Mr. Smith. In one instance, indeed, I recollect hearing the ablest living lawyer and advocate mention, that in a particular cause of great magnitude, not having found it possible even to open his ponderous brief before he was called uponto argue, he had time, before he rose, barely to glance over a very brief "epitome" of the facts, and of thereal, though unsuspected point in which the case ought to be decided, which had been prepared for his assistance by Mr. Smith. In confident reliance upon his accuracy in matters both of fact and law, the counsel in question boldly opened the case, implicitly adopting, and ably enforcing Mr. Smith's view of it, and succeeded in obtaining the judgment of the House. Mr. Smith never spoke, however, of these his subsidiary labours to others, nor liked ever to have any allusion made, to the subject. It was impossible that he could get through all this business without sitting up during most of the night; and I know that, for the last three or four years of his life, he was rarely in bed before two, and sometimes three, and even four o'clock, having to be, nevertheless, at Westminster or Guildhall as early as ten o'clock, or half-past nine, on the ensuing morning. While thus arduously engaged, he kept a constant eye upon the progress of the decisions of the various courts, as bearing upon his "Mercantile Law," and "Leading Cases," interleaved copies of which always lay on his table before him, and received almost daily MS. additions. Thus it was that he was able, in 1841 and 1843, to present new editions of his "Leading Cases," and "Mercantile Law," greatly enlarged and improved, and in many instances, especially in the "Leading Case," entirely remodelled. Nor was he, with all this, so absorbed as to forget literature; for, amidst his piles of opened law-books, you might often see a well-used copy of some classic English, French, Spanish, or Italian author, either prose or poetry, which he would read with equal zest and attention, as his pencil-marks in such volumes even now attest. As for "Don Quixote", and "Gil Blas," I really think he knew them almost by heart, in the originals. He was also very fond of Tacitus, Cicero, and Demosthenes, from all of whom, as well as the other leading classics, but especially the two latter, he could quote to a surprising extent, and with signal accuracy—a fact well known to all his friends. Of this, indeed, Mr. Phillimore[10]has given a striking instance, in his sketch of Mr. Smith in the "Law Magazine." After observing that "his memory was, indeed, astonishing, and the feats which he performed with it were incredible; that the writer had heard him repeat, successively, scene after scene from a French vaudeville,—the Record in an Action filling up the "&c.'s," and a passage from a Greek orator, without the least apparent difficulty or hesitation," Mr. Phillimore proceeds to say, that the passage in question "was one of the finest in the Greek language, being in the speech of Æschines, which the most celebrated effort of the genius of Demosthenes was required to answer; when, after adjuring the Athenians not to raise a trophy to their own loss and shame, nor awaken in the minds of their confederates the recollection of their misfortunes, he proceeds—'ἀλλ' έπειδὴ τοις σώμασιν οὐ παρεγἐνεσθε, ἀλλὰ τᾶις γε διανοίαις αποβλεψατ' αὐτῶν ἐις τὰς συμφορασ,' &c., down to the words, 'ἐπισκὴπτοντας μηδενι τρόπῳι τὸν τῆς ἑλλάδυς αλειτήριον στεφανοῦν,' the writer well remembering that Mr. Smith insisted particularly on the extraordinary force and beauty of the word, 'ἐπισκὴπτοντας.'" I, also, have often heard him quote long passages from the Greek dramatists, particularly from "Aristophanes," reallyimpromptu, and with as much facility and vivacity as if he had been reading English. I have already intimated that he read many of the new publications of the day. One of these was Mr. Macaulay's "Lays of Ancient Rome," with which he was much amused, saying that "some of them were very clever and spirited;" and, after reading them, he sate down one evening and wrote a humorous parody on them, which he showed me, entitled, "Lay of Gascoigne Justice," prefaced by an "Extract from a Manuscript of a Late Reporter," who says, "I had observed numerous traces, in the old reports and entries, of the use ofRhythmin the enunciation of legal doctrines; and, pursuing theinvestigation, I at length persuaded myself that, in the infancy of English law, the business of the court was transactedin verse, or, at least, rhythm, sometimes without, but on grand and solemn occasions with, the aid of music; a practice which seems to have been introduced by the ecclesiastical advocates." After a humorous argument in support of this notion, he concludes: "The following attempt to restore certain of theseLays of Ancient Lawis conceived, as the original lays themselves probably were, partly in bad English, partly in Dog-Latin." Then follows the "Lay of Gascoigne Justice, Chanted by Cooke and Coke, Serjeants, and Plowden, Apprentice in the Hall of Serjeants' Inn,A.D., 15—." The subject of the Lay was a certain highway exploit of Prince Harry, Poins, and Peto. Poins gets into trouble, being brought incontinently before Gascoigne Justice, "presiding at the Bailey." The concluding verses contain a just satire on certain gross defects in the administration of criminal justice, which have been only very recently remedied.

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