Blackwood's Edinburgh Magazine - Volume 61, No. 376, February, 1847

"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, that any 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 a consideration to sustain this promise. It may be that B has lent me £50; here is a consideration by way of benefit or advantage to 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 of inconvenience to him, 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 be inconvenience to him, without advantage to me: or it may be that he has become surety for some one at my request; here is a charge imposed upon him: any of these will be a good consideration to sustain the promise on my part....

"Provided there be some benefit to the contractor, or some loss, trouble, inconvenience, or charge imposed upon the contractor, so as to constitute a consideration, the courts are not willing to enter into the question whether that consideration be adequate in 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 mere inadequacy; 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, no injury is done. I may have 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, mere inadequacy of 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 one might characterise 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 of Panton v. Williams, and that of James Wood of Gloucester, and other well-known cases. He was, without exception, one of the ablest pleaders with 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 has recently 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. When he was known to be the party who had demurred, his adversaries began seriously to think of amending! When his cases were ripe for argument in 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 it could be 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, and draw 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 court in 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 do then I 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 upon to argue, he had time, before he rose, barely to glance over a very brief "epitome" of the facts, and of the real, 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. Phillimore¹⁰ 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," really impromptu, 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 of Rhythm in the enunciation of legal doctrines; and, pursuing the investigation, I at length persuaded myself that, in the infancy of English law, the business of the court was transacted in 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 these Lays of Ancient Law is 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.

 
"When Poins he spied, ho, ho! he cried,
        The caitiff hither bring!
We'll have a quick deliverance,
        Betwixt him and the King:
 
 
And sooth he said, for justice sped
        In those days at a rate
Which now 'twere vain to seek to gain,
        In matters small or great.
 

*       *       *       *

 
For sundry wise precautions,
        The sages of the law
Discreetly framed, whereby they aimed
        To keep the rogues in awe.
 
 
For lest some sturdy criminal
        False witnesses should bring—
His witnesses were not allowed
        To swear to any thing.
 
 
And lest his oily advocate
        The court should overreach,
His advocate was not allowed
        The privilege of speech.
 
 
Yet such was the humanity
        And wisdom of the law!
That if in his indictment there
        Appeared to be a flaw—
 
 
The court assigned him counsellors,
        To argue on the doubt,
Provided he himself had first
        Contrived to point it out.
 
 
Yet lest their mildness should perchance
        Be craftily abused,
To show him the indictment they
        Most sturdily refused.
 
 
But still that he might understand
        The nature of the charge,
The same was in the Latin tongue
        Read out to him at large.
 
 
'Twas thus the law kept rogues at awe,
        Gave honest men protection,
And justly famed, by all was named,
        Of 'wisdom the perfection!'
 
 
But now the case is different,
        The rogues are getting bold—
It was not so, some time ago,
        In those good days of old!"
 

It may be gathered from what has gone before, that Mr. Smith's mind was one of equal activity and strength. His physical energies might flag, but never those of his mind. He was always ready to pass from protracted and intense professional study and exertion, to other kinds of mental exercise—"from gay to grave, from lively to severe"—either reading general literature, or amusing himself with slight affairs such as the foregoing; or, as soon as a little leisure had recruited his spirits, entering with infinite zest into superior conversation on almost any topic that could be started. He was for a long time shy and distant to strangers; but was quite a different person at the tables, and in the company, of his old friends and companions. There certainly never sate at my table a man who, when in the humour, could supply for hours together such genuine fun and amusement as Mr. Smith. Our little children were always very glad to see him, for he was patient and gentle with them, and contrived really to entertain them. Towards ladies, his manner was always most fastidiously delicate and courteous. There was, if I may so speak, a smack of days gone by—a kind of antique and rather quaint gracefulness of demeanour and address, which I used frequently to contemplate with lively interest and curiosity. When he returned from dining out, to his chambers, he would light his candles, and, instead of going to bed, sit up till a very late hour; for not only had he much to get through, but was a bad sleeper. A few years before his death, he had become a member of the Garrick Club, which was ever after his favourite resort, and was also frequented by several other members of the bar. He was delighted to take a friend or two to dinner with him, and would entertain them most hospitably, and with increasing frequency, as his means became rapidly more ample. He was also fond of the theatres, taking special delight in comedies and farces, however broad, and even pantomimes. With what solemn drollery he would afterwards dwell on the feats of Clown and Pantaloon! I am here, however, speaking of several years ago; for latterly he said, "It was a very hard thing to find any thing to laugh at in a pantomime, however much one tried!"

During the years 1842, 1843, and 1844, his practice continued steadily increasing, and that, too, in the highest and most lucrative class of business—not only before special juries at Nisi Prius, and the Courts in Banc and in Error in the Exchequer Chamber, but in the Privy Council and the House of Lords. Before the last tribunal, in particular, he appeared as one of the counsel in the O'Connell case, on behalf of Mr. O'Connell and his companions. His time was now incessantly occupied, by day and night; his slight intervals of relaxation necessarily becoming fewer and fewer. His evenings, indeed, were almost always occupied with arbitrations, consultations, or preparing those pleadings and writing those opinions which his constant attendance in the Courts prevented his then disposing of. His friends saw with pain how grievously he was over-tasking his strength, and earnestly importuned him to give himself more intervals of relaxation—but in vain. For nearly two years before his death, his haggard countenance evidenced the direful havoc which he was making of a constitution never of the strongest. Sir William Follett and he were both sitting at the bar of the House of Lords, on one of the latest days of the hearing of Mr. O'Connell's case, each within a yard or two of me. Two death-doomed beings they looked, each, alas! having similarly provoked and accelerated his fate. On the same afternoon that Sir William Follett leaned heavily and feebly on a friend's arm as he with difficulty retired from the bar, I went home in a cab with Mr. Smith, who sate by me silent and exhausted, and coughing convulsively. I repeatedly conjured him to pause, and give his shattered health a chance of recovery, by retiring for a few months, or even for a year or two, from the excitement and wasting anxieties and exertions of business; but he never would listen to me, nor to any of his friends. "It is all very well," he said to me several times, "to talk of retiring for a while; but what is to become of one's business and connexion in the mean time? You know it will have melted away for ever." He had, however, been persuaded to consult a physician of experienced skill in cases of consumption; who, after having once or twice seen him, sent a private message to the friend who had prevailed on Mr. Smith to call upon him; and on that friend's attending the physician, he pronounced the case to be utterly hopeless; that it might be a matter of months, even; but he ought to be prepared for the worst, and apprised of his situation. His friend requested the physician to undertake that duty, assuring him of his patient's great strength of mind and character: but he declined. Mr. Smith spent the long vacation of 1844 with his brothers and sisters in Ireland. They were shocked at his appearance, and affectionately implored him not to return to England, or attempt to resume his professional duties; but in vain. While staying in Ireland, he regretted the fast flight of time, evidently clinging to the society of his brothers and sisters, to the latter of whom he was most devotedly attached; but bleak, bitter, blighting November saw him again established at the Temple, and fairly over head and ears in the business of the commencing term. He attended the courts as usual; went out in the evenings to arbitrations and consultations as of old; dined also at the Garrick as before, and sat up as late at nights as ever. We all sighed at this deplorable infatuation; but what could we do? He was a man of inflexible will, and a peculiar idiosyncracy. Remonstrance and entreaty, from the first useless, at length evidently became only irritating. Not a judge on the bench, nor a member of the bar, but regretted to see him persist in attending the courts; where he sat and stood, indeed, a piteous spectacle. He resolved on going the Spring Circuit in 1845, being retained in some of the heaviest cases tried there. Shortly before this, the friend already referred to resolved to perform the painful duty of telling him, that in his physician's opinion there was not a ray of hope for his recovery; a communication which he received with perfect calmness and fortitude. To his brother's entreaties, about the month of June, that he would either go abroad, accompanied by one of his brothers or sisters, or allow the latter to come and live with him, in a house a little removed from town, he steadily turned a deaf ear. He evidently knew that it was useless; and spoke of his desperate state as calmly as he would have done in referring to the case of a mere stranger. It is believed that his sole reason for refusing to permit his sister to come over, was his fond and tender regard for her—a reluctance to permit her to witness him waste away, injuring in vain her own health and spirits. About this time, he said to his brother very quietly, but sadly, that "he feared his sisters would soon have to bear a severe shock!" He sat in his chambers, which were within only a few yards' distance from the Temple Church, on the day of Sir William Follett's funeral. He heard the tolling of the bell, and from his window¹¹ he could have seen much of that solemn ceremonial. What must have been his feelings? This was on the 4th July; and five days afterwards, (viz. on the 9th,) poor Mr. Smith appeared, I believe for the last time in the Court of Exchequer, during the post-terminal sittings in Trinity vacation, to argue a demurrer! I was present during part of the time. What a dismal object he looked, while addressing the Court! I think we drove up to the Temple together. He had argued the case of Bradburne v. Botfield, (reported in 14 Meeson and Welsby, 558,) the last time, I believe, that his name appears in the Reports. It was a very nice question, as to whether certain covenants in a lease were joint or several: his argument was successful, and the Court gave judgment in his favour. The next day he said to me, speaking of this occasion, "The judges must have thought me talking great nonsense: I was so weak, that it was with very great difficulty I could keep from dropping down, for my legs trembled under me all the time violently, and now and then I seemed to lose sight of the judges." Yet his argument was distinguished by his usual accuracy, clearness, and force of reasoning. Nobody could prevail upon him to abstain from going the summer circuit. He went accordingly, and unless I am mistaken, held several heavy briefs. When the northern circuit had closed, I joined my family at Hastings; and found that poor Mr. Smith was staying alone at the Victoria Hotel, St. Leonards. I called upon him immediately after my arrival. His appearance was truly afflicting to behold. Consumption had fixed her talons still deeper in his vitals. He sat in an easy chair, from which he could not rise without great effort; and he expressed himself as delighted that I, and another of his oldest friends, happened to have established ourselves so near him. He was quite alone—no friend or relative with him; several briefs, &c. lay on his table, together with the most recent numbers of the Reports, several law-books, and works on general literature. A Bible also lay in the room, with several papers placed within the leaves. Nothing could exceed the attention paid him by the landlady and her daughter, and the servants; but he gave them very little trouble. His cough was much aggravated, as were the wasting night-sweats; and he could walk only a few steps without assistance. Soon after having got to Hastings, I was summoned away to attend a court-martial at Leeds, which kept me there for upwards of a fortnight. On my return, Mr. Smith expressed a lively anxiety to hear from me a detailed account of "how the military managed law." He seemed never tired of hearing of those "curious proceedings," as he styled them. I spent nearly two hours a day with him during the remainder of my stay, accompanying him in long drives whenever the weather permitted. Weak though his body was, his mind was as active and strong as ever. I saw several as heavy "sets" of papers, from time to time, forwarded by his clerk from London, according to Mr. Smith's orders, as I had ever seen even in his chambers. When I implored him to send them back, and take a real holiday, he answered simply, "No; they must be attended to,"—and he did so: though I saw him once unable from weakness to lift a brief from his knees to the table. I never beheld so calm and patient a sufferer. He never repined at the fate which had befallen him, nor uttered a word showing impatience or irritability. When we drove out together, he generally said little or nothing the whole time, lest his cough should be aggravated, but was very anxious to be talked to. Once he suddenly asked me, when we were driving out, "Whether I really ever intended to permit him to see the sketch of Follett, which I was preparing." I parried the question, by asking him, "Whether he thought Sir William Follett a great lawyer."—"Certainly," said he, "if there be such a character as a great lawyer. What thing of importance that only a great lawyer could do, did not Follett do? He necessarily knew an immensity of law; and his tact was a thing quite wonderful. I was a great admirer of Follett.... I once heard him say, by the way, that either he had applied for the place of a police magistrate, or would have accepted it, if it had been offered, soon after he had come to the bar; so that it is quite a mistake to suppose that he was all at once so successful.... And I can tell you another little fact about Follett: though perhaps no man took so few notes on his brief, during a cause: this was not always so; for, when he first came to the bar, he took most full and elaborate notes of every case, and prepared his arguments with extreme care. I have seen proofs of this." Shortly before his leaving town, he purchased a copy of Thirlwall's (the Bishop of St. David's) History of Greece, in eight volumes, "to read over at the sea-side;" and he did so: telling me that "he liked it much,—that it had told him many things which he had not known before." This copy his brother presented to me after Mr. Smith's death, and I value it greatly. One morning I found him much exhausted; but soon after I had taken my seat, he said, "You can oblige me by something, if you will do it for me. I recollect that there is generally lying on your table, at chambers, 'Bell's Principles of the Law of Scotland.' Now I am very anxious to read the book, as I expect to be in one, if not two, Scotch appeal cases, in the House of Lords, next session!—Will you do me this favour?" Of course I immediately procured the book to be forwarded to him, and it afforded him uncommon pleasure for many days. He read it entirely through with deep attention, as his numerous pencil marks on the margin attest, as well as several notes on the fly-leaf, of leading points of difference between our law and that of Scotland. At page 35, §76, the text runs thus:—"Tacit acceptance may be inferred from silence, when the refusal is so put as to require rejection, if the party do not mean to assent; as when a merchant writes to another, that he is against a certain day, to send him a certain commodity, at a certain price, unless he shall previously forbid." Opposite to this, Mr. Smith has written in pencil, "Surely one man cannot throw the duty of refusal on another, [in] that way?" In the course of a little discussion which we had on this subject, I said, "Suppose the parties have had previously similar transactions?"—"Ah," he answered, "that might make a difference, and evidence a contract to the effect stated; but as nakedly enunciated in the text, I think It cannot be the law of Scotland, or law any where." He made many interesting and valuable remarks from time to time on Scotch law, and expressed a high opinion of the work in question, referring to every portion of it as readily as though it had been his familiar text-book for years. I often found him reading the numbers of the Queen's Bench, Common Pleas, and Exchequer Reports; and he once said, "I have a good many arrears to get through, in this way, before the beginning of term!" One day I saw a prodigious pile of law papers lying on his table, which had just arrived from London. "Why, what are these, my dear Smith?" said I earnestly—for he lay on the sofa in a state of miserable exhaustion. After some minutes' pause, he replied, "It is a very troublesome case. I have to reply or demur to some very harassing pleas of ——."—"But why not postpone them till near the end of October?" "When I am not fatigued, papers amuse me, and occupy my attention." I offered to him my services. "No, thank you—it would fatigue me more to explain the previous state of matters, with which I am familiar, than to draw the pleadings"—and he did it himself. On another occasion, I saw him sitting in his easy chair, deadly pale. When I had placed myself beside him, he said in a faint tone, but calmly and deliberately, "This morning a very serious thing has happened to me," and he mentioned a new and very alarming feature in his complaint, which, alas! fully justified his observation; and during the day he allowed me to request Dr. Duke, who was attending a patient in the hotel, to see him. He did—and on quitting him, told me that of course the case was hopeless; that his friends should be sent for, and he would not answer for his life for a few weeks, or even days. Two or three days afterwards, Dr. Duke saw him again, and had left him only half-an-hour when I called. He was writing a letter to an old friend (one of his executors,) and his face wore an expression of peculiar solemnity. Laying down his pen, and leaning back in his chair, he gently shook my hand, and, in an affectionate manner, said, "Warren, I have just had a startling communication made me by Dr. Duke; he has told me plainly that I cannot live much longer,—that recovery is utterly out of the question,—and that I am nearer death than I suppose." After a pause, I said, "He has been faithful, then, my dear Smith. It was his duty; and I trust he did it in a prudent manner."—"Perfectly," he replied. Profound gloom was in his features, but he was perfectly calm. Presently he said, covering his face with his attenuated hand, "I have none to thank but myself; I have killed myself by going the last circuit, but I could not resist some tempting briefs which awaited me! I now regret that I did not allow my sister to come over, months ago, and go with her to the South of France; but of course wishing now is useless." Again I entreated him to allow her to be sent for. "My dear Warren," said he very decisively, "you and B. have often asked me to do so. I beg you to do so no more. I have private reasons for declining to follow your advice." His voice slightly faltered. His "private reasons" have already been adverted to—they were, his tender love for one whom he would not shock by showing himself to her in the rapid progress of decay! From that day I never saw the semblance of a smile upon his face, nor any appearance of emotion, but only of solemn thoughtfulness. A few days afterwards I said to him, "Well, if it be the will of God that you should never return to your profession, it is certainly consolatory for you to reflect how great a reputation you justly enjoy at the bar, and in how short a time you have gained it. Your name will live." He made no answer for some minutes, but shook his head, and then said, "I have done nothing worthy of being remembered for; but you are very kind for saying so." Even after this, the mail every now and then brought him fresh "papers" from town; and Miss ——, the daughter of the landlady, and who attended him with the utmost solicitude, one evening burst into tears, as she showed me a fresh packet; adding, "It is really heart-breaking to have to take them in to him: he is so weak that he feels a difficulty in even opening them!" It was so, indeed! The two old friends whom he had named as executors, came down to St. Leonards two or three times, and spent several days with him. As the time for our family's return to town approached, he evidently regarded it with uneasiness, and almost daily said, "Must you really go by the 15th?... And —— is also going before that: then I shall be left quite alone, and shall certainly feel dull." A friend of mine, a lady, who resides near St. Leonards, having requested me to introduce her to him, in order that when we were gone she might come and see him, I asked him if he would allow me to do so? "Indeed," said he, faintly, and with a slight flush, "I should not only feel it a compliment, but extremely kind." The lady in question accordingly drove down very kindly almost daily, bringing him grapes and flowers, which he said he felt to be a very delicate attention: and so anxious was he to evince his sense of her courtesy, that he insisted on driving, when very feeble, on a bleak day, to leave a card at the lady's residence, nearly three miles off, with his own hand. When I took my leave of him, he seemed, I thought, a little moved; but said calmly, "If the weather breaks up, I shall return to the Temple: and it is possible that I may take lodgings in another part of the town; but to court I must go, at whatever inconvenience—for I have cases there which I must personally attend to!"