THE

Law Magazine & Law Review:

OR,

QUARTERLY JOURNAL OF JURISPRUDENCE.

No. II.

ART. I.-MEMORIALS OF HIS TIME, BY HENRY COCKBURN.

TH

8vo. pp. 470. Blacks, Edinburgh. 1856.

HE book of which this is the somewhat affected title, consists of what others have termed "Reminiscences of Edinburgh Society and Individuals," by Lord Cockburn, whose very indifferent "Life of Lord Jeffrey" had given him but a moderate rank among biographers; not that there was more to be urged against it than the want of judgment, which made him execute his design of exalting his subject by publishing half a volume of letters to women and children, amiable and natural no doubt, but the very last productions of his pen that Lord Jeffrey would have desired to be preserved. The political—that is the party-prejudice under which the book was written, formed another ground of complaint; and the same objection may certainly be taken to the work before us. Our office keeps us from weighing all the defects or merits of the work, unless in so far as it deals with legal subjects; and we therefore shall not stop to remark upon the favour with which it has been received by the public, and which it owes chiefly to the insatiable desire of readers to see a page filled with proper names; a desire so strong with some, that we have known a person of great learning and eminence declare he could read the "Court-Guide" with more interest than many of the books which are published.

VOL. I. NO. II.

2 H

It is, however, only fair to observe that Lord Cockburn has given an account of the times in which he lived, deserving of attention, and conducive to instruction as well as entertainment. The defects under which he labours as the historian of those times, are indeed very material in their operation upon his credit; -he is a zealous partisan, and he is a dealer in anecdotes. Both these circumstances have the same tendency; they make him, quite unknown to himself, both colour and exaggerate his facts. Although he had not become a judge when he set down the particulars which are now published under his name, it would have been well for him when he left them, apparently for publication, to reflect that after he assumed the judicial character, he must be deemed to have re-affirmed, by not altering or modifying the sentences which he had pronounced on so many individuals, as well as on bodies of men. Thus, to take but a single instance: he compares an eminent judge to the infamous, and in every way execrable Jeffries; and it goes out to the world that this was the deliberate opinion of another judge who afterwards sat in the same court.

Lord Cockburn was a person of great merit in his political conduct, because, although nearly connected with Lord Melville, his uncle by marriage, and to whose interest his father owed the place of Baron of the Exchequer, and thus certain himself of professional advancement, had his opinions agreed, or only not very widely differed from those of the Tory party, he nevertheless connected himself with the Whig Opposition, and only consented to take an office under the Tory Government of 1807, on the distinct understanding that it was given to him, not only professionally, but in consequence of his relationship to the ruling family of Dundas. He held it till 1810, when he was removed, in consequence of his opposition vote in the Faculty of Advocates. It is hardly necessary to observe, that the Whig party must have regarded the adhesion of one so circumstanced as a singular mercy; they must have deemed him " a brand snatched from the burning." But independently of this accidental circumstance, his excellent intrinsic qualitiesan amiable disposition, a strictly honourable mind, distinguished abilities as an advocate, a respectable station in the profession

were quite sufficient to make his allies highly prize their acquisition; and it must be added, that though nowise wanting in zeal, his good judgment ever kept him from the proverbial excesses of recent conversion. Through the long night of their exclusion from office, he remained with them steadily, and when day dawned after twenty years, he became first Solicitor-General, on Mr. Murray waiving his undisputed claims, and afterwards a judge. In the literary labours of the party he took but an inconsiderable share; he only contributed a few papers of somewhat obscure fame to their great journal. But he lived in close intimacy with all those eminent men whose exertions had so important an effect in establishing the influence of liberal opinions, and building up the power of the party upon the ruins of the Melville dominion.

On this great party revolution Lord Cockburn gives pretty much the same commentary which any other of the Whig persuasion would furnish, with the exception of his reference to Lord Melville, of whom he speaks, not in the language of a relative, but in terms strictly of truth and justice; and how distasteful soever these may prove to the remaining members of the party, they will be approved by all whom factious feelings do not blind. That there prevailed in Scotland, during the latter period of Lord Melville's ascendancy, much of the illiberal, it may almost be termed the persecuting spirit, which marked the intercourse of parties, more especially in provincial situations, after the beginning of the French Revolution, cannot be denied, any more than it can be doubted, that even before these dismal times, there was considerable intolerance of adversaries exhibited by those who had the influence of the Government on their side. But that Lord Melville himself was free from all such violence, and could only be blamed for having exerted too feebly his great power over his adherents to keep them from their favourite courses, must be admitted by all who are acquainted with the character of the man, and with the facts of the case. Lord Cockburn does him justice in this respect, as well as in the more important matter of the charges brought against him, and which led to his impeachment-charges which present the most memorable instance of exaggeration, if not of absolute

invention, to be found in the whole history of faction, and which have long since been abandoned by all save the few surviving zealots of superannuated party. But Lord Cockburn omits the expression of an opinion which all must entertain who now calmly look back to the history of those times, uninfluenced by the heats formerly prevailing on both sides; we mean the reprobation due to the Government of 1807 for their spiritless conduct in shrinking from the fellowship of Lord Melville after his triumphant acquittal. Whoever reads the letters published by Mr. Twiss in his excellent "Life of Lord Eldon," and those given by Lord Mahon (now Lord Stanhope) as a supplement to one portion of that correspondence, while he draws inferences from both publications extremely unfavourable in some respects to Lord Eldon, in others to Mr. Pitt, will come to a conclusion most favourable to Lord Melville, whose manly understanding and truly statesmanlike views of the great questions raised by the king's objection to Mr. Fox, appear in marked contrast to the selfish and intriguing propensities of his colleague. But another opinion will be suggested by the correspondence with Lord Eldon; that the exclusion of Lord Melville from the restored Tory Government was a paltry sacrifice to fear of their adversaries in Parliament, and of the clamour which they would excite in the public. Recollecting that his son formed a part of the administration, we can only suppose that the exclusion was acquiesced in upon the speculation of a mitigation of the public prejudice enabling them afterwards to be just towards him, and consult their own best interests. The reign of clamour which soon after began in the Duke of York's case may possibly have still further postponed the accomplishment of what we are bound to presume were their wishes; the fact, however, is, that Lord Melville survived above four years the re-establishment of the Tory Ministry, and remained as much removed from power as if he had been condemned upon his trial. To this point we conceive Lord Cockburn should have plainly adverted, in defiance of his party attachments.

We have referred to the intolerant spirit of the times that succeeded the commencement of the French Revolution as not at all peculiar to Edinburgh, or in general to Scotland. Of this

Lord Cockburn appears not to have been aware, and his account of the excess to which it proceeded there, is tinged with no little colouring, and marked with considerable exaggeration. Thus when he speaks of a test being presented by the ruling powers to men on their call to the Bar, and instances one, afterwards at the very head of the profession (Mr. Cranstoun, since Lord Corehouse), as declining to give in writing his acceptance of it, and, therefore, being driven to prefer serving under a friend in his yeomanry, ordered to Ireland, we believe, from all we have been able to learn of this matter, that the written test is an invention of some party zealot who had imposed on Lord Cockburn, possibly a mistake on his lordship's part, by taking figurative expressions, or jocose caricature, literally—a mistake of which this volume presents many instances; while the military service and the Irish campaign, we have every reason to believe, originated in a reluctance to begin practice for a year or two after being called to the Bar, and a predilection for the life which was fitted to extend his knowledge of the world, under auspices peculiarly favourable to that plan. That the professional fortunes of all who in those times devoted themselves to the law, depended very much upon the favour of the ruling party, cannot, indeed, be doubted. When Lord Cockburn regards this as peculiar to the Scotch Bar, we take for granted that he never heard of such cases as that of Mr. Scarlett, kept for seven or eight years out of the rank to which he had all but a strict legal right, and this long after the first violence of party strife had passed away; or of the same thing happening to Messrs. Brougham and Denman, when all remains of such party spirit had ceased, and when, not only they, but many others, were injured in their profession, for no other reason than that these two gentlemen had honestly discharged their duty to a client whom the king chose to persecute. Nothing which Lord Cockburn, even with all his party colouring, relates of the injustice done to Scotch lawyers, is at all to be compared with this; and yet this was well known to every one, and had been again and again commented upon long before Lord Cockburn sat down to represent the reign of terror in Scotland as unexampled in all its particulars anywhere else.

We have taken these three