THE LAYS OF A LIMB OF THE LA W John Popplbstone ^^M -DITE.D Edmund B. V. Christian THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES THE LAYS OF A LIMB OF THE LAW. Several of the pieces included in this volume, under the head of "Leading Cases in Verse,'" had the advantage of appearing originally in Messrs. Gibson and IVeldon's Magazine, Law Notes, and are here reprinted by per- mission of the Editors. THE LAYS OF A LIMB OF THE LAW BY THE LATE JOHN POPPLES TONE FORTY YEARS TOWN CLERK OF STOURMOUTH EDITED TXlttb a ADemofr ano postscript EDMUND B. V. CHRISTIAN ! Law shall f sing, a?id what to Law belongs?'' — Crabbe LONDON REEVES & TURNER, 196 STRAND 1889 1 ?R P3 9 f A. CONTENTS. fAGE A Memoir of the Late Mr. John Poppi.estone . ix Leading Cases in Verse: — Ballade of Leading Cases I Miller v. Race 3 Peter v. Compton 6 Lickbarrow v. Mason . 12 Armory v. Delamirie . • 17 Paterson v. Gandasequi . . 24 Addison v. Gandasequi . . • 27 The Duchess of Kingston's Case . • 29 Cutter v. Powell . 40 Strath more v. Bowes • 43 Manby v. Scott 50 Scott v. Tyler . 59 Ashby v. White . 61 Wilkes v. Wood . • 67 Frost v. Knight • 74 VI Contents. Leading Cases in Verse {continued) :— Omichund v. Barker Calye's Case .... Smith v. Marrable . Cumber v. Wane Lays of the Law : — Ode to a Judge in Chambers Ballade of Old Law Books . The Splendid Six-and-Eightpence Legal Maxims, &c. My Client Sonnets on the Mortgagees . Old Father Antic, the Law . Ballade of the Honest Lawyer My Side-Bar Rule .... Postscript : On the Comedy of the Law Index PAGE 77 82 84 S 9 95 101 103 107 112 116 122 124 126 133 159 MEMOIR OF MR. JOHN POPPLESTONE. M E M O I R OF THE LATE MR. JOHN POPPLESTONE. He was an Attorney. — Bai: Ballads. Mr. Popplestone's career might well be the despair of a biographer. Its uneventfulness was complete. He kept no diary ; he corresponded with no public man ; he wrote, indeed, few private letters, and burnt those he received ; and, at least when I knew him, talked little of his past. Fortunately for our present purpose, it is sufficient to state that his history may be summed up in the line quoted above : he was an attorney. The world has been hard to attorneys. It has not been kind to our faults, and it has been more than a little blind to our virtues. It has persisted in under- estimating our services to mankind, and in over-esti- mating our remuneration. This, perhaps, could be borne, " for sufferance is the badge of all our tribe," and there are consolations in the hardest lot. But this is not the worst. Not content with a passing injustice, the B x Memoir. men of letters have combined to misrepresent us to posterity. A collection of hard sayings relating to our profession, from Dr. Johnson to the unjust judge men- tioned by Mr. James Payn,who translated "Nemo repente venit turpissimus " as " It takes five years to make an attorney," would fill a considerable volume ; more espe- cially if there were given in an appendix a list of the statutes which, under various plausible and benevolent- sounding titles, have been enacted to reduce our modest incomes. Even Mr. Payn himself, who imposes so many obligations on his readers, and is so tender to most of his dramatis persona, has agreed with the rest in misrepresenting "that branch of the law," " the members of which wear their own hair and are gentlemen by Act of Parliament." Our craft he blasphemes as a "gigantic system of imposture." " It is a calling," he says, " ex- pressly invented for the encouragement of dulness ! " A sense of personal injury may, perhaps, account for his bitterness. But, whatever the cause, our generation has read, and the next (if it is wise) will read his indictment ; and it is likely that, imitating the celebrated jury, some at least of his readers will be prepared to find us guilty upon the opening speech of the advocate, without troubling about the evidence. Of dulness in another sense the profession certainly cannot be acquitted. The monotony is fearful. Its members are emphatically not happy in that they have no history. Even at six-and-eightpence an hour, the task of endlessly arranging other people's quarrels, or transferring other people's property, is a burden, after the charm of novelty has gone. And probably no one will Memoir. xi be tempted to join the profession's overcrowded ranks by the record of the late Mr. Popplestone's career. Except for the necessary beginning and ending, the incidents of his life might almost be described in algebraical terms as to the n ih ' Mr. Popplestone was articled in London, and seems to have practised there with indifferent success for a short time, before a fortunate chance brought him to- Stourmouth. How far the lines entitled "The Splendid Six-and-eightpence " are a record of personal experience,, it is difficult to say • but, in default of other record, they may be accepted as autobiographical. It is to those early years in London that most of the verses contained in the following pages are to be attributed. Mr. Popple- stone had not been long in Stourmouth before he gained the public esteem, and was appointed to the office of Town Clerk, which he held — and magnified — until shortly before his death, a period of forty years. During all that time he was the pivot upon which turned the whole life of the town ; the confidential adviser of the more prominent townsfolk ; the confidant of every secret ; familiar with every family history and the title to all the property in the borough ; a vigilant guardian of municipal interests ; gently guiding the magistrates in their decisions and the corporation in its resolves ; the healer of more quarrels, the stifler of more promising litigation, than less conscientious professional brethren would, possibly, approve. Mr. Popplestone used to say that he had by nature all the qualities and defects necessary to the making of an attorney. For occasionally mislaying papers, and xii Memoir. complete illegibility of handwriting, he used to plead that he had licence by long usage of the profession. His general views upon his calling I find stated, with some conscious and intentional exaggeration, in a paper read by him, at the Stourmouth Mechanics' Institute and Athenaeum, and reported in the Stourmouth Mercury of February 8, 1855. From that report I take the following paragraphs, premising only that they are, I should say, rather in the style of the reporter than the lecturer. t: The Athenasum," says the Mercury, "■ was the scene on Thursday of an animated gathering to hear a lecture by our esteemed and respected Town Clerk, entitled, ■'On the Art of Being a Family Solicitor' — a subject which, naturally attractive to some, was made interesting to all by Mr. Popplestone's eloquence and humour. The chair was taken bythe Mayor (Mr. Alderman Brown), who, in a few appropriate and well-chosen words, intro- duced the lecturer. Among those present we noticed Dr. and Mrs. Franklin, Major, Mrs., and Miss Long .... and, indeed, the elite and gentry of the neigh- bourhood. " Mr. Popplestone commenced by reminding his hearers that some men were born kings, some lock- smiths, and, he added, it was fair to assume that, since solicitors were evidently a natural, permanent, and essential part of our social organization, some men were born solicitors. The lecturer thought he might, without undue vanity, claim to be one of those. (Hear, hear.) For the profession was not one which demanded the best men. It was a profession of the second-best. By Memoir. xiii that he meant that much self-effacement was necessary : the solicitor's interests, and even feelings, should always be subordinated to the client's. Men of the first rank of intellect threw off the yoke, or entered the other branch of the profession of the law. He instanced Shakespeare (cheers), Mr. Disraeli (groans from the back benches), and many others. Never- theless, the ideal family solicitor should possess many of the qualities which go to the making of a great man — foresight, caution, decision, knowledge of men, some — but not excessive — ambition. Let them re- member " ' The same ambition can destroy or save, And make a patriot as it makes a knave.' (Cheers.) .... The lecturer continued : He had alluded to the need of knowledge of mankind. This must be gained chiefly by the experience of life. But he ven- tured to say (differing from some whose opinions he respected) that much might be learnt from novels. (Cheers, and cries of ' No, no.') Of course, novels should be used under proper restrictions ; he would not recommend their indiscriminate perusal. (The Vicar : ' Hear, hear.') But he maintained that much might be learnt from them. And what, he asked, is the lawyer's stock-in-trade? Knowledge of law, equity, conveyancing, the practice of the courts ? These were essential, no doubt, but they were mere preliminaries. His proper study, at least, in the words of the poet, was Man — and, he would say, Woman. Tact, knowledge of the world, s avoir /aire— these were his tools, as much, ay, and xiv Memoir. more, than the habeas corpus, the warrant, and the man- damus ! (Applause.) " True knowledge could come only by experience, and experience with time. But much of the working of the human heart, of the way in which our interests and passions affect our judgment, might be learnt in fiction. Who that read Sir Walter Scott, Mr. Dickens, or Miss Austen failed to close the volume a wiser and more experienced man ? Who that loved the drama wisely, and not too well, failed to experience at the theatre that exaltation which brings man nearer to the gods ? Speaking to his young friends he would say, if he might adapt the sentence of one whose eccentricity they deplored, while they revered his genius, 'Close thy Blackstone, open thy Thackeray ! ' " Let him not mislead his hearers : there were draw- backs to this honourable calling. Solicitors must expect to be excluded from public life ; to find the prizes few and their acquisitions inconsiderable. Nay, they must expect to find people, clients even, recount to them the stalest witticisms at the expense of the law, the most venerable Millers, as though fresh coined from the mint of their precious brains ! And more, they must be pre- pared to laugh at them. There were thorns by every rose : every heart knew its own bitterness. They must stoop to conquer. " It is not our purpose, as it would be beyond our powers, to follow at length this interesting and instruc- tive lecture. We hope Mr. Popplestone will give it to the world in print. The resources of the Mercury estab- lishment shall be laid under contribution to reproduce it in our well-known style, should Mr. Popplestone so far Memoir. xv honour us. 1 But we cannot refrain from quoting a passage which will be interesting to our fair readers. ' Should a lawyer marry ? ' asked Mr. Popplestone. ' On the whole I am convinced he should not.' (Here we observed an anxious expression of dissent from Mr. Popplestone's pupil, Mr. Chas. Young.) ' Careful observation,' said the lecturer, ' alike of novels and the stage, has convinced me that the part of the family solicitor requires a bachelor. He must be ready to appear at any time from the first act to the fifth, whenever the plot needs elucidation — a thing no married man would be at liberty to do; and he must have no emotions. I once knew a family solicitor who (on the stage) wanted to kiss the hand of a ward in Chancery. But that was only in a farce, and was dis- countenanced as an innovation. One advantage he would concede to married solicitors : their sons might succeed to the practice, and thereby avoid interruptions, injurious alike to clients and practitioners. But, as a rule, they wouldn't. Domestic troubles, too, distracted the mind that should be always devoted to the interests of a client, ready at all times to aid, to counsel, and to cheer.' (Applause.) " The lecturer concluded by saying that we could not all be solicitors, but we could all do our duty. (Cheers.) Therein lay the true merit ; to that he exhorted them all. (Applause.) A vote of thanks, appropriately moved by the Vicar, concluded a very pleasant evening." Mr. Popplestone was faithful to his principles, and J Mr. Popplestone seems to have resisted these blandishments. xvi Memoir, remained all his days a bachelor. Friends who knew his affectionate nature, indeed, found it difficult not to suspect that this was due rather to some personal ex- perience than to the opinion he thus jestingly pro- fessed, or even to the necessity, which he often pointed out, of maintaining the race of bachelor uncles. This suspicion will be confirmed by the perusal of some lines " To Sarah," which he one day showed me, with the quiet laugh against himself which was his most familiar expres- sion. " It is an old-fashioned name," he said, as he saw my smile, "and never got its fair share of odes and sonnets. But at least my heart was young before she died. And if you study the ' Language of Flowers ' you will find the name means simply ' A Princess.' " As a specimen of Mr. Popplestone's effusions (so he would call them) on other than legal subjects, I trans- cribe them here ; and I do so with the more pleasure that they were, I think, in part suggested by an Essay of Elia. TO SARAH: A VALENTIXE. Of all the saints whose titles we Within the almanac enshrine, My favourite I own to be The good, old bishop, Valentine. I cannot call the book to mind In which is his biography ; His diocese you will not find Remarked in your geography. I wonder was he High or Low ? Or Broad, or Evangelical ? Would he with Nonconformists go, Or did he hold confessional ? Memoir. xvii When out he went on Sunday morn Did little Cupids go as waiters, To smooth the episcopalian lawn, And button up his lordship's gaiters? And did he always preach of love ? For sweethearts offer special prayers ? And did those Cupids wait above The pulpit, or upon the stairs ? We ask these questions all in vain, For though the saintly bishop was well Known and loved by all, it's plain, He never had a Froude or Boswell. But, though no details are supplied With reference to the life he led, Tradition tells us how he died, And where he's gone to, now he's dead. For such was his benevolence The Government had made him Stand- ing Counsel (without recompense) To all the lovers in the land. When Edwin wrote to Angelina To Valentine he'd send the letter ; And though the bishop had not seen her He'd help to sing her praises better. He'd polish up the jarring rhyme, He'd mend and patch the faulty rhythm ; Though great the calls upon his time, He'd take no end of trouble with 'em. Love-letters came for his correction By every post, at such a rate, Ten postmen, under police protection, Would bring them by the hundredweight. xviii Memoir. Their likeness told upon his mind ; When " wounded heart " occurred above, "Love's dart " below he'd ever find, But suffered most from "love" and " dove." One day the bishop stooped to raise A letter pushed beneath the door ; Just then the postmen in relays Were busy in delivering more. They brought so many, great and small, The letter-box beneath their weight Gave way, and, with its contents all, Fell down upon the bishop's pate t Still through the aperture they came, Love's scented missives by the score, And fell upon his prostrate frame Till he was covered o'er and o'er. He could not move, but with a sigh Escaped his spirit orthodox, And fled to brighter realms on high — The Martyr of the Letter-box. And since, upon the front -door mat The good old bishop came to die, There lovers have their habitat, And linger o'er their last good-bye. Still from his happy home above He looks upon our lays, and when I thought to write to thee of love, He came and guided thus my pen : — ■ THE VALENTINE. Well might thy parents, o'er thy cradle bending, Declare thy name should Princess be ; For sure the eye of love cculd see To fairest name, thy form fresh graces lending. Memoir. xix Yet were their wondering eyes with joy less full. Than those that see thy maiden days, And trace thy path, in sweet amaze, To gentlest womanhood through youth and school : For had they all the future seen, They would have called thee, love, a Queen. These lines, like most of those which make this little volume, were revised in the few months of unwonted leisure, which intervened between Mr. Popplestone's retirement from active practice and his death. While still engaged in his profession he wrote little. It was not that the poet in him died young, but that he had no time to sing. It may be true, Mr. Popplestone used to say, that Nor pleads he worse, who with a decent sprig Of bay adorns his legal waste of wig, but the difficulty is to find time for both the pleading and the adornment. But at the last he returned with pleasure to the amusements of his youth. He pro- jected an edition of" Felix Holt," annotated for the use of Law students, with a copy of the settlement of the Tran- some property, a pedigree of the family, and copies of the pleadings in the suit of " Scaddon, otherwise Bycliffe, v. Transome." He commenced then " The Peerage, Baron- etage, and Knighthood of Fiction." It was then, too, that he retouched most of the following rhymes ; destroyed many, for the comprehension of which the changes of fifty years had made long explanations necessary; and added one or two pieces, which will be easily distin- guished. Trifles, he said, he knew they were ; but at seventy-five he had earned the right to trifle a little. xx Memoir Like Charles Lamb — if, on account of Mr. Popple- stone's affection for him, one may be allowed the com- parison — he would have earnestly disclaimed the idea that these pages contain his works. His works, he might have said, are contained in the piles of his dusty papers ; the long series of letter-books ; the municipal records and the title deeds of Stourmouth. To such of the "Leading Cases in Verse," 1 as seemed to me to require explanation, I have prefixed brief notes. But in most cases I have been able to find remarks by Mr. Popplestone himself among his papers ; and these, where not expressly stated to be his, I have distinguished from my own by the addition of his initials. To the " Lays " I have ventured to add, in a post- cript, notes on some of Mr. Popplestone's predecessors in discoursing of the Comedy of the Law. 1 Leading cases have been defined as those which, " from their important character, have demanded more than usual attention from the judges, and from this circumstance are frequently looked upon as having settled or determined the law upon all points involved in such cases." LEADING CASES IN VERSE. " Poetical reports of law cases are not very common, yet it seems to me desirable they should be so. Many advantages would accrue from such a measure. They would in the first place be more commonly deposited in the memory They would become surprisingly intelligible And lastly, they would, by this means, be rendered susceptible of musical embellishment, and instead of being quoted in the country, with that dull monotony which is so wearisome to by-standers and frequently lulls even the judges themselves to sleep, might be rehearsed in recitation ; which would have an admirable effect.'' CowrER, Letter to Rev. William Unwin, Hay leys Life, I. 240. Here, you see, the curtain rises ; BALLADE OF LEADING CASES. To H. S. M. G. When August crowns the legal year, When clients leave an hour for play, But — your examination near — You're doomed in London town to stay ; When, tired of our prosaic day, You'd catch a glimpse of old-world faces, Put statutes, text-books, all, away, — Read, mark, and learn the Leading Cases. What ancient men and dames are here ! What formal beards in grave array ! Matt. Ashby's doubtful wrongs appear, And Wilkes's counsel still inveigh ; You'll see the inn where Calye lay, Old Compton's woes, Miss Chudleigh's graces, If you my sage advice obey, " Read, mark, and learn the Leading Cases." Popphstonc his clerk advises. Still Moss's rent is in arrear, Still rings Bowes' matrimonial fray, Still Delamirie's fraud is clear ; Fortuitous immortals, they Shall live when you and I decay. When fought our fight, and run our races, Full fifty generations may Read, mark, and learn the Leading Cases. ENVO Y. Prince, would you see Law's tricksy fay, By Justice set in judgment places, Now guide, now turn her sword astray ? Read, mark, and learn the Leading Cases. SJieppard soon the mail surprises. MILLER v. RACE. (/. Smith's Leading Cases, gth Edition, 491. Temp. 1791-) Bank note stolen. — No title to chattel personal acquired from person having no title. — Exception to rule. The postboy takes the Western way, The London mail-bag at his back, 'Twas where the ungentle Sheppard lay, Whose name was Jack. , There was within one letter's fold A sight to make the miser gloat ; Ah ! better than the yellow gold The crisp bank-note ! 'Twas sent by Mr. F. to pay A debt he owed, had it but got Safe guarded on its destined way : But it did not. C 4 Sing, hey, the days when folks were richer, A shout, a shriek at fall of night, Black Bess, a highwayman thereon : A postboy in an awful fright : A mail-bag gone ! " Come bring the breakfast forth, mine host, The cheerful coffee-cup, I beg, Some rashers trim, and with my toast I'll take an egg. '•' We who perforce must ride at night When business calls, against our will, Can boast a traveller's appetite. Boots, bring the bill." How should our worthy landlord know The note wherewith he paid his score Was that the postboy had let go The night before ? Guileless he jogs to London town, Seeks out the Bank, and straight thereat Upon the counter puts it down, With " Cash for that ! " When Macheath lived, and Jemmy Tw ticker. 5 But Mr. Race, the cute cashier (Commercial men were ever so), When he had got the note, said, " Here ! Exactly so. ; 'This note was stolen the other night, As doubtless very well you know. Nor cash nor note, since you've no right, From here will go." " Why," said the jolly Miller, " why, I've always heretofore been told Notes pass by mere delivery, Just as does gold " Or silver coin. If you refuse To pay the note that's fairly mine, We'll take a judge and jury's views, Sir Superfine ! " 'Twas in good faith, the jury said The note was ta'en. No more he knew Of Sheppard, or of Beau Brocade, Than I or you. And judgment did Lord Mansfield give, " Bank-notes pass by delivery." So home the Miller went to live By^s.d. What the Stat, of Fra?ids enacted, PETER v. COMPTOX. (/. Sm. L.C., 359. Temp. 1693.) The Statute of Frauds, passed in 1677, "for the prevention of frauds and. perjuries," made writing and, generally, signature, necessary to the validity of contracts relating to the sale or letting of land, or to the sale of goods at the price of ^10, or more, and to the validity of (among others) agreements which could not be carried out within a year from the making. Exceptions, however, are made where the agreement has been partly performed, or some- thing given in earnest, or paid on account of the price. It having once been said that every section of the statute was worth a subsidy, it is now invariably introduced to the student with the remark that, at any rate, it has cost one. For the statute, though prepared by high judicial authority, is so loose and unscientific in expression that innumerable doubts as to its construction have come to the courts for decision. The 4th and 17th sections, especially, have become a joy for ever to Examiners, and the cases arising on them, like "the trees that whisper round a temple," have become dear as the statute's self. One of these cases, decided in 1693, has con- ferred a perennial interest on the matrimonial alliance of Mr. and Mrs. Peter, in circumstances which are here narrated by the defen- dant : — What defendant has contracted ; I was talking one day to that Peter And Peter was talking to me. " When I find the right girl, I shall greet her And marry her quickly, " says he ; And I laughed, " Well, I hope you may meet her," For he wasn't a beauty to see. " Tell you what ; if you'll give me a guinea, I'll give you a hundred ' the day You are wed ; " for I thought, " No such ninny As 'ud wed him can live any way." " Right !" he cried, and then, with a spin he Tossed the coin, and I took it, O.K. But it seems about women I blundered And judged 'em too highly, sir; for One day Peter came for that hunderd— 'Tvvas about two years after, or more. And how Peter and Mrs. P. thundered ! — And then, sir, they took me to law. We said as how they'd no writin', Which my lawyer he made it appear 1 The reporter is here inaccurate ; the agreement was for a thou- sand guineas. Eut the principle, as was said by the chemistry pro- fessor whose experiments invariably failed, remains the same. — En. 8 Peter wins, and here you find Was required by the Act he was citin' (Chapter three of the twenty-ninth year Of Charles Second) for contracts you might in Performin', be more than a year. But the judges for Peter decided That the Statute of Frauds only meant That there must be writing, perwided It was clearly the parties' intent That twelve months must by them have glided. Before they performed th' agreement." And Peter, they said, might have married (And there's no denyin' he might) Before he a twelvemonth had tarried ; I'm not a-gainsaying they're right. So Peter the argyment carried — ■ And my purse is uncommonly light. " It has been pointed out,'' says Mr. Popplestone, "that, even had the plaintiff failed on the point argued in this case, he might have succeeded on the ground that, by payment of the guinea, there had been part performance of the contract, and that the necessity for writing was thus avoided. He was a more fortunate litigant than the hundreds of others who have failed, for want of some writing, to comply with the statute. On the other hand — so great has been the amount of litigation arising from this famous Act — there must have been hundreds, at least, who have had good cause to How attorneys arc maligned. bless the clay when their legal adviser persuaded them to insist on the proper formalities in making a contract. Yet do we find that gratitude recorded in literature? Not. at all; or, scarcely at all. Think of the reams of paper devoted to abuse of us ; think of the countless epithets hurled at our heads, the contumely, the ribald jest. I have observed that the unsuccessful party to an action in- variably thinks, and rarely fails to say, that his opponent's attorney is a sharp practitioner and a pettifogger. And what is the record on the other side ? I know of but one honest verse in literature, and that (to our shame be it spoken !) comes from America : — '" Give us your hand, Mr. Lawyer; how do you do to-day? You drew up that paper — I s'pose you want your pay, Don't cut down your figures ; make it an X or a V, For that 'ere written agreement was just the makin' of me.' "Of course it was ! It generally is. Yet when we do not cut down our figures ; when we do make it an X or a V, or a combina- tion of X's and V's, what proportion of clients regard those charges as fair ? It makes even an old Tory respect Republicanism, that it has created a man capable of rising so far above popular superstition and popular prejudice, as thus honestly to speak the thing he would. " For an illustration of the opposite tendency, recall for a moment that miserable creature, the Attorney of Fiction. Grasping, cheat- ing, lying, hypocritical, callous, disreputable, he has no redeeming feature. Take, for example, the creations of Charles Dickens. He could create a 'Riah, to atone for his treatment of Jews in Fagin ; but is there any reparation for his Dodsons and Foggs, his Pells, his Guppy, his Brass ? George Eliot had less tendency to carica- ture, but are men like Dempster, and Jermyn, and Johnson, the only types of solicitor she met ? Sir Walter Scctt was wiser, with his excellent Fairford, and, better, Pleydell. But he looked at law from the inside, and will hardly be accepted as an unprejudiced i o Critics all misunderstand us, witness. I pass over the strife-provoking attorneys created ad hoc — in novels, I mean, the purpose whereof is to denounce the law ' wrote,' as one such book puts it, 'for the Benefit of Unhappy Clients.' They generally — especially if written by lawyers anxious to catch the popular ear — out-herod Herod. And I can call to mind only one prominent example of the soul of goodness, which must, one would think, exist even in so evil a thing as writers represent our profession — to wit, Mr. Carlyle, the hero of J East Lynne.' The intention in his case was, no doubt, excellent ; but it is difficult to feel very grateful for the result. "The poets rarely favour us with their attention; for which, indeed, they may be pardoned. As a class, we are not poetical, nor the cause of poetry in others, though Chaucer puts his most pathetic tale in the mouth of 'The Man of Lawe,' and that not as a con- solation for want of practice : — " ' There nowhere was a busier man than he, Yet busier than he was he seemed to be.' But the prominent exception is Crabbe. And what says our ' Tope in worsted ' ? He is ' of a tale' with the rest. " ' Swallow, a poor attorney, brought his boy Up at his desk, and gave him his employ ; He would have bound him to an honest trade, Could preparations have been duly made.' The third line is delicious, though it may be thought, perhaps, to beg the question. Swallow appeared in Crabbe's own Borough, for " ' in this, in every place Fix the litigious, rupture-stirring race ; Who to contention, as to trade, are led, To whom dispute and strife are bliss and bread.' Poets, too, and prose rs brand us. 1 1 Of these the worst is Swallow : " ' By Law's dark by-ways he had stored his mind With wicked knowledge how to cheat mankind.' There follows a long story of conduct which was certainly unpro- fessional, and, if there had been one sensible man in the country, must, one would think, have ended in a prosecution. However, for details the reader may go back to Crabbe. The conclusion is forcibly feeble : — " ' Still we of Swallow as a monster speak, A hard, bad man, who prey'd upon the weak.' " The Attorney of the Stage I will not condescend to examine seriously. He is, in modern plays at least, so wooden, so unnatural, so mechanical a monster of wickedness, or such a mere machine to explain the plot or expedite the denouement, that I think only the stage detective excels him in unreality. No one is likely to detain him long upon ' the rack of this rough world ; ' I, for one, let him pass. But I lighted the other day on an old folio pamphlet of 1676 which is worth remembering — ' The Character of an Honest Lawyer.' It is so refreshing to see the matter put in its true light that I quote a passage or two. • An honest lawyer,' says the author, a certain ' H. C.,' 'is the Life-guard of our Fortunes; the best Collateral Security for an Estate.'' He distinguishes him very properly from the sharp practitioner, and concludes thus : — ' In a word, while he lives, he is the Delight of the Court, the Ornament of the Bar, the Glory of his Profession, the Patron of Innocency, the Upholder of Right, the Scourge of Oppression, the Terror of Deceit, and the Oracle of his Country, and when Death calls him to the Bar of Heaven by a Habeas Corpus cum Causis, he finds his Judge his Advocate, nonsuits the Devil, obtains a liberate from all his in- firmities, and continues one of the long robe in Glory.' 1 This is a little 'steep' perhaps. But how much nearer the truth than the popular conception ! " 12 Ne'er a word the author knew LIC KB ARROW v. MASON. (/. Sm. L.C., 737. Temp. 1 786-1793.) " Now it chanced that there came divers Knights from the Marches of the North, and vvrang their hands, and cried, 'Justice ! ' And King Arthur sat on the chaflet and said, ' Fear not, but I will do ye right, for it forthinketh me that wrong go unpunished. Who hath done ye hurt ? ' So they spake their gest, and King Arthur said, ' Nay, but this is a hard case. Sir Ashurst, I charge ye that ye ride forth and do what beseemeth therein.' " — Morte cPArthtir. 1 The story told in the old Term Reports, Of Mason and Lickbarrow, and the right, To stop in transit goods, unpaid for, sold To an insolvent ; and when nights are long Read by each student lovingly with care, Ere yet he girds him for his Final day. For Freeman, as beside the Hasingvliet — Fairest of all fair waterways that thread, By street and bridge, the town of Rotterdam, 1 I have been unable to verify this quotation. — Ed. Rhymed with " stop 211 transitu ;" 1 3 Where land and water meet, and every spire Lies deep reflected in the waves beneath — He paced, half lost in meditative mood, Spoke thus to Turings : " Lo ! The summer wanes ; The corn that waved so fairly, while the sun Stood at his zenith, lies within your barns. Send me a cargo ; send it me, I pray, There where the Royal Liver makes her nest, At Liverpool, beyond the Northern sea, And I will pay you by acceptances." Then Turings, hearing, did as he was prayed, And through the Northern water the white spray Foamed and dashed high in air. Yet, ere he went, Sang Holmes, the bravest of all knights who stood Upon the vessel's deck, and captain called, And loud his voice and cheery. Thus he sang : " Four bills of lading I have signed to-day ; Three bills of lading soon have passed away ; For Turings has them. Three and one are four. " One bill of lading still I do retain ; One I shall have when the good ship shall gain Her distant port. And three and one are four.'' Then, as they sailed, did Turings take the bills, And two he gave to Freeman, who with joy 14 Tells his talc, then, in blank verse ; Received them, nor by him to be outdone In knightly courtesy, he turned and gave Bills of exchange to Turings for the price. So the days passed, and the moon waxed and waned, And August days grew shorter, and the barge Yet sailed apace. But Freeman meanwhile sold To Lickbarrow of Liverpool his corn. The corn that lay within the vessel's hold, And sent his bills of lading, and assigned Them duly over, and Lickbarrow paid His price. But Freeman, ill at ease, and grave With many cares, and bearing now the pain Of former loss, was bankrupt. Turings heard And shuddered ; his acceptances as yet Were not matured, and lost was this his wealth. Yet rallying, as becomes a noble knight, Wise in the tent as valiant in the field, He seized the bill of lading he retained, And sent it in hot haste to England's shore, To Liverpool, to Mason ; and he said : " My hour of need is come ; friend, be my friend, In this my travail. Get ye down with speed To where the water beats upon the land, And oozes black by the far-stretching quays, And where ye see the fair Endeavour lie, There haste ye. Take the corn she groaning bears — Plaintiff's treated worse and worse. I 5 My corn it is — and sell it ; yet unpaid Am I ; and send the money ye acquire." And Mason, ever faithful to his charge, Stayed not to question, did as Turings bid. Then said Sir Holmes, seeing in Mason's hand The bill of lading, " Sir, so let it be As ye would have it. I have done my deed Do ye what resteth." So he gave the corn, And Mason took, and sold it, in despite Of Lickbarrow, who, turning, strove and cried : " Wrong, bitter wrong and foul despite ye do, As though the land were kingless, or as though Rough Might ruled o'er us. Sirs, the corn was mine ; Justly I bought it and the price I paid. Give it, I pray you, that our strife may cease. Yet — if ye will not — let us to the hall Where, by his minster of the West, the King Sits to right wrong, with him who meetly wears The ermine of the Lord Chief Justiceship." But Mason answered, " Sir, ye waste your words : The corn is Turings'. Freeman, when he sold And sent you bills of lading, had not paid The price he promised. Bankrupt now is he, And since I stopped it, lo ! the corn was mine." Then on a day when, in due order ranged, 1 6 Here zve learn their lords/lips' pleasure. The judges, following their custom, sate To hear the plaints of those who suffer wrong, In the great hall, where the dim light beat through The many-coloured pane, the knights drew near And cried for justice. And when all was told Stood one grave judge before the rest and sang : " This is the song, the song of Ashurst, J., Let him who will, J. Ashurst's song gainsay ; He errs in counsel. Lo ! I sing the law. " Dear is the right to stop in transit 'u The goods unpaid-for, when the seller knew The buyer bankrupt. List ! I sing the law. " Yet, if before the goods the seller takes, The purchaser a due assignment makes, No right remaineth. Lo ! I sing the law. " This corn Lickbarrow from yon Freeman bought ; Justly he claimed the goods ; and true he ought To have them rendered. I have sung the law. :; Thus ceased he, and the murmured plaudits rose As, for the plaintiff finding, he resumed His seat august. Then slowly from the hall The people passed away, and darkness fell Upon them with the night • and the grey mists Rose from the river, and the land was still. Sing zve now a lighter measure. I 7 ARMORY v. DELAMIRIE. (Z Sin. L.C., 385. Temp. 1722.) " Finding's keeping." Ain't it hard that when a feller has a bloomin' stroke o' luck There must come some other feller at his orange for to suck? But though I sweep a crossin', 1 a toff though he may be, He ain't a-goin' to lord it over Charley Armory. I was standin' at my crossin', sweepin' up like anything, When I sees a shinin' jewel — twas a pretty lady's ring— A-lyin' there beside me, and there worn't a copper near, So out of the mud I whips it, and sticks to it, never fear. 1 Mr. Popplestone is here a little inaccurate : Armory swept not crossings but chimneys. Perhaps since " climbing boys " have ceased to be, it may be assumed that crossing-sweepers are their lineal representatives. — Ed. 1 8 Like "golden boys " a sweeper may Then says I, "My pippin Charley, you're in luck — that's what you are ; Off you go to Delamirie's ; sharp's the word, it isn't far.'' So although the day was rainy, and the trade was pretty keen, Off I goes, and makes no extry charge for that there crossin' clean. When I gets to Delamirie's (that's the goldsmith's what's hard by), " If you please, sir," says I, quickly, " a poor crossin'- sweep am I, And I want to know the value (I ain't never been to school, And I don't know nuftin, please, sir) of this pretty little jewel." And he ups and bosses sideways, then he takes a little glass, Then he turns and turns it over, then he eyes me, and at las' Kind o' laughs, and says off-handed, " Well, it's only brass, you know, But I'll give you, say, three ha'pence." " All yourself 1 " I says, " Oh, no ! Find fortune lying in Jus way, 19 "Not for Joseph ! " says I, quickly, " please to give me back the ring." So he did, but — did you ever hear of such a wicked thing ? — He had taken out the jewels what was fixed and shinin' there, And he kep' 'em, and he only gave me back the socket bare ! Didn't I just loose the lingo ? Didn't I just give him sauce ? Not by no means ! Not at all, sir ! No, I went at once, o' course : " Call this here a Christian country? Garn away, your gammon cease, Thieves and murder," says I, " Robbers ! Burglars ! Help ! Perleece — perleece ! " So a gent, what was a passin', came to see what was the row, And he said as how he'd help me, and he took and told me how I could get from that there willin, who had gone and done me wrong. Damages for them there jewels, and could make him change his song. D 20 And find, ivhile travelling on lifes tour, So one day I had to go, sir, 'fore a fine old big-wigged beak, And another chap puts questions ; so I ups and out I speak, Up I speak and tell 'em plainly how I got ihe ring, and where, And how that there Delamirie wouldn't act upon the square. And to hear that judge a-talkin', wasn't that a stunnin treat ? For he told that Delamirie he worn't better than a cheat, And he lectured, and he rated, at that poor, unlucky bloke, Till I a'most died o' larfin, and was nearly fit to choke. " Spose," he says, u the boy did find it, it is his, although o' course, He'd have had to give it back to her as suffered by the loss ; But, 'gainst every other body, he'd a right to keep the ring, And for you to go and take it was a most dishonest thing. Laivs do not always grind the poor. " And since you've took the jewels out, and gave him back the socket, You must pay him heavy damages out o' your unholy pocket ; And since we can't tell what the sort of those you took away, sir, We'll assume they were the best ones, and for 'em you must pay, sir." So ain't I just the cheese, sir? and don't I cut a dash, And put on side of evenins with Delamirie's cash ? But, lor', I am a steady sort, and gen'lly goes courtin', Like Mr. Altamont I'll wed as soon 's I've made a fortin 7 . So farewell, gentle reader ; may your crossin' be a broad J un! And every Sunday mornin' wet; the takings, too 7 accordun'. May you live to be a hundred, and then be strong and wiry, And all your lawsuits end like this 'gainst Mr. Delamirie ! "It is gratifying, if somewhat surprising, to the professional lawyer," says Mr. Popplestone, " to find the popular impression of the law corresponding to some extent with the reality. With the obvious and important exception of the owner, and the rare case of treasure trove, finding is keeping against all the world. So that the 2 2 How laymen oft the law distort : notices exhibited by railway companies, requiring the delivery of chattels found in carriages and the like to their officials, is only another proof that corporations have no consciences. " No pessimist or cynic need, however, regard his principles as shaken by this instance of popular knowledge. It is but the exception that proves the rule of a wide and comprehensive ignorance, equalled only by the confidence with which the popular errors are maintained. Some of these errors I intend to examine and analyze in my long-contemplated ' History of Law in Relation to Opinion.' Two instances (taken at random) will here suffice — Foreclosure, and Contempt of Court. Foreclosure is the process by which a person who has lent money, secured on mortgage, may obtain a decree from a court of equity, cutting off the borrower from his right to redeem the land by payment of the mortgage money. Now, how is this obtained ? After proceedings, occupying at least some months, and possibly a year or two, the mortgagee obtains from the Court an order to take an account of how much is due to him. Other proceedings follow in Chambers, and, after several more months, a certificate is made of the amount due. Then, after a short interval, another order — the foreclosure order — is made, by which it is directed that if, in six months from the date of that order, the amount due is not paid, the mortgagor be fore- closed from his right to redeem. At the end of that time another application is necessary to make the foreclosure absolute : and I say nothing of frequent extensions of time by the complication of receivers, and 're-opening' of the foreclosure. It is obvious that this procedure has been framed with the most scrupulous regard to the protection of borrowers, who can, moreover, obtain an order for sale of the property, instead of foreclosure. Yet I have seen on the stage honest, virtuous heroes sentenced to four acts of misery by a single ' foreclosure notice,' by which a tyrannical and nefarious mortgagee could at his arbitrary will, and at a moment's notice, eject them from their homes without right or remedy ! What this Prose readings on Contempt of Court. 23 mysterious ' foreclosure notice,' with its summary procedure, is, I have in vain sought to discover in all the books. " Again : committals for contempt of Court for marrying a ward of the Court without its sanction can only be made, as the youngest attorney's junior office-boy knows, by that Court, and when the husband knew the wife to be a ward, and then only after notice to him and the hearing of a motion in Court, when he could appear, personally or by counsel, and make any excuse, or offer any apology, he thought fit. Yet I have seen (and laughed for three hours con- tinuously with honest pleasure at) a play, one of the authors whereof was a barrister, in which a gentleman was sought to be arrested, for innocently marrying a lady not a ward when he married her, on a warrant obtained apparently from the nearest magistrate, and with- out any notice whatever to the gentleman himself ! "Do not let me be supposed to complain of the general ignorance of these matters. Apart from an obvious reflection with reference to Othello's occupation, it will readily be supposed that we derive a flush of pleasure from the reflection of our superior knowledge, which is one of the consolations too rarely found along our thorny path. Narrowed, indeed, would be the novelist's licence, were he never to transport us to a land where wills are not revoked by marriage, and fraud of all kinds is more easy than in our own. Through a long life I have derived peculiar gratification from observing the dogmatic utterances — whether in the tavern bar or the provincial drawing-room — of those, who, in the language and with the logic of honest Dogberry, assume that a knowledge of the law, like read- ing and writing, comes by Nature." 24 Pater son his trust misplaces; PATERSON v. GANDASEQUI. (II. Sm.L.C, 378. Temp. 1812.) When the buyer of goods upon credit becomes bankrupt, the honest tradesman naturally seeks to make some other and solvent person liable for the price. Opportunities for this course arise especially in dealings with agents, and the success of the honest tradesman depends largely on his knowledge or ignoi - ance of the fact that his customer bought as agent, and not as principal. Should you ask me whence these stories, Whence these tales of Gandasequi, I should answer, I should tell you, " From Smith's well-known Leading Cases, Smith, J. W., the learned ; Volume two, the ninth edition." Gandasequi, wealthy merchant, In Madrid the splendid dwelling, Came to England, came to London, Came and called on Larrazabal, All too late his step retraces ; 25 Menojo, and Trotiaga, London merchants, they, his agents : Said, " I'll give you two per centum For commission on your purchase, Purchases for Gandasequi." Then to Paterson a message They despatched, and he upon them Called, and with him brought his samples. In the counting-house he showed them, Counting-house of Larrazabal. Gandasequi looked upon them And debated of their prices ; Then he ordered many stockings, Ordered several hundred dozens. Gladly Paterson despatched them Invoiced all to Larrazabal, Till the news upon the market Spread among the frighted merchants — " Larrazabal and Menojo, And their partner Trotiaga, All are bankrupt, banco rupto ! " Then did Paterson for payment Gandasequi press, and sue him. Ellenborough, Lord Chief Justice, Tried the case in London city. " No," said he, " for Larrazabal 26 Loses, though his fig] it was. plucky To your knowledge was an agent. You to him the goods have invoiced, Knowing well for whom he acted ; You elected Larrazabal For your debtor." And, so saying, Straight a non-suit he directed. Wasn't Gandasequi lucky ? 27 ADDISON v. GANDASEQUI. (II. Sm. L.C., 387. Temp. 1812.) In the time when Gandasequi, Having crossed the stormy water, Having crossed the Bay of Biscay, Was in London city dwelling, Did his agent Larrazabal Write to Addison the merchant, Saying, "Show us of your samples." To the house of Gandasequi Straight the merchant brought his samples ; Gandasequi long debated Of their prices ; six per centum Did he ask for a reduction, And he ordered ; gave directions For the shipment of his purchase By the good ship Archduke Charles. Addison the goods delivered Debited to Larrazabal ; Larrazabal gave him credit 28 Exeunt they of names fantastic. For the goods, and Gandasequi Did he debit with their prices, And commission two per centum. Then, when Larrazabal's failure Was discussed in all the markets, Addison sued Gandasequi For the value of the purchase ; Though he knew that Larrazabal Was the agent, Gandasequi Principal and real buyer, Yet had debited the prices Unto Mr. Larrazabal, — Larrazabal and his partners. Twelve good men and true, the jury, Gave a verdict for defendant ; All the learning of the lawyers, Serjeant Best and Serjeant Vaughan, Failed to remedy his losses, Failed to set aside the verdict. Addison was left lamenting, " Oh, my money ! Gandasequi ! " Of the Courts Ecclesiastic. 2 9 THE DUCHESS OF KINGSTON'S CASE. (//. Sin. L.C., Si 2. Temp. 1776). " A'cursory acquaintance with English history,"' says Mr. Popple- stone, " is sufficient to inform the student of the existence, from the time of the Conquest, of certain Ecclesiastical Courts, or, as they are sometimes called, Spiritual Courts, or Courts Christian, with a limited and peculiar jurisdiction. Their powers, indeed, have been, at former periods, the subject of famous political controversies, with which we are not here concerned. In modern times their jurisdic- tion has been of a three-fold nature : first, in proceedings pro salute aninii of the offender, as in cases of heresy or immorality ; secondly, in cases of semi-administrative acts ; and thirdly, where redress is given to the injured party. Of the second class, the principal divisions are the granting of probate, or official con- firmation of wills and codicils, and letters of administration of the estate of persons dying intestate ; and of the third class, matri- monial causes. The jurisdiction of ecclesiastical courts in matters of probate is a curiosity, peculiar, I believe, to English law ; an anomaly which (as it has now ceased) will be readily forgiven by readers of the Doctors' Commons experiences of David Copperfield, and of the immortal Spenlow and Jorkins. The connection of the Courts with matrimonial causes is more obvious. For though Blackstone, with the true common lawyer's jealousy, remarks that one might ' be led to wonder that the same authority which enjoined 30 'Trix Esmond tvears a ribbon smart, the strictest celibacy to the priesthood should think them the proper judges in causes between man and wife,' yet the explanation lies plainly in the fact that matrimony was one of the seven sacra- ments of the Roman Church. ' Of matrimonial causes,' to quote again from Blackstone, ' one of the first and principal is Causa jactitationis matrimonii; when one of the parties boasts, or gives out, that he or she is married to the other, whereby a common reputation of their matrimony may ensue. On this ground the party injured may libel the other [i.e., commence an action against him or her] in the spiritual courts ; and, unless the defendant under- takes and makes out a proof of the actual marriage, he or she is enjoined to perpetual silence on that head.' Of such suits for 'jactitation of marriage' perhaps the most celebrated is that of Elizabeth Chudleigh, the beautiful Duchess of Kingston, and the original of Beatrix in Thackeray's ' Esmond ' — in my humble and unprofessional opinion, by far the finest novel in the language. The proceedings in her suit were, as will be seen, called in question in the subsequent prosecution of the Duchess before the House of Lords, which forms one of the many curious pages of romance to be found in the law books. The case still remains in those books, because of its bearing upon the doctrine of estoppel, that principle by which a man is at times precluded from asserting or denying some fact, on account of his previous denial or assertion in the contrary sense, or by matter of record; 'a head of law,' say the editors of Smith's Leading Cases, ' once tortured into a variety of absurd refinements, but now almost reduced to consonancy with the rules of common sense and justice.' But the legal importance of the actual decision in the case belongs to the past ; for it should be added that the jurisdiction of the Spiritual Courts was transferred in 1857 to the lay ' Court of Probate ' and 'Court for Divorce and Matrimonial Causes,' which have, in turn, been merged in that curious, if convenient, conglomerate, the Probate, Divorce, and Admiralty Division of Her Majesty's High Court of Justice." Poor Harry bears a heavy heart. My theme is what the poet's e'er should be, Woman and love, and haply, too, 'tis marriage. I cannot often say that of these three The last is greatest — not that I'd disparage The holy estate ; — the wayward muse, you see, Sings not the presents, settlements, or carriage. Yet, like a shilling horrible, I'll tell Of marriage here, and bigamy as well. > There are philosophers, I know, who say Cherchez lafemmc, whenever there is trouble ; But I was brought up in a different way ; "Your griefs you'll halve, your happiness you'll double," Was always said upon a wedding-day When I was young. It may be but a bubble, A poet's dream — no reader need receive it ; But I, until I'm forty, shall believe it. Besides, the proverb isn't true : the books (Which to a lawyer means the Law Reports) Are filled, as any one may see who looks, By breaches of man's contracts, and his torts, 1 As was said of Goethe, on the appearance of his " Stella " : "His glowing muse, with passion fraught From dull morality is free ; Self-murder he's already taught, And now he's got to bigamy." J. P. 32 Man is but, or soon or late, His wiles, devices, and his crafty crooks ; Man's injuries to man fill all the Courts. But woman's name, that decks the books so fairly, Appears therein (alas !) but very rarely. Tom Moore may vow you taught him nought but folly, And in his melodies lament your sweet Unreasonableness, O Jane or Polly, Kathleen or Ellen, Mary, Marguerite ; But I maintain that nothing is more jolly Than to learn even folly at your feet. Besides — to cut short what's already long — One need not swear the truth of every song. Let's to our tale. This knock-kneed metre tends To lead one to diffuseness — heinous crime ! The curtain rises ; on his knee there bends His Grace of Kingston ; the soft village chime (Behind the scenes) its sweet enchantment lends. Will she accept the coronet ? 'Tis time ; Thrice she's refused a Duke. Ah, if she could (Much vice in if) accept him, sure, she would ! She, the proud, peerless beauty of her age, Queen of a world of gallants, wits, and peers — She whose fair portrait gleams from out the page Of the great master of our smiles and tears, Play tiling of a heartless Fate. 3 3 The giant of the tender heart, and sage — She, tortured there, 'twixt her desire and fears, Had she spoke all the truth, she must have said, Like Becky Sharp, " I am already wed." Alas ! for those who hear Hernani's horn, When, at the last, the lines in places pleasant Have fallen, after years of grief forlorn ; Who find their long-sought joy but evanescent, And, through the heavy, heavy air upborne, The Past's relentless summons to the Present ; For those who soon their whirlwind harvest see, And watch how Has Been presses on To Be ! And she, Elizabeth Chudleigh, yet a child, Turned by a trick from her first love, in pique Or in caprice, had made a secret, wild, And midnight marriage. Wearied in a week Or less, they quarrelled, hated, and reviled, And parted ; he for anxious years to seek — Anxious to her ; for were her marriage known She'd lost her post of honour near the throne. Once, in despair, the proof she had destroyed Of that much-hated, unacknowledged vow ; Most of the witnesses were dead ; o'erjoyed A moment, but a moment only, now 34 " Give us wealth and fame," we cry, At her imprudence she in fact's annoyed. The messenger to whom e'en peers must bow- Seems to have summoned Bristol's Earl, and he, Her husband, 's heir, and she'd a Countess be. Quickly she had another record made Of that same secret marriage ; for, since Fate That she should be a Duchess still forbade, 'Twas much to be a Countess, though her mate She hated, for rank has its charms. The shade Of her ill fortune doomed her yet to wait : The Earl recovered. It must be unpleasant To find your ancestor is convalescent, When you've already discounted your sweet, Sweet legacy, and have to plunge again In impecuniosity. And fleet The years were passing by her, and in vain Against her secret bonds she'd strive and beat, "Dragging at each remove a lengthening chain. - ' But after darkness came the dawn, and she Gained, at the last, some hope of being free. Since she persisted that her spouse she hated, So let it be ; he would not more pursue. Forthwith she sued to have him jactitated, Id est, that he vain boasting should eschew Age makes answer, " Vanity ! " 35 That he with her in wedlock had been mated ; And he, pro forma, said the boast was true, But did not prove it. So the Court's decree From her long, weary bondage set her free. It was a friendly, nay, collusive, suit ; The Spiritual Courts were not too wise, Yet here, I think, they showed themselves acute — A blind eye, on occasion, I advise. Children of light are rarely destitute Of wit to cross their t's, and dot their i's, In this our day. It may be wrong, but such is Life. Within a month she was aDuch ess. Vicar of Wakefield ! — champion of the cause Of pure monogamy — look in my face ! Would you not somewhat loosen your strict laws Were your Olivia in Miss Chudleigh's place ? I own I'm glad to see her, spite of flaws, Duchess of Kingston, wealthy, and Her Grace. To wed for wealth or rank is doubtless naughty, But maidens sometimes do it ere they're forty. Four years or so she had of wedded bliss, More or less blissful ; then the Duke departed This transitory life. A past like this She should have watche'd that ne'er a hint was started E 3 6 Love we ask, and Death replies, Of what in her young years had been amiss — That secret marriage. But the story darted Through all the town, like sparks when fire is lighted, And soon for bigamy she stood indicted Before her peers. The question was, of course, Whether the Consistorial Court's decree. That found her marriage void, was here of force To estop the evidence of bigamy. They sought the judges — usual resource — To ask their lordships what the law might be ; Who answered the decree was not conclusive, Especially as her suit was collusive. The Crown, they said, might still proceed to show That she again had married, while as yet Her husband lived ; and if they thought that so The facts were proved, the Crown must on them get Their verdict. A French jury, as we know, Had found some loophole in the legal net ; But all who sat in judgment then upon her Declared that she was guilty, on their honour. She pleaded privilege, was straight set free, And then from England she escaped by stealth. Her foes had gained a Cadmean victory : They failed to wring aught from her of the wealth " Vanity of Vanities !" 37 The Duke had left her. But an exile she Wandered in search of happiness and health ; In regal splendour travelling, gratified Each two-hours-long caprice, 1 and so an exile died. Constance or Rachel for her children weeping, A maiden waiting lonely at the tryst For one the waves have in their cruel keeping, Her tears fall'n on the ring she oft has kissed, — These in their grief have something that, up-leaping,. May sanctify the tears they can't resist (Prompter, the curtain ! Quick ! I feel a rising, A fatal tendency to moralizing). But for the heart (I was about to say) Bruised by the fate perverse that fortune brings, That changes fairy Beatrix to clay Baroness Bernstein— are there healing springs To wash the grief-stains of the years away ? Ah me, " the sense of tears in mortal things ! " Still passion sways our youth : 'tis well that after (Cabby ! a hansom !) we've the power of laughter. On the back of Mr. Popplestone's manuscript I find the follow- ing remarks : " I have always thought Touchstone was right to put his moral first, 1 She used to say, " I should detest myself if I were two hours in the same temper." 3 8 Yet life has its consolations. and add, ' thereby hangs a tale.' For, whether the tale be pertinent to the text, or not, we listen thereto with interest : whereas, if the tale comes first, we generally close our ears to the moral. And the tendency of morals is not to ' hang thereby.' Even in my uncritical childhood, I used to think that /Esop's deductions were at times a little strained. And I am conscious that my concluding couplet hangs very indifferently by the preceding rhymes. But I hope an old man may be forgiven for tacking on, even where it is not very appropriate, a moral so comforting to old age. I fancy we all of us find with some surprise, when the romance of our life is over, whether it end in disappointment or realization, that there is (after a little while) so much zest and interest left in life. To quote the refrain of one of Mr. Andrew Lang's best ballades, ' Life's more amusing than we thought.' The sentiment is newer, as well as truer, than the '" O mihi pneteritos referat si Jupiter annos' of our sighing youth. " That tag is trite. I always felt uncomfortably like Mr. Jermyn in ' Felix Holt ' on the, I fear, not infrequent occasions when I have repeated a saying so 'extremely quoted,' to round a paragraph, or impress an alderman on his way home from the Town Council. 'Tis pity that the best things are so hard worked ; so irrevocably committed before our time to the index expurgatorins of sayings which, as Sir George Trevelyan puts it, are 'too hackneyed for quotation.' I remember, at the Athenceum, 1 a young debater had made a speech which favourably impressed the audience ; but when, in conclusion, he compared Mr. Gladstone, or Mr. Disraeli, or him- self, or some one to " ' some tall cliff which lifts its awful form, Swells from the vale and midway leaves the storm,' 1 Doubtless the Stourmouth r Athenreuni and Working Men's Institute.- -Ed. Popplcstone on trite quotations. 39 his peroration was drowned in shouts of laughter, which, to this day, the poor fellow does not understand. "It is interesting to note the artifices by which various authors contrive to introduce these too familiar but useful sayings, and themselves escape the responsibility. Mr. James Payn, in his ' A Confidental Agent ' (where, mirabile dictu, there is a solicitor who is represented as neither dishonest nor ridiculous), has a scholar so sensitive and averse to these ' common forms ' of speech, that, when- ever the talk turns in a way which renders their introduction possible, lie shudders and says, ' he ' — the other character — ' is going to say — I know he is going to say, " Rara avis," or " Sweets to the sweet " ' — and so says it himself to show his horror of the offence ! Mr. Justin McCarthy, in his best novel, ' Maid cf Athens,' speaks of ' our friend Tristram ' (though I daresay that, like Mrs. Harris, there never was no sich person), on whose convenient shoulders the dramatis persona put all the Millerisms and trite quotations they are moved to repeat. This is ingenious, but there is something in it a keen sense of literary equity will not approve. But we are digressing. Reveno?is a nos moutons. " Mr. Popplestone here breaks off abruptly. It need only be added that the reader desirous of further details of the Duchess of Kingston's case and life, will find the facts (and a good deal not coming within that category — some of the fact?, as well as the fiction, being, it must be confessed, little to her credit) in the contemporary "Authentic Detail of Particulars relative to the Duchess of King- ston ....," in Horace Walpole's and Mrs. Montagu's Letters, in the Annual Register, xii., xvi., xix., xx., xxi., and xxx. ; in the State Trials ; and in a far more accessible source, an excellent article in the Cornhill Magazine for February 1SS7. The trial, which lasted four days before the House of Lords, and in which seven counsel appeared for the prosecution and nine for the defence, is reported at some length in these authorities and elsewhere. 40 Cutter sails but — Fates a mocker .'- CUTTER v. POWELL. {II. Sin. L.C., I. Temp. 1795.) The ait and mystery of quantum meruit. 'Twas in Jamaica's bay The Governor Parry lay, A good ship and well found. Now Captain Powell, he Commanded her, and she For Liverpool was bound. Said Powell : "I will pay, Well, thirty guineas, say (Thirty-one pounds, ten, nought); That is, provided you As mate shall duty do Until we're safe in port.*' Then Cutter said, said he : "Your note promissoree I do accept, and so Goes to Davy Jones s locker, 4 1 Let's hoist the flowing sail, And whistle for a gale For Merry England, ho ! " Alas ! old England's shore Should Cutter ne'er see more — He sailed but to his death ; And deep beneath the wave He found a sailor's grave (September twentieth). The voyage was not o'er Till some nine days, or more, October's course had run. The widow said : " My late Spouse was your second mate — Alas ! my only one. " I pray you give to me, Who am poor Cutter's le- gal representative, A portion of the pay That to him on this day You had agreed to give." Said Powell : " Cutter died Before he had complied With the agreement made ; 4- Mourn we o'er the claim rejected! Which was as mate to do Duty the journey through. This claim cannot be paid." And when they went to law Judges upheld him : " For If you contract," said they, " That you'll do such and such, And do but half as much, You nought can make us pay, " Unless the agreement made, Or custom of the trade (And here no custom is), Provide that you may sue On a quantum meru- it. This suit we dismiss." Hcres a dame the Court protected. 43 STRATHMORE v. BOWES. (/. White and Tudor 's Leading Cases in Equity, 604. Temp. 17S9.) Frauds on marital rights — Who seeks equity must come with clean hands. "The law of baron and feme, or husband and wife," says Mr. Popplestone, "as it was known to our ancestors until this century, and in large part even to us, will be regarded by our descendants as conclusive proof of the completeness of our barbarism. That law has been compendiously stated thus : husband and wife are one person, and the husband is that one. There is truth in the epigram. The wife's rights almost ceased to exist. She became incapable of ordinary legal acts. The husband on marriage took her personal property absolutely, her choses in action if he went to the trouble of getting them, and her real property for life. He might (and, perhaps, may) administer to her 'moderate correction,' and might 'confine, but not imprison her.' If she sustained injury she could bring no action for redress without his concurrence ; and he received the damages when they were obtained. Where he was concerned, she was even incapable of being a witness. 'So great a favourite^ says Blackstone, 'is the female sex of the laws of England.'' The remark was not ironical ; but one needs to be a very devout Blackstonian to take it quite seriously. Even the utmost devotion known to civilized men, the love passing the love of women — the affection, I mean, of a commentator — can't quite stand this. One of Blackstone's editors, Mr. Christian (afterwards Judge of the Isle of Ely, and unkindly said to have died, ' in the 44 Ladies won ere Mrs. Wei don, full vigour of his incapacity'), adds (13th ed. i. 445) a note which I take the liberty of appending : — " ' Nothing, I apprehend, would more conciliate the goodwill cf the student in favour of the laws of England than the persuasion that they had shown a partiality to the female sex. But I am not so much in love with my subject as to be inclined to leave it in possession of a glory which it may not justly deserve If the baron kills his feme, it is the same as if he had killed a stranger, or any other person ; but if a feme kills her husband it is a much more atrocious crime. And, therefore, the law denominates her crime a species of treason, and condemns her to the same punishment as if she had killed the king.' The learned editor goes on to point out other differences of the law, among them being that as to benefit of clergy. However learned a woman, she might, prior to the 3 & 4 W. & M., c. 9, have been executed for larceny, bigamy,