Law Reform--The Penal Code--Restriction of the Penalty of Death in
1823-4--Appointment of Commissioners to reform the Civil Law in
1828-9--Sir James Mackintosh--Brougham--Robert Hall.
On the death of Romilly, the leadership in the reformation of the
criminal code devolved on Sir JAMES MACKINTOSH. At the election just
before his decease, the liberal party largely increased its members of
Parliament. Early in the session of 1819, Sir James carried a motion
against Ministers for a committee to revise the penal code. He was
appointed its chairman; and in 1820-1, in pursuance of its doings,
introduced six bills for the abrogation of capital punishment in certain
cases of forgery, larceny, and robbery, and amending the law in other
important particulars. The bills were defeated. A partial effort at
reform was made the next session, and one or two feeble triumphs
achieved. But the day was dawning. In 1823, Sir James proposed nine
resolutions, providing for radical reforms in the penal code. Mr. Peel,
the Home Secretary, caused these propositions to be rejected, only that
Ministers might introduce bills of their own, which largely restricted
the death-penalty, and prepared the way for other repealing acts, till
capital punishment was abrogated in some fifty cases. Thus the dark and
sanguinary system which had so long reared its front over the
jurisprudence of England, received a fell blow.
In 1828, Mr. Brougham made his celebrated speech in favor of remodeling
the whole civil branch of the common law. Near the close he said: "It
was the boast of Augustus--it formed part of the glare in which the
perfidies of his earlier years were lost--that he found Rome of brick,
and left it of marble--a praise not unworthy a great prince. But how
much nobler will be the sovereign's boast, when he shall have it to say,
that he found law dear, and left it cheap--found it a sealed book, left
it a living letter--found it the patrimony of the rich, left it the
inheritance of the poor--found it the two-edged sword of craft and
oppression, left it the staff of honesty and the shield of innocence!"
This speech, one of the greatest Mr. Brougham ever delivered, was
followed by an address to the throne for the appointment of
commissioners to inquire into the origin, progress, and termination of
actions in the courts, and into the state of the law regarding real
property. Two commissions were immediately instituted; one of general
common law inquiry; the other, of inquiry into the law of real estate.
Afterwards, the subjects of codification, consolidation of the statutes,
and reform of the criminal law, were referred to other commissions. The
commission to inquire into abuses in courts of equity had previously
been appointed. Some twenty or thirty of the ablest lawyers in the
kingdom were placed on these commissions, several of whom have since
been elevated to the bench. Their elaborate reports, presented during
the past twenty years, have displayed vast research and learning, and
the numerous reforms recommended by them, exhibiting a cautious but
steady advance in the path of improvement, have generally been adopted
by the legislature. Though the prevailing law of England still continues
a chaos of absurdities and excellences, the reforms introduced by these
commissioners will be appreciated by all who have occasion to explore
the intricate windings and gloomy chambers of the huge structure. The
reports alluded to have been the textbooks of revisers and codifiers in
other countries where the common law prevails, and were frequently
cited, and their recommendations often adopted, by the able revisers of
the New York Statutes--which last have served as the model for revisers
in other States of the American Union.
I am now to speak more particularly of Sir James Mackintosh, one of the
brightest ornaments of the liberal party of Great Britain. This eminent
Scotsman was born of humble parentage, in 1765. At the University of
Aberdeen he met Robert Hall, the celebrated Baptist divine, to whom he
became warmly attached, "because," as Sir James says, "I could not help
it." He adds, that he "was fascinated by his brilliancy and acumen, in
love with his cordiality and ardor, and awe-struck by the transparency
of his conduct and the purity of his principles." Their class-mates
called them Plato and Herodotus. They traveled the whole field of
ancient and modern metaphysics and philosophy hand in hand, debating
every point as they went, till in Plato and Edwards, in Aristotle and
Berkley, in Cicero and Butler, in Socrates and Bacon, there was scarcely
a principle they had not examined, and about which they had not enjoyed
a keen encounter of their wits. The heat engendered by these friendly
controversies fused more completely into one their congenial natures.
Such an attachment, formed in the springtime of youth, was sure to
endure; and though, in subsequent life, they moved in widely different
spheres, their intimacy continued throughout their long career.
Being destined for the medical profession, Mackintosh took his degree at
Edinburgh, and went up to London to practice. George III, then
exhibiting symptoms of insanity, the subject of his illness and of
making his son Regent was agitating Parliament when Mackintosh arrived
in the metropolis. _Doctor_ Mackintosh, instead of prescribing for the
diseases of the king, wrote a pamphlet in favor of the claims of the
prince; leaving the constitution of the monarch to take care of itself,
while he attended to the constitution of the monarchy. The king suddenly
recovered, when, it being no longer necessary to administer medicine
either to the Crown or the Constitution, the Prince of Wales returned
to his mistresses, and Mackintosh went to Leyden to complete his
studies, where he lounged away a few months, reading Homer and
Herodotus, to the great neglect of Galen and Hippocrates. Returning to
England, he plunged into matrimony before he had sufficient practice to
buy an anatomical skeleton for his office. Happily, his wife sympathized
in his literary tastes, and, at once detecting the defects of his
character, "urged him to overcome his almost constitutional indolence."
The French revolution, which ruined so many fortunes, made his. In 1791,
he published a volume entitled "_Vindiciae Gallicae_, or, a Defense of the
French Revolution and its English Admirers against the Accusations of
the Rt. Hon. Edmund Burke." The very title-page immediately carried off
the first edition, and the acute reasoning, brilliant declamation, and
classic style of this vigorous but immature production gave currency to
three editions at the end of four months. There was a great deal of
_heady_ strength in both these essays. Mackintosh's was like a river
sweeping to the ocean, covered with sparkling foam. Burke's like the
long, heavy swells of that ocean, whose crests are pelted by the winds
and dance in the sun. Both authors set up for prophets; and, like other
inspired and less famous men, they mistook the illusions of their fancy
and the suggestions of their imagination for the visions of the seer and
the teachings of the divine _inflatus_. Burke was nearer right as to the
result of the then pending revolution; but Europe would now account
Mackintosh the best prophet. This volume gave Mackintosh an introduction
to Fox and the other Whig chiefs, and he became their warm friend. Soon
after, falling into the captivating society of Burke, his teachings
combined with the sanguinary turn of French affairs to considerably
modify the views put forth in his _Vindiciae_.
Throwing physic to the dogs, Mackintosh entered Lincoln's Inn, and was
called to the bar in 1795. But, though the study of the law was more
congenial to his tastes than medicine, his practice in his new
profession was scarcely more extensive than in the old. In truth, he was
too indolent, too desultory in his efforts, too fond of literature and
abstract speculation, to excel in any pursuit requiring close
application and orderly habits, rendering his whole life a series of
brilliant but mere inchoate performances. In 1798, he proposed to
deliver a series of lectures in Lincoln's Inn, on the Law of Nature and
of Nations. The doors were closed against him, because of his supposed
Jacobinical principles--the Benchers of that conservative corporation
not wishing to have the doctrines of the _Vindiciae Gallicae_ promulgated
in their halls. Mackintosh published his introductory lecture to refute
the charge of Jacobinism, and it was so tinctured with Burkeism, and so
philosophical and eloquent, that it captivated Pitt, who persuaded the
Chancellor to recommend the opening of the Inn. It was done, and
Mackintosh entranced a learned audience throughout his gorgeous course.
His next attractive performance was the defense of Peltier, a French
refugee, the editor of the _Ambigu_, for an alleged libel on Napoleon,
the First Consul. His oration (for it partook little of the character of
a speech at the bar) in vindication of the liberty of the press was
pronounced by Lord Ellenborough, the chief justice, to be the most
eloquent address ever delivered in Westminster Hall. Madame de Stael
sent it through Europe in a French translation, and it secured for its
author a continental reputation. And in our day and country it is read
by thousands who have hardly heard of any other production of his tongue
or pen. His lectures and his oration not only gave him celebrity, but,
what he needed quite as much, a little money; and they brought him an
offer of a judicial station at Bombay. Still pressed by pecuniary
embarrassments, after much reluctance, he consented to be banished, with
his wife and children, from his native land, to an inhospitable clime
amongst a strange people. For nearly eight years he discharged his
judicial duties with fidelity, but through every month of those years
he sighed for his country and its healthy breezes, his associates and
their brilliant society. He relieved the tedium of his expatriation by
making some researches into Oriental institutions, by founding a
literary club at Bombay, and by indulging, in his desultory way, in
classical and philosophical pursuits. His study and administration of
the criminal laws of India turned his attention to the subject which
occupied so large a share of his subsequent Parliamentary life--the
penal code of England.
The generous and philanthropic mind which had prompted the extension of
the right-hand of fellowship to the emancipated masses of France, in
1791, and which, forty years later, was stretched forth to break the
chains from the limbs of the West India bondmen, was not slow to see
that the criminal code of his own country was the legitimate offspring
of a black and bloody age. Returning to England in 1811, he entered
Parliament in 1813, where he remained until his death, in 1832. He
promptly took his seat by the side of his friends, Brougham and Romilly,
and threw his great soul into the contest of the People with the Crown.
The important questions growing out of the European and American wars,
in regard to the rights of neutrals, were then pending, and he joined
Brougham in advocating liberal measures. And, to the end of his
legislative career, on all questions of foreign policy and continental
combinations, on the alien bill and the liberty of the press, on
Catholic emancipation and the abolition of slavery, on the recognition
of South American independence and the settlement of Greece, on the
education of the poor and the freedom of trade, on the relief of the
Dissenters and Parliamentary reform, he was ever found on the side of
justice and humanity. For a short period he was the leader of the
liberal party in the Commons, but he soon relinquished the post to the
more daring and robust Brougham. Indeed, Sir James had not the capacity
for leading a popular body like the House of Commons. He was too
indolent in mastering dry details, too little of a business man, and
his style of oratory was too philosophical, classical, and refined, to
produce the best effect on such an assembly. He spoke over the heads of
country squires and men of the 'change, who could not translate his
Greek and Latin quotations, nor catch the point of his learned
allusions, nor see precisely what these had to do with the traffic in
corn or negroes, or the overthrow of the Holy Alliance abroad, or the
uprooting of rotten boroughs at home. When Hume figured before the
House, with his bales of statistics, these plain men could arrive at the
sum total of what he was at. When Canning's arrows whirled about the
heads of the Opposition, they could see them quivering in the flesh of
his antagonists. When Romilly's eloquence wafted gently over them, they
were refreshed and delighted. And even when Brougham shook the walls
like an earthquake, they understood why they held so fast to their
seats. But Mackintosh's Plato and Priam, his Homer and his Helicon, were
"Greek" to them. His speeches were better adapted to be read in the
library of the scholar than to be heard in the Commons House of
Parliament. It was these defects in his oratory, and his utter want of
all taste for business, and his indolent and immethodical habits, which
kept him behind men of inferior talents and acquirements while his party
was in opposition, and gave him no prominent place in its counsels when
it assumed the reins of Government. Sydney Smith, in a characteristic
letter to Sir James's son, writes thus: "Curran, the Master of the
Rolls, said to Grattan, 'You would be the greatest man of your age,
Grattan, if you would buy a few yards of red tape, and tie up your bills
and papers.' This was the fault or misfortune of your excellent father.
He never knew the use of red tape, and was utterly unfit for the common
business of life."
Mackintosh was a man of the purest benevolence and the liveliest
philanthropy. He held all his vast literary and philosophical
attainments cheap in comparison with his labors in the cause of
humanity. The friendless criminal, shuddering in the dock under the
frown of some heartless judge--the imbruted slave, writhing under the
lash of a task-master in the islands of the West--the yeoman at his
plow, deprived of the electoral rights which the very sods he tilled
could enjoy--the educated Dissenter and Catholic, shut out from stations
of honor and trust for refusing a test which stained their consciences,
were all advanced to a higher civilization and a broader field of civil
and religious freedom, by his aid. He was the zealous co-worker of
Wilberforce and Clarkson, of Brougham and Buxton, of Sturge and
Lushington, in the work of negro emancipation. His last, greatest,
speech in Parliament was on the Reform Bill. Bulwer says of it: "I shall
never forget the extensive range of ideas, the energetic grasp of
thought, the sublime and soaring strain of legislative philosophy, with
which he charmed and transported me." Before such services as he
rendered to the cause of man, how all the acquisitions and displays of
the scholar and the metaphysician grow pale!
I have spoken of his intimacy with ROBERT HALL. There was a striking
similarity in the structure of their minds and in their literary tastes.
The politician was a classical, philosophical lawyer and
Parliamentarian. The divine was a classical, philosophical theologian
and preacher. Each was fond of abstract speculation--each was a profound
and original reasoner and thinker--each reveled in the literature of the
ancients--each was a writer of whom any nation or age might be proud.
Hall much excelled his friend in the high walks of oratory, and the
power of riveting, of transfixing an auditory, and holding them
spell-bound while he played with their passions and emotions with
masterly skill. The first pulpit orator of his day, in the zenith of his
fame he could attract a greater crowd of rare men than any other
preacher in the metropolis or the country. The same cannot be affirmed
of Mackintosh in the theater where he displayed his forensic powers. The
speech which so transported Bulwer _in_ the House of Commons, because
of defects in the delivery transported half the members _out_ of it.
Each shone no less in the social circle than in the forum. While
Mackintosh was the more ornate and classical talker, Hall surpassed him
in keen sarcasm and solid argument. The conversational talents of Hall
were more appreciable by ordinary capacities, his style being racy,
off-hand, bold. Mackintosh was fitted to be the companion of polite
scholars and learned critics, and his conversation was more showy,
dazzling, and prepared. The wit of Hall, when in full play, approached
to drollery, and his sarcasm cut to the bone. The wit of Mackintosh was
Attic, and his sarcasm refined and delicate. Hall crushed a pedantic
fool with a single blow of his truncheon. Mackintosh tossed him on the
end of his lance. Hall made no effort to shine in society, and all his
good things seemed to bubble up naturally from a full fountain, whilst
his strength was reserved for public exhibitions, where he shone in
splendor. Mackintosh elaborated his social effusions, (and it was his
weakness,) and his best things gushed like _jet d'eaus_ from prepared
reservoirs; and if he failed to win applause at St. Stephen's, he was
sure to be the center of attraction at Holland House. Hall put down
upstartism like a judge at _nisi prius_ rebuking a shallow barrister for
contempt of court. Mackintosh pricked the gas-bag with the delicate
instrument of his irony. Hall was loved by his friends. Mackintosh was
admired by his associates. Each was a philanthropist and reformer, and
each in his sphere was in advance of his times in catholicity of spirit,
boldness of speculation, and freedom from the cant of party and sect.
The works of Mackintosh are numerous--though some of his best writings
hardly deserve to be called _works_, in the incomplete state in which he
left them. Besides those already mentioned, there may be noted many rich
contributions to the Edinburgh Review and other periodicals--some
Parliamentary and anniversary speeches--a beautiful life of Sir Thomas
More--an acute and eloquent dissertation in the Encyclopedia Britannica
on the General View of the Progress of Ethical Philosophy--and a
Fragment of English History concerning the Revolution of 1688.
During his lifetime, Sir James was abused by the Tories; nor did the
tirade cease at his death. Somewhat covetous of fame, and utterly
reckless of gold, he left little to his children, except a brilliant
reputation and principles that can never die.