CHAPTER X.

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.

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