is altogether incorrect. The law merchant thus spoken of with reference to bills of exchange and other negotiable securities, though forming part of the general body of the lex mercatoria, is of comparatively recent origin. It is neither more nor less than the usages of merchants and traders in the different departments of trade, ratified by the decisions of courts of law, which upon such usages being proved before them have adopted them as settled law with a view to the interests of trade and the public convenience. By this process what before was usage only, unsanctioned by legal decision, has become engrafted upon or incorporated into the common law and may thus be said to form part of it. It thus appears that all these instruments which are said to have derived their negotiability from the law merchant had their origin, and that at no very remote period, in mercantile usage and were adopted into the law by our Courts as being in conformity with the usages of trade; of which, if it were needed, a further confirmation might be found in the fact that according to the old form of declaring on bills of exchange the declaration always was founded on the custom of merchants. Usage adopted by the Courts having been thus the origin of the whole of the so-called law merchant as to negotiable securities, what is there to prevent our acting up to the principle acted upon by our predecessors and followed in the precedents they have left to us? Why is it to be said that a new usage which has sprung up under altered circumstances is to be less admissible than the usages of past times? Why is the door to be now shut to the admission and adoption of usage in a matter altogether of cognate character as though the law had been finally stereotyped and settled by some positive and peremptory enactment?" Among the many trials of popular interest over which he presided may be mentioned that of Saurin v. Starr, by a sister of mercy against her lady superior for assault-a case which revealed the miserable inner life of the convent, its triviality, spite, and petty tyranny; the hideous Wainwright murder case; and, of course, the great Tichborne case. The summing up of the Lord Chief Justice in this memorable case, apart from his admirable conduct of the trial generally, is an unparalleled feat in judicial annals. It fills two volumes of 800 pages each, and reads like a romance. Not less memorable was the dignified rebuke which he administered to the prisoner's counsel. He spoke of "the torrent of invective," "of dirty foul slime" which had been poured forth "And on everybody and the necessity for the court intervening. how were we met?" he went on. "By constant disrespect, by insult and obloquy, by covert allusions to Scroggs and Jeffreys— judges of infamous repute as though, by the way, if the spirit of Scroggs' and Jeffreys' skill animated the Bench in the administration of justice, the learned counsel would not have been pretty quickly laid by the heels and put to silence." The following is a sample of Dr. Kenealy's rhetoric: "The assumption," he said, "of a man's guilt has never been the law of England, and in my judgment it is the law of Hell itself to assert that people are guilty at the very outset of a trial." The Lord Chief Justice retorted: "Dr. Kenealy, that is a very improper remark. We have no cognisance here of the laws of the place you have mentioned, nor ought they to be cited in a court of justice." "If your Lordship takes upon yourself to prescribe what language a counsel shall use- "I take upon myself to forbid language which, if not blasphemous, is certainly most improper." At the banquet given by the Bar in 1864 to the great French advocate, M. Berryer, Lord Brougham was present, and in a fine speech declared that "The first great quality of an advocate is to reckon everything subordinate to the interests of his client." A few minutes later the Lord Chief Justice was replying to the toast of "The Judges of England.” "Much as I admire," he said, "the great abilities of M. Berryer, to my mind, his crowning virtue-as it ought to be that of every advocate is that he has throughout his career conducted his cases with untarnished honour. The arms which an advocate wields he ought to use as a warrior, not as an assassin. He ought to uphold the interests of his clients per fas and not per nefas. He ought to know how to reconcile the interests of his client with the eternal interests of truth and justice." Those words are the best epitaph which can be bestowed on Sir Alexander Cockburn. MR. JUSTICE WIGHTMAN, MATTHEW GREEN, in his charming little poem entitled "The Spleen," describes: Law grown a forest, where perplex The mazes, and the brambles vex Where it's twelve verderers (a) every day Are changing still the public way: Yet, if we miss our path and err. We grievous penalties incur, And wanderers tire and tear their skin, And then get out where they went in. Of course, we have changed all that: Ημείς τοι πατέρων μεγ ̓ ἀμείνονες ἔυχομεθ ̓ εἶναι. But in the days of special pleadings, the description was, alas! too near the truth. In reading the old cases, the thought that strikes us is what a mere chance it is whether the real issues are ever reached, whether the parties ever penetrate to the Temple of Justice through the jungle of technicalities which have grown up around it. But, whatever the fate of litigants in those days, the system of special pleading fostered a fine race of lawyers, experts in legal swordsmanship: They practised every pass and ward, To thrust, to strike, to feint, to guard, Kenyon and Ellenborough, and Parke and Patteson, and last, not least, Wightman, were all men trained in this school. But merits must come first in any legal system which is to last, must come before even costs or practice or pleading; hence to-day the special pleader is as extinct as the apterix or the dodo. One last solitary survivor is embalmed in the Law List. In a sense this is regrettable. Special pleading was not a tempting vocation—a well-known practitioner said to a friend who was (a) In Green's time the judges were only twelve in number. meditating it for his son, "Can he eat sawdust without butter?" -but practising below the Bar had one advantage, it enabled a man to form a connection before he risked his fate at the Bar. A common-law barrister, so Lord Brougham once said, can only get on by special pleading, by sessions, or by a miracle. Special pleading, in other words, was safe, and as such Wightman, despite the want of butter to the sawdust, adopted it. He was thirtyseven before he ventured to be called to the Bar. When he was called, he had no sensational début, he made no eloquent speeches, he never tried to get into Parliament, he never even applied for a silk gown. He had that strange and rare quality of a lawyer, an invincible modesty. So far from courting what ambitious juniors covet-the being called on to lead a cause in the absence of their leader-he actually shunned such opportunities of éclat, so his colleague Sir John Coleridge said; albeit, Sir John adds, "he would have led with exquisite judgment." Of the two great leaders of his circuit-the Northern-he has left us an interesting anecdote. After the breaking up of the court on the last day of a long Yorkshire Assize, he (Wightman) found himself walking in the crowd cheek by jowl with a countryman whom he had seen serving day after day on the jury. Liking the look of the man, he got into conversation with him, and, finding that this was his first attendance at the assizes, asked him what he thought of the leading counsel. "Well," was the reply, " that Lawyer Brougham be a wonderful man; he can talk, he can; but I don't think nowt of Lawyer Scarlett." "Indeed!" exclaimed Wightman, “you surprise me. Why, you have been giving him all the verdicts." "Oh! there's nothing in that," said the juror; "he be so lucky you see, he be always on the right side." But if Wightman himself never figured as a Scarlett or a Brougham, he steadily built up for himself the reputation of a lawyer. He was junior counsel to the Treasury for ten or twelve years, he was appointed on the Commission for the amendment of the law in 1830, and again on the Commission of 1833 for digesting the criminal law. These were, of course, steppingstones to the Bench, and when the learned Littledale retired from the Court of Queen's Bench in 1840 Wightman was chosen by Lord Cottenham to fill his place. Here he sat for three-andtwenty years, dispensing justice with all the learning of a Littledale, and with a greater knowledge of the world and more promptitude of decision than Littledale; the trusted colleague of three successive chief justices-Denman, Campbell, and Cockburn. When he sat alone at Nisi Prius, or on the trial of criminal cases, it was so says Sir John Coleridge as quoted by Mr. Foss"in a good sense, a great judicial display-always careful as to his appearance and dress, dignified without the slightest ostentation; very courteous, yet very firm; quiet, saying little, but that little very pointedly, in the course of the case; very attentive and losing nothing, disposing of points as they arose shortly and with ease and distinctness, presenting the question and the circumstances as they bore on it to the jury with the greatest precision, and inevitably making them feel entire confidence in his impartiality. The man who had a good cause, or the innocent prisoner, rejoiced that he had him for a judge, while he against whom the verdict passed felt, at least, the satisfaction that no favourable point had been overlooked or undervalued, nothing adverse exaggerated or unduly pressed." After this panegyric, this portraiture of the ideal judge, it is refreshing to find that Wightman had some human frailty, and that under the stress of an anxious case he would occasionally indulge not indeed in outbreakings-but in slight "outpourings of querulousness"; but such outpourings were "free from illtemper," and no one was afterwards more ready to smile at them than himself. A rich vein of humour ran through all his conversation, quite untranslatable, but the more racy to professional hearers from its very commonly clothing itself in quaint professional diction. "I remember," says Ballantine, upon a trial at the Maidstone Assizes, a very excellent and learned friend of mine, not, however, famed for his brevity, had been for some time enforcing his arguments before a Kentish jury. Mr. Justice Wightman interposing said: 'Mr. you have stated that before.' Have I, my lord?' said the barrister; 'I'm very sorry, I quite forgot it.' 'Don't apologise, Mr. -,' was the answer; it was a very long time ago.' A witness in the box on another occasion was describing a certain person, and said: "He is forty or forty-five years old. He is an independent gent.'' Wightman, J.-" Gentleman?' |