Various - Blackwood's Edinburgh Magazine - Volume 61, No. 376, February, 1847

It may be gathered from what has gone before, that Mr. Smith's mind was one of equal activity and strength. His physical energies might flag, but never those of his mind. He was always ready to pass from protracted and intense professional study and exertion, to other kinds of mental exercise—"from gay to grave, from lively to severe"—either reading general literature, or amusing himself with slight affairs such as the foregoing; or, as soon as a little leisure had recruited his spirits, entering with infinite zest into superior conversation on almost any topic that could be started. He was for a long time shy and distant to strangers; but was quite a different person at the tables, and in the company, of his old friends and companions. There certainly never sate at my table a man who, when in the humour, could supply for hours together such genuine fun and amusement as Mr. Smith. Our little children were always very glad to see him, for he was patient and gentle with them, and contrived really to entertain them. Towards ladies, his manner was always most fastidiously delicate and courteous. There was, if I may so speak, a smack of days gone by—a kind of antique and rather quaint gracefulness of demeanour and address, which I used frequently to contemplate with lively interest and curiosity. When he returned from dining out, to his chambers, he would light his candles, and, instead of going to bed, sit up till a very late hour; for not only had he much to get through, but was a bad sleeper. A few years before his death, he had become a member of the Garrick Club, which was ever after his favourite resort, and was also frequented by several other members of the bar. He was delighted to take a friend or two to dinner with him, and would entertain them most hospitably, and with increasing frequency, as his means became rapidly more ample. He was also fond of the theatres, taking special delight in comedies and farces, however broad, and even pantomimes. With what solemn drollery he would afterwards dwell on the feats of Clown and Pantaloon! I am here, however, speaking of several years ago; for latterly he said, "It was a very hard thing to find any thing to laugh at in a pantomime, however much one tried!"

During the years 1842, 1843, and 1844, his practice continued steadily increasing, and that, too, in the highest and most lucrative class of business—not only before special juries at Nisi Prius, and the Courts in Banc and in Error in the Exchequer Chamber, but in the Privy Council and the House of Lords. Before the last tribunal, in particular, he appeared as one of the counsel in the O'Connell case, on behalf of Mr. O'Connell and his companions. His time was now incessantly occupied, by day and night; his slight intervals of relaxation necessarily becoming fewer and fewer. His evenings, indeed, were almost always occupied with arbitrations, consultations, or preparing those pleadings and writing those opinions which his constant attendance in the Courts prevented his then disposing of. His friends saw with pain how grievously he was over-tasking his strength, and earnestly importuned him to give himself more intervals of relaxation—but in vain. For nearly two years before his death, his haggard countenance evidenced the direful havoc which he was making of a constitution never of the strongest. Sir William Follett and he were both sitting at the bar of the House of Lords, on one of the latest days of the hearing of Mr. O'Connell's case, each within a yard or two of me. Two death-doomed beings they looked, each, alas! having similarly provoked and accelerated his fate. On the same afternoon that Sir William Follett leaned heavily and feebly on a friend's arm as he with difficulty retired from the bar, I went home in a cab with Mr. Smith, who sate by me silent and exhausted, and coughing convulsively. I repeatedly conjured him to pause, and give his shattered health a chance of recovery, by retiring for a few months, or even for a year or two, from the excitement and wasting anxieties and exertions of business; but he never would listen to me, nor to any of his friends. "It is all very well," he said to me several times, "to talk of retiring for a while ; but what is to become of one's business and connexion in the mean time? You know it will have melted away for ever." He had, however, been persuaded to consult a physician of experienced skill in cases of consumption; who, after having once or twice seen him, sent a private message to the friend who had prevailed on Mr. Smith to call upon him; and on that friend's attending the physician, he pronounced the case to be utterly hopeless; that it might be a matter of months, even; but he ought to be prepared for the worst, and apprised of his situation. His friend requested the physician to undertake that duty, assuring him of his patient's great strength of mind and character: but he declined. Mr. Smith spent the long vacation of 1844 with his brothers and sisters in Ireland. They were shocked at his appearance, and affectionately implored him not to return to England, or attempt to resume his professional duties; but in vain. While staying in Ireland, he regretted the fast flight of time, evidently clinging to the society of his brothers and sisters, to the latter of whom he was most devotedly attached; but bleak, bitter, blighting November saw him again established at the Temple, and fairly over head and ears in the business of the commencing term. He attended the courts as usual; went out in the evenings to arbitrations and consultations as of old; dined also at the Garrick as before, and sat up as late at nights as ever. We all sighed at this deplorable infatuation; but what could we do? He was a man of inflexible will, and a peculiar idiosyncracy. Remonstrance and entreaty, from the first useless, at length evidently became only irritating. Not a judge on the bench, nor a member of the bar, but regretted to see him persist in attending the courts; where he sat and stood, indeed, a piteous spectacle. He resolved on going the Spring Circuit in 1845, being retained in some of the heaviest cases tried there. Shortly before this, the friend already referred to resolved to perform the painful duty of telling him, that in his physician's opinion there was not a ray of hope for his recovery; a communication which he received with perfect calmness and fortitude. To his brother's entreaties, about the month of June, that he would either go abroad, accompanied by one of his brothers or sisters, or allow the latter to come and live with him, in a house a little removed from town, he steadily turned a deaf ear. He evidently knew that it was useless; and spoke of his desperate state as calmly as he would have done in referring to the case of a mere stranger. It is believed that his sole reason for refusing to permit his sister to come over, was his fond and tender regard for her—a reluctance to permit her to witness him waste away, injuring in vain her own health and spirits. About this time, he said to his brother very quietly, but sadly, that "he feared his sisters would soon have to bear a severe shock!" He sat in his chambers, which were within only a few yards' distance from the Temple Church, on the day of Sir William Follett's funeral. He heard the tolling of the bell, and from his window 11 11 His chambers were No. 2, Mitre Court Buildings, to which he had removed from No. 12, King's Bench Walk, about two years before. he could have seen much of that solemn ceremonial. What must have been his feelings? This was on the 4th July; and five days afterwards, (viz. on the 9th,) poor Mr. Smith appeared, I believe for the last time in the Court of Exchequer, during the post-terminal sittings in Trinity vacation, to argue a demurrer! I was present during part of the time. What a dismal object he looked, while addressing the Court! I think we drove up to the Temple together. He had argued the case of Bradburne v. Botfield, (reported in 14 Meeson and Welsby, 558,) the last time, I believe, that his name appears in the Reports. It was a very nice question, as to whether certain covenants in a lease were joint or several: his argument was successful, and the Court gave judgment in his favour. The next day he said to me, speaking of this occasion, "The judges must have thought me talking great nonsense: I was so weak, that it was with very great difficulty I could keep from dropping down, for my legs trembled under me all the time violently, and now and then I seemed to lose sight of the judges." Yet his argument was distinguished by his usual accuracy, clearness, and force of reasoning. Nobody could prevail upon him to abstain from going the summer circuit. He went accordingly, and unless I am mistaken, held several heavy briefs. When the northern circuit had closed, I joined my family at Hastings; and found that poor Mr. Smith was staying alone at the Victoria Hotel, St. Leonards. I called upon him immediately after my arrival. His appearance was truly afflicting to behold. Consumption had fixed her talons still deeper in his vitals. He sat in an easy chair, from which he could not rise without great effort; and he expressed himself as delighted that I, and another of his oldest friends, happened to have established ourselves so near him. He was quite alone—no friend or relative with him; several briefs, &c. lay on his table, together with the most recent numbers of the Reports, several law-books, and works on general literature. A Bible also lay in the room, with several papers placed within the leaves. Nothing could exceed the attention paid him by the landlady and her daughter, and the servants; but he gave them very little trouble. His cough was much aggravated, as were the wasting night-sweats; and he could walk only a few steps without assistance. Soon after having got to Hastings, I was summoned away to attend a court-martial at Leeds, which kept me there for upwards of a fortnight. On my return, Mr. Smith expressed a lively anxiety to hear from me a detailed account of "how the military managed law." He seemed never tired of hearing of those "curious proceedings," as he styled them. I spent nearly two hours a day with him during the remainder of my stay, accompanying him in long drives whenever the weather permitted. Weak though his body was, his mind was as active and strong as ever. I saw several as heavy "sets" of papers, from time to time, forwarded by his clerk from London, according to Mr. Smith's orders, as I had ever seen even in his chambers. When I implored him to send them back, and take a real holiday, he answered simply, "No; they must be attended to,"—and he did so: though I saw him once unable from weakness to lift a brief from his knees to the table. I never beheld so calm and patient a sufferer. He never repined at the fate which had befallen him, nor uttered a word showing impatience or irritability. When we drove out together, he generally said little or nothing the whole time, lest his cough should be aggravated, but was very anxious to be talked to. Once he suddenly asked me, when we were driving out, "Whether I really ever intended to permit him to see the sketch of Follett, which I was preparing." I parried the question, by asking him, "Whether he thought Sir William Follett a great lawyer."—"Certainly," said he, "if there be such a character as a great lawyer. What thing of importance that only a great lawyer could do, did not Follett do? He necessarily knew an immensity of law; and his tact was a thing quite wonderful. I was a great admirer of Follett.... I once heard him say, by the way, that either he had applied for the place of a police magistrate, or would have accepted it, if it had been offered, soon after he had come to the bar; so that it is quite a mistake to suppose that he was all at once so successful.... And I can tell you another little fact about Follett: though perhaps no man took so few notes on his brief, during a cause: this was not always so; for, when he first came to the bar, he took most full and elaborate notes of every case, and prepared his arguments with extreme care. I have seen proofs of this." Shortly before his leaving town, he purchased a copy of Thirlwall's (the Bishop of St. David's) History of Greece, in eight volumes, "to read over at the sea-side;" and he did so: telling me that "he liked it much,—that it had told him many things which he had not known before." This copy his brother presented to me after Mr. Smith's death, and I value it greatly. One morning I found him much exhausted; but soon after I had taken my seat, he said, "You can oblige me by something, if you will do it for me. I recollect that there is generally lying on your table, at chambers, 'Bell's Principles of the Law of Scotland.' Now I am very anxious to read the book, as I expect to be in one, if not two, Scotch appeal cases, in the House of Lords, next session!—Will you do me this favour?" Of course I immediately procured the book to be forwarded to him, and it afforded him uncommon pleasure for many days. He read it entirely through with deep attention, as his numerous pencil marks on the margin attest, as well as several notes on the fly-leaf, of leading points of difference between our law and that of Scotland. At page 35, §76, the text runs thus:—"Tacit acceptance may be inferred from silence, when the refusal is so put as to require rejection, if the party do not mean to assent; as when a merchant writes to another, that he is against a certain day, to send him a certain commodity, at a certain price, unless he shall previously forbid." Opposite to this, Mr. Smith has written in pencil, " Surely one man cannot throw the duty of refusal on another, [in] that way? " In the course of a little discussion which we had on this subject, I said, "Suppose the parties have had previously similar transactions?"—"Ah," he answered, "that might make a difference, and evidence a contract to the effect stated; but as nakedly enunciated in the text, I think It cannot be the law of Scotland, or law any where." He made many interesting and valuable remarks from time to time on Scotch law, and expressed a high opinion of the work in question, referring to every portion of it as readily as though it had been his familiar text-book for years. I often found him reading the numbers of the Queen's Bench, Common Pleas, and Exchequer Reports; and he once said, "I have a good many arrears to get through, in this way, before the beginning of term!" One day I saw a prodigious pile of law papers lying on his table, which had just arrived from London. "Why, what are these, my dear Smith?" said I earnestly—for he lay on the sofa in a state of miserable exhaustion. After some minutes' pause, he replied, "It is a very troublesome case. I have to reply or demur to some very harassing pleas of ——."—"But why not postpone them till near the end of October?" "When I am not fatigued, papers amuse me, and occupy my attention." I offered to him my services. "No, thank you—it would fatigue me more to explain the previous state of matters, with which I am familiar, than to draw the pleadings"—and he did it himself. On another occasion, I saw him sitting in his easy chair, deadly pale. When I had placed myself beside him, he said in a faint tone, but calmly and deliberately, "This morning a very serious thing has happened to me," and he mentioned a new and very alarming feature in his complaint, which, alas! fully justified his observation; and during the day he allowed me to request Dr. Duke, who was attending a patient in the hotel, to see him. He did—and on quitting him, told me that of course the case was hopeless; that his friends should be sent for, and he would not answer for his life for a few weeks, or even days. Two or three days afterwards, Dr. Duke saw him again, and had left him only half-an-hour when I called. He was writing a letter to an old friend (one of his executors,) and his face wore an expression of peculiar solemnity. Laying down his pen, and leaning back in his chair, he gently shook my hand, and, in an affectionate manner, said, "Warren, I have just had a startling communication made me by Dr. Duke; he has told me plainly that I cannot live much longer,—that recovery is utterly out of the question,—and that I am nearer death than I suppose." After a pause, I said, "He has been faithful, then, my dear Smith. It was his duty; and I trust he did it in a prudent manner."—"Perfectly," he replied. Profound gloom was in his features, but he was perfectly calm. Presently he said, covering his face with his attenuated hand, "I have none to thank but myself; I have killed myself by going the last circuit, but I could not resist some tempting briefs which awaited me! I now regret that I did not allow my sister to come over, months ago, and go with her to the South of France; but of course wishing now is useless." Again I entreated him to allow her to be sent for. "My dear Warren," said he very decisively, "you and B. have often asked me to do so. I beg you to do so no more. I have private reasons for declining to follow your advice." His voice slightly faltered. His "private reasons" have already been adverted to—they were, his tender love for one whom he would not shock by showing himself to her in the rapid progress of decay! From that day I never saw the semblance of a smile upon his face, nor any appearance of emotion, but only of solemn thoughtfulness. A few days afterwards I said to him, "Well, if it be the will of God that you should never return to your profession, it is certainly consolatory for you to reflect how great a reputation you justly enjoy at the bar, and in how short a time you have gained it. Your name will live." He made no answer for some minutes, but shook his head, and then said, "I have done nothing worthy of being remembered for; but you are very kind for saying so." Even after this, the mail every now and then brought him fresh "papers" from town; and Miss ——, the daughter of the landlady, and who attended him with the utmost solicitude, one evening burst into tears, as she showed me a fresh packet; adding, "It is really heart-breaking to have to take them in to him: he is so weak that he feels a difficulty in even opening them!" It was so, indeed! The two old friends whom he had named as executors, came down to St. Leonards two or three times, and spent several days with him. As the time for our family's return to town approached, he evidently regarded it with uneasiness, and almost daily said, "Must you really go by the 15th?... And —— is also going before that: then I shall be left quite alone, and shall certainly feel dull." A friend of mine, a lady, who resides near St. Leonards, having requested me to introduce her to him, in order that when we were gone she might come and see him, I asked him if he would allow me to do so? "Indeed," said he, faintly, and with a slight flush, "I should not only feel it a compliment, but extremely kind." The lady in question accordingly drove down very kindly almost daily, bringing him grapes and flowers, which he said he felt to be a very delicate attention: and so anxious was he to evince his sense of her courtesy, that he insisted on driving, when very feeble, on a bleak day, to leave a card at the lady's residence, nearly three miles off, with his own hand. When I took my leave of him, he seemed, I thought, a little moved; but said calmly, "If the weather breaks up, I shall return to the Temple: and it is possible that I may take lodgings in another part of the town; but to court I must go, at whatever inconvenience—for I have cases there which I must personally attend to!"