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

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СКАЧАТЬ and unjustifiable attack upon him, nor evinced any pleasure in the friendly congratulations showered upon him. His sensitive mind had, indeed, been thoroughly shocked by the imputation which had been sought to be fixed upon him; and the only feeling on the subject which he ever expressed to me, or appeared to entertain, was one of calm indignation. I must say that in this I think he was abundantly justified. He repeatedly told me that he should never write another book, for "that he had had quite enough of it." As it happened, he never did; nor do I think that he would ever have done so, even had his career not been cut short by death. Whenever works of solid interest and importance in general literature appeared, Mr. Smith was very eager to peruse them, and seldom failed in doing so. I recollect him one day borrowing from me the first volume of Mr. Hallam's, "Introduction to the Literature of Europe in the 15th, 16th, and 17th Centuries," which was published alone early in 1837. He read it with great interest, and reviewed it very ably in this Magazine—his only contribution to its pages, in the No. for May, 1837.

      He was about the same time reading largely in the State Trials, and frequently conversed with me upon their interesting character, wondering that they had so seldom been made really available for the purposes of amusing literature. He himself selected one of the trials as one possessed of peculiar capabilities, and intended to have completed it for this Magazine, but was prevented by his other labours. These lighter occupations, however, were soon interfered with by his appointment, as already intimated, to be Common Law Lecturer to the Law Institution in Chancery Lane, in November, 1837. This he owed entirely to his own merit, and the reputation which his writings had already gained him in the profession. I knew that fears were entertained by the directors of that important institution, lest his unpopular manner should stand in the way of his usefulness as a lecturer; but aware of his rare intellectual and legal qualifications, they wisely resolved to try an experiment, which completely succeeded. I recollect accompanying him, at his own request, to deliver his first lecture, at the close of 1837. He was somewhat fluttered when he made his appearance before his audience, but at once commenced reading with apparent calmness, a very able introductory lecture, which soon arrested attention, and caused the committee who sat before him to congratulate themselves on their selection. He held this appointment till March, 1843, during which time he delivered a great number of lectures to increasingly attentive auditories; and as he read over several portions of them to me, I am able to say that, in my humble judgment, they were of the highest value, for their clear, close, and correct exposition of some of the most difficult branches of the law. He had a great talent for communicating elementary information; and even the most ignorant and stolid of his listeners could scarce avoid understanding his simple and lucid explanations of legal principles. One series of his lectures on "The Law of Contracts," has just (1846,) been published6 verbatim from his MSS. as they were delivered, and fully justifies the opinion here expressed. He never designed them for publication, but solely for delivery to the attorneys' and solicitors' clerks, for whom the lectureship was founded; yet it is doubtful whether there be any book extant in which the difficult and extensive subject of contracts is, and that within the space of ten short lectures, comparably treated. The most youthful student, with only moderate attention, can acquire from it, in a short time, correct general notions calculated to be of infinite service to him, while able practitioners will regard it as at once concise, accurate, and practical, and evincing a thorough mastery of the subject in all its branches. In the words of his editor, "The lectures embody the chief principles of that branch of the law, and will be found equal to any of the former productions of the author for that clear, concise, and comprehensive exposition of his subject, which has characterised his works, and ensured the vitality of his reputation; popularising a branch of law which peculiarly affects the ordinary business of life; divesting it of the superfluities with which it is often encumbered; educing the great maxims, and broad rules by which it is moulded, and unravelling the perplexity in which an occasional conflict of judgments had from time to time involved it." I am not aware that Mr. Symonds had any personal knowledge of Mr. Smith, so that the more valuable is his concluding eulogium,—"That the profession already ranks him as among the most gifted of its writers, and most learned of modern lawyers." As an example of the ease and precision with which he elucidated the most difficult subjects, and brought them to the level of youthful capacities, I select the following brief passage on a most practically important subject, that of the "consideration" essential to support a valid simple contract, according to the civil law and that of England.7 After explaining the doctrine of "Nudum pactum," he thus proceeds:—

      "Now, with regard to the question,—What does the law of England recognise as a consideration capable of supporting a simple contract? the short practical rule" [after adverting to a well-known passage in Blackstone, for which he substitutes his own definition] "is, that any benefit accruing to him who makes the promise, or any loss, trouble, or disadvantage undergone by, or charge imposed upon, him to who it is made, is a sufficient consideration in the eye of the law to sustain an assumpsit. Thus, let us suppose that I promise to pay B £50 at Christmas. Now there must be a consideration to sustain this promise. It may be that B has lent me £50; here is a consideration by way of benefit or advantage to me. It may be that he has performed, or has agreed to perform, some laborious service for me; if so, here is a consideration by way of inconvenience to him, and of advantage to me at the same time. It may be that he is to labour for a third person at my request; here will be inconvenience to him, without advantage to me: or it may be that he has become surety for some one at my request; here is a charge imposed upon him: any of these will be a good consideration to sustain the promise on my part....

      "Provided there be some benefit to the contractor, or some loss, trouble, inconvenience, or charge imposed upon the contractor, so as to constitute a consideration, the courts are not willing to enter into the question whether that consideration be adequate in value to the thing which is promised in exchange for it. Very gross inadequacy, indeed, would be an index of fraud, and might afford evidence of the existence of fraud; and fraud, as I have already stated to you, is a ground on which the performance of any contract may be resisted. But if there be no suggestion that the party promising has been defrauded, or deceived, the court will not hold the promise invalid upon the ground of mere inadequacy; for it is obvious, that to do so would be to exercise a sort of tyranny over the transactions of parties who have a right to fix their own value upon their own labour and exertions, but would be prevented from doing so were they subject to a legal scrutiny on each occasion, on the question whether the bargain had been such as a prudent man would have entered into. Suppose, for instance, I think fit to give £1000, for a picture not worth £50: it is foolish on my part; but, if the owner do not take me in, as the phrase is, no injury is done. I may have my reasons. Possibly I may think that I am a better judge of painting than my neighbours, and that I have detected in the picture the touch of Raphael or Correggio. It would be hard to prevent me from buying it, and hard to prevent my neighbour from making the best of his property, provided he do not take me in by telling me a false story about it. Accordingly, in the absence of fraud, mere inadequacy of consideration is no ground for avoiding a contract."8

      Those who are acquainted with the practical difficulties of this subject, will best appreciate the cautious accuracy, and yet elementary simplicity and clearness, which characterised his teaching: he being then, be it remembered, little more than twenty-eight years of age.

      His writings having thus led to his being placed in a situation where he had ample opportunities for exhibiting legitimately to the profession his great legal acquirements and abilities, it was not long before he became sensible of making his way, but gradually, nevertheless, into business. He had given up practising at sessions some time before, and resolved thenceforth to address himself entirely to civil business in London, and at the Assizes. The late Mr. Robert Vaughan Richards, Q.C.,9 then one of the leaders of the Oxford Circuit, and himself an eminent lawyer and accomplished scholar, was one of the earliest to detect the superior qualifications of Mr. Smith, and lost no fair and legitimate opportunity of enabling him to СКАЧАТЬ