MR. FOSS'S "BIOGRAPHIA JURIDICA."*
Two or three years after Lord Campbell had earned for himself the reputation of a popular author and an unsafe historian by the publication of his Lives of the Lord Chancellors, Mr. Foss gained a very different name by bringing out his Judges of England. Gene- rally dry and matter-of-fact, sparing of anecdote and illustration, dealing with names of which many were forgotten, the second • Biographia Juridica : a Biographical Dictionary of the Judges of England from the Conquest to the Present nue, 1068-1070. By Edward Foss, F.8.8.. London: Murray 1870.
biographer was yet recognized as the sounder authority. The editor of the present work, which Mr. Foss lived to complete, but not to publish, refers to the constant quotation of the Judges of England by the German historian, Dr. Pauli, as a proof of the estimation in which the Lives are held by scholars. It might be difficult to find a better proof of the trustworthy nature of the book. Yet, partly owing to the causes stated above, partly to the chronological arrangement of the lives of the judges under the reigns which coincided with their terms of office, Mr. Foss's work has not been popular. We cannot say that the book now before us, which contains much of the matter of the older work, will be more likely to attract the general public. A biographical dictionary is necessarily more of a book of reference than of a book to be taken up and read through at any number of sittings. It is true that the inconvenience of the arrangement of the earlier work has been avoided, and that we can find the judge we want at once, instead of having to look for him under different kings and in different volumes. But Mr. Foss's extreme industry and wide research still give the prevailing tone to his pages. With the lives of Erskine and Eldon, of Holt and Mansfield, of Brougham and Lyndhurst, of Bacon and More, of Wolsey and Becket, we have to accept hundreds of unknown names disinterred with great labour, but hardly worthy of resus- citation. Such a result is indeed inseparable from Mr. Foss's design, and be would accept it as sufficient praise that he had pro- duced the standard work of English judicial biography.
How powerfully such a collection of lives illustrates Mr. Galton's theory of hereditary genius must appear to everyone who merely turns over the leaves. It has, however, been observed that at the Bar, where success is in many cases the result of connection, the rise of a judge's son is no proof of especial aptitude. A man who has the good sense to follow his father's profession has naturally many advantages over those who may be said to found their families. Whether talents can be inherited or not, it is certain that advice and experience and practice are most valuable legacies, and when by their help an early success has been attained the chances are that it will continue. The case of those who have had no similar assistance, and have yet earned the highest judicial rank, is much more remarkable. Perhaps the most striking lesson to be learnt from their lives is that no rule can be laid down on the subject. One man carries all before him at an early age and seems never to hear of reverses. Another labours on in the face of great discouragement and is at last successful. We may take, on the one hand, Justice Buller, who began practice as a special pleader at the age of nineteen, and was made a judge when he was only thirty-two. Lord Cairns, again, affords a singular instance of rapid promotion. Entering Parliament at the age of thirty-three, he was made a Queen's Counsel after only eight years' practice, and in the course of eighteen months he held all the three offices of Attorney-General, Lord Justice of Appeal, and Lord Chan- cellor. Sir John Rolt, too, who was called to the Bar after being clerk to a proctor in Doctors' Commons, became a Queen's Counsel after only nine years' practice. Contrast with such instances that of Lord Eldon, who only made half a guinea during his first year at the Bar, and who was so discouraged by his want of progress in the Chancery Courts that he was on the point of retiring to his native town as a local counsel when he suddenly met with fortune. Lord Camden again, although son of a Chief Justice, went circuit for some years without having any business, and at length made up his mind to retire on his fellowship and take a college living. " This resolution," says Mr. Foss, " he communicated to his Bar friend, Sir Robert Henley (afterwards Lord Northington), who strongly dissuaded him from pursuing it, and induced him at least to try another circuit. Henley then contrived to get him retained as junior to himself in an important case, and knowing that his talents only wanted an opportunity to be recognized, feigned ill- ness at the hearing and left his young friend to defend the cause• This he did in so effective a manner as to secure him that full share of business which relieved him from any future anxiety." A further coincidence between Lord Eldon and Lord Camden, as well as a further contrast with the cases of rapid success to which we have alluded, is that it took seventeen years' practice to gain for the one a patent of precedence, for the other a silk gown.
Although when Mr. Foss ordered his lives chronologically, it was much easier to appreciate the gradual changes of our law, many details are still to be found which bear upon that subject. What a terrible state of things is disclosed by the account of three hundred people who were in court during a trial catching the gaol fever and dying ! One such incident happened at Oxford during the reign of Queen Elizabeth. But as late as 1750 the gaol fever was communicated to the people who crowded the court of the Old Bailey, and it carried off no less than forty persons, including two of the judges. Of all those named in the commis- sion for that session only two escaped, and they were the Chief Justice and the Recorder of London. Three years afterwards the Recorder was promoted to the bench of the Exchequer, and it is said that he owed his advancement to the King's appreciation of the way in which he made his report upon the convicts under sentence of death. While the Ministers were discussing the claims of various men, George II. interrupted them by calling out in his usual English, " I will have none of dese ; give me de man wid the dying speech." At that time, and indeed, till within the last few years, one of the Barons of the Exchequer was called the cursitor baron, and was supposed to inform the rest of the Court of the course of business in any matter that concerned the Royal prerogative. But these duties gradually dwindled down till they became wholly nominal, and it is said that the last cursitor baron had nothing to do save " to join in the Michaelmas solemnities of the sheriffalty of London." Down to a compara- tively recent date there was scarcely any line of distinction between the Chancery and common-law practice. When Lord Eldon first went to the Bar, there were only twelve or fifteen counsel practising in Chancery, and later still Chancery men went circuit. Lord Cranworth was made a common-law judge, though he had belonged to the Equity Bar, but he had also gained some knowledge of criminal law by holding the recordership of Ipswich. The fact of the Court of Exchequer having an equitable jurisdiction no doubt made the transition more easy, but against this must be placed the direct antagonism of the two systems. Even now, with a partial fusion of law and equity, it seems hard for the same mind to grasp the details of both, and the more minutely one branch is mastered, the greater is the risk of confusion in passing to the other. A man has quite enough to do to be familiar with his own department, just as a man who has much work confines himself to one court. Mr. Foss tells us that Lord Langdale, when he was at the Bar, refused to leave the Rolls' Court and go into the Exchequer for a fee of 3,000 guineas.
From what we have said of the characteristics of this work, our readers will be quite prepared to find that when Mr. Foss and Lord Campbell differ, the former has by far the best of the encounter. An instance of this occurs in the life of Chief Justice FitzJames, whom Lord Campbell set down as being of obscure birth, as succeeding by social arts and agreeable manners, as wanting in moral character and professional knowledge, and as being ungrate- ful to his friends, subservient to those in power, cruel, and oppres- sive. It is significant that Mr. Foss with all his research has not been able to find any of the authorities on which Lord Campbell relies for these charges, and that where he has traced Lord Campbell's statements to their source, they are proved to be inaccurate. Still, in his biography of Lord Campbell, Mr. Foss grants to the full the popularity of the Lives of the Chancellors, and makes some allowance for the " looseness and occasional in- correctness" which be thinks inseparable from a work of so many volumes composed with such rapidity. There is something in this admission, coming as it does from such a quarter. The details we have already quoted show the extent and variety of Mr. Foss's reading, and if we wished to add anything in his praise, we should refer to the discussion upon Chief Justice Gascoigne, as showing how he could apply his knowledge. It may be a painful revelation to some who put their trust in princes to learn that the supposed reinstatement of that judge existed only in Shakespeare's play, and that the real Henry V. on coming to the throne ap- pointed another to be Chief Justice without the loss of a moment. Here, again, Mr. Foss is at variance with Lord Campbell. But in this case Lord Campbell was not the only one who was in error. Another point on which Mr. Foss seta most people right is the spelling of the name of Walter Mapes, the well-known author of that Latin drinking song, " Mild est proposituna in taberna mori." We are told that the right spelling is Map, and that the poet, who was one of the justices itinerant in the reign of Henry 1I., held the living of Westbury, in Gloucestershire. No one can be surprised at finding law associated with drinking, but surely an ecclesiastic, although a lawyer, might have paused before putting in the mouth of the angels the line quoted in Thackeray's English Hunzourists, " Deus sit propitius buic potatori." Of all the facts, however, in Mr. Foss's book, the most astonishing is that relating to Sir John Maynard. This veteran lawyer is said to have " left a will purposely worded so as to cause litigation, iu order that sundry questions which bad been moot points in his lifetime might be settled for the benefit of posterity." We have always understood that lawyers were too firmly wedded to the glorious uncertainty of their craft to wish anything settled, and
that in any case they knew too much about costs to wish their estates saddled with them. The squire in Lord Lytton's novel is astounded at seeing a homoeopathic doctor take his own medicine, but that miracle is nothing compared to the present. We will not go so far as to say that Mr. Foss is inaccurate, but our confidence in him is somewhat shaken.
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