tlemen, for the assistance which many of you have often afforded me in the discharge of duties, which are necessary, indeed, and sacred; but which, to a single judge, in a recent court, and small society, are peculiarly arduous, invidious and painful.'

One of Sir James' decisions in the Vice-Admiralty Court in which he presided, while in India, is worthy of perpetual remembrance, from the firmness-the eminent display of the justum et tenarem propositi virum-with which be upheld the Law of Nations, against the British Orders in Council. A vessel had been captured for an alleged violation of the letter and spirit of his Majesty's instructions of June 1803, in trading between enemies' colonies. Upon a hearing before Sir James Mackintosh, he pronounced judgment of restitution. The language he used on this occasion is as memorable as any ever uttered on the bench.

'The captors,' he said, 'were fully justified in detaining this vessel, because in so doing they were acting in obedience to the letter of the instructions of June, 1803. Batavia and Manilla were certainly colonies of the enemy, and this vessel was certainly not trading directly between America and such colonies. But though the officers in his Majesty's service were bound to obey these instructions, he did not conceive himself, sitting as a judge of prize in a court whose decisions were to be regulated by the law of nations, as bound and concluded by them. He believed, indeed, that he was the first and only judge who had ventured to pronounce such a doctrine. every prize court, in every country, by all writers on the subject, and all administrators of the law, the instructions of the sovereign were regarded as a law to the judge. But he considered the law of nations as paramount to such instructions; and the King as having indeed a right to dispense with such law, but not a right to extend it. As far, therefore, as any of his Majesty's instructions were a relaxation of the law of nations in favor of neutrals, he should consider himself bound by them; but if he saw in such instructions any attempt to ex

In

tend the law to the prejudice of neutrals, he should not obey them, but regulate his decision according to the known and recognized law of nations.'

The conduct of Sir James in restoring this vessel, which belonged to the United States, was received with the warmest admiration by our citizens, who at that time were smarting under the British Orders in Council, and their severe enforcement in the English High Court of Admiralty, by the great master of international law, Sir William Scott.

On Sir James' return from India, in 1812,-besides receiving from the Company a pension of £1200 a year, he was appointed Professor of Law and General Polity in the East India College. We are entirely ignorant of his labors in this post. We are not aware that any account of them has ever appeared in print. It has been supposed that the subjects of his Lectures must have been, to a considerable extent, identical with those of his Lectures on the Laws of Nations, in the Hall of Lincoln's Inn.

The charge of the reform of the criminal code, which had been advanced in the House of Commons, with such ability and singleness of philanthropy, by Sir Samuel Romilly, upon the melancholy death of that distinguished man, was cast upon Sir James Mackintosh. The exertions which he made, by his motions and speeches for the amelioration of the criminal code, give him an eminent place in the roll of law reformers. His speeches in this behalf, bear the impress of a powerful, liberal and humane mind,-raised far above the narrow views and petty reasoning which too often mark the efforts of the mere lawyer. Sir James brought to the subject all the learning of the books, and the speculation of the closet, shaped and invigorated by the sound and practical character of the statesman. Of the panegyrics which lawyers by profession were eternally pronouncing upon the laws of the country, he spoke, on one occasion, in terms of great disregard. Mr. Sergeant Hawkins has said, in his Pleas of the Crown, that those only who have taken a superficial view of the

Crown Law, charge it with rigor.' 'Would the House believe,' asked Sir James Mackintosh, that those words were written while the statutes against witchcraft were still in force, while witches were burned as regularly as felons were hanged at every assize? But to come farther down-What was the state of the law, even within the last thirty or forty years? Had not women been burned alive for petty treason within that time, and prisoners put to the torture for refusing to plead? And yet all this while, lawyers had not been less loud in their praise of law, courtly writers less warm in its commendations, or enemies to innovation less numerous and determined.'

The latter part of the life of Sir James was chiefly employed upon the composition of his History of England, which was broken off at his death, at the sixteenth year of the reign of Queen Elizabeth. The advertisements of booksellers, the generous expectations of the public, and the anxious desires of his friends, that he should produce a work, worthy of himself and of his distinguished subject, that should vindicate a place for him in that lofty circle, occupied by the three great British historians, have all been disappointed. Instead of a complete work which should sum up the whole history of England, with the calm sagacity and learning, and philosophical mind of a Judge, we find but little more than two moderate sized volumes, written indeed with vigor, distinguished by a remarkable discrimination of individual and national characters, by impressive reflections, both moral and political, upon the events related, and, above all, by a pure and elevated regard for truth, for humanity and the rights of man, yet written in a style, not simply harsh, involved and crabbed, but often ungrammatical, and bearing on every page indubitable marks of haste.

The notices and occasional discussions of legal topics to be found in this work, either such as refer to the constitution of the country, or international relations, or the history of English jurisprudence,-are highly interesting. It was for the

sake of introducing these to the reader, by means of copious extracts, that we have prepared the present sketch of Sir James Mackintosh's labors in the law. The extracts which we shall make will furnish a correct idea of his manner of discussion, and cannot fail in being instructive, from the blended learning and reflection which they display.

The following introduction to his sketch of the institutions of the Anglo-Saxons contains some most discriminating remarks on the distinction between Whig and Tory, with some striking views on the origin of government. It is written in the spirit of the deepest philosophy.

"The antiquarians of the seventeenth century investigated the state of our ancient constitution industriously, and often learnedly, but aided by little critical estimate of authorities, and guided by no philosophical spirit. The greater number of these praiseworthy collectors, who began their labors at the period of the contest carried on in that century between the house of Stuart and the people of England, adapted their representation of our ancient laws to the part which they took in the momentous controversy of their own age. The contest was decided by the Revolution of 1688, but the mistaken opinions of the contending parties survived the determination. In two fundamental errors cnly, did the Whig and the Tory antiquaries concur. They both held that the Saxon government was a well-ordered system, and that the right of the people to liberty depended on the enjoyment of it by their forefathers. Both treated the terms which denote political and legal institutions as retaining an unalterable signification through all the changes of six hundred years; and hence both were led to believe that the same laws and government which they saw around them during the period of their controversy, from the birth of Bacon to the death of Newton, could have existed in the time of the first Saxon freebooters. The Tories represented the Saxon kings not the less as absolute monarchs, because they acted by the advice of men of sense and weight chosen by themselves; and these writers

treated all the privileges of the people as either usurpations or concessions, chiefly obtained from weak princes. The Whigs, with no less deviation from truth, endeavored to prove that the modern constitution of king, lords, and commons, subsisted in the earliest times, and was then more pure and flourishing than in any succeeding age. No one at that time was taught, by a wide survey of society, that governments are not framed after a model, but that all their parts and powers grow out of occasional acts, prompted by some urgent expediency, or some private interest, which in the course of time coalesce and harden into usage; and that this bundle of usages is the object of respect and the guide of conduct, long before it is embodied, defined and enforced in written laws. Government may be, in some degree, reduced to system, but it cannot flow from it. It is not like a machine, or a building, which may be constructed entirely, and according to a previous plan, by the art and labor of man. It is better illustrated by comparison with vegetables, or even animals, which may be, in a very high degree, improved by skill and care, which may be grievously injured by neglect, or destroyed by violence, but which cannot be produced by human contrivance. A government can, indeed, be no more than a mere draught or scheme of rule, when it is not composed of habits of obedience on the part of the people, and of an habitual exercise of certain portions of authority by the individuals or bodies who constitute the sovereign power. These habits, like all others, can only be formed by repeated acts; they cannot be suddenly infused by the lawgiver, nor can they immediately follow the most perfect conviction of their propriety. Many causes having more power over the human mind than written law, it is extremely difficult, from the mere perusal of a written scheme of government, to foretell what it will prove in action. There may be governments so bad that it is justifiable to destroy them, and to trust to the probability that a better government will grow in their stead. But as the rise of a worse is also possible, so terrible a peril is