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matter of theoretical justice, to know whether all the somewhat remarkable provisions of Book XIV., of the Ottoman Civil Code were duly carried out. By Art. 1619, it is laid down that the subject of litigation must be determinate, or the action is null and void. By Art. 1620, it is laid down that when the subject is a moveable and determinate, it shall suffice, if it be before the Judge, to show it to him, and if it be not before him to draw up its description and declare its value. If it be an immoveable, it is necessary that its limits should be stated. This requirement is greatly improved upon in Art. 1623, which enacts that when the subject of litigation is an immoveable, the plaintiff and his witnesses must describe the town or village, the district and street in which it is situated, the property contiguous to it on three or four sides, the names of the owners of such property, and of their fathers and grandfathers.
It will thus be seen that it might prove to be a very serious matter if the British assessor in the Court which condemned Mr. di Cesnola did not see that the presiding Judge, the District Cadi, took care to have put in before him a statement of the value of the soil in which the antiquities claimed by the Ottoman Porte were found, the value of the antiquities themselves, and the names of the fathers and grandfathers of the adjacent proprietors of land on three or four sides of the soil which Mr. di Cesnola had broken up. And if any coins were among his discoveries, it would not be sufficient for the State simply to claim them under the generic designation of money, for by Art. 1626, when money is claimed it is necessary to specify the number of pieces, and the mintage, whether Ottoman, English, &c., and whether the coins be of gold, silver, or copper. There is yet another point worthy of remark: By Article 18 of the Imperial Ottoman Constitution of 7 Zilhidjé, 1293 (23rd December, 1876), it is enacted that,
a knowledge of the Turkish language, which is the official language of the State, is necessary for admission to public
functions.” It would be interesting to learn whether the British Assessor in the Cypriot District Court which condemned Mr. di Cesnola, had this necessary knowledge, as if not, he was clearly not a public functionary in the eyes of Ottoman Law, and his presence, or the presence of any such nominal Assessor in any Cypriot Court, must have been, and must continue to be, a work of supererogation, and such works, we know on good authority, cannot be taught without arrogancy and impiety. We should be sorry to think so ill of the British Administration in Cyprus.
II.-ON EVIDENCE AS APPLIED TO HISTORY.
PROPOSE to take, in illustration of my subject, the
character of the Duke of Marlborough as drawn by Lord Macaulay.
All technical rules as to the admission or rejection of evidence in any system or systems of Law, are to be disregarded by the writer or student of history. Admitting everything from which any rational inference can be drawn, still he who has to judge of fact, including character and motive, and in consequence to infer the unknown from the known, must proceed upon sound principles of induction. Whether his inquiry be judicial, scientific, or historical, an investigator is subject to the equal rule of reason.
If the imaginative faculty had been wanting in our most attractive writer of English history, Lord Macaulay, his work would never have become a household book, ministering alike to the amusement and instruction of millions. The critical essayist on history writes to the few. In early youtlı, that history pleases the reader most which
is mixed with fable and is dramatic in effect. A story in the mouth of an illiterate repeater falls naturally into a dramatic shape. Exaggerations, not immoderate, please and attract. The orientalisms which pervade our Sacred Scriptures tend to make them popular reading. All sacred writings, with which I am acquainted, gratify this popular taste, which one, who writes for the million, almost unconsciously indulges.
Lord Macaulay's style abounds with metaphor. Metaphors are chartered libertines in language. Exaggerations come as naturally from the pen of such a writer as leaves follow the flow of the sap. I translate Lord Macaulay as I read, and when I read of Marlborough as a man of "a hundred villainies, having a seared conscience, and an incurable moral disease,” then, since the first is an exaggerated and the two following are metaphorical expressions, I read them, as I read orientalisms in Scripture, with the allowances and deductions which the sense requires.
A great writer, overflowing with knowledge, with an ardent enthusiasm for freedom, the growth of a vehement positive mind, a strong party-man, a suppressed poet endowed with a rich and fertile imagination, setting before himself a lasting work for millions and for all time, will necessarily display all the parts of his nature in his labour of love. His history reproduces himself. As I read it, I seem to hear him once more. Exactness of estimation I did not expect to find in his work, for the character of such painters is to dash off rather than touch and re-touch a likeness. The history, not faultless, is yet a noble work, a lasting rich possession for the lovers of liberty in its true sense, "for who loves that must first be wise and good.” We must follow the spirit, rather than the letter, of his history. Johnson ridicules, in Sir John Dalrymple, that style in history which Sir John was not equal to manage, in which secret actions and thoughts of some person are detailed by an author to his reader with the fulness and
accuracy of an eye-witness, or a hearer of thoughts embodied in words.* Yet what historian has not to some extent allowed himself this liberty of the imagination ? Bayle, in his article, Tacite, has thus condemned that habit in the Roman Historian, “Ce n'est pas qu'il n'y ait bien à reprendre dans l'affectation de son langage, et dans celle de rechercher les motifs secrets des actions."
Every historical hypothesis must rest on some basis of fact. One conjecture may be met by another. The saine feelings which influence our judgments of the living, should even more strictly guide us when we sit in judgment on the dead. After death, especially, men should not be subjected to unfriendly construction, since they cannot be heard in their own defence. When we sit in judgment on a dead man, we should be ready to suppose matter of excuse equally with matter of charge. A man should be judged by the moral standard of his own times. Lastly, a man's whole life should be taken as one whole, and changes for the better in his after life, should, primâ facie, be taken as proofs of amended morals.
Churchill was bred in a vile court, wherein was neither the practice of, nor belief in, chastity. His life from puberty to his marriage, at 28 years of age, was like that of his associates, licentious; but he was not grossly profligate. He was capable of entertaining a virtuous passion. He loved and was loved, he married her he loved who returned his love. She was poor and he was poor; he preferred her to an heiress whom he might have wedded, therefore avarice did not dominate him. The course of the passions ran pure throughout his married life of nearly half-a-century.
By one considering the character of Sarah, Duchess of Marlborough, without prejudice, a husband who could live with her forty-four years, in peace and love, a tender, patient, and forbearing lover, the calm, clear observer and
* See 1 Ed. Croker's Boswell. Index tit. Dalrymple.
reprover of her outbreaks of temper and inveterate hates, must be pronounced in that character a model to all husbands. He was besides an affectionate liberal father, an indulgent master, and though a reserved man, he had friends and was the object of friendship. The permanent stain on his private life is an occasional mean acquisition, and a general illiberal use of money. The evidence relating to that vice I shall examine in detail at a later stage of these remarks, whilst endeavouring to limit by the evidence censures exaggerating the fault.
On one reflection, viz., that Churchill made money when young by his person, and when older by his sword, I must observe that the latter part of this pointed sentence really conveys no charge, since Churchill did not hire out his sword, but merely took what it brought him. As well might it be said that a general enriched by prize-money made money by his sword. In an innocent sense the observation would be true. As to the first part of this charge, the evidence is that the Duchess of Cleveland gave him £5,000, which he prudently invested. Her character has fixed the worser stain on him. She was a relation of his mother. This gift does not prove that their intercourse was, on either side, mercenary. A wider conclusion has been drawn than the premises warrant. All that we are entitled to say of it is, that it was a mean, a dishonourable, acquisition. It proves no habit of the kind imputed to Marlborough.
Our kings seem, as to themselves, to have stretched their favourite dispensing power to a repeal of the seventh commandment. The moral sense was so faint in their subjects, or their power to express it so restrained, that they looked on whilst kings raised their mistresses even to the highest rank in the peerage, and endowed them with national wealth. Churchill then was not worse than the common run of men in that age, for not rejecting the patronage of one, his sister's keeper, whom modern brothers would shun. This