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result from the operation of such a principle as this when judiciously applied. It relieves an innocent man from a weight of costs under which he might sink, and it enures to the benefit of society, by encouraging an inquiry into all cases that require it. lVe have thus seen the principle of the Prerogative Court, both in the abstract and in the concrete; both in the formula and in its application. It appears to us to be a principle worthy of conservation, and the legislature has been of the same opinion, by enacting its preservation-——leaving, of course, its application to the judge. It undoubtedly kept the old court on its legs, in spite of a lame and vicious procedure, by securing to it the public respect.
A year has passed since Sir O. Cresswell undertook the most arduous task that can fall to the lot of man--the formation of a new court ; and the legal world knows how well he has acquitted himself of that labour. Crevit enim cum amplitudine rerum vis ingenii.
The judge of the Probate Court, however, has set his face sternly against the equitable principles of costs now under discussion. It is tahooed in his court ; and this valuable inheritance, transmitted to that court for the use of the public, may possibly be lost from disuse. We regret that the learned judge has exiled equity from a court which the legislature intended should have it. On this point he has thrown back the tide of equity, and left his court in all the dryness of common law. Hence we have a purely common law court, when the legislature contemplated a mixed one. This is retrogression. Judicial inquiry into will cases should be encouraged, for there is no class of - cases where villany is more rife; and there is no kind of villany which can less stand the brunt of an inquiry, for the simple reason that to support a. bad will many bad men must combine.
Again, an inquiry of this kind is most needed by those who are least able to pay its costs—-namely, the poor and disinherited. To tax these persons with costs, in all cases where they fail of success, without regard to the nature and degree of their opposition, is not to discourage, but to annihilate inquiry, and to encourage for succeeding generations the pefPe1'-1‘fl@i0!1 °f fraud,
by making will cases a good preserve and a. sure find for malversation. _
This is not merely the question of the attorney getting his livelihood. It is a question whether a compatriot, having a grievance against a dead man, shall be mulcted in a penalty to a living man, because he has demanded and obtained an inquiry into the grounds and circumstances under which that loss has occurred. The question, Who shall pay the costs? is not merely a question, Who shall pay the attomey?
But a graver sub-question is involved in it. We will even say, according to precedent, that no sympathy is required for the attorney. We will laugh at him, with the mock sympathy of the poet, who says or sings—
“Miser homo est qui sibi quod edat quaerit et aegre invenit,
Moreover, the injustice is obvious of withholding a benefit from the world because some few do not deserve it ; and such a negation is palpably unnecessary, when it is considered that the arm of the law is always strong to reach the really peccant individual. It is like physicking a crowd for the distemper of one man. To repeal a use because of a possible abuse, should be as indefensible in law as it is inconsistent with sound ethics. It may be said
_ that this is done to discourage litigation; but here we have a
clear fallacy. It is no province of the law to discourage litigation purely and simply. It is the duty of the courts to discourage unjust and vexatious litigation only. If all just and unjust litigation be punished alike, society is punished in the persons of the innocent for the fault of a few individuals. Under the influence of such a practice, Wood of Gloucester’s case would never have received its great and world-wide adjudication, or any adjudication at all; and it must never be forgotten that that adjudication transferred immense property to miserabiles pers0mz—persons without funds to go to war with on their own charges. The refusal to allow costs will kill inquiry in the bud; it will engender morbid dissatisfaction in families, which an inquiry would have
removed or alleviated ; and it will restrain within the narrowest compass the operation of the act of parliament.
We regret that so distinguished a judge, and so able a reasoner, should have taken a. course so counter to the practice of Dr. Lushington and Sir Herbert Jenner Fust; and we think that the
learned judge cannot have approfondi the full logical consequences of his exceptional practice.
ABT. IV.—Shakespeare’s Legal Acquirements Considered. By J oar: Loan CAMPBELL, LL.D., &c., in a Letter to T. PAYNE COLLIER, Esq. London: John Murray, 1859.
ARLY one winter's morning this year, there was great consternation perceived among those grave and thoughtful
men who obey daily their sad destiny, which condemns them to pass and repass for an allotted period the south gateway of Linco1n’s Inn—-that gateway we mean which the frugal Benchers new piece off, and let out to a bookseller. The cause of this emotion was obvious. Large placards, in blood-red letters, were adhering to this bookseller’s window, with this query printed in the boldest and most unabashed type, “Was Shakespeare an Attorney’s Clerk? By John Lord Campbell.” Hardly any query could have seemed to the sage pedestrians at first sight so pointless and wild as this. Many had for years been familiar with modest advertisements wafered on these windows, to the effect that various masters wanted clerks, “respectable, sober, clever,” &c. &c., and that clerks with irreproachable hands (so far as writing at least extended) would accept of masters on easy terms. Hurried memoranda, also, might continually be seen stuck up as to bunches of keys lost late the previous evening under circumstances not mentioned, or occasionally as to a bank-note, of no use except to the owner, because the number was known, and the registered title thereto vitiated by an ofiicial caveat. It was of every day's experience that the loss of deeds, wills, and docu
ments, supposed to have been either left by a country attorney in a cab, or dropped in a square (but eventually discovered in a tavern in Fleet-street, or safe at the ofiice at home), were advertised in this quarter. But that an unexpected question, combining the ideas of Shakespeare, Lord Campbell, and Attorneys’ clerks, should here be put forth and in this startling fashion, seemed like a. practical joke.
Was Lord Campbell to be literally supposed t-o have asked or answered the interrogatory here printed in the blood-stained type? Had the passers-by seen propounded in like words and figures, such a question as-—“ Is TITMOUSE TO BE THE NEXT Mssrsn IN LUNACY ?” or, “SHOULD A NEW STATUTE COMMISSION (AS EFFIcrsnr AS THE LAST ous) BE AT ones APPOINTED?” we believe that less astonishment would have been felt.
The next step after astonishment is, to the candid mind, naturally investigation. In this instance the latter process has led us to the result, that a. little book, and we may say a little amusing book, has certainly been made and published by Lord Campbell. It would appear that Lord Campbell had “a. little leisure during the long vacation ” of 1858, and, in obedience to a “ peremptory” request of Mr. Payne Collier, his lordship undertook the duty of throwing out a few hints on the subject referred to in the placard, for the especial use of the well-known editor of our great dramatist’s works; the writer having however, besides, another very natural, not to say national, motive for the labour ; for, says the noble and learned author, “I myself must derive some benefit from the task.” He believed, in fact, that the mental eflbrt of reading the plays (or studying Mrs. C. Clarke’s concordance) would, for a while, draw from his “mind the recollection of the wranglings of Westminster Hall.” “In literary pursuits,” confesses the candid and enthusiastic judge, “should I have wished ever to be engaged ;” which assertion, being made in English, he quite unnecessarily proves after the orthodox fashion of ancient legal commentators, by a quotation in Latin :—
“Me sifata meis paterentur elucere vitam
In passing, we may remark upon this confession of Lord Campbell, so flattering to literature, that it is a matter of deep sympathy that he felt himself forced to enter upon, and now feels himself bound to continue, the task which (for the first time)
we here learn is uncongenial to him. For half a century he has been self-condemned to take a part in the litigation or
“wrangling” of Westminster Hall ; and, when he had the oppor
tunity of being finally released therefrom, he resumed his bonds
on the bench when Lord Denman retired. He feels now, we learn, how much happier, more useful, not to say more remunerative, would have been his lot, if he had dedicated himself to literature. His proper calling was to woo the muses; to have inscribed immortal pages, rather than frame ephemeral pleas ; to have composed rather than pass sentences. He believes, now that he is Chief-Justice of England, that he has mistaken his profession.
This reflection must indeed, we fear, embitter his existence.
Henceforth, whenever we see him on the bench, we shall be haunt
ed with the fancy that his aching heart tells him hourly he has
blighted his prospects by the great error he committed in early life, in having chosen to practise at the bar; we shall feel that he is in secret longing even now to be once again free, and able to add to the permanent and immortal literature of his country. What pangs for an aspiring soul to endure in reflecting, that whilst Shakespeare emancipated himself from the fetters of the law, and became one of the great poets of the world, Lord Campbell hesitated, and was 1ost—remained at the bar, and has been degraded to the Chief J usticeship of England l What has not Lord Campbell—nay, the world—thus lost? There has occurred to him, however, the rare chance of being both a literary man and a chief justice. To effect this combination successfully was no easy matter. The ambition of being “ a wit among lords, and a lord among wits,” is always accompanied with danger to reputation. Nevertheless, the learned author of this magnun opus on Shakespeare, ventured boldly, and became a biographer among the lawyers, and a lawyer among biographers. The latter capacity, at least, has been remarked by some who, hav