Tuesday, August 30, 2016

Mr. Hallam

The death of Mr. Hallam suggests a short retrospect on his career. No man devoted his life to more severe or arduous studies. Hardly any one whose reputation was so high was less widely known to the world at large. Beyond his own family and his personal friends, he was, generally speaking, little more than a name. Indeed, there was not much in his career to attract that general public attention and interest which is one of the greatest calamities that can befal a man of letters. His father was Dean of Wells, and he was born in or about the year 1779. He was educated at Eton and Christchurch, and was called to the bar by the Inner Temple, of which society he was afterwards a bencher. He never obtained any eminence as a barrister, having exchanged that calling at an early age for the place of a Commissioner of Audit, which he held for many years, and which gave him the opportunity of establishing his great literary reputation. With one touching exception, his life was passed quietly and silently in the composition of his three great works— the Middle Ages, the Constitutional History of England, and the History of Literature. It is remarkable that the domestic calamities of one whose life was so retired, should have attracted so large a share of public sympathy. The death of two sons, at the time when their loss was on every account most painful, was certainly as grievous a trial as a man could be called upon to bear; but in Mr. Hallam's case attention was attracted to the loss, not only by the remarkable manner in which our only living poet testified his affection for the elder son, but by the extraordinary promise which each of them had just time to display before his death. Those who are interested by the spectacle of that uncontrollable progress which makes an indelible though indefinable distinction between different generations, can seldom have met with a better instance of it than was afforded by the difference between Mr. Hallam and the sons whom he loved so dearly, and who so cordially returned his affection. The fragments of Arthur Hallam's composition which still remain present the same sort of contrast to his father's style of thought as Mr. Tennyson's poems do to Pope's, or Mr. Kingsley's sermons to Paley's. It is pleasant to know that such differences left untouched the mutual affection and admiration which existed between the father and the sons.

Singular as are the circumstances which have associated Mr. Hallam's name in many minds with such recollections as these, their connexion with his memory will, no doubt, be transient. His historical reputation will, in all probability, last as long as the Constitution of which his works explain the origin and record the growth. The position which they occupy in English literature is well worthy of consideration; and it may be interesting to attempt to explain the relation in which they stand to some of the other works which have been written upon the same subject. Though Mr. Hallam never practised law as a profession, his habits of mind were deeply influenced by his legal studies. In almost every part of his works, the lawyer's temper and the lawyer's canons of criticism may be traced. Indeed, it may almost be said that the predominant object of his books was to cast the history of England in a legal mould. The possibility that a man of Mr. Hallam's ability should undertake such a task, is in itself characteristic. It could have occurred in no other country. To review with an all but passionless calmness all the cardinal points of English History, and to pass judgment upon them in the spirit of Westminster Hall, is a view of political life both characteristic of, but welcome to, the English mind. Let any one try to imagine the history of France written in such a spirit—let him conceive the difficulty, or rather the absurdity, of attempting to solve the problem of the legality of the quarrels between the Burgundians and Armagnacs, the Wars of the League, the policy of Louis XIV. and Louis XV. towards the parliaments —and, above all, the series of revolutions which have distracted the country since the year 1789. Justice has been administered in France between man and man, and between the State and private criminals intelligibly enough, but the notion of a law which can control the Government is still exclusively English. It is this that gives unity and interest to Mr. Hallam's books—an interest which maintains itself in the face of a style too compact and severe to have attractions for any but serious readers.

Mr. Hallam, as his readers aro aware, dates the English Constitution from the reign of Edward I., and every one who has made a serious study of the early part of our history must have been struck with the judgment which he displayed in doing so. Though such writers as Mr. Allen have succeeded in tracing the rudiments of a parliamentary system back even to the time of William the Conqueror, many years passed before the law was otherwise than a partial and arbitrary system. It is well known that no act of the Conqueror's excited greater indignation and terror than his execution of Waltheof for treason, the gravamen of which lay rather in the rank than in the innocence of the sufferer. In the early part of the twelfth century, perpetual imprisonment was the severest punishment which Henry I. could venture to inflict on a great lord (John de Belesme) who was convicted of no less than forty-two outrageous acts of rebellion and murder: and even this was not brought about without overcoming considerable resistance on the part of the rest of the nobility. The same state of things may be traced to a certain extent through the reigns of Henry II., Richard I., and John; but Magna Charta (which has been ignorantly and absurdly described as a mere result of aristocratic violence) introduced a change which no one can appreciate who has not followed Mr. Hallam's advice by comparing Matthew Paris with Ordericus, Malmesbury, and Newbury. To use his own striking language—

"From this era a new soul was infused into the "people of England. Her liberties, at the best long "in abeyance, became a tangible possession, and "indefinite aspirations for the laws of Edward the "Confessor were changed into a steady regard for "the Great Charter. Pass but from the history of "Roger de Hoveden to that of Matthew Paris— "from the second Henry to the third—and judge "whether the victorious struggle had not excited an "energy of public spirit to which the nation was "before a stranger. The strong man, in the sublime "language of Milton, was aroused from sleep, and "shook his invincible locks. Tyranny, indeed, and "injustice, will, by all historians not absolutely servile, be noted with moral reprobation, but never "shall we find in the English writers of the twelfth "century that assertion of positive and national rights "which distinguishes those of the next age, and particularly the monk of St. Albans."

After the confusion of Henry III.'s reign, we find in the Parliament Rolls of Edward I. conclusive evidence of the full practical establishment and vigorous operation of that great principle which to this hour is the exclusive possession of our country —that no man or body of men, whatever may be their position or authority, and whether they are or are not acting officially, or even by the express command of the king himself, are superior to the law. Edward II. was infinitely more distressed and injured by the illegality and informality of his execution of the Earl of Lancaster, in 1317, than Louis Napoleon was in 1858, when he transported hundreds of men to Lambessa without any pretence of legality; or than the Vigilance Committee of San Francisco, when, a year or two ago, they hung men (most of whom well deserved hanging) with no approach to any other warrant than that supplied by their own views of expediency. The establishment of this principle and its gradual development form the subject-matter of constitutional history. Constitutional history itself is a narrower subject, for it is composed of the writings of a class of authors neither numerous, nor (with a few exceptions) well known. The following observations throw some light on the place which Mr. Hallam occupies in this class.

Our principal writers on Constitutional History may be divided into three classes—the lawyers, the controversialists, and the modern school, of which Mr. Hallam and Sir F. Palgrave are the principal members. The lawyers, for the most part, handled the subject exclusively from a professional point of view. Fortescue, the author of the book De Laudibus Legum Anglus, is the earliest, and by no means the least valuable of them. Indeed, he writes with a liberality of thought and a freedom from technicalities which perhaps entitle his book to take rank rather amongst political treatises than amongst mere law-books, and which certainly make it far more agreeable to read than the more copious and detailed treatise of Lord Coke, who may stand next on the list. His Institutes contain a vast quantity of legal and constitutional history; but the unhistorical temper of the times in which he wrote shows itself constantly in the confusion and bewilderment of his books. The Institutes were published in the early part of the seventeenth century; but the law which they contain is of all ages, from the time of Edward I. downwards; and it never seems to occur to the writer that it makes the least difference whether an act was passed in the thirteenth or in the sixteenth century. The whole of the real property law, for example, which forms the first Institute (better known by the familiar title of Coke upon Lyttleton) is based all but exclusively upon the feudal system, and therefore upon a state of society which, in Coke's time, had entirely passed away. But this never appears to cross his mind. It never seems to strike him that the constitution of society changed, and that the character of landed property would naturally change with it. His whole view of history seems to be that some cases were before, and some after, the statutes De Donis and Quia Emptores. The very quaintness of his style shows the undiscriminating temper of his mind in the strangest manner. He maintains, for example, that corruption of blood is warranted by Scripture, because it is said in the 109th Psalm that the children of the wicked are to beg their bread in desolate places. Few things can set the historical and the pre-historical temper in clearer contrast than a comparison between Coke's Second Institute and Barrington's Observations on the Statutes. The subject of the two books is identical, the difference in temper most curious. Lord Hale's History of the Common Law is little more than ^a fragment, being only an introduction to a larger work, which was sketched out but never completed. It is written in a far more modern spirit than Coke's books, but it turns almost exclusively upon questions of purely technical law, and has very little to do with the great questions of the Royal prerogative and the powers of Parliament. The same observation applies in part to his History of the Pleas of the Crown, which, however, displays extraordinary learning and great capacity. The last of the purely legal writers on this subject to be noticed is Blackstone. His mode of treating the subject of Constitutional Law may be considered to form the complement of the views advocated by Mr. Hallam. He cannot fairly be charged with a want either of learning or of accomplishments; but he was involved in that necessity which so many persons appear to have felt in the last century, of weaving all his statements into a system, which if it could not be deduced from the widest a priori grounds, could at least be defended on them. He never appears to see the distinction between the reason why an institution was founded, and the reasons which, after it has been founded, may be alleged in support of it. Why, for example, is the King of England one of the three branches of the Legislature? "Because," says Blackstone, "it is highly necessary for preserving the balance of the Constitution." An excellent reason, no doubt, for maintaining the established state of things, but one which had absolutely nothing whatever to do with its original production. This narrowness, which values a fact only as proof of some preconceived proposition, is the characteristic of all writers who take an exclusively legal view of the national institutions. Blackstone's famous argument upon the Revolution of 1688 is an excellent example of this temper of mind. He views the whole transaction as a precedent, and deduces from it at last the proposition of law, that if the throne is vacant, the Lords and Commons together may fill it.

Such were the peculiarities (more or less distinctly marked) of those who treated our Constitution merely as matter of strict technical law. It is, However, to be observed that the subject was deeply studied throughout the eighteenth century by another set of writers for a very different purpose. These were the controversial partisans who took one or the other side in the great debate between the House of Hanover and the House of Stuart. Several most learned though one-sided books are the monuments of this discussion. They have, as might have been expected, both the merits and the defects of controversial writing. They contain an immense quantity of useful materials, and of untrustworthy conclusions. The histories of Rapin on the one side, and those of Carte and Brady on the other, are the most important of these works. Carte in particular deserves notice, as he was the first person who studied, with a view to historical composition, the original records which contain not only the law reports, but the State papers of early times. Mr. Hallam's works abound with references to his book, and with expressions of admiration for his extraordinary industry and great ability. Barrington's Observations on the Statutes and Reeves' History of English Law occupy a middle position between the technical lawyers and the controversialists. They are written much in the spirit of Mr. Hallam's works, though Reeves was the highest of high Tories, and, curiously enough, was on that score the subject of the most absurd of all the absurd prosecutions for libel which disgraced the close of the last century. His book is admirably clear and learned.

Such were some of the principal predecessors of Mr. Hallam in the great task upon which he laboured so long and so successfully. In addition to their works, he had the advantage of the labours of several antiquarians who had brought together a great mass of historical documents—particularly Rymer, whose immense collection is to this day one of the most valuable of historical authorities, and Madox, who passed a great part of his life in the strange occupation of forming a digest of the Exchequer records from John to Edward II. Mr. Hallam's great superiority over all his predecessors was due, not so much to his intellectual vigour, or even to the impartiality for which he has been so justly praised, as to the fact that the point of view from which he regarded the whole subject of constitutional law was a higher and more reasonable one than they had been able to seize. When he began to write, Bentham had broken up much of that blind reverence with which English lawyers were formerly in the habit of regarding English law; and the French Revolution had effectually answered the double purpose of putting the Stuart controversy and all that belonged to it at an immeasurable distance from all living interest, and of discrediting a priori speculations about the nature of governments de jure, as compared with their development de facto. The interest in history revived at the same time on both sides of the Channel, by a parallel movement, under the influence of precisely similar causes. Mr. Hallam and M. Guizot were each brought to study the history of their respective countries, by the striking illustration which both had witnessed of the impossibility of constructing a government for a country without reference to its history. The great peculiarity of Mr. Hallam's works is that he realized more completely than any writer who had pone before him, the fact that, in respect to England, history is the substantive, and law, in whatever form—whether as it is embodied in institutions, or as it exists in mere ordinances—is the adjective, and that without a deep acquaintance with both it is impossible to arrive at satisfactory conclusions about either. No one has brought out with such a variety and aptness of illustration the great truth that all institutions are in their essence relative—that they can be estimated and understood only by one who has acquainted himself with the social state of the people amongst whom they exist. Nor has any one more clearly established the correlative truth (a truth more frequently neglected, at present, than the other), that there is no more powerful agent in determining the moral and social condition of a nation than the institutions which are thus to be studied. The importance of historical inquiry in politics and law is now so popular and so well established, that we are apt to forget that its adoption is both a recent and a remarkable event. That it is so, in fact, any one may satisfy himself by looking into any of the systematic political treatises which were so much in fashion in the last century. No one in the present day would venture upon the statement which met with so much applause when put forward by Montesquieu, that the fundamental principle of a monarchy was honour; and that of a republic, virtue. No one now, except a few uneducated sophists, thinks of talking, at least in this country, about the inalienable rights of man, and the civil contract which is the basis of society. Nor would any one now talk such nonsense as Lord Camden in the last century, when he rebuked the miserable antiquarians who dared to inquire into the origin of the Constitution, instead of falling down to worship it. Mr. Hallam was amongst the first, and certainly was one of the most effective, adversaries of these and similar errors. Jeremy Bentham, indeed, attacked the consequences which flowed from them with a degree of acuteness almost unexampled, and with a force which frequently degenerated into brutality; but Bentham was not only unjust to his antagonists in refusing them credit to which they were justly entitled, but was himself a dogmatist of the most unsatisfying kind. He triumphantly overthrew Blackstone, and vexed the souls of Lord Eldon and other orthodox lawyers; but his theory of the constitution, and by consequence of the history of England, is not only false, but has simply no relation to fact whatever. He maintained that the English constitution was a nonentity, because it was not to be found in any precise, definite written shape, and that, as a fact, our government was a modified despotism, of which the king was the senior, and the other branches the junior partners, entirely dependent on him for whatever trifling share of power or influence he might be pleased to allow them. Such a theory is no more than a dyspeptic dream, to which a violent person chose to attach a degree of importance to which it was not entitled.

Mr. Hallam's books supply the positive side which was weak in Bentham's political theories. In fixing the history of the constitution, he gave the true measure both of its excellences and of its defects; which he disentangled from a vast and apparently incongruous heap of materials. Accounts of the general state of society in the middle ages—of the common features of the constitutions which grew up with different results in England, France, Spain, and other countries—of the state of arts and sciences, the growth of towns, and the distribution of the different ranks of society—were all united to form the starting point from which a clear and fair comparative view might be taken of the political condition of England. From this starting point he deduced the history of the gradual development and legal recognition of that set of principles which, taken together, make up the English constitution; and it is impossible to give too much praise to the skill with which the double character of the various events related is kept in view. Mr. Hallam never forgets either that he is relating historical events the character of which depended upon the state of public feeling at the time of their occurrence, or that he is recording legal precedents the importance of which as precedents is even yet by no means extinct. This double aspect invests his books with peculiar importance; their historical character saves them from the technicality of mere law books, and their legal character connects them with practical life, and delivers them from that strange air of fatalism which gives an unwholesome tinge to many modern histories of great celebrity.

It is of course easy to find fault with a great writer, and no doubt there are some real defects in Mr. Hallam's works, and some apparent ones, which diminish their credit with the present generation. Judges entitled to speak on such a subject say that Mr. Hallam was not so well acquainted with the Canon Law as might have been desirable, and that this prevented him from fully appreciating some of the most powerful of the influences which produced a sort of unity amongst the nations of Europe in the middle ages. It is also difficult to avoid the conclusion that he had less sympathy than an historian ought to have for passion in general, and especially for the religious passions. Thus, in his dissertations on the Civil Wars, he did not adequately distinguish between the principles and the pretexts of the two great parties which divided the nation. He steers a very impartial course between the Roundhead and the Cavalier, but if Cromwell or Charles could read his book, each would probably feel that the strongest part of his case was left untouched, however fairly that which was touched might be dealt with. It may also be objected to Mr. Hallam's whole theory of history, that it proceeded to some extent upon an anachronism—that he antedated the constitution, and ascribed a sympathy for and an appreciation of constitutional arguments to men to whom the whole theory was foreign.

Whatever may be the value of these criticisms, the other side of the question is far the most important. There never was a time when Mr. Hallam's books were more likely to exercise a healthy influence than at present, for there never was a time in which it was more necessary to assert in the strongest way the importance of acts as opposed to feelings and dispositions, of positive law and definite institutions as opposed to tendencies and formulas which are foolishly described as laws. Whatever Mr. Hallam's defects may have been, he always gives his readers something real, tangible, and solid. He proceeds by fixed rules and principles, and does not call perjury and murder by new names merely because the general character of an historical personage suits the new names better than the old ones. He has a belief in facts, in broad results, in well tried principles; and in these, as in most other respects, his books are an example eminently worthy of study and imitation by the whole school of romantic and pictorial historians.

Saturday Review, January 29, 1859.

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