Blackwood's Edinburgh Magazine, No. CCCLXXVI. February, 1847. Vol. LXI.
Author: Various
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[10] "Law Magazine," N.S. Vol. lxx. p. 183.

"When Poins he spied, ho, ho! he cried, The caitiff hither bring! We'll have a quick deliverance, Betwixt him and the King:

And sooth he said, for justice sped In those days at a rate Which now 'twere vain to seek to gain, In matters small or great.

* * * *

For sundry wise precautions, The sages of the law Discreetly framed, whereby they aimed To keep the rogues in awe.

For lest some sturdy criminal False witnesses should bring— His witnesses were not allowed To swear to any thing.

And lest his oily advocate The court should overreach, His advocate was not allowed The privilege of speech.

Yet such was the humanity And wisdom of the law! That if in his indictment there Appeared to be a flaw—

The court assigned him counsellors, To argue on the doubt, Provided he himself had first Contrived to point it out.

Yet lest their mildness should perchance Be craftily abused, To show him the indictment they Most sturdily refused.

But still that he might understand The nature of the charge, The same was in the Latin tongue Read out to him at large.

'Twas thus the law kept rogues at awe, Gave honest men protection, And justly famed, by all was named, Of 'wisdom the perfection!'

But now the case is different, The rogues are getting bold— It was not so, some time ago, In those good days of old!"

It may be gathered from what has gone before, that Mr. Smith's mind was one of equal activity and strength. His physical energies might flag, but never those of his mind. He was always ready to pass from protracted and intense professional study and exertion, to other kinds of mental exercise—"from gay to grave, from lively to severe"—either reading general literature, or amusing himself with slight affairs such as the foregoing; or, as soon as a little leisure had recruited his spirits, entering with infinite zest into superior conversation on almost any topic that could be started. He was for a long time shy and distant to strangers; but was quite a different person at the tables, and in the company, of his old friends and companions. There certainly never sate at my table a man who, when in the humour, could supply for hours together such genuine fun and amusement as Mr. Smith. Our little children were always very glad to see him, for he was patient and gentle with them, and contrived really to entertain them. Towards ladies, his manner was always most fastidiously delicate and courteous. There was, if I may so speak, a smack of days gone by—a kind of antique and rather quaint gracefulness of demeanour and address, which I used frequently to contemplate with lively interest and curiosity. When he returned from dining out, to his chambers, he would light his candles, and, instead of going to bed, sit up till a very late hour; for not only had he much to get through, but was a bad sleeper. A few years before his death, he had become a member of the Garrick Club, which was ever after his favourite resort, and was also frequented by several other members of the bar. He was delighted to take a friend or two to dinner with him, and would entertain them most hospitably, and with increasing frequency, as his means became rapidly more ample. He was also fond of the theatres, taking special delight in comedies and farces, however broad, and even pantomimes. With what solemn drollery he would afterwards dwell on the feats of Clown and Pantaloon! I am here, however, speaking of several years ago; for latterly he said, "It was a very hard thing to find any thing to laugh at in a pantomime, however much one tried!"

During the years 1842, 1843, and 1844, his practice continued steadily increasing, and that, too, in the highest and most lucrative class of business—not only before special juries at Nisi Prius, and the Courts in Banc and in Error in the Exchequer Chamber, but in the Privy Council and the House of Lords. Before the last tribunal, in particular, he appeared as one of the counsel in the O'Connell case, on behalf of Mr. O'Connell and his companions. His time was now incessantly occupied, by day and night; his slight intervals of relaxation necessarily becoming fewer and fewer. His evenings, indeed, were almost always occupied with arbitrations, consultations, or preparing those pleadings and writing those opinions which his constant attendance in the Courts prevented his then disposing of. His friends saw with pain how grievously he was over-tasking his strength, and earnestly importuned him to give himself more intervals of relaxation—but in vain. For nearly two years before his death, his haggard countenance evidenced the direful havoc which he was making of a constitution never of the strongest. Sir William Follett and he were both sitting at the bar of the House of Lords, on one of the latest days of the hearing of Mr. O'Connell's case, each within a yard or two of me. Two death-doomed beings they looked, each, alas! having similarly provoked and accelerated his fate. On the same afternoon that Sir William Follett leaned heavily and feebly on a friend's arm as he with difficulty retired from the bar, I went home in a cab with Mr. Smith, who sate by me silent and exhausted, and coughing convulsively. I repeatedly conjured him to pause, and give his shattered health a chance of recovery, by retiring for a few months, or even for a year or two, from the excitement and wasting anxieties and exertions of business; but he never would listen to me, nor to any of his friends. "It is all very well," he said to me several times, "to talk of retiring for a while; but what is to become of one's business and connexion in the mean time? You know it will have melted away for ever." He had, however, been persuaded to consult a physician of experienced skill in cases of consumption; who, after having once or twice seen him, sent a private message to the friend who had prevailed on Mr. Smith to call upon him; and on that friend's attending the physician, he pronounced the case to be utterly hopeless; that it might be a matter of months, even; but he ought to be prepared for the worst, and apprised of his situation. His friend requested the physician to undertake that duty, assuring him of his patient's great strength of mind and character: but he declined. Mr. Smith spent the long vacation of 1844 with his brothers and sisters in Ireland. They were shocked at his appearance, and affectionately implored him not to return to England, or attempt to resume his professional duties; but in vain. While staying in Ireland, he regretted the fast flight of time, evidently clinging to the society of his brothers and sisters, to the latter of whom he was most devotedly attached; but bleak, bitter, blighting November saw him again established at the Temple, and fairly over head and ears in the business of the commencing term. He attended the courts as usual; went out in the evenings to arbitrations and consultations as of old; dined also at the Garrick as before, and sat up as late at nights as ever. We all sighed at this deplorable infatuation; but what could we do? He was a man of inflexible will, and a peculiar idiosyncracy. Remonstrance and entreaty, from the first useless, at length evidently became only irritating. Not a judge on the bench, nor a member of the bar, but regretted to see him persist in attending the courts; where he sat and stood, indeed, a piteous spectacle. He resolved on going the Spring Circuit in 1845, being retained in some of the heaviest cases tried there. Shortly before this, the friend already referred to resolved to perform the painful duty of telling him, that in his physician's opinion there was not a ray of hope for his recovery; a communication which he received with perfect calmness and fortitude. To his brother's entreaties, about the month of June, that he would either go abroad, accompanied by one of his brothers or sisters, or allow the latter to come and live with him, in a house a little removed from town, he steadily turned a deaf ear. He evidently knew that it was useless; and spoke of his desperate state as calmly as he would have done in referring to the case of a mere stranger. It is believed that his sole reason for refusing to permit his sister to come over, was his fond and tender regard for her—a reluctance to permit her to witness him waste away, injuring in vain her own health and spirits. About this time, he said to his brother very quietly, but sadly, that "he feared his sisters would soon have to bear a severe shock!" He sat in his chambers, which were within only a few yards' distance from the Temple Church, on the day of Sir William Follett's funeral. He heard the tolling of the bell, and from his window[11] he could have seen much of that solemn ceremonial. What must have been his feelings? This was on the 4th July; and five days afterwards, (viz. on the 9th,) poor Mr. Smith appeared, I believe for the last time in the Court of Exchequer, during the post-terminal sittings in Trinity vacation, to argue a demurrer! I was present during part of the time. What a dismal object he looked, while addressing the Court! I think we drove up to the Temple together. He had argued the case of Bradburne v. Botfield, (reported in 14 Meeson and Welsby, 558,) the last time, I believe, that his name appears in the Reports. It was a very nice question, as to whether certain covenants in a lease were joint or several: his argument was successful, and the Court gave judgment in his favour. The next day he said to me, speaking of this occasion, "The judges must have thought me talking great nonsense: I was so weak, that it was with very great difficulty I could keep from dropping down, for my legs trembled under me all the time violently, and now and then I seemed to lose sight of the judges." Yet his argument was distinguished by his usual accuracy, clearness, and force of reasoning. Nobody could prevail upon him to abstain from going the summer circuit. He went accordingly, and unless I am mistaken, held several heavy briefs. When the northern circuit had closed, I joined my family at Hastings; and found that poor Mr. Smith was staying alone at the Victoria Hotel, St. Leonards. I called upon him immediately after my arrival. His appearance was truly afflicting to behold. Consumption had fixed her talons still deeper in his vitals. He sat in an easy chair, from which he could not rise without great effort; and he expressed himself as delighted that I, and another of his oldest friends, happened to have established ourselves so near him. He was quite alone—no friend or relative with him; several briefs, &c. lay on his table, together with the most recent numbers of the Reports, several law-books, and works on general literature. A Bible also lay in the room, with several papers placed within the leaves. Nothing could exceed the attention paid him by the landlady and her daughter, and the servants; but he gave them very little trouble. His cough was much aggravated, as were the wasting night-sweats; and he could walk only a few steps without assistance. Soon after having got to Hastings, I was summoned away to attend a court-martial at Leeds, which kept me there for upwards of a fortnight. On my return, Mr. Smith expressed a lively anxiety to hear from me a detailed account of "how the military managed law." He seemed never tired of hearing of those "curious proceedings," as he styled them. I spent nearly two hours a day with him during the remainder of my stay, accompanying him in long drives whenever the weather permitted. Weak though his body was, his mind was as active and strong as ever. I saw several as heavy "sets" of papers, from time to time, forwarded by his clerk from London, according to Mr. Smith's orders, as I had ever seen even in his chambers. When I implored him to send them back, and take a real holiday, he answered simply, "No; they must be attended to,"—and he did so: though I saw him once unable from weakness to lift a brief from his knees to the table. I never beheld so calm and patient a sufferer. He never repined at the fate which had befallen him, nor uttered a word showing impatience or irritability. When we drove out together, he generally said little or nothing the whole time, lest his cough should be aggravated, but was very anxious to be talked to. Once he suddenly asked me, when we were driving out, "Whether I really ever intended to permit him to see the sketch of Follett, which I was preparing." I parried the question, by asking him, "Whether he thought Sir William Follett a great lawyer."—"Certainly," said he, "if there be such a character as a great lawyer. What thing of importance that only a great lawyer could do, did not Follett do? He necessarily knew an immensity of law; and his tact was a thing quite wonderful. I was a great admirer of Follett.... I once heard him say, by the way, that either he had applied for the place of a police magistrate, or would have accepted it, if it had been offered, soon after he had come to the bar; so that it is quite a mistake to suppose that he was all at once so successful.... And I can tell you another little fact about Follett: though perhaps no man took so few notes on his brief, during a cause: this was not always so; for, when he first came to the bar, he took most full and elaborate notes of every case, and prepared his arguments with extreme care. I have seen proofs of this." Shortly before his leaving town, he purchased a copy of Thirlwall's (the Bishop of St. David's) History of Greece, in eight volumes, "to read over at the sea-side;" and he did so: telling me that "he liked it much,—that it had told him many things which he had not known before." This copy his brother presented to me after Mr. Smith's death, and I value it greatly. One morning I found him much exhausted; but soon after I had taken my seat, he said, "You can oblige me by something, if you will do it for me. I recollect that there is generally lying on your table, at chambers, 'Bell's Principles of the Law of Scotland.' Now I am very anxious to read the book, as I expect to be in one, if not two, Scotch appeal cases, in the House of Lords, next session!—Will you do me this favour?" Of course I immediately procured the book to be forwarded to him, and it afforded him uncommon pleasure for many days. He read it entirely through with deep attention, as his numerous pencil marks on the margin attest, as well as several notes on the fly-leaf, of leading points of difference between our law and that of Scotland. At page 35, Sec.76, the text runs thus:—"Tacit acceptance may be inferred from silence, when the refusal is so put as to require rejection, if the party do not mean to assent; as when a merchant writes to another, that he is against a certain day, to send him a certain commodity, at a certain price, unless he shall previously forbid." Opposite to this, Mr. Smith has written in pencil, "Surely one man cannot throw the duty of refusal on another, [in] that way?" In the course of a little discussion which we had on this subject, I said, "Suppose the parties have had previously similar transactions?"—"Ah," he answered, "that might make a difference, and evidence a contract to the effect stated; but as nakedly enunciated in the text, I think It cannot be the law of Scotland, or law any where." He made many interesting and valuable remarks from time to time on Scotch law, and expressed a high opinion of the work in question, referring to every portion of it as readily as though it had been his familiar text-book for years. I often found him reading the numbers of the Queen's Bench, Common Pleas, and Exchequer Reports; and he once said, "I have a good many arrears to get through, in this way, before the beginning of term!" One day I saw a prodigious pile of law papers lying on his table, which had just arrived from London. "Why, what are these, my dear Smith?" said I earnestly—for he lay on the sofa in a state of miserable exhaustion. After some minutes' pause, he replied, "It is a very troublesome case. I have to reply or demur to some very harassing pleas of ——."—"But why not postpone them till near the end of October?" "When I am not fatigued, papers amuse me, and occupy my attention." I offered to him my services. "No, thank you—it would fatigue me more to explain the previous state of matters, with which I am familiar, than to draw the pleadings"—and he did it himself. On another occasion, I saw him sitting in his easy chair, deadly pale. When I had placed myself beside him, he said in a faint tone, but calmly and deliberately, "This morning a very serious thing has happened to me," and he mentioned a new and very alarming feature in his complaint, which, alas! fully justified his observation; and during the day he allowed me to request Dr. Duke, who was attending a patient in the hotel, to see him. He did—and on quitting him, told me that of course the case was hopeless; that his friends should be sent for, and he would not answer for his life for a few weeks, or even days. Two or three days afterwards, Dr. Duke saw him again, and had left him only half-an-hour when I called. He was writing a letter to an old friend (one of his executors,) and his face wore an expression of peculiar solemnity. Laying down his pen, and leaning back in his chair, he gently shook my hand, and, in an affectionate manner, said, "Warren, I have just had a startling communication made me by Dr. Duke; he has told me plainly that I cannot live much longer,—that recovery is utterly out of the question,—and that I am nearer death than I suppose." After a pause, I said, "He has been faithful, then, my dear Smith. It was his duty; and I trust he did it in a prudent manner."—"Perfectly," he replied. Profound gloom was in his features, but he was perfectly calm. Presently he said, covering his face with his attenuated hand, "I have none to thank but myself; I have killed myself by going the last circuit, but I could not resist some tempting briefs which awaited me! I now regret that I did not allow my sister to come over, months ago, and go with her to the South of France; but of course wishing now is useless." Again I entreated him to allow her to be sent for. "My dear Warren," said he very decisively, "you and B. have often asked me to do so. I beg you to do so no more. I have private reasons for declining to follow your advice." His voice slightly faltered. His "private reasons" have already been adverted to—they were, his tender love for one whom he would not shock by showing himself to her in the rapid progress of decay! From that day I never saw the semblance of a smile upon his face, nor any appearance of emotion, but only of solemn thoughtfulness. A few days afterwards I said to him, "Well, if it be the will of God that you should never return to your profession, it is certainly consolatory for you to reflect how great a reputation you justly enjoy at the bar, and in how short a time you have gained it. Your name will live." He made no answer for some minutes, but shook his head, and then said, "I have done nothing worthy of being remembered for; but you are very kind for saying so." Even after this, the mail every now and then brought him fresh "papers" from town; and Miss ——, the daughter of the landlady, and who attended him with the utmost solicitude, one evening burst into tears, as she showed me a fresh packet; adding, "It is really heart-breaking to have to take them in to him: he is so weak that he feels a difficulty in even opening them!" It was so, indeed! The two old friends whom he had named as executors, came down to St. Leonards two or three times, and spent several days with him. As the time for our family's return to town approached, he evidently regarded it with uneasiness, and almost daily said, "Must you really go by the 15th?... And —— is also going before that: then I shall be left quite alone, and shall certainly feel dull." A friend of mine, a lady, who resides near St. Leonards, having requested me to introduce her to him, in order that when we were gone she might come and see him, I asked him if he would allow me to do so? "Indeed," said he, faintly, and with a slight flush, "I should not only feel it a compliment, but extremely kind." The lady in question accordingly drove down very kindly almost daily, bringing him grapes and flowers, which he said he felt to be a very delicate attention: and so anxious was he to evince his sense of her courtesy, that he insisted on driving, when very feeble, on a bleak day, to leave a card at the lady's residence, nearly three miles off, with his own hand. When I took my leave of him, he seemed, I thought, a little moved; but said calmly, "If the weather breaks up, I shall return to the Temple: and it is possible that I may take lodgings in another part of the town; but to court I must go, at whatever inconvenience—for I have cases there which I must personally attend to!"

[11] His chambers were No. 2, Mitre Court Buildings, to which he had removed from No. 12, King's Bench Walk, about two years before.

Towards the close of October he followed us to London, alone, and was sadly fatigued and exhausted by his journey. He went at once to his chambers; which he never, with one exception, quitted till his death; lying stretched in his dressing-gown upon the sofa, a large table near him being covered with briefs, cases, and pleadings, which he attended to almost as regularly as if he had been in perfect health. Yet he found it difficult to sit up, his hand trembled when holding even a small book, and his cough was fearfully increased in frequency and violence, and he could get little or no sleep at nights. The reader may imagine the concern and astonishment with which I heard, that about a fortnight after his return, he had actually gone to dine at the Garrick Club! Sitting at his table there, as a friend who saw him told me, "more like a corpse than a living being; in short, I almost thought it must be his ghost!" He left his rooms, however, no more; having his dinner sent in, till within the last few days of his life, from a neighbouring tavern. He had several consultations held at his chambers, in cases where new trials were to be moved for; his leaders, (one of whom was Mr. Sergeant Talfourd,) considerately waving etiquette, and coming to their dying junior's chambers. They were, as may be supposed, most reluctant to transact business with one in his state, but he insisted upon it. He earnestly requested me not to mention at Westminster, or elsewhere, how ill I thought him; "for if you do, my clients will send me no business, and then I shall have nothing to amuse my mind with." Towards the end of the term, he observed to me one morning,—"See how very kind my clients are to me! I suspect they have heard that I cannot go to court, so they send me a great number of pleas, demurrers, and motion papers, which I have merely to sign, and get half a guinea: I think it so considerate!" About the last day of the term, I happened myself to be his opponent, in one of those minor matters of form, a motion for judgment as in case of a nonsuit, on account of my client's not having gone to trial at the preceding assizes. Mr. Smith was lying in a state of great exhaustion on the sofa; but mentioned the "rule." I told him that I had brought my brief with me,—"A peremptory undertaking, I suppose," said he, languidly, "to try at the next assizes?"—"Yes, and I will sign my own papers, and yours too, to save you the trouble,—or your clerk shall?"—"No, thank you," said he, and with difficulty raised himself. "Will you oblige me by giving me a pen?" I did so, and with a trembling hand he wrote his name on the briefs, saying, in a melancholy tone as he wrote, "It is the last time I shall sign my name with yours. Even if you perform your undertaking, I shall not be at the trial." About a week afterwards I found him finishing the last sheet of a huge mass of short-hand writer's notes of an important case in which he was concerned, and he was grievously exhausted. It was in vain to remonstrate with him! An early and devoted friend of his, and I, called upon him daily two or three times, and sat with him as long as our engagements would permit us. We found his mind always vigorous; and though he could converse little, from weakness, and its irritating his cough, his language was as exact and significant as ever, and he liked to hear others talk, especially about what was going on at Westminster. I was sitting silently beside him one afternoon, only a fortnight before his death, when a friend came in, and, after we had sat some time together, asked me a question which had just arisen in his practice. "Don't you think," said he, "that, under these circumstances, we may read the word 'forthwith,' in this act of parliament, to mean, 'as soon as reasonably may be?'" Our poor friend, who had not spoken before, and lay apparently asleep, instantly raised his head, and with some quickness observed, "Ah! if you could only read an act of parliament in any way you liked, what fine things you could do!" The reader is not, however, to suppose that Mr. Smith's mind was exclusively occupied with business, and legal topics. On the contrary, I am certain that he both read and thought much, and anxiously, on religious subjects. I saw the Bible constantly open, and also one or two religious books; in particular, Mr. Wilberforce's "Practical Christianity" lay on his table and on his sofa. He seemed, however, to feel no disposition to converse on such topics, with any one. If any one attempted to lead conversation in that direction, he would either be silent, or in a significant manner change the subject. He had a favourite copy of Dante lying often near him, and it may be interesting to state, that he has left, underscored in pencil, the two following verses in the third canto, (Del Purgatorio,) expressive of faith in the great mysteries of Christianity,—

"Matto e chi spera che nostra ragione, Possa trascorrer la 'nfinita via, Che tiene una sustanzia in tre persone.

State contente, umana gente, al quia: Che si potuto aveste veder tutto, Mestier non era partorir Maria."

It may not be necessary to say it, but I am persuaded that he was a firm believer in the truths of Christianity, and a conscientious member of the Church of England. One day, within about a fortnight of his death, he said, "There is a work which I have often heard you speak of, and which, it does so happen, I never read, though I have often wished to do so; I mean Paley's Horae Paulinae. I may say almost that I know his Evidences off by heart. Now, will you do me the favour of procuring me a copy of the other book, in as large type as you can, and as soon as you can, for," he added with a slight sigh, after a pause, "I have not much time to lose?" I immediately procured him the book in question; and about three days afterwards he said to me, "I have read the Horae Paulinae; it is a book of extraordinary merit; I very much wonder that I never read it before." I asked him if he had read "Butler's Analogy." "Oh yes, of course, several times, and know it well," he replied, rather quickly. Life was visibly ebbing fast away during the first week in December. He grew weaker and weaker almost hourly, and scarcely ever rose from his sofa, where he always lay in his dressing-gown, except to go to his bed-room, which adjoined and opened into his sitting-room. He would even then allow no one to be in his chamber with him during the might! not even his attentive and attached laundress, or his clerk! I once very strongly urged upon him to allow the former to sleep in the chambers. "Either she leaves my chambers at her usual hour," said he, peremptorily, "or I do." We felt it, however, impossible to allow this; and, without his being aware of it, his clerk and laundress by turns continued to spend the night in one of the adjoining rooms. It was well that such was the case, for he began to get delirious during the nights. About ten days before his death, a great and marked change came very suddenly over him: his eyes assumed a strange glazed appearance, and his voice was altogether altered. His mind, however, continued calm and collected as ever. He moaned continually, though gently, assuring us, however, repeatedly that he felt no pain, "but an exhaustion that is quite inconceivable by you." Not many days before his end, he gave us a signal proof of the integrity of his reasoning faculties. Two of his friends, I and another, were sitting with him, and he told us, as he often latterly had, that he heard strange voices in the room. He asked the one who sat next him if there were not strangers at that moment in the room speaking? When assured that there were not, he said very earnestly, "Will you, however, oblige me by looking immediately under the sofa, and tell me whether there is really no one there?" His friend looked, and solemnly assured him that there was no one there. "Now," said he, with some difficulty, after a pause, and suddenly looking at us, "how extraordinary this is! Of course, after what you say, I am bound to believe you, and the voices I hear are consequently imaginary: yet I hear them uttering articulate sounds; they are human voices; they speak to me intelligibly. What can make that impression upon the organ of hearing—upon the tympanum? How is it done? There must be some strange disorder in the organs. I can't understand it, nor the state of my own faculties!" Then he relapsed into the state of drowsy, moaning, half-unconsciousness, in which he spent the last fortnight of his life. For a few days previously, no more briefs or papers were taken in by the clerk: but one, a case for an opinion, which had been brought about a week before, Mr. Smith immediately read over with a view of answering it. In consequence of a communication from the physician, we at once summoned Mr. Smith's two brothers, the one from Dublin Castle, and the other (an officer on board the Devastation Steam Frigate) from Portsmouth. Both of them came as quickly as possible, and remained to the last in affectionate attendance upon their afflicted brother. About three days before his death, he was asked if he wished to receive the sacrament. "Yes," he immediately replied, "I was about to ask for it, but feared I was too ill to go through with it. I request it may now be administered to me as soon as can be, for I am sensible that I have no time to lose; and I beg that the rubric may be strictly complied with in all respects." This he said specially with reference to the prescribed number ("three, or two at the least") of communicants beside himself. The Rev. Mr. Harding, father of one of his intimate friends, being near at hand, immediately attended, and administered that sacred and awful rite: Lieutenant Smith, I, and another, partaking of the sacrament with our dying friend. He was in full possession of his faculties. He could not rise from the sofa, but made a great effort to incline towards the clergyman, lying with his hands clasped upon his breast. When the name of our Saviour was mentioned, he inclined his head with profound reverence of manner. It was, indeed, a very solemn and affecting scene, such as will never be effaced from my memory. When it was over, Mr. Smith gently grasped the hand of Mr. Harding, and faintly thanked him for his kindness in so promptly attending. He was unable, at night, to walk to his bed; to which he was assisted by his brother and a friend. The dark curtain was now rapidly descending between him and this life. He never rose again from bed; but lay therein the same moaning yet comparatively tranquil state in which he had been during the week. On the morning of the day of his death, I went early to sit beside him, alone; gazing at his poor emaciated countenance, with inexpressible feelings. Shortly after I left, his oldest friend took my place; and, after a while, to his great surprise, Mr. Smith, on recognising him, asked if a particular "case,"—"Exparte ——" was not still in chambers? On being answered in the affirmative, he requested his friend to get pen, ink, and paper, and he would dictate the opinion! His friend, though conceiving him to be wandering and delirious, complied with his request; on which Mr. Smith slightly elevated himself in bed, and, to the amazement of his friend, in a perfectly calm and collected manner, but with great difficulty of utterance, dictated not only an appropriate, but a correct and able opinion on a case of considerable difficulty! When he had concluded, with the words, "the case is practically remediless," he requested that what had been written might be read over. It was done, and he said, on its being concluded, "There is only one alteration necessary—strike out the words 'on the case,' leaving it 'action,' simpliciter;" thereby showing an exact appreciation of a point in the case, with reference to the suggested form of action, of much difficulty! After this effort he rallied no more, but lay in a dozing state all day; his friend, his brother, and myself, by turns, sitting at his bedside. He appeared to suffer no pain. I sate with him till about six o'clock, gazing at him with mournful intensity, perceiving that the struggle was rapidly drawing to a close. Being compelled to leave, I intended to have returned at eight o'clock; but, alas! a little before that hour, tidings were brought me that at shortly after seven o'clock our poor friend had been released from his sufferings. A few minutes before he expired, none being present but his brother and the laundress, he gently placed his left hand under his left cheek, and, after a few soft breathings, each longer than the preceding one, without apparent pain, ceased to exist upon earth. I immediately repaired to his chambers, and joined his brother and his oldest friend. They were sitting in mournful silence in his sitting room. Around us were all the evidences of our departed friend's very recent occupancy—his spectacles lay on the table;—many briefs, some of which I had seen his own feeble hands open only a few days before, so remained, as well as various books; among which were two large interleaved copies of his "Mercantile Law" and "Leading Cases," with considerable MS. additions and corrections in his own handwriting. When I looked at all these, and reflected that the prematurely wasted remains of one of my earliest and most faithful friends lay, scarce yet cold, in the adjoining room, I own that I felt it difficult to suppress my emotions.

Quis desiderio sit pudor, aut modus Tam cari capitis?

He died on the 17th December, 1845. On looking among his papers, there was found a will which he had executed so long before as the year 1837, for a reason assigned in that document, viz., that on the 3d of July in that year, was passed the important Act of 7 Will. IV., and 1 Vict. c. 26, which rendered it necessary for all wills to be signed by the testator in the presence of two or more attesting witnesses, none having till then been necessary in the case of wills of personal estate, which alone Mr. Smith left behind him. This document contains some characteristic touches. It begins in this old fashioned and formal style:—

"In the name of God, Amen!

"I, John William Smith, of the Inner Temple, barrister-at-law, being minded to make my last will and testament before the act passed in the first year of the reign of Her present Majesty, (whom God long preserve,) entitled 'An Act for the Amendment of the Law with respect to Wills,' shall have come into operation, do make this my last will and testament; that is to say," &c. &c.: and he proceeded, after giving some trifling mementoes to his friends, to bequeath all his property to his two executors, in trust for his sisters. He directed that his coffin should not be closed till after decay should have visibly commenced in his body; a precaution against the possibility of premature interment: which he always regarded with peculiar apprehension. He proceeded to direct that he should be buried in the burying-ground around the Temple church, a right which he always contended was possessed by every member of the Inn. With this request, however, it was impossible for the Benchers to comply, though anxious, by every means in their power, to do honour to his memory. He was, therefore, buried, on the 24th December, 1845, at Kensal Green. Had it been deemed desirable by his brothers and executors, a great number of the members of the bar would have attended his funeral. As it was, however, sixteen only of those most intimate with him followed his remains to their last resting-place. A small stone, placed at the head of his grave, merely mentions his name, age, and profession, and the day of his death; and adds, that a tablet to his memory is erected in the Temple church. On the ensuing Sunday, the Benchers of the Inner Temple caused the staff, or pole, surmounted with the arms of the Inn, carved in silver, and which is always borne before the Benchers into church, and placed at the corner of their pew, to be covered with crape, and the vergers to wear scarves; a tribute of respect which had never before then, I believe, been paid to any but deceased Benchers. They expressed anxiety to pay every honour to the memory of so distinguished a member of the Inn, and cordially assented to the request that a tablet should be placed in the Triforium, where one of white marble now stands, bearing the following fitting inscription, written by his friend, Mr. Phillimore, of the Oxford circuit:—



Thus died, and thus was honoured in his, alas! premature death, John William Smith: leaving behind him a name of unsullied purity, and a permanent reputation, among a body of men noted for their severe discrimination in estimating character. He practised his profession in the spirit of a GENTLEMAN, disdaining all those vulgar and degrading expedients now too often resorted to, for the purpose of securing success at the bar. He waited, and prepared for, his opportunity with modest patience, and fortitude, and indomitable industry and energy. He possessed an intellect of uncommon power, consummately disciplined, and capable of easily mastering any thing to which its energies were directed. Having devoted himself to jurisprudence, he obtained a marvellously rapid mastery, both theoretically and practically, over its greatest difficulties, leaving behind him writings which have contributed equally to facilitate the study and the practice of the law, in an enlightened spirit. Had Providence been pleased to prolong his life, the voice of the profession would, within a very few years, have called for his elevation to the judicial bench, and he would have proved one of its brightest ornaments. Nor did he sink the scholar in the lawyer, but cherished to the last those varied, elegant, refined, and refining tastes and pursuits, which, having acquired him early academical distinction, rendered in after life his intercourse always delightful to the most accomplished and gifted of his friends and acquaintance, and supplied him with a never-failing source of intellectual recreation. Above all, his conduct was uniformly characterised by truth and honour, by generosity and munificence, hid from nearly all but the objects of it; and by a profound reverence for religion, and a sincere faith in that Christianity whose consolations he experienced in the trying time of sickness and death, and which could alone afford him a well-founded hope of eternal peace and happiness.

Inner Temple, 8th January, 1847.

* * * * *


[12] Memoirs of General Pepe. Written by himself. London, 1846.

Upon the fifth day of February, 1783, the province of Calabria was visited with a terrific earthquake. "The sway of earth shook like a thing unfirm," thousands of houses crumbled to their base, tens of thousands of human beings were buried beneath ruins, or engulfed by the gaping ground. In the small and ancient town of Squillace, the devastation was frightful; amongst others, the spacious mansion of the noble family of PEPE was overthrown and utterly destroyed. At the time of this calamity, Irene Assanti, the wife of Gregorio Pepe, was in daily expectation of being brought to bed. In vain was it attempted to find a fitting refuge for the suffering and feeble woman. The ruin that had overtaken her dwelling extended for leagues around; not a roof-tree stood in the doomed district; misery and desolation reigned throughout the land. A tent was hastily erected; and, under its scanty shelter, in a season of extreme rigour, the lady gave birth to a son, who was baptised by the name of William.

Soothsayers would have augured a stormy existence to the child who thus first saw light when "the frame and huge foundation of the earth shak'd like a coward." Such omens might have attended the birth of an Alexander, a Caesar, or a Napoleon, marking the advent of one of those human meteors sent at long intervals to astonish and dazzle the world. In this instance, if the man born during Nature's most terrible convulsion, was not destined to exercise a material or lasting influence on the fate of nations, at least his lot was cast in troublous and agitated times; he took share in great events, came in contact with extraordinary men, passed through perils and adventures such as few encounter, and fewer still survive. The last sixty years, comprising the most interesting and important chapter in the history of Europe, perhaps of the world, have been prolific in sudden transformations and startling reverses of fortune. During that period of revolution and restless activity, we have seen peasants become princes, private soldiers occupying the thrones of great and civilized countries, obscure individuals in every walk of life raised by opportunity, genius, and the caprice of fate, to the most exalted positions. Some of these have maintained themselves on the giddy pinnacle on which fortune placed them. They are the few. Reverses, even more sudden and extraordinary than their upward progress, have cast down the majority from their high estate. The transitions have been rapid, from the palace to the prison, from the sway of kingdoms to the sufferings of emigration, from the command of mighty armies to the weariness and obscurity of a forced inactivity. Fortunes built up in a year, have been knocked down in a month; again reconstructed, they have been yet more rapidly destroyed. Such changes have been as numerous, often as strikingly contrasted, as the shifting visions of a magic lantern, or the fitful corruscations of a firework. Within a short half century, how often has the regal purple been bartered for the fugitive's disguise, the dictator's robe for a prison garb, the fortunate soldier's baton of command for the pilgrim's staff and the bitter bread of exile. Notable instances of such disastrous fluctuations are to be found in the memoirs of the Neapolitan general Guglielmo Pepe.

One of the youngest of a family of two-and-twenty children, born of wealthy and highly descended parents, young Pepe was placed, before he was seven years old, in the royal college of Catanzaro. There, his father, anxious that his education should be complete and excellent, intended him to remain until the age of eighteen. The peculiar disposition of the boy proved a grave obstacle to the accomplishment of the paternal wish. Nature had destined him for a military career, and his tendency to a soldier's life was early manifest. To the studies that would have qualified him for a learned profession, he showed an insurmountable aversion; Latin he detested; on the other hand, geography, history, and mathematics, were cultivated by him with a zeal and eagerness that astonished his professors. He had just attained his fourteenth year, when two of his brothers, but a little older than himself, left the military college at Naples, and received commissions in the army. This redoubled the military ardour of their junior, who had already caught the warlike feeling with which the Neapolitan government strove at that time to inspire the nation. He urged his father to purchase him a commission; his father refused, and the wilful boy absconded from college. Brought back again, he a second time escaped, and enlisted in a regiment of riflemen. Again he was captured, and the poor Sergeant who had accepted the juvenile recruit, was thrown into prison for enticing away a pupil of the royal college. But this time Gregorio Pepe thought it advisable to yield to the wishes of his headstrong son, and allowed him to enter the military school. He remained there two years, and left it to join, as drill sergeant, a company of the newly raised national guard. This was in 1799. Towards the close of the previous year, the ill-disciplined and inefficient Neapolitan army, composed for the most part of raw and uninstructed levies, had marched into the Papal States; and, the French having evacuated it, had entered Rome without opposition. The triumph was very brief. Neither the Neapolitan troops, nor their leader, General Mack, were capable of contending successfully against the skilful officers and well-trained soldiers opposed to them. On the first alarm, the pusillanimous Ferdinand of Naples fled from Rome in disguise, and soon afterwards embarked for Sicily with his wife and court, carrying away "the wealth and jewels of the crown, the most valuable antiquities, the most precious works of art, and what remained from the pillage of the banks and churches, which had been lying in the mint either in bullion or specie." The amount of the rich treasure was estimated at twenty millions of ducats. The French still advanced, feebly opposed by the disheartened Neapolitans and their inefficient foreign leaders. Gaeta, the Gibraltar of Italy, was surrendered after a few hours' siege, by an old general so ignorant of his profession that we are told he was accustomed to seek counsel from the bishop of the town. Capua, the bulwark of the capital, was given up by Ferdinand's vicar-general, Prince Pignatelli, in consideration of a two months' truce, which lasted, however, but as many days. A condition of this disgraceful armistice was a payment of two and a half millions of ducats. The money was not forthcoming; and the French commander, General Championnet, marched upon Naples. After three days' obstinate combat, maintained around and in the city by the lazzaroni, victory remained with the assailants. They were aided by the republican or patriot party, who delivered up to them the fort of St. Elmo. By this party, then a very small minority in Naples—much the greater part of whose population, ignorant, fanatical, and worked upon by wily priests, were frantic in their hatred of the French, and of the Jacobins, as they called the liberal section of their own countrymen—the triumph of the invaders was looked upon as a temporary evil, trifling when compared with the advantages that would result from it. Amongst the most enthusiastic liberals was young Pepe, who had already conceived that ardent love of liberty, which, throughout life, has been his mainspring of action. He hailed with delight the publication of the edict by which Naples was erected into the Parthenopean Republic. He was eager to enter the new army, whose organisation had been decreed, but his tender age made his brothers oppose his wish, and he was fain to content himself with a post in the national guard.

The new republic was destined to a very short existence. The provisional government, consisting, in imitation of the French system, of six committees, displayed little activity and still less judgment. It neglected to conciliate and win over the popular party, which remained stanch to the Bourbons and absolutism; it took little pains to convince the bigoted multitude of the advantages and blessings of a free constitution. The treasury was bare, the harvest had been bad, the coast was blockaded, and their difficulties were aggravated by the heavy taxes imposed, and rigorously levied by Championnet for the support of his army. These impositions, and a decree for the disarming of the people, produced discontent even amongst the friends of the new institutions. Nevertheless, Championnet, by showing an interest in the rising Republic, had gained a certain degree of popularity, when he was recalled to Paris to be tried by a court-martial, for his opposition to the exactions of a French civil commissary, "one of those voracious blood-suckers, whom the French government was wont to fasten upon the newly formed republics which it created, and upon which it bestowed the derisive title of independent." General Macdonald succeeded Championnet; the commissary, maintained in his functions, had full scope for extortion, and the Republican government, unable, for want of money, to organise an army that might have given permanence to its existence, became daily more unpopular, and visibly tottered to its downfal. Meanwhile, on the opposite coast of Sicily, Ferdinand, his adherents and allies, were any thing but idle. They issued proclamations, lavished money, spared no means to excite the people to revolt against the French and their favourers. Every support and encouragement was given to the disaffected, and at last Cardinal Ruffo landed in Calabria, and by proclamations issued in his name, and in that of Ferdinand, promised the property and estates of the patriots to those who should take up arms for the holy cause of the king. Apulia was overrun by four Corsican adventurers; the other provinces were infested by bands of ruffians, mostly the outpourings of the prisons and galleys, which had been thrown open by the furious populace when preparing to defend the city against the French. A miller, by name Mammone, was one of the most ferocious and dreaded leaders of these banditti. His cruelties, as related by General Pepe, almost exceed belief. "He butchered in the most dreadful manner all who fell into his power, and with his own hands murdered nearly four hundred of them, chiefly Frenchmen and Neapolitans. Blood-thirsty by nature, he seemed to revel in shedding blood, and carried his cruelty to such a pitch, that when seated at his meals, he delighted in having constantly before him a human head newly divided from the trunk and streaming with blood. This monster, the perpetrator of so many horrors, was, nevertheless, greeted by King Ferdinand and his Queen Caroline, in the most affectionate manner by the title of 'dear general,' and of 'faithful supporter of the throne.'"

After long and unaccountable delay, two columns were formed for the pursuit of the Bourbonites, and a regular civil war began. At first the Republicans, supported by the French, had the best of the fight, and the strong towns of Andria and Trani were taken, after a vigorous defence, with great loss to the royalists, and no inconsiderable one to the assailants. But the Austrians and Russians now prepared to drive the French from northern Italy, and Macdonald, compelled to keep his army together, was unable to follow up these successes. Cardinal Ruffo's forces increased; he besieged and took several towns, and overran entire provinces, his ferocious followers committing, as they proceeded, the most terrible excesses and acts of cruelty. At last, in the month of May, Macdonald evacuated the Neapolitan territory, placing French garrisons in the castle of St. Elmo and in the fortresses of Capua and Gaeta, and leaving the handful of republicans to defend themselves as best they might against the vast majority of the nation that supported the cause of the king. Against such odds, the enthusiasm of the liberals, ill assisted by a feeble and vacillating government, was unable successfully to contend. Nevertheless, they still struggled on; fresh troops were raised, and in a sort of sacred battalion, composed of officers, young Pepe, who had just completed his sixteenth year, was appointed serjeant-major. In this capacity he first saw fire, in a skirmish with a band of armed peasants. But the enemy gained ground, the limits of the Republic grew each day narrower, until at last they were restricted to the capital and its immediate environs. Cardinal Ruffo's army, now amounting to forty thousand men, backed by detachments of foreign troops, and by regiments landed from Sicily, had improved in discipline and organisation, and, flushed with their successes, ventured to attack Naples. They encountered an obstinate resistance. General Schipani, an officer of distinguished bravery but little skill, commanded the body of troops of which Pepe's battalion formed a part, and occupied the most advanced of the Republican positions, between Torre dell' Annunziata and Castella-mare. The Cardinal's troops cut him off from Naples, and whilst gallantly endeavouring to force a passage through them and assist the city, his little band, fifteen hundred in number, was assailed by a body of Russians, and by a thousand Calabrians under the command of Pano di Grano, a returned galley slave, and Ruffo's favourite officer. In a narrow road a desperate contest ensued, and terminated in the defeat of the Republicans. Pepe received a bayonet thrust and a sabre cut, and although he escaped at the time, was soon afterwards captured with some of his comrades, by a party of peasants armed with scythes. This was the commencement of the young soldier's misfortunes. Suffering from hunger, thirst, and wounds, he was imprisoned in a damp and unwholesome warehouse, and subjected to the brutality of his peasant guards, who called in their women to gaze at the ill-fated patriots, as if they had been strange and savage animals caught in a snare, and to be viewed as objects of mingled curiosity and loathing. On the following day, when a detachment of the Cardinal's troops came to take charge of the prisoners and escort them to the capital, they were so exhausted with fatigue, loss of blood, and want of food, that before they could move, it was necessary to supply them with bread and water. This meagre refreshment taken, they were stripped to their shirts, manacled in couples, and marched off to Naples. Although informed of it by their captors, many of them had refused to credit the downfal of the city. "This illusion was soon dispelled by the mournful spectacle which presented itself to our gaze, and which I believe has very rarely been equalled. Men and women of every condition were being barbarously dragged along the road, most of them streaming with blood, many half dead, and stripped of every article of apparel, presenting altogether the most deplorable sight the mind can conceive. The shrieks and howlings of that ferocious mob were such, that it seemed composed, not of human beings, but of a horde of wild beasts. They cast stones and every species of filth at us, threatening to tear us to pieces." The Iazzaroni, instigated by the priests,—at Naples, as every where, the steadfast partisans of absolutism,—were the chief perpetrators of these atrocious misdeeds. Scarcely a party of patriot prisoners passed through the streets without some of its number being torn from the hands of the escort and sacrificed to the blind fury of the benighted populace. And it was a question if death were not preferable to the barbarous treatment reserved for the survivors. Twenty thousand men, half-naked, many of them wounded, were crowded into the halls of the public granary, now converted into a temporary prison. Heat, filth, and vermin, were the least of the evils endured by these unfortunates, amongst whom were noblemen, priests, officers of high rank, many literary men, several Celestin monks, and, to crown all, a number of lunatics. The Hospital of Incurables had been held out by the medical students against the royalists, and when the latter took it, they sent both sane and insane to prison, where some of the madmen were detained on suspicion of feigning lunacy. "One of these poor wretches was the cause of a most disastrous scene, which we witnessed. Having struck one of the royal officers on the face, the latter called out, 'to arms!' and as soon as he was surrounded by his followers, he rushed furiously upon the lunatic, whom he clove in two by a sabre stroke. During this time the sentinels placed in the street to guard the royal granary, fired musket-shots at the windows, and the bullets, rebounding from the ceiling of the building, wounded and killed several amongst us." The horrors of their situation, and the pangs of hunger and thirst were so great, that some of the sane amongst the prisoners nearly went mad. It was not till the third day that a scanty ration of bread and water was distributed. This spare diet and the absence of covering had one good effect, in preserving them from fever, and causing their wounds to heal rapidly. Their republican enthusiasm continued unabated, at least as regarded the younger men. "We had four poets amongst us, who sang by turns extemporary hymns to freedom." After twenty-two days passed in the granary, Pepe and a number of his companions were placed on board a Neapolitan corvette. Here they were, if any thing, worse off than in their previous prison. In a short time they were taken on shore again and lodged in the Vicaria prison, whence, each day, one or other of them was conveyed to the scaffold. Pepe was summoned before the Junta of State, where the bold sharpness of his replies irritated his judge, who consigned him to the Criminali, dark and horrible dungeons, appropriated to the worst of criminals. Three men loaded with fetters, and entirely naked, were his companions in this gloomy cavern. Two of them were notorious malefactors, "the third recalled vividly to my mind Voltaire's Lusignan in the tragedy of Zaire, which I had been perusing a few days before. His body was covered with hair, his head bald, a long and thick black beard contrasted forcibly with his ruddy lips and pearly teeth." His name was Lemaitre, Marquis of Guarda Alfieri, and he had been several years imprisoned for participation in a republican conspiracy.

At last, after six months of the most painful captivity, Pepe, and seven hundred others sentenced to exile, were put on board three small vessels, and after a voyage of twenty-two days, during which their numbers were thinned by a destructive epidemic, were landed at Marseilles. There the first thing they learned was the arrival of Buonaparte from Egypt, and his enthusiastic reception in France. During his absence nothing had gone well, and the French nation looked to him to redeem their disasters. Italy was again in the hands of the Austrians. To aid in their expulsion, the formation of an Italian legion was decreed, and this Pepe hastened to join. Upon reaching Dijon, where it was organising, he found that every corps had its full compliment of officers. As a supernumerary he was ordered to a depot, where he would receive lieutenant's half-pay until his services were required. Like many others of the exiles, he preferred serving as a volunteer to remaining idle, and accordingly joined a company of riflemen intended to be mounted, but who, from the scarcity of horses, were for the most part on foot. At the beginning of May, 1800, the legion, consisting of six thousand men, marched into Switzerland, and crossed the St. Bernard. They were detached from Napoleon's army during the battle of Marengo, but distinguished themselves at the fight of the Jesia, and in the Valteline, until, by the truce which followed that memorable campaign, Pepe again found himself without employment, and in depot at Pavia. His restless spirit would not tolerate repose, and he entered the service of the Tuscan republic, where he continued until the truce of Luneville. An amnesty for Neapolitan political refugees being a condition of the treaty between France and Naples, he might now have returned home; but his hatred of the Bourbons indisposed him to such a step, and he resolved to enter the French army serving in Egypt. Murat was then commander-in-chief of the French troops in central Italy, and to him the young officer applied for a commission. He received that of a captain, and was about to start for Alexandria when his purse was emptied at a faro table. This compelled him to visit Naples for fresh supplies, and owing to the delay, before he could embark, the French had received orders to evacuate Egypt.

Notwithstanding the presence of the French troops, who by the treaty concluded at Florence, on terms ignominious for Naples, occupied several Neapolitan provinces, the patriot party again began to conspire against Ferdinand, and in their machinations Pepe, in spite of his youth, soon took a prominent share. His aversion to the Neapolitan Bourbons was only equalled by the indignation with which he saw his native land garrisoned by foreigners, feeding upon its fatness. Murat, who at first had viewed him with favour, soon looked upon him as a dangerous political agitator. At Rome he was imprisoned, but obtained his release through the interest of a friend. All warnings were unavailing; he was foremost in every plot, until at last he was arrested at Naples and sent to the Fossa del Maritimo. He gives a striking description of this horrible place of confinement. Opposite to the city of Trapano in Sicily, at a distance of thirty miles, is the small island or rather the barren rock of the Maritimo, "a Sicilian anagram of Morte-mia, a name quite characteristic of the horror of the place. Upon a point of this island stands a castle where, in former days, watch was kept for the approach of the African pirates who infested the Sicilian coasts. Upon a platform of the castle, situated at the north, a deep cistern had been made in the rock. Towards the middle of the seventeenth century, the water had been emptied from this cistern in order to transform it into a prison for a wretched youth who had murdered his own father in the most barbarous manner, but who was too young to be condemned to death." In this den, which since 1799 had been used as a state prison, Pepe and five other political offenders were confined. It was six feet wide and twenty-two long; only in the centre could they stand upright: it was so dark that a lamp was kept constantly burning; the rain entered through the only opening that gave air; and two prisoners, who had already been there some time, declared that they had counted twenty-two species of insects. Fortunately for him, Pepe was not kept long in this dismal cell, although his next prison, a dungeon cut in the rock, in the very deepest vault of the castle of St. Catherine, on the island of Favignana, was but little preferable. Here, however, he obtained books, and was able to complete his education, which had been interrupted by the revolution. "My passion for study," he says, "was carried to such an extent, that I felt pain and regret whenever I did not devote to it, either in reading or writing, fourteen hours a-day. During the three years of my imprisonment, my application was unremitting, and I owe to it that I did not fall into the habits, so common to prisoners, of smoking and drinking."

Most graphically told, the chapters relating to General Pepe's imprisonment, are as amusing as any romance. More than once did he and his fellow-captive muse over an escape, and ponder its possibilities. These were very remote. At last they devised a plan, which they thought would ensure their transfer to a less rigorous confinement, whence they might find means of flight. Twenty galley slaves were imprisoned in the castle. At night they occupied the same apartment with Pepe; in the day-time they were set to work in different parts of the fortress. These men were easily persuaded to adopt an ingenious plan of escape devised by Pepe, who, with his friend, was to remain behind, "upon the plea that, as the government attached far more importance to the custody of state prisoners, than to that of common criminals, our company would prove more dangerous than useful to them." The fact was, that the chances were a hundred to one against the escape. Nevertheless it was accomplished, although the fugitives, with one exception, were promptly retaken. Pepe and his companion now made a merit of not having participated in it, and wrote to their friends at Naples, entreating them to urge their release. This would hardly have been obtained but for the outbreak of hostilities. Ferdinand, without waiting to see the result of the struggle between Austria, Russia, and France, declared against the latter power. He soon had reason to repent his precipitation. The crushing campaign of Austerlitz, followed by the march of Massena upon Naples, sent him and his court flying into Sicily. In the confusion that ensued, Pepe was set at liberty. Embarking at Messina, he once more landed in his native province of Calabria, and reached Naples, a wiser and better man than he had left it. Three years' study and reflection had cooled the rash fervour of his youthful aspirations. His desire for his country's freedom was unabated, but his Utopian visions of a republic had lost much of the brilliant colouring that had dazzled his boyish imagination. Prudence told him that it was unwise, by aiming at too much, to risk obtaining nothing. He was not singular in this modification of his views. The great majority of the liberal party had also moderated their pretensions; and in Naples, as in France, the word republic was now seldom spoken but in derision. Pepe was content that the desired changes should come more gradually than would have suited him before three years of thought and dungeon-life had sobered and matured his judgment. And henceforward we find his endeavours directed, steadily and unceasingly, to the establishment of free institutions under a constitutional monarchy.

By the grace of his brother the king-maker, Joseph Buonaparte was now upon the throne of Naples. On arriving in that capital, Pepe was presented to the minister of war, General Dumas. "From my extreme anxiety to produce the well or ill digested theories I had imbibed in prison, I was very loquacious, and urged so strongly the danger threatened to Calabria by the impending landing, not only of the British, but of all Cardinal Ruffo's banditti levies, who had acquired consequence in 1799, that he ordered a militia to be raised throughout the country." By Dumas, the young theorist, whose predictions, however, were not ill-founded, was presented to King Joseph, of whom he speaks in no very favourable terms. He admits him to have been courteous and affable, not deficient in information, and to have established many of those institutions which pave the way to liberty; but he blames him for neglecting his ample opportunities of establishing his power on a solid basis, and acquiring the affections of his subjects. The higher classes—of which, in Naples, contrary to what is the case in many countries, the liberal party consists—were devoted to Joseph, until he disgusted them by various parts of his conduct, and especially by the introduction of a horde of Frenchmen, who monopolised the most lucrative posts, both civil and military. He also gave offence by his luxurious and expensive manner of living. The sumptuousness of his table was proverbial throughout the kingdom, and, having left Madame Joseph in France, he permitted himself considerable license in other respects, living a very free life amongst the young beauties of his court, whom he used to take with him on his hunting excursions under the name of cacciatrici. It is probable that Neapolitan morality might have found little ground for censure in these Sardanapalian indulgences, but for the heavy expenses they entailed upon Neapolitan pockets, and, indeed, they were most unjustifiable in a country impoverished by wars and revolutions.

Personally, Pepe had no reason to complain of the king, who gave him a lieutenant-colonelcy and charged him with the organisation of the militia in Upper Calabria. Eager to serve his country, the newly made field officer hurried to his post. The English had not yet landed, but some of Ruffo's former followers had been put on shore, and laboured, not unsuccessfully, to induce the peasantry to revolt. Pepe soon found himself in action. Surprised in the town of Scigliano, he shut himself up in a house with two-and-twenty French soldiers, and there made a desperate defence against an overpowering force of the insurgents. Compelled to surrender, he received from his captors intelligence of the battle of Maida. So persuaded was he of the invincibility of the French, that at first he could not credit their defeat. He gives a brief account of the action, founded upon the report of French officers of rank present at it, and upon details collected from the inhabitants of Maida and Nicastro. It smells of its French origin. At the battle of Maida there were barely thirteen thousand men in the field, of which the larger portion, by some twenty-five hundred, were French. But the victory was as complete and as creditable to the handful of victors, as it could have been had those numbers been multiplied by ten. And the action was especially interesting as the first, during the late war, in which the superiority of British bayonets over those of any other nation, was proved and established beyond the possibility of dispute,—the first of a long succession of triumphs, the Alpha of the series of which Waterloo was the Omega. Destitute of cavalry, and fiercely attacked by a superior force of horse and foot, the British grenadiers stemmed the tide of the foeman's pride, and showed the men who had overrun half Europe, that they had at last met their masters. By General Pepe, Regnier's army is represented as worn out by fatigue, and as attacking their opponents at the termination of a succession of forced marches, without any interval for repose and refreshment. It is well authenticated that this was the case with but a small portion of the French force, which joined the main body during the night preceding the action. The bulk of Regnier's division, numerically superior to the British, had been encamped upon the heights of Maida at least twenty-four hours previously to the battle. General Pepe says nothing of the brilliant charge with the bayonet that first broke the French ranks, and by which the victory was half won. "The English," he says, "who had constantly practised firing at a target in Sicily, and who were become skilful marksmen, directed their shot so ably that they caused great havoc in the French ranks, killing and wounding many. General Regnier now ordered the second line to advance and defile through the first, and as the movement is extremely difficult of execution under an enemy's fire, the French army fell into confusion, and Regnier was obliged to retreat." A retreat which history calls a precipitate flight. General Pepe's version of the affair reads like the bulletin of a vanquished commander trying to make the best of his disaster. The General, although he inveighs against the French when they interfere with the independence of his cara patria, betrays a leaning to them on mere campaigning questions. This is not unnatural. Both in Italy and Spain he fought by their side and witnessed their gallantry. With regard to the English, however his subsequent residence in this country and intimacy with various Englishmen may have modified his opinion of them, they were certainly in no good odour with him forty years ago, at least as a nation. They supported the cause he detested, that of an absolute King; and to their greatest naval hero, he attributes the death, not only of Carraciolo, but of a long list of Italian patriots. His book is written in something of a partisan spirit, nor could it well be otherwise, with so fervent a politician. His account of many events and circumstances differs widely from that given by his former companion in arms, Colletta, whom he speaks of with contempt and dislike, and frequently accuses of misstatement and wilful falsehood. "Men," he says, "of loose morals, and so corrupt that they reflected contempt and abhorrence upon those who associated with them. Such were Catalani d'Azzia and the historian Pietro Colletta." That party feeling influenced Colletta, to the prejudice of the impartiality of his writings, is pretty generally admitted. But does General Pepe feel that his own withers are unwrung? Can he, hand on conscience, declare himself guiltless of exaggeration? Probably he believes himself so; there is evidence in his memoirs of honesty of purpose, and of a wish to do justice to all; but the best of us are led astray by our predilections, and it is right to be on one's guard against the colouring given to men's actions, and to great events, by the political prejudices of an ardent partisan.

Delivered into the hands of Pano di Grano, the ex-galley slave, now a royalist chief, Pepe was kindly treated, and, being carelessly guarded, effected his escape. Recaptured, he was about to be shot, when an order for his release was obtained from Sir John Stewart, who offered him, he informs us, the command of an English regiment, if he would change sides and serve King Ferdinand. He blames that general for having been in such haste to re-embark his troops, thus abandoning the insurgents to their fate; and is of opinion, that if he had continued to advance, flanked by the Calabrian bands, his forces would have increased, and he would have reached Naples. On the departure of the British, Massena commenced vigorous operations for the suppression of the insurrection, and Pepe was actively employed in the organisation of the Calabrian patriots. Massena promised him the colonelcy of a light infantry regiment about to be raised; but upon the Marshal being summoned to Germany by Napoleon, the project was given up, and Pepe could not even get employment in his rank of lieutenant-colonel. Disgusted at this injustice, and preferring foreign service to residence in his own country, where he had the mortification of seeing the French paramount, he embarked for Corfu as major on the staff.

After a year's absence, during which he narrowly escaped death by shipwreck and met with various other adventures, Pepe returned to Naples. It was in 1808: Napoleon had created his brother King of Spain, and given the Neapolitan crown to the Grand Duke of Berg. Soldat avant tout, Murat's first care was the amelioration of the army, then in a deplorable state. To this end he sent for all the Neapolitan officers employed in the Ionian islands. Pepe was amongst the number. Presenting himself before King Joachim, he exhibited his testimonials of service, and claimed the rank of colonel. The king replied, by appointing him one of his orderly officers, as a proof of the good opinion he had of him. "I recollect that I was so engrossed by admiration of the elegance of his appearance, and the affability of his address, that I omitted expressing my thanks. He talked to me a great deal about the Neapolitan army, and manifested a confidence in us that even exceeded my own; and, God knows, that was not small. His conversation filled me with such delight, that, had it not been for fear lest he should mistake my ardour of patriotism for courtier-like flattery, I could have fallen at his feet and worshipped him. It seemed to me that I beheld in him the Charles XII. of the Neapolitans."

Murat was the very man to become at once popular with an excitable and imaginative people. His handsome person, his dash and brilliancy, his reputation for romantic and chivalrous courage, his winning smile, and affable manner, prepossessed the Neapolitans in his favour, and they joyfully received him in exchange for Joseph. But the dashing commander was not of the stuff of which kings should be made; still less was he the man to found and consolidate a new dynasty, and reduce to order a fickle and divided nation. Strong-handed, but weak-headed,—a capital man of action, but valueless at the council-board,—Murat's place was at the head of charging squadrons. There he was a host in himself; in the cabinet he was a cipher. He was not equal even to the organisation of the troops whom, in the field, he so effectively handled. His good nature rendered him unwilling to refuse a favour, and, as there were no fixed and stringent regulations for the appointment and promotion of officers, the higher posts of his army were often most inefficiently occupied. "He could never resist the supplications of the courtiers, still less the entreaties of the ladies about the court."—(Pepe's Memoirs, page 262.) And again, "Murat was a Charles XII. in the field, but a Francis I. in his court. He would have regarded the refusal of a favour to any lady of the court, even though she were not his mistress, as an indignity." His debonnaire facility was so well known, that people used to way-lay him in the street with a petition and an ink-stand, and he often signed, without inquiry, things that should never have been granted. "One day he was returning from the Campo di Marte, when a woman, in tears, and holding a petition in her hand, stood forward to present it to him. His horse, frightened at the sight of the paper, kicked and reared, and ended by throwing his majesty some distance from the spot. After swearing roundly, in the French fashion, Joachim took the paper and granted its request—the life of the woman's husband, who was to have been executed the following day." As his orderly officer, and subsequently, when promoted to a higher military grade, as his aide-de-camp, General Pepe saw a great deal of Murat, and we are disposed to place great faith in his evidence concerning that splendid soldier but poor king. His feelings towards Joachim were of a nature to ensure the impartiality of his testimony: as his military chief, and as a private friend, he adored him; as a sovereign he blamed his acts, and was strenuously opposed to his system of government. He seems never to have satisfactorily ascertained the king's real feelings towards himself: at times he thought that he was really a favourite, at others, he imagined himself disliked for his obstinate political opposition, and for the pertinacity with which he urged Murat to grant the nation a constitution. It is probable that Joachim's sentiments towards his wrong-headed follower, whom he used to call the tribune, and the savage, were of a mixed nature; but, whether he liked him or not, he evidently esteemed and valued him. No other officer was so constantly employed on confidential, important, and hazardous missions, both previously to the battle of Wagram, when the Anglo-Sicilians menaced Naples with an invasion, and at a later period, when Murat entertained a design of landing in Sicily. In this project the king was thwarted by the chief of his staff, the French general, Grenier, a nominee of Napoleon's, who, with three French generals of division, strongly opposed the invasion of Sicily, acting, as General Pepe believes, on private instructions from the emperor. "The great aim of Napoleon was, so to divert the attention of the English, as to cause them to withdraw part of their forces from Spain and the Ionian islands, whilst that of Joachim was, simply to get possession of Sicily." In pursuance of this design, the king established himself, with 22,000 men, in and around the town of Scylla. His own head-quarters were upon the summit of a hill, in a magnificent tent, containing one large saloon and six small chambers. "The tricolor banners, streaming on its summit, seemed to defy the English batteries on the opposite shore, which discharged bombs and shot that not only could reach the king's tent, but even fell beyond it. One day, three balls descended into the tent, where I was dining with the other officers of the king's household, although it was situated farther back than that of Joachim." From this exposed position Murat gazed at Sicily through a telescope, and tried to persuade himself that it was his. But English ships and men continued to arrive at Messina, rendering his enjoyment of his nominal possession each day less probable. So sharp a look-out was kept by the British fleet, that it was impossible to obtain intelligence from Sicily. The vessels could be counted; but the amount of land forces was unknown, and this Murat was most anxious to ascertain. He ordered Pepe to take two of the boats called scorridore, to land in Sicily during the night, and bring off a peasant, a soldier, or even a woman; any thing, in short, that could speak. The expedition was so dangerous, that Pepe expected never to return, and made all arrangements respecting the disposal of his property, as if condemned to certain death. The two naval officers whom he warned for the duty, looked at him with horror and astonishment, and asked what he had done, that the king wanted to get rid of him. To add to the peril, it was a bright moonlight night. Instead of perishing, however, he was fortunate enough to capture an English boat, having on board eight smugglers, spies of General Stewart. Murat's impatience was so great, that he came into the saloon of his tent, with only his shirt on, to receive his successful emissary; and General Pepe confesses, that if the king was delighted at receiving news, he himself was no less so, at having escaped with life and liberty. At last the invasion was attempted by a division of Neapolitan troops, and totally failed. Part of the invaders were taken prisoners: the remainder only escaped by favour of the strong current, which prevented the English from coming up with them. Murat returned to Naples, having spent a vast deal of money on these very expensive and fruitless operations. To Napoleon alone had they been of any use. He had "succeeded in conveying the necessary provisions to the Ionian islands whilst the seas were free from the enemy. At the same time, he had not to contend in Spain with that portion of the British forces which had been sent to protect Sicily."

In the stir and excitement of campaigning, Pepe managed to endure the presence of the French, whom he disliked, not because they were Frenchmen, but in their quality of foreigners, and of intruders in his country. He felt them to be a necessary evil, in the absence of an efficient native army, which Murat, impatient of his dependence on Napoleon,—who, according to his custom, treated him rather as a subject than as a sovereign,—perseveringly endeavoured to organise. Had the king's talents been equal to his decision and industry, he could not have failed of success. As it was, his efforts had little result. Pepe observed this with pain, and his exaggerated feelings of nationality again obtaining the ascendency, he determined once more to expatriate himself. He reminded Murat of an old promise to give him the command of one of the Italian regiments then serving in Spain. The king reproached him slightly with wishing to leave him; but, on his urging his request, and pleading a desire to improve himself in his profession, he appointed him colonel of the 8th of the line, formed out of the remnants of three regiments, food for powder, furnished to Napoleon by Naples. At the end of 1810, Pepe took his departure, passed through France, and reached Saragossa. There he met his brother Florestano, on his way back to Naples, where he received, on the recommendation of Marshal Suchet, and by the express desire of Buonaparte, the rank of major-general for his good services in the Peninsula. The career of this distinguished officer is highly interesting. At the siege of Andria, in 1799, he was shot through the breast whilst scaling the walls at the head of his company of grenadiers. Without being mortal, the wound was extremely severe, and the surgeon who attended him, and who was esteemed the most skilful in Naples, cut his chest completely open, in order the better to treat it. An India-rubber tube was inserted in the centre of the gash to receive the oozing blood. So terrible was the operation, that the surgeon wished him to be held down by four strong men. To this Florestano refused to submit, and bore the anguish without a movement or a murmur. He was then told that the greatest care and regularity of living were essential to his existence. His answer was, "that he preferred a month's life of freedom to an age of solicitude about living;" and with this ghastly gaping wound he lived, in spite of the predictions of his leech, through fifteen campaigns. In command of a brigade of cavalry, he took share in the Russian expedition, and, on the night of the 6th December 1812, it fell to him to escort Napoleon from Osmiana to Wilna. Out of two regiments, not more than thirty or forty men arrived. The emperor's postilion was frozen to death, and had to be replaced by an Italian officer, who volunteered his services. The two colonels of the brigade had their extremities frozen, and Florestano Pepe shared the same fate, losing half his right foot, and only reaching Dantzic through the assistance of a devoted aide-de-camp. But, even thus mutilated, the heroic soldier would not abandon his beloved profession, and, during the final struggle against the Austrians in 1815, he was made lieutenant-general, by Murat, upon the field of battle.

On assuming command of his regiment, Colonel Pepe was as much struck by its martial aspect, as he was vexed at its clumsy manoeuvres, and low moral condition. Both men and officers lacked instruction. The former were most incorrigible thieves. Plundering was a pretty common practice with the French armies in Spain, even in Suchet's corps, which was one of the best disciplined: and the Italians, anxious not to be outdone in any respect by their allies, were the most accomplished of depredators. They had come in fact to hold theft meritorious, and designated it by the elegant name of poetry. This slang term had become so general, that it was used even by the officers; and the adjutant of Pepe's regiment, in reporting a marauder to him, calls the man a poet. The prosaic application of a couple of hundred lashes to the shoulders of this culprit, served as a warning to his fellows, and soon the crime became of rare occurrence. The officers, although deficient in the theory of their profession, "were brave and honourable men, and had shown their valour, not only against the enemy, but in numerous duels, fought with the French, justifying fully, a saying of Machiavel, that the courage of the Italians, when opposed man to man, is far superior to that of other nations." The example of their new commander was not likely to break the officers of the eighth infantry of their duelling propensities. In the course of General Pepe's memoirs, he refers to at least half a score encounters of the kind, in which he was a principal. With the exception of two, which occurred when he was only seventeen, and of his final one—as far as we are informed—with General Carascosa, fought in England, in 1823, these single combats were invariably with foreigners, with whom the general seems to have been very unenduring. Not that provocation was wanting on the part of the French, more than sufficient to rouse the ire of the meekest. The insolence of Napoleon's victorious legions exceeded all bounds; nor was it the less irritating for being often unintentional,—the result of a habit of gasconading, and of a settled conviction that they were superior in valour and military qualities to all the world besides. A certain General F. could find no higher praise for Pepe's battalions, when they had gallantly attacked and beaten a Spanish corps, than was conveyed in the declaration that they ought, in future, to be regarded, not as Neapolitans but as Frenchmen! A compliment which to patriotic Italian ears, sounded vastly like an insult. Attributing it to stupidity, Pepe did not resent the clumsy eulogium. But it was very rare that he allowed slights of that kind to pass unnoticed, nor could he always restrain his disgust and impatience at the fulsome praise he heard lavished upon Napoleon. The officers who had gained rank and wealth under the French emperor, exalted him above all the heroes of antiquity, and breathed fire and flames when their Italian comrades supported the superior claims to immortality, of an Alexander, a Hannibal, or a Caesar. "I believe Colonel Pepe loves neither Napoleon nor the French!" angrily exclaimed a French general during one of these discussions. "I replied instantly, that I was serving in the army of Arragon, but that I made no parade of my affections." Words like these were, of course, neither unheeded nor forgotten, and were little likely to push their utterer upwards on the ladder of promotion. But at no period of his life did General Pepe trust to courtier-like qualities for the advancement which he well knew how to conquer at point of sword.

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