Chapter III: Part 3

It was suggested by the three peers, that the old rule had no better foundation than the indolence, slovenliness, and negligence of practitioners, whom the salutary stringency of the new rule would stimulate into superior energy and activity. We cannot help regarding this notion, however--for the preceding, among many other reasons--as quite unfounded, and perhaps arising out of a hasty glance at the alterations recently introduced into _civil_ pleadings and practice. But observe, it required _an act of Parliament_ to effect these alterations, (stat. 3 and 4 Will. IV. c. 42,) the very first section reciting the "_doubts which might arise as to the power of the judges to make such alterations without the authority of Parliament_;" and yet the state of the laws calling for such potent interference was in an incomparably more defective and mischievous state than is imputed to the present criminal law. Then, again, any practical man will see in a moment, that the strictness of the new system of civil pleading, which to this moment occasions not infrequently a grievous failure of justice, with all the ample opportunities afforded for deliberate examination and preparation of the pleadings, cannot be safely applied to criminal law for many reasons, principally because it rarely admits of that previous deliberation in drawing the indictment, which must be based upon the often inaccurate statement of facts supplied by the depositions; and because a defect in them is, generally speaking, irremediable and fatal, and crime goes unpunished. If the new rule is to be really acted upon in future, we must, in some way or other, alter the whole machinery of the criminal law: but how to do so, without seriously interfering with the liberty of the subject, we know not.

We affirm, therefore, that the old rule--viz. that one good count would support a general verdict and judgment, though the indictment contained bad ones also--was a beneficial rule, calculated to obviate _inevitable_ difficulties; and its policy was so transparent to all the great intellects which have, both as judges or counsel, been for so long a series of years concerned in criminal cases, that no one ever thought of questioning it. The supposition of the three peers is one not very flattering to the distinguished predecessors, with the great Lord Mansfield at their head--all of whom it charges with gross negligence, ignorance, and, in plain words, stupidity--in overlooking, from time to time, a point so patent and glaring. The Lord Chancellor's answer to their argument is triumphant; and we refer the reader to it.[24] We respectfully and firmly enter our protest against Lord Denman's mode of getting rid of the efficacy of a custom or practice which has been so long observed by the profession; and regard it as one calculated to sap the foundations of the common law of the land. An opinion, a practice which has stood its ground for so long a series of years _unchallenged_, amidst incessant provocation to challenge it--and that, too, in the case of men of such vigilant astuteness, learning, and determination as have long characterized the English Bench and Bar--rest upon as solid grounds as are conceivable, and warrants it subversion only after profound consideration, and _repeated evidence of its mischievous operation_. Was any such evidence offered in the argument at the Bar of the House of Lords, of persons who had suffered either a kind or a degree of punishment not warranted by law? None: but several cases were put in which--in spite of past experience to the contrary--inconvenience and injustice _might possibly_ be conceived to occur hereafter!

What, then, led to this error--for error we must call it? Let us candidly express our opinion that the three peers were fairly "_overpowered_"--to adopt the frank acknowledgment of one of the most distinguished among them--by the plausible fallacies urged upon them, with such unprecedented pertinacity and ingenuity, by the traversers' counsel. They have been influenced by certain disturbing forces, against which they ought to have been vigilantly on their guard, and which we shall now venture to specify, as having occasioned their _forgetfulness of the true province of a court of error_--of the functions and duties of the members of such a court. A COURT OF ERROR occupies a high, but necessarily a very limited, sphere of action. Their observations and movements are restricted to the examination of a single document, viz. the record, which they are to scrutinize, as closely as possible, without regard to any of the incidents which may have attended the progress of the events narrated in it, if these incidents do not appear upon record: and they must be guided by general principles--not such as might properly regulate a certain special and particular case, but such as would guide them in all cases. And this is signified by the usual phrase, that they "must not travel out of the record." Now, we defy any one to read the judgments of the three peers, without detecting the undue influence which one extrinsic and utterly inadmissible fact has had upon their minds; viz. the fact, that the court below had actually _affirmed_ the validity of the two bad counts. They speak of its being "_against notorious facts_"--against "_common probabilities_," a "palpably incredible fiction"--to conclude from the language of the record, that the "offences" there mentioned did not include the pseudo offences contained in the sixth and seventh counts. In this particular case, it _did_ undoubtedly happen, in point of fact, that the court below decided these counts to be valid counts: but the court of error can take no cognisance whatever of extrinsic facts. _Their_ only source of information--_their_ only means of knowledge, is _the record_--beyond the four corners of which they have no power, no authority, to cast a single glance; and within which are contained all the materials upon which, by law, the judges of a court of error can adjudicate and decide. The Court, in the present case, ought thus to have contemplated the record in the abstract--and with reference to the _balance of possibilities_ in such cases, that the court below had affirmed, or condemned the vicious counts: which very balance of possibilities shows the impropriety of being influenced by speculations based on matters _dehors_ the record. However numerous and mischievous may have been the errors committed by the inferior court, _a court of error_ can take no cognisance of them, if they do not appear specifically and positively upon the record, however valid may be the claim which these errors may notoriously prefer _to the interference of the executive_. Consider what a very serious thing it is--what a shock to the public confidence in the administration of justice--to reverse a judgment pronounced after due deliberation, and under the gravest responsibilities, by a court of justice! The law and constitution are properly very tender in the exercise of such a perilous power, and have limited it to the case of "MANIFEST" error--that is, not the vehement, the immense _probability_ that there has been error--but the CERTAINTY of such error _necessarily and exclusively appearing from the record itself_. To act upon speculation, instead of certainty, in these cases, is dangerous to the last degree, and subversive of some of the fundamental principles of English jurisprudence. "Judgment may be reversed in a criminal case by writ of error," says Blackstone, "for NOTORIOUS (_i. e._ palpable, manifest, patent) mistakes in the judgment, as when a man is found guilty of PERJURY, (_i. e._ of a misdemeanour,) and RECEIVES THE JUDGMENT OF FELONY." This is the true doctrine; and we submit that it demonstrates the error which has been committed in the present instance. Let us illustrate our case by an example. Suppose a man found guilty under an indictment containing two counts, A and B. To the offence in count A, the legislature has annexed one punishment only, viz. _transportation_; to that in count B, _imprisonment_. The court awards sentence of transportation; and, on a writ of error being brought, the court above pronounces count A to be bad. Here it appears INEVITABLY and "manifestly" _from the record_, that there has been error; there is no escaping from it; and consequently judgment _must_ be reversed. So where the judgment is the infliction of punishment "for his offen_ces_" aforesaid: there being only two offences charged, one of which is contained in a bad count, containing therefore no "_offence_" at all. Apply this principle to the present case. Does this record, in sentencing the defendant "for his offences aforesaid," _conclusively_ and _necessarily_ show that the court regarded the sixth and seventh counts as containing "offences," and awarded punishment in respect of them? We unhesitatingly deny it. The merest tyro can see that it is _possible_--and, if so, where is the NECESSARY error?--that the judges excluded the vicious counts from their consideration; that they knew the law, and could discern what were and what were not "offences;" and annexed punishment to only true "_offences_" in the eye of the law. The word "offence" is a term of art, and is here used in its strictest technical sense. What is that sense? It is thus defined by an accurate writer on law: "an _offence_ is an act committed _against a law_, or omitted _when the law requires it_, and punishable by it."[25] This word is, then, properly used in the record--in its purely technical sense. It can have no other meaning; and an indictment cannot, with great deference to Mr Baron Parke,[26] contain an "offence" which is not "legally described in it;" that is, unless any act charged against the defendant be shown upon the face of the indictment to be a breach of the law, no "_offence_," as regards that act, is contained in or alleged by the indictment. The House of Lords, therefore, has exceeded the narrow province and limited authority of a _court of error_, or has presumed, upon illegal and insufficient grounds, that the Irish judges did not know which were, and which were not "_offences_," and that they did, in fact, consider those to be offences which were not, although the record contains matter to satisfy the allegation to the letter--viz. a _plurality_ of real "offences." Where is Lord Campbell's authority for declaring this judgment "_clearly_ erroneous in awarding punishment for charges which are _not offences in point of law_?" Or Lord Cottenham's, for saying that "the record states that the judgment was _upon all the counts, bad as well as good_?" They have none whatever; their assertions appear to us, with all due deference and respect, purely arbitrary, and gratuitous fallacies; they do violence to legal language--to the language of the record, and foist upon it a ridiculous and false interpretation. We admit, with Lord Cottenham, that "where the sentence is of a nature applicable _only_ to the bad counts," it is incurably vicious, and judgment must be reversed--it is the very case which we put above; but how does that appear in the judgment under consideration? Not at all. The two cases are totally different.

And this brings us to another palpable fallacy--another glaring and serious error into which we cannot help thinking the House of Lords has fallen, and which is abundantly evidenced by their judgment: viz. that a court of error has any concern whatever with, or can draw any inference whatever from, the AMOUNT of punishment. The reasoning of the judges is here perfectly conclusive. "If a sentence be OF THE KIND which the law allows, the _degree_ of it is not within the competence of a court of error. If a fine be an appropriate part of the sentence of a court below, the excess of it is no ground of error. What possible line can be drawn as to the reasonableness and excess, so as to affect it with illegality? It is obvious there can be none. If in _this_ case, the sentence had been _transportation_, the sentence would have been _illegal_: Why? Because not of _the kind_ authorized by law in such a case." Any presumption, therefore, made by a court of error, from the _amount_ of punishment awarded, as to which of the counts had been taken into consideration by the judges in giving their judgment, is manifestly based upon insufficient and illegal grounds. Can these principles have been duly pondered by the lords? We fear not. Look at Lord Cottenham's supposition of two counts for libel: one for a very malignant one, the other for one comparatively innocuous; and a sentence of heavy fine and imprisonment passed, evidently in respect of the malignant libel, which a court of error decides to be no libel at all. Lord Cottenham appears to rely greatly on this supposed case; but is it not perfectly clear, that it is not a case of error _on the record_--and therefore totally inapplicable to the case which he had to consider? The defendant would have certainly sustained an injury in that case; Where is the remedy? There is _no legal_ remedy, any more than there is when a man has been wrongfully _acquitted_ of a manifestly well-proved crime, or unjustly convicted of a felony. The mercy, or more properly the sense of _justice_ entertained by the _executive_, must be appealed to in either case; such power of interposition having, in the imperfection of human institutions, been wisely reserved to the supreme power to afford redress in all cases where the LAW cannot. Lord Cottenham's reasoning appears to us, in short, based upon two fallacies--a _petitio principii_, in _assuming_ that judgment was entered upon all the counts; the _question_ being, _was_ it so entered? The other is, that a court of error is competent to infer, from the _amount_ of punishment, that a defendant has been sentenced upon bad counts. Again: the three peers admit, that if a sole count contain a quantity of aggravating, but really "_irrelevant stuff_" (to adopt Lord Denman's expression,) it will not prejudice the judgment, provided the count also contain matter which will legally support that judgment. Why should the judges be given credit for being able to discard from consideration these legally extrinsic matters in a single count, and not also, by the exercise of the very same discretion, be able to discard, in considering the record, irrelevant and insufficient counts, such as in the eye of the law have no existence, are mere nonentities?

For these, and many other reasons which might be assigned, had we not already exceeded our limits, we have, after a close and a candid study of the judgments delivered by the three peers, and the convincing, the conclusive judgments of the great majority of the judges, come, without hesitation, to the conclusion, that the Lords have not merely decided incorrectly, but have precipitately removed a chief corner-stone from the fabric of our criminal law, and have incurred a very grave responsibility in so doing. We cannot help thinking, that they have forgotten the fundamental distinction which our constitution makes between "jus _dare_" and "jus _dicere_." _Jus dederunt, non jus dixerunt_--an error, however, easily to be accounted for, by a reference to their double capacity, and the confusion it occasions between their judicial and legislative functions. We view with grave apprehension the power exercised by three members of the House of Lords, of overturning so well-established a rule and custom as that attested to them by the judges. What security have we for the integrity of our common law? In the face of the judges' decisions, how decorous and dignified would have been the conduct of the House of Lords in giving way, even if they had differed from the judges; lamenting that such _was_ the law of the land, and resolving to try and persuade the legislature to alter it, as has often been done. Witness the statute of 1 and 2 Geo. IV. c. 78, passed in consequence of the decision of the House of Lords in _Rowe_ v. _Young_, 2 Brod. and Bing. 165. The House of Commons has resented such interference with the laws by the House of Lords; who, in the case of _Reeve_ v. _Young_, (1 Salkeld, 227,) "_moved by the hardship of the case_, reversed the judgments of the courts below, contrary to the opinion of all the judges." But the House of Commons, "_in reproof of this assumption of legislative authority in the Lords_," immediately brought in the 10 and 11 Will. III. c. 16, which passed into a statute.[27] May we venture to suggest that the elaborate, and long, and deeply-considered opinions of the judges of the land, who had been summoned by the Lords to advise them, were worthy of more than the single day, or day and a half's examination which they received before they were so peremptorily pronounced to be "_clearly_ erroneous?" And may we, with no little pain, suggest to Lord Campbell, that the array of _Gamaliels_ at whose feet he had _sate_ during his whole life--whose feet he had indeed so very recently quitted--whose integrity, whose profound learning, whose sagacity, none has had larger experience of than he--are entitled to look at his cavalier-like treatment of their best services, with a feeling stronger than that of mere surprise? In concluding this long article--in expressing our conviction of the error of the Lords--we feel one consolation at all events--that if we err, we err in good company; and that we are not conscious of having transgressed the limits of legitimate discussion, in exercising as undoubted a right of its kind, as these three peers exercised in branding so overwhelming a majority of the judges of the land with the imputation of ignorance of those laws which all their lives had been spent in administering. The very existence of the ancient common law of the land is put in jeopardy by such a procedure as that which we have been discussing; and our honest conviction, however erroneous, that such is the case, will suffice to excuse the freedom of our strictures; if, indeed, we require an excuse for echoing the stern declaration of on forefathers--_Nolumus leges Angliæ mutari_.

As to him who has reaped the benefit of this lamentable miscarriage--Mr O'Connell--the law of the land has nevertheless been vindicated, and the stability of the empire secured, to a far greater extent than he is willing to acknowledge. Agitation he must continue; he _must_ play out his base and sordid game. But his powers of mischief are manifestly and seriously crippled; and we quit him with the language addressed by Pope to a mean one of _his_ day--

"Uncaged, then let the harmless monster rage--
Secure in dulness, madness, want, and age!"

FOOTNOTES:

[1] See the Judgment of the Judges, ordered by the House of Lords to be printed, (and from which the quotations in this article have been made,) read to the House of Lords by Lord Chief-Justice Tindal, on the 2d September 1844.

[2] State Prosecutions, pp. 9, 10. No. CCCXXXIX. Vol. LV.

[3] Blackstone's Commentaries, vol. i. p. 302.

[4] Several distinct offences may undoubtedly be included, in as many counts, in one indictment.

[5] Two of the defendants' (the two priests) names do not appear in the record of the verdict, as one of them (Tyrrell) died before the trial, and as to Tierney, the Attorney-General entered a _nolle prosequi_.

[6] _Comyn's Digest_, title _Pleader_, 3 B. 18.

[7] This is the proper expression. See _M'Queen's Practice of the House of Lords,_ p. 256. "They are summoned _for their advice in point of law_, and the greater dignity of the proceedings" of the Lords.--(_Blackst, Comm._ p. 167.)

[8] 1 _Blackstone's Commentaries,_ p. 69.

[9] Opinions of the Judges, &c.--(Pp. 1-3.)

[10] Opinions of the Judges, p. 23.

[11] 3 _Blackstone's Commentaries_, p. 395.

[12] We quote from the edition of Lord Denman's judgment, sanctioned by himself, and edited by D. Leahy, Esq., (one of the counsel in the cause.)

[13] A "_demurrer_" is the mode by which any pleading, civil or criminal, is denied to be (whether in form or substance) sufficient in point of _law_; and a _plea_ is the mode by which is denied the _truth_ of the _facts_ which the pleading alleges.

[14] Opinions of the Judges, p. 19.

[15] Vol. I., pp. 68-9.

[16] Williams v. Germaine, 7 Bar. and Cress. 476.

[17] Opinions of the Judges, p. 17.

[18] Judgment, (by Leahy,) p. 36.

[19] Opinions of the Judges, p. 28.

[20] Judgment, &c., p. 43.

[21] Opinions of the Judges, p. 28.

[22] Lord Denman's judgment.

[23] Ditto.

[24] Ante.

[25] West's Symbolography, and Jacob's and Tomlin's Law.

[26] Opinions of the Judges, p. 29.

[27] 2 Bla. Comm. 169; and see Mr Christian's Note.

MY COLLEGE FRIENDS.

No. I

JOHN BROWN.

Did you ever happen to know a man who spent a whole Christmas vacation in Oxford, and survived it? I did. And this is how it came to pass.

"Frank," said the governor one evening after dinner, when the conversation had turned upon my approaching return to college, and the ticklish question of supplies had been disposed of--"when the deuce do you mean to go up for your degree? I have a notion this next term is your fifteenth, young man?"

"Why no, sir--that is, not exactly; you know"----

"Oh! true--I forgot that confounded rustication business. Well, it's your fourteenth at all events, and I think that's enough."

"Well, sir, I was thinking to have a shy at it after Christmas."

"Shy at it! You've always been _shying_ at it, I think. I hope it mayn't end in a _bolt_, Master Frank!"

I laughed dutifully at the paternal wit, and promised to go to work in earnest the moment I reached Oxford.

This was a resolution announced periodically like the ballot question, and with much the same result. So the governor only shook his head, yawned, looked at the bottle, which stood between us nearly empty, and prepared apparently for an adjournment.

"I'll tell you what, sir," said I, emptying what remained in the decanter into my glass, and swallowing it with a desperate energy befitting the occasion, "I'll stay up the Christmas vacation and read."

"The deuce will you! Why, Frank," continued the governor, sorely puzzled, "you know your cousins are coming here to spend the Christmas, and I thought we should all make a merry party. Why can't you read a little at home? You can get up something earlier, you know--much better for your health--and have two hours or so clear before breakfast--no time like the morning for reading--and then have all the day to yourself afterwards. Eh, why not, Frank?"

"If you'll allow me to ring for another bottle of this Madeira, sir, (I declare I think it's better than our senior common-room have, and they don't consider theirs small-beer,) I'll tell you.----I never could read at home, sir; it's not in the nature of things."

"I doubt whether it's much in your nature to read any where, Frank: I confess I don't see much signs of it when you are here."

"In the first place, sir, I should never have a room to myself."

"Why, there's the library for you all day long, Frank; I'm sure I don't trouble it much."

"Why, sir, in these days, if there are any young ladies in the house, they take to the library as a matter of course: it's the regular place for love-making: mammas don't follow them into the company of folios and quartos while there are three volumes of the last novel on the drawing-room table; and the atmosphere is sentimentality itself; they mark favourite passages, and sigh illustrations."

"Precious dusty work, Frank, flirtations among my book-shelves must be; but I suppose the girls don't go much beyond the bindings: they don't expect to get husbands by being blue."

"Not exactly, sir; reviews and title-pages constitute a good part of modern literary acquirements. But upon my honour, sir, one hears young ladies now talk of nothing but architecture and divinity. Botany is quite gone out; and music, unless there's a twang of Papistry about it, is generally voted a bore. In my younger days--(really, sir, you needn't laugh, for I haven't had a love affair these two years)--in my younger days, when one talked about similarity of tastes and so forth, it meant that both parties loved moonlight, hated quadrilles, adored Moore's Melodies, and were learning German; now, nine girls out of ten have a passion for speculative divinity and social regeneration."

"Ay, one sort of nonsense does just as well for them as another: your cousin Sophy bothers me to build an Elizabethan pigsty, and wanted her poor mother to dance with the butler in the servants' hall last Christmas, when the fellow was as drunk as an owl: I hope it mayn't end in her figuring off herself with the footman; for Sophy is rather a pet of mine, and a right-down English girl after all. But, Frank, if you can't read in peace in the library, you surely could have a room fitted up for yourself up stairs; and you shall have the great reading-desk, with lights, that was your grandfather's, that stands in my little sanctum; (he made more use of it, poor man, than I do;) or I don't know but what I might spare you the little room itself, if it would suit you--eh?"

"Oh, my dear father! I wouldn't disturb you on any account," said I, rather alarmed at the extent of my worthy parent's liberality in the cause, and fearing it might end in the offer of the whole family to pack themselves in the attics, and leave me a first floor to myself--calculating, too, the amount of hard reading commensurate with such imposing preparations. "What would become of the justice business of the parish, sir, if we shut up your tribunal? I don't suppose my mother would like to have the constables and the illegitimates introduced either into the drawing-room or the kitchen," (this was, as I meant it to be, a poser; if Mr Hawthorne senior had a hobby, it was his magisterial authority.) "The fact is, that at home, up-stairs or down-stairs, I couldn't read. I should have not only my own idleness, but the various idlenesses of the whole family combined, to fight against. My sisters would be knocking at the door every half hour, if only to ask how I was getting on: Bob would tease me to come out skating, and Charles would start me perpetually after wild-ducks or woodcocks. And you yourself, sir, if I am not much mistaken, would think it odd if I didn't take a ride with you as usual after breakfast. Then one can't be expected to crawl about one's books by candlelight on a winter's morning; and after a six o'clock dinner who can read? After tea you know, sir, my mother always likes a rubber when I'm at home; and if you are going to have those girls, Jane and Sophy, down this Christmas"----

"Ah! well--I see, Frank; I'm afraid it's a hopeless case. Perhaps you had better stay up at Oxford after all; you won't have much to disturb you there, I suppose. If you don't get moped to death, I certainly don't see what's to hinder your reading. You don't feel inclined to try North Wales in the winter, I suppose, eh?"

"No, sir," said I, swallowing a last glass of Madeira at a gulp, and rising, to cut short a conversation which was beginning to take rather an awkward turn--"No, sir, not exactly."

"Why, I don't know, Frank: why not? you'd find the climate cooler, you know," persevered the governor, as he followed me into the drawing-room.

So in Oxford it was settled that I should stay; a tolerable character for the last term or two, and the notorious fact that I was going up at Easter, ostensibly for a class, obtained me the necessary permission: strange that, in the University, one should require leave to read! My friends, John Brown and Harry Chesterton, were to stay up too; and we promised ourselves some hours of hard work, and many merry ones together. The vice-principal and one of the juniors, the only fellows that would be in residence, were both gentlemen, and always treated the under-graduates as such; we should get rid of the eternal rounds of beef and legs of mutton that figured at the commoners' table in hall; there would be no morning chapel; and altogether, having had nearly enough of the noisy gayety of a full term, we looked forward to the novelty of a few quiet weeks in college with a degree of pleasure which surprised even ourselves.

But alas! under-graduates are but mortals, and subject to somewhat more than the ordinary uncertainties of mortal life. It wanted but a week to the end of term; all our plans were settled. Brown was to migrate from his own rooms in "Purgatory"--as we used to call the little dark back quadrangle, where, from sheer laziness, which made him think moving a bore, he had remained ever since his first location there as a freshman, up three pair of stairs; so that, when his intimate friends wished to ascertain if he was at home, we used to throw a stone through the window--and was to take up his abode in "Elysium," where he would be Chesterton's next-door neighbour, and in the same number as myself. We were to have a quiet breakfast in each others' rooms in turn every morning; no gross repast of beef-steaks and "spread-eagle" fowls, but a slight relish of anchovy toast, potted shrimps, or something equally ethereal; and the _chasse-café_ limited to one cigar and no bottled porter. It was cruel to interfere with such unexceptionable arrangements; but a college, though it have a head, has no heart worth mentioning; and, in an evil hour, they rusticated John Brown. At least they forbade his staying up the Christmas vacation; and, for the credit of my friend's character, let me explain. Why John Brown should have been a person particularly distasteful to the fellows of ---- College, was a matter at first sight rather hard to understand. He was not what is called a rowing man; was never found drunk in the quad, or asleep at the hall lecture; never sported a pink, or drove a team; was not known to have been concerned in any of the remarkable larks which occurred in our times; was neither an agent in the Plague of Frogs, nor an actor in the private theatricals; was not a member of the Agricultural Society, which made the remarkable experiments with clover and ryegrass in the college quadrangle; had no talent for midnight howling, sang very small in a chorus, capped all the fellows diligently, and paid his battels to the minute. He was known to have asked twice for the key of the library, put down his name for the senior tutor's pet lecture in "Cornelius Nepos," bought the principal's sermon on the "Via Media," and was suspected of having tried to read it. He was not clever enough to sneer at the tutors, or stupid enough to disgust them. He was too sleepy to keep late hours, too fat to pull in the boat, too stingy to give supper-parties. How on earth came the fellows not to like John Brown? "A most respectable man," the principal always said he was. "Sir," said he to his anxious father, when, at the end of his second term, he took the opportunity of a professional visit to Oxford to call to know how the hope of the Browns was progressing--"Sir, I consider your son a most respectable person: I may say a most respectable person;" and as the principal had taken wine with him once at dinner, and bowed to him at collections, and read "Mr John Brown" twice upon a card at the end and beginning of term, and thus had every opportunity of forming an opinion, and expressed that opinion oracularly, in a Johnsonian fashion, Governor Brown was satisfied. How did the fellows come not to like John Brown?--pronounced "most respectable" by the principal--declared by his scout to be "the quietest gentleman as he ever a knowed;" admitted by the under-graduates to be "a monstrous good fellow, but rather slow;" how came John Brown to fail in recommending himself to the favour of his pastors and masters--the dean and tutors of ----? Why, in the first place, John Brown, the elder, was a wine-merchant; a well-educated man, a well-behaved man; but still a wine-merchant. Now the dean's father was--I beg his pardon, had been--a linen-draper; neither well-educated nor well behaved; in short, an unmitigated linen-draper. Consequently the dean's adoration of the aristocracy was excessive. There are few such thorough tuft-hunters as your genuine Oxford Don; the man who, without family or station in society, often without any further general education and knowledge of the world than is to be found at a country grammar-school, is suddenly, upon the strength of some acquaintance with Latin and Greek, or quite as often, from having first seen the light in some fortunately endowed county, elevated to the dignity of a fellowship, and permitted to take rank with gentlemen. The "high table" in hall, the Turkey carpet and violet cushioned chair in the common room, the obsequious attention of college servants, and the more unwilling "capping" of the under-graduates, to such a man are real luxuries, and the relish with which he enjoys them is deep and strong. And if he have but the luck to immortalize himself by holding some University office, to strut through his year of misrule as proctor, or even as his humble "pro," then does he at once emerge from the obscurity of the family annals a being of a higher sphere. And when there comes up to commemoration a waddling old lady, and two thin sticks of virginity, who horrify the college butler by calling the vice-principal "Dick," no wonder that they return to the select society of their native town with an impression, that though Oxford was a very fine place, and they had real champagne, and wax candles, and every thing quite genteel, and dear Richard was very kind, still they did think he was grown rather proud, as he never once asked after his old acquaintances the Smiths, and didn't like to be teased about his old flame Mary. No wonder that in the visits, few and far between, which, during the long vacation, the pompous B.D. pays to his humble relations in the country, (when he has exhausted the invitations and the patience of his more aristocratic friends,) they do not find a trace remaining of the vulgar boy, who, some twelve years ago, quitted the seat of the provincial muses to push his fortunes in the University of Oxford. In vain does his uncle give up his after-dinner pipe, and in place of the accustomed Hollands and water, astonish the dusty decanter with port of an unknown vintage in honour of his illustrious nephew; in vain does the good old lady afore-mentioned, the unworthy mother of so bright a son, quit the instruction of pious Mr Jabez Jenkins, the "Independent" minister, and turn orthodox and high-church for the nonce, when her dearly beloved Richard "officiates" for the rev. the vicar; no ties of home or kindred, no memories of boyhood, no glow of early recollections, touch the case-hardened parasite of college growth; and when he has banished his younger brother to Australia, under pretext of making his fortune, married both his sisters, and erected a cheap monument to the linen-draper's widow as the "relict of the late Thomas Thompson, _Esquire_," he waits in peaceful expectation of a college living, with the consciousness of having done his duty by his relations, and delivered himself from a drag upon his new career. I do not mean to set too high a value on gentle birth, or to limit nobility of character by that of blood; I believe my tailor to be one of nature's gentlemen, (he never duns,) and I know my next neighbour, Sir John, thirteenth baronet as he is, to possess the soul of a huckster, because he sells his fruit and game: still these are the exceptions, not the rule; and there are few cases of men rising from low origin--rising, that is, from circumstances, not from ability--not the architects, but the creations of their own fortunes, (for that makes all the difference)--who do not carry with them, through all the gradations of their advancement, the plebeian instincts, while they forget, perhaps, the homely virtues of the class from which they spring. There is a nobility of birth, seldom to be counterfeited or mistaken, wholly irrespective of the rank and wealth which are either its graceful accompaniments or its insufficient substitutes; fostered and strengthened by early habits and education, but none the less originally innate--as much an endowment from heaven as beauty, strength, or talent, and more valuable than all. Many men have the tact to adapt themselves to the station and the society to which they have risen, however much above their own level; they acquire the habits and the tastes, seldom the feelings, of a gentleman. They act the character well; it is carefully studied, and on the whole well sustained; it is a correct and painstaking performance, and the points tell distinctly; but there is throughout that indirect appeal to the audience which marks it to be only acting. They are more studiously aristocratic than the aristocracy, and have a horror of vulgarity which is in itself essentially vulgar.

And such a man was the dean of ----. On the philosophic principle of hating all to whom we are under obligations, if there was any thing he cordially detested, it was trade. His constant aim was to forget his unfortunate origin himself, if possible to lead others who knew him to forget it, and to keep strangers from knowing it at all. And as he shrank from every shape and sound plebeian, so he industriously cultivated every opening to "good society." There was not a member of his own college, graduate or under-graduate, of any pretensions to family, who could not speak from experience of the dean's capital dinners, and his invariable urbanity. No young honourable, or tenth cousin to an honourable, ever got into a row, that he had not cause to bless the dean's good offices for getting him out. And if some of the old stagers contented themselves with eating his dinners, and returning them in the proportion of one to five, the unsophisticated gratitude of youth, less cunning in the ways of the world, declared unhesitatingly, in its own idiomatic language, "that old Hodgett was a regular brick, and gave very beany feeds." And so his fame travelled far beyond his own collegiate walls, and out-college honourables and gentlemen-commoners were content to make the acquaintance, and eat the dinners that were so freely offered. And as the dean had really some cleverness, and "a well-assorted selection" of anecdotes and illustrations "from the best markets," (as his worthy father would have advertised it,) and could fill the chair at his own entertainments with ease if not with gracefulness, and moreover was not close with his purse-strings, and could always be reckoned safe for a L.20 note if a dun was troublesome, (well knowing that even under-graduates make exceptions in favour of debts of honour,) he became, among his younger friends especially, a very popular man. And when those who had enjoyed his good fare, and profited by his friendly offices with duns and proctors, found that, after all, he was "nobody," all they said was, that it was a pity, and that he was a monstrous good fellow none the less. And one invited him to spend the Christmas with him down at the governor's in Kent, where there was to be a regular houseful, and merry-making of all sorts, and another would have him into Norfolk in September for the shooting--(the dean never shot, but wisely said nothing about it until he got into good quarters, when he left his younger friends to beat the stubbles, while he walked or drove with Lady Mary and Lady Emily, and eat the partridges;)--so that on the whole he felt himself rather an ill-used individual if there was a week of the vacation for which he had not an invite. If such a rare and undesirable exception did happen, seldom indeed did he bestow himself, even for a day or two, upon his mother and sisters at Nottingham; and never did he, by any oversight, permit a letter to be addressed to him there; if it could not conveniently bear the address of some of his titled entertainers, it was to meet him at his college, to which he usually retired to await, with sufficient discontent, an invitation, or the beginning of term; while he took pains to have it understood, that his temporary seclusion was hardly spared him from the hospitable importunities of those whom he delighted to call "his many friends," in order to attend to important business. Occasionally, indeed, it would happen that the natural sagacity of some old English gentleman, or the keen eye of an experienced courtier, would fathom at a glance the character of his son's invited guest, and treat him with a distant politeness which he could neither mistake nor get over; but, on the whole, his visits among his aristocratic entertainers were agreeable enough, and he was not a man to stick at an occasional trifle. His youthful _protégés_ were glad to be able to repay in the country many kind offices at Oxford, and to become patronizers in their turn; and the seniors redoubled, in the case of their son's friend, the hospitality and courtesy they would have readily shown to a stranger, and were not eager to scrutinize the motives which might have induced him to be civil to the hopeful stripling, whom, in their partial view, the whole university might well have delighted to honour.

In the eyes of such a man, John Brown was not likely, at first starting, to find much favour. Had he been a rich man, and sported the velvet cap and silk gown, the unhappy fact of his father's being in trade might have been winked at. If not in the front rank of the dean's friends he might have filled a vacant seat occasionally at his dinner-table, and been honoured with a friendly recognition in the quadrangle. At it was, he did not condescend to remember that such a man was on the college books. Happy ignorance, if only it could have lasted. But one unlucky morning a late supper party had decidedly thinned the attendance at the hall lecture; and Mr Hodgett, having been disappointed of an invitation to a very select dinner at the principal's, was in no very benignant humour, and "hauled up" the defaulters. Among them was one of the dean's pets--who, having done the same thing a dozen times before, was rather astonished at the summons--and the usually regular John Brown. What excuses the rest of the party made is immaterial. John, I believe, said nothing, beyond a remark as to his having been rarely absent. The result, however, was, that he and the rest got an imposition, which cost them half-a-guinea each to get done by the under-cook, (it was Greek _with_ the accents, which comes expensive,) while the Honourable Lumley Skeffington was dismissed with a jocular reproof, and an invitation to breakfast. Now, if Mr Skeffington had had the sense to have kept his own and his friend's counsel, this might have been all very well. But being a somewhat shallow-pated youth, and a freshman to boot, he thought it a very fine thing to talk about at his next wine-party, and boast that he could cut lecture and chapel when he pleased--the dean and he understood each other. Brown happened to be present; (for though not good company enough for the dean, he was for his betters; your _parvenu_ is far more exclusive in his society than your born gentleman;) he quietly enquired into the facts; and finding that what he had before been inclined to consider as undue severity in his own case, was positively an injustice compared with that of another, appreciating thoroughly the character of the party he had to deal with, and coupling the present with certain previous minor snubbings from the same quarter, he from that moment declared war.

Now, the Rev. Mr Hodgett, sedate and dignified as he was, had better have danced a hornpipe in his thinnest silks amongst a bed of stinging nettles, or have poked sticks into a wasp's nest, or amused himself with any other innocent recreation, than have made an enemy of John Brown. It was what he himself would have called a wrong move, and it played the deuce with his game. John was the very man who could annoy him, and he did. None of us knew he had so much ingenuity, or so much malice in his composition, until he commenced his hostilities against the dean. The fact was, he was more piqued, perhaps, than any other man in college would have been by so small a matter. Too sensible to be really ashamed of being the son of a man in trade, he was conscious, nevertheless, that it was in some sort a disadvantage to him, and that, descended as he was from an old and once knightly line, (his father had been an ill-used younger son,) he did not quite occupy his proper position in the world. His feeling of this made him sensitive to a fault; it led him rather to shun than to seek the society of his contemporaries; and much as he was esteemed by myself and others who knew him well, I will not say that he was a universal favourite. Men did not understand him: at that time of life (alas, why not always?) most of us are open and free-hearted; they did not relish his shy and reserved manner, his unwillingness to take the initiative in any social intercourse, his _exigéance_ to a certain extent of those forms which the freedom of college friendship is apt to neglect. "Why didn't you turn into my rooms the other night, when you came in from Oriel?" said I to him early in our acquaintance. "Hobbs says he told you I had some men to supper."--"You didn't ask me," was the quiet reply.--"I couldn't see you, or else I should; but you might have known I wanted you; don't serve me such a trick as that again, old fellow." But it let me into a secret of his character, and ever after that, I was as particular in my invitations as possible. Men thought him proud, and cold, and touchy, which he was not; and stingy, which he scorned to be, from his contempt for ostentation in any shape. The rarity of his wine-parties, and his never having other wines produced than port or sherry, he himself explained to me--"Men would say, it was easy for me to sport claret and champagne, when I could get them for nothing." But if an unthinking freshman broke out in praise of the said excellent port or sherry, (as indeed they might well be pardoned for doing, considering the quality of what they commonly imbibed,) he would say at once--"Yes, I believe it is good; I know my father considers it so, and it has been in bottle above twelve years." There was no shirking the question for a moment. And excellent wine he got for me from his father, at a moderate price, at his own offer. Hating then, as he did undisguisedly, the tuft-hunting and affectation of _haut-ton_, which was so foreign to his own nature, he felt, perhaps excusably, annoyed at their palpable existence and apparent success, in a man, whose station, as he said, ought to have kept him from meanness, if it could not give him dignity.

At all events, his method of retaliation--"taking down the dean"--as he called it was most systematic and persevering. He let the matter of the imposition pass over quietly; was for some months doubly attentive to all his college duties; carefully avoided all collision with his adversary; kept out of his way as much as he could; and whenever brought into contact with him, was as respectful as if he had been the Vice-chancellor. This had its effect: John began to rise in the dean's good graces; and when he called upon him in the usual course of etiquette, to mention that he should be absent the vacation of three days which intervenes between the two short terms, the meeting, on one side at least, was almost cordial. A day or two after his return, (he had been to visit a friend, he said,) we were in his rooms at breakfast together, when the dean's scout entered with his master's compliments to request Mr Brown's company to breakfast. Then it was that John's eyes dilated, and he rubbed his hands, as soon as the door was shut, with an excitement rather unusual.

"Do you know who breakfasts with the man to-morrow? Do you, Hawthorne?"

"Why, I had a message this morning," said I, "but I don't mean to go. I shall have a headach or something to-morrow. I have no notion of going there to eat my own bread and butter, and drink his very bad tea, and see a freshman swallow greasy ham and eggs, enough to turn the stomach of any one else; and then those Dons always make a point of asking me to meet a set of regular muffs that I don't know. The last time I went, there were only two reading-men in spectacles, perfect dummies, and that ass, young Medlicott, who talks about hunting, and I believe never crossed the back of anything higher than a donkey."

"You had better come to-morrow; perhaps you will have some fun."

"Why, who is going there, do you know?"

"I haven't a notion; but do come. I must go, and we will sit together, and I'll get the cook to send up a dish of deviled kidneys for you."

There was something in his eye as he said this which I could not make out, and it rather puzzled me to find him so willing to be of the party himself. However, he was an odd fellow, so I promised to go, and we parted; certainly with little anticipation on my part of what the "fun" was to be.

Nine o'clock the next day arrived, and punctual to the minute might be seen two freshmen, from opposite corners of the quadrangle, steering for the dean's rooms. Ten minutes afterwards, an interesting procession of coffee-pots and tin-covers warned me to finish my toilet; and following them up the staircase, I found a tolerably large party assembled.

"Just in time--just in time, Mr Hawthorne," said the dean, who appeared to be in high good-humour, "as my old pupil, Sir Charles Galston, used to say, (you don't know him, do you? he's your county man, too, I believe,)--as he always used to say, 'Gad, Hodgett, just in time to see the muffins break cover!' ha, ha! Take those tins off, Robert."

We sat down, and for some time every thing went on as slow as it usually does at breakfast parties. At length, taking advantage of a pause, after laughing his loudest at one of our host's stories, John Brown broke out with "How is Mrs Hodgett, sir?"

If Mrs Hodgett, instead of the dean's most respectable mother, had been his lawful wife, hitherto unacknowledged through fear of losing his fellowship, he could not have looked more thoroughly horrified. I myself was considerably taken aback; some of the other men, who knew the reverend gentleman's tenderness on the subject of his family connexions, picked their chicken-bones, and stirred their coffee with redoubled attention. John Brown and the two freshmen alone looked as cool as cucumbers.

"Eh? oh--h," stammered the party addressed, "quite well, thank you--quite well. Let me give you some of this--oh, it's all gone! We'll have some more; will one of you be kind enough to ring? My friend, Lord"----

"No more for me, thank you, sir, I beg," said John. "Have you heard from Mrs Hodgett since the vacation?"

"No--yes; oh dear, yes, several times!" (It was about five days back.) "She was quite well, thank you. In town at present, I believe. You were in town during the vacation, I think, Mr Wartnaby? Did you meet your uncle Sir Thomas there, or any of the family?"

"Sir T-T-Thom...." began young Wartnaby, who stammered terribly.

"I beg your pardon, sir," struck in John Brown, "are you sure Mrs Hodgett is in town? I saw her in Nottingham myself on Friday; I made my first acquaintance with her there, and a very charming old lady she is."

Mr Hodgett's confusion could only be rivaled by Mr Brown's perfect self-possession. I began to see the object of his kind enquiries; so, probably, did the victim himself. The other men who were present thought, I suppose, that it was only an unfortunate attempt of John's to make himself agreeable; and while some were amused by it, a more considerate friend kicked my shins in mistake for his, under the table.

"She certainly told me, sir, she should be going up to London in a few weeks, to purchase her winter stock, I think she said; but I did not understand that she was to be there now."