marred and lowered by foibles, by peculiarities, and eccentricities; and his own severe and penetrating mind has, no doubt, been frequently conscious of its frailties and imperfections; but his eye has ever, in the main, been looking onward and upward. Humanum est errare is an adage as old as the days of Terence.

"Envy doth merit as its shade pursue;" and Lord Brougham has been often reminded of his failings: those who soar aloft cannot hope to escape unscathed by the lightnings or unruffied by the storms which prevail in exalted regions. But it is pitiful to dwell on the minor imperfections of so great a character: who thinks of counting the dark spots on the plumage of the eagle, while he might admire its flight aloft? "I have seen," says Addison," in the works of a modern philosopher, a map of the spots on the sun." The detractors of Lord Brougham are the representatives of those, who, gazing on such spots, worshipped not the glorious luminary. The current, or, speaking more correctly, the gush of his public life has occasionally stolen into some strange creeks and into many a winding bay; but flow whither it might, every field which it touched was refreshed and gladdened, its verdure was left more vivid, its soil more fertilized, its fruits more wholesome and sweet. We have endeavoured to follow the great body of the stream without pausing to mark all the eddies which it formed as it swept along in its majestic course.

But this is not all. The strong, stern intellectual faculties of Lord Brougham were softened by a frank, generous, and affectionate nature; so that his indignation, when kindled by party heats, died rapidly away, and even the gall of his sarcasm was not unfrequently mingled with and mellowed by the kindly feelings of his heart. His friendship, constant and sincere, found vent not in empty phrases but in substantial acts of beneficence: and, accordingly, he has with unaffected grace added materially to the comforts of many by favours which his knowledge of passing events and of the state of parties suggested to his mind, and which his personal and political influence enabled him to bestow.

To his simplicity of manners as much as to his solid attain

ments is he indebted for being the favourite of the social circle. Scarcely have the minds of his companions apprehended his statement of some profound philosophical truth than their fancy is amused by anecdote, by a stroke of pungent wit or broad humour. The horror with which he recoils from stiff, pedantic affectation is so strong that he has sometimes been betrayed into bluntness of manner and of speech.

2

The flatterers who would raise Lord Brougham to the level of Bacon1 or Newton can be only very superficially acquainted with the intellectual grasp of these greatest of sages, who stand unparalleled in respect of philosophic inventive genius; the one in mental and moral science, the other in physical inquiry. They created the instruments and formulæ by means of which their wondrous triumphs were achieved; and each in his sphere "dwells like a star apart." But the genius of Brougham caught the rays which came streaming from these two great orbs of light: he is one of the worthiest living and loving sons of these fathers of philosophy, one of the most sincere, cheerful, and enlightened votaries of these "priests of nature." Let his name be engraved within an humbler though not less hallowed temple. When the whispers of personal jealousies have been hushed, and the jarring sounds of party-spirit have died away, the name of Henry, Lord Brougham and Vaux-the affectionate relative and the steadfast friend, the ardent energetic orator, the fearless advocate, and independent unpurchaseable statesman, the scholar, the philosopher, the patriot, and the philanthropist -cannot fail to be remembered and revered; and, above all, he may rest assured that, transmitting to posterity a civil renown as imperishable as the language in which his genius gave form

"Ingenium et largo procurrens flumine linguæ,

Philosophi pariter Juridicique decus."

2 The reader, no doubt, recalls the exquisite lines of one of Lord Brougham's early friends, Thomas Campbell:

So Newton, Priest of Nature, shines afar,

Scans the wide world and numbers every star:
Wilt thou with him mysterious rites apply,
And watch the shrine with wonder-beaming eye?
Yes! thou shalt mark with magic art profound
The speed of light, the circling march of sound."
et cet., et cet.

to thought, or as the national institutions which he has throughout a long and eminently useful life laboured to beautify and perpetuate, the children of future generations shall throng to greet in fancy his unforgotten shade, and, bowing down with grateful hearts, shall offer willing homage at his shrine.

ART. V.-THE TRANSMISSION OF THE
EXECUTORSHIP.

TH

HE office of an executor, as our readers are aware, is not personal merely, but, by operation of law, is transmissible to his own executor, and through him to others, in one undying chain of obligation, with no limitation or end but such as the infraction of technical rules shall occasion. This principle of law imposes upon third parties the assumption and performance of the trusts of testators to whose persons they have been perfect strangers, and whose wishes and directions they would probably never have undertaken if they had had the choice of a refusal. In the usual course of things a man's office dies with him, whether he be a postman or a prime-minister, and the executorship alone furnishes an exception to this salutary and reasonable rule.

The text-books, while they state the principle of law, do not trouble themselves to explain upon what foundation it is based, or to illustrate either its practical bearing or its theoretical worth. They do not comment upon its hardship, or expose its absurdity. Even Swinburne, whose racy old English style reflects an honest heart, and sterling good sense, does no more than caution his readers against the dangers which they may incur in so simple an act as taking probate. This continued neglect is the more surprising, when we find that though many salutary innovations in testamentary law and its practice have been constantly proposed, this startling piece of medieval juris

prudence seems doomed to be ever overlooked. We, however, are not such rigid legal conservatives as to desire to observe the same silence; for we think that the subject is one of such grave importance as to deserve, in a very high degree, that attention which it has hitherto so unaccountably escaped. To make ourselves as intelligible as we may wish in our following observations, we shall be compelled to go back to an early epoch, and to commence at that period in the history of Roman Law when the word "executor" was legally unknown.

This now all-important word is pronounced by Lord Hardwicke, in the plenitude of his learning, to be a "barbarous term;" and so it may be, if the state of a language is never to be changed, or if new expressions are never to arise to symbolize new facts and phases of life and its occupations. But although a quarrel about the beauty of a word is generally trivial, there may arise occasionally, even in mere verbal disquisitions, questions of weight and interest, if the endeavour be made with labour and sincerity to trace historically the conditions under which an expression has been formed, as they have gradually and successively evolved themselves into the maturity of a distinct and novel institution. Under such circumstances, the history of a small word may be the history of a great fact, and of a revolution in the public mind and habits. And thus, while we apparently gain only a lesson in philology, we may, in reality, have demonstrated the objects and the limits of an institution. This will be our warrant for the ensuing prolixity. We will apply this method to the treatment of the word "executor," hoping to show, in the result, that rite et recte, historically and logically, the transmissibility with which he is gifted or encumbered forms no just portion of his true office and its duties.

The testamentary executor, as we now have him, was unknown to the Roman Law so long as it continued to be uninfluenced by Christianity. The administration of a testator's property, such as in our days is conducted by the executor,

1 Since writing the above, an esteemed friend has informed us that some years since Lord Campbell, whose wonderful acumen no absurdity can escape, proposed to bring in some bill to remedy the evil above pointed out.

in the palmy state of that law was committed to an institution wholly and absolutely distinct.

In accordance with this peculiar institution, a testator could only leave his property to one or more persons, whom the law denominated his hæres or hæredes; but to soften this absurdity, he was allowed, under certain formalities, to condemn the hæres or hæredes to pay to other persons such legacies as he chose to bequeath; and this liberty, by the beginning of the Empire, was further increased, and a testator was enabled to bequeath his property (but still the whole of it) to his hæres, upon condition that he restored either the whole or a part of it to one or more persons: this latter was the hæres fiduciarius.1

In this institution, it is easy to see that there is no executor. Here is only a person having a beneficial interest in the deceased's estate, and deriving his authority to administer it from that beneficial interest; for even in the case of the hæres fiduciarius, the law gave him a right to a certain portion of the estate, notwithstanding it purported to be all given away in trust; and in the case where the testator had exhausted his estate in legacies, the hæres could compel the legatees to refund to the extent of a portion also fixed by law.

In the hæres, therefore, resided the general administration of the estate; but he could receive a limitation of his powers and his functions, as well as a restriction of his beneficial interest, if the testator so willed it.

By the Roman law, a testator could commission and direct a person, purely disinterested in a pecuniary point of view, to do a certain act connected with his last wishes, or to receive a sum for the same purpose, distinctly and independently of the hæres. This act would be one in which the testator's feelings of piety, of local patriotism, or of egotistic ostentation, would be engaged; and it would therefore be one in which he would distrust the avarice of his hæres; and he would accordingly select an esteemed and unselfish friend or a public official for the purpose, according as the act itself would suggest the elegibility of the one or the other. This person, whom the Roman law styled a minister, and described as nudus, would exact the fund from 1 De Fresquet's Traité Elémentaire du Droit Romain. Paris, 1855.