Blackwood's Edinburgh Magazine - Volume 61, No. 376, February, 1847. Various
the while quietly elaborating this more important performance, the first volume of which (in large 8vo) he published in March 1837. His plan was, to select from the recognised Law Reports some of the chief Cases which had been decided in the Common Law Courts, and which were of such superior importance as to have become "Leading Cases," i.e. in his own words, "involving, and being usually cited to establish some point or principle of real practical importance." Each of these he made the basis of an elaborate disquisition, in which, to continue his own explanation, "in order that the consequences of each 'Case' might be understood, and its authority estimated as easily as possible, Notes" were "subjoined, in which were collected subsequent decisions bearing on the points reported in the text, and in which doctrines having some obvious connexion with them," were "occasionally discussed," ... "without allowing them to digress so far from the subject matter of the text, as to distract the reader's mind from that to which they ought to be subsidiary." It is difficult to speak in terms too highly commendatory of this masterly performance—one quite of a judicial tone of investigation—and which, immediately upon its appearance, arrested the attention of all persons competent to form an opinion on the subject, as a sterling and permanent addition to the highest class of legal literature, and entitled its author to be regarded as really a first rate lawyer. Almost all the judges, and the most eminent members of the bar, wrote to him in terms of warm respect and approbation; and to this moment evince the same appreciation of the excellence of the work by quoting it, not more frequently in the arguments of counsel than in the most elaborate judgments delivered by the bench. It is indeed difficult to know which most to admire—the great extent and unerring accuracy of his law, or the clearness and precision of his reasoning, rendering simple and easy of apprehension the most obscure and perplexing subjects. The "Cases" were selected with great judgment out of the many thousands contained in the Reports; and whether he confirms, or questions, or illustrates the doctrine established by the case upon which he is annotating, he exhibits the same modest freedom, masterly ease, accuracy, and subtlety of discrimination, distinctness of thought, and complete familiarity with the progress of legal decision. Every note, in short, is a model of legal analysis; and the style, also, is pure, simple, terse, and perspicuous. He dedicated this work to his former tutor Mr. Blick: and I recollect our having a long discussion upon the original terms of the dedication; which were these, "To Richard Granger Blick, Esq., this work is inscribed by his obliged friend and pupil." I suggested the insertion of the word "former," before "pupil:" without which, I said, it might appear that the work had been written by one still in statu pupillari. He was a man always difficult to convince of the impropriety of any thing on which he had once determined. He quitted my chamber unconvinced by what I had said: but the dedication afterwards appeared in accordance with my suggestion. I recollect being highly amused by the pertinacious ingenuity with which he defended his own view of the case. The fame of this work was not, however, confined to this country, but soon reached the United States of America, where it immediately met with the most flattering reception, and is at this moment accounted an established text-book, and quoted as an authority by their best writers and judges. I recollect Mr. Smith one day coming to me, and asking me, with a quaint mixture of mystery, pleasure, and embarrassment, if I would "be sure not to mention to any one what he was going to tell me:" and on my promising him that I would not, he showed me a letter which he had just received from that eminent American jurist, Mr. Justice Story, himself one of the most elaborate and successful, legal writers of his age, and whose works are continually cited by both Bench and Bar in their country, with the utmost respect in this country, in which are contained the following.
"I consider your work among the most valuable additions to judicial literature which have appeared for many years. The 'Notes' are excellent, and set forth the leading principles of the various cases in the most satisfactory form, with an accuracy and nicety of discrimination equally honourable to yourself and to our common profession. I know not, indeed, if any work can be found which more perfectly accomplishes the purpose of the author.... I hope that your life may long be spared, so that you may be able to devote yourself to similar labours for the advancement of the learning and honour of the profession." Alas! both Mr. Justice Story and Mr. Smith, each a great ornament to his country, died within a few months of each other. When I congratulated my friend on this encomium, from so competent and eminent a judge, he replied modestly—"Laudari à laudato viro is certainly pleasing."
So great was the demand for this work, that Mr. Smith's publisher urged him to proceed as quickly as possible with the second volume, which he had, in his preface to the former one, announced his intention of doing, in the event of the first portion of his labours meeting with the approbation of the profession. He accordingly at once set to work upon the second volume; and although he was beginning to have serious calls upon his time, owing principally to his having accepted the appointment, in November 1837, of Common Law Lecturer to the Law Institution, such were his energy and industry, that by the 12th of May, 1838, he had succeeded in bringing out the first part of the second volume, which was fully equal in execution to the first. While, however, he was receiving with his usual modesty the congratulations of his friends on this solid addition to his reputation, he received a sort of checkmate, which embarrassed and utterly confounded him; occasioning him infinitely greater annoyance and mortification than he ever experienced in his life. A highly respectable firm of law booksellers, the publishers of his "Compendium of Mercantile Law," and to whom he had also offered the publication of his "Leading Cases," which they had declined, without the slightest intimation of any objection to the principle of selecting the "Cases," which he had explained fully to them, suddenly took it into their heads, that in thus selecting some few cases from "Reports" published by them, as mere texts for his masterly legal discussions, he had been guilty of Piracy! and actually filed a bill in Equity against him and his publisher, to restrain them "from printing, selling, or publishing any copies of the first part of the second volume." I never saw Mr. Smith exhibit such intense vexation as that occasioned him by this proceeding: he felt at once his own honour impugned, and that he might have seriously compromised the character and interests of his publisher. Such, however, was the confidence in the justice of his case felt by the latter, that he resolved to resist this attack upon his own rights and those of Mr. Smith to the very last; and he did so, at his own expense, and with triumphant success. The Vice-Chancellor of England, (Sir Launcelot Shadwell,) after an elaborate argument, refused to grant the desired injunction—expressing his very decided opinion "that on the substance of the case, and on the conduct of the plaintiffs, (the publishers in question,) they were not entitled to the injunction which they had asked." Against this decision the plaintiffs immediately appealed to the present Lord Chancellor, Lord Cottenham, who, after another very elaborate argument, and taking time to consider, delivered a luminous judgment confirming the decision of the Vice-Chancellor, triumphantly vindicating the propriety of both author and publisher's conduct, and supporting the right which Mr. Smith had thought proper to exercise; and his lordship dismissed the appeal with costs.5 Thus ended, what has always appeared to me a very absurd, and as the event proved, expensive experiment, on the part of the plaintiffs. Only one of them now carries on the business, and is a gentleman of such high respectability, and also liberality in his dealings with the profession, that I feel satisfied he had really very little part in this most unsatisfactory proceeding. Mr. Smith's right to continue his selections from the Reports, for the purpose of annotation, having been thus established, and the excellence and importance of his labours conspicuously made known (had that, indeed, been necessary) to the entire profession, he at once proceeded with, and in due time completed the remaining portion of the second volume; and for the sake of legal science, it is to be lamented that there this admirable work ended. Mr. Smith felt no exultation at the defeat of this most thoughtless and unjustifiable attack upon him, nor evinced any pleasure in the friendly congratulations showered upon him. His sensitive mind had, indeed, been thoroughly shocked by the imputation which had been sought to be fixed upon him; and the only feeling on the subject which he ever expressed to me, or appeared to entertain, was one of calm indignation. I must say that in this I think he was abundantly justified. He repeatedly told me that he should never write another book, for "that he had had quite enough of it." As it happened, he never did; nor do I think that he would ever have done so, even had his career not been cut short by death. Whenever works of solid interest and importance in general literature appeared, Mr. Smith was very eager to peruse them, and seldom failed in doing so.
The leading Counsel for the plaintiffs was the present Vice-Chancellor Knight Bruce; for the defendants the present Vice-Chancellor Wigram.