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(0)
IBapVanto Pime1732.
James Ranire del et fc. 1797
The Henerabil William Murray
Publifhed as the Act directs, June 1:"1797 by l.Elmsley Strand
THE
S
L I F E
OF
WILLIAM LATE
LATE EARL OF
M A N S F I EL D.
)
I
BY
JOHN HOLLIDAY, or LINCOLN'S ÍNN, Esquire, F. R. S.
SIND BARRISTER AT LAW.
LONDON:
PRINTED FOR P. ELMSLY AND D. BREMNER, T. CADELL, JUNIOR,
AND W. DAVIES, (SUCCESSORS TO MR. CADELL,) IN THE STRAND;
T. PAYNE, CASTLE STREET, LEICESTER FIELDS;, W. CLARKE AND
SON, PORTUGAL STREET, LINCOLN'S INN FIELDS; J. COOKE,
AT OXFORD; AND J. DEIGHTON, AT CAMBRIDGE.
1797.
}
.
TO THE RIGHT REVEREND THE
LORD BISHOP OF
WORC E S T E R.
+
My LORD,
The great veneration, with which many
Barriſters and Students of the honorable Society of Lin-
coln's Inn, in days of yore; idolized the late Lord: Chief
Juſtice Mansfied, may be more eaſily conceived than
adequately expreſſed.
I beg permiffion, my Lord, to add, without a breath
of adulation, that; to clothe the expreſſions, the" pure
effufions of gratitude, with proper language, bearing any
affinity to your own elegant ſtyle, a ſtyle whi
men of
letters will revere as long as claſſical purity, energetic dia-
logue, and poliſhed diction, are valuable in the Engliſh
language, appears a work of inſuperable difficulty.
Happy would it have been for an enlightened' age;
if your. Lordſhip’s bodily health had to the preſent
period kept pace with the vigor of your mind if
your other avocations would have permitted, what?
your. inclination would not fail to prompt--the pay--
ment of a juſt tribute to the memory of. a. zealous;
patron
ir
DEDICA TI O N.
patron, and a ſincere friend--an office, which, from a
chain of circumſtances, devolves on one, who, however
ambitious he may be from motives of gratitude, reſpect,
and veneration, feels himſelf very unequal to the taſk of
bending the bow of Ulydes, and of performing ſo difficult
a ſervice.
Conſcious, as I am, how diffimilar this plain addreſs to
your Lordſhip muſt be to modern adulation, too prevalent
in Dedications to illuſtrious Patrons; I am likewiſe con-
fcious, that my having faid ſo little, on the ſubject of your
Lordſhip's pre-eminent abilities, is the beſt recommenda-
tion of any apology I can poſſibly make for embracing
this fair occaſion of declaring to the world, that I am
likewiſe indebted, greatly indebted to your Lordſhip, : for
repeated inſtances of kind attention ; that nothing leſs
than your great delicacy could ſtifle my moſt grateful ac-
knowledgements, and compel me briefly to add, that I
Thave the honor to be,
My LORD,
Your Lordſhip’s moſt obedient
and moſt obliged humble Servant,
LINCOLN's Inn, June 16, 1797.
JOHN HOLLIDAY.
(v)
P R E F A CE.
.
7.
CANDOR will readily confeſs, that the concurrent teſtimony
of all
ages
exhibits a warm panegyric on Biography: its leading :
feature is to captivate and inſtruct mankind by examples. taken-
from the ſchool of life. When the lives of great and eminent
men are faithfully recorded and tranſmitted down to pofterity,
they raiſe a praiſe-worthy emulation among mankind, to anſwer
the ſeveral claims which parents, friends, and country, have
upon every candidate for fair fame : hence a laudable ambition
prompts every individual to lay the foundation of a reaſonable
hope, that he may one day either diſtinguiſh himſelf in one of
the liberal profeſſions, or may otherwiſe become an uſeful mem-
ber of, and an ornament to, fociety.
Among. antient writers Tacitus gives his readers this conciſe
yet juſt deſcription of the antiquity and real uſe of biography.
- To record the lives and characters of illuſtrious men was
the practice of the Roman authors, in the early periods of the re-
public.
content
“ Clarorum virorum faéta, moreſque tradere antiquitus ufitatum."
Julii Agricola Vita..
Ini
.
b.
vi
P R E F A C E.
i
.
99
In modern times, that great fun of eloquence, lord Chatham,
who pervaded and illuminated the Britiſh fenate with unuſual
fplendor, is thus emphatically deſcribed by the diſcerning Au-
thör * of Anecdotes of ſome diſtinguiſhed Perſons, chiefly of the
preſent and two preceding centuries.
“ Lord Chatham ſeems to have been one of thoſe ſuperior ſpi-
rits who, in mercy to mankind, are permitted occaſionally to
viſit the lower world, to revive or create nations, and to decide
the fate of empire.
“ This great luminary once declared in the Houſe of Com-
mons, that no book had ever been peruſed by him with equal
inſtruction with the Lives of Plutarch."
Any addition to theſe ſuffrages would probably, by men of eru-
dition, be conſidered as a motly groupe of figures in a fine picture,
equally unneceſſary and improper, a mere waſte of time.
Whether we conſider the great natural endowments of lord
Mansfield, the extent of his mental powers; the times of uncom
mon trial and danger in which he lived, the very long and vigo-
rous life which he employed in the adṁiniſtration of juſtice :
Whether we contemplate his unwearied efforts to render plain
and perſpicuous, and to improve the laws relating to commerce,
to modify and adapt the various rules he had himſelf eſta-
bliſhed reſpecting policies of inſurance, and to make them from
time to time competent to, and commenſurate with, the flouriſh-
ing ſtate of commerce in this country :
Theſe conſiderations collectively point out' a' fáir ſubject" för
uſeful diſcuſſion; and theſe conſiderations, among others which
will be brought forward in the courſe of the work, as occaſion
may offer, will exhibit the life of the earl of Mansfield in the moſt
advantageous point of view.
* William Seward, Eſquire, F. R. S.
5
The
PREFACE.
vii
:
The author of theſe ſheets has, during four revolving years,
been in expectation of ſome abler pen attempting the delineation
of ſo exalted a character ; and he can truly fay, that it would
have afforded him infinite pleaſure to have had a fair opportu-
nity of reſigning his materials to any gentleman deſirous of fig-
nalizing himſelf in the annals of biography, and of twining
round his brow a wreath of no' ſmall eſtimation. He would
thereby have enjoyed complete ſatisfaction, in being able to con-
tribute to the utility, the improvement, and greater perfection of
a work of this nature.
So early as in the year 1756 was he captivated and enamoured
with the eloquence of Mr. Murray, on his taking leave of the
honorable ſociety of Lincoln's Inn. The ſtudious. reader is re-
queſted to form his own judgement, whether this early admira-
tion of ſuch unrivalled abilities was likely to be effaced, or in
any degree diminiſhed, by pleaſing and unremitted attention to
Mr. Murray's riſing fame, and by the unerring teſtimony of al-
moſt forty years experience.
Impelled by a lively ſenſe of gratitude for the ſignal favor of
having been, early in life, patronized by the noble earl, and on
many important occaſions afterwards countenanced, and treated
with great partiality, he is irreſiſtibly prompted, however une.
qual to the taſk, to engage in the arduous work, and to pledge
:
himſelf to the candid reader, that whatever errors may, and too
many unavoidably will, creep into a work of this extenſive
nature, replete with references, none of them ſhall be intentionale-
Some account of the texture of this work and of the mate.
rials collected, collated, and preſented to the public eye, may,
in a prefatory diſcourſe, be acceptable to the reader; for he will
be miſled, and his time will, in a great degree, be mifpent, who
expects to find in theſe ſheets the life of the earl of Mansfield in
his ſituation of a ſtateſman. The writer freely confeffes, and has
a pride in the confeſſion, that his views are confined to a delinea-
tion:
1
b. in
viii
PREFACE.
66 who can
tion of the noble earl's character in his judicial capacity and in
private life, in both of which he pre-eminently excelled, ſince
envy
herſelf inuſt allow, that fewer weeds were never found on ſo
great an expanſe of vigorous cultivation.
The political life of this great man will it is reaſonable to in-
dulge the hope) at ſome future period, be portrayed with
greater juſtice to the character of a dignified ſtateſman, by the
learned compilers of the Biographica Britannica, than it can be
by any private individual, one only excepted. Yes, there is one
very learned and venerable friend of lord Mansfield,
ſpeak of his conduct in the Houſe of Lords with the more con-
fidence, becauſe he ſpeaks from his own obſervation ;" and is
there a man of ſcience, who will not readily admit that this diſ-
tinguiſhed prelate ſtands not in need of any co-adjutor? That he
is ipfe agmen ; and that under all the combined and favorable cir-
cumſtances of gratitude, friendſhip, affection, and great literary
abilities, he could embalm the memory of a deceaſed friend
with aromatics of the choiceſt fort.
The only hope which an humble individual is ambitious to
cheriſh is, that his account of the life of a great lawyer, may
be more uſeful to the profeſſion of the law, and more acceptable
to the public, in proportion to the detail of the noble earl's emi-
nence in the law, rather than of his influence in the ſtate.
It will in this place probably be expected, that ſome reaſon
ſhould be aſſigned for the diſtribution of the ſpeeches in the fol-
lowing work, into the order of time in which they were delivered.
In this, the great Le Clerc, and the learned Dr. Jortin were
his models, who, in the Life of Eraſmus, have introduced the
letters of that wonderful man, in regular ſucceſſion, ſo as to give
this pleaſing proof, that no one year of his ſtudious life was de-
voted to indolence or inaction. But this is not all! The
ſpeeches of lord Mansfield have no connection with, or depend-
ance on, each other ; and therefore any reverſal of the order of
time appeared to be equally unnatural and unneceſſary.
But
PREFA C'E.
ix
t
But in this place; may it not reaſonably be aſked what fá.
vorable and happy opportunities has the writer of theſe ſheets
enjoyed, above others, of poſſeſſing materials for conſtructing ſo
great a work? However delicate the ſubject may be, He begs leave
to enable the candid reader to form a juſti judgement of his re-
fources; flowing from ſeveral diſtinct and friendly channels of
information.
An original letter, in 1735, introduced in the early part of
this work, fell into his hands, as one of the executors of the late
Mr. Booth, a gentleman of great eminence in his profeſſion, and
a.contemporary with Mr. Murray. In this letter he found the
emanations of a friendly heart; and could not reconcile to:
himſelf the propriety of claſſing it, on the one hand,, among
papers unintereſting to the public, or of keeping it in ſecret, on
the other. In fine, it was reſtored to lor:d Mansfield at the dif-
tance of near half a century, who, after having permitted, the
company then preſent to read it, was pleaſed with great polite-
neſs (and poſſibly with fome deſign) to deſire that it might be
reſtored to the ſame perfon from whom it came, adding that.it
could not be in better hands:
The late lord ehief baron Parker firſt communicated to lord
Mansfield a clauſe in Mr. Booth’s will, whereby he left all his
Manuſcripts to the author of theſe ſheets'; when the lord chief
juſtice. was pleaſed to ſay, “ he was extremely głaď to hear they
were in ſuch hands, ſince few people knew ſo well as himſelf the
value of theſe manuſcripts.'
In addition to the great aſſiſtance thus derived from one con-
temporary of Mr. Murray, the author has had the honor of re-
ceiving ſome valuable communications from the learned Sir James
Marriot, judge of the court of admiralty, who was in the habits
of friendſhip and great intimacy with lord Mansfield.
To Francis Wheeler, Eſq. of Whitton near Coventry, who
well deſerves, and is probably now. intitled to the venerable
diſtinction
b 3.
1
1
x
PREF A. C:E.
A
diſtinction of Father of the Bar, and who was alſo contem-
porary with: Mr. Murray; he is alſo indebted. for liberal and
friendly communications,
ab
Some intereſting anecdotes.of lord MANSFIEĽD -Have been put
into: the aụthor's hands by Dr. Turton, in the moſt friendly
manner...
To George Brooks, Eſq. banker irr Chancery-lane, and late
high ſheriff of the county of Bedford, the author's grateful thanks
are due for the firſt portrait which was ever drawn of the hono-
rable Mr. Murray, from which the engraving in the Front of this
Work has been made..
The debt of gratitude is alſo very great to William Seward,
Eſq. F. R. S. who in addition to his permiſſion, to uſe any of the
few yet correct materials which he had previouſly given to the
public, has tranſmitted ſome choice obſervations, of which the
author of theſe ſheets is not a little proud.
To Dr. Combe (whoſe elegant and erudite edition of Horace,
infcribed to the earl' of Mansfield, has proved that works of lite--
rature may flouriſh under the auſpices of a liberal profeffion) tha
author's beſt acknowledgements are juſtly due.
To have ſaid fo little by way of information or advice to the
courteous reader, ſeems-tó require an apology. The author will
endeavour to make the beſt atonement in his power for the
omiſſion.
To thoſe, who, in reading the life of a great man, have
only amuſement in view, he has no adviſe to offer, no rules
for their recreation to lay down. But to the Tyros at the bar,
and the ſtudents looking up to it, he begs permiſſion to recom-
mend, that after a curſory view of the whole, they will re-
fpectively be pleaſed to impoſe ſomething like a talk on them.
ſelves, of, not only reading, but of ſeriouſly ſtudying, one of the
three chapters or diviſions of this work, in one or other of the legal.
часа-
5
PREFACE.
xi
!
3
vacations in the year; with a view to diſcover cloſe analytical
reaſoning, adorned with an happy facility of expreſſion, clear
conceptions, and juſt concluſions, which will not fail amply to
recompence the attention they ſhall give to the ſpeeches which
flowed from the tongue of the Britiſ Tully. If, by patience and
perſeverance the great ſupporters of ſtudious minds, that, which
at the firſt bluſh may be ſomewhat irkſome and laborious, ſhould
wear a more pleaſing aſpect, and even become a favorite ſtudy,
the author's labors in their ſervice will not have been in vain :
ſince by emulating the irreſiſtible eloquence of a Pericles, they
will probably riſe above mediocrity, and diſdain to creep with
Timæus.
To apologize for this prefatory diſcourſe, which has imper-
ceptibly ſwelled to length, which the author little thought of at
the opening, would only increaſe the impropriety of detaining
the curious reader in the anti-chamber any longer.
?
THE
(I)
+
Τ Η Ε
!
L I F
E
OF
}
WILLIAM EARL OF MANSFIELD.
1
..CH A P.
I.
+
THE
HE Honorable WILLIAM MURRAY, afterwards earl of
,
Mansfield, was a younger ſon and the eleventh child of David
viſcount Stormont, who was the fifth viſcount of the noble and
illuſtrious family of Murray.
Sir William Murray of Tallibard, in the ſhire of Perth, by
Catharine his wife, daughter of Andrew Lord Gray, had four
fons; and Sir Andrew Murray, the third ſon, was the proge-
nitor of viſcount Stormont, the father of lord Mansfield.
On the ad of March, 1705, according to the computation of
time in Scotland, but in 1704 according to the legal compu-
tation of time in England, William, the fourth ſon of lord
Stormont, was born at Perth in North Britain.
About the tender age of three years, he was removed to, and
educated in, London; and conſequently he had not, when an
infant, imbibed any peculiarity of dialect, which could tend to
decide that Perth had a fairer claim than Bath to the honor of
B.
his
1
2
THE LIFE OF
his birth. The year of his admiſſion, as a king's fcholar at Weſt-
minſter, appears to be 1719.
When he was a Weſtminſter ſcholar, lady Kinnoul, in one of
the vacations, invited him to her home, where, obſerving him
with a pen in his hand, and ſeemingly thoughtful, ſhe aſked
him if he was writing his theme, and what in plain Engliſh the
theme was. The ſchool-boy's ſmart anſwer rather ſurprized her
ladyſhip, “ What is that to you !” She replied, “How can
you be ſo rude ? I aſked you very civilly a plain queſtion; and
did not expect from a ſchool-boy ſuch a pert anſwer.” The reply ·
was, Indeed, my lady, I can only anſwer once more, What
is that to you !” In reality the theme was-QUID AD TE—pertinet ?
Whether the affinity in Scotch enunciation between Perth and
Bath, or whether the inſtructions fent with the honorable
Mr. Murray for matriculation at Oxford were not written in a
fair hand, the miſtake of Bath for Perth was actually made;
and, however ſingular it may appear, candor muſt allow, that
ſuch a miſtake might eaſily happen.
Be that as it may, the entry of his admiſſion as a ſtudent of
Chriſt-church, Oxford, of which a correct copy is ſubjoined, is
contrary to the real fact, reſpecting the place of his birth.
Trin. Term. 1723, June 18.
Æd. Xti. Gul. Murray 18.
David f. Civ. Bath.
C. Som. V. Com. fil.
T. WENMAN, C. A.
Sir William Blackſtone is ſaid to have mentioned this curious
circumſtance to the Lord Chief Juſtice of the King's Bench,
while he had the honor to fit with him in that Court; when
lord Mansfield anſwered, “ that poſſibly the broad pronunciation
of the perſon, who gave in the deſcription, was the origin of
the miſtake."
Biſhop Newton, who was one of his cotemporaries at Weſt-
minſter, bears this honorable teſtimony to his ſchool-fellows
early fame.
During
>>
u
WILLIAM EARL OF MANSFIELD
3.
During the time of his being at ſchool, he gave early proofs
of his uncommon abilities, not ſo much in his poetry, as in his
other exerciſes, and particularly in his declamations, which were
ſure tokens and prognoſtics of that eloquence which grew up to
ſuch maturity and perfection at the bar, and in both houſes of
parliament *.
At the election in May, 1723, when he was in the 19th year
of
his
age,
he had the honor of ſtanding firſt on the liſt of thoſe
gentlemen who were ſent to Oxford, and was accordingly en-
tered of Chriſt's Church on the 18th of June following.
About four years afterwards, he was admitted to the degree of
B. A.; and on the death of George the Firſt, the following
elegant Latin verſes written by Mr. Murray, as one of the mem-
bers of the Univerſity, were honored with the firſt prize ; and will
probably be convincing to every claſſical reader, that the great
declaimer, or the younger Tully at Weſtminſter, had either
courted the Muſes with uncommon ſucceſs at Oxford, or that
the learned Prelate has depreciated the worth of Mr. Murray's
Latin poetry +.
- Quo percuſſiſti Britonas conjunctaque regna
Ictu, Fati enfis ! trepidant ipfa atria regum
Ingentemque ſtupet mærens Europa ruinam.
Georgius occubuit Rheni pacator et Iſtri :
Et dubitamus adhuc animam accumulare fupremnis
Egregiam donis ? quondam decus omne Britannis
Spargite flore pio cineres, oleæque Minerva
Inventrix, et Phoebe pater, cui laurea cura!
Hic Juvenis laurum fovit, longævus olivam:
Diique deæque omnes ! ſtudium queis pace juvare
* See Biſhop Newton's Life, page 21.
† Other poliſhed verſes by the ſame elegant pen of Mr. Murray, in
praiſe of Blenheim, may be found in that uſeful repoſitory the European
Magazine, for the month of April, 1793.
Mortales,
B2
4
THE LIFE OF
Mortales, vigiles hic cuſtodite favillam
Illuſtrem, famamque viri ſervate perennem!
Numine ſi veſtro.centum conftrinxit aënis
Bellona, horribilem nodis; terræque furenti
Impoſui pacis morem ; ftetit aſper in armis
Germanus, fremuit jactantior ore minanti
Hiſpanus: metuere tamen concurrere bello,
E latebris tandem excitum tremuere leonem.
Solvite corda metu; fpem fi mittatis avaram,
Fodera ſervetis; vindicta major et ira
Auguſti vobis pietas tutela ; triumphum
Abnuit, Europæ damnis, vitiſque ſuorum
Staturum : nec vincendi tam dira libido.
O virtus ! O cana fides! quis fundere laudes
Pro meritis ejus pofſit, qui dulcia, dictis,
Non armis, gratæ peperit folatia pacis
Gentis innumeris: renuens fuperare jacentem,
Ipſa tenuerat quem faina nominis hoſtem?
Ofi patronum viduata valeret ademptum,
Orphæis urgere modis Rhedycina ! fepulchrum
Attollens inſigne lyra, decoraret amati
Principis illuſtres manes, gratoque labori
Incumbens, mæſtum fic ſolaretur amorem.
Tu tamen interea, quondam ſpes altera gentis
Nunc decus et columen, populo plaudente, Brittanno
Succedis Solio ordinibus difcordia ceffit
In te diverſis, patriæ vox una ſalutat. .
Hos inter plauſus procerum plebiſque benigno
Accipas Rex ore, vovet tibi terga togata,
Quæ, ftudiofa cohors operum! pars parva tuorum
Non ingrata tamen ; quoniam nec amantior ipfa
Eft Carolina tui, licet illi pronuba Juno
Et Venus æterna vinxerunt pectora flamma.
;
GUL. MURRAY, A. B.
Honoratiff. Vicecom. de Stormont Fil.
Ædis Chrifti Alumnus."
His
i
WILLIAM EARL OF MANSFIELD.
5
His oration in praiſe of Demoſthenes preſented another early
preſage of his riſing fame; a valuable fragment of which, having
been preſerved, is here fubjoined.
S
Fragment of an Oration on DEMOSTHENES, by Mr. MURRAY,
when he was a Student of Chriſt's Church, Oxford.
Quantum ad veram eloquentiam adipiſcendam innumera ea Præcepta quæ
Rhetorum libris traduntur, viderint hujus Artis Magiſtri, quòd exemplis
potius quam præceptis ars ea (fi qua eſt) diſcenda fit nemno certè dubitabit.
Quod imitatione magis quam regulis ad benè dicendum forinemur hujus in-
ſtituti ratio docet, quæ optimum in aliquo ſcribendi genere exemplar ad imi-
tandum proponi jubet. At eloquentia quem præ 'Demoſthene, fumamus
Magiſtrum? Quam orandi legem potius quam nobiliſſimam ejus pro Ctefi-
phonte. Orationem ? Cteſiphontem in judicium vocavit Æſchines quia De-
moſtheni immerenti et contra leges coronam decreviſſet. Prima pars accu-
fationis legum continet interpretationem fatis acutam. Altera Demoſthenis
vitæ tam privatæ quam publicæ reprehenfionem fanè gravem. Eundem or-
dinem in defenfione fuâ quivis alius orator obſervaffet, at non Demofthenes.
Quâ folemnitate exordii animos auditorum incitat ! Deoſque deaſque omnes
benevolentiæ ſuæ in civitatem teftes adhibet! Quam fibi modeftâ meritorum
in cives fuos commemoratione ad fe audiendum munivit viam! Dum nihil
aliud videtur elaborare quàm ut cum æquo animo judicis audiant, efficit ut
proſequentur benevolo. Mentibus omnium ad lenitatem miſericordiamque
erga ſe revocatis, de legibus pauca diſceptat. Quâ ſubtilitate Æſchinis inter-
pretationem oppugnat et evertit, ſuam defendit et probat: Quam acuta et
enucleata eft hæc tota diſceptatio, quam preffa ! Feſtinat enim ad res ſuas
pro Republicâ geftas (quod validiſſimum caufæ firmamentum videbatur) ora-
tionem convertere, et in uberiori adminiſtrationis fuæ campo ſpatiari.
Sed alia videamus, et ſpectaculum fanè Deo dignum, ecce hominem patria
iniinicos fuos facientem, inter Græciæ incolumis corruptelas incorruptum,
inter fractæ ruinas erectum! Audiamus eaſdem in dejectâ civitate, de gloriâ,
dle libertate ſententias proferentem et inſpirantem quas Republicâ florente
Pericles. Audiamus, ratione non eventu, honeftate non utilitate, confilia
perpendentem et eadem in Foro, trutinâ actionis examinantem quæ in Sylvis
Academi
1
6
THE LIFE OF
Academi Plato. Audiamus eadem contra Tyrannidem Alexandro vivo, ful-
minantem quâ Cæſare mortuo Tullius. Nemo rerum frequentiâ crebrior
quain Demoſthenes in nullâ oratione tanto fplendore, divina hæc oratoris vis
et anima eloquentiæ eniteſcit quanto in hâc pro Ctefiphonte. De rebus a se
geftis eodem animo et ingenio (a quo geftæ erant) magnifice dicit. Non
enim lapidibus civitatem ſtabilitam-præclare dictum, fi poſt Marathonis
victoriam dixiſſet Miltiades, quanto autem ſublimius idem poſt Cheroneæ
cladem dicere audere, quanto gloriofius populo applaudente poſſe. Tullium
aliàs divinum, de fe ipfo loquentem fummo aurium faſtidio audimus. De-
moſthenem nullo, quia, pro periculo, non in gloriam merita ſua referre, et
niſi laceffitus omnino filuiffe videtur. Nullibi fe patrem patria dicit, ſed
ubique oftendit, non laudat adminiftrationem fuam ſed narret, non jactat ſed
defendit. Veruntamen, conſtat neminem melius unquam laudatum fuiffe,
quia per ſingles orationis partes admirabilem fe efficit, nec appellat.
Eft omnino ingrata et invidiofa ad dicendum materies, ſui ipſius prædicatio,
at Deinoſtheni in hâc cauſâ præcipuè difficilis, coram populo, enim qui quod
malè ſucceſfit, malè ſuſceptum fuiffe plerùmque judicat. Gloriam ſibi ſumit
rei geftæ permagne quidem, fed eventu Reipublicæ calamitofa.
Quâ gravitate de confilii fui ratione differit ! Quâm divino incremento
furgit argumentoruin ſeries ! Quòd decretum propofuit, cum præco concio-
nari juberet, officii ſui (quod tale quo nihil melius inveniri potuit), Sapientiæ
docet fuiffe. Quòd, virtute aſſiduitate, conſiliis ſuis ſucceſſum meruit, be-
nevolo et diligenti civi, debitam coronam fibi vendicat. Quòd eo caruit non
culpæ fuæ, ſed fortunæ dandum effe oftendit. Quâ tamen celſitudine animi
(qui nil niſi grande concepit) victis Athenienfibus probat eæ fententiæ pa-
rendum, et cum Philippo congrediendum fuiffe, licet eventum (quem nemo
fufpicatus eſt) planè prævidiffent omnes. Nihil unquam de amore patrie mi-
rabilius, nihil de glorioſo periculo, turpi ſecuritati de morte ſervituti præferenda,
concipere Brutus et Cato, quam quæ hunc orationis locum illuſtrant. Exem-
plo majorum, qui pro communi Græciæ ſalute periclitavêre, ſententiam de-
fendit ſuam laudatione, judicibus eandem animi magnitudinem infinuat, cum
(quaſi Deos) efficit Demoſthenes illos, qui Themiſtoclem in exilium fequi,
quam domi ſervire maluêre. Non amplius Cheroneæ infortunium videtur, pa-
trum laudibus cohortati et elati extra ſe rapiuntur auditores omnes et eodem
animi ardore inflammantur, ſucceſſum Deorum arbitrio tribuunt, quod
patriæ virtutis æmuli prælium.commiſêre feriò triumphant.
3
Eæ
mm
WILLIAM EARL OF MANSFIELD.
::
1
Eæ fententiæ vi fuâ non placent tantùm fed perſuadent, fed languentia po-
puli corda divino quodam furore excitant, verborum fplendore illuſtratæ, col-
le Etam oratoris potentiam explicant.
Demoſthenis orationem, natur alis ornat non fucatus nitor, ita verbis eſt ap-
tus, ut ea res ipfe peperiſſe, ita porrò preffus ut dilucidè potius quam elo-
quenter dicere videatur. Diffufior Æfchines, ſed in ſumma ubertate luxuries
ineft. Multa funt huic quæ detractes ambitiofa, ornamenta, illi quod addas
nihil, aliquanto dulcior Iſocrates fed cum ſatietate delectat. Demoſtheni
rerum magnitudine occupato, non vacat eſſe diſerto; minime vacat de maximis
Græciæ periculis, poſt Elatæam captam dicenti, pigmentis fucoque puerili fen-
tentiam explicare. Quanto tamen efficacior, ſubitæ hujus exhortationis contra
Philippum dignitas quam contra Xerxem quindecim annis elaborati fermonis
elegantiæ. Tam felici facilitate fluit oratio, ut omnino elaborata appareat,
tantâ tamen arte celatur ars, tantâ curâ ftruitur hæc jucunda verborum con-
clufio, ut verſum quendam numerumque conficiat, cujus ſyllabas menfurare
maximi critici non dedignantur. At figurarum copiâ, vi, ſublimitate, facilè
omnes antecellit Demoſthenes. Quibus tranfitionibus puncta argumentorum
occulit et velat! Æftu quodam ingenii ſui procul abreptus, aliud agere
videtur cum in ipfa digreffione quam maximè cauſa fit. Quâ continuatâ me-
taphorarum connexione contra Græciæ proditores invehitur! Probationem
affert nihil mali feciffe Athenienfes, fcilicet, exemplum majorum ; at unâ ju-
randi figurâ probationem hanc in eximiam fublimitatem mutat.
Sunt hæc magna quidem, fed funt majora.
Quis flexanimam Demoſthenis potentiam dignè explicaverit, quæ fummiſſo
placidoque principio in animos omnium, velut in accenfos agros taciturno
roris imbre leniter influentes, incendium quod reliquerit Æſchinis, extinguit,
populique furorem placat. Mox vehemens et acer vi quâdam incredibili, au-
ditores extra ſe, contra Æſchinem calumniatorem odio, mercenarium Philippi
contemptu proditorem patriæ irâ rapit. Nullâ peroratione ad commovendum
utitur, nullas animi perturbationes velle concitare videtur Demoſthenes, fed
ſententiis tain novis, tam integris attonitos judices percellit, tam denfis, velut
turbine quodam violento, quocunque velit, præcipitat. Non ad iracundiam
contra Æſchinem Athenienſes hortatur, ſed Græciæ Diis iratis fruentem
coarguit, non implorat miſericordiam ſuorum civium, fed quæ pro patriâ
paſſus eſt, vivis coloribus depingit. Sic, omnem artificii fufpicionem tollit,
et in narrationibus non advocati ſtudium ſed teftis fidem, in argumentis, non
rei excuſationem, fed judicis auctoritatem habet. Æfchini, quem adver-
farii
8
THE LIFE OF
farii crimina laboratis periodis amplificantem, ſuâ mellifluâ inſinuatione ex-
tenuantem videmus, plaudimus, et ingenii famam concedimus. Demoſtheni,
qui ſub hiſtorici perfonâ oratorem celat, qui felici eâ audaciâ quam veritas
ſola parit, beneficiorum cives, benevolentiæ ſuæ Deos teſtes adhibet, cre-
dimus et favemus. Cicero, placatis judicum animiś quantum ipſi patiuntur
accepit, tanta taimen ejus facundia, ut quidvis impetrare poffe videatur.
Non pelit Demofthenes fed rapit, ſed impetu quodam penè divino, fententias
de' eorum manibus extorquet. Dulci Ciceronis arte veluti, Sirenum cantu,
delectati judices cum illo malunt errare, quam cum aliis rectè fentire. De-
.moſtheni tanta auctoritas ineſt, ut pudent diffentire, et cum fulmine elo-
quentiæ tranfverfè feruntur auditores, non oratoris arte abripi, fed naturam
fequi, fed rectæ rationi ſe parere credunt. Cum orationes ſuas contra Clo-
dium aut Catilinam figuris auget, elocutione Tullius exornat, circumſtantis
populi clamoribus etiam admiratione excipitur. Cum Demoſthenes contra
Æſchinem iis affectibus, qui ab ipfâ naturi oriuntur, ſuam animat iracun-
diain, dicentis obliviſcuntur Athenienſes, et (ut hiſtoriæ proditum eſt)
eodem furore omnes inflammati mercenarium Æſchinem appellant.
In aliis orationibus gravis, in aliis fubtilis, in hâc omnigenæ penè elo-
quentiâ leges exhibet Demoſthenes, quippe digna caufa, dignus adverſarius,
digna totius Græciæ expectatio, ut ſummas oratoris vires, et ſe ipſum ſuperare
laboraret. In hâc unâ, plura quam in aliis omnibus, ſublimitatis exempla
reperit. Longinus. Hanc velut optimum Atticæ eloquentiæ exemplar, Latino
ſermone, Tullius edidit.
The reſt of this exquiſite Oration is wanting ; and who ſhall
attempt to ſupply its deficiency? The ſtatue that Praxiteles left
imperfect, what Grecian artiſt dared to finiſh ?
Lord Monboddo, in his excellent Treatiſe of the Origin and
Progreſs of Language, has paid fo juſt a tribute of reſpect to
this fragment of his friend and patron's juvenile declamation, as
to make it the ſubject of an entire chapter, wherewith the ſixth
volume concludes, with a beautiful apoſtrophe or addreſs from
the author in his 77th year to lord Mansfield, then on the verge
of 89. A fummary account only, confined to the ſubject of the
declamation, will be preſented to the reader.
Mr.
WILLIAM EARL OF MANSFIELD.
9
“ Mr. Murray, before he left Oxford, made an oration upon
the ſubject of Demoſthenes' ſpeech De Corona, (the fineſt of
all his ſpeeches in the judgement of the Halicarnaſſian,) in very
elegant Latin, where he has ſhewn, in a muſt maſterly way, the
great talents of an orator exhibited by Demoſthenes in that
ſpeech. A great part of the manuſcript (for it is not printed,
which I think it ſhould have been) was conſumed in the fire
which burnt lord Mansfield's houſe in London ſome years
ago. With a copy of what remains of it, I was favoured by
lord Stormont, whoſe love and knowledge of Greek learning I
have taken occaſion elſewhere to mention. There is one which
he has obſerved and dwelt upon a good deal, as it is what diſtin-
guiſhes Demoſthenes more, perhaps, than any thing elſe from
every other orator; and that is, his inſiſting ſo much upon the
topic of the pulchrum and honeflum, the beautiful and praiſe-
worthy, in ſentiments and actions. There is a good deal of this
in almoſt all his public orations, but particularly in the one at
preſent under our conſideration, that De Corona. It is the nobleſt
topic of oratory, being the nobleſt paſſion of the human mind,
and furniſhes arguments more perſuaſive to a great-minded man,
than
any that can be brought from what is pleaſant, profitable,
or even ſafe. He has carried this ſo far as to fay,
66 that if they
had all known what was to happen, and you, Æſchines, inſtead
of being filent as you then were, had foretold .every thing that
happened, yet the Athenians ought to have done what they did,
if they had any regard to their own reputation, to the fame of
their anceſtors, and to the teſtimony of poſterity.” So ſtrong an
aſſertion as this needed ſome preface, and preparation of the
minds of the people for it; and accordingly he conjures them, in
the name of the gods, not to be ſurpriſed at the paradox he was
to advance, but to hear him with patience and good-will. And
he carries it ſo far, as to affirm upon oath, that they did not err
when they followed his counſel, though with ſuch ill ſucceſs,
ſwearing that famous oath, which the ancient critics celebrate ſo
С
much,
!
IO
THE LIFE OF
much, “ by the manes of thoſe, who periſhed at Marathon, Sa-
lamis, and Platææ, defending the liberties of Greece.”
Who can read this, without admiring not only the orator, but
the people who had ſuffered ſo much by his counſel, and yet.
could hear him fpeak thus, not only with indulgence, but even
with applauſe ?
Another obſervation of Mr. Murray is, that Demoſthenes has
introduced into this oration with great propriety, not only the
praiſe of his own conduct in public affairs, but alſo the praiſe of
the Athenians, and in ſuch a way as not to appear to be mere
flattery, but belonging to the cauſe.
Another excellent obſervation of Mr. Murray as to the matter
of this oration is, that Demoſthenes, under the hiſtorian, con-
ceals the orator. The ſtyle is as excellent as the matter; being
moſt chaſte and correct, having nothing wanting in it, nor any
thing ſuperfluous or redundant. He excelled, more than any
orator ever did, in the greateſt art of a ſpeaker or writer, the
concealing of art. And, therefore, though he laboured his
words very much, the weight of his matter and the force of his
arguments were ſuch, that he ſeemed, to the generality of his
hearers or readers, to be ſo much taken
up
with the great affairs,
which were the ſubject of his orations, that he gave no attention
at all to the words, farther than to convey his meaning ; but
the learned critic will perceive a wonderful art in the order and
arrangement of thoſe words, by which, not only the ear is much
pleaſed, but the ſenſe more forcibly conveyed than it could other-
wife have been, as I think I have elſewhere ſhewn. His excel-
lence in compoſition, his rival Æfchines acknowledged; but ſo
artificial a compoſition muſt have been very well pronounced,
otherwiſe it would have been hardly intelligible ; for, it abounds
with parentheſes, ſome of them very long, and with parentheſes
within parentheſes, as the Halicarnaſſian has obſerved. Now a
parentheſis, properly introduced and well pronounced, I hold to
be one of the greateſt beauties of ſtyle, and particularly of what
is
WILLIAM EARL OF MANSFIELD.
;
is written to be ſpoken ; for it not only gives a denſity and com-
pactneſs to the matter, but, by being detached from the reſt of
the ſentence, it draws the attention of the hearers the more. It
ſhould therefore contain ſomething worthy of that attention
and if it be alſo pronounced with a proper variation of the voice,
ſuitable to the ſubject-matter, will give great force and weight to
the meaning of the whole ſentence. Upon this, ſo perfect model
of eloquence, lord Mansfield formed a chaſte and correct' ſtyle
of ſpeaking, ſuitable to buſineſs, and particularly the buſineſs
of a judge, to whoſe office it belongs, not only to determine
controverſies betwixt man and man, but to ſatisfy the parties
that they have got juſtice, and thereby give eaſe and content-
ment to their minds, which I hold to be one of the great uſes of
law. In this lord Mansfield, as it is well known, was ſo fuc-
ceſsful, that even the lofing party commonly acknowledged the
juſtice of his decrees.”
The beautiful apoſtrophe of Lord Monboddo commenced
here ; but, inaſmuch as it is a kind of Cicero de Senectute, there
ſeems to be more propriety in transferring it to (and the reader
will probably have more pleaſure in finding it in the laſt chapter
of the preſent work.
In April, 1724, Mr. MURRAY was admitted a ſtudent of
Lincoln's Inn,
On the 24th of June, 1730, he took the degree of M. A.
and left the Univerſity ſoon afterwards, full of. vigor, and de-
termined to travel into foreign parts, before he ſat down to the
ſerious proſecution of his legal ſtudies, to which his genius and
his ſlender fortune, as a younger ſon, forcibly and happily
prompted him. He travelled through France, and in Italy, at
an age fitted for improvement and uſeful obſervation ; not be-
tween 19 and 21, a period which his great patron lord Hard-
wicke, in one of the numbers in the Spectator, under the mo-
deſt ſignature of Philip Homebred, evinces to be too early an age
for our Britiſh youths to travel to any real advantage. At
Rome Mr. Murray was probably inſpired, and animated with
the
C 2
12
THE LIFE OF
I
the love of Ciceronian eloquence ; at Rome he was prompted to
make Cicero his great example, and his theme! At Tuſculum,
and in his perambulations over claſſical ground, why might he
not be emulous to lay the foundation of that noble ſuperſtructure
of bright fame, which he foon raiſed after he became a member
of Lincoln's Inn ?
Whether, in point of time, the two following letters were
written by Mr. Murray while he was abroad, or ſoon after his
return to his native country, is very immaterial to the cauſe of
literature ; but it is a very material and pleaſing circumſtance to
his biographer, that theſe letters, intended for the uſe of a
young nobleman, muft have been written about the year 1730,
when Mr. Murray was a very young man, inaſmuch as the fact
can eaſily be aſcertained, that the young duke of Portland ſpent
three years in his 'travels in France and Italy, and returned to
England in 1733
To eſtabliſh the reputation of Mr. Murray as a ſcholar, pre-
vious to the diſcuſſion of his career in purſuit of fame at the bar,
the LETTER upon ancient hiſtory, and a ſhort plan for a courſe
of reading it, by lord Mansfield, are ſubjoined.
“By the ſhort plan I am going to propoſe to you as a courſe of real ſtudy
for about four months, with altiſtance, allowing for interruptions and avoca-
tions, I mean, in the eaſieſt and moſt delightful manner, to introduce you
'to a ſlight acquaintance with ſome of the moſt ſhining parts of ancient
hiſtory, policy, and eloquence, which, if once fixed in your mind and me-
mory, will be ſerviceable to you as long as you live, and help to give, or
at leaſt improve in you, the two great accompliſhments which, your friend
Horace ſays, your nurſe wiſhed you to attain, fapere & fari.
In the wide field of ancient hiſtory, I have fkipped over the rugged
places, becauſe I meant to lead you on carpet-ground; I have paſſed over the
unprofitable, becauſe I would not give you the trouble of one ſtep which
does not go directly to uſeful knowledge, and uſeful to you. My plan means
to carry you but to ſome of the profitable parts, becauſe I am afraid of fa-
tiguing you with a long journey at firſt. I do not propoſe to you to read any
hiſtory at large, becauſe, for the preſent, I want to draw you on the ſhorteſt
5
and
1
WILLIAM EARL OF MANSFIELD.
13
and neareſt road. I chuſe for your guide, as near as I can, Sir Walter Ra-
leigh, who was a wit, a ſtateſman, a courtier, a ſoldier, and a ſcholar ; to
tinge you betimes with the ideas natural to ſuch a character; for, a river does
not more certainly take its colour from the different foils through which it
runs, than the matter does from the caſt of mind, profeſſion, and manners,
of him who treats it..
Without plaguing you with Greek, I give you from Demoſthenes a ſpeci-
men of that true and manly eloquence fit for a ſenator, magiſtrate, and
ſtateſman, in public aſſemblies, which conſiſts of ſtrong ſenſe methodically
digeſted and plainly expreſſed ; not in laboured periods, antitheſes, flowers,
&c. &c. with which all falſe eloquence, Greek, Roman, and Latin, abounds,
and which, from the beginning, has generally been laughed at, and miſta-
ken for the true.
I have a view to your keeping up, and improving, your knowledge of
Latin ; for the reſt, I.confider only your attaining the perfection of your
own language, and laying in materials of eternal ſenſe for thought and
action.
This plan will be a trial whether you have genius and reſolution enough
to perſevere in a courſe of ſtudy for four months.
An interruption of any length between this and another courſe there is no
objection to; but, if you break the thread of this, the whole utility will
beloft.
An eaſier cannot be ſuggeſted; the ſubject is intereſting; your helps are
great.
Victor Olympiacæ retulit qui præmia palma.
You know the reſt, and feel the application.
My plan is as follows :
Read Du Choix et de la Conduite des Etudes, par l'Abbé Fleury, ſ. 26, hif-
toire ; f.
f. 31, rhétorique.
Read and tranſlate into your book Tull. de Oratore, lib. II., f. 51. Age vero,
inquit Antonius, &c. to ſ. 6.3. de cujuſque vita atque natura.
Let L.* be maſter beforehand of the apt conſtruction of this and every
other-book I deſire to be read and tranſlated.
Tull. de Legibus, ib. I. if. 2. Poftulatus à te jamdiu to f. 3. curd vacare et ne-
gotio.
* The tutor to the duke of Portland,
Tull
I
04
THE LIFE OF
“Tull. de Offic. Sed cum plerique arbitrantur, l. 1. f. 105. to turpitudinique
anteponenda.
Let L. give you a general account of theſe books of Tully.
In the hiſtory of the world, four empires have ſucceſſively riſen and fallen,
and have given way to a fifth ſyſtem of policy and power, which continues
to this day: 1. Aſſyrian ; 2. Perſian ; 3. Grecian ;. 4. Ruman; 5. Goths,
-Vandals, &c. who, upon the deſtruction of the Roman empire, overſpread
our world.
The four-firſt are the ſubject of this plan, the fifth I reſerve. for another.
Let L. explain to you, in a few words, the duration and extent of theſe
empires. There is a French Chart which explains it to you mechanically:
Let L. tell yưu who Sir Walter Raleigh was, his ſtory, fate, and the cir-
cumſtances under which he wrote his hiſtory. Then read, for the origin
of ſociety, Sir W. Raleigh *, b. 1. C. IX. f. 1, 3, 4.
Read, and tranſlate into your book, which I ſuppoſe you to uſe for your
remarks in this courſe, Tull. de Offic. l. II. from Mihi quidem to arbitra-
rentur.
I paſs over all the Affyrian empire, applying Vixere fortes ante Agamem-
nona, &c. b. II. C. II. f. 3.
Let L. explain who Xenophon was, his ſtory, time, reputation as a philo-
ſopher, hiſtorian, general, and author, and his famous retreat; b. III. C.
III. f. 3, 4, 5, 6. c. v. f. 6, 7, 8. c. vi. throughout. You now come to
events and characters celebrated by poets, hiſtorians, orators, &c. &c. and
which it is a ſhame not to know; C. VII. every ſection except the 7th, c.
VIII. and c. ix. throughout.
Let L. inform you how the Peloponneſian war is memorable by having
its hiſtory written by Thucydides. Let him turn you to the Engliſh Tranſation
of Thucydides, which, though very ſtiff and very bad, gives the ſenſe, which
you may vary into better words. Let him ſhew you the Speeches, ſuch as
the Funeral Oration made by Pericles; likewiſe ſome of the moſt ſhining paſ-
ſages, which, mending the Engliſh, tranſcribe into your book. B: 111. C.
XII. throughout.
* Theſe references are to Sir W. Raleigh's Hiſtory of the World, firſt
printed 1614, with his life by Oldys, 1736, 2 vol. fol.
His trial 17 Nov. 1603, i Jac. I, executed Oct. 29, 1618, ætat. 66.
Popham, chief juſtice, with the commiffioners, Sir E. Cook, attorney ge-
neral.
Read
WILLIAM EARL OF MANSFIELD.
15.
Read carefully The Engliſh Tranſlation of Mons. Tourreil's Hiſtorical Preface
to Demoſthenes, printed at London the beginning of this Century, b. iv. C. I.
fi 2. to ſ. 8. incluſive.
Read over and over ſuch of the Speeches of Demofthenes as are tranſlated into
Engliſh by Earl Stanhope, Lord Lanſdowne, &c. &c. and printed the beginning
of this century with Tourreil's. Hiſtorical Preface beforementioned... Write obſer-
vations into your book. Get places that ſtrike your imagination by heart.
Reflect upon the nature of the Greek ſtates, ſomething like thoſe of the
Netherlands and Swiſs.,
Let L. make himſelf maſter of Tourreil's Notes, &c. &c. ſo as to be able
off-hand to explain terms, alluſions, and facts. referred to. b. IV, . C. II.
throughout:
Here take for granted, that Alexander's captains divided the ſucceſſion,
fought about the diviſion, in the courſe of generations deſtroyed one ano-
ther, erected ſeveral ſtates and kingdoms, which were all at laſt ſwallowed :
up by the Romans. Roman Hiſtory, b. II. C. xxiv. throughout; b. IV..
C. VII. f. 1, 2,-3.. b. V. C. I.. f. 2., 3,8.. Recollect the ſtory of Regulus,
celebrated by claſſic.writers, the ode of Horace, &c. Tull. de Off. b. 111.
p. 134. Tranſlate f. 9, 10,. 11. C. II. f. 8. c. 11. .throughout.
Take for granted, that after the ſecond Punic War the Romans found or :
fought occaſions by which they conquered the whole Grecian empire ; they
learned letters and arts from Greece, grew polite and ſcholars.
Græcia capta ferum vi&torem cepit, &i.
Serus enim Graiis admovit acumina chartis,
Et post. Punica bella.quietus, & Co.
C: VI. f. 12. End Sir W. Raleigh.
Vertot's Roman Revolutions, b. X. XI. XII. XIII. XIV: throughout. Re-
flect on the nature and conſtitution of the Roman republic. Whether it
was not founded for one town, or at moſt a little republic, not bigger than
that of Florence; but inconſiſtent with a large. ſtate. Whether it did not
continue ſo lòng by accident, by perſonal characters in early times, and by
foreign occupations, more than the nature of the conſtitution, which turned
at laſt into anarchy. Read Bellum Jugurthinum by Salluſt, beginning after the
Introduction with Bellum ſcripturus fum, &c. It is not 100 ſhort pages. Sal-
luft's Chara&ters of Catiline, Cæſar, and Catog. the Speeches: by: Cæfar and Cato.
Cicero's.
16
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)
Cicero's four Catiline Orålions. Study theſe ; write obſervations in your
book.
De la Grandeur des Romains, et de leur Décadence, c. XI. Cicero's fourteen
Speeches againſi M. Antony, which, in imitation of Demoſthenes, are called
Philippics. Write obſervations, &c. &c. into your book. The ſecond,
which is the fineſt, and coſt him his life, is the only ſpeech of length.
When you have finiſhed the above courſe in the manner propoſed, go
over the whole a ſecond time, which, if you make yourſelf maſter of the
firſt time, - need not coſt you many days.
The next thing in order is, that you ſhould have ſome notion of the hif-
tory of the Roman empire from Julius Cæſar to the end of the fifth century;
but I am at a loſs to direct you how to get an intelligible idea in ſó ſhort
time as my plan would at preſent allow to that ſubject. The Hiſtory of the
Twelve Cæfars by Suetonius is well written, but the advantage to you from
reading him would not be equal to the time it muſt take. That part which
Tacitus has written is admirable, and may one day well deſerve your atten-
tion ; but you will underſtand him better hereafter, and I am in haſte to
carry you through a general plan of inodern hiſtory. When you have once
laid your foundation in general knowledge you may afterwards follow your
genius and inclination in applying to particular parts and particular authors.
I have upon this occaſion read Eutropius; but I ani afraid he is too conciſe
to give you any idea. He gives little more than a muſter-roll of the names
of the emperors. Reading in that manner, I doubt, will be to the memory
like the way of a ſhip in the ſea.
The beſt propoſal I can make is, that L. ſhould take c. XII. tO XVIII, in-
clufive, De la Grandeur des Romains, et de leur Décadence, adding the Chro-
nology, and throwing upon paper enlargements upon particular parts, eſpe-
cially the grand epochs; as for inſtance, let him throw, upon paper, ſtrokes
of the character of Tiberius, and ſome remarkable parts of his reign, which
he may eaſily take from Tacitus. The ſame as to Nero, &c. &c. Let him
dwell a little at large upon Trajan, Marcus Antoninus, the five excellent
princes who fucceeded the twelve Cæſars, the inveſting more than one with
the imperial authority at once, the removal to Conſtantinople, the Code of
Laws by Juftinian, military check by Beliſarius, Gode of Laws by Dioclefian,
the diviſion of the empire into two, and the general idea and conſequences
that diviſion. Let him point out famous writers in each reign. This will give
ſome trouble, not a great deal. After this read the Biſhop of Meaux's (Boſſuet's]
Dif-
of
.
WILLIAM EARL OF MANSFIELD.
17
:
Diſcourſe on Univerſal Hiſtory, Tit. de l'Empire Romain, to the end. This will
give you a ſmall map, ſufficient at preſent. Reflect on Roman imperial
government-military and tyrannical, like the Turk and the Ruſſian.
I propoſe, for my ſecond plan, the fifth ſyſtem of policy and power, and
to lead you through the moſt uſeful and intereſting parts of modern hiſtory;
but the ſketching ſuch a plan will give me a good deal of trouble. Short
explanations, not to be got from books ; obſervations by way of key to
tranſactions of ages ; hints, from whence characters, contraſts by compa-
riſon of men, times, works, and ſyſtems, &c. &c. may be ſerviceable, and
muſt require time. You will therefore excuſe iny not thinking of it, until
I fee, by this trial, whether you have genius and reſolution enough to go
through what is neceffary to raiſe you above the common level;
Vietorque virúm volitare per ora,"
.
LETTER upon Modern Hiſtory by Lord MANSFIELD, for the Uſe of
the Duke of PURTLAND.
“ The beſt and moſt profitable manner of ſtudying Modern Hiſtory appears
to me to be this: Firſt, to take a ſuccinct view of the whole, and get a ge-
neral idea of the ſeveral ſtates of Europe, with their riſe, progreſs, principal
revolutions, connections, and intereſts; and, when you have once got this
general knowledge, then to deſcend to particulars, and ſtudy the periods
which moſt deſerve cloſer examination. The beſt way of getting this general
knowledge is by reading the hiſtory of one or two of the principal ſtates of
Europe; and taking that of the leſs ſtates occaſionally as you go along, ſo
far as it happens to be connected with the hiſtory of thoſe leading powers
which
you will naturally make your principal object, and conſider the other
as only acceſſorie.
Though the hiſtory of England is certainly that which you will ſtudy
moſt, yet I think you would do well at preſent to give the preference to that
of France; and therefore the ſhort plan which I ſhall endeavour to ſketch
for
you ſhall be chiefly with a view to the hiſtory of that country.
The reigns of the firſt race of French kings are ſo little known, and ſo
little worth knowing, that I think it ſcarce worth your while to read them
even in the ſhorteſt abridgement.
L. will be able to tell you, in half an hour's converſation, as much about
them as ever you will want to know.
D
As
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+
As to all thofe diſputes about the foundation of the French monarchy,
upon which volumes have been written, as whether Clovis was a great prince
or a chef d'avanturiers; whether he owed the crown to force of arms, or the
conſent of the people, or to both, &c. &c. they may do to employ the
leiſure of idle ſpeculative men, but can never deſerve the attention of a man
who intends for active life, and feels the value of time.
The victories and conqueſts of Charlemagne, his great power, and im-
menſe extent of empire, are too ſtriking objects to be entirely overlooked.
I think it would be proper for you to begin with the reign of Pepin, the
founder of the ſecond race of French kings. For that race, and for the third, as
far as Lewis XI. it will perhaps be ſufficient to read, carefully and ſlowly,
for there is no other way of reading to advantage a book where ſo much
matter is crowded into ſo ſmall a compaſs, Henault's Chronological Abridge-
ment, which is a capital book of the kind. When you meet there with any
remarkable event which you would wiſh to know more particularly, ſuch as
the battle of Creffy, Poictiers, and Agincourt, you may turn to Mezerai or
Rapin ; and I would adviſe you, when you have read in Henault the reign of
any king, to read his character in Mexerai ; for, though nothing is leſs to
be depended upon than ſuch ideal characters, yet they are not entirely
without their uſe; they are at leaſt helps to the memory, and leave upon
the inind pretty much the ſame ſort of impreſſion that is made by ſeeing
the pictures of eminent men ; when we have examined any ſuch picture, no
matter whether like or not, we grow, as it were, better acquainted with the
original, and form to ourſelves an idea of his perſon, which helps to fix in
our memory whatever we hear or read about him.
This fuperficial knowledge of the hiſtory of France is as much as you will
want till you come to the reign of Lewis XI. when that hiſtory comes to be
really intereſting, and conſequently muſt be read more at large, and with
much greater attention. I ſhould be tempted to doubt whether the common
inethod of abridging hiſtory, as you read it has all the advantages that is ge-
nerally imagined. If you enter into a detail, the work is endleſs; and, if
your
content yourſelf with ſhort, dry epitomes, they are, if I may judge by my
own experience, of little or no: uſe, ſcarce any help to the memory
and
forgot almoſt as ſoon as made.
What I ſhould recommend as a much more uſeful exerciſe is; to fet downg
in a few words, the moſt ſtriking and intereſting events, with ſuch obſerva-
tions upon them as occurred to you at the time. To explain what I meam
b:
و
/
5.
+
WILLIAM EARL OF MANSFIELD.
19
by an example : I would obſerve, in the reign of Lewis the XIth, the advan=
tages with which he came to the crown; the manner in which he improved
thoſe advantages, by fomenting diviſions in England, by corrupting the
Engliſh government, and even the king himſelf; the foundations he laid for
the future greatneſs of France, by adding to his kingdom ſuch rich and
powerful provinces, and by lowering and humbling the nobles (who before
his time were ſo many petty tyrants), and by that means giving a ſolidity
and conſiſtency to the French government, which it never had before. I
would likewiſe remark the inconſiſtency of his character, the ſtrange blun-
ders he committed, ſuch as putting himſelf into the hands of the duke of
Burgundy, and that too at the very time he was betraying him ; his miſſing
the opportunity of marrying his ſon to the dutcheſs of Burgundy, and adding
to France, without the leaſt expence or bloodſhed, thoſe provinces which,
by his neglect, fell into the hand of her rival, and have been ever ſince the
object of her ambition, and the cauſe of ſo many ruinous wars: theſe are far
from being all the memorable events in this reign ; many I have forgot, and
ſome that occur to me I purpoſely paſs over, that I may leave thein for your
obſervation. What. I have ſaid is ſufficient to explain my idea, and give
you
will eaſily improve.
The Memoirs of Philip de Commines, who was Lewis the XIth's contem-
porary and favourite, deſerve to be read with attention ſome time or other
but I think you ſhould not meddle with them now: the ſtyle and language
is ſo different from the preſent, that it would only puzzle and confound;
beſides you will find all the material facts in Duclos's Hiſtory of Lewis the
XIth, which is certainly the work of a man of parts, and is written with pu-
rity, though there is a ſtiffneſs and affectation in the ſtyle.
As I imagine you will neither have leiſure nor inclination to drudge
through the early part of modern hiſtory again, I think you would do well
to ſtop a moment, in order to run over in your mind the moſt remarkable
events in that period, and fix them in your memory once for all : what thoſe
events are, you are now better able to judge for yourſelf than I am to tell
you;
ſuch of them as relate more immediately to the Hiſtory of England
(and many ſuch there are) you need not ſo much attend to at preſent, as
you will certainly, ſome time or other, make them the ſubject of a particular
enquiry; but there are two great objects, in which the general hiſtory of
Europe is concerned, which, from their importance and ſingularity, muſt
have ſtruck you, and will deſerve a more particular examination,' as they
certainly
you a hint which
D24
:
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1
certainly make the moſt intereſting part of the hiſtory you have juſt been
reading ; the two objects I mean are, the riſe and progreſs of the Papal Power,
and the Cruſades, or holy wars.
The origin and growth of the pope's temporal power, the continued ſeries
of fraud and artifice on which it was built, and by which it was main-
tained and gradually improved, is no where, that I know of, more clearly
and fully ſtated than in Gionnone's Hiſtory of Naples ; but that is a book
which cannot enter into your preſent plan, but will deſerve to be read, fome
time or other, with the utmoſt care, as one of the moſt inafterly and in-
ftructive books any country ever produced. That part of lord Bolingbroke's
fourth eſſay, in which he treats this ſubject, contains, I think, as much as
you will want to know of it at preſent, f. 31 to 34, f. 35 to 38, and will
give you a pretty general idea; though it ſhould be read with that caution
with which whoever deſires not to be miſled will always read the works of a
man who wrote with a ſtrong bias on his mind, and had too much accuſtomed
himſelf to the language of paſſion.
The holy wars are ſuch a continued ſeries of ſuperſtition and madneſs as
is not to be paralleled in hiſtory, and as cannot but appear aſtoniſhing even
to thoſe who fee fartheſt into, and make the greateſt allowance for, the
weakneſs and folly of mankind : if, during the time of this epidemical
madneſs, there ever had been any prince wiſe and great enough to preſerve
himſelf from the contagion, and to take advantage of the folly of his neigh-
bours, he might have made ſuch conqueſts as would have enabled him to
give law to the reſt of Europe ; but not one man in ten thouſand is able
to riſe above the level of the age he lives in. All the princes in Europe
caught the infection, and ſtrove only to outdo each other in all the extra-
vagance of enthuſiaſm. There are ſeveral particular hiſtories of the holy
wars; but the ſhort fketch in VOLTAIRE is fufficient for your prefent pur-.
poſe.
As a taſte for letters naturally gives a curioſity to know the hiſtory of
them, the riſe and progreſs of literature will of courſe be one of the fa..
vourite objects of your attention, and will well deſerve to be ſo; for there is
no hiſtory more intereſting, nor more inſtructive, than that of L'Eſprit Hu-
main.
You will have obſerved that Charlemagne, though illiterate hiinſelf, en-
deavoured to ſpread learning in Europe ; and with that view ordered the
beft Arabic books to be tranſlated: but the confufion that arafe after his-
death
WILLIAM EARL OF MANSFIELD.
21:
!
death foon ended the little he had been able to do for the encouragement of
letters, and plunged the weſtern part of Europe into the darkeſt ignorance,
which laſted, almoſt without interruption, till the reign of Charles the Vth
of France, whoſe reign may be rekoned the firſt dawn of letters. He was
the founder of the famous royal library at Paris ; and the French reckon a
continued ſeries of poets, from his time to the preſent, though, till the
reign of Lewis the XIVth, there was not one that deſerved that name.
The true reſtorers of arts and literature were the Italians (particularly the
Florentines) in the 14th century: the Greeks who, when driven from Con-
ſtantinople by Malomet II. took refuge in Italy, were not (as is commonly
imagined) the firſt authors of this reſtoration, though they contributed
greatly towards it, by teaching the Italians Greek, and opening to them, by
that means, the trueſt and pureſt ſources of all tafte and knowledge. This
you will ſee explained in Voltaire's Differtation upon the Arts and Manners of
the 13th and 14th Centuries, VOL. II. C. LXIX..of his Works. It deſerves to
be read, though he has treated his ſubject fuperficially, and not made it
what it ought to have been made in ſuch hands.
You are now come to that period where modern hiſtory begins to be
really intereſting, and where, conſequently, it will deſerve much greater at-
tention. This period is divided by lord Boling broke into three particular
periods; 1. from about the middle of the 15th century to the end of the
16th ; 2;" from thence to the Pyrenæan treaty; and 3. from thence to the
preſent time.
The firſt of theſe periods, which is the only one I ſhall confider at preſent,
abounds with ſuch variety of great and aſtoniſhing objects, that no eye is
ſtrong enough to take a diſtinct and accurate ſurvey of them at once: a man
finds his attention fo divided among this multiplicity of objects, that he
fcarce knows how to fix it; and theſe objects preſent themſelves under for
many different aſpects, and may be viewed in ſo many different lights, that
he is at a loſs which to chooſe; new ideas flow upon him ſo faſt, that he is.
hardly able to ſeparate and range them in order enough to take that general
view of them which is all you wiſh to do at preſent. To know modern :
hiſtory thoroughly, a man muſt make it the ſtudy of his life ; indeed, it is a
ſcience of ſo vaſt an extent, that I ſhould much doubt, whether a thorough
knowledge is within the reach of the greateſt abilities and moſt indefatigable
application.
It is of great advantage in all branches of learning, but particularly in one
of
2:2
THE LIFE OF
of fo extenſive and intricate a nature, to have a proper clue to your ſtudies ;
and you cannot, I think, find a better than that which lord Bolingbroke has
given in his fixth letter on the ſtudy of hiſtory.
I certainly ſhall not think of meddling with a ſubject he has treated fo
ably; but ſhall only endeavour to ſupply what he has purpoſely omitted,
and point out to you, as far as I am able, the books where you are moſt
likely to find what he directs you to look for.
The hiſtory of Germany is ſo interwoven with, and makes ſo conſiderable
a part of, that of Europe, that it is abſolutely neceſſary to have a general
idea of the conſtitution of the Empire. The beſt ſhort books, that I know
of, upon this ſubject, are, a French eſſay, called, Defcription du Gouvernment
préſent du Corps Germanique, printed in 1741; and Maſcow's Jus publicam ;
but, perhaps, Campbell's Chapter, read with attention, will be enough for
your preſent purpoſe. If hereafter you wiſh to know more of the hiſtory
and conſtitution of it, you muſt make it the object of particular en-
quiry.
You will find in VOLTAIRE, in the Chapters I have croſſed in the Table des
Chapitres, a fuccinct account of the three great events that particularly diſ-
tinguiſh the end of the 15th, and the beginning of the 16th, century, viz.
the diſcoveries made by the Portugueſe, thoſe ſtill more important ones
made by Columbus, and the Reformation : theſe are ſome of thoſe great and
complicated objects I alluded to above. It is ſcarce poſſible to view them
in all their lights, and trace them in all their cauſes and conſequences; but
all you need think of at preſent is to fix a general idea of them in your me-
mory, and lay them up there as an inexhauſtible fund for future reflection.
The League of Cambray is ſo intereſting an event, that you will do well to
read Du Boſs's famous hiſtory of it; and, for a fhort account of the riſe and
growth of the republic of Holland, read Voltaire's 135 c. and the first Chap-
ser of Sir William Temple.
Though the hiſtory of the civil wars of France is admirably written by
Thuanus and Davila, you may, I think, at preſent content yourſelf with
Mezerai and Henault, adding to them Sully's Memoirs, and Perefixe's Life of
Henry the Fourtb; which two books you will read with infinite pleaſure, as
they give the beſt idea that is any where to be found of the true character of
Henry the IVth, which, with all its blemiſhes; is certainly one of the moſt
ſtriking and amiable characters to be met with in hiſtory.
At
A
WILLIAM EARL OF MANSFIELD.
23
+
At the ſame time that you admire Sully's fidelity, and the unſhaken
ſteadineſs and reſolution with which he ſtruggled againſt and checked the
fcandalous abuſes that had crept into the adminiſtration of the finances, you
will obſerve that the ſame auſterity of manners, and ſtiffneſs in opinion, be-
trayed him into falſe and narrow notions about government, and particularly
- about trade and manufactures; and Henry IV. had much larger' views, and
in general judged better than his miniſter whenever his paſſions were not
concerned
I 2.
Chapters crofſed in Voltaire and referred to in the preceding letter:
C. 106. De Leon X. et de l'Egliſe.
7 & 8. De Luther et de Zuingle.
9. Progrès de Lutlieraniſme, en Suede, en Dannemarc, et en Alle
magne..
De Geneve et de Calvin.
14.. De Henri VIII..et dě la Révolution de la Religion en Angleć.
terre..
14. Suite de la Religion en Angleterre:
15. De la Religion en Ecoſſe..
16. De la Religion en France fous François I.
19. Des Découvertes des Portugais.
De Jápon.
22. De Columbo, et de l'Amérique..
23. De Ferdinand Cortez.
24. De la Conquête de Perou.
25% Du premier Voyage autour du Monde."
20.
The Author of thefe ſheets-is-forry, that he cannot vouch for
the correctneſs of the numerous references to antient and modern
authors in theſe letters. He can only preſent them to the public
in as perfect'a ſtate as he had the honor of receiving them from
an ingenious friend, and with all the emendations which the
Rev. Mr. Harper, who fuperintends the extenſive and invaluable
collection of printed books in the Britiſh Muſeum, has, with his
accuſtomed politeneſs, promptitude, and liberality, been enabled
to make
Tas
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To give a new caſt to Mr. Murray's extent of thought, and
to evince, that, however pleaſing and bewitching the flowery
fields of literature were to his well-ſtored mind, he wiſely deter-
mined not to be bewildered therein, and early diſcovered a great
veneration for the advice of Horace,
Onine tulit punétum qui miſcuit utile dulci.
He was called to the bar in Michaelmas term, 1730. In his
career in the purſuit of legal knowledge his aſſiduity foon co-
operated with his ſhining abilities. Two ſupporters like theſe,
in perfect uniſon, not only exempted him from all pecuniary
embarraſſments, which ſlender fortune in fome, and juvenile
indiſcretion in others, too frequently occaſion, but alſo conci-
liated the eſteem, the friendſhip, and patronage, of the great
oracles of the law, who adorned that period, amongſt whom
lord Talbot and lord chancellor Hardwicke were looked up to as
the foſter-fathers of the ſcience.
Inſtead of ſubmitting to the uſual drudgery, as ſome are pleaſed
to deem it, of labouring in the chambers of a ſpecial pleader,
Mr. Murray's motto ſeems to have been " Aut Cicero aut
nullus.'
Early in his legal career he ſtudied the graces of elocution
under one of the greateſt maſters of the age wherein he lived.
Doctor Johnſon, in his life of Pope, ſays, “his voice when he
was young was ſo pleaſing, that Pope was called in fondneſs the
little nightingale.” Under this melodious and great maſter Mr.
Murray practiſed elocution, and may truly be ſaid to have brought
the modulation of an harmonious voice to the higheſt degree of
perfection.
One day he was ſurprized by a gentleman of Lincoln's Inn,
who could take the liberty of entering his rooms without the
ceremonious introduction of a ſervant, in the ſingular act of
practiſing the graces of a ſpeaker at a glaſs, while Pope ſat by in
the character of a friendly preceptor. Mr. Murray on this oc-
caſion
9)
:
-
WILLIAM EARL OF MANSFIELD.
25
caſion paid him the handſome compliment of, Tu es mihi Ma-
cenas!
The great benefit reſulting from an early friendſhip between
Murray and Pope, was, that the young and graceful juriſprudent
could not be more fedulous to acquire éclat in his profeſſion than
the poet was to proclaim in bewitching verſe the reputation of
liis friend.
Biſhop Warburton, in his annotations on Pope's imitation of
the Sixth Epiſtle of the Firſt Book of Horace, addreſſed to Mr.
Murray, elegantly defines the friendſhip ſubſiſting between them
in a ſingle ſentence : “Mr. Pope had all the warmth of affection
for this great lawyer, and indeed no man ever more deſerved to
have a poet for his friend ; in the obtaining of which, as neither
vanity, party, nor fear, had a ſhare, ſo he ſupported his title to it
by all the offices of a generous and true friendſhip.”
A pleaſing inſtance of Mr. Murray's attention to the cauſe of
literature, as well as to his friend Mr. Pope's increaſing fame,
occurred at Cambridge, and occaſioned the following ſhort letter
from the learned and ingenious Mr. Smart, whoſe Odes on the
Supreme Being have immortalized his name:
Sir,
Pem. Hall, Cambridge, the 6th of Nov. 1743.
Mr. Murray having told me that it would, he thought, be agreeable
to you to ſee a good Latin verſion of your Eſſay on Man, and adviſed me to
undertake it, though I know myſelf vaſtly unfit for ſuch a taſk, I will at-
tempt to render any number of lines that you ſhall be pleafed to ſelect from
any part of the work, and as you approve, or diſlike them, will purſue of
drop the undertaking.
To
I am, Sir, with the utmoſt reſpect, yours,
Alexander Pope, Eſq.
C. SMART
I ſhould not have preſumed to have given you this trouble had not Mr.
Murray aſſured me that I might ſafely venture. I have made -bold likewiſe
to ſend you a ſpecimen of a tranſlation of your Effay on Criticiſm, verſe
the 339th.
E
This
26
THE LIFE OF
This elegant tranſlation extends to between forty and fifty lines
of the Eſſay on Criticiſm; but, as the repetition of the whole may
be deemed too great a digreſſion, the author will confine him-
ſelf to the ten laſt lines, which are ſo perfectly juſt and elegant
as to require little apology:
Non ſolum afperitas teneras cave verberet aures,
Sed vox quæque expreſſa tuæ fit mentis inago.
Lene canat Zephyrus ſuſpirans blanda politis
Lævius in numeris labatur, læve fluentuin;
At reboat, furit æftuat æmula Muſa, ſonoris
Littoribus cum rauca horrendum vapulat unda.
Quando eft faxum Ajax vaſtå vi volvere adortus
Tardè incedat verſus, multum perque laborem ;
Non ita, five Camilla fali viridaria raſit
Sive levis, leviterque volat fine fraude per arvum.
The few lines of Pope, which are applicable to his friend's
riſing fame, are too appoſite to be omitted :
If not ſo pleas'd, at council-board rejoice
To ſee their judgements hang upon thy voice.
Shall one whom nature, learning, birth, confpir’d
To form, not to admire, but be admir'd,
Sigh! while his Chloe, blind to wit and worth,
Weds the rich dulneſs of ſome ſon of earth?
Pope, who well knew the vivacity of his young friend, and
the brilliancy of his parts, took a fair occaſion towards the con-
cluſion of his maſterly work * to awaken reflection :
Grac'd, as thou art, with all the power of words,
So known, ſo honour'd, at the Houſe of Lords.
Conſpicuous ſcene ! another yet is nigh,
More filent far, where kings and poets lie;
* Imitation of the Sixth Epiſtle of the Firſt Book of Horace.
Wherc
1
WILLIAM EARL OF MANSFIELD.
27
Where Murray, long enough his country's pride,
Shall be no more than Tully or an Hyde.
1
Young and gay, and ſeduced, as he was, by ſeeing how defpo-
tically Pope reigned in the regions of literature, is it matter of
wonder, that ſeveral of the friends of Mr. Murray, on his en-
trance into life, ſhould be not a little apprehenſive of his having
manifeſted too great an attention to the Belles Lettres and to the
regions of pleaſure ?
Pope himſelf bears teſtimony of the gay life his friend was in-
clined to lead, in his imitation of the firſt Ode of the fourth Book
of Horace, in the following lively and beautiful lines addreſſed to
Venus :
1
.
$
To Number Five * direct your doves,
There ſpread round Murray all your blooming loves,
Noble and young, who ſtrikes the heart
With
every ſprightly, every decent part;
Equal the injur'd to defend,
To charm the miſtreſs, or to fix the friend.
He, with a hundred arts refin'd,
Shall ſtretch thy conqueſts over half the kind.
To him each rival ſhall ſubmit,
Make but his riches equal to his wit;
Then ſhall thy form the marble grace,
Thy Grecian form, and Chloe lend the face ;
His houſe, emboſom'd in the grove,
Sacred to ſocial life and ſocial love,
Shall glitter o'er the pendent green,
Where Thames reflects the viſionary ſcene :
Thither the filver founding lyres
Shall call the ſmiling Loves and young Deſires;
* The number of Mr. Murray's chambers in Lincoln's Inn.
E 2
There
!
28
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There every Grace and Muſe ſhall throng,
Exalt the dance, or animate the ſong;
There youths and nymphs, in confort gay,
Shall hail the riſing, cloſe the parting day.
The fears, however, of Mr. Murray's friends, that the gaiety
of his heart would militate againſt that patient aſſiduity, ſo abſo-
lutely neceſſary to improvement and ſucceſs in his legal character,
were ſoon laid aſide, by his having been early employed in buſi-
neſs of ſerious importance, which fully engaged not only his at-
tention, but alſo his affections, ſince human nature would have
revolted at the trials in which he perſevered early in life, if he
had not really loved his profeffion.
In 1732, we find our Tyro in the law aſſociated with the two
ſhining lights in the Court of Chancery, as they were emphati-
cally ſtyled, lord Talbot and lord Hardwicke, then his Majeſty's
attorney and ſolicitor general, in a cauſe of appeal heard at the
bar of the Houſe of Lords on the 12th of March, 1732-3, relating
to the purchaſe of fome South-Sea ſtock in the memorable year
1720.
P. YORKE.
The counſel for the appellant were
WILL. HAMILTON.
For the reſpondent,
FC. TALBOT.
(W. MURRAY.
A fine and fertile field this for our Tyro to travel over, to explore,
and, by exploring, to exerciſe his dawning genius and opening
talents. A year pregnant with credulity, circumvention, and
fraud, could not fail, under the auſpices of a Talbot, to be
ſingularly fortunate and favorable to his young friend and colo
league.
A reſpite of four days only intervened before Mr. Murray ap-
peared again at the ſame bar, and was claſſed with the ſame
great
colleagues as counſel for the young marquis of Annandale. From
fo
?
WILLIAM EARL OF MANSFIELD.
29
fo fplendid and ſo early an introduction into buſineſs ; from his
being aſſociated in his maiden cauſes with the two greateſt lu-
minaries of the law, we may conclude, with Horace, Nofcitur ex
ſociis. May we not expect to find him frequently in the ſame
good company ?
Accordingly, in the following year, 1733, we find him engaged
as counſel in three appeals ; and in 1734 in a ſtill greater num-
ber.
The ſubject of one of thoſe appeals being of general, (the
author begs leave to recall the word) of univerſal import, tend-
ing to define the relative duties between a father and his ſon *
the author is inclined to think, that a brief ſtatement of it will
be acceptable to the curious reader, eſpecially as it will be de-
tailed
2.
* Sir Thomas Moncrief, baronet, was the appellant.
Thomas Moncrief, Eſq. the reſpondent.
The following is merely a ſhort extract from the appellant's caſe:
Sir Thomas having five children, a ſmall eſtate of between 5 and 600 l.
per annum, and poſſeſſed of about 5000 l. perſonal eſtate, gave his eldeſt fon
a liberal education, to enable him to make his way in the world. He
diſobliged his father by his bad conduct frequently, and finally married
without his conſent. The father, incenſed at his conduct, refuſed to ſee
him till by his future behaviour he ſhould deſerve a reconciliation, allowed
him annually (without aſking any part of the lady's fortune) 2000 marks
Scotch, equal to unl. and a fraction ſterling. Diſcontented with this al-
lowance, the ſon applied to the court of fefſion for a greater; and, on the
father's refuſal to diſcover the amount of his real and perſonal eſtate, the
fon gave in an exaggerated account from his imagination, and obtained an
interlocutor for payment of 2001, a year ſterling. From this interlocutor
Şir Thomas appealed. Some of the forcible reaſons, aſſigned by his counſel
Mr. Murray, were,
Reaſon I. For that (without arguing whether parents are, by the law of
nature, obliged to maintain their children in idleneſs, when they come to age,
and may, if induſtrious, ſhift for themſelves; or whether the ſon, who
hearkens not to the voice of his father,” which the Law of Moſes thought
worthy of death, has not forfeited, by diſobedience, the title Nature gave
him to ſupport from his father ;) under the circumſtances of this caſe, there
is no colour for the reſpondent's claim, the appellant having voluntarily al-
lowed,
re
66.
30
THE LIFE OF
tailed principally with a view to introduce the very ſtriking and
folid reaſons aſſigned by Mr. Murray and his colleague with ſuc-
ceſs, on the one hand, and to give profit and pleaſure to thoſe
readers, on the other, who ſtand in loco parentis.
In
lowed, and punctually paid, him what was ſufficient to ſupply him not
only with the neceſſaries, but in that cheap country with all the conve-
niences, of life.
II. Fathers within their private families were, from the beginning through-
out the world, eſteemed to have a ſupreme power, and were looked upon as
lords and kings in their own houſes; but, when they came to be reſtrained by
the municipal law of nations, from expoſing their children or putting them
to death, it followed as a conſequence, that they ſhould be obliged to main-
tain them, while they were unable to provide for themſelves; but that a ſon,
beyond a neceſſary maintenance, has a right to a determinate part of his fa-
ther's eſtate to waſte in ſuperfluities, is what, before this action, was never
pretended in any country; it is apprehended to be contrary to the law of
Scotland, and to have no foundation in reaſon, and would be productive of
great inconveniences.
1. There is no doubt but that any man, who is proprietor of an eſtate,
may, by will, diſinherit a fon; which could not be but upon a ſuppoſition
that he had abfolute power over it during his life, and might diſpoſe of it
without controul.
2. It would invert the order of nature, and ſubject parents to their chil-
dren, if any child could, from caprice or undutifulneſs, force the father, as
the appellant has been obliged to do in the preſent caſe, to expoſe his pri-
vate circumftances to the world, which it might be an irreparable prejudice
to him to divulge.
3. As the father only knows what fortune he intends for his ſon hereafter,
he only can judge what maintenance is ſuitable to his condition; becauſe
living in plenty for the preſent, might unfit him for his future ſituation.
4. There is little danger that parents ſhould uſe any power, they may
have over their children, with too much rigour; the exceſs is ſeldom on the
ſevere ſide, a ſtrong bias drawing the other way. But if a child, whether
dutiful or undutiful, may demand a certain quantity of his father's eſtate,
the father is deprived of the power of rewarding virtue or diſcouraging vice
in his children; he will have no means to enforce his directions with regard
to his ſon's education, place of abode, or courſe of life: his authority may
ſafely be ſighted, when the ſon is ſure of getting whatever his circum-
ſtances can afford, whether he will or not.
III.
I
WILLIAM EARL OF MANSFIELD.
31
marco
In the ſame year he appeared at the bar of the houſe of lords
to defend the infant-fon of colonel Chartres (whoſe memory
is perpetuated, though not embalmed, by a monumental in-
ſcription from the pen of Dr. Arbuthnot, deeply dipt in gall)
againſt a charge of uſury imputed to the father. One of the
reaſons aſſigned in his defence by his counſel was of a peculiar
kind; viz. that the colonel kept no regular accounts how his
money was lent out, or how it was paid. The natural con-
cluſion to be drawn from theſe premiſſes was, that, at the diſ-
tance of 10 or 12 years, he might forget the conſideration upon
which the bond was given.
It is not to be expected that Mr. Murray was equally ſucceſsful
in this as he was in the former animated and ſtrong appeal.
No illuſtration here from the Law of Moſes ! None from the
Law of Nations ! No apparent, no real, animation adorned the
reaſons adduced in ſupport of the laſt appeal. The beſt and
only excuſe which could be made was made in plain lan-
guage, as we have before ſtated ; and the cauſe of the cunning
unaccountable Gripus was left to its fate.
It would not have been very ſurprizing if the keen ſatiriſt, ini
his inimitable epitaph, had availed himſelf of this circumſtance,
III. Nature knows no diſtinction between the eldeſt and the youngeſt
child, they are all equally intitled to the parent's care and affection; and
upon the law of nature only is the preſent action brought, there being no
poſitive ſtatute in Scotland which requires parents to maintain their children,
or which, in that caſe, gives any preference to the eldeſt. The appellant
has four other children, who have therefore the ſame right to maintenance
that the reſpondent has ; which ſhews the exorbitancy of the proportion al-
lowed him by the decree complained of, which amounts to near a fourth of
the income of the appellant's eſtate, real and perſonal.
Counſel for the reſpondent not appearing, the interlocutors complained
off; and, the appellant's petition to the lords of feffion being read, the inter-
locutors were ſo far varied as that the allowance for the maintenance of the
reſpondent be modified to 2000 marks, Scotts, per annum.
Nota. This is the preciſe ſum allowed primarily by the father.
by
32
THE LIFE OF
:
by adding to the long catalogue of the Colonel's other vices,
that he was a moſt unaccountable man, who, in order to avoid
detection as an uſurer, kept no accounts. The conſummate
wiſdom of this conduct, in a great uſurer, may be aſſimilated
with that of a woodcock, who, as naturaliſts relate, hides its
head in any hollow receſs, and thence fagaciouſly concludes that
its whole body is.concealed.
În the year 1735, Mr. Murray was not only deeply engaged
in buſineſs himfelf, but was alſo fedulous to introduce into active
life his friend Mr. Booth, then a young conveyancer; which Mr.
Murray's letter of the 25th of October, 1735, worthy of the
younger Pliny, will evince.
My dear friend,
Lincoln's Inn, 25th Oct. 1735.
I received yours laſt night. I cannot but applaud the
protection you give a ſiſter, whom I know you love tenderly, yet it ſeems
a little raſh to carry your beneficence ſo far as to dry up the ſource of all
future generoſity; and I am ſure it is greatly againſt the intereſt of every
one who has the leaſt dependence upon you, that you ſhould do any thing
which makes it at all difficult for you to perſevere in a way where you muſt
at laſt ſucceed. Of this I have no doubt; and, therefore, it is as ſuper-
fluous to add my advice for your coming to town immediately as it would
be to tell you that I omit no opportunity of mentioning your name and pro-
moting your intereſt. You cannot fail, but by ſtaying in the country, and
ſuffering people who have not half your merit to ſtep in before you.
With regard to every thing you ſay of Mr. Pigot, we will talk more at
large hereafter; I as little think he will bring you into his buſineſs while
he lives as that you can be kept out of a great part of it when he dies. I
am at preſent conſulted upon a deviſe-ſettlement of his, whereby a great
eftate is left to a noble Roman Catholic family, which I am very clear is
good for nothing. Can you contrive a way by which an eſtate may be left
to a Papiſt? Though I have no more doubt of the caſe put to me than whe-
ther the ſun ſhines at noon, I told the gentleman who conſulted me,
I
would
#
WILLIAM EARL OF MANSFIELD.
33
would willingly ſtay to talk with a Roman Catholic conveyancer, &c. whom
I expected ſoon in town, and named you to him.
I own I am deſirous you ſhould come to town; and, be aſſured, the beſt
ſervice you can do your friends is to put yourſelf in a way to ſerve them
effectually. As to any preſent occafions you have, you know where to com-
mand while I have a ſhilling.
I have not feen Prowſe nor Rigdum ſince I had yours, but I am ſure they
are both your ſervantš very much. Nil mihi reſcribas, attamen ipfe veni.
I am, I do aſſure you, with great cordiality and eſteem,
Dear Booth,
Your affectionate friend and faithful ſervant,
W. MURRAY.
"
}
We find, froni no leſs authority than that of lord Mansfield
himſelf, that, in the year 1736, a great queſtion on the law of
nations was agitated before lord chancellor Talbot, wherein Mr.
Murray was counſel.
" I remember (ſaid his lordſhip in Eaſter term, 1754), in a
caſe before lord Talbot, of Buvot v. Barbut, in 1736, upon a
motion to diſcharge the defendant, (who was in execution for
not performing a decree,) becauſe he was agent of commerce,
commiſſioned by the king of Pruſſia, and received here as fuch;
the matter was very elaborately argued at the bar ; and a folemn
deliberate opinion given by the court. Theſe queſtions aroſe and
•were diſcuſſed : whether a miniſter could, by any act or acts,
wave his privilege? Whether being a trader was any objection
againſt allowing privilege to a miniſter perſonally? Whether an
agent of commerce, or even a conſul, was intitled to the pri-
vileges of a public miniſter ? What was the rule of deciſion: the
act of parliament, or the law of nations ? Lord Talbot de-
clared a clear opinion : that the law of nations, in its full ex-
tent, was part of the law of England ; that the act of parlia-
ment was declaratory, and occaſioned by a particular incident.
That the law of nations was to be collected from the practice of
different nations, and the authority of writers. Accordingly he
argued
1
F
34
THE LIFE OF
-
argued and determined from ſuch inſtances, and the authority
of Grotius, Barbeyrac, Binkerſhook, Wiquefort, &c. there
being no Engliſh writer of eminence upon the ſubject. I was
counſel in this caſe, and have a full note of it. I remember too
lord Hardwicke's declaring his opinion to the ſame effect, and
denying that lord chief juſtice Holt ever had any doubt as to the
law of nations being part of the law of England, upon the oc-
caſion of the arreſt of the Ruſſian ambaſſador."
The conſequences of the arreſt of the Ruſſian ambaſſador
are not a little curious, as they are related by lord Mansfield.
“ This privilege of foreign minifters, and their domeſtic ſer-
vants, depends upon the law of nations. The act of parliament
of 7th of Anne, C. 12, is declaratory of it. All that is new in
this act is the clauſe which gives a ſummary juriſdiction for the
puniſhment of the infractors of this law.
“ The act of parliament was made upon occaſion of the Czar's
ambaſſador being arreſted. If proper application had been im-
mediately made for his diſcharge from the arreſt, the matter
might, and doubtleſs would, have been ſet right; inſtead of that,
bail was put in before any complaint was made. An information
was filed by the then attorney general, againſt the perſons who
were thus concerned, as infractors of the law of nations ;
and
they were found guilty, but never brought up to judgement.
“ The Czar took the matter up highly. No puniſhment would
have been' thought by him an adequate reparation. Such a ſen-
tence as the court could have given, he might have thought a
freſh inſult.
" Another expedient was fallen upon and agreed to. This act
of parliament, paſſed as an apology and humiliation from the
whole nation, was ſent to the Czar, finely, illuminated, by an am-
bajador extraordinary, who made excuſes in a folemn oration."
deal relative to this tranſaction and negociation appears
in the annals of that time.
A great
173
-
WILLIAM EARL OF MANSFIELD.
35
1737
The natural and acquired advantages, which characterized
the eloquence of Mr. Murray, were ſo conſpicuous, even on the
ſpur of occaſion, and his perception was fo quick, as to enable
him to ſhine upon any emergency. A circumſtance of this
kind occurred, in the year 1737, in the celebrated cauſe between
Theophilus Cibber and Mr. Sloper, wherein Mr. Murray was
the junior counſel for the defendant. The leading counſel being
fuddenly ſeized with a fit in the court, the duty of the ſenior
devolved on the junior counſel, who at firſt modeſtly declined it,
for want of time to ſtudy the caſe. The court, to indulge him,
poſtponed the cauſe for about an hour; and, only with this
preparation, he made ſo able and eloquent a defence, as not only
to reduce the defendant's damages to a mere trifle, but to gain
for himſelf the reputation, which he highly deſerved, of a moſt
prompt, perfpicuous, and eloquent pleader.
Among other effuſions of wit, and leading features of genius,
Mr. Murray obſerved, “ that the plaintiff, by his counſel, ſhewed
himſelf related to William of Wickham, but would have been
better intitled to have claimed that alliance, if he had obſerved
William of Wickham's motto, That morals make the man! the
words are manners make the man; but manners are there in-
tended to ſignify morals. Again : the plaintiff tells his ſervants,
that Mr. Sloper is a good-natured boy ; he makes a boy of him.
He takes his money, lets him maintain his family, reſigns his
wife to him, and then comes to a court of juſtice, and to a
jury of gentlemen for reparation in damages !
“It devolves on you, gentlemen, to conſider the conſequences of
giving damages in a caſe of this nature. It is of very ſerious
conſequence, and would be pregnant with infinite miſchief, if
it ſhould once come to be underſtood in the world that two art.
ful people, being huſband and wife, might lay a ſnare for the af-
fections of an unwary young gentleman, take a ſum of money
F 2
from
:
1
i
T THE LIFE OF
OF
36
from him; and, when he could part with no more, then come
for a ſecond ſum to a court of juſtice.
66 That he deſired to be underſtood as by no means an advo-
cate for the immorality of the action ; for this is not a profecu-
tion for the public, or to puniſh immorality; this is only the
queſtion, whether the defendant has injured the plaintiff; and
certainly the plaintiff cannot be injured, if he has not only
conſentéd, but has even taken a price. However, gentlemen of
the jury, if it ſhould be thought requiſite to find a verdict for the
plaintiff, we have not a denomination of coin ſmall enough to
be given in damages.”
The jury did not give the ſmalleſt piece of coin as damages,
but adopted the hint, by giving ten pounds, or a piece of bank
paper of the ſmalleſt value at that period in circulation.
The familiar friends of lord Mansfield have frequently heard
him recur with ſingular pleaſure to his ſucceſs in this cauſe, and
the conſequences which fowed from it. His own perſpicuous
manner of introducing it cannot fail to pleaſe, and raiſe emu-
lation in young men of genius.
From this trivial accident he was accuſtomed to ſay :
ſineſs poured in upon me on all ſides ; and, from a few hun-
dred pounds a year, I fortunately found myſelf
, in every ſubſe-
quent year, in poſſeſſion of thouſands."
It may be deemed ſomewhat curious to obſerve, that a
fimilar accident, however trivial, bröught another great lumi-
nary in the law into full buſineſs. Mr. Dunning (afterwards
lord ASHBURTON) had perſevered in going the Weſtern circuit
fix or ſeven years, without any great emolument, until
of the leading counſel on the circuit, who was afflicted with
the gout, and who having diſcovered abilities in,
gaged, our Tyro to read and make obſervations on his briefs ;
on briefs which Mr. Serjeant Glynn's feeble hands could not
ſupport. He handed them over to his young friend, who'fhone
ſo much in his new ſphere, as from that day, and from the bu-
fineſs
66 bu-
one.
.
had en-
1
WILLIAM EARL OF MANSFIELD.
37
A
1
ſineſs of general warrants, which trod on the heels of it, his
fame, like another Murray's, was recorded. A more recent in-
ſtance of patronage in a law-lord, who has twice added luſtre to
the firſt civil employment in this kingdom, ought not to be
paſſed over in ſilence, ſince it relates to one of the ſhining or-
naments of the profeſſion, and might be made a prominent
feature in any mirror held up to raiſe laudable emulation in the
Tyros of promiſe at the bar : but delicacy to two great charac-
ters admoniſhes the author merely to ſtate the ſimple facts. In
the year 1781, the great merit of the young barriſter was beſt
known to a few ſelect friends, of whom the late Mr. Lee, for-
merly his majeſty's attorney general, was one--(one whoſe phi-
lanthropy, and goodneſs of heart, will ever be revered). He re-
joiced in having a fair opportunity of introducing his young
friend to a patron, whoſe power was equal to his inclination to
foſter and reward merit. In the following year, the fair emolu-
ments of his profeſſion roſe in a tenfold degree; and it is plea-
ſing to add, that the ſucceeding years have been diſtinguiſhed, in
every reſpect, with the greateſt reputation, and with high pro
feſſional honors.
In the ſame year, 1737, we find a parliamentary inveſtigation
of an important buſineſs, which required all the eloquence, all
the powers, of our juriſprudent as a pleader, in mitigation of
puniſhment. “ Whereas, upon Tueſday the 7th of September,
1736, there was a moſt feditious and outrageous riot in the city
of Edinburg, notoriouſly concerted and carried on by great
numbers of wicked, diſorderly, and blood-thirſty, perſons, who
did, with open force and violence, ſeize the arms of the city-
guard, poſſeſs themſelves of the city-gates, and, by ſetting fire to
and breaking open the door of the Toll-Booth of the ſaid
city, did unlawfully and audaciouſly reſcue and ſet at large ſe-
veral criminals therein confined: and whereas captain John
Porteous, then a priſoner there, under ſentence of death, but
graciouſly reprieved by the queen's moſt excellent majeſty, as
guara
.
4
+
38
THE LIFE OF
guardian of the realm, was, by the rioters, in a cruel manner,
dragged from the priſon, and moſt barbarouſly hanged by the
neck, and murdered in manifeſt violation of the public peace, in
defiance and ſubverſion of legal government, in high contempt
of our ſovereign lord the king and his laws, and to the moſt
preſumptuous and unparalleled obſtruction of the royal mercy ;
and for ſome time before the committing of the ſaid murder and
riot it was commonly reported in Edinburgh, that ſome fuch
atrocious fact would be attempted, which, by proper care in the
magiſtrates, citizens, and inhabitants of the ſaid city, might have
been prevented; notwithſtanding which, Alexander Wilſon, Eſq.
the provoſt of the ſaid city, and then actually reſident in the ſaid
city, and fully apprized of the ſaid wicked deſign, did not take
any precautions to prevent the ſaid murder and riot, nor uſe the
proper or neceſſary means to ſuppreſs the ſame, or to preſerve the
peace of the ſaid city, or, after the perpetration of the ſaid fact, to
diſcover, apprehend, or ſecure the authors or abettors thereof, in
manifeſt violation of the truſt and duty of his office of chief ma-
giſtrate of the ſaid city ; nor were any means or endeavours uſed
by the citizens and inhabitants of the ſaid city to prevent or fup-
preſs the ſaid notorious riot, or to hinder the ſaid inhuman and
barbarous murder, or to diſcover the perſons concerned therein, in
order to bring them to juſtice.”. Such are the ſerious charges enu-
merated in the preamble to a bill of pains and penalties brought into
parliament, and which, in the year 1737, after various modifica-
tions, and a firm and unabated oppoſition in every ſtage of its pro-
greſs, was paſſed into a law, under the title of “ An Act to dif-
able Alexander Wilſon, Eſq. from taking, holding, or enjoying
any Office of Magiſtracy in the City of Edinburgh, or elſewhere
in Great Britain, and for impoſing a Fine upon the Corporation
of the ſaid City *.”
--
1
* 10 George II. c. 34.
In
!
A
39
WILLIAM EARL OF MANSFIELD.
:.
)
In both houſes of parliament Mr. Murray was employed as
counſel, and acquitted himſelf ſo much to the ſatisfaction of his
clients, that afterwards, in September 1743, as we are informed
by Boyſe in his Hiſtorical Review of the tranſaction of Europe,
1747 *, Mr. Murray was preſented with the freedom of Edin-
burgh in a gold box, profeſſedly, as it was declared, for his fig-
nal ſervices by his ſpeeches in both houſes of parliament, in the
conduct of that buſineſs.
On this occaſion a youth of fourteen tried the ſtrength of his
infant Muſe, by addreſſing the following little poem to Mr.
Murray :
Hail, glorious youth ! diſtinguiſh'd virtue, hail!
Prop of your country and the public weal!
Fain would my infant Muſe your praiſe proclaim,
To Thew her ardor, not to raiſe your fame :
Your fame exalted far above your praiſe,
Fame which no Muſe, no Bard, can higher raiſe.
Oh! with that tranſport were my breaſt inſpir’d,
Which in the public cauſe your boſom fir'd !
Or were the numbers of my youthful ſong
Soft as the accents of your graceful tongue !
Then might I juftly ſet your praiſes forth,
And then might celebrate your matchleſs worth.
But you are ſtill ſuperior to applauſe,
By honor taught to aid your country's cauſe;
Your ſoul, a ſtranger to vile avarice,
To ſcreen the guilty thinks a ſordid vice;
For which your country does your praiſe proclaim,
Augment your glory, and renew your fame.
Tyrants may ſternly frown, and courts oppoſe,
And crouds of ſervile ſouls turn honor's foes ;
1
* Vol. I, p. 403.
Thie
na
40
THE LIFE OF
:
The love of gain may venal vices rule,
And drown the ſpark that fires the patriot ſoul ;
Nor courts, nor bribes, nor even a royal frown--
Can make your tongue the public cauſe diſown.
Oh! durft my tow'ring liopes attempt your height,
And trace the mazes of your glorious flight !
Oh! durſt I hope to ſerve mankind like thee,
Protect the harmleſs, and fet nations free!
But theſe are bleſſings Heaven beſtows on few,
Bleffings which few attain, nor all purſue.
Go on, brave youth! enjoy uncommon fate,
And ſhine ſuperior in the high debate :
Your cauſe is glorious, freedom and the ſtate.
Go, and your morals to the laſt maintain,
While we theſe virtues which we can't attain
In
you
with ever thankful lips approve,
And envy's loft in gratitude and love.
1
}
G. E-t.
1
{
1738.
On the 20th of November, 1738, he married lady Elizabeth
Finch, one of the ſix daughters of Daniel Earl of Winchelſea ;
a marriage, which added fortune and ſplendid family-con-
nections to the advantages of noble birth, and great fame, which
Mr. Murray previouſly poſſeſſed.
With this lady he lived in great harmony and domeſtic hap-
pineſs almoſt half a century. Lady Mansfield, who was exem-
plary through life in diligent, uniform, and unremitted attention
to the diſcharge of her domeſtic concerns, and of every religious
duty, died the roth of April, 1784.
In the ſame year, 1738, there were fifteen or fixteen appeals
heard and determined in the Houſe of Lords, and in no leſs than
eleven of that number was Mr. Murray employed as counſel, either
for the appellants or reſpondents. His friend and panegyriſt, Mr.
Pope, might therefore with ſtrict propriety ſay of him
So known, ſo honor'd, at the Houſe of Lords.
1739
.
WILLIAM EARL OF MANSFIELD.
4 i
1739 and 1740.
In the years 1739 and 1740, we find Mr. Murray engaged in
thirty caſes of appeal to the Houſe of Lords ; a greater number,
we preſume, than in the courſe of the preſent century has, in any
two fucceeding years, fallen to the lot of any one of the moft
eminent counſel at the bar, thoſe great luminaries Talbot and
Yorke not excepted ; ſo rapid, fo extenſive, and ſo unparalleled
was the ſucceſs of Mr. Murray! And when it is conſidered,
that ten years only intervened between the commencement of
his practice at the Chancery bar in 1732, and his appointment to
the office of ſolicitor-general in 1742, a very flattering and fair
concluſion may be drawn, that his legal fame and his extenſive
practice were not confined to the Houſe of Lords. One of thoſe
caſes of appeal is, it muſt be confeſſed, of a complection which
deſerves particular notice*, Caſes of appeal to this high court of
judi.
* It is that of an Iriſh widow, who claimed dower out of the eſtate of her
late huſband. This caſe depended entirely on the conſtruction of an act of par-
liainent made in Ireland in the ſixth year of the reign of queen Anne, c. 16.
by which it was enacted, That if any perſon or perſons ſhould, by any ſub-
tle means, or ſecret infinuations and deluſions, threats or menaces, perſuade
or procure the ſon and heir apparent, or other ſon of any perſon or perſons
having lands, tenements, or hereditaments, of the yearly value of 50l. or
perſonal eſtate of the value of 5ool. or ſhould in manner aforeſaid perſuade
or procure the eldeſt ſon, or any other ſon of any perſon or perſons deceaſed,
to contract matrimony without the privity or conſent of the parents or guar-
dians of ſuch eldeſt or other ſon, and ſuch matrimony be had as aforeſaid
before ſuch ſon attained the age of twenty-one years, every ſuch perſon or
perſons contracting matrimony without the privity and conſent of ſuch pa-
rent or guardian ; and in caſe there be no parent or guardian appointed,
then and in ſuch caſe of the lord chancellor, lord keeper, or commiſſioners of
the great feal for the time being; ſhould be, and was thereby, rendered incapa-
ble, and for ever diſabled, to ſue for, recover, or demand any dower,
thirds, or any other part of the real or perſonal eſtate of ſuch ſon or fons,
or claim or demand any jointure or other proviſion out of the real or per-
ſonal eſtate of ſuch ſon or fons, made to, or in truſt for her, by any will,
deed, or. ſettlement whatſoever.
In 1-726 the defendant Catharine, who was the widow of John Kent de-
ceaſed, brought her writ of dower in the court of Common Pleas in Ireland
againſt the plaintiffs, thereby demanding her third of certain lands in Kil-
G
kenny,
THE LIFE OF
judicature are generally confined to ſubjects fo private, local, and
unintereſting to the public, as to have precluded the author of
theſe ſheets from attempting even a ſhort analyſis of thoſe wherein
Mr
kenny, which were the freehold and inheritance of her huſband. The plain-
tiffs obtained leave to plead double. Each put in two ſeveral pleas. The
firſt, that John Kent was not feiſed of ſuch an eſtate in the lands as was
dowable, and iſſue was joined upon that fact. The fecond plea was, that
Catharine, on the firſt of May, 1721, by ſubtle means, ſecret inſinuations
and deluſions, threats and menaces, perſuaded and procured the faid John
Kent, her late huſband, and the eldeſt ſon and heir apparent of John Kent
the elder, to contract matrimony with her, without the privity or conſent of
the ſaid John Kent the elder, who was then alive, and had lands and tene-
ments in fee fimple, of the yearly value of sol. and above; and that the ſaid
John Kent, formerly the huſband of the ſaid Catharine, was then of the age
of eighteen years and no more, and never had any guardian except his
father; and that neither the lord chancellor of Ireland, nor the keeper of the
great ſeal of Ireland for the time being, conſented to the ſaid marriage.
Catharine replied to the ſecond plea, that ſhe did not, by ſubtle means, &c.
perſuade or procure John Kent to contract matrimony with her without the
privity and conſent of his father; and they joined iffue. Both the iſſues
were tried at the Lent aſſizes in 1727; and as to the firſt, the jury found,
that the huſband died feiſed in fee ſimple of lands, the third part whereof
was of the yearly value of 791. 55. gd. And as to the ſecond plea, the jury
found a ſpecial verdict to this effect : That Catharine contracted matrimony
with the ſaid John Kent without the privity of her huſband's father ; that
her huſband was under the age of twenty-one at the time of the marriage,
and was the eldeſt ſon and heir apparent of his father, who was ſeiſed of
lands in fee fimple of the yearly value of 50l. and upwards, but that Catha-
rine did not perſuade or procure John Kent to contract matrimony with her
by ſubtle means or ſecret infinuations, deluſions, threats, or menaces. In
Michaelmas Term, 1727, the court of Common Pleas, after ſeveral arguments,
were of opinion, that Catharine was entitled to her dower, and gave judge-
ment accordingly.
The opponents brought a writ of error in the King's Bench in Ireland;
and, after various proceedings in 1731, judgement was affirmed in the
King's Bench in Ireland. Notwithſtanding theſe concurrent determinations,
a writ of error was brought in the King's Bench in England, and in 1733
the judgement out of the Common Pleas in Ireland was affirmed. Novem
ber 1734, a writ of error was returnable in the Houſe of Lords, and, by the
death of one of the plaintiffs in error, a petition in January 1735 was pre-
fented to enlarge the time for bringing a new writ of error. In 1736, the
defendant Catharine was innocently the cauſe of ſome delay, by marrying
Robert Whitby, a fecond huſband; but the cauſe being revived, and Kent
and
--
WILLIAM EARL OF MANSFIELD.
43
Mr. Murray was early engaged as counſel, except in one or two
ſtriking inſtances.
and May having made default in Hilary. Term 1736, the court of King's
Bench in Ireland gave judgement, that Robert Whitby and Catharine his
wife ſhould have ſeiſin of her dower.
On the 12th of March, 1736, John Kent and James May brought a writ
of error upon that judgement, returnable in parliament, which, on the 30th
of March, 1738, was, by the Houſe of Lords, declared to be null and
void, and the ſame was ordered to be quaſhed, becauſe the record could not
be removed into the Houſe of Lords here without paſſing through the court
of King's Bench in England ; and accordingly, the plaintiff in error brought
a writ of error, returnable in that court; and in Michaelmas Terin, 1738, the
judgement of the court of King's Bench in Ireland was affirmed without
op-
poſition.
The plaintiffs in error have brought a writ of error in parliament, and
have aſſigned the general errors; and Robert Whitby and Catharine his wife
have put in a joinder in error.
Mr. and Mrs. Whitby humbly hoped that, after ſo many determinations
in their favor, the judgement of the court of King's Bench in England
would be affirmed, for the following obvious reaſons, among ſeveral others :
I. That, as Catharine Whitby cannot be ſaid to have been guilty of
any offence againſt the ſtatute, there was no foundation to deprive her
of her juſt right.
II. Becauſe the act of parliament, being in nature of a penal ſtatute,
ought to be conſtrued ſtrictly, eſpecially in the caſe of dower,
which has always been very much favored in law.
In this caſe they were not diſappointed; the lords affirmed judge-
ment in her favor, with rool. coſts.
We have now travelled through the hiſtory of a lady's ſuit at law for the re-
covery of her dower, purſued it through all its windings and labyrinths in
Ireland and in England, and have fortunately brought it to a ſucceſsful con-
cluſion. How forcibly muſt the many years litigation in the cauſe have
ftruck the vigorous mind of our young juriſprudent! Muſt not the long
delay, the obſtinate perſeverance, and the unrelenting perſecution of her
opponents, have been deemed by her animated and very able counſel, Mr.
Murray, to have been vexatious, oppreſſive, productive of inconvenience,
and of injuries which ought, by all poſſible means, to be prevented in
future?
The ladies of Great Britain may with great reaſon triumph, that no delay
of a ſimilar nature can be found upon the records of the earl of Mansfield's
adminiſtration of juſtice in the court of King's Bench in England. And we
beg permiſſion to add, that the ladies of Ireland may in their turn rejoice,
that the ſame lord chief juſtice, who ultimately conducted Mrs. Whitby's
cauſe to a deſirable concluſion, lived long enough to ſee the right of appeał
from the courts of judicature in Ireland to thoſe in England aboliſhed.
Par
G 2
porten
THE LIFE OF
:
Par nobile Fratrum !
1
The two great Luminaries of the State ;
Mr. PITT, late EARL of CHATHAM,
and
Mr. MURRAY, late EARL of MANSFIELD.
.
To ſhew the coincidence of the characters of theſe illuſtrious
men, the following brief ſketch is with great diffidence attempted.
In their juvenile academical exerciſes they were generous rivals.
They commenced their political life nearly at the ſame period,
were generally oppoſed to each other in the Houſe of Commons,
and were rivals for pre-eminence.
Mr. Pitt, the great oppoſer of Sir Robert Walpole's and of
Mr. Pelham's adminiſtrations, took his feat in the houſe as a
member for Old Sarum in 1740.
Mr. Murray, having previouſly and prudently determined to
eſtabliſh his fame in the line of his profeſſion, before he com-
menced his political career, did not take his ſeat in parliament
as member for Boroughbridge till the year 1742*, ſoon after he
had been appointed his Majeſty's folicitor-general. The reaſon
he aſſigned for reſiſting the ſolicitation of his friends to fit in
par-
liament, ſome years antecedent to that period, was, that he
*
22 Nov. 1742, the houſe ordered a new writ for electing a burgeſs for
Boroughbridge, in the room of James. Tyrrell, Eſquire. William Murray,
Eſquire, lately appointed ſolicitor general, on the reſignation of Sir John
Strange, was unanimouſly elected. Commons' Debates, 1742.
5.
found
1
WILLIAM EARL OF MANSFIELD.
45
found many very reſpectable friends on both ſides of the houſe.
His own forcible and favorite queſtion could not eaſily. be an-
fwered : Why ſhould he be haſty in forming his attachment to
one party, while he enjoyed the patronage of all parties ?
In the year 1743, we find the two young ſtateſmen diſplaying
their brilliant talents, and captivating the houſe with a ſpecies
of oratory, which would have reflected honor on a Demoſthenes
or a Cicero, the one fulminating in oppoſition to the meaſures of
government, probably with a view to convince the miniſter of
the day, that he muſt ſubmit to have a dangerous and powerful
opponent, until he was diſpoſed to receive and court his ſupport,
as a valuable acquiſition to his party; the other, partly by choice,
partly from attachment to the miniſter for his early appointment
of him to the rank of his majeſty's ſolicitor-general, was the firm
fupporter of the meaſures of government. To diſcuſs the cha-
racters of theſe great men with any degree of preciſion would be
an arduous undertaking, an Herculean talk! The following
traits of compariſon are only offered as faint and imperfect out-
lines of character :
OF MR. PITT:
I. The eloquence of Mr. Pitt may be compared to a mighty
torrent, impatient of reſtraint, ruſhing with impetuoſity, and
bearing all down before it, leaving behind the veſtiges of its all...
commanding ſway, to imprint on the minds of thouſands the
imminent danger of future inundation.
II. Mr. Pitt poſſeſſed all the fire and dignity of Demoſthenes,,
commanding reſpect, which was frequently matured as his
periods flowed, and, ere his declamation was ended, reſpect. was
exchanged for, or converted into, profound veneration !
His animated anſwer in the Houſe of Commons to an accuſa-
tion of Horace Walpole’s, the brother of Sir Robert, then prime.
miniſter, will. beſt evince the nature and, irreſiſtible force of his
oratory
1
46
THE LIFE OF
oratory. And although the celebrated Doctor Johnſon is, by
learned men, allowed to have been the perſon who penned all
that has hitherto appeared in print on the ſubject ; yet, on the
authority of a very correct note taken by a dignified legal cha-
racter, who was preſent when Mr. Pitt ſeized the attention of the
Houſe, the following ſpeech puts in its claim for pre-eminence :
>
66 Sir,
The atrocious crime of being a young man, which
the honorable Gentleman has, with ſo much fpirit and decency,
charged upon me, I ſhall neither attempt to palliate or deny, but
content myſelf with wiſhing that I may be one of thoſe whoſe
follies ceaſe with their youth, and not of that number who are
ignorant in ſpite of experience. Whether youth can be imputed
to any man as a reproach, I will not aſſume the province of de-
termining ; but ſurely age may juſtly become contemptible, if the
opportunities which it brings have paſſed without improvement,
and vice appears to prevail when the paſſions are ſubſided. The
wretch, who, having ſeen the conſequences of a thouſand errors,
continues ſtill to blunder, and whoſe age has only added obſtinacy
to ſtupidity, is ſurely an object of contempt or abhorrence, and
deſerves not that his grey head ſhould ſecure him from inſult;
but much more, Sir, is he to be abhorred, who as he is ad-
vanced in age has receded from virtue, and become more wicked
with leſs temptation, who proſtitutes himſelf for money which he
cannot enjoy, and ſpends the remainder of his life in the ruin of his
country. But youth is not the only crime I have been accuſed of:
it has been ſaid I have acted a theatrical part. A theatrical part
may either imply ſome peculiarities of geſture, or a diffimulation
real ſentiments, and the adoption of the opinion and lan-
guage of another man. In the firſt ſenſe, the charge is too trifling
to be confuted, and deſerves only to be mentioned to be deſpiſed.
I am at liberty, like other men, to uſe my own language ; and
though perhaps I may have ſome ambition to pleaſe that honora-
ble
of my
3
WILLIAM EARL OF MANSFIELD.
47
ble Gentleman, I ſhall not lay myſelf under any reſtraint, rör
very folicitouſly copy either his mien or his diction, however
matured by age or experience. If any perſon by charging me
with theatrical behaviour ſhall imply that I utter any ſentiments
but my own, I ſhall treat him as a calumniator and a villain,
nor ſhall any protection ſhelter him from the treatment he de-
ferves. I ſhall, on ſuch an occaſion, without fcruple, trample
upon all thoſe forms with which wealth and dignity entrench
themſelves ; nor ſhall any thing but age reſtrain my reſentment-
age, which always brings one privilege, that of being infolent
and ſupercilious without puniſhment. But, with regard to thoſe
Sir, whom I have offended, I am of opinion, that if I had acted
a borrowed part, I ſhould have avoided the cenſure. The heat
which offended them is the ardour of conviction, and that zeal
for the ſervice of my country, which neither hope nor fear ſhall
ever influence me to ſuppreſs. I will not fit unconcerned while
my liberty is invaded, nor look in ſilence upon public robbery. I
will exert my endeavours, at whatever hazard, to repel the age
greſſor, and drag the thief to juſtice, whoever may protect them
in their villany, or whoever may partake of their plunder."
III. Early in life Sarah ducheſs of Marlborough remunerated
Mr. Pitt for his ſervices to his country by leaving him a legacy
in the following words: “I give to William Pitt, of the pariſh
of Saint James within the liberty of Weſtminſter, eſquire, the
ſum of 10,000l. upon account of his merit in the noble defence
he has made for the ſupport of the laws of England, and to
prevent the ruin of the country.” The political tenets and the
conduct of the noble ducheſs, in her oppoſition to Sir Robert
Walpole's adminiſtration, are too well known to need any com-
ment; yet the receipt of this legacy had not any inherent attrac-
tion, any taliſmanic virtue, to prolong or perpetuate oppoſition
to the meaſures of government,
IV.
1
48
THE LIFE OF
1
!
IV. When Mr. Pitt became ſuſceptible of love, and turned
his thoughts to domeſtic happineſs, the reſpectable addition of
fortune, and of family connections were not overlooked,, nor
diſregarded.
Laſtly, The tranſcendent abilities of Mr. Pitt were employed
in, and confined to, the inveſtigation of political ſubjects. He
entered the Houſe of Commons full of vigor, health, and anima-
tion. The emanations of his vigorous mind were in their me-
ridian glory in the midſt of a long debate ; and as he generally
entered the houſe freſh, powerful, and panting for victory, like
a celebrated champion entering the liſts of the Olympic games,
fo, at the cloſe of his parliamentary conteſt, like Virgil's Entel-
lus, he might juſtly conclude,
Hic victor cæftus artemque repono..
OF MR.
MURRAY.
1. The ſilver Thames, meandring through a rich and long
extent of country, fertilizing the adjacent banks, and giving
grace and beauty, in addition to great riches, wherever its re-
freſhing waters flow, may be deemed the fair emblem of Mr.
Murray's eloquence :
“Though deep, yet clear; though gentle, yet not dull;
Strong without rage, without o’erflowing full."
Sir John Denham's Cooper's Hill.
II. Mr. Murray had confeſſedly formed himſelf on the beſt
models of eloquence. His voice was mellifluous, his manner en-
gaging ; and whenever he exerted his powers, and employed his
eloquence in any important cauſe or debate, he never failed to
conciliate the good opinion, the reſpect, and veneration of the
audience.
From one important cauſe, diſcuſſed under peculiar circum-
ſtances, and at a period when, in addition to the taunts of an
indivi.
A
WILLIAM EARL OF MANSFIELD.
49
-
1
1
individual of ſuperior talents to moſt men, party-prejudice ran
very high, when terrors were hung out, and even perſonal vio-
lence denounced, Lord Mansfield, with great animation, re-
pelled the attacks made upon himſelf and his colleagues in the
court of King's Bench.
To pourtray the numerous ſhades of diſtinction between the
ſpeeches of Mr. Pitt, the diſciple of Demoſthenes, and Mr.
Murray, the lover of Ciceronian eloquence, would require
volumes, and would not fail to form a ſplendid ſyſtem of Britiſh
oratory; but the ſelection of a few ſentences from a very ani-
mated ſpeech (which the ſtudious reader will have the pleaſure
of finding among the ſingular events of the year 1768 in the Second
Chapter of this work) will, it is to be hoped, be ſufficient for
the preſent purpoſe.
It was our duty, as well as our inclination, fedulouſly to
conſider, whether, upon any other ground, or in any other
light, we could find an informality in the proceedings, which
we might allow with ſatisfaction to our own minds, and avow
to the world.
“ But here, let me pauſe! it is fit to take ſome notice of the
various terrors hung out. The numerous crowds which have
attended, and now attend, in and about the hall, out of all reach
of hearing what paſſes in court, and the tumults which in other
places have ſhamefully inſulted all order and government, au-
dacious addreſſes in print dictated to us from thoſe they call the
people, the judgement to be given now, and afterwards upon the
conviction. Reaſons of policy are urged, fr.om danger to the kingdom,
by commotion and general confuſion.
“ Give me leave to take the opportunity of this great and re-
ſpectable audience, to let the whole world know all ſuch attempts are
vain. . Unleſs we have been able to find an error which will bear
us out to reverſe the outlawry, it muſt be affirmed. The conſti-
tution does not allow reaſons of ſtate to influence our judgements :
H
God
50
THE LIFE OF
3
1
God forbid it ſhould! We muſt not regard political conſequences,
how formidable foever they might be. If rebellion was the cer-
tain conſequence, we are bound to ſay, 'Fiat juſtitia, ruat cælum.
The conſtitution truſts the king with reaſons of ſtate and
po-
licy. He may ſtop proſecutions. He may pardon offences. It
is his to judge whether the law or the criminal ſhould yield. We
have no election. We cannot pardon. We are to ſay what we
take the law to be. If we do not ſpeak our real opinions, we pre-
varicate with God and our own conſciences.
“I paſs over many anonymous letters I have received. Thoſe in
print are public; and ſome of them have been brought judicially
before the court. Whoever the writers are, they take the wrong:
way. I will do my duty unawed. What am I to fear? that
mendax infamia from the preſs, which daily coins falſe facts and
falſe motives? The lies of calumny carry no terror to me: : I
truſt, that my temper of mind, and the colour and conduct of
my life, have given me a fuit of armour againſt theſe arrows. If,
during this king's reign, I have ever ſupported his government
and aſſiſted his meaſures, I have done it without any other re-
ward than the conſciouſneſs of doing what I thought right.
If I have ever oppoſed, I have done it upon the points them-
félves, without mixing in party or faction, and without any col-
lateral views. I honor the king, and reſpect the people; but
many things acquired by the favor of either are, in my account,
obječts not worth ambition. I wiſh popularity.;. but it is that pu-
pularity which follows, not that which is run after ;, it is that
popularity which, ſooner or later, never fails to do juſtice to the
purſuit of noble ends by noble means. I will not do that which
my conſcience tells me is wrong,. upon this occaſion, to gain the
applauſe of thouſands, or the daily praiſe of all the papers which
come from the preſs. I will not avoid doing what I think is right;
though it ſhould draw on me the whole artillery of libels; all
that falſehood and malice can invent, or the credulity of a de-
luded:
1
I
WILLIAM EARL OF MANSFIELD.
·51
1
luded populace can ſwallow. I can ſay, with a great magiſtrate,
upon an occaſion, and under circumſtances not unlike, Ego hoc
animo ſemper fui, ut invidiam virtute partam, gloriam non invidiam
putarem.
“ Threats go farther than abuſe ; perſonal violence is denounced.
I do not believe it. It is not the genius of the worſt of men of
this country in the worſt of times; but I have ſet my mind at
reſt. The laſt end that can happen to any man never comes too
fuon, if he falls in ſupport of the law and likerty of his country
(for liberty is fynonymous to law and government). Such a ſhock
too might be productive of public good. It might awake the
better part of the kingdom out of that lethargy which ſeems to
have benumbed them, and bring the mad part back to their
ſenſes, as men intoxicated are ſometimes ſtunned into ſobriety.”
III. In his entrance into public life, when Mr. Murray, as
the younger ſon of a noble family, did not enjoy any landed
pro-
perty, Mr. Vernon, a mercer on Ludgate-Hill, and a reputed
friend to Jacobitiſm, gave and deviſed an eſtate in the counties
of Cheſter and Derby to the honorable William Murray, his heirs
and aſſigns for ever. The deviſee took poſſeſſion of the eſtate,
but the only gratitude, he evinced was that of preſerving this
firſt-fruits of territorial property in his family, where it yet re-
mains. Mr. Murray retained the gift, without imbibing, or
adhering to the tainted principles of the donor *.
IV.
i
-
* Mr. Vernon was one of the deſcendants of a very 'antient family, who
had been for many centuries in poſſeſſion of the deviſed eſtate, which, at
the leaſt, was equal in value to the ducheſs of Marlborough's legacy of
10,000l. to Mr. Pitt, afterwards earl of Chatham. The curious reader will
probably be pleaſed with any accurate explanation of the foundation whereon
the fine ſuperſtructure of a deviſe of antient patrimony was built. Mr. Ver-
non had a ſon, who was educated at Weſtminſter ſchool, and who was con-
temporary with Mr. Murray. An early friendſhip between thoſe college-
youths was foſtered by the father, who conceived that it could not fail to be
H2
of
A
0
i
52
THE LIFE OF
}
1
IV. On Mr. Murray's marriage with one of the daughters of
the earl of Winchelſea, the acquiſitions of fortune and family-
connections were ſplendid and permanent.
Laſtly. Mr. Murray's ſhining abilities were diſplayed in all
the viciſſitudes of argument and debate. He might truly ſay,
with his friend and favorite Tully, with a little variation, Non
nobis nati ſumus ; partem leges, partem præfidium, partem patria, fibi
vindicant. Lord chancellor Hardwicke in the Court of Chancery
claimed (and could bear ample teſtiinony to) many hours of
exertion, on the part of Mr. Murray, in the morning. The
council-chamber, or the bar of the Houſe of Lords, put in their
irreſiſtible claim to ſtill greater exertions about noon; and though
laſt, not leaſt in his eſteem, if we may form a judgement from
many excellent ſpeeches made in the houſe of commons ; he
entered the liſts with the greateſt of all rivals, Mr. Pitt, who,
with a degree of candour worthy of himſelf, admitted that he
generally found in Mr. Murray a fair, open, and formidable rival.
Can any tribute of applauſe be more animated than that which
flowed from lord Chatham, on a great occaſion in the houſe of
lords, when, in anſwer to lord Mansfield, he ſaid, “ My lords, I
muſt beg the indulgence of the houſe ; neither will my health
permit me, nor do I pretend to be qualified to follow that noble
lord through the whole of his argument. No man is better ac-
quainted with his abilities and learning, nor has a greater reſpect
for them than I have. I have had the pleaſure of ſitting with
of mutual benefit to each of the tyros. When Providence was pleaſed to
diffolve the bond of amnity, and leave Mr. Vernon childleſs, he ſeems to
liave formed the reſolution of adopting the faſt friend of his ſon. To adduce
proof; in the year 1738, and on the very intereſting occaſion of the marriage
of Mr. Murray with the daughter of a noble earl, familiar letters froin Mr.
Vernon fully evince, that his great regard for Mr. Murray was deeply riveted,
and that, by adoption, he conſidered himſelf as ſtanding forward on that
happy occaſion in the place of a parent.
him
#
53
WILLIAM EARL OF MANSFIELD.
him in the other houſe, and always liſtened to him with attention.
I have not now loft a word of what he ſaid, nor did I ever.”
In the faine houſe, and on another great occaſion, lord Chat-
ham having quoted lord Somers, and lord chief juſtice Holt, in
ſupport of his law, and having drawn their characters in fplendid
colours, turning to lord Mansfield with a truly dignified geſture,
“ I vow to God, I think the noble lord equals them both in abili-
ties!"
1
1
In the adminiſtration of the late duke of Newcaſtle, and his
brother Mr. Pelham, the life of the earl of Mansfield was that
of a moſt able advocate and an active ſtateſman, who aſſiſted
thoſe miniſters in the great work of balancing parties, and com-
bating the very powerful oppoſition to their adminiſtration.
By a ſteady attachment to his principles and his party, he
obtained, and juſtly merited, all the praiſe that is due to conſiſt-
ency. Many pages might, with great facility, be filled with
fine ſpeeches aſcribed to the honorable Mr. Murray. But when
it is conſidered, that many of thoſe ſpeeches were made either in
fupport of treaties with, or affiſtance to be given by this country
to foreign powers, and on other local and particular ſubjects,
which by length of time are become leſs intereſting, however
applauded at the time at which they were delivered ; it is need-
leſs to repeat them here. It will be ſufficient to preſent the rea-
der with a few ſelect ſpeeches delivered by him when his ma-
jeſty's ſolicitor general, and when, in his more dignified ſitua-
tion of a peer of the realm, he enjoyed the moſt commanding
influence. Alas! all his lordſhip's own records of himſelf; all
his manuſcripts, notes, and papers, were deſtroyed in the horrid
riots of 1780.
His language was impelled by the weight and dignity of the
ſubject which he diſcuſſed. He ſpoke froin his fcelings; and his
fine tone of voice, which gave him the appellation of the ſilver-
tongued Murray, roſe in due proportion, as he was warmed with
tlie
.
54
THE LIFE OF
1
A
1
the fubject, all appeared to be in perfect uniſon. He was in de
bate lively and copious, perſpicuous without conſtraint, melli-
fluous without exuberance, and convincing without oſtentation!
His mind' was vigorous in an uncommon degree; and ſo reten-
tive was his memory, that, at any diſtance of time, he would re-
peat any arguments or anecdotes he had heard, with all their
combinations of circumſtances, to the aſtoniſhment of ſtrangers,
and to the great admiration and entertainment of his friends.
Nature had endowed him with moſt fingular powers of com-
prehenſion. Theſe, aided by the moſt extenſive reading, and the
ſtudy of the moſt celebrated authors, made him ever capable of
illuminating the darkeſt ſubjects. Rarely do irreſiſtible powers of
conviction and pleaſing manners unite in one perſon.
But, while elegance of language and force of fentiment have
charms to pleaſe, the remembrance of the earl of Mansfield's
natural and acquired endowments cannot fail to ſecure univer-
fal admiration. What inexpreſſible delight was it to participate
the pleaſantry and eaſe of his converſation, in thoſe convivial
hours, where true greatneſs is exhibited to our view without re-
ſerve, where the genuine effuſions of a well-informed mind are
conſpicuous without deſign, and where elegance and ſimplicity
unite, without affectation to form a finiſhed character! Mr.
Murray, if the alluſion may be pardoned, was, “when unadorned,
adorned the moſt.”
In private diſcourſe at his table, he would enliven and enter-
tain his gueſts with the pureſt attic wit, and thus improve the
flavor of the choiceſt wines. At one time, curious hiſtorical
facts engaged their attention ; at another, anecdotes of the moſt
celebrated men were related by him with engaging eaſe and -
uncommon accuracy.
To endowments naturally great, he added, with ſolicitude
and uncommon ſucceſs, the refinement of improvement by ſtu-
dying the beſt compoſitions. He not only knew how to poliſh the
diamond, but alſo to enhance the value by a judicious diſplay of
its luſtre. Yet, although he was induſtrious to excel others, no
-
1
one
1
A
WILLIAM EARL OF MANSFIELD,
55
one was a greater admirer of excellence in other men.
He left,
to minds leſs enlarged than his, the invidious purſuit, the pain
of damping or depreſſing riſing genius. The heart-felt pleaſure
was his, of ſeizing every fair occaſion to confer on dawning ge-
nius his friendly countenance, advice, and ſupport !
He was an excellent judge of men and things. Early in life he
was ſuſceptible of the paſſion of friendſhip, and ſeemed to think
its laws were ſacred and inviolable. Some of his familiar let-
ters, to his friends in the profeſſion of the law, have been prea
ferved, which do honor to his heart; and which in elegance
and eaſe are not inferior to the letters of Pliny.
In his eloquence at the bar and on the bench, we view the
perfect image of a mind that was naturally clear and fufcep-
tible of the fineſt impreſſions, of a mind that was conſiderably im-
proved by making the great Roman orator, Cicero, his great
example and his theme.
His imagination was fo fruitful and lively as to profit by the
leaſt hint. He had the felicity of adorning and enriching
every ſubject he diſcuſſed; and, as it were, from dying embers:
to raiſe a pure flame. Yet, in his judicial capacity, if the bril-
liancy of his imagination, and the quickneſs and perſpicuity of
his conceptions, ſecured the applauſe of a conſiderable part of
the audience, the foundneſs of his judgement was ſure to cap-
tiyate the reſt. A judgement like his, which was naturally
good, ripened early into exquiſite ſenſibility and diſtinguiſhing
ſagacity. In this inſtance, he verified the juſtneſs of Dr. John-
fon's opinion, that it is ridiculous to oppofe judgement to imagi-
nation, ſince it does not appear that men have neceſſarily leſs
of one, as they have more of the other.
' In fine, the clearneſs of his head enabled him to ſolve :
and ſurmount the moſt difficult and ſubtle points of law ; to
develope the mazy labyrinths of pleading, as it were by intuition
(ſince the ſcience of pleading had not engaged his early. atten-
tion, or formed a part of his ſtudies); and the perſpicuous man:
per in which he expreſſed his thoughts never failed to ſatisfy
and
4.
1
}
56
THE LIFE OF
and convince all parties. He very rarely had the facility of
his flowing periods interrupted by hoarſeneſs, or impeded by
thirſt. After having waited for his regular meal, through the
preſs of much and tedious buſineſs, to a late hour in the even-
ing, he has repeatedly ſaid, that he never knew what it was
to be thirſty, or faint with hunger.
Thus the imagination of this illuſtrious man ſeemed to be ever
on the wing, ever ſoaring, yet never ſenſible of fatigue, the
uſual concomitant of great exertions.
Το promote ſubſtantial juſtice was his great and conſtant la-
bour: the code of commercial laws, which he confeſſedly eſta-
bliſhed on this ſolid principle, thed its happy influence far and
wide. His own reſearches and approved adjudications, like a
polar ſtar, guided his matured judgement; enabled him to me-
liorate thoſe laws, in the ſtudy of which he had ſpent his early
and in the diſcuſſion and illuſtration of which he had, ſo
early as in 1742, diſplayed ſo much acumen, ability, quickneſs,
and pre-eminence, as to be deemed the ſhining ornament of the
Court of Chancery,
life;
A
In 1743,
On a motion in the houſe of commons to addreſs his
majeſty, that he would be pleaſed to give directions for the diſ-
miſſion of the Hanoverian troops, the honorable Mr. Murray,
his majeſty's folicitor general, was called up in defence of the
prerogative of the crown.
"The motion now under our confideration is of ſuch a new and extra-
ordinary nature, and ſuch a direct attack upon the prerogative of the
crown; that I ſhould think myſelf very little deſerving of the honor his
majeſty has been pleaſed to confer upon me, if I ſat ſtill, and heard ſuch a
motion made without ſaying any thing againſt it. - Every gentleman,, who
has the honor to be a member of this houſe, and views the queſtion in the
ſame light I do, is in duty bound to give his vote againſt it; but, from the
poft I hold under the crown, I think myſelf obliged to give my reaſons
againſt the motion, as well as my negative to the queſtion. By our conſti-
tution, fir, the crown has its powers and prerogatives, as well as the people
their
WILLIAM EARL OF MANSFIELD.
57
.
. -
their liberties and privileges, the overthrow of either would be an over-
throw of our happy conftitátion; and no violent attack has ever yet been
made upon the former, but what ended in the deftruction of the latter ;
therefore, as members of this houſe, and as guardians of the liberties of the
people, we are obliged to protect the prerogatives of the crown, and to be
careful never to make any encroachment upon them. Among the preroga-
tives of the crown, one of the chief is, that the king has not only the fole
power of declaring war, but the ſole command and direction of its
proſecu-
tion. He alorre is to judge and determine how and in what manner; with
what forces, and what fort of forces, the war is to be carried on; how our
armies are to march, or our fquadrons to fail; and when they are to attack,
or when keep upon the defenfive. All this, I ſay, the king haš, by his
pre-
Fogative, the ſole direction of; but, if this motion ſhould be agreed to, I
ſhould not be at all ſurprized to ſee a venerable member of this houſe, who
perhaps never was out of the iſland, nor ever ſaw an army or a ſquadron in
his life, riſing up, and gravely moving to addreſs his majeſty, to order his
army, or his ſquadron, to engage the enemy, without knowing any thing of
the ſituation or circumſtances of either.
Gentlemen may ſmile, fir, at this inference; but I muſt think that ſuch
a motion would be full as reaſonable as the preſent motion. As we know no-
thing of the preſent circumſtances or views of any one court in Europe,
except what we have learned from common newſpapers, which is a ſort of
knowledge that is not I am ſure to be depended on; it is impoſſible for us to
judge what is the beſt method for giving effectual aſſiſtance to the queen of
Hungary; and, if it can be ſuppoſed that our aſſiſting her with our money
and our navy will be any way effectual, ſurely our aſlifting her with our
troops, as well as our money and our navy, will be more effectual. The
beſt and moſt certain way of judging in this caſe for us, is to judge by the
effects, and from them, if we form a judgement, we muſt conclude, that
his majeſty has choſen the beſt method for giving her affiſtance. Let us con-
ſider the circumſtances of Europe, when our miniſters firſt reſolved to ſend
our troops to Flanders, and compare them with the preſent : if we do, muſt
we not acknowledge, that a happy change has been brought about in that
ſhort period of time? I know it may be, and has been, ſaid, that this change
has been brought about by the bravery of the queen of Hungary's troops,
and the bad conduct of the French generals ; but, in all political events, it
is eaſy to allign other reaſons beſides the true one. I ſhall readily acknow-
I
ledge
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*
1
ledge the bravery of the queen of Hungary’s troops, and the fidelity of her
fubjects ; but they muſt have been overwhelmed by numbers, if Pruffia and
Saxony had not been brought off from the French alliance; and though.
this did not happen till ſome time after we began to ſend our troops to
Flanders, yet it is highly probable that our reſolving upon that meaſure
had an effect upon the counſels of both theſe princes; for from that mea-
ſure they perceived, that this nation had then begun, and was reſolved to act
vigorouſly, and with all its force, for the ſupport of the queen of Hun-
gary, which would render the ſucceſs of the ſchemes, they had then in view,
much more precarious; and, at the ſame time, it left them more at liberty
to Thew their reſentment upon the ill treatment they had met with, or night
meet with, from France. It may therefore be reaſonably ſuppoſed, that
this defection, which I look upon as the æra of the queen of Hungary's
triumphs, was chiefly owing to our reſolving to ſend a body of our troops to
Flanders.
But it is very well known, that France had then above one hundred thou-
fand regular troops on foot, beſides thoſe employed in Germany. If that
court had thought themſelves in no danger at home, what could have hin-
dered tliem from pouring in their whole army into Germany, which, with
the emperor's forces and the armies they had there before, would have
formed ſuch a numerous and powerful army as the queen of Hungáry, with
all her forces, could not have withſtood? This they might certainly have
done ; this they would probably have done ; but our ſending our troops to
Flanders made the court of France apprehend an attack at home, which
made it dangerous for them to ſend their diſciplined troops out of the
kingdom. 'Tis true, we could not without the Dutch propoſe to form an
army of above fifty thouſand men in Flanders; but the French court could
not be certain that the Dutch would not ſuddenly reſolve to join us; and if
they had, as their troops were all in the neighbourhood, they might, in a
few days, have joined our army with fifty thouſand men, which would have
made the allied army one hundred'
, thouſand; and this would have been
equal to any army the French could have brought againſt us.
Beſides this, fir, the French neither did nor could know where we de
ſigned to begin the attack. We might have begun it upon Dunkirk; we
might have begun it upon the ſide of Lorrain, which borders upon the
queen of Hungary's province of Luxemburgh ; and as theſe two countries
are very diſtant the one from the other, as the French troops. muſt make a
great
?
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WILLIAM EARL OF MANSFIELD.
59
".
great circuit round the Auſtrian Netherlands, in marching from one of thoſe
countries to the other, they were obliged to keep great bodies of regular
troops in both, as well as along their whole frontier between the two, in order
to be ready to defend themſelves wherever we ſhould begin the attack. In
theſe circumſtances, even an army of fifty thouſand men muſt oblige .theni
to keep near double that number upon their frontier ; and the uncertainty
they were in with regard to the Dutch, who had reſolved upon a third ayg-
mentation of their troops, about the ſame time that we reſolved upon ſend-
ing a body of ours to Flanders, could not but make it neceffary for the
French to keep above one hundred thouſand men upon that extenſive fron-
tier, which was in danger of being attacked by the allied army. Therefore
it muſt be acknowledged, that our beginning to form an army in Flanders,
in the year 1742, diſabled the French from ſending the neceſſary reinforce-
ments into Germany; and this enabled the queen of Hungary to make thoſe
advantages of the retreat of the Pruſſian and Saxon troops, which would
otherwiſe have been prevented by the arrival of new and numerous French
armies.
As the Dutch continued obſtinate in their pacific ſentiments, as there
were no hopes of bringing them off from their beloved neutrality, the de-
ſign of making an attack upon France, by the way of Flanders, was laid aſide;
and it was reſolved to employ our army there in aſſiſting to drive the French
troops entirely out of Germany, that ſo the emperor, being left deſtitute of
all ſupport, might the more eaſily be induced to agree to ſuch terms as
would eſtabliſh, upon a firm baſis, the tranquillity of his native country, and
the balance of power in Europe. For this purpoſe our troops began to
march from Flanders towards Germany early in the ſpring; and their march
had ſuch an effect, that Germany is now entirely free from French troops ;
the queen of Hungary is in poffeffion of the emperor's hereditary countries;
and the French, inſtead of being the invaders of other people's territories,
are now hardly able to defend their own. Upon the ſide of Germany, fir,
theſe are the effects of the method his majeſty has choſen for aſſiſting the
queen of Hungary; and, upon the ſide of Italy, the effects are equally
happy. There, indeed, our navy has been of great uſe to us; but by our
navy alone theſe effects.could not have been produced; for if we had not,
by ſending our troops to Flanders, raiſed apprehenſions in the French of
having their own frontier attacked, they would probably have ſent ſuch a
conſiderable body of the troops to the aſſiſtance of the Spaniards in Savoy
I 2
as
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as might have enabled them to force their way into Italy, and, perhaps, to
compel the king of Sardinia to ſubmit to their terms; but by our raiſing
theſe apprehenſions in the French, and thereby diſabling them from ſending
any reinforcement to the Spaniards, the latter have been obliged to remain
in Savoy; the king of Sardinia remains firm to his alliance with the queen
of Hungary; the duke of Modena has been ſtripped of his dutchy; and
the king of the Two Sicilies has been obliged to withdraw his troops from
that army of the Spaniards, which, by the neglect or pufillanimity of a former
miniſter, was allowed to be tranſported by ſea to Italy.
Thus, fir, we fee, that upon every ſide the moſt happy effects have been
produced by the method his majeſty has choſen for aſſiſting the queen of
Hungary; and from thence, I think, I have reaſon to conclude, that it is
the beſt method his majeſty could have choſen, and that it ought not to be
altered, unleſs ſome new and extraordinary event ſhould make an alteration
very apparently neceſſary. If then it be neceſſary to aſſiſt the queen of
Hungary with troops, as well as with our money and our navy; I hope it
will not be ſaid, that we can affiſt her effectually with our own troops alone,
and without taking any foreign.troops into our pay; for, if this ſhould be re-
folyed on, it would be neceſſary to increaſe our national land-forces, to
double or treble what we have at preſent on foot; and no one, I believe,
will ſay that this will be conſiſtent, either with the preſervation of our con-
ftitution, or the preſervation of our trade. From hence I muſt conclude,
that, in order to aſſiſt the queen of Hungary effectually, and in that manner
which has already produced fo happy effects, we muſt have foreign troops
in our pay; and till it is made plain to me that we can have the ſame num-
ber of foreign troops from ſome other potentate, and at as cheap a rate as
we have this body of Hanoverians, I muſt be againſt the preſent motion
and ſhould, till then, be againſt it, even ſuppoſing I were to be convinced
of its being perfectly agreeable to our conſtitution. As to the inſinuations
that have been thrown out in this houſe, and induſtriouſly ſpread without
doors, of the cowardice of the Hanoverian troops, of their diſobeying the
orders of our generals, and of the jealouſies and heart-burnings that have
arifen between them and our Britiſh troops, I have made all the inquiry I
could into the truth of theſe infinuations; and I find, they proceed entirely
from thoſe jealouſies and animoſities that naturally ariſe, and always do ariſe,
between troops of different nations, when united in the ſame army. Thoſe
inſtances of cowardice, which I have heard mentioned, ſeem all to me to
be
1
..
'
WILLIAM EARL OF MANSFIELD.
6r
be inſtances rather of a ſtrict diſcipline thạn of any cowardice; and, by all
the accounts I have been able to collect, the Hanoverian troops ſeem to me
to be ſo much under diſcipline, and ſo much maſters of it, that no danger,
no nor even ſucceſs itſelf, can make them neglect it, or break through it;
which, according to the opinion of all the old officers I have converſed
with, is of greater uſe in an army, and more ſerviceable in the day of battle,
than a rafh forwardneſs and 'ungovernable impetuofity. If there was any
ſeeming neglect of the orders of our generals, I am convinced it proceeded
from fome miſtake, either in thoſe that delivered, or thoſe that received,
the orders, and not from any wilful diſobedience; and the diſputes that aroſe
between the Britiſh and Hanoverian troops were either about quarters, fo-
rage, proviſions, or in relation to the courage of the two nations, which are
diſputes that never fail to ariſe between the troops of different nations, and
often do ariſe between the ſoldiers of different regiments; but theſe diſputes
may eaſily be prevented from riſing to any height, by a prudent conduct in
the officers, eſpecially the general in chief, and are rather of a good than a
bad conſequence in a day of battle, becauſe they raiſe an emulation in the
different corps, which contributes to the good behaviour of both. As to
the partiality which, it is pretended, was ſhewn to the Hanoverian troops,
I never could find the leaſt ground for the inſinuation; for, if they were ever
furniſhed with greater plenty, or a better fort of proviſions or forage, by all
the enquiries I have been able to make, it ſeems to have proceeded from
their commiffaries and proveditors being better acquainted with the country,
and more maſters of the language, perhaps more maſters of their buſineſs
too, than thoſe that were employed as commiſſaries and proveditors for the
Britiſh troops. From all which I hope it will appear, fir, that this body of
Hanoverian troops may be as uſeful to us, and as ſerviceable to the common
cauſe, as any equal number of foreign troops we can take into our pay; and,
if this be ſo, I can ſee no reaſon for our diſmiſſing them, as long as we
have occaſion for keeping any foreign troops in our pay; at leaſt we ought
not to diſmiſs them, much leſs ought we to adviſe his majeſty to diſmiſs
them, unleſs we were ſure of being able to ſupply their place by an equal
number of ſome other foreign troops, whịch, I believe, no gentlemari in
this houſe can pretend to be ſure of.
Whether this houſe ought, in any caſe, to offer their advice to their ſove-
reign, is a queſtion, fir, that, from the nature of our conſtitution, might
admit of ſome diſpute ; becauſe it is very certain, that this houſe was not de-
figned,
>
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figned, by its original inſtitution, to adviſe, but to conſent, as appears from
the very words of the writ, the ancient form of which is ſtill preſerved.
However, the practice has been ſo frequent for a century paſt, that we ſeem
to be in poffeffion, and therefore I Thall not diſpute our right; but we
ought never to make uſe of it, except in caſes where we have a full infor-
mation, and are perfectly maſters of the affair in which we offer our advice,
which is not, I am ſure, the caſe at preſent. We neither have nor can
have a full inforınation of all the circumſtances of the affair to which this
imotion relates; and to offer our advice in any ſuch caſe is the moſt certain
way we can take to give his majeſty, as well as the public, a mean and
contemptible opinion both of our judgement and diſcretion, which would
derogate from the influence our advice ought to have in caſes where we have
a full information, and can be no way accuſed of acting a pragmatical part.
If the meaſures purſued by our adminiſtration had been attended with
bad ſucceſs and ſignal misfortunes, either to ourſelves or our allies, this
houſe would then have had ſome reaſon to enquire into the conduct of our
miniſters, and to call for all papers, and other evidence, that might any
way contribute towards giving us a full inſight into the whole of their con-
duct; and if we found that our misfortunes, or the misfortune of our allies,
had been owing to the wrong meaſures purſued by them, we might then
with ſome decency adviſe our ſovereign to alter his meaſures as well as his
miniſters. But when our meaſures have been attended with unexpected ſuc-
ceſs, we can have no reaſon for any enquiry, and much leſs can we have a
reaſon for adviſing his majeſty to alter his meaſures : but thoſe meaſures, it
ſeems, have been all ſecretly calculated, and ſtill are ſecretly calculated, for
the benefit of the electorate of Hanover. I confeſs, ſir, I am not a poli-
tician deep enough to dive into the minds of men, and to diſcover thoſe
hidden motives which appear neither from their words nor actions. It is
apparent from the effects, that our meaſures have contributed greatly to the
ſucceſs of the common cauſe; I mean, the ſupport of the queen of Hun-
gary, and the ſecurity of the balance of power ; and if the electorate of
Hanover had reaped, or may reap, any advantage by ſuch meaſures, it would
be invidious to grudge it that advantage. The effects have ſhewn, that our
taking foreign troops into our pay has been of great ſervice to the common
cauſe: and, if the electorate has thereby reaped the advantage of getting a
body of its troops maintained by us, we ought not to grudge it, or repine
at it; for it has been no loſs to us, but rather an advantage, becauſe, if
sve had not had the Hanoverian troops in our pay, we muſt have had an
5
equal
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WILLIAM EARL OF MANSFIELD.
63
)
A
í
1
equal number of the troops of fome other prince or ſtate, and muſt have
paid for them; for to any other prince or ſtate we muſt have paid a yearly
fubfidy, beſides maintaining his troops, and muſt, perhaps, have agreed to
pay that ſubſidy for a certain number of years, even though we ſhould have
had no occaſion for his troops during the greateſt part of that time. Again,
fir, ſuppoſe the electorate of Hanover ſhould get ſome neighbouring terri-
tory added to it by the next treaty of peace, would that be any loſs or any
diſadvantage to this nation? Could it derogate in any manner of way
from
the chief end we have in view, which is that of ſupporting the Houſe of
Auſtria, and thereby preſerving a balance of power in Europe ? Would it
be right in us to repine at the additional territory which the king of Sar-
dinia. is to have for ſupporting the common cauſe? Would it be right in us
to ſay, that he acquires that additional territory at the expence of this na-
tion, becauſe we pay him a yearly ſubſidy for enabling him to ſupport the
common cauſe ? The abſurdity of ſuch a reaſoning is apparent ; and yet.
we have more reaſon to repine at the additional territory the king of Sar-
dinia is to acquire than at Hanover's acquiring any additional territory by
the event of the preſent war ; becauſe the territory, which is to be added to
the king of Sardinia's dominions, is to be taken from thoſe of the queen of
Hungary; conſequently, the encreaſe. of power he thereby acquires is a di-
minution of the power of the Houſe of Auſtria, and is the more dangerous,
becauſe his whole weight may upon the next emergency be thrown into that
ſcale, which we think is already too heavy: whereas we cannot ſuppoſe that
the electorate of Hanover will defire any part of the queen of Hungary's
dominions: whatever that electorate may acquire by the event of the war,
it can be no diminution of the power of the Houſe of Auſtria ; and though,
from late experience, we may ſuſpect that the weight of the king of Sar-
dinia may, upon ſome future occaſion, be thrown into the French ſcale, we
cannot fufpect that the weight of Hanover. will ever 'be thrown into the
ſcale of the Houſe of Bourbon againſt the ſcale of the Houſe of. Auſtria,
becauſe of the connection between Hanover and England; and becauſe of
its being ſo much the intereſt of England to preſerve the power of the latter,
as a balance againſt the power of the former.
To infinuate, fir, that the war is. now continued, and this nation put to
the expence of ſupporting it, for no other reaſon, but to compel France
and the emperor to conſent to the making ſoine addition to the territories of
Hanover, is an inſinuation of a moſt dangerous nature with reſpect to our
preſent happy eſtabliſhment, becauſe it tends to wean the affections of the
people,
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THE LIFE OF
people, iföt only frðin their preſent fovereign, but from the Proteſtant fuc-
ceffion in the Hanover line.' Such an infinuation, when made without the
moſt folid grounds, can proceed from nothing but a Republican or a Jaco-
bitiſh ſpirit, which are equally dangerous to our preſent happy conſtitution;
and equally, in my opinion, tend to the eſtabliſhment of a tyrannical and
abſolute government; therefore, I was ſurprized to hear any ſuch inſinua-
tions made in this houſe by gentlemen, who, as yet, have ſhėwn nó authen-
tic fact, or paper, for ſupporting what they have thus boldly inſinuated.
As for my own part, ſir, I do not pretend to be, nor is it my buſineſs to
deſire to be, in the ſecrets of the cabinet, eſpecially with regard to foreign
affairs ; but from the nature of things, and from all the public accounts we
have, particularly thoſe that have been publiſhed by the authority of the
court of Vienna, it is to me apparent, that the war is continued for no other
reaſon but to force the emperor and France to cohfent to ſuch terms of
peace as may reſtore the tranquillity of Europe, and ſecure the queen of
Hungary, and conſequently the balance of power, from a ſudden ånd iin-
mediate attack from the fame quarter. When the French found the flower
of the army ſhut up in the city of Prague, almoſt without any practicable
means of eſcaping, and when the emperor found himſelf ſtripped of his he
reditary dominions, they might perhaps offer an armiſtice to the queen of
Hungary; but the termis upon which they offered it was a plain indication,
that they thereby meant only to get their army out of Prague, and the elit.
peror's hereditary countries reſtored, in order to have a little breathing-time,
and an opportunity of renewing the attack with more vigour and better con-
duct. This, I ſay, appeared to be their only aim; and this, I ain per-
ſuaded, will be the only aim of any terms they may hereafter propoſe, un-
leſs they are compelled, by a vigorous and ſucceſsful attack upon France
itſelf, to abandon their preſent ambitious projects.
This, fir, is all, I believe, our minifters have at preſent in view by the
continuance of the war, or by keeping the Hanoverian troops in the pay of
Great Britain; for I never heard it ſo much as pretended by any of our mi-
niſters, or by any friend of theirs, that they had now formed a ſcheme for
making conqueſts upon France, and giving them to the queen of Hungary,
by way of equivalent for what ſhe has yielded to Ruſſia, Saxony, and Sar-
dinia ; and, as I do not believe they ever yet formed ſuch a ſcheme, I cannot
believe they ever encouraged the queen of Hungary to hope that they would
enter into any ſuch ſcheme, much leſs that they would agree to have it car-
tried
}
:
65
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1
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WILLIAM EARL OF MANSFIELD
fate of war, may bring forth, I do not know ; but I am convinced, I ſay, that
neither our miniſters, nor the miniſtry of the queen of Hungary, have ever
yet thought of ſuch a ſcheme; and if France, by an obftinate adherence to
her ambitious views, ſhould draw the war into her own bawels, and that
war ſhould be attended with extraordinary ſucceſs, ſo as to make the ſucceſs
of ſuch a ſcheme not only practicable but eaſy, I hope no true Engliſhman
would be againſt our putting ourſelves to a little additional expence, in order
to have ſuch a ſcheme carried into execution ; for it is certainly the intereſt
of this nation to have the power of the houſe of Bourbon diminiſhed, as well
as that of the houſe of Auſtria increaſed; and, if in this ſucceſsful ſcramble
the electorate of Hanover ſhould come in for any additional territory, it
would be moſt invidious in this nation to grudge it that advantage; becauſe
it is what that electorate highly deſerves; both at our hands and thoſe of the
queen of Hungary; for the elector of Hanover declared in her favour, when
none of the other princes of the empire durft venture to do ſo; and he lent
troops to this nation when, I believe, it was impoſſible for us to have troops,
upon whatever conſideration, from any other potentate in Europe.
Having thus ſhewn, Sir, that the advice now propoſed to be given would
be in itſelf wrong, as well as a direct encroachment upon one of the moſt effen-
tial prerogatives of the crown; and having thus done what I think my duty,
both as a member of this houſe, and as a ſervant to his majeſty ; I ſhall add no
more till it comes to the queſtion, to which I ſhall moſt heartily anſwer
-No."
1746.
In the year 1746 the trial of the rebel-lords commenced. Here
the eloquence of his Majeſty's ſolicitor-general was ſo conſpicuous,
and fo generally admired, as to arreſt the attention of fenators,
and to raiſe the higheſt degree of expectation in the minds of the
audience.
The proceedings in the Houſe of Peers upon the indiĉment
againſt William earl of Kilmarnock, George earl of Cromertie,
and Arthur lord Balmerino, for high treaſon, in levying war
againſt his Majeſty, began on Monday the 28th day of July, and
continued on Wedneſday the 30th of July, and Tueſday the iſt of
Auguſt, 1746.
K
It
:
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It is well known that the earls of Kilmarnock and Cromertie
pleaded guilty
Lord Balmerino, on his being arraigned, wiſhed to be ſatisfied,
before he pleaded to the indictment, whether, if there were any
fault in the form of the indictment, or if it was ſo faulty that no
judgement could be given upon it, he could be indicted again.
The lord high ſteward anſwered :
“ If your lordſhip has any objection to take to the indictment, for mif-
writing, miſ-ſpelling, or any informality of that nature, now is your proper
time to offer ſuch exceptions."
Lord Balmerino. “My lords, I am indicted by the title of Lord Balme-
rino of the city of Carliſle ; and I am ſure that is no title belonging to me.
And I am indicted for being at the taking of his Majeſty's city and caſtle on
the 15th of November ; and I can prove, that at that time I was not within
twelve miles of it. Now, my lords, will that be of any uſe to me?"
The anſwer given by the lord high ſteward was :
“My lord Balmerino, you have made two objections of different natures ;
the firſt of them is to the addition of place given to you in this indictment
and the other goes to the fact thereby charged upon you. As to the firſt, I
muſt inform your lordſhip, that the words, late of the city of Carliſle in the
county of Cumberland, are not made part of your title, but are only an addi-
tion of place, which the law, for good reaſons, requires to be inſerted by
way of deſcription of the defendant in all indictments; and it is moſt com-
monly taken from that place where the crime is by ſuch indictment charged
to have been committed. As to your other objection, it relates to the fact
alledged in the indictment, and will depend upon the evidence, which cannot
be entered into till your lordſhip has pleaded.”
In a few minutes, and after ſome farther explanation as to the
proper time of making uſe of the objection, lord Balmerino
pleaded, Not guilty. The trial was proceeded in; and Sir Richard
Lloyd, counſel for the King, Mr. Sergeant Skinner, the King's
fergeant, and Sir Dudley Ryder, his Majeſty's åttorney-general,
having
WILLIAM EARL OF MANSFIELD.
67
having all ſpoken in the courſe of the firſt day, his Majeſty's fo-
licitor-general, roſe in his turn, but no ſooner had he uttered
the introductory words, “ My lords," than lord Balmerino ad-
dreſſed himſelf to their lordſhips, obſerving, that he was ſatisfied
he was miſtaken, and aſked their lord ſhips' pardon for taking up
ſo much of their time.
1
The folicitor-general's conciſe and calm addreſs on this unex-
pected occaſion ought to be given in his own words:
“ My Lords,
56 I was going to have ſaid, I did not apprehend it neceſſary
for me to ſpeak upon this from any difficulty in the objection; but as the
anſwer to the objection depended not upon natural but upon legal
reaſoning, and eſtabliſhed forms; and as the noble lord had choſen not to
have the aſſiſtance of counſel, in ſtating and enforcing his objection ; I
would, for his ſatisfaction, have ſaid a word or two, not only to fhew the
matter is ſettled by the uniform authority of all our books, and many ad-
judged caſes; but to have explained why it has been ſettled, that the treaſon
muſt be laid in the indictment to have been committed on a particular day,
and yet at the trial need not be proved to have been comınitted on that pre-
ciſe day. As he has declared himſelf ſatisfied, there is no occaſion to ſay
any thing."
But public expectation was not again diſappointed in the
ſpring following, upon the proceedings in Weſtminſter Hall, in
the impeachment exhibited by the knights, citizens, and burgeſſes,
in parliament aſſembled, in the names of themſelves and of all
the commons of Great Britain, againſt Simon Lord Lovat, for
high treaſon. Theſe proceedings began on Monday the 9th of
March, and continued on Tueſday the roth, Wedneſday the nith,
Friday the 13th, Monday the 16th, Wedneſday the 18th, and
Thurſday the 19th, days of March, 1746-7.
be neceſſary to premiſe, that the managers of the Houſe of
Commons were, from motives of juſtice and humanity, prompted
to counteract a moſt unnatural deſign of lord Lovat, no leſs than
that of ſacrificing his own ſon with a view to extenuate his own
guilt.
It may
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guilt. Lord Coke, a young nobleman of a feeling heart, and
moſt brilliant parts, though inexperienced in matters of impeach-
ment, had the honor of being appointed one of the managers on
this occaſion, who cloſed his ſpeech with the following ſentence.:
My lords, I ſay nothing to aggravate the caſe of the priſoner at your
bar. He is already oppreſſed with inisfortunes enough, and it is not in my
nature, I hope, to add to them; nor ſhould I, my lords, make the follow --
ing obſervation, did I not think myſelf obliged, in juſtice toʻan unfortunate
young man, whom this noble lord has forced into the rebellion. He did
write a letter, that he was afraid the diſobedient behaviour of his fon would
bring down his grey hairs with ſorrow to the grave; and therefore it will
not appear aſtoniſhing to you, that when he had forgot that tendereſt tie of
human nature, the love of a father to his child, ſo far as to defire to ſave the:
wretched remains of a life almoſt worn out, by the deſtruction of his own.
fon, that he ſhould forget his allegiance to the ſon of a king who ſaved his.
forfeit life, the remainder of which he has ſince employed in, endeavouring
to overturn and deſtroy his family, and the government eſtabliſhed in him.
I ſhall therefore conclude, with my honorable friend, in ſaying, that we are
ready to make good our charge againſt the priſoner at the bar."
In the writings of Addiſon, Pope, or Johnſon, or in the
Engliſh language, where ſhall we find a more animated, elegant,
and energetic ſentence than this, which flowed from the tongue
of a young nobleman, the only hope of the late earl of Lei
ceſter?
Mr. Solicitor-general ſeems to have treaſured up in his breaſt
this intereſting part of the ſolemn buſineſs until the fixth day of
the trial, when he not only diſcharged his duty to the crown in
ſumming up, and forcibly Thewing, how the charges in the in-
dictment were proved againſt the priſoner at the bar, but alſo
took this opportunity towards the cloſe of the trial to plead in
behalf of the ſon of that priſoner, in a moſt graceful, long, and
animated ſpeech, of which I ſhall only beg permiſſion to intro-
duce a few ſentences.
"
8.
My
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WILLIAM EARL OF MANSFIELD.
бу
“ My Lords,
* Though the noble lord perfeveres in denying the charge,
yet, as he has called no witneſſes, but reſts his defence altogether upon com-
plaints, obſervations, and objections to the force and credibility of the evi-
dence againſt him, if I was to follow my own inclination and judgement, I
ſhould think it unneceſſary to ſay any thing upon a matter already ſufficiently
underſtood.
" But I am told by the opinion of thoſe, whoſe opinion is to me a law,
that I ſhall not do my duty, nor perform the part aſſigned me, 'unleſs I cloſe
this folemn trial by calling back your lordſhips' memory and attention to the
principal grounds upon which we have proceeded, eſpecially as they have
now been objected to as inſufficient, and complained of as ſetting an example
which may be dangerous to-innocence hereafter,
“ The gentlemen who manage this proſecution have in the courſe of it
nieant to do juſtice to their truſt in ſuch a manner, that the noble lord at
the bar ſhould feel the weight of truth, but not of his accuſers; and it is
not to aggravate guilt, or to preſs down the load heavier upon him, that I
am at this time commanded to ſpeak, but to ſatisfy your lordſhips now, and
the world hereafter, from the nature of the evidence by which this accufa-
tion has been ſupported, why no part is attempted to be anſwered.
“ He has put your fordſhips in mind that the law requires you, as his judges,
to be his counſel, which is certainly true; and, I am perſuaded, compaſſion,
inſeparable from noble minds, has been ingenious to ſuggeſt to your thoughts
doubts and objections in favour of one ſtanding in that place, who certainly
labours under ſome infirmities, and is allowed to defend himſelf by no other
tongue than his own.
“ If ſcruples have ariſen in the minds of any of your lordſhips, they will
gain ſtrength from that conſideration ; and the honeſt prejudice you muſt
feel from his want of aſſiſtance may be of more advantage to him, than the
ableſt affiftance he could have had.
“ It is proper, therefore, it may even be neceſſary, to endeavour to fet
the whole in ſuch a view as may tend to obviate every poſſibility of doubt.
“ There are but two things for your lordſhips' conſideration upon this
occaſion : firſt, whether the evidence given is a convincing and legal proof
of the charge, if it be believed ? and next, whether there be any reaſons to
induce your lordſhips not to believe it?
* The
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“The only thing in the courſe of this proceeding which has not yet been
done to ſatisfy your lordſhips with regard to both theſe points is, to apply
the particular evidence that has been given to the principal overt acts laid in
the articles of impeachment.
“ As this is the only thing which has not yet been done, it is the only
thing which I ſhall attempt to do.
“ There are three kinds or ſpecies of treaſon of which the noble lord at
the bar ſtands accuſed by the articles.
“ Compaſſing and imagining the death of the king, levying war againſt
his majeſty within the realm, and correſponding contrary to a late act of
parliament.”
The ſolicitor-general having with great perſpicuity diſtributed
the evidence into three diſtinct claſſes, ſo as fully to ſupport each
of the ſeparate charges, proceeded thus :
“ Sir Everard Fawkener has told your lordſhips, that the noble priſoner
did not take pains to deny his guilt; that he put the part he had acted upon
reſentment to the miniſtry for having taken away his company; that he ſaid,
for the ſake of revenge, he would have joined Kouli Khan, had he come.
“ His eſcaping after he was firſt apprehended, the condition and place in
which he was taken, ſhew, that he thought his only ſafety lay in flight.
“ After he was taken, his declarations to thoſe who took him ; his conver-
fations with Sir Everard Fawkener, well knowing who he was, Thew an ab-
ſolute conviction, that the part he had acted was too notorious to be diſ-
fembled.
My lords, this being the nature and ſtrength of the evidence, upon
which the caſe now in judgement depends ; from the precedent which may
be made upon this occaſion, I little thought to have heard of danger to in-
nocence hereafter.
“ If this were a doubtful matter, if it were a meaſuring caſt, the com-
mons had rather the guilty ſhould eſcape than run a riſk of the innocent
being condemned. When they accuſe, they deſire the perſon accuſed may
be convicted upon clear, ſatisfactory, and unanſwerable proof, or not at all.
“ The noble lord at the bar has complained of many hardſhips. Few
are the trials in which ſuch a complaint would be ſo little founded.
66 He
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WILLIAM EARL OF MANSFIELD.
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" He had full time to prepare for his defence. At his own requeſt he
has been indulged with adjournments during the trial. He has had all the
advantages of aſſiſtance which could be given or connived at.
“ I wiſh the inflexible rule of law, as it ſtill ſtands in proſecutions of this
kind, could have allowed him to make his full defence by others.
“ The appearance of a hardſhip would have been removed; but, as this
caſe is circumſtanced, the removing that appearance would have helped the
proſecution much more than the priſoner.
" I ſpeak it feelingly; I had rather reply to the ableft advocate, than do
what my duty now requires of me. . It is painful to the laſt degree to ob-
ſerve upon any thing which has dropped from himſelf; but fome notice
muſt be taken.
“ He has laboured to prove, that no credit ought to be given to the wit-
neſſes againſt him, becauſe many of them are accomplices, and ſpeak froin
the danger of their ſituation.
“ I will allow, that the hopes of life, or the fear of death, may have in-
duced ſome of them to give evidence upon this occaſion, but not a falſe
evidence.
“ The ſame hope or fear is a ſecurity againſt that. When the Commons ac-
cuſe, and your lordſhips fit as judges, what expectation can they have, but
from their ingenuity and veracity? Should they be caught prevaricating, ,
ſhould they be detected in a falſe accuſation, deſperate were their condition
indeed.
“ But the noble lord is miſinformed, when he ſays an accomplice ought
not to be believed at all till he is pardoned : 'if ſo, he could not be examined.
The utmoſt force of the objection is no more than a circumſtance to weigh
in the ſcale againſt his credit; but then it muſt be balanced with the matter
of the evidence, the manner in which it is given, the proof by which it is
fupported, and that by which it is contradicted.
“ The matter here is probable and conſiſtent. Nothing of conſequence
reſts upon a ſingle teſtimony: they, who ſupport each other, firſt told their
ſtories ſeparately, have never ſince had an opportunity of conferring, and
therefore could not agree in a fiction. One perhaps firſt examined in Lon-
don, another at Inverneſs, neither knowing what the other had, could, or
would, ſay, kept in ſeparate cuſtodies ever fince : it is impoſſible they ſhould
unite in the fame falſehood.
66 The
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!
“ The manner too in which they gave their evidence carried with it a
degree of conviction. To inſtance in one, the behaviour of Hugh Frazer
demonſtrated what he told your lordſhips : he ſaid, if he had no hopes of
mercy, he would not have ſpoke at all; for, if he ſubmitted to be examined,
he muſt ſpeak religiouſly the truth.
“The viſible agonies and anguiſh of mind under which he labored; the
ingenuity with which he anſwered the preciſe queſtion put to him, without
ever going a ſyllable beyond it, could not but force belief to all he ſaid;
and ſhewed he gave the anſwer becauſe it was true, but wiſhed not to have
given it upon this occaſion.
“ When he firſt diſcovered what he knew, he has told your lordſhips, that
he thought himſelf in the article of death ; and from what he then ſaid he
never has varied ſince. The proof by which their teſtimony is ſupported
I have already laid together in one view. To contradict them, nothing is
offered.
- The noble lord ſays, the witneſſes who could clear him are not here,
though in the courſe of the trial we heard of his having witneſſes, and what
they would prove; he has not had time enough to bring them ; he complains
of their having been prevented; as he has not witneſſes enough, he will not
call any.
.
“ Theſe are pretexts; but he let fall the true reaſon why he has no wit-
neſſes. There is no making brick without ſtraw; there is no calling witneſſes
without facts; there is no making a defence without innocence; there is no
anſwering evidence which is true.
“ He has not ſo much as ſuggeſted-what theſe witneſſes could prove if
they were here.
“ I will do him the juſtice to believe that, if he could with truth, he
would not now throw the whole upon the ſtiff-necked, headſtrong diſobe-
dience of his ſon. That unhappy boy is already attainted, and now
actually in cuſtody: though he might have been made the ſcape-goat if
he were out of reach, yet, in his preſent ſituation, I am ſure the noble lord
would not defend his own life by loading this unfortunate youth; much leſs
would he attempt ſuch a kind of defence, contrary to truth; for ſo it muſt
be if either the priſoner himſelf or our evidence is believed.
56 Would he call witneſſes to prove the letters which have been read to be
forged?
Confider how they are authenticated. To ſome his ſignature ſtill
remains. He don't controvert its being like his hand. The bodies are
written
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WILLIAM EARL OF MANSFIELD.
73
.
written by Robert Fraſer. A letter, unqueſtionably ſigned and ſent by the
noble lord to his royal highneſs the duke, was produced: the body is written
by the ſame Robert Fraſer. The ſignature to this, and the ſignature which
remains to the others, appear manifeſtly of the ſame hand. One of the moſt
material letters is an anſwer to a letter written by his ſon : that too muſt be
a forgery; yet it was found in his own cuſtody. But intrinſic evidence of
authenticity is ſtill ſtronger.
“ If the letters are forged, how come they to give ſome account of the
aſſociation, and mention the ſame perſons concerned as your lordſhips have
heard from the general evidence ?
“ If the general evidence is a fiction, how could the ſame ſtory get into
theſe letters ?
“ If Robert Fraſer invented the letters, how came Hugh Fraſer and others
to give the ſame account of the patent and commiffion which is to be found
in them? If the patent and commiſſion never were ſeen nor heard of, how
could they be put into forged letters? But remarks are unneceſſary, where
the caſe is ſo plain. I have ſaid thus much to ſhew, that the noble lord's
alleging he wants aſſiſtance, or has not his witneſſes, may be of more fer-
vice to him than any aſſiſtance or witneſſes he could have; and to ſhew, that
the Conimons have not taken upon themſelves this proſecution to lay the
noble lord at the bar under any diſadvantages in his defence. From the
witneſſes which have been examined, the caſe muſt appear to your lordſhips
ſuch as no advantages could have enabled him to get the better of. There
are many circumſtances which induced them to ſingle out this proſecution,
many circumſtances of a public, many of a peculiar nature. I am almoſt
tempted to mention ſome of them ; but in part they have occurred to your
lordſhips in the courſe of the examination, and I refrain, left I ſhould drop
any thing that might tend to inflame. Every thing of that ſort has, by every
body, been carefully avoided upon this occaſion. That Ciceronian eloquence,
as he calls it, from principles of juſtice and humanity, has not been uſed
againſt him. Every gentleman who has ſpoke in this trial has made it a
rule to himſelf, to urge nothing againſt the priſoner but plain facts and po-
fitite evidence, without aggravation. They have addreſſed themſelves to
your judgement, and not to your paſſions. I dare ſay, your lordſhips have
obſerved that, though the evidence given conſiſts of a variety of facts, fome
more directly affecting the noble lord, others leſs, and ſome perhaps not af-
fecting him at all, neither in the ſumming up the evidence, nor in what I
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now trouble your lordſhips with, has any thing been mentioned as direct
evidence againſt him which is not ſo. Circumſtances which only tend to
corroborate have been mertioned in that light; and evidence, which no:
way affects him, has not been repeated or obſerved upon at all..
“My lords, the whole is now before your lordſhips: it is your province ta
make the conclufion which ought to be drawn from the premiſes."
Mr. Solicitor-general having finiſhed ; lord Talbot roſé, ſaying,
My lords, the abilities of the learned manager, who juſt now ſpoke,
never appeared with greater ſplendor than at this very hour, when his
candour and humanity has been joined to thoſe great abilities which have
already made him fo conſpicuous, that I hope one day to ſee him add luſtre
to the dignity of the firſt civil employment in this nation. My lords, I ob-
ſerve one thing in the defence of the noble lord at the bar, which, for the
fake of the managers, for the repreſentatives of Great Britain, and out of
the regard that I have for their conſtituents who deputed them, I think my-
ſelf obliged to take notice of.
“ My lords, the noble Jordi at the bar in his defence complains, I believe.
very unjuſtly, of the hardſhips he has ſuffered in being deprived of his
witneſſes; and at the ſame time mentions, that there are witneſſes of indif-
putable credit, who were brought up in order to be witneſſes againſt him,
but who have not been examined by the managers, for fear they ſhould, on
their croſs examination, ſupport thofe facts.
“My lords, I therefore now deſire, for the honor of the gentlemen who.
are managers of this proſecution, that the noble lord at the bar may be
aſked, whether he is now willing to have thoſe witneſſes produced, and to;
have them aſked any queſtions concerning that matter ?"
Mr. Attorney-general. My lords, what has been taken notice of by the
noble lord, and what is deſired by him, is extremely irregular, after the ma-
nagers have cloſed and ſummed up their evidence, and the noble priſoner
had liberty and time given him, in the moſt indulgent manner, to make
his defence in ſuch way as he ſhould be adviſed. He was pleaſed to make a
ſpeech to your lordſhips, containing a great variety of facts; but declined
producing any witneſſes, and, though called upon for that purpoſe, thought
proper to acquaint your lordſhips, that he ſhould offer none to ſupport thoſe
facts which he had alleged: your lordſhips have, upon that declaration,
been pleaſed to proceed to hear the managers reply.
« My
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WILLIAM EARL OF MANSFIELD
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My learned friend on my left hand hath executed that part with great
juſtice to the commands of the commons, and all that tenderneſs to the no-
ble priſoner which was conſiſtent with his duty. Your lordſhips have beard
and felt the weight of it.”
Mr. Attorney-general proceeded with great ability, and at
conſiderable length, to oppoſe the admiſſion of witneſſes for the
purpoſe ſpecified by the noble priſoner after the managers had
cloſed and ſummed up their evidence ; yet, in a point of ſo
great importance, Mr. Solicitor-general deemed it to be his in-
diſpenſible duty thus to addreſs the lords :
My Lords,
“ The matter now agitated is of the utinoſt conſequence,
not only to the preſent but to all future proceedings of this kind; and I
doubt whether it is yet thoroughly underſtood in its full extent.
“The witneſſes, the noble lord now propoſes to call, are not to his defence,
or in ſupport of his innocence.
“ If they were, how irregular ſoever it may be to offer them now, in my
opinion, and I dare ſay the other managers are of the ſame, I ſhould be for
conſenting to their being called. We ſhould never contend, though im
ſtrictneſs I might, that any evidence of this kind came too late to be heard.
“ But the deſign of calling them, as now opened, is to ſhew, that, from
ſome obſtruction given to the bringing up his witneſſes, his trial ought to
be put of to an indefinite time; and that he may have new orders to fum-
mon and compel witneſſes to come from Scotland. This we oppoſe, be-
cauſe the application intended to be ſupported by it cannot now be made.
“ The ſpeech inade by my lord conſiſted of two parts : firſt, a deſire to
put off his trial indefinitely ; and, if your lordſhips ſhould not think fit to
comply with his deſire, then he reſted his defence upon obſervations and ob-
jections to the force and credibility of that evidence which had been of-
fered to prove his accuſation.
“ In this he was very proper; for, though a perſon accuſed calls no witneſſes,
yet, if the charge againſt him is not clearly made out by legal and credible
evidence, he ought to be quitted.
Being aſked, whether he had any witneſſes to call, he declared he had
none.
- Had
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“ Had he deſired to také your lordſhips opinion whether the trial ſhould
not ſtay till he could ſend to Scotland for witneſſes, we ſhould have op-
poſed it. Your lordſhips calling to the managers to proceed was a determi-
nation, that you would not deliberate about ſtaying the trial.
** I own freely. to your lordſhips, the reaſon why I did not take particular no-
tice of the noble lord's complaint was, becauſe I underſtood it to be meant
as an artifice to palliate his not going into any evidence : and I did not
think it neceſſary, I did not care, to endeavour to wipe off from his apology
any varniſh of this kind with which he thought fit to colour it. One
thing, had I thought of it, I would have taken notice of: he was pleaſed to
ſay, that ſeveral witneſſes, brought up in ſupport of the proſecution, were
not called by the managers, becauſe they would have proved the hardſhips he
complains of. I can aſſure your lordſhips, and every other gentleman of the
committee will join in what I ſay, no one witneſs was left unexamined for
that reaſon. It is true, more perſons were brought up to be witneſſes than
we called; but the reaſon of not calling them was, either becauſe we thought
what they had to ſay not material enough, or elſe becauſe they were liable
to an objection the noble lord had not made; which, whether well or ill
founded, we did not care to give your lordſhips the trouble of diſputing.
“ In conſequence of what fell from your lordſhips, we told the noble lord
in the courſe of the trial, that any witneſs examined by us ſhould attend to
be examined by him, if he deſired it, and would give notice: we ſhould
have done the ſame witly regard to any perſon brought up as a witneſs,
though not examined.
“ As to this whole matter of complaint, the managers are entire ſtrangers
to it. Nothing of this kind has been done with their privity or knowledge.
“ And this brings me to the point, whether witneſſes ſhall now be heard
at this time to prove any ſuch ground for putting off the trial fine die.
“ We oppoſe it, becauſe, true or falſe, the trial cannot now be put off ;
and it would be a moſt dangerous precedent to go into an ex parte examina-
tion of ſuch collateral inatters. Hearing the evidence fuppofes your lord-
ſhips can do ſomething in conſequence of it: if you cannot, it would be ir--
regular and improper to go into it.
“Before your lordſhips appoint the tiine of trial, you take into conſideration:
the nature of the charge, and the place where the facts ariſe, in order to
allow a reaſonable time for preparation, and bringing witneſſes.
6 Your
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WILLIAM EARL OF MANSFIELD.
77
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66
“ Your lordſhips did fo in the preſent cafe ; and, after weighing all circum-
ſtances, you appointed the 23d of February.
“ If, through any accident, the time fixed is too ſhort, your lordſhips are
always open to applications which muſt be ſupported by evidence to ſhew
the delay is not affected; that all due diligence has been uſed; and that the
witneſſes are material, and expected to come within a certain time.
Upon the application of the noble Jord, your lordſhips deferred this trial
to the 5th of March.
Upon another application by him, you deferred it to the gth of March,
the day named in his petition.
“ If he had any ground ſufficient for deferring the trial longer, he ſhould
have applied to your lordſhips before it began ; but, upon the ground now
mentioned, it could not have been deferred, even in that way, becauſe it is
plain this matter, whatever there be in it, was within his knowledge at the
time of the other applications. Hugh Fraſer, his agent, who went down,
as his lordſhip. ſays, to bring up his witneſſes, made an affidavit, annexed to
a.petition preſented by his lordſhip on the 2d' of March for putting off the
trial; and was called in and examined at your lordſhips' bar.
6. There was likewiſe an affidavit annexed to his lordſhip's petition pre-
ſented on the 3d-of March, and not a ſyllable of this complaint ever fug-
geſted, which ſhews that they thought no ſtreſs could be laid upon it, and
that it was not to be ſupported. In the courſe of the trial hitherto, your
Iordſhips have hearď nothing of it; on the contrary, you have heard of his
witneſſes, and what they were to prove.
“There is no precedent of putting off a trial indefinitely after the evidence
for the proſecution is cloſed; I dare ſay there never will be ſuch a precedent.
At ſooneſt this trial could not come on again before the next ſeſſion of
liament.
“ We oppoſe the attempting to prove a matter upon which
your lordſhips
cannot now do any thing ; but I deſire it may be underſtood, that we do
not oppoſe, though it be at an improper time, the calling any witneſſes
upon the merits of his defence, either to diſprove the evidence againſt him,..
or to aſert bis own innocence."
par-
The encomiaſtic ſtyle in which not only lord Talbot, but alſo
his majeſty's attorney-general, delivered their ſentiments to the.
houſe, as well of the great abilities as of the great tenderneſs
ef
78
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A
of Mr. Solicitor-general to the priſoner, ſo far as was conſiſtent
with his line of duty to the ſtate and to the public, will, it is to
be hoped, be accepted as a proper apology for the introduction
of theſe celebrated ſpeeches, as part of the hiſtory of the life of
the earl of Mansfield..
On the laſt day of the trial, the lord high ſteward, having pre-
viouſly acquainted the priſoner that his peers had found him
guilty of the high treaſon whereof he ſtood impeached, now
aſked what his lordſhip had to ſay, why judgement of death
ſhould not paſs upon him according to law ?
Lord Lovat, in his' turn, commenced his defence with a pā-
negyrick on the Solicitor-general.
“My Lords,
. I am very ſorry I gave your lordſhips ſo much
trouble in my trial; and I give you a million of thanks for your being ſo
good in your patience and attendance while it laſted. I thought myſelf
Very much loaded by one Murray, who, your lordſhips know., was the bit-
tereſt evidence there was againſt me. I have ſince ſuffered by another Mr.
Murray, 'who, I muſt ſay with pleaſure, is an honor to his country, and
whoſe eloquence and learning is much beyond what is to be expreſſed by an
ignorant man like me. I heard him with pleaſure, though it was againſt
me. I have the honor to be his relation, though, perhaps, he neither
knows it, nor:values it. I wiſh that his being born in the North may not
hinder him from the preferment that his merit and learning deſerves. Tih
that gentleman ſpoke, your lordſhips were inclined to grant my earneſt re-
queſt, and allow me farther time to bring up witneſſes to prove my inno-
cence ; but it ſeems that has been over-ruled. All now that I have to ſay
is a little in vindication.of my own character.”
This vindication proceeded to a great length; and lord Lovat
himſelf, immediately before folemn ſentence was paſſed, made
the following curious, unexpected, and good-humoured obſer-
vation on the ſpeech. - I beg your lordſhips' pardon for the
rude, long diſcourſe I made to your lordſhips. I had great need
of
WILLIAM EARL OF MANSFIELD.
79
ap-
+
of my couſin Murray's eloquence for half an hour, and then it
would have been more agreeable."
In this trial, the king's ſolicitor-general ſeems to have been
conſidered as the mirror of eloquence and found judgement.
When we impartially conſider the acknowledged effect which his
firſt ſpeech had on the houſe ; the concurrent teſtimony of
plauſe which flowed from the law-lords ; the impartial and well-
timed approbation of his colleague Mr. Attorney-general Ryder ;
and laſtly, though not leaſt, the repeated encomiums of the priſoner
at the bar, beſtowed on Mr. Murray's eloquence; are not we well
warranted in drawing this concluſion, that theſe concurrent eu-
logies equal, if they do not furpaſs, any tribute of applauſe,
given to the fluent orators of Greece and Rome by their warmeſt
panegyriſts?
In conſequence of the ſolicitor-general having, in his celebrated
ſpeech, taken notice that Mr. Fraſer, the ſon of lord Lovat, was
actually attainted and in confinement, and, from the notoriety of
the fact, that he was forced into the rebellion ; ſome of my rea-
ders
may
be anxious for the fate of that unhappy youth. The
very favorable impreſſions, which the ſpeeches of lord Coke
and Mr. Murray made in his favor, lead to the pleaſing hope
that he would either be acquitted on the trial, or that a
ray of royal mercy would beam on a caſe ſo peculiarly in-
tereſting. He afterwards had the honor and happineſs to bear
the king's commiſſion, and every act of his future life tènded
to prove how forcibly and juſtly the _tender feelings, the ani-
mated diction, and dignified eloquence of lord Coke, and of
Mr. Solicitor-general, were employed in the generous praiſe-
worthy act of ſaving one of the braveſt of men ! Ye who
fought by his ſide, and were animated by his example, at the
ſiege of Louiſurgh, and in divers engagements in the Weſtern
world, ye beſt can proclaim his merits, his unſhaken loyalty, his
dauntleſs courage ! But this is a private appeal. The proceed-
ings of the Britiſh legiſlature, ever' grateful and attentive to re-
ward diſtinguiſhed merit, preclude all farther feeble panegyric of
the
1
80
THE LIFE OF
!
the author of theſe ſheets, by an act paſſed in the year 1774,
intituled, 66 An Act to enable his Majeſty to grant unto Major
General Simon Fraſer, the Lands and Eſtate of the late Simon
Lord Lovat, upon certain Terms and Conditions.” The pre-
amble itates, amongſt other facts, that, in the year 1747, proof
was brought before parliament of the means uſed to involve Si-
mon Fraſer, the eldeſt ſon of Simon lord Loyat, in the late unna-
tural rebellion, at a tender age ; and the ſaid Simon Fraſer,
ever ſince he was capable of acting for himſelf, had teſtified his
loyalty to his majeſty and the royal family, and proved the ſenſe
he entertained of the excellence of the happy conſtitution of
this country, by declining to engage in the ſervice of a foreign
ſtate, though deſtitute of any eſtabliſhment here, and by dedi-
cating himſelf to the ſervice of his country at the beginning of
the late war, upon which occaſion he raiſed, in a very ſhort
time, a large body of men, and commanded a regiment com-
poſed of them, with which he ſerved meritoriouſly during the
courſe of it, and was the firſt who offered to ſet that example,
which in its conſequences proved advantageous to the ſtate,
by calling forth from the corner of the kingdom many thouſand
ſoldiers, whoſe efforts, to demonſtrate their zeal and attachment
to his majeſty's royal perſon and government, contributed to
the glory and ſucceſs of that war ; and that the faid Simon
Fraſer had, in the courſe of his ſervice, attained the rank of ma-
jor-general in his majeſty's army; and, ſince the peace, had been
employed by his majeſty's command in the ſervice of a power
whoſe alliance this country had always deemed important; by all
which his caſe appeared to be peculiarly diſtinguiſhed.
The enacting part enables his majeſty, his heirs and ſuccef-
fors, to give, grant, and diſpoſe, unto major-general Simon
Fraſer, his heirs and aſſigns, all and every the lands, lordſhips,
baronies, and other eſtates whatſoever, which became forfeited
to his late majeſty by the attainder of Simon lord Lovat, and
which were annexed to the imperial crown of theſe realms, by an
act
WILLIAM EARL OF MANSFIELD:
&I
}
1
act of the 2.5th of his late majeſty in the ſame manner, and as
fully and extenſively as the ſame and every part thereof were
veſted in his ſaid late majeſty by the attainder of Simon lord
Lovat; and as the ſame and every part thereof were held, en-
joyed, and poſſeſſed, by lord Lovat before his attainder, upon
certain terms and conditions in the act ſpecified.
Should it be ſeriouſly aſked what coincidence or connection has
the good or ill fortune of Mr. Frafer, or the very maſterly ſpeech
lord Coke, with the publication of the Life of Lord Mansfield,
the author would bég permiſſion to anſwer : They are inter-
woven with an important part of lord Mansfield's legal cha.
racter, and naturally induce a little fober reflection. Great abi-
lities, when they are adorned by temperance and uniformity of
conduct, lead to fame, to honors, and to every thing that is
praiſe-worthy. But is it not very humiliating to reflect, that the
moſt ſhining and pre-eminent abilities, without being under
the guidance of, and aided by, ſound diſcretion, are tranſient,
fleeting, dazzle for a time, and are foon extinguiſhed, like the
ſhort-lived fplendor of a comet? Theſe reflections naturally ariſe
from the inconſiderate life of that eloquent-young nobleman lord
Coke, who lived a few years only after the trial of lord Lovat,
wherein he ſhone ſo conſpicuouſly. Yet his inordinate love of
company, and the rites of Bacchus, foon gained an aſcendency,
and frequently kept him from his pillow till a late hour in the
morning, inſomuch that it was reported on the eve of the trial,
that, in order to preſerve him cool and collected, and to ſend
him home at an earlier hour than was uſual, a brother member
of the houſe of commons was friendly enough to attend him, at
a faſhionable club, the whole of the evening. The very maſterly
and elegant ſpeech, which lord Coke made the next morning,
amply rewarded the friendly care ; but, alas ! his ſudden return to
intemperance ought to be admonitory even to the brighteſt
genius.
M
Not
82
THE LIFE OF
Not an alliance with lady Mary Campbell, daughter of Johng.
duke of Argyle; not the fondneſs of the earl of Leiceſter;.
heightened by that of a father for his only child:; not the doat-
ing affection of a tender 'mother (one of the five daughters of
Thomas, earl of Thanet, emphatically called the good lord
Thanet); not theſe tender ties, conjointly or ſeparately;. could.
wean him from the moſt unworthy indiſcretions, and the moſt
fatal intemperance. But let us caſt a veil over his imperfections !.
Suffice it to add, that theſe inſidious foes, by rapid progreſs,.
firſt invaded his health, his happineſs; then impaired the brilliancy
of his mind, and finally cut the thread of life, ere it had run halfi
its length. He died in the 36th year: of his age..
Felix quem faciunt aliena pericula cautum..
To manifeſt tlie, promptitude of. Mr. Murray in replying to:
arguments without premeditation, the author will beg leave to:
introduce the heads of his anſwer to a ſpeech which he had juſt
heard, in oppoſition to an addreſs. of thanks to the king for his
ſpeech..
"Mr. Speaker,
“ Tire honorable gentleman was much in the right to
begin by telling us, that he deſpaired of any ſucceſs in the oppoſition he:
was to make to the addreſs. propoſed ; for it is fo modeſt, and all the exe.
prefſions fo general, that no juft exception can be found to any one of them,
eſpecially as every gentleman knows, that, in our future proceedings, .we are
not tied down by any words or expreſſions in our addreſs upon this occafion;
and as it is a cuſtom, which I may now call immemorial, to make ſome
compliment to our ſovereign upon every article, which he has been graci-
ouſly pleaſed to mention to us in his ſpeech from the throne, as ſuch com-
pliments have always been made or moved for the very firſt day of the
fefſion, they never were, ngr, indeed, ever could be founded upon what is
called parliamentary knowledge, nor can ſuch knowledge ever be required
or thought neceſſary: they are founded ſolely upon what his majeſty has
been pleaſed to communicate in his ſpeech, the truth of every part of which
is, for that time at leaſt, taken for granted; and, if upon a proper enquiry,
when
j
.)
.
-
WILLIAM EARL OF MANSFIELD.
83
:
when we have all proper lights before us, and have from thence obtained a
parliamentary knowledge; I ſay, if it ſhould then appear that any meafure
has been miſrepreſented in his inajeſty's ſpeech, we may, with abſolute free-
dom, not only cenſure the meaſure, but cenfure and puniſh the miniſters
who adviſed ſuch a miſrepreſentation.
“ After what I have premiſed, fir, I believe, it will be eaſy to anſwer the
objections made by the honorable gentleman to any of the expreſſions pro-
poſed to be made uſe of in our addreſs upon this occafion; but firſt I
muſt obſerve, that, in ſtating thoſe objections, the honorable gentleman
gave me a good deal of pleaſure, though, perhaps, he neither deſigned it,
nor ſuppoſéd he had done fo; the whole tenor of his harangue was a ſort of
anti-oratory, for almoſt every word he ſaid concluded, in my opinion,
againſt what he, I believe, intended; which was a method of ſpeaking ſo
new to me, that I could not help being pleaſed with it. Now, fir, as to the
late treaty of peace, I know as little of it as the honorable gentleman does';
all that either of us knows of it, I believe, is from public newſpapers; and,
if the articles be ſuch as have been related by them, I muſt fay, that I think
it a better and more honorable peace than could be expected by any one
who conſidered the ſituation in which the affairs of Europe were at that
time. For my part, ſir, I am ſo far from thinking the peace a bad one,
that I am ſurprized how the French came to offer or agree to ſuch terms as
they did. Gentlemen talk of our giving up the only conqueſt we have made
during the war ; let us conſider what the enemy have given up. The French
have given up all their wide-extended conqueſts in Flanders, they have
given up near as much as coſt us ten years of the moſt ſucceſsful war we were
ever engaged in to take from them. And the Spaniards, in confideration of
the two ſmall duchies of Parma and Placentia, have given up the large duchy
of Savoy, and the important country of Nice. So that, from the concef-
fions of the enemy, one would really be apt to imagine, that we had been
every where victorious in the war, and that they were in the utmoſt danger
of being undone.
“ Was it ſo, ſir? Does not every gentleman know that it was not ? We
had for three years preceding met every year with a ſignal defeat, and
every defeat was attended with the loſs of whole countries and many forti-
fied towns. This, as the honorable gentleman rightly judged, was not owing
to any miſconduct in our generals, or to any want of bravery in our troops ;
but ſolely to the ſuperior number of the enemy's armies. How could this be
M 2
provided
84
THE LIFE OF
:
--
in
provided againſt by our miniſters? Will any one ſay that this nation could,
or ought to have furniſhed more troops than it did ? But it will be ſaid, our
allies ought to have auginented their quotas : ſo they promiſed to do; and
to theſe promiſes, which were never performed, our miniſters truſted from
year to year, till our allies the Dutch were brought upon the verge of de-
ſtruction. Danger, fir, has always a very different effect upon the imagina-
tion of thoſe that are near to it, from what it has upon the imagination of
thoſe at a diſtance. The former view it through the right, the latter through
the wrong end of a teleſcope. Gentlemen who were fitting ſafely here in
London, or at their ſeats in the country, may think the Dutch were in little
or no danger ; but, when we talk of the neceſſity of making peace, we muſt
conſider in what light the Dutch themſelves viewed the danger they were in.
Suppoſe (for, as I have no knowledge of the fact, I can only ſuppoſe) they
thought the danger ſo great, as to threaten agreeing to a neutrality, if we
did not accept of the terms then offered by France : if they had agreed to a
neutrality, they muſt have withdrawn their troops from the allied army;
which caſe, even after the arrival of the Ruffians, our army would have been
much inferior in number to that of France : and though I only ſuppofe this,
yet I muſt ſay that I think the ſuppoſition highly probable, for the Ruf-
fians were then at ſuch a diſtance, that they could not have joined our army
before the month of July; and, conſidering how quickly the French had
reduced all the towns in Flanders which they could inveſt, the little for-
treffes of Stevenſwaert, Roermont, and Venlo, together with Maeſtricht,
might probably have been reduced before the arrival of the Ruſſians; after
which, the very being of that republic would have depended on the event of
one battle, which is a riſk no wiſe nation will ever chooſe to run, if it can
by any means be avoided ; and, as the French court could not but be fenfi-
ble of this, we cannot too much admire his majeſty's wiſdom in bringing
them to agree to fuch reaſonable terms.
“ But this danger, to which our allies the Dutch were expoſed, was not
the only danger, fir, that made a peace neceſſary for us. Surely, gentlemen
have not forgot the fituation in which our public credit was at that tiine,,
and the danger it was in, of being entirely blown up. Do we not remember,
that all our public funds, except Bank and Eaſt-India, were greatly under
par, and hardly any hopes of the whole money's being paid in upon the new
fubfcription? From this ſituation I think I may with reaſon prefume, that, if
the peace had not been concluded at the very time it was, our public credit
would
WILLIAM EARL OF MANSFIELD.
85
would have been entirely blown up; and in that caſe we could not have fup-
ported the war to the end of that year, much leſs for ten or a dozen years
longer, which we probably muſt have done, before we could have reco-
vered from the enemy all that they had then conquered, even ſuppoſing the
war had, from the moment the Ruſſian troops arrived, taken a turn in our
favor, and had continued ſucceſsful to the end.
“I think I may now conclude, fir, that the noble lord's motion contains
nothing relating to the peace but what we may, from the knowledge we
have of it, agree to, eſpecially as that knowledge has been confirmed by
what his majeſty has ſaid of it in his moſt gracions ſpeech from the throne;
and as we cannot, by any thing we now fay of it, be bound up from cenſu-
ring both the treaty and treaty-makers, in caſe, upon a mature conſideration,
after it has been laid before us, we ſhould think that it deferves ſuch a cen-
ſure. But I am ſure nothing the honorable gentleman has yet been pleaſed.
to object to it can afford ground for fuch a cenſure. The points in difpute
between Spain and us are points merely relating to commerce, which are
never fettled by a general treaty, but left to be adjuſted afterwards by a par-
ticular treaty of commerce; therefore this can be no objection againſt the
treaty's being a definitive treaty ; and, if our allies have all acceded to it
without reſerve, ſurely we may ſay ſo without entering into any diſquiſition
by what means they were brought to accede; for all treaties of peace are
founded
upon the parties at war being reſpectively convinced that they can
do no better. This was the caſe of the late treaty, and this it was that made
France give up all her conqueſts, and Spain paſs by the greateſt part of her
pretenfions in Italy; therefore I was ſurprized to hear the honorable gentle-
man ſay, that no jarring intereſts had been any other way adjuſted than by
compelling our allies to give up every thing our enemies could aſk.
“As to what the honorable gentleman was pleaſed to ſay againſt the next
paragraph of the addreſs propoſed, it is rather criticiſing than arguing, fir..
Surely we have no occaſion for parlamentary knowledge to ſay, that the
public expence has been reduced, when every gentleman knows that many
whole regiments have been already diſbanded, and many large men of war.
put out of commiſſion; and, as the peace was ſigned but laſt month, we may
ſay that this reduction has been made with unuſual diſpatch; for, whatever.
it is in this, it is not uſual in other countries. His objection againſt the
word economy is another objection of the ſame kind; for though his ma-
jeſty in his ſpeech has not made uſe of that word, he can mean nothing elſe
by
.
86
THE LIFE OF
i
.
by recommending to us the improvement of the public revenue, which may
te effectuated ſeveral ways by the economy of our miniſters. If there be
any of our preſent taxes :which cannot be duly raiſed by the laws now in
being, it is our buſineſs and our duty to contrive and eſtabliſh ſuch new nie-
thods as may be effectual ; and, if there be any of our taxes which cannot
be raiſed without great expence, and any new tax could be thought of,
which would produce as much, and could be raiſed at a much leſs expence,
it would be economy in us to aboliſh the old, and eſtabliſh the new in its
room; or if, by one method of raiſing money for the public ſervice, we
muſt pay a premium as well as intereſt for the money wanted, and another
method could be contrived by which we might raiſe the money wanted at
the ſame intereſt without any premium, would it not be economy in us to
chooſe the latter rather than the former? The word economy may therefore
be applied to our conduct in raiſing, as well as to the conduct of the admi-
niſtration in diſpoſing, of the public money; and, if the honorable gentle-
man thinks it neceſſary, I am perſuaded, our preſent miniſters will not be
againſt our enquiring, at a proper ſeaſon, into the buſineſs as well as fala-
ries of all the officers .concerned in collecting or managing the public re-
venue.
“I was glad to find, ſir, that the honorable gentleman, in the humour he
ſeemed to be in, agreed to our acknowledging the bravery of our troeps ;
but I muſt deſire gentlemen to conſider, if what he propoſes to add to this
acknowledgement would not look ſomething like a remonſtrance, and con-
ſequently would be very improper to be made a part of our addreſs upon this
occaſion; for, if it ſhould be thought neceſſary to enquire into the cauſes
which made the events of the war no way anſwerable to the bravery of our
troops, that enquiry may hereafter be ſet on foot whenever we pleaſe, though
nothing be ſaid of it in our preſent addreſs.
* As to what the honorable gentleman propoſes, ſir, with regard to the laſt
paragraph of the addreſs moved for, I believe, upon conſideration, it will
appear that he is not more lucky in his ſubtractions than in his additions.
Was not the deſtruction of the enemy's cominerce of great confequence to
this nation in particular, as well as to the war in general ? Was not the pro-
tection of our own commerce, by deſtroying the enemy's privateers, of great
conſequence? In both theſe have we not had great ſucceſs during the whole
courſe of the war? Can it be any objection to our acknowledging this, that
now and then a ſingle ſhip, or a fleet of ſhips, eſcaped us in ſuch a wide
3
ocean
!
ve
..
WILLIAM EARL OF MANSFIELD,
87
1
i
ocean: as that betwixt Europe and America ? Was not the reduction of the
ifländ of Cape Breton; which was properly a naval expedition, a piece of
fignal fuccefs ? Had not we ſignal.ſucceſs at Porto-Bello and Chagre ? Even
at Carthagena we had ſignal ſucceſs, ſo far as-related to the naval part... Anil
though we had not all thre: ſucceſs that might have been expected at-Toulon,.
and upon ſome other occaſions, he cannot deny our having had ſignal fuc=
ceſs at ſea through the whole.courſe of the war : the enemy were ſo ſenſible
of it, that.I am convinced it was what forced them to agree to reaſonable
terms of peace; notwithſtanding their ſignal ſucceſs upon the continent of
Europe.
66 To: leave out; theſe words would therefore, in my opinion; ſtr.,. be a
neglect of what we owe to Providence, as well as to his majeſty; and as to
the other words propoſed to be left out, the honorable gentleman: certainly
forgot, or did not attend to, the words in his majeſty's ſpeech, to which
theſe words :relate, otherwiſe. he would not have. made any objection to them
His majeſty, in his ſpeech, deſires us only to grant ſuch ſupplies as may be
requiſite for the current ſervice, for our own ſecurity, and for making good
ſuch engagements as have been already entered into, and laid before us ;
therefore, what is propoſed in our addreſs; by making good the nation's en
gagements, can relate to none but ſuch as have been laid before us, and of
ſuch: we may properly enough be ſaid to have a parliamentary knowledge:
we not only know them, but we have approved of them, and conſequently
could not refuſe to make them.good, though theſe words were. entirely left
out of the addreſs..
I hope, ſir, I have now ſufficiently anſwered every ohjection made by the
honorable gentleman againſt what my noble friend has been pleaſed to pro.
poſe to us; but, before I fit.down, I muſt obſerve, that it inight be attended
with very pernicious conſequences, ſhould we be leſs full, or leſs dutiful, in
our acknowledgements to his majeſty upon this occafion, than upon any for-
We have ſtill ſeveral points relating to our commerce and planta-
tions to ſettle with France as well as Spain ; points which could not be, and
indeed never are, fettled, in a general treaty of peace; and yet points which
are of the utmoſt conſequence to this nation. How ſhall we obtain fatis-
faction as to any of thoſe points? No one, I hope, expects that we can.ob-
tain it by favor, which is a motive that is nerer of any.weight in negotia-
tions between independent nations. In all ſuch, fear or national intereſt: are
the only two motives of a public nature that prevail. But it is the national :
intereſt
66
**
mer,
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1
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intereſt of France, and of Spain too during her union with France, neither
to give us ſatisfaction, nor to do us juſtice. Fear then muſt be made to ope-
rate upon botli: cur miniſters muſt threaten to renew the war, if they refuſe
to ſettle thoſe points to our ſatisfaction. Can ſuch threatenings have any
effect, if they ſuppoſe that there is like to be a diſunion between his ma-
jeſty and his parliament ? And, if we ſhould be leſs full or leſs dutiful in our
acknowledgement to his majeſty than hias been uſeful of late years, would
not both the courts of France and Spain have good ground for ſuch a fup-
poſition
" This conſideration will, I hope, fir, induce even the honorable gentle-
man himſelf to give up the critical remarks he hạs made upon the addreſs
propoſed; for that they will have any weight with others, I do not in the
leaſt fear; but I thould wiſh to ſee our addreſs upon this important occaſion
unanimouſly agreed to, eſpecially as what is now propoſed is neither of a
greater length, nor more particular, than what has been uſed for many
years."
A fair occaſion offered, about this period of time, for Mr. Mur-
ray to manifeſt his love of his profeſſion, and an ardent deſire to
lay a better foundation in one of our univerſities for initiating
and training ſtudents in legal knowledge by the foſtering hand of
an able law-profeſor. The firſt duke of Newcaſtle was the warm
friend and patron of Mr. Murray. The civil law profeſſorſhip
in the univerſity of Oxford being then vacant, Mr. Murray took
the liberty of expoftulating with his grace, who was then chan .
cellor of the univerſity of Cambridge, on the appointment of a
fucceffor; and lamented that at Oxford the civil law-lectures, and
the opportunities of gaining legal knowledge by that channel,
were, when contraſted with thoſe of the fifter univerſity, in the
moſt degraded and unworthy ſituation. He then expreſſed an
anxious wiſh, than an able profeſſor of civil law might be ſought
for and invited to fill the vacant ſeat. Dr. Jenner was the per-
ſon thought of by the duke of Newcaſtle ; yet he paid Mr. Mur-
ray the compliment of aſking him, if he could recommend
any
gentleman who would fill it with greater ability. Antecedent to
the eſtabliſhment of the Vinerian profeſſorſhip, the late Mr.
Juſtice
4.
WILLIAM EARL OF MANSFIELD89
.
.
1
Juſtice Blackſtone, who was then at the bar, and had given
proofs that he pofſeffed tho e qualifications which early pointed
him out as the moſt worthy to be promoted on this occaſion, was
by Mr. Murray introduced and warmly recommended to the duke
of Newcaſtle, who conſidered it as part of his duty to probe a
little the political principles of the new candidate, by addreſſing
Mr. Blackſtone, “ Sir, I can rely on your friend Mr. Mur-
ray's judgement as to our giving law-lectures in a good ſtyle, ſo
as to benefit the ſtudents ; and I dare ſay, that I may ſafely rely
on you, whenever any thing in the political hemiſphere is agi-
tated in that univerſity, you will, fir, exert yourſelf in our be-
half." The anſwer was, “Your grace may be aſſured that I will
diſcharge my duty in giving law-lectures to the beſt of my poor
abilities." Aye! aye ! replied his grace haſtily, and your duty
in the other branch too.” Unfortunately for the new candidate,
he only bowed affent; and a few days afterwards he had the
mortification to hear that Dr. Jenner was appointed the civil-
law profeſſor. Nothing leſs than the love of ſcience could, un-
der theſe circumſtances, have induced Mr. Murray and ſome other
friends of Mr. Blackſtone ſtrongly to recommend and perſuade
him to ſit down at Oxford, and to read law-lectures to ſuch ſtu-
dents as were diſpoſed to attend him. The plan was not only at-
tended with profit and pleaſure in the firſt inſtance, but ſoon af-
terwards happily ſuggeſted the idea to the mind of Mr. Viner to
eſtabliſh a real law-profeſſorſhip in the univerſity of Oxford ; and
who fo proper to fill it with eclat, and add luſtre to the Inſtitu-
tion, as Mr. Blackſtone, whoſe Commentaries on the Laws of Eng-
land, on their firſt appearance in the world, drew this. high tri-
bute of reſpect and approbation from lord Mansfield ? On a bro-
ther-peer's having aſked him, as a friend, what books he would
adviſe his ſon to read, who was determined to be a lawyer, the
chief juſtice replied, “ My good lord, till of late I could never,
with any ſatisfaction to myſelf, anſwer that queſtion ; but, ſince
the publication of Mr. Blackſtone's Commentaries, I can never
N
be
go
THE LIFE OF
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may imbibe
be at a loſs. There your ſon will find analytical reaſoning dif-
fuſed in a pleaſing and perſpicuous ſtyle. There he
imperceptibly the firſt principles on which our excellent laws are
founded, and THERE he may become acquainted with an uncouth
crabbed author, Coke upon Littleton, who has diſappointed and
diſheartened many a. Tyro, but.who.cannot fail to pleaſe in a mo-
dern dreſs.?
>>
On the 11th of December, 1747, a bill was ordered to be
brought into parliament, to prevent the inſurance of French ſhips
and their lading during the war. with France. Mr. Nugent:
opened the debate ſo as to leave no doubt on the minds of his
hearers of his great zeal to promote the bill ; yet neither his in: -
genuity in placing the prevalent practice of thoſe inſurances to
the account of ſelf-intereſt on the one hand, nor his high tones
in claſſing them under the head of high-treaſon in law as well as
in foro confcientiæ on the other, were ſufficient to prevent Mr.
Murray and Mr. Ryder, afterwards Sir Dudley Ryder, from dif
charging their duty to their country in ſpeaking againſt the bill.
The fpeech of the former ſeems to be worthy of a place in this
work, from the circumſtance of its giving a very early preſage,
as well of the extenſive knowledge of the ſpeaker; as of his
laudable attention to the intereſts of commerce in general, and
to the preſervation of that branch of it relating to inſurance;
which he adopted thus early in life, and which under his foſter-
ing hand, culture, and protection, has long flouriſhed and become
a valuable branch of Britiſh commerce.
+
6. Mr. Speaker,
" Although I have very little hopes of ſucceeding in an oppofition to what
the honorable gentleman has propoſed, yet, as I have the honor of a ſeat in
this aſſembly, I think the duty I owe to my country obliges me to give my
ſentiments openly and freely, upon the ſubject, becauſe I ſee we are about to
do what we have before often done, upon the like occaſions; we are going to
make a regulation under popular pretences, which, in my opinion, will ruin
a very beneficial branch of trade we are now in poffeffion of, I may fay;
without
1
91
WILLIAM EARL OF MANSFIELD.
1
1
without a rival, and will transfer it to our greateſt rival and moſt dangerous
enemy. This, I ſay, ſir, we have often done before ; of which I could
give a mụltitude of inſtances, but ſhall mention only a few, in order to fhew
how cautious we ought to be of making any new regulations or prohibitions
with reſpect to trade, however plauſible the pretences may be that are of-
fered for inducing our approbation.
“ In the reign of Charles II. our landed gentlemen, eſpecially thoſe in
the Weſt, found that the produce of their eftates, ſuch as cattle, ſheep,
ſwine, butter, and cheeſe, was very much lowered in its price by the impor-
tation of ſuch commodities, eſpecially from Ireland. Though it is the ge-
neral intereſt of every country, where there is any trade or manufacture, to
liave the price of thoſe commodities as cheap as poſſible, becauſe it leſſens
the price of labour, and conſequently enables them to underſell their rivals
at every foreign market; yet the imaginary private intereſt of our landed
gentlemen prevailed, in ſpite of the court, over the general intereſt of the
country, and a law was made for prohibiting the importation of all ſuch
commodities. I ſay, fir, the imaginary intereſt of the landed gentlemen;
for it is certainly their real intereſt to encourage by all poſſible means the
trade, manufactures, and commerce, of their country; but this is a future
diſtant intereſt, which ſtrikes very few men ſo ſtrongly as that which is pre-
fent; and therefore the preſent imaginary intereſt then prevailed over that
which was real, but future. What was the conſequence? As to the black
cattle and ſwine, the Iriſh being thus prevented from importing them into
England, where formerly they were fattened up and killed, the breeders of
ſuch cattle and ſwine were forced to fatten them up themſelves, to ſalt what
they could not find vent for at home, and to ſell their falt beef and pork, as
well as their butter and cheeſe, to the French, who were then juſt beginning
to ſet up manufactories, and to plant their fugar colonies, neither of which
they could ſo eaſily or fo foon have done, had they not been ſupplied with
theſe proviſions from Ireland.
" This was, ſir, the fatal conſequence of our wiſe regulation with reſpect
to Iriſh black cattle, fwine, butter, and cheeſe; but, with reſpect to ſheep,
the conſequence was ſtill more fatal : for, the Iriſh being prevented' froni
bringing their ſheep to England, and being unable to make any thing of
them when killed at home, or to ſend them dead or alive to any foreign
market, they kept them running in their ſheep-walks, and increaſing in
number.ever.y year, merely for the ſake of the wool, by which that com-
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modity was rendered much cheaper in Ireland than it was in England, which
produced two conſequences fatal to our trade and manufactures; for, firſt,
by the cheapneſs of wool in Ireland, great quantities of it were ſtolen away
to France, notwithſtanding the utmoſt we could do to prevent it, and fold
there as cheap as the ſame commodity could be ſold in England, which laid
the firſt and chief foundation of all their woollen manufactures ; and, 2dly,
by the cheapneſs of wool in Ireland the people there were enabled to ſet up
woollen manufactures of their own, which foon came to vie with thoſe of
England; ſo that our merchants found themſelves rivalled and underſold at
all foreign markets by the Iriſh, which led us into the committing of another
moſt egregious foleciſm in our politics with regard to our trade,
“ As I have faid, fir, the merchants, who exported our woollen manu-
factures, foon found themſelves rivalled and underſold at moſt foreign mar-
kets by the Iriſh: this obliged them to endeavour to beat down the price of
our manufactures here at home; and the reaſon they aſſigned for ſo doing
was their being underſold by the Iriſh abroad, which of courſe raiſed a po-
pular clamour againſt allowing the Iriſh to export any woollen manufactures.
As every ſet of tradeſmen, and indeed every particular tradeſman, would
be glad to have a monopoly in what he deals in, it was no way ſurpriſing to
hear ſuch a clamour raiſed among our manufacturers and unthinking people
here at home; and if we could by a law prevent every nation in the world
from carrying on any woollen manufactures, I ſhall grant, that it would have
been right to have prohibited the exportation of woollen manufactures from
Ireland : but as we cannot by a law prevent other nations from being our
rivals in this manufacture, as well as every other; as we can no way do this
but by enabling our own people to work up and ſell their manufactures
cheaper than the fame ſort of manufactures can be worked up and ſold in
any other country, inſtead of prohibiting the exportation of any woollen ma-
nufactures from Ireland, we ſhould have thought only on methods for ren-
dering the materials and labour in England as cheap as they were in Ireland;
and the firſt and moſt obvious method for this purpoſe was, to have repealed
that law which prohibited the importation of ſo many of the neceſſaries of
life from Ireland.
But, fir, inſtead of this, the popular clamour prevailed, and in the
year 1699 a law was paſſed for prohibiting the exportation of any woollen
manufactures whatſoever out of Ireland to any place except England and
Wales. Nay, even to England and Wales the exportation was laid under
ſuch
WILLIAM EARL OF MANSFIELD.
93
ſuch reſtrictions, as made it almoſt impoſſible for the Iriſh to ſell any
of
their woollen manufactures, except in their own country ; the conſequence
of which was of courſe, that many of their manufacturers, both maſters
and ſervants, were obliged to ſeek for employment in foreign countries,
and moſt of them went to France, which eſtabliſhed the woollen manufac-
tures of that kingdom, and increaſed the clandeſtine exportation of wool
from Ireland to France ; ſo that in a little time the French made ſufficient
for their own conſumption, and, by a new foleciſm in our politics, we foon
opened for them a foreign market. But before I explain myſelf upon this
head, I ſhall obſerve, that if we had, in the year 1699, repealed the law
which prohibited the importation of Iriſh cattle, Theep, ſwine, butter, and
cheeſe, it would have enabled the manufacturers in England to work up
and ſell their manufactures as cheap as the Iriſh, and both would have been
ſold fo cheap at foreign markets, as would have generally increaſed the de-
mand, which would have furniſhed employment enough for all the manu-
facturers both in Ireland and England, and would have rendered it impof-
ſible for the French to ſucceed in eſtabliſhing a woollen manufacture of any
kind, becauſe the cheapneſs of our coarſe woollen manufactures would have
made them be run into France, and conſumed there, in ſpite of all the mea-
ſures their government could have taken to prevent it; and every one knows,
that manufactories have in all countries been firſt ſet up by the coarſer fort
of manufactures; conſequently, if we could have prevented the French
from ſucceeding in any of the coarſer fort, we ſhould have prevented their
being ever able to manufacture any of the finer ſort, either for themſelves or
their neighbours.
Thus, fir, by endeavouring to keep up the price of our own manufactures,
at the expence of our fellow-ſubjects in Ireland, we enabled our moſt dan-
gerous enemies to ſucceed ſo far in ſetting up woollen manufactories, as to
furniſh themſelves with what they wanted in that way; and, as I have ſaid,
we at laſt enabled them, by a new foleciſm in our politics with regard to
trade, to become our rivals at foreign markets. What I mean, fir, is our
declaration of war againſt Spain in 1702; for, though we had ſufficient pro-
vocation at that time for declaring war againſt France, the new king
of Spain, whom we had acknowledged but the year before, had given us no
provocation to declare war againſt him; and a regard for our trade with
Spain, which had been always before of great advantage to us, ſhould have
made us avoid being the firſt to declare war againſt that kingdom. Till that
time,
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time, Spain had always been the chief mart for our woollen manufactures; but,
by thus rąſhly declaring war againſt them, we ſhut up, in a great meaſure,
that mart for the woollen manufactures of England, and opened it for thoſe
of France ; for, though we were then wiſe enough not to prohibit trade with
Spain, notwithſtanding the war we had declared, yet 'the war gave ſuch an
interruption to our commerce, and raiſed ſuch an averſion among the Spa-
niards againſt us, that by degrees 'they were' brought into the cuſtom of
wearing French inſtead of Engliſh manufactures.
?? I could mention many other inſtances, fir, where we have injured our
own trade,, and promoted that of our moſt inveterate enemy, by ill-judged
regulations, or iniſtaken politics; but theſe, I hope, will be ſufficient for
ſhewing gentlemen how cautious they ought to be, when any new regulation
is propoſed with reſpect to trade, eſpecially a regulation which may perhaps
ſtrip us of the only branch of trade we now enjoy without a rival, and may
very probably transfer it to our enemies the French. I ſay, fir, a branch of
trade, which we now enjoy without a rival; for, I believe, there is a great deal
more of the inſurance-buſineſs done now in England than in all Europe be-
fides. Not only the nations we are in amity with, but even our enemies the
French and Spaniards, tranſact moſt of their buſineſs of inſurance here at
London ; and I cannot think it any crime in our merchants to correſpond
: with them on this head, no more than it was in our merchants to correſpond
about trade with the Spaniſh merchants during the whole time of the
war in queen Anne's reign. To carry on trade for the mutual benefit of
both nations is not aiding and aſſiſting the enemy, nor is it ſuch a corre-
{pondence as was intended to be prohibited by his majeſty's declaration of
war, eſpecially when it is ſuch a trade as 'muſt always leave a large balance in
ready money here in England.
“ This balance, I ſhall grant, Sir, may appear to be but a trifle when
compared with the expence we are at in ſupporting the war ; but, the greater
that expence is, the more money we are obliged to ſend out yearly on that
account; ſurely, the more cautious we ought to be of parting with any
branch of trade which certainly leaves a balance here : and, if we conſider the
great profits made by the inſurer, the profits made by the broker or office-
keeper, the profits made by the factor, and the profits made by our dealers
in exchange, we cannot ſuppoſe this balance to be ſuch a trifle as the ho-
norable gentleman ſeems inclined to repreſent it. For my own part, I muſt
ſuppoſe that it amounts to a very large ſum annually, when I conſider the
vaſt ſums yearly in ured here upon French and Spaniſh bottoms, both
which
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WILLIAM EARL OF MANSFIELD.
95
:
5
:
!
which I muſt take into the account, becauſe I am of opinion that we ſhall
loſe both by this regulation.
“ Nevertheleſs, Sir, however great I may think this balance, however
dangerous I may think the regulation propoſed, I ſhould readily agree to it,
could I think it certain that the French merchants would find it impoſſible
to meet with good inſurers either at home or in any other part of Europe.:
but I am ſo far from thinking this certain, that I think the certainty lies on
the other ſide. It is well known that there is not a more enterpriſing, ad-
venturous people in Europe than the French naturally are, nor a people that
hare a greater itch for every thing that looks like gaming. Their having no
public inſurance-office, nor any number of private inſurers in France, does
not proceed from a want of rich men who would be ready and willing to un-
dertake this buſineſs, but from the difficulty they find at preſent' to get any
employment in this way." The French merchants have been ſo long .ac-
cuſtomed to our ſhop, and have always found themſelves ſo honorably dealt
with, that they will not apply to any other, and will rather chooſe to pay
commiſſion here, than truſt to any office, or any private inſurer, among
themſelves. Therefore, while we admit them to inſure here, it will never
be in the power even of the government of France to ſet up a public in-
ſurance-office, nor can any private man there meet with encouragement in
this way of buſineſs. · But I am convinced, that, as ſoon as they hear of this
bill's being paſſed into a law, a public office of inſurance will be erected at:
Paris, and multitudes of rich men there will undertake the buſineſs;; becauſe,
after we have baniſhed their merchants from our ſhop, they will apply to-
the ſhops ſet up in their own country, rather than to any foreign: ſhop they
have never been accuſtomed to.
What are we then-to do by this regulation? Why, Sir, we are to ſtrip
ourſelves of a moſt profitable branch of trade, and transfer it to the French,
who could never have got hold of it, if it had not been for this our wiſe
regulation. · And this-will be the effect, not only as to inſurances upon
French ſhips, but, in a very little time, as to the inſurances upon all the
ſhips of Spain and Portugal; for, as the correſpondence between them and
Paris is quicker, and more certain, than the correſpondence between them
and London, they will apply to the offices of inſurance at Paris, as ſoon as
theſe offices have come into a little credit; and, if a public office be ſet up
there, with a large capital, their capital will procure them. credit, as ſoon as
the office is opened..
“ Having
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Having tlius, Sir, ſhewn how probable it is, that the French merchants
will find an eaſy and ſecure acceſs to inſurance at home, the very moment
we exclude tliem from it in England; I think, I have no occaſion to take
notice of the advantages we ſhall reap by the excluſion ; for all thoſe advan-
tages are founded upon a ſuppoſition tliat it will be impoffible for them to
find ſo cleap and fo fecure an inſurance at home as they now find in
England, which is a ſuppoſition that, for the reaſons I hare mentioned,
cannot, I think, with any reaſon, be ſuppoſed; and if this ſhould turn out
to be the caſe, as I am afraid it will, we ſhall ſtrip ourſelves of a branch of
trade by which we now make a clear profit perhaps of ſeveral hundred thou-
fand pounds yearly, and transfer it to our moſt dangerous rival; which is
not, I am ſure, a proper method for bringing the war to a happy and ſpeedy
concluſion.
Having mentioned the war, Sir, I muſt obſerve, that our ſucceſs at
fea this laſt ſummer makes it more unneceſſary for us to think of ſuch a
regulation now, than it has been at any time ſince the war began; and, if
Providence ſhould favor us with the ſame ſucceſs next ſummer, we ſhall have
no occaſion to prohibit inſurances upon French ſhips ; for it will raiſe the
price of inſurance ſo high, that no inan, either in France or any where elſe,
will think of ſending goods by any ſuch thip. Before a merchant ſends out
a cargo, he always firſt fits down and computes what profit he may probably
make by the adventure out and home; and, if the inſurance be ſo high that
no profit he can expect will anſwer it, and ſomething more for his own
trouble, and the uſe of his money, he will certainly reſolve to ſend out no
cargo at all. Therefore, if, by the ſucceſs of our ſquadrons and cruiſers, we
ſhould be able to raiſe the price of inſurance upon French ſhips to ſuch å
height that no trade could bear it, we ſhall much more effectually, and
more ſafely, put an end to the French commerce, at leaſt in their own ſhips,
than we can do by this regulation ; and, if they ſhould fall upon any way to
carry on their commerce in neutral bottoms, this regulation can no way
affect it. This we ſhould attempt ; this, I am very ſure, our miniſters will
do all that lies in their power to effectuate ; and therefore, I think, we
ſhould ſuſpend agreeing to any ſuch dangerous regulation, till we have tried
a little farther what can be done in this way.
66 Before I ſit down, Sir, I muſt take notice of a ſuſpicion, not a ſuppo-
ſition, thrown out by the honorable gentleman, that ſome of our inſurers
have given intelligence to the French of the ſtations of our men of war and
privateers,
-
.
1
WILLIAM EARL OF MANSFIELD.
97
1
any fixed
privateers, in order to prevent the French ſhips on whịch they had inſured
coming in their way. For my own part, I never heard that any ſuch thing
was ſuſpected; but, on the contrary, I have heard that ſome of the richeſt
prizes taken in this war fell into our hands by intelligence communicated by
thoſe employed to get inſurances upon them. To this I muſt add, that it is,
·
in my opinion, impoſſible for our inſurers to give intelligence of the ſtations
either of our cruiſers or privateers, becauſe our cruiſers never know their ſta-
tions till they open their inſtructions at fea, being, as I have heard, directed
firſt to fail to ſuch a ſtation, and there to open their new orders; and as to
our privateers, their ſtation is always left to the direction of the captain,
who may change it as often as he will, and ſeldom goes out with
deſign; or, if he does, he will, for his own ſake, as well as for the ſake of
his owners, let no one into the ſecret.
" I muſt therefore be of opinion, Sir, that neither in this reſpect, nor
any other, our inſurers can do us any prejudice if they would ; nor can they
I think, give the French commerce any advantage, but ſuch a one the
French merchants may meet with at home, the moment we exclude them
from it here. How far the popular clamour without doors may prevail upon
gentlemen within, I do not know; but, as I look upon the expedient pro-
poſed as a very dangerous one, and as an expedient that will certainly be
attended with an advantage to the French trade, and a loſs to our own; as
I hope, and not without juſt grounds, that the advance of the premium will
foon put an entire ſtop to all French inſurances here or any where elſe, and
conſequently to all the French commerce in their own ſhipping, I muſt be
againſt what is propoſed ; and, though I was ſenſible of its being at preſent
a little unpopular to oppoſe ſuch a propoſition, I thought I was, in duty to
my country, obliged to declare my ſentiments openly and freely upon the
ſubject."
as
1.
So early as in 1752, the miſchiefs portrayed by Mr. Murray in
this ſpeech were aſſerted in the Houſe of Commons to have ac-
tually taken place, viz. that regular offices of inſurance were
eſtabliſhed at Paris, Calais, and Bourdeaux, to the great loſs and
diſadvantage of this nation, ſince it had awakened the French
miniſtry from their ſupineneſs and lethargy, and placed the duke
de Penthievre at the head of the inſurance-companies at Paris and
Bourdeaux
O
The
1
)
98
1
THE LIFE OF
The accumulation of honors, and the fair increaſe of fame
which confpicuoufly marked the characters of Mr. Murray and
two or three of his contemporaries at Weſtminſter, with whom
he had aſſociated and formed an early friendſhip, were viewed
by a provincial counſel with a jealous, and poſſibly with an en-
vious eye, ſince Envy. will follow Merit like its phade.
In 175.1,
Mr. Fawcett, the late recorder of Newcaſtle upon Tyne, inſtead
of contributing to the conviviality of the table, convened on a
loyal occafion by the dean of Durham, who gave a dinner to
the principal gentlemen in the neighbourhood on the king's birth-
day, gave a very unexpected and unpleaſant turn to the conver-
ſation by introducing a very ſerious charge. Lord Melcombe
having de die in diem committed the information he received of
this very extraordinary proceeding into writing; the author of
theſe ſheets begs leave to introduce them in lord Melcombe's own
words, extracted from his Diary :
“ Meſſieurs Murray, Fawcett, and Stone, were much acquainted, if not
ſchoolfellows, in early life. Their fortune led them different ways : Faw-
cett's was to be a country lawyer and recorder of Newcaſtle. Johnſon, now
biſhop of Glouceſter, was one of their aſſociates. On the day the king's
birth-day was kept, they dined at the dean of Durham's, at Durham ; this
Fawcett, lord Ravenſworth, Major Daviſon, and one or two more, who re-
tired after dinner into another room. The converſation turning upon the
late biſhop of Glouceſter's preferment, it was aſked, who was to have his
prebend of Durham? The dean faid, that the laſt news from London was,
that Dr.. Johnſon was to have it.” Fawcett ſaid, “ he was glad that John-
ſon got off ſo, well, for he remembered him.a Jacobite ſeveral years ago, and
that he uſed to be with a relation of his who was very diſaffected, one Ver-
non, a mercer, where the pretender's health was frequently drank. This
paſſing among a few familiar acquaintance was thought no more of that time :
it ſpread, however, ſo much in the North (how I never heard accounted for),
and reached town in fuch a manner, that Mr. Pelħam thought it neceſſary to
defire
1
WILLIAM EARL OF MANSFIELD.
99
defire Mr. Vane; -who was a friend to Fawcett, and who employed him in
his buſineſs, to write to Fawcett, to know if he had ſaid this of Johnſon,
and if he had," if it was true.
“ This letter was written on the 9th of January; it came to Newcaſtle the
Friday following ; Fawcett was much ſurpriſed, but the poſt going out in a
few hours after its arrival, "hre immediately acknowledged the letter by a
long, but not very explicit anſwer. This Friday happened to be the club.
day of the neighbouring gentlemen at Newcaſtle.
“ As ſoon as lord Ravenſworth, who was a patron and employer of Faw-
cett, came into the town, Fawcett acquainted him with the extraordinary
letter he had received. He told him that he had already anſwered it, and
being aſked to ſhew the copy, ſaid he kept none; but deſired lord Ravenſ-
worth to recollect if he held ſuch a converſation at the deanry of Durhanı
the day appointed for the birth-day. Ravenſworth recollected nothing at
all of it: they went to the club together, and Ravenſworth went the next
morning to ſee his mother in the neighbourhood, with whom he ſtayed till
Monday ; but this thing, of ſuch conſequence, lying upon his thoughts, he
returned by Newcafile. He and Fawcett had another converſation; and in
endeavouring to refreſh-each other's memory about this dreadful delinquency
of Johnſon, Fawcett faid he could not recollect poſitively at ſuch a dif-
tance of time, whether Johnſon drank thoſe healths, or had been preſent at
the drinking of them, but that Murray and Stane had done both ſeveral
times. Ravenſworth was exceſſively alarmed at this with relation to Stone,
on account of his office about the prince; and thus the affair of Johnſon was
quite forgotten, and the epiſode became the principal part. There were
many more conferences between Ravenſworth and Fawcett upon this ſubject,
in which the latter always perſiſted that Stone and Murray were preſent at
the drinking, and did drink thoſe healths. It may be obſerved here, that
when he was examined upon oath he ſwore to the year 1731 or 1732 at lateſt.
Fawcett comes up, as uſual, upon his law buſineſs, and is examined by
Meſſrs. Pelham and Vane, who never had heard of Mr. Murray or Stone
being named. He is aſked, and anſwers only with relation to Johnſon, ne-
ver mentioning either of the others; but the love of his country, his king,
and poſterity, burned ſo ſtrongly in Ravenſworth's boſom, that he could
have no reſt till he had diſcovered this enormity. Accordingly, when he
came to town, he acquainted the miniſtry and almoſt all his great friends
with it, and infifted upon the removal of Stone.
(The
02
100
THE LIFE OF
1
66 The miniſtry would have ſlighted it, as it deſerved ; but, as he perſiſted,
and had told ſo many of it, they could not help laying it before the king,
who, though he himſelf ſlighted it, was adviſed to examine it, which exa-
mination produced this moſt injudicious proceeding in parliament.”
Such is lord Melcombe's account; and the fame author informs
us, that Mr. Murray, when he heard of the committee being
appointed to examine this idle affair, ſent a meſſage to the king,
humbly to acquaint him, that, if he ſhould be called before fuch
a tribunal on ſo ſcandalous and injurious an account, he would
reſign his office, and would refuſe to anſwer. It came, however,
before the Houſe of Lords, January 22, 1753, on the motion of
the duke of Bedford.
“The debate was long and heavy, ſays lord Melcombe, and the duke of Bed-
- ford's performance moderate enough. He divided the houſe, but it was not
told; for there went below the bar with him the earl Harcourt, lord Town-
fhend, the biſhop of Worceſter, and lord Talbot only. The biſhop of Nor-..
wich and lord Harcourt both ſpoke, not to much purpoſe; but neither of
them in the leaſt ſupported the duke's queſtion. Upon the whole,” lord:
Melcombe concludes, “ it was the worſt judged, the worſt executed, and..
the worſt ſupported point, that I ever ſaw, of ſo mucli expectation.”
The Muſes were invoked, as well as lord Melcombe, to record
this ſingular tranſaction. Whether the Aönian Maids have con-
ferred any favors on another infant votary on this occaſion is not
for the author of theſe ſheets to determine, who can vouch for
the authenticity of the few lines on a ſuppoſed crime, which his
late majeſty king George the Second viewed in its true light.
** Whatever they were,” his late majefty is reported to have ſaid,
“ when they were Weſtminſter boys, they are now my very good:
“ friends.” Shall the doors of royal mercy be open to all with this
curious exception
except the indiſcretions of inconſiderate
youth
:
1
To probe thy crimes, diſloyal FIEND,
See council of the ſtate conven'd;
-
My
WILLIAM EARL OF MANSFIELD.
IOI
“ My lords,” (an age-wiſe peer addreft,)
" Theſe crimes convulſe my loyal breaſt!”
No woman in adultery caught;
Rife, Mitred-head! with treafon fraught !
“ Ere manhood's down,” accuſers ſay,
“ Had grac'd his chin, ere taught to pray,
He drank, devoid of all detection,
Diſloyal healths with genu-flection.”
From regions cold to milder ſkies
Fame on her dew-bright pinion flies,
Reveals the ſecret, ſtoops to pry,
Bids MERCURY to ſtate guardians fly,
Sends DISCORD, with her hideous mouth;
T inflame the regions of the South,
While Envy rears Sedition's creſt,
In Fawcett's form, by demons dreſt.
A Sylph here whiſper'd,
66 Demon lly,
Law had a finger in the pie !
With Ciceronian eloquence,
Prepar'd to plead his own defence,
Murray, all-graceful, hurl'd defiance
At Fawcett and his Grand Alliance *
Then ſilence broke: “ Moſt Noble Præſes,
Call for the treaſon—nom-the theſis
Of college-youths from Alma Mater,
Who, ſteal, with pious wiſh to cater
Viands and wine. Alert who think
Hebe will grace the healths they drink;
Rome might our juv'nile thoughts engage,
But ALBION our maturer age,
Come, DORSET, come, with all thy worth,
If embryo treaſon e'er had birth,
12
i
*.64 Grand alliance."-Lord Ravenſworth, the patron and warm friend of
Mr. Fawcett, formed an alliance in the coal-trade with the late Mr. Bowes
and others, which gained the appellation of the grand alliance.
E'er
102
THE LIFE OF
E'er flow'd in deep polluted tide
Within theſe veins-hall Dorſet hide
The foul contagion No.-Reveal
Truth, naked truth, who beſt can tell.
O Portland! would thy loyal line,
The bramble with the myrtle twine,
A traitor in a Murray find,
To poliſh and improve the mind,
To trace the ſprings, unlock the ſtore,
Of antient * and of modern lore?
As ſoon might Fred'ric's ROYAL SIRE
Around the Nation's hope plant treafon dire !
The tree beft by its fruit is known,
Thus judge of Johnſon, Murray, Stone !
Like a firm phalanx, lo! we riſe,
Whoſe.conſcious innocence defies
The ſhafts of malice, poiſon'd dart
Of Envy aim'd at feeling heart.
Let our accuſer, face to face,
The latent ſeeds of treaſon trace,
Before this great tribunal ſtand,
And with our crimnes ſtain Albion's land."
Fawcett look'd penſive, heav'd a groan,
But no man dar'd to throw a Stone!
The ſpeech of his majeſty's ſolicitor-general on this trying oc-
cafion, wherein he appealed to the dukes of Dorſet and Portland
in particular, and to the lords in general who were then preſent
in council, to bear teſtimony to his principles, to his unſhaken
loyalty, and the love of his ſovereign, is deemed to be one of the
fineſt compoſitions in the Engliſh language.
« Of antient and of modern lore"--alludes to the two letters in this
collection, which were written by Mr. Murray, when he was a young map,
for the uſe of the duke of Portland. See pp. 12, 17.
5
In
WILLIAM EARL OF MANSFIELD.
103
.
In the elegarit and valuable repoſitory of a very learned and
dignified friend of lord Mansfield, a ſingle copy of this invaluable
fpeech is ſuppoſed to be ſafely depoſited ; and it is devoutly to be
wiſhed, that ſo great a hidden treaſure may not be for ever buried
in oblivion.
Biſhop Johnſon took another method of defence. Conſcious
that Fawcett had exceeded the bounds of decency, and the plain
path of rectitude, by implicating himn in the charge, the prelate
went to Fawcett's chambers in the Temple, and deſired an inter-
view, but in vain. Diſſatisfied with the anſwer, that Mr. Fax-
cett was not at home, his lordſhip renewed his viſit very early
the next morning, and the laundreſs, not being in the ſecret,
confeſted that her maſter was yet in his bed. The biſhop deter-
mined to wait till he aroſe, and poor Fawcett left his thorny
pillow with reluctance, for ſomething ſharper than thorns
awaited him, an interview which he could not avoid ; the reſult
of which foon produced expreſſions of deep contrition, a perfect
willingneſs on his part, either to read, or write, a recantation of
his errors reſpecting the biſhop, whoſe preferment (the reader
will be pleaſed to recollect) was the primary and principal topic
of the table converſation. The latter mode was adopted, and
the following declaration, tranſcribed from the original letter,
now in my poſſeſſion, was made :
My Lord,
London, 29th January, 1753.-
" I take the liberty of giving you the trouble of this letter,
in order to wipe off any reflections which may have been to your lordſhip's
:
prejudice, from a miſconſtruction or miſrepreſentation of any thing ſaid by
me at the dean of Durham's laſt ſummer. It is now, I believe, near twenty
years ſince your lordſhip and I met at my relation's, and before that time. I
never had any acquaintance with your lordſhip ; and it really ſurprizes me
very much, that any inference from what I ſaid of my relation's principles in
politics ſhould, by any one, be applied to your lordſhip. It is a: very diſa-
greeable thing to be giving an account of what has paſſed in any converſa-
tion ; but it is my duty, in the moſt folemn. manner, ta declare, that I did
not;
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THE LIFE OF
not, and could not, ſay any thing which in the leaſt could, or which was
any way meant by me to charge your lordſhip with being the propoſer of, or
ever being preſent at, the drinking of any diſloyal healths. I am very ſorry
for the trouble you have had about this affair, and am, with the greateſt
reſpect,
“ My lord,
“Your lordſhip's moſt obedient humble ſervant,
66 CHR. FAWCETT.
“Whatever has been conſtrued as a ſurprize of mine at your lordſhip's
preferment, I am ſure it was meant by me as an intimation only, that your
: lordſhip was fortunate in having the preferments drop at the time they did.
“ Lord Biſhop of Glouceſter.”
In 17 54,
Sir Dudley Ryder, his majeſty's attorney-general, was advanced
to the dignity of lord chief juſtice of the court of King's Bench;
and on that occaſion his majeſty's ſolicitor-general, Mr. Murray,
was promoted to fill the high ſtation of the king's attorney-ge-
neral. This promotion did not alienate him from the honorable
-ſociety of Lincoln's Inn, whoſe chief ornament he had many
years been ; but the interval was not long before he ceaſed to be
a member of that ſociety.
In 1756,
the death of lord chief juſtice Ryder gave riſe to a ſecond fuc-
ceſſion, and the king's attorney-general was appointed to that
high office.
Previous to his taking his ſeat as lord chief juſtice, the uſual
ceremony of taking leave of alma mater, or the law-ſociety of
which he was a member, was to be reſpectfully obſerved. Whe-
ther the origin of this laudable cuſtom is to be claſſed among
thoſe good old foſter-fathers who have contributed to raiſe emu-
lation in the ſtudents of the ſociety, or whether it was deſigned to
manifeſt the gratitude of the latter, for the honor which every
high
WILLIAM EARL OF MANSFIELD.
105
1
high character confers on the ſociety. Whatever laudable mo .
tive introduced the ceremony, no man of ſenſibility could be pre-
ſent in Lincoln's Inn Hall, when the honorable Mr. Yorke, on
whom devolved the honor of making the complimentary ſpeech
to the new lord chief juſtice, and of preſenting him with a votive
offering of a purſe of gold, in the name of the ſociety, without
being forcibly ſtruck with the favorable impreſſion, that he was
the worthy ſon of the great lord Hardwicke. A fair occaſion this
for Mr. Murray to retaliate, who elegantly admitted and avowed,
that Laudatus à laudato viro made unmerited praiſe itſelf pleaſing.
The ſubſtance of this elegant reply, delivered with the greateſt
grace, eaſe, and perſpicuity, was :
" I am too ſenſible, Sir, of my being undeſerving of the praiſes which
you have ſo elegantly beſtowed upon me, to ſuffer commendations ſo delicate
as yours, to inſinuate themſelves into my mind; but I have pleaſure in that
.kind partiality which is the occaſion of them: to deſerve ſuch praiſes is a
worthy object of ambition ; and from ſuch a tongue flattery itſelf is pleafing.
“If I have had in any meaſure ſucceſs in my profeſſion, it is owing to the
great man, who has preſided in our higheſt courts, of judicature the whole
time I attended the bar. It was impoſſible to attend him, to fit under hiin
every day, without catching ſome beams from his light. ' [In this place he
enumerated lord Hardwicke's particular excellences, and then went on.]
The diſciples of Socrates, whom I will take the liberty to call the great law-
yer of antiquity, ſince the firſt principles of all law are derived from his phi-
loſophy, owe their reputation to your * having been the reporter of the
ſayings of their maſter. If we can arrogatė nothing to ourſelves, we may
boaſt the ſchool we were brought up in; the ſcholar may glory in his maſter,
and we may challenge paſt ages to Thew us his equal.
“ My lord Bacon had the ſame extent of thought, and the ſame ſtrength
of language and expreſſion ; but his life had a ſtain.
My lord Clarendon had the ſame abilities, and the faine zeal for the
conſtitution of his country; but the civil war prevented his laying deep the
- foundations of law; and the avocations of politics interrupted the buſineſs
of the chancellor.
--
* Mr. Charles Yorke.
P
- My
106
THE LIFE, &c.
..
+
My lord Somers came the neareſt to his character ; but his time was ,
tort, and envy and faction ſullied the luſtre of his glory.
“ It is the peculiar felicity of the great man I am ſpeaking of, to have
preſided very near twenty years, and to have ſhone with a ſplendor that
has riſen ſuperior to faction, and that has ſubdued envy.
“ I did not intend to have ſaid, I ſhould not have ſaid ſo much upon this
occaſion, but that, in this fituation, with all that hear me, what I ſay muſt
carry the weight of teſtimony rather than appear the voice of panegyric.
“. For you, Sir, you have given great pledges to your country; and, large :
as the expectations of the public are concerning you, I dare ſay you will an--
fwer them.
“ For the ſociety, I ſhall always think myſelf. honored by every mark of
their eſteem, affection, and friendſhip; and ſhall deſire the continuance of
it no longer than while I remain zealous for the conſtitution of this country,
and a friend to the intereſts of virtue:”.
On this pleaſing occaſion the author of theſe ſheets had the:
honor to be preſent (ſeveral of his friends who were alſo preſent.
are yet in exiſtence); and can bear ample teſtimony to the tribute
of applauſe, to the general joy, and the marked approbation of
the audience. He was alſo preſent on a ſimilar occaſion, when Sir
John Willes took. leave of the ſociety, on his being appointed .
lord chief juſtice of the court of Common Pleas in 1753, who, in
a few words, wittily ſaid a great deal to the purpoſe.. He po-
litely thanked Mr. Attorney-general for all the fine encomiums
he had beſtowed on:one who very little merited them, but who
begged permiſſion to conclude with a very honeſt declaration of
the higheſt authority,, " The lot is fallen unto me in a fair ground,
yea I have a goodly heritage.”
1
!
!
C H A P-
CHAPTER THE SECOND.
P 2
!
( 109 )
1
CHAPTER II.
.
the great
The honorable Mr.MURRAY, his majeſty's attorney-general, was,
on the 8th of November, 17.56, called to the degree of ſergeant,
and about eight in the evening was ſworn in lord chief juſtice of
the court of King's Bench, in the room of the late lord chief
juſtice Sir Dudley Ryder, who died on the 25th of May, 1756,
before the lord chancellor, the earl. of Hardwicke, at his houſe:
in Great Ormond' Street, in the preſence of the three judges, and
moſt of the officers of the court of King's. Bench.
His lordſhip took the oaths of allegiance and fupremacy on his
knee, and the oath of office ſtanding. Immediately afterwards
great ſeal was put to.a patent, which had before paſſed all
the proper offices, creating his lordſhip Baron of Mansfield in
the county of Nottingham,, to. him and the heirs. male of his
body.
Thurſday, November 11, 1756, lord Mansfield took his place
as lord chief juſtice.
Notwithſtanding the new lord chief juſtice had been habituated
to, and had long flouriſhed in, a court of equity, where his Cice-
ronian eloquence firſt diſtinguiſhed him, eſtabliſhed his fame,
and acquired the appellation of a bright ornament of that court,
at a period when the eloquence of the Chancery bar ſhone in
great purity and perfection under the auſpices and the benign
influence of lord chancellor Hardwicke ; yet no ſooner was lord:
Mansfield called to preſide in the firſt law court in this kingdom.
thar:
IIO
THE LIFE OF
than in a dry and trivial cauſe, an action of debt *, for a penalty
of forty ſhillings for every month, incurred by 5 Eliz.cap.4. ſect. 31.
for exerciſing the trade of a brewer, without having ſerved an ap-
prenticeſhip, the found judgement of the new chief juſtice, and
his clear comprehenſion of all the circumſtances of a caſe, unim-
portant at the firſt bluſh, but the very reverſe when viewed in
its proper light in a great commercial country.; theſe irreſiſtibly
made a moſt favorable impreſſion on the bar, on the audience,
.6.6
other nioney.
* Among many cogent reaſons aſſigned by the chief juſtice as the ground
of his opinion, that Mr. Chace, the defendant, was not liable to the penalty
in the act, the few following outlines are ſelected :
“ In many conſiderable undertakings it is abſolutely neceſſary to take in
perſons as partners op to ſhare the profits, and riſk the loſs; and the general
uſage and practice of mankind ought to have weight in determinations of
this fort, affecting trade and commerce, and the manner of carrying them on.
“ It is. notorious, that many partnerſhips are entered into upon the founda-
tion of one partner contributing induſtry and ſkill, as in this caſe, and the
Many great breweries and other trades have been carried on for the be-
nefit of infants and refiduary legatecs, under the direction of the Court of
Chancery.
“Now if the plaintiff's conſtruction was to hold, the whole direction and
decree of the Court of Chancery was contrary to law and to an expreſs act of
parliament.
6.6 It would introduce the utmoſt confuſion in affairs of trade and com-
merce if this conſtruction ſhould prevail. On the other hand I fee no in-
convenience. It is exactly the ſame thing as to the trade in every iota,
whether this partner has, or has not, ſerved an apprenticeſhip; therefore, I
think the defendant not liable to the penalty of 5 Elizabeth.'
In this judgement all the other judges concurred. Mr. Juſtice Fofter, in
expreſſing his opinion, faid, “ He had prepared himſelf to give his reaſons
at large; but, as the lord chief juſtice had gone through them fo fully, and
enforced them in ſo clear and ſåtisfactory a manner, he would only in ge-
neral declare his concurrence.'
Again. In relation to a brew-houſe on the caſe of Wright, on the de-
miſe of Green againſt Proctor, lord Mansfield obſerved, “ Green was to be
a gentleman in this affair, Ekins to furniſh ſkill and money, Proctor to con-
tribute labor and attendance." Vid.
Vid. 4 Burr. 2209.
of Vid. I Burr. P. 7.
and
WILLIAM EARL OF MANSFIELD.
III
and drew a ſincere and handſome acknowledgement from that
able judge, Mr. Juftice Foſter, then fitting on the bench.
In the ſame year, 1756, a caſe was ſent out of Chancery to the
sourt of King's Bench, Robinſon and Robinſon *, which is more
worthy of notice, as it manifeſts the great contrariety of opinions .
on a queſtion which has been long diſcuſſed, and much agitated
in law.
Before lord Mansfield had been ſix months in the poſſeſſion of
tlie dignity of lord chief juſtice he was, on the 9th of April,
1757, appointed, pro tempore, chancellor of the Exchequer ; and
g!
.
*: George Robinſon, of Bochym in Cornwall, Eſquire, made his will, and
after giving his wife one guinea, and his father-in-law a groat, gave the
greateſt part of his real eſtates to Lancelot Hicks of Plymouth, in the county of
Devon, Gentleman, for and during the time of his natural life, and no longer,
provided that he alter his name and take that of Robinſon, and live at his
houſe at Bochym ; and after his deceaſe, to ſuch ſon as he ſhould have, law-
fully to be begotten, taking the name of Robinſon, and for default of ſuch
iſſue, then he bequeathed the ſame to his couſin, the defendant, William
Robinſon.
In April 1733, we find that, in another part of this caſe, on this very
will, Sir Joſeph Jekyll held Lancelot Hicks to be entitled to an eſtate for his
life, remainder to his eldeſt and but one fon for life, remainder to Wil--
liam Robinſon, the devifee over.
In 1734 lord Talbot, on a re-hearing, was of the ſame opinion, yet the
previous decree of a court of equity, confirmed on a re-hearing, did not pre-
vent the unanimous certificate of the judges in the King's Bench in favor of
an eſtate tail by implication, viz. “ We are of opinion that, upon the true
conſtruction of the ſaid will of the teſtator George Robinfon, the ſaid Lan-
celot Hicks muſt, by neceffary implication to effectuate the manifest general in-
tent of the ſaid teftator, be conſtrued to take an eſtate in tail male, he, and
the heirs of his body, taking the name of Robinſon, notwithſtanding the
expreſs eſtate deviſed to the ſaid Lancelot Hicks for his life, and no
longer."
This. certificate was confirmed' in Chancery, and a decree. made ac-
cordingly.
On an appeal to the Houſe of Lords from that decree, the opinion of all
the judges was aſked. It was delivered by lord chief baron Parker, with the
reaſons at large ; and they unanimoully agreed with the above certificate,
upon the above grounds ſuggeſted thereby. Whereupon the decree was af-
firmed by the lords, on the 14th of February, 1758.
in
--
I I2
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in this office, principally through his mediation, the coalition
between Mr. Fox, afterwards lord Holland, and Mr. Pitt, after-
wards earl of Chatham, was brought about, the former having
been made paymaſter of the forces, and the latter principal fe-
cretary of ſtate ; a coalition which was of the moſt ſingular fer-
vice to the country, by uniting all the great leaders of the diffe-
rent parties, and thereby giving an energy to the war we were
then engaged in, and which terminated fo gloriouſly and ſuc-
ceſsfully to the Britiſh arms.
tome
1757.
A diſpute between two candidates reſpecting the right to a
Southwell fellowſhip *, in this year, came in a very learned and
queſtionable
* Maſters and ſenior fellows of John's College, Cambridge, verſus To-
dington, clerk.
After a long debate had been ſpent, principally in reading numerous La-
tin extracts from antient ſtatutes of biſhop Fiſher, and ſeveral of queen Eli-
zabeth's ſtatutes having been introduced and read, on a ſuggeſtion by the
counſel for the viſitor, that although biſhop Fiſher, as ſurviving executor of
Margaret counteſs of Richmond, gave ſtatutes, yet he had no power to
do ſo, and that therefore queen Elizabeth gave freſh ſtatutes. The lord
chief juſtice, not to diſappoint public expectation, ordered that it ſhould
ſtand over till the next day, and added, “ Let us have copies of the material
fatutes in the mean time.”
In the ſecond day's argument the ſolicitor-general, Mr. Yorke, and Mr.
Norton, diſplayed great power, deep learning, and delivered their- argu-
ments with animation.
On the day following lord Mansfield obſerved, that, upon looking into
the papers left with him, he found it neceſſary towards coming to a complete
underſtanding either of the ſtatutes or of the deed, “That the prior confti-
tution of the college antecedent to both ſhould be laid before the court,” as
both the deed, and alſo queen Elizabeth's ſtatutes expreſsly refer to this prior
conſtitution of the college, and conſequently muſt be, in ſome meaſure, un-
intelligible and inexplicable, unleſs it be alſo known " what the prior confti-
tution was. He propoſed therefore, that the parties ſhould, in the beſt
manner they could, lay this conſtitution before the court, and that the caſe
would be ſpoken to again in the next term, not by all the counſel arguing it
over
WILLIAM EARL OF MANSFIELD.
113
queſtionable ſhape before the court of King's Bench, and inaf-
much as the doctrine of the origin of the old colleges in both
univerſities,
over again, but by only one counſel on each ſide, who ſhould apply them-
ſelves to ſuch concluſions as might ariſe from ſuch prior conſtitution of the
college, and be applicable to queen Elizabeth's ſtatutes, or to the deed of
covenants.
The caſe was accordingly adjourned till the next term; and the lord chief
juſtice, by his repeated requiſitions to the parties for additional papers and
ſtatutes, having made himſelf coinpletely maſter of the ſubject, we find him
in the next term engaged in diſputing every inch of ground, which he
deemed unneceſſary to be trod over again, and in combating the ſtrong
efforts which were made to prevent a ſummary, and, as Mr. Norton ſtrongly
contended, a premature determination.
Mr. Solicitor-general having propoſed to conſider three diſtinct quef-
tions, viz.
I. Whether the biſhop was not as extenſive a viſitor under the old conſti-
tution as under the new? II. Whether the college are not bound by the
acceptance of the new ſtatutes ? On this head lord Mansfield wittily ob-
ſerved, “ The college will not, moſt undoubtedly, agitate that queſtion,
for if they do, they muſt give up all their livings, &c. and all other advan-
tages they claim under them.” This ground was, of courſe, abandoned; and
Mr. Solicitor-general, in his turn, ſtood corrected. So the great Eraſmus,
when called upon to give his decided opinion between pope Leo and the
great reformer Luther, had ſome faults to find with both, and, in fumming
up his charge againſt the latter, obſerved, that 'poor Luther had ſinned
grievouſly and in a twofold capacity, firſt, in touching the pope upon his
crown, and, ſecondly, the monks upon their bellies. The monarch ſmiled,
and never forgot Eraſmus's concluſion of " Tetigit coronam pontificis, et ventres
monaſticorum. When Mr. Norton, with great ability, in his turn, ſtrongly
contended, that it was premature to determine then whether the biſhop of
Ely had juriſdiction; that there ought to be a rule for the plaintiffs to de-
clare, that ſuch was the courſe of the court, and it had not been uſual to
examine the matter upon ſhewing cauſe ; after a declaration in prohibition,
the whole would appear upon record, be folemnly judged, and the judge-
ment might be reviewed upon a writ of error. To all which the lord chief
juſtice anſwered fully, and with great energy. A few general obſervations
only will be ſelected in proof of his ſenſe of a delay in juſtice, and of unne-
ceffary circuity in proceedings of this nature : 6. If the party who applies for
a prohibition has a right to declare, though the court ſhould ſee no ground
for the motion, a rule “ to Thew cauſe why the prohibition ſhould not be
granted” is to no purpoſe, and hearing counſel upon the ſufficiency of that
cauſe is time mis-ſpent.
Q
If,
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THE LIFE OF
univerſities, and the ingrafted fellowſhips therein is preſumed to
be doctrina paucis cognita; it is reaſonable to hope that a ſummary
detail of lord Mansfield's elaborate diſcuſſion thereof will not be
diſpleaſing
On the 29th of June, 1757, the important queſtion was dif-
cuſſed in B. R. whether a court of law was not inveſted with
power to relieve againſt fraud and impoſition ? As it has been
frequently ſaid and inſiſted, that lord Mansfield introduced more
equity * into a court of law than any of his predeceſſors had done;
the
If, in caſes of this kind, the court ſhould too eaſily yield to hang up the
matter, by letting the plaintiff declare in prohibition, redreſs would come
too late, and coſt too much. I was very deſirous, as there is no fact dif-
puted, to go fully into the argument now, and, if I ſaw no ground to doubt
of the biſhop's juriſdiction as viſitor, to ſtop unneceſſary delay, vexation,
and expence.
The ſubject matter of the complaint to the viſitor is a competition for
preſent maintenance and education upon an eleemofinary foundation. The
cauſe of the contention is a controverted election, which is too apt to engage
and animate the electors.
In compaſſion to the candidates, and for the peace of this learned body,
the diſpute ought not to be ſuffered to continue longer than is abſolutely un-
avoidable. I have procured information concerning moſt of the colleges in
Oxford and Cambridge ; and I find that moſt of the old colleges in both.
univerſities conſiſt and are made up (leſs or more) of ingrafted fellowſhips,
and ingrafted by indentures too; and all theſe are conſidered as part of the
ald body, unleſs there be any particular exception by the terms of the new
foundation. I am fatisfied, upon mature reflection, the college would
tremble at the conſequence of leaving every election into any of theſe ingrafted
fellowſhips, or any other diſputes concerning them, open to courts of law,
and the expence and delay attending ſuits in them. It ſeems to me very
clear that the bjíhop is as much judge of this complaint, as if it related to
one of the old fellowſhips: and, if it related to one of the old fellowſhips, I
think the juriſdiction of the bishop as viſitor moſt evident. Therefore I am of
opinion, that the cauſe ſhewn againſt this rule is ſufficient, and it ought to
be diſcharged. In which opinion the other judges preſent concurred, and
the rule was diſcharged accordingly.
* The following obſervations by the lord chief juſtice, reſpecting new
trials and the right which a court of law ought to exerciſe in granting relief
againſt fraud and impoſition, aroſe in Trinity term 30th and 31ſt George II.
in
WILLIAM EARL OF MANSFIELD.
115
the author of theſe ſheets is deſirous in the diſcuſſion of this mat.
ter of diſcharging his duty impartially, and in order thereto will
beg
66
in the caſe of Bright, executor of Hannah Criſp, widow, againſt Eynon,
on a motion for a new trial on payment of coſts. The plaintiff's counſel ob-
tained a rule to ſhew cauſe why the verdict ſhould not be ſet aſide upon pay-
ment of coſts; whereupon lord Mansfield ſaid, that he did not chuſe in
any cauſe tried before him to conclude the inatter by a ſhort report, “ that
he was ſatisfied or diffatified with the verdict." He would ſtate the caſe
particularly to the court, and reſerve declaring his opinion of the verdict
(which he had not yet intimated either at the trial or ſince) till he had
heard the counſel on both ſides.
This was an action upon the caſe brought by the plaintiff as executor of
Hannah Criſp, widow, deceaſed, againſt the defendant, upon a common
promiſſory note for payment of fixty pounds and legal intereſt.
The defendant Eynon, who ſigned the note, ſet up a diſcharge in the fol-
lowing words:
I promiſe unto John Eynon, that, in conſideration of his paying unto me
intereſt for ſixty pounds, he has of mine during my life, after the rate of
five pounds per cent. per annum, that then the ſaid fixty pounds, at iny de-
ceafe, ſhall be his, and his note for the ſame ſhall be void and of none effect.
Witneſs my hand this roth day of October, 1753, Hannah Criſp.” The
body was all bis own hand; but he called two witneſſes, who ſaid they bes
lieved the name ſubſcribed to be the hand of the teſtatrix; but their know-
ledge of her hand was very ſlight, one of them having only ſeen her fign
a receipt.
Lord Mansfield, after having ſtated all the circumſtances of the caſe fully,
ſaid, he left two queſtions to the jury: Ift, “ Whether the name of the teſta-
trix was forged;" 2d, if they took it upon the evidence laid before them to
be her hand, then, “ whether it was not obtained by fraud, and without her
knowing the contents and effect of the writing ſhe ſigned." The jury found
for the defendant. Lord Mansfield intimated nothing then as to his own
opinion of the cafe ; and profeſſedly avoided doing it now till he ſhould
have heard the counſel. They were accordingly heard; and they who
ſhewed cauſe againſt the rule, went very much at large into the propriety
and riſe of granting new trials. They urged that a verdict ought to be con-
clufive where evidence of any fort was given on both fides. That the for-
gery here was the only queſtion : if the plaintiff objected fraud and inpoſition,
he muſt go to a court of equity for relief. Lord Mansfield : Trials by
jury in civil cauſes could not fubfiſt now without a power ſomewhere to
grant new trials. If an erroneous judgement be given in point of law, there
are many ways to review and ſet it right. Where a court judges of fact upon
diſpoſitions in writing, their ſentence or decree may, many ways, be reviewed
and
Q2
..
116
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li
beg permiſſion, as occaſion may offer, to point out the true
ground of ſuch adoption, by aſſigning lord Mansfield's own rea-
fons
and ſet right. But a general verdict can only be ſet right by a new trial,
which is no more than having the cauſe more deliberately conſidered by ano-
ther jury; when there is a reaſonable doubt, or perhaps a certainty, that
juſtice has not been done. The writ of attaint is now a mere found in every
caſe : in many it does not pretend to be a remedy. There are nurnberleſs
cauſes of falſe verdicts without corruption or bad intention of the jurors.
They may have heard too much of the matter before the trial, and imbibed
prejudices without knowing it. The cauſe may be ſo intricate, the exami-
nation may be ſo long, as to diſtract and confound their attention. Moſt
general verdicts include legal conſequences, as well as propoſitions of fact: in
drawing theſe conſequences, the jury may miſtake, and infer directly con-
trary to law. The parties may be ſurpriſed by a caſe falſely made at the
trial, which they had no reaſon to expect, and therefore could not come
prepared to anſwer. If unjuſt verdicts, obtained under theſe and a thouſand
like circumſtances, were to be concluſive for ever, the determination of civil
property, in this method of trial, would be very precarious and unſatis-
factory. It is abſolutely neceſſary to juſtice, that there ſhould upon many oc-
cafions be opportunities of reconſidering the cauſe by a new trial; and it is
done in a way very favorable to the parties for whom the wrong verdict is
given : it is upon payment of coſts; whereas in other caſes, where a wrong
judgement is reverſed, coſts are paid as if the right judgement had been
given in the firſt inſtance. It is not true, “ that no new trials were granted
before 1655," as has been ſaid from Style 466. In Slade's caſe, m. 24, C. F,
(which was in 1648) 'in King's Bench reported in Style 138, the court was
moved for judgement formerly ſtayed upon a certificate made by baron At-
kins, “ That the verdict paſſed againſt his opinion.” Bacon Juſtice ſaid,
judgements have been arreſted in the Common Pleas, upon ſuch certificates.
Hales of counſel with the defendant prayed, that the judgement, in that
caſe of Slade, might be arreſted, and that there might be a new trial ; for
that it had been done theretofore in like caſes; indeed that caſe, as there re-
ported; repreſents Rolle Juſtice, to hold “ that it ought not to be ſtayed,
though it have been done in the Common Pleas ; for that it was too arbitrary for
thein to do it.” And he adds, you may have your attaint againſt the
jury; and there is no other remedy in law for you: but it were good to ad-
viſe the party to ſuffer a new trial for better ſatisfaction.'
In the caſe of Wood verſus Gunſton, Michaelmas, 1755, Banc. Sup.
Style 466, (which was an action upon the caſe for ſpeaking ſcandalous words
of the plaintiff, and a verdict of the plaintiff with one thouſand five · hun-
dred pounds dainages), the defendant moved for a new trial; and Glyn
Chief Juſtice ſaid, is it was in the diſcretion of the court, in some caſes, to
grant
66
1
WILLIAM EARL OF MANSFIELD.
:
117
ſons for his adherence to, or departure from, the rules and prin-
ciples of equity in a court of law.
The
grant a new trial : but this muſt be a judicial, and not an arbitrary diſcretion.
And it is frequent, in our books, for the court to take notice of the miſcar-
riages of juries, and to grant new trials upon them. And it is for the people's
beneſt that it ſhould be ſo; for a jury may ſometimes, by indirect dealings,
be moved to fide with one party, and not to be indifferent betwixt them;
but it cannot be ſo intended of the court.” And in that caſe a new trial
was ordered, upon the defendant's paying full coſts, the judgement ſtanding
as a ſecurity to pay what might be recovered upon the next verdict. The
reaſon why this matter cannot be traced farther back is, that the old report-
books do not give any accounts of determinations made by the court upon
motions. Indeed, for a good while after this time, the granting of new
trials was holden to a degree of ſtrictneſs, fo intolerable, that it drove the
parties into a court of equity, to have in effect a new trial at law of a mere
legal queſtion, becauſe the verdict in juſtice, under all the circumſtances,
ought not to conclude : and many bills have been retained upon this ground;
and the queſtion tried over again at law under the direction of a court of
equity. And therefore of late years, the courts of law have gone more libe-
rally into the granting of new trials, according to the circumſtances of the
reſpective cales. And the rule laid down by lord Parker, in the caſe of the
queen againſt the corporation of Helſtan, H. 12 Anne, B. R. ſeems to be the
beſt general rule that can be laid down upon this ſubject : viz. “ doing juſtice
to the party,” or, in other words, “ attaining the juſtice of the caſe. .
The reaſons for granting a new trial muſt be collected from the whole
evidence, and from the nature of the caſe, conſidered under all its circum-
ſtances.
This power may be exerciſed at much leſs expence of time and money,
therefore more beneficially for the ſubject, by the common law where the caule
has been tried.
Of late years new trials have been granted, not only after trials at Niſi
Prius, but alſo after trials at bar. And it is at leaſt equally reaſonable to do it
after the trials at bar as after trials at Niſ Prius (if the juſtice of the caſe
demands it), or indeed rather more ſo, as the latter muſt be done upon
what could have actually and perſonally appeared to a ſingle judge only;
whereas the former is grounded upon what muſt have manifeſtly and fully
appeared to the whole court.
I come now to the preſent verdict; and ſhould be ſorry that the queſtion
depended upon my being ſatisfied or diffatified : and therefore I have ſtated
the whole.
If the matter in diſpute was of great value, I will not ſay, that all the ſuf-
picious circumſtances might not be a ground for a new trial, to give the plain-
tiff
:
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The increaſed liberality of courts of law in granting or rea
fuſing new trials, and the indubitable right veſted in thoſe
courts
tiff an opportunity of getting the inſtrument inſpected by perſons acquainted
with her hand : though I think, upon the evidence laid before the jury, the
verdict in that reſpect was right.
What I go upon is the apparent manifeſt fraud and impoſition in obtaining
the diſcharge from the teſtatrix, if ſhe really ſigned it.
Fraud or covin may, in judgement of the law, avoid every kind of act:
many inſtances are put in Fermor's caſe, 3 Co. 77.
so What circumſtances and facts amount to ſuch fraud or covin” is always
a queſtion of law. Courts of equity, and courts of law, have a concurrent
juriſdiction to ſuppreſs and relieve againſt fraud. But the interpoſition of
the former is often neceſſary for the better inveſtigating truth, and to give
more complete redreſs.
The writing upon the force of it ſpeaks impoſition. It imports being for
conſideration. She releaſes the principal in conſideration of five pounds per
cent, during her life ; which is only legal intereſt, and the preciſe rate he
was obliged to pay by his note. The defendant has ſet up another confi-
deration not expreſſed, which is not only not proved by him, but diſproved by
the evidence on both ſides.
He now contends, and his counſel have argued, “ that it was intended to
be revocable by her during her life, and therefore was only in the nature of
a legacy.” That power "to revoke" is omitted; the writing all of his own
hand, and kept in his own cuſtody; and, if it was in the nature of a legacy, it
is revoked by the ſubſequent will.
The teſtatrix never imagined ſhe had ſtripped herſelf of this money : In her
circumſtances it would have been madneſs. The defendant, during her life,
did not dare to ſay, even to his own wife, “ that the teſtatrix had given him
this money.
law ſays,
He did not dare to claim it immediately after her death ; but would have
compounded, by withdrawing his caveat, to have got his note delivered up.
No anſwer was attempted, by proof, to the apparent impoſition. Upon his
own caſe, ſtated by himſelf, and the evidence on both ſides, the tranſaction
to get her hand to this writing muſt have been fraudulent, and if it be ſo, the
6 he ſhall not avail himfelf of it."
The attention of the jury was artfully drawn to the heinous charge of for-
gery only; and I left the queſtion of fraud to them without any expreſs di-
rection, “ that the circumſtances ſpoke fraud apparent." The same jury
might, upon reconſideration, find a different verdict. I dare ſay, they
meant to do right.
But the merits of the caſe appearing to me in this light, I am clearly of
opinion, that there ought to be a new trial.
5
Theſe
I
;
WILLIAM EARL OF MANSFIELD.
119
courts to puniſh fraud or covin, are clearly exemplified by lord
Mansfield.
In Michaelmas Term, 1757, judgement was given by the
court of King's Bench in the caſe of Wyndham and Chet-
wynd *, a very important and intereſting cale reſpecting the
cre-
not.
Theſe are my ſentiments : my brothers will judge whether I am right or
The other judges who were preſent concurred. Mr. Juſtice Wilmot was
abſent in chancery.
The cauſe never came on to be tried again : it is therefore probable, that
the defendant acquieſced in the opinion of the court, and paid the money.
* Sir James Burrows, in his report of the caſe of Windham and Chet-
wynd upon a will of land, dated the 14th of May, 1750, and a codicil of
the ſame date made by Walter Chetwynd, late of Grendon, Eſq. deemed it
to be unneceſſary either to prefix the arguments of the counfel, or the autho-
rities upon which they relied, as lord Mansfield entered into the
caſe ſo very
minutely in delivering the opinion of the court upon it. Dr. Burn, in his
Eccleſiaſtical Law, p. 532, has given a ſhort ſummary of theſe arguments ;
and inaſınuch as Sir James Burrows has reported fully and faithfully in his
firſt volume, p. 417 to 430 incluſive, the opinion delivered' by the chief
juſtice on this very important caſe, the author of theſe ſheets will only en-
deavour to point out the nice diſtinction made by lord Mansfield, as well
between a perſon endeavouring to eſtabliſh any particular deviſe of lands, in
preſent, or in remainder, by his own teſtimony, as alfo. reſpecting a ſub-
ſcribing witneſs, claiming only as a legatee, or as a creditor, of the teſtator.
His lordſhip having laid down the rule, that a perſon ſhall not, in a court of
juſtice, intitle himſelf to a deviſe by virtue of his own ſubfcription, which,
at the time of ſubſcribing, he could not have proved by his examination,
and having previouſly obſerved that there was not a ſingle determination
which carried the incapacity farther than that rule, immediately ſubjoined:
“ This is the caſe of Hilliard and Jennings, this is the reſolution and judge-
ment of the court in the caſe of Anſty verſus Dowſing.” To proceed to the
confideration of the different circumſtances in the caſe before the court.
The witneſſes to the will and codicil of Mr. Chetwynd were in nature of
legatees, there being a charge upon the reſidue of his real and perſonal
eſtates for the payment of all his juſt debts, legacies, and incumbrances.
Now the fact was, that Meſſrs. Squire and Baxter, two of the ſubſcribing
witneſſes, were the teſtators attorneys, and as ſuch had ſome unſettled ac-
counts between them, but which before their examination in the cauſe were
ſo far ſettled, as that a balance was due from them to the executor of the
teſtator. The third was the teſtator's apothecary; and the jury found, that
+
at
120
THE LIFE OF
credibility of witneſſes to a will of land, which came before the
court on a ſpecial verdict, and had, previous to the judgement
of the court, been twice elaborately argued.
Lord Mansfield deemed it to be an important part of his duty
as a judge to diſentangle abſtruſe caſes, which came before him,
from the mazes and great intricacy which were frequently in-
troduced by the elaborate arguments of counſel. He ſeemed to
have a particular pleaſure in diſcriminating between ingenious,
at the time of atteſting the writings, and alſo at the time of the teſtator's death,
there was due and owing to the third witneſs the ſum of eighteen pounds,
five ſhillings, and five pence: but they alſo found, that the executor of the
teftator had paid the faid debt of eighteen pounds, five ſhillings, and five
pence, to the third witneſs, before his examination in the cauſe, and that he
had not, at the time of his examination, any demand upon the teſtator.
In this ſituation, lord Mansfield, in the third and laſt head of a very learned
and elaborate argument, wherein a perfect knowledge of the Roman law, as
well as of the laws of the land, is diſplayed and critically diſcuſſed, con-
cluded as follows: “ The preſumption of intereſt, at the time of ſub-
ſcription,” is taken off, at the death, by the principal funds being more than
ſufficient : it is taken off before the trial by the debts being paid; but the
benefit, at the time of ſubſcribing, was nothing. It does not appear the
principal funds then were deficient. The legacy is a bare poſſibilily upon a
contingency, which contingency never happened. But I will go farther. I
think a charge " to pay debts" ought not to incapacitate ſubſcribing witneſſes,
alibüügh they wanted and claimed the benefit of it. Every honeſt man
ſhould make that charge in his will; he who omits it is ſaid to fin in his
grave.
Fraud cannot be preſumed from inſerting a clauſe, which it would be ini-
quitous not to put in.
No man would reſort to wicked and fraudulent practices, to get his debt
charged upon land by the will of his debtor ; if he ſuſpected the debtor's
circumſtances, he would not ſtay till his death, or truſt to a revocable fecu-
rity. The preſumption of fraud in this caſe would be againſt juſtice and
truth ; and the public inconvenience ſo great that hardly a will could ſtand.
This charge ought to be in every will. The perſons attendant upon a dying
teſtator, and therefore moſt common witneſſes, are generally in ſome degree
creditors ; ſuch as ſervants, parfon, attorney, apothecary, &c. and the dif-
allowing ſuch perſons to be witneſſes cannot anſwer ends of public utility.
Upon the whole, we are all of opinion, that this will is duly atteſted by three
witneſſes.
clear,
WILLIAM EARL OF MANSFIELD.
121
-
clear, and convincing argument, and ſubtle metaphyſical dif-
tinctions, tending to bewilder and miſlead the Tyros or ſtudents
in the law. As to their making any impreſſion on the minds of
the judges, if the alluſion may be pardoned, we might as foon
expect to ſee the hawk, in its paſſage through the regions of air,
leave a print of his wild and circuitous flight behind him.
His ideas . went to the growing melioration of the law, by
making its liberality keep pace with the demands of juſtice,
and the actual concerns of the world * ; not reſtricting the infi-
nitely-diverſified occaſions of men, and the rules of natural jur.
tice,
* The caſe of Goodman and Goodright, in Michaelmas Term, 1759, on
error from the grand ſeſſions in Wales, was upon a judgement there given
for the plaintiff in an ejectment, brought by Richard Williams and Anna-
bella, his wife, for lands in Denbighſhire, in which the jury had, upon the
trial of it, there found a ſpecial verdict, which the juriſprudent will find
ſtated in the ſecond Burr. 847. This caſe having been reported by Sir James
Burrow, ſo as not to be relied on according to the obſervations, or rather
cenfure of the Court of B. R. in the caſe of Fonnereau and Fonnereau, 20th
George III. it may be proper to ſtate the conciſe manner in which lord
Mansfield cleared the caſe from the obfcurity of the ſeveral diffuſe argu-
ments, as they were termed by Sir James Burrow, although the reporter al-
lowed that ſeveral nice points were diſcuſſed in them, and that the reaſonings
of the counſel were ſupported by a great variety of caſes. In delivering the
reſolution of the court, his lordſhip took notice, that this caſe, when
ſtript of a great deal of learning, which may very well be laid out of it,
as not being at all eſſential to the determination of the preſent queſtion,
comes within a very narrow compaſs. The whole of the caſe comes ſingly
to this queſtion : “Whether. Mrs. Moſtyn, the teſtatrix, intended to give
her nephew Charles Lloyd, and the heirs of his body, the remainder or rever-
fion after the death of herſelf, and of Dr. Edward Wynn and Anne his wife,
and of the heirs of their two bodies, and alſo of the heirs
of Anne's body by any
ſecond huſband, or whether ſhe meant to give him an eſtate in poffeffion?"
The counſel for the defendant in error very judiciouſly laboured to prove
that Mrs. Moſtyn meant, in this deviſe “to him, and the heirs of his
body," to deviſe the eſtate to him immediately. This they found themſelves
obliged to infiſt upon, and to endeavour to maintain. But neither the
words, nor the nature of the proviſion Mrs. Moſtyn was making, will admit
of this conſtruction. For, the words do by no means import any thing like
R
it,
I
THE LIFE OF
tice, within artificial circumſcriptions, but conforming our jurif-
prudence to the growth of our commerce and of our empire. This
enlargement of commerce and of our empire, in the year 1744,
he appears almoſt to have foreſeen, and he lived to behold it.
" The arguments on the other ſide," ſaid that great light of the
law, (that is, arguments againſt admitting the teſtimony, in
queſtion, from the novelty of the caſe,) prove nothing. Does
it follow from thence, that no witneſſes can be examined in a caſe,
that never ſpecifically exiſted before ? or that an action cannot be
brought in a caſe that never happened before ? Reaſon (being
ſtated to be the firſt ground of all laws, by the author of the
book called Doctor and Student) muſt determine the caſe.
Therefore the only queſtion is, whether upon principles of reaſon,
juſtice, and convenience, this witneſs be admiſible ?
Cafes in law depend upon the occaſions which gave riſe to
them ; all occaſions do not ariſe at once : now a particular Spe-
cies of Indians appears; hereafter another ſpecies of Indians
inaya
ariſe. Aſtatute can ſeldom take in all caſes. Therefore the common
it, but quite the reverſe: and it can never be imagined to be her intention
to exclude all the iſſue of her favorite niece Anne Wynne, in order to prefer
Charles Lloyd and his iſſue : indeed, the direct contrary plainly appears. It
is a future deviſe, to take place after an indefinite failure of iſſue of the body
of a former deviſee, which far exceeds the allowed compaſs of a life or lives in
being, and 21 years after ; (which is the line now drawn, and very ſenſibly
and rightly drawn).
The articles can not be conſidered as executed: they are only a covenant,
" that ſhe will on the folemnization of the marriage at the requeſt of Ed-
ward Wynn and Anne, at or after ſuch time as Edward Wynn ſhould ſettle his
eſtate, &c. ſettle and convey hers.” The will does not profeſs to be an exe-
cution of them ; nor does it mention any truſtees to preſerve contingent re-
mainders agreeable to the articles.
But if the will was an execution of the articles, then Anne Wynn was tenant
in tail, and might fuffer the recovery. If ſhe took nothing under the will,
She is beir at law to Mrs. Moſtyn; and the leſſor of the plaintiff has no title.
Therefore this judgement muſt be reverſed.
3
law,
Car
WILLIAM EARL OF MANSFIELD.
123
law, that works itſelf pure by rules drawn from the fountain of
juſtice, is for this reaſon ſuperior to act of parliament.
From the period of this great judgement to the preſent time, the
law has gone on continually working itſelf pure (to uſe lord
Mansfield's expreſſion) by rules drawn from the fountain of
juſtice. “ General rules,” ſaid the ſame perſon, when he fat
upon the bench, are wiſely eſtabliſhed for obtaining juſtice with
eaſe, certainty, and diſpatch. But the great end of them being
to do juſtice, the court will fee, that it be really obtained.
On another occaſion, a propoſition being made for ſetting
aſide a verdict, he ſaid, “ this ſeems to be the true way to come
at juſtice, and what we therefore ought to do; for, the true text
is, boni judicis eft ampliare juſtitiam (non juriſdiétionen as has
been often cited). In conformity to this principle, the ſuppoſed
rules of evidence have, in late times and judgements, inſtead
of being drawn to a greater degree of ſtrictneſs, been greatly
relaxed.
“ All evidence is according to the ſubječt-matter to which it is ap-
plied. There is a great deal of difference between length of time
that operates as a bar to a claim, and that which is uſed only
by way of evidence. Length of time, uſed merely by way of
evidence, inay be left to the conſideration of the jury, to be
credited or not, or to draw their inferences one way or the
other, according to circumſtances. I do not know an inſtance in
which proof may not be ſupplied.” In all caſes of evidence lord
Mansfield's maxim was, to lean to admiſibility, leaving the ob.
jections which were made to competency to go to the credit
of the witneſs, and to be weighed in the minds of the jury
after they had heard it. In objections to wills, and to the teſti-
mony of witneſſes to them, he thought it clear that the judges
ought to lean againſt objections to the formality, and againſt
diſqualification of a witneſs, on account of a remote intereſt.
In fine, his doctrines, and his unwearied attention, (as will be
illuſtrated in their proper places,) tend forcibly and wiſely to
ſettle
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124
THE LIFE OF
ſettle the principles of departure from, or adherence to, the
rules of evidence.
Deſirous that the maritime law* Should be more perfe&ly
underſtood, that it ſhould not be conſidered as the law of any
particular
* The ſtate of the caſe of Luke and others againſt Lyde, being very con-
ciſe, is here tranſcribed.
The defendant ufo Lyde ſhipped a cargo of 1goi quintals of fiſh, at the
port of Saint John's in Newfoundland, on-board the ſhip Sarah belonging
to the plaintiffs, to be carried to Liſbon. The plaintiffs were to be paid
freight, at the rate of two ſhillings per quintal.
The original price of the faid cargo was, at Newfoundland, ten ſhillings
and fix pence, ſterling, per quintal.
The plaintiffs had alſo, on-board the ſaid Sarah, a cargo of 945 quintals
of fiſh, which was their own property,
The thip failed from the port of Saint John's on the 27th of November,
1756, and had proceeded ſeventeen days on her voyage ; and was taken on
the 14th of December following, within four days fail of Liſbon, by a
French ſhip. And the captain, the other officers, and all the crew (except
one man and a boy) were taken out of the Sarah, and put on-board the
French ſhip. The ſhip.Sarah was retaken on the 17th of the ſame Decem-
ber, 1756, by an Engliſh privateer ; and on the 29th of December, 1756,
brought into the port of Biddeford in Devonſhire.
The plaintiffs, having inſured the ſhip, and their part of the cargo,
abandoned the ſame to the inſurers. But the freight, which the owners were in-
titled to, was not inſured.
The defendant had his goods of the recaptors, and paid them five ſhillings
per quintal ſalvage, at the rate of ten ſhilling per quintal value.
The fiſh could not be ſold at all, at Biddeford, nor at any other port in
England, for more than ten ſhillings per quintal, clear of all charges and ex-
pences in bringing them to ſuch port. And the moſt beneficial market (in
the apprehenſion of every perſon), for diſpoſing of the ſaid cargo of fiſh,
at Bilboą in Spain; to which place the defendant sent it, in the
March following; and there was no delay in the defendant in ſending the
faid cargo thither. And it was ſold there for five ſhillings and fix perce per
quintal, clear of the freight thither, and of all expences attending the fale
there.
was
Second Burr, 883:
The
WILLIAM EARL OF MANSFIELD.
125
particular realm, but as the jus gentium uncircumſcribed, and
boundleſs as the ocean itſelf, a ſpecial caſe from the preceding
De-
j
The freight from Biddeford to Liſbon is higher than from Newfoundland
to Liſbon.
From the time of the capture, the whole way that the ſhip was after-
wards carried, was out of the courſe of her voyage to Liſbon.
The queſtion was, “ whether the plaintiffs are intitled to any and what
freight, and at what rate, and ſubject to what deduction."
Mr. Huſſey for the plaintiffs cited, as a foundation of his argument, the
caſe of Lutwidge and How verſus Grey et alios, heard on the 22d of Fe-
bruary, 1733, in the Houſe of Lords.
Lord Mansfield. The Houſe of Lords determined upon theſe reaſons,
(delivered by the lord chancellor Talbot) “ that the whole freight was due
upon the goods ſent to Briſtol; becauſe the maſter offered a ſhip to carry
the goods to Glaſgow, which was the port of delivery: but, as the maſter de-
clined carrying the other goods to Glaſgow (the port of their delivery), they
determined that, as to them, he ought to be paid only proratá ; viz. as much
as was proportionable to his carrying them to Youghall, the place where the
accident happened ;" and this was all agreeable to the maritime law.
Lord Mansfield ſaid, that, though he was of the fame opinion at the
affizes as he was now, yet he was deſirous to have a caſe made of it in order to
ſettle the point more deliberately, ſolemnly, and notoriouſly, as it was of
ſo extenſive a nature ; and eſpecially as the maritime law is not the law of a
particular country, but the general law of nations: “Non erit alia lex Rome,
alia Athenis, alia nunt, alia polibac, fed, et apud omnes gentes et onni tempore,
una eadenique lex outinibit."
He ſaid, he always leaned, (even where he had himſelf no doubt,) to
making caſes for the opinion of the court, not only for the greater ſatisfaction
of the parties in the particular cauſe, but to present other dilputes, by making
the rules of law, and the ground upon which they are eſtabliſhed, certain and
notorious ; but he took particular care that this ſhould not create delay or ex-
pence to the parties; and therefore he always dictated the caſe in court,
and faw it ſigned by counſel before another cauſe was called ; and always made
it a condition in the rule, “ that it ſhould be ſet down to be argued within
the firſt four days of the term.” Upon the ſame principle, the motion, “ to
put off the argument of this caſe to the next term," was refuſed ; and the
plaintiff will now have his judgement within a few days, as ſoon as he could
have entered it up if no caſe had been reſerved, at the expence of a ſingle
argument only; and fome rules of the maritime law, applicable to a variety
of caſes, will be better known. He ſaid, before he entered into it particu-
larly, he would lay down a few principles; which having done at ſome length,
his lordſhip proceeded : I find by the ancienieft laws in the world, (the
Rhodiar
و
126
THE LIFE OF
1
Devonſhire aſſizes, was reverſed by lord Mansfield at the ſummer
circuit, 1759.
Either as an embelliſhment to the preſent work, which, in its
nature, and in order to be uſeful, muſt in general be grave and
ſerious, or as a relaxation to the mind from the fatigue of con-
ſtant attention to one uniform ſyſtem of dry law, the author is
deſirous to introduce occaſionally a few well-authenticated anec-
dotes ; if an apology for ſuch relaxation ſhould be deemed ne-
ceſſary, it is to be hoped that the following argumentum ad homi-
nem will be acceptod as ſuch. A very able and praiſe-worthy
judge, the late Sir Jofeph Yates, was accuſtomed to declare, that
Rhodian laws,) that the maſter ſhall have a rateable proportion, where he is
in no fault. And Confolato del mere, a Spaniſh book, is alſo agreeable thereto.
Ever ſince the laws of Oleron, it has been ſettled thus : In the uſages and
cuſtoins of the ſea, (a French book,) with obſervations thereon, the fourth
article of the laws of Oleron is, “ that, if a yefſel be rendered unfit to pro-
ceed in her voyage, and the mariners ſave as much of her lading as poflìbly
they can ; if the merchants require their goods of the maſter, he may deliver
them, if he pleaſes, they paying the freight in proportion to the part of the
voyage that is performed, and the coſts of the ſalvage: but, if the maſter can
readily repair his ſhip, he may do it; or, if he pleaſes, he may freight another
Thip to perform his voyage.” Amongſt the obſervations thereon, the firſt is,
" that this law does not relate to a total and entire loſs, but only to ſalvage ;
or rather, not to the ſhipwreck, but to the diſabling of a ſhip, ſo that the
cannot proceed in her voyage without refitting: in which caſe the merchants
may have their goods again, paying the freight in proportion to the way the
ſhip made."
And the caſe in the Houſe of Lords between Lutwidge and How verfus
Gray et alios, is alſo in point, and was well conſidered there ; and lord Tal-
bot gave the reaſons of the judgement of the houſe at length.
Therefore, in the preſent cafe, a rateable proportion of freight ought to be
paid for balf the goods.
The verdict muſt be for 60l. 145. which upon computation amounts to the
rateable proportion of the freight, being it of 751. the half of 1501.
Conſequently the verdict which was for yol. muſt be ſet right, and made
60l. 14s.
See alſo a very learned and elaborate opinion of lord Mansfield, on the
nice diſtinctions between a total and an average loſs in the ſpecial caſe of
Hamilton and Mendes, Second Burr. 1208.
whenever
WILLIAM EARL OF MANSFIELD.
ízy
.
.:
mour.
whenever intenſe application to any legal ſtudies became bur-
thenſome or unpleaſant, he changed the ſcene, read a few pages
of Dean Swift's Works, which not only relieved him while he
read, but alſo fent him back to his dry law in perfect good hu-
In imitation of a character ſo diſtinguiſhed and fo pure,
and without any deſign to depreciate the pre-eminence, I had al-
moſt ſaid the fovereignty of the Dean of Saint Patrick, in the
regions of wit and fancy, the following anecdotes are attempted
to be placed in their true light of manifeſting, that a' grave judge
may with impunity now and then introduce the golden rule of
Horace, Dulce eſt defipere in loco.
An anecdote having appeared in the ſummer, 1760, in feveral
public prints, purporting, that, early in lord Mansfield's chief
juſticeſhip, a certain diligent book-read advocate had taken
up
a conſiderable portion of the time of the court, in producing
ſeveral black-letter caſes, to prove the genuine conſtruction of an
old woman's will:
His lordſhip heard him with great patience for ſome time; at
laſt he interrupted and quite broke the ſtring of his learning,
by aſking him, “ whether he thought the old woman had ever
heard of theſe cafes ? and, if not, what common ſenſe and juſtice
muſt ſay to that matter ?” He therefore immediately gave judge-
ment in favor of common ſenſe againſt the black-letter-law, to
the full fatisfaction of the whole court.
The curious reader may be deſirous of aſking, whether the
caſe of the old woman's will, or any ſimilar caſe, which gave
birth to the paragraph of the triumph of common fenſe, has
been faithfully reported. The anſwer, reſpecting a ſimilar caſe,
is in the affirmative. For inſtance, the priſoners in the King's
Bench priſon were, in Trinity term 1760, adviſed, or were of
themſelves deſirous, to try whether the chief juſtice would not
be inclined to determine in their favor, by giving them the be-
nefit of a legacy, in preference to the priſoners in the Mar-
fhalſea-priſon. The caſe was ſimply this : Frederick Aſhfield,
of
128
THE LIFE OF
of Richmond in Surrey, gentleman, devifed his copyhold eſtate
(already ſurrendered to the uſe of his will), and alſo all his
per-
fonal eſtate (after &c.), to truſtees to be fold; and directed the
produce to be laid out in freehold lands. Then he farther di.
reets, that his truſtees ſhall for ever iſſue, pay, and diſpoſe of,
the rents and profits unto and amongſt ſuch perſons as for
the time being ſhall be poor priſoners and infolvent debtors in
the Marſhalſea-priſon in the borough of Southwark in the county of
Surrey, and real-and fit objects of charity, for and towards their
ſubſiſtence, during their reſpective impriſonments there, in ſuch
manner, and in ſuch parts and proportions, as his faid truſtees,
and the ſurvivors of them, and their heirs, ſhould, from time to
time, order, direct, and appoint.
Mr. Gould, the learned counſel for the priſoners in the priſon
of the Court of King's Bench, argued, that this deviſe belonged
to his poor clients.
The deviſe is “ to the priſoners in the Marſhalſea priſon in the
borough of Southwark,” which muſt mean the priſon of this court.
In ſupport whereof he cited Co. 10. Rep. 69, 71, 72. The
caſe of the Marſhalſea ; and Spelman's. Gloſary, title Marſhall.
And he obſerved, that the defendant, who is a priſoner in the
King's. Bench priſon, is, and is always ſuppoſed (in the decla-
ration againſt him) to be in Cuſtod Mareſchalli Marechalſia Do-
mini regis. The other, (the defendant in the Palace-Court) in
Cuſtod' Mareſchalli Mareſchalſiæ Hofpitii Domini Regis. He alſo
cited firſt Bulſtr. 207 to 212, Cox verſus Gray, at large : and ar-
gued, that therefore, propter excellentiam, this deviſe is to the
priſoners of the priſon of this court. The counſel on the other
ſide argued, and ſufficiently ſhewed, that this deviſe muſt be un-
derſtood to be to the priſoners in the priſon of the Marſhal of the
Houſehold.
Lord Mansfield was clearly of that opinion. He obſerved, that
not only in vulgar ſpeech, but likewiſe in many acts of parlia-
ment, the priſon of this court is called the King's Bench priſon,
and
WILLIAM EARL OF MANSFIELD.
| 29
and the other is called the Marſhalſea, priſon. Both of them, in-
deed, are in the borough of Southwark, but each of them has
its reſpective appellation. And this teftator uſed the name that
was always uſed by every body elſe in Common Parlance; without
ſearching Spelman's Gloſſary, or my lord Coke's Reports, or Bul-
ftrode's Reports, to find the ſtri£t and legal name. This is a ſuffi-
cient reaſon for us not to make any order at all in the preſent caſe.
Note. This reſpective appellation of each of theſe priſons
was agreed by the marſhal of this court (on appeal to his own
candor by lord Mansfield) to be the name uſed in Common Par-
lance.
So, on a motion for a new trial grounded on very nice con-
ſtructions of the Mutiny-acts, the rule was diſcharged ; lord
Mansfield obſerving, that all theſe niceties were never thought of
by thoſe perſons who have for many years drawn the Mutiny-
acts : they are not drawn by gentlemen of the profeſſion of the
law; and the nature of the thing, as well as the intention of the
legiſlature, requires that people ſhould not be liable to actions
for honeſtly executing them.
In private life, it may truly be faid, that lord Mansfield had the
facility and happy art of embelliſhing the moſt trivial circum-
ftances with elegance, of enlivening converſation with eaſe and
pleaſantry, and of ſupporting every narration with ſtrict atten-
tion to truth.
In his convivial converſation, he was particularly excellent.
His general and almoſt univerſal knowledge of men and things
preſented a conſtant and copious ſupply of familiar dialogue and
diſcourſe. His fallies of pleaſantry were innocent, and wounded
no man; his ſentences of obſervation were judicious and folid.
His particular friends could eaſily illuſtrate this part of his cha-
racter by a thouſand familiar inſtances; the few. which the au-
thor begs leave to ſelect occaſionally, as they ſerve to illuſtrate
his character for eaſe and pleaſantry, were impromptuºs, delivered
S
on
THE LIFE OF
1
130
on the ſpur of the occaſion, and ſome of them are well known to
his ſurviving friends.
One of the right reverend bench having very charitably eſta-
bliſhed an alms-houſe, at his own expence, for 25 poor women;
Mr. Murray, in his juvenile days, was applied to for an inſcrip-
tion to be placed over the portal of the houſe ; upon which he
took up his pencil, and immediately wrote the following:
“ Under this roof
the Lord Biſhop of
keeps
no leſs than 25 women."
This witticiſin probably had its riſe from a then recent fact,
which reflected great honor on the late Sir Walter Blackett, ba-
ronet, who was at that time the faſt friend of, and much attached
to, Mr. Murray, and alſo to Mr. Booth the conveyancer. Sir Wal-
ter ſtated his caſe to them in Lincoln's Inn, and pointed out the
dilemma into which a friend in the North (Mr. Daviſon) had
drawn him, by leaving 1500l. to be laid out, under the direction
of Sir Walter, in building a ſuite of alms-houſes for twelve
old women, near Newcaſtle upon Tyne. Sir Walter added,
how uncomfortable theſe poor creatures will be placed in a row,
without any human being to look upon. What think you, my
friends and counſellors, if I run up another wing for 12 old
batchelors ? The learned counſel agreed in opinion, that the
charitable inſtitution would thereby be freed from partiality, and
be abundantly more comfortable and more complete.
The ſuperſtructures were ſoon raiſed, according to Mr. Syl-
vanus Urban’s Report of the remarkable events in the year 1753 ;
and according to common fame, in a year or two afterwards, ſe-
veral of the antient maidens and old batchelors looked with
great complacency on each other, ſo as to occaſion a few mar-
riages to take place, and to make convenient room for other
ininates and inhabitants under theſe hoſpitable habitations.
The
WILLIAM EARL OF MANSFIELD.
131
The grateful attachment of Mr. Murray to thoſe friends who
had been kind to him in his juvenile days was exemplified in
many inſtances, and particularly by his continuing, even when
in a dignified ſituation, and in full career of buſineſs, to viſit the
firſt lord Foley in the country on a Saturday, and to remain
with him till the Monday morning following, when buſineſs
called him back to town. On a brother barriſter's interrogating
him, how he could ſpend his time where ſo little pleaſantry or
livelineſs prevailed? “ It is enough, ſaid he, if I contribute, by
my viſits, to the entertainment of my faſt friends ; or, if I fail in
that, I am ſure to contribute, by laſſitude, to the repoſe of my
own faculties." The friendly attention of Mr. Foley to Mr. Mur-
ray was unqueſtionably of an important nature. For the authen-
ticity of a report, reſpecting the preciſe nature of this early friend
ſhip, the author will not pretend to vouch; yet, when it is conſi-
dered, that, at many diſtant periods of time, rumor has, with
little variation, been brought home to the author, and from ſuch
reſpectable authority as ſtrongly to induce the belief of Mr. Foley's
having encouraged his young friend to take the line of the law
preferably to the clerical line, which his ſlender fortune, as one
of the numerous younger children of a noble family, firſt led him
to think ſeriouſly of—is it now to be wondered at that fine links,
like theſe, ſhould form an indiſſoluble chain of friendſhip between
the firſt lord Foley and the honorable Mr. Murray?
1760.
To reſume the conſideration of a few more legal diſquiſitions.
In Michaelmas term 1760, a caſe * was ingeniouſly and judi-
ciouſly
* This was the caſe of Doe, on the demiſe of Long, againſt Laming.
The ſtate of the caſe and the arguments of the counſel are too long to be
S 2
tranſ-
1
132
THE LIFE OF
1
1
ciouſly argued in the court of King's Bench, without going into
a long and elaborate review of caſes to ſettle a point of real con-
ſequence,
tranſcribed here : the juriſprudent will find them in 2 Burr. 1100 to 1106.
But the leading features of the caſe, as deſcribed by lord Mansfield and the
other judges, are ſo ſtrikingly delineated as to merit the attention of the cu-
rious reader.
Lord Mansfield.-The words are, to my niece A. C. and to the heirs of
her body lawfully begotten or to be begotten, as well females as males, and
to their heirs and aſigns for ever, to be divided equally, ſhare and ſhare
alike, as tenants in common, and not as joint tenants. The queſtion is,
“ Whether it be contrary to the rules of law to underſtand in this caſe heirs
of the body of A. C. as a deſcription of children?" for, that ſuch was the ina
tention of the teftator there can be little doubt.
It is to be lamented that queſtions of this kind have occaſioned fo much
litigation and expence. The beſt way to ſettle them is to reduce the matter,
if poſſible, to ſome certain rules.
It is clear, that where an eſtate is given to the anceſtor ". and his heirs,
either general or ſpecial, the term denotes the quantity of the eſtate which the
anceſtor takes, viz. either fee fimple or fee tail. It is clear too, that a. per..
fon, to take as a purchaſer, muſt be deſcribed from every courſe of deſcent
as heir at law, heir in borough-engliſh, heir or heirs male of the body.
By an antient maxim of law, although the eſtate be limited to the
anceſtor expreſſly “ for life," and after his death to kis heirs general or ſpe-
cial, the heir ſhall take by defcent, and the fee ſhall veft in the anceſtor.
This maxim was originally introduced in fáror of the lord, to prevent his
being deprived of the fruits of the tenure, and likewiſe for the ſake of. Spe-
cialty creditors.
The anceſtor, had the limitation been conſtrued a contingent remainder,
might have deſtroyed it for his own benefit. “ If he did not deſtroy it, the
lord would have loſt the fruits of his tenure, and the ſpecialty-creditors their
debts; therefore the law ſaid, “ Be the intention as it may, where an eſtate
is given to the anceſtor and his heirs, the fee ſhall veſt in him."
The reaſon of this maxim has long ceaſed, becauſe tenures are now aboliſhed,
and contingent remainders may be preſerved from being defeated"Before they
come in eſe.; yet, having become a rule of property, it is adhered to in all caſes
literally within it, although the reaſon has ceaſed; but where there are cir-
cumſtances which take the caſe out of the letter of this rule it is departed from
in favor of intention, becauſe the reaſon-ofthe-rule has ceafed.
His lordſhip then proceeded to the confideration of ſeveral caſes which
had been cited by the counſel, and, having pointed out the lines which
diftinguifhed them from the preſent caſe, added, “It appears, therefore,
4
from
WILLIAM EARL OF MANSFIELD,
133
:
fequence, viz. Whether, under particular circumſtances, and in
aid of the intention of the teſtator, words of limitation in a will
may not be conſidered as words of purchaſe.
1762.
from all that I have been ſaying, that there is no ſuch fixed unvariable rule
as has been ſuppoſed;" that words of limitation ſhall “ never, in any caſe,
be conſtrued as words of purchaſe.'
And the preſent caſe is the ſtrongeſt that I can form any imagination of,
to juſtify a conſtruction, “ That the heirs of the body of Ann Corniſh ball
.
here take as purchaſers.” The daviſe cannot take effect at all, but muſt be
abſolutely vid, unleſs the heirs of her body take as purchaſers.
Mr. Juſtice Deniſon concurred with his lordſhip in opinion, “ That
courts of law, as well as courts of equity, will always conſtrue wills agreeably
to the intention of the teftator, if ſuch intention be nit contrary to, and in-
conſiſtent with, the rules of law.;" and he. Thewed, that the intention of the
teſtator, in the preſent cafe, muſt have been, “ that the heirs of the body
of his niece, Anne Corniſh, fhould take as purchaſers.”
Mr. Juſtice Wilmot premiſed, that the court were obliged to the gentle-
men who had argued this caſe at the bar, for declining to go into that long
ſtring of cafes ſeverally cited upon this ſubject; for, the principle that muſt
govern all caſes of this kind is the intention of the teſtator, provided it be
not inconſiſtent with the rules of law.
And all caſes which depend upon the intention of the teſtator (which is
the pole-ftar for the direction of deviſes) are beſt determined upon comparing
all the parts of the deviſe itſelf, without looking into a multitude of other
caſes; for each ſtands pretty much upon its own circumſtances, and one is no
rule for another, or very feldom at leaſt.
Here the teſtator intended, beyond all doubt, that the children of his ne-
phews and nieces, ſhould take the inheritance in fee ſimple, both males and fe-
males, per capita, as tenants in common, and this is a legal intention.
But this intention cannot take effect by giving an eſtate in tail, or in fee,
to the firſt taker: for the intention of the teſtator muſt be ſubfervient to the
law, and not the law to the intention of the teſtator.
Now a teftator, be his intention what it will, cannot make an eſtate de-
fcend to males and females all together, nor gavelkind lands to deſcend to
them as tenants in common.
The teſtator's intention cannot, therefore, take place, by giving Anne. Cor.
niſh an eſtate tail.
What then is to be done? Why, as my lord Coke ſays, you are to
mould the barbarous words and expreſſions of the teſtator ſo as to effectuate his
intention, if you can do ſo without going contrary to the rules of law; but
you cannot do this contrary to the rules of law.
The
134.
THE LIFE OF
1762.
Bribery at elections is puni hable at common law as well as by
the ſtatute.
In Trinity term 1762, the diſcuſſion of this very important
queſtion took place. This was the caſe of the King againſt Pitt,
and the King againſt Mead. The defendants having been con-
victed of bribery at an elestion for members of parliament, upon an
information granted by the court as at common law, the court
had a doubt about the ſentence they ſhould pronounce upon them.
On the 25th of June, 1762, three very eminent counſel elabo-
rately argued, that the court of King's Bench-had no juriſdiction
at common law to puniſh in the preſent inſtance. They were
anſwered by an equal number for the proſecutor-prout 3
Burr.
1335. Lord Mansfield, in delivering the reſolution of the court,
premiſed,
" that
The queſtion therefore in the preſent caſe comes to this: Whether it be
abſolutely neceſary that the words beirs, or heirs male, or heirs of the body, muſt
be, in all caſes, and under all circumſtances, words of limitation ?
Now it is certain, that in ſome caſes, and under ſome circumſtances, they
may be conſtrued words of purchaſe, either upon a will or upon a deed,
Mr. Juſtice Wilmot then cited two determinations upon a deed in ſupport
of his opinion, and proceeded, They are not to be conſtrued as words of li-
mitation, either upon a will or upon a deed, when the manifeſt intention of the
teſtator, or of the parties, is declared to be, or clearly appears to be,
they ſhall not be ſo conſtrued.”
Now it is plain, in the preſent caſe, that the teſtator did not mean to uſe
the words, “ heirs of the body," as words of limitation ; it is as clear as if
he had expreſſly ſaid, " I do not intend theſe words in that ſenſe.”
And as to Anne Corniſh's taking an equal ſhare in fee ſimple in common
with her daughters, that conſtruction can never hold; for, it is moſt certain,
that the teſtator did not intend the diviſion into equal ſhares to be made, till
after Anne Corniſh's death.
By the court unanimouſly.
Judgement for the defendant,
66 That
.
+
-
WILLIAM EARL OF MANSFIELD.
135
1
99:
6. That wherever a practice, which is wrong or unreaſonable,
has happened to have been introduced for want of a ſufficient
advertence to the conſequence of it, the beſt way is to ſet it
right immediately, as ſoon as the inconvenience is obſerved, if
former caſes be not affected by the retroſpect. Bribery. ať elections
for members of parliament muſt undoubtedly, he ſaid, have always
been a crime at common law, and conſequently puniſhable by indiet-
ment or information ; but the act of 2 George II. c. 24, has intro-
duced a very ſevere penalty, in order to enforce the laws then
already in being, and becauſe they had not been ſufficient to pre-
vent the evil. The crime certainly ſtill remains a crime at com-
mon law. The legiſlature never meant to take away
the common-
law crime, but to add a penal action. This appears by the words,
or being any otherwiſe lawfully convicted thereof ;” and we
are all of us clear, “ that it ſtill remains a crime at comnion law."
And the preſent conviction, upon an information granted by the
court, is juſt the ſame as if the defendants had been convicted
upon an indi Eiment.
The court now conſiders theſe two defendants as remaining ſtill
liable to the forfeiture and diſabilities directed by the act of 2
George II. as the time limited for commencing proſecutions upon
it is not yet expired; and therefore, in adjuſting the puniſhment
which ought at preſent to be inflicted upon them, they do not
conſider it as a puniſhment adequate to their offence, but as an
additional puniſhment over and above the punishments inflicted by
the act of parliament; to which ſtatute-puniſhments they fiill:
remain liable:
Therefore, ſince both of them have already ſuffered impriſonment
for ſome time, they only order that Pitt be impriſoned for fix
months longer, and Mead for three months longer."
UT
17637
136
THE LIFE OF
1
1763.
The author now begs permiſſion to proceed to a ſummary diſa
cuſſion of the doctrine of General Warrants, which, in the year
1763, was introduced into Weſtminſter Hall, with due ſolemnity,
by the conſtitutional lawyers of that period, to the great increaſe
of their reputation and fair fame.
The doctrine of General Warrants was, antecedent to the year
1763, acquieſced in by many, taken upon truſt by others, but
known to very few. The language of the warrant iſſued by
lord Halifax will ſufficiently ſhew the nature and tendency of it,
and the general purpoſe for which it was iſſued *.
Under this authority, three of the meſſengers took in cuſtody
Mr. Drýden Leach, the ſuppofed printer of the North Briton,
No. 45, but who, in reality, was neither the author, the printer,
* “ George Montagu Dunk, earl of Halifax, viſcount Sunbury, and ba-
ron Halifax, one of the lords of his majeſty's moſt honorable privy council,
lieutenant-general of his majeſty's forces, and principal ſecretary of ſtate,
&c. Theſe are, in his majeſty's name, to authorize and require you, taking
a conſtable to your aſſiſtance, to make ſtrict and diligent ſearch for the au-
thors, printers, and publiſhers, of a feditious and treaſonable paper, intituled,
" The North Briton,” No. 45. Saturday, April 23, 1763, printed for G.
Kearſley, in Ludgate-Street, London, and them or any of them having found,
to apprehend and ſeize, together with their papers, and to bring in ſafe cuſtody
before me, to be examined concerning the premiſes, and farther dealt with
according to law. In the due execution whereof, all mayors, Theriffs, juſ-
tices of the peace, conſtables, and all other his majeſty's officers, civil and
military, and loving ſubjects whom it may concern, are to be aiding and
aſſiſting to you, as there ſhall be occaſion. And, for your ſo doing, this
fhall be your warrant. Given at Saint James's the 26th day of April, 1763,
in the third year of his majeſty's reign.
66 DUNK HALIFAX,
:.
“To Nathan Carrington, John Money, James.. Watſon, and Robert
Blackmore, four of his majeſty's meſſengers in ordinary.”
nor
i
WILLIAM EARL OF MANSFIELD.
137
:
nor the publiſher of that number. Mr. Leach brought his action
of treſpaſs in the court of Common Pleas againſt three king's
meſſengers, for breaking and entering his houſe, and impriſoning
him, without
any lawful or probable cauſe, and laid his damages
at two thouſand pounds.
Lord chief juſtice Pratt tried the cauſe at Guildhall on the roth
of December, 1763; and the jury found a verdict for Mr. Leach,
the plaintiff, and gave him four hundred pounds damages, beſides
his coſts and charges. At the trial a bill of exceptions was ten-
dered and received *
The
1
* Sir James Burrow up gives the following curious and punctilious account
of this bill of exceptions in error.
Soon after the court ſat the lord chief juſtice Pratt came perſonally into
courtto confeſs (ore tenus) his ſeal put to a bill of exceptions in this caſe, purſuant
to the requiſition of the following writ, viz. “ George the Third, &c. To
our truſty and well-beloved Charles Pratt, Knight, our chief juſtice of the
Bench, greeting. Whereas we have lately been informed, that in the record
and proceſs, and alſo in giving of judgement in a plaint, which was in our
court before you and your aſſociates, our juſtices of the ſaid bench, by our
writ, between Dryden Leach, and John Money, James Watſon, and Robert
Blackmore, in a plea of treſpaſs, aſſault, and impriſonment, manifeſt error
hath intervened, to the great damage of the ſaid John, James, and Robert,
which ſaid record and proceſs, for the error aforeſaid, we have cauſed to be
brought into our court before us. And now, on the behalf of the faid
John, James, and Robert, we are informed in our ſaid court before us, that
at the trial of the iſſue firſt joined between the ſaid parties in the plea afore-
ſaid, the counſel learned in the law of the ſaid John, James, and Robert,
alledged on their behalf certain exceptions to the opinion then declared and
given by you; and that the ſaid exceptions were then and there written in a
certain bill, to which you put your ſeal, at the requeſt of the ſaid John,
James, and Robert according to the form of the ſtatute in ſuch caſe made
and provided ; and the faid John, James, and Robert, have brought into
our court before us the ſaid bill, with your ſeal put to the fame, as it is
ſaid ; whereupon the ſaid John, James, and Robert, have befought us to do
+ 3 Burr. 1692.
T
what
138
THE LIFE OF
The buſineſs did not remain long in this ſituation. In Mi-
chaelmas term in the ſame year the errors aſſigned came on to be .
argued ; and the juriſprudent who will attentively peruſe the ela-
borate, well-digeſted, and very learned arguments of Mr. Solici .
tor-general De Grey, on the one hand, and Mr. Dunning on the
other, will not only find, in 3 Burr. 1742, and in the twenty-
five following pages, all the acumen and ingenuity of the bar on
;
what farther ſhould ſeem meet to be done in this behalf, according to the
form of the ſaid ſtatute; and foraſmuch as by the ſaid ſtatute it is ordained,
that, in ſuch caſe, the juſtice, whoſe feal ſhould be put to ſuch exception,
be commanded to appear before us at a certain day, to confeſs or deny his ſeal
therefore we command you, that you perſonally appear before us on the
morrow of the Aſcenſion of our Lord, wherefoever we ſhall then be in
England, to confeſs or deny the ſeal ſo put to the ſaid bill of exceptions as afore-
faid to be your ſeal, according to the form and effect of the ſaid ſtatute, and
that you bring with you at the ſame time this writ. Witneſs, William lord
Mansfield at Weſtminſter, the 24th day of April, in the fifth year of our
reign.”
N. B. The bill of exceptions ſealed by lord chief juſtice Pratt had been
previouſly brought into this court, and was now in the hands of Mr. Owen, as.
ſecondary of the office of pleas; and all the proceedings down to, and in-
cluding, the abovementioned writ, were entred upon the rolls of this court.
The lord chief juſtice Pratt
, being now come into this court, purſuant to
the command contained in the ſaid writ, delivered it to the lord chief juſtice
of this court, Mr. Owen at the ſame time delivering the original bill of excep-
tions into lord Mansfield's hand; whereupon lord Mansfield, ſhewing to lord
chief juſtice Pratt the ſeal thereto affixed, aſked him, “Whether that was
his lordſhip’s ſeal or not ?" To which queſtion his lordſhip anſwered in the
affirmative. Lord Mansfield redelivered the bill of exceptions to Mr. Owen,
at the ſame time delivering to him the abovementioned writ, with orders
" that it ſhould be filed.”
Note. There was no written return to this writ, but Mr. Owen propoſed to
indorſe upon it, “ Sir Charles Pratt, knight, the chief juſtice within named
perſonally appeared in the court of the lord the king, before the king him-
ſelf, &c. on the day of the return within written, and confeſſed, that the
ſeal put to the bill of exceptions within mentioned is his ſeal.”
The lord chief juſtice of the Common Pleas immediately retired, without
fitting down, and the lord chief juſtice of this court attended him till he was
got paſt the puiſné judge, but not quite to the door of the court.
this.
WILLIAM EARL OF MANSFIELD.
139
1
.
this intereſting occaſion, but will alſo be prepared to receive the
concurrent opinion of the three puiſne judges at the cloſe of the
firſt argumet.
Lord Mansfield was deſirous of having a buſineſs of ſo great
importance to the liberty of the ſubject probed to the bottom.
He ſuppoſed it was intended to be argued again ; and in order,
as it were, to throw new light upon an ulterius concilium, his
lordſhip obſerved “ that a Bill of Exceptions ſuppoſes the evi-
dence true, and queſtions the competency or propriety of it."
" Whether there was a probable cauſe or ground of ſuſpicion,'
was a matter for the jury to determine ; that is not now before
the court'; ſo, “whether the defendants detained the plaintiff an
unreaſonable time.”
" But if it had been found to have been a reaſonable time, yet
it would be no juſtification to the defendants, becauſe it is ſtated,
that this man was neither“ author, printer, nor publiſher;"
and if he was not, then they have taken up a man who was not
the ſubject of the warrant.
“The three material queſtions are, firſt,“ whether a ſecretary of
ftate, acting as a conſervator of the peace by the common law, is
to be conſtrued within the ſtatutes of James I. and of the late
king.”
• The protection of the officers, if they have acted in obedience
to the warrant, is conſequential, in caſe a ſecretary of ſtate is within
theſe ſtatutes.
“As to the arreſt being made in obedience to the warrant, or only
under colour of it, and without authority from it, this queſtion
depends upon the conſtruction of the warrant, whether it muſt not
be conſtrued to mean “ ſuch perſons as are under a violent ſuſpi-
tion of being guilty of the charge,” for they cannot be concluſively
conſidered as guilty till after trial and conviction. The warrant
itſelf imports only ſuſpicion ; for it ſays, “ to be brought before
me, and examined and dealt with according to law;" and this
ſuf-
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ſuſpicion muſt eventually depend upon future trial; therefore the
warrant does not ſeem to me to mean concluſive guilt, but only
violent ſuſpicion. If the perſon apprehended ſhould be tried and
acquitted, it would thew “ that he was not guilty ;" yet there
might be ſufficient cauſe of ſuſpicion.
“Mr. Dunning fays very rightly, that “ to bring a perſon within
24 George II. the act muſt be done in obedience to the warrant.”
- The laſt point is, whether this general warrant be good : one
part of it may be laid out of the caſe ; for as to what relates to
the ſeizing his papers, that part of it was never executed; and there-
fore it is out of the caſe.
" It is not material to determine “whether the warrant be good
or bad,” except in the event of the caſe, being within 7 James I.
but not within 24 George II.
“ At preſent, as to the validity of the warrant, upon the ſingle
objection of the incertainty of the perſon, being neither named nor
deſcribed. The common law, in many caſes, gives authority to
arreſt without warrant, more eſpecially, where taken in the very
act; and there are many caſes where particular acts of parliament
have given authority to apprehend under general warrants, as in
the caſe of writs of aſſiſtance, or warrants to take up looſe, idle,
and diſorderly people ; but here it is not contended, that the
common law
gave the officer authority to apprehend, nor that
there is any act of parliament which warrants this caſe. Theres
fore it muſt ſtand upon principles of common law.
“It is not fit that the receiving or judging of the information
ſhould be left to the diſcretion of the officer. The magiſtrate ought
to judge, and ſhould give certain directions to the officer. This
is ſo, upon reaſon and convenience. Then as to authorities.
Hale and all others hold ſuch an uncertain warrant void; and
there is no caſe or book to the contrary. It is ſaid, "that the
uſage has been ſo, and that many ſuch have been iſſued ſince the
Revan
4
1
WILLIAM EARL OF MANSFIELD
141
Revolution down to this time;" but a uſage, to grow into a law,
ought to be a general uſage communiter ufitata & approbata, and
which, after a long continuance, it would be miſchievous to
overturn. This is only the uſage of a particular office, and con-
trary to the uſage of all 0:her juſtices and conſervators of the peace.
There is the leſs reaſon for regarding the uſage, becauſe the form
of the warrant probably took its riſe from a poſitive ſtatute, and
the former precedents were inadvertently followed after that law
was expired.”
The caſe ſtanding in the paper on Friday, 8th November,
1765, for farther argument ;
Mr Yorke was now to have argued on behalf of the plaintiffs
in error, and began to enter into his argument; but when he
came to mention the two caſes cited by Mr. Dunning, both of
which were determined before lord Mansfield, upon the 24th of
George II. C. 44. one of them at Norwich, ſummer allizes, 1761,
where damages were given, the other of them on a warrant
under the vagrant act of 17 George II. where his lordſhip held
" that the defendant ought to ſhew, that the officer had acted in
obedience to the warrant," and he did ſo: he ſeemed to intimate,
that this objection “s of their not having done ſo in the preſent
caſe,” was too great a difficulty for him to encounter; and
therefore reſted the matter where it was, without proceeding any
farther in his argument.
Lord Mansfield remembered both theſe caſes ; and ſaid,
16 he
ſtill continued of the ſame opinion.”
“ Where the juſtice cannot be liable, the officer is not within the
protection of the act. The caſe in Middleſex concludes exactly
to the preſent caſe; for here the warrant is to take up the author,
printer, or publiſher ; but they took up a perſon that was neither
author, printer, nor publiſher; fo that caſe was a warrant “ to take
up a diſorderly woman,” and the defendant took up a woman
who was not ſo; and he held the ſame opinion now, he ſaid, as
he
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he did before in the caſe at Norwich. This makes an end of the
caſe; for this is a previous queſtion, and the foundation of the de-
fence fails. The conſequence is, that the judgement muſt be
affirmed."
The other judges aſſenting, it was affirmed accordingly. Thus
general warrants ſunk into deſuetude for the nobleſt of all pur-
poſes, the permanent ſecurity of the liberty of the ſubject.
66 that,
1765.
In 1765, Doctor Warburton, then biſhop of Glouceſter, re-
publiſhed his Divine Legation of Moſes. The repeated acts of
friendſhip and patronage which lord Mansfield manifeſted with
great alacrity, and conferred with peculiar grace on learned
men, naturally and gratefully prompted the learned prelate to
dedicate this republication to his patron and friend, with great
ability, and with a degree of animation worthy of Warburton.
In his addreſs, he pointed out the riſe and progreſs of the ſpirit
of irreligion and licentiouſnefs which then prevailed. In the
courſe of this narrative, which deſerves at this time to be read,
he mentions, as a peculiarly fortunate circumſtance,
while every other part of the community ſeems to lie in fæce Ro-
MULI, the adminiſtration of public juſtice in ENGLAND runs as
pure as where neareſt to its celeſtial ſource, purer than PLATO
dared venture to conceive it even in his feigned Republic.” He
proceeds, “ Now whether we are not to call this the interpoſing
hand of Providence.; for I am ſure all Hiſtory doth not afford
another inſtance of ſo much purity and integrity in one part co-
exiſting with ſo much decay, and ſo many infirmities in the reſt,
or whether profounder politicians may not be able to diſcover
ſome hidden force, ſome peculiar virtue, in the eſſential parts,
or in the well-adapted frame of our excellent conſtitution: In ei-
ther caſe this fingular and ſhining phænomenon hath afforded a
chearful
.
WILLIAM EARL OF MANSFIELD.
143
chearful.conſolation to thinking men amidſt all this dark aſpect
from our diſorders and diſtreſſes.
“But the evil genius of England would not ſuffer us to enjoy it
long; for, as if envious of this laſt ſupport of government, he
hath now inſtigated his blackeſt agents to the very extent of
their malignity, who, after the moſt villainous inſults on all other
orders and ranks in ſociety, have at length proceeded to calum-
niate even the king's ſupreme court of juſtice, under its ableit
and moſt unblemiſhed adminiſtration.
“ After this, who will be tempted to deſpair of his country, and
fay, with the good old man in the ſcene;
content
66
N
Ipſa ſi cupiat ſalus
“ Servare, prorſus non poteft, hanc familiam ?”
“ Athens, indeed, fell by degenerate manners like our own; but
ſhe fell the later, and with the leſs diſhonor, for having always
kept inviolate that reverence which ſhe, and indeed all Greece,
had been long accuſtomed to pay to her. auguſt court of Areopa-
gus. Of this modeſt reſerve, amidſt a general diſorder, we have
a ſtriking inſtance in the conduct of one of the principal inftru-
ments of her ruin.
“ The witty Ariſtophanes began, as all ſuch inſtruments do,
whether with wit or without, by deriding Virtue and Religion ;
and this in the brighteſt exemplar of both, the godlike Socrates.
The libeller went on to attack all conditions of men.
He calüm-
niated the magiſtrates ; he turned the public aſſemblies into ridi-
cule ; and with the moſt beaſtly and blaſphemous abuſe outraged
their prieſts, their altars, nay the very eſtablished gods them-
ſelves ;; but here he ſtopped, and, unawed by all beſides, whether
of divine or human, he did not dare to caſt ſo much as one li-
centious trait againſt that venerable judicature ; a circumſtance.
which the readers of his witty ſayings cannot but obſerve withi
ſurprize and admiration-not at the poet's modeſty, for he had
none,
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none, but at the remaining virtue of a debauched and ruined
people; who yet would not bear to ſee that clear fountain of
juſtice defiled by the odious ſpawn of buffoons and libellers.
“Nor was this the only conſolation which Athens had in its ca-
lamities. Its pride was flattered in falling by apoſtate wits of the
firſt order ; while the agents of public miſchief amongſt us, with
the hoarſe notes and blunt pens of ballad-makers, not only acce-
lerate our ruin, but accumulate our diſgraces; wretches the
moſt contemptible for their parts, the moſt infernal for their
manners.
“ To conclude. Great men, my lord, are ſent for the times;
the times are fitted for the reſt, of common make-Eraſmus, and
the preſent chief juſtice of England (whatever he may think), were
ſent by Providence, for the ſake of humanity, to adorn two pe-
riods, when Religion at one time, and Society at another, moſt
needed their ſupport; I do not ſay of their great talents, but of
that heroic moderation, fo neceſſary to allay the violence of public
diſorders; for, to be moderate amidſt party extremes requires no
common degree of patriotic courage.
“ Such characters rarely fail to perform much of the taſk for
which they were ſent, but never without finding their labour ill
repaid, even by thoſe in whoſe ſervice it was employed. That glory
of the prieſthood left the world he had ſo nobly benefited with this
tender complaint : * Hoc tempore nihil fcribi aut agi poteft quod non
pateat calumniæ ; nec raro fit, ut dum agis circumſpectiſſime ulrumque
partem offendas, quum in utraque fint qui pariter inſaniant." A
complaint, fated, alas ! to be the motto of every man who greatly
ſerves his country.”
The very elegant tribute of reſpect to the memory of lord
Mansfield paid by another highly diſtinguiſhed prelate, the biſhop
of Worceſter, in his Preface to a new edition of Biſhop Warburton's
Works, will, it is humbly conceived, come in more appoſitely
towards the concluſion of this work.
In
WILLIAM EARL OF MANSFIELD.
145
In the ſame year, 1765, upon the death of the late lord chan-
cellor Hardwicke, a'warm conteſt aroſe in the univerſity of Cam.
bridge, between the earls of Sandwich and Hardwicke, for the
office of high ſteward, wherein the effect of Queen Elizabeth's
ſtatutes and of the old ordinances was elaborately diſcuſſed.
The conteſt terminated in favor of lord Hardwicke, and the ju-
riſprudent will find much deep learning on the ſubject in 3
Burr.
1647, who employs near twenty folio pages in reporting the ar-
guments and judgement of the court.
The Earl of Mansfield in his moral character was irreproachable,
inſtructive, and exemplary. Whoever examines this ſerene part
of his character with an impartial, diſcerning eye, with a view to
profit by the various admonitory hints, which he took every fair
occaſion to inculcate, even in his judicial capacity, cannot fail to
view this illuſtrious character in a very pleaſing light.
To manifeſt his opinion of the falutary effects of the new gaols
in Suſſex, Glouceſter, Oxford, Stafford, and other counties,
where uſeful reform has been promoted by ſolitary confinement,
he was accuſtomed to relate the following anecdote or little dia.
logue between himſelf and the governor of Horſham new. gaol in
Suſſex.
Lord Mansfield.—-6 A few hours only have flitted or paſſed
away, ſince, in the diſcharge of my duty as a judge, I delivered
your new gaol. I was very much pleaſed at the ſight of a calen-
dar where the number of priſoners, which formerly have fallen to
my lot to try for offences at Horſham, was reduced more than
one half; I am now very much aſtoniſhed to find, that the few
priſoners I have tried at this period would not occupy one fourth
part of the new gaol. How can your lord lieutenant ſatisfy the
county of Suſſex, that there has not been prodigality and waſte
of the county-money, in raiſing ſo large and ſtately an edifice,
three-fourths of which appear to be untenanted ?"
U
The
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99.
The anſwer was : My lord, I muſt leave his grace of Rich--
mond to anſwer for himſelf: I have very little doubt of our lord
lieutenant acquitting himſelf of your lordſhip’s heavy charge of
prodigality. This, my lord, I can truly ſay, that I was twelve
years keeper of the old gaol, and have been near twelve:
years
governor or keeper of the preſent county-priſon. I can ſay far-
ther, that the new gaol was built upon a plan to contain the
average number of criminals and debtors which the old priſon
was accuſtomed to hold in durance vile. But, my lord, although
in days of yore my viſitors were very troubleſome, and very fre-
quent in their viſits to me, diſcharged at one aflizes, and in priſon
again within the old walls long before the next; yet fuch, my
lord, is the effect of our folitary confinement, and of making a
rogue think a little, and become acquainted with himſelf, that, in
the courſe of the laſt twelve years, I can ſolemnly declare before
your lordſhip, that only one ſingle priſoner has been. twice within
theſe walls !"
“Good God !" replied the noble Earl, “this. language of
experience is very forcible, and the fact ought to be more ge-
nerally known.”
If a digreſſion of a few lines may be pardonable in the au-
thor, he can, with pleaſure, add, that, on his relation of this
plain fact at a county-meeting, when the conſideration of the
plan for a new gaol and moderate ſolitary confinement were the
ſubjects to be diſcuſſed, the lord lieutenant of the county of Staf-
ford was pleaſed to expreſs his entire approbation of Mr.
Howard's plan of priſons, and particularly of ſeparate or folitary
confinement, and to requeſt that any magiſtrate then preſent,
who had any objections to make thereto, would anſwer the au-
thor of theſe ſheets, who had told the plain tale reſpecting Hor-
ſham new gaol, and would refute, if poſſible, the governor of
Horſham new priſon and the language of experience.
An
2
WILLIAM EARL OF MANSFIELD.
147
An interval of filence prevailed ; no objector roſe to attempt a
refutation, or to militate againſt the propoſition for a new gaol,
principally founded on the model of Glouceſter gaol. The work
was begun in 1789; in 1792 it was completed. In the year 1793
it was inhabited very thinly indeed; the number of priſoners in
the calendar of this year being reduced nearly one half below
that of the year 1791.
Thus one more ſuffrage is added to the ſyſtem of uſeful re-
form, which, as experience has evinced, may be wiſely promoted
by well-timed and moderate ſolitary confinement.
The virtues which were moſt conſpicuous in lord Mansfield's
private character, and which gained moſt on his affections, were
a love of moral rectitude, and fidelity in friendſhip. In public
as in private life, his precepts and his practice inculcated, re-
commended, and enforced, every branch of moral rectitude. In
trying a cauſe at the ſittings after term at Guildhall, a merchant
loſt his temper, who was the defendant in an action of debt, in
detailing, with great warmth, to the chief juſtice, the great in-
dignity put upon him, a merchant of London, by the plaintiff,
in cauſing him to be arreſted, not only in the face of day, but on
the Royal Exchange!
Lord Mansfield, with great compoſure, ſtopped him, ſaying,
“ Friend, you forget yourſelf; you were the great defaulter, in
refuſing to pay a juſt debt; and let me give you a piece of ad-
vice, worth more to you than the debt and coſts. Be careful in
future not to put it in any man's power to arreſt you for a juſt
debt, in public or in private.
In his friendſhips, he was cautious in making them, but none
more conſtant in preſerving the various links when
they were riveted, or more zealous in the diſcharge of all the
pleaſing duties of friendthip. The learned man, in him, fre-
quently found a patron, and a zealous promoter of his merit.
And whenever an ingenious barriſter was diſcovered, whoſe for-
U 2 -
was
tunc
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tune was ſmall, or whoſe friends were few, he was foothed and
rejoiced to find, unaſked, and when leaſt expected, ſome generous
plan ſuggeſted, matured, and carried into execution, to ex-
tricate him from difficulties, or to point out the path to future
fame.
Some of the ſhining ornaments of the bar have in early life
experienced the viciſſitudes of fickle fortune, have had their legal
ftudies embittered with difficulties and diſtreſs. Not a few, who
have emerged from early embarraſſment, will, I am perſuaded,
ever recollect with gratitude, and may exult in the recollection
of the earl of Mansfield's interpoſition in their behalfs, and in
various pleaſing inſtances conducted with peculiar adroitneſs and
delicacy, ſo as not to wound the feelings of any one.
His lordſhip had read with critical accuracy, and with a pe-
netrating eye, the important book of human life, and was very
ſkilful in probing the heart of man. He could develope ſtrata-
gem, however artfully concealed under the cloak of hypocriſy or
diſſimulation.
In the Tuſcan code of laws promulgated and eſtabliſhed with
ſome ſucceſs by the late emperor of Germany, when duke of
Tuſcany we learn, that certainty of puniſhment, after the guilt of
the perpetrator of a crime had been fully proved, contributed
forcibly and conſiderably to the prevention of crimes. Lord
Mansfield ſeems to have coincided in this opinion generally, and
particularly when the very dangerous crime of forgery in a com-
mercial ſtate became the ſerious ſubject of diſcuſſion. Not a life
of unſpotted integrity previous to the commiſſion of a ſingle
crime could ſave Robert Perreau, the favorite companion of
fome, and the excellent apothecary to many, noble families. By
honeſt induſtry and uncommon diligence in his medical profeſ-
ſion he had acquired fomething like a competency, but, like too
many vain and aſpiring mortals, he muſt move in a different
ſphere, and gain a large fortune in the banking-line. Deluded and
de-
WILLIAM EARL OF MANSFIELD.
149
1
i
1
deceived by a brother, and by a moſt artful woman-a forgery
was committed, and his life paid the forfeit to the laws of his
country. The interceſſions of the great did not weigh in the ba-
lance which the chief juſtice held in the council. Forgery is a
ſtab to commerce, and only to be tolerated in a commercial na-
tion when the foul crime of murder is pardoned.
A few years afterwards Dr. Dodd's ſentence for a fimilar crime
of forgery became the ſerious ſubject of debate in a high circle.
Great intereſt was made to mitigate the ſentence; but the ſtrong ex-
preſſion of the chief juſtice is ſaid to have precluded mitigation,
which, according to general report, was to the following effect :
“ If Dr. Dodd does not ſuffer the juſt ſentence of the law, the
Perreaus may be ſaid to have been murdered.”
1768.
The ſingular events of the year 1768 were the cauſes of the
public prints being, for the firſt time, deluged with torrents of
abuſe on the lord chief juſtice. Theſe events therefore ſeem to
merit particular attention and diſpaſſionate inveſtigation, with
a view to diſcover whether the virulence of this abuſe was me-
rited, and whether the diſcuſſion thereof may be ſcrutinized,
without endangering the legal reputation and exalted character
of the earl of Mansfield.
The general election was in that year. Mr. Wilkes, returned
from abroad, became a candidate for the city of London, and
afterwards was choſen repreſentative for the county of Middleſex.
Having been outlawed ſome years before, he now applied for a
reverſal of that proceeding. The conſideration of it came feve-
ral times before the court of King's Bench; and the juriſprudent
will find a general and faithful account of the various proceed-
ings, given by Sir James Burrow in his Fourth Volume of Re-
ports, p. 2527, and in the twenty ſubſequent pages; a diligent
peruſal whereof will not fail to impreſs on his mind, not only
the:
1
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the intenſe application, induſtry, and ingenuity, of the bar, ex-
erciſed in deep reſearches into black-letter law, but alſo the very
able aſſiſtance given by the puiſné judges, previous to the judge.
ment of the court, wherein all the labyrinths ſeem to have been
explored, which for many centuries had lain unexplored ; and
which, by any poſſibility, might lead to the developement or
elucidation of the mazy and dark paths of outlawry.
The ſeverity of the puniſhment in ſome inſtances, the fatal
conſequences of flight in others, ſeem to preponderate in favor
of a faithful tranſcript of lord Mansfield's long, diverſified, and
wonderful ſpeech. The author is not a little apprehenſive that
the diſcuſſion of, and enquiry into, forins of office and ancient
precedents, may be unentertaining to ſome readers ; yet, inaſ-
much as they are the foundation on which the reverſal of the
outlawry was built, it is to be hoped that the inſertion of the
formal part will be pardonable ; while the glowing language and
brilliancy of the latter part, when aſſimilated with the former,
ſeem to exhibit diverſified tints, like thoſe of light and ſhade in a
chef d'ouvre of a Claude or a Titian, and cannot fail to cap-
tivate, ſo long as animated diction and purity of ſtyle poſſeſs the
power of pleaſing:
His lordſhip, after having paid a handſome tribute of grati-
tude to the bench and the bar for the able aſſiſtance he liad re.
ceived from both, proceeded thus :
" It is not only a juſtice due to the crown, and the party in every criminal
cauſe where doubts ariſe, to weigh well the grounds and reaſons of the judge-
ment; but it is of great conſequence to explain them with accuracy and
pre-
ciſion in open court, eſpecially if the queſtions be of a general tendency,
and upon topics never before fully conſidered and ſettled, that the criminal
law of the land may be certain and known.
Outlawry is a very important part of that law *. Yet it is no wonder,
that the forms and method of proceeding are ſo little attended to, and ſo lit-
* Fourth Burr, 2549.
tle
WILLIAM EARL OF MANSFIELD.
151
2
proceſs,
tle underſtood : for this is perhaps the firſt occaſion where any queſtion of
law upon a writ of error to reverſe an outlawry in a criminal caſe, ever un-
derwent a ſerious litigation.
“ Outlawry in civil actions is conſidered, as in the nature of civil
to compel an appearance to the fuit, or, if after judgement, to procure ſa-
tisfaction. The forfeiture, though nominally to the king, yet in truth goes
to the plaintiff towards payment of his demand. If the outlaw appears,
pays all the coſts, puts in ſufficient bail, and does every thing he can to put
the plaintiff in as good a condition as he would have been in originally; or if,
after judgement, the outlaw pays the debt and coſts; the court reverſes the
outlawry upon motion without any writ of error. The form of the rever-
ſal always is, “ for the errors aſſigned, and other errors appearing upon the
record;" although there is in truth no error at all.
“ Flight, in criminal caſes, is itſelf a crime. If an innocent man flies for
treaſon or felony, he forfeits all his goods and chattels, Outlawry in a
capital caſe is as a conviction for the crime; and many men, who never were:
tried, have been executed upon the outlawry.
“In miſdemeanors, outlawry is generally a more ſevere puniſhment than
would be inflicted for the crime of which the outlaw ſtands accuſed or con-
victed. It is a forfeiture of his goods and chattels, and all the profits of his
real eſtate, and perpetual impriſonment, with many incapacities. If it is
erroneous, it cannot be reverſed without a writ of error.
Till the Third of queen Anne, a writ of error, in any criminal caſe, was
held to be merely ex gratid. Lord Keeper lays it down *, “ that a writ of
error, in a criminal matter, was ex gratiá regis, in all caſes ;” and ſaid ut, “he
had a collection of ſeveral caſes out of the old books of the law, that were
given him by lord chief juſtice Hale, which ſhew, that writs of error, in
criminal caſes, are not grantáble ex debito juſtitiæ, but ex gratiá regis; and in
ſuch a caſe a man ought to make application to the king, and he will then
refer it to his counſel; and, if they certify that there is error, the king will
not deny a writ of error.” It never was granted, except when the king
from juſtice, where there really was error, or from favor, thouglr. there was
no error, was willing the outlawry ſhould be reverſed. After a writ of error
1. Vernon, 170. Crawle verſus Crawle.
up Vide 1. Vernon, 175, in the Rioters' caſe,
granted,
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THE LIFE OF
granted, the attorney-general never made any oppoſition, becauſe either he
had certified “ there was error," and then he could not argue againſt his
own certificate ; or the crown meant to ſhew favour, and then he had orders
“not to oppoſe.” The king, who alone was concerned as the proſecutor,
and who had the abſolute power of pardon, being willing that the outlawry
ſhould be reverſed; this court reverſed upon very Night and trivial objections,
which could not have prevailed if any oppoſition had been made, or if the
precedent had been of conſequence. The form of reverſal, “ for the errors
aſſigned, and other errors appearing upon record,” delivered the court from
the neceſſity of Specifying any; and they might think themſelves well war-
ranted to reverſe, upon the tacit or expreſs conſent of the king, where he
alone was concerned to oppoſe, though there really was no error at all: and,
as the king had the power to refuſe a writ of error, the precedent was of no
conſequence.
- But in the Third of queen Anne *, ten of the judges were of opinion,
" that in all caſes under treaſon and felony, a writ of error was not merely of
grace, but ought to be granted.” Price and Smith were of a contrary opi-
nion, “ that a writ of error was of grace only in all criminal caſes." The ten
did not mean “ that it was a writ of courſe," but that " where there was
probable error it ought not to be denied."
" It cannot iſſue now without a fiat from the attorney-general, who always
examines whether it be ſought merely for delay, or for a probable error.
"" In the caſe of the king againſt Earbury , the opinion of the court was
taken before the attorney-general granted his fiat for a writ of error. In
the preſent caſe the attorney-general refuſed his fiat, while the defendant was
out of cuſtody.
“ This opinion in the Third of queen Anne has made a great alteration as
to outlawries in criminal caſes under treaſon and felony. In a miſdemeanor, if
there be probable cauſe, it ought not to be denied: this court would order the at-
torney-general to grant his fiat. But, be the error ever ſo manifeſt in treaſon or
felony, the king's pleaſure to deny the writ is concluſive. Lord Muſkerry, the
ſon and heir of the earl of Clanclarty, petitioned for a writ of error to reverſe
his father's outlawry, becauſe his father was a priſoner in the Tower of Lon-
* Vide the Ayleſbury caſe.
other o George I. Vide ante, p. 2530.
don.
>
WILLIAM EARL OF MANSFIELD.
153
1
dón, during the whole time of the proceedings againſt him. The fact was
verified beyond doubt, by entries from the books of the Tower, and by the
affidavit of the dutcheſs of Marlborough. The late lord chief juſtice Willes,
then attorney-general, reported the writ to be merely of grace; and, upon
political reaſons, it was abſolutely refuſed, and the outlawry ſtands.
“A writ of error being as a matter of right, where there is error in the
outlawry, ſince the Third of queen Anne, in all crimes under treaſon and
felony, 66 What is an error" became an important queſtion, which was of no
conſequence before. Since that time, this court has not given way to
trivial objections, though admitted by the attorney-general. In 1708 lord
Griffin was brought into this court upon an outlawry for high treaſon ; and,
upon the prayer of the ſolicitor-general (there being then no attorney-ge-
neral), a rule was made for his execution. He was reprieved from time to
time till his death. His grandſon and heir, from the grace and favor of
king George the Firſt, obtained a writ of error. Sir Philip Yorke, then at-
torney-general, came into court, and ſaid, he had a ſign manual “ to confeſs
the errors, and conſent to the reverſal.” The court told him, “ his con-
fefing an error in law would not do ;. they muſt judge it to be an error, and
their judgement would be a precedent. But the plaintiff in error might
aſſign an error in fact, which, by proper authority, he might confefs.” Ac-
cordingly the plaintiff aſſigned an error in fa£t; viz. “ that the place of his
grandfather's reſider.ce was in the county of Northampton, whereas he had
been outlawed in London.” The attorney-general confeſſed the fact, where-
upon the outlawry was reverſed *. Since the Third of queen Anne, no
queſtion of law has been litigated upon a writ of error to reverſe an out-
lawry; no criminal outlawry has been reverſed upon a trivial objection :
no caſe ſince that time has been found of either kind.
“Outlawry is an eſſential part of the criminal law. The rules and method
of proceeding are wiſely calculated to prevent ignorance and ſurprize ; the
conſequences are made ſevere, becauſe the offence is heinous, and it imports
the ſtate that no man ſhould fly from the laws and juſtice of his country.
This court is bound to pronounce the law as they think it is, always leaning
to the favourable fide, where they doubt; for fo ſays the law. It is as much
a breach of duty to reverſe a good, as it would be to affirm a bad, outlawry.
* Hil. 13 George I
X
The
154.:
THE LIFE OF
1
The miſchief goes farther than an unrighteous ſentence in the particular
caſe ; for, to reverſe without an error is to aboliſh that part of the law.
And therefore ſerjeant Glynn admitted that criminal outlawries were not to
be reverſed of courſe; an error muſt be found.
" In a matter where the conſequence may be ſo penal to the defendant in
this particular caſe, where the grounds of the judgement muſt be ſo impor-
tant to a very eſſential part of the criminal law never before brought ad-
verſely in queſtion, and therefore lying under great obſcurity and confu-
fion, I feel myſelf extremely obliged (and. I think the public obliged) to
thoſe who, in the ſhort time taken for conſideration, have ſearched the ſub-
ject to the bottom. From the materials with which I have been furniſhed,
I think myfelf ſufficiently inſtructed to form an opinion ; and I will declare
the 'grounds and reaſons of that opinion which I have formed, to this great
and numerous audience, with as much accuracy as I can, to prevent miſap-
prehenſion.
There are two forts of error which have been afligned and argued,
1. The firft fort are errors which give riſe to queſtions of law and real ar-
guments.
II. The fecond are criticiſms upon words and ſyllables in the return.
Of the firſt, two are aſſigned:
1. That there is no ſufficient information filed or exhibited againſt the de-
fendant, whereon to ground the proceſs of outlawry.
2. That no public proclamation whatſoever is mentioned to have been made
at any open court, or at any general quarter-ſeſſions of the peace whatſo-
ever, or at the doors of any pariſh-church where the faid defendant was an
inhabitant, according to the exigency of the ſaid writ of Capias cum Precla-
matione.
Under the firſt error affigned, three objections have been made.
1. That the information is by the folicitor-general, and not the attorney-
general.
II. That an outlawry does not lie upon an information.
III. That, though it may lie upon an information, yet it does not lie for
fuch an offence as is proſecuted in either of theſe caſes.
Firſt. The information is by the folicitor-general. If this objection is
founded, it will equally hold upon a motion in arreſt of judgement; but I
believe none of us, from the beginning, ever entertained the leaſt doubt
concerning it. An information for a miſdemeanor is the king's ſuit. The
5
title
WILLIAM EARL OF MANSFIELD.
155
1
title of the caufe is, “ the king againſt the defendant." The oath at the
trial, to tlie jurors and the witneſſes, is, “ between the king and the de-
: fendant.” As a fubject ſues by attorney, ſo does the king, with a little va-
riation of form, from decency: inſtead of ſaying, “ the "king ſues by," it
is ſaid, “ ſues for the king :” and yet coram domino rege venit * dominus rex
per attornatum fuum, et inde producit feetam,” was held to be good. (Hale
chief juſtice faid, it was but an unmannerly way of declaring for the king.)
The attorney is anſwerable, if he acts without authority; and upon com-
plaint by the party whoſe name he has falſely uſed, the court would puniſh
him, and ſet aſide the proceedings : but, while the principal avows him, nei-
ther the adverſe party nor the court can diſpute his authority. The coroner
of this court profecutes informations for the king as his attorney. The
form of the proclamation, at criminal trials, is a ſtrong proof that antiently
the king's ſerjeant might proſecute for the king. When there did not exiſt
ſuch an officer as ſolicitor-general, the king's ferjeant, or his attorney, or
other that would ſue for the 'king, ſhould be received, to aver againſt the
teſtimony of the parties impriſonment, where the outlawry was pronounced
at the king's fuit p. There are many entries in Raſtal *, which ſhew, that,
at the common law, others than the attorney-general have ſued for the king;
or, in other words, the king has ſued by others as his attorneys. Serjeant
Glynn cited a manuſcript treatiſe concerning the ſtar-chamber, of which Mr.
Filmer has a copy. The original is in the Muſeum . The author's name is
preferved in a note written in this preſent book, at the beginning, by the
lord keeper Finch, as follows: “This treatiſe was compiled by William Hud-
fon, of Gray's Inn, Eſq. one very much practiſed, and of great experience
in the ſtar-chamber, and my very affectionate friend. His ſon and heir
Mr. Chriſtopher Hudſon, (whoſe hand-writing this book is,) after his father's
death, gave it to me, 19th December, 16359 3. Finch." The whole paſſage
ſhould be taken together, and is in theſe words: “It remaineth, that I ſhall,
* 2d Lev. 82. 3 Keble 127. Raftal's Entr. 655.
oft Vid. 5 Ed. III. c. 13.
Title, Debt, 192, pl. 4. Title, Eſcheat, 113, pl. 3. Title, Quare im-
pedit, 527, pl. 1.
§ Harleian Catalogue, No: 1226. vol. I.
X2
in
156
1
THE LIFE OF
-
in the next place, treat of the king's ordinary ſuits, which are of two forts,
either by his attorney informing of himſelf, or by other men's relations,
and by the king's almoner; the one being in criminal cauſes, the other. in
civil. For the king's attorney I lave known it much queſtioned, whether.
any dther of the king's counſel may not inform for the king, as well as the
attorney-general. And it is true, that in Eaſter Term 8 H. VIII. it is ordered,
that the king's ſolicitor-general ſhall not proſecute any farther the merchants
of the Stiliard, till it were otherwiſe ordered by the council ; and, the ſame
term, the ſolicitor was commanded to ſue out proceſs againſt ſome which ac-
quitted one Blaſe of a rape. So that it ſeemeth that others of the king's
counſel did proſecute cauſes for the king, as well as the king's attorney.
But, in it and 2d James the Firſt, it was reſolved by the court, that it bé-
longeth to the place of the attorney; and ſerjeant Heale, the king's ferjeant,
putting in a bill againſt Sir John Luſon, was denied that privilege ; for, if a
bill be put in by the king's counſel, as for the king; there are no coſts to be
paid to the defendant, nor fees for the proſecution : but in this caſe ſerjeant
Heale's bill was diſiniffed with thirty pounds coſts, it continuing in profecu-
tion not above tivo terms. It is aſtoniſhing how any other law-officer of the
king could claim, as an official right, to be the king's attorney in all ſuits
which he ſhould think fit to bring in the king's name. The very .conftitu-
tion of an attorney-general is deciſive againſt it; he might ſtop every ſuit
brought by another; and therefore the counſel did very right; as between
the king's-law-officers, to over-rule ſerjeant Heale ; but they did not mean
that the king himſelf, for ſpecial reaſons, might not appoint another to act
as his attorney. In that reign, afterwards, Yelverton was ſuſpended, and the
folicitor appointed to act. . Suppofe the attorney-general perſonally, the de-
fendant, there muſt be another to fue for the king. Suppoſe the attorney-
general out of the realm, or under a diſability from fickneſs ; ſuppoſe the
office of attorney-general vacant: .when it is, the buſineſs (which cannot:
ſtand ſtill) muſt devolve upon another of the king's counſel : and there is
nothing ſo certain, as that the whole buſineſs and authority of the attorney
devolves upon the ſolicitor-general." I am ſatisfied that, if the matter was
traced, the two precedents in Eaſter Term 8 H. VIII. mentioned by Mr. Hud...
fon were during the vacancy of the attorney's office.
It is impoſſible the counſel could, in the ſame term, order the ſolicitor-
general to ſtop one public proſecution and commence another, if there had
been an attorney-general. As far back as the meinory of the vacancies of
the
1
mo
WILLIAM EARL OF MANSFIELD.
157
:
the attorney's office has led to a ſearch, precedents have been found of informa-
tions filed by the ſolicitor-general in chancery, and on the law fide of the
exchequer. In this court the information againſt the earl of Devonſhire *
was proſecuted by the ſolicitor-general ; and, though the enormity of the
fine fet, and the revolution of government which immediately, followed,
made this caſe the ſubject of much animadverſion and juſt cenſure, “ the
ſolicitor-general having proſecuted was never objected. There are prece-
dents of replying, demurring, taking iſſue, praying judgement or award of
execution, by the ſolicitor-general during the vacancy of the other office.
We all know, from our own experience, that, upon every vacancy which we
remember of the attorney's place, his office has been executed by the foli-
citor-general; but it is ſaid, “ the information ought to have ſuggeſted that
the office of attorney was vacant:" many of the precedents do not ſuggeſt
it; and there can be no occaſion. The attorney-general is a great officer of
the law and of this court. The court take notice wlien the office is vacant,
and by whom it is filled, when full; they give credit to the ſolicitor-general,
when he ſues as attorney for the king, " that he has authority ;" he does it
at his peril. In this caſe, before the defendant pleaded, the ſolicitor-general
was made attorney, and in that capacity brought into court the information
he had filed as ſolicitor. If an objection could lie to his authority as foli-
citor, the only queſtion would be, “ from what time the information ſhould
be conſidered as commenced, from the filing by the ſolicitor, or the bring-
ing into court by the attorney;": and that could be of no conſequence, but
in reſpect of the time when the defendant ought to plead: but he has
pleaded to the information brought in by the attorney-general, and been
tried." In every light, and in every view, this objection is groundleſs; 110-
thing has been offered to fupport it but ſerjeant Heale's caſe. Upon ſo plain
a point, I certainly ſhould not have faid ſo much, but that the objection
alſo goes in arreſt of judgement; and therefore may be argued again. The
counſel are apprized of my reaſons : and, if they ſhould think their objection
tenable, I am open to conviction.
“ Second objection, under the firſt error afligned,“ that an outlawry does ..
not lie upon an information.”?
.
* 3 Jac. II.
66 The
>
158
THE LIFE OF
- The counſel for the defendant fupported this objection two ways. Firſt;
they faid, the books were filent on this head : and the ſtatute of additions
mentions only that, “in original writs of perſonal actions, appeals, and
indictments, in which the Exigent ſhall be awarded, &c. &c. * :" but an in-
formation is not therein mentioned. Secondly, they ſaid, that from the na-
ture of the proceſs, in an information, the Exigent was not awardable ; for, the
proceeding by information in this court is ſimilar to the ſtar-chamber pre-
cedents; and, in ſuch proceedings, they did not award a capias, but a ſubpæna.
That here the antecedent proceſs is by ſummons of attachment, not by ca-
pias ; and conſequently, if there is no capias to introduce the proceſs of
Exigent, it cannot lie in this caſe. Serjeant Glynn admitted, as a point
beyond all doubt, “ that informations of this kind were competent in this
court at the common law.” No lawyer ever doubted of it; no lawyer would
ſeriouſly argue againſt it ; ſo that Sir Bartholomew Shower had no opportunity
to deliver the argument he has printed Informations here neither de-
rive their being, nor the form of proceeding upon them, from the ſtar-cham-
ber, but from the common law of the land, and the uſage and practice of
this country where they are exhibited. Although inforinations are not men-
tioned in the ſtatute of additions, yet the fame requiſites of certainty and
preciſion muſt be in an information as in an indictment Preſentment is
not mentioned in this ſtatute ; and yet, on a preſentment before the coroner,
“ that Frenche was fela de ſe," which was certified into the King's Bench,
" and that certain of Frenche's goods were in the pofleffion of J. S.” proceſs
iſſued againſt J. S. until he was outlawed ; and upon error brought, “ for
that there was not any addition given to the ſaid J. S. in the preſentment
upon which he was outlawed,” it was at firſt doubted, “ whether upon that
prefentment proceſs of outlawry did lie;" and. Ive, then clerk of the crown
office, ſaid to the court, “ that ſuch proceſs in ſuch caſe did lie; and
that he could ſhew five hundred precedents of it.” And ſecondly it was
moved, “if this outlawry ought to be reverſed for default of addition;" but
it was agreed by the whole court, that, as to this purpoſe, the preſentinent
* Vid. i Hen. V. c. 5. V I.
+ Shower, rot, Rex verfus Berchet et alios. Prynn's cafe, 5 Mod. 459.
2 Hawkins, P. C. 260, 261.
Thould
WILLIAM EARL OF MANSFIELD.
159
1
4
ſhould be accounted in law as an indictment*. To an information in nature
of a Quo Warranto, to ſhew by what authority the defendant claimed to be
a burgeſs of Grampound, the defendant pleaded in abatement, for want of
proper addition, the information ſtyling him a “ labourer,” whereas he was
clothier ; and this plea was moved to be ſet aſide, on the ground, that an
addition was not neceſſary.” The court refuſed to ſet it aſide on that
ground; but they found another, the want of a proper affidavit to verify the
plean. There feems as good ground to ſay, upon the foot of precedents,
and conſtruction of the ſtatute of additions, “ that proceſs of outlawry lies,
and addition is requiſte in an information, as in the preſentment in Frenche's
caſe. As to the other argument from the nature of the proceſs, there was
no authority or precedent cited or produced to prove the aſſertion. On the
contrary, there are many precedents where the proceſs was by Capias, and
the Exigent followed ; ſome as in the preſent caſe, though moft are before
conviction; but " that a Capias does lie in proceſs upon theſe informations,
I take to be as old as their exiſtence ; if not, how could there have been
fuch a number of outlawries upon informations; and ſome of antient date?
All theſe records are ſo many authorities to ſupport this proceſs, which are
not, after fo great a length of unqueſtioned uſage, to be now impeached † ;
and it is obſervable on the 18th of Edw. III. ſt. 1. that it not only clearly
Jelates to a proceeding before judgement; but it gives the Exigent, if the
party is not brought in on an attachment or diArefs. However, there is no
need to refort to that kind of reaſoning, when uſage fupports the Capias, in
the preſent cafe, as the common procefs upon theſe occafions.
“ Third objection, under the firſt error affigned, “thrat outlawry does not
tie from the nature of the offence."
"This objection was ſlightly touched by Mr. Serjeant Glynn, but ftruck
LES at firſt as a point fit to be conficlered'; and I mentioned to the bar, " that
it might be proper to look into it." The doubt was, “Whether the offence.
charged in either of theſe informations was ſuch as rendered the perſon ac-
cuſed of ſuch crime liable to the procefs of outlawry, either at common law or
by any ſtatute. In Coke, Littleton, 1289, it is ſaid, that in the reign of king
* Frenche's cafe, Mich. 26 Eliz.
2 Leonard 200.
of The king againſt Pardew, H. 15 Geo. II. 1741..
5
Mod. 463, 464.
Alfred,
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THE LIFE OF
Alfred, and till a good while after the Conqueſt, no man could be outlawed,
but for felony; the puniſhment whereof was death.” But after, in Braĉton's
time, and ſomewhat before, proceſs of outlawry was ordained to lie in all
actions that were Quare vi & armis, which Bratton calls.“ Delicta ; for, there
the king ſhall have a fine.” The 18th Edw. III. ſt. 1. declares the caſes
and offences for which the Exigent ſhall be awarded, if the party cannot be
found, or brought in by attachment or diſtreſs, and not againſt any other.
Alſo the 18th Edw. III. ſt. 2. c. 5. ſays, “ No Exigent ſhall from hence-
forth go out where a 'man is indicted of treſpaſs, unleſs it be againſt the
peace, or of things which be contained in the declaration made in that caſe
at the laſt parliament.” But, upon full confideration, I am very well ſatis-
fied that the counſel for the defendant judged right in laying no ſtreſs upon
this objection. The offences laid in theſe informations, and the pro-
ceedings upon them, are at the common law. The ſtatutes giving proceſs of
outlawry in certain caſes, and reſtricting its iſſuing in others but under
certain circumſtances, do not affect the preſent queſtion. The proceſs is
warranted in the preſent caſe by the common law, or not at all. Aftual force
or violence does not appear to be the criterion upon which the proceſs of
outlawry was founded. The greatneſs of the crime, and the ſeverity of the pu-
nifoment, ſeem to be the material circumſtances originally attended to in
founding this proceſs, according to the paſſage I have juſt cited from Coke
as to the earlieſt times ; for, felony does not imply or convey the idea of
actual outrage; grand larceny being, in its definition, as well as practice,
different. And Hawkins confirms this notion, by ſaying, “ that this proceſs
probably lay for all crimes of a higher nature * than treſpaſs vi & armis.
The extenſion of this proceſs is ſuppoſed by lord Coke, in the paſſage I
quoted, (and what he ſays is repeated, without examination, by a variety of
authors,) to have been ſomewhat before Bracton's time. The eſtabliſhing
that period for a ſuppoſed ordinance concerning outlawries ſtrongly authen-
ticates the teſtimony of that contemporary writer, touching the caſes in
which, and under what circumſtances, this proceſs lay. Lord Coke ſaw,
that it was impoſſible to ſay " that outlawry did not lie for any crime under
felony;". univerſal practice ſhewed the contrary. So he ſuppoſes a poſitive
ſtatute made about Bratton's time. There does not appear any particular or-
2 Hawkins, P. C. 1. 2. C. 27, p. 302.
dinance
WILLIAM EARL OF MANSFIELD.
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1
dinance for extending this proceſs; and there is no authority for the ſuppofi-
tion ; but Bracion, who wrote in the reign of Henry III. ſays, " that it lay
in omni tranfgreffione que fit contra pacem *;" and afterwards, “ pro omni tranſ-
greffione, licet ininimá, ubi quis ad pacem domini rcgis vocatus venire recufaverit,
& hoc propter contumaciam.” That this neceffary ingredient os contra pacem
did not mean poſitive force in the committing of the offence, appears from
the reaſon given, wliy it lay for felony, '2 Ro. Abr. 805. outlawry lay for
felony; becauſe it was contra pacem: for, that could not mean, as I have al-
ready ſaid, more than its being an offence in its nature againſt the laws of
ſociety, and a diſturbance of that good order and government which keeps a
ftate in unity and peace. The crime of larceny, in its very nature, is ſecret
and fraudulent, unleſs it be done with open violence, and then it is di-
ftinguiſhed by the aggravated name of robbery. Beſides, in the caſe of
writs Quare vi & armis, in which caſes this proceſs is given, it is acknow-
ledged to be on account of the ſuppoſed, not the actual, force; and ſo is the
ſame place in 2 Ro. Abr. 805. and the 35th Hen. VI. 68 and , and many
other books. In fact, therefore, it appears from Bratton, “ that every offence
committed againſt the peace ſubjected the delinquent to the proceſs of out-
lawry;" and the caſes Thew, that the peace of the king is broke by diſorders
without force; and indeed ſome of the greateſt crimes are without force. If
force was the criterion on which this proceſs of Exigent was founded at com-
mon law, why was that proceſs given by the firſt of ſtatute of Edward the
Third in the caſe of Riots, &c. ? or what occaſion had there been for the
ſubſequent * ſtatute of Edward the Third, to ſay, “ From henceforth it
ſhall not iſſue in treſpaſs, unleſs it is againſt the peace,” if the practice had
not been upon indictments, though not ſo alleged, for proceſs of Exigent to
iſſue? And that ſeems to be the true reaſon of the laſt reſtrictive ſtatute,
I don't find that it ever was denied but that, upon a preſentment or indict-
ment for the king, proceſs of outlawry lay; and ſo it it expreſsly ſaid to be
agreed in Brooke, title “Exigent," which cites 8 Henry VI. || but a num-
ber of outlawries have been found in crimes laid to be contra pacem, without
1
* Lib. III. p. 127.
ofio 18 Edw. III. ſt. 1.
18 Edw. III. ſt. 2. c. 5.
Vid. Bro. Abr. title Exigent et Capias, pl. 29, and title Proceſs, pl. 16.
Y
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vi & armis, and which could not be comniitted with force, and this error
never aſſigned: which alone is deciſive. I think Mr. Attorney-general pro-
duced one as far back, as the fifth of Edward the Fourth.
The ſecond error afligned is, as to the proclamations.
The return fays, “I have cauſed public proclamation to be made in mana
ner and form.as I.am within commanded.” This is certainly, too looſe. The pro-
clamations are not ſufficiently ſet out for the court to judge whether they were
properly made or not. I thought this error fatal ;. but Mr. Thurlow fatisfied
me, ".that it was unneceſary to make any proclamation at all.” The ſtatutes
which require proclamations do not extend to this caſe; and they are not
Tequired by the common law. Indeed this error was in a manner dropped, and
given up by Serjeant Glynn upon his reply. He did not contend' " that they
were neceſſàry.” The preſent record, drawn in the Crown Office, and ſet-
tled by king's counſel, ſhews under what obfcurity and perplexity this mat-
ter lies; the reſult of ignorance in the practiſers, and productive of a ſhame-
ful confuſion in the precedents of the office.. They have not diſtinguiſhed
between civil and criminal outlawries. They have not diſtinguiſhed between
the manner of proceeding to outlaw in criminal caſes before and after con-
viction; all is jumbled together. Whatever is required in any caſe they have
applied to all. Circumſtances are unneceſſarily required, and defectively.
returned, becauſe former miſtakes are copied as precedents, without exami-
nation ; but, as the proclamations in this caſe were nugatory and ſuperfluous,
the imperfection of the return is of no conſequence : it is no error.
Of the ſecond ſort of errors, critical and verbal, two are aſſigned; which
were argued.
Firſt. For that it is not ſhewn, nor does it appear by the return of the
Sheriff of Middleſex, “.that the defendant was a firſt, fecond, third, fourth,
and fifth time exacted at the county court of the county of Middleſex,” as by the
law of the land he ought to have been before he was outlawed.
Under this error, thus aſſigned, two objections were made ;, as to the firſt
exaction, and as to the ſubſequent:
Firſt.. As to the firſt. The return is by two men, ſheriff of Middléfèx ;
66 At my county-court, held," &c. ſo that two men making one officer, that
is, Sheriff of the county of Middle fex, fay, ".at my court, held in the county
of Middleſex.” To raiſe a doubt, it is neceſſary to go out of the record into
hiſtory and law. We know from thence, that the ſame man might be the-
riff of two counties. Till the 13th of Elizabeth one perſon was ſheriff of
Somerſet
WILLIAM EARL OF MANSFIELD.
763
Somerſet and Dorſetſhire; and ſo of Suffex and Surrey, of Oxford and Berks, of
Warwickſhire and Leiceſterſhire ; and to this day the ſame perſon is ſheriff of
Cambridge and Huntingdonſhire. Such a ſheriff might by law hold in either
the county-court of the other. 6 Hen. VII. 156. In the caſe of the ſheriff of
Somerſet, who was then alſo ſheriff of Dorſetſhire, my court in the county
of Somerſet,” was adjudged uncertain. II Hen. VII. 109. in a like caſe, Rede
Fairfax and Hulley inclined to think it certain enough, and adjourned the
conſideration ; but here it is impoſſible to raiſe a doubt, unleſs the fheriff of
Middleſex may hold the court of another county in Middleſex. “At my
county-court" can only be the county-court of Middleſex. Two men, ſheriff
of Middl_fex, never were, nor could be, ſheriff of any other county. The
error is not aſſigned for want of any technical form of words, but so that it
is not ſhewn, nor does it appear by the return;" whereas I am of opinion,
it is ſhewn, and does appear by the return, that the county-court was of
Middlefex, and could not poſſibly be the court of any other county.
Secondly. As to the ſubſequent exactions. The objection is, “ that it is
not ſhewn, nor does it appear, where the court was held, at which he was
exacted." The return having ſpecified the place where the court was held,
at which he was firſt exacted, ſtates ſeverally the ſubſequent exactions, “ at
my court held at the ſame place.” So that the whole doubt is, “ whether the
ſame place includes the deſcription of the place referred to, which cannot
be a doubt in the language of the world ; for in truth the doubt can be no
other than “ whether the ſame place means the ſame place, that is, the place
before deſcribed ?"
Second critical error. The only other error aſſigned and argued is,
“ It is no where expreſſly ſhewn, that the place called Brook Street, where
the ſeveral county-courts are ſuppofed to have been held, is in the county
of Middleſex.” The return fays, “ At the houſe known by the ſign of the
Three Tons in Brook Street near Holborn in the county of Middleſex.” The
counſel for the defendant contend, that the true conſtruction ought to be to
apply “ in the county of Middleſex," to Holborn, and not to Brook Street,
and ſo make a ſtop at Brook Street. It is impoſſible for me to doubt, whe-
ther “ near Holborn” is not part of the deſcription of Brook Street: it could
be added for no other reaſon: it could anſwer no end to ſay, "near Hol-
born,” but as part of the name of this Brook Street, in contradiſtinction to
ſome other Brook Street. It is immaterial what county Holborn is in ; but the
ſheriff was bound to Thew, that Brook Street was in Middleſex. There is no
law in this; it is a queſtion of conſtruction. All men can judge of it, and
would
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would treat with contempt the judgement of this ſovereign court, if it could
be founded upon ſo pitiful a prevarication. It is not permitted to me to say
I doubt of the conſtruction unleſs I do doubt, how much foever I may wiſh
that this outlawry ſhould not ſtand. I am of opinion, that, according to the
letter, ſenſe, and grammatical conſtruction of the ſentence, the court was
held in " Brook Street near Holborn;" and that “ Brook Street near Holborn"
lies in the county of Middleſex ; and I am perſuaded there is no man who can
think otherwiſe.
" Theſe are the errors which have been objected ; and this the manner
and form in which they are aſſigned. For the reaſons I have given, I can-
not allow any of them. It was our duty, as well as 'our inclination, ſedu-
louſly to conſider, whether upon any other ground, or in any other light, we
could find an inforınality which we might allow with ſatisfaction to our
minds, and avow to the world.
" But here let me pauſe.
“ It is fit to take fome notice of the various terrors hung out; the nume-
rous crowds which have attended, and now attend, in and about the hall, out
of all reach of hearing what paſſes in court; and the tumults which in other
places have ſhamefully inſulted all order and government. Audacious ad-
dreſſes in print dictate to us, from thoſe they call the people, the judgement to
be given now, and afterwards upon the conviction. Reaſons of policy are
urged, from danger to the kingdom, by commotions and general confuſion.
“Give me leave to take the opportunity of this great and reſpectable au-
dience to let the world know, all ſuch attempts are vain. Unleſs we have
been able to find an error which will bear us out to reverſe the outlawry, it
muſt be affirmed. The conſtitution does not allow reaſons of ſtate to in-
fluence our judgements. God forbid it Mould! We muſt not regard poli-
tical conſequences, how formidable ſoever they might be. If rebellion was the
certain conſequence, we are bound to ſay, “ Fiat juſtitia, ruat cælum.” The
conſtitution truſts the king with reaſons of ſtate and policy: he may ſtop
proſecutions ; he may pardon offences; it is his to judge whether the law or
the criminal fhould yield. We have no election. None of us encouraged or
approved the commiſion of either of the crimes of which the defendant is con-
victed; none of us had any hand in his being proſecuted. As to myſelf, I
took no part, in another place, in the addreſſes for that proſecution. We
did not adviſe or aſſiſt the defendant to fly from juſtice; it was his own
act,
WILLIAM EARL OF MANSFIELD.
165
1
1
act, and he muſt take the conſequences. None of us have been conſulted,
or had any thing to do with the preſent proſecution. It is not in our power
to ſtop it; it was not in our power to bring it on. We cannot pardon. We
are to ſay what we take the law to be. If we do not ſpeak our real opinions,
we prevaricate with God and our own conſciences.
I paſs over many anonymous letters I have received. Thoſe in print are.
public; and ſome of them have been brought judicially before the court.
Whoever the writers are, they take the wrong way. I will do my duty un-
awed. What am I to fear? That mendax infamia from the preſs, which daily
coins falſe facts and falſe motives? The lies of calunny carry no terror to me.
I truſt that my temper of mind, and the colour and conduct of my life, have
given me a ſuit of armour againſt theſe arrows. If, during this king's reign,
I have ever ſupported his government, and aſſiſted his meaſures, I have done
it without any other reward than the conſciouſneſs of doing what I thought
right. If I have ever oppoſed, I have done it upon the points themſelves,
without mixing in party or faction, and without any collateral views. I ho-
nor the king, and reſpect the people; but many things acquired by the favor
of either are, in my account, objects not worth ambition.
“ I wifh popularity; but it is that popularity which follows, not that which
is run after. It is that popularity which, ſooner or later, never fails to do
juſtice to the purſuit of noble ends by noble means. I will not do that which
my conſcience tells me is wrong upon this occaſion, to gain the huzzas of
thouſands, or the daily praiſe of all the papers which come from the preſse
I will not avoid doing what I think is right, though it ſhould draw on me
the whole artillery of libels; all that falſehood and malice can invent, or the
credulity of a deluded populace can fwallow, I can ſay, with a great ma-
giftrate, and upon an occaſion, and under circumſtances not unlike, “ Ego
boc animo femper fui, ut invidiam: virtute partam; gloriam, non invidiam pui
tarem."
“ The threats go farther than abuſe ; per fonal violence is denounced. I do
not believe it: it is not the genius of the worſt of men of this country, in the
worſt of times: but I have ſet my mind at reſt. The laſt end that can hap-
pen to any man never comes too ſoon, if he falls in ſupport of the law and
liberty of his country, for liberty is ſynonymous to law and government.
Such a ſhock, too, might be productive of public good; it might awake
the better part of the kingdom out of that lethargy, which ſeems to have be-
numbed
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99
numbed them, and bring the mad part back to their ſenſes, as men in-
toxicated are ſometimes ſtunned into fobriety *.
6 Once for all, let it be underſtood, “ that no endeavours of this kind
will influence any man who at preſent ſits here.” If they had any effect, it
would be contrary to their intereſt; leaning againſt their impreſſion muſt
give a bias the other way: but I hope, and I know, that I have fortitude
enough to reſiſt even that weakneſs. No libels, no threats, nothing that has
happened, nothing that can happen, will weigh a feather againſt allowing thre
defendant, upon this and every other queſtion, not only the whole advan-
tage he is intitled to from fubſtantial law and juſtice, but every benefit, from
the inoft critical nicety of form, which any other defendant could claim un-
der the like objection. The only effect I feel, is an anxiety to be able to ex-
plain the grounds upon which we proceed, ſo as to ſatisfy all mankind,
" that a flaw of form, given way to in this caſe, could not have been got over
in any other.”
- From the precedents we have ſeen, it appears that a ſeries of judgements
have required a technical form of words, in the deſcription of the county-court
at which at outlaw is exacted: that after the words, “at my county-court"
ſhould be added the name of the county ; and after the word “beld" ſhould
be added, “ for the county of,” (naming it); whereas, here the ſheriff ſays,
" at niy county-court,” without adding, “ of Middleſex ;” and he ſays,
"
held
at the houſe, &c.” without adding the words, " for the county of Middleſex,”
after the word 66 held.”
“ As to the firſt expreſſion, the caſes begin as far back as the 7th of James
the Firſt; as to the ſecond expreſſion, they begin about the 18th of Charles
the Second.
“ If we are compelled by authority to look upon either expreſſion as
technically neceſſary, it is ſufficient upon this occaſion, becauſe here both are
wanting.
6- If an outlawry be returned in this manor, “ ad com. meum tent. apud Ci-
ceftriam in comitatu Suffex, &c.” it is erroneous; becauſe it is not ſaid, “ ad
.
* A few ſentences of this ſpeech have been previouſly printed in pages 49,
50, and 51, of this work. The infertion of one of the moſt animated ſpeeches
that was ever delivered from the bench entire and unmutilated is the beſt
apology for the recapitulation of theſe few, yet important, ſentences.
com.
WILLIAM EARL OF MANSFIELD.
167
.-
1
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CC
66
com, meum Suſfex tentum, &c." Alder was outlawed for murder; and it was
moved for error, that the ſheriff returned, sad com. meum tentum apud. D:
in the county of Northumberland," and did not ſay, “ ad com. meum Nor .
thumbriæ tentum, &c. ;" and this was holden to be error, &c. Among the
errors for which, the reporter ſays, the outlawry was reverſed, the ſecond
is, not ſaid. " Suffolcia" after com. meum ;" and this, he ſays, had been a
common exception. Three copies have been left with us from the records,
and they are “ ad com. meuin Middleſex tent. &c.” agreeable to the judge-
ments. I have mentioned:
entioned. Winnington aſſigned error of outlawry; and one
faid to be allowed was, “ that the court is ſaid to be held in the county of
Hereford," and doth not ſay for the " county.” An outlawry was reverſedz.
becauſe it ſaid, “ ad com. meum, &c." and not ſaid, “ pro comitatu.” This
term ſeveral outlawries were reverſed for want of "
pro com, or
nec eorum
aliquis,” or per judicium coronatorum." One who was outlawed for the
murder of Sir Edmondbury Godfrey, now brought a writ of error in his hand
to the bar, praying, - that it might be read and allowed:’ the outlawry. was
reverſed. Among the errors aſſigned, one was, “ that it did not appear the
court was held pro comitatu ;" the other was clearly a fatal objection.. After
ftating the caſe, Sir Bartholomew Shower ſays :“ ſhe brings a writ. of error
to reverſe the outlawry;" and the error which t'aſſigned ore tenus, was the
uſual fault in not ſaying the county-court was held “ pro comitatu ;" the out-
lawry was reverſed. This is a very ſtrong authority to thew, that in the 3d
of William and Mary it was ſettled “ that the words pro comitatu were.
technically neceſſary. A record of an outlawry has been found, agreeable to
this form eſtabliſhed as neceſſary; and ſays, “ ad com. meum tent. pro com,
Middleſex ,. apud le Cheſhire-Cheeſe, in Gray's Inn Lane, in com. prædict.”
“ No caſe, report, or record, has been found ſince the 3d of queen Anne,
which can be of any uſe either way, upon the point, or any of the errors
aſſigned.
ss The authorities I have ſtated, ſtand to this day uncontradicted: they.
are many, and have prevailed, above a century: I.think they began againſt.
law and reaſon: the former authorities were otherwiſe'; the precedent. in.
Dalton is otherwiſe. There is no reaſon for requiring theſe words, there
is ſufficient certainty without them. It is impoſſible to doubt upon this re-
cord, but that the county-court, at which the defendant was exacted, was
the court of, and held for, the county of Middleſex : but this is a criminal
4.
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caſe highly penal. Outlaws have had the benefit of this exception for a
great length of time. Can we refuſe it to the defendant? We cannot ;
Though I am clearly of opinion, “ there was not a colour originally to hold
theſe words to be neceſſary. The objection to the blunder between the
peace “ of the now,” and “ the late king *,” after conviction, has not much
more ſolidity in it; yet the Houſe of Lords thought themſelves bound by
precedents ; and ſo muft we, had the flaw been diſcovered before judge-
ment. I cannot ſay,
I cannot ſay, “ that it does not appear upon this record, that the
court was of, and held for, the county of Middleſex;" becauſe I am clearly
of opinion, “ " that moſt manifeſtly it does.” But I can ſay, that a ſeries of
authorities, unimpeached and uncontradicted from the 7th of James the
Firſt as to one expreſſion, and from the 18th of Charles the Second as to
the other, have ſaid, “ ſuch words are formally neceſſary.” I can ſay, that
ſuch authority, though begun without law, reaſon, or common ſenſe, ought
to avail the defendant. It would be dangerous to ſay, that any exception al-
lowed ſo long ſhould now be over-ruled. The exception certainly would not
have prevailed, had it been oppoſed at firſt; but before the 3d of queen
Anne, there being no oppoſition after a writ of error was granted, the court
confidered the crown as conſenting to the reverſal upon any pretence how
Night ſoever : though that is not the caſe now, the neceſity of the form of
words muſt not be canvaſſed ; ſince it has been ſo often adjudged neceſſary,
the officers of the crown are in fault, for not attending to the form pre-
fcribed, and copying the precedent of King verſus Bell.
“ There can no miſchief or incertainty ariſe from this determination, be-
cauſe it being once known “ what form of words is neceffary,” it is eaſy to
follow it: but great ſuſpicion and incertainty muſt follow, from this court's
allowing a formal exception one day, and diſallowing it another.
“I beg to be underſtood, that I ground my opinion fingly upon the autho-
rity of the caſes adjudged, which, as they are on the favorable ſide, in a cri-
minal caſe, highly penal, I think ought not to be departed from: and there-
fore I am bound to ſay that, for want of theſe technical words, the outlawry
ought to be reverſed."
* Vide Lookup's cafe.
A rule
WILLIAM EARL OF MANSFIELD.
169
.
:
A rule was accordingly made (in each cauſe) “ that the out-
lawry be reverſed."
On the ſame 8th of June, 1768, rules were made, for the pro-
fecutor to ſhew cauſe (upon Tueſday then next) why the judge-
ment ſhould not be arreſted, and why the verdict ſhould not be
fet aſide.
And alſo a rule for now remanding the defendant to the cuſtody
of the marſhal, and for bringing him into court again on Tueſ-
day next.
Accordingly, on Tueſday the 14th of June, 1968, the two fol-
lowing points were argued very ſtrenuouſly and very copiouſly
on both ſides ; namely,
4 whether the informations could be ex-
hibited by the folicitor-general ; and whether the amendment
could be made by a ſingle judge out of court, in the manner be-
fore ſpecified." The former was objected to as a ground for ar-
reſting the judgement: the latter as a ground for a new tria).
Lord Mansfield, as to the motion in arreſt of judgement, ad-
hered to the opinion, he had before given, “ that the informa-
tions were well exhibited by the ſolicitor-general.”
As to the motion for a new trial on account of the amend-
ment, he declared his ſatisfaction at the motion's having been
made, and the matter ſo fully diſcuſſed and underſtood.
ters of praftice, he obſerved, are not to be known from books."
What paſſes at a judge's chambers is matter of tradition : it reſts
in memory. In caſes of this kind, judges muſt inquire of their
officers ; this is done in court every day, when the practice is
diſputed or doubted : it is in its nature official. The officers are
better acquainted with it than the judges. For his own part,
neither his education, nor his walk in life before he came into
this court, ever led him into any knowledge of the practice of
orders made by judges in the vacation. The making this order
for the amendment appeared to him to be right, and to be a
matter of courſe. It came to him as a matter of courſe, and re-
Z
commended
6. Mat-
170
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..
commended as ſuch from a gentleman of great experience, who
(he knew) would have as ſoon have cut off his right hand as
have deceived him, by repreſenting this as a thing of courſe when
it was not ſo. Accordingly he iſſued a ſummons " to ſhew cauſe
why the amendment ſhould not be made.” A fummons always
iſſues before a judge makes an order : a ſummons therefore went
out of courſe. Upon the attendance, his lordſhip aſked Mr.
Hughes (an old and experienced officer), the defendant's clerk
in court, “ whether there was any doubt but that this was amend-
able." He very rightly, and as was his duty, admitted that it
was amendable, and that he could not ſay otherwiſe." His .
lordſhip then took down a book, in which were entered ſome caſes
where informations were amended by a judge's order juſt before
trial ; and, after reading one or two, Mr. Philips, the defendant's
attorney, deſired him not to give himſelf any farther trouble.
Mr. Philips ſaid indeed, that he could not conſent to it, but he did
not object to it nor contradiet it ; nor was it objected to at the
trial. The counſel ſaw that there could be no objection made
to the order.
The principles of toleration were ably and fully diſcuſſed by lord
Mansfield, in a caſe reſpecting a Quaker's teſtimony on his
affirmation being admiſſible, in an action of debt on ſtatute
2 George II. C. 24. againſt bribery.
Lord Mansfield. " When this caſe was argued before, I was deſirous, for
many reaſons, that the queſtion ſhould be very fully conſidered, all the
caſes looked into, and folemnly argued again. I think it of the utmoſt
importance, that all the conſequences of the act of toleration ſhould be
purſued with the greateſt liberality, in eaſe of the ſcrupulous conſciences of
Diſſenters on the one hand; but ſo as thoſe ſcruples of conſcience ſhould
not be prejudicial to the reſt of the king's ſubjects : for, a ſcruple of conſci-
ence entitles a party to indulgence and protection, fo far as not to ſuffer for
it; but it is of conſequence that the ſubject ſhould not ſuffer too.
66 I have
WILLIAM EARL OF MANSFIELD.
171
I have been furniſhed with a great number of caſes, which have paſſed.
in this court, upon motions for attachments and other collateral matters,
wherein the affirmations of Quakers have been refuſed. But theſe feem all
to have ariſen from the haſty deciſion of a caſe of Hinton verſus Byron, 11
William III. (cited in Rex verſus Bell,) where, on a motion for an attach-
ment, the affidavit in ſupport of the application was by a quaker on his af-
firmation. Barely upon that, the attachment was objected to, and not a word
was ſaid in ſupport of it; but for a good reaſon : the moment the objection
was made, the Quaker took the oath, or was ready to have taken it, and ſo
the objection was not infifted on. And yet it is remarkable, that the me-
mory of theſe caſes has run through all the reft, introduced very great con-
fufion, and not one of the authorities ſeems to have been argued or confi-
dered upon the act of parliament itſelf: but the preſent is not a caſe of that
fort. This is the caſe of evidence offered at a trial in open court.
" This ſect ſprang up during the troubles, and was found at the Reſtora-
tion, with many other fects of Non-conformniſts equally ſcrupulous. At that
time, the law conſidered their ſcruples of conſcience as a crime ; and there-
fere they were not allowed to be ſet up as an excuſe or juſtification of another
offence. Therefore, when a quaker, who was ſubpænaed to give evidence,
abſented himſelf, and an attachment iſſued in conſequence of it, he could
not in excuſe fay, that his conſcience prevented him from giving evi-
dence; for, that was a crime. So in the caſe of interrogatories : the confe-
quence was, he was obliged to anſwer, or be committed to priſon ; and, if his
obſtinacy continued, he lay there for life.
- The experience of eight and twenty years, from the Reſtoration to the
time of the Revolution, ſhewed, that this obſtinacy was not merely a pretence
or colour given to right or wrong ; but that it was a ſcruple, and that the
fect was ready to go through all kind of ſuffering in the pertinacious adlie-
rence to it.
“ A more liberal way of thinking prevailed after the Revolution. The
principles of toleration were explained and juſtified, in conſequence of the
writings of Mr. Locke, lord Somers, and other great men of thoſe times : and
a ſtatute paffed, which, though not general, was very extenſive in the relief
it afforded to ſcrupulous conſciences. The ſtatute was 1 William and Mary,
C. 18, commonly called the toleration alt.
- In the tenth ſection of that ſtatute, the legiſlature takes notice, that
there was a fect called Quakers, who liad religious principles, in which they
differed
22
172
A
THE LIFE OF
t
differed from the eſtabliſhed doctrine of the church of England; and that
one of their religious ſcruples was the taking an oath according to the form
preſcribed by the law of England to Chriſtians; and therefore the act ena-
bles them to give aſſurance of their fidelity and allegiance to the ſtate by,
what I may call, another form of oath; becauſe it is appealing to the Deity
for the veracity of what they ſhall fay, and invoking his vengeance if they
utter what is falſe. This ſtatute was followed about ſix years after by ano-
ther ſtatute, 7 and 8 William III. c. 34. which allows a Quaker to affirm in
caſes where other perſons are required to take an oath. But, though the le-
giſlature had taken notice that they ought not to be puniſhed, ſo far as
barely their own opinion and ſcruples went, yet they did not extend the in-
dulgence ſo as to let it operate in prejudice to the rights of other perſons.
It is much that even at that time they were not permitted to give evidence
in this form in all caſes whatſoever. (I will ſtate the reafon of it by and
bye.) It has been truly ſaid, that ſince the caſe of Omichund verſus Barker,
and another caſe of great authority determined ſince, the nature of an ap-
peal to heaven, which ought to be received as a full fanction to evidence,
has been more fully underſtood. I therefore argued, and the judges in de-
livering their opinions agreed, that; upon the principles of the common
law, there is no particular form effential to an oath to be taken by a wit-
neſs: but, as the purpoſe of it is to bind his conſcience, every man of every
religion ſhould be bound by that form which he himſelf thinks will bind
his own conſcience moft. Therefore, though the Chriſtian oath was ſettled
in very early times, yet Jews before the 18th of Edward I. when they were
expelled the kingdom, were permitted to give evidence at common law ;
and were ſworn, not on the Evangeliſts, but on the Old Teſtament. No
diſtinction was taken between their ſwearing in a civil or criminal caſe.
" Since the caſe of Omichund verſus Barker, a queſtion was referred to all
the judges of England, whether a Turk ſhould be permitted to ſwear on the
Alcoran in a proſecution for a capital offence at the Old Bailey; and they were
all unanimouſly of opinion that he might.
“ It is objected, that the Quakers are the only people in the world who
ever refuſed to ſwear ; but in ſubſtance their affirmation is the ſame thing,
the form only is different; for an affirmation is a moſt folemn appeal and at-
teftation to God of the truth.
" There is a remarkable caſe reported in 2d Sid. VI. where Dr. Owen,
vice-chancellor of Oxford, in the year 1657, being called as a witneſs, re-
fuſed:
+
WILLIAM EARL OF MANSFIELD.
173
A
up
no
fuſed to kiſs the book, but deſired it might be opened before him, and he
lifted up his right hand. The jury prayed the opinion of the court, if they
ought to give the ſame credit to him as to a witneſs ſworn in the uſual man-
ner; and Glynn, chief juſtice, told them, that, in his opinion, he had
taken as ſtrong an oath as any other witneſs; “but,” ſaid he, “if I were to
be ſworn, I would kiſs the book.”
" There is a ſect in Scotland, who hold it to be idolatry at this day to kiſs
the book; but their own form of ſwearing is much more folemn. At Carliſe,
in the year 1745, upon a proſecution of ſome of the rebels, there was no
evidence but of this ſect, who would not kiſs the book; and a caſe was ſent
for advice, whether they ſhould be received as witneſſes. It was the
opinion of thoſe who were conſulted here, that the evidence might be
received; but it was not an object, and the proſecution went
farther.
“ With regard to the exception of the teſtimony of Quakers in criminal
proſecutions, it was occafioned by a ſtrong prejudice in the minds of the great
men who paſſed the ſtatute 7 and 8 William III. C. 34. I have looked into
the debates of thoſe days, and find, that every ſtep and clauſe of the act
was fought hard in the Houſe of Commons, and carried by ſmall majorities.
I know not whether the exception came in by way of amendment, but I
think it did. It was firſt a temporary act for feven years only. By ſtat. 13
Will. III. c. 4. it was continued for eleven years; and in the year 1713 there
was an application to the Houſe of Commons to make it perpetual; but it was
rejected. An application was afterwards made to the Houſe of Lords, who
paſſed the bill; and it went down to the Houſe of Commons, but they would
not even give it a firſt reading. The whole hiſtory of the act may be ſeen
in a very correct work, which never received the author's finiſhing hand; I
mean, Doctor Swift's Four laſt Years of Queen Anne; and it is obſervable,
that Doctor Swift commends the Houſe of Commons for the oppoſition they
gave to the act.
“On the acceſſion of the preſent family to the throne, it was made perpe-
tual by ſtat. 1 Geo. I. ſt. 2. c. 6. but the exception ſtill remained in criminal
caſes or criminal cauſes ; and it is extraordinary, that though many altera-
tions were made in it by ſtat. 8 George I. c. 6. yet no variation was made
as to this particular, which, in ſome inſtances, bears hard upon the Quakers,
and leaves them in a worſe condition than they were when this feet firſt
aroſe
174
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1
V
arofe ; for, before the ſtat. 7 and 8 Will. III. c. 34, if a Quaker were in,
dicted for a capital offence he might call Quakers as witneſſes in his defence,
and that without oath; for formerly the priſoner's witneſſes were not ſworn;
but now by ſtat. I Anne, It. 2, c. 9. fect. 3. all perſons examined in crimi-
nal caſes muſt be examined on oath, both for, and againſt the crown; there-
fore, if a Quaker be indicted, he cannot have the benefit of a Quaker's tef-
timony. It is not poſſible to fay why the exception was made ; but it is
made, and muſt be followed.
“ The effect, however, is, that it is an exception not to be extended by
equity. In remedial caſes, the conſtruction of ſtatutes is extended to other
caſes within the reaſon or rule of them ; but where it is a hard poſitive law,
and the reaſon is not very plainly to be ſeen, it ought not to be extended
by conſtruction.
6. We come then to this queſtion, Is the preſent a criminal cauſe? A Quaker
appears,
and offers himſelf as a witneſs ; can he give evidence without being
ſworn If it is a criminal cafe, he muſt be ſworn, or he cannot give
evidence.
“ Now there is no diſtinction better known tha re diſtinction between
civil and criminal law, or between criminal proſecutions and civil ačtions.
" Mr. Juſtice Blackſtore, and all modern and antient writers upon the
ſubject diſtinguiſh between them. Penal actions were never yet put under
the head of criminal law or crimes. The conſtruction of the ſtatute muſt be
extended by equity to make this a criminal cauſe. It is as much a civil
action as an action for money had and received. The legiſlature, when they
excepted to the evidence of Quakers in criminal cauſes, muſt be underſtood
to mean cauſes technically criminal; and a different conſtruction would not
only be injurious to Quakers, but prejudicial to the reſt of the king's ſub-
jects who may want their teſtimony. The caſe mentioned by Mr. Rooke, of
Sir Watkyn Williams Wynne verſus Middleton, is a very full authority,
and alone fufficient to warrant the diſtinction between civil and criminal
proceedings. In that caſe the queſtion was, whether the ſtatute 7 and 8
William III. c. 7. was penal or remedial ; the court held, “it was not a
penal ſtatute ; but, fuppofe it was to be conſidered as a penal ſtatute,
yet it was alſo a remedial law, and therefore the objection taken was
cured by ſtat. 16 and 17 Car. II. c. 8.” Now the words of exception in that
ſtatute, and alſo in ftat. 32 Henry VIII. c. 30. and in ſtatute 18 Eliz. C. 14,
penal actions and criminal proceedings;" but lord clief juſtice
Willes,
166
are
WILLIAM EARL OF MANSFIELD.
175
:
1
Willes, in delivering the ſolemn juagement of the court, fays, there is ano-
ther act, which would decide of itſelf, if conſidered in the light of a new
law, or as an interpretation of what was meant by penal actions in the ſtat,
16 and 17 Car. II. c. 8. This is the ſtatute of Feofails, 4 George II. c. 26.
for turning all law proceedings into Engliſh; and it has this remarkable con-
cluſion, “that every ſtatute of jeofails ſhall extend to all forms and proceedings in
Engliſh, except in criminal caſes, and that this clauſe ſhall be conſtrued in
the moſt beneficial manner." This is
This is very deciſive.
- No authority whatever has been mentioned on the other ſide, nor cafe
cited, where it has been held that a penal action is a criininal caſe; and per-
haps the point was never before doubted. The ſingle authority mentioned
againſt receiving the evidence of the Quaker in this caſe is an appeal of
murder ; but that is only a different mode of proſecuting an offender to
death. Inſtead of proceeding by indictment in the uſual way, it allows the
relation to carry on the proſecution for the purpoſe of attaining the fame end
which the king's proſecution would have had if the offender had been
convicted, viz. execution ; and therefore the writers on the law of England
claſs an appeal of murder in the books under the head of Criminal Caſes.
“With regard to caſes that have been cited as happening here, it is
aſtoniſhing that it ever ſhould have been doubted after the act of toleration,
and after the ſtat. 7 and 8 William III. C. 34. when an attachment was inoved
for againſt a Quaker, whether or not he ſhould be at liberty to give an an-
ſwer on his ſolemn affirmation, without being obliged to take an oath ; but
it is true, that it was doubted three times in lord Hardwicke's time, and
never reſolved; for the court avoided the queſtion by diſcharging the rule
upon ſome other matter. I conſider it, that as to his own anſwers, he is a
good witneſs; for, after the act of toleration, it was ſettled in the caſe of
Sir Thomas Harriſon, chamberlain of the city of London, verfus Evans,
purſuant to the opinion of all the judges, except one, that a diffenter from
the church of England is not guilty of a crime, barely by having that religious
opinion.
“Quakers therefore, ſince that act, are not, in the eye of the law, guilty
of a crime, by ſaying, that, ſincerely, they cannot ſwear according to our
form of oath. It is a fair excuſe for them, and a reaſon for diſpenſing with
the uſual form ; otherwiſe, by reaſon of their ſcruples, they would be im-
priſoned for life ; for you cannot take their anſwer upon interrogatories.
- Neither
.
176
Τ Η Ε LIFE OF
“Neither of the acts diſpenſe with a Quaker's giving evidence in a cri-
minal caſe; and an attachment will go upon refuſal: but he might now ſay,
the toleration acts indemnify me, and take notice of my fcruples.
“ It is remarkable, that the ſtatute 7 and 8 William III. c. 34. in the firſt
fection, gives Quakers a right to affirın in all caſes whatever where another
man may take an oath. This is general, and it is inſerted by way of excep-
tion only, that he ſhall not be admitted in a criminal cauſe. It is a pur-,
gation of himſelf, not giving evidence when he is to anſwer interroga-
tories.
" In the caſe of Rex verſus Turner, ón a motion to quaſh an appointment
of overſeers, the court ſaid, though the proſecution is in the king's name,
the end of it is a civil remedy.; and very properly allowed the Quaker's affir-
mation to be read.
" It is extraordinary that, upon all the caſes of attachment, not one was
argued upon the ground of its being a criminal caſe; and to be ſure the ex-
ception might as well hold on an affirmation taken to hold bail, becauſe it
deprives a man of his liberty. The very laſt attachment for non-performance
of an award was obtained in this court upon a Quaker's affirmation, and not
a word ſaid by way of objection to it. That was the caſe of Taylor ver-
fus Scott.
“We are not under the leaſt embarraſſment in the preſent caſe; for there
is not a ſingle authority to prove that, upon a penal action, a Quaker's evi-
dence may not be received upon his affirmation ; therefore I am of opinion,
that Mr. Juſtice Nares did perfectly right in admitting this Quaker to be a
witneſs upon his affirmation ; and, conſequently, that the rule for a new
trial ſhould be diſcharged.”
!
Another inſtance of lord Mansfield's ſenſe of toleration in mat-
ters of religion aroſe on the trial of Mr. James Webb, the 25th
of June, 1768, at Weſtminſter, at the ſuit of Payne, a carpenter,
and the common informer of that period of time.
Lord Mansfield. " Gentlemen of the jury, the material articles of this
trial may be reduced to two heads. Firſt, whether or not the defendant
is a prieſt ? and, ſecondly, whether or not. he has ſaid maſs ? for, I
look
upon the inafs as the only material charge in this trial; for that is
6
properly
WILLIAM EARL OF MANSFIELD.
177
properly the only act they allege which is peculiar to the Popiſh clergy. As
for thoſe things they have ſworn tlicy ſaw him do, they are nothing but what
might be done by any one; at moſt they are no proofs that he is a prieſt.
By the ſtatute of Queen Elizabeth 27, C. 2. it is high-treaſon for any man
who is proved to be a prieſt, to breathe in this kingdom. ' Another ſtatute
was made afterwards more mild, that only impoſed a fine and ſhort impri-
fönment; and this ſtatute of king William condemns any prieſt convicted
of exerciſing his functions to perpetual impriſonment; but in examining
thoſe ſtatutes we hare all agreed, that is, all the twelve judges have agreed,
that, before any man can be proceeded againſ, so as to convict him, it is firſt
neceſſary that he be proved to be a prieſt;" for, the ſtatute ſays, “ if any one
apprehends a Popiſh biſhop, prieſt, or jeſuit, and convict him of ſaying
maſs;" ſo that it is not ſufficient to convict a perſon on thoſe ſtatutes for ſay-
ing maſs, unleſs he is firſt proved to be a prieſt; therefore the iſſue of the
whole does not depend upon the ſaying maſs; wherefore I ſhall leave it to
your confideration, whether the evidence given of his ſaying maſs be a ſuf-
ficient argument to prove him to be a prieſt? You will be pleaſed to ob-
ferve, that there is but one evidence to prove it. Payne is the only man
wlio has ſworn that he ſaid maſs; and this Payne is a very illiterate man;
knows nothing of Latin, the language in which maſs is ſaid; and moreover,
he is an evidence in his own caufe ; becauſe, if Payne convicts him, he is
entitled to a hundred pounds reward. No one ought to be an evidence in
his own cauſe, though this is ſometimes allowed of, as in caſes of highway-
men and the like : however, it is a confideration that I need not take notice
of, as he is the only evidence ; for, ſeveral others were called, and not one
of them would venture to ſwear that they ſaw James Webb fay maſs. One
ſwore he ſaw him ſprinkle with holy-water; another, that he ſaid ſome
prayers to the Virgin Mary in Engliſh; another, that he heard him preach;
and being aſked what he preached about ? he ſaid, he taught the people,
that good works were neceſſary for ſalvation ; and he looked upon that not to
be the doctrine of the Proteſtant religion. Gentlemen, I will leave that to
your conſideration. In ſhort, none of thoſe evidences are any thing to the
caſe in queſtion. As for preaching, laymen often perform that; at leaſt a
deacon may do it in the Church of Rome. A deacon may even adminiſter
the facraments, and perform a great many of their ſervices; and we do not
know, but that he may elevate the hoſt : at leaſt, I do not know but he may;
and
Аа
178
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!
1
and I am perſuaded you know nothing about it. Now, if a deacon may
perform all thoſe things Payne ſaw the defendant do; they are no proofs
that he is a prieſt; therefore, I propoſe to give it up to the jury in this
light; and ſhall conſider the ſaying maſs as, a material cliarge, which
I ſhall leave to their conſideration, whether the evidence of his ſaying maſs-
ſufficiently proves him, firſt of all, to be a prieſt ? and, ſecondly, whether
it proves that he has faid maſs? You will be pleaſed to obſerve, that the
charge before
you
is quite different from that which lately happened in
Surrey ; tliere the defendant confeſſed himſelf to be a prieſt..
Sir Fletcher Norton. *My lord, we liad his own hand-writing, which
ſaid, I am a prieſt of ſuch an order.”
Lord Mansfield. 66. I did not know that: I'thoughit lie had only acknow-
ledged it. That was ſtill ſtronger againſt him; but, gentlemen, you will
be pleaſed to obſerve, that nothing of this appears againſt Mr. Webb. He :
has neither owned it, nor has any thing been produced to prove it, as there
are no proofs of his ordination, which muſt be before lie can be proved to:
be a prieſt: therefore, if it ſhould be proved that he has ſaid maſs, this will
not convict him of being a prieſt, as appears evidently from the example his
counſel has brought of a perſon who had no ordination at all, and yet.
faid maſs; but, as that perſon was not a prieſt, and therefore could not
be condemned by thoſe ſtatutes; ſo neither can the defendant, before there
are ſufficient proofs of his ordination.
“ This Payne, having got a hundred pounds ſince the conviction of that
man in Surrey, and being now in hopes of more money,., ſwears poſitively.
that the defendant ſaid maſs ;. and you ſee what pains he has taken, running:
here and there, ſometimes to the ambaſſadors to ſee how they performed
there, and then ſtealing in privately where he thought he might lay an in-
formation to get another hundred pounds.. Though according to the penal
ftatutes of queen Elizabeth, which are ſtill in force, it is high-treaſon for a:
prieſt to come into England; but the informer. is entitled to no reward.
There are three ſtatutes againft prieſts. The firſt is that of queen Elizabeth
272
C. 2. which makes it high-treaſon for them to come into England; but Payne
has not indicted him upon that ſtatute, becauſe, if he had been convicted,
tie would have had no reward.. There was another, made. afterwards, enact-
îng, that, if a prieſt was convicted of ſaying maſs, he was to forfeit two hundred
marks, and ſuffer. one year's impriſonment; but neither does Payne go upon
4
this
.
WILLIAM EARL OF MANSFIELD.
179
this ſtatute, for here there is no reward for the informer. The third was
made in king William's reign, 11 and 12, c. 4. ſoon after the Revolution,
This is the ſtatute Payne aims at, becauſe here is one hundred pounds the
county is to pay him, if he can convict the defendant.
“In the beginning of the Proteſtant religion, in order to eſtabliſh it, they
thought it in ſome manner neceſſary to enact theſe penal laws; for then the
pope had great power, and they thought they could not take too effectual
means to prevent him exerciſing any part of it in theſe dominions; and the
Jeſuits were then a very formidable body; and, apprehending great danger
from them, knowing their cloſe connections with the pope, the penal laws
were chiefly deſigned againſt them. But now the caſe is quite altered. The
pope has very little power, which ſeems to grow leſs and leſs daily. As for
the Jeſuits, they are now baniſhed out of moſt kingdoms in Europe, ſo that
there is now nothing to fear from either of theſe quarters, and conſequently
no neceſſity of enforcing theſe laws; neither was it ever the deſign of the
legiſlators to have theſe laws enforced by every common informer; but only
at proper times and ſeaſons, when they ſaw a neceſſity for it, and by proper
perſons appointed by themſelves for that purpoſe ; and yet, more properly
ſpeaking, they were never deſigned to be enforced at all, but were only
made in terrorem. Now, when you have conſidered all theſe things, and
reflected that there is only one evidence, only Payne, and that all he has
ſworn to is only ſaying maſs; I ſhall leave it to your conſideration, whether
the evidence given by this one only wirneſs be ſufficient to convict James
Webb, firſt, of his being a prieſt, and, ſecondly, of his exerciſing prieſtly
functions; that is, whether or not he has ſaid maſs ? for, I look upon that
as the only material thing he is charged with, and the only thing that comes
under your confideration ; but take notice, if you bring him in guilty, the
puniſhment is very ſevere, a dreadful puniſhment indeed! nothing leſs than
a perpetual impriſonment ! ſo that, if you have the leaſt doubt, you ought
by no means to bring him in guilty. Nothing but the cleareſt evidence ought
to condemn a man to ſuch a grievous puniſhment. Be pleaſed therefore to
conſult together, and when you have agreed bring in the verdict.”
i
Acquitted.
Аа 2
In
180
THE LIFE OF
-
In Eaſter Term, 1768*, the court of King's Bench had occa-
fion to conſider the nature of a bond which operated in damages.
in caſe the defendant married any other perſon than the plain.
tiff; and the diſcuſſion thereof by the chief juſtice cannot fait
to be intereſting to the curious reader, ſince it allows the
compe-
tency of the parties to meaſure the quantum of damages, al-
though it diſcountenances bonds and agreements which operate
in reſtraint of marriage.
" Lord Mansfield ſtated the deed particularly, and the declaration upon it..
The words are: “ I do hereby promiſe Mrs. Catharine Lowe that I will not
marry
with any perſon beſides herſelf ; if I do, I agree to pay the ſaid Caiba.
rine Lowe one thouſand pounds within three months, &c.” The defendant .
was fingle at the time; and ſo was the plaintiff.
" The ſecond count avers that the plaintiff was ready to marry him; and
that, after the making the deed, he did marry another woman, namely, one
Elizabeth Gardiner: yet he the defendant did not, when requeſted by the
plaintiff, pay the thouſand pounds which he had agreed to pay; and fo (though
often requeſted) hath not kept the covenant made between them as aforeſaid
fo that the breach is aſſigned in the not paying the thouſand pounds:
“. To this declaration, s non eft fa&tum” was pleaded by the defendant:
but the jury found' “ that it was his deed, and have given one thouſand
pounds damages; and by law, and in juſtice, he ought to pay the thouſand
pounds. Money is the meaſure of value; therefore what elſe could the jury-
find but this thouſand pounds (unleſs they had alſo given intereſt after the
three months)?
“6. This is not an action brought againſt him for not marrying her, or for
his marrying any one else : the non-payment of the one thouſand pounds is the
ground of this action-" that he did not, when requeſted, pay the one thouſand
pounds."
“ This money was payable upon a contingency; and the contingency has .
happened: therefore it ought to be paid.
1
4 Burr. 2228. Catharine Lowe againſt Newſham Peers.
« There
WILLIAM EARL OF MANSFIELD.
181
He may
i
“ There is a difference between covenants in general, and covenants ſe-
cured by a penalty or forfeiture. In the latter caſe the obligee has his election.
either bring an action of debt for the penalty, and recover the pe-
nalty (after which recovery of the penalty he cannot reſort to the cove-
nant, becauſe the penalty is to be a ſatisfaction for the whole); or, if he
does not chooſe to go for the penalty, he may. proceed upon the covenant,
and recover more or leſs than the penalty, toties quoties..
“ And upon this diſtinction they proceed in Courts of Equity. They will
relieve againſt a penaliy upon a compenſation : but, where the covenant is “ to
pay a particular liquidated ſum,” a Court of Equity can not make a new co-
venant for a man ; nor is there any room for compenſation or relief: as in leaſes
containing a covenant againſt ploughing up meadow; if the covenant be " not
to plough," and there be a penalty, a Court of Equity will relieve againſt the
penalty, or will even go farther than that (to preſerve the ſubſtance of the
agreement): but, if it is worded “ to pay five pounds an acre for every acre
ploughed up,” there is no alternative, no room for any relief againſt it, no com-
penſation ; it is the ſubſtance of the agreement. Here the ſpecified ſum of
one thouſand pounds is found in damages; it is the particular liquidated
ſum fixed and agreed upon between the parties, and is therefore, the proper
quantum of the damages.
- The fame reaſon anſwers to the motion for a new trial in the preſent
caſe:
*** As to the caſe mentioned by Mr. Mansfield, from 2 Ro. Abr. 703 *;
it is impoſſible to ſupport it; for, it cannot be that a man ſhould be obliged to
take leſs than the liquidated fum ; and the writ of error in that caſe was
plainly brought by the defendant yfi : beſides, the damages could never be taken
advantage of upon a writ of error. How could the quantum. of damages,
found by the jury, be the ſubje&t of a writ of error?
66 "Tis therefore clear, that where the preciſe fum is not the eſſence of the
agreement, the quantum of the damages may be aſſeſſed by the jury: but,
where the preciſe fum is fixed and agreed upon between the parties, that very
ſum is the aſcertained damage, and the jury are confined to it,
.
* Sir Baptiſt Hickes verſus Goates.
yhuo It was ſo, vide S. C. very clearly reported, in Cro. Jac.-390. Sir Bap-
tiſt. Hickes verfus Goates..
56 This
I 82
THE LIFE OF
}
:
- This brings the matter to the validity of the deed.
“ Whatever grounds exiſted at that time, that could avail the defendant
to avoid the deed, ſhould have come on his part, by a proper plea, if it
would in reality have been a good defence for him: and therefore, if any ſuch
ground had exiſted in this caſe, as did exiſt in Shepley's caſe *, or any other
ground not appearing upon the face of the deed, it ought to have been avoided
by a proper plea. Here we are upon the face of the deed: the plea is “ non
eft factum."
" It is objected, that this is an engagement in reſtraint of marriage.
- It is anſwered, that this conſtruction is directly contrary to the words
and intention of the deed, which amounts to a mutual agreement between
theſe two perſons "10 marry each other ;” and that the plaintiff's acceptance
of the deed proves that; and that what the jury have found is a ſufficient
reaſon to have it ſuppoſed that there was ſuch mutual agreement " to marry
each other.” That, however, this is, at the utmoſt, only a contract that he
would not marry any other woman ; and that, if he ſhould marry any other
woman, he would pay the plaintiff one thouſand pounds within three months
66 after he ſhould ſo marry any other woman;" but is very far from reſtrains
ing his marrying at all.
6* This is a point of very conſiderable importance. All theſe contracts
ought to be looked upon (as lord Hardwicke ſaid in the caſe of Woodhouſe
verfus Shepley) with a jealous eye ; even ſuppoſing them clear of any direct
fraud. In that caſe, lord Hardwicke did not proceed on any circumſtances
of particular actual fraud; but on public and general conſiderations; and
therefore he gave no coſts.
6. Theſe engagernents are liable to many miſchiefs, to many dangerous
conſequences.
so When perſons of different ſexes, attached to each other, and thus con-
tracting to marry each other, do not marry immediately, there is always
ſome reaſon or other againſt it, as diſapprobation of friends and relations,
inequality of circumſtances or the like. Both ſides ought to continue free:
otherwiſe ſuch contracts may be greatly abuſed; as by putting women's vir-
tue in danger by too much confidence in men; or by young men living with
2. Atkyns, 535. Woodhouſe verſus Shepley, et è contra.
women
WILLIAM EARL OF MANSFIELD.
183
i
women without being married : therefore theſe contracts are not to be ex-
tended by implication.
“ But here is not the leaſt ground to ſay “ that this man has engaged to
marry
this woman.” Much leſs does any thing appear of her engaging ta
marry him.
66
- There is a great difference between promiſing to marry. a particular per-
fon, and promiſing not to marry any one elſe. There is no colour for either of
theſe conſtructions that have been offered by the plaintiff's counſel.
“ This is only a reſtraint upon him againſt marrying any one elſe beſides
the plaintiff; not a reciprocal engagement to marry. each other," or any
thing like it.
66 This.penalty is ſet up againſt the defendant, after ten years have paſſed
without any intercourſe between the plaintiff and him.
66 Another reaſon why we ſhould not ſtrain in favor of this contract is,
becauſe, if there was really any mutual contract under fair and equal circum-
ftances, the plaintiff will ſtill be at liberty to bring her ačtion: for, a. void bond
can never ſtand in her way.
66 Therefore I think that what paſſed' at the the trial was perfectly right;
that the meaſure of damages was the thouſand pounds, and that this was
ſuch a contract as ought not to be carried into execution.
- The caſe of Baker and White * was not near ſo ſtrong as the preſent:
caſe : that was in reſtraint of Elizabeth Baker's marrying again. There is a
difference between a reſtraint of a firſt marriage, and a reſtraint of a ſecond
marriage: the plaintiff there was a widow when ſhe gave the bond; and
the tranſaction was, in effect, a mere wager, and nothing at all unfair in it:
and yet, in that caſe, the bond was decreed to be delivered up to be cancelled.”
To relieve the reader's attentiona little from the conſidera-
tion of legal determinations, the interpoſition of, or reſort to, a
few welt-authenticated incidents in life may not be diſpleaſing or
unprofitable to the juriſprudent in his reſearches in common life,
or in cultivating a proper knowledge of mankind.
* 2. Vern. 215, Baker. Et Ux. verſus White et alios, .
Lord
154
THE LIFE OF
1
Lord Mansfield was in the habits of intimacy with bifhop TRE-
VOR, who being much indiſpoſed, lord Mansfield called to ſee
frim; and while he was in the room with the biſhop's ſecretary
for a minute, the late Dr. Addington, his phyſician, was brought
in a chair by two able-bodied chairmen, who were proceeding
to carry him up ſtairs, pale and wan, and much debilitated, to
his patient. The bishop's ſecretary, fearing that his lord would
be low-fpirited at ſuch a ſcene, begged of lord Mansfield to
interpoſe and go up firſt. The quickneſs of the reply could not
fail to be treaſured up; it was, “ By no means ; let him go ; you
know nothing of human nature; the biſhop will be put in good
fpirits on feeing any one in a worſe condition than himſelf.”
Lord Mansfield was prophetic ; and, on Dr. Addington's taking
leave, the chairinen had no ſooner quitted the room with the
fick-fare than the biſhop humourouſly faid, “ I fear the crows
will ſoon have my excellent phyſician :" but in this he was miſta-
ken. Biſhop Trevor died in a few weeks. Dr. Addington lived
many years after he had been conſigned to the crows by his
princely patient the biſhop of Durham.
Another inſtance of his knowledge of mankind occurred when
the public opinion was much agitated, and every one formed his
own, as to the propriety of proſecuting Mr. Wilkes. In conver-
ſation with ſome friends, lord Mansfield ſaid, “I am decidedly
againſt the proſecution. His conſequence will die away
if
you
will let him alone ; but, by public notice of him, you will in-
creaſe his conſequence; the very thing he covets, and has in full
view."
1
The ſecurity and good government of the iſland of Jamaica
depending in a great degree on the due exerciſe of martial law,
or from other motives of ſound policy, the fact is incontro-
vertible, that in a military officer are often united the high officers
of governor-general and chancellor..
A general
WILLIAM EARL OF MANSFIELD.
185
A General Officer, who was very diffident of his ability to de-
cide properly, by intuition, as it were, in a Court of Equity, ap-
plied to lord Mansfield for advice, who anſwered: “ General,
you have a ſound head, and a good heart; take courage, and
you will do very well, in your new occupation, in a Court of
Equity. My advice is, to make your decrees as your head and
your heart dictate, to hear both ſides patiently, to decide with
firmneſs in the beſt manner you can; but be careful not to aſign
your reaſons, ſince your determinations may be ſubſtantially
right, although your reaſons may be very bad, or eſſentially
wrong.”
If common fame may be credited on this occaſion, it is ſaid,
that, as ſoon as the learned counſel had finiſhed their arguments,
the chancellor (in his military capacity) ordered the drums to
beat a few minutes, the muſic of which drove, as he was pleaſed
to ſay, a great deal of the law-arguments out of his head, and
enabled him the better, in the capacity of chancellor, to decide
with firmneſs, and form his own decree. Be that as it may,
the probability of the fact, as well as of the effect of a noiſe,
ſeems to acquire additional ſtrength by a modern anecdote.
A very dignified legal character in this country, diſtinguiſhed not
only for ſterling ſenſe, but alſo for effuſions of wit and plea-
fantry, when a famous caſe of appeal was determined in dom.
procerum againſt his decree, in ſtepping into his coach, ordered
his coachmen to drive faſt over the ſtones ; adding aſide to his
officers, “ the noiſe will drive all diſagreeable ideas out of my
head. The plan ſucceeded very well till an old woman, at the
croſſing into St. Martin's Lane, occaſioned the coachman hu-
manely to ſtop. The lord keeper, wondering at the cauſe, or-
dered his purſe-bearer to aſk the coachman why he drew up,
who replied, " I know my maſter would not have me kill the
poor old woman. She is almoſt under the horſes feet." The
lord keeper, finding ſhe was not any longer in danger, wittily re-
Въ
plied,
.
186
THE LIFE OF
19
plied, Suppoſe he had killed her-take her to the Houſe of
Lords, and they will undo all we had done.”
Again, lord Mansfield is ſaid to have given wholeſome and
pithy advice to a friend who was prevailed on to act in the
commiſſion of the peace : Keep your reaſons within your own
breaſt; be not too haſty in common cafes. of granting warrants,
before
you
have tried the effect of a ſummons ; and, above all,
be careful that good intentions are the governing principle, ſince
we generally judge of the intentions of a magiſtrate."
The late Mr. Madan, who, about the year 1756, changed his
bar-gown for a clerical one, having written a pamphlet, wherein
he'arraigned the miſtaken lenity of the judges in too frequently
reprieving capital offenders, was preſent, either as a magiſtrate
or one of the grand jury, at the aſſizes held at Eaſt Grinſtead in
Suſſex, fome years ago, which proved to be a maiden one.
On the ſheriff expreſſing his happineſs in preſenting the white
gloves to his lordſhip, as the emblem of purity, the chief juſtice
pleaſantly obſerved, “ Mr. Madan too will have a ſingular plea-
ſure on this occaſion, becauſe there is no condemned priſoner to
be reprieved."
Many other apophthegms ſtand upon record ; but the plea-
fantry of converſation loſes conſiderably by being narrated or
detailed ; and poſſibly eaſe and pleaſantry of this nature may
not be deemed to be within the line of duty of a biographer,
whoſe province is, to relate what he has heard and ſeen with
accuracy and fidelity, and to introduce effuſions of wit, for the
very uſeful purpoſe intended by nature, that of recommending
and adorning truth.
In a great commercial country, every ſpeech and determi-
nation of lord Mansfield's, tending to diſcriminate between legal
and illegal acts done by perſons ſubject to the bankrupt-laws,
when they were on the eve, as it were, of actual bankruptcy,
muſt be intereſting to all who have any concern in, or con-
nection with, the extenſive affairs of commerce, or the numerous
compli-
1
WILLIAM 1:87
VILL
EARL OF MANSFIELD.
N
complicated links which form a chain of ſtrong and ufeful
argris
ments in favor of bona fide creditors on the corre hand, and the
promotion of ſubſtantial juſtice on the other*.
Lord Mansfield. - This is an action of Trover, brought by the afſignees
«s
of Laroche and Willing, for a note of fix hundred pounds; and there is a
verdict for the plaintiff upon the following caſe.
The bankrupts, upon the 7th of November, 1766, indorſed the note
in queſtion, which is in the following words : “ London, Ioth of October,
1766, fix hundred pound. Two months after date we promiſe to pay to
Meffieurs Laroche and Willing, or order, fix hundred pounds, value re-
ceived ;” and is figned by Bryer and Everard. The note is indorſed by the
bankrupts to the defendant, to whom they were indebted 10 a larger amount ;
and was ſent to him in a letter directed to Trowbridge, which was carried to
the poft that morning, and was received on the roth, and could not be re-
ceived before.
“ The bankrupts have given Bryer and Everard two notes for three hun-
dred pounds each, which had not been diſcharged.
*" Laroche and Willing committed feveral acts of bankrupt on the 8th.
*** The note was ſo indorfed, and ſent to the defendant by the bankrupts,
in contemplation of their inſolvency and bankruptcy.
Upon this caſe the queſtion is, “ if the plaintiff ought to recover."
“ And it is material to obſerve a great deal that is not ſtated in it. Firſt,
there never was any courſe of dealing between the bankrupts and the defendant,
by way of indorfing or ſending notes to each other. The next thing is, that
the letter, in which the note was ſent, is ſuppreſſed by the defendant. It is
not found.“ that the note was indorſed in payment of any debt :" it is only
ſaid, “ he was a creditor to a larger amount.” It is not ſaid, whether it
was to be received at the riſque of Temple, or only as agent of the bankrupts :
but the letter, which was in the power of the defendant, was not produced ;
and fo the caſe ſtands without any appropriation of the note. The caſe is fi-
lent in theſe particulars, and very materially fo.
* Anderſon and others, aſſignees, againſt Temple, 4 Burr. 2238, Tri-
nity Term, 1768.
B b 2
66 It
188
THE LIFE OF
!
“ It is found, " that Bryer and Everard were creditors of the bankrupts,
to juſt the ſame amount, for two other notes they had taken in exchange;"
and " that thoſe two notes were not diſcharged.”
" The only queſtion I make is, “whether, under the circumſtances of
this caſe, the indorfing and ſending this note to the defendant is fraudulent,
and void as ſuch."
“And I chooſe to put the caſe upon that ground, becauſe the moſt de-
fireable object in all judicial determinations, eſpecially in mercantile ones,
(which ought to be determined upon natural juſtice, and not upon the
niceties of law,) is, to do ſubſtantial juſtice: and therefore I will avoid laying
the ſtreſs that might properly be laid upon the aſſent being neceſſary to com-
plete the contract, or the want of a delivery; the folid ground of which is,
that a contract ſhall be preſumed complete upon any diſtinction where the
juſtice of the caſe requires it, though there is no actual delivery, And it is
ſettled, “ that if a man ſends bills of exchange, or conſigns' a cargo; and
the perſon to whom he fends them has puid the value before ; though he did
not know of the ſending them at that time, the fending of them to the car-
rier will be ſufficient to prevent the aſignees from taking theſe goods back, in
caſe of an intervening act of bankruptcy: but if goods or bills of exchange
are ſent, and the conſideration has not been received, the court of Chancery
always interpoſes; and there are numbers of adjudged caſes of that kind, in
Chancery. In the caſe in Strange *, there is no doubt but the honeſty of
the caſe inclined the court to the judgement they gave: the reaſon given turns
upon a ſubtilty. The court of Chancery, in that caſe, would have inter-
poſed, and ſaid, '“ the aſſignees ſhould not have the goods without paying
the price.” I think the deterinination was right; and there was an actual
delivery to a perſon who became a truſtee: but a poſt-boy is not a truſtee.
I think the caſe was well ſupported upon other grounds than thoſe mentioned
in the book.
“I ground my opinion upon this, “ whether the indorſement be frau-
dulent." And as to that, it is certain that the ſtatutes of bankruptcy leave a
trader, to the moment of an act of bankruptcy committed, every power an
owner can have over his eſtate. The ſtatute ſays , fraudulent conveyances
* Atkins verfus Barwick, v. I. Sir J. Strange, 165.
of Vide Jac. I. c. 15. § 2.
ſhall
WILLIAM EARL OF MANSFIELD
189
:
Thall be an act of Bankruptcy;" other acts that are fraudulent are not made
acts of bankruptcy: but they are attended with the conſequences of fraud,
at law; which is, “ that fraud renders every aEt void.”
“ All acts to defraud creditors or the public laws of the land are void:
and if the nature of the act be a conveyance or grant, 'tis not only void, but an
act of bankruptcy.
" It has been determined “ that a conveyance by a trader, of all his ef-
fects, for the payınent of one or more bona fide creditors of the moſt me.
ritorious kind, though his effects do not amount to half what is due, is void;
becauſe it is not an act in the ordinary courſe of buſineſs; it is not ſuch an act
as a man could do, but it muſt be followed by an immediate act of bank-
ruptcy, and it is defeating the equality that is introduced by the ſtatutes
of bankruptcy, and the criminal (for the bankrupt is conſidered as a cri-
minal) is taking upon himſelf to prefer whom he pleaſes.” But fuppoſe he
leaves out a conſiderable part of his effects: if it appears to be only colourable,
that don't vary the caſe; it is fraudulent. Suppoſe a trader makes a con.
veyance
of all his eſtate for the payment of all his creditors except one,
(which was the caſe of Gayner * cited in Dematto's caſe), it is void. Sup-
poſe it was, “ to pay all his creditors rateably:" if there were no aſſent of his
creditors, or compoſition, it would be void : for, it would be reſcinding the
whole fyſtem of the bankrupt laws, and, inſtead of applying to the great
ſeal, he would chooſe his own truſtees. If this is a fraudulent act, it is
void."
" A general queſtion has been ſtarted, “ whether in any caſe, upon the
eve of a bankruptcy, a man may do that which in conſequence prefers a
particular creditor:” and that has been argued as a general queſtion.”
“ But that will depend upon the act, as, if a bankrupt, in courſe of pay-
ment, pays a creditor ; this is a fair advantage in the courſe of trade : or, if
a creditor threatens legal diligence, and there is no colluſion, or begins to
fue a debtor ; and he makes an aſſignment of part of his goods; it is a fair
tranſaction, and what a man might do without having any bankruptcy in
view. Suppoſe ſuch a caſe as Small and Oudley of ; there it was for the ad-
vantage of the creditors, and no fraud to them; and, if part of the tranſ-
* Vide
4
Burr. p. 477
.
mi Vide 4 Burr. p. 480.
action
190
THE LIFE OF
action were ſet aſide as fraudulent, the whole mult; but it never entered into
the mind of any judge to ſay, “ that a man in contemplation of an act of
bankruptcy could fit down and diſpoſe of all his effects to the wife of different
creditors ;" for that would be a fraud upon the acts of bankruptcy; but, if
done in a courſe of trade, and not fraudulent, it may be ſupported.
6. This was not done in a courſe of trade; for there never was any dealing
between the parties in fending indorſed notes. "There was no application made
by the defendant; and it was done with a view to poſitive iniquity; for.,
the bankrupts had received this note from Bryer and Everard for notes of the
ſame value ; and, knowing they ſhould become bankrupts the next day, to
defeat Bryer and Everard of ſetting off their notes againſt it, indarfe thuis
note to another perſon. And there was no way of doing juſtice to Bryer.and
Everard but by ſupporting the claim now made by the aſſignees ; ſo that
there was expreſs particular fraud at the time the fact was done. Next, it is
an act that is moſt certainly not complete as between the parties. The argu-
ment in the caſe of Scott * is very applicable to the preſent ; for, there was
a preference given to a bona fide creditor ; but he knew nothing of it. Sup-
poſe, in the courſe of trade, a bill is ſent to Conftantinople, and a bankruptcy
happens in England before it arrives, yet it may be good ; but here it is
done, becauſe they were reſolved to commit an act of bankruptcy."
The three other judges agreed, " that an affent is neceſſary to complete every
contract; that in the preſent caſe the defendant had his election till the 10th
of November ; that the act of bankruptcy being committed on the 8th, the
contract was incomplete; and that, upon the whole circumſtances taken to-
gether, the tranſaction was fraudulent and void.”
1769.
Few queſtions have been more frequently agitated, or more
elaborately argued with all the acumen and ingenuity of the bar,
than the queſtion which aroſe in the caſe of Perrin and Blake,
determined in Michaelmas term 1769, in the court of King's
Bench, viz. whether the deviſee in a will of Mr. Williams, the
----
* Vid. 4 Burr. p. 2174.
owner
WILLIAM EARL OF MANSFIELD. .
I'ST
!
owner of a plantation in Jamaica, took an eſtate for life, or an
eſtate-tail, under the following deviſe.
William Williams, by his will, after giving portions to his three
daughters, diſpoſes of his temporal eſtate in manner following:
“ It is my intent and meaning, that none of my children ſhould ſell or
diſpoſe of my eſtate for longer term than his life ; and to that intent I give, de-
viſe, and bequeath, all the reſt and reſidue of my eſtate to my ſon John Wil-
liams, and any fon my wife may be enſeinte of at my death, for and during
the term of their natural lives, the remainder to my brother-in-law Iſaac
Gale and his heirs, for and during the natural lives of my ſaid ſon John
Williams and the ſaid infant; the remainder to the heirs of the bodies of
my
fäid ſon John Williams and the ſaid infant, lawfully begotten, or to be
begotten, the remainder to my daughters for and during the term of their
natural lives, equally to be divided between them; the remainder to my
ſaid brother-in-law, Ifaac Gale; during the natural lives of my faid daugh-
ters reſpectively, the remainder to the heirs of the bodies of my faid daugh-
ters, equally to be divided between them : and I do declare it to be
my
will
and pleaſure, that the ſhare or part of any of my faid daughters that ſhall
happen to die fhall immediately veſt in the heirs of her body in manner
aforeſaid."
The deviſe firſt aſſumed a queſtionable ſhape in this country
upon an appeal, in nature of a writ of error, to the king in coun-
cil from a judgement of one of the courts in Jamaica.
Mr. Juſtice Blackſtone, in his firſt volume of Reports, 672.
ſtates the queſtion in Perrin and Blake as coming on upon a
ſpecial verdiet, whereas it came before the court of King's Bench,
on a demurrer to a replication.
The ſhort hiſtory of the proceedings in that caſe is this, accord-
ing to Mr. Douglas's accurate account of it in his Reports, 329.
“An ejectment was brought in Jamaica, where the eſtate lay, and a fpe-
cial verdict found, which came over for the opinion of the privy council
upon an appeal in the nature of a writ of error. Lord Mansfield, the only
law-lord who then attended the council, knowing the ſeveral opinions which
had
192
THE LIFE OF
had been taken, and conſidering the queſtion as a point of general tendency,
which might affect titles to real property in England, was unwilling that
judgement ſhould be given in the Cockpit merely on his opinion; and there-
fore propoſed, with the conſent and concurrence of the counſel on both
fides, that the appeal ſhould be adjourned, and in the mean time a ſolemn
opinion taken in Weſtminſter Hall. At firſt it was agreed to ſtate a caſe for
the opinion of the court of King's Bench, which might have been adjourned
on account of difficulty into the Exchequer Chamber ; but a caſe from the
king in his judicial.capacity being new, it was afterwards thought better that
the point ſhould be brought before the court upon the pleadings in a feigned
action of treſpaſs. Walker, ferjeant, ſettled the record for that purpoſe, on
which, to a declaration in treſpaſs (laid in Middleſex under a videlicet) the
defendant pleaded the will. The plaintiff replied the recovery, on the ground
that the ſon took an eſtate-tail ; and to this replication the defendant de-
murred."
.
In Eaſter and Trinity terms, gth of his preſent Majeſty, the
caſe was fully argued and re-argued, inſomuch as to induce the
lord chief juſtice to obſerve, that no diligence, no ingenuity, could
make any addition to the arguments.
In Michaelmas term in the ſame year, the court of King's
Bench gave their judgement, that the deviſee took, according to
the intention of the teſtator, only an eſtate for life ; in which
opinion the Chief, together with Mr. Juſtice Aſton and Mr. Juf-
tice Willes, concurred; but Mr. Juſtice Yates was of a contrary
opinion, and thought he took an eſtate-tail.
The ingenious and elaborate diſplay of law-learning by the
moſt eminent counſel employed in the cauſe, and the diſcrimina-
tions made by the judges in their ſeparate opinions, as well as
the forcible reaſons which occurred to each of them, are too
extenſive for a work of this nature. They contain no leſs than
forty pages in a modern collection, entitled, Colleftanea Juridica,
conſiſting of Tracts relative to the Law and Conſtitution of
England; to which the juriſprudent is reſpectfully referred,
ſince he alone is moſt likely to receive pleaſure from, and to
profit by, the reference.
It
I
WILLIAM EARL OF MANSFIELD.
193
In a caſe of ſo much doubt and difficulty as the preſent caſe,
the greateſt impartiality on the part of a biographer ſeems to be
eſſentially neceſſary; and, as a lover of truth, he humbly con-
ceives, that it would be an act of injuſtice to the memory of lord
Mansfield to omit ſtating any material fact, or leading feature;
and particularly that, after the firſt argument, his lordſhip was
not only very deſirous of the caſe being argued again, but alſo
that, after it had been folemnly determined by the court of
King's Bench, it ſhould be finally determined by the higheſt
authority.
Accordingly, after the firſt argument, the lord chief juſtice ob-
ſerved,
" It is very fit that this inatter ſhould be argued again, and all the caſes
reconſidered. There is a long ſtring of them in the books; but there is a
great diverſity of opinions. It ſhould be conſidered, that the different tem-
per of the times may have occafioned conſiderable difference; and the want
of due attention to this has occafioned the courts to run into many abſurd
diſtinctions, which had now better be forgotten. The chancellors have in
their decrees made many diſtinctions, particularly between the truſt and le-
gal eſtate; and indeed even in the truſts, between truſts executory and exe-
cuted : neither of theſe diſtinctions are founded in ſenſe. As to the firſt,
courts of equity are bounden by a general rule of law, as much as a court of
common law. As to the ſecond, all truſts are executory. It is abſolutely
neceſſary to the very exiſtence of a truſt, that it be executory, becauſe a
truſt executed is within the Statute of Uſes. This lord Hardwicke particu-
larly remarks in the caſe of Bagſhaw and Spencer : but upon the queſtions
that have ariſen in common law there have been many ſubtilties. In King
and Melling, lord Hale mentions a caſe wherein a perſon gives an eſtate to
another for life, & non aliter ; and upon this ground it was ruled an eſtate
for life. So there is Backhouſe and Wells, and many others. Theſe refine-
ments ſhould be all abſorbed by enquiring, on the preſent occaſion, whether the
teſtator's intention is the ſovereign guide; or whether the legal ſenſe of cer-
tain technical expreſſions is to controul that intention, when it appears that he
has unwarily and ignorantly uſed them ? That queſtion reſolved, will finally
Сс
decide
194
THE LIFE O
decide this matter; and I am therefore very defirous of having it argued and
deterinined by us, and after us by the higheſt authority."
The caſe ſtood over for judgement from May 2, 1769, to Feb.
8th, 1770. Hil. 10. Geo. III; when the judges delivered their opi-
nions feriatim.
The ſpeech of lord chief juſtice Mansfield.
“ The ſubject is exhauſted; and therefore I ſhall content myſelf with
giving my judgement without giving my reaſons, except it be juſt to remark.
upon a few general propoſitions, in which I entirely concur with my bro-
thers Aſton and Willes, whoſe arguments I read over before I came here.
“ I have ſerved many apprenticeſhips to this caſe. I argued Coulſon and
Coulſon. It was upon my argument that Mr. Verney made the caſe. I ar-
gued Bagſhaw and Spencer in every ſtage of it. I gave
three opinions upon
this very will; and I have determined Robinfon and Robinſon, and Long and
Laming ; and I think now at this inſtant juſt as I did above thirty years ago.
I always thought, and herein I agree with my brothers, that, as the - law
had allowed a free cominunication of intention to the teftator, it would be a
ftrange law to ſay, “Now you have communicated that intention ſo as every
body underſtands what you mean ; yet, becauſe you have uſed a certain ex-
preſſion of art, we will croſs your intention, and give your will a different
conſtruction; though what you mean to have done is perfectly legal, and
the only reaſon for contravening you is, becauſe you have not expreſſed
yourſelf as a lawyer.” My examination of this queſtion always has, and, I
believe, ever will convince me, that the legal intention, when clearly ex-
plained, is to controul the legal ſenſe of a term of art unwarily uſed by the
teftator.
" It is true, in Shelley's caſe, the rule is faid down as ftated to-day; but
that rule can never affect this queſtion. The real ſenſe and meaning of
that rule was this : “ if the teſtator gave an eſtate for life only to A. remainder
to the heirs of A's body.” If the court had faid A. is only tenant for life,
there would have been a contingent remainder to his iſſue, and then the
iſſue would have been liable to be barred by any forfeiture of the tenant for
life ; and if he made an eſtate pur auter vie, the remainder was gone: fo that
the beſt way of complying with the intention was to give him an eſtate tail,
by
WILLIAM EARL OF MANSFIELD:
195
+
by which means the iſſue were protected by the ſtatute de donis ; and if you
gave an eſtate only for life, as it could have no uſe in the world but to cheat
the lord of the feudal ſervices, the law very prudently ſaid, that in ſucli
caſes it ſhould be an eftate tail.
- This rule is clear law, but is not a general propoſition, ſubject to no
controul, as where a teftator's intention was manifeſtly on the other ſide, and
where the objections might be anſwered. I find no caſes in Brooke or Fitz-
herbert where theſe matters have coine in queſtion ; ſo that we are agreed
that the intention is to govern, and that Shelley's caſe does not conſtitute &
deciſive uncontroulable rule. This being ſettled, the queſtion is, Whether
in this caſe he has ſo explained his intention as to controul the technical ex-
preſſions ? and I agree with my brothers, that he has. We know that the
invention of truſtees to ſupport contingent remainders is uſually attributed
to Bridgman and Palmer fince the Reſtoration : then, knowing that theſe
eſtates might be limited in ſtrict ſettlement, it is ſufficient for the judges if
it appears that the teftator (however he has explained himſelf) had a ſtrict
ſettlement in his eye; ſo that, from what was ſaid, and from the whole of
the will, I concur that the intention of the teſtator was lawful, and ſuch as
may be now ſupported. If the intent be doubtful, if it be againſt law, the
legal import of the words muſt govern : but here there cannot be a doubt;
the heirs of John Williams's body are to take as purchaſers ſucceſſively.
“ In Shaw and Weigh, in Goodright and Pullyn, the whole went upon
the interpretation ; and lord Raymond ſays, “ Legal words ſhall not be broken
through for the ſake of ambiguous expreſſions.” The words here are not ſtrong
enough; and fo lord Hobart, who was contemporary with lord Coke, ſays,
“ No man ſhall ſhew me a caſe where heirs have taken as purchaſers without de-
claration plain." What is the natural inference from hence? That, if the
words be not ambiguous, or if the declaration be plain, the legal fenſe
of the words muſt yield.
- Robinfon and Robinſon was penned upon its own circumſtances, to
avoid ſhaking Backlioufe and Wells, and the other caſes; and what lord
chief baron Parker ſaid aroſe upon lord Hardwicke's doubts ; he wiſhed to
make it a ſtrict ſettlement in Launcelot Hicks, but was very much averſe to
Thaking any prior determinations : ſo that, upon theſe grounds, that the in-
tention muſt govern, that the intention is manifeſt, and that Shelley's caſe is
no univerſal propoſition, I muſt agree with my brothers Afton and Willes.
C C 2
But
196
THE LIFE OF
But upon theſe general obſervations I ſhould not content myſelf, if any caſe can
be found eſtabliſhing a contrary doctrine ; which leads me to ſay, that I
agree
with them, that there is no place which contravenes this general doctrine.
“ It is true, a great reliance has been made on Coulſon and Coulſon, and
every argument has been uſed for the ſupport of it; but this caſe is a very dif-
ferent one from Coulſon and Coulſon. That caſe may ſtand; and if ever
any future litigation ſhould ariſe upon a queſtion exactly ſimilar to that, I
ſhall ſubmit to Coulſon and Coulſon ; though, if I was ſitting in judgement
upon that very will, my determination ſhould have been different. It has
been ſaid, “ that this caſe is law was the unanimous opinion of the courts,
is a reſpectable authority, and always was deemed ſuch.” I cannot think fo.
Denniſon certainly did not agree with his brothers at firſt; but, however,
as he found them ſtrenuouſly againſt him, he was very willing to acquieſce
upon the certificate being ſigned.
“Lord Hardwicke, ſpeaking of Coulſon and Coulſon, confines it exactly
within its own bounds; and farther ſays, “ if that caſe be law," which was
a great deal for him to ſay; and ſo little ſatisfied with it was he, that the
laſt thing he did in Chancery was to ſend Sayer and Maſterman here ; and
he told me he did it to have Coulſon and Coulſon reconſidered. That caſe of
Sayer and Maſterman has been mentioned very often; it was a different cafe,
and has nothing to do with the preſent. But, admitting it to be law, and
admitting that it ſhall ever ſtand, I cannot ſee that it is applicable to the
preſent caſe, here are ſuch ſtrong marks of intention. But it was faid, that
the conveyancers had reſted upon Coulſon and Coulſon; and I know who
was meant: but it is impoſſible that where a man meant to give an eſtate
tail to another, he would give it him for life, remainder to truſtees to ſup-
port contingent remainders, remainder to the heirs of his body; it is trifling
with words to ſuppoſe it.
“ There is yet a fifth propoſition, in which I have a great deal of expe-
rience, and wherein I perfectly agree with my brothers; and it is, that there
is no found diſtinction between the deviſe of a legal eſtate, and of a truſt
and between an executory truſt and one executed : all truſts are executory ;
and in every ſhape that a will appears, the intention muſt govern.
“ I admit that there is a deviſe to John Williams for life, and in the fame
will a deviſe to the heirs of his body; and I agree that this is within the
letter of Shelley's caſe; and I do not doubt but there are, and have been
always,
;
WILLIAM EARL OF MANSFIELD.
197
always, lawyers of a different bent of genius, and different courſe of educa-
tion, who have choſen to adhere to the ſtrict letter of law; and they ill
ſay, that Shelley's caſe is uncontroulable authority, and they will make a
difference between truſts and legal eſtates, to the harraſſing of a ſuitor ; for,
great are the doubts frequently which is or is not a truſt; and the ſearching
for the repreſentative of the truſtee is attended with inconvenience, trouble,
and expence.
And if courts of law will adhere to the mere letter of law, the
great men who preſide in chancery will ever deviſe new ways to creep out of
the lines of law, and tamper with equity. This is certain, from the proceed-
ings on the ſtatute of uſes, which will render the lines of property very du-
bious and uncertain, by difference in judgement in law and equity, to the
much-dreaded introduction of uncertainty in landed property, and confuſion
in the titles of the owners.
“My opinion therefore is, that the intention being clear, beyond doubt,
to give an eſtate for life to John Williams, and an inheritance ſucceſſively to
be taken by the heirs of his body; and that his intention, being con-
ſiſtent with the rules of law, ſhould be complied with, in contradiction to the
legal ſenſe of the words uſed by the teſtator ſo unguardedly and ignorantly;
and as the defendant claims under ſuch ſettlement; I am of opinion that ſhe is
entitled to the judgement of the court; and as my brother Yates ſtands alone,
judgement muſt be ſo given for the defendant.”
It is fomewhat curious to obſerve, that a diverſity of opinion
in one of the four very eminent counſel who were conſulted
pre-
vious to the commencement of any ſuit on the legal operation of
the deviſe in this will, as will be thewn by and by, probably gave
riſe to this very long and expenſive ſuit; and it is equally proba-
ble, that the different opinion of one very upright and able judge
in the King's Bench out of four, encouraged the deviſee to bring
a writ of error in the Exchequer chamber, where he ultimately
prevailed.
The opinions of the twelve judges were, in the progreſs of this.
cauſe, thus divided :
>
In
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7
i
In ſupport of the intention of the teſtator, and an eſtate
for life.
Lord chief juſtice Mansfield.
Lord chief juſtice De Grey.
Mr. Juſtice Aſton.
Mr. Juſtice Willes.
Mr. Baron Smythe, afterwards
lord chief baron.
In favor of legal authorities and an eſtate-tail.
Lord chief baron Parker.
Mr. Juſtice Yates.
Baron Adams.
Mr. Juſtice Gould.
Mr. Baron Perrot.
Mr. Juſtice Blackſtone.
Mr. Juſtice Nares.
Under theſe circumſtances, and in this ſituation, the ſcales of
juſtice almoſt in equilibrio, we find a ſerious diſcuſſion and inveſ-
tigation of this point in a treatiſe or eſſay of great learning and
ingenuity, publiſhed about this period, by a young barriſter, who
is now no more.—De mortuis nil niſi juſtum!
The author muſt now intreat the reader to lend his patience,
while he endeavours to elucidate the conſiſtency and impartial
conduct of the earl of Mansfield in every ſtage of this important
caſe ; and to point out the different lights and ſhades in which it
appeared to ſome perſons of high rank in this country, who
deemed themſelves to be intereſted in the event of the cauſe.
William Williams died the 4th of February, 1723, leaving
iſſue one ſon named John Williams, and three daughters, Bo-
netta, Hannah, and Anne, and his wife not enſeinte.
The eſtate-tail which John Williams was ſuppoſed to have
taken under the will was endeavoured to be barred by a leaſe
and releaſe inrolled in the ſecretary's office, according to the lo-
cal law of the iſland of Jamaica.
The
1
1
V
WILLIAM EARL OF MANSFIELD.
190
!
A
The following preliminary ſtricture in Mr. Fearne's eſſay was
very proper to introduce all the other leading features of a cu.
rious legal portrait :
- The caſe of Perrin and Blake ſeemed to over-rule and ſuperſede all au-
thorities and precedents, and to aſſume the air of an authoritative repeal of
all former opinions and reſolutions upon the fame point *."
In diſcuſſing the diſtinctions taken by former judges t in the
caſe of Leonard and the Earl of Suſſex, by lord Talbot in Gle.
norchy and Bofville #, and by lord Hardwicke in Bagihaw and
Spencer ll, the concluſion drawn by Mr. Fearne is,
“ But, notwithſtanding all this, the ſtronger diſcernment of the court of
King's Bench, in the caſe of Perrin and Blake, told them, that thoſe di-
ſtinctions were too refined and nugatory, and ought now to be aboliſhed,
however they might have fuited the narrow ſtrictneſs of preceding times;
and though it is true, that theſe very diſtinctions had hitherto been received
and adopted even by a court of equity itſelf, it was nevertheleſs impoſſible
to reconcile them, in any degree, with that enlarged and more enlightened
ſtyle of doctrine, which, at this period, ſo eminently diſtinguiſhed the deci-
fions of the court of King's Bench. Nothing therefore remained, but to ex-
plode theſe old illiberal diſtinctions by fome folemn reſolution directly in
point; and accordingly the court of King's Bench adjudged, that J. Wil-
liams took only an eſtate for life under the deviſe in queſtion.
“ It is true, indeed, that the late judge Yates, a very reſpectable autho-
rity, who then filled a feat on that bench, oppoſed the deciſion with great
depth of learning and folidity of argument; but unfortunately his arguments
were drawn from ſources much too antiquated to meet with the attention,
..
!
* Vid. p. 111. Effay on Contingent Remainders.
op Vid. 2 Vern. 256.
Caſes temp. Talbot, 19.
| 2 Atk. 581, and 1 Vez. 149.
6
which
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which many people converſant in theſe matters are even ſtill ſo old-faſhioned
as to think they merited.'
So far Mr. Fearne proceeded in the firſt ſketch he attempted to
draw in the caſe of Perrin and Blake.
The diſcuſſion of the caſe of Coulſon and Coulſon opens
another battery, ſtill more formidable, which appears, as it were,
maſked, in the following note introduced by the Eſſayiſt :
“ The reader, moſt probably, will think the determination in the caſe of
Coulſon and Coulſon was ſufficient to have cloſed the queſtion, and removed
all ground for any farther diſputes upon the ſame point; and indeed both the
bench and the bar ſeem to have acquieſced in this opinion, till the judge-
ment of the court of King's Bench, in the caſe of Perrin and Blake, ripped
up the matter again, and opened new ſources of uncertainty, diſpute, and
litigation, by reducing the point to a diſcretionary conſtruction. That the
Bench in general conſidered the caſe of Coulſon and Coulſon as a ruling au-
thority appears, as well by the deciſion in the ſubſequent caſe of Sayer and
Maſterman as by the reverſal, in the court of Exchequer-chamber, of the
judgement given by the court of King's Bench in the caſe of Perrin and
Blake; and that the ſame opinion influenced the bar in general I am induced
to believe, as well from the ſentiments I have heard many eminent counſel
expreſs in regard to the matter as from the peruſal I have been favored with
of what I am told are the copies of the opinions of ſeveral of the greateſt
lawyers of the age, whoſe names it appears thoſe copies bear; and which
opinions, I am informed, as the copies themſelves indeed import, were given
upon the ſame deviſe, which was the ſubject of the queſtion in the caſe of
Perrin and Blake. All theſe opinions, if the copies which I have ſeen ſpeak
true, concur in giving an eſtate-tail to J. Williams. Among theſe copies I have
ſeen ſome of an opinion, which, if really given by the great perſon to whom
it is aſcribed, and whoſe name the copies bear, cannot be mentioned without
the utmoſt reſpect ;- for, it is ſaid to have been given by the preſent chief
juſtice of the court of King's Bench, he being then his majeſty's ſolicitor-
general; and therefore I dare not aſſume the liberty of communicating the
purport of this opinion to the reader in any more compendious terms than
the very words of the copies which I have ſeen, which are as follow : Upon
thie
...
WILLIAM EARL OF MANSFIELD
201
}
the authority of the late determination in Couffon and Coulſon, though I am
aware how far the expreſſion here differs from that caſe, I think the remain-
der to the heirs of the body of John will operate as a limitation to him in
tail, which, by a recovery properly ſuffered, he might dock.
10th April, 1747
W. MURRAY."
The earl of Mansfield, conceiving that the opinion which Mr.
Fearne had thus aſcribed to him under the ſignature of W. Mur-
ray was not the real opinion which he gave us as one of the four
counſel, who were conſulted on the occaſion, an opinion which
was deeply impreſſed and even rivetted on his mind, not only
from his having differed in opinion with the other very eminent
counſel viz. Mr. Attorney-general Rider, and Meſſrs. Filmer and
Booth, but alſo from the celebrity of the caſe, and the great at-
tention paid to it on its firſt appearance in a courſe of litigation
in this country, took occaſion in Eaſter term 1780, in the caſe of
Hodgſon and Ux. verſus Ambroſe*, to diſavow the opinion aſcribed
to him in the copy adduced by Mr. Fearne. On this occaſion it
may be proper to obſerve, that, in addition to the great reſpect
due to an open diſavowal in a public court by ſo diſcerning
and ſo great a judge, it did not ſeem to require a large portion of
credulity in the audience to induce them, unâ voce, to afcribé
their aſſent to the diſavowal; ſince, unleſs there was ſome dif-
ference in opinion among the four very eminent lawyers who, in
or about 1747, were conſulted on the deviſe in this will, was it
not contrary to general uſage, and bordering upon Quixotiſm, to
inſtitute a long and moſt expenſive ſuit? The plaintiff muſt be
deſperate indeed, and devoid of human prudence, who, upon
application to the greateſt lawyers in this kingdom, finds à per-
fect coincidence of opinion againſt him, and yet is weak and
1
* Vid. Douglas's Reports, 323.
Dd
perverſe
202
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-
.
perverſe enough to inſtitute a very expenſive ſuit. It is clear to
demonſtration, that the opinions of Sir Dudley Rider, then attor-
ney-general, and of Meſſrs. Filmer and Booth were, that Mr.
Williams took an eſtate tail. It remains to be diſcuſſed, whether
his majeſty's then ſolicitor-general, Mr. Murray, was not of à
different opinion ; the diſcuſſion of which cannot fail to diſcover
the deep receſs where truth lies, or, at the leaſt, whether the
weight of evidence in ſupport of a different opinion does not
greatly preponderate againſt the opinion aſcribed to him by Mr.
Fearne, who (in his addreſs to the earl of Mansfield, publiſhed
in the ſame year, 1780, under the title of “Copies of Opinions
áfcribed to eminent Counſel on the Will which was the ſubject
of the Caſe of Perrin and Blake before the Court of King's Bench
in 1769,") returns to the charge, and candidly acknowledges,
that he was poſſeſſed of ſome volumes of the late Mr. Booth's
opinions in manuſcript, which he did him the honor to preſent
him with, and among which was found the copy of the opinion
of the 10th of April, 1747.
The earl of Mansfield patiently travelled through fifteen pages of
this addreſs, and ſmiled at the following concluſion, “ I truſt, my
lord, no man is, or can be culpable, for not reckoning on a poſibility
that betrays all grounds of belief, and ſtarts into faet under the
veil of incredibility. Such an event may ſerve indeed, my lord,
as a caution to the world, againſt too implicit a credit to the
moſt authoritative of human aſſeverations."
However lamentable or humiliating it may be to humanity,
the fact is not to be controverted, that it is not always the lot of
fine parts, to be bleſt with a retentive memory. The late Mr.
Booth, in an advanced age, in a great degree deprived of the
bleſſing of fight, and at the diſtance of more than twenty years,
in a private converſation, or even in a private opinion, in the
year 1770, might have had no recollection of his being poſſeſſed of
another opinion of his majeſty's then ſolicitor-general, which mi-
litated
3
WILLIAM TRL OF MANSFIELD.
RL .
203.
$
1
litated againſt an eſtate tail, and which did not conſiſt of a mere
ipſe dixit, but wherein an authority was cited in ſupport of an eſtate
for life? In juſtice to the memory of this eminent and elevated
character, the author thinks himſelf under the neceſſity of avow-
ing, that the copy of a very different opinion from that men-
tioned by Mr. Fearne by way of anſwer to the firſt query on the
will of Mr. Williams was found and examined in the preſence
of ſeveral of Mr. Booth's executors, of whom the author has
the honor to be one, among his papers a few days after his de-
ceaſe, of which the following is a faithful copy :
cs I think John Williams under the will of his father was entitled only to
an eſtate for life, either in the real or perſonal eſtate. Whether he took a re-
mainder in tail in the real eſtate after a limitation to Gale, or whether the
heirs of his body were to take as purchaſers, may admit of great doubt; but
I incline to think the heirs of his body ought to be conſtrued words of pur-
chaſe ; and I ground by opinion upon the declaration with which the whole
deviſe is introduced, which ſeems as ſtrong as the words for life only in the
cafe of Backliouſe and Wells.
31 Jan. 1746.
W. MURRAY.
"
The reader is now in poſſeſſion of the true ground of lord
Mansfield's diſavowal of the former opinion ſuggeſted to have
been given by him. The lord chief juſtice on this occaſion ſeems
to have greater reaſon to complain of the treatment he received,
than the great and witty Eraſmus had to complain of the Fran-
ciſcan monk, who altered his opinion of a work of Eraſmus's on
account of a ſingle word. Eraſmus, in this work, derided the
ſuperſtition of thoſe who deſired to be buried in the frock of a
Franciſcan or a Dominican, and pleaſantly draws this concluſion:
If I had only jeſted upon the coat of Dominic, I ſhould have been
a good Chriſtian with the Franciſcan; but for one word I be-
came a heretic. To be ſerious. The judicious reader, who is
now in pofleſſion of the true ground of lord Mansfield's open diſ-
avowal of an erroneous opinion, may fairly aſk, what weight
D d 2
ought
1
204
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ought any private opinion to have in judicial determinations
what influence on the merits of the cafe? The anſwer is ob-
vious : A private opinion: ought to be as light as a feather in the
ſcale of juſtice. The author will now beg permiſſion briefly to
conſider the peculiar circumſtances, and the merits of the caſe.
The great outlines of intention appear to be ſtrongly marked:
by the teftator, who not only declares, that it was his intent and
meaning that none of his children thould fell or diſpoſe of his
eſtate for longer time than his life; and in order to effectuate
that intention, he deviſes: his eſtate, and points out one eſſential.
part of the duty of his truſtees, that of preſerving the contingent
remainders to his children, which he meant to create ; but, alas!
either from the circumſtance of his being inop's concilii, he has not
effectually deviſed the legal eſtate to the truſtees on the one hand;
or,
for the ſake of brevity on the other, inſtead of naming the
firſt and other ſons in. ſucceſſion, he has adopted the familiar
phraſe of heirs of the body of his ſon. William Williams, which
conciſe mode of expreſſion would, however, have been very ef-
fectual if the legal eſtate of freehold for the life of William
Williams had been deviſed to the truſtee, as in the caſe of Shap-
land and Smith in Brown's Reports, p. 75, or if by any accident
the legal eſtate of inheritance had been outſtanding in a truſtee;
but inaſmuch as the teſtator's intention had not the aid, of ei-
ther of theſe ſupporters, a long train of legal deciſions put in
their claim to make the evidence of intention inconſiſtent with,
and fubfervient to, the rules which govern deviſes of the legal
eſtate, ſo as to enlarge. the eſtate of the firſt taker to an eſtate
tail, by reaſon that every deviſee of the legal eſtate, who, in the
fame will, has an eſtate given to him for life, with a remainder
mediate or immediate, to the heirs of his body ſhall, according to
the rule in Shelley's. caſe be deemed to take an eſtate tail
mediate.when thereisthe intervention of truſtees in the will to preſerve:
i
;
con-.
WILLIAM EARL OF MANSFIELD..
205
contingent remainders ; and immediate, when the legal deviſe is
is deſtitute of fuch aido Since, unleſs contingent remainders to
the children of the deviſee, in ſucceſſion or otherwiſe, in a ſtrict
courſe of in-tail, are introduced, this receipt, as it has been em-
phatically called by a very able judge, the late lord chief juſtice
Wilmot, for keeping an eſtate in a family fails, and falls to the
ground, in regard that the law, in this inſtance, diſcovers and
determines, that there are not any contingent remainders to be
preſerved.
It is to be lamented, ſays the earl of Mansfield in another
caſe, that queſtions of this kind have occaſioned ſo much litiga-
tion and expence. The beſt way to ſettle them is to: reduce tho
matter; if poſible, to fome certain rules. . Of the ſame opinion
was the late lord chief juſtice Wilmot, in whom were found the
rare endowments of quick penetration and found judgement,
who, ſitting as one of the lords commiffioners of the great feal in
1.757, in the introductory fentence to a very.able opinion, ſeemed
to commiſerate, with great propriety, the difficulty of any coun-
fel giving an opinion to be depended upon in a caſe like the
preſent.
His words were; “The queſtion upon the conſtruction of
wills, whether a perfon takes an eſtate for life or in tail, has been
very much agitated, and yet remains ſo much undetermined, that
a counſel muſt ſtill find it very difficult to give an opinion that
may be depended upon; and I think it would have been of great
ſervice to the public, and tended to render property leſs. preca-
rious and uncertain; if the legal conſtruction of words in a
will had never been departed from; for, it muſt be much better
that every perſon's intent ſhould be fubfervient to the rules of
law, than the rules of law thould ſerve the party's intent.”'
But the difficulty of reducing them to certain rules ſtill recurs,
and has, according to the opinion of a late law lord, lord
Grantley,
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Grantley, whoſe extenſive knowlege and great practice made him
a very coinpetent judge, coſt the different ſuitors of the courts in
thirty years an immenſe ſum of money; and he farther added,
the nice diſtinctions which were neceſſary to be put into the
ſcale, to try wliether the weighty. arguments of intention in fa-
vor of an eſtate for life, or the more weighty deciſions in for-
mer caſes, ſhould preponderate in favor of an eſtate tail, were
generally founded on ſuch ſuperficial reaſoning, as to leave the
matter in a greater ſtate of uncertainty, in proportion to the
greater ſum ſpent in litigation. If Eraſmus had lived in thoſe
days, he would probably have altered his opinion, and preferred
the ſtudy of law to that of phyſic.
Adverfus inopiam certiſimum præfidium eſt ars medicandi, quæ lon-
giffimè abeft à neceſitate mendicandi-huic proxima eſt juriſpru-
dentia.'
The good policy, the great and noble fyftem, however, of ad-
hering to eſtabliſhed deciſions, which are ſtrengthened not only
by their numbers, but alſo by that very hand which weakens
and deſtroys all other fabrics, the hand of time, may be exempli-
fied in the following real inſtance, nearly concomitant with, and
coëval to, the caſe of Perrin and Blake.
The late Mr. Booth, who, being placed in the light of a con-
veyancer, was nulli ſecundus, previous to the judgement given
by the court of King's Bench in 1769, was profeſſionally called
upon to give his opinion on the title to an eſtate in Suſſex agreed
to be purchaſed by his grace the duke of Richmond. The fole
point in the title was, whether the vender, who conceived him-
ſelf to be tenant in tail, and who had ſuffered a recovery, had
good right fo to do? Mr. Booth, grounding his opinion on the
authority of Coulſon and Coulſon, encouraged his grace to com-
plete the purchaſe, which was in point of value not inconſidera-
ble, and in point of ſituation very deſirable.
Not
WILLIAM EARL OF MANSFIELD.
207
1
Home
>
Not only Mr. Booth, but other contemporary and eminent
conveyancers, particularly the late Mr. Filmer, had grounded
numerousopinions on titles, exceeding in value many hundred thou-
ſand pounds, on the authority of Coulſon and Coulſon, and other
legal decifions in favor of an eſtate tail. It will not nowbe matter
of wonder, that Mr. Booth ſhould be not only alarmed, but much
agitated, on his firſt hearing of the judgement of the court in Per-
rin and Blake. He deſired the honor of a conference with the
duke of Richmond, and told his grace, very pathetically, that he
had been the innocent cauſe of his purchaſing a conſiderable eſtate
with a bad title, according to a recent judgement, alluding to that
in Perrin and Blake. The nohle duke received the ſerious detail
of all the circumſtances of the caſe with firmneſs, and concluded
that he ſuppoſed the buſineſs would not reſt under a ſingle deter-
minațion ; that he ſhould watch the progreſs of it, and follow the
cauſe wherever it went. Pleaſed with this declaration, Mr. Booth
acquainted his grace, that, very fortunately, not only for him,
but alſo for his conveyancer, a ſon of the vender, ſince the pur-
chaſe was completed, had become of adult age; that this ſon and
heir apparent was, at all events, tenant in tail; and that it was
incumbent on the father, under the covenant for farther aſſurance
of title, to procure the ſon to corroborate and confirm the title.
This caſual circumſtance, though very pleaſing, did not abate
the diligence, nor prevent the regular attendance of his
grace
in
every court, and at every ſubſequent argument of the bar and
bench on the writ of error; and no perſon ſeemed to enjoy more
than his
grace
the honeſt zeal of lord chief baron Parker, who,
when he repeated the emphatical words “ſtare deciſis,” gave his
knuckles a ſevere rap on the table.
The reader will, it is to be hoped, readily pardon this little di-
greſſion, a digreſſion which to ſome may ſeem trivial, though
it is not a little intereſting to the author, who was preſent, and
who had the honor of being previouſly told by the lord chief ba-
TON
!
A
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guai ded
ron, that as he had the misfortune to differ in opinion with his
friend lord Mansfield, the author ſhould ſee how cool and
he ſhould be in delivering that opinion in the Exchequer-cham-
ber. After that declaration this involuntary and unexpected
ébullition of zeal, this firm and laudable attachment to former de
ciſions, was to him at leaſt peculiarly ſtriking. In like manner
Luther, differing in opinion with the great Eraſmus, told Me-
lancthon that he would be very calm and civil in his reply to
Eraſmus ; but, when'he fet'himſelf about it, he forgot theſe pro-
miſes, and his zeal and impetuofity were like two hard-mouthed
horſes which ran away with the chariot and the charioteer.
Fruftra retinacula tendens.
Fertur equis auriga, neque audit curris habenas.
Ep. 704. Jort. Vit. Eraſ.
3440
A writ of error was brought in the Houſe of Lords upon the
judgement of reverſal in the Exchequer Chamber; and after it
had depended for a conſiderable time, the parties compromiſed
the diſpute, and the plaintiff petitioned for leave to non-pros his
writ of error, which was granted, as appears from the following
entry in the Lords' Journals:
Upon reading the petition of Hannah Blake *, plaintiff, in a
writ of error depending in this houſe, and of William Perrin
and Thomas Vaughan, defendants in the ſaid writ of error, which
ſtands appointed for hearing, ſetting forth,
" That the matter in diſpute between the parties being now amicably.
compromized betwen them, the petitioners therefore humbly pray their lord-
ſhips, that the writ of error in this cauſe may be non-proſed, or withdrawn,
without coſts on either ſide. It is ordered that the ſaid petitioners do forth-
with enter a non-pros on the ſaid writ of error as defired, and the record be
* 7 May, 1777, Blake againſt Perrin and another.
remitted
WILLIAM EARL OF MANSFIELD.
209
remitted to the court of King's Bench, to the end execution may be had upon
the judgement given by that court, as if no ſuch writ of error had been
brought into this houſe."
In this important caſe, the earl of Mansfield ſeemed to be con-
ſcious that the peculiar circumſtances of it could alone forin an
exception, as it were, to the general rule already laid down.
He found one exception in the caſe of Backhouſe and Wells,
to which he has alluded. And admitting that in one ſingle in-
ſtance he was fallible, in grounding his opinion upon the de-
claration with which the whole deviſe was introduced, which
ſeemed to him as ſtrong as the words for life only in the caſe of
Backhouſe and Wells; permit me to aſk, did ever lord Mans-
field put in his claim to infallibility ? No! His quick diſcern-
ment, and deep penetration, led him to lament that legal de-
ciſions were ſometimes founded on erroneous opinions; but, while
he lamented the cauſe, his good ſenſe and great knowledge of
the great inconvenience, of overturning ſettled deciſions, theſe al-
moſt invariably kept him in ſuſpence, each attempting to draw
him aſide. In fupport of theſe obſervations, it would be inju-
rious, and inconcluſive, to introduce any words but lord Mans-
field's own, founded on twenty years experience, when he deli-
vered them in 1759, and ſtrengthened and confirmed by re-
peated declarations, too numerous to be named in the courſe of
thirty-two years, wherein he preſided as lord chief juſtice of the
court of King's Bench.
In the caſe of Burgeſs and Wheat, determined in 1750, lord
Keeper Henley was pleaſed to call to his aſſiſtance the lord chief
juſtice and the maſter of the rolls. Lord Mansfield, in delivering
his opinion on the origin, nature, and operation of truſts, ob-
ſerved : “ The law of truſts, in my apprehenſion, was not put
upon its true foundation till about the time that lord Notting-
ham had the great ſeals. By ſteadily purſuing, from plain prin-
Еe
ciples,
210
THE LIFE OF
ciples, truſts in all their conſequences, and by ſome aſſiſtance
from the legiſlature, an ample, rational, and uniforin ſyſtem of
law has ſince been raiſed. Truſts are made to anſwer the exi-
gencies of families ; to anſwer all purpoſes, without being liable
to any one fraud, injury, or miſchief, which the ſtatute of
Henry VIII. meant to avoid. Whether they are agreed in the
difference between the truſt and the legal eſtate or not, the truſt
is conſidered here as the eſtate to all intents and purpoſes ; and
every conſequence follows here which would have attended it at
law, except to a purchaſer for a valuable conſideration.”
This juſt exception of a purchaſer for a valuable conſideration,
led to the diſcuſſion of a point, which the ſofter ſex may fairly
deem an injurious, if not an unjuſt determination ; which has
ever excited wonder, how it could originally creep into the law;
viz. that the ſame ſpecies of eſtate, which gives a title to the
huſband to be tenant, by the curteſy of England, of the real eſtate
of the wife, ſhall exclude her from all title of dower out of the
real eſtate of the huſband. The author of theſe ſheets again en-
treats permiſſion to have recourſe to lord Mansfield's emphatical
words on this intereſting occaſion :
1
1
" It would be endleſs and very unneceſſary to enumerate the various con-
ſequences through which this principle, that a truſt in chancery is the
eſtate at law, has been purſued by adjudged caſes ſince 25 Charles II. They
will occur to every body, and they are very many. It has been, among
other things, decreed, that the huſband ſhould be tenant by curteſy. The
caſe of dower remains the only exception, in my poor apprehenſion, not upon
the principles of law or reaſon, but becauſe a long ſeries of determinations
and notions had miſled people into many purchaſes, and many ſettlements
would be to be ſet right. Radnor and Vandebendy was determined upon
that principle in the Houſe of Lords. The queſtion put to the counſel at the
bar was, how conveyancers adviſed purchaſers on the occaſion. Sir Joſeph
Jekyll’s argument, in Banks and Sutton, proves clearly that there ought to
have been dower of a truft: he ſtretched it to make a diſtinction : the
5
chancellor
WILLIAM EARL OF MANSFIELD.
RII
chancellor ſaid, it would ſhake all the ſettlements that had been made * How
it came to be ſettled at firſt is a different confideration : perhaps it might be
hard to find out a ſound reaſon for it. It is right to follow and adhere to
what has been eſtabliſhed. When any diſſatisfaction has been expreffed
concerning any of theſe determinations, it has been generally at denying
dower to the wife, and not at allowing an eſtate for life by the curteſy of
the huſband; and, if an alteration was to be introduced, the beſt way, in my
apprehenſion, to ſet the matter right would be, to allow the wife to have
dower of a truft-eſtate. Though I had a note of it, I cite this froin lord
Hardwicke's own notes ; in that cauſe, twenty years ago, I imbibed this
principle, which every thing, I have heard, read, or thought of fince, has
confirmed in my mind, that a truft, in the eye of the court, is an eſtate at
law, and governed by the ſames rules in general, as all real property is by
imitation.'
>
My dear Garrick," ſaid lord Mansfield jocofely to the Britiſh
Roſcius on ſome ſimilar occaſion, “ a judge on the bench is
now and then in your whimſical ſituation between Tragedy and
Comedy ; inclination drawing one way, and a long ſtring of
precedents the other.”
To conclude theſe obſervations with lord Mansfield's own
ideas, and to reſume the alluſion already made to the Britiſh
Roſcius, his lordſhip conſidered himſelf not only held, but even
tied down, by erroneous opinions in many important inſtances.
“ Arguments of convenience and inconvenience are always added his
lordſhip in Burgeſs and Wheat) to be taken into conſideration, when we are
not tied down by any erroneous opinions, which have prevailed ſo far in
practice, that property would be ſhaken by an alteration of them.”
Again, in Michaelmas Term, 1764, Trinder againſt Watſon
and another, 3d Burr. 1566. This was a writ of error returna-
ble in parliament brought upon a judgement in this court in an
CC
* Vide Calburn and Inglis. Caſes in King's Bench, 7th, 8th, 9th, and
I oth, Geo. II. while lord Hardwicke was chief juſtice.
Ee 2
action
? I 2
THE LIFE OF
action in debt upon a recognizance in error. And the plaintiff
in error in parliament not having entered into a recognizance,
purſuant to 3 J. I. c. 8. the defendant in the writ of error moved
for, and obtained, a rule for the ſaid plaintiff in error, to ſhew
cauſe, why the defendant in error ſhould not be at liberty to
ſue out execution, for want of ſuch recognizance.
Lord Mansfield obſerved, " That caſes which aroſe upon remedial laws,
he ſhould have thought, ought to have been liberally conſtrued. But, in the
caſe of Bidleſon and Whytel, it appeared, that the determination had been
otherwiſe ; and we muſt not depart from ſettled determinations. In that caſe
the weight of authorities prevailed.”
The court ordered it to ſtand over to enquire into the practice.
We find another ſtriking inſtance of his great attention to a
ſettled rule, although he lamented the grounds on which it had
been previouſly ſettled, in 4 Burr. 1960, on the doctrine of Re-
vocation of Wills by ſubſequent alteration of the eſtate.
“ Where a man (ſaid his lordſhip) feiſed of an eſtate makes his will,
and deviſes it, and afterwards conveys it entirely away, though he takes it
back by the ſame inſtrument, or by a declaration of uſes, it is a revocation,
becauſe, as it is ſaid in the books, he has parted with his whole eſtate.
• This rule being now eſtabliſhed muſt be adhered to, although it is not
founded upon truly rational grounds and principles, nor upon the intent,
but upon legal niceties and ſubtilty. However, as in the earl of Lincoln's
caſe it was ſo far eſtabliſhed that it ought to be obſerved in future if a
like caſe ſhould happen, we muſt not depart from it now, notwithſtanding
one would wiſh that no ſuch rule had ever been eſtabliſhed, and lament
that ſuch nice ſubtilties ſhould have been admitted as the ground of it.”
1
.
Lord Mansfield, when fair occaſion offered, would ſometimes
make the bench and the bar relax a little from their accuſtomed
gravity ; but the object to be attained by a moment's pleaſantry
was generally worthy of a great judge : numerous inſtances of
this kind might be adduced by the bar, who have not only en-
joyed
WILLIAM EARL OF MANSFIELD
213
joyed the wit, but have alſo felt the force of the keen arrows
which darted occaſionally through the court. To ſelect two or
three of this nature may relieve the juriſprudent a little, who
has already travelled over many pages of dry law.
To convert a capital offence to the lighter puniſhment of
tranſportation, where favorable circumſtances, in behalf of a
priſoner, made an impreſſion on every one preſent except the
proſecutor.--Here lord Mansfield recommended the jury to find
the value of a gold trinket, which the priſoner had ſtolen, under
forty ſhillings. The proſecutor imprudently and unfeelingly ex-
preſſed his ſurprize, “ Under forty ſhillings ! my lord ? Why the
faſhion alone coſt me more than double the fum.”—“ That may
be, friend,” replied the chief juſtice ; yet God forbid that we
ſhould hang a man for faſhion-fake !"
In his own court, he ſet too juſt a value on his time to per-
mit it to be improperly waſted by long interrogatories of counſel
in juſtifying bail, where the debt was barely of magnitude
enough to be brought into the Court of King's Bench. It fell
to the lot of the late ferjeant Davy to examine a Jew who came
to juſtify bail in a tawdry laced ſuit of cloaths before lord
Mansfield. The jocoſe and learned ſerjeant preſſed the Iſraelite
cloſe, to know whether he was worth the ſum he had ſworn to,
after all his debts were paid. The Jew anſwered repeatedly and
unequivocally in the affirmative : but, the debt which was the
object of the fuit being ſmall, and the ferjeant ſtill perſiſting in
his interrogatories, his lordſhip addreſſed the ferjeant unexpect-
edly with, “ For ſhame, brother Davy, how can you teaze the
poor gentleman ſo? Don't you ſee, that he would burn for double
the ſum !"
The overſeers of a pariſh having, with more attention to the
decreaſe of pariſh burthens than to the relief of the diſtreſſed,
cauſed Felix Mac Donald to be indicted for converting his houſe
into an hoſpital, for taking in and delivering lewd, idle, and diſor-
derly
l
214
THE LIFE OF
derly unmarried women, who after their delivery went away and
deſerted their children, whereby they became chargeable to the pa-
riſh. On a motion to quaſh the indictment, lord Mansfield took
notice, when it was firſt moved, of the narrow impolitic prin-
ciples upon which the proſecutors had proceeded, and expreſſed
his ſurprize how ſuch a bill could ever be found : but, this not
being ſufficient to prevent the counſel from fhewing cauſe, and
from labouring, in behalf of the pariſh, to get rid of the burthen
of the baſtard children, his lordſhip archly aſked, by what law it
was criminal to deliver a woman when ſhe was with-child ? No
ſufficient anſwer could be given. The indictment was quaſhed.
3
Burr. 1646.
In ſupport of the juriſdiction of his court, and to prove the
right of interference of the lord chief juſtice as the cuſtos morum
of the people (except in ſome particular caſes appropriated to,
and peculiarly within, the juriſdiction of the eccleſiaſtical court),
we may fairly adduce the caſe of the King againſt fir Francis
Blake Delaval and others. Lord Mansfield, in delivering the
opinion of the court, gives the cleareſt ſtate of the caſe, viz.
«« This is a 'motion for an information againſt the defendants for a conſpi-
racy, to put a young girl (an apprentice to one of them) into the hands of a
gentleman of rank and fortune, for the purpoſe of proſtitution ; contrary to
decency and morality, and without the knowledge or approbation of her fa-
ther who proſecutes them for it, who has now cleared himſelf of all impu-
tation, and appears to be an innocent and an injured man.
" The fact, uncontroverted, is this : A female infant, then about fifteen,
was bound apprentice, by her father, to the defendant Bates, a muſic-maſter,
the girl appearing to have natural talents for muſic. The father became
bound to the maſter in the penalty of two hundred pounds for his daughter's
performance of the covenants contained in the indenture. She became emi-
nent for vocal muſic, and thereby gained a great profit to Bates her maſter.
In April, 1763, Bates, her maſter, indirectly aſſigned ber to fir Franiis, as
much as it was in his power to aſſign her over; and this is done plainly and
manifeſtly for bad purpoſes. Bates at the ſame time releaſes the penalty to the
father,
WILLIAM EARL OF MANSFIELD.
215
father, but without the father's application, or even privity; and receives the
two hundred pounds from fir Francis by the hands of his tailor, who is em-
ployed to pay it to Bates : then ſhe is indentured to fir Francis Delayal, to
learn muſic of him; and ſhe covenants with him, both in the uſual covenants of
indentures of apprenticeſhip, and likewiſe in ſeveral others (as “ not to quit
even his apartments”). The girl goes and lives with fir Francis, notoriouſly,
as a kept miſtreſs. Thus ſhe has been played over by Bates into his hands,
for this immoral purpoſe. No man can avoid ſeeing all this, let him wink
ever ſo much.
" I remember a cauſe in the court of Chancery, wherein it appeared that a
man had formally aligned his wife over to another man ; and lord Hard-
wicke directed a profecution for that tranſaction, as being notoriouſly and
groſsly againſt public decency and good manners, and ſo is the preſent caſę.
" It is true that many offences of the incontinent kind fall properly under
the juriſdiction of the eccleſiaflical court, and are appropriated to it; but, if
you except thoſe appropriated caſes, this court is the cuſtos morum of the people,
and has the ſuperintendency of offences contra bonos mores: and upon this
ground both fir Charles Sedley and Curll, who had been guilty of offences
againſt good manners, were proſecuted here."
The legal diſcuſſion of the great queſtion reſpecting Literary
Property, and the ſpeeches of lord Mansfield in the caſe of Mil-
lar and Taylor, put in their fair claim to a great degree of at-
tention.
This caſe was a revival of the old and often-litigated queſtion
of Literary Property ; and it was the firſt determination which the
queſtion ever received in the court of King's Bench.
The juriſprudent will receive great benefit and pleaſure in at-
tentively peruſing the declaration and other proceedings in this
very intereſting cauſe, and particularly the ſpeeches * of the
puiſné judges of the court of King's Bench, who gave their opi-
nions feriatim, beginning with the junior judge according to
1
4. Burr. 2303.
uſage,
216
THE LIFE OF
66 The
uſage, and proceeding upward to tlae lord chief juſtice. The
author of theſe ſheets, however highly he may eſtimate and re-
vere the very learned and valuable ſpeeches of the other judges,
cannot, in a limited publication of this nature, conceive that he
will be warranted in offering more to the conſideration of the
reader than ſuch parts of the caſe as appear to be neceſſary, ei-
ther to give the ſubſtance of it, or to elucidate the labors, the
indefatigable attention, and the great preciſion of the judges, who
ſeparately diſcuſſed this important ſubject.
The ſhort ſubſtance of the caſe is no more than this. The de.
claration charges, that the plaintiff Millar was the true and
only proprietor of the copy of a book of poems, intituled,
Seaſons, by James Thomſon ;” and, whilft he was ſo proprietor
of the ſaid copy, cauſed two thouſand books of it to be printed
for ſale, at his own expence; and had a great number of the
ſaid two thouſand books remaining in his hands for ſale. That the
defendant Taylor publiſhed and expoſed to ſale ſeveral other books
of the like copy, and bearing the ſame title ; which latter books
had been injuriouſly printed by ſome perſon or perſons without
the licence or conſent of the plaintiff Millar ; the defendant know-
ing “ that they had been fo injuriouſly printed, without the
plaintiff's licence or conſent;" by means whereof the plaintiff
Millar was deprived of the profit and benefit of the ſaid copy and
book, and of the books printed at his expence as aforeſaid, and
then remaining in his hands unfold; and he lays his damages at
two hundred pounds. The defendant Taylor pleads “ not
guilty :" iſſue is thereupon joined ; and the jury find the ſpecial
verdict as above.
Mr. Juſtice Willes, in a ſpeech which fills nearly twenty-five.
pages
in folio in fir James Burrow's Report, gives an analyſis
of the leading caſes on this ſubject; without a knowledge of
which, ſeveral parts of lord Mansfield's ſpeeches will not be per-
fectly
WILLIAM EARL OF MANSFIELD.
21
66
fe&tly underſtood, in regard that his lordſhip frequently refers to
thoſe caſes as correctly ſtated by his brethren.
“ Few bills againſt pirates of books are ever brought to a hearing. If the
defendant acquieſces under the injunction, it is ſeldom worth the plaintiff's
while to proceed for an account, the ſale of the edition being ſtopped.
“ From the year 1709, to this day, there have not been more than two or
three ſuch caſes heard.
- The queſtion upon the common law-right, could not ariſe till twenty-
one years from the roth of April, 1710, for old copies : conſequently, the
fooneft it could arife was after the roth of April, 1731.
" On the oth of June, 1735, in the caſe of Eyre verſus Walker, fir Jo-
ſeph Jekyll granted an injunction to reſtrain the defendant from printing the
Whole Duty of Man ; the firſt aſſignment of which had been made in De-
cember, 1657 * ; and this was acquieſced under.
“ In the caſe of Motte verſus Falkner, 28th November, 1735, an in-
junction was granted for printing Pope's and Swift's Miſcellanies. Many of
thefe pieces ople were publiſhed 1701, 1702, 1708; and the counſel ſtrongly
preſſed the objection as to theſe pieces. Lord Talbot continued the injunc-
tion as to the whole; and it was acquieſced under. Yet Falkner, the Iriſh
bookſeller, was a man of ſubſtance; and the general point was of conſe-
quence to him : but he was not adviſed to litigate farther.
“ On the 27th of January, 1736, in the caſe of Walthoe verſus Walker,
and injunction was granted by fir Joſeph Jekyll, for printing Nelſon's Feſti-
vals and Faſts; though the bill ſets forth, that it was printed in the lifetime
of Robert Nelſon the author *; and that he died in January, 1714 9.
This too was acquieſced under.
* Dr. Hammond's Letter to the Bookſellers.
poh 1701, Conteſts and Diffentions between Athens and Rome. 1707,
Productions for 1708. 1708, Partridge’s death.
1708, Partridge's death. 1708, Sentiments of a
Church-of-England-Man. Vanbrugh's Houſe.
Baucis and Philemon.
1709, Project for Advancement of Religion, and Reformation of Manners.
* It was printed in 1703.
M Prout Preface.
1
66 On
218
THE LIFE OF
« On the 5th of May, 1739, in the caſe of Tonſon, et alios, verſus Walker
otherwiſe Stanton, before lord Hardwicke, an injunction was granted, to
reſtrain the defendants from printing Milton's Paradiſe Loſt. The plaintiffs
derived their title under an affignment of the copy from the author in 1667,
which was read. This injunction was alſo acquieſced under.
" In the caſe of Tonſon verfus Walker and Merchant, before lord Hard-
wicke, the bill was filed 26th November, 1751, ſuggeſting that the defend-
ants had advertiſed to print “ Milton's Paradiſe Loſt, with his Life by Fen-
ton; and the Notes of all the former Editions," of which Dr. Newton's
was the laſt. The bill ſuggeſts a pretence “ that the defendant had a right."
It derives a title to the poem, from the author's affignment in 1667. That
it was publiſhed about 1668; and it derives a title to his life by Fenton,
publiſhed in 1727, and to Bentley's Notes publiſhed in 1732, and Dr. New-
ton's in 1749. The anſwer came in the 12th of December, 1751 : wherein
the defendants inſiſted they had a right to print their work in numbers,
and to take in ſubſcriptions: and they put in their anſwer ſo expeditiouſly
as to prevent an injunction before anſwer.
“ It was intended to take the opinion of the court folemnly. The
ſearches and affidavits, which were thought neceſſary to be made, occa-
ſioned a delay; and no motion was made till near the end of April, 1752.
“ The injunction was moved for on Thurſday the 23d of April. Lord
Mansfield argued it. It was argued at large, upon the general ground of
copy-rights at common law.
Lord Chancellor directed it to proceed on the Saturday following; and to
be ſpoken to by one of a ſide. Afterwards it ſtood over, by order, till
Thurſday the zoth of April, when it was argued very diffuſively.
" The caſe could not poſſibly be varied at the hearing of the cauſe; the
notes of the laſt edition (Dr. Newton's) were within the act; but an in-
junction as to them only would have been of little avail; and it did not follow
that the defendants ſhould not be permitted to print what they had a right to
print, becauſe they had attempted to print more. For, in the caſes of Pope
verſus Curll, 5th of June, 1741, lord Hardwicke injoined tlie defendant
only from printing and ſelling the plaintiff's letters: there were a great many
more in the book which the defendant had printed, which the plaintiff had
no right to complain of.
“ If the inclination of lord Hardwicke's own opinion had not been
firongly with the plaintiff, he never would have granted an injunction to the
wholes
WILLIAM EARL OF MANSFIELD.
259
whole, and penned it in the disjunctive ; ſo that printing the poem, or the
life, or Bentley's notes, without a word of Dr. Newton's, would have been
a breach.
“ The injunction is not barely to the ſelling of that book, of which New-
ton's notes made a part, but to future printing.
“ He might have ſent it to law then, as well as at the hearing: but he
probably foreſaw he ſhould never hear of it again. Accordingly, the par-
ties underſtood his way of thinking; and the defendants acquieſced under
the injunction, and ſo have made it perpetual ; and would now be guilty of
a breach if they printed Milton.
"I do admit that (except from the order he made, which he ſaw and
penned,) he guarded againſt being thought finally to determine the
queſtion.
“ He cited the Stationers Company verſus Partridge as an authority for
an injunction where the right was doubtful. He obſerved upon Dr. New-
ton's notes, either tranſcribed or colourably abridged, being within the act :
and, according to a note I have of the caſe, he ſaid the ſtrongeſt autho-
rity is what the judges have ſaid in the caſe of Seymour (1 Mod.) and in the
argument of prerogative copies. Diſtinctions are taken upon the ground of
the king's property in Bibles, Latin Grammars, Common Prayer, and rear-
Books ; that they were made and publiſhed at the expence of the crown, ergo
the king's property. Theſe arguments being allowed to ſupport that right,
infer ſuch a property exiſting.'
“ That very point was then depending in this court, upon a caſe ſent by
himſelf, in Baſkett verſus the Univerſity of Cambridge.
" It would not have been agreeable to lord Hardwicke's great decency and
prudence to have ſpoken out deciſively upon a general legal right never de-
cided at law, and to have grounded his opinion upon an argument which
was then a queſtion ſub judice.
“ The queſtion upon Literary Property was brought before this court in
the caſe of Tonſon verfus Collins; and, after two arguments, was adjourned
into the Exchequer-chamber. I have been informed, from the beſt autho-
rity, that, fo far as the court had formed an opinion, they all inclined to the
plaintiff: but as they ſuſpected that the action was brought by colluſion ;
and a nominal defendant ſet up, in order to obtain a judgement which
might be a precedent againſt third perſons; and that therefore a judgement,
F f2
in
A
220
THE LIFE OF
}
in favor of the plaintiff, would certainly have been acquieſced in ; upon,
this ſuſpicion, and becauſe the court inclined to the plaintiff, it was ordered
to be heard before all the judges.
“ Afterwards, upon certain information received by the judges, “ that the
whole was a colluſion; that the defendant was nominal only; and the whole
expence paid by the plaintiff:” they refuſed to proceed in the cauſe ; though
it had been argued bona fide, and very ably by the counſel, who appeared
for the defendant. They thought this contrivance to get a colluſive judge-
nient was an attempt of a dangerous example, and therefore to be dif-
couraged.
“The pendency of this cauſe was publicly known : but the reaſon of its
diſcontinuance was not."
Mr. Juſtice Willes having, with great preciſion, induſtry, and
ability, gone over a large field of ſolid argument and elucidation
of the caſe, concluded with obſerving what he had avoided to
diſcuſs or enlarge upon to the following effect :
“ I have avoided a large field which exerciſed the ingenuity of the bar.
Metaphyſical reaſoning is too ſubtile; and arguments from the ſuppoſed
modes of acquiring the property of acorns, or a vacant piece of ground in
an imaginary ſtate of nature, are too remote. Beſides the compariſon does
not hald between things which have a phyſical exiſtence and incorporeal :
rights.
" It is certainly not agreeable to natural juſtice, that a ſtranger ſhould
reap the beneficial pecuniary produce of another man's work. Jure naturæ
æquum eft, neminem cum alterius detrimento et injuria fieri locupletiorem.
“ It is wiſe in any ſtate to encourage letters, and the painful reſearches of
learned men. The eaſieſt and moſt equal way of doing it is, by ſecuring
to them the property of their own works. Nobodò contributes, who is
not willing; and, though a good work may be run down, and a bad one
cried up, for a time, yet, ſooner or later, the reward will be in proportion
to the merit of the work.
" A writer's fame will not be the leſs, that he has bread, without being
under the neceſſity of proſtituting his pen to flattery or party to get
it.
" He
WILLIAM EARL OF MANSFIELD.
221
“ He who engages in a laborious work, (ſuch for inſtance as Johnſon's
Dictionary,) which may employ his whole life, will do it with more ſpirit,
if, beſides his own glory, he thinks it may be a proviſion for his family.
- I never heard any inconvenience objected to Literary Property, but that
of enhancing the price of books. This judgement will not be a precedent in
favour of a proprietor who is found by a jury to have enhanced the price.
Ani owner may find it worth while to give more correct and beautiful edi-
tions, which is an advantage to Literature : but his intereſt will prevent the
price from being unreaſonable. A ſmall profit, in a ſpeedy and numerous fale,
is much larger gain than a great profit upon each book in a ſlow ſale of a
leſs number. Upon theſe reaſons, I am of opinion, that there is a common
law right of an authorito his copy; that it is not taken away by the act of
the 8th of queen Anne ; and that judgement ought to be for the plaintiff.”.
A
i
1
.:
Mr. Juſtice Aſton next delivered his ſentiments, and began
with obſerving, that “this caſe has been ſo often, fo fully, and
ſo ablý.argued ; the citations from hiſtory, decrees, ordinances,
ſtatutes, and precedents in Weſtminſter-hall, have been ſtated ſo
accurately in point of time and ſubſtance; and the whole argu-
ments have been gone into ſo largely by my brother Willes ;
that I ſhall content myſelf with alluding to them, as now fully
and preciſely known, without ſtating any of them over again
(at large), which I ſhall have occaſion to take notice of.
The great queſtions which he propounded, and very fully and
ably diſcuſſed, were theſe :
A
“ I. Whether an author's property in his own literary compoſition is ſuch
as will intitle him, at common law, to the ſole right of multiplying the copies
of it:" or,
“ II. Suppoſing he has a property in the original compoſition :'" Whe-
ther the copy-right, y his own publication of the work, is neceſſarily given
away, and his conſent to ſuch gift implied by operation of law, manifeſtly
againſt his will, and contrary to the finding of the jury;" or,
“ III. Taken away from him, or reſtrained by the ſtatute of queen Anne.”
“ It has been ingeniouſly, metaphyſically, and fubtilly, argued on the
part of the defendant, “ that there is a want of property in the thing itſelf,
wherein
:
222
THE LIFE OF
wherein the plaintiff ſuppoſes himſelf to be injured; aad conſequently, if
there is no property or right, there is no injury or privation of right."
“ The plaintiff's ſuppoſed property has been treated as quite ideal and
imaginary; not reducible to the comprehenſion of men's underſtanding ; not
an object of law, nor capable of protection.
“ As to all the objections to this property or right being allowed or protected
by the common law, reſt entirely upon arguments which endeavour to Thew,
" that ſuch allowance or protection is contrary to right reaſon, and natural
principles,” the only grounds of common law originally applicable to this
queſtion :- I think fit (however abſtract they may ſeem) to conſider certain
great truths and ſound propoſitions, which we, as rational beings, we, to whoin
reaſon is the great law of our nature, are laid under the obligation of being
governed by ; and which are moſt ably illuſtrated by the learned author of the
Religion of Nature delineated, that is to ſay:
6. That moral good and evil are coincident with right and wrong ;" for, that
cannot be good which is wrong ; nor that evil which is right *.
6. That
right reaſon is the great law of nature, by which our acts are to be adjudged ;
and according to their conformity to this, or deflection from it, are to be
called lawful or unlawful, good or bad y." "That whatever will bear to be
tried by that reaſon is right; and that which is condemned by it is wrong *
" That to act according to right reaſon, and to act according to trutb, are
in effect the ſame thing S.”
" Then (ſpeaking of truths reſpecting mankind in general, antecedent to
all human law) “ That man being capable of diſtinct properties in things
which he only, of all mankind, can call his,” he ſays,
" The labour of B cannot be the labour of C, becauſe it is the applica-
tion of the organs and powers of B, not of C, to the effecting of ſome-
thing; and therefore the labour is as much B's as the limbs and faculties made
uſe of are bis.”
" Again, the effect or produce of the labour of B is not the effect of the la-
bour of C; and therefore this effekt or produce is B's, not C's. It is as much
B’s, as the labour was his, not C's; becauſe, what the labour of B cauſes, or
* Page 21. 9 1.
Ibid,
* Page 23.
| Page 23. § 5. Page 126.
|| Page 127. 6.
produces,
1
porno
223
WILLIAM EARL OF MANSFIELD.
!
produces, B produces by his labour ; or it is the product of bis labour ;
therefore it is his, not C's, or any others. And if C ſhould pretend to any
property in that, which B only can truly call his, he would act contrary to
truth *.
“ That to deprive a man of the fruit of his own cares and ſweat ; and to
enter upon it, (he is here ſpeaking of the cultivation of lands,) as if it was
the effect of the intruder's pains and travel, is a moſt manifeſt violation of
truth: it is aſſerting, in fact, that to be his which cannot be his up
« There is then ſuch a kind of property founded in nature and truth; or, there
are things which one man only can, conſiſtently with nature and truth, call
his *; as propoſition 2. 8. 9.
demonſtrate.
" And thoſe things, which only one man can truly and properly call his,
muſt remain his, till he agrees to part with them by compaet or donation ; be-
cauſe no man can deprive him of them without his approbation ; but the de-
priver muſt uſe them as his, when they are not his, in contradiction to truth.
For, “ to have the property” of any thing, and “ to have the ſole right of
uſing and diſpoſing of it,” are the ſame thing; they are equipollent ex-
preffions .
Property, without the uſe, is an emply found. He who uſes or diſpoſes of any
thing, does by that declare it to be bis ; becauſe this is all that he, whoſe it
really is, can do. Borrowing and hiring afford no objection to this : for he
uſes what is his own for the time allowed; and his doing ſo is only in one of
theſe ways, in which the true proprietary diſpoſes of it ||-
From this great theory of property many definitions aroſe, much practice
was elucidated, and many juſt concluſions were drawn, which cannot with
propriety be introduced here. The concluſion however of Mr. Juſtice
Afton's ſpeech is too animated to be paſſed over in ſilence. After an enu-
meration and judicious examen of all the caſes on the ſubject, he proceeded :
“ Theſe caſes prove “ that the court of Chancery granted injunctions to
protect the right, on ſuppoſition of its being a legal one."
* Pages 127, 128.
mi Prop. 8. Š 6. page 134.
Prop. 10. § 6 page 136.
Page 136.
# Page 137-
** And
224
THE LIFE OF
.
1
:
66 And no injunction was ever refuſed in Chancery, upon the common-law
right, till a doubt was ſuppoſed to have ariſen in this court, from the caſe of
Tonſon verſus Collins (which was then depending) having been twice argued,
and then adjourned to be argued before all the judges : the reaſon of which
has often been declared to be, not from any doubts or difference of opinion,
but merely from a ſuppoſition of colluſion; and which colluſion was after-
wards the cauſe why it was neither argued nor determined.
“ Upon the whole, I conclude, that, upon every principle of reaſon, natural
juſtice, morality, and common-law ; upon the evidence of the long-received
opinion of this property, appearing in antient proceedings, and in law-
caſes; upon the clear ſenſe of the legiſlature; and the opinions of the
greateſt lawyers of their time, in the court of Chancery, ſince that ſtatute;
the right of an author 10 the copy of his works appears to be well founded ;
and that the plaintiff therefore is, upon this ſpecial verdict, intitled to his
judgement ; and I hope the learned and induſtrious will be permitted, from
henceforth, not only to reap the fame, but the profits, of their ingenious la-
bours, without interruption, to the honour and advantage of themſelves and
their families.
.
Mr. Juſtice rates was of a different opinion from the two
judges who'had ſpoken before him, he ſaid,
" He ſhould ever be extremely diffident of any judgement of his own,
when he had the misfortune to diffent from either of his brethren. And,
after the very learned and ingenious arguments which each of them had now
delivered, he could not but feel, with particular ſenſibility, the unequal
taſk he had now before him.
“ He regretted too, that, in ſo liberal a queſtion, ſo important to the lite-
rary world, and a queſtion of ſo much expectation, there ſhould be any dif-
agreement upon this bench. But he obſerved, that, if he ſhould happen to
ſtand quite alone in the opinion he had formed, his ſentiments would no way
affect the authority of the deciſion.
" Whatever his opinion, however, might be ; ſitting in his judicial capa-
city, he thought himſelf bound, both in this and in every cauſe, to declare it
frankly and firmly:
" After
WILLIAM EARL OF MANSFIELD
225
1
66 After this very decent preface, he ſpoke near three hours, in ſupport of
his opinion, with great ability, learning, and preciſion. The anſwer given
by him, to an ingenious obſervation of Mr. juſtice Blackſtone, is preſented
to the reader as one of the many accurate diſcriminations made in the courſe
of the argument.
“ There is one ground more upon which the plantiff's counſel centended
this claim of right; and which, at firſt ſight, appears the moſt ſpecious of
all. They endeavoured to enforce this copy-right of authors as a moral and
equitable right; and to fupport it by arguments calculated to prove that it
is fo.
- For this purpoſe Mr. Blackſtone obſerved, that the labours of the mind,
and productions of the brain, are as juſtly intitled to the benefit and emolu-
ments that may ariſe from them as the labours of the body are ; and that
literary compoſitions, being the produce of the author's own labour and abili-
ties, he has a moral and equitable right to the profits they produce ; and is
fairly intitled to theſe profits for ever; and that, if others uſurp or encroach
upon theſe moral rights, they are evidently guilty of injuſtice, in pirating
the profits of another's labour, and reaping where they have not ſown.
" This argument has indeed a captivating ſound; it ſtrikes the paſſions
with a winning addreſs: but it will be found as fallacious as the reſt, and
equally begs the very queſtion in diſpute. For, the injuſtice it ſuggeſts
depends upon the extent and duration of the author's property ; as it is the
violation of that property that muſt alone conſtitute the injury. If therefore
his property be determined, no injury is done him. The queſtion, therefore,
is whether all the property of the author did not ceaſe, and the work become
open, by his own act of publication.” In that caſe, the defendant cannot be
charged with any injuſtice; but has merely exerciſed a legal right. And,
however we may lean to literary merit, the property of authors muſt be ſub-
ject to the ſame rule of law as the property of other men is governed by. It
is, therefore, as capable of being laid open as any other invention of any
other man: and if, by publication, it becomes common, (as I ſhall obſerve
by and by,) can the author complain of the loſs ? Can he complain of loſing
the bird he has himſelf voluntarily turned out ?
“ But it is inſiſted, “That it conſcientiouſly belongs to the author him-
ſelf and his aſſigns for ever, as being the fruits of his own labour."
Gg
6. That
226
THE LIFE OF
“ That every man is intitled to the "fruits of his own labour" I readily
admit. But he can only be entitled to this, according to the fixed conſtitu-
tion of things; and ſubject to the general rights of mankind, and the general
rules of property. He muſt not expect that theſe fruits ſhall be eternal; that
he is to monopolize them to infinity; that every vegetation and increaſe
ſhall be confined to himſelf alone, and never revert to the common maſs. In
that caſe, the injuſtice would lie on the ſide of the monopoliſt, who would
thus exclude all the reſt of mankind from enjoying their natural and ſocial
rights.
The labours of an author have certainly a right to a reward: but it does
not from thence follow, that this reward is to be infinite and never to have
an end. Here, it is aſcertained. The legiſlature have fixed the extent of his
property, they have allowed him twenty-eight years ; and have expreſsly
declared he ſhall have it no longer. Have the legiſlature been guilty of in-
juſtice? Little cauſe has an author to complain of injuſtice after he has
enjoyed a monopoly for twenty-eight years, and the manuſcript ſtill remains
his own property. It has happened in the preſent caſe, that the author and
his aſſignee together have enjoyed the emolument of this work between
thirty and forty years: and the plantiff ſtill has the manuſcript.
- If a ſtranger had taken his manuſcript from him, or had furreptitiouſly
obtained a copy of his work, and printed it before him, he might then
complain of injuſtice. And here lies the fallacy of this ſpecious argument:
It was put as if the author was totally robbed of the profit of his labour; as if
all his emolument was foreſtalled, without ſuffering him to reap any emolu-
ment whatever. In that caſe, it would be the higheſt injuſtice. But, when no
ſuch intruſion has been made upon his property; when he and his afligns
have enjoyed the whole produce of his labour for twenty-eight years together
and upwards; what ground can remain for accuſing the defendant of immo-
rality? or for the author or his aſſigns to ſay, “ he is robbed of the fruits of
his labour ?"
“ If an author is permitted to enjoy his property according to the nature
of it, he can have no injuſtice done him: and if liis ſituation is ſuch, that he
can only diſpoſe of it as other people can of their goods; or if he can only
diſpoſe of it for the firſt publication ; can the author murmur, becauſe he can
diſpoſe of it only as other people can of their property? Shall an author's
claim
-
WILLIAM EARL OF MANSFIELD.
227
claim continue, without bounds of limitation ; and for ever reſtrain all the reſt
of mankind from their natural rights, by an endleſs monopoly? yet ſuch is the
claim that is now made; a claiin to an excluſive right of publication, for
ever. It is not eaſy to determine whether the conciſeneſs of the proof, or
the neatneſs in which it was dreſſed, is to be preferred, that the right claimed
by an author, is not a common-law right.
“ On what ground then can an author claim this right? How comes his
right to be ſuperior to that of the ingenious inventor of a new and uſeful
mechanical inſtrument ? Eſpecially when we conſider this iſland as the ſeat
of commerce, and not much addicted to literature in antient days; and there-
fore can hardly ſuppoſe that our laws give a higher right or more permanent
property to the author of a book than to the inventor of a new and uſeful
machine.
“ Improvement in learning was no part of the thoughts or attention of our
anceſtors. The invention of an author is a ſpecies of property unknown to the
common law of England. Its uſages are immemorial; and the views of it tend
to the benefit and advantage of the public with reſpect to the neceſſaries
of life, and not to the improvement and graces of the mind. The latter,
therefore, could be no part of the antient common-law of England.
“ When the genius of the nation took a more liberal turn, and learning
had gained an eſtabliſhment among us, it was then the office of the legiſlature
to make ſuch proviſions for its encouragement as to them ſhould ſeem
proper. And accordingly they have done fo, by the ſtatute of queen Anne*,
which lord Hardwicke is ſaid to have ſtyled (in the caſe of Midwinter et al.
verſus The Scotch Bookſellers) “ an univerſal patent for authors.”
“I wiſh as ſincerely as any man, that learned men may have all the en-
couragements and all the advantages that are conſiſtent with the general
right and good of mankind. But, if the monopoly now claimed be contrary
to the great laws of property, and totally unknown to the antient and common-law of
England ; if the eſtabliſhing of this claim will directly contradict the legiſlative
authority, and introduce a ſpecies of property contrary to the end for which
the whole ſyſtem of property was eſtabliſhed ; if it will tend to embroil the
peace of ſociety with frequent contentions ; (contentions moſt highly dis-
!
* 8 Anne, c. 19.
G g 2
figuring
228
THE LIFE OF
figuring the face of literature, and highly diſguſting to a liberal mind), if it
will hinder or ſuppreſs the advancement of learning and knowledge ; and,
laſtly, if it. Thould ſtrip the ſubje&t of his natural right; if theſe, or any
of theſe miſchiefs would follow, I can never concur in eſtabliſhing ſuch a
claim.
- The legiſlature have provided the proper encouragements for authors,
and at the ſame time have guarded againſt all theſe miſchiefs. To give that
legiſlative encouragement a liberal conſtruction is my duty as a judge, and will
ever be my own moſt willing inclination ; but it is equally my duty, not only
as a judge, but as a member of ſociety, and even as a friend to the cauſe of
learning, to ſupport the limitations of the ſtatute.
“ I ſhall therefore conclude, in the words of the act of parliament, that
the author or purchaſer of the copy ſhall have the ſole right for the particu-
lar term which the ſtatute has granted and limited, but not longer;' and,
conſequently, that the plaintiff, who claims a perpetual and unbounded mono-
poly, has no legal right to recover.
Lord Mansfield, not intending to go into the argument, faid,
- This is the firſt inſtance of a final difference of opinion in this court
fince I ſat here. Every order, rule, judgement, and opinion, has hitherto
been unanimous.
“ That unanimity never could have happened if we did not among our-
ſelves communicate our ſentiments with great freedom; if we did not form
our judgements without any prepoſſeſſion to firſt thoughts ; if we were not
always open to conviction, and ready to yield to each other's reaſons.
“We have all equally endeavoured at that unanimity upon this occaſion;
we have talked the matter over ſeveral times; I have communicated my
thoughts at large in writing ; and I have read the three arguments which have
been now delivered ; in ſhort, we have equally tried to convince or be con-
vinced ; but in vain.
but in vain. We continue to differ; and, whoever is right, each is
bound to abide by, and deliver, that opinion which he had formed upon the
fulleſt examination.
“ His lordſhip obſerved, that to repeat the two firſt arguments, or go over
the ſame topics again, would be idle and nugatory, when he had already de-
clared, “ that he read, approved, and previouſly concurred in them;" and
to be particular in oppoſing and anſwering the ſeveral parts of the laſt argu-
ment;
6
WILLIAM EARL OF MANSFIELD.
229
ment, though he differed from the concluſions of it, would be indecent, and
look too much like altercation.
“ He therefore only deſired to refer to the two firſt arguments without
actually repeating them, and that he might be underſtood as if he had ſpoken
the ſubſtance of them, and fully adopted them ; after which he expreſſed
himſelf to the following effect:
“ From premiffes either expreſſly admitted, or which cannot be, and there-
fore never have been, denied, concluſions follow, in my apprehenſion, deci-
five upon all the objections raiſed to the property of an author in the copy of
his own work by the common law.
"* I uſe the word · Copy' in the technical ſenſe in which that name or term
has been uſed, for ages, to ſignify an incorporeal right to the ſole printing and
publiſhing of ſomewhat intellectual, communicated by letters.
- Firſt admiſſion. It has all along been expreſſly admitted, that, by
the common law, an author is entitled to the copy of his own work until it has
been once printed and publiſhed by his authority ;' and 'that the four caſes
in Chancery cited for that purpoſe are agreeable to the common law; and the
relief was properly given in conſequence of the legal right.'
“The property in the copy thus abridged is equally an incorporeal right
to print a ſet of intellectual ideas or modes of thinking, communicated in a
ſet of words and ſentences and modes of expreſſion. It is equally detached
from the manuſcript, or any other pbyſical exiſtence whatſoever.
“The property thus abridged is equally capable of being violated by a
crime indi&table. In like manner, it can only be violated by another's print-
ing without the author's conſent; which is a civil injury.
“ The only remedy is the fame, by an action upon the caſe for damages
or a bill in equity for a ſpecific relief.
“ No action of detinue, trover, or treſpaſs, quare vi et armis, can lie, be-
cauſe the copy thus abridged is equally a property in notion, and has no corporeal
tangible ſubſtance.
" No diſpoſition, no transfer of paper upon which the compoſition is writ-
ten, marked, or impreſſed, though it gives the power to print and publiſh,
can be conſtrued a conveyance of the copy, without the author's cxpreſs confent
* to print and publiſh, much leſs againſt his will.
“ The property of the copy thus narrowed may equally go down from ge-
neration to generation, and poſſibly continue for ever, though neither the
author:
230
THE LIFE OF
author nor his repreſentatives, ſhould have any manuſcript whatſoever of the
work, original, duplicate, or tranſcript.
“Mr. Gwynn was entitled, undoubtedly, to the paper of the tranſcript of
lord Clarendon's Hiſtory; which gave him the power to print and publiſh it
after the fire at Peterſham, which deſtroyed one original. This might have
been the only manuſcript of it in being. Mr. Gwynn might have thrown it
into the fire if he pleaſed; but, at the diſtance of near a hundred years, the
copy was adjudged the property of lord Clarendon's repreſentatives ; and Mr.
Gwynn's printing and publiſhing it, without their conſent, was adjudged an
injury to that property, for which, in different ſhapes, he paid very dear.
“ Dean Swift was certainly proprietor of the paper upon which Pope's
letters to him were written. I know Mr. Pope had no paper upon which
they were written, and a very imperfect memory of their contents, which
made him the more anxious to ſtop their publication, knowing that the
printer had got themn.
• If the copy belongs to an author after publication it certainly belonged
to him before ; but if it does not belong to him after, where is the common
law to be found, which ſays, "there is ſuch a property before ?' All the
metaphyſical ſubtilties, froin the nature of the thing, may be equally objected
to the property before. It is incorporeal; it relates to ideas detached from
any phyſical exiſtence. There are no indicia : another may have had the fame
thoughts upon the ſame ſubject, and expreſſed them in the ſame language
verbatim.
“ At what time, and by what act does the property commence? The
ſame ſtring of queſtions may be aſked upon the copy before publication. Is
it real or perſonal? Does it go to the heir or to the executor? Being a right
which can only be defended by action, is it, as a choſe in action, aſignable
or not? Can it be forfeited? Can it be taken in execution? Can it be vejled
in the alignees under a commiſſion of bankruptcy ?
• The common law, as to the copy before publication, cannot be found
in cuſtom. Before 1732, the caſe of a piracy before publication never
exiſted ; it never was put nor ſuppoſed. There is not a ſyllable about it to
be met with any where. The regulations, the ordinances, the acts of par-
liament, the caſes in Weſtminſter Hall, all relate to the copy of books after
publication by the authors.
" Since
WILLIAM EARL OF MANSFIELD.
231
---
1
"Since 1732, there is not a word to be traced about it, except from the
four caſes in Chancery.
“ Beſides, if all England had allowed this property two or three hundred
years, the ſame objection would hold, that the uſage is not immemorial;
for, printing was introduced in the reign of Edw. IV. or Hen. VI.
“ From what ſource then is the common law drawn, which is admitted to be
fo clear in reſpect of the copy before publication ?
“From this argument, becauſe it is juſt that an author reap
the
pe-
cuniary profits of his own ingenuity and labour. It is juſt that another
ſhould not uſe his name without his conſent. It is fit that he ſhould judge
when to publiſh, or whether he ever will publiſh. It is fit he ſhould not
only chooſe the time but the manner of publication; how many; what
volume; what print. It is fit he thould chooſe to whoſe care he will truſt
the accuracy and correctneſs of the impreſſion, in whoſe honeſty he will
confide not to foiſt in additions, with other reaſonings of the ſame effect.
“ I allow them fufficient to ſhew “it is agreeable to the principles of right
and wrong, the fitneſs of things, convenience, and policy, and therefore to
the common law, to protect the copy before publication.'
• But the ſame reaſons hold after the author has publiſhed; he can reap
no pecuniary profit, if the next moment after his work comes out it may be
pirated upon worſe paper, and in worſe print, and in a cheaper volume.
“ The 8th of queer. Anne is no anſwer ; we are conſidering the coninion
law upon principles before and independent of that act.
66 The author may not only be deprived of any profit, but loſe the expence
he has been at. He is no more maſter of the uſe of his own name. He has
no controul over the correctneſs of his own work. He cannot prevent additions.
He cannot retract errors. He cannot amend or cancel a faulty edition. Any
one may print, pirate, and perpetuate the imperfections, to the diſgrace and
againſt the will of the author ; may propagate ſentiments under his name,
which he diſapproves, repents, and is aſhamed of. He can exerciſe no diſcre-
tion as to the manner in which, or the perſons by whom, his work ſhall
be publiſhed.
“ For theſe and many more reaſons, it ſeems to me juſt and fitto
protect the copy after publication.'
“ All objections, which hold as much to the kind of property before as
to the kind of property after publication, go for nothing; they prove too
much.
66 There
32
THE LIFE OF
1
6. There is no peculiar objection to the property after, except that the
copy is neceſarily made common after the book is once publiſhed.'
“ Does a transfer of paper upon which it is printed neceſſarily transfer the
copy niore than the transfer of paper upon which the book is written?
“ The argument turns in a circle ; "the copy is made common, becauſe
the law does not protect it ; and the law cannot protect it, becauſe it is made
common.
" The author does not mean to make it common; and if the law ſays He
ought to have the copy after publication, it is a ſeveral property, eaſily pro-
tected, aſcertained, and ſecured.
“ The whole then muſt finally refolve in this queſtion, 'Whether it is
agreeable to natural principles, moral juſtice and fitneſs, to allow him the copy
after publication as well as before.'
" The general conſent of this kingdom, for ages, is on the afirmative ſide.
The legiſative authority has taken it for granted ; and interpoſed penalties to
protect it for a time.
“ The ſingle opinion of ſuch a man as Milton, ſpeaking, after much con-
fideration, upon the very point is ſtronger than any inferences from gathering
acorns and ſeizing a vacant piece of ground; when the writers, ſo far from
thinking of the very point, ſpeak of an imaginary ſtate of nature before the
invention of letters.
“ The judicial opinions of thoſe eminent lawyers and great men who granted
or continued injunctions in caſes after publication, not within the 8th of
queen
Anne, uncontradicted by any book, judgement, or ſaying, muſt weigh in
any queſtion of law, much more in a queſtion of mere theory and ſpeculation
as to what is agreeable or repugnant to natural principles. I look upon theſe
injunctions as equal to any final decree.
“Whoever has attended the court of Chancery knows, that if an injunc-
tion, in the nature of an injunction, to ſtay waſte, is granted upon motion or con-
tinued after anſwer, it is in vain to go to hearing ; for, ſuch an injunction
never is granted upon motion unleſs the legal property of the plaintiff is made
out, nor continued after anſwer unleſs it ſtill remains clear, allowing all the
defendant has ſaid. In ſuch a caſe the defendant is always adviſed either to
acquieſce or appeal; for he never can make a better defence then is ſtated upon
his own anſwer.
6. This
WILLIAM EARL OF MANSFIELD,
233
« This caſe is not ſent hither from the Court of Chancery upon any doubt
of theirs. There never was a doubt in the Court of Chancery, till a doubt
was raiſed there from decency, upon a ſuppoſed doubt in this court, in the
caſe of Tonſon and Collins. There is not an inſtance of an injunction re-
fuſed, till it was refuſed upon the grounds of that doubt. The Court of
Chancery never grant injunctions in caſes of this kind, where there is any
doubt. Therefore they refuſed it when they thought there was a doubt.
That caſe was argued twice with ſolemnity; and after the ſecond argument
it was referred to the Exchequer Chamber, to be argued before all the
judges.
66 That reference did not ariſe from any difference of opinion or difficulty
among us. On the contrary, we ſuſpected colluſion ; and that if we gave
judgement for the plaintiff, there certainly would be no writ of error.
We
wiſhed to take the opinion of all the judges. We were afterwards clearly
informed of the truth of the colluſion; and therefore the cauſe proceeded
no farther.
“ But while it hung under this appearance of difficulty, there was ſufficient
ground for the Court of Chancery to ſay, “ the property was doubtful.” They
did not ſend it to law; they left the party to follow his legal remedy. Al
doubtful legal title muſt be tried at law, before it can be made the ground of
an injunction. Injunctions of this kind are rightly and properly refuſed. In
a doubtful cafe it would be iniquity to grant them, becauſe, if it ſhould come
out, that the plaintiff has no legal title,' the defendant is injured by the
injunction, and can have no reparation.
" If it is agreeable to natural principles to allow the copy after publica-
tion, I am warranted by the admiſſion which allows it before publication, to
fay, that this is common law. '
“There is another admiſſion equally concluſive.
" Second admiffion. It is, and has all along been admitted, that, by
the common law, the king's copy continues after publication, and that the
unanimous judgement of this court in the caſe of Baſkett and the Univerſity
of Cambridge * is right.'
Michaelmas, 1758, 32 G. II. vid. 4 Burr. p. 661.
Hh
"The
234
THE LIFE OF
“ The king has no property in the art of printing. The ridiculous con-
ceit of Atkins was exploded at the time.
“ The king has no authority to reſtrain the preſs, on account of the ſub-
ject-matter upon which the author writes, or his manner of treating it.
- The king cannot by law grant an excluſive privilege to print any book
which does not belong to himſelf.
• Crown copies are, as in the caſe of an author, civil property; which is
deduced, as in the caſe of an author, from the King's right of original
publication. The kind of propertry in the crown, or a patentee from the
crown, is juſt the ſame ; incorporeal, incapable of violation but by a civil
injury, and only to be vindicated by the ſame remedy, an action upon the
caſe, or a bill in equity.
“ There were no queſtions in Weſtminſter Hall before the Reſtoration as to
Crown copies. The reaſon is very obvious: it will occur to every one that
hears me. The fact is, however, is fo: there were none before the Refto.
ration.
"Upon every patent which has been litigated fince, the counſel for the
patentee, whatever elſe might be thrown out, or whatever encouragement
they might have, between the Reſtoration and Revolution, to throw out
notions of power and prerogative, have tortured their invention to ſtand upon
property.
“Upon Rolle's Abridgement they argued from the Year-books, which are
there abridged, “tliat the Year-books having been compiled at the king's
expence, were the king's property, and therefore the printing of them be-
longed to his patentee.'
“ Upon Croke's Reports they contended, that the king paid the judges
who made the deciſions ; ergo the deciſions were his.' The judges of Weſt-
minſter Hall thought they belonged to the author, that is, to the purchaſer
from, or the executor of, the author; but ſo far the controverſy turned
tipon property.
“In Seymour's caſe, 1 Mod. 256, who printed Gadbury's Almanac without
leave of the Stationer's Company, who had a patent for the ſole printing of Al-
manacs, Pemberton reſorted to property. He argued, beſides arguing from the
prerogative, that an almanac has 120 certain author; therefore the king has
the property, and, by conſequence, may grant his property.” It was far-
fetched; and it is truly faid, that the conſequence did not follow. For,
if
1
WILLIAM EARL OF MANSFIELD.
235
common.
if there was no certain author, the property would not be the king's, but
. Pemberton was a very able lawyer, and ſaw the neceſſity of getting
at property, if he could inake it out.
“ All the decrees in Chancery and the judgements at common law upon
almanacs are now out of the caſe, and all the doctrine of prerogative rejected,
by what was done in the caſe of The Stationers Company and Partridge.
“ It came on, in the year 1709, before Lord Cowper on continuing the
injunction. There is no report of it, I believe, in print; at leaſt I have not
ſeen any. I heve read the bill and anſwer. The bill puts it upon all the
prerogative notions of power, and inſiſt, that the king's patentee had a ſole
excluſive right of printing almanacs. The anſwer inſiſts, that theſe were
extravagant illegal notions ; that they were taken up at times when the pre-
rogative ran high, and when the diſpenſing power was allowed; and it in-
fiſts, that the queſtion ought, ſince the Revolution, to be argued upon pro-
per principles, conſiſtent with the rights and privileges of the ſubject. The
defendants denied the authority of all the caſes ſtated by the bill, as far as
they went upon prerogative right. Lord Cowper continued the injunction
till hearing. I have office-copies of all the orders and pleas that were cited :
I dare ſay I have thirty or forty of them. It appears, that theſe decrees
were all read; and that the judgement of the Houſe of Lords was read and
gone through. Lord Harcourt afterwards heard the cauſe. He did not
chooſe in a caſe about almanacs to decide upon prerogative. He therefore
made a caſe of it for the opinion of this court, lord Parker being then chief
juſtice. This court, ſo far as it went, inclined againſt the right of the
crown in almanacs; but, to this hour, it has never been determined ; and
the injunction granted by lord Cowper ſtill continues.
“I have Salkeld's manuſcript report, and have had it many years, of
what paſſed in this court in the courſe of the argument of this caſe of The
Company of Stationers againſt Partridge. I do not know whether it is goť
into print: I have not ſeen it in print. Mr. York had a copy of it when he
argued the caſe of the Univerſity of Cambridge and Baſkett. Mr. Salkeld ar-
gued for the defendant Partridge; Sir Peter King for the plaintiffs.
" I will ſtate to you, ſo far as is material to the argument, how they put
it, and the only grounds that they thought tenable.
“ Mr. Salkeld, after poſitively and expreſſly denying any prerogative in
the crown over the preſs, or any power to grant any excluſive privilege,
H h 2
ſays,
1
236
THE LIFE OF
ſays, "I take the rule in all theſe caſes to be, that where the crown has a
property or riglet of copy the king may grant it. The crown may grant the
ſole printing of Bibles in the Engliſh tranſlatiou, becauſe it was inade at the
king's charge. The ſame reaſon holds as to the Statutes, rear-books, and
Common Prayer Books.
Sir Peter King, for the plaintiffs, argues thus, throwing out, at the ſame
time, the things that I have already mentioned, though he don't ſeem to be
very ſerious in it: 'I argue, that if the crown has a right to the Common
Prayer Book, it has a right to every part of it; and the calendar is a part of
the Common Prayer Book, and an almanac is the ſame thing with the ca-
lendar,.&c.'
“ Parker, chief juſtice, ſpeaks to nothing ſaid at the bar, but only,
whether the calendar is part of the Common Prayer Book.' And as to that,
he goes back as far as the Council of Nice, and doubts whether it is, or ra-
ther indeed thinks that it is not, part of it; he ſays, it may be an Index, but
is no part of it.
“Mr. Juſtice Powell ſays, “You muſt diſtinguiſh this from the common
caſes of monopolies, by ſhewing ſome property in the crown, and bringing
it within the caſe of the Common Prayer Book;' and he rather inclined to
think, that almanacs might be the king's, becauſe there is a trial by al-
1
manacs.
• To which lord Parker replied, that he never leard of ſuch a thing as
a trial by almanac.'
• They leave it upon this. It ſtood over for another argument, to ſee if
they could make it like the caſe of the Common Prayer Book. I don't know
what happened afterwards ; but there never was any judgement, and, though
I have made ſtrict enquiry, I don't find that there was ever any opinion.
given.
“ I heard lord Hardwicke fay what Mr. Juſtice Willes has quoted as to
theſe arguments from property in fupport of the king's right neceſſarily in.
ferring an author's.
- The caſe of Baſkett and the Univerſity of Cambridge was then depending
in this court, when lord Hardwicke made uſe of that expreſſion or argument..
It has ſince been determined. We had no idea of any prerogative in the
crown over the preſs, or of any power to reſtrain it by excluſive privileges, or
of
WILLIAM EARL OF MANSFIELD.
237
of any power to control the ſubject-matter on which a man might write, or
the manner in which he might treat it. We reſted upon property froi
the king's right of original publication.
“Acts of parliament are the works of the legiſlature ; and the publication
of them has always belonged to the king, as the executive part, and as the
head and ſovereign.
- The art of printing has only varied the mode ; and though printing be
within legal memory, we thought the uſage ſince the invention of printing
..
very material.
6. Whoever looks into Mr. Yorke's argument, upon which the opinion of
the court in that caſe in a great meaſure went; I do not ſay throughout, but
in a great meafure ; will ſee the great pains he takes to thew the original pro-
perty in the crown.
“ Though the king may grant a concurrent right; for, in that caſe, the
grant was of a concurrent right, and he might grant it to ten thouſands ;
he might grant it to every member of the Stationers. Company; he might
grant it to every bookfeller ; we had no idea, that the firſt edition of acts
of parliament made the copy common. '
“And yet any man may tranſcribe an act of parliament or a record; and
any perſon may make labourious ſearches and abſtracts from records, and
have a right to print them.
“ Lord Hardwicke had before reaſoned in the ſame way, in the caſe of
Manby and others againſt Owen and others, on 8th of April, 1755, re-
lating to the Seſſions. Paper. The plaintiffs had bought the Seſſions Paper
of
my Lord Mayor, and had (I think) given him an hundred guineas for it :
and upon an affidavit “that the Lord Mayor had always appointed the prin-
ters of that paper, and that it was uſual for the Lord Mayor to take a ſum of
money for it, and that the defendant had pirated it;' Lord Hardwicke con-
fidered the grant as property in the copy, and granted the injunction upon
the foot of property; and never dreamt that the firſt edition of it made it
common. This was acquieſced under ; and the defendants were not adviſed
to proceed farther. Nothing is more manifeſt, than that the injunction pro-
ceeded upon the infringement of the plaintiff's property : for, as a contempt of
the court of the Old Bailey, the court of Chancery would not have interfered ;
but they were of opinion that the copy was transferred to the plaintiff, and
that it was not made common by the firſt publication.'
..
Sito Il
238
THE LIFE OF
I
"If the common law be fo in theſe caſes, it muſt alſo be ſo in the caſe of
an auther. All the reaſoning, that ſubſequent editions ſhould be correct, '
holds equally to an author ; his name ought not to be uſed, againſt his will.
It is an injury, by a faulty, ignorant, and incorrect edition, to diſgrace his
work, and miſlead the reader.
- The copy of the Hebrew Bible, the Greek Teſtament, or the Septuagint,
does not belong to the king; it is common : but the Engliſh Tranſlation he
bought; therefore it has been concluded to be his property.
“ If any man ſhould turn the Pſalms, or the writings of Solomon,
or Job, into verſe, the king could not ſtop the printing or ſale of ſuch
a work : it is the author's work. The king has no power or controul
over the ſubject-matter ; his power reſts in property: his whole right
reſts upon the foundation of property in the copy by the common-law.
What other ground can there be for the king's having a property in
the Latin Grammar (which is one of his ancienteft copies), than that it was
originally compoſed at his expence? Whatever the common law ſays of pro-
perty in the king's caſe, from analogy to the caſe of authors, muſt hold conclu-
fively, in my apprehenſion, with regard to authors.
“ I always thought the objection from the * Act of Parliament the moſt
plauſible. It has generally ſtruck, at firſt view. But, upon conſideration, it
is, I think, impoſſible to imply this Act into an abolition of the common-
law right, if it did exiſt; or into a declaration that no ſuch right ever
exiſted.'
“ The bill was brought in, upon the petition of the proprietors, to ſecure
their property for ever, by penalties; the only way in which they thought it
could be ſecured, having had no experience of any other, there being no ex-
ample of an action at law tried, or any idea that a bill would lie for an in-
junction and relief in equity.'
“ An alteration was made in the committee, to reſtrain the perpetual into
a temporary ſecurity.
" The argument drawn from the clauſe to regulate the price ute of books,
* 8 Anne, c. 19.
of Sect 4. now repealed (by 12 Geo. II. c. 36. $ 3.)
cannot
-
...
WILLIAM EARL OF MANSFIELD.
239
cannot hold. That clauſe goes to all books, is perpetual, and follows the act
of H. VIII *.
6. The words no longer' ufo add nothing to the ſenſe, which is exactly the
fame whether theſe words are added or not.
• The word "veſting' *, in the title, cannot be argued from as declaratory
that there was no 'property before. The title is but once read ; and is no
part of the act. In the body, the word "ſecured' is made uſe of,
“ Had there been the leaſt intention to take or declare away every pretence
of right at the common law, it would have been expreſsly enacted; and there
muſt have been a new preamble, totally different from that which now
ſtands.
“ But the legiſlature has not left their meaning to be found out by looſe
conje&tures. The preamble certainly proceeds upon the ground of a right of
property having been violated; and might be argued from, as an allowance or
confirmation of ſuch a right at the common law. The remedy enacted againſt
the violation of it being only temporary, might be argued from, as implying
there exiſted no right but what was fecured by the act;' therefore an expreſs
Juving is added, “that nothing in this act contained ſhall extend, or be con-
ftrued to extend, to prejudice, or confirm any right, &c. ;' ' any right is mani-
feſtly any other right than the term ſecured by the act. The act ſpeaks of no
right whatſoever, but that of authors, or derived from them; no other right
could poſſibly be prejudiced or confirmed by any expreſſion in the act. The
words of the ſaving are adapted to this right : “ book or copy already printed,
or hereafter to be printed ;' they are not applicable to prerogative copies:
If letters patent to an author or his aſſigns could give any right, they might
come under the generality of the ſaving ; but ſo little was ſuch a right in the
contemplation of the legiſlature, that there is not a word about patents in the
whole act. Could they have given any right, it was not worth ſaving, be-
cauſe it never exceeded fourteen years.
:
25
H. VIII. C. 15. § 4.
oh Vide Sect. 1.
# Vide title, by veſting, &c.
66 It
240
T IIE LIFE OT
It was ſtrongly urged, that a common-law right could not exiſt; becauſe
there was no time from which it could be ſaid to attach or begin :' whercas
the ſtatute-property was aſcertained by and commenced from the entry.
so Undoubtedly, the previous entry is a condition upon which all the ſecu-
rity given by the ſtatute depends : and if every man was entitled to print,
without the author's confcnt, before this act, nobody can be queſtioned for
ſo printing ſince the act, before an entry, Nay, the offence being newly
created, it can only be proſecuted by the remedies preſcribed, and within the
limited time of three months.
" But the court of Chancery has uniforınly proceeded upon a contrary con-
ſtruction. They conſidered the act, not as creating a new offence, but as
giving an additional ſecurity to a proprietor grieved ; and give a relief wil bout
regard to any of the prorifions in the act, whether the term was or was
not expired. No injunction can be obtained, till the court is ſatisfied that
the plaintiff has a clear legal right. And where, for the ſake of the relief,
the Court of Chancery proceeds upon a ground of common or ſtatute law,
their judgements are precedents of high authority in all the courts of Weit-
minſter-hall.'
His lordſhip adopted and referred to other obſervations made upon
the act by the two judges who ſpoke firſt: and then concluded thus,
" I deſire to be underſtood, that it is upon this ſpecial verdict I give my
opinion. Every remark which has been made, as to what is and what is not
found, I conſider as material. The variation of any one of the circumſtances
may change the merits of the queſtion : the variation of fome, certainly would.
Every caſe, where ſuch variation ariſes, will ſtand upon its own particular
ground ; and will not be concluced by this judgement.
• The ſubject at large is exhauſted : and therefore I have not gone into it.
I have had frequent opportunities to conſider of it. I have travelled in it
for many years. I was counſel in moſt of the caſes which have been cited
from Chancery: I have copies of all, from the Regiſter-Book. The firſt
caſe of Milton's Paradiſe Loſt, was upon my motion. I argued the ſecond :
which was ſolemnly argued, by one on each ſide. I argued the caſe of Mil-
lar againſt Kincaid, in the Houſe of Lords. Many of the precedents were
tried by my advice. The accurate and elaborate inveſtigation of the matter
in this cauſe, and in the former caſe of Tonſon and Collins, has confirmed
me in what I always inclined to think, That the Court of Chancery did
right,
WILLIAM EARL OF MANSFIELD.
241
right, in giving relief upon the foundation of a legal property in authors ; in-
dependent of the entry, the term for years, and all the other proviſions an-
nexed to the ſecurity given by the act.'
“ Therefore my opinion is, that judgement be for the plaintiff.' And it
muſt be entered * as on the day of the laſt argument of this caſe at the bar.”
A writ of error was afterwards brought: but the plaintiff in -er-
ror, after aſſigning errors, ſuffered himſelf to be nonproſjed. And the
Lords Commiſſioners, after Trinity-Term, 1770, granted an in-
junction.
1774
In February, 1774, the appeal from a decree of the Court of
Chancery for aſcertaining the right of Literary Property, wherein
Donaldſon and Donaldſon were appellants, and Becket and others
were reſpondents, for the deciſion of the Houſe of Lords.-
The caſe had been argued at great length, and the judges had
given their opinions.-The motion then was to reverſe a decree
of the Court of Chancery, which had been made in favour of the
perpetuity of the property.
The principal ſpeakers were, lord Camden againſt the decree
and lord Lyttelton in ſupport of it.—Lord Mansfield, for obvious
reaſons, did not ſpeak as a judge.—Upon a diviſion the decree
was ordered to be reverſed, without coſts.
The ſpeeches of lord Mansfield, as a peer of this realm, on
ſome important occaſions, have been ſelected ; and, without the
introduction of a few of them, the author is not a little appre-
henſive that the hiitory of the legal life of Lord Mansfield, if it
may be ſo defined, would be deprived of one of its chief orna-
ments.
With gratitude, and with great pleaſure, the Biographer ac-
knowleges his obligations to a dignified civilian, the ingenious
4
* Vide 4th Burr. p. 2303.
I i
contem-
342
THE LIFE OF
.
contemporary of lord Mansfield, for an authentic copy of a ſpeech
made by his lordſhip the 3d of February, 1766, in the Houſe of
Lords, on the ſubject of American taxation, which, having been
reviſed and corrected by the noble ſpeaker himſelf, ſeems to have
an additional value ſtampt upon it, if any alluſion to the Ameri-
can ſtamp-act may be pardoned.
“ My Lords,
" I fall ſpeak to the queſtion ſtrictly as a matter of right;
for, it is a propoſition in its nature ſo perfectly diſtinct from the expediency
of the tax, that it muſt neceſſarily be taken ſeparate, if there is any true
logic in the world ; but of the expediency or inexpediency I will ſay no-
thing. It will be time enough to ſpeak upon that ſubject when it comes to
be a queſtion.
"" I ſhall alſo ſpeak to the diſtinctions which have been taken, without any
real difference, as to the nature of the tax; and I ſhall point out laſtly the
neceſſity there will be of exerting the force of the ſuperior authority of go-
vernment, if oppoſed by the ſubordinate part of it.
“ I am extremely ſorry that the queſtion has ever become neceffary to be
agitated, and that there ſhould be a deciſion upon it. No one in this houſe
will live long enough to ſee an end put to the miſchief which will be the re-
ſult of the doctrine which has been inculcated: but the arrow'is ſhot, and
the wound already given. I ſhall certainly avoid perſonal reflections: no
one has had more caſt upon him than myſelf; but I never was biaſſed by any
conſideration of applauſe from without, in the diſcharge of my public duty;
and, in giving my ſentiments according to what I thought law, I have relied
upon my own conſciouſneſs. It is with great pleaſure I have heard the noble
lord, who moved for the reſolution, expreſs himſelf in ſo manly and ſenſible
a way, when he recommended a difpaſſionate debate, white, at the ſame
time, he urged the neceſſity of the houſe coming to ſuch a reſolution with
great dignity and propriety of argument.
“ I ſhall endeavour to clear away from the queſtion all that maſs of differ-
tation and learning diſplayed in arguments which have been fetched from
ſpeculative men who have written upon the ſubject of government, or from
antient records, as being little to the purpoſe : I ſhall inſiſt that theſe re-
cords are no proofs of our preſent conſtitution. A noble lord has taken up
his
1
WILLIAM EARL OF MANSFIELD.
243
1
his argument from the ſettlement of the conſtitution at the Revolution : I
ſhall take up my argument from the conſtitution as it now is. The conſti-
tution of this country has been always in a moving ſtate, either gaining or
loſing ſomething : and with reſpect to the modes of taxation, when we get
beyond the reign of Edward the Firſt, or of king John, we are all in doubt
and obſcurity. The hiſtory of thoſe times is full of uncertainties. In re-
gard to the writs upon record, they were iffued ſome of them according to
law, and ſome not according to law; and ſuch were thoſe concerning ſhip-
money, to call aſſemblies to tax themſelves, or to compel benevolences.
Other taxes were raiſed from eſcuage, fees for knights ſervice, and by other
means ariſing out of the feudal ſyſtem. Benevolences are contrary to law;
and it is well known how people refifted the demands of the crown in the
caſe of ſhip-money, and were perſecuted by the court; and, if any ſet of
men were to meet now to lend the king money, it would be contrary to law,
and a breach of the rights of parliament. I ſhall anſwer the noble lord
par-
ticularly upon the records he has quoted.”
[He then anſwered, one by one, the writs and records which had been
quoted by lord Camden.
“ With reſpect to the Marches of Wales, who were the borderers, pri-
vileged for affiſting the king in his war againſt the Welſh in the mountains,
their enjoying this privilege of taxing themſelves was but of a ſhort dura-
tion, and during the life of Edward the Firſt, till the prince of Wales canie
to be the king; and then they were annexed to the crown, and became ſub-
ject to taxes like the reſt of the dominions of England, and from thence
came the cuſtom, though unneceſſary, of naming Wales and the town of
Monmouth in all proclamations and in acts of parliament. Henry the
Eighth was the firſt who iſſued writs for it to return two members to parlia-
ment. The crown exerciſed this right ad libitum, from whence ariſes the
inequality of repreſentation in our conſtitution at this day. Henry VIII.
iſſued a writ to Calais to ſend one burgeſs to parliament. One of the coun-
ties Palatine (I think he ſaid Durham) was taxed fifty years to ſubſidies be-
fore it fent members to parliament. The clergy were at no time unrepre-
ſented in parliament. When they taxed themſelves, it was done with the
concurrence and conſent of parliament, who permitted them to tax them-
ſelves
upon their petition, the convocation fitting at the fame time with the
parliament; they had too their repreſentatives always fitting in this houſe,
biſhops and abbots; and in the other houſe they were at no time without a
right
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THE LIFE OF
right of voting ſingly for the election of members, ſo that the argument,
fetched from the caſe of the clergy, is not an argument of any force, be-
cauſe they were at no tiene unrepreſented here.
«The reaſoning about the colonies of Great Britain, drawn from the co-
lonies of antiquity, is a mere uſeleſs diſplay of learning; for, the colonies of
the Tyrians in Africa, and of the Greeks in .llia, were totally different
from our (v tem. No ration before ourſelves forined any regular fyftem of
colonization ; but the Romans and their fyftem was a military one, and of
garrions placed in the principal towns of the conquerred provinces. The
ſtates of Holland were not colonies of Spain, but they were ſtates dependent
upon the Houſe of Auſtria in a feudal dependence. Nothing could be more
different from our colonies than that flock of men, as they have been
called, who came from the North, and poured into Europe. Theſe emigrants
renounced all laws, all protection, all connection with their mother-coun-
tries: they choſe their leaders, and marched under their banners to ſeek their
fortunes and eſtabliſh new kingdoms upon the ruins of the Roman empire ;
whereas our colonies, on the contrary, emigrated under the ſanction of the
crown and parliament. They were modelled gradually into their preſent
forms, reſpectively, by charters, grants, and ſtatutes; but they were never
ſeparated from the mother country, or fo emancipated as to become fui
juris. There are ſeveral ſorts of colonies in Britiſh America, the charter-co-
lonies, the proprietary governments, and the king's colonies. The firſt colo-
nies were the charter-colonies, ſuch as the Virginia company ; and theſe
companies, had among their directors, members of the privy council and of
both houſes of parliament; they were under the authority of the privy
council, and had agents reſident here reſponſible for their proceedings.
So much were they conſidered as belonging to the crown and not to the
king perſonally (for there is a great difference, though few people attend to
it), that when the two houſes, in the time of Charles the Firſt, were going
to paſs a bill concerning the colonies, a meſſage was ſent to them by the
king, that they were the king's colonies, and that the bill was unneceíTary,
for that the privy council would take order about them; and the bill never
had the royal afſent. The commonwealth-parliament, as ſoon as it was ſet-
tled, were very early jealous of the colonies ſeparating themſelves from them,
and paſſed a reſolution or act, and it is a queſtion whether it is not in force
now, to declare and eſtabliſh the authority of England over its colonies.
But if there was no expreſs law, or reaſon, founded upon any neceſſary in-
ference
t
WILLIAM EARL OF MANSFIELD.
245
ference from an expreſs law, yet the uſage alone would be ſufficient to ſup-
port that authority: for, have not the colonies ſubmitted ever ſince their firſt
eſtabliſhment to the juriſdiction of the mother-country? In all queſtions of
property, the appeals from the colonies have been to the privy council here ;
and ſuch cauſes have been determined, not by the law of the colonies, but
by the law of England. A very little while ago there was an appeal on a
queſtion of limitation in a deviſe of land with remainders ; and, notwith-
ſtanding the intention of the teſtator appeared very clear, yet the caſe was
determined contrary to it, and that the land fhould paſs according to the law
of England. The colonies have been obliged to recur very frequently to the
juriſdiction here to ſettle the diſputes among their own governments ; I well
remember ſeveral references on this head, when the late lord Hardwicke was
attorney-general, and fir Clement Wearg ſolicitor-general. New Hampſhire
and Connecticut were in blood about their differences ; Virginia and Mary-
land were in arms againſt each other. This ſhews the neceſſity of one fupe-
rior deciſive juriſdiction, to which all ſubordinate juriſdictions may recur.
Nothing, my lords, could be more fatal to the peace of the colonies at any
time, than the parliament giving up its authority over them, for in ſuch a
caſe there muſt be an intire diffolution of government. Conſidering how tlie
colonies are compoſed, it is eaſy to foreſee there would be no end of feuds and
factions among the ſeveral ſeparate governments, when once there ſhall be no
one government here or there of ſufficient force or authority to decide their
mutual differences; and, government being diffolved, nothing remains but
that the colonies muſt either change their conſtitution, and take ſome new
form or government, or fall under ſome foreign power. At preſent the ſeve-
ral forms of their conſtitution are very various, having been produced, as all
governments have been originally, by accident and circumſtances. The
forms of government in every colony were adapted, from time to time, ac-
cording to the ſize of the colony ; and ſo have been extended again,
from time to time, as the numbers of their inhabitants and their com-
mercial connections outgrew the firſt model. In ſome colonies, at
firſt there was only a governor aſſiſted by two or three counſel ;
then more were added, then courts of juſtice were" erected, then
affe:nblies were created. Some things were clone by inſtructions from
the ſecretaries of ſtate, other things were done by order of the king,
and council, and other things by commiſſions under the great ſeal. It is
ob-
4.
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THE LIFE OF
1
!
obſervable, that, in conſequence of theſe eſtabliſhments from time to time,
and of the dependency of theſe governments upon the ſupreme legiſlature at
home, the lenity of each government in the colonies has been extreme
towards the ſubject; and a very great inducement it has been to people to
come and ſettle in them. But, if all thoſe governments which are now in-
dependent of each other ſhould become independent of the mother-country,
I am afraid that the inhabitants of the colonies are very little aware of the
conſequences; they would feel in that caſe very ſoon the hand of power
more heavy upon thein in their own governments than they have yet done,
or have ever imagined.
“The conſtitutions of the different colonies are made up of different prin-
ciples, and inuft remain dependent, from the neceſſity of things, and their re-
lations upon the juriſdiction of the mother-country; or they muſt be totally
diſmembered from it, and form a league of union among themſelves againſt
it, which could not be effected without great violences. No one ever
thought the contrary, till the trumpet of fedition has been blown. Acts of
parliament have been made, not only without a doubt of their legality, but
with univerſal applauſe, the great object of which has been ultimately to fix
the trade of the colonies, ſo as to center in the boſom of that country from
whence they took their original. The Navigation Act ſhut up their inter-
courſe with foreign countries. Their ports have been made ſubject to
cuſtoms and regulations, which have cramped and diminiſhed their trade;
and duties have been laid, affecting the very inmoſt parts of their commerce,
and, among others, that of the poſt; yet all theſe have been ſubmitted to
peaceably, and no one ever thought till now of this doctrine, that the colo-
nies are not to be taxed, regulated, or bound by parliament. A few par-
ticular merchants were then, as now, diſpleaſed at reſtrictions which did not
permit them to make the greateſt poſſible advantages of their commerce in
their own private and peculiar branches; but, though theſe few merchants
might think themſelves loſers in articles which they had no right to gain, as
being prejudicial to the general and national ſyſtem, yet I muſt obſerve, that
the colonies, upon the whole, were benefited by theſe laws, becauſe theſe
reſtrictive laws, founded upon principles of the moſt ſolid policy, flung a
great weight of naval force into the hands of the mother-country, which was
to protect its colonies, and without an union with which the colonies muſt
have been entirely weak and defenceleſs, but which becaine relatively great,
fubor-
I
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WILLIAM EARL OF MANSFIELD.
247
ſubordinately, and in proportion as the mother-country advanced in ſuperiority
over the reſt of the maritime powers in Europe, to which both mutually con-.
tributed and of which both have reaped a benefit, equal to the natural and juſt
relation in which they both ſtand reciprocally, of dependency on one ſide,
and protection on the other.
" There can be no doubt, my lords, but that the inhabitants of the co-
lonies are as much repreſented in parliament as the greateſt part of the peo-
ple of England are repreſented ; among nine millions of whom there are eight
which have no votes in electing members of parliament. Every objection
therefore to the dependency of the colonies upon parliament, which ariſes
to it upon the ground of repreſentation, goes to the whole preſent conſtitu-
tion of Great Britain ; and I ſuppoſe it is not meant to new-model that too :
people may form ſpeculative ideas of perfection, and indulge their own fan-
cies or thoſe of other men. Every man in this country has his particular
notion of liberty ; but perfection never did, and never can, exiſt in
any
hu-
man inſtitution; to what purpoſe then are arguments drawn from a diſtinc-
tion, in which there is no real difference, of a virtual and actual repreſenta-
tion? A member of parliament, choſen for any borough, repreſents not
only the conſtituents and inhabitants of that particular place, but he repre-
ſents the inhabitants of every other borough in Great Britain. He repreſents
the city of London, and all other the commons of this land, and the inhabi-
tants of all the colonies and dominions of Great Britain, and is, in duty and
conſcience, bound to take care of their intereſts.
“I have mentioned the cuſtoms and the poſt-tax; it leads me to anſwer
another diſtinction, as falſe as the above, the diſtinction of internal and ex-
ternal taxes. The noble lord, who quoted ſo much law, and denied upon
thoſe grounds the right of the parliament of Great Britain to lay internal
taxes upon the colonies, allowed at the ſame time that reſtrictions upon
trade, and duties upon the ports, were legal. But I cannot fee a real dif-
ference in this diſtinction; for, I hold it to be true, that a tax laid in any
place is like a pebble falling into, and making a circle in, a lake, till one
circle produces and gives niotion to another, and the whole circumference is
agitated from the center; for, nothing can be more clear than that a tax of
ten or twenty per cent. laid upon tobacco, either in the ports of Virginia or
London, is a duty laid upon the inland plantations of Virginia, a hundred
miles from the ſea, whereſoever the tobacco grows.
" I do
248
THE LIFE OF
<< I do not deny but that a tax may be laid injudiciouſly and injuriouſly,
and that people in ſuch a caſe may have a right to complain ; but the nature
of the tax is not now the queſtion ; whenever it comes to be one, I am for
lenity. I would liave no blood drawn. There is, I am fatisfied, no occa-
ſion for any to be drawn. A little time and experience of the inconveniences
and miſeries of anarchy may bring people to their ſenſes.
..“ With reſpect to what has been ſaid or written upon this ſubject, I differ
from the noble lord, who ſpoke of Mr. Otys and his book with contempt,
though he maintained the ſame doctrine in ſome points, although in others
he carried it farther than Otys himſelf; who allows every where the ſupre-
macy
of the crown over the colonies. No man on ſuch a ſubject is con-
temptible. Otys is a man of conſequence among the people there. They
have choſen him for one of their deputies at the congreſs and general meet-
ing from the reſpective governments. It was ſaid, the man is mad. What
then? One madman often makes many. Mafſaniello was mad. Nobody
doubts it; yet, for all that, he overturned the government of Naples. Mad-
neſs is catching in all popular aſſemblies, and upon all popular matters.
The book is full of wildneſs. I never read it till a few days ago, for I
ſeldomn look into ſuch things; I never was actually acquainted with the
contents of the Stamp-Act, till I ſent for it on purpoſe to read it before the
debate was expected. With reſpect to authorities in another houſe, I know
nothing of them. I believe that I have not been in that houſe more than
once ſince I had the honor to be called up to this; and, if I did not know
any thing that paſſed in the other houſe, I could not and would not mention
it as an authority here. I ought not to mention any ſuch authority ; I ſhould
think it beneath my own and your lordſhips' dignity to ſpeak of it.
66 I am far from bearing any ill-will to the Americans; they are a very
good people, and I have long known them; I began life with them, and
owe much to them, having been much concerned in the plantation-cauſes
before the privy council, and ſo I became a good deal acquainted with
American affairs and people. I dare ſay, their heat will ſoon be over, when
they come to feel a little the conſequences of their oppoſition to the legiſla-
ture. Anarchy always cures itſelf; but the fermentation will continue ſo
much the longer, while hot-headed men there find that there are perſons of
weight and character to ſupport and juſtify them here.
« Indeed
WILLIAM EARL OF MANSFIELD,
249
" Indeed, if the diſturbances ſhould continue for a great length of time,
force muſt be the conſequence, an application adequate to the iniſchief, and
ariſing out of the neceſſity of the caſe; for, force is only the difference be-
tween a ſuperior and ſubordinate juriſdiction. In the former, the whole
force of the legiſlature reſides collectively, and when it ceaſes to reſide the
whole connection is diffolved. It will, indeed, be to very little purpoſe
that we fit here enacting laws, and making reſolutions, if the inferior will
not obey them, or if we neither can nor care enforce them; for then, and
then, I ſay, of neceſſity the matter comes to the ſword. If the offspring are
grown too big and too reſolute to obey the parent, you muſt try which is the
ſtrongeſt, and exert all the powers of the mother-country to decide the
conteſt.
“ I am ſatisfied, notwithſtanding, that time and a wiſe and ſteady con-
duct may prevent thoſe 'extremities which would be fatal to both. I remem-
ber well when it was the violent humour of the times to decry ſtanding
armies and garriſons, as dangerous and incompatible with the liberty of the
ſubject. Nothing would do but a regular militia. The militia are embo-
died; they march, and, no ſooner was the militia-law thus put into execu-
tion, but it was then ſaid to be an intolerable burthen upon the ſubject, and
that it would fall, ſooner or later, into the hands of the crown.
That was
the language, and inany counties petitioned againſt it. This may be the caſe
with the colonies. In many places they begin already to feel the effects of their
reſiſtance to government. Intereſt very ſoon divides mercantile people ; and,
although there may be ſome mad, enthuſiaſtic, or ill-deſigning people in the
colonies, yet I am convinced that the greateſt bulk, who have under-
ſtanding and property, are ſtill well-affected to the mother-country. You
have, my lords, many friends ſtill in the colonies; and take care that you
do not, by abdicating your own authority, deſert them and yourſelves, and
loſe them for ever.
“ In all popular tumults the worſt men bear the fway at firſt. Moderate
and good men are often ſilent for fear or modeſty; who, in due time, may
declare themſelves. Thoſe who have any property to loſe are ſufficiently
alarmed already at the progreſs of theſe public violences and violations, to
which every man's dwelling, perſon, and property, are hourly expoſed.
Numbers of ſuch valuable men and good ſubjects are ready and willing to
K k
declars.
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THE LIFE OF
declare themſelves for the ſupport of government in due time, if government
does not fling away its own authority.
My lords, the parliament of Great Britain has its rights over the colo-
nies; but it may abdicate its rights.
- There was a thing which I forgot to mention; I mean, thé manuſcript
quoted by the noble lord. He tells you, that it is there ſaid, that, if
the act concerning Ireland had paſſed, the parliament might have ab-
dicated its rights as to Ireland. In the firſt place, I heartily wiſh, my lords,
that Ireland had not been named at a time when that country is of a temper
and in a ſituation ſo difficult to be governed ; and when we have already here
ſo much weight upon our hands, encumbered with the extenſiveneſs, variety,
and importance, of ſo many objects in a vaſt and too buſy empire ; and the
national ſyſtem ſhattered and exhauſted by a long, bloody, and expenſive
war, but more ſo hy our diviſions at home, and a fluctuation of councils.
I wiſh Ireland therefore never had been named.
“ I pay as much reſpect as any man to the memory of lord chief juſtice Hale;
but I did not know that he had ever written upon the ſubject; and I differ very
much froin thinking with the noble lord, that this manuſcript ought to be
publiſhed ; ſo far am I from it, that I wiſh the manuſeript had never been
named; for, Ireland is too tender a ſubject to be touched. The caſe of Ire-
land is as different as poſſible from that of our colonies. Ireland was a con-
quered country; it had its pacla conventa, and its regalia. But to what
pur-
poſe is it to mention the manuſcript? It is but the opinion of one man.
When it was written, or for what particular object it was written, does not
appear. It might' poſſibly be only a work of youth, or an exerciſe of the
underſtanding, in ſounding and trying a queſtion problematically. All peo-
ple, when they firſt enter profeſſions, make their collections pretty early in
life ; and the manuſcript may be of that fort. However, be it what it may,
the opinion is but problematical ; for, the act to which the writer refers never
paſſed, and lord Hale only ſaid, that, if it had paſſed, the parliament might
have abdicated their right.
But, my lords, I ſhall inake this application of it. You may abdicate
your right over the colonies. Take care, my lords, how you do ſo; for, ſuch an
act will be irrevocable. Proceed then, my lords, with ſpirit and firmneſs ;
and, when you ſhall have eſtabliſhed your authority, it will then be a time
to
.
251
WILLIAM EARL OF MANSFIELD.
to fhew your lenity. The Americans, as I ſaid before, are a very good peo-
ple, and I wiſh them exceeding well ; but they are heated and inflamed.
The noble lord who ſpoke before concluded with a prayer; I cannot end
better than by ſaying to it, amen; and in the words of Maurice prince
of Orange concerning the Hollanders, “God bleſs this induſtrious, frugal,
and well-meaning, but eaſily deluded people.”
Lord Camden roſe, and replied to the following effect :
" That the noble lord was much miſtaken concerning the manuſcript; that
he would readily ſhew it to him; and, for the preſent, he did aſſure him and
the reſt of their lordſhips, that it was a work, not of youth, but written by
lord Hale in the height and vigour of his underſtanding, with great delibe-
ration and ſelf-conviction of the truth of what he advanced."
1767.
In 1767, the cauſe between the city of London and the Diſen-
ters was brought to a concluſion in the Houſe of Lords.
The learned Dr. Philip Furneaux, in his Preface to the ſecond
Edition of Letters to the honorable Mr. Juſtice Blackſtone, con-
cerning his expoſition of the act of toleration, makes his grateful
acknowledgements to lord Mansfield in the following ſentences :
“ I think myſelf therefore ſingularly happy in the opportunity of publiſh-
ing an authentic copy of the celebrated ſpeech of lord Mansfield in the
Houſe of Lords in the Sheriffs caſe; a ſpeech which in point of arrange-
ment, weight of argument, perſpicuity, and energy, both of expreſfion and
ſentiment, liath ſeldom, I believe, been equalled on any occafion, unleſs by
the noble lord himſelf.
“ And I here make my moſt humble and grateful acknowledgements to
that truly great man, for the peculiar honor he hath done me, in permitting
me to convey to the world a copy of that admirable model of juridical and
ſenatorial eloquence.
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" I mentioned in the former edition of my letters having in my poſſeſſion a
copy, which by many very competent judges, who were preſent when the ſpeech
was delivered, and ſome of them members of the ſupreme court by whichi
the cauſe was determined, was thought to be not inaccurate; an imperfect
tranſcript of which having, entirely without my knowledge, appeared in an
evening-paper, I was deſirous, if I could obtain his lordſhip’s permiſſion, to
favour the world with a more faithful copy. I accordingly waited on his
lordſhip, and had my requeſt in the moſt condeſcending manner granted.
Indeed his lordſhip, when he delivered that incomparable ſpeech, had no
ņotes, and had afterwards taken no memorandums; but, having read the
copy, he declared his approbation of it.”
After this detail, it is preſumed that the reader will not be
diſpleaſed to find the ſpeech ſubjoined of lord Mansfield in the
Houſe of Lords, in the caſe of the Chamberlain of London againſt
Allen Evans, Eſq.
“ My Lords,
“ As I made the motion for taking the opinion of the
learned judges, and propoſed the queſtion your lordſhips have been pleaſed
to put to them; it may be expected that I ſhould make ſome farther mo-
tion, in conſequence of the opinions they have delivered.
• In moving for the opinion of the judges, I had two views. The firſt was,
that the houſe might have the benefit of their affiftance, in forming a right
judgement in this cauſe now before us, upon this writ of error. The next
was, that, the queſtion being fully diſcuſſed, the grounds of our judgement,
together with their exceptions, limitations, and reſtrictions, might be
clearly and certainly known, as a rule to be followed hereafter in all future
caſes of the like nature, and this determined me as to the manner of word-
ing the queſtion, “how far the defendant might, in the preſent cafe, be al-
lowed to plead his diſability in bar of the action brought againſt him.
“ The queſtion, thus worded, ſhews the point upon which your lordſhips
thought this cauſe turned ; and the anſwer neceſſarily fixes a criterion, under
what circumſtances, and by what perſons, ſuch a diſability may be pleaded
as an exemption from the penalty inflicted by this bye-law, upon thoſe who
decline taking upon them the office of ſheriff.
" In every view in which I have been able to conſider this matter., I think
this action cannot be fupported.
< If
WILLIAM EARL OF MANSFIELD.
253
/
1
“ If they rely on the Corporation-act, by the literal and expreſs proviſion
of that act no perſon can be elected, who hath not within a year taken the
facrament in the Church of England : The defendant hath not taken the fa-
crament within a year; he is not therefore elected. Here they fail.
“ If they ground it on the general deſign of the legiſlature in paſſing the
Corporation-act; the deſign was, to exclude Diffenters from office, and diſ-
able them from ſerving. For in thoſe times, when a ſpirit of Intolerance
prevailed, and ſevere meaſures were purſaed, the Diſſenters were reputed and
treated as perſons ill-affected and dangerous to the government: The defend-
ant therefore, a Diſſenter, and in the eye of this law a perſon dangerous and
ill-affected, is excluded from office, and difabled from ſerving. Here they
fail.
“ If they ground the action on their own bye-law ; ſince that bye-law
was profeffėdly made to procure fit and able perſons to ſerve the office,
and the defendant is not fit and able, being expreſſly diſabled by ſtatute
law ; here too they fail.
“ If they ground it on his diſability, being owing to a neglect of taking
the Sacrament at church, when he ought to have done it, the Toleration-
act having freed the Diffenters from all obligation to take the Sacrament at
church; the defendant is guilty of no neglect, no criminal neglect; here :
therefore they fail.
“ Theſe points, my lords, will appear clear and plair.
« The Corporation-act, pleaded by the defendant as rendering him in-
eligible to this office, and incapable of taking it upon him, was moſt cer-
tainly intended by the legiſlature to prohibit the perſons therein deſcribed
being elected to any corporation-offices, and to diſable them from taking
ſuch offices, upon them. The act had two parts: firſt, it appointed a com-
miſſion for turning out all that were at that time in office, who would not
comply with what was required as the condition of their continuance. Therein,
and even gave a power to turn them out though they ſhould comply; and
then it farther enacted, that, from the termination of that commiſlion,
perſon hereafter, who had not taken the facrament according to the rites of
the Church of England within one year preceding the time of ſuch election;
ſhould be placed, choſen, or elected, into any office of, or belonging to,
the government of any corporation ; and this was done, as it was expreſſly.
declared in the preamble to the act, in order to perpetuate the ſucceſſion in
5.
corpo
no
254
THE LIFE OF
corporations in the hands of perſons well-affected to the government in
church and ſtate.
“ It was not their deſign, as hath been ſaid, to bring ſuch perſons into
corporations by inducing them to take the Sacrament in the Church of En-
gland ;' the legiſlature did not mean to tempt perſons who were ill-affected
to the government occaſionally to conform. It was not, I ſay, their deſign
to bring them in; they could not truſt them, leſt they ſhould uſe the power
of their offices to diſtreſs and annoy the ſtate. And the reaſon is alleged in
the act itſelf; it was becauſe there were “evil ſpirits” amongſt them; and
they were afraid of evil ſpirits, and determined to keep them out; and
therefore they put it out of the power of electors to chooſe ſuch perſons,
and out of their power to ſerve ; and accordingly preſcribed a mark or
character, laid down a deſcription whereby they ſhould be known and diſ-
tinguiſhed by their conduct previous to ſuch election. Inſtead of appointing
a condition of their ſerving the office, reſulting from their future conduct,
or ſome conſequent action to be performed by them; they declared ſuch
perſons incapable of being choſen as had not taken the Sacrament in the
church within a year before ſuch election; and, without this mark of their
affection to the church, they could not be in office, and there could be no
election ; but, as the law then ſtood, no man could have pleaded this diſabi-
lity, reſulting from the Corporation-act, in bar of ſuch an action as is now
brought againſt the defendant; becauſe this diſability was owing to what
was then in the eye of the law a crime ; every man being required by the
canon-law, received and confirmed by the ſtatute-law, to take the facra-
ment in the church at leaſt once a year. The law would not permit a man-
to ſay, that he had not taken the ſacrament in the Church of England,
and he could not be allowed to plead it in bar of any action brought
againſt him.
“ But the caſe is quite altered ſince the act of Toleration. It is now no
crime for a man, who is within the deſcription of that act, to ſay he is a
Diffenter; nor is it any crime for him not to take the ſacrament according
to the rites of the Church of England ; nay the crime is, if he does it con-
trary to the dictates of his conſcience.
“ If it is a crime not to take the facrament at church, it muſt be a crime
by ſome law, which muſt be either coinmon or ſtatute law, the canon-law
enforcing it depending wholly upon the ſtatute-law. Now the ſtatute-law
is
WILLIAM EARL OF MANSFIELD.
255
}
is repealed as to perſons capable of pleading that they are ſo and ſo qua-
lified ; and therefore the canon-law is repealed with regard to thoſe perſons.
If it is a crime by common law, it muſt be ſo either by uſage or principle.
" There is no uſage or cuſtom, independent of poſitive slaw, which
makes nonconformity a crime.
“ The eternal principles of natural religion are part of the common law.
The eſſential principles of revealed religion are part of the common law; ſo
that any perſon reviling, ſubverting, or ridiculing them, may be proſecuted
at common law. But it cannot be ſhewn, from the principles of natural or
revealed religion, that, independent of poſitive law, temporal puniſhments
ought to be inflicted for mere opinions with reſpect to particular modes of
worſhip
“Perfecution for a fincere, though erroneous, conſcience, is not to be de-
duced from reaſon or the fitneſs of things; it can only ſtand upon poſitive
law.
- It hath been ſaid, that the Toleration-act only amounts to an ex-
emption of the Proteſtant Diflenters from the penalties of certain laws
therein particularly mentioned, and to nothing more ; that, if it had been
intended to bear, and to have any operation upon the Corporation-act, the
Corporation-act ought to have been mentioned therein ; and there ought to
have been ſome enacting clauſe, exempting Diflenters from proſecution in
conſequence of this act, and enabling them to plead their not having re-
ceived the facrament according to the rites of the Church of England in bar
of ſuch action. But this is much too limited and narrow a conception of
the Toleration-act, which amounts conſequentially to a great deal more than
this; and it hath conſequentially an inference and operation upon the Cor-
poration-act in particular. The Toleration-act renders that, which was illegal
before, now legal; the Diffenters way of worſhip is permitted and allowed
by this act; it is not only exempted from puniſhment, but rendered inno-
cent and lawful ; it is eſtabliſhed; it is put under the protection, and is not
merely under the connivance, of the law. In caſe thoſe who are appointed
by law to regiſter diffenting places of worſhip refuſe on any pretence to do
it, we muſt, upon application, ſend a Mandamus to compel them,
“ Now there cannot be plainer poſition, than that the law protects nothing
in that very reſpect in which it is in the eye of the law at the ſame time
a crime. Diſſenters, within the deſcription of the Toleration-act, are re-
ſtored to a legal conſideration and capacity; and a hundred conſequences
will
+
256
THE LIFE OF
+
will from thence follow which are not mentioned in the act. For inſtance,
previous to the Toleration-act, it was unlawful to deviſe any legacy for the
ſupport of diffenting congregations, or for the benefit of diffenting minif-
ters; for, the law knew no ſuch aſſemblies, and no ſuch perſons ; and ſuch a
deviſe was abſolutely void, being left to what the law called fuperftitious pur-
poſes. But will it be ſaid in any court in England, that ſuch a deviſe is not
a good and valid one now? And yet there is nothing ſaid of this in the
Toleration-act. By this act the Diſienters are freed not only from the pains
and penalties of the laws therein particularly ſpecified, but from all ecclefiaf-
tical cenſures, and from all penalty and puniſhment whatſoever, on account
of their nonconformity; which is allowed and protected by this act, and is
therefore in the eye of the law no longer a crime. Now, if the defendant may
ſay he is a diffenter, if the law doth not ſtop his mouth, if he may declare
tliat he hatlı not taken the facrament according to the rites of the church of
England, without being conſidered as criminal ; if, I ſay, his month is not
ſtopped by the law ; he may then plead his not having taken the facrament
according to the rites of the church of England, in bar of this action. It is
ſuch a diſability as doth not leave him liable to any action, or to any penalty
whatſoever.
66 It is indeed ſaid to be a maxim in law, that a man ſhall not be allowed
to diſable himſelf. But, when this maxin is applied to the preſent caſe, it is
laid down in too large a ſenſe ; when it is extended to comprehend a legal
diſability, it is taken in too great a latitude. What! ſhall not a man be
allowed to plead, that he is not fit and able? Theſe words are inſerted in
the bye-law, as the ground of making it; and in the Plaintiff's declaration, as
the ground of his action againſt the defendant : it is alleged, that the de-
fendant was fit and able, and that he refuſed to ſerve, not having a reaſon-
able excuſe. It is certain, and it is hereby in effect admitted, that if he is
not fit and able, and that if he hath a reaſonable excuſe, he may plead it in
Þar of this action. Surely he might plead, that he was not worth £.15,000.
provided that was really the caſe, as a circumſtance that would render him
not fit and able. And if the law allows him to ſay, that he hath not taken
the facrament according to the rites of the church of England, being within
the deſcription of the Toleration-act, he may plead that likewiſe to ſhew
that he is not fit and able: It is a reaſonable, it is a lawful excuſe.
My Lords, the meaning of this maxim, "That a man ſhall not diſable
himſelf," is ſolely this, That a man ſhall not diſable himſelf by his own wil-
ful
4
1
WILLIAM EARL OF MANSFIELD.
287
!
1
ful crime: and ſuch a diſability the law will not allow him to plead. If a
man contracts to ſell an eſtate to any perſon upon certain terms at ſuch a
time, and in the mean time he ſells it to another, he ſhall not be allowed to
ſay, "Sir, I cannot fulfil my contract; it is out of my power ; I have ſold iny
'eſtate to another. Such a plea would be no bar to an action, becauſe the act
of his ſelling it to another is the very breach of contract. So likewiſe a man
who hath promiſed marriage to one lady, and afterwards marries another, can-
not plead in bar of a proſecution from the firſt lady that he is already mar-
ried; becauſe his marrying the ſecond lady is the very breach of promiſe to
the firſt. A nian ſhall not be allowed to plead that he was drunk, in bar of
a criminal proſecution, though perhaps he was at the time as incapable of the
exerciſe of reaſon as if he had been inſane, becauſe his drunkenneſs was it-
ſelf a crime: he ſhall not be allowed to excuſe one crime by another. The
Roman ſoldier, who cut off his thumbs, was not ſuffered to plead his diſ-
ability for the ſervice, to procure his diſiniſſion with impunity: becauſe his
incapacity was deſignedly brought on him by his own wilful fault. And I am
glad to obſerve ſo good an agreement among the judges upon this point, who
have ſtated it with great preciſion and clearneſs.
6. When it was ſaid therefore that “a man cannot plead his crime, in ex-
cuſe for not doing what he is by law required to do,' it only amounts to this,
that he cannot plead in excuſe what, when pleaded, is no excuſe : but there
is not in this the ſhadow of an objection to his pleading what is an excuſe,
pleading a legal diſqualification. If he is nominated to be a juſtice of the
peace, he may fay, I cannot be a juſtice of the peace, for I have not an
hundred pounds a-year. In like manner a diffenter may plead, I have not
qualified, and I cannot qualify, and am not obliged to qualify; and you
have no right to fine me for not ſerving.
It hath been ſaid, that 'the King hath a right to the ſervice of all his
ſubjects. And this aſſertion is very true, provided it be properly qualified.
For ſurely, againſt the operation of this general right in particular caſes, a
man may plead a natural or civil diſability. May not a man plead, that he
was upon the high ſeas? May not idiocy or lunacy be pleaded ? which
are natural diſabilities : or a judgement of a court of law ? and much more a
judgement of parliament? which are civil diſabilities.
LI
65 It
.
1
258
THE LIFE OF
66 It hath been ſaid to be a maxim that no man can plead, his being a
lunatic, to avoid a deed executed, or excuſe an act done, at that time;
becauſe, it is ſaid, if he was a lunatic he could not remember any action
he did during the period of his inſanity:;' and this was doctrine formerly laid.
down by fome judges: but I am glad to find, that of late it hath been gene-
rally exploded; for, the reaſon aſſigned for it is, in my opinion, wholly in-
ſufficient to ſupport it; becauſe, though he could not remember what paſſed
during his inſanity, yet he might juſtly ſay, if he ever executed ſuch a deed,
or did ſuch an action, it muſt have been during his confinement or lunacy 3 :
for he did not do it either before or ſince that time.
66 As to the caſe in which a man's plea, of inſanity was actually ſet aſide;
it was nothing more than this : it was when they pleaded ore tenus ; the man
pleaded, that he were at the time out of his fenfes. It was replied, How do
you know that you was out of your ſenſes? No man that is ſo knows him-
ſelf to be fo. And accordingly his plea was upon this quibble ſet aſide; not
becauſe it was a valid one, if he was out of his ſenſes; but becauſe they con-
cluded he was not out of his fenfes. If he had alleged, that he was at that:
time confined, being apprehended to be out of his ſenſes; no advantage
could have been taken of his manner of expreſſing himſelf; and his plea muſt
have been allowed to be good.
“As to Larwood's cafe, he was not allowed the benefit of the Toleration-
act, becauſe he did not plead it. If he had inſiſted on his right to the bene-
fit of it in his plea, the judgement muſt have been different.
“ His inſerting it in his replication was not allowed, not becauſe it was not
an allegation that would have excuſed him, if it had been originally taken no-
tice of in his plea, but becauſe its being only mentioned afterwards was-a de-
parture from his plea.
" In the caſe of the mayor of Guilford, the Tolération-act was pleaded,
the plea was allowed good, the diſability being eſteemed a lawful one ; and
the judgement was right.
“ And here the defendant hath likewiſe inſiſted on his right to the benefit
of the Toleration-act in his plea; he faith he is bona fide a difſenter, within
the deſcription of the Toleration-act ; that he hath taken the oaths, and fub-
ſcribed the declaration, required by that act, to fhew that he is not a Popiſh
recuſant; that he hath never received the facrament according to the rights
of the Church of England, and that he cannot in conſcience do it ; and that
for
2
WILLIAM EARL OF MANSFIELD.
259
for more than fifty years paſt he hath not been preſent at church at the cele-
bration of the eſtabliſhed worſhip, but hath conſtantly received the ſacrament
and attended Divine Service among the Proteſtant Diffenters; and theſe
facts are not denied by the plaintiff, though they might eaſily have been tra-
verſed; and it was incumbent upon them to have done it, if they had not
known they ſhould certainly fail in it. There can be no doubt therefore
that the defendant is a Diffenter, an honeſt conſcientious Diffenter; and
no conſcientious Diſfenter can take the ſacrament at church : the defendant
faith he cannot do it, and he is not obliged to do it. And as this is the
caſe, as the law allows him to ſay this, as it hath not ſtopped his mouth;
the plea which he makes is a lawful plea, his diſability being through no
crime or fault of his own ; I ſay, he is diſabled by act of parliament, with-
out the concurrence or intervention of any fault or crime of his own; and
therefore he may plead this diſability in bar of the preſent action.
6. The caſe of Atheiſts and Infidels' is out of the preſent queſtion ; and
they come not within the deſcription of the Toleration-act. And this is the
ſole point to be enquired into, in all caſes of the like nature with that of the
defendant, who here pleads the Toleration-act; is the nan bona fide a Dif-
ſenter within the deſcription of that act ? If not, he cannot plead his diſabi-
lity in conſequence of his not having taken the ſacrament in the Church of
England ; if he is, he inay lawfully and with effect plead it in bar of ſuch
an action ; and the queſtion, on which this diſtinction is grounded, muſt be
tried by a jury.
“ It hath been ſaid, that, this being a matter between God and a man's
own conſcience, it cannot come under the cognizance of a jury;' but cer-
tainly it may; and, though God alone is the abſolute judge of a man's reli-
gious profeſſion, and of his conſcience, yet there are ſome marks even of
fincerity; among which there is none more certain than conſiſtency.
Surely a man's fincerity may be judged of by overt-acts; it is a juſt and ex-
cellent maxim, which will hold good in this as in all other caſes, by their
fruits
ye
ſhall know them.' Do they, I do not ſay go to meeting now and
then, but do they frequent the meeting-houſe? Do they join generally and
ſtatedly in Divine Worſhip with Diffenting Congregations ? Whether they
do, or not, may be aſcertained by their neighbours, and by thoſe who fre-
quent the ſame places of worſhip. In caſe a man hath occaſionally con-
formed for the ſake of places of truſt and profit; in that caſe, I imagine, a
jury would not heſitate in their verdict. If a man then alleges he is a Dif-
L 1 2
fenter,
260
THE LIFE OF
1
fenter, and claims the protection and the advantages of the Toleration-act,
a jury may juſtly find that he is not a Diſſenter within the deſcription of the
Toleration-act, ſo far as to render his diſability a lawful one. If he takes the
facrament for his intereft, the jury may fairly conclude that this ſcruple os
conſcience is' a falſe pretence when ſet up to avoid a burthen.
"The defendant in the preſent caſe pleads, that he is a Diſſenter within
the deſcription of the Toleration-act; that he hath not taken the ſacrameno
in the Church of England within one year preceding the time of his ſup-
poſed election, nor ever in his whole life; and that he cannot in conſcience
do it.
" Conſcience is not controulable by human laws, nor amenable to human
tribunals. Perſecution, or attempts to force conſcience, will never produce
conviction, and are only calculated to make hypocrites or martyrs.
“ My lords, there never was a ſingle inſtance, from the Saxon times down
to our own, in which a man was ever puniſhed for erroneous opinions con-
cerning rites or modes of worſhip, but upon ſome poſitive law. The com-
mon law of England, which is only common reaſon or uſage, knows of no
proſecution for mere opinions : for Atheiſm, Blaſphemy, and reviling the
Chriſtian religion, there have been inſtances of perſons proſecuted and pu-
niſhed
upon
the coinmon law; but bare nonconformity is no fin by the
common law; and all poſitive laws inflicting any pains or penalties for non-
confirmity to the eſtabliſhed rites and inodes, are repealed by the act of
Toleration; and Diſſenters are thereby exempted from all ecclefiaftical cen-
fures.
" What bloodſhed and confuſion have been occaſioned, from the reign of
Henry the Fourth, when the firſt penal ſtatutes were enacted, down to the
Revolution in this kingdom, by laws made to force-conſcience. There is
nothing certainly more unreaſonable, more inconſiſtent with the rights of
human nature, more contrary to the ſpirit and precepts of the Chriſtian reli-
gion, more iniquitous and unjuſt, more impolitic, than perſecution. It is
againſt Natural Religion, Revealed Religion, and ſound Policy.
“Sad experience, and a large mind, taught that great man, the Prefident De
Thou, this doctrine. Let any man read the many admirable things which,
though a Papift, he hath dared to advance upon the ſubject, in the dedication
of his Hiſtory to Harry the Fourth of France (which I never read without rap-
ture); and he will be fully convinced, not only how cruel, but how im-
politic, it is to proſecute for religious opinions, I am ſorry, that of late his
6
country
WILLIAM EARL OF MANSFIELD.
261
1
countrymen have begun to open their eyes, ſee their error, and adopt his
ſentiments. I ſhould not have broken rny heart (I hope I may ſay ſo without
breach of Chriſtian charity) if France had continued to cheriſh the Jeſuits,
and to perſecute the Huguenots.
“ There was no occaſion to revoke the edict of Nantz; the Jeſuits needed
only to have adviſed a plan fimilar to what is contended for in the preſent
caſe; make a law to render them incapable of office ; make another to pu-
niſh them for not ſerving. If they accept, puniſh them (for, it is admitted
on all hands, that the defendant, in the cauſe before your lordſhips is pro-
ſecutable for taking the office upon him). If they accept, puniſh them; if
they refuſe, puniſh them ; if they ſay yes, puniſh them; if they ſay no,
puniſh them. My lords, this is a moſt exquiſite dilemma, from which
there is no eſcaping ; it is a trap a man cannot get out of; it is as bad perſe-
cution as that of Procruſtes ; if they are too ſhort, ſtretch them ; if they
are too long, lop them. Small would have been their conſolation to have
been gravely told, the edict of Nantz is kept inviolable ; you have the full
benefit of that act of Toleration, you may take the ſacrament in your own
way with impunity; you are not compelled to go to maſs. Was this caſe
but told in the City of London, as of a proceeding in France, how would
they exclaim againſt the Jeſuitical diſtinction ? And yet in truth it comes
from themſelves; the Jeſuits never thought of it. When they meant to
perſecute by their act of Toleration, the edict of Nantz was repealed.
“ This bye-law, by which the Diſſenters are to be reduced to this
wretched dilemma, is a bye-law of the city, a local corporation, contrary
to an act of parliament, which is the law of the land; a modern bye-law,
of very modern date, made long ſince the Corporation-act, long ſince the
Toleration-act, in the face of them; for they knew theſe laws were in being,
It was made in ſome year in the reign of the late king, I forget which; but
it was made about the time of building the manfion-houſe. Now, if it could
be ſuppoſed the city have a power of making ſuch a bye-law it would
entirely ſubrert the Teleration-act, the deſign of which was to exempt the
Diſſenters from all penalties; for by ſuch a bye-law they have it in their
power to make every Diſfenter pay a fine of ſix hundred pounds, or any
ſum they pleaſe ; for it amounts to that.
“ The profeſſed deſign of making this bye-law was to get fit and able per-
fons to ſerve the office; and the plaintiff ſets forth in his declaration, that, if
the Diffenters are excluded, they ſhall want fit and able perſons to ſerve the
office;
262
THE LIFE OF
office ; but, were I to deliver my own ſuſpicion, it would be, that they did
not ſo much wiſh for their ſervices as for their fines. Diffenters have been
appointed to this office, one who was blind, another who was bed-ridden ;
not, I ſuppoſe, on account of their being fit and able to ſerve the office.
No; they were diſabled both by nature and by law.
“We had a caſe lately in the courts below of a perſon choſen mayor of a
corporation while he was beyond the ſeas with his majeſty's troops in Ame-
rica, and they knew him to be ſo. Did they want him to ſerve the office ?
No; it was impoſſible. But they had a mind to continue the fornier mayor
a year longer, and to have a pretence for ſetting aſide him who was now
choſen, on all future occaſions, as having been elected before.
- In the cauſe before your lordſhips, the defendant was, by law, incapa-
ble at the time of his pretended election ; and it is my firm perſuaſion, that
he was choſen becauſe he was incapable. If he had been capable, he had
not been choſen; for they did not want him to ſerve the office. They choſe
him becauſe, without a breach of the law, and an uſurpation on the crown,
he could not ſerve the office. They choſe him, that he might fall under the
penalty of their bye-law, made to ſerve a particular purpoſe; in oppoſition
to which, and to avoid the fine thereby impoſed, he hath pleaded a legal
diſability, grounded on two acts of parliament. As I amn of opinion that his
plea is good, I conclude with moving your lordſhips,
$6 That the judgement be affirmed."
1
The judgement was immediately affirmed, nemine contradicente;
and the entry in the Journal is in the following words:
“ Die Mercurii, 4° Februarii, 1767.
“ It is ordered and adjudged, by the lords ſpiritual and temporal in par-
liament aſſembled, That the judgement given by the commiſſioners' dele-
gates appointed to hear the errors in a judgement given in the ſheriff's court,
London, and affirmed by the court of Huſtings, reverſing the judgement
of the Sheriff's court and court of Huſtings, be, and the ſame is hereby, af-
firmed ; and that the record be remitted.
This
I
.
WILLIAM EARL OF MANSFIELD.
263
This great occaſion was not the firſt wherein lord Mansfield
intereſted himſelf in behalf of the Proteſtant Difſenters. In Ja-
nuary 1762, on a motion for a Mandamus, in the caſe of the
King againſt Barker and others, to the truſtees of a diſſenting
meeting-houſe at Plymouth, requiring them to admit a certain
perſon as paſtor, miniſter, or preacher there ; and on its being
very ſtrenuouſly oppoſed by part of the congregation and their:
counſel ; lord Mansfield took occaſion, firſt, to define the nature
of a Mandamus, declaring,
“ That it was a Prerogative-Writ, to the aid of which the ſubject is en-"
titled, upon a proper caſe previouſly ſhewn to the ſatisfaction of the court.
The original nature of the writ, “Nos A. B. debitam & feftinam juftitiam in
hac parte fiere volentes ut eft juſt um, proves that the court ought to aſſiſt by a
Mandamus upon reaſons of juſtice. It ought alſo to aſſiſt upon reaſons of
policy, to preſerve peace; order, and good government. It was introduced
to prevent diſorder, from a failure of juſtice and defect of police; therefore,
it ought to be uſed upon all occaſions where the law has eſtabliſhed no ſpe- -
cific remedy, and where in juſtice and good government there" ought to?
be one.
“Within the lat century it has been liberally interpoſed for the benefit :
of the fubject and advancement of juſtice.
“ The value of the matter, or the degree of its importance to the public
police, is not fcrupulouſly weighed. If there be a right and no other ſpecific
remedy, this ſhould not be denied.
“ Writs of Mandamus have been granted to admit lecturers, clerks, fextons,
and ſcavengers, &c. to reſtore an alderman to precedency, an attorney 'to.
practice in an inferior court, &c.
"Since the Act of Toleration, it ought to be extended to protect an en-
dowed paſtor of Proteſtant Difſenters, from analogy and the reaſon of the
thing.
“ The right itſelf being recent, there can be no direct äntient precedent; but.
every caſe of a lecturer, preacher, fchoolmaſter, curate, chaplain, is in :
point.
“ Here is a funktion with emoluments, and no fpecific legal remedy. The
right depends upon election, which intereſts all the voters,
5. The
!
264
THE LIFE OF
"The queſtion is of a nature to inflame men's paſſions. The refuſal to
try the election in a feigned iſſue, or proceed to a new election, proves a
determined purpoſe of violence. Should the court deny this remedy, the
congregation may be tempted to reſiſt violence by force. A diſpute who
ſhall preach Chriſtian charity' may well raiſe implacable feuds and animofi-
ties, in breach of the public peace, to the reproach of government, and the
ſcandal of religion. To deny this writ, would be putting Proteſtant Diſſen-
ters and their religious worſhip out of the protection of the law. This caſe
is entitled to that protection, and cannot have it in any other mode than by
granting this writ.”
The court unanimouſly ordered a mandamus to iſſue.
The celebrity of lord Mansfield's ſpeech in the houſe of lords
in the Douglas cauſe, in the year 1769, made a ſtrong impreſſion
on the minds of his hearers; and, conſidering the voluminous maſs
of evidence which had been brought forward, and engaged the
attention of the Houſe of Lords many days, the compreſſion of that
evidence and the conciſeneſs of his lordſhip's ſpeech may be con-
ſidered as ſome of its greateſt ornaments.
Lord Mansfield. “I muſt own that this cauſe before us is the greateſt and
noſt important that occurs to me; it is no leſs than an attack upon the vir-
tue and honor of a lady of the firſt quality, in order to diſpoſſeſs a young
man of an eminent fortune, reduce him to beggary, ſtrip him of his birth-
right, declare him an alien and a foundling. I have Nept and waked upon
the ſubject, conſidered it upon my pillow, to the lofing of my natural reſt,
and, with all the judgemeut I was capable, have conſidered the various arti-
cles that make up this long and voluminous cauſe, upon which I am now to
give my opinion before your lordſhips.
" I apprehend that, in the matter before us, three things are to be confi-
dered. The ſituation of lady Jane before her delivery, at her delivery,
and after it was over ; to all which the Chancellor (lord Camden) has
ſpoken with great propriety. It is proved beyond a poffibility of doubt,
that ſhe became pregnant in October 1747, at the age of forty-nine years, a
thing
WILLIAM EARL OF MANSFIELD.
265
thing far from being uncommon, as is atteſted by phyſicians of the firſt
rank, and confirmed by daily experience; and that in the month of July
ſhe was delivered of twins, one of whom died, the other is ſtill alive: he
has been preſented to the world, by fir John Steward and lady Jane Douglas,
as their ſon; nor can he be wreſted from the hands of his parents, unleſs
ſome other had, in their lifetime, claimed him as their child in a legal and
juſtifiable way.
.66 This action, my lords, did not lie againſt the appellant as an impoſtor ;
for, an impoſtor, in the ſenſe of the law, is a perſon who wilfully and know-
ingly pretends to be a different one from what he really is, in order to de-..
fraud another, and to impoſe, under a fictitious name, upon the public. If
any be an iir poſtor, it muſt have been lady Jane, whom they ought to have
proſecuted in her lifetime, and not at a diſtance of nine years after her death.
The method of diſcovering an impoſtor is to bring his accomplice to the
court before which the impoſtor was arraigned ; and if, after a fair trial, the
accuſed perſon be found guilty, let him take the conſequences thereof; but
this the reſpondents have neglected. The appellant has been, for five years,
four months, and twelve days, the acknowledged ſon of lady Jane Douglas,
and for thirteen years and two months the ſon of fir John Steward, before
any attempt was made to rob him of his parents, his birth-right, and
his all.
166 As the lord chancellor has anticipated much of what I intended to ſpeak
upon this ſubject, ſo I ſhall only touch at the ſituation and character of the
deceaſed, whom I remember in the year 1750 to have been in the moſt de-
plorable circumſtances. She came to me, I being ſolicitor general, in a very
deſtitute condition, and yet her modeſty would not ſuffer her to complain.
The noble woman was every way viſible, even under the preſſure of want
and of poverty. Her viſage and appearance were more powerful advocates
than her voice ; and yet I was afraid to offer her relief, for fear of being
conſtructed to proffer her an indignity. In this manner ſhe came twice to
my houſe before I knew her real neceſſities, to relieve which now was my
aim. I ſpoke to Mr. Pelham in her favor, told him of her fituation with
regard to her brother the duke of Douglas, and of her preſent ſtraits and
difficulties. Mr. Pelham without delay laid the matter before the king; the
duke of Newcaſtle, then being at Hanover, was written to; he ſeconded the
ſolicitation of his brother. His majeſty immediately granted her three hun-
M m
dred
266
THE LIFE OF
dred pounds per annum out of his privy purſe, and Mr. Pelham was fo
gene.
rous as to order an hundred and fifty pounds of the money to be inſtantly
paid. I can aſſure your lordhhips, that I never did trouble his majeſty for
any other. Lady Jane Douglas was the firſt and laſt who ever had a penſion
by my means. At that time I looked upon her to be a lady of the ſtricteſt
honor and integrity, and to have the deepeſt ſenſe of the grandeur of the
family from whence ſhe was ſprung; a family, conſpicuouſly great in Scot-
land for a thouſand years paſt; a family, whoſe numerous branches have
ſpread over Europe ; they have frequently intermarried with the blood royal ;
and ſhe herſelf was deſcended from Henry VII. I took care that his late ma-
jeſty ſhould be made acquainted with her family and name, to the intent
that, though ſhe was married to colonel Steward, a diſſipated and licentious
man, and who had been in the Rebellion in 1715, yet he would paſs it
over, as ſhe was of a race who had always been eminently loyal, her bro-
ther having charged as a volunteer at the head of the cavalry in the year
1715, when his coufin the Earl of Forfar died like a hero in defence of
the government; and that his grace had, in the year 1745, treated the re-
bels and their leader with contempt and ridicule; and indeed his majeſty,
from his wonted magnanimity, ſpoke nothing of her huſband, but treated
her with all reſpect due to a noble woman of the firſt rank and quality ;
one who carried all the appearance of a perſon habituated to derotion,
and for a number of years trained up in the ſchool of adverſity and diſap-
pointment.
"Is it poſſible, my lords, to imagine that a woman of ſuch a family, of ſuch
high honor, and who had a real ſenſe of her own dignity, could be ſo baſe
as to impoſe falſe children upon the world?
the world? Would ſhe have owned them
on every occaſion ? Was ever mother more affected for the death of a
child than ſhe was for that of Sholto, the younger of her ſons ?
« Will
you,' ſaid ſhe, “indulge me to ſpeak of my ſon ?' and cried out with great
vehemency, "O Sholto! Sholto! my ſon Sholto !' And after ſpeaking of
his death, ſhe ſaid, “She thanked God that her ſon Archie was alive.
What, ſaid ſhe, would the enemies of me and my children ſay, if they ſaw
me lying in the duſt of death, upon account of the death of my ſon Sholto ?
Would they have any ſtronger proof of their being my children than my
dying for them? She ſtill inſiſted, that the ſhock ſhe received by the
death of Sholto, and other griefs ſhe had met with, were ſo ſevere upon her,
that
WILLIAM EARL OF MANSFIELD.
267
black and atrocious! To carry
that ſhe was perfectly perſuaded ſhe would never recover, but conſidered her-
ſelf as a dying woman, and one who was ſoon to appear in the preſence of
Almighty God, and to whom ſhe muſt anſwer. She declared, that the chil-
dren Archie and Sholto were born of her body; and that there was one
bleſſing of which her enemies could not deprive her, which was her inno-
cency, and that ſhe could pray to Almighty God for the life of her other
ſon ; and that ſhe was not afraid for him, for that God Almighty would
take care of him! And what is remarkable, the witneſs, Mary Macrabie,
obſerved, that the grief for the loſs of the child grew upon her. Would
The, my lords, have bleffed her ſurviving child on her death-bed? Would
The have died with a lie in her mouth, and perjury in her right hand ? Cha-
rity, that thinketh no evil, will not ſuffer me for a moment to harbour an
opinion fo cruel and prepoſterous; or can we ſuppoſe that two people, who
had not wherewith to ſupport themſelves, would be folicitous, and ſhew all
the tenderneſs of parents towards the children of creatures, who, forgetting
the firſt principle of inſtinct and humanity, had fold their children to peo-
ple whom they did not ſo much as know by their names? The act of Jo-
feph's brethren, in felling him, is repreſented as wicked and unnatural ; but
indeed the crime of Madam Mignon and of Madam Sanry is ſtill more
glas had acted this out of a principle of revenge toward the family of Ha-
milton; yet Sir John Steward had no occaſion to do ſo, much leſs continue
the vindictive farce after her death, eſpecially when married to another
ſpouſe. And here we may ſee fir John as much a parent to the appellant as
lady Jane; he was every way fond of him; it is in evidence: I know it to
be true. My ſiſter and I have frequently been at Mr. Murray's with them,
and were always delighted with the care we obſerved. No mortal harboured
any thoughts of their being falſe children at that time, I mean in 1750 and
1751. Every perſon looked upon them as the children of lady Jane Douglas
and of colonel Steward. The counteſs of Eglington, lord Lindores, and
many others, have, upon oath, declared the ſame thing.
“ No ſooner does the colonel hear of che aſperfions raiſed at Douglas
caſtle, and of Mr. Archibald Steward's ſwearing, that count Douglas, a
French nobleman, had informed the duke of Douglas that they had been
brought out of an hoſpital, than he returned an anſwer to Mr. Lock, who
gave the intelligence in a letter to Mrs. Hewitt, and wrote to him in all the
M m 2
а.
ter1225
268
THE LIFE OF:
.
terms of a inan of ſpirit, cordially intereſted in the welfare-and happineſs of
his fon; but he and lady Jane begged the favor of chevalier Douglas a French
gentleman and officer, then at London, to acquaint his coufin the count
with what was ſaid of him. This the chevalier undertook, and fulfilled with
the fidelity of a man of honor; and the count, in conſequence of the appli-.
cation, wrote a letter, not only to lady Jane, but to her brother the duke,
in all the language of politeneſs and humanity diſowning what was ſaid.
of himn.
“ But, my Lords, the duke of Douglas himſelf was fully ſatisfied of the
appellant's being the real ſon of his ſiſter lady. Jane ; for, on beginning to be
known, after his marriage, and to reliſh the pleaſures of ſocial life, he be-
came very inquiſitive about the ſize, ſhape, and complexion, of the ap-
pellant, and if he appeared to be a ſmart boys' He employed Sir William
Douglas and others in whom he could confide, to enquire of Mrs. Hewitt,
lady Jane’s companion, and of Euphemia Caw and Iſabel Walker the two
maid-ſervants who had lived with them when abroad, and obſerved their
conduct in the moſt unguarded moments, concerning the birth of the chil-
dren;
he even ſearched into the characters of theſe; and it appears froin the
depoſitions of clergymen and gentlemen of the firſt rank in that country,
that they were women worthy. to be believed. He even went in perſon to
viſit Mrs. Hewitt, converſed with her in the preſence of his gentleman, Mr.
Greenfheils, concerning, his ſiſter's delivery ; and the accounts given by
theſe, like the radii of a circle, all pointing to one and the ſame centre,
confirming the reality of lady Jane being the mother of the young gentle-
man; he was fatisfied, acknowledged him for his nephew, and left him his.
heir.
" If the duke.of Douglas, after ſo ſerious an enquiry, was convinced, why
ſhould not we? 'Tis true, his Grace has ſometimes expreſſed himſelf warmly
againſt the ſurname of. Hamilton, even in lady Jane's life-time, but never
ſo warmly as to prefer a ſuppoſititious-child to the duke of that name ; for he
only declares, 'that, if he thought the children were lady Jane's, he would
never ſettle his eſtate on the family of Hamilton ; nor did he, till after de-
tecting the frauds and conſpiracies that had been ſo long and ſo induſtriouſly
carried on againſt his ſiſter and himſelf, make any alteration in his firſt
Tettleinent.
66 After
}
WILLIAM EARL OF MANSFIELD.
269
<< After the duke's death, the appellant was ſerved heir to his uncle, ac-
cording to the form preſcribed by the law of Scotland, upon uncontroverted
evidence of his being the ſon of lady Jane Douglas, takes poſſeſſion of the
eſtate, and is virtually acknowledged heir by the earl of Selkirk, and by
the duke of Hamilton's guardians themſelves ; for, theſe enter actions before
the Court of Seſſion, declaring their right to certain parts of the eſtates upon
ſome antient claims which the judges there declared to be groundleſs ; but in
the whole action there was not the leaſt intimation that Mr. Douglas was
not the ſon of lady Jane.
" It is needleſs to trouble your lordſhip’s with the conduct of the Re-
ſpondent’s-guardians at Paris, and elſewhere upon the continent. Nothing
has been difcovered that could throw the leaſt blemiſh: upon the honour of
Lady Jane Douglas, or colonel Steward ; they have, indeed, proved her
ſtraits there, and his impriſonment here ; but both theſe circumſtances carry
a farther confirmation that -the appellant is their fon; for, in every letter
that paſſed between them, the children are named with a tenderneſs ſcarce
to be believed ; whereas, had they been counterfeits, as pretended, they
would have been apt to upbraid one another for an act ſo manifeſtly tending
to involve them in their ſufferings.. Suppoſe, my Lords, that Mignon the
glaſs-manufacturer's-wife, the pretended mother of Mr. Douglas, had de-
poſed the ſame things in lady Jane's preſence, as ſhe has ſo long after her
death? From her evidence it appears, that ſhe had never ſeen lady Jane ;
by her words, both in private and public; The feems to deſerve. no manner
of credit; the oath of Mr. Murray, a principal witneſs, has deſtroyed every
thing ſhe has aſſerted." The ſame thing might be ſaid of Sanry, the rope :
dancer's ſpouſe, whoſe child's rupture we were earneſtly deſired to keep in
view, to prove him to be the identical Sholto, the younger of the twins;
and now evidence is offered that the child Sholto had no rupture, but was
as found as any within theſe walls. Your Lordſhips have been told, and I
believe with great truth, that a gentleman, ſhocked at the affertion, had
written to the council, that the influence ariſing from fo falſe a ſuggeſtion
might be prevented. I alway rejoice to hear truth, which is the ornament of
criticiſm, and the poliſhed gem that decorates a bar.
“ The ſcrutiny. in France, followed by an action in Scotland, produced
two things never intended by them: it brought forth a ſtriking acknow-
ledgement of the appellant, by his father John Steward, as is manifeſt froin
the bond of proviſion read at your lordſhips bar. Sir John openly acknow-
ledged..
:
22
-70
THE LIFE OF
1
1
ledged him, before the Court of Seſſion, in the midſt of a crowded inulti-
tude, and when labouring under a load of anguiſh and pain ; nay, when by
himſelf, he folemnly declared before God, in the preſence of a juſtice of the
peace and two clergymen, that the young gentleman was his ſon. It like-
wiſe eſtabliſhed the character of lady Jane ; for, on examining the proof ob-
tained through the vigilance of the dutcheſs of Douglas, lady Jane's reputa-
tion is unſullied and great; all who had the honor of being known to her
declared, that her behaviour attracted univerſal eſteem ; and madam Marie
Sophi Gilliſen, a maiden lady with whom ſhe lodged ſeveral months, depofes,
* that lady Jane was very amiable, and gentle as an angel.' It farther prov-
ed, that the elder child, the appellant, was the exact picture of the father ;
and the child Sholto as like lady Jane as ever a child was like its mother.
“I have always conſidered likeneſs as an argument of a child's being the
ſon of a parent, and the rather as the diſtinction between individuals in the
hunian ſpecies is more diſcernible than in other animals. A man may ſur-
vey ten thouſand people before he ſees two faces perfectly alike ;' and, in an
army
of an hundred thouſand men, every one may be known from another.
If there ſhould be a likeneſs of features, there may be a diſcriminancy of
voice, a difference in the geſture, the ſmile, and various other things ;
whereas a family-likeneſs runs generally through all theſe ; for in every thing
there is a reſemblance, as of features, fize, attitude, and action ; and here
it is a queſtion, whether the appellant moſt reſeinbled his father Sir John, or
tha younger, Sholto, reſembled his mother lady Jane? Many witneſſes have
ſworn to Mr. Douglas being of the ſame form and make of body as his father;
hie has been known to be the ſon of colonel Steward, by perſons who had
never ſeen him before ; and is ſo like his elder brother, the preſent Sir John
Steward, that, except by their age, it would be hard to diſtinguiſh the one
from the other.
“ If Sir John Steward, the moſt artleſs of mankind, was actor in the en-
levement of Mignon and Sanry's children, he did in a few days what the
acuteſt genius could not accompliſh for years. He found two children; the
one the finiſhed model of himſelf, and the other the exact picture in mi-
niature of lady Jane. It ſeens nature had implanted in the children, what is
not in the parents ; for, it appears in proof, that in ſize, complexion, ſtature,
attitude, colour of the hair and eyes, nay, and in every other thing, Mignon
and his wife, Sanry and his ſpouſe, were toto cælo different from, and unlike
to,
>
WILLIAM EARL OF MANSFIELD.
271
to, Sir John Steward and lady Jane Douglas. Among eleven black rabbits
there will ſcarce be found one to produce a white one.
« The Reſpondent's cauſe has been well ſupported by the ingenuity of its
managers, and great ſtreſs las been laid upon the not finding out the houſe
where Madam La Brun lived, and where the delivery was effected; but this
is no way ſtriking, if we conſider that houſes are frequently pulled down to
make way for ſtreets, and houſes are built upon the ground where ſtreets run
before: of this there are daily examples in this metropolis. However, we
need enter into no arguments of this kind, as there is a poſitive evidence
before us, nor is it poſlible to credit the witneſſes, ſome of them of a ſacred
character, when they ſpeak of lady Jane's virtues, provided we can believe
her to have been a woman of ſuch abandoned principles as to make a mock
of religion, a jeſt of the ſacrament, a ſcoff of the moſt ſolemn oaths, and to
ruſh, with a lie in her mouth, and perjury in her right-liand, into the preſence:
of the Judge of all, who at önce ſees the whole heart of man, and from whoſe
all-diſcerning eye no ſecrefy can ſcreen, before whom neither craft nor artifice
can avail, nor yet the ingenuity and wit of lawyers can leſſen or exculpate.
On all which accounts I am for finding the appellant to be the ſon of lady
Jane Douglas."
The earl of Chatham, on the iſt of May, 1770, preſented to
the Houſe a bill “ for reverſing the adjudications of the Houſe of
Commons, whereby John Wilkes, Eſq. has been adjudged inca-
pable of being elected a member to ſerve in this preſent parlia-
ment, and the freeholders of the county of Middleſex have been
deprived of one of their legal repreſentatives.” This bill having
been read the firſt time, and a motion made that it fhould be read
a ſecond time on Thurſday then next-the earls of Temple and
Chatham ſupported the motion ; which called up'Lord Mans-
field.
“ My Lords,
“ In this debate, though it has been already ſpoken to
with great eloquence and perſpicuity, I cannot content myſelf with only
giving a ſilent vote ; I fëel myſelf under a ſtrong neceſſity of ſaying fome-
thing more; the ſubject requires it, and, though the hour is late (it being
then near ten o'clock), I ſhall demand your indulgence, while I offer my
ſentiments on this motion.
65 What
272
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THE LIFE OF
1
“What part I took previouſly in this matter ſhall ever remain with mya
ſelf. I have, I muſt confeſs, depoſited it in the breaſt of one of the Royal
family; but, reſting ſecure in that confidence, I ſhall never declare it to
any other.
66 I am ſure, my lords, many of you muſt remember, from your reading
and experience, ſeveral perſons expelled the Houſe of Commons without ever
this Houſe once pretending to interfere, or call in queſtion by what authority
they did ſo. I remember ſeveral myſelf (here his lordſhip quoted ſeveral
caſes with great ſtrength of memory); in all which, though moſt of the
candidates were ſure to be re-choſen, they never once applied, reſting con-
tented with the expulſatory power of the Houſe, as the only ſelf-ſufficient
dernier reſort of application.
66 It has been echoed on all fides, from the partizans of this motion, that
the Houſe of Commons acted illegally, in accepting colonel Luttrell, who
had but 296 votes, in preference to Mr. Wilkes, who had 1143 ; but this
is a miſtake of the groffeſt nature imaginable, and which nothing but the
intemperature of the people's zeal could poſſibly tranſport them to, as Mr.
Wilkes had been previouſly conſidered by the laws as an unqualified perſon
to repreſent the people in parliament; therefore it appears very plainly, that
colonel Luttrell had a very great majority, not leſs than 296, Mr. Wilkes
being conſidered as nobody in the eye of the law; conſequently colonel Lut-
trell had no legal oppofition.
" In all conteſted elections, where any of the parties think themſelves not
legally treated, I ſhould be glad to know to whom it is they generally re-
ſort? Is it to the freeholders of the borough, or the county, they would re-
preſent, or is it to the people at large ? Who cannot ſee at once the abſurdity
of ſuch a queſtion ? Who ſo ignorant of our laws, that cannot immediately
reply and ſay, it is to the Houſe of Commons, who are the only judges to
ndetermine every nicety of the laws of election, and from whom there is no
appeal after they have once given their determination?' All the freeholder
has to do is to determine on his object by giving him his vote. The ulti-
mate power lies with the Houſe of Commons, who is to judge of his being
a legal object of repreſentation in the ſeveral branches of his qualifications.
This, my lords, I believe is advancing no new doctrine, nor adding an iota
to the extenſion of the privilege of a member of the Houſe of Commons
more than what the conſtitution has long ago given him. Yet here is a cry
made
WILLIAM EARL OF MANSFIELD.
273
+
made in a caſe that directly applies to what I have been ſpeaking of, as if it
was illegal, arbitrary, and unprecedented.
" I don't remember, my lords, either in the courſe of my reading or obſer-
vation, ever to have known an inſtance of a perſon being re-choſen, after being
expelled, till the year 1711. Then, indeed, my memory ſerves me with a
caſe of fir Robert Walpole; he was expelled the Houſe of Commons, and
was afterwards re-choſen ; but this laſt event did not take place till the
meeting of the next parliament; and, during that interval, I find no debate.
about the illegality of his expulfion, no interference of the Houſe of Lords,
nor no addreſſes from the public to decry. that meaſure by a diſſolution of par-
liamento
“ Indeed, as for a precedent of one houſe interfering with the rules, or-
ders, or buſineſs of another, my memory does not ſerve me at preſent with
the recollection of a ſingle one. As to the caſe of Titus Oates, as men-
tioned by the noble lord in my eye, lord Chatham, he is very much miſta--
ken in regard to the mode; his was a trial in the King's Bench, which, on a
writ of error, the Houſe of Commons interfered in, and they had an au-
thority for ſo doing; a judge certainly may be miſtaken in point of law, the
wiſeſt and the beſt of us may be fo at times, and it reflects no diſcredit, on
the contrary it does particular honor, when he finds himſelf ſo miſtaken, to
reverſe his own decree; but for one houſe of parliament interfering with
the buſineſs, and reverſing the reſolutions of another, it is not only unpre-
cedented, but unconſtitutional to the laſt degree.
s“ But fuppoſe, my lords, that this houſe coincided with this motion ;
fuppoſe we all agreed nem. con. to repeal and reſcind the reſolutions of the
Houſe of Commons in regard to the. expulſion and incapacitation of Mr.
Wilkes; good God, what may be the conſequence! The people are violent.
enough already; and to have the ſuperior branch of legiſlation join them,
would be giving ſuch a public encouragement to their proceedings, that I
almoſt tremble,.. while I even ſuppoſe ſuch a ſcene of anarchy and confuſion.
“I remember, my lords, an anecdote of Roman Hiſtory, as told us by
that juſtly celebrated hiſtorian Livy. At a period when the people of Rome
thought their fenate were acting unconſtitutionally, they had formed a ſcheme
of giving them up into the hands of the enemy: determined on this opinion,
they were for ſome time waiting but for an opportunity; when one of their
leaders, on whoſe valour, wiſdom, and integrity, they had the laſt de-
pendance,
Nn
.
274
THE LIFE OF
pendance, diverted them from their intentions, by reminding them, that
by this revolution they might probably change for worſe maſters.' From
the inference that may be drawn from this anecdote, and for the reaſons I
have already mentioned to your lordſhips, I am againſt this bill.”
1
On the queſtion whether the bill ſhould be read a ſecond time,
the houſe divided. It was reſolved in the negative. Biſhop
Newton, in writing his own Life and Anecdotes, has expatiated
on, and conſidered the laſt ſpeech, as one of the moſt brilliant
and convincing which lord Mansfield ever delivered. Indeed he
aſſerts, that the ſecond reading was negatived without a diviſion.
i
Having travelled over a large ſpace of fertile legal ground in
this ſecond tour, or diviſion of the work, it is more than probable
that the generality of readers are, and that the young juriſpru-
dent particularly is, heartily diſpoſed to pauſe a little.
From the year 1756, when the honourable Mr. Murray was
appointed chief juitice, and created a peer of this realm, down
to the period of time at which we are now arrived, it muſt be
acknowledged that the elaborate arguments or ſpeeches of lord
Mansfield, in the courſe of twelve or thirteen years, ſtand unri-
valled, appear formidable, not only cum numero, ſed pondere.
The real difficulty to be obviated now is, by way of queſtion and
anſwer. How was it poſſible that amongſt the inceſſant hurry of
buſineſs, wherein the lord chief juſtice was engaged, and im-
merſed as it were, he ſhould be able to find time to prepare thoſe
elaborate arguments ? The anſwer will be beſt given in lord
Mansfield's own words. When his lordſhip had prepared the
brouillon of an argument, as he was pleaſed to call it, in the
great cauſe of Taylor verſus Horde, eſq. et alios, in the year
1757, he gave this good-humoured account of it in a letter to one
of his brothers on the bench: “ I am very impatient to diſcharge
myſelf entirely of it. While the company is at cards, I play my RUB-
BERS
i
WILLIAM EARL OF MANSFIELD.
275
bers at this work, not the pleaſanteſt in the world; but what muſt be
done, I LOVE TO DO, and have it over.'
Active, very active, as his mind generally was, yet, in the
long vacation of 1758, his lordſhip became an advocate for idle-
neſs, ſaying, “ I am as idle as you can be ; but I have a great
many men at work, I adviſe you to repeat the doſe. Liber eſe mihi
non videtur, qui non aliquando nibil agit.”
At Lancaſter Affizes in Auguſt, 1758, his lordſhip obſerved, in
a letter to a friend in town, “ there was more buſineſs than ever
known, the crown fide almoſt as good to the bar as the other. I
had an enormous gaol;" yet the fatigue of this heavy gaol ſeems to
have been forgotten, or loſt ſight of, in the next fentence.
“ You will be angry when you hear it otherwiſe, if I ſhould not tell
you, that the grand jury, at Lancaſter, did me the Donor of a public
compliment, read by -Mr. Shuttleworth the foreman, and ſigned by all
the reſt. I have been very happy in my colleague, and need not ſay .
that he loves and honors you.” Who that colleague was does not
appear. The fact, if material, might eaſily be aſcertained by
reference to the Circuit Gazette of that year ; but it ſeems to be
more material to proceed to prove that, in this very year 1758,
lord Mansfield, in writing to a friend on the loſs of Mr. Juſtice
Denniſon, for-whom he had the moſt ſincere regard-his own
heart-felt language on this occaſion is, “ As an office of piety, I
am prompted to write the incloſed. I am not uſed to writing,
much leſs to writing epitaplis.”
The curious reader would, in all probability, as ſoon have:
ſuſpected that his lordſhip was compoſing a ſermon, as that he
was writing an epitaph, of which the following is a correct copy:
-
i
“ To the Memory of
Sir THOMAS DENNISON, knight,
this monument was erected
by his afflicted widow..
Nn 2
Wc
276
THE LIFE OF
1
He was an affectionate huſband,
a generous relation,
a ſincere friend, a good citizen,
an honeſt man.
Skilled in all the learning of the common law,
he raiſed himſelf to great eminence
in his profeſſion;
and ſhewed by his practice
that a thorough knowledge
of legal art and form
is not litigious, or an inſtrument of chicane,
but the plaineſt, eafieſt, and ſhorteſt way
to the end of ſtrife.
For the ſake of the publick,
he was preſſed, and at laſt prevailed upon,
to accept the office of a Judge
in the Court of King's Bench.
He diſcharged the important truſt
of that high office
with unſuſpected integrity
and uncommon ability.
The clearneſs of his underſtanding,
and the natural probity of his heart,
led him immediately to Truth, Equity,
and Juſtice.
The preciſion and extent of his legal knowledge
enabled him always to find the right way
of doing what was right.
A zealous friend to the conftitution
of his country,
he ſteadily adhered to the fundamental principle
upon which it is built,
and by which alone it can be maintained ;
a religious application of the inflexible
rule of Law
to all queſtions concerning the power
of the Crown,
5
and
WILLIAM EARL OF MANSFIELD.
277
1
I
and privileges of the Subject.
He refigned his office, February 14, 1765,
becauſe from the decay of his health,
and loſs of his fight,
he found himſelf unable any longer
to execute it.
He died September the 8th, 1765, without iſſue,
in the 67th year of his age.
He wiſhed to be buried in his native country,
and in this church.
He lies here*
near the lord chief juſtice GASCOIGNE,
who, by a reſolute
and judicious exertion of his authority,
ſupported Law and Government in a manner
which has perpetuated his name,
and made him an example famous to poſterity."
1
-
Nota. The real fact is, that to ſerve a living friend (Dr. Johnſon,
afterwards biſhop of Glouceſter) Lord Mansfield actually did
compoſe a political ſermon for the zoth of January, which will
be reſumed in its proper place. The wonder is therefore now
leſs, that he ſhould, in memory of a deceaſed friend, write an
epitaph.
* In Harewood Church, Yorkſhire.
C Η Α Ρ.

W. Grimaldi del!_Miniature Painter
to His R.H. the Duke of York.
Engraved by I. Jones Engraver Extraordinary to His RH the
Prince of Wales & Principal Engraver to tlis ti the Duke of York.
William (late)
Carl of Mansfield
VIRTUTI
INI
ÆQUUS
Virtutis veræ Cuftos
Quo multæ magneeque sucantur Judice lites.
Hor.
CHAPTER THE THIRD.
QUAMVIS SIT CLARIS COLORIBUS, PICTA, VEL POESIS, VEL ORATIO,
Cic. DE ORAT.
(
( 281 )
CHAPTER III.
THE Public have an indubitable right to be informed of every
thing curious, even though not of real importance, relative to
a diſtinguiſhed character. Hence we feel it our duty to attempt
a detail of the exertions made by many eminent artiſts to perpe-
tuate the true reſemblance of lord MANSFIELD, at diſtinct and in-
tereſting periods of his long life.
The firſt, in point of time, may naturally be ſuppoſed to be
replete with vivacity and fpirit, ſince it preſents to the curious
eye Mr. Murray, when a young barriſter, in his maiden bar-
gown, about the year 1734, and is allowed to be an animated
likeneſs. The ingenious artiſt was J. Baptiſt Vanloo. This
portrait is half-length, and is at this day in high preſervation in
the chambers of the Author of theſe ſheets in Lincoln's Inn.
The next is a picture of great merit, at full length, from the
ſpirited pencil of Martin, and is now in the poſſeſſion of Doctor
Turton, F. R. S. at his houſe in the Adelphi. Lord Mansfield
recommended the ſituation, and expreſſed his deſire to preſent
himſelf to his friend and phyſician, in his robes of a peer attendant
at the coronation, This invaluable portrait bears the following
neat and claſſical inſcription :
Oo
OPTIMI E
282
THE:LIFE OF
OPTIME MÆCENAS, LAUVI GRATISSIME NOSTRÆ,
QUIPPE, QUIBUS LAUDI EST TE MEMINISSE SUUM,
CONSILIO ILLUSTREM, TE JACTAT CURIA, JACTANT
TE SIBI PRÆSIDIUM, TE SIBI JURA DECUS.
RESTAT ADHUC PER QUOD TUA GLORIA CLARIOR EXTET;
IMMO, EA VIRTUTI QUÆ COMES INVIDIA.”
The fair occaſion, which gave birth to this beautiful apoſtro-
phe, was this : When party-prejudice ran high, and Mr. Wilkes
was at war with lord Mansfield, on account of the ſentence of
outlawry, &c. one of the Weſtminſter youths made the rage of
Mr. Wilkes his theme, or the ſubject of a Latin epigram.' Under
the auſpices of the archbiſhop of York, then Dr. Markham,
and head maſter of Weſtminſter School, the epigram was made,
and the pleaſing effect of the animation of the ſpeaker, when he
ſtepped forward, reſpectfully bowed, and addreſſed himſelf to
LORD MANSFIELD, who was preſent, is more eaſy to be conceived
than expreſſed.
Another full length portrait of his lordſhip was likewiſe admi.
rably executed by the ſame artiſt in the year 1776, and is now,
in honor of Alma Mater, diſtinguiſhable at Chriſt Church, Ox-
ford, of which, as is univerſally allowed, Mr. Murray was a
fhining ornament. His lordſhip is repreſented as ſitting in. à
chair, and in a peer's coronation robes. The following charac-
teriſtic inſignia are worthy of notice. His right hand is on a vo-
lume of Cicero, and a buſt of Homer is placed on the table.
The duke of Norfolk is poſſeſſed of another ſtrong and expreſ-
five likeneſs of Mr. Murray, at full length, by Vanloo, with
which our tyro at the bar preſented his young friend and contem-
porary, Mr. Booth ; on whoſe death it was preſented to the late
Henry Howard, eſquire.
Another, by Hudſon, diſtinguiſhable not only for an animated
likeneſs, but alſo for inimitable drapery, was painted for Mr.
Hoſkins. of Lincoln's Inn, who was alſo contemporary with Mr.
Murray,
5
WILLIAM EARL OF MANSFIELD.
283
Murray, and is now in the poſſeſſion of Mr. Smith, an eminent
folicitor in Chancery.
The next, in point of time, and, poſſibly, of merit, is in
the poſſeſſion of the family of the late Andrew Moffat, eſquire,
the friend and favorite of lord Mansfield, who with ſome inge-
nuity obtained it from the ſcientific and praiſe-worthy Caleb
Whitefoord, eſquire, another friend of his lordſhip.
Mr. Moffat, being poſſeſſed of a portrait of lady Mansfield, re-
queſted the loan of her companion through life, to ſee how well
they would accord together, and ever afterwards, with great
emphaſis and good humour, told Mr. Whitefoord. “It would
be a great pity, nay, unpardonable in you, to ſeparate man and
wife."? This portrait is illuſtrated with the juſt and conciſe
motto of
1
1
1
NIL ORTUM TALE.
}
Another full length portrait, and, in the eſtimation of lord
Mansfield, the moſt pleaſing picture, painted likewiſe by Martin,
in the grave, yet elegant dreſs in which his lordſhip was pre-
ſented to the late moſt unfortunate French king and queen at
Verſailles in the year 1774, viz. in a well-dreſſed tie-wig, a black
velvet coat, and an handſome white embroidered waiſtcoat, is now
in the poſſeſſion of John Way, eſquire, at his houſe at Acton in
Middleſex.
The inimitable pencils of fir Joſhua Reynolds and of Mr. Cop-
ley remain, to cloſe the deſcription of the valuable portraits of
this exalted character. The city of London had expreſſed a ſtrong
deſire to have lord MANSFIELD's picture in Guildhall, where he
had appeared many thouſand times with great dignity and ad-
vantage to the commercial intereſts of the firſt city in the world;
yet whether his diſinclination to be drawn at ſo late a period of
life, or whether any real objection operated on his mind, he cer-
tainly did reſiſt many importunities of his friends. He was, how-
0 0 2
ever,
1
men som
1
2826
THE LIFE OF
?
i
+
+
ever, at laſt prevailed on, by the archbiſhop of York and Iord
Stormont, to ſit before fir Jofhua, to gratify the wiſhes of the
city of London, as he had previouſly done, no leſs than four timnes.
to Copley, cut of reſpect to Mr. Juſtice Buller. Theſe portraits
are at full length. Here we find venerable age depicted with
great ſerenity, yet not devoid of ſpirit or dignity.
Some ininiature pictures of his lordſhip are in exiſtence, the
moſt valuable of which is ſuppoſed to be that from which the en-
graving in the front of this chapter has been made, and where-
with Dr. Combe has obligingly enriched the preſent
preſent publi-
cation.
Another excellent miniature is in the poſſeſſion of George
Brooks, of Green Street, Groſvenor Square, eſquire, to whom it
was bequeathed in nature of an heir-loom to go from father
to ſon.
From Martin's chef-d'æuvre, in the poſſeſſion of Mr. Way,
and from the munificent caſt of Sir James Marriott's mind, fe-
veral ininiature pictures were not only made by an ingenious
young artiſt, but alſo a Bust of lord Mansfield was executed by
Nollekens, which is allowed to be a very ſtrong, expreſſive, and
animated likeneſs of this exalted character, whoſe ſemblance is
not confined to Oxford, but is extended to the ſiſter univerſity.
Chriſt Church, Oxford, may be permitted to exhibit, and to
triumph in the exhibition of one of its chief ornaments in the
dignified ſituation of a peer in his coronation robes ; yet Trinity-
Hall in Cambridge has the merit of boaſting that they are poſ-
ſeſſed of an invaluable proto-type, and that, in the effort to do
honor to the exalted merit of a lord' chief juſtice, they have
reflected great honor on a judge, the preſent maſter of Tri-
nity-Hall.
The lovers of poetry will be diſpoſed to contend, that the moſt
pleaſing pictures of Mr. Murray, in his juvenile days, were ſuc-
ceſsfully exhibited by his friend and favorite, Mr. Pope. A friend.
6
ſhip
1
1
WILLIAM EARL OF MANSFIELD.
285
fhip early formed on the baſis of inerit and mutual good offices,
bids fair to flouriſh, and to diffuſe its healing balm through life ;
accordingly Mr. Pope, in the decline of life, uſed to ſpend ſeveral
of his winter evenings with lord Mansfield at his houſe in town,
and, as his lordſhip uſed frequently to be out upon buſineſs, the
poet, who had the entrance of his ſtudy, not unfrequently uſed
to fill up his time in writing Latin epigrams, which, when he
ſhewed to lord Mansfield, hé gencrally diſcouraged, and ſome-
times uſed to throw them into the fire, exclaiming, 66 that the
firſt Engliſh poet in the world, who had moft embelliſhed the
Engliſh language, ought not to write any thing but in his own
language."
On another occaſion he obferved, that, if Pope's fame was al-
ready ſufficiently eſtabliſhed, his friends and his country had yet
claims upon him, and would not fail to ſet up thoſe claims ſo
long as he had a propenſity to write.
To reſume the confideration of judicial authorities, a faithful
illuſtration of which will not fail to exhibit the moſt perfe&t pic
ture of juriſprudence, more laſting than canvas, or marble itſelf,
Whenever any ſerious doubt has ariſen in a cauſe in Equity,
concerning queſtions or points which are ſtrictly legal, ſuch
queſtions or points have uſually been referred to the confideration
of a court of law. Thus intricate cafes, upon the legal con-
ſtruction of wills, are generally ſent out of the court of Chancery
to the court of King's Bench, for the opinion of that court.
In theſe inſtances, although it is unuſual to aſſign the reaſons
for, or the grounds of, a certificate of a court of law, yet it
ſeems to be of ſome importance to the public in general, who
have real property to diſpoſe of, to have clear proof adduced ;
that in the various caſes ſent by the court of Chancery to the
court of King's Bench, during the thirty years in which lórd
Mansfield preſided there, the Polar Star, which he ſteered by, and
invariably kept in view, was the clear and manifeſt intention of
the
}
-
286
THE LIFE OF
..
pre-
+
the teſtator ; that his ſedulous attention was confined to, and
the exerciſe of his great powers were employed in effectuating
that intention, fo far as by the rules of law it might be
ferved and carried into effect.
A few inſtances will, it is to be hoped, uſefully illuſtrate this
propoſition, viz. that thoſe teſtators, who endeavour to expreſs
their real intention with as much preciſion and clearneſs as they
are able, have the faireſt proſpect of fhutting out expenſive liti-
gation, or of rendering it in many inſtances unneceſſary to
evince or determine how far ſuch intention can be effec-
tuated : Or ſhould ſuch teſtators be ſo unfortunate, either on
account of their not having had able aſſiſtance in the folemn act
of ſettling their wills, or on account of ſome incongruity, in-
conſiſtency, or obſcurity, which may have crept into, or appear
on the face of, the will; thoſe relations, friends, or objects of
their bounty, will have the ſatisfaction to find, that the labours
of lord Mansfield, in the great field of conteſts upon wills, and
in aid of the real intention of the teſtator, are not likely to be in
vain, or to become obſolete, in ſucceeding ages.
The caſe of Robinſon and Robinſon is the firſt in point of
time, a ſummary account whereof has been already given in
Chap. II. of this work.
Another important caſe ſent out of the court of Chancery,
was that of J. Harris and Barnes, of which a ſummary ſtate-
ment is here given from the author's note-book.
“This was a caſe ſent from the Court of Chancery, upon the will of
George Coningesby, D. D. who, being feiſed in fee of the manor of Gren-
don Warren, &c. in the county of Hereford, on the 15th of February, 1776.
made his will, in which (inter alia) are theſe words : I give and deviſe my
manor of Grendon Warren, in the county of Hereford, and my farm lands
and premiſes called Grendon Warren, in the occupation of the ſaid James
Stone, and all my eſtate called Little Hegdon, alias Hegthorn, being within
: or near to Grendon Warren aforeſaid; alſo all other my freehold eſtates,
lands,
:
1
!
.
WILLIAM EARL OF MANSFIELD.
287
}
1
lands, and premiſes, lying and being at Grendon Warren aforeſaid, or in
any other pariſh or place within the ſaid county of Hereford, unto my kinſ-
man Coningesby Harris, of the pariſh of Claimes, in the county of Worceſter,
gentleman, for the term of ninety years, from my deceaſe, if the ſaid Co-
ningesby Harris ſhall ſo long live : and after the determination of that eſtate, I
give and deviſe all the ſaid premiſes in the county of Hereford unto the heirs
of the body of the faid Coninges by Harris. And in default of ſuch iflue, I give
and deviſe all my faid eſtates and premiſes in the county of Hereford unto my
conſin Mrs. Suſan Elletſon, for the term of ninety years, if the ſaid Suſan
Elletſon ſo long lives, and to commence from the deceaſe of the ſaid Conin-
gesby Harris, he dying without iffue : and, ſubject to the eſtates and con-
tingencies before mentioned, 'I give and deviſe all my ſaid eſtates in the
county of Hereford unto Roger Elletſon, eſq. fon of my faid couſin Suſan.
Elletſon, for and during the term of his life; and from and after his deceaſe
(ſubject to the deviſes aforeſaid), I give all my ſaid eſtates and premiſes in
the county of Hereford unto the firſt and every other ſon and fons of the
body of the ſaid Roger Elletſon, and to the heirs male of the body and
bodies of every ſuch ſon lawfully iſſuing, with ſeveral remainders over..
And after directing all his debts, legacies, funeral expences, &c. to be paid
out of his perſonal eſtate, he goes on, and after ſuch payments, that my faid .
truſtees apply the reſidue and remaindeș of my ſaid perſonal eſtate in purchaſing,
lands, tenements, and hereditaments, in fee fimple, lying in the county of Here-
ford, ſuch lands, tenements, and premiſes, to be conveyed to, and veſted in,
the truſtees named in his will, their heirs and aſſigns, in truſt to and for, and
upon the ſame uſes, limitations, perſons and purpoſes, that my ſaid eſtates
in Herefordſhire are by me before given or deviſed, or ſtand limited by this
my will, and confiftent with the contingencies happening in the mean time :
and for the truſts and purpoſes before mentioned, relating to my perſonal
eſtate, I give and deviſe unto the ſaid truſtees (naming thein), their heirs.
and aſſigns, all my freehold eſtate and title I have in any mortgage or inort-:
gages in fee, and the fee and freehold, and all my right of and in all ſuch.
mortgaged eſtates and premiſes."
* The ſaid teſtator Dr. Coningeſby died' on or about the 15th day of May,
1766, without altering or revoking his ſaid will (except that by a codicil,.
dated the 20th of February, 1766, he gave £...80. to his ſervant John Wink-
bridge), without iſſue, leaving the defendant Elizabeth Barnes his only fiſter
and heir at law.
Day
* The
}
288
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1
“ The executors duly proved the will, and took upon themſelves the bur-
then of the execution thereof.
“ The plaintiff Coningesby Harris, the firſt deviſee in the ſaid will named
of the Herefordſhire eſtates, foon after the death of the ſaid teſtator, entered,
and took poffeffion thereof; but hath no ilue of his body.
" Mrs. Suſan Elletſon, the next deviſee of the ſaid Herefordſhire eſtates,
ſurvived the ſaid teftator, and is lately dead, leaving Roger Elletfon her
only ſon'and heir at law.
- The faid Roger Elletſon, the next deviſee of the ſaid Herefordſhire eſtates,
is now living, but hath not any child.
“ The moneys and ſecurities for money, arrears of rent, and other per-
fonal eſtate, directed by the faid will to be laid out in the purchaſe of lands,
and ſettled to the ſame uſes with the Herefordſhire eſtate, is of a conſidera-
ble amount, and is as yet unliquidated : but the ſame hath not as yet been
laid out in a purchaſe, purſuant to the ſaid will.
- The queſtion therefore referred for the opinion of this court upon the
above cafe and facts is, whether the heirs of the body of the plaintiff Conin-
8:ſby Harris take any, and what eſtate, under the ſaid teſtator's will.'
" Lord Mansfield, after the caſe had been elaborately argued by counſel
on both ſides, was pleaſed to ſay, "We'll think of it, and give our certifi-
cate. We ſhall conſider what the teſtator meant, and the neceſary conſtruction
of his words.'
56 And on Wedneſday the 3d of February, 1768, his lordſhip communi-
cated to Mr. Blackſtone (publicly) the certificate which they had ſettled;
viz.
Having heard counſel on both ſides, and conſidered this caſe, we are
of opinion, that the clear manifeſt intent of the teſtator, was to give an eſtate
tail to ſuch perſon as ſhould be heir of the body of Coningesby Harris, at the
death of the ſaid Coningesby (the only determination of the ninety years term
in the teſtator's view), to him and the heirs of the body of the ſaid Coningesby;'
with remainders over, as in the will; which intent of the teftator may, by
law, take effect, as an executory deviſe ; for, the contingency muſt happen
within the compaſs of a life in being; and the freehold in the mean time i
(being undiſpoſed of) deſcends to the teftator's heir at law.
66 And this, his lordſhip ſaid, would effectuate the whole intention of the
teftator,"
ÉG
Subfc-
WILLIAM EARL OF MANSFIELD.
S
289
Subſequent to the laſt caſe was that of Wellington and Wel-
lington, upon a point of real conſequence~Whether a teftator
who was a batchelor, and deviſed his eſtates, in default of iſſue of
his own body, to two truſtees, and their heirs, had effectually
diſpoſed of his eſtates by the will.
- This was a caſe out of chancery, upon the will of Richard Cary, late of
Walcottin, in the county of Oxford, eſq. wherein, after directing the pay-
ment of his debts and funeral expences, he proceeds thus : 'Item, in default
of iſſue of my own body, I give, deviſe, and bequeath,' &c. and ſo gives all
his eſtates in the ſeveral counties of Oxford, Southampton, Middleſex, Sur-
rey, Hereford, and in the city of London, unto John Arrowſmith, of Chal-
bery, in the county of Oxford, Clerk, and to James Simmons, one of the
aldermen of New Woodſtock, in the county of Oxford, and their heirs, in
truſt, to pay out of the rents, iſſues, and profits, unto his ſiſter Elizabeth
Wellington an annuity of £. 100. per annum, during ſuch time, and until
all' his juſt debts, funeral expences, and legacies (other than annuities)
ſhould be fully paid and ſatisfied; and alſo an annuity of £. 40. per annum to
a ſervant, Sarah Vollier. Then he gives another annuity, and ſeveral legacies;
and directs, that, immediately from and after ſuch time as all his juſt debts,
funeral expences, and the legacies given by his will (other than annuities),
Shall be fully paid and ſatisfied by the ſaid trustees, from and out of the rents
and profits of his faid eſtates, and ſubject to the two annuities before given
to the ſaid Sarah Vollier and Jane Wellington, he gives and deviſes all his
eftate, to his ſiſter Elizabeth Wellington for life, with divers remainders
over.
“ The teſtator, at the time of making his ſaid will, and at the time of his
death, was ſeiſed in fee of the premiſes deviſed by him to the ſaid John
Arrowſmith and James Simrnons, in default of iſſue of his own body; and
died a batchelor, leaving the ſaid Elizabeth Wellington and Jane Collins,
wife of Thomas Collins, his ſiſters and coheirs. His truſtees accepted the
truſts.
“ Upon theſe facts, it was ordered by a decree in Chancery, dated the
9th of November, 1767, in a cauſe between the ſaid Richard Cary Wel-
lington and others, plaintiffs, and Thomas Collins and the ſaid Elizabeth
Wellington and others, defendants ; that the following queſtion be put, for
the opinion of this court of King's Bench; viz.
6. Whether
Рp
290
THE LIFE OF
" Whether the ſaid John Arrowfmith and James Simmons, the truſtees itu:
the ſaid will, took any and what eſtate under the ſaid will."
“ Mr. Blackſtone, on behalf of the plaintiffs, argued, that they took a
baſe fee, determinable upon the payment of the debts, legacies, and
annuities.
“ The objection was, that this deviſe to them is an executory deviſe, and
too remote to take effect by law : it is not to take place till after, a general:
failure of iſſue.
“ Anſwer. The default of iffùe of his body is only a condition precedent..
The teftator was a batchelor. His will was to take no effect, if he married
and had children. The words of it are, in default of iſſue of my own
body, I give, deviſe, and bequeath, &c. If he had married and had chila .
dren, that would have amounted to a revocation of his will.
“ After the queſtion had been fully argued by Mr. Blackſtone and Mr. .
Dunning; Lord Mansfield ſaid, "When a deviſe muſt take effect at the
death of the teſtator, it is not properly an executory deviſe. Such a devife is
a deviſe upon a contingent event, which muſt happen at or before the death
of the teſtator: an executory deviſe, is a deviſe. that is to take place in:
future.
“As to an implied revocation, from alteration of circumſtances, it is now:
ſettled; that as to perſonal eſtates, marriage,.. and having a child, is a revo-.
cation : But no caſe has yet holden that marriage alone is a revocation.
“ I ſée no ground of argument, why the law ſhould not be the ſame as to :
deviſes of land. The reafon is the ſame.. In Meggot verſus Meggot; lord:
Hardwicke directed an iſſue merely to try this queſtion. But the caufe was:
made up by the family, and never tried *
6. We will think upon it ; and give our certificate: .
• The certificate was as follows : - - Having heard counſel" on both ſides,
and conſidered this caſe, .We are of opinion, that John Arrowſmith and James-;
Simmon's took a fee determinable when the purpoſe of paying the teſtator's :
1
* It has fince been adjudged, in the Court of Exchequer, by the opinions
of Sir Thomas Parker (then lord chief baron), Mr. baron: Smythe; and Mr. .
baron Adams, againſt Mr. baron Perrot;, and alſo at the Cockpit, Sir
. Eardley:
Wilmot and lord chief juſtice De Grey concurring, 'that marriage and a :
child was a reyocation of a deviſe of land.'
debts,
WILLIAM EARL OF MANSFIELD. .
291
debts, legacies, and funeral expences, out of the rents, iſſues, and profits,
of the deviſed premiſes, in aid of the perſonal eſtate, ſhall be performed.'
A cauſe of great importance upon the conſtruction of a will,
how far the manifeſt intention of the teſtator ſhould prevail in
letting in a deviſe in favor of children born ſubſequent to the
execution of the will, on the ground of their being virtually in-
cluded in the proviſion for a poſthumous child, came on to be
heard before the right honourable the Lord Chancellor, on the
7th of June, 1769, when a caſe was made for the opinion of the
Court of King's Bench. The juriſprudent will find a full ſtate of
the caſe * in 5th Burr, 2703. The following brief ſtate of it will
probably be ſufficient to make the certificate of lord Mansfield,
and the other judges of the court, perfpicuous and ſatisfactory.
“ Edward Preſgrave, being ſeiſed and poſſeſſed of a very conſiderable real
and perſonal eſtate, did, on or about the 20th of October, 1753, duly make
his will in writing, and thereby gave and deviſed to Eleanor his wife the
feveral freehold and copyhold premiſes therein particularly mentioned (which
faid copyhold premiſes he had previouſly ſurrendered to the uſe of his will),
to hold the ſame unto the ſaid Eleanor until his ſon Thomas Preſgrave ſhould
attain the age of twenty-one years; in truſt, nevertheleſs, that the ſhould
educate and maintain him till that time, out of the rents and profits of the
ſaid premiſes ; and then he deviſed the fame to his faid ſon Thomas in fee.
But if it ſhould happen that his faid wife ſhould be enceinte with one or more
children, at the time of his deceaſe, and his faid fon Thomas ſhould die
without iſſue before he attained the age of twenty-one years, ſuch child or
children being then living ; he then deviſed the ſaid premiſes to his faid
wife till ſuch child or children ſhould attain his, her, or their ages of
twenty-one years; in truſt nevertheſs, that ſhe ſhould educate and maintain
ſuch child or children till that time, out of the rents and profits of the ſaid
premiſes ; and then he deviſed the ſame to ſuch child or children in fee.
But if it happened that his ſaid ſon Thomas ſhould die without leaving iſſue
of his body, and before he attained the age of twenty-one years, or that his
* White againſt Barber.
PP2
ſaid
i
!
.
292
THE LIFE OF
1
age or
faid wife Tould, at the time of his the ſaid teſtator's deceaſe be enceinte with
one or more child or children, who ſhould die without leaving iſſue of his,
her, or their body or bodies, before he, The, or they, attained their
ages of twenty-one years, then he deviſed the ſaid premiſes to his faid wife
for the term of her natural life, with divers remainders over.
The teſtator, at the time of making his ſaid will, had only one child,
the ſaid Thomas ; but after the making thereof, and before his death, he had
two other ſons born ; viz. the plaintiffs Edward and John.
“ On the 12th of January, 1759, the ſaid teſtator Edward Preſgrave died;
without altering or revoking his will, leaving iſſue three children; the ſaid
Thomas Preſgrave who died, without iſſue, in Auguſt, 1766, and the faid
Edward Preſgrave and John Preſgrave, infants of tender years, who were
born after the making of the will, in the teſtator's life-time, and who are ſtill,
living, and who are not provided for, unleſs they take by this will.
“ Eleanor the teſtator's widow was ſtill living; but was not enceinte at the
teftator's death.
66 The cafe. for the opinion of the Court of King's-Bench was; "Whether
in the event that has happened, any and what eſtate is veſted in the plaintiff
Eleonor, and the ſeveral defendants the deviſees, or any of them, and if no:
eſtate is veſted in them, or any of them, then whether any and what eſtate is
:
veſted in the plaintiffs Edward and. John Preſgrave, the two infant children,
or either of them ?"
“ After the caſe had been twice very ably and fully argued, the judges of
the Court of King's Bench certified as follows:
“We are-of opinion, that, the proviſion made by the teſtator being for chil.
dren which were to be born after the making of his will, he certainly.in--
tended to comprehend all the children which ſhould be born of his then
wife (whether before or after his deceaſe); for, we think that a father, in
making an expreſs proviſion for any children which his wife ſhould be enceinte
with at the time of his deceaſe; could never intend to give his eſtate to ſuch
children, in excluſion of, or to his nephews (as the event has happened) in
Preference to, any child or children that might be born in his life-time..
“. We are of opinion, therefore, that (notwithſtanding the defeet of expreſ
fion in this will) the children born before the teſtator's death are virtually in-
cluded in the proviſion ſo anxiouſly made by a parent for his poſthumous
children ; and that,, upon the true conſtruction of this will, the plaintiffs
Edward
1
WILLIAM EARL OF MANSFIELD.
293
Edward and John will be intitled (from the teſtator's manifeſt intent) to take
an eſtate in fee in the premiſſes at their reſpective ages of one and twenty ;
and that in the mean time the plaintiff Eleanor, their mother, is entitled to
hold the ſaid premiſes, ſubject to the truſt of the ſaid will, for their education:
and maintenance..
MANSFIELD
April 23, 1771..
R. ASTON
E. WILLES.
W. H. ASHHUR:ST."
Lord' Mansfield's alteration of the mode of certifying caſes:
fent from the court of Chancery. to the court wherein he
prea.
ſided.--His: lordſhip thus delivered the opinion of the court, with
his obfervations on, and objections to the former mode of cero-
tifying ::
“I found it a cuſtom, in cafes ſent by the court of Chancery for our opio-
nion, to certify
, it privately to the lord chancellor in writing, without de-
claring in this court, either the opinion itſelf, or the reaſons upon which its
:
is grounded. But I think the cuſtom wrong, as well as unſatisfactory to the
bar; and therefore, in the two caſes that now. wait our certificate, and for
the future, we ſhall declare our opinion in this court. The preſent caſe of
Wright and Holford is that of a deviſe to the uſe of all and every the daughter
and daughters of Péter Hölförd and Conſtantiä Maria Holford, and the heirs of
their body and bodies'; ſüch daughters, if more than one, to take as tenants
in common; and not as joint-tenants ; and, for default of ſuch ilue, to the
uſe of the teftator's right heirs. Our certificate in the preſent cafe is-in-theſe
words:
“ There are no words in the inſtrument bearing date the 3d of May, 1758;;
which intimate any intention to limit over the reſpective ſhares of the two
daughters dying without heirs of their bodies reſpectively ; on the contrary,
the limitation over is of the whole eſtate limited to all the daughters, and is
to take place on the expreſs contingency of failure of all and every the :
daughter and daughters, and the heirs of their body and bodies; and the
limitation over, in default of ſuch iſſue, is to the heir at law. Conſequently:
4w
,ر
we
294
THE LIFE OF
we are of opinion, that as nothing is given to the heir at law whilſt
any
of
the daughters or their iſſue continue, they muſt among themſelves take croſs
remainders."
N. B. Lord Mansfield added, “That the introductory words of there
being nothing in the inſtrument of May 3, 1758*, that ſhewed the limita-
tion over to the right heir, was to take place upon failure of either of the
daughters of their iſſue reſpectively, were emphatically put in, in anſwer to
the caſes of Comber verſus Hill, and Williams verſus Brown, cited in the
argument by ſerjeant Hill, and in order to ſatisfy his doubts.
The caſe of Baldwin againſt Karver and another f was next
in point of time, and was that of a deviſe to truſtees, in truſt
for the uſe of the heirs male of J. A. and in default of ſuch
iffue to the uſe of the heirs male of R. A. and, in default of ſuch
iſſue male, to the uſe of all and every the grandchildren of J. A.
and S. M. as tenants in common.
By a codicil bearing even date with the will, the teſtator directs
the truſtees to pay the intereſt and produce of his real and per-
fonal eſtate to his wife S. A. and to the ſaid J. A. and R. A. du.
ring their lives, with ſurvivorſhip. Eight grandchildren were
alive at the date of the will; a ninth was born before the teſtator
died; twelve more were born after his deceaſe, and all in the
lifetime of R. A. who died without iſſue. Held, that as the
twenty-one grandchildren, were all alive at the death of R. A.
all were equally intitled. This caſe, propter dificultatem, was
twice argued.
Lord Mansfield delivered the opinion of the
court at conſiderable length, which the juriſprudent will find in
Cowp. Rep. 313.
Soon afterwards the caſe of Freeman againſt the duke of
Chandos and others, et e contra, introduced a queſtion reſpect-
ing a remote reverſion in fee, which was deemed to paſs under
* See Cowp. Rep. P. 34.
Ibid. p. 309.
genes
WILLIAM EARL OF MANSFIELD.
295
!
1
i
general words, in an act of parliament by way of ſettlement in
execution of articles, though the reverſion was not particularly
in contemplation at that time *, the general words being fuffi-
cient to carry it, and the intention of the parties being to include:
all the eſtate of the ſettler.
In another branch of the laſt caſe, the material facts were
ſtated to be ;. One deviſes: all his eſtate, &c. in the counties of
Glouceſter and Worceſter, and elſewhere in the kingdom of
England, to truſtees, ſubject to certain charges thereon, and li-
mitations in: his marriage-ſettlement named, in truſt to ſtand
ſeiſed, of the ſaid eſtates in G. and W. or elſewhere to certain
uſes. His eſtates in G. and W. were the only eſtates charged or
mentioned in his marriage-ſettlement. But he was alſo intitled
to a reverfion of certain eſtates in the counties of Oxford and
Wilts. Held, that this reverſion paſſed by the words “ elſewhere
in: the kingdom of England $. ; Lord Mansfield obſerving, that
if the words of the will are not fufficient to carry the premiſes
in queſtion, the drag.net of conveyances will never end; after-
wards, on the zoth of November, in this term, the court cer-
tified in theſe words.
“ Having heard counſel on both ſides, and conſidered this caſe, we are
of opinion that the reverſion in fee' of one undivided ſeventh part of the
Keth eſtate, veſted in Robert Tracy, did paſs by the will of Robert Tracy."
In 17.80, a farther caſe was ſent from the court of Chancery, .
which was that of a deviſe of the fee-ſimple and inheritance to:
A..and his child or children for ever, when he ſhall be twenty-
one years of age ; but, if he die before that time, then the fee-
ſimple and inheritance to B, A, takes an eſtate-tail..
Lord Mansfield.—"I had a mind to ſee whether ingenuity could raiſe a
doubt on the one ſide, or ſupply an argument on the other, to make the
* Cowp. Rep. p. 363:
op Ibid. P: 365. .
5
caſes
296
THE LIFE OF
caſe plainer than it is on the face of it. If the teſtator: had uſed the words
4all his eſtate,' ' inheritance,' or 'for.ever.,' and had ſtopped there, the
fee-ſimple would have paſſed. But the words, 'child or children,' are to
the full as reſtrictive, as if he had ſaid, "and if my ſon die without heirs
of his body.' To give the father an eſtate in fee, would be to ſtrike thoſe
words out of the will. They muſt operate to give him an eſtate-tail, for
there were no children born at the time, to take an immediate eſtate by
purchafe. The meaning is the ſame as if the expreſſion had been to
William and his heirs,' that is to ſay, his children or his iſſue. The
words • for over,' make no difference, for William's .iffue might laſt for
ever."
The Certificate was as follows:
66 Having heard counſel and conſidered this caſe, we are of opinion, that
William Stevens took (under the above will of Chriſtopher Stevens) an
eſtate-tail to him, and the leirs of his body, with reverſion to himſelf in
fee by deſcent."
MANSFIELD.
E. WILLES.
12th February, 1.780.
W. H. ASHHURST.
F. BULLER.
1
Although the ſelection of a few leading caſes ſent by the Court
of Chancery to a court of law may be ſufficient to eſtabliſh the
propoſition, which the author of theſe theets was deſirous to pro-
pound, reſpecting the declared intention of a teſtator being, as it
were the polar ſtar, which guided the lord chief juſtice and the
court in their certificates; yet, for the farther illuſtration of this
doctrine, the juriſprudent is referred to many ſimilar and impor-
tant determinations, in the opinions of lord Mansfield and the
other judges of the court of King's Bench thereon, in 5
Burr.
2606. In Cowper's Reports, pages 40, 234, 360, 363, 797, 808. In
Douglas's Reports; ſee pages 470—491. Fonnereau and Fonnereäu,
which, propter difficultatem, was repeatedly and elaborately argued,
and which affords another pleaſing inſtance of lord Mansfield's
ſtopping the judgement of the court from being entered-up; and
altering
1
WILLIAM EARL OF MANSFIELD.
297
/
altering his opinion in conſequerice of further and full inveſtiga-
tion of the abſtruſe doctrine of double contingencies and execu-
tory deviſes, whence the juriſpendent may ſtore his mind with
rules and principles, well-worthy of being treaſured up: Id.
Liber. 309 and 415.
The ſubſtance of the Lord Chief Juſtice's charge to the Jury in
Lord Sandwich's proſecution of the printer of the London Even-
ing Poſt, for Scandalum magnatum.
Lord Mansfield ſaid on this occaſion,
“ There were two forts of proſecutions in matters of libel, criminal and
civil.-In caſes of criminal proſecution, the truth or falſehood of the charge
was totally immaterial, the charge itſelf being the libel. If a perſon charges
another with felony, forgery, or theft, ſuppoſing the charge true in every
part, the perſon is ſtill guilty of a libel; and why? becauſe the law has
provided a puniſhment for ſuch offences. If therefore the man is guilty,
proſecute him; but to charge him with crimes is an extrajudicial proceed-
ings, and as ſuch may be puniſhed. As to civil actions in caſes of libel,
the matter is otherwiſe; there the falſehood of the libel conſtitutes the crime.
In the caſe before us, the defendant hath put himſelf upon proving the
truth of the libel. Well! what have the evidence proved? Nothing which
affects the plaintiff. “Had Corte been Lord Sandwich's agent or ſecretary,
the plaintiff might have been affected by a kind of implication ; but, that
not being the caſe, and the evidences both concurring to clear Lord Sands
wich from having any hand in the buſineſs, not the ſlighteſt ground appears
to accuſe the plaintiff. Parrott was very properly aſked the name of the
perſon who procured theſe places : he at firſt boggled a little, but after-
wards mentioned the perſon. With reſpect to the whole of the evidence,
had the plaintiff's counſel objected to it, ſuch objection wonld have been
well-founded; for undoubtedly it is not evidence de bene ejle; it goes no
farther than to prove a converſation which paſſed between the parties who
delivered it and a third perſon; however, the counſel did not at firſt ob-
ject to it, though they did afterwards. With reſpect to tủe publication,
that is proved by the witneſs who bought the paper ; and from the returns
made by the Stamp-office it appears that the defendant was the publiſher at
the time the libel appeared. You will, therefore, Gentlemen, find for the
plaintiff;
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plaintiff; but I will not ſay one word about the damages, as you are perfect
maſters of the caſe, and will, no doubt, maturely weigh every circumſtance
of private and public character.”
On the oth of January, 1770, the king having opened the
ſeſſions with a ſpeech, the duke of Ancaſter made the uſual mo-
tion for an addreſs. Lord Chatham roſe, and at the cloſe of his
ſpeech took occaſion to inform the houſe that he had drawn up
an amendment to the addreſs, which he begged leave to ſubmit
to the confideration of the houſe.
“ And, for theſe great and eſſential purpoſes, we will, with all convenient
fpeed, take into our moſt ſerious confideration the cauſes of the diſcontent's
which prevail in ſo many parts of your Majeſty's dominions; and particu-
Jarly the late proceedings of the Houſe of Commons, touching the incapa-
city of John Wilkes, Eſquire, (expelled by that Houſe,) to be elected a
member to ſerve in this preſent parliament; thereby refuſing (by a reſolu-
tion of one branch of the legiſlature only) to the ſubject his common right,
and depriving the electors of Middleſex of their free choice of a repre-
ſentative.
" The cautious and guarded terms in which this amendment is drawn up,
will, I hope, reconcile every noble lord who hears me, to my opinion ; and,
as I think no man can diſpute the truth of the facts, ſo I am perſuaded no
man can diſpute the propriety and neceſſity of laying thoſe facts before his
Majeſty.”
Lord Mansfield followed Lord Chatham.
“He began with affirming, that he had never delivered any opinion upon
the legality of the proceedings of the Houſe of Commons on the Middleſex
election, nor ſhould he now, notwithſtanding any thing that might be ex-
pected from him. That he had locked it up in his own breaſt, and it ſhould
die with him: that he wiſhed to avoid ſpeaking on the fubject; but that the
inotion made by the noble lord was of a nature too extraordinary, and too
alarming, to ſuffer him to be filent. He acknowledged the unhappy diſ-
tracted ſtate of the nation ; but he was happy enough to affirm, with a ſafe
conſcience, that he had no ways contributed to it: that, in his own opinion,
declarations of the law made by either houſe of parliament were always at-
tended
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WILLIAM EARL OF MANSFIELD.
299
tended with bad effects; he had conſtantly oppoſed them whenever he had
an opportunity, and in his judicial capacity thought himſelf bound never to
pay the leaſt regard to them. That although thoroughly convinced of the
illegality of general warrants (which, indeed, naming no perſons, were no
warrants at all), he was forry to ſee the Houte of Commons by their rote
declare them to be illegal. That it looked like a legiſlative act, which yet
had no force or effect as a law: for, ſuppoſing the houſe had declared theni
to be legal, the courts in Weſtminſter.would, nevertheleſs, have been bound
to declare the contrary; and conſequently to throw a diſreſpect upon the
vote of the houſe: but he made a wide diſtinction between the general de-
clarations of law, and the particular deciſion which might be made by either
houſe, in their judicial capacity, upon a caſe coming regularly before them,
and properly the ſubject of their juriſdiction. That here they did not act as
legiſlators, pronouncing abſtractly and generally what the law was, and for
the direction of others; but as judges, drawing the law from the ſeveral
ſources from which it ought to be drawn, for their own guidance in deciding
the particular queſtion before them, and applying it ſtrictly to the deciſion
of that queſtion. That for his own part, wherever the ſtatute-law was filent,
he knew not where to look for the law of parliament, or for a definition of
the privileges of either houſe, except in the proceedings and deciſions of
each houſe reſpectively. That he knew of no parliamentary code to judge
of queſtions depending upon the judicial authority of parliament, but the
practice of each houſe, moderated or extended according to the wiſdom of
the houſe, and accommodated to the caſes before them. That a queſtion
touching the ſeat of a member in the lower houſe could only be deter-
mined by that houſe : there was no other court where it could be tried, nor
to which there could be an appeal from their deciſion. That wherever a
court of juſtice is ſupreme, and their ſentence final (which he apprehended
no man would diſpute was the caſe of the Houfe of Commons in matters
touching elections) the determination of that court muſt be received and
fubmitted to as the law of the land; for, if there be no appeal from a judicial
ſentence, where ſhall that ſentence be queſtioned, or how can it be reverſed ?
He admitted that judges might be corrupt, and their ſentences erroneous ;
but theſe were caſes for which, in reſpect to fupreme courts, the conſtitu-
tion had provided no remedy. That, if they wilfully determine wrong, it
was iniquitous indeed, and in the higheſt degree deteſtable. But it was a
crime of which no human tribunal could take cognizance, and it lay be-
tween
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}
1
tween God and their conſciences. That he avoided entering into the merits
of the late deciſion of the Houſe of Commons, becauſe it was a ſubject,' he
was convinced, the lords had no right to enquire into or to diſcuſs. That
the amendment propoſed by the noble lord threatened the moſt pernicious
conſequences to the nation, as it manifeſtly violated every form and law of
parliament; was a groſs attack upon the privileges of the Houſe of Com-
mons, and, inſtead of promoting that harmony which the king had recom-
mended, muſt inevitably throw the whole country into a flame. That there
never was an inſtance of the lords enquiring into the proceedings of the
Houſe of Cominons with reſpect to their own members ; much leſs of their
taking upon them to cenſure ſuch proceedings, or of their adviſing the
crown to take notice of them. If, indeed, it be the noble lord's deſign to
quarrel with the Houſe of Commons, I confeſs it will have that effect, and
immediately. The lower houſe will undoubtedly aſſert their privileges, and
give you vote for vote. I leave it, therefore, to your lordſhip’s to conſider
the fatal effects which may ariſe in ſuch a conjuncture as the preſent, either
from an open breach between the two houſes of parliament, or between the
king and the Houſe of Commons. But, my lords, if I could ſuppoſe it
were even adviſeable to promote a diſagreement between the two houſes, I
would ſtill recommend it to you to take care to be in the right; whenever
I am forced into a quarrel, I will always endeavour to have juſtice on my
fide. Now, my lords, admitting the Houſe of Commons to have done
wrong, will it mend the matter for your lordſhips to do ten times worſe ?
And that I am clearly convinced would be the caſe, if your lordſhips were
obliged to declare any opinion of your own, or offer any advice to the
erown, on a matter in which, by the conſtitution of this country, you have
no right whatever to interfere. I will go farther, my lords ;--I will affirm,
that ſuch a ſtep would be as ineffectual as it would be irregular. Suppofe
the king, in conſequence of our advice, ſhould diffolve the parliament (för
that, I prefume, is the true object of the noble lord's amendment); the next
Houſe of Commons that meets, if they know any thing of their own privi-
leges, or the laws of this country, will undoubtedly, on the very firſt day
of the ſeſſion, take notice of our proceedings, and declare them to be a vio-
lation of the rights of the Commons. They muſt do ſo, my lords, or they
will ſhamefully betray their conſtituents and themſelves. A noble lord
filord Marchmont) near me has propoſed, that we ſhould demand a con-
ference with the other houſe. It would be a more moderate ſtep, I confeſs,
5
but
WILLIAM EARL OF MANSFIELD.
301
I
1
but equally ineffectual. The Commons would never ſubmit to diſcuſs their
own privileges with the Lords. They would not come to a conference upon
ſuch a ſubject; or if they did come, they would ſoon break it up with in-
dignation. If, then, the Commons have done wrong, I know of no re-
medy, but either, that the ſamne power ſhould undo the miſchief they had
done, or that the caſe ſhould be provided for by an act of the legiſlature.
That, indeed, might be effectual. But whether ſuch a remedy be proper
or neceſſary in the preſent caſe, or whether indeed it be attainable, conſider-
ing that the other houſe muſt give their conſent to it, is not a queſtion now
before us. If ſuch a bill ſhould be propoſed, it will be regular and parlia-
mentary, and we may then, with propriety, enter into the legal merits of
the deciſion of the Houſe of Commons. As for the amendment propoſed by
the noble lord, I object to it as irregular and unparliamentary. I am per-
fuaded, that it will be attended with very pernicious conſequences to this
country, and that it cannot poſſibly produce a ſingle good one."
Lord Chatham's amendment was negatived.
On a further motion of Lord Chatham*,
“ That the capacity to be choſen a repreſentative of the Commons in par-
fiament being under known reſtrictions and limitations of law, an original
inherent right of the ſubject may be cognizable by law, and is a matter
wherein the juriſdiction of the Houſe of Commons, though, unappealable as
to the ſeat of their member, is not final or concluſive.”
His lordſhip's firſt ſpeech, which laſted two hours, was ex-
fremely diſpaſſionate, ſenſible, and much to the point in queſtion.
He enlarged greatly upon the Middleſex election, and urged the
neceſſity of diffolving, the parliament, which, he declared, by
feating colonel Luttrell, and rendering Mr. Wilkes incapable of
being elected, had infringed the rights of the electors, and that
an action at law would certainly lie againſt the Houſe. After
diſplaying great eloquence, with the moſt admirable candor and
gentleneſs, he made a digreſſion upon the modern manner of
* 28 Nov. 1770.
directing
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directing a jury from the bench, and giving judgement upon
proſecutions for libels.
Lord Mansfield roſe, ſaying,
“ He ſhould not ſpeak to the queſtion, but to what the noble lord had ſaid
in the digreſſion, which, he obſegyed, he had handled with great decency,
that as to directions to juries, they had ever been the ſame as now; they
were nothing novel, nor had they till this moment been once called in
queſtion. His lordſhip could, he ſaid, quote numerous authorities, equally
juſt and reſpectable, of this opinion ; but he would now only mention three,
Mr. Juſtice Denniſon, Mr. Juſtice Foſter, and Mr. Juſtice Yates, all inde-
pendent men. The noble lord who fpoke before had miſconceived the mat-
ter, by implicitly believing, as many others did, what had appeared in
print reſpecting the nature of libels and directions to juries, whereas much
was often printed totally falſe and groundleſs. If he properly nnderſtood the
noble lord, he meant to ſay, that the jury were told, they were only judges
of fact, and not of law ; but his lordſhip was miſtaken ; he had always, in
one uniform manner, told a jury that they were to judge of what appeared
by the evidence in court, both reſpecting the publication and reſpecting the
juſtification of any libel. Where no juſtification of the matter in the infor-
mation was entered into, they were to find, according to their judgement,
whether the inuendos and the criminal inference * in the information were
ſuch as the paper deſerved. His lordſhip obſerved, he ſhould at all times be
proud of changing his opinion, when it appeared to him that his judge-
ment was improper. Many precedents of the ableſt lawyers doing ſo
might be recollected ; and upon all trials where he preſided, he told the
court, if he was wrong in his direction, he would moſt willingly be fet right;
which might be done in an arreſt of judgement; for, if a direction to a jury
was improper, the whole verdict was null and void, and a new trial muſt be
* In all the late trials of the celebrated paper of Junius, his lordſhip never
ſaid a word to the jury that they were to judge of the criminal inference of
the paper ; but, on the contrary, conſtantly told the jury, “ That, whether
the paper was criminal or not, was not a point for them, but for the court to
determine."
granted
$
!
WILLIAM EARL OF MANSFIELD..
303
granted. His lordſhip ſaid, that, what might probably ſurprize that Houſe,
no objection had, in fourteen years, been ever made to his conduct in this
particular, though he had ſo repeatedly deſired the court to do it if they
thought him wrong. Judges cannot go away from the expreſs and known
law of the land ; they are bound by oath punctually to follow the laws. He
declared, he liad ever made it the rule of his conduct to do the thing that
was juſt; and, conſcious of his own innocence and rectitude, he was per-
fectly unmoved by any libel or publication concerning him. His lordſhip
here alſo expreſſed the opinion he held of his own conduct and intentions by
quoting a line from Shakſpeare. As to the inotioft, and what the noble earl
had thrown out reſpecting the diſſolution of the Houſe of Cominons, their
own Houſe were laſt year alarmed at it; how much more ſhould they now
be, in the preſent ſituation of affairs ? As to action for damages, what da-
mage could be recovered of the Houſe of Commons, who would, doubtleſs,
plead a breach of privilege ?"
He concluded with a great compliment to the earl of Chatham,
for what he had, though out of office, very recently ſaid in the
Houſe concerning the legality of the preſs-warrants.
1770.
On the 8th of May, 1770, a bill for taking away all privilege
from a lord's effects, and from his ſervants, was debated in the ..
Upper Houſe; wherein juſtice being weighed by their lordſhips in
the balance, preponderated over ſelf-intereſt. Lord Mansfield roſe
in ſupport of the bill,
1
My lords,
« When I conſider the importance of this * bill to your
lordſhips, I am not ſurprized it has taken ſo much of your confideration.
It is a bill, indeed, of no common magnitude ; it is no leſs than to take
away from two-thirds of the legiſlative body of this great kingdom certain
privileges and immunities, of which they have been long poſſeſſed. Per-
* The bill paſſed, and the act received the royal aſſent at the end of the
feflion.
haps
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1
haps there is no ſituation that the human mind can be placed in, that is ſo
difficult, and ſo trying, as where it is made a judge in its own cauſe. There
is ſomething implanted in the breaſt of man ſo attached to itſelf, ſo tena-
cious of privileges once obtained, that, in ſuch a ſituation, either to diſcuſs
with impartiality, or decide with juſtice, has ever been held as the ſummit
of all human virtue. The bill now in queſtion puts your lordſhips in this
very predicament; and I doubt not but the wiſdom of your deciſion will
convince the world, that, where ſelf-intereſt and juſtice are in oppoſite
ſcales, the latter will ever preponderate with your lordſhips.
" Privileges have been granted to legiſlators in all ages and in all countries.
The practice is founded in wiſdom; and, indeed, it is peculiarly eſſential to
the conftitution of this country, that the members of both Houſes ſhould be
free in their perſons in caſes of civil ſuits ; for, there may come a time when
the ſafety and welfare of this whole empire may depend upon their atten-
dance in parliament. God forbid that I ſhould adviſe any meaſure that
would in future endanger the ſtate ; but the bill before your lordſhips has, I
am confident, no ſuch tendency, for it expreſsly ſecures the perſons of mem-
bers of either Houſe in all civil ſuits. This being the caſe, I confefs, when
I ſee many noble lords, for whoſe judgement I have the greateſt reſpect,
ftanding up to oppoſe a bill which is calculated merely to facilitate the reco-
very of juſt and legal debts, I am aſtoniſhed and amazed. They, I doubt
not, oppoſe the bill upon public principles; I would not wiſh to infinuate
that private intereſt has the leaſt weight in their determination.
** This bill has been frequently propoſed, and as frequently miſcarried ;
but it was always loft in the Lower Houſe. Little did I think, when it had
paffed the Commons, that it poſſibly could have met with ſuch oppoſition
here. Shall it be ſaid that you, my lords, the grand council of the nation,
the higheſt judicial and legiſlative body of the realm, endeavour to evade by
privilege, thoſe very laws which you enforce on your fellow-ſubjects ? Forbid
it juſtice. I am ſure, were the noble lords as well acquainted as I am with but
half the difficulties and delays that are every day occafioned in the courts of .
juſtice, under pretence of privilege, they would not, nay, they could not,
oppoſe this bill.
** I have waited with patience to hear what arguments might be urged
againſt the bill, but I have waited in vain; the truth is, there is no argu-
ment
1
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305
WILLIAM EARL OF MANSFIELD.
ment that can weigh againſt it. The juſtice, and expediency, of this bill is
ſuch as renders it ſelf-evident. It is a propoſition of that nature that can
neither be weakened by argument, nor entangled with ſophiſtry. Much, in-
deed, has been ſaid by ſome noble lords on the wiſdom of our anceſtors,
and how differently they thought from us. They not only decreed, that
privilege ſhould prevent all civil ſuits from proceeding during the fitting of
parliament, but likewiſe granted protection to the very ſervants of members.
I ſhall ſay nothing on the wiſdom of our anceſtors; it might perhaps appear
invidious, and is not neceſſary in the preſent caſe. I ſhall only ſay, that
the noble lords that flatter themſelves with the weight of that reflection,
ſhould remember, that, as circumſtances alter, things themſelves ſhould al-
ter. Formerly it was not ſo faſhionable either for maſters or ſervants to run
in debt as it is at preſent; nor formerly were merchants nor manufacturers
members of parliament, as at preſent. The caſe now is very different. Both
merchants and manufacturers are, with great propriety, elected members of
the Lower Houſe. Commerce having thus got into the legiſlative body of
the kingdom, privilege muſt be done away. We all know that the very
foul and eſſence of trade are regular payments; and fad experience teaches
us, that there are men, who will not make their regular payments without
the compulſive power of the laws. The law then ought to be equally open
to all; any exemption to particular men, or particular ranks of men, is, in
a free and commercial country, a ſoleciſın of the groſſeſt nature. But I will
not trouble your lordſhips with arguments for that which is ſufficiently evi-
dent without any. I ſhall only ſay a few words to ſome noble lords, who
foreſee much inconveniency from the perſons of their ſervants being liable to
be arreſted. One noble lord obſerves, that the coachman of a peer may be
arreſted while he is driving his maſter to the houſe, and conſequently he will
not be able to attend his duty in parliament. If this was actually to happen,
there are ſo many methods by which the member inight ſtill get to the
houſe, I can hardly think the noble lord to be ſerious in his objection. Ano-
ther noble lord ſaid, that by this bill one might loſe their moſt valuable and
honeſt fervants. This I hold to be a contradiction in terms; for he neither
can be a valuable ſervant, nor an honeſt man, who gets into debt, which he
neither is able nor willing to pay till compelled by law. If my ſervant, by
unforeſeen accidents, has got in debt, and I ſtill wiſh to retain him, I
certainly would pay the debt. But upon no principle of liberal legiſlation
Rr
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whatever, can my ſervant have a title to ſet his creditors at defiance; while, for
forty ſhillings only, the honeſt tradeſman may be torn from his family and
locked up in gaol. It is monſtrous injuſtice! I flatter myſelf, however,
the determination of this day will entirely put an end to all ſuch partial
proceedings for the future, by paſſing into a law the bill now under your
lordſhips' confideration.
" I now coine to ſpeak upon what, indeed, I would have gladly avoided,
had I not been particularly pointed at for the part I have taken in this bill.
It has been faid by a noble lord on my left hand, that I likewiſe am running
the race of popularity. If the noble lord means, by popularity, that applauſe
beſtowed by after-ages on good and virtuous actions, I have long been
itruggling in that race, to what purpoſe all-trying time can alone deter-
mine; but, if the noble lord means that muſhroom popularity which is raiſed
without merit, and loft without a crime, he is much miſtaken in his opinion.
I defy the noble lord to point out a ſingle action in my life where the popu-
larity of the tirnes ever had the ſmalleſt influence on my determinations. I
thank God I have a more permanent and ſteady rule for my .conduct--the
dictates of my own breaft.
my own breaft. Thoſe that have foregone that pleaſing adviſer,
and given up their mind to be the ſlave of every popular impulſe, I ſincerely
pity; I pity them ftill more, if their vanity leads them to miſtake the ſhouts
of a mob for the trumpet of their fame. Experience might inform them
that many, who have been faluted with the huzzas of a crowd one day, have
received their execrations the next: and many who, by the popularity of
their times, have been held up as ſpotleſs patriots, have nevertheleſs ap-
peared upon the hiſtorian's page, when truth has triumphed over deluſion,
the affaffins of liberty. Why, then, the noble lord can think I am ambitious of
preſent popularity, that echo of folly and ſhadow of renown, I am at a loſs to
determine. Beſides, I do not know that the bill now before your lordſhips
will be popular;. it depends much upon the caprice of the day. 'It may not
'be' popular, to compel people to pay their debts; and in that caſe the prefent-
muſt be an unpopular bill. It may not be popular neither to take away any
of the privileges of parliament ; for I very well remember, and many of your
lordſhips may remember, that not long ago the popular cry was for the ex-
tenſion of privilege'; and ſo far did' they carry. it at that time, that it was-
faid that privilege protected members from criminal actions; nay, fuch was
the power of “popular prejudices over weak minds, that the very deciſions of
ſome
cente
WILLIAM EARL OF MANSFIELD.
307
berty, in
ſome of the courts were tinctured with that doctrine. It was undoubtedly
an abominable doctrine ; I thought ſo then, and think ſo ſtill; but neyer-
theleſs it was a popular doctrine, and came immediately from thoſe who
were called the friends of liberty, how deſervedly time will ſhew. True li-
my opinion, can only exiſt when juſtice is equally adminiſtered to
all, to the king, and to the beggar. Where is the juſtice, then, or where
is the law, that protects a member of parliament more than any other man
from the puniſhment due to his crimes? The laws of this country allow of
no place nor no employment to be a fanctuary for crimes ; and, where I have
the honor to fit as judge, neither royal favour nor popular applauſe ſhall
ever protect the guilty.
“ I have now only to beg pardon for having employed ſo much of your
lordſhips' time ; and I am very ſorry a bill, fraught with ſo good conſe-
quences, has not met with an abler advocate ; but I doubt not your lord-
ſhips' deterinination will convince the world that a bill, calculated to contri-
bute ſo much to the equal diſtribution of juſtice as the preſent, requires,
with your lordſhips, but very little fupport.”
The title of this falutary act is, “ An Act for the farther pre-
venting the Delay of Juſtice by Reafon of Privilege of Parliament*.'
Motion for a new trial in the cauſe of Rex verſus Almont.
The defendant having been convicted of publiſhing a libel
(Junius's Letter) in one of the magazines, called The London
Muſeum; which was bought at his ſhop, and even profeſſed to be
printed for him ;'
His counſel moved, on Tueſday the 19th of June, 1770, for a
new trial ; upon the foot of the evidence being inſufficient to
prove any criminal intention in Mr. Almon, or even the leaſt know-
ledge of their being ſold at his ſhop. And they had affidavits to
prove, that it was a frequent practice in the trade, for one pub.
liſher to put another publiſher's name to a pamphlet, as printed
for that other, when in fact it was publiſhed for himſelf. That
1
*
13
Geo. III. Ch. 50.
of Michaelmas Term, 1770. 5 Burr. 2686.
Rr 2
this
308
THE LIFE OF
i
!
this was the fact in the preſent caſe ; Mr. Miller being the real
publisher of this Muſeum, but having advertized it and publiſhed
it as printed for Mr. Almon, without conſulting Mr. Almon, or
having his conſent or approbation. That, on the contrary, as
foon as he ſaw his name put to it, as being printed-for him, he
immediately ſent a note to Mr. Miller, expreſſing his diſapproba-
tion and diffatisfaction. That he himſelf had no concern what.
ever in this London Muſeum. That he was not at home when
they were ſent to his ſhop. That the whole number ſent to his
ſhop was 300. That about ſixty-ſeven of them had been ſold
there by a boy in the ſhop, but without Mr. Almon's own know-
ledge, privity, or approbation. That, as ſoon as he diſcovered it,
he ſtopt the ſale, ordered the remainder to be carried up into his
garret, and took the firſt opportunity to return them to Mr.
Miller ; that it was not proved, that the perſon who fold them
was Mr. Almon's ſervant, or employed by him ; or that Mr. Al-
mon was at all privy to the ſale.
On Wedneſday the 27th of June, 1770, it came on again ; and
ferjeant Glynn argued, that the proof againſt Mr. Almon appeared
therefore to be defective: There was nothing to conſtitute cri-
minality, or induce puniſhment.
That, after the jury had been out about two hours, one of them
(Mr. Mackworth) propoſed a doubt, “ Whether the bare proof
of the ſale in Mr. Almon's ſhop, without any proof of privity,
knowledge, confent, approbation, or malus animus, in Mr. Alinon
himſelf, was ſufficient in law to convict him criminally of publiſh-
ing a libel."
Mr. Mackworth underſtood his lordſhip's anſwer to this doubt
to be this : “ That this was concluſive evidence.” Otherwiſe,
Mr. Mackworth was convinced in his own mind, that the de-
fendant ought not to be found guilty upon this evidence ; nor
would he have found him guilty. He certainly gave his verdict
under a miſtake. If he had apprehended that the jury were at
liberty,
1
WILLIAM EARL OF MANSFIELD:
309
liberty, to exerciſe their own judgement, he would have acquitted
the defendant.-The Serjeant prayed, that Mr. Mackworth's affi-
davit might be read.
Lord Mansfield. “You know it can't be read.”
Mr. Fuſtice Afton. “ A juryman's affidavit with regard to his ſentiments
in point of law, at the trial, ought not to be admitted; whatever may be the
caſe of his affidavit tending to rectify a miſtake in fact.”
Lord Mansfield, in reporting the evidence, ſaid, “He had told the jury,
that there was evidence of the publication, if they believed the witneſſes.
And he ſaid, he had directed them (as he always had done, and as he took
the law to be), that if they were not ſatisfied that the blanks were filled
up
in the information, in the true ſenſe and meaning of the writer, they ought
to acquit the defendant: and that the epithets uſed in the information were
inferences of law, drawn from the paper itſelf; and not facts to be proved.
" The court were of opinion, that none of the matters urged on behalf of
the defendant, nor all of them added together, were reaſons for granting a
new trial ; whatever weight they might have in extenuation of his offence,
and in conſequence leſſening his puniſhment. For, they were exceedingly
clear and unanimous in opinion that this pamphlet being bought in the ſhop
of a common known bookſeller and publiſher, importing by its title-page to
be printed for him, is a ſufficient prima facie evidence of its being publiſhed
by him : not; indeed, concluſive, becauſe he might have contradicted it,, if
the facts would have borne it, by contrary evidence. But, as he did not offer
any evidence to repel it, it muſt (if believed to be true) ſtand good:till an-
ſwered, and be conſidered as concluſive till contradicted..
“ Lord Mansfield ſaid, and repeated, that Mr. Mackworth liad underſtood
him perfectly right; and he was very glad to find that there was no doubt
of what he had faid. The ſubſtance of it was, that in point of law, the
buying the pamphlet in the public open ſhop of a known profeſſed book
ſeller and publiſher of pamphlets, of a perſon acting in the ſhop, primi
facie is evidence of a publication by the maſter himſelf; but that it is liable
to be contradicted, where the fact will bear it, by contrary evidence tending
to exculpate the maſter, and to ſhew that he was not privy nor afſenting to
it, nor encouraging it. That this being primd facie evidence of a publica-
tion by the maſter himſelf, it ſtands good till anſwered by him ; and, if not
anſwered at all, it thereby becomes concluſive ſo far as to be ſufficient to con-
vict
310
THE LIFE OF
ro
vict him. That proof of a public expofing to fałe and ſelling at his ſhop, by
his ſervant, was prima facie ſufficient; and, muſt ſtand till contradicted or
explained or exculpated by ſome other evidence; and, if not contradicted,
explained, or exculpated, would be, in point of evidence, ſufficient or tan-
tamount to concluſive. Mr. Mackworth's doubt ſeemed to be 'whether
the evidence was ſufficient to convict the defendant, in caſe he believed
it to be true;' and in this ſenſe I anſwered it, prima facie, 'tis good, and
remains fo till anſwered. If it is believed, and remains unanſwered, it be-
comes concluſive. If it be ſufficient in point of law, and the juryman be-
lieves it, he is bound in conſcience to give his verdict according to it.
" In practice, in experience, in hiſtory, in the memory of all perſons li-
ving, this is, I believe, the firſt time that it was ever doubted that this
is good evidence againſt a bookſeller or publiſher of pamphlets.' The con-
ſtant practice is, to read the libel as ſoon as ever it has been proved to be
bought at the defendant's ſhof. This practice ſhews that it is conſidered as
already proved upon the defendant; for, it could not be read againſt him before
it had been proved upon him.
“ If I am miſtaken, I am entirely open to alter my opinion, upon being
.convinced that it is a wrong one. But, at preſent, I take this point to be as
much eſtabliſhed as that an eldeſt ſon is, in general, heir to his father;
and, being evidence prima facie, it ſtands, if believed, till contrary proof is
brought to repel it."
.
The other judges delivered feriatim their opinions, and con-
curred with lord Mansfield.
The court therefore unanimouſly diſcharged the rule to fhew
cauſe why there ſhould not be a new trial.
The ſpeech of lord Mansfield, in giving his charge to the jury
in the caſe of the King' againſt Woodfall for a libel.
Though the court will not yet determine whether the affidavit of any of
the jury may be read in this cauſe, yet I have permitted one to be read a
little by way of ſtating it; and I there find, that the application of the Innu-
endoes is not denied, only the criminal conſtruction put upon the paper in the
information. To have denied the one would have been very material ; with
the other they have nothing to do. In that caſe, there would be no proof to
them
WILLIAM EARL OF MANSFIELD.
311
1
them of the paper, as charged in the information : but, if the jury find that
the defendant publiſhed at all, they find the paper as charged in the infor-
mation ; for, that is their only enquiry. I take it from the affidavit which
has been ſtated, that it does not appear whether the jury meant to ſay
that the paper is no libel; if they had the leaſt doubt whether the Innuen-
does were properly ſupplied, there ſhould be a new trial. I did not leave it
to the jury, whether the paper was innocent or not. I never do. I ſum-
med up to them, as I have always done in ſimilar caſes, that if they were
not ſatisfied of the fact of publication, 'or had a doubt of the application of
any of the words in the information to the blanks in the letter, they muſt
acquit the defendant. But I told them alſo, that whether the paper was
criminal or innocent was to them a ſubject of indifference; becauſe, if
innocent, judgement would be arreſted in this court. Here the jury did not
mean to find the malice of the defendant, becauſe it was not within their
inquiry ; nor did they mean to exclude it, becauſe it was not within their
power to exclude a legal deduction.
There may be ſomething of a diſtinction in books about amending a ver-
dict in civil and in a criminal caſe; but it is a miſtake, and there is nothing in it. -
In the caſe of Gibſon for forgery, all the judges were of opinion, that, where
the officer had drawn up the verdict contrary to the finding of the jury, it
might be amended. There is a caſe of this fort in the Year-books as early as
the third of Richard III. I forget the page, as I ſpeak only from the me-
mory of my reading. This is the only way of altering a verdict, either. in a:
criminal.or civil caſe. There is, indeed,-a found diſtinction which holds in
the pleadings ; for thoſe cannot be amended in criminal matters.
“ Whatever may be the inclination of my opinion in this caſe, it is too
late to have any effect from it in this term : therefore let it ſtand over to the
next.”
Lord Mansfield's charge to the jury, on an information filed:
againſt the printer of the London Evening Poft, for repub-.
liſhing Junius's:Letter to the King.
“I'have the ſatisfaction to know that, if I ſhould be miſtaken in the di--
• Tection I am about to give-as to your duty on the preſent occaſion, it will
not be final and concluſive ; but it is under the full' conviction of my own
mind, that I am warranted, by the uniform practice of paft-ages, and by the
5,
law.
312
THE LIFE OF
THE
law of the land, that I inform you, that the queſtion for your determination
is, whether the defendant printed and publiſhed a paper of ſuch tenor and
meaning as is charged by the information? If the tenor had been wrong,
the proſecution would at once have fallen to the ground; buc that is not ob-
jected to, nor is any meaning ſuggeſted by the defendant different to that
fupplied by the filling up the blanks in the information. If you find the
defendant not guilty, you find he did not print and publiſh as ſet forth; if
you find him guilty, you find that he did print and publiſh a paper of the
tenor and meaning ſet forth in the indictment. Your verdict finally eſta-
bliſhes that fact; but you do not by that verdict find whether that pro-
duction was legal or illegal, for, ſhould the defendant be found guilty, he
may arreſt the judgement, by inſiſting there is nothing illegal in this paper,
and may carry this matter before the higheſt court of judicature in this
kingdom. Nor do you find, by that verdict, that he did it with any degree
of malice or guilt, inore than appears from the face of the publication.
Nothing can be more various than the manner of publication, which may
be attended with the higheſt degree of guilt, or with circumſtances that
make it a venial matter. It is certain, all the epithets of malicious, fedi-
tious, &c. given in the information, are inferences in law; and it is ad-
mitted that it is needleſs to give any proof about them.
- The defendant, after conviction, may be heard to extenuate his offence
on his own affidavit, as was lately admitted in the caſe of one of the perſons
.convicted of publiſhing the letter before you, which is a proof that the
criminality of the fact is not determined by the jury. If you don't believe-
that the tenor and meaning of this paper are not rightly ſet forth in the in-
formation, or, if you diſbelieve the evidence given to bring the publication
home to the defendant, you muſt acquit him ; but, if you are ſatisfied in
thoſe points, you muſt find him guilty. If you chuſe to determine the point of
law, you ſhould be very ſure, for your conſciences ſake, that your determination
is law; but if the law was in every caſe to be determined by juries, we
Thould be in a miſerable condition, as nothing could be more uncertain
from the different opinions of mankind.
« After this the jùry withdrew, and brought in the verdict not guilty.”
The unanimous opinion of the judges of the court of King's
Bench, in the cauſe of the King againſt Woodfall, cannot fail
to be acceptable to the curious reader.
It
1
WILLIAM EARL OF MANSFIELD.
ziz
It was read by lord Mansfield on the 20th of November, 1770,
in the Houſe of Lords, in juſtification of his conduct in that im-
I
portant cauſe *
r. This comes before the court upon two rules.
- The firſt obtained by the defendant to ſtay the entering up judgement
on the verdict given in this cauſe.
“ The ſecond obtained by the attorney-general, that the verdict may
be
entered according to the legal import of the finding of the jury.
- The laſt rule' muſt, from the nature of it, be firſt diſcuffed, becauſe
the ground of argument upon the other cannot be ſettled till this is dif-
poſed of.
Upon this rule it is neceſſary to report the trial.
- This proſecution is an information againſt the defendañt, for printing
and publiſhing a libel in the Public Advertiſer, figned Junius.
- The tenor of which is ſet out with proper averments as to the meaning
of the libel, the ſubject-matter, and the perſons concerning which and of
whom it ſpeaks, with Inuendos filling up all the blanks and the ufual épi-
thets.
- In ſupport of the proſecution, they proved by Nathaniel Crowđer, that
he bought the paper produced and twelve more from Colfield, the defend-
ant’s publiſher, in the defendant's publiſhing room, the corner of fvy-lante.
“ That he goes often there, has occaſionally ſeen the printing room, and
has had papers in the printing room.
“ They read the paper produced, and the tenor agreed with the informa-
tion.
“ George Harris, regiſter of pamphlets and newſpapers, proved that the
defendant himſelf, and ſervants, paid the money for advertiſements in the
Public Advertiſer; that defendant had paid himſelf, and all the payments
were on his account.
" That the defendant has made the uſual affidavit, and has been allowed
the ſtamp-duty for ſuch papers as were unfold.
- That the duties on advertiſements in the paper now in queſtion weré
paid by defendant's ſervants, and the receipt given on defendant's account.
5 Burr. 2661. State of the previous Proceedings.
Ss
56 William
1
314
THE LIFE OF
“ William Lee, clerk to Sir John Fielding, proved, that he often carried
advertiſements for the Public Advertiſer to the defendant's, the corner of
Try-lane.
- That he generally paid ready money, that he had ſeen money paid to
the defendant for advertiſements, and he had a receipt from the defendant
ſigned by him the 29th of November for thirty-two pounds, for printing,
advertiſements in the Public Advertiſer.
“ On the part of the defendant, they called no witneſſes..
“ His counſel objected to ſome of the Inuendos; but they principally ap-
plied to the jury to acquit the defendant, from the paper being innocent,
or not liable to the epithets given it by the information, or, that the de-
fendant's intent in publiſhing did not deſerve the epithets in the information.
6. There was no doubt but that the evidence, if credited, amounted to
proof of printing and publiſhing by the defendant.
- There may be caſes, where the fact proved as a publication may be
juſtified or excuſed, as lawful or innocent; for, no fact which is not criminal,,
in caſe the paper be a libel, can amount to a publication of which a. de-
fendant ought to be found guilty.
“ But no queſtion of that kind aroſe in this cauſe.
• Therefore I directed the jury to conſider, whether all the Inuendos,
and all the applications to matter and perſons, made by the information,
were in their judgement the true meaning of the paper..
“ If they thought otherwiſe, they ſhould acquit the defendant; but, if
they agreed with the information, and believed the evidence as to the publi:
cation, they ſhould find him guilty..
“ If the jury were obliged to find, whether the paper was a libel, or
whether it was a libel to ſuch a degree as to deſerve the epithets given it.by
the information, or to require proofs of the expreſs intents of the defendant
in printing and publiſhing, and of its being malicious to ſuch a degree as
to deſerve the epithets given by the information ; then this direction was
wrong
“ In ſupport of it, I told them, as I have, from indiſpenſable duty, been
obliged to tell every juryman, upon every trial of this kind, to the follow-
ing. effect.
" That whether the paper (meaning as alleged by the information) was
in law a libel was a queſtion of law upon the face of the record ; for, after
1
con-
-
WILLIAM EARL OF MANSFIELD. .
315
1
conviction, a defendant may move in arreſt of judgement, if the paper is
not a libel.
" That all the epithets in the information were formal inferences of law
from the printing and publiſhing.
“ That no proof of expreſs malice was ever required, and is in moſt
caſes impoſſible to be given.
" That the verdict finds only what the law infers from fact; therefore,
after conviction, a defendant may, by affidavits, leffen the degree of his
guilt.
66 That where an act in itſelf indifferent, if done with a particular in-
tent, becomes criminal, there the intent muſt be proved and found; but,
where the act is in itſelf unlawful, as in this caſe, the proof of juſtification
or excuſe lies on the defendant; and, in failure thereof, the law implies a
criminal intent.
6. The jury ſtayed out a great while, many hours; at laſt they came to
my
houſe, (the objection of its being out of the county being cured by con-
ſent.) In anſwer to the uſual queſtion put by the officer, the foreman gave
their verdict in theſe words, guilty of printing and publiſhing only. Nothing
more paſſed.
66 The officer has entered up the verdict literally, without ſo much as
adding the uſual words of reference, to connect the verdict with the matter
to which it is related.
“ Upon this, the two rules I have ſtated were moved for.
“ Upon that obtained by the attorney-general, the affidavit of a juror
was offered by the counſel for the defendant.
“ But we are all of opinion that it cannot be received.
“ Where there is a doubt upon the judge's report, as to what paſſed at
the time of bringing in the verdict, there the affidavits of jurors or bye-
ſtanders may be received, upon a motion for a new trial, or to rectify a
iniftake in the minutes.
" But the affidavit of a juror never can be read as to what he then
thought or intended.
" This motion conſiſts of two parts: firſt, to fill up the formal words of
reference; ſecond, to omit the word only.
“ We are all of opinion, that the firſt is a technical omiſſion of the
clerk, and ought to be ſet right.
Ss 20
66 As
$16
THE LIFE OF
“ As to the ſecond, that the word only muſt ſtand in the verdict.
“ There is no ground (from any thing which paſſed) to explain the ſenſe
of the jury, ſo as that the officer ought to have entered a general verdict.
“ No argument can be urged for omitting the word only, which does not
prøve that it can lave no effect though inſerted; and therefore it is a queſ-
tion of law upon the face of the verdict.
- The defendant's motion muſt be conſidered upon the ground of the
word only ſtanding; was it omitted, there could be no doubt.
Guilty of printing and publiſhing, where there is no other charge, is
guilty ; for, nothing more is to be found by the jury.
“ In the caſe of the king againſt Williams, the jury found the defendant
guilty of printing and publiſhing the North Briton, Nº 45; the clerk entered
it up guilty, and no objection ever was made.
66 Where there are more charges than one, guilty of ſome only is an acquittal
as to he reft.
“ But in this information there is no charge, except for printing and pub-
liſhing.
Clearly, there can be no judgement of acquittal ; becauſe the fact found
by the jury is the very crime they were to try.
" The only queſtion is, whether by any poſſibility the word only can have
a meaning which would affect or contradict the verdict.
" That the law, as to the ſubject-matter of the verdict, is as I have
ſtated, has been ſo often unanimouſly agreed by the whole court, upon
every report I have made of a trial for a libel, that it would be improper to
make it a queſtion now in this place.
“ Among thoſe who have concurred, the bar will recollect the dead, and
the living not now here.
" And we all again declare our opinion that the direction is right, and ac-
cording to law.
- This direction, though often given (with an expreſs requeſt from me, ,
that if there was the leaſt doubt they would move the court), has never been
complained of in court; and yet, if it had been wrong, a new trial would
be of courfe.
" It is not now complained of.
« Taking then the law to be according to this direction, the queſtion is,
whether any meaning can be put upon the word only, as it ſtands upon the
record, which will affect or contradict the verdict ?
66 If
WILLIAM EARL OF MANSFIELD.
317
** If they meant to ſay, that they did not find it a libel, or did not find
the epithets, or did not find any expreſs malicious intent; it would not affect
the verdict, becauſe none of theſe things were to be proved or found either
way.
“ If, by only, they meant to ſay that they did not find the meaning put
upon the paper by the information, they ſhould have acquitted him.
" If they had expreſſed this to be their meaning, the verdict would have
been inconſiſtent and repugnant; for they ought not to find the defendant
guilty, unlefs they find the meaning put upon the paper by the information,
and judgement of acquittal ought to have been entered up.
« If they had expreſſed their meaning in any of the other ways, the verdict.
would not have been affected, and judgement ought to be entered upon it.
66. It is impoſſible to ſay with certainty what the jury really did mean ; pro--
bably they had different meanings.
“ If they could poſſibly mean that which, if expreſſed, would acquit the
defendant. he ought not to be concluded by this verdict.
“ It is poſſible fome of them might mean, not to find the whole ſenſe
and explanation put upon the paper by the inuendos in the information:
66 If a doubt ariſes from an ambiguous and unuſual word in the verdict,
the court ought to lean in favor of a venire de novo.
“ We are under the leſs difficulty, becauſe, in favor of a defendant, though.
the verdict be full, the court may grant a new trial.
“And we are all of opinion, upon the whole of the caſe, that there ſhould
be a new trial.”
Lord Camden, after reading the contents, it is ſaid, deciared,
that he conſidered the paper delivered in by lord Mansfield as a
challenge to himſelf, which he accepted, and the glove was
thrown down, and he took it up. That he was ready to meet
him in defence of the laws of his country, and deſired a day might
be fixed. In the mean time the following paper was likewiſe left
with the clerk.
» 1. Does the opinion mean to declare, that upon the general iſſue of not
guilty, in the caſe of a ſeditious libel, the jury have no right, by law, to
examine the innocence or criminality of the paper, if they think fit, and to
form-their verdict upon ſuch examination ?
“2: Does
1
318
THE LIFE OF
CC
2. Does the opinion mean to declare, that in the cafe above mentioned,
when the jury have delivered in their verdict guilty, that this verdict has
found the fact only, and not the law ? .:
3. Is it to be underſtood by this opinion, that if the jury come to thic
bar, and ſay, that they find the printing and publiſhing, but that the paper
is no libel : that in that caſe the jury have found the defendant guilty gene-
rally, and the verdict muſt be ſo entered up?
4. Whether the opinion means to ſay, that if the judge, after giving
his opinion? of the innocence or criminality of the paper, ſhould leave the
conſideration of that matter together with the printing and publiſhing to the
jury, ſuch a direction would be contrary to law.
5.
I beg leave to aſk, whether dead and living judges, then' abfent, did
declare their opinions in open court, and whether the noble lord has any note
of ſuch opinions?
66 6. Whether they declared ſuch opinions, after folemn arguments, or
upon any point judicially before them ?"
Lord Mansfield replied,
66 That this method of propoſing queftions to him was taking him by
ſurprize ; that it was unfair ; and that he would not anſwer interrogatories.'
It is not eaſy to reconcile the propriety or the probability of
lord Camden's having uſed the authoritative ſtyle, which, at
the opening of his queries, has been aſcribed to him, with the
general tenor of the decorous language of one lord chief juſtice to
another. To the queries: themſelves it was reaſonable to demur,
Gnce it was not within the ſcale of probability that the unani-
mous opinion of the court of King's Bench, formed after great
deliberation, and upon a queſtion of real importance, ſhould be
ſo obſcure, ſo devoid of preciſion, as, to ſtand in need of being
twiſted into the form of a few queſtions, divided and ſubdivided,
by way of interrogatories.
“ Animi motibus fermo debet väcake,
Ne aut ira exiftat, aut cupiditas aliquam appareat.”
Cic. de Offic.
An
!
{
r
f
WILLIAM EARL OF MANSFIELD.
319
1
An appeal of death was brought by the widow of the perfon
killed at Brentford, in Middleſex, pending a general election.
" The following caſe * of Bigby againſt the two Kennedys (ſays Sir James
Burrow), is of fo peculiar a nature, and upon a ſubject which occurs ſo very
feldom, that I have been intentionally very minute and circumſtantial in de-
ſcribing the method and form of proceeding in it; as I conceive it may pot
only be an amuſement to the curioſity of ſome readers, but may alſo be uſe-
ful as a precedent, and ſave the trouble of ſearching into rule-books and re-
cords, whenever a future appeal ſhall happen to be brought; eſpecially as
this was an appeal againſt two different perſons, who were brought into court.
al different times and from different cuſtodies."
In conſequence of an introductory note ſo curious as the pre-
fent, an apology may, by ſome readers, be deemed neceffary, on
the part of the author of theſe ſheets; for omitting to ſtate a caſe
of ſo peculiar a nature. His apology is, that the duties of a res
porter and a biographer are very different; and although the
length of this report extends to fourteen folio pages, yet there
is not in any one of them any ſpeech or obſervation of lord.
Mansfield's, which conſiſts of three lines..
The proceedings upon another appeal of death, brought by
the widow of James Smith, produced another fimilar inſtance,
and are faithfully reported by Sir James Burrow, in his fifth yo-
lume, 2793:
Non-reſidence of Clergy.
Henry Law, who &c. verſus James Ibbetſon t'; D. D. in debt
upon the Stat. of 21 H: VIII. for non-reſidence'; the defendant
pleaded the general iſſue.
* Michaelmas Term, 1770. 5.Burr. 2643.
ohin 5 Burr. 2722. 30 April, 1770..
Uponi.
320
'.
THE LIFE OF
Upon trial, at the laſt aflizes for the county of Hertford, a
verdict was given for the plaintiff for 10f. ſubject to the opinion
of the court upon this caſe; viz.
• The defendant, beneficed with the rectory of the pariſh church of Buſh-
cy, to which there is a good parſonage-houſe belonging, during all the time
nientioned in the declaration performed the duty of rector of the ſaid.pariſh,
but was perſonally reſident and abiding in and upon a dwelling-houſe belonging to
himſelf, in Buſhey, in the pariſh of Buſhey, and not in and upon the ſaid par-
fonage-houſe belongiog to the faid rectory. The defendant alſo, during all
the time aforeſaid, was and ſtill is archdeacon in and throughout the whole
archdeaconry of St. Alban's, and the liinits thereof; which is an ecclefiafti-
cal dignity, with juriſdiction of granting licences for marriages, probate of
wills, and letters of adminiſtration. He has a feat in the church of St. Al-
ban's; has a deputy-regiſter, who lives at St. Alban’s, and keeps an office
there: but the feal of office is kept by the defendant in his own cuſtody;
to whom the ſaid deputy-regiſter applies for the uſe of the feal and the diſ-
patch of buſineſs.
“ The houſe in which the defendant was and is reſident and abiding is within
the limits of the ſaid archdeaconry. (as is alſo his rectory-houſe), but is not be-
longing, nor is there any houſe which does belong, to his archdeaconry as an
archidiacor.al houſe,
" The queſtion for the opinion of the court is, 'Whether, under theſe
circumſtances, the plaintiff is intitled to recover?'
Lord Mansfield. “ The words of the act of parliament are very pointed and
very preciſe. They are *, ' that as well every ſpiritual perſon now being pro-
moted to any archdeaconry, deanry, or dignity, in any monaſtery or cathedral
church, or other church, conventual, or collegiate, or being beneficed with
any parſonage or vicarage, as all and every ſpiritual perſon and perſons which
hereafter ſhall be promoted to any of the ſaid dignities or benefices, with
any parſonage or vicarage, from the feaſt of Saint Michael the Archangel,
next coming, ſhall be perſonally refident and abiding in at and upon his faid
dignity, prebend, or benefice, or at one of them at the leaſt.-And in caſe
:
* 21 Hen. VIII, Ć. 13. f. 26.
that
3
!
-
i
WILLIAM EARL OF MANSFIELD.
32.1
.
that
any ſuch ſpiritual perſon, at any time after the faid feaſt, keep not refi-
dence at one of his faid digmities, prebends, or benefices, as aforeſaid, but
abſent himſelf wilfully by the ſpace of one month together, or by the ſpace
of two months, to be accompted at ſeveral times in any one year, and make
his reſidence and abiding in any other places by ſuch time, that then he
ſhall forfeit, &c,
The determinations upon adjudged caſes are, that if he does not reſide
upon one or the other, lie is within the penalty; and, that if therė be a
houſe upon the parſonage, or dignity, he' muſt reſide in that houſe,
being ſufficient to reſide in any other houſe, though it be within the pariſh.'
66 If there be no houſe, then indeed he may reſide where he will, pro-
vided it be within the pariſh: for he cannot, upon a penal act, be puniſhed
for not reſiding in the houſe, when there is no houſe for him to reſide in.
" Reſidence is a technical term: he muſt ſhew, that he was reſident
within the technical ſenſe under the act of parliament.
“ His lordſhip was of opinion, that the plaintiff ſhould have judgment."
The other judges delivered their opinions feriatim ; and the
whole court concurred in opinion for the plaintiff.
Note. There was afterwards a caſe in this court, on Friday, 3d
May, 1776, Wilkinſon, eſquire, who, &c. v. Allot, clerk; where
there was no parſonage-houſe, and therefore the parſon abſented
himſelf entirely, and did not reſide in the pariſh at all : and the
court held, that though impoſſibilities will indeed excuſe, yet he
muſt come as near as he can to reſiding in the parſonage-houſe-he
muſt reſide ſomewhere within the pariſh.
Lord Mansfield's ſpeech in the laſt mentioned cauſe was as
follows:
“ The ſtatute of non-refidence is a beneficial law; and, though a penal
one, has received a ſtrict conſtruction againſt ſuch as have offended.
“ A clergyman with cure of fouls is bound, not only by the canon law,
but in conſcience, to attend his duty in perſon if he can. By experience it
was found, that neither conſcience nor canon law were fufficient to bind
the clergy to a due obſervance of their parochial duty; but they left it to be
done by poor curates, hired at ſmall ſalaries. It would be a ſtrange argu-
Tt
ment
322
THE LIFE OF
- Įt is true, the law ſays, that in all reſtrictions impoſed, impoffibility is
ment to ſay, that perſons of that deſcription could poffibly maintain the
hoſpitality which the ſtatute had in view, and which ought to be kept up.
The Stat. 21 H. VIII. C. 13. was made to remedy this grievance, and the
words are general, ' that every ſpiritual perſon &c. fhall reſide, in, at, and
upon his benefice ;' it does not ſay in, at, and upon his parfonage-houſe. The
word benefice was indeed formerly uſed to denote certain portions of land
given by lords to their followers for their maintenance, but now it is a gene-
ral term for any eccleſiaſtical living or preferment. In this caſe the benefice
is a parfonage, or vicarage, and the general words uſed by the act might be
ſatisfied by his reſiding any where upon the living. However, authorities as
far back as the time of Elizabeth ſay that that conſtruction does not anſwer
the end; but it muſt be a reſidence in the par fonage-houſe. It is a remedial
and beneficial law both for the pariſh and the fucceffor; and cafes have
been determined, where, though the parſon lived within twenty yarợs of the
parſonage-houſe, and though he had a ſervant who ſlept in it*, yet it was
holden not to be a legal and fufficient reſidence.
an excuſe; but then it muſt be performed cy près. If there has been no
parfonage-houſe from time immemorial, it is moſt certain that the parſon
çannot live in it. What then !--The next thing to be done is, to come as
near to it as he can. He muſt live fomewhere in the pariſh. His conſcience
obliges him to do ſo. The canon law requires it, and this ſtatute enforces
the obligation under a penalty. It is ſaid, that in Law v. Ibbet for, I did
fay, that if there was no parſonage-houſe, the parſon might reſide where
he pleafed ;' but it is clear that muſt mean ſomewhere in the pariſh. Any
other conftruction would be a fhameful evaſion of the ſtatute. Here there
is no parſonage-houſe: but the want of a parfonage-houſe is no excuſe for
reſiding out of the parik entirely; and therefore there muft be judgement
for the plaintiff.
Hilary Term 1771.
On the firſt day of this term t, the great feal (lørd Mansfield
having again declined accepting it) was delivered by the king to
* 2. Brownlow, 54.
5. Barr. 2692.
the
WILLIAM EARL OF MANSFIELD.
323
"
the lord commiſſioner Bathurſt, as lord chancellor of Great Bri-
tain, who was upon this occaſion made a peer of the realm.
Caſe on a wager.
Earl of March verſus Pigot *.
A verdict having been found for the plaintiff, Mr. Lee moved,
on behalf of the defendant, for a new trial.
The cauſe was tried before lord Mansfield. It was a contract
hatch'd at Newmarket. The wager was originally propoſed
between young Mr. Pigot, the preſent defendant, and young
Mr.
Codrington, to run their fathers (to uſe the phraſe of the place)
each againſt the other. Sir William Codrington, the father of
Mr. Codrington, was then a little turned of 50. Mr. Pigot's
father was upwards of 70. Lord Oſſory computed the chances
according to the above-mentioned ages of their reſpective fa-
thers. Mr. Codrington thought the computation was made too
much in his disfavor. Whereupon lord March agreed to ſtand
in Mr. Codrington's place: and reciprocal notes were accord-
ingly given between the earl and Mr. Pigot. Mr. Pigot's note
ran thus : • I promiſe to pay to the earl of March 500 guineas,
if my father dies before Sir William Codrington. WILLIAM
Pigot.' The earl's was: “I promiſe to pay to Mr. Pigot 1600
guineas, in caſe ſir William Codrington does not ſurvive Mr.
Pigot's father. MÁRCH. No mention was at all made, at the
time of this tranſaction, about their fathers being then dead or
alive. But the fact was that Mr. Pigot's father was then actually
dead: he died in Shropſhire, 150 miles from London, at two
o'clock in the morning of the ſame day on which this bet was
made at Newmarket, after dinner. However, this fact was not
át that time at all known to any of the parties, nor was there
any reaſon for ſuſpecting that Mr. Pigot's father was then dead.
5. Butt. 2802.
Tt2
There
1
3
324
THE LIFE OF
There was no objection made at the trial againſt going into parot
evidence. Lord Mansfield left the matter to the jury; who found
a verdict for the plaintiff with 525£. damages.
Lord Mansfield.-" If the preſent caſe had ſtood upon written evidence
only, it had been matter of law; but there was no objection made at the
trial againſt going into parol evidence.
- The queſtion is, what the parties really meant? The material con-
tingency was, 'which of theſe two young heirs ſhould come to his fatlier's
eftate firſt?' It was not known that the father of either of them was then
dead. Their lives, their healths, were neither warranted, nor excepted. It
was equal to both of them, whether one of their fathers ſhould be then fick
or dead. All the circumſtances ſhew, that if it had been thought of, it
would not have made any difference in the bet; and there was no reaſon to
preſume that they would have excepted it.
• The intention was, that he who came firſt to his eſtate ſhould pay this
fum of money to the other, who ſtood in need of it. That the event which
bad happened, was in the contemplation of neither party.
“ Both notes are ſo penn'd, as to be applied to what was to happen. But
the nature of ſuch a contract, and the manifeſt intention of the parties, fup:
port the verdict of the jury, (to whom it was left without objection,)
he who ſucceeded to his eſtate firſt, by the death of his father, ſhould pay
to the other, without any diſtinction whether the event had or had not at
that time actually happened.”
The court unanimouſly diſcharged the rule for a new triat.
In Trinity Term, 1771*, a caſe of great importance to thoſe
who poſſeſs a ſpecies.of landed property, at the will of the lord of
A
C
that
a
}
* The juriſprudent will have the pleafure and advantage of finding in
5th Burr. 2766 , the following introduction by Sir James Burrow. As it
is a caſe of very curious learning, and was very well argued and maturely
confidered by the court, I will endeavour to give the very words of the re-
ſpective ſpeakers, as nearly as I can:;! Twenty, pages, in folio are uſefully
employed
Vaughan, on the demiſe of Atkins v..Atkin's widow.
WILLIAM EARL OF MANSFIELD.
325
1
a Manor, reſpecting the legal conſtruction of ſurrenders and ad-
mittances of and to cuſtomary and copyhołd lands, was very in-
geniouſly
!
7
i
1
employed therein. At the cloſe of the arguments, Lord Mansfield ſaid, “The
court were very much obliged to the gentlemen for taking ſo much pains
in their arguments; and he thought nothing could be added to them : tliere-
fore there was no necd of any further argument; but it might ſtand for the
opinion of the court.
“He hinted, however, that no cafe in point had been cited by Mr. Groſe;
nor any in.point by Mr. Kerby, except out of Gilbert. Tlie great queſtion,
is the relation of the admittance to the time of the ſurrender.
Curia adviſare vulta
" And now Lord Mansfield delivered their opinion:
“ Wirat is ſtated relative to the premiffes not being copyhold at the will
of the lord, makes no difference as to the queſtion : and, therefore, I ſhall
conſider it as a general poirit, common to all eſtates which paſs by Surrender
and admittance.
“ The queſtion is, 'whether the heir of the ſurrenderee, who dies before
admittance, fhall avoid the free-bench or cuſtomary dower of the widow,
becauſe he died before admittance. The caſe has been extremely well ar-
gued; end, therefore, I ſhall be but ſhort in giving our opinion; the whole
having been exhauſted in the arguments.
6 In this caſe the contract is for a purchaſe and falé:
- The ſurrender is the ſubſtantial part of the conveyance, and a complete:
execution of the contract as between the vendor and the vendee.
“ The ſurrender and the admittance are different parts of the ſame convey-
The former effectuates the ſubſtantial part; and therefore muſt relate to
it
. Both together make but one conveyance. The admittance muſt be pur-
ſuant to the ſurrender ; and conſequently muſt operate as from the date of it.
" Surrender to A. before admittance, ſurrenderor dies: A. is afterwards
admitted * A. Thall avoid the free-bench of the widow of the ſurrenderor ;.
for A's admiſſion has relation to the ſurrender.
«. If one joint-tenant ſurrenders-to the uſe of his willyt; his devifee ſhall
take: for the admittance relates to the ſurrender; and from that time ſevers.
the joint-tenancy.
* It is laid down, 4 Co. 49 b. that the lord is only an inſtrument. That,
after admittance the ſurrenderee, is in by him who made the ſurrender:
That although the ſurrenderor, or the tenants by whoſe. hands the ſurrender
ance.
was
1
* Benfon.v. Scot. 3 Lev. 385: 3.Salk, 185:
+ Co. Lit. 59 b.
326
THE LIFE OF
1
geniouſly and elaborately argued by Mr. Grófe, now fir Nathi
Groſe, one of the juſtices of that court, as counſel for the leſſor
of the plaintiff, and by Mr. Kerby for the defendant.
Wreck
was made, die ; yet preſentment and admittance afterwards is good : and where
he to whoſe uſe the ſurrender is made, before admittance, dies, his heir
ſhall be admitted. The true reaſon is drawn from the context, and given in
Bacon's Abridgment* : for, upon admittance, the eſtate is ceftuy qui ufe fronı
the time of the ſurrender by relation.
“ Moor's cafe f, Trinity Term, 40th Elizabeth, referred to by Juſtice
Newdigate, in the caſe of Blunt v. Clarke, is not ſtated, nor does it appear
what the queſtion was. The propoſition in Roll's Abridgement, that the
heir being admitted, is in by the lord, and not by hiſn that made the ſur-
render,' is contrary to truth, and to all the authorities. The lord is a mere,
inſtrument; and cannot vary from the ſurrender. And in the ſame caſe
of Blunt v. Clarke, (reported afterwards in the faine book *, 2 Sider-
fin, 61,) Glynn, Chief Juſtice, ſays, ' if a man feiſed of copyhold in
burrough-english ſurrenders to the uſe of J. S. and his heirs ; and J.S.
dies before admittance, leaving two ſons; the younger of them ſhall
have the land ; becauſe he is in by defcent, or at leaſt by force of the firſt
ſurrender, and ſo in nature of a deſcent. And it is ſaid in the Trea-
tiſe of Tenures aſcribed to lord chief baron Gilbert, and, I ſuppoſe,
written by him, “that his opinion || ſeems to be very reaſonable ; for beirs
was certainly there a word of limitation and not of purchaſe ; and cer-
tainly there is as much reaſon to adjudge the heir in by deſcent here, as there
is to judge an heir in by deſcent, where a recovery was had againſt the ancef-
cor, but not executed till after his death, becauſe the uſe might have veſted
during the life of the anceſtor, and becauſe the execution hath a retroſpect.
And in truth, the caſe of a ſurfender is juſt the ſame ; for, admittance might
have been in the life of the anceſtor ; and when it was had it had a rétro-
fpect.? And in the margin he refers to Shelly's caſe in 1 Co. 106. where the
opinion was, that the execution had a retroſpect to the recovery.'
“ With this reaſoning we agree; and are of opinion, that, upon admit-
tance, the heir is in, by deſcent, from the ſurrender to which the admittance
relates.
“ The leffor of the plaintiff in this caſe is expreſsly admitted as heir. The
law caſts the free bench upon the widow juſt as it cafts the deſcent upon the
heir
I Vol. 476:
t 2 Siderfin, 38. I Roll. Abr. 627. pl. 9.
It is a ſecond argüment and determination of the cafè.
| Page 288, in the third edition,
3
WILLIAM EARL OF MANSFIELD.
327
Wreck of the Sea.
Trinity Term, 1771
*.
A motion had been made laſt term for a new trial. The cauſe
had been tried before the chief juſtice of Cheſter and the other
judge of that circuit.
Lord Mansfield in his ſpeech has ſo clearly ſhewn the cardo
caufæ, and the nature of the doubts and difficulties in this cauſe,
as to make any farther ſtatement of it unneceſſary and im-
proper.
Lord Mansfield. “There is no ſort of doubt concerning the true owner-
fhip of theſe goods, which were caſt away in a ſtorm, and recently purſued.
Every body elfe reſtored to the true owner the proportions that they had got
of them, upon a proper ſalvage offered : This defendant refufed to deliver
heir. The admittance by relation makes her huſband feifed from the date of
the ſurrender.
"There is no rule better founded in law, reaſon, and convenience, than
this, That all the ſeveral parts and ceremonies neceſſary to complete a con-
veyance ſhall be taken together as one aft, and operate from the fubftantial
part' by relation.'
" Livery relates to the feoffment inrollment to the bargain and fale ;
a recovery, to the deed which leads the uſe : fo admittance ſhall relate to
the ſurrender, eſpecially when it is a ſale for a valuable conſideration, as ja
this caſe.
" The title is not complete till admittance; and to the lord it is material,
in reſpect of his fine ; but as between the parties, the rendor and vendee,
the admittance is mere form. This agreement is executed, and the land
bound by the ſurrender. The lord is compellable, by Mandamus or decreez
to admit. The vendor, his widow, his heir, and all claiming under him,
are concluded from ſaying, after admittance, that the land did not paſs
from the day of the ſurrender. Upon this ground the leſſor of the plaintiff
claims the inheritance whereof his brother died feiſed; it ſhall not be in
his mouth to ſay, againſt the widow, that his brother did not die feifed."
" Therefore let judgement be for the defendant.
“ Judgement for the defendant.”
*
5 Burr. 2732
the
328
THE LIFE OF
the íliare that he had got being forfeited, according to his apprehenſion, as
û wreck, becauſe no live animal came afhore. He likewiſe objects to the
plaintiff's recovering ; becauſe certain forms, which he ſays were requiſite to
be performed, have not, as he alleges, been properly performed.
“ The firſt queſtion is, 'Whether theſe goods are forfeited ?” Now, no
aſe is produced, either at common law, or on the conſtruction of the ſta-
tute of 3 Edw. I. c. 4. to prove that the goods were forfeited, becauſe no dog
or cat or other animal came alive to Thore. I will therefore preſume, that
there never was any ſuch determination ; and that no caſe could have been
determined ſo contrary to the principles of law, juſtice, and humanity. The
very idea of it is ſhocking. And there is no ground for ſuch a forfeiture,
upon the diſtinction that has been ſo much urged between a man or other
animal coming to ſhore alive or not alive. The coming to ſhore of a dog or
a cat alive can be no better proof, than if they ſhould come aſhore dead.
The eſcaping alive makes no ſort of difference. If the owner of the dog or
cat or other animal was known, the preſumption of the goods belonging to
the ſame perſon would be equally ſtrong whether the animal was alive or
dead. If no owner could be diſcovered, the goods belonged to the king.
But there ought to be a reaſonable time allowed to the owner to come in and
claim them; and it was proper that the time ſhould be limited. The old
limitation was a year and a day; which was the time limited in many other
cafes *. The mode of proof was as it might happen. Goods are now, gene-
rally, marked; perhaps in antient dàys it might not be ſo common nor ſo
accurate, and then a dog or a cat might be a preſumption towards aſcer-
taining the owner of the goods. Braćton, who wrote in the time of Henry
III. ſays , Magis propriè dici poterit wreccum, fi navis frangatur, &c.
nifi ita fit, quod verus dominus aliunde veniens, per certa indicia & figna do-
cuerit res effe fuas ; ut fi canis vivus inveniatur &c. & eodem modo, fi certa
figna appofita fuerint mercibus & aliis rebus.' And Bracton's opinion has
been recognized by later writers. Lord Coke, in his fifth Report, 107,
ſays, that it appears from Brazton, that the ſtatute of William I. was but
3
* See 7th Co. 107, 1084.
of Lib. 3. c. 3. p. 120%.
See alſo 2 Inſt. 166.
a de
WILLIAM EARL OF MANSFIELD.
329
It
a declaration of the common law, and cites the ſame paſſage from Bratton,
* Et quòd hujuſmodi dici debet wreccum, verum eft, nifi fit quod verus do-
minus aliunde veniens, certa indicia & figna donaverit res-eſſe ſuas; ut fi canis
"vivus inveniatur, & conſtare poterit quòd talis fit dominus illius canis; pre-
ſumptivè ex hoc, illum effe dominum illius canis & illarum rerum: eodem
modo, fi certa figna impofita fuerint mercibus.' Thus it ſtands at the common
law. Then, has the ſtatute of 3 Edw.. 1. C. 4. altered the common law?
No.: quite otherwiſe. · And this act was made in favor of the owner.
enacts, negatively, that it ſhall not be wreck, if man, dog; or cat, eſcape
alive ;' but it has no contrary, poſitive, proviſion, that if . neither „man,
dog, nor.cat, &c. eſcape alive, it ſhall belong to the king.' This ſtatute has
been recognized as declaratory of the common law. The words of it are,
Concerning wreck of the ſea it is agreed, that where a man, a dog, or å
i cat, eſcape quick out of the ſhip, that ſuch ſhip, nor:barge, nor any thing
within them, ſhall be adjudged wreck; but the goods ſhall be ſaved and
kept, &c. ſo that if any ſue for thoſe goods, and afterwards prove that they
were his, or periſhed in his keeping, within a year and a day, they ſhall
be reſtored to him without delay; and, if not, they ſhall remain to the king.'
Lord Coke ſays, that -- theſe three inſtances, of a man, dog, or cat, are put
but for examples.; for, beſides theſe two kinds of beaſts, all other beaſts,
fowls, birds, hawks, and other living things, are underſtood, whereby the
ownerſhip or property of the goods may be known*.
be known*. And this is agreeable to
the charter of king Henry the Second, which includes every animal what-
ſoever. And the eſcape of a dog or cat, or other animal, is conſidered as a
medium of proof, whereby the ownerſhip or property of the goods may be
known up. If this was a recent ſtatute, it ought to be conſtrued according to
reaſon and juſtice. For, the court ought not, unlefs they are abſolutely
obliged to it, to conſtrue an act of parliament directly contrary to the plain
and clear principles of juſtice and humanity-; which the conſtruction urged
on the part of the defendant in this caſe would undoubtedly be, in the
higheſt degree. But this is a ſtatute of very antient ſtanding, and was de-
claratory of the common-law, as appears from Braxton; who wrote before the
making of it, and has been fince ſufficiently recognized ; and no caſe pro-
duced to the contrary, inor any authority in point. The other two ſtatutes
* 2 Inſt. 167, 168.
of Ibid. 168.
Uu
are
330
THE LIFE OF
C
are out of the caſe; they do not relate to this matter. , Beſides, here the de-
fendant has infifted upon property. I am very clear that the direction was
right, and that the rule for a new trial ought to be diſcharged.”
All the other judges preſent concurred with his lordſhip; and,
The rule to ſhew cauſe why there ſhould not be a new trial was
diſcharged.
The legal diſcuſſion of the feveral learned and intricate points.
in diſpute between the College of Phylcians and the Licentiates
is thus introduced by fir James Burrow * :
“ It would require a volume to give a full and particular detail of this long
conteſt between the fellows and the licentiates; which was litigated with
great ſpirit and eagernefs between ſeveral very learned and reſpectable gen-
tlemen of the faculty on both fides.” It muſt not therefore be attempted
within the compaſs of a collection of this nature. A ſummary account of it,
however, ought not to be omitted ; which was as follows:
“A rule had been obtained, upon the application of Dr. Letch, for the
College of Phyſicians to ſhew cauſe why a Mandamus ſhould not iſſue,
directed to them, commanding them to admit John Letch, doctor of phy-
fic, to be a member of the college.
« This rule was made upon the whole body of the college or community of
the faculty of phyſic of the city of London, and alſo upon the preſident and
cenſors of the ſaid college.
“ On Thurſday, 7 May, 1767, Mr. Yorke fhewed cauſe againſt this
rule; and fir Fletcher Norton argued in ſupport of it.
" The ſhort ſtate of the material facts, with reſpect to this Mandamus,
was, That Dr. Letch, who practiſed as a man-midwife, was ſummoned by
the college, to be examined. He thereupon came in, and was examined
thrice at the Comitia minora : and, after the third of thoſe examinations, he
was there balloted for, “Whether he ſhould be approved of by them or not?'
From Eaſter Term 1768 to 6 June, 1771. The king againſt Dr. Al-
kew and others, cenſors of the College of Phyſicians, 4 Burr. 2186. conti-
pued down to 1771 incluſive..
A
WILLIAM EARL OF MANSFIELD.
331
1
A diſpute aroſe upon this ballot. The majority of the number of balls ap-
peared to be for approving himy; but one of the cenſors declared, that he had
by miſtake put in his ball for approbationi, which lie meánt and intended to be
againſt approving him.' It was propoſed' to ballot over again;' but the pre-
fident conſidered and declared this to be an approbation by a majority of votes
on the ballot. On Dr. Letch's being propoſed to the Comitia majora, nine-
teen to three of the members preſent were againſt putting the college-ſeal to
his letters teſtimonial ; and he was informed that he was not elected.'
“ His counſel inſiſted, that, having been returned fufficient by the Comitia
minora, he had thereby acquired an inchoate right to admiſſion, which the
court would enforce the coinpletion of by Mandamus.”
Theſe few facts being premiſed; the author is deſirous of proceeding to
the ſpeeches delivered by lord Mansfield in the fereral applications to the
court between the years 1768 and 1771 incluſive: He humbly conceives,
that greater erudition and penetration cannot eaſily be found than are diſco-
verable in theſe fpeeches. The lord chief juſtice was ſucceſsful in his ardu-
ous efforts to repreſs the zeal of the licentiates, on the one hand, by repeated
defeats; and to moderate, on the other, by falutary and well-timed admonis
tion, the triumphs of the college of phyſicians.
1
j
Lord Mansfield faid, “ He had no doubt what ought to be done; and
therefore, he would not keep the gentlemen of the faculty any longer in
fufpence.
- The counſel for the college have admitted the juriſdiction of this court;
and they certainly have juriſdiction over corporate bodies, to ſee that they
act agreeably to the end of their inſtitution.
" There is no doubt, that where a party, who has a right, has no other
ſpecific legal remedy, the court will aſſiſt him by iſſuing this prerogative
writ, in order to his obtaining ſuch right *.
- There can be as little doubt, that the college are obliged, in conformity
to the truſt and confidence placed in them by the crown and the public, to
admit all that are fit, and to reject all that are unfit; for, under the reaſon,
and ſpirit, and true conſtruction, of this charter and this act of parliament, no
---
Vide 2 Burr. 1045, and 3 Burr. 1266, 1267, and 1659, 1660.
perfon
I u 2
..
N
332
THE LIFE OF
perſon ought to be ſuffered to practiſe phyſic, but ſuch only as have ſkill and
ability, and have diligently applied themſelves to the ſtudy, and are well
grounded in the knowledge, of it; and, on the other hand, all perſons who
are ſo qualified, and have beſtowed their time, and money, and labour, in the
proper
ftudies that tend to fuck qualifications, have a right to be admitted
to exercife and practiſe their profeſſion. And the public have alſo a right
to the aſſiſtance of ſuch a perſon, who has by his labour and ſtudies ren-
dered himſelf capable of ſerving the publick by giving them. proper advice
and directions.
“ It is true, that the judgement and diſcretion of determining upon this
ſkill, ability, learning, and ſufficiency to exerciſe and practiſe this profef-
fion, is truſted to the College of Phyſicians; and this court will not take it
from them, nor interrupt them in the due and proper exerciſe of it. But their
conduct in the exerciſe of this truſt, thus committed to them, ought to be.
fair, candid, and unprejudiced ; not arbitrary, capricious, or biaſſed, much leis :
warped by reſentment or perſonal diflike.
“.Caſes indeed may happen, where the rejection may be founded upon other ,
grounds than inſufficiency in point of ſkill and ability, or knowledge. It is
poſſible that other cauſes of rejection may occur, as badneſs of morals, for
inſtance.
But, in the prefent caſe, they ſeem to have-acted with candour --and:
caution. Some of the gentlemen even make oath of their reaſons againſt
admitting this candidate for a licence. Objections to perſons applying for
licences to practiſe phyfic may be grounded on a variety of reaſons; and
the court are to judge of ſuch objections and the reaſons of them.. If they
are inſufficient, the court may grant a Mandamus.
“ If they ſhould refuſe to examine the candidate at all, the court would í
oblige them to do it. In a manuſcript book of reports, which I have ſeen,
the reporter cites, in reporting Di. Bonham's caſe, a Mandamus in the time
of Edward III. directed to the Univerfity of Oxford, commanding them to
reſtore a man that was bannitus; which ſhews both the antiquity and extent of
this reinedy by Mandamus ; but the court ought to be ſatisfied that they
have ground to grant a Mandamus; it is not a writ that is to iffue of courſe,
or to be granted merely for aſking.
“ The queſtion therefore is, “Whether here is a proper and ſufficient
ground for our granting a Mandamus?
3
«Confi-
WILLIAM EARL OF MANSFIELD.
333
* Conſider, then, what are the grounds of this application.
“ First, Dr. Letch cannot diſpute theſe bye-laws. This point is not open
to him. For, without them, he has no ground to ſtand upon; he has never
been examined by the body at large ; therefore he is under a neceſſity, upon
this application, of allowing the bye-laws to be good.
- The queſtion then will be, Whether the power is devolved on the pre-
fident and four cenfors, or remains with the body at large?
“I am clear, that the power remains with the body; and that the examina-
tion by the preſident and four cenſors is only preparatory, and for the eaſe.of.
the body at large.
“ There are various inſtances of delegations of a like kind. Biſhops refer
examinations of clergymen to their chaplains ; fo univerſities refer examinations
to ſelect parts of their bodies; but the dernier determination is in the body at..
large.
“ Thèſe: cenſors, to whom this examination is referred, take an oath, not:
to approve of unfit perſons, nor reject ſuch as are fit.'
“ The uſage has been, to refer the examination of the perſon applying for
a licence to the Comitia minora, as more eaſy, and more convenient to be
executed by a ſmall than by a large number of examiners; but. every fellow..
has notice of it, and may examine and argue with the candidate, though he :
has no vote at theſe Comitia minora; ſo that every fellow has an opportunity
of informing himſelf, and ſatisfying his own judgement concerning the ſuffi-
ciency of the candidate. The Comitia minor a have no power, upon their
ap-
probation, to admit the candidate ; they have only power to approve. If
they do approve, then, the perſon ſo approved by them is to be afterwards
propoſed to the. Comitia majora for election ; and if, upon being ſo propoſed,
he ſhall be elected, then he is to be admitted.
“Suppoſing the Comitia majora to execute their power corruptly, taking tħiş
word in a large ſenſe; and that they ſhould refuſe to admit a perſon who had
been examined, approved, and regularly propoſed to them, without being
able to deny, his fitneſs; this court ought indeed, in ſuch a caſe, to in-
terpoſe. .
“ But that is not pretended, or even hinted, to be the preſent caſe, with
reſpect either to the Comitia majora or the Comitia minora.
“ Dr. Letch charges them with nothing of this kind, nor with any thing
to which it is requiſite for them to give an anſwer : his counſel rely on the
sfage.
46 The
THE LIFE OF ::
1
3
334
- The queſtion therefore is, 'Whether the Comitia majora have acted
corruptly?'
Now, they have only referred him to a ſecond examination in future ;
they have not abſolutely rejected him.
66.At the Comitia minora, there were three' who, in truth, meant and in-
tended to ballot againſt Dr. Letch, though one of them made a miſtake and
balloted for him, which miſtake was declared and taken notice of at the
very time; and it was propoſed to ballot over again ; and this was diſcloſed
to the Comitia majora.
- This fact (of a miſtake in the ballot for approbation) being diſcloſed to
the Comitia majora; was it not extremely reaſonable for them to refer the
candidate to a farther examination? I ſee no injuſtice in this: the intention
of the ballot was, that he ſhould be reported unfit; and two of the cenſors
now ſwear that they thought bim fo..?
is I am fatisfied that the Comitia majora had the power of rejecting him;
and it does not by any means appear that they have acted upon improper
grounds, or arbitrarily and capriciouſly.
66 Here is no ground laid for demanding a Mandamus.'
His lordſhip concluded with a recommendation to the college, to ſettle
all other matters among themſelves without coming to this court; at the
fame time intimating to them a caution againſt narrowing their grounds of
admiſſion ſo much, that if even a Boerhaave ſhould be reſident here, he
could not be admitted into their fellowſhip.
The rule was diſcharged, by the unanimous opinion of the court.
Two terms afterwards, viz. on Friday the 20th of November, 1767;
Sir Fletcher Norton moved for a rule upon Dr. Aſkew and others
(the four then cenſors), for them to ſhew cauſe why an information, in na-
ture of a Quo Warranto, ſhould not be granted againſt them, to ſhew by
what authority they acted as cenſors of the College of Phyſicians.
The objection was, that whereas the election ought to be by the whole
body, theſe gentlemen had been eleEted only by a ſelect body; namely, by
the fellows, excluſive of the licentiates; though the licentiates demanded ad-
mittance, which was refuſed to them by the fellows, on pretence of their
having no buſineſs there on that occaſion,
It was argued on Thurſday the 21ſt of April, 1768, by Sir Fletcher
Norton and Mr. Morton, for the licentiates; and on Monday the 25th of
4
April,
WILLIAM EARL OF MANSFIELD.
335
+
-
April, 1768, by Mr. Yorke (then attorney-general), Mr. Dunning (then
folicitor-general), ſerjeant Davy, Mr. Aſhurſt, and Mr. Wallace, for the
college; and Mr. Wedderburn, for the licentiates. On Wedneſday, the 27th,
ſerjeant Glynn, Mr. Walker, and Mr. Mansfield, proceeded on behalf of the
licentiates; and on the ſame day the court gave their opinion.
Lord Mansfield took notice, " That the figure and conſequence of the
contending parties, and the reſpect due to them ; the anxiety that has ap-
peared in the conteſt, and perhaps the ſpirit which has been raiſed on both
fides in the courſe of it, have carried the counſel concerned into a very
great length of argument, and into the diſcuſſion of a variety of matter fo-
reign to the point directly in queſtion before the court upon the preſent
motion.
“ The queſtion properly now before us is fingly this, whether the per-
fons applying for this information are fellows, and intitled to vote in the election
of cenſors ?' If they are, the election of theſe cenſors, being made in ex-
cluſion of their votes, is not good. If they are not fellows, and have no
right to vote in the election of cenſors, then this election ſtands unim-
peach:d.
" I conſider the words focii, communilas, collegium, focietas, collega, and
fellows,' as ſynonymous terms ; and every focius or collega, as a member of
the ſociety, or corporation, or college. The queſtion is, whether theſe li-
centiates are focii, or college, or fellows?'
66. The faets are not diſputed ; and there is no doubt, about the law, as far:
as relates to the queſtion now before us.
“ Here is a charter of incorporation ; and it has been admitted on both
fides, that there has been a great number of liye-laws and long ufuges, which
are agreed to appear upon their books and the extracts from them; and the
permiſſion of theſe licentiates to practiſe is not diſputed.
" But I doubt whether this permiſion to praktice, and theſe letters teſtimo-
nial, can amount to an admiſſion into the fellowſhip of the corporation or
college.
“. Nothing can make a man a fellow of the college without the act of the
college. The firſt act to be done by them is their judging of the qualifica-
tions of the candidate. The admiffion into the fellowſhip is an act ſubſe-
quent to that. The main end of the incorporation was to keep up the fuc-
ceſſion.; and it was to be kept up by the admiſſion of fellows after exami-
nation
336
THE LIFE OF
---
nation. The
power of examining, and admitting after examination, was not
an arbitrary power, but a power coupled with a truſt. They are bound to ad-
mit every perſon whom, upon examination, they think to be fit to be ad-
mitted, within the deſcription of the charter and the act of parliament
which confirms it. The perſon who comes within that deſcription has a
right to be admitted into the fellowſhip. He has a claim to ſeveral exemp-
tions, privileges, and advantages, attendant upon admiſſion into the fellow-
thip; and not only the candidate himſelf, if found fit, has a perſonal right;
but the public has alſo a right to bis ſervice ; and that not only as a phyſician,
but as a cenfor, as an ele&tor, as an officer in the offices to which he will, upon
admiſſion, become eligible. In Dr. Letcli's caſe, the reafons for his re-
jection being called for; the anſwer was, that they judged him to be unfit;
and, as the legiſlature have veſted the judgement in the Comitia majora ; and
there was no pretence or ground to pretend that they had acted corruptly,
arbitrarily, or capriciouſly; that anſwer was eſteemed a fufficient one; and
they have power, not only by their charter, but by the law of the land, to
make fit and reaſonable laws, ſubject to certain qualifications.
“ It appears, from the charter and the act of parliament, that the charter
had an idea of perſons who might practiſe phyfic in London, and yet not
be fellows of the college. The preſident was to overlook not only the col-
lege, but alſo omnes homines ejufdem facultatis ;' ſo, when the college or cor-
poration were to make bye-laws, theſe bye-laws were to relate not only to the
fellows, but to all others practiſing phyſic-within London or ſeven miles of
it. The reſtraint from practiſing phyſic is thus expreſſed, nifi ad hoc ad-
.miſſus fit by letters teſtimonial under their common ſeal.' Now what does
this. - ad hoc' mean? It muſt mean, 'ad exercendum facultatem medicinæ ad-
miſus ſit;' and this is agreeable to the words uſed in 3 H. VIII. C. II. .con-
cerning admiſſions by the biſhop of London and dean of St. Paul's. The fu-
perviſal of the cenſors is expreſſed to include not only the phyſicians of
London, but omnes etiam qui per feptem milliaria in circuitu ejuſdem medicinam
exercent. The ſame obſervation holds as to puniſhments. This muſt regard
thoſe who had a right to practiſe in London and within ſeven miles of it,
and were not fellows of the college.
" Theſe obſervations.convince me that the charter had an idea that
ſome perſons might praktiſe by licence under their ſeal, who were not fellows of
the college
rt Then
WILLIAM EARL OF MANSFIELD. .
337
Then let us ſee how the uſage was.
• In 1555, they muſt have had a probationary licence, before admiſſion
into the college. Afterwards it was to be a probation for four years before.
admiſſion. The college might grant ſuch probationary licences with ſome
reaſon, and agreeably to their inſtitution. This ſhews that fune licences
were granted to perfons not fellows of the college. The 3 H. VIII. C. II.
takes away all former privileges ; and ſays, that no perſon within London,
or ſeven miles of it, ſhall exerciſe as a phyſician, except he be firſt exa-
mined, approved, and admitted, by the biſhop of London, or by the dean
of St. Paul's, calling to them four doctors of phyſic; and the charter and
ſtatute confirming it have left every thing at large to the college, no way
confined or reſtrained but by the fitneſs of the objects. In. 1561, a partial
licence was granted to an oculiſt; a perſon may be fit to practiſe in
one branch who is not fit to practiſe in another. Licences have alſo
been granted to women; and that may not be unreaſonable in parti-
cular caſes; as, for inſtance, ſuch as Mrs. Stevens's medicine for the
ſtone. Partial licences have been given for above 200 years. Of late
years, indeed, general licences have been uſual ; and the perſons applying
for them have been examined, though not meant to be members of the cor-
poration or college. In 1581, notice is taken of three claſſes, fellows, can-
didates, and licentiates ; and from that time they have given licences to
practiſe. The licences probably took their riſe from that illegal bye-law
(now at an end) which reſtrained the number of fellows to twenty. This
was arbitrary and unjuſtifiable ; they were obliged to admit all ſuch as came
within the terms of their charter ; yet it is probable that the practice of li-
cenfing was in conſequence of their having made it. However, for above
100 years, there has been a known diſtinction between fellows and licentiates;
it is as well known as the diſtinction between graduates and under-gra-
duates at the Univerſities.
" This being premiſed, let us enquire who theſe gentlemen are that
are now applying to the court.'
They are perſons who ſet up a title directly contrary to the senſe in
which their licence is given to them, and received by them. They cannot
avail themſelves of their inſtrument in this way; it would be a cheat upon
the
college ; and they have acquieſced many years under this licence given them
by the college, as merely a licence to practiſe.
!
:
Χ Χ
< But
338
THE LIFE OF
*** But even ſuppoſing them to have a right to be fellows ; yet, as it is clear
that the licence does not make them ipfo facto fellows, they could not vote
in the election of cenſors before their admiſſion to the fellowſhip; and there--
fore the excluſion of their votes cannot impeach this election.
“ I am of opinion that this rule ought to be diſcharged.'
“ If my brothers ſhould concur with me, the college, as now conſtituted,
is at preſent to be conſidered as the body corporate. I have a great reſpect
for this learned body; and, if they ſhould think proper to hearken to my
advice, I would wiſh them to conſider whether this may not be a proper
opportunity for them to review their ſtatutes. And I would recommend it
to them to take the beſt advice in doing it; and to attend to the deſign and
intention of the crown and parliament in their inſtitution. I fee a ſource of
great diſpute and litigation in them as they now ſtand; there has not, as it
should ſeem, been due conſideration had of the charter, or legal advice
taken in forming them.
6. The ſtatute of 14 and 15 H. VIII. C. 5. after reciting the charter,
mentions it to be expedient and neceſſary to provide, “that no perſon of the
faid politic body and commonalty, aforeſaid be ſuffered to exerciſe and
practiſe phyſic, but only thoſe perſons that be profound, ſad, and diſcreet,
groundedly learned, and deeply ſtudied'in phyſie:*
“ I do not fay, that no man can be a licentiate, who is not perfectly and
completely qualified to be a fellow of the college. Many perſons of no
great ſkill or eminence. have been licenſed ; and there ſeem to be fewer:
checks, guards, and reſtrictions, upon granting licences, than upon the
choice of fellows. Yet it has been ſaid, that there are many among the
licenfiates, who would do honor to the college, or any fociety of which they
should be members, by their ſkill and learning, as well as other valuable and
amiable qualities ; and that the college themſelves, as well as every body
elfe, are ſenſible that is in fact true and undéniable.' If this be fo, how can :
áhy bye-laws, which exclude the poſſibility of admitting fucb perſons into the
college, ſtand with the truſt repoſed in them, of admitting all that are fit po-
If, their bye-laws interfere with their exerciſing their own judgement, .or:
prevent them from receiving into their body perſons known or thought by
thèm to be really fit and qualified; ſuch bye-laws require regulations.
Such of them, indeed, as only require a proper education, and a ſufficient
degree of ſkill: and qualification, may be ſtill retained. There can be no
objection
1
WILLIAM EARL OF MANSFIELD,
339
1
I
objection to cautions of this ſort ; and the rather, if it be true, that there
are ſome amongſt the licentiates, unfit to be received into any ſociety. It
is a breach of truſt in the college, to licenſe perſons altogether unfit.
“ I do not chooſe to ſpeak more particularly; but I recommend it to thoſe
who are now likely to be eſtabliſhed the maſters of the college, to take good
advice upon the points I have been hinting to them.
“ The court were unanimous in diſcharging the rule.
they
“ On Thurſday the 17th of November, 1768, Sir Fletcher Norton and
Mr. Morton moved the court on behalf of Dr. Edward Archer, and Mr.
Walker on bchalf of Dr. Fothergill, for writs of Mandamus, to oblige the
college to admit theſe two licentiates ; with an intention to try the queſtion,
* whether the licentiates had a right to be admitted fellows ;' and that liti-
gation laſted till the 6th of June, 1771; but they only came round to the
fame point which had been already determined as above. For theſe two
gentlemen had accepted licences under the bye-law of 1737; and the court
were of opinion, that they ought not afterwards to deſert it, and treat it
as null and void, and ſet up a right of admiſſion under the charter, upon
the foundation of this very licence which they had accepted under the bye-law,
upon a ſuppoſition that the bye-law was a bad one;' fo that the return was
allowed, upon that objection to their claim; and the intended queſtion re-
mained unſettled.
“ Lord Mansfield renewed his former hint, by ſaying, the college will
now conſider, whether they will truft to a return upon theſe bye-laws; or
mend them."
+
Sir James Burrow adds,
"I am informed that they have done the latter."
In 1771
*, the diſpute between the college of phyſicians and the
licentiates was again revived ; and the vexata queſtio, “ Whether
the latter had a right to be fellows or members of the faculty of
5 Burr.
2740.
X x 2
phyſic,"
.
1
340
THE LIFE OF
phyſic,” was reſumed, argued, and re-argued, with unabated eager-
neſs and ſpirit on both ſides.
Dr. Fothergill's caſe ſtood in the Crown Paper of Saturday the
21ſt of April, 1771; and was then argued by ferjeant Glynn for
the doctor, and ferjeant Davy for the college. It was not then
determined, nor did the court declare any opinion : indeed, they
ſtrongly recommended an agreement between the very reſpectable
perfons concerned in this diſpute. But thoſe gentlemen not ſhew-
ing any great inclination to a compromiſe, it ſtood for further
argument: and it was now a ſecond time argued, by Mr. Mor-
ton for the doctor, and Mr. Wallace for the college: It would
be too tedious to ſpecify the arguments at large. But, as they all
aroſe out of the new mandamus and the return to it, the ſtating of
the writ and return (with exactneſs and preciſion) will, as Sir
James Burrow obſerves, convey to the reader a complete idea of
the nature of the licentiates' claim, and the college's defence,
and of the whole conſtitution of this learned faculty; and will
enable him to judge for himſelf, what were the proper arguments
to be drawn therefrom ; as well as explain to him the reaſon upon
which the court rejected the claim of the licentiates “ to be ad:
mitted members of the corporation."
The author of theſe ſheets begs leave to refer the juriſprudent
to the long and correct report of the legal proceedings in general,
and particularly the writ and return of it in 5
The
very attentive confideration which lord Mansfield gave this im-
portant buſineſs cannot be analyſed or abbreviated without ma-
nifeſt injuſtice to his ſpeeches; and the reader will, it is to be
boped, accept of this apology for the length of them.
Lord Mansfield faid, "He had foreſeen the labyrinth * and maze of litiga-
tion that this learned body would be involved in, by perſiſting rigidly on both
Burr. 274-3:
* Vide 5 Burr, 2759.
.
fides
WILLIAM EARL OF MANSFIELD.
341
care
con
fides in purſuing the points of their diſpute, and conteſting about a feather.
He ſaid, he read over all their conſtitutions, ſtatutes, and bye-laws : and he in-
tiinated, that many of them are narrow, if not illegal.
“ This matter came on, before, upon a title not ſet out in the writ. A
title is now ſet out; which title is a licence from the college, after having
been duly examined and approved, 'to exerciſe the faculty of phyfic in the
city of London, and for ſeven miles round the ſame.' If that alone makes
him ipfo facto a fellow of the college, there is no need of admiſſion. The
return admits the four acts of parliament ſtated in the writ, and alſo admits
the licence: but they deny it to be a conſequence, 'tliat by reaſon of the pre-
miſes he became lawfully intitled to be admitted a member of the ſaid col-
lege, and commonalty, and corporation, as by the writ is ſuppoſed.' Then
they ſet forth the uſage ever ſince the making of the acts of parliament; that
every perſon admitted a member muſt be, before his being admitted a mem-
ber, eleEted to it by the preſident and college; and that the doctor had never
been ſo elected. Then they ſet forth the bye-law * to the ſame effect; and
that he has not been elected a member according to that bye-law. They then
fet forth another bye-law up, which divides the faculty into three claſſes, vizi
members of the college ; candidates for election into ſuch memberſhip (who
were to be examined and approved of by the preſident and cenſors to be
candidates for election); and licentiates, or permiſſi. They ſet forth another
bye-law *, that nobody ſhould be admitted into the ſociety of the college,
who ſhould not firſt have been of the number of candidates for one whole
year, of publicly read phyſic for three years in ſome univerſity of Britain,
or been doctor of the chair in fome Univerſity of this kingdom, or ordinary
King's phyſician. They ſet forth another bye-law Ś; that nobody ſhould be
admitted into 'ihe order of fellows, who ſhould not have been a candidate--
for one whole year ; except the King or Queen's ordinary phyſician with
ſalary, or royal profeſſor of phyſic in Oxford or Cambridge.
They ayer that the doctor never was a candidate for one, whole year, or
any other time; and that he did not come within any of the exceptions in
theſe two laſt mentioned bye-laws. Then they ſet forth a fifth bye-law (made
* Feb. I, 1555.:
April 4, 1737;
of Feb. I, 1572
9. April 1, 1765.
at
342
THE LIFE OF
at the ſame * time with the third), whereby, reciting that many practiſed
plıyfic.in the city of London, whom the preſident and college, or common-
alty, deemed altogether unfit to be adopted into the number of fellows or
candidates, either becauſe they were not Britons by birth, or had not taken
the degree of a doctor, or were not fufficiently learned, or ſufficiently ad-
vanced in age and gravity, or for other like cauſes, and yet might be able
to ſerve the public, and do good to men's healths, at leaſt in ſome cures ;'
it was ordained, that, after due examination and approbation of the preſident
and cenſors, ſuch perſons fhould be permitted to practiſe, ſo long as they be-
haved themſelves well. That many perſons from time to time applied to be,
and according to, and in purſuance of this laſt bye-law, were, examined, and
approved by the preſident and cenſors for the time being, and licenſed and
admitted to exerciſe the faculty of phyſic in the city of London, and within
ſeven miles round the fame: and have been and are called and known by
the name of licentiates. They add further, that Dr. Fothergill applied to the
preſident and college, to be by them licenſed and admitted to exerciſe the
faculty of phyſic in the city of London, and within ſeven, miles round the
fame; and that he was thereupon, according to, and in purſuance of the laſt
mentioned bye-law, examined and approved by the preſident and cenſors,
and was licenfed and admitted by the preſident and cenſors, according to the
ſaid laſt-mentioned bye-law, to exerciſe the faculty of phyſic in the city of
London and for ſeven miles round it. And they aver this to be the exami-
nation, approbation, and admiſſion of him, in the writ mentioned : and
that he never was examined, approved, or admitted, to exercife the faculty
of phyſic in the city of London and within ſeven miles round the ſame, in
any other manner, or for any other purpoſe, than as and in order to his being
a licentiate as aforeſaid. Now, be this bye-law good or bad, yet the right
of admiſſion into the college is claimed under it. It would be 'a moft-un-
reaſonable thing, to accept this licence under the bye-laws, and yet to treat
theſe bye-laws as null and veid; and to turn this licence fo accepted againſt
the perſons from whom it was thus aecepted, and to ſet it up as the foun-
dation of a right to be admitted under the charter. Therefore, as no other
foundation of fuch right to be a fellow.is ſhewn, it comes round to the very
A
* April 4, 1737
*.
•
point
WILLIAM EARL OF MANSFIELD.
343
į
point upon which our former determination turned: and I am of opinion
that the return ought to be allowed.
“ By the court unanimouſly, Let the return be allowed.”
Lord Mansfield renewed the hint to the college, whether they
would think it adviſeable to truſt to a return upon their preſent
bye-laws; or whether they would not conſider about mending
them.
And fir James Burrow adds, “I have been told, that they have
ſince mended them."
9:
The juriſprudent will find much analytical reaſoning and deep
learning on the doctrine of mutual debts, and a lien on goods in
particular caſes towards ſatisfaction thereof, in a caſe reſerved for
the opinion of the court at a trial * at Niſ: prius at Guildhall,
before lord Mansfield; which cafe. was,, at the defire of the
parties, twice argued.
Lord Mansfield, in delivering the opinion of the court, obfervó
ed, among other things :
««That the general queſtion is, 6 Whether the plaintiffs in this action
ſhould be obliged to do juſtice to the defendants, by paying what is due to
them, before they are intitled to demand the goods from them; and to re-
cover their value, in caſe of refuſal."
“Natural equity ſays, that croſs demands ſhould compenſate each other
by deducting the leſs fum from the greater ; and that the difference is the only
füm which can be juſtly due...
“ But poſitive law, for the ſake of the forms of proceeding and conve-
nience of trial, has ſaid that each muſt fue and recover ſeparately, in feparate
actions.
“ It may give light to this caſe, and the authorities cited, if I trace the
law relative to the doing complete juſtice in the ſame fuit, or turning the de-
fendant round to another fuit, which, under various circumſtances, may be
of no avail.
:
* Green and another againſt Farmer and another. 4. Burr. 2214.
66. Where
5.
344
THE LIFE OF
.
**
.... Where the nature of the employment, tranſaction, or dealings, necef-
ſarily conſtitutes an account conſiſting of receipts and payınents, debts and
credits; it is certain that only the balance can be the debt: and by the proper
forms of proceeding in courts of law or equity, the balance only can be
recovered.
.“ After a judgement, or decree, : to account, both parties are equally
actors.
“ Where there were inutual debts unconnected, the law has ſaid they ſhould not
be ſet off; but each muſt ſue. And courts of equity followed the ſame rule,
becauſe it was the law; for, had they done otherwiſe, they would have
ſtopped the courſe of law in all caſes where there was a mutual demand.
The natural ſenſe of mankind was firſt ſhocked at this, in the caſe of Bank-
rupts : and it was provided for by 4th Anne, c. 17. 11. and 5 Geo. II.
Ć. 30. § 28 *. This claufe muſt have, every where, the fanie conſtruction
and effect; whether the queſtion ariſes upon a ſummary petition, or a formal
bill, or an action at law. There can be but one right conſtruction : and
therefore, if courts differ, one muſt be wrong.
Where there was no bankruptcy, the injuſtice of not ſetting off (eſpecially
after the death of either party) was ſo glaring, that parliament interpoſed by
2 Geo. II yp. and 8 Geo. II. C. 24. $ 5. But the proviſion does not go to
goods, or other ſpecific things, wrongfully detained : and therefore neither
courts of law nor equity can make the plaintiff who ſues for ſuch goods pay
firſt what is due to the defendant, except ſo far as the goods can be conſtrued
a pledge ; and then the right of the plaintiff is only to redeem.
The convenience of commerce, and natural juſtice, are on the ſide of
liens: and therefore of late years, courts lean that way. iſt, Where there
is an expreſs contract'; 2dly, Where it is implied from the uſage of trade; or,
gdly, From the manner of dealing between the parties in the particular caſe ;
4thly, Or where the defendant has acted as a factor.
The caſe ex parte Ockenden was well conſidered. Lord Hardwicke's bias
was ſtrong on behalf of liens : and his own determination in that caſe ex
parte Deeze had been almoſt in point: yet he took time to conſider it and
*
.
Directing mutual demands to be balanced.
in the Sect. 13. for ſetting off mutual debts againſt each other.
ſearch
1
WILLIAM EARL OF MANSFIELD.
345
ſearch for precedents. And, after conſideration, he thought he could not
conftrue it within the inutual-credit clauſe of the bankrupt-act; unleſs it
could be fo conſtrued in an action of trover (and that is certainly ſo). He
reſted upon there being no room, in that caſe, to imply a lien from uſage of
trade, or from the particular manner of dealing. This caſe, and that ex
parte Deeze, are well reported in the printed books : but I will read you my
note of both. (Accordingly, he read his own note of the caſe.) This was
in Auguſt, 1754; and it ſtood over : and on the 20th of December, 1754, no
precedents being found, he determined accordingly; and no precedents are
cited ſince the 20th of December, 1754. Then his lordſhip read his own note
ex parte Deeze, on the bankruptcy of Norton Nicholls, “ That the aſſignees
could not take the goods from the petitioner without inaking ſatisfaction for
the whole of his debt. As to a lien in that caſe, from the nature and courſe
of dealing, the evidence is not clear.” The opinion was, that the petitioner
ſhould be paid his debt, before the goods were taken out of his hands.'
Though lord Hardwicke took notice of the evidence of uſage, lie faid
it was not very clear. He thought it hard that mutual credit ſhould only
relate to pecuniary demands; though goods can only be paid for in money:
and, in that caſe, there was an account between the parties; wine on one ſide,
and package on the other. I have enquired into the caſe ex parie Deeze, and
the affidavit of the book-keeper (which he particularly ſtated). If the uſage
there ſtated be true, the packer was in the nature of a factor; and, as ſuch,
had a lien for the general balance. It was ſettled in 1755, that a packer,
being in the nature of a factor, would be intitled to a lien. Apply this to
the caſe ex parte Ockenden, and to the preſent caſe. In this caſe, the defen-
dant acts in no reſpect as a factor'; but merely as a manufacturer, to dye.
There is no expreſs contract to pledge ;' no uſage of trade; no argument
from their particular dealing : on the contrary, it appears that he truſted to
Meſſrs. Heinzleman's perſonal credit only. The defendants never detained any
goods to anſwer their debt; but, from the iſt of January to the roth of
Fune, gave all back; for the dying of which they now claim to detain;
without having any new cloths fent in. After notice of the failure of Heinzle-
man, they delivered eleven pieces to Aſton and Hodgſon, without a
claim.
“ It is ſufficient, that no contra£t can be implied, to give a lien for the
balance, from any uſage of trade or manner of dealing : but it is much
ſtronger, when the manner of dealing Thews the contrary, and that the defen-
dants
Y y
1
346
THE LIFE OF
dants relied on perſonal credit only. Therefore we are all of opinion, that
there is no lien here, beyond that which is given by the general rule of law 5
which never was diſputed.”
UniverGty of Cambridge.
Rex verſus Agar et O'Meara *.
On the firſt day of Hilary Term Mr. Wallace moved for a rule
upon the proſecutor, to ſhew cauſe why conuſance ſhould not
be allowed to the Univerſity of Cambridge. He had in court the
warrant of attorney, the claim of conuſance, the charter, and
the act of parliament.
The court gave him the following rule:
“Upon reading the warrant of attorney of the chancellor, maſ-
ters, and ſcholars of the Univerſity of Cambridge, and the claim
of conuzance of the indictment againſt the defendants in this
cauſe; and the proceedings thereon by the ſaid chancellor, maſa.
ters, ant ſcholars of the ſaid Univerſity enrolled in this court;
and the exemplification of the letters patent and act of parlia-
ment in the ſaid claim mentioned; and alſo the certificate of the
faid chancellor, maſter,., and ſcholars, and the affidavit of the
faid defendants'; it is ordered, that Wedneſday next be given to
the proſecutor to ſhew.cauſe why the ſaid claim of conuſance by
the faid chancellor, maſters, and ſcholars, ſhould not be allowed ;
upon
notice of this rule, to be given to the proſecutor in the:
mean time,”
9...
The indictment was found at the quarter ſeſſions at Cambridge;":
holden on April 12, 1771. It was for an aſſault' and battery,
committed upon the 18th of March preceding, by the defendants,
Agar and O'Meara, upon Thomas Fletcher, the Univerſity prin..
ter, at a public coffee-houſe in Cambridge...
Monday, February 3, 1972.
5.
Lord
j
WILLIAM EARL OF MANSFIELD.
347
A
Lord Mansfield delivered the opinion of the court.
“ Taking it at preſent for granted, that this claim ought to be allowed,
if made in due time and in proper manner;' it will be proper firſt to conſider
the objection as to its not being made in due time.
“ The eſtabliſhed rule of law is, that conulance muſt be claimed in the
firſt inſtance, or at the firſt day.' And this muſt be admitted to be a very
proper and reaſonable rule ; for, if there were not ſome reſtriction as to the
time of claiming conuſance, inconvenience would enſue. If the claimant
was permitted to come at any time, he might ſuffer the cauſe to be almoſt
gone through before he made his claim, which would be an apparent pre-
judice to ſuitors; therefore, if you will interrupt the ordinary courſe of
juſtice, you ought to ſtop the plaintiff or proſecutor in the firſt inſtance.
" Though all the antient reſolutions concur in this opinion, yet there has
þeen variety of opinions - what ſhould or ſhould not be accounted a coming in
the firſt inſtance within the rule.' And this notion of coming in the firſt
inſtance, which ſome had faid muſt be the firſt day,' others' that it muſt
be every day,' is to be expounded, according to the authorities, by the truc
meaning and reaſon of the rule, and not in every caſe to be ſtrictly con-
fined to the ſame point of time. For inſtance, the return of the original writ,
in treſpaſs, where place is named, or præcipe quod reddat, where land is de-
manded, may be the firſt inſtance, becauſe, in theſe caſes, the writ tells where
the cauſe of action ariſes. But in debt or detinue it is. otherwiſe ; for, it is
not known where the contract or abligation was made ; and therefore, till the
plaintiff has counted, the claim needs not to be made. So in replevin, the place
where the cattle were taken does not appear, till the plaintiff has counted,
if it be between ſtrangers; but if a replevin is fued againſt the lord of the
franchiſe himſelf, there the lord's claim would come too late after the
count, becauſe the law intends that he knew where the taking was made,
being himſelf a party; and fo, by not demanding his privilege on the writ,
he
gave the court feifin of the cauſe; for the lord muſt uſe no delay.
From theſe authorities two conclufions follow, and theſe two propofitions
may be laid down. Firſt, that before any perſon is bound to claim conu-
ſance, he is intended by law to have had ſome legal notice of his franchiſe
being intrenched upon ; and therefore it is faid to be named conuſance. Se-
condly, that, in order to bar him from making the claim, there ought to
be
Y y z
!
348
THE LIFE OF
be foine laches, or default, in him, and a time Thewn when he might have
claimed it ſooner after ſuch legal notice.
6.6. The court are now to judge upon this claim, and the certificates and
affidavits.
“ Let us ſee then, from the facts appearing to the court, whether a time
is ſhewn when the law will intend that they had conuſance of the matter be-
ing within their franchiſe, and whether any default has been made, and
time lapſed when the clalm might have been ſooner preferred; and whether
the court was become fully feiſed of the cauſe at the time when the claim
was actually made.
“ The facts are there :: The affault is ſworn to have been committed on
the 18th of March laſt, at a public coffee-houſe in Cambridge; and it is ſo
laid in the indictment. The indictment was preferred, and found on the
.
1:2th of April. The defendant O'Meara was matriculated on that day. It is not
material, on the preſent queſtion, whether it was before or after the bill was pre
ferred. Both defendants appeared at the ſeſſions, in purſuance of a recognizance
entered into by them for that purpoſe before a juſtice of the peace of the town
and county, to anſwer for that affault'; but they did not plead! Between that
April ſeſſions and the following Midſummer feſfions, a warrant is obtained from
me, againſt the defendants, upon the uſual certificate of an indictment
being found, and that the defendants had not pleaded.' The defendants
thereupon entered into a ſecond recogirizance with freffi fureties. 6to appear
and plead at the next quarter-ſeſſions.” The defendants ſued out a Certiorari,
teſted the 19th of June, the laſt day of Trinity Term, returnable on the
Morrow of All Souls, to remove the indictment, and entered into the uſual
recognizance 'to plead to it, and try it at the next affīzes for the county of
Cambridge.' The defendants appeared at the Midſummer ſeffions; and, be-
fore they made uſe of their writ of Certiorari, moved, by their counſel, to
ſtay proceedings on the indictment;. alleging, that the Univerſity of
Cambridge had conuſance of it.' Their motion was refuſed"; and then they
produce the Certiorari. Upon the 5th of November, the warrant of attorney
is made to claim conuſance.”. Upon the 6th the conuſance is claimed; and
which is by the claim alleged to be on the Morrow of All Souls.
• Here, then, is 'legal notice that the offence was committed, “and pro-
fecuted too within their franchiſe on the 12th of April ;' for, it ſo appears
upon the face of the record, and therefore, it is as ſtrong as where the law
ina
CC
WILLIAM EARL OF MANSFIELD.
349
to
intends notice from the writ, where the cauſe of action ariſes in the caſes al-
luded to.
The proceedings upon this indictment have been in the uſual courſe, in a
Court of Record within the franchiſe : and the defendants were bound to
appear, and anſwer to the indictment (if found againſt them) at the April
feſſions. But it is not neceſſary to determine, that the claim ſhould have
been made then :' for, they were bound by the fecond recognizance,
appear and plead at the Midſummer feffions ;' and they did then appear, and
made an ineffectual.effort to take advantage of the clain of the univerſity
againſt the juriſdiction of the ſeſſions.
Here then is a time ſhewn when the Chancellor, Maſters, and Scholars of
the univerſity, might have made their claim. And there is no pretence to
fay that the proſecutor did any act to prejudice the lords of the franchiſe, or
ouſt them of it colluſively, or uſe any artifice to prevent their making their
claim in-due time. But they came too late. They did not uſe the writ of
Certiorari till after their inotion upon the claim had been heard and denied :
and when the claim was in fact made here, the court were in full pollefion of
the cauſe, upon the writ of certiorari, which was returnable upon the Morrones
of All Souls.
The claim muſt be diſallowed, and the rule diſcharged: -
The great importance of the cauſe of Morgan verſus Jones, the
intereſting circumſtance of a correct tranſcript of the Lord Chief
Juſtice's ſpeech on that important occaſion not. having hitherto
appeared in print, and the endearing evidence of his lordſhip’s
.
unremitted attention to the barriſters and ſtudents, in ſtating the.
caſe with brevity, yet with great..preciſion, and without the
omiſſion of any one material fact, limitation, or power--theſe
concurrent circumſtances are the beſt apology which the author
can make (who had the honor of being employed as counſel in
the cauſe) for the inſertion of the following legal ſpeech, replete
with found reaſoning; though deſtitute in a great degree of orna-
ments of ſtyle, or of the power to attract the attention of readers
of every denomination..
Tordi
350
THE LIFE OF
1
..
,
Lord Mansfield. 6. Sir William Morgan, at the time of making his will in
1731, was ſeiſed in fee of ſeveral lands in the counties of Monmouth and
Glamorgan, which he had purchaſed after his marriage, and likewiſe of
an equity of redemption of eſtates ſubject to a mortgage; and he was feiſed
in fee of ſeveral lands in the county of Brecon; beſides that, he was ſeiſed
of his great family eſtate in the counties of Monmouth and Glamorgan,
ſubject to the uſes of his marriage ſettlement; and the uſes of his marriage
ſettlement, as far as are at all material to the preſent queſtion, were in the
uſual way; the eſtate was ſettled to him for life, then ſubject to a jointure
by way of rent-charge to Lady Rachel, and the firſt and every other ſon of
that marriage; that is, of him by Lady Rachel, in tail male reverſion to him
in fee. Then there are terms created for the purpoſes of raiſing portions
for younger children upon the two uſual events of there being and not be-
ing a ſon, (the two uſual events guarded againſt). Theſe were the uſes of
the marriage ſettlement, at leaſt all of them that are material to be ſtated.
It
appears that he was then in a very bad ſtate of health; for, by comparing
the dates as ſtated in the caſe, the will bears date but about three weeks be-
fore his death ; and the ſtate of his family was, that his lady was then alive;
he had two ſons by her and two daughters; and under theſe circumſtances
he made his will; and as I have ſtated the two kinds of eſtates that he had,
that is, a reverſion in fee, ſubject to the uſes of his marriage ſettlement,
and likewiſe that which he could diſpoſe of, he makes different proviſions
with regard to theſe two eſtates ; for, ſeeing that his eldeſt ſon had a great
eſtate ſecured to him by the marriage ſettlement, with regard to all the other
lands of which he was ſeiſed in fee, purchaſed after his marriage, either in
Monmouth, or in Glamorgan, or in the county of Brecon, he gives them
to the duke of Devonſhire and other relations of his wife's family, on truſt
to pay his debts, and then he gives them to his ſecond ſon Edward in ſtrict
ſettlement, with remainder over to his ſon William and the heirs male of
.
and for default of ſuch iſſue, to the uſe and behoof of ſuch other fon of
mine lawfully begotten, as ſhall or may hereafter be born, for his life.'
Then to his firſt and every other ſon in tail male, exactly in the ſame man-
ner in which it is given to Edward and William, he makes the after-born
ſon a tenant for life in the ſame manner as he firit made Edward, and then
William, upon failure of him, and the iſſue male of his body; then he de-
viſes
1
.
i
WILLIAM EARL OF MANSFIELD.
351,
$
;
viſes to Thomas, his brother, for life, in ſtrict ſettlement, over to the heirs
male of his body. This is the diſpoſition of all the lands whereof he was
ſeiſed in fee, and could abſolutely diſpoſe of in poſſeſſion. Now the next
diſpoſition, which gave riſe to the following queſtion, regards the ſettled
eſtate; and the very particular words and meaning of the context, with the
real circumſtances of the family, are very material to be taken into confider--
ation and underſtood; and it is for that reaſon, and for the ſake of the bar,
and the ſtudents, that I ſtate ſo much of the caſe. c And for as much as it
is my will, intent, and meaning, that in cafe my ſaid two ſons now living,
or any other ſon or ſons of mine lawfully begotten, or hereafter to be born,
ſhould die without iſſue male of their bodies, or of the body of ſome or one
of them lawfully to be begotten after their reſpective deceaſe without iſſue
male, as aforeſáid (which ó as aforeſaid,' has a reference to the deviſe, that
he makes of his own eſtate, for there is no 'as aforeſaid connected to the
ſettled eſtate); that then, all and ſingular, my meſſuages, manors, royalties,
advowſons, parks, lands, tenements, and hereditaments whatſoever and
whereſoever, with their and every of their appurtenances, ſituate, lying, and
being within the ſeveral counties of Monmouth and Glamorgan, and not
hereinbefore deviſed, ſhall be deviſed and ſettled to and for the ſeveral
uſes, intents, and purpoſes, hereinafter"mentioned, expreſſed; limited, and
declared. It is therefore-my will, intent, and meaning, that in cafe my
faid fons William Morgan'and Edward Morgan, or any other ſon or fons of
mine hereafter to be born as aforeſaid, ſhall happen to die reſpectively
without any iffure male of their bodies, or of the body of ſome or one of
them, as aforeſaid, and in ſuch caſe, if it ſhall. fo happen, then I give and
deviſe the remainder (the expreſſion is remarkable and material to the argu--
ment)—I give and deviſe the remainder of all and fingular my meſſuages, .
manors, royalties, advowſons, parks, lands, tenements, and hereditaments
whatſoever and whereſoever,, wită their and every of their appurtenances,
fituate, lying, and being within the counties of Monmouth and Gla--
morgan, and not herein and hereby before devifal, and all the reverſions, to
my ſaid brother Thomas Morgan ; and he gives it to him in itrict ſettle--
ment, for and during the term:of: his natural.liſë, without impeachment of
wafte, ſubject to all the proviſions, clauſes, &c. .contained in his marriage
fettlement; and then there is a limitation over to the firſt and every other :
ſon of his brother. Thomas Morgan.' The event that happened was, fir:
William
352
THE LIFE OF
William died foon after ; lady Rachel is ſtill alive ; his fon Edward died
firſt, without iffue ; his ſon William died without iſſue; Thomas took pof-
ſeſſion of the eſtate upon the death of the ſurvivor of the two ſons of fir
William; he is dead. Upon his death the eſtate is come to Charles, who is
now in poſſeſſion. A queſtion is ſtarted on the part of the daughter of fir
William, that the deviſe to Thomas, the brother, of all the lands that were
contained in the marriage-ſettlement, is void, as too remote. But, before I
come to the queſtion, there is another part of the will that I ouglit to ſtate
to you; becauſe, in one light, as it ſtruck me firſt, it is very material to the
argument, and I do not know but it is ſtill, though, after. I had mentioned
it to the counſel, it ſtruck ine that it was not of the force it had firſt
ap-
peared to me; that is, the powers; for, after diſpoſing of both eſtates, then
follow theſe powers ; and, if they clearly relate to the whole, if they clearly
relate to the ſettled eſtate, they have vaſt weight in the determination. It .
may be anſwered, by ſaying, they relate to that eſtate that he had power to
deviſe; but there are no words that tie it up ſo. The words are theſe, - Pro-
vided always, and my will and meaning is, that it ſhall be lawful for my
eldeſt ſon William at any time during his life, and likewiſe to niy fon
Edward at any time during his life, and 10 any after-born ſon during his
life, to make (I do not ſtate technical terms) ' a jointure upon his wife by
deed, to grant portions to a younger child or children, and to make leafes,
with qualifications or reſtrictions to thoſe leaſes; and then it follows, upon
a proviſo, that his ſon Edward, notwithſtanding what he had deviſed to him,
ſhould, over and above that, be entitled to the proviſion that was created
for him, and the benefit of the younger children's portions; and that he
ſhould have the full benefit of all the marriage-ſettlement as a younger child,
norwithſtanding all the proviſion made for him by the will; and then comes
the power to Thomas Morgan, the ſon of Thomas Morgan, by virtue of the
limitations hereinbefore mentioned, to grant any leaſe, or grant under their
or either of their hands and ſeals the premiſes, or any part or parcels. Now,
you obſerve, that the reverſion of the ſettled eſtate is limited to Thomas, the
brother, for life; ſo that he had no eſtate under the will, either in the lands
that belonged to the teſtator abſolutely, or in the reverſion of the fee fim-
ple eftate; that fir William had but what is limited to him in ſtrict ſettle-
ment, and that is a material argument to conſtrue the powers as extending
to all the land; for, this power of leaſing given to the brother and his ſon
muft
WILLIAM EARL OF MANSFIELD.
353
.
*.
muſt certainly be meant to extend to all the land. Now this is the ftatc,
fituation, and circumſtances of the fanıily, under which the will was made.
And the queſtion that is ſtated is, whether the limitation over, of all the
lands compriſed in the ſettlement, is not void? If it is void, why then it
deſcends to fir William's heir at law, and that is his daughter ; for, fir
William had in him the reverſion in fee; and the reaſon upon which it is
contended that it is void is this, that the conſtruction muſt be, that it is
an executory deviſe to the brother, after the failure of iſſue male of fir
William's then marriage, and a failure of iſſue male of any ſubſequent
marriage; and that, with regard to any ſubſequent marriage, no eſtate being
limited to the iſſue male of that marriage, the conſtruction is, that they
were to take nothing at all under the will; that the fee ſimple would deſcend
to them, and, letting the fee ſimple deſcend, it is as if he had ſaid to them
and their heirs; that would not have done, for there the limitation would
have reſtrained it, but that he meant the iſſue male of a ſubſequent marriage
ſhould take a fee ſimple eſtate, and that the limitations he gives to his bro-
ther Thomas, allowing them to take a fee ſimple eſtate, was a fee upon a
fee, which can only be ſupported within terms which the law has laid down
to prevent perpetuity, and therefore cannot take effect after an indefinite
failure of iſſue. That is the whole ground upon which the queſtion turns ;
and what is to be determined is, whether that is the true conſtruction the
will. Now, it has been truly ſaid that to conſtrue a will, the intent of the
teſtator is to be taken from the whole will together, applied to the ſubject-
matter to which the will relates ; if that be agreeable to law, it muſt govern;
if the intent is clear, but not agreeable to law, it is void and null; if the
intent is clear and agreeable to law, no matter what words the teſtator has
made uſe of; the courts of juſtice where the queſtions ariſe, muſt adapt and
model his clear intent in ſuch manner as he himſelf might have done, if he
had made uſe of apt and legal terms. Another thing that has been ſaid, and
it is unfortunate when words happen to be made uſe of in the determination
of cauſes without a preciſe, clear, definite idea annexed to them ; for, the
great diſputes of the world ariſe upon words ; a great diſpute has been made
of what is neceſſary implication, and that a neceſſary implication muſt mean
that, when there is a natural impoſſibility that it ſhould be otherwiſe. There
never was ſuch a conſtruction put upon it. What is a neceſſary implica-
tion ?-It is that implication which ariſes upon the words the teſtator has.
made uſe of that clearly ſatisfies the court what was his meaning ; and that
)
Z z
is
354
THE LIFE OF
!
1
is
put in oppoſition to a conjecture ; you are not to conjecture what would
have been the teftator's meaning if he had had the whole caſe before him,
and if he had thought of ſuch an event what the teſtator would have ſaid
upon it. That is a conjecture; you muſt find out his meaning, whether ex-
preſſed or implied, from his words; and if it is an expreſs meaning and he has
made uſe of inaccurate words, you muſt conſtrue his words, . if they are
words of fenfe, or declarations which are no way accurate in legal phraſe.
You muſt fee clearly that it is the teſtator's meaning; and, if the teſtator's
meaning is doubtful, if a court of juſtice cannot ſay they are fatisfied his in-
tention was fo, the whole will be void for uncertainty. Therefore neceſſary
implication is that which leaves. no room to doubt. It is not an implication
upon conjecture; you are not to conjecture what he would liave done in an
event he never thought of; that will not do ; and many caſes liave been de-
termined upon that event; one I mentioned, the great caſe of Coryton and
Hellier, in 1745, determined by lord Hardwick; where a man by his will
meaning to make a marriage-ſettlement deviſes to A. and to prevent the en-
tail being barred, having no freehold he deviſes to A. for 99 years, and then
goes on to make the uſual ſettlement, and the drawer omitted to ſay for 99
years if he fhould ſo long live; the great queſtion there was, whether by
implication the words 'if he ſhould ſo long live' fhould be added. It was not
a neceſſary implication, it was not impoffible that he "meant a term of
99
years ; but there lord Hardwick, upon going through all the arguments and
the nature of the thing, was convinced, and every body elſe, equal to a de-.
monſtration, that the teſtator meant 99 years if he ſhould fo long live, and
not a term of 99 years; and ſo that caſe was adjudged. There is no doubt
the teſtator did mean that, and that is a very ſtrong fact; for, it is adding:
words the teftator had not made uſe of to the limitation which ſtood of itſelf..
And therefore the grand queſtion is, as has been truly ſtated, to find out from
all the will taken together, what was the teſtator's real intention ; and upon
the laſt argument, as I have taken a note of it, Mr. Serjeant Hill. ſet out by
faying, “ In this caſe there can be no doubt of the teftator's intention. The
" teftator's intention is moſt clear; but his intention cannot take effect, becauſe
« he has not done it according to law, he has limited it upon a contingency
“ which makes it void in point of law.” When the teſtator's intention is ad-
mitted to be clear, it goes a great way in the determination of the queſtion ;
eſpecially, when the counſel that argue on the other ſide are forced to admit
that it is clear; and Mr. Mansfield to-day has made no doubt whatever as to
the
.
WILLIAM EARL OF MANSFIELD.
355
the intention, and indeed it is impoffible to make a doubt on that head. Sir
William Morgan, a gentleman of a Welclı family, an ancient family I be-
lieve, having a great family-eſtate, having wherewithal to provide moſt am-
ply for a daughter, has a mind the family-eſtate ſhall go on in the family as
long as it can in the male line. Why then, having the eſtate ſettled upon the
iſſue male of his preſent family, he makes a proviſion for the reverſion in
fee. What was his meaning? It was this—if there was a failure of iſſue
male of his own body, it ſhould go to his brother : that is clear, if he meant
that his brother Thould take by way of executory deviſe, and that he ſhould
prevent the deviſe from being barred during that time. Why then his in-
tention is contrary to law, and ſhall not take effect; but if he clearly meant
this, " that my iflue male ſhall take ſucceſſively,' and when there is a failure
of
my
iſſue male, if it goes to the children of a ſubſequent marriage, or if,
not thinking of a ſubſequent marriage, he meant to ſay, in caſe Lady Rachel
ſurvives me, and, in caſe there is no iſſue male of my marriage, I give it to
my
brother, in either of theſe caſes it is an intent that according to law mult
be effectuated; and, if it can, the court ought to do it; now, no man can doubt
but that was his intent, that his eſtate ſhould go to his own iſſue male, and,
failing in that, ſhould go to his brother; there is no perſon who reads the
will but muſt be clear that was his intent; and it is as clear that neither he
nor the drawer of the will ever thought of an executory deviſe, Then how
may this be effectuated ? I think it may, very clearly, by the conſtruction
of the teſtator's intent, one or two ways; and it is quite indifferent, as the
event has happened, which way it is conſtrued; the arguments to both
conclude for each of them: from the intention it cannot be otherwiſe; for, if
the teſtator has ſaid, whereas my eſtate is ſettled upon my firſt and every
other ſon in tail male by my marriage-ſettlemnent, therefore in caſe they all
die without heirs male of their body I give it to my brother ; if he had ſaid
ſo in expreſs words, which would have given the reverſion in fee, and if he
had lived years after the death of his wife, had married another wife, and
liad had ſons of that marriage, and had not made any ſettlement, and had
not revoked the will, notwithſtanding he had ſaid it fo expreſly, the intent
being ſo plain that his brother was only to take upon failure of his own iſſue
male, that if he had not had that contingency in view, Mr. Dunning has
faid truly, that ſuch ſecond marriage &c. as above ſtated would have been a
s tevocation of his will; and that point is now ſettled with regard to real eſtates,
as it had been before of perſonal eſtates. It was ſettled by three of the judges
2 2 2
and
:
336
THE LIFE OF
?
and afterwards confirmed by that caſe Mr. Dunning alludes to; and very
rightly deterinined; for, it is impoſſible that a batchelor having made a will
and having no family, but afterwards marrying and having children of that
marriage, though by negligence or forgetfulneſs, or ſome accident or other,
he had not cancelled that will, that he meant that will hould ſtand upon a
ſuppoſition of having no children and no family; the very preſumption would
have been that the deviſe over to his brother was not intended, if he had
had iſſue by a ſecond marriage. The ſecond way by which the intention of
the teſtator may be effectuated here is, that which I very believe in my own
mind was the true caſe, that neither fir William, nor any body concerned
for him, at that time had an idea of making the leaſt proviſion for, or having
the leaſt view to the contingency of, a ſecond marriage. The whole will,
goes upon the ſuppoſition of the children of that marriage ſurviving him,
made in his fickneſs, made but three weeks before his death. Every part
thews that there is a proviſion in it, that his ſon Edward ſhall have the bene-
fit of his marriage-ſettlemnent; there is a proviſion in it appointing his wife,
Lady Rachel, one of the guardians of his children, and one of the executors:
he made a full diſpoſition of all the eſtate that he was ſeiſed in fee of. Then
what was immediately his object ?-Why, his ſettlement. For, there
is a diſtinction between the two ſorts of his eſtate, a plain diſtinction taken
up by him, having diſpoſed of all the eſtate he was ſeiſed in fee of; then as
to the other he comes by way of recital ; he does not diſpoſe of that imme-
diately, but ſays, my mind is, that if my ſon or fons now living, or any
after-ſons, Thall happen to die without iſſue male, that it is my intent; in caſe
the ſucceſſion opens, in caſe the event ſhall happen in which the eſtate is to
be enjoyed by another, what is the caſe ?-Why in caſe iſſue male of the .
marriage fail, for if that ſhould continue he had nothing but a reverſion in
fee, any after-born ſon (he has not ſaid of Lady Rachel, but that was plainly
his intention) fhould take. All the arguments on this part of the caſe will
eaſily go to the ſecond light in which it is to be conſidered; to effectuate
his intention. What is he to give in cafe that event ſhall happen ?-
Not the lands, for, ſays he, I have nothing but the remainder in fee; 1
give the remainder in: fee; that is very remarkable, for. tħe remainder is,
to denote the quality of the eſtate he is to give, ſince he has all the
conveyancers, words, to give the lands, meſſuages, manors, , royalties, ada.
vowſons, parks, i &. ; then he follows them with the words' reverſion and :
beyerfions, remainder and remainders; but he recites it with his intent
5.
applied:
:!
Content
--
A
WILLIAM EARL OF MANSFIELD.
357
applied to the limitations in being ; my intent is, that, in caſe my iſſue inale
fail, the remainder Thall go another way: what remainder ?-the remainder
after the eſtate tail. So it is very ſtrong and clear to conviction that he
really meant to make a deviſe only, provided he died without any ſubſequent
marriage ; and that the only limitations that could take effect before this re-
mainder was to operate, were the limitations created by the marriage-ſet-“
tlement, but not to reſt upon that, as the words are, to be ſure, after-born
ſons, without ſaying by lady Rachel or upon her body begotten; let us fup-
poſe that he meant after-born by any other marriage ; and, in caſe the point
of revocation had been doubtful, and Sir William had married a ſecond
wife, left a fon by that fécond wife ;: and a queſtion had ariſen between
the brother and the ſon, whether that ſon was diſinherited or not, by that
deviſe. In caſe there was a doubt on the point of revocation; to be ſure the
court, from the intention of the teſtator, would have leaned very ftröngly to
effectuate his real intention, which certainly was not to difinherit
any
iffue
of his own body-why then ſuppoſe it to have that extenſive meaning, what.
would be the conſequence to give it effect? why that every ſon to be born:
of a ſubſequent marriage is, by the neceffary declaration of the teſtator, to
have an eſtate-tail; and, it is not neceſſary for a teftator to give his own fon
and heir an eſtate; it is fufficient that his intent appears to reſtrain froin what
would be made void by the operation of law. Suppoſé he ſaid, I charge my
eſtate with ſo much'; if he had ſaid after the death of my fon I give it over,
that would have reſtrained it to an eſtate-tail --Now the preamble is very
ſtrong to this effect'; for, it is juſt as declarative, and as operative of his in-
tent, as if there had been binding words. My intent and meaning is that in:
caſe my two föns now living, or any other ſon or fons of mine lawfully be-
gottenz :and according to this conſtruction of his' will by giving the words
their utmoft extent of this, or any other marriage, hereafter to be born, ſhall
die without iffue male of their bodies, it neceſſarily follows that they and the
iſſue male of their bodies are to-take-in what way are they to take ? why the .
example is: put by the two ſons that are' alive, and as they muſt take an eſtate
tail ſucceſſively; fo any after-born ſon: muſt take an eſtate-tail ſucceſſively
why then, if any after born ſon of a ſubfequent marriage is to be conſtrued :
that way, he muſt take an eſtate-tail-To my two ſons now born, and any
after-born ſon of this or any other marriage ; and upon this part of the cafe the
Powers of jointuring, leaſing, and portions, are exceſſively material; if-it
I
was
1
35:8
THE LIFE OF
was clear that they muſt relate to the ſettled eſtate, which is not ſo certain,
becauſe they may have an effect by relating to the other eſtates; but as far
as they warrant the argument they relate to both, and I do think the-
power of leaſing muſt neceſſarily relate to both. The argument from that is,
theſe powers are deciſive; for, there is a power given to the after-born ſon to
make a jointure, grant portions, and make leaſes ; why, it is deciſively tied
up with the uſual words, when they ſhall ſucceſſively be in poffeffion. If
he had ſaid, I mean them all to take eſtates tail one after another, he could
not have ſaid it more ſtrongly; for, this ſhews they were to take eſtates-tail,
and ſuch eſtates as in the nature of them enabled them to make jointures,
grant portions, and make leaſes: they have not ſuch eſtates; for,;a tenant in
tail, without ſuffering a common recovery, cannot make jointures, grant
portions, and make leaſes. They have not; and therefore that clauſe, fo far
as it applies, is as deciſive, and as expreſſive, as if he had ſaid, I deviſe to
ſuch after-born ſon an eſtate ſucceſſively in ſtrict ſettlement. "What is
deſired of the court? Will they labour to ſuppoſe Sir William to have had
a meaning, which it is certain he never had ? And no idea to introduce that
meaning, in order to defeat his whole intention which both ſides agree to be
ſo clear as to be indiſputable; that certainly ought not to be done.-There-
fore we ſhall make.our certificate according to the ideas I have already ex-
preſſed to have: in caſe we ſhould alter our opinions, we ſhall ſignify if we
deſire a future argument."
The Certificate. .“ Having heard counſel on both ſides, and conſidered the
caſe, we are of opinion, that the event of a ſecond marriage was not in the
tęſtator's contemplation; but ſuppoſing that, from the generality of the de-
ſcription of the words, any after-born fon' ſhould be extended to the fon
of any future marriage, we are of opinion, that from the manifeſt intention
of the teſtator expreſſly declared in his will, ſuch fon muſt take an eſtate-tail;
conſequently we are of opinion, that, either way, a remainder after that eſtate
is deviſed to Thomas the teſtator's brother, who, by virtue of the ſaid limi-
tation, upon the failure of the ſons of Sir William the teftator, without iſſue
male, was entitled to all the lands in the counties of Monmouth and Glamor-
gan (deviſed by the reſiduary clauſe in the ſaid will), for life, with remain-
ders according to the limitations in the ſaid will.
MANSFIELD.
R. ASTON
W. H. ASHHURST,
7th May, 1773.
Lord
WILLIAM EARL OF MANSFIELD.
359
Lord Chancellor Apſley decreed *, That the above certificate
ſhould be confirmed ; from which Mrs. Jones, who was the
daughter and heireſs at law of Sir William Morgan, appealed
to the Houſe of Lords, who put the following queſtion to the
Judges:
- Whether Thomas Morgan the brother of the teſtator, and Thomas
Morgan the younger, and Charles Morgan, or any or either of them, took
any
and what eſtate-tail in the lands in the counties of Monmouth and Gla-
morgan, by the reſiduary clauſe in the will?”
The lord chief juſtice (De Grey) of the Common Plcas delivered
the unanimous opinion of the judges preſentt.
66 That Thomas Morgan the brother took an eſtate for life in the eſtates-
in Monmouthſhire and Glamorganſhire, with remainder to Thonias Morgan-
the younger and Charles Morgan.”
1774
Hillary Term.
In the memorable caſe of Lee againſt General Ganſel it was fo-
lemnly determined that a bailiff, in execution of meſne proceſs,
may
:
the door of a lodger, having firſt gained peacea-
ble entrance at the outer door of the houſe.
break open
Lord Mansfield thus declared the opinion of the court :
“ This is an application on the part of general Ganfel to be diſcharged out
of cuſtody on the following ground : That the procefs iſſued againſt him by
this court has been abuſed, and his perſon illegally arreſted ;. for that the
officer broke open the door of his apartment, which by law he could not do ;
therefore the court ought to diſcharge him, and put him in the ſame condi-
tion as before the arreſt.
* July 23, 1773
May.2, 17.74.
66 To
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i
“To this charge three defences are ſet up on the part of the plaintiff in
the action and the officer complained againſt. The firſt is, that in fact the
door was not broke open, but was previouſly open; and the officer having
got part of his body, that is to ſay, his thigh in, after a ſtruggle to get in
the reſt, in which he prevailed, arreſted the defendant. The ſecond, which
goes to a denial of the whole ground of the application, is this, “That the
door, which was broken open, the officer had a right to break open, due no-
tice having been announced, and a refuſal given.' The third is, that, fup-
poſing Mr. Ganſel founded in his application as to the mode of the arreſt
being illegal, yet his remedy is by treſpaſs for breaking open the door, or
by the more ſummary mode of attachment againſt the officer ; nevertheleſs
the ſuppoſed treſpaſs upon his perſon is legal, for that the officer had a right
to arreſt hiin.
" Theſe are the three defences; and, as to the firſt, there is ſo great a con-
trariety of evidence, that there muſt be falſe fwearing. I doubt therefore
where the truth lies: and, fuppofing the fact contended for on the part of
the plaintiff in the action to be true, I doubt as to the conſequence: that
is, if an actual breaking open the door were illegal, I doubt as to the law,
where a door being partly open is ſhut by the perſon who is within, againſt
the officer who is ſtruggling to get entrance. I doubt both as to the fact
and the conſequence; and therefore lay that entirely out of the caſe.
“The ſecond ground of defence, and which makes the next queſtion in
this caſe is, “Whether this door might be lawfully broken open in execution
of meſne proceſs?' And, as to that, the caſe is this : Mr. Mayo was owner of
this houſe, in which general Ganſel had, at the time in queſtion, and for a
long time before, taken the firſt floor, which conſiſted of two rooms, each
of which had a door which opened upon the ſtaircaſe ; he had likewiſe, up
two pair of ſtairs, two rooms, each of which had a door that opened in
the ſame manner: he had the uſe of the kitchen befides, and he rented
theſe ſeveral apartments, as a lodger, from year to year, though that circum-
ſtance makes no difference. Mr. Mayo lived in the houſe ; and, which is
the material part of the caſe, there is but one outer door to the houſę; at
which Mr. Mayo enters to go to his apartment, and Mr. Ganſel to go to
his. This is a fact concerning which there is no controverſy. Mr. Ganfel
was up two pair of ſtairs in his bedchamber, and, as he ſays, the door was
locked ; and, after notice, the officers broke it open ; though nothing turns
upon the notice or mode of breaking. The queſtion is, “Whether by law
this door could be broken open ?'
.66 I ſhould
!
WILLIAM 361
'
EARL OF MANSFILLD.
" I ſhould firſt ſtate, however, that the outer door of the houſe was open,
and that the officers entered there legally. The queſtion therefore turns
upon the ſubſequent breaking open of the bed-chamber door.
- The books talk of the privilege of a manſion-houſe, and of the privilege of
the door of it, which cannot be broken open. The whole queſtion will
therefore turn upon the extent of that which is called privilege. Now this
rule of privilege, ariſing from a found maxim of policy, is no privilege of a
debtor, properly ſpeaking, who abſconds from juſtice in avoidance of legal
proceſs; but is annexed to the houſe and door (to which door I forbear at
preſent to give any particular epithet) for the protection of a man and his fa-
mily. It is therefore by conſequence only, that the privilege is a protec-
tion to ſuch a perſon, and not for his own ſake. The found maxim of po-
licy is this, that a greater evil ſhould be avoided for a leſs, and a lefs good
Jhould give way to a greater. The outer door therefore, or window of a man's
houſe, ſays the law, ſhall not be broken open by proceſs. This has been long
and well underſtood. The ground of it is this, that otherwiſe the conſe-
quences would be fatal; for it would leave the family within naked and ex-
poſed to thieves and robbers. It is much better, therefore, ſays the law,
that
you ſhould wait for another opportunity, than do an act of violence,
which may probably be attended with ſuch dangerous conſequences. But
as this is a maxim of law in reſpect of political juſtice, and makes no part of
the privilege of a debtor himſelf, it is to be taken Arielly, and not to be ex-
tended by any equitable analogous interpretation.
- The oldeſt caſe to be found in the books, that takes notice of this privi-
lege and warrants it, and upon which authority it was allowed at all, is a
caſe in the Year-book, 18 Edw. IV. page 4. pl. 19. There an action of
treſpaſs was brought for breaking the outer door in execution of a fieri facias.
The court held, that treſpaſs would lie, for the officer ſhall not break open
an outer door to execute his proceſs : but when the officer had ſo got in, he
broke open a trunk, and took out the goods that were in it; in reſpect of
which they héld, that treſpaſs would not lie ; for he had a right to break the
trunk, and take the goods. I quote this caſe, not to imply that I ſhould
perhaps have been of the fame opinion myſelf in a caſe of the firſt im-
preffion; but to Thew, that the rule of privilege is taken moft rigidly. Af- .
terwards, in Semaine's cafe, 5 Co. Mich. 2d Jac. Page 93. the ſame ſtrict
doctrine was held, namely, that breaking open the outer door was a treſ-
paſs,
Ааа
1
362
THE LIFE OF
paſs, but taking away the goods was lawful.' · In Yelverton, Mich. 44. El.
29. which was the ſame cafe, Popham doubted whether even the outer door
was privileged, becauſe it would be a hindrance to juſtice : But afterwards,
in Mich. 2 Jac. 5 Go. 92, b. 931 a. the whole court held, that the outer door
ought not to be broken open ;'
? and grounded their opinion upon the ſingle
authority of 18 Edw. IV. p. 4. pl. 19. before quoted. You ſee from hence
with what rigour the privilege has been conſtrued in the oldeſt cafes.
" But no caſe or dictum has been cited at the bar, nor indeed did there ever
exiſt a caſe, which intimated a doubt whether an inner door might not be
broken open. In lord Hob. 62. and 263. among other outrageous things the
bailiffs broke open a chamber door, having entered legally at the outer door ;
but ſuch breaking was held lawful, the firſt entrance at the outer door, which
was open, having been legal: and yet the latter was a very harſh caſe, for
they broke in when the man and his wife were in bed, and behaved with
great violence and outrage ; but I lay ſtreſs on this to Thew how frictly the
privilege had been underſtood, when the outer door or window is fecure, and
the entrance has not been forcible, through either of them, ſo as to lay open
the houſe and its inhabitants to inſult and violence from without; but, on
the contrary, has been quiet and peaceable. In addition to theſe authorities,
I recollect a note of a cafe lately determined, which ſays; an inner door has
no protection at all.” It was the caſe of Aſtley and Pindar, and was heard in
the year 1760, Mich. i Geo. III. There all the other charges againſt the bai-
liffs were anſwered, except breaking the inner door, which was accompanied
with ſuch violence, that the door fell, and the officer with it into the room;
but all the court were of opinion that the officers having lawfully entered at
the outer door, might break open the inner to execute the duty of their of-
fice. Beſides theſe caſes, and in conformity to the principles upon which
they have gone, I ſhall cite a very ſenſible and material diſtinction from a
book in my hands, which is Foſter C. L. title Homicide, c. 8. fect. 20.
which is this, “The rule that every man's houſe is his caſtle, when applied
to arreſts on legal proceſs, has been carried as far as political juſtice will war-
fànt, and perhaps farther than in the ſcale of reaſon and ſound policy they
will warrant. But in caſes of life we inuſt adhere to rules well known and
eſtabliſhed. But this rule is not one of thoſe that will admit of any extenſion.
It muſt therefore, as I have before hinted, be confined to the breach of win-
dows.
}
i
WILLIAM EARL OF MANSFIELD.
363
dows and of outer doors intended for the ſecurity of the houſe againſt perſons
from without, endeavouring to break in.'
“6. This brings the queſtion to this point, 'Whether this was the outer door
to the houſe of the defendant?' for the law, we have ſeen, does not privi-
lege an inner door.
“ It has been ſaid, that this lodging is a houſe, and has an outer door ;
and it has been likened to the caſe of chambers in tlie inns of court, and in
colleges which have each an outer door that opens, like the door in queſtion,
upon the common ſtaircaſe, and which, in caſes of burglary, hare been held
to be the houſes of the reſpective occupiers. The fact is, that, from the na-
ture of theſe buildings, they are all as ſeveral houſes, and have feparate outer
doors, which are the extremity of obſtruction, becauſe the ſtaircaſe is no
outer door : again, they are enjoyed as ſeparate property. In Lincoln's Inn
they have ſeparate eſtates of inheritance; in the others they have eſtates for
life, and in colleges as long as they reſide. So if that which was one houſe
originally, comes to be divided into ſeparate tenements, and there is a
diſtinct outer door to each, they will be ſeparate houſes, as Newcaſtle
Houſe.
“The diſtinction therefore can only be between ſeveral outer doors and
one outer door.
“How far lord Hale meant to carry his opinion in the paſſage that has
been cited, it is difficult to ſay.' Where a burglary is committed in tlie
apartments of one who lodges in a houſe, the circumſtance of the owner's
living in it, or his occupying only a ſhop or cellar in which he does not ſleep,
makes a very material difference as to the form of the indictment ; for, in
the latter caſe the lodger has the outer door entirely to himſelf; and the bur-
glary in ſuch caſe muſt be laid in the houſe of the lodger ; but it is other-
wiſe in the former caſe, for there it muſt be laid in the houſe of the owner.
And, notwithſtanding the greatneſs of lord Hale's authority, it appears not
clearly expreſſed, or perhaps not fully conſidered ; at all events, we muſt not
determine upon a ſingle and uncertain di&tum, againſt the many late and po-
fitive caſes, grounded on the oldeſt deciſions and moſt eſtabliſhed prin-
ciples.
“But, if there were nothing more to confute the doctrine which has ex-
hauſted ſo much learning and ingenuity in ſupport of it, the abſurdity of the
propofition would of itſelf be ſufficient. And it is this, that whereas the
A a a 2
greateſt
e
i
364
THE LIFE OF
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1
greateſt houſe in London has but one outer door ; this gentleman, having four
rooms in one houſe, ſhall have four diſtinct outer doors. If any of them could
be ſaid to be an outer door, it muſt be the door of the lower rooms; but the
truth is, they are all inner doors.
6. Therefore we are all moſt clearly of opinion, that by law this door was
legall yroken open.
“With regard to the point of relief, in cafe the arreſt had been illegal,
I give no opinion; though I think it would depend upon the behaviour of
the party applying. It is poſſible a perſon might come to ask that relief,
under circumſtances of ſuch groſs miſbehaviour as migħit induce the court to
refuſe it. Though the court, wliere a perſon is arreſted who has been at-
tending its proceſs, will interpoſe, not only by puniſhing the officer but
by diſcharging the priſoner out of cuſtody, yet caſes of this ſort are alm.
ways matters of difcretion with the court under their particular circum-
ſtances. But it is not neceſſary here to enter into that point; as we are all
clearly of opinion that general Ganſel. was. legally arreſted, and there.
føre ought not to be diſcharged.”
1
Rule diſcharged..
.
.
On the 8th of June, 1774, Mr. Juſtice Gould came per
ſonally into court, to acknowledge his ſeal affixed to a bill of ex-
ceptions in the caſe of. Moſtyn verſus Fabrigas ; and errors having:
been aſſigned thereupon, they were, on the 14th of November,
1774, argued in ſupport of treſpaſs and falfe impriſonment lying
in England by a native Minorquin, againſt a governor of Minorca,
for an injury committed by him in Minorca,
** This was an an action of treſpaſs brought in the court of Common: Pleas,
by Anthony Fabrigas, againſt John Moſtyn, for an aſſault and falſe impri-
fonmentz in which the plaintiff declared, that the defendant, on the firſt of :
September, in the year 1771, with force and arms, &c. made an aſſault
upon the faich. Anthony, ,at Minorca, to wit, at London aforeſaid, in the
pariſh of St. Mary le Bow, in the ward, of Cheap, and beat, wounded, and
ill-treated him, and then and there impriſoned him, and kept and detained !
him in priſon there for a long time, to wit, for the ſpace of ten months,
without
any reaſonable or probable cauſe, contrary to the laws and cuſtoms
of:
Si
::
WILLIAM EARL OF MANSFIELD.
365
1
:
of this realm, and againſt the will of the ſaid Anthony, and compelled him
to depart from Minorca aforeſaid, where he was then dwelling and reſident,
and carried, and cauſed to be carried, the ſaid Anthony from Minorca afore-
faid, to Carthagena in the dominions of the king of Spain, &c. to the plaina
tiff's damage of ten thouſand pounds.”
One of the learned counſel cloſed his argument" by wittily ob-
ſerving, “Should the judgement be reverſed, I fear the public,
with too much truth, will apply the lines of the Roman Satyriſt
on the drunken. Marius on the preſent occaſion, and they will
fay of Governor Moſkyn, as was formerly ſaid of." Marius,,
“ Hic eft damnatus inani judicio.""
And to the Minorquins, if Mr. Fábrigas ſhould be deprived of,
that ſatisfaction in damages which the jury gave him.
“ At tu. victrix: provincia:ploras.”
Lord Mansfield. “Let it ſtand for another argument. It has been ex: -
tremely well argued on both ſides, by Mr, Buller for the plaintiff and by
Mr. Peckham for the defendant."
On the 27th of January, 1775, it was again very ably argued
by Mr. Serjeant Glynn for the plaintiff, and by Mr. Serjeant.Wale-
ker for the defendant.
The facred character of a governor, the laws and cuſtoms re--
lating to commerce with foreign countries, and the ſolid diſtinc.-
tions laid down reſpecting locality, or the place where actions -
are properly brought-theſe topics are defined by lord Mansfield
with gſeat energy and perſpicuity in the following elaborate ſpeech::
Lord Månsfield: “ This is an action brouglít by the plaintiff againſt the
defendant for an aſſault and falfe impriſonment; and part of the complaint
made, being for baniſhing him from the iſland of Minorca to Carthágena in
Spain, it was neceſſary for the plaintiff, in: his declaration; to take notice.
of the real place where the cauſe of action arofe; therefore he has ſtated it:
to be in Minorca,. with a videlicet, at London, in the pariſh.of St. Mary le:
bowy:
366
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· bow, in the ward of Cheap. Had it not been for that particular requiſite,
he might have ſtated it to have been in the county of Middleſex. To this'
declaration the defendant put in two pleas, Firſt, not guilty ;' ſecondly,
that he was governor of Minorca by letters patent from the crown; that the
plaintiff was raiſing a ſedition and mutiny ; and that in confequence of ſuch
ſedition and mutiny, he did impriſon him, and ſend liim out of the iſland;
which as governor, being inveſted with all the privileges, rights, &c. of
governor, le alleges he had a right to do. To this plea the plaintiff does
not demur, nor does he deny that it would be a juſtification in caſe it were
true : but he denies the truth of the fact; and puts in iſſue whether the
fa&t of the plea is true. The plea avers that the aſſault for which the action
was brought aroſe in the iſland of Minorca, out of the realm of England,
and no where elſe. To this the plaintiff has made no new aſſignment, and
therefore by his replication he admits the locality of the cauſe of action.
“ Thus it ſtood on the pleadings. At the trial the plaintiff went into
the evidence of his caſe, and the defendant into evidence of his; but, on be-
half of the defendant, evidence different from the facts alleged in his plea
of juſtification was given, to fhew that the Arraval of St. Philip's, where the
injury complained of was done, was not within either of the four precincts,
but is a diſtrict of itſelf more immediately under the power of the governor ;
and that no judge of the iſland can exerciſe juriſdiction there, without a
ſpecial appointment from him.. Upon the facts of the caſe, the judge left it
to the jury, who found a verdict for the plaintiff, with three thouſand
pounds damages. The defendant has tendered a bill of exceptions, upon
which bill of exceptions the cauſe comes before us; and the great difficulty
I have had upon both the arguments, has been to be able clearly to compre-
hend what the queſtion is, which is meant ſeriouſly to be brought before
the court.
“ If I underſtand the counſel for governor Moſtyn right, what they ſay
is this. The plea of not guilty is totally immaterial ; and ſo is the plea of
juſtification ; becauſe upon the plaintiff's own ſhewing it appears, ift, that
the cauſe of action aroſe in Minorca, out of the realm ; 2dly, that the de-
fendant was governor of Minorca, and by virtue of ſuch his authority im-
priſoned the plaintiff. From thence it is argued, that the judge who tried
the cauſe ought to have refuſed any evidence whatſoever, and have directed
the jury to find for the defendant ; and three reaſons have been aſſigned.
One,
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WILLIAM EARL OF MANSFIELD
367
--
One, infifted upon in the former argument, was, that the plaintiff, being a
Minorquin, is incapacitated from bringing an action in the King's court in
England. To diſpoſe of that objection at once, I ſhall only ſay, it is wiſely
abandoned to-day ; for it is impoſſible there ever could exiſt a doubt, but
that a ſubject born in Minorca has as good a right to appeal to the King's
court of juſtice, as one who is born within the ſound of Bow-bell; and the
objection made in this caſe, of its not being ſtated on the record that the
plaintiff was born ſince the treaty of Utrecht, makes no difference. The
two other grounds are, Iſt, that the defendant being governor of Minorca, is
anſwerable for no injury whatſoever done by him in that capacity ; 2dly,
that the injury being done at Minorca, out of the realm, is not cognizable
by the King's courts in England. As to the firſt, nothing is ſo clear as
that to an action of this kind the defendant, if he has any juſtification,
muſt plead it; and there is nothing more clear, than that if the court has
not a general juriſdiction of the ſubject-matter, he muſt plead to the jurif
diłtion, and cannot take advantage of it upon the general iſſue. Therefore, by
the law of England, if an action be brought againſt a judge of record for
an act done by him in his judicial capacity, he may plead that he did it as
judge of record, and that will be a complete juſtification. So in this caſe,
if the injury complained of had been done by the defendant as a judge,
though it aroſe in a foreign country where the technical diſtinction of a
court of record does not exiſt, yet fitting as a judge in a court of juſtice,
ſubject to a ſuperior review, he would be within the reaſon of the rule which
the law of England ſays ſhall be a juſtification ; but then it muſt be
pleaded. Here no ſuch matter is pleaded, nor is it even in evidence that he
fat as judge of a court of juſtice. Therefore I lay out of the caſe every
thing relative to the Arraval of St. Philip's.
“ The firſt point then upon this ground is, the ſuicredneſs of the defend-
ant's perſon as governor. If it were true that the law makes him that facred
character, he muſt plead it, and ſet forth his commiſſion as fpecial matter
of juſtification ; becauſe prind facie the court has jurifdiction ; but I will
not reſt the anſwer upon that only. It has been inſiſted by way of diſtinc-
țion, that ſuppoſing an action will lie for an injury of this kind committed
by one individual againſt another, in a country beyond the ſeas, but withili
the dominion of the crown of England, yet it ſhall not emphatically lie againſt
the governor. In anſwer to which I ſay, that for many reaſons, if it did
not
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not lie againſt any other man, it ſhall moſt emphatically lie againſt the go-
vernor
.
" In every.plea to the juriſdiction, you muſt ſtate another juriſdiction;
therefore, if an action is brought here for a matter ariſing in Wales, to bar
the remedy fought in this court, you muſt ſhew the juriſdiction of the court
of Wales; and in every cafe to repel the juriſdiction of the King's court,
you muſt ſhew a more proper and more ſufficient juriſdiction; for if there is
no other mode of trial, that alone will give the King's courts a juriſdiction.
Now in this caſe no other juriſdiction is ſhewn, even ſo much as in argu-
ment. And if the King's courts of juſtice cannot hold plea in ſuch caſe, no
other court can do it. For it is truly ſaid that a governor is in the nature of
a viceroy ; and therefore locally, during his government, no civil or criminal
action will lie againſt him; the reaſon is, becauſe upon proceſs he would be
ſubject to impriſonment. But here the injury is ſaid to have happened in
the Arraval of St. Philip's, where, without his leave, no juriſdiction can
exiſt. If that be ſo, there can be no remedy whatſoever, if it is not in the
King's.courts ; becauſe when he is out of the government, and is returned
with his property into this country, there are not even his effects left in the
iſland to be attached.
“ Another very ſtrong reaſon, which was alluded to by Mr. Serjeant
Glynn, would alone be deciſive ; and it is this: that though the charge
brought againſt him is for a civil injury, yet it is likewiſe of a criminal na-
ture ; becauſe it is in abuſe of the authority delegated to him by the King's
Letters Patent, under the great ſeal. Now if every thing committed within
a. dominion is triable by the courts within that dominion, yet the effect or
extent of the King's Letters Patent, which gave the authority, can only be
tried in the King's courts ; for no queſtion concerning the Seignory, can
be tried within the Seignory itſelf. Therefore, where a queſtion reſpecting
the Seignory ariſes in the proprietary governments, or between two provinces
of America, or in the Iſle of Man, it is cognizable by the King's courts in
England only. In the caſe of the Iſle of Man *, it was ſo decided in the
time of queen of Elizabeth, by the chief juſtice and many of the judges.
So that emphatically the governor muſt be tried in England, to ſee whether
he has excerciſed the authority delegated to him by the Letters Patent, le-
.
:
4. Inſt. 284.
gally
WILLIAM EARL OF MANSFIELD.
369
gally and properly ; or whether he has abuſed it, in violation of the laws of
England, and the truſt ſo repoſed in him.
" It does not follow from hence, that, let the cauſe of action ariſe where
it may, a man is not entitled to make uſe of every juſtification his caſe will
admit of, which ought to be a defence to him. If he has acted right ac-
cording to the authority with which he is inveſted, he muſt lay it before the
court by way of plea, and the court will exerciſe their judgement whether
it is a ſufficient juſtification or not. In this caſe, if the juſtification had
been proved, the court might have conſidered it as a ſufficient anſwer ; and,
if the nature of the caſe would have allowed of it, might have adjudged,
that the raiſing a mutiny was a good ground for ſuch a ſummary proceeding.
I can conceive caſes in time of war in which a governor would be juſtified,
though he acted very arbitrarily, in which he could not be juſtified in time
of peace. Suppoſe, during a ſiege or upon an invaſion of Minorca, the go-
vernor ſhould judge it proper to ſend an hundred of the inhabitants out of
the iſland, from motives of real and general expediency; or ſuppoſe, upon a
general ſuſpicion, he ſhould take people up as (pies ; upon proper circum-
ſtances laid before the court, it would be very fit to fee whether he had
acted as the governor of a garriſon ought, according to the circumſtances of
the caſe. But it is objected, ſuppoſing the defendant to have acted as the
Spaniſh governor was empowered to do before, how is it to be known here
that by the laws and conſtitution of Spain he was authorized ſo to act ?
The way of knowing foreign laws is, by admitting them to be proved as
facts, and the court muſt aſſiſt the jury in aſcertaining what the law is.
For inſtance, if there is a French ſettlement, the conſtruction of which de-
pends upon the cuſtom of Paris, witneſſes muſt be received to explain what
the cuſtom is; as evidence is received of cuſtoms in reſpect of trade. There
is a caſe of the kind I have juft ſtated *. So in the fupreine reſort before
the King in-Council, the Privy Council determines all caſes that ariſe in the
plantations, in Gibraltar, or Minorca, in Jerſey, or Guernſey; and they
inform themſelves, by having the law ftated to them.
the law ftated to them. As to ſuggeſtions
with regard to the difficulty. of bringing witneſſes, the court muſt take care
that the defendant is not ſurprized, and that he has a fair opportunity of
* Faubert. v. Truſt, Prec. Chan, 207.
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bringing
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!
bringing his evidence, if it is a caſe proper in other reſpects for the jurif-.
diction of the court. There may be ſome caſes ariſing abroad, which may
pot be fit to be tried here ; but that cannot be the caſe of a governor; inju-,
ring a man contrary to the duty of his office, and in violation of the truft:
repoſed in him by the King's commiſſion.
" If he wants the teſtimony of witneſſes whom he cannot compel to at-
tend, the court may do what the court did in the caſe of a criminal profe--
cution of a woman who had received a penſion as an officer's widow: and
it was charged in the indictment, that ſhe never was married to him. She
alledged a marriage in Scotland; but that ſhe could not compel her witneſſes:
to come up, to give evidence. The court obliged the proſecutor to conſent
that the witneſſes might be examined before any of the judges of the court
of ſeſſion, or any of the barons of the court of Exchequer in Scotland, and
that the depoſitions ſo taken fhould be read at the trial. And they declared,,
that they would have put off the trial of the indictment from time to time,
for ever, unleſs the proſecutor bad lo conſented. The witneſſes. were. fo:
examined before the Lord Prefident of the court of Seffion..
" It is a matter of courſe, in aid of a trial at law, to apply to a court of
Equity, for a commiſſion and injunction in the mean time ; and where ai
real ground is laid, the court will take care that juſtice is done to the de-
fendant as well as to the plaintiff. Therefore, in every-light in which I ſee
the ſubject, I am of opinion that the action holds emphatically againſt the
governor, if it did not hold in the cafe of any other perſon. If ſo, he is ac-
countable in this court, or he is accountable no where ; for the king imr
council has no juriſdiction.. Complaints made to the king in council tend:
to remove the governor, or to take from him any commiſſion, which he
holds during the pleaſure of the crown. But, if he is in England, and holds,
nothing at the pleaſure of the crown, they have no juriſdiction to make re--
paration, by giving damages, or to puniſh him in any ſhape for the injury
committed. Therefore, to lay down in an Engliſh.court of juſtice ſuch-a.
monſtrous propofition, as that a governor acting by virtue of letters patent
under the great feal, is accountable only to:God, and his own conſcience;
that he is abſolutely deſpotic, and can ſpoil, plunder; and affect his majeſty's.
ſubjects, both in their liberty and property, with impunity, is a doctrine.
that cannot be maintained
66 In
1.
WILLIAM EARL OF MANSFIELD.
371
:
1
1
66 In lord Bellamont's caſe, 2 Sálk. 625. cited by Mr. Peckham, a motion
was made for a trial at bar, and granted, becauſe the attorney-general was
to defend it on the part of the king; which ſhews plainly that ſuch an action
exiſted. And in Way verſus Yally, 6 Mod. 195. Juſtice Powell ſays, that
an action of falſe impriſonment has been brought here againſt a governor of
Jamaica, for an impriſonment there ; and the laws of the country were
given in evidence. The governor of Jainaica in that caſe never thought
that he was not amenable. He defended himſelf, and poſſibly ſhewed, bý
the laws of the country, an act of the aſſembly which juſtified that impri-
fonment; and the court received it as they ought to do. For whatever is a
juſtification in the place where the thing is done, ouglit to be a juſtification
where the caſe is tried. I remember, early in my time, being counſel in an
action brought by a carpenter in the train of artillery, againſt governor Sa-
bine, who was governor of Gibraltar, and who had barely confirmed the
ſentence of a court-martial, by which the plaintiff had been tried, and ſen-
tenced to be whipped. The governor was very ably defended, but nobody
ever thought that the action would not lie ; and it being proved at the trial,
that the tradeſmen who followed the train, were not liable to martial law;
the court were of that opinion, and the jury accordingly found the defend-
ant guilty of the treſpaſs, as having had a ſhare in the ſentence ; and gave
five hundred pounds damages.
“ The next objection which has been made, is a general objection, with
regard to the matter ariſing abroad ; namely, that as the cauſe of action
aroſe abroad, it cannot be tried here in England.
" There is a formal and a ſubſtantial diſtinction as to the locality of trials. I
ftate them as different things; the ſubſtantial diſtinction is, where the pro-
ceeding is in rem, and where the effect of the judgement cannot be had, if
it is laid in a wrong place. That is the caſe of all ejectments, where pof-
ſeſſion is to be delivered by the Sheriff of the county; and as trials in England
are in particular counties, the officers are county officers; therefore the
judgement could not have effect, if the action was not laid in the proper
county.
“ With regard to matters that ariſe out of the realm, there is a ſubſtantial
diſtinction of locality too; for there are ſome caſes that arife out of the
realm, which ought not to be tried any where but in the country where they
ariſe, as in the caſe alluded to by ſerjeant Walker : if two perſons fight in
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France,
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France, and both happening caſually to be here, one ſhould bring an action
of aſſault againſt the other, it might be a doubt whether ſuch an action
could be maintained here; becauſe, though it is not a criminal proſecution,
it muſt be laid to be againſt the peace of the king; but the breach of the
peace is merely local, though the treſpaſs againſt the perſon is tranſitory.
Therefore, without giving any opinion, it might perhaps be triable only
where both parties at the time were ſubjects. So if an action were brought
relative to an eſtate in a foreign country, where the queſtion was a matter of
title only, and not of damages, there might be, a ſolid diſtinction of
locality.
" But there is likewiſe a formal diſtinction, which ariſes from the mode
of trial ; for trials in England being by jury, and the kingdom being di-
vided into counties, and each county conſidered as a ſeparate diſtrict or
principality, it is abſolutely neceſſary that there ſhould be ſome county
where the action is brought in particular, that there may be a proceſs to the
fheriff of that county, to bring a jury from thence to try it. This matter of
form goes to all caſes that ariſe abroad; but the law makes a diſtinction be-
tween tranſtory actions and local actions. If the matter which is the cauſe
of a tranſitory action ariſes-within the realm, it may be laid in any county,
the place is not material ; and if an impriſonment in Middleſex it may be
laid in Surry, and though proved to be done in Middleſex, the place not
being material, it does not at all. prevent the plaintiff recovering damages.
The place of tranſitory actions is never material, except where by particular
acts of parliament it is made fo; as in the caſe of churchwardens and con
ftables, and other caſes which require the action to be brought in the county.
The parties, upon ſufficient ground, have an opportunity of applying to the
court in time to change the venue ; but, if they go to trial without it, that is
no objection. So all actions of a tranfitory nature that ariſe abroad may be
laid as happening in an Engliſh county. But there are occaſions which
make it abſolutely neceſſary to ſtate in the declaration, that the cauſe of
action really happened abroad; as in the caſe of ſpecialties, where the date
muſt be ſet forth. If the declaration ſtates a ſpecialty to have been made at
Weſtminſter in Middleſex, and upon producing the deed, it bears date at
Bengal, the action is gone ; becauſe it is ſuch a variance between the deed
and the declaration as makes it appear to be a different inſtrument. There
Ég fome confuſion in the books upon the ſtat. 6 Ric. II. But I do not put
the
2
med
WILLIAM EARL OF MANSFIELD.
373
the objection upon that ſtatute. I reſt it ſingly upon this ground. If the
true date or deſcription of the bond is not ſtated, it is a variance. But the
law has in that caſe invented a fiction ; and has ſaid, the party ſhall firſt ſet
out the deſcription truly, and then give a venue only for form, and for the
fake of trial, by a videlicet, in the county of Middleſex, or any other
county. But no judge ever thought that when the declaration ſaid in Fort
St. George, viz. in Cheapfide, that the plaintiff meant it was in Cheapfide.
It is a fiction of..form ; every country has its forms, which are invented for
the furtherance of juſtice.; and it is a certain rule, that a fiction of law ſhall
never be contradicted ſo as to defeat the end for which it was invented, but
for
every other purpoſe it may be contradicted. Now the fiction invented
in theſe caſes is barely for the mode of trial; to every other purpoſe there-
fore it ſhall be contradicted, but not for the purpoſe of ſaying the cauſe
ſhall not be tried. So in the caſe that was long agitated and finally deter-
mined ſome years ago, upon a fiction of the teſte of writs taken out in the
vacation, which bear date as of the laſt day of the term, it was held, that
the fiction ſhall not be contradicted ſo as to invalidate the writ, by 'averring
that it iſſued on a day in the vacation * : becauſe the fiction was invented
for the furtherance of juſtice, and to make the wiit appear right in form.
But where the true time of ſuing out a latitat is material, as' on a plea of non
affumfit infra ſex annos, there it may be ſhewn that the latitat was ſued out
after the ſix years notwithſtanding the teſte. · I am ſorry to obſerve, that
ſome ſayings have been alluded to, inaccurately taken down, and impro-
perly printed, where the court has been made to ſay, that as men they have
one way of thinking, and as judges they have another, which is an 'abſur-
dity; whereas in fact they only meant to ſupport the fiction. . I will men-
tion a caſe or two, to fhew that this is the meaning of it.
« In 6.Mod. 228. the caſe of Roberts verſus Harnage is thus ſtated : The
plaintiff declared that the defendant became bound to him at Fort St. David's :
in the Eaſt Indies at London, in ſuch a bond; upon demurrer, the objection
was, that the bond appeared to have been ſealed and delivered at Fort St. Da-
vid's, in the Eaſt Indies, and therefore the date made it local ; and, by conſe:
quence, the declaration ought to have been of a bond made at Fort St. David's,
.
·
* -2 Burr. 9.6.7..
in
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>
in the Eaſt Indies ; viz. at Iſlington, in the county of Middleſex; or in
ſuch a ward or pariſh in London, and of that opinion was the whole court.
This is an inaccurate frate of the caſe. But in 2 Lord Raym. 1042. it is
more truly reported, and ſtated as follows: it appeared by the declaration,
that the bond was made at London, in the wärd of Cheap; upon oyer, the
bond was ſet out, and it appeared upon the face of it to be dated at Fort St.
George in the Eaſt Indies: the defendant pleaded the variance in abate-
inent; and the plaintiff demurred, and it was held bad: but the court ſaid
that it would have been good, if laid at Fort St. George, in the Eaſt Indies,
to wit, at London, in the ward of Cheap. The objection there was, that
they liad laid it falſely; for they had laid the bond as inade at London ;
whereas, when the bond was produced, it appeared to be made at another
place, which was a variance. A caſe was quoted from Latch, and a caſe
from Lutwyche, on the former argument; but I will mention a caſe poſte-
rior in point of time, where both thoſe caſes were cited, and no regard at
all paid to them; and that is the caſe of Parker and Crook, 10 Mod. 255.
It was an action of covenant upon a deed indented; it was objected to the
declaration, that the defendant is ſaid in the declaration to continue at Fort
St. George, in the Eaſt Indies; and upon the oyer of the deed it bore date at
Fort St. George ; and therefore the court, as was pretended, had no jurif-
diction : Latch. fol. 4. Lutwyche, 950. Lord Chief Juſtice Parker faid,
that an action will lie in England upon a deed dated in foreign parts; or elſe
the party can have no remedy; but then in the declaration a place in Eng-
land muſt be alleged pro forma. Generally ſpeaking, the deed, upon the
oyer of it, muſt be conſiſtent with the declaration ; but in theſe caſes,
propter neceffitatem, if the inconſiſtency be as little as poſſible, it is not to be
regarded; and here the contract being of a voyage which was to be per-
formed from Fort St. George to Great Britain, does import, that Fort St.
George is different from Great Britain : and after taking time to conſider of
it in Hilary term, the plaintiff had his judgement, notwithſtanding the ob-
jection. Therefore the whole amounts to this, that where the action is ſub-
ftantially. ſuch a one as the court can hold plea of, as the mode of trial is by
jury, and as the jury muſt be called together by-proceſs directed to the The-
riff of the county; matter of form is added to the fiction, to ſay it is in that
-county, and then the whole of the enquiry is, whether it is an action that
ought to be maintained. But can it be doubted, that actions may be main-
..tained
WILLIAM EARL OF MANSFIELD.
375
tained here, not only upon contracts, which follow the perſons, but for in-
juries done by ſubject to ſubject ; eſpecially for injuries where the whole that
is prayed' is a reparation in damages, or ſatisfaction to be made by proceſs
againſt the perfon or his effects, within the juriſdiction of the court ? We
know it is within every day's experience. I was embarraſſed a great while to
find out whether the counſel for the plaintiff really meant to make a queſtion:
of it. In fea batteries, the plaintiff often lays the injury to have been done in
Middleſex, and then proves it to be done a thouſand leagues diſtant on the
other ſide the Atlantic. There are caſes of offences on the high ſeas, where
is of neceſſity to lay in the declaration, that it was done upon the higlı
ſeas; as the taking a ſhip. There is a. caſe of that ſort occurs to my memo-
ry; the reaſon I remember it is, becauſe there was a queſtion about the ju-
riſdiction. There likewiſe was an action of that kind before lord chief
juf-
tice Lee, and another before me, in which I quoted that determination, toe
fhew, that when the Lords Commiſſioners of prizes have given judgement;
that is concluſive in the action; and likewiſe when they have given judge-
ment, it is conclufive as to the coſts, whether they have given cofts or not.
It is neceſſary in ſuch actions to ſtate in the declaration, that the ſhip was
taken, or ſeized on the high ſeas; viz. in Cheapſide. But it cannot be ſe-
riouſly contended that the judge and jury who try the cauſe, fancy the ſhip
is failing in Cheapſide ; no, the plain ſenſe of it is, that as an action lies in
England for the ſhip which was taken on the high ſeas, Cheapſide is named
as a venue; which is ſaying no more, than that the party prays the action":
may be tried in London. But, if a party. were at liberty to offer reaſons of
fact contrary to the truth of the caſe, there would be no end of the embar-.
raſſment. At the laſt fittings there were two-actions brought by Armenian"
merchants, for aſſaults and treſpaffes in the Eaſt Indies, and there are very
ſtrong authorities. Serjeant Glynn ſaid, that the defendant,. Mr. Verelſt,
was very ably affifted : ſo he was, and by men who would have taken the
objection, if they had thought it maintainable, and the actions came on to be
tried after this caſe had been argued once; yet the conſul did not think it:
could be ſupported. Mr. Verelſt would have been glad to make the objec-
tion; he would not have left it to a jury, if he could have ſtopped them
Thort, and ſaid, you ſhall not try the actions at all. I have had ſome actions
before
me, rather going further than theſe tranſitory actions ; that is, going :
to caſes which in England would be local actions : I remember one, I think
it?
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i
it was an action brought againſt captain Gambier, who, by order of Admiral
Boſcawen, had pulled down the houſes of ſome ſutlers who ſupplied the navy
and failors with ſpirituous liquors; and whether the action was right or
wrong, it was certainly done with a good intention on the part of the admi-
ral, for the health of the ſailors was affected by frequenting them. They
were pulled down. the captain was inattentive enough to bring the futler
over in his own ſhip, who would never have got to England otherwiſe; and
as ſoon as he came here, he was adviſed that he ſhould bring an action againſt
the captain. He brought his action, and one of the counts in the declara-
tion was for pulling down the houſes. The objection was taken to the
count for pulling down the houſes; and the caſe of Skinner and the Eaſt
India company was cited in ſupport of the objection. On the other fide,
they produced from a manuſcript note a caſe before lord chief juſtice Eyre,
where he over-ruled the objection ; and I orer-ruled the objection upon this
principle, namely, that the reparation 'here was perſonal, and for damages,
and that otherwiſe there would be a failure of juſtice ; for it was upon the
coaſt of Nova-Scotia, where there were no regular courts of judicature: but
if there had been, Captain Gambier might never go there again ; and there-
fore the reaſon of locality in ſuch an action in England did not hold. I
quoted a caſe of an injury of that ſort in the Eaſt Indies, where even in a
court of equity lord Hardwicke had directed ſatisfaction to be made in da-
mages : that caſe before lord Hardwicke was not much conteſted; but this
caſe before me was fully and ſeriouſly argued, and a thouſand pounds dama-
ges given againſt captain-Gambier. I do not quote this for the authority of
my opinion, becauſe that opinion is very likely to be erroneous; but I quote
it for this reaſon; a thouſand pounds damages and the coſts were a confider-
able fum. As the captain had acted by the orders of admiral Boſcawen, the
repreſentatives of the admiral defended the cauſe, aud paid the damages and
coſts recovered. The caſe was favourable ; for what the admiral . did
was certainly well intended ; and yet there was no motion for a new trial.
“ I recollect another cauſe that came on before me; which was the caſe
of admiral Palliſer. There the very giſt of the action was local : It was for
deſtroying fiſhing-huts upon the Labrador coaſt. After the treaty of Paris, ,
the Canadians early in the ſeaſon erected huts for fiſhing; and by that means
got an advantage, by beginning earlier, of the fiſhermen who came froin
England. It was a nice queſtion upon the right of the Canadians. However,
the
WILLIAM EARL OF MANSFIELD.
-377
1
the admiral, from general principles of policy, ordered theſe huts to be de-
ſtroyed. The cauſe went on a great way. The defendant would have ſtop-
ped it ſhort at once, if he could have made ſuch an objection; but it was
not made. There are no local courts among the Eſquimaux Indians upon
tliat part of the Labrador coaſt; and therefore w]latever injury had been done
--there by any of the king's officers would have been altogether without re-
dreſs, if the objection of locality would have held. "The conſequence of
that circumſtance ſhews, that where the reaſon fails, even in actions which
in England would be local actions, yet it does not hold to places beyond the
ſeas within the king's dominions. Admiral Palliſer's caſe went off -upon a
propoſal of a reference, and ended by an award. But, as to tranſitory actions,
there is not a colour of doubt but that every action that is tranſitory may be
laid in any county in England, though the matter ariſes beyond the ſeas;
and when it is abſolutely neceſſary to lay the truth of the caſe in the decla-
ration, there is a fiction of law to aſſiſt you ; and you ſhall not make uſe of
the truth of the caſe againſt that fiction, but you may make uſe of it to
every other purpoſe. I am clearly of opinion, not only againſt the objections
made, but that there does not appear a queſtion upon which the objections
could ariſe."
The other three judges concurred.
P.er Cur. Judgement affirmed.
Huſband and Wife.
Re-delivery by the wife after the death of her huſband * of a
deed delivered by her whilſt covert, is a fufficient confirmation of
ſuch deed, ſo as to bind her without its being re-executed or re-
atteſted; and circumſtances alone + may be equivalent to ſuch
re-delivery, though the deed be a joint deed by Baron and Feme,
affecting the wife's land, and no fine levied.
:
* Cowp. Rep. 201. 22 Nov. 1774.
on Expoſitio, quæ ex viſceribus caufæ nafcitur, eſt aptiffima & fortiſſima
in lege. 1o Co.:24.
с с с
The
1
378
THE LIFE OF
The grounds of this deciſion ſeem to deſerve the moſt ſerious
attention of the juriſprudent, who is here inſtructed to prefer the
ſubſtance of a deed to the ſemblance of it. For inſtance, although
it bears the ſemblance of a leaſe, it is in reality a ſecurity for mo-
ney. Again; the diſtinction between the deeds of married wo-
men and infants is important. The firſt are void, the ſecond
voidable. The reference to that found lawgiver, Perkins, was
likewiſe happily made in the ſubſequent caſe of Zouch and Par-
ſons, relating to Minors, anno 1765.
Lord Mansfield. “ It is inſiſted by the defendants, that the ſeveral exbi-
þits proved in the cauſe amount to a ratification of the mortgage by the
leffor of the plaintiff
. In ſtrictneſs, a fine is the proper method for a mar-
ried woman to part with her right, ſo that a formality of law only is wanting.
But, in conſcience, ſhe has confirmed this ſecurity which was entered into
for the maintenance and ſupport of herſelf and family. She and her huſband,
in immediate want of money for their ſubſiſtence, apply to Greening to lend
them one hundred and fifty pounds upon the mortgage of a reverſion :
Greening readily acquiefces, advances it without reſerve, and is content to
lie out of his money till the reverſion ſhould fall in. In a caſe fo* circum-
ſtanced, I thought it cruel to contend for the wife, that the mortgage was
void ; and, after ſo many folemn acts on her part, it is a proceeding againſt
every principle of natural juſtice and equity. Therefore I directed the jury
that, if they thought the facts given in evidence amounted to a ſufficient
confirmation by the wife, they ſhould find for the defendants; and they have
ſo done.
" Mr. Wallace, at the trial, put it on the footing of leafes by huſband and
wife, reſerving rent or no rent, which the authorities ſay are not void, but
only voidable by the wife after the huſband's death, and if ſhe ratifies them
ſhe is bound. It was anſwered, that thoſe authorities were by way of ex-
ception to the general rule of law, which ſays, the deed of a married woman
is void, and they were allowed of, for the ſake of agriculture and tillage.
That this, it is true, is a leaſe for ninety-nine years, and a century ago the
court would not have ſeen farther ; but now it is ſaid, the court muſt look
farther, and ſee the real intent of the deed, nainely, that it was a mort-
gage.
I
66 We
1
WILLIAM EARL OF MANSFIELD.
: 379..
-
“We are all of opinion, that the anſwer is a good one, and that the ex-
ception to the general rule was allowed of, for the advancement of agricul-
ture and tillage.
“ We are alſo of opinion, that the court ought to look into the ſubſtance
of the deed, and to ſee with the ſame eyes as the reſt of the world: it is in
ſubſtance a mortgage, though in form a leaſe for ninety-nine years. But we
think we have good authority to ſay, that the wife is nevertheleſs bound by
it, and that her ſubſequent acts ſet up this mortgage againſt her.
“ Perkins, which is a very good authority in point of law, in ſection 154,
ſays, “It is to be known, that a deed cannot have and take effect, at every
delivery as a deed ; for, if the firſt delivery take effect the ſecond delivery
is void. As, in caſe an infant, or a man in priſon, makes a deed, and de-
livers the ſame as his deed, &c. and afterwards the infant, when he cometh
to his full age, or the man impriſoned, when he is at large, deliver again
the faine deed as his deed, which he delivered before as his deed, the ſecond
delivery is void; but if a married woman deliver a bond unto me, or other
writing as her deed, this delivery is merely void; and therefore, if, after
the death of her huſband, ſhe being ſole, deliver the ſame deed again unto
me as her deed, the ſecond delivery is good and effettual.' The Year-books,
Mich. 3 Hen. VI. 4. and Hilary 8 Hen. VI. 8. confirm the propoſition laid
down by Perkins, namely, that the deed is not to be re-executed or re-at-
teſted, but delivered only. Now delivery, is an act in pais only.
“ The queſtion then is, Whether the law has laid down any preciſe form
in which delivery muſt be made ? or whether circuinſtances may not be equi-
valent to it without actual delivery?
“ Lord Coke in his Commentary on Lit. 36. ſays, “As a deed may be dc-
livered to a party without words, ſo a deed may be delivered by words,
without
any act of delivery; as if the writing ſealed lies upon the table, and
the feoffor or obligor ſays to the feoffee or obligee, Take up the faid writing;
it is ſufficient for you, as it will ſerve your turn ; it is a fufficient delivery.'
2 Roll. Abr. 26. pl. 2.
" This brings it to the fingle queſtion, Whether theſe facts amount to a
delivery
Now the mortgage-deed was in the hands of the mortgagee : the
wife, after the death of the huſband, the mortgagor, ſurrenders poſſeſſion
under her own hand to Saunders and Smith, the executors of the mortgagee,
and orders the tenants to attorn to them as executors of the mortgagee in
Ссса
terms.
1
380
THE LI FE OF
*
.
terms. This is a clear acknowledgement that: the deed was hers; and that:
ſhe was content the defendants ſhould enjoy, according to the terms of the
deed. Therefore we are all of opinion for the defendants, and that theſe:
facts.were-a-confirmation of the mortgage, upon the ground of their being
equivalent to a re-delivery of the deed.”
Per curiam, unanimouſly,
: Rule for a new trial diſcharged.
.
1775
:.
MIN 0 Rusa
Zouch on the demiſe of Abbot and another againſt Parfóns
: In an important queſtion in this cauſe, which had been twice:
tried, lord MANSFIELD, after ſtating the cafe. minutely. for: the:
benefit of the ſtudents,, introduced the following, fine. exe-
ardium:
-
-“ Miſerablë muft the condition.of minors be ; : excluded from the ſociety:
and commerce of the world.; deprived of neceſſaries, education, employe-
ment, and many advantages ; if they could do.no" binding acts. . Great in-
convenience muſt ariſe to others, if they were bound by, no act. The law
therefore, at the ſame time that it.protects their imbecillity and indiſcretion
from injury through their own imprudence, enables them to do binding act's
for their own benefit ; and, without prejudice to themſelves, for the benefit of
· ot bers.
“ To mention: a.rule or two; the reaſons, of which are applicable to the .
prefent cafe.
“ If an infant does a. right act which he ought to do, which he was compel--
Táble to do, it ſhall bind him : as if he makes equal partition ; if he pays rent;
if he admits a copyholder upon a ſurrender.. But there is no occafton to enu,
3 Burr, 1794.
enumerate
WILLIAM EARL OF MANSFIELD.
381.
6
merate inſtances. The authorities are expreſs; and the reaſon, deciſive
generally, whatſoever an infant is bound to do by law, the ſame ſhall.
bind him, albeit.he. doth it without ſuit of law *
- The 2d reſolution in Conny's caſe you is, “ that although the infant in the
caſe at bar was not compellable to attorn, becauſe the manor was not con-
veyed by.fine; yet, becauſè. by a Mean he was compellable to attorn, -ſci-
licet if a fine had been levied, the attornment was good.' Forteſcue lays it
down Iarger, 18 H. VI. fo. 2. a.. He did but that which he ought to do ::
therefore the attornment is good.'
66 The attornment of an infant to a grant by deed is good; becauſe it is co-
lawful act : albeit he be not, upon that grant by deed, compellable to ata
torn.” Co. Litt. 315. a. The reaſon is manifefta right and lawful act is
not within the reafon of the privilege, which is given, to protect infants
from wrong. His being compellable by any mean, or in any way to do it,
proves the act to be ſubſtantially what he ought to do.
“ In the caſe of Holt verſus Ward--the infant's being compellable by the
Eccleſiaſtical Court would have anſwered the objection made there, as much
as her being compellable. by the Common Law;, therefore civilians were
heard..
“ To what end ſhould the law permit a minor to avoid an act, which, in
any way, through any mean, by, any juriſdiction, he might be compelled to--
do over again, after it was undone? It would be aſſiſting him to vex and in--
jure.others, without the leaſt benefit to himſelf.
" Another. rule, which may be collected from the books, is, that the
acts of an infant, which do not touch his intereft, but take effect from an ·
authority which he is trufted to exerciſe, are binding :' as, where an infant-
patron preſents ; an infant-executor. duly receives and acquits, pays and ad-
miniſters the aſſets ; an infant-head of a corporation joins in corporate-acts ;
an infant-officer does the duty of an office which he may hold.
“ A third rule. deducible from the nature of the privilege, which is given
as. a.ſhield and not as a ſword, is, that it never ſhall be turned into an
offenſive weapon of fraud or injuſtice.' As where tenant for life and infant.
t
* Co. Litt. 172. a, -
yfir 9 Co. 85.b.
in
1
382
THE LIFE OF
$
1
1
in remainder levied a fine,--the infant reverſed the fine, as to himſelf, of
the inheritance, for nonage : yet he ſhall be bound by his aſſent to the fine
and joining in it, nor to enter for the forfeiture. And the fine was held
good as to the eſtate of tenant for life, and reverſed quoad the infant only.
Pigot verſus Ruſſel, 2 Leon. 108. Cro. Eliz. 124. S. C.
" To ſee whether the reaſons of theſe rules are applicable in the pre-
fent caſe, it is neceſſary to aſcertain what is in truth the nature of this
tranſaction.
“ Part of the perſonal eſtate of William Cook conſiſted of one hundred
and nine pounds, due from John Bicknell, ſecured by a mortgage in fee.
His widow and infant-ſon were joint executors, and refiduary legatees; and,
as ſuch, intitled to this money. The fee which deſcended to the ſon was
merely as a pledge for the money; beſides the money, the infant had no beneficial
intereſt in the land whatſoever. Upon payment, he was bound to convey
as the mortgagor ſhould direct.
“ Conveying is no more than delivering up a ſécurity when it is ſatisfied.
The money here was paid to the proper hand.
“ An adult, under the ſame circumſtances, would have been guilty of a
breach of truſt; if he had refuſed, he would have been compelled to do it,
and would have been condemned in coſts for refuſing.
“ By act of parliament 7 Ann. * the infant was compellable to do it, du-
ring his minority.
"" It is much ſtronger here, that the money was paid by the plaintiffs ; who,
upon the faith of this conveyance, and the title-deeds produced by Bicknell
the mortgagor, advanced more money.
“ The whole beneficial eſtate belonged to Bicknell, after paying the one
hundred and nine pounds. The infant's conveyance was matter of form,
and in the nature of an authority, executed by Bicknell's direction, in favour
of a third perſon who ventured his money upon the faith of it.
“ It would be iniquitous in the infant to avoid it. It would be unjuſt to
ſet up the privilege, to make an innocent man loſe his money, circumvented
by his confidence in the infant's concurrence.
* V. c. 19. § 2.
66 But
cament
t
WILLIAM EARL OF MANSFIELD.
383
S
“ But it could not even have that effect. It would be nugatory, and
without any effect.
effect. For, if it was avoided, he muſt take the ſame convey-
ance over again; he would be compelled to do it. A conveyance to the de-
fendant would be a breach of truſt.
“ By the caſe ſtated upon the firſt trial *, it did not appear that the in-
fant's conveyance was a right act; ſuch as he ought, and was compellable
to do. The court then ordered a new trial, to get a more correct ſtate of
the caſe.
Upon the ſecond trial, it now comes out clear, that the infant was ex-
preſsly a truſtee for the plaintiffs. He was paid by them: upon the faith of
the fee being in him they advanced more money.
“ If the fee was in a ſtranger, the plaintiffs have the prior equity. If
Thorne had been prior, his letting the mortgagor have the title-deeds might
be ſufficient to postpone him; and the defendant had expreſs notice.
6. There can be no doubt that the infant was compellable to do what he
has done.
“ Upon the firſt queſtion, we are all of opinion,
" that this conveyance
binds the infant.'
“ But, ſuppoſing it not binding againſt him, or thoſe who may ſtand in
his place;
“ The ſecond queſtion is, "whether the defendant can take advantage of
the infancy; and, on that account, object to the conveyance ?''
“ This depends upon two points; ift, 'Whether this conveyance: be
void, or voidable only?' 2dly, if voidable only, "Whether the infant, by
his entry before the Aſſizes, had abſolutely avoided it?'
" It is not ſettled, what is the true ground upon which an infani's deed is
voidable only :-Whether the ſolemnity of the inſtrument is ſufficient;' or
• it depends upon the ſemblance of benefit to the infant, from the matter of
the deed upon the face of it.
“As to the firſt, the ſolemnity of the inſtrument—we think the law is, as
laid down by Perkins-That all ſuch gifts, grants, or deeds, made by
infants, which do not take effect by delivery of his hand, are ucid ; but all
* See the beginning of this caſe.
ufo Sect. 12.
gifts,
384
THE LIFE OF
r
.
gifts, grants, or deeds, made by infants, by matter in deed or in wüting,
which do take effe&l by delivery of his hand, are voidable, by himſelf, by bis
heirs, and by thoſe who have his eſtate. The words which do, take effect arc
an eſſential part of the definition ; and exclude letters of attorney, or deeds
which delegate a mere power and.convey no intereft.
6c In Bro. Abr. Title “ Dum fuit infra-etatem, pl. I.. (which cites 46
Edw. III. 34.) it is noted that a dum fuit infra ætatem was admitted to
lie of a rent; and yet, by ſome, the grant of an infant was void and not
voidable.' But (ſays the book) it is not ſo ; for then this.action would not
lie. And beſides, the delivery :of a deed can not be void, but only
voidable.
“There is no difference, in this reſpect, between a feoffment and deeds
which convey an intereſt. The reaſon is the fame.
“ The delivery of the deed muſt be in the preſence of witneſſes as much
as the livery of ſeifin. The ceremony is as folemn. · The preſumption
• that the witneſſes would not atteſt, if they ſaw him an infant,’ holds
£qually as to both.
66 Littleton, who writes with great accuracy and preciſion, puts them
-
both-upon the ſame foot. He ſays *, “ If, before the age of twenty-one,
any
deed or feoffment, grant, releaſe, confirmation, obligation, or.other wri-
ting: be made by any of them, &c.; all ſerve for nothing, and may be
avoided.'
" In 2 Inſt., 673, a. bargain and ſale. inrolled by an infant is denied to be
matter of record which the infant muſt avoid during his minority; but the
book ſays, “ he may avoid it when he will. '
“ An infant, or they who ſtand in his place, can not plead “ Non eft
fạElum," and give the infancy in evidence; but they muſt plead the infancy
Specially, to avoid the deed : and that plea avoids it, by.relation back to the
delivery. The reaſon of this is, becauſe it has an operation from the deli-
very; and not becauſe it has the form of a deed.
« The deed of a feme-covert has the formi ; but ſhe may plead Non eft
factum ;' becauſe it has no operation.
i
waren
* Sect. 259.
66 The
-
1
WILLIAM EARL OF MANSFIELD.
385
4
2
« The diſtinction between the deeds of femes-covèrt, and of infants, is
important: the firſt, are void; the fecond voidable.
" Perkins, Sect. 154. * ſays—. And it is to be known, that a deed cannot
have and take effect at every delivery, as a deed; for, if the firſt delivery
take any effect, the ſecond is void. As in cafe an infant make a deed
and deliver the ſame as his deed, &c.; and afterwards, when he comes of
füll age, delivers it again as his deed ; this ſecond delivery is void. But,
if a married woman deliver a bond unto me, or other writing, as her deed ;
this delivery is merely void; and therefore if, after the death of her huſband,
The, being ſingle, deliver the ſame again unto me as her deed, the ſecond
delivery is good and effectual.'
*.6 Two objections were made at the bar to this propoſition ; at leaſt, in
its extent. iſt, that leaſes by an infant, by deed, upon which no rent is
reſerved, are abſolutely void: therefore the criterion, 'whether the deed is
void or voidable,' does not depend upon the delivery; but upon the matter
and contents whether it may poſſibly be for the infant's benefit.' 2dly, A
ſurrender by an infant, by deed, is abſolutely void; therefore all deeds are
not voidable only.
“ As to the firſt, there are many obiter ſayings; but there is no ſufficient
authority, clearly to outweigh the reaſons againſt this poſition. I cannot
find a caſe adjudged ſingly upon this ground. What looks the likeſt to an
authority, is the opinion of Wray and Southcote againſt Gawdy, in Hum-
phreſton's caſe, 16 Eliz. Moore 105. and 2 Leon. 216 mp : but there the
judgement was upon the rights and merits of the caſe, and not upon the
point of the leaſe. The queſtion, as to the leaſe, aroſe upon the fictitious
leaſe to try the infant leſſor of the plaintiff's title in ejectinent. The two
(Wray and Southcote) held that, no rent being reſerved, there was no fem-
blance of benefit' to the infant; whereas, in truth, it was greatly for his be
nefit. The objection was turning his own privilege of infancy againſt him,
to bar his recovering. Beſides, the leaſe was by parol.
“But reaſon foon prevailed ; and it has been long ſettled, that an in-
fant may make a leaſe, without rent, to try his title.' Very prejudicial leaſes
1
5
* Title, Faites ; page 32. .
ho V. alſo S. C. in Benlo. 195. Owen 64. Dyer 337, a.
Ddd
1 And. 40.
may
386
THE LIFE OF
may be made, though a nominal rent be reſerved ; and there may be moſt
beneficial conſiderations for a leaſe, though no rent be reſerved.
" What ſeems deciſive is, that the lefſee can in no caſe avoid the leafe
on account of the infancy of the leſſor;' which ſhews it not to be void, but
voidable only. And it is better for infants, that they ſhould have an election.
“ As to the ſecond the authority of Lloyd * verſüs Gregory was cited :
and ſayings arguendo, in Thompſon apo verfus Leach.
- The caſe of Lloyd verſus Gregory was determined upon the ſpecial
verdict, by three judges; of whom, Sir William Jones and Croke were
two.
“ Sir William Jones reports, that the ſecond leaſe being void, made an end
of the queſtion; and that the judges gave no opinion upon the other points.
“ The note in Croke does no ſay a word of the only ground of the
judgement; but rather ſuppoſes the ſecond leaſe good, by arguing, that,
there being no increaſe of term, or diminution of rent, it had no ſemblance
of benefit.' Croke's note might be confounded with what paſſed upon the
trial at bar; for, Roll ſtates ſayings to that effect upon the trial at bar.
1 Ro. Abr. 728 5.
“ But Sir William Jones is certainly right; for, the ſecond leaſe was void.
And no ſurrender, expreſs or implied, in order to, or in confideration of, a
new leaſe, would bind, if the new leaſe is abſolutely void; for, the cauſe;
ground, and condition, of the ſurrender fails.
“ In Thompſon verfus Leach (which was a moſt favourable caſe for the
plaintiff) much is ſaid, in argument, “to prove the ſurrender of an infant
or lunatic to be void ;' to get rid of ſome doctrine laid down in Whitting-
* Lloyd verfus Gregory is reported in Cro. Car. 502, and Sir William
Jones, 405, and is abridged in 2 Ro. Abr. 24. Title « Faites," Letter I.
pl. 6, and 495. Title “ Surrender," Letter F. pl. 7, and in 1 Ro. Abr. 728.
Title “ Enfants," Letter B. pl. 2 and 3.
met 3 Lev. 284. 2. Ventr. 198, 199, 3 Mod. 296, 301. 2 Salk. 618.
Parliament Caſes 150. I Shower 296. Comberb. 438. 468. Carthew.
211. 435. Equity-Caſes abridged, pa. 278. Pl. 3. - 3 Salk.
300. 12 Mod.
173, and Holt 357, 623.
.
Cro. Jac. 502.
ham's
WILLIAM EARL OF MANSFIELD.
387
1
ham's cafe *, . that the remainder-man, injured by the act, could not avoid
it.' But more is ſaid to overturn that doctrine. There is no difference, in
this reſpect, between the heir in tail and the remainder-man : neither claims
under hiin whoſe act is in queſtion ; but both claim per formam doni.
" In Palmer, 254 +, Dodderidge denies the doctrine ; and ſays, “he in
remainder, and the donor, ſhall take advantage of infancy;' which is
agreeable to Littleton's reaſoning, ſect. 635. It ſhould ſeem againſt reaſon,
that a feoffment made by an infant ſhall grieve or hurt another, to take from
them their entry, &c.'
“ Suppoſe the compariſon between an infant and a man Non compos juſt
(which it is not), the point of the ſurrender being void or voidable' was
not neceſſary to the judgement in that caſe.
“I know of no judgement, upon the ground that ſuch a ſurrender is
void.' Moftundoubtedly, the other party can not ſay ſo. If an infant was to
ſurrender an unprofitable leaſe ; and, after acceptance, the premiſſes ſhould
be burnt, overflowed, or otherwife deſtroyed; the lefor never could ſay the
ſurrender was void. There is no inſtance where the other party to a deed
can object on account of infancy. Conſequently, the infant may let the
ſurrender ſtand, or avoid it; which proves it to be voidable only.
- If a new caſe ſhould ariſe, where it would be more beneficial to the in-
fant
that the deed ſhould be conſidered as void ;' if he night incur a for-
feiture, or be ſubject to damages, or a breach of truſt, in reſpect of a
third perſon, unleſs it was deemed void ; the reaſon of the privilege would
warrant an exception, in ſuch caſe, to the general rule.
“ Powers of Attorney are an exception to the general rule, as to deeds; and
a power to receive ſeiſin is an exception to that. The end of the privilege is,
to protect infants :' to that object, therefore, all the rules and their excep-
tions muſt be directed
“But be the point upon the ſolemnity of the delivery as it may (for there
are reſpectable ſayings the other way); it is not neceſſary to our determina-
tion. For we are all of opinion, that the one hundred and nine pounds
feceived, and the other circumſtances of the tranſaction, ſhew a ſemblance
G
* 8 Co. 43•
H. 45 Eliz.
of In Darcy verſus Jackſon (to the third point of that caſe.)
Ddd 2
of
1
::
1
388
THE LIFE OF.
2nd Point of
of benefit, fufficient to make it voidable only, upon the matter of the con-
veyance.
* If it be voidable only, the ſecond point is, whether
the ſecond ge the infant, by his entry before the aflizes, (which appears
neral queſtion.
to be during his minority), has avoided it.
" At the Common Law, the only conveyance in pais, of the freehold
and inheritance of land, with tranſmutation of poffeffion, was by feoffment,
If it was tortious, the diffeiſee was obliged to enter, to re-veſt his poffeffory
title ; and then he might bring an action of treſpafs. So, in the caſe of
feoffments by an infant; he might enter during his minority, to re-veſt his
poffeffory right, for the ſake of the profits ; but ſtill the feoffiñent was
voidable only; and he might elect to confirm it, when he attained his full
age.
“ The reaſon why an infant cannot bring any writ analogous to a Dum
fuit infra ætatem, during his minority, is, that his election may not be bound by
the judgement.'
6.6 Whether an entry: be of any uſe in the prefent caſe, is not material
it is ſufficient, that it cannot have any larger effect than in the cafe of a
feoffment. The infant is alive, ſtill a minor. The defendant can not elect
for him ; he is a mere ſtranger, in every view; and has no eſtate affected by
the conveyance.
“We are all of opinion, that the plaintiffs ought to recover.' And it is
well for the defendant we are of this opinion. He would get nothing by
defeating the plaintiffs here ; for finally, in another mode of proceeding,
the conveyance muſt be confirmed; and the defendant would be to pay all
the coſts here and there...
..66 It is fortunate for the füitors on both ſides, when, conſiſtent with rules.
and forms of proceeding, that juſtice, which muſt be the final determination
of the queſtion, may be done in the firſt ſtage of the litigation.
" The conſequence of what has been ſaid, is, that
The Poftea muſt be delivered to the Plaintiffs.”
.
1
Love Acres, on the demiſe of Mudge, againſt Bligh et Ux..
The Teſtator deviſes thus, as touching my worldly eſtate, I de-
viſe the ſame as follows. I give to my wife M..51. to be paid year-
lay
1
I
WILLIAM EARL OF MANSFIELD. .
389
ly out of my eſtate at G. Item, to T. M. and E. 51. each, to be
paid twelve months after my deceaſe. Item, to my two ſons T.
M. &c. R. M. whom I make my
and ordain my role
executors, all my lands and tenements freely to be enjoyed and
ed alike. T. M. and R. M. are tenants in common, and take a fee.
poffefl.
1
“Lord Mansfield. The principles by which this caſe muſt be governed,
are ſettled by analogy to eſtabliſh rules reſpecting the limitation of eſtates.
by deed at common law. · If a man by deed of conveyance at common law
gives land to another generally, without words of limitation, the donee has
only an eſtate for life. But I really believe, that almoſt every caſe deter-
mined by this rule, as applied to a deviſe of lands in a will, has defeated the
real intention of the teſtator. For, common people, and even others who
have ſome knowledge of the law, do not diſtinguiſh between a bequeſt of
perſonalty, and a deviſe of land or real eſtate. But, as they know when
they give a man a horfe, they give it him for ever; ſo they think if they
give a houſe or land, it will continue to be the ſole property of the perſon
to whom they have left it. Notwithſtanding this, where there are no words
of limitation, the court inuft determine in the caſe of a deviſe affecting real
eſtate, that the deviſee has only an eſtate for life: becauſe the principle is
fully ſettled and eſtabliſhed, and no conjecture of a private imagination can
fhake a rule of law.
But, as this rule of law has the effect I have juſt mentioned, of defeating
the intention of the teſtator in almoſt every caſe that occurs; the court has
laid hold of the generality of other expreffions in a will, where any ſuch can.
be found, to take the deviſe out of this rule. Therefore, if a man ſays,
• I give all my eſtate,' that has been conſtrued to paſs a fee: or, even if words
of locality are added, as - all my eſtate in A, it has been held, that the whole
of the teſtator's intereſt in ſuch particular lands will paſs, though no words
of limitation are added. 2 P. Wm'sa 524: becauſe the law ſays, that the
word, eſtate" comprehends not only the land or property which a man has,
but alſo the intereſt he has in it. So, in a late caſe from Ireland *, the court
had no difficulty in ſaying, that the words - all my. wordly ſubſtance,' in the
introductory part of the will, meant every thing the teſtator had; and that
* Hogan, ex dim. Wallis, verſus Jackſon, Cowp. 299
16
the
1
.390
THE LIFE OF
?
the words all his real effe&ts,' in the fubſequent reſiduary deviſe, were equi-
valent to worldly ſubſtance, and carried every thing to the reſiduary deviſee.
In general, wherever there are words and expreſſions, either general or par-
ticular, or clauſes in a will which the court can lay hold of, to enlarge the
eſtate of a deviſee, they will do fo to effettuate the intention. But if the in-
tention of the teſtator is doubtful, the rule of law muſt take place: ſo, if the
court cannot find words in the will ſufficient to carry a fee, though they
fhould themſelves be ſatisfied beyond the poſſibility of a doubt, as to what
the intention of the party was, they muſt adhere to the rule of law.
st Now, though the introduction of a will, declaring that a man means
to make a diſpoſition of all bis worldly eſtate, is a ſtrong circumſtance, con-
nected with other words, to explain the teſtator's intention of enlarging a
particular eſtate, or of paſſing a fee where he has uſed no words of limita-
tion, it will not do alone. And all the caſes cited in the argument, to Thew
that the introductory words in this caſe would alone be ſufficient, fall ſhort
of the mark; becauſe they contained other words clearly manifeſting the in-
tention of the teſtator to paſs a fee.
- The queſtion is always a queſtion of conſtruction, and depends upon
obſervations naturally ariſing out of the will itſelf. And therefore, if in this
caſe there are words in the will which denote an intention in the teſtator to
give his fons more than an eſtate for life, the court will give effect to that
intention...Now if a man deviſe lands to another, paying thereout rool. *
any other grofs ſum, though he add no words of limitation, yet the deviſee
ſhall have a fee: becauſe unleſs he were to take a fee, he cannot be ſure, of
paying the rool. So if an eſtate be given to A. to be ſold for payments of debts
and legacies , the purpoſe to be anſwered makes it a fee, without words of
limitation. In ſhort, wherever any thing is directed to be done, which,
ſtrictly ſpeaking, an eſtate for life only may not be ſufficient to anſwer, the
court will imply a fee.
“ Let us examine then the obſervations that ariſe upon this will.--The
firſt material obſervation upon which it has been argued that the teſtator
meant to give his younger ſons a fee in this caſe, is, a bequeſt to his wife
of an annuity of 57. &c. which he gives thus: I give to my wife the ſum of
51. to be paid yearly out of my eſtate called Glose, and alſo one part of the
dwelling-houſe with as much woodcroft home at her, as ſhe thall have need
or
* Wellock verſus Hammond. 2 Leo. 114.
olie ift. Chan. Caſes 196-7
of,
WILLIAM EARL OF MANSFIELD.
397
of, by my executors hereafter named.' It is clear, that in this deviſe fome
word is miſplaced or left out; and where that is the caſe, if it be neceſſary
to diſcover the intention of the teſtator, the court may ſupply it. Now the
moſt obvious word to be ſupplied here, as it ſtrikes me, is the word “re-
queſt;' at ber requeſt, would make the ſenſe complete. Then, as to the de-
viſe itſelf, the 51. is directed to be paid by the executors out of the eſtate,
and the wood is to be provided at all events; it therefore muſt be ſuppoſed
to be brought home from off the eſtate. . But, if the executors were to take
only an 'eſtate for life, they would not be able to pay the annuity during her
life out of the profits only, or to furniſh all the wood ſhe might want; be-
cauſe the ſtock on the eſtate might fall ſhort. It is but reaſonable therefore,
to infer, that ſuch an intereſt was intended as would enable them to comply
with the teſtator's directions, fully and completely, in every reſpect.
“ It is not an immaterial obſeryation that has been made upon the deviſe
over of the houſehold goods to the executors, to be equally divided between
them as the teſtator expreſſes it, after my death,' which ſhould clearly have
been after her death.'
- The next obſervation ariſes upon the words whom I make my, and
ordain, &c. The word my, without ſome addition, means nothing at all.
It cannot mean executors, becauſe the teſtator has expreſſly inſerted that
word afterwards. It ſeems, therefore, moſt natural and proper to inſert the
word heirs. But I reſt upon the other grounds rather than upon the con-
jecture how the blanks ſhould be filled up.
The laſt obſervation is drawn from the words freely to be poleſed and en-
joyed by them alike. Now the word “freely,' ſtrikes me as a very material
word: for the teſtator has charged the eſtate with the payment of the annu-
ity to his wife, &c. fo that he could not mean by the word “freely' to give it
free of incumbrances. The free enjoyment, therefore, muſt mean, free from all
limitations ; that is, the abſolute property of the eſtate.
Upon theſe obſervations ariſing on the face of the will itſelf, coupled
with the introductory clauſe; I am of opinion, upon the firſt queſtion, that
the teſtator's intention was to give his ſons John and Robert a fee. If ſo, it
is equally clear, upon the ſecond queſtion, that this is a tenancy in common.
The word ' alike is the ſame as the word equally,' and, in the deviſe of the
houſehold goods, the teſtator has made uſe of the word equally. Therefore
the leffor of the plaintiff is entitled to a moiety.
The three other judges concurred per Curiam.
Judgement for the Plaintiff for one moiety.
1776.
392
THE LIFE OF
1776.
The King againſt John Tubbs *.
The power of impreſſing ſeamen, ſea-faring-men, and perſons
whoſe occupations and callings are to work in veſſels and boats
upon rivers, is founded upon immemorial uſage ; and there may
be a legal right of exemption upon the ſame foundation. The
legal enquiry as to facts which will or will not amount to proofs
of ſuch exemption produced the following conſtitutional and
energetic ſpeech :
Lord Mansfield. “ I am very ſorry, that either of the reſpectable parties
before the court, the city of London on the one hand, or the lords com-
miffioners of the admiralty on the other, have been prevailed upon to agi-
tate this queſtion.
“ Of the utility of this man to the city of London, or to the lord mayor,
no one can ſeriouſly ſpeak. A man retained to earn half a crown a day,
without badge or livery, without any obligation upon him to attend; whoſe
entrance into the ſervice of the lord mayor is voluntary, and who, if he
chuſes to quit it for any other employment, creates no inconvenience to any
body, or a difficulty to ſupply his place! Notwithſtanding this, if the city
of London has a privilege of protecting thirty-one perſons from being im-
preſſed, they have a right to infiſt upon ſuch privilege. On the other hand,
where is the immenſe utility to the public ſervice with regard to theſe thirty-
one perſons, whether they are impreſſed or not? It is impoſſible they can
be an object. The utility therefore, in the one caſe or other, cannot be the
ground of the preſent diſpute ; but it muſt have ariſen upon this : The city
would not aſk, or take the exemption of this man as a favour, but inſiſt
upon it as a right, and in a manner in which they never inſiſted upon it be-
fore; and the admiralty, jealous of new rights of exemption being ſet up,
would not grant it as a right. The real queſtion between them is, Whether
there is a legal right of exemption or not?
* Cowp. 512.
66 I
WILLIAM EARL OF MANSFIELD.
393
" I was in hopes the court would have had an opportunity of inveſtigating
this point to the bottom, inſtead of being urged to diſcuſs-it ſo inſtanta-
neouſly, and without any evidence with regard to the foundation of the
claim. I own, I wiſhed for a more deliberate conſideration upon the ſubject;
but, being prevented of that, I am bound to ſay what my preſent ſenti-
ments are.
“ The power of preſſing is founded upon immemorial uſage, allowed for
ages; if it be not ſo founded and allowed for ages, it can have no ground to
ſtand upon, nor can it be vindicated' or juſtified by airy reafon but the ſafety of
the ſtate ; and the practice is deduced from that trite maxim of the conſti-
tutional faw of England, that private miſcliief had better be ſubmitted to,
than public detriment and inconvenience ſhould enſue.” To be ſure there
are inſtances where private men muſt give way to the public good. In every
caſe of preſſing, every man muſt be very forry for the act, and for the ne-
ceſſity which gives riſe to it. It ought therefore to be exerciſed with the
greateſt moderation, and only upon the moſt cogent neceſſity'; and though
it be a legal power, it may, like many others, be abuſed in the exerciſe of it:
A bailiff may execute legal proceſs in ſuch a manner as the court would
commit for. In like manner, the power of preſſing may be abuſed'; as by :
preſſing the watermen of the ford mayor whilſt they are in the act of rowing
him in his barge: And many other inſtances might be put.
66 Being founded in inmemorial uſage, there can be no doubt but there
may be an exception out of it, on the fairie foundation, upon immemorial
ufage: I therefore lay out of the cafe all that has been ſaid about the
neceffity of an act of parliament to create an exemption, and likewiſe all
that has been mentioned relative to the doubt ftated of the power of the
crown to exempt by charter. If it were at all neceſſary to go into that
queſtion here, it might be ſufficient to obſerve, that all the rights of the
city have been confirmed by act of parliament; but what has been approved.
by immemorial uſage allowed for ages, is always ſuppofed to have had a good
beginning. Therefore, if the exception or exemption, ſtands upon that
ground, it is as good as the inſtitution itſelf.
.166The only queſtion upon what appears before us is, “Whether, in fact,
there is evidence of ſuch uſage as a matter of right? I ſay, as a matter of
right; for, it is well known, that many perſons have granted protections,
E ec
many
.
1
1
1
394
: THE LIFE OF
many having given badges, to, watermen, and have claimed that they ſhould
be exempt. Peers have done it; and queſtions in the Houſe of Lords have
ariſen upon it. Members of the Houſe of Commons have retained water-
ment; and perhaps the Lords of the Admiralty may have paid regard to appli-
cations made in behalf of ſuch men, and may have diſcharged them. So
here, if the parties had cared to have made ſuch application, it might have
been attended to, and coniplied with; for, as a matter of favour, it is im-
poffible to ſuppoſe the Lords of the Admiralty would have made a moment's
heſitation or diſpute ; but it is inſiſted on and claimed as a matter of right.
“Let us ſee, therefore, whether this is an eſtabliſhed exemption of right.
** Every exemption throws the burthen heavier on thoſe who are ſubject
to bear it. Therefore, for their fakes, as well as for the public ſervice, all
exemptions ought to be examined and clearly ſet out. In the firſt place, it
does not appear from any law-book, it does not appear from any hiſtory, it
has not been ſuggeſted at the bar, that there is, throughout the whole king-
dom, any other exemption by the common law. When I ſpeak of exemp-
tion, I mean exemption out of the deſcription : for to ſuppoſe the uſage ex-
tends to private gentlemen amuſing themſelves with yachts, &c. is abfurd.
is Perſons liable muſt come purely within the deſcription of feamen, ſea-fa-
ring men, &c. He therefore who is not within the deſcription, does not
come within the uſage. The commiſſion is not to preſs landmen, or perſons
of any other deſcription of life but ſuch men as are deſcribed to be ſea-
faring men, &c. Officers are not within the deſcription. It is a very ſtrong
circumſtance, therefore, that there is in fact no other exception ſtated or
alluded to, which reſts upon the common law. There are many exemptions
by ſtatute ; but they are grounded upon confiderations of public policy, at
the particular times of their being made; and upon the circumſtances of its
being in fact better for the ſervice, that the objects of thoſe acts ſhould be
exempted, than that they fhould be ſubject to be preſſed; as apprentices,
landmen entering voluntary, fiſhermen, all foreigners ; and in reſpect of
theſe laſt-mentioned, the reaſon is very obvious; for, during the time of
war, the Act of Navigation has been difpenfed with, and two-thirds of the
crew of merchantmen have been allowed to be foreigners. Harpooners and
others have been exempted. A line has been drawn with reſpect to the age;
and many other inſtances might be put; but the exemption of thoſe, called
the
WILLIAM EARL OF MANSFIELD..
395
1
the watermən of the city of London is to be found in no ſtatute or common
law book whatſoever.
“ Let us fee, then, how the uſage ſtands upon the evidence now before
the court. A certificate from the water-bailiff is produced, the contents of
which have been read; and in the affidavits apprehenſions are ſtated of a re-
puted cuſtom, that theſe thirty-one watermen are exempted from being im-
preſſed. Four inſtances and no more are produced, which aroſe at differ-
ent times ; and in reſpect of which this equivocal kind of fact is ſtated, that.
four perſons were preſſed, and that upon application from the lord mayor to
the Admiralty they were immediately, or ſoon after, diſcharged; but what
the nature of the application was, whether requeſted as a matter of favour, or
demanded as of right, is not ſtated. If requeſted as a matter of favour, it
,would have been very extraordinary for the Lords of the Admiralty to have
refuſed it. Here the application is an application of right, by an order of
court of the lord mayor and aldermen. As to three of the inſtances pro-
duced, it is not aſcertained what they were ; nor is there any memorandum
or mention made of them in the Admiralty books. As to the fourth, the
man had ſo little idea of legal rigkit to be exempted, that he offered to find
another perſon to ſerve in his room. And this is the only inſtance where
the court fees the manner of the application. On the other hand, very ſtrong
eirumſtances as to what has been the uſage; ariſe from the inſtructions which
are given to the officers employed on the impreſs fervice, and which it
would be unpardonable in the Admiralty to omit. In theſe inſtructions
every
known and eſtabliſhed legal mode of exemption is expreſsly taken .no-
tice of and ſet out. In addition to this, it is ſworn by Mr. Stephens in his
affidavit, that there never was any inſtruction given not to preſs the wa-
termen of the city of London." If it were a legal right, the city ſhould have
inſiſted on having that right taken notice of in the inſtructions. Even: par,
ticular protections from the Navy and Victualling Office are taken notice of;.
but there is no mention made of any protection from the lord mayor. with
reſpect to his watermen. There is no inſtance of any officer upon the
impreſs ſervice ever Having paid any regard to a water-bailiff's certificate,
por any caſe produced where the city has taken it up as a matter of right, or
infifted
upon
it as fuok in a court of juſtice. Therefore,. to give my opinion.
upon the caſe.as at preſent: ſtated, and upon the mere fact, whether this:
Ee. e. 2
.
:
396
THE LIFE OF
exemption as bere claimed iş, or is not, warranted by immemorial uſage, I lay
it is. At the faine time this opinion is without prejudice to any future evi-
dence to be adduced in ſupport of the claim, if any ſuch can be furniſhed.”
ܕܕ
1
Bexwell againſt Chriſtie *
An inveſtigation of the unfair practices made uſe of at auctions,
and the principles which ought to prevail in fair ſales, took place
in a cauſe wherein it was determined, that an action does not lie
againſt an auctioneer for ſelling a horſe at the higheſt price bid
for him, contrary to the owner's expreſs directions not to let
hin
go
under a larger ſum named. Otherwiſe if the owner had
directed the auctioneer to ſet the horſe up at ſuch a particular
price, and not lower.
Lord Mansfield. “ The matter in queſtion is in itſelf of ſmall value; but
in reſpect of the principles by which it muſt be governed, it is a queſtion of
great importance. Since the trial, I have mooted the point with
many
who are not lawyers, upon the morality and rectitude of the tranſaction.
The queſtion is, whether a bidding, by the owner of goods, at a ſale, un
der theſe conditions, viz. “ that the higheſt bidder ſhall be the purchaſer,
and, if a diſpute ariſe, to be decided by a majority of the perſons preſent;
is a bidding within the meaning of ſuch conditions of ſale.
" There is no expreſs undertaking on the part of the defendant, nor
is it, as has been ingeniouſly ſaid, a direction, that there ſhould be no bid-
ding under 15l, which might be fair : but the direction given to the defen-
dant is, - not to let the horſe go under 151. which implies that there might
be a bidding under that ſum.' The queſtion then is, whether the owner can
privately employ another perſon to bid for him.' The baſis of all dealings
ought to be good faith; fo more eſpecially in theſe tranſactions, where the
public are brought together upon a confidence that the articles ſet up to falë
will be diſpoſed of to the higheſt real bidder : that could never be the caſe,
if the owner might ſecretly and privately inhance the price, by a perſon em
I
3
* Cowp: 395.
ployed
1
WILLIAM EARL OF MANSFIELD.
397
ployed for that purpoſe"; yet tricks and practices of this kind daily increaſe,
and grow ſo frequent, that good men give into the ways of the bad, and
become diſhoneſt in their own defence. But ſuch a practice was never
openly avowed. An owner of goods ſet up to ſale at an auction never yet
bid in the room for himſelf. If ſuch a practice were allowed, no one would
bid. It is a fraud upon the ſale, and upon the .public. The diſallowing it -
is no hardſhip upon the owner. For, if he is unwilling that his goods ſhould
go at an under price, he may order them to be ſet up at his own price, and
not lower : ſuch a direction would be fair : or.he might do as was done by
lord Aſhburnham, who fold a large eſtate by auction ; he had inſerted in
the conditions of ſale, that he himſelf might bid once in the courſe of the
fale: and he bid at once 15 or 20,000l. Such a condition is fair; becauſe
the public are then appriſed, and know upon what terms they bid. In Hol-
land it is the practice to bid downwards.
- The queſtion then is, is ſuch a bidding fair ? If not, it is no argument
to ſay, it is a frequent cuſtom. Gaming, ſtock-jobbing; and ſwindling, are
frequent. But the law forbids them all. Suppoſe, there was an agreement
to abate ſo much; which is the caſe where goods are ſold by one perſon in
the trade to another; they abate ſometimes ten or fifteen per cent.
agreement between the owner and bidder, at a ſale by auction, would be a
groſs fraud. What is the nature of a ſale by auction ? It is, that the goods
ſhall go to the higheſt real bidder. But there would be an end of that, if
the owner might privately bid upon his own goods. There is no contract
with the auctioneer : he is only an agent between buyer and ſeller. He
may fairly bid for a third perſon who employs him ; but not for the
owner.
“ In this caſe there is another fraud put upon the public. For, by the
catalogue, the goods are deſcribed to be the goods of a gentleman deceaſed,
and fold by order of the executor.' Upon this repreſentation many people
would attend to bid, on a ſuppoſition that the goods were neceſſarily to be
fold at all events, whether valuable, or not valuable; whereas they might
have their ſuſpicions, if they were the property of perſons living. Horſes,
or any other ſpecies of property, belonging to perſons that are dead, are not
ſo likely to be faulty, as thoſe which are parted with by perſons in their life-
time.
6 We
.
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398
THE LIFE OF
“ We all remember the ſale of a gentleman's wines *, where vaſt quan-
trties had been ſent in belonging to other perſons: and all fold at a very high
price, under an idea they were his. The conſequence was, moſt of the
buyers were taken in.
“ Therefore, upon full confideration, I am of opinion, that a bidding for
the owner, in the manner contended for, and agreeable to the directions given
in this cafe, would have been a fraud upon the ſale: and conſequently that
this action againft the defendant, as auctioneer, cannot be maintained.”
1
In Eafter term, 1796, this determination was recognized by
ford chief juſtice Kenyon, in the caſe of Howard and Caſtle, which
was an action brought to recover the difference between a firſt and
a ſecond ſale at an auction, wherein the very able ſucceſſor paid
the following tribute of reſpect to his illuftrious predeceſſor, as he
has frequently been pleaſed to define him.
It was
«. The caſe of Howard and Caſtle is ſimilar to that of Bexwell and Chriſtie,
where lord Mansfield exhauſted the fubject, and had decided it on the no-
Bleſt of all principles-to preſerve honeſty between man and man.
happy for the public that, by the latter caſe, lord Mansfield's capacious
mind had, quaſhed a great ſyſtem of fraud, by the precedent he had made,
and which his fucceffor was very happy to follow.”
* Mr. Bradſhaw
1
The
WILLIAM EARL OF MANSFIELD.
39.9
The ſound conſtruction of words in a deed is to effectuate the
intention of parties, and not to counteract or deſtroy their real
meaning.
!
Pugh et Ux. againſt the Duke of Leeds.
Godolphin Edwards, under a power reſerved in his mar-
riage-ſettlement, to leaſe for twenty-one years in poleffion ; but
not in reverfion ; grants a leaſe to his only daughter for twenty-
one years, to commence from the day of the date_adjudged a good
Jeaſe. The word "from" may mean either inclufive or excluſive,
according to the context and fubje£t-matter ; and the court will
conſtrue it ſo as to effe Etuate the deeds of parties, and not deſtroy
them.
The juriſprudent will, in the following argumentative-ſpeech,
have the pleaſure of finding the diapprobation of the lord chief
juſtice very pointed and ſtrong againſt the practice of entangling
property in nets of form.
Lord Mansfield. “ The caſes that have been determined here, went very .
much againſt my opinion, and that of the court. They were determined
upon the authority of the counteſs of Portland's caſe, in the Exchequer, fup-
pofing the point to have been ſettled by that determination. But I have
ſince had occaſion to re-confider the queſtion. I think the ground upon
which it went, and the caſes there cited, have been miſtaken. It is
that a folemn judgement ſhould be given upon a point that has been fo mucha
confounded." The court ordered it to ſtand over.
Nov. 28, 1777. Afterwards, on this day, being the laſt day of the
term, lord Mansfield delivered the opinion of the court as follows :
“ This caſe was an iſſue to try, whether a leaſe made by one Godolphin
Edwards, bearing date the roth of October, 1765, was a good or a bad
leaſe. The caſe went down to a trial, and ſeveral objections were raiſed; but
they were all given up except one, which was this, that the leaſe was made
for twenty-one years, to commence from the day of the date.' It ariſes on a
5
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7
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THE LIFE OF .
1
marriage-ſettlement in the year 1724, by which a power is reſerved to Godol-
phin Edwards to make leaſes, with many reſtrictions and qualifications; and
amongſt the reſt the following, that they were not to be in reverſion, re.
mainder, or expectancy.' And therefore the queſtion is, 'Whether this be
a leaſe in poffeffion?' And it turns upon this, Whether to coinmence from the
day of the date in this deed is to be conſtrued incluſive or excluſive of the day
it bears date? I will firſt conſider it as ſuppofing this a new queſtion, and
that there never had exiſted any litigation concerning it. In that light the
whole will turn upon a point of conſtruction of the particle from.' The
power requires no preciſe form to deſcribe the commencement of the leaſe,
the law requires no technical form. All that is required, is only enouglr to
Thew, that it is a leafe in poſſeſſion, and not in reverſion ; and therefore if
the words uſed are ſufficient for that purpoſe, the leaſe will be a good and
valid leaſe.
“ In grammatical ſtrictneſs, and in the niceſt propriety of ſpeech that the
Engliſh language admits of; the fenfe of the word “ from' inuſt always depend
upon the context and ſubject-matter, whether it ſhall be conſtrued incluſive
ar-excluſive of the tenninus a quo : and whilſt the gentlemen of the bar were
arguing this cafe, a hundred inſtances and more occurred to me, both in
verſe and profe, where it is uſed both incluſively and excluſively. If the
parties in the preſent caſe had added the word incluſive' or ' excluſive,' the
matter would have been very clear. If they had ſaid, “from the day of the
date incluſive,' the term would have commenced immediately ; if they had
faid · from the day of the date excluſive, it would have commenced the next
day.
But let us fee whether the context and ſubject-matter in this caſe do not
Thew, that the conſtruction here ſhould be incluſive, as demonſtrably as if
the word incluſive had been added. This is a leaſe under a power, the leaſe
refers to the power, and the power requires that the leaſe ſhould be a
leaſe in poſeſion. The validity of it depends upon its being in poffeffion,
and it is made as a provifion for an only daughter. He muſt therefore intend
to make a good leaſe. The expreſſion then, compared with the circumſtances,
is as ſtrong in reſpect of what his intention was, as if he had ſaid in expreſs
words, “I mean it as a leaſe in poſſeſſion, I mean it ſhall be ſo conſtrued ;
if
1
1
1
WILLIAM: EARL OF MANSFIELD..
401
If it is ſo conſtrued, the word “fron’ muſt be incluſive. This conſtruction
is to ſupport the deeds of parties, to give effect to their intention, and to
protect property. The other is a ſubtlety, to overturn property, and to de-
feat the intention of parties, without anſwering any one good end or purpoſe
whatſoever. And though Courts of Juſtice are fometimes' obliged to decide
againſt the convenience, and even againſt the feetning right, of private per-
fons, yet it is always in favour of ſome great public benefit. But here to
conſtrue. - from the day of the date to be exclufive, can only be to defeat
the intention of the parties. If ſuch a conſtruction were right, it would
hold good, ſuppoſing the leſſee had laid out ever ſo inuch money upon the
eſtate ; and all would be alike defeated by a mere blunder of the attorney
or his clerk. Therefore, if the caſe ſtood clear of every queſtion or deciſion
which has existed, it could rot bear a moment's argument. Secondly, I
will conſider this queſtion upon the authorities. I have arranged all the
caſes that have been determined in Weſtminſter Hall, in order of time;
and, when I come to ſtate them, you will be ſurprized to ſee they ſtand ſo
little in the way, as binding authorities, againſt juſtice, reaſon, and comınon
ſenſe. All they ſhew is, the great uncertainty of the meaning, and the im-
poffibility of putting an abſolute ſenſe to hold good in caſes; they are them-
felives ſo many contradictions backwards and forwards."
Although a minute enumeration is avoided of all the caſes on
this ſubject which had been determined in the courſe of ſeveral
centuries, and which the juriſprudent: will find in Mr. Douglas's
Reports, 718. to 722 both incluſive ; yet the laſt of theſe caſes
is too important to be paſſed over.
" In 1743 there happened a caſe of great litigation in the Exchequer,
which aroſe thus. Lord Pembroke had got a leaſe from the crown of a ſpot
of ground in Privy Garden, and had built a houſe upon it at a great expence.
The counteſs of Portland had alſo a leaſe of an adjoining ſpot, and had built
her houſe next to lord Pembroke’s. There was another houſe belonging to
the ducheſs of Portland adjoining lady Portland's; all three held under the
crown. Between the three houſes and the River Thames, there was a ter-
race, which had been part of the queen's garden. Neither of them thought
of applying for the terrace'; and it would have been thought invidious to
Fff
have
--
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THE LIFE OF
have done ſo. It was to be in coinmon. Upon the circumſtance of this
terrace, lord Pembroke laid out a conſiderable ſum of money upon his
houſe. At the expiration, however, of her leaſe, the counteſs of Portland
applied to renew ;' a new leaſe of fifty years was granted, in which, with-
out notice to lord Pembroke, ſhe got the terrace inſerted and added.
When lord Pembroke heard of it, he was much offended, but ſtill more ſo
at the uſe that was made of it; for, the counteſs planted trees, which, if they
had grown up, would have intercepted lord Pembroke's view ; however, ſome
fatality attended them, for they all died after a certain time. Lord Pem-
broke wanted to avoid this leaſe ; not to take away lady Portland's houſe,
but to get back the terrace, and leave it in the ſtate it was before. Appli-
cation was accordingly made to the officers of the crown about it; and at
laſt the attorney-general was directed to file an information for the terrace;
and an information was accordingly filed in the Exchequer. A variety of
objections were made to different flaws, ſuppoſed in the leaſe; but the prin-
cipal objection was found upon the Civil-lift act, 1 Anne, ſt. 1. c.7. which
directs, that all leaſes to be granted of any of the crown-lands ſhall be yoid,
. unleſs made to commence from the date or making. This leaſe was made
to commence from the day of the date or making.' Upon this it was argued
for the crown, that the date and the day of the making were incluſive; and
that the act of parliament had expreſsly declared the leaſe Tould be in thoſe
terms; but that from the day of the date was excluſive, and therefore the leaſe
was void for the variance.' On the part of the counteſs it was contended,
that from the date,' and from the day of the date,' were both the ſame.
Upon the argument, all the caſes were cited that have been now cited, ex-
cept the two I have mentioned. Sir Thoinas Parker, and Mr. Baron Rey-
nolds, were of opinion, with the objection, that it was a void leaſe becauſe
it commenced in futuro. The two other barons were of a different opinion
upon this point; but, upon another point, they were of opinion the leaſe
was void. Sir Thomas Parker, and Mr. Baron Reynolds, to the contrary';
ſo that, for different reaſons, they were all of opinion the leaſe was void.
Upon a caſe, which happened in this court * ſince, this caſe between lord
Pembroke and the counteſs of Portland was mentioned. Upon memory, as
* Doe ex Dem. Baynton verſus Watton, Cowp. 189.
the
WILLIAM EARL OF MANSFIELD.
403
the judgement appeared to me in ſo unfavourable a light, I took it for
granted that the court had been as it were compelled by the weight and
force of authorities. But now I will tell you why I change my opinion,
after having determined the caſe of Doe verſus Watton as I then did, out of
a great veneration for Sir Thomas Parker, and becauſe I did not care to ſet
up an opinion of my own againſt a ſolemn judgement. Sir Thomas Parker
intending to favour the world with the publication of ſome caſes that were
adjudged in his time, he did me the honor to deſire I would peruſe thein.
I have done ſo; and reading a very elaborate report of the counteſs of Port-
land's caſe, it brought back to me in a regular view the whole doctrine
upon the preſent ſubject. There I ſaw how the authorities ſtood; and I
likewiſe found another thing mentioned in that caſe, which ſeems to me not
to have been properly argued at the bar by the counſel in ſupport of the
leaſe. It is this: the parties concerned had ſearched all the leaſes from the
time of the Civil-liſt Act down to the moment of that upon which the
queſtion was then in agitation ; and they were nearly half the one way and
half the other; eighty were granted from the date or making,' and above
ſeventy from the day of the date of making. All theſe leaſes had paſſed
the great ſeal, and likewiſe the ſeal of the Exchequer. The argument drawn
from this circumſtance was, that uſage ſhould get the better and prevail
over the act of parliament, which was in fact an admiſſion at the ſame time
by implication, that ' from the day of the date' was contrary to the act. It
ſtruck me in a different light, which is, that the queſtion turned upon the
conſtruction of the Engliſh words, and what ſenſe they bore. If I was
right, nothing can be ſo ſtrong as that all the officers of the crown, who
had been corncerned in making theſe leafes, looked upon the words as ſyn-
onyinous, and ſuffered them to paſs and repaſs unnoticed. It is demon-
ſtration, that, by uſing both indifferently, they underſtood them to be both the
ſame thing.
" I mentioned this to Sir Thomas Parker, and found my opinion ſup-
ported by Sir Eardley Wilmot. Sir Thomas Parker, with that candour
which always accompanies great abilities, gave ſo far way to it, that he had
doubts upon the determination. He therefore ſuppreſſed the report of the
attorney-general verſus the counteſs of Portland.; and I would not have pre-
duced it upon this occaſion, but that he has given me leave to mention his
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404
THE LIFE OF
name as approving of the preſent determination. This relieves me from the
difficulty I- ſhould have had in differing from his authority.
" To conclude : the ground of the opinion and judgement which I now
deliver is, that " from' may in the vulgar uſe, and even in the ſtricteſt
propriety of language, mean either incluſive or excluſive. That the parties
neceſſarily underſtood and uſed it in that fenfe which made their deed ef-
fectual. That the courts of juſtice are to conſtrue the words of parties fo
as to effectuate their deeds, and not to deſtroy them ;: more eſpecially
where the words themſelves abſtractedly may admit of either meaning.
6. If there was nothing more in queſtion than that all the law-officers
concerned had, in the above-mentioned cafes, conſidered the two ex-.
preſſions as ſynonymous, that would be ſufficient to guide my opinion ;-
therefore let there be judgement for the plaintiff.
“ I ſhould ſay farther, that inſtantly, upon what paſſed between Sir Tho.
mas Parker and myſelf, I acquainted fome of the counſel at the bar that
· there was a change of opinion, as to the authority of the caſe in the. Ex-
chequer."
1779
Upon an application to the Legiſlature, at this period of tiine,
for a Divorce-bill; a noble lord very converſant in pedigrees,
and attentive to claims of pêerage, took notice, that the lady
whoſe miſconduct and incontinency gave riſe to the bill, was in
the title of the bill, and not only in limine, but alſo in the bill
throughout, deſcribed baroneſs Conyers, without having ſtrictly
complied with the ſtanding order of the houſe reſpecting the
claim of peerage. This ſtanding order is ſuppoſed to have been
made ſome years ago, on the motion of the late earl of Egmont,
and to have been introduced by a very learned, eloquent, and ela-
borate diſquiſition of the dignity of the Britith peerage, and the
great propriety, wiſdom, and neceſſity, of ſtrict attention, to
the obſervance of rule and order in all future diſcuſſion, in the
Houſe of Lords, of claims to any branch of the peerage.
The
::
WILLIAM EARL OF MANSFIELD.
405
1
:
The previous proofs and ceremonies required by the above-
mentioned ſtanding order, prompted and compelled the noble
peer, however reluctantly, to oppoſe the uſual proceedings in
the farther progreſs of the bill, until the proofs required by that
order were regularly made, or rendered unneceſſary to be made,
by an alteration in the bill of the ſtyle and title of the lady:
:. A long and learned debate took place. The law-lords in ſuc-
ceffion endeavoured to convince the noble: earl who made the ob-
jection of the ſolid diſtinction between an actual claim of peer--
age, and the ſtyle and"title barely affumed by the lady in the
preſent bill. The earl of Mansfield himſelf, even with his uſual
diſplay of eloquence, failed in his repeated efforts to induce the
noble lord who objected to the progreſs of the bill to wave his :
objection.
At this period, and in this painful ſuſpenſion, the venerable
father (of the noble marquis), who was greatly advanced in
years, and much indiſpoſed, had, in addition to theſe infirmities,
the preſſure of a diſturbed mind, in hearing from day to day,
that his fon's bill met with an unexpected oppoſition, reſpecting
the forms and ſtanding orders of the houfe:
Towards the cloſe of the third day, a noble lord who had many
years preſided in committees on private bills, did the author of:
theſe ſheets the honor to come down to the bar, and lament that
nothing could be hit off, by the counfel for the bill, to take off
the noble lord's objection. A fair occaſion this, for the Author,
who had the honor of ſettling the bill as counſel for the mar-
quis, to ſuggeſt, that in Lord Clarendon's Hiſtory, the famous, or
rather infamous, lady. Roos is thus recorded--that, in a bill in par-
liament, her injured huſband aſſumed the ſtyle and title of baron
Roos; which title not having been then regularly eſtabliſhed,
proviſion was deemed neceſſary to be made; and it was accord-
inglý provided and declared, that the ſame ſhould neither weaken
or deſtroy, nor in any degree ſtrengthen or confirm,. the claim
of
!
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406
THE LIFE OF
>
of the petitioner to the barony of Roos, but that ſuch claim
ſhould remain, as if no ſuch act had been made.
Pleaſed with any proſpect of ſucceſs, however diſtant or im-
probable, the ſimple tale was told to the earl of Mansfield, who
was pleaſed to ſend the aſſiſtant-clerk of the houſe again and
again to the author, to learn all the material circumſtances.
Few were neceſſary, in his lordſhip’s fertile and perſpicuous
mind, to enable him to form a clear, comprehenſive, and convin-
cing ſpeech.
He roſe, and calmly obſerved, ' how much their lordſhips were
indebted to the noble lord, for his unremitted attention, to pre-
ſerve in the greateſt purity every recognition of, and every claim
of title to, a British peerage. The great benefit which had flowed
from that perſeverance on the one hand, and from the praiſe-
worthy patience of the Houſe on the other, in the preſent buſi-
neſs, during a diſcuſſion of ſeveral days, would be obvious to all
who heard him, when, in addition to all that had been already
advanced by inany lords in the courſe of the debate, antient re-
cords and modern hiſtory had been reſorted to, and even ran-
ſacked, which he conceived could not fail to diffuſe a pleaſing
light over, and diſſipate every ſhadow of doubt which had en-
veloped, the preſent buſineſs. * Your lordſhips,' he farther ob-
ſerved, “all have a perfect recollection of lord Clarendon's anec-
dote of a famous lady Roos, who declared, “that, if ſhe thought
any child of hers had a drop of the blood of the Manners's in
its veins, ſhe would herſelf open the vein, and let it out.'
“ To turn our eyes from this high-ſpirited lady, and fix them
more uſefully on her injured huſband, who was ſtyled Lord Roos
in the bill then depending in parliament-we find that, in an-
cient times, lords of order have ever been attentive to preſerve
the purity of the claim of an antient barony, or of any higher
line in the peerage. The wiſdom of thoſe lords of order gave
birth to a faving clauſe, which he who runs may read :
6 Pro-
2
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WILLIAM EARL OF MANSFIELD.
407
1
1
“ Provided always, and it is hereby enacted and declared, that nothing in
this act contained ſhall extend or be deemed to extend, either to eſtabliſh
and confirm, or to prejudice or defeat, the right, title, or claim of the ſaid
or his heirs, of, or to, the barony of Roos, or any pri-
vilege or precedence in reſpect thereof."
No ſooner had this conciſe wonder-working clauſe been read,
than the Earl of Mansfield emphatically obſerved, 'that he had
ſo high an opinion of the candor and abilities of the noble lord,
who had not only made, but who had very laudably perſevered
in, his objection, as to be fully perſuaded, that the motion which
he ſhould immediately have the honor to make would be highly
approved of; and would, poſſibly, be ſeconded by the noble
peer himſelf.
The motion of courſe was, that a ſimilar clauſe ſhould be in--
troduced into the bill, then depending, that it ſhould neither
eſtabliſh and confirm, nor prejudice or defeat, the right, title, or
claim, of the ſaid lady Amelia Darcy, or her heirs, of or to the
barony of Conyers, or any privilege or precedence in reſpect
thereof.'
The noble lord who oppoſed the progreſs of the bill very can-
didly admitted, that the caſes were ſo appoſite, as to-recommend
the motion very forcibly, and that the moſt pleaſing proof he
could give of his entire approbation was, to adopt the advice of
the great law-lord, and ſecond the motion ; which being done,
the bill travelled quietly through the Houſe, and paſſed into a:
law..
1780.
3
-408
THE LIFE OF
1
1780.
f
t
We now approach to a period which produces an event dif-
graceful to the age and country in which the fact was com-
mitted.
An union of folly, enthuſiaſın, and knavery, had excited
alarms in the minds of ſome weak people, that encouragements
were given to the profeſſors of the Catholic faith, inconſiſtent
with the Proteſtant religion and true policy.
· The act of parliament which excited this clamour had paſſed
with little oppoſition through both Houſes, and had not received
any extraordinary ſupport from lord Mansfield. But the minds
of the public were enflamed by artful repreſentations, and the
rage of deluded mobs was directed againſt the moſt eminent
per-
fons in the kingdom.
Who could have thought that ſuch outrages would have dif-
graced ſo enlightened a period as 1780? Poſterity will ſcarcely
credit the audacious threatenings of this memorable year—a year
pregnant with miſchiefs, rapine, and riots, which were practiſed,
and perpetrated, not only in the ſhades of-night, where riot
and confuſion are generally hatched, and where theſe peſts of
ſociety love to dwell, but even in the very face of noon-day. A
year ever to be remembered with aſtoniſhment and horror. With
aſtoniſhment, when it is conſidered by what a ſmall number of
rioters, and by what pigmy-champions in general, houſes were
demoliſhed, contributions levied openly in the moſt public ſquares;
and the doors and gates of the ſtrongeſt priſons, Newgate itſelf
not excepted, opened wide to pour forth new forces well trained
and ready to enter upon the moſt deſperate ſervice *
1
* Fortunately for the public weal fome time was taken in theſe irregular
attacks; ſo that there was room for recollection and preparation againſt their
attempt on the great repoſitory of national wealth, the Bank of England.
With
WILLIAM EARL OF MANSFIELD.
409
2
With horror, as long as the many calamitous circumſtances are
recollected to which each day of riot gave birth; one of which,
not only Weſtminſter-Hall in general, but every intelligent rea-
der will ſeriouſly lamient, and which the author of theſe ſheets
muſt ab imo corde ever deplore ; from his knowlege of the invalu-
able loſs of books and manuſcripts which periſhed in the confla-
gration of the earl of Mansfield's houſe, and which would have
diffuſed a ſplendor over theſe pages, which cannot by any poſſi-
bility now be caft, elucidated, or ſupplied. The rich fruits of
many years fine harveſts were in a moment deſtroyed ; and nothing
but poor gleanings, in private ſtudies, are left for the labourer of
the preſent day.
This annus mirabilis, 1780, cannot fail to excite curioſity in
readers of every denomination. · A faithful detail of the ruinous
confuſion, which was happily put an end to in a very few days,
may,
when contraſted with the complete anarchy of late years,
pregnant with the moſt dreadful outrages, murders, and aſſaffi-
nations, in another country, not only ſtamp a degree of credibility
on the moſt extravagant, and ſeemingly incredible events of the
riots in London in 1780, but alſo fully evince this great truth-
that, from whatever cauſes riot and anarchy ſpring, the effects will
(if they are not ſeriouſly and timely prevented) be invariably the
ſame-will, like Pandora's box, diffuſe far and wide the evils of
deſolation, miſery, and ruin! But, as it is foreign to the purpoſe
of this publication to write or even attempt to portray a faint
ſketch of hiſtorical events, the author muſt beg permiſſion to
confine his obfervations on this memorable period to ſuch a
plain detail of facts as fell within his own knowledge on the one
hand, and as will throw light on ſuch tranſactions wherein the
earl of Mansfield was either in his private or judicial capacity
principally and perſonally intereſted.
I
I
>
Gögg
On
1
)
more
410
THE LIFE OF
On the evening of the ſecond day's riot, Sir John Hawkins, Mr.
Brookſbank, and another magiſtrate for the county of Middleſex,
diſcharged their duty as vigilant magiſtrates, by waiting on the
Iord chief juſtice of England at his houſe in Bloomſbury-ſquare.
They found his lordſhip in conference with his very reſpectable
and near neighbour the archbiſhop of York. Their painful em-
baſſy was, to announce that the avowed deſign of the rioters * that
evening was to deſtroy by fire the houſes of the lord chancellor,
and lord chief juſtice, and one or two more, which were marked,
and then well-known. The magiſtrates having made an humble
tender of their aſſiſtance and advice; the lord chief juſtice aſked
(as the author was credibly informed), what his grace the arch-
biſhop propoſed to do. The anſwer was worthy of a Briton: “ To
defend myſelf and my family in my own manſion, while I have
an arm to be raiſed in their defence.” The reply was, “ 'Tis nobly
ſaid ; but, while an archbiſhop, like a true church. militant, is
ſtrong enough to protect himſelf--a feebler man, and an old man
muſt look up to the civil power for protection.” This conceſſion
having been made, the magiſtrates took a fair occaſion to recom-
mend the admiſſion of a detachment of the guards into the houſe ;
but whether the noble owner thought their admiſſion might make
the enraged mob more deſperate, or that it would be more efficient
to keep the guards at a ſmall diſtance, in the veſtry-room of
Bloomſbury church, until they were really wanted, is not in the
power of the author to determine. The lord high chancellor
preferred the admiſſion of a ſerjeant's guard into his houſe in
Great Ormond-Street; and by the circuitous marches of this
fmal body of men from Ormond Street to the duke of. Bolton's,
and counter-marches from Bolton-houſe to Ormond-ſtreet, in a
.
* Strange to tell, they made no ſcruple of avowing fiom time to time who
were the victims, on whom they meant to wreak their. vengeance.
5
very
WILLIAM EARL OF MANSFIELD.
411
مد
very ſhort ſpace of time, the rioters had every reaſon to believe,
and one of them was heard to proclaim to his brethren, “ the
Chancellor's houſe is brim full of the guards ;” and emphatically
to exclaim, “ 'Tis d-d fooliſh to run our breaſts againſt bayo-
nets-d'ye ſee how they are ready to pink us at the parlour-win-
dows?” Theſe pithy exclamations, and the ſight of a few pcinted
bayonets, had a wonderful effect. And the captain of the com-
pany of guards, who was my author, told me with ſome humour,
that, as detachments of the guards were wanted in almoſt every
part of the metropolis, he thought it fair to play the old ſoldier,
and to multiply his handful of men in the beſt manner he was
able. A garden-door in the lord chancellor's houſe, which com-
municated with the fields, was very convenient for this purpoſe.
He placed three or four centinels at the parlour-windows, as has
been noticed ; and all the reſt, being uſhered through the garden
into the fields, wheel'd round by the duke of Bolton's houſe and
Queen’s-ſquare to Ormond-ſtreet again. But, ere they re-entered,
the few rioters then aſſembled heard the captain of the guard aſk
the corporal,
“When will the next detachment arrive?” The
anſwer was, “ Pleaſe your honor, in a trice—they are almoſt in
fight.” The corporal could ſpeak with greater preciſion, ſince
in fact the men had hardly been ever out of his fight--though
perfectly concealed by art, as if under the fable cloud of night;
from the rioters ; by one of whom, probably their captain, the
watch-word was given, * Let us decamp to the
** corner of
Bloomſbury.”
The fatal conſequence is too well known; and the irreparable
loſs of all lord Mansfield's books and manuſcripts, we repeat,
with ſorrow, is ever to be deplored.
In this inſtance we can only lament, that ſo great a lawyer and
ſtateſman was not, in this hour of imminent danger, fo great a
general as the then lord chancellor.
Gg.82
So
412
THE LIFE OF
So unexpected was this daring outrage on order and govern-
ment, that it burſt on lord Mansfield without his being prepared
in the ſlighteſt manner to reſiſt it. He eſcaped with his life only,
and retired to a place of ſafety, where he remained ſome time.
On the 14th day of June, the laſt day of term, he again took his
ſeat in the court of King's Bench. “ The reverential filence,"
ſays Mr. Douglas, 6s which was obſerved when his 'lordihip re-
ſumed his place on the Bench, was expreſſive of ſentiments of
condolence and reſpect, more affecting than the moſt eloquent ad-
dreſs the occaſion could have ſuggeſted.""
The amount of lord Mansfield's lofs which might have been
eſtimated, and was capable of a compenſation in money, is known
to have been very great. This he had a right to recover againſt
the hundred. Many others had taken that courſe ; but his lord-
ſhip thought it more conſiſtent with the dignity of his character,
not to reſort to the indemnification provided by the legiſlature:
.
His ſentiments on the ſubject of a reparation from the ſtate were
communicated to the board of works in a letter, dated 18th of
July, 1780, written in conſequence of an application which
they had made to him, as one of the principal ſufferers, purſuant:
to directions from the Treaſury, founded on a vote of the Houſe
of Commons:
“Beſides what is irreparable, my pecuniary loſs is great. I apprehended
no danger, and therefore took no precaution ; but, how great foever that loſs
may be, I think it does not become ine to claim or expect reparation from
the ſtate. I have made up my mind to my misfortune as I ought, with this
conſolation, that it came from thoſe whoſe object manifeſtly was general con-.
fuſion and deſtruction at home, in addition to a dangerous and complicated
war abroad. If I ſhould lay before you any account or computation of the
pecuniary damage I have ſuſtained, it might feem a claim, or expectation
of being indemnified. Therefore, you will have no farther trouble, uponi
this ſubject, from, &c.
MANSFIELD.
Biſhop
WILLIAM EARL OF MANSFIELD.
413
Biſhop Newton, in his own Life and Anecdotes, ſpeaking of the
diſtreſſes and miſeries brought upon his country in the Spring
1780, pointedly obſerves,
- That the fury of the mob was directed principally againſt thoſe who had
no hand in the bill, was diſcharged chiefly upon the friends of government, and
particularly upon the great and venerable diſpenſer of law and juſtice, who ,
was not even preſent at any reading of the bill, and, having himſelf injured no
man, concluded, in the integrity. of his heart, that no man would injure
him. As he reſembled the great Roman orator in ſeveral particulars, ſo in
this among others; for, Cicero's houſe was, in like manner, ſet on fire and
pulled down by the wicked faction of the profligate Clodius. It was really
wonderful, after ſuch a ſhock as he had received, that he could ſo foon re-
collect himſelf, and ſo far ſummon up his faculties, as to make one of the
fineſt and ableſt ſpeeches that ever was heard in parliament, to juſtify the
legality of the late proceedings on the part of government, to deinonſtrate
that no royal prerogative had been exerted, no martial law had been exer-
ciféd, nothing had been done but what every man, civil or military, had a
right to do in the like caſes, I ſpeak not from books,' ſaid he, for books
I have none,' having been all conſumed in the fire. The effects of his ſpeech.
were the admiration and conviction of all who heard him, and put an end to.
the debate without a diviſion. Lord. Mansfield never appeared greater in
any
action of his life."
9.
The great Ruler of the Univerſe can, however, educe good out
of evil.-Et, fi licet parva componere magnis--the following anec-
dote which had its birth, phenix-like, from the aſhes of the
riots, will probably be acceptable by way of note to the juriſ-.
prudent.
. Before the Reſtoration of good order, all the houſes in Ormond-Street,
and probably in many other ſtreets and ſquares, had ſome portion of the
guards billeted on them, as it were for their protection. The author, on that
occaſion, had the honor of receiving a meſſage from one high in power, com-
municated to him by the alert and much-beloved captain Strickland, after-
wards promoted to higher rank in his profeſſion, but now, alạs ! no more:
The purport of this meſſage was, to procure, if it was practicable, temporary
barracks,
2
1
.
414
THE LIFE OF
barracks or lodgings for the military in the colonades of the Foundling-Hof-
pital. Fortunately the application was made on a Wedneſday, the only day
in the week when the general committee meets; and it was more flattering
to the author to return a ſatisfactory anſwer, that the buſineſs was already
done, the fame thought having occurred to himſelf, and the application had
been followed with immediate orders for their reception.
On tliis occaſion, the then treaſurer of the hoſpital, Mr. Whatley, ever
attentive to the intereſts of the hoſpital, put the following queſtion :
“ Sir, as you have ſucceeded in your ſuit, pray tell me, whether two exe-
cutors, who want proof from our books of the death of a foundling-child,
and who have given your treaſurer much trouble, may not be brought to
give five guineas to the charity?"
The cauſe on which this important queſtion was put was ſimply this.
A diſciple, or, in plainer terms, an apprentice of the humorous Hogarth, who
had received a legacy of 1000l. Bank ſtock from his reputed father, deemed
it to be an act of diſtributive juſtice to tranſmit to an illegitimate child of
his, who had gained admiſſion into the Foundling-Hoſpital, the ſpecific
valuable legacy he had received-- Quod mihi dedit Apollo, &c. The real fact
was, that the child died in the life-time of the teſtator, without his know-
ledge; and there not being any reſiduary legatee in the will of Mr. Dawes,
his executors were adviſed, that they were entitled to the lapſed legacy, on
proof of the death of the child being eſtabliſhed in due form by the certificate of
the governors of the Foundling-Hoſpital. The executors perfifted in de-
manding the certificate ex debito juſtitiæ. The author, as a governor of the
charity, and as a lover of certainty, deſired to peruſe a copy of the will. He
foon diſcovered that the mother of the child had only a pittance of 51. a year
to keep her from ſtarving, and that the executors had each of them a legacy
for their pains and trouble. The teſtator himſelf, being illegitimate, could
not have any next of kin; and it occurred to the author, that the crown had
a better title to the 10001. Bank ſtock than the executors. Delays in matters
of claim, like many other delays, being very dangerous, a memorial to Lord
North, then the firſt Lord of the Treaſury, and alſo preſident of the Found-
ling-Hoſpital, was recommended, and inſtantly drawn up by the author to
the following effect.
..
< To
WILLIAM EARL OF MANSFIELD.
41:5
.
66
:
4
66 To the Right Honorable LORD NORTH, Firſt Lord Commiſſioner of his
Majeſty's Treaſury, and Preſident of the Foundling-Hoſpital.
. - The Memorial of the Governors of the ſaid Hoſpital,
66 Humbly ſheweth,
- That Mr. Dawes, who was himſelf illegitimate, left by his will 1000l.
Bank ſtock, to his illegitimate child, a foundling.
That, by the death of the child in the father's life-time, the legacy be-
came lapſed; and there not being any reſiduary legatee or nexť of kin, the
crown was conſidered to be well entitled to the Bank ſtock by eſcbeat.
“That the governors, who deplored the great loſs they had ſuſtained in
the fall of ſtocks in conſequence of the American war, implored that his lord-
ſhip would be pleaſed to alleviate their lofs, remunerate the firſt informers,
and make them nominees, on the part of the crown, for the benefit of the
charity.”
The menorial, though adjudged to be rather laconic, and not a little
ſarcaſtic in the alluſion to the American war, was received with that good
humour and pleaſantry which ever diſtinguiſhed the noble lord then at the
head of the Treaſury. But the executors were not on their parts inactive,
and, previous to the nomineeſhip being perfected, they had not only inſtituted
a fuit by Mandamus to compel the Bank-directors to transfer to them the.
ftock, but had alſo engaged the celebrated Mr. Dunning and other. able
counſel in their cauſe. The very able and ingenious leading counſel, on the
hearing in the Court of King's Bench, where lord Mansfield preſided; en-
tertained the court by ſaying, he was inſtructed to bring forward this cuir
rious and ſtrange doctrine, which had been advanced: by ſome wiſe governors
of the Foundling-Hoſpital, that a man could not diſpoſe by will of his
perſonal eſtate becauſe he was illegitimate.' The gravity of the bench re-
laxed into a ſmile; and the bar hoped to be gratified, and farther enter-
tained, with the names, and at the expence, of thoſe wiſe governors..
Be this as it may.-The Chief Juſtice clearly ſaw that the caſe was witti-
ly, if not wickedly miſtated ; and his lordſhip had too much wiſdom, pene-
tration, and ſound judgement, to grant the. Mandamus. The next effort of
the executors, by the able advice of their counſel, was to bring a ſpecial
action of aſſumphit, againſt the Governor and company of the Bank *. It fell.
:
* Vide. Doug: Rep. 508...
to
416
THE LIFE OF.
to the lot of the earl of Mansfield to try this action at Guildhall. Previous
thereto the author had the honor of a conference with the Chief Juſtice and
one of the judges of his court. In this difficult caſe, new in ſpecie, and lit-
tle light thrown upon it in any law-book, whether perſonal eſtate will eſcheat
to the crown, -on this occaſion the noble earl was pleaſed to ſay, he was
poffeffed of a manuſcript caſe in point; but that, with ten thouſand others,
were deſtroyed by the rioters, and he much doubted whether the bar could
ſupply the loſs. His lordſhip then put this cloſe queſtion to the author
* Have you found in the printed books a ſingle caſe to guide our jndgement
one way or the other?' The plain anſwer was, “I liad carefully ſearched,
but could find none; except a dictum of his lordſhip's, in the MS. note I
had fortunately in my poſſeſſion of the caſe of Burgeſs and Wheat ; and on
the accuracy of that note I had the greateſt reliance, becauſe a friend of fir
Thomas Clarke had very obligingly intruſted me with the original argument
in the hand-writing of the Maſter of the Rolls, to examine and collate with
my own copy ; and of the correctneſs of the note of the Lord Chief Juſtice's
argument no one could be ſo perfect a judge as his lordſhip, whoſe words
were, ' In perfonal eſtates, which are allodial by law, the King is laſt beir wliere
no kin, and the king is as well intitled to that as to any other perſonal eſtate.'
I therefore flattered myſelf, it would be fair to argue the point, on princi-
ples of analogy to the crown's right to real eſtates by eſcheat.
It was not a little flattering, to a private individual, to be aſſured by fuck
high authority that this was the right plan, and to be encouraged to perſe-
vere, although a laugh had been raiſed on the former trial unfairly, at the
expence of the Governors of the Foundling-Hoſpital. The ſimple fact was,
that the teſtator had not diſpoſed of the Bank ſtock in the event of the child's
death. No man in his ſenſes could diſpute his right, illegitimate as he was,
to make ſuch contingent diſpoſition.
“When the cauſe aſſumed a new ſhape, Proteus-like, on the trial at Guild-
hall, the Chief Juſtice with much pleaſantry aſked Mr. Dunning, what he
thought of his new adverſaries the Foundling-Hoſpital governors riſing up
cloathed and armed cap-à-pié with the 'nomineeſhip of the crown? The
candid and ingenious anſwer was, My Lord, this Foundling-cauſe now ap-
pears in a coat of another colour, and I muſt be allowed to do the beſt I can
for the poor executors, my poor clients.' Mr. Dunning's clients were foiled
and difappointed a fecond time; yet they put a good face on their bad cauſe,
and threatened to appeal to the Houſe of Lords againſt the laſt verdict. Mr.
Wallace, the late Attorney General, was the leading counſel for the Hofpi-
*
i
tal,
WILLIAM EARL OF MANSFIELD.
417
---
tal, and as ſuch very ably oppoſed Mr. Dunning. And although the greateſt
part of the bone of contention, the 1000l. Bank ſtock, would inevitably in
the courſe of an expenſive appeal have been well picked by the law, yet, in
honour to the memories of theſe two great lawyers, Mr. Dunning adviſed;
and Mr. Wallace feriouſly requeſted, the author of theſe ſheets to promote
the following compromize ; that the Foundling-Hoſpital ſhould re-
ceive 500l. clear and all their coſts, and that the poor executors might be
permitted to divide the reſidue.' One objection only to this ſelf-denying
propoſition occurred to the author, which he ſtated to Mr. Wallace :
. You have not once thought of the poor mother of the Foundling-child,
who is probably now ſtarving on the pittance of 51. a year; and without
whom the bone of contention would never have been the ſubject of this con-
ſultation, Give the poor mother 500l. an equal ſhare with the hoſpital ; and
let Mr. Dunning's clients, the poor executors, take in God's name the ſur-
plus; a ſurplus certainly not leſs than 5ool. This divifion accordingly took
place, and thus ſome unexpected good ſprang out of evil. The author of
theſe ſheets has the pleaſure to add that the moot point of an efcheat of per-
Sanal eſtate has fince been judicially ſettled by the late Lord Chancellor
Thurlow, in the cauſe of Middleton and Spicer, reported in Brown, page
His lordſhip very pointedly obſerved, that it would be mere pedantry
to run over all the caſes to be met with on this ſubject, which are collected
and fully ſtated in Burgeſs and Wheat, 1 Blackſtone, 123. His lordſhip
farther added, in proof of the ſimilarity between the caſe then before him,
and the Foundling-Hoſpital caſe: “The executors having legacies bequeathed,
and being clearly truſtees, cannot by any poſſibility take any beneficial in-
tereſt. The executors being excluded, and no relations to be found, I con-
fider the executors as much truſtees for the crown, as they would have been
for
any of the next of kin, if theſe could have been diſcovered." His lord-
ſhip therefore decreed in favor of the crown.
201.
Doe Leſlee of Fonnereau and Fonnereau *.
In what inſtances an eſtate for life by one inſtrument will
unite with an eſtate-tail by a different inſtrument, ſo as to give
* Dug. 470.
Hhh
är
418
THE LIFE OF
!
an eſtate of inheritance to the firſt taker, on the one hand; or
will not unite, and thereby preclude him, on the other, from de-
feating the eſtates in remainder.
November 22, 1780. An eſtate to A. for life in a deed, and a
limitation of the fame eſtate to the heirs of the body of A. in a
will (though the eſtate by the deed was voluntary, and moved
from the teſtator, and is recited in the will) do not unite fo as
to give A. an eſtate tail, hut the heirs of the body take by pur-
chaſe. A deviſe of a real eſtate to B, after one to the heir male
of the body of A, from and after the deceaſe of A, and limited
on default of ſuch iſſue, is a good executory deviſe, veſting ei-
ther in poſeſion on the death of A, without leaving iſſue-male, or
as a remainder after an eſtate-tail, on his death leaving iſſue-male.
The caſe was argued in Trinity Term 19 George III. by Rooke
for the plaintiff, and Wilſon for the defendant; and again in
Hilary Term 20 George III. by Hill, ferjeant, for the plain-
tiff, and Dunning for the defendant; and in Eaſter Term fol-
lowing, lord Mansfield delivered the opinion of the court in
favor of the defendant. A few days afterwards, however, his
lordſhip directed that the judgement ſhould be ſtopped, and the
caſe argued again in the enſuing term; accordingly there was a
third argument in Trinity Term, 20 George III, by the Solicitor-
general for the plaintiff, and Groſe, ferjeant, for the defendant;
after which the caſe ſtood over for this day, when judgement was
given for the plaintiff.
After the ſecond argument, lord Mansfield ſaid, There was no
doubt what the intention was; the only queſtion was, if that in-
tention could be fulfilled conſiſtently with the rules of law. He
deſired the counſel would ſee if they could find any caſes, beſides
that of Baldwin verſus Karver, where a double contingency had
been implied in a caſe of real eſtate. As to Baldwin verſus Kar-
ver, he thought the deciſion had not gone upon that point, and
he
!
WILLIAM EARL OF 419
OF
MANSFIELD.
4
he had always confidered it as the ſettled doctrine fince the café
of Firth verſus Chapman that a double contingency may be im-
plied as to perſonalty, but not as to real property.”
A few days afterwards his lordihip ſaid, 66 He had directed the
certificate of the court, in Baldwin verſus Karvar, to be ſearched
for, and copied.” He then read it, and it thereby appeared, that,
although the court had ſuſpended their opinion, and given the
heir at law and perſonal repreſentative leave to be heard by their
counſel againſt the validity of the deviſe to the grandchildren,
they did not inſtruct counſel to object to it; and therefore the
court avoided the queſtion, and only gave their opinion on the
point between the different grandchildren, on the ſuppoſition
that the deviſe over was good.
On Friday the 14th of April, 1980, his lordfhip having aſked
Hill, ferjeant, whether he had been able to find any caſe of real
property where the court, on the words “ in default of ſuch
ifue" had implied a reſtriction to “illue living at the death of the
father," or, where a double contingency had been implied, viz.
to the iſſue, if there should be any, and if none, to the deviſe over;
he faid, he had not met with any; and thereupon his lordſhip de-
livered the opinion of the court to the following effect :
Lord Mansfield (having ſtated the ſpecial verdict). “The cafe then lies
in a very narrow compaſs. If the eldeſt ſon was tenant in tail, the recovery
was good, and barred the limitations over; or, if the limitations over were
too remote, he was entitled as heir at law. As to his being tenant in tail, a
conſiderable objection has been made, viz. that he was tenant for life under
the ſettlement, not under the will; and ſeveral authorities have been cited,
to prove that the previous and ſubſequent eſtates, when limited by differ-
ent conveyances, cannot unite. But, if they did not unite in this caſe, when
the firſt limitation in the will was an executory deviſe, which remained con-
ringent till the death of Thomas, and the eſtate given to the ſecond fon
was alſo executory, and being after an indefinite failure of iſſue was too re-
Hhh 2
1
mote;
420
THE LIFE OF
mote; tħerefore, quacunque via data, the deviſe by Thomas, under which the
defendant claims, was good.'
5
+
On Tueſday the 18th of April, 1780, his lordſhip ſaid, the
court had decided that the deviſe to the ſecond ſon was void, on
the authority of the caſe of Goodman verſus Goodright, as re-
ported by Sir James Burrow; but that they had ſince ſeen a ma-
nuſcript note of that caſe, taken by Mr. Kenyon, which affigneď
a ground for the determination different from that ſtated by Sir
James Burrow. That the court, upon this, entertained confi-
derable doubts concerning the opinion delivered a few days be-
fore, and deſired to have the caſe argued again.
This day his lordſhip delivered the ultimate opinion of the
court, as follows:
Lord Mansfield. “After the ſecond argument, and upon confideration
of the caſe, we were of opinion, and gave judgement accordingly, that ei-
ther Thomas was tenant in-tail, by connecting his eſtate for life in the deed,
with the limitation in the will to his heirs male (without ſaying it was our
opinion 'thať they could unite); or that the limitation over was too remote,
as being after an indefinite failure of iſſue; and we could find no caſe where
the court, in a will of real property, had raiſed an implication to confine
the failure of iſſue to the life of the anceſtor. But afterwards, turning the
caſes on this ſubject in our minds, and conſidering the reaſons on which
they proceed, namely, to prevent perpetuities; we ſtopped the judgement;
and deſired the caſe might be again fpoken to. It has been argued a third
time, and we have changed our opinion, and ſhall give our reaſons. The
rule is unqueſtionable, that there cannot be an executory. deviſe after an in-
definite failure of iſſue ; but that is not the caſe here.. We all think, that
the eſtate for life being by one inſtrument, and the limitation in tail by
another, they cannot unite, and that the heirs male of. Thomas would have
taken by purchaſe. This is a ſettled point; and we lay it down as our clear
opinion. What are the limitations here ? They are to the heirs male of the
body of Thomas, and in default of ſuch iſſue to the ſecond and other ſons..
There are two ways, in form of law, in which this laſt limitation may take .
effects.
WILLIAM EARL OF MANSFIELD.
42*
---
effect 1. If Thomas dies, leaving iſſue-male, then the eſtate to the ſe-
cond ſon takes effect immediately, as a remainder expectant, which may
be barred by a recovery. 2. Suppoſe the other alternative (which really
Happened) that Thomas has no ſon, then it is an executory deviſe to the ſe-
cond .fon, if Thomas at his death leave no iſſue-male. This is within the
limits eſtabliſhed by law to prevent perpetuities. We have looked into the
caſes, to ſee how far this reaſoning upon principle can be fupported by au-
thorities; and we think there are three which go a great way. I. In Ste-
phens verſus Stephens, the court took a large ſtride of twenty-one years
after a life in being. The argument was, that this would not create a per-
petuity. Former caſes had ſaid, a limitation might be made to take effect
on the death of a perſon in ele, or the birth of a poſthumous child ; and
alienation was not reſtrained for any konger tiine in Stephens verſus Stephens ;
for, if a devife could hold to a poſthumous child, there could be no aliena-
tion till he ſhould attain the age of twenty-one. An obvious objection to
the alternative in this caſe is, that, if the limitation over is a remainder, ir
cannot be turned into an executory deviſe. That is true, if it ever veſt as a
remainder. But here it might, or might not, upon a contingency; and it
never did:
2. So in Hopkins verfus Hopkins, lord Talbot decided in ſup-
port of the intent, that'a limitation which in one event would have operated
as a remainder, but which event did not happen, ſhould operate as an
executory deviſe. This he did upon principle, without precedents; and a
great eſtate is now held under his determination. 3. Brownſword: verfus
Edwards in another ſtrong inſtance, where it was held that a. deviſe.may
operate. either way according to the event. Theſe are the authorities which
go along with the principles I have ſtated, and enable us to ſupport the in--
tention of the teſtator. As to that, there is no doubt that he meant to give
fucceffive eſtates in tail male."
Judgement for the plaintiff.
Goodright, lefſee of Hare, widow, againſt Cator and others.
Tivo points of real importance reſpecting real property having
been ſettled by the judgement given by the court of King's Bench
in this caſe, the juriſprudent is adviſed not to rely ſolely on the
deep learning diſcoverable throughout. lord Mansfield's ſpeech ;
buta
5.
422
THE LIFE OF
but to ſtudy the whole cafe attentively, as it is reported by Mr.
Douglas, 460.
An eſtate being conveyed by a marriage-ſettlement to truſtees,
to the uſe of the ſettlor for life, with remainders over, and with
a power to the ſettlor, with the conſent of the truſtees, to revoke
all the uſes in the ſettlement; and the ſettlor having granted an
eſtate for his own life in the ſettled eſtate, a revocation ſubſequent
thereto of all the uſes by him, with the conſent of the truſtees,
ſhali not affect the eſtate granted for his life-actual entry is not
neceſſary, to take advantage by ejectment of a clauſe in a leaſe to
re-enter for nonpayment of rent, it having been folemnly deter-
mined in the Common Pleas, while Willes chief juſtice preſided
in that court, that it is only neceſſary in the ſingle caſe of avoid-
ing a fine.
Lord Mansfield. “ The defendant in this cauſe has turned the leffor of the
plaintiff twice round upon former occaſions, by objections in point of form.
It would be very unfortunate, if he were to ſucceed a third time in a ſimilar
attempt. As to the ſecond point; was an actual entry neceſſary in this caſe ?
I have always taken the diſtinction to be, that where entry is neceſſary to
complete the landlord's title (as when a power to re-enter is reſerved to him in
caſe of non-payment of rent), there the confeſſion of leaſe, entry, and ouf-
ter, is ſufficient; but that, where it is requiſite in order to rebutt the defen-
dant's title, actual entry muſt be made. This is the caſe when a fine is to
be avoided. In the caſe of Dormer verfus Forteſcue, which was much
argued both here and in the Houſe of Lords, I find the counſel could not
ſtate another inſtance where aftual entry muſt be made. The clauſe of the
ſtatute of George the Second is very confuſed ; but I think it meant only to
provide a remedy in caſes of vacant poffeffion, although other matters are
thrown in. My preſent opinion is, that actual entry was not neceſſary in this
caſe. That, ſurely, could never be the intention of the parties, where the
right of re-entry is expreflly reſerved, if a quarter's rent ſhall be in arrear for
twenty-eight days. With regard to the firſt point, I cannot frame a doubt
upon it. Undoubtedly lord Bolingbroke had a right to do what he did. It
is a right which ariſes out of the nature of his eſtate. The queſtion is, whe-
ther
I
WILLIAM EARL OF MANSFIELD.
423
ther the ſame lord Bolingbroke, who has made this demiſe for a valuable
confideration, can be authorized to revoke it under any power in any ſettle-
ment; for, by the power, the revocation muſt be executed by him. There
is a groſs fraud attempted in this caſe, either upon Cator, or on Mrs. Hare.
If Cator did not know of the incumbrance, there was a fraud upon him. But
it is found, that he did know of it; and therefore the fraud was upon Mrs.
Hare. If the defendant's counſel can find any caſe of this fort, where actual
entry has been held neceſſary, let them mention it to the court.”
!
ވެ
This day lord Mansfield, delivered the ultimate opinion of
the court, as follows:
“ We have looked very particularly into the caſes for two hundred years
back; and we find a great deal of contrariety on the queſtion, whether an
actual entry is neceſſary in order to maintain an ejectment, on a clauſe of
re-entry, for non-payment of rent: but in the moſt diſtant period, the
better opinion has been, that it is not. This was lord Hale's opinion, and is
mentioned as ſuch, and as that of lord chief juſtice Scroggs, by lord Holt,
in the caſe of Little verſus Heaton. But we look upon it as having been
fully ſettled in 1703, by the opinion of all the judges upon deliberation and
conſideration of all the caſes, that actual entry is only neceſſary to avoid a
fine ; and ſo the practice has been ever ſince. The reaſon of the thing is
agreeable to the practice; for, it is abſurd to entangle men's rights in nets of
form without meaning: and an ejectment being a mere creature of the court,
framed for the purpoſe of bringing the right to an examination, an actual
entry can be of no ſervice. In the caſe of fines it is required by a poſitive
rule of law, and clearly neceſſary under the ſtatute of 4 Anne, cap. 16. I have
a ſtring of all the caſes on this ſubject, but it would be very unentertaining
and unneceſſary to ſtate them. Mr. Rous alſo contended, that a demand of
the rent' was neceſſary. There ſeemed to be ſome weight in that point, upon
the reaſon of the thing; and, on looking into the caſes, it appears to have a
foundation in authority. But here, by the expreſs terms of the leaſe, the
demand is diſpenſed with. The act of 4. George II. is very perplexed ; but
the meaning certainly only is, that, where there is no ſtipulation in the leaſe
for entry without demand, you may, notwithſtanding, enter without demand,
provided ſix months rent is in arrear, and there is not a ſufficient diſtreſs;
otherwiſe in ſuch caſes you muſt make a demand.”
Judgement for the plaintiff.
An
1
1
..
42$
THE LIFE OF
1
An apology may be deemed neceſſary for deferring the intro-
duction of Mr. Murray's maſterly performance in an early part
of his life to the year 1781. The following plain narrative is
therefore ſubmitted to the conſideration of the curious reader.
Lord Mansfield, like many other men of genius of a lively and
an active mind, was not very fond of reading or writing more
than was abſolutely neceſſary in the high lines of life in which he
inoved.
.
A celebrated reſcript of his, drawn up in the duke of New-
caſtle's adminiſtration, and preſerved to the world under the
title of “ The Duke of Newcaſtle's Letter, by his Majeſty's Order,
to Monſieur Michell, the King of Pruſſia's Secretary of the Em-
baffy, in anſwer to the Memorial, and other Papers, delivered by
Monſieur Michell to the Duke of Newcaſtle on the 23d of No-
vember and 13th December, 1752,” is the principal public pa-
per which remains; and which, as he frequently declared to his
friends, was entirely his own compoſition, although it bears the
fignature of two diſtinguiſhed civilians, and of his colleague in
office, as well as his own.
He who runs may read, and ſoon be fully evinced that the
younger Tully employed his talents, his ingenuity, and his in-
duſtry, in every ſplendid part of this anſwer, which contains a
complete inveſtigation and juſtification of the principles adhered
to by the court of admiralty in England in caſes of capture of the
ſhips and property of neutral powers in time of war.
The foundation and nature of the Prize Juriſdiction in the
court of admiralty having been explained and elucidated by lord
Mansfield in 1781, will be introduced, it is ſubmitted, with great
advantage, to the ſtudious reader, and with great propriety, im-
mediately after this conciſe and correct anſwer, which till very
lately, was nearly out of print.
The
WILLIAM EARL OF MANSFIELD
42.5
1
The Duke of Newcaſtle's Letter.
+
66 Sir,
Whitehall, Feb. 8, 1753.
- I loft no time in laying before the king the memorial which you
delivered to me on the 23d of November laſt, with the papers that accom-
panied it.
“ His majeſty found the contents of it ſo extraordinary, that he would
not return an anſwer to it, or take any reſolution upon it, till he had cauſed
both the memorial and the Expoſition des Motifs, &c. which you put into
my hands ſoon after by way of juſtification of what had paſſed at Berlin, to
be maturely conſidered; and till his majeſty ſhould thereby be enabled to
ſet the proceedings of the courts of admiralty here in their true light; to the
end, that his Pruffian majeſty, and the whole world, miglit be rightly in-
formed of the regularity of their conduct; in which they appear to have
followed the only method which has ever been practiſed by nations where
diſputes of this nature could happen; and ſtrictly to have conformed them-
ſelves to the law of nations, univerſally allowed to be the only rule, in ſuch
caſes, when there is nothing ſtipulated to the contrary by particular treaties
between the parties concerned. This examination, and the full knowlege of
the facts reſulting from it, will fhew ſo clearly the irregularity of the pro-
ceedings of thoſe perſons to whom this affair was referred at Berlin, that it
is not doubted, from his Pruſſian majeſty's juſtice and diſcernment, but that
he will be convinced thereof, and will revoke the detention of the ſums
aſſigned upon Sileſia; the payment of which his Pruſſian majeſty engaged
to the empreſs queen to take upon himſelf, and of which the reimburſe-
ment was an expreſs article in the treaties, by which the ceſſion of that
dutchy was made.
“ I therefore have the king's orders to ſend you the report made to his
majeſty upon the papers above mentioned by fir George Lee, judge of the
prerogative court; doctor Paul, his majeſty's advocate general in the courts
of civil law ; fir Dudley Ryder, and Mr. Murray, his majeſty's attorney and
ſolicitor general. This report is founded on the principles of the law of na-
tions, received and acknowleged by authorities of the greateſt weight in all
countries; ſo that his majeſty does not doubt but that it will have the effect
deſireci.
“ The points upon which this whole affair turns, and which are deci-
five, are,
lii
-
Firſt,
66
426
THE LIFE OF
« Firſt, that affairs of this kind are, and can be, congnizable only in the
courts belonging to that power where the ſeizure is made ; and, conſequently,
that the erecting foreign courts or juriſdictions elſewhere, to take cognizance
thereof, is contrary to the known practice of all nations in the like caſes;
and therefore a proceeding which none can admit.
“ Secondly, That thoſe courts which are generally ſtyled courts of admi-
ralty, and which include both the inferior courts and the courts of appeal,
always decide according to the univerſal law of nations only; except in thoſe
caſes where there are particular treaties between the powers concerned, which
have altered the difpofitions of the law of nations, or deviate from them.
Thirdly, That the deciſions in the caſes complained of appear, by the in-
cloſed. report, to have been made ſingly upon the rule preſcribed by the law
of nations; which rule 'is clearly eſtabliſhed by the conſtant practice of other
nations, and by the authority of the greateſt men.
Fourthly, That, in the caſe in queſtion, there cannot even be pre-
tended to be any treaty that has altered this rule, or by virtue of which the
parties could claim any privileges which the law of nations does not allow
them.
" Fifthly, That as, in the preſent caſe, no juſt grievance can be alleged,
nor the leaſt reaſon given for ſaying that juſtice has been denied when regu-
larly demanded ; and as, in moſt of the caſes complained of, it was the
complainants themſelves who neglected the only proper means of procuring
it; there cannot, conſequently, be any juſt cauſe or foundation for re-
priſals.
Sixthly, That even though repriſals might be juſtified by the known
and general rules of the law of nations, it appears by the report, and indeed
from confiderations which muſt oceur to every body, that ſums due to the
king's ſubjects by the empreſs queen, and aſſigned by her upon Sileſia, of
which fums his Pruſſian majeſty took upon himſelf the payment, both by the
treaty of Breſlau and by that of Dreſden, in conſideration of the ceſſion
of that country, and which, by virtue of that very ceſſion, ought to have
been fully and abſolutely diſcharged in the year 1745, that is to ſay, one
year before any of the facts complained of did happen, could not, either in :
juſtice or reaſon, or according to what is the conſtant practice between all,
the moſt reſpectable powers, be ſeized or ſtopped by way of repriſals.
« The
:
1
.
..
WILLIAM EARL OF MANSFIELD.
427
1
1
« The ſeveral facts which are particularly mentioned above are ſo clearly
ftated and proved in the incloſed report, that I ſhall not repeat the particu-
lar reaſons and authorities alleged in ſupport of them, and in juſtification of
the conduct and proceedings in queſtion. The king is perſuaded that theſe
reaſons will be ſufficient alſo to deterinine the judgement of all impartial peo-
ple in the preſent caſe.
“ It is material to obſerve upon this ſubject, that this debt on Sileſia was
contracted by the late emperor Charles the Sixth, who engaged not only to
fulfil the conditions expreſſed in the contract, but even to give the creditors
ſuch farther ſecurity as they might afterwards reaſonably aſk. This condi-
tion had been very ill performed by a transfer of the debt, which had put
it in the power of a third perſon to ſeize and confiſcate it.
“You will not be ſurprized, fir, that, in an affair which has fo. greatly
alarmed the whole nation, who are entitled to that protection which his ma-
jeſty cannot diſpenſe with himſelf from granting, the king has taken time to
have things examined to the bottom, and that his majeſty finds himſelf
obliged, by the facts, to adhere to the juſtice and legality of what has
been done in his courts, and not to admit the irregular proceedings which
have been carried on elſewhere.
" The late war furniſhed many inſtances which ought to have convinced
all Europe how ſcrupulouſly the courts here do juſtice upon ſuch occaſions.
They did not even avail themſelves of an open war to ſeize or detain the ef-
fects of the enemy, when it appeared that thoſe effects were taken wrong-
fully before the war. · This circumſtance muſt do honour to their proceed-
ings; and will, at the ſame time, thew, that it was as little néceſſary as
proper to have recourſe elſewhere to proceedings entirely new and unuſual.
" The king is fully perſuaded that what has paſſed at Berlin has been oc-
caſioned, ſingly, by the ill-grounded informations which his Pruffian ma-
jeſty has received of theſe affairs; and does not at all doubt but that, when
his Pruſſian majeſty ſhall ſee them in their true light, his natural diſpoſition
to juſtice and equity will induce him immediately to rectify the ſteps which
have been occaſioned by thoſe informations, and to complete the payment
of the debt charged on the dutchy of Sileſia, according to his engagements
for that purpoſe.
“I am, with much conſideration, Sir,
ro Your moſt obedient humble ſervant,
“ HOLLES NEW CASTLE.
Iii
" TO
4.28
THE LIFE OF
“To the King's moſt excellent Majeſty.
« May.it pleaſe your Majeſty,
- In obedience to your Majeſty's com-
mands, ſignified to us by his grace the duke of Newcaſtle, we have taken
the memorial, ſentence of the Fruffian commiſſioners, and liſts marked A.
and B. which were delivered to his grace by monſieur Michell, the Pruſſian
fecretary. here, on the 23d of November laſt ; and alſo the printed Expoſition
d's Motifs, &c. which was delivered to his grace the 13th of December laſt,
into our ſerious confideration; and we have directed the proper officer to
ſearch the regiſters of the court of admiralty, and inform us how the matter
appeared from the proceedings there, in relation to the caſes mentioned in
the ſaid liſts A. and B. which he has accordingly done.
“And your Majeſty having commanded us to report our opinion concern-
ing the nature and regularity of the proceedings under the Pruffian commif-
fion mentioned in the ſaid inemorial, and of the claim or demand pretended
to be founded thereupon, and how far the ſame are conſiſtent with, or con-
trary to, the law of nations, and any treaties ſubſiſting between your Ma-
jeſty and the king of Pruffia, the eſtabliſhed rules of admiralty juriſdiction,
and the laws of this kingdom;
“For the greater perſpicuity, we beg leave to ſubmit our thoughts upon
the whole matter in the following method:
“ iſt, To ſtate the clear eſtabliſhed principles of law.
2dly, To ſtate the fatet.
3dly, To apply the law to the fact.
“ 4thly, To obſerve upon the queſtions, rules, and reaſoning, alleged in
the ſaid memorial, ſentence of the Pruſſian commiſſioners, and Expoſition des
Motifs, which carry, appearances of objections to what we ſhall advance upon
the former. heads..
66
:
“ Firſt, as to the Law;
“ When two powers are at war, they have a riglit to make prizes of the
fhips, goods, and effects of each other, upon the high ſeas: whatever is the
property of the enemy may be acquired by capture at fea; but the property
of a friend cannot be taken, provided he obſerve his neutrality.
66 Hence
4
WILLIAM EARL OF MANSFIELD.
429
1
“ Hence the law of nations has eſtabliſhed,
“That the goods of an enemy on board the ſhip of a friend may be
taken.
- That the lawful goods of a friend on board the ſhip of an enemy ought
to be reſtored.
". That contraband goods going to the enemy, though the property of a
friend, may be taken as prize, becauſe fupplying the enemy with what ena-
bles him better to carry on the war is a departure from neutrality.
By the maritime law of nations univerſally and iinmemorially received,
there is an eſtabliſhed method of determination, whether the capture be, or
be not, lawful prize.
Before the ſhip or goods can be diſpoſed of by the captor, there muſt be
a regular judicial proceeding wherein both parties may be heard, and con-
demnation thereupon as prize in a court of admiralty, judging by the law
of nations and treaties.
“ The proper and regular court for theſe condemnations is the court of
that itate to whom the captor belongs.
“ The evidence to acquit or condemn, with or without coſts or damages,
muſt, in the firſt inſtance, come merely from the ſhip taken, viz. the pa-
pers on board, and the examination on oath of the maſter and other principal
officers ; for which purpoſe there are officers of admiralty in all the conſider
able fea-ports of every maritime power at war, to examine the captains and
other principal officers of every ſhip brought in as prize, upon general and
impartial interrogatories. If there. do not appear from thence ground to con-
demn as enemy's property, or contraband goods going to the enemy, there
muſt be an acquittal; unleſs from the aforeſaid evidence the property ſhall
appear ſo doubtful, that it is reaſonable to go into the farther proof
thereof.
“ A claim of fhips or goods muſt be ſupported by the cath-of ſomebody's.
at leaſt as to belief.
“ The law of nations requires good faith; therefore every thip muſt be:
provided with complete and genuine papers, and the maſter at leaſt ſhould
be privy to the truth of the tranſaction.
" To enforce theſe rules ; if there be falſe or colourable papers, if any."
papers be thrown overboard; if the maſter and officers examined' in prepara--
torio groſsly prevaricate, if proper ſhip’s papers are not on board, or if the maf-.
ter and crew cannot ſay whether the ſhip or cargo be the property of a friend
ON
430
THE LIFE OF
--
or enemy, the law of nations allows, according to the different degrees of
miſbehaviour or ſuſpicion ariſing from the fault of the ſhip taken, and other
circumſtances of the caſe, coſts to be paid, or not to be received, by the
claimant in caſe of acquittal and reſtitution. On the other hand, if a ſeizure
is made without probable cauſe, the captor is adjudged to pay coſts and da-
mages; for which purpoſe all privateers are obliged to give ſecurity for their
good behaviour ; and this is referred to, and expreſſly ftipulated, by many
treaties *.
ss Though, from the ſhip's papers, and the preparatory examinations, the
property do not ſufficiently appear to be neutral, the claimant is often in-
dulged with time to ſend over affidavits to ſupply that defect: if he will not
ſhew the property by ſufficient affidavits to be neutral, it is preſumed to be-
long to the enemy. Where the property appears from evidence not on board
the ſhip, the captor is juſtified in bringing lier in, and excuſed paying coſts,
becauſe he is not in fault; or, according to the circumſtances of the caſe,
may be juſtly entitled to receive his coſts.
- If the ſentence of the court of admiralty is thought to be erroneous,
there is in every maritime country a ſuperior court of review, conſiſting of
the moſt conſiderable perſons, to which the parties, who think themſelves
aggrieved, may appeal; and this ſuperior court judges by the fame rule
which governs the court of admiralty, viz. the law of nations, and the trea-
ties ſubfiſting with that neutral power whoſe ſubject is a party before
thein.
- If no appeal is offered, it is an acknowledgement of the juſtice of the
fentence by the parties themſelves, and concluſive.
- This manner of trial and adjudication is ſupported, alluded to, and en-
forced, by many treaties op
.
66 In
* Treaty between England and Holland, 17 Feb. 1668. Art. 13.--
Treaty 1 Dec. 1674. Art. 10.-Treaty between England and France at St.
Germains, 24th of February, 1677. Art. 10.-Treaty of Commerce at Ryf-
wick, Sept. 20, 1697, between France and Holland, Art. 30.-Treaty of
commerce at Utrecht, 31 March, 1713, between Great Britain and France,
. As appears with reſpect to courts of admiralty adjudging the prizes taken
by thoſe of their own nation, and with reſpect to the witneſſes to be exami-
ned in thoſe caſes, froin the following treaties : Treaty, between England and
Holland,
Art. 29.
WILLIAM EARL OF MANSFIELD.
431
« In this method all captures. at ſea were tried, during the laſt war, by
Great Britain, France, and Spain, and ſubmitted to by the neutral
powers.
In this method, by courts of admiralty acting according to the law of na-
tions and particular treaties, all captors at ſea have immemorially been judged
of in every country of Europe. · Any other method of trial would be mani-
feſtly unjuſt, abſurd, and impracticable.
6. Though the law of nations be the general rule, yet it may, by mutual
agreement between two powers, be varied or departed from; and, where there
is an alteration or exception introduced by particular treaties, that is the law
between the parties to the treaty; and the law of nations only governs ſo far
as it is not derogated from by the treaty.
“ Thus, by the law of nations, where two powers are at war, all thips are
liable to be ſtopped and examined to whom they belong, and whether they
are carrying contraband-goods to the enemy; but particular treaties have en-
joined a leſs degree of ſearch, on the faith of producing folemn paſſports and
formal evidences of property duly atteſted.
" Particular treaties too have inverted the rule of the law of nations, and
by agreement declared the goods of a friend on board the ſhip of an enemy
(
and 34
Holland, 17 Feb. 1668. Art. 9 and 14.-Treaty 1 Dec. 1674. Art. 11.-
Treaty 29th of April, 1689. Art. 12, 13:—Treaty between England and
Spain, 23 May, 1667. Art. 23.-Treaty of Commerce at Ryſwick, 20 Sept.
1697, between France and Holland, Art. 26 and 31.–Treaty between Eng-
land and France, 3 Nov. 1655. Art. 17 and 18.-Treaty of Commerce be-
tween England and France at St. Germain's, 29 March, 1632. Art. 5 and
6.-Treaty at St. Germain's, 24 Feb. 1677. Art. 7.—Treaty of Commerce
between Great Britain and France, at Utrecht, 31 March, 1713. Art. 26 and
30.-Treaty between England and Denmark, 29 Nov. 1669. Art.
23
-Heineccius, who was privy-counſellor to the king of Pruſſia, and held in:
the greateſt eſteem in his treatiſe "De Navibus ob vecturum vetitarum mer-
cium commiffis,” cap. 2. fect. 17 and 18, ſpeaks of this method of trial.
With reſpect to appeals or reviews,-from Treaty between England and
Holland, i Dec. 1674. Art. 12, as it explained by article 2, of the treaty at
Weſtminſter, 6 Feb. 1715-16.-Treaty between England and France, at
St. Germain's, 24 Feb. 1677. Art. 12.—Treaty of Commerce at Ryſwick,
20 Sept. 1697, between France and Holland, Art. 33.--Treaty of Com-
merce at Utrecht, 31 March, 1713. between Great Britain and France, Arta
31 and 32, and other treaties.
i
43%
THE LIFE OF
.
to be prize, and the goods of an enemy on board the ſhip of a friend to be
free, as appears from the treaties already mentioned, and many others *
“So likewiſe, by particular treaties, ſome goods reputed contraband by the
law of nations are declared to be free.
“ If a ſubject of the king of Pruſſia is injured by, or has a demand upon
any perſon here, he ought to apply to your majeſty's courts of juſtice, which
are equally open and indifferent to foreigner or native; fo, vice verſá, if a
ſubject here is wronged by a perſon living in the dominions of his Pruſſian
majeſty, he ought to apply for redreſs in the king of Pruſſia's courts of
juſtice.
“ If the matter of complaint be a capture at ſea during war, and the queſ-
tion relative to prize, he ought to apply to the judicatures eſtablished to try
theſe queſtions.
" The law of nations, founded upon juſtice, equity, convenience, and
the reafon of the thing, and confirmed by long uſage, does not allow of re-
priſals, except in caſe of violent injuries directed or ſupported by the ſtate,
and juſtice abſolutely denied in re minimè dubid by all the tribunals, and after-
wards by the prince up.
"Where the judges are left free, and give ſentence according to their con-
ſcience, though it ſhould be erroneous, that would be no ground for re-
priſals. Upon doubtful queſtions different men think and judge differently;
and all a friend can deſire is, that juſtice ſhould be impartially adminiſtered
to him, as it is to the ſubjects of that prince in whoſe courts the matter is
tried.
“ Secondly, as to the Fact.
“We have ſubjoined hereto two liſts, tallying with thoſe marked A. and B.
which were delivered to his grace the duke of Newcaſtle by monf. Michell,
with the faid memorial, the 23d of November laſt; and alſo printed at the
end
!
* Particularly by the aforeſaid treaty between England and Holland, 1 Dec.
1674, and the treaty of Utrecht between Great Britain and France.
f " Grotius de Jure Belli ac Pacis, lib. iii. cap. 2. fect. 4, 5.
Treaty between England and Holland, 31 July, 1667. Art. 31. Re-
priſals ſhall not be granted till juſtice has been demanded according to the
ordinary courſe of law.
Treaty of Commerce at Ryſwick, 20 Sept. 1697, between France and
Holland, Art. 4. Repriſals ſhall not be granted but on manifeſt denial of
juſtice.
WILLIAM EARL OF MANSFIELD.
433
r
I.
نب
4.
.
:
end of the ſaid Expoſition des Motifs, &c. from whence it will appear, that as
to the liſt A. which contains 18 ſhips and their cargoes,
4. 66 If ever taken, were reſtored by the captors themſelves, to the fatis-
faction of the Pruſſians, who never have complained in any court of
juſtice here.
66 Was reſtored by ſentence, with full coſts and damages, which were
liquidated at 2801l. 125. id. ſterling.
Ships were reſtored by ſentence, with freight, for ſuch of the goods
as manifeſtly belonged to the enemy, and were condemned.
Ships were reſtored by ſentence, but the cargoes, or part of them,
,
condemned as prize or contraband, and are not now alleged in
the liſts A. or B. to have been Pruſſian property.
5. Ships and cargoes were reſtored by ſentence, but the claiinant ſub-
jected to pay coſts, becauſe, from the ſhip-papers and preparatory
examinations, there was ground to have condemned, and the ref-
titution was decreed merely on the faith of affidavits afterwards
allowed.
78 “ Ship and cargo was reſtored by ſentence upon an appeal, but, from
the circumſtances of the capture, without coſts on either ſide.
“ There need no obſervations upon this liſt. As to the eight cafes firſt
above mentioned, there cannot be the colour of complaint.
" As to the four next, the goods muſt be admitted to have been rightly
condemned, either as enemy's property or contraband, for they are not now
mentioned in the liſts A. or B.
“ If contraband, the ſhip could have neither freight nor coſts, and the
ſentences were favourable in reſtoring the ſhips, upon preſumption that the
owners of the ſhips were not acquainted with the nature of the cargo or the
owners thereof. If enemy's property, the ſhips could not be entitled to
freight, becauſe the bills of lading were falſe, and purported the property
to belong to Pruffians.
66 The ſhips could not be entitled to coſts, becauſe the cargoes, or part of
them, being lawful prize, the ſhips were rightly brought in.
" As the fix remaining ſhips and cargoes were reſtored, the only queſtion
muſt be upon paying or not receiving coſts, which depends upon the cir-
cuinſtances of the capture, the fairneſs of the ſhip's documents, and conduct
of her crew; and neither the Pruſſian commiſſioners, the ſaid memorial, or
ſaid Expoſition des Motifs, &c. allege a ſingle reaſon why, upon the particu-
lar circumſtances of theſe caſes, the fentences were wrong.
K k k
1
- As
434
THE LIFE OF
1
46 As to the lift B..
“ Every ſhip, on-board which the fubjects of Pruffia claim to have had
property, was bound to or from a port of the enemy; and many of them ap-
peared to be, in part, laden with the goods of the enemy, either under their
own or fictitious names.
“ In every inſtance where it is ſuggeſted that'any part of the cargo be-
longed to a Pruffian ſubject, though his property did not appear from the
ſhip’s papers,' or preparatory examinations, which it ought to have done,
fufficient time was indulged to that Pruſſian ſubject to make an affidavit that
the property was bond fide in him; and the affidavit of the party himſelf has
been received as proof of the property of the Pruffian, ſo as to intitle him to
reftitution.
" Where the party will not ſwear at all, or ſwears evaſively, it is plain he
only lends his name to cover the enemy's property, as often came out to be
the cafe beyond the poſſibility of doubt.
“ It appears by a letter 29th of May anda gth of June, 1747, from Monf.
Andrié to his Pruſſian majeſty, exhibited in a cauſe, and certified to be a
true extract by Monf. Michell under his hand, that this colourable manner
of ſcreening the goods of the enemy was ſtated in the following words :
** Your majeſty's fubjects ought not to load on-board neutral ſhips any
goods really belonging to the enemies of England, but to load them for their
own account, whereby they inay ſafely fend them to any country they ſhall
think proper, without any riſk. Then, if privateers commit any damage to
the ſhips belonging to your majeſty's ſubjects, you may depend on full. juf-
tice being done here, as in all the like cafes hath been done.
“ Lift B. contains thirty-three cafes.
- Two of them never came before a court of juſtice in England, but (if
taken) were reſtored by the captors themſelves, to the entire fatis-.
faction of the owners.
16. “ In ſixteen of them the goods claimed by the Pruffian fubjects appear
to have been actually reſtored, by fentence, to the mafters of thips
in which they were laden ; and by the cuſtoms of the ſea the mal-
ter is in the place of the lader, and anſwerable to him.
14. << In fourteen of the caſes the Pruſſian property was not verified by the
Thip’s papers, or preparatory examinations, or clạimant's own affi-
davit, which he was allowed time to make.
2.
1
I
33
7
66 And
WILLIAM EARL OF MANSFIELD.
435
I
“And the other cauſe, with reſpect to part of the goods, is ſtill de-
pending, neither party having moved for judgement * And, ſo
conſcious were the claimants that the court.of admiralty did right,
there is not an appeal, in a ſingle inſtance, in lift B.; and but
one in lift A.
3
" Thirdly, to apply the law to the Fact.
" The ſixth queſtion in the faid Expoſition des Motifs, &c. ftates the right
of repriſals to be, puiſqu'on leur, a fi long tems denié toute la juſtice, qu'ils
étoient fondés de demander.'
“ The faid memorial founds the juſtice and propriety of his Pruſſian
majeſty's having recourſe to repriſals, becauſe his ſubjects n'ont pu obtenir
juſqu'à preſent aucune juſtice des tribunaux Anglois qu'ils ont réclamés, ou du gou-
vernement auquel ils ont porté les plaintes.' And in another part of the memo-
rial it is put après avoir en vain demandé des réparations de ceux qui ſeuls pou-
soient les faire.'
“ The contrary of all which is manifeſt from the above ſtate and liſts
hereto annexed.
“ In fix of the caſes ſpecified, if ſuch captures ever were made, the
Pruffian ſubjects were ſo well ſatisfied with the reſtitution made by the cap-
tors, that they never complained in any court whatſoever of this kingdom.
“ The reſt were judged of by a court of admiralty, the only proper court
to decide of captures at ſea, both with reſpect to the reſtitution and the da-
mages and coſts; acting according to the law of nations, the only proper
rule to decide by; and juſtice has been done by the court of admiralty fo
impartially, that all the ſhips alleged in lift A. to have been Pruſſian were
reſtored, and all the cargoes mentioned in either liſt, A. or B. were reſtored,
excepting fifteen, one of which is ſtill undetermined.
" And, in all the caſes in both liſts, juſtice was done ſo entirely to the
conviction of the private conſcience of the Pruſſian claimants, that they
have acquieſced under the ſentences without appealing, except in one ſingle
inſtance, where the part of the ſentence complained of was reverſed;
Though the Pruſſian claimants muſt know that, by the law of nations,
they ought not to complain to their own ſovereign till injuſtice in re minimè
* The Pruſſian has ſince applied for judgement on the 29th of January,
and obtained reſtitution.
Kkk 2
dubia
436
THE LIFE OF
dubia was finally done them, paſt redreſs; and though they muſt know that
rule of the law of nations held more ſtrongly upon this occaſion, becauſe the
property of prize was given to the captors, and ought therefore to be liti-
gated with them. The Pruſſian who, by his own acquieſcence, ſubmits to
the captors having the prize, cannot afterwards with juſtice make a demand
upon the ſtate. If the ſentence was wrong, it is owing to the fault of the
Pruſſian that it was not redreſſed. But it is not attempted to be ſhewn, even
now, that theſe ſentences were unjuſt in any part of them; according to the
evidence and circumſtances appearing before the court of admiralty; and
that is the criterion.
« For, as to the Pruſſian commiſſion to examine theſe caſes, ex parte,
upon new ſuggeſtions, it never was attempted in any country of the world
before : prize or not prize, muſt be determined by courts of admiralty be-
longing to the power whoſe ſubjects make the capture. Every foreign prince
in amity has a right to demand that juſtice fhall be done his ſubjects in
theſe courts, according to the law of nations, or particular treaties, where
any are ſubfiſting. If in re minimè dubid theſe courts proceed upon founda-
tions directly oppoſite to the law of nations, or ſubſiſting treaties, the neu-
tral ſtate has a right to complain of ſuch determination.
" But there' never was, nor never can be, any other equitable method
of trial. All the maritime nations of Europe have, when at war, from the
earlieſt times, uniformly proceeded in this way, with the approbation of all
the powers at peace. Nay, the perſons acting under this extraordinary and
unheard-of commiſſion from his Pruſſian majeſty, do not pretend to ſay,
that in the four cafes of goods condemned here, for which ſatisfaction is de
manded in lift A. the property really belonged to Pruſſian ſubjects; but
they profeſs to proceed upon this principle, evidently falſe, that though
theſe cargoes belonged to the enemy, yet, being on-board any neutral ſhip,
they were not liable to enquiry, ſeizure, or condemnation.
« Fourthly, from the queſtions, rutes, reaſonings, and matters alleged in
the aid memorial, ſentences of the Pruſſian commiſſioners, and Expo-
fitions des Motifs, &c. the following propoſitions may be drawn as carry-
ing the appearance of objections to what has been above laid down ...
FIRST
WILLIAM EARL OF MANSFIELD.
437
FIRST PROPOSITION.
" That by the law of nations the goods of an enemy cannot be taken on-
board the ſhip of a friend; and this the Pruſſian commiſſioners lay down as
the baſis of all they have pretended to do."
ANSWER. " The contrary is too clear to admit of being diſputed. It
may be proved by the authorities of every writer of the law of nations ; fome
of different countries are referred to *. It may be proved by the conſtant
practice, antient and modern; but the general rule cannot be more ſtrongly
proved than by the exception which particular treaties have made to it t.
SECOND PROPOSITION.
" It is alleged that lord Carteret, in 1744, by two verbal declarations,
gave aſſurances in your majeſty's name that nothing on-board a Pruſſian ſhip
* Il Conſolato del Mare, cap. 273, expreſſly ſays, the enemy's goods,
found on-board a friend's ſhip, ſhall be confiſcated.' And this is a book of
great authority.
Grotius de "Jure Belli ac Pacis, lib. iii. cap. 1, Section 5, numero 4, in
the notes, cites this paſſage, in the Il Conſolato, and in his notes, lib. iii.
cap. 6, Sect. 6.
Loccenius de Jure Maritimo, lib. 2. cap. 4, Sect. 12.
Voet de Jure Militari, cap. 5, nu. 21.
Heineccius, the learned Pruſſian before quoted, 'de Navibus ob Vesturam
vetitarum Mercium commiff?s, cap. 2, Sect. 9, is clear and explicit upon this
point.
Bynker Shoeck Quæftiones Juris Publici, lib. i. cap. 14, per totum.
Zouch (an Engliſhman) in his book de Judicio inter Gentes, pars.2, Sect. 8.
numero 6.
Treaty between Gréat-Britain and Sweden, 23 Oct. 1661. Art. 12 and 13;
treaty between Great-Britain and Denmark, 19 Noy. 1669. Art. 2 ; and the
paſſport or certificate, fettled by that treaty, are material as to this point.
no Treaty between France and England, 24 Feb. 1677. Art. 8.
Treaty of Utrecht between France and England, 1713. Art. 17.
Treaty between England and Holland, 17 Feb. 1668. Art. 10.
Treaty between England and Holland, 1 Dec. 1674. Art. 8.
Treaty between England and Portugal, 10 July, 1654. Art. 23-
Treaty between France and the States General at Utrecht, 11 April, 171:3.
Art. 26.
should
438
THE LIFE OF
66.
ſhould be ſeized, except contraband; conſequently, that all effects not
contraband, belonging to the enemy, ſhould be free; and that theſe aſſu-
rances were afterwards confirmed in writing by lord Cheſterfield, the 5th of
January, 1747."
ANSWER. “ The fact makes this queſtion not very material, becauſe there
are but'four inſtances in lifts A. or B. where any goods on-board a Pruffian
Thip have been condemned ; and no ſatisfaction is pretended to be demanded
for any of thoſe four cargoes in lifts A. and B. However, it may be pro-
per to Thew how groundleſs this pretence is.
Taking the words alleged to have been ſaid by lord Carteret as they are
ſtated, they do not warrant the inferences endeavoured to be drawn from
them. They import no new ftipulation different from the law of nations,
but expreſſly profeſs to treat the Pruffians upon the ſame foot with the ſub-
jects of other neutral powers under the like circumſtances ; i. e. with whom
there was no particular treaty. For, the reference to neutral powers cannot
be underftood to communicate the terms of any particular treaty. It is not
ſo faid. The treaties with Holland, Sweden, Ruſſia, Portugal, Denmark,
&c. all differ. Who can ſay which was communicated? There would be
no reciprocity : the king of Pruſſia does not agree to be bound by the clauſes
to which other. powers have, by their reſpective treaties, agreed. No
Pruſſian goods on-board an enemy's ſhip have ever been condemned here,
and yet they ought, if the treaties with Holland were to be the rule between
Great Britain and Pruſſia ; nay, if theſe treaties were to be the rule, all now
contended for, on the part of Pruſſia, is clearly wrong; becauſe, by treaty,
the Dutch, in the laſt reſort, are to apply to the court of appeal here.
Treaty of Alliance between Great Britain and Holland, at Weſt-
minſter, the 6th of Feb. 1715-16, Article II.
" Whereas fome diſputes have happened touching the explanation of the
twelfth article of the treaty marine in 1674, it is agreed and concluded for
deciding any difficulty upon that matter, to declare by theſe preſents, that
by the proviſions, mentioned in the ſaid article, are meant thoſe which are
received by cuſtom in Great Britain and the United : Provinces, and always
have been received, which have been granted, and always are granted, in
the like caſe, 'to the inhabitants of the ſaid countries, and to every foreign
nation."
- Lord
WILLIAM EARL OF MANSFIELD.
439
...
“ Lord Carteret is ſaid twice to have refuſed, in wliich Monſieur Andrié
acquieſces, to give any thing in writing, as not uſual in England.
Suppoſing the converſations to mean no more than a delaration of courſe
that juſtice ſhould be done to the Pruſſians in like manner as to any other
neutral power with whom there was no treaty, there was no occaſion for in-
ſtruments in writing; becauſe in England the crown never interferes with
the courſe of juſtice. No order or intimation is ever given to any judge.
Lord Carteret therefore knew that it was the duty of the court of admiralty
to do equal juſtice, and that they would, of themſelves, do what he ſaid to
Monſieur Andrie.
“ Had it been intended, by agreement, to introduce between Pruſſia and
England a variation in any particular from the law of nations, and conſe-
quently a new rule for the court of admiralty to decide by, it could only be
done by a folemn treaty, in writing, properly authorized and authenticated.
The memory of it could not otherwiſe be preſerved ; the parties intereſted
and the courts of admiralty could not otherwiſe take notice of it.
6 But lord Cheſterfield's confirmation, in a letter of the 5th of January,
1747, being relied upon, the books of the ſecretary's office have beeii
ſearched, and the letter to Monſieur Michell is found, which is verbatim as
follows:
)
2
+
“ Monfieur,
A Whitehall, le 5 Janv. 1747-8.
“ Ayant eu l'honneur de recevoir les ordres du roy ſur ce qui
a formé le ſujet du méinoire que vous m'avez rerris du 8 de ce mois, N. S.
je n'ai pas voulu tarder à vous informer, que fa majeſté, pour ne rien omet-
tre par où elle peut témoigner ſes attentions envers le roy votre maître, ne
fait nulle difficulté de déclarer, qu'elle n'a jamais eu l'intention, ni ne l'aura
jamais, de donner le moindre empêchement à la navigation des ſujets Pruſ-
fiens, tant qu'ils auront ſoin d'exercer leur commerce d'une maniere licite,
& conformément à l'ancien uſage établi & reconnu parmi les puiſſances
neutres.
“Que fa majeſté Pruſſienne ne peut pas ignorer, qu'il y a des traités de
commerce qui fubfiftent actuellement entre la Grande Bretagne & certaines.
états neutres, &, qu'au moyen des engagemens formellement contractés de
part & d'autre par ces mêmes traités, tout ce qui regarde la maniere d'exer-
cer leur commerce réciproquement à été finalement conftaté & reglé.
5 Qu'en
i.
I
4:10
THE LIFE OF
" Qu'en même tems il ne paroît point qu'aucun traité de la nature fuidite
exifte à préſent, ou a jamais exiſté, entre fa majeſté & le roy de Pruſſe ;
mais que pourtant cela n'a jamais empêché que les ſujets Pruſſiens n'ayent
été favoriſés par l'Angleterre, par raport à leur navigation, autant que les
autres nations neutres : &, cela étant, fa majeſté ne preſuppoſe pas, que l'idée
du roy votre maître ſeroit d'exiger d'elles des diſtinctions, encore moins des
préférences, en faveur de ſes ſujets à cet égard.
" Que de plus fa inajeſté Pruſſienne eſt trop eclairée pour ne pas con-
noître, qu'il y a des loix fixes & établies dans ce gouvernement, dont on ne
peut nullement s'écarter ; & que, s'il arrivoit que la marine Angloiſe s
s'aviſât
de faire la moindre injuſtice aux ſujets conimerçans du roy votre maître, il y
a un tribunal ici, ſavoir, la haute cour de l'amirauté, à laquelle ils ſe trou-
vent en droit de s'adreſſer & de porter leurs plaintes; aſſurés d'avance, en
pareil cas, qu'on leur y rendra bonne juſtice ; les procédés juridiques de la-
dite cour étant & ayant éte de tout tens hors d'atteinte & irréprochables ;
témoin, nombre d'exemples, où des vaiſſeaux neutres, pris illicitement, ont
été reftitués avec fraix & dommages aux propriétaires.
“ Voici ce que le roy m'a ordonné de vous répondre ſur le contenu de
votre dit mémoire ; & fa majeſté ne ſauroit que ſe flatter, qu'en conſéquence
de ce que je viens d'avancer il ne reſtera plus rien à deſirer au roy votre
maître relativement à l'objet dont il eſt queſtion ; & le roy s'en croit d'autant
plus aſſuré, qu'il eſt perſuadé que fa majeſté Pruſſienne ne voudroit rien de-
mander que ne fût équitable.
“ Je ſuis, avec bien de la conſidération,
“ Monſieur,
« Votre très humble & très obeiſfant ſerviteur,
- CHESTERFIELD.
- Tranſlation of the Earl of Cheſterfield's Letter to Monſieur Michell.
66 Sir,
60
Whitehall, January 5, 1747-8.
Having had the honor to receive the king's orders upon the ſub-
ject of the memorial which you delivered to me on the 8th inſtant, N. S.
I would not delay informing you that his majeſty, in order to omit nothing
whereby he may ſhew his attention to the king your maſter, makes no diffi-
culty in declaring, that his majeſty has never had, or will have, any inten-
tion
TVILLIAM EARL OF MANSFIELD.
441
tion to give any interruption to the navigation of the . Pruffian ſubjects, as
long as they ſhall take care to carry on their commerce in a lawful manner,
and conformably to the antient uſage as eſtablished and acknowledged
amongſt neutral powers.
“ His Pruſſian majeſty cannot be ignorant that there are treaties of com-
merce actually ſubfiſting between Great Britain and certain neutral ſtates,
and that, by means of the engagements formerly contracted on each ſide by
thoſe treaties, every thing relating to the manner of reciprocally carrying on
their commerce has been finally ſettled and regulated.
“At the ſame time it does not appear that any ſuch treaty exiſts at preſent
or ever did exiſt, between his majeſty and the king of Pruſſia ; nevertherleſs
that has never hindered the Prullian ſubjects being favoured by England,
with reſpect to their navigation, as inuch as other neutral nations: and his
majeſty does not ſuppoſe that the king your maſter ineans to require diſtinc-
tions from his majeſty, much leſs any preferences, in favour of his ſubjects
in this point.
“His Pruſſian majeſty is too well informed not to know that there are in
this government fixed and eſtabliſhed laws which cannot be departed from ;
and that, in caſe any Engliſh ſhips of war ſhould commit the leaſt injuſtice
to the trading ſubjects of the king your maſter, here is a tribunal, viz. the
high court of admiralty, where they have a right to apply and make their
complaints; and they may be previouſly aſſured, that in ſuch caſe impartial
juſtice will be adminiſtered to them ; the juridical proceedings of the faid
court being, and having ever been unimpeached and irreproachable, as ap-
pears by numerous examples of neutral veſſels illegally taken having been
reſtored with coſts and damages to the proprietors.
« This is the anſwer the king has ordered me to give upon the contents of
your
ſaid memorial; and his majeſty cannot but flatter himſelf that, in con-
ſequence hereof, the king your maſter's defire will be fully anſwered, with
relation to the point in queſtion ; and of which his majeſty is the more af-
ſured, as he is perſuaded that the king of Pruſſia would not require any
thing but what is equitable.
“ I am, with much conſideration,
“
" Your moſt obedient, and moſt humble ſervant,
6 CHESTERFIELD.
L11
1
66
Sir,
“There
432
THE LIFE OF
t
ri There need no obfervations ; it is explicit, and in expreſs terms puts
Pruſſia
upon
the foot of other neutral powers with whom there was no treaty,
and points out the proper way of applying for redreſs.
6. The verbal declarations made by lord Carteret in 1744, which are ſaid
to have been confirmed by this letter from lord Cheſterfield, cannot have
meant more than the letter expreffes.
“ And it is manifeſt by the above extract from Monſieur Andrie's letter to
his Pruffian majeſty, that in May, 1747, Monſieur Andrié himſelf under-
ſtood that goods of the enemy taken on board neutral ſhips ought to be con-
demned as prize.
“ It is evident, from authentic acts, that the ſubjects of Pruffia never un-
derſtood that any new right was communicated to them.
“ Before the year 1746 the Pruſſians do not appear to have openly engaged
in covering the enemy's property.
“ The men of war and privateers could not abſtain from captures in con-
fequence of lord Carteret's verbal aſſurances in 1744, becauſe they nerer
were nor could be known; and there was no occaſion to notify them, fup-
pofing them only to promiſe impartial juſtice. For, all ſhips of war were
bound to act, and courts of (admiralty to judge, according to the law of na-
tions and treaties.
“ Till 1746 the Pruſſian documents were, a certificate of the admiralty,
upon the oath of the builder, that the ſhip was Pruſſian-built; and a certifi-
cate of the admiralty, upon the oath of the owner, that the ſhip was Pruflian.
property.
“ From 1746 the Pruſſians engaged in the gainful practice of covering the
enemy's goods, but were at a loſs in what ſhape and upon what pretence it:
might beſt be done.
“ On-board the ſhip the Trois. Soeurs was found a paſs bearing date at
Stettin, the 6th of October, 1746, under the royal ſeal of the Pruffian re-
gency of Pomerania, &c. alleging the cargo, which was ſhip-timber, bound for
Port L'Orient, to be Pruſſian property, and, in conſequence thereof, claim-
ing freedom of the ſhip.
Claiming freedom to the ſhip from the property of the cargo being
quite new, the propoſition was afterwards reverſed. And on-board a ſhip.
called the Jumeaux, was found a paſs bearing date at Stettin, the 27th of
June, 1747, under the royal ſeal, &c. alleging the ſhip to be Pruſſian pro-
perty, and, in conſequence thereof, claiming freedom to the goods.
But
2
WILLIAM EARL OF MANSFIELD.
443
--
* But this paſs was not ſolely relied on; for, there was alſo found on-board
the ſame ſhip another paſs, bearing date at Stettin, the 14th of June, 1747,
under the royal ſeal, &c. alleging the cargo to be Pruſſian property.
66 And it is remarkable that the oaths upon which theſe paſſes were grant-
ed, appeared manifeſtly to be falſe; and neither of the cargoes to which they
relate are now ſo much as alleged to have been Pruſſian property in the ſaid
lifts A. or B.
It being mentioned in the ſaid “Expoſition des Motifs, &c.” that
Manf. Michell, in September, 1747, made verbal repreſentations to lord
Cheſterfield in reſpect to the cargo taken on-board the ſaid ſhip called the
Trois Soeurs, which was claimed as Pruſſian property, and no mention being
made in liſts A. and B. of the ſaid cargo, we directed the proceedings in
that cauſe to be laid before us; where it appears in the fulleſt and cleareſt
manner, from the ſhip-papers and depoſitions, that the cargo was timber, laden
on the account and at the riſque of Frenchmen, to whom it was to be de-
livered at Port L'Orient, they paying freight according to charter-party;
that the Pruſſian claimant was neither freighter, lader, or conſignee; and
had no other intereſt or concern in the matter than to lend his name and
confcience ; for he ſwore that the cargo was his property, and laden on or
before the 6th of October, 1746, and yet the ſhip was then in ballaſt, and
the whole of the cargo in queſtion was not laden before May, 1747.
- Several other Pruffian claims had, in like inanner, come out ſo clearly
to be merely colourable, that Monſ. Andrié, from his ſaid letter the 29th of
May and 9th of June, 1747, appears to have been aſhamed of them.
THIRD PROPOSITION.
- That lord Carteret, in his ſaid two converſations, ſpecified, in your ma-
jeſty's name, what goods ſhould be deemed contraband.”
Answer. “ The fact makes this queſtion totally immaterial, becauſe no
goods condemned as contraband, or which was alleged to be fo, are ſo much
as now ſuggeſted to have been Pruſſian property in the ſaid lifts A. and B.;
and therefore, whether as enemy's property or contraband, they were either
way rightly condemned ; and, the bills of lading being falſe, the ſhips could
not be entitled to freight.
LI12
6. But
444
THE LIFE OF .
como
“ But if the queſtion was material, the verbal declaration of a minifter
in converſation might ſhew what he thought contraband by the law of na-
tions, but never could be underſtood to be equivalent to a treaty derogating
from that law.
“ All the obſervations upon the other parts of theſe verbal declarations.
hold equally as to this..
3
{
FOURTH PROPOSITION.
* That the Britiſh miniſters have ſaid, that theſe queſtions were decided
according to the laws of England.”
ANSWER. They muſt have been miſunderſtood ; for, the law of En-
gland ſays, that all captures at ſea, as prize, in time of war, muſt be judged
of in a court of admiralty, according to the law of nations and particular
treaties, where there are any.
“There never exiſted a caſe where a court, judging according to the laws
of England only, ever took cognizance of prize.
The
property of prizes being given during the laſt war to the captors,
your majeſty could not arbitrarily releaſe the capture, but left all caſes to the
deciſion of the proper courts, judging by the law of nations and treaties
where there were any; and it never was imagined, that the property of a
foreign ſubject, taken as prize on the high ſeas, could be affected by, laws
peculiar to England.
66
1
FIFTH PROPOSITION.
“That your majeſty could no more erect tribanals for trying theſe matters
than the king of Pruſſia."
ANSWER. “Each crown has, no doubt, an equal right to erect admi.
ralty courts for the trial of prizes taken by virtue of their reſpective com-
miſſions; but neither has a right to try the prizes taken by the other, or to
reverſe the ſentences given by the other's tribunal. The only regular method
of rectifying their errors is, by appeal to the ſuperior court.
“ This is the clear law of nations; and by this method prizes have always
be determined in every other maritime country of Europe as well as
England.
SIXTH
WILLIAM EARL OF MANSFIELD.
445.
SixTH PROPOSITION.
- That the ſea is.free."
ANSWER.
They who maintain that propoſition in its utmoſt extent,
do not diſpute but that when two powers are at war they may ſeize the ef-
fects of each other upon the high ſeas, and on board the ſhips of friends;
therefore that controverſy is not in the leaſt applicable upon the preſent oc-
cafion *..
1
SEVENTH PROPOSITION.
-Great Britain iſſued repriſals againſt Spain, on account of captures
at.ſea."
2
-
ANSWER. “ Theſe:captures were not made in time of war with any
power.
“ They were not judged of by courts of admiralty, according to the law
of nations and treaties, but by rules, which were themſelves complained of
in revenue-courts; the damages were afterwards admitted, liquidated at a
certain ſum, and agreed to be paid by a convention, which was not per-
formed; therefore repriſals iſſued, but they were general. No debts due
here to Spaniards were ſtopped; no Spaniſh effects here were ſeized; which :
leads to one obſervation more.
“ The king of Pruſſia has engaged his royal word to pay the Sileſia debt
to private men.
“ It is negotiable, and many parts may have been aſſigned to the ſubjects
of other powers. It will not be eaſy to find an inſtance where a prince
has thought fit to make repriſals upon a debt due from himſelf to private
men. There is a confidence that this will not be done. A private man
lends money to a prince upon the faith of an engagement of honour, becauſe
a prince cannot be compelled, like other men, in an adverſe way, by a court
of juſtice. So ſcrupulouſly did England, France, and Spain adhere to this
public faith, that even during the war they ſuffered no enquiry to be made
whether any part of the public debts was due to ſubjects of the enemy,
though it is certain many Engliſh had money in the French funds, and many
French had money in ours.
* This appears from Grotius in the paſſages above cited, lib. 3, cap. 1. 95
No. 4. in his notes, and lib, 3, cap. 6, 6, in his notes,
66 This
446
THE LIFE OF
6. This loan to the late emperor of Germany, Charles the VIth, in Janu-
ary 1734-5, was not a ſtate tranſaction, but a mere private, contract with
the lenders, who advanced their money upon the emperor's obliging himſelf,
his heirs and poſterity, to repay the principal, with intereſt, at the rate, in
the manner, and at the times in the contract mentioned, without any de-
lay, demur, deduction or abatement whatſoever ; and, left the words and
inſtruments made uſe of ſhould not be ſtrong enough, he promiſes to ſecure
the performance of his contract in and by ſuch other inſtruments, method,
manner, form, and words, as ſhould be moſt effectual and valid to bind
the ſaid emperor, his heirs, ſucceſſors and poſterity, or as the lenders ſhould
reaſonably defire.
“ As a ſpecific real ſecurity, he mortgaged his revenues ariſing from the
Duchies of Upper and Lower Sileſia for payment of principal and intereſt;
and the whole debt, principal and intereſt, was to be diſcharged in the
year
1745. If the money could not be paid out of the revenues of Sileſia, the
emperor, his heirs and poſterity, ſtill remained debtors, and were bound to
pay. The eviction or deſtruction of a thing mortgaged, does not extinguiſh
the debt or diſcharge the debtor.
“Therefore the empreſs queen, without the conſent of the lenders, made it
à condition of her yielding the Duchies of Sileſia to his Pruſſian majeſty,
that he ſhould ſtand in the place of the late emperor in reſpect of this debt.
- The ſeventh of the preliminary articles between the queen of Hungary
and the king of Pruſſia, ſigned at Breſlau the IIth of June, 1742, is in thefe
words : Sa majeſté le roi de Prulle ſe charge du ſeul payement de la ſomme hy-
pothéquée ſur la Siléſie, aux marchands Anglois, ſelon le contract ſigné à Londres
le 7me de Janvier 1734-5 ,
“ This ſtipulation is confirmed by the ninth article of the treaty between
their faid majeſties, figned at Berlin the 28th of July 1742.
Alſo renewed and confirmed by the ſecond article of the treaty between
their faid majeſties, figned at Dreſden the 25th of December 1745.
66 In conſideration of the empreſs queen's ceſſion, his Pruffian majeſty
has engaged to her that he will pay this money ſelon le contract, and conſe-
quently has bound himſelf to ſtand in the place of the late emperor in re-
ſpect of this money, to all intents and purpoſes.
“ The late emperor could not have ſeized this money as repriſals, or eren
in caſe of open war between the two nations, becauſe his faith was engaged
to pay it without any delay, demur, deduction, or abatement whatſoever.
If
--
..
WILLIAM EARL OF MANSFIELD.
447
--
If theſe words ſhould not extend to all poſtible caſes, he hath plighted his
honour to bind himſelf by any other form of words more effectually to pay
the money; and therefore was liable at any time to be called upon to declare
expreflly that it ſhould not be ſeized as repriſals, or in caſe of war; which
is very commonly expreſſed when ſovereign princes or ſtates borrow money
from foreigners. Therefore, ſuppoſing for a moment that his Pruſſian ma-
jeſty's complaint was founded in juſtice and the law of nations, and that he
had a right to make repriſals in general, he could not, conſiſtent with his
engagements to the empreſs queen, ſeize this money as repriſals : beſides,
this whole debt, according to the contract, ought to have been diſcharged
in 1745. It ſhould, in reſpect of the private creditors, in juſtice and equity,
be conſidered as if the contract had been performed; and the Pruffian com-
plaints do not begin till 1746,, after the whole bebt ought to have been
paid.
Upon this principle of natural juſtice, French ſhips and effects wrong-
fully taken after the Spaniſh war, and before the French war, have, during
the heat of the war with France, and ſince, been reſtored by fentence of
your majeſty's courts to the French owners. No ſuch ſhips or effects ever
were attempted to be confiſcated as-enemy's property here during the war;
becauſe, had it not been for the wrong firſt done, theſe effects would not
have been in your majeſty's dominions. So, had not the contract. been firſt
broken by non-payment of the whole loan in 1745, this money would not
have been in his Pruſſian majeſty's hands.
6. Your majeſty's guaranty of theſe treaties is entire, and muſt therefore
depend upon the ſame conditions upon which the ceſſion was made by the
empreſs-queen..
so But this reaſoning is, in ſome meaſure, fuperfluous; becauſe, if the
making any repriſals upon this occaſion be unjuſtifiable, which we appre-
hend we have ſhewn, then it is not diſputed but that the non-payment of
this money would be a breach of his Pruſſian majeſty's engagements, and a
renunciation, on his part, of thoſe treaties.
ss All which is moſt humbly ſubmitted to your majeſty's royal wiſdom..
GEO. LEE.
G. PAUL.
January 18, 1753
D. RYDER
W. MURRAY."
1.782
i
3
448
THE LIFE OF
1782.
Admiralty Juriſdiction.
The foundation and nature of the Prize Juriſdiction in the
court of Admiralty, having been explained and elucidated by
lord Mansfield in a very elaborate argument, on the 4th of Fe-
bruary, 1782, when he delivered the opinion of the court in the
famous caſe of Lindo verſus Rodney and others.
The author is deſirous, not only on account of its intrinſic
merit, but alſo of its coincidence with, and confirmation of,
many of the ingenious arguments in the duke of Newcaſtle's
memorial, to impreſs on the mind of the juriſprudent, that his
lordſhip's ſpeech, on that intereſting occaſion, cannot be too
attentively conſidered. Mr. Douglas, in his Reports, p.501 to 598,
has inſerted a very correct tranſcript of that important ſpeech..
To trace the origin, nature, and juriſdiction, of the court of
Admiralty over all matters of prize, and every thing conſequen-
tial to a capture of prize, in the very neat, progreſſive, and con-
vincing manner, in which it was done by lord Mansfields, muſt
unavoidably proceed to lengths improper for, if not inadmiſſible
in, a work of this nature.
4
Mitchell and another againſt Rodney and another.
A ſubſequent action * having been tried before lord Mansfield
at the ſittings after Hilary Term, 22 George III. and a ſpecial
verdict found, upon which judgement paſſed the enſuing term
without
argument, the opinion of the court being known in the
former cauſe, yet a writ of Error was brought in the Houſe of
Lords upon that judgement, and the reader is, we preſume,
prepared to hear that the judgement of the court of King's Bench
was affirmed.
* Douglas, p. 598.
On
:
449
WILLIAM IAN
EARL OF MANSFIELD.
1
On the firſt day of January, 1782, Dr. Newton biſhop of Briſtol
entered on the 70th year of his age. He reckoned himſelf to be the
oldeſt Weſtminſter fcholar then living. He was older than the earl
of Mansfield, and on the new year's day wrote the following note
to his old friend and ſchool-fellow.
“ My Lord,
St. Paul's, January'ı, 1782.
“ Give me leave, at the coming in of the new year, to
addreſs your lordſhip with the old wiſh of multos et felices. I am happy tó
hear froin all friends ſo goed an account of your health ; and I rejoice in it
for the ſake of the public as well as your own, your’s being a life of the
greateſt conſéquence, an ornament and bleſſing to your country.. Mine is
but labour and forrow, and I have often occaſion devoutly to with Lord, now
letteſt thou thy ſervant depart in peace. Never having been ſtrong and healthy,
it is no wonder, that; entering into the 70th year of my age, I bow under a
load of growing evils. One that diſtreſſes me much came on very faſt by
my illneſs this laſt ſummer, the failure of my eyes to ſuch a degree, that I
can read and write very little by day-light, and not at all by candle-light
with the help of any glaſſes. But amidſt all my infirmities, God be praiſed,
my ſpirits ſtill bear rne up. If they were to fail, I ſhould be miſerable in-
deed. I had the good fortune not to hear of lady Mansfield's illneſs, till
I was informed of her recovery, which I hope continues as complete and
perfect as it is reported to be. As long as I live I ſhall offer up my prayers
for the health and happineſs of your lordſhip and all your family, and I
muft ceaſe to be myſelf before I can ceaſe to be,
My Lord,
Your ever affectionate, obliged, and faithful humble ſervant."
ور
$
The bearer who carried this note returned with this obliging
anſwer.
.
3
“ My dear Lord,
January 1, 1982.
" A thouſand thanks to you
for
your
moſt friendly
letteſ. We two are almoſt left alone. Thank God, I go down the hill
without pain except for the public; and, if the Breſt fleet and convoy are
diſperſed and driven back, this year opens propitiouſly. Lady Mansfield,
Mmm
blefied
..
450
THE LIFE OF
bleſſed be God, has had a miraculous recovery from a very ſudden and vio-
lent illneſs. Prudence on her account has kept me hitherto in town theſe
holidays. I hope to be able foon to have the pleaſure of ſeeing you, and
thanking you perſonally for your kind remembrance of
Your moſt affectionate, &c.
MANSFIELD."
The Biſhop, in another part of his anecdotes, has been pleaſed
to obſerve,
!
« Lord Mansfield's is a character above all praiſe, the oracle of law, the
ſtandard of eloquence, and pattern of all virtue, both in public and private
life. It was happy for the nation, as well as for himſelf, that at his age there
appeared not the leaſt fymptom of decay in his bodily or in his mental
faculties; but he had all the quickneſs and vivacity of youth, tempered with
all the knowledge and experience of old age. Except the king's, no man's
life was of greater importance and conſequence to his country, and wiſhing
well to him was wiſhing well to all mankind. When his nephew lord Stor-
mont had married, and had a fair proſpect of having children ; he, with
good reaſon, aſked and obtained an earldom for himſelf to deſcend to the
male heirs. Upon which occafion biſhop Newton, in the fincerity of his
heart, addreſſed to him the following letter:
66 MY LORD,
Kew-Green, Oet. 20th, 1776.
“ You have long merited the higheſt honours which this country can
beſtow ; but it was not fitting that they ſhould die with you : ſomething
ſhould remain as a monument to poſterity. I beg leave therefore to congra-
tulate your lordſhip, or rather my lord Stormont, upon your additional
titles. Nothing can be properly an addition to yourſelf. You may rank
higher in the world, but you cannot riſë higher in the opinion and eſteem of
all who know you, and particularly of,
My dear Lord,
“ Your Lordſhip's ever affectionate and obedient ſervant.”
56 Soon after he was favoured with the following friendly anſwer :
i
66 ME
WILLIAM EARL OF MANSFIELD.
457
“ MY DEAR LORD,
Kenwood, Oct. 22, 1776.
“ I am.exceedingly flattered by your letter, which I have juſt received ;
becauſe I know the friendly fincerity of the heart from whence it flows. You
do juſtice to my view in this creation. Lady Stormont is five months gone
with child. If it pleaſe God to bleſs lord Storimont with iſſue male, I wiſh,
from a pardonable vanity becauſe common, that they may repreſent my name
as their firſt title. The manner of conferring this mark did great honour,
and conſequently gave great pleaſure to,
66 Your moſt affectionate, &c.
MANSFIELD."
.
“ The event was anſwerable to the good wiſhes and expectations of him-
ſelf, his family, and friends; for at the beginning of March following lady
Stormont was delivered at Paris of a fon and heir to the title of earl of Mans--
field *. Another ſon has been born ſince; and probably there may be more.
The noble lord thus lives happy in himſelf, happy in his family plenus annis,
plenus honoribus, etiam illis quos recufavit ; and may he long, very long, con-
tinue thus ! yet with all this worth, and all this excellence, greatly as he has
been eſteemed, and highly as he has been honoured in his life-time, his vir-
tues will ſhine forth more illuſtrious, and his merits will be more univerſally
allowed and applauded after his death. Envy will then be dumb, and faction
be heard no more."
In 1784. The preſſure of ſome bodily infirmities for the firſt
time admoniſhed the venerable peer to ſeek relaxation and relief
from the ſalutary ſprings and the vivifying ſoft air of Tun-
bridge.
No ſooner was he feated there, than he diffuſed life and ſpirit
all around him. An accident in the ball-room would have
been deemed too trivial for the pen of genius to portray, if
it had happened to any common perſon ; but on lord Mans-
field's falling with lady Edward Bentinck from a bench in the
* Lord Chief Juſtice Mansfield was, by the firſt patent of an earldom,
created earl of Mansfield in the county of Nottingham. This
This patent was
extended to lady Stormont and her iſſue male by lord Stormont. The ſecond
included lord Stormont in the ſucceſſion by the ſtyle and title of earl of Mans-
field in the county of Middleſex.
M m m 2
ball-room
4:52
THE LIFE OF
}
ball-room at Tunbridge Wells, and loſing his wig, a lady thus:
commenced her flight into the regions of fancy.
" Who would not think it perfect bliſs.
In ſuch a gallant cauſe as this
With ſuch a fair to fall ?
How could a courtier be afraid?
When youth and beauty claim'd his aid
The facrifice was ſmall.
0
r
“Fair nymph! for thee, the ruſtic 'fquire
Would leave his hounds; the bard his lyre,
His quill, and laurel-crown;
The monk would ceaſe to count his beads;
The pilgrim throw aſide his weeds,
The fenator his gown.
t
“ Mourn not, ye judges, when we tell
"How from the bench earl Mansfield fell,
For, Juſtice thus replies:
6 Without a wig, without a gowng,
He ſtill muſt equally be known
Pre-eminently wiſe.
s« Not to an outward form confind...
His bright, his comprehenſive mind,
In every dreſs the ſame. .
Diffuſes o'er the world its ray,
And, keeping death and time at bay,
Glows with one ſteady flame.”
On the ſame. By Lady
*s When he, to whom Aftræa gave her laws,
Became endanger'd by, a trivial cauſe,
The goddeſs caught and ſav'd the falling fage,
And bade his wiſdom bleſs another age.
99
”
* Suppoſed to be lady Burrell..
An
WILLIAM EARL OF MANSFIELD.
453
Ain Invocation to the Nymph of the Spring at Tunbridge-Wells,
on Lord Mansfield's having expreſſed an Intention of leaving
the place. By the fame Lady.
66 Ariſe, fair Naiad ! from thy well ;
Ariſe, and tune thy vocal ſhell,
Try ev'ry ſoft bewitching art,
To charm the ear, and pleaſe the heart,
Till Mansfield ſhall thy voice obey,
And near thy, ſpring conſent to ſtay.
Sweetly warble in his ear,
• Health, and all her train are here;
Health, whoſe liberal hand beſtows.
Nights of undiſturb'd repoſe,
Hours of ſocial mirth and glee,,
Days of ſoft tranquillity.'
Nymph! at thy pellucid ſpring
Ruddy health delights to dwell,
Fanning, with her magic wing,
The mineral ſparks that fill thy well,
And o'er the ſurface of the ſtream
Hope ſheds her faſcinating beam.
Bacchus, rofy god of wine,
Muſt to thee the palm reſign.-
His ſweets nectarequs may impart
A ſhort-liv'd banquet to the heart ;
May diſſipate the gloom of care,
And fhield the ſufferer from deſpair;
May bid the ſlave forget his chains,
The exil'd wretch his native plains,
And by a tranſient joy ſuſpend:
The anguiſh of an injur'd friend..
Yet long the viſion cannot laſt;
With reaſon, forrow's force returnsą,
The dream of happineſs is paſt,
The ſlave perceives his chain, and mourns.
Again!
454
THE LIFE OF
;
Again the lover feels his pains,
Again the injur'd friend complains;
The artificial ſpirits ceaſe to blaze,
And weaken'd nature rapidly decays.
But thou, O nymph! can'ſt cheer mankind;
Invigorate the drooping mind
Bid faded beauty re-aſſume
Her ſprightly grace, her roſeate bloom ;
Give ſpirit to the languid eye,
And baniſh from the breaſt dejection's figh;
While o'er thy ſparkling fountain bends
The wiſeſt judge, the beſt of friends ;
Nymph of the ſtream ! indulgent heaven
The grateful taſk to thee has given,
To bid him from thy well receive
The renovating draught, and live.
Thy power has made thoſe eyes benign
With all their former luſtre ſhine.
Science and art no longer mourn,
Again they ſee his health return,
And hear his tuneful lips diſpenſe
The words of pureſt eloquence.”
1
Anſwer to the Nymph of the Spring at Tunbridge-Wells, to
the Invocation, written on Lord Mansfield's declared Inten-
tion of leaving the Place. By a Gentleman.
Say whence that voice, which thus ſo ſweetly ſings,
Around the margin of my healing ſprings ?
Has any fiſter of th' harmonious nine
Left fair Caſtalia's fount to viſit mine?
But, ah! not one of all the Muſes' choir,
Nor the ſoft warblings of a Burrell's lyre,
Not all the various arts which moſtly pleaſe,
The bliſs of friendſhip, and the love of eaſe,
Can
I
WILLIAM EARL OF MANSFIELD.
455
1
Can tonger here invite a Mansfield's ſtay;
The public welfare haſtens him away.
Enliven'd by my ſtreams and purer air,
Britannia's health is now his only care.
And, lo! Aftræa, with a ſolemn call,
Remands her fav'rite to her facred hall,
To poiſe again her ſcales with equal hand,
And due obedience with her ſword command,
Whilft from his ſeat, with reverential awe,
He ſpeaks the oracles and voice of law.
For ſuch high duties heaven at firſt defign'd
The patriot ſage, a bleſſing to mankind.
Thus fpake the Naiad, from her wat’ry cell,
And Mansfield bids, with wiſhful lingering look, farewell.”
Verſes inſcribed to Lord Mansfield, after his leaving Tunbridge-
Wells, 1784. By a Gentleman of that Place.
" Whilft Mansfield here, as good as great,
Adorn'd this healthful bleft retreat,
Our ſuns with brighter luſtre fhone,
Our hours more chearfully paſs'd on;
The Muſes tun'd their ſweeteſt ſong,
And harinoniz'd the feſtive throng';
The loves and graces form'd the ball,
And ſocial pleaſures gladden'd all.
But, fince Aftræa call'd away
Her's and our pride, how dull the day!
How chang'd the ſcene! A ſilent gloom
Shades ev'ry walk, and ev'ry room;
Forlorn, the nymphs and ſwains retire,
And mute is Burrell's vocal lyre ;
Our rural plains around all ſeem to mourn,
And join the general prayer for his return."
IN
456
THE LIFE OT
:
IN many of the preceding pages, the author has endeavoured
to delineate the great outlines of lord Mansfield's legal character ;
deducible from a proper temperature and illuſtration of hiſtory and
ethics, which hislordſhip was accuſtomed to ſay were the true ſources
of all law. In attempting more than the great outlines of character
he might have failed. In ſoaring higher he might have fallen : at
all events he muſt have pervaded the wide regions of law and equity,
în ſearch of proper colouring for a perfeet femblance. The work
would have been voluminous, and he begs leave to add, in a great
degree unneceſſary, ſince it muſt be allowed, that a great chief-
juſtice had the good fortune to engage three able reporters, Sir
James Burrow, the right honourable Sylveſter Douglas, and Mr.
Cowper, in his fervice. To collect and bring into one point of
view the innumerable traits of his illuſtrious legal character, the
author has been obliged to hover, as it were, over many fair and
fertile fields of legiſlation ; whether with profit or pleaſure to the
reader not for him to determine. If he has hitherto ſucceeded
in two grcat objects, which ought never to be ſeparated in con-
templating illuſtrious characters ; firſt, a ſedulous endeavour to
be uſeful in that ſphere of life wherein it has pleaſed Providence
to place us; and ſecondly, to promote emanations of gratitude
for early patronage, which, like the radiant fun, ſheds its influ-
ence far and wide, and, without loſing any of its luſtre, confers
ineſtimable benefits on all who are under its benign influence.
The energy of this principle, duly cheriſhed in the mind, has not
failed to ſurmount many difficulties, to curb all inordinate love
of laſſitude, to overbalance the greateſt diſadvantages, and make
whatever is in the direct line of duty not only the object of incli-
nation, but of rational amuſement.
Conſcious that he has endeavoured to diſcharge a duty of fome
importance with fidelity and honeſt zeal, he will chearfully reſign
2
the
WILLIAM EARL OF MANSFIELD.
457
.;
the farther diſcuſſion of his lordſhip's character to abler hands :
yes, a faithful tranſcript of his public character remains to be
promulgated. The concurrent teſtimonies of modern writers have
not been hitherto called in aid, the nellifluous treaſures from
their rich hives, remain to be collected.
“ To illuſtrate his oratory, by example, (lays an ingenious inodern wri-
ter,) would require voluminous tranſcripts from the records of parliament;
and it is unneceſſary, as we can appeal to living recollection.
“ However party-prejudices may adopt their different favorites, and each
labour in detracting from the merit of the other, it is, we believe, generally
underſtood, that precedence is allowed the earl of Mansfield, as the firſt
magiſtrate that ever ſo pre-eminently graced that important ſtation. The
wiſdom of his deciſions and unbiaffed tenor of his public conduct, will be
held in veneration by the fages of the law, as long as the ſpirit of the con-
ftitution, and juſt notions of equity, continue to have exiſtence. No man
has ever in an equal degree poſſeſſed that wonderful fagacity in diſcovering
chicanery and artifice, and ſeparating fallacy from truth, and ſophiſtry from
argument, ſo as to hit the exact equity of the caſe. He ſuffered not juſtice
to be ftrangled in the nets of form. His memory was aſtoniſhing. He
never took notes; or, if he did, feldom had occafion to conſult them *.
His references to expreſſions which fell from himn in the courſe of the debate,
or his quotations from books, were ſo faithful, that they might have been
ſaid to have been repeated verbatin. The purpoſes to which he employed.
theſe amazing talents were ſtill more extraordinary; if it was the weak part
of his opponents arguments, that he referred to, he was ſure to expoſe it's
fallacy, weakneſs, or abſurdity, in the moſt poignant ſatire, or hold it up
in the moſt ridiculous point of view. If, on the contrary, it were a point
on which his adverſaries laid their chief ſtreſs, he ſtated the words correct-
ly, collected their obvious meaning ; conſidered the force of the ſeveral..
arguments that had, or might have been, raiſed upon them, with a pre-
cifion that would induce an auditor almoſt to ſuppoſe, that he had previouſly
conſidered the whole, and that his ſpeech was the reſult of much previous.
confideration.
* See Political Characters, p. 4. 1777-
Nn in
86 It
458
THE LIFE OF
3
“ It may be ſaid of Mansfield, as of Virgil *, that if he had any faults
they might be conſidered in the ſame manner as thoſe of ſome eminent fixed
ſtar, which, if they exiſt at all, are above the reach of human obſervation.
• The luminous æther of his life was not obſcured by any ſhade dark
enough to be denominated a defect. On account of his deſcent, local pre-
judices, and propenſities, were imputed to him, and his conduct on that
account examined with a microſcopic eye: but the optic through which it
was viewed poffefſed a party tinge, equally obvious and deceptive.
“ His political principles were ever conſiſtent, and to preſerve conſiſtency
in ſuch ſtations, and in ſuch times as occupied the life of Mansfield, con-
ſtitute an ordeal ſtrongly iinpreſſive of virtue. It has been ſaid that he
wanted ſpirit. "Is the uniform oppoſition of popular opinion, and apparently
the contenipt of it, any proof of the aſſertion? His fpirited ſpeech and his
conduct in the affair of Wilkes's outlawry, when popular prejudice ran in
torrents, firmly illuſtrate each other.
66 The luſtre of his eloquence was ſomething more than human, and the
firm integrity of the judge was the emanation of a divinity. Here Demof-
thenes and Tully ſhrink from the compariſon-here acknowleged ſuperiority
ſtands confeſſed-here the exulting Britain may exclaim,
" Cedite, Romani-Cedite, Graii !"
“ He deſpiſed (to borrow an expreſſion of his own) that muſhroom-popu-
larity, that is raiſed without merit, and loſt without a crime. He diſclaimed
being the ſlave of popular impulſe, or to acknowlege the ſhouts of a mob
from the trumpet of fame.
“ As a ſpeaker in the Houſe of Lords where was his competitor ? The
grace of his action, and the fire and vivacity of his looks, are ſtill preſent to
imagination, and the harmony of his voice yet vibrates in the ear of thoſe
who have been accuſtomed to liſten to him. His lordſhip poſſeſſed the
ftrongeſt powers of diſcrimination_his language was elegant and perſpicuous,
arranged with the happieſt method, and applied with the utinoſt extent of
human ingenuity-his images were often bold, and always juſt; but the
character of his eloquence is that of being flowing, perſpicuous, convincing,
and affecting.”
* See Burton's character of Claſſical Remains ; tit. Virgil.
" His
I
WILLIAM EARL OF MANSFIELD.
459
“ His genius (ſays a modern writer *) is comprehenſive and penetrating ;
and, when he judges it neceſſary, he pours forth founds the moſt ſeductive,
equally calculated to perſuade and to convince. Among his rare qualifica--
tions (ſays he) "may be added the external graces of his perſon, the piercing
eye, the fine-toned voice, and harmonious elocution, and that happy ar-
rangement which poſſeſſes all the accuracy and eloquence of the moſt la-
boured compoſitions."
Doctor Smollett, in the continuation of his Hiſtory of England,
in noticing the ſupporters of Mr. Pelham's adminiſtration, men-
tions Mr. Murray as intitled to the firſt place in point of genius :
" This gentleman,” he continues, " the ſon of a noble family in North
Britain, had raiſed himſelf to great eminence at the bar by the moſt keen
intuitive ſpirit of apprehenſion, that ſeemed to ſeize every object at firſt
glance; an innate fagacity, that ſaved the trouble of intenſe application ; and
an irreſiſtible ſtream of eloquence that flowed pure and claſſical, ſtrong and
copious, reflecting in the moſt conſpicuous point of view, the ſubjects over
which it rolled, and ſweeping before it, all the ſlime of formal heſitation,
and all the intangling weeds of chicanery."
Biſhop Newton, who was Mr. MURRAY's ſenior at Weſtmin-
ſter, has, in his own Life and Anecdotes, prefixed to his works,
given the following ſummary character of his ſchool-fellow :
“ Lord Mansfield's language was natural and eaſy; his ſpeeches were in a
continued chain of reaſoning, and ſometimes with regular diviſions, ſo that
you eaſily accompanied him and comprehended the whole from the begin-
ning to the end-what he ſaid, as well as his manner of ſaying, was modeſt
and decent, not preſuming and dictatorial. He never deſcended to perſonal
altercations, diſdained to reply even to reflections caft upon himſelf, and in
all things preſerved his own dignity and that of the Houſe of Peers. He
addreſſed himſelf more to your reaſon than to your paſſions : he never courted
popular applauſe ſo much as the approbation of the wiſe and good; he did
* See Royal Regiſter.
Nnn 2
not
t
460
THE LIFE OF
1
not wiſh to take you by ſtorm or ſurprize, but ſought to prevail only by the
force of truth and argument; he had almoſt an immediate intuition into the
merits of every cauſe or queſtion that came before him, and comprehending
it clearly himſelf could readily explain it to others; perſuaſion flowed from
his lips, conviction was wrought in all unprejudiced minds, and for many
years
the Houſe of Lords payed greater deference to his authority than to
that of any man living.”
r
Though laſt, not leaſt in our eſteem, is the delineation of cha-
racter of this illuſtrious perſon, given by the preſent Biſhop of
WORCESTER, in the following eulogy:
« Mr. Murray, afterwards earl of Mansfield, and lord chief juſtice of
England, was ſo extraordinary a perſon, and made ſo great a figure in the
world, that his name muſt go down to pofterity with diſtinguiſhed honor in
the public records of the nation ; for; his ſhining talents diſplayed themſelves
in every department of the ſtate as well as in the ſupreme court of juſtice,
his peculiar province, which he filled with a luſtre of reputation, not equalled
perhaps, certainly not exceeded, by any of his predeceſſors.
66 Of his conduct in the Houſe of Lords I can ſpeak with the more con-
fidence, becauſe I ſpeak from my own obſervation. Too good to be the
leader, and too able to be the dupe of any party, he was believed to ſpeak.
his own ſenſe of public meaſures, and the authority of his judgement was
ſo high, that, in regular: times, the houſe was uſually decided by it. He was
no forward or frequent ſpeaker, but reſerved himſelf, as was fit, for occa...
fions worthy of him. In debate he was eloquent as well as wiſe, or rather
he became eloquent by his wiſdom. His countenance and tone of voice
imprinted the ideas of penetration, probity.,., and candour ; but what ſecured
your attention and affent to all he ſaid was his conſtant good ſenſe, flowing
in apt terms, and in the cleareſt method... He affected no fallies of the ima-
gination, or burſts of paſſion ; much leſs would he condeſcend to perſonal
- abuſe, or to petulant altercation. All was clear candid reaſon, letting itſelf
ſo eaſily into the minds of his hearers as to carry information and conviction :
with it. In a word, his public ſenatorial character very much reſembled
that of Meffala, of whom Cicero ſays, addreſſing himſelf to Brutus, “ Do..
not inagine; Brutus, that for worth, honor, and a warm love of his coun-
try, any one is coinparable to. Meflala ;" ſo that his eloquence, in which he:
wonder
t
WILLIAM EARL OF MANSFIELD.
461
The very affectionate and pathetic addreſs from the bar, ligned
wonderfully excels, is almoſt eclipſed by thoſe virtues : and even in his diſ-
play of that faculty his ſuperior good ſenſe ſhews itſelf inoft; with ſo much
care and ſkill hath he formed himſelf to the trueſt manner of ſpeaking! His
powers of genius and invention are confeffedly of the firſt fize, yet he almoſt
owes leſs to them, than the diligent and ſtudious cultivation of judgement.
“In the commerce of private life lord Mansfield was eaſy, friendly, and
very entertaining, extremely fenfible of worth in other men, and ready on
all occaſions to countenance and patronize it.”
So energetic, and ſo juſt are the tributes of reſpect and venera-
tion, which have been ſpontaneouſly paid by eminent modern
writers.
He retired in 1788 from the diſtinguiſhed office of lord chief:
juſtice of the King's Bench, which he had held more than thirty
years with a reputation and ſplendor unrivalled.
by the counſel who had practiſed in the court of King's Bench
during fome
part of the periods of his preſiding there, which was
tranſmitted to him at Kenwood by.Mr. Erſkine, on his lordſhip’s-
reſignation of the high office of chief juſtice, was to the following:
affect:
“My Lords
" It was our wiſh to have waited perſonally upon your lord-
Thip in a body, to have taken our public. leave of you, on your retiring
from the office of chief juſtice of England; but, judging of your lordſhip’s-
feelings upon ſuch an occaſion by our own, and confidering, beſides, that
our numbers might be inconvenient, we déſire in this manner affectionately
to aſſure your.lordſhip, that we regret, with a juſt ſenſibility, the loſs of
a magiſtrate, whofe confpicuous and exalted talents conferred dignity upon
the profeſſion; whoſe enlightened and regular adminiſtration of juſtice: made
its duties leſs difficult and laborious, and whoſe manners rendered them
pleaſant and reſpectable..
But, while we lament our Toſs, we remember, with peculiar fatisfaction,
that your lordſhip is not cut off from us by the ſudden ſtroke of painful diſ-
temper, or the more diſtreſſing ebb.of thoſe. extraordinary: faculties which
5.
haver
i
462
THE LIFE OF.
have ſo long diſtinguiſhed you amongſt men ; but, that it has pleaſed God to
allow to the evening of an uſeful and illuſtrious life, the pureſt enjoyinents
which Nature lias ever allotted to it. The unclouded reflections of a ſupe-
rior and unfading mind over its varied events, and the happy conſciouſneſs,
that it hath been faithfully and eminently devoted to the higheſt duties of
human ſociety, in the moſt diſtinguiſhed nation upon earth. May the ſea-
ſon of this high fatisfaction bear its proportion to the lengthened days of
your activity and ſtrength!”
To which addreſs lord Mansfield, without detaining the ſer-
vant five minutes, returned the following anſwer :
« Dear Sir,
"I cannot but be extremely flattered by the letter which I
this moment have the honor to receive. If I have given fatisfaction, it is
owing to the learning and candour of the bar. The liberality and integrity
of their practice freed the judicial inveſtigation of truth and juſtice from
many difficulties. The memory of the aſſiſtance I have received from them,
and the deep impreſſion which the extraordinary mark they have now given
me of their approbation and affection, has made upon my mind, will be a
fource of perpetual conſolation in my decline of life, under the preſſure of
bodily infirmities, which made it my duty to retire.
“I am, Sir, with gratitude to you, and the other gentlemen,
“ Your moſt affectionate and obliged humble ſervant,
Kenwood, June 15, 1788.
6 MANSFIELD."
In
WILLIAM EARL OF MANSFIELD.
463
In the ſix preceeding pages the author has indulged the deſire
and almoſt irreſiſtible impulſe of enriching this biographical
work with the glowing tints of ſome celebrated modern writers,
not only with a view to do greater juſtice to the original, to
introduce traits of character vaſtly ſuperior to any thing antece-
dently attempted, but alſo to evince that he has not ſurcharged
his own picture with too much encomiaſtic coloring. He will
now beg permiſſion to reſume his labours by an enumeration of
familiar incidents in advanced age, and by a ſummary reviſion of
this illuſtrious character.
The early maturity of Mr. Murray's mind procured him the
friendſhip and patronage of thoſe who were much older than him-
felf, and the natural eaſe and vivacity of his converſation com-
manded the eſteem of age and experience on the one hand, and
the reverence of youth on the other, to a very late period of his
life. Many inſtances might with facility be repeated, but the
ſelection of a few will probably be deemed ſufficient to illuſtrate
this leading feature in the character of lord Mansfield. This
leſs auguſt yet endearing trait of a good and great man, “chear-
fulneſs in old age.
Sir Thomas Parker, late lord chief baron of the Exchequer,
whoſe name cannot be mentioned without profound refpeet, was
one morning honored with a viſit by the chief juſtice, and when
in eaſy converſe, talking about their venerable ages, Sir Thomas
obſerved, your lordſhip and myſelf are not at fixes and ſevens, but
at ſevens and eights. Lord Mansfield was in fact in his ſeventy-
eighth year, and Sir Thomas in his eighty-feventh. The younger
chief pleaſantly turned the converſation by ſaying, Poh! Sir
Thomas, let you and I talk about the young ladies, and not
dwell on old age.”
Each of theſe venerable chiefs enjoyed in an uncommon degree,
to a very advanced period of life, the greateſt of all bleſſings: Mens
ſana in corpore ſano. It may be deemed worthy of remark, that
each
”
}
464
.
THE LIFE OF
each of them cloſed the ſcene of life in the eighty-ninth year of
- his age, and that if ever the animated picture of an Heathen phi-
lofopher, of the mind of a good man, was applicable to more
than one, the open, intelligent, dignified, yet placid counte-
nance of each of theſe chiefs, was reſpectively a ſair index of
the mind. “ Si nobis animnun boni viri, liceret infpicere, o
quam pulchram faciem, quam ſanctam, quam ex magnifico pla-
cedoque, fulgentem videremus! Nemo illum amabilem, qui non
ſimul venerabilem diceret.”. Seneca.
A few years after lord chief baron Parker had reſigned, and
when he was on the verge of fourſcore, not only full of years,
but alſo happy in the enjoyment of a character, which he well
deſerved, that of an honeſt man, and an impartial judge. His
ſucceſſor, fir Sidney, Stafford Smyth, being unable through ill-
health to attend either in court, or at a meeting of the judges in
Serjeants Inn, on the firſt day of term, when difficult caſes re-
ferred to the conſideration of the twelve judges are generally con-
fidered, lord Mansfield wittily obſerved, “that lord chief baron
Smyth, the ſucceſſor, ſhould reſign to his predeceſſor.” It is ſome.
what remarkable, that, about the ſame period of time, the late
lord Walfingham, who was ſucceſſor to fir Eardley Wilmot, as chief
juſtice of the Common Pleas, was ſo frequently confined by the
gout, and at laſt a martyr to it, as to have given propriety to
the ſame obſervation-of reſigning to his predeceſſor.
Of lord Mansfield's benevolent qualities, if a fair eſtimate is to
be made from his patronizing merit wherever he found it, and
where he had the leaſt reaſon to think that his patronage would
be of real ſervice, his whole life will appear with great luſtre,
exhibiting a regular ſyſtem of general benevolence, an unclouded
effulgence of benignity, and an innate love of conferring favours
on all thoſe, who were zealous to obtain a good report, and who
deſerved it.
nl
WILLIAM EARL OF MANSFIELD.
46;
.
In his judicial capacity it may be affirmed, without partiality or
encomiaſtic hyperbole, that his great outline of conduct as a judge
was to make the rigid rules of law.ſubſervient to the purpoſes of
ſubſtantial juſtice. He was not the firſt who, as ſome have erro.
neouſly alleged, foftened the rigor of law, by the interpoſition of
principles of equity. But, although he did not introduce novelty
by this practice, candor muſt allow that he cultivated and im-
proved this practice more ſucceſsfully, and in a greater degree,
than any of his predeceſſors. He preſided in his high ſtation during
a period of thirty years and upwards, with the dignity of a great
judge, and with an attachment to the court wherein he preſided,
which could not be diſſolved by repeated offers of the cuſtody
of the great ſeal. In many emergencies, and in times of diffi-
culty and danger, he diſcovered an intrepidity of mind, and de-
livered his ſentiments with a decided tone of voice, which at
once commanded admiration, and ſilenced the tongue of male-
volence, not unfrequently apt to attribute to him the want of
firmneſs.
His judgements were introduced with all the embelliſhments
which the law on the ſubject, and which deep learning could
ſupply. His great and unremitted attention, to improve and ren-
der plain and perſpicuous the rules of the court wherein he pre-
ſided, will be acknowledged and revered as long as the rules
themſelves or the love of good order ſhall exiſt in our excellent
conſtitution. And, in fine, if he has left the practice of the
higheſt court of judicature yet improvable, it muſt be allowed,
that he has left the rules and orders of that court replete with
ſo much excellence, that they cannot fail to prompt his ſucceſ-
fors to emulate him, and to make farther improvements.
In his invaluable and inſtructive letters to the late duke of
Portland, on the ſtudy of antient and modern hiſtory, he re-
commends for the ſtudy of modern hiſtory, the beſt writers of
the Hiſtory of France, as the Alpha, of his ſtudy. It is therefore
ооо
leſs
466
THE LIFE OF
leſs to be wondered, that the French Revolution, ſhould have
made a deep impreſſion on his inind, at the very
advanced
age
he had attained, when his friend and phyſician Dr. Turton at-
tended him at Kenwood about this period. Here the phyſician
was diverted from his attention to his patient's health by lord
Mansfield's turning the ſubject, and humourouſly ſaying, “in-
ſtead of dwelling on an old man's pulſe, let me aſk you doctor,
what
you
think of this wonderful French Revolution.” The mo-
deſt anſwer was, - it is more material to know what your lord-
ſhip thinks of it."
Lord Mansfield, without the leaſt interval of ſuſpenſion,
began :
My dear Turton, how can any two reaſonable men think differently on
the ſubject. A nation which, for more than twelve centuries, has nade a
conſpicuous figure in the annals of Europe. A nation where the polite arts
firſt flouriſhed in the Northern Hemiſphere, and found an aſylum againſt
the barbarous incurſions of the Goths and Vandals. A nation whoſe philo-
ſophers and men of ſcience cheriſhed and improved civilization, and grafted
on the feudal fyſtem, the beſt of all ſyſtems, their laws reſpecting the de-
ſcents and various modifications of territorial property. To think that a
nation like this ſhould not, in the courſe of ſo many centuries, have
learned ſomething worth preſerving, ſhould not have hit upon ſome little
code of laws, or a few principles ſufficient to form one. Ideots! who in-
ſtead of retaining what was valuable, ſound, and energetic, in their conſti-
tution, have at once funk into barbarity, loſt fight of firſt principles, and
brought forward a farrago of laws fit for Botany Bay! It is enough to fill
the mind with aſtoniſhment and abhorrence ! A conſtitution like this may
furvive that of an old man, but nothing leſs than a miracle can protect, and
tranſmit it down to poſterity !”
Their own celebrated M. de Monteſquieu inculcated better
advice. In ſpeaking of Gothic government he obſerved,
66 Il fut d'abord mêlê d'ariſtocratic & de la monarchie. Il avoit cet in-
convénient
que le bas peuple y étoit eſclave ; c'étoit un bon government qui
avoit en foi la capacité de devenir meilleur,” Lib. II. c. 8.
4
The
+
WILLIAM EARL OF MANSFIELD,
467
!
The defect in the old conſtitution was here clearly pointed out,
and the alluſion to a better conſtitution is too perſpicuous to
be ſilently paſſed over.
The inherent power of forming a third eſtate which our an-
ceſtors have happily and ſucceſsfully exerciſed. The long and
uninterrupted enjoyment of that vigorous, mixed, and better
government, to which the author of the ſpirit of laws alluded,
and which conſtitutes the palladium of our happy conſtitution,
ought to be revered by every good citizen of the preſent genera-
tion, and by grateful poſterity, as the greateſt of all bleſings !
The pleaſing and unremitted attention of lord Mansfield to
the happineſs of his relatives, and to the comforts of his do-
meſtics, ſome of whom grew grey in his ſervice, cannot be ex-
hibited in a clearer or more pleaſing light than in his will, dated
the 17th of April, 1782, and in nineteen codicils, ſome of which
conſiſt only of two or three lines, and all of which were made
from time to time through a period of twenty years, as occaſion
required.
We ſhall here find the noble ſuperſtructure of purity and ex-
cellence raiſed on the ſolid foundation of philanthropy, grati-
tude, and benevolence.
In his will, the great lord chief juſtice aſſumes a new character,
with as much facility, as he diveſted himſelf of his legal robes ;
he ſeems to have laid aſidè every legal fubtilty, every nice diſcri-
mination. He who had always been in the habits of deciding
important queſtions, ſpringing out of intricate deviſes, con-
ditions, and contingencies, in wills. He who, with great accu-
racy and abilities, had been accuſtomed to circumſcribe the
bounds in limitations or bequeſts of real and perſonal property,
by defining, like an all-feeing judge, 66 Thus far ſhalt thou go,
and no farther.” When the hour of fober reflection prompted
him to ſit down and make his laſt teſtament, he began piouſly
and affectingly with the feelings of a Chriſtian, and the ſimpli-
city
O.OO 2
468
THE LIFE OF
)
city of a ſcholar, “Whenever it ſhall pleaſe Almighty God to
call me to that ſtate to which, of all I now enjoy, I can carry
only the fatisfaction of my own conſcience, and a full reliance
upon his mercy, through Jeſus Chriſt.” Every idea of the in-
tricate machine of a diviſe-ſettlement (as he was pleaſed to call
it) was effaced from his mind, or lulled to a temporary repoſe.
One leading feature alone predominates, pervades the whole, and
narks the noble ſimplicity of plain, conciſe, and unfettered de-
viſes and bequeſts. If any comment on a will, which is as clear
as the noon-day ſun, can be pardoned, it is that only, which is
plain, and fo ſelf-evident, that he who runs, may read.
S.
Thoſe who are deareft * and neareſt to me beſt know how to manage
and improve, and ultimately in their turn, to divide and ſubdivide the good
things of this world, which I commit to their care, according to events and
contingencies, which it is impoſſible for me to foreſee, or trace through all
the mazy labyrinths of time and chance.
To his other relations, whoſe lives had been in a great de-
gree devoted to promote his happineſs, whoſe fedulous care,
and exemplary conduct were the folace of his old
his old age, he is
gratefully munificent. Of one, who through a period of forty
years had ſerved him with fidelity and zeal. The noble Donor,
who beſt could tell, has enumerated many important ſervices
rendered at different and diſtant periods of his life, and thereby
faid the foundation of remunerating them from time to time, in
a ſtyle fully and forcibly expreſſive of gratitude and munificence.
The manner of giving in theſe inſtances ſeems to have en-
* Sic tranſit gloria mundi. A few, very few, years flitted over the head of
this deareſt relative before he was, in his turn, not only called upon to ex-
erciſe his diſcretion in obedience to the requeſt of his venerable uncle, but
alſo to pay the great debt of nature .
hanced
I
WILLIAM 1
469
EARL OF MANSFIELD.
1
hanced the value of the gift, and to have at once reflected ho-
nor, on the giver and receiver.
In the various codicils to his will, all of his own hand-writing,
as long as he was able to write, many fine inſtances might be
enumerated, which could not fail to impreſs the reader with the
deep ſenſe of a diſcriminating and grateful teſtator. Suffice it
to add, that the prominent feature of theſe numerous teſtamen-
tary ſupplements ſeems to be, that of raiſing the different degrees
and denominations of his faithful domeſtics, one degree, at the
leaſt, above ſervitude ; ſince moſt of them who were ſingle, have
comfortable proviſion, by annuities, for their lives ; and others,
who were married, are enabled by ſpecific donations to ſettle in
buſineſs, or ſit down contentedly with a decent competency. It
is much to be lamented that the luſtre of the fineſt parts is fre-
quently tarniſhed by avarice in old age; yet the curious reader,
by examining the will and codicils of the earl of Mansfield, will
not from theſe premiſes, be induced to draw a concluſion, un-
favourable to the cauſe of liberality, the calls of humanity, or
the feelings of a grateful heart.
Some there are who will take away from, or diveſt teftamentary
donations of all kind of merit, on the ſcore of a man's giving
that to another which he cannot himſelf enjoy any longer. Cha-
racters like theſe, who are ſo thrifty of praiſe, will be diſpoſed to
aſk, how did his lordſhip manage his ample fortune while he
lived? To theſe, the author begs leave to anſwer—not in pur-
chaſing large domains-not in being a great ſtockholder ; but in
lending his money on real ſecurities, or by way of mortgage, at
fair and moderate intereſt. A declaration has frequently been af-
cribed to him, in the public prints, that when his gueſts expreſſed
furprize that he did not buy more land, or ſpeculate with his large
fortune in the funds; his lordſhip, as has been aſſerted, an.
ſwered:
* The
470
THE LIFE OF
" The man who buys land has principal without intereſt; while he wlio
lays out his fortune in the funds has intereſt without principal.” But the
author can, from the beſt authority., ſay, that his lordſhip diſavowed his
having made any ſuch anſwer or declaration."
The inſtances wherein he manifeſted his approbation of mode-
rate intereſt on mortgages are not a little curious. . Upon the
fame eſtate and in money-tranſactions with the ſame land-owner,
he had ſometimes, of his own choice, different rates of intereſt,
for which he aſſigned the following reaſon : That he ſhould deem
it harſh to raiſe, in time of war, or national diſtreſs, an old
mortgage to five per cent. but if the mortgagor was ſo bad a ma-
nager as to want more money at ſuch a period, he muſt pay the
intereſt of the day, that is, legal intereſt for it, although he paid
leſs for the other. Thus à good old ſecurity was reſpectfully
treated, like one of his good old ſervants !
But this is not all; many years ago application was made to
him for the loan of a large ſum of money to pay off a mortgage
originally made by a nobleman to ld W. M
to the
principal and intereſt of which his immaculate ſon J. M. eſquire,
of famous memory, became intitled, An introduction to the
latter was of dangerous tendency, ſo accommodating and atten-
tive was he at all times and ſeaſons, “ Noctes atque dies patet atri
janua ditis.” His door inſtantaneouſly flew open, to relieve the
wants and diſtreſſes of young men of faſhion and large fortunes,
whoſe prudence happened to be diſproportionate to their fortunes,
and who thought too favourably of the terms on which loans from
this Gamaliel of goodneſs were obtained. In his own phraſe he
began with his young friends gently, in half and half, that is, by
advancing half at legal intereſt, on good ſecurity, and the other
on annuities at ſix or ſeven years purchaſe, which, on an average,
produced a temporary income of ten per cent. or thereabouts.
Many, too many, volatile and unthinking young men of family
and
1
WILLIAM EARL OF MANSFIELD.
471
and fortune have ſeverely felt the dire effects of a corroding can-
ker-worm of this nature. To relieve from ſuch imminent danger
lord Mansfield was, on this and various other occaſions, gene-
rouſly diſpofed ; but the Herculean taſk of fubduing the Gamaliel
J. M. who lamented that he was in danger of loſing a fine har-
veſt, remained to be accompliſhed. Requiſition being made to:
him for a copy of the abſtract of title to lay before lord Mans-
field's counſel, introduced a conference between Mr. J. M. and
his counſel perfectly novel.
The client anxiouſly deſired an opinion of his counſel, how far.
the law would protect him in keeping his iron-cheft
. locked, and
in refuſing to produce any evidence of title whatever, becauſe
fuch production would be injurious in the extreme to his future
ſchemes of drawing on the young nobleman by degrees till he had
got him completely into his toils.
The anſwer was, that no gentleman ever refuſed to comply
with a requiſition of that kind. “Sir, replied the client, you
forget the queſtion put to you. I aſk you again and again, how
far will the law protect inė in the refuſal ?" Delighted with the
anſwer, that the law would protect him, if he fate on his iron-
cheſt, till the principal and intereſt was tendered to him, he with-
drew, and determined to take his feat accordingly. So Richard,
the ſon of the great uſurper Cromwell, entertained himſelf pri-
vately at Hoddeſdon in Hertfordſhire, crying out; “ Here I ſit on
the lives and fortunes of all the good people of England,” mean-
ing the addreſſes preſented to Cromwell and hiinſelf.
The triumph of the mortgagee was not of long continuance:
The curious conference in Lincoln's Inn between, Mr. J. M. and
his counſel having been related to lord Mansfield, he obſerved,
with great ſeriouſneſs and dignity, that he now faw more clearly
the propriety and the merit of the efforts, to extricate the bora
tower, from the iron-hand, as well as the iron-cheſt, of the
lender
472
THE LIFE OF
lendermathat the counſel and friend of the former ſhould not be
diſappointed, if he could, from his knowledge of the nobleman's
ſituation, ſay, that the large fum might be ſafely advanced for a
ſhort period, on a fimple bond, until a proper ſecurity could be
prepared. Armed with this generous ſupply the parties met, the
bank-notes were placed on the table, when the diſappointed poor
mortgagee objected to the tender ; but, ultimately, on being told
hę might fit on his iron-cheſt, remain a priſoner in his own
houſe till ſterling coin from a banking houſe was produced and
a legal tender made, the ſtrong box was relunetantly opened ;
the title-deeds, with ſtill greater reluctance, were reſtored ; and
in the act of reſtitution, the mortgagee ſeemed to cry, like the
Moor in the Merchant of Venice, “ Alas! Othello's occupa-
tion's gone!”
The merit of this ſignal ſervice of the temporary loan of a large
fum on bond was greatly enhanced by its being lent to a gentle-
man of whom lord Mansfield had very little perſonal knowledge.
So the wine and oil adminiſtred to the wounded man in facred
hiſtory, who had the misfortune to fall among robbers, were
more meritorious acts of beneficence, and, as it were, a miracle
of mercy, by their having been conferred on a ſtranger.
In fine, The ſummary of lord Mansfield's legal and private
character may be given in few words.
In all he ſaid or did there was a happy mixture of good-nature,
good-humour, elegance, eaſe, and dignity. His countenance
was moſt pleaſing, he had an eye of fire, and a voice perhaps un-
rivalled in its ſweetneſs, and the mellifluous variety of its
tones.
His intuitive and acquired knowlege of men and things ſoon at-
tracted the attention, and procured the good opinion of the citi-
zens of London and Weſtminſter, ſo as to induce them to inſtitute
their fuits of different denominations in the court wherein he pre.
fided.
His
WILLIAM EARL OF MANSFIELD.
473
1
He excelled in the ſtateinent of a caſe. One of the firſt
orators of the preſent age ſaid of it, “that it was of itſelf worth
the argument of any other man. He diveſted it of all un-
neceſſary circumſtances; he brought together every circumſtance
of importance; and theſe he placed in ſo ſtriking a point of
view, and connected them by obſervations ſo powerful, but which
appeared to ariſe fo naturally from the facts themſelves, that fre-
quently the hearer was convinced before the argument was
opened. When he came to the argument he ſhewed equal abi-
lity, but it was a mode of argument almoſt peculiar to himſelf.
His ſtatement of the cafe prediſpoſed the hearers to fall into the
very trażn of thought he wiſhed them to take when they ſhould
come to conſider the argument. Through this he accompanied
them, leading them inſenſibly to every obſervation favourable to
the concluſion he wiſhed them to draw, and diverting every ob-
jection to it; but all the time keeping himfelf concealed, ſo that
the hearers thought they formed their opinions in conſequence of
the
powers
and workings of their own minds, when, in fact, it
was the effect of the moſt ſubtle argumentation and the moſt re-
fined dialectic.
His legal knowlege and profound ſagacity, not only promoted,
but effectually ſecured, through a long ſeries of years, that ama-
zing increaſe of buſineſs in the court of King's Bench which dig.
nified his high office, and diffuſed opulence among the different
officers of his court, and all around him.
Conſidering his lordſhip's deciſions feparately, it will appear
that, on all occaſions, he was perfectly maſter of the caſe before
him, and apprized of every principle of law, and every adjudi-
cation of the courts immediately, or remotely applicable to it.
Conſidering them collectively, they will be found to form a com-
plete code of juriſprudence on ſome of the moſt important
branches of our law: a ſyſtem founded on principles equally libe-
sal and juſt, admirably ſuited to the genius and circumſtances of
the
PPP
474
THE LIFE OF
the age, and, happily blending the venerable doctrines of the old
law with the learning and refinement of modern times; the work
of a mind nobly gifted by nature, and informed with every kind
of learning which could ſerve for uſe and ornament.
His great wiſdom ſhed an uncommon luſtre over his admoni-
tions, his advice, and his deciſions in the public courts, and gave
them their due weight. All he ſaid and did will be held in de-
ſerved admiration, as long as the love of our excellent laws, as
long as the improvement of juriſprudence, and the power of elo-
quence, ſhall be deemed worthy of pre-eminence, or have any
charms to pleaſe.
The author has not preſumed to give his lordſhip's political
character. More years muſt elapſe, and party-prejudices be laid
aſide, before his abilities, principles, and actions as a ſtateſman,
can be properly appreciated. His eminence as a lawyer has been
already ſtated, and univerſally acknowledged. He therefore begs
leave briefly to confine himſelf to a few traits, which eminently
diſtinguiſhed his lordſhip in private life, where he ſhone, if poſ-
fible, with greater: luſtre than in the more elevated departments
of a ſtateſman and a judge.
Few noblemen have had that happy method of combining dige
nity with wiſdom, and liberality with frugality, equal to lord
Mansfield. Every thing in and about his manſion had the apa
pearance of ſplendor and plenty; without that ſhow of oſtentation
and waſte, which diſguſts every ſenſible mind; and which, at the
fame time it gives an idea of the wealth, ſtrikes. us with the follý
of the poffeffor. By his ſervants he was conſidered rather, as a .
father and patron than a maſter.: many of them lived with him
ſo many years that they were fit for no other ſervice'; and
peace,
plenty, and happineſs, were depicted in the countenance of
every
domeſtic. His lordſhip’s charities, which were infinitely more
extenſive than is generally imagined, were given away and dif-.
fuſed with good ſenſe and nobleneſs of mind rarely equalled ; fixa
pences,
5:
1
WILLIAM EARL OF MANSFIELD.
475
pences, ſhillings, and half-crowns, he ſeldom conferred, conli-
dering ſuch ſums as doing no real good, as the object ſo relieved
would, on the day following the donation, be equ lly diſtreſſed
as on the day preceding it; but, when by ſums of ten or twenty
guineas he could relieve the virtuous and neceſſitated from ein-
barraſſments by debt, by ſickneſs, or otherways, and put them in
a way to provide for themſelves and families, he did it chearfully,
and with that eaſe and good nature, which, inſtead of wounding,
encouraged the feelings of the receiver, and always, if poſſible,
with ſuch fecrecy and quietneſs as if he would not have his left
hand know what his right hand did. Although his lordſhip's
powers in converſation were uncommonly great, yet he never af-
ſumed a more than equal ſhare of it to himſelf, and was always
as ready to hear as he was to deliver an opinion. The faculty
of converſing with eaſe and propriety he retained to the very
laſt; and he was as quick át reply in his látter years as at any
period of his life : whether he ſupported his own arguments, or
refuted thoſe of his adverſary, his obſervations were delivered
with that judgement and grace which evinced the preciſion of a
ſcholar and the elegance of a gentleman. He was a ſincere Chriſ-
tian without bigotry or hypocriſy, and he frequently received the
facrament, both before and after he ceaſed to leave home; and
there was conſtantly that decorum, that exemplary regularity to
be ſeen in every department of his houſehold, which would have
done credit to the palace of an archbiſhop.
Such were the virtues, ſuch the endowments, and rare qualifi-
cations, which pervaded, cheriſhed, and adorned his private life.
Theſe he fedulouſly cultivated and diſſeminated through a long
life. How powerful was their coincidence, how happy their
effects !
The late Mr. Madan, in a neat eulogy of four lines, has ma-
nifeſted his ſenſe of the vigor of his lordſhip's mind on the verge
of old age as well as in the meridian of life :
Ppp 2
66 Inter
476
THE LIFE OF
i
- Inter mortales vetus eft vox veraque fæpe
" Bis ſunt infantes, qui ſenuere ſemel ;
5* At te luftrantes juvenemque fenemque fatemur
" Te femel infantem, bis nïtuiffe virum.”
The beautiful apoſtrophe of lord Monboddo, to which the
author has alluded in the commencement of this work, remains to
be placed in a proper light. The ſcientific lord of ſeſſions having
expatiated on the perfect model of eloquence, on which lord
Mansfield formed a chaſte and correct ſtyle of ſpeaking, ſuitable
to the buſineſs of a judge, to whom it belonged not only to de-
termine controverſies betwixt man and man, but to ſatisfy the
parties that they have got juſtice, and thereby give eaſe and con-
tentment to their minds; and, having illuſtrated by a familiar:
example, within his own knowlege, that lord Mansfield was ſo
fucceſsful in this reſpect, that even the loſing party commonly
acknowledged the juſtice of his decrees, the apoſtrophe thus :
commenced :-
“ Having ſpent fo many years of your life, more I believe than any other
man of this age, in the adminiſtration of juſtice, with ſo much applauſe and
public ſatisfaction, I hope; my lord, you will bear with patience and reſig-
nation the infirmities of old age ;: enjoying the pleaſure of reflecting, that
you have employed ſo long a life ſo profitably in the ſervice of your
country. With ſuch reflections, and a mind ſo entire as your's ſtill is, you
may be ſaid to live over again your worthy life, according to the old.
ſaying:
boc eſt
- Vivere bis, vita polje priore fruii”.
** That you may live this life as long as you retain a mind capable of en
joying it, and without pain of body, ſuch as would diſturb that enjoyment;
is tlie earneſt wiſhi of all your friends, and of none more than the author of
this work : for, in the midſt of all your great public occupations, you have.
always found time to cultivate private friendſhip; and I believe no man
living has enjoyed more the two greateſt pleaſures of human life, that of
loving and being loved.”
Soon:
CC.
WILLIAM EARL OF MANSFIELD.
477
Soon after the publication of Mr. Burke's celebrated book on
the French revolution, lady Anne, then the honourable Miſs Mur-
ray, aſked a gentleman the meaning of the word plephiſmata,
which occurs in the 3c5th page of that work, who replied, that
he, in a hurry, as he rode along, had read it sophiſmata; but it
was probably a word itſelf, which he did not immediately recol-
lect. Lord Mansfield, having indiſtinctly heard the queſtion,
deſired to know what the word was ; and, upon being informed,
ſaid pſephiſmata is right; but I do not at preſent recollect it; and
then, without the leaſt pauſe, faid, I have it; and not only ex-
plained its meaning with critical accuracy, but quoted off hand a.
long paſſage froin Demoſthenes to illuſtrate it. His lordſhip was
then, in the 86th year of his age..
The following note, dictated by lord Mansfield, may be ad-
duced in proof of his lordſhip’s cultivation of private friendſhip,
and of his aſtoniſhing retentive memory, in his 8.7th year:-
Lord Mansfield ſends his compliments to Mr. and returns him
many thanks for the perufal of his four letters ; which are herewith returned :
thcy very clearly ſhew the evil, and the remedy. If Mr. --'s other great:
buſineſs can permit him to act as a magiſtrate, the weight of his example will
be a public:bleffing. Lord Mansfield thinks Mr. Juſtice Buller, upon the
weſtern circuit, gave an excellent charge to the effect of theſe letters."
7
But, a!as ! all the fair fame attendant on his powerful elo.
quence, which ſeldom failed to ſhed its luſtre, and to give dig, -
nity to his legal character-all the ſerenity which fate upon his :
brow-all the complacency which beamed in his countenance.:
and adorned private life--muſt now.live only in the remembrance,
in the grateful remembrance, of his friends--all the honors which:
he fo juſtly merited, and long enjoyed the ſole reward, be it re-
membered, which he could be induced to accept from the foun--
tain of all honour, muſt be transferred from his. TEMPLES to.
his TOMBS
We
4;8
THE LIFE OF
We are arrived at a period which is in general painful to re-
late—the laſt hours of a great man! or of a real friend! yet, when
we calmly conſider the very advanced age of lord Mansfield, and
the whole tenor of his long life, we may fairly draw this conclu-
fion, that for once death had loſt its ſting, and was no longer to
him a king of terrors.
In
many conferences with his friend and phyſician Dr. Turton,
during the three or four laſt years of the earl's life, his lordſhip
had obſerved, how hard it was, that an old man, on the verge
of fourſcore and ten years, could not be permitted to die quietly.
To ſelect a more ſtriking inſtance, a few years before his deceaſe,
he lay for a time in a ſtate of infenſibility ; by means of bliſters,
and other phyſical efforts, returning life enabled him to chide
his phyſician, by aſking a queſtion equally uncommon and'unex-
pected—“Why did you endeavour to bring me back when I was
ſo far gone in my journey?"
Early in March, 1793, lord Stormont, having occaſion to con-
ſult his uncle on a law-caſe then depending in the Houſe of Lords,
ſaid his ideas and recollection were perfectly clear.
On Sunday, March the joth, his lordſhip did not talk at break-
faſt as uſual, but ſeemed heavy, and complained of being very
ſleepy, and his pulſe was low; volatiles and cordials were ordered
for him, and cantharides were applied to his iſſues. On the
Monday he ſeemed rather better. On Tueſday morning he deſired
to be got up and taken to his chair ; but foon wiſhed to be put
to bed again, and ſaid, “ Let me ſleep-let me ſleep.” After
this he never ſpoke. On his return to bed he ſeemed perfectly
eaſy, breathed freely and uninterruptedly like a child, with as
calm and ſerene a countenance as in his beſt health, and had a
good pulſe, but was clearly void both of fenſe and ſenſibility. A
bliiter was applied to the arm, which it affected no more than it
would any inanimate ſubſtance.
inanimate ſubſtance. Scotch ſnuff was inſerted into
the noſtrils by means of a feather, without the leaſt effect. Some
attempts
WILLIAM EARL OF MANSFIELD.
479
attempts were alſo made to get nouriſhment down by means of a
ſpoon, but to no purpoſe ; and, as the laſt attempt had nearly
choaked him, it was deſiſted from, and his mouth was afterwards
merely moiſtened by a feather dipt in wine and water. In this
ſtate his lordſhip continued without any apparent alteration, ſome
ſymptoms of the vital ſpark remaining, yet glimmering faintly,
till the morning of Monday the 18th, when there was an appear-
ance of mortification on the part moſt preſſed by lying, and his
pulſe began to beat feebly. Fears were now entertained that he
ſhould awake to miſery, which he fortunately did not ; but con-
tinued to ſleep quietly till the night of Wedneſday the 20th,
when the lingering dying taper was quite extinguiſhed. He.ex-.
pired, without a groán, in the 85th year of his age; cloſing a.
long life of honor to himſelf, and great uſe to-fociety, in a way
the moſt to be defired; and it may be ſaid of his lordſhip, as it
was of king David *,, that he died in a good old age, full of days,
riches, and honor.
His lordſhip, though never afraid of death, towards which he
always looked with compoſure and confidence, was always afraid
of ſuffering pro formâ, as he expreſſed it'; and, a few years before.
his death, he, with great earneſtneſs, exacted a ſolemn promiſe.
from the phyſician who attended him, that he would never une
neceſſarily: torment him, but that, when he from experience ſhould
think his time was come, he would let him die quietly..
His lordſhip having paid every grateful tribute to Weſtminſtera
ſchool in his life-time, where he received his education, his
pron
found reſpect for alma mater, dictated the direction in his will,
that his remains ſhould be depoſited there ; and accordingly, on
the 28th of Marchi,.. about" nine in the morning, he was interred
in the ſame. vault with his late counteſs, in Weſtminſter-abbeya.
Nil ortum tale!.
.
* 1 Chron:.xxix. 28 -
..
They
!
480
THE LIFE OF
:
The following grateful efforts tending to embalm the memory
of this truly-great man deſerve to be recorded
Alexander Baillie, Eſq. who ſome years ago left fifteen hundred
pounds for a monument to the late earl (by whoſe ſuperior pro-
feſſional abilities Mr. Baillie had become poſſeſſed of a conſidera-
ble diſputed property), left alſo a certain ſum as a premium for
the perſon who made the beſt inſcription for it: whoever writes
the epitaph for it ſhould moſt peculiarly inſiſt upon his lordſhip’s
having been the founder and author of the preſent fyftem of
commercial law in this kingdom. Our old law was framed when
we had no commerce ; the venerable fage ſuited, as well as he
could, the rules of it to our improved ſtate of commerce ; and,
when they could not apply, he, from the experience of merchants
whom he conſulted, and from his own fagacity, framed others.
In the annals of hiſtory where :ſhall we find two concurrent in-
ſtances of this nature ?
An EPITAPH, by Mr. David Rees, ſtands at preſent in high
eſtimation :
... Sacred to the memory of
WILLIAM MURRAY, earl of Mansfield,
late Lord Chief Juſtice of England,
:who, during a courſe of thirty years and upwards,
not only diſcliarged the duties of that high office
with unexampled affiduity
and unqueſtionable reputation ;
but, happily uniting
the wiſdom of Socrates,
the eloquence of Cicero,
the harmony of Virgil,
and the wit and pleaſantries of Horace,
with the beauties of his own unbounded genius,
became, and was confeffedly,
the brighteſt ornament of human nature
that any age or country has hitherto
been
1
$
WILLIAM EARL OF MANSFIELD.
481
1
been able to boaſt of.
The venerable peer,
having paſt the age of fourſcore,
and finding his corporeal powers too feeble
much longer to diſplay his
wonderful talents
with their wonted energy,
withdrew himſelf from the bench,
and, willing to appear with thoſe talents
undiminiſhed at the throne of his
DIVINE CREATOR,
by whom he had been ſo peculiarly and
abundantly endued,
ſhook off the clog of mortality
· in his 8gth year :
And, as an eaglė, wing'd his airy flight,
Thro' death's pale ſhade and all-ſurrounding night,
Up to the happy realms of everlaſting light;
Where, welcom'd by. the ſocial powers divine,
Freely with them he drinks celeſtial wine;
While here Philoſophy remains to mourn:
Her favorite fled fled never to return,
Until his God ſhall, at the judgement-day,
With his bright ſoul re-animate his clay,
And both with him to dwell, from hence to heaven convey.'
}
Mr. Flaxman, jun. lately returned to his native country from
Rome, is the fortunate artiſt to whom application has been made
for a monument, purſuant to the directions for that purpoſe con-
tained in the will of. Mr. Baillie. This magnificent work is
already in a great degree of forwardneſs. The buſt of the noble
earl, by..Nollekens, in Trinity-Hall, Cambridge, having been
much admired, the public will therefore receive, with pleaſure,
the additional information of a plaſter caſt of this buſt, being
permitted to be taken, for the uſe of, and to raiſe laudable emu--
Q.9.9.
lation
482
THE LIFE OF
lation in the breaſt of Flaxman, who will indiſputably exert every
effort of his chiſel, and of genius, to make the three prominent
figures of Lord Chief Juſtice Mansfield, of Wiſdom, and of Juf-
tice, truly characteriſtic, animated, and worthy of the great
design!
The following lines may poſſibly be deemed worthy of being
inſerted at the concluſion of the preſent work.
Near the fam'd dome where kings and princes fleet
Here Murray fow'd the feeds of ſcience deep;
Wiſdom with rapture ſaw her ſon preſide,
The ſoul of Commerce, and the nation's pride :
While years revolving-meliorate the plan,
Astrea, pleas'd, immortalized the man,
Effulgent in the realms of bliſs to ſhine,
Pure emanation from the rays divine
.
ADDENDA.
WILLIAM EARL OF MANSFIELD
483
A D D E N D A.
:.
In the preſent biographical work, the deſideratum of bring-
ing to light the ſpeech, made by Mr. Murray (his majeſty's ſo-
licitor-general) before the lords in council in 1753, to which
reference has been already made in page 103, and alſo the pro-
duction of the literary curioſity of a ſermon compoſed on a pub-
lic occaſion, not by a ſpiritual, but by a temporal lord, have
probably been looked for with ſome anxietude by the curious
reader. In conſequence of very minute enquiries, and of ſome
recent and liberal communications, not only from a noble fa-
mily, but alſo from gentlemen in high official lines in general,
and from Charles Butler, Eſq. of Lincoln's Inn, in particular,
the author feels a fincere ſatisfaction in not being under the dif-
agreeable neceſſity of diſappointing the reader's reaſonable ex-
pectations.
On the firſt head of enquiry, he is bound, by every tie of gra.
titude, to make his beſt acknowledgements to a noble earl for
another pleaſing inſtance of his lordſhip’s liberal ſpirit, who
(as Mr. Hargrave has neatly and correctly obſerved in his preface
to the 13th edition of the Commentary upon Littleton)
- bas
ever diſtinguiſhed himſelf as a zealous encourager of under-
Qqq 2
takings
484
THE LIFE OF:
takings having the leaſt tendency to promote ſcience and
learning."
The
papers
wherewith the author has been very recently ho-
nored are inſcribed, “ An Account of the Enquiry in February,
1753,
before the C—C into the charge brought by lord Ra-
venſworth againſt the Biſhop of Glouceſter (Johnſon), Mr.
Stone, and Mr. Murray, Solicitor-General.”
They purport to have been committed to writing from me-
mory by a nobleman, a near relation of the noble earl, who had
ſeen all the papers relating to this affair. The exculpation of
biſhop Johnſon having been correctly ſtated in the firſt diviſion
of this work * need not be reſumed or repeated.
Mr. STONE was next admitted to make his defence, and had
copies of examinations and letters which had been laid before
the lords the preceding evening. He brought ſome obſervations
in writing on the uncertainty and inconſiſtencies of Mr. Faw-
cett's evidence, and made a ſpeech ſetting forth his ſteady loy-
alty and zeal in his majeſty's ſervice, for which he appealed to
the noble duket, under whoſe eye he had the happineſs to ſpend
many years of his life, and proteſted, that if it could be proved
againſt him, that he had ever been preſent at the drinking of a
treaſonable health, within the compaſs of even thirty years, he
would admit the whole charge. He produced as evidences in
his favor Mr. Cazley (formerly conful at Cadiz, and a relation of
Mr. Vernon) and the biſhop of St. Afaph. They both ſwore
that they did not believe Mr. Vernon to be a diſaffected perſon,
and
gave him the character of a religious diſcreet man, who
had taken the oaths to the government, and therefore incapable
of ſuch a behaviour as toaſting diſaffected healths.
* Vide antea, p. 103 and 104.
me The duke of Newcaſtle.
The
1
WILLIAM EARL OF MANSFIELD.
485
The laſt perſon who made his appearance, during the courſe
of the enquiry, was Mr. Murray, who deſired leave before the
cloſing of it, to ſpeak a few words for himſelf. The purport of
his ſpeech, which was expreſſed with elegance, and conſidered
with care, was to repreſent himſelf as having been well affected
to the preſent eſtabliſhment, ever fince he could think at all on
the ſubject ; that when he firſt went to Oxford he took the oaths
to the government, and did it with ſeriouſneſs. That, when he
pleaded at the bar of the Houſe of Commons, he had ſtudiouſly
profeſſed the principles by which it is ſupported. That he had
determined never to come into parliament but on whig connec-
tions, and in office, and that it was not to be ſuppoſed, that a
perſon of ſir John Strange's well-known loyalty would have re-
figned to him, if he had not been thoroughly convinced of his
ſincerity. That ever ſince he had been in the King's ſervice he
had got nothing by his employment (he ſpoke it not by way of
complaint) but the ordinary perquiſites of it, and had never re.
commended any friend of his own to preferment. That he had
not been able to learn any objection to his conduct without
doors, but the not having loaded the rebels with reproachful
epithets, as if epithets would have added to their guilt. That
he did not think ſuch ſort of language would be agreeable to his
royal maſter, and that, had he been employed for the crown
againſt fir Walter Raleigh, and that unfortunate perſon had
been as guilty of high treaſon as the rebels, he would not have
made ſir Edward Coke's ſpeech againít him, for his eſtate. Mr.
Solicitor concluded by acknowleging the indulgence of the lords
in hearing him, and the juſtneſs and goodneſs of the king, who
would not fuffer his ſervants to be ſtabbed in the dark, but gave
them an opportunity of clearing their innocence. He afterwards
took his voluntary oath, as the others had done, and gave a
particular anſwer to every part of the charge, denying that he
had ever been preſent at Mr. Vernon's when treafonable healths
were
486
THE LIFE OF
?
were drunk, under any denomination, and that he believed him
incapable of ſuch behaviour.
Upon the whole matter the lords came unanimouſly to an opi-
nion of reporting to the king, that there appeared to them no
foundation for any part of the charge, and conſequently that
it ought not to affect the character of the biſhop, or of either
of the gentlemen who were aſperſed by it.
In a comprehenſive, analytical, and literary view, the acqui-
fition of the heads of this celebrated ſpeech is valuable, iş
great, yet the author has to regret that no induſtry, on his
part, has hitherto been ſucceſsful in procuring an authentic
copy of the original. He does not, however, by any means
defpond. His ſucceſs in recovering the ſermon which, as a li-
terary curioſity, is here fubjoined, and the reſearches for which
had long baffled all the repeated efforts of the late earl of
Mansfield to recover, who was indefatigable in his reſearches
for
any document, which might reflect honor on the memory
of his celebrated anceſtor-an anceſtor who had the misfortune
to loſe all his own original documents in the Riots of 1780.
This, with other circumſtances, induce him to hope, that, on
ſome future occaſion, the curious reader will not be diſappointed,
or deprived of the ſight of this eloquent compoſition. Whether
fuch future occaſion may offer in the publication of a Digeſt of
ſuch other legal determinations of lord chief juſtice MANSFIELD,
either in Weſtminſter-Hall, or at Guildhall, in the fittings out of
term, as can be procured, will depend on contingencies, which
cannot at preſent be the ſubject of diſcuſſion.
The learned Dr. Jortin, at the end of his firſt volume of the
Life of the great ERASMUS, has obſerved, inter alia, that re-
marks on all the works of ERASMUS, a collection of paſſages from
his writings, and ſome epiſtles of him and of his correſpondents,
were reverſed for another volume. This difpofition and diviſion of
that correct work, firſt ſuggeſted the thought of arranging and
forming
WILLIAM EARL OF MANSFIELD484
.
.
forming into a digeſt, numerous other determinations of lord
Mansfield, which have not been the ſubject of arrangement or
diſcuſſion in the preſent volume.
In revolving this diſtribution of the work in his mind, he had
the ſatisfaction of finding, that the concurrent teſtimonies of an-
tient writers were friendly to Topics, and in favour of Digeſts.
To illuſtrate by example. ARISTOTLE, the great father of ſcience
in Greece, in his elaborate compoſition on the uſe of Topics has
taken his principia from Philosophy *, the queen of ſcience.
Cicero, as is well known, at the ſolicitation of Trebafias, a
Roman lawyer, has likewiſe left to the world, a valuable treatiſe
on Topics, but he drew his PRINCIPIA from the fountains of Civil-
LAW. Where ſhall we find the pendect of the Civil Law ?
Where the opinions of their antient lawyers ? The general an-
ſwer is: In the ROMAN DIGEST !
But although the manuſcript epitome of a digeſt, tending to
prove, that lord MANSFIELD, the great prototype of ERASMUS,
for the improvement of legal knowledge, made Ethics and the
rules and maxims of Law his PRINCIPIA : although the arrange-
ment has already been a work of infinite labour, yet it is ſuſcep-
tible of great additions, of very conſiderable improvement; and,
with great deference to the opinion of the public, he begs per-
miſſion to ſuſpend his labours; ſince, if the great leading features
of an illuſtrious character, ſhould not, by men of literature, be
deemed, in ſome degree, intereſting to the cauſe of ſcience, uſeful
to the law, and worthy of being farther promulgated, it will be
decorous in, and the ſincere with of the author to deſiſt from his
* Demoſthenes likewiſe has told us, that he learnt philoſophy from Plato
in the groves of the academy, which he was known to frequent, and where
Horace, as he informs us, learned his philoſophy.
Adjecere bonæ paulo plus artis Athenæ,
Scilicet ut poffem curvo dignoſcere rectum,
Atque inter fylyas academi quærere verum." Epift. II. lib. II. v. 43.
labours,
488
THE LIFE OF
labours, and leave to more ſkilful workmen, the ſuperſtructure
of another volume, the foundation of which he has endeavoured
to lay, but whether on fair and firm ground is not for him to de-
terimine.
At the concluſion of the Second Chapter, p. 277, the curioſity
of the reader was awakened by intimation of a ſermon having been
compoſed by lord Mansfield for a FRIEND. Doctor Johnſon, one
of the under-maſters of Weſtminſter School, where he firſt culti-
vated the acquaintance of Mr. Murray, was that favorite friend.
He was promoted to the ſee of Glouceſter in 1752, and tranſlated
to that of Worceſter, in 1759. David late earl of Mansfield
was indefatigable in his enquiries for this unuſual practice of
piety in his venerable uncle. He often lamented that all his ef-
forts had failed. Such a failure was not a little diſcouraging to
new enquiries ; yet, from the Journals of the Houſe of Commons,
it was clearly proved, that Dr. Johnſon had not once preached
before the Commons on the 30th of January or 29th of May.
The Journals of the Upper Houſe foon evinced that the biſhop of
Glouceſter preached before the Lords the 29th of May, 1753, and
that on the 29th of November, 1759, the biſhop of Worceſter by
order of the Lofds preached a thankſgiving-fermon at the abbey-
church, Weſtminſter. The future inveſtigation was thus brought
within a narrow compaſs. That the pious labours of lord Mans-
field were employed on one of theſe two occaſions was now very
evident; and from the clear evidence of the entries, when any
fpiritual lord, on his tranſlation to a new biſhopric, took his feat.
in the Houſe of Lords, the diſtreſs of biſhop Johnſon may eaſily
be conjectured, ſince he took his feat, as biſhop of Worceſter,
only a few days antecedent to the thankſgiving-day. The author
can, with ſome propriety, if not certainty, conclude, that the
new biſhop, in deſcribing his ſituation to his noble friend and pa-
tron, found in him a friend indeed, who kindly offered to relieve
his diſtreſs, and to dictate a thankſgiving-ſermon without farther:
5.
prez.
WILLIAM EARL OF MANSFIELD.
489
1
preparation-Si licet parva componere, &c. In the year 1770 Ed-
ward duke of Norfolk was deſirous of obtaining an act for the
better endowment, regulation, and enlargement of Sheffield
hoſpital. On the morning of the laſt day for preſenting petitions
for private bills, the noble duke's petition was not prepared.
The author of theſe ſheets was commiſſioned to wait on lord
Mansfield, and to requeſt that his lordſhip would be pleaſed to
preſent a petition from the duke of Norfolk in a few days for
leave to petition the houſe after the day limited for receiving peti-
tions, by reaſon that a regular petition could not be prepared in
due time. The reply was, Why travel over all this ground,
ſince to aſſiſt the duke of Norfolk in ſo good a work, the petition
itſelf may be dictated and prepared in leſs than half an hour. In
conſequence of this advice, it was accordingly done. In the bi-
ſhop's caſe, the fact is well authenticated, that his lordſhip wrote
what lord Mansfield dietated in walking up and down the room.
The judicious reader will form his own judgement, not only of the
numerous fine illuſtrations from the ſacred writings, worthy of the
great Dr. Clarke himſelf, but alſo of ſeveral ſhort fentences in the
ſermon of the fyllogiſtical kind, a mode of reaſoning, which was
peculiarly familiar to lord Mansfield, and which ſtrongly indi-
cates, that, although in the compoſition of it the hand was the
hand of Eſau, yet the voice was Jacob's voice.
In a quarto volume of between forty and fifty occaſional ſer-
mons, collected by biſhop Newton, with a curious index made
by himſelf, this ſermon was fortunately found, intituled, “ A Ser-
mon preached before the Right Honorable the Lords Spiritual
and Temporal in Parliament aſſembled, in the Abbey-church
Weſtminſter, on Thurſday, November 29, 1759, being the Day
appointed to be obſerved as a Day of General Thankſgiving to Al-
mighty God for the ſignal Succeſſes with which his Majeſty's
Arms have been bleſſed. By James Lord Biſhop of Worceſter.
Rrr
Dan,
2
1
490
THE LIFE or
Dan. ii. 20.
Bleſſed be the name of God for ever and ever: for, wiſdom and
might are his.
“The prophet Daniel, upon a view that was given him by the Al-
mighty of the great revolutions that were to happen in the king-
of the earth, breaks forth into this ſtrain of thankſgiving-
Bleſſed be the name of God for ever and ever: for, wiſdom and might
are bis.
“ And ſhall we upon experience of the many ſignal, and repeated
mercies which this nation has received at the hand of God, not
lift up our voice of praiſe and thankſgiving to the Moſt High,
who ruleth in the kingdoms of men *, and divideth to nations their inha
heritance to ?
“ We are here aſſembled to ſhew our juſt ſenſe of theſe mercies ;
which muſt depend upon the truth and effect of our notions of
the
government of a Being, of infinite wiſdom, power, and good-
neſs, who holds, diſpoſes, and controls all things.
" If we are fully and vitally influenced by this perſuaſion, we
ſhall make a proper application of it to our own breaſts
every important occaſion.
“Every part of the creation has the mark of God's
power
impreſſed upon it, and bears evident teſtimony to it. War itſelf
is an acknowledgement of the power of God, as it is an appeal
to him for a deciſion of the rights of nations, which have no ſu-
perior upon earth to whom they can make appeal. His hand
directs the events of battles, and the revolutions of empires
and vain are the efforts of man to oppoſe or obſtruct the
courſe of his Providence. He doth according to his will in the
upon
* Dan, iv. 32.
in Deut. xxxii,
army
WILLIAM EARL OF MANSFIELD.
491.
army of heaven, and among the inhabitants of the earth, and none inay
ſtay his hand, or ſay unto him, what doeft thou * ?
" As his power is unlimited, the methods by which it is ad-
miniſtered are various, and all conſpire to the illuſtration of his
greatneſs, and to the advancement of the general happineſs of
mankind; however his purpoſes, in the execution of them, may
ſurpaſs the reach of our comprehenſion.
“ The moſt memorable and deciſive events recorded in hiſtory
have ſeldom anſwered the previous determinations of human
prudence.
“ Unforeſeen circumſtances give a different turn and direction
to the beſt-formed plan of operations—I returned, faith the wiſe
man, and ſaw, under the ſun, that the race is not always to the ſwift,
nor the battle to the ſtrong +
" It is God that giveth the victory.
- Fleets and armies are but the inſtruments of his Providence.
And that power, which can ſet bounds to the boiſterous element,
and ſay unto it, hitherto ſhalt thou come, and no farther, and here
Jhall thy proud waves be ſtayed*-can moſt certainly control any
enterprize, the ſucceſs of which muſt, in a great meaſure, de-
pend upon
upon that very element.
“ Thus, in the days of our forefathers, did God diſperſe a ter-
rible fleet, the threat and preparation of many years :
and
per.
haps for that very reaſon, becauſe it vainly boaſted itſelf invin-
cible. The word of the Lord went forth, and the ſtorms and
tempeſts were ready to fulfil it, and to ſcatter the proud in the
imagination of their hearts.
“The fame Providence, propitious to the liberties, and the
happy conſtitution of this country, in the next century, gave a
y Eccl. ix. II.
* Dan. iv. 35.
Job xxxviii. II.
Rir 2
proſperous
492
THE LIFE OF
:
.
6
6.6
proſperous courſe to a fleet; ſet out for the deliverance of theſe
kingdoms from arbitrary power, ſuperſtition, and ſlavery.
“ May we, in the preſent important criſis, which muſt fill
every heart with the moſt anxious expectation, experience the
ſame favourable interpoſition of the Almighty. His hand is not
Jhortened, that it cannot ſave--neither his ear heavy, that it cannot
bear*.
“ Every age can ſupply us with inſtances of the Divine Power,
exerted in an extraordinary manner, as ſo many public monu-
ments, to convince the profligate, upon whom the more filent
evidences of that power have no influence.
Upon theſe occaſions, ſecond cauſes are over-ruled, and im-
portant events brought about, which no human foreſight could
have diſcerned, which no counſel of man could have deviſed.
.66 All hiſtory is full of examples of this truth, the Jewiſh in
particular. And though that people was under a particular pro-
vidence, and a peculiar adminiſtration; yet, if that method of
God's proceeding with the Jews, as a nation, had not been
founded in reaſon and juſtice, it could never have been eſtabliſhed
by a God of truth and righteouſneſs. And therefore, examples
from that hiſtory, fo far from loſing any part of their force, upon
account of a particular Providence, are, upon that very account,
of greater weight and authority.
“We may obſerve, throughout their whole hiſtory, that; when-
ever they acted in obedience to God, the weakeſt inſtruments
prevailed—whenever they were diſobedient or rebellious, they
were defeated by men, every way inferior to them, in force, in
number, in military ſkill. Their national glory and reputation
always funk as their idolatry and irreligion prevailed, and revivad
by their repentance and reformation..
* If, lix. I..
66
Isi
WILLIAM EARL OF MANSFIELD.
493
1
“ Is not this great Babylon, that I have built, for the houſe of the
kingdom, by the might of my power, and for the honour of my ma-
jeſty* ? was the proud vaunt of Nebuchadnezzar.—But, while the
word was in his mouth, there fella voice from heaven, ſaying,
the kingdom is departed from thee.
“ Inſtances of this kind, in the goſpel, are more private and
familiar.--The preſumptuous rich man, who thought he had
goods laid up in ſtore for many years, and was enlarging his
barns for their reception, was ſoon fatally convinced of his error,
in placing his dependence upon his wealth and, pawer—that
night his foul was required of him t.
“ Theſe unhappy conſequences of " ſecurity and confidence
(which, in ſome degree, will. affect every individual, and every
nation;, under the ſame circumſtances) muſt remind us, for whoſe
admonition theſe things are recorded, not to think of ourſelves more
highly than we ought to think, but to think ſoberly1.-They will
ſhew. us in the ſtrongeſt light, where, and where only, our true de-
pendence lies; not in human power, not in numerous fleets and
armies, however well appointed, but in the ſuperior protection
and aſſiſtance of the Almighty.--God.is our. hope and ſtrength, theres
fore ſhall we not be afraid ||..
“ We have happily.experienced his protecting power and good-
neſs, in ſuch a ſeries of mercies, ſo quickly ſucceeding each other,
as is hardly. to be paralleled: in any hiſtory.—But mercies loſe
their effect, if they direct not our thoughts to the hand from
which they camea
“ A devout and grateful mind recolleets, and, dwells upon them.
with fatisfaction and delight-and, while it pays the debt of gra-
titude, renews and quickens, the enjoyment of the bleſſings them .
felves, by frequent reflection, and conſtant acknowledgments :
+
* Dan. i. 30.
* Rom. xii. 3.
5
mob: Luke xii: 20..
| Pl. xlvi. 1, 2..
ſenſibles
494
THE LIFE OF
ſenſible of its own weakneſs and inſufficiency, it looks up to the
Father of Mercies with humility and thankfulneſs-it conſiders
extraordinary favours as the kindeſt admonitions, and encourage-
ments to extraordinary gratitude and obedience. The tribute of
praiſe and thankſgiving is the leaſt return we can make. And,
though our praiſes and thankſgivings cannot add any thing to
his glory who fitteth on his throne in the higheſt heavens, yet,
as they are the natural means of ſhewing our gratitude, of ac-
knowledging our dependence, they are well-pleaſing in the fight
of God, who accepteth according to that a man hath, and not accord-
ing to that he hath not*,
Gratitude to benefactors is indeed a duty acknowledged by
all the world. And he muſt be entirely void of every virtue,
who is not diſpoſed to make ſuitable returns or proper acknow-
ledgments for favours received. But public and national bene-
fits require from us a more folemn ſacrifice. The mere formality
of a thankſgiving can never ſatisfy our obligation in this point.
They require the ſubſtantial returns of public virtue and national
piety.
• Bleſſings beſtowed
upon ſocieties of men, not only claim our
acknowledgments to God, but call for a particular exerciſe of our
focial virtues.—They remind us ſtrongly of our duty to our fellow-
creatures, and exhort us to imitate, as far as lies in our power,
that goodneſs, for which we praiſe the Lord ; by communicating
and diffuſing our happineſs; by adminiſtring to the neceſſities of
the poor, and to the comfort of the afflicted.--That we may be
perfect, as our Father which in Heaven is perfe&t*.
- The exerciſe of this virtue, in general, is enjoined to us by
our Saviour with a more than common earneftneſs. And it
ſeems in a peculiar manner to be expected from us, when our
* 2 Cor. viii, 12.
of Mat. v. 48.
1
hearts
WILLIAM EARL OF MANSFIELD.
495
hearts are enlarged with the ſenſe of benefits received, and when
the extraordinary motives to gratitude and affection are moſt
ſtrongly impreſſed upon us.-If God hath ſo loved us, ought not we
alſo to love one another * ?
“ The love of God and the love of man are ſo cloſely con-
nected together, that the one is a proof and a teſt of the other.
We have no means of ſhewing our love to God fo effectually as
by ſhewing it, where he has directed us to thew it, to our diſtreſſed
neighbour.
“ Succeſs, if not rightly improved, may, in its conſequences,
be hurtful. If it turns men's minds from religious reflection-if
it fills them with flattering objects, and makes them leſs attentive.
to the conſideration of the great purpoſes of God's providence,
and to the ſalutary ends of its diſpenſation-if it makes us appro-
priate to ourſelves the favour of God, as the reward of our own
merits—if it gives occaſion to intemperate exceſſes, to riot and
debauchery, or to unwarrantable and preſumptuous expecta-
tions for the future, we may have reaſon to repine at our pro-
fperity, and the public may feel the unhappy effects of it.
The very inſtability of human affairs may, to a wiſe man,
give occaſion to apprehenſion rather than confidence. All the
operations of war particularly, however well concerted, are liable
to the greateſt uncertainty in the execution. And neither paſt or
preſent ſucceſſes can inſure to us the like advantages for the fu-
We may have yet great dangers to encounter ; and ſhould
endeavour, by a right uſe of the mercies which we have received,
prevent thoſe miſeries and calamities, which, ſhould they come
upon us, might overwhelm us. If we examine our own hearts,
we may have reaſon rather to apprehend the ſeverity and judge-
ments of God than to expect a continuance of the mercies we.
have lately experienced. And, if the Lord ſhould turn away
6
ture.
to
Joh..iy. II,
his.
1
24
496
THE LIFE OF
his face from us, and withdraw the light of his countenance,
what ſupport could we have? It is therefore of the utmoſt con-
fequence to us, upon every conſideration, to prepare and to guard
our minds againſt the ill conſequences of proſperity. It is a part
of the religious duty of this day. And nothing can more contri-
bute to this good purpoſe than a ſerious attention to the words
of the prophet, that wiſdom and might are of God.
** They are inherently and eſſentially his. And, whatever degrees
of theſe are given to man, they flow from that great fountain of
light and beneficence ; and are intended to be ſubfervient to his
glory.
" The moſt important uſe of them, is to diſcover to us the.
knowledge of God, and the ſeveral manifeſtations of his will, and
to animate us to ſuch a lively faith in him, and ſuch an active
obedience to his precepts, as may conciliate his favour and loving
kindneſs. God's grace and aſſiſtance is not promiſed but to the
endeavours of men. It co-operates with them in every good
purpoſe, and every virtuous undertaking. And as our wiſdom
and
power
will moſt certainly be defeated, if we entirely rely
upon them, and leave the providence of God out of the queſtion:
So, if we rely upon Providence, without exerting thoſe talents
which God has graciouſly entruſted to us, all our hopes will be
ineffectual.-It is therefore our duty to labour after the attain-
ment of ſuch wiſdom as is agreeable to our own nature and to
the will of God; and to exert fuch might as our natural abili-
ties, ſituation, circumſtances, and condition of life, afford ; al-
ways remembring that the Lord is king. Every one's own con-
ſcience muſt dictate to him the proper application of the talent
committed to his truſt. Every one muſt feel his own powers,
and every one muſt anſwer for the neglect or abuſe of them.
“ This principle, and the obligation we lie under of making
this improvement, applied to every one's own heart, will extend
to all ranks and conditions of life. Power, thus employed, as it
is
:
.
WILLIAM EARL OF MANSFIELD.
497
is the conſequence of virtue, and connected with it, is the natu-
ral means of happineſs, and becomes a common bleſſing. Man-
kind looks up to it with reverence, and obeys it with ſatisfaction.
“ Even power Almighty, according to our beſt idea of it, is
originally founded, and continually exerciſed in beneficence. The
end of God's moral government is univerſal happineſs, and his
laws are the laws of truth and righteouſneſs.
" A ſteady obedience to theſe laws has been found by the ex-
perience of all nations, and all ages, to be the moſt effectual
means of ſecuring to us the favour of the Lord of Hoſt, the
God of Battle ; and of giving us repeated occaſions of com-
memorating the mercies of God, and of thewing forth his falu
vation from day to day.
" While we offer up our moſt folemn thanks to God, from
whom every good and perfect gift cometh; while we praiſe
him for his goodneſs, and declare the wonders that he doth
for the children of-men ; it will become us to pay our fub-
ordinate acknowledgements of duty and affection to him, whom
God has made the choſen inſtrument of his Providence to theſe
kingdoms. May that God, whoſe Providence he devoutly adores in
theſe his diſpenſations, give him a farther increaſe of glory and
happineſs, by freth advantages over his enemies; and, in his
own good time, crown theſe important ſucceſſes in war, and
complete this happineſs, by making him the inſtrument of ſecuring
and eſtabliſhing to us the folid and ſubſtantial bleſſings of peace.
And may the happineſs we enjoy, by his government be per-
petuated to us, under his family, to the lateſt poſterity! The
happineſs which we enjoy is great.-Succeſs abroad, though the
moſt ſtriking, is not the moſt important part of it.
66 If we conſider the miſerable and defolate condition of thoſe
countries, which have been the more immediate feats of war;
the various ſcenes of diſtreſs, which will occur to our thoughts,
upon this reflection, will ſhew us the happineſs of our own ſituation,
Sff
who
.
498,
THE LIFE, &c.
who, in many reſpects, have enjoyed, amidſt the calamities of
war, the moſt valuable bleſſings of peace. And while a ſpirit of
uncommon zeal, and unanimity, the beſt foundation of national
ſtrength, thus animates a free people; and men of all condi-
tions vie with each other in marks of inviolable attachment to
their ſovereign, and in a common concern for the public pro-
ſperity and welfare, what may we not hope in ſo juſt and
righteous a cauſe :
“ Let it be our endeavour, as it is our duty, to make a right
uſe of the bleſſings we enjoy; and, by an uniform obedience to
God's laws, and by the practice of univerſal righteouſneſs, ſo
eſſential to the happineſs of any country, to engage ſtill farther
the peculiar protection of Heaven. Let us exert thoſe powers
which God has given us, as our reſpective ſituations ſhall enable
us, to his honor, and the cominon benefit of our fellow-creatures ;
renouncing any vain confidence in our own arms, or in our own
wiſdom ; and receiving any unmerited ſucceſs from the hand of
God with the devout ſpirit and acknowledgement of the
Pſalmiſt, Not unto us, O Lord, not unto us, but unto thy name
give the glory, for thy mercy and for thy truth's ſake
*
* Pl, cxy. I.
1
" Die
1
1
16 Die Lune, 30 Decembris, ' 17.59.
Ordered,
By the Lords Spiritual and Temporal, in Parliament afſem-
bled, that the Thanks of this Houſe be, and are hereby, given to
the Lord Biſhop of Worceſter, for the Sermon by him preached
, before this Houſe on Thurſday laſt, in the Abbey-Church, Weft-
- minſter; and he is hereby deſired to cauſe the ſame to be .forth-
E with printed and publiſhed.
3
Aſhley Cowper, Cler. Parliamentor."!
Sfi2
-
486, 32.} for reverſed, read reſerved.
CORRIG EN DA,
: Page, Line,
X, 26. Preface. for adviſe, read advice.
39, 4. for tranſaction, read tranſactions..
"51, 22. for firſt-fruits, read first-fruit.
89, 8. for our, read your.
726,
32
. 184, 31. for officers, read offices.
186, 16, for ſheriff, read ſheriff's.
201,
8. dele us.
. 2032 16. for by opinion, read my opinion,
207, 12. for noble, read noble.
- 2772 dele for the zoth of January; and for Political, read Thankſgiving.
- 282, 1. for Laudinoftræ, read Laribus noſtris.
324, Note, 1. 4. for eldeavour, rear endeavour.
-364, 6. for roken, read broken,
399, 14. for diapprobation, read diſapprobationa
.400, 18. for tenninus, read terminus.
4442 31. for be, read been.
448, II. for 501, read 591.
17 & 18, after fucceeded, read the ſucceſs is awigg to two great objects.
487, 13. for Pendect, read Pandect.
20.
.. 456,
.
(gof)
INDEX
R E R U M.
ADDINGTON, Doctor, anecdote ANECDOTES, in private life, ſhew-
of him and the biſhop of Durham, ing his knowledge of men and
Page 184 things, 129, 130, 131, 184—187,
ADMIRALTY, reference to the na-
466, 470
ture of prize juriſdiction there, APPEAL of death, two inſtances
448
thereof referred to,
319
The purity of the ARGUMENT, ſecond, or farther
high court of admiralty vindicated, argument, when to be granted,
441
193, 294
AFFIRMATION of a Quaker, the
when to be refuſed,
nature of it,
173
I14
AMBASSADOR. Account of the ARGUMENTS of convenience and
arreſt of the Ruſſian ambaſſador, inconvenience, how far they are to
and the final ſettlement thereof, 34 be attended to in judicial determi-
AMBASSADORS. Protections : nations,
granted by them, and the nature ASTON, Juſtice, fummary account
of their privilege defined, 33
of, and reference to, his ſpeech on
AMERICA. Lord Mansfield's literary property,
ſpeech in Dom. Proc. on American ATTAINT. The writ of attaint is
taxation, reviſed and corrected by diſuſed, and a mere ſound,
himſelf,
243 AUCTIONEERS, how far to be
ANECDOTES and character of lord protected. Bexwell verſus Chriſtie,
Mansfield in his judicial capacity, with-lord Kenyon's reference to this
120, 127, 128, 129, 213, 465 caſe in a late determination, 396
BAILIFF
2II
221
116
:
502
I N D E X.
B.
284
The king
BRIBERY at elections, puniſhable
at common law as well as by fta-
tute,
134
BAILIFF, in execution of meſne BURRELL, Lady, her verſes on
proceſs, may break open the door
lord Mansfield when at Tunbridge,
of a lodger's apartinents, having
453
firſt gained peaceable entrance at BUST of lord Mansfield by Nolle-
the outer door of the houſe,
kens, in Trinity Hall, Cambridge,
359
BANKRUPT Laws. The moſt de-
firable object in all judicial deter-
minations eſpecially in mercantile
C.
affairs is to do ſubſtantial juſtice.
The ſtatutes of bankruptcy leave a
trader to the moment of an act of CAMBRIDGE - UNIVERSITY.
bankruptcy committed, every power
Claim of a Southwell fellowſhip
an owner can have over his eſtate,
diſcuſſed and determined, 112, 113
118
BATCHELOR. A ſubſequent mar againſt Agar and O'Meara. Co-
riage and having iſſue will amount NUZA-NCe claimed and refuſed, 346
to a revocation of a will of lands CAMDEN, Earl, his obſervations
made by a batchelor,
290
on lord Mansfield's juſtification in
BARON and Feme. See Huſband the cauſe of the king againſt Wood-
and Wife.
317
BLACKETT, Sir Walter, anecdote CASES reſerved for opinion of court
of hin,
130
of King's Bench. Lord Mansfield's
BLACKSTONE, Mr. diſappointed great care to prevent injury to the
in his hope of fucceeding to the
ſuitors, and to avoid delay,
civil-law-profefforſhip at Oxford,
out of Chancery, lord Mans-
but this diſappointment led to the field's alteration of the mode of
future eſtabliſhment of a Vinerian certifying,
293
profeſſorſhip,
89 CERTIFICATES of the Court of
His Commentaries King's Bench on caſes from the
recommended by lord Mansfield, Court of Chancery, 111, 288, 290,
go
292, 295
BOOKS. See Literary Property. CHANCERY, Court of, Cafes ſent
BOOTH, James, eſquire, letter from from thence to the King's Bench,
Mr. Murray to him in 1735, 32
285 to 296
CHES.
fall,
125
IN DE X.
503.
$
-
:
a.
I 22
CHESTERFIELD, Earl of, his let- CREDITORS when they may or
ter on treaties exiſting between may not be preferred previous to a
Great Britain and neutral ſtates, bankruptcy,
189
440
CLAIM of office of high-ſteward by
two noblemen referred to, 145
D.
CLERGY. Non-reſidence confi-
dered in two diſtinct caſes, 320, DAVY, Serjeant, his examination of.
321 a Jew to juſtify bail,
213
COKE, Lord Viſcount, concluſion DEBTS, Mutual, conſidered as a
of his ſpeech in favor of Mr. Fra lien on goods for ſatisfaction of
fer on the trial of Lord 'Lovat, 68 debt,
343)
LORD COKE's loſs of health, and
when one nay
early death deplored,
81
or may not be ſet off againſt the
COMMERCE protected and pro other,
344
muted, 148, 149, 186, 188 DEED. What ſhall amount to a re-
MR. MURRAY's early attention to delivery of one, by a feme.covert
the intereſts of commerce,
who joined with her huſband with-
alſo out a fine in a mortgage, and did
to the argument of pulcrum et ho certain acts of confirmation after
neftum,
35, 147
his death,
377
THE CONSTITUTION does not DENNISON, Juſtice, his epitaph
allow reaſons of ſtate to influence made by Lord Mansfield 275
the judgement of the judges, 164 DEVISE.
164 DEVISE. What words give a fee-
COPYHO'LDS. Operation of ſur fimple,
render and admittance, 325
An eſtate-tail, 133, 191,
COULSON AND COULSON. This
288, 421
caſe has been ſo long conſidered as
An eſtate for life, 197
law, that it ſhould be ſubmitted Enlarged to an eſtate-tail,
to, conſidered by ſome as a ruling
in fee to A and his child
authority, by others as a caſe not or children for ever when he attains
now to be litigated, 196, 200
twenty-one ; but if he die before
COURT. Juriſdiction of King's that tiine then to B in fee, this
Bench as cuſtos morum of the peo-
narrowed the firſt deviſe to
ple,
214, eftate-tail, as if the teſtator had
COURT of Law may puniſh fraud ſaid, if A die without heirs of his
and covin,
114 body,
296
DE-
293, 388
198
an
504
I N D E X.
or
DEVISE to A for a term of ninety ple in fomne caſes appropriated to,
years, if he ſhall ſo long live; and and peculiarly within it,
214
after the determination of that ENTRY. Actual entry is neceſſary
eſtate, then to the heirs of his to avoid a fine,
420
body, remainder to B in tail, as ERROR. Writ of Error, what it is,
the contingency muſt happen with-
153
in the compaſs of a life in being, ERASMUS. Illuſtrations from his
this is good as an executory de life by Dr. Jortin, 203, 206, 208
viſe,
286 ESCHEAT. The crown is intituled
Executory. A deviſe to to Perſonal Eſtate, by Efcheat,
B after one to the heir male of the where there is not any next of kin,
body of A from and after the de-
417
ceaſe of A and limited on default ESTATE for life eftate-tail,
of ſuch iſſue, is a good executory Vexata queſtio, Robinſon and Ro-
deviſe,
418
binfon. In this caſe an eſtate-tail
DISSENTERS not liable to ſerve the
by implication was raiſed in fup-
office of ſheriff in the City of port of the intention of the tef-
London,
251 tator,
190
PROTESTANT Diſſenters to be EXECUTORY Deviſe. There can-
protected in their religious wor not be an executory deviſe after an
ſhip,
264
indefinite failure of iſſue, 290, 420
DIVORCE Bill. Lord Mansfield's EXCEPTIONS. Bill of Exceptions,
manner of obviating objections to the nature of it,
139
the recognition of a peerage in one EVIDENCE Defined. In all caſes
of them,
404
lord Mansfield leaned to the ad-
DOUGLAS Cauſe in the Houſe of
miſſibility of evidence,
123
Lords. Lord Mansfield's ſpeech
thereon,
264
DRURY and Drury. A decree of
F.
the Court of Chancery in this
cauſe having been reverſed. An- FAWCETT,
An- FAWCETT, Chriſtopher, eſquire,
ecdote thereon,
185 a provincial counſel, occaſions an
enquiry into the juvenile conduct
E.
of Murray, Johnſon, and Stone,
which is detailed by lord Mel-
ECCLESIASTICAL Court has jurif combe in his diary, and recorded
diction, as cuſtos morum of the peo-
by other means,
98 to 104
FAW-
Ι Ν D Ε Χ.
I D
505
FAWCETT, Mr. his letter in excul to be protected, 364 to 377
pation of doctor Johnſon, then
lord Mansfield's ad-
biſhop of Glouceſter
103 vice to one of them in making his
FEARNE, Charles, eſq. his ſtric-
decrees,
185
tures on lord Mansfield's determi-
nation in Perrin and Blake,
H.
198 to 204
FOLEY, lord, Mr. Murray's grate- HUSBAND and WIFE. Mortgage
ful attention to him,
131
made by both of them of the wife's
FOTHERGILL, doctor. The dif-
eftate without a fine. What acts
putes with the College of Phyſi-
of hers, when a fene fole ſhall
cians revived in his caſe, 340
amount to a confirination of the
FRASER, General. The interpofi-
deed,
377
tion of lord Coke and of Mr. Mur-
ray in his behalf, together with his
1. J.
own good conduct in America, laid
the foundation of parliamentary IMPRISONMENT lies in England
reſtitution of part of the forfeited
by a native Minorquin againſt a
eſtates,
Governor of Minorca, for injury
FRAUD and Covin, puniſhable at
committed by him in Minorca,
law,
365
INDICTMENT. Trivial flaw there-
in allowed in a writ of error,
168
INFORMER. Public informer
GARRICK David, appealed to by
ought not to be an evidence in a
lord Mansfield,
caſe wherein he is to gain a penalty
GENERAL WARRANTS fully diſ-
on conviction,
177
cuffed, which, as they could not be INSURANCE. Reference to lord
defended on the principles of com-
Mansfield's diſtinctions between a
mon law, were deemed indefenſible
total and an average loſs, 126
and funk into deſuetude,
INTENTION of the teftator to be
136 to 142
ſupported whenever it may be done
GREAT SEAL offered to lord Mans-
conſiſtently with the rules of law,
field repeatedly and refuſed,
421
322—465 JOHNSON, biſhop of Glouceſter.
GOVERNORS of Plantations, &c. His manner of defending himſelf
how far they are privileged, and before the Cabinet Council againſt
T tt
Faw.
79 to 81
IM
G,
2II
,
5
1
506
for, a legacy,
L.
I 22
Í N D E X.
Fawoett's accufation of Murray, KING’S BENCH the Court of, is the :
Johnſon, and Stone,
103 Cuftos Moñuin of the people, 214.
JOHNSON, biſhop of Worceſter, KING'S BENCH PRISON. Appli-
having been tranſlated to that cation of the priſoners to the Court
ſee (a few days previous to a ge-
1:277
neral thankſgiving), and having
been appointed by the lords to
preach the fermon on that occa- LAW. Reaſon is the firſt ground
fion in the abbey-church at Weſt-
of all laws,
minſter; Lord Mansfield, as has
Why the Common is fupe-
been aſſerted from unqueſtionable
rior to Statute Law,
123
authority, in a very friendly man-
Diſtinction between Civil and
ner dictated the heads of the fer-
Criminal Law,
174
mon printed in page 490, &c. of the
Courts of law may relieve
Addenda.
againſt fraud and impoſition, as
JUDGES.. A great judge is moſt
well as a court of equity, 114
open to conviction,
296-420
MARITIME, difcuffed, and
will deſpiſe threats,
proved to be the general law of all.
165-166
nations,
I24
JUDGEMENT reverſed in aid of
LAW of NATIONS, eminent wri ..
intention of teftator,
420
ters thereon,
34,
- of King's Bench
in its full extent
only once reverſed between 1756
is part of the law of England, 33 :
228
LAW STUDENTS, lord Mansfield's
JUSTICE of the Peace. Lord Mans-
great attention to their intereft, .
field's advice to him: how to act
with due caution,
186.
LEASE, power to grant one in pof-.
feffion ſhall be good, although made
to commence from the day of the.
K.
date, which is incluſive or exclu-.
ſive of the day, according to the
KENYON, Lord Chief Juſtice. His
fubject-matter,
399;
illuſtration of a caſe determined by LIBEL. The doctrine difcuffed..
lórd Mansfield relating to fales bý: The King verſus Almon, 307–310.
auction, Bexwell againſt Chriſtie, Alſo in the King verſus Woodfall,
311-318 ,
LIBEL..
and 1771,
349, 380.;
398
22.
1
INDEX.
507
"
147-186
Bench,
264
LIBEL. The difference between ci Lords to take away privilege 305
vil and criminal proſecutions in 3. In enforcing great regularity
caſes of libels, &c. 174, 297
in mercantile tranſactions,
LICENTIATES. Right of admiſ-
fion into the College of Phyſicians MANSFIELD, lord, his ſpeech on
fully diſcuffed in the caſe of Dr. Mr. Wilkes's outlawry, 150–169
Letch, 330—340 ; and in the caſe
his obſervations on pub-
of Dr. Fothergill, 340-343
lic threats, and on a deluded po-
LIMITATION. Words of Limitation pulace,
164
in a will may, in aid of the intent,
his ſpeech on Literary
be deemed words of purchaſe, 133 Property in the King's Bench, 228
LITERARY Property:
The dif-
his ſpeech on Ameri-
cuſſion of the right in Miller and can taxation, corrected by himſelf,
Taylor, in the Court of King's (in anſwer to lord Camden,)
242
215--241
his ſpeech in the Doug-
again, in Donaldſon and Donald las cauſe in the Houſe of Lords,
fon, in Chancery, and the Houſe of
Lords.-Reference thereto, 241
his ſpeech on lord Chat-
ham's bill for reverſing the adjudi-
M.
cations of the Houſe of Cominons
reſpecting Mr. Wilkes's incapacity
MADAN, the Rev. Mr. Anecdotes
of being elected a member to ſerve
of him, wherein lord Mansfield is
in the then preſent parliament,
introduced,
186
271
MANDAMUS: The nature of the
his alteration of the
Writ defined,
263 mode of certifying cafes ſent from
MANSFIELD, lord, his great atten the court of Chancery to the Court
tion to the improvement of com of King's Bench,
293
merce exemplified;
his charge to the jury
I. In an action of debt for a pe in lord Sandwich's proſecution of
nalty under the act of 5 Elizabeth,
the printer of London Evening Poſt
Chap. 4. Sect. 31.; againſt a per for fcandalum magnatum, 297
ſon exerciſing the trade of a brew-
his ſpeech on lord
er without having ſerved an ap Chatham's moving an amendment:
prenticeſhip,
to the addreſs of thanks to the
2. In his ſpeech in the Houſe of
king for his ſpeech. This amend-
Ttte
ment
?
IIO
4
08
Ι Ν D Ε Χ.
5
ment touched on the diſcontents MANSFIELD, lord, his charge to.
whích then prevailed, and particu the jury on an information filed
larly reſpecting the incapacity of againſt a printer for re-publiſhing
Mr. Wilkes to be elected a mem Junius's Letter to the King, 311
ber to ſerve in that parliament,
His ſpeeches in the long
298 litigated diſputes between the Col-
This ſubject being re lege of Phyſicians, and the licen-
ſumed by a motion of lord Chat -
ciates,
331-340
ham’s, called up lord Mansfield
His ſpeech in the cauſe
again,
302 of Morgan and Jones ſent by way
MANSFIELD, lord his ſpeech on a of caſe from the Court of Chan-
bill for taking away all privilege cery, and terminated in the Houſe
from a lord's effects and from his of Lords,
349:
ſervants,
303-307
His fedulous care to pre-
his obfervations on the
vent a delay, of juſtice, 113-118
ſpeeches of the puiſne judges in
To promote ſubſtantial
the caſe of Literary Property, and juſtice, by altering his opinion in
his own fentiments thereon, 228 conſequence of fuller inveſtigation
-241 of abſtruſe points,
293, 4265
his ſpeech in the Houſe
appointed chancellor of
of Lords on American taxation, re the Exchequer pro tempore, anda
viſed by himſelf,
242 the ſalutary effects thereof,
his ſpeech on the Dif-
His moral character-
ſenters Bill, and act of toleration, conſidered,
121, 145, 464.
reviſed and approved of by his
His private character
lordſhip,
252—262
and familiar anecdotes, 129, 147,
Diffenters not liable to
ſerve the office of ſheriff in the
His thoughts on ſolitary;
City of London,
confinement,
145:
By analogy, the Writ of
Refuſed the great ſeal
Mandamus, ſince the Toleration repeatedly,
322
act, ought to protect the paſtor of
His animated ſpeech on:
Proteſtant Diffenters, 263 Mr. Wilkes's outlawry, 150–169
His own account of the
His great reſpect for:
opportunities he had of preparing ſettled rules,
legal arguments,
274
His reception at Tun,
bridge,
III.
184
256
LII,
Ι Ν Ρ Ε Χ.
509
}
2
I
Bridge, in 1784, where he went MELCOMBE, Lord, his diary of
for the recovery of his health, the proceedings againſt Murray,
451 Johnſon, and Stone,
98
MANSFIELD, lord, his character MINORS. What acts they may do,
by modern writers of eminence and how far they are to be pro-
457-461
tected againit acts done by them,
His unſtudied obſerva-
380.
tions on the French Revolution, MORGAN and Jones. Lord Mans-
466
field's ſtate of the caſe and ſpeech
Reference to the will therein,
349
and codicils of lord Mansfield, MURRAY, the Honorable William,
467 was one of the eleven children of
Summary reviſion of his
David Viſcount Stormont,
character;
472
was educated at Weft-
His laſt illneſs and deah minſter-ſchool, and diſtinguiſhed:
479 himſelf there by his declamations
Mr. Baillie, in return for. and Latin verſes,
3
eminent ſervices, leaves a confider-
Lord Monboddo. His
able ſum by his will for a monu-. examen of Mr. Murray's Oration
ment to the memory of lord Mans in praiſe of Demoſthenes, 8
field, and a farther fum for the
In 1730, Mr. Murray
beſt monumental inſcription, 480 took his degree of. M. A. and ſoon.
MARRIAGE, promiſe thereof, and afterwards went abroad
the effect of bonds in reſtraint of
Letter from Mr. Mur-
marriage conſidered,
180 ray to the late duke of Portland on
MARRIOTT, Sir James, employed the ſtudy of Ancient Hiſtory, 12-
artiſts in making a buft and minia-
17
ture-pictures of lord. Mansfield,
Another Letter on the
284 ſtudy of Modern Hiſtory, 17-23
MARITIME LAW conſidered, not.
The numerous references
as the law of any particular coun-
to authors in theſe letters reviſed
try, but as the jus gentium, .:: 124
and corrected,
23
MILLER and Taylor, reſpecting Li-
In Michaelmas term,
terary Property. The firſt caſe of
1730, Mr. Murray was called to
a final difference of opinion of the the bar,
24
judges of King's Bench, 228
MUR
.
II.
IN DE X.
510
28-31
MURRAY, Mr. ftudied elocution burgh, and received the freedom
under the auſpices and aid of Mr. of that city in a gold box. Verſes
Pope,
24 on that occaſion made by a youth
On the recommendation
of fourteen,
39
of Mr. Murray, ' a Latin verſion of MURRAY. In 1738 Mr. Murray
Pope's Effay on Man is propoſed to married lady Elizabeth Finch, who
be made by Mr. Smart of Pem-
died the roth of April, 1784, 40
'broke-college, Cambridge, 25
The appeals in Dom.
Verſes by Mr. Pope in Proc. in the year 1738, did not
praiſe of Mr. Murray, 26, 7, 8 exceed fixteen, and in eleven of
Mr. Murray in the years thoſe Mr. Murray was employed as
1732, 3, 4, is engaged in many counſel either for the appellants or
appeals in Dom. Proc.
reſpondents,
40
In 1736, the great quef-
Hiſtory of one of thoſe
tion on the Law of Nations, re appeals, wherein Mr. Murray was
ſpecting the privilege of foreign counſel for an Iriſh widow, who
miniſters, and the protection of
had ſuſtained many years expenſive
their domeſtic ſervants, was ar litigation for recovery of her
gued by Mr. Murray, before Lord
dower,
41
Chancellor Talbot,
33
Brief examination of
In 1737, Mr. Murray ſome great outlines of the charac-
the junior counſel 'for Mr. Sloper, ter of Mr. Pitt (firſt earl of Chat-
in an action for damages brought ham), alſo of Mr. Murray (firſt
againſt him by Theophilus Cibber, earl of Mansfield), and of their
is, on account of the ſudden indir-
great powers in oratory, 4453
pofition of the ſenior counſel, cal-
Mr. Murray's ſpeech in
led upon to go on with the cauſe, parliament, in 1743, in defence of
35 the prerogative of the crown,
56
The conſequences flow-
In 1746, Mr. Murray
ing from his ſucceſs on the laſt when he was ſolicitor general in the
mentioned cauſe,
trials of the rebel-lords, gains the
Similar incidents ad applauſe of law-lords; of his co-
duced in other great legal charac adjutor the attorney general, and
ters by way of illuſtration, 36, 7 of lord Lovat the priſoner, 65, 74,
In 1737 Mr. Murray
78
was counſel for the city of Edin-
MUR-
36
t
IN DE X.
511
68-72
MURRAY. Lord Coke, and Mr. MURRAY. Farther illuſtration of
Murray humanely and forcibly the defence made by biſhop John-
ſpeak in extenuation of Mr. Fra- · ſon, Mr. Murray, and Mr. Stone,
ſer's ſuppoſed crime, the ſon of againít the accuſation introduced
lord Lovat,
by lord Ravenſworth, in 1753,
Mr. Murray's ſpeech in
484
anfwer to an honourable member's
In 1754, on the promo-
arguments in oppoſition to the ad tion of Sir Dudley Ryder, the
dreſs of thanks to the king for his King's attorney general, to the
ſpeech,
82 high office of Chief Juſtice, Mr. .
The Profefforſhip of Murray was made attorney gene ..
civil law at Oxford being vacant, ral. And on the death of Lord
Mr. Murray recommended Mr. Chief Juſtice Ryder, in 1756, the
Blackſtone to the firſt duke of King's attorney general was ap-
Newcaſtle. The diſappointment pointed chief juſtice of the King's
which Mr. Blackſtone experienced Bench,
104
on this occaſion led (under the
Previous to his taking
auſpices of Mr. Murray) to future his feat as lord chief juſtice, he took.
fortune, and gave riſe to the Vine leave of the Honorable Society of
rian profeſſorſhip,
89 Lincoln's Inn, was addreſſed by
Mr. Murray's early at the honorable Charles Yorke in a:
tention to the commercial intereſts
complimentary ſpeech, to which
of this kingdom,
go
Mr. Murray made an eloquent re-
Mr. Murray, his ma ply,
105
jeſty's folicitor general, doctor
Mr. Murray, on his be-
Johnſon, biſhop of Glouceſter, and ing appointed chief juſtice of the
Andrew Stone, 'eſquire, preceptor court of King's Bench, was made a .
to the then Prince of Wales, were, peer of the realm, under the ſtyle
in 1751, accuſed of having, when and title of baron of Mansfield, in
they were at Weſtminſter-ſchool, the county of Nottingham, 109)
drunk diſloyal healths. A folemn
Was appointed Chan-
inveſtigation took place in 1753, cellor of the Exchequer pro ten--
which terminated, as an accuſation pore ; and principally through his ,
of that kind might be expected to
mediation a coalition was brought
end, by eſtabliſhing thoſe charac about, which gave energy to the
ters which were attempted to be war, and was of infinite ſervice to
aſperſed,
98-104. the kingdom.
MUR-
III
1
512
I N D E X.
89
1
MURRAY. The reſcript and report OXFORD UNIVERSITY. The
of the great law-officers annexed origin of the Vinerian Profeſſorſhip
to the duke of Newcaſtle's letter, there,
by his majeſty's order, to the king
of Pruſſia's ſecretary of the em-
P.
baſſy, in anſwer to the memorial
and other papers delivered by Mon- PAPISTS. On the trial of Mr. James
ſieur Michell to the duke of New-
Webb, at the ſuit of Payne, lord
caſtle, in 1752,
428-447 Mansfield manifeſted his ſenſe of
The fact is well authenticated, that toleration in matters of religion,
the report ſigned by fir George
176
Lee, by Dr. Paul, and by the at- PARKER, Lord chief baron, his
torney and folicitor general, was
love of abiding by former deciſions,
drawn up by, and the ſole com-
207; and anecdotes of him, 403,
poſition of, Mr. Murray, 424
463
Mutiny-act not drawn PEERAGE, not to be recognized in
with critical nicety, and to be li-
a bill in parliament before the claim-
berally conſtrued,
129 ant has eſtabliſhed his claim, 404
PERRIN and Blake, true ſtate of it
N.
and the concluſion, 190209
PHYSICIANS, College of, their dif-
NEWTON, Biſhop of Briſtol, his
putes with the licentiates diſcuſſed
account of Mr. Murray at Weſt-
in the caſe of Dr. Letch, 330; and
minſter-ſchool,
3
in Dr. Fothergill's caſe
340
His obſervations on lord
POPE, Alexander, eſquire, anecdotes
Mansfield's ſpeech in oppoſition to
24–28, 285
lord Chatham's bill relating to Mr.
PORTRAITS of lord Mansfield by
Wilkes's election,
274
eminent painters, the firſt by Van-
His letters to, and cha-
loo, and the laſt by fir Joſhua Rey-
racter of, lord Mansfield, 449,
nolds, 281–284; and a buſt by
459
Nollekens,
284
0.
PRACTICE. Matters of practice not
to be learned from books, 169
OUTLAWRY fully diſcuſſed in
Lord Mansfield on a
1768 in Mr. Wilkes's caſe, 150m point of practice in pleading, 170
169
PUR-
of him,
I N D E X.
513
PURCHASER, who muſt take as RULES, General, the utility of them
ſuch, and the neceſſary deſcription, conſidered,
123
133 RULES and principles of equity, on
what occaſions they have been
adopted by lord Mansfield in a
court of law. See diſpute reſpecting
the right to a Southwell fellowſhip,
QUAKERS' affirmation to be re-
ceived in action of debt on ſtatute
againſt bribery,
1.70
IIZ
!
S.
R.
SEAMEN Power of impreſſing
founded on immemorial uſage. Pro-
REFERENCE to a digeſt of caſes tections to ſome may have the ſame
and determinations pending lord foundation,
392-
Mansfield's chief-juſtice-fhip, 483 SCANDALUM MAGNATUM.
REMAINDERS. Croſs remainders Lord Mansfield's charge to the
when they ariſe,
294 jury in lord Sandwich's proſecution.
REVOCATION. What ſhall amount of the printer of the London Even-
to a revocation of a will, 212, 290 ing Poſt,
297
ſhall not make void SETTLEMENT, one by deed, in
a former charge made by tenant for confideration of love and affection
life,
422 to his name, blood, &c. and for
RICHMOND, Duke of, a reaſon ſettling the undivided moieties of
aſſigned for his grace's great atten- his manors, lands, &c. therein af-
tion to a legal queſtion, Whether ter mentioned, grants the ſaid un-
the deviſe in a will was of an eſtate divided moieties, particularly de-
for life, &c.
207 fcribing them, together with all
RIOT in Edinburgh in 1736, dif all other his lands, tenements, and
cuffed in parliament,
37
hereditaments in the kingdom of
RIOTS. Lord Mansfield's conduct Ireland-Habendum the faid unci-
in 1780. Detail of incidents where vided moieties before granted, to-
in lord Mansfield was perſonally gether with all other his eſtate in
intereſted,
the kingdom of Ireland to A, to the
ſeveral
408
U ul.
* 514
IN DE X
I
U.
1
3
ſeveral uſes therein declared, and
.for no other uſe whatſoever, and
then declares the uſe of the undi-
vided moieties only. Held, that
the grantor did not intend to paſs
any lands but the undivided moie-
ties. Secondly, ſuppoſing the
ſweeping clauſe did extend to any
other lands, yet, no uſe being de-
clared of them, they deſcend to the
heir at law,
295
STUDENTS, caſes to be ſtated by
the counſel for their benefit, 349,
380
SUMMONS. Nature of a judge's
fummons,
170
SURRENDER of copyholds, how
it operates,
325
UNANIMITY of Deciſion, how
beſt promoted,
228
UNIVERSITIES of Oxford and
Cambridge. College-Statutes and
ingrafted Fellowſhips conſidered,
in the claim of a Southwell Fellow-
ſhip,
II2
alſo in the claim of office of High
Steward of Cambridge by two
noblemen,
145
USAGE. Legal uſage what conſti-
tütes it,
I4I
1
W.
T.
1
184
WAGER. Action lies to recover mo
ney won upon a wager, unleſs the
TOLERATION. The principles of motive be fraud or other turpis caufa,
it diſcuſſed by lord Mansfield. See
323
Quakers' teſtimony, and Papiſts, WARBURTON, Biſhop of Glou-
and Diſfenters,
170-174 ceſter, his dedication of his Divine
TREVOR, biſhop of Durham. Legation to lord Mansfield, 142
Anecdote of him,
Wherein he affimi-
TRIALS. Rules for new trials dif lates the character of the latter to
charged, 129, 307, 324, 330
that of the great ERASMUS, 144
New Trials granted, and WILKES, Mr. a candidate for Mid-
for what end granted,
dleſex. Proceedings thereon, 149
117, 118 WILLES, Juſtice. Reference to his
TRUSTS. The Law of Truſts con ſpeech on Literary Property, 220
fidered, and defined by lord WILL. The credibility of witneſſes
Mansfield,
193, 209
to a will conſidered,
WILL,
IIO, 116,
-
-
I20
។
1
I N D E X.
515
A
(
WILL. In a Will, words of limita-
.
tion may, under certain circum-
ſtances, and in aid of the inten-
Y.
tion, be conſtrued as words of pur-
chaſe,
132
YATES, Sir Joſeph, his manner of
Reference to the will and co diverſifying his ſtudies, 126
dicils of lord Mansfield, 467
Reference to his ſpeech on
WOODFALL. The King againſt
Literary Property,
224
Woodfall, Lord 'Mansfield's juſtifi-
His anſwer to Mr. Juſtice
cation in the Houſe of Lords of his Blackſtone's obſervation thereon,
conduct in this cauſe,
313
225
WORCESTER, Biſhop of, his cha- YORK, archbiſhop of, his reſiſtance
racter of Lord Mansfield,
460
of the rioters in 1780,
410
WRECK of the ſea. What kind of
loſs falls under that denomination,
327
F INI S.
DIRECTIONS to the BINDER.
The Firſt Print, of Mr. MURRAY, to face
p. iii.
The Second, of Lord MANSFIELD, to face p. 279.
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