he was neither Lord Ashburton, nor any other lawyer, is proved by what we have said of his gross ignorance of law. To hold that he was Mr. Francis is libelling that gentleman's memory; and although much external evidence concurs in pointing towards him, he certainly never wrote anything of the same kind in his own character.

But those charges made against Lord Mansfield's judicial conduct were definite and precise. Others were urged of a kind so vague, that it was impossible distinctly to apprehend or pointedly to meet them. He was accused of encroaching upon the certainty of the common law, by making his views bend to general notions of substantial justice. That he was always anxious to get at the body of the case, and deal with it so as to give merited success to undoubted right is admitted; and in sometimes neglecting the dictates of technical rules, when they obstructed his path towards substantial justice, he might possibly overlook the great advantages of having a fixed rule applicable to all cases, advantages well worth the unavoidable price which must be paid for them in the occasional hardship, or even apparent absurdity, that may attend their inflexible application. But when the same objection is advanced to his introducing rules universally applicable, and choosing those which are more consistent with common sense and liberal feeling than with merely technical analogy, we are bound to turn from the criticism with indignation. By this course he was improving our jurisprudence, and not encroaching upon its principles; nor was the certainty of the law in any way impaired by establishing its rules upon an enlarged basis.

That he was fond of drawing over equitable notions from the Courts in which he had been chiefly trained, and applying them to the consideration of legal matters, is the same objection in another form. Some of the most valuable portions of our common-law

remedies are derived from Equity; witness the action for money had and received, and indeed the action of Indebitatus assumpsit generally: and special pleaders who never saw a bill or an answer, but when they were used in evidence at nisi prius, such men as Mr. Justice Chambre, (among the first ornaments of his profession, as among the most honest and amiable of men,) have shown their sense of the advantage thus gained to the common law by reminding other but less learned men, like Lord Chief Justice Gibbs, of this circumstance, when they grounded their argument upon the position that the point they were attacking was one of an equitable, and not of a legal consideration. As for the clamour (and it was nothing more than clamour, and ignorant clamour, too) that Lord Mansfield was making the old Saxon principles of our jurisprudence bend to those of the Civil Law, it is wholly marvellous that men of any understanding cr education should have ever been found so much the slaves of faction as to patronize it. Lord Mansfield at no period of his life ever had, or could have had, the least predilection for the civil law, arising from any familiarity with its institutions. He never was a Scotch advocate at all; or if he was, it must have been in the cradle, for he left Scotland at three years of age. With the Consistorial Courts, if by their practice the Civil Law is meant, he had necessarily very little intercourse.* * Chancery has nothing to do with that system unless in so far as it prefers the bad practice of written depositions to viva voce examinations; and also in so far as every rational system of jurisprudence must necessarily have much in common with the most perfect structure that ever was formed of rules for classifying rights and marshalling the

* It would, in our times, have been impossible for him to have any practice at all in these courts unless in cases of appeal, formerly before the Delegates, now in the Privy Council. But when Lord Mansfield was at the bar, it was the custom for common lawyers to attend important cases in Doctors' Commons. This, however, was of rare occurrence.

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remedies for wrongs. Nor can anything be found in all the train of his decisions which betokens more leaning towards the Roman code than a regard for the enlarged and universal principles of abstract justice sanctioned, if it did not prescribe. Yet could the most popular writers of the day, those, too, whose pretensions even to legal learning were the most obtrusive, denounce the Chief Justice as engaged in a deliberate plot to reduce slavery to system, "by making the Roman code the law of nations, and the opinion of foreign civilians his perpetual theme,” after the example of "the Norman lawyers, who made the Norman Conquest complete;" and as thus "corrupting by such treacherous arts the noble simplicity and free spirit of our Saxon laws."* Ignorance cannot surely go beyond this point. The civil law only became hostile to liberty through the imperial portion of it introduced by the Emperors, and which made the will of the Prince the law of the land. In no other particular is it at variance with freedom; and who ever dreamt that Lord Mansfield had the power of introducing that portion, let his inclination have been ever so much bent in such a direction?

But this topic leads us to the political charges which were brought against this great magistrate. Unfortunately for his fame as well as for his tranquillity, he continued to mix in politics after he ceased to be in the service of the crown as an advocate. He not only acted as Speaker of the House of Lords for above a year, but for a much longer time he had a seat in the cabinet, and took a part in the business of government, all the more objectionable in his position, that it was much more active than it was open and

avowed.

While the Great Seal was in commission previous to Lord Bathurst's obtaining it as Chancellor, Lord Mansfield was, to all political intents and purposes,

*Junius's Letters, No. xli.

the Chancellor, without having the responsibility of that high office: nor did he less act as the legal adviser of the government, when that worthy, but somewhat feeble individual, more ostensibly filled the place. The vice of the Chief Justice's character was a want of boldness, that made him shrink from personal responsibility. Hence he never would accept the first station in the law; and hence, too, he was believed to have urged or advised many things, which he either had opposed or had only passively suffered; for, when once a statesman acquires the evil reputation of shunning responsibility while he seeks power, there is no preventing the world from tracing every mischief to a source which appears to hide itself only because there is something to conceal.

The same want of nerve more than once appeared in his judicial proceedings. When Lord Camden, a man inferior to him in everything but courage, openly attacked his libel law in Woodfall's case, and dared him to defend it, he contented himself with saying, "He would not answer interrogatories." He afterwards challenged Lord Camden to meet him and argue the question; and when, Lord Camden named his day, he refused to debate it. He then had the Lords summoned to hear the matter discussed; and he came down and had the house precipitately adjourned, after giving in a paper to the clerk, containing a note of the Opinions of the Judges. When asked if he meant to have it taken into consideration by the house, and would move accordingly, he said, "Oh no; he only meant to give the peers an opportunity of seeing, and, if they chose, taking copies of the note." When desired to say if he would have it entered on the journals, his answer again was, "No, only to leave it with the clerk." We may venture to affirm that no such course of proceeding could safely be pursued by the boldest judge of our own day, or would be resorted to by the most timid. We may

also form an opinion from such conduct in that great judge, how very different a line he would have taken in such a struggle with the Commons, as his honest and patriotic successor has lately been engaged in, had he lived in these times of high parliamentary pretension.

If we possess hardly any remains of Lord Mansfield's speeches at the bar or in parliament, we hav、 considerable materials from which to form an estimate of his judicial eloquence. The Reports of Sir James Burrows are carefully corrected, to all appearance; probably by the learned Judges themselves. Many of the judgments of the Chief Justice are truly admirable in substance, as well as composition; and upon some of the greater questions, his oratory rises to the full height of the occasion. It would be difficult to overrate the merit of the celebrated address to the public, then in a state of excitement almost unparalleled, with which he closed his judgment upon the application to reverse Wilkes's outlawry. Great elegance of composition, force of diction, just and strong but natural expression of personal feelings, a commanding attitude of defiance to lawless threats, but so assumed and so tempered with the dignity which was natural to the man, and which here, as on all other occasions, he sustained throughout, all render this one of the most striking productions on record. The courage, however, rested mainly, if not entirely, in the tone and the words; for after disposing of the argument, and on all the grounds taken at the bar refusing the reversal, he arrives, by a short and unexpected byeway, at the means of granting Mr. Wilkes's application; and he was therefore well awa all the while that he was reversing the accustomed relation of the suaviter and the fortiter; nor could be said to do otherwise than couch in the language of rebuke and refusal a full compliance with the popular demands.