Page images
PDF
EPUB

possible to attend to him, to sit under him every day, without catching some beams from his light The disciples of Socrates, whom I will take the liberty to call the great lawyer of antiquity, sinca the first principles of all law are derived from his philosophy, owe their reputation to their buving beon the reporters of the sayings of their master. If we can arrogate nothing to ourselves, wo can boast the school we were brought up in; the scholar may glory in his master, and we may challenge past ages to show 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 ability, and the same 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. My Lord Somers came the nearest to his character, but bis time was short, and envy and faction sullied the luster 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 on this occasion, but that in this situation, 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 answer them.

“For the society, I shall always think myself honored by every mark of their esteem, assection, and friendship; and shall desire the continuance of it no longer than while I remain zealous foi the Constitution of this country and a friend to the interests of virtue.”

Lord Mansfield now entered on that high career of usefulness which has made his name known and honored throughout the civilized world. Few men have ever been so well qualified for that exalted station. He had pre-eminently a legal intellect, great clearness of thought, accuracy of discrimination, soundness of judgment, and strength of reasoning, united to a scientific knowledge of jurisprudence, a large experience in all the intricacies of practice, unusual courtesy and ease in the dispatch of business, and extraordinary powers of application. He came to the bench, not like most lawyers, trusting to his previous knowledge and the aid afforded by counsel in forming his decisions, but as one who had just entered on the real employment of his life. “On the day of his inauguration as Chief Justice, instead of thinking that he had won the prize, he considered himself as only starting in the race.”

How he discharged the duties of his high station, it belongs especially to men of his own profession to determine. One fact, however, may stand in the place of many authorities. Out of the thousands of cases which he decided in the Court of King's Bench, there were only two in which his associates of that court did not unanimously lagree with him in opinion. Yet they were, as all the world knows, men of the highest ability and the most perfect independence of mind.' Junius, indeed, assailed hini with malignant bitterness, but it is the universal decision of the bar that his charges were false as they were malignant. Against this attack we may set off the opinion of Chief Justice Story. England and America, and the civilized world, lie under the deepest obligations to him. Wherever commerce shall extend its social influences ; wherever justice shall be administered by enlightened and liberal rules ; wherever contracts shall be expounded upon the eternal principles of right and wrong; wherever moral delicacy and judicial refinement shall be infused into the municipal code, at once to persuade men to be honest and to keep them so; wherever the intercourse of mankind shall aim at something more elevated than that groveling spirit of barter, in which meanness, and avarice, and fraud strive for the mastery over ignorance, credulity, and folly, the name of Lord Mansfield will be held in reverence by the good and the wise, by the honest merchant, the enlightened lawyer, the just statesman, and the conscientious judge. The proudest monument of his fame is in the volumes of Burrow, and Cowper, and Douglas, which we may fondly hope will endure as long as the language in which they are written shall continue to instruct mankind. judgments should not be merely referred to and read on the spur of particular occa sions, but should be studied as models of juridical reasoning and eloquence." | As a speaker in the House of Lords, the success of Lord Mansfield was greater than

His

reverence.

in the House of Commons. The calmness and dignity of the assembly were letter suited to his habits of thought. Here, after a few years, he had again to encounter his great antagonist, who was raised to the same dignity in 1766. As Chatham was the advocate of the people's rights, Mansfield was the champion of the King's prerogative. He defended the Stamp Act, and maintained the right of Parliament to tax the Americans as being virtually represented in the House of Commons. A speech on that subject, corrected by himself, is given below. Lord Campbell, notwithstanding his strong predilections as a Whig, does not hesitate to pronounce it unanswerable. His speech in favor of taking away the protection extended to the servants of peers is the most finished of his productions, and will also be found in this volume. To these will be added his argument in the case of the Chamberlain of London vs. Allan Evans, which has often been spoken of as the most perfect specimen of juridical reasoning in our language. His address from the bench, when surrounded by a mob, during the trial of the outlawry of Wilkes, will also form part of the extracts.

After discharging his duties as Chief Justice nearly thirty-two years, he resigned his office on the 4th of June, 1783. His faculties were still unimpaired, though his strength was gone; and he continued in their unclouded exercise nearly five years longer, when he died, after an illness of ten days, on the 20th of March, 1793, in the eighty-ninth year of his age.

The countenance of Lord Mansfield,” says a friend and contemporary, was un commonly beautiful, and none could ever behold it, even in advanced years, without

Nature had given him an eye of fire; and his voice, till it was affected by the years which passed over him, was perhaps unrivaled in the sweetness and variety of its tones. There was a similitude between his action and that of Mr. Garrick. In speaking from the bench, there was sometimes a confusion in his periods, and a tendency to involve his sentences in parentheses; yet, such was the charm of his voice and action, and such the general beauty, propriety, and force of his expressions, that, while he spoke, all these defects passed unnoticed.”

The eloquence of Lord Mansfield, especially in his best speeches in the House of Lords. was that of a judge rather than an advocate or a party leader. He had the air of addressing the House of Lords, according to the theory of that body, as one who spoke upon honor. He sought not to drive, but to lead ; not to overwhelm the mind by appeals to the passions, but to aid and direct its inquiries; so that his hearers had the satisfaction of seeming, at least, to form their own conclusions. He was peculiarly happy in his statement of a case. “It was worth more," said Mr. Burke, “than any other man's argument.” Omitting all that was unnecessary, he seized, with surprising tact, on the strong points of a subject; he held them steadily before the mind; and, as new views opened, he led forward his hearers, step by step, toward the desired result, with almost the certainty of intuitive evidence. “It was extremely difficult,” said Lord Ashburton, “ to answer him when he was wrong, and impossible when he was in the right.” His manner was persuasive, with enough of force and animation to secure the closest attention. His illustrations were always apposite, and sometimes striking and beautiful. His language, in his best speeches, was select and graceful; and his whole style of speaking approached as near as possible to that dignified conversation which has always been considered appropris te tr. the House of Lords.

SPEECH OF LORD MANSFIELD ON THE RIGHT OF TAXING AMERICA, DELIVERED IN THE HOUSE OF LORDE

FEBRUARY 3, 1766.

INTRODUCTION. In January, 1766, a plan was brought into the House of Commons, under Lord Rocking aaj s ministry. for the repeal of the American Stamp Act; and in order to mollify the King, who was opposed to thal measure, it was accompanied by a Declaratory Act, affirming that “ Parliament had full power and right to make laws of sufficient force to bind the colonies.” Lord Chatham, then Mr. Pitt, remarked with sever ity on this Declaratory Act when before the Commons. Lord Camden did the same when it came before the House of Lords, February 10th, 1766. He said, “In my opinion, my Lords, the Legislature have no right to make this law. The sovereign authority, the omnipotence of the Legislature, is a favorite doctrine ; but there are some things which you can not do. You can not take away a man's property without making him a compensation. You have no right to condemn any man by bill of attainder without hear. ing him. But, though Parliament can not take any man's private property, yet every subject must make contribution; and this he consents to do by his representative. Notwithstanding the King, Lords, and Commons could in ancient times tax other persons, they could not tax the clergy." He then went on to consider the case of the counties palatine of Wales and of Berwick, showing that they were never taxed till they sent representatives to the House of Commons, observing that the Irish tax thenıselves, and that the English Parliament could not tax them. “But," said he, “even supposing the Americans bave no exclusive right to tax themselves, it would be good policy to give it to them, instead of offensively exerting a power which you ought never to have exercised. America seels that she can do better without us than we can do without her."

Lord Northington, the Chancellor, made some coarse and bitter remarks in reply; and Lord Mansfield then rose to defend his favorite doctrine of the right of Great Britain to tax the colonies. His speech is by far the most plausible and argumentative one ever delivered on that side of the question; and Lord Campbell, in referring to the subject, says," Lord Mansfield goes on with great calmness, and with arguments to which I have never been able to find an answer, to deny, as far as the power is concerned, the distinction between a law to tax and a law for any other purpose."! The speech was corrected for the press by Lord Mansfield, and may therefore be relied on as authentic.

one ol' right,

ܪ

расу.

SPEECH, &c. My Lords, -I shall speak to the question but I never was biased by any consideration of The question strictly as a matter of right; for it is applause from without, in the discharge of my not expedi

a proposition in its nature so perfectly public duty; and, in giving my sentiments ac

distinct from the expediency of the cording to what I thought law, I have relied tax, that it must necessarily be taken separate, upon my own consciousness. It is with greaif there is any true logic in the world; but of pleasure I have heard the noble Lord who moveć the expediency or inexpediency I will say noth- the resolution express himself in so manly and ing. It will be time enough to speak upon that sensible a way, when he recommended å dissubject when it comes to be a question. passionate debate, while, at the same time, he

I shall also speak to the distinctions which urged the necessity of the House coming to such have been taken, without any real difference, as a resolution, with great dignity and propriety of to the nature of the tax; and I shall point out, argument. lastly, the necessity there will be of exerting the I sball endeavor to clear away from the ques. force of the superior authority of government, if tion, all that mass of dissertation and opposed by the subordinate part of it.

learning displayed in arguments which arguments I am extremely sorry that the question has have been fetched from speculative records arid ever become necessary to be agitated, and that men who have written upon the subthere should be a decision upon it. No one inject of government, or from ancient records, as this House will live long enough to see an end being little to the purpose. I shall insist that put to the mischief which will be the result of these records are no proofs of our present Con. ihe doctrine which has been inculcated; but the stitution A noble Lord has taken up his ar. arrow is shot, and the wound already given. Igument from the settlement of the Constitution shall certainly avoid personal reflections. No at the Revolution; I shall take up my argument orie has had more cast upon him than myself; from the Constitution as it now is. The Consti.

tution of this country has been always in a mov. "Lives of the Charicellors. V., 206.

ing state, either gaining or losing something :

Refutation o

practices.

Dirca Argu

1. The

Great Britain

and with respect to the modes of taxation, when of Spain; they were states dependent upon the we get beyond the reign of Edward the First, house of Austria in a feudal dependence. Nothor of King John, we are all in doubt and obscu- ing could be more different from our colonies rity. The history of those times is full of uncer. than that flock of men, as they have been called, tainties. In regard to the writs upon record, who came from the North, and pourea into Eu they were issued some of them according to law, rope. Those emigrants renounced all laws, all and some not according to law; and such [i. e., protection, all connection with their mother counof the latter kind) were those concerning ship- tries. They chose their leaders, and marched money, to call assemblies to tax themselves, or under their banners to seek their fortunes and to compel benevolences. Other taxes were rais. establish new kingdoms upon the ruins of the ed from escuage, fees for knights' service, and Roman empire. by other means arising out of the feudal system. But our colonies, on the contrary, emigrated Benevolences are contrary to law; and it is well under the sanction of the Crown and known how people resisted the demands of the Parliament. They were modeled menes Crown in the case of ship-money, and were per- gradually into their present forins, ted by charter. secuted by the Court; and if any set of men respectively, by charters, grants, and dependent on were to meet now to lend the King money, it statutes; but they were never sepwould be contrary to law, and a breach of the arated from the mother country, or so emanci. rights of Parliament.

pated as to become sui juris. There are sev. I shall now answer the noble Lord particular- eral sorts of colonies in British America. The ly upon the cases he has quoted. With respect charter colonies, the proprietary governments, to the Marches of Wales, who were the border- and the King's colonies. The first colonies were ers, privileged for assisting the King in his war the charter colonies, such as the Virginia Comagainst the Welsh in the mountains, their enjoy- pany; and these companies had among their diing this privilege of taxing themselves was but rectors members of the privy council and of both of a short duration, and during the life of Ed- houses of Parliament; they were under the au ward the First, till the Prince of Wales came to thority of the privy council, and had agents resibe the King; and then they were annexed to dent here, responsible for their proceedings. So the Crown, and became subject to taxes like the much were they considered as belonging to the rest of the dominions of England; and from Crown, and not to the King personally (for there thence came the custom, though unnecessary, is a great difference, though few people attend of naming Wales and the town of Monmouth in to it), that when the two Houses, in the time of all proclamations and in acts of Parliament. Charles the First, were going to pass a bill conHenry the Eighth was the first who issued writs cerning the colonies, a message was sent to them for it to return two members to Parliament. by the King that they were the King's colonies, The Crown exercised this right ad libitum, from and that the bill was unnecessary, for that the whence arises the inequality of representation in priry council would take order about them; and var Constitution at this day. Henry VIII. issued the bill never had the royal assent. The Coma writ to Calais to send one burgess to Parlia- monwealth Parliament, as soon as it was settled, nient. One of the counties palatine (I think he were very early jealous of the colonies separating said Durham) was taxed fifty years to subsidies, themselves from them; and passed a resolution before it sent members to Parliament. The cler- or act (and it is a question whether it is not in gy were at no time unrepresented in Parliament. force now) to declare and establish the authority When they taxed themselves, it was done with of England over its colonies. tho concurrence and consent of Parliament, who But if there was no express law, or reason permitted them to tax themselves upon their pe- founded upon any necessary infertition, the Convocation sitting at the same time ence from an express law, yet the submitted to with the Parliament. They had, too, their rep- usage alone would be sufficient to and thus ac resentatives always sitting in this House, bish support that authority; for, have not ieir depend ops and abbots; and, in the other House, they the colonies submitted ever since ence. were at no time without a right of voting singly their first establishment to the jurisdiction of the for the election of members; so that the argu- mother country? In all questions of property, ment fetched from the case of the clergy is not the appeals from the colonies have been to the an argument of any force, because they were at privy council here ; and such causes have been on time unrepresented here.

determined, not by the law of the colonies, but by The reasoning about the colonies of Great the law of England. A very little while ago, The colonies Britain, drawn from the colonies of there was an appeal on a question of limitation et achter in antiquity, is a mere useless display in a devise of land with remainders; and, not. poust

of learning; for the colonies of the withstanding the intention of the testator appear. T'yrians in Africa, and of the Greeks in Asia, ed very clear, yet the case was determined conwere totally different from our system. No na- trary to it, and that the land should pass accordtion before ourselves formed any regular system ing to the law of England. The colonies have of colonization, but the Romans; and their sys- been obliged to recur very frequently to the ju. tem was a military one, and of garrisons placed risdiction here, to settle the disputes among their in the principal towns of the conquered provin- own governments. I well remember several tes. The states of Holland were not colonies references on this heart. when the late Lord!

2. They have

Hardwicke was attorney general, and Sir Clem has been ultimately to fix the trade of the colo 66Wearg solicitor general. New Hampshire nies, so as to center in the bosom of that country and Connecticut were in blood about their differ from whence they took their original. The Nav ences ; Virginia and Maryland were in arms igation Act shut up their intercourse with for against each other. This shows the necessity eign countries. Their ports have been made of one superior decisive jurisdiction, to which all subject to customs and regulations which have subordinate jurisdictions may recur. Nothing, cramped and diminished their trade. And du. my Lords, could be more fatal to the peace of ties have been laid, affecting the very inmost the colonies at any time, than the Parliament parts of their commerce, and, among others, thal giving up its authority over them; for in such a of the post; yet all these have been submitted case, there must be an entire dissolution of gov. to peaceably, and no one ever thought till now ernment. Considering how the colonies are of this doctrine, that the colonies are not to be com posed, it is easy to foresee there would be taxed, regulated, or bound by Parliament. A no end of feuds and factions among the several few particular merchants were then, as now, disseparate governments, when once there shall be pleased at restrictions which did not permit them no one government here or there of sufficient to make the greatest possible advantages of their force or authority to decide their mutual differ- commerce in their own privato and peculiai ences; and, government being dissolved, nothing branches. But, though these few merchants remains but that the colonies must either change might think themselves losers in articles which their Constitution, and take some new form of they had no right to gain, as being prejudicial to government, or fall under some foreign power. the general and national system, yet I must obAt present the several forms of their Constitution serve, that the colonies, upon the whole, were are very various, having been produced, as all benefited by these laws. For these restrictive governments have been originally, by accident laws, founded upon principles of the most solid and circumstances. The forms of government policy, flung a great weight of naval force into in every colony were adopted, from time to time, the hands of the mother country, which was according to the size of the colony; and so have to protect its colonies. Without a union with been extended again, from time to time, as the her, the colonies must have been entirely weak numbers of their inhabitants and their commer- and defenseless, but they thus became relatively cial connections outgrew the first model. In great, subordinately, and in proportion as the some colonies, at first there was only a governor mother country advanced in superiority over the assisted by two or three counsel; then more rest of the maritime powers in Europe ; to which were added; afterward courts of justice were both mutually contributed, and of which both erected; then assemblies were created. Some have reaped a benefit, equal to the natural and things were done by instructions from the secre- just relation in which they both stand recipro taries of state; other things were done by order cally, of dependency on one side, and protection of the King and council; and other things by on the other. commissions under the great seal. It is observ- There can be no doubt, my Lords, but that able, that in consequence of these establishments the inhabitants of the colonies are as 4. The colonies from time to time, and of the dependency of much represented in Parliament, as these governments upon the supreme Legislature the greatest part of the people of En. Parliament at home, the lenity of each government in the gland are represented; among nine millions of colonies has been extreme toward the subject; whom there are eight which have no votes in and a great inducement has been created for electing members of Parliament. Every objecpeople to come and settle in them. But, if all tion, therefore, to the dependency of the colonies those governments which are now independent upon Parliament, which arises to it upon the of each other, should become independent of the ground of representation, goes to the whole presmother country, I am afraid that the inhabitants ent Constitution of Great Britain; and I suppose of the colonies are very little aware of the con- it is not meant to new model that too. People sequences. They would feel in that case very may form speculative ideas of perfection, and in. soon the hand of power more heavy upon them dulge their own fancies or those of other men. in their own governments, than they have yet Every man in this country has his particular nodone, or have ever imagined.

tion of liberty; but perfection never did, and The Constitutions of the different colonies are never can exist in any human institution. To 2. The laws to thus made up of different principles. what purpose, then, are arguments drawn from a waliendelea They must remain dependent, from distinction, in which there is no real difference their pecuniary the necessity of things, and their re- of a virtual and actual representation ? A mem

lations to the jurisdiction of the moth. ber of Parliament, chosen for any borough, reper country; or they must be totally dismembered resents not only the constituents and inhabitants from it, and form a league of union among them- of that particular place, but he represents the selves against it, which could not be effected inhabitants of every other borough in Great without great violences. No one ever thought Britain. He represents the city of London, and the contrary till the trumpet of sedition was all other the commons of this land, and the in blown. Acts of Parliament have been made, not habitants of all the colonies and dominions of only without a douht of their legality, but with Great Britain ; and is, in duty and conscience, universal applause, the great object of which bound to take care of their interests.

are tintually represented in

« PreviousContinue »