International Miscellany of Literature, Art and Science, Vol. 1

What Murray rejected the less capable and not over nice Duke of Newcastle Greedily seized. The Attorney-General, Sir Dudley Ryder, was elevated to the bench, and Murray, gaining a step in professional rank, was by so much nearer to the consummation of his hopes. Never was Ministry so thoroughly weak and so wretchedly unfortunate. The whole burden of defending it rested in the House of Commons upon the shoulders of the Attorney-General, and the feebleness of the Government was all the more painful from the manifest strength of the great master of sarcasm and invective, their unflinching opponent, growing in favor throughout the country, merciless in his attack at all times, but terrific in his onslaughts upon a foe worthy of his hatred, and capable of defense. Imagination cannot linger upon a finer picture than is presented in the persons of these mighty combatants; nor is the effect diminished by the fact that of their great achievements little remains beyond the bare tradition. We know that by a word, a gesture, a glance of his eagle eye, Pitt awed the House of Commons, and chilled it into death-like silence. We have heard how like a torrent his unpremeditated and impassioned oratory rushed into the hearts of men, expelling rooted convictions, and whatever else possessed them at the moment; how readily he spoke on all emergencies, how daring were his strange digressions, how apposite his illustrations, how magnificent and chivalric the form and structure of his thoughts—how madly spirit-stirring his high and stern appeals. We have read of the proud bearing of the austere yet gentle commoner, to whom it was a matter of sublime indifference whether in a debate he rose late or early, first or last, and who ever contented himself with simply following the current, and obeying the fine instinct of his own rapt mind, regardless of the speakers who had gone before, or were about to follow him. We have pictured to ourselves the commanding countenance, the characteristic action, the patrician manner that belonged to William Pitt as exclusively as his own wild and wayward genius; but records are wanting to establish all that we feel and know. Fragments of Pitt's oratory only have reached us, and of these but few can be pronounced wholly authentic. What that oratory must have been we learn from its effects. More is not vouchsafed us. What remains to us of Murray's speeches in Parliament is equally meager and unsatisfactory, but we may judge of his power by reflecting upon the character of the assailant with whom he successfully wrestled. There must surely have been wonderful capability of argument, vast knowledge, a faculty of persuasion irresistible in its winning grace, all combined in the man able, by the mere force of quiet intellectual skill, to bear the brunt of an assault which threatened demolition in its furious advance, and to turn aside blows intended for annihilation. Lord Chesterfield addressing his son, points to Pitt and Murray as to two great models for imitation. Contemporary history assigns to them the highest place among their fellows.

In 1756 Sir Dudley Ryder died, and Murray immediately claimed the vacant Chief Justiceship. The Duke of Newcastle was panic-stricken by the announcement. It has it said that from the beginning the Attorney-General had been the mainstay of the Government; but at this particular crisis his adherence was essential to its life. The nation was discontented and sullen, as well it might be. War, carried on in almost every part of the world, had resulted in lasting disgrace to England. Minorca had been lost to her through the folly or cowardice of an English admiral, and elsewhere ignominious defeat had attended her arms. Addresses from the Throne poured in, intimations of stopping the supplies were thrown out, and unmistakable references made to the conduct of the chiefs of the Government. Fox, the only capable Minister, resigned his office in fear and disgust, and, at the very moment when Newcastle turned to Murray as to his last hope and refuge in the coming storm, that cautious and resolute official respectfully demanded the promotion to which he had a right. Alarmed for his place and his head, the Duke promised the Attorney-General enough to make the fortunes of six if he would but forego his purpose. He should have the Duchy of Lancaster for life, tellerships and reversions without end for himself and his nephew, Lord Stormont; if he would only stay in the House of Commons until the address was carried he should have a pension of 6,000l. a-year; offers rose as Murray showed himself more firm. Temptation came in vain. Murray averred that he "would on no terms agree to remain in the House of Commons for one session longer, or one month, or one day, even to support the address;" he "never again would enter that assembly." If he could not be Chief Justice he would not be Attorney-General. That peremptory avowal was enough. To keep Murray from opposition, Newcastle conferred upon the country the only great boon he ever bestowed upon it, and made the Attorney-General Chief Justice of the King's Bench. The poor Duke gained little by the move. Forced in his naked helplessness to resign, he was succeeded by the Duke of Devonshire, who took care to appoint Pitt Secretary of State, and to give him the lead in the House of Commons.

Upon the 8th day of November, 1756, Murray was sworn in before Lord Chancellor Hardwicke, and created a peer by the title of Baron Mansfield, of Mansfield, in the county of Nottingham, and three days afterward he sat for the first time in the Court of King's Bench. "Over that great court," says Lord Brougham, "he presided for thirty years, and his administration of its functions during that long period shed a luster alike upon the tribunal and the judge." During that period, too, but two cases occurred in which his opinion was not unanimously adopted by his brethren; and of the many thousand judgments which he pronounced but two were reversed. In all his time no bill of exceptions was ever tendered to his direction, and "all suitors sanguine in their belief of being entitled to succeed" were eager to bring their causes to be tried before him. There were drawbacks to Murray's complete success in the House of Commons; there were qualities which he lacked whilst practicing at the bar. Mansfield wanted nothing to make up the perfect portrait of a British judge. In the Legislature he was helpless in attack; and both in the House of Commons and in the House of Lords he exhibited on more than one occasion a want of moral courage as humiliating to his friends as it proved profitable to his foes; at the bar, learned and able though he always was, yet wary circumspection even there cramped his powers and deprived him of the transcendent reputation which other advocates have earned. On the bench there was neither fear nor hesitation, neither undue caution nor lack of energy, to impede his great intelligence. There he sat, as above the common passions of humanity, surveying its doings with a mind unobscured by prejudice, as wide in its grasp as it was masculine it capability. His clearness of apprehension, his perspicuity of statement, his perfect self-command, his vast knowledge of every kind, were amongst the least of his qualifications for his high station. More preeminently than all was his heroic and almost chivalric devotion to the judicial office; his stern and unflinching love of justice, as distinguished from "the puny technicalities of an obscure walk;" his superiority to the favors of the great or to the clamors of the many, and his unquestioned spotless integrity. During a portion of his lengthened judicial career Lord Mansfield held a seat in the Cabinet, but nobody thought of questioning the purity of his judgments on that account. Toward the close of his judicial life Lord George Gordon was tried for Inciting the rioters who set fire to Lord Mansfield's house and destroyed his property. Lord Mansfield was the presiding judge on that memorable occasion, and it was upon his exposition of the law of high treason to the jury, and after his summing up, that Lord George Gordon was acquitted.

"The benefits conferred by this accomplished judge upon the Court and upon its suitors," says one of his biographers,—

"Were manifold and substantial. He began by at once so regulating the distribution of the business, as to remove all uncertainty of the matters which should be taken up each day, and to diminish both the expense, and the delay, and the confusion of former times. He restored to the whole bar the privilege of moving in turn, instead of confining this to the last day of the term. He almost abolished the tedious and costly practice of having the same case argued several times over, restricting such rehearings to questions of real difficulty and adequate importance." The benefits conferred upon the country were far greater. Burke, once quoting an argument of Solicitor-General, Murray, said that "the ideas of Murray go 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 infinitely diversified occasions of men and the rules of natural justice within artificial circumscriptions, but conforming our jurisprudence to the growth of our commerce and our empire."

The statement is just, and a finer panegyric it were impossible to write. Our limits, unfortunately, enable us only to indicate the achievements of Chief Justice Mansfield; but such indications must be given, however briefly. He found the common law of England a reproach, and, according to Professor Story, "he put England, America, and the whole civilized world under the deepest obligations" by the permanent improvement which he effected in the system. During the reign of George II. England had become the greatest manufacturing and commercial country in the world, but her jurisprudence had, in the meanwhile, made no provision whatever for the regulation of commercial dealings. When questions arose affecting purchases and sales, the affreightment of ships, marine insurances, bills of exchange, and promissory notes, it was impossible to decide them; there were no cases to refer to, no treatises to consult. Lord Mansfield grappled with the difficulty and overcame it. His judicial decisions supplied the deficiencies of law and became themselves law. His mode of procedure was as philosophical as it was bold. From every case that came before him he extracted a general principle of universal application, and availed himself of it not only to rule the particular case under consideration, but to serve as a guide in all similar cases hereafter; and he would enlarge upon the principle thus brought out until, as his contemporaries declare, all listeners were lost in admiration at the strength and stretch of his understanding. Lord Campbell tells us that the common law of England which Lord Mansfield had to administer upon his elevation to the bench, "was a system admirably adapted to the condition of England in the Norman and early Plantagenet reigns, whence it sprang up." As high an authority in America declares that

"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 elevating 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 reverenced, not only for adapting the inefficient system which he found to the exigencies of his own age in his own country, but for furnishing forever the great laws founded upon everlasting truth and justice to the whole family of man."

In 1760 George III. ascended the throne, and Mansfield became a member of the Cabinet, of which Bute was at the head. Ten years afterward the Chief Justice prudently withdrew from the intimate connection with the Government, into which he ought never to have entered, and seven years Before his retirement the brief, though magnificent authority of Bute, had been shattered to pieces, and the Minister himself disgraced. But, although Cabinet Councils were henceforward held without the Chief Justice, Lord Mansfield in his place in Parliament stood by the Government, and vigorously defended them against a virulent Opposition. Pitt, "blasting his character," according to Horace Walpole, "for the sake of a paltry annuity and a long-necked peeress," had followed his ancient rival into the House of Lords, and by this suicidal act given Mansfield an immense advantage. Chatham, eager enough to tie his victim to the stake, was doomed to bitter disappointment in an arena utterly unfitted for the exercise of his peculiar powers. The atmosphere of the House of Peers, admirably suited to the calm dignity and sublime moderation of Mansfield, proved too often nipping frost to the burning declamation of the man whose very look could rouse a more popular assembly, and whose words oftener than once had inspired it with the noblest sentiments. It was not in the House of Lords that at this period of his history Lord Mansfield found his most dangerous opponent. A secret enemy had arisen in the outside world amongst the people, one even more unscrupulous than Chatham in his animosity: one who reveled in his questionable privilege of striking in the dark, and who justified abuse that knew no mercy, and acknowledged no law, by reiterated and fervid appeals to God and his country. The moral courage of Murray had once given way in the House of Commons, when Pitt, speaking daggers to him, and suddenly exclaiming, "Judge Festus trembles, he shall hear me another day," quietly sat down. But his sufferings were nothing compared with the torture his weakness underwent beneath the repeated inflictions of the unsparing Junius.

Toward the close of the year 1769 Junius sent forth his celebrated letter to the King, for the publication of which criminal informations were laid against Woodfall, as well as against Almon and Miller, who immediately reprinted the libel. "Rex v. Almon" was the first case brought to trial, and the jury found a general verdict of guilty. The defense set up in the trial against Woodfall was, that the letter was not libellous. The part which Lord Mansfield took is well known. He contended that

"All the jury had to consider was, whether the defendant had published the letter set out in the information, and whether the inuendos, imputing a particular meaning to particular words, as that 'the K–' meant His Majesty King George III., but that they were not to consider whether the publication was 'false and malicious,' these being mere formal words, and that whether the letter was libellous or innocent was a pure question of law, upon which the opinion of the court might be taken by a demurrer, or a motion in arrest of judgment."

The jury retired, and after some hours deliberation returned a verdict of "Guilty of the printing and publishing only." The attempt of Lord Mansfield to withdraw the cognizance of the question of libel from the jury to vest it in the court, contrary, as it unquestionably was, both to liberty and law, had high authorities for its justification, and was supported by the unanimous opinion of the judges who sat at his side. Posterity will acquit the otherwise upright judge of the moral obliquity of which his living enemies, with regard to this proceeding, pronounced him guilty, and for which Junius would have crushed the Chief Justice, had his ability been equal to his will.

It behooves the present generation to approach the lucubrations of the redoubted Junius in a spirit of enlightened discrimination. We must bear in mind that the poisoned arrows of the unseen combatant were discharged at a period peculiarly favorable for the exercise of his destructive skill; when startling invective was in fashion; when the mercenary acts of the foremost public man excused, if they did not justify, wholesale and unreflecting chastisement; when the public press was in its earliest infancy, and public writers had not yet educated the audience whose good sense now holds the libertinism of even the public censor in check, and provides its own best remedy against the crimes or follies of the pen. Junius but imitated the example of his betters when he fastened upon a foe, guilty or innocent, and heaped upon his head every opprobrious term a heated imagination could supply. A statesman's policy had but to be inconvenient to his adversary in order to prove the Minister "hateful," "execrable," "abominable," "wicked," a traitor to his country, and a conspirator against the liberties of the people. Pitt honored Walpole with such vituperation, and when Walpole went out, and Carteret came in without Pitt, the same expressive language was transferred by the illustrious commoner from Minister to Minister, as though no virtue could possibly be found in any Government without his presence. When Junius affected to regard Lord Mansfield as the incarnation of all that is odious in humanity, his praise of Lord Chatham knew no bounds; yet it is well known that under another disguise Junius dealt far severer blows against the patriot than he ever inflicted upon a man born, as he says, to abet despotism in its hateful attempts to trample upon the people's rights. Nothing can be more inconsistent than the accusations brought by Junius against Lord Mansfield. In one and the same breath he charges him with assuming an arbitrary power of doing right; so that if he does wrong it lies only between him and his conscience; and with condescending to evasive, indirect courses, in the temper of a quibbler. Now the Chief Justice is something more than a lawyer, now considerably less. At one moment he is setting common law at defiance, at another he is twisting the law to the purposes of corruption, and taking refuge behind the forms which he is expressly charged with heroically setting at defiance. Had Lord Mansfield been less timorous, Junius might have been less daring. At the close of one of his letters the reckless assailant writes "Beware how you indulge the first emotions of your resentment. This paper is delivered to the world, and cannot be recalled. The prosecution of an innocent printer cannot alter facts nor refute arguments. Do not furnish me with further materials against yourself." Another venomous diatribe ends with a similar threat. Dare "to represent this charge as a contempt of the authority of the House of Peers, and move their Lordships to censure the publisher of this paper, and I affirm that you support injustice by violence; that you are guilty of a heinous aggravation, of your offense; and that you contribute your utmost influence to promote, on the part of the highest court of judicature, a positive denial of justice to the nation!" Junius traded up on the invincible infirmity of a judge, who might have been destroyed by his weakness had he not been upheld by his unsullied purity and fame.

The attacks of Junius were not without effect on Parliament. A motion was made in the House of Commons for "a committee to inquire into the proceedings of the judges in Westminster Hall, particularly in cases relating to the liberty of the press." In the House of Lords Lord Chatham and Lord Camden re-echoed the charges of the House of Commons, and while the latter warned noble lords how they received the opinions in that House of the "most experienced lawyers" upon questions of law, the former, in his accustomed style, threatened to ring again and again "the alarm-bell of liberty," until he "could rouse the people to a proper sense of their injuries." Stung by persecution Lord Mansfield suffered himself to be betrayed into unaccountable error. Intimating one day that he had something of importance to bring to the notice of the House, he moved that their Lordships should be summoned to receive the communication. The appointed day arrived, and the attendance of peers was unusually large. Lord Mansfield rose amidst profound and anxious silence. Lord Chatham and Lord Camden had calumniated the judges, and they were now no doubt to be the objects of a vote of censure. Nothing of the kind. Lord Mansfield simply informed the House that he had left a paper with the clerk assistant containing the judgment of the Court of King's Bench in the case of "the King against Woodfall," and then, to the astonishment of every one, resumed his seat. Lord Camden rose and inquired whether the noble lord intended hereafter to found any motion on his paper? Lord Mansfield answered "No," and the House proceeded to other business. The very next day Lord Camden resumed the subject. He regarded the conduct of the Chief Justice as a challenge against himself, and he at once accepted it. In direct contradiction to Lord Mansfield he maintained that his doctrine was not the law of England. He had considered the noble lord's "paper," and had not found it very intelligible. He begged to propose four questions to the noble and learned lord, to which he required categorical answers, that their lordships might know precisely the points they had to discuss. The questions were submitted, and Lord Mansfield, instead of meeting them, "with most abject soothings," as Horace Walpole gleefully says, "paid the highest compliments to Lord Camden." He had the highest esteem for the noble and learned lord who thus attacked him, and had ever courted his esteem in return. He had not expected this treatment from his candor. It was unfair; he would not answer interrogatories. The reply was a signal for relentless torment. Not a peer interposed on his behalf. Distressed by his misery, Lord Mansfield sat down, remained still, and in sheer pity for their prey the dogs were called off.

In 1778 Lord Chatham died, and from the departure of the great commoner until his own decease Lord Mansfield occupied a more conspicuous place as a judge than as a politician in the public eye. He continued to display upon the bench, as heretofore, the keenest perception, a resolute obedience to the dictates of justice, high incorruptibility, great learning, and thorough self-devotion to his beloved and chosen occupation. He has been largely accused of favoring, in his early manhood, the designs of the Pretender, yet, from the beginning to the close of his public life, his fidelity to the reigning family could not be called in question. He has been charged with gratifying prerogative at the expense of law, yet the liberty of the law was never more perfect, the rights of the subject were never more secure, than during his long tenure of the judicial office. He has been stigmatized by Junius as an oppressor of men's consciences, yet no man of his time regulated his conduct with a stricter regard to the humanizing principle of religious toleration. Had Lord Mansfield been faithless to the people his death would never have been regarded as an irreparable loss by the whole country; had he been a bigot, the world would never have lost the treasures which it is said were consumed in the house burnt to the ground by zealous Protestants eager to take the life as well as to destroy the goods of Lord Mansfield, for no other reason than that he chose to hold the scales of justice fairly and steadily between Protestant and Catholic.

In his 82d year, having been absent scarcely a day from court, Lord Mansfield retired to Tunbridge Wells for the benefit of his health. The year following he resigned his office. For six years longer he lived in dignified retirement, occupying himself in his garden, or refreshing his mind with the works that had charmed and instructed his youth. To the last he retained his memory, and, dying without a pain at the close of the century, the man who had spent his happiest evenings with Pope was destined to listen to all the horrors of the French Revolution, in common with thousands living at the present hour. Lord Mansfield's death was mourned as a national calamity; his remains were deposited in Westminster Abbey, and they lie close to those of the Earl of Chatham. After the stormy conflict of a glorious life, the two schoolboy rivals lie side by side in silent and everlasting repose.

We have freely stated the one great deformity of Lord Mansfield's character; his quailing before Lord Camden is but a solitary instance of the fault that tarnished his otherwise brilliant career. When we have said that the Chief Justice acted unconstitutionally in continuing in the Cabinet whilst he held the Judicial office, and that, admitted to the friendship and confidence of his sovereign, he did not scruple to exercise power without official responsibility, we have confessed to the most serious offenses with which he is chargeable. It is not, however, to dwell upon these blemishes of true greatness, or to indulge in idle panegyric, that we have occupied so large a portion of valuable space, and intermixed with the living doings of today one striking record of the buried past. The life of Lord Mansfield is nothing to us if it yields no profitable instruction and contains no element of usefulness for the generation to whom our labors are addressed. Is it wholly unnecessary to place at this moment before the bar of England so noble a model for imitation so sublime an ideal for serious contemplation as that offered in the person of the Earl of Mansfield? Is it impertinent to warn our lawyers, that, without confirmed habits of industry, temperance, self-subjugation, unsullied honor, vast knowledge, enlightened and lofty views of their difficult yet fascinating profession, and a love of the eternal principles of truth and justice, incompatible with meanness and degrading practice, true eminence is impossible, and imperishable renown not to be obtained? Never, at any other period of our history, has it been so necessary to urge upon the students of the law the example of their worthiest predecessors. The tendency of the age is to lower, not to elevate, the standard set up by our ancestors for the attainment of preeminence. That our giants may not be stunted in their growth—that the legal stock may not hopelessly degenerate—Chief Justice Campbell does well to impress upon his brethren the patient and laborious course—the high and admirable qualities—by which Chief Justice Mansfield secured his greatness and his fame.