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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, since the first principles of all law are derived from his philosophy, owe their reputation to their having been the reporters of the sayings of their master. If we can arrogate nothing to ourselves, we 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 his 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, 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."

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 agree 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 him 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. His 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

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 reverence. 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 pos sible to that dignified conversation which has always been considered approprit te tr the House of Lords.

SPEECH

OF LORD MANSFIELD ON THE RIGHT OF TAXING AMERICA, DELIVERED IN THE HOUSE OF LORD FEBRUARY 3, 1766.

INTRODUCTION.

IN January, 1766, a plan was brought into the House of Commons, under Lord Rockingaan s ministry. for the repeal of the American Stamp Act; and in order to mollify the King, who was opposed to that 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 tc 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 themselves, and that the English Parliament could not tax them. "But," said he, "even supposing the Americans have 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 feels 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 Jistinction between a law to tax and a law for any other purpose." The speech was corrected for the ress by Lord Mansfield, and may therefore be relied on as authentic.

one of right,

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 not expedi- a proposition in its nature so perfectly ency. 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 nothing. 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 government, if opposed by the subordinate part of it.

I am extremely sorry that the question has ever become necessary 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 result 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;

Lives of the Chancellors. v., 206.

applause from without, in the discharge of my public duty; and, in giving my sentiments ac cording 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 the resolution express himself in so manly and sensible a way, when he recommended a dispassionate debate, while, at the same time, he urged the necessity of the House coming to such a resolution, with great dignity and propriety of argument.

from ancient

I shall endeavor to clear away from the ques. tion, all that mass of dissertation and Refutation o learning displayed in arguments which arguments have been fetched from speculative records and men who have written upon the sub- practices. ject of government, or from ancient records, as being little to the purpose. I shall insist that these records are no proofs of our present Constitution. A noble Lord has taken up his ar gument 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 mov. ing state, either gaining or losing something

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. Nothof 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 poured 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. Benevolences are contrary to law; and it is well known how people resisted 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.

Direct Argu

colonies crea

and therefore

Great Britain.

But our colonies, on the contrary, emigrated under the sanction of the Crown and Parliament. They were modeled menis. 1. The gradually into their present fortns, ted by charter. respectively, by charters, grants, and dependent on statutes; but they were never separated from the mother country, or so emancipated as to become sui juris. There are several sorts of colonies in British America. The charter colonies, the proprietary governments, and the King's colonies. The first colonies were the charter colonies, such as the Virginia Com

rectors members of the privy council and of both houses of Parliament; they were under the au thority 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 unnecessary, for that the privy council would take order about them; and the bill never had the royal assent. The Commonwealth Parliament, as soon as it was settled, 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.

I shall now answer the noble Lord particularly upon the cases he has quoted. With respect to the Marches of Wales, who were the borderers, privileged for assisting the King in his war against the Welsh in the mountains, their enjoy-pany; and these companies had among their diing this privilege of taxing themselves was but of a short duration, and during the life of Edward the First, till the Prince of Wales came to be the King; and then they were annexed to the Crown, and became subject 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 Parliament. 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 Parlianient. One of the counties palatine (I think he said Durham) was taxed fifty years to subsidies, before it sent members to Parliament. The clergy were at no time unrepresented in Parliament. When they taxed themselves, it was done with the concurrence and consent of Parliament, who permitted them to tax themselves upon their petition, the Convocation sitting at the same time with the Parliament. They had, too, their representatives always sitting in this House, bishops and abbots; and, in the other House, they were at no time without a 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, because they were at no time unrepresented here.

of antiquity

The reasoning about the colonies of Great The colonies Britain, drawn from the colonies of not a case in antiquity, is a mere useless display point. of learning; for the colonies of the Tyrians in Africa, and of the Greeks in Asia, were totally different from our system. No nation before ourselves formed any regular system of colonization, but the Romans; and their system was a military one, and of garrisons placed in the principal towns of the conquered provinPas. The states of Holland were not colonies

2. They have

submitted to English law, and thus ac knowledged their depend

ence.

But if there was no express law, or reason founded upon any necessary inference from an express law, yet the usage alone would be sufficient to support 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, notwithstanding the intention of the testator appear. ed very clear, yet the case was determined contrary to it, and that the land should 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

nies, so as to center in the bosom of that country from whence they took their original. The Nav igation Act shut up their intercourse with for eign countries. Their ports have been made subject to customs and regulations which have cramped and diminished their trade. And du ties 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 colonies are not to be taxed, regulated, or bound by Parliament. A few particular 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. For 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. Without a union with her, the colonies must have been entirely weak and defenseless, but they thus became relatively great, subordinately, and in proportion as the mother country advanced in superiority over the rest of the maritime powers in Europe, to which both mutually contributed, and of which both have reaped a benefit, equal to the natural and just relation in which they both stand recipro cally, of dependency on one side, and protection on the other.

Hardwicke was attorney general, and Sir Clem- | has been ultimately to fix the trade of the colo on: Wearg solicitor general. New Hampshire and Connecticut were in blood about their differences; Virginia and Maryland were in arms against each other. This shows the necessity of one superior 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 entire dissolution of government. Considering how the 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 dissolved, nothing remains but that the colonies must either change their Constitution, and take some new form of government, or fall under some foreign power. At present the several 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 adopted, from time to time, according to the size of the colony; and so have been extended again, from time to time, as the numbers of their inhabitants and their commercial 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; afterward courts of justice were erected; then assemblies were created. Some things were done 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 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 toward the subject; and a great inducement has been created for people to come and settle in them. But, if all those governments which are now independent 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 them in their own governments, than they have yet done, or have ever imagined.

mitted affected

The Constitutions of the different colonies are 3. The laws to thus made up of different principles. They must remain dependent, from their pecuniary the necessity of things, and their reinterests vitally. lations to 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 sedition was blown. Acts of Parliament have been made, not only without a doubt of their legality, but with universal applause, the great object of which

are virtually represented in

There can be no doubt, my Lords, but that the inhabitants of the colonies are as 4. The colonies much represented in Parliament, as the greatest part of the people of En- Parliament. gland are represented; among nine millions of whom there are eight which have no votes in electing members of Parliament. Every objec tion, therefore, to the dependency of the colonies upon Parliament, which arises to it upon the ground of representation, goes to the whole present Constitution 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 fancies 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 human institution. To what purpose, then, are arguments drawn from a distinction, in which there is no real differenceof a virtual and actual representation? A member of Parliament, chosen for any borough, represents not only the constituents and inhabitants of that particular place, but he represents 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 in habitants of all the colonies and dominions of Great Britain; and is, in duty and. conscience, bound to take care of their interests.

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