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rehned. Pitt sought power; Murray, office and emolument. Two such men could not but differ; and differing as they did for life, it was natural that the one should distrust or despise, and the other fear, perhaps hate. In native talent, it would be diffi cult to say which had the advantage; but the mind of Murray was more perfectl trained, and his memory enriched with larger stores of knowledge. "In closeness of argument," says an able writer, "in happiness of illustration, in copiot sness and grace of diction, the oratory of Murray was unsurpassed: and, indeed, in all the qualities which conspire to form an able debater, he is allowed to have been Pitt's superior When measures were attacked, no one was better capable of defending them; when reasoning was the weapon employed, none handled it with such effect; but against declaratory invective, his very temperament incapacitated him for contending with so much advantage. He was like an accomplished fencer, invulnerable to the thrusts of a small sword, but not equally able to ward off the downright stroke of a bludgeon." In 1754 Mr. Murray was appointed Attorney General, and soon after made leader of the House of Commons under the Duke of Newcastle. "At the beginning of the session," says Horace Walpole, "Murray was awed by Pitt; but, finding himself sup ported by Fox, he surmounted his fears, and convinced the House, and Pitt too, of his superior abilities. Pitt could only attack, Murray only defend. Fox, the boldest and ablest champion, was still more forward to worry; but the keenness of his saber was blunted by the difficulty with which he drew it from the scabbard—I mean, the hesitation and ungracefulness of his delivery took off from the force of his arguments. Murray, the brightest genius of the three, had too much and too little of the lawyer; he refined too much and could wrangle too little for a popular assembly." We have seen already, in the life of Lord Chatham, what difficulties Murray had to encounter that session in sustaining the ministry of Newcastle, and the crushing force with which he was overwhelmed by his opponent. In 1756 he resolved to endure it no longer, and on the death of Sir Dudley Ryder he demanded the office of Chief Justice of the King's Bench. Newcastle refused, remonstrated, supplicated. "The writ for creating Murray," he declared, "would be the death-warrant of his own administration." He resisted for several months, offering the most tempting bribes, including a pension of £6000 a year, if he would only remain in the House until the new session was opened, and the address voted in reply to the King's speech. Murray declared, in the most peremptory terms, that he would not remain "a month or a day even to support the address;" that "he never again would enter that assembly." Turning with indignation to Newcastle, he exclaimed, "What merit have I, that you should lay on this country, for which so little is done with spirit, the additional burden of £6000 a year;" and concluded with declaring his unalterable determination, if he was not made Chief Justice, to serve no longer as Attorney General. This brought Newcastle to a decision. On the 8th of November, 1756, Murray was sworn in as Chief Justice, and created a peer with the title of Baron Mansfield. At a later period he was raised to the earldom.

In entering on his new career, he was called upon to take public leave of his associates of Lincoln's Inn. On that occasion he was addressed in an elegant speech by the Honorable Charles Yorke. The reader will be interested in Mr. Murray's reply, as showing with what admirable dignity and grace he could receive the compliments bestowed upon him, and turn them aside in favor of another.

"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 of partiality which is the occasion of them. To deserve uch praises is a worthy object of ambition, and from such a tongue flattery itself is pleasing. "If I have had, in any measure, success in my profession, it is owing to the great man whe has presided in our highest courts of judicature the whole time I attended the bar.1 It was im

1 Lord Hardwicke, father of Mr. Yorke.

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possible to attend to him, to sit under him every day, without catching some beams from his ligt 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, ar 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 expe rience 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."

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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; wher ever 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 Bunow, 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 ~f Lord Mansfield was greater than

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In the House of Commons. The calmness and dignity of the assembly were better 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. 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.

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"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 appropriate tr the House of Lords.

SPEECH

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

INTRODUCTION.

IN January, 1766, a plan was brought into the House of Commons, under Lord Rockingaa s mustry 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 doc trine; 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 hearing 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 themselves, and that the English Parliament could not tax them. "But," said he, even supposing the Americans have nc exclusive right to tax themselves, it would be good policy to give it to them, instead of offensively exer ing 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 argu ments 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 ti e nress by Lord Mansfield, and may therefore be relied on as authentic.

nue of right,

SPEECH, &c.

MY LORDS, I shall speak to the question | The question strictly as a matter of right; for it is not expedi- a proposition in its nature so perfectly sacy. 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 ore has had more cast upon him than myself;

Lives of the Chancellors. v., 206.

but I never was biased by any consideration of 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 grea pleasure I have heard the noble Lord who move the resolution express himself in so manly and sensible a way, when he recommended a dispassionate debate, while, at the same time, be urged the necessity of the House coming to such a resolution, with great dignity and propriety of argument.

from ancient

practices

I shall endeavor to clear away from the ques tion, all that mass of dissertation and Refutation ☛ learning displayed in arguments which arguments have been fetched from speculative records and men who have written upon the subject of government, or from ancient records, as being little to the purpose. I shall insist that these records are no proofs of our present Con stitution 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. Noth 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. 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.

colonies crea

and therefore

Great Britain.

But our colonies, on the contrary, emigrated under the sanction of the Crown and Direct Argu Parliament. They were modeled ments. 1. The gradually into their present forins, ted by charter. respectively, by charters, grants, and dependent on statutes; but they were never separated from the mother country, or so emanci pated as to become sui juris. There are sevI 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 di ing 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 Ir Constitution at this day. Henry VIII. issued & writ to Calais to send one burgess to Parliament. 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.

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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.

English law,

knowledged

But if there was no express law, or reason founded upon any necessary infer- 2. They have ence from an express law, yet the submitted to usage alone would be sufficient to and thus ac support that authority; for, have not their depend the colonies submitted ever since ence. 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 appeared 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 ju risdiction here, to settle the disputes among their own governments. I well remember several references on this head. when the late Lord

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