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justice has been done by abler pens than mine to the separate merits of
your life and character. Let it be my humble office to collect the sweets till their united virtue tortures the sense.
"Permit me to begin with paying a just tribute to Scotch sincerity wherever I find it. I own I am not apt to confide in the professions of gentlemen of that country; and when they smile, I feel an involuntary erection to guard myself against mischief. With this general opinion of an ancient nation, I always thought it much to your lordship's honour that in your earlier days you were but little infected with the prudence of your country. You had some original attachments which you took every proper opportunity to acknowledge. The liberal spirit of youth prevailed over your native discretion. Your zeal in the cause of an unhappy prince was expressed with the sincerity of wine and some of the solemnities of religion. This, I conceive, is the most amiable point of view in which your character has appeared. Like an honest man you took that part in politics which might have been expected from your birth, education, country, and connections. There was something generous in your attachment to the House of Stuart. We lament the mistake of a good man, and do not begin to detest him until he affects to renounce his principles. Why did you not adhere to that loyalty you once professed ? Why did you not follow the example of your worthy brother? With him you might have shared in the honour of the Pretender's confidence ; with him you might have preserved the integrity of your character; and England, I think, might have spared you without regret. Your friends will say, perhaps, that although you deserted the fortunes of your liege lord, you have adhered firmly to the principles which drove his father from the throne; that without openly supporting the person, you have done essential service to the cause, and consoled yourself for the loss of a favourite family by reviving and re-establishing the maxims of their Government. This is the way in which a Scotchman's understanding converts the errors of his heart. My lord, J
acknowledge the truth of the defence, and can trace it throughout all your conduct. I see through your whole life one uniform plan to enlarge the power of the Crown at the expense of the liberty of the subject.”
It must be confessed that this is brilliant writing, and that there is a deadly ingenuity in the way in which the writer compliments Mansfield on that part of his conduct which he would willingly have had forgotten.
Mansfield suffered much in public estimation from his alliance with Lord Bute, and the influence he exercised, or was supposed to exercise, over the politics of the Cabinet. He laid himself open to attack, moreover, by presiding on the woolsack as Speaker of the House of Lords, and virtually exercising almost all the functions of the Lord Chancellor, while keeping the great seal in commission. To our modern ideas the position of Chief Justice seems incompatible with that of an active member of the Government, and the combination of political partisanship with judicial administration cannot but be productive of unfortunate consequences.
Mansfield himself was probably not unconscious of this fact, and refrained from replying to the invectives of Junius, because he felt that they were not without justification. The Attorney-General advised a prosecution; but the Chief Justice prudently refused to allow Junius another opportunity for inquiring into all the circumstances of his political career.
At this time his hands were fully occupied in defending himself against parliamentary assaults. In the House of Commons, Mr. Sergeant Glyn moved for a committee to inquire into the proceedings of the judges in Westminster Hall, particularly in cases relating to the liberty of the press ; and in the course of the debate, Mansfield's conduct was severely censured by Dunning and Edmund Burke.
In the House of Lords the attack was still more formidable. It was led by the Earl of Chatham, and supported by Lord Camden. The defence was not without dignity :
" Judges," said Mansfield, “cannot go astray from the express and known law of the land. They are bound by oath punctually to follow the law. I have ever made it the rule of my conduct to do what was just, and, conscious of my own integrity, am able to look with contempt upon libels and libellers. Before the noble lord, therefore, arraigns my judicial character, he should make himself acquainted with facts. The scurrility of a newspaper may be good information for a coffee-house politician, but a peer of Parliament should always speak from higher authority; though, if my noble accuser is no more acquainted with the principles of law in the present point than in what he advanced to support the motion, when he told us an action would lie against the House of Commons for expelling Mr. Wilkes, I am fearful the highest authorities will not extend his ideas of jurisprudence, nor entitle him to a patient hearing upon a legal question in this assembly.”
Lord Chatham rejoined :
“If I conceive the noble lord on the woolsack right, or have been rightly informed by the public prints—from which, I candidly confess, I originally derived my information on the subject —the doctrine of the King's Bench is, that a libel or not a libel is a question of law to be decided only by the court, and the sole power of the jury is to determine upon the fact of printing and publishing. This I understand to be the noble lord's opinion, but this I never understood to be the law of England; on the contrary, I always understood that the jury were competent judges of the law as well as of the fact, and, indeed, if they are not, I can see no essential benefit arising from their institution to the community. . . . I am therefore desirous—I am earnestly desirous—that a day may be appointed for examining into the conduct of such judges as dare to establish this anti-constitutional practice in our courts. I am well assured from the most respectable authority, that the practice is immediately subversive of our dearest rights, our most invaluable liberties; and, profligate as the times may be, there are objects that interest should lead us to defend, even if we are wholly unactuated by principle."
After Lord Camden had spoken, in terms even more bitter and direct, the Duke of Grafton, on behalf of the Government, moved the adjournment of the House, which
carried by a large majority. Here it would have been well for Lord Mansfield to have let the matter rest; but, smarting under the censure which Burke and Dunning had heaped upon him in the Lower Chamber, he next day intimated that he had a matter of importance to submit to the Peers, and moved that they should be summoned
for the purpose.
Accordingly, on the 10th of December, their Lordships assembled in large numbers, eagerly expecting “a passage of arms,” in which Toryism, as represented by Lord Mansfield, was to lay low the principle of Anarchy, as represented by Lords Chatham and Camden. But in the interval Lord Mansfield's courage had oozed out, and his constitutional timidity had got the better of him. To the intense surprise of the House, he contented himself with saying that he had left with the clerk of the House a copy of the judgment of the Court of King's Bench, in the case of The King against Woodfall, and that their Lordships might read it and take copies of it if they pleased. On an inquiry from Lord Camden whether he meant to have the paper entered on the Journals, he replied : “No, no; only to leave it with the clerk.”
On the following day, Lord Camden, addressing the House, said that he considered the paper delivered in by the Chief-Justice as a personal challenge, and he accepted it. In direct contradiction to Lord Mansfield, he maintained that his doctrine was not the law of England. And he proposed four questions to Lord Mansfield, founded on the aforesaid opinion of the Court of King's Bench, to which he desired categorical answers.
“I have the highest esteem,' said Lord Mansfield, with manifest uneasiness, 'for the noble and learned lord who thus attacks me, and I have ever courted his esteem in return. From his candour I had not expected this treatment. I have studied the point more than
any other in my life, and have consulted all the judges on it, except the noble and learned lord, who appears to view it differently from all others. But this mode of questioning takes me by surprise. It is unfair. I will not answer interrogatories.
“Lord Chatham, sarcastically: 'Interrogatories! Was ever anything heard so extraordinary? Can the noble and learned lord be taken by surprise when, as he tells us, he has been considering the point all his life, and has taken the opinions of all the judges upon it ?"
“ Lord Camden: 'I am willing that the noble and learned lord should have whatever time he deems requisite to prepare himself, but let him name a day when his answers may be given in, and I shall then be ready to meet him.'
“Lord Mansfield: 'I am not bound to answer, and I will not answer, the questions which the noble and learned lord has so astutely framed and so irregularly administered; but I pledge myself that the matter shall be discussed.'
The Duke of Richmond here congratulated the House