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LETTER XLI.

TO

THE RIGHT HON. LORD MANSFIELD.

MY LORD,

November 14, 1770. The appearance of this letter will attract the curiosity of the public, and command even your lordship's attention. I am considerably in your debt;. and shall endeavour, once for all, to balance the account. Accept of this address, my lord, as a prologue to more important scenes, in which you will probably be called upon to act, or suffer.

You will not question my veracity, when I assure you, that it has not been owing to any particular respect for your person, that I have abstained from you so long. Besides the distress and danger with which the press is threatened, when your lordship is party, and the party is to be judge, I confess I have been deterred by the difficulty of the task. Our language has no term of reproach, the mind' has no idea of detestation, which has not already been happily applied to you, and exhausted. Ample 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 scattered 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 emotion 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 early 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 banished house of Stuart. We lament the mistakes 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 brothert? 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 fortune 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 your

* This man was always a rank Jacobite. Lord Ravensworth produced the most satisfactory evidence of his having frequently drank the pretender's health upon his knees.

+ Confidential secretary to the late pretender. This circunastance confirmed the friendship between the brothers.

self for the loss of a favourite family, by reviving and establishing the maxims of their government. This is the way in which a Scotchman's understanding corrects the error of his heart. : My lord, I acknowledge the truth of the defence, and can trace it throogh all your conduct. I see through your whole life one uniform plan to enlarge the power of the crown, at the expence of the liberty of the subject. To this object your thoughts, words, and actions, have been constantly directed. In contempt, or ignorance, of the common law of England, you have made it your study to introduce into the court where you preside, maxims of jurispruđence unknown to Englishmen. The Roman code, the law of nations, and the opinion of foreign civilians, are your perpetual theme; but who ever heard you mention Magna Charta, or the Bill of Rights, with approbation, or respect? By such treacherous arts, the noble simplicity and free spirit of our Saxon laws were first corrupted. The Norman conquest was not complete, until Norman lawyers had introduced their laws, and reduced slavery to a system. This one leading principle directs your interpretation of the laws, and accounts for your treatment of juries. It is not in political questions only, (for there the courtier might be forgiven,) but let the cause be what it may, your understanding is equally on the rack, either to contract the power of the jury, or to mislead their judgment. For the truth of this assertion, I appeal to the doctrine you

delivered in Lord Grosvenor's cause. An action for criminal conversation being brought by a peer against a prince of the blood, you were daring enough to tell the jury, that, in fixing the damages, they were to pay no regard to the quality, or fortune, of the parties; that it was a trial between A and B; that they were to consider the offence in a moral light only, and

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give po greater damages to a peer of the realm than to the meanest mechanic. I shall not attempt to refute a doctrine, which, if it was meant for law, carries falsehood and absurdity upon the face of it; but if it was meant for a declaration of your political creed, is clear and consistent. Under an arbitrary government, all ranks and distinctions are confounded. The honour of a nobleman is no more considered than the reputation of a peasant; for, with different liveries, they are equally slaves.

I Even in matters of private property, we see the same bias and inclination to depart froin the decisions of your predecessors, which you certainly ought to receive as evidence of the common law. Instead of those certain positive rules by which the judgment of a court of law should invariably be determined, you have fondly introduced your own unsettled notions of equity and substantial justice. Decisions, given upon such principles, do not alarm the public so much as they ought, because the consequence and tendency of each particular instance is not observed, or regarded. In the mean time, the practice gains ground; the court of King's Bench becomes a court of equity; and the judge, instead of consulting strictly the law of the land, refers. only to the wisdom of the court, and to the purity of his own conscience. The name of Mr. Justice Yates will naturally revive in your mind some of those emotions of fear and detestation with which you always beheld him. That great lawyer, that honest man, saw your whole conduct in the light that I do. After years of ineffectual resistance to the pernicious principles introduced by your lordship, and uniformly supported by your humble friends upon the beach, he determined to quit a court whose proceedings and decisions he could neither assent to with honour, nor oppose with success.

The injustice done to an individual * is sometimes of service to the public. Facts are apt to alarm us more than the most dangerous principles. The sufferings and firmness of a printer have roused the public attention. You knew and felt, that your conduct would not bear a parliamentary inquiry; and you hoped to escape it by the meanest, the basest sacrifice of dignity and consistency, that ever was made by a great magistrate. Where was your firmness, where was that vindictive spirit, of which we have seen so many examples, when a man, so inconsiderable as Bingley, could force you to confess, in the face of this country, that, for two years together, you had illegally deprived an English subject of his liberty, and that he had triumphed over you at last? Yet I own, my lord, that yours is not an uncommon character. : Women, and men like women, are timid, vindictive, and irresolute. Their passions counteract each other; and make the same creature at one moment hateful, at another contemptible. I fancy, my lord, some time will elapse before you venture to commit another Englishman for refusing to answer interrogatories t.

The doctrine you have constantly delivered in cases of libel, is another powerful evidence of a settled plan to contract the legal power of juries, and to draw questions,

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The oppression of an obscure individual gave birth to the famous habeas corpus act, of 31st Charles II., which is frequently considered as another magna charta of the kingdom.-BLACKSTONE, iii. 135.

+ Bingley was committed for contempt, in not submitting to be examined. He lay in prison two years, until the crown thought the matter might occasion some serious complaint; and therefore he was let out in the same contumelious state he had been put in, with all his sins about him, unanointed and unanealed. There was much coquetry between the court and the attorney-general, about who should undergo the ridicule of letting him escape. ---Vide anó: ther Letter to ALMON, P. 189.

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