application of the rules of evidence may be studied to good advantage in the case of Hamilton v. Davis. In the case of Edmonstone v. Edmonstone he struck off, according to Lord Campbell, the fetters of half the entailed estates in Scotland. In Somersett's case he enlisted English law in the cause of freedom.

In this great achievement in constructive jurisprudence, Lord Mansfield necessarily relied to a great extent upon the original powers of his own mind; he dealt with principles, rather than with precedents. "The law of England," he said, "would be a strange science indeed if it were decided upon precedents only. Precedents only serve to illustrate principles, and to give them a fixed authority, But the law of England, which is exclusive of positive law enacted by statute, depends upon principles, and these principles run through all the cases, according as the particular circumstances of each have been found to fall within one or the other of them." "As times alter," he said in another case," "new customs and new manners arise, and these occasion exceptions, and justice and convenience require different applications of the exceptions within the general rule." But it must not be supposed that he was indifferent to the necessity of established rules. In Rex v. Mayor of Carmarthen, for instance, he gave full effect to a mere technical objection, while contriving a method by which the merits of the case could be reached. "General rules," he said, "are wisely established for attaining justice with ease, certainty, and dispatch. But, the great end of them being to do justice, the courts are to see that it be really attained. What I have suggested seems to be the true way to come at justice, and what we ought therefore to do; for the genuine test is, boni judicis ampliare justiciam, not jurisdictionem, as it has been often cited." He frequently deferred to the authority of prior adjudications establishing property rights, although lamenting their adoption as inconvenient and absurd, or founded upon the subtleties of artificial reasoning. But in adverting to an erroneous practice of computing interest upon a debt to the commencement of an action, he expressed his satisfaction in being able to correct a practice which was not founded in law, but in a mistake, observing that, when an error upon which a rule of property depends has taken root, and become established, it ought to be adhered to by judges until the legislature thinks proper to alter it, lest the new determination should have a retrospective effect, and shake ques

25 Burrow, 2732.

'Jones v. Randall, Cowper, 37.

1 Burrow, 292.

2 Pat. App. 255.

Corbett v. Poelnitz, 1 Term R. 5.

tions already settled; but the reformation of erroneous points of practice could have no such consequences, and might therefore be altered at pleasure when found to be absurd or inconvenient. Mansfield has been charged with leaning too much to equitable principles, and certainly some of his decisions have been departed from on this ground. It cannot be denied that the amelioration of the common law was to a great extent effected by the introduction into the workings of the elder system of principles developed by its rival. Mansfield, whose practice had been largely in chancery, made no concealment of his preference. He said he never liked the law as much as when it was most like equity. Speaking of actions on the common counts for money had and received and money paid (the means by which much of the improvement of the common law was brought about), he said: "It lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through imposition (express or implied), or extortion, or oppression, or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances. In one word, the gist of this kind of action is that the defendant, upon the circumstances of the case, is obliged, by the ties of natural justice and equity, to refund the money."

It is obvious from such a statement that the common law had gone far towards adopting the principles of equity. Some two years later Justice Buller, who often sat in equity for Thurlow, expressly compared the action on the common counts to a bill in equity; and therefore, he said, the plaintiff must show that he had equity and conscience on his side. The process, in fact, which Blackstone described as working around him, was continued long after his day, until in many cases, where it granted relief, rather than conducted an administration, and chiefly by the development of the common law in the manner described, the extraordinary jurisdiction of the court of chancery came to be concurrent with that of the courts of common law. A scholar, and well read in the civil law, Mansfield was charged by Junius with the offense of corrupting the simplicity of the common law with principles drawn from the corpus juris. His preference for reason, rather than routine, offended the pedants. His learning, also, has been questioned; and perhaps his mind was not deeply imbued with the more recondite knowledge of the profession. So great, however, was the grasp of his intellect, and so lively and quick

Moses v. Macferlan, a Burrow, 1012. •Letter XLI.

Straton v. Rastall, a Term R. 366.

his powers of apprehension, that his sagacity seemed able to dispense with technical learning.

In any consideration of Mansfield's career, much allowance must be made for his admirable method and manner. He had essentially a legal intellect,-clear in thought, accurate in discrimination, sound in judgment, and strong in reasoning power. To an adequate knowledge of jurisprudence, and large experience in the details of practice, he added a remarkable facility in the dispatch of business, and extraordinary powers of application. According to the testimony of Lord Sandwich, "his talents were more for common use, and more at his fingers' ends," than any man of the time. He excelled particularly in exposition,-the principal feature of judicial composition. Burke said that his statement was itself worth the argument of any other man. He arranged the facts in an order so lucid, and with so nice a reference to the conclusion to be founded on them, that his hearers fell into the very train of thought that he wished them to take when they should come to consider his argument, and inclined them to be convinced before they heard it. The observations which followed seemed to suggest trains of thinking, rather than to draw conclusions, and so skillfully did he conceal his art that his hearers thought they formed their opinion in consequence of the workings of their own minds. Omitting all unnecessary ideas, he seized with great acumen on the strong points of a subject, which he held constantly before the mind as he moved toward the desired result. Although he was always impersonal, it was the effect of the most subtle argumentation and refined dialectic. To this he added a rare power of detecting remote analogies,-extracting, by the aid of a refined logic, from the doctrines of our old law, general principles, and applying those principles in the determination of questions unknown in earlier times. The administration of law enlisted all his energies. It appealed to his imagination and his heart, as well as his judgment. "A judge on the bench," he once said to Garrick, "is now and then in your whimsical situation, between tragedy and comedy,-inclination pulling one way, and a long line of precedents another."

Such was his ascendancy over his colleagues, who were by no means insignificant lawyers, that the only case during his long service in which there was an irreconcilable difference of opinion was the case of Perrin v. Blake, in 1769, on the question of literary copyright at common law. Not a single bill of exceptions was ever tendered to his direction, and of his numerous judgments only two were directly reversed. His views on the re

spective province of the court and jury in cases of criminal libel, and on the validity of general warrants, conflicted with the public sentiment of his time, and brought him into public disfavor, although they were abundantly supported by the authority of his predecessors. 10

So great was his contemporary reputation that his court was largely attended to hear him deliver judgment, and his judicial opinions were often printed in the newspapers. To law students he was particularly courteous and attentive. Dunning (afterwards Lord Ashburton) once said to Sir Joshua Reynolds: "I can well remember when I used to attend the court of law as a student for instruction; and I always made it a point of going whenever I understood that Mansfield was to speak. This was as great a treat to me, Sir Joshua, as a sight of the finest painting by Titian would be to you." "Ninety-nine times in a hundred he was right," said Thurlow, "and, when once in a hundred he was wrong, ninetynine men in a hundred could not discover it."

More than a century has gone by since Mansfield finished his labors, but his fame is secure. In the words of Mr. Justice Story's eulogy:

"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 juridical refinement shall be infused into the municipal code,-the name of Mansfield will be held in reverence. . . The maxims of maritime jurisprudence which he engrafted into the stock of the common law are not the exclusive property of a single age or nation, but the common property of all times and all countries. They are built upon the most comprehensive principles and the most enlightened experience of mankind. He designed them to be of universal application, considering, as he himself declared, the maritime law to be, not the law of a particular country, but the general law of nations. Non erit alia lex Romae, alia Athenis; alia nunc, alia posthea; sed, et apud omnes gentes et omni tempore, una eademque lex obtinebit."

.

10 See the cases of Wilkes, Almon, Woodfall, and Miller.

JUDICIAL OPINION IN THE case of the CHAMBERLAIN OF LONDON AGAINST EVANS, IN THE

HOUSE OF LORDS, 1767.

STATEMENT.

This case arose out of an ingenious plan to build a new mansion house for the lord mayor of London at the expense of dissenters. Under the protection of the toleration act, the dissenters had become prosperous and wealthy, and it was proposed to levy contributions upon their wealth by means of a municipal by-law imposing a fine of £600 on any person who should be elected sheriff and decline to serve. Some wealthy dissenter was chosen sheriff, and, as the test and corporation acts rendered him incapable of serving, he was compelled to decline. He was then fined £600, under the by-law. Numerous appointments were thus made, and £15,000 were actually paid in from this source. At length Allan Evans, who had been selected as a victim, refused to pay the fine. In an action by the city to recover the fine, he pleaded his rights under the toleration act, but judgment was rendered against him. On appeal to the court of common pleas, this judgment was reversed, whereupon the city took the case before the house of lords on a writ of error. The judges of the court of king's bench were consulted, and all but one were of the opinion that Evans' plea was a good defense. In moving judgment in the house of lords, Lord Mansfield made the following speech, which is one of the best specimens of his style. It has the characteristics of an argument, rather than a judgment, except that, as an opinion on the case, it assumes an acquaintance with the facts. Judgment was entered in accordance with Lord Mansfield's motion.

OPINION.

My Lords: As I made the motion for taking the opinion of the learned judges, and proposed the question your lordships have been pleased to put to them, it may be expected that I should make some further motion, in consequence of the opinions they have delivered.

In moving for the opinion of the judges, I had two views. The first was that the house might have the benefit of their assistance in forming a right judgment in this cause now before us, upon this writ of error. The next was that, the question being fully discussed, the grounds of our judgment, together with their exceptions, limitations, and restrictions, might be clearly and certainly known, as a rule to be followed hereafter in all future cases of the like nature; and this determined me as to the manner of wording the question, "How far the defendant might, in the present case, be allowed to plead his disability in bar of the action. brought against him?"

The question thus worded shows the point upon which your