Page:A biographical dictionary of eminent Scotsmen, vol 6.djvu/292

80 even when compared to the equity court of England; but the pretorian branch was the equity of the Roman law. It is probable that the institute was at all times a more pleasing study to the elegant mind of lord Mansfield, than the rigid common and statute law of England. He frequently made reference to it, and may hare been induced to study it, in capacitating himself for pleading Scotch appeals; yet he is understood to have been the author of the chapter in Blackstone's Commentary, which answers the arguments of lord Kames in favour of the extension of equity in England. His opinions on the rights of jury trials in cases of libel, have met with still more extensive censure. He maintained "that the printing and sense of the paper were alone what the jury had to consider of." The intent with which this was done, (as it is singularly termed the law,) he retained for the consideration of the court. In the cases of Almon and of Woodfall, he so instructed the jury. In the latter case, the verdict was "guilty of printing and publishing only." There was no charge, except for printing and publishing, in the information, the intent being for the consideration of the court. On the motion for arrest of judgment, it is clear from lord Mansfield's opinion, that, had the verdict been "guilty of printing and publishing," he would have given judgment on the opinion of the court as to intent; but the word "only" was a subject of doubt, and a new trial was ruled. The verdict, in this case, was "not guilty." Lord Mansfield could not prevent such a verdict, without unconstitutional coercion; but he accommodated it to his principles, by presuming that the meaning of such a verdict was a denial as to the fact of printing and publishing, and that the juror who gave it, in consideration of the intent, perjured himself. Yet Junius accomplished a signal triumph over him, in making him virtually contradict his favourite principle, in a theory too nice for practice, when he said, that "if, after all, they would take upon themselves to determine the law, they might do it; but they must be very sure that they determined according to law: for they touched their consciences, and they acted at their peril." A declaratory act, introduced by Fox, has since put a stop to the powers of a judge, to infringe in a similar manner the rights of juries. In only two instances has lord Mansfield been accused of wilfully perverting his judicial authority. In the Douglas cause, it must be admitted that his address to the house was more like the speech of an advocate, than of a judge. It is believed to have swayed the house, although the decision was not, as in the general case, unanimous in favour of the side taken by the law officer who gives his opinion. Mr Stuart, the agent for the losing party, wrote letters to lord Mansfield, solemnly charging him with improper conduct as a judge. Of these very beautiful specimens of composition, it is scarcely possible to judge of the merit, without a knowledge of the elaborate cause with which they are connected; but the reasoning is clear and accurate, and the calm solemnity of the charges, with the want of that personal asperity, or dependence on satirical or declamatory powers, which appear in Junius, must have made these letters keenly felt, even by a judge conscious of rectitude. The other charge was brought against him by Junius, for admitting to bail a thief caught in the manner, or with the stolen property, contrary to law. The thief was a man of large property, his theft trifling, and, probably, the consequence of a species of mental disease of not unfrequent occurrence. The reason of granting bail was, we believe, to enable him to dispose of his property to his family; and the act probably one of those in which the lord chief justice stretched the law, to what he conceived a useful purpose.

A brief narrative of his political proceedings, while on the bench, will suffice, as their merits are matter of history. He attended the meetings of the council