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mercial law, we may presume that the reports contain all those of much difficulty or importance that were brought into discussion; and accordingly we may learn pretty satisfactorily from the reports how much he did towards founding the present commercial law; and that he did a great deal in establishing accurate doctrines, and that he rendered a still more important service to jurisprudence by liberating it from the embarrassment of arbitrary rules, and raising it from frivolous discussions, there can be no doubt. At the same time it is equally certain that no other judge of any authority has indulged in a wider latitude of motives and reasons for decisions, or thrown out a greater number of loose or erroneous propositions.
If the question be put whether his juridical accomplishments have been overrated, we should certainly hesitate very much to reply in the negative. Popularity goes in the gross, and men entitled to a great reputation on some particular grounds, not unfrequently enjoy it upon others also, most foreign to their merits. Lord Mansfield was pusillanimous, and had no title to the character intended by some one of the old reporters, by the expression, a resolute judge, yet he had no timidity in his speculations, he was not oppressed by a veneration for
precedents or fear of innovation. His wholesale assumptions and magisterial tone have an imposing air, and his finely toned voice, flow of language, and graceful action, with his various accomplishments, and the conspicuous part he acted, combined to give a splendor to his name during his life, and doubtless even to the present day give a weight to his legal opinions which is not wholly borne out by their intrinsic merit, considered as juridical disquisitions. Other English judges whose names appear much less frequently and less conspicuously in the history of the law, have perceived its scientific principles with greater clearness, and adhered to them with a more rigid exactness, and been capable of seizing upon truth and right, with a more sure sagacity, and more satisfactorily reconciling the law to them. These remarks are borne out, as it appears to us, by the cases above referred to, and we have taken notice of the greater part of the interesting ones, on the branch of law in question, decided in the king's bench during Lord Mansfield's time.
We add a few anecdotes and a general character of Lord
Mansfield from a very able sketch of his life in the tenth and eleventh numbers of the London Law Magazine.
Though his general deportment on the bench was characterized quite as much by dignity, as by courtesy and suavity of manner, he did not consider it incumbent upon him to preserve so much stateliness, but that he might occasionally relax the muscles of the court with a jest. When Macklin had recovered seven hundred pounds damages in an action for a conspiracy to hiss him off the stage, and after the delivery of the verdict declared it was not his intention to demand the sum, he received for his generosity and forbearance a compliment from the chief justice, which he afterwards used to tell of with as much delight as of Pope's exclamation on seeing him play the part of Shylock. “Mr. Macklin,” said his lordship, “I have many times witnessed your performances with great pleasure ; but in my opinion you never acted so finely as upon this occasion.” A prisoner being once tried before him for stealing a watch, he was directing the jury to find the value of it under one shilling, with the view of avoiding the conviction for grand larceny, when the prosecutor interrupted him by calling out : “A shilling, my lord! why the very fashion of it cost me more than five pounds! “Oh! sir,” said Lord Mansfield, “ we cannot think of hanging a man for fashion's sake.” The facetious Serjeant Davy had, one morning, been subjecting a Jew to a long cross-examination, in order to prove his incompetence to be received as bail. The amount required happened to be a very small one, and the Jew was dressed in a tawdry suit all bedizened with tarnished lace. His lordship at length interfered : “ Nay, brother Davy,” he said, “you surely make too much of this trifle — don't you see the man would burn for a greater sum?” With another brother of the coif (Hill) he sometimes ventured upon a species of joke, that, it must be owned, almost trespassed on the bounds of indecorum. The Serjeant was a man who possessed deep and varied stores of learning. He had been distinguished at Cambridge both as a classical scholar and mathematician, and had since acquired extensive reputation for the profundity of his * legal knowledge, particularly on the subject of real property. Indeed there is no doubt he had more of mere legal learning than Lord Mansfield; but he was so wholly deficient in the art of turning it to account in public, that there was as much difference betweeen the practical value of the knowledge possessed by them, as between that of a block of coal and a diamond, both of which are but different modifications of the self-same substance. Among his contemporaries at the bar he always went by the name of Serjeant Labyrinth ; for he never attempted to argue a case without speedily involving himself in such a maze as bewildered himself no less than his hearers. On such occasions his intellect and his senses would seem alike enwrapped in a mist; he would stand motionless in one posture, his eyes half closed or dimly fixed on vacancy, and, wholly unconscious of the presence of the auditory, would roll forth sentence after sentence, heap tautology on tautology, and endeavoring to explain one obscurity, go on propounding others still more obscure, like a heavy-laden horse floundering in soft mire, and sinking the deeper the more he labors to extricate himself. It may be supposed the gravity of the bar was not altogether proof against so ridiculous an exhibition. By the time smiles had increased to tittering, and tittering was well nigh expanding itself into a most audible laugh, Lord Mansfield would generally interfere, and call upon the learned Serjeant by name. As he was rather deaf, and besides wholly wrapt up in his own speculations, the call was generally repeated three or four times before he stopped ; and then some inquiry after the state of his health would often turn out to be the only matter for which the chief justice had interrupted him. We know not whether Serjeant Hill inwardly resented this sort of quizzing, but it certainly is sufficiently evident from the notes he was in the habit of writing on the margin of his copy of Burrow's Reports (which notes are inserted in the modern edition of that work), that he felt any thing but a friendly disposition towards Lord Mansfield.
"The long and eminently useful career of this illustrious man was finally closed on the 19th of March, 1793, he being then in his eighty-ninth year. Though not free from the infirmities of age during the latter part of his life, he underwent little or no bodily suffering. Nor was his death occasioned by any painful or violent disease. The first symptoms of illness were felt on Sunday, March 10th: he shortly afterwards fell into a kind of stupor, and this settled into a trance so complete, that no other mode could be devised to afford him the slightest sustenance, except that of occasionally wetting his lips with a feather dipped in wine or vinegar. On the 15th very little appearance of life could be detected; some appearance of mortification began already to be visible; and in this state he lingered on till the 19th, when he sank by an almost imperceptible transition into death. On the morning of the 28th of the same month his body was privately interred in the same tomb with the remains of his lady, in Westminster Abbey ; according to a wish expressed in his will, that he might be suffered to show this mark of respect to the place of his early education.'
• With the exception of the celebrated answer (drawn up in 1752, when he was solicitor-general) to the memorial of M. Michel, the secretary to the Prussian embassy, which, though it bears the signature of other law officers besides himself, we know to be entirely his composition, we are not aware that any proofs of his talents as a writer have been preserved. The protest against the repeal of the American stamp act, which was entered on the journals of the house of lords in 1776, during the time when he was in opposition to the administration, is also supposed to have been dictated by him throughout. It is allowed to be one of the ablest performances contained in the records of parliament; as the former production assuredly is a model for state papers. The general belief, which is expressed in the verses of Cowper we have already quoted, was, that several manuscript compositions of his own were consumed by the conflagration of his house in Bloomsbury-square; but this was merely a vague supposition, and as it is well known that he never was fond of writing, we may infer that it was incorrect. The grandest monument of his genius is assuredly the commercial jurisprudence which he created and brought to maturity.
• In stature Lord Mansfield was not above the middle size. His personal appearance was extremely prepossessing, and this natural advantage, which is of more importance to an orator than is perhaps usually supposed, he improved by the consummate grace and propriety of his gesture in speaking; in the same manner as he gave additional effect to the natural melody of his voice, by his skill in modulating it. The brilliancy and vivacity of his eye was such as could not fail to catch the attention, and gave token of the acuteness and vivacity of his intellect. The general expression of his countenance is probably familiar to most of our readers, from the many likenesses of him that have
been painted, and reproduced in the shape of engravings. The originals of two miniatures by Vanloo, taken in the earlier part of his professional life, are still, we believe, in the possession of private individuals. Besides the portrait painted by Martin for Christ Church, there is another by the same artist, representing him in the court dress he wore when presented to the king and queen of France, during a short visit he paid to his nephew at Paris in the year 1774. He also sat twice to Copley at the request of his friend Justice Buller ; and once to Sir Joshua Reynolds, on the solicitation of the corporation of London, who were anxious to adorn Guildhall with the portrait of one who had done so much, on that very spot, to claim the gratitude and the respect of the merchants of England. Trinity Hall, Cambridge, has a bust of him by Nollekens.'
1. Charles River Bridge Company v. The Warren Bridge
Company. Reported 7 Pick. Rep. 344. 2. Enfield Bridge Company v. The Connecticut River Com
pany. Reported 7 Conn. Rep. 28.
The subjects in dispute in these two cases, were the conflicting rights to certain franchises created by the respective legislatures of Massachusetts and Connecticut. Some of the incidents of franchises, and the judicial discussions in the cases referred to, we propose to consider.
Franchises are privileges conferred by the government, and vested in individuals. They are not necessarily such as are exercisable by the government itself, before the grant. Government may create a franchise exempting certain individuals from the operation of a general law, which restrained a common right. In all cases there is an implied covenant between the parties — by the government on the one hand, not to invade the rights vested; and by the grantees of the franchise, to execute the conditions and perform the duties prescribed in the grant.
Certain franchises are in terms and in their nature exclusive. Others are capable of being exercised by any number to whom