The Gallery of Portraits: with Memoirs. Volume 6 (of 7)Malkin, Arthur Thomas
History
The Gallery of Portraits: with Memoirs. Volume 6 (of 7)
Malkin, Arthur Thomas
Biography
The unprecedentedly-long period during which Lord Mansfield presided in
the King’s Bench is one of considerable importance in the history of
British jurisprudence; indeed, the multiplicity of his decisions during
a period of thirty-four years could not fail materially to affect the
law relating both to commercial and other property, especially in a
country so rapidly increasing in wealth, and in which new cases were
continually arising out of the ever-changing state of society. By a
large body of his admirers, a class including the majority of the
nation, he was regarded with almost unlimited admiration; but several of
his important judgments have since been overruled; and we probably shall
not err in stating it as the general opinion of well-informed persons in
the present day, that, indecent and virulent as is Junius’s attack on
him as a judge, there is a solid foundation for the charge that he was
more prone to enlarge the power of the crown than to protect the liberty
of the subject, and more willingly referred to the Roman law and the law
of nations than to Magna Charta and the Bill of Rights. But the charge
of introducing equitable doctrines into the common law must be received
with much more caution. He may have gone too far in his favourite scheme
of introducing more enlarged and liberal views than had prevailed before
his time; he may have neglected former authorities, and introduced too
great laxity in the interpretation of the law; but, dangerous as such
licence is, lest, in the uncertainty of law, a greater evil be incurred
than by the occasional commission of an essential injustice, yet we must
look with complacency on that alleged tendency to relax the strict
rigour of law in favour of substantial justice, which seems to have
consisted chiefly in a disposition to admit evidence when mere technical
disqualification, and not essential unfitness, was urged against it; and
rather to let right prevail than give the victory to wrong by rigid
adherence to the technicalities of the law. His feelings may be
illustrated by a playful saying of his own to Garrick. “A judge on the
bench is now and then in your whimsical situation between Tragedy and
Comedy; inclination drawing one way, and a long string of precedents the
other.” It is certain that to him we owe all that our mercantile law has
of system, and of consistency with the principles which govern the
practice of other nations. It is no less true that the remedies
generally afforded by our courts of law have become much more
beneficial, since he enlarged and moulded actions originally of an
equitable nature to suit cases to which proceedings in equity are very
ill adapted. Nor is it too much to assert that under him the science of
law assumed the form of a liberal study.
Public-domain text, read in full here on John Shaqi.
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