Note 118 — Chapter VII

In a letter on these proceedings written shortly before the judgment reversing the outlawry, Walpole says, “In short, my dear sir, I am trying to explain what I really do not understand.” (To Sir Horace Mann, vol. i. p. 392.) That he was not better informed at the date of these Memoirs, is proved by the statement in the text. It was, however, no disgrace to be ignorant of the absurd technicalities by which Lord Mansfield’s very able judgment is defaced; nor should they attach any stain to the memory of a judge who had to expound the law and not to make it. Lord Mansfield’s love of the prerogative did not in this instance lead him into the slightest injustice. Following the order which the form of the proceedings naturally suggested, he commenced with an elaborate and lucid examination of all the arguments which the ingenuity of the defendant’s counsel, arguing from the reversal of the outlawry, had most ably urged; and after carefully reviewing and combating each seriatim, he disposes of them in these words: “These are the errors which have been objected, and this the manner and form in which they are assigned. For the reasons I have given, I cannot allow them.” After a spirited vindication of his character, and a bold declaration of the utter indifference in which he held all the menaces by which he had been publicly and privately assailed, he proceeds to advert to a technical error in the “Writ of Exigent,” which by a series of precedents and cases ranging from the 7th of James the First to the 18th of Charles the Second (a period of sixty years), he shows to be fatal to the writ, and on that ground decides that the outlawry could not stand, adding at the conclusion of his judgment, “I beg to be understood that I ground my opinion singly upon the authority of the cases adjudged, which as they are on the favourable side, in a criminal case highly penal, I think ought not to be departed from.”—Burrow’s Reports, vol. iv. p. 2561.

The error upon which the reversal proceeded was, that after the words “at the County Court” the writ altogether omitted to state “of the County of Middlesex,” a ground obviously different from that which Walpole here suggests. It is observable, also, that the discovery of this error had not, as Walpole states, been made by Serjeant Glynn “two months before in his pleading;” it is probable, however, that Walpole may have confounded this with another error relied on by the Serjeant, but overruled by the court,—namely, that the averment “Brook Street near Holborn in the County of Middlesex” was not a sufficient averment that Brook Street was in Middlesex.

A clear account of these proceedings is given in the Life of Lord Mansfield (No. XI. of the Law Magazine), in an able and yet not servile defence by that eminent lawyer, who, with all his defects of character, will always be regarded as one of the brightest ornaments of British jurisprudence. It was written by Mr. Plunket, the author of a history of the Roman law, who has since died, a Puisne Judge of St. Lucia.—E.