Page:A biographical dictionary of eminent Scotsmen, vol 6.djvu/291

From Wikisource
Jump to navigation Jump to search
This page needs to be proofread.


memorial which he has left for posterity ; but it is such a memorial as few, if any other judges, have left. The declaration of what the law is, is generally thought sufficient duty for a judge, and he is praised if he does it well, the evils which his train of decisions may have produced to posterity, when their principle was applied to other cases, are not to be attributed to him; he was not prophetic, and could not foresee such events. But lord Mansfield, in more than one branch of law, framed his decisions for the advantage of posterity ; and of the law of marine insurance, which is now a vast system both in England and Scot- land, he may be said to have been the framer. On this subject, the opinion of one of the most ample writers on the English law of marine insurance, will best explain what lord Mansfield accomplished. " Before the time of this venerable judge, the legal proceedings, even on contracts of insurance, were subject to great vexations and oppressions. If the underwriters refused payment, it was usual for the insured to bring a separate action against each of the underwriters on the policy, and to proceed to trial on all. The multiplicity of trials was oppressive both to the insurers and insured; and the insurers, if they had any real point to try, were put to an enormous expense before they could obtain any decision of the question which they wished to agitate. Some underwriters, who thought they had a sound defence, and who were desirous of avoiding unneces- sary cost or delay to themselves or the insured, applied to the court of King's Bench, to stay the proceedings in all the actions but one, undertaking to pay the amount of their subscriptions with costs, if the plaintiff should succeed in the cause which was tried ; and offering to admit, on their part, everything which might bring the true merits of the case before the court and jury. Reason- able as this offer was, the plaintiff, either from perverseness of disposition, or the illiberally or cunning of his advisers, refused his consent to the application. The court did not think themselves warranted to make such a rule without his consent; but Mr Justice Denison intimated, that if the plaintiff persisted, against his own interest, on his right to try all the causes, the court had the power of granting imparlances in all but one, till there was an opportunity of granting that one action. Lord Mansfield then stated the great advantages resulting to each party, by consenting to the application which was made ; and added, that, if the plaintiff consented to such a rule, the defendant should undertake not to file any bill in equity for delay, nor to bring a writ of error, and should produce all books and papers that were material to the point in issue. This rule was afterwards consented to by the plaintiff) and was found so beneficial to all par- ties, that it is now grown into general use, and is called the consolidation rule. Thus, on the one hand, defendants may have questions of real importance tried at a small expense ; and plaintiffs are not delayed in their suits by those arts which have too frequently been resorted to, in order to evade the payment of a just demand. 8 Such is one out of the several judicial measures by which lord Mansfield erected this great system. But it is said that he made the changes in the law, by changing himself from the administrator of the law into the legisla- tor ; that he did not adhere to the letter of the law, but gave it an equitable interpretation, virtually altering it himself, in place of leaving to the legislature the correction of bad laws, a system which, whatever good use he might himself have made of it, was not to be intrusted to a chief justice, and never was so by the law of England. The charge is not without foundation. Junius says to him, in his celebrated letter of 14th November, 1770, " No learned man ever among your own tribe, thinks you qualified to preside in a court of common law. Yet it is confessed that, under Justinian, you might have made an incom- parable pretor." The Roman law was, in all its branches, the excess of equity 8 Park on Insurance Introduction, 12.