, first earl of Mansfield (17051793), judge and politician
, was born on 2 March 1705 at his ancestral home, Scone Abbey, later to be known as Scone Palace, near Perth, the fourth son among the fourteen children (six brothers and eight sisters) of David Murray, fifth Viscount Stormont (d
. 1731), and Marjory (d
. 1746), only child of David Scott of Scotstarvet. Except in the case of his brothers David, later sixth Viscount Stormont (c
.16881748), and , little is known about Murray's numerous siblings. The family environment was strongly Jacobite; Murray's father openly supported James Stuart, the Old Pretender, and was sentenced to a year's imprisonment and a fine of £500 after he refused to appear in Edinburgh to answer suspicions about his participation in the uprising of 1715. After a short period as a member of parliament in London (171115) William's brother James tied his career to the Old Pretender, eventually becoming secretary of the court in exile in France and Italy and earl of Dunbar in the Jacobite peerage. One of James's and William's sisters, Marjorie, was alsowith her husband, enmeshed in the Stuart court.
The Murray siblings who left Scotland evidently corresponded with the family infrequently, if at all; at least, very few letters have been discovered. James wrote while living in France in 1763, I hear my brother has been made Lord Chancellor of England, but as I have not had a letter from home for thirty years, I know not if it be true or not (Tayler, 140). Not a single letter from William to his parents survives at Scone Palace or elsewhere.
After attending Perth grammar school William Murray at the age of fourteen travelled in 1719 by horseback from Scotland to London, never to return, ultimately giving rise to Samuel Johnson's remark, Much can be made of a Scot, if caught young. Following the advice of his brother James, he entered Westminster School, and was in that year elected king's scholar. Initially it seemed that studying law in England would be too costly for family resources, and William reluctantly directed himself towards the church. This restriction was said to be erased by the generous intervention of Thomas Foley, first Baron Foley, whose son Thomas was a friend of Murray's at Westminster School and later at Christ Church.
Murray excelled at Westminster. He developed a lifelong association with several of his fellow king's scholars, including Thomas Clarke (made master of the rolls in 1754), Robert Henley (made lord keeper in 1757 and lord chancellor in 1761), and three others in particular: Andrew Stone, later secretary to Thomas Pelham-Holles, duke of Newcastle; Thomas Newton, afterwards bishop of Bristol; and James Johnson, afterwards bishop of Worcester. Much later, John Scott, the future Lord Chancellor Eldon, shifted his practice from king's bench to chancery because of what he perceived to be a preference in Mansfield for young lawyers who had been bred at Westminster School and Christ Church (Twiss, 1.70).
As Scott related, Murray proceeded to Christ Church, Oxford, where he matriculated on 18 June 1723. In the long vacation of 1725 Murray visited his brother James in Paris, and wrote to his brother-in-law John Hay, Jacobite duke of Inverness and secretary of state to the Pretender, asking pardon for the ambition of a young man and desiring Lord Inverness to make a tender of my duty and loyalty to the Kinga very small present but all I have to offer (Tayler, 230). This episode may have been prompted more by family loyalty than Jacobite convictions, but accusations of Jacobitism haunted Murray's career in later life.
Otherwise, Murray's university career was characterized by a devotion to classical studies expected from the Oxford undergraduates of the period, although he did better than some others at the routine exercises he performed. In 1727 he won the university's prize for a Latin verse composition on the death of George I, earning the enmity of his defeated contemporary William Pitt. Murray's poem was called a very wretched production by Campbell, who observed that the art of grinding Latin verses must have been extremely low at Oxford (Campbell, Chief Justices
In April 1724 Murray was entered at Lincoln's Inn. After graduating BA from Oxford in 1727 he went into residence at Lincoln's Inn, proceeded MA from Christ Church in June 1730, and was called to the bar in November 1730. Murray took his time at Oxford and at Lincoln's Inn seriously, exhibiting two characteristics that served him all his life: a readiness to perform the long hours of drudgery and apprenticeship necessary to develop a thorough grounding in a subject or a skill; and an irrepressible intellectual curiosity. Later, when a newcomer to the judicial bench, he wrote to his fellow judge Sir John Eardley Wilmot about a pending case: While the Company is at cards I ply my Rubbers at this Work not the pleasantest in the World but what must be done, I love to do, & have it over (Oldham, Mansfield Manuscripts
, 1.11). While at Oxford he attended lectures on the Pandects of Justinian, which gave him a permanent taste for that noble system of jurisprudence (Campbell, Chief Justices
, 2.327). He also studied oratory while a student at Lincoln's Inn, practising the art to the point of speaking in front of a mirror while being coached by a friend, the poet Alexander Pope. It is not known how Murray and Pope met, but they remained close until Pope's death in 1744. In the early part of his career Murray seems to have been identified with Pope's literary and tory circle, company that accorded with his family's Jacobitism, but he maintained his friendships with his more whiggish friends from Westminster, and the pragmatic seems always to have dominated the romantic in his character.
The young barrister
After spending the long vacation of 1730 on the continent, William was called to the bar on 23 November and took up chambers at 5 King's Bench Walk in the Inner Temple. His earliest business of consequence appears to have come from Scottish sources. He appeared as junior counsel in a number of Scottish appeals in the House of Lords in 1733 and 1734. The journal of the commissioners for trade and plantations (the Board of Trade) reveals appearances by Murray in the prolonged dispute from 1734 to 1737 between the Penns and Lord Baltimore over the boundaries of Maryland, and in 17345 as counsel for the agent of New Hampshire in a boundary dispute with Massachusetts Bay. He represented the trustees of a Georgia company in 1736 in a dispute with South Carolina over laws regulating the India trade, and in 17378 he acted for a Rhode Island agent in a boundary dispute with Massachusetts Bay. During the 1730s Murray appeared before the bar of the House of Commons and its committees. He spoke on the Quakers' Tithe Bill
in 1735 in a rare display of opposition to religious toleration. Thereafter, Murray flirted with the idea of entering politics, and was offered the whig candidacy for the Oxford University by-election in 1737, but, as he later recalled, the great business that I was then coming into at the Bar of the House of Commons made it imprudent for me to think of coming into Parliament (speech before the cabinet council, 23 Feb 1753, BL, Add. MS 33050). Eclipsing in importance any previous case with which Murray had been involved was the debate over the terms of the retributory bill brought into parliament in April 1737 to punish the city of Edinburgh for failing to prevent the lynching of Captain John Porteous. Porteous had been sentenced to death in Edinburgh after he had ordered the city guard to fire on an unruly crowd at an execution, but had been reprieved by Queen Caroline, acting as regent during the absence of George II in Hanover. Murray acted as counsel for the lord provost of Edinburgh. Ultimately the city was given only nominal punishment, and Murray's role as counsel was widely praised.
In December 1737 Murray served with great skill as junior counsel for William Sloper, accused by Theophilus Cibber of criminal conversation (adultery) with his wife, the actress Susannah Maria Cibber. Murray showed that Theophilus Cibber had arranged his wife's affair; by Murray's own account, business poured in upon me on all sides (Holliday, 36) from then on. Murray may have overemphasized the importance of the case for his career, but nevertheless by 1738 his practice was strongly launched. He does not appear to have had a moment of self-doubt.
On 20 September 1738, at Raby Castle, co. Durham, Murray married Lady Elizabeth
. 1704, d
, daughter of . Elizabeth's grandfather (who died before she was born) was Heneage Finch, first earl of Nottingham, the great seventeenth-century lord chancellor. Elizabeth was an intelligent, sociable woman, and she and Murray shared an evidently happy, if childless, marriage of forty-six years until her death in 1784.
From about the time of his marriage Murray enjoyed an increasing flow of business in the court of chancery, appearing in dozens of cases before Philip Yorke, baron and later first earl of Hardwicke, lord chancellor. He became a strong admirer and friend of Hardwicke, and may have been inspired by him to apply equitable notions in his king's bench decisions.
In addition to his growing chancery practice, Murray's involvement with Scottish appeals, colonial disputes, and the bar of the House of Commons continued into the early 1740s. During this time he was also drawn into the duke of Newcastle's circle. Murray's friend Andrew Stone was Newcastle's secretary; Hardwicke had been a Newcastle confidant from about 1735; and in 1738 Murray and Newcastle had become near neighbours, both residing in Lincoln's Inn Fields. In 1742 Newcastle contrived Sir John Strange's resignation as solicitor-general in order to make room for Murray, who took office on 27 November 1742; two days later Murray was returned to the Commons as MP for Boroughbridge, a seat in Newcastle's gift. The next year his status was recognized when he became a bencher of Lincoln's Inn.
In the House of Commons, Murray quickly became a force of consequence, often clashing with an old rival from Oxford, William Pitt. Murray's style of cool cerebration was likened to Cicero; Pitt's fiery oratory, to Demosthenes. Pitt was judged the superior orator in the Commons; to most observers Murray's manner was more appropriate to the House of Lords. Murray's appointment was favoured by Newcastle's friends, but some in the ministry questioned the preferment of someone with personal ties to so many members of the opposition, including tories such as Sir William Wyndham and Henry St John, Viscount Bolingbroke, as well as the various Jacobite Murrays. Any residual Jacobite loyalty that Murray had was tested when in 1746 and 1747 he and the attorney-general, Sir Dudley Ryder, prosecuted the leaders of the rising of 1745. Campbell observed that It must have been a painful task for Murray to take an active part in these prosecutions, for the prisoners were connected with his family by blood or alliance; but he did his duty with firmness and moderation (Campbell, Chief Justices
, 2.359). Murray was indeed scrupulous to avoid any hint of favouritism or leniency, as is evident from the accounts of the trials in Ryder's diaries.
As solicitor-general Murray was required to develop a close working relationship with Ryder, who had held his post since 1737. The ministry (principally Newcastle as secretary of state, and Hardwicke as lord chancellor) relied on them for services including legal opinions on questions of domestic and international law, decisions about initiating and handling litigation, and the drafting of proposed bills for consideration in parliament. Murray did the initial drafting, submitting each document to Ryder for annotation. One such case arose in 1752 after the King of Prussia … had sought to remodel the law of nations in a way that would have rendered naval superiority in time of war of little avail (Campbell, Chief Justices
, 2.376). A memorial was prepared by the Prussian minister spelling out details of the Prussian position, such as its denial of the validity of all the proceedings in the courts of Admiralty of England for a condemnation of neutral ships or goods by reason of an alleged violation of the duties of neutrality (ibid., 2.347). To this, a masterly answer was returned, one so thorough and forceful that the Prussians submitted. According to his early biographer John Holliday, Murray frequently declared to his friends that it was entirely his own composition, although it bears the signature of two distinguished civilians, and of his colleague in office, as well as his own (Holliday, 424), but Ryder's diary shows Ryder's active participation in the final draft (Oldham, Mansfield Manuscripts
The close of Murray's period as solicitor-general was shadowed by an accusation that could have ended his career. In 1753 the recorder of Newcastle upon Tyne, Christopher Fawcett, sponsored by Henry Liddell, Baron Ravensworth, made public accusations that Murray and two othersMurray's friend Andrew Stone and another classmate from Westminster Schoolhad some twenty years earlier, in Fawcett's presence, toasted the health of the Old Pretender. Not only was Murray a senior law officer, but Stone was sub-governor to the young prince of Wales, afterwards George III. The matter was formally investigated by the cabinet, before whom Murray appeared to deny the accusation. His speech (preserved at BL, Add. MS 33050, fols. 20068) satisfied its hearers of his innocence, but Murray was infuriated by the business. He found the method of investigation taken by the cabinet too much like inquisition, and he talked with great warmth against Lord R. but more against F. whom he called villain (Ryder, diary, 20 February 1753, Oldham, Mansfield Manuscripts
Subsequently, John Russell, fourth duke of Bedford, a former secretary of state then in opposition, but friendly to Murray, moved in the House of Lords that the examination by the cabinet be laid before the house, arguing that the examination had been conducted by an improper court resembling the seventeenth-century Star Chamber, and that the character of the three accused would be better vindicated by a full inquiry by the Lords. The sentiment among the Lords was almost universally opposed to the motion, but in the debate, nearly all of the cabinet members present spoke to explain their interpretation of the evidence that they had heard. Murray stated that the whole House, Strangers as well as members, appeared fully convinced of the injustice and absurdity of the motion as well as of the innocence of the accused, and that the motion justified the persons accused more than anything could have done (Ryder, diary, 23 and 28 March 1753, Oldham, Mansfield Manuscripts
On 2 May 1754 Ryder became chief justice of the court of king's bench, and Murray was elevated to attorney-general. This arrangement lasted for little more than two years, as Ryder died on 25 May 1756. Murray was Ryder's natural successor, both by tradition (as the incumbent attorney-general) and by ability. Newcastle tried unsuccessfully to induce him to remain in the House of Commons, even if for a short time. Murray insisted that the appointment be accompanied by a peerage, eventually overcoming the resistance of George II. On 8 November 1756 he was called to the degree of serjeant-at-law, sworn in as chief justice of the court of king's bench, and created Lord Mansfield, baron of Mansfield. He had no connections with the town, but probably chose the title to emphasize his close relationship with Newcastle; Viscount Mansfield had been a subsidiary title of the Cavendish dukes of Newcastle in the seventeenth century.
Home and property
For the first fifteen years of their married life, William and Elizabeth Murray lived exclusively in London, initially at Lincoln's Inn Fields, later at Bloomsbury Square. In 1754 Murray purchased Kenwood House, a country home on the northern edge of Hampstead Heath, from John Stuart, third earl of Bute. Expanded and improved under the architectural supervision of the Adam brothers, adorned by impeccably landscaped grounds, and supplied by its own dairy, Kenwood became the epitome of genteel country living. There Mansfield could entertain political colleagues, and show his generosity by opening his kitchen and dairy to the local needy. Lady Mansfield wrote to her nephew in May 1757, Kenwood is now in great beauty. Your Uncle is passionately fond of it. We go thither every Saturday and return on Mondays but I live in hopes we shall now soon go thither to fix for the Summer (Oldham, Mansfield Manuscripts
, 1.25). Two of Mansfield's great-nieces, Elizabeth and Anne Murray, took up permanent residence at Kenwood about 1763, as did , a mulatto daughter of his nephew the naval officer . Mansfield doted on all three young ladies.
Of Mansfield's deportment at his Sunday levees, James Boswell wrote, He himself sat with his tye wig, his coat buttoned, his legs pushed much before him, and his heels off the ground, and knocking frequently but not hard against each other, and he talked neatly and with vivacity (Papers of Boswell
, 9.48). Another observer recalled the happy and engaging art, which [Lord Mansfield] possessed, of putting the company present in good humour with themselves: I am convinced they naturally liked him the more for his seeming to like them so well (Cumberland, 2.344).
Throughout his life Mansfield was financially astute. In his late twenties he was entrusted with family money to invest in government securities. His early propensity to become a moneylender is revealed in a promissory note from Andrew Stone among surviving papers at Scone Palace, dated 10 May 1737 and in amount of £45, on which Murray wrote on 15 August 1750, This has not been paid (Oldham, Mansfield Manuscripts
, 1.28). Among many financial accounts that survive at Scone Palace is a summary of Mansfield's assets as of January 1789, revealing a total value of over half a million pounds, the largest component being mortgages. According to the London Chronicle
for 9 July 1783:
The wisdom of Lord Mansfield, and the other best judges, who lay out their money on landed securities, in preference to the funded property of the country, now becomes more and more apparent [in view of] the present melancholy state of the Stocks.
Mansfield's income from investments was additional to the sums he accrued from his offices. His salary as chief justice of the court of king's bench was £4000, but it was more than doubled by income from the office of chief clerk and other offices, all of which generated additional payments according to the caseload. Occasional extra assignments generated further income, for example Mansfield's services as deputy speaker of the House of Lords (for which he received £500 per annum) and as the house's speaker in 1770 and again in 17834, by which he received fees for the introduction of private bills. Mansfield ended his judicial career a fabulously wealthy man. This he accomplished without inheriting wealth, instead building upon and wisely investing the earnings from his successful law practice before going on the bench.
Lord chief justice and political controversy
Murray's political career had been characterized both by caution and a willingness to seize opportunities for his own advancement, qualities noted by Ryder in his diary. He had occasionally been directly consulted by George II on political questions, and these conferences increased after Mansfield became chief justice. Barely six months after taking office, Mansfield wrote to Hardwicke,
I am just come from Kensington, where I was by order to deliver the [exchequer] Seal, & Mr. Fox was there to receive it. Upon my going into the Closet, the King did me the Honour to talk to me of the present melancholy Situation, & bid me tell Him what I thought. I did so very sincerely & made a great Impression. The result was that I have brought the Seal back, & am to speak to the Duke of Newcastle & your Lordship. (11 June 1757, BL, Add. MS 35595)
Mansfield was appointed a privy councillor on 19 November 1756, soon after the formation of the Devonshire administration, and he continued to attend until he distanced himself from government when Pitt, as earl of Chatham, formed a ministry in 1766. He acted twice as chancellor of the exchequer, the custom being that the lord chief justice filled that post when it was otherwise vacant, in 1757 and again in 1767. Later, in 1770 and again in 1783, he acted as speaker of the House of Lords while the great seal was in commission pending the designation of a new lord chancellor. Through most of his thirty active years in the House of Lords, Mansfield was a leading voice in debate, closely attended by his colleagues. Horace Walpole, upon listening to Mansfield's speech in 1758 opposing a proposed bill for expansion of habeas corpus, observed:
He spoke for two hours and a half: his voice and manner, composed of harmonious solemnity, were the least graces of his speech. I … own that I never heard so much argument, so much sense, so much oratory united … Perhaps it was the only speech which, in my time at least, had real effect: that is, convinced many persons. (Walpole, 3.120)
The political issue with which Mansfield was most entwined as lord chief justice was the publication of North Briton
no. 45 by John Wilkes in 1763. The affair thrust Mansfield's attitudes to two points of controversy into focus: the competence of juries to decide the substance of charges of seditious libel, and the validity of general warrants. Mansfield recommended that Wilkes's parliamentary privilege should be no bar to his prosecution for seditious libel, but the chief justice of the common pleas, Charles Pratt, had pronounced otherwise, and it was believed by the attorney-general, Charles Yorke, that Mansfield would want parliament to decide on the question first, which both houses did by the end of November. A second case involved the validity of the general warrant used to seize Wilkes's papers; on 6 December Pratt ruled in the court of common pleas that general warrants were contrary to the constitution. Mansfield appears to have disapproved of the way Pratt handled the case, but in opinions given on 18 June 1765 in the case of Money v. Leach
, Mansfield and his fellow king's bench judges all agreed that general warrants were void (TNA: PRO/TS 11/923/3237). Wilkes absconded to France before he could be tried. Meanwhile the trial of Wilkes in the court of king's bench proceeded on 21 February 1764. The jury found Wilkes guilty of the fact of publication, as directed by Mansfield. Mansfield approved a doctrine shaped early in the eighteenth century by Sir John Holt that gave judges complete control over the matter of what was or was not seditious, leaving to the jury only the basic questions of whether a defendant in fact wrote or published or sold a writing and what any blanks or innuendo in the publication meant. The jury would be instructed to return a guilty verdict if the defendant was responsible for the publication, even if the jury considered it harmless. Mansfield thus retained control of the question of whether North Briton
no. 45 was seditious, and was responsible for sentencing Wilkes to outlawry on 1 November after he repeatedly failed to present himself before the court. Mansfield was thus confirmed in the enmity of radical opinion and of the mob.
Wilkes returned early in 1768, and surrendered himself for trial; Mansfield ruled him free to leave the court as he had not been formally arrested. The reversal of Wilkes's outlawry by the court of king's bench on the basis of a trivial error in the pleadings won Mansfield a temporary popularity and the congratulations of Newcastle for his most able and judicious conduct (Thomas, 248), embarrassing a ministry formally led by Chatham and other political enemies of Newcastle and Mansfield.
During Mansfield's tenure, the most significant challenge to judicial control of seditious libel occurred in 1770 in prosecutions of publishers and sellers of Junius's Letter to the king. In the first trial on 2 June 1770 John Almon was convicted, but one juror, who had raised a question during the trial, filed a post-trial affidavit claiming to have been misled by Mansfield's response. Then when the printer of the Public Advertiser
, Henry Sampson Woodfall, was tried on 13 June 1770 for reprinting the letter, the jury found Woodfall guilty of printing and publishing only, and on 13 July the printer of the London Evening-Post
, John Miller, was acquitted. Both juries thus rejected Mansfield's direction. Junius's letter of 14 November 1770 abused Mansfield as a Scot and a lapsed Jacobite who had corrupted English law by introducing ideas from Roman law and the civil law of other nations. It also accused him of exercising secret influence over the government while refusing to take the public position of minister. Mansfield rejected the advice of the attorney-general, William De Grey, that the government should prosecute the printers of the newspapers who had published Junius's letter of 14 November 1770, and kept his resolve following the further letters of 5 October 1771 and 21 January 1772. As with Wilkes, he did not want to give Junius publicity or to use his position to fight what would be construed as a personal battle. As a result, he was accused of political timidity, but Mansfield always distinguished between his position as a judge and that of a minister. His allegiance was always to the crown. In 1782 he spoke in opposition to a bill restraining revenue officers from voting for members of parliament, describing the measure as tending to the dangerous depression of regal power … in all mixed monarchies, the crown must have its equal share of power (Morning Chronicle
, 4 June 1782). He noted that he was not blind to the popular torrent then running in favour of lessening the influence of the crown, but thought that this was a part of the natural prejudice that ran against the government, and that it must be kept in check.
Junius had accused Mansfield of covertly advising George III, but it is questionable whether he really was as close to the king in the early part of his reign as has been believed. Mansfield was an old ally of Newcastle; his wife was the aunt of Newcastle's political heir Charles Watson-Wentworth, second marquess of Rockingham, and so Mansfield was associated with a faction that the king mistrusted. As a judge, however, he considered himself placed at the king's service. He remained involved in the drafting of parliamentary bills as lord chief justice, and seems to have been largely responsible for the Royal Marriages Act
of 1772, introduced at the desire of George III following the marriages of the king's younger brothers to controversial commoners; according to the London Evening-Post
of 22 February 1772, this bill is the work of Lord Mansfield. It is his suggestion, his contrivance, and in every other respect peculiarly his own. As the issue of the American colonies came to dominate political debate he found that his position aligned him with George III and Lord North. He began to attend meetings of the privy council once more early in North's premiership. Those in the opposition who believed that government was conducted by secret influence imagined Mansfield as an intriguer: Edmund Burke wrote to Rockingham on 5 January 1775 that an investigation into Bute's former secretary and prominent king's friend Charles Jenkinson would be to discover my Lord Bute, and my Lord Mansfield (The Correspondence of Edmund Burke
, ed. T. W. Copeland and others, 10 vols., 195878, 3.90). Burke was mistaken in assuming that Bute and Mansfield were allies, but his interpretation of Mansfield's role in the government was widely accepted among opponents of the ministry. Burke's opinion of Mansfield was close to that expressed by Junius; Horace Walpole also suspected Mansfield's activities. All three contributed towards the establishment of Mansfield's historical reputation as one of an ultra-conservative in politics who encouraged George III to assert the royal prerogative, an interpretation that neglected Mansfield's whig history and dedication to the principles of law over political considerations. Contemporary printmakers depicted him as a co-conspirator with the king against America. Mansfield's conviction that the demands of the colonists were incompatible with the maintenance of the British constitution provided the North ministry and George III with an adviser of great authority who enhanced the inclinations of king and minister against an innovative reinterpretation of the relations between Britain and her colonies. However, his early willingness to speak on the subject in the House of Lords receded, because everything said in Parliament was immediately wafted to America, and converted to the purpose of counteracting the measures to which it related (Lloyd's Evening Post
, 20 March 1776).
Mansfield was rewarded for his service to George III when on 31 October 1776 he was created earl of Mansfield, with a special remainder to Louisa (née
Cathcart), Viscountess Stormont, wife of his nephew ; Mansfield named his nephew's wife as his successor owing to a notion then prevalent that no British peerage granted even in remainder to a Scottish peer would enable such peer to sit in Parliament (GEC, Peerage
, 8.388). He remained sympathetic to North's ministry, although in 1778 and 1779 he supported the proposed reconstruction of the administration in order to accommodate Chatham. His personal dislike of Chatham was overcome by his conviction that only this measure would avert the collapse of government. His withdrawal from privy council meetings from 1779 was interpreted as a sign that the ministry lost his confidence.
As a legislator, Mansfield was especially interested in social issues. He was involved in the regulation of private insane asylums; in 1777 he was reported to be working on a bill to protect young women from seduction. His other legislative initiatives included the preparation of a measure that could be used against fraudulent claimants in insolvency cases in 1781, and in 1786 he convened a meeting of judges at his house in Lincoln's Inn Fields to seek a solution to the vexing repetition of perjury in court proceedings, although no legislation was forthcoming.
In his later years Mansfield, in political philosophy, became suspicious and untrusting, viewing world affairs with a melancholy eye. He believed avidly in the importance of strong, principled leadership, and in a letter to Warren Hastings reflected that the Fate of Empires has often, & generally does, depend upon One Man. We lost the West Indies for want of such a Man & had it not been for you, We should have lost the East (27 Sept 1783, BL, Add. MSS 29160). That year, he voted with the FoxNorth coalition on the India Bill
, but changed sides following the king's message indicating his opposition to the measure. Nathaniel Wraxall thought that he supported the opposition to the ministry of William Pitt the younger in 1784, although age probably curtailed his political activity from then on.
Mansfield on the bench
Vigorously disciplined in his own work habits, Mansfield hated circuitousness and inefficiency in the law courts. He read newspapers during prolix legal arguments to discourage long-winded barristers; he kept court in session for long hours, even on holidays, to get through heavy caseloads, and he cut through procedural red tape whenever he could. He always ensured that the court sat until even the most junior counsel had been heard. He gained a reputation in the nineteenth century for having sought to dominate his fellow judges, but the evidence suggests that he in fact placed a great reliance on the skills of his colleagues, particularly in the first few years of his period as chief justice. For the most part, Mansfield's relationships with his junior judges, and with barristers appearing before him, were cordial and respectful; decisions reached by the court reflected a remarkable degree of unanimity. He also strove, though a common-law judge, to reach equitable solutions in cases that he tried, as long as he could do so without upsetting established legal principles or without offence to a higher value. This inclination anticipated the eventual merger of law and equity, but it provoked outcries from those like Junius and Charles Pratt who felt that Mansfield was undermining the basis of English common law by introducing ideas from other legal traditions.
Yet in the realm of commerce Mansfield understood the need for stability and predictability. He stated in a 1779 insurance case (Milles v. Fletcher
) that The great object in every branch of the law, but especially in mercantile law, is certainty. He gained a reputation, in the words of his protégé Francis Buller, as the founder of the commercial law of this country (Lickbarrow v. Mason
), which was justified especially in cases dealing with insurance and negotiable instruments. The sheer volume of marine insurance litigation that aroseaccelerating as the years went by because of Mansfield's evident aptitude for and interest in the subjectfacilitated the articulation of principles of indemnity and the perception of relationships between insurance rules that had never before been accomplished. This, in turn, encouraged the development of rules for life and fire insurance. Mansfield also modernized the law of negotiable instruments to accommodate an aggressive mercantile economy, at times adapting and incorporating into the common law principles that had been long established on the continent.
Mansfield is sometimes said to have been an early contributor to women's rights, owing to his decisions dealing with contracts between merchants and married women. Mansfield's true objective was to protect the merchants from women who presented themselves as feme sole, later taking shelter behind their married state. In these cases, nevertheless, Mansfield demonstrated his appreciation of the adaptability of the common law to change. He remarked on the case of Ringstead v. Lady Lanesborough
In process of Time, through the Succession of Ages, New Manners arise, New Modes of Acting diversify the Subject & beget Cases within the letter but not within the Reason of the general Rule. Inconvenience, Injustice and many Absurditys must follow if the letter of a general Rule was to govern Cases not within the Reason, & therefore Exceptions are implied from Time to Time, as the Cases fit to be excepted arise, and the Exceptions form a System of Law together with the Rule.(Scone Palace MSS, 1st ser., box 68; Oldham, Mansfield Manuscripts, 1.199)
In a letter to the Morning Post
of 10 February 1778, an admirer observed that Mansfield knows that law originates in common sense and his audiences are surprised when they hear that all its intricacies … when fairly developed, coincide entirely with it. Mansfield was not always successful, however, in keeping common sense and legal principles aligned. Two famous attempts that failed were in the law of contracts and real property. In the 1765 case Pillans and Rose v. Van Mierop
he declared that the ancient notion about the want of consideration was for the sake of evidence only, so that proof of consideration was not necessary if the contractual transaction could be shown by other evidentiary means. This notion was overruled by the House of Lords in Rann v. Hughes
(1778). In 1770, in Perrin v. Blake
, Mansfield tried to implement what he viewed as the clear intent of a testator, disregarding a venerable rule that had been established in Shelley's Case
in the reign of Elizabeth and followed faithfully since. His decision was reversed by the exchequer chamber, where the prime mover was Justice William Blackstone, a repulse so decisive that it involved retreat upon the whole front of real property (Fifoot, 181).
Mansfield was a committed free trader, even to the point of endorsing trading with the enemy. He thought that statutory restrictions on market practices such as forestalling and engrossing, dating from the reign of Edward VI, were regressive, and he welcomed their repeal in 1772. He opposed combinations of labour to raise wages because, in addition to disrupting the public peace, they threatened to raise wages above what the trade would bear, thus driving capital away (Daniels, 51). In intellectual property cases, Mansfield encouraged juries to give strong common-law protection to trademark ideas. He upheld authors' common-law property rights in their writings in 1769 in the landmark copyright decision in Millar v. Taylor
(overturned by the House of Lords in 1774 in Donaldson v. Beckett
). Mansfield believed that patent rights were advantageous to the economy, but he saw and met the need to adapt patent law to more sophisticated technological times, something that he accomplished by subtle changes in legal principles and by careful jury guidance on damage awards.
Despite his dramatic support for authors' rights in Millar v. Taylor
, Mansfield's conduct over the prosecutions of Wilkes and the printers of Junius showed that he was not a friend to freedom of the press. The controversy culminated during his tenure as chief justice in R. v. Shipley
, tried at Shrewsbury in 1784 before Francis Buller, in which a harmless dialogue written by Sir William Jones and published by his brother-in-law William Davies Shipley, dean of St Asaph, was held libellous, though on a motion in arrest of judgment Shipley was released on a technicality. Mansfield did not create the doctrine that withheld from the jury the question whether a publication was seditious, but perhaps his loyalty to the crown led him to cling tenaciously to an awkward procedure that was out of joint with the times. Shortly before his death the procedure was overturned by Fox's Libel Act
Where the interests of the government or the crown, or the needs of the mercantile economy, were not central, Mansfield was a guardian against injustice. He is famous for the Somerset case of 1772, in which a former slave was brought before the court by a writ of habeas corpus obtained by the abolitionist Granville Sharp. James Somerset had been clapped in irons by his former master and was being shipped out to be sold in Jamaica. Mansfield believed that freeing the slaves would have a harshly negative impact on the British economy, and so was reluctant to issue a formal decision and tried hard to get the parties to settle, which the parties had resolved not to do. When the decision issued, the actual holding went only so far as to say that a master could not by force dispatch a slave out of the country. Nevertheless it proved to be a forceful contribution to the abolitionist cause, and Mansfield is justifiably credited for his declaration that Slavery is of such a nature as not to be introduced by inference from principles either natural or political, that it must be from positive law, and that it is so odious that it must be construed strictly (Oldham, Mansfield Manuscripts
Mansfield was a strong believer in religious toleration; as he once stated, My desire to disturb no man for conscience' sake is pretty well known, and, I hope, will be had in remembrance (Campbell, Chief Justices
, 2.529). One of his important rulings in this regard, in 1767, was that the City of London's practice of raising money by electing dissenters to the position of sheriff, and then fining them £400 if they refused to serve, violated the Corporation and Toleration Acts
. His beliefs caused him to interpret statutes restricting religious freedom so narrowly that he virtually invited juries to render the statutes impotent, an invitation that the jurors cheerfully accepted. An unfortunate result of this behaviour was that Mansfield became a target of the anti-Catholic mob that pillaged London in the Gordon riots of 1780. Mansfield's house in Bloomsbury Square, including his splendid library, was sacked and burnt, and he and Lady Mansfield barely escaped with their lives.
Much of Mansfield's judicial energy throughout his thirty active years on the bench was devoted to the conduct of jury trials. Given the choice, he might have dispensed with jurieshe cautioned against extending the practice to Scotlandbut, notwithstanding, his relationship with his juries was customarily cordial and efficacious. He told James Boswell that juries always took his direction, except in political causes where they do not at all keep themselves to right and wrong (Papers of Boswell
, 6.109). Extraordinarily effective was Mansfield's teamwork with special juries. He did not invent either the special jury or its frequent composition, especially in London, of merchants, but he perceived how the special jury might be used instrumentally to establish legal principles by identifying mercantile practices and folding those practices into the common law.
Accused occasionally of political timidity, criticized at times for his tenacious allegiance to the crown and his resistance to freedom of the press, Mansfield nevertheless gained the reputation by the 1780s of having become one of England's greatest judges. Even John Wilkes became an admirer, remarking (perhaps unfairly) that to hear the puisne judges deliver their judgments after their chief had concluded, was like a draught of hog's-wash after a bottle of champagne (Polson, 1.318). Throughout his life Mansfield's habits were temperate and his physical health unusually good, save for an occasional bout with rheumatism. On 11 December 1785, aged eighty, he wrote to the duke of Rutland, I go down hill with a gentle decay, and I thank God, without gout or stone (Rutland MSS
, 3.268). On 1 November the London Chronicle
had reported that Lord Mansfield has been obliged to give up the pleasure of riding on horseback owing to a weakness in his wrists. He had survived his wife, who died at Kenwood on 10 April 1784.
Mansfield continued to perform the duties of chief justice until spring 1786, when it became physically difficult for him to exercise the functions of the role. He clung to office despite incapacity, supposedly in order to overcome the resistance of George III to Mansfield's preference that his protégé and fellow judge Francis Buller become his successor as chief justice of king's bench. He did, however, tender a letter of resignation to Lord Chancellor Thurlow in November 1786 which, though expressing the hope that Buller would be designated, was not conditional on that event (Oldham, Mansfield Manuscripts
, 1.43). Thurlow evidently did not communicate Mansfield's resignation request to the king, and nearly two more years passed until the resignation took place and Lloyd Kenyon was named chief justice. After his resignation, Mansfield lived in retirement at Kenwood. He continued to improve the grounds and entertained visitors, including parties of barristers. On 1 August 1792 the prohibition against Scottish peers sitting in the House of Lords by right of their British peerages having been lifted in 1782, he was given a second earldom of Mansfield, located in Middlesex to distinguish it from the earlier (Nottinghamshire) earldom, with remainder to his nephew Viscount Stormont. He died at Kenwood House on 20 March 1793, and was buried in the north cross, Westminster Abbey, on 28 March.
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