William Murray, First Earl of Mansfield

English jurist

• Born: March 2, 1705
• Birthplace: Scone, Perthshire, Scotland
• Died: March 20, 1793
• Place of death: London, England

As chief justice of the Court of King’s Bench, Mansfield made many reforms in procedure and substantive law, virtually initiated the creation of a code of commercial law, and developed an attitude toward judgment consistent with a changing world.

Early Life

Although William Murray, first earl of Mansfield, modestly ascribed his success to his having been born the son of a nobleman and having the funds to support himself well, he was actually the fourth son of David, the Fifth Viscount Stormont, an impoverished and minor Scottish noble who could give his son little aid in attaining the heights that he eventually achieved, and Margaret, the only daughter of David Scott of Scotsarvet.

Murray received his early education at Perth Grammar School. Leaving Scotland for London in 1718, he studied at Westminster School and Christ Church College, Oxford, and was called to the English bar at Lincoln’s Inn in 1730. From the first, he distinguished himself as a fine orator, but, although he won considerable acclaim in several cases, he did not obtain the financial success that marked advocates of the law. Not until his speech before the jury as a junior counsel to Sergeant of the Law Eyre in Cibber v. Sloper (1738), in which he appeared for the defendant, did Murray began to see financial success. Later in life he remarked that as a result of Cibber v. Sloper, “Henceforth business poured in upon me from all quarters, and from a few hundred pounds a year, I fortunately found myself in the receipt of thousands.” With such financial success assured, he was married to the Lady Elizabeth Finch, daughter of the earl of Winchelsea, with whom, although there were no children, he had a long and happy marriage.

This marriage aided him in embarking into the field of politics as well, without which alliance it would have been difficult for an attorney, no matter how fitted, to advance in the judiciary. On the fall of Robert Walpole from the prime ministry in 1742, the earl of Winchelsea became the first lord of the Admiralty, and through his influence Murray not only gained the friendship of the influential duke of Newcastle but also entered Parliament as a member of the House of Commons from Boroughbridge, while at the same time he became solicitor general on November 27, 1742, a post he retained until 1754, when he became attorney general. During those years as solicitor general, he was not only the major law officer of the Crown but also, as a result of his natural abilities, the leader of the House of Commons.

John C. Campbell, writing in the early nineteenth century, in his Lives of the Chief Justices of England (1857), declared the years 1742 to 1754 to be “the longest and most brilliant Solicitor Generalship in the annals of Westminster Hall,” a solicitorship marked not only by the brilliance of Murray’s speeches but also by a morality and honesty that raised the position far above the venality and corruption of many other offices in the government. For example, although Murray was a Scotsman whose family strongly supported the ambitions of the Stuarts to return to the throne of England, he had cast his allegiance to the Hanover kings. Although it must have been painful for Murray to take an active part in the 1746-1747 prosecutions of the rebels—a number of whom included his own cousins—after their failure in the Battle of Culloden, he did so with firmness and moderation, so much so that he was lauded after trial by several of the rebel chieftains themselves, such as Lord Balmerino and Lord Lovat. Although he was noteworthy in his zeal for justice based on law, he was also equally known for the moderation he exhibited in applying the law with regard to the frailties of human nature and with a definitive kindliness that stood in contrast to the reputation for harshness attributed to his great predecessor, Sir Edward Coke.

While solicitor general, he drafted in 1752 an answer to Frederick the Great of Prussia that was termed a response without equal by Montesquieu and has been accepted by some writers as the foundation of the modern law of neutrality.

In the political arena, Murray was not as successful, for in the House of Commons he was forced to endure the fierce opposition of the finest orator in England, the great Commoner, William Pitt the Elder. Murray was simply not equipped by nature for political life. In the words of one of his biographers, “He lacked the eagerness in attack, the resilience in defeat, the relish for a shrewd blow, offered or received, which are essential factors in a final Parliamentary success.” On the death of Henry Pelham in 1754, Murray could have become prime minister, but he refused this position, and the position as speaker of the House of Commons as well.

Therefore, when Sir Dudley Ryder, attorney general, became chief justice of the Court of King’s Bench, the highest court in the land with the exception of the Court of Exchequer Chamber and the House of Lords itself, Murray was appointed attorney general in his place. Two years later, when Ryder died, Murray became chief justice of the Court of King’s Bench, although still retaining the very difficult duty of being government leader in the House of Commons under the prime ministry of the duke of Newcastle. On May 25, 1756, he was sworn in as chief justice of the Court of King’s Bench, was created Baron Mansfield of Mansfield in the County of Nottingham, and presided for the first time in King’s Bench on November 11, 1756. On October 31, 1776, he was elevated to the rank of earl of Mansfield.

Life’s Work

As a judge, Mansfield not only had attained his life’s ambition but also was able to satisfy his particular type of temperament, which found little pleasure in the management of men that politics required, but which thrived on the quiet research and scholarship into the history and function of law that the judiciary provided. Although Mansfield held the post of first lord of the Admiralty from April to June of 1757, served as a cabinet member from 1757 to 1765, and even after leaving the cabinet addressed the House of Lords on certain occasions (where, for example, he claimed the right of Parliament to tax the American colonies), his efforts were more and more directed toward the judiciary. Jean Baptiste Van Loo’s portrait of him at the age of twenty-eight shows him to have been of ruddy complexion, with brown eyes, a high forehead, and a rather aquiline nose. The portrait by David Martin in Christ Church showed him in later years to have a touch of humor about a sensitive mouth. He is reported to have been slightly under middle height.

Mansfield was continually concerned with improvement of procedure. For example, he shortened the time for the hearing of trials by limiting the number of motions that a counsel could make at any one time prior to the trial, restricted repeated rehearings of questions of law that formerly received as many as four to five rehearings, allowed less time for making decisions, eliminated the mass of redundant paperwork that delayed the hearing of cases, passed a general order that even with the consent of the parties no cases could be postponed without the permission of the court (which permission was granted only sparingly), insisted that reasons be given by the court for its decisions, restricted the speech-making of counsel on each side to the jury, and eliminated much of the irregularity prevailing in the examination and cross-examination of witnesses. He also fought, with limited success, for the unification of equity (granting of orders by the court) and common law (granting of money damages) in the same courts.

Yet it was in the principles of the law that Mansfield gained his fame as one of the major chief justices in the history of the realm. In the Somersett case (1771), he established the doctrine that the air of England is too pure to be breathed by a slave and freed James Somersett, a black man who had been brought to England by his master from Jamaica, from being transported back to the New World as a slave, stating, “Every man who comes into England is entitled to the protection of English law, whatever oppression he may heretofore have suffered, and whatever may be the colour of his skin. . . .” Although, contrary to what some persons have supposed, this decision did not free the slaves in the British Empire, it helped to pave the way for their emancipation in 1834.

In Leach v. Three King’s Messengers (1765), Mansfield and the other three judges of the court declared general warrants to be illegal, declaring that “no degree of antiquity could give sanction of an usage bad in itself,” a doctrine that, whether so intended by Mansfield, gave support to the American colonies in their struggle against the so-called fishing expeditions that general warrants provided the king’s officers in America.

He worked hard for religious toleration, as demonstrated by his acquittal in Rex v. Webb (1768) of a defendant who celebrated Mass as a Roman Catholic priest, his use of the mandamus to protect the rights of religious minorities, and his argument before the House of Lords in Chamberlain of London v. Allen Evans (1767) that “it is now no crime for a man to say he is a dissenter; nor is it any crime for him not to take the sacrament according to the rites of the Church of England; nay, the crime is, if he does it contrary to the dictates of his conscience.” These views on religious toleration, contrary to the tenor of the times, led to the “No Popery” (or Gordon) Riots of 1780, allegedly incited by George, Lord Gordon, which resulted in the sacking of Mansfield’s home in Bloomsbury Square and the burning of his library. Yet Mansfield not only refused to accept any compensation from the government but also conducted the trial of Rex v. Gordon (1781) with such fairness that Gordon was acquitted of the charges brought against him.

With regard to the law of seditious libel, in the case of Rex v. Almon (1770), he declared that it was the province of the judge alone to determine the criminality of a libel, leaving to the jury the determination of the questions whether the defendant printed or published, or both, the writing charged with being libelous, then decided himself that the publication and sale of the writing constituted seditious libel. Naturally, as a result of this doctrine, he was accused not only of trying to subvert the jury system in England but also of weakening the freedom of the press.

Mansfield eliminated in Bright v. Eynon (1757) the stigma of attaint that levied punishment on the children and issue of guilty persons in treason cases, stated the now generally accepted rule in Rex v. Delavel (1763) that conduct contrary to public morals can constitute a criminal offense, and promulgated rules upon marine insurance, bills of exchange, merchant shipping, inheritance (such as the famous case of Perrin v. Blake in 1770, which divided the legal profession into opposing factions for many years and was later reversed), the land law, and the law of commerce that drove the common law, however reluctantly, into modern times. Indeed, Mansfield found the commercial law so weak that he developed sufficient law on the subject to be called the “Father of English commercial law.” Prior to Mansfield’s work, no treatises had been published on the subjects of the purchase and sale of goods, promissory notes, the negotiability of bonds, consideration, and quasi-contract, and few cases were to be found giving light to their handling.

When he was done, the English common law had a core of scholarship upon which to build its present-day codes both in Great Britain and in the United States. With regard to the law of property, the following centuries after Mansfield found the courts agreeing with his efforts to reform the medieval concept of reality, and the introduction of simplicity into the act of conveyancing property from seller to buyer. To do this, despite considerable adverse criticism, he drew upon his great fund of knowledge of foreign law and usage. In the matter of his views on consideration, however, he was defeated, so that the commercial law either then or now does not seem to have agreed with his doctrines on that subject.

In line with his refusal to side with the American colonies in their efforts to free themselves from taxation by the British parliament, as presented in his February 3, 1766, speech before the House of Lords (“Proceed, then, my Lords, with spirit and firmness”), he gave a considerable amount of his time to colonial law within the empire. In Campbell v. Hall, he laid down six propositions by which Great Britain governed its colonies during the century after him, stating that,

• 1. A country conquered by British arms becomes subject to the Parliament of Great Britain;
• 2. The subjects of that conquered territory become subjects of the British king;
• 3. The articles of capitulation upon which that territory surrendered are inviolable according to their true intent and meaning;
• 4. Any person who chooses to live in that territory is bound by the law of that territory, and whether English or not, has no privilege distinct from the original natives;
• 5. The laws of a conquered territory continue in force until altered by the British parliament;
• 6. No changes in the law, however, can be made contrary to fundamental principles governing the rights of all Englishmen.

He was also responsible for the doctrine that a British subject is under the protection of the English constitution in any place where the British flag is unfurled.

Although for thirty years Mansfield was energetic in his duties, the death of his wife on April 10, 1784, after forty-six years of happy marriage, left him deeply saddened, and in the summer of 1786, his health began to fail. He had hoped that his colleague on the King’s Bench, Justice Francis Buller, would replace him, but such was not to be the case. When he resigned on June 4, 1788, his replacement was Sir Lloyd Kenyon, who was his antithesis both in knowledge and in approach to the law.

Retiring to his home Caen Wood, Mansfield died in London on March 20, 1793, in his eighty-ninth year, leaving a vast fortune for those times, the interest alone on the mortgages he held amounting to œ26,000 a year.

Significance

Apart from his reforms in procedure and his reforms and creativity in the principles of the English law, the first earl of Mansfield infused into the judiciary a modern attitude toward the judgment of cases. Although he viewed the law as a science demanding deep scholarship on the part of the judge, he departed from the view that the law was merely an intellectual exercise separate from humankind. Just as Mansfield believed that mercantile disputes were to be determined “upon natural justice and not upon the niceties of law,” so also he believed that the law, unlike a mathematical equation, had to be varied in accordance with the circumstances of each case and the demands of the times. Custom and tradition could only go so far, and when it worked an injustice, had to be discarded or amended. As C. H. S. Fifoot states in his biography of Mansfield, “The whole temper of Lord Mansfield’s mind was modern. He renounced the scholasticism which had infected Coke and the virulence which had impaired the judgment of Holt, and he set a fresh standard of judicial equanimity.” It was Mansfield’s good fortune to possess a command not only of the past but also of the present, in an attempt to set the stage for a future modern commercial age. The law of England had arisen out of a feudal society based on the ownership of land, but the new world was to be one of factory workers who owned no land, or businessmen who traded largely in personality, so that common sense in the light of changing times had to apply.

The very factors that made him uncomfortable as a politician, such as the need in politics to bow to forces that turned him against his own conscience, were factors that assisted him as a judge. He was attacked by the anonymous author of the so-called Junius Letters that appeared sporadically between November 21, 1768, and the beginning of the year 1772 in attacks upon the government. Several of these letters were directed especially against Mansfield, for his use of non-English sources for his innovations, his seeming subversion of trial by jury, his apparent arbitrariness, and apparent attempts to extinguish the liberty of the press. Yet history has not substantiated these accusations.

His actions in the John Wilkes case demonstrated Mansfield’s efforts at fairness with regard to charges that he opposed liberty of the press. In 1764, two informations (government accusations) for seditious libel were filed against John Wilkes. Wilkes fled to France, allowing judgment by default against him, in which he was outlawed. Four years later, Wilkes returned demanding vindication. It would have been easy for Mansfield to rule in favor of the government, but, finding a flaw in the original proceedings that had escaped the eye of Wilkes himself, Mansfield reversed the judgment of outlawry.

In the entire period of thirty-two years in which Mansfield served as chief justice of the Court of King’s Bench, a dissenting opinion was recorded to his judgments not more than twenty times, and he was reversed only six times. If he is to be criticized adversely, it must be more for his aloofness, his lack of emotion (particularly as seen in the prosecution of his relatives in the 1745 Scottish uprising or his failure ever to return to his native Scotland), and his tendency in political matters in Parliament, as one biographer has said, to be prudent perhaps to the point of timidity.

Bibliography

Campbell, John. The Lives of the Chief Justices of England from the Norman Conquest till the Death of Lord Mansfield. 2 vols. London: John Murray, 1849. Volume 2 discusses the life of Mansfield in a rather admiring way, so that the entire presentation is something of a eulogy. Yet some historians have criticized the work for its errors and misstatements.

Fifoot, C. H. S. Lord Mansfield. Oxford, England: Clarendon Press, 1936. This is a very usable biography of Mansfield, beginning with a relatively brief biographical sketch and continuing with a discussion of Mansfield’s cases organized by legal topics. The work ends with an epilogue that attempts to sum up Mansfield’s work.

Heward, Edmund. Lord Mansfield. Chichester, England: Barry Rose, 1979. Discusses Mansfield’s life and achievements chronologically rather than topically. Although it does not contain any more material than the Fifoot biography, it is considerably more readable for the general reader and is particularly valuable for its bibliography of primary and secondary sources.

Oldham, James. English Common Law in the Age of Mansfield. Chapel Hill: University of North Carolina Press, 2004. An abridgment of Oldham’s two-volume 1992 work. Oldham summarizes the fundamental principles of English law in the eighteenth century and describes the operations of the nation’s common law courts.

‗‗‗‗‗‗‗. The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century. 2 vols. Chapel Hill: University of North Carolina Press, 1992. Oldham uses Mansfield’s voluminous trial notes and other previously unexamined documents to reappraise Mansfield’s judicial career and his influence in shaping the modern Anglo-American legal system.