HOME

TheInfoList



OR:

William Murray, 1st Earl of Mansfield, PC, SL (2 March 170520 March 1793) was a British
barrister A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and givin ...
, politician and judge noted for his reform of
English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, b ...
. Born to Scottish nobility, he was educated in
Perth, Scotland Perth (Scottish English, locally: ; gd, Peairt ) is a city in central Scotland, on the banks of the River Tay. It is the administrative centre of Perth and Kinross council area and the historic county town of Perthshire. It had a population o ...
, before moving to London at the age of 13 to take up a place at
Westminster School (God Gives the Increase) , established = Earliest records date from the 14th century, refounded in 1560 , type = Public school Independent day and boarding school , religion = Church of England , head_label = Hea ...
. He was accepted into
Christ Church, Oxford Christ Church ( la, Ædes Christi, the temple or house, '' ædēs'', of Christ, and thus sometimes known as "The House") is a constituent college of the University of Oxford in England. Founded in 1546 by King Henry VIII, the college is uniq ...
, in May 1723, and graduated four years later. Returning to London from Oxford, he was
called to the Bar The call to the bar is a legal term of art in most common law jurisdictions where persons must be qualified to be allowed to argue in court on behalf of another party and are then said to have been "called to the bar" or to have received "call to ...
by
Lincoln's Inn The Honourable Society of Lincoln's Inn is one of the four Inns of Court in London to which barristers of England and Wales belong and where they are called to the Bar. (The other three are Middle Temple, Inner Temple and Gray's Inn.) Lincol ...
on 23 November 1730, and quickly gained a reputation as an excellent barrister. He became involved in politics in 1742, beginning with his election as a
Member of Parliament A member of parliament (MP) is the representative in parliament of the people who live in their electoral district. In many countries with bicameral parliaments, this term refers only to members of the lower house since upper house members o ...
for
Boroughbridge Boroughbridge () is a town and civil parish in the Harrogate district of North Yorkshire, England. Historically part of the West Riding of Yorkshire, it is north-west of the county town of York. Until a bypass was built the town lay on t ...
, now in
North Yorkshire North Yorkshire is the largest ceremonial county (lieutenancy area) in England, covering an area of . Around 40% of the county is covered by national parks, including most of the Yorkshire Dales and the North York Moors. It is one of four co ...
, and appointment as Solicitor General. In the absence of a strong
Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...
, he became the main spokesman for the government in the
House of Commons The House of Commons is the name for the elected lower house of the bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of parliament. T ...
, and was noted for his "great powers of eloquence" and described as "beyond comparison the best speaker" in the House of Commons. With the promotion of Sir Dudley Ryder to Lord Chief Justice in 1754, he became Attorney General, and when Ryder unexpectedly died several months later, he took his place as Chief Justice. As the most powerful British jurist of the century, Mansfield's decisions reflected the
Age of Enlightenment The Age of Enlightenment or the Enlightenment; german: Aufklärung, "Enlightenment"; it, L'Illuminismo, "Enlightenment"; pl, Oświecenie, "Enlightenment"; pt, Iluminismo, "Enlightenment"; es, La Ilustración, "Enlightenment" was an intel ...
and moved the country onto the path to abolishing slavery. He advanced commercial law in ways that helped establish the nation as world leader in industry, finance and trade. He modernised both
English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, b ...
and the English courts system; he rationalized the system for submitting motions and reformed the way judgments were delivered to reduce expense for the parties. For his work in ''
Carter v Boehm ''Carter v Boehm'' (1766) 3 Burr 1905 is a landmark English contract law case, in which Lord Mansfield established the duty of utmost good faith or '' uberrimae fidei'' in insurance contracts. Facts Carter was the Governor of Fort Marlborough (n ...
'' and '' Pillans v Van Mierop'', he has been called the founder of English commercial law. He is perhaps now best known for his judgment in Somersett's Case (1772), where he held that
slavery Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to perf ...
had no basis in
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
and had never been established by
positive law Positive laws ( la, links=no, ius positum) are human-made laws that oblige or specify an action. Positive law also describes the establishment of specific rights for an individual or group. Etymologically, the name derives from the verb ''to posit ...
(legislation) in England, and therefore was not binding in law; this judgement did not, however, outlaw the slave trade. However, historians note that Mansfield's ruling in the Somersett case only made it illegal to transport a slave out of England against his will, and did not comment on the institution of slavery itself.


Early life and education

Murray was born on 2 March 1705, at
Scone Palace Scone Palace is a Category A-listed historic house near the village of Scone and the city of Perth, Scotland. Built in red sandstone with a castellated roof, it is an example of the Gothic Revival style in Scotland. Scone was originally the ...
in
Perthshire Perthshire ( locally: ; gd, Siorrachd Pheairt), officially the County of Perth, is a historic county and registration county in central Scotland. Geographically it extends from Strathmore in the east, to the Pass of Drumochter in the nort ...
,
Scotland Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to ...
, the fourth son of the 5th Viscount of Stormont and his wife, Margaret,
née A birth name is the name of a person given upon birth. The term may be applied to the surname, the given name, or the entire name. Where births are required to be officially registered, the entire name entered onto a birth certificate or birth re ...
Scott, and one of eleven children.Shaw (1926) p. 2 Both his parents were strong supporters of the Jacobite cause,Heward (1979) p. 2Plunkett (1956) p. 248 and his older brother James followed " The Old Pretender" into exile.Fifoot (1936) p. 27 The Jacobite sympathies of Murray's family were glossed over by contemporaries, who claimed that he had been educated at
Lichfield Grammar School Lichfield () is a cathedral city and civil parish in Staffordshire, England. Lichfield is situated roughly south-east of the county town of Stafford, south-east of Rugeley, north-east of Walsall, north-west of Tamworth and south-wes ...
with many other members of the English judiciary. This was incorrect, as Murray was educated at Perth Grammar School, where he was taught
Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through ...
, English grammar, and essay writing skills. He later said that this gave him a great advantage at university, as those students educated in England had been taught Greek and Latin, but not how to write properly in English.Heward (1979) p. 3 While at Perth Grammar School, it became apparent that Murray was particularly intelligent, and in 1718, his father and older brother James decided to send him to
Westminster School (God Gives the Increase) , established = Earliest records date from the 14th century, refounded in 1560 , type = Public school Independent day and boarding school , religion = Church of England , head_label = Hea ...
, as James knew the Dean,
Francis Atterbury Francis Atterbury (6 March 1663 – 22 February 1732) was an English man of letters, politician and bishop. A High Church Tory and Jacobite, he gained patronage under Queen Anne, but was mistrusted by the Hanoverian Whig ministries, and ba ...
. The distance from Perth to London was around , and the journey took Murray 54 days.Heward (1979) p. 4 Murray flourished at Westminster and was made a King's Scholar on 21 May 1719. After an examination in May 1723, Murray was accepted into
Christ Church, Oxford Christ Church ( la, Ædes Christi, the temple or house, '' ædēs'', of Christ, and thus sometimes known as "The House") is a constituent college of the University of Oxford in England. Founded in 1546 by King Henry VIII, the college is uniq ...
, having scored higher in the examination than any other King's Scholar that year.Heward (1979) p. 7 He was admitted as a
commoner A commoner, also known as the ''common man'', ''commoners'', the ''common people'' or the ''masses'', was in earlier use an ordinary person in a community or nation who did not have any significant social status, especially a member of neither ...
on 15 June 1723, and matriculated on 18 June; the records say that he came from
Bath Bath may refer to: * Bathing, immersion in a fluid ** Bathtub, a large open container for water, in which a person may wash their body ** Public bathing, a public place where people bathe * Thermae, ancient Roman public bathing facilities Plac ...
rather than Perth, because the person recording the names of the new students was unable to understand his Scottish accent. His older brother James was a
barrister A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and givin ...
in Scotland, and his family decided that a career as a barrister was best for Murray. The Scottish
Bar Bar or BAR may refer to: Food and drink * Bar (establishment), selling alcoholic beverages * Candy bar * Chocolate bar Science and technology * Bar (river morphology), a deposit of sediment * Bar (tropical cyclone), a layer of cloud * Bar ( ...
at the time was overcrowded, which made it difficult for a young barrister to build a reputation, yet qualifying for the English Bar was extremely expensive.Heward (1979) p. 8 Thanks to the patronage of Thomas Foley, 1st Baron Foley, who gave Murray £200 a year to live on, Murray could afford to study at the bar, and became a member of
Lincoln's Inn The Honourable Society of Lincoln's Inn is one of the four Inns of Court in London to which barristers of England and Wales belong and where they are called to the Bar. (The other three are Middle Temple, Inner Temple and Gray's Inn.) Lincol ...
on 23 April 1724. After George I died on 11 June 1727, Murray entered and won a competition to write a Latin poem titled "The Death of the King".Heward (1979) p. 9 His actions were seen as a show of support for the
House of Hanover The House of Hanover (german: Haus Hannover), whose members are known as Hanoverians, is a European royal house of German origin that ruled Hanover, Great Britain, and Ireland at various times during the 17th to 20th centuries. The house or ...
and the political ''
status quo is a Latin phrase meaning the existing state of affairs, particularly with regard to social, political, religious or military issues. In the sociological sense, the ''status quo'' refers to the current state of social structure and/or values. ...
'', something odd considering the strong Jacobite sympathies of his family. He probably did this because, having no private income, he wished to secure patronage to help him advance politically. Another entrant was William Pitt, who was a constant rival to Murray until Pitt's death in 1778.Fifoot (1936) p. 28 There is very little information about Murray's time at Oxford; it is known that he studied ancient and modern history, became fluent in French and gained a good understanding of
Roman Law Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the '' Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
.Heward (1979) p. 10 He also became fluent in Latin, translating
Cicero Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the esta ...
's works into English and then back into Latin. He gained his
Bachelor of Arts Bachelor of arts (BA or AB; from the Latin ', ', or ') is a bachelor's degree awarded for an undergraduate program in the arts, or, in some cases, other disciplines. A Bachelor of Arts degree course is generally completed in three or four yea ...
degree in 1727, and travelled to London to train as a barrister.


Family life

Murray married Elizabeth Finch. They had no children and took care of their niece,
Lady Elizabeth Murray Lady Elizabeth Mary Finch-Hatton (née Lady Elizabeth Mary Murray; 18 May 1760 – 1 June 1825) was a British aristocrat and the subject of a notable painting, once thought to be by Johann Zoffany, now attributed to David Martin. Biography ...
(born 1760), after her mother died. When Mansfield's nephew Captain Sir John Lindsay returned to Britain in 1765 following the
Seven Years' War The Seven Years' War (1756–1763) was a global conflict that involved most of the European Great Powers, and was fought primarily in Europe, the Americas, and Asia-Pacific. Other concurrent conflicts include the French and Indian War (1754 ...
and his assignment in the West Indies, he brought his natural daughter whom he called Elizabeth. Of half African descent, she had been born into slavery in 1761, the daughter of Maria Bell, an enslaved woman. Lindsay asked Murray to take on her care and education, and Elizabeth was baptized Dido Elizabeth Belle in 1766 in London.


At the English bar

Murray's first contact when he moved to London was William Hamilton, a Scottish-born barrister who was said to be the first Scot to practise at the English Bar, and one of the few people who was qualified to act as a barrister in both England and Scotland.Heward (1979) p. 12 Hamilton had been one of Murray's sponsors when he joined Lincoln's Inn in 1724, and when Murray came to London, Hamilton helped find him a set of
barristers' chambers In law, a barrister's chambers or barristers' chambers are the rooms used by a barrister or a group of barristers. The singular refers to the use by a sole practitioner whereas the plural refers to a group of barristers who, while acting as sol ...
at No. 1 Old Square. At this time, there was no formal legal education, and the only requirement for a person to be
called to the Bar The call to the bar is a legal term of art in most common law jurisdictions where persons must be qualified to be allowed to argue in court on behalf of another party and are then said to have been "called to the bar" or to have received "call to ...
was for him to have eaten five dinners a term at Lincoln's Inn, and to have read the first sentence of a paper prepared for him by the steward.Heward (1979) p. 13 Thus, most of Murray's practical training came from reading the papers in Hamilton's chambers and listening to Lord Raymond speak in court, along with tutoring by
Thomas Denison Sir Thomas Denison (1699 – 8 September 1765) was a British judge. Born in Leeds, a city in West Yorkshire, England). Denison's father William was a clothier described as "an opulent merchant at Leeds".Edward Foss, ''The Judges of England, With ...
on how to write special pleadings. Murray also studied various texts, including the French ''Ordinance de la Marine'' (a predecessor to the Napoleonic Commercial Code), the works of Bracton and Littleton and "crabbed and uncouth compositions" on
municipal law Municipal law is the national, domestic, or internal law of a sovereign state and is defined in opposition to international law. Municipal law includes many levels of law: not only national law but also state, provincial, territorial, regional, ...
.Fifoot (1936) p. 29. Murray was called to the Bar on 23 November 1730, taking a set of chambers at 5 King's Bench Walk. He was introduced to
Alexander Pope Alexander Pope (21 May 1688 O.S. – 30 May 1744) was an English poet, translator, and satirist of the Enlightenment era who is considered one of the most prominent English poets of the early 18th century. An exponent of Augustan literature, ...
around this time, and through his friendship met members of the aristocracy, some of whom later became his clients, including
Sarah Churchill, Duchess of Marlborough Sarah Churchill, Duchess of Marlborough, Princess of Mindelheim, Countess of Nellenburg (née Jenyns, spelt Jennings in most modern references; 5 June 1660 (Old Style) – 18 October 1744), was an English courtier who rose to be one of th ...
. Pope also taught him
orator An orator, or oratist, is a public speaker, especially one who is eloquent or skilled. Etymology Recorded in English c. 1374, with a meaning of "one who pleads or argues for a cause", from Anglo-French ''oratour'', Old French ''orateur'' (14th ...
y, which helped him enormously in court. His first two cases were in the English Court of Sessions in 1733, where he was led by Charles Talbot and opposed by Philip Yorke. The support of Talbot and Yorke allowed him to gain a respectable practice in the
Court of Chancery The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness (or "inequity") of the common law. The Chancery had jurisdiction over all matters of equ ...
.Fifoot (1936) p. 34 The 1707 Acts of Union had merged the
Kingdom of England The Kingdom of England (, ) was a sovereign state on the island of Great Britain from 12 July 927, when it emerged from various Anglo-Saxon kingdoms, until 1 May 1707, when it united with Scotland to form the Kingdom of Great Britain. On ...
and
Kingdom of Scotland The Kingdom of Scotland (; , ) was a sovereign state in northwest Europe traditionally said to have been founded in 843. Its territories expanded and shrank, but it came to occupy the northern third of the island of Great Britain, sharing a l ...
into one national entity, but they retained separate legal systems. However, the
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminst ...
became the highest court of appeal in both English and Scottish law, and as a result, from 1707 Scottish cases on appeal from the
Court of Session The Court of Session is the supreme civil court of Scotland and constitutes part of the College of Justice; the supreme criminal court of Scotland is the High Court of Justiciary. The Court of Session sits in Parliament House in Edinburg ...
were sent there. To deal with these cases, a barrister had to be familiar with both Scottish and
English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, b ...
, and Murray found his niche, acting in Scottish cases in the House of Lords as early as 1733.Plunkett (1956) p. 249Heward (1979) p. 14 His work in ''Moncrieff v Moncrieff'' in 1734 established Murray as a brilliant young barrister praised for his performance by Lords Cowper and Parker. After ''Moncrieff'', Murray was involved in almost every case in the House of Lords, whether it had been appealed from a Scottish court or not.Foss (1870) p. 470 In 1737, Murray acted as Counsel for the City of
Edinburgh Edinburgh ( ; gd, Dùn Èideann ) is the capital city of Scotland and one of its 32 Council areas of Scotland, council areas. Historically part of the county of Midlothian (interchangeably Edinburghshire before 1921), it is located in Lothian ...
in the aftermath of the death of
Captain John Porteous Captain John Porteous (c. 1695 – 1736), was a Scottish soldier and Captain of the Edinburgh City or Town Guard. Early life John Porteous was born at The Glen, Quair Water, near Traquair, in the Borders, the son of Stephen Porteous, a tail ...
. In Edinburgh, it was traditional for criminals sentenced to death to be allowed to visit a church near the city jail the Sunday before the execution. Two criminals named Wilson and Robertson took this as an opportunity to escape, and although Wilson did not make it out of the church, Robertson escaped completely.Heward (1979) p. 15 Wilson had been a smuggler who supplied his fellow citizens with goods, and because of this and the unpopularity of the city guard, public opinion was firmly on his side. Porteous was the captain of the Edinburgh city guard, and angry with Wilson's attempt to escape and aware of the possibility of an attempt to free him. Porteous ordered a guard of 80 men to be placed around the gallows for Wilson's execution. When a man attempted to cut Wilson's body down after the execution, Porteous ordered his troops to fire on the crowd, and seven people were killed. Porteous was initially sentenced to death for murder, and when the execution was delayed, a mob of citizens rushed the city jail and lynched him. As a result, a bill was proposed in the
House of Commons The House of Commons is the name for the elected lower house of the bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of parliament. T ...
that sought to punish the City of Edinburgh for the behaviour of its citizens by disenfranchising the city.Heward (1979) p. 20 Murray represented the City in both the House of Commons and the
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminst ...
, and eventually whittled down the bill so much that by the time it was voted on, it simply proposed to fine the city and disqualify the Provost. In exchange for his work, the citizens of Edinburgh gave him the
Freedom of the City The Freedom of the City (or Borough in some parts of the UK) is an honour bestowed by a municipality upon a valued member of the community, or upon a visiting celebrity or dignitary. Arising from the medieval practice of granting respected ...
and a diamond, which is still in the possession of his family. Murray's reputation continued to grow; in 1738, he was involved in 11 of the 16 cases heard in the House of Lords, and in 1739 and 1740 he acted as legal counsel in 30 cases there. On 20 September 1738, he married Lady Elizabeth Finch, the daughter of Daniel Finch, 2nd Earl of Nottingham, at Raby Castle in Durham.Heward (1979) p. 24 Her sister Mary was married to
Thomas Watson-Wentworth, 1st Marquess of Rockingham Thomas Watson-Wentworth, 1st Marquess of Rockingham, KB, PC (I) (13 November 1693 – 14 December 1750) of Wentworth Woodhouse, Yorkshire was a British Whig politician who sat in the House of Commons from 1715 until 1728 when he was raised to ...
. Murray's connection with the Marquess had a significant positive influence on his future career. After a short holiday, Murray returned to his work as a barrister.


Member of Parliament

Murray had repeatedly refused to become a
Member of Parliament A member of parliament (MP) is the representative in parliament of the people who live in their electoral district. In many countries with bicameral parliaments, this term refers only to members of the lower house since upper house members o ...
, saying he had no interest in politics.Heward (1979) p. 30 In 1742, however, the government of Sir Robert Walpole fell, and Murray's brother-in-law, the Earl of Nottingham, became
First Lord of the Admiralty The First Lord of the Admiralty, or formally the Office of the First Lord of the Admiralty, was the political head of the English and later British Royal Navy. He was the government's senior adviser on all naval affairs, responsible for the di ...
in the new
Cabinet Cabinet or The Cabinet may refer to: Furniture * Cabinetry, a box-shaped piece of furniture with doors and/or drawers * Display cabinet, a piece of furniture with one or more transparent glass sheets or transparent polycarbonate sheets * Filin ...
. With this added political influence, Murray hoped to be appointed to a government office, and when
Sir John Strange Sir John Strange (1696 – 18 May 1754) was a British politician and judge. Life He was born to another John Strange of Fleet Street, London and his second wife, Mary Plaistowe. He studied Law at the Middle Temple on 11 July 1712 before starti ...
resigned as Solicitor General, Murray was made a Member of Parliament for
Boroughbridge Boroughbridge () is a town and civil parish in the Harrogate district of North Yorkshire, England. Historically part of the West Riding of Yorkshire, it is north-west of the county town of York. Until a bypass was built the town lay on t ...
on 15 December 1742 and immediately succeeded Strange as Solicitor General. Although the Solicitor General was the lowest legal appointment, a successful one could be appointed
Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...
, and by custom, the Attorney General was allowed to become
Lord Chief Justice of the King's Bench Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or are ...
if a vacancy arose. Although many barristers were not good politicians, Murray became a successful Member of Parliament, and one noted for his oratorical skills and logical arguments. In 1745, Murray defended the actions of the government in hiring 16,000 Hanoverian troops to help fight in the
War of the Austrian Succession The War of the Austrian Succession () was a European conflict that took place between 1740 and 1748. Fought primarily in Central Europe, the Austrian Netherlands, Italy, the Atlantic and Mediterranean, related conflicts included King George ...
.Heward (1979) p. 31 His argument (that it was the prerogative of the King to decide how a war should be fought, and he should not be second-guessed by politicians with no experience of warfare) defeated the motion to cease employing the Hanoverian troops by 231 votes to 181. Murray became popular with both the government and George II as a result, and in the absence of a strong Attorney General, Murray spoke for the government in most matters. In 1747, he helped
Lord Hardwicke Philip Yorke, 1st Earl of Hardwicke, (1 December 16906 March 1764) was an English lawyer and politician who served as Lord High Chancellor of Great Britain. He was a close confidant of the Duke of Newcastle, Prime Minister between 1754 and 1 ...
write and pass an act to abolish the old hereditary positions in Scotland. In 1751 he drafted the government response to an attempt by the King of
Prussia Prussia, , Old Prussian: ''Prūsa'' or ''Prūsija'' was a German state on the southeast coast of the Baltic Sea. It formed the German Empire under Prussian rule when it united the German states in 1871. It was ''de facto'' dissolved by an e ...
to frustrate neutral shipping, which
Lord Stowell William Scott, 1st Baron Stowell (17 October 174528 January 1836) was an English judge and jurist. He served as Judge of the High Court of Admiralty from 1798 to 1828. Background and education Scott was born at Heworth, a village about four ...
called "the foundation of the modern law of neutrality", and
Montesquieu Charles Louis de Secondat, Baron de La Brède et de Montesquieu (; ; 18 January 168910 February 1755), generally referred to as simply Montesquieu, was a French judge, man of letters, historian, and political philosopher. He is the princi ...
described it as a "résponse sans réplique" (response without a reply).Fifoot (1936) p. 37 The death of Frederick, the heir to the British throne on 20 March 1751, caused constitutional chaos; George II wished to appoint his favourite son
Prince William, Duke of Cumberland Prince William Augustus, Duke of Cumberland (15 April 1721 Old_Style_and_New_Style_dates">N.S..html" ;"title="Old_Style_and_New_Style_dates.html" ;"title="/nowiki> N.S.">Old_Style_and_New_Style_dates.html"_;"title="/nowiki>Old_Style_and_New_St ...
, as Regent (since the heir apparent,
George III George III (George William Frederick; 4 June 173829 January 1820) was King of Great Britain and of Ireland from 25 October 1760 until the union of the two kingdoms on 1 January 1801, after which he was King of the United Kingdom of Great Br ...
, was only a child), while the public favoured the child's mother Princess Augusta.Heward (1979) p. 33 In an attempt to reach a compromise the government introduced a bill to Parliament declaring that Augusta was to be a regent along with a council of others, and that George would become the heir when he reached maturity. Murray made a speech supporting the government's proposal, but despite this, Parliament was not convinced that a council was necessary. On 6 March 1754, the Prime Minister Henry Pelham died, and this necessitated a
Cabinet Cabinet or The Cabinet may refer to: Furniture * Cabinetry, a box-shaped piece of furniture with doors and/or drawers * Display cabinet, a piece of furniture with one or more transparent glass sheets or transparent polycarbonate sheets * Filin ...
reshuffle. The
Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...
, Sir Dudley Ryder, became
Lord Chief Justice of the King's Bench Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or are ...
, and Murray became Attorney General in his place.Heward (1979) p. 40 A few months later the
Master of the Rolls The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the President of the Civil Division of the Court of Appeal of England and Wales and Head of Civil Justice. As a judge, the Master of ...
died, and Murray was asked to replace him; he declined, however, as he "did not want to leave His Majesty's service". After Ryder died unexpectedly on 25 May 1756, however, Murray could not turn down the opportunity, and immediately applied to replace him as Lord Chief Justice. He was accepted, and although his appointment delighted Murray, the government was very concerned at the loss of a good Attorney General.Heward (1979) p. 42 In an attempt to persuade him to stay, the new Prime Minister, the
Duke of Newcastle Duke of Newcastle upon Tyne was a title that was created three times, once in the Peerage of England and twice in the Peerage of Great Britain. The first grant of the title was made in 1665 to William Cavendish, 1st Marquess of Newcastle ...
offered him the post of
Chancellor of the Duchy of Lancaster The chancellor of the Duchy of Lancaster is a ministerial office in the Government of the United Kingdom. The position is the second highest ranking minister in the Cabinet Office, immediately after the Prime Minister, and senior to the Minist ...
, in addition to the position of Attorney General, an extra £6,000 a year, and a pension, and finally attempted to blackmail him by saying that if he accepted the office of Lord Chief Justice, the government would refuse to grant him a
peerage A peerage is a legal system historically comprising various hereditary titles (and sometimes non-hereditary titles) in a number of countries, and composed of assorted noble ranks. Peerages include: Australia * Australian peers Belgium * Be ...
. It was customary for all Lord Chief Justices to be given a peerage, and Murray responded by saying that in that situation he would refuse to become either Lord Chief Justice or Attorney General. Newcastle gave in, and promised to allow him to become Lord Chief Justice and to recommend him for a peerage. This was seen as an excellent result by Murray, who had no interest in politics except as a stepping stone to become a member of the judiciary. Murray was not suited to politics, as he was far too calculating and independent of thought to accept any one party's doctrine.Fifoot (1936) p. 38 His Scottish and Jacobite roots also allowed for endless insinuation and controversy—in 1753 he was accused by the Bishop of Gloucester of "having drunk the health of the
Old Pretender James Francis Edward Stuart (10 June 16881 January 1766), nicknamed the Old Pretender by Whigs, was the son of King James II and VII of England, Scotland and Ireland, and his second wife, Mary of Modena. He was Prince of Wales from ...
on his knees". Although the story was proven to be false, it embarrassed Murray, and was used to taunt him as late as 1770. His rivalry with William Pitt highlighted his unsuitability for politics—unlike such other politicians as Philip Yorke and Edward Thurlow, he did not have the temperament to resist "the vehemence of Pitt's invective". It was widely felt that he could have become
Prime Minister A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is ...
after the death of Henry Pelham, but it would have "set
is genius In linguistics, a copula (plural: copulas or copulae; abbreviated ) is a word or phrase that links the subject of a sentence to a subject complement, such as the word ''is'' in the sentence "The sky is blue" or the phrase ''was not being'' in ...
in a false environment", and he declined all opportunities to return to politics except as Lord Chief Justice.


Lord Chief Justice

Anyone wishing to become a judge was required to be a
Serjeant-at-law A Serjeant-at-Law (SL), commonly known simply as a Serjeant, was a member of an order of barristers at the English and Irish Bar. The position of Serjeant-at-Law (''servientes ad legem''), or Sergeant-Counter, was centuries old; there are wri ...
, which Murray was not; as such, he left
Lincoln's Inn The Honourable Society of Lincoln's Inn is one of the four Inns of Court in London to which barristers of England and Wales belong and where they are called to the Bar. (The other three are Middle Temple, Inner Temple and Gray's Inn.) Lincol ...
to join Serjeant's Inn.Heward (1979) p. 45 He qualified as a Serjeant-at-law on 8 November 1756, and was sworn in as Lord Chief Justice at the house of the
Lord Chancellor The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. Th ...
that evening. Immediately afterwards he was created Baron Mansfield. On 19 November, he was sworn in as a Privy Counsellor. He suspended his duties temporarily on 5 April 1757, when appointed
Chancellor of the Exchequer The chancellor of the Exchequer, often abbreviated to chancellor, is a senior minister of the Crown within the Government of the United Kingdom, and head of HM Treasury, His Majesty's Treasury. As one of the four Great Offices of State, the Ch ...
, due to an old custom that the Lord Chief Justice took the position when it was empty. He only served until 8 April, and there is no evidence of his performing anything more than the standard day-to-day duties. He became a cabinet minister in 1757, still serving as Lord Chief Justice, and stayed until 1765.


Reform

Mansfield first sat in court on 11 November 1756, and at the time had "a very low estimate of the Common Law of England which he was to administer". The legal system had been put together in the period immediately after the
Norman conquest of England The Norman Conquest (or the Conquest) was the 11th-century invasion and occupation of England by an army made up of thousands of Norman, Breton, Flemish, and French troops, all led by the Duke of Normandy, later styled William the Conqu ...
, and was completely unsuited to the 18th century, when Britain was "the greatest manufacturing and commercial country in the world". Mansfield immediately began to reform the way the law and courts worked. One of his first acts as Lord Chief Justice was to change the system for submitting motions.Heward (1979) p. 46 Every day the court was in session, all barristers were invited to submit motions, in order of their seniority as barristers. Because they were allowed to submit as many motions as they wanted, by the time junior
barrister A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and givin ...
s were allowed to submit their motions, it was normally the end of the day. This meant that almost all the work went to the senior barristers, who were so overworked that they often did not have time to prepare properly before going to court. In addition it meant that work for junior barristers was scarce, hindering their careers. Mansfield changed the system so that barristers were allowed to submit only one motion a day, and if not all barristers had been heard by the end of the day, they could continue where they left off the next morning. At the time it was also traditional for all judgments to be
reserved Reserved is a Polish apparel retailer headquartered in Gdańsk, Pomerania, Poland. It was founded in 1999 and remains the largest company of the LPP group, which has more than 1,700 retail stores located in over 20 countries and also owns such ...
. Although in a small number of cases this was useful, in the majority of cases it simply made coming to court more expensive and wasted time. As soon as Mansfield became Lord Chief Justice, he changed the rules so that, unless the court had doubts over the evidence presented to them, a judgment was to be made immediately. This had a far-reaching effect on the English courts. Judges from the
Court of Appeal A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much ...
and
High Court of Justice The High Court of Justice in London, known properly as His Majesty's High Court of Justice in England, together with the Court of Appeal and the Crown Court, are the Senior Courts of England and Wales. Its name is abbreviated as EWHC ( Engl ...
now give reserved judgments in only a minority of cases. His reforms led to the Court of King's Bench becoming one of the most active courts, at the expense of the Court of Common Pleas, which was described as the "sleepy hollow".


Mercantile law changes

In the eighteenth century, English merchant law was still based on the ''
Lex mercatoria ''Lex mercatoria'' (from the Latin for "merchant law"), often referred to as "the Law Merchant" in English, is the body of commercial law used by merchants throughout Europe during the medieval period. It evolved similar to English common law as ...
'', a medieval series of customs and principles used to regulate trading.Heward (1979) p. 99 Other countries in Europe had reformed and modernised their law, resulting in English merchant law being about a century behind mercantile law of other European countries. A merchant was, by his very nature, international, and the inconsistencies between English law and the law of other nations made business difficult. Mansfield made a great effort to bring English merchant law up to the same standards as that of other European nations, defining his position by saying that "the daily negotiations and property of merchants ought not to depend on subtleties and niceties, but upon rules easily learned and easily retained because they are dictates of common sense drawn from the truth of the case".Heward (1979) p. 101 In most European countries, the principle was that a merchant was bound by his promises, not just his signed legal documents, while English lawyers maintained that a merchant could only be legally bound by documents that he signed. The European principle was based on the assumption of good faith on the part of the merchants, or ''
uberrima fides ''Uberrima fides'' (sometimes seen in its genitive form ''uberrimae fidei'') is a Latin phrase meaning "utmost good faith" (literally, "most abundant faith"). It is the name of a legal doctrine which governs insurance contracts. This means that ...
'', something completely lacking in English law. In , Mansfield got a chance to reform the law relating to the assumption of good faith. Carter was the Governor of Fort Marlborough (now
Bengkulu Bengkulu is a province of Indonesia. It is located on the southwest coast of Sumatra. It was formed on 18 November 1968 by separating out the former Bencoolen Residency area from the province of South Sumatra under Law No. 9 of 1967 and was fi ...
), which was built by the
British East India Company The East India Company (EIC) was an English, and later British, joint-stock company founded in 1600 and dissolved in 1874. It was formed to trade in the Indian Ocean region, initially with the East Indies (the Indian subcontinent and South ...
in
Sumatra Sumatra is one of the Sunda Islands of western Indonesia. It is the largest island that is fully within Indonesian territory, as well as the sixth-largest island in the world at 473,481 km2 (182,812 mi.2), not including adjacent i ...
,
Indonesia Indonesia, officially the Republic of Indonesia, is a country in Southeast Asia and Oceania between the Indian and Pacific oceans. It consists of over 17,000 islands, including Sumatra, Java, Sulawesi, and parts of Borneo and New Gui ...
.Heward (1979) p. 102 He took out an insurance policy with Boehm against the fort's being taken by a foreign enemy. A witness called Captain Tryon testified that Carter knew the fort was built to resist attacks from natives but not European enemies, and the French were likely to attack. The French did attack, and Boehm refused to fulfil the insurance claim. Mansfield decided in favour of Boehm, saying that Carter had failed his duty of ''uberrima fides''. In his judgment Mansfield said that:
Insurance is a contract based upon speculation. The special facts, upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only; the underwriter trusts to his representation and proceeds upon the confidence that he does not keep back any circumstance in his knowledge, to mislead the underwriter into a belief that the circumstance does not exist, and to induce him to estimate the risque as if it did not exist. Good faith forbids either party by concealing what he privately knows, to draw the other into a bargain from his ignorance of that fact, and his believing the contrary.Heward (1979) p. 103
This was an attempt by Mansfield to introduce the assumption of good faith into English law, and although it failed for the most part (as most areas of English commercial law no longer use ''uberrima fides''), it is still used in insurance contracts. In insurance agreements, the insuree inevitably knows more about the risk involved than the insurer; without the requirement for pre-contractual "good faith," the insuree would have no reason to tell the truth, and insurance companies would be loath to make contracts. In the earlier case of , Mansfield had tried to challenge the doctrine of
consideration Consideration is a concept of English common law and is a necessity for simple contracts but not for special contracts (contracts by deed). The concept has been adopted by other common law jurisdictions. The court in '' Currie v Misa'' declar ...
.Heward (1979) p. 104 In English law, consideration is a vital part of the contract; without valid consideration, almost any contract is void. But, Mansfield argued in his judgment that it should only be treated as evidence of a contract, not as a vital element. Mansfield failed to make clear that he was referring only to consideration in commercial contracts, not general contracts, and as a result his judgment read that consideration was not required for ''any'' contract. His judgment has been much criticised by legal academics, and was effectively overruled by the
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminst ...
in ''Rann v Hughes''
778 __NOTOC__ Year 778 ( DCCLXXVIII) was a common year starting on Thursday of the Julian calendar. The denomination 778 for this year has been used since the early medieval period, when the Anno Domini calendar era became the prevalent method ...
7 T. R. 350. Mansfield also enforced a previous judgement of the Court of King's Bench made in 1645, in which they allowed a special jury of merchants to sit in cases involving commercial law.Lowry (1973) p. 609 He built up a special corps of these jurymen, some of whom, such as
Edward Vaux Edward is an English given name. It is derived from the Anglo-Saxon name ''Ēadweard'', composed of the elements '' ēad'' "wealth, fortune; prosperous" and '' weard'' "guardian, protector”. History The name Edward was very popular in Anglo-Sax ...
, became noted experts on commercial law. "Lord Mansfield's jurymen" acted as an effective liaison between the merchants and the courts. Mansfield was personally a supporter of
free trade Free trade is a trade policy that does not restrict imports or exports. It can also be understood as the free market idea applied to international trade. In government, free trade is predominantly advocated by political parties that hold econ ...
who was heavily influenced by
Roman law Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the '' Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
and ancient Roman and Greek writers such as
Cicero Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the esta ...
and
Xenophon Xenophon of Athens (; grc, Ξενοφῶν ; – probably 355 or 354 BC) was a Greek military leader, philosopher, and historian, born in Athens. At the age of 30, Xenophon was elected commander of one of the biggest Greek mercenary armies o ...
. In 1783, Mansfield heard the case of , regarding the payment of an insurance claim for slaves killed when thrown overboard by the captain of a slave-ship – an event now known as the ''Zong'' massacre. Mansfield, in summing up the jury's verdict, said "The Case of Slaves was the same as if Horses had been thrown over board", and endeavoured to uphold the notion that slaves were property which could be destroyed in situations of "absolute necessity". But, new information was introduced in the case, and he ruled against the owners of the ship. In doing this, he achieved his aim of preventing maritime insurance law from becoming more complicated.


Copyright law

Mansfield made another notable judgment in , in relation to copyright law.
Andrew Millar Andrew Millar (17058 June 1768) was a British publisher in the eighteenth century. Biography In 1725, as a twenty-year-old bookseller apprentice, he evaded Edinburgh city printing restrictions by going to Leith to print, which was considered b ...
was a bookseller who in 1729 had purchased the publishing rights to James Thomson's poem " The Seasons". After the term of the exclusive rights granted under the
Statute of Anne The Statute of Anne, also known as the Copyright Act 1710 (cited either as 8 Ann. c. 21 or as 8 Ann. c. 19), was an act of the Parliament of Great Britain passed in 1710, which was the first statute to provide for copyright regulated by the g ...
expired, Robert Taylor began publishing his own competing publication, which contained Thomson's poem. Mansfield, sitting with three other judges, concluded that despite the Statute of Anne there was a perpetual
common law copyright Common law copyright is the legal doctrine that grants copyright protection based on common law of various jurisdictions, rather than through protection of statutory law. In part, it is based on the contention that copyright is a natural right ...
, and therefore that no works can ever be considered
public domain The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired ...
.Heward (1979) p. 105 This was a massive victory for booksellers and publishers, as it meant that they could effectively make it impossible for new companies to compete, as in the absence of new texts, there was nothing they could print. Mansfield's judgment was finally overruled by the House of Lords in '' Donaldson v Beckett'' in 1774. Mansfield's judgment has been criticised as being unusually short-sighted because he failed to see that while his decision was correct for that particular case, the precedent it would set would create an unfair monopoly for the booksellers and publishers. This was one of only a small number of cases in which Mansfield was overruled; in his entire career only six of his judgments were overturned by a higher court. Mansfield's judgement here has been seen as part of a wider agenda; along with other legal figures such as
Sir William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family in ...
, he was personally in favour of a perpetual copyright.


Junius

In 1695 Parliament failed to renew the Licensing Acts, and as a result, the press were free to print material attacking the government.Heward (1979) p. 125 Although there were eight attempts to force a new Licensing Act through Parliament between 1697 and 1713, none of them succeeded. Despite the freedom of the press from pre-censorship by the government, the judiciary regularly tried people for seditious libel if they printed material attacking the government. From 21 November 1768, letters written by a man under the pseudonym of Junius were published in the ''
Public Advertiser The ''Public Advertiser'' was a London newspaper in the 18th century. The ''Public Advertiser'' was originally known as the ''London Daily Post and General Advertiser'', then simply the ''General Advertiser'' consisting more or less exclusively o ...
'', a London newspaper run by Henry Sampson Woodfall.Heward (1979) p. 127 In them, Junius attacked many political leaders, including Lord Granby and Mansfield. As his letters were wildly popular, the circulation of the ''Public Advertiser'' doubled in just five months. On 19 December 1769, Junius wrote a letter attacking the King, and incensed at this, the government ordered several people to be arrested and tried for seditious libel, including Woodfall for publishing the letters, John Almon for selling them, and John Miller for republishing them. Almon's case was heard at
Westminster Hall The Palace of Westminster serves as the meeting place for both the House of Commons of the United Kingdom, House of Commons and the House of Lords, the two houses of the Parliament of the United Kingdom. Informally known as the Houses of Parli ...
by Mansfield and a jury on 2 June 1770. He was found guilty, although it is unclear in what fashion he was punished, if at all. Woodfall was tried on 13 June 1770, by Mansfield and a jury. While Mansfield believed that the language used was libellous, the jury disagreed, and held that he was "guilty of printing and publishing only", and innocent of seditious libel.Heward (1979) p. 128 Miller was tried on 13 July 1770, and after six hours of discussion, the jury found him innocent. As a result of these two trials, it became clear that no jury would convict a printer for printing these letters, leaving Junius free to continue publishing them. On 14 November 1770, a letter by Junius directed at Mansfield was published by the ''Public Advertiser'' and the '' London Evening Post'', a newspaper run by John Miller.Heward (1979) p. 129 In it, Junius attacked Mansfield, first for being Scottish, then for being a lapsed Jacobite, and finally for attempting to suppress the freedom of the press. In a response to Junius' letter dated 16 November 1770, Mansfield made the following threat: :"Sir, if in future you indulge the ill-founded asperity of your Pen, oumay be called to answer for your Conduct, in a way that may cause you to regret that ever you was born, or, at least, that Nature has given you Abilities, which, if guided by Discretion, would have made you as much a Blessing, as you are now a Curse to Mankind." Although the
Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...
, William de Grey, advised that the publishers should again be prosecuted, Mansfield disagreed, saying that if they failed to respond to Junius, he would become bored and stop writing. Mansfield was evidently correct, because other than a letter printed on 5 October 1771, Junius ceased to write at the beginning of 1772.


Somersett's Case

Mansfield is best known for his judgment in Somersett's Case on the legality of keeping
slaves Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to perf ...
in England.Heward (1979) p. 139 The English had been involved in the
slave trade Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to perf ...
since 1553, and by 1768, ships registered in Liverpool, Bristol and London carried more than half the slaves shipped in the world.
James Somersett James Somerset ( – after 1772) was an African man and the plaintiff in a pivotal court case that confirmed that slavery was not legal in England and Wales. Biography Somerset was born in West Africa around 1741. He was captured when he was about ...
was a slave owned by Charles Stewart, an American customs officer who sailed to Britain for business, landing on 10 November 1769. A few days later Somersett attempted to escape. He was recaptured in November and imprisoned on the ship ''Ann and Mary'', owned by Captain John Knowles and bound for the British colony of Jamaica. Stewart intended to sell him there. However, three people claiming to be Somersett's godparents, John Marlow, Thomas Walkin and Elizabeth Cade, made an application before the Court of King's Bench for a writ of ''
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, ...
'', and Captain Knowles was ordered to produce Somersett before the Court of King's Bench, which would determine whether his imprisonment was legal. Mansfield ordered a hearing for 22 January 1772. Following an adjournment, the case was not heard until 7 February 1772. In the meantime, the case had attracted a great deal of attention in the press, and members of the public were forthcoming with donations to fund lawyers for both sides of the argument.Heward (1979) p. 140 An activist layman,
Granville Sharp Granville Sharp (10 November 1735 – 6 July 1813) was one of the first British campaigners for the abolition of the slave trade. He also involved himself in trying to correct other social injustices. Sharp formulated the plan to settle black ...
, who continually sought test cases against the legal justifications for slavery, was Somersett's real backer. When the case was heard, no fewer than five advocates appeared for the slave, speaking at three separate hearings between February and May. These lawyers included William Davy SL, John Glynn SL,Van Cleve (2006) p. 2 James Mansfield and Francis Hargrave, who was later to become a noted barrister based on his work in this case. Charles Stewart was represented by John Dunning and James Wallace. On behalf of Somersett, it was argued that while colonial laws might permit slavery, neither the common law of England, nor any law made by
Parliament In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...
recognised the existence of slavery, and slavery was therefore illegal. Moreover, English contract law did not allow for any person to enslave himself, nor could any contract be binding without the person's consent. The arguments thus focused on legal details rather than humanitarian principles. A law passed in 1765 said that all lands, forts and slaves owned by the Africa Company were a property of the Crown, which could be interpreted to mean that the Crown accepted slavery. When the two lawyers for Charles Stewart put their case, they argued that a contract for the sale of a slave was recognised in England, and therefore the existence of slaves must be legally valid. After the attorneys for both sides had given their arguments, Mansfield called a recess, saying that "
he case He or HE may refer to: Language * He (pronoun), an English pronoun * He (kana), the romanization of the Japanese kana へ * He (letter), the fifth letter of many Semitic alphabets * He (Cyrillic), a letter of the Cyrillic script called ''He'' in ...
required ... consultation ... among the twelve Judges". Finally, on 22 June 1772 Mansfield gave his judgment, which ruled that a master could not carry his slave out of England by force, and concluded:
The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only
positive law Positive laws ( la, links=no, ius positum) are human-made laws that oblige or specify an action. Positive law also describes the establishment of specific rights for an individual or group. Etymologically, the name derives from the verb ''to posit ...
, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it's so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.Heward (1979) p. 141
Though the ruling criticised slavery, it did conclusively establish that there was no legal status of slave in either parliamentary legislation or the
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
.Simon Schama, ''Rough Crossings'' (London: BBC Books, 2005), pp. 51–61. This did not effect slavery in the British Empire which would not be done until the passage of the 1833 Slavery Abolition Act through Parliament. As a result of the reporting of Mansfield's decision, public opinion and some newspapers gave the impression that slavery had been abolished in England by the ruling. Some historians believe that between 14,000 and 15,000 slaves were immediately freed in England, some of whom remained with their masters as paid or unpaid employees. However, it is questionable whether that many black people lived in England at the time, and those who did were mostly free already. Despite the ruling, Black Britons were occasionally kidnapped in the streets of London, Liverpool and Bristol and forcibly brought back to the colonies.(Such an incident was recounted by Olaudah Equiano in 1774 in his autobiography, ''An Interesting Narrative'' (1789).) Contemporary reports suggested that Mansfield's personal experience with raising Dido Belle influenced his decision.Nisha Lilia Diu
"Dido Belle: Britain’s first black aristocrat"
''The Telegraph'', 6 June 2014.
>


Lord Mansfield's Rule

Lord Mansfield is frequently mentioned in modern legal settings as the originator of "Lord Mansfield's Rule", in his own words: "...the law of England is clear, that the declarations of a father or mother, cannot be admitted to bastardize the issue born after marriage." This quote comes from Mansfield's appellate decision in . The primary legal question in the case was not this preexisting principle, which applies only to children "born after marriage", but rather whether the child had been born before the marriage. The question was whether statements the child's parents allegedly made before their deaths could be introduced as evidence that the child had been born before their marriage and was thus illegitimate. Mansfield ruled to admit the testimony against the child's legitimacy and grant a new trial. The term "Lord Mansfield's Rule" is often used in a slightly different sense to denote the principle still applied in several jurisdictions that marriage creates a conclusive presumption of a husband's paternity of his wife's child.


House of Lords

After the formation of the Fox-North Coalition, Mansfield agreed to act as
Speaker of the House of Lords The Lord Speaker is the presiding officer, chairman and highest authority of the House of Lords in the Parliament of the United Kingdom. The office is analogous to the Speaker of the House of Commons: the Lord Speaker is elected by the members ...
, taking up his post in February 1783.Heward (1979) p. 162 The main item of debate during the Coalition Ministry was the
East India Bill East or Orient is one of the four cardinal directions or points of the compass. It is the opposite direction from west and is the direction from which the Sun rises on the Earth. Etymology As in other languages, the word is formed from the fa ...
, which provoked bitter arguments in both the
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminst ...
and
House of Commons The House of Commons is the name for the elected lower house of the bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of parliament. T ...
. In an attempt to speed up the process of passing the bill, Mansfield left his position as speaker to debate directly on 15 December; when this failed to help he returned to the Woolsack the next day. The failure of the bill caused the government to be immediately dismissed, and Mansfield left his position on 23 December 1783. Mansfield had been made earl of Mansfield, in the County of Nottingham, on 31 October 1776. He attended the Lords as Lord Speaker, and the last record of him attending (other than his presence at the state opening of Parliament on 23 March 1784)Heward (1979) p. 163 was in December 1783.


Retirement and Death

Despite failing health, Mansfield refused to officially leave his post as Lord Chief Justice because
George III George III (George William Frederick; 4 June 173829 January 1820) was King of Great Britain and of Ireland from 25 October 1760 until the union of the two kingdoms on 1 January 1801, after which he was King of the United Kingdom of Great Br ...
was opposed to the appointment of Mansfield's protégé Francis Buller to the position after Mansfield resigned.Foss (1870) p. 472 The government of the time instead suggested Lloyd Kenyon as a possible successor. Mansfield clung to office until 1788 (despite not sitting in court for two years), in the hope that the government would fall before he was forced to retire.Heward (1979) p. 166 This was not to be, and on 3 June, he wrote a letter of resignation effective the next day. Mansfield spent the remainder of his life at Kenwood House.Heward (1979) p. 168 Most of his time was spent maintaining the grounds. In the summer, he was visited by groups of
barrister A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and givin ...
s who informed him of the goings-on at court. On 1 August 1792 he was made Earl of Mansfield, in the County of
Middlesex Middlesex (; abbreviation: Middx) is a historic county in southeast England. Its area is almost entirely within the wider urbanised area of London and mostly within the ceremonial county of Greater London, with small sections in neighbour ...
. On 10 March 1793, he complained of feeling sleepy, and although he recovered the next day, by 12 March, he was again complaining of a need for sleep. He went to bed early and remained asleep until 18 March, when he finally died. His body was buried in the north
transept A transept (with two semitransepts) is a transverse part of any building, which lies across the main body of the building. In cruciform churches, a transept is an area set crosswise to the nave in a cruciform ("cross-shaped") building with ...
of
Westminster Abbey Westminster Abbey, formally titled the Collegiate Church of Saint Peter at Westminster, is an historic, mainly Gothic church in the City of Westminster, London, England, just to the west of the Palace of Westminster. It is one of the United ...
. His monument was sculpted by
John Flaxman John Flaxman (6 July 1755 – 7 December 1826) was a British sculptor and draughtsman, and a leading figure in British and European Neoclassicism. Early in his career, he worked as a modeller for Josiah Wedgwood's pottery. He spent several ye ...
RA. Mansfield left a large amount of money after his death, including land worth £26,000. He gave £2,000 to Francis Buller.


Legacy

English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, b ...
saw significant changes during Mansfield's career.Heward (1979) p. 170 As lord chief justice, Mansfield had done much to reform the way the courts worked, making it easier for people to gain access to legal aid, and also making the process much less expensive. He was also noted for his insistence that
equity Equity may refer to: Finance, accounting and ownership *Equity (finance), ownership of assets that have liabilities attached to them ** Stock, equity based on original contributions of cash or other value to a business ** Home equity, the diff ...
should be applied by all courts, not just the
Court of Chancery The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness (or "inequity") of the common law. The Chancery had jurisdiction over all matters of equ ...
, a view that provoked much disagreement during his lifetime, but was eventually confirmed by Parliament in the Supreme Court of Judicature Act 1873, which allowed all courts to take cases of equity. He also established the principle that rather than blindly following precedent, judges should seek to find loopholes in rules that were no longer applicable, something that later received the support of Oliver Wendell Holmes, Jr., who said, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is more revolting still if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."Heward (1979) p. 171 He made his judgements on the principle that "as the usages of society alter, the law must adapt itself to the various situations of mankind", leading John Baker to describe him as "one of the boldest of judicial spirits". His most important contributions were to commercial, merchant and common law. Mansfield spent much time bringing the law of England on par with that of other countries, particularly in cases such as '' Pillans & Rose v Van Mierop & Hopkins''
765 __NOTOC__ Year 765 ( DCCLXV) was a common year starting on Tuesday (link will display the full calendar) of the Julian calendar. The denomination 765 for this year has been used since the early medieval period, when the Anno Domini calendar era ...
3 Burr 1663, and ''
Carter v Boehm ''Carter v Boehm'' (1766) 3 Burr 1905 is a landmark English contract law case, in which Lord Mansfield established the duty of utmost good faith or '' uberrimae fidei'' in insurance contracts. Facts Carter was the Governor of Fort Marlborough (n ...
'' 7663 Burr 1905. As a result of his work, he was described by a later judge as "the founder of the commercial law of this country".Foss (1870) p. 471 He was, however, criticised for his resistance to the
freedom of the press Freedom of the press or freedom of the media is the fundamental principle that communication and expression through various media, including printed and electronic media, especially published materials, should be considered a right to be exerc ...
and his refusal to go against the King, as well as for blatant
nepotism Nepotism is an advantage, privilege, or position that is granted to relatives and friends in an occupation or field. These fields may include but are not limited to, business, politics, academia, entertainment, sports, fitness, religion, an ...
—highlighted by his attempts to have Francis Buller made Lord Chief Justice after his retirement. He was also criticised as a politician for his support of a government antagonistic to the colonies; in 1829
John Quincy Adams John Quincy Adams (; July 11, 1767 – February 23, 1848) was an American statesman, diplomat, lawyer, and diarist who served as the sixth president of the United States, from 1825 to 1829. He previously served as the eighth United States ...
described him as "more responsible for the
Revolution In political science, a revolution (Latin: ''revolutio'', "a turn around") is a fundamental and relatively sudden change in political power and political organization which occurs when the population revolts against the government, typically due ...
than any other man". Scholars such as John Chipman Gray have questioned his reputation as a universally successful judge, saying that "the reputation of Lord Mansfield as a commercial lawyer should not blind us to the fact that he was not equally great in the law of
real property In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or aff ...
". Opinion over Mansfield's intention in his ruling in Somerset's Case is mixed, with the current prevailing view being that he did not intend to free the slaves. The judgment was particularly narrow, as it ruled only that a master could not carry his slave out of England by force, not that slaves who came to England were emancipated. This is seen as particularly telling because this was the primary argument of Davy and Hargrave.Van Cleve (2006) p. 4 If Murray had wanted to emancipate the slaves completely, there were various bits of judicial precedent he could have based his decision on, such as '' Smith v Gould'' or '' Shanley v Harvey'', but he did not. Various comments he made before and during the case also suggest that complete emancipation was not his intent; in a preliminary judgment he said that "the setting 14,000 or 15,000 men at once free loose by a solemn opinion, is much disagreeable in the effect it threatens", which one modern legal scholar interprets as indicative of his reluctance to make a decision for fear of economic consequences. Various comments he made to Thomas Hutchinson in private letters, along with his comments about the ''Somersett'' decision in '' R v Inhabitants of Thames Ditton'' also suggest that emancipation was not his goal. In the 1785 ''Inhabitants of Thames Ditton'' case, Lord Mansfield expressed the view that his ruling in the Somerset case decided only that a slave could not be forcibly removed from England against his will. Mansfield's marriage to Lady Finch was barren. His title, which succeeds to this day, passed to his nephew, David Murray, 2nd Earl of Mansfield.


Honours

Mansfield is immortalised in St Stephen's Hall, where he and other notable Parliamentarians look on at visitors to Parliament.parliament.uk: "Architecture of the Palace – St Stephen's Hall"
/ref>''The Illustrated London News,'' illustration accompanying "The New Houses of Parliament", 2 February 1856, p. 121 *In 1801 a large marble monument to him by
John Flaxman John Flaxman (6 July 1755 – 7 December 1826) was a British sculptor and draughtsman, and a leading figure in British and European Neoclassicism. Early in his career, he worked as a modeller for Josiah Wedgwood's pottery. He spent several ye ...
was installed in
Westminster Abbey Westminster Abbey, formally titled the Collegiate Church of Saint Peter at Westminster, is an historic, mainly Gothic church in the City of Westminster, London, England, just to the west of the Palace of Westminster. It is one of the United ...
; it shows a seated Murray flanked by the personifications of
Wisdom Wisdom, sapience, or sagacity is the ability to contemplate and act using knowledge, experience, understanding, common sense and insight. Wisdom is associated with attributes such as unbiased judgment, compassion, experiential self-knowledg ...
and
Justice Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
, with an inscription that reads: *The town of
Mansfield, Massachusetts Mansfield is a town in Bristol County, Massachusetts, United States. As of the United States 2020 Census, the town population is 23,860. Mansfield is in the south-southwest suburbs of Boston and is also close to Providence, Rhode Island. The vi ...
was named after him. *Because of his reputation as a barrister,
Lincoln's Inn The Honourable Society of Lincoln's Inn is one of the four Inns of Court in London to which barristers of England and Wales belong and where they are called to the Bar. (The other three are Middle Temple, Inner Temple and Gray's Inn.) Lincol ...
offer a series of scholarship for the
Bar Vocational Course The Bar Professional Training Course or BPTC is a postgraduate course which allows law graduates to be named and practise as barristers in England and Wales. The eight institutes that run the BPTC along with the four prestigious Inns of Court ...
named the Lord Mansfield Scholarship. *Mansfield has been portrayed as a character several times in television and film – in ''The Fight Against Slavery'' (1975) by John Richmond, ''The British'' (2012) by Timothy West, '' Belle'' (2013) by Tom Wilkinson and ''The Scandalous Lady W'' (2015) by David Calder.


Character

Mansfield was noted at the
Bar Bar or BAR may refer to: Food and drink * Bar (establishment), selling alcoholic beverages * Candy bar * Chocolate bar Science and technology * Bar (river morphology), a deposit of sediment * Bar (tropical cyclone), a layer of cloud * Bar ( ...
, in Parliament, and while sitting as a judge, for his eloquence and skill as a speaker; in particular
Lord Chesterfield Philip Dormer Stanhope, 4th Earl of Chesterfield, (22 September 169424 March 1773) was a British statesman, diplomat, and man of letters, and an acclaimed wit of his time. Early life He was born in London to Philip Stanhope, 3rd Earl of Che ...
described him as "beyond comparison the best speaker" in the House of Commons. He was also a hard worker; he would sometimes do court paperwork himself, as well as do his judicial duties, in an attempt to speed up the legal process.Heward (1979) p. 178 He was summarised by Gareth Jones as "Conservative, urbane, silver-tongued, energetic, cultivated and well read; a highly imaginative lawyer who looked to reason and was not overawed by the legacy of the past".
Edmund Burke Edmund Burke (; 12 January NS.html"_;"title="New_Style.html"_;"title="/nowiki>New_Style">NS">New_Style.html"_;"title="/nowiki>New_Style">NS/nowiki>_1729_–_9_July_1797)_was_an_NS.html"_;"title="New_Style.html"_;"title="/nowiki>New_Style">N ...
, a contemporary, said that "he had some superiors in force, some equals in persuasion; but in ''insinuation'' he was without a rival. He excelled in the statement of a case. This, of itself, was worth the argument of any other man". The comment by
Samuel Johnson Samuel Johnson (18 September 1709  – 13 December 1784), often called Dr Johnson, was an English writer who made lasting contributions as a poet, playwright, essayist, moralist, critic, biographer, editor and lexicographer. The ''Oxford ...
that "Much may be made of a cotsman if he be caught young" was directed at Mansfield, and Johnson also described him as "more than a mere lawyer", while
Edward Coke Edward is an English given name. It is derived from the Anglo-Saxon name ''Ēadweard'', composed of the elements '' ēad'' "wealth, fortune; prosperous" and '' weard'' "guardian, protector”. History The name Edward was very popular in Anglo-Sax ...
, who is considered one of the most important lawyers in the history of English law, was "only a lawyer". Unlike other barristers, Mansfield was noted for always keeping a cool head and being "prudent to the point of timidity". He was criticised for being "moderate and dispassionate", unlike more aggressive barristers such as
Edward Coke Edward is an English given name. It is derived from the Anglo-Saxon name ''Ēadweard'', composed of the elements '' ēad'' "wealth, fortune; prosperous" and '' weard'' "guardian, protector”. History The name Edward was very popular in Anglo-Sax ...
; when asked about this he replied that "I would not have made Sir Edward Coke's speech to gain all Sir Edward Coke's estates and all his reputation". There are conflicting reports about his temperament and attitude as a judge; William Pitt described him as "a very bad judge, proud, haughty to the Bar and hasty in his determinations", and Charles Yorke said he was "offensive and unpopular".Fifoot (1936) p. 48 Both opinions are suspect, however; Pitt's because he was a constant rival to Mansfield and Yorke's because he was attempting to beat Mansfield to the position of
Lord Chancellor The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. Th ...
at the time.
Edward Foss Edward Foss (16 October 1787 – 27 July 1870) was an English lawyer and biographer. He became a solicitor, and on his retirement from practice in 1840, devoted himself to the study of legal antiquities. His ''Judges of England'' (9 vols., 1848� ...
said that "there has never been a judge more venerated by his contemporaries, nor whose memory is regarded with greater respect and affection", and described him as "the great oracle of law".Foss (1870) p. 469 Mansfield has been called "the legal genius of his generation", and compared favourably with
Joseph Story Joseph Story (September 18, 1779 – September 10, 1845) was an associate justice of the Supreme Court of the United States, serving from 1812 to 1845. He is most remembered for his opinions in ''Martin v. Hunter's Lessee'' and '' United States ...
, a judge of the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. Federal tribunals in the United States, federal court cases, and over Stat ...
noted for his brilliance.Leslie (1957) p. 279 Other Americans such as Julian S. Waterman, the founder of the
University of Arkansas School of Law The University of Arkansas School of Law is the law school of the University of Arkansas in Fayetteville, Arkansas, a State university system, state university. It has around 445 students enrolled in its Juris Doctor (J.D.) and Master of Law (LL.M) ...
, described him as "not only the greatest common law judge but the greatest judge in Anglo-American legal history", while Joseph Story himself said that Mansfield "broke down the narrow barrier of the common law, redeemed it from feudal selfishness and barbarity" and that "he was one of those great men raised up by Providence, at a fortunate moment, to effect a salutary revolution in the world".Waterman (1934) p. 549


In popular culture

In the 2013 film ''Belle'', Murray is portrayed by Tom Wilkinson. In the 2015 film ''The Scandalous Lady W'', Murray is portrayed by
David Calder (actor) David Ian Calder (born 1 August 1946) is an English actor. Life and career Calder was born in Portsmouth, Hampshire, England, and trained at the Bristol Old Vic Theatre School. His most high-profile TV roles include Det. Insp. George Resnick ...
.


See also

*
List of cases involving Lord Mansfield This list of cases involving Lord Mansfield includes his major reported legal judgments, particularly during the time that Lord Mansfield served as the Lord Chief Justice of the English Court of the King's Bench from 1756 to 1788. He made histo ...


References


Bibliography

* * * * * * * * * * * * * * * * * * *


External links

{{DEFAULTSORT:Mansfield, William Murray, 1st Earl Of 1705 births 1793 deaths 18th-century English judges People from Perth, Scotland People educated at Westminster School, London Alumni of Christ Church, Oxford Members of Lincoln's Inn Black British history Chancellors of the Exchequer of Great Britain Clan Murray Earls of Mansfield Peers of Great Britain created by George II Lord chief justices of England and Wales Murray, William British MPs 1741–1747 British MPs 1747–1754 British MPs 1754–1761 Members of the Privy Council of Great Britain British legal writers Burials at Westminster Abbey Younger sons of viscounts