William Murray, 1st Earl of Mansfield
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William Murray, 1st Earl of Mansfield, SL
, PC (2 March 1705 – 20 March 1793) was a British barrister
, politician and judge noted for his reform of English law
. Born to Scottish nobility, he was educated in Perth, Scotland
before moving to London at the age of 13 to take up a place at Westminster School
. He was accepted into Christ Church, Oxford
, in May 1723, and graduated four years later. Returning to London from Oxford, he was called to the Bar by Lincoln's Inn
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 for Boroughbridge
, and appointment as Solicitor General
. In the absence of a strong Attorney General
, he became the main spokesman for the government in the House of Commons, 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 Lord Chief Justice, Mansfield modernised both English law
and the English courts system; he sped up the system for submitting motions
and reformed the way judgments were given to reduce time and expense for the parties. For his work in Carter v Boehm
and Pillans v Van Mierop
, he has been called the founder of English commercial law. He is perhaps best known for his judgment in Somersett's Case
, where he held that slavery
was unlawful in England (although this did not end slave trafficking altogether).
in Perthshire
, Scotland
, the fourth son of the 5th Viscount of Stormont and his wife, Margaret, née
Scott, and one of eleven children. Both his parents were strong supporters of the Jacobite
cause, and his older brother James
followed "The Old Pretender
" into exile. The Jacobite sympathies of Murray's family were glossed over by contemporaries, who even claimed that he had been educated at Lichfield Grammar School
with many other members of the English judiciary. This was incorrect, and Murray was in fact educated at Perth Grammar School
, where he was taught Latin, 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. 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
, as James knew the Dean, Francis Atterbury
. The distance from Perth to London was around 400 miles (643.7 km), and the journey took Murray 54 days. 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
, having scored higher in the examination than any other King's Scholar that year. He was admitted as a commoner
on 15 June 1723, and matriculated
on 18 June; the records say that he came from Bath rather than Perth, because the person recording the names of the new students was unable to understand his Scottish accent. James was a barrister
in Scotland, and his family decided that a career as a barrister was best for Murray. The Scottish 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. 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
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". His actions were seen as a show of support for the House of Hanover
and the political status quo
, 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. 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
. He also became fluent in Latin, translating Cicero
's works into English and then back into Latin. He gained his Bachelor of Arts
degree in 1727, and travelled to London to train as a barrister.
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 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. 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 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
.
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
around this time, and through his friendship with Pope met members of the aristocracy, some of whom later became his clients, including Sarah Churchill, Duchess of Marlborough
. Pope also taught him oratory, 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 1707 Acts of Union
had merged the Kingdom of England
and Kingdom of Scotland
into one national entity, but they retained separate legal systems. However, the House of Lords
became the highest court of appeal in both English and Scottish law, and as a result, 1707 Scottish cases on appeal from the Court of Session were sent there. To deal with these cases, a barrister had to be familiar with both Scottish and English law
, and Murray found his niche, acting in Scottish cases in the House of Lords as early as 1733. 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.
In 1737, Murray acted as Counsel for the City of Edinburgh in the aftermath of the death of Captain John Porteous
. 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. 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 that sought to punish the City of Edinburgh for the behaviour of its citizens by disenfranchising
the city. Murray represented the City in both the House of Commons and the House of Lords
, and eventually whittled down the bill so much that by the time it was voted on it was simply a proposal to fine the city and disqualify the Provost
. In exchange for his work the citizens of Edinburgh gave him the Freedom of the City
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
. Her sister Mary was married to Thomas Watson-Wentworth, 1st Marquess of Rockingham
, and Murray's connection with the Marquess was to have a significant impact on his future career. After a short holiday, Murray returned to his work as a barrister.
fell, and Murray's brother-in-law, the Earl of Nottingham
, became First Lord of the Admiralty in the new Cabinet
. With this added political influence, Murray hoped to be appointed to a government office, and when Sir John Strange
resigned as Solicitor General
, Murray was made a Member of Parliament for Boroughbridge
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
, and by custom, the Attorney General was allowed to become Lord Chief Justice of the King's Bench 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
. 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
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
to frustrate neutral shipping, which Lord Stowell
called "the foundation of the modern law of neutrality", and Montesquieu
described it as a "résponse sans éplique" (response without a reply).
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, as Regent (since the heir apparent, George III
, was only a child), while the public favoured the child's mother Princess Augusta
. 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
reshuffle. The Attorney General
, Sir Dudley Ryder
, became Lord Chief Justice of the King's Bench, and Murray became Attorney General in his place. A few months later the Master of the Rolls
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. In an attempt to persuade him to stay, the new Prime Minister, the Duke of Newcastle
offered him the Duchy of Lancaster
, 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
. 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. 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
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 other politicians such 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
after the death of Henry Pelham
, but it would have "set [his genius] in a false environment", and he declined all opportunities to return to politics except as Lord Chief Justice.
Anyone wishing to become a judge was required to be a Serjeant-at-law
, which Murray was not; as such, he left Lincoln's Inn
to join Serjeant's Inn
. 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
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
, 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.
, 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, and one of his first acts as Lord Chief Justice was to change the system for submitting motions
. 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
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 only allowed to submit one motion a day, and that 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
. 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, and judges from the Court of Appeal
and High Court of Justice
now only give reserved judgments in 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".
was still based on the Lex mercatoria
, a medieval series of customs and principles used to regulate trading. Other countries in Europe had reformed and modernised their law, and the result of this was that English merchant law was about a century behind the merchant 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". 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
, something completely lacking in English law. In Carter v Boehm
[1766] 3 Burr 1905
Mansfield got a chance to reform the law relating to the assumption of good faith. Carter was the Governor of Fort Marlborough (now Bengkulu
), which was built by the British East India Company
in Sumatra
, Indonesia
. 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:
In the earlier case of Pillans & Rose v Van Mierop & Hopkins
[1765] 3 Burr 1663, Mansfield had attempted to challenge the doctrine of Consideration. In English law, Consideration is a vital part of the contract; without valid consideration, almost any contract is void. However 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
in Rann v Hughes [1778] 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. He built up a special corps of these jurymen, some of whom such as Edward Vaux became noted experts on commercial law, and "Lord Mansfield's jurymen" acted as an effective liaison between the merchants and the courts. Mansfield was personally a supporter of free trade
who was heavily influenced by Roman law
and ancient Roman and Greek writers such as Cicero
and Xenophon
.
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
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
, and therefore that no works can ever be considered public domain
. 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
he was personally in favour of a perpetual copyright.
, and as a result, the press were free to print material attacking the government. 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 censorship by the government, the judiciary held a different view, and 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
, a London newspaper run by Henry Sampson Woodfall
. In them, Junius attacked many political leaders, including Lord Granby
and Mansfield. His letters were wildly popular, and 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 by Mansfield and a jury on 2 June 1770, and he was found guilty. 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. 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 sending his letters.
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. 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. Although the Attorney General
, 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.
Mansfield is best known for his judgment in Somersett's Case
on the legality of keeping slaves. The English had been involved in the slave trade since 1553, and by 1768, ships registered in Liverpool, Bristol and London carried more than half the slaves shipped in the world. James Somersett 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
. 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
, 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. In fact, following an adjournment, it was not until 7 February 1772, that the case was heard. 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. An activist layman, Granville Sharp
, who continually sought test cases against the legal justifications for slavery, was Somersett's real backer, and 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, 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
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. In actual fact, 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 "[the case] required ... [a] 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:
This was not an end to slavery, as this only abolished it in England and Wales, not in the rest of the British Empire
. As a result of Mansfield's decision between 14,000 and 15,000 slaves were immediately freed, some of whom remained with their masters as paid employees. The decision was apparently not immediately followed; Africans were still hunted and kidnapped in London, Liverpool and Bristol to be sold elsewhere, and Mansfield was so uncertain about how it would be applied that he specified in his will that his "mulatto
" great-niece Dido Elizabeth Belle
was to be considered a free woman. In addition there are advertisements from the time showing that slaves were still bought and sold in England, and Mansfield himself referred to slaves in his judgment in a later case. Although slavery was not completely abolished in the British Empire until 1834, Mansfield's decision is considered to have been a significant step in recognising the illegality of slavery.
, Mansfield agreed to act as Speaker of the House of Lords, taking up his post in February 1783. The main item of debate during the Coalition Ministry was the East India Bill, which provoked bitter arguments in both the House of Lords
and House of Commons. 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) was in December 1783.
Despite failing health, Mansfield refused to officially leave his post as Lord Chief Justice because George III
was opposed to the appointment of Mansfield's protégé Francis Buller
to the position after Mansfield resigned. The government of the time instead suggested Lloyd Kenyon
as a possible successor, and 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. This was not to be, and on 3 June, he wrote a letter of resignation effective the next day.
After his retirement, Mansfield spent the remainder of his life at Kenwood House
. Most of this time was spent maintaining the grounds, although in the summer, groups of barrister
s would visit him and inform him of the goings-on at court. On 1 August 1792 he was made Earl of Mansfield, in the County of Middlesex
. 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
of Westminster Abbey
. Mansfield left a large amount of money after his death, including land worth £26,000. He gave £2,000 to Francis Buller
. In 1801 a monument to him was made out of marble by John Flaxman
; it shows Murray flanked by the personifications of Wisdom
and Justice
, with an inscription that reads:
saw significant changes during Mansfield's career. 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 should be applied by all courts, not just the Court of Chancery
, 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 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." 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
[1765] 3 Burr 1663, and Carter v Boehm
[1766] 3 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".
He was, however, criticised for his resistance to the freedom of the press
and his refusal to go against the King, as well as for blatant nepotism
—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
described him as "more responsible for the Revolution
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
".
Opinion over Mansfield's intention in his ruling in Somerset's Case is mixed, with the current prevailing view being that he did not actually intend to free the slaves. The judgment was particularly narrow, as it only ruled 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. 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; when opening the case he wrote "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 Alan Watson
interprets, along with Murray's attempts at putting off the case by holding multiple sessions, 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 aim.
, in Parliament, and while sitting as a judge, for his eloquence and skill as a speaker; in particular Lord Chesterfield
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. 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
, 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
that "Much may be made of a [Scotsman], if he be caught young" was directed at Mansfield, and Johnson also described him as "more than a mere lawyer", while Edward Coke
, who is considered one of the most important lawyers in the history of English law, was "only a lawyer". Due to his reputation as a barrister Lincoln's Inn
offer a series of scholarship for the Bar Vocational Course named the Lord Mansfield Scholarship.
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
; 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". 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
at the time. Edward Foss
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". He has been called "the legal genius of his generation", and compared favourably with Joseph Story
, a judge of the Supreme Court of the United States
noted for his brilliance. Other Americans such as Julian S. Waterman, the founder of the University of Arkansas School of Law
, 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".
Serjeant-at-law
The Serjeants-at-Law was an order of barristers at the English bar. The position of Serjeant-at-Law , or Sergeant-Counter, was centuries old; there are writs dating to 1300 which identify them as descended from figures in France prior to the Norman Conquest...
, PC (2 March 1705 – 20 March 1793) was a British barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
, politician and judge noted for his reform of English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
. Born to Scottish nobility, he was educated in Perth, Scotland
Perth, Scotland
Perth is a town and former city and royal burgh in central Scotland. Located 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...
before moving to London at the age of 13 to take up a place at Westminster School
Westminster School
The Royal College of St. Peter in Westminster, almost always known as Westminster School, is one of Britain's leading independent schools, with the highest Oxford and Cambridge acceptance rate of any secondary school or college in Britain...
. He was accepted into Christ Church, Oxford
Christ Church, Oxford
Christ Church or house of Christ, and thus sometimes known as The House), is one of the largest constituent colleges of the University of Oxford in England...
, in May 1723, and graduated four years later. Returning to London from Oxford, he was called to the Bar by Lincoln's Inn
Lincoln's Inn
The Honourable Society of Lincoln's Inn is one of 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. Although Lincoln's Inn is able to trace its official records beyond...
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 for Boroughbridge
Boroughbridge (UK Parliament constituency)
Boroughbridge was a parliamentary borough in Yorkshire from 1553 until 1832, when it was abolished under the Great Reform Act. Throughout its existence it was represented by two Members of Parliament in the House of Commons....
, and appointment as Solicitor General
Solicitor General for England and Wales
Her Majesty's Solicitor General for England and Wales, often known as the Solicitor General, is one of the Law Officers of the Crown, and the deputy of the Attorney General, whose duty is to advise the Crown and Cabinet on the law...
. In the absence of a strong Attorney General
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
, he became the main spokesman for the government in the House of Commons, 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
Dudley Ryder (judge)
Sir Dudley Ryder was a British politician, judge and diarist.-Career:The son of a draper, Ryder studied at a dissenting academy in Hackney and the University of Edinburgh, Scotland and Leiden University in The Netherlands. He went to the Middle Temple in 1713 and was called to the Bar in 1719...
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 Lord Chief Justice, Mansfield modernised both English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
and the English courts system; he sped up the system for submitting motions
Motion (legal)
In law, a motion is a procedural device to bring a limited, contested issue before a court for decision. A motion may be thought of as a request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is...
and reformed the way judgments were given to reduce time and expense for the parties. For his work in Carter v Boehm
Carter v Boehm
Carter v Boehm 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:...
and Pillans v Van Mierop
Pillans v Van Mierop
Pillans & Rose v Van Mierop & Hopkins 3 Burr 1663 is a case concerning letters of credit, and the doctrine of consideration. It has been recommended as a landmark case in English contract law. In it, Lord Mansfield tentatively expressed a view that the doctrine of consideration was redundant...
, he has been called the founder of English commercial law. He is perhaps best known for his judgment in Somersett's Case
Somersett's Case
R v Knowles, ex parte Somersett 20 State Tr 1 is a famous judgment of the English Court of King's Bench in 1772 which held that slavery was unsupported by law in England and Wales...
, where he held that slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
was unlawful in England (although this did not end slave trafficking altogether).
Early life and education
William Murray was born on 2 March 1705, at Scone PalaceScone Palace
Scone Palace is a Category A listed historic house at Scone, Perthshire, Scotland. It was constructed in 1808 for the Earls of Mansfield by William Atkinson...
in Perthshire
Perthshire
Perthshire, officially the County of Perth , is a registration county in central Scotland. It extends from Strathmore in the east, to the Pass of Drumochter in the north, Rannoch Moor and Ben Lui in the west, and Aberfoyle in the south...
, Scotland
Kingdom of Scotland
The Kingdom of Scotland was a Sovereign state in North-West Europe that existed from 843 until 1707. It occupied the northern third of the island of Great Britain and shared a land border to the south with the Kingdom of England...
, the fourth son of the 5th Viscount of Stormont and his wife, Margaret, née
NEE
NEE is a political protest group whose goal was to provide an alternative for voters who are unhappy with all political parties at hand in Belgium, where voting is compulsory.The NEE party was founded in 2005 in Antwerp...
Scott, and one of eleven children. Both his parents were strong supporters of the Jacobite
Jacobitism
Jacobitism was the political movement in Britain dedicated to the restoration of the Stuart kings to the thrones of England, Scotland, later the Kingdom of Great Britain, and the Kingdom of Ireland...
cause, and his older brother James
James Murray (Jacobite)
James Murray, Earl of Dunbar was a Jacobite.-Family:He was the second child of David Murray, 5th Viscount of Stormont and Majory Scott. His brothers included David Murray, 6th Viscount of Stormont and the First Earl of Mansfield.-Life:...
followed "The Old Pretender
James Francis Edward Stuart
James Francis Edward, Prince of Wales was the son of the deposed James II of England...
" into exile. The Jacobite sympathies of Murray's family were glossed over by contemporaries, who even claimed that he had been educated at Lichfield Grammar School
King Edward VI School (Lichfield)
King Edward VI School, Lichfield is a co-educational comprehensive school near the heart of the city of Lichfield, Staffordshire, England. The school is a co-educational comprehensive school maintained by Staffordshire Education Authority and admits pupils from the age of 11 , with some 60%...
with many other members of the English judiciary. This was incorrect, and Murray was in fact educated at Perth Grammar School
Perth Grammar School
Perth Grammar School is a secondary school in Perth, Scotland. It is located in the Muirton district of Perth at the junction of Bute Drive and Gowans Terrace...
, where he was taught Latin, 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. While at Perth Grammar School, it became apparent that Murray was particularly intelligent, and in 1718, his father and older brother James
James Murray (Jacobite)
James Murray, Earl of Dunbar was a Jacobite.-Family:He was the second child of David Murray, 5th Viscount of Stormont and Majory Scott. His brothers included David Murray, 6th Viscount of Stormont and the First Earl of Mansfield.-Life:...
decided to send him to Westminster School
Westminster School
The Royal College of St. Peter in Westminster, almost always known as Westminster School, is one of Britain's leading independent schools, with the highest Oxford and Cambridge acceptance rate of any secondary school or college in Britain...
, as James knew the Dean, Francis Atterbury
Francis Atterbury
Francis Atterbury was an English man of letters, politician and bishop.-Early life:He was born at Milton Keynes in Buckinghamshire, where his father was rector. He was educated at Westminster School and Christ Church, Oxford, where he became a tutor...
. The distance from Perth to London was around 400 miles (643.7 km), and the journey took Murray 54 days. Murray flourished at Westminster, and was made a King's Scholar
King's Scholar
A King's Scholar is a foundation scholar of one of certain public schools...
on 21 May 1719.
After an examination in May 1723, Murray was accepted into Christ Church, Oxford
Christ Church, Oxford
Christ Church or house of Christ, and thus sometimes known as The House), is one of the largest constituent colleges of the University of Oxford in England...
, having scored higher in the examination than any other King's Scholar that year. He was admitted as a commoner
Commoner
In British law, a commoner is someone who is neither the Sovereign nor a peer. Therefore, any member of the Royal Family who is not a peer, such as Prince Harry of Wales or Anne, Princess Royal, is a commoner, as is any member of a peer's family, including someone who holds only a courtesy title,...
on 15 June 1723, and matriculated
Matriculation
Matriculation, in the broadest sense, means to be registered or added to a list, from the Latin matricula – little list. In Scottish heraldry, for instance, a matriculation is a registration of armorial bearings...
on 18 June; the records say that he came from Bath rather than Perth, because the person recording the names of the new students was unable to understand his Scottish accent. James was a barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
in Scotland, and his family decided that a career as a barrister was best for Murray. The Scottish Bar
Bar association
A bar association is a professional body of lawyers. Some bar associations are responsible for the regulation of the legal profession in their jurisdiction; others are professional organizations dedicated to serving their members; in many cases, they are both...
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. Thanks to the patronage of Thomas Foley, 1st Baron Foley
Thomas Foley, 1st Baron Foley (1673–1733)
Thomas Foley, 1st Baron Foley was the eldest son of Thomas Foley and inherited the Great Witley estate on his father's death...
, 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
Lincoln's Inn
The Honourable Society of Lincoln's Inn is one of 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. Although Lincoln's Inn is able to trace its official records beyond...
on 23 April 1724.
After George I
George I of Great Britain
George I was King of Great Britain and Ireland from 1 August 1714 until his death, and ruler of the Duchy and Electorate of Brunswick-Lüneburg in the Holy Roman Empire from 1698....
died on 11 June 1727, Murray entered and won a competition to write a Latin poem titled "The Death of the King". His actions were seen as a show of support for the House of Hanover
House of Hanover
The House of Hanover is a deposed German royal dynasty which has ruled the Duchy of Brunswick-Lüneburg , the Kingdom of Hanover, the Kingdom of Great Britain, the Kingdom of Ireland and the United Kingdom of Great Britain and Ireland...
and the political status quo
Status quo
Statu quo, a commonly used form of the original Latin "statu quo" – literally "the state in which" – is a Latin term meaning the current or existing state of affairs. To maintain the status quo is to keep the things the way they presently are...
, something odd considering the strong Jacobite
Jacobitism
Jacobitism was the political movement in Britain dedicated to the restoration of the Stuart kings to the thrones of England, Scotland, later the Kingdom of Great Britain, and the Kingdom of Ireland...
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
William Pitt, 1st Earl of Chatham
William Pitt, 1st Earl of Chatham PC was a British Whig statesman who led Britain during the Seven Years' War...
, who was a constant rival to Murray until Pitt's death in 1778. 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
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
. He also became fluent in Latin, translating Cicero
Cicero
Marcus Tullius Cicero , was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He came from a wealthy municipal family of the equestrian order, and is widely considered one of Rome's greatest orators and prose stylists.He introduced the Romans to the chief...
's works into English and then back into Latin. He gained his Bachelor of Arts
Bachelor of Arts
A Bachelor of Arts , from the Latin artium baccalaureus, is a bachelor's degree awarded for an undergraduate course or program in either the liberal arts, the sciences, or both...
degree in 1727, and travelled to London to train as a barrister.
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. 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 chambersChambers (law)
A judge's chambers, often just called his or her chambers, is the office of a judge.Chambers may also refer to the type of courtroom where motions related to matter of procedure are heard.- United Kingdom and Commonwealth :...
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 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. Thus, most of Murray's practical training came from reading the papers in Hamilton's chambers and listening to Lord Raymond
Robert Raymond, 1st Baron Raymond
Robert Raymond, 1st Baron Raymond PC was a British judge.Robert Raymond was the son of the judge Thomas Raymond. He was educated at Eton and Christ's College, Cambridge. Said to have been admitted to Gray's Inn aged nine, he became a barrister in 1697 and was admitted at Lincoln's Inn in 1710...
speak in court, along with tutoring by Thomas Denison on how to write special pleadings
Special pleader
A special pleader was a historial legal occupation. The practitioner, or "special pleader" in English law specialised in drafting "pleadings", in modern terminology statements of case.-History:...
. Murray also studied various texts, including the French Ordinance de la Marine (a predecessor to the Napoleonic Commercial Code
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
), the works of Bracton
Henry de Bracton
Henry of Bracton, also Henry de Bracton, also Henrici Bracton, or Henry Bratton also Henry Bretton was an English jurist....
and Littleton
Thomas de Littleton
Sir Thomas de Littleton was an English judge and legal writer.-Early life:He was born, it is supposed, at Frankley Manor House, Worcestershire, England in about 1407. Littleton’s surname was that of his mother, who was the sole daughter and heiress of Thomas de Littleton, Lord of Frankley. She...
and "crabbed and uncouth compositions" on municipal law
Municipal law
Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels...
.
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
Alexander Pope was an 18th-century English poet, best known for his satirical verse and for his translation of Homer. He is the third-most frequently quoted writer in The Oxford Dictionary of Quotations, after Shakespeare and Tennyson...
around this time, and through his friendship with Pope met members of the aristocracy, some of whom later became his clients, including Sarah Churchill, Duchess of Marlborough
Sarah Churchill, Duchess of Marlborough
Sarah Churchill , Duchess of Marlborough rose to be one of the most influential women in British history as a result of her close friendship with Queen Anne of Great Britain.Sarah's friendship and influence with Princess Anne was widely known, and leading public figures...
. Pope also taught him oratory, 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
Philip Yorke, 1st Earl of Hardwicke
Philip Yorke, 1st Earl of Hardwicke PC was an English lawyer and politician who served as Lord Chancellor. He was a close confidant of the Duke of Newcastle, Prime Minister between 1754 and 1756 and 1757 until 1762....
. The support of Talbot and Yorke allowed him to gain a respectable practice in the Court of Chancery
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 the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
.
The 1707 Acts of Union
Acts of Union 1707
The Acts of Union were two Parliamentary Acts - the Union with Scotland Act passed in 1706 by the Parliament of England, and the Union with England Act passed in 1707 by the Parliament of Scotland - which put into effect the terms of the Treaty of Union that had been agreed on 22 July 1706,...
had merged the Kingdom of England
Kingdom of England
The Kingdom of England was, from 927 to 1707, a sovereign state to the northwest of continental Europe. At its height, the Kingdom of England spanned the southern two-thirds of the island of Great Britain and several smaller outlying islands; what today comprises the legal jurisdiction of England...
and Kingdom of Scotland
Kingdom of Scotland
The Kingdom of Scotland was a Sovereign state in North-West Europe that existed from 843 until 1707. It occupied the northern third of the island of Great Britain and shared a land border to the south with the Kingdom of England...
into one national entity, but they retained separate legal systems. However, the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
became the highest court of appeal in both English and Scottish law, and as a result, 1707 Scottish cases on appeal from the Court of Session were sent there. To deal with these cases, a barrister had to be familiar with both Scottish and English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, and Murray found his niche, acting in Scottish cases in the House of Lords as early as 1733. His work in Moncrieff v Moncrieff in 1734 established Murray as a brilliant young barrister praised for his performance by Lords Cowper
William Cowper, 1st Earl Cowper
William Cowper, 1st Earl Cowper PC KC FRS was an English politician who became the first Lord Chancellor of Great Britain. Cowper was the son of Sir William Cowper, 2nd Baronet, of Ratling Court, Kent, a Whig member of parliament of some mark in the two last Stuart reigns...
and Parker
Thomas Parker, 1st Earl of Macclesfield
Thomas Parker, 1st Earl of Macclesfield PC, FRS was an English Whig politician.-Youth and early career:He was born in Staffordshire, the son of Thomas Parker, an attorney at Leek. He was educated at Adams' Grammar School and Trinity College, Cambridge...
. 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.
Captain John Porteous
Captain John Porteous, was a Scottish soldier, Captain of the City Guard of Edinburgh .-Early life:John Porteous was born at The Glen, Quair Water, near Traquair, in the Borders, the son of Stephen Porteous, a tailor of the Canongate, Edinburgh. Little is known of his early life, except that he...
. 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. 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 that sought to punish the City of Edinburgh for the behaviour of its citizens by disenfranchising
Disfranchisement
Disfranchisement is the revocation of the right of suffrage of a person or group of people, or rendering a person's vote less effective, or ineffective...
the city. Murray represented the City in both the House of Commons and the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
, and eventually whittled down the bill so much that by the time it was voted on it was simply a proposal to fine the city and disqualify the Provost
Provost (civil)
A provost is the ceremonial head of many Scottish local authorities, and under the name prévôt was a governmental position of varying importance in Ancien Regime France.-History:...
. In exchange for his work the citizens of Edinburgh gave him the Freedom of the City
Freedom of the City
Freedom of the City is an honour bestowed by some municipalities in Australia, Canada, Ireland, France, Italy, New Zealand, South Africa, Spain, the United Kingdom, Gibraltar and Rhodesia to esteemed members of its community and to organisations to be honoured, often for service to the community;...
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
Daniel Finch, 2nd Earl of Nottingham
Daniel Finch, 2nd Earl of Nottingham, 7th Earl of Winchilsea PC , was an English Tory statesman during the late seventeenth and early eighteenth centuries.-Early life:...
, at Raby Castle
Raby Castle
Raby Castle is situated near Staindrop in County Durham and is one of the largest inhabited castles in England. The Grade I listed building has opulent eighteenth and nineteenth century interiors inside a largely unchanged, late medieval shell. It is the home and seat of John Vane, 11th Baron...
in Durham
Durham
Durham is a city in north east England. It is within the County Durham local government district, and is the county town of the larger ceremonial county...
. Her sister Mary was married to Thomas Watson-Wentworth, 1st Marquess of Rockingham
Thomas Watson-Wentworth, 1st Marquess of Rockingham
Thomas Watson-Wentworth, 1st Marquess of Rockingham, KB, PC was a British peer and Whig politician.Watson-Wentworth was the only son and heir of Hon...
, and Murray's connection with the Marquess was to have a significant impact 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, saying he had no interest in politics. In 1742, however, the government of Sir Robert WalpoleRobert Walpole
Robert Walpole, 1st Earl of Orford, KG, KB, PC , known before 1742 as Sir Robert Walpole, was a British statesman who is generally regarded as having been the first Prime Minister of Great Britain....
fell, and Murray's brother-in-law, the Earl of Nottingham
Daniel Finch, 8th Earl of Winchilsea
Daniel Finch, 8th Earl of Winchilsea and 3rd Earl of Nottingham, KG, PC was a British politician. Styled Lord Finch until 1730, he was the eldest son of Daniel Finch, 2nd Earl of Nottingham and his second wife Anne Hatton, daughter of Christopher Hatton, 1st Viscount Hatton...
, became First Lord of the Admiralty in the new Cabinet
Cabinet (government)
A Cabinet is a body of high ranking government officials, typically representing the executive branch. It can also sometimes be referred to as the Council of Ministers, an Executive Council, or an Executive Committee.- Overview :...
. With this added political influence, Murray hoped to be appointed to a government office, and when Sir John Strange
John Strange (English politician)
Sir John Strange KC PC was a British politician and judge. He was born to another John Strange and his second wife, Mary Plaistowe. He became a student at the Middle Temple on 11 July 1712 before starting a pupillage at the chambers of Charles Salkeld, who trained Lord Hardwicke. He was called to...
resigned as Solicitor General
Solicitor General for England and Wales
Her Majesty's Solicitor General for England and Wales, often known as the Solicitor General, is one of the Law Officers of the Crown, and the deputy of the Attorney General, whose duty is to advise the Crown and Cabinet on the law...
, Murray was made a Member of Parliament for Boroughbridge
Boroughbridge (UK Parliament constituency)
Boroughbridge was a parliamentary borough in Yorkshire from 1553 until 1832, when it was abolished under the Great Reform Act. Throughout its existence it was represented by two Members of Parliament in the House of Commons....
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
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
, and by custom, the Attorney General was allowed to become Lord Chief Justice of the King's Bench 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
Electorate of Hanover
The Electorate of Brunswick-Lüneburg was the ninth Electorate of the Holy Roman Empire of the German Nation...
troops to help fight in the War of the Austrian Succession
War of the Austrian Succession
The War of the Austrian Succession – including King George's War in North America, the Anglo-Spanish War of Jenkins' Ear, and two of the three Silesian wars – involved most of the powers of Europe over the question of Maria Theresa's succession to the realms of the House of Habsburg.The...
. 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
George II of Great Britain
George II was King of Great Britain and Ireland, Duke of Brunswick-Lüneburg and Archtreasurer and Prince-elector of the Holy Roman Empire from 11 June 1727 until his death.George was the last British monarch born outside Great Britain. He was born and brought up in Northern Germany...
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
Philip Yorke, 1st Earl of Hardwicke PC was an English lawyer and politician who served as Lord Chancellor. He was a close confidant of the Duke of Newcastle, Prime Minister between 1754 and 1756 and 1757 until 1762....
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
Prussia was a German kingdom and historic state originating out of the Duchy of Prussia and the Margraviate of Brandenburg. For centuries, the House of Hohenzollern ruled Prussia, successfully expanding its size by way of an unusually well-organized and effective army. Prussia shaped the history...
to frustrate neutral shipping, which Lord Stowell
William Scott, 1st Baron Stowell
William Scott, 1st Baron Stowell was an English judge and jurist.-Background and education:Scott was born at Heworth, a village about four miles from Newcastle upon Tyne, the son of a coalfitter . His younger brother John Scott became Lord Chancellor and was made Earl of Eldon...
called "the foundation of the modern law of neutrality", and Montesquieu
Charles de Secondat, baron de Montesquieu
Charles-Louis de Secondat, baron de La Brède et de Montesquieu , generally referred to as simply Montesquieu, was a French social commentator and political thinker who lived during the Enlightenment...
described it as a "résponse sans éplique" (response without a reply).
The death of Frederick
Frederick, Prince of Wales
Frederick, Prince of Wales was a member of the House of Hanover and therefore of the Hanoverian and later British Royal Family, the eldest son of George II and father of George III, as well as the great-grandfather of Queen Victoria...
, 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, as Regent (since the heir apparent, George III
George III of the United Kingdom
George III was King of Great Britain and King of Ireland from 25 October 1760 until the union of these two countries on 1 January 1801, after which he was King of the United Kingdom of Great Britain and Ireland until his death...
, was only a child), while the public favoured the child's mother Princess Augusta
Princess Augusta of Saxe-Gotha
Princess Augusta of Saxe-Gotha-Altenburg was Princess of Wales between 1736 and 1751, and Dowager Princess of Wales thereafter. She was one of only three Princesses of Wales who never became queen consort...
. 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
Henry Pelham
Henry Pelham was a British Whig statesman, who served as Prime Minister of Great Britain from 27 August 1743 until his death in 1754...
died, and this necessitated a Cabinet
Cabinet (government)
A Cabinet is a body of high ranking government officials, typically representing the executive branch. It can also sometimes be referred to as the Council of Ministers, an Executive Council, or an Executive Committee.- Overview :...
reshuffle. The Attorney General
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
, Sir Dudley Ryder
Dudley Ryder (judge)
Sir Dudley Ryder was a British politician, judge and diarist.-Career:The son of a draper, Ryder studied at a dissenting academy in Hackney and the University of Edinburgh, Scotland and Leiden University in The Netherlands. He went to the Middle Temple in 1713 and was called to the Bar in 1719...
, became Lord Chief Justice of the King's Bench, and Murray became Attorney General in his place. A few months later the Master of the Rolls
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 second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
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. In an attempt to persuade him to stay, the new Prime Minister, the Duke of Newcastle
Thomas Pelham-Holles, 1st Duke of Newcastle-upon-Tyne
Thomas Pelham-Holles, 1st Duke of Newcastle-upon-Tyne and 1st Duke of Newcastle-under-Lyne, KG, PC was a British Whig statesman, whose official life extended throughout the Whig supremacy of the 18th century. He is commonly known as the Duke of Newcastle.A protégé of Sir Robert Walpole, he served...
offered him the Duchy of Lancaster
Duchy of Lancaster
The Duchy of Lancaster is one of the two royal duchies in England, the other being the Duchy of Cornwall. It is held in trust for the Sovereign, and is used to provide income for the use of the British monarch...
, 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
Peerage
The Peerage is a legal system of largely hereditary titles in the United Kingdom, which constitute the ranks of British nobility and is part of the British honours system...
. 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. 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
James Francis Edward, Prince of Wales was the son of the deposed James II of England...
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
William Pitt, 1st Earl of Chatham
William Pitt, 1st Earl of Chatham PC was a British Whig statesman who led Britain during the Seven Years' War...
highlighted his unsuitability for politics - unlike other politicians such as Philip Yorke
Philip Yorke, 1st Earl of Hardwicke
Philip Yorke, 1st Earl of Hardwicke PC was an English lawyer and politician who served as Lord Chancellor. He was a close confidant of the Duke of Newcastle, Prime Minister between 1754 and 1756 and 1757 until 1762....
and Edward Thurlow
Edward Thurlow, 1st Baron Thurlow
Edward Thurlow, 1st Baron Thurlow PC, KC was a British lawyer and Tory politician. He served as Lord Chancellor of Great Britain for fourteen years and under four Prime Ministers.- Early life:...
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
Prime Minister of the United Kingdom
The Prime Minister of the United Kingdom of Great Britain and Northern Ireland is the Head of Her Majesty's Government in the United Kingdom. The Prime Minister and Cabinet are collectively accountable for their policies and actions to the Sovereign, to Parliament, to their political party and...
after the death of Henry Pelham
Henry Pelham
Henry Pelham was a British Whig statesman, who served as Prime Minister of Great Britain from 27 August 1743 until his death in 1754...
, but it would have "set [his genius] in a false environment", and he declined all opportunities to return to politics except as Lord Chief Justice.
Lord Chief Justice
Serjeant-at-law
The Serjeants-at-Law was an order of barristers at the English bar. The position of Serjeant-at-Law , or Sergeant-Counter, was centuries old; there are writs dating to 1300 which identify them as descended from figures in France prior to the Norman Conquest...
, which Murray was not; as such, he left Lincoln's Inn
Lincoln's Inn
The Honourable Society of Lincoln's Inn is one of 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. Although Lincoln's Inn is able to trace its official records beyond...
to join Serjeant's Inn
Serjeant's Inn
Serjeant's Inn was one of the two inns of the Serjeants-at-Law in London. The Fleet Street inn dated from 1443 and the Chancery Lane inn dated from 1416. Both buildings were destroyed in the World War II 1941 bombing raids....
. 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
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
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
Chancellor of the Exchequer
The Chancellor of the Exchequer is the title held by the British Cabinet minister who is responsible for all economic and financial matters. Often simply called the Chancellor, the office-holder controls HM Treasury and plays a role akin to the posts of Minister of Finance or Secretary of the...
, 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 EnglandNorman conquest of England
The Norman conquest of England began on 28 September 1066 with the invasion of England by William, Duke of Normandy. William became known as William the Conqueror after his victory at the Battle of Hastings on 14 October 1066, defeating King Harold II of England...
, 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, and one of his first acts as Lord Chief Justice was to change the system for submitting motions
Motion (legal)
In law, a motion is a procedural device to bring a limited, contested issue before a court for decision. A motion may be thought of as a request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is...
. 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
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
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 only allowed to submit one motion a day, and that 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 decision
Reserved decision is a legal term. After the hearing of a trial or the argument of a motion a judge may not immediately deliver a decision, but instead take time to review evidence and the law and deliver a decision at a later time, usually in a written form....
. 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, and judges from the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
and High Court of Justice
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
now only give reserved judgments in 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
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
, which was described as the "sleepy hollow".
Mercantile law changes
In the eighteenth century, English merchant lawCommercial law
Commercial law is the body of law that governs business and commercial transactions...
was still based on the Lex mercatoria
Lex mercatoria
Lex mercatoria is the body of commercial law used by merchants throughout Europe during the medieval period. It evolved similar to English common law as a system of custom and best practice, which was enforced through a system of merchant courts along the main trade routes. It functioned as the...
, a medieval series of customs and principles used to regulate trading. Other countries in Europe had reformed and modernised their law, and the result of this was that English merchant law was about a century behind the merchant 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". 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
Uberrima fides is a Latin phrase meaning "utmost good faith" . It is the name of a legal doctrine which governs insurance contracts. This means that all parties to an insurance contract must deal in good faith, making a full declaration of all material facts in the insurance proposal...
, something completely lacking in English law. In Carter v Boehm
Carter v Boehm
Carter v Boehm 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:...
[1766] 3 Burr 1905
Oxford Standard for Citation Of Legal Authorities
The or OSCOLA is the modern method of legal citation in the United Kingdom. First developed by Peter Birks of the University of Oxford Faculty of Law, and now in its 4th edition, it has been adopted by most law schools and publishers in the United Kingdom as well as the courts.-Cases:Cases are to...
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
Bengkulu is a province of Indonesia. It is on the southwest coast of the island of Sumatra, and borders the provinces of West Sumatra, Jambi, South Sumatra and Lampung. The capital and largest city is Bengkulu city. It was formerly the site of a British garrison, which they called Bencoolen...
), which was built by the British East India Company
British East India Company
The East India Company was an early English joint-stock company that was formed initially for pursuing trade with the East Indies, but that ended up trading mainly with the Indian subcontinent and China...
in Sumatra
Sumatra
Sumatra is an island in western Indonesia, westernmost of the Sunda Islands. It is the largest island entirely in Indonesia , and the sixth largest island in the world at 473,481 km2 with a population of 50,365,538...
, Indonesia
Indonesia
Indonesia , officially the Republic of Indonesia , is a country in Southeast Asia and Oceania. Indonesia is an archipelago comprising approximately 13,000 islands. It has 33 provinces with over 238 million people, and is the world's fourth most populous country. Indonesia is a republic, with an...
. 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:
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. This is because 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.
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.
In the earlier case of Pillans & Rose v Van Mierop & Hopkins
Pillans v Van Mierop
Pillans & Rose v Van Mierop & Hopkins 3 Burr 1663 is a case concerning letters of credit, and the doctrine of consideration. It has been recommended as a landmark case in English contract law. In it, Lord Mansfield tentatively expressed a view that the doctrine of consideration was redundant...
[1765] 3 Burr 1663, Mansfield had attempted to challenge the doctrine of Consideration. In English law, Consideration is a vital part of the contract; without valid consideration, almost any contract is void. However 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
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
in Rann v Hughes [1778] 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. He built up a special corps of these jurymen, some of whom such as Edward Vaux became noted experts on commercial law, and "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
Under a free trade policy, prices emerge from supply and demand, and are the sole determinant of resource allocation. 'Free' trade differs from other forms of trade policy where the allocation of goods and services among trading countries are determined by price strategies that may differ from...
who was heavily influenced by Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
and ancient Roman and Greek writers such as Cicero
Cicero
Marcus Tullius Cicero , was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He came from a wealthy municipal family of the equestrian order, and is widely considered one of Rome's greatest orators and prose stylists.He introduced the Romans to the chief...
and Xenophon
Xenophon
Xenophon , son of Gryllus, of the deme Erchia of Athens, also known as Xenophon of Athens, was a Greek historian, soldier, mercenary, philosopher and a contemporary and admirer of Socrates...
.
Copyright law
Mansfield made another notable judgment in Millar v Taylor [1769] KB, in relation to copyright law. Andrew MillarAndrew Millar
Andrew Millar was a British publisher.About 1729, he started business as a bookseller and publisher in the Strand, London. His own judgment in literary matters was small, but he collected an excellent staff of literary advisers, and did not hesitate to pay what at the time were considered large...
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
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
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
Common law copyright is the legal doctrine which contends that copyright is a natural right and creators are therefore entitled to the same protections anyone would be in regard to tangible and real property...
, and therefore that no works can ever be considered public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
. 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
William Blackstone
Sir William Blackstone KC SL 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 London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
he was personally in favour of a perpetual copyright.
Junius
In 1695 Parliament failed to renew the Licensing ActsLicensing Order of 1643
The Licensing Order of 1643 instituted pre-publication censorship upon Parliamentary England. Milton's Areopagitica was written specifically against this Act.-Abolition of the Star Chamber:...
, and as a result, the press were free to print material attacking the government. 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 censorship by the government, the judiciary held a different view, and regularly tried people for seditious libel
Seditious libel
Seditious libel was a criminal offence under English common law. Sedition is the offence of speaking seditious words with seditious intent: if the statement is in writing or some other permanent form it is seditious libel...
if they printed material attacking the government. From 21 November 1768, letters written by a man under the pseudonym of Junius
Junius
Junius was the pseudonym of a writer who contributed a series of letters to the Public Advertiser, from 21 January 1769 to 21 January 1772. The signature had been already used, apparently by him, in a letter of 21 November 1768...
were published in the Public Advertiser
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 of adverts. It was taken over by its printer, Henry Woodfall, and...
, a London newspaper run by Henry Sampson Woodfall
Henry Sampson Woodfall
Henry Sampson Woodfall was an English printer and journalist. He was born and lived in London.His father, Henrsamsll s the printer of the newspaper the Public Advertiser, and the author of the ballad Darby and Joan, for which his son's employer, John Darby, and his wife, were the originals...
. In them, Junius attacked many political leaders, including Lord Granby
John Manners, Marquess of Granby
General John Manners, Marquess of Granby PC, , British soldier, was the eldest son of the 3rd Duke of Rutland. As he did not outlive his father, he was known by his father's subsidiary title, Marquess of Granby...
and Mansfield. His letters were wildly popular, and 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
John Almon
John Almon was an English journalist and writer on political subjects, notable for his efforts to secure the right to publish reports on the debates in Parliament....
for selling them, and John Miller for republishing them. Almon's case was heard at Westminster Hall by Mansfield and a jury on 2 June 1770, and he was found guilty. 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. 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 sending his letters.
On 14 November 1770, a letter by Junius directed at Mansfield was published by the Public Advertiser and the London Evening Post
London Evening Post
The London Evening Post was a pro-Jacobite Tory English newspaper published in Great Britain from 1727 until 1797....
, a newspaper run by John Miller. In it, Junius attacked Mansfield, first for being Scottish, then for being a lapsed Jacobite
Jacobitism
Jacobitism was the political movement in Britain dedicated to the restoration of the Stuart kings to the thrones of England, Scotland, later the Kingdom of Great Britain, and the Kingdom of Ireland...
, and finally for attempting to suppress the freedom of the press. Although the Attorney General
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
, William de Grey
William de Grey, 1st Baron Walsingham
William de Grey, 1st Baron Walsingham KC was a British lawyer, judge and politician. He served as Lord Chief Justice of the Common Pleas between 1771 and 1780....
, 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
Somersett's Case
R v Knowles, ex parte Somersett 20 State Tr 1 is a famous judgment of the English Court of King's Bench in 1772 which held that slavery was unsupported by law in England and Wales...
on the legality of keeping slaves. The English had been involved in the slave trade since 1553, and by 1768, ships registered in Liverpool, Bristol and London carried more than half the slaves shipped in the world. James Somersett was a slave owned by Charles Stewart
Charles Stewart (customs official)
Charles Stewart was a Scottish-born American merchant and customs officer who was involved in the Somersett Case which effectively led to the outlawing of slavery in Britain in 1772.-Early career:...
, 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
Jamaica
Jamaica is an island nation of the Greater Antilles, in length, up to in width and 10,990 square kilometres in area. It is situated in the Caribbean Sea, about south of Cuba, and west of Hispaniola, the island harbouring the nation-states Haiti and the Dominican Republic...
. 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
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
, 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. In fact, following an adjournment, it was not until 7 February 1772, that the case was heard. 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. An activist layman, Granville Sharp
Granville Sharp
Granville Sharp was one of the first English 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 blacks in Sierra Leone, and founded the St. George's Bay Company, a forerunner of the Sierra...
, who continually sought test cases against the legal justifications for slavery, was Somersett's real backer, and 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
Serjeant-at-law
The Serjeants-at-Law was an order of barristers at the English bar. The position of Serjeant-at-Law , or Sergeant-Counter, was centuries old; there are writs dating to 1300 which identify them as descended from figures in France prior to the Norman Conquest...
, John Glynn
John Glynn
John Glynn SL of Glynn was an English lawyer and Member of Parliament. Glynn was born to an ancient family of Cornish gentry. He inherited his father's estate in Glynn, Cornwall upon the deaths of his elder brother and his nephew....
SL, James Mansfield
James Mansfield
Sir James Mansfield , SL, KC was a British lawyer, judge and politician. He was twice Solicitor General and served as Chief Justice of the Common Pleas from 1799 to 1814.-Early life and career:...
and Francis Hargrave
Francis Hargrave
Francis Hargrave was an English lawyer and antiquary. He was the most prominent of the five advocates who appeared on behalf of James Somersett in the case which determined, in 1772, the legal status of slaves in England...
, who was later to become a noted barrister based on his work in this case. Charles Stewart was represented by John Dunning
John Dunning, 1st Baron Ashburton
John Dunning, 1st Baron Ashburton was an English lawyer and politician.He was first noticed in English politics when he wrote a notice in 1762 defending the British East India Company merchants against their Dutch rivals. He was a Member of Parliament from 1768 onward...
and James Wallace
James Wallace (politician)
James Wallace was an English barrister, Member of Parliament, Solicitor General and Attorney General.-Life:The son of Thomas Wallace, of Asholme, Northumberland, attorney-at-law, Wallace was called to the Bar in 1757. In 1770, he was elected as one of the Members of Parliament for Horsham in Sussex...
.
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
Parliament of Great Britain
The Parliament of Great Britain was formed in 1707 following the ratification of the Acts of Union by both the Parliament of England and Parliament of Scotland...
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. In actual fact, 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 "[the case] required ... [a] 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, 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.
This was not an end to slavery, as this only abolished it in England and Wales, not in the rest of the British Empire
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
. As a result of Mansfield's decision between 14,000 and 15,000 slaves were immediately freed, some of whom remained with their masters as paid employees. The decision was apparently not immediately followed; Africans were still hunted and kidnapped in London, Liverpool and Bristol to be sold elsewhere, and Mansfield was so uncertain about how it would be applied that he specified in his will that his "mulatto
Mulatto
Mulatto denotes a person with one white parent and one black parent, or more broadly, a person of mixed black and white ancestry. Contemporary usage of the term varies greatly, and the broader sense of the term makes its application rather subjective, as not all people of mixed white and black...
" great-niece Dido Elizabeth Belle
Dido Elizabeth Belle
Dido Elizabeth Belle was an illegitimate daughter of John Lindsay and an African slave woman known only as Belle. Very little is known about Belle only that she was black and a slave. Her daughter Dido lived in the household of the Earl of Mansfield who was her father's Uncle and her...
was to be considered a free woman. In addition there are advertisements from the time showing that slaves were still bought and sold in England, and Mansfield himself referred to slaves in his judgment in a later case. Although slavery was not completely abolished in the British Empire until 1834, Mansfield's decision is considered to have been a significant step in recognising the illegality of slavery.
House of Lords
After the formation of the Fox-North CoalitionFox-North Coalition
The Fox-North Coalition was a government in Great Britain that held office during 1783. As the name suggests, the ministry was a coalition of the groups supporting Charles James Fox and Lord North...
, Mansfield agreed to act as Speaker of the House of Lords, taking up his post in February 1783. The main item of debate during the Coalition Ministry was the East India Bill, which provoked bitter arguments in both the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
and House of Commons. 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
Woolsack
The Woolsack is the seat of the Lord Speaker in the House of Lords, the Upper House of the Parliament of the United Kingdom. From the Middle Ages until 2006, the presiding officer in the House of Lords was the Lord Chancellor and the Woolsack was usually mentioned in association with the office of...
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) was in December 1783.
Retirement
George III of the United Kingdom
George III was King of Great Britain and King of Ireland from 25 October 1760 until the union of these two countries on 1 January 1801, after which he was King of the United Kingdom of Great Britain and Ireland until his death...
was opposed to the appointment of Mansfield's protégé Francis Buller
Sir Francis Buller, 1st Baronet
Sir Francis Buller, 1st Baronet was an English judge.-Life:Buller was born at Downes House in Devon, the son of James Buller, Member of Parliament for Cornwall, and his wife Lady Jane, daughter of Allen Bathurst, 1st Earl Bathurst. He was educated at the King's School, Ottery St Mary, and...
to the position after Mansfield resigned. The government of the time instead suggested Lloyd Kenyon
Lloyd Kenyon, 1st Baron Kenyon
Lloyd Kenyon, 1st Baron Kenyon, PC, SL, KC was a British politician and barrister, who served as Attorney General, Master of the Rolls and Lord Chief Justice. Born to a country gentleman, he was initially educated in Hanmer before moving to Ruthin School aged 12...
as a possible successor, and 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. This was not to be, and on 3 June, he wrote a letter of resignation effective the next day.
After his retirement, Mansfield spent the remainder of his life at Kenwood House
Kenwood House
Kenwood House is a former stately home, in Hampstead, London, on the northern boundary of Hampstead Heath. It is managed by English Heritage.-History:...
. Most of this time was spent maintaining the grounds, although in the summer, groups of barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s would visit him and inform him of the goings-on at court. On 1 August 1792 he was made Earl of Mansfield, in the County of Middlesex
Middlesex
Middlesex is one of the historic counties of England and the second smallest by area. The low-lying county contained the wealthy and politically independent City of London on its southern boundary and was dominated by it from a very early time...
. 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
Transept
For the periodical go to The Transept.A transept is a transverse section, of any building, which lies across the main body of the building. In Christian churches, a transept is an area set crosswise to the nave in a cruciform building in Romanesque and Gothic Christian church architecture...
of Westminster Abbey
Westminster Abbey
The Collegiate Church of St Peter at Westminster, popularly known as Westminster Abbey, is a large, mainly Gothic church, in the City of Westminster, London, United Kingdom, located just to the west of the Palace of Westminster. It is the traditional place of coronation and burial site for English,...
. Mansfield left a large amount of money after his death, including land worth £26,000. He gave £2,000 to Francis Buller
Sir Francis Buller, 1st Baronet
Sir Francis Buller, 1st Baronet was an English judge.-Life:Buller was born at Downes House in Devon, the son of James Buller, Member of Parliament for Cornwall, and his wife Lady Jane, daughter of Allen Bathurst, 1st Earl Bathurst. He was educated at the King's School, Ottery St Mary, and...
. In 1801 a monument to him was made out of marble by John Flaxman
John Flaxman
John Flaxman was an English sculptor and draughtsman.-Early life:He was born in York. His father was also named John, after an ancestor who, according to family tradition, had fought for Parliament at the Battle of Naseby, and afterwards settled as a carrier or farmer in Buckinghamshire...
; it shows Murray flanked by the personifications of Wisdom
Wisdom
Wisdom is a deep understanding and realization of people, things, events or situations, resulting in the ability to apply perceptions, judgements and actions in keeping with this understanding. It often requires control of one's emotional reactions so that universal principles, reason and...
and Justice
Lady Justice
Lady Justice |Dike]]) is an allegorical personification of the moral force in judicial systems.-Depiction:The personification of justice balancing the scales of truth and fairness dates back to the Goddess Maat, and later Isis, of ancient Egypt. The Hellenic deities Themis and Dike were later...
, with an inscription that reads:
Legacy
English lawEnglish law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
saw significant changes during Mansfield's career. 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 should be applied by all courts, not just the Court of Chancery
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 the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
, a view that provoked much disagreement during his lifetime, but was eventually confirmed by Parliament in the Supreme Court of Judicature Act 1873
Supreme Court of Judicature Act 1873
The Supreme Court of Judicature Act 1873 was an Act of Parliament by the Parliament of the United Kingdom in 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.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
, who said, "It is revolting to have no better reason for a rule of law than that 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." 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
John Baker (legal historian)
Sir John Hamilton Baker, QC, FBA, FRHistS, FBS is an English legal historian. He has been the Downing Professor of the Laws of England at the University of Cambridge since 1988.-Biography:...
to describe him as "one of the boldest of judicial spirits".
Pillans v Van Mierop
Pillans & Rose v Van Mierop & Hopkins 3 Burr 1663 is a case concerning letters of credit, and the doctrine of consideration. It has been recommended as a landmark case in English contract law. In it, Lord Mansfield tentatively expressed a view that the doctrine of consideration was redundant...
[1765] 3 Burr 1663, and Carter v Boehm
Carter v Boehm
Carter v Boehm 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:...
[1766] 3 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".
He was, however, criticised for his resistance to the freedom of the press
Freedom of the press
Freedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...
and his refusal to go against the King, as well as for blatant nepotism
Nepotism
Nepotism is favoritism granted to relatives regardless of merit. The word nepotism is from the Latin word nepos, nepotis , from which modern Romanian nepot and Italian nipote, "nephew" or "grandchild" are also descended....
—highlighted by his attempts to have Francis Buller
Sir Francis Buller, 1st Baronet
Sir Francis Buller, 1st Baronet was an English judge.-Life:Buller was born at Downes House in Devon, the son of James Buller, Member of Parliament for Cornwall, and his wife Lady Jane, daughter of Allen Bathurst, 1st Earl Bathurst. He was educated at the King's School, Ottery St Mary, and...
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
John Quincy Adams was the sixth President of the United States . He served as an American diplomat, Senator, and Congressional representative. He was a member of the Federalist, Democratic-Republican, National Republican, and later Anti-Masonic and Whig parties. Adams was the son of former...
described him as "more responsible for the Revolution
American Revolution
The American Revolution was the political upheaval during the last half of the 18th century in which thirteen colonies in North America joined together to break free from the British Empire, combining to become the United States of America...
than any other man". Scholars such as John Chipman Gray
John Chipman Gray
John Chipman Gray was an American scholar of property law and professor at Harvard Law School. He also co-founded one of the oldest and most prestigious law firms in the United States, the firm of Ropes & Gray, with law partner John Codman Ropes. He was half-brother to U.S...
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
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
".
Opinion over Mansfield's intention in his ruling in Somerset's Case is mixed, with the current prevailing view being that he did not actually intend to free the slaves. The judgment was particularly narrow, as it only ruled 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. 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; when opening the case he wrote "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 Alan Watson
Alan Watson
Professor W.A.J. 'Alan' Watson is a Scottish law and legal history expert, and is regarded as one of the world's foremost authorities on Roman law, comparative law, legal history, and law and religion...
interprets, along with Murray's attempts at putting off the case by holding multiple sessions, 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 aim.
Character
Mansfield was noted at the BarBarristers in England and Wales
Barristers in England and Wales are one of the two main categories of lawyer in England and Wales, the other being solicitors. -Origin of the profession:The work of senior legal professionals in England and Wales...
, in Parliament, and while sitting as a judge, for his eloquence and skill as a speaker; in particular Lord Chesterfield
Philip Stanhope, 4th Earl of Chesterfield
Philip Dormer Stanhope, 4th Earl of Chesterfield PC KG was a British statesman and man of letters.A Whig, Lord Stanhope, as he was known until his father's death in 1726, was born in London. After being educated at Trinity Hall, Cambridge, he went on the Grand Tour of the continent...
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. He was summarised by Gareth Jones
Gareth Jones (lawyer)
Gareth Hywel Jones Q.C., FBA is a British academic and longtime fellow of Trinity College, Cambridge and Professor of Law at the University of Cambridge....
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
Edmund Burke PC was an Irish statesman, author, orator, political theorist and philosopher who, after moving to England, served for many years in the House of Commons of Great Britain as a member of the Whig party....
, 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
Samuel Johnson , often referred to as Dr. Johnson, was an English author who made lasting contributions to English literature as a poet, essayist, moralist, literary critic, biographer, editor and lexicographer...
that "Much may be made of a [Scotsman], if he be caught young" was directed at Mansfield, and Johnson also described him as "more than a mere lawyer", while Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
, who is considered one of the most important lawyers in the history of English law, was "only a lawyer". Due to his reputation as a barrister Lincoln's Inn
Lincoln's Inn
The Honourable Society of Lincoln's Inn is one of 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. Although Lincoln's Inn is able to trace its official records beyond...
offer a series of scholarship for the Bar Vocational Course named the Lord Mansfield Scholarship.
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 Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
; 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
William Pitt, 1st Earl of Chatham
William Pitt, 1st Earl of Chatham PC was a British Whig statesman who led Britain during the Seven Years' War...
described him as "a very bad judge, proud, haughty to the Bar and hasty in his determinations", and Charles Yorke
Charles Yorke
Charles Yorke was Lord Chancellor of Great Britain.-Life:The second son of Philip Yorke, 1st Earl of Hardwicke, he was born in London, and was educated at Corpus Christi College, Cambridge. His literary abilities were shown at an early age by his collaboration with his brother Philip in the...
said he was "offensive and unpopular". 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
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
at the time. Edward Foss
Edward Foss
Edward Foss was an English lawyer and biographer.He was born in London. He became a solicitor, and on his retirement from practice in 1840, devoted himself to the study of legal antiquities. His Judges of England was regarded as a standard work, characterized by accuracy and extensive research...
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". He has been called "the legal genius of his generation", and compared favourably with Joseph Story
Joseph Story
Joseph Story was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered today for his opinions in Martin v. Hunter's Lessee and The Amistad, along with his magisterial Commentaries on the Constitution of the United States, first...
, a judge of the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
noted for his brilliance. Other Americans such as Julian S. Waterman, the founder of the University of Arkansas School of Law
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. It has around 445 students enrolled in its Juris Doctor and Master of Law programs and is home to the federally-funded National Agricultural Law Center and the...
, 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".