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William Murray, first Earl of Mansfield (1705-1793)

This article was written by James McMullen Rigg and was published in 1894

William Murray, first Earl of Mansfield 1705-1793, judge, was the fourth son of David, fifth viscount Stormont, by Margery, only child of David Scott of Scotstarvet. Muray was born at the Abbey of Scone on 2 March 1704-5, and educated successively at Perth grammar school, at Westminster School, where he was king's scholar in 1719, and at Christ Church, Oxford, where he matriculated on 18 June 1723, and was elected to a studentship.

Among his contemporaries and friends at Westminster were Thomas Newton, afterwards bishop of Bristol, James Johnson , afterwards bishop of Worcester, and Thomas Foley, afterwards second Baron Foley, who furnished him with the means to adopt the law as a profession instead of the church, for which, as the younger son of a poor Scottish peer, he had been intended. His family was Jacobite, and the high ideas of the royal prerogative with which Murray was in after life identified were doubtless due to his early training. A remarkable talent for declamation evinced at school he improved at Oxford by assiduous study of the classical models, particularly the orations of Cicero, some of which he translated into English and back again into Latin. An extant fragment of one of his academic exercises, a declamation in praise of Demosthenes, attests the purity and elegance of his latinity, and an Outline of a Course of Legal Study which he made for the heir to the dukedom of Portland about 1730 proves the width of his reading. In 1727 he graduated B.A., and began a lifelong rivalry with William Pitt, afterwards Earl of Chatham, by defeating him in the competition for the prize offered by the university for a Latin poem on the death of George I. He proceeded M.A. in 1730, and on 23 November of the same year was called to the bar at Lincoln's Inn, of which he was made a bencher in 1743. Murray was initiated into the mysteries of special pleading and conveyancing by Thomas Denison, afterwards justice of the king's bench, and James Booth (d. 1778). He frequented a debating club where moot-points of law were discussed in solemn form, ‘drank champagne with the wits,’ and practised elocution and the airs and graces of the advocate in the seclusion of his chambers at 5 King's Bench Walk, with the aid of a looking-glass and his friend Alexander Pope. Bolingbroke, Warburton, and Hurd were also among his friends.

Aided by his Scottish connection Murray got rapidly into practice, and argued before the House of Lords in the case of Paterson v. Graham on 12 March 1732-3. Other Scottish briefs followed; he gained popularity by his eloquent speech before the House of Commons in support of the merchants' petition concerning the Spanish depredations (30 March 1737-8), and after Walpole's fall he was made king's counsel and solicitor-general to Lord Wilmington's government, 27 November 1742, entering parliament as member for Boroughbridge, Yorkshire, which he continued to represent until his elevation to the bench. He was continued in office on Pelham's accession to power, 25 August 1743, and by his speeches against the disbandment of the Hanoverian mercenaries, 6 December 1743, and in support of the Habeas Corpus Suspension Bill, introduced in view of the threatened Jacobite insurrection, 28 February 1743-4, proved himself the ablest defender of the government in the House of Commons. In September 1743 he was presented with the freedom of Edinburgh, in recognition of his professional services to that city when threatened with disfranchisement for its behaviour in the affair of the Porteous riots. The prosecution of the rebel lords occupied him during the summer of 1746 and spring of 1747, and so well did he play his part that Lovat claimed kinship with him, and complimented him on his speech. A free-trader before Adam Smith, Murray made Lord Hardwicke's bill for prohibiting the insurance of French ships the occasion of an indictment of the policy of commercial restrictions pursued by the country during the previous half-century (18 December 1747).

He was now the acknowledged leader of the house, and by his defence of the treaty of Aix-la-Chapelle (1748), of the Bavarian subsidiary treaties, and of the Regency Bill (1750-1), rendered the government yeoman's service. To discredit him a musty story was raked up of his toasting the Pretender in old days at the house of a Jacobite mercer in Ludgate. His denial of the charge was accepted by the cabinet (26 February 1752-3), but the Duke of Bedford moving for papers on the subject in the House of Lords, the oath of secrecy was dispensed with, and the whole affair rediscussed, the motion being eventually negatived without a division. On more than one subsequent occasion Pitt in the House of Commons threw out dark hints of Jacobitism in high places, which were generally understood to refer to Murray, and the charge was revived by Churchill in the fourth book of his ‘Ghost.’ While this miserable business was pending Murray was engaged in vindicating, as far as learning and logic could vindicate, the rights of his country and the authority of the law of nations against the high-handed procedures of the king of Prussia, who had made the arrest by English cruisers of some Prussian merchant ships suspected of carrying contraband of war to French ports during the war with France a pretext for withholding payment of money due to English subjects on account of the Silesian loan. A report on the subject drafted by Murray and communicated to the Prussian minister in 1753 amply justified the arrest by the law of nations. The king of Prussia, however, by continuing the lien on the loan, eventually succeeded in extorting £20,000 from the British government.

On the death of Pelham, Murray became, 9 April 1754, attorney-general to the Duke of Newcastle's administration, which for two years he defended almost single-handed against the incessant attacks of Pitt. On the death of Sir Dudley Rider he claimed the vacant chief-justiceship and a peerage, and though offered the Duchy of Lancaster for life and a pension of £6,000 to remain in the House of Commons, refused to waive his claim, and on 8 November 1756 was called to the degree of serjeant-at-law, sworn in as lord chief justice of the king's bench, and created Baron Mansfield of Mansfield in the county of Nottingham. He celebrated the event the same evening by a splendid banquet in Lincoln's Inn Hall. On 11 November he took his seat in the court of king's bench, and in acknowledging a purse of gold presented to him by the Hon. Charles Yorke, treasurer of Lincoln's Inn, on behalf of that society, paid an eloquent tribute to Lord Hardwicke.

On the formation of the Duke of Devonshire's administration (November 1756) Murray was sworn of the privy council and offered but declined the great seal. He took his seat in the House of Lords on 2 December following, and made his maiden speech against the bill for releasing the court-martial on Admiral Byng from their oath of secrecy. During the interval between the dismissal of Legge (5 April 1757) and his return to the exchequer (30 June) Murray held the seals of that office. In Newcastle's new administration, formed at the latter date, he accepted a seat without office, but with the disposal of Scottish patronage in lieu of the great seal, which was again pressed upon him. In May 1758 he opposed the bill for the extension of the Habeas Corpus Act to civil cases. He attached himself to Lord Bute when that nobleman became prime minister (1762), and supported him throughout his administration. He retired on the formation of the Grenville administration in April 1763, but gave some support to Lord Rockingham's government (July 1766), although he opposed its repeal of the Stamp Act, arguing with perverse ingenuity that the American colonists were ‘virtually’ represented in parliament. With the Duke of Grafton's administration, formed under Pitt's guidance in July 1766, he was not much in sympathy. He attacked ministers for the technical breach of the constitution involved in the prohibition by order in council of the exportation of corn during the scarcity of the autumn of 1766. But he again held the seals of the exchequer during the interval between the death of Townshend and the appointment of Lord North (September-December 1767) (Add. MS. 32985, f. 53).

In May 1765 he had given his general support to Pratt in the case of Leach v. Three King's Messengers, in which general warrants were affirmed to be illegal, as they were declared to be by a resolution in the House of Commons in the following year. In 1767, however, he incurred some popular odium by discountenancing some prosecutions under the penal law of 1700 (11 & 12 William III, c. 4), which made celebration of mass by a Roman Catholic priest punishable by imprisonment for life. He evinced the same enlightened spirit in the case of the Chamberlain of London v. Evans. The defendant, a protestant dissenter, had been fined by the corporation of London, under one of their by-laws, for refusing to serve the office of sheriff, to which he had been elected, though ineligible by reason of not having taken the communion according to the rites of the Church of England within a year before the election. He refused to pay the fine, and after prolonged litigation the case came before the House of Lords on writ of error from the court of delegates, and their unanimous judgment in favour of the defendant was delivered by Mansfield, in a speech of classic eloquence, on 4 February 1767. At a somewhat later date Mansfield made a precedent of far-reaching consequence by suffering a member of the Society of Friends to give evidence on affirmation in lieu of oath. Mansfield increased his unpopularity by his conduct in the case of Wilkes. A technical flaw in the informations filed in respect of the publication of No. 45 of the ‘North Briton’ and the ‘Essay on Woman’ he allowed to be amended during Wilkes's absence abroad. Wilkes accordingly, on his return to England after his outlawry, denounced Mansfield as a subverter of the laws, and took proceedings in the king's bench to reverse the outlawry. The case thus came before Mansfield himself, and during its progress persistent attempts were made to intimidate him by threatening letters. He is said to have been constitutionally timid, and some colour is given to the charge by the solicitude which his judgment evinced to vindicate himself from all suspicion of being influenced by any considerations but those of abstract justice. The question was intricate and obscure, and after careful argument and much scrutiny of precedents, Mansfield decided against Wilkes on all the points raised by his counsel. He then proceeded to reverse the outlawry on a technical flaw discovered by himself, and substituted a sentence of fine and imprisonment (8 June 1768).

Mansfield acted as speaker of the House of Lords in the interval between the death of Charles Yorke (20 January 1770) and the creation of Lord-chancellor Bathurst. He defeated Lord Chatham's attempt to involve the lords in the struggle between Wilkes and the House of Commons (May 1770), and carried a measure (10 Geo. III, c. 50) rendering the servants of members of either house of parliament liable to civil process during prorogation. By the committal of Bingley, the printer of Nos. 50 and 51 of the North Briton, to the Marshalsea for refusing to answer interrogatories (7 November 1768), and by his directions to the jury in three cases of seditious libel arising out of the publication and sale of Junius's ‘Letter to the King,’ he aggravated the ill-odour in which he already stood. The cases were tried in the summer of 1770, and Mansfield in each instance directed the jury that if they were satisfied of the fact of publication or sale they ought to find for the crown, as the question of libel or no libel was a matter of law for the court to decide. He thus secured a verdict in one case; in one of the other two the jury acquitted the defendant; in the third, that of Rex v. Woodfall, they found a special verdict of ‘guilty of printing and publishing only.’ This verdict being ambiguous, a motion was made on the part of the crown to enter it ‘according to its legal import,’ i.e. omitting the word ‘only,’ upon which Mansfield, after consultation with his colleagues, reaffirmed, with their unanimous concurrence, his original ruling, and directed a venire de novo. This decision elicited from Junius a letter of unusual acerbity, charging Mansfield with a design to subvert the constitution by form of law, and was made the occasion of an animated debate in the House of Commons (6 December). In answer to some animadversions on the subject in the House of Lords, Mansfield laid a copy of the judgment in Rex v. Woodfall on the table of the house, but evaded Lord Camden's challenge for a formal discussion of the matter.

In July 1777 Mansfield presided at the trial of John Horne, afterwards Horne-Tooke, for seditious libel. His statement of the law did not materially vary from that which he had previously given, and was accepted by the jury. In the case of the Dean of St. Asaph, which came before him on motion for a new trial in Michaelmas term 1784, Mansfield reaffirmed his doctrine of the respective functions of judge and jury in cases of libel. That the doctrine itself was strictly in accordance with precedent admits of no doubt but the feeling of the country was strongly against it and a few years later (1792) it was swept away by Fox's Libel Act.

While thus, according to his enemies, forging fetters for his countrymen, Mansfield struck a blow for the emancipation of the slave. In December 1771 James Somersett, a negro confined in irons on board a ship in the Thames, was produced before him on habeas corpus in the court of king's bench. The return was that he had been purchased in Virginia, brought to England, had run away, and, having been retaken, had been shipped for export to Jamaica. The case raised the broad question whether slaves could lawfully be kept in England, on which there was no direct authority, though Francis Hargrave based a learned argument on the extinction of villenage. In the end, Mansfield decided the case on the simple ground that slavery was ‘so odious’ that nothing could ‘be suffered to support it but positive law,’ and released the negro. In the following year he was attacked by Junius, for his supposed partiality to the Scots, with even more bitterness and brilliance than before and in 1773 by Andrew Stuart for the part he had taken in deciding the great Douglas cause. In 1774-5 Mansfield decided two cases of great constitutional importance. The first, that of Campbell v. Hall, decided 28 November 1774, is the Magna Charta of countries annexed by conquest to the British crown. The action was by a landowner of Grenada against a customs officer to recover the amount of a duty levied under royal letters patent, issued after the cession of the island by France (1763), and its provision with a constitutional government — the whole question being whether the letters patent were valid or not. The jury having returned a special verdict, the question of law was thrice argued before Mansfield, who, on 28 November 1774, decided it in the negative, on the ground that the sovereign cannot by his prerogative so legislate for conquered countries as to contravene the fundamental principles of the constitution. The second case was that of Fabrigas v. Mostyn, an action for false imprisonment by a native of Minorca against the late governor of that island, removed by writ of error from the common pleas, where the plaintiff had obtained a verdict, to the king's bench. The question raised by the writ of error was whether an English court had jurisdiction to try an action founded on a wrong done in Minorca, where English law had not been introduced. After hearing the case twice argued, Mansfield, by means of a legal fiction by which Minorca was considered ‘the parish of St. Mary-le-Bow, in the ward of Cheap,’ affirmed the jurisdiction and the judgment of the court below (27 January 1775).

The long vacation of 1774 was spent by Mansfield at Paris as the guest of his nephew, Lord Stormont, British ambassador at the French court. He travelled incognito, and was thought to be charged with a secret mission. In regard to American affairs Mansfield was credited with being the author of the Quebec Bill of 1775. He strongly supported the prohibitory bill of the same year, and throughout the subsequent history of the struggle never wavered in his firm adhesion to the policy of coercion. Though not in Lord North's cabinet, it is probable that he was in the confidence of ministers, and privy to most of their measures.

On 31 October 1776 he was advanced to an earldom, by the title of Earl of Mansfield in the county of Nottingham, with remainder, in default of male issue, to Louisa, viscountess Stormont, and her heirs by his nephew Viscount Stormont in tail male. The peculiar limitation of the remainder was made in consequence of the mistaken idea then prevalent, that a Scottish peer could not take an English peerage otherwise than by inheritance. When the contrary was decided, a new patent was issued, 1 August 1792, by which Mansfield was created Earl of Mansfield of Caen Wood in the county of Middlesex, with remainder, in default of male issue, to his brother's son, Viscount Stormont. His nephew David Murray accordingly succeeded him as second earl.

On occasion of Lord Chatham's final scene in the House of Lords, on 7 April 1778, Mansfield disgraced himself by exhibiting an ostentatious indifference; nor did he attend the great patriot's funeral, or pay his tribute of respect to his memory in the debate on the bill for pensioning his posterity. On 25 November 1779 he proposed a coalition of all parties for the purpose of grappling with the now desperate situation of American affairs. His advice was rejected, and he took little further part in politics. The Roman Catholic Relief Bill of 1778 was, however, known to have had his approval, and on the outbreak of the Gordon riots (2 June 1780) he experienced the vengeance of the mob. His carriage windows were broken, and he was hustled as he passed to the House of Lords, of which he was then speaker pro tempore, and on the night of 7 June his house in Bloomsbury Square was sacked and burned. With Lady Mansfield he made his escape by a back door shortly before the mob effected an entrance. His books, manuscripts, pictures, and furniture were entirely destroyed or dispersed. Apparently stunned by the blow, he took no part in quelling the riot, and was not even consulted as to the lawfulness of firing on the mob, though he afterwards justified the ministers in the House of Lords. Cowper lamented in some pretty verses the loss of his library and manuscripts.
In presiding at the subsequent trial of Lord George Gordon, Mansfield exhibited as much judicial impartiality as if he had himself sustained no injury by the riots. As speaker of the House of Lords while the great seal was in commission (February to December 1783) he presided during the animated debates on the Receipt Tax and Fox's India Bill. He closed his political career by a speech on a corrupt practices bill on 23 March 1784.

Ill-health, which visits to Tunbridge Wells failed to restore, compelled Mansfield to resign office on 4 June 1788. He retired to his house, Caen Wood, Highgate, and devoted his declining days to horticulture, the study of the classics, society, and religious meditation. Still interested in public affairs, he lived to see the outbreak of the French revolution, of which he took from the first a very gloomy view. He died peacefully of old age on 20 March 1793. He was buried on the 28th in the North Cross, Westminster Abbey, in accordance with a desire expressed in his will that his bones might rest near the place of his early education. The funeral by his express direction was private. His monument by Flaxman on the west side of the north transept, was placed there in 1801. His bust by Nollekens is at Trinity Hall, Cambridge. Portraits of him by Allan Ramsay and Copley are in the National Portrait Gallery. His portrait by Reynolds, painted in 1785-6 and engraved in stipple by Bartolozzi, is in the possession of the present Earl of Mansfield. Another by David Martin hangs in the hall of Christ Church, Oxford.

Mansfield's fine person, elegant manners, and sprightly wit rendered him a great favourite with ladies. He married, on 20 September 1738, Lady Elizabeth Finch, seventh daughter of Daniel, second earl of Nottingham, and sixth earl of Winchilsea, by whom he had no issue. She died on 10 April 1784, and was also buried in the North Cross, Westminster Abbey.

As a parliamentary debater Mansfield was second, if second, only to Chatham, to whose stormy invective and theatrical tones and gestures, his ‘silver-tongued’ enunciation, graceful action, and cogent argument formed a singular contrast. ‘In all debates of consequence,’ wrote Lord Waldegrave in 1755, ‘Murray, the attorney-general, had greatly the advantage over Pitt in point of argument; and, abuse only excepted, was not much his inferior in any part of oratory;’ and Horace Walpole, one of his bitterest enemies, confessed, in reference to his speech on the Habeas Corpus Extension Bill of 1758, that he ‘never heard so much argument, so much sense, so much oratory united’. On the other hand, he was conspicuously lacking in the præfervidum ingenium usually characteristic of his countrymen, and was charged by his enemies with pusillanimity. His spiritless conduct in the debate on Wilkes's exclusion from the House of Commons (1 May 1770), and his subsequent evasion of Lord Camden's challenge in regard to the law of libel, severely damaged his reputation. At the bar his mere statement of a case, by its extreme lucidity, was supposed to be worth the argument of any other man. As a statesman his fame is tarnished by his blind adhesion to the policy of coercing America, nor is his name associated with any statute of first-rate importance. Macaulay terms him, however, ‘the father of modern toryism, of toryism modified to suit an order of things in which the House of Commons is the most powerful body in the state.’

As a judge, by his perfect impartiality, inexhaustible patience, and the strength and acumen of his understanding, he ranks among the greatest who have ever administered justice. Such was his ascendency over his colleagues, that during the first twelve years of his tenure of office they invariably, though by no means insignificant lawyers, concurred in his judgment. The first case of a final and irreconcilable difference of opinion occurred in 1769, on the question whether literary copyright in published works existed at common law, or was a mere creation of statute. Mansfield held the former alternative, but the latter was eventually affirmed by the House of Lords. A scholar and well read in the civil law, Mansfield was charged by Junius with the black offence of corrupting the ancient simplicity of the common law with principles drawn from the corpus juris, and his preference of reason to routine offended the pedants of Westminster Hall. The silly technicality which required a deed to be indented he abrogated by holding any deed an indenture which had not its edges mathematically straight. In the once famous case of Perrin v. Blake he startled the profession by deviating from the narrow way of the rule in Shelley's case. His decision, however, was reversed by the exchequer chamber, and sharply criticised by Charles Fearne] in his classical treatise on Contingent Remainders. By reversing the decision of the court of session in the case of Edmondstone v. Edmonstone he ‘struck off,’ says Lord Campbell, ‘the fetters of half the entailed estates in Scotland.’ At Guildhall, where he trained and attached to himself a select body of special jurors who were regularly impanelled for mercantile causes, and taught him the usages of trade, he did much, by the unerring instinct with which he grasped, and the lucidity with which he formulated, the general principle underlying each particular case, to forward the work, already begun by Sir John Holt, of moulding the law into accordance with the needs of a rapidly expanding commerce and manufacture. He thus converted our mercantile law from something bordering upon chaos into what was almost equivalent to a code. He also improved the law of evidence and the procedure of the courts. His humorous maxim, ‘No case, abuse plaintiff's attorney,’ and his advice to a colonial governor ignorant of law, on no account to give reasons for his judgments, have often been quoted.

Mansfield was a sincere Christian, but so careless of times and seasons that he once proposed to try a case on Good Friday, and only abandoned the idea in deference to the protest of one of the leading counsel against following a precedent set by Pontius Pilate. A sense of justice and regard for the memory of an old friend induced him to protest against Warburton's treatment of Bolingbroke (1754) in an anonymous letter. A thanksgiving sermon, preached by his friend Bishop Johnson in Westminster Abbey 29 November 1759, is said to have been written at Mansfield's dictation.

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