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William Murray, 1st Earl of Mansfield
He was born at Scone in Perthshire, Scotland, a younger son of David Murray, 4th Viscount of Stormont (c. 1665-1731), a member of a Jacobite family. William Murray was educated at Perth grammar school and Westminster School, of which he was a king's scholar. Entering Christ Church College, Oxford, he graduated in 1727. A friend of the family, Thomas Foley, 1st Baron Foley , provided the funds for his legal training, and he became a member of Lincoln's Inn on his departure from Oxford, being called to the bar in 1730. He was a good scholar and mixed with the best literary society, being an intimate friend of Alexander Pope. His appearance in some important Scottish appeal cases brought him into notice, and in Scotland at least he acquired an immense reputation by his appearance for the city of Edinburgh when it was threatened with disfranchisement for the affair of the Porteous mob. His English practice had as yet been scanty, but in 1737 a single speech in a jury trial of note placed him at the head of the bar, and from this time he had all he could attend to. In 1738 he married Lady Elizabeth Finch, daughter of the Daniel Finch, 7th Earl of Winchilsea.
His political career began in 1742 with his appointment as Solicitor-General. During the next fourteen years he was one of the most conspicuous figures in the parliamentary history of the time. By birth a Jacobite, by association a Tory, he was nevertheless a Moderate, and his politics were really dominated by his legal interests. Although holding an office of subordinate rank, he was the chief defender of the government in the House of Commons, and during the time that William Pitt the Elder was in opposition had to bear the brunt of his attacks. In 1754 he became Attorney-General, and for the next two years acted as Leader of the House of Commons under the administration of Thomas Pelham-Holles, 1st Duke of Newcastle. But in 1756, when the government was evidently approaching its fall, an unexpected vacancy occurred in the chief justiceship of the king's bench, and he claimed the office, being at the same time raised to the peerage as Baron Mansfield.
From this time the chief interest of his career lies in his judicial work, but he did not wholly dissever himself from politics. He became by a singular arrangement, only repeated in the case of Lord Ellenborough, a member of the cabinet, and remained in that position through various changes of administration for nearly fifteen years, and, although he persistently refused the chancellorship, he acted as Speaker of the House of Lords while the Great Seal was in commission. During the time of William Pitt the Younger's ascendancy he took but little part in politics, but while Lord Bute was in power his influence was very considerable, and seems mostly to have been exerted in favour of a more moderate line of policy. He was on the whole a supporter of the prerogative, but within definite limits. Macaulay terms him, justly enough, "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."
During the stormy session of 1770 he came into violent collision, with Pitt the Elder and Charles Pratt, 1st Earl Camden in the questions that arose out of the Middlesex election and the trials for political libel; and in the subsequent years he was made the subject of the bitter attacks of Junius, in which his early Jacobite connexions, and his apparent leanings to arbitrary power, were used against him with extraordinary ability and virulence. In 1776 he was created Earl of Mansfield. In 1783, although he declined to re-enter the cabinet, he acted as Speaker of the House of Lords during the coalition ministry, and with this his political career may be said to have closed. He continued to act as chief justice until his resignation in June 1788, and after five years spent in retirement died on the 20th of March 1793. He left no family, but his title had been re-granted in 1792 with a direct remainder to his nephew David Murray, 7th Viscount Stormont. (1727-1796). Murray's nephew became ambassador to Vienna and then to Paris; he was Secretary of State for the Southern Department from 1779 to 1782, and Lord President of the Council in 1783.
Lord Mansfield's great reputation rests chiefly on his judicial career. The political trials over which he presided, although they gave rise to numerous accusations against him, were conducted with singular fairness and propriety. He was accused with especial bitterness of favouring arbitrary power by the law which he laid down in the trials for libel which arose out of the publications of Junius and John Horne Tooke, and which at a later time he reaffirmed in the case of the dean of St Asaph. But we must remember that his view of the law was concurred in by the great majority of the judges and lawyers of that time, and was supported by undoubted precedents. In other instances, when the government was equally concerned, he was wholly free from suspicion.
He supported Lord Camden's decision against general warrants, and reversed the outlawry of John Wilkes. He was always ready to protect the rights of conscience, whether they were claimed by Dissenters or Catholics, and the popular fury which led to the destruction of his house during the Gordon riots was mainly due to the fact that a Catholic priest, who was accused of saying Mass, had escaped the penal laws by his charge to the jury. His chief celebrity, however, is founded upon the consummate ability with which he discharged the civil duties of his office. He has always been recognized as the founder of English mercantile law . The common law as it existed before his time was wholly inadequate to cope with the new cases and customs which arose with the increasing development of commerce. The facts were left to the jury to decide as best they might, and no principle was ever extracted from them which might serve as a guide in subsequent cases. Mansfield found the law in this chaotic state, and left it in a form that was almost equivalent to a code. He defined almost every principle that governed commercial transactions in such a manner that his successors had only to apply the rules he had laid down. His knowledge of foreign and Roman law, and the general breadth of his education, freed him from the danger of relying too exclusively upon narrow precedents, and afforded him a storehouse of principles and illustrations, while the grasp and acuteness of his intellect enabled him to put his judgments in a form which almost always commanded assent. A similar influence was exerted by him in other branches of the common law; and although, after his retirement, a reaction took place, and he was regarded for a while as one who had corrupted the ancient principles of English law, these prejudices passed rapidly away, and the value of his work in bringing the older law into harmony with the needs of modern society has long been fully recognized.
Lord Mansfield and abolition of slavery
James Somerset, a slave, brought to England by his master, a Mr. Stewart of Virginia, brought suit against him on 14 May 1772. Lord Mansfield, rendered his verdict in favor of Somerset on 22 June 1772.
"On the part of Somerset, the case which we gave notice should be decided, this day, the Court now proceeds to give its opinion. 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."
Mansfield concluded that there was no legal backing for slavery in England. Furthermore, he wrote the following words into British common law -- words that have been memorized by British pupils ever since.
- "The air of England is too pure for a slave to breathe, and so everyone who breathes it becomes free. Everyone who comes to this island is entitled to the protection of English law, whatever oppression he may have suffered and whatever may be the colour of his skin."
This ruling applied only to England, and not the rest of the British Empire, and British commerce in slaves continued for thirty-five years until 1807, when Parliament formally abolished the slave trade. From Lord Mansfield's ruling in this case comes also the famous quote, "Let Justice be done, though the Heavens may fall."
See Holiday's Life (1797); Campbell's Chief Justices; Foss's Judges; Greville's Memoirs; Horace Walpole's Letters; Wise's Though The Heavens May Fall; Horace Walpole's Letters; and other memoirs and works on the period.
Lord Mansfield and copyright law
Lord Mansfield's role in an important decision in formation of copyright law is seen as uncharacteristicly short-sighted. In Millar v. Taylor, Mansfield held in favor of an English publisher, who argued that a common law right to copyright continued after the limited term granted under the Statute of Anne expired. While his decision in the case is seen as a logical deduction, it is criticized for ignoring the context of the Statute of Anne as a response, following the English Civil War, to the monopolies of the Crown. By upholding a common law right to copyright, Mansfield ruled in favor of a copyright that would never expire and sidesteped the intent of the Statute of Anne to create a public domain. Mansfield's ruling was overruled in a later decision by the House of Lords, Donaldson v. Beckett.
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