MURRAY, WILLIAM, earl
of Mansfield, and lord chief justice of the King’s Bench, the fourth son of
Andrew, viscount Stormont, was born at Perth on the 2nd March, 1704.
[Holliday’s Life of Mansfield, p. 1. Roscoe’s Lives of British Lawyers,
171.] In 1719, he was admitted a king’s scholar at Westminster. On the 18th
June, 1723, he entered Christ church, Oxford, having been first in the list
of those promoted to the university. In 1730, he visited the continent,
after having graduated as master of arts; and, on his return, was called to
the bar at Michaelmas term 1731. As a schoolboy and student, he gained
prizes, and is said to have shown promise of literary distinction; while,
even after having joined his profession, he did not appear to direct his
powers to the acquisition of legal knowledge. The office of a special
pleader frequently damps the energy of talents formed to cast honour on the
bar or the bench; and Murray, along with many who have, and many who have
not, been able to overcome the rigid barrier to the pursuit in which their
talents made them capable of shining, was generally esteemed more fitted for
a scholar than a lawyer. It is probable that the success of his first
attempts showed him how successfully he might employ his energies in this
direction. He was early engaged in a few important appeals, his appearance
in which brought so speedy an accumulation of business, that it is said to
have been remarked by himself, that he never knew the difference between
absolute want of employment, and a professional income of £3000 a-year. He
soon threw the whole powers of his mind into the most minute acquirements
necessary to procure eminence as a speaker, and is known to have been caught
practising gesture before a mirror, with his friend Pope at his side acting
as teacher of elocution. The intimacy with the illustrious poet probably
commenced in similarity of pursuits (for Murray wrote poetry in his youth,
which has fallen into probably merited oblivion), and was fostered by the
absence of rivalry in after life. Pope condescended to turn his verses into
compliments on his forensic friend, and the latter must have felt what the
Roman has so well described, "pulchrum est laudari a laudato." It would be
difficult to conceive a greater incentive to the rising ambition of an
aspiring mind than these concluding lines:
"Graced as thou art with all the power
of words,
So known, so honoured, in the house of Lords—
Conspicuous scene! another yet is nigh,
More silent far, where kings and poets lie;
Where Murray (long enough his country’s pride)
Shall be no more than Tully or than Hyde!"
Like lord Eldon, he made the
first exhibition of his full power in commanding a jury, from the accidental
illness of his senior counsel; a circumstance which happened in the action
for criminal conversation brought by Theophilus Cibber against Mr Sloper. He
requested a postponement for an hour, and never being void of
self-possession except when personally attacked, he omitted nothing which
his opportunities enabled him to accomplish, and made an impressive charge,
which produced a decided effect in favour of his client. He soon after
employed in a professional service which may be said to have been in defence
of his native country. When, after the murder of Porteous, the lords passed
and sent down to the commons a bill for disqualifying and imprisoning the
provost of Edinburgh, abolishing the city guard, and taking away the gates
of the Netherbow port, he, assisted by Barnard, Shippen, Ogelthorpe, and
most of the Scots members, pertinaciously resisted the insulting measure
through a stormy conference, and was partly the means of lopping away the
portion most offensive to the public; and the bill as returned and passed by
the lords, merely disqualified the provost, and imposed a fine of £2000 on
the city, for the benefit of the widow of Porteous. Murray’s services on
this occasion were rewarded by the freedom of the city of Edinburgh, which
was presented to him in a gold box. [Coxe’s Walpole, i. 495.]
In 1743, the attention of a
ministry, not supported by extensive political talent, and obliged to combat
with strong adversaries, was directed towards the commanding powers of Mr
Murray. He was chosen solicitor-general, and being thus initiated as a
responsible legislator, was one of the few lawyers whose genius proved as
great in the senate as it had been at the bar. In 1742, he took his seat in
the house as member for Boroughbridge. In 1746, he was ex offtcio one
of the counsel against the rebel lords. It is said that he performed an
unwelcome duty. He certainly exhibited a disposition to act as a high-minded
public prosecutor ought always to do, by showing that he was rather the
instrument through which the law acted in doing justice, than a person
employed to procure the punishment of a fellow citizen. "Every gentleman,"
he observed, choosing the collective term as the least invidious mode of
expressing his own feelings, "who has spoken in this trial, has made it a
rule to himself to urge nothing against the prisoner but plain facts and
positive evidence without aggravation." Whether he acted from principle, or
a secret leaning towards the cause he ostensibly opposed, is not likely to
be ever known; but those who brought the accusation against him should have
founded it on different evidence from the circumstance, that, as crown
counsel, he was unwilling to stretch the law against the accused. The
humbled lord Lovat, the person on whose trial he made the above remark, in a
fit of liberality or national feeling, made the following
observations on the solicitor in his defence. "I am very sorry I gave your
lordships so much trouble on my trial, and I give you a million of
thanks for being so good in your patience and attention while it lasted. I
thought myself very much loaded by one Mr Murray, who, your lordships know,
was the bitterest enemy there was against me. I have since suffered by
another Mr Murray, who, I must say with pleasure, is an honour to his
country, and whose eloquence and learning are much beyond what is to be
expressed by an ignorant man like me. I heard him with pleasure, though it
was against me. I have the honour to be his relation, though perhaps he
neither knows it nor values it. I wish that his being born in the north may
not hinder him from the preferment that his merit and learning deserve. Till
that gentleman spoke, your lordships were inclined to grant my
earnest request, and to allow me farther time to bring up my witnesses to
prove my innocence; but, it seems that has been overruled." [State Trial,
xvi. 877.] But one who was present, and who has dipped his pen in
gall, has given a less pleasing account than that generally believed, of his
conduct at these trials. Horace Walpole says, in a letter to Horace Man,
"While the lords were withdrawn, the solicitor-general Murray, (brother of
the Pretender’s minister) officiously and insolently went up to lord
Balmerino, and asked him, how he could give the lords so much trouble, when
his solicitor had informed him that his plea would be of no use to him?
Balmerino asked the bystanders who this person was? and being told, he said,
‘Oh Mr Murray! I am extremely glad to see you: I have been with several of
your relations: the good lady, your mother, was of great use to us at
Perth;’ are not you charmed with this speech: how just it was!" But Murray
did not escape charges of disaffection more apparently serious. A dinner had
been given by the dean of Durham on occasion of the king’s birthday, when a
conversation was commenced by an individual of the name of Fawcett, an old
class-fellow of Murray, as to the probable preferment of Johnson, a mutual
friend, then bishop of Gloucester. On this occasion Fawcett observed, that
"he was glad Johnson was so well off, for he remembered him a Jacobite
several years ago, and that he used to be with a relation of his who was
very disaffected, one Vernon Mercer, where the Pretender’s health was
frequently drunk. On a ministerial inquiry, the charge of drinking the
Pretender’s health was transferred to Murray, and the matter became the
subject of an accusation before the cabinet council. Murray was the intimate
friend and companion of Vernon’s eldest son, and had so established himself
as a virtual brother to the young man, that the father, on his son’s death,
left to Murray a considerable fortune. [Holliday, 51.] This man was a
Jacobite. The university of Oxford was at that period a nest of traitors;
and, taking into view Murray’s family connexions, his youth, his ardour, and
the circumstance that he must have been aware that almost every noble family
in Britain then conducted a correspondence with the exiled Stuarts, no man
was more likely to have drunk the Pretender’s health in a moment of
conviviality. However, he denied the charge, stating his loyalty towards the
existing government, which, by the time he was made solicitor-general, was
probably sincere. Inquiry was stifled, and nothing was proved to the public
on either side. But the accusation was never entirely dropped by his
opponents; every one knows the use made of it by Junius. Pitt would use it
to poison the sharpest darts of his eloquence, and on such occasions
Murray is said to have felt, but never to have dared to answer. Pitt had
been detailing some symptoms of Jacobitism which he had seen at Oxford.
Horace Walpole says on this occasion, [Memoir of the last ten years of
George II, i. 358.] "colours, much less words, could not paint
the confusion and agitation that worked in Murray’s face during this almost
apostrophe. His countenance spoke everything that Fawcett had been terrified
to prevaricate away." On another occasion, the scene is thus told: "After
Murray had suffered for some time, Pitt stopped, threw his eyes around, then
fixing their whole power on Murray, said, ‘I must now address a few words to
Mr Solicitor: they shall be few, but they shall be daggers.’ Murray was
agitated: the look was continued; the agitation increased. ‘Judge Festus
trembles,’ exclaimed Pitt, ‘he shall hear me some other day.’ He sat down,
Murray made no reply, and a languid debate is said to have shown the
paralysis of the house." [Butler’s Remains. Roscoe, 181.] It may be well
here to give the picture which Walpole has furnished us of Murray and his
two great rivals in oratory, Pitt and Fox. The picture is beautiful, and
though too glaringly coloured, must be to a certain extent founded on truth.
"Murray, who at the beginning of the session was awed by Pitt, finding
himself supported by Fox, surmounted his fears, and convinced the house, and
Pitt too, of his superior abilities. He grew most uneasy to the latter. Pitt
could only attack, Murray only defend. Fox, the boldest and ablest champion,
was still more formed to worry, but the keenness of his sabre was blunted by
the difficulty with which he drew it from the scabbard: I mean the
hesitation and ungracefulness of his delivery took off from the force of his
arguments. Murray, the brightest genius of the three, had too much, and too
little of the lawyer; he refined too much, and could wrangle too little, for
a popular assembly. Pitt’s figure was commanding; Murray’s engaging from a
decent openness; Fox’s dark and troubled; yet the latter was the only
agreeable man. Pitt could not unbend; Murray in private was inelegant: Fox
was cheerful, social, communicative. In conversation, none of them had wit:
Murray never had: Fox had in his speeches, from clearness of head and
asperity of argument. Pitt’s wit was genuine, not tortured into the service,
like the quaintnesses of my lord Chesterfield." [Walpole’s Memoirs, i. 490.]
On the accession of the duke of Newcastle’s ministry in 1754, Mr
Murray was advanced to the office of attorney-general, in place of Sir Dudly
Ryder, in 1756, he followed him as chief justice of the King’s Bench, the
post to which he always looked as the most desirable, and which he preferred
to the labours and responsibilities of the chancellorship or premiership. He
probably had no wish to remain longer a member of such a government as
Newcastle’s; but that weak head of a cabinet had sufficient wisdom to
calculate the loss of such a man as Murray, and extravagant offers are said
to have been made to induce him to remain for some time a working partisan
of the ministry. In his promotion, however, he does not seem to have wished
to relinquish the honours of administration, while he eschewed the
responsibility. Contrary to custom, but not to precedent, he remained a
member of the cabinet, and changed his sphere of action for the house of
lords, with the title of baron Mansfield of Mansfield, in the county of
Nottingham. On his taking leave of the society of Lincoln’s Inn, he received
the usual congratulatory address, which was presented by the honourable C.
York, son to lord Hardwicke.
Let us now cast a glance at
lord Mansfield’s character, and services to the public, as a judge. It is in
this capacity that we will find the only practical memorial which he has
left for posterity; but it is such a memorial as few, if any other judges,
have left. The declaration of what the law is, is generally thought
sufficient duty for a judge, and he is praised if he does it well,—the evils
which his train of decisions may have produced to posterity, when their
principle was applied to other cases, are not to be attributed to him; he
was not prophetic, and could not foresee such events. But lord Mansfield, in
more than one branch of law, framed his decisions for the advantage of
posterity; and of the law of marine insurance, which is now a vast system
both in England and Scotland, he may be said to have been the framer. On
this subject, the opinion of one of the most ample writers on the English
law of marine insurance, will best explain what lord Mansfield accomplished.
"Before the time of this venerable judge, the legal proceedings, even on
contracts of insurance, were subject to great vexations and oppressions. If
the underwriters refused payment, it was usual for the insured to bring a
separate action against each of the underwriters on the policy, and to
proceed to trial on all. The multiplicity of trials was oppressive both to
the insurers and insured; and the insurers, if they had any real point to
try, were put to an enormous expense before they could obtain any decision
of the question which they wished to agitate. Some underwriters, who thought
they had a sound defence, and who were desirous of avoiding unnecessary cost
or delay to themselves or the insured, applied to the court of King’s Bench,
to stay the proceedings in all the actions but one, undertaking to pay the
amount of their subscriptions with costs, if the plaintiff should succeed in
the cause which was tried; and offering to admit, on their part, everything
which might bring the true merits of the case before the court and jury.
Reasonable as this offer was, the plaintiff, either from perverseness of
disposition, or the illiberality or cunning of his advisers, refused his
consent to the application. The court did not think themselves warranted to
make such a rule without his consent; but Mr Justice Denison intimated, that
if the plaintiff persisted, against his own interest, on his right to try
all the causes, the court had the power of granting imparlances in all but
one, till there was an opportunity of granting that one action. Lord
Mansfield then stated the great advantages resulting to each party, by
consenting to the application which was made; and added, that, if the
plaintiff consented to such a rule, the defendant should undertake not to
file any bill in equity for delay, nor to bring a writ of error, and should
produce all books and papers that were material to the point in issue. This
rule was afterwards consented to by the plaintiff, and was found so
beneficial to all parties, that it is now grown into general use, and is
called the consolidation rule, Thus, on the one hand, defendants may have
questions of real importance tried at a small expense; and plaintiffs are
not delayed in their suits by those arts which have too frequently been
resorted to, in order to evade the payment of a just demand. [Park on
Insurance Introduction 12.] Such is one out of the several
judicial measures by which lord Mansfield erected this great system. But it
is said that he made the changes in the law, by changing himself from the
administrator of the law into the legislator; that he did not adhere to the
letter of the law, but gave it an equitable interpretation, virtually
altering it himself, in place of leaving to the legislature the correction
of bad laws, a system which, whatever good use he might himself have made of
it, was not to be intrusted to a chief justice, and never was so by the law
of England. The charge is not without foundation. Junius says to him, in his
celebrated letter of 14th November, 1770, "No learned man ever among your
own tribe, thinks you qualified to preside in a court of common law. Yet it
is confessed that, under Justinian, you might have made an incomparable
pretor." The Roman law was, in all its branches, the excess of
equity, even when compared to the equity court of England; but the pretorian
branch was the equity of the Roman law. It is probable that the institute
was at all times a more pleasing study to the elegant mind of lord
Mansfield, than the rigid common and statute law of England. He frequently
made reference to it, and may have been induced to study it, in capacitating
himself for pleading Scotch appeals; yet he is understood to have been the
author of the chapter in Blackstone’s Commentary, which answers the
arguments of lord Kames in favour of the extension of equity in England. His
opinions on the rights of jury trials in cases of libel, have met with still
more extensive censure. He maintained "that the printing and sense of the
paper were alone what the jury had to consider of." The intent with which
this was done, (as it is singularly termed the law,) he retained for the
consideration of the court. In the cases of Almon and of Woodfall, he so
instructed the jury. In the latter case, the verdict was "guilty of printing
and publishing only." There was no charge, except for printing and
publishing, in the information, the intent being for the consideration of
the court. On the motion for arrest of judgment, it is clear from lord
Mansfield’s opinion, that, had the verdict been "guilty of printing and
publishing," he would have given judgment on the opinion of the court as to
intent; but the word "only" was a subject of doubt, and a new trial was
ruled. [State Trials, xx. 919-21.] The verdict, in this case, was "not
guilty." Lord Mansfield could not prevent such a verdict, without
unconstitutional coercion; but he accommodated it to his principles, by
presuming that the meaning of such a verdict was a denial as to the fact
of printing and publishing, and that the juror who gave it, in
consideration of the intent,perjured himself. Yet Junius
accomplished a signal triumph over him, in making him virtually contradict
his favourite principle, in a theory too nice for practice, when he said,
that "if, after all, they would take upon themselves to determine the law,
they might do it; but they must be very sure that they determined
according to law: for they touched their consciences, and they acted at
their peril." A declaratory act, introduced by Fox, has since put a stop to
the powers of a judge, to infringe in a similar manner the rights of juries.
[32 Geo III., c. 60.] In only two instances has lord Mansfield
been accused of wilfully perverting his judicial authority. In the
Douglas cause, it must be admitted that his address to the house was more
like the speech of an advocate, than of a judge. It is believed to have
swayed the house, although the decision was not, as in the general case,
unanimous in favour of the side taken by the law officer who gives his
opinion. Mr Stuart, the agent for the losing party, wrote letters to lord
Mansfield, solemnly charging him with improper conduct as a judge. Of these
very beautiful specimens of composition, it is scarcely possible to judge of
the merit, without a knowledge of the elaborate cause with which they are
connected; but the reasoning is clear and accurate, and the calm solemnity
of the charges, with the want of that personal asperity, or dependence on
satirical or declamatory powers, which appear in Junius, must have made
these letters keenly felt, even by a judge conscious of rectitude. The other
charge was brought against him by Junius, for admitting to bail a thief
caught in the manner, or with the stolen property, contrary to law. The
thief was a man of large property, his theft trifling, and, probably, the
consequence of a species of mental disease of not unfrequent occurrence. The
reason of granting bail was, we believe, to enable him to dispose of his
property to his family; and the act probably one of those in which the lord
chief justice stretched the law, to what he conceived a useful purpose.
A brief narrative of his
political proceedings, while on the bench, will suffice, as their merits are
matter of history. He attended the meetings of the council from 1760 to
1763, when he declined attending, from not agreeing with the measures of the
duke of Bedford. In 1765, he returned, but again retired within the same
year, on the formation of the Rockingham administration. On the dismissal of
Mr Pitt, the seals of the chancellorship of the exchequer, from which Mr
Legge had retired, were pro tempore placed in his hands. When lord
Waldegrave was directed to form a new administration, he was employed to
negotiate with the duke of Newcastle, and his opponent, Pitt; but the
conclusion of the treaty was intrusted to the earl of Hardwicke. On the
resignation of lord Hardwicke, several attempts were made to prevail on
Mansfield to succeed him as chancellor; but the timidity before explained,
or some principle not easily defined, induced him to decline the preferment.
He strongly resisted an attempt to amend the application of Habeas
Corpus, to cases not criminal, suggested from the circumstance of a
gentleman having remained for a considerable period in prison, on a
commitment for contempt of court. On this occasion, "he spoke," says Horace
Walpole, "for two hours and a half: his voice and manner, composed of
harmonious solemnity, were the least graces of his speech. I am not averse
to own that I never heard so much sense and so much oratory united." This
was an occasion of which Junius made ample use. The amendment was rejected,
and a similar legislative measure was not passed until 1816. Lord Mansfield
was not less eloquent in supporting the right of Britain to tax America,
without representation; he maintained the plea, that there was virtual,
though not nominal, representation, and urged decisive measures. "You may
abdicate," he said, "your right over the colonies. Take care, my lords, how
you do so; for such an act will be irrevocable. Proceed then, my lords, with
spirit and firmness; and when you have established your authority, it will
then be time to show your lenity." But if his views in civil politics were
narrow and bigoted, he was liberal in religious matters; and both as a judge
and a legislator, afforded toleration to all classes of dissenters, from
Roman catholics to methodists. He was indeed a greater enemy to liberal
institutions, than to liberal acts. He could bear to see the people enjoying
privileges, provided they flowed from himself; but he did not wish them to
be the custodiers of their own freedom. In spiritual matters, the authority
did not spring from the chief justice. When he left Pitt behind him in the
commons, he found one to act his part in the house of lords. Lord Camden was
his unceasing opponent; and Mansfield was often obliged to meet his attacks
with silence. He suffered severely in the riots of 1780; his house, with
considerable other property, being destroyed; while he suffered the far more
lamentable loss of all his books and manuscripts. In pursuance of a vote of
the house of commons, the treasury made an application for the particulars
and amount of his loss, for the purpose of arranging a compensation; but he
declined making any claim. In 1788, he retired from his judicial office,
when the usual address from the bar was presented to him by his countryman,
Mr Erskine, and in July, 1792, he was raised to the dignity of earl of
Mansfield, with remainder to his nephew, David viscount Stormont, whose
grandson now enjoys the title. He died on the 20th March, 1793, in the
eighty-ninth year of his age. |