English Common Law in the Age of Mansfield

By James Oldham

In the eighteenth century, the English common law courts laid the foundation that continues to support present-day Anglo-American law. Lord Mansfield, Chief Justice of the Court of King's Bench, 1756-1788, was the dominant judicial force behind these developments. In this abridgment of his two-volume book, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, James Oldham presents the fundamentals of the English common law during this period, with a detailed description of the operational features of the common law courts. This work includes revised and updated versions of the historical and analytical essays that introduced the case transcriptions in the original volumes, with each chapter focusing on a different aspect of the law.

While considerable scholarship has been devoted to the eighteenth-century English criminal trial, little attention has been given to the civil side. This book helps to fill that gap, providing an understanding of the principal body of substantive law with which America's founding fathers would have been familiar. It is an invaluable reference for practicing lawyers, scholars, and students of Anglo-American legal history.

• Language: English
• Publisher: The University of North Carolina Press
• Release date: Dec 15, 2005
• ISBN: 9780807864005

James Oldham

James Oldham is St. Thomas More Professor of Law and Legal History at Georgetown University Law Center.

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English Common Law in the Age of Mansfield

STUDIES IN LEGAL HISTORY

Published by the University of North Carolina Press in association with the American Society for Legal History

Thomas A. Green, Hendrik Hartog, and Daniel Ernst, editors

Lord Mansfield, painting by John Singleton Copley, 1783. (Courtesy of the National Portrait Gallery, London)

English Common Law in the Age of Mansfield

By James Oldham

The University of North Carolina Press

Chapel Hill and London

© 2004 The University of North Carolina Press

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The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources.

Library of Congress Cataloging-in-Publication Data

Oldham, James.

English common law in the age of Mansfield / by James Oldham.

p. cm. — (Studies in legal history)

Includes bibliographical references and index.

ISBN 0-8078-2869-6 (cloth : alk. paper) —

ISBN 0-8078-5532-4 (pbk. : alk. paper)

1. Law—England—History—18th century. 2. Mansfield, William Murray, Earl of, 1705–1793 I. Title. II. Series.

KD612.044 2004

340.5′7′094209033—dc22 2003025859

cloth 08 07 06 05 04 5 4 3 2 1

paper 08 07 06 05 04 5 4 3 2 1

Contents

Preface

Editorial Statement

Abbreviations

PART I

Mansfield and the Court of King’s Bench

1 Lord Mansfield

2 The Court of King’s Bench

PART II

Commerce and Contract

3 Contract and Quasi-Contract

4 Bankruptcy

5 Insurance

6 Negotiable Instruments

7 Usury

8 Prize and Trade

9 Intellectual Property

PART III

Crime and Tort

10 Libel

11 Restrictions on Religious Observance

12 Nuisance

13 Assault, False Imprisonment, and Offenses against Public Order and Welfare

14 Perjury

15 Negligence

16 Trespass and Trover

PART IV

Status and Property

17 Slavery

18 Marriage

19 Labor and Employment

20 Property and Wills

Conclusion

Appendix: Table of Regnal Years

Bibliography

Table of Statutes

Table of Cases

General Index

Illustrations

Term Time, or, the Lawyers All Alive in Westminster Hall 13

Councellor Double-Fee 15

The Old Bailey 39

First Day of Term 45

Lawyers in Term 46

A Peep into Westminster Hall on a Call of Serjeants 49

William Blackstone 109

A Meeting of Creditors 114

King’s Bench Prison 123

Moderate Interest 170

South front of Kenwood 203

John Wilkes 223

Sawny Wetherbeaten or Judas Iscariot 223

The Royal Chace 225

Inflammatory Arguments for and against the Test Laws 238

View of the Public Office, Bow Street, with Sir John Fielding Presiding 264

He That Debaseth Himself Shall Be Exalted 270

Granville Sharp 307

The Trial of the D. of Cumberland and Lady Grosvenor for Crim. Con. 338

Preface

In 1992 the University of North Carolina Press, in association with the American Society for Legal History, published my two-volume work entitled The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century. The two volumes were made up of three parts: transcriptions of notes taken by Lord Mansfield of jury trials he conducted across his thirty active years as Chief Justice of the Court of King’s Bench (1756–86), my own explanatory essays, and a variety of appendixes. Together the two volumes reached almost 1,700 printed pages. Because of its length and cost, the work was aimed primarily at libraries and other institutional buyers; certainly adoption for classroom use was not anticipated.

Most of the reviewers of the original work commented on the value of the explanatory essays, noting, for example, that these provide something like a modern textbook of eighteenth-century law and legal history and that there exists no comparable source. These observations led naturally to the idea of the present volume—a one-volume updated abridgment of the explanatory essays that would be agreeable to most individual budgets and feasible as well for classroom use.

Were it possible to revisit England in the year 1750, it probably would not be evident that the common law courts over the next half-century would lay many of the foundation stones that would support the Anglo-American law of the twenty-first century. Yet this proved true, both in commercial areas (such as contracts, insurance, negotiable instruments, intellectual property, and international trade) and in protecting the rights of individuals (as in the law of negligence, nuisance, religious freedom, and slavery). Though assisted by the work of able contemporary and predecessor judges, Lord Mansfield was the dominant judicial force behind these developments.

The first two chapters of this book comprise a brief biographical summary of Mansfield and a fairly detailed description of the day-to-day business and procedures of the common law courts (and to a lesser extent of the Old Bailey), especially in the conduct of jury trials. Eighteen chapters then follow that are devoted to specific substantive areas of law. The choice of topics was dictated by the number and nature of the proceedings over which Mansfield presided, in particular the jury trials. I have tried to preserve for each subject a treatment that will be informative and satisfying without requiring the reader to resort to other sources for basic understanding. Two chapters—trespass and trover, and property and wills—are radically short, which I explain as due to the lack of substantial changes in the common law of these subjects during the Mansfield years. Other chapters that could seem disproportionately large are justified by the importance to modern law of the subject matter and by the defining Mansfield imprint.

None of the transcriptions of trial notes contained in the original two-volume work is reproduced here, although many of those cases are discussed and cited. I have, however, included numerous references to and descriptions of relevant books and articles that have appeared in the past decade. Also, I have included references to additional documentary sources that I have examined since 1992, mainly sources held by the libraries of three of the Inns of Court in London—Lincoln’s Inn, the Middle Temple, and the Inner Temple.

I am grateful to the many colleagues who encouraged the idea of this book and who wrote to the Press lending their support. In particular I thank John Baker, John Beattie, Henry Bourguignon, Robert Gordon, Stanley Katz, John Langbein, Kent Newmyer, John Orth, and Brian Simpson. Overseeing the project with unerring judgment and sound advice was Tom Green, who continues his longstanding, extraordinarily constructive service as coeditor of the Studies in Legal History series.

In the years intervening since the publication in 1992 of the original two-volume work, additional documentary research in London has been made possible by sabbatical funding and summer research grants from the Georgetown University Law Center. Also, when the press indicated that it hoped for a subvention for this work, the Law Center’s Dean, Judith Areen, immediately supplied the necessary funds. Dean Areen has been a steadfast supporter of scholarly work, and I am in her debt.

In the task of abridging the essay chapters and conforming to the guidelines followed by the Press, I have had indispensable help from Faculty Assistant Diane Hedgecock, Faculty Manuscript Editor Anna Selden, and Research Assistants Avedis Seferian, Cynthia Fleming, and Ibie Adeyeye. For library and bibliographical queries, Special Collections Librarian Laura Bédard, as always, has provided invaluable help, ably assisted by Special Collections Assistant Erin Kidwell.

At the University of North Carolina Press, I thank Chuck Grench and Amanda McMillan for their responsible management of this unique abridgment and for pacifying me when I grew impatient. I was fortunate also in that the final preproduction phase, copyediting, was handled by Assistant Managing Editor Paula Wald and copyeditor Julie Bush. Paula copyedited the original two-volume manuscript, and in the present work, Julie was her capable successor.

Finally, my thanks to indexer Barbara Wilcie Kern. Without a careful index, the effectiveness of a work of legal history is much diminished. As in the original two-volume work, Barbara has given users of this volume easy access by her meticulous, detailed index entries.

Editorial Statement

The following editorial principles and decisions were applied in preparing this work:

1. During the late eighteenth century, some subject areas were developing or changing more rapidly than others. For this reason, there is greater emphasis in this book on commercial topics such as insurance and contract than on subjects such as real property and wills. Also emphasized are subject areas of particular interest to the modern reader such as slavery, religious toleration, seditious libel, collective action by workers, married women’s property rights, breach of warranty (a subdivision of contract), negligence, and nuisance.

2. Throughout this work, I follow guidelines in The Chicago Manual of Style for the citation of primary and secondary sources. Some invention was necessary, however, for citing the cases in Mansfield’s trial notes. In the form that I use—for example, 449 nb 35—the first number signifies the volume and the last number the page within a given notebook. Volume numbers for the notebooks were assigned by the National Register of Archives (Scotland). The first volume number assigned was 449.

3. For printed cases, I follow the usual conventions for citation to the English nominative reports, as reflected in the full reprint of the English Reports. In the footnotes I cite only the reports of cases in the nominative reports, and usually only to the best-known versions for cases that have multiple reports in the nominatives. One exception is in chapter 17, where all known reports of important slave cases are of interest and are cited. Also, in the Table of Cases, I give page and volume cross-references to the English Reports for all cases cited in the book that appear in the English Reports.

4. For English statutes through 1713, I use Statutes of the Realm, 12 vols. (London: G. Eyere and A. Strahan, 1810–22; reprint, London: Dawson of Pall Mall, 1963). According to Sir William Holdsworth, this edition is the only one that can be relied upon for historical purposes, although Percy Winfield observed, That it might have been much better than it actually was, without making impossible demands on the editors, is an unfortunate fact (W. S. Holdsworth, Sources and Literature of English Law [Oxford: Clarendon, 1925], 58; P. H. Winfield, The Chief Sources of English Legal History [Cambridge: Harvard University Press, 1925], 92). Using Statutes of the Realm creates some difficulty, because there are occasional variances between the regnal years and chapter numbers given and those used in the printed statute compilations in circulation in the eighteenth century. When this occurs in statutory citations in this work, the location of a cited statute in the common printed editions is given in brackets after the citation to Statutes of the Realm.

Statutes of the Realm was prepared pursuant to a parliamentary commission but covers statutes only to the end of the reign of Queen Anne. The elephant folio 1963 reprint should be available in most law libraries. For the remainder of the eighteenth century after Queen Anne, I cite O. Ruff-head, ed., The Statutes at Large, From Magna Charta to the . . . 39th Year of the Reign of King George the Third, Inclusive, 18 vols. (London: M. Baskett et al., 1763–99). Thereafter, I use D. Pickering and G. K. Richards, eds., Statutes at Large from Magna Charta to the End of the Eleventh Parliament of Great Britain, Anno 1761–1869, 109 vols. (Cambridge: Printed by J. Bentham for C. Bathurst, 1762–1869).

5. Two major sources cited throughout this work are William Blackstone’s Commentaries on the Law of England and William Holdsworth’s History of English Law. I cite the first edition of the Commentaries, except in chapter 17, in which Edward Christian’s commentary to the thirteenth edition is quoted. Because Holdsworth’s History of English Law was published over a span of sixty-three years, for the sake of consistency, citations refer to Methuen, Sweet and Maxwell’s 1966 reprint.

6. For the illustrations in this work, I supply narrative captions to enable the reader to understand the relevance of the illustration and its content. Some of the satirical caricatures reproduced would be mysterious without explanation, but this is easily remedied for the caricatures that are in the Dorothy George collection at the British Museum Department of Prints and Drawings. This collection is indexed in Dr. Mary Dorothy George’s Catalogue of Political and Personal Satires. George’s phenomenal descriptive narrative explains virtually every known character, characteristic, and nuance of the caricatures in the collection. Those illustrations with captions that cite a DG number come from the Dorothy George collection, and the captions for those illustrations paraphrase the descriptive material in the Catalogue.

7. Where necessary for comprehension or clarity, I have modernized spelling, capitalization, and punctuation in quotations from case reports and documentary sources.

Abbreviations

The following abbreviations are used throughout. Standard law reports cited in this work are abbreviated as in the English Reports and therefore are not included in this list.

Add. MSS Additional Manuscripts, Manuscript Division, British Library, London. APB Ashurst Paper Books, Dampier Manuscripts, Lincoln’s Inn Library, London. BPB Buller Paper Books, Dampier Manuscripts, Lincoln’s Inn Library, London. Cald. Caldecott’s Reports, or, T. Caldecott, Reports of Cases Relative to the Duty and Office of a Justice of the Peace From Michaelmas Term 1776, Inclusive to Trinity Term 1785, Inclusive (London: For P. Uriel, 1786–97). CRO Corporation of London Records Office. DG M. D. George, Catalogue of Prints and Drawings in the British Museum, ed. F. G. Stephens, vols. 1–4 (in 5 vols.); Catalogue of Political and Personal Satires Preserved in the Department of Prints and Drawings in the British Museum, vols. 5–11 (London: British Museum, [1870]–1954). MMSS I James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, vol. 1 (Chapel Hill: University of North Carolina Press, 1992). MMSS II James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, vol. 2 (Chapel Hill: University of North Carolina Press, 1992). OED The Compact Edition of the Oxford English Dictionary, 2 vols. (Oxford: Oxford University Press, 1971). PRO Public Record Office, London. ASSI Assize records. KB King’s Bench records. SP State Papers. TS Treasury Solicitor’s Papers. S.T. State Trials, or T. B. Howell, ed., Cobbett’s Complete Collection of State Trials and Proceedings for High Treason, 33 vols. (London: R. Bagshaw and other publishers, 1809–26).

Part One

Mansfield and the Court of King’s Bench

Chapter One

Lord Mansfield

At the outset of this study of English common law at the time and in the light of Mansfield, an introduction should be given to the man and to the court over which he presided, through which he reshaped the law. Some familiarity with Mansfield’s attributes, and with the stature and procedures of the Court of King’s Bench, will also be helpful in understanding the developments in the various subject areas that are the main body of this work.

Known to his family as Will, Mansfield was born William Murray on 2 March 1705¹ in Perth, Scotland, at the hereditary home, Scone Palace. There were fourteen siblings, six brothers and eight sisters, but William alone emerged as a prominent and influential public officer in England and became very rich. Both of these stations he reached by indefatigable effort and genuine ability. His early years at the bar probably were boosted by Scottish patronage, and he appears to have enjoyed fortuitous financial help while at Oxford,² but by and large he made his own way.

William traveled by horseback from Scotland to London at age fourteen, where he enrolled at Westminster School. He excelled, becoming a prize-winning King’s Scholar. From there he progressed to Christ Church, Oxford, where he threw himself into classical studies, translating Cicero’s Latin orations into English and back again.

Murray’s attachment to the law began early. He was entered in Lincoln’s Inn in April 1724 while still an undergraduate at Oxford.³ After receiving his B.A. in 1727, he took up studies at Lincoln’s Inn until called to the bar in November 1730.⁴ Reading law at Lincoln’s Inn was, by the 1720s, largely self-study. The only formal requirements were to dine in the hall five days each term and to read the first sentence of a paper prepared for him by the steward, a meaningless formal exercise conducted once a term.⁵ Nevertheless, Murray took his time at Oxford and at Lincoln’s Inn seriously, exhibiting two characteristics that served him all his life: a readiness to perform the long hours of drudgery and apprenticeship necessary to develop a thorough grounding in a subject or a skill, and an irrepressible intellectual curiosity. Lord Campbell says that while at Oxford, he had attended lectures on the Pandects of Justinian, which gave him a permanent taste for that noble system of jurisprudence.⁶ Letters he wrote at different stages of his life on the study of ancient and modern history⁷ reveal his deep familiarity with classical works.⁸ He also studied oratory, even, while a student at Lincoln’s Inn, practicing the art to the point of speaking in front of a mirror while being coached by his friend Alexander Pope.⁹ Still later, but while a newcomer to the bench, Mansfield wrote to his brother judge, John Eardley Wilmot, about Taylor v. Horde,¹⁰ observing, While the Company is at cards I ply my Rubbers at this Work, not the pleasantest in the World but what must be done, I love to do, & have it over.¹¹

Murray was called to the bar 23 November 1730, after spending the long vacation on the Continent.¹² Very shortly he established himself in chambers at No. 5 King’s Bench Walk in the Inner Temple. How he prospered during his early time at the bar is not fully known, but by his own account, after his success in December 1737 as junior counsel for William Sloper, accused correspondent in a criminal conversation case brought by Theophilus Cibber,business poured in upon me on all sides.¹³ During his first eight years of practice, his earliest business of consequence appears to have come from Scottish sources, such as his appearances as junior counsel in a number of Scottish appeals in the House of Lords in 1733 and 1734.¹⁴

Other cases that sustained Murray during this period were colonial disputes heard before the Commissioners for Trade and Plantations (the Board of Trade). The journal of the Board of Trade reveals appearances by Murray in the prolonged dispute from 1734 to 1737 between the Penns and Lord Baltimore over the boundaries of Maryland,¹⁵ and in 1734–35 as counsel for the agent of New Hampshire in a boundary dispute with Massachusetts Bay.¹⁶ He represented the trustees of a Georgia company in a 1736 dispute with South Carolina over laws regulating the India trade,¹⁷ and in 1737–38, he acted for a Rhode Island agent in a boundary dispute with Massachusetts Bay.¹⁸

Also during the 1730s, Murray appeared frequently before the Bar of the House of Commons and its committees. Eclipsing in importance any previous activity, however, was the affair of Captain Porteous. Riots in Edinburgh had resulted in the vigilante-style lynching of Porteous, a Captain of the Guard who had ordered his men to fire on an unruly crowd attending an execution in 1736.¹⁹ Several in the crowd were killed; Porteous was tried and sentenced to death but was afterward reprieved by Queen Caroline. The reprieve engendered the riots, and in London in April 1737, a retributory bill was introduced in Parliament to put the city of Edinburgh under certain disabilities. Murray acted as counsel for the Lord Provost of Edinburgh. Ultimately, the city was given only nominal punishment, and Murray’s role as counsel was widely praised.

In light of the foregoing, it is clear that Murray’s characterization of the Theophilus Cibber case as a turning point was overstated. Campbell was correct in observing that Murray’s reputation was well established by then, and a variety of business was steadily coming his way. Murray does not appear to have had a moment of self-doubt; by 1738 his career was strongly launched.

On 20 September 1738, Murray and Elizabeth Finch were married. Elizabeth’s grandfather (who died before she was born) was Heneage Finch, first Earl of Nottingham, the great seventeenth-century Lord Chancellor.²⁰ Like Murray, Heneage Finch was educated at Westminster School and Christ Church, Oxford. Granddaughter Elizabeth was an intelligent, sociable woman from a distinguished family who shared with Murray an evidently happy, childless marriage of forty-six years until her death in 1784.

From about the time of his marriage, Murray began to enjoy an increasing flow of business in the Court of Chancery. As revealed in Atkyns’s Reports,²¹ Murray appeared in dozens of cases before Lord Hardwicke. Murray’s later inclination to reach for equitable notions in his King’s Bench decisions²² has been linked to this practice and to his strong admiration for Hardwicke.²³

Possessed of widely recognized talent, Murray was positioned to be drawn in by the tentacles of patronage of the Duke of Newcastle. When this happened, the ambitious Murray did not resist. In 1742, Newcastle contrived Sir John Strange’s resignation as Solicitor General in order to make room for Murray; Murray was appointed and at the same time took his seat in the House of Commons representing one of Newcastle’s many pocket boroughs, Boroughbridge. As Solicitor General, he became allied, as a law officer for the Crown, with Attorney General Dudley Ryder. Ryder had been Attorney General since 1737 and would continue until 1754 when he became Chief Justice of the Court of King’s Bench, elevating Murray to Attorney General. Because Ryder was a copious shorthand diarist and note-taker, it is possible to trace many aspects of the dozen years he and Murray spent together as law officers.²⁴

The working relationship of the Attorney General and the Solicitor General was a close one. The law officers were called upon for an array of services. Principally these included the giving of legal opinions on questions of domestic and international law, decisions about initiating and handling litigation, and the drafting of proposed bills for consideration in Parliament. Requests for these services came, typically, from the Duke of Newcastle and from Lord Chancellor Hardwicke during the Ryder-Murray years. According to Ryder’s diaries,²⁵ these requests invariably called for joint opinions of the Attorney General (the Attorney) and the Solicitor General (the Solicitor). Murray would do the initial drafting, submitting the document to Ryder for annotation, but occasionally Ryder would set out his views in some detail. One episode involving Ryder and Murray has been featured by Mansfield’s biographers. According to Campbell, The King of Prussia . . . had sought to remodel the law of nations in a way that would have rendered naval superiority in time of war of little avail.²⁶ A memorial was prepared by the Prussian minister spelling out details of the Prussian position, such as denying the validity of all the proceedings in the Courts of Admiralty of England for a condemnation of neutral ships or goods by reason of an alleged violation of the duties of neutrality.²⁷ To this, a masterly answer was returned, one so thorough and forceful that the Prussians submitted. According to John Holliday, Mansfield frequently declared to his friends that it was entirely his own composition, although it bears the signature of two distinguished civilians, and of his colleague in office, as well as his own.²⁸ In his diary for 22 December 1752, Ryder described a meeting of the four authors at which we agreed that the Solicitor should prepare a plan, then go to Dr. Lee to add authority, then to come to me and Dr. Paul. Then Ryder set out a detailed four-point plan of his own that he proposed, complete with subdivisions and explanatory comments. Except in the loosest outline, Ryder’s plan was not adopted by Murray, but Ryder later noted (2 January 1753), I returned the draft of the report on the Prussian commission with my observations in the margin and alterations of the draft of conclusions. Thus, even granting Murray the principal authorship, the product appears to have been more of a joint effort than Murray (Mansfield) later represented.

Another episode attended by Mansfield’s biographers was the Jacobite accusation that threatened to halt his advancement on the eve of his elevation to King’s Bench. Murray’s family had strong Jacobite connections, and while a youthful allegiance to the cause by Murray is certain, the controversial question was whether Murray carried any such early allegiance into adulthood.

In 1753 the Recorder of Newcastle, Christopher Fawcett, sponsored by Lord Ravensworth, made public accusations that Murray and two others (Murray’s friend Andrew Stone and another classmate from Westminster School) had some twenty years earlier, in Fawcett’s presence, toasted the health of the Old Pretender, James Edward Stuart. Eventually Fawcett’s eyewitness account crumbled and the accused were exonerated. Whether Murray actually behaved as Fawcett asserted will never be known.

Fifteen months after the Fawcett affair, Dudley Ryder died. Murray was Ryder’s natural successor, both by tradition (as the incumbent Attorney General) and by ability. There were two obstacles—anxiety by the Duke of Newcastle about losing forceful support in the House of Commons and Murray’s insistence that the appointment be accompanied by a peerage. The Duke of Newcastle served up as many temptations as he could to induce Murray to remain in the House of Commons, even if for a short time, all to no avail.²⁹ Murray also remained steadfast about the peerage.³⁰ There was royal resistance to any automatic linkage between judicial office and a peerage. When William Fortescue, Master of the Rolls, died in December 1749, Ryder was offered the job; Ryder requested a peerage with the appointment and recorded the following reaction of Henry Pelham to his request: And as to peerage, he foresaw difficulty with the King. Objections would be made that a new office is brought into the peerage, which would give expectations to future masters of the rolls, and make a number of Lords from the law. He said he did not know but the King might have another difficulty arising from Murray’s being to succeed to my office and the attachment of his family.³¹. But Murray eventually overcame the resistance of George II.³². Here, as always, Murray was clear about his goals and was supremely self-confident of achieving them. Also, he may have been hardened in his resolve by having watched for two years the pathetic wheedling by Ryder to persuade Newcastle to fulfill his promise to get Ryder a peerage without delay after Ryder’s appointment as Chief Justice of the Court of King’s Bench.³³

On taking office as Chief Justice of the Court of King’s Bench, Mansfield embarked on a long and extraordinarily influential judicial career. In the main his energies were devoted to adjudicated cases, and the results will be examined in chapters that follow. It is important to bear in mind, however, that Mansfield continued to draft and sponsor legislation as a member of the House of Lords while he was Chief Justice. Mansfield’s views praising the intrinsic value of the common law over legislation have been publicized,³⁴ but he did not ignore the advantages of legislation. He appreciated, for example, the immediacy and reach of a statute as a means of regulating public behavior. At the same time, he stated in a speech in the House of Lords his view never to propose a new law when there was an existing remedy adequate to the removal or correction of the evil complained of.³⁵

Nevertheless, Mansfield on occasion found existing remedies inadequate and in other cases found a need for legislation to impose orderly procedures. For example, it was reported that Mansfield, Wedderburn, and Mansfield’s nephew Sir John Lindsay were to draw up a bill to regulate the proceedings in the courts of justice in Bengal.³⁶ And Lloyd’s Evening Post and British Chronicle for 26 May 1773 noted a trip by Lord Camden from the House of Lords to Westminster Hall to consult with Mansfield on a Bill for the Better Regulation of Private Madhouses.³⁷ A few weeks later Lloyd’s Evening Post reported that Lord Mansfield is said to be applying all his leisure hours in revising the Penal Laws of this kingdom, the result of which is to be submitted to Parliament at their next meeting.³⁸ Other examples include a notice in 1777 of Mansfield’s work on a bill for the protection of young women from seduction³⁹ and of a proposed clause in the Insolvency Act to curtail fraudulent claimants.⁴⁰ In the waning moments of Mansfield’s active judicial years, the London Chronicle reported a pretty numerous meeting of Gentlemen of the Long Robe at Lord Mansfield’s house in Lincoln’s Inn Fields where it was generally agreed that a Bill be prepared ready to be introduced to Parliament next sessions as soon as possible after the meeting of the Houses, to make perjury in any Court of Justice, &c. a capital offence, punishable with death.⁴¹

On the Court of King’s Bench, Mansfield was in his element. Despite periods of public controversy, especially when seditious libel cases arose, Mansfield presided as Chief Justice for over thirty years, and by the time he was done he had established the basic principles that continue to govern the mercantile energies of England and America down to the present day. As will be shown in the chapters ahead, almost no feature of the evolving common law escaped his shaping influence.

Lord Mansfield’s extraordinary stamina in his professional work astonished observers, the more so as it continued into the 1780s.⁴² For example, the seventy-five-year-old Mansfield, presiding over the trial of Lord George Gordon for his responsibility in the Gordon Riots, commenced the hearing at 9 A.M. and continued without interruption until he concluded two hours of summation to the jury at 4:30 A.M. the next morning.⁴³ Another trait exhibiting Mansfield’s physical vigor was his love of horseback riding. For him, the practice was therapeutic. From Kenwood he wrote to his nephew Stormont on 10 October 1777, If our Moments are anxious the Weather is very fine & I try to ride away care every day.⁴⁴ Not only was this his mode of transportation at age fourteen from Edinburgh to London, it was thereafter the method of travel that Mansfield frequently preferred. Joseph Cradock in his memoirs recalled that only once did Mansfield honor the Midland circuit with his presence,⁴⁵ but instead of joining the cavalcade, Mansfield merely stole into Leicester late at night, on a saddle-horse.⁴⁶ Lord Mansfield wrote to John Eardley Wilmot from Kenwood on 29 December 1757, I shall hardly be able to ride to Town a morning before next Week. Then you will give me leave to Breakfast with you in my Boots.⁴⁷ And in a letter to Andrew Stone, 16 August 1741, Murray wrote, I had the good luck to meet My Lord Chancellor yesterday by Accident, & talked to him some minutes a Horseback.⁴⁸

In March 1781, the London Chronicle noted an indisposition in Lord Mansfield, reporting that his Lordship’s illness was occasioned by a fall from his horse on Wednesday last, whereby his right shoulder was much injured, and he was otherwise hurt.⁴⁹ Eventually, in November 1785 (at the age of eighty), the London Chronicle reported that Lord Mansfield has been obliged to give up the pleasure of riding on horseback owing to a weakness in his wrists.⁵⁰

Mansfield continued to perform the duties of Chief Justice until the spring of 1786. He remained in office until 4 June 1788, when he was succeeded by Lord Kenyon. After his resignation, he lived in retirement at Kenwood until his death on 2 March 1793.

Notes

1. All dates are converted to the new-style (Gregorian) calendar, which took effect in 1752. See C. R. Cheney, ed., Handbook of Dates for Students of English History (London: Royal Historical Society, 1978), 1–11.

2. See J. Campbell, The Lives of the Chief Justices of England, 3 vols. (London: John Murray, 1849–57), 2:336–39; E. Heward, Lord Mansfield (Chichester and London: Barry Rose, 1979), 16–21.

3. Campbell, Chief Justices, 2:178.

4. Murray was also awarded an M.A. from Oxford in June 1730.

5. Campbell, Chief Justices, 2:327.

6. Ibid.

7. J. Holliday, The Life of William Late Earl of Mansfield (London: For P. Elmsly, D. Bremner, T. Cadell, Jr., W. Davies, et al., 1797), 12–23, reprinting letters published in the European Magazine, and London Review, 1792, fols. 182 and 257.

8. J. Buchan wrote: We do not suppose Mansfield to have been a classical scholar of the stamp of Carteret, but he had the respectable stock in trade of an industrious Oxford man; and we are told that once, in his extreme old age, he defended the use of a Greek word in Burke by quoting offhand a long passage from Demosthenes. In history, on the other hand, and especially in the history of law, few of his contemporaries approached him. Burke had the same synoptic view, the same Catholic breadth of knowledge, but Mansfield had the more exact and critical scholarship (Some Eighteenth-Century Byways and Other Essays [Edinburgh: W. Blackwood and Sons, 1908], 87).

9. Campbell, Chief Justices, 2:330; Holliday, Mansfield, 24–25.

10. 1 Burr. 60 (1757).

11. Add. MSS. 9828, fol. 33, letter, 29 Dec. 1757.

12. Holliday, Mansfield, 11. Only three times in Murray’s long life is he known to have ventured out of the country—first, while a student at Oxford, to visit his brother James in Paris; second, the trip before admittance to the bar; and third, to France in 1775.

13. Holliday, Life of Mansfield, 36.

14. Campbell, Chief Justices, 2:259–60.

15. Murray was counsel for the Penns.

16. Journal of the Commissioners for Trade and Plantations 4 (Jan. 1728–29 to Dec. 1734): 429; 5 (1734–35 to 1741): 11, 17.

17. J. P. Egmont, Manuscripts of the Earl of Egmont: Diary of Viscount Percival Afterwards First Earl of Egmont, Historical Manuscripts Commission, 3 vols. (London: HMSO, 1920–23), 2:320 (letter, 17 Dec. 1736).

18. Journal of the Commissioners for Trade and Plantations 5 (1734–35 to 1741): 236–37, 239.

19. The story is told by Sir Walter Scott in his novel, The Heart of Midlothian.

20. See generally D. E. C. Yale, ed., Lord Nottingham’s Chancery Cases, 2 vols. Publications of the Selden Society, vols. 73, 79 (London: B. Quaritch, 1957–61), 1:ix–xxxvi.

21. Also in West, temp. Hardwicke.

22. This tendency was one point of attack in the Junius letters directed at Mansfield. See chapter 2, text at n. 61. Campbell denied that Mansfield did anything improper in this way. Campbell, Chief Justices, 2:317.

23. After Hardwicke’s retirement from the bench, Mansfield borrowed from him a manuscript copy of one of Hardwicke’s decisions, and in his letter returning the manuscript, Mansfield wrote that Hardwicke’s reasoning put the general Law of Property . . . upon so consistent a Foundation, free from ev’ry Mischief which sprung from the Narrow Plan applied to Uses, that I have ever since formed from it a System to Myself (Add. MSS. 35,595, fol. 312, letter, 10 Dec. 1758).

24. See generally J. C. Oldham, The Work of Ryder and Murray as Law Officers of the Crown, in Legal Record and Historical Reality, ed. T. G. Watkin (London: Hambledon, 1989), 157–58. For details about Ryder’s diaries and notes and some of their transcriptions, see J. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, University of Chicago Law Review 50 (1983): 1, 6–10, 18–21, 26–30, 134–35; P. D. G. Thomas, ed., Parliamentary Diaries of Nathaniel Ryder, 1764–67, in Camden Miscellany, vol. 23, Camden Fourth Series, vol. 7 (London: Royal Historical Society, n.d.), 229–32; and R. Sedgwick, The House of Commons, 1715–1754, 2 vols. (London: Oxford University Press, 1970), 1: 90–91. Most of the Ryder diaries cited in this chapter are unpublished transcriptions by K. L. Perrin commissioned during the 1940s and 1950s by Arthur Vanderbilt and held at the Harrowby Manuscript Trust, Sandon Hall, Stafford, England. They are not among those on deposit at Lincoln’s Inn Library, London (described by Langbein, Eighteenth-Century Criminal Trial, 9). They are used with the kind permission of William R. Vanderbilt and the Harrowby Manuscript Trust.

25. Especially useful is Ryder’s Legal and Political Diary, 1746–49.

26. Campbell, Chief Justices, 2:376.

27. Ibid., 377.

28. Holliday, Mansfield, 424. The civilians referred to were civil lawyers Dr. Lee and Dr. Paul.

29. See Campbell, Chief Justices, 2:387–89, for details.

30. Ryder, Diary, 16 December 1749.

31. Ibid.

32. Murray had the double impediment of the aftertaste of the Fawcett affair and the general handicap of being a Scot. When various names were being considered for Solicitor General upon Murray’s advancement to the Attorney Generalship, Hume Campbell was eliminated because, according to Ryder, The King said he would not have two Scots attorney and Solicitor General (ibid., 8 Apr. 1754).

33. After two years of badgering Newcastle, the Lord Chancellor, and others (Ryder’s diary gives chapter and verse), Ryder succeeded, and George II signed his patent of peerage on 24 May 1756. That evening, Ryder fell ill, and by the next morning, he was dead. See the scandalous broadside, quoted by Langbein, that exulted in the failure of the peerage (Eighteenth-Century Criminal Trial, 8–9 n. 18).

34. See, e.g., Heward, Lord Mansfield, 63, quoting Murray’s early remarks in Omychund v. Barker, 1 Atk. 22, 33 (1744).

35. Heward, Lord Mansfield, 63–64; W. Cobbett and J. Wright, eds., The Parliamentary History of England: From the Earliest to the Year 1803, 36 vols. (London: T. C. Hansard for Longman et al., 1806–20), 21:448.

36. London Evening Post, 31 Mar. 1772.

37. See An Act Regulating Madhouses, 14 Geo. 3, c. 49.

38. Lloyd’s Evening Post and British Chronicle, 16 July 1773. No such bill appears to have been introduced.

39. Morning Chronicle, 2 Aug. 1777.

40. London Chronicle, 23 Apr. 1781. For the Insolvency Act, see 21 Geo. 3, c. 63. The newspaper notice read as follows: "It is said Lord Mansfield intends immediately after the recess, to move for a provisionary clause in the Insolvent Act, wherein all fraudulent claimants will be cut off from the possibility of ever receiving benefit from it; and furthermore to propose to their Lordships, that all such persons as shall be convicted of having obtained a certificate in the present instance, improperly, be subject to close confinement for a certain term, and rendered incapable of ever benefitting by any future act of Insolvency." The attempt did not succeed, but Mansfield’s views are fully reported in Cobbett and Wright, eds., Parliamentary History, 22:628–31.

41. London Chronicle, 23 Nov. 1786. No such statute was enacted.

42. London Chronicle, 14 Nov. 1785 and 20 Feb. and 30 June 1786.

43. Morning Chronicle, 7 Feb. 1781; London Chronicle, 7 Feb. 1781.

44. Scone Palace MSS, Second Series, Bundle 641.

45. See MMSS II, appendix B. The occasion was July 1763.

46. J. Cradock, Literary and Miscellaneous Memoirs, 4 vols. (London: J. B. Nichols, 1826), 1:99.

47. Add. MSS. 9828, fol. 33.

48. Ibid. 33,065, fol. 438.

49. London Chronicle, 26 Mar. 1781.

50. London Chronicle, 14 Nov. 1785.

Chapter Two

The Court of King’s Bench

Because of the centralized control of the royal courts, the system of justice in England in the late eighteenth century had a superficial simplicity. In fact, the layers at which justice was administered were many. Patrick Colquhoun in his Treatise on the Police of the Metropolis, published in 1796, gave a detailed statistical breakdown of the courts and their officials at work in the metropolitan area of London. In addition to the Old Bailey, he identified nine supreme courts, four ecclesiastical courts, seventeen courts for the City of London, eight courts for the City of Westminster, fourteen courts in the part of the Metropolis, lying within the County of Middlesex, and eight courts in the Borough of Southwark in Surrey.¹ Functionally, other than the supreme courts and the ecclesiastical courts, these included eighteen inferior courts for small debts, one court of oyer and terminer and gaol delivery, four courts of general and quarter sessions of the peace, ten courts of petty sessions for the police, and five coroners’courts. Together, they were serviced by 753 court officers.²

Among the supreme courts were the Court of King’s Bench (Bancus Regis, B.R.), the Court of Common Pleas (Common Bench, C.B.), and the Court of Exchequer. Four judges sat on each of these three courts, and together the twelve central court judges, although comprising a small part of the total judicial system, superintended the litigation that gave form to the body of common law to which the entire system responded.

Lord Mansfield was sworn in as Chief Justice of the Court of King’s Bench on Monday, 8 November 1756, having earlier that day been called (as was required by custom)³ as a Serjeant-at-Law. Once on King’s Bench, Mansfield wasted no time in initiating change. The first steps were procedural,⁴ but his strong substantive imprimatur—especially on commercial themes—was soon to follow, and it was pervasive.

Term Time, or, the Lawyers All Alive in Westminster Hall, engraving by Robert Dighton, 1785. Lord Mansfield presides with two puisne justices (probably Edward Willes on the left and Francis Buller on the right) amid a commotion of lawyers, with part of the jury in view. (Courtesy of the Treasurer and Masters of the Bench at Lincoln’s Inn, London)

In regulating the flow of business in his court, Mansfield was notorious for his unremitting work habits. Heward recounts the response of Serjeant Davy⁵ to Mansfield’s announced intention to sit on Good Friday: Your Lordship will be the first judge to have done so since Pontius Pilate.⁶ Eventually, the bar became exasperated. It was reported in the Morning Chronicle for 22 May 1782 that, on the Monday before, Mansfield sat in Westminster hall unattended by any Gentlemen of the Bar. The explanation was that Mansfield had announced on Saturday that because of the large number of cases, he intended to sit on Monday, despite the custom to adjourn the sittings during the first days of the Whitsuntide week and despite a reminder from Barrister James Wallace about the custom. According to the Chronicle, In consequence of this the Gentlemen of the Bar formed a general agreement not to attend the Court on Monday, notwithstanding which his Lordship proceeded in the business of the day, and made the Attornies [the solicitors] conduct their own causes, and examine their own witnesses.

Mansfield’s impatience to keep cases moving sometimes led him to read a newspaper or to write personal letters during the conduct of jury trials. This behavior was viewed with scorn by some, but by others it was interpreted as a message to expedite. And despite his seeming inattention, everyone agreed that Mansfield missed nothing, invariably summarizing the case for the jury with completeness and accuracy.

In the Court of King’s Bench, the judges and the leading barristers were known to each other and they were few in number. As observed by Peter Brown, Only some twenty to thirty barristers shared the remunerative practice afforded by cases which reached the Court of King’s Bench for Mansfield’s decision. Counsel and the judges must have acquired an intimate knowledge of each other’s habits of mind, like the Fellows of an Oxford college.⁷ Near the end of the century, Colquhoun counted eight in the category of King’s Serjeants, Attorney and Solicitor General and King’s Advocate; twelve Serjeants at Law; and twenty-five King’s Counsel. There were, however, over four hundred barristers dispersed throughout the metropolitan area of London.⁸

Councellor Double-Fee. Fletcher Norton, a leading barrister who served as Solicitor General and Attorney General in the 1760s, is shown in a counselor’s robes and wig, stretching forth his palms to receive a fee from both the plaintiff and the defendant in a lawsuit. He declares that he is Open to all Parties, and Open to all is written on the palm of each of his hands. On the wainscot behind Norton hang three portraits of Chief Justices: Ryder, Jeffries, and Mansfield (who is shown wearing a Scotch bonnet above his state wig). (Courtesy of the Library of Congress, Washington, D.C.)

Mansfield and His Juries

Responding to the charge that Lord Mansfield did not possess the high regard that any well-bred Englishman ought to harbor for trial by jury, Charles Butler observed, Upon what this charge is founded, does not appear: between him and his Jury there never was the slightest difference of opinion. He treated them with unvaried attention and respect; they always shewed him the utmost deference. It is remembered, that, no part of his office was so agreeable to him as attending the trials at Guildhall.⁹ Butler was correct in his basic point—that the relationship between Mansfield and his jury was, on the whole, harmonious¹⁰—but there was, nevertheless, some basis for the charge to which Butler was responding.

At about the time of his retirement as Chief Justice, Mansfield was asked for his opinion on a pamphlet just published recommending the introduction of jury trial in Scotland in certain types of cases. Lord Campbell quoted in its entirety a memorandum that Mansfield dictated in response, in which Mansfield concluded that the partial introduction of trials by jury seems to me big with infinite mischief, and will produce much litigation.¹¹ Mansfield pointed out that a great deal of law and equity in England has arisen to regulate the course and obviate the inconveniences which attend this mode of trial. The main inconvenience identified by Mansfield was the problem of differentiating between law and fact, but he also noted, as troublesome, bills of exception, special verdicts, attaints, challenges, and new trials. Mansfield thought it inadvisable for Scotland to adopt all the law and equity now in use in England relative to trials by jury, but he acknowledged that giving it to the desire of both parties might be plausible.

Although Lord Mansfield perceived the inefficiencies and inconveniences of trial by jury, his relationship with juries in trials that he conducted was usually cooperative, as can be shown by his jury instructions, for example, those printed in the pamphlet version of Howe v. Dive:¹² Gentlemen of the Jury, You attend on a question that must be very disagreeable both to you and to me; and it has become more entangled by the great latitude that has been taken on both sides at the bar; for a great many things were opened, and a great many things have been gone into, that you must forget as fast as you can, for you must try the cause upon the evidence.¹³ Mansfield then proceeded to differentiate carefully between the considerable fiction introduced by the lawyers (for everything is fiction that is not proved) and the small sum of uncontradicted testimony heard by the jurors. They responded agreeably to Lord Mansfield’s view of the case, and upon the plaintiff’s request that his verdict of 550 pounds be given to whatever charity Lord Mansfield might designate, Mansfield complimented the plaintiff and turned back to the jury, stating: You are the properest branch to direct to what charity it should go.¹⁴

The extent to which Mansfield agreed with the verdicts of his juries can be discerned from his trial notes. Customarily, Mansfield made a notation whenever he thought the verdict wrong, and the trial notes reflect a number of examples. They represent, however, a very small percentage of the thousands of cases recorded in the notebooks. Occasionally Mansfield specifically endorsed a jury verdict. In Brocas v. Burt,¹⁵ for example, the jury brought in a verdict of two thousand pounds for the plaintiff in a criminal conversation case, after which Mansfield wrote, Very large [verdict], but a good Jury. They went out shamed sick to her husband. [Defendant and Plaintiff’s wife] lay [in] a separate bed [in] his own house.

At other times, Mansfield indicated his disapproval of the jury verdict. On rare occasions, this would result in a new trial. For example, in Gretton v. Crossweller,¹⁶ an action in trespass-on-the-case for taking unreasonable distress for rent, Mansfield wrote in response to the jury verdict for ten pounds, A most shameful Verdict, there was not a farthing Damage sustained by the Excess of the Distress. And in Hargrave v. Le Breton,¹⁷ Mansfield was so sure the verdict would be for the defendant that he entered Defendant in his trial notes, then crossed it out, entered a verdict for the plaintiff for fifty pounds, and wrote, very wrong Verdict.

A common ground for a motion for new trial was that the jury verdict was against the weight of the evidence. Successful motions of this type were not uncommon. But in some cases, Lord Mansfield registered his disagreement with the verdict with no indication that a new trial was sought or invited. In Francis v. Bond,¹⁸ for example, a trespass action for breaking and entering and taking away two engines for dressing hemp, Mansfield reacted to the jury verdict for the plaintiff for ten pounds by noting, Damages [are] excessive& contrary to the Evidence. No proof [of] the value [of] trade or delivery stopped. I cautioned them, but the 2d time they brought in ten.

In other cases, Mansfield recorded his unhappiness with the verdict but specified that the verdict should stand. In Walnutt v. Pomfret,¹⁹ an action for wages, Mansfield wrote: I am clear it is a most iniquitous Demand, but upon the Evidence [there was] no contradiction. I directed the Jury from the Injustice of the Demand upon the State of it to find against the Plaintiff, but they found for the wages, & then named the sum. There can be no New Trial. Further, in Bruckshaw v. Hopkins,²⁰ Mansfield noted: A wrong verdict but [it] should not be set aside. Only 2 of the Special Jury attended.

The Bruckshaw case illustrates another of the inconveniences of trial by jury—the problem of getting enough jurors to attend in response to the Sheriff’s summons. For petit juries, the problem was alleviated during the sixteenth century by the statutory allowance of a tales de circumstantibus by which men who were bystanders in or in the vicinity of the courtroom could be drafted on the spot to fill any deficiency in a jury panel. This tended to dilute the quality of the jury, however, and it was a particular problem when jurors of a higher class than the ordinary run of individuals on the jury rolls were sought. In the trial at bar²¹ of Phillip Carteret Webb, Solicitor of the Treasury, for perjury, the London Chronicle, 22–24 May 1764, reported: It was with no little difficulty that a Jury could be impannel’d to try this important cause, some of the Gentlemen, who had been summoned, neglecting to attend, notwithstanding the pressing necessity for their appearance.—One of them, however, was fined 30 l. for his remissness, which it is hoped will have a salutary effect upon every future occasion.²²

The Gazetteer and New Daily Advertiser reported that at the Croydon as sizes for August 1777, two special jury cases were called but neither was tried because of a lack of special jurymen—Of all that were summoned only three answered to their names on the first call and on searching the Inns and enquiring among the gentlemen of the Grand Jury there could only be found four special gentlemen. The Gazetteer then reported:

This raised the noble judge [Lord Mansfield] to express great indignation at the flagrant neglect of justice and the defeating to the good intent of the laws by the remissness of some and the deceitfulness of others. His Lordship said that he supposed it was an artifice to office practice by the attorneys of defendants to strike out of the list all such gentlemen as they knew would give their attendance and to leave only such to be summoned who they knew either could not or would not attend for the purpose of protracting the suit and evading the operation of the law. It was, his Lordship continued, a cruel and hard case upon parties suing for justice to be thus deprived of the means of obtaining it; lamenting much the progress of this growing evil, his Lordship therewith ordered that every special juror who had been summoned should be fined according to law. . . . This seemed to give great satisfaction to the whole Court as every person appeared sensible of the injury done to the public by such neglect. In the country the parties put off the trial: in London and Manchester they generally go on with the cause and fill up the number out of the common jury; either way makes the case hard for the parties.

Compounding the problem of nonattendance by jurors was the readiness of impaneling officers to be bribed by freeholders eligible for jury service who wished to be excused. Twice this happened under Lord Mansfield’s nose. It was reported in the London Chronicle, 24–26 June 1760, that Samuel Lane, the Sheriff’s Summoning Officer for the Liberty of Westminster, had been convicted for having received contributions from sundry inhabitants, under the pretence of Christmas-Box, to excuse them (perhaps the most proper and fit persons) from serving on Juries: and yesterday he received sentence in the said Court, which was, to pay full costs, and a fine of 6s. and 8d. The prosecutor had the thanks of the Court.²³

Eighteen years later, the same problem recurred, and this time the Summoning Officer, John Whitaker, received more than a slap on the hand. According to the London Chronicle, Whitaker, for many years the Summoning Officer for juries