I have no books to consult

Stephen Sedley

  • Lord Mansfield: Justice in the Age of Reason by Norman Poser
    McGill-Queen’s, 532 pp, £24.99, September 2013, ISBN 978 0 7735 4183 2

In March 1718, 13-year-old William Murray, the 11th of Viscount Stormont’s 14 children, set off from the family seat at Scone, near Perth, on a pony. The journey to London, which he made alone, took him almost two months, and it is probable that he never saw Scotland again. Although it was a bare three years since the first Jacobite Rising had attempted to place the Old Pretender, James Edward Stuart, on the throne, and although the Murrays were well-known Jacobites, the family was well enough connected to ensure that, when he reached London, William was able to enter Westminster School and then Christ Church, Oxford, at both of which he shone as a scholar.

Lord Mansfield, as Murray became, spanned the 18th century in more than simply years, though living from 1705 to 1793 was a good start. As chief justice of the King’s Bench for 32 years, he modernised an antiquated system of common law and rationalised a diffuse system of mercantile law; he drafted statutes; he played a central role in politics as cabinet member, counsellor and confidant; he knew everyone from Boswell to Blackstone and Pope to Pitt; and at Kenwood in Hampstead he constructed a mansion, designed by Robert Adam, and a park which remain a high point of British design.

Norman Poser is not Mansfield’s first biographer, but he is arguably the best so far. The first, John Holliday, wrote his not always reliable memoir shortly after Mansfield’s death. Then came Lord Campbell, himself a chief justice, whose biographies of his predecessors became known as one of the new terrors of death, and whose Life of Mansfield contains at least one palpable fabrication. In the 20th century two scholars, Edmund Heward and C.H.S. Fifoot, produced good short biographies focused on Mansfield as a lawmaker; and James Oldham (the author of the excellent entry on Mansfield in the current DNB), with new access to a large cache of Mansfield’s trial notes, produced a scholarly cornucopia, the two-volume Mansfield Manuscripts. Poser, with the further advantage of access to the mass of Mansfield documents assembled over 22 years by Arthur Vanderbilt, who died in 1957 just before retiring from his post as chief justice of New Jersey, has now written the comprehensive biography that Vanderbilt had planned to write.

The well-known engraving of Mansfield, taken by Bartolozzi from the portrait that Reynolds painted of him at the age of eighty, shows what has always seemed to me to be a thin-lipped and cruel face. It is cheering to learn that the reason, according to Reynolds, is that Mansfield had by then lost his teeth. Although Boswell in earlier years had found his ‘cold reserve and sharpness’ repelling, earlier portraits show a much more genial face. In parallel, the real-life Mansfield can be read as a hard-nosed careerist and canny lawyer whose wealth and connections enabled him to survive a good many deserved and a few undeserved buffetings; or as a contradictory and often inconsistent potentate, ruled as much by his heart as by his head; or as both, depending on the situation in which he found himself. Whichever it is to be, a judgment needs to go beyond the simplistic contrast drawn by Poser between Mansfield’s legalism and his ‘decency and sense of fairness’; or the amalgam, as Poser perceives it, of an ‘astute understanding of human nature with a vigorous aspiration to achieve justice’. These are superficial, even hagiographic, evaluations; but Poser’s achievement as a biographer is to equip others to form a fuller judgment.

‘Lord Mansfield’ by John Singleton Copley (1782)
‘Lord Mansfield’ by John Singleton Copley (1782)

On one level, Mansfield’s was a model career and Samuel Smiles wrote of him with reverence. His wife, Elizabeth, to whom he was devotedly married for 46 years, was the daughter of an earl and the granddaughter of a lord chancellor. A dutiful but not excessively devout Anglican, he prospered at the bar, then entered Parliament and almost at once was appointed solicitor-general. He was promoted to attorney-general, a position from which he was able within two years to claim the vacant post of chief justice of the King’s Bench, the principal court of common law. More than once he turned down the office of lord chancellor, aware that, in spite of its grandeur, it was a post that was unlikely to outlast the current ministry. Unsatisfied with the barony that had been conferred on him when he was made chief justice (he took the title from one of the estates of his patron, the Duke of Newcastle), he bided his time and, following the first British victories in the American war, which Mansfield supported, asked the king for an earldom. By now he was an extremely wealthy man from his practice at the bar, from the huge salary and perks of the chief justiceship, and from shrewd mortgage lendings which at his death were said to be bringing in £30,000 a year.

On another level, Mansfield was a child of fortune. Although insinuations of Jacobitism inevitably accompanied attacks on him – by Junius, for example, over his conduct of the trials of two publishers of the Letters for seditious libel, and repeatedly by his political antagonist Pitt – Mansfield’s enemies never knew about the letters he had written at the age of twenty to his brother-in-law John Hay, an adviser to the Pretender in exile in Rome, offering ‘my duty and loyalty to the king’, that is to say to the Pretender. Much later in life Mansfield, reaffirming the oath of loyalty to the Protestant succession that was required of all university entrants, said: ‘That a Protestant should reason himself into a Jacobite is as incomprehensible in politics as it is in religion that a man should reason himself into an atheist.’ (That the latter process was by no means incomprehensible may be too modern an idea; it is unlikely that Mansfield was advancing a coded defence of Jacobitism.) But although the bare accusation was capable, particularly after the ’45 and Culloden, of destroying a career, in Mansfield’s youth, Poser points out, both Westminster School and Christ Church were seats of overt Jacobite sympathy. Many of the fellows of the college refused to take the oath of allegiance to a Hanoverian crown, and toasts to ‘the king over the water’ were drunk almost as regularly in Oxford (‘a seminary of treason’, Pitt called it) as in Edinburgh. Hostility to the Pretender, whose claim to the throne was practically unanswerable but for his Catholicism, was matched by hostility to a frequently absent German monarch who spoke little or no English but whom the pursuit of a Protestant succession had shoehorned onto the British throne.

Mansfield’s youthful offer of allegiance to the king over the water may therefore not have been just an emotional indiscretion, which is the way the king regarded it when an account of Mansfield’s having drunk the Pretender’s health as a youth was reported to him. There was for a time a more than fanciful possibility, stoked by the atmosphere of Oxford, that the British throne would revert to the Stuarts. If that had happened, it would have been a shrewd career move for Mansfield to have staked out a supportive position. Equally, there is no reason why Mansfield should not have genuinely altered his views about the succession as he became an ornament of the English establishment and eventually a trusted adviser to the Hanoverian monarchy, while the realism of a Stuart succession faded. But the critics of public figures are rarely content to allow them to change their minds, and the epistolary evidence of his early Jacobite leanings, had it emerged, could well have destroyed him.

When George III came to the throne in 1760, Mansfield, by now chief justice, was still sitting regularly in cabinet, a minister (as Poser says) in all but name. When the Whig ascendancy collapsed and the Tory administration of Lord Bute took office, Mansfield stayed on, earning himself opprobrium as a turncoat when he could as readily have been regarded as creditably non-partisan. More important, however, the king’s initial hostility to him turned in the course of a few years to respect verging on admiration, giving Mansfield an enduring handle on the machinery of state. Legal historians tend to shrug at this gross violation of the very separation of powers that Montesquieu and Madison purported to admire in the British constitution; but, even at the time, the crossover between justice and politics was a cause of concern: Poser quotes the comment of the Public Advertiser in 1777 that ‘a man clothed with the robe of magistracy ought not to be a politician.’

Mansfield, however, found no embarrassment either in the multiplicity of his roles or in his personal connections with some of the litigants whose cases he unblushingly tried. He committed to a debtors’ prison (where he died) the by then demented poet Christopher Smart whom in past years he had befriended and helped. When the Duchess of Kingston, a close friend of his former patron the Duke of Newcastle, was indicted before the House of Lords for bigamy, Mansfield took the unprecedented step of granting her bail and then met her privately and reassured her that she would not go to jail, before sitting as a member of the House to try her. And when Lord George Gordon was indicted for provoking the riots in which Mansfield’s house and goods were destroyed, Mansfield had no hesitation in presiding at his trial for high treason – of which the jury acquitted him. Once again, it was left to the press to point out what was even then recognisable as an unacceptable conflict of interest: the Morning Herald tentatively suggested that Mansfield might ‘from the point of delicacy absent himself … lest the malevolent should, in case of … conviction of the prisoner, attempt to slander his great name by insinuating that something more than a love of justice might have swayed his Lordship’.

The respectful tone of comments like this reflected another of Mansfield’s achievements: the liberal deployment of the law of criminal libel to silence critics of the government and anyone who questioned the truth of Christianity. As attorney-general he had prosecuted several such cases. He had also advised that Dr Johnson could be prosecuted for the definition in his newly published Dictionary of excise as ‘a hateful tax … adjudged not by the common judges of property, but wretches [i.e. the commissioners of excise] hired by those to whom excise is paid’. Mansfield, experienced enough to anticipate what a jury of property owners would do with such an indictment, advised that it was better to threaten the Sage with prosecution if he did not modify the entry. Boswell, however, does not record that any such threat was received, and Johnson did not in any case alter his definition. But Mansfield, once on the bench, did not alter his mindset. He continued to hold that whether a publication was seditious was a question for the judge alone. It took legislation – Fox’s Libel Act of 1792 – to prise the question of libel or no libel out of the hands of the judges and give it to the jury.

When John Wilkes, known to be the editor and suspected of being the author of issue no. 45 of the vehemently anti-government North Briton, was arrested along with 44 others on a ministerial warrant that simply authorised the arrest of the authors, printers and publishers of the paper – leaving it, in other words, to the king’s messengers to decide where to search and whom to apprehend – it was to the chief justice of the Court of Common Pleas, Sir Charles Pratt, not to Mansfield’s court, that Wilkes’s lawyers applied for a writ of habeas corpus. Mansfield, who despised Pratt (a good lawyer with a liberal track record at the bar), was angry that his court was being bypassed; but by the time the law officers managed to get the cases into Mansfield’s court, the wind had changed and they got no help from Mansfield either. He dismissed the Crown’s appeal against the award of £400 damages to the printer Dryden Leach, holding, as Pratt had done, that the law did not authorise the use of general warrants – a decision likelier to have reflected Mansfield’s awareness of popular sentiment in favour of ‘Wilkes and liberty’ than respect for Pratt’s jurisprudence.

The culmination of this and other lawsuits, including Wilkes’s, in historic judgments and heavy awards of damages against ministers and their staff for false imprisonment were, however, only part of the story. There were also successful prosecutions for seditious libel, in which Mansfield played a central role. He took it on himself to direct a jury that the North Briton was a seditious publication, making conviction of the printer inevitable. Wilkes too was convicted of seditious libel in absentia, having fled to France (and consequently been outlawed) in order to evade both this prosecution and a charge of blasphemous libel for having had printed An Essay on Woman, which salaciously parodied Pope’s Essay on Man and its ponderous annotations by Mansfield’s friend Bishop Warburton. On his return to England Wilkes surrendered himself to Mansfield’s court to be sentenced on his convictions. Mansfield, again no doubt conscious of popular sentiment, managed to reverse the outlawry on a punctilio in the sheriff’s writ, and left the sentencing to another judge.

Those who recall Mansfield’s stirring dictum in the case of James Somersett, ‘The air of England is too pure for a slave to breathe,’ may wonder why there is no mention of it in Poser’s book. The reason is that Mansfield never said it. The line appears to have originated in a decision of – of all courts – Star Chamber in 1569: ‘One Cartwright brought a slave from Russia and would scourge him, for which he was questioned, and it was resolved, that England was too pure an air for slaves to breathe in.’ The earliest surviving account of the passage is in a contemporaneous account of the impeachment by the House of Commons in 1640 of the Star Chamber judges who three years earlier had had John Lilburne flogged through the streets, pilloried and jailed for refusing to give sworn answers to their questions. It was the parliamentary managers who drew the attention of the Upper House to the stirring dictum from Cartwright’s case, apparently in order to establish that flogging a gentleman, as opposed to a villein, was not lawful.

James Somersett, a recaptured slave, was being held aboard a ship moored in the Thames, about to be carried back to the West Indies. His abolitionist English godparents had habeas corpus proceedings issued on his behalf. When Mansfield, after much prevarication, was finally compelled to hear and decide the case, another of Somersett’s pro bono counsel, the legal scholar and antiquary Francis Hargrave, quoted Cartwright’s case in his argument (at least, he put it into the account of his argument in the report which he edited, admitting engagingly that it was not actually the speech he had delivered in court). But once the quotation was ringingly repeated by Somersett’s leading counsel, Serjeant Davy, it became common currency.

It was in 1827 when Lord Stowell, refusing in the case of The Slave Grace to extend Mansfield’s decision from England to the colonies, sarcastically ascribed to him the view that ‘the air of our island is too pure for slavery to breathe in’ that the attribution of the line to Mansfield took root, enabling Lord Campbell in his Lives of the Chief Justices to slot into Mansfield’s judgment the peroration: ‘The air of England has long been too pure for a slave, and every man is free who breathes it.’ And there, in legal folklore, it has remained.

But the creditable fact is that Mansfield, who not many months before had refused to act on the verdict of a jury that another escaped slave, Thomas Lewis, was not the property of his former owner, refused now to accept that the slave-owner Stewart’s return to the writ of habeas corpus, namely that Somersett was his property, was capable of justifying his detention. Mansfield was well aware of the domino effect that might follow if slavery were to be outlawed in England, and he said as much in his judgment. But he held – as in fact Chief Justice Holt had held in 1701 and again in 1706, only to be repeatedly overridden by advice given by the Crown’s law officers – that ‘the state of slavery is … 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.’

Although in later years Mansfield, and others, sought to limit the decision to preventing the export of slaves from England, its logic was far wider. The proposition that ownership of another human being was not a form of property known to English law – it had already been held to be outwith Scots law – dovetailed with Mansfield’s judgment in Campbell v. Hall (a decision which played a part in the recent Chagos Islanders litigation) distinguishing between ceded colonies, which were subject to direct rule and therefore open to a common-law ban on slavery, and settled colonies, whose legislatures were autonomous unless the imperial parliament overrode them. It was a distinction which could well have been built on by the American colonists in their bid for independence. But Mansfield, an influential hawk from the start, rapidly became a hate figure for them and their English supporters, not least by reason of the Quebec Act, which he may have drafted and which – consonantly with his religious liberalism – afforded a measure of toleration to Canada’s Catholics.

It is his inclination towards religious tolerance and his affection for his black great-niece, Dido Elizabeth Belle, that begin to soften Mansfield’s image as a conservative legal moralist and to hint at a conflicted and sometimes humane individual. Dido was born out of wedlock in the West Indies to his sea-captain nephew Sir John Lindsay and a black slave whose identity is lost. She went at an early age to live with the childless Mansfields at Kenwood as a companion to their great-niece Lady Elizabeth Murray, who had lived with them since the death of her mother. Zoffany’s double portrait now hanging in Scone Palace, painted circa 1780 when Dido was in her late teens, shows two elegant young women with different skin colours but similar features.

‘Dido Elizabeth Belle and Lady Elizabeth Murray’ by Johann Zoffany (1779)
‘Dido Elizabeth Belle and Lady Elizabeth Murray’ by Johann Zoffany (1779)

Dido’s life at Kenwood mirrored her ambivalent social status: she was not allowed to eat with the family but was permitted to join them for coffee. But she was evidently grateful, for she looked after the widowed Mansfield in his last years, and he left her a small legacy to add to the large one from her father. After his death Dido married, had three sons, and died in her early forties. She is sensitively portrayed in the recently released film Belle, which goes to great lengths to recreate time and place (much of it is set in the newly restored Kenwood House), but which is marred by one serious misjudgment: the lawsuit used to reveal the humanity beneath Mansfield’s crusty exterior is not Somersett’s case, as it could well have been without overmuch dramatic licence, but the Zong case, which Mansfield heard 11 years later.

The Zong was a slaver whose captain had jettisoned 150 slaves on the voyage from West Africa when the ship’s water ran low, and whose owners now claimed indemnity from their insurers for lost cargo, together with another sixty slaves who had died of thirst and forty who had thrown themselves overboard. A jury had found that the loss was occasioned by the ordinary perils of the sea, making the insurers liable. On appeal, Mansfield had a perfect opportunity to live up to his rhetoric in Somersett by throwing out the entire claim on the ground that the courts would not enforce a contract entered into for a purpose that was immoral or contrary to public policy. He had done exactly this in a number of cases involving oppressive loans or sharp transactions. Instead, accepting that slaves were insurable cargo, he washed his hands of the moral issues by ordering a retrial to investigate whether it had really been necessary to throw them overboard. The case is as bad a blot as any on the law of England and on Mansfield’s reputation, and one is sorry to see it sanitised in the telling of Dido’s story.

While Mansfield’s massive contributions to the rationalisation and development of the law (Poser usefully catalogues them at the end of the book) did not extend very far into the field of political liberty, in relation to religious liberty his record was much better. The story that he got a jury to acquit a woman of witchcraft by directing them, not that the witnesses who described her walking on the ceiling must be lying or deluded, but that there was no law against walking on ceilings, was first published after his death and probably ranks with George Washington’s cherry tree as a benign invention. But it is beyond question that Mansfield as a legislator supported the lifting of the disabilities imposed by law on Protestant dissenters, and that as a judge he made sure his juries acquitted Catholic priests accused, usually by a professional informer, of celebrating mass – a crime which under the Popery Act of 1698 carried a mandatory life sentence.

The consequent accusations that Mansfield was a crypto-papist were predictable and readily borne. Less easy to bear was the destruction in the anti-Catholic Gordon riots of his townhouse in Bloomsbury Square, which was targeted and burned to the ground with its library and pictures – though the house, it is true, was rented, and the Mansfields were safe at Kenwood. When troops finally put down the disturbance and 25 of the rioters were tried and hanged, Mansfield, speaking in the House of Lords in defence of the legality of the troops’ actions, said mournfully: ‘I have not consulted books; indeed I have no books to consult.’

Why was Mansfield, who was so intolerant on other matters, blasphemy included, so favourable to religious toleration? Poser is, I think, justified in looking to his close friendship with Alexander Pope. As a Catholic, Pope was debarred not only from owning land but from attending mass, holding public office or living within ten miles of London. The two men, although separated in age by 17 years, became close friends in the decade before Pope’s death in 1744, Mansfield regularly visiting Pope at his home in Twickenham and Pope as often coming to Mansfield’s house in Lincoln’s Inn Fields and his chambers at 5 King’s Bench Walk, where he coached Mansfield in oratory. Among other admiring verses, one of Pope’s Imitations of Horace described Mansfield, still at the bar, as ‘his Country’s pride’. For his part, Mansfield acted as counsel for Pope’s publisher Dodsley in a copyright action to protect Pope’s work from piracy, and Pope, in addition to making him an executor of his will, left him some valuable sculptures.

Mansfield had thus witnessed at close quarters the iniquity of the disabilities suffered by a Catholic whom he liked and admired, and who had shown him friendship and loyalty. He was also later to deal, as a judge, with the City of London’s racket of nominating Protestant dissenters to posts they were disqualified by law from holding and then fining them for not filling them. It was not a long step from here to supporting religious toleration, and not a long step from there to being attacked as a Jacobite crypto-papist. The 18th century may have earned the sobriquet of the age of reason, but there may also be something in T.H. White’s contention that at about its midpoint it became the age of scandal. Horace Walpole, who never liked Mansfield, excoriating him for supporting the execution of Admiral Byng, wrote: ‘As it is observed that timorous natures … are generally cruel, Lord Mansfield might easily slide into rigour on this as he did on other occasions, when he was not personally afraid.’ Perhaps the thin lips told a true tale.