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Significant Scots
William Murray

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.

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