English Common Law in the Age of Mansfield pot

The two volumes were made up of three parts: transcrip-tions of notes taken by Lord Mansfield of jury trials he conducted across histhirty active years as Chief Justice of the Court of K

in the Age of Mansfield

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

(Courtesy of the National Portrait Gallery, London)

English Common Law

in the Age of Mansfield

b y j a m e s o l d h a m

The University of North Carolina Press

Chapel Hill and London

All rights reserved Manufactured in the United States of America

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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.

i s b n 0-8078-2869-6 (cloth : alk paper) —

i s b n 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.o44 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

Preface xiEditorial Statement xv

Commerce and Contract

3 Contract and Quasi-Contract 79

19 Labor and Employment 343

20 Property and Wills 356Conclusion 364Appendix: Table of Regnal Years 371

Bibliography 373Table of Statutes 393Table of Cases 395General Index 409

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

‘‘Councellor Double-Fee’’ 15The Old Bailey 39

‘‘First Day of Term’’ 45

‘‘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

[ ix ]

In 1992 the University of North Carolina Press, in association with theAmerican Society for Legal History, published my two-volume work en-

titled The Mansfield Manuscripts and the Growth of English Law in the

Eigh-teenth Century The two volumes were made up of three parts:

transcrip-tions of notes taken by Lord Mansfield of jury trials he conducted across histhirty 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 twovolumes 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 ofthe explanatory essays, noting, for example, that these ‘‘provide somethinglike a modern textbook of eighteenth-century law and legal history’’ andthat there exists no comparable source These observations led naturally tothe idea of the present volume—a one-volume updated abridgment of theexplanatory essays that would be agreeable to most individual budgets andfeasible 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 laymany 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 inthe law of negligence, nuisance, religious freedom, and slavery) Thoughassisted by the work of able contemporary and predecessor judges, LordMansfield was the dominant judicial force behind these developments.The first two chapters of this book comprise a brief biographical sum-mary of Mansfield and a fairly detailed description of the day-to-day busi-ness and procedures of the common law courts (and to a lesser extent of theOld Bailey), especially in the conduct of jury trials Eighteen chapters thenfollow that are devoted to specific substantive areas of law The choice oftopics was dictated by the number and nature of the proceedings over which

[ xi ]

Mansfield presided, in particular the jury trials I have tried to preserve foreach subject a treatment that will be informative and satisfying without re-quiring the reader to resort to other sources for basic understanding Twochapters—trespass and trover, and property and wills—are radically short,which I explain as due to the lack of substantial changes in the commonlaw of these subjects during the Mansfield years Other chapters that couldseem disproportionately large are justified by the importance to modernlaw of the subject matter and by the defining Mansfield imprint.

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

two-I am grateful to the many colleagues who encouraged the idea of thisbook and who wrote to the Press lending their support In particular I thankJohn Baker, John Beattie, Henry Bourguignon, Robert Gordon, StanleyKatz, John Langbein, Kent Newmyer, John Orth, and Brian Simpson.Overseeing the project with unerring judgment and sound advice was TomGreen, who continues his longstanding, extraordinarily constructive ser-vice as coeditor of the Studies in Legal History series

In the years intervening since the publication in 1992 of the originaltwo-volume work, additional documentary research in London has beenmade possible by sabbatical funding and summer research grants from theGeorgetown University Law Center Also, when the press indicated that ithoped for a subvention for this work, the Law Center’s Dean, Judith Areen,immediately supplied the necessary funds Dean Areen has been a steadfastsupporter of scholarly work, and I am in her debt

In the task of abridging the essay chapters and conforming to the lines followed by the Press, I have had indispensable help from Faculty As-sistant Diane Hedgecock, Faculty Manuscript Editor Anna Selden, and Re-search Assistants Avedis Seferian, Cynthia Fleming, and Ibie Adeyeye Forlibrary and bibliographical queries, Special Collections Librarian LauraBédard, as always, has provided invaluable help, ably assisted by SpecialCollections Assistant Erin Kidwell

guide-At the University of North Carolina Press, I thank Chuck Grench andAmanda McMillan for their responsible management of this unique abridg-

ment and for pacifying me when I grew impatient I was fortunate also inthat the final preproduction phase, copyediting, was handled by AssistantManaging Editor Paula Wald and copyeditor Julie Bush Paula copyeditedthe original two-volume manuscript, and in the present work, Julie was hercapable successor.

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

The following editorial principles and decisions were applied in preparingthis work:

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

develop-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 Inthe form that I use—for example, ‘‘449 nb 35’’—the first number signifiesthe volume and the last number the page within a given notebook Volumenumbers for the notebooks were assigned by the National Register of Ar-chives (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

Re-ports In the footnotes I cite only the reports of cases in the nominative

re-ports, and usually only to the best-known versions for cases that have tiple reports in the nominatives One exception is in chapter 17, where allknown reports of important slave cases are of interest and are cited Also, in

mul-the Table of Cases, I give page and volume cross-references to mul-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 ofPall Mall, 1963) According to Sir William Holdsworth, this edition is ‘‘theonly one that can be relied upon for historical purposes,’’ although PercyWinfield observed, ‘‘That it might have been much better than it actuallywas, without making impossible demands on the editors, is an unfortunate

fact’’ (W S Holdsworth, Sources and Literature of English Law [Oxford:

[ xv ]

Clarendon, 1925], 58; P H Winfield, The Chief Sources of English Legal

His-tory [Cambridge: Harvard University Press, 1925], 92) Using Statutes of the Realm creates some difficulty, because there are occasional variances be-

tween the regnal years and chapter numbers given and those used in theprinted statute compilations in circulation in the eighteenth century Whenthis 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

commis-sion but covers statutes only to the end of the reign of Queen Anne Theelephant folio 1963 reprint should be available in most law libraries Forthe 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

Black-stone’s Commentaries on the Law of England and William Holdsworth’s

His-tory of English Law I cite the first edition of the Commentaries, except in

chapter 17, in which Edward Christian’s commentary to the thirteenth

edi-tion 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 enablethe reader to understand the relevance of the illustration and its content.Some of the satirical caricatures reproduced would be mysterious withoutexplanation, but this is easily remedied for the caricatures that are in theDorothy George collection at the British Museum Department of Printsand Drawings This collection is indexed in Dr Mary Dorothy George’s

Catalogue of Political and Personal Satires George’s phenomenal

descrip-tive narradescrip-tive explains virtually every known character, characteristic, andnuance of the caricatures in the collection Those illustrations with cap-tions 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 modernizedspelling, capitalization, and punctuation in quotations from case reportsand documentary sources

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

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)

ASSI Assize records

KB King’s Bench records

[ xvii ]

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)

a n d

the Court

of King’s Bench

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 reshapedthe law Some familiarity with Mansfield’s attributes, and with the statureand procedures of the Court of King’s Bench, will also be helpful in under-standing the developments in the various subject areas that are the mainbody 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 Williamalone emerged as a prominent and influential public officer in England andbecame very rich Both of these stations he reached by indefatigable effortand genuine ability His early years at the bar probably were boosted byScottish patronage, and he appears to have enjoyed fortuitous financial helpwhile at Oxford,2 but by and large he made his own way

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

four-Murray’s attachment to the law began early He was entered in Lincoln’sInn in April 1724 while still an undergraduate at Oxford.3 After receiving

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

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, largelyself-study The only formal requirements were ‘‘to dine in the hall five dayseach term’’ and ‘‘to read the first sentence of a paper prepared for him bythe steward,’’ a meaningless formal exercise conducted once a term.5 Never-theless, Murray took his time at Oxford and at Lincoln’s Inn seriously, ex-hibiting two characteristics that served him all his life: a readiness to per-form the long hours of drudgery and apprenticeship necessary to develop athorough grounding in a subject or a skill, and an irrepressible intellectualcuriosity Lord Campbell says that while at Oxford, ‘‘he had attended lec-tures on the Pandects of Justinian, which gave him a permanent taste forthat noble system of jurisprudence.’’6 Letters he wrote at different stages ofhis life on the study of ancient and modern history7 reveal his deep famil-iarity 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 amirror while being coached by his friend Alexander Pope.9 Still later, butwhile 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 Worldbut what must be done, I love to do, & have it over.’’11

Murray was called to the bar 23 November 1730, after spending the longvacation on the Continent.12 Very shortly he established himself in cham-

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

 Campbell, Chief Justices, 2:327.

 Ibid.

 J Holliday, The Life of William Late Earl of Mansfield (London: For P Elmsly, D ner, T Cadell, Jr., W Davies, et al., 1797), 12–23, reprinting letters published in the European

Brem-Magazine, and London Review, 1792, fols 182 and 257.

 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).

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

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

 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.

bers at No 5 King’s Bench Walk in the Inner Temple How he prosperedduring 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, ac-cused correspondent in a criminal conversation case brought by TheophilusCibber, ‘‘business poured in upon me on all sides.’’13 During his first eightyears of practice, his earliest business of consequence appears to have comefrom 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 putes heard before the Commissioners for Trade and Plantations (the Board

dis-of Trade) The journal dis-of the Board dis-of Trade reveals appearances by Murray

in the prolonged dispute from 1734 to 1737 between the Penns and LordBaltimore over the boundaries of Maryland,15 and in 1734–35 as counselfor the agent of New Hampshire in a boundary dispute with MassachusettsBay.16 He represented the trustees of a Georgia company in a 1736 disputewith 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 setts Bay.18

Massachu-Also during the 1730s, Murray appeared frequently before the Bar of theHouse of Commons and its committees Eclipsing in importance any pre-vious activity, however, was the affair of Captain Porteous Riots in Edin-burgh 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 ing an execution in 1736.19 Several in the crowd were killed; Porteous wastried and sentenced to death but was afterward reprieved by Queen Caro-line The reprieve engendered the riots, and in London in April 1737, a re-tributory bill was introduced in Parliament to put the city of Edinburghunder certain disabilities Murray acted as counsel for the Lord Provost ofEdinburgh Ultimately, the city was given only nominal punishment, andMurray’s role as counsel was widely praised

attend-In light of the foregoing, it is clear that Murray’s characterization of the

 Holliday, Life of Mansfield, 36.

 Campbell, Chief Justices, 2:259–60.

 Murray was counsel for the Penns.

 Journal of the Commissioners for Trade and Plantations 4 (Jan 1728–29 to Dec 1734):

429; 5 (1734–35 to 1741): 11, 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).

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

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

Theophilus Cibber case as a turning point was overstated Campbell wascorrect in observing that Murray’s reputation was well established by then,and a variety of business was steadily coming his way Murray does not ap-pear to have had a moment of self-doubt; by 1738 his career was stronglylaunched.

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

Eliza-creasing 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 Benchdecisions22 has been linked to this practice and to his strong admiration forHardwicke.23

Possessed of widely recognized talent, Murray was positioned to bedrawn in by the tentacles of patronage of the Duke of Newcastle Whenthis happened, the ambitious Murray did not resist In 1742, Newcastle con-trived Sir John Strange’s resignation as Solicitor General in order to makeroom for Murray; Murray was appointed and at the same time took his seat

in the House of Commons representing one of Newcastle’s many pocketboroughs, Boroughbridge As Solicitor General, he became allied, as a lawofficer for the Crown, with Attorney General Dudley Ryder Ryder hadbeen Attorney General since 1737 and would continue until 1754 when hebecame Chief Justice of the Court of King’s Bench, elevating Murray toAttorney General Because Ryder was a copious shorthand diarist and note-

of the Selden Society, vols 73, 79 (London: B Quaritch, 1957–61), 1:ix–xxxvi.


Also in West, temp Hardwicke.

 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.

 After Hardwicke’s retirement from the bench, Mansfield borrowed from him a script copy of one of Hardwicke’s decisions, and in his letter returning the manuscript, Mans- field wrote that Hardwicke’s reasoning ‘‘put the general Law of Property upon so consis- tent 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).

manu-taker, it is possible to trace many aspects of the dozen years he and Murrayspent together as law officers.24

The working relationship of the Attorney General and the SolicitorGeneral was a close one The law officers were called upon for an array ofservices Principally these included the giving of legal opinions on ques-tions of domestic and international law, decisions about initiating and han-dling litigation, and the drafting of proposed bills for consideration in Par-liament Requests for these services came, typically, from the Duke ofNewcastle and from Lord Chancellor Hardwicke during the Ryder-Murrayyears According to Ryder’s diaries,25 these requests invariably called forjoint opinions of the Attorney General (‘‘the Attorney’’) and the SolicitorGeneral (‘‘the Solicitor’’) Murray would do the initial drafting, submittingthe document to Ryder for annotation, but occasionally Ryder would setout his views in some detail One episode involving Ryder and Murray hasbeen featured by Mansfield’s biographers According to Campbell, ‘‘TheKing of Prussia had sought to remodel the law of nations in a way thatwould have rendered naval superiority in time of war of little avail.’’26 Amemorial was prepared by the Prussian minister spelling out details of thePrussian position, such as denying the validity ‘‘of all the proceedings inthe 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 Tothis, a ‘‘masterly answer’’ was returned, one so thorough and forceful thatthe Prussians submitted According to John Holliday, Mansfield frequentlydeclared to his friends that it ‘‘was entirely his own composition, although

it bears the signature of two distinguished civilians, and of his colleague in

 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.

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

 Campbell, Chief Justices, 2:376.

 Ibid., 377.

office, as well as his own.’’28 In his diary for 22 December 1752, Ryder scribed a meeting of the four authors at which ‘‘we agreed that the Solicitorshould prepare a plan, then go to Dr Lee to add authority, then to come to

de-me and Dr Paul.’’ Then Ryder set out a detailed four-point plan of his ownthat he proposed, complete with subdivisions and explanatory comments.Except in the loosest outline, Ryder’s plan was not adopted by Murray, butRyder later noted (2 January 1753), ‘‘I returned the draft of the report on thePrussian commission with my observations in the margin and alterations ofthe draft of conclusions.’’ Thus, even granting Murray the principal author-ship, 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 Jacobiteaccusation that threatened to halt his advancement on the eve of his eleva-tion to King’s Bench Murray’s family had strong Jacobite connections, andwhile a youthful allegiance to the cause by Murray is certain, the contro-versial question was whether Murray carried any such early allegiance intoadulthood

In 1753 the Recorder of Newcastle, Christopher Fawcett, sponsored byLord Ravensworth, made public accusations that Murray and two others(Murray’s friend Andrew Stone and another classmate from WestminsterSchool) had some twenty years earlier, in Fawcett’s presence, toasted thehealth of the Old Pretender, James Edward Stuart Eventually Fawcett’s

‘‘eyewitness account’’ crumbled and the accused were exonerated WhetherMurray actually behaved as Fawcett asserted will never be known

Fifteen months after the Fawcett affair, Dudley Ryder died Murray wasRyder’s natural successor, both by tradition (as the incumbent AttorneyGeneral) and by ability There were two obstacles—anxiety by the Duke

of Newcastle about losing forceful support in the House of Commons andMurray’s insistence that the appointment be accompanied by a peerage.The Duke of Newcastle served up as many temptations as he could to in-duce 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 Therewas royal resistance to any automatic linkage between judicial office and

a peerage When William Fortescue, Master of the Rolls, died in ber 1749, Ryder was offered the job; Ryder requested a peerage with theappointment and recorded the following reaction of Henry Pelham to his

Decem- Holliday, Mansfield, 424 The ‘‘civilians’’ referred to were civil lawyers Dr Lee and

Dr Paul.

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

request: ‘‘And as to peerage, he foresaw difficulty with the King tions would be made that a new office is brought into the peerage, whichwould give expectations to future masters of the rolls, and make a number

Objec-of Lords from the law He said he did not know but the King might haveanother difficulty arising from Murray’s being to succeed to my office andthe attachment of his family.’’31 But Murray eventually overcame the resis-tance of George II.32 Here, as always, Murray was clear about his goals andwas supremely self-confident of achieving them Also, he may have beenhardened in his resolve by having watched for two years the pathetic whee-dling by Ryder to persuade Newcastle to fulfill his promise to get Ryder

a peerage without delay after Ryder’s appointment as Chief Justice of theCourt of King’s Bench.33

On taking office as Chief Justice of the Court of King’s Bench, field embarked on a long and extraordinarily influential judicial career Inthe main his energies were devoted to adjudicated cases, and the results will

Mans-be examined in chapters that follow It is important to Mans-bear in mind, ever, that Mansfield continued to draft and sponsor legislation as a member

how-of the House how-of Lords while he was Chief Justice Mansfield’s views ing the intrinsic value of the common law over legislation have been publi-cized,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 regulat-ing public behavior At the same time, he stated in a speech in the House

prais-of Lords his view ‘‘never to propose a new law when there was an existingremedy adequate to the removal or correction of the evil complained of.’’35Nevertheless, Mansfield on occasion found existing remedies inadequate


Ibid.

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

gen- 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 peer- age 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).

 See, e.g., Heward, Lord Mansfield, 63, quoting Murray’s early remarks in Omychund v.

Barker, 1 Atk 22, 33 (1744).

 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.

and in other cases found a need for legislation to impose orderly dures For example, it was reported that Mansfield, Wedderburn, and Mans-field’s nephew Sir John Lindsay were to draw up a bill to regulate the pro-

proce-ceedings 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 examplesinclude a notice in 1777 of Mansfield’s work on a bill for the protection ofyoung women from seduction39 and of a proposed clause in the InsolvencyAct to curtail fraudulent claimants.40 In the waning moments of Mans-

field’s active judicial years, the London Chronicle reported a ‘‘pretty

numer-ous’’ 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 preparedready to be introduced to Parliament next sessions as soon as possible afterthe meeting of the Houses, to make perjury in any Court of Justice, &c acapital offence, punishable with death.’’41

On the Court of King’s Bench, Mansfield was in his element Despiteperiods 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 governthe mercantile energies of England and America down to the present day

As will be shown in the chapters ahead, almost no feature of the evolvingcommon law escaped his shaping influence

Lord Mansfield’s extraordinary stamina in his professional work

as- London Evening Post, 31 Mar 1772.

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

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

been introduced.

 Morning Chronicle, 2 Aug 1777.

paper 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.


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

tonished observers, the more so as it continued into the 1780s.42 For ample, the seventy-five-year-old Mansfield, presiding over the trial of LordGeorge Gordon for his responsibility in the Gordon Riots, commencedthe hearing at 9 a.m and continued without interruption until he con-cluded two hours of summation to the jury at 4:30 a.m the next morning.43Another trait exhibiting Mansfield’s physical vigor was his love of horsebackriding For him, the practice was therapeutic From Kenwood he wrote tohis nephew Stormont on 10 October 1777, ‘‘If our Moments are anxious theWeather is very fine & I try to ride away care every day.’’44 Not only wasthis his mode of transportation at age fourteen from Edinburgh to Lon-don, it was thereafter the method of travel that Mansfield frequently pre-ferred Joseph Cradock in his memoirs recalled that only once did Mans-field honor the Midland circuit with his presence,45 but instead of joiningthe cavalcade, Mansfield ‘‘merely stole into Leicester late at night, on asaddle-horse.’’46 Lord Mansfield wrote to John Eardley Wilmot from Ken-wood on 29 December 1757, ‘‘I shall hardly be able to ride to Town a morn-ing before next Week Then you will give me leave to Breakfast with you

ex-in my Boots.’’47 And ex-in a letter to Andrew Stone, 16 August 1741, Murraywrote, ‘‘I had the good luck to meet My Lord Chancellor yesterday by Acci-dent, & 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 fallfrom his horse on Wednesday last, whereby his right shoulder was much in-jured, 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 thespring of 1786 He remained in office until 4 June 1788, when he was suc-ceeded by Lord Kenyon After his resignation, he lived in retirement atKenwood until his death on 2 March 1793

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

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

 Scone Palace MSS, Second Series, Bundle 641.

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

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

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 superficialsimplicity In fact, the layers at which justice was administered were

many Patrick Colquhoun in his Treatise on the Police of the Metropolis,

pub-lished in 1796, gave a detailed statistical breakdown of the courts and theirofficials at work in the metropolitan area of London In addition to theOld Bailey, he identified nine ‘‘supreme courts,’’ four ecclesiastical courts,seventeen courts for the City of London, eight courts for the City of West-minster, fourteen courts ‘‘in the part of the Metropolis, lying within theCounty of Middlesex,’’ and eight courts in the Borough of Southwark inSurrey.1 Functionally, other than the supreme courts and the ecclesiasticalcourts, these included eighteen inferior courts for small debts, one court

of oyer and terminer and gaol delivery, four courts of general and quartersessions of the peace, ten courts of petty sessions for the police, and fivecoroners’ courts Together, they were serviced by 753 court officers.2Among the supreme courts were the Court of King’s Bench (BancusRegis, B.R.), the Court of Common Pleas (Common Bench, C.B.), and theCourt of Exchequer Four judges sat on each of these three courts, andtogether the twelve central court judges, although comprising a small part

of the total judicial system, superintended the litigation that gave form tothe body of common law to which the entire system responded

Lord Mansfield was sworn in as Chief Justice of the Court of King’sBench 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 proce-

P Colquhoun, A Treatise on the Police of the Metropolis, 5th ed (London: For C Dilly,

1797), 383–88.

 Ibid., 389.

 J H Baker, The Order of Serjeants-at-Law (London: Selden Society, 1984), 93–99.

[ 12 ]

by Robert Dighton, 1785 Lord Mansfield presides with two puisne justices(probably Edward Willes on the left and Francis Buller on the right) amid acommotion of lawyers, with part of the jury in view (Courtesy of theTreasurer and Masters of the Bench at Lincoln’s Inn, London)

dural,4 but his strong substantive imprimatur—especially on commercialthemes—was soon to follow, and it was pervasive.

In regulating the flow of business in his court, Mansfield was notoriousfor his unremitting work habits Heward recounts the response of SerjeantDavy5 to Mansfield’s announced intention to sit on Good Friday: ‘‘YourLordship will be the first judge to have done so since Pontius Pilate.’’6 Even-

tually, the bar became exasperated It was reported in the Morning Chronicle

for 22 May 1782 that, on the Monday before, Mansfield ‘‘sat in ster hall unattended by any Gentlemen of the Bar.’’ The explanation wasthat Mansfield had announced on Saturday that because of the large num-ber of cases, he intended to sit on Monday, despite the custom to adjournthe sittings during the first days of the Whitsuntide week and despite a re-minder from Barrister James Wallace about the custom According to the

Westmin-Chronicle, ‘‘In consequence of this the Gentlemen of the Bar formed a

gen-eral agreement not to attend the Court on Monday, notwithstanding whichhis 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 inter-preted as a message to expedite And despite his seeming inattention, every-one agreed that Mansfield missed nothing, invariably summarizing the casefor the jury with completeness and accuracy

In the Court of King’s Bench, the judges and the leading barristers wereknown to each other and they were few in number As observed by PeterBrown, ‘‘Only some twenty to thirty barristers shared the remunerativepractice afforded by cases which reached the Court of King’s Bench forMansfield’s decision Counsel and the judges must have acquired an in-timate knowledge of each other’s habits of mind, like the Fellows of an

 Mansfield’s prompt procedural changes have often been pointed out See J Campbell,

The Lives of the Chief Justices of England, 3 vols (London: John Murray, 1849–57), 2:398–402;

and C H S Fifoot, Lord Mansfield (Oxford: Clarendon, 1936), chapter 3 See also text at

nn 204–5, this chapter.

 ‘‘Bull’’ Davy took to the law after having become bankrupt as a grocer in Exeter He was

a quick-witted, popular barrister known for enlivening the courtroom with his humor and

skills of cross-examination See H W Woolrych, Lives of Eminent Serjeants-at-Law, 2 vols.

(London: William H Allen, 1869), 2:604–33.

 E Heward, Lord Mansfield (Chichester and London: Barry Rose, 1979) 62, citing

P Thicknesse, Sketches and Characters of the Most Eminent and Most Singular Persons Now

Living (Bristol: J Wheble, 1770), 38.

barrister who served as Solicitor General and AttorneyGeneral in the 1760s, is shown in a counselor’s robes andwig, stretching forth his palms to receive a fee from boththe plaintiff and the defendant in a lawsuit He declaresthat he is ‘‘Open to all Parties,’’ and ‘‘Open to all’’ iswritten on the palm of each of his hands On the wainscotbehind Norton hang three portraits of Chief Justices:Ryder, Jeffries, and Mansfield (who is shown wearing aScotch ‘‘bonnet’’ above his state wig) (Courtesy ofthe Library of Congress, Washington, D.C.)

Oxford college.’’7 Near the end of the century, Colquhoun counted eight

in the category of King’s Serjeants, Attorney and Solicitor General andKing’s Advocate; twelve Serjeants at Law; and twenty-five King’s Counsel.There were, however, over four hundred barristers dispersed throughoutthe metropolitan area of London.8

Mansfield and His Juries

Responding to the charge that Lord Mansfield did not possess the highregard that any well-bred Englishman ought to harbor for trial by jury,Charles Butler observed, ‘‘Upon what this charge is founded, does not ap-pear: between him and his Jury there never was the slightest difference ofopinion He treated them with unvaried attention and respect; they alwaysshewed him the utmost deference It is remembered, that, no part of hisoffice was so agreeable to him as attending the trials at Guildhall.’’9 But-ler was correct in his basic point—that the relationship between Mansfieldand 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 askedfor his opinion on a pamphlet just published recommending the intro-duction of jury trial in Scotland in certain types of cases Lord Campbellquoted in its entirety a memorandum that Mansfield dictated in response,

in which Mansfield concluded that ‘‘the partial introduction of trials byjury seems to me big with infinite mischief, and will produce much liti-gation.’’11 Mansfield pointed out that ‘‘a great deal of law and equity inEngland has arisen to regulate the course and obviate the inconvenienceswhich attend this mode of trial.’’ The main inconvenience identified byMansfield 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 toadopt ‘‘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 beplausible.’’

 P D Brown, The Chathamites: A Study in the Relationship between Personalities and Ideas

in the Second Half of the Eighteenth Century (London: Macmillan, 1967), 261.

 Colquhoun, A Treatise on the Police of the Metropolis, 389.

Quoted in W Seward, Anecdotes of Distinguished Persons, Chiefly of the Last and Two

Pre-ceding Centuries, 5th ed., 4 vols (London: For T Cadell, Jr., and W Davies, 1804), 2:392–93.

Campbell, Chief Justices, 2:554.

Although Lord Mansfield perceived the inefficiencies and niences of trial by jury, his relationship with juries in trials that he con-ducted was usually cooperative, as can be shown by his jury instructions, for

inconve-example, those printed in the pamphlet version of Howe v Dive:12

‘‘Gentle-men of the Jury, You attend on a question that must be very disagreeableboth to you and to me; and it has become more entangled by the great lati-tude that has been taken on both sides at the bar; for a great many thingswere opened, and a great many things have been gone into, that you mustforget as fast as you can, for you must try the cause upon the evidence.’’13Mansfield then proceeded to differentiate carefully between the consider-able fiction introduced by the lawyers (‘‘for everything is fiction that isnot proved’’) and the small sum of uncontradicted testimony heard by thejurors They responded agreeably to Lord Mansfield’s view of the case, andupon the plaintiff’s request that his verdict of 550 pounds be given to what-ever charity Lord Mansfield might designate, Mansfield complimented theplaintiff 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 notationwhenever he thought the verdict wrong, and the trial notes reflect a num-ber of examples They represent, however, a very small percentage of thethousands of cases recorded in the notebooks Occasionally Mansfield spe-

cifically 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 criminalconversation case, after which Mansfield wrote, ‘‘Very large [verdict], but

a good Jury They went out shamed sick to her husband [Defendant andPlaintiff’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

Gret-ton v Crossweller,16 an action in trespass-on-the-case for taking

unreason-able distress for rent, Mansfield wrote in response to the jury verdict forten pounds, ‘‘A most shameful Verdict, there was not a farthing Damage

 Assault and defamation trials before Mansfield at the Croydon assizes, August 1781 For Mansfield’s trial notes, see MMSS II: 851, 1022.

 Two Actions, between John Howe, Esq and George Lewis Dive, Esq., Tried by a Special Jury,

before Lord Mansfield At the Assizes Holden at Croydon, on Wednesday the 15th August, 1781, 2d

ed (London, 1781), 24.

 Ibid., 26.

 468 nb 58 (Middlesex, 23 Feb 1769), MMSS II: 1278.

 491 nb 155 (Maidstone, 12 Aug 1783), not transcribed in MMSS.

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 theplaintiff for fifty pounds, and wrote, ‘‘very wrong Verdict.’’

A common ground for a motion for new trial was that the jury verdictwas against the weight of the evidence Successful motions of this type werenot uncommon But in some cases, Lord Mansfield registered his disagree-ment with the verdict with no indication that a new trial was sought or in-

vited 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 ordelivery 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, butupon the Evidence [there was] no contradiction I directed the Jury fromthe Injustice of the Demand upon the State of it to find against the Plain-tiff, 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 theSheriff’s summons For petit juries, the problem was alleviated during thesixteenth century by the statutory allowance of a ‘‘tales de circumstanti-bus’’ by which men who were bystanders in or in the vicinity of the court-room 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 particularproblem 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,

 468 nb 2 (Middlesex, 17 Feb 1769), not transcribed in MMSS.

 462 nb 224 (Middlesex, 5 Dec 1764), not transcribed in MMSS.

479 nb 140 (Middlesex, 3 Dec 1776), MMSS I: 316.

question of venue in this case.


A trial at bar was a trial conducted at Westminster Hall before all four judges of a ticular court, contrasted with a nisi prius trial conducted by a single judge (see J C Oldham,

par-‘‘The Origins of the Special Jury,’’ University of Chicago Law Review 50 [1983]: 137, 190–96).

reported: ‘‘It was with no little difficulty that a Jury could be impannel’d totry this important cause, some of the Gentlemen, who had been summoned,neglecting to attend, notwithstanding the pressing necessity for their ap-pearance.—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 triedbecause of a lack of special jurymen—‘‘Of all that were summoned onlythree answered to their names on the first call and on searching the Innsand 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 nation at the flagrant neglect of justice and the defeating to the goodintent of the laws by the remissness of some and the deceitfulness ofothers His Lordship said that he supposed it was an artifice to officepractice by the attorneys of defendants to strike out of the list all suchgentlemen as they knew would give their attendance and to leave onlysuch to be summoned who they knew either could not or would not at-tend for the purpose of protracting the suit and evading the operation

indig-of the law It was, his Lordship continued, a cruel and hard case uponparties suing for justice to be thus deprived of the means of obtain-ing it; lamenting much the progress of this growing evil, his Lordshiptherewith ordered that every special juror who had been summonedshould be fined according to law This seemed to give great sat-isfaction to the whole Court as every person appeared sensible of theinjury done to the public by such neglect In the country the partiesput off the trial: in London and Manchester they generally go on withthe cause and fill up the number out of the common jury; either waymakes the case hard for the parties

Compounding the problem of nonattendance by jurors was the ness of impaneling officers to be bribed by freeholders eligible for jury ser-vice who wished to be excused Twice this happened under Lord Mans-

readi-field’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 ster, had been convicted ‘‘for having received contributions from sundry

Westmin- Emphasis deleted Webb’s trial was before a special jury For the trial notes, see Rex v Webb (London, 15 May 1764), MMSS II: 1093.

inhabitants, under the pretence of Christmas-Box, to excuse them (perhapsthe most proper and fit persons) from serving on Juries: and yesterday hereceived 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 moning Officer, John Whitaker, received more than a slap on the hand Ac-

Sum-cording to the London Chronicle, Whitaker, for many years the

Summon-ing Officer for juries at Westminster, was convicted of corruption in officeand was fined two hundred pounds, ordered imprisoned until the sum waspaid, and disqualified from his employment.24 ‘‘By the delinquent’s own an-swers, it appeared, that for 11 years past he made, upon an average of 50 £per annum, by receiving a certain fee from each person whom he excusedfrom serving the office of juror.’’25 Whitaker stated that he took over fromSamuel Lane, who had died in office Thus Lane, apparently, carried on thepractice for six or seven years after his 1760 conviction

Despite its difficulties, the jury system harbored advantages that field would have readily acknowledged He was appalled by the persistence

Mans-of perjury within the courtroom,26 and in the main, he was ready to leave

to the juries vexing questions of credibility But it was the development anduse of merchant juries in the shaping of commercial law that representedMansfield’s most constructive use of the jury system Citing Lord Camp-bell, Cecil Fifoot asserted that Mansfield ‘‘trained a corps of jurors as apermanent liaison between law and commerce.’’ Fifoot quotes Campbell’swell-known recollection (‘‘made while he was yet young enough to indulgeadmiration’’):27 ‘‘Several of these gentlemen survived when I began to at-tend Guildhall as a student, and were designated and honoured as ‘LordMansfield’s jurymen.’ One, in particular, I remember, Mr Edward Vaux,who always wore a cocked hat, and had almost as much authority as the LordChief Justice himself.’’28

Another merchant juror who earned Lord Mansfield’s respect wasThomas Gorman An expert on insurance, Gorman sometimes appeared in

 In answers to interrogatories, Lane claimed to have done nothing but what was tomary in soliciting Christmas contributions from persons known to be likely to give Lane was appointed to his office in 1742, which he held jointly with Samuel Clendon until 1751, and

cus-by himself thereafter PRO/KB 32/19/II.

 A brief report of the case is given at 2 Cowp 752.

 London Chronicle, 13 Feb 1778.

 See chapter 14.

 Fifoot, Lord Mansfield, 105.

 Campbell, Chief Justices, 2:407.

court as a witness, sometimes as a special juror, and sometimes he served as

an arbitrator.29 In Lilly v Ewer,30 Gorman (‘‘an eminent merchant’’)

testi-fied for the plaintiff about the customary usage of certain terms in insurancepolicies; on the motion for new trial, Lord Mansfield stated, ‘‘I laid great

stress on Mr Gorman’s testimony I did not consider him as a common ness.’’31 And in Jones v Schmoll,32 an insurance case involving a claim of loss

wit-to slave cargo, the Daily Universal Register reported that in response wit-to a

question by Lord Mansfield whether some of the slaves had died of despairand in consequence of an insurrection, ‘‘Mr Gorman (a juror) observedthat the flux was a common disorder among slaves on shipboard.’’33The case most aptly illustrating Lord Mansfield’s use of his merchant

juries is Lewis v Rucker,34 involving evaluation of profits in an insurance

claim Mansfield stated, ‘‘The special jury, (amongst whom there were manyknowing and considerable merchants), found the defendant’s rule of esti-mation to be right, and gave their verdict for him They understood thequestion very well, and knew more of the subject of it than anybody elsepresent; and formed their judgment from their own notions and experi-ence, without much assistance from anything that passed.’’35

Mansfield’s merchant juries were not always complaisant, as is illustrated

by the cases of Medcalf v Hall, Appleton v Sweetapple, and Tindal v Brown.36

Yet Fifoot was correct in concluding that

for the most part Lord Mansfield corrected the exuberance of the jurywithout offending its susceptibilities, and restrained its power evenwhile he raised its prestige A verdict was to be accepted as raw ma-terial brought to the court to be fashioned The jury found the usage,the judge accepted or rejected it as furthering or impeding the conve-nience of trade The jury saw the particular problem, the judge ratio-nalized a solution for future use The jury revealed a fresh facet ofhuman experience, the judge framed it in the general policy of the

 The appointments as arbitrator are shown in the King’s Bench Rule Books, e.g., in PRO/KB 125/167: Williams v O’Brien, Trinity Term 1781; Blagden v Thornton, Michael- mas Term 1781; Symond v Edie, Trinity Term 1782; Herrezuelo v Sherer, Trinity Term 1782; and DeEquino v Hodgson, Trinity Term 1782 See also n 256, this chapter.