Belle (11 page)

The three common law courts (the courts of King’s Bench, Common Pleas and Exchequer), as well as the Court of Chancery, were crowded together in Westminster Hall. A huge, noisy, bustling building, Westminster Hall housed not only the law courts, but also a variety of market stalls selling books, prints, millinery, legal stationery, spectacles, jellies and sweetmeats. The atmosphere was that of a fashionable meeting place, and spectators lined up to witness sensational cases, especially those involving brilliant lawyers. It was a theatre. Outside Westminster Hall, ‘men of straw’ sold their services as witnesses, sticking a piece of straw in their shoes to identify themselves.

Mansfield’s court was the King’s Bench, and such was his success and reputation there that the other two courts fell by the wayside. He attracted a vast amount of legal business to the King’s Bench, giving him ‘a princely income’.
²
His bywords were equity and common sense. Justice could only be achieved when equity leavened the law. He strongly felt that the sclerotic legal system was completely unsuited to Britain’s position as ‘the greatest manufacturing and commercial country in the world’.
³
He was determined to speed up court procedure, especially in cases where there was very little doubt. Lawyers who had become used to long delays and postponing decisions were surprised to find that they now had to apply to the court, and give good reasons why they wanted a delay.

One of his first acts as Lord Chief Justice was to change the system for submitting ‘motions’, requests for civil cases to be heard. When the court was in session, all barristers were invited to submit motions, in order of their seniority. The chances of junior barristers being heard were thus very slim, and all the work went to the seniors, who were overworked and often didn’t have time to read their papers in advance.
⁴
Mansfield changed the system so that barristers were allowed to submit only one motion a day, and that if not all barristers had been heard by the end of the day, they could continue where they left off the next morning. He also changed the rules of ‘reserved judgment’, which meant that if a court had no doubts over the evidence presented to it, a judgement was to be made immediately, rather than being given at a second hearing, after the judge had had time to consider further in the light of precedent case-law.

He was particularly attentive to law students, reserving a special courtroom for them. Sometimes he would stop proceedings to explain a nice point of law to the students who came to soak up the atmosphere and learn about legal and court procedures. Attending his court was the best education they could have.

Mansfield’s other great reform was in mercantile law. His fellow judge and great friend Francis Buller called him the ‘founder of English commercial law’.
⁵
Mansfield’s aim was to update outmoded English merchant law to European standards. In Europe, there was a principle that a merchant was bound by his promises, not just his signed legal documents. This principle was based on the assumption of good faith on the part of the merchants, something completely lacking in English law. In Mansfield’s landmark English contract case,
Carter v Boehm
, he established the duty of utmost good faith (
uberrimae fidei
) in insurance contracts. He also equated non-disclosure to fraud. He was an ardent believer in free trade, so much so that when he was Solicitor General he had opposed a proposal to forbid English firms from insuring enemy ships in wartime. The French had traditionally insured their ships with English companies, and Mansfield feared that if they developed their own insurance industry during the war, this would have a detrimental effect on English insurers in peacetime.

Mansfield believed that mercantile disputes ought to turn upon ‘natural justices and not upon the niceties of the law’, and that commercial contracts must have a liberal interpretation. In a world where the rules had changed, precedent, the bedrock of England’s common law system, was not always his priority. ‘The law of England,’ he said, ‘would be a strange science indeed if it was decided upon precedents only.’ Mansfield suggested to his friend the actor David Garrick that ‘a judge on the bench is now and then in your whimsical situation between Tragedy and Comedy, inclination drawing him one way and a long string of precedents the other’.
⁶

He believed in collaboration within the judicial process, and wanted to use the knowledge and experience of experts. He introduced special juries of merchants – known as ‘Lord Mansfield’s jurymen’ – to sit in his courtroom. They were invited to dine with him in his house in Bloomsbury, and held him in high esteem. In the case of
Barwell v Brooks
, Mansfield said that ‘as the usages of society alter, the law must adapt itself to the various situations of mankind’.
⁷
He was said to be a hundred years ahead of his time. Entire books were written on his decisions, in such areas as
Elements of Insurance Law
(1787),
Marine Insurance
(1787),
Bills of Exchange
(1789) and
Merchant Shipping
(1802).

Another groundbreaking ruling in 1777, known as ‘Lord Mansfield’s Rule’ and still in use today, laid down that a child born into a marriage was a legitimate product of that marriage. In his own words, ‘the law of England is clear, that the declarations of a father or mother, cannot be admitted to bastardize the issue born
after
marriage’. This law protected children, making husbands responsible for their wives’ offspring even if they believed the child to have a different father.
⁸

Mansfield was respected for his ability to cut through procedural red tape. He was impatient with long-winded barristers and courtroom inefficiency. In order to discourage waffle, he would take out his newspaper and start reading. He is sometimes depicted as a rather humourless man, but nothing could be further from the truth. One of his trials involved an elderly woman accused of witchcraft. He ruled that she should be allowed to return home, and ‘if she did so by flying, no law prevented that’. On another occasion, a man had been accused of stealing a ladle. The case was thought to be particularly serious, because he was a lawyer. ‘Come, come, don’t exaggerate matters,’ said Mansfield. ‘If the fellow had been an attorney you may depend upon it, he would have stolen the
bowl
as well as the
ladle
.’
⁹

Mansfield was famous not only for the wit of his judgements, but also for his prodigious memory. He memorised volumes of Cicero’s works, and seldom wrote things down or spoke from notes. He inspired hero-worship, even amongst men who were politically opposed to him, such as the philosopher Jeremy Bentham and the lawyer and politician John Dunning. The latter told the painter Sir Joshua Reynolds that as a student he always went to hear Murray speak: ‘This was as great a treat to me, Sir Joshua, as a sight of the finest painting by Titian or Raffael would be to you! Sometimes when we were leaving the court, we would hear the cry, “Murray is up” and forthwith we rushed back, as if to a play, or other entertainment.’
¹⁰

James Boswell would attend court whenever he could, just to hear Mansfield, writing that he was ‘charmed with the precision of his ideas, the clearness of his arrangement, the eloquent choice and fluency of his language, and the distinct forcible and melodious expression of his voice’.
¹¹
In a wonderful analogy, Boswell described Mansfield’s unique ability to cut to the quick in a tricky and complicated dispute: ‘The cause was like a great piece of veal or other meat. The Court of Session could not find the joint. It was handed about through the fifteen [judges], and they tried at it but it would not do. Lord Mansfield found the joint at once and cut with greatest ease, cleanly and cleverly.’
¹²

Another brilliantly resolved case involved a beautiful and talented teenaged singer, Ann Catley, who was apprenticed to a music teacher who then ‘sold’ her to a rakish young baronet, who kept her as his mistress, and took the profits of her public engagements. Mansfield cut through the allegations and counter-allegations, ignored the whispers of scandal, and dealt out appropriate fines.

Nothing, it seems, could faze Lord Mansfield. Not even
Hayes v. Jacques
, the
cause célèbre
of 1777. The case involved the famous Chevalier d’Eon de Beaumont, who, though highly competent in all manly skills, had been dressed as a girl during his childhood. He retained a taste for female clothes throughout his life, even collecting a scrapbook of material on the subject of hermaphroditism. When his appearance in female dress at a masquerade ball in Paris was noticed by the Prince de Conti and King Louis XV, they decided to hire him as a spy to engage in secret diplomacy while disguised as a woman. In 1756 he was sent to Russia in the guise of ‘Mademoiselle Lia de Beaumont’, and became a confidant to the Empress Elizabeth. He resumed male costume a year later, and was awarded by King Louis for services rendered, and made a captain of dragoons. He continued working for the secret service, and as a member of the French Embassy in London from 1763 was involved in many political intrigues. From this period, numerous rumours spread to the effect that the Chevalier d’Eon really was a woman. In 1775 Louis XVI granted him a large state pension in return for the recovery of some state papers, on condition that d’Eon henceforth dress in the garments of the female sex.
¹³
This transaction prompted a fever of speculation. In the eighteenth century, people would gamble on anything. So it was that on 2 July 1777, the following report appeared in the
Morning Chronicle
:

Yesterday came on to be tried in the Court of King’s Bench, before Lord Mansfield and a special jury at Guildhall, an extraordinary cause, wherein Hayes was Plaintiff, and Jaques Defendant. The Plaintiff had paid the Defendant
one hundred guineas
, for which the Defendant had signed a policy of insurance to pay the Plaintiff
seven hundred guineas
whenever he could prove that the Chevalier D’Eon was a female. Mr Buller opened for the Plaintiff, and concluded he should prove
he
was a woman, which occasioned a good laugh. Mr Wallace opened at large, and though he said he could not go so far as his friend required, he should prove that the person called the Chevalier D’Eon is a woman.

After lengthy legal wrangling and the cross-examination of various witnesses, including a French medical man who had supposedly examined the Chevalier’s body but unfortunately could not speak any English,

Lord Mansfield, with his usual delicacy of precision, expressed his abhorrence of the whole transaction, and the more so, their bringing it into a Court of Justice, when it might have been better settled elsewhere, wishing it had been in his power, in concurrency with the Jury, to have made both parties lose; but as the law has not expressly prohibited it, and the wager was laid, the question before them was,
Who had won?
His Lordship observed, that the indecency of the proceeding arose more from the unnecessary questions asked, than from the case itself; that the witnesses had declared they perfectly knew the Chevalier D’Eon to be a woman; if she is not a woman, they are certainly perjured; there was, therefore, no need of enquiring how and by what methods they knew it, which was all the indecency.

He then told an anecdote about a wager for £100 entered into by two gentlemen in his own presence, regarding the dimensions of the celebrated statue the Venus de’ Medici. His ‘facetious, pointed’ manner of telling the story ‘set the whole Court, which was very full, in one universal fit of hearty laughter and good humour, beyond all that the indelicate part of the trial had done’. He then found for the Plaintiff.

The Chevalier d’Eon spent the rest of his life in England, conducting public fencing matches dressed in women’s clothing. When he died in 1810 it was discovered that, though his body had certain female attributes, it also had the all-important male one. So, strictly speaking, Mansfield had got it wrong, but in very delicate circumstances he had managed to deliver a skilled judgement that enhanced respect for both himself and the legal process. We can imagine a very jolly evening back home in Bloomsbury when he regaled the household with the story of his day. Deciding on a wager involving a transvestite must have been light relief from the complex insurance cases to which he devoted so much of his time on the King’s Bench – let alone the great question of the legal status of slaves in England.

9

Enter Granville Sharp