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April 30, 2014 The Modern Law Library

This 18th-century British judge helped SCOTUS decide the fate of Guantanamo detainees

By Lee Rawles

How did an 18th-century British judge whose advice on how to treat American revolutionaries was “if you do not kill them, they will kill you” come to be cited in more than 330 U.S. Supreme Court opinions?

William Murray was born in 1705 to a Scottish family in decided disfavor with the crown due to their support for the Jacobite cause. Yet he rose to become Chief Justice of the Court of King’s Bench, first Earl of Mansfield and one of King George III’s closest advisers—and on the way, left an indelible mark not only on British jurisprudence, but on the laws of the United States as well.

Lord Mansfield’s decisions from the 1700s have been cited in SCOTUS cases to support such bedrock American legal principles as:

• A confession must be voluntary to be admissible as evidence.

• Libel is not protected by the First Amendment.

• Custody disputes are decided based upon the welfare of the child.

• Electronic surveillance for domestic security purposes requires a warrant.

• Habeas corpus applies to prisoners being held by the government even outside the geographical boundaries of the United States.

Lord Mansfield, who died in 1793, was no fan of the upstart American colonists. Thomas Jefferson was so irked at Mansfield’s fervent opposition to the revolutionaries during the Revolutionary War that he declared, “I hold it essential, in America, to forbid that any English decision which has happened since the accession of Lord Mansfield to the bench [in 1756], should ever be cited in a court; though there have come many good ones from him, yet there is so much sly poison instilled into a great part of them, that it is better to proscribe the whole.”

But his legacy endured, and his reputation in the United States continued to grow. ABA Journal Podcast Editor Lee Rawles speaks with professor Norman S. Poser about his recent biography, Lord Mansfield: Justice in the Age of Reason, and how this particular British judge managed to have such a continuing influence on Anglo-American laws. We also discuss Mansfield’s Somerset decision, which eventually led to the abolition of slavery in Great Britain.

See also:

Wall Street Journal: “Book Review: ‘Lord Mansfield,’ by Norman Poser” (sub. req.)

In This Podcast:

Lee Rawles
Norman Poser is a law professor emeritus at Brooklyn Law School, and the author of Lord Mansfield: Justice in the Age of Reason, Broker-Dealer Law and Regulation, and International Securities Regulation: London’s “Big Bang” and the European Securities Markets. Prior to joining Brooklyn Law School’s faculty in 1980, he was with the American Stock Exchange as executive vice president for legal and regulatory affairs and senior vice president of policy planning and governmental relations. He was also in private practice, and an assistant director of the Division of Trading and Markets of the Securities and Exchange Commission.