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When we explore the essential individuals at inflection points in the development of Western law, particularly the American legal tradition, there is one name that should stand out but is rarely mentioned: William Murray, 1^st Earl of Mansfield.

His reframing of England’s commercial law benefited not only England but laid the foundation for the new American economy. Plus, his legal rulings and advice to King George ultimately led to the Revolutionary War and America’s freedom from British rule.

It is easy to paint a panegyric to Lord Mansfield’s contributions to Western law.  According to Lord Campbell, he “framed the commercial code of his country,”[1] and thus, “conferred an incalculable benefit on English trade. [2] He stressed equitable flexibility in the law and “broke, once and for all, the old black-letter chain which Coke had riveted.”[3]

Credit must also be given to Lord Mansfield for significant support of religious dissenters (thus enabling religious freedom) and through a seminal decision (Somerset v. Stewart (1772)) enhancing the credibility of the antislavery movement in England and America.  These momentous contributions to Western law are clear and recognized by scholars.  As we will see, there are several more chapters (some not so worthy of approbation) in the tale of the man who may be the most important legal figure in the contour of the West.  His failure to shine in the pantheon of legal giants is likely due to his virulent opposition to American independence and the view of the revolutionary forefathers that the new country could develop its own law and systems independent of the vanquished mother country.

To appreciate the impact of William Murray in whole, we must sketch his times in combination with his early biography.  Born March 2, 1705, two years before the conjoining of England with Scotland in the Act of Union creating Great Britain, the relationship between England and Scotland was in substantial flux.  For years after the Act of Union, the Scottish royalists still clung to the dream of either breaking from England or installing James Edward Stuart (James II or the “Pretender”) as King of England.  Labeled “Jacobites,” these Catholic clans in the Scottish Highlands periodically would revolt, sending spasmodic waves of panic through Britain until the revolt died of disorganization and suppression by superior forces.  Murray’s family, including his father, the 5^th Viscount Stormont, came from a long lineage of Scottish royalists and were instrumental in the Jacobite cause.  Murray’s older brother, James, followed the Pretender to France where he was appointed “Secretary of State” for Scotland in the government in exile.  In France, Louis XIV supplied the Pretender with a palace outside Paris where “he held court and plotted to recapture the throne of England and Scotland”[4]  

It is noteworthy that when the Pretender and later his son, Charles Edward Stuart, (known as “Bonnie Prince Charlie”) engaged in aborted invasions of Scotland, they stayed at Scone Palace, the castle of the Murray family.  His family’s support for the Jacobite cause was to reverberate throughout Murray’s life.  “Murray’s vulnerability throughout his life to accusations of Jacobitism shaped his character in important ways.  It made him cautious and unwilling to take a stand on political issues or challenge the authority of government …”[5]

At an early age Murray was already recognized as bright, engaging and verbally gifted.  Before his teen years, he was translating Roman classics into English and was composing in and could speak Latin.  He also received a comprehensive grounding in English grammar which he later recognized helped his legal opinion writing and set him apart from those who received primary education in England.

He was also independent, adventurous, curious and resourceful and left home in Perth, Scotland and walked alone the approximately 400 miles to London at age 14 to continue his education.  It was the last time he would ever see his parents or his homeland, but his education at Westminster School and Oxford University and the connections he developed there, laid the foundation for his extraordinary career.

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[1] Chief Justice of England, Vol. IV, (Estes & Lauriat, 1873) p. 195)

[2] Buchan, John, Some Eighteen Century Byways – and Other Essays (William Blackwood & Sons, 1908) p. 86.

[3] Buchan, John, Some Eighteen Century Byways – and Other Essays (William Blackwood & Sons, 1908) p. 85

[4] Poser, Norman S., Lord Mansfield – Justice in the Age of Reason (McGill – Queen’s University Press, 2018) p.13.

[5] Poser, Norman S., Lord Mansfield – Justice in the Age of Reason (McGill – Queen’s University Press, 2018) p.14.

Justice Holmeswas a brilliant legal theorist, marvelous judicial prose stylist, wonderfully picturesque Boston Brahmin who also happened to be a Civil War hero.  He was virtually deified near the end and after his 50-year judicial career in the late 1920s and early 1930s.  His profoundly impactful legacy is constantly being re-evaluated as society evolves and particular latent “twisted” traits in his life and work become clearer.

The Holmes legend of the War hero, Boston Brahmin and progressive jurist has been defined in literature, a popular play and movies while at the same time his legal analysis, case determinations and personal opinions have come under harsh scrutiny.  With such a wide body of conflicting literature, writings, case opinions and popular culture by and about Holmes, perhaps the best one can hope for is to catch glimpses which demonstrate the certain parts of the essential nature of the man and his judicial legacy.  As we begin that process, let us look at this fascinating individual before he was appointed to the Supreme Court.  

Oliver Wendell Holmes was born into a prominent Boston Brahmin family on March 8, 1841.  His father was a distinguished doctor, author, poet, raconteur and Harvard professor.  Among other accomplishments, his father developed an influential theory regarding the contagiousness of puerperal fever.  His father came up with the term “Brahmin” to represent the upper tier of New England sophisticates who were as proud of their insularity as of their intellectual achievements.  He also founded and was a major contributor to the Atlantic Monthly and wrote a popular book, The Autocrat of the Breakfast Table.  His father’s values, renown and success drove the son to his own achievements.

His mother came from the prominent Boston family of Jackson who were well connected with financial business and legal interests.  Her father was the successful attorney, Charles Jackson, whose legal mentor (Theophilus Parsons) forecast that he (Jackson) would, “prove himself the American Blackstone.”  “But he never fulfilled Parsons’ prophecy.  That awaited his grandson.”[1]  His mother would help edit her husband’s works but still longed for more fulfillment than that of a supportive wife and homemaker.  Justice Holmes detected a streak of melancholy in his mother, which he felt he inherited “that seemed to afflict him when his career was not advancing on schedule or his work was not properly appreciated.”[2]  His mother was influential in shaping who he was to become.  From her he developed a skeptical temperament, rigid sense of duty and a drive to accomplish.[3]

Due to his family and his father’s influence, his early life was imbued by contact with and influence of New England intellectuals such as Henry Wadsworth Longfellow, Nathaniel Hawthorne and Ralph Waldo Emerson.  It was Emerson that was to have a profound impact on Holmes.  This impact was manifest, thorough and lifelong.  In his teens, he sought out Emerson for his autograph, his parents gave him two volumes of Emerson’s essays, and once upon meeting Emerson on the street told him, “If I ever do anything, I shall owe a great deal to you.”

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[1] Baker, Liva, The Justice from Beacon Hill, Harper Collings 1991 p. 39-40.

[2] Id. at p. 42.

[3] See, Novik, Sheldon M., Justice Holmes’s Philosophy, V. 70, Washington University Law Review, p. 70