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Mansfieldism: Law and Politics in Anglo-America, 1700-1865

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Mansfieldism: Law and Politics in Anglo-America, 1700-1865 MANSFIELDISM: LAW AND POLITICS IN ANGLO-AMERICA, 1700-1865 A Dissertation Submitted to the Temple University Graduate Board In Partial Fulfillment of the Requirements for the Degree of DOCTOR of PHILOSOPHY by Henry Nicholas Buehner May 2014 Examining Committee Members: David Waldstreicher, PhD, Advisory Chair, Department of History Susan Klepp, PhD, Department of History Travis Glasson, PhD, Department of History Sally Hadden, J.D., PhD, External Member, Western Michigan University © Copyright 2014 by Henry Nicholas Buehner All Rights Reserved ii ABSTRACT Lord Mansfield is typically remembered for his influence in common law and commercial law, and his decision in Somerset v. Stewart, which granted a slave, brought to England, habeas corpus to refuse his forced transportation out of that nation by his master. Both conditions allowed observers to praise him for what they viewed as very modern notions about economy and society (capitalism and anti-slavery, respectively). Mansfield’s primary position as Chief Justice of King’s Bench in England, which contributed most of the only published material from him, shielded him from any scrutiny about his wider influence in general British governance in the period of his public career, roughly 1740-1790. Throughout his career, Mansfield played a large role in the general government of the British Empire. Beginning with his role as Solicitor General in 1742 and continuing after he became Chief Justice in 1756, Mansfield interacted and advised the highest members of the British ruling elite, including the monarch. Because the nature of British governance in the 18th Century was very porous, Mansfield partook in the exercise of legislative (through his seats in the House and Commons and Lords), executive (through a formal seat on the Privy Council and later in the King’s Closet), and judicial (through his roles as Solicitor and Attorney General, Chief Justice of King’s Bench, and temporary positions as Lord Chancellor) power practically simultaneously throughout his career. In these capacities, Mansfield contributed to imperial policy at a critical moment. He was a champion for the British Empire as the beacon of the most perfect society at that time – a perspective he developed through his education and experiences during the crucial formative years of the British nation. He channeled his support for Britain into a iii seemingly rigid dogma that saw any threat or challenge to British authority or culture as inherently illegitimate. In this regard, Mansfield favored British domination over the other imperial powers, and he immediately rejected the earliest complaints of the Americans over British rule. Because of the nature of his position within British governance, Mansfield’s view remained constant in a government that witnessed continual turnover. The potential of Mansfield’s influence was not lost upon the public. Many factions from “true Whigs,” such as John Wilkes, and American patriots viewed him as the epitome of the problem with the British government – its seemingly arbitrary, unconstitutional, and tyrannical posture toward everything. Mansfield posed a particular challenge for these groups because he was a Chief Justice, and they believed he was supposed to adhere to a strong notion of justice. Instead, they saw him continually leading their repression, and so they questioned the basis of the whole British system. Through pamphlets, newspapers, and visual prints, these groups identified Mansfield as a key conspirator, which they attributed to an anti-British disposition. In these ways, Mansfield and his opponents squared off over the definition of true Britishness internally and imperially. When these opponents gathered enough strength (Londoners during the Gordon Riots, and Americans with their War of Independence), they aimed to pull down Mansfield and his comrades for their violations. The former failed to overthrow society, but they arguably hastened a change in government. The latter succeeded in their movement to exit the Empire. The Revolution was not a total transformation for the Americans, however. They struggled to define their new nation and America had similar imperial aspirations. In this iv environment, Mansfield was the quintessential symbol of early national leaders’ bipolar attitudes towards Britain. Some leaders such as John Adams embraced their British heritage, and used Mansfield as a model to develop a strong, centralized, commercial nation. Other leaders such as Thomas Jefferson saw Mansfield as the chief villain to the idea of America. Jefferson coined the phrase “Mansfieldism,” which he identified as a caustic relationship between law and government that favored the development of political and legal elitism that challenged the interests and participation of common citizens. Jefferson viewed Mansfield as the essential symbol of the American anti- revolution. These first-generation independent Americans both remembered Mansfield for his direct participation in the imperial crisis, but for Adams and his fellow Federalists, they had to initiate redemption for Mansfield to justify their program to create America. The redemption was successful. American institutions used Mansfield to fine-tune the balance between their British heritage and uniquely American outlook. As successive generations of Americans emerged into the political sphere, they remembered his seemingly progressive positions on law and society as presented through his court decisions over his actual participation against their independence. Especially through a selective reading of his decision in Somerset, Mansfield became the legal prophet for abolitionist nationalism. His decision arguably provided a legal precedent against the institution of slavery, but it more importantly transformed into the moral imperative of the movement. In this manner, Mansfield became fully redeemed among Americans. v TABLE OF CONTENTS Page ABSTRACT iii LIST OF PICTURES ix CHAPTER 1. INTRODUCTION: UNCOVERING THE POLITICAL MANSFIELD 1 British History and the “Father of Modern Toryism” 6 Jefferson’s Concerns about Mansfield and the Legacy of the American Revolution 11 The Two Mansfields 18 A Note on the Use of Print and Visual Sources 28 2. THE FLUIDITY OF BRITISH IDENTITY 36 Mansfield’s Direct Contribution to the Debate on British Identity? 38 The Challenges of Identity in a Young Composite Nation 41 The Sting of Jacobitism 49 Mansfield’s Obscurity and the Innuendos of Mischief 53 The Viability of a Composite British Nation 67 3. THE MAN WHO MADE MANSFIELDISM AND THE PUBLIC THAT DEFINED IT 70 The Technical and Practical Education of a Young Upstart 72 The Unique Circumstances of Mansfield’s Entry to Political Power 82 The Call to Power 88 The Comforts of the Judiciary 95 The Exposure of Justice to Political Scrutiny 99 vi Mansfield’s Continuing Saga with John Wilkes 108 Junius, Mansfield’s Enduring, Anonymous Nemesis 116 The Melded Functions of British Governance 123 Mansfield and Cabinet Politics 128 4. THE CLASH BETWEEN IMPERIAL THOUGHT AND IMPERIAL REALITY, AND THE MANSFIELDIAN PANACEA 134 Public Schools and the Education of Empire 135 Experiencing Empire, Learning the Law 140 The Politics of International Balance of Power and the Hefty Cost of Empire 146 The Imperial Value of America and the Establishment of “Blue-Water” Policy 152 The Debate over Postwar Colonial Policy 163 The Bases for Imperial Debates over Authority 172 Mansfield on the Outside? 179 Mansfieldism as the Counter-Philosophy of a Revolution 194 The Fire of Mansfield’s Conviction 206 5. THE PUBLIC REBUKE OF MANSFIELD AND THE ULTIMATE ARTICULATION OF MANSFIELDISM 219 Mansfield and Religious Tolerance 223 The Anti-Mansfield Backlash 225 The Implications of the Gordon Riots for Mansfield’s Reputation and Mansfieldism 243 6. MANSFIELDISM REBRANDED FOR THE SAKE OF A YOUNG NATION 250 American Confidence in the Common Law and Mansfield’s Inconspicuous Redemption 262 vii The Mansfieldian Character of the Federalist Party 271 Thomas Jefferson’s Republican Challenge to Mansfieldian Federalism 281 The Mansfieldian Influence in American Constitutional Law 289 7. THE REDEMPTION OF MANSFIELD, THE REDEMPTION OF A NATION 306 Mansfield’s Decision, Mansfieldism, and the Issue of Slavery In Antebellum America 316 8. CONCLUSION: MANSFIELDISM IN CONTINUITY 337 BIBLIOGRAPHY 343 viii LIST OF PICTURES Picture Page 1. Scotch Amusements 8 2. The Hydra 24 3. The Trial of Mr. Cumberland… 32 4. The Way of the World 33 5. The Scots Triumph, No. 1 55 6. The North Star 57 7. The Thistle Reel 60 8. The Botching Taylor 64 9. Arms Designed for the People 102 10. Arms of Liberty and Slavery 118 11. Britannia in Distress 118 12. Sleepy Shepherd 132 13. The Waistcoat 160 14. The Political Cartoon for the Year 1775 162 15. What May Be Doing Abroad 184 16. The Premier 187 17. The Able Doctor 203 18. The State Blacksmiths 209 19. The Closet 211 20. Scotch Butchery, Boston, 1775 214 21. Bunkers Hill 216 ix 22. Argus 222 23. The Last Stake 244 24. Chatham’s Ghost 246 25. The Political Mirror 251 26. The Wonders of Westminster Hall 258 x CHAPTER 1 INTRODUCTION: UNCOVERING THE POLITICAL MANSFIELD Consider and compare for a moment the following two quotes from eminent political men during the early nineteenth century, one British, one American: Lord Mansfield, a man who may justly be called the father of modern Toryism, of Toryism modified to suit an order of things under which the House of Commons is the most powerful body in the State. You remember also that our lawyers were then all whigs, but when… the honied Mansfieldism of Blackstone became the Student’s Handbook, from that moment that Profession (the Nursery of our Congress) began to slide into toryism, and nearly all the young brood of lawyers now are of that hue. They supposed themselves indeed to be whigs, because they no longer know what whiggism, or republicanism means. William Murray, more famously Lord Mansfield, was the object of each writer’s focus. Both men were well versed in the background of Lord Mansfield: the first lived after the death of Mansfield but was a well-respected political historian of the period; the second achieved his legendary status at the height of Mansfield’s power and influence.
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