Because of a British judges comments on how to treat American revolutionaries , 330 U.S. Supreme Court decisions cited Lord Mansfields writings (“If you don’t kill them, they will kill you”). These same very comments set a precedent within not only the U.S. courts, but courts around the world. It was found to be most applicable to terrorist.
Born in 1705 and being of Scottish origin, William Murray’s family found disfavor in the eyes of the British crown because of their support of the Jacobite cause. Overcoming these obstacles he rose to become the Chief Justice of the Court of King’s Bench, First Earl of Mansfield, and one of King George III’s closest advisors. He left a noticeable mark not only on British jurisprudence, but the United States Laws also.
My thanks to Norman Posner, law professor emeritus at Brooklyn Law School; and the author of “Lord Mansfield: Justice in the Age of Reason”, and Broker-Dealer Law and Regulation, and International Securities regulation: London’s Big Bang and the European Securities
Market. He provided the initial information with which to motivate me in writing this article. He is also an ABA member of which I am one.
SCOTUS cases used Lord Mansfields decisions from the 1700’s to support their American legal principles (my reinterpretation to dole out justice to such groups as ISIS are in the sub portions)such as:
– A confession must be voluntary to be admissible as evidence
a) It can be involuntary based upon the circumstance and as a matter of public or private necessity
– Libel is not protected by the first amendment.
a) For judicial purposes the first amendment can be skirted when the need arises.
– Custody disputes are decided based upon the welfare of the child.
a) The welfare must always be a consideration based upon the circumstances.
– Electronic surveillance for domestic security purposes requires a warrant.
a) If there is no time to get a warrant in an emergency, a “floating warrant should be issued.
– Habeas corpus applies tp prisoners being held by the government even outside the geographical boundaries of the United States.
a) Based upon the country, an international Habeas Corpus precedent should be set.
Even though his radical theories were at times in contrast to the British court system, he had no love for the American revolutionary movement. Because of comments made by him, he was brought to the attention of Thomas Jefferson who 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 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.”
Despite and other leaders of his day his legacy endured, and his reputation in the United States increased. Lord Mansfield declared slavery illegal in England, Wales, and Ireland. Not applying to the remaining colonies, they had to wait Parliament in 1833. He will be indirectly credited with helping to engineer the underground railroad to Canada.
My commentary is this; 1) a special court should be set up made up of Legal personnel (judges, prosecutor, defense attorneys, etc.), willing to travel where ever ISIS shows itself, 2) a special constitutional amendment attached to the international laws regarding terrorism should be drafted, 3) a moot court should be set up to give the teams practice on how to work through the trials, and 4) by combining the Patriot Act, SCOTUS rulings on Terrorism, Lord Mansfield’s decisions, we would prevent the loopholes that lawyers representing ISIS can come up with to defend their clients in an international court setting.