The Black Must Be Discharged - The Abolitionists' Debt to Lord Mansfield
Stephen Usherwood shows how Lord Mansfield employed his precise legal mind and his reasoned humanitarianism to expose the iniquities of slavery - and thus helped pave the way for its abolition.
The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasions, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.
With these words, delivered on June 22nd, 1772 in Westminster Hall, then the home of the Royal Courts of Justice, the Lord Chief Justice of England, Lord Mansfield, concluded his judgment on the case of a runaway black slave, James Somersett, who had been brought before him on a writ of habeas corpus. The writ had been obtained by Granville Sharp, a clerk in the Ordnance Office, who had engaged no less than five prominent barristers to plead. An equally strong team had appeared for the owner, Charles Steuart, Receiver-General of Customs in North America, a Virginian by birth. Mansfield, in an earlier case concerning a runaway called Lewis, had remarked:
I don't know what the consequences may be if the masters were to lose their property by accidentally bringing their slaves to England. I hope it never will be finally discussed; for I would have all masters think them free, and all negroes think they were not, because then they would both behave better.
By this argument he persuaded Lewis's owner not to reclaim him, and he used it again in the Somersett case, but Charles Steuart and the planter interest in America were determined that this should be a test case in which property in slaves should be clearly recognised by the law of England. There were, Mansfield said, some fourteen thousand slaves in Britain and at 150 a head they were worth 700,000 pounds; the setting of them free all at one time would be 'very disagreeable'. It was his custom to use such under-statements in order to make the parties in litigation pause and think again. After the Somersett decision thousands of blacks were put on the streets by owners unwilling to pay them wages. This harsh behaviour was what the Lord Chief Justice had anticipated.
Mansfield was sixty-seven and had presided over the busy court of King's Bench for sixteen years, retaining a remarkable sprightliness of mind and body. In the early 1760s he had been reviled by two journalists, John Wilkes, MP, and the man who used the pen-name Junius. They took advantage of the racial hatred felt against Scots working in England to attack the Prime Minister, Lord Bute, and Lord Chief Justice Mansfield, who as William, fourth son of David Murray, fifth Viscount Stormont, had been born at the home of his ancestors, Scone Palace near Perth. Though he had come to England at the age of thirteen and never been back to Scotland, it was enough for his enemies that his elder brother James and his sister Margery were staunch Jacobites, and had accompanied James III into exile after the failure of the 1715 rebellion.
William had been sent to Westminster School, then considered the best school in the kingdom, where his ability in Latin and Greek won him a King's Scholarship. From there he went to Christ Church, Oxford, where he read, among other things, the work of the college's famous philosopher, John Locke, an Old Westminster, whose opinion on slavery ran:
Slavery is so vile and miserable an Estate of Man and so directly opposite to the generous Temper and Courage of our Nation that it is hardly to be conceived that an Englishman, much less a Gentleman, should plead for it.
Echoes of this passage are clearly audible in the work of Montesquieu and Rousseau and of course in the wording of the Somersett decision.
After graduating, William Murray entered Lincoln's Inn, where, like all law students, he found that the law of England was a labyrinth, for the most part judge-made, and nobody knew from one case to the next what it was. He married Elizabeth Finch, a daughter of the Earl of Nottingham, one of the Whig peers responsible for inviting William of Orange to depose James II. Eloquence in the courts and his wife's many family connections in the Whig party opened the way to his appointment as Solicitor-General, and later Attorney-General, in the Cabinets of Henry Pelham and his brother, the Duke of Newcastle, both of them Old Westminsters. George II and his grandson George III regularly consulted him on both political and family affairs. He was one of the first to recognise the genius of two Scottish architects, Robert and James Adam, and commissioned them to enlarge and beautify Kenwood, his house on Hampstead Heath. As a regular theatregoer he acclaimed the rising star, David Garrick. 'A judge on the bench, my dear Garrick', he once said, 'is now and then in your whimsical situation between tragedy and comedy; inclination pulling one way and a long string of precedents the other.'
From his first year on the bench the Lord Chief Justice had begun to reorganise the courts, checking the calculated verbosity of some advocates, but welcoming gifted students to places near him, where he could quietly explain points of law while cases were in progress. One of his proteges, William Blackstone, was elected to a new professorship of law at Oxford, the Vinerian, and in 1765 published commentaries based on his lectures which were treated with almost universal reverence. One passage in them on the law of slavery rejected the provisions of the Justinian code and the Roman civil law.
To a man of Mansfield's intellect and accomplishments the idea that a single judgment could bring down the vast institution of black slavery, as Granville Sharp and other friends of the blacks supposed, was absurd. For the Mansfields the Slave Trade was not a subject to be veiled in polite silence. In the 1750s they had taken into their household an infant girl, born of a mulatto mother, rescued when pregnant from a Spanish vessel. One of their nephews had been in command of the warship that captured her. They named the baby Dido after the deserted African queen in Virgil's Aeneid and when she grew up entrusted her with the management of the farm attached to Kenwood. She was the constant companion of a niece who lived with them, Lady Elizabeth Mary Murray, and the two posed for their portrait together in the garden at Ken- wood. That a black should be so trusted surprised visitors, and one of them, the American-born Governor of Massachusetts, Thomas Hutchinson, wrote about her in very disdainful terms. On another occasion his diary mentions the pleasure that Mansfield took in recounting how he had been able to restore two young Africans to their family, though, unlike Somersett, they had never set foot in England until brought to his court by writ of habeas corpus:
He gave me a particular account of his releasing two Blacks from slavery, since his being Chief Justice. A ship belonging to Bristol was upon the coast of Guinea. The two nations of North and South Callibar had a controversy – I don't recollect what it was about, but they agreed to leave it to the English Captain, and they came aboard his ship to the number of 250. He made them all slaves – carried, or sent them to Martinico, where they were sold. By some means or other these two were sent to Virginia, being brothers, and sons to the chief man of one of the nations, and called by Lord M[ansfield] Princes. After having been 6 or 7 years in Virginia, they absconded from their master – hid themselves in the hold of a ship bound to Bristol, and were not discovered until the ship was upon her voyage. Upon her arrival at Bristol, they found a way to make their case known, and to apply to Lord Mansfield for an Habeas Corpus. Upon enquiry, there was full evidence of the fact, the Master of the Bristol ship being in England, and witnesses who were in Guinea at the time; but there was a fair purchase by the Virginia planter, and the Master of the ship in which they had escaped, kept them confined in order to return them, and to avoid the penalty to which he would be liable by the laws of the Colony, for bringing them away. However, the Writ issued, and I think they were brought up to London. They acknowledged the two nations were at war, and that captives were made on both sides with design to sell them for slaves; and if they had been taken and sold, they would have disdained seeking relief. The whole transaction was beyond sea, and they had never been ashore until he brought them ashore by the Writ of Habeas Corpus. Under all these difficulties, he says he would have found a way to deliver them. After waiting some considerable time, the Master of the ship who had thus kidnapped them, with others, at Bristol, thought it advisable to make up the matter, and to engage tosend the two Princes home to Guinea. How the Virginia planter was satisfied his Lordship did not say, but he seemed much pleased at having obtained their relief. The rest of the 250 probably are dead in slavery, and the villain who captivated them has escaped the judgment of man.
Somersett's rescuer, Granville Sharp, was the twelfth of the fourteen children of an Archdeacon of Durham and the grandson of an Archbishop of Canterbury. Before going to the Ordnance Office he had been apprenticed to a City of London linen draper, in his spare time mastering Greek and Hebrew. He and his brothers and sisters loved music and formed a small orchestra; the sisters played the spinet; William, a physician in Mincing Lane, the organ and French horn; James the jointed serpent; John the cello, and Granville the flute and oboe (he used to sign himself GA). Among the visitors to their house were the Prime Minister, Lord North; Oliver Goldsmith; David Garrick; and Sheridan's beautiful wife, the singer Elizabeth Linley. Once, when the family, in a river barge fitted out for musical parties, was passing Windsor, the King heard them from the bank and asked them to stop and play for him.
Seven years before the Somersett case the Sharps' interest in the condition of blacks had been aroused almost by accident; a slave named Jonathan Strong, after receiving a severe beating from his master, a Barbados sugar planter, fled into the street, collapsed at the door of Dr. William Sharp's surgery and was taken to St. Bartholomew's Hospital, where he made a good, though slow, recovery. After that the Sharps found him a place as errand boy at a chemist's. Two years later Granville had a message from Jonathan to say that he was held in the Poultry Compter, a City prison, his former owner having seized him in the street and placed him there pending shipment to Barbados. A legal battle followed, but in the course of the hearing Mansfield persuaded the planter to drop his case. From that moment Granville redoubled his efforts to find legal means of setting all the slaves in Britain free. He did not fear, as Mansfield did, the hardships that would ensue for those liberated.
The Somersett case could not have come at a more awkward time for the young and fragile British Empire in the West. Only twelve years before, Wolfe's victory over the French in Canada had extended the King's dominions from Hudson's Bay to the Gulf of Mexico and from Labrador to Florida, yet this did not prevent Virginian tobacco planters, already resentful of taxes imposed from Westminster, from being irritated when they came to London and saw hundreds of shops making large profits from selling their snuff; while it was fashionable in the houses of the nobility to talk of the iniquities of slave-owning.
The state of opinion of the onlookers in Westminster Hall when Somersett's case was being heard may be judged by a remark made by one of the barristers, John Dunning, MP, briefed by the owner:
It is my misfortune to address an audience much the greater part of which, I apprehend, wish to find me in the wrong.
At the theatre an old play, Oroonoko , or the History of the Royal Slave , was frequently revived; in 1774 Garrick played the name part and Mrs. Cibber his true love Imoinda. Dr. Johnson, who employed a black servant, Francis Barber, and left him property in his will, had been known to raise his glass to the success of the next slave revolt, and said in his pamphlet Taxation No Tyranny; an answer to the Resolutions and Address of the American Congress :
How is it that we hear the loudest yelps for liberty among the drivers of negroes?
Such language was wholly alien to Mansfield, not because he was without feeling for the downtrodden, but because he foresaw that if the slaves were removed from the jurisdiction of Parliament their conditions would become worse, not better. Burke's aphorism: 'It is no inconsiderable part of wisdom to know how much of an evil ought to be tolerated' exactly expressed Mansfield's practical commonsense.
In the sugar islands of' the Caribbean the evil of slavery was at that time even more firmly entrenched than in British North America. Ever since the sixteenth-century plantations, crushing mills and refineries had proliferated, first on Spanish and then on French, Dutch and British, territory, and the home governments looked upon the revenues of the sugar trade as a valuable national asset. The British planters were moreover convinced that sugar could not be produced without a continuous supply of black slaves brought over from Africa, and they had some fifty MPs in the Commons to defend their interests. Most of the countries of western Europe sent slave-ships to West Africa, where rulers of the coastal states were eager to barter men, women and children for such coveted goods as gunpowder, cloth and brandy, but by the 1770s the British were the main carriers. From Liverpool and Bristol hundreds of ships set out on their triangular course, first, laden with barter goods to Africa, then by the hazardous Middle Passage through the doldrums to the slave markets of the Caribbean, and lastly, with cargoes of sugar and molasses to England. The defenders of this commerce, on which so many shipbuilders, textile merchants, arms manufacturers and others were dependent, predicted vast economic ruin if the carrying of slaves were stopped. The navy, they added, would lose a valuable supply of experienced seamen ready for call-up in time of war; and, they protested, the slaves would no longer exchange the horrors of tribal warfare in Africa for peaceful labour in the colonies. These proved powerful arguments and it took the planters' opponents many years to demolish them.
The main religious impulse towards abolition came from Nonconformists and from the Evangelical movement in the Church of England. The Quakers were particularly energetic, and one of them, Anthony Benezet, who came over from Pennsylvania, aroused not only fellow Quakers but the Methodists. John Wesley and his brother Charles, the hymn-writer, who had as young men been to America, took fire. In Thoughts upon Slavery , published in 1774, John addressed his followers in his most commanding style:
Immediately quit the horrid trade. At all events be an honest man. This equally concerns every merchant who is engaged in the slave trade. It is you who induce the African villain to sell his countryman, and in order thereto, to steal, rob, murder men, women and children without number by enabling the English villain to pay him for so doing... Has gold entirely blinded your eyes and stupefied your heart?
The most prominent Methodist in Parliament was William Legge, second Earl of Dartmouth, Secretary of State for the Colonies. He was a distant relative of Lady Mansfield and, like Charles Wesley, an Old Westminster. One of his closest friends was Henry Thornton, a rich City merchant, the patron of the Reverend John Newton, an Anglican for whom he obtained the living at St. Mary Woolnoth close to the Bank of England, the only Evangelical church in the City. Newton, who had been a slaver-captain, but quitted the trade, was a most persuasive witness against it. As Vicar of Olney in Bedfordshire, he had befriended William Cowper, another Old Westminster, who shared his views on slavery and in the course of The Task , celebrated the Somersett judgment:
We have no slaves at home – Then why abroad?
And they themselves once ferried o'er the wave
That parts us, are emancipate and loosed.
Slaves cannot breathe in England; if their lungs
Receive our air, that moment they are free,
They touch our country, and their shackles fall.
That's noble, and bespeaks a nation proud
And jealous of the blessing. Spread it then,
And let it circulate through every vein
Of all your empire; that wben Britain's power
Is felt, mankind may feel her mercy too.
The reception given to Mansfield's views on slavery encouraged the Abolitionists to seek a similar judgment in the Scottish courts, where the legal system was wholly different, being based on the Justinian code. In 1778 a black named Joseph Knight, whose Scottish owner had purchased him in Jamaica and brought him to Scotland, claimed his freedom, and, after failing in the court of first instance, appealed, with Abolitionist support, to the Edinburgh Court of Session with its fifteen judges. The President and four others found against Knight, but the majority, aware of Mansfield's 1772 judgment, set him free.
In 1782 a particularly horrible case of cruelty to slaves came on appeal to Mansfield's court. Gregson, a Liverpool shipping firm, had sued the insurers of one of their slavers, the Zong , for non-payment of a claim. The Zong had made the passage from Africa to Jamaica under an inexperienced captain, who died before the case came before the Guildhall magistrates. The mate told the court that they failed to make their intended land-fall, and the captain, fearing that he would run short of water, ordered that 133 of the slaves be thrown overboard in order to conserve supplies for the rest. He showed no compunction for having obeyed his captain's order. The owners claimed that they were entitled under their insurance policy to the value of the drowned slaves. The insurers, who refused to pay, brought evidence that the Zong had been carrying five days' water at the time the order was given. In spite of this, the magistrates found for the owners. The insurers then appealed to Lord Mansfield's court, where their counsel argued that the drowning of the slaves was murder. The Solicitor-General, pointing at Granville Sharp as he sat in court, denounced all such appeals to sentiment. Mansfield agreed that no charge of murder could be considered:
Though it shocks me very much to say so, the case of the slaves was the same as if horses had been thrown overboard.
There was, he concluded, no good evidence that the Zong had been foul or leaky; and none that the jettison had been necessary; and on these grounds he ordered a new trial. At this, the owners gave up their case, but Granville Sharp did not let the matter rest. He had not been aware of the Zong case till it was brought to his notice by a free black, Olaudah Equiano, whose published autobiography became very well known. At the age of ten he had been kidnapped near his father's home in what is now Nigeria and sold into slavery in America. On being taken to England he had been able, following the Somersett judgment, to buy his freedom, which cost 40 pounds, and to join the navy. He had seen active service in the Mediterranean, the Caribbean, north Atlantic and the Arctic (where he served in the same ship as the youthful Horatio Nelson).
In disposing of the owners of the Zong the Lord Chief Justice, by comparing lost blacks to horses, had in one cutting phrase done as much for the Abolitionists as a dozen pamphlets. Granville Sharp followed this victory with an appeal to the Prime Minister, the Duke of Portland, asking that the Royal Navy should prevent the recurrence of such atrocities on British ships. The pathetic illusion of the Abolitionists was that Parliament only had to declare the trade illegal for it to be brought to an end. Even if the Navy had possessed steamships it would not have been able to enforce such a regulation as Sharp asked for, especially when the American cotton plantations, which supplied the new steam-driven mills of Lancashire, required an ever-increasing number of workers.
Among the Anglicans who publicly deplored the Trade was Mansfield's school-friend William Warburton, Bishop of Gloucester, who did so when addressing the very influential Society for the Propagation of the Gospel. Granville Sharp, writing to another Old Westminster, John Hinchcliffe, Bishop of Peterborough, in 1781, said that besides the two Arch- bishops, the bishops of London, Rochester, Norwich, Carlisle, Llandaff, St. Asaph, Bristol and Worcester also favoured abolition, but in the 1780s the conversion of the young MP for Hull, William Wilberforce, one of the closest friends of the Prime Minister, William Pitt, seemed to bring success within reach. Two Scots, Sir Charles and Lady Middleton, introduced him to the Reverend John Newton and to a neighbour of theirs, the Reverend James Ramsay, vicar of Teston, a village on the Medway. Sir Charles, who was Comptroller of the Navy, lived at Barham Court, where he entertained a large circle of friends, including the Prime Minister's cousin, William Morton Pitt; Beilby Porteus, Bishop of London; and the writer Hannah More, who became an ardent Abolitionist. Ramsay's knowledge of black slavery had, like Newton's, been gained at first hand. Thirty years earlier, having trained as a surgeon at Aberdeen, he had joined the Navy and served under Sir Charles in the West Indies. When forced to leave the Navy after breaking a hip, he had been ordained and served as a parish priest in St. Kitts for nineteen years, during which he kept careful records of the number of slaves brought over from Africa, the number lost on each voyage, and the length of time that each worked after landing. He also noted the type of punishments inflicted on recalcitrant plantation workers, and instances of whites escaping from the penalties of breaking the law. His essay on the Treatment and Conversion of African Slaves in the British Sugar Colonies , published in 1784, incorporated some horrifying statistics and provoked a storm of abuse from planters. It also decided a young Cambridge graduate, Thomas Clarkson, to make the Abolitionist cause his life work. Travelling from port to port in search of evidence, he was often met with silence or intimidation, but his researches in Liverpool revealed that in 1786, of 3,170 seamen sailing on slavers, at least 20.3 per cent died and 34.7 per cent more deserted or were discharged, either in West Africa or the West Indies; in 1784-85, 23.7 per cent of those sailing from Bristol died and 26.3 deserted or were discharged. Later another Quaker, Sir Fowell Buxton, collected evidence of slave mortality on Liverpool ships; in 1791, out of 15,754 carried, 8.75 per cent died, and in 1792 out of 31,554 17 per cent. In short, the Middle Passage, so far from being a school for seamen, was often their watery grave, claiming proportionately more white than black victims.
When Wilberforce, after several secret consultations with Newton, finally decided to tell Pitt of his intention to attack the trade in Parliament, his proposal was well received and at first Pitt made several eloquent speeches in his support, but the Revolution in France and its repercussions in the Caribbean put the whole matter in a different light. An ancient monarchy seemed to be slipping into anarchy; her black subjects in San Domingo rose in revolt, massacring the whites and burning their houses and mills. This, said the opponents of abolition, was what came of proposing to emancipate blacks. Nonetheless Clarkson visited the French Assembly and, being warmly greeted by the Abolitionists there, remained blind to the fact that few whites were willing to give Liberté to blacks. By 1793 Britain was once more at war with France, and those Englishmen who had rejoiced when, four years earlier, the Bastille fell, appeared either fools or traitors. Not until 1804, when the menace of Napoleon had replaced that of the Republic, did the Commons pass a law forbidding the carrying of slaves in British ships. Newton, though nearly blind, wrote to congratulate Wilberforce. Whether a wreath was laid on Mansfield's grave in Westminster Abbey is not recorded. Yet without him to apply the light of reason to the centuries-old institution of slavery and expose it in precise legal terms, the Abolitionists would have found it infinitely harder to persuade Parliament to declare it illegal. His chosen weapons had not been dramatic propaganda for some new statute, but the sharp sword of wit, the sunshine of an imperturbable good humour and the charm of profound modesty. One of his contemporaries noted that whenever he spoke he kept himself in the background, persuading listeners that they were making up their own minds when in fact they were yielding to his advocacy. Today, though his judgments are studied with reverence within the legal profession, his wisdom and statesmanship on the broad field of imperial policy are almost forgotten. Now is the time to bring him out of the shadows and to see him whole.