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New Light on Mansfield and Slavery

Published online by Cambridge University Press:  10 January 2014

James Oldham
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Extract

Popular history often credits Lord Mansfield with freeing the slaves in England by his decision in the Somerset case. That he did not do so is by now agreed and is a point featured in modern scholarship on slavery. This is the main burden, for example, of F. O. Shyllon's Black Slaves in Britain (1974). How extensively the popular history should be revised has not been settled. Newly discovered sources now permit a reassessment of this question.

When the Somerset case arose in 1772, it was brimming with portent. The largest specter was the supposed mercantile dislocation that would follow abolition. Additional questions seemed unavoidable, such as the legality of a contract between a slave and his master, and the implications for other contracts if the slave contract were invalidated. The protracted case was an occasion of high drama in which early abolitionist efforts (especially those of Granville Sharp) were pitted against vested trading interests.

Mansfield was caught in the middle. He was genuinely ambivalent about the subject of slavery. He accepted and endorsed the widely assumed mercantile importance of the slave trade, yet he doubted the validity of theoretical justifications of slavery, and he sought to redress instances of individual cruelty to slaves. By drawing on previously unexamined manuscript reports of the Somerset case, Lord Mansfield's trial notes, and newspaper accounts of the Court of King's Bench activity, this article will demonstrate the extreme delicacy of Mansfield's position and will establish more fully than has before been possible the ways in which Mansfield accommodated the various competing interests. In the process, the question of exactly what Mansfield said in his Somerset opinion should be put to rest.

Type
Research Article
Information
Journal of British Studies , Volume 27 , Issue 1 , January 1988 , pp. 45 - 68
Copyright
Copyright © North American Conference of British Studies 1988

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References

1 Shyllon, F. O., Black Slaves in Britain (London, 1974 [published for the Institute of Race Relations])Google Scholar.

2 Compare Shyllon with Fiddes, Edward,“Lord Mansfield and the Sommersett Case,” Law Quarterly Review 50 (1934): 499–511Google Scholar; Wiecek, William M.,“Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World,” University of Chicago Law Review 42 (1974): 86–146Google Scholar; Davis, David Brion, The Problem of Slavery in the Age of Revolution, 1770–1823 (Ithaca, N.Y., 1975)Google Scholar, chap. 10.

3 Sharp was an early abolitionist who was the moving force behind the Somerset case and other eighteenth-century efforts to eliminate slavery in England. He is, with good reason, lionized in Shyllon's book.

4 [Earl of Sheffield], Observations on the Project for Abolishing the Slave Trade (London, 1790)Google Scholar; a second nonanonymous edition came out in 1791. Sheffield also spoke in opposition to Wilberforce's motion for abolition in 1791 in Parliamentary History, 29: 358Google Scholar.

5 Earl of Sheffield to Viscount Stormont, March 31, 1790, Perth, Scotland, Scone Palace MSS, 2d ser., bundle 1385.

6 Sheffield, p. 65.

7 Ibid., p. 55. To supply slaves for the Commonwealth, Sheffield proposed a bonus payment scheme to invigorate a sort of“slave-farming” in Jamaica, paying ten pounds to each planter for a slave child reared to eight years, and twenty shillings to each Negro mother when the child attained one year–“which she will consider as a great reward.” This way the only imported slaves needed would be“real African convicts and prisoners of war,” and this would be “a satisfaction” (Ibid., p. 24).

8 Ibid., p. 57.

9 Davis points out that Adam Smith, Edmund Burke, and others gave at least limited eighteenth-century economic justifications for abolition, including “[t]he heavy losses of English seamen engaged in the slave trade, together with the depopulation of the slave-labor force (at a time when the demand for labor in England was increasing)” (pp. 351–52).

10 Ibid., p. 424, n. 67.

11 Cobbett, W., Howell, T. B., et al., eds., State Trials, 34 vols. (London, 1809–1828), 20: 79Google Scholar (hereafter cited as State Trials), reprint of Capel Lofft's report. The figures of 14,000 and 15,000 referred to the slave population in England alone, the loss of which Mansfield estimated would immediately cost proprietors over £700,000 (at £50 per slave), plus incalculable indirect costs (State Trials, 20:79–80Google Scholar). See also Shyllon, pp. 105, 116, 171. Additionally, in the printed report of the case (State Trials, 20:70Google Scholar), Mansfield remarked, in colloquy with Wallace, counsel for the Crown, that the Court must consider the proprietors because “there being so great a number [of slaves] in the ports of this Kingdom, that many thousands of pounds would be lost to the owners, by setting them free.” To this: “A gentleman observed, no great danger; for in a whole fleet, usually, there would not be six slaves.”

12 Rex v. Stapylton, 1771, unreported but described in detail in manuscripts of and works about Granville Sharp and discussed by Shyllon (n. I above), pp. 43–54. The case also appears in Lord Mansfield's trial notes (see n. 24 below).

13 Hoare, Prince, Memoirs of Granville Sharp, Esq. (London, 1820), pp. 60–61Google Scholar (quoting “Minutes of the trial of Thomas Lewis, in the Court of King's Bench, on the 20th of February, 1771, in the possession of the African Institution”).

14 Wiecek (n. 1 above), pp. 88–95, gives a full and careful analysis of the background.

15 Levinz, report., Butts v. Penny (King's Bench [KB] 1677), vol. 83 of English Reports (ER) (London, 1930), 2: 201Google Scholar. Holt's disapproval of the Butts case is reflected in two decisions: Chamberlain v. Harvey (KB 1697), reported at Carthew, p. 396 (ER. vol. 90), Modern 5:186 (ER, vol. 87), and Lord Raymond 1:146 (ER, vol. 91); and Smith v. Gould (KB 1705–6), reported at Salkeld 2:666 (ER, vol. 91) and Lord Raymond 2:1274 (ER, vol. 92).

16 Wiecek, pp. 90–91.

17 Salkeld 2:667.

18 Wiecek, p. 93.

19 Joseph Davy's notes, Michaelmas 1705–Trinity 1706, fol. 22. The original manuscript is at Harvard Law School. It can be seen on microfiche in the English Legal Manuscripts Project edited by J. H. Baker and cataloged in Baker, J. H., English Legal Manuscripts, 2 vols. (Zug, Switzerland, 1975), 1: 37Google Scholar.

20 Wiecek, pp. 93–94. Also, a manuscript report of a 1733 King's Bench case brought against “Ann, a black” for “Insulting and abusing her Master and being an idle and disorderly person and for want of finding Sureties” indicates, “Cur. refused to Enter into Enquiry of the property” (Rex v. Ann, Harvard Law School Long Notebooks, MS 4055, 3. Baker, p. 66, 1). (The case was heard near the end of Lord Raymond's chief justiceship.)

21 Ambler, report. Pearne v. Lisle (Chancery 1749), p. 75, ER, vol. 27; discussed in Wiecek, p. 94.

22 Eden, report., Shanley v. Harvey (Chancery 1762), ER, vol. 28, 2: 125.

23 Wiecek, pp. 94–95.

24 Trial notes of Lord Mansfield, February 20, 1771, Middlesex, 472 nb., p. 212. About half of the trial notes kept by Lord Mansfield of jury trials he conducted at Westminster Hall, the Guildhall of the City of London, and on assize were discovered in 1967. See Hewart, Edmund, Lord Mansfield (London, 1979), p. 49Google Scholar (as corrected in 1984 introduction to softcover ed.). With the cooperation of the current (eighth) Earl of Mansfield, I have in press an edition of selected trial notes, which is to be a title in the Studies in Legal History sponsored by the American Society for Legal History, University of North Carolina Press.

25 Shyllon, p. 43.

26 Trial notes of Lord Mansfield, 472 nb., pp. 217–18.

27 Shyllon, p. 45.

28 The quotations and other particulars of the argument are taken from Hoare (n. 13 above), p. 59.

29 Ibid., pp. 59–60.

30 Ibid., p. 2.

31 Shyllon, p. 53.

32 Ibid. The procedure at the time required at least four days to pass between conviction and judgment, and it was up to the prosecutor's attorney to arrange to have the defendant brought up for judgment. In felony cases, the defendant would be imprisoned, but in misdemeanors the defendant would not be imprisoned prior to the jury verdict. On conviction,“if the defendant be present, he will of course be committed during the interval, unless the prosecutor will consent to his liberation on his recognizance to appear and receive judgment.” If not present in court,“a capias is awarded and issued to bring him in to receive his judgment; and if he absconds, he may be prosecuted even to outlawry.” See Chitty, Joseph, A Practical Treatise on the Criminal Law (London, 1816), 2: 664–65Google Scholar. It is unlikely that Stapylton was present at the time of his conviction, but in any event, he was not then committed.

33 Trial notes of Lord Mansfield, 472 nb., p. 218.

34 Shyllon, p. 173.

35 See in this connection the earlier discussion of Lord Sheffield's 1790 pamphlet against abolition.

36 Washburn, Emory, “Somerset's Case and the Extinction of Villenage and Slavery in England,“ Proceedings of the Massachusetts Historical Society, vol. 7 (Boston, February 1864), pp. 323–24Google Scholar.

37 Shyllon, p. 111.

38 Douglas, report., Rex v. Inhabitants of Thames Ditton (KB 1785), ER, vol. 99, 4: 300.

39 Wiecek, pp. 141–46.

40 Wallace, John William, The Reporters Arranged and Characterized with Incidental Remarks, 4th ed. (Boston, 1882), p. 452Google Scholar. Nadelhaft, Jerome, “The Somerset Case and Slavery: Myth, Reality, and Repercussions,” Journal of Negro History 51 (1966): 193Google Scholar.

41 These are described in more detail in Wiecek. p. 142.

42 Shyllon, p. 110, n. 1; Davis, pp. 476–77, n. 13.

43 Davis, Ibid.

44 Shyllon, p. 110, n. 1.

45 Known by the sobriquet “Serjeant Labyrinth,” Serjeant Hill was an eccentric barrister with an encyclopedic knowledge of precedent, who apparently had developed a thoroughgoing system for keeping records of decided cases. The original manuscripts are at Lincoln's Inn Library and can be seen in Baker (n. 19 above). The report of the Somerset case is to be found in Baker, MS 10, 2:81. The Dampier MSS at Lincoln's Inn Library are not included in the English Legal Manuscripts Project; they are made up of personal copies of Paper Books and related documents of four of the puisne judges on the Court of King's Bench—William Ashhurst, Francis Buller, Soulden Lawrence, and Henry Dampier. Among the Ashhurst Paper Books (APB, bundles 1–24) are papers on the Somerset case. On the reverse side of the pleadings are Judge Ashhurst's notes of Lord Mansfield's opinion, written down as the opinion was delivered.

46 I include Lofft, even though he wrote “moral or political” rather than “natural or political.” Possibly, Lofft wrote the wrong word or misread his own shorthand, or perhaps he considered the words “natural” and “moral” as interchangeable in context.

47 See, e.g., the account of him in the Dictionary of National Biography.

48 A version identical to the Scot's Magazine report appeared in the Public Advertiser, June 24, 1772; the London Evening Post, June 23–25, 1772; and in the General Evening Post, June 20–23, 1772. In the latter paper, the report was said to be communicated by “A Constant Reader, who used notes he took at the trial and his memory in writing it up.”

49 Davis, p. 477, n. 13.

50 Hoare, p. 88. According to Prince Hoare, all quotations, as this one, were taken verbatim from the shorthand writer's copy of “The Whole Minutes of the Trial, in MS” held by the African Institution. Ibid., pp. 75–76n.

51 Quoted by Davis, pp. 477, n. 13; 509. Shaw was referring to the Lofft version of Somerset, which is more difficult to support than if based on the Scot's Magazine. But even Lofft's version gave Shaw more interpretative room than would be allowed by the Hill manuscript.

52 Davis, p. 509.

53 SirBlackstone, William, Commentaries on the Laws of England (London, 1765). 1: 123Google Scholar.

54 State Trials, 20:28 n. n.

55 Blackstone, 1:412.

56 Fiddes (n. 2 above), pp. 506–7. Shyllon, in remarkably intemperate language, ridicules Fiddes's observations. See Shyllon, pp. 70, 238.

57 Wilmot, John Eardley, Memoires of the Life of the Right Honorable Sir John Eardley Wilmot, Knt. (London, 1802), pp. 71–72Google Scholar. The letter does not appearto have been noticed by Shyllon.

58 The change in language may have made Blackstone consistent on slavery, but it did not necessarily make him clear. As Howell observed, referring to the language of the second edition, “In these passages, there appears to be somewhat of very subtle distinction, if not rather of contradiction” (State Trials 20:30 n. nGoogle Scholar).

59 Christian, Edward, ed., Blackstone's Commentaries, 13th ed. (Dublin, 1796), p. 635Google Scholar, n. 1 to p. 451, chap. 14, bk. 1.

60 Craftsman, or Says Weekly Journal, May 16, 1772.

61 See Douglas, report., Gregson v. Gilbert (KB 1783), ER, vol. 99, 3: 233.

62 Term Reports, Jones v. Schmoll (KB 1785), ER, vol. 99, l:130n.

63 Quoted in Shyllon, p. 202.

64 See generally Shyllon's description of the case, pp. 202–4. According to Durnford and East (in Term Reports, n. 62 above), the verdict was that all slaves who were killed in the mutiny or who died of wounds or bruises received in the mutiny were to be paid for, but “all who had swallowed salt water, or leaped into the sea, and hung upon the sides of the ship without being otherwise bruised, or died of chagrin, were not to be paid for.” According to the report in the Daily Universal Register, however, the jury's rules were that slaves who were killed or died of their wounds were to be paid for, those who died of bruises accompanied by other causes by swallowing salt water should be paid for, but those who died of leaping into the sea were not to be paid for.

65 Douglas, Rex v. Inhabitants (n. 38 above).

66 Ibid., p. 302.

67 Ibid., p. 301. Unfortunately, it is not possible to document this statement by Mansfield from his trial notes. Nonsuits of plaintiffs seeking lo recover wages can be located, but there is no instance in which the reason is given that the plaintiff had no right to wages because he was a slave, nor is there any other basis to conclude that the plaintiff fell into such a category.

68 Mansfield (n. 24 above), December 12, 1770, London, 472 nb 86.

69 Whenever Lord Mansfield saw an opportunity, he recommended that acase be solved by a reference. Often the foreman or a member of the jury would be selected as arbitrator, or sometimes the case went to an officer of the court or to a merchant known to Lord Mansfield.

70 Mansfield, May 23, 1782, Middlesex, 495 nb 60.

71 Lord Mansfield's trial notes for Easter Term 1779 are not among those known to have survived.

72 National Library of Scotland, MS 5027, John Riddell to Charles Stewart (quoted with permission).

73 Hutchinson, Thomas, The Diary and Letters of His Excellency Thomas Hutchinson Esq. (Boston, 1884–1886), 2: 274–77Google Scholar; quoted in Shyllon, pp. 14–15.

74 The story of Dido is told by Adams, Gene, “Dido Elizabeth Belle: A Black Girl at Kenwood.” Camden History Review 12 (1984): 10Google Scholar. According to Hutchinson, Dido was “a sort of Superintendent over the diary, poultry yard, &c.,… and she was called upon by my Lord every minute for this thing or that, and shewed the greatest attention to everything he said.” Dido was also literate. Among the Dampier MSS at Lincoln's Inn Library is a letter dated May 19, 1786, from Mansfield to puisne Judge Buller, conveying certain thoughts about a case at a time when Mansfield was too ill to write; he added at the end of the letter: “This is wrote by Dido. I hope you will be able to read it.” See Lockyer v. Offley, Buller Paper Books, bundle 428–79. Dido's hand was perfectly regular and legible, albeit plain. Mansfield's extreme fondness for Dido was reflected in his will. In addition to a legacy of £500 plus £100 per annum for life, Mansfield wrote, “I confirm to Dido Elizabeth Belle her freedom… I hope that the DSS [Duchess] Dowager of Portland will let my picture by Van LO [Van Loo] hang in her Room to put her in mind of one she knew from her infancy & always honoured with uninterrupted confidence & Friendship” (Scone Palace MSS, bundle 2346).

75 Hutchinson, p. 277.

76 Junius, letter 41 (London, 1797), 2: 42Google Scholar.