by Paula Byrne
Mansfield believed that mercantile disputes ought to turn upon ‘natural justices and not upon the niceties of the law’, and that commercial contracts must have a liberal interpretation. In a world where the rules had changed, precedent, the bedrock of England’s common law system, was not always his priority. ‘The law of England,’ he said, ‘would be a strange science indeed if it was decided upon precedents only.’ Mansfield suggested to his friend the actor David Garrick that ‘a judge on the bench is now and then in your whimsical situation between Tragedy and Comedy, inclination drawing him one way and a long string of precedents the other’.6
He believed in collaboration within the judicial process, and wanted to use the knowledge and experience of experts. He introduced special juries of merchants – known as ‘Lord Mansfield’s jurymen’ – to sit in his courtroom. They were invited to dine with him in his house in Bloomsbury, and held him in high esteem. In the case of Barwell v Brooks, Mansfield said that ‘as the usages of society alter, the law must adapt itself to the various situations of mankind’.7 He was said to be a hundred years ahead of his time. Entire books were written on his decisions, in such areas as Elements of Insurance Law (1787), Marine Insurance (1787), Bills of Exchange (1789) and Merchant Shipping (1802).
Another groundbreaking ruling in 1777, known as ‘Lord Mansfield’s Rule’ and still in use today, laid down that a child born into a marriage was a legitimate product of that marriage. In his own words, ‘the law of England is clear, that the declarations of a father or mother, cannot be admitted to bastardize the issue born after marriage’. This law protected children, making husbands responsible for their wives’ offspring even if they believed the child to have a different father.8
Mansfield was respected for his ability to cut through procedural red tape. He was impatient with long-winded barristers and courtroom inefficiency. In order to discourage waffle, he would take out his newspaper and start reading. He is sometimes depicted as a rather humourless man, but nothing could be further from the truth. One of his trials involved an elderly woman accused of witchcraft. He ruled that she should be allowed to return home, and ‘if she did so by flying, no law prevented that’. On another occasion, a man had been accused of stealing a ladle. The case was thought to be particularly serious, because he was a lawyer. ‘Come, come, don’t exaggerate matters,’ said Mansfield. ‘If the fellow had been an attorney you may depend upon it, he would have stolen the bowl as well as the ladle.’9
Mansfield was famous not only for the wit of his judgements, but also for his prodigious memory. He memorised volumes of Cicero’s works, and seldom wrote things down or spoke from notes. He inspired hero-worship, even amongst men who were politically opposed to him, such as the philosopher Jeremy Bentham and the lawyer and politician John Dunning. The latter told the painter Sir Joshua Reynolds that as a student he always went to hear Murray speak: ‘This was as great a treat to me, Sir Joshua, as a sight of the finest painting by Titian or Raffael would be to you! Sometimes when we were leaving the court, we would hear the cry, “Murray is up” and forthwith we rushed back, as if to a play, or other entertainment.’10
James Boswell would attend court whenever he could, just to hear Mansfield, writing that he was ‘charmed with the precision of his ideas, the clearness of his arrangement, the eloquent choice and fluency of his language, and the distinct forcible and melodious expression of his voice’.11 In a wonderful analogy, Boswell described Mansfield’s unique ability to cut to the quick in a tricky and complicated dispute: ‘The cause was like a great piece of veal or other meat. The Court of Session could not find the joint. It was handed about through the fifteen [judges], and they tried at it but it would not do. Lord Mansfield found the joint at once and cut with greatest ease, cleanly and cleverly.’12
Another brilliantly resolved case involved a beautiful and talented teenaged singer, Ann Catley, who was apprenticed to a music teacher who then ‘sold’ her to a rakish young baronet, who kept her as his mistress, and took the profits of her public engagements. Mansfield cut through the allegations and counter-allegations, ignored the whispers of scandal, and dealt out appropriate fines.
Nothing, it seems, could faze Lord Mansfield. Not even Hayes v. Jacques, the cause célèbre of 1777. The case involved the famous Chevalier d’Eon de Beaumont, who, though highly competent in all manly skills, had been dressed as a girl during his childhood. He retained a taste for female clothes throughout his life, even collecting a scrapbook of material on the subject of hermaphroditism. When his appearance in female dress at a masquerade ball in Paris was noticed by the Prince de Conti and King Louis XV, they decided to hire him as a spy to engage in secret diplomacy while disguised as a woman. In 1756 he was sent to Russia in the guise of ‘Mademoiselle Lia de Beaumont’, and became a confidant to the Empress Elizabeth. He resumed male costume a year later, and was awarded by King Louis for services rendered, and made a captain of dragoons. He continued working for the secret service, and as a member of the French Embassy in London from 1763 was involved in many political intrigues. From this period, numerous rumours spread to the effect that the Chevalier d’Eon really was a woman. In 1775 Louis XVI granted him a large state pension in return for the recovery of some state papers, on condition that d’Eon henceforth dress in the garments of the female sex.13 This transaction prompted a fever of speculation. In the eighteenth century, people would gamble on anything. So it was that on 2 July 1777, the following report appeared in the Morning Chronicle:
Yesterday came on to be tried in the Court of King’s Bench, before Lord Mansfield and a special jury at Guildhall, an extraordinary cause, wherein Hayes was Plaintiff, and Jaques Defendant. The Plaintiff had paid the Defendant one hundred guineas, for which the Defendant had signed a policy of insurance to pay the Plaintiff seven hundred guineas whenever he could prove that the Chevalier D’Eon was a female. Mr Buller opened for the Plaintiff, and concluded he should prove he was a woman, which occasioned a good laugh. Mr Wallace opened at large, and though he said he could not go so far as his friend required, he should prove that the person called the Chevalier D’Eon is a woman.
After lengthy legal wrangling and the cross-examination of various witnesses, including a French medical man who had supposedly examined the Chevalier’s body but unfortunately could not speak any English,
Lord Mansfield, with his usual delicacy of precision, expressed his abhorrence of the whole transaction, and the more so, their bringing it into a Court of Justice, when it might have been better settled elsewhere, wishing it had been in his power, in concurrency with the Jury, to have made both parties lose; but as the law has not expressly prohibited it, and the wager was laid, the question before them was, Who had won? His Lordship observed, that the indecency of the proceeding arose more from the unnecessary questions asked, than from the case itself; that the witnesses had declared they perfectly knew the Chevalier D’Eon to be a woman; if she is not a woman, they are certainly perjured; there was, therefore, no need of enquiring how and by what methods they knew it, which was all the indecency.
He then told an anecdote about a wager for £100 entered into by two gentlemen in his own presence, regarding the dimensions of the celebrated statue the Venus de’ Medici. His ‘facetious, pointed’ manner of telling the story ‘set the whole Court, which was very full, in one universal fit of hearty laughter and good humour, beyond all that the indelicate part of the trial had done’. He then found for the Plaintiff.
The Chevalier d’Eon spent the rest of his life in England, conducting public fencing matches dressed in women’s clothing. When he died in 1810 it was discovered that, though his body had certain female attributes, it also had the all-important male one. So, strictly speaking, Mansfield had got it wrong, but in very delicate circumstances he had managed to deliver a skilled judgement that enhanced respect for both himself and the legal process. We can imagine a very jolly evening back home in Bloomsbury when he regaled the household with the story of his day. Deciding
on a wager involving a transvestite must have been light relief from the complex insurance cases to which he devoted so much of his time on the King’s Bench – let alone the great question of the legal status of slaves in England.
9
Enter Granville Sharp
Granville Sharp, drawn by George Dance
On the face of it they were as different as two men could be. Lord Mansfield was by now one of the most famous men in the land. Wealthy, titled and powerful, equally known for his verbal brilliance and his fair-mindedness. Perceived as the founding father of modern commercial law, so vital to the new world of international trade and its necessary underpinning, insurance. But a man who would never let his personal associations get in the way of his professional life, as was seen from his prosecution of Jacobite leaders who were family friends.
Granville Sharp, by contrast, was a humble civil servant, a clerk in the Ordnance Office in the Tower of London. He came from a clergy background. He was the youngest of fourteen children, had little formal education and was largely self-taught, studying Greek and Hebrew out of a passion for the Bible and the classics. He was a very accomplished musician, playing a variety of instruments and possessing a strong bass voice. The whole Sharp family was musical, and would become famous for their concerts on a barge on the Thames. Granville – or ‘Greeny’ to his family – often signed his name with the musical notation G#.
Sharp was to become one of Britain’s leading abolitionists. He was also to become a thorn in the side of Lord Mansfield. But they will forever be united in history as the men who freed British slaves.
On the fateful day when Jonathan Strong was beaten up by his master, Greeny had been visiting his brother William’s surgery in Mincing Lane. The location was at the heart of London’s financial district, and the home to many slave traders. Coming out of his brother’s surgery, Sharp was astounded to find the young black man in a pitiful state. The Sharp brothers tended to him, found him a bed in hospital and secured him a job after his recovery. There the story might have ended. But two years later, in 1767, Jonathan Strong, recovered from his ordeal, was spotted by his former owner, David Lisle. He seized him, had him thrown into prison and set about selling him to a sugar planter. Strong appealed to numerous people for help, and in desperation sent a message to Granville Sharp.
At the heart of Strong’s appeal was his firm conviction that he was no longer a slave. There was a strong belief among the black communities in England that freedom was automatically conferred once you set foot on English soil. Others also believed that Christian baptism could manumit them. Many slaves escaped, and it was the work of slave-catchers to roam the streets in pursuit of them. Rewards were posted, and if the runaways were caught they would be resold and sent back to the sugar islands, or to Charleston in South Carolina, where the new cotton and tobacco plantations of the American South were creating huge demand for slave labour.
Jonathan Strong’s friends, to whom he appealed for help, were frightened off by Lisle, who was a lawyer. But Granville Sharp was made of sterner stuff, and would not be bullied or deterred. He took immediate action, and arranged a hearing that took place in September. Strong was released. Lisle started an action against Sharp and another of his brothers, claiming £200 for depriving him of his property.
When Sharp consulted his lawyer, he was told that the case would probably go against him because of the Yorke–Talbot ruling of 1729, which had ‘opined’ that a slave’s status did not change when he came to England, that a slave could be compelled to return to the colonies from England, and that baptism would not manumit a slave.1 Many slave-owners invoked Yorke–Talbot, though, as Sharp insisted, it was an ‘opinion’ and not a ‘ruling’: only a formal ruling could stand as a legal precedent.
Sharp was also told that Lord Mansfield had upheld this opinion on more than one occasion. But he refused to accept that ‘the law of England was really so injurious to natural rights as so many great lawyers for political reasons had been pleased to assert’.2 With his love of learning and his strong sense of social injustice, Sharp immersed himself in English law to determine whether slavery was illegal in England. His legal advisers confirmed that as the law stood, it favoured a master’s rights to his slaves as property, that a slave remained the chattel of his master even on English soil, and could be removed at will.
Once again, Granville Sharp was not to be deterred. He set about finding any possible ambiguity or chink in the armour of the law in order to prove that slavery was illegal on English soil. He was determined to force a definitive legal ruling on whether slaves could be compelled to leave the country. He discovered that as far back as 1569 there had been a legal judgement which stated that ‘England was too pure an air for slaves to breathe in.’3 This was later to become the motto of the abolition movement. He also cited the 1706 opinion of Lord Chief Justice Holt that ‘as soon as a Negro comes into England, he becomes free’.4
There was a more recent case, in 1763, which, oddly, Sharp overlooked. An ex-slave, Harvey, had appeared as the defendant in Shanley v Harvey. He had been brought to England as a child, and his owner, Shanley, had given him to his niece, who had him baptised and changed his name. On her death she left Harvey a sum of money, which Shanley tried to recover. Lord Henley, the Lord Chancellor, dismissed the action, with costs against Shanley. In his judgement he held that as soon as a person set foot on English soil, he or she became free, and that a ‘negro’ might maintain an action against his or her master for ill usage, together with an application for Habeas Corpus if detained. A writ of Habeas Corpus (‘may you have the body’) requires a person under arrest to be brought before a judge or into court.
Deep in his legal studies, Sharp was encouraged by William Blackstone’s definitive Commentaries on the Laws of England. Blackstone, the Vinerian Professor of English Law at Oxford, stated that the ‘spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and with regard to all natural rights becomes eo instanti [“at that moment”] a freeman’.5 After the first, highly successful, edition of his Commentaries was published in 1765, Blackstone refined his views on slavery. In the third edition (1768–69), the end of the final sentence was revised (after ‘laws’) to: ‘and so far becomes a freeman; though the master’s right to his service may probably still continue’.6
Having read only the first edition, Granville Sharp wrote to Blackstone, expecting his support. But Blackstone backtracked in his reply, carefully insisting that he had not challenged the legitimacy of a master’s right of ownership. He warned Sharp that he faced ‘uphill work in the King’s Bench’.7
Sharp knew very well that Blackstone was a friend of Lord Mansfield. They had mutual friends, James Boswell and David Garrick among others. Sharp may also have known that Mansfield had adopted a little black girl, the daughter of a slave and Mansfield’s nephew, whom he was bringing up as his own child. Others in London who were connected with the question of slavery certainly knew this. On the other hand, he also knew that Mansfield was a friend to British merchants, and would be wary of alienating the sugar interest.
To his disappointment, Sharp soon realised that Lord Mansfield was reluctant to make a clear legal decision regarding the issue of slavery in Great Britain.8 The two men now became regularly involved in legal disputes, with Sharp accusing Mansfield of putting commercial interests above those of black freedom.9 But he may have held out hope that an emotive appeal regarding the inhumane treatment of black people would catch at Mansfield’s Achilles’ heel – as we will see, gossip was circulating around London that the Lord Chief Justice was in thrall to the black girl who lived with his family.
In 1769 Sharp published A Representation of the Injustice and Dangerous Tendency of Tolerating Slavery or even Admitting the Least Claim of Private Property in the Persons of Men of England, the first tract in England attacking slavery. In it he argued
that the forcible removal of slaves was a contravention of the 1679 Habeas Corpus Act, and that the Yorke–Talbot ‘opinion’ was trumped by that of Lord Chief Justice Holt. The most important principle, however, was that under the common law of England, there could be no property in persons, and that all persons (irrespective of colour) were subject to the protection of the King’s laws. As for slave-owners, ‘they usurp an absolute authority over their fellow men, as if they thought them mere things, horses, dogs etc’.10 For Sharp, ‘the plea of private property … comparing a man to a beast is … unnatural and unjust’. This was about the ‘humanity’ of the negro. Sharp was stepping it up.
While the Jonathan Strong case was pending, Sharp became involved in another case, that of John Hylas, whose wife had been captured and sold into West Indian slavery. The verdict was in favour of Hylas, and Mary’s owner was ordered to return her. Sharp hoped that this case might settle the issue of the legality of slavery in England, but it was not to be. The judge presiding, Lord Wilmot, did not address the matter.
