by Paula Byrne
Another case looked more promising, that of R [Rex, i.e. the Crown] v Stapylton. In 1771 Sharp was visited by a Mrs Banks, who hurried to see him after a man called Thomas Lewis was seized by two men on behalf of his former master, Robert Stapylton, and dragged on board a ship. The intention was to transport him and sell him to a Jamaican planter. Sharp and Mrs Banks obtained a writ of Habeas Corpus demanding Lewis’s return. Time was of the essence, as the ship had already set sail, and was heading for the Downs, off the coast of Kent.
Just in time, a servant of Mrs Banks delivered the writ to the ship, where Thomas Lewis was chained to the mainmast. He was set free. Sharp and Mrs Banks initiated a criminal prosecution against Stapylton and the two men who had helped to kidnap Lewis. The defendants claimed that Lewis belonged to Stapylton, who could therefore do what he wished with him. The case went to trial at the Court of King’s Bench, with Lord Mansfield presiding. Mrs Banks bore the expense.
The question that the case hinged upon was whether Lewis had ever been free. He himself insisted that he was a free man, and had never been a slave, but a servant of Stapylton’s, and had always received wages. Mrs Banks’s lawyer, John Dunning, repeatedly tried to air the question as to whether there could be such a thing as property in persons, but Mansfield kept bringing the case back to whether Lewis could be proved to be free or not.
There was a serious concern that Mansfield might disqualify Lewis as a witness because he was a slave: ‘You don’t prove his being free by himself,’ Mansfield interjected at one point. The Habeas Corpus writ extended to ‘any person or persons’, and the worry was that a black might be seen not as a ‘person’, but as the ‘property’ of his owner. If so, that would be the end of the case.
The turning point came when Mansfield suddenly and unexpectedly invoked the ancient principle of English liberty, directing the jury: ‘I shall presume him free unless they prove the contrary.’11 He then went even further, saying that unless the jury found that Stapylton was the legal owner of Lewis, ‘you will find the Defendant [Stapylton] guilty’. The jury cried out, ‘Guilty, Guilty!’, finding that Lewis could not be transported against his will, as they had no evidence to prove that he had ever been bought. Mansfield turned to the jurors and said, ‘I think you have done very right to find him not the property, for he was not the property, and you have done right.’
However, in the course of his summing-up, Lord Mansfield had been careful to say that ‘whether they [slave-owners] have this kind of property or not in England has never been solemnly determined’. In other words, the case must stay specific, and must not address the wider question of the ownership of slaves in Britain – though that of course was precisely the issue that Sharp wanted to force open. Mansfield’s summing-up showed more than a hint of exasperation:
Lord Hardwick and Lord Talbot [two other senior judges] had several discussions concerning the rights of property in Negroes … I don’t know what the consequences may be if they were to lose their property by accidentally bringing them into England … it is much better it should never be finally discussed or settled … for I would have all masters think [their slaves] free and all Negroes think they were slaves because then they would both behave better.12
As Lewis moved to leave the building, Dunning made one last request of Mansfield: that Lewis should be protected. Mansfield ordered, ‘If anybody dares to touch the boy as he is going out of the Hall especially now as the jury have found the boy not the property of the defendant, tell the officer to take them into custody and bring them before me.’13
Conventionally, four days elapsed between verdict and sentence. During that time, Mansfield appeared somewhat troubled. He confessed that ‘Ever since that trial I have had a great doubt in my mind, whether the negro could prove his own freedom by his own evidence.’ He also believed that Lewis had been led ‘into the evidence improperly’, and began to doubt whether a ‘slave may be a witness to prove himself free’.
When Stapylton did not even turn up for sentencing, the case began to look like a fiasco. Because Mansfield doubted that Lewis could prove his own freedom, he fell back on a break in the chain of ownership to prove that Lewis was not Stapylton’s slave. Furthermore, Mansfield was backing off from sentencing Stapylton for attempted kidnapping. No action was taken regarding his contempt of court in not appearing for sentencing. None of the men who kidnapped Lewis was sentenced. By leaving the case in this sense unresolved, Mansfield appeared to be hedging his bets. It seems that he had become alarmed that this case would set a precedent, and was worried about the financial implications for slave-owners if all black people in England were set free. It was the old question of the rights of property against those of liberty.
Granville Sharp was furious that Lewis had been presented as the criminal and not the victim, that Mansfield had admitted during the trial that he had indeed issued writs of Habeas Corpus to return slaves to their masters, and that the kidnappers had not been sentenced. The way Sharp saw it, while Mansfield was happy to let Lewis go free, he was unwilling to punish the kidnappers. This to him was not a useful compromise, but rank hypocrisy. In his own record he wrote: ‘He seems to think the bare mention of a Doubt in his mind a sufficient excuse, without assigning any, at the least, probable Grounds to justify an Arrest of Judgment.’ Sharp was not to be deterred. He continued: ‘I am the more solicitous to protest against this precedent because I had the mortification to hear the same judge upon the same trial quote some precedents of his own making which are equally contradictory to the Spirit and meaning of the English Laws.’14
During the trial a highly dramatic incident had taken place when Lewis’s lawyer, Dunning, unwittingly made a comment that provoked the deep-rooted racism of a witness. Dunning remarked that ‘all this would have happened if he had been your son’, leading the witness to shout out in rage: ‘My son a Negro! What! A Negro my son!’15 The idea that the witness could have a black son was clearly anathema to him, yet this distasteful scene took place in the presence of a judge who indeed was adoptive father to ‘a Negro’. Scenes such as this must have made Mansfield even more aware of the discrepancy between his personal and his public lives. One way or another, he surely knew, after R v Stapylton, that things were coming to a head. He could not evade the issue forever. And perhaps he didn’t want to.
10
The Somerset Ruling
Report of the Somerset case
Granville Sharp was ready for battle. He wanted to compel Lord Mansfield to stop dithering and make a definitive judgement on the great question. He was lucky in the timing.
The very day that Mansfield finally finished with the Lewis case, in which he refused to sentence Stapylton, a petition for Habeas Corpus arrived in court. It was on behalf of an African slave called James Somerset who had been brought to England by his master, Charles Stewart. Somerset had run away, but had been recaptured by Stewart and sold to John Knowles, the captain of the slave ship Ann and Mary, which was ready to sail for the West Indies. He could immediately have ruled that Somerset was a piece of property and not a person, and was therefore not entitled to a writ of Habeas Corpus. But he did not.1 Instead, he signed the order for Captain Knowles to produce Somerset at Chambers. Perhaps, exasperated by the unsatisfactory outcome of R v Stapylton, he was ready to resolve the issue once and for all.
A woman called Elizabeth Cade now became a key player in the case. She had been a witness to Somerset’s capture, and it was she who had secured the writ of Habeas Corpus. She knew Somerset, and had offered to be his godmother at his baptism in February of that year. Her behaviour throughout was heroic. She paid for Somerset’s bail, and he called on Granville Sharp and persuaded him to become involved. It was the case Sharp had been waiting for. This time he was determined to force Mansfield’s hand.
Initially, Mansfield once again attempted to duck the main issue by seeking to persuade Elizabeth Cade to buy Somerset’s freedom. She refused, on the grounds that to do so would ‘be an acknowledgemen
t that the plaintiff had a right to assault and imprison a poor innocent man in this Kingdom and she would never be guilty of setting so bad an example’.2 He also tried to persuade Charles Stewart, Somerset’s former owner, to set him free. It seems that both sides wanted the case to be heard, and the law to be made clear. Stewart upped the stakes by serving a ‘return to the writ’, claiming that by running away Somerset had robbed him and Captain Knowles.
Sharp was livid. He retained senior counsel for Somerset at his own personal expense, at a cost of six guineas. The principal was William Davy, an advocate so brilliant that he had gained the status of serjeant-at-law* only ten years after being called to the Bar. He was renowned for his quirky humour and quick repartee, and numerous stories about him circulated around the legal profession. Once, when Lord Mansfield interrupted him in argument, saying, ‘If this be law I must burn all my books, I see,’ Davy had instantly replied, ‘Your lordship had better read them first.’ On another occasion, when Mansfield proposed to sit on Good Friday, Davy is said to have reminded him that he would be the first judge to do so since Pontius Pilate.3 A young barrister called Francis Hargrave offered his services for free, as did four further lawyers, including one James Mansfield (no relation). It was a formidable team.
Public opinion in support of slaves was growing. The case dominated the news in the first half of 1772, with the press reporting on the speeches made in court and publishing letters and articles on the issue of slavery. Granville Sharp, believing (rightly) that his presence in court only served to rile Lord Mansfield, stayed away, but worked at a furious pace behind the scenes. He published an appendix to his Representation of the Injustice and Dangerous Tendency of Tolerating Slavery which drew on the cases he had brought previously, and implicitly criticised Lord Mansfield. In a bold move, he sent Somerset in person to deliver a copy to Mansfield.4 One wonders what the young Dido Belle would have made of it, if she had found and read it.
In the tract Sharp wrote: ‘if the present Negroes are once permitted to be retained as Slaves in England, their posterity … the mixed people or Mulattoes, produced by the unavoidable intercourse with their white neighbours, will be also subject to the like bondage with their unhappy parents’.5 Was this extraordinary passage deliberately aimed at Mansfield, written in the knowledge that he was bringing up the mulatto Dido as his adopted daughter?
On the other side of the fence, the West Indian planters rallied around Stewart, determined that this should be a test case which would confirm that ‘negro slaves’ were chattel goods, and that Somerset was a slave according to the laws of both Africa and Virginia (they liked to invoke the precedents of their fellow slave-owners on the American mainland).
Mansfield initially postponed the hearing. The arguments dragged on for months. Finally, in May, the Gazetter and New Daily Advertiser announced that ‘Last Saturday came on in the King’s Bench, before Lord Mansfield, and the rest of the Judges of the Court, the much talked cause of Somersett, the black, against Stewart, Esq, his master.’
Davy pulled no punches in making it clear what the case was really all about. He recalled the case of the Russian slave in Queen Elizabeth I’s time, when ‘it was resolved that England was too pure an air for Slaves to breathe in’. He added mischievously, ‘I hope, my Lord, the Air does not blow worse since.’
James Mansfield put on a theatrical performance, adopting the persona of Somerset: ‘It is true. I was a slave, kept as a slave in Africa. I was first put in chains on board a British ship and carried from Africa to America … I am now in a country where laws of liberty are known and regarded and can you tell me a reason why I am not to be protected by those laws, but to be carried away again to be sold?’6
But the man who stole the show was the baby-faced young barrister Francis Hargrave, who achieved overnight fame after delivering a forceful, brilliant presentation. He asked the question ‘not whether slavery is lawful in the colonies … but whether in England? Not whether it ever has existed in England, but whether it be not now abolished?’7 Beating the patriotic drum, he argued that allowing foreign laws (whether Virginian, Turkish, Polish or Russian) to govern English laws was untenable: ‘it is contrary to the genius of the English law to allow any enforcement of agreements or contracts by any other compulsion than that of our courts of justice’.8
The issue, once again, was the conflicting rulings on slavery between Holt’s 1706 judgement, which was unequivocably anti-slavery, and the 1729 ‘Joint Opinion’ of Yorke and Talbot, which was generally felt to have greater weight. Lord Mansfield threw a small hand grenade into the proceedings when he made his first public statement on the Joint Opinion: ‘the case alluded to was upon a petition in Lincoln’s Inn Hall, after dinner, therefore, might not … be taken with much accuracy’. Here he was effectively agreeing with Sharp, who had argued that the Joint Opinion was an ‘opinion’, not a considered judgement made in court. This was hugely significant.
The retaliation from the merchants was to emphasise the financial losses that would ensue if more than 14,000 British slaves were set free. Stewart’s lawyers argued that freeing slaves would have catastrophic effects, as slaves would try to escape to England. If one side was to invoke patriotic traditions of English liberty and claims about not heeding foreign laws, the other would tap into British prejudice about the nation being overrun by blacks.
At last it was left to the four judges to reach their conclusions. Usually they would come to a quick and unanimous decision, but not this time. ‘The matter will require some deliberation,’ said Lord Mansfield. Capel Lofft, the reporter of decisions, wrote that Mansfield said that ‘the prime, nay the only question properly before us, is whether the colony slave-laws be binding here, or if there be established usage or positive law in this country’. Once again, Mansfield was ruminating anxiously on the consequences of his ruling: if it went wholly in favour of Somerset, and as a result every slave in Britain was freed, he judged the loss to the proprietors as being more than £70,000.9 He mused about how the law would stand in respect to such financial settlements as would follow.
The press urged Mansfield to come to a decision, no matter ‘how disagreeable the consequences’. ‘Should judgement be given in favour of the master, it would be establishing by law a species of slavery, hitherto unknown in England, and abhorrent to the free constitution of this country,’ said the London Evening Post. On the other hand, if the case ‘be determined in favour of the Negro … it might be very detrimental to our plantations abroad and our sugar trade’.10 Other newspapers goaded Mansfield for his procrastination, describing him as a ‘timid soul’. In an open letter, an anonymous writer called him a ‘Mean-spirited; pitiable old Man! callous to every generous sentiment – dead to every feeling but the base passions of Avarice, fear or lust’.11
‘A lover of humanity’, meanwhile, published a letter to the Post making an emotional plea to Mansfield’s humanity (and vanity): ‘Are not all born equal by the laws of nature? … why then should a shade in complexion, which is the accident of climate, alter [nature] to establish a rule? Is it consistent with either the laws of Christianity, civilization, or even common humanity, to encourage … the purchase of human beings in an open market like oxen?’ The writer challenged this ‘important’ judge to ‘speak freedom to millions in despite of a few narrow political inconveniences’.12
And what of the sugar planters and slave merchants who had always believed Mansfield to be sympathetic to their concerns? Whispers abounded on the plantations and in the polite drawing rooms of London that the decision would be affected by the judge’s relationship with his black niece, Dido Belle.
When Lord Mansfield entered Westminster Hall at eleven o’clock on the morning of Monday, 22 June 1772 the chamber was crowded, and not just with the great and the good of London: there was a group of dignified black faces waiting tensely to hear the judgement. Mansfield knew exactly what was at stake. Despite his concerns about the consequences of his ruling, Mansfield was aware tha
t a clear statement of the law was essential. Neither emotion nor economics could influence him: ‘Compassion will not, on the one hand, nor inconvenience on the other, be to decide; but the law … Fiat justitia, ruat coelum’ (Let justice be done, though the heavens fall).
And then? Unfortunately, we don’t know exactly what he said. There are several versions of Mansfield’s final judgement, some of which have their own spin, such as Granville Sharp’s triumphant account.13 The Morning Chronicle reported the next morning that his speech was as ‘guarded, cautious, and concise, as it could possibly be drawn up’.14 But there is no evidence that there ever was a written or prepared speech. No text has ever come to light. There are, indeed, at least seven versions of this historic ruling, all based on memory of what Mansfield said in court.
Several accounts record that he used the word ‘odious’ to describe the state of slavery: ‘it’s so odious, that nothing can be suffered to support it, but positive law’, or ‘[Slavery] is so odious that it must be construed strictly.’15 Perhaps the most reliable version is that of court reporter Capel Lofft:
The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only positive [written] law … it is so odious that nothing can be suffered to support it but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England, and therefore the black must be discharged.16
Later critics have argued that the ruling was partial and limited, but there is no doubt that in the courtroom at that moment the victor was James Somerset. Mansfield had done the unthinkable. Somerset was a free man.
Whatever the precise wording, there is no question that this was one of the most significant rulings in English legal history. Granville Sharp and his followers were ecstatic, and certainly viewed it as a victory. But Benjamin Franklin, who was in court that day, was scathing about ‘the hypocrisy of this country, which encourages such a detestable commerce by laws for promoting the Guinea trade; while it piqued itself on its virtue, love of liberty, and the equity of its courts, in setting free a single negro’.17
