by Paula Byrne
Little Ephraim wrote to Lord Mansfield, who ‘sent to fetch us to London where we was examined then Discharged’. The princes argued that they had never been slaves: ‘we were free people … we had not done anything to forfeit our liberty’. Mansfield was troubled because, unlike Somerset, and indeed Thomas Lewis and Jonathan Strong, the Robin Johns had never lived in England: ‘the whole transaction was beyond sea’, and thus more legally complex. After a delay of some days the parties settled, a compromise being reached in which the alleged Virginia owner was reimbursed for the princes ‘as purchase money or value of the two said Africans’, and they were allowed to go free. In a very surprising turn of events, the man who originally captured the Robin Johns was forced to pay £120 to the Virginia owner. The details of the arrangement were formally accepted by the court, Lord Mansfield presiding.
That he had a special interest in the case is suggested by the diary of Thomas Hutchinson, who said that it had given ‘particular pleasure’ to Mansfield, who was ‘much pleased at their relief’.18 This revelation is striking, as this is the only surviving evidence of Lord Mansfield expressing his private thoughts on the slave trade. He is not the judge here; he is not at Westminster, where all eyes are upon him. Here we see Lord Mansfield’s evident pride in his ‘releasing two Blacks from slavery’. And that pride is expressed on an evening when he drinks coffee with Dido and walks with her in the grounds of Kenwood.
Striking, too, is the fact that the Robin Johns appealed to Mansfield in the first place. This suggests the wide-reaching repercussions of the Somerset case, despite the fact that Mansfield always emphasised that it did not abolish slavery as such in England. Rather, it prevented masters from forcibly removing slaves against their wishes. Hutchinson wanted to discuss this sensitive issue, which had had such repercussions in England and America: ‘I wished to have entered into a free colloquium and to have discovered … the nice distinction [Mansfield] must have had in his mind, but I imagined such an altercation would be rather disliked and forbore.’19
One of Mansfield’s enduring concerns about the possible effects of the Somerset case was the economic implications both for the owners who had lost their ‘property’ and would seek compensation, and for the freed slaves who would be rendered homeless and destitute, with the result that they would seek parish relief. In the courtroom he had asked the question, ‘How would the law stand with the respect to their settlement; their wages?’
Charlotte Howe was a slave brought to England by her owner in 1781. Following his death, she was baptised and considered herself to be free. She applied to two parishes for poor relief, but neither would grant it, as the poor law only applied to hired servants. This case exposed Mansfield’s very real concern about who would take responsibility for destitute former slaves. He ruled that the ‘case was very plain … the statute says there must be a hiring, and here there was no hiring at all. She does not therefore come within the description.’
Furthermore, in a pamphlet published in 1786, it was reported that Mansfield used the Charlotte Howe Case to clarify his Somerset ruling:
Lord Mansfield very particularly took occasion to declare, that the public were generally mistaken in the determination of the court of the King’s Bench, in the case of Somersett the negro, which had often been quoted, for nothing more was then determined, than that there was no right in the master forcibly to take the slave and carry him abroad … nor was it held … that on setting foot in this country he instantly became emancipated.20
The dinner at Kenwood with Thomas Hutchinson is of supreme importance, as it shows how Mansfield was torn between the ethical questions of black emancipation and his concerns about its financial implications. Once again, he was agonising over the old question of the rights of liberty versus the rights of property.
But could a human being ever really be reduced to the status of nothing more than an item of property?
14
The Zong Massacre
The Zong: slaves being thrown overboard
This atrocious and unparalleled act of wickedness
Thomas Clarkson
On 19 March 1783, Granville Sharp noted in his journal: ‘Gustavus Vasa a Negro called on me with an account of 130 Negroes being thrown Alive into the sea from on Board an English Slave Ship.’1
William Gregson was undoubtedly one of the most successful slave merchants in Liverpool. He owned a large number of slave ships. During the course of 152 slave voyages his vessels shipped 49,000 Africans to plantations in the Americas.2 In 1769 he named his latest slave ship after himself, marking his incredible rise. The Gregson was the last of his ships to sail before the American War of Independence put a stop to trading for three years. In 1780 he re-entered the trade with a new ship, the William. Her captain was John Hanley, a trusted and experienced master. In 1781 Hanley saw an opportunity that he could not pass over.3
In February of that year a ship, the Zorg, had been captured from the Dutch by the British navy. She was a relatively small slaver of 110 tons. Typically a ship of that size would carry about 190 Africans, but the Zorg came loaded with 244 slaves on board. On behalf of the Gregson syndicate, Hanley bought the ship and renamed her the Zong (or perhaps the name was misread, and then taken for granted). Gregson immediately took out insurance ‘upon the whole of the ship and on Goods … valuing slaves at £30 Sterling per head’.4
Captain Hanley, who was already in charge of the William, appointed his surgeon Luke Collingwood as captain of the Zong. This step would have severe repercussions. Hanley instructed Collingwood to buy more slaves, and on 18 August he left Africa with 442 Africans on board, bound for Jamaica. The ship was dangerously overcrowded, and Collingwood was an inexperienced captain.
What happened next has been the subject of much debate, conspiracy theories, inconsistencies of evidence and confusion in the telling. The Zong overran her intended destination. Water supplies had dwindled, and an epidemic had broken out on the overcrowded ship. On 29 November 1781, Collingwood made the decision to ‘jettison’ a portion (roughly one-third) of his human cargo into the waters of the Caribbean. He calculated that it would make more sense economically to kill the slaves and claim the insurance money. When Gregson and his syndicate made their claim of £30 for each of the slaves who had been killed, they stated that the ship’s water supply had run out, and the captain had taken the ‘necessary’ step of sacrificing a few for the many.5
No reconstruction of these horrific events can ever be fully accurate, for two reasons. First, the captain, who had fallen ill, died a couple of days after the ship reached Jamaica. Second, the ship’s logbook went missing, and has never been found. The insurers later accused Gregson of destroying it. He claimed that it was with Collingwood when he died in Jamaica, and was mislaid. But it would have been highly irregular for the logbook to have left the ship.Without it, the events were reconstructed by the testimony of a passenger on the ship named Robert Stubbs. Later, first mate James Kelsall wrote an affidavit putting across his own version of what happened. Neither source is necessarily to be trusted.
We will never know the full truth of what happened, but we do know that the circumstances of the Zong were highly unusual. As Luke Collingwood was a slave surgeon who had been promoted to the role of captain, doubts were later voiced about his capability.6 While it was not unusual for a surgeon to be raised to captain, Collingwood was acting as both surgeon and captain of a very overcrowded ship. Usually the ship’s surgeon would keep an independent record or log, but because he was carrying out both roles, another vital piece of documentation was not kept.
Most slave ships carried twice the amount of food and drink they would need for the dreaded middle passage. As first mate, James Kelsall was responsible for loading and storing food. He took on fifteen or sixteen butts of water (162 gallons each), but failed to check the supplies at the point of departure or during the passage.
At some point in the voyage Collingwood fell sick, and was unable to command the ship.
He appears to have suspended Kelsall, and given command to the passenger Robert Stubbs. This is another strange twist in the story. Stubbs, the only witness asked to give evidence at the Zong trial, was an ex-slaver captain (of the Black Joke), and former Governor of Anomabu, a small slave-trading post on the Gold Coast of Africa. He had a reputation as a drunk and a scoundrel. It’s unclear exactly what part he played: he later claimed that he was an innocent bystander.
On 21 November the water supplies were checked, and it was discovered that many of the butts were not full. The crossing had been slower than expected, and it appeared that a large amount of water had leaked from the butts in the lower tier. At this stage there didn’t seem to be anything to worry about, as the ship had enough water for thirteen days, and Jamaica, their destination, was only eight days away. For a Liverpool slave ship such as the Zong, the usual allocation of water was four pints per person per day. Unfortunately, no one suggested the wise measure of limiting the rations for slaves and crew.
Then a serious navigational error was made. The Zong’s crew sighted Jamaica, but believed it to be the French-held St Domingo, so they sailed away from shore. Because the captain was sick and the first mate suspended, it is unclear who made the mistake. By the time it was recognised, the ship was three hundred miles from Jamaica. Kelsall was reinstated as first mate, but the ship only had enough water for four days, and it would now take between ten and fourteen to return to Jamaica.
On 29 November the suggestion was made to destroy part of the slave cargo in order to protect the rest. That evening, at 8 p.m., fifty-four women and children were pushed through cabin windows into the sea. Two days later, forty-two men were thrown overboard. Ten jumped voluntarily. On the third day a final group of thirty-six men was dispatched. One man clambered back aboard the ship.
James Kelsall later stated that the slaves were fit and healthy, but this would be disputed by many abolitionists.
Between the first and last massacre, on 1 December, heavy rain fell, replenishing the water supplies. At one point, a slave appealed for their lives to be spared, but he was ignored.
One of the most horrifying massacres in the terrible history of the slave ships had occurred. But nobody would have heard of it had the Gregson syndicate not made the tactical mistake of claiming insurance for the ‘cargo’ that had been jettisoned. The insurers refused to pay up, and the case went to court. There was never a case for murder. It was an insurance claim. And insurance was Lord Mansfield’s speciality.
15
Gregson v Gilbert
Mansfield as Lord Chief Justice, engraving after a portrait by Sir Joshua Reynolds
The life of one Man is like the life of another Man whatever the Complexion is, whatever the colour
Mr Pigot, counsel for the insurers
When the news of the Zong massacre reached England, the Gregson syndicate immediately set about claiming compensation from their underwriters for the loss of the slaves. Legal proceedings began when the insurers refused to pay up. The dispute was initially tried before a jury at the Guildhall in London on 6 March 1783. Overseeing the trial was Dido’s adoptive father, Lord Chief Justice the Earl of Mansfield, the world expert on maritime insurance.
The question centred upon whether Collingwood had or had not jettisoned his (human) cargo as a matter of necessity, under ‘perils of the sea’. Eighteenth-century slave ships could be insured against several forms of ‘perils of the sea’, including shipwreck, piracy, arrest and shipboard rebellion, but the death of slaves owing to what was deemed ‘natural death’ (that is, through sickness, or want of water or food) was uninsurable.
If the slaves had died onshore, the Gregson syndicate would have had no redress from their insurers. But if some slaves were jettisoned in order to save the rest of the ‘cargo’ or the ship herself, then a claim could be made under the notion of ‘general average’. This principle held that a captain who jettisoned part of his cargo in order to save the rest could claim for the loss from his insurers.
At this trial the jury decided in favour of Gregson, that the insurers (Gilbert) were liable to pay compensation for the 132 Africans ‘jettisoned’ from the Zong. The freed slave and well-known London figure Olaudah Equiano went to see Granville Sharp on 19 March, and the following day Sharp sought legal advice on the possibility of prosecuting the ship’s crew for murder.
In the meantime, Gilbert fought back and asked for a retrial, and on 21–22 May there was a two-day hearing at the Court of King’s Bench at Westminster Hall to review the evidence.1 Almost all the information we have about the Zong case derives from this hearing, as Lord Mansfield’s notes for the original trial in March are missing.2 Once again, Granville Sharp was to prove a thorn in the side of Mansfield. He appeared at the May hearing alongside his secretary, who transcribed the whole proceedings.
As Lord Mansfield stated in his opening remarks, the Zong was ‘a very singular case’. The first thing he did was to emphasise that this was an insurance claim, not a murder trial, but it was clear that much was at stake. In his summing-up of the March trial, he made a comment that has (unfairly) been used to smear his reputation: ‘The matter left to the jury, was whether it was from necessity: for they had no doubt (though it shocks one very much) that the Case of Slaves was the same as if Horses had been thrown over board. It is a very shocking case.’3 Some historians are convinced that this statement shows Mansfield’s personal opinion,4 though it seems clear that he is in fact stating the views of the jury.
Robert Stubbs appeared as the only witness, claiming that there was ‘an absolute Necessity for throwing over the Negroes’, because the crew feared that all the slaves would die if they did not throw some into the sea.5 The insurers argued that Collingwood had made ‘a Blunder and Mistake’ in sailing beyond Jamaica, and that the slaves had been deliberately killed so their owners could claim compensation. They argued that this was a case of fraud and human error, and that therefore they should not be liable.
Strikingly, however, Gilbert’s lawyers moved the argument beyond a mere insurance claim, emotively describing the affair as a ‘Crime of the Deepest and Blackest Dye’, and saying that the crew had lost ‘the feelings of Men’.6 The historian James Walvin has argued persuasively that the somewhat alarming presence of Granville Sharp and his secretary in court had a significant bearing on the tone and language of this hearing. Murder had been on no one’s mind at the Guildhall sessions two months before, but the word was used nine times at the King’s Bench.7 One of Gilbert’s lawyers, the fierce Mr Pigot, who comes out of the case particularly well, made an assertion that made it very clear that this was much more than an insurance claim: ‘The life of one Man is like the life of another Man whatever the Complexion is, whatever the colour.’ He demanded that the grotesque acts that had taken place on board the Zong should lead to a retrial.
The turning point for Lord Mansfield appears to have been a shocking detail that had hitherto been undisclosed. He learned that the last group of thirty-six slaves ‘were thrown overboard a Day after the Rain’. Mansfield’s comments are most revealing: ‘a fact which I am not really apprized of … I am not aware of that fact … I did not attend to it … it is new to me. I did not know any Thing of it.’ The whole case rested on the assumption that the slaves were killed out of necessity, yet it was now clear that the water supplies had been replenished. In an affidavit made by Kelsall it was reported that on 1 December it rained heavily for more than a day, allowing six butts of water (sufficient for eleven days) to be collected.8 It was at this juncture that Lord Mansfield recommended a retrial: ‘It is a very uncommon Case and I think very well deserves a re-examination.’
The three judges concluded that the case for necessity in jettisoning the slaves was not proven. Despite this turnaround, a second trial never took place. It seems that Gregson dropped his claim. One suspects that the syndicate knew they would lose, and that the negative publicity would be catastrophically damaging to the entire cause of the trade
. Gregson and his colleagues did not win their compensation, which was a victory of some sort for Sharp and the early abolitionists, but neither were they prosecuted for murder.
Lord Mansfield comes out of this case somewhat ambiguously. On the one hand, he ordered the retrial of Gregson v Gilbert once he had learned that the heavens had opened and rain fell. But on the other, he did not refer the case to the Attorney General for a possible murder trial.
In 1785, two years after the Zong trial, Mansfield presided over another insurance case, where nineteen slaves had been killed in a munity and a further thirty-three had committed suicide. Mansfield said, ‘This was not like the case of throwing Negroes overboard to save the ship. Here there was a cargo of desperate Negroes refusing to go into slavery and dying of despair.’ The insurers, he ruled, should only be required to pay damages for the nineteen. To us, it seems shocking that a monetary value could in any circumstances be placed upon human beings, as if they were chattels. But for Mansfield, the law was the law. Clarity and certainty were, for him, more important than whether a particular law was good or bad: ‘The great object in every branch of the law … is certainty, and that the grounds of decision should be precisely known.’9
