Slaves, animals and Lord Mansfield

16 February 2015 by David Hart KC

A fascinating riff has been playing around the London Review of Books since Stephen Sedley (erstwhile Sedley LJ) reviewed a biography of the 18th century judge Lord Mansfield – here – part 3, but the excellent letters of response are open access.

Mansfield is perhaps best known by commercial lawyers for injecting into the hitherto archaic English commercial law some element of rationality. But he also ended up trying cases involving the ownership of slaves, and had therefore to decide how ownership fitted in with things like habeas corpus. 

But first a bit of historical background about our man, and some indications of the differing times in which he lived – much of it thanks to Sedley’s review.

Born in 1705. Supporter of the Catholic Young Pretender in early life (see here if puzzlement), successful barrister, entered Parliament, skipped through being Solicitor- and then Attorney-General (political posts) and not long after ended up as Lord Chief Justice. But, untroubled by the (then formative) idea of separation of powers, he still sat in the Cabinet for some time after becoming LCJ.

Nor did potential conflicts of interests trouble him. He ended up committing to a debtor’s prison Christopher Smart whom Mansfield had previously befriended and helped. Smart was the poet and writer of “For I shall consider my cat Jeoffrey..”, a sort of 18th century YouTube cat worship, see here if you don’t know the poem, or indeed the Britten setting of it. And as for the Duchess of Kingston, well-connected with Mansfield, when she was indicted for bigamy, Lord Mansfield gave her bail, told her that she would not go to jail, and then sat as a member of the House of Lords to try her. Whilst being found guilty, she pleaded her position as a peeress, was not sentenced, and lived the rest of her life in France and St Petersburg – so his advice was right. Sedley’s third example of a different approach to conflicts is Mansfield trying Lord George Gordon, for provoking riots in which Mansfield’s town house was burnt to the ground. Fortunately, his country residence – the lovely Kenwood – was spared.

Some may recall the “stirring” dictum in the 1772 slave case, Somersett, in which Mansfield is quoted as saying

The air of England is too pure for a slave to breathe.

A whole bunch of problems with its attribution to Lord Mansfield. The phrase appears to have been coined in the 16th century, in the Star Chamber, that fount of all liberty. It was recycled by Somersett’s leading barrister in submissions to Lord Mansfield, and then got incorporated by later hagiographers into his judgment. But he never wrote it or said it.

Somersett was a recaptured slave who was being held aboard a ship moored in the Thames. His godparents brought a writ of habeas corpus and the slave owner said that the writ did not run – Somersett was his property, not a man. Lord Mansfield decided that “the black must be discharged.” In so saying, he decided that this was because the state of slavery was

so odious that nothing can be suffered to support it but positive law

So far so good. There is a strange back-story to all this. Lord Mansfield had a black grand-niece, Dido Elizabeth Belle (as in the film Belle and the Zoffany pic above), daughter of his sea-captain nephew, who was taken in by the Mansfields into Kenwood society, and an unidentified slave mother.

Sedley is less complimentary about the reasoning of Mansfield’s second leading case concerning the slave ship, Zong. Its captain threw 150 slaves overboard when the ship’s water got low. Another 60 slaves died of thirst, and another 40 threw themselves overboard. Owners brought a claim against cargo insurers for loss of cargo, to wit 250 slaves. The jury found insurers liable. Lord Mansfield ducked it – he decided that the evidence was not there that it has been necessary to throw the slaves overboard. As Sedley remarks, the case could in all logic have been dismissed on the simple ground that the contract was immoral or contrary to public policy – the logical conclusion of what he said in Somersett.

And here come the animals. Lord Mansfield added in Zong

Though it shocks me very much to say so, the case of the slaves was the same as if horses had been thrown overboard.

It does shock us these days to say or think either thing. Or it ought to. Cue a wonderful book by Rose George, Deep Sea and Foreign Going – details here, and her grim Chapter 4 , entitled Calves Can Swim. The statistics are as grim as the losses of slaves between Africa and America – thousands of animals die between Australia and Europe. And the story about the loss of the Danny FII, in which some of its crew and all bar the odd one of the 18,000 livestock aboard drowned a short distance off the coast of Lebanon. One member of the crew made it ashore using a heifer as liferaft.

Standing back, it took some considerable time from the point when slavery started to be looked at critically in the late 18th century to secure its abolition, and I suppose the only question is how long it might take to achieve the less demanding proposal, that we recognise the interests of animals, to some degree, other than as pure property. Hence the use of the Somersett case in recent animal rights case, for which see Rosalind English’s post here. 

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