Slaves, animals and Lord Mansfield

16 February 2015 by

tumblr_my6p9rVBx11ssmm02o7_r1_500A 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. 

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy private nuisance private use Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest rights Protocol 15 Public/Private public access publication public authorities public inquiries public interest immunity quango quarantine Queen's Speech queer in the 21st century R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radicalisation rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: