by Simon Schama
So, on the 21st of February 1771, the case against Stapylton and the two watermen came before Lord Chief Justice Mansfield and, unusually for a judge who customarily chose to do without one, a jury. Perhaps it was the presence of a jury that had made the old captain suddenly more pessimistic about the outcome, since the day before the trial opened he tried to pre-empt it by leading a press-gang to seize Thomas Lewis as he was sitting in a nearby coffee-house, waiting to be summoned. This was not a well thought out scheme. Lewis’s lawyer was close by, interrupted the seizure and threatened drastic consequences for all those involved.
Committed as he certainly was to the fate of Thomas Lewis, Sharp thought of the trial as the long-awaited judicial test of his “little tract.” Its cardinal principle was that, under the Common Law of England, there could be no property in persons; and that all men, women and children, of whatever colour, were subject to the equal protection of the king’s laws. The lawyer appearing for the prosecution, John Dunning, was exceptionally faithful to this brief, holding up Sharp’s Representation in court while keeping his place in the book with a finger and quoting, over and over again, its central arguments.
Mansfield, however, refused to be drawn. The issue, he instructed the jury, was not, as Dunning had insisted, whether or not there could ever be property in persons in England, but merely whether Lewis, in particular could be proved, at the time of his abduction, to have been Stapylton’s possession. The fact that the prosecution counsel chose to recite details of Lewis’s own biography—his birth as a free man on the Gold Coast; his residence with his uncle after the death of his father; his signing up around 1762 as a servant with Stapylton, then a sea captain himself, and his travels with him in America—all reinforced the impression that the case was ad hominem, not philosophical, and that, whatever the outcome, it would not determine the more general issue of whether or not British freedom was ever compatible with the presence of slavery. “Perhaps,” opined Mansfield, who had wanted the whole grievance to be settled by Mrs Banks buying Lewis his liberty and was now adopting the sententious manner of a schoolmaster adjudicating a fight between unruly boys, “it is much better it should never be finally discussed or settled…for I would have all masters think them [their slaves] free and all Negroes think they were slaves because then they would both behave better.”
The jury found that Lewis could not be transported against his will, but they did so, at least according to the Lord Chief Justice, because no adequate bill of sale had been produced, not because they accepted Sharp’s premise that slaves imported into England became, at once, free under the Common Law. But Stapylton and the watermen were found guilty and this, Mansfield assumed, should have been enough to satisfy Mrs Banks, Granville Sharp and Lewis himself. So he held back from prescribing any kind of penalty for the convicted men. But Sharp was convinced that the jury had meant to vindicate his treatise rather than simply find on a technicality, so he and Mrs Banks asked the court for a final judgment; instead, they received a rap on the knuckles for their temerity. The Lord Chief Justice confessed himself much surprised at being so pressed for a judgment; and for good measure let it be known that, on reflection, he rather regretted the jury’s verdict, seeing that he now had second thoughts about some of the evidence presented by the prosecution. In so many words he told Mrs Banks that she had her free black man and should now desist before she wore out the goodwill of the magistracy.
For his part, Granville Sharp was as exasperated as Mansfield by the outcome of the Lewis case and in no mood to let the Lord Chief Justice off the hook. In his private notebook he commented, with much indignant underlining, that “the refusal of a proper judgment in this case is so far from being a proper precedent that it ought to be esteemed an open contempt of the legislature and a notorious breach and perversion of the laws.” Setting Mansfield squarely in his sights for the next round of the dispute, Sharp wrote, “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.”8 Did Mansfield still think Sharp a presumptuous nonentity who would be amusing were it not for his irritating parade of self-righteousness? Well, the Lord Chief Justice was not so impregnable in his power and authority as to be invulnerable to instruction when so truly in the wrong!
Thus it became personal, a judicial duel between the two men; absurdly unequal, Lord Mansfield must have thought, which is what made the outcome so surprising. At stake for Sharp was not just the fate of slaves, but that of English liberty. The word “liberty” was the battleground in the 1770s on both sides of the Atlantic, bandied around by Bostonians and Virginians asserting that their freeborn English liberty had been put in chains by the ministerial tyranny reigning in London; by London radicals such as John Wilkes, prevented from taking his seat in Parliament by a conspiracy of oligarchs; and by Yorkshire radicals such as Christopher Wyvill berating “Old Corruption” and demanding reform. But for Sharp the matter was still bigger. He was acutely conscious that, as the descendant of an archbishop and before that of a dynasty of Yorkshire Puritans, he had inherited a religious obligation to defend English freedom as a legacy intended for all humanity. Scripture and history came together in this momentous self-appointment. Like one of the Old Testament prophets whose utterances he had worried over during the drowsy afternoons at the Ordnance Office, Sharp made himself the oracle of a new British Empire—one upright in word and deed, cleansed of the taint of the “Accursed Thing.” Only thus reborn could such an empire escape the retribution that God had visited on all previous empires, from the Medes and the Persians to the Spanish and the Portuguese.
On the look-out for a case that would bring Lord Mansfield to the test, Sharp had very little time to wait before the perfect opportunity presented itself. On the 26th of November 1771, less than six months after Mansfield’s irritable parade of “second thoughts” in the Lewis case, James Somerset, erstwhile slave of Charles Stewart, was kidnapped near Covent Garden, bundled off to the Ann and Mary bound for Jamaica and clapped in irons below deck.9 He had been at liberty for less than two months and, unlike the situation with Thomas Lewis, there was no dispute over prior ownership and thus no pretext for the Lord Chief Justice to claim that such a case turned on ad hominem matters and not on the general principle. James Somerset had been bought by Stewart, then a customs officer, on arrival in Virginia as long ago as 1749, and had been in his service ever since. When Stewart had been moved north to Massachusetts as a paymaster Somerset had gone with him, and had been his body servant for twenty years when the two men arrived in London in 1769, just as Granville Sharp’s Representation was being published. Ironically, Stewart went to live in Cheapside, a stone’s throw from the Sharp brothers and, indeed, from many of the haunts of the London blacks among whom the news of the Strong and Lewis cases had freely circulated. Knowing that his master’s stay in England was going to be only temporary, and that he might be sold, Somerset had evidently decided that escape was his only chance to avoid being shipped back to the Caribbean. If he were ever to be free, it was now or never. One day in September 1771 he disappeared.
Slavecatching in London was so common that kidnappers seldom bothered to conceal themselves from witnesses. Three people observed the taking of James Somerset, and one of them, Elizabeth Cade, seems to have taken the initiative (much as Mrs Banks had done with Lewis) in securing a writ of Habeas Corpus, which ended in the “body” of Somerset being produced for the magistrate on the 9th of December. But the person on whom it had been served had the right of “return to the writ,” and Stewart, along with Captain Knowles of the Ann and Mary, took full advantage of his right to complain about the larceny of their property. By running away, James Somerset had robbed them. Mansfield’s demeanour must have encouraged Knowles, who had to defend himself against the charge of illegal detention, and Stewart. For it was Somerset, not the captain and the slav
eowner, who was strictly bound over, on pain of draconian penalties, should he abscond. Those who had organized the kidnapping, on the other hand, were not required to appear in person to answer the case and could indeed free themselves from prosecution at any time simply by relinquishing the claim to Somerset.
On hearing that Somerset, rather than Stewart and Knowles, had been made to feel the guilty party, Sharp became furious at the conduct of his antagonist, the smooth and smiling Mansfield. When Somerset was brought to see Sharp in his lodgings in Old Jewry on the 13th of January 1772, Sharp plunged into the affair, certain that this time, whatever Mansfield’s sophistries, the matter of slavery’s legality in England would finally come to the test in the court of the King’s Bench. His first move was to lay out the six guineas needed to retain two counsel for James Somerset. That something tremendous was impending struck not only Granville Sharp and his family, but a much wider circle of the incensed, who had either followed the Lewis case in the press or heard about it on the winding grapevine that extended from Mrs Banks at Chelsea to her friends and fellow slavery-haters Dr Johnson, Reynolds and Garrick. For the first time in British history the individually indignant were coming together in a concerted campaign against the slave trade.
One of those freshly recruited to the negro cause was a young lawyer, Francis Hargrave, scarcely out of his student years at Lincoln’s Inn, who on the 25th of January wrote to Sharp volunteering his services. He had, he said, already sent Mr Sharp some of his opinions on the matter of negro slavery during the Lewis affair and had not heard back from him, but since those opinions were less well considered than he should have wished, that was perhaps just as well. Should Mr Sharp still have them in his possession, he begged, he would be exceedingly obliged if he would now suppress them. Since that premature expression of his views he had undertaken careful research (for Hargrave’s father was an antiquarian), and the abundance of evidence had made left him in no doubt whatsoever that slavery was indeed incompatible with the Common Law of England. He would be happy to air those opinions either informally or as counsel, although he was painfully aware that “never having argued anything publicly I distrust my abilities to acquit myself as such a cause requires.” The next day Sharp replied warmly, accepting Hargrave’s offer to assist Serjeant Davy, who had already been retained as principal counsel, and letting him know that in so doing he would be performing “a great act of private charity as well as public good.” What cause could possibly be more important, since “I apprehend that the honour or degradation of human nature depends upon the present question.”
Although Sharp had sent him a retainer, Hargrave declined any fee for his services—as did Somerset’s other four lawyers. Appearing beneath Richard II’s hammerbeam ceiling at Westminster Hall before Lord Mansfield and his three associate justices, and beside the two Serjeants-at-Law, William “Bull” Davy and John Glynn, was recompense enough, for such opportunities for instant glory seldom came the way of a novice lawyer who had yet to plead a case. Both the coiffed Serjeants (for the mark of their office was a peculiar and ancient headgear) were extravagant personalities, favourites with the press for their shameless play-acting in court. Bull Davy had failed as a druggist in Exeter before taking up the law, and had won lasting fame in 1754 as the (unsuccessful) defender of a gang of particularly ruthless highwaymen. John Glynn was the more conspicuously political of the two, an ostentatiously advanced radical; prominent member of the Society of the Bill of Rights; defender of John Wilkes and elected, along with his client and hero, to a seat in Parliament for Middlesex. Glynn was also such a hostile opponent of the government’s policies in America that he was accused of virtually fomenting rebellion in the colonies. This formidable team was completed by another young unknown, John Alleyne, who proved every bit as impassioned a legal orator as Davy and Hargrave, and James Mansfield (later Sir James), another adviser to the maverick John Wilkes. He had been born James Manfield, but during his undergraduate years at King’s College, Cambridge, had inserted the additional “s” in his name, whether in the hope of being confused with the august Lord Chief Justice or to do him mischief remains obscure.
As if all this were not already good enough for the newspapers, which, from the beginning of the hearings in February, if not before, exhibited a hungry relish for what promised to be a prime performance of judicial theatre, the principal counsel for Stewart and Knowles turned out to be none other than John Dunning, who had so adamantly insisted on the illegality of slavery just a year before in the Lewis case! Dismayed by Dunning’s betrayal, Sharp took it as further evidence of the “abominable and insufferable practice in Lawyers to undertake causes diametrically opposite to their own declared opinions of law and common justice.”10 Although, mystifyingly, Sharp attended none of the sessions in person, the balefulness of his displeasure at Dunning’s treachery seemed to cast a shadow on the normally quick-witted and assertive young lawyer, whose pleading for the violated property rights of Charles Stewart was at best half-hearted. “I hope I shall not suffer in the opinion of those whose honest passions are fired at the name of slavery,” he pleaded, over-optimistically, towards the end of the case. Facing a public audience in Westminster Hall in which friends to the negro were so obviously in the majority, Dunning seemed constantly on the defensive as if cowering from brickbats. “It is my misfortune,” he lamented rather pathetically, “to address an audience much the greater part of which, I apprehend, wish to find me in the wrong.” Deeply disappointed with his lawyer’s transparent lack of conviction, Stewart wrote to a friend in Boston noting that, while the other side “flourished away on the side of liberty” and “gained much honour,” his own counsel was “dull and languid” and, he thought (correctly), would have far preferred to have been appearing for the other side.
None of this play of personalities escaped the press, or for that matter coffee-house gossip, both in London and in provincial cities such as Liverpool and Bristol, where the West Indian sugar interest and the slave trade were strongly established. The newspapers usually refrained from direct commentary while a case was sub judice, but none of the most important papers—not the London Chronicle, the General Evening Post, the Gazetteer, nor polemical weeklies like the Craftsman—were willing to miss this golden opportunity.11 From the first session in early February to Mansfield’s final judgment on the 22nd of June, their pages were open not just to reports of the speeches made in court but also to letters and articles commenting on the state of slavery in both England and the Americas, and on the evils or necessities of the slave trade. Letters on the bestial treatment of field slaves in America were published from correspondents there, as were impassioned denunciations of any prejudices that might treat British subjects differently according to the colour of their skin, and strenuous attempts to defend slavery on the grounds that, compared to the brutal world of the African forest warrior, the plantations of the Caribbean and the American South were an idyll. These were the opening salvoes in what was to be a debate that would continue in Britain at least until the abolition of the entire institution of slavery some fifty years later.
Although not in court himself, no one worked harder than Granville Sharp to stoke the fires of abhorrence. Such was his newly won fame, both as crusader and as musical virtuoso, that he exploited the connections made through his music to lecture the great on behalf of his cause. The prime minister, Lord North, for example, who used the Apollo for musical entertainments, was the recipient in mid-February 1772, of a startlingly prosecutorial letter threatening him with celestial retribution should he fail in his duties to do something about the iniquitous trade: “To be in power and to neglect (as life is very uncertain) even a day in endeavouring to put a stop to such monstrous injustice and abandoned wickedness, must necessarily endanger a man’s eternal welfare, be he ever so great in temporal dignity or office.” To hammer the point home Sharp took the liberty of enclosing his own book, with “two or three pages” to which he especially wished to draw Lord North�
��s attention conveniently indicated with paper flags “because I cannot suppose your Lordship will be able to find leisure for the whole.” However busy Lord North might have been attempting to forestall the separation of the American colonies from British allegiance, Sharp still thought that if he marked the passages in red ink the statesman must be horrified by the laws of Barbados that prescribed a fine of fifteen shillings as the penalty for a master who “wantonly or bloody-mindedly” killed his own slave. This surely, he added somewhat gratuitously “was the most consummate form of wickedness of which a legislature was ever guilty.”12
Sharp was equally tireless in supplying Somerset’s lawyers with all that they could possibly need for the trial. To Serjeant Davy he sent not only the massive results of his own researches into medieval villeinage, and Common Law’s case history on slavery, but also (probably acquired through his brother James, since the item came directly from the ironmonger who made them for the colonies) an example of the iron bit used to prevent slaves from eating cane when labouring in the fields, and another contraption designed for the opposite effect—to force open the jaws of slaves who refused to take food. Heated, the monstrosities could be used to scald the gums and mouth as a punishment; and sometimes, Sharp said, they were used to prevent the most despondent or “sulky” slaves from committing suicide by pathetically cramming their mouths with dirt.
From the outset of the proceedings, however, it seemed that Serjeant Davy needed none of these kinds of incentives to ensure that the case would turn on the plain matter of slavery’s lawfulness in England, rather than the niceties by which Mansfield was constantly trying to duck the main issue. (True to form, Mansfield had suggested to Elizabeth Cade, one of the witnesses to Somerset’s kidnapping, that all the unpleasantness might be resolved by her purchasing his liberty. To her credit, the widow sent the Lord Chief Justice away with a flea in his ear, saying that to do so “would be an acknowledgement that the plaintiff had a right to assault and imprison a poor innocent man in this kingdom and that she would never be guilty of setting so bad an example.”) Before he embarked on a lengthy and learned trail through the history of villeinage and case law regarding slavery, Davy made it abundantly clear that counsel for Somerset would maintain that “no man can be a slave, being once in England, the very air he breathed made him a free man [and] that he has a right to be governed by the laws of the land” on exactly the same basis as any other man. When the case of the Russian slave was judged in Queen Elizabeth’s time, “it was resolved that England was too pure an air for Slaves to breathe in.” And then Davy added, perhaps with an ear to all the radical complaints levelled at “Old Corruption” with whom Mansfield was altogether too friendly, “I hope, My Lord, the Air does not blow worse since.” Now what of it, if slavery may be acknowledged in lands unluckier than England? What, indeed, if slavery was legitimate under the laws of Barbados or the colonies of America where “a New Species of Tyranny” had been created “entirely by Colony government”? (This was the first of many jabs suggesting that if critics were looking for a despotism to attack, they had better look for it on the western side of the Atlantic rather than the eastern.) Why should such laws, made by bodies other than Parliament, have any more “influence, power or authority in this country than the laws of Japan”?13