I have no books to consult
- Lord Mansfield: Justice in the Age of Reason by Norman Poser
McGill-Queen’s, 532 pp, £24.99, September 2013, ISBN 978 0 7735 4183 2
In March 1718, 13-year-old William Murray, the 11th of Viscount Stormont’s 14 children, set off from the family seat at Scone, near Perth, on a pony. The journey to London, which he made alone, took him almost two months, and it is probable that he never saw Scotland again. Although it was a bare three years since the first Jacobite Rising had attempted to place the Old Pretender, James Edward Stuart, on the throne, and although the Murrays were well-known Jacobites, the family was well enough connected to ensure that, when he reached London, William was able to enter Westminster School and then Christ Church, Oxford, at both of which he shone as a scholar.
Lord Mansfield, as Murray became, spanned the 18th century in more than simply years, though living from 1705 to 1793 was a good start. As chief justice of the King’s Bench for 32 years, he modernised an antiquated system of common law and rationalised a diffuse system of mercantile law; he drafted statutes; he played a central role in politics as cabinet member, counsellor and confidant; he knew everyone from Boswell to Blackstone and Pope to Pitt; and at Kenwood in Hampstead he constructed a mansion, designed by Robert Adam, and a park which remain a high point of British design.
Norman Poser is not Mansfield’s first biographer, but he is arguably the best so far. The first, John Holliday, wrote his not always reliable memoir shortly after Mansfield’s death. Then came Lord Campbell, himself a chief justice, whose biographies of his predecessors became known as one of the new terrors of death, and whose Life of Mansfield contains at least one palpable fabrication. In the 20th century two scholars, Edmund Heward and C.H.S. Fifoot, produced good short biographies focused on Mansfield as a lawmaker; and James Oldham (the author of the excellent entry on Mansfield in the current DNB), with new access to a large cache of Mansfield’s trial notes, produced a scholarly cornucopia, the two-volume Mansfield Manuscripts. Poser, with the further advantage of access to the mass of Mansfield documents assembled over 22 years by Arthur Vanderbilt, who died in 1957 just before retiring from his post as chief justice of New Jersey, has now written the comprehensive biography that Vanderbilt had planned to write.
The well-known engraving of Mansfield, taken by Bartolozzi from the portrait that Reynolds painted of him at the age of eighty, shows what has always seemed to me to be a thin-lipped and cruel face. It is cheering to learn that the reason, according to Reynolds, is that Mansfield had by then lost his teeth. Although Boswell in earlier years had found his ‘cold reserve and sharpness’ repelling, earlier portraits show a much more genial face. In parallel, the real-life Mansfield can be read as a hard-nosed careerist and canny lawyer whose wealth and connections enabled him to survive a good many deserved and a few undeserved buffetings; or as a contradictory and often inconsistent potentate, ruled as much by his heart as by his head; or as both, depending on the situation in which he found himself. Whichever it is to be, a judgment needs to go beyond the simplistic contrast drawn by Poser between Mansfield’s legalism and his ‘decency and sense of fairness’; or the amalgam, as Poser perceives it, of an ‘astute understanding of human nature with a vigorous aspiration to achieve justice’. These are superficial, even hagiographic, evaluations; but Poser’s achievement as a biographer is to equip others to form a fuller judgment.
‘Lord Mansfield’ by John Singleton Copley (1782)
On one level, Mansfield’s was a model career and Samuel Smiles wrote of him with reverence. His wife, Elizabeth, to whom he was devotedly married for 46 years, was the daughter of an earl and the granddaughter of a lord chancellor. A dutiful but not excessively devout Anglican, he prospered at the bar, then entered Parliament and almost at once was appointed solicitor-general. He was promoted to attorney-general, a position from which he was able within two years to claim the vacant post of chief justice of the King’s Bench, the principal court of common law. More than once he turned down the office of lord chancellor, aware that, in spite of its grandeur, it was a post that was unlikely to outlast the current ministry. Unsatisfied with the barony that had been conferred on him when he was made chief justice (he took the title from one of the estates of his patron, the Duke of Newcastle), he bided his time and, following the first British victories in the American war, which Mansfield supported, asked the king for an earldom. By now he was an extremely wealthy man from his practice at the bar, from the huge salary and perks of the chief justiceship, and from shrewd mortgage lendings which at his death were said to be bringing in £30,000 a year.
The full text of this book review is only available to subscribers of the London Review of Books.
Vol. 37 No. 3 · 5 February 2015
The ‘legal folklore’ surrounding the case of James Somersett in 1772, described so trenchantly by Stephen Sedley, is more extensive than is commonly assumed (LRB, 22 January). It is time to put this old chestnut to bed. Somersett’s case is standard reading on constitutional law courses in the US, with its alleged affirmation of the right to liberty. William Holdsworth’s History of English Law (1977) described it as ‘a case connected with colonial institutions which gave rise to what is perhaps the earliest direct judicial decision that English law does not recognise slavery’.
The truth is more prosaic. In the 18th century, some English judges upheld the rights of slave owners to claim property in their Negroes either on grounds that they were not Christians, or by appealing to the practice of the merchants, whose trade in slaves was presumed to be sanctioned by the jus gentium. Others were less sure. They took the view that a slave setting foot in England became free immediately. Not quite then the tradition of liberty in the common law that one might assume. Writing in the Law Quarterly Review in 1934, Edward Fiddes explains how, ‘by the end of the 17th century, the long series of decisions had begun in which judges freely contradicted each other and occasionally themselves. For nearly a century, there was a rhythmical seesaw of judicial opinion, now for slavery, now against.’
The real hero of the times is Granville Sharp, who challenged the ‘Yorke and Talbot Opinion’. One evening in 1729, in Lincoln’s Inn, a deputation representing the powerful West India interest approached the law officers of the crown, attorney-general Philip Yorke and Charles Talbot, the solicitor-general, in order to seek a clarification of the matter. ‘We are of the opinion,’ they stated, ‘that a slave, by coming from the West Indies to Great Britain, doth not become free, and that his Master’s Property or Right in him is not thereby determined or varied: And that Baptism doth not bestow freedom on him.’
The Yorke and Talbot Opinion was very popular with the West India interest, becoming, in the words of Folarin Shyllon, a ‘slave-hunter’s charter’, which made every black man, woman or child unsafe and under imminent threat of removal by force into slavery.’ In the case of James Somersett, Mansfield observed irascibly that the case was a petition in Lincoln’s Inn hall, after dinner, and therefore might not be taken seriously, but the fact is that it was.
Sharp was the great abolitionist of the period, and it is said that in the solitude of his chamber, he attempted to overthrow the Yorke and Talbot Opinion. He set out to explore the original sources of the laws of England. In 1769, he published A Representation of the Injustice and Dangerous Tendency of Tolerating Slavery, or of Admitting the least claim of Private Property in the Persons of Men, in England. In his introduction he referred to the Habeas Corpus Act (1679): ‘No subject of this realm that now is, or hereafter shall be an inhabitant or resident of this kingdom … shall or may be sent prisoner into places beyond the seas; and that every such imprisonment is hereby enacted and adjudged to be illegal; and that if any of the said subjects shall be so imprisoned, every such person so imprisoned may maintain by virtue of this Act, an action or actions of false imprisonment, in any of His Majesty’s Courts of Record.’
Sharp argued the claim of private property could be maintained only if ‘the pretended proprietors could prove that a slave was neither man, woman or child: and if they are not able to do this, how can they consider a person as a mere “chose in action”?’ A slave, by coming to England, owed allegiance to the king and to the laws of England, and became the king’s property. Sharp concluded that because the slave was the king’s property in this relative sense he could not be out of the king’s protection. For Sharp the terms ‘subject’ and ‘persons’ in the Acts of England incontrovertibly included black people. For ‘if this were not the case would it not be esteemed a great injustice, if anyone was to allege that a Hungarian, Pole, Muscovite or alien of any other European nation, is not protected by our laws when in England, because there was a possibility that his countrymen might not have been had in consideration or contemplation at the time of making these laws?’ Sharp sent his manuscript to eminent members of the legal profession. He sent it to Blackstone, who told him that it would be ‘uphill work in the Court of the King’s Bench’. And so it turned out to be.
When the case of James Somersett was heard in 1772, ‘the public had looked on the trial as a struggle between freedom and slavery.’ But Somersett’s case did not lead to an emancipation of slaves. While Mansfield considered the ‘state of slavery’ to be ‘incapable of being introduced on any reason, moral or political’, he also stated that a ‘contract for sale of a slave is good here: the sale is a matter to which the law readily and properly attaches … But here the person of the slave himself is immediately the object of enquiry; which makes a very material difference.’ At one point, he seemed unperturbed by ‘whatever inconveniences … may follow from the decision’, but at another he expressed concern that, ‘the setting of 14,000 or 15,000 men at once loose by a solemn opinion is very disagreeable in the effects it threatens.’ A measure of the illiberality of the decision can be gleaned from the far earlier decision in the century of Lord Chief Justice Holt, who in Smith v. Gould in 1706 decided that trover would not lie for a black man because the law took no notice that he was different from other men.
Thirteen years after Somersett in R v. The Inhabitants of Thames Ditton, Mansfield found that an African who had been bought in America and brought to England by her master was not a hired servant, as contended. Settlement for a year in a parish entitled such a hired servant to pauper relief in that parish. It was argued for her that ‘the legislature could not mean to exclude the particular case of this Negro … and the pauper had lived as a servant from year to year, and therefore, is to be considered as a servant as far as the laws of England will permit.’ ‘The statutes do not relate to them [slaves],’ Mansfield decided, ‘nor had they them in contemplation.’
It was not until 1833 that Parliament in England finally abolished slavery. But even then, as Lester and Bindman record in Race & Law (1972), a contract by a British subject to sell slaves in Brazil was considered valid by a British court some thirty years after that date, on grounds that possession of slaves was lawful in that other country.
King’s College London
Vol. 37 No. 4 · 19 February 2015
Stephen Sedley’s learned review of my biography of Lord Mansfield (LRB, 22 January) and Satvinder Juss’s equally learned letter (Letters, 5 February) both state, correctly, that Mansfield’s decision in the Somersett case did not end English slavery or the slave trade. In fact, the slave trade flourished in the years immediately following the 1772 decision. Of the 12 million Africans who were transported across the Atlantic to the Americas between the 16th and 19th centuries, more than half were brought over after 1776.
But both Sedley and Juss fail to acknowledge the significance of the Somersett decision as a paradigmatic example of the way the meaning of a legal decision can change and have growing force as the morals of society change. The decision became steadily more important as the years went by and provided crucial support for the growing and increasingly intellectually respectable abolitionist movement. Mansfield’s narrow interpretation of his decision – that he had simply held that a slaveowner cannot compel a slave to leave England – gave way to a broader interpretation: that slavery in Britain had been repudiated in toto. In the last year of his life (21 years after the Somersett decision), Mansfield acknowledged to the abolitionist Granville Sharp that the case had undermined British slavery. Britain abolished the slave trade in 1807 and slavery in 1834.