Thoughts on Lord Mansfield, James Somersett and Dido Belle
by Jerry Leibowitz
To remain as I am is impossible; I must die or be better…
With the release of the wonderful movie Belle, there is another in what has been a periodic reassessment of Lord Mansfield (1705-1793) and his legal decisions. Were his decisions against slave traders and benefitting runaway slaves based on deeply held beliefs or narrow commercial law principles? Did his dark skinned niece Dido Elizabeth Belle’s presence in his house influence him in his decisions on the Zong, or perhaps the Somersett Case? Why did he provide for the manumission of Dido in his will if she was a free black woman? Did he appreciate the impact of his decisions or, as some believe, continually minimize their scope? Did he singlehandedly start the American Revolution through the Somersett decision? The numerous questions raised by his decisions and life require thoughtful analysis.[i] Here I skim the surface for a logical approach to this man and how his decisions affected his times.
Lord Mansfield had a brilliant legal mind. It would not be an exaggeration to say he is considered as one of the geniuses of legal thought. He is basically credited with codifying if not inventing Commercial Law.[ii] One must therefore begin with the assumption that he knew exactly what he was doing and said and wrote exactly what he meant. In the area of Commercial Law, fortunes are often made or lost as a result of a legal decision. It must be assumed that Lord Mansfield contemplated the consequences of his decisions, and to the degree that anyone can, knew full well of their ramifications.
The current reassessment as a result of the movie Belle focuses more on his role as a social justice. The Somersett Decision (1772), in which he freed an American slave who had been brought to England is often credited with jumpstarting the antislavery movement if not outright declaring slavery illegal, something that it did not do. The Zong decision (1783), difficult to address due to its horrible facts, is given great play in the movie when really I could have decided that case correctly. If bad facts make bad law, it must be said of the Zong decision that horrible facts can make no law at all. Still the questions about Lord Mansfield motives and objectives must be addressed if only to clarify and contextualize the liberties taken in the movie Belle.
One interesting theory is that Lord Mansfield did singlehandedly start, or at least made inevitable, the American Revolution.[iii] In 1772, he issued the decision in Somersett’s Case where he freed the slave James Somersett solely because Somersett had been brought to the free soil of England by his slave master. It is unclear if there was a written decision or if the oral decision was transcribed and reported. What is not in doubt is the fact that as a high judge of British Courts he called the practice of slavery “odious”. He did not have to use that word or any pejorative term to get to his result. He could have found some way to decide the case under Commercial Law principles without diving into the merits of controversial social topic whose survival was of great concern to the commercial interests of 18th century Great Britain. Whether the decision freed one slave, as Benjamin Franklin suggested, or was intended to be the basis for freedom of all slaves in England and perhaps all of Great Britain has been debated. I suppose that was purposely left murky by Lord Mansfield. What is not in doubt was that Lord Mansfield sent a message to slave holders. He told proud men like Patrick Henry and George Washington and Thomas Jefferson that their practice of owning slaves was odious and by extension, they were barbarians. Lord Mansfield was more stating the obvious than providing a revelation. How could the decision not have impacted wealthy slaveholders who were British subjects operating under British Laws when a great judge of Great Britain called them odious? One would think that there must have been a reasonable fear that the existence of the institution of slavery would eventually be terminated by the same tribunal. Hence, the theory goes, the American Revolution or at least the southern participation in the War became inevitable to protect the institution of slavery. All from one word in one decision that had nothing to do with slavery on the American continent. The problem with the theory is that in the thousands of documents written by and about American patriots in the 1770’s, there is nary a mention of the decision in Somersett’s Case. While some thoughts are better left unsaid or at least unwritten, it seems unlikely that the decision in that case could be so important yet not have crept into some contemporary documents. There was a lot going on in America then as loyal British subjects were moved to become revolutionaries. The role of the Somersett decision in that process clearly deserves to be considered as a motivational theory, even as the reported facts of the time tend towards minimizing its significance absent better proof.
Let me backtrack. Even as great a mind as Lord Mansfield could not know the ultimate consequences his decision in Somersett’s Case might have. In 1772, he could not guess that instead of searching for practical ways to address the slavery issue, by 1775 the Americans would unite against British rule and start a revolution. He could not know that the Americans would be victorious in the War and therefore successful in promulgating “positive law” that would continue the institution of slavery well into the 19th century. He could not know (well maybe he could!) that the hearts of men could be so cold that they would double down in their odious practices. All he could know is that in 1772 slavery in America and the slave trade of Great Britain seemed intractable; he could not score his goal, he could only move the ball. I do not think anyone can contemplate the word “odious” and not know where his heart stood. Lord Mansfield was categorically against the institution of slavery and of that there can be no doubt.
Lord Mansfield had tremendous respect for the law and not only did he want his decisions to make sense, he wanted Commercial Law to be codified under consistent principles. His Commercial Law decisions provided great certainty to the mercantile interests of Great Britain. No matter what his personal feelings about slavery were, he still had to apply consistent principles to the cases before him. But where did slavery fit into Commercial Law? If slaves were chattel they could be treated as any other property, subject to the whims of the owners. But what other chattel could become free? By 1772, London was a city with a sizable population of former slaves who were living as free persons. One such person, Dido Elizabeth Belle, was related to him, she lived in his house, and by many accounts was cherished by him. These free people owned things…and ownership is the bedrock of Commercial Law. Chattel cannot own chattel. What if someone claimed to own someone living as a free man, much as Charles Stewart claimed to own James Somersett in 1772? How could Commercial Law deal with this oddity? The simple answer is that it could not! There really was no way of including slavery into any system of Commercial Law that would truly make sense. To Lord Mansfield, two important principles intersected. The first was that slavery and anything connected to slavery was “odious”. The second was that there could be no consistent rules of Commercial Law in the murky areas relating to slave ownership. The cases involving slavery existed in their own universe; a place where humans could be compared to horses. It was a place where Lord Mansfield could use words like “odious” to convey his heartfelt opinion that such a universe should not exist. So yes, it is most likely that Dido Belle’s presence in his home influenced his decisions, but not more so than the world influences the decisions of all of us, each and every day.
I have a special interest and expertise in the somewhat controversial area of adverse possession, where the ownership of real property changes based on possession. Lord Mansfield invented the term “adverse possession” and helped change the notion of adverse interests from a negative approach to a positive one. Before this approach the title to abandoned property was forfeited by the old owner but no new title was created in the hands of the possessor. Lord Mansfield helped create the new notion of good title by possession and thereby cleared up many of England’s longstanding title issues. Think now of Dido Belle. Under the Somersett decision by her great uncle she was a free woman as long as she lived in England. Right? Well not if you read the Treaty of Paris. The Americans who spouted about liberty and independence wanted all of their slaves back as a spoil of winning their war. After 1781 and the surrender of Cornwallis, the former slaves in England, their children and their children’s children were considered by the victorious Americans to be slaves again, subjected to return to America. They became a subject of treaty negotiations in 1783 and again in 1794.[iv] These negotiations did not go well for the (former) slaves. Lord Mansfield had no claim of ownership of Dido Bell through any purchase, so by what right could he confirm her freedom in his will? Adverse Possession, of course, or at least the similar principle as applied to chattel. Arguably Lord Mansfield’s work in codifying adverse possession of chattel freed more slaves than his Somersett decision…quite a trick for work in commercial law.
I am unabashed in my praise of Lord Mansfield and the first Four Dukes of Northumberland, of whom I have written about elsewhere. If the definition of greatness is when one rises above their circumstances, then these are all great men. Born into an entrenched system which they benefited from greatly, they worked to change that system at its core. None of them ended slavery in America but each in their own way moved the ball forward towards that end. That is more than I can say for some American “heroes”, who elegantly wrote of and fought for liberty yet did nothing to help the millions of people that they ultimately helped oppress.
[i] A great place to start is the recent biography by Professor Norman Poser entitled Lord Mansfield, Justice in the Age of Reason (McGill-Queen’s University Press, Canada 2013. The book provides a complete and balanced context for any discussion of Lord Mansfield and his times. I would also like to personally thank Professor Poser for his emails which helped me clarify some thoughts appearing herein.
[ii] Bernard L. Shientag, Lord Mansfield Revisited– A Modern Assessment, 10 Fordham L. Rev. 345 (1941).
Available at: http://ir.lawnet.fordham.edu/flr/vol10/iss3/1. Accessed June 17,2014
[iii] See Alfred W. Blumrosen and Ruth G. Blumrosen, Slave Nation, How Slavery United the Colonies & Sparked the American Revolution (Sourcebooks Inc., Naperville Illinois 2005).
[iv] The Autobiography of Colonel John Trumbull, Edited by Theodore Sizer for the Library of American Art (Kennedy Graphics, Inc.-Da Capo Press New York 1970) Page 180.