British Anti-slavery Legal Activism, 1767-1771

The second section of Sharp’s tract reprints the Habeas Corpus Act (1679) in full. The third is devoted to arguing that re-enslavement on return to the West Indies could not be considered legal on a contractual basis.

Prior to Somerset, Sharp was involved in two further cases that implicated the legal status of slaves in England. First came the 1768 case of the African John Hylas, tried before the Court of Common Pleas, concerning his wife Mary, another fugitive slave who had been kidnapped by her former master, John Newton, and sent to the West Indies. Sharp's reasoning on the case, appearing in a manuscript commentary which indicates that he was present at the trial, was based on Hylas's residence in England and his rights as a husband: �Hylas lived more than a Year and a day in a free State without being claimed; by which circumstance alone he is certainly enfranchised [...]'. Sharp also refers to ha­beas corpus and finds support elsewhere in the common law for the illegality of Mary Hylas's deportation and re-enslavement. Pointing to the law of cover­ture by which the husband and wife become unified under the husband's legal personhood, Sharp concludes that �the Woman follows the condition of her Husband, and if he be free, so must She likewise'. Therefore, Hylas, according to the Habeas Corpus Act (1679), should be entitled both to recover his wife and to receive the substantial damages stipulated therein for a violation, just �as the first Lawyer of the Kingdom would be, if he should lose his Wife in the same manner’. Sharp therefore criticises Hylas’s counsel for bringing the suit as an Action for Damages instead of under the Habeas Corpus Act, but he comments that this error most likely resulted from the �general prejudice’ derived from the Yorke-Talbott opinion. During the legal arguments, Sharp reports, �[i]t was nevertheless, insinuated in court, that Hylas had not much regard for his Wife; that he rather wished for Damages’, and he was presented with a false and �cru­el alternative’ by Newton’s attorneys: �The poor Man indeed was asked in Court, whether he would have his wife or Damages? He replyed [sic] he desired to have his wife’. In his notes Sharp records his protest that �one of them [the Slaveholder’s Council] burst into a loud contemptuous laughter at the very mention of damages for such an outrage’.^[966] Hylas nevertheless won his case and was awarded damages, and the defendant was required to return Mary to England within six months or else pay penalties^[967] The public mockery of Hy­las and his legal counsel nevertheless reveals that there was some confusion over what the most suitable form of action would be not only to free a detained former slave but also to oblige an English court to prevent such deportations in the future.

To this end, Sharp was personally active in the subsequent case of The King (Lewis) v. Stapylton; this time, the trial was initiated by means of a habeas cor­pus action. On 3 July 1770, Sharp was approached by a Mrs. Banks (the mother of the famous naturalist and traveller, Joseph Banks), to assist a young African man, Thomas Lewis, who had been kidnapped by four men at the direction of his former master, a Mr. Stapylton. Mrs. Banks lived near the house at which Lewis was employed as a servant, and she and her own servants had heard Lewis’s cries for help. As reported in Lord Mansfield’s trial notes, Lewis later testified as to the kidnapping on 2July that, on the pretext of his hiring to transport smuggled goods, Stapylton’s henchmen had seized him:

Defendant [Stapylton] said to me, �I [have] got gin & tea. A Custom House Officer [is] waiting. Bring it the back way to Chelsea’. When I went to the Waterside [there were] 3 men & a Waterman. [Two were] Defendants Moloney & Armstrong. 2 of them seized me directly. [There was] a strug­gle. They dragged me, put me in a boat, & [put] a cord round my leg.

They put a stick cross [my mouth] to gag me. Defendant on the side [of the] shore cried �Gag him'.

[I was] carried to Gravesend & put aboard the Captain Seward, a West Indiaman.^{[968] [969]}

With the financial assistance of Mrs. Banks, Sharp obtained a writ of habeas corpus naming Lewis. The ship transporting Lewis had already set sail from the coast but was delayed in the Downs due to unfavourable winds. In the nick of time, the writ was carried on board, thus obtaining Lewis's release and return to London. Sharp also obtained a warrant for the arrest of Stapylton and his accomplices for assault, an action which became the basis of the subsequent trial.44

The case against Stapylton was initially tried before a Middlesex Grand Jury, which issued an indictment against the defendant. It was then transferred to the King's Bench, and was tried before the Chief Justice, Lord Mansfield, on 20 February 1771^[970] During the hearing, Lord Mansfield asked Stapylton's counsel if he could prove that Lewis had been Stapylton's property, and when told that he could prove Lewis �had been a servant’, Mansfield is said to have replied:

The GENERAL QUESTION may be a very important one, and not in this shape ever considered, that I know of. If you have any title of property, I shall first of all leave it to the Jury whether he is the property as a Slave; and then put it in some solemn way to be tried. His being black will not prove the property. [...] I have granted several writs of Habeas Corpus upon affidavits of masters for their Negroes. Two or three, I believe, on affidavits of masters deducing sale and property of their Negroes, upon being prest [sic], I have granted Habeas Corpus to deliver them to their masters; but whether they have this kind of property or not, in England, has never been solemnly determined.^[971]

In stating that Lewis’s �being black will not prove the property’, Mansfield makes an important distinction between an individual’s �colour’ or race and slave status imposed on Africans as it existed in the colonies^[972] Nevertheless, Mansfield recalls having issued writs of habeas corpus to retrieve �Negroes’ claimed as slaves from impressment as sailors into the British navy - a not uncommon way of rescuing pressed men if a writ could be obtained, but in these instances the writs were issued at the request of slaveowners to recover their property^[973] Mansfield then stated that if counsel could present a bill of sale showing Lewis’s purchase as a child, Stapylton should be acquitted^[974]

In response to Mansfield’s instructions, Lewis’s counsel, Mr. Dunning, as­serted that even if such evidence of purchase were presented, �that no such property can exist - which I will maintain in any place, and in any Court in this kingdom; reserving to myself a right to insist that our laws admit of no such property’.^{[975] [976] [977] While speaking, in corroboration of his legal reasoning, Dunning reportedly held up a copy of Sharp’s A Representation of the Injustice and Dan­gerous Tendency of Tolerating Slavery in England, �having one finger in the book, to keep open a particular part’.5i Mansfield’s reported reply was tellingly in keeping with his desire, now and then, to move away from old authorities:}

There are a great many opinions given on [the question]. I am aware of many of them: but perhaps it is much better it should never be finally dis­cussed or settled. I don’t know what the consequence may be, if the mas­ters were to lose their property by accidentally bringing their slaves to England. I hope it never will be finally discussed; for I would have all mas­ters think them free, and all Negroes think they were not, because then they would both behave better^²

In his comments after the completion of arguments by counsel during the subsequent Somerset hearings, Mansfield seems to have been alluding to Lew­is's case when he mentions that �Contract for sale of a slave is good here; the sale is a matter to which the law properly and readily attaches, and will main­tain the price according to the agreement'; evidently, he had not been con­vinced by Lewis's counsel, or indirectly, by Sharp's legal arguments as rehearsed by Lewis's lawyers on the illegality of human property.^{[978] [979] [980] [981]}

The jury, however, determined that Stapylton had failed to prove that Lewis had ever been his property, and found him guilty on that account, making un­necessary a special verdict before a full bench of judges on the larger question of the legality of property in slaves in England. At a subsequent hearing on motions for judgment by Lewis's lawyers, held on 17 June, the Chief Justice declined to state a final judgment against Stapylton and his accomplices, tell­ing Mrs. Banks's counsel that â€?I should advise her not to bring him [Stapylton] up, as she has got the Black in her possession'^⁴ His language suggests that he was still framing the outcome of the case in terms of a property transaction concerning a purported slave. Mansfield's initial advice to Charles Stewart and his counsel to come to a similar settlement and avoid a verdict in the Somerset case would echo these comments.55

Mansfield's trial notes also report Lewis's testimony that he had been cap­tured by a Spanish privateer while he was on a voyage with Stapylton and be­fore their arrival in England - an event that was significant according to Mans­field's instructions to the jury, because it implied a gap when Stapylton had not maintained custody of Lewis, further undermining his ownership claim.5⁶ Such logic required an assessment of Stapylton's property rights and would have been another source of frustration to Sharp and Lewis's counsel, who had denied that any such rights existed or could exist. According to a manuscript transcript by Sharp of the hearing (from which his biographer Hoare must have been quoting), Mansfield also remarked immediately after the jury's deci­sion in favour of Lewis that â€?Afterwards I had a Doubt in my Mind (and as it may be a General Case I am very glad to have this opportunity of mentioning

it) whether a Slave may be a Witness to prove himself Free’. Dunning respond­ed by pointing out that given the absence of the bill of sale proving the pur­chase of Lewis by Stapylton, there was no contrary evidence to contradict Lewis, and in any case �if he had been any other Person’s Slave he was entitled to be protected the same as if he was free’. Mansfield reportedly agreed.^[982] This exchange emphasizes the crucial agency of habeas corpus in bringing Lewis’s case before the court where his testimony as to his assault during his kidnap­ping could be heard, since the remedy for unlawful detention had issued for Lewis as a �writ of right.^[983] Most likely following Sharp’s advice, based in the results of Strong’s and Hylas’s cases, Lewis’s lawyers had been clever to pursue a combined legal action, habeas corpus followed by assault, which neverthe­less had not elicited the judgment concerning slavery’s legality in England that Sharp had hoped to provoke but Mansfield appeared reluctant to pursue.

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