The Hero of Bloodless Reform

What attracted you to the story of Granville Sharp and the Somerset case?

I have spent the last 20 years as an animal-rights lawyer. In my process of trying to understand whether non-human animals should have basic legal rights and if so which ones, I began to ask, Why should humans have rights? When did humans get rights? Which are the most fundamental? What is it about being human that qualifies us for rights?

As I began to look into those questions, I kept running into the question of human slavery. Why is it that some humans enslaved others, so that instead of viewing them as legal persons with rights, they were viewed as "things" without any rights at all that existed for the benefit of legal persons. And then how did that change? How did legal things become legal persons? How did slaves become free? How did they get rights?

That kept leading me back to the Somerset case where, instead of having a civil war like we had in the United States to free the slaves, England managed to free the slaves through a single judicial decision. It's a lot better to have social change come about through judicial decisions or legislative change than through civil war. So I kept coming back to Somerset and I became engrossed in the details of the world of Granville Sharp, Lord Mansfield, and James Somerset.

Is the story of the Somerset case just a good tale? Or does it present us with a usable past that can help us deal with issues today?

Both. It's an interesting tale. The characters are eccentric, dedicated, intelligent, certainly immersed deeply into their own time.

Granville Sharp is a fervent believer in a particular sort of Christianity who indeed believes in the literal truth of the Bible. But he's fiercely anti-Catholic—doesn't even classify Catholics as Christians. Lord Mansfield is probably the most capable, qualified judge ever spoken, extremely fair. Although he was a man of his time and had his own weaknesses and strengths.

The Somerset case is the tale of the conflict between these two men. Granville Sharp, determined that slavery was wrong and that Lord Mansfield was going to be the instrument by which it was abolished. And Lord Mansfield also believing that slavery was probably wrong, understood in a way that Granville Sharp did not understand that abolishing slavery could have very severe economic and social consequences for Great Britain.

And then, there's the fact that a black man, a slave, a thing, was able to use the judicial process to pass from being a thing to a person. The way his lawyers, others, and judges used the writ of habeas corpus has many lessons for us today. In fact I was not surprised that last June when the United States Supreme Court handed down its series of path breaking habeas corpus cases around the prisoners in Guantanamo Bay that they cited Somerset.

And certainly it's one lesson that I intend to draw in my work on behalf of non-human animals.

You mentioned the religious commitment of Granville Sharp. He was associated in the Antislavery Society with William Wilberforce and the Clapham Sect and other evangelically-minded social reformers. To what degree did his religious commitment make it possible for him to persevere through four different cases?

Sharp's religious commitment was the motivating force behind his anti-slavery work. He was very moralistic in the best sense. He saw something that he thought was against God's will, was morally wrong, and which he felt was such an abomination that really stained the reputation of the country he loved. And once he decided to stop it, I think his religious fervor and his faith motivated him to keep going and bring case after case.

Wilberforce was a younger protégé of Sharp's and was extremely awed by Sharp.He believed Sharp was the first abolitionist. You had a number of the people like Wilberforce who would always view him as the first abolitionist. He wasn't the first person, obviously, throughout history to believe that slavery was odious and wrong. But he was really the first person who said, "It's wrong, and it's going to be stopped; I have a plan and a strategy; and I intend to spend my whole life doing it if I have to."

There are a lot of parallels between the kind of work Sharp was doing and the public interest law firms that we know today, such as the ACLU and its conservative counterparts. Does public interest law have its roots in this kind of activism?

I suspect it does. Granville Sharp was not even a lawyer. He was a lowly ordnance clerk who labored away in the Tower of London. In fact, he would write to some of his friends in the U.S. and say that he was kind of a slave, chained to a job to support himself. He spent hours and hours a day, six days a week for many years. He did not operate at the high social levels, didn't have access to the decision makers the way a prominent lawyer might.

But he decided, just as a private citizen, that he was going to right a wrong. And everyone from then on owes some kind of a nod to him because he was not doing it as part of a profession and not doing it because he was being paid to do it. His personal beliefs motivated his legal work.

At points in reading your account, Lord Mansfield seemed like somebody engaging in judicial activism. At other points he sounded very conservative and concerned with maintaining the status quo. How do you read Mansfield?

Mansfield was, indeed, a deeply conservative judge. Conservative values can involve trying to maintain some of the most deeply held values and principles that someone believes in.

The most important part of Lord Mansfield's decision was his determination that slavery was odious, that it was immoral. And it was so immoral that the common law, which should really track morality, would not support slavery.

Common law judges can be categorized in three major ways: one kind might be deeply conservative in that he or she will look back to see what other judges have written and try to follow that. But there's an immense amount of room for having two judges who feel that way coming with diametrically opposite opinions.

Then you have judges who think that the past does not necessarily need to control the present, but that what's really important is that a judge do what is right. I call them principled judges. Lord Mansfield ultimately did what he thought was right.

And then there are policy judges. They are not interested as much in doing what is right as in doing what is good for society. The slave interests, indeed, were pressuring Lord Mansfield to do not what was right, but to do what was good. They were reminding him what the economic value of each slave was, how deeply Great Britain was committed to the slave trade, what an economic catastrophe it could be if he abolished slavery, and how that would cripple and potentially devastate England's economy.

So they wanted him to do what was good for the country and Granville Sharp wanted to do what was right. Mansfield wanted the parties to settle, but they wanted a test case. So in exasperation he finally said, Well then, if you're not going to settle, let justice be done, though the heavens may fall.

In the aftermath, Mansfield tried to play down the significance of his decision, and yet it took on huge symbolic significance.

It really went out of his hands, and I'm sure he heard a lot about it. He traveled in very wealthy circles. Many of his friends were slaveholders. Many of them were deeply conservative people economically and would not have been happy with this decision, but even unhappier about what people did with the decision.

I don't think Mansfield was planning on being known as the father abolitionism. The way people spun the Somerset decision on both sides of the Atlantic, both inside and outside the courtroom, made him uncomfortable because they made it seem like it was an absolutely radical decision than the deeply conservative decision Mansfield wanted.

In America it took a bloody civil war to deal with the slavery issue and yet in England it was dealt with through the courts. Could America have avoided all the bloodshed?

Yes, we could have. But for immensely complex political reasons we did not. And that is something that Americans should continue to be ashamed of.

It's something that the English are delighted about. I opened the book with the bicentennial dinner given by the Corporation of London in 1972 in which the Lord Mayor of London notes that in order to abolish slavery in the U.S. they had to have a bloody civil war. But the English, the more civilized country, was able to abolish slavery through a judicial decision. And indeed, that is something to be proud of.

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