(Editor’s note: This is an essay from Black Marxism and American Constitutionalism: From the Colonial Background through the Ascendancy of Barack Obama and the Dilemma of Black Lives Matter, 4th ed., Chapter One, “The Colonial Background.”)
The commodification of Africans as articles of commerce with legal imprimatur is revealed by the infamous Zong case, known in maritime law as Gregson v. Gilbert (1782). This case demonstrates that slaves, as things, were owned by juridic subjects.
The facts of the case are striking. The slave ship Zong, under the captaincy of Luke Collingwood, embarked from West Africa to Jamaica on Sept. 6, 1781. In chains were 470 slaves. Eight weeks into the voyage, a viral epidemic took the lives of 60 Africans and 16 crew members.
Knowing he was running low on water, Captain Collingwood, over the objections of his chief mate James Kelsa, decided to throw overboard the weakened and sick slaves. Collingwood understood that maritime insurance law would protect his insurers if slaves were lost when thrown into the sea because of maritime necessity.
Collingwood died before the Zong returned to London and thus did not witness the adversarial litigation between Gregson, owner of the Zong, and Gilbert, the insurance underwriter. Gilbert refused to pay 30 pounds per slave loss that Gregson was claiming.
The initial trial jury found for the plaintiff Gregson, but Gilbert appealed to a three-judge panel, which included Lord Justice Mansfield. The panel recommended a new trial, but the historical record is silent as to the resolution of this case.
British abolitionists, Black and white, demanded that a charge of murder be added to the litigation. However, Gilbert’s attorney rejected this possibility by demurring that Africans were property and therefore could not be murdered, contending it would be “madness” to think otherwise.
The legal commodification of humans as issues of commerce, profit and fault that accrued to monetary damage revealed law’s own internal logical structure, but also how that structure was contoured by racialism grounded in the needs of political economy.
The social history of Lord Mansfield, as an individual, is important to the Zong case. Several years prior, Lord Mansfield had agreed to raise an African preteen who was the offspring of his nephew Sir John Lindsey.
Lindsey’s “man-of-war” battleship had secured a Spanish slave ship and Lindsey developed a fondness for a young African slave woman who bore Lindsey’s child. That child became known as Dido Elizabeth Belle.
At the same time, Mansfield agreed to raise another nephew’s child, Margaret Murray, who was blond and green-eyed. Eventually, Mansfield commissioned an artist to paint the two teen first cousins, and this painting today hangs in the Murray castle in England.
Before Mansfield’s death, he drafted a new will, giving Belle lifelong financial security. Ms. Belle’s story was retold in the 2013 Hollywood film Belle. In the film, it appears that Belle had a moderate influence on Lord Mansfield as he decided the famous case of James Sommersett.
Sommersett was a slave in the West Indies whose owner brought him to England while attending to business affairs. With the legal advocacy of London’s antislavery organization, Sommersett sued for his freedom, claiming that England’s “soil and air” could not sustain the institution of slavery.
Mansfield agreed and freed Sommersett on the principle that England had no positive law establishing slavery and that the natural state of all humans living in England was freedom. Mansfield said slavery was so “odious” and thus “by the law of England the black must be discharged.”
Understanding the gravity of this dramatic change in the social relations of England, Mansfield added, “Fiat justitia, ruat coelum”—let justice be done whatever the consequences.
