Turner, Garrow, Zong; Contract law and the slave trade, redux

Slave Ship by Turner, via WikipediaI love the paintings of WIlliam Turner (1775–1851). Every January, the Vaughan bequest of Turner watercolours goes on display in the National Gallery of Ireland, and every January I spend a happy Saturday afternoon in their company. One of Turner’s most arresting paintings is The Slave Ship (Slavers throwing overboard the Dead and Dying — Typhoon coming on) (1840) which is now on display in the Museum of Fine Arts, Boston (thumbnail, left; click through for better image). It is inspired in part by the story of the slaveship The Zong (replica image | image | story | wikipedia). In 1781, the shipowners claimed under an insurance contract for the value of lost cargo, which consisted of 133 slaves thrown overboard because the ship was running out of water. The captain claimed he acted out of necessity; and in the infamous case of Gregson v Gilbert (1783) 3 Doug 232, 99 ER 629, [1783] EngR 85 (22 May 1783) (pdf | National Archives), the claim succeeded at first instance, but failed on appeal.

Although this action was for breach of contract, it is the inspiration for the main action in last night’s episode of Garrow’s Law (BBC | imdb | wikipedia), a BBC television series inspired by the life and times of 18th century barrister William Garrow. The credits provide

In the late 18th Century William Garrow led a legal revolution

Championing the rights of prisoners in court

These stories are inspired by his life and the Old Bailey archives of the time.

On a BBC blog, Mark Pallis argues that without Garrow “there would be no such thing as a courtroom drama” because he “made a drama out of the trial out of necessity”. And in an article in the Guardian he explains:

Garrow’s Law is inspired by his life and the cases from the period. … The transcripts of … real Old Bailey cases have been used as inspiration in the series … [but it] is not a biographical documentary. It’s a drama that aims to give viewers a real sense of what life was like in legal London towards the end of the 18th century; to give people a chance to experience the big legal landmarks and the cases that caused a stir at the time. One such case was that of the slave ship Zong, from which [133] … Africans were thrown into the sea, leading to an insurance dispute. The idea that throwing slaves overboard was regarded by the law in the same way as throwing wood, horses or any other “cargo” overboard was shocking enough to serve as a recruitment aid for the anti-slavery movement.

While this case did not involve Garrow, he would doubtless have been aware of it – and we felt we simply wouldn’t be doing justice to the period if we left it out, and so in our drama it is Garrow who tackles it. I like to think that, given Garrow’s personal policy of refusing to defend slavers, and the fact that, later in his life, he oversaw the first prosecution under the Abolition of the Slave Trade Act of 1807, he would have been happy with the episode.

Although the actual action in Gregson v Gilbert was to enforce the insurance contract, in last night’s episode of Garrow’s Law, the insurance company has honoured the loss to the tune of £4000, but repented of it, and seeks to enlist Garrow as counsel to prosecute the captain of the ship for fraud. Hence, the historical civil action becomes a fictional criminal one, and Garrow is on the side of the angels (or at least not on the side of the devilish slave trade). The television show

‘moved’ the case to the Old Bailey, and made it criminal rather than civil so that it would be part of Garrow’s world. Despite this change, the key issues involved in the two cases are identical.

In the episode, the abilities of the captain were called into question at trial (as they were in the civil case), and Gustavas Vassa gave harrowing evidence of the middle passage (a fictional addition). However, it was not until James Kelsall, former first mate of the Zong, gave evidence that it had rained during the voyage before the slaves were thrown overboard that the trial plainly swung in Garrow’s favour. The jury accepted the evidence; and the captain was duly convicted. This evidence is fictional. However, in the appeal in the civil action, Lord Mansfield held that the ship-owners could not claim insurance on the slaves because the lack of sufficient water demonstrated that the cargo had been badly managed. The point is the same, but the television dramatisation makes it in a far more sensational manner. In any event, the case graphically demonstrated the ill-treatment of slaves being transported from Africa to the Americas, and greatly contributed to the abolition movement. Indeed, at the end of the episode, Garrow expresses to Vassa the “hope the country will make its own verdict” on slavery. It soon would, and not before time.

The trial scenes are powerful television, bringing home the appalling human misery behind the dry commercial realities of an insurance contract. As for Turner’s painting:

the critic John Ruskin, the first owner of Slave Ship, wrote, “If I were reduced to rest Turner’s immortality upon any single work, I should choose this.”

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