The Slave Trade and the Origins of

International Human Rights Law

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The Slave Trade A nd
the Origins of
International
Human Rights Law

Jenny S. Martinez

1
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Copyright © 2012 by Jenny S. Martinez

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Library of Congress Cataloging-in-Publication Data

Martinez, Jenny S.
The slave trade and the origins of international human rights law / Jenny Martinez.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-539162-6 (hardback)
1. Slavery—Law and legislation. 2. Human rights—International cooperation. I. Title.
K3267.M37 2011
341.4′8—dc23 2011016418

1 3 5 7 9 8 6 4 2
Printed in the United States of America
on acid-free paper
Dedicated to Mom, David, Alyse, Patrice, and Nancy
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CONTENTS

1. Introduction 3
2. Britain and the Slave Trade: The Rise of Abolitionism 16
3. The United States and the Slave Trade: An Ambivalent Foe 38
4. The Courts of Mixed Commission for the Abolition of the
Slave Trade 67
5. Am I Not a Man and a Brother? 99
6. Hostis Humani Generis: Enemies of Mankind 114
7. From Crisis to Success: The Final Abolition of the
Slave Trade 140
8. A Bridge to the Future: Links to Contemporary International
Human Rights Law 148
9. International Human Rights Law and International Courts:
Rethinking Their Origins and Future 158

Acknowledgments 173
Notes 177
Index 245
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The Slave Trade and the Origins of
International Human Rights Law
This page intentionally left blank
CHAPTER 1

Introduction

I
t was April 1822, and Captain Henry John Leeke was sailing off
the coast of Africa on the HMS Myrmidon. As always, Leeke
scanned the horizon, looking for the contrast of white sails against
the brilliant blue waters. The sails might belong to one of his fellow cap-
tains in the British Royal Navy. They might belong to an English mer-
chant ship, headed to the British colony at Freetown, Sierra Leone. Or
they might belong to an illegal slave ship. In the holds of that ship might
be 300, 400, even 600 miserable men, women, and children.
Leeke carried orders directing him to search for and capture ships
carrying slaves. British law had banned slave trading since 1807, but
more recently Britain had signed treaties with Spain, Portugal, and the
Netherlands outlawing the traffic. Leeke, like other British officers sta-
tioned in waters where slave traders were known to sail, had copies of
the treaties authorizing him to search ships from these nations. Ships
that were slave trading in violation of the treaties were subject to seizure
and forfeiture. Leeke and his crew stood to profit from the successful
capture of an illegal slave ship, for the law allowed them a share of the
proceeds from the sale of the forfeited ship and sometimes a bounty for
each slave liberated.
 When he spotted a suspicious vessel, Leeke would order his men to
trim the sails and begin the chase. Even a legitimate merchant ship
might flee; from a distance, her crew would not be able to tell that the
Myrmidon was a navy ship and not a pirate. The captain of a slave ship
was certain to try to get away.
The appearance of the Myrmidon on the African coast had “com-
pletely alarmed the slave captains,” who up until then had “trusted in
the superiority of their schooners sailing.”1 The slave traders favored
fast ships, like the light Baltimore clippers that had been built for use as
privateers during the War of 1812 between Britain and the United
States.2 A heavy merchant ship might travel at five knots; the clippers
regularly traveled at ten or twelve knots, and some were reported to
have reached twenty knots. Many of the Royal Navy’s ships were built
for rough conditions in the North Atlantic, not speed in tropical waters.3
But the Myrmidon, a sprightly sloop, was fast enough to catch the swift-
est slave ships.4
Even at the helm of a fast ship like the Myrmidon, Leeke might find
himself chasing a suspected slaver for hours or even days. When the
Myrmidon finally pulled within cannon range of the other ship, Leeke
knew anything could happen. Leeke had been on the African coast for
three years and had stopped dozens of ships. The Myrmidon’s twenty
guns had a range of more than half a mile and could knock down a ship’s
mast or put a hole in her hull, but Leeke would not likely risk anything
more than a warning shot. If he fired on an innocent vessel, he would be
liable for damages in court. But the other ship might take its chances
and fire on the Myrmidon. Leeke might have to send his men out in the
smaller boats that the Myrmidon carried for just such a purpose. If the
slave vessel resisted, his sailors could fight their way onboard with
pistols and cutlasses.
Worst of all, just as Leeke drew near, the other ship might suddenly
hoist an American flag. The United States had thus far refused to sign a
mutual search treaty with the British, and Leeke was powerless to interfere

[4] The Slave Trade and the Origins of International Human Rights Law
with a slave ship under American colors. The United States had passed
legislation prohibiting the slave trade and declaring it piracy, punishable
by death. But the American laws were enforceable solely by the American
navy, and only a handful of American navy ships were hunting for slavers
in 1822. Any slave captain worth his salt knew about the Americans’ indif-
ference. Even if his ship was actually Spanish, Portuguese, or Dutch, a
smart slave captain was likely to keep a spare American flag and forged
papers just in case the British appeared. The French flag was also a good
cover, for the French had likewise prohibited slave trading but refused to
grant the British permission to search their ships. If Leeke was willing to
run the risk of not only a diplomatic incident but also defending a per-
sonal lawsuit, he might board anyway, hoping that a quick inspection of
the ship’s papers would reveal that the flag was a fraud.
If Leeke were really lucky, the slave ship captain might not be clever
or rich enough to have procured a false flag and papers, and the Span-
ish, Portuguese, or Dutch flag fluttering on the mast would serve as his
invitation to search the ship. Sometimes the exercise would end in
frustration. If no slaves were on board, the ship was not subject to sei-
zure even if things like manacles and water casks in the hold made it
obvious that the intent of the voyage was to pick up slaves. Desperate
slave captains had even been known to throw slaves overboard on the
approach of a British ship, figuring it was better to lose the cargo than
the whole ship.
If Leeke found slaves on board and determined that he had a lawful
basis to detain the ship under one of the treaties (which in 1822 con-
tained many technical details about where and when some slave trading
was still allowed), he would order his men to disarm the slaver’s crew.
The Africans would be released from their chains, and the Myrmidon’s
surgeon would attend to the sick. Leeke would then put one or two of
his young officers and a light crew of seamen onboard the slaver, and
the ship would sail to Freetown, where a highly unusual court awaited
their arrival.

I N T R O D U CT I O N [5]
 In Freetown sat a new international tribunal established to enforce
the treaties prohibiting the slave trade. Most people think of interna-
tional courts as an innovation of the twentieth century, with the Nurem-
berg trials of the Nazi war criminals at the end of World War II being the
first real effort to use international law to prosecute those accused of
gross human rights abuses. But more than a century before Nuremberg,
international courts in Sierra Leone, Cuba, Brazil, and other places
around the Atlantic heard cases related to the slave trade, the original
“crime against humanity.”
Though all but forgotten today, these slave trade courts were the first
international human rights courts. Called the “Mixed Commissions”
because they consisted of judges from different countries, the slave
trade tribunals sat on a permanent, continuing basis, and they applied
international law. The courts explicitly aimed to promote humanitarian
objectives. Though the courts were extremely active for only a few years,
over the treaties’ life span the courts heard more than six hundred cases
and freed almost 80,000 slaves found aboard illegal slave trading ves-
sels. During their peak years of operation, the courts heard cases that
may have involved as many as one out of every five or six ships involved
in the transatlantic slave trade. This book tells the story of these for-
gotten courts, a story that sheds important light on the origins of our
contemporary system of international legal protection for human rights
and also provides insight into issues faced by modern international tri-
bunals like the International Criminal Court.
But back to Captain Leeke. On April 15, 1822, Leeke was cruising
along with his commanding officer, Commodore Sir Robert Mends.
Mends was onboard the squadron’s flagship, the HMS Iphigenia, a
thirty-six-gun frigate somewhat larger than the Myrmidon. Though
Leeke had been at sea since he joined the navy as a thirteen-year-old
in 1803, he was still a young man in one of his first commands.
Mends was an experienced officer who had lost his arm fighting in
the American Revolution.5 They already had in their custody one

[6] The Slave Trade and the Origins of International Human Rights Law
prize, the Portuguese slaver Esperanca Felix, which they had caught
in the River Lagos a week earlier with 187 slaves on board. They had
heard reports of several more ships near the mouth of the River
Bonny, a notorious place for loading slaves.
On that day, Leeke and Mends were in luck. They found several
ships anchored at the Bonny, a large river, navigable for miles inland,
which lies in what is today Nigeria. But to reach the river, a ship had to
cross the shoals of the sandbar formed where the river met the ocean.
The Iphigenia was too large to safely travel through the shallow waters
and rough surf near shore, and the Myrmidon could only cross the
shallow sandbar if conditions were just right. Leeke had taken the Myr-
midon across the bar on a previous occasion, but the wind and tides
would not allow it that day. Instead, Mends and Leeke dispatched some
of their bravest young officers and men in small boats to confront the
suspected slave ships.
The leader of the expedition that day was Lieutenant George William
St. John Mildmay, the third son of a baronet and the senior lieutenant on
the Iphigenia. Mildmay and his boats crossed the bar soon after daylight.
From four miles out, he spotted seven ships lying at anchor—two
schooners, four brigs, and one brigantine. Mildmay hoisted the British
colors so they would know he was not a pirate but an officer of the Royal
Navy. As he approached, the two schooners opened fire without
showing their colors.6
They were Spanish slave ships, and heavily armed. One of the ships,
the Icanam, was a large schooner with “ten guns mounted” and a crew of
forty-six men with “muskets, pistols, swords and ammunition.”7 Her
companion, the Vecua, was similarly equipped. The two ships had sailed
together some months earlier from Havana, Cuba. Their plan was evi-
dently to bulldoze their way through any opposition. Their owners had
assumed that two large ships “so formidably manned and armed” and
with such “determined and desperate spirit” could fight off any at-
tackers, whether pirates or naval vessels.8

I N T R O D U CT I O N [7]
 The other vessels at anchor nearby were flying French colors, but three
of them joined in the fight. Mildmay’s boats advanced, the men rowing
“under a heavy fire of round grape and musketry” and “in about 20 min-
utes from the commencement succeeded in boarding and taking posses-
sion of the whole of them.”9 Two of the British sailors were killed and five
were wounded. Mildmay would be promoted for his valor in the raid.10
The ships held more than a thousand slaves: 300 onboard the Vecua,
380 on the Icanam, 343 on the French brig Vigilante, 218 on the French
brig Petite Betsy, and 247 on the French brigantine L’Ursule.11 The last,
another French brig, had no slaves onboard yet, though it was obvious
it was planning to load some soon.
As the defeated Spanish crew fled the Vecua, they left behind a sur-
prise for the British. A lighted fuse was hanging over the open magazine
hatch where barrels of gunpowder were stored. “[W]hen no hope
remained of their preventing her falling into our hands, merely to gratify
a diabolical feeling of revenge for their defeat, [the Spanish crew] would
have blown up 300 poor fellows ironed in the hold,” Mildmay related.12
One of the British sailors spotted the match and managed to extinguish
it just in time.
Because there was no treaty between Britain and France for enforce-
ment of the ban on slave trading, the British had no jurisdiction over
the French ships based on their slave dealing. But the British boats had
clearly displayed their colors and were obviously exercising a right of
legal search. Firing on the approaching British boats was arguably an
act of piracy. Mildmay let one of the French ships go with a warning,
since that ship had held its fire.13 But he determined that the other
three French ships should be taken to the British vice-admiralty court
in Freetown, Sierra Leone, to face piracy charges.14 Pursuant to the
treaty with Spain, the Spanish ships would go before the Court of
Mixed Commission.
The ships began the arduous journey to Freetown. The prevailing
winds were hostile, and it could take two months to sail north from the

[8] The Slave Trade and the Origins of International Human Rights Law
River Bonny to Sierra Leone. Already, a number of the Africans were
sick, and the illness seemed likely to spread throughout the crew. Leekes
soon realized that the Esperanca Felix, a “dull sailing vessel,” was not re-
ally seaworthy.15 The voyage to Freetown was long and hazardous
enough as it was, and with the Felix limping along, it would take so long
that the health and safety of everyone onboard all the ships would be
endangered. Leeke ordered that the slaves be taken off the Esperanca
Felix and distributed among the other already overcrowded ships, in-
cluding his own.16 He then ordered his men to destroy the Felix;
although the ship was a pathetic wreck, a slave trader who found it
abandoned might be desperate (or greedy) enough to try to load it with
another cargo. The remaining ships began making their way to Free-
town. Along the way, they encountered a fierce tropical storm—a “tor-
nado” in the words of their reports. The Icanam sank, and hundreds of
Africans and more than a dozen British sailors onboard drowned. Only
a handful of men from the Icanam survived to be rescued by the Myrmi-
don some days later “in a state of derangement, from want of food.”17
The cases of the Vecua and Icanam were decided by the international
Mixed Commission court in July 1822. The court had little difficulty in
finding the ships guilty of trading in violation of the treaties between
England and Spain. Of course, the Icanam had been lost along the way,
but the Vecua was sold by order of the court and the surviving Africans
were freed. As for the French ships which had fired on the British boats,
as best the records reveal, one ship was released by the British vice-
admiralty court in Sierra Leone, while the others were sent back to Eng-
land and from there on to France, where they were condemned by a
French tribunal at Nantes.18
The Mixed Commission court in Sierra Leone also decided the case
of the ship Esperanca Felix, the other ship that the Myrmidon and Iphige-
nia had captured on that cruise, which had been scuttled on the journey.
The Portuguese crew of the Esperanca Felix tried to excuse their con-
duct by claiming that they had a royal passport allowing them to trade

I N T R O D U CT I O N [9]
slaves south of the equator, where the treaty between Britain and Portu-
gal still permitted such dealing as part of a gradual plan for extinguish-
ing the trade. They claimed that adverse currents and winds had forced
them north of the equator, where the slave trade was illegal. After ques-
tioning the ship’s master about the wind and currents, the court decided
(in the condescending language of that racist era) to question “the most
intelligent of the Negroes.”19 These individuals testified that they had
been loaded onboard the ship at Lagos (in what is now Nigeria, well
north of the equator) and “had been put on board so short a time before
the capture, that they had not eaten onboard.”20 The court believed the
Africans’ testimony and granted them their freedom.
Between disease and the sinking of the Icanam, only 85 of the origi-
nal 187 Africans from the Esperanca Felix made it alive to Freetown.21
One of the Africans from the Esperanca Felix who arrived safely in Free-
town onboard the Myrmidon was a young boy named Adjai, who viv-
idly remembered his voyage on the Myrmidon some decades later. In
many ways, Adjai’s story was typical of the thousands of individuals
from western Africa who found themselves on slave ships. Adjai was
born the son of a weaver in a large town of some 3,000 inhabitants in
what is now Nigeria. When Adjai was just thirteen years old, warring
factions raided his village. As he recalled many years later, the morning
he was taken as a slave was paradoxically “one of the most lovely and
pleasant I had ever witnessed.”22 Around nine in the morning, “as we
were preparing breakfast, an alarm was made that the enemy were
approaching.”23 Adjai’s father disappeared into the crowd after warning
his family to flee, and Adjai never saw him again. In less than half an
hour, the town was completely surrounded by an army from the rival
tribe. As the soldiers swept through the town, they set the houses on
fire, though, Adjai recalled, “There was not much slaughter as the aim
was to capture as many as they could.”24 As Adjai fled with his mother,
two sisters, and a cousin, they were seized by two of the invaders, who
threw nooses around their necks and took them prisoner. They were led

[ 10 ] The Slave Trade and the Origins of International Human Rights Law
out of the town with thousands of other captives, and in the crowd
Adjai had his last view of his grandmother. They marched some twenty
miles to a larger town, which they reached late at night. In the morning,
the soldiers divided the prisoners. Adjai’s mother and nine-month-old
sister were sent in one direction, while Adjai and his other sister were
sent in another. “The anguish of mind felt at this separation can not
easily be described,” Adjai would write many years later.25 Soon he was
separated from his other sister as well, and he thought of suicide. Adjai
changed hands several times before being sold to Portuguese slave
dealers, the first white men he had ever seen.
By then some months had passed. Around seven in the evening on a
fine April day, they were loaded from canoes onto a large slave ship, the
Esperanca Felix. But that very day, as Adjai recalled, the ship “was sur-
prised by two men of war, the ‘Ephigenia’ [sic], Captain Sir R. Mends
and the ‘Myrmidon,’ Captain Leeke.”26 Adjai and the other African pris-
oners were initially afraid of the British, whom the Portuguese had
called sea robbers. But the British put the Portuguese in irons and
released the Africans. Adjai and his companions had not been fed since
being loaded on the slave ship, and “as hunger rendered [them] bold,”
Adjai and his companions came onto the deck and were given break-
fast.27 After breakfast, the Africans were divided among the ships and,
Adjai recounted, “We six boys had the luck of being taken into the ‘Myr-
midon,’ where we were very kindly treated.”28
Adjai was one of the eighty-five Africans granted certificates of free-
dom upon the condemnation of the Esperanca Felix. Most of the more
than 80,000 persons freed by the Mixed Commission faded into obscu-
rity, leaving little trace. Not Adjai. Living in the British settlement at Si-
erra Leone, he was baptized by a missionary and took the name Samuel
Crowther. He began going to school in Freetown, eventually attending
Fourah Bay College, the first university in Africa. Later, he traveled to
England to complete his education. A devout convert to Christianity,
Crowther became a missionary himself. He translated the Bible and

I N T R O D U CT I O N [ 11 ]
several other books into his native language. But that is not the end of
his story, nor of Captain Leeke’s.
Captain Leeke and Samuel Adjai Crowther met again decades later,
on June 24, 1864. On that morning an enormous crowd gathered in
Canterbury, England, at the famous cathedral. As one newspaper
reported, “The ancient city presented a very animated appearance, as
not only did a very large number of the inhabitants and visitors from the
immediate neighborhood evince great anxiety to witness the proceed-
ings, but a special train on the London, Chatham, and Dover line
brought many from the metropolis.”29 By half past eleven, every corner
of the cathedral was filled. Three new bishops were to be ordained that
day. One of them was Samuel Adjai Crowther, who became the first
African bishop in the Anglican Church and the first Bishop of Niger.30
Captain Leeke, by then an elderly man, was a guest at the ordination,
and when he died his obituary would note that he had saved Crowther
and some 3,000 others from slavery during his service on the African
coast.31 Crowther frequently spoke of Leeke’s role in his rescue, even
after Leeke had passed away.32
In another world, the little boy Adjai would have stayed onboard the
Esperanca Felix until that ship landed in Brazil or Cuba. He would have
been sold in a slave market and taken to a plantation for backbreaking
labor and early death. But providence, Captain Leeke, and international
law had changed his fate.

In the year 1800, slavery was normal. European countries used interna-
tional law to authorize and justify the ownership of human beings. In
the first decade of the nineteenth century, an estimated 609,000 slaves
arrived in the New World. Within a relatively short time span, however,
things began to change. In 1807, Britain became the first major sea-
faring country, followed shortly by the United States, to ban its subjects
from participation in the slave trade. By the early 1840s, more than
twenty nations—including all the Atlantic maritime powers—had

[ 12 ] The Slave Trade and the Origins of International Human Rights Law
signed international treaties committing to the abolition of the trade. By
the late 1860s, only a few hundred slaves per year were illegally trans-
ported across the Atlantic. And by 1900, slavery itself had been out-
lawed in every country in the Western Hemisphere.
The abolition of the slave trade has received a great deal of attention
from historians, but much less so from international lawyers. Yet the
abolition of the transatlantic slave trade remains the most successful
episode ever in the history of international human rights law. Slavery
and the slave trade are among the few universally acknowledged crimes
under international law. Though powerful countries today defend
torture—another practice placed strictly off limits by international
law—no nation today officially defends slavery. To be sure, modern
forms of forced labor remain a significant human rights issue affecting
millions of people, but the type of widespread, legalized chattel slavery
that was commonplace in the nineteenth century has disappeared.
How did such a dramatic shift occur in disparate societies around the
world in less than a century? Changes in the world economy in the
nineteenth century certainly created the conditions that made the abo-
lition of slavery more feasible. But the best historical evidence suggests
that slavery did not die an accidental death of abandonment in the face
of competition from industrial capitalism. Slavery was eradicated, in-
tentionally, by people who had come to believe it was morally wrong. It
was eradicated in part by military force, but also by coordinated interna-
tional legal action—including, surprisingly, international courts.
The history of the suppression of the transatlantic slave trade has im-
plications for a number of contemporary debates about international
law. Most legal scholars view international courts and international
human rights law largely as post–World War II phenomena. But in fact,
the nineteenth-century slavery abolition movement was the first suc-
cessful international human rights campaign, and international treaties
and courts were its central features. Indeed, even the phrase “crimes
against humanity”—which came to modern fame based on its use at the

I N T R O D U CT I O N [ 13 ]
Nuremberg trials of Nazi war criminals—was used in the nineteenth
century to describe the slave trade.
The abolition of the slave trade lies at a critical juncture in the history
of international law and exemplifies a series of dichotomies and ten-
sions that continue to play out even today, tensions between concepts
of natural and universal law and law based solely on the positive enact-
ments of a particular sovereign state; between religious and secular
ideas of law and society; between European and non-European soci-
eties and cultures; between written treaties and unwritten customary
law as the most important source of international legal norms; between
national and territorial conceptions of jurisdiction and supranational or
even universal jurisdiction. Thoroughly understanding how these ten-
sions developed and were resolved (or left unresolved) in the context of
the abolition of the transatlantic slave trade can help us better under-
stand the jurisprudential foundations of modern international human
rights law.
Moreover, this episode in the history of international law reveals a
more complex interrelationship between state power, moral ideas, and
domestic and international legal institutions than many contemporary
theories of international law and relations acknowledge. Great Britain,
the main instigator of the antislavery treaties, no doubt would not have
campaigned so strongly for abolition if it had been truly devastating to
its economic and political interests. Yet substantial evidence shows that
Britain’s abolition policy was motivated by genuine humanitarian con-
cerns and that the policy inflicted significant economic costs on its
empire. Of equal significance, Britain used international law as one
important tool for persuading other countries to abandon a widespread
and profitable practice. Britain was the nineteenth century’s greatest
naval power, and its initial efforts to suppress the slave trade were mili-
tary and unilateral, involving seizures of slave vessels by the British navy
and condemnation of those ships in British courts. Over time, however,
Britain found it could not rely on its military power alone but instead

[ 14 ] The Slave Trade and the Origins of International Human Rights Law
had to utilize that power in conjunction with cooperative legal action to
achieve its goals. Over several decades, Britain convinced one country
after another to ratify increasingly powerful treaties against the slave
trade. At the same time, these international legal mechanisms would
have been ineffective without Britain’s military and economic power. At
critical moments, Britain was forced to deploy its “hard” powers, as well
as its domestic laws and courts, to bring reluctant treaty partners back
into the legal fold. In short, neither raw coercive power nor interna-
tional law alone was enough to achieve the abolition of the slave trade.
Both were necessary.
Each time and place in history is different, of course, and yet the use
of international law to suppress the transatlantic slave trade in the nine-
teenth century is evocative of contemporary problems in international
relations, including efforts to foster democracy and human rights both
through the use of force and through legal institutions, including inter-
national and domestic courts. The antislavery movement’s use of inter-
national law and legal institutions as part of a broader social, political,
and military strategy can help us better understand the potential role of
international law today in bringing about improvements in human
rights. In more theoretical terms, the history of the antislavery courts
suggests a need for a thicker, more robust account of the relationship
between power, ideas, and international law. In short, the forgotten bit
of history recounted in this book should change the way we think about
international courts and international human rights law—their origins,
limits, and potential.

I N T R O D U CT I O N [ 15 ]
CHAPTER 2

Britain and the Slave Trade

The Rise of Abolitionism

S
lavery has existed since ancient times, and for centuries it was
considered morally and legally acceptable for some human be-
ings to own other human beings. Slavery took a particularly per-
nicious form in the Atlantic world between the sixteenth and nineteenth
centuries. Millions of inhabitants of western Africa were carried across
the Atlantic to plantations in North and South America. International
law was surprisingly central to this enterprise. At the beginning of this
period, international law was used to justify the slave trade; by the end,
international law was used to suppress it. How did this transformation
occur?
The indisputable star of the international abolition movement was
Great Britain, and so it is there that our story begins. British merchants
were early and enthusiastic participants in the slave trade, second only to
the Portuguese in volume of slaves shipped. To the extent that average
Britons thought of the slave trade at all in 1700, they thought mostly of
the riches it brought, both directly and through the fruitful plantations
run by slave labor in British colonies. But by the late eighteenth century,
attitudes toward the slave trade in Britain began to change. Though
disagreeing on many details, historians now largely concur that British
abolitionism arose out of a confluence of factors, including economic
changes, Enlightenment philosophy, and religious revival movements.1
Regardless of its precise origins, the abolition movement indisputably
became an important force in British politics in the late eighteenth and
early nineteenth centuries.
On both sides of the Atlantic, opponents of the slave trade conceptu-
alized the issue in terms of human rights, and spoke as well of a religious
and moral obligation to end the practice. Upon introduction of an early
and unsuccessful bill to ban the slave trade in 1776, one member of the
British Parliament argued that the “[s]lave-trade was contrary to the laws
of God, and the rights of men.”2 Speaking in support of legislation to ban
the slave trade in 1806, Lord Grenville likewise characterized slavery as
contrary to the “rights of nature” whereby “every human being is entitled
to the fruit of his own labour.”3 President Thomas Jefferson’s message to
the U.S. Congress in 1806 supported legislation against the slave trade
because it would “withdraw the citizens of the United States from all fur-
ther participation in those violations of human rights which have been
so long continued on the unoffending inhabitants of Africa.”4
Arguments against slavery and the slave trade were deeply intertwined
with ideas of natural law and natural rights.5 Aristotle famously argued
that slavery was part of the natural and right order of the world: “from
the hour of their birth, some are marked out for subjection, others for
rule.”6 But he also noted that “[o]thers affirm that the rule of a master
over slaves is contrary to nature, and that the distinction between slave
and freeman exists by law only, and not by nature; and being an interfer-
ence with nature is therefore unjust.”7
By Roman times, slavery was governed by the body of law known as
the ius gentium, the predecessor of the “law of nations” (which in turn is
the predecessor of modern international law). This was because slaves
were typically foreigners who had been captured in war. The ius gentium
was considered related to, and in large part based upon, the ius naturale,

B R I TA I N A N D T H E S L AV E T R A D E [ 17 ]
or natural law.8 Slavery was often given by Roman jurists as an example
of one of the few instances in which the ius naturale and the ius gentium
diverged, with slavery being inconsistent with natural law but recognized
by the law of nations, a view that was reflected in the influential codifica-
tion of Roman law by Justinian (483–565 a.d.).9
The idea that the law of nations allowed prisoners of war to be
enslaved was largely accepted among European writers for the next sev-
eral centuries. For example, Hugo Grotius (1583–1645), the seven-
teenth-century Dutch theorist viewed by many as the grandfather of
modern international law, considered slavery to be consistent with both
natural law and the law of nations. Grotius argued that slavery was an
“inducement to captors to refrain from the cruel rigour of putting pris-
oners to death.”10 A slave, in his words, was one who “might have been
put to death, but from motives or interest or humanity had been saved.”11
Grotius noted that, by custom, Christian powers did not generally
enslave other Christians: “It has long been a maxim, universally received
among the powers of Christendom, that prisoners of war cannot be
made slaves.” He described this as a tradition based on common reli-
gion and praiseworthy as based on a “law of charity.”12 But he did not in
any terms condemn the practice of enslaving non-Christians.
As the Enlightenment progressed, however, philosophers began to
argue in increasingly strenuous terms that slavery violated natural law.
Writing several decades after Grotius, the English philosopher John
Locke (1632–1704) argued that man had natural, inalienable rights that
preexisted the nation-state and that could be the basis for dissolving it.
Among the rights Locke recognized was a man’s entitlement to the fruits
of his own labor. Locke was critical of slavery, asserting, “Slavery is so
vile and miserable an Estate of man, and so directly opposite to the
generous Temper and Courage of our Nation; that ’tis hardly to be con-
ceived, that an Englishman, much less a Gentleman, should plead for’t.”13
But Locke still believed that slavery might be an acceptable accommoda-
tion in a situation where a man might justly be killed.14

[ 18 ] The Slave Trade and the Origins of International Human Rights Law
 By the eighteenth century, the murmuring of philosophical voices
against slavery was increasing. Montesquieu (1689–1755) argued that
“[t]he state of slavery is in its own nature bad,”15 though he went on to
qualify this judgment at least as to certain circumstances. As to the en-
slavement of Africans, he noted sarcastically, “It is impossible for us to
suppose these creatures to be men, because, allowing them to be men, a
suspicion would follow that we ourselves are not Christians.”16 Jean-
Jacques Rousseau (1712–1778) weighed in more decisively against slav-
ery. Rousseau rejected the assertion of Grotius and others that individuals
could voluntarily submit themselves to slavery.17 “To renounce one’s lib-
erty,” he suggested, “is to renounce one’s humanity, the rights of hu-
manity and even its duties.”18 Rousseau likewise rejected the supposed
origin of slavery in warfare and the sparing of prisoners whom one might
kill, stating that “this supposed right to kill the vanquished in no way
results from the state of war.”19 In short, he argued, “the right of slavery is
invalid, not only because it is illegitimate but also because it is absurd
and meaningless. These words, slavery and right, are contradictory; they
are mutually exclusive.”20
But while the philosophers argued that slavery violated natural law
and natural rights, the law of nations still allowed both slavery and the
slave trade. Emerich de Vattel (1714–1767), the mostly widely read
writer on the law of nations among the founding generation of the United
States, was ambivalent toward slavery, though he described it as a “dis-
grace to humanity.”21 He nevertheless agreed with Grotius and other ear-
lier writers that it was lawful to make prisoners of war into slaves “in cases
which give a right to kill them, when they have rendered themselves
personally guilty of some crime deserving of death,” but not in other
cases.22 But Vattel acknowledged a tension between the institution of
slavery and his views of natural law: “If I spare his life, and condemn him
to a state so contrary to the nature of man, I still continue with him the
state of war” and “[h]e lies under no obligation to me: for, what is life
without freedom?”23

B R I TA I N A N D T H E S L AV E T R A D E [ 19 ]
 While slavery and the slave trade were still tolerated by the law of
nations in the late eighteenth century, lawyers had begun to argue that
slavery was contrary to the law of England. In the first edition of his influ-
ential Commentaries on the Laws of England in 1765, William Blackstone
(1723–80) suggested that “a slave or negro, the moment he lands in Eng-
land, falls under the protection of the laws and with regard to all natural
rights becomes eo instanti a freeman,” though he backtracked slightly in
the 1769 edition of his treatise.24
In 1772, in the landmark case of Somerset v. Stewart, a British court
held that slavery would not be legally recognized within Britain itself.25
James Somerset, a slave from Virginia, had been brought to England by
his master, Charles Stewart, who intended ultimately to return with
Somerset to America. Once in England, however, Somerset’s situation
came to the attention of abolitionists, who helped him file a petition for
habeas corpus seeking his release.26 The arguments in the case were
wide ranging and eloquent. Somerset’s attorneys discussed the history
of slavery, the writings of Aristotle, philosophers including Grotius,
Pufendorf, Montesquieu, and Locke, and various English precedents
establishing customary rights of liberty. The core of their argument was
that slavery was contrary to natural law and to the laws of England, and
that the court should grant Somerset his freedom. Their arguments
were framed in the language of inalienable human rights. Slavery could
not arise from contract, for a man could not consent to “dispose of all
the rights vested by nature and society in him and his descendants”
without “ceasing to be a man; for these rights immediately flow from,
and are essential to, his condition as such; they cannot be taken from
him.”27 Nor was slavery justified by capture in war; if a soldier had a duty
to spare the enemy in battle by taking him prisoner rather than killing
him whenever it was feasible to do so, he also had a duty to restore the
prisoner to liberty as soon as possible.
Stewart’s attorneys, for their part, argued that under the rules of con-
flict of laws (the body of law governing legal disputes that transcended

[ 20 ] The Slave Trade and the Origins of International Human Rights Law
territorial boundaries from one jurisdiction to another), Somerset’s legal
status as a slave should follow him to England. These lawyers also argued
that it would be impractically idealistic to find in Somerset’s favor, sug-
gesting that a decision in favor of his freedom would result in the libera-
tion of some 14,000 slaves in England valued by their owners at hundreds
of thousands of pounds.
The judge assigned to the case, Lord Mansfield, suggested that the
parties settle the case out of court, but they would not. When forced to a
decision, the judge said he would not be ruled by “compassion” on the
one hand or “inconvenience” on the other but rather by the law. The law,
he concluded, favored freedom. The opinion stated that slavery was “so
odious” and contrary to natural law that it could only be justified by
“positive law.”28 While slavery was recognized in other territories, the law
of England itself did not allow or approve of it. Thus, despite the practical
“inconvenience” that might follow from the decision, the court ordered
Somerset’s release.29
Having succeeded in establishing that any slave who touched British
soil would be free, the abolitionists next focused their efforts on banning
the transport of slaves from Africa to the New World. The immediate
abolition of slavery was deemed politically infeasible because it was too
vital to the economies of the West Indian colonies. The slave trade was a
somewhat easier target, although it was lucrative for the British mer-
chants who participated in it and a vital source of new slaves for British
colonies. For one thing, the slave trade was viewed as the cruelest part of
the system. Accounts by sailors and freed slaves of the horrors of the
Middle Passage were widely circulated in Britain. Abolitionists also
argued that cutting off the supply of fresh slaves would induce owners
to treat their existing slaves better and thus reduce horrific mortality
rates on plantations; better treatment of slaves, they argued, might even
improve productivity.
Abolitionist leaders succeeded in putting the abolition of the slave
trade on the political agenda in the late 1780s and early 1790s. Under the

B R I TA I N A N D T H E S L AV E T R A D E [ 21 ]
leadership of William Wilberforce, a bill for the abolition of the trade
passed the House of Commons in 1792 but was blocked in the House of
Lords.30 After this initial progress, however, almost a decade followed in
which the movement made little headway. The French Revolution had
provoked fear in Britain’s ruling classes and led to a crackdown on politi-
cal agitation; the public meetings and petition campaigns that had pro-
pelled abolition onto the parliamentary agenda came to a halt.31 Though
Wilberforce continued to introduce antislavery legislation each year, it
received little attention, and other matters, such as the war with France,
dominated Britain’s political agenda.
In the spring of 1806, the abolitionists finally changed tactics and used
the renewed war with France to their advantage. The crucial first step was
the passage of the Foreign Slave Trade Act,32 which prohibited British
subjects from participating in the slave trade with the current or former
colonies and possessions of France and its allies.33 Framed as a national
security measure rather than a humanitarian one, the act easily passed the
House of Commons. Proslavery forces realized the potential importance
of the measure by the time it reached the House of Lords, and submitted
a petition opposing the act with more than 400 signatures from the key
trading center of Manchester. The abolition forces responded within
hours with a counterpetition from Manchester bearing more than 2,300
signatures.34 The House of Lords quickly agreed to the act.35
Having gained this wedge, the abolitionists promptly renewed their
efforts to achieve a broader ban. Conditions were favorable in more ways
than one. First, the petition campaign in support of the Foreign Slave
Trade Act had shown that popular support for abolition was both wide-
spread and deep, even in regions where trading interests were strong.
Although British voting rights would not be expanded beyond a limited
segment of the population for another twenty-five years, strong popular
sentiment influenced politics.
The slave trade became an issue in key parliamentary elections in the
fall of 1806.36 By that time, two changes since the 1790s had reduced the

[ 22 ] The Slave Trade and the Origins of International Human Rights Law
perceived threat of foreign competition with British commercial inter-
ests in the West Indies: first, the war with France had reduced French
power in the West Indies and on the high seas; and second, a Haitian
slave revolt had led to the independence of France’s most productive
sugar colony. And so it happened that, in early 1807, both houses of Par-
liament finally passed the Act for the Abolition of the Slave Trade.37 As of
May 1, 1807, the law completely prohibited participation in the slave
trade by British subjects and the importation of slaves to British posses-
sions. The British navy began to enforce the ban, and the slave trade
under the British flag rapidly decreased.38
Following passage of the 1807 act, it quickly became clear that it
would be in Britain’s interest to encourage the suppression of slave
trading by other countries as well. If other nations continued to tolerate
the trade, the only effect of Britain’s ban would be to shift the trade from
British-flagged ships to the ships of other nations. In addition, the Carib-
bean colonies of other nations would continue to receive infusions of
new slaves, putting British possessions that could not receive such rein-
forcements at an economic disadvantage. Thus, the British West Indian
planters, who had been the strongest opponents of the 1807 act, quickly
became supporters of British efforts to stamp out the slave trade carried
out by other nations.
At the time, other countries showed little interest in implementing an
effective ban on the trade. Denmark was the first European power to pass
legislation against the slave trade in 1792 (with the ban to take effect in
1803), but Denmark was not a particularly powerful country. Though
there had been abolition movements in France and the United States,
abolitionists were not sufficiently influential in domestic politics in
either of those countries in 1807 to force their governments to devote
significant resources to the suppression of the slave trade, particularly on
the high seas. Like Britain, France initially drew a distinction between
slavery in its colonies and slavery on French soil. Long before the much-
celebrated decision by the British court in Somerset, French admiralty

B R I TA I N A N D T H E S L AV E T R A D E [ 23 ]
courts had granted numerous petitions for freedom on behalf of slaves
who had been brought within the French mainland.39 In 1794, the revo-
lutionary government in France abolished the slave trade as well as slav-
ery in its colonies.40 This abolition effort was short lived, however, for the
trade was never effectively suppressed, and Napoleon reauthorized slav-
ery in French colonies in 1803.41
The United States had prohibited the outfitting of slave ships in
American ports in 1794 and enacted legislation completely banning
the slave trade under the American flag and into American ports in
March 1807.42 That legislation took effect in 1808, the earliest date
allowed by the Constitution.43 Within a decade, the United States had
effectively suppressed slave imports into its own territory.44 But in the
face of sectional divisions between North and South, the United States
devoted few resources to enforcing the ban against U.S.-flagged ships
on the high seas.45
Abolitionist movements had even less power in Spain and Portugal,
the other major maritime powers with significant plantation colonies in
the New World.46 Both of those countries permitted the trade to con-
tinue unrestricted under their flags, and the slave trade from Africa to
Cuba and Brazil flourished.
Initially Britain resorted to unilateral military action to suppress the
slave trade. The 1807 Abolition Act was enacted during the Napoleonic
Wars, during which Britain claimed the right under the law of nations to
search ships on the high seas to determine whether they were enemy
ships or, if neutral ships, whether they were violating principles of neu-
trality by, for example, carrying contraband for the enemy or running a
blockade. Although the primary efforts of the British navy were in pursu-
ance of the war effort, Britain also began using this right of search derived
from international law as a method to suppress the slave trade. Ships
found carrying cargoes of slaves were brought into British vice-admiralty
courts around the Atlantic for condemnation as prizes under the law
of nations.47

[ 24 ] The Slave Trade and the Origins of International Human Rights Law
 The British courts first addressed this issue in the case of the Amedie.48
While sailing under the flag of the United States from Africa to Cuba
with a cargo of 105 slaves, the Amedie was captured by a British warship
in 1808. Though the United States was neutral in the war at that time, its
ships were arguably subject to search under the law of nations to ensure
that they were not violating neutrality. The British vice-admiralty court
in Tortola condemned the ship as a lawful prize, and the court in Lon-
don affirmed that decision on appeal. The court observed that the Brit-
ish Parliament had clearly “declared the African slave trade . . . contrary
to principles of justice and humanity.”49 While noting that the United
States had also banned the trade as a matter of domestic law, the court
acknowledged that the positive law of nations, either by treaty or cus-
tom, did not completely ban the slave trade:

we cannot legislate for other countries; nor has this country a right to con-
troul any foreign legislature that may think proper to dissent from this
doctrine and give permission to its subjects to prosecute this trade. We
cannot, certainly, compel the subjects of other nations to observe any
other than the first and generally received principles of universal law.50

Using the same natural law reasoning as the court in Somerset, however,
the court concluded that it was entitled to presume the slave trade un-
lawful unless some positive law authorized it. Having found the trade
presumptively illegal, the court put on the claimant “the whole burden of
proof . . . to shew that by the particular law of his own country he is enti-
tled to carry on this traffic.”51 Even where the claimant was able to dem-
onstrate domestic legal authority, the court intimated that “persons
engaged in such a trade cannot, upon principles of universal law, have a
right to be heard upon a claim of this nature in any court” and that, in any
event, “no claimant can be heard in an application to a court of prize for
the restoration of the human beings he carried unjustly to another coun-
try for the purpose of disposing of them as slaves.”52 It thus appeared the

B R I TA I N A N D T H E S L AV E T R A D E [ 25 ]
court might be unwilling to return the prisoners on the ship to the slave
dealer’s custody in any circumstances. The court upheld the condemna-
tion of the ship and its cargo;53 the slaves were freed, and the ship itself
was awarded as a prize to its captor, as was customary.54
Throughout the Napoleonic Wars, Britain continued the practice of
seizing foreign slave ships, including American, Spanish, Portuguese,
Dutch, and French vessels.55 Other nations protested Britain’s heavy-
handed search tactics, in relation to both captured slaves and maritime
commerce generally, as exceeding permissible bounds under the law of
nations.56 Indeed, British search and seizure of American ships, though
not specifically slave ships, was one of the main bones of contention that
led to the War of 1812.57 But Britain persisted in these unilateral seizures
through the end of the wars. As table 2.1 shows, Britain captured a sub-
stantial number of foreign slave ships during this period.58
In one sense, the end of the Napoleonic Wars in 1814–15 was a pecu-
liar time for Britain to change the direction of its antislavery policies.
After all, Britain won the war and, more than that, had established itself as
the dominant maritime power. But with the end of hostilities, Britain’s

Table 2.1. SLAVE TRADE CASES IN BRITISH VICE-ADMIRALTY COURTS

DURING THE NAPOLEONIC WARS
YEAR NUMBER OF CASES TRIED IN % OF KNOWN VOYAGES TRIED IN
BRITISH ADMIRALTY COURTS BRITISH ADMIRALTY COURTS
1806 4 1
1807 8 2
1808 7 6
1809 5 5
1810 29 15
1811 27 15
1812 26 15
1813 10 7
1814 17 11
1815 33 18
1816 29 12
1817 9 4

[ 26 ] The Slave Trade and the Origins of International Human Rights Law
unilateral actions became more suspect. The right to search foreign-
flagged vessels was linked under the law of nations to a state of warfare,
and its scope was controversial even in that context. It was clear that there
was no general right of peacetime search, aside from cases of piracy.
Although the British courts would not begin to invalidate the peacetime
search and seizure of foreign-flagged slaving vessels until 1817, the writing
was already on the wall. There was no legal basis under international law
for Britain to continue to search and detain other nations’ ships. Con-
tinuing to do so would provoke outrage and retaliation by other coun-
tries, many of which had already insinuated that Britain was not interested
in the slave trade at all, but was simply using the humanitarian cause as a
cover for its self-interested efforts to dominate maritime commerce.59
In July 1816, the British government acknowledged that under in-
ternational law the peacetime searches were illegal, and the following
year British courts began invalidating seizures of slave ships starting
with the case of Le Louis, issued on December 15, 1817.60 Le Louis
involved a French vessel seized in 1816 and condemned by the British
vice-admiralty court at Sierra Leone. The condemnation was reversed
on appeal in an opinion authored by Sir William Scott.61 The court
found that Britain had no legal authority to search the ship on the high
seas.62 Noting that the customary law of nations provided no general-
ized right to search in peacetime, the court concluded that, in the
absence of a specific treaty between the countries, Britain could not
lawfully search or seize a French ship unless it suspected piracy. The
court found, first, that the slave trade was not piracy under the general
law of nations, and therefore no peacetime right of search attached on
that basis. Second, the court held that the 1815 treaty in which France
had agreed to ban the slave trade was not sufficient to confer a right of
peacetime search. Thus, there was no legal basis for the search and sei-
zure.63 Gone was the rhetoric about slavery being contrary to natural
law and the demand for proof of positive law that allowed such an ab-
horrent institution. In its place was an emphasis on the formalities of

B R I TA I N A N D T H E S L AV E T R A D E [ 27 ]
state sovereignty and the need for positive law to justify interference
with another nation’s affairs. It was clear that if Britain wanted to sup-
press the slave trade, it would need to persuade other countries to
commit to the project and to enter into treaties that would give legal
legitimacy to its actions.
The end of the Napoleonic Wars not only made it something of a ne-
cessity for Britain to address the slave trade issue on a multilateral basis;
it also presented an opportunity for the British government to make the
issue a bargaining chip in the series of diplomatic negotiations and re-
alignments that inevitably followed the war. In the years after the Napo-
leonic Wars, Britain successfully negotiated for clauses related to the
slave trade in a number of multilateral and bilateral treaties. Although the
multilateral treaties ultimately included only statements of principle
against the slave trade with no enforcement mechanisms, several of the
bilateral negotiations ultimately resulted in treaties that not only banned
the slave trade but also provided for enforcement of the ban in interna-
tional mixed courts.
The British government faced strong domestic political pressure to
make abolition a central feature of the immediate postwar negotiations.
When the foreign secretary, Viscount Castlereagh, returned from the ini-
tial peace treaty negotiations in France in the summer of 1814, he was
greeted with euphoria and praise for having brought the long war to a
successful conclusion. These accolades, however, were quickly sup-
planted by criticism because he agreed to a provision in the treaty that
allowed France to renew its participation in the slave trade (participa-
tion that had been dampened or eliminated during the war) for five
more years.64 Wilberforce, the leader of the abolition movement in
Parliament, immediately described the treaty provision as the “death-
warrant of a multitude of innocent victims, men, women and children.”65
Lord Canning pointed out that Castlereagh had opposed the 1807 act
abolishing the trade, thereby implying that he had not pursued the issue
with sufficient diligence in the peace negotiations.66

[ 28 ] The Slave Trade and the Origins of International Human Rights Law
 Abolitionist leaders reached out to the public for support. In what may
have been the largest popular petition campaign in Britain’s history, more
than three-quarters of a million people (out of a national population of
approximately 12 million) signed petitions denouncing this provision of
the peace treaty with France.67 Debates over the slavery provision tainted
local victory celebrations around the country with pictures of Africans in
chains being displayed at some festivals.68 In his correspondence, the
Duke of Wellington commented on the “degree of frenzy” in London
about the slave trade, noting, “People in general appear to think that it
would suit the policy of this nation to go to war to put an end to that
abominable traffic.”69 Both the House of Commons and the House of
Lords passed resolutions urging that the slave trade issue be brought up at
the upcoming Congress of Vienna, where the countries involved in the
just-concluded war hoped to transform the initial peace agreement into
an arrangement for long-term stability in Europe.70
Canning’s suspicions about Castlereagh were largely correct:
Castlereagh did not view abolition as a proper element of British for-
eign policy, suggesting in private that it was wrong “to force it upon na-
tions, at the expense of their honour and of the tranquility of the world.
Morals were never well taught by the sword.”71 But stung by the public
outcry, Castlereagh and Prime Minister Liverpool felt compelled to
instruct British negotiators to redouble their efforts to conclude anti-
slavery treaties with France, Spain, and Portugal.72
Castlereagh directed the Duke of Wellington, who had been sent to
Paris, to immediately reopen the issue with the French government.
Wellington was instructed to press for immediate abolition of the slave
trade by the French, as well as rights of reciprocal search on the high seas
to enforce the ban. Recognizing that this proposal would not go over
well with the French government, Castlereagh noted, “To soften the
exercise of this power, perhaps it might be expedient to require the Sen-
tence of Condemnation to be passed in the Courts of Admiralty of the
Country to which the Ship detained belongs.”73

B R I TA I N A N D T H E S L AV E T R A D E [ 29 ]
 The French negotiator rebuffed Wellington’s initial approach,
pointing out that the public sentiment against the trade in France was
not as strong as in Great Britain.74 Castlereagh then sent word to Wel-
lington that he should offer France a material inducement for cooper-
ation on the slavery issue—either a cash payment or an island in the
West Indies.75 This offer, too, was rejected.76
While negotiations with France were momentarily stalled, Britain
proved more successful in its negotiations with the Netherlands, which
in August 1814 formalized by treaty the promise it had made in June
1814 to prohibit the slave trade.77 Negotiations with the United States
ending the War of 1812 also included discussion of the slave trade. The
United States, which had already banned the slave trade by statute,78
was amenable to including a provision on the topic in the peace treaty.
Thus, the Treaty of Ghent, signed between Great Britain and the
United States on December 24, 1814, declared that “the traffic in slaves
is irreconcilable with the principles of humanity and justice,” and both
nations pledged to “use their best endeavours” to abolish the trade,
though the treaty did not include particular mechanisms for enforcing
this promise.79
Throughout the summer and fall of 1814, the British government
tried to obtain similar agreements from Spain and Portugal. Britain’s
emissary in Madrid, Sir Henry Wellesley, initially sent word that he was
not optimistic about obtaining any abolition agreement whatsoever
from the Spanish government.80 Following the British public outcry in
reaction to the French treaty, Wellesley told his Spanish counterpart,
the Duke of San Carlos, that any treaty they might conclude would not
be well received in London unless it included an abolition clause. San
Carlos responded that the continuance of the slave trade was essential
to the viability of Spain’s colonies, and its abolition was inconceivable in
the immediate future. Wellesley only managed to secure a provision
agreeing to limit the traffic under the Spanish flag to Spanish citizens
and to Spanish possessions.81

[ 30 ] The Slave Trade and the Origins of International Human Rights Law
 This concession was unsatisfactory to the government in London,
which faced continuing pressure to show some progress on the issue.
Wellesley thus received instructions to use the cash incentive approach.
He offered the Spanish government a loan of 10 million Spanish dollars
in exchange for the immediate abolition of the slave trade.82 The Span-
ish government, though in serious need of the money, declined the
offer.83 A month later, the Spaniards—perhaps still hoping for the
money—made a counteroffer, suggesting that they would immediately
ban the trade everywhere except in the zone from the equator to ten
degrees north of the equator.84 Anything short of total abolition, how-
ever, remained unacceptable to London.85
Negotiations with Portugal proved more promising. Before the war
had begun, the Portuguese government had grudgingly agreed to a
treaty in 1810 in exchange for British support against the French. That
treaty committed Portugal to the gradual abolition of the slave trade
and, in particular, limited the trade of slaves by Portuguese subjects
to that carried on between Portuguese ports in Africa and Brazil.86
During the war, Portugal had become indignant when Britain had
invoked the treaty as an excuse to unilaterally seize and condemn Por-
tuguese ships in its vice-admiralty courts, and the issue remained an
irritant in Anglo-Portuguese relations at the end of the war. But Por-
tugal was heavily dependent on England for military and financial
support, and, in January 1815, Britain finally succeeded through a
combination of bribery and threats in persuading Portugal to enter
into new treaties restricting the slave trade. In the first of these treaties,
the Convention of January 21, 1815, Britain agreed to pay Portugal
£300,000, ostensibly as compensation for Portuguese ships illegally
condemned by British vice-admiralty courts.87 In a companion treaty,
signed on January 22, 1815, Britain forgave the remainder of a
£600,000 loan made earlier to Portugal, and Portugal agreed to ban
the slave trade north of the equator and to adopt measures necessary
to enforce the ban.88 Although this was progress, it was not a great

B R I TA I N A N D T H E S L AV E T R A D E [ 31 ]
victory since the majority of Portugal’s slave trade was destined for
Brazil, which lies south of the equator.
While pursuing these various bilateral negotiations, Britain was si-
multaneously trying to obtain a multilateral agreement on the slave trade
at the Congress of Vienna, where representatives of all the European
powers had gathered to sort out a wide variety of issues related to the
settlement of the war.89 Beginning in December 1814 and throughout
January and February 1815, the diplomatic representatives meeting in
Vienna intermittently discussed the slave trade.90 While Russia, Austria,
and Prussia were quite supportive of Britain’s proposals related to the
slave trade, none of these countries had significant maritime empires.
France, Portugal, and Spain were as recalcitrant in the multilateral nego-
tiations as they had been separately.
It appears that the idea of an international body aimed at suppression
of the slave trade first emerged during these negotiations at Vienna. And
while no permanent international legal structures were created as a result
of either the Congress of Vienna or the subsequent meetings between
the great European powers, the idea of such structures was very much on
the table. The Russian czar Alexander I had some grandiose ideas about
a permanent international league of like-minded Christian monarchs
that would preserve peace and order in Europe.91 This line of thinking
culminated in the Holy Alliance initially signed between Russia, Prussia,
and Austria in the fall of 1815, and later joined by most of the “crowned
heads” of Europe.92
Britain stayed out of the Holy Alliance—which Castlereagh privately
pronounced “a piece of sublime mysticism and nonsense.”93 But Britain
did spearhead the more limited and less metaphysical November 1815
treaty of Quadruple Alliance, which established a kind of mutual security
and cooperation system for Europe and provided for regular meetings
among the major powers.94 Consistent with the overall discussion at Vienna
of creating stable frameworks for cooperation, Britain firmly supported
the creation of some kind of permanent international commission

[ 32 ] The Slave Trade and the Origins of International Human Rights Law
to deal specifically with the slave trade, although it was not yet clear what
the powers and responsibilities of such a commission would be.95
The effort to address the slave trade issue at the Congress of Vienna
ended on February 8, 1815, with the delegates adopting a nonbinding
declaration that condemned the slave trade but placed no firm time limit
on its abolition:

Having taken into consideration that the commerce, known by the name
of “the Slave Trade” has been considered, by just and enlightened men of
all ages, as repugnant to the principles of humanity and universal mo-
rality;
. . . [T]he Plenipotentiaries . . . proclaim, in the name of their Sover-
eigns, their wish of putting an end to a scourge, which has so long deso-
lated Africa, degraded Europe, and afflicted humanity; . . . Too well
acquainted, however, with the sentiments of their Sovereigns, not to per-
ceive, that however honorable may be their views, they cannot be attained
without due regard to the interests; the habits, and even the prejudices of
their subjects; the said Plenipotentiaries at the same time acknowledge
that this general Declaration cannot prejudge the period that each partic-
ular Power may consider as most advisable for the definitive Abolition of
the Slave Trade.96

In modern international relations terms, this would be classified as soft

law at best, and cheap talk at worst. Soon thereafter, the allies had more
pressing problems to worry about. Napoleon returned with his army
from exile, and the war restarted. Oddly enough, the renewal of the war
proved to be a good thing for the abolitionist cause. In an apparent bid
for English support, Napoleon did what the restored royal government
had refused to do and issued a proclamation completely banning the
slave trade on March 29, 1815.97 Though clever, this was not enough to
win British support. Napoleon met final defeat before Wellington’s army
at Waterloo in June 1815.

B R I TA I N A N D T H E S L AV E T R A D E [ 33 ]
 Napoleon’s return broke the diplomatic impasse with France on the
slave trade issue. On July 30, 1815, Talleyrand informed the British gov-
ernment that Louis XVIII had issued a complete and immediate ban on
the slave trade.98 The final peace treaty, signed in Paris on November 20,
1815, included the ban.99
While the French agreement served to assuage British public opinion
somewhat, it was clear to the British government that a substantive ban
on the slave trade was likely to be ineffective without some provision for
mutual rights of search and seizure.100 British colonial officials in Sierra
Leone (the site of the most active vice-admiralty courts during the Napo-
leonic Wars) responded to an inquiry from Castlereagh about the state of
the slave trade and the most effective means of suppressing it by noting
that such treaty provisions were needed. They also noted that any scheme
for enforcement of the ban was “less liable to objection” if the captured
vessels were to be condemned “either by the Courts of his own Country,
or by a Tribunal to be specially appointed for that purpose.”101
The idea of mixed arbitral commissions to settle disputes between na-
tions had already become an established part of international diplomacy.
The 1794 Jay Treaty between Britain and the United States had ushered
in the modern era of international arbitration by including provisions for
the establishment of an arbitral commission consisting of representa-
tives from each country to settle claims arising out of the American Revo-
lutionary War.102 More recently, the November 1815 peace treaty with
France had included a provision for arbitration of public and private
claims arising out of the Napoleonic Wars.103 The previous arbitration
commissions had all been created to settle past claims; none had pro-
spective jurisdiction over future disputes. But the talk of forward-looking
international cooperation mechanisms at Vienna combined with the
concept of mixed commissions to adjudicate disputes to form the idea
for the antislavery courts.
Continuing negotiations finally bore fruit in 1817 when Britain suc-
cessfully concluded agreements with the Netherlands, Portugal, and

[ 34 ] The Slave Trade and the Origins of International Human Rights Law
Spain that allowed for mutual rights of search and established mixed
courts to try and condemn captured slave ships. The Anglo-Portuguese
Treaty was signed on July 28, 1817, the Anglo-Spanish Treaty on Sep-
tember 23, 1817, and the Anglo-Dutch Treaty on May 4, 1817.104 Unlike
all of the previous, retrospective arbitration commissions, the courts set
up by the new treaties would have prospective jurisdiction, that is, juris-
diction to adjudicate cases that might arise in the indefinite future.
It is not entirely clear what induced these three countries to agree to
this novel scheme, or whether they fully understood just how novel it
was at the time. The Netherlands, which had readily agreed to the treaty
banning the trade in 1814, seemed easily persuaded to take additional
steps to make the paper ban effective in practice. For their part, Spain
and Portugal seemed motivated by financial incentives, though the
amounts they were paid did not come close to compensating them for
the economic losses that would accompany real abolition of the trade.
Britain agreed in the 1817 treaty to pay Spain £400,000,105 ostensi-
bly to settle claims for vessels captured during the years of unilateral
antislavery activity by Britain, as well as to compensate Spain “for the
losses which are a necessary consequence of the abolition of the
said Traffic.”106 Britain had already agreed in the 1815 treaties to pay
Portugal £300,000 in cash and forgive £600,000 in loans. Apparently,
though, Britain had never made good on these earlier promises. In the
1817 Anglo-Portuguese Treaty, Britain agreed to pay the £300,000
owed under the 1815 treaty in two installments along with interest.107
As discussed more fully in chapter 3, the United States resisted joining
the mixed court system until 1862. France never participated.
The scope of each treaty was slightly different. The Spanish treaty
banned the trade throughout the Spanish empire as of May 30, 1820,
with a five-month grace period for vessels that had “cleared out” lawfully
prior to that date.108 Slave trading from ports on the coast of Africa north
of the equator was banned immediately as of the date of ratification, again
with a grace period for the completion of voyages already underway.109

B R I TA I N A N D T H E S L AV E T R A D E [ 35 ]
The Portuguese agreement reiterated the limits in the 1815 treaty, namely
that the prohibition extended only to Portuguese ships trading north of
the equator or to non-Portuguese possessions.110 The Dutch had already
agreed in 1814 to ban the trade completely, and the new treaty simply
created an international enforcement mechanism.
Most significant, these treaties, unlike earlier declarations and treaties,
were not merely cheap talk. They contained robust enforcement mecha-
nisms to carry out the promised ban on the trade. Each of the new treaties
provided for the mutual right of search and seizure of suspected slave
vessels and the vessels’ trial and condemnation before the courts of
mixed commission:

In order to bring to adjudication with the least delay and inconvenience,

the Vessels which may be detained for having been engaged in an illicit
Traffic of Slaves, there shall be established . . . 2 Mixed Commissions,
formed of an equal number of Individuals of the 2 Nations, named for
this purpose by their respective Sovereigns.111

These new courts were empowered to “judge without Appeal, according

to the letter and spirit of the Treaty of this date.”112
In addition, all three treaties were explicitly directed at the slave trade
as an offense against humanity. The opening paragraph of the Anglo-
Spanish treaty, for example, stated, “His Catholic Majesty concurs in the
fullest Manner in the sentiments of His Britannic Majesty, with respect
to the injustice and inhumanity of the Traffic in Slaves.”113 And so in
1817, the world’s first international courts directed at the protection of
human rights were created.
In sum, in the years following the Napoleonic Wars, Britain had
effected a sea change in the status of the slave trade under international
law. Just a few years earlier, the trade had been presumptively lawful
under the law of nations. Now, the most powerful nations in the world
had all agreed in principle to its suppression. Britain had moved beyond

[ 36 ] The Slave Trade and the Origins of International Human Rights Law
unilateral action based on vague conceptions of natural law toward con-
crete, positive treaty obligations and international enforcement mecha-
nisms. Even when, in later years, Britain was sometimes forced to turn
back to unilateral action, it was able to do so with greater legitimacy
because it could point to the international commitments embodied in
these treaties and argue that the treaties justified its actions. Time and
again, British diplomats would remind other nations that they had agreed
by treaty to suppress the slave trade. In one typical letter from 1836, Brit-
ish Foreign Secretary Lord Palmerston implored the Portuguese “to
redeem the honour of Portugal” by fulfilling their promises to suppress
the slave trade.114 Once a nation had agreed that the slave trade was con-
trary to the laws of nature and nations, they could dodge and delay, but
they could no longer defend the trade as lawful or legitimate. It might
take decades for reality to line up with rhetoric, but once the course
toward abolition was charted, it would prove impossible to go back.

B R I TA I N A N D T H E S L AV E T R A D E [ 37 ]
CHAPTER 3

The United States and the Slave Trade

An Ambivalent Foe

F
rom the beginning, slavery and the slave trade were delicate
questions in American politics. Slave imports to North Ameri-
ca had begun in the 1600s and had increased steadily through
the mid-1700s. By the time the Declaration of Independence pro-
claimed in July 1776 that “all men are created equal,” there were hun-
dreds of thousands of African slaves in North America. The slave-owning
revolutionaries may have been hypocritical, but they were not totally
blind to the issue; the tension between slavery and the ideals of liberty
on which the nation was founded was widely acknowledged.1 The first
early steps toward abolition were already being taken, though no one
could have predicted then by what course slavery would eventually be
eliminated or how long it would take. Northern states in which slavery
had been practiced began abolishing it by the 1770s and 1780s. Anti-
slavery societies in the upper South filed suit on behalf of slaves claim-
ing freedom in the courts of Virginia and Maryland and lobbied their
legislatures to pass manumission laws allowing individual owners to
free their slaves.2 The First Continental Congress had even temporarily
banned the import of slaves, though this was primarily a measure aimed
at British shipping interests, and imports resumed (albeit in relatively
small numbers) following the end of the Revolutionary War.3 Under
the Articles of Confederation, Congress also passed the Northwest
Ordinance of 1787 prohibiting slavery in the new territory it created
out of the region north and west of the Ohio River, a measure foreshad-
owing later debates about whether slavery would be allowed in newly
admitted states.
The U.S. Constitution, drafted in Philadelphia in the summer of
1787, is oddly evasive on the issue of slavery, a word that it studiously
avoids. The first hint of the institution appears in Article 1, Section 2,
which provides for the apportionment of representatives and taxes by a
counting of “free persons, including those bound to Service for a term
of years,” excluding “Indians not taxed,” and including “three-fifths of
all other Persons”—that is, slaves were to count as three-fifths of a per-
son.4 The fugitive slave clause refers to “Person[s] held to Service or
Labour in one State” and provides that their escape into another state
should not result in their discharge from service but rather that they
must be returned (which could preclude American courts from fol-
lowing the reasoning of the British court in Somerset, whereby a slave
would be freed upon entering a free state).5 Finally, on the issue of the
slave trade, the constitutional convention compromised by limiting the
power of Congress to prohibit the importation of “such Persons as any
of the States now existing shall think proper to admit” until 1808 (and
prohibiting amendment of this provision until the same year).6 Report-
edly, South Carolina, Georgia, and North Carolina persuaded the con-
vention that this protection for the slave trade was vital for their support
for ratification.7
During this time period, people managed to distinguish between
slavery and the slave trade in moral and legal terms, and even supporters
of slavery were often against the slave trade. Indeed, the constitution of
the Confederate States of America included a provision banning the

T H E U N I T E D S TAT E S A N D T H E S L AV E T R A D E [ 39 ]
slave trade.8 Nevertheless, it was apparent in the United States as in Brit-
ain that the treatment of the slave trade might have some impact on the
institution of slavery. Early abolitionists certainly hoped that ending the
slave trade would help end slavery itself. At the Pennsylvania ratifying
convention on the Constitution, James Wilson suggested that the abo-
lition of the slave trade would lay “the foundation for banishing slavery
out of this country; and though the period is more distant than I could
wish, yet it will produce the same kind, gradual change [for the whole
nation] which was pursued in Pennsylvania.”9
Though the federal government could not constitutionally ban the
importation of slaves until 1808, the states had begun to prohibit the
importation of slaves on their own even by the time of the Constitu-
tional Convention. Indeed, “[b]etween 1776 and the Constitutional
Convention in 1787, ten of the thirteen states banned the importation
of slaves from abroad,” while two others imposed prohibitively high
duties or did not have significant slave imports to begin with.10 In the
late 1780s, the total annual slave imports to the United States were
actually quite small, as shown in figure 3.1. By the early 1790s, aboli-
tion societies began asking Congress for some sort of national legisla-
tion against the slave trade in petitions that denounced the trade as “an

Known Number of Slaves Disembarking in the United States

22,000
20,000
18,000
16,000
14,000
Number

12,000
10,000
8,000
6,000
4,000
2,000
0
1770

1775

1780

1785

1790

1795

1800

1805

1810

1815

1820

1825

1830

Year

Figure 3.1. Number of Slaves Disembarking in the United States

[ 40 ] The Slave Trade and the Origins of International Human Rights Law
outrageous violation of one of the most essential rights of human
nature” and “degrading to the rights of man.”11 In 1794 Congress passed
an act prohibiting the fitting out of slave ships in American ports to
carry on the slave trade “to any foreign country.”12 The statute provided
for the forfeiture of the ship and cargo and also for fines.
Abolitionist societies in New York, Philadelphia, and Providence,
Rhode Island, began collecting information on illegal slave trading voy-
ages and forwarding this information to authorities in hopes that cases
would be brought under the new act.13 One of the first ships condemned
under the 1794 statute was the ironically named Hope.14 The ship had
been commissioned for its slave trading voyage in Rhode Island by John
Brown, a prominent merchant and slave trader from Providence. From
one of the leading families of Rhode Island, Brown was one of the foun-
ders of what would become Brown University. Though this John Brown
was no relation to the famous abolitionist of the same name who led the
raid at Harper’s Ferry in 1859, he was related to Moses Brown, who was
an active Quaker abolitionist and who had been one of the authors of
the 1794 Slave Trade Act. The two brothers spent years debating the
slave trade in person and in letters.
The Hope set sail from Providence, picked up a cargo of captives in
Africa, delivered them into slavery in Cuba, and then returned to Rhode
Island, making no attempt to hide the nature of its voyage or the profits
it had earned. Members of the Providence Abolition Society petitioned
the U.S. attorney for the city to bring an action against John Brown
under the 1794 act, providing affidavits from crew members describing
the voyage. The case came to trial in the U.S. district court in August
1797. The district judge easily found that the 1794 act had been vio-
lated and ordered the ship forfeited.15 Following this favorable outcome,
the abolition society urged a second lawsuit seeking fines under the act.
Unlike the forfeiture action—which was an admiralty action triable by
judge, not jury—the lawsuit seeking to impose a fine on Brown person-
ally was subject to jury trial. In front of a Providence jury sympathetic

T H E U N I T E D S TAT E S A N D T H E S L AV E T R A D E [ 41 ]
to the slave trade and the profits it brought the seaport, Brown prevailed
in this latter action, an outcome that dismayed the abolition society.16
The Supreme Court soon confirmed that there was no jury trial right,
at least in forfeiture actions. In 1805, the Supreme Court held in the
case of the Schooner Sally that forfeiture of a vessel under Congress’s
1794 act against the slave trade fell within admiralty rather than common
law jurisdiction and did not trigger a jury trial right.17 In forfeiture cases,
at least, prosecuting attorneys could avoid the prospect of a jury sympa-
thetic to slave trading merchants, though of course the judges might
prove biased as well.
The 1794 act was strengthened by Congress in an 1800 act that made
it illegal for citizens to have any interest, even indirect, in slave voyages
to foreign countries or to serve on slave ships engaged in the foreign
slave trade in any capacity.18 This statute provided not just for the forfei-
ture of ships but also for criminal sanctions including imprisonment.
The same John Brown whose ship had been condemned under the 1794
act was now a member of Congress from Rhode Island and argued
forcefully against any expansion of the laws against the slave trade.

We want money, we want a navy; we ought therefore to use the means to

obtain it. We ought to go farther than has yet been proposed, and repeal
the bills in question altogether, for why should we see Great Britain get-
ting all the slave trade to themselves; why may not our country be
enriched by that lucrative traffic?19

Brown’s views did not carry the day, and the measure passed the House
by a vote of 67–5.20
In the following years, there were a number of actions in federal court
involving civil forfeitures under these statutes, as well as a few criminal
prosecutions.21 In one criminal prosecution in Maryland in 1803, the
jury convicted the defendant of violating the act by transporting slaves
between two Caribbean ports, but the judge imposed imprisonment of

[ 42 ] The Slave Trade and the Origins of International Human Rights Law
only twenty-four hours upon a finding that the prisoner was ignorant of
having violated any law.22
As the constitutional date on which Congress could prohibit slave
imports into the United States approached, there was a dramatic uptick
in the number of slave imports to North America, perhaps in anticipa-
tion that the trade would soon be prohibited. President Thomas Jefferson’s
message in December 1806 urged total abolition of the slave trade at
the soonest possible date:

I congratulate you, fellow-citizens, on the approach of the period at which

you may interpose your authority constitutionally, to withdraw the citi-
zens of the United States from all further participation in those violations
of human rights which have been so long continued on the unoffending
inhabitants of Africa, and which the morality, the reputation, and the best
interests of our country, have long been eager to proscribe.23

Legislation to prohibit the slave trade was introduced the following day
and was passed by Congress on March 2, 1807, to take effect in January
1808, the first constitutionally allowable date. As soon as the new law
took effect, slave imports plummeted from more than 20,000 in 1807 to
593 recorded in 1808 and none the following year, as shown in figure
3.1.24 The number of American ships engaged in the slave trade to other
countries also declined substantially, as shown in figure 3.2.
Britain, of course, had just passed its own law against the slave trade,
and, as early as 1808, the British abolitionist leader William Wilber-
force was writing to Thomas Jefferson to see if it would be possible “to
obtain some agreement between the two nations, for giving effect to
Abolition, by allowing each country to take the other’s ships.”25 But the
mood in the United States was ill disposed toward allowing the British
the right to board American ships. Already, British interference with
American commercial trade to France and Britain’s practice of impress-
ing into British naval service sailors aboard U.S. merchant ships had led

T H E U N I T E D S TAT E S A N D T H E S L AV E T R A D E [ 43 ]
 Known Slave Trading Voyages by U.S. Flagged Ships
130
120
110
100
90
80
Number

70
60
50
40
30
20
10
0
1770

1775

1780

1785

1790

1795

1800

1805

1810

1815

1820

1825

1830
Year

Figure 3.2. U.S. Flagged Ships in Slave Trade

to tension between the two countries. This tension would eventually

boil over as war broke out between the two countries in 1812. It was not
until after the war that the countries would be able to really cooperate
on the slave trade issue. Following peace negotiations, the United States
agreed with Britain in the Treaty of Ghent in 1814 to use its best efforts
to suppress the slave trade, though that treaty had no enforcement
mechanism.26 While Britain was negotiating treaties with other Euro-
pean powers on the slave trade in 1816 and 1817, it continued to press
the United States for further action, suggesting provisions for mutual
search and for mixed commissions—suggestions that the Americans
chose to ignore.27
Multilateral negotiations among the European powers regarding the
slave trade continued throughout 1818. At the Congress of Aix-la-
Chapelle in 1818, the Russian government pushed for a permanent in-
ternational institution “composed of elements drawn from all civilized
States” including “a directing Council, and a judicial system” that would
form “a Body Politic, neutral in its character, but exercising these High
authorities over all States.”28 In its most ambitious iterations, such an
organization would have criminal as well as civil jurisdiction over per-
sons engaged in the illegal slave trade and would have at its disposal an

[ 44 ] The Slave Trade and the Origins of International Human Rights Law
international naval force with the right to visit and search ships flying all
flags. By late 1818, however, the British government (perhaps because
of its unsuccessful attempts to convince France to agree to courts of
mixed commission) was skeptical of the “practicality of founding, or
preserving in activity, so novel and so complicated a system” and began
suggesting that it might be more feasible to treat slave traders as pirates,
subject to trial in national legal systems. Castlereagh proposed to the
parties at Aix-la-Chappelle that “it would be useful, and perhaps neces-
sary, to consider the trade in slaves as a crime against the law of nations,
and to this effect to assimilate it to piracy.” If the slave trade were “uni-
versally prohibited” and “raised in the criminal code of all civilized na-
tions to the standard of piracy,” it would be “amenable to the ordinary
tribunals of any or every particular state.” The individuals charged with
piracy could “plead no national character in bar of such jurisdiction,” for
pirates were “Hostes humani generis,”29 or enemies of the human race,
and fell “under the protection of no flag.” The “verification of the fact of
Piracy, by sufficient evidence, brings them at once within the reach of
the first Criminal Tribunal of competent authority, before whom they
may be brought.”30
The British had by no means given up on the mixed courts idea, how-
ever, and they continued to try to persuade the United States to join the
mixed courts regime, like Spain, Portugal, and the Netherlands. Cer-
tainly, the United States was no stranger to international courts.
Although various forms of arbitration had been used to resolve disputes
for many centuries,31 the modern era of international adjudication is
considered to begin with the Jay Treaty of 1794, through which Britain
and the United States agreed to settle claims from the Revolutionary
War by arbitration.32 The commissions created under Article VII of the
treaty yielded the most significant results;33 they were charged with de-
ciding property claims of American citizens “according to the merits of
the several Cases, and to Justice, Equity and the Laws of Nations.”34
There were over 500 awards between 1798 and 1804.35 The Jay Treaty

T H E U N I T E D S TAT E S A N D T H E S L AV E T R A D E [ 45 ]
arbitration panels were, in some sense, a model for the proposed slave
trade tribunals, and the British referred to the precedent.
But other tension points in Anglo-American relations thwarted the
negotiations. Britain had the world’s most powerful navy. The Ameri-
cans were concerned that the British would use this naval power to
interfere with their commercial interests and trade, as they had in the
past through the practice of boarding American ships and impressing
sailors they deemed British citizens into service in their navy. This had
been one of the causes of the War of 1812, and the issue lingered as a
tension point even after that war ended. As then–Secretary of State
John Quincy Adams noted in his diary, the Americans viewed the Brit-
ish proposals related to the slave trade as a “barefaced and impudent
attempt of the British to obtain in time of peace that right of searching
and seizing the ships of other nations which they so outrageously
abused during war.”36 For decades, the concern that the right to search
would be abused by the British kept the Americans from joining with
the British in a stronger treaty.
One typical discussion of American concerns took place in October
1818, when the cabinet of President James Monroe met to decide what
the American position should be in new negotiations with the British on
impressment and the slave trade.37 As the entry in Adams’s diary shows,
the members of the administration considered these to be politically
sensitive issues. Monroe noted that impressment was a cause of the re-
cently ended war and, according to Adams, noted, “There was a deep
anxiety in [the public] minds, from an apprehension that it would again
give rise to war.”38 Any missteps in the negotiations could be used by po-
litical rivals to gain the upper hand. Secretary of War John C. Calhoun
joked, “what will the Kentucky and Western country newspapers say,”
which “occasioned a general laugh” as they “all knew that” political rival
Henry Clay “would think well of anything which might excite dissatisfac-
tion with the Administration.”39 Calhoun was concerned about any pro-
posal that “would allow a British officer to muster and pass under inspection

[ 46 ] The Slave Trade and the Origins of International Human Rights Law
the crew of every American vessel boarded by him. It would give rise to
altercations, and expose the American master to the insolence of the
British officer, scarcely less galling than the injury of impressment itself.”
This would, Calhoun suggested, “give great dissatisfaction to the nation,
and would be used as a weapon against the Administration.”40
The main concern raised in respect to the British proposal for a slave
trade treaty allowing a mutual right of search and trial in mixed com-
missions was that

we have suffered so much from the practice of foreign officers to search

our vessels in time of war, particularly by its connection with a British
doctrine that after an officer has entered for one purpose he may pro-
ceed to search for another, that we ought to be especially cautious not to
admit of the right of search in time of peace.41

Some of the Americans also had other concerns about the British pro-
posal for mixed commissions. Attorney General William Wirt suggested
that “there was no constitutional authority in the Government of the
United States to establish a Court, partly consisting of foreigners, to sit
without the bounds of the United States, and not amenable to impeach-
ment for corruption,” citing Article III, Section 1 of the Constitution,
which vests the judicial power of the United States in the Supreme
Court and such inferior courts as the Congress shall establish. Adams
responded, “[I] thought there was sufficient authority by the Constitu-
tion, and likened it to the joint commissions which we have had by
treaties with Great Britain and Spain, and to the Courts of Admiralty
which it has been proposed to establish at Naples if we could have
obtained the consent of that Government.”42 Wirt “pointed out distinc-
tions between the two cases—between Courts constituted under the
laws of nations and Courts to carry into effect our municipal and penal
statutes.”43 Adams responded, “as the power of making treaties is with-
out limitation in the Constitution, and treaties are declared to be the

T H E U N I T E D S TAT E S A N D T H E S L AV E T R A D E [ 47 ]
supreme law of the land, I still hold to the opinion that there is no con-
stitutional difficulty in the way.”44 Notwithstanding his initial defense of
the constitutionality of the proposed slave trade tribunals, Adams
would eventually come around to Wirt’s view and would argue, in nego-
tiations with the British, that the courts presented constitutional prob-
lems for the United States, though it was never clear how sincere he was
in offering these arguments.45
All of these men—President James Monroe, Secretary of State John
Quincy Adams, and Attorney General Willliam Wirt—would continue
to play a prominent role in debates over slavery and the slave trade in
the following years. When Monroe was sworn in as president in March
1817, he became the fifth man to hold that office and the last to have
played a prominent role in the American Revolution.46 A Virginian, he
had served as secretary of state under James Madison, and he came into
power at the beginning of what many described, then and since, as an
“era of good feelings” in American politics.47 He was a slave owner,
though his feelings on slavery seem to have been somewhat ambivalent.
John Quincy Adams would succeed Monroe as president following
the 1824 election. The son of President John Adams and Abigail Adams,
he had been born in Massachusetts. In his early career, he served as a
senator and also spent a number of years abroad as the American am-
bassador to various European powers. He was one of the main negotia-
tors of the Treaty of Ghent with the British in 1814, and was the
American ambassador in London until 1817 when he returned and
became Monroe’s secretary of state. Adams was an opponent of slavery
who famously defended the Africans onboard the slave ship Amistad in
the Supreme Court in the 1840s as an old man, but in the 1820s he was
an ambitious younger man who was sensitive to political circumstances.
The British viewed Adams’s political ambitions as an impediment to the
conclusion of a slave trade treaty.48 Throughout the negotiations over
the treaty in the early 1820s, Adams undoubtedly had his political
future in mind. As one historian puts it, “Being a New Englander and a

[ 48 ] The Slave Trade and the Origins of International Human Rights Law
former Federalist, Adams could not afford the slightest imputation of
being pro-British.”49 Adams would run for president in the four-way
election of 1824 against Senator Andrew Jackson, Treasury Secretary
William H. Crawford, and Speaker of the House Henry Clay. The elec-
tion was extraordinarily close and was ultimately decided in the House
of Representatives, where Adams was selected as the next president.
Attorney General William Wirt is a less familiar name today, but at
the time he was a very prominent and successful lawyer; today, he is
viewed by legal historians as having increased the power and prestige of
the office of attorney general.50 Adams appeared to have no great fond-
ness for him and complained in his diary that Wirt “appeared to think
more about his salary, or what he called bread and meat for his children,
than of any other subject.”51 He did seem to be perpetually in search of
a way to pay his bills; in 1823 and 1824, Wirt argued almost as many
cases for private parties in the U.S. Supreme Court as he argued for the
United States government (something that ethics rules would never
allow today).52 Wirt was a slaveholder and more generally a defender of
slavery, though he did support certain anti–slave trade measures.
Once Monroe’s administration rejected the initial British overtures
for a new treaty in late 1818, Congress chose to act against the slave
trade through further domestic legislation. On March 3, 1819, Con-
gress passed two important bills that would affect the slave trade. One
bill, An Act in Addition to the Acts Prohibiting the Slave Trade, renewed
authorization for the use of naval vessels to intercept illegal slavers; in-
cluded within the prohibition ships that were equipped for the slave
trade but that did not actually have slaves onboard at the time of cap-
ture; and authorized the federal government to make arrangements for
the safekeeping of slaves from forfeited ships and for removing them to
the coast of Africa, where the recently formed Colonization Society
planned to set up a haven for freed slaves in what would eventually
become Liberia.53 On the same day, Congress also passed An Act to
Protect the Commerce of the United States and Punish the Crime of

T H E U N I T E D S TAT E S A N D T H E S L AV E T R A D E [ 49 ]
Piracy, which provided for punishment by death of any person who “on
the high seas, commit[s] the crime of piracy, as defined by the law of
nations” and who “shall afterwards be brought into or found in the
United States.”54 The Supreme Court in United States v. Smith eventually
upheld the piracy statute and rejected the argument that piracy was in-
sufficiently definite under the law of nations to constitute a crime under
American law.55 “There is scarcely a writer on the law of nations, who
does not allude to piracy as a crime of a settled and determinate nature,”
the Court noted, and the definition could easily be “ascertained by con-
sulting the works of jurists, writing professedly on public law; or by the
general usage and practice of nations; or by judicial decisions recog-
nizing and enforcing that law.”56
One thing that the law of nations did not yet include within the of-
fense of piracy was the slave trade, for no country had yet taken up Brit-
ain’s suggestion at Aix-la-Chapelle to assimilate the slave trade to piracy.
Soon, Congress would change the definition of piracy in American law,
but it would take more than the act of one nation to change the inter-
national definition. The following year, on May 15, 1820, Congress
amended the 1819 piracy act to redefine piracy to include not only rob-
bery on the high seas but also slave trading. Specifically, the statute
made it piracy for “any citizen of the United States” or any person
serving onboard a ship “owned in the whole or part, or navigated for, or
in behalf of, any citizen or citizens of the United States” to “land, from
any such ship or vessel, and, on any foreign shore, seize any negro or
mulatto . . . with intent to make such negro or mulatto a slave.”57
The new statute subjected offenders to the death penalty, making it
perhaps the strongest measure against the slave trade in any nation, at
least on paper. In the end, only one person was ever hung for slave
trading by the United States, and that was not until 1862. Efforts to
enforce these laws did increase, with some eleven slave ships captured
by the navy between May 1818 and November 1821.58 For a brief time
in 1820, the United States had five naval vessels off the coast of Africa.

[ 50 ] The Slave Trade and the Origins of International Human Rights Law
One of them, the USS John Adams, met up with the British HMS
Snapper, and the captains of the two ships cooperated in an attempt to
capture a slave ship in the River Pongas. But the American ships did not
stay on the coast for long and were soon recalled to service in other
waters.59
At the same time Congress was dealing with the slave trade, it was
also confronting the issue of slavery itself. Beginning in 1819, the federal
government was forced to address the issue of slavery in newly admitted
states and territories as Missouri sought admission to the Union as a
slave state. Northern states were concerned that this would tilt the bal-
ance in favor of slavery, while Southern states hoped to keep the balance
from shifting in the other direction. After more than a year of acrimo-
nious debate, the Missouri Compromise passed in 1820. The compro-
mise preserved a balance between free and slave states by admitting
Missouri as a slave state and Maine as a free state, and by prohibiting
slavery in the Missouri Territory north of the 36°30′ parallel except
within the proposed new state of Missouri itself.
Though the Missouri Compromise passed, it was obvious to Secre-
tary of State John Quincy Adams that the “bargain between freedom
and slavery contained in the Constitution of the United States” was a
ticking time bomb: “If the Union must be dissolved, slavery is precisely
the question upon which it ought to break,” Adams mused in his diary.60
At the same time, both Congress and the British began pushing
Monroe’s administration to take even further action against the slave
trade. In 1821, a proposed resolution in the House requested the presi-
dent “to consult and negotiate with all the Governments, where Minis-
ters of the United States are, or shall be accredited, on the means of
effecting an entire and immediate abolition of the African slave trade.”61
But the negotiations over a British treaty were stalled. Adams’s diary
suggests that the main and almost insurmountable objection of the U.S.
government was to the right of search, though at times Adams would
also raise the constitutional arguments he initially viewed as dubious.

T H E U N I T E D S TAT E S A N D T H E S L AV E T R A D E [ 51 ]
In his diary in April 1819, for example, Adams records that Rush, the
American minister in London, had been instructed to reject the British
mixed courts proposal “for two reasons,” the first being that “the United
States, having no Colony or possession in Africa, had no territory where
the joint Court could hold their sessions” and the other “that the Con-
stitution of the United States admitted no appointment of Judges who
would not be amenable to impeachment.”62 But Adams went on to say,
“There was a third reason which had been mentioned to Mr. Rush, but
which he had not been desired to urge, if the others would appear to be
entirely satisfactory to the British government.”63 In an informal conver-
sation with the British minister in Washington, Charles Bagot, Adams
“thought it well to come directly to the point of . . . difficulty by stating”
this third objection, namely that “the United States ought on no consid-
eration whatever to listen to any proposal for admitting a right of search
in their merchant vessels by the commanders of foreign armed vessels
so long as the question remains open between them and Great Britain
concerning impressment for men.”64 Tellingly, Adams explained to
Bagot, “[W]e had no wish to stir this question unnecessarily, or to
awaken the feelings connected with it, when it can be avoided, we had
scarcely mentioned it in regular communications to the British Govern-
ment,” and that he thought it best to mention it only in an “informal
manner.”65 In other words, the Americans were hoping that the British
would accept the constitutional objection so that they would not have
to discuss the troublesome issue of search and impressment.
Soon, the British sent a new negotiator, Stratford Canning, to Wash-
ington with full instructions to engage the Americans in a new slave
trade treaty.66 But the change of personnel had little impact on the nego-
tiations. In a meeting with Canning in October 1820, Adams rebuffed
Canning with objections to the right of search in peacetime and also
argued that there was a “want of Constitutional authority to establish
such a Court.”67 Adams continued by noting “there were other [rea-
sons]” that “it was best in candor to mention” in this private meeting.68

[ 52 ] The Slave Trade and the Origins of International Human Rights Law
The first was “the general extra-European policy of the United States.”69
The second was that the United States “had had one war with Great
Britain for exercising what she alone claims of all the nations of the
earth as a right—search of neutral vessels in time of war to take out
men.”70 The nations had tried without success to work out a satisfactory
agreement on this point, and “[i]t was a point upon which, more than
any other, not only the people but the Government of the United States
were sensitive, and which would fix [them] in the determination in no
case to yield the right of search in time of peace.”71 Canning’s response
that the mutual right of search in the slave trade was unlikely to be
abused gained little traction.72
Later meetings covered much of the same ground.73 In one meeting,
when Adams raised concerns about impressment, Canning “hint[ed]
some regret that [Adams] should even harbor the sentiment that there
was any analogy between” the right of search in the slave trade treaties
and the issue of impressment.74 Canning returned on October 26 to
lobby Adams again for “two hours or more upon the subject of the
slave-trade,” bringing with him a “long written paper” summarizing and
responding to the various American objections.75 The conversation
frustrated both participants. “We went over the whole ground of im-
pressment, as usual, to no purpose,” Adams recounted in his diary.76 “I
told him it was not my wish to debate the point,” for “w[e] had more
than once exhausted the argument with his Government.”77
Little changed in the next two years of negotiations. In June 1822,
Adams recounted another meeting with Canning where they debated
search and impressment: “We went over this ground again, as we had
often done before, repeating on both sides the same arguments as
before.”78 But when it came time for public statements, Canning as well
as Adams seemed loath to focus too much on impressment. Indeed,
Adams recounts in his diary that when he told Canning that his latest
response to the British proposal was before the president for review,
Canning “appeared to be uneasy at the idea that in my reply the subject

T H E U N I T E D S TAT E S A N D T H E S L AV E T R A D E [ 53 ]
of impressment would be discussed, and said he hoped, in the disposi-
tion between the two Governments so strongly tending towards concili-
ation, whatever was of an irritating character might be avoided.”79
Other statements by the administration echoed the roadblock in the
negotiations around the topic of impressment. President Monroe, for
example, noted in a letter in 1821, “We should be guarded, in the pur-
suit of this object [of suppressing the slave trade], to give no counte-
nance by any act of ours to the right of search, which may be applied to
other purposes” and cautioned against any policy that “might give some
countenance to the practice of impressment.”80
Meanwhile, two important court cases concerning the slave trade
were working their way through the federal court system. The first con-
cerned a ship called La Jeune Eugenie. The USS Alligator, commanded
by Captain Robert Stockton, was cruising off the coast of Africa in
1821, when it fell in with the schooner La Jeune Eugenie and captured
it on suspicion of slave trading.81 Though no slaves were onboard at the
time, the ship was equipped with movable decks and irons and far too
much food and water for its small crew. The Americans placed a prize
crew onboard and sailed the captured ship to Boston, where they sought
condemnation of the ship in federal court under various statutes in-
cluding the 1807, 1819, and 1820 acts. The captors claimed that the
ship was American, though it flew the French flag and carried French
papers. In support of their claim, they asserted that the ship had been
built in the United States, that there were no legal papers showing its
transfer to French citizens, and that it was well known that the French
flag and papers were used to shield slave traders. In the alternative, they
alleged that the slave trade was prohibited by French laws and that the
court would be justified on that ground from returning the ship, as the
alleged owners had no legal claim to it under their own nation’s law. Fi-
nally, they argued that “the slave trade was contrary to the law of na-
tions, as at present understood and received” because it was “a violation
of the law of nature, which constituted a component part of the law of

[ 54 ] The Slave Trade and the Origins of International Human Rights Law
nations.”82 Noting that “[m]ost or all of the civilized nations of the globe,
had declared their sense of the illegality of this trade, by enacting laws to
suppress it, and by various other public acts, treaties, and declarations,”
they contended that “it might now therefore be considered as contrary
to the conventional law of nations.”83
On the other side of the case, the French consul entered a claim on
behalf of the alleged owners of the Eugenie, and “a protest against the
seizure and judicial proceedings, on behalf of the French govern-
ment.”84 In addition to arguing that the ship was French and that there
was inadequate proof that it was engaged in the slave trade, the French
claimants also argued that there was no belligerent right under the law
of nations that authorized the initial search and seizure of the ship.
They asserted that the customary law of nations did not prohibit the
slave trade and that there were no grounds upon which the courts of
the United States could rightly exercise jurisdiction.
The case almost immediately incited diplomatic controversy, and,
upon the advice of Secretary of State Adams, President Monroe soon
issued orders to the navy against intercepting foreign-flagged vessels.85
When Monroe and Adams were inclined to ask that the ship be turned
over to the French government, Attorney General Wirt was actually
more skeptical. Wirt noted, “You have certainly taken the safe side as it
affects our questions of search with Great Britain.” But he questioned
whether the administration’s position was “too far within the line,”
noting that “vessels are in the constant habit of using the flags of all na-
tions to cover their illicit operation” and that the laws against the slave
trade would be unenforceable if there was no right to question their na-
tionality.86 Adams responded that there was no peacetime right to board
and search foreign vessels and that “[b]y the law of nature, no vessel has
a right to board another at sea without its consent.”87 Adams’s views pre-
vailed within the administration, and the district attorney was instructed
to inform the court that the president desired that the ship be turned
over to the French government.

T H E U N I T E D S TAT E S A N D T H E S L AV E T R A D E [ 55 ]
 It was the practice in those days for Supreme Court justices to “ride
circuit” and decide cases in the regions to which they were assigned,
and Justice Joseph Story of the U.S. Supreme Court decided the case as
circuit justice. Story was one of the most prominent members of the
early Supreme Court, and in 1833 and 1834 published his influential
Commentaries on the Conflict of Laws and Commentaries on the Constitu-
tion of the United States. Later, he would write the majority opinion in
the Supreme Court in the Amistad case.
In his opinion in the case of La Jeune Eugenie, Story wrote that he was
“fully aware of the importance and difficulty of this case,” including the
diplomatic trouble it had caused between the United States and France.
He determined that the ship was American built and American owned,
though carrying French papers, and that it was equipped for the slave
trade. Story noted that the statute making the slave trade piracy and
punishable by death meant that American citizens involved in the slave
trade would have a strong incentive to disguise their nationality, and that
false papers were easy to obtain. “Sitting as I do in a court of the law of
nations, accustomed to witness, in many shapes, the artifices of fraud . . .
I think, that I should manifest a false delicacy . . . if I did not borrow
somewhat that experience of the world, to enable me to disentangle the
network, which covers up unlawful enterprises.”88 Given the circum-
stances, he thought that more proof was necessary to show that the ship
was actually French rather than American.
But even assuming the ship was French, he went on to explain, the
French claimants were still not entitled to its return. In an action in
rem, he stated, anyone seeking title to the property must establish good
title; even if the prize crew’s claim should fail, that did not mean the
ship should be returned to the French claimants if they could not them-
selves establish good title. While acknowledging that there was no
peacetime right of search under the law of nations, he distinguished the
right of seizure, noting that “vessels and property in the possession of
pirates might be lawfully seized on the high seas,” though in such cases

[ 56 ] The Slave Trade and the Origins of International Human Rights Law
the captors acted at their own peril if they turned out to be mistaken
about the captives’ piratical character.
Turning then to the question whether the law of nations prohibited
the slave trade, Story acknowledged that slavery “existed in all ages of
the world” and “forms the foundation of large masses of property in a
portion of our own country.” He could not deny that “under some cir-
cumstances [slavery] may have a lawful existence” and “may form a part
of the domestic policy of a nation.”89 Nevertheless, he concluded that
the lawfulness of the African slave trade was a separate and distinct
issue. In great detail drawn from abolitionist writings of the period,90 he
described the particular ways in which the African slave trade involved
“a breach of all the moral duties, of all the maxims of justice, mercy and
humanity.” The law of nations, he explained,

may be deduced, first, from the general principles of right and justice, ap-
plied to the concerns of individuals, and thence to the relations and duties
of nations; or, secondly, in things indifferent or questionable, from the cus-
tomary observances and recognitions of civilized nations; or lastly, from the
conventional or positive law, that regulates the intercourse between states.91

Universal agreement since time immemorial was not necessary, in his view,
to make something part of the law of nations, for certain aspects of that law
could change over time. The major European powers had recently acknowl-
edged the injustice and inhumanity of the slave trade and pledged to pro-
mote its abolition, as had the United States. Story therefore described
himself as “bound to consider the trade an offence against the universal law
of society and in all cases, where it is not protected by a foreign government,
to deal with it as an offence carrying with it the penalty of confiscation.”92
Story went on to distinguish the recent British decision invalidating
the seizure of the French slave ship Le Louis. That seizure had been
made “when no public ordinance of France prohibited the slave trade,
and before the recent [international] discussions at Aix-la-Chappelle

T H E U N I T E D S TAT E S A N D T H E S L AV E T R A D E [ 57 ]
[condemning the trade].” While “cognizance of penalties and forfei-
tures for breaches of municipal regulations exclusively belongs to the
tribunals of the nation, by whom they are enacted,” Story noted that the
courts of another nation were able to take judicial notice of foreign laws
“which come incidentally before it in the exercise of its general jurisdic-
tion over persons or property.”93 Thus, in determining who had a valid
claim to ownership of the vessel, the court was entitled to take notice
that French municipal law also prohibited the slave trade.
In the end, Story stopped short of declaring the ship forfeit. He noted
that the district attorney had submitted, by direction of the president, a
suggestion that the ship be turned over to the French government for
final adjudication. Though he concluded that the private French owners
were not entitled to return of the ship, he decreed that the ship should
be turned over to the French government. That ended the case.
At the same time, a similar case was working its way through the
courts, with the additional element of slaves having been found onboard
at the time of capture. That case, The Antelope, would eventually reach
the U.S. Supreme Court, where Chief Justice Marshall would reach a
conclusion quite different from Story’s on the status of the slave trade
under the law of nations.94 The case began when the United States rev-
enue cutter USS Dallas captured the Antelope in June 1820 with some
281 slaves on board. The ship was brought to Savannah for trial on sus-
picion of being illegally engaged in the slave trade.95 The local U.S. at-
torney was not entirely certain how to proceed and sought instructions
from Washington, DC. When the issue reached President Monroe’s
desk, the president instructed Adams on how to respond:

Instruct the D. Attorney to pursue the affair in its several relations

with the utmost attention; first, to contend for the complete liberation
of every African against every claimant . . .; and secondly, for the
punishment of all concerned in taking them who are exposed to it
under our laws.96

[ 58 ] The Slave Trade and the Origins of International Human Rights Law
Further, Monroe noted his belief, “I do not think that any foreigner can
sustain a claim against an African brought directly from Africa as a slave,
in our Courts, but that when brought within our jurisdiction he must
be free.”97
The captain of the ship, John Smith, was indicted and tried for piracy,
based on the allegation that he had stolen the Antelope from its true
Spanish and Portuguese owners; the American statute declaring the
slave trade to be piracy was not used because it had been enacted too
recently, on May 15, 1820. Smith’s defense was that he was operating not
as an unlawful pirate but as a lawful privateer under commission from a
revolutionary South American government, the predecessor of modern-
day Uruguay. After the trial, he was acquitted by the jury.98 Smith then
entered the parallel civil proceeding in admiralty as a claimant, seeking
return of the Antelope and its cargo as against the competing claims of
the captain of the Dallas and Portuguese and Spanish claimants on
behalf of the ship’s original owners.99 The district judge ruled that the
ship should be returned to the Spanish, dividing most of the slaves
between the Spanish and Portuguese claimants and awarding bounty
and salvage to the captain of the Dallas.100 The case was appealed to the
Sixth Circuit, which described the suit as having been brought “on behalf
of the United States and officers and crew of the cutter Dallas who claim
the vessel and cargo as forfeited under the act of the 20th April, 1808, or
under the modern law of nations on the subject of the slave trade.”101 The
appeals court held that the U.S. statutes prohibiting the slave trade were
not applicable to foreign-flagged ships; the court believed the general
law of nations still allowed the slave trade, and it thus concluded that the
ship and its cargo had to be returned to its original owners, a view that
would ultimately be upheld by the Supreme Court.102
Although the case was docketed in the Supreme Court in early 1822,
it was not argued immediately. The Monroe administration was appar-
ently not eager to have the case decided and so, without public explana-
tion, the case was held over for three full years without argument, a

T H E U N I T E D S TAT E S A N D T H E S L AV E T R A D E [ 59 ]
rather unusual delay. Indeed, the case was not argued in the Supreme
Court until 1825—after a slave trade treaty with the British had finally
been agreed to by the Monroe administration and then failed upon
amendment in the Senate, and after Adams had won the closely con-
tested 1824 presidential election.
A number of important developments occurred between 1822 and
1825. In 1822, at the Congress of Verona, Britain attempted to get other
European powers to agree to stronger measures against the slave trade,
again pressing for an agreement that each country should denounce the
slave trade as piracy.103 In 1823, the American Congress began pushing
harder for the conclusion of a treaty with the British, with the House
passing a resolution calling upon the president “to enter upon . . . nego-
tiations with the several maritime Powers of Europe and America, as he
may deem expedient for the effectual abolition of the African slave
trade, and its ultimate denunciation, as piracy, under the law of nations,
by the consent of the civilized world.”104 In support of the resolution,
Congressman Mercer argued that “[t]he consent of nations may make
piracy of any offence upon the high seas” and that declaring the slave
trade piracy would provide a “definite and competent remedy” that
would be “understood, and punished by all nations.” Moreover, the
slave trade was analogous to piracy, for, he asked, “is it not robbery to
seize, not the property of the man, but the man himself?” As for the
mixed courts, he opined that “Great Britain cannot but perceive the in-
efficacy of those mixed courts on which she has relied to give effect to
her laws and treaties for the abolition of the slave trade, and, above all,
that her present system, complicated and difficult of execution in peace,
must be exposed to great derangement, if not abandoned, in war.” De-
claring the slave trade to be piracy, by contrast, would be “simple” and
“effective.”105 This approach—the “piracy” strategy—would dominate
American-British negotiations for the next two years.
Broader developments in U.S. foreign policy were also afoot. Many
of the Latin American countries had declared their independence from

[ 60 ] The Slave Trade and the Origins of International Human Rights Law
Spain, and the United States felt the need to weigh in on their indepen-
dence. At the same time there were rumors that the Russian govern-
ment had designs on areas in the Pacific Northwest. The United States
wanted to discourage other countries from trying to gain control of the
former Spanish colonies or from attempting to colonize the as-yet-
unsettled regions of the Western Hemisphere. Later that year, President
Monroe laid out what would become known as the Monroe Doctrine in
his State of the Union message in December 1823. The doctrine, ac-
tually drafted by Secretary of State Adams, became a cornerstone of
American foreign policy into the twentieth century. The doctrine
asserted that North and South America should not be colonized further
by any European powers; that any European intervention in the hemi-
sphere would be treated as “dangerous to our peace and safety”; and
that the United States would not become involved in European wars or
“internal concerns.”106
It was against this backdrop of asserted independence from Euro-
pean affairs that the United States continued to negotiate a treaty on
the slave trade with the British in 1823 and 1824. In March 1823,
Adams wrote to Canning proposing a treaty whereby the two coun-
tries would mutually stipulate “to annex the penalties of Piracy to the
offence of participating in the Slave Trade, by the Citizens or Subjects
of the respective Parties.”107 Adams noted “[t]he distinction between
piracy by the law of nations and piracy by statute,” and the fact that
“while the former subjects the transgressor guilty of it to the jurisdic-
tion of any and every country into which he may be brought, or wherein
he may be taken, the latter forms a part of the municipal criminal code
of the country where it is enacted, and can be tried only by its own
courts.”108 Though the United States “expressed their desire that the
change [in the definition of piracy to include the slave trade] should
become general by the consent of every other power,” Adams acknowl-
edged that Britain and the United States alone could not redefine
piracy under the general law of nations. Until the general agreement of

T H E U N I T E D S TAT E S A N D T H E S L AV E T R A D E [ 61 ]
nations on the matter was achieved, Adams asserted that the United
States was bound to punish its own citizens in its own courts, and the
treaty had to provide that captured slave ships be brought back to their
own nation for trial.109 At the same time, Adams also sent letters to
American diplomats in a variety of countries including Spain, France,
and the Netherlands seeking similar agreements to redefine the slave
trade as piracy.110
It may seem odd that the 1824 treaty submitted to the Senate allowed
a right of search, since the United States’ main objections to British pro-
posals over the past several years had concerned the right of search. But,
in fact, policy concerns about the scope of the right to search and im-
pressment drove this decision to put jurisdiction in national courts, and
the members of the administration believed the treaty adequately cab-
ined Britain’s ability to abuse the right of search. As Secretary of the
Navy Thompson explained in one cabinet meeting, if arrangement
“could be made so that vessels under our flag should be brought for trial
into our own jurisdiction and tried by our own Courts,” there was little
chance it “would give any countenance to the British practice of impress-
ing men from our merchant vessels in time of war.”111 Adams likewise
explained, “The objections to the right of search, as incident to the right
of detention and capture, are also in a very considerable degree removed
by the introduction of the principle” that the home courts of the cap-
tured ship would be able to review the legality of the search and impose
damages on the captor if the search was unwarranted. “This guard
against the abuses of a power so liable to abuse would be indispensable,”
Adams believed.112
As Monroe explained in his 1824 message to the Senate, the problem
with the original British proposal was that “[t]he right of search is the
right of war of the belligerent toward the neutral” and “[t]o extend it in
time of peace to any object whatever, might establish a precedent which
might lead to others with some powers, and which, even if confined to
the instance specified, might be subject to great abuse.”113 On the other

[ 62 ] The Slave Trade and the Origins of International Human Rights Law
hand, assimilating the slave trade to piracy would not set a precedent for
expanding peacetime search but would merely fit the slave trade into a
preexisting category where search was allowed. “By making the crime
piracy, the right of search attaches to the crime, and . . . when adopted by
all nations, will be common to all.”114
The British readily agreed to the proposal, and Parliament enacted a
statute declaring the slave trade to be piracy. The treaty foundered,
however, when in ratifying the final treaty the Senate tried to make
changes to which the British would not agree.115 Although the British
were willing to accept some modifications, including a provision
allowing either party to withdraw from the treaty, they were unwilling
to accept the Senate’s insistence that the waters off the coast of America
be excluded from the treaty.116 The two countries found themselves at
an impasse.
It was against this background of diplomatic failure that the Supreme
Court finally decided the case of the Antelope the following year. By
then, the case had been lingering for years on appeal, the unfortunate
Africans from onboard the ship still waiting to learn their fate. The
results were not good. Writing for the Court, Chief Justice Marshall
concluded that the ship and the enslaved passengers must be returned
to their owners. With the recent failure of the treaty no doubt in mind,
Marshall began by observing “[t]hat the course of opinion on the slave
trade should be unsettled, ought to excite no surprise.”117 While “abhor-
rent,” he explained, “it has been sanctioned in modern times by the laws
of all nations who possess distant colonies” and “has claimed all the
sanction which could be derived from long usage, and general acquies-
cence.” Thus, he went on, “That trade could not be considered as con-
trary to the law of nations which was authorized and protected by the
laws of all commercial nations.”118 Marshall, relying in part on the Brit-
ish decision in Le Louis, concluded that “the legality of the capture of a
vessel engaged in the slave trade depends on the law of the country to
which the vessel belongs.”119 Marshall specifically noted the holding in

T H E U N I T E D S TAT E S A N D T H E S L AV E T R A D E [ 63 ]
Le Louis that there is no peacetime right of search except against pirates,
who are the “enemies of the human race.”120 But the slave trade was not
yet piracy under the law of nations.121
As for slavery itself, “That it is contrary to the law of nature will
scarcely be denied,” for “every man has a natural right to the fruits of his
own labor.”122 But slavery had been allowed since ancient times and thus
“could not be pronounced repugnant to the law of nations” for “[t]hat
which has received the assent of all must be the law of all.”123 Marshall—
whose decision in Marbury v. Madison had helped launch the practice of
judicial review—explained the role of a judge in circumspect terms:

Whatever might be the answer of a moralist to this question, a jurist

must search for its legal solution in those principles of action which are
sanctioned by the usages, the national acts, and the general assent of that
portion of the world of which he considers himself a part, and to whose
law the appeal is made. If we resort to this standard as the test of interna-
tional law, the question as has already been observed, is decided in favor
of the legality of the trade.124

The opinion went on to explain, “Each [nation] legislates for itself, but
its legislation can operate on itself alone. . . . As no nation can prescribe
a rule for others, none can make a law of nations.”125
Marshall further explained the relation of the slave trade to piracy: “If it
is consistent with the law of nations, it cannot in itself be piracy. It can be
made so only by statute; and the obligation of the statute cannot tran-
scend the legislative power of the state which may enact it.”126 Thus, the
court concluded, “the right of bringing in for adjudication in time of
peace, even where the vessel belongs to [a] nation which has prohibited
the trade, cannot exist”; for “[t]he Courts of no country execute the penal
laws of another.”127 Like the British decision in Le Louis, Marshall’s
decision in the Antelope closed American courts as an option for con-
demning foreign ships engaged in the slave trade, at least in the absence of

[ 64 ] The Slave Trade and the Origins of International Human Rights Law
further treaties. Natural-law arguments about the evil of slavery would not
be enough.
Shortly thereafter, James Kent’s influential treatise Commentaries on
American Law in 1826 reflected this same understanding of the status of
the slave trade under the law of nations. Kent described the turn of sen-
timent against the transatlantic slave trade, as it was “repugnant to the
principles of Christian duty, and the maxims of justice and humanity.”128
But Kent agreed it was “not piratical or illegal by the common law of
nations.”129 He explained that “a pirate, who is one by the law of nations,
may be tried and punished in any country where he may be found.”130
But acts that were not piracy under the law of nations, but solely under
the municipal laws of a particular country, were “punishable exclusively
by the nation which passes the statute.” Although the slave trade was
declared to be piracy by statutes in England and the United States, those
two nations could not speak for the whole world, and the slave trade
was still not piracy under the law of nations. The American statute of
1820 making the slave trade piracy, he explained,

operates only where our municipal jurisdiction might be applied consis-

tently with the general theory of public law, to the persons of our citi-
zens, or to foreigners on board of American vessels. Declaring the crime
piracy does not make it so, within the purview of the laws of nations, if it
were not so without the statute.131

In order to “make it piracy” under the law of nations, “it must have
been so considered and treated in practice by all civilized states, or
made so by virtue of a general convention.”132
Thus, in the 1820s the law of nations was in an ambiguous and transi-
tional state with respect to the slave trade. International law could no
longer be said to expressly authorize slave trading, as it had in the time of
Grotius. But neither did the law of nations prohibit the practice. Instead,
it was up to each country to decide, either through its own legislation or

T H E U N I T E D S TAT E S A N D T H E S L AV E T R A D E [ 65 ]
through ratification of treaties. This was where things stood as the new
Anglo-Spanish, Anglo-Portuguese, and Anglo-Dutch courts of mixed
commission got down to work thousands of miles away. Their work
would help turn international law away from its troubled past in sup-
porting and justifying the slave trade and toward the future of abolition.

[ 66 ] The Slave Trade and the Origins of International Human Rights Law
CHAPTER 4

The Courts of Mixed Commission for

the Abolition of the Slave Trade

THE SLAVE TRADE TRIBUNALS IN OPERATION

On the coast of Africa, the slave traders were acutely aware of the state
of the law, for their livelihood depended on it. News of the signing of
treaties between Britain and the Netherlands, Spain, and Portugal
quickly reached the slave coast, as did news when the treaty between
Britain and the United States had failed.
In 1820, soon after the first mixed commission treaties went into ef-
fect, the British commander of the African squadron, Commodore
George Collier, explained that “the knowledge the slaving masters have
of the treaties” meant that it had become difficult to catch ships of the
covered nations with slaves on board. At this point, the treaties allowed
only for the condemnation of ships that actually had slaves onboard at
the time of capture. In some instances, while British boats were
approaching slave vessels near the coast, the slavers quickly relanded all
their slaves on shore and then paraded them on the beach, compelling
them to “dance, and make every sign of contempt for the boats crews.”1
But challenges in capturing the slave ships, Collier explained, were not
the “only difficulties His Majesty’s naval officers have to surmount, as
every sort of objection has been urged even by the foreign Commissary
Judges against the condemnation of slave vessels.”2
In their first few months of operation, the new mixed courts frus-
trated the British captains to no end. At first, the courts were even
uncertain about what procedures they should use. For the first few
cases, they would not allow anyone to be present for most of the
proceedings—even the captain of the capturing ship. Moreover, they
refused to allow the parties to be represented by professional advocates
in the proceedings, insisting that each British captain present his case
personally and then wait around in port for the court to decide. This
was a major departure from the procedures used in normal admiralty
courts and provoked much outrage among the naval officers, particu-
larly since they could be held personally liable for damages in case of
wrongful capture.3 The procedures were not, in the view of the captains,
in conformity with the “law of nature and of nations.”4 Indeed, Commo-
dore Collier argued, these were “the most extraordinary of all courts of
justice I have ever heard or read of ” in operating secretly and not allow-
ing the parties to appear with representation.5 After a deluge of stren-
uous objections from the naval officers suggesting that the whole
scheme would be a failure unless more reasonable procedures were
adopted, the British judges persuaded their foreign colleagues to allow
the parties to be represented by advocates and to open their proceed-
ings so that both sides could participate.6
As challenging as it was to figure out the procedural rules, the sub-
stantive law proved just as troublesome. One of the earliest cases before
the mixed commission was that of the Dutch ship Eliza. In that case, the
slave captain had unloaded all the slaves but one by the time the British
gained control of the ship. The Dutch judge insisted that the ship was no
longer covered by the treaties, since they referred to ships with “slaves”
onboard, and therefore were inapplicable when there was only one slave
onboard at the time of capture;7 the British judge thought this was

[ 68 ] The Slave Trade and the Origins of International Human Rights Law
ridiculous. The judges drew straws to pick a third judge (the “arbitrator”)
to break the tie. A Dutch arbitrator was selected, but in this case he sided
with the British judge and found that the Eliza, even with only one slave
onboard at the time of capture, was subject to condemnation under the
treaties.8 This, unfortunately, was indicative of some of the troubles that
the courts would face throughout their many years of operation.
Under each of the treaties creating mixed commissions, one court
was to be set up in a British possession, and another in a Spanish, Por-
tuguese, or Dutch possession, respectively. Thus, courts were set up in
Freetown, Sierra Leone; Havana, Cuba; Rio de Janeiro, Brazil; and Suri-
name.9 Annexes to the treaties provided detailed regulations for the
courts, including the basic procedural rules under which the courts op-
erated, but as with modern international courts, their procedures
evolved over time in light of practical circumstances and as the treaties
were amended to close loopholes. Pursuant to the treaties, each nation
appointed a commissioner, sometimes referred to as the “commissary
judge.” Each nation also appointed a “commissioner of arbitration” or
“arbitrator.” These two officers were often collectively referred to as the
“commissioners.” Finally, the government of the territory in which the
court sat appointed a registrar, who acted as the court’s chief adminis-
trator and assisted in the taking of evidence.10
In the event that the two judges could not agree on the outcome
of the case, one of the two arbitrators would be selected by lottery to
cast the deciding vote.11 As it happened, on many occasions one or
more of the judges or arbitrators was absent. Due to the prevalence of
tropical diseases in the locations where the courts sat, it was not un-
common for the European officials to fall ill, and many died in the
course of duty.12 While Britain promptly replaced its fallen representa-
tives, many other nations did not, leaving very long stretches in each of
the courts when at least one and sometimes both of the non-British
slots remained vacant. For example, of the 109 cases heard by the Anglo-
Brazilian court at Sierra Leone, only twenty-eight were decided with

T H E C O U RTS O F M I X E D C O M M I S S I O N [ 69 ]
the participation of Brazilian judges, while the remaining eighty-one
were decided by British judges alone. Of the cases in which a Brazilian
judge was present, in eighteen the British and Brazilian judges agreed
on the outcome, while in the other ten, the judges did not agree and the
case was decided by the arbitrator. In each of these cases, the selected
arbitrator voted with the judge from his own nation.13 After some initial
confusion and controversy, the governments generally agreed that in
the absence of one or more officials, the courts should proceed with
whomever was present.14
The judges and arbitrators were not always lawyers.15 Sometimes they
held other public offices contemporaneously. For example, the governor
of Sierra Leone and other colonial officials were occasionally called
upon to serve as the British judge or arbitrator on the mixed courts after
the incumbent died and until a replacement could arrive from London.16
Pursuant to the treaties, ships of each nation’s navy were to be provided
with “special Instructions” entitling them to “visit such merchant Vessels
of the two Nations as may be suspected, upon reasonable Grounds, of
having Slaves on board.”17 The instructions were quite detailed, speci-
fying that the searches should be conducted “in the most mild manner,
and with every attention which is due between allied and friendly na-
tions.” To avoid insult, the search was to be conducted by officers of suit-
able rank.18 If the ship was in violation of the treaty, the captor had
authority to “detain and bring away such Vessels, in order that they may
be brought to trial before the Tribunals established for this purpose.”19
British naval vessels captured the vast majority of ships.20 In addition
to the overall commitment of the Royal Navy to the antislavery patrol,
individual officers had a financial incentive to capture slave ships since
they were entitled to a share of the prize money.21 In addition, many
captains of ships in the antislavery patrol were horrified by what they
found aboard slave vessels and pursued their duty with moral zeal. As
one British naval officer testified before Parliament of his experience on
boarding a slave ship:

[ 70 ] The Slave Trade and the Origins of International Human Rights Law
 [A] great many of the slaves had confluent small-pox; the sick had been
thrown down in the hold in one particular spot, and they appeared on look-
ing down to be one living mass; you could hardly tell arms from legs, or one
person from another, or what they were; there were men, women and chil-
dren; it was the most horrible and disgusting heap that could be conceived.22

Similarly, Captain Joseph Denman—an officer who spent many years

trying to influence the British government’s slave trade policies—
explained that he had become interested in suppression of the trade fif-
teen years earlier, when as a young lieutenant he was placed in charge of a
captured slave ship that had to be sailed first to Rio and then to Sierra
Leone for trial: “I was . . . altogether four months on board of her, where I
witnessed the most dreadful sufferings that human beings can endure. . . .
Those sufferings have given me the deepest interest in the subject.”23
Commodore George Collier similarly described his feelings upon the
capture of a Spanish ship, the Anna Maria, in 1821. “I feel I should ill
fulfill the duties falling upon me . . . if I did not describe the horrible state
which this vessel was in when visited by British officers,” he wrote.
Although the Anna Maria was a relatively small ship of under 200 tons,
she had “on board nearly 500 living souls!” Collier described “[t]he
intense heat and filthy state of the slave rooms (being only 2 feet 11 inches
high)” in which the captives were

[c]linging to the gratings to inhale a mouthful of fresh or pure air, and

fighting with each other for a taste of water, showing their parched
tongues, and pointing to their reduced stomachs as if overcome by fam-
ine. . . . [T]he crowded state of the vessel, the dirt and filth inseparable
from such a state, the sickening and desponding appearance of most of
the wretched victims, confined more loathsomely and more closely than
hogs brought to a morning market for sale, was so appalling and distress-
ing to our feelings.

T H E C O U RTS O F M I X E D C O M M I S S I O N [ 71 ]
The British officers had witnessed some of the enslaved passengers
throw themselves overboard and be eaten by sharks. This “maddening
act of self-destruction,” Collier explained, was not surprising given the
horror of the conditions on the ship.24
In each case, after determining that the ship under search was indeed
engaged in the illegal slave trade and fell within one of the treaties, the
commander of the capturing ship would typically place a junior officer
and a small prize crew onboard the captured ship to sail it into the near-
est port where a commission sat.25 Sometimes the captor would send its
ship’s surgeon aboard the captured ship to try to provide medical treat-
ment, or sick slaves might be taken aboard the captor ship to be treated
and to relieve overcrowding.26 In the case of the overcrowded Anna
Maria, for example, Commodore Collier “was obliged to order twelve
immediately to this ship to be placed under the care of the surgeon, and
the day following, one hundred more, to afford the rest the chance of
surviving the passage to Sierra Leone.”27 One British captain described
in horrifying terms his capture of a ship with 560 slaves: “I had to
remove the children on board of my own vessel; 200 of them,” who
ranged in age “[f]rom a few days old and upwards; some of them had
been born on board” and most were “suffering from dysentery.”28 If
many of the slaves were too sick to make the voyage at all, the sickest
would be landed at the nearest available port.29
Almost invariably, some of the slaves died between the time of cap-
ture and the time of adjudication.30 Once they arrived at the site of
the court, the slaves would often be kept onboard the ship while the
court decided the case, with often devastating consequences for the
health of the slaves if the adjudication were prolonged for any reason.
This provoked frequent concern on the part of the naval captains and
the commissioners alike. For example, Commander Keith Stewart of
HMS Ringdove sent one prize to Havana with a note imploring the
court to remove the Africans from the ship immediately; most of the
slaves were emaciated children between the ages of ten and fifteen, and

[ 72 ] The Slave Trade and the Origins of International Human Rights Law
Commander Stewart pronounced the ship “the most miserable craft I
ever saw in the shape of a slaver.”31 Although the treaties were not clear
on what should happen to the captives while the case was pending, the
British commissioners argued, “In such circumstances, the duties of hu-
manity have pre-eminence over every other object.”32 At Sierra Leone,
the judges would often successfully petition the colonial governor to
allow the slaves to disembark.33 Local governments in Havana and Rio,
however, generally did not allow the slaves to go ashore, viewing their
presence as a security risk.34 Eventually, the British stationed special
ships in the harbors of Havana and Rio to provide more humane
housing for the slaves during the pendency of cases before the courts.35
The treaties specified that cases should ordinarily be resolved in
twenty days.36 In reality, adjudication of cases took anywhere from a
few days to several months, with the court at Sierra Leone typically
working most efficiently.37 After the initial confusion about proce-
dures, cases typically proceeded in an orderly fashion using proce-
dures very similar to those employed in the national admiralty courts
of Britain. The proceedings began with the capturing officer turning
over the captured ship’s papers along with an affidavit describing the
circumstances of the capture.38 The registrar would then administer a
standard set of interrogatories to witnesses from both ships, recording
a summary of their responses.39 The ship’s captain and senior crew
were usually questioned. The slave crews lied under oath without
compunction. In one case, for example, they testified that “the men
slaves had been received as hired men to navigate the vessel, and the
slave boys as servants.”40 The court had little trouble rejecting this tes-
timony. The lengthy list of questions ranged from the identity of the
witness and how he came to serve on the captured ship to questions
about the ship’s owners, its course during the current voyage, the cir-
cumstances of capture, and whether any of the ship’s papers were
missing or destroyed.41 Only occasionally were the captive Africans
called upon to give testimony.42 The registrar would then turn over the

T H E C O U RTS O F M I X E D C O M M I S S I O N [ 73 ]
file of evidence to the two commissary judges, who were not generally
present at the initial examination of the witnesses.43 The “proctors”
(who were not always attorneys) representing the two parties would
then argue the case. On occasion, the judges might ask to hear further
evidence from one of the witnesses, or from an additional witness.
Many of the trials were quite summary in nature. For example, if a
Brazilian ship was caught on the high seas with slaves onboard, the
British and Brazilian judges would have little difficulty agreeing that it
should be condemned.44 Other cases presented more complex factual
and legal issues. For example, in many cases the courts had to deter-
mine the true nationality of a ship. Quite often—and in violation of the
law of nations—slave ships carried more than one flag and set of papers,
with the hope of deploying whichever seemed most expedient to avoid
seizure and condemnation. Thus, a slave ship might carry both French
and Portuguese flags, hoisting the Portuguese flag when a French man-
of-war appeared on the horizon (since no treaty authorized the French
to search Portuguese ships) and the French flag when a British or Por-
tuguese cruiser was spotted. Captain Henry John Leeke reported a
typical incident of this sort. After a chase, he boarded a schooner with
140 slaves onboard, but “being under French colours I could not detain
her, though I am satisfied that she was carrying on this disgusting traffic
for the Spaniards, having seen a paper to that effect on board her.”45
Leeke apparently did not think the case was strong enough to take to
court. But in many cases where the ship’s papers might seem irregular
or forged, the court would determine that the ship was for that reason
not entitled to the protection of the flag it claimed. In so doing, the
judges often drew upon the broader law of nations of the time period,
invoking doctrines from admiralty courts that based a ship’s entitle-
ment to a particular nationality on its ownership and course of trade
and not merely the papers it carried.46 The courts’ opinions were brief
but often included citations to precedents from the mixed courts or to
the decisions of British vice-admiralty courts. They were not published

[ 74 ] The Slave Trade and the Origins of International Human Rights Law
in separate law reports, though they did appear in annual printed
reports to Parliament.
The determination of the ship’s nationality was often dispositive of
the case, particularly during the years when the coverage of the various
treaties varied (e.g., during the years when the Anglo-Spanish treaties
were broader than the Anglo-Portuguese treaties).47 For example, from
1820 until 1842, the Portuguese treaty prohibited slave trading only in
the region north of the equator, while the Spanish treaty prohibited
slave trading both north and south of the equator.48 Similarly, the Span-
ish government agreed in 1835 to an amendment covering ships that
were equipped for the slave trade but that had not yet taken any slaves
onboard, while the Portuguese treaty was not amended to include an
“equipment clause” until 1842.49 Given the discrepancies between the
Portuguese and Spanish treaties, many trials turned on where precisely
the ship had been sailing before it was caught and whether it was really
Portuguese or Spanish.50
The trials also became factually more complicated after the treaties
were modified—first, to cover cases where there was evidence that
slaves had been onboard earlier in the voyage,51 and second, to cover
ships that were equipped for the slave trade but that had not yet boarded
their human cargo.52 In the first set of cases, the judges would base their
decision on the ship’s papers, testimony of witnesses, the circumstances
of capture, items found aboard the ship, and even the well-known stench
of a ship that had recently carried hundreds of slaves.53 In the “equip-
ment clause” cases, the court would examine evidence such as the pres-
ence of manacles and chains or wood planks for a slave deck, or the fact
that a ship was carrying much more food and water than necessary for
its crew.54 In some cases, the evidence of a ship’s illegal mission was
quite obvious, but in others it was less so, particularly as slave traders
became more sophisticated.
In simple cases, the judges usually were unanimous.55 When the
judges disagreed and an arbitrator was drawn, the arbitrator would

T H E C O U RTS O F M I X E D C O M M I S S I O N [ 75 ]
often agree with the judge from his own country,56 though occasion-
ally, the arbitrator would side with the judge of the other nationality.57
Many, though not all, of the non-British judges appear to have carried
out their duties honestly, if not always with great zeal.58 When the
British government complained to Brazil that its judge at Sierra Leone
was associating with slave traders, for example, the Brazilian govern-
ment responded promptly by removing him from office.59 British
officials praised one long-serving Spanish judge at Havana, though
some later judges in Havana were men who owned large slave planta-
tions.60 The courts’ decisions were final, and there was no system
for appeals.
The great majority of cases resulted in condemnation of the ships,
with the rates of condemnation highest in the courts at Sierra Leone
and lowest in the Anglo-Portuguese courts at Rio and Loanda,
Angola. At Sierra Leone, 485 ships were condemned, while twenty-
nine were released. In Havana, forty-eight were condemned and seven
were released, while at Rio twenty-five were condemned and fourteen
were released and at Loanda five were condemned and six were
released. All five cases at Cape Town resulted in condemnation.61 The
greatest disagreement among the judges seems to have occurred in
the Anglo-Brazilian courts at Sierra Leone and Rio, where the British
judges adopted a creative reinterpretation of the existing treaties to
cover ships equipped for the slave trade but not yet loaded with slaves.
Given that Brazil had refused to ratify a treaty amendment to that
effect,62 the Brazilian judges probably had the better legal argument.
If the court held that a ship should be condemned, the ship would
be auctioned off and the proceeds would be split between the two
governments.63 In later years, some ships were broken up and sold in
pieces to avoid being redeployed in the slave trade by the persons who
purchased them at auction.64 Some of the money was allocated to the
expenses of the courts, and a substantial portion of the rest was gener-
ally awarded as prize money to the captor.65

[ 76 ] The Slave Trade and the Origins of International Human Rights Law
 The crews of slave ships were generally made up of “suspicious and
dangerous characters,” some of whom were also engaged in piracy.66 The
mixed courts themselves had no criminal jurisdiction over them, but
the crews would occasionally be sent to the courts of their own country
for criminal trial.67 In other cases, they fled, were let go in port, or on a
few occasions were reportedly left stranded somewhere on the coast of
Africa.68 The emancipated slaves would be given certificates of freedom,
and their personal details (name, age, language, identifying marks)
would be recorded in a logbook.69 If, on the other hand, the judges
agreed that the ship had been wrongfully seized, they would allow it to
continue on its voyage with its human cargo. The judges had the power
to order the captor to pay compensation to the owner in such cases,
though depending on the circumstances, they did not always do so.70
While they were instructed to be mindful of their judicial character
and apply the law neutrally and fairly,71 the judges and arbitrators were
not independent in the modern sense. The Foreign Office in London
provided a great deal of guidance to the British judges in the field on
how they should carry out their business. The Foreign Office provided
regulations for the operation of the courts, including elaborate instruc-
tions on everything from the form of the captor’s affidavit to the oaths
for swearing in witnesses and the form for decisions.72 Officials in Lon-
don would provide detailed praise or criticism of particular aspects of
the commissions’ operations, from the speed of their operations down
to the color of the ink used in their correspondence.73 On occasion, the
Foreign Office would suggest that a particular decision involved an in-
correct interpretation of the law and urge the judges not to repeat the
mistake.74 For their part, the judges would from time to time request the
opinion of legal officials in London on a point of law.75 In a similar
manner, the non-British judges also took instructions from their own
governments.76
The courts were but one aspect of the highly coordinated British
effort to suppress the slave trade. The British judges in Cuba might send

T H E C O U RTS O F M I X E D C O M M I S S I O N [ 77 ]
the Foreign Office information about ships that had recently set sail for
the African coast equipped for the slave trade, which that office would
in turn forward to the commissioners in Sierra Leone.77 Similarly, useful
information received by the Foreign Office from the navy would be for-
warded to the judges, and vice versa.78 Reports from the courts would
be sent to British diplomats in various European capitals, and they
would be instructed to bring difficulties with the courts to the attention
of the partner governments.79 On some occasions, the commissioners
communicated more or less directly with naval captains, providing in-
formation about the rules for captures or sharing information about
slave vessels or notorious traders.80
Based on the volume of their correspondence on the topic, it appears
that the slave trade consumed an enormous amount of the time and at-
tention of the men who served as foreign secretary during the years of
the suppression effort, notably Viscount Palmerston and the Earl of
Aberdeen (both future prime ministers). The suppression of the slave
trade was an issue in British relations with almost every country and
often proved a source of diplomatic tension.81

THE COURTS IN OPERATION: IMPACT AND LIMITATIONS

The original courts created by the Anglo-Spanish, Anglo-Portuguese,

and Anglo-Dutch treaties began operations in 1819. These courts sat in
Sierra Leone, Havana, Rio de Janeiro, and Suriname. Over the years, new
treaties added new courts. Brazil agreed to sign onto the treaty regime in
1826 in exchange for recognition of its independence by Britain.82 Thus,
an Anglo-Brazilian court was added to the three courts already in Sierra
Leone, and the court in Rio was transformed into an Anglo-Brazilian
court.83 In the late 1830s and early 1840s, Chile, the Argentine Confed-
eration, Uruguay, Bolivia, and Ecuador also agreed to participate in the
mixed commission in Sierra Leone.84 In 1842, a new Anglo-Portuguese
treaty was signed and mixed courts were added in Luanda, Boa Vista,

[ 78 ] The Slave Trade and the Origins of International Human Rights Law
Spanish Town, and Cape Town.85 Finally, in 1862 the United States—
which had long resisted participation in the regime—agreed to the estab-
lishment of mixed courts in New York, Sierra Leone, and Cape Town.86
Of all the courts created by the treaties, the courts at Sierra Leone
were by far the most active, hearing more than 500 cases in total. Two
factors explain the Sierra Leone courts’ preeminence. First, the British
Royal Navy’s antislavery patrol was most active in the areas off the west
coast of Africa, where most of the slaves originated. Second, the com-
missions in Sierra Leone were strongly supported by the British colo-
nial government there, while the courts in foreign ports often received
only marginal support from the local government and faced outright
hostility from the public.87 The courts at Havana and Rio heard fifty and
forty-four cases respectively, and the remaining courts received only a
handful of cases.88 The belated Anglo-American courts never heard any
cases at all, though, as discussed below, that was more a measure of the
effectiveness of the Anglo-American treaty than its weakness, since the
slave trade was squelched in the immediate aftermath of the 1862 treaty.
The Sierra Leone courts led in terms of the number of slaves freed as
well. British logbooks show that the Sierra Leone courts emancipated ap-
proximately 65,000 slaves between 1819 and 1846.89 The Havana courts
freed some 10,000, and the Rio courts freed 3,000.90 Because the courts
eventually gained jurisdiction over ships equipped for the slave trade
even if no slaves were actually onboard at the time of capture, an unknown
number of other individuals were saved from slavery by the seizure off the
African coast of ships that had not yet been loaded with their unfortunate
human cargo. During the life of the commissions, at least 225 ships were
seized and condemned without slaves onboard. Given that between 1830
and 1850, the average cargo is estimated to have been approximately 400
slaves per ship, that would represent another 90,000 individuals, though
it is impossible without more sophisticated econometric analysis to esti-
mate how many of those would actually have been onboard the captured
ships or how many ended up embarking on other vessels instead.

T H E C O U RTS O F M I X E D C O M M I S S I O N [ 79 ]
 The courts were most active between 1819 and the mid-1840s.91
During their peak years of operation in the late 1830s and early 1840s,
an average of one out of every five or six vessels known to have been
engaged in the transatlantic trade was brought for trial in the courts of
mixed commission, with the highest annual percentage occurring in
1835 when some 39 percent of known slave ship voyages that departed
that year ended up in the mixed courts.92 Both before and after the
mixed courts’ peak years of operations, the British also tried a signifi-
cant number of captured slave vessels in domestic vice-admiralty courts.
Figures 4.1 and 4.2 give a rough indication of the number of slave
ship voyages that led to adjudications in the courts of mixed commis-
sion and vice-admiralty courts. These figures are based on information
from the annual reports of the British commissioners combined with
data from the new online revised version of the Trans-Atlantic Slave
Trade Database.93 The database contains information on close to 35,000
known slave-trading voyages, or more than 80 percent of all the esti-
mated transatlantic slave-trading voyages that took place during the
four centuries of the traffic. The data are even more complete for later
years for which better records exist.
Two cautions must be given with respect to these data. First, voyages
that ended up in adjudication—in either national or the mixed courts—
are likely overrepresented in the data, since court records were one of
the sources used to compile the database. Second, certain nationalities
of slave ships are likely overrepresented in the data because of differ-
ences in the quality and accessibility of historical records in different
countries. Nevertheless, for the purposes of this book, the quantitative
information amply demonstrates possible trends and rough estimates
of magnitude. More precise statistical analysis would involve complex
methodological issues and is well beyond the scope of this book.94
A few observations emerge from the available quantitative data.
First, during the mixed courts’ peak years of operation in the 1830s
and 1840s, it appears that they heard cases involving a significant

[ 80 ] The Slave Trade and the Origins of International Human Rights Law
 45%

40%

35%

30%
PERCENTAGE

25%

20%

15%

10%

5%

0%
1820 1825 1830 1835 1840 1845 1850 1855 1860 1865
YEAR

Figure 4.1. Percentage of Known Slave Voyages Adjudicated in Mixed Courts

400

300
NUMBER

200

100

0
1800 1810 1820 1830 1840 1850 1860 1870
YEAR

Total Number of Known Voyages

Number of Cases Tried in British Vice-Admiralty Courts
Number of Cases in Mixed Courts

Figure 4.2. Number of Known Slave Trading Voyages That Ended in Adjudication

[ 81 ]
percentage of the total transatlantic slave trade. Because voyages that
ended in adjudication are overrepresented in the Slave Trade Database,
the percentages in figures 4.1 and 4.2 are likely to be overestimates.
Nevertheless, the raw numbers and estimated percentage of cases sug-
gest that the courts made a substantial impact. Another general trend
that is apparent from the data is that, beginning in 1839, the British
shifted from use of the mixed courts back to the use of the domestic
vice-admiralty courts. The reluctance of Portugal and then Brazil to
continue to participate in the treaty system led to this shift, as discussed
further below.
In addition to the quantitative data, firsthand accounts from those
who actually participated in the treaties and court system provide evi-
dence about their impact on the slave trade. For example, in the late
1840s and early 1850s, the British Parliament engaged in a contentious
reexamination of the amount of energy and resources being devoted to
suppression of the slave trade. Special committees were convened in
both the House of Commons and the House of Lords; dozens of wit-
nesses appeared, giving thousands of pages of testimony.95
Not surprisingly, the witnesses gave conflicting opinions. Some tes-
tified that suppression efforts had increased the cruelty of the traffic by
inducing slavers to pack the slaves in more tightly and that it would be
better to relegalize and regulate the trade, while others argued that the
trade had always been cruel and the only humane course was to stamp
it out.96 Some witnesses and members of Parliament doubted whether
the decades of suppression efforts had made any difference at all.97 Wil-
liam Smith, who had served for several years between 1825 and 1834 as
a judge on the mixed court in Sierra Leone, testified gloomily of the
suppression effort, “I should say that it is a failure,” and he predicted
that no system was ever likely to succeed “because the demand for
slaves will always create a supply.”98 Commodore Charles Hotham—
who had commanded the African squadron from 1846 to 1849 but was
criticized for his ineffectiveness—testified that the slave trade could

[ 82 ] The Slave Trade and the Origins of International Human Rights Law
not be suppressed by any means he knew and suggested that it would be
more realistic to sign a new treaty with Brazil authorizing the trade for
a fixed period of time.99
On the other hand, many witnesses testified that the antislavery
treaties and Britain’s attempts to enforce them had made a difference.
Their views ultimately carried the day, when in March 1850 the House
of Commons voted 232 to 154 to reject a motion that would have called
for Britain to be “released from all the treaty engagements with foreign
states and from maintaining armed vessels on the coast of Africa to sup-
press the traffic in slaves.”100
In the months leading up to that critical vote, Foreign Secretary
Palmerston, a devoted abolitionist during his many years in office, testi-
fied before Parliament that but for the suppression efforts, the slave
trade would have “increased in a vast proportion,” and cheap slaves
would have been used to bring huge tracts of Brazilian land into cultiva-
tion.101 Palmerston estimated that over a ten-year period, the number of
slaves that might have been carried on ships captured without slaves
onboard was around 190,000.102
In addition to the ships that were actually captured and condemned,
the threat of capture made the trade more difficult and expensive, and
sometimes more inhumane, as slave traders were forced to take precau-
tions to evade capture. A wide array of sources indicates that the price of
slaves increased significantly during the years of the suppression ef-
fort.103 At times, increased suppression activity also reportedly increased
insurance costs and sometimes made insurance unavailable.104 In addi-
tion, some underwriters began including clauses in their insurance
policies exempting from insurance ships seized under the treaties.105
Individual participants in the suppression effort also testified to its
effects and its limitations. One witness, David Turnbull, was an ardent
abolitionist who served controversially as British consul at Havana
from 1840 to 1842 and then as a judge on the mixed court in Jamaica.106
He testified that, although he believed the treaties should be revised to

T H E C O U RTS O F M I X E D C O M M I S S I O N [ 83 ]
expand the power of the mixed courts, he felt that the existing system,
even with its weaknesses, had reduced the trade.107
Another witness, Captain Edward Butterfield, had served on the
coast of Africa in command of the Fantome, the Waterwitch, and the
Brisk—three of the fastest boats in the squadron—and had captured an
astonishing forty vessels between 1840 and 1842. He testified that he
was told by Portuguese merchants that he had captured at least three-
fifths of the slave vessels attempting to sail from that portion of the coast,
and he felt that the slave trade was much diminished by his frequent
captures.108 He noted that the slaves onboard the last ship he captured
had been kept in the barracoons for fourteen months because no slave
ships were able to sail from that port during his blockade. In one case he
boarded a legal merchant ship carrying slave traders back with their
families to Rio because they had given up the trade as unprofitable.109
Captain Christopher Wyvill, who had been stationed on the east
coast of Africa, testified that the trade had dramatically fallen off there
between 1844 and 1846 because of a treaty with local chiefs, the new
treaty with Portugal, and the presence of British cruisers.110 Likewise,
Captain Henry James Matson argued that the trade on the west coast
had decreased a great deal following the adoption of the equipment
clause with Spain in 1835. In response to skeptical questioning from
members of Parliament about the basis for his assertion, Matson
responded that he was relying on firsthand knowledge: “I think there
are facts to prove the opinion. I was on the coast during the whole of
that time, or very nearly so.”111
In response to questioning about whether the possible additional
suffering of slaves on the Middle Passage made the suppression effort a
net negative from a humanitarian perspective, several witnesses asserted
that any such negative had to be weighed against the enormous benefit
in terms of individual lives saved from slavery.112 Such a view is rein-
forced by paging through the courts’ logbooks of tens of thousands of
freed slaves, with names, ages, and descriptions. These were real people,

[ 84 ] The Slave Trade and the Origins of International Human Rights Law
and their lives were made at least a little bit better because of the efforts
to enforce the international treaties against the slave trade. In sheer
human impact, no other international court has directly affected so
many individuals. Indeed, regardless of whether or not the mixed courts
were “successful” in terms of their impact on the overall transatlantic
slave trade, they were successful in their impact on the nearly 80,000
individuals who were granted their legal freedom by the courts.
Still, even the witnesses who supported continuation of the effort
recognized that the slave trade had not been suppressed despite forty
years of struggle and a vast expenditure of resources. These witnesses,
along with more hostile witnesses, identified a number of weaknesses
and limitations in the system.
The first major weakness in the treaty regime was the lack of partici-
pation by two of the most significant naval powers of the time, France
and the United States. France never agreed to the mixed courts at all.
Although it signed a treaty with Britain agreeing to mutual search rights
in 1831, the treaty provided that ships were to be tried in the courts of
their own nation.113 The United States eventually joined the interna-
tional mixed court system, but not until 1862.114
Though the absence of both France and the United States from the
mixed courts regime for most of the courts’ existence hindered their
effectiveness, it did not prevent a substantial portion of the trade from
being suppressed. By the 1830s, the importation of slaves into the
United States and into French possessions in the Caribbean had been
effectively squelched by domestic authorities, and the major remaining
trade was to Cuba and Brazil.115
Trade to Cuba and Brazil by slave traffickers using the French or
American flag was intermittently a serious problem, though agreements
with the United States and France that stopped short of participa-
tion in the mixed courts helped ameliorate the situation. In 1831,
France and Britain concluded a treaty granting mutual rights of
search, though it provided for captured ships to be turned over to their

T H E C O U RTS O F M I X E D C O M M I S S I O N [ 85 ]
own governments for trial. With the adoption of this treaty and the
prospect of capture by both British and French warships, the French
flag was no longer particularly attractive to slave traders. After 1831,
the number of ships sailing under the French flag was relatively insig-
nificant. It remained so even after the right of mutual search was
rescinded in 1845 due to domestic political pressure in France and
replaced with a new treaty committing France to maintain a certain
number of its own warships off the coast of Africa.116
As noted previously, negotiations between Britain and the United
States fell apart following the Senate’s unsuccessful attempt to modify
the 1824 treaty.117 Diplomatic efforts continued without success in the
1830s, when the United States was repeatedly invited to join the treaty
with France and Britain but declined to do so.118 Notwithstanding these
facts, in the late 1830s and early 1840s, the Anglo-Spanish mixed court
at Sierra Leone actually condemned a number of American-flagged
ships on the grounds that they could be treated as Spanish under the
law of nations, a move that elicited surprisingly little reaction.119 More-
over, by the late 1830s, the Americans had sent several patrol ships to
Africa. The commander of the American naval squadron on the west
coast of Africa and the British commander in the region were able to
work together in a way their governments could not. An informal
agreement between the two commanders on the scene led to a period
of joint patrol. Under the agreement, American ships that came upon a
slave ship covered by one of the British treaties would hand it over to
the nearest British ship, while a British vessel that found a slaver flying
the American flag would deliver it to the closest American warship.120
During a brief period of confusion, British naval captains even brought
captured American-flagged slave ships into American ports, where they
were sometimes condemned by U.S. courts.121 In two notable cases in
1839—those of the Eagle and the Clara—the U.S. government refused
to exercise jurisdiction over two American-flagged ships captured by
the British and brought to New York, based on the conclusion of the

[ 86 ] The Slave Trade and the Origins of International Human Rights Law
American attorney general that the ships were actually Spanish. The
cases were then submitted to the mixed court at Sierra Leone, which
issued orders of condemnation.122
This period of informal cooperation was short lived. A combination
of disease and lack of support on the home front hampered the Ameri-
can squadron in its patrols of the African coast.123 The U.S. government
eventually disavowed the informal agreement between the navies in
1841,124 and U.S. courts began refusing to condemn ships captured by
the British. Diplomatic protests by the United States about the board-
ing of American ships led to a crisis in U.S.-British relations, with the
Americans claiming the policy was “alarming to national sovereignty
and sensibility, and the friendly relations of the two countries.”125 After
several months of tense correspondence,126 the government in London
ordered British naval officers to be more deferential to American-
flagged ships.127 In 1842, the Webster-Ashburton Treaty between the
two countries committed the United States to maintaining an antislav-
ery squadron on the African coast but did not include a right of search
or any provision for trial in mixed courts.128
The U.S. government did engage in reasonably vigorous efforts to
suppress the slave trade at various times, notwithstanding the delicate
status of slavery in American politics and the nation’s reluctance to
enter into slavery-related treaties that it viewed as an infringement of its
sovereignty or the freedom of the seas. Some 103 slave ships were cap-
tured by the U.S. Navy and brought for trial in U.S. courts between 1837
and 1862, most of them in the years after 1842. The fact that U.S. law
classified the slave trade as piracy subject to the death penalty also
deterred use of the U.S. flag. Criminal proceedings were brought against
more than 100 individuals in U.S. courts, though relatively few of these
cases resulted in convictions, and the death penalty was actually imposed
in only one case.129
At the same time, however, one notable weakness in American law
was the fact that for many years it was not interpreted to cover ships

T H E C O U RTS O F M I X E D C O M M I S S I O N [ 87 ]
equipped for the slave trade but without slaves on board. Because of
this loophole, it was reportedly a common practice for ships to sail into
the African coast under the American flag (thereby evading capture by
the British). They would then change their colors to those of another
nation once slaves were actually taken onboard, to avoid possible cap-
ture and prosecution by the Americans.130
British officials involved in the slave trade suppression effort gener-
ally agreed that full participation in the treaty and mixed court system
by the United States and France would have been advantageous, but
many contemporaries did not view those countries’ participation as in-
dispensable. When a member of the House of Commons asked Lord
Palmerston whether the consent of France and America to mutual
rights of search was essential to successful suppression of the trade,
Palmerston answered, “My opinion is, that if the Spanish government,
and if the government of Brazil, would honestly and effectually fulfill
their treaty engagements . . . the slave trade would be practically
extinct.”131 France, Palmerston argued, was effectively enforcing the
slave trade ban against French-flagged ships.132 Treaties had been con-
cluded with native chiefs in Africa that gave England and France the
right to enforce the slave trade ban in the chiefs’ territories.133 As for the
United States, he contended, “I do not conceive that the mere refusal of
the United States to concur in mutual right of search would, of itself, be
sufficient to defeat the naval police if all other nations had united in the
common league.”134 Even without the cooperation of the United States,
the slave trade to Brazil and Cuba could be brought “to a very narrow
limit indeed.”135
Palmerston was certainly correct as to Brazil. As it happened, the
traffic to Brazil was effectively suppressed by the Brazilian government
itself (under pressure from the British) beginning in 1850, notwith-
standing the absence of the United States from the mixed court regime
until 1862. The available data on the usage of particular flags in the slave
trade also suggest that claims about the heavy use of the French and

[ 88 ] The Slave Trade and the Origins of International Human Rights Law
American flags in the later years of the slave trade were somewhat exag-
gerated. Figure 4.3 reflects the available data on the national registra-
tion of ships involved in the slave trade from 1815 to 1865. Of course,
data about the flag used are unavailable for many voyages, but the over-
all trends shown in the figure are likely to be accurate.136
Despite the changes to the international legal regime that made these
other flags less attractive, the French flag does not appear to have been a
substantial part of the trade after 1830. Nor does the American flag ap-
pear to have accounted for a dominant portion of the traffic between
1830 and 1850, though it is difficult to say how commonly ships used
the flag on the inbound portion of the voyage to Africa.137 During these
years, the dominant preference of the slave traders under increasing
pressure seems to have been to shift to no flag at all. Although a ship
flying no flag could be boarded, from the slave traders’ perspective, the
advantage of this approach may have been to avoid susceptibility to
criminal punishment under the law of their “home” country.138
As discussed more fully below, the participation of the United States
in the mixed courts regime was more critical to the suppression of the
slave trade to Cuba, which lies a mere ninety miles from Florida. After a

200

150
NUMBER

100

50

0
1820

1825

1830

1835

1840

1845

1850

1855

1860

1865

YEAR

Portuguese Brazilian Spanish

French United States

Figure 4.3. Known Voyages by Nationality of Ship’s Registration

T H E C O U RTS O F M I X E D C O M M I S S I O N [ 89 ]
sharp decline in the late 1840s, the trade to Cuba began to increase
again in the 1850s. Unflagged and American-flagged ships dominated
this final period of the trade.
It is possible that even without the American treaty, the trade to
Cuba could eventually have been suppressed by Cuban authorities
acting against slave markets on shore in much the same way it was fi-
nally suppressed in Brazil. But in 1862, the United States finally ratified
the treaty with Britain granting the right of mutual search and establish-
ing mixed courts at New York, Sierra Leone, and Cape Town.139 This
ratification appears to have been part of the catalyst for the final sup-
pression of the trade to Cuba. Ratification of the treaty eliminated the
final “safe” flag under which slavers could sail and triggered more active
enforcement by Cuban authorities who began to see the end of the
trade as inevitable. To put it somewhat differently, the Brazilian case
shows that the participation of the United States may not have been a
necessary part of the suppression of the slave trade. But the Cuban case
shows that the participation of the United States in the treaty regime
was likely sufficient to end the trade.
Other loopholes in the treaties also created serious impediments to
the courts’ effectiveness. For example, one significant loophole was the
exclusion from the courts’ jurisdiction of certain types of ships, such as
ships that were traveling in some parts of the ocean or that did not actu-
ally have slaves onboard at the time of capture.
The case of the Maria da Gloria provides one good example of such
loopholes in action. A British ship captured the Maria da Gloria with
more than 400 slaves onboard, but the mixed court at Rio de Janeiro
rejected the case on the grounds that the ship was Portuguese, not Bra-
zilian. Transported back across the Atlantic by a prize crew, the mixed
court at Sierra Leone reluctantly concluded that the ship was immune
from condemnation because it was seized south of the equator, where
the slave trade was arguably still permitted by the Portuguese treaty.
The case had a profound impact on the captain of the British prize

[ 90 ] The Slave Trade and the Origins of International Human Rights Law
crew, Joseph Denman, who, as mentioned previously, became an
ardent abolitionist because of his experiences onboard the Maria da
Gloria.140 The case also left a strong impression on the judges at the Si-
erra Leone court. With some dismay, the British judges wrote to Vis-
count Palmerston:

Although it has been our duty as Judges to restore the “Maria da Gloria,”
we cannot forbear expressing to your Lordship our deep regret on wit-
nessing the sailing of that vessel with her cargo of unhappy beings, des-
tined to another miserable voyage across the Atlantic. As men, our
feelings have been greatly distressed.141

The judges expressed their hope that the case would enable the British
government to conclude a new, more effective treaty with Portugal that
covered traffic sailing in all latitudes.142 Viscount Palmerston himself
was also upset by the case, writing to the British diplomats in Lisbon in
regard to the Maria da Gloria’s claim for damages against its captor that
“[t]he Claimant was engaged in a proceeding that was in violation of the
laws of God and man; it was undertaken in fraud, and defended by per-
jury; and he escaped the punishment due to his crime, not because he
did not deserve to suffer it, but because he was found in a place, where,
under the strict letter of the Treaty, he was not liable to be detained.”143
In addition to the exclusion of Portuguese ships sailing south of the
equator, the other significant initial loophole in the treaties was the lack
of authority to condemn ships that were equipped for the slave trade but
that had not yet taken slaves onboard. The Netherlands had readily
agreed to such a clause, but since the Dutch flag was not used much in the
trade after 1817, this was not a significant development. The British
judges at Sierra Leone repeatedly urged their government to negotiate
for an equipment clause with Spain and Portugal and viewed such a
clause as vital to the courts’ success.144 Although Spain resisted for several
years, it finally agreed in principle to a revision of the treaty in September

T H E C O U RTS O F M I X E D C O M M I S S I O N [ 91 ]
1834, and the treaty was signed on June 28, 1835, although news of it still
had not reached the Spanish officials in Havana by January 10, 1836.145
As figure 4.3 suggests, after the equipment clause was adopted, traffic
under the Spanish flag decreased noticeably.
Despite strong encouragement from the British, Portugal would not
agree to a new treaty including an equipment clause, and this reluctance
proved a serious barrier to suppression efforts.146 As figure 4.3 indicates,
the adoption of the Spanish equipment clause in 1835 coincided with a
remarkable uptick in the trade under the Portuguese flag. Although the
trade as a whole was increasing during these years and other factors may
have played a role in the increasing use of the Portuguese flag, the trend
is noticeably correlated with, if not verifiably caused by, the change in
the Spanish treaty. Trade under the Portuguese flag only decreased
when, in 1839, Britain attempted to close the loopholes by unilaterally
seizing Portuguese ships under a creative reinterpretation of the 1817
treaty. In response, in 1842, Portugal finally agreed to a new, compre-
hensive treaty.
The equipment clause loophole in the Brazilian treaty was closed not
by treaty amendment but by judicial initiative. Although the Brazilian
legislature had failed to ratify the equipment clause amendment, in
1839, the Anglo-Portuguese courts in both Rio de Janeiro and Sierra
Leone independently began condemning ships equipped for the slave
trade under a creative reinterpretation of the existing treaties. Although
the Brazilian judges objected to this reinterpretation, the practice soon
became settled and a large number of Brazilian ships were condemned
simply for being equipped for the slave trade, occasionally with the con-
currence of a Brazilian judge but more often with the toss of the coin
choosing the British arbitrator to break the tie if the British and Brazil-
ian judges disagreed.147
Some participants in the system believed that the courts would have
been more effective if, in addition to closing the loopholes in the sub-
stantive coverage of the treaties, the courts were granted additional

[ 92 ] The Slave Trade and the Origins of International Human Rights Law
powers, including the ability to punish criminally slave ship crews and
owners and the ability to declare slaves found on plantations in Cuba
and Brazil free unless it could be proven that they had not been imported
illegally.148 While perhaps desirable, these additional powers were not
within the realm of diplomatic plausibility. In the later years of the courts’
operation, however, the governments agreed that the courts at least had
the power to detain captured slave crew members until they could be
turned over to their own nation for criminal prosecution.149 Rather than
leading to more prosecutions, however, this practice may simply have
increased the incentives for slavers to claim no nationality at all.
But the most serious impediment to the success of the mixed court
system was the reluctance of Spain, Portugal, and Brazil to enforce
strictly the ban on the slave trade. This lack of cooperation was not prin-
cipally manifested in the behavior of the mixed court judges from those
countries, although these judges did sometimes vote to acquit, espe-
cially in the commission at Rio de Janeiro.150 To the contrary, the Brit-
ish judges often spoke quite favorably of their colleagues. Upon the
death of a Brazilian judge who had served for six uninterrupted years in
Sierra Leone (during which time admittedly few cases were heard), the
British commissioners wrote to London that “his public conduct was
marked by a spirit of courtesy and conciliation towards his colleagues
in office, with whom he at the same time lived privately on terms of in-
timacy and friendship.”151
The British judges at Havana spoke of some of their Spanish col-
leagues in similarly favorable terms, in one early case noting that “the
most perfect unanimity prevailed during the whole of the proceedings;
and that my Spanish colleagues continued to manifest the same zeal to
uphold the dignity and authority of the Court, which I before stated
they had displayed at the commencement.”152
Nor was the main problem outside pressure on the courts, though
the mixed courts at Rio de Janeiro and Havana did sometimes face
threats stemming from popular opposition to their work. For example,

T H E C O U RTS O F M I X E D C O M M I S S I O N [ 93 ]
in Rio, one individual who had acted as a proctor for British captors in
a number of cases was threatened that should he be involved in any
more cases, he would be “waylaid and murdered.” As a result, the cap-
tors were left without “professional assistance” in prosecuting their
cases because he had abandoned his work out of fear.153 Although these
threats sometimes slowed the courts’ proceedings, local authorities
took sufficient measures—albeit sometimes reluctantly—to protect
the physical safety of the courts and the threats do not appear to have
seriously hampered their functioning.
In terms of lack of cooperation, the far more serious problem was the
unwillingness of the Spanish, Portuguese, or Brazilian governments to
engage in any meaningful enforcement of domestic laws against the
slave trade by preventing the landing of slave ships, blocking the sale of
imported slaves, or criminally prosecuting those involved. Though laws
against the slave trade were on the books in all these countries, there
was no intent to enforce them. Indeed, even today Brazilians describe
laws that will never be enforced as “laws for the British.”
Viscount Palmerston, British naval officers, and British officials in
the field all believed that the governments of Cuba and Brazil could
end slave importations if they wanted to by taking these measures.154
It turned out that they were correct, for once each of these countries
finally began enforcing its domestic laws, the slave trade was finally
and successfully extinguished. Changes in attitudes that led to the en-
forcement of laws against the slave trade in Brazil and then later Cuba
were essential to the final suppression of the trade.
When the treaties were first signed, it was not initially obvious how
essential the cooperation of local officials in Cuba and Brazil would be
to the successful suppression of the slave trade. By giving the British the
power to search, seize, and condemn slave ships in international courts,
the treaties seemed to embody strong international enforcement mech-
anisms. These powers were unprecedented at the time and have been
unmatched in human rights treaties and international courts created

[ 94 ] The Slave Trade and the Origins of International Human Rights Law
since then. But as robust as these powers were, and as much energy and
expense as the British devoted to the effort, the oceans were vast, and
the most vulnerable part of the slave trade system turned out to be the
point of sale in the Americas. Just as modern efforts to interdict drugs
on the high seas are unsuccessful when uncoupled from effective en-
forcement on land, naval enforcement alone was unlikely to end the
slave trade.
The correspondence from British officials in Brazil and Cuba is filled
with complaints about the supineness and outright corruption of local
authorities, who turned the other way when slave ships landed and auc-
tioned off their cargos. When the new captain-general of Cuba assured
the British diplomats in Havana that he was determined to enforce the
antislavery treaties, Viscount Palmerston was skeptical:

No doubt can be entertained that he has a power of putting a stop to it if

he will: if the Cuba Slave Trade has ceased, General Valdes will have
proved himself sincere: if that trade still continues, he will have demon-
strated that his professions are all as hollow and valueless as those of all
his predecessors.155

For many years, port officials in Havana would clear for departure ships
obviously equipped for the slave trade.156 The tolerance of local govern-
ments for the slave trade was so great that until very late in the game,
slave traders who safely escaped British patrols on the high seas and
reached the territorial waters of Cuba and Brazil engaged in only token
efforts to conceal their illegal activities. In 1836—more than fifteen
years after the Spanish treaty took effect—British officials were out-
raged but not surprised by the appearance in one Havana newspaper of
an advertisement for the open sale of newly imported Africans.157
In response to continual complaints from British diplomats, the
other governments would engage in denials and token responses. For
example, when the British commissioners at Havana reported that the

T H E C O U RTS O F M I X E D C O M M I S S I O N [ 95 ]
Portuguese consul there was granting papers to slave vessels, the British
complained to the Portuguese government in Lisbon, which revoked
the consul’s authority and declared invalid documents furnished by
him.158 Yet such minimal, occasional efforts to sanction participants in
the slave trade were little more than meaningless gestures. For many
years, the other governments did not deploy significant numbers of
their ships in suppression efforts even in their own territorial waters.159
Their national courts often did not condemn ships obviously engaged
in the slave trade,160 and slave traders brought in for criminal trial were
routinely acquitted.161
The occasional faltering in domestic support within Britain for the
slave trade suppression effort also limited the courts’ effectiveness.
More than sixty years elapsed from the moment Britain banned the
slave trade under its flag in 1807 until the trade as a whole was finally
extinguished. Understandably, domestic political interest and support
for the effort waxed and waned over the decades, and with it the re-
sources and attention devoted to crafting the most effective policies for
suppression. As noted previously, this simmering debate reached a cri-
sis point when, from 1848 to 1850, Parliament engaged in almost con-
tinuous hearings and discussions about whether to stay the course in
suppressing the slave trade or to abandon the system of treaties and
courts backed with naval power. One political faction, which included
some abolitionists who opposed all use of military force because of
their Quaker beliefs, wanted to withdraw the African squadron from its
antislavery patrol and even withdraw from the antislavery treaties.162
Another faction wanted the government to redouble its efforts at sup-
pression of the trade.
In addition, hard-learned lessons about which tactics were effective
were sometimes lost due to changes in personnel in the British Foreign
Office and the admiralty, changes made both for simple administrative
reasons and because not all officials were equally committed personally
to the cause of abolition. When officials committed to abolition were

[ 96 ] The Slave Trade and the Origins of International Human Rights Law
replaced by officials who were less enthusiastic, treaty enforcement
often became less effective.
The Gallinas expedition in 1840 is one prime example. The provoca-
tion for the expedition was the kidnapping of a free African woman and
her infant, both of whom were British subjects at Sierra Leone. With the
support of the British governor there, Captain Denman of the HMS
Wanderer went ashore at Gallinas to rescue the woman. Having done so,
he induced the local chief to sign a treaty banning the slave trade and
enlisted the chief and his men in burning the Spanish slave traders’
storehouses.163
When news of Captain Denman’s endeavor spread, two other British
captains then undertook similar actions elsewhere on the African coast.
Initially, London reacted positively: the admiralty granted Denman a
promotion, and Parliament gave him a reward of £4,000. Foreign Secre-
tary Palmerston wrote that “[t]he course pursued by Captain Denman
seems to be best adapted for the attainment of the object in view” and
encouraged other captains to follow his example.164 The initial reaction
by the slave traders was dramatic as well. The slave trade in that region
of the African coast dropped precipitously,165 and word of the incident
quickly reached as far as Cuba, where slave traders viewed the new tac-
tics as a serious threat to their livelihood.166
But a few months later, the Earl of Aberdeen replaced Viscount Palm-
erston as foreign secretary. Aberdeen was more conciliatory toward for-
eign powers and more legalistic, and he circulated a letter stating that
the queen’s legal advisers believed such raids to be illegal under interna-
tional law.167 News of Aberdeen’s letter and the change in policy also
reached the slavers quickly, and the trade resumed.168 New and inexpe-
rienced officers on the African coast began engaging in safer, but less
effective, distant offshore patrols.169 One of the Spanish slave traders
whose slaves Denman had liberated and whose warehouse he had
burned sued Denman in a British court for an astonishing £180,000.
The court eventually ruled in Denman’s favor, but not until 1848.170 The

T H E C O U RTS O F M I X E D C O M M I S S I O N [ 97 ]
queen’s advocate then issued another opinion stating that such raids of
onshore barracoons were lawful when authorized by a treaty with the
local chief, which Denman’s raid had been. British captains in the Afri-
can squadron then began entering into new treaties with local chiefs
and pursuing such raids again, but several years had been wasted in the
interim.171

[ 98 ] The Slave Trade and the Origins of International Human Rights Law
CHAPTER 5

Am I Not a Man and a Brother?

T
he mixed commissions had a dramatic human impact in
terms of the number of people directly implicated by their
work. As noted earlier, more than 80,000 men, women, and
children were legally granted their freedom by the courts in some 600
cases—an astonishing number in comparison to contemporary inter-
national courts. (The International Court of Justice, for example, has
only heard some 120 contentious cases in its more than sixty years of
existence.) But the voices of these individuals are curiously absent from
the courts’ proceedings. Only occasionally did they give testimony as
witnesses. They were not directly represented in the trials. And while
the slave trade is sometimes described as violating “human rights” in
documents from the nineteenth century, the slaves themselves rarely
appear in any legal proceedings as claimants of rights. Instead, they are
silent bystanders—beneficiaries of the system, to be sure, but hardly
active participants in it.
Given these limitations, what can we glean about the impact of the
slave trade tribunals on their intended beneficiaries? In the British
colony at Sierra Leone, the slaves emancipated by the mixed courts
seem to have fared no worse (though also no better) than the rest of
the large population of free Africans. A few of the emancipated Africans
were employed as messengers and clerks by the court,1 while the rest
took their place as ordinary laborers in the colony. Thus, as long as they
remained in British-controlled territory near Sierra Leone and were
not recaptured by slave traders, the 65,000 Africans freed by the mixed
courts at Sierra Leone actually received some of the benefit of their
freedom.
The several thousand emancipados in Cuba and Brazil, however, were
“virtually slaves” kept in repeated apprenticeships.2 No money was
available to pay to return those freed by the courts to their homes in
Africa, and, in these slaveholding societies, free Africans were often in a
precarious position. In Brazil, the emancipated slaves were hired out as
apprentices, many employed by the government itself.3 At first, it was
reported that they were “well treated, and not overworked.”4 Eventually,
it became clear that this was not the case, and the Brazilian government
established a commission of inquiry in Rio to investigate allegations of
mistreatment of emancipados.5
In Havana, a number of emancipados who had been effectively
reenslaved in the hands of private individuals were forced to seek the
help of the British government in obtaining their freedom.6 In one par-
ticularly poignant case, the British consul in Havana helped rescue from
slavery a woman who had been granted her freedom by the mixed com-
mission, along with her ten-year-old daughter. The British consul in
Havana at that time, David Turnbull was, as noted in the preceding
chapter, a controversial figure.7 Turnbull had apparently become inter-
ested in the slave trade while working as a reporter for London’s Times
newspaper in Madrid in 1835 during the negotiations over the revised
Anglo-Spanish slave trade treaty.8 In 1837 and 1838, he traveled
throughout the West Indies, a journey he chronicled in his book Travels
in the West, which described the cruelty of slavery in the plantations of
Cuba and elsewhere and argued for stronger measures against the slave
trade.9 Among other things, Turnbull suggested that the courts of mixed
commission should be given the power to order the freedom of any

[ 100 ] The Slave Trade and the Origins of International Human Rights Law
slave in Cuba or Brazil based on a determination that he or she had been
illegally imported.10 This, he argued, would be simple factually since it
was easy based on language and other characteristics to distinguish
slaves who had been born in Africa from those who had been born in
the Americas. The British and Foreign Anti-Slavery Society became in-
terested in Turnbull’s proposal, particularly since it emphasized legal
rather than forceful means for suppressing the trade.11 Turnbull pre-
sented his proposal at the world Anti-Slavery Convention of 1840,
which brought together abolitionists from both sides of the Atlantic.
Though some at the convention were initially skeptical of Turnbull’s
proposal, believing that it did not go far enough toward immediate and
total abolition of slavery itself, eventually the convention voted its sup-
port for his proposal for expanding the jurisdiction of the mixed
courts.12 The suggestion was taken seriously by the British government,
and Lord Palmerston ordered the preparation of a draft treaty that
would encompass such powers, although he acknowledged, “It is not
very likely that we shall persuade the Spanish Government to accede.”13
Palmerston was, of course, correct—in the end, the Spanish would
flatly reject the proposal.
In the meantime, with the support of the Anti-Slavery Society, Turn-
bull began a campaign to get himself appointed as British consul to
Havana. Palmerston agreed to appoint him to the post, but Turnbull’s
stay in Havana proved short lived and extraordinarily contentious. His
zeal annoyed even his British colleagues in Havana. Turnbull, along
with the Anti-Slavery Society, had successfully lobbied Palmerston to
adopt a policy prohibiting British officials from having any interest in
slave property.14 As a result of this policy, Turnbull almost immediately
became involved in a squabble with Kennedy, the British commissioner
on the slave trade tribunal in Havana, because Kennedy was in the habit
of hiring slave labor.15 Worse still from his colleagues’ perspective, Turn-
bull sought the removal of the mixed commission’s British clerk, a man
named Jackson, whom Turnbull accused of having owned slaves and

A M I N OT A M A N A N D A B R OT H E R ? [ 101 ]
having punished emancipado servants “‘after the manner of the Coun-
try.’”16 More substantively, Turnbull and the British civil servants
working on the mixed commission ended up fighting over the scope of
their respective duties, with the commissioners feeling that Turnbull
was encroaching on areas under their jurisdiction.17
But the reaction of his fellow countrymen was nothing compared to
the reaction of the Spanish. The Spanish government described Turn-
bull as a “fanatical abolitionist” and asked for his removal almost as
soon as he was installed in office,18 a demand they repeated with in-
creasing stridency throughout his stay there.19 They finally succeeded in
driving him from the country in 1842, but by then he had stirred up
quite a lot of drama in Havana.20
During his short stay in Cuba, Turnbull played a central role in sev-
eral incidents concerning empancipados who had been deprived of their
freedom.21 One such incident involved a man named Gavino, who was
emancipated by the slave trade tribunal in Havana in 1821. According
to Turnbull, Gavino had been assigned to a master for renewed five-year
periods, during which he had been treated as a slave, and he had never
received wages.22 The captain-general of Cuba was hostile to Turnbull’s
efforts to intercede on behalf of Gavino and other empancipados, and he
threatened to expel Turnbull from the island.23 The British government
defended Turnbull’s actions—apparently not having yet realized how
much of a liability to them he would become—and the British ambas-
sador in Madrid demanded from the Spanish government the “imme-
diate freedom of all the negroes, who have been emancipated in Cuba
by sentence of the Mixed Commission since the Treaty of 1817, but
who appear hitherto to have been retained in practical slavery by the
authorities of Cuba.”24 Since the colonial government officials in Cuba
seemed unable to protect the freedom of the emancipados, the British
suggested that everyone on the lists of the mixed commissions be
brought before the court again and given the opportunity to be put
under the protection of the British Superintendent of Liberated Africans

[ 102 ] The Slave Trade and the Origins of International Human Rights Law
and sent to British colonies “where they would by law as well as by
treaty be free.”25 The Spanish viewed this proposal as a reflection of Brit-
ain’s insincerity in opposing the slave trade on humanitarian grounds
and its secret desire to bolster the labor forces in its own colonies.
Turnbull’s encounter with the emancipada named Matilda and her
daughter Isabel Marina was even more dramatic. Matilda had arrived in
Cuba onboard the Spanish schooner Xerxes in 1827 and had been
granted her freedom by the mixed commission. Little about Matilda’s
life story remains, but she was born in West Africa among the Caravali
people;26 the term Caravali was apparently applied by European traders
to several different ethnic groups from areas near the ports of Elem Kal-
abari and Old Calabar in what is now Nigeria, and who likely spoke the
Igbo language.27 It is likely that she was captured in or near her home
village and sold to a local slave dealer before reaching one of the barra-
coons, or slave forts, on the River Bonny in the Niger delta. The Spanish
schooner Xerxes picked up its cargo of slaves somewhere on the River
Bonny in May 1828, and Matilda was one of the unfortunate captives
loaded onto the ship.
The British commissioners in Havana first mentioned the schooner
Xerxes in their reports to the Foreign Office in February 1828, when
they included that ship on a list of ships engaged in the slave trade that
left Cuba bound for Africa, lists that were then sent to the admiralty and
on to ship’s captains so they could be on the lookout for the illicit voy-
ages.28 But the Xerxes had eluded British patrols on the African coast
and was returning to Havana when the British caught it almost by acci-
dent. Admiral Fleeming of the Royal Navy had ordered the HMS Grass-
hopper, under Commander Abraham Crawford, to patrol in Los
Colorados, the barrier reefs on Cuba’s northwest coast that were said to
be a haven for pirates. It was there that the HMS Grasshopper came
across the Xerxes on its approach to Cuba. The Xerxes was heavily
armed, with an eighteen-pound cannon, four other guns, sixty-six small
firearms, and sixty swords.29 The Grasshopper began a twenty-six-hour

A M I N OT A M A N A N D A B R OT H E R ? [ 103 ]
chase that finally ended in the middle of the Gulf of Mexico, where the
British crew succeeded in capturing the Spanish ship with its crew of
forty-four and some 406 slaves onboard.30 According to the ship’s cap-
tain, some twenty slaves had already died on the voyage from Africa,31
and the rest were in such poor health that some five more would die
before the ship arrived in Havana. Of the captive passengers, 217 were
men, thirty-seven were women, and the balance were children; a large
percentage of the last group were determined by the British to be sick at
the time of capture, including many who suffered from the “putrid dys-
entery” that had also killed some of the crew.32
The Grasshopper sailed into port in Havana with its prize on Satur-
day, July 5, 1828. The Xerxes crew was handed over to the Spanish cap-
tain-general in Havana, who had them held in the public prison for the
duration of the trial; the Africans were also taken onshore and held in
custody in a warehouse.33 The British and Spanish judges on the mixed
commission at Havana began considering the ship’s fate the next Mon-
day and continued with hearings for the next five days.34 The crew had
been careful to keep the nature of the ship’s cargo absent from the Xerxes
logbooks, though in this case no proof of the illegality of the voyage was
needed since slaves were found onboard.35 The ship’s captain and owner
was Don Felipe Rebel, an unmarried twenty-eight-year-old Spanish citi-
zen. Rebel claimed that he had set out to trade for palm oil and ivory
and had been deceived by a local king in Africa who had insisted on
giving him slaves instead after he had already paid him with merchan-
dise and silver.36 This story was implausible, to say the least, but that also
did not really matter—the slaves onboard were irrefutable evidence of a
violation of the treaty, and Rebel’s argument that he was an accidental
slave trader may have made him feel better but was entirely beside the
point. The “only difficulty” in the proceedings concerned a young Afri-
can boy, Manuel Perez, whom Rebel claimed was his own personal ser-
vant.37 The boy’s name was not recorded in the ship’s crew roster, but
because the boy could speak Spanish, the commissioners concluded

[ 104 ] The Slave Trade and the Origins of International Human Rights Law
that the master was telling the truth and found that they had no legal
basis on which to emancipate him.38
On July 14, the commission declared that the Xerxes should be con-
demned and that the Africans found onboard were “free from all slavery
and captivity.”39 The British commissioner reported to London that the
case had gone well overall, and that he felt that his Spanish colleagues
demonstrated “the utmost good faith, as well as . . . their desire to carry
into execution the stipulations of the Treaty in the most friendly
manner.”40 The Africans onboard this ship, however, were “in a very
unhealthy state” and another fifteen or so had died since the ship had
been brought into port, leaving only 385 alive.41 Even so, that was a large
number of people. The ayuntamiento, or city council, in Havana report-
edly expressed concern about the emancipation of so many Africans at
one time and asked that the passengers of the Xerxes be transported to
Europe, with the expense of transport to be defrayed by increasing
duties in imports. But nothing came of that suggestion and the captain-
general informed the British commissioner that he would apprentice
the freed Africans out “as usual.”42
At this point, Matilda was placed as an apprentice with a Spanish
woman in Havana named Maria del Carmen Carrillo. On May 8, 1830,
Matilda was baptized as a Catholic in the church of Santo Cristo del
Buen Viage of the Havana; the church’s book of the “Baptisms of
coloured people” described her as “an adult emancipated woman of the
Carabali nation, one of those introduced in the Spanish schooner
‘Xerxes,’ a prize to Her Britannic Majesty’s corvette ‘Grasshopper’” and
noted that she had been placed “under the tutelage” of Carrillo, a mem-
ber of the parish.43 But this good Christian woman Carrillo proceeded
to treat Matilda as a slave for the next fourteen years.44 In the summer of
1831, Matilda gave birth to a daughter, whom she named Isabel Marina.
The infant was baptized in the same church under the name Marina; her
baptismal record included her mother’s name and repeated the circum-
stances of her emancipation by the mixed commission. The infant’s

A M I N OT A M A N A N D A B R OT H E R ? [ 105 ]
godmother was a woman named Susanna Carrillo,45 who would at some
point end up in service to the man who was the British consul in Havana
before Turnbull, David Tolmé.46 Tolmé, who was an active merchant as
well as British consul, had been criticized for being too entwined with
slave trading interests and was replaced by Turnbull as part of a con-
scious policy on the part of the British to ensure that their representa-
tives in Cuba were fully devoted to the suppression of the slave trade.47
It was a lucky break for Matilda and her daughter that the godmother
should have ties to the British, for it was through this avenue that both
mother and child would eventually gain their freedom.
Some ten years later, upset that her daughter was being treated as a
slave and fearing that she might even be sold, Matilda delivered the
child over to “two white men, the one a creole of this island, named
Joaquin Saguez, the other a native of the Canaries, named Francisco
Abreu.”48 Abreu was, in fact, Matilda’s husband “in all but the ceremony
of the church,”49 though it is not clear if he was also Isabel Marina’s
father. The two men kept the child concealed in their houses for several
months to protect her from the Carrillo family. During this time,
Matilda was subject to “all sorts of cruelty and torture, for the purpose
of compelling her to disclose the place where she had concealed her
daughter,”50 but she would not talk. Matilda was sent to the sugar plan-
tation of Don Jose Maria Carrillo, a cruel situation where hard labor
would threaten her life.
By that point, the police had begun a search in Havana for the child.
Saguez and Abreu became afraid and approached then–British Consul
David Turnbull for help. Susanna was reportedly willing to hide her
godchild, but the men were uncertain whether this would be safe.51
Turnbull asked to speak with Susanna. Upon meeting her, he found her
(somewhat condescendingly) to be “a person of considerable intelli-
gence, having been with her mistress for some time in England.”52
Having apprised the situation, Turnbull decided the best solution was
to take matters into his own hands and “to receive the child under [his]

[ 106 ] The Slave Trade and the Origins of International Human Rights Law
own roof,” where she would be safest.53 He immediately wrote to the
captain-general to try to resolve the situation with respect to both
Matilda and her mother.54 The child was delivered to his house and thus
was safely sheltered under the diplomatic immunity of a foreign con-
sulate. Soon afterward, Turnbull learned that Susanna, Saquez, and
Abreu had all been arrested and were being held incommunicado in the
Havana prison. Turnbull fired off another angry letter to the captain-
general and soon found that Matilda herself had finally been retrieved
from the sugar plantation and had also been thrown in prison.
The captain-general then appointed an “assessor” to investigate the
situation and asked Turnbull to visit the assessor at his home the fol-
lowing day. Suspicious, Turnbull refused and sent a letter back de-
manding that Matilda be liberated from her situation, which was “in
violation of the Treaties between Spain and Great Britain, in defiance
of the laws of the country, and in contempt of the decree of the Court
of Mixed Commission, by which she was declared to be free.”55 The
captain-general sent back the report of his assessor, who apparently
had rejected Matilda’s claim to freedom and insisted, “somewhat suspi-
ciously, on confining his attention to the pretended concealment of
her daughter; as to which he declare[d] that a proceeding ha[d] been
instituted, in order to discover by whom it had been effected.”56 In
other words, despite evidence that a free woman and her child had
been held in slavery for more than ten years, the only people the gov-
ernment was interested in investigating were the people who had
hidden the child to prevent her from being sold or abused. The asses-
sor’s excuse was that the child’s baptismal certificate gave her name as
Marina, while most people called her Isabel, and so it was not clear
that she was, in fact, free. Turnbull replied that there was no serious
dispute over who she was, that her name was Isabel Marina Carrillo,
and that she was undoubtedly Matilda’s daughter and Matilda was un-
doubtedly free by judgment of the mixed commission. Having refused
to show up at the assessor’s house with the girl, Turnbull invited the

A M I N OT A M A N A N D A B R OT H E R ? [ 107 ]
assessor to come to his house, the consulate, and to bring Matilda with
him. The captain-general then demanded that Turnbull turn over the
child, with a vague promise that if the assessor determined that she
was Matilda’s daughter they would both be given their freedom. But
Turnbull had no confidence in the proposed proceeding and refused
to let the child leave his house.
Finally, the captain-general invited Turnbull to come with the child to
meet with him at the Government House to resolve the matter. Turnbull
decided it was his best chance of reuniting mother and child. Soon after
they arrived, Matilda was brought in and, he said, “the poor girl was called
forward, when a scene ensued which I shall not trust myself to describe,”
but which he compared to the biblical scene where Solomon’s judgment
reveals indisputably who is the true mother of the disputed child.57 Mother
and child wept tears of joy and relief at their reunion. Both were given cer-
tificates of freedom in Turnbull’s presence, and minutes of the meeting
were taken down by a notary and signed by both Turnbull and the captain-
general. Susanna’s owner, Mr. Tolmé, was able to buy her release from
prison, and Saguez had enough funds to buy his own release. But Matilda’s
husband Abreu remained stranded in jail for lack of money to pay the bribe
or bail. Turnbull suggested to the Foreign Office that he should arrange “to
send the whole family to some British colony, there to enjoy that security
for person and property of which they have no hope in this country.”58
It is unclear whether Turnbull ever carried out this plan and what
happened after that to Matilda and her family. Letters between Turnbull
and the British commissioners some months later suggest that the com-
missioners disapproved of Turnbull’s conduct, for when he asked for
their assistance in trying to get Abreu out of jail, they replied, “as the
man, according to your statement, has got into serious difficulty by
acting in concert with you in the matter, it appears to us a question
solely for your consideration.”59 The case of Matilda and her daughter
was far from the only hornet’s nest Turnbull had stirred up. And so it
was perhaps not too surprising when, in February 1842, Palmerston’s

[ 108 ] The Slave Trade and the Origins of International Human Rights Law
successor in the office of Foreign Secretary, Lord Aberdeen, decided to
take a more conciliatory approach toward Spain by stripping Turnbull
of his consulship, though leaving him in office for another few months
as superintendent of liberated Africans in Havana.60 Throughout the
spring of 1842 in his new capacity as superintendent, Turnbull contin-
ued to receive visits from emancipados seeking his help. In May, for ex-
ample, he wrote to the British commissioners in Havana reporting,
“Another female empancipado . . . one of the cargo of the ‘Midas’ of
1831, has come to my house to complain that her pretended mistress
[has been mistreating her],” and availing himself “of this opportunity to
recall your attention to the condition of the emancipados as a class” and
to ask what the commissioners would do about it.61 During those
months, Turnbull sent additional letters to both the captain-general
and the British commissioners, referring to still other emancipados who
were in dire straits and who had sought his help.
His efforts did not engender great sympathy, and by the summer of
1842, Turnbull feared for his life and fled to a British hulk in the harbor,
the HMS Romney.62 From there he eventually left the island, though he
would return briefly in a private capacity before being permanently
expelled by the Spanish government.63 Even after he had left Cuba, he
was accused by the Spanish government of having played a role in
fomenting the alleged Escalera slave conspiracy in 1844.64 Although
Aberdeen was at best lukewarm on Turnbull, Aberdeen appointed him
as a judge on the Anglo-Portuguese court of mixed commission in
Jamaica, where Turnbull served for another several years after leaving
Cuba and continued to advocate forcefully in the cause of abolition.65
After Turnbull’s departure, the remaining British officials in Havana
continued to press local officials to ensure the protection of emancipa-
dos,66 both in general and in particularly egregious cases.67 The captain-
general put in place a system for issuing renewed certificates of freedom
to emancipados, which was apparently successful in hundreds of cases.68
The British eventually succeeded in making arrangements for many

A M I N OT A M A N A N D A B R OT H E R ? [ 109 ]
emancipados to be transported to British colonies,69 though this contin-
ued to give rise to sinister allegations that the British were hoping to bene-
fit their colonies by taking African laborers away from Cuba and Brazil.
Aside from the issue of treatment of those emancipated by the mixed
commissions, another issue concerned the impact of the treaties on the
mistreatment of captives on slave ships as part of efforts to evade detec-
tion and capture, as well as the problem of delays in adjudication. Even
strong supporters of the effort to suppress the slave trade acknowledged
that the faster, smaller ships used in attempts to evade capture increased
to some degree the suffering onboard.70
The case of the Maria da Gloria, also mentioned in the preceding
chapter as an example of loopholes in the treaties, provides an illustra-
tion of the problems caused by delays in adjudication and the unfortu-
nate fate of captives onboard ships that were ultimately acquitted by the
mixed courts and sent on their way again. The Maria da Gloria, a barque
of 238 tons, left Rio bound for Angola in May 1833. On October 26, the
ship was cleared by the customs officer in Angola for a return to Rio,
with a manifest showing cargo to consist of “18 barrels of gum copal,
105 hides, and 1,500 mats,” an implausibly worthless cargo for a trans-
atlantic voyage.71 A letter from the owner of the ship (no doubt intended
for prying eyes in the event of capture) directed the master to take “the
greatest care and vigilance” against carrying “contraband goods, particu-
larly new slaves,” and that “it should be ascertained, when outside the
bar of the port, that none are hidden onboard.”72 Not much of a search
would have been required to find the more than 400 slaves that the mas-
ter took onboard once outside the bar of the port. The ship was sailing
under the Portuguese flag, but also carried onboard English, Brazilian,
and American flags.73 One month later, the Maria da Gloria fell in with
the HMS Snake, a sloop under the command of Commander William
Robertson off the mouth of the harbor of Rio de Janeiro.74 The Snake
detained the Maria da Gloria and turned the ship over to the mixed
commission for trial. But the mixed court at Rio de Janeiro rejected the

[ 110 ] The Slave Trade and the Origins of International Human Rights Law
case on the grounds that the ship was Portuguese, not Brazilian, and
therefore was in the wrong jurisdiction.75
The admiralty ordered the ship to be transported back across the
Atlantic by a prize crew led by Lieutenant Joseph Denman, and the ship
arrived at Freetown, Sierra Leone, in February 1834. The ship’s crew
asked that the slaves be landed “on account of their crowded and sickly
state, and their long confinement on board the detained vessel.”76 The
commissioners were reluctant to let the slaves be landed as they feared
that “in the event of the ‘Maria da Gloria’ and her cargo being restored,
a serious commotion in the colony might result from an attempt to re-
ship them.”77 It was decided that it would be safer to keep them all off-
shore during the trial, but that the sickest should be removed to a
different ship to prevent the further spread of disease. The governor
provided another ship, the Adelaide, for receiving the sick slaves. The
assistant surgeon of the Snake, who had been sent as part of the prize
crew, continued to tend to the sick.
The fate of the ship was decided by the Anglo-Portuguese mixed
court at Sierra Leone. The judges there “reluctantly” concluded that the
ship was immune from condemnation because it was seized south of the
equator, where the slave trade was arguably still permitted by the Portu-
guese treaty.78 The ship was not carrying a valid royal passport autho-
rizing the transportation of slaves, as required by the 1817 treaty between
Britain and Portugual.79 Nevertheless, that was apparently a matter to be
dealt with by the Portuguese government, and not a basis for the mixed
commission to act given that the ship had been sailing south of the
equator. The master of the ship gave testimony so inconsistent that the
mixed commission judges noted that never had “perjury been more un-
blushingly practised” before them.80 At one point, he tried to claim that
the “black people” onboard the ship were passengers and had paid him
250 dollars each for passage to Monte Video.81 It took four weeks for the
court in Sierra Leone to adjudicate the case, a pace which it said was a
“much shorter period of time than ever yet was occupied by any Case of

A M I N OT A M A N A N D A B R OT H E R ? [ 111 ]
a similar description.”82 In the end, however, the commissioners felt
obliged to order the acquittal of the ship because it had been captured
south of the equator, though they denied any costs or damages to the
Maria da Gloria’s crew on the grounds that they were engaged in an il-
legal traffic and should not profit, even if they had been wrongly detained.
The case had a profound impact on Denman, who, as mentioned pre-
viously, became an ardent abolitionist because of his experiences
onboard the Maria da Gloria.83 Dispirited, Denman and the rest of the
prize crew took passage to London onboard a “very fast-sailing vessel” a
day or two after the case was resolved. The case also left a strong impres-
sion on the judges at the Sierra Leone court, as previously noted. With
some dismay, the British judges wrote to Viscount Palmerston:

Although it has been our duty as Judges to restore the “Maria da Gloria,”
we cannot forbear expressing to your Lordship our deep regret on wit-
nessing the sailing of that vessel with her cargo of unhappy beings, des-
tined to another miserable voyage across the Atlantic.
As men, our feelings have been greatly distressed.84

The commissioners noted that sixty-four of the sickest slaves onboard

had been freed from slavery through the “humane interposition” of the
lieutenant governor at Freetown:

This is indeed an incalculable advantage, and may serve, in some degree,

to console humanity under the horrid prospect, which now lies before
the survivors of the unhappy slaves, of having a third time to cross the
Atlantic ocean, after the sufferings which they have already endured
during a period of more than 5 months.85

The judges expressed their hope that the horrifying outcome of the case
would prompt the British government to conclude a new, more effec-
tive treaty with Portugal that covered traffic sailing in all latitudes.86 Out
of the original 400 slaves loaded on the Maria da Gloria, some 150

[ 112 ] The Slave Trade and the Origins of International Human Rights Law
slaves landed and were sold in Brazil after a third miserable passage
across the Atlantic. More than 200 Africans had died onboard the ship
of disease during the long months as it bounced from court to court.87
In testifying before Parliament more than a decade later, Denman still
seemed marked by this experience:

In my own case I was four months on board a particularly large and

roomy slaver, and I can speak from my own experience of the sufferings
which were there incurred.
. . . Under the best of circumstances, it is abhorrent to humanity in
every step of its progress.88

In sum, like many legal regimes, the international regime for the sup-
pression of the slave trade had certain unintended consequences. The
purpose of the regime was to benefit the victims of the slave trade—to
preserve the freedom of the millions of Africans who might otherwise
be torn from their homes and carried to slavery on the other side of the
globe. Ultimately, this goal was achieved. But along the way, many indi-
vidual Africans were harmed. Some were crowded onto ships in worse
conditions than they might otherwise have endured, as slavers tried to
maximize the value of each voyage while evading capture. Some were
thrown overboard to drown when a British cruiser was spotted, a most
vicious way of destroying the evidence of wrongdoing. Some died of
disease as the courts took too long to decide cases. Some were formally
freed but fared no better than slaves because the courts lacked adequate
mechanisms for following up on enforcement. To the extent that the
mixed commissions delivered justice, it was imperfect justice at best.

A M I N OT A M A N A N D A B R OT H E R ? [ 113 ]
CHAPTER 6

Hostis Humani Generis

Enemies of Mankind

I
n addition to the suprising role of international slave trade tribu-
nals in the suppression of the slave trade, the history of the abo-
lition of the transatlantic slave trade sheds light on other issues in
international human rights law, including the role of domestic courts
in the enforcement of international norms. One of the more intriguing
aspects of the law governing the slave trade in the nineteenth century
relates to two important concepts in contemporary international
human rights law: the concept of universal jurisdiction over human
rights abusers, and the concept of crimes against humanity. By the
middle of the nineteenth century, a number of countries had agreed to
declare the slave trade a form of piracy in the hopes of making slave
traders, like pirates, hostis humani generis, or enemies of mankind, subject
to capture and trial in the courts of any nation. Moreover, some com-
mentators—notably the prominent American jurist Henry Wheaton—
had begun to refer to the slave trade as a “crime against humanity,”
putting that term into legal use more than a century before its more
famous debut at Nuremberg. The two developments were not unre-
lated. That is, describing the slave trader as hostis humani generis helped
solidify the idea that these crimes were offenses against humanity
generally.
The link between slave trading and piracy, and between slave trading
and universal jurisdiction, has not been entirely forgotten in interna-
tional law, but unfortunately it has often been misunderstood. This
chapter seeks to clarify that link.
While the description of slave traders as hostis humani generis is not
likely to surprise most international lawyers, the fact that the term
“crimes against humanity” was used in conjunction with the slave trade
is likely to surprise them. The conventional wisdom is that the term
originated in the early twentieth century. For example, one leading and
careful scholar of international law asserts in his treatise International
Criminal Law that “[t]he notion of crimes against humanity was pro-
pounded for the first time in 1915, on the occasion of mass killings of
Armenians in the Ottoman Empire.”1 Another prominent and thorough
scholar agrees that “[t]he specific origin of the term ‘crimes against hu-
manity’ as the label for a category of international crimes goes back to
1915” in connection with the slaughter of Armenians as “crimes against
civilization and humanity.”2 He further argues that the term “crimes
against humanity” emerged in connection with war crimes, drawing on
the Martens Clause of the 1899 and 1907 Hague Conventions on the
laws of war,3 though he does acknowledge that the concepts of hostis
humanis generis and offenses jure gentium are older.4
But the actual term “crime against humanity” was used long before
1915, and in connection with the slave trade, not war crimes. In his
1842 treatise Right of Visitation and Search, the prominent American
international law scholar Henry Wheaton describes the slave trade as a
“crime against humanity,” which is so far as I know the first use of that
term in international law. 5 Wheaton uses the term again in his 1845
History of the Law of Nations, where he states that “[p]ublic opinion,
stigmatizing the traffic [in slaves] as a crime against humanity” had led to
action against the slave trade.6 Wheaton’s phrasing is the most directly

H O ST I S H U M A N I G E N E R I S [ 115 ]
similar to the modern usage, but he is not the only one to speak of the
slave trade as an offense against humanity or a violation of the laws of
humanity. Indeed, such language appears frequently throughout dis-
cussions of the slave trade. In his 1810 message to Congress, for ex-
ample, President James Madison said that “it appears that American
citizens are instrumental in carrying on a traffic in enslaved Africans,
equally in violation of the laws of humanity, and in defiance of those of
their own country.”7
But does violating the laws of humanity make one an enemy of all
mankind? How did slave traders get their reputation as enemies of
mankind? And did this label reflect a judgment about the heinousness
of their actions, or was it merely a clever legal technicality to gain juris-
diction over them? These issues are relevant to several contemporary
debates related to international human rights law. In 1980, a federal
appeals court in New York famously opened the door for the prosecu-
tion of civil lawsuits against human rights abusers from other countries
in United States courts under the Alien Tort Statute. These cases, along
with criminal cases brought against figures like Chilean dictator
Augusto Pinochet and Israeli leader Ariel Sharon in countries such as
Spain and Belgium, launched a modern debate about the use of so-
called universal jurisdiction against human rights abusers. In the 1980
case, Filartiga v. Pena-Irala, the appeals courts said that “for purposes of
civil liability, the torturer has become—like the pirate and slave trader
before him—hostis humani generis, an enemy of all mankind.”8 This
idea has been frequently repeated by courts and commentators since
then, with the treatment of pirates and slave traders under interna-
tional law cited as the main precedents for the contemporary doctrine
of universal jurisdiction.
In fact, jurisdiction over both pirates and slave traders was more
complex and more contested than these modern references suggest,
though ultimately it does support at least the beginnings of a concept of
universal jurisdiction based on actions that are crimes against humanity.

[ 116 ] The Slave Trade and the Origins of International Human Rights Law
 As is often the case with international law, the road does eventually
lead back to the laws of war, which formed a major part of the early law
of nations. Historically, pirates were individuals who engaged in armed
violence on the high seas without the sanction of a sponsor state.
Writers on the law of nations from the Middle Ages forward typically
include pirates as proper objects of just war. The idea that human
rights violators and pirates are analogous in their assault on the social
order of the world community is quite an old one. This link makes an
early appearance in the writings of Alberico Gentili (1552–1608), an
Italian Protestant who left his home for lands more tolerant of his reli-
gious beliefs and ended up as the Regius Professor of Civil Law at
Oxford University in 1587. Gentili espoused a theory of just war that
encompassed the common interests of mankind (communi ratione et
pro aliis). He believed that just war could be “undertaken for no pri-
vate reason of our own, but for the common interest and in behalf of
others,” explaining that if “men clearly sin against the laws of nature
and of mankind, I believe that any one whatsoever may check such
men by force of arms.”9
Gentili thus set out a case for something like the modern doctrine of
violations of international law erga omnes (against all) that may be
raised not only by the injured, but by anyone—a concept that is dis-
tinct from (but related to) the idea of universal jurisdiction over cer-
tain offenses. Just as “in a state any one whatsoever is allowed to accuse
an offender against the community, even one who is not a member of
the state,” when the matter concerns something “which is not peculiar
to the state but of interest to all men,” anyone may take action.10 For
example, Gentili explained that “a foreigner may not conduct a case
relating to a road and highway of the state, but he may do so in a ques-
tion affecting a man’s liberty or the like.”11 Gentili further argued, in a
chapter “On defending the Subjects of another Sovereign,” that war
might be waged to protect subjects of a foreign sovereign “treated
cruelly and unjustly.”12

H O ST I S H U M A N I G E N E R I S [ 117 ]
 [T]he subjects of others do not seem to me to be outside of that kinship
of nature and the society formed by the whole world. . . . And unless we
wish to make sovereigns exempt from the law and bound by no statutes
and no precedents, there must also of necessity be some one to remind
them of their duty and hold them in restraint.13

Practices like human sacrifice that were contrary to “a right of humanity”

thus justified waging war on their practitioners, “for the innocent must be
protected.”14 Indeed, speaking of rape, Gentili suggested that “to violate
the honour of women will always be held to be unjust” even in war, and the
party that allows it will be accountable “to the rest of the world, if there is
no magistrate here to check and punish the injustice of the victor. He will
render an account to those sovereigns who wish to observe honourable
causes for war and to maintain the common law of nations and of nature.”15
Gentili not only described piracy as being of universal concern but
also analogized war waged for humanitarian interests to wars waged
on pirates:

And if a war against pirates justly calls all men to arms because of love for
our neighbour and the desire to live in peace, so also do the general viola-
tion of the common law of humanity and a wrong done to mankind. Piracy
is contrary to the law of nations and the league of human society. Therefore
war should be made against pirates by all men, because in the violation of
that law we are all injured, and individuals in turn can find their personal
rights violated. . . . Therefore, since we may also be injured as individuals by
those violators of nature, war will be made against them by individuals.16

Gentili was not by any means the only writer to suggest that humani-
tarian intervention could be a justification for war—the Spanish scho-
lastic Francisco de Vitoria (ca. 1480s–1546) espoused similar notions
before Gentili, and Hugo Grotius did so after. (Unfortunately, these
sorts of ideas were used in justifying the European conquest and

[ 118 ] The Slave Trade and the Origins of International Human Rights Law
colonization of other lands, tainting the idea of humanitarian interven-
tion with a reputation as a tool of imperialism.) But Gentili was espe-
cially explicit in linking the idea of wars waged against pirates to wars on
offenders against the common law of humanity.
Many modern writers have characterized the treatment of piracy as
an offense against all as a tool for reinforcing state sovereignty, by solid-
ifying the monopoly on the use of force by nation-states to the exclusion
of nonstate actors (e.g., pirates). But in Gentili’s writings, nation-states
are not inviolate but instead are subject to the “common law of nations
and of nature.” Those who violate these common laws of humanity are
of concern to all members of the human community, whether the viola-
tors bear the mantel of sovereignty or not.
To add greater complexity to the matter, jurisdiction over pirates was
not as clear under the law of nations as many assume. Certainly, there
are many statements supporting the idea that pirates were subject to
some sort of universal jurisdiction. Reflecting the ius gentium rationale
for jurisdiction over piracy, for example, British admiralty courts in the
seventeenth century described pirates as “hostis humani generis” and
therefore “out of the Protection of all Princes and of all Laws.”17 In the
eighteenth century, Blackstone similarly wrote:

the crime of piracy . . . is an offence against the universal law of society;

a pirate being . . . hostis humani generis. As therefore he has renounced all
the benefits of society and government, and has reduced himself afresh
to the savage state of nature, by declaring war against all mankind, all
mankind must declare war against him: So that every community hath a
right, by the rule of self-defence, to inflict that punishment upon him,
which every individual would in a state of nature have been otherwise
entitled to do.18

Nevertheless, actual instances of the exercise of jurisdiction over

pirates by nations with no connection to their crimes appear relatively

H O ST I S H U M A N I G E N E R I S [ 119 ]
uncommon—that is, nations were mostly in the habit of punishing
pirates who were their citizens, who sailed under their flag, or who
attacked ships under their national flag.19 The boundaries of jurisdiction
over piracy were litigated in several early Supreme Court cases in the
United States. The first U.S. statute against piracy was enacted in 1790
and provided that:

if any person or persons shall commit upon the high seas, or in any river,
haven, basin or bay, out of the jurisdiction of any particular state, murder
or robbery, or any other offence which if committed within the body of a
county, would by the laws of the United States be punishable by death . . .
every such offender shall be deemed . . . to be a pirate and a felon, and
being thereof convicted, shall suffer death.20

In United States v. Palmer, the Supreme Court found that, although

Congress had the power “to enact laws punishing pirates, although
they may be foreigners, and may have committed no particular of-
fence against the United States,” the 1790 act was not intended to
encompass such broad jurisdiction.21 With respect to the provision of
the act applying to “any captain or mariner of any ship or other vessel,
[who] shall piratically run away with such ship or vessel,” the Court
noted that:

These are offences against the nation under whose flag the vessel sails,
and within whose particular jurisdiction all on board the vessel are.
Every nation provides for such offences the punishment its own
policy may dictate; and no general words of a statute ought to be con-
strued to embrace them when committed by foreigners against a for-
eign government.22

In other words, the Court saw a jurisdictional distinction between pi-

racy in the form of one ship robbing another and piracy in the form of
mutiny onboard one ship. The former was the classic type of piracy

[ 120 ] The Slave Trade and the Origins of International Human Rights Law
recognized under the law of nations as of general concern, while the
Court viewed the latter as primarily up to the particular state whose
ship was involved to define and punish.23
Apparently displeased with the Supreme Court’s decision, the U.S.
Congress enacted a new, broader law against piracy in March 1819. This
law, An Act to Protect the Commerce of the United States and Punish
the Crime of Piracy, provided that “if any person or persons whatsoever
shall, on the high seas, commit the crime of piracy, as defined by the law
of nations, and such offender or offenders, shall afterwards be brought
into or found in the United States, every such offender or offenders
shall, upon conviction thereof . . . be punished by death.”24 By defining
piracy in terms of the law of nations, Congress also suggested that it
intended for U.S. courts to exercise jurisdiction in cases where interna-
tional law would allow it.
Two significant cases on piracy reached the Supreme Court in 1820.
In the first, the charges had been brought under the older 1790 act. This
case was against Ralph Klintock, a U.S. citizen who had been sailing
onboard a foreign ship under ostensible commission as privateer spon-
sored by “Aury, styling himself Brigadier of the Mexican Republic and
Generalissimo of the Floridas”—a commission that was not recognized
as valid by the United States. The ship on which Klintock served as first
lieutenant had captured a Danish vessel by way of a fraud involving
forged papers planted on the ship. The jury convicted Klintock of pi-
racy. On appeal in the Supreme Court, Attorney General William Wirt
argued in support of the conviction that:

[a] pirate, being hostis humani generis, is of no nation or State. He and his
confederates, and the vessel on board of which they sail, are outcasts
from the society of nations. All the States of the world are engaged in a
tacit alliance against them. An offence committed by them against any
individual nation, is an offence against all. It is punishable in the Courts
of all.25

H O ST I S H U M A N I G E N E R I S [ 121 ]
Writing for the Court, Chief Justice Marshall upheld the conviction,
distinguishing cases of ships “sailing under the flag of a foreign State,
whose authority is acknowledged” from those of ships “in possession of
a crew acting in defiance of all law, and acknowledging obedience to no
government whatever. . . . Persons of this description are proper objects
for the penal code of all nations.”26 The statute, the Court concluded,
“applied to offences committed against all nations, including the United
States, by persons who by common consent are equally amenable to the
laws of all nations.”27
The next day, the Court decided United States v. Smith, its first case
under the 1819 statute, which, as noted previously, expressly defined
piracy in terms of the “law of nations.” The defendant, Thomas Smith,
was serving on a vessel with a commission from the government of
Buenos Aires, which had declared its independence from Spain. The
crew mutinied, then seized another ship, and then set about plun-
dering and robbing a Spanish ship from onboard the new vessel,
which lacked papers and commission altogether. The Court upheld
Smith’s conviction, holding in an opinion by Justice Story that Con-
gress had acted constitutionally in defining piracy in terms of the “law
of nations” and that the law of nations as to piracy was sufficiently
definite to support criminal punishment.28 Shortly thereafter in U.S. v.
Furlong, alias Hobson, the Court further explained that “when
embarked on a piratical cruize, every individual becomes equally
punishable . . . whatever may be his national character, or whatever
may have been that of the vessel in which he sailed, or of the vessel
attacked.”29 Nevertheless, the Court distinguished between piracy
and murder, holding that:

Robbery on the seas is considered as an offence within the criminal ju-

risdiction of all nations. It is against all, and punished by all. . . . Not so
with the crime of murder. It is an offence too abhorrent to the feelings of
man, to have made it necessary that it also should have been brought

[ 122 ] The Slave Trade and the Origins of International Human Rights Law
 within this universal jurisdiction. And hence, punishing it when com-
mitted within the jurisdiction, or, (what is the same thing,) in the vessel
of another nation, has not been acknowledged as a right, much less an
obligation. It is punishable under the laws of each State.30

Thus, the court held that the murder of one British citizen by another
onboard a British ship would not be punished by an American court,
notwithstanding the fact that the 1790 act had defined piracy to include
murder. The Court described the limits of Congress’s power to redefine
piracy under the law of nations:

If by calling murder piracy, it might assert a jurisdiction over that

offence committed by a foreigner in a foreign vessel, what offence might
not be brought within their power by the same device? The most offen-
sive interference with the governments of other nations might be
defended on the precedent. Upon the whole, I am satisfied that Con-
gress neither intended to punish murder in cases with which they had
no right to interfere, nor leave unpunished the crime of piracy in any
cases in which they might punish it.31

Under the rationale of these cases, when the United States in 1820
passed a criminal statute making slave trading punishable as piracy, it
was changing municipal law only, and not the law of nations. Both the
United States and Britain hoped that slave trading would eventually
become piracy under the general law of nations but recognized that
changes to the general law of nations required the agreement of more
than just two nations. Making the slave trade piracy under the law of
nations would have several advantages. First, suspected pirate ships
were susceptible to search under the law of nations even in peacetime,
when there was generally no right to board and inspect the ships of an-
other country. Second, all countries had jurisdiction to punish individ-
uals who committed piracy as defined in the law of nations. Finally, the

H O ST I S H U M A N I G E N E R I S [ 123 ]
traditional characterization of the pirate as an enemy of humanity lent
itself naturally to the extension to the slave trade, which was by then
being characterized as an offense against humanity.
As noted previously, Britain proposed at the Congress of Aix-la-
Chapelle in 1818 that the European powers act in concert to declare the
slave trade to be piracy under the law of nations, but was initially unsuc-
cessful in winning broader agreement on this point.32 In 1823, the
United States—having already declared the trade to be piracy under
municipal law in 1820—also took up the project of making it such
under the law of nations. The U.S. House of Representatives passed a
resolution calling upon the president “to enter upon . . . negotiations
with the several maritime Powers of Europe and America, as he may
deem expedient for the effectual abolition of the African slave trade,
and its ultimate denunciation, as piracy, under the law of nations, by the
consent of the civilized world.”33 Congressman Mercer, in support of
the resolution, explained that “[t]he consent of nations may make pi-
racy of any offence upon the high seas” and that declaring the slave
trade piracy would provide a “definite and competent remedy” that
would be “understood, and punished by all nations.” Moreover, he con-
tended, the slave trade was analogous to piracy, for “is it not robbery to
seize, not the property of the man, but the man himself?”
Pursuant to these instructions, Secretary of State John Quincy
Adams proposed that Britain and the United States enter into a treaty
agreeing to declare the slave trade piracy in their municipal laws and to
endeavor to get other countries to make it so under the law of nations.
At the same time, Adams also sent letters to American diplomats in a
variety of countries including Spain, France, and the Netherlands
seeking similar agreements to redefine the slave trade as piracy.34
The British were receptive to the proposal, as Canning put it, to “join
with other powers in declaring slave trade piracy, under the law of na-
tions, and treating the perpetrators of this crime as enemies of the human
race.”35 As President Monroe explained in his message to Congress in

[ 124 ] The Slave Trade and the Origins of International Human Rights Law
1824, the United States had objected to British proposals for conceding
the right of search on the grounds that as “the right of search was a right
of war of a belligerent towards a neutral power, it might have an ill effect
to extend it, by treaty . . . to a time of peace.”36 On the other hand, by
“making it piratical,” that objection would be eliminated since there was
already a right of search for piracy. “In that mode, the enormity of the
crime would place the offenders out of the protection of their Govern-
ment, and involve no question of search, or other question, between the
parties, touching their respective rights.”37
At the same time, the negotiators recognized that, under the prevail-
ing understanding of the law of nations, they could not alone change
the customary international legal definition of piracy. Adams, for ex-
ample, noted “[t]he distinction between piracy by the law of nations,
and piracy by statute,” and the fact that “while the former subjects the
transgressor guilty of it, to the jurisdiction of any and every country,
into which he may be brought, or wherein he may be taken, the latter
forms a part of the municipal criminal code of the country where it is
enacted, and can be tried only by its own courts.”38 This was reflected in
the recent U.S. Supreme Court decisions on the topic, with which
Adams was no doubt familiar. Although the United States “expressed
their desire that the change [in the definition of piracy to include the
slave trade] should become general by the consent of every other
power,” Adams acknowledged that Britain and the United States alone
could not redefine piracy under the general law of nations. Until the
general agreement of nations on the matter was achieved, Adams
asserted that the United States was constitutionally bound to punish its
own citizens in its own courts for what was a municipal law offense, and
the treaty had to provide that captured slave ships be brought back to
their own nation for trial.39
Adams noted: “Piracy being an offence against the human race, has its
well known incidents of capture and punishment by death, by the
people and tribunals of every country.”40 However, he also asserted that

H O ST I S H U M A N I G E N E R I S [ 125 ]
in some cases “by the prevailing customary law, they are tried only by the
tribunals of the nation to which the vessel belongs in which the piracy
was committed” and that “[t]he crime itself has been . . . in modern
times, of so rare occurrence, that there is no uniformity in the laws of
the European nations with regard to this point.”41 In this regard, he dis-
tinguished “a piracy committed on board of a vessel by its own crew”—
that is, a mutiny—from “[e]xternal piracies, or piracies committed by,
and from one vessel against another,” which “may be tried by the courts
of any country, but are more usually tried by those of the country whose
vessels have been the sufferers of the piracy.”42
As noted, the British eagerly agreed to the American proposal, and
Parliament enacted a statute declaring the slave trade to be piracy.43
Thus, an 1824 draft treaty between Britain and the United States noted
that each country “separately, by its own laws” had subjected “their sub-
jects and citizens” engaged in slave trading to the penalties of piracy,
and agreed “to use their influence, respectively, with the other maritime
and civilized nations of the world, to the end that the said African slave
trade may be recognized, and declared to be, piracy under the law of
nations.”44
As detailed in chapter 3, the treaty foundered when the Senate tried
to make changes before final ratification to which the British would not
agree.45 The British, however, were inspired by the American proposal to
treat the slave trade as piracy, and many of the British treaties on the
slave trade in succeeding years included a clause declaring the trade to be
piracy. Britain’s 1826 convention with Brazil, for example, provided that
after three years, “it shall not be lawful for the subjects of the Empire of
Brazil to be concerned in the carrying on of the African Slave Trade . . .
and the carrying on of such Trade after that period, by any person Sub-
ject of His Imperial Majesty, shall be deemed and treated as piracy.”46
British treaties with Chile, Venezuela, Argentina, and Uruguay in 1839
described the slave trade as piracy, as did British treaties with Bolivia
and Texas in 1840, with Mexico, Ecuador, Austria, Prussia, and Russia

[ 126 ] The Slave Trade and the Origins of International Human Rights Law
in 1841, Borneo in 1847, Belgium in 1848, New Granada in 1851, and
Italy in 1889. These treaties included various formulations, with some
countries promising to enact or enforce domestic legislation declaring
the slave trade to be piracy, as with the Chilean treaty that promised “to
promulgate a law imposing the punishment attached to piracy on all
Chilean citizens who shall . . . take any part whatever in the traffic in
slaves.47 Others, such as the Texas treaty, simply promised “to declare
such trade Piracy.”48 An 1839 treaty with Haiti referred to a recently
passed Haitian law which asserted “La Traite est assimilée à la Pirate-
rie,”49 while the 1841 convention with Austria, Prussia, and Russia, to
which Belgium acceded in 1848, provided that each country would
“prohibit all trade in slaves, either by their respective subjects, or under
their respective flags, or by means of capital belonging to their respec-
tive subjects” and “to declare such traffic piracy.”50
The implications of a bilateral declaration that the slave trade was pi-
racy became the subject of dispute between Britain and Brazil in the
mid-1840s, when the portion of the Anglo-Brazilian treaty providing
for mixed commissions expired and Brazil refused to renew it. Britain
responded by reverting to the use of its own admiralty courts to try Bra-
zilian ships. The political consequences of those actions are discussed
more fully in chapter 7, but it is worth recounting here the legal argu-
ments on both sides.
In 1845, in response to the crisis, the British Law Officers gave an
opinion to the Foreign Office on the matter. They advised that under
the 1826 treaty with Brazil, Britain had “acquired the right to order
the Seizure of all Brazilian subjects found upon the High Seas
engaged in the Slave Trade, or punishing them as Pirates, and of dis-
posing of their vessels in which they may be captured, together with
the Goods on board of them as bona piratorum.” But they also con-
cluded “that further Legislative Enactments are necessary in order
to, and previous to carrying into full effect on the part of Her Majesty
the above mentioned Rights.”51 Parliament obliged by passing a

H O ST I S H U M A N I G E N E R I S [ 127 ]
statute that became known as Aberdeen’s Act, which provided that,
since the 1826 Anglo-Brazilian convention had stated that the slave
trade “should be deemed and treated as piracy,” the British courts of
admiralty and vice-admiralty were authorized “to take cognizance of
and adjudicate any vessel carrying on the Slave Trade” in contraven-
tion of the 1826 treaty.52
Aberdeen wrote to the Brazilian minister arguing, “There is
nothing here to show that the penalties of piracy are to be inflicted
on the offenders by Brazil alone; or that a municipal regulation of
Brazil, attaching the penalties of piracy to the offence, is to be consid-
ered as a fulfillment of the engagement.” He went on to argue that
“[t]he very term of piracy would imply, unless it were otherwise
stated” that violators were subject to the jurisdiction of the other
country. However, he “admitted that no act of Great Britain and Bra-
zil alone” could make the slave trade “piracy as to other nations,” but
that between themselves “it should be so treated.”53 Aberdeen simi-
larly explained before the House of Lords that “[t]hat declaration [in
the 1826 treaty] could not, of course, render the Slave Trade piracy
by the law of nations; but as between Great Britain and Brazil it
became illegal by that compact.”54
Brazil did not accept these legal arguments. “It is a principle of the
law of nations, that no State can exercise any act of jurisdiction over the
property or the individuals in the territory of another,” the Brazilian
government wrote to the British.55 Britain’s assertion of jurisdiction was
an “unjustifiable abuse of power which threatens the rights and prerog-
atives of every free and independent nation.”56

[The] trade is ranked with piracy only by a fiction of law; and it is known,
that fictions of law are effectual only for the express purpose for which
they were created. In truth, the traffic is not so easily carried on as rob-
bery on the high seas. The same difficulty does not exist in detecting and
convicting its agents, as with reference to pirates. In a word, the traffic

[ 128 ] The Slave Trade and the Origins of International Human Rights Law
 does not menace the maritime commerce of all people, as piracy does. It
follows then, that the penalties imposed on slave-traders cannot, with-
out being deemed tyrannical, be rendered so severe as those which all
nations award to piracy.57

The Brazilians suggested that the 1826 treaty did not expressly delegate
the power to enforce the prohibition to Britain, and that such a delega-
tion should not be inferred lightly. Moreover, the Brazilians noted, if the
1826 treaty were really meant to authorize the British to seize and try
Brazilian slavers in their own courts as pirates, then why did it also pro-
vide for the mixed commissions, which would appear redundant? “Nor
is it conceivable how the traffic can at this time be deemed piracy
according to the law of nations” when “it is not many years since Eng-
land herself did not conceive herself disgraced by trading in African
slaves; and when other civilized nations only very recently proscribed
that traffic.”58 Aberdeen’s Act was, in the eyes of Brazil, “opposed to the
most clear and positive principle of international law” and “in contempt
of the sovereignty and independence of Brazil.”59
As recounted in chapter 7, Brazil eventually responded to the British
pressure by taking decisive action against slave traders by enforcing its
own laws against the sale and importation of slaves, thus putting an end
to the traffic to Brazil and mooting the controversy about the status of
slave trading as piracy.
By then, the arguments about the slave trade and piracy had become
well known even to naval officers. Testifying before the House of Com-
mons in 1848, Captain Joseph Denman of the Royal Navy stated that “if
the states of the civilized world were to declare slave trading an act of
piracy,” then “the slave trade would become perfectly extinct; that no
one would incur the penalties and perils which the commission of acts
of piracy would involve.”60 Denman explained, “We do practically exer-
cise the right of search already with regard to America.” (The Americans
would have been displeased to hear that.) Britain claimed the right of

H O ST I S H U M A N I G E N E R I S [ 129 ]
visit to verify the flag, which he acknowledged was a new distinction
from the right of search. The effect of this was that:

if you go on board an American vessel, and see that she is a slaver (no
search is required to see that), she becomes at once subject to seizure;
because America having made the slave trade piracy by her law, it is a
well-known fact that no such thing exists as an American slaver; and
therefore the very fact of seeing her to be a slaver would make the
inference so strong that she was not American, that you would be en-
titled to act upon the supposition that she was Spanish, Portuguese,
or Brazilian.61

As for the crews onboard slave vessels, Denman said, “They are the
greatest scoundrels on the face of the earth. They are accustomed, in
their daily course of life, to commit murder, and to regard human life
as of no more consequence than the lives of pigs or dogs.” Were they, a
member of Parliament asked, “that class of men who might become
pirates or might be guilty of any atrocity?” Denman replied, “[I]t
answers itself. When men are in the habit of treating human beings in
the way that they do treat them, and when they are already violating
the laws of their own country . . . then piracy, in its general sense, is an
easy step.”62
Although by this time a number of countries declared the slave
trade piracy by treaty, it was apparently not enough to persuade some
commentators in the mid-nineteenth century that slave trading was
piracy by the law of nations. Writing in the early 1840s against British
claims of the right to visit American ships suspected of slave trading to
determine their true nationality, the American jurist Henry Wheaton
argued that “the piracy . . . created by municipal statute must not be
confounded with piracy under the law of nations.”63 He noted that
even if the slave trade were “now forbidden by the municipal laws of all
civilized and Christian countries, and is declared to be piracy,” that “it

[ 130 ] The Slave Trade and the Origins of International Human Rights Law
does not therefore follow that the offence of trading in slaves is deemed
piracy under the law of nations,” noting that the proposal to make it
such failed at the Congress of Verona, and that the 1824 Anglo-
American treaty had failed.64

It is, therefore, a looseness of language, fatal to all accurate reasoning, to

call slave-traders “piratical outlaws,” and to assert that, for the sake of
discovering and punishing these persons as offenders against the law of
nations, a general right of search is to be assumed in time of peace, as if
cruising against slave-traders were to be put on the same footing with
public war between sovereign communities.65

Wheaton suggested that unanimity in the international community was

required before such a transformation in law could occur: “It is quite
clear that such a right can never be established but by the voluntary con-
sent of all civilized States.”66
It is not clear to what degree Wheaton’s views were colored by his
focus on denying the British the right to visit and search American
ships. In the 1866 edition of his treatise on international law—
published after the United States had joined the mixed courts
regime—Wheaton still insisted that the slave trade was not piracy
under the law of nations, and therefore that no right of search attached
to it. But he agreed that it was “now denounced as an odious crime, by
the almost universal consent of nations.”67 Other commentators
writing around this time agreed with Wheaton’s assessment. British
barrister and admiralty judge Robert Phillimore’s 1854 treatise on in-
ternational law reports:

International Law has, on this subject, advanced towards, if it have not

yet reached the elevation of Natural and Revealed Law. . . . By general
practice, by treaties, by the laws and ordinances of civilized States, as
well as by the immutable laws of eternal justice, [the slave trade] is now
indelibly branded as a legal as well as a natural crime.68

H O ST I S H U M A N I G E N E R I S [ 131 ]
He further noted, “Many countries have stamped the character of pi-
racy upon this horrible traffic, so far as the authority of their own Mu-
nicipal Laws may extend,”69 though it was not yet piracy “jure gentium.”70
During the American Civil War, the Union military orders that are
today famous as the Lieber Code somewhat radically suggested that in-
ternational law did not recognize slavery at all, and that the law of na-
tions shielded fugitives from slavery. The Lieber Code, which is now
regarded as one of the foundational texts of the modern laws of war and
which served as the basis for later law of war treaties, was drafted by
Columbia University law professor Francis Lieber and issued by Presi-
dent Lincoln in 1863 as General Orders No. 100 to govern the conduct
of the Union army.71 The Code asserted

Art. 42 Slavery, complicating and confounding the ideas of property,

(that is of a thing,) and of personality, (that is of humanity,) exists
according to municipal or local law only. The law of nature and nations
has never acknowledged it. The digest of the Roman law enacts the early
dictum of the pagan jurist, that “so far as the law of nature is con-
cerned, all men are equal.” Fugitives escaping from a country in which
they were slaves, villains, or serfs, into another country, have, for cen-
turies past, been held free and acknowledged free by judicial decisions
of European countries, even though the municipal law of the country
in which the slave had taken refuge acknowledged slavery within its
own dominions.
Art. 43. Therefore, in a war between the United States and a bellig-
erent which admits of slavery, if a person held in bondage by that bellig-
erent be captured by or come as a fugitive under the protection of the
military forces of the United States, such person is immediately entitled
to the rights and privileges of a freeman. To return such person into slav-
ery would amount to enslaving a free person, and neither the United
States nor any officer under their authority can enslave any human
being. Moreover, a person so made free by the law of war is under the shield

[ 132 ] The Slave Trade and the Origins of International Human Rights Law
 of the law of nations, and the former owner or State can have, by the law
of postliminy, no belligerent lien or claim of service.72

The Lieber Code was revisionist—clearly, the law of nations had very
recently tolerated slavery and the slave trade—but it reflected the
changing attitudes. By the 1870s, many writers were comfortable saying
that the slave trade was an offense against the law of nations. An 1878
edition of James Kent’s Commentary (edited for a British audience by
J. T. Abdy, a judge and professor of international law at Cambridge Uni-
versity), in the chapter “Of Offences Against the Law of Nations,” adds
to Blackstone’s list of classic offenses (violations of safe conduct, in-
fringements of the rights of ambassadors, and piracy) the slave trade “as
a trade condemned by the general principles of justice and humanity,
openly professed and declared by the powers of Europe.”73 Others, par-
ticularly American writers, continued to maintain that the slave trade
was not piracy under the law of nations, although they also suggested
that conceding the right of search for slave traders might not be so bad
after all. In the 1878 edition of his treatise on international law, for ex-
ample, Yale professor Theodore D. Woolsey said:

as the slave-trade has not hitherto become piracy by the law of nations,
but only by the municipal and conventional law of certain nations, no
state can authorize its cruisers to detain and visit vessels of other states
on suspicion of their being concerned in this traffic, because the right of
detention and visit is a right of self-defense. Every state may to carry out
its laws and the laws of humanity, detain and search its own vessels in
peace also, but if, in so doing, mistakes are committed, the commander
of the searching vessel is responsible, and damages may be demanded.74

Moreover, he noted that the right “of reciprocal detention and visitation
upon suspicion of being engaged in the slave-trade has been conceded
by a considerable number of treaties.”75

H O ST I S H U M A N I G E N E R I S [ 133 ]
 There is substantial language about human rights (or the “rights of
man” or “natural rights”) in the arguments presented against the slave
trade. Woolsey’s 1860 edition of Introduction to the Study of International
Law explained that under the “correct views of human rights” slavery
was a status unprotected by the law of nations and that “new views of
men’s rights” had led to the prohibition of the slave trade in interna-
tional law.76 Abolitionist writings in the 1840s referred to “the cause of
human rights.”77 In 1806, petitions asking the U.S. Congress to prohibit
the slave trade described the trade as “an outrageous violation of one of
the most essential rights of human nature” and “degrading to the rights
of man.”78 And, as recounted in chapter 2, abolitionism was rooted in
part in Enlightenment ideas about natural rights.
Nevertheless, it is true that we also see quite a bit of language about
the interests or laws of humanity and the language of humanitarianism.
The Congress of Vienna, for example, declared the slave trade “repug-
nant to the principles of humanity and universal morality.”79 What is the
significance of these differences in terminology? At first glance, the
language of humanity might seem to detract from my attempt to describe
the international actions against the slave trade as an example of early
international human rights law by taking the focus away from individuals
as rights bearers and suggesting instead a kind of benevolent concern
grounded not in the idea of rights but in some kind of noblesse oblige
toward the less fortunate. But in fact, it is precisely this language of hu-
manity that captures the contemporary idea that violations of human
rights are of international, and not just local, concern. That is, it is this
language of humanity (drawn in part from much earlier writings about
the ius gentium) that helps propel natural rights from their eighteenth-
century link to social contract theory (with its focus on nation-states) to
the twentieth-century idea of human rights as matters of international
legal concern. A central aspect of international human rights law is that it
considers harm to individual persons to be the proper subject of interna-
tional concern. That is, it posits that the treatment of Mexican citizens in

[ 134 ] The Slave Trade and the Origins of International Human Rights Law
Mexico is the proper subject of concern of France, and Japan, and South
Africa. In this regard, human rights law does not focus exclusively on the
relationship between the rights bearer and the rights violator (as might a
purely domestic regime of protection for individual rights under a con-
stitution). Instead, international human rights law brings in outsiders—
the rest of humanity—and suggests that the rights violations are of
concern to them as well. This is little appreciated but is significant for
understanding the ways in which international human rights differ from
purely domestic conceptions of individual rights.
The word humanity is today defined as “people in general” or some-
times as “understanding and kindness towards other people.”80 The
1828 edition of Webster’s Dictionary defined it as “[t]he peculiar nature
of man by which he is distinguished from other beings,” as well as
“[m]ankind collectively; the human race,” and “kindness; benevolence;
especially, a disposition to relieve persons in distress, and to treat with
tenderness those who are helpless and defenseless; opposed to cru-
elty.”81 These multiple meanings are each represented in the discussions
of the slave trade, and in ways that reflect the presence of these ideas in
contemporary discourse about international human rights law.
The idea of humanity as a status—that humans have a particular
nature that distinguishes them from other beings and objects—flows
through writings from the scholastics through the Enlightment and
undergirds the ideas of natural rights that not only helped give rise to
the antislavery movement but also provide the foundation for contem-
porary international human rights law.
At the same time, the concept of humanity defined as “mankind col-
lectively” appears in arguments that the slave trade violates the laws of
humanity—that is, that it violates the ius gentium. The multiple mean-
ings of the word humanity are also reflected in the impulse to define
slave traders as hostis humani generis. Declaring slave traders to be hostis
humani generis suggests that because their actions deny the humanity of
those they abuse, they are an affront to humankind generally, and their

H O ST I S H U M A N I G E N E R I S [ 135 ]
punishment is thus the proper concern of humankind generally, regard-
less of national borders. As others have noted, the phrase “crimes against
humanity” is particularly felicitous because it captures the duality of
particular kinds of crimes—those that “offend against the human status
and that all humankind shares an interest in repressing.”82 It was in con-
nection with the slave trade that lawyers first began to deploy that du-
ality in seeking to make certain egregious violations of human rights
offenses cognizable under international law.
Moreover, the concept of crimes against humanity also stems from
another linguistic ambiguity present in debates over slavery and interna-
tional law, the ambiguity of the phrase ius gentium, which gradually grew
from meaning the law of people generally to mean the law governing
relations between nations. Ius gentium was originally a technical term
used to describe the body of Roman law that applied to foreigners and
governed mostly private civil matters. In this sense, it was quite distant
from modern international law, as it was not really a body of law that
governed the relations between nation-states.83 Later Roman writers
came to use the phrase ius gentium to describe a law that transcended
individual nations, though even in this usage it primarily concerned pri-
vate relations (such as contracts) rather than sovereigns’ relations to one
another. During this phase of its history, the ius gentium was considered
related to, and in large part based upon, the ius naturale, or natural law.84
As one Roman jurist in the second century a.d. described it:

That law which a people establishes for itself is peculiar to it, and is called
ius civile [civil law] as being the special law of that civitas [state], while
the law that natural reason establishes among all mankind is followed by
all peoples alike, and is called ius gentium [law of nations, or law of the
world] as being the law observed by all mankind.85

It was only gradually that the term ius gentium came to mean “law which
all the various peoples and nations ought to observe in their relations

[ 136 ] The Slave Trade and the Origins of International Human Rights Law
with each other,”86 eventually to be translated as the law of nations. De-
scribing the slave trade as a violation of the laws of humanity profitably
exploits the multiple historical meanings of ius gentium.
And what of the word humanitarian? It is actually not in the 1828
Webster’s Dictionary, and when it appears in the 1913 Webster’s Dictio-
nary the first two meanings are quite different from how it is used today:
“One who denies the divinity of Christ, and believes him to have been
merely human” or “[o]ne who limits the sphere of duties to human rela-
tions and affections, to the exclusion or disparagement of the religious
or spiritual.” Only the third definition, “benevolent; philanthropic,”
matches the modern usage, and this is described in 1913 as “recent.”87
The word humanitarian is today defined as “involved in or connected
with improving people’s lives and reducing suffering.”88 It denotes a
kind of benevolence not necessarily connected with the idea of legal
rights—as when people say, for example, that a prisoner has been
released for “humanitarian reasons.”89
As a technical term, the phrase “international humanitarian law”
refers to the body of law applicable in armed conflict, which is consid-
ered distinct from international human rights law in both origin and
content. The origins of contemporary international humanitarian law
are usually traced to mid-nineteenth-century developments including
the promulgation of the Lieber Code during the American Civil War
and the founding of the International Red Cross.90 The 1899 Hague
Conventions on the Laws and Customs of War include the famous
Martens Clause, which provides:

Until a more complete code of the laws of war is issued, the High Con-
tracting Parties think it right to declare that in cases not included in the
Regulations adopted by them, populations and belligerents remain
under the protection and empire of the principles of international law, as
they result from the usages established between civilized nations, from
the laws of humanity and the requirements of the public conscience.91

H O ST I S H U M A N I G E N E R I S [ 137 ]
The Martens Clause is often described as the source of the concept of
“crimes against humanity.”92 But the idea that the laws of humanity were
a proper topic of international legal concern had been embedded in the
nineteenth-century legal mind primarily in connection with the slave
trade. The dominant interpretation of the relationship between interna-
tional humanitarian law and international human rights law has interna-
tional humanitarian law coming first historically. In fact, they both share
common roots in the struggle against the slave trade, and in earlier con-
ceptions of the ius gentium.
This is not to say that the laws against the slave trade resembled
contemporary international human rights law in all respects. The
Nuremberg trials of the Nazi war criminals were an important, and
transformative, event. But the effort against the slave trade helped lay
the legal groundwork that made Nuremberg jurisprudentially pos-
sible. One of the most important conceptual developments that
made possible the contemporary international human rights regime
was the idea that violations of human rights are properly of global
and not just local concern. This idea was expressed in the writings of
early just war theorists, but the ideas of humanitarian intervention
threaded through the just war theories of Vittoria or Gentili or Gro-
tius did not result in an elaborate body of treaty law or international
courts. Rather, the idea first came to legal fruition with a global con-
sensus in favor of concerted international legal action against the
slave trade. The idea that nations should use international lawmaking
to protect the rights of individuals outside their own territory was
first put into practice with the effort to abolish the slave trade. A sec-
ond central principle of the contemporary human rights regime is
that national sovereignty is not an impenetrable barrier to interna-
tional legal action in the case of human rights violations. Attempts to
subject the slave trade to universal jurisdiction by declaring it piracy
foreshadowed this development but were not entirely successful. The
seed of the idea was planted in the nineteenth-century actions against

[ 138 ] The Slave Trade and the Origins of International Human Rights Law
the slave trade, but it was not until Nuremberg that the barrier would
be shattered.
Given the heavy focus by international human rights scholars on the
novelty and innovations of post–World War II developments in human
rights law, it is startling to find some of the very same debates about the
legitimacy of international human rights–based interventions occur-
ring almost a century earlier. During the debate over whether to aban-
don efforts to suppress the slave trade, for example, one member of the
British Parliament skeptically asked Palmerston whether suppression
was in England’s interest “apart from the interest of humanity.” Palmer-
ston argued that humanity was the main consideration, though there
were others.93
“Assuming that it is simply from motives of humanity,” the ques-
tioner continued, “do you think it a legitimate mode of disposing of the
resources of this country?” Palmerston answered in the affirmative,
calling it a “moral duty.”94 The prescient questioner then took Palmer-
ston’s argument to the extreme: “Supposing one nation abolished the
punishment of death, would it not be a legitimate effort of that govern-
ment to interfere with other nations, which had not done so, to induce
them to follow the example?” Palmerston stated that it would be legiti-
mate for a nation to pursue that goal, “or any other measure tending to
the interests of humanity,” in the same way England had pursued the
abolition of the slave trade.95 The antislavery effort was thus not only a
precursor to modern international human rights law but foresaw and
justified that body of law. States could legitimately be concerned with
the welfare of individual persons in other states and could covenant
with one another to protect the rights of those individuals. Crimes
against humanity and violations of individual rights were a proper sub-
ject of international lawmaking.

H O ST I S H U M A N I G E N E R I S [ 139 ]
CHAPTER 7

From Crisis to Success

The Final Abolition of the Slave Trade

E
ven as the mixed court system reached its peak of effectiveness
in terms of volume of cases in the late 1830s and early 1840s,
the weaknesses in the system discussed in the preceding chap-
ters led the British government to augment, and then replace, the mixed
court system with a combination of military force and domestic courts.
The pressure brought to bear by this shift in strategy—along with other
economic, political, and social changes—eventually led to changes in the
domestic policies of Portugal and Brazil that culminated in the ultimate
suppression of the slave trade under the domestic laws of those countries.
But the final surviving branch of the transatlantic slave trade, the traffic to
Cuba, was only extinguished once the British turned back to cooperative
international legal action by concluding a treaty with the Americans.

PORTUGAL

In the late 1830s, negotiations between Britain and Portugal failed to

produce a broader, more comprehensive treaty.1 The Portuguese raised
a number of objections to the proposed treaty, including its unlimited
duration.2 In response, the British resorted to a creative reinterpretation
of the 1817 Portuguese treaty. That treaty allowed the slave trade to
continue only between Portuguese possessions south of the equator.
After the independence of Brazil in 1826, Britain argued that Portugal
had no colonies in the Americas, and thus all trade under the Portu-
guese flag was illegal. Moreover, Portugal was in breach of its treaty ob-
ligations, and Britain was entitled to enforce those obligations by any
means necessary.3
Viscount Palmerston recognized that this was a debatable legal argu-
ment and that the Portuguese were likely to view Britain’s action as an
affront to Portuguese sovereignty. In a private letter to the British diplo-
mat in Lisbon, Palmerston wrote that if Portugal responded by declaring
war, “so much the better. . . . There are several of her colonies which
would suit us remarkably well.”4 In another letter, he stated, “We con-
sider Portugal as morally at war with us and if she does not take good
care and look well ahead she will be physically at war with us also.”5
Thus, in 1839, the Parliament passed a statute popularly known as
Palmerston’s Act that authorized the capture and condemnation of Por-
tuguese slaving vessels in British vice-admiralty courts rather than the
mixed commissions.6 The bill was initially rejected in the House of
Lords, where the Duke of Wellington and others argued that it would
encroach on the executive’s powers by bringing the nation to the brink
of war, not only with Portugal but with other maritime nations who
were offended by Britain’s aggressive efforts to police the oceans.7 Their
constitutional objections were answered by having the Crown first issue
orders to British officers to seize Portuguese ships (thereby preserving
the executive’s prerogative to make decisions that might lead to war)
and then by having the Parliament pass legislation to protect those
officers from possible indemnity lawsuits.8
Portugal viewed Palmerston’s Act as “a gross usurpation of power” and
“a flagrant violation of international law” but did not go to war over it.9
For the next three years, Portuguese-flagged slave vessels were captured

F R O M C R I S I S TO S U C C E S S [ 141 ]
by British cruisers and condemned either in the mixed courts on the
grounds that they were actually Spanish or Brazilian under the law of
nations, or in the British vice-admiralty courts under Palmerston’s Act.10
Portugal finally signed a new treaty in 1842 that both closed the
loopholes in the earlier treaties and expanded the number of mixed
commissions.11 Under the new treaty, the mixed commissions finally
had the power to keep slave crews in custody until they could be turned
over to their own government for prosecution,12 and the Portuguese
government began in earnest to prosecute at least some of these cases.13
Portuguese warships began seizing slavers off the coast of Africa in
greater numbers, and prize courts in the Portuguese colonies began
condemning those captured in coastal waters, over which the mixed
commissions lacked jurisdiction.14 By 1848, witnesses testified before
Parliament that Portugal had been seriously engaged in suppression ef-
forts for the past few years, though they disagreed on how universal or
effective those efforts were.15 Portugal’s decision to crack down on the
trade meant that slavers were less willing to fly the Portuguese flag, and
the business of the Anglo-Portuguese mixed courts never reached sig-
nificant levels again.16 In effect, the Anglo-Portuguese courts were killed
by their own success.

BRAZIL

A similar breakdown in relations between Britain and Brazil over the

slave trade occurred in 1845 and proved fatal to the Anglo-Brazilian
mixed courts. The treaty authorizing the Anglo-Brazilian courts argu-
ably expired on March 13 of that year.17 Brazilian officials, though not
willing to defend the slave trade publicly, refused to renew the treaty
and its provisions for the right of search and trials in mixed courts,
insisting that Brazil would suppress the trade with its domestic laws.18
Britain once again resorted to creative treaty interpretation. There
was no saving the mixed courts, since the Brazilians appeared to be

[ 142 ] The Slave Trade and the Origins of International Human Rights Law
correct about the expiration of the treaty authorizing them. But, as
noted in chapter 6, the British construed a separate provision of the
Brazilian treaty, which had declared the slave trade to be piracy, to
trigger the broader jurisdiction over piracy allowed by the law of na-
tions and to authorize the condemnation of Brazilian-flagged slaving
ships in British courts.19 In August 1845, Parliament passed Aberdeen’s
Act, which, like Palmerston’s Act, authorized the capture and condem-
nation of Brazilian and unflagged vessels. In the next few years, the vol-
ume of cases heard in the British courts increased dramatically.20 For
example, of the thirty-three cases heard by the vice-admiralty court at
St. Helena in the first six months of 1848, nineteen were Brazilian, while
the remainder had no papers.21
Aberdeen’s Act was not well received in Brazil. In addition to the
legal argument recounted in chapter 6, a number of other arguments
against the British actions were raised. In 1848, a Brazilian citizen who
was a former slave ship medical officer told the British Parliament that
Brazilians viewed the British suppression effort as either “wild and im-
practicable” or an effort to “check the rising prosperity of Brazil.”22 But
like Portugal, Brazil was neither willing nor able to go to war with Brit-
ain over the issue.23
Despite Britain’s aggressive use of vice-admiralty courts against the
Brazilian trade, the volume of the trade increased in the late 1840s. Ironi-
cally, the demand for slaves had been fueled by British free trade legisla-
tion that had removed tariffs on Brazilian sugar.24 The tension between
the two countries reached a climax in 1850–51, when a handful of British
ships began attacking slave vessels in Brazil’s territorial waters and even
its harbors.25 One of the British ships and a Brazilian fort even exchanged
shots. It was a small display of force, but it was effective. Brazil could not
afford to go to war with Britain (though it was also apparent that Britain,
with its commercial ties to Brazil, was not eager for war either).
Moreover, in recent years, popular sentiment against the slave trade
had grown in Brazil.26 The only face-saving option seemed to be for

F R O M C R I S I S TO S U C C E S S [ 143 ]
Brazil to put an end to the traffic itself. Thus, in September 1850, Brazil
enacted new anti–slave trade legislation and began to enforce it. Once
the Brazilian government began policing the landing and sale of slaves,
the number of slaves imported into Brazil dropped precipitously, from
more than 30,000 in 1850 to 5,000 in 1851 and none in 1853.27 One of
the last known slave ships to arrive in Brazil, the schooner Mary E.
Smith, which had been illegally outfitted in Boston, sailed in 1855. The
crew could not find any place to land its cargo of 400 slaves and began
to run out of food and water. A Brazilian warship finally captured the
unfortunate vessel. One American involved in the venture died in
prison, and the Brazilian government punished the other crew mem-
bers.28 In this manner, the slave trade into Brazil was finally extinguished,
though slavery itself was not abolished in Brazil until 1888.29

SPAIN, CUBA, AND THE UNITED STATES

Though relations between Spain and Britain were sometimes tense,

they never broke down in the same way relations with Portugal and
Brazil did. Instead, other factors led to the obsolescence of the Anglo-
Spanish courts. The decline in the courts’ cases began in the 1840s,
when a new captain-general of Cuba arrived in 1842 and began enforc-
ing the laws against the slave trade, and the open markets for newly
imported slaves in Havana were shut down.30 In 1845, the Spanish gov-
ernment passed stricter legislation for punishing illegal slave traders.31
Following this new legislation, the court at Sierra Leone was directed
to detain the captain and crew of Spanish ships until they could be car-
ried to the Canary Islands for criminal trial by the Spanish govern-
ment.32 The decline in slave imports to Cuba continued in the mid- to
late 1840s,33 and the British attributed this decline to stricter enforce-
ment by the Cuban authorities.34 Enforcement actions had driven
costs so high that, according to British officials in Havana, the trade
was no longer profitable.35 From the 1840s onward, the slavers became

[ 144 ] The Slave Trade and the Origins of International Human Rights Law
reluctant to fly the Spanish flag, evading the mixed courts’ jurisdiction
by sailing under the American flag or under no flag at all; only a handful
of cases came before the Anglo-Spanish courts after that.
In 1851, with slave imports at a record low in both Brazil and Cuba,
victory for the abolitionists seemed imminent. However, in the mid-
1850s, the slave trade to Cuba began to increase once more. An
increase in sugar prices led to increased demand for new slaves, even
at the higher prices that prevailed because of enforcement of the 1845
act. In addition, the colonial Cuban authorities had somewhat relaxed
enforcement.36 Moreover, tense relations between Britain and the
United States kept the British navy from engaging in the sort of ag-
gressive action in Cuban waters that had triggered domestic suppres-
sion in Brazil.37 The United States continued to object strenuously to
the search of its ships, and British mercantile interests supportive of
free oceans were more sympathetic to these claims. In addition, Brit-
ain did not want to give the United States any excuse to annex Cuba.
By 1860, the British were doing very little to suppress the slave trade
to Cuba.38
On the eve of the American Civil War, anything related to the insti-
tution of slavery might have been expected to be a delicate issue in the
United States. Ironically, however, by this time the illegality of the trans-
atlantic slave trade was a rare point of agreement between the North
and the South. Indeed, the constitution of the Confederate States of
America adopted in March 1861 actually banned the slave trade.39 In
the spring of 1860, the United States sent its own warships to Cuba,
where they reportedly conducted searches of suspected Spanish and
French slave vessels despite America’s lack of mutual search treaties
with those countries. Later that year, President Buchanan stated in his
message to Congress:

It is truly lamentable that Great Britain and the United States should be
obliged to expend such a vast amount of blood and treasure for the

F R O M C R I S I S TO S U C C E S S [ 145 ]
 suppression of the African slave trade, and this when the only portions
of the civilized world where it is tolerated and encouraged are the Span-
ish islands of Cuba and Porto Rico.40

But it was not until civil war broke out in the United States that a final
turn in policy helped set the stage for the ultimate suppression of the
transatlantic slave trade. In March 1862, Lincoln’s secretary of state,
William Seward, responded favorably to an approach by British diplo-
mats eager to conclude finally an effective anti–slave trade treaty with
the United States. The United States hoped to prevent Britain from
intervening in the war on the side of the Confederacy and thus wanted
to do what it could to foster goodwill in an otherwise tense relation-
ship. Moreover, President Lincoln’s administration viewed the extinc-
tion of the slave trade as a moral issue. Seward’s one request was that
the draft treaty appear to have come from the United States. The Brit-
ish readily agreed to the façade, manufacturing a fake correspondence
to make it seem as if the proposal had come from the Americans. On
April 25, 1862, the U.S. Senate unanimously ratified a treaty with Brit-
ain, which provided for mutual rights of search and the trial of slave
ships in mixed courts.41
Other factors in Cuba—including changes in attitudes, the increased
domestic enforcement of anti–slave trade laws, a decline in sugar prices
and a concomitant drop in the value of slaves, and the perception that
the institution of slavery itself might be doomed—also played a signifi-
cant role in the final suppression of the Cuban slave trade in the 1860s.42
But the abolitionists in Britain viewed the conclusion of the Anglo-
American courts treaty as the final nail in the coffin of the slave trade. As
one historian noted, “Henry Brougham, last survivor of the original
British abolitionist group of 1807,” spoke in the House of Lords about
the new treaty, saying it was “‘in many respects the most important
event that had occurred during the period of his sixty years warfare
against the African Slave Trade.’”43

[ 146 ] The Slave Trade and the Origins of International Human Rights Law
 The Anglo-American mixed courts never actually heard any cases,
but that was in large part because no slave ships were willing to use the
American flag once the treaty was signed. The network of treaties,
begun forty-five years earlier, was complete. Finally, no flag existed
under which the traffic could continue with impunity. The transatlantic
slave trade was dead.

F R O M C R I S I S TO S U C C E S S [ 147 ]
CHAPTER 8

A Bridge to the Future

Links to Contemporary International
Human Rights Law

W
hy have contemporary scholars of international law
largely forgotten the antislavery courts? The standard ac-
count of the development of international human rights
law begins in earnest with the post–World War II era, with the Nurem-
berg trials and the drafting of foundational international human rights
instruments such as the UN Charter, the Universal Declaration of
Human Rights, and the Genocide Convention.1 Likewise, most ac-
counts of the history of international courts and tribunals describe the
Permanent Court of Arbitration, established in 1899, and the Perma-
nent Court of International Justice, created in 1921, as the first perma-
nent international adjudicatory bodies,2 and the International Military
Tribunal at Nuremberg as the first international tribunal charged pri-
marily with enforcing humanitarian norms.3 The term “crimes against
humanity” is said to have originated around 1915. Earlier developments
in human rights law or international adjudication—like the ad hoc arbi-
trations for settlement of war claims between the United States and
Britain arising out of the Revolutionary War and the Civil War and the
development of the humanitarian laws of war—are acknowledged, but
generally receive only passing attention.
Indeed, as one scholar has noted, many historical accounts of human
rights jump directly to 1945 from the American and French Revolu-
tions in the late eighteenth century.4 In so doing, these accounts at-
tribute the sudden resurgence of human rights ideology as “a reaction to
the atrocities committed during the Second World War.”5 They assume
that the idea of human rights was largely dormant and underwent little
further intellectual development during most of the nineteenth and
early twentieth centuries, that it arose almost out of nowhere in the im-
mediate aftermath of World War II, at which point it took form in the
international legal arena for the first time.6 This discontinuous story is
simply wrong. Scholars are just beginning to fill in the missing pieces of
the pre–World War II history of international law as a mechanism for
the protection of human rights, and the anti–slave trade movement is a
central part of that missing picture.7
As recounted in chapter 6, the conceptualization of the slave trade
as a crime against humanity, and of slave traders as hostis humani ge-
neris helped lay the conceptual foundation for twentieth-century inter-
national human rights law. Legal actions against the slave trade
introduced into modern international legal discourse the idea that vio-
lations of human rights were offenses of concern to humankind gener-
ally, and not just matters between a people and their sovereign. This is
the key conceptual step that separates the contemporary world of in-
ternational human rights law from the ideas of natural and universal
rights that arose during the Enlightenment and took national legal
form in documents like the Declaration of Independence, the U.S.
Constitution, and the French Declaration of the Rights of Man (which
focus on the relationship between individuals and the sovereign states
where they reside). This is the idea that through treaties and interna-
tional legal institutions nations can legally express the conviction that

A B R I D G E TO T H E F U T U R E [ 149 ]
violations of human rights are of concern to all. This is the conceptual
development that undergirds the words of the preambles of the Uni-
versal Declaration of Human Rights and the International Covenant
on Civil and Political Rights, that “recognition of the inherent dignity
and of the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the world.”
This is also the development that lays the foundation for the idea that
international cooperation can be necessary to eradicate human rights
violations, a recognition reflected in the Genocide Convention’s asser-
tion that the crime of genocide “has inflicted great losses on humanity”
and that, “in order to liberate mankind from such an odious scourge,
international co-operation is required.” It is precisely this blending of
the idea of individual human rights with broader ideas of humanity
and humanitarianism that allows for international legal institutions
like the International Criminal Court, where nation-states take an in-
terest in the protection of the human rights of people who are not their
citizens. International human rights law is precisely not about the iso-
lated, atomistic individual as rights bearer, but about a shared hu-
manity in which we are concerned with the rights and dignity of others.
One potential objection to my characterization of the slave trade tri-
bunals as the world’s first international human rights courts is that the
humans whose rights were being violated—the African captives—
were not prime characters in the courts’ operations. But this conflates
the way individual rights are traditionally expressed in domestic legal
fora—for example, in a national court on a claim of a constitutional
rights violation—with the rather different modes in which interna-
tional human rights claims are asserted. Certainly, under some interna-
tional human rights treaties, individual persons have the right to go to
court and raise claims, as before the European Court of Human Rights.
But much of international human rights law in operation is not so indi-
vidualistic and is instead focused on broader problems or issues—the
report and investigations of a UN Special Rapporteur on Torture, the

[ 150 ] The Slave Trade and the Origins of International Human Rights Law
site visit of the Inter-American Commission on Human Rights to Ciu-
dad Juarez to investigate violence against women,8 or the trial in the
International Criminal Tribunal for the former Yugoslavia of a criminal
defendant for the genocidal massacre at Srebrenica. One of the fre-
quent criticisms of court proceedings even today (whether criminal or
civil, domestic or international) is that victims of rights violations are
often given little voice in the proceedings. The post–World War II trials
at Nuremberg and Tokyo, for example, relied primarily on documen-
tary evidence, not live testimony of victim witnesses.9 One commen-
tator writing about the International Criminal Tribunal for Rwanda
and the International Criminal Tribunal for the Former Yugoslavia, for
example, noted that “victims do not play an autonomous role” and
have no right to participate as independent parties in the proceedings,
which means that for many victims, the international trials are experi-
enced as “justice denied.”10 Indeed, one reason that some activists
today suggest truth and reconciliation commissions as an alternative or
supplement to other types of trials is that a nonjudicial format often
allows victims greater participation and ownership of the proceedings.
While the most recent international courts, like the International
Criminal Court and the Extraordinary Chambers in the Courts of
Cambodia, provide a greater role for victims in court proceedings,
finding a way to give human rights victims a meaningful role in formal
legal proceedings remains a persistent problem. The nineteenth-century
slave trade tribunals are thus not atypical in the lack of voice they give
to the individuals whose rights have been violated; rather, they are en-
tirely typical of one unfortunate aspect of contemporary international
human rights practice.
While contemporary international lawyers have largely forgotten the
slave trade tribunals, those tribunals had not been entirely forgotten by
those who were involved in setting up the post–World War II interna-
tional legal framework. Some of those involved in the twentieth-century
development of international human rights law were well aware of the

A B R I D G E TO T H E F U T U R E [ 151 ]
role of international law and cooperation in the suppression of the slave
trade in the previous century. At the founding convention of the United
Nations in San Francisco in 1945, representatives of nongovernmental
organizations (NGOs) were pivotal in pushing for references to human
rights to be included in the UN Charter.11 The great powers that had
crafted the charter had not included any mention of human rights in the
original draft. One of the nongovernmental representatives present at
the convention was W. E. B. DuBois, there on behalf of the National
Association for the Advancement of Colored People.12 DuBois had
written his doctoral dissertation on the suppression of the slave trade,13
and through his attendance at several Pan-African Congresses in the
early decades of the twentieth century he had coupled his work on
behalf of African Americans with broader international efforts to pro-
mote human rights. Other NGOs active in the post–World War II pe-
riod could likewise trace their genealogy to the nineteenth-century
abolition campaign.14
More specifically, specialists writing about international courts
and tribunals in the late nineteenth and early twentieth century
remained aware of the nineteenth-century slave trade tribunals. John
Bassett Moore’s influential treatise, International Adjudications: Ancient
and Modern History, recounts that the French writer Renault in 1879
had noted that “mixed courts” of an international nature “may be
constituted in a permanent manner; this is rare, but it has some-
times been done in order to adjudicate prizes made in pursuance of
conventions establishing the right of visit for the repression of the
slave trade.”15
In 1944, Judge Manley O. Hudson of the Permanent Court of Inter-
national Justice and the Permanent Court of Arbitration wrote a book,
International Tribunals: Past and Future, for the Brookings Institution
and the Carnegie Endowment for International Peace.16 The purpose
of the book was to consider past experience with international courts
and tribunals in deciding what should be done after World War II

[ 152 ] The Slave Trade and the Origins of International Human Rights Law
ended: “The problem of international organization now looms before
the peoples of the world as one of the great responsibilities in our win-
ning the war.”17 Hudson was aware of the details of the slave trade tri-
bunals and discussed them in several places. To begin with, in
recounting the history of international tribunals, Hudson notes, “Sev-
eral tribunals of a continuing and more or less permanent nature were
created under treaties for the suppression of the African slave trade”
and briefly recounts the nature and structure of the mixed commis-
sions. He notes that the commission in Sierra Leone “disposed of 535
cases in the period from 1819 to 1866” and “resulted in the emancipa-
tion of more than 55,000 slaves.”18 Later, in discussing the structure of
international tribunals more generally, Hudson again refers to the slave
trade tribunals and their structure.19 Finally, in discussing proposals for
a permanent international criminal court, Hudson explains, “If inter-
national law be conceived to govern the conduct of individuals, it
becomes less difficult to project an individual penal law.”20 Describing
the historical treatment of pirates as “enemies of all mankind” and of
piracy as “an offense against the law of nations,” he notes that “the con-
ception of piracy as an offense against the law of nations has been
seized upon, by way of analogy, for the service of other ends” and that
“[v]arious treaties of the nineteenth century provided for the possi-
bility of States’ punishing persons engaged in the slave trade as
pirates.”21 He adds, “Power to take cognizance of crimes committed by
individuals has but rarely been conferred on international tribunals in
the past”22 and observes:

The numerous tribunals set up by bipartite treaties concluded by Great

Britain with other States in the earlier part of the nineteenth century,
were given power to condemn and destroy or confiscate vessels engaged
in the slave trade, but the masters and crews of such vessels were required
to be delivered to certain States for punishment in accordance with their
national laws.23

A B R I D G E TO T H E F U T U R E [ 153 ]
 Although Hudson ultimately concludes that there was “little pros-
pect for the establishment of a permanent international criminal court”
at that moment,24 this discussion—by a prominent international judge,
just a year before the Nuremberg Trials—shows that the slave trade
regime factored into considerations of the feasibility of holding indi-
vidual persons internationally responsible for human rights violations
(another one of the key innovations of Nuremberg).
Other supporters of proposals for international criminal courts both
before and after World War II used the slave trade, along with piracy, as
an example of a crime under the law of nations for which individuals
could be held personally liable. An international congress that was held
in 1926 supported the development of international criminal law, for
example, and participants there mentioned the slave trade as an ex-
ample of international crime.25 The slave trade continued to be given as
an example of an offense against international law in succeeding years.26
But though international lawyers do still talk about slave traders as hostis
humani generis today, they do not remember that international courts
played a significant role in suppressing the slave trade in the nineteenth
century. There is not one simple, satisfactory explanation for the disappear-
ance of the antislavery courts from the early twenty-first-century interna-
tional law canon. Certainly, as Judge Hudson’s 1944 report shows, there
was still some memory of the courts among international lawyers at the
time that the Nuremberg trials were planned. But in the years following
World War II, they dropped out of mention. Perhaps the shameful com-
plicity of so many nation-states in the institution of slavery makes this story
less appealing than the Nuremberg narrative, which conveniently attributes
responsibility for the Holocaust to a handful of individuals from a losing
nation (Germany). The British abolitionist discourse contains embarrass-
ing overtones of the “white man’s burden,” and the controversial history of
colonialism extended for a hundred years after the abolition of slavery. For
scholars in the United States, perhaps America’s problematic (but eerily
familiar) role as the reluctant outsider in the antislavery regime is less

[ 154 ] The Slave Trade and the Origins of International Human Rights Law
appealing than its starring turn at Nuremberg with Justice Jackson’s elo-
quent speeches as chief prosecutor. Perhaps with so many of the records of
the courts buried in handwritten archives, their story was simply forgotten.
Two things in particular seem evident from the immediate post–
World War II period, the moment when knowledge and discussion of
the slave trade courts seems to have fallen out of international legal dis-
course. First, many of the World War II–era architects of the new inter-
national legal regime felt the need to distance international human
rights from European history to make it more globally legitimate. In
December 1942, Hersch Lauterpacht (then a professor of law at Cam-
bridge and later a judge on the International Court of Justice) delivered
an essay before the Grotius Society titled “The Law of Nations, the Law
of Nature and the Rights of Man.”27 Lauterpacht noted that the idea of
an International Bill of the Rights of Man was “independent of any doc-
trine of natural law and natural rights,” but argued that

to eliminate the ideas of natural law and natural rights from the study of
the question of the international protection of human rights is to
renounce the faculty of understanding their growth in the course of his-
tory and their association with that law of nations which is now to
become its ultimate sanction.28

In the course of creating the postwar human rights regime, and in

particular in drafting the Universal Declaration of Human Rights, how-
ever, it became strategically advantageous to distance the contempo-
rary international human rights project from the particularities of
European history. This was necessary because of the ways in which ar-
guments about human rights and humanitarian intervention had been
deployed in past periods of world history as an excuse for European
conquest and colonization. Dwelling extensively on the slave trade,
which European international law had so long sanctioned, would hardly
have advanced this goal of a fresh start.

A B R I D G E TO T H E F U T U R E [ 155 ]
 Second, discussions of international courts and international crimi-
nal law in the era immediately before and after World War II were
focused more on “crimes against peace” rather than “crimes against hu-
manity,” in ways that have almost been forgotten—though the recent
review conference at which states participating in the International
Criminal Court adopted a definition of the crime of aggression has
revived interest in the central role played by “crimes against peace” at
Nuremberg. The charter for the Nuremberg tribunal included “crimes
against humanity,” defined as “murder, extermination, enslavement, de-
portation, and other inhumane acts committed against any civilian
population.”29 But these crimes were only treated as cognizable when
committed in connection with the two other classes of crimes under
the court’s jurisdiction: war crimes and crimes against peace.
Discussions of international criminal law both immediately before
and after Nuremberg focused on crimes against peace, or crimes that
threatened peace. In the 1920s, there were proposals to create an inter-
national criminal court under the auspices of the League of Nations,
and discussions mentioned the slave trade and piracy along with other
offenses, such as war crimes.30 The main focus, however, was on pre-
venting warfare, and the proposal went nowhere. There was another
proposal in 1937 for an international criminal tribunal to combat ter-
rorism, which also focused on the potential for terrorist acts (specifi-
cally assassinations) to trigger wars. Although the treaty never entered
into force, it was discussed throughout the years of the war, as in one
1942 article, “International Criminal Justice in Time of Peace.”31 Fol-
lowing the war, the issue was taken up again. As one article in 1950 on
the possibility of a permanent international criminal court argued, in-
ternational crimes could be divided into two categories: “crimes con-
sisting of acts against the peace and security of mankind” and more
ordinary crimes “such as piracy, slave trade, traffic in women and chil-
dren.”32 The first group, it was argued, are

[ 156 ] The Slave Trade and the Origins of International Human Rights Law
 internationally injurious . . . because they contribute to the preparation
or conduct of a prohibited war, or to the violation of the laws and cus-
toms of war, or to the creation of situations likely to endanger peace, or
finally because they conduce to the pursuit of a national policy revolting
to the sentiments of mankind.33

The second group—things like the slave trade—the author believed

were of less concern because they “do not prejudice international rela-
tions”34 (a rather ironic conclusion if one takes into account the broad
sweep of history). Thus, the author argued, with respect to these, “pro-
gress ought to take the form of generalization of the instances in which
national courts already have extraterritorial jurisdiction in the direction
of universal competence rather than in giving the international criminal
court more jurisdiction than it can perhaps adequately handle.”35 In
other words, international law ought to be primarily concerned with
crimes that threatened to lead to international war, not other types of
international offenses. Another article in 1952, “Proposal for an Inter-
national Criminal Court,” made a similar observation, distinguishing
“piracy, banditry and breaches of the law of war and such offenses as
slave-trading and cable-cutting” from “offenses against peace and hu-
manity” such as “aggression, terrorism and genocide,” which have a “po-
litical character” and are “initiated or stimulated by governments” and
which are “the most important type of crime against the law of na-
tions.”36 To put it bluntly, by the mid-twentieth century, the slave trade
no longer seemed important. The millions killed by nation-states during
the course of World War II seemed like a far bigger problem, and that
was all anyone wanted to talk about. At the same time, the problem of
decolonization in Africa likely made European countries reluctant to
discuss the details of their past relations with the continent. The slave
trade tribunals, and their contribution to the development of interna-
tional law, were conveniently forgotten.

A B R I D G E TO T H E F U T U R E [ 157 ]
CHAPTER 9

International Human Rights Law

and International Courts
Rethinking Their Origins and Future

A
t the dawn of the twenty-first century, international human
rights law manages to generate both widespread support and
deep skepticism. On the one hand, human rights are incredi-
bly popular, even in unexpected quarters. In a 2008 survey of people in
dozens of countries around the globe, more than 70 percent of respon-
dents agreed that the United Nations should actively promote human
rights in member states, notwithstanding concerns about national sov-
ereignty, including large majorities in almost every country surveyed,
which were as varied as Argentina, Russia, Kenya, China, Egypt, and
the United States.1 In the United States, even conservative Republicans
celebrate Human Rights Day. In 2003, on the fifty-fifth anniversary of
the adoption of the Universal Declaration of Human Rights by the UN
General Assembly, then–U.S. President George W. Bush issued a proc-
lamation in honor of Human Rights Day and stated, “Freedom is the
right of mankind and the future of every nation. . . . It is God’s gift to
every man and woman who lives in this world.”2
 On the other hand, skepticism is unavoidable. Conservative radio
talk show host Glenn Beck has argued that “anything with State Depart-
ment and international law, they are all socialist, Marxist international-
ists or a combination of all of them. . . . Once we sign our rights over to
international law, the Constitution is officially dead.”3 More serious
commentators express skepticism in equally strong if more measured
terms; the title of one academic article summed up these critics by
asking, “International Human Rights Law: Imperialist, Inept and Inef-
fective?”4 Another article argues:

international human rights treaties have had little or no impact on the

actual practices of states. The Genocide Convention has not prevented
genocides; the Torture Convention has not stopped torture. . . . States
that already respect human rights join human rights treaties because
doing so is costless for them. States that do not respect human rights
simply ignore their treaty obligations.5

Others contend that the international human rights movement is “part

of the problem”—Western, hegemonic, ineffective, hypocritical.6
One persistent criticism levied in American legal circles is that inter-
national human rights law is a novel and illegitimate invention of the
twentieth century that is inconsistent with an originalist interpretation
of the U.S. Constitution. For example, in a 2004 case concerning the use
of the Alien Tort Statute of 1789 to bring civil lawsuits against human
rights violators, Supreme Court Justice Antonin Scalia argued in his
concurring opinion that:

The notion that a law of nations, redefined to mean the consensus of

states on any subject, can be used by a private citizen to control a sover-
eign’s treatment of its own citizens within its own territory is a 20th-century
invention of internationalist law professors and human rights advo-
cates. . . . The Framers would, I am confident, be appalled by the propo-
sition that, for example, the American peoples’ democratic adoption of

I N T E R N AT I O N A L H U M A N R I G H TS L AW [ 159 ]
 the death penalty . . . could be judicially nullified because of the disap-
proving views of foreigners.7

Notwithstanding Justice Scalia’s clairvoyant certainty that the Framers

would be horrified by international human rights law, that body of law
is not an “invention” of the mid-twentieth century but instead has
deeper and more ancient roots. In part, it stems from the same ideas of
natural rights that inspired and informed the American Revolution and
the declaration by America’s founders that all men were endowed “with
certain unalienable Rights” that not only transcended the nation-state
in which they found themselves but that entitled them to break free of
a government that denied those rights. The same philosophers who
posited the existence of a natural law that encompassed unalienable
rights also saw the law of nations as part of that fabric of natural law
transcending nation-states. During the nineteenth century, the United
States and other nations agreed that they could voluntarily consent to
make the behavior of their citizens on their ships the concern of other
nations. And they accepted that the universal consent of all nations
could make something a universally cognizable offense. To be sure,
they were jealous of their sovereignty and emphasized the need for na-
tional consent to be bound by the international legal regime. But they
accepted the legitimacy of international lawmaking focused on the
rights of individuals and the shared interests of humanity in their pro-
tection; they did not consider human rights to be an illegitimate topic
for treaty making.
The road from the ius gentium and ius naturale of ancient and medi-
eval times through the laws of nations and natural rights of the Enlight-
enment to the international human rights law of the twentieth century
crosses the path of slavery and the slave trade at numerous points in the
nineteenth century, and these intersections are important for under-
standing the jurisprudential origins of international human rights law.
Among other things, the history of the legal treatment of slavery sheds

[ 160 ] The Slave Trade and the Origins of International Human Rights Law
light on long-standing tensions between ideas of natural law and legal
positivism (the idea that all laws must be traced to the formal acts of a
sovereign), and between concepts of law that treat the nation-state as
the primary (or even sole) source of law and concepts that include
sources of law that potentially transcend individual nation-states.
The tension between ideas of natural law and legal positivism is one
of the dominant, if deeply submerged, axes of debate in modern inter-
national law and international relations theory even today. International
human rights law is sometimes still criticized for being too heavily
based on natural law principles, which are seen as suspect in a secular,
pluralistic world. What exactly is the source of the universality of the
Universal Declaration of Human Rights? Defenders of international
human rights will quickly point to that document’s positivist creden-
tials—its ratification without dissenting vote (though with a few ab-
stentions) by the UN General Assembly in 1948. But to deny the
Universal Declaration of Human Rights its moral underpinning is to
deny it some of its force. The Universal Declaration of Human Rights is
about right and wrong.
The secret puzzle of international law is that it is not just human
rights law that has naturalistic underpinnings. Modern international
law is strongly positivist in form, but once one goes beneath the surface,
things become considerably more complex. The voluntary consent of
sovereign states is said to be the basis of the international legal regime.
The reason we have a United Nations is that almost every country in the
world signed a treaty voluntarily creating the institution. Torture is il-
legal not because it is morally wrong nor because it is not useful, but
rather because it is expressly outlawed in numerous treaties that have
received nearly universal ratification and through the practice of states
suggesting that they view torture as illegal. So too, with slavery and slave
trafficking today. Certainly, the fact that national governments and the
people who make them up believe torture and slavery are wrong or not
useful may be one of the reasons why they have signed onto laws against

I N T E R N AT I O N A L H U M A N R I G H TS L AW [ 161 ]
these practices; but the moral (or utilitarian) arguments against them
are said to have no legal force of their own. The authority of the Torture
Convention is the authority of positive law.
Yet the emphasis on legal positivism conceals the normative choices
underpinning the entire structure—for example, the decision to treat
nation-states (rather than individual people or communities of people
grouped in some other way) as the building blocks of the legal order,
and to give those states certain rights, such as territorial exclusivity and
absolute equality with other states in terms of their formal legal rights.
To be sure, these foundational assumptions are “positive” in the sense
that they track the world as it actually exists; despite loose talk about
the end of sovereignty and the irrelevance of national borders in the age
of jet travel, nuclear weapons, and the Internet, states are still the basic
building blocks of the international community. But the argument that
sovereign states have a right to torture people is just as normative as the
argument that people have the right not to be tortured.
Given how central the tension between normative and positive argu-
ment is to modern international legal theory, it is illuminating to see how
these tensions played out over centuries of philosophical development
concerning the status of slavery and the slave trade. Moreover, giving the
antislavery courts and treaties the central place they deserve in the inter-
national human rights law narrative changes that narrative in important
ways. Compared to the post–World War II, Nuremberg-centric story,
an understanding of international human rights law that begins with
the antislavery movement places a much greater emphasis on nonstate
actors—both the slave traders who were the human rights violators and
the civil society leaders of the abolitionist movements in various coun-
tries. While Nuremberg was concerned with individual criminal liability,
it was focused on crimes committed at the behest of nation-states;
indeed, crimes against humanity were only recognized at Nuremberg to
the extent they were perpetrated in connection with the crime of aggres-
sive war that was the principal basis for the court’s jurisdiction.

[ 162 ] The Slave Trade and the Origins of International Human Rights Law
 Modern international courts like the International Criminal Tribu-
nals for the former Yugoslavia (ICTY) and Rwanda (ICTR) have like-
wise focused on crimes committed in armed conflict by individuals
who are either affiliated with the state or who aspire to statehood. As
shown by the work of these modern courts, the paradigmatic interna-
tional trial is still based on the Nuremberg model: individual leaders are
charged with responsibility for acts of mass slaughter and mistreatment
of civilian populations in the context of warfare. Nuremberg is a pow-
erful and important precedent, but it has a somewhat limiting effect on
the scope of conduct that we imagine falls within the realm of interna-
tional concern and redress.
Reviving the centrality of private transnational actors to the history
of international human rights law’s origins highlights the possibility of
making international legal mechanisms a more central tool for address-
ing human rights violations by private actors today. What about non-
state terrorist organizations that commit war crimes and crimes
against humanity, or individuals and businesses engaged in contem-
porary forms of forced labor trafficking? This would represent a dra-
matic shift in the focus of international human rights law and activism.
Most of the debate about the International Criminal Court (ICC), for
example, focuses on its role in preventing and punishing acts of state-
sanctioned violence and the threat to state sovereignty posed by inter-
national prosecutions of national government officials.8 Comparatively
little attention has been given to the possibility of using an interna-
tional court to address terrorism by nonstate actors,9 human traf-
ficking, or the role of corporations in grave human rights abuses.
Indeed, as Philip Alston points out, nonstate actors have sometimes
been viewed as falling outside the primary scope of international
human rights law, which focuses on states themselves.10 And yet, the
antislavery story told here suggests that one of the most suitable uses
for international courts may be combating illegal action by nonstate,
transnational actors. Why not, for example, consider using an

I N T E R N AT I O N A L H U M A N R I G H TS L AW [ 163 ]
international court to address modern issues of slave labor and human
trafficking with transnational dimensions?
Moreover, the history of the slave trade treaties casts doubt on the
recent assertions by some commentators and courts that corporations
are immune from international human rights law.11 Joint stock com-
panies, the earliest forms of corporations, played an important role in
the early slave trade.12 The involvement of joint stock companies in the
slave trade dramatically declined after the trade was banned, and the
trade shifted to smaller operators. At least one ship owned by a joint
stock company was condemned by the international slave trade tribu-
nals in the 1830s.13 In that case, the judges noted that the joint stock
company’s willingness to engage in the trade was evidence of the slack-
ness of local authorities in enforcing the slave trade ban. Joint stock
companies clearly believed that the treaties banning the slave trade ap-
plied to them; otherwise, an easy way to avoid the ban would have been
simply to incorporate.14
The history of the antislavery treaties also underscores the potential
for the dissemination of human rights ideology across national borders,
both through networks of nonstate actors and through the mediating
force of international law and international legal institutions. In the
nineteenth century, Quakers on both sides of the Atlantic spread the
ideology of antislavery beyond their sect; in the twenty-first century,
secular NGOs in conjunction with evangelical Christians seek to influ-
ence foreign policy on human rights issues such as genocide in the
Sudan, sex trafficking, and the AIDS pandemic.15
Giving the antislavery courts their rightful place in the international
human rights narrative also broadens the focus of that narrative beyond
states’ relationships with their own citizens to include the relationships
between citizens of more developed and less developed countries. The
principal conceptual innovation of Nuremberg and the postwar human
rights regime was ostensibly to move international law beyond its pre-
occupation with state-to-state relations; the Nuremberg prosecutions

[ 164 ] The Slave Trade and the Origins of International Human Rights Law
pierced the veil of sovereignty and made a state’s treatment of its own
citizens a proper concern for international law.16 This was certainly an
important development. But many of the most pressing contemporary
human rights problems do not involve states’ treatment of their citizens,
but rather the obligations, if any, of citizens in wealthy countries to
those in less developed countries.17 Forty-four percent of people in sub-
Saharan Africa live on less than one dollar per day.18 Some 824 million
people in the developing world live with chronic hunger.19 Roughly 2
million people in sub-Saharan Africa die of AIDS each year.20 And each
year half a million children worldwide still die of the measles, even
though vaccination against that disease is one of the most cost-effective
public health measures.21
To be sure, few if any of these problems are susceptible to resolution
by international courts. But most will require some form of coordinated
international action. To those who think that it is impossible that citi-
zens of developed countries should ever care enough about people on
the other side of the world to devote significant resources to these prob-
lems, the abolition of the slave trade stands as a stark counterexample.
People did care. Nations did cooperate. And in the span of a human life,
the transatlantic slave trade was extinguished.
In addition, close examination of the history of the abolition of the
slave trade should cause international legal scholars to rethink the rela-
tionship between power, ideas, and international legal institutions. To
the extent that the treaties against the slave trade and the mixed courts
were effective, it was in no small part because Britain was willing to use
its substantial economic and military power to support them. At the
same time, the international legal regime gave Britain’s use of its eco-
nomic and military power a legitimacy that it would have otherwise
lacked, and it amplified Britain’s ability to influence other nations’ con-
duct with regard to the slave trade. Once other nations had agreed in
principle to the immorality of the slave trade, it was difficult for them to
overtly oppose efforts to suppress that trade.

I N T E R N AT I O N A L H U M A N R I G H TS L AW [ 165 ]
 Moreover, Britain was able to project its momentary power at the
end of the Napoleonic Wars far into the future by creating permanent
international legal mechanisms that operated for decades to come in
support of its abolitionist agenda. In the immediate aftermath of the
Napoleonic Wars in 1817, Britain perhaps had the military power to
seize Portuguese and Spanish slave ships whether or not those nations
agreed. But because of the treaties, Britain was able to continue to seize
their ships twenty years later in 1837, an exercise of power it might not
otherwise have been willing or able to carry out in the absence of the
treaties. Over time, Britain was even able to persuade more powerful
countries like France and the United States to join in the increasingly
universal international legal regime against the slave trade, something
that might not have been possible without the initial treaties. Moreover,
even when Britain subsequently engaged in somewhat dubious unilat-
eral actions against the slave trade, it was at least able to argue that those
actions were justified under the spirit of the treaties, forestalling a more
vigorous opposition from the affected countries.
The potential for a mutually beneficial and reinforcing relationship
between state power and international law is missing from many con-
temporary theories. Most theories of international adjudication assume
that because of the absence of world government, international courts
are by definition powerless institutions with no hard enforcement
powers, dependent instead on the negative reputational consequences
that noncompliance with the courts’ decisions might have.22 For propo-
nents of international courts, this assumption leads to a tendency to
discount the importance of state power and to focus instead on factors
that magnify or reduce the reputational consequences of court
decisions. For skeptics of international courts, this assumption causes
doubt about the efficacy of international adjudication. Ironically, both
arguments are wrong, or at least incomplete. Both sides overlook the
possibility that powerful individual states might have the incentive and
ability to enforce the judgments of international courts, and that such

[ 166 ] The Slave Trade and the Origins of International Human Rights Law
actions might be perceived as more acceptable and legitimate by other
states than would unilateral action by those same powerful nations.23
The role of state power in supporting international courts does not
appear to be entirely unique to the antislavery courts. Indeed, a similar
lesson can be seen in the experience of the ICTY. After its creation by
the UN Security Council, the ICTY indicted war criminals from the
former Yugoslavia. The ICTY itself lacked enforcement power, but many
of those war criminals were apprehended by NATO forces. Others, like
Slobodan Milošević, were handed over to the tribunal in response to a
combination of threats and bribes related to foreign aid.24 Just as with
the antislavery courts, the ICTY’s success has been tied to the willing-
ness of particular nations to use their economic and military power to
support its legal work. In turn, the ICTY’s legal mandate has given
greater legitimacy to the involvement of NATO and the EU over many
years in what would otherwise be considered the domestic affairs of the
Balkan countries.
Certainly, national governments’ use of economic and military pow-
ers to buttress international court judgments would not be effective or
plausible for all international dispute resolution bodies. Moreover, such
actions might be highly troubling in some circumstances, especially to
the extent that they undermined the equality of nations by amplifying
differences in state power. There is a fine line between using power to
support international institutions and abusing power through interna-
tional institutions.
But fraught as it is, the relationship between international courts and
national economic and military enforcement powers is an area that
deserves greater study by international legal academics, and greater
consideration by policymakers.
The history of the antislavery courts is not only a story of military
and economic power, however, but also a story about the power of ideas.
Those who are realistic about state power often underestimate the
extent to which ideology can affect human behavior and the behavior

I N T E R N AT I O N A L H U M A N R I G H TS L AW [ 167 ]
of the nation-states made up of those very same humans. Britain’s mul-
tidecade campaign against the slave trade demonstrates the fact that na-
tions can be influenced by moral ideas as well as material self-interest.
Constructivist international relations scholars, among others, have
highlighted the potential of transnational networks and international
legal regimes for influencing state behavior by influencing state percep-
tions of self-interest. Abolitionism appears to have taken hold in Britain
largely as a result of domestic social and political forces, but abolition-
ism’s spread to so many countries around the world in a short period of
time is less well-explained.25 A detailed analysis of the way in which the
ideology of abolition took root in many disparate slave-holding societies
requires in-depth study of social history that is beyond the scope of this
book. But the narrative recounted here at least suggests the possibility
that it was no mere coincidence of social conditions in different coun-
tries or even transnational networks of nonstate actors that fostered the
spread of abolitionist ideology. Instead, at least some small role was
played by international treaties and international courts themselves.
Certainly, those who were most closely involved in the negotiation
and enforcement of the antislavery treaties thought so. Palmerston, for
example, argued that “the efforts of this country to engage other gov-
ernments in co-operating for the suppression of the slave trade have
very much tended to awaken a moral feeling in other countries upon
that subject.”26 When Britain bribed Spain, Portugal, and Brazil to sign
the antislavery treaties, it is not clear that either elites or a majority of
the population in each of these nations believed what the treaties said—
that the traffic in slaves was unjust and inhumane.27 Yet by the time the
slave trade was finally suppressed some fifty years later, the Brazilian
foreign minister felt that “‘the whole of the civilised world’” was con-
vinced of its immorality.28 Changes in domestic attitudes were critical
to the final suppression of the slave trade. The possibility that the uni-
versality of the antislavery treaty regime may have played some part in
this shift in attitudes is at least worthy of further investigation.

[ 168 ] The Slave Trade and the Origins of International Human Rights Law
 In terms of academic theories of international law and relations, the
slave trade abolition story presents something of a challenge to the
major theoretical schools. Some elements support each theory, but they
have difficulty explaining others. Realists and neorealists will tend to
focus on the material self-interest of Britain; the fact that weak countries
like Spain, Portugal, and Brazil joined the treaties while powerful coun-
tries like the United States and France did not for many years; Britain’s
use of its hegemonic military and economic power to achieve its goals;
and the coincidence of the suppression of the slave trade with the na-
tional self-interest of each country that abolished it. In the realists’ view,
international law is a mere epiphenomenal artifact of the underlying
power dynamics—though realists have a hard time explaining why na-
tions go to the trouble of creating international law if that is true.29 Those
skeptical of the adequacy of the explanatory power of realism will point
to the substantial evidence that Britain’s actions harmed, rather than
helped, its material position in the world. They will note that the cash
payments and other benefits given by Britain to Spain, Portugal, and
Brazil likely did not begin to compensate them for the total economic
costs of the abolition of the slave trade and then slavery itself. And they
will observe that the coercion Britain actually brought to bear—for
example, a few shots fired by ships in Brazilian territorial waters, with no
real commitment to war—was trivial compared to the change in policy
it elicited. Institutionalists will likely see the treaties and the court
system they created as rational, utility-maximizing mechanisms for co-
operation.30 In the absence of such mechanisms, even a state that wanted
to abolish the slave trade would be tempted to defect to gain material
advantage, but the regime created the opportunity for cooperation and
thus mutual long-term gains for all participants.31 Liberal international
relations theorists will be more interested in the ways domestic politics
and interest groups shaped British foreign policy. Constructivists, as I
have noted, will be interested in the way in which state interests were
constructed and reconstructed by their interactions.32 Postcolonialists

I N T E R N AT I O N A L H U M A N R I G H TS L AW [ 169 ]
might view the entire enterprise as a by-product of European desire to
establish economically viable colonies in Africa. And so forth.
There is some measure of truth in each of these theories, and yet each
is necessarily reductionist. It is fashionable among legal academics to
propound grand unified theories, and such theories have their value. Yet
there remains a case to be made for thick descriptions of complex events
and acknowledgment of the fact that no one theory can fully explain
something as dramatic as the global abolition of the slave trade and then
of slavery itself, let alone predict future changes in global society of a
similar scale.33 The history of the antislavery courts told purely through
the lens of realism, neorealism, institutionalism, rational choice, institu-
tional liberalism, constructivism, or any other “ism” would be an impov-
erished one, and so I do not claim that it entirely supports any one of
these theories, or any novel grand unified theory of my own invention.
But champions of existing theories do need to grapple with the com-
plexities, and contradictions, presented by this history.
Beyond the realm of theory, one can find in the history of the aboli-
tion of the slave trade echoes of many contemporary debates in foreign
policy, such as the efforts by some powerful countries to promote de-
mocracy and human rights in various societies around the world. Is it
true, as Lord Castlereagh suggested, that “[m]orals were never well
taught by the sword”?34 Is it only the sword that works? Or is it possible,
as Palmerston argued, that a combination of military force, interna-
tional law, and moral persuasion is most effective?
The very different circumstances of the world two centuries ago
cannot give us answers to these questions, but they provide food for
thought as we contemplate them today. Palmerston’s view suggests that
instead of viewing international courts solely as a threat to their sover-
eignty and independence, powerful countries should consider the extent
to which international courts can be a vital tool for adding legitimacy to
their actions and entrenching norms they support. Why is it, for example,
that the U.S. government has at times perceived the ICC primarily as a

[ 170 ] The Slave Trade and the Origins of International Human Rights Law
threat to its own independence rather than as a potentially valuable tool
for advancing human rights, democracy, and the rule of law—goals that
it has repeatedly characterized as the centerpiece of its current foreign
policy? At a moment when U.S. military and economic power is at a peak
(and a peak that seems unlikely to last forever as China’s 1.3 billion
people and India’s 1.1 billion people move toward full economic devel-
opment), the United States should consider projecting that power into
the future by creating and supporting stable international legal institu-
tions rather than fostering a world order based on power alone.
Finally, the history of the abolition of the slave trade suggests that the
time horizon of many international legal scholars and practitioners is sim-
ply too short. Today, some observers of the ICC suggest that it is doomed
to fail because the United States is not a participant. The same might have
been said about the antislavery courts during the forty-five years before
the United States finally joined the treaty regime. The analogy might seem
not quite apt because the United States was not the global superpower in
the 1800s that it is today. But though not yet a global hegemon, the United
States was significant as a large slave-holding society with an important
commercial and military maritime presence. Nor is the ICC the equiva-
lent of the antislavery courts without the British; the ICC does, after all,
enjoy the support of more than 100 countries, including the richest and
most powerful countries in the European Union. For many of the interna-
tional courts that were greeted with such fanfare in the post–cold war
optimism of the 1990s, and that are now dismissed in the neorealist pessi-
mism of the post–September 11 world, it may simply be too early to judge.
At the end of the day, the story of the abolition of the slave trade is a
hopeful one for international law, for human rights, and for humanity. In
1762, Rousseau famously wrote, “Man was born free; and everywhere
he is in chains.”35 A century later—after many statutes had been passed,
many treaties had been signed, many cases had been adjudicated, sev-
eral wars had been fought, and millions of minds had been changed on
the morality of slavery and the slave trade—those chains were broken.

I N T E R N AT I O N A L H U M A N R I G H TS L AW [ 171 ]
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ACKNOWLEDGMENTS

Portions of several chapters of this book are based on Jenny S. Martinez,

“Anti-Slavery Courts and the Dawn of International Human Rights
Law,” Yale Law Journal 117 (2008): 550, and portions of chapter 3 and
to a lesser extent chapter 6 are based on Jenny S. Martinez, “Interna-
tional Courts and the Constitution: Reexamining the History,” Univer-
sity of Pennsylvania Law Review 159 (2011): 1069. These portions are
used pursuant to the author’s publication agreements with those jour-
nals. I also thank the student editors at those journals for all their valu-
able comments.
I am grateful to so many people for their help in this project: my
research assistants, including Jim Alexander, Marilie Coetsee, Hugh
Gorman, Anne Hamilton, Kara Kapp, Sophia Lee, Sophia Lin Lakin,
Nicolas Martinez, Alexander Weber, and D. J. Wolff; the amazing staff
of the Stanford Law Library, including (but not limited to) Paul Lomio,
Sonia Moss, Rich Porter, Sergio Stone, and Erica Wayne. Amy Apple-
baum, who secretly runs Stanford Law School, provided me with food
and moral support at critical moments. My assistant Judy Dearing is a
genius with manuscripts, and I am very grateful to her, and to Pat Adan
and Ginny Turner for additional administrative support. I am also
grateful to my dean, Larry Kramer, and to the Stanford University Presi-
dential Fund for Innovation in International Studies, which provided
research funding. In addition, I owe a debt to the many colleagues at
Stanford and elsewhere who have commented on the project at various
points. First and foremost are my coinvestigators on the Stanford Presi-
dential fund grant for our project on courts, politics, and human rights:
Josh Cohen, Terry Karl, and Helen Stacy. Other colleagues here and
elsewhere who have provided invaluable advice and comments at vari-
ous points include Curtis Bradley, Allison Danner, William Dodge,
David Eltis, Lawrence Friedman, David Golove, Tom Grey, Laurence
Helfer, Daniel Hulsebosch, Oona Hathaway, Chimene Keitner, Mark
Kelman, Amalia Kessler, Harold Koh, David Luban, Martha Minow,
Eric Posner, Jack Rakove, Judith Resnik, Deborah Rhode, Richard
Steinberg, Priya Satia, Lisa Surwillo, Beth Van Schaack, Robert Weis-
berg, and John Witt. Thanks are also due to participants in the following
conferences and workshops: the Newberry Library conference, The
Law of Nations in the Early Modern Atlantic; the Omohundro Institute
Conference, Domestic and International Consequences of the First
Governmental Efforts to Abolish the Atlantic Slave Trade; the Stanford
Division of Literatures, Cultures and Languages conference, Treating
the Trata After 1808: The Historiography of Ignorance and the Spanish
Slave Trade; the UCLA International Law Workshop; the Yale Law and
Globalization Workshop; the Columbia Law and History Workshop;
the Stanford Global Justice Workshop; and the Stanford Law School
faculty workshop. The anonymous reviewers for Oxford University
Press also provided valuable comments. Thanks are also due to my edi-
tor, David McBride, to Alexandra Dauler at Oxford University Press,
and to the Strothman Agency.
But I am most grateful to my family. To my husband, David Graham,
and my children Alyse, Patrice, and Nancy for their infinite patience
with me (infinite!), and for making me coffee. I love you, my tribe. To
my dad, Tomas Martinez, for his lively suggestions on title and artwork.
To my mother-in-law, Sheila McCrea, and my Aunt Nancy for traveling
with all of my small children and me to England on an archives trip
(with a special medal of valor to Aunt Nancy for the flight home with
us). And most of all to my mom, Susanne Martinez, who went to

[ 174 ] A C K N O W L E D G M E N TS
England with me not once but twice and most memorably accompa-
nied me to the archives in Kew Garden, outside London, while I was
pregnant with Alyse. She sat beside me reading handwritten court
records, just in case I went into labor. Since she is a very accomplished
lawyer, I called her my most overqualified research assistant ever. But
mostly, she is my hero and inspiration. I love you, Mom.

A C K N O W L E D G M E N TS [ 175 ]
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NOTES

CHAPTER 1
1. John Baker and John Evans, Statement, Being the Substance of a
Conversation Held by the Undersigned, with Captain Kearney, Late of
the Royal African Corps, and Now on Half-Pay, Residing Chiefly at
Cape Shilling, on the Coast of Africa, 14 January 1820, in 2. Further
Papers Relating to the Suppression of the Slave Trade. Viz: A. Copies or
Extracts of All Communications Received by the Lord Commissioners of the
Admiralty, from the Naval Officers Stationed on the Coast of Africa, or in the
West Indies, Since 1st of January 1820; Relative to the State of the Slave
Trade; B. Copies or Extracts of All Instructions Issued by the Lords Commis-
sioners of the Admiralty to Naval Officers, Since the 1st of January 1819;
Relative to the Suppression of the Slave Trade, 13, House of Commons
Parliamentary Papers Online (2006), ProQuest (366) (hereafter cited
as Communications from and Instructions to Naval Officers, 1819–20),
http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_
dat=xri:hcpp-us&rft_dat=xri:hcpp:fulltext:1821-007497:13.
2. Hugh Thomas, The Slave Trade: The Story of the Atlantic Slave Trade,
1440–1870 (New York: Simon and Schuster, 1997), 582–83 (discuss-
ing the use of Baltimore clippers in the slave trade); W. E. F. Ward, The
Royal Navy and the Slavers (New York: Pantheon, 1969), 60–61. See
also David Eltis, Economic Growth and the Ending of the Transatlantic
Slave Trade (Oxford: Oxford University Press, 1987), 128–31 (discuss-
ing time trends in sizes of slave ships).
3. Ward, The Royal Navy, 101.
4. John Baker and John Evans, Statement, Being the Substance of a
Conversation Held by the Undersigned, with Captain Kearney, Late of
the Royal African Corps, and Now on Half-Pay, Residing Chiefly at
Cape Shilling, on the Coast of Africa, 14 January 1820, in Communica-
tions from and Instructions to Naval Officers, 1819–20, 13.
5. Bernard Edwards, Royal Navy Versus the Slave Traders: Enforcing Abolition
at Sea 1808–1898 (Barnsley, UK: Pen and Sword Maritime, 2007), 85.
 6. George William St. John Mildmay, Lieutenant of the H.M.S. Mildmay,
to Commodore Sir. R. Mends, Kt., 16 April 1822, Enclosure in Com-
modore Sir. R. Mends, Kt. to John Wilson Croker, Esq., 17 April 1822,
in Further Papers Relating to the Slave Trade: Viz. Copies, Or Extracts, of
Correspondence, from March 1822, Between the Board of Admiralty and
Naval Officers, Relating to the Slave Trade, 8, House of Commons
Parliamentary Papers Online (2006), ProQuest (544) (hereafter cited
as Communications from and Instructions to Naval Officers, Relative to
Suppression of Slave Trade: 1822–23), http://gateway.proquest.com/
openurl?url_ver=Z39.88-2004&res_dat=xri:hcpp-us&rft_dat=xri:hcp
p:fulltext:1823-008706:7.
7. In some reports, the ship’s name is spelled Ycanam or even Yeanam, and
the Vecua is spelled Becua. I use the spelling from the court records.
8. See M. Ferrer to Mr. Aston, 16 February 1841, First Enclosure in
Arthur Aston to Viscount Palmerston, 23 February 1841, in Class B.
Correspondence with Spain, Portugal, Brazil, the Netherlands, Sweden,
and the Argentine Confederation, Relative to the Slave Trade. From 1
January to 31 December 1841 Inclusive, pp. 10–12, House of Com-
mons Parliamentary Papers Online (2005), ProQuest (403), http://
gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_
dat=xri:hcpp-us&rft_dat=xri:hcpp:fulltext:1842-020663:32.
9. George William St. John Mildmay, Lieutenant of the H.M.S. Mildmay,
to Commodore Sir. R. Mends, Kt., 16 April 1822, Enclosure in Com-
modore Sir. R. Mends, Kt. to John Wilson Croker, Esq., 17 April 1822,
in Communications from and Instructions to Naval Officers, Relative to
Suppression of Slave Trade: 1822–23, 7, http://gateway.proquest.com/
openurl?url_ver=Z39.88-2004&res_dat=xri:hcpp-us&rft_dat=xri:hcp
p:fulltext:1823-008706:7.
10. Herbert A. St. John Mildmay, A Brief Memoir of the Mildmay Family
(London and New York: privately printed by John Lane the Bodley
Head, 1908), 215–16.
11. Cases of the Spanish Schooners Vecua and Icanam, First Enclosure in
E. Gregory and Edward Fitzgerald to the Marquess of Londonderry, 24
July 1822, in Class B. Correspondence with the British Commissioners, at
Sierra Leone, the Havannah, Rio de Janeiro, and Surinam, Relating to the
Slave Trade, 1822, 1823, 30, House of Commons Parliamentary Papers
Online (2005), ProQuest (008), http://gateway.proquest.com/
openurl?url_ver=Z39.88-2004&res_dat=xri:hcpp-us&rft_dat=xri:hcp
p:fulltext:1823-008717:38.
12. George William St. John Mildmay, Lieutenant of the H.M.S. Mildmay,
to Commodore Sir. R. Mends, Kt., 16 April 1822, Enclosure in

[ 178 ] NOTES TO PAGES 7–8

 Commodore Sir. R. Mends, Kt. to John Wilson Croker, Esq., 17 April
1822, in Communications from and Instructions to Naval Officers, Relative
to Suppression of Slave Trade: 1822–23, 8, http://gateway.proquest.
com/openurl?url_ver=Z39.88-2004&res_dat=xri:hcpp-us&rft_dat=x
ri:hcpp:fulltext:1823-008706:8.
13. Commodore Sir. R. Mends, Kt. to John Wilson Croker, Esq., 17 April
1822, in Communications from and Instructions to Naval Officers, Relative
to Suppression of Slave Trade: 1822–23, 7, http://gateway.proquest.
com/openurl?url_ver=Z39.88-2004&res_dat=xri:hcpp-us&rft_dat=xr
i:hcpp:fulltext:1823-008706:7.
14. Ibid.
15. E. Gregory and Edward Fitzgerald to the Marquess of Londonderry, 24
July 1822, in Class B. Correspondence with the British Commissioners, at
Sierra Leone, the Havannah, Rio de Janeiro, and Surinam, Relating to the
Slave Trade, 1822, 1823, 61, House of Commons Parliamentary Papers
Online (2005), ProQuest (008), http://gateway.proquest.com/
openurl?url_ver=Z39.88-2004&res_dat=xri:hcpp-us&rft_dat=xri:hcp
p:fulltext:1823-008717:69.
16. Ibid.
17. “The Slave Trade,” The Bury and Norwich Post, August 14, 1822.
18. As noted, there is somewhat conflicting evidence about what happened
to the French ships. One secondary source, relying on an article in the
Times on August 26, 1822, suggests that all were released upon reach-
ing England. Edwards, Royal Navy Versus the Slave Traders, 87–88. On
the other hand, a publication from 1824 suggests at least some of them
were condemned at Nantes. Committee Appointed by the Religious
Society of Friends, to Aid in Promoting the Total Abolition of the
Slave-Trade, Statements Illustrative of the Nature of the Slave Trade. To
Which Are Subjoined Some Particulars Respecting the Colony at Sierra
Leone (London: Harvey, Darton, & Co., 1824), 17–19. The Trans-
Atlantic Slave Trade Database, relying on several sources, suggests that
the Ursule was released by the vice-admiralty court in Sierra Leone,
while the Vigilante and the Petite Betsy were condemned by a French
tribunal in France. Given that the database relies on several primary
sources, this seems most likely to be accurate. See Voyages Database,
Trans-Atlantic Slave Trade Database, http://www.slavevoyages.org , s.v.
“Voyage 2733, Ursule, 1822,” “Voyage 2734, Vigilante, 1822,” “Voyage
2735, Petite Betsy, 1822,” all accessed February 21, 2011.
19. Abstract of the Case of the Portuguese Polacca, Esperanza Felix,
Joaquim Jose Brito Lima, Master, 24 July 1822, Enclosure in E. Gregory
and Edward Fitzgerald to the Marquess of Londonderry, 24 July 1822,

N OT E S TO PA G E S 8 – 1 0 [ 179 ]
 in Class B. Correspondence with the British Commissioners, at Sierra
Leone, the Havannah, Rio de Janeiro, and Surinam, Relating to the Slave
Trade, 1822, 1823, 62, House of Commons Parliamentary Papers
Online (2005), ProQuest (008), http://gateway.proquest.com/
openurl?url_ver=Z39.88-2004&res_dat=xri:hcpp-us&rft_dat=xri:hcp
p:fulltext:1823-008717:70.
20. Ibid.
21. Ibid.
22. “A Second Narrative of Samuel Ajayi Crowther’s Early Life,” Bulletin of
the Society for African Church History 2 (1965): 6 (transcription of letter
from Samuel Crowther to Captain Bird Allen, 3 September 1841).
23. Ibid.
24. Ibid., 7.
25. Ibid., 9.
26. Ibid., 13.
27. Ibid.
28. Ibid., 14.
29. See “Consecration of Three Bishops in Canterbury Cathedral,” The
Standard (London, England), June 30, 1864.
30. Jesse Page, Samuel Crowther: The Slave Boy Who Became Bishop of the
Niger, 4th ed. (New York: Fleming H. Revell, 1892), 118.
31. “The Late Admiral Sir Henry John Leeke, K.C.B., K.H.,” The Derby
Mercury (Derby, England), March 9, 1870.
32. “Local Topics, the Niger Mission,” The Derby Mercury (Derby, Eng-
land), April 23, 1873 (noting that Crowther said he was indebted to the
“gallant” Leeke “not only for freedom from bodily slavery but from the
slavery of sin and Satan”).

CHAPTER 2
1. See generally David Brion Davis, The Problem of Slavery in Western
Culture (Ithaca, NY: Cornell University Press, 1966).
2. Thomas Clarkson, The History of the Rise, Progress, and Accomplishment
of the Abolition of the African Slave Trade by the British Parliament
(London: Longman, Hurst, Reed, and Orme, 1808), 1:84 (quoting
David Hartley).
3. Substance of the Debates on a Resolution for Abolishing the Slave Trade
(London: Philips and Fardon, 1806), 99 (statement of Lord Grenville).
4. Thomas Jefferson, statement to Congress, 2 December 1806, in A
Compilation of the Messages and Papers of the Presidents, ed. James D.
Richardson, vol. 1 (New York: Bureau of National Literature, 1897),
396; see also W. E. Burghardt DuBois, The Suppression of the African

[ 180 ] NOTES TO PAGES 10–17

 Slave-Trade to the United States of America, 1638–1870 (New York:
Longmans, Green, 1896), 80 (quoting petitions for the abolition of the
slave trade to the United States that describe the trade as “an outra-
geous violation of one of the most essential rights of human nature”
and “degrading to the rights of man”); Executive Committee of the
American Antislavery Society, Slavery and the Internal Slave Trade in the
United States of North America (photo. repr., London: Thomas Ward,
1841), 162 (referring to “the cause of human rights”). This view of the
slave trade as a human rights issue was carried on through the later part
of the nineteenth century, as when Yale college president Theodore
Dwight Woolsey’s 1860 edition of Introduction to the Study of Interna-
tional Law explained that under the “correct views of human rights”
slavery was a status unprotected by the law of nations and that “new
views of men’s rights” had led to the prohibition of the slave trade in
international law. Theodore D. Woolsey, Introduction to the Study of
International Law (Boston: James Munroe, 1860), 316–17.
5. See Robert M. Cover, Justice Accused: Antislavery and the Judicial Process
(New Haven, CT: Yale University Press, 1975), 8–30. As Cover notes,
jurists in England and the United States during the eighteenth and
nineteenth centuries had sometimes conflicting and incompletely
theorized views of the relationship between natural law, statutory law,
the common law, and the law of nations. Slavery was a particularly
complicated case, because although originally seen by some philoso-
phers as a natural part of the order of the world (and perhaps even
mandated by God), over time other philosophers came to view it as
contrary to natural law. At the same time, slavery was sanctioned by the
Roman predecessor of the law of nations, the ius gentium. As early as
the third century, the Roman jurist Ulpian pointed out slavery as the
sole example of a conflict between the jus naturale and the jus gentium, a
contradiction that was later recognized by Justinian. Davis, The Problem
of Slavery in Western Culture, 83.
6. Richard McKeon, ed., The Basic Works of Aristotle (New York: Random
House, 1941), 1132.
7. Ibid., 1130–31.
8. Lloyd Weinreb, Natural Law and Justice (Cambridge, MA: Harvard
University Press, 1987), 45; Francis Zulueta, trans., The Institutes of
Gaius (Oxford: Clarendon Press, 1946), 1:3 (“the law that natural
reason establishes among all mankind . . . is called ius gentium [law of
nations]”).
9. Davis, The Problem of Slavery in Western Culture, 83; Weinreb, Natural
Law, 45–46. See, e.g., Florentinus, The Digest of Justinian, ed. Alan

N OT E S TO PA G E S 1 7 – 1 8 [ 181 ]
 Watson (Philadelphia: University of Pennsylvania Press, 1998), 1.5.4.1
(“Slavery is an institution of the jus gentium, whereby someone is
against nature made subject to the ownership of another”).
10. Hugo Grotius, The Rights of War and Peace, trans. A. C. Campbell
(Washington: M. Walter Dunne, 1901), 346.
11. Ibid.
12. Ibid., 346–47.
13. Peter Laslett, Locke’s Two Treatises of Government: A Critical Edition
with an Introduction and Apparatus Criticus, 2nd ed. (Cambridge:
Cambridge University Press, 1967), 159.
14. Davis, The Problem of Slavery in Western Culture, 119–20.
15. Baron de Montesquieu, The Spirit of Laws, trans. Thomas Nugent, ed. J.
V. Prichard (Littleton, CO: Fred B. Rothman, 1991), 1:253.
16. Ibid., 1:257.
17. Jean Jacques Rousseau, Rousseau’s Political Writings, trans. and ed. Julia
Bondanella, and ed. Alan Ritter (New York: W. W. Norton, 1988),
88–91.
18. Ibid., 89.
19. Ibid.
20. Ibid., 91.
21. Emerich de Vattel, The Law of Nations; or, Principles of the Law of Nature,
Applied to the Conduct and Affairs of Nations and Sovereigns, trans. and
ed. Joseph Chitty (Philadelphia: T. & J. W. Johnson, 1852), 356.
22. Ibid.
23. Ibid.
24. David Brion Davis, The Problem of Slavery in the Age of Revolution,
1770–1823 (Ithaca, NY: Cornell University Press, 1999), 485 (quoting
Blackstone).
25. Somerset v. Stewart, (1772) 98 Eng. Rep. 499 (K.B.). For a discussion of
similar cases in French courts, see Sue Peabody, “There Are No Slaves in
France”: The Political Culture of Race and Slavery in the Ancien Régime
(New York: Oxford University Press, 1996).
26. Adam Hochschild, Bury the Chains: Prophets and Rebels in the Fight to
Free an Empire’s Slaves (Boston: Houghton Mifflin, 2005), 48–51
(describing the role of abolitionists in bringing Somerset’s case).
27. Somerset, 98 Eng. Rep. at 502.
28. Ibid., 510. For a discussion of the natural law underpinnings of Somer-
set and other antislavery cases, see Cover, Justice Accused, 8–30.
29. Somerset, 98 Eng. Rep. at 509.
30. Hochschild, Bury the Chains, 233–34.
31. Ibid., 241–55.

[ 182 ] NOTES TO PAGES 18–22

32. See Act to Prevent the Importation of Slaves, 1806, 46 Geo. 3, c. 52
(Eng.).
33. Hochschild, Bury the Chains, 302–3; Seymour Drescher, “Whose
Abolition? Popular Pressure and the Ending of the British Slave Trade,”
Past and Present no. 143 (1994): 141–42.
34. Drescher, “Whose Abolition?” 142.
35. Ibid., 142–44.
36. Ibid., 145–48.
37. Act for the Abolition of the Slave Trade, 1807, 47 Geo. 3, c. 36 (Eng.)
(repealed 1824).
38. See David Eltis, “The Nineteenth-Century Transatlantic Slave Trade:
An Annual Time Series of Imports into the Americas Broken Down by
Region,” Hispanic American Historical Review 67, no. 1 (1987): 136,
table V.
39. Peabody, “There Are No Slaves in France,” 23–40, 88–93. Alarm about
the number of blacks in Paris, however, led Louis XVI to enact a
measure in 1777 prohibiting the entry of new blacks (free or slave) into
France, requiring the registration of those already present, and prohib-
iting the admiralty court from hearing any further freedom petitions.
The new law was not well enforced, and the admiralty court began
granting freedom petitions again as early as 1778. See ibid., 120–33.
40. Davis, The Problem of Slavery in the Age of Revolution, 29.
41. Ibid., 29–31.
42. Warren S. Howard, American Slavers and the Federal Law, 1837–1862
(Berkeley: University of California Press, 1963), 25–27.
43. Article I, Section 9 of the U.S. Constitution reflected a compromise
between northern and southern states and provided that “[t]he
Migration or Importation of such Persons as any of the States now
existing shall think proper to admit, shall not be prohibited by the
Congress prior to the Year one thousand eight hundred and eight.”
44. See Eltis, “Nineteenth-Century Transatlantic Slave Trade,” 136, table V.
45. DuBois, Suppression of the African Slave-Trade, 108–9.
46. Leslie Bethell, The Abolition of the Brazilian Slave Trade (Cambridge:
Cambridge University Press, 1970), 6 (noting that the Portuguese
foreign minister responded to British overtures about banning the slave
trade in 1807 by saying it was “utterly impracticable” for Portugal even
to discourage, let alone ban, the slave trade).
47. Tara Helfman, “Note, the Court of Vice Admiralty at Sierra Leone and
the Abolition of the West African Slave Trade,” Yale Law Journal 115
(2006): 1122.
48. The Amedie, (1810) 12 Eng. Rep. 92 (P.C.).

N OT E S TO PA G E S 2 2 – 2 5 [ 183 ]
 49. Ibid., 96.
50. Ibid.
51. Ibid.
52. Ibid., 96–97.
53. Ibid., 97.
54. Ibid., 92. Under prevailing practice in the nineteenth century, the
proceeds from a ship condemned as a prize were shared between the
government and the crew of the ship that made the capture. The precise
division of the proceeds was set by statute and was changed from time
to time.
55. For other cases, see, e.g., Donna Marianna, (1812) 165 Eng. Rep. 1244
(Adm. Ct.); Fortuna, (1811) 165 Eng. Rep. 1240 (Adm. Ct.); Africa,
(1810) 12 Eng. Rep. 156 (P.C.); and Anne, (1810) 12 Eng. Rep. 158
(P.C.). See also Helfman, “Court of Vice Admiralty,” 1122 (discussing
cases tried before the vice-admiralty court in Sierra Leone).
56. Christopher Lloyd, The Navy and the Slave Trade, 2nd ed. (London:
Frank Cass, 1968), 62–63 (describing Portuguese diplomatic protests
in 1813 related to the capture of Portuguese-flagged slaving vessels off
the coast of Africa).
57. Donald R. Hickey, The War of 1812: A Forgotten Conflict (Urbana:
University of Illinois Press, 1989), 11–13.
58. Data on known slave voyages in table 2.1 and other tables in this book
are derived from David Eltis et al., Trans-Atlantic Slave Trade Database,
http://www.slavevoyages.org , accessed February 1, 2011. The online
version of the database is a much-expanded version of the database that
was published in 1999. David Eltis et al., The Trans-Atlantic Slave Trade:
A Database on CD-ROM (Cambridge: Cambridge University Press,
1999), CD-ROM. Table 2.1 was created from the raw data by using the
year of departure variable (“YEARDEP”) for year and the variable
describing the outcome of the voyage (“FATE”) to count all voyages
adjudicated in vice-admiralty courts each year as well as the total
number of voyages of any outcome in that year. For a discussion of this
data, and its limits, see Jenny Martinez, “Antislavery Courts and the
Dawn of International Human Rights Law,” Yale Law Journal 117
(2007): 597 nn. 208–10.
59. Howard, American Slavers, 4–6.
60. David Eltis, Economic Growth and the Ending of the Transatlantic Slave
Trade (New York: Oxford University Press, 1987), 109. Le Louis,
(1817) 165 Eng. Rep. 1464 (Adm. Ct.).
61. Le Louis, (1817) 165 Eng. Rep. 1464 (Adm. Ct.), 1473.
62. Ibid., 1475.

[ 184 ] NOTES TO PAGES 25–27

63. Ibid., 1482. For an interesting similar turnabout in American case law,
compare Justice Story’s decision upholding an American ship’s capture
of a French slave vessel on Somerset-type reasoning in United States v. La
Jeune Eugenie, 26 F. Cas. 832, 846–48 (C.C.D. Mass. 1822) (No. 15,551)
with Justice Marshall’s invalidation of a similar seizure with Le Louis–
type reasoning in The Antelope, 23 U.S. (10 Wheat.) 66, 122 (1825).
64. Drescher, “Whose Abolition?” 159; also see Additional Article to the
Definitive Treaty of Peace Between Great Britain and France, Gr.
Brit.–Fr., 30 May 1814, in British and Foreign State Papers, vol. 3
(London: James Ridgway and Sons, 1838), 890–91 (hereafter cited as
B.S.P., vol. 3) (acknowledging that slave trade is “repugnant to the
principles of natural justice and the enlightened age in which we live”
and pledging to cooperate with Britain at the upcoming Congress to
induce agreement for abolition of the trade, as well as committing to
abolish the trade in the course of five years, but preserving the right of
France to engage in the trade in the interim).
65. Drescher, “Whose Abolition?” 159.
66. See ibid., 159–60; also see “House of Commons,” Times (London),
June 7, 1814 (describing the reaction to Lord Castlereagh’s presenta-
tion of the peace treaty).
67. See Hochschild, Bury the Chains, 316–17; Drescher, “Whose Aboli-
tion?” 160; Bernard Nelson, “The Slave Trade as a Factor in British
Foreign Policy, 1815–1862,” Journal of Negro History 27, no. 2 (1942):
193–94 (noting that more than 600 petitions from various towns and
associations were submitted to Parliament in July 1814).
68. See Drescher, “Whose Abolition?” 161.
69. See ibid., 164 (quoting Arthur Wellesley, Duke of Wellington, to
Viscount Castlereagh, 17 June 1814; and Arthur Wellesley, Duke of
Wellington, to Viscount Castlereagh, 6 July 1814).
70. Address of the House of Commons to the Prince Regent of Great
Britain, 3 May 1814, Enclosed in Viscount Castlereagh to the Duke of
Wellington, 6 August 1814, in B.S.P., vol. 3, 893–94 (urging that “His
Majesty’s Government would employ every proper means to obtain a
Convention of the Powers of Europe for the immediate and universal
abolition of the African Slave Trade” at the Congress, which “afford[s] a
most auspicious opportunity for interposing the good offices of Great
Britain to accomplish the above noble purpose”); Nelson, “Slave Trade
as a Factor,” 194.
71. Bethell, Abolition of the Brazilian Slave Trade, 12.
72. Castlereagh was apparently quite susceptible to public opinion. He
ended up committing suicide in 1822, partly in reaction to his

N OT E S TO PA G E S 2 7 – 2 9 [ 185 ]
 perception of his unpopularity. See generally J. A. R. Marriott, Castlere-
agh: The Political Life of Robert, Second Marquess of Londonderry
(London: Methuen, 1936).
73. Viscount Castlereagh to the Duke of Wellington, 6 August 1814, in
B.S.P., vol. 3, 891, 893.
74. The Duke of Wellington to Viscount Castlereagh, 25 August 1814, in
B.S.P., vol. 3, 901, 902.
75. Viscount Castlereagh to the Duke of Wellington, 4 October 1814, in
B.S.P., vol. 3, 907.
76. The Duke of Wellington to Viscount Castlereagh, 5 November 1814, in
B.S.P., vol. 3, 913.
77. Convention Between Great Britain and the Netherlands Relative to the
Dutch Colonies; Trade with the East and West Indies, art. VIII, Gr.
Brit.–Neth., 13 August 1814, in British and Foreign State Papers, vol. 2
(London: James Ridgway and Sons, 1839), 370, 374–75 (hereafter
cited as B.S.P., vol. 2) (promising to forbid subjects from “taking any
share whatsoever in such inhuman Traffic”). Sweden, too, was per-
suaded to enter into a treaty banning the trade, but Sweden was not a
major maritime power.
78. Act of March 2, 1807, ch. 22, 2 Stat. 426.
79. Treaty of Peace and Amity, Between His Britannic Majesty and the
United States of America, art. X, Gr. Brit.–U.S., 24 December 1814, in
B.S.P., vol. 2, 357, 364.
80. Sir Henry Wellesley to Viscount Castlereagh, 17 June 1814, in B.S.P.,
vol. 3, 920.
81. Sir Henry Wellesley to Viscount Castlereagh, 6 July 1814, in B.S.P., vol.
3, 920.
82. Sir Henry Wellesley to Viscount Castlereagh, 25 August 1814, in B.S.P.,
vol. 3, 926.
83. Sir Henry Wellesley to Viscount Castlereagh, 20 September 1814, in
B.S.P., vol. 3, 931.
84. Sir Henry Wellesley to Viscount Castlereagh, 23 October 1814, in
B.S.P., vol. 3, 932.
85. Earl Bathurst to Sir Henry Wellesley, 11 November 1814, in B.S.P., vol.
3, 934.
86. See Bethell, Abolition of the Brazilian Slave Trade, 7–9.
87. Convention Between Great Britain and Portugal, Relative to the
Indemnification of Portuguese Subjects for Certain Detained Slave-
Trade Vessels, Gr. Brit.–Port., 21 January 1815, in B.S.P., vol. 2, 345–48.
88. Treaty Between Great Britain and Portugal, for the Restriction of the
Portuguese Slave Trade; and for the Annulment of the Convention of

[ 186 ] NOTES TO PAGES 29–31

 Loan of 1809, and Treaty of Alliance of 1810, Gr. Brit.–Port., 22
January 1815, in B.S.P., vol. 2, 348–55.
89. See generally Jerome Reich, “The Slave Trade at the Congress of
Vienna—a Study in English Public Opinion,” Journal of Negro History
53, no. 2 (1968): 129.
90. See Charles K. Webster, ed., British Diplomacy, 1813–1815: Select
Documents Dealing with the Reconstruction of Europe (London: G. Bell
and Sons, 1921); Viscount Castlereagh, Correspondence, Dispatches, and
Other Papers, vol. 10, ed. Charles W. Vane (London: William Shoberl,
1852), 213–61; Hilde Spiel, ed., The Congress of Vienna: An Eyewitness
Account, trans. Richard H. Weber (Philadelphia: Chilton, 1968).
91. See Tim Chapman, The Congress of Vienna: Origins, Processes and
Results (London: Routledge, 1998), 60–61.
92. Ibid., 61.
93. Viscount Castlereagh to the Earl of Liverpool, 28 September 1815, in
Webster, British Diplomacy, 383 (internal quotation marks omitted).
94. Chapman, Congress of Vienna, 60–62.
95. Viscount Castlereagh to the Earl of Liverpool, 21 November 1814, in
Webster, British Diplomacy, 233–35; Reich, “Slave Trade,” 135–36.
96. Reich, “Slave Trade,” 139–40 (quoting delegates to the Declaration of
the Powers on the Abolition of the Slave Trade, 8 February 1815, in
Parliamentary Debates, ed. T. C. Hansard, vol. 32 (1816), 200–201).
97. See Martha Putney, “The Slave Trade in French Diplomacy from 1814
to 1815,” Journal of Negro History 60, no. 3 (1975): 424–25.
98. Ibid., 426.
99. Ibid., 427. As noted in the British press, the treaty was implemented by
way of a French ordinance prohibiting the slave trade and providing for
confiscation of any vessels importing slaves into the French West
Indian possessions. “French Papers,” Times (London), February 7,
1817.
100. Answers from Sierra Leone to the Queries of Viscount Castlereagh,
April 1817, in British and Foreign State Papers, vol. 6 (London: James
Ridgway, 1835), 38, 45 (hereafter cited as B.S.P., vol. 6).
101. Ibid. (emphasis added).
102. Treaty of Amity, Commerce and Navigation, U.S.-U.K., November 19,
1794, 8 Stat. 116.
103. See Convention Relative to the Claims of the Subjects of the Allied
Powers upon France, art. V, 20 November 1815, in B.S.P., vol. 3, 315,
321–26; also see Viscount Castlereagh to the Duke de Richelieu, 27
October 1818, in B.S.P., vol. 6, 59 (noting that the provisions for judge
and arbitrator were like those in a previous convention between Great

N OT E S TO PA G E S 3 1 – 3 4 [ 187 ]
 Britain and France for adjudicating private claims); British Govern-
ment, memorandum, enclosed in Viscount Castlereagh to Earl
Bathurst, 28 November 1818, in B.S.P., vol. 6, 65, 77, 79 (similar).
104. Additional Convention Between Great Britain and Portugal for the
Prevention of the Slave Trade, Gr. Brit.–Port., 28 July 1817, 67 Consol.
T.S. 398 (1817) (hereafter cited as Anglo-Portuguese Treaty of 1817);
Treaty Between Great Britain and Spain for the Abolition of the Slave
Trade, Gr. Brit.–Spain, 23 September 1817, 68 Consol. T.S. 45 (1817–
18) (hereafter cited as Anglo-Spanish Treaty of 1817); Treaty Between
His Britannic Majesty and His Majesty the King of the Netherlands, for
Preventing Their Subjects from Engaging in Any Traffic in Slaves, Gr.
Brit.–Neth., 4 May 1818, in British and Foreign State Papers, vol. 5
(London: James Ridgway and Sons, 1837), 125.
105. This would be the equivalent of roughly £20 million today.
106. Anglo-Spanish Treaty of 1817, arts. III–IV. Not everyone in London
was thrilled with this concession. “Why,” asked one newspaper writer,
“should England pay Spain for performing an act of humanity and
justice?” Times (London), October 13, 1817.
107. British diplomats would not let their Spanish and Portuguese counter-
parts soon forget about the cash payments; for years to come, when Spain
and Portugal were less than enthusiastic about enforcing the treaties, the
British would remind them that they had been paid in advance for their
cooperation. See, e.g., Draft of a Note to Be Presented by Lord Howard de
Walden to the Portuguese Government, Enclosed in Viscount Palmer-
ston to Lord Howard de Walden, 20 April 1839, in Correspondence with
Foreign Powers Relating to the Slave Trade, class B, 71, 76–78, in British
Parliamentary Papers, vol. 17 (1839; photo. repr., Shannon: Irish Univer-
sity Press, 1968).
108. Anglo-Spanish Treaty of 1817, art. I.
109. Ibid., art. II.
110. Anglo-Portuguese Treaty of 1817, art. II.
111. Anglo-Spanish Treaty of 1817, art. XII. The presence of Spanish and
Portuguese judges under instructions from their governments did not
render the courts cheap talk. At most, this would have meant acquittal
in half the cases, given the system for breaking tie votes, which is
discussed in greater detail in chapter 4.
112. Regulation for the Mixed Commissions, Which Are to Reside on the
Coast of Africa, and in a Colonial Possession of His Catholic Majesty,
art. I (hereafter cited as Regulation for the Mixed Commissions),
Appended to Anglo-Spanish Treaty of 1817.
113. Ibid., preamble.

[ 188 ] NOTES TO PAGES 34–36

114. Viscount Palmerston to the Baron de Moncorvo, 30 April 1836, in
Correspondence with Foreign Powers, Relating to the Slave Trade, class B,
83, in British Parliamentary Papers, vol. 14 (1839; photo. repr., Shan-
non: Irish University Press, 1968).

CHAPTER 3
1. Gordon S. Wood, Empire of Liberty: A History of the Early Republic,
1789–1815 (Oxford: Oxford University Press, 2009), 517–19.
2. Ibid., 522.
3. Keith L. Dougherty and Jac C. Heckelman, “Voting on Slavery at the
Constitutional Convention,” Public Choice 136 (2008): 293, 295; John
P. Kaminski, ed., A Necessary Evil?: Slavery and the Debate over the
Constitution (Madison, WI: Madison House, 1995), 1.
4. See Susan L. Boyd, “A Look into the Constitutional Understanding of
Slavery,” Res Publica 6, no. 1 (1995), http://www.ashbrook.org/
publicat/respub/v6n1/boyd.html.
5. U.S. Const. art. IV, § 2.
6. U.S. Const. art. I, § 9.
7. Boyd, “A Look into the Constitutional Understanding of Slavery.”
8. Const. of the Confederate States of America, art. I, § 9, cl. 1 (1861).
9. Merrill Jensen, et al., eds., “The Pennsylvania Convention: Monday, 3
December 1787,” in The Documentary History of the Ratification of the
Constitution: Ratification by the States: Pennsylvania, vol. 2 (Madison:
Wisconsin Historical Society, 1976), 463 (statement of James Wilson).
10. Doughtery and Heckelman, “Voting on Slavery,” 294–95.
11. W. E. Burghardt DuBois, The Suppression of the African Slave-Trade to
the United States of America, 1638–1870 (New York: Longmans, Green,
1896), 80.
12. Act of March 22, 1794, ch. 11, 1 Stat. 347, 349; Charles Rappleye, Sons
of Providence: The Brown Brothers, the Slave Trade and the American
Revolution (New York: Simon and Schuster, 2006), 299.
13. Rappleye, Sons of Providence, 305.
14. Actually, many slave ships had strangely optimistic names like Liberty,
Fraternité, and Egalité. Voyages Database, Trans-Atlantic Slave Trade
Database, http://www.slavevoyages.org , s.v. “Liberty, 1700–1824,” s.v.
“Fraternite, 1700–1824,” s.v. “Egalite, 1700–1824,” all accessed Febru-
ary 21, 2011.
15. Rappleye, Sons of Providence, 310.
16. Ibid., 311–12.
17. United States v. Schooner Sally, 6 U.S. (2 Cranch) 406 (1805). The
1794 act prohibited Americans from engaging in the trade to foreign

N OT E S TO PA G E S 3 7 – 4 2 [ 189 ]
 countries; the importation of slaves could not constitutionally be
banned until 1808.
18. Act of May 10, 1800, ch. 51, 2 Stat. 70, 70–71.
19. DuBois, The Suppression of the African Slave-Trade, 82 (internal quota-
tion marks omitted).
20. Ibid., 84.
21. Brig Caroline, William Broadfoot v. United States, 11 U.S. (7 Cranch)
496, 498–99 (1813); The Marianna Flora, 24 U.S. (11 Wheat.) 1, 38
(1826) (upholding the introduction of a new count while the case
was on appeal because such amendments were allowed in admiralty
actions); The Mary Ann, 21 U.S. (8 Wheat.) 380, 390 (1823) (re-
versing “the sentence of the District Court of Louisiana” in a slave
trade case “for these defects in the libel; but as there is much reason to
believe, that the offence for which the forfeiture is claimed has been
committed, the cause is remanded to the District Court of Louisiana,
with directions to permit the libel to be amended”); The Josefa
Segunda, 18 U.S. (5 Wheat.) 338, 343 (1820) (describing the district
court’s condemnation of the ship under the slave trade acts); The
Josefa Segunda, 23 U.S. (10 Wheat.) 312, 322 (1825) (noting, in
subsequent proceeding of the case under the 1807 slave trade act, that
“the District Court has jurisdiction over seizures made under the
latter act. The principal proceedings are certainly to be against the
vessel, and the goods and effects found on board”).
22. United States v. Vickery, 28 F. Cas. 374, 374 (C.C.D. Md. 1803) (No. 16,
619).
23. Thomas Jefferson, Sixth Annual Presidential Message to Congress, 2
December 1806, in Presidential Messages and State Papers, vol. 2, ed.
Julius W. Muller (New York: Review of Reviews, 1917), 390.
24. See figure 3.1, at p. 40.
25. William Wilberforce to James Monroe, 6 June 1804, 21 August 1806,
quoted in Betty Fladeland, Men and Brothers (Urbana: University of
Illinois Press, 1972), 108; Robert Isaac Wilberforce and Samuel
Wilberforce, The Life of William Wilberforce, vol. 3 (London: John
Murray, 1838), 374.
26. Treaty of Peace and Amity Between His Britannic Majesty and the
United States of America, art. X, Gr. Brit.–U.S., December 24, 1814, in
British and Foreign State Papers, vol. 2 (London: James Ridgway and
Sons, 1839), 357, 364.
27. Fladeland, Men and Brothers, 113.
28. Memorandum of the British Government, Enclosure 5 in Viscount
Castlereagh to Earl Bathurst, 23 November 1818, in British and Foreign

[ 190 ] NOTES TO PAGES 42–44

 State Papers, vol. 6, 1818–1819 (London: James Ridgway, 1835)
(hereafter cited as B.S.P., vol. 6), 79.
29. Ibid., 79 (spelling as in original).
30. Ibid., 77, 79. See also “Protocole de la Conference entre les Plénipoten-
tiaires des 5 Cours,” 4 November 1818, Enclosure in Viscount Castlere-
agh to Earl Bathurst, 12 November 1818, in B.S.P., vol. 6, 64.
31. Marcus Niehbur Tod, International Arbitration Amongst the Greeks
(Oxford: Clarendon, 1913), 170–75; Jonathan I. Charney, “Is Interna-
tional Law Threatened by Multiple International Tribunals?” in Recueil
Des Cours, vol. 271 (The Hague: Martinus Nijhoff, 1999), 118 n. 8;
John Bassett Moore, ed., International Adjudications: Ancient and
Modern: History and Documents Together with Mediatorial Reports,
Advisory Opinions, and the Decisions of Domestic Commissions, on
International Claims, vol. 1 (New York: Oxford University Press, 1929),
xi–xii.
32. Peter Malanczuk, Akehurst’s Modern Introduction to International Law,
7th ed. (London: Routledge, 1997), 20; Charney, “Is International Law
Threatened,” 118.
33. Interestingly enough, constitutional objections were raised to the Jay
Treaty at the time of its ratification on the grounds that the foreign
commissions would not have been appointed in accordance with the
Constitution and that it was an impermissible delegation of Article III
authority to a non–Article III tribunal. These objections were not
accepted, and the treaty was adopted. See generally David Golove, “The
New Confederalism: Treaty Delegations of Legislative, Executive, and
Judicial Power,” Stanford Law Review 55 (2003), 1697, 1745–46.
34. Treaty of Amity, Commerce and Navigation, U.S.–Gr. Brit., art. VII,
November 19, 1794, 8 Stat. 116.
35. Charles H. Brower, “The Functions and Limits of Arbitration and
Judicial Settlement under Private and Public International Law,” Duke
Journal of Comparative and International Law 18 (2008), 259, 268–69.
36. John Quincy Adams, 6 June 1817, in Memoirs of John Quincy Adams
Comprising Portions of His Diary from 1795 to 1848, ed. Charles Francis
Adams, vol. 3 (1874–77; repr., Freeport, ME: Books for Libraries
Press, 1969), 557.
37. John Quincy Adams, 30 October 1818, in Memoirs of John Quincy
Adams, vol. 4 (hereafter cited as Adams Memoirs, vol. 4), 148–49.
38. Ibid., 149.
39. Ibid., 148.
40. Ibid.
41. Ibid., 151–52.

N OT E S TO PA G E S 4 4 – 4 7 [ 191 ]
 42. Ibid.
43. Ibid.
44. Ibid.
45. For a detailed discussion of the constitutional law issues, compare
Jenny S. Martinez, “International Courts and the U.S. Constitution:
Reexamining the History,” University of Pennsylvania Law Review 159,
no. 3 (2011), 1069; with Eugene Kontorovich, “The Constitutionality
of International Courts: The Forgotten Precedent of Slave-Trade
Tribunals,” University of Pennsylvania Law Review 158, no. 1 (2009),
39, 75–81, 87–88.
46. Daniel Walker Howe, What Hath God Wrought: The Transformation of
America 1815–1848 (Oxford: Oxford University Press, 2007), 91.
47. Ibid., 91, 93.
48. Stratford Canning to George Canning, 6 June 1823, NA, FO 5, no. 176,
cited in John T. Noonan Jr., The Antelope: The Ordeal of the Recaptured
Africans in the Administrations of James Monroe and John Quincy Adams
(Berkeley: University of California Press, 1977), 86.
49. Howe, What Hath God Wrought, 112.
50. See generally Henry M. Dowling, “William Wirt,” Green Bag 10, no. 11
(1898), 453.
51. John Quincy Adams, 28 April 1818, in Adams Memoirs, vol. 4, 82.
52. Noonan, The Antelope, 85.
53. An Act of Mar. 3, 1819, ch. 101, 3 Stat. 532.
54. An Act of Mar. 3, 1819, ch. 77, 3 Stat. 510.
55. United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820).
56. Ibid., 160–61.
57. An Act of May 15, 1820, ch. 113, § 4, 3 Stat. 600.
58. H.R. Rep. No. 17–92, at 5–6 (1821), cited in DuBois, Suppression of the
African Slave Trade, 126.
59. Bernard Edwards, Royal Navy Versus the Slave Traders: Enforcing
Abolition at Sea 1808–1898 (Barnsley, Yorkshire: Pen and Sword
Maritime, 2007), 78–79.
60. John Quincy Adams, 3 March 1820, in Memoirs of John Quincy Adams,
vol. 5 (hereafter cited as Adams Memoirs, vol. 5), 11–12.
61. 37 Annals of Cong. 2216, 2235 (1820).
62. John Quincy Adams, 14 March 1819, in Adams Memoirs,
vol. 4, 335.
63. Ibid., 335–36.
64. Ibid.
65. Ibid.
66. Fladeland, Men and Brothers, 125.

[ 192 ] NOTES TO PAGES 47–52

67. John Quincy Adams, 2 October 1820, in Adams Memoirs, vol. 5, 182.
68. Ibid.
69. Ibid.
70. Ibid., 182–83.
71. Ibid., 183.
72. Ibid.
73. John Quincy Adams, 20 October 1820, in Adams Memoirs, vol. 5,
189–91.
74. Ibid. at 190.
75. John Quincy Adams, 26 October 1820, in Adams Memoirs, vol. 5,
191–92.
76. Ibid. at 193.
77. Ibid., 192.
78. John Quincy Adams, 29 June 1822, in Memoirs of John Quincy Adams,
vol. 6 (hereafter cited as Adams Memoirs, vol. 6), 37.
79. John Quincy Adams, 12 June 1823, in Adams Memoirs, vol. 6, 147.
80. James Monroe to Daniel Brent, 17 September 1821, quoted in The
Political Writings of James Monroe, ed. James P. Lucier (Washington,
DC: Regnery, 2001), 323.
81. United States v. La Jeune Eugenie, 26 F. Cas. 832 (C.C.D. Ma. 1822)
(No. 15,551).
82. Ibid.
83. Ibid.
84. Ibid.
85. Noonan, The Antelope, 70.
86. Ibid.
87. Ibid., 71.
88. La Jeune Eugenie, 26 F. Cas. at 832, 841.
89. Ibid., 845.
90. Noonan, The Antelope, 73.
91. La Jeune Eugenie, 26 F. Cas. at 846.
92. Ibid., 847.
93. Ibid., 849–50.
94. The Antelope, 23 U.S. (Wheat.) 66 (1825).
95. Ibid., 68.
96. James Monroe to John Quincy Adams, 3 August 1820, quoted in
Noonan, The Antelope, 37.
97. Ibid.
98. Ibid., 52–53.
99. Ibid., 41 (“a suit in admiralty was a request that the federal judge,
William Davies, decide a claim for compensation arising at sea”).

N OT E S TO PA G E S 5 2 – 5 9 [ 193 ]
100. Ibid., 59. A small group of the slaves, who had been taken by the
Antelope from an American ship illegally engaged in the slave trade,
were assigned to the government of the United States. Ibid.
101. Ibid., 62 (internal quotation marks omitted).
102. Ibid., 62–63.
103. Secretary George Canning to the Duke of Wellington, 1 October 1822,
in British and Foreign State Papers, vol. 20 (London: James Ridgway and
Sons, 1850), 94–110; DuBois, The Suppression of the African Slave-
Trade, 138.
104. 40 Annals of Cong. 928 (1823). The resolution passed 131–9. 40
Annals of Cong. 1155 (1823).
105. 40 Annals of Cong. 1147 (1823).
106. Howe, What Hath God Wrought, 113–15; James Monroe, Seventh
Annual Message, 2 December 1823, in Presidential Messages and State
Papers, vol. 2, ed. Julius W. Muller (New York: Review of Reviews,
1917), 712, 721–22.
107. John Quincy Adams to Viscount Stratford Canning, 31 March 1823,
First Enclosure in Viscount Stratford Canning to Secretary George
Canning, 31 March 1823, in British and Foreign State Papers, vol. 10
(London: James Ridgeway and Sons, 1850), 262.
108. John Quincy Adams to Viscount Stratford Canning, 24 June 1823, in
Writings of John Quincy Adams, vol. 7, ed. Worthington Chauncey Ford
(New York: Macmillan, 1917) (hereafter cited as Adams Writings, vol.
7), 501–2.
109. Ibid.
110. 42 Annals of Cong. 3001–02 (1823).
111. John Quincy Adams, 23 December 1820, in Adams Memoirs, vol. 5,
217.
112. John Quincy Adams to Viscount Stratford Canning, 24 June 1823, in
Adams Writings, vol. 7, 502.
113. James Monroe, Message from the President of the United States, 21
May 1824, 1 Reg. Deb. 20 (1825).
114. Ibid.
115. See Letter from John Quincy Adams to Richard Rush (May 29, 1824), in
American State Papers: Foreign Relations, vol. 5, ed. Asbury Dickins and
James C. Allen (Washington, DC: Gales and Seaton, 1858), 362–63.
116. Extracts of Letter from Mr. Rush to Mr. Adams, 9 August 1824,
Document Accompanying the Message of the President of the United
States to Both Houses of Congress, 7 December 1824, 1 Reg. Deb. app.
24 (1824).
117. The Antelope, 23 U.S. (10 Wheat.) 66, 114 (1825).
118. Ibid., 115.

[ 194 ] NOTES TO PAGES 59–63

119. Ibid., 118.
120. Ibid.
121. Ibid., 118–19.
122. Ibid., 120.
123. Ibid., 121.
124. Ibid.
125. Ibid., 122.
126. Ibid.
127. Ibid., 122–23.
128. James Kent, Commentaries on American Law, vol. 1 (New York: O.
Halsted, 1826), 180.
129. Ibid., 185.
130. Ibid., 174.
131. Ibid., 182.
132. Ibid., 186.

CHAPTER 4
1. Commodore Sir G. R. Collier to J. W. Croker, Esq., 13 January 1820, in
2. Further Papers Relating to the Suppression of the Slave Trade. Viz: A.
Copies or Extracts of All Communications Received by the Lords Commis-
sioners of the Admiralty from the Naval Officers Stationed on the Coast of
Africa, or in the West Indies, Since the 1st of January 1820; Relative to the
State of the Slave Trade. B. Copies or Extracts of All Instructions Issued by
the Lords Commissioners of the Admiralty to Naval Officers, Since the 1st of
January 1819; Relative to the Suppression of the Slave Trade, p. 5, House of
Commons Parliamentary Papers Online (2006), ProQuest (366)
(hereafter cited as Communications from and Instructions to Naval Officers,
1819–20), http://gateway.proquest.com/openurl?url_ver=Z39.88-
2004&res_dat=xri:hcpp-us&rft_dat=xri:hcpp:fulltext:1821-007497:5.
2. Ibid., p. 6, http://gateway.proquest.com/openurl?url_ver=Z39.88-
2004&res_dat=xri:hcpp-us&rft_dat=xri:hcpp:fulltext:1821-007497:6.
3. Letter from Lieutenant R. Hagan to the Commissary Judges and the
Commissioners of the Arbitration, 10 November 1819, in Communica-
tions from and Instructions to Naval Officers, 1819–20, p. 7, http://
gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_
dat=xri:hcpp-us&rft_dat=xri:hcpp:fulltext:1821-007497:7.
4. Ibid.; also see Lieutenant R. Hagan to the Commissary Judges and the
Commissioners of the Arbitration, 22 November 1819, in Communications
from and Instructions to Naval Officers, 1819–20, pp. 8–9, http://gateway.
proquest.com/openurl?url_ver=Z39.88-2004&res_dat=xri:hcpp-us&
rft_dat=xri:hcpp:fulltext:1821-007497:8; Commodore Sir G. R. Collier
to J. W. Croker, Esq., 14 February 1820, in Communications from and

N OT E S TO PA G E S 6 3 – 6 8 [ 195 ]
 Instructions to Naval Officers, 1819–20, p. 16, http://gateway.proquest.
com/openurl?url_ver=Z39.88-2004&res_dat=xri:hcpp-us&rft_dat=xri:h
cpp:fulltext:1821-007497:16.
5. First Enclosure in Commodore Sir Geo. R. Collier to J. W. Croker, Esq.,
21 February 1820, in Communications from and Instructions to Naval
Officers, 1819–20, p. 24, http://gateway.proquest.com/openurl?url_
ver=Z39.88-2004&res_dat=xri:hcpp-us&rft_dat=xri:hcpp:fullt
ext:1821-007497:24.
6. See Thomas Gregory and Edward Fitzgerald, His Majesty’s Commis-
sioners, to Viscount Castlereagh, 27 November 1819, in (1821) Papers
Relative to the Slave Trade. Class A. Correspondence with His Majesty’s
Commissioners at Sierra Leone. Class B. Correspondence with Foreign
Courts Relative to the Execution of Treaties Contracted by Them with Great
Britain for the Prevention of Illicit Traffic in Slaves, and Correspondence
with His Majesty’s Commissioners in the Colonies of Those Powers. Class C.
Correspondence with France Relative to the Slave Trade. Class D. Correspon-
dence with the United States of America Relative to the Slave Trade, p. 68,
House of Commons Parliamentary Papers Online (2006), ProQuest
(003) (hereafter cited as Correspondence Relative to the Slave Trade,
1821), http://gateway.proquest.com/openurl?url_ver=Z39.88-
2004&res_dat=xri:hcpp-us&rft_dat=xri:hcpp:fullt
ext:1821-007486:76.
7. Commodore Sir G. R. Collier to J. W. Croker, Esq., 13 January 1820, in
Communications from and Instructions to Naval Officers, 1819–20, p. 6,
http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_
dat=xri:hcpp-us&rft_dat=xri:hcpp:fulltext:1821-007497:6.
8. See Thomas Gregory and Edward Fitzgerald, His Majesty’s Commis-
sioners, to Viscount Castlereagh, 27 November 1819, in Correspondence
Relative to the Slave Trade, 1821, p. 68, http://gateway.proquest.com/
openurl?url_ver=Z39.88-2004&res_dat=xri:hcpp-us&rft_dat=xri:hcp
p:fulltext:1821-007486:76.
9. In terms of structure, the anti–slave trade treaty regime cannot be neatly
characterized as bilateral or multilateral. Formally, the courts were
bilateral institutions. But they functioned as part of a de facto multilateral
treaty network, organized as a hub-and-spoke system with Britain at the
center. Some nations had more effective bilateral treaties with Britain than
others, but many were simultaneously party to multilateral agreements
against the slave trade such as the agreement at the Congress of Vienna.
10. Regulation for the Mixed Commissions, Which Are to Reside on the
Coast of Africa, and in a Colonial Possession of His Catholic Majesty
art. II (hereafter cited as Regulation for the Mixed Commissions),

[ 196 ] NOTES TO PAGES 68–69

 Appended to Treaty Between Great Britain and Spain for the Abolition
of the Slave Trade, Gr. Brit.–Spain, 23 September 1817, 68 Consol. T.S.
45 (1817–18) (hereafter cited as Anglo-Spanish Treaty of 1817).
11. Ibid., art. III.
12. See, e.g., Oct. Temple and H. W. Macauley, Commissioners at Sierra
Leone, to Viscount Palmerston, 30 June 1834, in Correspondence with
the British Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and
Surinam, Relating to the Slave Trade, class A, 63, in British Parliamentary
Papers, vol. 14 (1835–36; photo. repr., Shannon: Irish University Press,
1968) (hereafter cited as B.P.P., vol. 14) (reporting the death of a
Brazilian judge); H. W. Macaulay, Commissioner at Sierra Leone, to
Viscount Palmerston, 14 August 1834, in ibid., 8 (“informing your
Lordship of another loss which the Courts of Mixed Commission and
his Majesty’s service have sustained” in the death of the lieutenant-
governor of the colony and commissary judge ad interim); J. de Aranjo
Ribeiro to the Duke of Wellington, 18 December 1834, in Correspon-
dence with Foreign Powers Relating to the Slave Trade, class B, 37, in
B.P.P., vol. 14 (reporting the appointment of a new Brazilian judge at
Sierra Leone, approximately six months after the death of the preceding
judge); W. Fergusson and M. L. Melville, Commissioners at Sierra
Leone, to Earl of Aberdeen, 23 January 1842, in Correspondence with
British Commissioners Relating to the Slave Trade, class A, 10, in British
Parliamentary Papers, vol. 23 (1843; photo. repr., Shannon: Irish
University Press, 1969) (hereafter cited as B.P.P., vol. 23) (reporting the
death of a judge); Jos. T. Crawford, Acting Commissioner at Havana, to
Viscount Palmerston, 17 July 1847, in Correspondence with British
Commissioners at Sierra Leone, Havana, Rio de Janeiro, Surinam, Cape of
Good Hope, Jamaica, Loanda, and Boa Vista, Proceedings of British
Vice-Admiralty Courts, and Reports of Naval Officers, Relating to the Slave
Trade, class A, 88, in British Parliamentary Papers, vol. 34 (1847–48;
photo. repr., Shannon: Irish University Press, 1969) (hereafter cited as
B.P.P., vol. 34) (reporting the death of a judge).
13. See Return of Vessels Adjudicated in the British and Brazilian Court of
Mixed Commission at Sierra Leone, Enclosed in James Hook and N.
W. MacDonald, Commissioners at Sierra Leone, to Viscount Palmer-
ston, 6 April 1847, in Correspondence with British Commissioners at
Sierra Leone, Havana, Rio de Janeiro, Surinam, Cape of Good Hope,
Jamaica, Loanda, and Boa Vista, Proceedings of British Vice-Admiralty
Courts, and Reports of Naval Officers, Relating to the Slave Trade, 1847–
48, class A, 22–30, in B.P.P., vol. 34. The Brazilian judges’ absences
were intermittent, as was the court’s caseload. Brazilian judges did not

N OT E S TO PA G E S 6 9 – 7 0 [ 197 ]
 participate in decisions from September 1828 through April 1829,
February 1837 through January 1842, September 1843 through May
1844, and April 1845 through the close of the commission in July
1845. In many years when judges were present, however, no cases were
decided at all. Compare ibid. with Oct. Temple and H. W. Macaulay,
Commissioners at Sierra Leone, to Viscount Palmerston, 30 June 1834,
in Correspondence with the British Commissioners at Sierra Leone, the
Havana, Rio de Janeiro, and Surinam, Relating to the Slave Trade, 1835,
class A, 63, in B.P.P., vol. 14 (reporting the death of a Brazilian judge
who had served for six years, in which few cases were decided).
14. George Canning, Secretary, to Commissioners at Sierra Leone, 26
November 1822, in Correspondence with the British Commissioners at
Sierra Leone, the Havannah, Rio de Janeiro, and Surinam Relating to the
Slave Trade, 1822–23, class B, 5, in British Parliamentary Papers, vol. 9
(1823–24; photo. repr., Shannon: Irish University Press, 1969).
15. For example, some of the Spanish judges at the court in Havana were
prominent landowners and businessmen. See Luis Martinez-Fernández,
Fighting Slavery in the Caribbean: The Life and Times of a British Family in
Nineteenth-Century Havana (Armonk, NY: M.E. Sharpe, 1998), 47.
16. M. L. Melville, Commissioner at Sierra Leone, to the Earl of Aberdeen,
2 February 1842, in Correspondence with British Commissioners Relating
to the Slave Trade, class A, 10, in B.P.P., vol. 23 (recording the swearing
in of the governor of the colony as acting commissioner following
death of incumbent); H. W. Macaulay, Commissioner at Sierra Leone,
to Viscount Palmerston, 14 August 1834, in Correspondence with the
British Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and
Surinam, Relating to the Slave Trade, class A, 8, in B.P.P., vol. 14 (de-
scribing how the lieutenant-governor had replaced the British judge—
who was on leave for health reasons—until the lieutenant-governor
died, at which time he was replaced by the colonial secretary, who
simultaneously became acting governor and acting commissary judge).
17. Anglo-Spanish Treaty of 1817, art. IX.
18. Regulation for the Mixed Commissions, art. V (“Instructions for the
British and Spanish Ships of War Employed to Prevent the Illicit Traffic
in Slaves”).
19. Ibid., art. IX . One of the major changes later made to the treaties was an
amendment of this clause to allow the detention of ships that did not
have slaves onboard but were outfitted for the slave trade.
20. Leslie Bethell, “The Mixed Commissions for the Suppression of the
Transatlantic Slave Trade in the Nineteenth Century,” Journal of African
History 7, no. 1 (1966): 83.

[ 198 ] NOTES TO PAGE 70

21. Christopher Lloyd, The Navy and the Slave Trade, 2nd ed. (London:
Frank Cass, 1968), 83 (describing payments made to the crew of one
“fast and successful” ship between 1839 and 1843 as including £2,628
for the commander, £1,359 for the flag officer, and more than £2,000
shared among other crew members).
22. House of Commons, “First Report from the Select Committee on Slave
Trade,” p. 102, in British Parliamentary Papers, vol. 4 (1847–48; photo.
repr., Shannon: Irish University Press, 1968) (hereafter cited as First
Commons Report) (testimony of Commander Henry James Matson).
23. “Select Committee of the House of Lords to Consider the Best Means
Which Great Britain Can Adopt for the Final Extinction of the African
Slave Trade,” p. 321, in British Parliamentary Papers, vol. 6 (1850; photo.
repr., Shannon: Irish University Press, 1968) (hereafter cited as B.P.P.,
vol. 6) (testimony of Captain Joseph Denman). Denman was also the
son of the lord chief justice, who was an influential abolitionist member
of the House of Lords.
24. Copy of Declaration of Captors of the Spanish Schooner “Anna Maria,”
Detained by His Majesty’s Ship Tartar, in March 1821, in the River
Bonny, on the Coast of Africa, 26 March 1821, in (1822) Further
Papers Relating to the Slave Trade: viz. Copies of Papers Relating to the
Portuguese Brig “Gaviao,” and the Spanish Schooner “Anna Maria,” p. 25,
House of Commons Parliamentary Papers Online (2006), ProQuest
(600), http://gateway.proquest.com/openurl?url_ver=Z39.88-
2004&res_dat=xri:hcpp-us&rft_dat=xri:hcpp:fullt
ext:1822-008134:25.
25. Regulations for the Guidance of the Commissions Appointed for
Carrying into Effect the Treaties for the Abolition of the Slave Trade
(1819), 6 (on file with British National Archives, F.O. 313/1) (hereaf-
ter cited as Commission Regulations) (“It is not absolutely necessary
that the Affidavit should be made by the Commander of the capturing
ship, the Officer in charge of the ship captured is equally competent
thereto”); also see the Earl of Aberdeen to Commissioners at Havana,
18 September 1828, in Correspondence with the British Commissioners at
Sierra Leone, the Havana, Rio de Janeiro, and Surinam, Relative to the
Slave Trade, class A, 128, in British Parliamentary Papers, vol. 12
(1829–31; photo. repr., Shannon: Irish University Press, 1968)
(hereafter cited as B.P.P., vol. 12) (instructing that the captain of the
captor ship need not be present at the adjudication).
26. See, e.g., Report of the Case of the Portuguese Barque “Maria da Gloria,”
Enclosed in Wm. Smith and H. W. Macaulay, Commissioners at Sierra
Leone, to Viscount Palmerston, 31 March 1834, in Correspondence with

N OT E S TO PA G E S 7 0 – 7 2 [ 199 ]
 the British Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and
Surinam, Relating to the Slave Trade, class A, 32, 37, in B.P.P., vol. 14
(describing the removal of sick Africans from a captured slave vessel and
their treatment by a British ship’s surgeon).
27. Ibid.
28. First Commons Report, 156–57 (testimony of Commander Thomas
Francis Birch).
29. Instructions for the British and Spanish Ships of War Employed to
Prevent the Illicit Traffic in Slaves art. VI, Appended to Anglo-Spanish
Treaty of 1817; also see Commission Regulations, 5 (“Form of
Certificate of the Necessity of Disembarking Slaves from a Captured
Vessel”).
30. See, e.g., Return of Portuguese Vessels Adjudicated by the British and
Portuguese Court of Mixed Commission, Established at Sierra Leone,
Between the 30th Day of June and the 31st Day of December, 1838,
Enclosed in H. W. Macaulay and R. Doherty, Commissioners at Sierra
Leone, to John Backhouse, 31 December 1838, in Correspondence with the
British Commissioners at Sierra Leone, the Havana, and Rio de Janeiro,
Relating to the Slave Trade, class A, 93–94, in British Parliamentary Papers,
vol. 17 (1839; photo. repr., Shannon: Irish University Press, 1968)
(hereafter cited as B.P.P., vol. 17) (noting that some slaves died on all ten
ships brought in for adjudication, with death tolls ranging from two to
thirty-one).
31. Captain Keith Stewart to James Kennedy, 1 January 1841, in Correspon-
dence with the British Commissioners at Sierra Leone, the Havana, Rio de
Janeiro, and Surinam, Relating to the Slave Trade, class A, 178, in British
Parliamentary Papers, vol. 21 (1842; photo. repr., Shannon: Irish
University Press, 1968) (hereafter cited as B.P.P., vol. 21). See also, e.g.,
G. Shee to Commissioners at Sierra Leone, 9 December 1830, in
Correspondence with the British Commissioners at Sierra Leone, the
Havana, Rio de Janeiro, and Surinam, Relating to the Slave Trade, class A,
11, in B.P.P., vol. 12 (relaying that the Admiralty Office had ordered
captains to place a medical officer when possible onboard captured
slave ships on their way to adjudication in Sierra Leone); Robert
Hasketh and Frederick Grigg, Commissioners at Rio, to Hamilton, 6
December 1841, in Correspondence with Spain, Portugal, Brazil &c &c,
Relative to the Slave Trade, class B, 306, in B.P.P., vol. 23 (describing con-
cern for expediting proceedings when a ship was captured with slaves
onboard).
32. E. Gregory and Edward Fitzgerald to Viscount Castlereagh, 6 June
1821, in (1822) III. Further Papers Relating to the Slave Trade: Viz.

[ 200 ] NOTES TO PAGES 72–73

 Correspondence with Foreign Powers, and with His Majesty’s Commis-
sioners, p. 61, House of Commons Parliamentary Papers Online
(2006), ProQuest (175), http://gateway.proquest.com/openurl?url_
ver=Z39.88-2004&res_dat=xri:hcpp-us&rft_dat=xri:hcpp:fullt
ext:1822-008131:69.
33. See, e.g., William Hamilton to Commissioners at Sierra Leone, 13
November 1821, in Further Papers Relating to the Slave Trade Viz.
Correspondence with Foreign Powers and with His Majesty’s Commis-
sioners, 1821, 1822, p. 72, in British Parliamentary Papers, vol. 64
(photo. repr., Shannon: Irish University Press, 1969) (advising com-
missioners to “request the assistance of the Governor of Sierra Leone,
in all cases in which any delay in landing the slaves might be attended
with fatal consequences to those suffering individuals”).
34. George Villiers to Viscount Palmerston, 14 October 1835, in Foreign
Powers, Relating to the Slave Trade, class B, 10, in B.P.P., vol. 14 (noting
the opinion of the Spanish government that “the great number of
liberated negroes at the Havana are considered to be dangerous to the
tranquility of the slave population of Cuba”).
35. See J. Kennedy and Campbell J. Dalrymple, Commissioners at Havana,
to Viscount Palmerston, 1 July 1841, in Correspondence with the British
Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam
Relating to the Slave Trade, 1842, class A, 229, in B.P.P., vol. 21 (de-
scribing captured slaves put onboard the HMS Romney in conjunction
with commission trials); George Jackson and Frederick Grigg, Com-
missioners at Rio, to Viscount Palmerston, 12 February 1839, in
Correspondence with the British Commissioners, class A, 144, in B.P.P.,
vol. 17 (acknowledging that a British vessel would be sent to Rio to
house Africans from ships awaiting trial).
36. Regulation for the Mixed Commissions, art. I.
37. See George Jackson and Fred. Grigg, Commissioners at Rio, to
Viscount Palmerston, 5 June 1841, in Correspondence with the British
Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam
Relating to the Slave Trade, 1843, class A, 333, in B.P.P., vol. 21 (discuss-
ing delays in adjudication, based on observance of Brazilian holidays);
H. S. Fox to Viscount Palmerston, 24 July 1834, in Correspondence with
Foreign Powers, 1835, class B, 28, in B.P.P., vol. 14 (discussing negotia-
tions with the Brazilian government about speeding up operation of
the courts); W. Fergusson and M. L. Melville, Commissioners at Sierra
Leone, to the Earl of Aberdeen, 8 January 1842, in Correspondence with
British Commissioners Relating to the Slave Trade, 1842, class A, 65, 68,
in B.P.P., vol. 23 (noting that “in no one of the several Mixed

N OT E S TO PA G E 7 3 [ 201 ]
 Commissions has there been a more prompt adjudication of cases than
in the Courts at Sierra Leone”).
38. Commission Regulations, 5.
39. See, e.g., Interrogatories for the Use of the British Commissioners, to
Be Administered to Witnesses Belonging to the Vessel Taken (1819)
(on file with the British National Archives, F.O. 313/1); W. Fergusson
and M. L. Melville, Commissioners at Sierra Leone, to the Earl of
Aberdeen, 8 January 1842, in Correspondence with British Commissioners
Relating to the Slave Trade, 1842, class A, 65–68, in B.P.P., vol. 23
(describing disagreement with new Brazilian judges about whether to
continue the practice of having the registrar take the depositions).
40. Commodore George R. Collier to J. W. Croker, Esq., 14 February 1820,
in Communications from and Instructions to Naval Officers, 1819–20, p.
16, http://gateway.proquest.com/openurl?url_ver=Z39.88-
2004&res_dat=xri:hcpp-us&rft_dat=xri:hcpp:fullt
ext:1821-007497:16.
41. In their use of written depositions rather than live testimony in front
of the judges, the commissions’ procedures were more similar to
those of British admiralty courts than to those of ordinary common
law courts. See W. Fergusson and M. L. Melville, Commissioners at
Sierra Leone, to the Earl of Aberdeen, 8 January 1842, in Correspon-
dence with the British Commissioners, 1842, class A, 65, 67, in B.P.P.,
vol. 23 (noting that the “intention of the parties who framed the
Treaties and the ‘Regulations’ . . . being, as is understood, and indeed
stated, in the latter document, to assimilate the practice of these
Courts as nearly as possible to that of the High Court of Admiralty,
the mode of taking examinations in use in that Court was adopted in
the Mixed Commissions”). However, the courts declined to borrow
other domestic judicial procedures that were deemed incompatible
with the treaties, such as Spanish and Brazilian modes of appeal. See,
e.g., George Jackson and Frederick Grigg, Commissioners at Rio de
Janeiro, to Viscount Palmerston, 22 January 1839, in Correspondence
with the British Commissioners, 1839, class A, 138, in B.P.P., vol. 17
(discussing a disagreement with Brazilian judges about availability of
“embargoes,” a form of appeal allowed under local law, in cases heard
by the commission); Marques Lisboa, to Viscount Palmerston, 8
April 1839, in Correspondence with Foreign Powers, 1838–39, class B,
128, in B.P.P., vol. 17 (announcing the decision of the Brazilian
government not to allow “embargoes” in mixed commission cases).
42. Enclosure No. 3, in G. R. Collier to J. W. Croker, 21 February 1820, in
Communications from and Instructions to Naval Officers, 1819–20, p. 26,

[ 202 ] NOTES TO PAGE 73

 http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_
dat=xri:hcpp-us&rft_dat=xri:hcpp:fulltext:1821-007497:26 (de-
scribing testimony of two Africans on board one of the ships).
43. See W. Fergusson and M. L. Melville, Commissioners at Sierra Leone,
to the Earl of Aberdeen, 8 January 1842, in Correspondence with British
Commissioners, 1842, class A, 65, in B.P.P., vol. 23.
44. See, e.g., Alex Finley and Wm. Smith, Commissioners at Sierra Leone,
to the Earl of Aberdeen, 4 May 1830, in Correspondence with the British
Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam,
Relating to the Slave Trade, 1830, class A, 59–60, in B.P.P., vol. 12
(reporting the agreement of British and Brazilian judges in the case of
the Emilia).
45. Captain Henry J. Leeke to Commodore G. R. Collier, on board His
Majesty’s Ship Myrmidon, 15 December 1819, Enclosed in Commo-
dore G. R. Collier to J. W. Croker, Esq., 23 January 1820, in Communi-
cations from and Instructions to Naval Officers, 1819–20, p. 6, http://
gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_
dat=xri:hcpp-us&rft_dat=xri:hcpp:fulltext:1821-007497:6.
46. See Judgment Given in the Case of the Spanish Brig Diligente, 12
October 1838, Enclosed in H. W. Macaulay and R. Doherty to
Viscount Palmerston, 20 October 1838, in Correspondence with the
British Commissioners, 1838–39, class A, 17–24, in B.P.P., vol. 17
(discussing case law); Viscount Palmerston to George Jackson and
Frederick Grigg, Commissioners at Rio, 8 October 1834, in Corre-
spondence with British Commissioners, 1835, class A, 147, in B.P.P., vol.
14 (noting that “it is a principle of the Law of Nations, that the
national character of a merchant is to be taken from the place of his
residence of his mercantile establishment, and not from the place of
his birth,” and instructing them to apply this rule in future cases);
George Jackson and Fred. Grigg, Commissioners, to Viscount
Palmerston, 10 November 1835, in Correspondence with the British
Commissioners, 1836, class A, 309–10, in B.P.P., vol. 14 (reporting the
agreement of the Brazilian government on this point).
47. See, e.g., Report of the Case of the Spanish Schooner “Opposiçao,”
Enclosed in H. W. Macaulay and R. Doherty, Commissioners at Sierra
Leone, to Viscount Palmerston, 15 August 1838, in Correspondence
with the British Commissioners, 1838–39, class A, 6, 9, in B.P.P., vol. 17
(condemning as Spanish a ship with a Portuguese flag and papers that
was equipped for the slave trade, based on the principle that “the
national character of a merchant is to be taken from the place of his
residence, and of his mercantile establishment, and not from the place

N OT E S TO PA G E S 7 3 – 7 5 [ 203 ]
 of his birth”); Report of the Case of the Brig Diligente, 12 October
1838, Enclosed in H. W. Macaulay and R. Doherty, Commissioners at
Sierra Leone, to Viscount Palmerston, 20 October 1838, in Correspon-
dence with the British Commissioners, 1838–39, class A, 13, in B.P.P., vol.
17 (condemning as Spanish a Portuguese-flagged ship); Report of the
Case of the Schooner Sirse, Enclosed in H. W. Macaulay and R.
Doherty, Commissioners at Sierra Leone, to Viscount Palmerston, 22
December 1838, in Correspondence with the British Commissioners,
1838–39, class A, 26, in B.P.P., vol. 17 (same, based on the course-of-
trade test).
48. Compare Anglo-Spanish Treaty of 1817, art. I, with Additional
Convention Between Great Britain and Portugal for the Prevention of
the Slave Trade art. II, Gr. Brit.–Port., 28 July 1817, 67 Consol. T.S. 398
(1817) (hereafter cited as Anglo-Portuguese Treaty of 1817); also see,
e.g., Wm. Smith and H. W. Macauley, Commissioners at Sierra Leone,
to Viscount Palmerston, 22 March 1834, in Correspondence with the
British Commissioners, class A, 31, in B.P.P., vol. 14 (noting that court
was “reluctantly compelled” to restore the Portuguese ship, the Maria
da Gloria, because it was captured south of the equator).
49. Treaty Between Great Britain and Spain, for the Abolition of the Slave
Trade art. X, Gr. Brit.–Spain, 28 June 1835, 85 Consol. T.S. 177
(1834–36) (hereafter cited as Anglo-Spanish Treaty of 1835); Treaty
Between Great Britain and Portugal, for the Suppression of the Traffic
in Slaves art. V, 30 July 1842, in British and Foreign State Papers, vol. 30
(London: James Ridgway and Sons, 1858), 527 (hereafter cited as
Anglo-Portuguese Treaty of 1842).
50. See, e.g., H. W. Macauley and R. Doherty, Commissioners at Sierra
Leone, to Viscount Palmerston, 22 December 1838, in Correspondence
with the British Commissioners, 1838–39, class A, 26, in B.P.P., vol. 17
(noting that “[o]f illegal equipment for the Slave Trade there could be
no doubt: but this fact could only avail in the case of a Spanish vessel”
and reporting that the commission found the Sirse to be Spanish based
on its course of trade, notwithstanding its Portuguese flag and papers);
M. L. Melville, Commissioner at Sierra Leone, to the Earl of Aberdeen,
31 December 1841, in Correspondence with British Commissioners, 1842,
class A, 29–32, in B.P.P., vol. 23 (reporting the cases of the Recurso, San
Paulo de Loando, Boa Uniao, Josephina, Erculos, and Paz, all of which
bore a Portuguese flag and papers but were found to be Spanish and
condemned); M. L. Melville, Commissioner at Sierra Leone, to the
Earl of Aberdeen, 31 December 1841, in Correspondence with British
Commissioners, 1842, class A, 60, 61, in B.P.P., vol. 23 (reporting case of

[ 204 ] NOTES TO PAGE 75

 the Bellona, condemned and found to be Brazilian despite its Portu-
guese flag).
51. Explanatory and Additional Articles to the Treaty Between Great
Britain and Spain, for the Prevention of the Traffic in Slaves, Gr. Brit.–
Spain, 10 December 1822, in British and Foreign State Papers, vol. 10
(London: James Ridgway and Sons, 1850), 87; Additional Articles
Between Great Britain and Portugal, Gr. Brit.–Port., 15 March 1823, in
British and Foreign State Papers, vol. 11 (London: James Ridgway and
Sons, 1843), 23.
52. Anglo-Spanish Treaty of 1835; Anglo-Portuguese Treaty of 1842.
Although the Anglo-Brazilian Treaty was not amended to include an
equipment clause, it was reinterpreted by the judges to allow the
condemnation of such ships. See, e.g., Return of Vessels Adjudicated by
the British and Brazilian Court of Mixed Commission, Established at
Sierra Leone, Between the 1st Day of July and the 31st Day of Decem-
ber, 1840, Enclosed in H. W. Macauley and R. Doherty, Commis-
sioners at Sierra Leone, to Viscount Palmerston, 15 November 1839, in
Correspondence with British Commission Relative to the Slave Trade, class
A, 123, in British Parliamentary Papers, vol. 20 (1841; photo. repr.,
Shannon: Irish University Press, 1969) (hereafter cited as B.P.P., vol.
20) (reporting several cases of condemnation of ships with no slaves
onboard at the time of capture).
53. See, e.g., Report of the Case of the Paquete do Sul, Enclosed in George
Jackson and Fred. Grigg to Viscount Palmerston, 30 January 1834, in
Correspondence with the British Commissioners, 1835, class A, 133, in
B.P.P., vol. 14.
54. See, e.g., Report of the Case of the Schooner Sirse, Enclosed in H. W.
Macaulay and R. Doherty to Viscount Palmerston, 22 December 1838,
in Correspondence with the British Commissioners, 1838–39, class A,
26–32, in B.P.P., vol. 17.
55. See, e.g., George Jackson and Fred. Grigg, Commissioners at Rio, to
Viscount Palmerston, 15 January 1839, in Correspondence with the
British Commissioners, class A, 132, in B.P.P., vol. 17 (“the Brazilian
Commissary Judge joined Her Majesty’s Judge, without any difficulty,
in this sentence [of condemnation]”); George Jackson and Fred.
Grigg, Commissioners at Rio, to Viscount Palmerston, 30 June 1841,
in Correspondence with the British Commissioners at Sierra Leone, the
Havana, Rio de Janeiro, and Surinam Relating to the Slave Trade, class A,
344–45, in B.P.P., vol. 21 (noting that the judges were unanimous that
a ship captured in a territorial creek was not within the court’s
jurisdiction).

N OT E S TO PA G E 7 5 [ 205 ]
 56. See note 13.
57. See, e.g., George Jackson and Fred. Grigg, Commissioners at Rio, to
Viscount Palmerston, 31 October 1840, in Correspondence with the
British Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and
Surinam Relating to the Slave Trade, class A, 279, 281, in B.P.P., vol. 21
(reporting a case in which the British arbitrator sided with the Brazilian
judge).
58. See, e.g., H. T. Kilbee, Commissioner at Havana, to George Canning,
Secretary, 31 July 1824, in Correspondence with the British Commis-
sioners, class A, 68, in British Parliamentary Papers, vol. 10 (1825–26;
photo. repr., Shannon: Irish University Press, 1968) (hereafter cited as
B.P.P., vol. 10); also see Bethell, “Mixed Commissions,” 85–86.
59. W. G. Ouseley to Viscount Palmerston, 25 February 1839, in Corre-
spondence with Foreign Powers Relating to the Slave Trade, class B, 139, in
B.P.P., vol. 17 (describing the removal of Senhor Joaquim Feliciano
Gomez). The Portuguese judges at Loanda in 1844–45 were also
notorious participants in the slave trade. David Eltis, Economic Growth
and the Ending of the Transatlantic Slave Trade (New York: Oxford
University Press, 1987), 114. Some British judges were also less than
effective. One critic said of the British judges at Havana that one spent
“his whole time” studying ornithology and the other was a “poor man
. . . too simple to do good, and too innocent to do harm.” Martínez-
Fernández, Fighting Slavery in the Caribbean, 47. One British commis-
sioner at Rio was also criticized for incompetence and possible
corruption. Leslie Bethell, The Abolition of the Brazilian Slave Trade
(New York: Cambridge University Press, 1970), 201–2.
60. Martínez-Fernández, Fighting Slavery in the Caribbean, 47.
61. These numbers were calculated from the Revised Trans-Atlantic Slave
Trade Database using the “FATE” variable. David Eltis et al., Trans-
Atlantic Slave Trade Database, http://www.slavevoyages.org , accessed
February 1, 2010.
62. Bethell, Abolition of the Brazilian Slave Trade, 194–98.
63. See, e.g., Regulation for the Mixed Commissions, art. VII. The alloca-
tion of prize money to crews was an important way for the navy to
increase the pay for naval officers without draining the national
treasury.
64. See Bethell, “Mixed Commissions,” 88 n. 33.
65. See Lloyd, Navy and the Slave Trade, 83. The amount of prize money
offered to British ships varied over the years. Other countries did not
always offer prize money to their naval officers.
66. Ibid.

[ 206 ] NOTES TO PAGES 76–77

67. See Viscount Palmerston to Lord Howard de Walden, 14 February 1839,
in Correspondence with Foreign Powers, class B, 42, 43, in B.P.P., vol. 17
(discussing the Diligente, which had been captured by the British and
condemned at Sierra Leone, and whose crew had been sent to Lisbon to
be tried under Portuguese law); the Earl of Aberdeen to Commissioners
at Rio, 21 September 1841, in Correspondence with the British Commis-
sioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam Relating to
the Slave Trade, class A, 355–56, in B.P.P., vol. 21 (discussing the acquittal
by Brazilian criminal courts of crew members declared by the mixed
commission to have been engaged in piracy). For example, in one letter
the commissioners at Sierra Leone related that Lord Palmerston had
rejected their suggestion that slave crews be held in custody at Sierra
Leone until they could be sent to their own countries for punishment,
on the grounds that there was no legal authority for such detention. The
commissioners reiterated their suggestion that punishment of slave
crews would be likely to check the slave trade and that crews “at present
are invariably thrown loose on the coast, and help to man many a vessel
which otherwise would be unable to carry off her human cargo for want
of hands.” W. Fergusson and M. L. Melville, Commissioners at Sierra
Leone, to Viscount Palmerston, 23 September 1841, in Correspondence
with the British Commissioners at Sierra Leone, the Havana, Rio de Janeiro,
and Surinam Relating to the Slave Trade, class A, 31, in B.P.P., vol. 21.
Later, the mixed courts were authorized to hold slave crews in custody
until they could be transferred to national authorities for trial. See
George Frere and Frederic R. Surtees, Commissioners at Cape of Good
Hope, to Viscount Palmerston, 31 October 1846, in Correspondence with
the British Commissioners at Sierra Leone, Havana, Rio de Janeiro, Surinam,
Cape of Good Hope, Jamaica, Loanda, and Boa Vista, Proceedings of British
Vice-Admiralty Courts, and Reports of Naval Officers, Relating to the Slave
Trade, class A, 113, in B.P.P., vol. 34 (acknowledging the opinion of
British law officers that under Article XII of the Anglo-Portuguese Treaty
of 1842, slave crews could be detained in custody by the mixed commis-
sion until they could be turned over to their own governments for trial);
Ildefonso Leopoldo Bayard to Alfredo Duprat, Portuguese Commis-
sioner, 22 May 1847, in Correspondence with the British Commissioners at
Sierra Leone, Havana, Rio de Janeiro, Surinam, Cape of Good Hope,
Jamaica, Loanda, and Boa Vista, Proceedings of British Vice-Admiralty
Courts, and Reports of Naval Officers, Relating to the Slave Trade, class A,
130, in B.P.P., vol. 34 (instructing the Portuguese commissioner that
slave crews should be sent to Loanda or Cape Verde and “delivered to
the respective Governor-Generals, to be dealt with according to law”).

N OT E S TO PA G E 7 7 [ 207 ]
 68. See First Commons Report, 15–16 (testimony of Viscount Palmerston).
69. See Registry of Slaves: Sierra Leone (on file with the British National
Archives, F.O. 315/31) (original logbooks).
70. See, e.g., John Samo and Fred. Grigg, Commissioners at Rio, to the Earl
of Aberdeen, 23 September 1842, in Correspondence with British
Commissioners Relating to the Slave Trade, class A, 291–94, in B.P.P., vol.
23 (describing a case in which British and Brazilian judges disagreed
about whether the claimant was entitled to indemnity).
71. See Bethell, Abolition of the Brazilian Slave Trade, 130 (“British commis-
sioners were specifically instructed that in reaching a verdict they should
never lose sight of their judicial character, and that they should ‘uni-
formly endeavor to combine a fair and conscientious zeal for the
prevention of the illegal traffic in slaves with the maintenance of the
strictest justice towards the parties concerned’”) (quoting letter from
Viscount Castlereagh to Thomas Gregory, 19 February 1819).
72. See, e.g., Commission Regulations, 6.
73. See, e.g., Viscount Palmerston to Commissioners at Rio, 22 March
1839, in Correspondence with the British Commissioners at Sierra Leone,
the Havana, and Rio de Janeiro Relating to the Slave Trade, 1839, class A,
136, in B.P.P., vol. 17 (requesting that the commissioners send more
detailed information about every case, including “translation in full of
the deposition made by each witness” and “copies or translations of
every paper,” “a statement of the argument which may have been given
by each member of the Court,” so that the government could “form a
sure opinion upon the merits of each case respectively”); the Earl of
Aberdeen to Commissioners at Sierra Leone, 28 December 1828, in
Correspondence with the British Commissioners at Sierra Leone, the
Havana, Rio de Janeiro, and Surinam Relative to the Slave Trade, 1829,
class A, 19, in B.P.P., vol. 12 (similar); Foreign Office to Commissioners
at Sierra Leone, 6 December 1837 (on file with the British National
Archives, F.O. 315/4), 573 (“I am directed by Viscount Palmerston to
observe to you that your Dispatches and Reports should be copied in
Black Ink, and I am to desire, that you will not give his Lordship
occasion to make this remark again”).
74. See, e.g., George Lansing, Commissioner at Sierra Leone, to the
Foreign Office, 25 September 1822 (on file with the British National
Archives, F.O. 315/1), 241 (disapproving of the court’s decision in the
case of the Spanish schooner Rosalia); Viscount Palmerston to Com-
missioners at Rio, 8 October 1834, in Correspondence with the British
Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam,
Relating to the Slave Trade, 1834, class A, 147, in B.P.P., vol. 14 (stating

[ 208 ] NOTES TO PAGE 77

 that the commission was wrong to release the Maria da Gloria because,
although it had a Portuguese flag and papers, it was owned by a
merchant resident in Rio and “it is a principle of the Law of Nations,
that the national character of a merchant is to be taken from the place
of his residence and of his mercantile establishment, and not from the
place of his birth,” and instructing them to so rule in future cases).
75. See, e.g., George Canning, Secretary, to Commissioners at Sierra
Leone, 29 May 1824, in Correspondence with the British Commissioners
at Sierra Leone, the Havannah, Rio de Janeiro, and Surinam, Relating to
the Slave Trade, 1824–25, class A, 27, in B.P.P., vol. 10 (transmitting the
opinion of the King’s Advocate on what the commissioners ought to do
in the case of the Fabiana); Viscount Palmerston to Commissioners at
Rio de Janeiro, 26 March 1836, in Correspondence with British Commis-
sioners Relating to the Slave Trade at Sierra Leone, the Havana, Rio de
Janeiro, and Surinam, 1835, class A, 314, in B.P.P., vol. 14 (transmitting
the opinion of the king’s advocate-general on issues in two cases); John
Samo and Fred. Grigg, Commissioners at Rio de Janeiro, to the Earl of
Aberdeen, 20 September 1842, in Correspondence with the British
Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam
Relating to the Slave Trade, 1842, class A, 291, in B.P.P., vol. 23 (asking
for instructions).
76. See Bethell, “Mixed Commissions,” 87 (noting that the Brazilian
commissioners “on instructions from their government” objected to
the seizures of ships equipped for the slave trade but without slaves
onboard).
77. See, e.g., Viscount Palmerston to Commissioners at Havana, 11 August
1841, in Correspondence with the British Commissioners Relating to the
Slave Trade, 1841, class A, 217, in B.P.P., vol. 21 (“With reference to
your Despatches of the 22nd of January and of the 15th of February
last, reporting the state of the Slave Trade at the Havana . . . I herewith
transmit to you, for your information, a Copy of a Communication,
which I have received from Her Majesty’s Commissioners at Sierra
Leone, containing some Observations upon our Despatches above
mentioned”).
78. See, e.g., George Canning, Secretary, to Commissioners at Sierra
Leone, 16 March 1825, in Correspondence with the British Commis-
sioners at Sierra Leone, the Havannah, Rio de Janeiro, and Surinam,
Relating to the Slave Trade, 1824–25, class A, 57, in B.P.P., vol. 10
(transmitting “[t]wo dispatches from the Consul General at Rio de
Janeiro, on the subject of the Brazilian Government regulations on the
tonnage of slave ships”).

N OT E S TO PA G E S 7 7 – 7 8 [ 209 ]
 79. See, e.g., Viscount Palmerston to G. W. F. Villiers, 6 October 1834, in
Correspondence with Foreign Powers Relating to the Slave Trade, 1834,
class B, 12, in B.P.P., vol. 14 (transmitting reports from courts at Havana
and Sierra Leone to a British diplomat in Madrid).
80. See, e.g., W. G. Ouseley to Captain Herbert, R.N., 24 January 1839, in
Correspondence with Spain, Portugal, and Brazil, Relative to the Slave
Trade, 1839, class B, 130, in B.P.P., vol. 17 (communicating informa-
tion, via the local British consul, from commissioners to captains about
the interpretation of a treaty regarding captures of ships without slaves
onboard).
81. See generally the correspondence between Britain and other nations,
which runs to hundreds of pages a year in each of the annual sets of
British Parliamentary Papers on the slave trade.
82. See Howard Hazen Wilson, “Some Principal Aspects of British Efforts
to Crush the African Slave Trade, 1807–1929,” American Journal of
International Law 44 (1950): 505, 509 n. 22.
83. See Bethell, “Mixed Commissions,” 82.
84. See ibid., 83.
85. See ibid.
86. See Bethell, Abolition of the Brazilian Slave Trade, 92.
87. See, e.g., Henry T. Kilbee, Commissioner at Havana, to George
Canning, 30 December 1824, in Correspondence with the British
Commissioners, at Sierra Leone, the Havannah, Rio de Janeiro, and
Surinam, Relating to the Slave Trade, 1824–25, class A, 140, in B.P.P., vol.
10 (reporting that the emancipation of the slaves by the mixed commis-
sion had “excited considerable sensation among the inhabitants of this
place” who had demanded that the local government invalidate the
commission’s verdict); also see Bethell, “Mixed Commissions,” 83–84.
88. See Bethell, “Mixed Commissions,” 84.
89. Registry of Slaves: Sierra Leone (on file with the British National
Archives, F.O. 315/31) (original logbooks).
90. See Bethell, “Mixed Commissions,” 89.
91. See Figures 4.1 and 4.2, infra.
92. The average percentage of known voyages of all fates that ended up in
the mixed courts from 1830 to 1845 is 18.8 percent. These calculations
from the online Trans-Atlantic Slave Trade Database were calculated
using the year of departure variable (“YEARDEP”) for the year, and
the variable describing the outcome of each voyage (“FATE”) to count
ships adjudicated in mixed commissions as well as the total known
voyages for each year. These estimates are consistent with those of
other scholars. See Eltis, Economic Growth, 97–99 (calculating that one

[ 210 ] NOTES TO PAGES 78–80

 in five ships involved in the traffic were intercepted and condemned in
either the mixed courts or in national courts); Lloyd, Navy and the
Slave Trade, 117 (estimating that one in four slaving vessels was
captured).
93. These reports appear in the annual volumes of British and Foreign State
Papers and the British Parliamentary Papers: Slave Trade Series. See Eltis,
Trans-Atlantic Slave Trade Database.
94. Such a study would require imputation of missing data about slave
voyages, as well as information about a number of variables, including
commodity prices, crop failures, weather, tariffs, free labor costs,
elasticity of demand, and other factors in the interdependent markets
for slaves and the commodities produced by plantation slave labor.
95. See “Report from the Select Committee of the House of Lords,
Appointed to Consider the Best Means Which Great Britain Can
Adopt for the Final Extinction of the African Slave Trade, 1850,” p. 1, in
B.P.P., vol. 6 (hereafter cited as Lords Report 1850); “Report from the
Select Committee of the House of Lords, Appointed to Consider the
Best Means Which Great Britain Can Adopt for the Final Extinction of
the African Slave Trade, 1849,” p. 1, in B.P.P., vol. 6 (hereafter cited as
Lords Report 1849).
96. See First Commons Report, 2–3 (testimony of Viscount Palmerston)
(stating that suppression efforts had not increased the cruelty of the
slave trade); ibid., 23 (testimony of Joseph Denman) (stating that they
had).
97. See ibid., 95 (questions of William Hutt, chairman of the Select
Committee).
98. House of Commons, “Second Report from the Select Committee on
Slave Trade, 1848,” p. 15, in British Parliamentary Papers, vol. 4 (1847–
48; photo. repr., Shannon: Irish University Press, 1968) (hereafter cited
as Second Commons Report) (testimony of William Smith). Smith did
believe that entering into treaties with local chiefs to increase legitimate
commerce in Africa would reduce the supply of slaves. Ibid., 18. He
also believed that it would be necessary to keep some warships on the
coast to enforce the treaties and protect legitimate commerce. Ibid., 20.
99. See Lords Report 1849, 128 (testimony of Commodore Charles
Hotham); see also Lloyd, Navy and the Slave Trade, 120–22. There
appears to be some basis for the criticism of Hotham. When asked
about his knowledge of Africa before taking up command of the
squadron, he answered, “None whatever; I am almost ashamed to say
that I had never even directed my attention to the subject.” Lords
Report 1849, 110 (testimony of Commodore Charles Hotham).

N OT E S TO PA G E S 8 0 – 8 3 [ 211 ]
 Moreover, once in command, he did not consult officers of longer
experience on the African coast about the best way to carry out the
suppression mission. Almost with pride, he stated, “During the time of
my commanding the African station, I consulted no one who happened
to be serving under my orders at the time” and that, in general, com-
modores did not seek the opinions of their inferior officers. Ibid.,
115–16.
100. Lloyd, Navy and the Slave Trade, 112–13.
101. First Commons Report, 4 (testimony of Viscount Palmerston).
102. Ibid., 10. This figure included ships condemned by British vice-admi-
ralty courts as well as the mixed commissions.
103. See Eltis, Economic Growth, 262.
104. See Second Commons Report, 66 (testimony of Captain George
Manuel); ibid., 99 (testimony of Thomas Berry Horsfall); ibid., 162
(testimony of John Bramley Moore).
105. Ibid., 99 (testimony of Thomas Berry Horsfall).
106. During his stay in Havana, Turnbull was reportedly involved with plans
by free blacks for insurrection. Eltis, Economic Growth, 118.
107. Lords Report 1850, 71 (testimony of David Turnbull) (“In the
beginning of my residence in Cuba [the slave trade] was not on the
increase; and I think that a great deal has been done in the way of
prevention”).
108. First Commons Report, 52–53 (testimony of Captain Edward Harris
Butterfield). Many of Butterfield’s prizes, however, were taken to the
vice admiralty court in St. Helena. Ibid., 57–58.
109. Ibid., 58–59.
110. Second Commons Report, 2 (testimony of Captain Christopher
Wyvill).
111. First Commons Report, 95 (testimony of Commander Henry James
Matson).
112. Ibid., 2–3 (testimony of Viscount Palmerston); ibid., 23 (testimony of
Captain Joseph Denman).
113. Even prior to the treaty, British crews did occasionally board French
ships. See List of French Slave-Vessels Boarded by the British Squadron
Employed on the Western Coast of Africa, Between the 1st of June and
the 14th of December 1827, Enclosed in the Earl of Dudley to Vis-
count Granville, 25 January 1828, in Correspondence with Foreign
Powers, Relating to the Slave Trade, class B, 123–24, in B.P.P., vol. 12
(listing twelve boardings).
114. A. Taylor Milne, “The Lyon-Seward Treaty of 1862,” American Histor-
ical Review 38, no. 3 (1933): 511–14.

[ 212 ] NOTES TO PAGES 83–85

115. See David Eltis, “The Nineteenth-Century Transatlantic Slave Trade:
An Annual Time Series of Imports into the Americas Broken Down by
Region,” Hispanic American Historical Review 67, no. 1 (1987): 136,
table V.
116. See figure 4.3, infra; also see Lawrence C. Jennings, “France, Great
Britain and the Repression of the Slave Trade, 1841–1845,” French
Historical Studies 10, no. 1 (1977): 101, 105, 123 (discussing France’s
suspension of the “right to search”).
117. See Betty Fladeland, Men and Brothers: Anglo-American Antislavery
Cooperation (Urbana: University of Illinois Press, 1972), 125–44.
118. Viscount Palmerston to Earl Granville, 3 June 1834, in Correspondence
with Foreign Powers Relating to the Slave Trade, class B, 52–53, in B.P.P.,
vol. 14 (discussing negotiations with the United States on the treaty,
including U.S. objections to a clause regarding searches on the coast of
America, which the British and French then offered to remove); Sir
Charles Vaughan to Viscount Palmerston, 28 August 1834, in Correspon-
dence with Foreign Powers Relating to the Slave Trade, class B, 88, in B.P.P.,
vol. 14 (reporting on negotiations).
119. See, e.g., Return of Vessels Adjudicated by the British and Spanish
Mixed Court of Justice, Established at Sierra Leone, Between July 1 and
December 31, 1840, Enclosed in John Jeremie and Walter W. Lewis,
Commissioners at Sierra Leone, to John Backhouse, 31 December
1840, in Correspondence with the British Commissioners at Sierra Leone,
the Havana, Rio de Janeiro, and Surinam Relating to the Slave Trade, class
A, 57–58, in B.P.P., vol. 21 (noting the condemnation of the Plant and
the Clara as Spanish ships, despite their flying of American colors).
120. See Viscount Palmerston to A. Stevenson, 5 August 1841, in Correspon-
dence with Foreign Powers, Relating to the Slave Trade, class D, 255–57, in
B.P.P., vol. 21 (describing an agreement entered into between the
British and American commanding officers off the coast of Africa);
Agreement Between Commander William Tucker of the HMS Wol-
verene and Lieutenant John S. Paine of the USS Grampus, 11 March
1840, in Correspondence with Foreign Powers Not Parties to Conventions
Giving Right of Search of Vessels Suspected of the Slave Trade, class D,
76–77, in B.P.P., vol. 20.
121. See, e.g., United States v. Morris, 39 U.S. (14 Pet.) 464 (1840) (discuss-
ing an American criminal prosecution arising out of the capture of the
Butterfly by the HMS Dolphin); Consul James Buchanan to Viscount
Palmerston, 10 June 1841, in Correspondence with Foreign Powers,
Relating to the Slave Trade, class D, 319, in B.P.P., vol. 21 (discussing the
case of the Butterfly); the Earl of Aberdeen to Consul James Buchanan,

N OT E S TO PA G E S 8 5 – 8 6 [ 213 ]
 30 September 1841, in Correspondence with Foreign Powers, Relating to
the Slave Trade, class D, 323, in B.P.P., vol. 21 (discussing American
courts’ condemnation of the Butterfly and the Catherine).
122. See John Jeremie and Walter W. Lewis, Commissioners at Sierra Leone,
to Viscount Palmerston, 31 December 1840, in Correspondence with the
British Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and
Surinam, Relating to the Slave Trade, class A, 51–57, in B.P.P., vol. 21.
123. See Commander William Tucker to More O’Ferrall, HMS Wolverene,
16 March 1841, in Correspondence with Foreign Powers, Relating to the
Slave Trade, class D, 246, in B.P.P., vol. 21 (reporting a meeting with the
USS Cyane, and noting, “I still more and very deeply regret that the
American men-of-war remain so very short a time on the coast” though
Tucker believed, “The American men-of-war, I am convinced, have
been of service on this coast, inasmuch as the knowledge of it has
prevented many vessels from raising their flag” and citing examples).
124. See A. Stevenson to Viscount Palmerston, 9 August 1841, in Correspon-
dence with Foreign Powers, Relating to the Slave Trade, class D, 258, in
B.P.P., vol. 21 (noting, in relation to the agreement between the British
and American commanders to which Palmerston alluded, that he had no
official information and “had no reason to suppose that such authority
had been confided by the American Government to any of its naval
officers”).
125. See, e.g., A. Stevenson to the Earl of Aberdeen, 10 September 1841, in
Correspondence with Foreign Powers, Relating to the Slave Trade, class D,
263, 266, in B.P.P., vol. 21.
126. See, e.g., Viscount Palmerston to A. Stevenson, 5 August 1841, in
Correspondence with Foreign Powers, Relating to the Slave Trade, 1842,
class D, 255, in B.P.P., vol. 21; A. Stevenson to Viscount Palmerston, 9
August 1841, in Correspondence with Foreign Powers, Relating to the
Slave Trade, 1842, class D, 258, in B.P.P., vol. 21; Viscount Palmerston
to A. Stevenson, 27 August 1841, in Correspondence with Foreign
Powers, Relating to the Slave Trade, 1842, class D, 260, in B.P.P., vol. 21;
A. Stevenson to the Earl of Aberdeen, 10 September 1841, in Corre-
spondence with Foreign Powers, Relating to the Slave Trade, 1842, class D,
263, 266, in B.P.P., vol. 21; the Earl of Aberdeen to A. Stevenson, 13
October 1841, in Correspondence with Foreign Powers, Relating to the
Slave Trade, 1842, class D, at 267, 269, in B.P.P., vol. 21 (arguing that
the “rights which have been mutually conceded to each other by the
Governments of Great Britain and France, can scarcely be incompat-
ible with the honour and independence of any State upon the face of
the earth”).

[ 214 ] NOTES TO PAGES 86–87

127. See Sir John Barrow to the Commanders in Chief and Senior Officers
at the Cape of Good Hope, Coast of Africa, West Indies, and Brazil, 7
December 1841, in Correspondence with Foreign Powers, Relating to the
Slave Trade, 1842, class D, 279, in B.P.P., vol. 21 (ordering naval officers
“neither to capture nor interfere with, nor even to visit United States’
vessels, whether they shall have slaves on board or not,” yet noting that
“it is not intended to allow vessels of other nations to escape visit and
examination by merely hoisting an United States flag” and suggesting
that if there was reason to suspect a vessel was not truly American, a
British ship would be justified in boarding it to examine its papers, but
ordering immediate reports of all such boardings to be sent to Lon-
don). In the Treaty of 1845, France reportedly agreed with Britain on
the right of visit to verify the flag, and one navy captain argued before
Parliament that, with France’s backing on this principle of the law of
nations, British ships would be justified in boarding American-flagged
slave ships on the inference that they were really Portuguese, Spanish,
or Brazilian. First Commons Report, 23 (testimony of Captain Joseph
Denman).
128. See Webster-Ashburton Treaty, U.S.–Gr. Brit., August 10, 1842, 8
Stat. 572.
129. Warren S. Howard, American Slaves and the Federal Law, 1837–1863
(Berkeley: University of California Press, 1963), 202, 214–35.
130. See, e.g., Commissioners at Sierra Leone to Viscount Palmerston, 24
January 1842, in Correspondence with British Commissioners Relating to
the Slave Trade, 1842, class A, 33, in B.P.P., vol. 23.
131. See First Commons Report, 8 (testimony of Viscount Palmerston);
Arthur F. Corwin, Spain and the Abolition of Slavery in Cuba, 1817–
1886 (Austin: University of Texas Press, 1967), 96; also see Rear-
Admiral Campbell to Mr. Wood, 14 December 1835, in Correspondence
with Foreign Powers, Relating to the Slave Trade, 1835, class B, 40, in
B.P.P., vol. 14 (noting that traffic is carried on “to a most extraordinary
extent” by Spanish and Portuguese vessels).
132. First Commons Report, 6 (testimony of Viscount Palmerston); also
see, e.g., Lord Stuart de Rothesay to Viscount Palmerston, 26 Novem-
ber 1830, in Correspondence with Foreign Powers, Relating to the Slave
Trade, 1829–31, class B, 165, in B.P.P., vol. 12 (reporting criminal
sentences against slave traders by the French court in Guadaloupe).
133. First Commons Report, 17 (testimony of Viscount Palmerston).
134. Ibid., 6.
135. Ibid., 7. However, other witnesses, including Sir Charles Hotham, who
had commanded the African squadron, viewed the nonparticipation of

N OT E S TO PA G E S 8 7 – 8 8 [ 215 ]
 the United States as a more significant problem. Ibid. (responding to
Hotham’s testimony).
136. Figure 4.3 was compiled from the Revised Trans-Atlantic Slave Trade
Database using the YEARDEP variable for the year of departure for the
voyage and the NATIONAL variable for the country in which the ship
was registered, if known. The imputed nationality variable was not
used, as it might not accurately reflect what this figure is concerned
with.
137. In addition, some ships carried multiple flags. Thus, the number of
ships that carried American or French flags onboard may be seriously
underrepresented in the database.
138. J. P. Van Niekerk, “British, Portuguese, and American Judges in
Adderley Street: The International Legal Background to and Some
Judicial Aspects of the Cape Town Mixed Commissions for the
Suppression of the Transatlantic Slave Trade in the Nineteenth
Century (pt. 3),” Comparative and International Law Journal of
Southern Arica 37 (2004): 413.
139. Ibid., 432. For the history of the negotiations behind the 1862 treaty,
see Milne, “Lyon-Seward Treaty,” 511.
140. See First Commons Report, 32 (testimony of Captain Joseph Den-
man).
141. W. M. Smith and H. W. Macaulay, Commissioners at Sierra Leone, to
Viscount Palmerston, 9 April 1834, in Correspondence with the British
Commissioners, at Sierra Leone, the Havana, Rio de Janeiro, and Surinam,
Relating to the Slave Trade, class A, 45–46, in B.P.P., vol. 14. In this case,
the British commissioners sat alone, due to the vacancy of the Portu-
guese seats on the commission. Viscount Palmerston to Lord Howard
de Walden, 7 October 1834, in Correspondence with Foreign Powers,
Relating to the Slave Trade, class B, 18, in B.P.P., vol. 14.
142. W. M. Smith and H. W. Macaulay, Commissioners at Sierra Leone, to
Viscount Palmerston, 9 April 1834, in Correspondence with the British
Commissioners, at Sierra Leone, the Havana, Rio de Janeiro, and Surinam,
Relating to the Slave Trade, class A, 45–46, in B.P.P., vol. 14.
143. Viscount Palmerston to Lord Howard de Walden, 7 October 1834, in
Correspondence with Foreign Powers, Relating to the Slave Trade, class B,
18, 19, in B.P.P., vol. 14; also see Viscount Palmerston to Commis-
sioners at Rio, 8 October 1834, in Correspondence with the British
Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam,
Relating to the Slave Trade, class A, 147, in B.P.P., vol. 14 (stating that
commission misapplied the law to the facts in releasing the Maria da
Gloria).

[ 216 ] NOTES TO PAGES 88–91

144. W. M. Smith and Edward W. H. Schenbey, Commissioners at Sierra
Leone, to Viscount Palmerston, 6 January 1834, in Correspondence with
the British Commissioners, at Sierra Leone, the Havana, Rio de Janeiro, and
Surinam, Relating to the Slave Trade, class A, 1, in B.P.P., vol. 14.
145. On Spain’s resistance, see the Earl of Aberdeen to Commissioners at
Havana, 24 April 1830, in Correspondence with the British Commis-
sioners, at Sierra Leone, the Havana, Rio de Janeiro, and Surinam, Relating
to the Slave Trade, class A, 91, in B.P.P., vol. 12 (reporting Spain’s refusal
of a proposed equipment clause). On the treaty revision, see George
Villiers to Viscount Palmerston, 9 September 1834, in Correspondence
with Foreign Powers, Relating to the Slave trade, class B, 11, in B.P.P., vol.
14. On the signing, George Villiers to Viscount Palmerston, 28 June
1835, in Correspondence with the Foreign Powers, Relating to the Slave
Trade, class B, 8, in B.P.P., vol. 14. On the news reaching Havana, W. S.
Macleay and Edward W. H. Schenbey, Commissioners at Havana, to
Viscount Palmerston, 10 January 1836, in Correspondence with the
British Commissioners, at Sierra Leone, the Havana, Rio de Janeiro, and
Surinam, Relating to the Slave Trade, class A, 212, in B.P.P., vol. 14.
146. Viscount Palmerston to the Baron de Moncorvo, 30 April 1836, in
Correspondence with Foreign Powers, Relating to the Slave Trade, class B,
46–54, in B.P.P., vol. 14; Viscount Palmerston to Lord Howard de
Walden, 20 April 1839, in Correspondence with Foreign Powers Relating
to the Slave Trade, class B, 71, in B.P.P., vol. 17.
147. See Bethell, Abolition of the Brazilian Slave Trade, 166–79; also see H.
W. Macaulay and R. Doherty, Commissioners at Sierra Leone, to
Viscount Palmerston, 2 September 1839, in Correspondence with the
British Commissioners Relating to the Slave Trade, 1839–40, class A,
111–12, in British Parliamentary Papers, vol. 18 (1839–40; photo. repr.,
Shannon: Irish University Press, 1968) (hereafter cited as B.P.P., vol.
18) (enclosing a “Report of the Case of the Brig Emprehendedor”);
George Jackson and Frederick Grigg, Commissioners at Rio, to
Viscount Palmerston, 23 September 1839, in Correspondence with the
British Commissioners Relating to the Slave Trade, class A, 258, in B.P.P.,
vol. 18 (enclosing a report on the case of the Maria Carlota).
148. For the suggestion about jurisdiction over slaves on land, see Lords
Report 1850, 71 (testimony of David Turnbull). For suggestions of
criminal punishment, either in national courts or in mixed courts, see,
e.g., First Commons Report, 5 (testimony of Viscount Palmerston);
ibid.,122 (testimony of John Carr, chief justice of Sierra Leone); ibid.,
34–35 (testimony of Captain Joseph Denman); ibid., 166 (testimony
of Commander Thomas Francis Birch).

N OT E S TO PA G E S 9 1 – 9 3 [ 217 ]
149. Compare W. Fergusson and M. L. Melville, Commissioners at Sierra
Leone, to Viscount Palmerston, 23 September 1841, in Correspondence
with the British Commissioners at Sierra Leone, the Havana, Rio de
Janeiro, and Surinam, Relating to the Slave Trade, class A, 31, in B.P.P.,
vol. 21 (acknowledging Palmerston’s instruction that there was no
legal authority for the detention of crews), with Geo. Frere, Jr. and
Frederic R. Surtees, Commissioners at Cape of Good Hope, to
Viscount Palmerston, 31 October 1846, in Correspondence with the
British Commissioners at Sierra Leone, Havana, Rio de Janeiro, Surinam,
Cape of Good Hope, Jamaica, Loanda, and Boa Vista, Proceedings of
British Vice-Admiralty Courts, and Reports of Naval Officers, Relating to
the Slave Trade, class A, 113, in B.P.P., vol. 34 (acknowledging the
opinion of British law officers that under Article XII of the Anglo-
Portuguese Treaty of 1842, slave crews could be detained in custody
by the mixed commission until they could be turned over to their own
governments for trial), and Ildefenso Leopoldo Bayard to Alfredo
Duprat, Portuguese Commissioner, 22 May 1847, in Correspondence
with the British Commissioners at Sierra Leone, Havana, Rio de Janeiro,
Surinam, Cape of Good Hope, Jamaica, Loanda, and Boa Vista, Proceed-
ings of British Vice-Admiralty Courts, and Reports of Naval Officers,
Relating to the Slave Trade, class A, 130, in B.P.P., vol. 34 (instructing
the Portuguese commissioner that slave crews should be sent to
Loanda or Cape Verde and “delivered to the Governor-Generals, to be
dealt with according to law”).
150. See the text accompanying notes 55–62 of this chapter for a more
thorough discussion of the rates of condemnation and acquittal in the
various courts of mixed commission.
151. Oct. Temple and H. W. Macauley, Commissioners at Sierra Leone, to
Viscount Palmerston, 30 June 1834, in Correspondence with the British
Commissioners, at Sierra Leone, the Havana, Rio de Janeiro, and Surinam,
Relating to the Slave Trade, class A, 63, in B.P.P., vol. 14.
152. H. T. Kilbee, Commissioner at Havana, to George Canning, Secretary,
31 July 1824, in Correspondence with the British Commissioners at Sierra
Leone, the Havannah, Rio de Janeiro, and Surinam, Relating to the Slave
Trade, class A, 74, in B.P.P., vol. 12.
153. George Jackson and Frederick Grigg, Commissioners at Rio, to
Viscount Palmerston, 16 January 1839, in Correspondence with the
British Commissioners at Sierra Leone, the Havana, and Rio de Janeiro,
Relating to the Slave Trade, class A, 135–36, in B.P.P., vol. 17.
154. See, e.g., First Commons Report, 161–62 (testimony of Commander
Thomas Francis Birch).

[ 218 ] NOTES TO PAGES 93–94

155. Viscount Palmerston to Commissioners at Havana, 31 July 1841, in
Correspondence with the British Commissioners at Sierra Leone, the
Havana, Rio de Janeiro, and Surinam, Relating to the Slave Trade, class A,
206, in B.P.P., vol. 21.
156. Walter W. Lewis and L. Hook, Commissioners at Sierra Leone, to
Viscount Palmerston, 10 April 1841, in Correspondence with the British
Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam,
Relating to the Slave Trade, class A, 78, in B.P.P., vol. 21.
157. George Villiers to Don Juan Alvarez y Mendizabal, 10 March 1836,
Enclosed in Mr. Villiers to Viscount Palmerston, 12 March 1836, in
Correspondence with Foreign Powers, Relating to the Slave Trade, 1836,
class B, 20–21, in B.P.P., vol. 14.
158. The Earl of Aberdeen to Commissioners at Havana, 15 December
1841, in Correspondence with the British Commissioners and with Foreign
Powers, Relating to the Slave Trade, class A, 249, in B.P.P., vol. 21.
159. See, e.g., Chris Edwd. Lefroy to the Earl of Dudley, 13 December 1827,
in Correspondence with the British Commissioners at Sierra Leone, the
Havana, Rio de Janeiro, and Surinam, Relating to the Slave Trade, class A,
172, in B.P.P., vol. 12 (discussing the lack of Dutch cruisers assigned to
suppress the slave trade in Surinam).
160. See, e.g., W. S. Macleay to the Earl of Aberdeen, 19 August 1828, in
Correspondence with the British Commissioners at Sierra Leone, the
Havana, Rio de Janeiro, and Surinam, Relative to the Slave Trade, class A,
147, in B.P.P., vol. 12 (reporting the acquittal of a slave vessel by the
Spanish Court of Admiralty in Havana).
161. See, e.g., the Earl of Aberdeen to Commissioners at Rio de Janeiro, 21
September 1841, in Correspondence with the British Commissioners and
with Foreign Powers, Relating to the Slave Trade, class A, 355–56, in
B.P.P., vol. 21 (discussing the acquittal by Brazilian criminal courts of
crew members declared by the mixed commission to have been
engaged in piracy relating to the slave trade).
162. See generally, First Commons Report.
163. See Governor Doherty to Lord John Russel, 7 December 1840, in
Correspondence Relative to Slave Trade at the Gallinas, pp. 3–4, House of
Commons Parliamentary Papers Online (2005), ProQuest (300),
http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_
dat=xri:hcpp-us&rft_dat=xri:hcpp:rec:1841-019917.
164. Buron v. Denman, (1848) 154 Eng. Rep. 450, 455–56 (Exch. Div.).
165. See First Commons Report, 32 (testimony of Captain Joseph Den-
man).
166. See Lords Report 1850, 59–60 (testimony of David Turnbull).

N OT E S TO PA G E S 9 5 – 9 7 [ 219 ]
167. See Bethell, Abolition of the Brazilian Slave Trade, 185.
168. See ibid.; also see First Commons Report, 84 (testimony of Com-
mander Henry James Matson).
169. Denman later testified that this strategy of destruction of barracoons
and close blockade of ports of embarkation would have been much
more effective than the strategy of more distant offshore cruising
pursued by the navy for many years. First Commons Report, 22
(testimony of Captain Joseph Denman). Several other naval officers
agreed. See, e.g., ibid., 154 (testimony of Commander Thomas Francis
Birch). On the other hand, some witnesses were skeptical. See Lords
Report 1849, 114–17 (testimony of Commodore Charles Hotham);
Second Commons Report, 16 (testimony of William Smith).
170. This case, Buron v. Denman, (1848) 154 Eng. Rep. 450 (Exch. Div.), is
famous in its own right in international law for establishing the “act of
state” doctrine.
171. For a list of forty treaties entered into with local chiefs, see House of
Commons, “Third Report from the Select Committee on Slave Trade,
1848,” pp. 224–25, in British Parliamentary Papers, vol. 4 (1847–48;
photo. repr., Shannon: Irish University Press, 1968).

CHAPTER 5
1. W. Fergusson and M. L. Melville, Commissioners at Sierra Leone, to
Viscount Palmerston, 20 September 1841, in Correspondence with the
British Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and
Surinam, Relating to the Slave Trade, class A, 31, in British Parliamentary
Papers, vol. 21 (1842; photo. repr., Shannon: Irish University Press,
1969) (hereafter cited as B.P.P., vol. 21).
2. First Report from the Select Committee on Slave Trade; Together with the
Minutes of Evidence, and Appendix, House of Commons, 16 (testimony of
Viscount Palmerston), in British Parliamentary Papers, vol. 4 (1847–48;
photo. repr., Shannon: Irish University Press, 1968) (hereafter cited as
First Commons Report).
3. H. S. Fox to Viscount Palmerston, 15 October 1834, in Correspondence
with Foreign Powers, Relating to the Slave Trade, class B, 34, in British
Parliamentary Papers, vol. 14 (1835–36; photo. repr., Shannon: Irish
University Press, 1968) (hereafter cited as B.P.P., vol. 14).
4. Ibid.
5. W. G. Ouseley to George Jackson and Frederick Grigg, Commissioners
at Rio, 2 July 1841, First Enclosure in George Jackson and Frederick
Grigg, Commissioners at Rio, to Viscount Palmerston, 7 July 1841, in
Correspondence with the British Commissioners at Sierra Leone, the

[ 220 ] NOTES TO PAGES 97–100

 Havana, Rio de Janeiro, and Surinam, Relating to the Slave Trade, class A,
354–55, in B.P.P., vol. 21.
6. See, e.g., Mr. Turnbull to the Earl of Aberdeen, 24 December 1841, in
Correspondence with Spain, Portugal, Brazil, et al., Relative to the Slave
Trade, class B, 85–86, in British Parliamentary Papers, vol. 23 (1843;
photo. repr., Shannon: Irish University Press, 1969) (hereafter cited as
B.P.P., vol. 23) (describing the cases of “two individual emancipados,
Gavino and Matilda, both of whom have been subjected to long
periods of uncompensated compulsory servitude”).
7. See David R. Murray, Odious Commerce: Britain, Spain and the Abolition
of the Cuban Slave Trade (Cambridge: Cambridge University Press,
1980), 134–35, 141–42.
8. Ibid., 134.
9. David Turnbull, Travels in the West. Cuba; with Notices of Porto Rico and
the Slave Trade (London: Longman, Orme, Brown, Green, and Long-
mans, 1840). See M. Ferrer to Mr. Aston, 16 February 1841, First
Enclosure in Arthur Aston to Viscount Palmerston, 23 February 1841,
in Class B. Correspondence with Spain, Portugal, Brazil, the Netherlands,
Sweden, and the Argentine Confederation, Relative to the Slave Trade.
From January 1 to December 31, 1841 Inclusive, pp. 10–12, House of
Commons Parliamentary Papers Online (2005), ProQuest (403),
http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_
dat=xri:hcpp-us&rft_dat=xri:hcpp:fulltext:1842-020663:32.
10. Report of Don Wenceslao de Villa Urrutia on the Draft Treaty Pro-
posed to Spain by Great Britain, 21 October 1841, First Enclosure in
Mr. Turnbull to the Earl of Aberdeen, 25 November 1841, in Class B.
Correspondence with Spain, Portugal, Brazil, the Netherlands, Sweden, and
the Argentine Confederation, Relative to the Slave Trade, pp. 392–93,
House of Commons Parliamentary Papers Online (2005), ProQuest
(403), http://gateway.proquest.com/openurl?url_ver=Z39.88-
2004&res_dat=xri:hcpp-us&rft_dat=xri:hcpp:fullt
ext:1842-020663:414.
11. Murray, Odious Commerce, 138.
12. Ibid., 138–39.
13. Ibid., 137.
14. Ibid., 141.
15. Ibid.
16. Ibid.
17. Ibid.
18. M. Ferrer to Mr. Aston, 16 February 1841, First Enclosure in
Arthur Aston to Viscount Palmerston, 23 February 1841, in Class B.

N OT E S TO PA G E S 1 0 0 – 1 0 2 [ 221 ]
 Correspondence with Spain, Portugal, Brazil, the Netherlands, Sweden, and
the Argentine Confederation, Relating to the Slave Trade, p. 11, House of
Commons Parliamentary Papers Online (2005), ProQuest (403),
http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_
dat=xri:hcpp-us&rft_dat=xri:hcpp:fulltext:1842-020663:33.
19. Murray, Odious Commerce, 151–52.
20. Ibid., 154–55.
21. Mr. Aston to M. de Ferrer, Madrid, 22 March 1841, Enclosure in Mr.
Aston to Viscount Palmerston, 4 April 1841, in Class B. Correspondence
with Spain, Portugal, Brazil, the Netherlands, Sweden, and the Argentine
Confederation, Relative to the Slave Trade, pp. 61–62, House of Com-
mons Parliamentary Papers Online (2005), ProQuest (403), http://
gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_
dat=xri:hcpp-us&rft_dat=xri:hcpp:fulltext:1842-020663:83.
22. Ibid., 62.
23. Ibid.
24. Ibid.
25. Ibid.
26. Certificate of the Baptism of Matilda, 29 October 1841, First Enclosure
in Mr. Turnbull to the Earl of Aberdeen, 14 December 1841, in
Correspondence with Spain, Portugal, Brazil, &c., &c., Relative to the Slave
Trade, class B, 55, in B.P.P., vol. 23.
27. Paul E. Lovejoy, “Ethnic Designations of the Slave Trade and the
Reconstruction of the History of Trans-Atlantic Slavery,” in Trans-
Atlantic Dimension of Ethnicity in the African Diaspora, ed. Paul E.
Lovejoy and David Vincent Trotman (London: Continuum, 2003),
17; Renee Soulodre-La France, “‘I, Francisco Castañeda, Negro
Esclavo Caravali,’ Caravali Ethnicity in Colonial New Granada,” in
ibid., 101.
28. List of Spanish Vessels That Have Sailed from the Port of Havana for
the Coast of Africa, Enclosure in Henry T. Kilbee and W. S. Macleay to
the Earl of Dudley, 11 February 1828, in Correspondence with the British
Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam,
Relative to the Slave Trade, class A, 116, in British Parliamentary Papers,
vol. 12 (1829–31; photo. repr., Shannon: Irish University Press, 1968)
(hereafter cited as B.P.P., vol. 12).
29. Abstract of the Evidence in the Case of the Spanish Schooner “Xerxes,”
Fifth Enclosure in W. S. Macleay, Esq. to the Earl of Dudley, 30 July
1828, in Correspondence with the British Commissioners at Sierra Leone,
the Havana, Rio de Janeiro, and Surinam, Relative to the Slave Trade, class
A, 140, in B.P.P., vol. 12.

[ 222 ] NOTES TO PAGES 102–103

30. For the crew, see Declaration of the Captor of the Spanish Schooner
“Xerxes,” Second Enclosure in W. S. Macleay, Esq. to the Earl of
Dudley, 30 July 1828, in Correspondence with the British Commissioners
at Sierra Leone, the Havana, Rio de Janeiro, and Surinam, Relative to the
Slave Trade, in class A, 139, in B.P.P., vol. 12. For the number of slaves
onboard, W. S. Macleay, Esq. to the Earl of Dudley, 11 July 1828, in
Correspondence with the British Commissioners at Sierra Leone, the
Havana, Rio de Janeiro, and Surinam, Relative to the Slave Trade, class A,
128, in B.P.P., vol. 12.
31. W. S. Macleay, Esq. to the Earl of Dudley, 30 July 1828, in Correspon-
dence with the British Commissioners at Sierra Leone, the Havana, Rio de
Janeiro, and Surinam, Relative to the Slave Trade, class A, 136, in B.P.P.,
vol. 12.
32. For the sick children, see Declaration of the Captor of the Spanish
Schooner “Xerxes,” Second Enclosure in W. S. Macleay, Esq. to the Earl
of Dudley, 30 July 1828, in Correspondence with the British Commis-
sioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam, Relative
to the Slave Trade, class A, 139, in B.P.P., vol. 12. For crew deaths, The
Captain General to the Mixed Commission, 8 July 1828, Sixth Enclo-
sure in W. S. Macleay, Esq. to the Earl of Dudley, 30 July1828, in
Correspondence with the British Commissioners at Sierra Leone, the
Havana, Rio de Janeiro, and Surinam, Relative to the Slave Trade, class A,
142, in B.P.P., vol. 12.
33. Ibid., 143.
34. W. S. Macleay, Esq. to the Earl of Dudley, 30 July 1828, in Correspon-
dence with the British Commissioners at Sierra Leone, the Havana, Rio de
Janeiro, and Surinam, Relative to the Slave Trade, class A, 136, in B.P.P.,
vol. 12.
35. W. S. Macleay, Esq. to the Earl of Dudley, 24 July 1828, in Correspon-
dence with the British Commissioners at Sierra Leone, the Havana, Rio de
Janeiro, and Surinam, Relative to the Slave Trade, class A, 129, in B.P.P.,
vol. 12.
36. Abstract of the Evidence in the Case of the Spanish Schooner “Xerxes,”
30 July 1828, Fifth Enclosure in W. S. Macleay, Esq. to the Earl of
Dudley, 30 July 1828, in Correspondence with the British Commissioners
at Sierra Leone, the Havana, Rio de Janeiro, and Surinam, Relative to the
Slave Trade, class A, 140, in B.P.P., vol. 12.
37. W. S. Macleay, Esq. to the Earl of Dudley, 30 July 1828, in Correspon-
dence with the British Commissioners at Sierra Leone, the Havana, Rio
de Janeiro, and Surinam, Relative to the Slave Trade, class A, 136, B.P.P.,
vol. 12.

N OT E S TO PA G E 1 0 4 [ 223 ]
 38. Ibid., 137–38; Abstract of the Evidence in the Case of the Spanish
Schooner “Xerxes,” 30 July 1828, Fifth Enclosure in W. S. Macleay, Esq.
to the Earl of Dudley, 30 July 1828, in Correspondence with the British
Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam,
Relative to the Slave Trade, class A, 142, in B.P.P., vol. 12.
39. The Mixed Commission to the Captain General, 14 July 1828, Seventh
Enclosure in W. S. Macleay, Esq. to the Earl of Dudley, 30 July 1828, in
Correspondence with the British Commissioners at Sierra Leone, the
Havana, Rio de Janeiro, and Surinam, Relative to the Slave Trade, class A,
143, in B.P.P., vol. 12.
40. W. S. Macleay, Esq. to the Earl of Dudley, 30 July 1828, in Correspon-
dence with the British Commissioners at Sierra Leone, the Havana, Rio de
Janeiro, and Surinam, Relative to the Slave Trade, class A, 138, in B.P.P.,
vol. 12.
41. Ibid.
42. Ibid.
43. Certificate of the Baptism of Matilda, 29 October 1841, First Enclosure
in Mr. Turnbull to the Earl of Aberdeen, 14 December 1841, in
Correspondence with Spain, Portugal, Brazil, &c., &c., Relative to the Slave
Trade, class B, 55, in B.P.P., vol. 23.
44. David Turnbull to the Earl of Aberdeen, 14 December 1841, in
Correspondence with Spain, Portugal, Brazil, &c., &c., Relative to the Slave
Trade, class B, 52, in B.P.P., vol. 23.
45. Certificate of the Baptism of Marina, 15 November 1841, Second
Enclosure in Mr. Turnbull to the Earl of Aberdeen, 14 December 1841,
in Correspondence with Spain, Portugal, Brazil, &c., &c., Relative to the
Slave Trade, class B, 56, in B.P.P., vol. 23.
46. David Turnbull to the Earl of Aberdeen, 14 December 1841, in
Correspondence with Spain, Portugal, Brazil, &c., &c., Relative to the Slave
Trade, class B, 52, in B.P.P., vol. 23.
47. Murray, Odious Commerce, 139.
48. Ibid.
49. Ibid., 55.
50. Ibid., 52.
51. David Turnbull to the Earl of Aberdeen, 14 December 1841, in
Correspondence with Spain, Portugal, Brazil, &c., &c., Relative to the Slave
Trade, class B, 52, in B.P.P., vol. 23.
52. Ibid., 53.
53. Ibid.
54. Ibid.
55. Ibid.

[ 224 ] NOTES TO PAGES 105–107

56. Ibid.
57. Ibid., 54.
58. Ibid., 55.
59. J. Kennedy and Campbell J. Dalrymple, Her Majesty’s Commissioners,
to Mr. Turnbull, 18 May 1842, Second Enclosure in J. Kennedy and
Campbell J. Dalrymple to the Earl of Alberdeen, 12 May 1842, in
Correspondence with British Commissioners Relating to the Slave Trade,
class A, 163, in B.P.P., vol. 23.
60. Ibid., 155.
61. Mr. Turnbull to Kennedy and Campbell J. Dalrymple, Her Majesty’s
Commissioners, 19 May 1842, Third Enclosure in J. Kennedy and
Campbell J. Dalrymple to the Earl of Alberdeen, 12 May 1842, in
Correspondence with British Commissioners Relating to the Slave Trade,
class A, 163, in B.P.P., vol. 23.
62. Murray, Odious Commerce, 155.
63. Ibid., 156.
64. Ibid., 159, 162.
65. Ibid., 158.
66. J. Kennedy and Campbell J. Dalrymple, Her Majesty’s Commissioners,
to the Captain-General, 22 August 1842, First Enclosure in J. Kennedy
and Campbell J. Dalrymple to the Earl of Alberdeen, 29 August 1842,
in Correspondence with British Commissioners Relating to the Slave Trade,
class A, 199, in B.P.P., vol. 23.
67. J. Kennedy and Campbell J. Dalrymple, Her Majesty’s Commissioners,
to the Earl of Aberdeen, 29 August 1842, in Correspondence with British
Commissioners Relating to the Slave Trade, class A, 198–99, in B.P.P., vol. 23.
68. Ibid.; J. Kennedy and Campbell J. Dalrymple, Her Majesty’s Commis-
sioners, to the Captain-General, 22 August 1842, in Correspondence
with British Commissioners Relating to the Slave Trade, class A, 199, in
B.P.P., vol. 23.
69. See J. Kennedy and Campbell J. Dalrymple, Commissioners at Havana,
to Viscount Palmerston, 4 December 1846, in Correspondence with
British Commissioners, class A, 61, in British Parliamentary Papers, vol.
34 (photo. repr., Shannon: Irish University Press, 1969) (1847–48)
(discussing further removal of emancipados to Jamaica); Viscount
Palmerston to Commissioners at Havana, 15 March 1841, in Corre-
spondence with the British Commissioners at Sierra Leone, the Havana, Rio
de Janeiro, and Surinam, Relating to the Slave Trade, class A, 166, in
B.P.P., vol. 21 (similar); Mr. Stephen to Viscount Canning, 25 January
1842, in Correspondence with Foreign Powers, class B, 310, in B.P.P., vol.
23 (discussing plan to remove emancipated Africans from Rio).

N OT E S TO PA G E S 1 0 7 – 1 1 0 [ 225 ]
 70. First Commons Report, 23–24 (testimony of Captain Joseph Denman).
71. W. M. Smith and H. W. Macaulay, Commissioners at Sierra Leone, to
Viscount Palmerston, 31 March 1834, in Correspondence with the British
Commissioners, Relating to the Slave Trade, class A, 32, in B.P.P., vol. 14.
72. Report of the Case of the Portuguese Barque, “Maria da Gloria,” 31
March 1834, First Enclosure in W. M. Smith and H. W. Macaulay,
Commissioners at Sierra Leone, to Viscount Palmerston, 31 March
1834, in Correspondence with the British Commissioners, Relating to the
Slave Trade, class A, 36, in B.P.P., vol. 14.
73. Ibid., 37.
74. W. M. Smith and H. W. Macaulay, Commissioners at Sierra Leone, to
Viscount Palmerston, 22 March 1834, in Correspondence with the British
Commissioners, Relating to the Slave Trade, class A, 31, in B.P.P., vol. 14.
75. George Jackson and Fred. Grigg, Commissioners at Rio, to Viscount
Palmerston, 26 December 1833, in Correspondence with the British
Commissioners, Relating to the Slave Trade, class A, 122, in B.P.P., vol. 14.
76. Report of the Case of the Portuguese Barque, “Maria da Gloria,” 31
March 1834, First Enclosure in W. M. Smith and H. W. Macaulay,
Commissioners at Sierra Leone, to Viscount Palmerston, 31 March
1834, in Correspondence with the British Commissioners, Relating to the
Slave Trade, class A, 37, in B.P.P., vol. 14.
77. Ibid.
78. W. M. Smith and H. W. Macaulay, Commissioners at Sierra Leone,
to Viscount Palmerston, 22 March 1834, in Correspondence with the
British Commissioners, Relating to the Slave Trade, class A, 31–32, in
B.P.P., vol. 14.
79. W. M. Smith and H. W. Macaulay, Commissioners at Sierra Leone, to
Viscount Palmerston, 31 March 1834, in Correspondence with the British
Commissioners, Relating to the Slave Trade, class A, 32, in B.P.P., vol. 14.
80. Ibid., 34.
81. Ibid.
82. Ibid., 35.
83. See First Commons Report, 32 (testimony of Captain Joseph Denman).
84. W. M. Smith and H. W. Macaulay, Commissioners at Sierra Leone, to
Viscount Palmerston, 9 April 1834, in Correspondence with the British
Commissioners, Relating to the Slave Trade, class A, 45–46, in B.P.P.,
vol. 14. In this case, the British commissioners sat alone, due to the
vacancy of the Portuguese seats on the commission. Viscount Palmer-
ston to Lord Howard de Walden, 7 October 1834, in Correspondence
with Foreign Powers, Relating to the Slave Trade, class B, 18, in B.P.P.,
vol. 14.

[ 226 ] NOTES TO PAGES 110–112

 85. Report of the Case of the Portuguese Barque, “Maria da Gloria,” 31
March 1834, First Enclosure in W. M. Smith and H. W. Macaulay,
Commissioners at Sierra Leone, to Viscount Palmerston, 31 March
1834, in Correspondence with the British Commissioners, Relating to the
Slave Trade, class A, 43, in B.P.P., vol. 14.
86. W. M. Smith and H. W. Macaulay, Commissioners at Sierra Leone,
to Viscount Palmerston, 9 April 1834, in Correspondence with the
British Commissioners, Relating to the Slave Trade, class A, 45–46, in
B.P.P., vol. 14.
87. See Voyages Database, Trans-Atlantic Slave Trade Database, http://
www.slavevoyages.org , s.v. “Voyage 1327, Maria da Gloria, 1833,”
accessed February 21, 2011.
88. First Commons Report, 32 (testimony of Captain Joseph Denman).

CHAPTER 6
1. Antonio Cassese, International Criminal Law (New York: Oxford
University Press, 2003), 67.
2. M. Cherif Bassiouni, Crimes Against Humanity in International Criminal
Law, 2nd rev. ed. (The Hague: Kluwer Law International, 1999), 62.
3. Ibid., 60–61.
4. See ibid., 44–60.
5. Henry Wheaton, Enquiry into the Validity of the British Claim to a Right
of Visitation and Search of American Vessels Suspected to Be Engaged in the
African Slave-Trade (Philadelphia: Lea and Blanchard, 1842), 4, 16.
6. Henry Wheaton, History of the Law of Nations in Europe and America;
from the Earliest Times to the Treaty of Washington, 1842 (New York:
Gould, Banks, 1845), 594 (emphasis added).
7. Quoted in W. E. Burghardt DuBois, The Suppression of the African
Slave-Trade to the United States of America, 1638–1870 (New York:
Longmans, Green, 1904), 110 (emphasis added).
8. Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980).
9. Theodor Meron, “Editorial Comment, Common Rights of Mankind in
Gentili, Grotius and Suarez,” American Journal of International Law 85,
no. 1 (1991): 114, quoting A. Gentili, De jure belli libri tres, vol. 2, trans.
J. C. Rolfe (Oxford: Clarendon Press, 1933), 122.
10. Gentili, De jure belli, 122.
11. Ibid., 122; Meron, “Rights of Mankind,” 114.
12. Gentili, De jure belli, 75; Meron, “Rights of Mankind,” 115.
13. Gentili, De jure belli, 74; Meron, “Rights of Mankind,” 115.
14. Gentili, De jure belli, 123; Meron, “Rights of Mankind,” 114.
15. Gentili, De jure belli, 257; Meron, “Rights of Mankind,” 116.

N OT E S TO PA G E S 1 1 2 – 1 1 8 [ 227 ]
 16. Gentili, De jure belli, 124; also see Meron, “Rights of Mankind,” 114.
17. Alfred P. Rubin, The Law of Piracy (Newport, RI: Naval War College
Press, 1988), 97, 102–3.
18. William Blackstone, Commentaries on the Laws of England, 13th ed.
(London: A Strahan, 1800), 71.
19. See Rubin, Law of Piracy, 100–105.
20. Act of Apr. 30, 1790, 1 Cong. ch. 9 s. 8; 1 Stat. 112, 113–14 (1790).
21. United States v. Palmer, 16 U.S. 610, 630–32 (U.S. 1818).
22. Ibid., 632–33.
23. See Edwin D. Dickinson, “Is the Crime of Piracy Obsolete?” Harvard
Law Review 38, no. 3 (1925): 345–46.
24. Act of Mar. 3, 1819, 15 Cong. ch. 77 s. 5; 3 Stat. 510, 513–14 (1819).
25. U.S. v. Klintock, 18 U.S. 144 (U.S. 1820).
26. Ibid., 151.
27. Ibid., 152.
28. U.S. v. Smith, 18 U.S. 153, 160–163 (U.S. 1820).
29. U.S. v. Furlong, alias Hobson, 18 U.S. 184, 193 (1820).
30. Ibid., 197.
31. Ibid., 198.
32. DuBois, Suppression of the African Slave-Trade, at 135–36, 136 n. 1.
33. 40 Annals of Cong. 928 (1823), 1155 (the resolution passed
131–9).
34. See Message from the President of the United States Transmitting the
Information Required by a Resolution of the House of Representatives,
of 27th February last, in Relation to the Suppression of the African
Slave Trade, 20 March 1824, 18th Cong., 1st Session, 119 (Washing-
ton: Gales and Seaton, 1824) (hereafter cited as Message from the
President, 20 March 1824).
35. Mr. Canning to Mr. Adams, 8 April 1823, in Message from the Presi-
dent, 20 March 1824, 11 (emphasis added).
36. Message from the President of the United States, to Both Houses
of Congress, at the Commencement of the Second Session of the
Eighteenth Congress, 7 December 1824, 18th Cong., 2nd Session
(Washington: Gales and Seaton, 1824), 5.
37. Ibid., 5 (emphasis added).
38. Mr. Adams to Mr. Canning, 24 June 1823, in Message from the
President, 20 March 1824, 17.
39. Ibid., 16–17.
40. Ibid., 19 (emphasis added).
41. Mr. Adams to Mr. Rush, 24 June 1823, in Message from the President,
20 March 1824, 25.

[ 228 ] NOTES TO PAGES 118–126

42. Ibid.
43. A Bill for the More Effectual Suppression of the African Slave Trade, 16
March 1824, House of Commons Parliamentary Papers Online
(2006), ProQuest (136), http://gateway.proquest.com/openurl?url_
ver=Z39.88-2004&res_dat=xri:hcpp-us&rft_dat=xri:hcpp:fullt
ext:1824-008845.
44. Suppression of the Slave Trade: A Convention for the Suppression of
Piracy, Committed by the African Slave Trade, art. 1, in Message from
the President, 20 March 1824, 27.
45. See Betty Fladeland, Men and Brothers: Anglo-American Antislavery
Cooperation (Urbana: University of Illinois Press, 1972), 125–44.
46. Convention Between Brazil and Great Britain for the Abolition of the
African Slave Trade, art. I, Gr. Brit.–Brazil, 23 November 1826, 76 Con-
sol. T.S. 491 (1825–26).
47. Slave Trade Treaty Between Chile and Great Britain, art. II, Gr.
Brit.–Chile, 19 January 1839, 88 Consol. T.S. 231 (1838–39).
48. Treaty Between Great Britain and Texas, for the Suppression of the
African Slave Trade, art. I, Gr. Brit.–Tex., 16 November 1840, 91
Consol. T.S. 153 (1840–41).
49. Loi sur la Répression de la Traite (Law on the Suppression of the
(Slave) Trade), art. I, Port-au-Prince, 19 November 1839, Enclosure
no. 40 in Captain Courtenay to Viscount Palmerston, 6 December
1839, in House of Commons Accounts and Papers, Class D: Correspon-
dence with Foreign Powers, Not Parties to Conventions Giving Right of
Search of Vessels Suspected of the Slave Trade, vol. 47 (London: Clowes
and Sons, 1840), 16–17.
50. Treaty Between Great Britain, Austria, France, Prussia, and Russia, for
the Suppression of the African Slave Trade, art. I, 20 December 1841,
92 Consol. T.S. 437 (1841–42).
51. Dodson to the Earl of Aberdeen, 2 July 1845, reprinted in Law Officers’
Opinions to the Foreign Office, 1793–1860, vol. 73 (1970), 527, F.O.
83.2352; see also Dodson, et al., to the Earl of Aberdeen, 30 May 1845,
reprinted in ibid., 510, F.O. 83.2352.
52. Bill Intitled “An Act to Amend an Act Intitled ‘An Act to Carry into
Execution a Convention Between His Majesty and the Emperor of
Brazil, for the Regulation and Final Abolition of the African Slave
Trade,’” reprinted in Law Officers’ Opinions to the Foreign Office, 1793–
1860, vol. 73 (1960), 367, F.O. 83.2352.
53. The Earl of Aberdeen to M. Lisboa, Foreign Office, 6 August 1845, in
British and Foreign State Papers, vol. 34 (London: Harrison and Sons,
1860), 710–11.

N OT E S TO PA G E S 1 2 6 – 1 2 8 [ 229 ]
 54. Debate before the House of Lords, 7 July 1845, reprinted in
Parliamentary Debates, Third Series , vol. 82, ed. T. C. Hansard
(1845).
55. Senhor d’Abreu to Mr. Hamilton, Rio de Janeiro, Foreign Office, 22
October 1845, Enclosure no. 1 in Mr. Hamilton to the Earl of Aber-
deen, 11 November 1845, in British and Foreign State Papers, vol. 34
(London: Harrison and Sons, 1860), 760–61.
56. Ibid., 761.
57. Ibid., 763.
58. Ibid.
59. Ibid., 766.
60. House of Commons, “First Report from the Select Committee on Slave
Trade,” in British Parliamentary Papers, vol. 4 (1847–48; photo. repr.,
Shannon: Irish University Press, 1968) (hereafter cited as First Com-
mons Report), 22.
61. Ibid., 23.
62. Ibid., 31.
63. Wheaton, Right of Visitation and Search, 16.
64. Ibid., 143.
65. Ibid., 144.
66. Ibid.
67. Henry Wheaton, Elements of International Law (Boston: Little, Brown,
1866), 199.
68. Robert Phillimore, Commentaries upon International Law, vol. 1, 2nd
ed. (Philadelphia: T. & J. W. Johnson, 1854), 246–47.
69. Ibid., 250.
70. Ibid., 253.
71. I would not have noticed these provisions of the Lieber Code but for
John Witt’s forthcoming book on the relationship between the Lieber
Code and Emancipation. See generally John Fabian Witt, “Lincoln’s
Laws of War,” Slate (February 11, 2009).
72. Instructions for the Government of Armies of the United States in the
Field, arts. 42–43 (emphases added), prepared by Francis Lieber,
LL.D., Originally Issued as General Orders No. 100, Adjutant General’s
Office, 1863, Washington 1898: Government Printing Office.
73. J. T. Abdy, ed., Kent’s Commentary on International Law (Cambridge:
Deighton, Bell, 1878), 398.
74. Theodore D. Woolsey, Introduction to the Study of International Law,
5th ed. (New York: Charles Scribner’s Sons, 1878), 379 (emphasis
added).
75. Ibid.

[ 230 ] NOTES TO PAGES 128–133

76. Theodore D. Woolsey, Introduction to the Study of International Law
(Boston: James Munroe, 1860), 316–17.
77. Executive Committee of the American Antislavery Society, Slavery and
the Internal Slave Trade in the United States of North America (photo.
repr., London: Thomas Ward, 1841), 162.
78. Thomas Jefferson, Statement to Congress, 2 December 1806, in A Com-
pilation of the Messages and Papers of the Presidents, vol. 1, ed. James D.
Richardson (New York: Bureau of National Literature, 1897), 396; see
also DuBois, Suppression of the African Slave-Trade, 80.
79. Jerome Reich, “The Slave Trade at the Congress of Vienna—a Study in
English Public Opinion,” Journal of Negro History 53, no. 2 (1968):
139–40.
80. Cambridge Dictionaries Online (Advanced Learner’s ed.), http://
dictionary.cambridge.org/dictionary/british/humanity_1, http://
dictionary.cambridge.org/dictionary/british/humanity_2, accessed
March 2, 2011.
81. Webster’s Revised Unabridged Dictionary (1828), http://machaut.
uchicago.edu/?resource=Webster%27s&word=humanity&use1828
=on, accessed March 2, 2011.
82. David Luban, “Folktales of International Justice,” Proceedings of the
Annual Meeting (American Society of International Law) 98 (2004): 183;
see also David Luban, “A Theory of Crimes Against Humanity,” Yale
Journal of International Law 29 (2004): 85.
83. Arthur Nussbaum, A Concise History of the Law of Nations (New York:
Macmillan, 1950), 18–19.
84. Lloyd Weinreb, Natural Law and Justice (Cambridge, MA: Harvard
University Press, 1987), 45; Francis Zulueta, trans., The Institutes of
Gaius (Oxford: Clarendon Press, 1946), 1:3 (“the law that natural
reason establishes among all mankind . . . is called ius gentium [law of
nations]”).
85. Weinreb, Natural Law, 45 (quoting Zulueta, The Institutes of Gaius, 1:3).
86. Francisco Suarez, Selections from Three Works of Francisco Suarez: De
legibus, ac deo legislatore (Oxford: Clarendon Press, 1944), 347 (empha-
sis added).
87. Webster’s Revised Unabridged Dictionary (1913), 712, http://machaut.
uchicago.edu/?action=search&word=humanitarian&resource=Webste
r%27s&quicksearch=on, accessed March 2, 2011.
88. Cambridge Dictionaries Online (Advanced Learner’s ed.), http://
dictionary.cambridge.org/dictionary/british/humanitarian, accessed
March 2, 2011.
89. Ibid.

N OT E S TO PA G E S 1 3 4 – 1 3 7 [ 231 ]
 90. See, e.g., Theodor Meron, “The Humanization of Humanitarian Law,”
American Journal of International Law 94, no. 2 (2000): 242–43.
91. Hague Convention (II) with Respect to the Laws and Customs of War
on Land, pmbl., 29 July 1899, 187 Consol. T.S. 429.
92. See, e.g., Bassiouni, Crimes Against Humanity, 61–62.
93. First Commons Report, 19 (testimony of Viscount Palmerston).
94. Ibid.
95. Ibid.

CHAPTER 7
1. See Lord Howard de Walden to Viscount Palmerston, 28 April 1839, in
British and Foreign State Papers, vol. 27 (London: Harrison and Sons,
1856), 588 (enclosing list of twenty-five pieces of correspondence
between Britain and Portugal between 1837 and 1839 on negotiations
for a new treaty).
2. Viscount Palmerston to Lord Howard de Walden, 27 April 1839, in
Correspondence with Foreign Powers, class B, 91–100, in British Parlia-
mentary Papers, vol. 17 (1839; photo. repr., Shannon: Irish University
Press, 1968) (hereafter cited as B.P.P., vol. 17).
3. Draft of a Note to Be Presented by Lord Howard de Walden to the
Portuguese Government, Enclosure in Viscount Palmerston to Lord
Howard de Walden, 20 April 1839, in Correspondence with Foreign
Powers, class B, 71, 78, in B.P.P., vol. 17; see also Howard Hazen Wilson,
“Some Principal Aspects of British Efforts to Crush the African Slave
Trade, 1807–1929,” American Journal of International Law 44 (1950):
513.
4. Leslie Bethell, The Abolition of the Brazilian Slave Trade (Cambridge:
Cambridge University Press, 1970), 155.
5. Ibid.
6. Palmerston’s Act, 1839, 2 & 3 Vict., c. 73 (Eng.).
7. Bethell, Abolition of the Brazilian Slave Trade, 161.
8. Ibid., 162–63.
9. Ibid., 164–65.
10. For examples of ships condemned as Spanish, see, e.g., H. W. Macauley
and R. Doherty, Commissioners at Sierra Leone, to Viscount Palmer-
ston, 22 December 1838, in Correspondence with British Commissioners,
1838–39, class A, 26, in B.P.P., vol. 17 (noting, “Of illegal equipment for
the Slave Trade there could be no doubt: but this fact could only avail
in the case of a Spanish vessel” and reporting that the commission
found the Sirse to be Spanish based on its course of trade, notwith-
standing its Portuguese flag and papers); M. L. Melville, Commissioner

[ 232 ] NOTES TO PAGES 137–142

 at Sierra Leone, to the Earl of Aberdeen, 31 December 1841, in
Correspondence with British Commissioners, 1842, class A, 29–32, in
British Parliamentary Papers, vol. 23 (1842; photo. repr., Shannon: Irish
University Press, 1968) (hereafter cited as B.P.P., vol. 23) (reporting the
cases of the Recurso, San Paulo de Loando, Boa Uniao, Josephina, Erculos,
and Paz, all of which bore a Portuguese flag and papers but were found
to be Spanish and condemned); M. L. Melville, Commissioner at
Sierra Leone, to the Earl of Aberdeen, 31 December 1841, in Corre-
spondence with British Commissioners, 1842, class A, 60–61, in B.P.P.,
vol. 23 (reporting the case of the Bellona, condemned and found to be
Brazilian despite its Portuguese flag).
11. See Treaty Between Great Britain and Portugal, for the Suppression of
the Traffic in Slaves, art. 5, 30 July 1842, 30 B.S.P. 257.
12. See George Frere, Jr., and Frederic R. Surtees, Commissioners at Cape
of Good Hope, to Viscount Palmerston, 31 October 1846, in Corre-
spondence with the British Commissioners at Sierra Leone, Havana, Rio de
Janeiro, Surinam, Cape of Good Hope, Jamaica, Loanda, and Boa Vista,
Proceedings of British Vice-Admiralty Courts, and Reports of Naval
Officers, Relating to the Slave Trade, class A, 113, in British Parliamentary
Papers, vol. 34 (1847–48; photo. repr., Shannon: Irish University Press,
1969) (hereafter cited as B.P.P., vol. 34); Senhor Bayard to Alfredo
Duprat, Portuguese Commissioner, 22 May 1847, Enclosure in George
Frere, Jr., and Frederic R. Surtees, Commissioners at Cape of Good
Hope, to Viscount Palmerston, 11 November 1847, in Correspondence
with the British Commissioners at Sierra Leone, Havana, Rio de Janeiro,
Surinam, Cape of Good Hope, Jamaica, Loanda, and Boa Vista, Proceed-
ings of British Vice-Admiralty Courts, and Reports of Naval Officers,
Relating to the Slave Trade, class A, 130, in B.P.P., vol. 34.
13. George Jackson and Edmund Gabriel, Commissioners at Loanda, to
Viscount Palmerston, 30 April 1847, in Correspondence with the British
Commissioners at Sierra Leone, Havana, Rio de Janeiro, Surinam, Cape of
Good Hope, Jamaica, Loanda, and Boa Vista, Proceedings of British
Vice-Admiralty Courts, and Reports of Naval Officers, Relating to the Slave
Trade, class A, 169, in B.P.P., vol. 34 (noting the Portuguese prosecu-
tor’s appeal of an acquittal to Lisbon and stating that “it furnishes proof
of the sincerity of the authorities at Lisbon, and consequently holds out
some hope that the impunity on which slave-traffickers have hitherto
confidently reckoned when brought before the ordinary tribunals, may
no longer attend them”).
14. See George Jackson and Edmund Gabriel, Commissioners at Loanda,
to Viscount Palmerston, 6 February 1847, in Correspondence with the

N OT E S TO PA G E 1 4 2 [ 233 ]
 British Commissioners at Sierra Leone, Havana, Rio de Janeiro, Surinam,
Cape of Good Hope, Jamaica, Loanda, and Boa Vista, Proceedings of
British Vice-Admiralty Courts, and Reports of Naval Officers, Relating to
the Slave Trade, class A, 147, in B.P.P., vol. 34 (describing the case of the
Flor de Campos, taken by the Portuguese brigantine Tamega, and
referring to the Lisbon Decree of 10 September 1846, which directed
that “the same system should be followed with respect to vessels
condemned by the Prize Court” as those in the mixed commissions).
15. First Report from the Select Committee on Slave Trade; Together with the
Minutes of Evidence, and Appendix, House of Commons, 21 (testimony of
Captain Joseph Denman), in British Parliamentary Papers, vol. 4
(1847–48; photo. repr., Shannon: Irish University Press, 1968)
(hereafter cited as First Commons Report); see also Report from the
Select Committee of the House of Lords, Appointed to Consider the Best
Means Which Great Britain Can Adopt for the Final Extinction of the
African Slave Trade, 1849, 123 (testimony of Commodore Charles
Hotham), in British Parliamentary Papers, vol. 6 (1850; photo. repr.,
Shannon: Irish University Press, 1968).
16. See figure 4.3.
17. The Additional Convention to the Treaty of 22 January 1815 Between
His Britannic Majesty and His Most Faithful Majesty, for the Purpose
of Preventing Their Subjects from Engaging in Any Illicit Traffic in
Slaves, art. VIII, Gr. Brit.–Port., 28 July 1817, in British and Foreign
State Papers, vol. 4 (London: James Ridgway and Sons, 1838) (hereaf-
ter cited as B.S.P., vol. 4), 85, which was incorporated by the Conven-
tion Between Great Britain and Brazil, for the Abolition of the African
Slave Trade, Gr. Brit.–Brazil, 23 November 1826, in British and Foreign
State Papers, vol. 14 (London: Harrison and Sons, 1854) (hereafter
cited as B.S.P., vol. 14), 609, only authorized the mixed courts for a
period of fifteen years after abolition; since the Brazilian slave trade had
been outlawed in 1830, the fifteen years expired in 1845. See Separate
Article to Additional Convention Between Great Britain and Portugal,
for the Prevention of Slave Trade, Gr. Brit.–Port., 11 September 1817,
B.S.P., vol. 4, 115 (providing a fifteen-year expiration period after
complete abolition of the trade).
18. See Bethell, Abolition of the Brazilian Slave Trade, 247–53.
19. Convention Between Great Britain and Brazil, for the Abolition of
the African Slave Trade, art. 1, 23 November 1826, Gr. Brit.–Brazil,
B.S.P., vol. 14, 610; Wilson, “Some Principal Aspects of British
Efforts,” 518.
20. See figure 4.3.

[ 234 ] NOTES TO PAGES 142–143

21. Third Report from the Select Committee on Slave Trade, House of Com-
mons, 1848, 226–29, in British Parliamentary Papers, vol. 4 (1847–48;
photo. repr., Shannon: Irish University Press, 1968) (hereafter cited as
B.P.P., vol. 4).
22. Second Report from the Select Committee on Slave Trade, 1848, 37
(testimony of Jose E. Cliffe, MD), in B.P.P., vol. 4 (hereafter cited as
Second Commons Report).
23. See Bethell, Abolition of the Brazilian Slave Trade, 281.
24. See, e.g., Report from the Select Committee of the House of Lords,
Appointed to Consider the Best Means Which Great Britain Can Adopt for
the Final Extinction of the African Slave Trade, 1850, 225 (testimony of
Robert Hesketh), in British Parliamentary Papers, vol. 6 (1850; photo.
repr., Shannon: Irish University Press, 1968).
25. Bethell, Abolition of the Brazilian Slave Trade, 325–41; Christopher
Lloyd, The Navy and the Slave Trade (London: Thomas Nelson, 1968),
142–47.
26. Bethell, Abolition of the Brazilian Slave Trade, 313–15.
27. David Eltis, “The Nineteenth-Century Transatlantic Slave Trade: An
Annual Time Series of Imports into the Americas Broken Down by
Region,” Hispanic American Historical Review 67, no. 1 (1987): 114–15
table I.
28. Warren S. Howard, American Slavers and the Federal Law, 1837–1862
(Berkeley: University of California Press, 1963), 47.
29. Ibid. The data on estimated slave imports to Cuba and Brazil are drawn
from Eltis, “The Nineteenth-Century Transatlantic Slave Trade,”
114–15 table I, 122–23 table II. It includes not only known slave
trading voyages, but also imputed imports based on population and
census figures.
30. David Eltis, Economic Growth and the Ending of the Transatlantic Slave
Trade (Oxford: Oxford University Press, 1987), 200.
31. See N. W. Macdonald and John Carr, Commissioners at Sierra Leone,
to Viscount Palmerston, 12 December 1846, in Correspondence with the
British Commissioners at Sierra Leone, Havana, Rio de Janeiro, Surinam,
Cape of Good Hope, Jamaica, Loanda, and Boa Vista, Proceedings of
British Vice-Admiralty Courts, and Reports of Naval Officers, Relating to
the Slave Trade, class A, 37, in B.P.P., vol. 34.
32. Ibid.
33. See J. Kennedy and Campbell J. Dalrymple, Commissioners at Havana,
to Viscount Palmerston, 7 January 1847, in Correspondence with the
British Commissioners at Sierra Leone, Havana, Rio de Janeiro, Surinam,
Cape of Good Hope, Jamaica, Loanda, and Boa Vista, Proceedings of

N OT E S TO PA G E S 1 4 3 – 1 4 4 [ 235 ]
 British Vice-Admiralty Courts, and Reports of Naval Officers, Relating to
the Slave Trade, class A, 69, in B.P.P., vol. 34 (noting that no slave vessels
arrived or departed from Cuba).
34. See First Commons Report, 5 (testimony of Viscount Palmerston).
35. Eltis, Economic Growth, 201.
36. Ibid., 202.
37. Harral E. Landry, “Slavery and the Slave Trade in Atlantic Diplomacy,
1850–1861,” Journal of Southern History 27 (1961): 184.
38. Ibid., 196, 201–3.
39. Constitution of the Confederate States of America, art. I, § 9, cl. 1
(1861).
40. President James Buchanan, Speech to the Senate and House of Repre-
sentatives, 19 May 1860, in A Compilation of Messages and Papers of the
Presidents: 1789–1897, vol. 5, ed. James D. Richardson (Washington,
DC: Government Printing Office, 1898), 593, 595.
41. A. Taylor Milne, “The Lyon-Seward Treaty of 1862,” American Histor-
ical Review 38, no. 3 (1933): 511–14.
42. Eltis, Economic Growth, 218–22.
43. Milne, “The Lyon-Seward Treaty,” 514 (quoting Russell to Lyons, 26
April and 2 May 1862, Russell MSS; London Times, May 24, 1862;
Hansard Parliamentary Debates, 3rd series (1862), cols. 1957–59,
2179–81).

CHAPTER 8
1. See e.g., Louis Henkin, The Age of Rights (New York: Columbia
University Press, 1990), 1 (“The contemporary idea of human rights
was formulated and given content during the Second World War and
its aftermath”).
2. See Antonio Cassese, International Law, 2nd ed. (London: Oxford
University Press, 2003), 281–82; Eric A. Posner and John C. Yoo,
“Judicial Independence in International Tribunals,” California Law
Review 93, no. 1 (2005): 1, 9 (describing the Permanent Court of
Arbitration in 1899 as one of “the first tentative steps towards the ideal
of formal international adjudication”).
3. See Cassese, International Law, 454.
4. Jan Herman Burgers, “The Road to San Francisco: The Revival of
the Human Rights Idea in the Twentieth Century,” Human Rights
Quarterly 14 (1992): 447–48. For examples of this approach, see
Lynn Hunt, Inventing Human Rights (New York: W. W. Norton,
2007), 181–82, 196, 201–3 (arguing that nationalism, socialism, and
communism led to the declining popularity of human rights until the

[ 236 ] NOTES TO PAGES 144–149

 aftermath of World War II); and Jack Mahoney, The Challenge of
Human Rights: Origin, Development, and Significance (Malden, MA:
Blackwell, 2007), 21–37, 42 (skipping from early nineteenth-century
philosophers to the aftermath of World War II, with a brief mention of
Karl Marx’s criticism of rights as a reason for the “eclipse” of the
appeal of human rights as a political concept in the late nineteenth
and early twentieth centuries).
5. Burgers, “The Road to San Francisco,” 448.
6. See Hunt, Inventing Human Rights, 176 (“The long gap in the
history of human rights, from their initial formulation in the
American and French Revolutions to the United Nations’ Universal
Declaration in 1948, has to give anyone pause. Rights did not
disappear in either thought or action, but the discussions and
decrees now transpired almost exclusively within specific national
frameworks”).
7. Burgers, “The Road to San Francisco,” 449–64 (discussing NGOs’
advocacy of international human rights standards as well as the League
of Nations’ treatment of human rights issues in the 1920s and 1930s).
Historian Paul Gordon Lauren’s book, The Evolution of International
Human Rights: Visions Seen (Philadelphia: University of Pennsylvania
Press, 1998), is a magisterial overview of protection of human rights
around the world that includes much pre–World War II history, but his
book is not a legal history and does not specifically trace the intellec-
tual and social origins of the use of international law as a mechanism
for protecting human rights.
8. Inter-American Commission on Human Rights, “The Situation of
the Rights of Women in Ciudad Juárez, Mexico: The Right to Be Free
from Violence and Discrimination,” OEA/Ser.L/V/II.117, Doc. 44,
March 7, 2003, http://www.cidh.oas.org/annualrep/2002eng/chap.
vi.juarez.htm.
9. Lawrence Douglas, The Memory of Judgment: Making Law and History
in the Trials of the Holocaust (New Haven: Yale University Press, 2001),
16–17.
10. Jean-Marie Kamatali, “From the ICTR to ICC: Learning from the
ICTR Experience in Bringing Justice to Rwandans,” New England
Journal of International and Comparative Law 12 (2005): 96.
11. See Clark M. Eichelberger, Organizing for Peace: A Personal History of
the United States (New York: Harper and Row, 1977), 268–72.
12. See Carol Anderson, Eyes Off the Prize: The United Nations and the
African American Struggle for Human Rights, 1944–1955 (Cambridge:
Cambridge University Press, 2003), 38–43.

N OT E S TO PA G E S 1 4 9 – 1 5 2 [ 237 ]
 13. See W. E. Burghardt DuBois, The Suppression of the African Slave-Trade
to the United States of America, 1638–1870 (New York: Longmans,
Green, 1896).
14. For example, another NGO represented at the UN Convention was
the National League of Women Voters. See Dorothy B. Robins, Exper-
iment in Democracy: The Story of U.S. Citizen Organizations in Forging
the Charter of the United Nations (New York: Parkside Press, 1971),
209. The National League of Women Voters was the offspring of the
National American Woman Suffrage Organization; see League of
Women Voters, “About Us: Our History,” accessed February 28, 2011,
http://www.lwv.org/AM/Template.cfm?Section=Our_
History&Template=/TaggedPage/TaggedPageDisplay.
cfm&TPLID=36&ContentID=1501, which was in turn a product of
the merger of earlier women’s suffrage organizations that had close
ties to abolitionist organizations. See Judith Resnik, “Sisterhood,
Slavery, and Sovereignty: Transnational Antislavery Work and
Women’s Rights Movements in the United States During the Twenti-
eth Century,” in Women’s Rights and Transatlantic Antislavery in the
Era of Emancipation, ed. Kathryn Kish Sklar and James Brewer
Stewart (New Haven: Yale University Press, 2007), 19, 22.
15. John Bassett Moore, International Adjudications Ancient and Modern:
History and Documents, vol. 1 (New York: Oxford University Press,
1929), lxxxi.
16. Manley O. Hudson, International Tribunals: Past and Future (Washing-
ton, DC: Carnegie Endowment for International Peace and Brookings
Institution, 1944).
17. George A. Finch and Harold G. Moulton, foreword to Hudson,
International Tribunals, v.
18. Hudson, International Tribunals, 5.
19. Ibid., 23.
20. Ibid., 181.
21. Ibid.
22. Ibid., 183.
23. Ibid.
24. Ibid., 186.
25. N. Politis, “Y a-t-il lieu d’instituer une juridiction criminelle internatio-
nale?” Actes du Premier Congrès International de Droit Pénal 1926
(Paris 1927).
26. See John W. Bridge, “The Case for an International Court of Criminal
Justice and the Formulation of International Criminal Law,” Interna-
tional and Comparative Law Quarterly 13 (1964): 1260–61.

[ 238 ] NOTES TO PAGES 152–154

 27. Hersch Lauterpacht, “The Law of Nations, the Law of Nature and the
Rights of Man,” Transactions of the Grotius Society 29 (1942): 1–33.
28. Ibid., 1.
29. Charter of the International Military Tribunal, in Agreement for the
Prosecution and Punishment of the Major War Criminals of the
European Axis Powers, 8 August 1945, 82 U.N.T.S. 280, 59 Stat. 1544.
30. Antonio Sanchez de Bustamante, The World Court, trans. Elizabeth F.
Read (New York: American Foundation, 1925), 187–88.
31. George Weis, “International Criminal Justice in Time of Peace,”
Transactions of the Grotius Society 28 (1942); see also Manley O.
Hudson, Editorial Comments, “The Proposed International Criminal
Court,” American Journal of International Law 32, no. 3 (1938): 549.
32. Vespasian V. Pella, “Towards an International Criminal Court,” Ameri-
can Journal of International Law 44, no. 1 (1950): 54.
33. Ibid.
34. Ibid.
35. Ibid.
36. Quincy Wright, “Proposal for an International Criminal Court,”
American Journal of International Law 46 (1952): 71. See also T. B.
Murray, “The Present Position of International Criminal Justice,”
Transactions of the Grotius Society 36 (1950): 200–201.

CHAPTER 9
1. WorldPublicOpinion.Org , World Public Opinion and the Universal
Declaration of Human Rights (2008), 11, http://www.worldpublicopi-
ion.org/pipa/pdf/dec08/WPO_UDHR_Dec08_rpt.pdf.
2. President George W. Bush, Proclamation, “Human Rights Day, Bill
of Rights Day, and Human Rights Week, 2003, Proclamation 7744,”
Federal Register 68, no. 240 (December 10, 2003): 69,939, http://
edocket.access.gpo.gov/cfr_2004/janqtr/pdf/3CFR7745.pdf; also
see President George W. Bush, Proclamation, “Human Rights Day,
Bill of Rights Day, and Human Rights Week, 2004, Proclamation
7854,” Federal Register 69, no. 240 (December 10, 2004): 74,947,
http://georgewbush-whitehouse.archives.gov/news/
releases/2004/12/20041210-17.html.
3. Glenn Beck, “Obama Wants THIS Guy?” Glennbeck.com,
March 30, 2009, http://www.glennbeck.com/content/articles/
article/198/23372/.
4. Sonia Harris-Short, “International Human Rights Law: Imperialist,
Inept and Ineffective? Cultural Relativism and the UN Convention on
the Rights of the Child,” Human Rights Quarterly 25, no. 1 (2003):

N OT E S TO PA G E S 1 5 5 – 1 5 9 [ 239 ]
 130–81. This article does not argue that human rights law is, in fact,
imperialist, inept, and ineffective, but its title reflects a common
critique.
5. Eric Posner, “Think Again: International Law,” Foreign Policy
Online, September 17, 2009, http://www.foreignpolicy.com/
articles/2009/09/17/think_again_international_law?page=0,1.
6. David Kennedy, “The International Human Rights Movement: Part of
the Problem?” Harvard Human Rights Journal 15 (2002): 101–25.
7. Sosa v. Alvarez-Machain, 542 U.S. 692, 749–50 (U.S. 2004) (Scalia, J.,
concurring) (emphasis in original).
8. See, e.g., Eric A. Posner and John C. Yoo, “Judicial Independence in
International Tribunals,” California Law Review 93, no. 1 (2005): 69
(arguing that prosecutions “will inevitably raise questions about the
legality of a decision by a state to use force and the legality of the tactics
used by a state”).
9. Although there was some initial suggestion that the ICC should have
jurisdiction over terrorism, this suggestion was discarded. See Richard
J. Goldstone and Janine Simpson, “Evaluating the Role of the Interna-
tional Criminal Court as a Legal Response to Terrorism,” Harvard
Human Rights Journal 16 (2003): 13–15.
10. See Philip Alston, “The ‘Not-a-Cat’ Syndrome: Can the International
Human Rights Regime Accommodate Non-State Actors?” in Non-State
Actors and Human Rights, ed. Philip Alston (New York: Oxford
University Press, 2005), 3, 6.
11. See Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010).
12. See, e.g., Hugh Thomas, The Slave Trade (New York: Simon and
Schuster 1997), 196–209.
13. Her Majesty’s Judge to Viscount Palmerston, Sierra Leone, May 30,
1838, in Class A. Correspondence with the British commissioners. At Sierra
Leone, the Havana, Rio de Janeiro, and Surinam. Relating to the slave
trade. From May 1st, 1838, to Feburary 2nd, 1839, inclusive, at pp. 43, 44
(describing structure of joint stock company that owned slave vessel
Veloz), House of Commons Parliamentary Papers Online (2005),
ProQuest, http://gateway.proquest.com/openurl?url_ver=Z39.88-
2004&res_dat=xri:hcpp-us&rft_dat=xri:hcpp:fullt
ext:1839-018670:54.
14. The African Company of Merchants, for example, clearly believed it
had an obligation not only not to participate in the slave trade after abo-
lition but also to try to suppress the slave trade in the areas of the Gold
Coast under its control. See Letter from Mr. Simon Cock, Secretary to
the African Company, to the Right Honourable C. Arbuthnot, dated

[ 240 ] NOTES TO PAGES 159–164

10th June 1815, in Papers Relating to the African Company, 20 June 1815,
at p. 3 (noting that “since the abolition of the Slave Trade” the African
Company of Merchants’ “directions have, upon every occasion, been
calculated, according to the best of their judgment, to abolish the Slave
Trade and to introduce legitimate commerce”), House of Commons
Parliamentary Papers Online (2005), ProQuest, http://gateway.
proquest.com/openurl?url_ver=Z39.88-2004&res_dat=xri:hcpp-
us&rft_dat=xri:hcpp:rec:1814-004041; Report from the Select Com-
mittee on Papers Relating to the African Forts, at p.44 (“What orders then
were given by the African Committee [of the Company of Merchants]
to their servants on the Coast, respecting their conduct since the
abolition of the Slave Trade? – The orders given were, to use their
utmost power to prevent any Slave Trade being carried on in and near
their Settlements.”), House of Commons Parliamentary Papers Online
(2005), ProQuest, http://gateway.proquest.com/openurl?url_
ver=Z39.88-2004&res_dat=xri:hcpp-us&rft_dat=xri:hcpp:fullt
ext:1816-004433:44; Ty M. Reese “‘Eating’ Luxury: Fante Middlemen,
British Goods, and the Changing Dependencies on the Gold Coast,
1750-1821,” William and Mary Quarterly, vol. LXVI, No. 4, at 867
(October 2009) (“Parliament forbade the new company [the Company
of Merchants Trading to Africa, established in 1751], unlike its
monopolistic predecessor, from trading in slaves, though its servants
could trade in slaves as private individuals”). Although the Company of
Merchants was an unusual entity in certain respects, there is no
indication whatsoever in the records relating to it that it or other
companies were viewed as immune from the slave trade ban. Indeed,
one act of the British parliament related to the slave trade took care to
exempt from its penalties the transfer of shares in joint stock companies
that lawfully owned slaves before the act was passed; by implication,
the actions of joint stock companies were otherwise covered by the
ban, and liability could even be impossed on shareholders (which is
hardly surprising, since corporations did not generally enjoy limited
liability until the Limited Liability Act of 1855). See An Act for the
more effectual Suppression of the Slave Trade, sect. VI, 6 & 7 Vict. c. 98
(24 August 1843) (“Provided always, and be it enacted, That nothing
in this Act contained shall be taken to subject to any Forfeiture,
Punishment, or Penalty any Person for transferring or receiving any
Share in any Joint Stock Company established before the passing of this
Act in respect of any Slave or Slaves in the Possession of such Company
before such Time. . . .”). Although this was a domestic statute, it
purported to expand upon the earlier Act to amend and consolidate the

N OT E S TO PA G E 1 6 4 [ 241 ]
 Laws relating to the Abolition of the Slave Trade, 5 Geo. IV c. 113 (24
June 1824), which in turn was expressly designed in part to implement
the anti–slave trade treaties.
15. See Elisabeth Bumiller, “Evangelicals Sway White House on Human
Rights Issues Abroad,” New York Times, October 26, 2003, A1.
16. See Louis Henkin, Gerald L. Neuman, Diane F. Orentlicher, and David
W. Leebron, Human Rights (New York: Foundation Press, 1999), 73
(stating, “Until the late 1930’s, the international political system, and
international law, continued to maintain that how a state treated its own
inhabitants was not a matter of legitimate international concern” and
describing the Nuremberg Charter’s inclusion of “crimes against
humanity” as “the first formal assertion of an international law of
human rights”).
17. See, e.g., Peter Singer, “What Should a Billionaire Give—and What
Should You?” New York Times (Magazine), December 17, 2006, 60;
Noah Feldman, “Cosmopolitan Law?” Yale Law Journal 116 (2007):
1022 (discussing contemporary debates over moral, ethical, and legal
duties owed “to citizens of other countries who live far away and whose
lives barely interact with ours”).
18. United Nations, The Millennium Development Goals Report 2006 (New
York: United Nations, 2006), 4, http://mdgs.un.org/unsd/mdg/
Resources/Static/Products/Progress2006/​MDGR
eport2006.pdf.
19. Ibid., 5.
20. Ibid., 14.
21. Ibid., 11.
22. Andrew T. Guzman, “A Compliance-Based Theory of International
Law,” California Law Review 90, no. 6 (2002): 1823; Posner and Yoo,
“Judicial Independence,” 14.
23. Ironically, a similar point was made by Commander Henry Matson of
the HMS Waterwitch in his testimony before the British Parliament in
1848. Matson explained that the local chiefs in Africa had entered into
antislavery treaties with the British in 1841 and 1842 because they had
abandoned hope of being able to carry on the trade when the barra-
coons were destroyed by British warships. “Then of what value is the
treaty itself?” a puzzled member of Parliament (clearly taking the realist
view) asked Matson. “Because you can enforce it,” Matson answered.
House of Commons, “First Report from the Select Committee on Slave
Trade,” in British Parliamentary Papers, vol. 4 (1847–48; photo. repr.,
Shannon: Irish University Press, 1968) (hereinafter referred to as First
Commons Report), 85 (testimony of Commander Henry Matson).

[ 242 ] NOTES TO PAGES 164–167

24. See generally John Hagan, Justice in the Balkans: Prosecuting War Crimes
in the Hague Tribunal (Chicago: University of Chicago Press, 2003).
25. For example, Kaufmann and Pape suggest that the British antislavery
story does not support constructivist theories of international relations
because British abolitionism was mainly a product of domestic reli-
gious and social movements, not of the influence of cosmopolitan
networks. See Chaim D. Kaufmann and Robert A. Pape, “Explaining
Costly International Moral Action: Britain’s Sixty-Year Campaign
Against the Atlantic Slave Trade,” International Organization 53 (1999):
631. But they do not consider how it happened that the policy of
abolition was eventually adopted by other countries and whether
transnational networks or international law played any role in that
spread.
26. First Commons Report, 20 (testimony of Viscount Palmerston).
27. Treaty Between Great Britain and Spain for the Abolition of the Slave
Trade, preamble, Gr. Brit.–Spain, 23 September 1817, 68 Consol. T.S.
45 (1817–18).
28. Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, NJ:
Princeton University Press, 1999), 108.
29. See, e.g., Jack L. Goldsmith and Eric A. Posner, The Limits of Interna-
tional Law (New York: Oxford University Press, 2005), 114–17
(discussing the abolition of slavery, though not the antislavery courts,
from a rational-choice perspective).
30. See Posner and Yoo, “Judicial Independence,” 14–18 (arguing that
international adjudication is possible when “states have a surplus to
divide,” when “the present value of the payoffs from continued cooper-
ation exceeds the short-term gains from cheating,” and when “states
have imperfect information about whether an action is consistent with
a treaty, and the tribunal can help bring that information to light”). Pos-
ner and Yoo argue that courts with “dependent” judges are more likely
to be successful than those with “independent” judges. The fact that the
judges on the mixed courts were not independent of their governments
might initially seem to support Posner and Yoo’s argument, but in fact
the mixed courts do not fit neatly into the category of dependent
tribunals based on the criteria that Posner and Yoo propose. The
antislavery courts were permanent, rather than created for the duration
of a dispute; states consented to them before particular disputes arose;
the power to initiate cases rested with individual naval officers seeking
prize money; and each court was bilateral, but the network of treaties
was multilateral. See ibid., 26 and table 1. The mixed courts also do not
fit neatly into the framework for international judicial effectiveness

N OT E S TO PA G E S 1 6 7 – 1 6 9 [ 243 ]
 proposed by Anne-Marie Slaughter and Laurence Helfer. See Laurence
R. Helfer and Anne-Marie Slaughter, “Why States Create International
Tribunals: A Response to Professors Posner and Yoo,” California Law
Review 93, no. 3 (2005): 899. They were not deeply embedded in
national legal systems, like the modern European supranational courts,
though there were some connections in both personnel and jurispru-
dence between the mixed courts and the British vice-admiralty courts.
See ibid., 908. They did not exactly allow access by private citizens
without the support of a government, but they did create incentives for
individual naval captains to initiate cases. See ibid. In many respects,
however, they do support Slaughter and Helfer’s more general argu-
ments about “constrained independence” of international tribunals. As
in the modern courts Slaughter and Helfer examine, there were both
political and structural constraints on the mixed courts’ actions, such as
relatively clear treaty provisions about what was prohibited. See ibid.,
945–46. Moreover, the discursive constraints of legal analysis appear to
have been real, as demonstrated by the cases like the Maria da Gloria,
in which British judges voted for acquittal, or in which non-British
judges easily voted for condemnation.
31. See Guzman, “Compliance-Based Theory,” 1823 (discussing a theory
of international law that “explains compliance using a model of rational,
self-interested states”).
32. For a summary of the various schools and subschools of international
relations theory, particularly as applied by international lawyers, see
Oona A. Hathaway, “Between Power and Principle: An Integrated
Theory of International Law,” University of Chicago Law Review 72
(2005): 469, 476–86.
33. Peter J. Katzenstein and Nobuo Okawara, “Japan, Asian-Pacific
Security, and the Case for Analytical Eclecticism,” International Security
26 (2001): 153–54 (arguing “against the privileging of parsimony that
has become the hallmark of paradigmatic debates” and noting the
advantages of “drawing selectively on different [theoretical] para-
digms”).
34. Leslie Bethell, The Abolition of the Brazilian Slave Trade (Cambridge:
Cambridge University Press, 1970), 12.
35. Jean-Jacques Rousseau, The Social Contract, ed. Susan Dunn (New
Haven, CT: Yale University Press, 2002), 156.

[ 244 ] NOTES TO PAGES 169–171

INDEX

Abdy, J. T., 133 Kenya, 158

Aberdeen (earl of), 78, 97, 109, 128 Nigeria, 7, 10, 103
Aberdeen’s Act, 128–29, 143 Rwanda, 151, 163
Abolition Act, 24 Sierra Leone, 3, 5–6, 8, 27, 34, 69, 79, 92,
abolitionists, 20–23, 29, 96, 146, 154, 168 99–100
Anti-Slavery Convention, 101 slave trade of, 57
early, 40 South Africa, 135
ideology, 168 African Company of Merchants,
movements, 24, 162 240n14
Napoleonic Wars and, 166 AIDS, 164–65
societies, 41 Aix-la-Chapelle, 45, 50
writings of, 57, 134 Congress of, 44, 124
Abreu, Francisco, 106, 107, 108 Alexander I (czar), 32
Act for the Abolition of the Slave Trade, 23 Alien Tort Statute, 116, 159
An Act in Addition to the Acts Prohibiting Alligator, USS, 54
the Slave Trade, 49 Alston, Philip, 163
activism, 163 ambassadors, rights of, 133
act of state doctrine, 220n170 Amedie (ship), 25
An Act to Protect the Commerce of the American Civil War, 132, 137, 145–46
United States and Punish the Crime of American Revolutionary War, 6, 34, 39, 45,
Piracy, 49–50, 121 48, 149, 160
Adams, Abigail, 48 Amistad (ship), 48, 56
Adams, John, 48 Anglo-American treaty, 131
Adams, John Quincy, 46–48, 51–53, 58, Anglo-Brazilian Treaty, 128, 205n52
61–62, 124–25 Anglo-Dutch Treaty, 35, 78
Adelaide (ship), 111 Anglo-Portuguese Treaty, 35, 75, 78
Adjai (African boy), 10–12 Article XII, 207n67
adjudication, 72–73, 148 Anglo-Spanish Treaty, 35–36, 75, 78,
delays of, 110 188n111
Jay Treaty and, 45 Anna Maria (ship), 71–72
slave trade voyages and, 80, 81f The Antelope (ship), 58, 59, 63–64
theories of, 166 antislavery, 26
admiralty courts, 23–24, 68, 73–74, 119, movement, 15, 135
127–28 patrol, 70, 79
Africa treaties, 3, 6, 14
Gold Coast, 240n14 Anti-Slavery Convention, 101
Anti-Slavery Society, 101 Brazil and, 127–29, 142–44
apprenticeships, repeated, 100 court cases of, 26t
arbitrator, 69–70 Cuba and, 144–47
Argentina, 126, 158 Foreign Office of, 77–78, 96, 103, 108,
Argentine Confederation, 78 127
Aristotle, 17, 20 foreign policy of, 169
Armenians, 115 France and, 23, 27–30, 45
Article III, of U.S. Constitution, 47, 191n33 laws for the British, 94
Articles of Confederation, 39 Parliament, 22–23, 29, 63, 82–83, 96,
Article VII, of Jay Treaty, 45 126, 128–29, 141, 143, 242n23
Article XII, of Anglo-Portuguese Treaty, Portugal and, 10, 31, 37, 111–12,
207n67 140–42
Austria, 126, 127 relations of, 78
Congress of Vienna, 29, 32–33, 134 Royal Navy, 4, 7, 70, 79, 103, 129
ayuntamiento (city council), 105 seizing of slave ships by, 26
Spain and, 30–31, 144
Bagot, Charles, 52 U.S. and, 4, 30, 34, 43–44, 46–48, 60,
“Baptisms of coloured people,” 105 62–63, 86–87, 126, 145
barracoons, 220n169 Brookings Institution, 152
Beck, Glenn, 159 Brougham, Henry, 146
Belgium, 116, 127 Brown, John, 41–42
bilateral treaties, 28, 196n9 Brown, Moses, 41
Blackstone, William, 20, 119, 133 Buchanan, James, 145
Bolivia, 78, 126 Buron v. Denman, 220n170
Bonaparte, Napoleon, 24, 33–34 Bush, George W., 158
Bonny (river), 7, 103 Butterfield, Edward, 84
Borneo, 127
Brazil, 32, 74, 85, 88, 92–93 Calhoun, John C., 46–47
Anglo-Brazilian convention, 128 Canning, Stratford, 28–29, 52–53, 61, 124
Anglo-Brazilian Treaty, 205n52 capitalism, 13
Britain and, 127–29, 142–44 Caravali, 103
domestic policies in, 140 Caribbean colonies, 23
judges of, 70 Carnegie Endowment for International
Rio de Janeiro, 69, 92, 110 Peace, 152
sugar of, 143 Carrillo, Jose Maria, 106
bribery, 31 Carrillo, Maria del Carmen, 105
Brisk (ship), 84 Carrillo, Susanna, 106, 108
Britain, 9, 16, 67 Castlereagh (viscount), 28–30, 32, 45, 170,
abolition policy of, 14–15, 17 185n72
Anglo-American treaty, 131 cause of human rights, 134
Anglo-Brazilian convention, 128 Chile, 78, 116, 126–27
Anglo-Brazilian Treaty, 205n52 China, 158
Anglo-Dutch Treaty, 35, 78 Christianity, 11, 18, 32, 164
Anglo-Portuguese Treaty, 35, 75, 78, Ciudad Juarez, 151
207n67 Civil War, 132, 137, 145–46
Anglo-Spanish Treaty, 35–36, 75, 78, Clara (ship), 86
188n111 classic offenses, 133
antislavery policies of, 26 Clay, Henry, 46, 49
Anti-Slavery Society, 101 Collier, George, 67–68, 71

[ 246 ] INDEX
colonialism, 154 Supreme Court, 42, 47, 50, 56, 58, 63,
Colonization Society, 49 125
Commentaries on American Law (Kent), 65, vice-admiralty, 8–9, 24–25, 26t, 27, 31,
133 34, 80, 82, 128, 141–43
Commentaries on the Conflict of Laws and Court of Human Rights, European, 150
Commentaries on the Constitution of the Cover, Robert M., 181n5
United States (Story), 56 Crawford, Abraham, 103
Commentaries on the Laws of England Crawford, William H., 49
(Blackstone), 20 crimes against humanity, 6, 13, 114–15,
commissary judge, 69 136, 148, 156
commissioner of arbitration, 69 Martens Clause and, 138
commissions’ procedures, 202n41 crimes against peace, 156
common law, 181n5 criminal liability, 162
communi ratione et pro aliis, 117 Crowther, Bishop Samuel Adjai, 10–12
compunction, 73 Cuba, 85, 89–90
Confederate States of America, 39, 145–46 Britain and, 144–47
Congress Havana, 7, 69, 72–73, 76, 79, 93, 95,
of Aix-la-Chapelle, 44, 124 100–107
First Continental, 38 traffic to, 140
U.S., 17, 41, 60, 124
of Verona, 60, 131 Dallas, USS, 58–59
of Vienna, 29, 32–33, 134 death penalty, 50, 87
Constitution, U.S., 149, 183n43 Declaration of Independence, 38, 149
Article III, 47, 191n33 Declaration of the Rights of Man, 149
originalist interpretation of, 159 democracy, 15, 170–71
Pennsylvania ratifying convention on, Denman, Joseph, 71, 91, 97–98, 111–13,
40 129–30
slavery and, 39 Denmark, 23
Constitutional Convention, 40 depositions, written, 202n41
constructivism, 170, 243n25 disease, 69, 113
Convention of January 21, 1815, 31 AIDS, 164–65
courts domestic courts, 114, 140
active years of, 80 domestic law, 25
admiralty, 23–24, 68, 73–74, 119, DuBois, W. E. B., 152
127–28
British cases of, 26t Eagle (ship), 86
domestic, 114, 140 Ecuador, 78, 126
effectiveness of, 90 Egypt, 158
of Havana, 79 Elem Kalabari, 103
ICC, 6, 150–51, 156, 163, 170–71 Eliza (ship), 68–69
impact and limitations of, 78 emancipados, 100
International Court of Justice, 99 Gavino, 102
mixed, 60, 68, 77, 79, 85, 93, 113, 140 Isabel Marina, 103, 105, 107
Permanent Court of Arbitration, 148, Matilda, 103, 105–7
152 protection of, 109
Permanent Court of International Justice, enforcement, 94–95, 144–46
148, 152 England. See Britain
of Sierra Leone, 79 Enlightenment, 17–18, 134–35, 149,
slave trade, 6 160

INDEX [ 247 ]
equipment clause, 75, 84, 91–92 Grotius Society, 155
erga omnes (against all), 117 Gulf of Mexico, 104
Escalera, 109
Esperanca Felix (ship), 7, 9–11 Hague Conventions, 115
European Court of Human Rights, 150 on the Laws and Customs of War, 137
European Union, 167, 171 Haiti, 23, 127
Extraordinary Chambers in the Court of Harper’s Ferry, 41
Combodia, 151 Havana, Cuba, 7, 69, 72–73, 95, 101, 103–4
extraterritorial jurisdiction, 157 courts of, 79
emancipados in, 100, 102, 105–7
Fantome (ship), 84 judges in, 76, 93
FATE variable, 184n58, 206n61, 210n92 health, 9, 72, 104
Filartiga v. Pena-Irala, 116 AIDS, 164–65
final jurisdiction, 58 disease, 69, 113, 165
First Continental Congress, 38 History of the Law of Nations (Wheaton),
flags 115
false, 5 Holocaust, 154
foreign-flagged ships, 27, 55, 59 Holy Alliance, 32
of France, 89 Hope (ship), 41
multiple, 216n137 hostis humani generis (enemies of mankind),
U.S. flagged ships, 44f 45, 114–15, 119, 135, 149, 154
Fleeming (admiral), 103 Hotham, Charles, 82, 211n99
Foreign Office, 77–78, 96, 103, 108, 127 House of Commons, 22, 29, 82, 83, 129
foreign policy, 164, 170 House of Lords, 22, 29, 82
of Britain, 169 House of Representatives, U.S., 124
of U.S., 60–61 Hudson, Manley O., 152–54
Foreign Slave Trade Act, 22 humanitarianism, 6, 103, 134
forfeitures, 3, 41–42 intervention, 118
Fourah Bay College, 11 language of, 134
Framers, 160 law, 137–38
France, 5, 9, 54–56, 135 humanity, 134–35, 139
Britain and, 23, 27–30, 45 crimes against, 6, 13, 114–15, 136, 138,
Declaration of the Rights of Man, 149 148, 156
flag of, 89 laws of, 116
French Revolution, 22, 149 human rights, 17
mixed courts and, 85 abuses, 163
new entry prohibition in, 183n39 cause of, 134
ships of, 179n18 ideology, 149
Freetown, Sierra Leone, 3, 5–6, 8, 69 protection of, 36
Universal Declaration of Human Rights,
Gallinas expedition, 97 148, 150, 155, 158, 161
Gavino (emancipado), 102 violation of, 99, 148
Genocide Convention, 148, 150 Human Rights Day, 158
Gentili, Alberico, 117, 119, 138 human rights law, 13, 116, 138–39, 148
Gold Coast, 240n14 cause of, 134
Government House, 108 crimes against humanity and, 114
Grasshopper, HMS, 103–4 jurisdiction and, 114
Grenville (lord), 17 human sacrifice, 118
Grotius, Hugo, 17, 65, 118, 138 human trafficking , 163

[ 248 ] INDEX
Icanam (ship), 7–8, 9 Jackson (clerk), 101
ICC. See International Criminal Court Jackson (justice), 155
ICTR . See International Criminal Tribunal Jackson, Andrew, 49
for Rwanda Jamaica, 83, 109
ICTY. See International Criminal Tribunal Japan, 135
for Yugoslavia Jay Treaty, 34, 191n33
Igbo language, 103 Article VII, 45
impressment, 46, 53–54, 62 Jefferson, Thomas, 17, 43
industrial capitalism, 13 La Jeune Eugenie (schooner), 54–56
institutionalism, 170 John Adams, USS, 51
institutional liberalism, 170 joint stock companies, 164
Inter-American Commission on Human judges
Rights, 151 Brazilian, 70
international abolition movement, 16 commissary, 69
International Adjudications: Ancient and in Havana, 76, 93
Modern History (Moore), 152 judicial character, 77
International Bill of the Rights of Man, 155 judicial review, 64
International Court of Justice, 99 jure gentium, 115
International Covenant on Civil and Politi- jurisdiction, 14, 35, 44, 55, 79, 128
cal Rights, 150 extraterritorial, 157
International Criminal Court (ICC), 6, final, 58
150–51, 156, 163, 170–71 over piracy, 119–20, 143
“International Criminal Justice in Time of over terrorism, 240n9
Peace,” 156 universal, 114–17, 138
International Criminal Law, 115 jury trial right, 42
International Criminal Tribunal, 151, 163 jus naturale, 181n5
International Criminal Tribunal for Rwanda Justinian, 18, 181n5
(ICTR), 163 just war, 117
International Criminal Tribunal for Yugosla-
via (ICTY), 163, 167 Kaufmann, Chaim D., 243n25
international humanitarian law, 137–38 Kennedy (commissioner), 101
“International Human Rights Law: Imperi- Kent, James, 65, 133
alist, Inept and Ineffective?”, 159 Kenya, 158
international law, 14, 16, 65–66, 131, 161, kidnapping , 97
165–66 Klintock, Ralph, 121
international legal theory, 162
International Military Tribunal, 148 language
International Red Cross, 137 of humanitarianism, 134
international relations theory, 161 Igbo, 103
International Tribunals: Past and Future Latin America, 60–61. See also specific
(Hudson), 152 countries
intervention, humanitarian, 118 Lauterpacht, Hersch, 155
Introduction to the Study of International Law law
(Woolsey), 134 of charity, 18
Iphigenia, HMS, 6–7, 9 common, 181n5
Isabel Marina (emancipado), 103, 105, 107 conflict of, 20
ius gentium, 17–18, 119, 134, 135–37, 138, domestic, 25
160 enforcement of, 94
ius naturale, 17, 160 of humanity, 116

INDEX [ 249 ]
law (continued) Matson, Henry James, 84, 242n23
human rights, 13, 114, 116, 134, 138–39, Mends, Robert, 6–7
148 Mercer (congressman), 60, 124
international, 14, 16, 65–66, 131, 161, Mexico, 126, 134–35
165–66 Ciudad Juarez, 151
international humanitarian, 137–38 Gulf of Mexico, 104
manumission, 38 Middle Passage, 21, 84
municipal, 58, 123 Mildmay, George William St. John, 7–8
natural, 17–19, 25, 161, 181n5 military, 13–15, 24, 132, 140, 148, 167
positive, 21, 28 Milošević, Slobodan, 167
Roman, 136 Missouri Compromise, 51
statutory, 181n5 mistreatment, 100
of war, 115, 117 Mixed Commissions or Mixed Courts,
law of nations, 17–20, 55–59, 121, 154, 6, 8–9, 11, 45, 60, 67–68, 77, 79, 73,
181n5 93, 99, 113
piracy and, 50, 60–61, 64–65 effectiveness of, 140
right of search and, 24–27 France and, 85
“The Law of Nations, the Law of Nations U.S. and, 85
and the Rights of Man” (Lauterpacht), Monroe, James, 46, 48, 51, 54–55,
155 58–62, 124
laws for the British, 94 Monroe Doctrine, 61
lawyers, 70 Montesquieu, 19–20
League of Nations, 156 Moore, John Bassett, 152
Leeke, Henry John, 3–7, 12, 74 multilateral treaties, 28, 196n9
legal positivism, 161–62 municipal law, 58, 123
liability, criminal, 162 murder, 122–23
liberalism, institutional, 170 mutiny, 120, 126
Liberia, 49 Myrmidon, HMS, 3–4, 6–7, 9
Lieber, Francis, 132
Lieber Code, 132–33, 137, 230n71 Nantes, 9
Lincoln, Abraham, 132, 146 Napoleonic Wars, 24, 26, 28, 34, 36, 166
Liverpool (prime minister), 29 National Association for the Advancement
Loanda, Angola, 76 of Colored People, 152
Locke, John, 18, 20 nationality
Los Colorados (barrier reef), 103 of slave ships, 75, 80, 89f, 130
Le Louis (ship), 27, 57, 63–64 variable, 216
Louis XVI (king), 183n39 nation-states, 119, 136, 157, 162, 168
Louis XVIII (king), 34 NATO, 167
natural law, 17–19, 25, 161, 181n5
Madison, James, 48, 116 natural rights, 17, 19, 134
Maine, 51 Navy, U.S., 87
Mansfield (lord), 21 Nazism, 6, 138
manumission laws, 38 neorealism, 170
Marbury v. Madison, 64 Netherlands, 30, 34–36, 67, 78, 91
Maria da Gloria (ship), 90–91, 110–13 New Granada, 127
Marshall (chief justice), 58, 63, 122 New World, 12, 24
Martens Clause, 115, 137–38 NGOs. See nongovernmental
Mary E. Smith (schooner), 143 organizations
Matilda (emancipado), 103, 105–7, 107 Nigeria, 7, 10, 103

[ 250 ] INDEX
nongovernmental organizations (NGOs), Anglo-Portuguese Treaty, 35, 75, 78,
152, 164 207n67
nonstate actors, 163 Britain and, 10, 31, 37, 111–12, 140–42
Northwest Ordinance, 39 domestic policies in, 140
Nuremberg trials, 6, 14, 138–39, 154–56, positive law, 21, 28
162–63 positivism, legal, 161–62
power, 169
offenses, classic, 133 state, 166–67
“Of Offenses Against the Law of Nations” of U.S., 171
(Kent), 133 prisoners of war, 18
Old Calabar, 103 prize money, 70, 76, 184n54
“On defending the Subjects of another allocation of, 206n63
Sovereign” (Gentili), 118 proctors, 74
overcrowding , 72 “Proposal for an International Criminal
Court,” 157
Palmerston (viscount), 37, 83, 88, 101, 139, proslavery, 22
141, 168 Providence, RI, 41
Palmerston’s Act, 141–43 Providence Abolition society, 41
Pape, Robert A., 243n25 Prussia, 32, 126, 127
Parliament, 63, 96, 126, 143, 242n23 Pufendorf, Samuel von, 20
Act for the Abolition of the Slave Trade
and, 23 Quadruple Alliance, 32
House of Commons, 22, 29, 82–83, Quakers, 96, 164
129
House of Lords, 22, 29, 82, 128, 141 rape, 118
peacetime search, 27, 52, 55–56, 63–64 rational choice, 170
Pennsylvania ratifying convention, 40 realism, 169–70
Perez, Manuel, 104 Rebel, Felipe, 104
Permanent Court of Arbitration, 148, 152 Red Cross, 137
Permanent Court of International Justice, reenslavement, 100
148, 152 religious revival movements, 17
Petite Betsy (ship), 8 repeated apprenticeships, 100
Phillimore, Robert, 131 Revolutionary War. See American Revolu-
Pinochet, Augusto, 116 tionary War
piracy, 8, 45, 49, 77 Right of Visitation and Search (Wheaton),
jurisdiction over, 119–20, 143 115
law of nations and, 50, 60–61, 64–65 rights
murder and, 122–23 of ambassadors, 133
redefining of, 50, 125 claimants of, 99
slave trade as, 50, 60, 62–65, 115, human, 17, 36, 134, 148–50, 149, 155,
123–24, 126, 129–30 158, 161, 163
statute against, 120–21 to jury trial, 42
strategy, 60 of mutual search, 34–36, 47, 53, 62,
treatment of, 153 85–86, 88
universal jurisdiction and, 116–17 natural, 17, 19, 134
U.S. and, 119–21 of search, 27, 46, 51, 62, 125
Plenipotentiaries, 33 of seizure, 56
Pongas (river), 51 Ringdove, HMS, 72
Portugal, 34–36, 67, 91–93, 96 Rio de Janeiro, Brazil, 69, 92, 110

INDEX [ 251 ]
Robertson, William, 110 legal cases of, 9
Romans, 17–18 nationality of, 75, 80, 89f, 130
Roman law, 136 overcrowding of, 72
Romney, HMS, 109 searching of, 27
Rousseau, Jean-Jacques, 19, 171 seizures of, 3, 5, 26–27, 34, 36, 55–57, 74,
Royal Navy, 4, 7, 70, 79, 103, 129 111, 166
Rush (American minister), 52 Spanish, 7
Russia, 32, 44, 61, 126–27, 158 U.S. flagged, 44f
Rwanda, 151, 163 wrongful capture of, 68
slave trade
safe conduct, 133 abolition of, 13–14
Saguez, Joaquin, 106, 107 adjudication and, 80, 81f
San Carlos, Duke of, 30 African, 57
Santo Cristo del Buen Viage, 105 ban of, 3, 8, 12, 17, 22–25, 27–31, 33–36,
Scalia, Antonin, 159–60 88, 93, 97, 145, 164
Schooner Sally (court case), 42 courts, 6
Scott, William, 27 as crime against humanity, 114
sea robbers, 11 justification of, 16
Seward, William, 146 piracy and, 50, 60, 62–65, 115, 123–24,
Sharon, Ariel, 116 126, 129–30
Sierra Leone, 92, 99–100 slavery and, 39–40
courts of, 79 suppression of, 13–15, 23–24, 28, 32, 37,
Freetown, 3, 5–6, 8, 69 44, 78, 82–83, 88, 96
vice-admiralty courts in, 27, 34 tolerance for, 20, 23, 95
Sixth Circuit, 59 transatlantic, 6, 13–15, 65, 82, 85, 114,
skepticism, 159 140, 145–47
slaves tribunals, 99, 153
emancipated, 77, 79, 99 Slave Trade Act, 41
prices of, 83 Smith, John, 59
slave property, 101 Smith, Thomas, 122
slavery Smith, William, 82, 211n98
abolition of, 21 Snake, HMS, 110, 111
antislavery, 3, 6, 101, 14–15, 26, 70, 79, Snapper, HMS, 51
135 social contract theory, 134
arguments against, 17 Somerset, James, 20–21
in newly admitted states, 51 Somerset v. Stewart, 20–21, 23, 25
normalization of, 12 South Africa, 135
proslavery, 22 South America, 59. See also specific countries
provisions of, 29 Spain, 8–9, 34–35, 67, 91, 93
slave trade and, 39–40 Britain and, 30–31, 144
U.S. Constitution and, 39 Latin America and, 60–61
slave ships. See also specific ships Turnbull and, 102
condemnation of, 67, 76, 91–92 Special Rapporteur on Torture, UN, 150
conditions of, 71–72 Srebrenica, massacre of, 151
detention of, 198n19 state power, 166–67
favored, 4 state sovereignty, 119
foreign-flagged, 27, 55, 59 statutory law, 181n5
forfeitures of, 3, 41–42 Stewart, Charles, 20
French, 179n18 Stewart, Keith, 72–73

[ 252 ] INDEX
Stockton, Robert, 54 Treaty of Ghent, 30, 44, 48
Story, Joseph, 56–58, 122, 185n63 trials, 73–76
sugar, Brazilian, 143 jury trial right, 42
Superintendent of Liberated Africans, 102 Nuremberg, 6, 14, 138–39, 154–56, 162–63
Supreme Court, 42, 47, 50, 56, 58, 63, 125 of Tokyo, 151
Suriname, 69 tribunals, 99, 153
Sweden, 186n77 Turnbull, David, 83, 100–102, 106–8

Talleyrand-Périgord, Charles Maurice de, 33 Ulpian (jurist), 181n5

terrorism, 163, 240n9 United Nations (UN), 158
theory, 170 Charter, 148, 152
of adjudication, 166 General Assembly, 158, 161
international legal, 162 in San Francisco, 152
international relations, 161 Security Council, 167
of just war, 117 Special Rapporteur on Torture, 150
social contract, 134 United States (U.S.), 154, 158
Thompson (Secretary of the Navy), 62 American Revolutionary War, 6, 34, 39,
threats, 31, 94 45, 48, 149, 160
Times, 179n18 annual slave imports, 40f
Tokyo, trials of, 151 Britain and, 4, 30, 34, 43–44, 46–48, 60,
Tolmé, David, 106, 108 62–63, 86–87, 126, 145
Torture Convention, 162 Civil War, 132, 137, 145–46
transatlantic slave trade, 6, 13–15, 65, 82, Congress, 17, 41, 60
114 Constitution, 39–40, 47, 149, 159,
Cuba and, 140 183n43, 191n33
end of, 145–47 Declaration of Independence, 38, 149
mixed courts and, 85 diplomatic protests by, 87
Trans-Atlantic Slave Trade Database, 80, 82 flagged ships of, 44f
Travels in the West (Turnbull), 100 foreign policy of, 60–61
treaties House of Representatives, 124
Anglo-American treaty, 131 legislation by, 5
Anglo-Brazilian Treaty, 205n52 Maine, 51
Anglo-Dutch Treaty, 35, 78 mixed courts and, 85
Anglo-Portuguese Treaty, 35, 75, 78, Navy, 87
207n67 neutrality of, 25
Anglo-Spanish Treaty, 35–36, 75, 78, northern states of, 38, 183n43
188n111 piracy and, 119–21
antislavery, 3, 6, 14 power of, 171
bilateral, 28, 196n9 Providence, RI, 41
Jay Treaty, 34, 45, 191n33 southern states of, 183n43
loopholes in, 90–92, 110 United States v. La Jeune Eugenie, 185n63
modification of, 75 United States v. Palmer, 120
multilateral, 28, 196n9 United States v. Smith, 50, 122
mutual search, 4 Universal Declaration of Human Rights,
network of, 147 148, 150, 155, 158, 161
provision of, 28 universal jurisdiction, 114–17, 138
of Quadruple Alliance, 32 L’Ursule (ship), 8
Webster-Ashburton Treaty, 87 Uruguay, 59, 78, 126
Treaty of 1845, 215n127 U.S. v. Furlong, alias Hobson, 122

INDEX [ 253 ]
Vattel, Emerich de, 19 War of 1812, 26, 30, 46
Vecua (ship), 7–9 Waterwitch, HMS, 84, 242n23
Venezuela, 126 Webster-Ashburton Treaty, 87
Verona, Congress of, 60, 131 Webster’s Dictionary, 135, 137
vice-admiralty courts, 8–9, 24–25, 31, 128, Wellesley, Henry, 30
141–43 Wellington, Duke of, 29–30, 33,
British cases of, 26t 141
domestic, 80, 82 West Indies, 23, 100
in Sierra Leone, 27, 34 Wheaton, Henry, 114–15, 130–31
victims, 113, 151 white man’s burden, 154
Vienna, Congress of, 29, 32–33, 134 Wilberforce, William, 22, 28, 43
Vigilante (ship), 8 Wilson, James, 40
villages, raiding of, 10–11 Wirt, William, 47–49, 55, 121
violence against women, 151 Witt, John, 230n71
Vitoria, Francisco de, 118, 138 women, violence against, 151
Woolsey, Theodore D., 133–34
Wanderer, HMS, 97 World War II, 6, 149, 154–55, 157
wars written depositions, 202n41
American Civil War, 132, 137, 145–46 wrongful capture, 68
American Revolutionary War, 6, 34, 39, Wyvill, Christopher, 84
45, 48, 149, 160
just, 117 Xerxes (schooner), 103–4, 105
laws of, 115, 117
Napoleonic Wars, 24, 26, 28, 34, 36, 166 YEARDEP variable, 184n58, 210n92,
prisoners of, 18 216n136
World War II, 6, 149, 154–55, 157 Yugoslavia, 163, 167

[ 254 ] INDEX