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Abolition and Imperial Law, 1790–1820Lauren BentonPublished online: 15 Aug 2011.
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Abolition and Imperial Law,1790–1820Lauren Benton
Historians have represented the movement for the abolition of the slave trade as a turning
point in international law, either characterising the formation of mixed commissions to
adjudicate slave ship captures as elements of early human rights law or interpreting the
treaty regime supporting the ban on the slave trade as marking a decisive shift towards
positivism in international law. A closer look at the legal history of abolition suggests
that such perspectives omit an important dimension: the ties between abolition and imper-
ial legal consolidation. In exploring such ties, the article first examines prize law and its
direct and indirect influence on calls for intra-imperial regulation of the slave trade,
especially its effective criminalisation. Across the empire, efforts to ban the slave trade
reflected and reinforced pressures to strengthen imperial legal authority by regulating
and restricting planter legal prerogatives.
Recent studies of the legal history of the abolition of the slave trade have tended to
focus on the decades well after the British Abolition Act of 1807, when a series of bilat-
eral treaties between Britain and other nations made possible the operation of mixed
commissions to adjudicate slave ship captures. Oddly contrasting interpretations of
the legal significance of abolition have emerged from this approach. Several legal his-
torians have argued that the mixed commissions represent examples of early human
rights courts.1 This narrative relies on an understanding of abolition principally as a
humanitarian movement centred in Britain with radiating influence leading to the cre-
ation of a successful global prohibition regime.2 Other scholars have characterised the
move towards signing bilateral treaties to establish mutual rights to search ships and
penalise slave traders in mixed commissions as a particularly clear example of a
broader trend towards positive international law, also brought to completion as the
treaty regime expanded over the nineteenth century.3
The first of these perspectives has greater flaws than the second, but both accounts
require some corrections and qualifications. The needed adjustments involve both a
The Journal of Imperial and Commonwealth HistoryVol. 39, No. 3, September 2011, pp. 355–374
Correspondence to: Lauren Benton, Dean for the Humanities, New York University, 5 Washington Sq. No., Rm.
221, New York, NY 10003, USA. Email: [email protected]
ISSN 0308-6534 print/1743-9329 online/11/030355–20DOI: 10.1080/03086534.2011.598737 # 2011 Taylor & Francis
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more careful assessment of the legal history of abolition and an effort to integrate a
focus on law within the broader historiography on slavery and abolition. Placing
the formation of mixed commissions alongside an array of institutional changes
related to abolition allows us to perceive commercial penalties for slave trading as
part of a regulatory field through which merchants, planters, colonial officials, and
captives manoeuvred, rather than as singular institutional formations marking a
sharp break with the prior maritime regulatory regime. David Eltis has provided an
example of such an approach in noting that British merchants sometimes profited
from the activities of the mixed commissions and that the courts coexisted with
weak enforcement of criminal penalties against traders.4 Such observations point to
connections between the maritime law used to suppress the trade and seemingly sep-
arate efforts to enhance imperial legal authority. The broader historical perspective
also encourages us to examine not the operation of the mixed commissions themselves
but legal change in the decades immediately before and after the 1807 Abolition Act.5
The prize law used to adjudicate cases of slave ship captures deeply influenced the way
legal penalties for slave trading were structured. An institutionally wider and chrono-
logically longer view allows us to see that abolition could not be separated from con-
stitutional questions about the relation between colonial elites and metropolitan
power—and, more specifically, from conflicts over the legal prerogatives that slave-
holders would be permitted to retain within a consolidating imperial order.
This article identifies interconnected facets of a complex constitutional politics
developing within different segments of the imperial legal order. In vice-admiralty
courts applying prize law, cases involving slave ship captures generated rulings that
took up the question of whether slave trading was illegal under the law of nations
and that largely rejected this conclusion. Jurists instead insisted that an effective ban
of the trade depended on its prohibition across a preponderance of empire-states,
as well as on strong intra-imperial enforcement. Meanwhile, attempts to ban the
trade intersected with struggles throughout the empire over the restriction of slave
owners’ legal prerogatives. Both the efforts to constrict the trade and the struggles
over slaveholders’ legal authority flowed through, and reinforced, calls to reform
imperial criminal law. In providing only commercial penalties for slave trading,
vice-admiralty courts (and the mixed commissions) pointed to the need for enhanced
criminal penalties for slave traders and for stronger powers of imperial enforcement.
The ban on the trade was implemented unevenly in colonial contexts steeped in con-
flicts over the regulation of slaveholders’ rights to punish slaves. The result in both
arenas of law was a focus on imperial order that sometimes eclipsed concerns about
the rights of slaves and demanded political and legal strategies more complex than
calls for banning the slave trade based on universal principles.6
In exploring the history of abolition in relation to imperial legal consolidation, this
article begins by considering the influence on legal approaches to abolition of prevail-
ing practices in prize law. Judgements in prize cases turned on the nationality of ships
and traders, determinations linked to the focus on neutrality in inter-imperial law and
to a broader, already existing strategy of adjusting the global regime incrementally
through bilateral treaties. The article then turns to an analysis of rulings in prominent
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cases of slave ship capture on both sides of the Atlantic. Judges challenged the natural
law basis for jurisdiction over foreign slave traders, rejecting a legal basis for the
analogy of slave trading and piracy. They argued that a ban on slave trading depended
on parallel actions in the municipal law of multiple empires. The last section explores
some of the obstacles to implementing the ban on trade by British subjects in the
empire, examining several places in the British empire where geographic and political
conditions made imperial borders especially porous. By juxtaposing these diverse
pieces of the legal history of abolition, I suggest that legal efforts to implement sup-
pression of the slave trade mainly reinforced the project of consolidating the legal
authority of empires.
‘War in Disguise’
Prize courts sat within different institutional configurations in European Atlantic
empires, but by the eighteenth century, they operated according to a set of shared con-
ventions. One common understanding was that captures at sea should be taken before
a court under the jurisdiction of the captor. A ship seized at sea did not become the
property of the captor (thought it remained in the possession of the captor) until it
had been condemned in such a forum, with an opportunity for other parties to
present their claims. Prize courts were broadly assumed to operate on the basis of cus-
tomary practices of the law of nations while observing stipulations of treaties. The
right of a sovereign to authorise the seizure of enemy ships and thereby create an
auxiliary military force of privateers was recognised by all European powers.
An inter-imperial Atlantic legal regime existed by the beginning of the eighteenth
century, but it was not a regime of well-ordered practices. Shippers and their sponsors
gamed the system in myriad ways. They seized ships not authorised under their com-
missions, avoided prize proceedings, sought sympathetic forums with questionable
jurisdiction, disposed of goods and ships before cases were complete, sailed with fal-
sified or purchased commissions, flew flags without authorisation, conducted sham
sales of ships in order to change their nationality, transshipped goods in neutral
ports to ‘color’ enemy goods, and adopted many other tactics designed to evade regu-
lation and reduce or avoid penalties. Their activities took shape against the back-
ground of diplomatic manoeuvring that was sometimes successful in influencing
patterns of enforcement and the outcome of individual cases. The wars between
1753 and 1815 infused prize courts with renewed political and commercial impor-
tance, at the same time that the conflicts drew attention and controversy to the
nature of prize proceedings. Captures during wartime were considered acts of war, a
way of damaging enemy finances and commerce.
The years leading up to the abolition of the slave trade saw a crush of cases in British
prize courts involving shippers sailing under neutral flags and trading to and from
enemy ports.7 This trend followed the breakdown of a principle during the Seven
Years’ War that was referred to as the Rule of War of 1756. The principle that
during wartime neutrals could not pursue trade that had not been open to them in
time of peace was intended to block belligerents from protecting trade during
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wartime by handing it over to neutrals.8 As both commerce and conflict expanded in
the second half of the eighteenth century, the definition and the interpretation of the
rights of neutrals and belligerents came under close scrutiny. Neutrals stood to gain a
much larger share of rich Atlantic commerce; weaker belligerents hoped to profit from
the use of neutral shipping; and Britain sought to protect its growing advantages in
naval warfare by limiting the scope for neutral shipping.
These tensions were reflected in an uneven and complex treaty regime. Some bilat-
eral treaties reaffirmed the principle that neutral ships would be protected if carrying
enemy goods, but allowed that the goods might be legally seized by captors. Other
treaties established exceptions by creating protections for enemy goods when carried
by co-signing neutral powers. Atlantic European states signed both kinds of treaties,
guided by calculations about which rule would more clearly support commercial
and military goals. Further, treaty provisions did not always guide policy. For
example, during the American War of Independence, France issued regulations that
discouraged the taking of neutral vessels regardless of treaty provisions, and Spain
asserted that enemy goods in neutral ships should be protected from seizure but sim-
ultaneously issued contrary instructions to Spanish American ports.9
In individual prize cases, judges were called on to interpret treaty provisions. But
first, they had to make a series of determinations about nationality—of claimants,
ships, ship captains, and goods. In the case of persons, British prize court judges ela-
borated a formula for fixing nationality, privileging information about claimants’
place of residence, family ties, and related factors.10 Especially in light of recent scho-
larship that associates an emerging fixation on nationality with border crossing and its
regulation in the late nineteenth century, it is interesting to observe the confidence
with which British prize courts sorted through conflicting evidence to make rulings
on nationality at the start of the century.11
A routine Caribbean case involving a ship from Venice captured by a British navy
vessel and taken to the vice-admiralty court in Antigua illustrates the courts’ approach.
The captors claimed that the ship had listed a ‘false Destination’ and was ‘engaged in a
Trade with the Colony of the Enemy in a Time of War, which was not permitted to
Foreign Vessels in a Time of Peace’.12 The court condemned the ship, leading to an
appeal that focused mainly on proofs of the nationality of the claimant for the
goods. The ship was Venetian; the merchant who owned the goods denied that his resi-
dence in Venice meant that he was a subject of Venice. He asserted that he had not
returned to the city since it had fallen to the French, and he presented to the court
a copy of a letter to his wife in Venice commanding her to leave for ‘one of the
States of his Imperial and Royal Austrian majesty’. In a typically detailed passage,
the claimant stipulated that
he was born in Della Brazza, in the states of Venice; was engaged in a Voyage fromVenice to London for the last Seven Years; from thence returned to Venice, where heremained Two Years; from Venice he went to Trieste, and from Trieste to Leghorn; henow resides in Venice, when not as Sea; is a Subject of the Emperor of German; . . . henever was admitted as a Burgher or Freeman of any Town or City; he is married, and
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his Wife and Family reside in the Place where he was born, except one of his Sons,who is in Venice.13
The cargo was returned. The example shows the kinds of evidence and style of reason-
ing relied on to decide nationality in what had become a fairly stable approach in
admiralty courts.
The focus on proofs of nationality was key to the wave of cases filling British prize
courts during the war with France between 1793 and 1815. American ships were the
most frequently intercepted vessels taken to prize courts in the Caribbean, where
lower-court rulings condemning ships and their cargo were often vigorously appealed
on the grounds that the voyages were permissible acts of neutrals. For example, when
the Sophrona was captured on a voyage from New York to Martinique in May 1806 and
condemned in the Antigua prize court, an appeal followed with documentation to
show that the claimant, William Stewart of New York, ‘was born in Philadelphia;
has lived there for the last seven Years, except when in Turkey for about Six Months
. . . One Year that he lived in France, and One year in England . . . has never been
admitted a Burgher or Freeman of any City or Place; [and] is not married’.14 In
some cases, appeals failed after an investigation of the nationality of merchants and
ship owners, or the origins of goods, as when it could be shown that the cargo on
board ‘consisted of Colonial Produce, going from the Colonies of the Enemy to the
Country of the Enemy, without having been bona fide imported into a neutral State’.15
Nationality was also the main determination guiding the outcome in prize cases
involving cargoes of slaves. In the case of the Reimskyke, on appeal before the Lords
Commissioners, the nationality of the merchants and the ship was in dispute.16 A
British naval vessel had captured the ship near the mouth of the Surinam River. It
was flying a Dutch flag and had 376 slaves on board. The case is somewhat unusual
in that the claimant asserted his right to the cargo precisely by arguing that he had dis-
guised his true nationality as a British merchant because he was prohibited as a British
subject to take slaves to his plantation in Demerara. He had been forced ‘to put the said
Ship under Dutch Colours’ by transferring ownership to two agents in Rotterdam ‘for
the Purpose of enabling her to trade as a Dutch Vessel to the Colonies of the Mother
Country’.17 The advocate for the captors asserted their rights to the ship because it was
‘navigating in a Dutch Character’ and the ‘Owners of Ship and Cargo are to be con-
sidered as Dutchmen’.18 The dispute over nationality did not extend to the slaves. As
cargo, they were mainly confined to the ship as it sat in the harbour at St. Vincent
awaiting resolution of the case. When the anchor gave way on Christmas day in
1803, the Reimsdyke drifted out to sea ‘without Ruder or Sails’. A sloop gave chase
and managed to capture 115 slaves before being ‘obliged to abandone the Reimsdyke,
with the Remainder of the Slaves on board, to their Fate’.19
The Reimsdyke case reminds us that ships with slaves as cargo were decided, in the
decades leading up to the 1807 Act of Abolition, according to the same procedures and
criteria as other prize cases. Neutral colours were as useful to slave traders as they were
to other shippers. James Stephen, a leading British abolitionist who had practised as a
lawyer in the vice-admiralty court at St. Christopher, appears to have understood that
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one way to contain the slave trade was to reduce the tolerance for neutral shipping and
address the procedural shortcomings of prize courts. In 1806, Stephen published the
polemic ‘War in Disguise’, which complained about the damage to British interests of
the expansion of neutral shipping with the erosion of the Rule of 1756.20 The result
had been an epidemic of ‘neutral disguise’.21 Stephen complained that the effect of
the ruse of neutrality was to deprive Britain of the possibility of containing and dama-
ging the commerce of its enemies: ‘As long as French or Spanish sugar and coffee, can
pass from the West Indies, under neutral colours, or even on neutral account, to any
market on earth . . . the colonial interests of the planter, and of the state, will be par-
tially, if not wholly, protected from the ruinous effects of war’.22 Stephen also observed
that as the war had continued, merchants had ‘become perfectly well acquainted with
the nature of this ordeal of the prize courts’ and coached witnesses accordingly. He
noted that the prize courts had little investigative power and had to rely on the false
testimony of ship masters and their owners, supported by ‘a tribe of subsidiary impos-
tures’.23 When the court distrusted those affirmations, they often asked for additional
evidence about citizenship, the origin of goods, or transshipment of goods in neutral
ports. But the requests had simply given rise to an industry of fraud whereby ‘every
neutralizer of eminence, is become almost as expert in the rules of our Admiralty,
in regard to evidence, as a proctor at Doctors’ Commons’.24
‘War in Disguise’ was ostensibly not about the slave trade, and yet given Stephen’s
stature as an abolitionist, it seems likely that he intended it as an indirect attack on the
trade. Stephen surely understood the implications of his critique of extending protec-
tions to neutral shipping.25 In his only mention of the trade in the tract, Stephen noted
that slaves were being ‘copiously imported’ to Cuba and the islands of the French Car-
ibbean, with American traders ‘violating the law of their own country, as the law of
war’.26 Stephen would have understood very clearly that greater control over neutral
‘disguise’ would narrow the range of actions for slave traders. His experience in
prize courts would have taught Stephen that effective controls on the trade would
require some strategy for constraining the actions of neutrals given that, as he put
it, ‘not a single merchant ship under a flag inimical to Great Britain, now crosses
the equator, or traverses the Atlantic Ocean’.27
It seems obvious—though it has not been much noticed by historians of abolition—
that the turn towards treaty making as a way of regulating the slave trade was not just a
response to rulings in prominent cases involving the trade (reviewed in the next
section) but also an adaptation of the practice already in use for modifying the
inter-imperial law of neutrality. A widely accepted understanding of the rights of neu-
trals had been partially modified through a series of bilateral treaties carving out
exceptions. As these exceptions grew in number, jurists articulated alternative
general principles, in particular the principle that ‘free ships make free goods’. Consist-
ent across the changing treaty regime was the emphasis by prize court judges on decid-
ing cases based on proofs of nationality. The legislation that abolitionists were seeking
in order to ban the slave trade under municipal law would only indirectly affect courts
and jurists bound by laws of war designed to protect the rights of belligerents.
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Enforcing ‘a Class of Trade Laws’
After the Abolition Act, the courts continued with the same focus on determining
nationality, if necessary by looking beyond the superficial evidence of flags and
titles. Two prize cases heard on appeal in 1812 and 1813 illustrate this pattern. In
the case of the capture of the Donna Marianna, the High Court of Admiralty let
stand the judgement of the Sierra Leone vice-admiralty court condemning the ship
and its cargo to the captors. The court affirmed that even though the ship was
flying the colours of Portugal, a country for which the slave trade was still legal,
both ship and cargo were under the control of British merchants.28 In the case of
the Diana, an opinion written by Sir William Scott overturned the judgement of the
lower court that the Swedish ship was a legal prize. Scott found that there was ‘no
reason to suppose that there were any other than Swedish interests involved in the
transaction’, and Sweden had not made the trade illegal, so there was no basis for
seizing the ship or its cargo.29
In part because Scott himself implied in the Diana ruling that he was departing from
the court’s approach in the earlier celebrated case of the Amedie, his ruling has some-
times been represented as a change in course for the admiralty courts. But Scott dis-
agreed mainly about the way the earlier case had been interpreted, and he was, in fact,
following the same principles at work in that case. The Amedie was an American slave
ship seized in the West Indies in 1807 and condemned in the vice-admiralty court in
Tortola. The Lords Commissioners affirmed the judgement on appeal. The ruling
noted that under the laws of the United States, the ship owners could claim no legal
right to property over the slaves because the foreign slave trade was prohibited
under US law. Abolitionists hoped that the ruling provided the courts with expansive
jurisdiction over other countries engaged in the trade; writing about the case in his
1815 book on international law, Wheaton also interpreted the case in this way.30 His-
torians, too, have understood the Amedie case as the one that showed ‘how far courts
would support officials enforcing British laws’ against the trade.31 But US slave law was
of secondary importance to the court’s finding that the ship had been poised to cross a
British blockade of Cuba. In deciding the case, the lower court in particular had treated
it as ‘one of prize of war solely; condemnation had nothing to do with her being
engaged in the slave trade’.32
Scott had an opportunity to address the full set of underlying issues raised by slave
ship captures in the case of the Louis, a French ship that had sailed from Martinique in
January 1816 to Africa, where it was captured off the coast of Cape Mesurado. The ship
was taken to the prize court at Sierra Leone and condemned as a slaver. The owners
appealed, arguing that there was no right of search in peacetime and that the 1815
treaty between England and France did not award such a right. Scott agreed.33
Putting to rest the idea that the court had intended to stake a claim to a more expan-
sive jurisdiction in the Amedie case, Scott clearly stated that the slave trade could not be
considered abolished on universal principles because it was so widely practised and
sanctioned in law.34 If the trade were criminal under the law of nations, no act in
municipal law would suffice to establish its legality.35 The construction of a
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prohibition regime against the slave trade depended on the erection of penalties for
participation in it under municipal law. Acts of suppression helped to compose the
law of nations rather than flowing from an authorisation under the law of nations.
As in earlier rulings, Scott was recognising multiple layers of evidence of the oper-
ation of an international norm. Convention, or patterns of usage, occupied a founda-
tional place. Treaties might be drafted, he noted, to augment or override convention,
but treaties ‘are perishable things’ and insufficient on their own. It is especially signifi-
cant for our purposes to note Scott’s assertion that even though France had promised
in the Treaty of Vienna to implement a ban on the slave trade, the prohibition had no
significance for the court because it had never been announced or fully implemented
within the French empire. An international prohibition depended not just on treaties
but also on bans repeated across multiple and separate legal orders. The municipal
courts of one country did not have authority to punish transgressors against the
laws of another country. Only French courts would have jurisdiction to try offences
committed by French subjects.
The court’s core finding was that that wartime measures of visitation and search
could not be legally employed in peacetime. This seeming blow to the cause of abol-
ition might, in fact, have represented an attempt to point a way forward for abolition-
ists. Irked at the spectacle of ‘mongrel’ proceedings that were ‘half civil, half prize’ and
determined to mark the dangers of relying on ‘prize interrogatories calculated for the
transactions of war’ in controlling the trade, Scott’s ruling implicitly recommended a
two-pronged strategy.36 As with alterations to the rule of neutrality, only treaties could
begin to create exceptions to the principle that it was illegal to conduct visit and seizure
of ships during peacetime. At the same time, it was necessary both that anti-slave trade
legislation be adopted in many jurisdictions and that controls be made effective inside
each polity approving the ban.
In part influenced by British appeals rulings, US courts followed a similar course.
The Louis case was cited extensively by John Marshall in the US Supreme Court’s
1825 ruling in the case of the Antelope. This case resulted from raids conducted by
the Columbia, which had been fitted out in Baltimore and sailed under the name of
the Arraganta with a commission from Jose Artigas, leader of forces on the eastern
side of the Rio de la Plata.37 The Arraganta had crossed the Atlantic and attacked a
Spanish ship, the Antelope, off the coast of Africa and seized its slaves. The crew
armed the Antelope, raided three other ships with slaves off the coast of Cape Mesur-
ado, and, after attempting to sell the slaves in Brazil, ended up sailing the Antelope into
US coastal waters with 283 slaves on board.
The first legal action to arise from the case was not that brought by claimants but a
criminal case against the captain, John Smith, for piracy. Under a May 15, 1820 act,
foreign slave trading by American citizens was defined as piracy.38 The defence
argued that Smith had abandoned his American citizenship and become a subject
of the Banda Oriental, under Artigas. The judge did not have to go this far to aid
Smith in the case. He simply found the commission from Artigas to be legitimate.
Smith was acquitted of all charges in a trial before a jury.
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When the claims on the ship and the cargo were considered in the US court of the
District of Georgia, Judge William Davies held that the slave trade was not illegal under
the law of nations and that its standing as legal trade in foreign nations could give rise
to property rights. Seeming to echo Scott’s ruling in the Louis case with regard to the
incomplete banning of the trade by the French, Davies held that even though Spain
and England had signed a treaty agreeing that Spain would not engage in slave
trading south of the equator, the Spanish government had never issued a decree to
that effect. Further, US courts should not be called upon to enforce the terms of an
Anglo-Spanish treaty. Writing for the Sixth Circuit Court, Johnson concluded that
the slave trade might be ‘revolting to humanity’, but laws by other countries
banning the trade represented ‘nothing more to the eyes of any nation than a class
of trade laws of the nation that makes them’.39 The court ordered that the slaves be
split into three groups, with the larger two groups awarded to Spain and Portugal.
The verdict was affirmed in the Supreme Court but altered to reduce Spain’s share of
slaves and eliminate Portugal’s claim on the basis of the proofs of property and nation-
ality submitted by the claimants. Marshall’s decision quoted Scott’s ruling in the Louis
case extensively in affirming that the slave trade could not be considered piracy under
the law of nations. Even when a captured ship belonged to a country prohibiting the
trade, Marshall reasoned, there was no right to bring in the capture for adjudication in
peacetime. An important factor in the case was that the Antelope had violated the neu-
trality of the United States. Although Marshall alluded to doubts that the Arraganta
was ‘a regularly commissioned cruiser’, he did not base the ruling on a challenge to
the validity of the Artigas commission. Instead, the ruling focused on the nationality
and proofs of property of the claimants. In addition to evaluating the evidence pre-
sented on the number of slaves aboard the Antelope when it was raided as supporting
a reduced claim for the Spanish, Marshall noted that the Portuguese consul had not
been able to identify any ‘subject of the Crown of Portugal’ as owner.40 There was
nothing more than the report that some plundered vessels were flying Portuguese
flags when captured, and the court recognised the widespread practice—especially
by Americans—of carrying on the trade under false colours. The slaves other than
those awarded to the Spanish claimant were delivered over to the United States.
The Le Louis and the Antelope cases unfolded in the context of strong abolitionist
pressures and after the formal prohibition of slave trading by British subjects and of
foreign slave trading by Americans. The rulings pointed to the limitations of both
prize law and municipal law in suppressing the trade. Prize law was designed to
protect the rights of belligerents in wartime and could not be easily altered to recognise
an expanding right to visit and search under peacetime. As in Marshall’s approach in
the Antelope case, it was possible to probe proofs of nationality and property as a way
of limiting claims to slaves, but the courts balked at suggesting an expansive jurisdic-
tion over foreign traders.41 They also rejected the argument that slave trading could be
considered piratical in international law even if labelled as piracy when carried on by
subjects under the municipal law of some nations. Rather than representing a clear
turn towards positivism in international law, this approach imagined a natural law
basis for ending the slave trade as residing in repeated affirmations of a ban across a
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global legal order. And while the rulings seemed to underscore the necessity of building
a prohibition regime through treaties establishing exceptions to search-and-seizure
limitations, the cases also called into question whether treaties were sufficient in the
absence of practices within imperial orders to enforce bans on the trade.
Prize Slaves and Criminal Planters
Intra-imperial enforcement was a tall order. At the same time that judgements in
metropolitan courts were signalling the limits of an inter-imperial prohibition
regime, British officials and the British navy were struggling in many parts of the
empire to eliminate the trade. The reliance on vice-admiralty courts to continue adju-
dicating prize court captures in the immediate wake of the Abolition Act may seem
peculiar, but it no doubt reflected, in part, the obstacles to bringing successful criminal
actions against slave traders. Abolitionists were familiar with these problems even
before passage of the Act, when they had promoted criminal cases against acts of
cruelty on board slave ships, without great success. Abolitionists had been responsible,
for example, for charges brought in 1791 in London against Captain John Kimber for
the brutal torture of two female slaves on a voyage from Senegal to Grenada. One plank
of the captain’s defence had been that the torture of the slave fell within the preroga-
tives of a ship captain to ‘discipline’ anyone on board his ship. More ominously for
those who sought criminal penalties for traders, the prosecution found that it
lacked sufficient credible witnesses to the alleged acts.42
As we have already seen in the case of Smith’s prosecution, criminal actions against
slave traders often foundered because of the sympathies of local judges and juries.
Elites running colonial courts had a long history of failing to press charges against
smugglers of all kinds operating in their midst.43 The zeal for punishment was
uneven among imperial officials, too, and created further potential for acquittals
and appeals. A case from Sierra Leone illustrates the dangers of approaching slave
trading as a purely criminal offence within the law of a sprawling empire. When the
British naval vessels HMS Thais attacked the trading factory at Cape Mesurado in
June 1813, the British arrested a group of British subjects, including a Scot, John Mac-
Queen, and took them to Sierra Leone, where they were charged with the criminal
offence of slave trading in a court presided over by the surgeon of the colony,
Robert Purdie. After MacQueen was convicted and sentenced to 14 years’ transpor-
tation to New South Wales, a petition on his behalf prepared in London complained
that the colonial official had acted ‘without indictment, or other Evidence than the
aforesaid confession, and without a grand or petit jury’. The argument that arrest
and punishment violated MacQueen’s rights as a British subject was presented along-
side the claim that he had lived for many years at Cape Mesurado, ‘a place not within
this Territory, Possession, nor occupation of his Britannic Majesty’, and ‘had no knowl-
edge of the Laws passed against the Slave Trade’. The pardons issued in London must
have reinforced abolitionists’ perception that the most effective control on the trade
was through the prize proceedings, despite the flaws of the system.44
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Growing abolitionist sentiment coexisted in many places with strong currents of
local tolerance for continuing active participation in the trade. Opportunities to
trade in slaves while avoiding penalties were especially rich in regions where small
craft could cross imperial lines and where naval patrols were light. In Mauritius and
Seychelles, abolition of the trade stimulated a clandestine trade in slaves from Mada-
gascar and the coast of Africa. Dramatic increases in the slave populations of Seychelles
between 1810 and 1815, and of Mauritius between 1814 and 1818, suggest an expan-
sion of the trade. In Mauritius, 45 slave ships were condemned between 1812 and 1819,
as a result of desultory naval patrols. Most of the trade seems to have escaped official
notice through the use of small craft to land captives at night on the coast, where they
were quietly moved in stages to slave markets.
Prize proceedings on Mauritius offered the familiar opportunities for manoeuvre to
avoid penalty as in the Atlantic. Commissioners reported that the captain was often
listed as the owner so that in the case of capture, ‘the real owner was not compro-
mised’.45 Even when slave ships were condemned, the result was to add to the
servile labour force in the colonies. Prize slaves were assigned to local elites for
terms of indenture of 14 years. Such assignments continued after the end of the war
with France in 1815. For example, 60 slaves were seized from the schooner Gustave
in 1816, and all were assigned to work for local families. Recaptives appear in the
records as entering service in occupations such as porters, mariners, gardeners, dom-
estic servants, blacksmiths, joiners, house servants, shoemakers, cooks, cabinet makers,
and sugar workers.46 Prize returns between 1813 and 1827 listed 2,998 recaptives, pre-
dominantly the young men in most demand as field workers. With no official tracking
of how they were being employed or treated after assignment as apprentices, it seems
likely that many ended up as labourers on the island’s sugar plantations.
Abolitionist attention to the flourishing trade in Mauritius and Seychelles focused
on the lack of commitment of imperial officials to stamp it out. Sir Robert Faruqar,
Governor between 1810 and 1823, consistently denied these charges and during his
tenure repeatedly called for more British naval forces, particularly to attack French
slavers. Commissioners also cited as a problem ‘a general disposition in the inhabitants
in favour of the slave trade’.47 Grand juries were reluctant to indict slave traders, and
local judges were known to subvert the law.48 In the case of a notorious slave trader
named Dorval, whose ship was chased and burned (though still somehow successful
in unloading its captives to shore), the grand jury indicted both Dorval and the
ship’s captain, L’Hoste. Farquhar allowed Dorval to give himself up in exchange for
a pardon for all past offences, and his prosecution then failed because of a ‘flaw in
the indictment’.49 Attempts to hold slave traders criminally responsible were more
effective under Farquhar’s successors, when suspected traders were shipped to
London for trial with the possible penalty of transportation to New South Wales as
punishment.
In the West Indies, implementing the ban on slave trading faced similar obstacles.
Tortola and the islands around it provide a good example. With a small population
of about 8,000 people, 7,000 of whom were slaves, Tortola harboured small sugar plan-
tations and little else. It was a short sail to the Danish islands of St. Thomas and
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St. John, where the slave trade was also illegal but where merchants continued both to
buy slaves and to act as middlemen in the trade to Puerto Rico. Runaway slaves from
Tortola sometimes commandeered boats to reach small cays or Crab Island (now
Vieques) or to land at Puerto Rico, where converting to Catholicism theoretically
would lead to freedom but where the traffic was still legal.
Tortola had a functioning vice-admiralty court in 1807, and small naval vessels
patrolling the passage in the middle of the island group seized vessels and brought
them in for adjudication. An inquiry into the fate of prize slaves in the early 1820s
found that after the Abolition Act, the Tortola court condemned dozens of captures
of small craft carrying slaves, many of whom were serving as mariners, but rarely
recorded what happened to the slaves who were seized. Many of the slaves had prob-
ably been impressed on captors’ ships. After an English naval vessel intercepted the
English schooner Edward on its voyage from Martinique to New Orleans, with the
slaves Charles, John Charles, Henry Valton, and George Valton aboard, Tortola officials
condemned the Edward and its cargo and recorded names and ages of the slaves (all
were in their 20s) without leaving a record of what happened to them. Like the
Edward, the brig Miriam was captured and condemned in November 1811. By the
time the judgement reversed on appeal in 1813, the vessel’s 11 slaves, all thought to
be born in Africa, had disappeared without a trace.50
Those slaves not pressed into service on ships had probably been sold. The proxi-
mity to markets in St. Thomas and Puerto Rico made such sales possible, and the
records also reveal an active small-craft trade around the islands. When the American
ship Africa was seized near Tortola in 1808, restored, and then condemned on appeal,
the procedures mattered little to the 236 slaves on board, who ‘were not taken under
the protection of His Majesty . . . but were sold as Slaves in the neighbouring foreign
Colonies’.51 The description of what had happened to the slaves on board another ship,
the Mouche, sheds some light on how the sale of slaves routinely prospered in the
shadow of the vice-admiralty court on the small islands dotting the waters between
St. Thomas and Tortola. A mariner aboard the Mouche testified that the vessel left
St. Thomas with four Africans between the ages of 8 and 13. Lying off Jost Van
Dykes, the Mouche transferred the ‘new Negroes’ into another vessel, and they were
moved from there into a small sloop. When other vessels were captured with slaves
on board, the captors could take the slaves quietly to market by making sales on
Jost Van Dykes and other small islands. An investigator described the practice:
When Vessels with Slaves on board were captured, the vessels were brought to suchretired Small Islands as Jos Van Dykes [sic], and the Sound at Spanish Town [VirginGorda], to which the Merchants from the Danish Island of St. Thomas resorted, andbought the Slaves which were afterwards sold in the foreign islands. This system waspracticed quite openly, as there was neither military nor naval force in the Govern-ment of the Virgin Islands to prevent them.52
There was evidence of collusion at official levels, too. The extent of it is suggested by
the wreck of the Dona Paula, a Portuguese slaver that had been unable to reach Para in
Brazil and was heading to Puerto Rico carrying 253 slaves. At midnight on 3
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September 1819, the ship hit the reef around the small island of Anegada and began to
sink. Locals in small vessels from Anegada and Spanish Town managed to save all
except eight of the slaves on board. But no slaves ever appeared in the vice-admiralty
court. Rumour had it that a ‘Spaniard named Arankas brought a Swedish vessel from
St. Thomas up to the small uninhabited islands near Spanish town called the Dogs,
where the Negroes had been secreted, and took them off.’ The commissioners investi-
gating the case in 1823 received an anonymous letter saying that the collector of the
customs had been paid ‘a bribe of one thousand pounds’ to look the other way.53 It
is possible that this ship and others were purposely wrecked on the famously broad
reef at Anegada in order to transfer slaves to small craft while preserving the possibility
of insurance claims.54
Here as in Mauritius, prize slaves recognised by the court were made apprentices for
fixed terms. Apprentice assignments linked prize law to master–servant law in estab-
lishing a technically limited, but practically expansive, authority of masters, usually for
a period of 14 years. Many prize slaves taken at Tortola were transported to Trinidad,
where they were assigned to labour on sugar plantations, a pattern that prompted anti-
slavery advocates to question whether the system was giving rise to a form of quasi-
slavery.55
As at Mauritius, the legal politics of slave trade suppression unfolded against the
background of planter concerns about imperial attempts to regulate slavery. In the
Leeward Islands, planters had managed to come together to pass an amelioration
act before the slave trade was abolished. Passed in 1798, the Leeward Islands Slavery
Amelioration Act represented an attempt to forestall, not advance, reform by antici-
pating abolitionists’ attacks and allowing planters to point to a record of legislation
against mistreatment of slaves. In the next years, criminal charges were brought
against several prominent planters, but most ended in acquittal. An exception was
the case of the wealthy Tortola planter Arthur Hodge, who was tried and convicted
in 1811 of murdering a slave. The case came to trial not as a result of community
outrage but because Hodge was involved in a bitter feud between elite factions.
News of the charge of murder prompted the new Governor of the Leeward Islands,
Hugh Elliot, to travel to Tortola and to take an active interest in the prosecution.
Depositions suggested that Hodge had killed or mutilated scores of slaves over a
period of eight years without having his behaviour attract notice, much less judicial
action, despite the presence on the island of an active Quaker community with ties
to Philadelphia and London abolitionists. The prosecutor denied defence insinuations
that Hodge was the victim of a conspiracy and emphasised the high stakes of demon-
strating that the local government was capable of exercising authority over slave
masters. Not to do so would create ‘anarchy’ and would ‘leave every man to assert
his own rights, and maintain what he may call, his own privileges in the best way
he can’.56 In his opening statement, the prosecutor pointed out that even under Eng-
land’s old villeinage law, there had been limits on the punishment of villeins by the
lord. The prosecutor’s closing statement celebrated the role of local magistrates
while also hinting that making slavery an acceptable institution depended on their
oversight:
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That it is murder to kill a slave is no new doctrine; it is universally admitted to be soby the Common Law of England. The Common Law of England is the law of thecolonies, and God forbid that slavery should be tolerated, if the laws wereotherwise.57
The authority to try and punish Hodge depended on the recognition of a particular
imperial constitutional order. In an affirmation of imperial oversight, Hodge was
found guilty and hanged when Elliot refused the jury’s recommendation of mercy.
As the examples of Mauritius and Tortola show, each micro-region of the empire
developed its own intricate relation between the legal control of slave trading and
the legal regulation of slaveholding. It seems clear that the subject of prize slaves
and their treatment functioned as a thin wedge opening into the broader and more
politically charged issue of the imperial state’s authority to restrict the legal preroga-
tives of slave owners. In the West Indies, slave holders strived to shore up the right to
make summary judgements and inflict punishments of slaves, to maintain the exclu-
sion of slave testimony against whites, and to preserve the generally lenient treatment
of whites accused of mistreating or even murdering slaves. A prominent strand of abo-
litionist discourse focused on the constitutionally aberrant prerogatives of slave
masters, who were represented as placing themselves above the law.58
How was the evolution of imperial criminal jurisdiction linked to the trajectory of
prize law? The connection flowed, in part, from the fact that prize courts and the
mixed commissions could penalise traders only by forcing them to forfeit property
but could not charge them or their crews with criminal offences. Colonial or national
courts were supposed to take up this function. In practice, such charges were rarely
brought, a condition consistent with the difficulties of prosecuting criminal cases
involving slave owners’ treatment of slaves. For abolitionists, imperial officials, and
some reforming colonial elites, the goal of creating an effective ban on the slave
trade was logically tied to the objective of reining in slave owners’ prerogatives; the
conditions needed to produce both results—abolition and a magistracy capable of
acting independently of slave owners—depended on enhanced imperial oversight.
As we have seen, this logic was consistent with the jurisprudence in prominent
cases involving slave ship captures. Judges’ insistence in those cases on a restricted jur-
isdiction in prize proceedings was accompanied by the argument for the regulatory
significance of intra-imperial legislation and enforcement.
Conclusion
The version of the legal history of abolition outlined here modifies the narrative of a
successful prohibition regime created by a humanitarian movement. As scholars of the
movement have shown, abolitionist sentiment emerged and gathered strength in
Britain in tandem with developing public confidence in the British empire as an ascen-
dant global force. This observation corrects efforts, as Seymour Drescher has put it, ‘to
fit British slave trade abolition into the framework of the age of revolution’.59 An
earlier emphasis on abolition as a response to, or part of, a period of rupture—a
singular triumph of humanitarianism or a decisive shift towards legal
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internationalism—shifts our attention from another pressing problem of the age: con-
solidating imperial order. Abolition addressed an interconnected set of issues related
to the imperial constitution, when we consider that term as encompassing the relations
of multiple legal authorities within empire as well as discourse of subjects’ rights.60
Exercising control over slave traders and punishing them for engaging in the trade rep-
resented goals that were intimately tied to attempts to limit the authority of slave
holders over slaves, and the independence of colonial governments that wanted to
shelter those prerogatives while skirting imperial directives.61 Abolition presented
itself as a challenge of reordering the plural legal order.
Attention to this dimension of abolition—its role in a broad project of imperial
consolidation—is not intended to question the influence or sincerity of anti-slavery
reformers. Nor do I wish to suggest that abolitionists laboured under a form of false
consciousness or mere misunderstanding as they suppressed the trade by adapting
prize law to the task. The approach helps to explain why in the middle decades of
the century the mixed commissions functioned more like arms of British imperial
authority than sites for diffusing humanitarian sentiment.62 It helps us to move,
too, beyond the oppositional framings of humanitarianism and economic functional-
ism. And the law’s connection of efforts to suppress the trade and attacks on planters’
legal prerogatives places abolition and emancipation in the same analytic framework.63
Abolition evolved within a thick institutional context of intra-imperial reform and
inter-imperial negotiation. Adapting prize law to adjudicate cases involving the inter-
ception of slave trading ships was a strategy imposed by conditions of the empire as
well as by simple institutional imperatives: the courts already existed and were at
work in adjudicating slave ship captures. Prominent rulings in Anglo-American
courts rejected arguments of expansive jurisdiction, forcing a strategy of incremental
adjustment of the treaty regime and placing renewed focus on imperial legislation and
its enforcement. At the same time, suppression could not be treated solely as an
element of wartime or commercial control. The cases generated freed captives who
entered various local systems of regulation, and the responsibility for punishing
slave traders was shifted to national and colonial courts. Debates about the treatment
of prize slaves, continued attention to the weakness of the abolition regime as a deter-
rent to slaving, and ongoing conflicts over the legal prerogatives of slave owners—
these phenomena reinforced calls for enhancing imperial authority. If the legal
history of abolition is a story of a conflict over rights, then it is one mainly about
the definition of the property rights and legal prerogatives of slave traders and slave
owners within the imperial order.
Notes
[1] On mixed commissions as early human-rights courts, see especially Martinez, ‘AntislaveryCourts’; and on mixed commissions generally, see Bethel, ‘The Mixed Commissions’;Helfman, ‘The Court of Vice Admiralty at Sierra Leone’; Emmer, ‘Abolition of the Abolished’.The view that these forums were early human rights courts has been repeated by some histor-ians of the history of abolition who write about the movement generally. See Drescher,
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Abolition, 237. In the most careful assessment of their operation and impact, David Eltis hasnoted that the commissions were largely operated by British officials that they were limitedtools for suppression of the trade, in part because they applied commercial penalties but notcriminal punishment for traders. Eltis, Economic Growth, 91, 111.
[2] Nadelmann, ‘Global Prohibition Regimes’.[3] On the argument that the bilateral treaty regime represented a significant shift in international
law, see Allain, ‘Nineteenth Century Law of the Sea’ and Keene, ‘The Construction of Inter-national Hierarchy’.
[4] Eltis, Economic Growth, 83, 90.[5] This shift in attention to the period leading up to the mixed commissions imitates the approach
of Christopher Brown in analysing abolition discourse by moving his analysis to the middledecades of the eighteenth century. Brown, Moral Capital.
[6] The symbiotic relation between order and rights, with order sometimes featured as the domi-nant legal and political objective, has been noted by scholars in other settings. Jeremy Adelmanhas argued that the Latin American republics in the nineteenth century developed a constitu-tionalism focused more on order than on rights. Paul Halliday has shown that a similar logicframed habeas corpus in the British empire, where, despite the discourse about rights thataccompanied debates about the use or suspension of the writ, it aimed at regulating the relationbetween sovereign power and the jailer. I have argued elsewhere that Spanish and Britishempires in the period between 1780 and 1840 showed more similarities than differences inthe focus on the scope of delegated legal authorities in empire. See Adelman, Republic ofCapital, 195–96; Halliday, Habeas Corpus; Benton, Search for Sovereignty, chap. 4. For awork questioning the traditional chronology of the emergence of human rights, see Moyn,Last Utopia.
[7] Leading up to this period, the admiralty jurisdiction in the British empire had been shrinkingfor centuries. Common law courts routinely issued writs of prohibition in the fourteenth andfifteenth centuries to challenge the jurisdiction of English admiralty courts over a wide range ofkinds of litigation involving ships and their cargos. By the end of the seventeenth century, anddespite efforts by civilians to protect the purview of the courts over disputes arising anywhere inforeign territories, admiralty courts had lost their jurisdiction with regard to maritime con-tracts arising on land at home or abroad. This meant that the courts’ ‘instance’ jurisdictionwas reduced to consideration of mainly cases having to do with the treatment and wages ofseamen. The admiralty courts retained criminal jurisdiction over acts committed on boardships, including mutiny and piracy, while incorporating common law procedures. And theyheld onto jurisdiction over prize cases, or the adjudication of captures of enemy vessels intime of war. This was a lucrative area of practice for the courts and for the civilians staffingthem. For an excellent summary of trends in admiralty proceedings and jurisdiction, see Bour-guignon, Sir William Scott, Lord Stowell.
[8] See Kulsrud, Maritime Neutrality to 1780, chap. 2. Kulsrud regards the rule as already firmlyestablished in European usage and not a break with existing practice.
[9] The complexities of the legal politics of neutrality included the Leagues of Armed Neutrality of1780, when Russia led a coalition including Denmark, Sweden, and the Netherlands in declar-ing the intention to use naval ships to defend neutral trade. See Kulsrud, Maritime Neutrality to1780 and De Madariaga, Britain, Russia, and the Armed Neutrality.
[10] At the same time, the courts tended to regard British subjecthood as a property carried byBritish sojourners anywhere in the world. Similarly, ‘nationality’ in prize courts was a termthat identified ships or their owners with empires rather than with nation-states. ‘French’ships could sail from Guadeloupe or Vannes; ‘Dutch’ captains could acquire the label fromliving in Antwerp or Curacao.
[11] McKeown, Melancholy Order.[12] The National Archives of Britain (hereafter TNA), High Court of Admiralty (HCA) 45/51, 426.
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[13] TNA, HCA, 45/51, 427v. The ship had been captured off Guadeloupe, an enemy territory, butclaimed to be sailing for St. Thomas.
[14] TNA, HCA 45/52 f. 301 v. Another example is that of the Hiram, captured on a voyage fromSt. Sebastian in Spain to St. Thomas and taken to Tortola, where an American citizen claimedship and cargo in the vice-admiralty court. The ship and cargo were condemned as enemyproperty, but the judgement was reversed on appeal, pending the supply of further proof ofthe ownership of the cargo. TNA HCA 45/53, ff. 160–73.
[15] TNA HCA 45/52, f. 98.[16] The Lords Commissioners of Prize Appeals, members of the Privy Council, heard appeals from
the High Court of Admiralty and from colonial vice-admiralty courts.[17] TNA, HCA 45/51, 448, 456. Emphasis in original.[18] TNA, HCA 45/51, 479v.[19] TNA, HCA 45/51, 471.[20] James Stephen, War in Disguise.[21] Ibid., 67.[22] Ibid., 179.[23] Ibid., 99.[24] Ibid., 107[25] Historians of the period have often taken note of the tract without drawing direct connections
to abolition. An exception is Anstey, Atlantic Slave Trade, 352.[26] Stephen, War in Disguise, 75.[27] Ibid., 71. Emphasis in original.[28] Dodson, Reports of Cases, 92–94.[29] Ibid., 96.[30] For example, African Institution, Fourth Report of the Directors of the African Institution.[31] For example, Murray, Odious Commerce, 40.[32] This is from Richard Henry Dana’s commentary on Henry Wheaton’s discussion of the case.
Wheaton, Elements of International Law, 132, n. 86.[33] For an assessment of Scott’s career that argues that defining nationality was central to his con-
tributions to jurisprudence in the prize courts, see Bourguignon, Sir William Scott, Lord Stowell.[34] Scott regarded it as ‘a most extravagant assumption in any court of the law of nations, to pro-
nounce that this practice, the tolerated, the approved, the encouraged object of law, ever sinceman became subject to law, was prohibited by that law, and was legally criminal’. Dodson,Reports of Cases, 250. Scott questioned the notion that the slave trade could be considered pira-tical, noting that ‘it was not piracy by the laws of this country.’ (Dodson, Reports of Cases, 220).An act passed in 1811 had made participating in the slave trade a criminal offence, for whichthe punishment was transportation; no such law would have been required to outlaw piracy.Scott also reasoned that even if slave traders were pirates, they would retain their rights to‘dispose of their own property’. (Dodson, Reports of Cases, 22).
[35] Dodson, Reports of Cases, 251. Further, Scott observed that the fact that slavery itself continuedto be legal meant that people were being held in bondage under a claim to original title thatrested on the legality of the act of purchasing slaves.
[36] Dodson, Reports of Cases, 98, 240.[37] By the time the Antelope case was under review, Artigas had been exiled to Paraguay. Even at
the time the Columbia sailed from Baltimore, Artigas’s forces were close to defeat, and for sometime had not been in possession of a deep water port. Blank commissions signed by Artigas hadbeen taken by the British ambassador to the government of Buenos Aires to Baltimore and soldthere. Artigas was at war with Portugal and so the commissions were valuable aids to raidingagainst Portuguese shipping. His leadership of a breakaway force in South America also allowedthe commissions to be interpreted as covering attacks on Spanish shipping. See especiallyBeraza, Los Corsarios de Artigas.
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[38] Smith was charged with taking goods of small value off a French ship, seizing an unnamedPortuguese ship, and taking the Antelope.
[39] Noonan, The Antelope, 63.[40] The Antelope, 23 U.S. 10 Wheat. 66 (1825).[41] Story was more inclined that Marshall to adopt this approach and in fact was responsible for
several rulings that implied his willingness to define slave trading as abolished under the law ofnations. See Rubin, Law of Piracy, chap. 3.
[42] Trial of Captain John Kimber, 1792.[43] On this problem in an earlier period, see Ritchie, Captain Kidd; Benton, Search for Sovereignty,
chap. 3.[44] TNA Home Office (HO) 17/1/1.[45] From Report of the Commissioners of Inquiry Upon the Slave Trade at Mauritius (London, 1829),
quoted in ‘Slave Trade at the Mauritius’, 141.[46] TNA, Colonial Office (CO) 167/43.[47] Quoted in ‘Slave Trade at the Mauritius’, 142.[48] Allen, ‘Licentious and Unbridled Proceedings’, 91–116, 106.[49] ‘Slave Trade at the Mauritius’, 143.[50] TNA, CO 318/82, f. 1–4.[51] Ibid., f. 5v.[52] Ibid., f. 6.[53] Ibid., f. 6. The report noted that British law commanded that survivors of a wreck, including
slaves, should be considered free persons. But it conjectured that the residents of Anegada andSpanish Town would not have saved any of the slaves if locals had expected the slaves to befreed.
[54] On slave ship insurance, see Oldham, ‘Insurance Litigation’.[55] See Adderly, “New Negroes from Africa”.[56] Belisario, Report of the Trial of Arthur Hodge, 36.[57] Ibid., 82, 171.[58] The sequence of moves is apparent in the debates leading up to passage of the Abolition Act.
See Substance of the Debates, 172, 174, 193. Throughout the West Indies, abolitionists attackedslave owners’ prerogatives by drawing special attention to the two acts in particulars: thewhipping of female slaves and leniency for whites who murdered slaves.
[59] Drescher, History of Slavery and Anti-Slavery, 206.[60] See Hulsebosch, Constituting Empire and see Benton, Search for Sovereignty, especially chap. 4.[61] Christopher Brown makes this point: ‘Reducing the power masters held over slaves required, in
some way, reducing the power slaveholders possessed in the governance of colonial societies . . .Even if emancipationists could generate momentum for slavery reform, did the crown orParliament have the standing and resources to make such measures enforceable by law?’Brown, Moral Capital, 240–1.
[62] The courts were staffed predominantly by British judges because in many cases, other nationsdid not replace judges who left their posts or died. The British navy was solely responsible forthe vast majority of ships brought to the commissions. See Bethell, ‘Mixed Commissions’ andBrown, ‘Abolition of the Atlantic Slave Trade’.
[63] Historians arguing that abolition favoured British interests have tended to emphasise the econ-omic benefits to Britain, while others have disputed the notion that slavery and the slave tradeacted as drags on imperial economies. Two valuable overviews of historiography on abolitionare Drescher, Abolition and Brown, ‘Abolition of the Atlantic Slave Trade’. See also Eltis, ‘WasAbolition of the US and British Slave Trade Significant?’. Christopher Brown makes a casefor separating the study of abolition and emancipation but notes that although ‘abolitiondid not require, as emancipation would, a protracted struggle with colonial legislatures’ itdid demand the articulation of a vision of successful production and commerce withoutslaves. Brown, Moral Capital, 321.
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