Antislavery courts and the dawn of international human rights law

Yale Law Journal

Volumn 117, Issue 4, 2008, Pages 550-560

  Martinez, Jenny S ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 38349145666     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/20455804     Document Type: Review

References (526)

1. See Robert Barr, Associated Press, In Liverpool, Abolition's Bicentenary Revives the Memory of Slavery, WASH. POST, Mar. 18, 2007, at A15.
2. Some of the treaties referred to them as "Mixed Courts of Justice," while others referred to them as "Mixed Commissions." Compare Treaty Between His Britannic Majesty and His Majesty the King of the Netherlands, for Preventing Their Subjects from Engaging in Any Traffic in Slaves art. VII, Gr. Brit.-Neth., May 4,1818, 5 B.S.P. 125
3. [hereinafter Anglo-Dutch Treaty of 1818]
4. (referring to "Mixed Courts of Justice"), with 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., July 28, 1817, 4 B.S.P. 85
5. [hereinafter Anglo-Portuguese Treaty of 1817]
6. (referring to "Mixed Commissions"). On occasion, they are referred to in various records as the "Courts of Mixed Commission." See, e.g., List of Cases Adjudged in the Courts of Mixed Commissions at Sierra Leone, Between the ist of January 1822, and the ist of January 1823, enclosed in Letter from E. Gregory & Edward Fitzgerald to George Canning (Jan. 1, 1823), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, 1822-23, class B, at 14, in 9 BRITISH PARLIAMENTARY PAPERS (photo, reprint, Irish Univ. Press 1969) (1823-24). Because the procedures provided for by the various treaties are basically identical, this Article uses the terms "courts" and "commissions" interchangeably. Similarly, for case of reference, they are referred to as "antislavery courts," though they only exercised jurisdiction over the slave trade and not the institution of slavery itself. The records of the commissions are housed in the Public Records Office (now known as the U.K. National Archives) in London. F.O. 312 (Cape Town); F.O. 313 (Havana); F.O. 314 (Spanish Town); F.O. 315 (Sierra Leone); P.O. 128, 129, 131 (Rio de Janeiro). Copies of cited materials are on file with the author. In addition, much of the correspondence between the British commissioners and the Foreign Office, as well as diplomatic correspondence between the British government and the governments of other nations related to the treaties, is reproduced in the annual volumes of BRITISH & FOREIGN STATE PAPERS [hereinafter B.S.P.] and the slave trade series of the Irish University Press's BRITISH PARLIAMENTARY PAPERS. In citations in this Article, correspondence is ordered in chronological order.
7. See Leslie Bethell, The Mixed Commissions for the Suppression of the Transatlantic Slave Trade in the Nineteenth Century, 7 J. AFR. HIST. 79 (1966).
8. See infra text accompanying notes 205-207.
9. The most comprehensive treatment is a fourteen-page article published in 1966. See Bethell, supra note 3;
10. see also LESLIE BETHELL, THE ABOLITION OF THE BRAZILIAN SLAVE TRADE 122-50 (1970) (discussing the Brazilian mixed commission). As I will discuss in Part I, the extensive historical literature on the British abolition movement and the transatlantic slave trade focuses on the social, economic, and political forces that led Great Britain to spearhead efforts to suppress the transatlantic slave trade, and it mentions the courts' role only in passing. None of these historians examine the courts from the perspective of their role in the history of international law.
11. The only legal scholarship discussing the courts in any depth is a recent South African article that focuses on the commission located in Cape Town, which operated for a short time and heard only a handful of cases. See 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), 37 COMP. & INT'L L.J. S. APR. 404 (2004). The courts are simply not mentioned in most books and articles on international courts and tribunals or on international human rights law.
12. The International Court of Justice, for example, has heard only 136 cases in the past sixty years, most of which have had little tangible impact, and yet it is mentioned in more than nine thousand law journal articles. Similarly, the International Criminal Court has yet to hear a single case but is mentioned in more than five thousand articles.
13. See, e.g., LOUIS HENKIN, THE AGE OF RIGHTS 1 (1990) ("The contemporary idea of human rights was formulated and given content during the Second World War and its aftermath."). To the extent these accounts acknowledge the nineteenth-century antislavery treaties as predecessors to modern international human rights laws, they usually relegate them to a brief reference or a footnote.
14. See, e.g., ANTONIO CASSESE, I NTERNATIONAL LAW 376 (2d ed. 2005).
15. For an accessible history of the early abolition movement written for a popular audience, see ADAM HOCHSCHILD, BURY THE CHAINS: PROPHETS AND REBELS IN THE FIGHT TO FREE AN EMPIRE'S SLAVES (2005).
16. See DAVID ELTIS, ECONOMIC GROWTH AND THE ENDING OF THE TRANSATLANTIC SLAVE TRADE 249 tbl.A.8 (1987).
17. See Act for Abolition of the Slave Trade, 1807, 47 Geo. 2, c. 36 (Eng.). The United States also enacted legislation banning the slave trade in 1807, but it did not take effect until the following year. See Act of Mar. 2, 1807, ch. 22, 2 Stat. 426. The Kingdom of Norway and Denmark banned the importation of slaves into its West Indian possessions in 1792. See Edict of the King of Denmark and Norway, Concerning the Slave Trade, Mar. 16, 1792, in 1 B.S.P. 971;
18. Bernard H. Nelson, The Slave Trade as a Factor in British Foreign Policy, 1815-1862, 27 J. NEGRO HIST. 192, 193-94 (1942).
19. ELTIS, supra note 10.
20. See, e.g., ROGER ANSTEY, THE ATLANTIC SLAVE TRADE AND BRITISH ABOLITION, 1760-1810 (1975);
21. DAVID BRION DAVIS, THE PROBLEM OF SLAVERY IN THE AGE OF REVOLUTION, 1770-1823 (1975)
22. [hereinafter DAVIS, AGE OF REVOLUTION];
23. DAVID BRION DAVIS, THE PROBLEM OF SLAVERY IN WESTERN CULTURE (1966)
24. [hereinafter DAVIS, SLAVERY IN WESTERN CULTURE];
25. SEYMOUR DRESCHER, FROM SLAVERY TO FREEDOM: COMPARATIVE STUDIES IN THE RISE AND FALL OF ATLANTIC SLAVERY (1999);
26. ELTIS, supra note 10.
27. See Rome Statute of the International Criminal Court art. 7(i)(c), July 17, 1998, 2187 U.N.T.S. 93 (criminalizing enslavement);
28. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAWOF THE UNITED STATES § 404 (1987) (criminalizing the slave trade).
29. See Memorandum from Jay S. Bybee, Assistant Att'y Gen., U.S. Dep't of Justice Office of Legal Counsel, to Alberto R Gonzales, Counsel to the President (Aug. 1, 2002), in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 172, 172 (Karen J. Greenberg & Joshua L. Dratel eds., 2005).
30. Sadly, even this form of slavery may not have been completely eradicated. See, e.g., ANTISLAVERY INT'L, IS THERE SLAVERY IN SUDAN? (2001) (suggesting that the nineteenth-century antislavery movement's success should not be read to diminish the significance of modern forced labor trafficking);
31. see also INT'L LABOUR ORG., A GLOBAL ALLIANCE AGAINST FORCED LABOUR 10 (2005) (estimating that 12.3 million people are currently victims of forced labor and other modern forms of slavery).
32. See, e.g., ELTIS, supra note 10, at 15, 204 (concluding a detailed analysis of economic data by asserting that "[t]he market for African slaves in the Americas, as with slavery itself, thus did not fade away in the second half of the nineteenth century, rather it was suppressed").
33. See, e.g., W.E. BURGHARDT DU BOIS, THE SUPPRESSION OF THE AFRICAN SLAVE- TRADE TO THE UNITED STATES OF AMERICA, 1638-1870, at 109 (1896) (noting that the Act To Prohibit the Importation of Slaves into Any Port or Place Within the Jurisdiction of the United States, ch. 22, 2 Stat. 426 (1807), "came very near being a dead letter").
34. ELTIS, supra note 10, at 104.
35. See Chaim D. Kaufmann & Robert A. Pape, Explaining Costly International Moral Action: Britain's Sixty-Year Campaign Against the Atlantic Slave Trade, 53 INT'L ORG. 631, 631 (1999);
36. see also STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY 107-09 (1999) (discussing the fact that Britain's antislavery campaign was contrary to its material interests). The costs Britain incurred included diplomatic, legal, and naval costs; emancipation indemnities to planters; lost customs revenues; lost income from the slave trade, including supplies to slave traders; reduced exports to West Africa and the British West Indies; losses in the sugar trade; and higher sugar prices for British consumers.
37. See Kaufmann & Pape, supra, at 637.
38. See ELTIS, supra note 10, at 97.
39. See Ethan A. Nadelmann, Global Prohibition Regimes: The Evolution of Norms in International Society, 44 INT'L ORG. 479, 492 (1990).
40. WILLIAM EDWARD HARTPOLE LECKY, HISTORY OF EUROPEAN MORALS 153 (1929),
41. quoted in CHRISTOPHER LLOYD, THE NAVY AND THE SLAVE TRADE, at xiii (2d ed. 1968).
42. See ERIC WILLIAMS, CAPITALISM AND SLAVERY (1944).Williams, an Oxford-trained historian, later became a political leader and the first Prime Minister of Trinidad & Tobago, leading the country to independence within the Commonwealth and serving as its head from 1956 until his death in 1981.
43. See generally ERIC WILLIAMS, INWARD HUNGER (1969). His anticolonial agenda may have influenced his earlier scholarly writings.
44. WILLIAMS, CAPITALISM AND SLAVERY, supra note 24, at 154-57.
45. See, e.g, SEYMOUR DRESCHER, CAPITALISM AND ANTISLAVERY (1986);
46. Roger T. Anstey, Capitalism and Slavery: A Critique, 21 ECON. HIST. REV. 307 (1968).
47. See, e.g., Kaufmann & Pape, supra note 20, at 636. Britain dominated both the slave trade and the sugar industry in the years immediately before the Act for the Abolition of the Slave Trade, 1807, 47 Geo. 3, c. 36 (Eng.) (repealed 1824): "British ships carried 52 percent of slaves transported between 1791 and 1805, and British colonies also produced 55 percent of the world's sugar in 1805-06 - and both percentages were rising."
48. Kaufmann & Pape, supra note 20, at 634. The West Indian trade made up more than half of Britain's total colonial trade. Id.
49. See generally SEYMOUR DRESCHER, ECONOCIDE: BRITISH SLAVERY IN THE ERA OF ABOLITION (1977).
50. See ELTIS, supra note 10, at 5-6.
51. Id. at 6.
52. See, e.g., DAVIS, SLAVERY IN WESTERN CULTURE, supra note 13, at 365-445 (describing religious and Enlightenment sources of antislavery thought).
53. See Thomas W. Laqueur, Bodies, Details and the Humanitarian Narrative, in THE NEW CULTURAL HISTORY 176 (Lynn Hunt ed., 1989).
54. See David Brion Davis, The Problem of Slavery in the Age of Revolution, 1770-1823, in THE ANTISLAVERY DEBATE: CAPITALISM AND ABOLITION AS A PROBLEM IN HISTORICAL INTERPRETATION 17, 71 (Thomas Bender ed., 1992)
55. [hereinafter THE ANTISLAVERY DEBATE] ("The antislavery movement, like Smith's political economy, reflected the needs and values of the emerging capitalist order.").
56. Thomas L. Haskell, Capitalism and Origins of the Humanitarian Sensibility (pt. 1), in THE ANTISLAVERY DEBATE, supra note 33, at 107, 111.
57. Seymour Drescher, Whose Abolition? Popular Pressure and the Ending of the British Slave Trade, 143 PAST & PRESENT 136, 166 (1994). For a detailed account of the leaders and key moments in the popular movement against the slave trade,
58. see HOCHSCHILD, supra note 9.
59. See Kaufmann & Pape, supra note 20, at 631-32 (noting that realism and liberal institutionalism "focus on states' material interests and therefore cannot offer much advice on how costly international moral action might be accomplished," while constructivism, though it focuses on "the ways in which political discourse can shape states' conceptions of their interests," does not take into account the purely domestic coalition politics that appear to have shaped British foreign policy on the slave trade).
60. 1 THOMAS CLARKSON, ABOLITION OF THE AFRICAN SLAVE TRADE BY THE BRITISH PARLIAMENT 40 (Augusta, PA Brinsmade 1830) (quoting David Hardey).
61. GR. BRIT. PARLIAMENT, SUBSTANCE OF THE DEBATES ON A RESOLUTION FOR ABOLISHING THE SLAVE TRADE 99 (1806) (statement of Lord Grenville).
62. Thomas Jefferson, President of the United States, Sixth Annual Message (Dec. 2, 1806), in 1 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1897, at 408 (James D. Richardson ed., 1898);
63. see also DU BOIS, supra note 18, at 80 (quoting petitions for the abolition of the slave trade to the United States that describe the trade as "an outrageous violation of one of the most essential rights of human nature" and "degrading to the rights of man");
64. EXECUTIVE COMM. OF THE AM. ANTI-SLAVERY SOC'Y, SLAVERY AND THE INTERNAL SLAVE TRADE IN THE UNITED STATES OF NORTH AMERICA 162 (photo, reprint 1969) (1841)
65. (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 1906 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 international law. THEODORE DWIGHT WOOLSEY, INTRODUCTION TO THE STUDY OF INTERNATIONAL LAW 236-37 (6th ed. 1906).
66. (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 (1996).
67. See HOCHSCHILD, supra note 9, at 48-51 (describing the role of abolitionists in bringing Somerset's case).
68. Somerset, 98 Eng. Rep. at 510. For a discussion of the natural law underpinnings of Somerset and other antislavery cases, see ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS 8-30 (1975). As Cover notes, jurists in England and the United States during the eighteenth and nineteenth centuries had 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 philosophers 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 jus 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.
69. See DAVIS, SLAVERY IN WESTERN CULTURE, supra note 13, at 83.
70. Full exploration of the way that natural law, statutory law, the common law, and the law of nations were conceptualized in the nineteenth century is beyond the scope of this Article, but it is sufficient to note that in the face of a direct conflict between some kind of positive law (including the law of nations) and natural law, judges of the time felt themselves obliged to apply the positive law. See COVER, supra.
71. Somerset, 98 Eng. Rep. at 509.
72. See HOCHSCHILD, supra note 9, at 233-34.
73. See id. at 241-55.
74. See Act To Prevent the Importation of Slaves, 1806, 46 Geo. 3, c. 52 (Eng.).
75. HOCHSCHILD, supra note 9, at 302-03;
76. Drescher, supra note 35, at 141-42.
77. Drescher, supra note 35, at 142.
78. See id. at 142-44.
79. See id. at 145-48.
80. Act for the Abolition of the Slave Trade, 1807,47 Geo. 3, c. 36 (Eng.) (repealed 1824).
81. See David Eltis, The Nineteenth-Century Transatlantic Slave Trade: An Annual Time Series of Imports into the Americas Broken Down by Region, 67 HISP. AM. HIST. REV. 109, 136 tbl.V (1987).
82. See PEABODY, supra note 40, at 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 prohibiting 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.
83. See id. at 120-33.
84. See DAVIS, AGE OF REVOLUTION, supra note 13, at 29.
85. See Roger Anstey, The Slave Trade of the Continental Powers, 1760-1820, 30 ECON. HIST. REV. 259, 263-64 (1977).
86. See DAVIS, AGE OF REVOLUTION, supra note 13, at 29-31.
87. See WARREN S. HOWARD, AMERICAN SLAVERS AND THE FEDERAL LAW 1837-1862, at 25-27 (1963).
88. 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...."
89. See Eltis, supra note 52, at 136 tbl.V.
90. See DU BOIS, supra note 18, at 108-09.
91. See, e.g., BETHELL, supra note 5, at 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).
92. See Tara Helfman, Note, The Court of Vice Admiralty at Sierra Leone and the Abolition of the West African Slave Trade, 115 YALE L.J. 1122 (2006).
93. The Amedie, (1810) 12 Eng. Rep. 92 (P.C.).
94. Id. at 96.
95. Id.
96. Id.
97. Id. at 96-97.
98. Id. at 97.
99. Id. at 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 periodically was amended.
100. For other cases, see, for example, Donna Marianna, (1812) 165 Eng. Rep. 1244 (Adm. Ct.);
101. Fortuna, (1811) 165 Eng. Rep. 1240 (Adm. Ct.);
102. Africa, (1810) 12 Eng. Rep. 156 (P.C.);
103. and Anne, (1810) 12 Eng. Rep. 158 (P.C.).
104. See also Helfman, supra note 62 (discussing cases tried before the vice admiralty court in Sierra Leone).
105. See LLOYD, supra note 23, at 62-63 (describing Portuguese diplomatic protests in 1813 related to capture of Portuguese-flagged slaving vessels off the coast of Africa).
106. See DONALD R HICKEY, THE WAR OF 1812: A FORGOTTEN CONFLICT 11-13 (1989).
107. Data on known slave voyages in this and other numerical charts in this Article are derived from David Eltis et al., The Trans-Atlantic Slave Trade: A Revised and Enlarged Database (forthcoming 2008) [hereinafter Eltis, Slave Trade Database]. The online version of the database is a much-expanded version of the database that was published in 1999.
108. See DAVID ELTIS ET AL., THE TRANS-ATLANTIC SLAVE TRADE: A DATABASE ON CD-ROM (Cambridge Univ. Press, rel. 1999). This chart was created from 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. The author is extremely grateful to David Eltis for providing the most recent version of the database for use in this Article. For a discussion of this data, and its limits,
109. see infra text accompanying notes 208-210.
110. See HOWARD, supra note 57, at 4-6.
111. See ELTIS, supra note 10, at 109.
112. See Le Louis, (1817) 165 Eng. Rep. 1464 (Adm. Ct.).
113. Id. at 1473.
114. Id. at 1475.
115. Id. at 1482. For an interesting similar turn-about in American case law, compare Justice Story's decision upholding an American ship's capture of a French slave vessel on Somersettype 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).
116. See Drescher, supra note 35, at 159;
117. see also Additional Article to the Definitive Treaty of Peace Between Great Britain and France, Gr. Brit.-Fr., May 30, 1814, 3 B.S.P. 890 (acknowledging that the slave trade is "repugnant to the principles of natural justice and of 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).
118. Drescher, supra note 35, at 159.
119. See id. at 159-60;
120. see also House of Commons, TIMES (London), June 7, 1814, at 2 (describing the reaction to Lord Castlereagh's presentation of the peace treaty).
121. See HOCHSCHILD, supra note 9, at 316-17;
122. Drescher, supra note 35, at 160;
123. Nelson, supra note 11, at 194 (noting that more than six hundred petitions from various towns and associations were submitted to Parliament in July 1814).
124. See Drescher, supra note 35, at 161.
125. See id. at 164 (quoting Letter from Arthur Wellesley, Duke of Wellington, to Viscount Castlereagh (June 17, 1814); Letter from Arthur Wellesley, Duke of Wellington, to Viscount Castlereagh (July 6, 1814)).
126. See Address of the House of Commons to the Prince Regent of Great Britain (May 3,1814), in 3 B.S.P. 893, 893-94 (1815-16) (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");
127. see also Nelson, supra note 11, at 194.
128. BETHELL, supra note 5, at 12.
129. Castlereagh was apparently quite susceptible to public opinion. He ended up committing suicide in 1822, partly in reaction to his perception of his unpopularity. See generally J.A.R MARRIOTT, CASTLEREAGH: THE POLITICAL LIFE OF ROBERT, SECOND MARQUEES OF LONDONDERRY (1936).
130. Letter from Viscount Castlereagh to the Duke of Wellington (Aug. 6, 1814)1 in 3 B.S.P. 891, 893 (1815-16).
131. Letter from the Duke of Wellington to Viscount Castlereagh (Aug. 25, 1814), in 3 B.S.P. 901, 902 (1815-16).
132. Letter from Viscount Castlereagh to the Duke of Wellington (Oct. 4, 1814), in 3 B.S.P. 907, 907 (1815-16).
133. Letter from the Duke of Wellington to Viscount Castlereagh (Nov. 5, 1814), in 3 B.S.P. 913, 913 (1815-16).
134. Convention Between Great Britain and the Netherlands Relative to the Dutch Colonies; Trade with the East and West Indies art. VIII, Gr. Brit.-Neth., Aug. 13, 1814, 2 B.S.P. 370, 374-75 (promising to forbid subjects from "taking any share whatsoever in such inhuman Traffic"). Sweden, too, was persuaded to enter into a treaty banning the trade, but Sweden was not a major maritime power.
135. See supra note 11 and accompanying text.
136. Treaty of Peace and Amity Between His Britannic Majesty and the United States of America art. X, Gr. Brit.-U.S., Dec. 24, 1814, 2 B.S.P. 357, 364.
137. Letter from Sir Henry Wellesley to Viscount Castlereagh (June 17, 1814), in 3 B.S.P. 920 (1838).
138. Letter from Sir Henry Wellesley to Viscount Casdereagh (July 6, 1814), in 3 B.S.P. 920 (1838).
139. Letter from Sir Henry Wellesley to Viscount Castlereagh (Aug. 25, 1814), in 3 B.S.P. 926 (1838).
140. Letter from Sir Henry Wellesley to Viscount Castlereagh (Sept. 20, 1814), in 3 B.S.P. 931 (1838).
141. Letter from Sir Henry Wellesley to Viscount Castlereagh (Oct. 23, 1814), in 3 B.S.P. 932 (1838).
142. Letter from Earl Bathurst to Sir Henry Wellesley (Nov. 11, 1814), in 3 B.S.P. 934 (1838).
143. See BETHELL, supra note 5, at 7-9.
144. Convention Between Great Britain and Portugal Relative to the Indemnification of Portuguese Subjects for Certain Detained Slave-Trade Vessels, Gr. Brit.-Port., Jan. 21, 1815, 2 B.S.P. 345-48.
145. Treaty Between Great Britain and Portugal, for the Restriction of the Portuguese Slave Trade; and for the Annulment of the Convention of Loan of 1809, and Treaty of Alliance of 1810, Gr. Brit.-Port., Jan. 22, 1815, 2 B.S.P. 348-55.
146. See generally Jerome Reich, The Slave Trade at the Congress of Vienna-A Study in English Public Opinion, 53 J. NEGRO HIST. 129 (1968).
147. See generally BRITISH DIPLOMACY 1813-1815: SELECT DOCUMENTS DEALING WITH THE RECONSTRUCTION OF EUROPE (C.K. Webster ed., 1921)
148. [hereinafter BRITISH DIPLOMACY];
149. 10 CORRESPONDENCE, DISPATCHES, AND OTHER PAPERS OF VISCOUNT CASTLEREAGH, SECOND MARQUEES OF LONDONDERRY 213-61 (Charles William Vane ed., London, William Shoberl 1852);
150. HILDE SPIEL, THE CONGRESS OF VIENNA: AN EYEWITNESS ACCOUNT (Richard H. Weber trans., Chilton Book Co. 1968) (1966).
151. See TIM CHAPMAN, THE CONGRESS OF VIENNA: ORIGINS, PROCESSES AND RESULTS 60-61 (1998).
152. See id. at 61.
153. Letter from Viscount Castlereagh to the Earl of Liverpool (Sept. 28, 1815), in BRITISH DIPLOMACY, supra note 106, at 383.
154. See CHAPMAN, supra note 107, at 61-62.
155. See Letter from Viscount Castlereagh to the Earl of Liverpool (Nov. 21, 1814), in BRITISH DIPLOMACY, supra note 106, at 233-35;
156. see also Reich, supra note 105, at 135-36.
157. Reich, supra note 105, at 139-40 (quoting delegates to the Declaration of the Powers on the Abolition of the Slave Trade (Feb. 8, 1815), in 32 PARLIAMENTARY DEBATES 200-01 (T.C. Hansard ed., London 1816)).
158. See Martha Putney, The Slave Trade in French Diplomacy from 1814 to 1815, 60 J. NEGRO HIST. 411, 424-25 (1975).
159. See id. at 426.
160. See id. at 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), Feb. 7, 1817, at 2.
161. See Answers from Sierra Leone to the Queries of Viscount Castlereagh (April 1817), in 6 B.S.P. 38, 45 (1818-19).
162. Id. (emphasis added).
163. Treaty of Amity, Commerce and Navigation, U.S.-U.K., Nov. 19, 1794, 8 Stat. 116.
164. See Convention Relative to the Claims of the Subjects of the Allied Powers upon France art. V, Nov. 20, 1815, 3 B.S.P. 315, 321-26;
165. see also Letter from Viscount Castlereagh to the Duke de Richelieu (Oct. 27, 1818), in 6 B.S.P. 59 (1818-19) (noting that the provisions forjudge and arbitrator were like those in a previous convention between Great Britain and France for adjudicating private claims);
166. Memorandum of the British Government, enclosed in Letter from Viscount Castlereagh to Earl Bathurst (Nov. 28, 1818), in 6 B.S.P. 77, 83 (1818-19) (similar).
167. See infra notes 122-126 and accompanying text.
168. Treaty for the Abolition of the Slave Trade arts. III-IV, Gr. Brit.-Spain, Sept. 23, 1817, 4 B.S.P. 33, 36-37
169. [hereinafter Anglo-Spanish Treaty of 1817]. 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), Oct. 13, 1817, at 2.
170. British diplomats would not let their Spanish and Portuguese counterparts 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 Letter from Viscount Palmerston to Lord Howard de Walden (Apr. 20, 1839), in CORRESPONDENCE WITH FOREIGN POWERS RELATING TO THE SLAVE TRADE, class B, at 71, 76-78, in 17 BRITISH PARLIAMENTARY PAPERS (photo, reprint, Irish Univ. Press 1968) (1839).
171. Anglo-Spanish Treaty of 1817, supra note 121, art. I.
172. Id. art. II.
173. Anglo-Portuguese Treaty of 1817, supra note 2, art. II.
174. Anglo-Spanish Treaty of 1817, supra note 121, 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.
175. See infra text accompanying note 132.
176. 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 [hereinafter Regulation for the Mixed Commissions], appended to Anglo-Spanish Treaty of 1817, supra note 121.
177. Id. pmbl.
178. Multilateral negotiations regarding the slave trade also continued for several years. At the Congress of Aix-la-Chapelle in 1818, the Russian government pushed for a permanent international 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 audiorities over all States." Memorandum of the British Government (enclosure 5), enclosed in Letter from Viscount Castlereagh to Earl Bathurst (Nov. 23, 1818), in 6 B.S.P. 65, 79 (1818-19). In its most ambitious iterations such an organization would have criminal as well as civil jurisdiction over persons engaged in the illegal slave trade and would have at its disposal an international naval force with the right to visit and search ships flying all flags. Id. 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 thought it might be more feasible to treat slave traders as pirates, subject to trial in national legal systems Id.
179. 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.
180. See, e.g., Regulation for the Mixed Commissions, supra note 127, art. II.
181. Id. art. III.
182. See, e.g., Letter from Oct. Temple & H.W. Macauley, Comm'rs at Sierra Leone, to Viscount Palmerston (June 30, 1834), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 63, in 14 BRITISH PARLIAMENTARY PAPERS (photo, reprint, Irish Univ. Press 1968) (1835-36) (reporting the death of a Brazilian judge);
183. Letter from H.W. Macaulay, Comm'r at Sierra Leone, to Viscount Palmerston (Aug. 14, 1834), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 8, in 14 BRITISH PARLIAMENTARY PAPERS (photo, reprint, Irish Univ. Press 1968) (1835-36) ("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);
184. Letter from J. de Aranjo Ribeiro to the Duke of Wellington (Dec. 18, 1834), in CORRESPONDENCE WITH FOREIGN POWERS RELATING TO THE SLAVE TRADE, class B, at 37, in 14 BRITISH PARLIAMENTARY PAPERS (photo, reprint, Irish Univ. Press 1968) (1835-36) (reporting the appointment of a new Brazilian judge at Sierra Leone, approximately six months after the death of the preceding judge);
185. Letter from W. Fergusson & M.L. Melville, Comm'rs at Sierra Leone, to Earl of Aberdeen (Jan. 23, 1842), in CORRESPONDENCE WITH BRITISH COMMISSIONERS RELATING TO THE SLAVE TRADE, class A, at 10, in 23 BRITISH PARLIAMENTARY PAPERS (photo, reprint, Irish Univ. Press 1969) (1843) (reporting the death of a judge);
186. Letter from Jos. T. Crawford, Acting Comm'r at Havana, to Viscount Palmerston (July 17, 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, at 88, in 34 BRITISH PARLIAMENTARY PAPERS (photo, reprint, Irish Univ. Press 1969) (1847-48) (reporting the death of a judge).
187. For example, of the 109 cases heard by the Anglo-Brazilian court at Sierra Leone, only twenty-eight were decided with 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 arbitrator selected voted with the judge from their own nation. See Return of Vessels Adjudicated in the British and Brazilian Court of Mixed Commission at Sierra Leone, enclosed in Letter from James Hook & N.W. MacDonald, Comm'rs at Sierra Leone, to Viscount Palmerston (Apr. 6, 1847), in CORRESPONDENCE WITH BRITISH COMMISSIONERS AT SIERRA LEONE, HAVANA, RIO DE JANEIRO, SURINAM, CAPE OF GOOD HOPE, JAMAICA, LOANDA, AND BOAVISTA, PROCEEDINGS OF BRITISH VICE-ADMIRALTY COURTS, AND REPORTS OF NAVAL OFFICERS, RELATING TO THE SLAVE TRADE, 1847-48, class A, at 22-30, in 34 BRITISH PARLIAMENTARY PAPERS (photo, reprint, Irish Univ. Press 1968) (1847-48).
188. The Brazilian judges' absences were intermittent, as was the court's caseload. Brazilian judges did not 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 id. with Letter from Oct. Temple & H.W. Macaulay, Comm'rs at Sierra Leone, to Viscount Palmerston (June 30, 1834), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANIERO, AND SURINAM, RELATING TO THE SLAVE TRADE, 1835, class A, at 63, in 14 BRITISH PARLIAMENTARY PAPERS (photo, reprint, Irish Univ. Press 1968) (1835-36) (reporting the death of a Brazilian judge who had served for six years, in which few cases were decided).
189. See Letter From George Canning, Sec'y, to Comm'rs at Sierra Leone (Nov. 26, 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, at 5, in 9 BRITISH PARLIAMENTARY PAPERS (photo, reprint, Irish Univ. Press 1969) (1823-24).
190. For example, some of the Spanish judges at the court in Havana were prominent landowners and businessmen. See LUIS MARTINEZ-FERNANDEZ, FIGHTING SLAVERY IN THE CARIBBEAN: THE LIFE AND TIMES OF A BRITISH FAMILY IN NINETEENTH-CENTURY HAVANA 47 (1998).
191. See Letter from H.W. Macaulay, Comm'r at Sierra Leone, to Viscount Palmerston (Aug. 14, 1834), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANIERO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 8, in 14 BRITISH PARLIAMENTARY PAPERS (photo, reprint, Irish Univ. Press 1968) (1835-36) (describing 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);
192. Letter from M.L. Melville, Comm'r at Sierra Leone, to the Earl of Aberdeen (Feb. 2, 1842), in CORRESPONDENCE WITH BRITISH COMMISIONERS RELATING TO THE SLAVE TRADE, class A, at 10, in 23 BRITISH PARLIAMENTARY PAPERS (photo, reprint, Irish Univ. Press 1969) (1843) (recording the swearing in of the governor of the colony as acting commissioner following the death of the incumbent).
193. Anglo-Spanish Treaty of 1817, supra note 121, art. IX.
194. Regulation for the Mixed Commissions, supra note 127, art. V ("Instructions for the British and Spanish Ships of War employed to prevent the illicit Traffic in Slaves").
195. Id. 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.
196. Bethell, supra note 3, at 83.
197. See LLOYD, supra note 23, at 83 (describing payments made to the crew of one "fast and successful" ship between 1839 and 1843 as including £2628 for the commander, £1359 for the flag officer, and more than £2000 shared among other crew members).
198. FIRST REPORT FROM THE SELECT COMMITTEE ON SLAVE TRADE, HOUSE OF COMMONS 102 (1848) (testimony of Cdr. Henry James Matson),
199. reprinted in 4 BRITISH PARLIAMENTARY PAPERS (photo, reprint, Irish Univ. Press 1968) (1847-48)
200. [hereinafter FIRST COMMONS REPORT].
201. 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 321 (1849) (testimony of Capt. Joseph Denman),
202. reprinted in 6 BRITISH PARLIAMENTARY PAPERS (photo, reprint, Irish Univ. Press 1968) (1850). Denman was also the son of the Lord Chief Justice, who was an influential abolitionist member of the House of Lords.
203. Regulations for the Guidance of the Commissions Appointed for Carrying Into Effea the Treaties for the Abolition of the Slave Trade 6 (1819) (on file with the British National Archives, F.O. 313/1) [hereinafter 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."); see also Letter from the Earl of Aberdeen to Comm'rs at Havana (Sept. 18, 1828), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANIERO, AND SURINAM, RELATIVE
204. TO THE SLAVE TRADE, class A, at 128, in 12 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1829-31) (instructing that the captain of the captor ship need not be present at the adjudication).
205. See, e.g., Report of the Case of the Portuguese Barque "Maria da Gloria," enclosed in Letter from Wm. Smith & H.W. Macaulay, Comm'rs at Sierra Leone, to Viscount Palmerston (Mar. 31, 1834), in CORRESPONDENCE WITH THE BRITISH COMMISIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANIERO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 32, 37, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1834) (describing the removal of sick Africans from a captured slave vessel and their treatment by a British ship's surgeon). 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."
206. FIRST COMMONS REPORT, supra note 143, at 156-57 (testimony of Cdr. Thomas Francis Birch).
207. See, e.g, Anglo-Spanish Treaty of 1817, supra note 121, Annex, Instructions for the British and Spanish Ships of War Employed To Prevent the Illicit Traffic in Slaves, art. VI; see also Commission Regulations, supra note 145, at 5 ("Form of Certificate of the necessity of Disembarking Slaves from a Captured Vessel").
208. 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 Letter from H.W. Macaulay & R. Doherty, Comm'rs at Sierra Leone, to John Backhouse (Dec. 31, 1838), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, AND RIO DE JANIERO, RELATING TO THE SLAVE TRADE, class A, at 93-94, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press. 1968) (1839) (noting that some slaves died on all ten ships brought in for adjudication, with death tolls ranging from two to thirty-one).
209. See, e.g., Letter from G. Shee to Comm'rs at Sierra Leone (Dec. 9, 1830), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANIERO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 11, in 12 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1829-31) (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);
210. Letter from Robert Hasketh & Frederick Grigg, Comm'rs at Rio, to Hamilton (Dec. 6, 1841), in CORRESPONDENCE WITH SPAIN, PORTUGAL, BRAZIL &C &C, RELATIVE TO THE SLAVE TRADE, class B, at 306, in 23 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1843) (describing concern for expediting proceedings when a ship is captured with slaves onboard). For example, Cdr. Keith Stewart of HMS Ringdove sent one prize toHavana 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 Commander Stewart pronounced the ship "the most miserable craft I ever saw in the shape of a slaver."
211. Letter from Capt. Keidi Stewart to James Kennedy (Jan. 1, 1841), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 178, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842).
212. See, e.g., Letter from William Hamilton to Comm'rs at Sierra Leone (Nov. 13, 1821), in FURTHER PAPERS RELATING TO THE SLAVE TRADE VIZ. CORRESPONDENCE WITH FOREIGN POWERS, AND WITH HIS MAJESTY'S COMMISSIONERS, 1821, 1822, at 72, in 64 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (advising commissioners 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").
213. Letter from George Villiers to Viscount Palmerston (Oct. 14, 1835), in FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class B, at 10, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36) (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").
214. See Letter from George Jackson & Frederick Grigg, Comm'rs at Rio, to Viscount Palmerston (Feb. 12, 1839), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, class A, at 144, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839) (acknowledging that a British vessel would be sent to Rio to house Africans from ships awaiting trial);
215. Letter from J. Kennedy & Campbell J. Dalrymple, Comm'rs at Havana, to Viscount Palmerston (July 1, 1841), in CORRESPONDENCE WITH THE BRITISH COMMISIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM RELATING TO THE SLAVE TRADE, 1842, class A, at 229, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1842) (describing captured slaves put on board HMS Romney in conjunction with commission trials).
216. See, e.g., Regulation for the Mixed Commissions, supra note 127.
217. See Letter from H. S. Fox to Viscount Palmerston (July 24, 1834), in CORRESPONDENCE WITH FOREIGN POWERS, 1835, class B, at 28, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36) (discussing negotiations with the Brazilian government about speeding up operation of the courts);
218. Letter from George Jackson & Fred. Grigg, Comm'rs at Rio, to Viscount Palmerston (June 5, 1841), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANIERO, AND SURINAM RELATING TO THE SLAVE TRADE, 1843, class A, at 333, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1842) (discussing delays in adjudication, based on observance of Brazilian holidays);
219. Letter from W. Fergusson & M.L. Melville, Comm'rs at Sierra Leone, to the Earl of Aberdeen (Jan. 8, 1842), in CORRESPONDENCE WITH BRITISH COMMISSIONERS RELATING TO THE SLAVE TRADE, 1842, class A, at 65, 68, in 23 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1843) (noting that "in no one of the several Mixed Commissions has there been a more prompt adjudication of cases than in the Courts at Sierra Leone").
220. Commission Regulations, supra note 145, at 5.
221. 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);
222. Letter from W. Fergusson & M.L. Melville, Comm'rs at Sierra Leone, to the Earl of Aberdeen (Jan. 8, 1842), in CORRESPONDENCE WITH BRITISH COMMISSIONERS RELATING TO THE SLAVE TRADE, 1842, class A, at 65-68, in 23 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1843) (describing a disagreement with new Brazilian judges about whether to continue the practice of having the registrar take the depositions).
223. 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 Letter from W. Fergusson & M.L. Melville, Comm'rs at Sierra Leone, to the Earl of Aberdeen (Jan. 8, 1842), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, class A, at 65, 67, in 23 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1843) (noting that the "[t]he 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.
224. See, e.g., Letter from George Jackson & Frederick Grigg, Comm'rs at Rio de Janeiro, to Viscount Palmerston (Jan. 22, 1839), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, 1839, class A, at 138, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839) (discussing a disagreement with Brazilian judges about the availability of "embargoes," a form of appeal allowed under local law, in cases heard by the commission);
225. Letter from Marques Lisboa to Viscount Palmerston (Apr. 8, 1839), in CORRESPONDENCE WITH FOREIGN POWERS, 1838-39, class B, at 128, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839) (announcing the decision of the Brazilian government not to allow "embargoes" in Mixed Commission cases).
226. See Letter from W. Fergusson & M.L. Melville, Comm'rs at Sierra Leone, to the Earl of Aberdeen (Jan. 8, 1842), in CORRESPONDENCE WITH BRITISH COMMISSIONERS, 1842, class A, at 65, in 23 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1843).
227. See, e.g., Letter from Alex Finley & Wm. Smith, Comm'rs at Sierra Leone, to the Earl of Aberdeen (May 4, 1830), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANIERO, AND SURINAM, RELATING TO THE SLAVE TRADE, 1830, class A, at 59-60, in 12 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1829-31) (reporting the agreement of British and Brazilian judges in the case of the Emilia).
228. See Judgment Given in the Case of the Spanish Brig Diligente (Oct. 12, 1838), enclosed in Letter from H.W. Macaulay & R Doherty to Viscount Palmerston (Oct. 20, 1838), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, 1838-39, class A, at 17-24, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839) (discussing case law);
229. Letter from Viscount Palmerston to George Jackson & Frederick Grigg, Comm'rs at Rio (Oct. 8, 1834), in CORRESPONDENCE WITH BRITISH COMMISSIONERS, 1835, class A, at 147, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36) (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);
230. Letter from George Jackson & Fred. Grigg, Comm'rs, to Viscount Palmerston (Nov. 10, 1835), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, 1836, class A, at 309-10, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36) (reporting the agreement of the Brazilian government on this point).
231. See, e.g., Report of the Case of the Spanish Schooner "Opposiçao," enclosed in Letter from H.W. Macaulay & R. Doherty, Comm'rs at Sierra Leone, to Viscount Palmerston (Aug. 15, 1838), in CORRESPONDENCE WITH THE BRITISH C OMMISSIONERS, 1838-39, class A, at 6, 9, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839) (condemning as Spanish a ship with a Portuguese flag and papers that was equipped for the slave trade as Spanish, based on the principle "[t]hat 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");
232. Report of the Case of the Brig Diligente (Oct. 12, 1838), enclosed in Letter from H.W. Maculay & R. Doherty, Comm'rs at Sierra Leone, to Viscount Palmerston (Oct. 20, 1838), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, 1838-39, class A, at 13, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839) (condemning as Spanish a Portuguese-flagged ship);
233. Report of the Case of the Schooner Sirse, enclosed in Letter from H.W. Macaulay & R. Doherty, Comm'rs at Sierra Leone, to Viscount Palmerston (Dec. 22, 1838), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, 1838-39, class A, at 26, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839) (same, based on the course-of-trade test).
234. E.g., Letter from Wm. Smith & H.W. Macauley, Comm'rs at Sierra Leone, to Viscount Palmerston (Mar. 22, 1834), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, class A, at 31, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839) (noting that the Court was "reluctantly compelled" to restore the Portuguese ship, the Maria da Gloria, because it was captured south of the equator). Compare Anglo-Spanish Treaty of 1817,
235. supra note 121, art. I,
236. with Anglo-Portuguese Treaty of 1817, supra note 2, art. II.
237. See Treaty Between Great Britain and Portugal, for the Suppression of the Traffic in Slaves art. 5, July 30, 1842, 30 B.S.P. 527 [hereinafter Anglo-Portuguese Treaty of 1842]; Treaty Between Great Britain and Spain, for the Abolition of the Slave Trade art. X, June 28, 1835, 23 B.S.P. 343 [hereinafter Anglo-Spanish Treaty of 1835].
238. See, e.g., Letter from H.W. Macauley & R Doherty, Comm'rs at Sierra Leone, to Viscount Palmerston (Dec. 22, 1838), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, 183839, class A, at 26, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839) (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 Commission found the Sirse to be Spanish based on its course of trade, notwithstanding its Portuguese flag and papers);
239. Letter from M.L. Melville, Comm'r at Sierra Leone, to the Earl of Aberdeen (Dec. 31, 1841), in CORRESPONDENCE WITH BRITISH COMMISSIONERS, 1842, class A, at 29-32, in 23 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842) (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);
240. Letter from M.L. Melville, Comm'r at Sierra Leone, to the Earl of Aberdeen (Dec. 31, 1841), in CORRESPONDENCE WITH BRITISH COMMISSIONERS, 1842, class A, at 60, 61, in 23 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1843) (reporting the case of the Bellona, condemned and found to be Brazilian despite its Portuguese flag).
241. See Explanatory Article to the Treaty Between Great Britain and Spain for the Abolition of the Slave Trade of Sept. 23, 1817, adopted Dec. 10, 1822, 10 B.S.P. 87; Additional Articles to the Convention Between Great Britain and Portugal of July 28, 1817, adopted Mar. 15, 1823, 11 B.S.P. 23.
242. See Anglo-Portuguese Treaty of 1842, supra note 163;
243. Anglo-Spanish Treaty of 1835, supra note 163. Aldiough 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.
244. See, e.g., Return of Vessels Adjudicated by the British and Brazilian Court of Mixed Commission, Established at Sierra Leone, Between the ist Day of July and the 31st Day of December, 1840, enclosed in Letter from H.W. Macauley & R. Doherty, Comm'rs at Sierra Leone, to Viscount Palmerston (Nov. 15, 1839), in CORRESPONDENCE WITH BRITISH COMMISSION RELATIVE TO THE SLAVE TRADE, class A, at 123, in 20 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press. 1969)(1841) (reporting several cases of condemnation of ships with no slaves onboard at the time of capture).
245. See, e.g., Report of the Case of the Paquete do Sul, enclosed in Letter from George Jackson & Fred. Grigg to Viscount Palmerston (Jan. 30, 1834), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, 1835, class A, at 133, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839).
246. See, e.g., Report of the Case of the Schooner Sirse, enclosed in Letter from H.W. Macaulay & R Doherty to Viscount Palmerston (Dec. 22, 1838), in CORRESPONDENCE WITH THE BRITISH COMMISSIONER, 1838-39, class A, at 26-32, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839).
247. See supra note 134 (noting that of twenty-eight cases decided with both judges present in the Anglo-Brazilian court at Sierra Leone, in eighteen cases the judges were unanimous while in ten they disagreed, with the British judge voting for condemnation and the Brazilian judge for acquittal in the cases where there was disagreement; in all ten of the cases the arbitrator voted with the judge from his nation). The judges often referred to the courts' unanimity in easy cases. See, e.g., Letter from George Jackson & Frederick Grigg, Comm'rs at Rio, to Viscount Palmerston (Jan. 15, 1839), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, class A, at 132, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839) ("[T]he Brazilian Commissary Judge joined Her Majesty's Judge, without any difficulty, in this sentence [of condemnation.]");
248. Letter from George Jackson & Fred. Grigg, Comm'rs at Rio, to Viscount Palmerston (June 30, 1841), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM RELATING TO THE SLAVE TRADE, class A, at 344-45, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1842) (noting that the judges were unanimous that a ship captured in a territorial creek was not within the court's jurisdiction).
249. See supra note 134.
250. See, e.g., Letter from George Jackson & Fred. Grigg, Comm'rs at Rio, to Viscount Palmerston (Oct. 31, 1840), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANIERO, AND SURINAM RELATING TO THE SLAVE TRADE, at 279, 281, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1842) (reporting a case in which the British arbitrator sided with the Brazilian judge).
251. See, e.g., Letter from H.T. Kilbee, Comm'r at Havana, to George Canning, Sec'y (July 31, 1824), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, class A, at 68, in 10 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1825-26);
252. see also Bethell, supra note 3, at 85-86.
253. Letter from W.G. Ouseley to Viscount Palmerston, (Feb. 25, 1839), in CORRESPONDENCE WITH FOREIGN POWERS RELATING TO THE SLAVE TRADE, class B, at 139, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839) (describing the removal of Joaquim Feliciano Gomez). The Portuguese judges at Loanda in 1844-45 were also notorious participants in the slave trade.
254. ELTIS, supra note 10, at 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."
255. MARTINEZ-FERNÁNDEZ, supra note 136, at 47. OneBritish commissioner at Rio was also criticized for incompetence and possible corruption.
256. BETHELL, supra note 5, at 201-02.
257. MARTINEZ-FERNÁNDEZ, supra note 136, at 47.
258. These numbers were calculated from the Revised Trans-Atlantic Slave Trade Database using the "FATE" variable.
259. BETHELL, supra note 5, at 194-98.
260. See, e.g., Regulation for the Mixed Commission, supra note 127, art. VII. The allocation of prize money to crews was an important way for the navy to increase the pay for naval officers without draining the national treasury.
261. See Bethell, supra note 3, at 88 n.33.
262. See LLOYD, supra note 23, at 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.
263. See Letter from Viscount Palmerston to Lord Howard de Walden (Feb. 14, 1839), in CORRESPONDENCE WITH FOREIGN POWERS, class B, at 42, 43, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839) (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);
264. Letter from the Earl of Aberdeen to Comm'rsat Rio (Sept. 21, 1841), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANIERO, AND SURINAM RELATING TO THE SLAVE TRADE, class A, at 355-56, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1842) (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 relate that Lord Palmerston had rejected their suggestion diat 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."
265. Letter from W. Fergusson & M.L. Melville, Comm'rs at Sierra Leone, to Viscount Palmerston (Sept. 23, 1841), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANIERO, AND SURINAM RELATING TO THE SLAVE TRADE, class A, at 31, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1842). Later, the mixed courts were authorized to hold slave crews in custody until they could be transferred to national authorities for trial.
266. See Letter from George Frere & Frederic R. Surtees, Comm'rs at Cape of Good Hope, to Viscount Palmerston (Oct. 31, 1846), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, HAVANA, RIO DE JANIERO, SURINAM, CAPE OF GOOD HOPE, JAMAICA, LOANDA, AND BOAVISTA, PROCEEDINGS OF BRITISH VICE-ADMIRALTY COURTS, AND REPORTS OF NAVAL OFFICERS, RELATING TO THE SLAVE TRADE, class A, at 113, in 34 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1847-48)
267. (acknowledging the opinion of British law officers that under the Anglo-Portuguese Treaty of 1842, supra note 163, art. XII, slave crews could be detained in custody by the Mixed Commission until they could be turned over to their own governments for trial);
268. Letter from Ildefonso Leopoldo Bayard to Alfredo Duprat, Portuguese Comm'r (May 22, 1847), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, HAVANA, RIO DE JANIERO, 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, at 130, in 34 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1847-48) (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").
269. See FIRST COMMONS REPORT, supra note 143, at 15-16 (testimony of Viscount Palmerston).
270. See REGISTRY OF SLAVES: SIERRA LEONE (on file with the British National Archives, F.O. 315/31) (original log books).
271. See, e.g., Letter from John Samo & Fred. Grigg, Comm'rs at Rio, to the Earl of Aberdeen (Sept. 23, 1842), in CORRESPONDENCE WITH BRITISH COMMISSIONERS RELATING TO THE SLAVE TRADE, class A, at 291-94, in 23 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1843) (describing a case in which British and Brazilian judges disagreed about whether the claimant was entitled to indemnity).
272. See BETHELL, supra note 5, at 130 ("British commissioners were specifically instructed that in reaching a verdict they should never lose sight of their judicial character, and that they should 'uniformly 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 (Feb. 19, 1819))).
273. See, e.g., Commission Regulations, supra note 145.
274. See, e.g., Letter from Viscount Palmerston to Comm'rs at Rio (Mar. 22, 1839), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, AND RIO DE JANEIRO RELATING TO THE SLAVE TRADE, 1839, class A, at 136, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839) (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");
275. see also Letter from the Earl of Aberdeen to Comm'rs at Sierra Leone (Dec. 28, 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, at 19, in 12 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1829-31) (similar);
276. Letter from the Foreign Office to Comm'rs at Sierra Leone (Dec. 6, 1837) (on file with the British National Archives, F.O. 315/4, at 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.").
277. See, e.g., Letter from George Lansing, Comm'r at Sierra Leone, to the Foreign Office (Sept. 25, 1822) (on file with the British National Archives, F.O. 315/1, at 241) (disapproving of the court's decision in the case of the Spanish schooner Rosalia);
278. Letter from Viscount Palmerston to Comm'rs at Rio (Oct. 8, 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, at 147, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36) (stating that the commission was wrong to release the Maria da Gloria because, although it had a Portuguese flag and papers, it was owned by amerchant 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).
279. See, e.g., Letter from George Canning, Sec'y, to Comm'rs at Sierra Leone (May 29, 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, at 27, in 10 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1825-26) (transmitting the opinion of the King's Advocate on what the commissioners ought to do in the case of the Fabiana);
280. Letter from Viscount Palmerston to Comm'rs at Rio de Janeiro (Mar. 26, 1836), in CORRESPONDENCE WITH BRITISH COMMISSIONERS RELATING TO THE SLAVE TRADE AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, 1835, class A, at 314, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36) (transmitting the opinion of the King's Advocate-General on issues in two cases);
281. Letter from John Samo & Fred. Grigg, Comm'rs at Rio de Janeiro, to the Earl of Aberdeen (Sept. 20, 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, at 291, in 23 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1843) (asking for instructions).
282. See Bethell, supra note 3, at 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).
283. See, e.g., Letter from Viscount Palmerston to Comm'rs at Havana (Aug. 11, 1841), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS RELATING TO THE SLAVE TRADE, 1841, class A, at 217, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1842) ("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.").
284. See, e.g., Letter from George Canning, Sec'y, to Comm'rs at Sierra Leone (Mar. 16, 1825), 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, at 57, in 10 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1825-26) (transmitting "Two Dispatches from the Consul General at Rio de Janeiro, on the subject of the Brazilian Government regulations on the tonnage of slave" ships).
285. See, e.g., Letter from Viscount Palmerston to G.W.F. Villiers (Oa. 6, 1834), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, 1834, class B, at 12, in 14 BRITISH PARLIAMENTARY PAPERS (Irish Univ. Press 1968) (1835-36) (transmitting reports from the courts at Havana and Sierra Leone to a British diplomat in Madrid).
286. See, e.g., Letter from W.G. Ouseley to Capt. Herbert, R.N. (Jan. 24, 1839), in CORRESPONDENCE WITH SPAIN, PORTUGAL, AND BRAZIL, RELATIVE TO THE SLAVE TRADE, 1839, class B, at 130, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839) (communicating information, via the local British consul, from commissioners to captains about the interpretation of a treaty regarding captures of ships without slaves onboard).
287. Generally see 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.
288. See Howard Hazen Wilson, Some Principal Aspects of British Efforts To Crush the African Slave Trade, 1807-1929, 44 AM. J. INT'L L. 505, 509 n.22 (1950).
289. See Bethell, supra note 3, at 82.
290. 197- See id. at 83.
291. See id.
292. See infra text accompanying note 343.
293. See BETHELL, supra note 5, at 92.
294. See, e.g., Letter from Henry T. Kilbee, Comm'r at Havana, to George Canning (Dec. 30, 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, at 140, in 10 BRITISH PARLIAMENTARY PAPERS (Irish Univ. Press 1968) (1825-26) (reporting that the emancipation of the slaves by the mixed commission "has excited considerable sensation among the inhabitants of this place" who had demanded that the local government invalidate the commission's verdict);
295. see also Bethell, supra note 3, at 83-84.
296. See Bethell, supra note 3, at 84.
297. REGISTRY OF SLAVES: SIERRA LEONE, supra note 182.
298. See Bethell, supra note 3, at 89.
299. See infra Figure 1.
300. 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 Revised 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.
301. These estimates are consistent with those of other scholars. See ELTIS, supra note 10, at 97-99 (calculating that one in five ships involved in the traffic were intercepted and condemned in either the mixed courts or in national courts);
302. LLOYD, supra note 23, at 117 (estimating that one in four slaving vessels was captured).
303. These reports appear in the annual volumes of British Foreign and State Papers and the British Parliamentary Papers: Slave Trade Series.
304. See supra note 2.
305. See Eltis, Slave Trade Database, supra note 73.
306. 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.
307. 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, at 1, in 6 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1850)
308. [hereinafter LORDS REPORT 1850];
309. 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, at 1, in 6 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1850)
310. [hereinafter LORDS REPORT 1849].
311. See FIRST COMMONS REPORT, supra note 143, at 2-3 (testimony of Viscount Palmerston) (stating that suppression efforts had not increased the cruelty of the slave trade); id. at 23 (testimony of Joseph Denman) (stating that they had).
312. See id. at 95 (questions of William Hutt, Chairman of the Select Committee).
313. SECOND REPORT FROM THE SELECT COMMITTEE ON SLAVE TRADE, 1848, at 15 (testimony of William Smith), in 4 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press1968) (1847-48)
314. [hereinafter SECOND COMMONS REPORT]. Smith did believe that entering into treaties with local chiefs to increase legitimate commerce in Africa would reduce the supply of slaves. Id. at 18. He also believed that it would be necessary to keep some warships on the coast to enforce the treaties and protect legitimate commerce. Id. at 20.
315. LORDS REPORT 1849, supra note 211, at 128 (testimony of Commodore Charles Hotham);
316. see also LLOYD, supra note 23, at 120-22.
317. 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, supra note 211, at 110 (testimony of Commodore Charles Hotham). 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 that "[d]uring 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, commodores did not seek the opinions of their inferior officers. Id. at 115-16.
318. LLOYD, supra note 23, at 112-13.
319. FIRST COMMONS REPORT, supra note 143, at 4 (testimony of Viscount Palmerston).
320. Id. at 10. This figure included ships condemned by British vice admiralty courts as well as the mixed commissions.
321. See ELTIS, supra note 10, at 262.
322. See SECOND COMMONS REPORT, supra note 214, at 66 (testimony of Capt. George Manuel); id. at 99 (testimony of Thomas Berry Horsfall); id. at 162 (testimony of John Bramley Moore).
323. Id. at 99 (testimony of Thomas Berry Horsfall).
324. During his stay in Havana, Turnbull was reportedly involved with plans by free blacks for insurrection. ELTIS, supra note 10, at 118.
325. LORDS REPORT 1850, supra note 211, at 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 . . . . ").
326. FIRST COMMONS REPORT, supra note 143, at 52-53 (testimony of Capt. Edward Harris Butterfield). Many of Butterfield's prizes, however, were taken to the vice admiralty court in St. Helena. Id. at 57-58.
327. Id. at 58-59.
328. SECOND COMMONS REPORT, supra note 214, at 2 (testimony of Capt. Christopher Wyvill).
329. FIRST COMMONS REPORT, supra note 143, at 95 (testimony of Cdr. Henry James Matson).
330. See id. at 2-3 (testimony of Viscount Palmerston); id. at 23 (testimony of Capt. Joseph Denman).
331. 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 ist of June and the 14dl of December 1827, enclosed in Letter from the Earl of Dudley to Viscount Granville (Jan. 25, 1828), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class B, at 123-24, in 12 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1829-31) (listing twelve boardings).
332. See infra text accompanying notes 341-343.
333. See Eltis, supra note 52, at 136 tbl.V.
334. See infra Figure 3;
335. see also Lawrence C. Jennings, France, Great Britain, and the Repression of the Slave Trade, 1841-1845, 10 FRENCH HIST. STUD. 101, 105, 123 (1977) (discussing France's suspension of the "right to search").
336. See Nelson, supra note 11, at 203-04.
337. Letter from President James Monroe to the U.S. Senate - Slave Trade Convention with Gr. Brit. (May 21, 1824), in THE POLITICAL WRITINGS OF JAMES MONROE 328, 330 (James P. Lucier ed., 2001).
338. Act of May 15, 1820, ch. 113, 3 Stat. 600.
339. See BETTY FLADELAND, MEN AND BROTHERS: ANGLO-AMERICAN ANTISLAVERY COOPERATION 125-44(1972).
340. Letter from Viscount Palmerston to Earl Granville (June 3, 1834), in CORRESPONDENCE WITH FOREIGN POWERS RELATING TO THE SLAVE TRADE, class B, at 52-53, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36) (discussing negotiations with the United States on the treaty, including U.S. objection to a clause regarding searches on the coast of America, which the British and French then offered to remove);
341. Letter from Sir Charles Vaughan to Viscount Palmerston (Aug. 28, 1834), in CORRESPONDENCE WITH FOREIGN POWERS RELATING TO THE SLAVE TRADE, class B, at 88, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36) (reporting on negotiations).
342. 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 Letter from John Jeremie & Walter W. Lewis, Comm'rs at Sierra Leone, to John Backhouse (Dec. 31, 1840), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM RELATING TO THE SLAVE TRADE, class A, at 57-58, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1842) (noting the condemnation of the Plant and the Clara as Spanish ships, despite their flying of American colors).
343. See Agreement Between Cdr. William Tucker of HMS Wolverene and Lt. John S. Paine of the USS Grampus (Mar. 11, 1840), in CORRESPONDENCE WITH FOREIGN POWERS NOT PARTIES TO CONVENTIONS GIVING RIGHT OF SEARCH OF VESSELS SUSPECTED OF THE SLAVE TRADE, class D, at 76, 76-77, in 20 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1841); Letter from Viscount Palmerston to A. Stevenson (Aug. 5, 1841), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class D, at 255, 255-57, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1842) (describing an agreement entered into between the British and American commanding officers off the coast of Africa).
344. See, e.g., United States v. Morris, 39 U.S. (14 Pet.) 464 (1840) (discussing an American criminal prosecution arising out of the capture of the Butterfly by HMS Dolphin);
345. Letter from Consul James Buchanan to Viscount Palmerston (June 10, 1841), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class D, at 319, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842) (discussing the case of the Butterfly);
346. Letter from the Earl of Aberdeen to Consul James Buchanan (Sept. 30, 1841), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class D, at 323, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842) (discussing American courts' condemnation of the Butterfly and the Catherine). In two notable cases in 1839 - that 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 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.
347. See Letter from John Jeremie & Walter W. Lewis, Comm'rs at Sierra Leone, to Viscount Palmerston (Dec. 31, 1840), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 51-57, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842).
348. See Letter from Cdr. William Tucker to More O'Ferrall, HMS Wolverene (Mar. 16, 1841), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class D, at 246, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842) (reporting a meeting with the USS Cyane, and noting that "I still more and very deeply regret that the American men-of-war remain so very short a time on the coast" though he believed that "[t]he 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).
349. See Letter from A. Stevenson to Viscount Palmerston (Aug. 9, 1841), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class D, at 258, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842) (noting, in relation to the agreement between the British and American commanders to which Palmerstonalluded, 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").
350. See, e.g., Letter from A. Stevenson to the Earl of Aberdeen (Sept. 10, 1841), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class D, at 263, 266, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842).
351. See, e.g., Letter from Viscount Palmerston to A. Stevenson (Aug. 5, 1841), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, 1842, class D, at 255, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842); Letter from A. Stevenson to Viscount Palmerston (Aug. 9, 1841), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, 1842, class D, at 258, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842);
352. Letter from Viscount Palmerston to A. Stevenson (Aug. 27, 1841), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, 1842, class D, at 260, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842);
353. Letter from A. Stevenson to the Earl of Aberdeen (Sept. 10, 1841), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, 1842, class D, at 263, 266, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842);
354. Letter from the Earl of Aberdeen to A. Stevenson (Oct. 13, 1841), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, 1842, class D, at 267, 269, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842) (arguing that the "rights which have been mutually conceded to each other by the Governments of Great Britain and France, can scarcely be incompatible with the honour and independence of any State upon the face of the earth.").
355. See Letter from Sir John Barrow to the Commanders in Chief and Senior Officers at the Cape of Good Hope, Coast of Africa, West Indies, and Brazils (Dec. 7, 1841), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, 1842, class D, at 279, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842) (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 is reason to suspect a vessel is 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 London). 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,
356. supra note 143, at 23 (testimony of Capt. Joseph Denman).
357. See Webster-Ashburton Treaty, U.S.-Gr. Brit., Aug. 10, 1842, 8 Stat. 572.
358. HOWARD, supra note 57, at 202, 214-35.
359. See, e.g., Letter from Comm'rs at Sierra Leone to Viscount Palmerston (Jan. 24, 1842), in CORRESPONDENCE WITH BRITISH COMMISSIONERS RELATING TO THE SLAVE TRADE, 1842, class A, at 33, in 23 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842).
360. See FIRST COMMONS REPORT, supra note 143, at 8 (testimony of Viscount Palmerston);
361. ARTHUR F. CORWIN, SPAIN AND THE ABOLITION OF SLAVERY IN CUBA, 1817-1886, at 96 (1967);
362. see also Letter from Rear-Admiral Campbell to Mr. Wood (Dec. 14, 1835), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, 1835, class B, at 40, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835) (noting that traffic is carried on "to a most extraordinary extent" by Spanish and Portuguese vessels).
363. FIRST COMMONS REPORT, supra note 143, at 6 (testimony of Viscount Palmerston);
364. see also, e.g., Letter from Lord Stuart de Rothesay to Viscount Palmerston (Nov. 26, 1830), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, 1829-31, class B, at 165, in 12 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1829-31) (reporting criminal sentences against slave traders by the French court in Guadalupe).
365. FIRST COMMONS REPORT, supra note 143, at 17 (testimony of Viscount Palmerston).
366. Id. at 6.
367. Id. at 7. However, other witnesses, including Sir Charles Hotham, who had commanded the Africa Squadron, viewed the nonparticipation of the United States as a more significant problem. Id. (responding to Hotham's testimony).
368. Of course, data about the flag used are unavailable for many voyages. This Chart 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
369. 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.
370. Van Niekerk, supra note 6, at 413.
371. Id. at 432. For the history of the negotiations behind the 1862 treaty, see A. Taylor Milne, The Lyon-Seward Treaty of 1862, 38 AM. HIST. REV. 511 (1933).
372. See FIRST COMMONS REPORT, supra note 143, at 32 (testimony of Capt. Joseph Denman).
373. Letter from W.M. Smith & H.W. Macaulay, Comm'rs at Sierra Leone, to Viscount Palmerston (Apr. 9, 1834), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 45-46, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36). In this case, the British commissioners sat alone, due to the vacancy of the Portuguese seats on the commission.
374. Letter from Viscount Palmerston to Lord Howard de Walden (Oct. 7, 1834), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class B, at 18, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36).
375. Letter from W.M. Smith & H.W. Macaulay, Comm'rs at Sierra Leone, to Viscount Palmerston (Apr. 9, 1834), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 45-46, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36).
376. Letter from W.M. Smith & Edward W. H. Schenbey, Comm'rs at Sierra Leone, to Viscount Palmerston (Jan. 6, 1834), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 1, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36).
377. See Letter from the Earl of Aberdeen to Comm'rs at Havana (Apr. 24, 1830), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 91, in 12 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1829-30) (reporting Spain's refusal of a proposed equipment clause).
378. Letter from George Villiers to Viscount Palmerston (Sept. 9, 1834), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class B, at 11, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36).
379. Letter from George Villiers to Viscount Palmerston (June 28, 1835), in CORRESPONDENCE WITH THE FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class B, at 8, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835).
380. Letter from W.S. Macleay & Edward W.H. Schenbey, Comm'rs at Havana, to Viscount Palmerston (Jan. 10, 1836), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 212, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36).
381. See Letter from Viscount Palmerston to the Baron de Moncorvo (Apr. 30, 1836), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class B, at 46-54, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36);
382. Letter from Viscount Palmerston to Lord Howard de Walden (Apr. 20, 1839), in CORRESPONDENCE WITH FOREIGN POWERS RELATING TO THE SLAVE TRADE, class B, at 71, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839).
383. See BETHELL, supra note 5, at 166-79;
384. see also Letter from H.W. Macaulay & R Doherty, Comm'rs at Sierra Leone, to Viscount Palmerston (Sept. 2, 1839), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS RELATING TO THE SLAVE TRADE, 1839-40, class A, at 111-12, in 18 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839-40) (enclosing a "Report of the Case of the Brig Emprehendedor");
385. Letter from George Jackson & Frederick Grigg, Comm'rs at Rio, to Viscount Palmerston (Sept. 23, 1839), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS RELATING TO THE SLAVE TRADE, class A, at 258, in 18 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1839-40) (enclosing a report on the case of the Maria Carlota).
386. For the suggestion about jurisdiction over slaves on land, see LORDS REPORT 1850, supra note 211, at 71 (testimony of David Turnbull). For suggestions of criminal punishment, either in national courts or in mixed courts,
387. see, for example, FIRST COMMONS REPORT, supra note 143, at 5 (testimony of Viscount Palmerston); id. at 34-35 (testimony of Capt. Joseph Denman);
388. id. at 122 (testimony of John Carr, Chief Justice of Sierra Leone); and id. at 166 (testimony of Cdr. Thomas Francis Birch).
389. Compare Letter from W. Fergusson & M.L. Melville, Comm'rs at Sierra Leone, to Viscount Palmerston (Sept. 23, 1841), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 31, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1842) (acknowledging Palmerston's instruction that there was no legal authority for the detention of crews),
390. with Letter from Geo. Frere, Jr., & Frederic R. Surtees, Comm'rs at Cape of Good Hope, to Viscount Palmerston (Oct. 31, 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, at 113, in 34 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1847-48)
391. (acknowledging the opinion of British law officers mat under Article XII of the AngloPortuguese Treaty of 1842, supra note 163, slave crews could be detained in custody by the mixed commission until they could be turned over to their own governments for trial),
392. and Letter from Ildefenso Leopoldo Bayard to Alfredo Duprat, Portuguese Comm'r (May 22, 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, at 130, in 34 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1847-48) (instructing the Portuguese commissioner that slave crews should be sent to Loanda or Cape Verde and "delivered to the GovernorGenerals, to be dealt with according to law").
393. See supra text accompanying notes 170-176 (discussing the rates of condemnation and acquittal in various courts).
394. Letter from Oct. Temple & H.W. Macauley, Comm'rs at Sierra Leone, to Viscount Palmerston (June 30, 1834), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS, AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 63, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36).
395. Letter from H.T. Kilbee, Comm'r at Havana, to George Canning, Sec'y (July 31, 1824), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANNAH, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 74, in 12 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1825-26).
396. Letter from George Jackson & Frederick Grigg, Comm'rs at Rio, to Viscount Palmerston (Jan. 16, 1839), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, AND RIO DE JANEIRO, RELATING TO THE SLAVE TRADE, class A, at 135-36, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839).
397. See, e.g., FIRST COMMONS REPORT, supra note 143, at 161-62 (testimony of Cdr. Thomas Francis Birch).
398. See infra Section II.C.
399. Letter from Viscount Palmerston to Comm'rs at Havana (July 31, 1841), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 206, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1842).
400. Letter from Walter W. Lewis & L. Hook, Comm'rs at Sierra Leone, to Viscount Palmerston (Apr. 10, 1841), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 78, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1842). Palmerston 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 perjury; 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. Letter from Viscount Palmerston to Lord Howard de Walden (Oct. 7, 1834), in Correspondence with Foreign Powers, Relating to the Slave Trade, class B, at 18, 19, in 14 British Parliamentary Papers (photo. reprint, Irish Univ. Press 1968) (1835-36);
401. see also Letter from Viscount Palmerston to Comm'rs at Rio (Oct. 8, 1834), in Correspondence with the British Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam, Relating to the Slave Trade, class A, at 147, in 14 British Parliamentary Papers (photo. reprint, Irish Univ. Press 1968) (1835-36) (stating that the commission misapplied the law to the facts in releasing the Maria da Gloria).
402. Letter from George Villiers to Don Juan Alvarez y Mendizabal (Mar. 10, 1836), enclosed in Letter from Mr. Villiers to Viscount Palmerston (Mar. 12, 1836), in CORRESPONDENCE WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, 1836, class B, at 20-21, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36).
403. Letter from the Earl of Aberdeen to Comm'rs at Havana (Dec. 15, 1841), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AND WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class A, at 249, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842).
404. See, e.g., Letter from Chris Edwd. Lefroy to the Earl of Dudley (Dec. 13, 1827), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 172, in 12 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1829-31) (discussing the lack of Dutch cruisers assigned to suppress the slave trade in Surinam).
405. See, e.g., Letter from W.S. Macleay to the Earl of Aberdeen (Aug. 19, 1828), in CORRESPONDENCE WITH BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATIVE TO THE SLAVE TRADE, class A, at 147, in 12 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1829-31) (reporting the acquittal of a slave vessel by the Spanish Court of Admiralty in Havana).
406. See, e.g., Letter from the Earl of Aberdeen to Comm'rs at Rio de Janeiro (Sept. 21, 1841), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AND WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class A, at 355-56, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1842) (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).
407. Letter from Comm'rs at Sierra Leone to Viscount Palmerston (Sept. 20, 1841), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AND WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class A, at 31, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1842).
408. FIRST COMMONS REPORT, supra note 143, at 16 (testimony of Viscount Palmerston).
409. Letter from Mr. Fox to Viscount Palmerston (Oct. 15, 1834), in CORRESPONDENCE WITH FOREIGN POWERS RELATING TO THE SLAVE TRADE, class B, at 34, in 14 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1835-36).
410. Id.
411. Letter from Comm'rs at Rio de Janeiro to Viscount Palmerston (July 7, 1841), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AND WITH FOREIGN POWERS, RELATING TO THE SLAVE TRADE, class A, at 354-55, in 21 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1842).
412. See, e.g., Letter from Mr. Turnbull to the Earl of Aberdeen (Dec. 24, 1841), in CORRESPONDENCE WITH SPAIN, PORTUGAL, BRAZIL, Sec., &C., &C., RELATIVE TO THE SLAVE TRADE, class B, at 85-86, in 23 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish
413. Letter from Mr. Turnbull to the Earl of Aberdeen (Dec. 14, 1841), in CORRESPONDENCE WITH SPAIN, PORTUGAL, BRAZIL, &C., &C., RELATIVE TO THE SLAVE TRADE, class B, at 52-60, in 23 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1843).
414. Id. at 54-55.
415. See Letter from J. Kennedy & Campbell J. Dalrymple, Comm'rs at Havana, to Viscount Palmerston (Dec. 4, 1846), in CORRESPONDENCE WITH BRITISH COMMISSIONERS, class A, at 61, in 34 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1847-48)
416. (discussing further removal of emancipados to Jamaica);
417. see also Letter from Viscount Palmerston to Comm'rs at Havana (Mar. 15, 1841), in CORRESPONDENCE WITH THE BRITISH COMMISSIONERS AT SIERRA LEONE, THE HAVANA, RIO DE JANEIRO, AND SURINAM, RELATING TO THE SLAVE TRADE, class A, at 166, in 21 BRITISH PARLIAMENTARY PAPERS (photo reprint Irish Univ. Press 1969) (1842) (discussing the removal of emancipados to Jamaica);
418. Letter from Mr. Stephen to Viscount Canning (Jan. 25, 1842), in CORRESPONDENCE WITH FOREIGN POWERS, class B, at 310, in 23 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1843) (discussing a plan to remove emancipated Africans from Rio).
419. See supra text accompanying note 211.
420. See generally FIRST COMMONS REPORT, supra note 143.
421. See Letter from Governor Doherty to John Russell (Dec. 7, 1840), in CORRESPONDENCE RELATIVE TO SLAVE TRADE AT THE GALLINAS (London, W. Clowes & Sons 1841), available at http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_dat=xri: hcpp-us&rft_dat=xri:hcpp:rec:1841-019917.
422. Buron v. Denman, (1848) 154 EHg. Rep. 450, 455-56 (Exch. Div.).
423. See FIRST COMMONS REPORT, supra note 143, at 32 (testimony of Capt. Joseph Denman).
424. See LORDS REPORT 1850, supra note 211, at 59-60 (testimony of David Turnbull).
425. See BETHELL, supra note 5, at 185.
426. See id.; see also FIRST COMMONS REPORT, supra note 143, at 84 (testimony of Cdr. Henry James Matson).
427. 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 off-shore cruising pursued by the navy for many years. FIRST COMMONS REPORT, supra note 143, at 22 (testimony of Capt. Joseph Denman). Several other naval officers agreed.
428. See, e.g., id. at 154 (testimony of Cdr. Thomas Francis Birch). On the other hand, some witnesses were skeptical.
429. See LORDS REPORT 1849, supra note 211, at 114-17 (testimony of Commodore Charles Hotham);
430. SECOND COMMONS REPORT, supra note 214, at 16 (testimony of William Smith).
431. 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.
432. For a list of forty treaties entered into with local chiefs, see THIRD REPORT FROM THE SELECT COMMITTEE ON SLAVE TRADE, HOUSE OF COMMONS (1848), at 224-25, reprinted in 4 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1847-48) [hereinafter THIRD COMMONS REPORT].
433. See Letter from Lord Howard de Walden to Viscount Palmerston (Apr. 28, 1839), in 27 B.S.P. 588 (1856) (enclosing a list of twenty-five pieces of correspondence between Britain and Portugal between 1837 and 1839 on negotiations for a new treaty).
434. Letter from Viscount Palmerston to Lord Howard de Walden (Apr. 27, 1839), in CORRESPONDENCE WITH FOREIGN POWERS, class B, at 91, 91-100, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839).
435. Draft of a Note To Be Presented by Lord Howard de Walden to the Portuguese Government, enclosed in Letter from Viscount Palmerston to Lord Howard de Walden (Apr. 20, 1839), in CORRESPONDENCE WITH FOREIGN POWERS, class B, at 71, 78, in 17 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1839);
436. see also Wilson, supra note 195, at 513.
437. BETHELL, supra note 5, at 155.
438. Id.
439. Palmerston's Act, 1839, 2 & 3 Vict., c. 73 (Eng.).
440. BETHELL, supra note 5, at 161.
441. Id. at 162-63.
442. Id. at 164-65.
443. For examples of ships condemned as Spanish, see supra note 164.
444. See Anglo-Portuguese Treaty of 1842, supra note 163.
445. See Letter from George Frere, Jr., & Frederic R. Surtees, Comm'rs at Cape of Good Hope, to Viscount Palmerston (Oct. 31, 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, at 113, in 34 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1847-48);
446. Letter from Senhor Bayard to Alfredo Duprat, Portuguese Comm'r (May 22, 1847), enclosed in Letter from George Frere, Jr., & Frederic R. Surtees, Comm'rs at Cape of Good Hope, to Viscount Palmerston (Nov. 11, 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, at 129, in 34 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1847-48).
447. Letter from George Jackson & Edmund Gabriel, Comm'rs at Loanda, to Viscount Palmerston (Apr. 30, 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, at 169, in 34 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1847-48) (noting the Portuguese prosecutor'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").
448. See Letter from George Jackson & Edmund Gabriel, Comm'rs at Loanda, to Viscount Palmerston (Feb. 6, 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, at 147, in 34 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1969) (1847-48) (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).
449. FIRST COMMONS REPORT, supra note 143, at 21 (testimony of Capt. Joseph Denman);
450. see also LORDS REPORT 1849, supra note 211, at 123 (testimony of Commodore Charles Hotham).
451. See supra Figure 3.
452. The Anglo-Portuguese Treaty of 1817, supra note 2, which was incorporated by the Convention Between Great Britain and Brazil, for the Abolition of the African Slave Trade, Nov. 23, 1826, 14 B.S.P. 609, only authorized the mixed courts for a period of fifteen years after abolition; since the Brazilian 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, Sept. 11, 1817, 4 B.S.P. 115 (providing a fifteen-year expiration period after the complete abolition of the trade).
453. See BETHELL, supra note 5, at 247-53.
454. Convention Between Great Britain and Brazil, for the Abolition of the African Slave Trade art. 1, Nov. 23, 1826, 14 B.S.P. 609; Wilson, supra note 195, at 518.
455. See supra Figure 3.
456. THIRD COMMONS REPORT, supra note 302, at 226-29.
457. SECOND COMMONS REPORT, supra note 214, at 37 (testimony of Jose E. Cliffe, M.D.).
458. See BETHELL, supra note 5, at 281.
459. See, e.g., LORDS REPORT 1850, supra note 211, at 225 (testimony of Robert Hesketh).
460. BETHELL, supra note 5, at 325-41;
461. LLOYD, supra note 23, at 142-47.
462. BETHELL, supra note 5, at 313-15.
463. Eltis, supra note 52, at 114-15 tbl.I.
464. HOWARD, supra note 57, at 47.
465. Id.
466. ELTIS, supra note 10, at 200.
467. See Letter from N.W. Macdonald & John Carr, Comm'rs at Sierra Leone, to Viscount Palmerston (Dec. 12, 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, at 37, in 34 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1847-48).
468. Id.
469. See Letter from J. Kennedy & Campbell J. Dalrymple, Comm'rs at Havana, to Viscount Palmerston (Jan. 7, 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, at 69, in 34 BRITISH PARLIAMENTARY PAPERS (photo. reprint, Irish Univ. Press 1968) (1847-48) (noting that no slave vessels arrived or departed from Cuba).
470. See FIRST COMMONS REPORT, supra note 143, at 5 (testimony of Viscount Palmerston).
471. ELTIS, supra note 10, at 201.
472. Id. at 202.
473. Harral E. Landry, Slavery and the Slave Trade in Atlantic Diplomacy, 1850-1861, 27 J. S. HIST. 184 (1961).
474. Id. at 196, 201-03.
475. Const. of the Confederate States of America art. I, § 9, cl. 1 (1861).
476. President James Buchanan, Speech to the Senate and House of Representatives (May 19, 1860), in 5 A COMPILATION OF MESSAGES AND PAPERS OF THE PRESIDENTS: 1789-1897, supra note 39, at 593-595.
477. Milne, supra note 257, at 511-14.
478. ELTIS, supra note 10, at 218-22.
479. Milne, supra note 257, at 514.
480. See supra note 8 and accompanying text.
481. See CASSESE, supra note 8, at 281-82;
482. Eric A. Posner & John C. Yoo, Judicial Independence in International Tribunals, 93 CAL. L. REV. 1, 9 (2005) (describing the Permanent Court of Arbitration in 1899 as one of "the first tentative steps towards the ideal of formal international adjudication").
483. See CASSESE, supra note 8, at 454.
484. Jan Herman Burgers, The Road to San Francisco: The Revival of the Human Rights Idea in the Twentieth Century, 14 HUM. RTS. Q.447, 447-48 (1992).
485. For examples of this approach, see LYNN HUNT, INVENTING HUMAN RIGHTS 181, 196, 201-03 (2007),
486. which argues that nationalism, socialism, and communism led to the declining popularity of human rights until the aftermath of World War II, and JACK MAHONEY, THE CHALLENGE OF HUMAN RIGHTS: ORIGIN, DEVELOPMENT, AND SIGNIFICANCE 21-37 (2007), which skips from early-nineteenth-century philosophers to the aftermath of the Second World War, 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.
487. Burgers, supra note 349, at 448.
488. See HUNT, supra note 349, at 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.").
489. Burgers, supra note 349, at 449-64 (discussing nongovernmental organizations' advocacy of international human rights standards as well as the League of Nations' treatment of human rights issues in the 1920s and 1930s). PAUL GORDON LAUREN, THE EVOLUTION OF INTERNATIONAL HUMAN RIGHTS (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 intellectual and social origins of the use of international law as a mechanism for protecting human rights.
490. See CLARK M. EICHELBERGER, ORGANIZING FOR PEACE: A PERSONAL HISTORY OF THE UNITED STATES 269-73 (1977).
491. See CAROL ANDERSON, EYES OFF THE PRIZE: THE UNITED NATIONS AND THE AFRICAN AMERICAN STRUGGLE FOR HUMAN RIGHTS, 1944-1955, at 38-43 (2003).
492. See DU BOIS, supra note 18.
493. For example, another NGO represented at the U.N. Convention was the National League of Women Voters. See DOROTHY B. ROBINS, EXPERIMENT IN DEMOCRACY: THE STORY OF U.S. CITIZEN ORGANIZATIONS IN FORGING THE CHARTER OF THE UNITED NATIONS 209 (1971). The National League of Women Voters was the offspring of the National American Woman Suffrage Organization, see League of Women Voters, Our History, http://www.lwv.org/ AM/Template.cfm?Seaion=Our_History&Template=/TaggedPage/TaggedPageDisplay. cfm&TPLID=36&ContentID=1501 (last visited Nov. 26, 2007), which was in turn a product of the merger of earlier women's suffrage organizations which had close ties to abolitionist organizations.
494. See Judith Resnik, Sisterhood, Slavery, and Sovereignty: Transnational Antislavery Work and Women's Rights Movements in the United States During the Twentieth Century, in WOMEN'S RIGHTS AND TRANSATLANTIC ANTISLAVERY IN THE ERA OF EMANCIPATION 19, 22 (Kathryn Kish Sklar & James Brewster Stewart eds., 2007).
495. FIRST COMMONS REPORT, supra note 143, at 19 (testimony of Viscount Palmerston).
496. Id.
497. Id.
498. See, e.g., Posner & Yoo, supra note 347, at 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").
499. Although there was some initial suggestion that the International Criminal Court should have jurisdiction over terrorism, this suggestion was discarded. See Richard J. Goldstone & Janine Simpson, Evaluating the Role of the International Criminal Court as a Legal Response to Terrorism, 16 HARV. HUM. RTS. J. 13, 14-15 (2003).
500. 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 3, 6 (Philip Alston ed., 2005).
501. See Elisabeth Bumiller, Evangelicals Sway White House on Human Rights Issues Abroad, N. Y. TIMES, Oct. 26, 2003, at Al.
502. See LOUIS HENKINET AL., HUMAN RIGHTS 73 (1999) (stating that "[u]ntil 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" (emphasis omitted) as "the first formal assertion of an international law of human rights").
503. See, e.g., Peter Singer, What Should a Billionaire Give-and What Should You?, N.Y. TIMES, Dec. 17, 2006, § 6 (Magazine), at 60;
504. of. Noah Feldman, Cosmopolitan Law?, 116 YALE L.J. 1022 (2007) (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").
505. UNITED NATIONS, THE MILLENNIUM DEVELOPMENT GOALS REPORT 4 (2006), available at http://mdgs.un.org/unsd/mdg/Resources/Static/Products/Progress2006/ MDGReport2006. pdf.
506. Id. at 5.
507. Id. at 14.
508. Id. at 11.
509. Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 CAL. L. REV. 1823 (2002);
510. Posner & Yoo, supra note 347, at 14.
511. Ironically, a similar point was made by Cdr. Henry James Matson of 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 barracoons 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. FIRST COMMONS REPORT, supra note 143, at 85 (testimony of Cdr. Henry James Matson).
512. See generally JOHN HAGAN, JUSTICE IN THE BALKANS: PROSECUTING WAR CRIMES IN THE HAGUE TRIBUNAL (2003).
513. 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 religious and social movements, not of the influence of cosmopolitan networks. See Kaufmann & Pape, supra note 20. 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.
514. FIRST COMMONS REPORT, supra note 143, at 20 (testimony of Viscount Palmerston).
515. Anglo-Spanish Treaty of 1817, supra note 121, pmbl.
516. KRASNER, supra note 20, at 108.
517. See, e.g., JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 114-17 (2005) (discussing the abolition of slave trade, though not the antislavery courts, from a rational-choice perspective).
518. See Posner & Yoo, supra note 347, at 14-18 (arguing that international adjudication is possible when "states have a surplus to divide," when "the present value of the payoffs from continued cooperation 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"). Posner 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 id. at 26 & tbl.1. The mixed courts also do not fit neatly into the framework for international judicial effectiveness proposed by Anne-Marie Slaughter and Laurence Helfer.
519. See Laurence R. Helfer & Anne-Marie Slaughter, Why States Create International Tribunals: A Response to Professors Posner and Yoo, 93 CAL. L. REV. 899 (2005). They were not deeply embedded in national legal systems, like the modern European supranational courts, though there were some connections in both personnel and jurisprudence between the mixed courts and the British vice admiralty courts. See id. at 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 id. In many respects, however, they do support Slaughter and Helfer's more general arguments 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 id. at 945-46. Moreover, the discursive constraints of legal analysis appear to have been real, as demonstrated by the cases like the Maria da Gloria,
520. see sources cited supra note 146, in which British judges voted for acquittal, or cases in which non-British judges easily voted for condemnation.
521. Of. Guzman, supra note 370 (discussing a theory of international law that "explains compliance using a model of rational, self-interested states").
522. 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, 72 U. CHI. L. REV. 469, 476-86 (2005).
523. See generally Peter J. Katzenstein & Nobuo Okawara, Japan, Asian-Pacific Security, and the Case for Analytical Eclecticism, 26 INT'L SECURITY 153, 154 (2001) (arguing "against the privileging of parsimony that has become the hallmark of paradigmatic debates" and noting the advantages of "drawing selectively on different [theoretical] paradigms").
524. BETHELL, supra note 5, at 12.
525. 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 a significant commercial and military maritime presence. Nor is the ICC the equivalent of the antislavery courts without the British; the ICC does, after all, enjoy the support of more than one hundred countries, including the richest and most powerful countries in the European Union.
526. JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT 156 (Susan Dunn ed., Yale Univ. Press 2002) (1762).