In the middle of the nineteenth century, the international law of the sea, although seemingly straight forward, had become the source of a dispute that threatened war between the United States and Britain, a threat that was finally extinguished on the eve of the American Civil War. As do many events of that time, the incident is wrapped up with slavery.
International law consisted of the shared understandings of the sovereign nations of the world as to how nations should conduct themselves in the relations with one another in diplomacy, war and peace and the respective rights and obligations in the dealings between a nation and a citizen of another nation. These understandings generally were not the result of conventions or agreements but were declared and elaborated by various philosophers of law referred to as "publicists". And although nations could vary the terms of international law between themselves by mutual treaties, no unilateral declaration by a nation was binding as a matter of international law upon another unless it was consented to, and no such declaration became binding generally as a matter of international law unless it was consented to by all. (The notion that international law might be "binding" is somewhat nebulous inasmuch as all nations were in theory co-equal, and no one of them had authority to sit in judgment over another, although the power to sit in judgment after a conquest was a different matter.)
According to international law, the oceans beyond a nation's territorial waters (regarded as three nautical miles from the shore in the mid-nineteenth century) were highways that were open to the free passage of all and, with a material exception, subject to the policing authority of none. The exception had to do with pirates. In time of peace a pirate was any vessel that attacked another vessel at sea. in time of war, however, any vessel that held authority of a nation at war was permitted to attack the vessels of an enemy – these consisted of naval vessels, generally referred to as "cruisers", and private vessels that held letters of marque issued by the government, called "privateers" – but all other attackers were pirates.
As the previous paragraph indicates, the existence of a state of war between nations altered the rules of international law at sea. The nations at war were deemed "belligerents" that possessed certain rights and obligations with respect to the other nations of the world. Neutral nations retained the right to conduct trade with the belligerent nations, but if a belligerent chose to blockade an enemy's ports, a vessel of any nationality – whether an enemy or a neutral – that was captured while trying to violate the blockade was forfeit to the captor. Moreover, belligerents possessed the right called "visitation and search" to stop vessels at sea, determine their nationality and inspect their cargoes. Enemy vessels encountered at sea by a cruiser or privateer could be captured or sunk. If the neutral vessel carried contraband of war that was bound for an enemy port, it could be seized; and if it carried non-contraband cargo that was owned by the enemy, it, too, could be seized.
The nascent United States derived a substantial portion of its national income from international trade, and its national government earned substantially all of its revenue from tariffs on such trade. With the start of the French Revolutionary War and the Napoleonic War the British and French navies not only put extreme pressure upon the merchant vessels of the neutral United States (as did other nations of Europe), but Britain and France also enacted trade restrictions that attempted to prevent a neutral merchantman from conducting trade with their respective enemies.
In addition, given Britain's large navy, she was constantly short of crewmen and historically met this need with press gangs. Captains of British cruisers regularly stopped American merchant vessels at sea and removed from them crewmen whom they alleged were either deserters from the British Navy or men of British birth – the claim that a sailor was American by birth or was a naturalized American were generally ignored. In one notorious incident, HMS Leopard confronted the USS Chesapeake off the coast of Virginia in 1807 and demanded that she submit to a search for British deserters. When the Chesapeake refused, the Leopard fired on her, killing 3 and wounding 18. The Chesapeake capitulated, and the Leopard removed four crewmen.
The impositions upon American trade and the impressment of American nationals were among the reasons why the United States declared war on Britain in 1812. The timing was unfortunate for the Americans. Napoleon invaded Russia in 1812; the Russians burned the countryside in front of the advancing French armies, and when the French reached Moscow, the Russians burned the city; the French Army was all but destroyed in the wintertime retreat from Moscow; and Napoleon capitulated in 1814. These circumstances permitted Britain to deploy forces to chastise America, which had only a limited professional army and a tiny navy. A peace was concluded at the end of 1814 that restored the parties to their positions and possessions as they existed at the start of the war.
In entirely separate developments, both the United States and Britain acted to outlaw the international slave trade in 1807. Slavery had been lawful and practiced in all the American colonies when they rebelled against Britain in 1776, and the Constitution the Americans adopted in 1789 acknowledged the existence of slavery and forbade Congress from enacting any law to restrict the importation of slaves until 1808. In 1807 Congress enacted a law making international slave trafficking illegal from as of January 1, 1808. Britain's Parliament also enacted a law prohibiting the international slave trade in 1807 – slavery was not practiced in Britain, but it was employed in Britain's possessions in the West Indies, where it was abolished by act of the British Parliament in the 1830s.
The British Navy began patrolling the coast of West Africa in 1808, but its presence there did not become significant until after 1818. The British Navy captured 1,600 slave ships and freed 150,000 Africans between 1808 and 1860. In the absence of a war, international law did not give the British Navy the right to interfere with any vessel not suspected of engaging in piracy, and although several nations, including the United States, did equate the slave trade with piracy, the view was not held so universally as to constitute a principle of international law. Accordingly, Britain negotiated a number of treaties with other nations that created rights to inspect one another's merchant vessels for evidence of the slave trading and to permit seizing the vessel if evidence of slave trafficking was found. Consistent with the practice under international law, the treaties provided that prize courts would rule on the legality of the capture with the proceeds of the condemned vessels to be divided among the nations that were party to the treaty and the officers and crew of the capturing vessel. Although the treaties provided that the prize courts were to consist of representatives of both nations, in practice the courts were British.
The United States did not enter into such a treaty, and many vessels engaged in the slave trade either maintained an American registry or flew an American flag as a possible deterrent against being stopped by a British cruiser. In practice British cruisers stopped American flag vessels on the argument that they needed to determine whether the American flag was not just a ruse, and once the stop had been made, they conducted a complete search. Such episodes were insults to America's sovereignty, but if the vessel was innocent of involvement with the slave trade, she was merely delayed in the course of her voyage, which was a relatively minor inconvenience. American vessels engaged in the slave trade were induced to destroy the evidence of their nationality and were condemned in the prize court as nationless outlaw vessels – the United States had made engaging in the slave trade a capital crime, and although no one was hanged for that crime until 1862, the threat was an inducement to cooperate. The captured crew was put ashore, and the vessel, having become an apparently nationless outlaw, was taken to a prize court for condemnation.
In 1842 the United States and Britain entered into the Webster Ashburton treaty that was intended to resolve a number of issues between the two nations, including suppression of the slave trade. (Although not included in the treaty, Britain agreed privately to cease the impressment of sailors from American ships.) The treaty committed both nations to employ their navies "to enforce, separately and respectively, the laws, rights, and obligations, of each of the two countries, for the suppression of the slave trade". Although the Americans saw the treaty as an assertion that the American Navy would police American vessels with respect to the slave trade, the British interpreted it as a concession that American vessels could be stopped by British cruisers to determine whether the claim of nationality was authentic.
The British believed that they had effectively suppressed the slave trade by the early 1850s, but the diversion of the forces away from such duties during the Crimean War (1853-1856) permitted its resurgence.
In December 1857 Lord Napier, the British minister to the United States, sent a lengthy letter to General Lewis Cass, the Secretary of State under President James Buchanan, chiding the United States for its failure to fulfill its policing obligations under the Webster Ashburton Treaty. In this letter he asserted that the British retained the right to visit American vessels. In January 1858 Lord Napier sent a second letter to General Cass advising him that the British had learned of the formation of a company in Cuba called "Expedition of Africa" (or "Expedition por Africa") that was backed by a wealthy family and was planning to use vessels flying the American flag to import slaves to Cuba. Slavery was lawful in Cuba, and although Spain agreed to prohibit international slave trafficking, enforcement was lax, and Cuba remained an active destination for slave ships.
Not coincidentally, the Democratic Party platform upon which President Buchanan was elected in 1856 called for the annexation of Cuba, and each of President Buchanan's annual messages to Congress recommended that the United States acquire Cuba.
In April 1858 General Cass responded to Lord Napier, with a refutation of Britain's claimed right to visit American vessels based upon the widely accepted interpretation of international law that the right of visitation and search did not exist in times of peace. He concluded by saying, "I am instructed by the President to inform your lordship that while he is determined to execute the treaty of 1842 with fidelity and efficiency, he is not prepared, under existing circumstances, to enter into any new stipulations on the subject of the African slave trade."
Apparently the United States did not take any action with respect to the information about the slave trafficking enterprise being organized in Cuba, but the British government directed its cruisers to act against the slave trade in those waters. They seized one American vessel that eventually was condemned as a slaver, and they stopped and searched a number of other American vessels, in some cases by firing a cannon or a musket to compel obedience to their orders. Articles in the New York Tribune on May 19 and 20, 1858, referred to nine incidents of American vessels being stopped and searched.
Forcibly stopping and searching American vessels – some of them traveling between points on the American coast – on America's doorstep raised a storm of outrage. Ship owners and merchants tried to organize a protest committee in a meeting at Delmonico's in New York City, but they were unable to select a chairman. The Senate Committee on Foreign Relations issued an angry report that concluded with the recommendation that American Navy vessels be sent to the area with orders "to protect all vessels of the United States on the high seas from search or detention by the vessels of war of any other nation."
The British government backpedaled quickly and agreed that nothing in the Webster Ashburton Treaty abrogated the principles of international law as General Cass had recited in his letter. In his State of the Union message delivered to Congress in December 1858, President Buchanan reported, "The claim has been abandoned in a manner reflecting honor on the British Government and evincing a just regard for the law of nations, and can not fail to strengthen the amicable relations between the two countries."
The British government suggested that some alternate means might be agreed upon to confirm a vessel's nationality, and they invited the Americans to make a proposal, which the Americans declined to do, although they offered to consider a British proposal. A British proposal had not been received by the time of the President's State of the Union message, but the President warned that "A strong opinion is, however, expressed that the occasional abuse of the flag of any nation is an evil far less to be deprecated than would be the establishment of any regulations which might be incompatible with the freedom of the seas."
The upshot was that the honor of the American flag was upheld, and under it Americans could with greater security pursue the illegal business of trafficking internationally in slaves.
International law consisted of the shared understandings of the sovereign nations of the world as to how nations should conduct themselves in the relations with one another in diplomacy, war and peace and the respective rights and obligations in the dealings between a nation and a citizen of another nation. These understandings generally were not the result of conventions or agreements but were declared and elaborated by various philosophers of law referred to as "publicists". And although nations could vary the terms of international law between themselves by mutual treaties, no unilateral declaration by a nation was binding as a matter of international law upon another unless it was consented to, and no such declaration became binding generally as a matter of international law unless it was consented to by all. (The notion that international law might be "binding" is somewhat nebulous inasmuch as all nations were in theory co-equal, and no one of them had authority to sit in judgment over another, although the power to sit in judgment after a conquest was a different matter.)
According to international law, the oceans beyond a nation's territorial waters (regarded as three nautical miles from the shore in the mid-nineteenth century) were highways that were open to the free passage of all and, with a material exception, subject to the policing authority of none. The exception had to do with pirates. In time of peace a pirate was any vessel that attacked another vessel at sea. in time of war, however, any vessel that held authority of a nation at war was permitted to attack the vessels of an enemy – these consisted of naval vessels, generally referred to as "cruisers", and private vessels that held letters of marque issued by the government, called "privateers" – but all other attackers were pirates.
As the previous paragraph indicates, the existence of a state of war between nations altered the rules of international law at sea. The nations at war were deemed "belligerents" that possessed certain rights and obligations with respect to the other nations of the world. Neutral nations retained the right to conduct trade with the belligerent nations, but if a belligerent chose to blockade an enemy's ports, a vessel of any nationality – whether an enemy or a neutral – that was captured while trying to violate the blockade was forfeit to the captor. Moreover, belligerents possessed the right called "visitation and search" to stop vessels at sea, determine their nationality and inspect their cargoes. Enemy vessels encountered at sea by a cruiser or privateer could be captured or sunk. If the neutral vessel carried contraband of war that was bound for an enemy port, it could be seized; and if it carried non-contraband cargo that was owned by the enemy, it, too, could be seized.
The nascent United States derived a substantial portion of its national income from international trade, and its national government earned substantially all of its revenue from tariffs on such trade. With the start of the French Revolutionary War and the Napoleonic War the British and French navies not only put extreme pressure upon the merchant vessels of the neutral United States (as did other nations of Europe), but Britain and France also enacted trade restrictions that attempted to prevent a neutral merchantman from conducting trade with their respective enemies.
In addition, given Britain's large navy, she was constantly short of crewmen and historically met this need with press gangs. Captains of British cruisers regularly stopped American merchant vessels at sea and removed from them crewmen whom they alleged were either deserters from the British Navy or men of British birth – the claim that a sailor was American by birth or was a naturalized American were generally ignored. In one notorious incident, HMS Leopard confronted the USS Chesapeake off the coast of Virginia in 1807 and demanded that she submit to a search for British deserters. When the Chesapeake refused, the Leopard fired on her, killing 3 and wounding 18. The Chesapeake capitulated, and the Leopard removed four crewmen.
The impositions upon American trade and the impressment of American nationals were among the reasons why the United States declared war on Britain in 1812. The timing was unfortunate for the Americans. Napoleon invaded Russia in 1812; the Russians burned the countryside in front of the advancing French armies, and when the French reached Moscow, the Russians burned the city; the French Army was all but destroyed in the wintertime retreat from Moscow; and Napoleon capitulated in 1814. These circumstances permitted Britain to deploy forces to chastise America, which had only a limited professional army and a tiny navy. A peace was concluded at the end of 1814 that restored the parties to their positions and possessions as they existed at the start of the war.
In entirely separate developments, both the United States and Britain acted to outlaw the international slave trade in 1807. Slavery had been lawful and practiced in all the American colonies when they rebelled against Britain in 1776, and the Constitution the Americans adopted in 1789 acknowledged the existence of slavery and forbade Congress from enacting any law to restrict the importation of slaves until 1808. In 1807 Congress enacted a law making international slave trafficking illegal from as of January 1, 1808. Britain's Parliament also enacted a law prohibiting the international slave trade in 1807 – slavery was not practiced in Britain, but it was employed in Britain's possessions in the West Indies, where it was abolished by act of the British Parliament in the 1830s.
The British Navy began patrolling the coast of West Africa in 1808, but its presence there did not become significant until after 1818. The British Navy captured 1,600 slave ships and freed 150,000 Africans between 1808 and 1860. In the absence of a war, international law did not give the British Navy the right to interfere with any vessel not suspected of engaging in piracy, and although several nations, including the United States, did equate the slave trade with piracy, the view was not held so universally as to constitute a principle of international law. Accordingly, Britain negotiated a number of treaties with other nations that created rights to inspect one another's merchant vessels for evidence of the slave trading and to permit seizing the vessel if evidence of slave trafficking was found. Consistent with the practice under international law, the treaties provided that prize courts would rule on the legality of the capture with the proceeds of the condemned vessels to be divided among the nations that were party to the treaty and the officers and crew of the capturing vessel. Although the treaties provided that the prize courts were to consist of representatives of both nations, in practice the courts were British.
The United States did not enter into such a treaty, and many vessels engaged in the slave trade either maintained an American registry or flew an American flag as a possible deterrent against being stopped by a British cruiser. In practice British cruisers stopped American flag vessels on the argument that they needed to determine whether the American flag was not just a ruse, and once the stop had been made, they conducted a complete search. Such episodes were insults to America's sovereignty, but if the vessel was innocent of involvement with the slave trade, she was merely delayed in the course of her voyage, which was a relatively minor inconvenience. American vessels engaged in the slave trade were induced to destroy the evidence of their nationality and were condemned in the prize court as nationless outlaw vessels – the United States had made engaging in the slave trade a capital crime, and although no one was hanged for that crime until 1862, the threat was an inducement to cooperate. The captured crew was put ashore, and the vessel, having become an apparently nationless outlaw, was taken to a prize court for condemnation.
In 1842 the United States and Britain entered into the Webster Ashburton treaty that was intended to resolve a number of issues between the two nations, including suppression of the slave trade. (Although not included in the treaty, Britain agreed privately to cease the impressment of sailors from American ships.) The treaty committed both nations to employ their navies "to enforce, separately and respectively, the laws, rights, and obligations, of each of the two countries, for the suppression of the slave trade". Although the Americans saw the treaty as an assertion that the American Navy would police American vessels with respect to the slave trade, the British interpreted it as a concession that American vessels could be stopped by British cruisers to determine whether the claim of nationality was authentic.
The British believed that they had effectively suppressed the slave trade by the early 1850s, but the diversion of the forces away from such duties during the Crimean War (1853-1856) permitted its resurgence.
In December 1857 Lord Napier, the British minister to the United States, sent a lengthy letter to General Lewis Cass, the Secretary of State under President James Buchanan, chiding the United States for its failure to fulfill its policing obligations under the Webster Ashburton Treaty. In this letter he asserted that the British retained the right to visit American vessels. In January 1858 Lord Napier sent a second letter to General Cass advising him that the British had learned of the formation of a company in Cuba called "Expedition of Africa" (or "Expedition por Africa") that was backed by a wealthy family and was planning to use vessels flying the American flag to import slaves to Cuba. Slavery was lawful in Cuba, and although Spain agreed to prohibit international slave trafficking, enforcement was lax, and Cuba remained an active destination for slave ships.
Not coincidentally, the Democratic Party platform upon which President Buchanan was elected in 1856 called for the annexation of Cuba, and each of President Buchanan's annual messages to Congress recommended that the United States acquire Cuba.
In April 1858 General Cass responded to Lord Napier, with a refutation of Britain's claimed right to visit American vessels based upon the widely accepted interpretation of international law that the right of visitation and search did not exist in times of peace. He concluded by saying, "I am instructed by the President to inform your lordship that while he is determined to execute the treaty of 1842 with fidelity and efficiency, he is not prepared, under existing circumstances, to enter into any new stipulations on the subject of the African slave trade."
Apparently the United States did not take any action with respect to the information about the slave trafficking enterprise being organized in Cuba, but the British government directed its cruisers to act against the slave trade in those waters. They seized one American vessel that eventually was condemned as a slaver, and they stopped and searched a number of other American vessels, in some cases by firing a cannon or a musket to compel obedience to their orders. Articles in the New York Tribune on May 19 and 20, 1858, referred to nine incidents of American vessels being stopped and searched.
Forcibly stopping and searching American vessels – some of them traveling between points on the American coast – on America's doorstep raised a storm of outrage. Ship owners and merchants tried to organize a protest committee in a meeting at Delmonico's in New York City, but they were unable to select a chairman. The Senate Committee on Foreign Relations issued an angry report that concluded with the recommendation that American Navy vessels be sent to the area with orders "to protect all vessels of the United States on the high seas from search or detention by the vessels of war of any other nation."
The British government backpedaled quickly and agreed that nothing in the Webster Ashburton Treaty abrogated the principles of international law as General Cass had recited in his letter. In his State of the Union message delivered to Congress in December 1858, President Buchanan reported, "The claim has been abandoned in a manner reflecting honor on the British Government and evincing a just regard for the law of nations, and can not fail to strengthen the amicable relations between the two countries."
The British government suggested that some alternate means might be agreed upon to confirm a vessel's nationality, and they invited the Americans to make a proposal, which the Americans declined to do, although they offered to consider a British proposal. A British proposal had not been received by the time of the President's State of the Union message, but the President warned that "A strong opinion is, however, expressed that the occasional abuse of the flag of any nation is an evil far less to be deprecated than would be the establishment of any regulations which might be incompatible with the freedom of the seas."
The upshot was that the honor of the American flag was upheld, and under it Americans could with greater security pursue the illegal business of trafficking internationally in slaves.
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