Smuggling in Defiance of the Slave Trade Ban

The aphorism that politics makes strange bedfellows aptly describes the odd coalition in Congress that passed the 1807 bill outlawing the African slave trade, and should have been a portent that enforcing the law would be problematic. Some of its supporters were motivated by the highest ideals of the Enlightenment and Revolutionary Era. Others were animated by fears of importing more Africans, fears fueled by the revolution in St. Domingue. Others, especially the slaveholding planters of the Upper South, favored banning the trade out of a desire to see the value of their surplus enslaved population rise. The opponents of the bill were no less a curious coalition. New England slave traders, especially the powerful DeWolfs of Rhode Island, joined with the planters of the Deep South to fight the bill's passage.Footnote ³

The bill was forceful on the face of it, but the issue of who would enforce the bill was vague, and enforcement eventually fell to local customs officials, state officials, the Treasury Department, and the virtually nonexistent United States Navy. To make matters worse, the bill allocated no funds for enforcement. Many Deep South customs officers turned a blind eye, and the DeWolfs, who had managed to have one of their own appointed as customs inspector in Bristol, Rhode Island in 1801, brazenly continued their involvement in the illegal trade. President James Madison informed Congress in his annual message of 1810 that “it appears that American citizens are instrumental in carrying on a traffic in enslaved Africans, equally in violation of the laws of humanity, and in defiance of those of their own country.” As late as 1820, Treasury Secretary William Crawford complained “that no particular instructions have ever been given by the Secretary of the Treasury, under the original or supplementary acts prohibiting the introduction of slaves into the United States.” Under those circumstances, it should come as no surprise that smuggling was widespread.Footnote ⁴

Smugglers of enslaved Africans into the United States operated most successfully in the early decades of the nineteenth century when the central government was relatively weak and before the United States had full control of its borders. One successful group of slave traders operated from Charleston, South Carolina during the late eighteenth and early nineteenth centuries, the busiest slave market on the North American mainland before 1808. These men had close ties to British, American, and mixed-race slave-trading families on the Rio Pongo, located on the West African coast near Sierra Leone, where many of them had mixed-race families as well. They were men such as John Fraser, a native of Scotland who moved to Charleston in 1807 to carry on his slave-trading business, but who was forced by the 1808 ban to relocate to Spanish Florida where he purchased plantations, imported hundreds of slaves directly from Africa, and like DeWolf, used his plantations as bases from which to smuggle slaves into the United States. One of Fraser's friends and fellow slave traders was Zephaniah Kingsley, Jr., a native of Charleston, who also relocated to Spanish Florida, purchased plantations, and like Fraser, smuggled slaves into Georgia from there.Footnote ⁵

The illegal slave trade flowing into and out of Fernandina increased dramatically with Thomas Jefferson's Embargo Act and the War of 1812. The booming trade and the weak Spanish military presence invited attacks from adventurers who, under the guise of democratic revolution, gained control of the island. President James Monroe declared in 1817 that the island had been taken over by pirates and that it had become “a channel for the illicit introduction of slaves from Africa into the United States.” The president sent in the navy and the island was quickly taken.Footnote ⁶ David B. Mitchell, who in 1817 gave up his position as governor of Georgia to become an Indian agent in order to profit from that trade, promoted the smuggling operation through the Creek Nation and was forced to resign when his involvement became public in 1821.Footnote ⁷

Texas offered another base for slave traders to smuggle slaves through porous borders into Louisiana and the Deep South. Galveston provided a convenient port from which slaves could be landed on the watery Louisiana coast or smuggled into the flourishing New Orleans market. The best-known smugglers were the Lafitte brothers, Pierre and Jean, who began their operations on Barataria Bay south of New Orleans in 1809 or thereabouts. In 1810, President James Madison used the prevalence of smuggling through Spanish West Florida as a pretext to seize control of Amelia Island, the slave trade depot in Spanish West Florida, and the Lafittes then moved to Galveston Island in 1818. The United States Navy broke up their operation in 1821; however, smuggling continued with traders from Galveston buying Africans in Cuba and transporting them to Texas.Footnote ⁸ Although many of those illegally imported Africans remained in Texas, probably a majority were either sent by ship from Galveston to New Orleans or marched overland into Louisiana where demand and prices were high. That trade grew to such dimensions that British Commissioner Edward Schenley warned that “this port [Havana] and Island will become a vast mart for the trans-shipment of slaves.” The illegal trade flourished after Texas became an independent republic in 1836; only Texas's annexation to the United States in 1845 checked that traffic.Footnote ⁹

Efforts to Police the Trade

Congress revised the Slave Trade Bill in 1818 and again in 1820 in an attempt to address the loopholes in the original bill that allowed smuggling to flourish. The United States attack on Amelia Island prompted Congress to shift the focus of the legislation away from policing the trade toward encouraging informants and cutting off demand, a policy favored by Southern lawmakers. Under the new law, Africans seized from slave ships would be sold and those proceeds, along with any other fines, would go to informants. The bill increased fines levied on slave owners who knowingly purchased illegally imported Africans. This law failed so miserably that Congress moved to revise it in its next session. Congress passed a sweeping new bill in March 1819 with several important innovations. The law authorized the president to send a naval squadron to the coast of Africa to police the trade, and required that half of the proceeds from condemned ships would be paid to the captain and crew as an added inducement. To support the aims of the American Colonization Society, the bill authorized the president to resettle liberated Africans on the African coast under the supervision of an American agent. In another break with the past, Congress allocated $100,000 to enforce the measure. Southern legislators inserted a provision requiring that captured slavers and their crews be returned to their port of departure for trial, a provision that worked to the advantage of the slave traders. In 1820, Congress added participation in the African slave trade to its piracy bill and made it punishable by death, making the United States laws against participation in the African slave trade the world's harshest.Footnote ¹⁰

The debates about revisions to the 1807 law were widely reported in the national press and coincided with reports of Britain's treaties with Spain and Portugal to end the African slave trade in their empires. The United States efforts to better police the trade were linked, then, to the ongoing international effort, led by Great Britain, to end the trade entirely.Footnote ¹¹ As many of those newspaper reports indicated, for many Americans, the United States effort was still tied to that great humanitarian quest. However, there were fortunes to be made in the illegal traffic, slavery itself was still legal in the United States, and British efforts to stop importations of enslaved Africans into Cuba and Brazil were opposed by many planters and government officials in both places, who eagerly supported the booming sugar and coffee industries.

Increasingly, international networks of traders came to rely heavily on their United States partners. The British estimated in 1816 that 60,000 slaves left Africa with 15,000 of those on American ships flying Spanish or Portuguese flags. The American involvement in the trade increased after that date, and the number of enslaved people taken from Africa rose to an estimated 80,000 annually between 1820 and 1830. An American officer reported in 1820 “that he had boarded 20 American vessels in one morning, lying in the port of Gallinas [the Galinhas River in Sierra Leone], and fitted for the reception of slaves … most of the harbors … were visited by an equal number of American vessels, and for the sole purpose of carrying away slaves.” In the same period, one of those American cruisers stopped ten ships within a few days’ time, all clearly slavers, and “although they are evidently owned by Americans, they are so completely covered by Spanish papers that it is impossible to condemn them.” Others involved in policing the trade suggested that half of the ships employed in the slave trade and registered to either Spaniards or Portuguese were in fact American, whereas an 1839 article in the American press maintained that of 177 slave ships arriving in Cuba, five sixths were owned by Americans and fitted out in American ports including New York, Baltimore, New Orleans, and Boston. Profits were enormous; one New York firm had recently received $240,000 for its share in the traffic, the article maintained.Footnote ¹²

In response to the 1819 law, the United States Navy sent a handful of ships to patrol off the West African coast, and between 1819 and 1821 they captured eleven American ships carrying 513 Africans. After 1821, the commanders reported that the number of slave ships flying the American flag on the West African coast had declined drastically, an assessment supported by British officials in Cuba who reported in 1824 that “the American flag had not been employed in carrying on this traffic with the island of Cuba, at least for many years; but … some American Citizens … were engaged in it, under the flag either of France or Spain.”Footnote ¹³ Fueled by the high demand for enslaved labor in Cuba and Brazil, the volume of the slave trade soared. Between 1831 and 1840, more than 222,000 enslaved Africans were imported into Cuba and more than 415,000 were imported to Brazil. Spain's reluctance to enforce its laws against the trade, and its legality in the Portuguese Empire until 1836, meant that slave ships regularly employed those flags regardless of their nation of origin. The British negotiated and pressured the Spanish, Portuguese, and Brazilian governments to better police the trade or to give them more leeway to do so. A major change was the Equipment Clauses that the British negotiated with the Netherlands (1818), France (1831 and 1833), Spain (1833), and Brazil (1835), which allowed the British to seize ships that were fitted out for the slave trade even though there were no enslaved Africans on board.Footnote ¹⁴

In addition, the British were tireless in negotiating treaties with other European powers to give the British Navy the right to stop ships from other nations, board and search them, and condemn them if they were involved in the slave trade. This right of search was absolutely essential to stop the trade. Beginning in 1824, the British signed treaties allowing it with Sweden, France, Denmark, Sardinia, and others, but the United States steadfastly refused to endorse such a measure. By 1839, the United States was the only major player opposed to the right of search. The United States government's refusal to endorse both the Equipment Clause and the right of search explains why the United States's involvement in the illegal trade jumped after 1836. In part, their reluctance to agree to the right of search grew out of the American experience with the British practice of impressment, in which ships from the British Navy stopped American ships and conscripted sailors they deemed to be British into naval service, the primary cause of the War of 1812. In 1820 and 1821 a House of Representatives committee recommended granting Britain the right of search, but that move was opposed by Secretary of State John Quincy Adams as a gross violation of the rights of a free nation. In 1823 the House requested that the president engage in negotiations with European powers to proclaim the slave trade as piracy and to grant a limited right of search to the British, but that search clause was lost in the Senate, where James DeWolf, the notorious slave captain representing Rhode Island, led the opposition. The American press loudly denounced the right of search as a threat to American honor and independence. Secretary of State Adams and his British counterpart, George Canning, agreed on a compromise bill, but Southerners in Congress successfully gutted it with amendments, which the British refused to accept. This failure was as close as the two powers came to an agreement until the United States agreed to the right of search in 1862.Footnote ¹⁵

Britain's successful negotiations with other nations and her assertion of her naval power left the American flag as the only viable cover for the slave trade to continue, and the traders moved quickly to exploit that option. British officials in Havana notified Lord Palmerston in October 1836 that to their “astonishment and regret” two United States vessels, the Anaconda and the Viper, had arrived there “fitted in every particular for the Slave Trade, and took on board a cargo which would at once have condemned as a Slaver any vessel belonging to the nations that are parties to the Equipment Article.” They warned of

The British officials in Havana were right to be concerned, because, as they foresaw, the United States government essentially turned a blind eye to the involvement of American citizens in the trade to Cuba and Brazil, and more importantly President Andrew Jackson appointed Nicholas Trist as United States Consul in Havana.

American Enablers of the Trade and British Responses

Trist, former secretary to Thomas Jefferson, who wed Jefferson's granddaughter, arrived in Havana in 1833, and did all he could do to encourage the illegal slave trade to Cuba and Brazil. According to British officials in Havana, Trist facilitated the slave trade by knowingly giving captains false bills of sale and blank forms that the slave traders used to mask the real ownership of the vessels, allow them to fly the United States flag on their out voyages, and falsify crew manifests. Trist even acted as Portuguese consul, which allowed him to facilitate the trade to Brazil in similar fashion. The British protested loudly and often, but without much effect. James Kennedy, who served as Britain's judge on the Court of Mixed Commission from 1837 to 1852, sparred often with Trist. He reported to Lord Palmerston that Trist held an appointment beyond his “capability or merit,” and denounced his “extravagant and delirious ideals of personal and national importance.”Footnote ¹⁷

After one particularly nasty exchange, Trist responded with a 260 page diatribe in which he defended his own actions, passionately defended slavery and the slave trade, lambasted the British for allowing their merchants to engage in “legitimate” trade with West African slave traders, and condemned British wage labor, which he regarded as more exploitative than slavery. He expressed his dismay that “any crimes or misdemeanors, real or assumed, committed by citizens of the United States in this port, or elsewhere except on British territory” should come before the notice of the British government. He argued that Cubans regarded the prohibition of the African slave trade to the island as “Foreign made and Foreign imposed” and that it was “supported by overwhelming Public Opinion.” Brazilians too, he claimed, regarded the prohibition as an unwelcomed foreign imposition. He explained that before he came to Cuba, he had opposed the African slave trade, a position he traced back to his childhood when he first saw William Wilberforce's famous print showing the way captives were packed into the holds of the slave ships. His experience in Cuba had convinced him, however, that trade was “a positive benefit to its supposed victims.” It was “the instrument of snatching hundreds of Negroes from famine on the Coast of Africa, or from immolation in the hecatombs daily reeking … to Mumbo-Jumbo … bringing negroes from such a state of things in their own country to one where they will have a chance of plenty and a long life.” Far from condemning the trade, he wrote that “every capture of a Slaver is a wrong … Every arrival is an exploit—a victory over the common enemy.”Footnote ¹⁸

Slave traders also found sympathetic American diplomats in Brazil. Although not as blatant in his support as Trist, William Wright, a Maryland native with slave-holding interests, became chargé d'affaires in Rio de Janeiro in 1830 and was known to favor the trade, as were others in the American legation. In sharp contrast to those men, Henry Wise, a Virginian who supported slavery but not the slave trade, and who served as United States minister to Brazil from 1844 to 1847, and George W. Slacum, who served as United States consul in Bahia and in other cities in the country, worked assiduously to stop United States ships from engaging in the illegal trade, but with limited success. In May 1842, for example, Slacum informed Secretary of State Daniel Webster that ten United States ships had sailed from Rio de Janeiro for Africa since November of the previous year, half of those from Baltimore and half from New York City. He had tried to block fraudulent sales, but the slave traders resorted to chartering the ships instead, and he could find no legal means to block them. He made proposals that would have cut off the trade; first, he suggested that any American ship leaving a United States port for Africa should be required to return direct to the United States, and second, he proposed that owners, masters, or agents should be prohibited by law from selling an American vessel deliverable on the African coast, or to sell a vessel while on the African coast.Footnote ¹⁹ Slacum was certainly on target, and these revisions to the laws outlawing the trade would have gone a long way toward curbing United States participation in it, but they fell on deaf ears.

As long as the United States made no effort to intercept American slave-trading vessels, the ships simply flew the American flag under the noses of the British, who were powerless to stop them. Slave traders from any number of American ports still active in the trade—Salem, Providence, Boston, New York, Baltimore, Charleston, or New Orleans—loaded their ship with the goods necessary for a slave voyage and sailed to Havana or Matanzas, Cuba or to Rio de Janeiro or Bahia, Brazil. Because British treaties with Spain, Portugal, and Brazil stipulated that a ship could be condemned if it was fitted out and supplied as a slaver, the slave dealers needed a way to circumvent that provision. The British ships could not seize ships sailing under the American flag with American papers. Therefore, small and fast American clipper ships, built in Baltimore, sailed to Cuba or Brazil with an American captain and crew. At the same time, the ship was sold to a buyer of a different nationality, often Portuguese or Spanish, with the stipulation that the sale take effect once the ship has reached Africa. The American crew was discharged, a Spanish crew was hired, and the ship obtained a set of Spanish papers. Typically, only one American remained on board, either the captain or someone who could impersonate the captain should the vessel be stopped en route to Africa. The Portuguese or Spanish captain was listed as a passenger, and sometimes the entire American crew remained on board also listed as passengers. With its double set of papers, the ship sailed for Africa.

If the British intercepted the ship, the American papers were produced and the American on board claimed to be the captain. No matter how suspicious the ship appeared and no matter how certain the British were that the ship was in fact a slaver, they could not legally detain her. Once the ship arrived off the African coast, the American captain took the American papers and cut them in half with one part going back on the ship and the other to the American owners, and then the captain usually returned to the United States on a different ship. The ship took on its human cargo as quickly as possible, because it was most vulnerable while on the African coast where the British ships patrolled, and then sailed back to Cuba or Brazil. The slaves were landed somewhere along the coast, after which the ship could sail into Havana or Rio de Janeiro. In some cases, the owners simply burned the ship after unloading the slave cargo, because profits were so high that it was sometimes less risky and still very lucrative.

American merchants also carried on an extensive “legitimate” trade with West Africa that was, in fact, tied directly to the slave trade. The volume of that trade increased after the British Equipment Clause disrupted that traffic. Slave traders got around this new restriction by trading in specie rather than in trade goods. The African slave traders still needed those goods to carry on their inland trade for slaves, and they imported those goods through “legitimate” traders, who were often American merchants from New England and New York. Thomas Buchanan, who became second governor of Liberia in 1839, called attention to the importance of this trade. He wrote to Secretary of the Navy James K. Paulding in 1840:

Often these American ships claimed to be engaged in legitimate trade when they were, in fact, slavers, and ships juggled their flags, names, owners, and crews in order to avoid capture. John Foote, Commodore of the British squadron, complained to Matthew Perry, his United States counterpart, about the complex modes of evasion that American ships employed. He described the case of the Illinois, which appeared to be “a regular American trader” while at Ouidah, located on the coast of Dahomey on what had long been called the Slave Coast because of its importance in that trade. Britain's Equipment Act had seriously hurt the slave trade at Ouidah, which had long been a major port for the Portuguese slave trade to Brazil. The Equipment Act gave the British the ability to seize Portuguese ships or ships of other nations using the Portuguese flag, as had often been the case there. Traders at Ouidah were desperate to find some way to evade the British, and United States traders offered the best chance of evasion. In May 1842, the British became suspicious of the Illinois, believing that she had been sold to local traders. The British boarded the ship but could not search her because she had American papers. Three days later, the ship sailed out of Ouidah flying the Spanish flag and fully loaded with a cargo of enslaved Africans. The next morning she encountered HMS Dolphin, another ship in the British African squadron, and hoisted her American colors. Knowing the vessel, the British captain ignored that flag and gave chase. The Illinois ran aground on the beach near Ouidah in her attempt to escape capture and “was very soon knocked to pieces.” Foote noted that had the British boarded the slave ship while she was flying the American flag “the American Master of the Illinois … would have complained to his government of the detention of his vessel.”Footnote ²¹ In fact, only a few weeks later Perry did criticize Foote for stopping United States ships suspected of slave trading; Perry wrote, “vessels of war other than those of the United States, have no authority in time of peace, to detain, search, or visit American vessels when met with beyond the territorial jurisdiction of the nation to which the foreign cruizer belongs.”Footnote ²²

The British, increasingly frustrated by the continued involvement of the United States in the trade and the United States government's uncooperative stance, took action. Residents of New York City were “thrown into a state of great excitement” on June 12, 1839 when HMS Buzzard sailed into the harbor escorting two American slave ships, the brig Eagle and the schooner Clara. Two weeks later, a British warship brought in another American slaver, the Wyoming, and in October, two more American slave ships arrived under British naval escort, the Butterfly and the Catherine. All four had been released by the Mixed Court in Sierra Leone because they had American papers; however, rather than allow them to re-enter the trade, the British decided to attempt to embarrass the United States. A reporter from a local newspaper set out for Staten Island where the Eagle and the Clara were quarantined. He “instantly pointed out the slavers, they carrying their trade in their looks. They are long, low, sharp, piratical, black, rakish-looking vessels. … The brig has her name painted on the stern, with a large, gilt spread eagle beneath—the name of the port where she did belong is painted out. She is a complete slaver—her slave deck is in, with space only two feet and half high, and ring bolts and manacles ready for one more hundreds of poor black wretches.” The reporter added that the case “will astonish the people of the country. Merchants in this city are engaged largely in this trade.” He estimated that “upwards of twenty American built vessels” were currently trading in slaves, and all with the connivance of Nicholas Trist, American Consul in Havana. He noted, “the British cruisers have several times captured them, but invariably gave them up upon seeing their papers. Now they are determined to see if it is really true that such vessels can sail under the American flag while engaged in the slave trade, and have therefore captured and brought these vessels to New York for the purpose.”Footnote ²³ That involvement raised major issues of international and domestic law, and the enforcement of those laws, or the lack thereof, raises questions about the United States commitment to end the African slave trade.

The Eagle and the Slave Trade in the Courts

A close look at the Eagle can reveal how the illegal trade was conducted. The ship, a brig of 205 tons, was built in Baltimore in 1837 and owned by William G. Harrison and Walter Price.Footnote ²⁴ On the same day that they registered their new ship, they also executed a power of attorney for Thomas T. Wingate, the master of the ship, who was authorized to sell the vessel. Wingate sailed her to Havana, and on March 10, 1838 he sold the ship to Joshua W. Lettig, who would become its captain, a transfer witnessed by J. A. Smith, Vice-Consul. Nicholas Trist verified the power of attorney and the bill of sale. In May, Lettig entered into a contract with nine Spanish sailors for a voyage from Havana to Whydah in West Africa, also certified by Trist. The Eagle did not go directly to Africa, but instead sailed for Bahia, Brazil. In October, Lettig signed a contract with twelve more sailors there, one of whom may have been an American citizen. George R. Foster, American Vice-Consul in Bahia, signed a muster roll listing twenty-two men. The ship then returned to Havana where it was cleared out by the customs house with a slave-trading cargo and equipment shipped by Don J. Morales. The ship set sail on May 14 and arrived in Lagos on July 5. She remained there until August 30 when she sailed for Brazil. She unloaded her cargo of enslaved Africans somewhere along the coast and arrived in Bahia in September 1838.Footnote ²⁵

Later that month Foster notified customs officials that the Eagle had recently arrived from Lagos and was planning a return voyage. British authorities marveled that Foster had “disregarded the absence of any clearance or authority which would justify the Eagle’s appearance at Bahia, as if it were allowable for a vessel to wander over the world from one quarter of the globe to another; in defiance of her papers.” She took on a cargo of $20,000 in tobacco shipped by Joaquim Jose Duarte Silva, regarded as “the oldest Slave dealer in Brazil,” on the account of Don Joaquim Andreo, a Havana merchant based in Lagos. She took on six Spaniards listed as passengers and was forced to take on board five Africans who had been convicted of crimes and were deported from Brazil. Foster turned a blind eye to all that as well when he allowed her to set sail again. On October 20, she sailed for West Africa, stopping first at Elmina where Lettig bought beans and corn, and then to Lagos where she arrived on November 26. While there, British officers belonging to the African Squadron boarded the ship on three different occasions before she was taken by HMS Lilly in January. The other officers had decided against taking the Eagle, because the Mixed Court at Sierra Leone had recently released ships flying the American flag and carrying American papers; however, Captain Reeves of the Lilly refused to allow the ship to proceed. He took the ship to Sierra Leone where, as expected, the Mixed Court refused to bring a case; however, rather than release the ship, Reeves set out to rendezvous with Captain Charles Fitzgerald of HMS Buzzard. Once Reeves and Fitzgerald confronted Lettig, he confessed that the ship was a slaver, that no money had changed hands in the fictitious sale of the ship to him, and that the whole affair had been conducted in Trist's Havana office. The Buzzard had been cruising off the mouth of the River Nunez waiting for the Clara, another ship showing American colors, to leave the river with a cargo of slaves so that she could be detained. Once confronted with the example of the Eagle, Samuel Hooker, the captain of the Clara, followed his lead and confessed that his American papers were also fraudulent and that the ship was in reality a slaver owned by Cubans.Footnote ²⁶ It was not uncommon for captains of United States slavers to claim that their ships were Spanish in order to avoid prosecution in the United States courts where the crime carried the death penalty.

As news of the arrival of the slave ships in New York circulated in the press, the United States government looked for a way out of the embarrassing situation. President Martin Van Buren ordered District Attorney Benjamin F. Butler to prosecute the cases against the slavers; however, Butler quickly decided to recognize the Eagle and the Clara as Spanish vessels, despite the fact that the Mixed Court had refused to condemn them because they were American ships. When Butler's refusal to condemn the ships as American slavers, Lieutenant Fitzgerald took the Eagle and the Clara and headed back across the Atlantic to return the ships once again to the Mixed Court at Sierra Leone. Captain John Edwards of the Wyoming, Lettig of the Eagle, and Hooker of the Clara died before they could stand trial, but the fate of the others showed a lack of zeal on the part of prosecutors and courts. The jury deadlocked in the trial of Frederick Peterson, Captain of the Catherine; he was retried and acquitted. Robert W. Allen, another of the owners of the Catherine, was tried in November 1839, but the Maryland jury deadlocked. He was re-tried and acquitted in April 1840, which led to the dismissal of the case against John Henderson, co-owner of the Catherine. Isaac Morris, captain and owner of the Butterfly, was sentenced to a $2,000 fine and 2 years’ imprisonment, but escaped while free on bail.Footnote ²⁷

The outcome of the cases against the owners of the Butterfly and the Catherine were by no means exceptional. As Southerners hoped, having the cases tried at the port of origin meant that almost no slavers were actually punished. Most of the cases brought against slave traders in the North were heard in New York City. Between 1837 and 1861, 125 slave traders came before the courts; of that number only twenty received prison sentences, and those averaged only two years. Of those twenty, ten received presidential pardons. Four captains were indicted for piracy and could have faced execution. Of those, three were allowed to plead guilty on lesser charges and one was actually convicted, but that conviction was overturned on a technicality. In 1856 a New York City newspaper identified eighteen ships fitted for the slave trade that had sailed from that port in the previous 18 months and marveled at the lack of arrests and convictions; “With the immense traffic that that is set on foot in our very midst, we would ask what has been done to check it? … Why such a proportion of acquittals?” The record in southern courts was even worse, and not a single person was convicted under the slave trading laws south of the Mason-Dixon line after 1846. The only American captain ever executed for slaving was James Gordon in 1862.Footnote ²⁸

Legal historian Peter Graham Fish suggests some reasons for the lack of convictions in Southern courts. The many deceptions slave traders adopted to mask their activities were often successful, and made it difficult for prosecutors to get the evidence necessary to gain convictions. The laws were complex and open to interpretation, and often judges and federal officials insisted on strict constructions of the law that made convictions problematic. In 1818, for example, Benjamin W. Crowinshield, Secretary of the Navy from 1815 to 1818, sought the advice of William Wirt, Attorney General from 1817 to 1829 on the interpretation of the law. Wirt carefully parsed the language of the law and concluded:

It was not sufficient, then, that ships be found with the territorial waters of the United States with captives on board to justify a seizure; the purpose and intent to sell the captives also had to be established.Footnote ²⁹

Similarly, two important Supreme Court cases involving the African slave trade revealed how problematic these cases could be. On the face of it, Justice Joseph Story ruling in the La Jeune Eugenie case (1822) and Justice John Marshall in the case of the Antelope (1825) seemed to offer contradictory rulings, Story's grounded in natural law condemning the trade as a violation of universal law, and Marshall's asserting that positive law, in this case laws of other nations upholding the legality of the trade, trumped natural law. The realities—and the rulings— were actually much murkier than this dichotomy would suggest, and their rulings had as much to do with international and domestic politics as with the law itself. The court walked a fine line attempting to avoid alienating United States allies or fomenting international conflicts, and to somehow condemn the African slave trade without condemning slavery itself.Footnote ³⁰

Executive Responses

In a similar vein, although President Martin Van Buren may have encouraged prosecution of the cases involving the captured slavers, he and his administration quickly realized that encouraging such actions on the part of the British Navy ran counter to the United States's long-standing policy with regard to the right of search, and the United States government lodged complaints with the British government for the seizure of the slavers. The fracas prompted Van Buren to send two United States Navy cruisers to patrol the African coast for the first time since the 1820s; however, their mission was twofold. First, they were to provide “a measure of precaution to protect American vessels from improper molestation,” and second, they were “to detect those foreigners who may be found carrying, without proper authority, the flag of the United States.” It soon became clear that the protection of American trade took precedence over policing the slave trade. Captain John S. Paine of the USS Grampus entered into an agreement with Command William Tucker of the British Squadron that if American ships seized a slaver sailing under any flag other than the United States flag, they would hold the ship until the British cruisers could arrive and conduct a search (which the United States ships were not authorized to do). Tucker agreed that the British would hold any ship sailing under the United States flag until an American cruiser could perform a search. When Paine reported this cooperative and sensible plan to his superiors, he was told that it violated the government's “well-known principles” and would not be allowed. The American ships captured only one slaver.Footnote ³¹

Whereas in the short run the United States government tried to distance itself from the slavers captured by the British, the British efforts to embarrass the United States government into action were not entirely wasted. The attention surrounding the involvement of Consul Trist resulted in the appointment of Alexander H. Everett, a United States diplomat in Madrid, to investigate his conduct in office. Trist's troubles deepened when he was called to testify before the Circuit Court in the case of Robert Allen. Although he denied any wrongdoing in the case of the Catherine and published a pamphlet defending his actions in Havana, the press kept up its unfavorable coverage of “this notorious gentleman.” John Quincy Adams kept his case before Congress, accused him of doing “infinite mischief” in aiding and abetting the illegal slave trade from Havana, and called for his removal. Trist was quoted as saying that he felt “perfectly sure that he shall not be recalled under this administration,” and he was not, but he was recalled in 1841 under the new administration of President John Tyler. Southerners defended Trist, praised his defense of “the interests and rights of the Southern States with the most indefatigable zeal,” and claimed he was a victim of the Whigs and Northern abolitionists. Certainly his association with the illegal trade did not disgrace him. Former President Jackson praised him highly in a letter to President James K. Polk and claimed that Trist had been “most cruelly treated by Mr. Tyler, in being dismissed from the consulate at the Havana.” In 1845, Polk appointed him chief clerk of the State Department and sent him to negotiate a peace treaty with Mexico in 1847.Footnote ³²

The British grew more and more frustrated by the American position, and diplomatic dustups occurred frequently and publicly. Over and over again, the British stopped slave ships, but American papers and the American flag forced them to release them. Despite glaring evidence to the contrary, United States Secretary of State John Forsyth, a Georgia slaveholder who had served as minister to Spain, explained to British Ambassador Henry Stephen Fox, in a lengthy defense of United States efforts to police the slave trade, that the United States's “duty to the world in that respect has been faithfully performed.” The British continued to press the Americans on the important issue of the right of search; how, they asked, could they determine whether or not a ship was legally American when the ships of other nations routinely hoisted American colors to avoid search and seizure, if they could not stop her and verify her nationality? Palmerston said that he could not believe that the United States really intended for its flag to serve as a protector for slaving and observed that an “examination of the papers of merchantmen suspected of being engaged in Slave Trade, even though they may hoist an United States flag, is … absolutely necessary.” Palmerston drew a distinction between stopping a ship and checking its papers and actually searching the vessel. He observed that unless the British were able to stop suspect ships and verify their papers, then slave-trading pirates of any nationality, even British subjects, could simply hoist the United States flag and protect themselves from seizure. Palmerston fumed that it was ridiculous that a slave ship from any nation could avoid search simply by “hoisting a piece of bunting with the United States’ emblems and colours upon it.” Andrew Stevenson, a Virginia slaveholder and American minister to the Court of St. James, in a sharp rebuttal, argued that Palmerston's attempt to distinguish between stopping a ship and examining its papers and searching it was a distinction without a difference, and that it violated international law. He denied that a “power of visitation or detention can be rightfully and lawfully exercised by one nation over another, in time of peace, upon the high seas.” He understood that Palmerston's characterization of the slave trade as piracy, which it was under United States law, was an attempt to claim the right to police it under public law; however, echoing Judge Marshall in his ruling in the Antelope case, he observed that the slave trade was not universally outlawed, not defined as piracy under international law, and not subject to the sort of blanket enforcement that Palmerston claimed.Footnote ³³

Palmerston's outburst only inflamed American passions on the subject. As one newspaper put it, “The right of search by this country can never—will never be conceded by the United States while a timber of her navy, or a rag of her bunting (as Lord Palmerston facetiously calls it) floats upon the ocean.” The American press regularly reported cases of the British stopping and searching American ships, sometimes chasing and firing on them to compel them to stop. Some newspapers warned that British actions would end in war. From London, Stevenson reported the “general impression that war is inevitable.”Footnote ³⁴

The grim mood lifted somewhat when Palmerston, known as “Lord Pumice Stone” for his abrasiveness, was replaced by the more conciliatory Earl of Aberdeen in 1841. That change brought Lord Ashburton to Washington in 1842 as British minister to the United States. A successful banker with wide connections in the country—his wife was Anne Louisa Bigham of a prominent Philadelphia banking family—Ashburton negotiated a treaty with Secretary of State Daniel Webster largely to settle long-festering border disputes between the two nations, but which also addressed the controversies surrounding the right of search and the slave trade. The treaty stipulated that both Britain and the United States would maintain separate naval squadrons on the African coast to patrol for slavers. The treaty did not specifically mention the right of search, but it did stipulate that the two forces would “act in concert and co-operation … for the attainment of the true object of this article.”Footnote ³⁵

The American press suggested that the overwhelming support for the treaty in the Senate (39 to 9) demonstrated that “the honor and dignity of the United States of America has been fully consulted and maintained,” and that the British “fully and cheerfully conceded, abandoned, ‘now and forever’” their demand for the right of search. In the American view, the clear implication was that Britain would abandon the right of search now that the United States was obligated to maintain its own squadron off the African coast. In his message accompanying the treaty, President Tyler observed that the presence of the American squadron on the African coast would “supercede any supposed necessity, or any motive for such examination or visit” by the British on American ships.Footnote ³⁶

With the passage of the Webster—Ashburton Treaty, the United States's effort to suppress the African slave trade entered a new phase. From 1842 until 1861, the United States maintained the Africa Squadron and patrolled the extensive coastline in an effort to intercept American ships or ships unlawfully using the American flag engaged in the illegal slave trade, but with no more than half a dozen ships to patrol more than 4,827 kilometers of coastline, the squadron was hardly effective. George Reed, Commander of the Squadron, reported to Secretary of the Navy George Bancroft in September 1846, “the Americans furnish the means by which it [the slave trade] is carried on. That the vessels used for the purpose are principally American.” He lamented “if our force was three times its present number, the detection of vessels engaged in the Slave Trade would still be afforded with little success.”Footnote ³⁷ Isaac Mayo, Commander of the squadron from 1853 to 1855 also complained to his superiors that “the slave trade is carried on to a great extent under the American Flag.” He observed, “the duty of watching this vast Coast of Africa has been committed to three or four vessels under my command, a force very inadequate to the trust.”Footnote ³⁸ Sir Frederick W. Grey, Commander of the British African Squadron, complained to Thomas Conover, Commander of the United States Squadron, in 1859 that “The number of vessels of which I have received authentic information as being engaged in the Slave trade during the last two years under the flag of the United States amount to about 70.”Footnote ³⁹ During those two years (1857–58) the United States Squadron seized three ships. Under these circumstances, it is hardly surprising that the squadron seized a total of only thirty-six ships from 1843 to 1861, on average, only two every year.Footnote ⁴⁰

There was no denying that the effort to stop American participation in the African slave trade had been half-hearted. The involvement of United States ships, merchants, trading houses, seamen, and money in the trade was well known in the United States, Cuba, Brazil, Africa, and Britain. The details were reported in the American press and debated in Congress, and the British complained loudly and often. One inescapable conclusion is that the 1807 United States and British legislation abolishing the slave trade and the subsequent revisions of United States law were almost completely ineffective. Although the trade declined by approximately 60% between 1808 and 1809, that drop was only temporary, and the trade quickly recovered to almost its former highs. Between 1821 and 1830, the number of Africans enslaved and sent across the Atlantic was almost as great as the number between 1766 and 1775. More than a million slaves left Africa between 1830 and 1860, one tenth of the total volume during the entire era of the Atlantic slave trade.