At that time, it happened that there were two other American ships in the harbor at Nassau: the bark Louisa and the brig Congress. On that Friday morning, November 12, Consul Bacon asked the master of the Louisa, William Woodside of Maine, to go on board the Creole. This was part of a rescue plan that Bacon proposed: as many of Woodside’s crew as he could spare, along with four sailors from the Congress, should board the Creole and assist her to sail to Indian Key (about four hundred miles away) where there was a US warship. Thus, that morning, Captain Woodside and his men rowed out to the Creole with muskets and cutlasses—obtained from the Congress—wrapped in an American flag and concealed in the bottom of the boat. In a dramatic scene, the British officer on the deck of the Creole, along with his twenty-four soldiers with loaded muskets and fixed bayonets, yelled that Woodside’s boat should stand off or be fired on. Woodside withdrew.[4]
Later, Woodside returned without the men and arms, and boarded. Soon, two Episcopal clergymen (Reverend Poole, the chaplain at Fort Charlotte, and Reverend Aldridge, from one of the Anglican churches in Nassau) came on board also. Woodside got the impression that the two clergymen seemed to be giving instructions to the slaves. Just before 11:00 a.m., two magistrates came on board to identify the alleged criminals. Almost immediately, a sloop, a large lighter, and other boats came to the starboard side of the Creole and anchored about thirty feet away. At the same time a great number of small boats surrounded the Creole, all filled with black men. Woodside saw clubs being passed from the sloop and the lighter to the smaller boats. At noon, another boat arrived with five white men on board, and Woodside explained to the British authorities that they had been sent by Bacon to relieve the crew members, but the British officer ordered the American boat to move away.
Early that same Friday afternoon, Woodside came on shore and met with Bacon, who reported on the results of his session with the governor and council that morning (i.e., that the troops would be removed, that the alleged criminals would be brought ashore, and that all the slaves would be free to leave the Creole). Bacon asked Woodside and Gifford to return to the ship and to protest any actions of the attorney general that might result in liberating the slaves. Both the attorney general’s party and the boat carrying Woodside and Gifford arrived at the Creole at about the same time.
The attorney general came alongside the large launch filled with local men and ordered the men to throw away their clubs, explaining that as soon as the soldiers left, they could come alongside and take away any of the former slaves who wanted to leave. The attorney general informed the nineteen slaves, whom the British authorities in their investigation had identified, that they were charged with mutiny and murder, and would be held in custody. The attorney general then turned to the other slaves and told them they were free. The word was then given to the surrounding boats to approach and make fast to the Creole so they could remove the freed slaves. Gifford and the crew members were threatened with violence if any attempt was made to interfere.[5]
The slaves rushed to get on board the boats, except for five slaves—three women, a boy, and a girl—who decided to remain on the Creole and concealed themselves.[6] (Gifford later claimed that many of the male slaves and nearly all of the female slaves would have remained on board were it not for the intimidation and pressure they felt from other slaves and the local authorities.) There was a great celebration as the former slaves reached land. Local Bahamians gave five cheers that echoed across the harbor. Some two thousand Bahamians accompanied the former slaves on a march through the streets of Nassau and brought them to the superintendent of police, where they registered as temporary residents of the Bahamas.[7]
Gifford asked the attorney general for protection for himself and the crew, because he feared that those in the boats might return and engage in violence. Without responding, the attorney general left the vessel at the same time the slaves were climbing over the rails with the assistance of two people in the attorney general’s party. About thirty minutes after the slaves left, a launch came alongside and took off the nineteen prisoners and the soldiers.[8] The prisoners were put in the Nassau jail; one of them died the next day from wounds suffered during the mutiny.
On Monday, November 15, the attorney general wrote to Captain Ensor formally, advising him that the “passengers” [the freed slaves] had applied to him for assistance in obtaining their baggage from the Creole. He instructed Ensor to assist in getting their baggage ashore. Gifford replied—with Bacon’s assistance—that he considered the slaves to be cargo, the property of their owners, and so their masters owned any such slave baggage. Perhaps insulted by Gifford’s response, the attorney general sent a customs officer and his men on board, and they removed apparel, blankets, and other items.
The relationship between the Americans and the local British authorities continued to deteriorate. The next step in the downward spiral took place the following day, when the captain proposed to sell some of the surplus supplies of meat and bread from the ship, since they would not be needed for the short voyage ahead. The funds were needed to pay for the expenses of the Creole during her stay in Nassau. However, the local collector of customs refused formally to “enter” those provisions unless the now-freed slaves were also formally entered as “passengers.” The captain, not surprisingly, refused.
On that same Monday, November 15, Consul Bacon wrote to Governor Cockburn formally to enter his “solemn protest” concerning the manner in which the slaves were put ashore and the part played by the British authorities. Those slaves, Bacon asserted, “were as much a portion of the cargo of the said brig, as the tobacco and other articles on board . . . while they were under the American flag.” Finally, the American consul explained that he expected that the Creole would soon be able to sail away, and so he requested that the nineteen slaves being held by the British should be transferred to the Creole for transport to the United States, in order that they might be tried there. Bacon pointed out that it might take time for London to decide whether to bring the nineteen to trial in Nassau or to permit them to be tried in the United States, but at that late point the witnesses probably would be disbursed and unavailable to trial. This dilemma would be solved, argued Bacon, by letting the Creole take the nineteen slaves to the United States now.
Sir Francis replied immediately. The message was rather personal. The governor reported that he felt “somewhat disappointed” by Bacon’s letter, because he thought Bacon had not objected to any of Cockburn’s actions and, indeed, had acquiesced in all of them. He then stated that the attorney general’s official report dated November 14—a copy of which Cockburn enclosed—made it clear that none of the authorities had anything to do with the slaves leaving the ship, other than the nineteen being held in custody. As far as the request to permit the nineteen to leave the Bahamas on the Creole, Cockburn stated, in effect: I already told you that we were seeking instructions from London, to which you acquiesced. The official report of the attorney general, G. C. Anderson, indeed, flatly contradicted much in the depositions of all the Americans. For example, Anderson reported that Gifford had “cheerfully” complied with the request to bring the slaves on deck so that Anderson could tell them that they were free, and that they had Gifford’s “free permission to quit” the vessel. In like fashion, Merritt also addressed the slaves, according to the attorney general’s report, and told them that they “were at perfect liberty to go on shore if they pleased.” Similarly, Gifford told the attorney general directly “his perfect acquiescence” in these events.
There is, of course, no way of knowing which characterization of these events was closer to the truth. However, it might seem difficult to imagine Gifford being “cheerful” about the Bahamian actions, or that Merritt—who was serving as a guard for some of the slaves—would have been so passive at the idea of his slaves leaving the vessel. On the other hand, we will learn later (see chapter 7) that the British witnesses claimed that Gifford and Merritt were, in fact, delighted to get rid of the slaves, sin
ce they were terrified of sailing home with them on board and so risking another bloody mutiny. Nevertheless, this fundamental factual conflict between the American and British versions of events seems not to have been a subject of heated conflict at the higher levels of the US-UK dialogue.
Bacon later learned that, on November 18, about fifty of the former American slaves were sent from Nassau to Jamaica—another British colony in the Caribbean—and that another shipload was planned.[9] It is possible that the British sent the Creole’s former slaves to Jamaica to protect them from recapture. It is also possible that they did so to prevent the destruction of Nassau—with only its inadequate Fort Charlotte for defense—by American warships.[10] The British authorities may have been eager to move the newly freed slaves far from Nassau, perhaps so they would not be available if the Americans came looking to retrieve them.
There is no record of what happened to the freed American slaves. Many may indeed have ended up in Jamaica or some other nearby British colony. Whether in Nassau or elsewhere, they probably had little difficulty fitting in with the local population, and certainly they had to have been welcomed by the locals. Because they spoke native [American] English, they may even have had an advantage over some locals whose English was more recently acquired. Without leaving a trace, however, these former American slaves simply melded into the local scene and otherwise vanished.
The governor and council may have felt that they would have faced a potential internal threat if they had not cleared the way for the American slaves to gain their freedom. The ratio of blacks to whites in the Nassau vicinity was at least four to one: some 12,000 backs and only 3,000 whites.[11] A great many of the local blacks were former slaves who had a natural and overwhelming sympathy for the slaves on board the Creole. Despite a general respect for British authority, Nassau’s black population might well have acted on its own to secure the liberation of the slaves on the ship.[12] Moreover, for a British governor to be seen protecting the American “property” and preventing the slaves from climbing off the vessel to their freedom might have been dangerous. The memories of the great slave revolt in the British colony of Jamaica, less than ten years earlier, probably remained in the minds of the Bahamian colonial authorities.
The worry the local British authorities had about their safety was not confined to internal unrest. Would the Americans send a warship or two to vent their anger over the British handling of the Creole? The huge Fort Charlotte—complete with moat, ramparts, and dungeons—was more than half a century old; it had been named after the wife of King George III. While it held a commanding position about a mile west of the center of Nassau, overlooking the harbor, it had not been adequately maintained or provisioned. On November 24, Sir Francis wrote again to Lord Stanley in London about the “insufficient state” of the garrison: “both as concerns the number of troops stationed here and the dilapidated state of the works.” Cockburn explained that the fort was so “dilapidated” that one American warship could easily make the situation of the colony “desperate.”[13] Stanley was the secretary for war as well as the secretary for the colonies.
On November 17, Cockburn wrote to Lord Stanley to report the events and the actions he had taken. Cockburn began his letter, “I have been placed in a situation of some difficulty and delicacy” by the Creole events. He attached copies of the written exchanges, including Consul Bacon’s formal protest. Consul Bacon also wrote to Secretary of State Webster on November 17, and again on November 30, and provided a full report, including copies of his exchanges with the governor along with the affidavits he had taken of the crew, passengers, and captain of the Louisa; he also included the reports of the Bahamian attorney general.
On November 19, the Creole sailed from the harbor at Nassau and headed to New Orleans. Gifford remained in charge as the acting master, but the severely wounded Captain Ensor was too ill to travel. He was left in Nassau.[14]
Given the great distance from Government House in Nassau to Downing Street in London, Governor Cockburn’s dispatch of November 17, with all its attachments, did not reach London until early January. On January 7, 1842, Lord Stanley replied to Cockburn. Stanley was “happy to be able to convey [Sir Francis Stanley’s] approval of the course which [Cockburn] had pursued.”[15] Stanley explained that, while he would have liked to furnish Cockburn with definite instructions for future guidance, “in a question of such international importance,” he rather “thought it right to call upon the Law Officers of the Crown . . . for their Opinion.” He hoped to have the results by mid-March so as to relieve Cockburn of the “anxiety which [he] must naturally feel in a case of so novel and embarrassing a nature.”
Within only three weeks, on January 29, 1842, three members[16] of Doctors’ Commons sent to Lord Stanley their twenty-eight-page handwritten Opinion on the “Case of the Creole . . . General Question of Giving up fugitives to a Foreign Power.” The Doctors’ Commons was a body established in the 1500s to advise on great legal issues, particularly ecclesiastical and admiralty. It was housed in a building near St. Paul’s churchyard. Its members had to be doctors of law from either Oxford or Cambridge.[17] The Crown Legal Advisers at the Doctors’ Commons answered the six questions that Lord Stanley had asked:
None of the nineteen persons alleged to have committed crimes on board the Creole is amenable to the courts of the Bahamas. Their actions do not amount to the crime of piracy, either under international law [the “general Law of Nations”] or under British law, and therefore are not cognizable by any English Tribunal. The intent and object of the slaves was not that of plunder; their sole object was their freedom. They may be chargeable with the crime of murder, but, since they are not British Subjects and the crime was not committed on board a British vessel, they cannot be tried by a British Tribunal for that offense.
Since the offense was committed by persons subject to American law, on an American ship, against American citizens, the offense is “exclusively cognizable” by the criminal tribunals of the United States.
There is no general state practice of delivering up persons charged with crimes who have taken refuge elsewhere, and there is no rule of international law [the Law of Nations] so requiring. Yes, the mutual surrender of criminals is sometimes provided by treaty, but the United Kingdom does not have such an extradition treaty with the United States.
The conduct of Governor Cockburn was not in any respect at variance with the law and practice of civilized nations, or with the municipal law of the Kingdom.
The letter of Consul Bacon of November 14, 1841, was based on a “misapprehension of the facts.” The correct understanding of the facts is that the “slaves were not liberated by the British Authorities, nor does it appear that any control was exercised by them . . . over the crew of the ship.”
The customs officers of the Bahamas might lawfully grant clearance for the Creole to return to the United States, and they did not have a duty to ascertain whether the slaves were returning to the United States of their own free will.
The Crown legal advisers then raised an issue of their own: if the British government decided that it would be “just and proper” to comply with an American request to deliver those in custody for trial in the United States, does the municipal law of England pose an obstacle? The Crown lawyers acknowledged that, on this question, they “felt very considerable difficulty.” Interestingly, the first citation offered by the Crown lawyers was to Conflicts of Laws, published in 1834 by US Associate Supreme Court Justice Joseph Story—Daniel Webster’s friend. The Crown lawyers reported that they gave this question “a most minute investigation.” They concluded, “the British Government cannot legally direct the delivery up of the persons now in custody in the Bahamas to the Authorities of the United States.”
Two days later, Lord Stanley, writing from Downing Street to Governor Cockburn, enclosed the text of the full Opinion of the Crown lawyers.
Stanley’s cover letter—marked “Confidential”—explained that the law officers opined
that a charge of piracy would not apply to the “Negroes” who took over the Creole. Therefore the offense—not amounting to piracy—“being committed by Foreigners on board of a Foreign vessel, cannot be tried” in the Bahamas, or any other British colony. Rather, “whatever be the offense charged against the Negroes . . . the Courts of Justice of the United States have exclusive jurisdiction in the matter.”
Moving on, Stanley noted that Cockburn had reported that the American consul had formally “protested against the liberation . . . of those Negroes . . . not charged as having taken any part in the acts of violence which were committed, but who have availed themselves of British Law within a British Port to assert their freedom.” On that point, Lord Stanley was quick to respond: “Her Majesty’s Government could not hesitate for a moment.” The slaves were not liberated by any act of British Authority:
being within the limits of British Territory, within which limits the condition of Slavery is not recognized by law, & being charged with no crime, they voluntarily quitted the vessel on board of which there was no legal power to detain them.
Lord Stanley then turned to the second point: Bacon’s demand that the mutineers be returned to the United States for trial. He acknowledged that the decision “is one of the highest importance” and so he had sought the Opinion of the Crown’s law officers whether the government was required to surrender the slaves, or whether it had discretion to surrender them, on the demand of the United States. Stanley quoted from the Opinion that “the British government cannot legally direct the delivery up of the persons now in custody in the Bahamas to the Authorities of the United States.” Stanley noted that he really did not know whether such a demand had been made by the United States, or whether the US government would affirm any part of the claim made by Consul Bacon.
The Creole Affair Page 13