The Creole Affair
Page 20
The late historian of the House of Representatives put his finger on the new dilemma: “The Whigs controlled the Senate and had cast out the President. In their eyes Webster was almost as bad. Would they now approve the handiwork of these two outcasts?”[44]
In the beginning, there seemed to be trouble in the Senate, where the debate was held in secret, in accordance with the procedures of the Foreign Relations Committee. Senator Thomas Hart Benton, a Democrat from Missouri, attacked the treaty as a dishonorable betrayal of the national interest. With respect to the Creole matter, Benton claimed that the freeing of the slaves in Nassau threatened the Mississippi Valley and the South, and the growing insecurity of the shipment of slaves from the Southeast to New Orleans would damage the West as well.[45] Webster coordinated closely with the chairman of the Foreign Relations Committee, Senator William C. Rives of Virginia.
The Senate chamber, viewed from the gallery, several years after the Senate consented to the Treaty of Washington, the Webster-Ashburton Treaty.
But, in the end, it was an endorsement from Senator John C. Calhoun of South Carolina that proved decisive. He was prepared to support the treaty, because it would bring peace to US-British relations, and that peace was essential for the United States to return to prosperity. Left unstated was that Britain was the largest export market for the South’s cotton, and war with Britain would further damage the already problematic economy of the South, which was still suffering from the Panic of 1837. With respect to the Creole, Calhoun said that he found Lord Ashburton’s assurances to be satisfactory safeguards for American coastal shipping.
On Saturday night, August 20, the Senate voted 39–9 in favor of the treaty. Never before had the US Senate given a treaty such a large majority.[46] This substantial Senate vote somewhat surprised Webster. He gave appropriate credit to President Tyler in a note to Tyler of August 24:
Your steady support and confidence, your anxious and intelligent attention to what was in progress, your exceedingly and pleasant intercourse both with the British minister and the commissioners of the States, have given every facility to my agency in this important transaction.[47]
This treaty is usually held up as the most important achievement of the Tyler presidency. However, for John Tyler personally, this must have been a bittersweet time, since twenty days later, his dear wife, Letitia, died of a second stroke, at age fifty-one.
For the next two decades, there were no further Creole-like incidents in the Caribbean. After that, the Civil War and the Thirteenth Amendment made the issue moot.
Daniel Webster left the Tyler cabinet in May 1843, and he returned to the Senate on March 4, 1845. A year later, after a variety of attacks on the Treaty of Washington and Webster’s negotiation of it, Webster took to the floor of the Senate for two full days, April 6–7, 1846, to defend the treaty and his role in its negotiation. He noted that there had been “disparaging [and] disapproving” remarks in Congress, and he doubted that anyone expected that he “should sit [in the Senate] from day to day . . . hearing erroneous statements, entirely erroneous as to matters of fact, and deductions from those supposed facts quite as erroneous, all tending to produce unfavorable impressions respecting the treaty . . . and of everybody who had a hand in the treaty. . . . it could hardly have been expected that I should sit here and hear all this and keep my peace.”[48] He noted sharply that the treaty had received a vote of five-sixths of the Senate, a greater majority than any previous disputed treaty.
Webster then proceeded to deal mostly with the Northeast boundary matter (whether the United States gave too much to the British), the Caroline controversy, the McLeod issue (whether he put undue pressure on the New York governor), and the African squadron (whether he gave the British the right to search American vessels). Near the end of the second day, he referred to the “coasting vessels” and the Bahamas, and specifically the Encomium case. He sought the agreement of Senator Calhoun that Webster had sought to solve the problem by preventing future occurrences. Calhoun quickly expressed his assent. Finally, Webster said:
And in regard to the Creole case, I put it to the gentlemen and every citizen of the country whether everything intended to be accomplished by correspondence and negotiation on that subject has not been accomplished. And then I will put it to the country, finally, whether what was done on that occasion—whether the result of talent or fortune (I claim no merit for talent)—has not been favorable to the maritime rights of the United States and to the civilized world—whether it is not so regarded by all the civilized world.[49]
1. Kathleen Burk, Old World, New World: Great Britain and America from the Beginning (New York: Atlantic Monthly Press, 2007), 265.
2. Robert V. Remini, Daniel Webster: The Man and His Time (New York: Norton, 1997), 491.
3. Ibid.
4. Ephraim Douglass Adams, “Lord Ashburton and the Treaty of Washington,” American Historical Review 17, no. 4 (July 1912): 764.
5. Remini, Daniel Webster, 545.
6. Adams, “Lord Ashburton,” 766.
7. Ibid., 767n3.
8. George C, Herring, From Colony to Superpower: US Foreign Relations Since 1776 (New York: Oxford University Press, 2008), 187.
9. It is not clear whether they visited both the House and the Senate, or only the Senate—the chamber that would have to give advice and consent to any resulting treaty.
10. Exactly ten years earlier, the Great Reform Bill became law in the United Kingdom; it swept away ancient abuses of parliamentary representation and greatly increased the size of the British electorate. Prior to that act, for example, the great industrial cities of Manchester and Birmingham, with populations of 310,000 and 145,000 respectively, had no representation in Parliament. On the other hand, thinly populated Cornwall had forty-four representatives. See Alan Ryan, “A Big British Moment,” review of Antonia Fraser, Perilous Question: Reform or Revolution? Britain on the Brink, 1832 in New York Review of Books, January 9, 2014, 45.
11. Erik J. Chaput, The People’s Martyr: Thomas Wilson Dorr and His 1842 Rhode Island Rebellion (Lawrence: University Press of Kansas, 2013), 88.
12. Ibid., 89.
13. Ibid., 132.
14. Ibid., 146.
15. Gary May, John Tyler (New York: Times Books/Henry Holt, 2008), 103.
16. William H. Rehnquist, “Daniel Webster and the Oratorical Tradition,” 1989 Yearbook (Supreme Court Historical Society, 2008), 14.
17. Webster’s great biographer, Robert V. Remini, notes that Webster was not shy about selling diplomatic appointments, and that, following a loan by Isaac Jackson (a Philadelphia merchant) to enable him to buy Swann House, Jackson was appointed to a diplomatic post in Denmark. Remini, Daniel Webster, 513.
18. Swann House was razed in 1922, and a new building was constructed to house the US Chamber of Commerce, which is still in use by the chamber.
19. The “Ashburton House” came into the possession of John Nelson, later Tyler’s attorney general, and then became the British Legation until 1852. Beginning in the twentieth century, the house became the parish house of St. John’s Episcopal Church, and in 1974, it was designated as a National Historic Landmark.
20. Today, the State Department has about 19,000 American employees, many of whom are stationed overseas.
21. A plaque commemorating the signing of the treaty on August 9, 1842, was placed at the site of the Old State Department in 1929.
22. Remini, Daniel Webster, 517–18.
23. Howard Jones, To The Webster-Ashburton Treaty: A Study in Anglo-American Relations, 1783–1843 (Chapel Hill: University of North Carolina Press, 1977), 145–46.
24. Remini, Daniel Webster, 547–48.
25. Adams, “Lord Ashburton,” 773.
26. Richmond Enquirer, May 17, 1842, 2.
27. Richmond Enquirer, May 20, 1842, 2. See generally, Wilbur Devereux Jones, “The Influence of Slavery on the Webster-Ashburton Negotiations,” Journal of Southern History 22, no. 1 (February 1956): 48–58.
28. Richmond Enquirer, June 7, 1842, 3.
29. Adams, “Lord Ashburton,” 777.
30. Ibid., 778.
31. Congress rather quickly solved the McLeod problem by enacting legislation to permit rapid removal from state courts to federal courts in the future. Act of August 29, 1842; 5 Statutes at Large, 539–40.
32. Remini, Daniel Webster, 551.
33. Jones, To The Webster-Ashburton Treaty, 147.
34. Opinions of the Attorney General 4, no. 101 (1841–48).
35. Legare died less than a year later while he was accompanying President Tyler to the dedication of the monument at Bunker Hill in Boston.
36. Remini, Daniel Webster, 563.
37. At about the same time, British and Chinese negotiators were sitting in oppressive August heat and humidity half a world away, putting the finishing touches on the Treaty of Nanjing, the first of the so-called Unequal Treaties, which ended the First Opium War and reflected the capitulation of the Qing Dynasty to the British.
38. Adams, “Lord Ashburton,” 779.
39. Oxford defines the adjective as “assertive of authority in an annoyingly domineering way, especially with regard to petty or trivial matters”; Merriam-Webster defines it as “volunteering one’s services where they are neither asked nor needed.”
40. The term was coined by National Security Adviser Henry Kissinger in reference to the Joint Statement Following Discussions With Leaders of the People’s Republic of China in Shanghai, February 27, 1972.
41. Adams, “Lord Ashburton,” 779.
42. Ibid.
43. Remini, Daniel Webster, 559.
44. Remini, Daniel Webster, 566. Robert V. Remini, the award-winning historian, biographer, and official House historian, died on March 28, 2013, at age 91.
45. Jones, To The Webster-Ashburton Treaty, 162–63.
46. Remini, Daniel Webster, 567.
47. Hugh Taylor Gordon, “The Treaty of Washington,” the James Bryce Historical Prize essay for 1907 (Berkeley, CA: University Press, 1908), 217. See also Remini, Daniel Webster, 564n1.
48. 15 Congressional Globe, 29th Cong, 1st Sess., April 6, 1846, 609.
49. Ibid., 621.
III
Afterward: Post-November 1841
Chapter 7
Insurance for Slave “Property”
The United States and Great Britain went toe to toe over the Creole affair, but that conflict was dealt with in the context of other pressing bilateral issues and interests, and was handled diplomatically. Compensation for the freed slaves was pressed—but lightly—by the US side; and it was flatly rejected by the UK side. It would be another decade before the compensation question would be definitely settled (see the next chapter). In some ways, more important than compensation was the alleged injury to America’s national honor. Ultimately, the American side settled for a vague promise that the British authorities would take steps to ensure that such an event would not happen again as a result of actions by British authorities. There was never an admission of liability or responsibility by the British, and there was never a mutually agreed and definitive statement of the facts.
The owners of the slaves who were freed in Nassau and their respective insurance carriers also went toe to toe, but in great contrast to the US and UK governmental conflict, this was a conflict over money and contract interpretation. The slave owners had taken out insurance policies on their slaves, as usual, and now they wanted the insurance companies to pay for their loss. Not surprisingly, the insurance companies argued that this particular type of loss was one not covered by the insurance policies, and so they refused to pay any claims.
The Creole came into New Orleans on December 2, 1841, and the word spread that all but five slaves were gone. It did not take long for the slave owners and their insurance companies to consult lawyers and start the process of adjudication. Some of the insurance companies formally received the initial claim on December 8. Seven separate lawsuits eventually were brought against four different insurance companies.[1] The cases were heard and initially decided by the Commercial Court of New Orleans. The slave owners generally were successful in that court. The insurance companies appealed to the Louisiana Supreme Court. The Supreme Court sat in New Orleans between November and August, in Government House on the New Orleans riverfront.[2]
Three of the four insurance companies hired the legal team of F. B. Conrad, Thomas Slidell, and Judah Benjamin to represent their interests. They were not a single partnership, but had separate offices.[3] Thomas Slidell and Judah Benjamin were young but very prominent in the Louisiana legal and political communities. Judah P. Benjamin was born in 1811 to a Portuguese Sephardic Jewish family in St. Croix, the Danish West Indies (now the Virgin Islands) and grew up in the American Carolinas. Benjamin entered Yale Law School at age fourteen but left after two years without obtaining a degree. In 1832, he moved to New Orleans, and was admitted to practice the same year. A year later, he married Natalie St. Martin of a prominent New Orleans Creole family. In 1834, he wrote, together with Tom Slidell, a digest of some 6,000 cases of the Supreme Court of Louisiana; this was the first comprehensive treatment of Louisiana’s “uniquely cosmopolitan and complex legal system, derived from Roman, Spanish, French and English sources.”[4] It became the standard text for lawyers in Louisiana. Benjamin also established a sugar plantation in Belle Chase, Louisiana, and became the owner of some 140 slaves. His professional rise was meteoric.
Judah P. Benjamin. This photo was taken about ten years after he won the Creole insurance case in the Louisiana Supreme Court.
Benjamin was personally and professionally close to Tom Slidell with whom he coauthored the digest. Tom Slidell was appointed US attorney for the Eastern District of Louisiana in 1837, and, in 1844, he was elected to the state senate. More importantly—in a sense—Benjamin was also close to Tom’s older brother, John Slidell. John was a commercial and maritime lawyer but was also the political “boss” of New Orleans. John “adopted Benjamin as his protégé.”[5] In 1842, when the Creole lawsuits began, Benjamin was elected to the lower house of the Louisiana state legislature, as a Whig—with the help of John Slidell.
Benjamin’s law practice concentrated on the Louisiana Supreme Court. In 1839, he appeared there in nine cases, in 1841, he had eleven cases, and in 1844, he had thirty-five cases; he won the overwhelming majority of these cases.[6] The insurance companies made good choices in selecting Judah Benjamin and Thomas Slidell as their lawyers to argue the cases in the Supreme Court. Benjamin was the lead and wrote the brief. Benjamin’s brief was later printed and circulated as a pamphlet.[7]
The state Supreme Court rendered its decisions in March 1845. The main case was McCargo v. the Merchants Insurance Company of New Orleans.[8] The report of the cases covers more than 150 pages, beginning with the court’s review of the lower court’s decision (more than fifty pages) and roughly equal space for the arguments of the insurance companies, the slaveholders, and the Opinion by Judge Bullard. Crew members from the Creole testified, and so did the former US consul, John F. Bacon. Depositions were taken of other Americans in Nassau in April 1842 and were presented at trial, as well as those of the attorney general of the colony (George Campbell Anderson), the British inspector-general, a police sergeant, and four lieutenants of the British troops. Several pages of Benjamin’s brief were in French and in Latin (quoting Roman legal sources). As he began his Opinion, Judge Bullard noted that the Creole affair had been “the subject of so much diplomatic, as well as forensic discussion [and] was elaborately argued.”[9] That was quite an understatement. At the trial in the Commercial Court of New Orleans, the slave owner (McCargo) claimed that he had taken out an insurance policy for the shipment of his twenty-six slaves, valued at $800 each. The policy protected him against loss from the “perils of pirates” and arrests and other detainments and all other risks of “foreign influence.” Thus, McCargo claimed that the insurance company owed him $20,800 (plus interest at 5 percent), because his slaves
were lost due to the actions of the British authorities. The verdict in the Commercial Court was in McCargo’s favor. He was awarded $18,400 (not the $20,800 he claimed): the jury had deducted $800 because one of his slaves reached New Orleans, and another $1,600 was deducted because it amounted to half the value of four slaves who had been part of the nineteen slaves involved in the insurrection, apparently because the jury felt that their loss should be shared equally between the insurers and McCargo. The insurance company appealed the decision to the state’s Supreme Court.