The Creole Affair

by Arthur T. Downey

  It is sometimes a litigator’s tactic to begin with an offensive move, and Benjamin made that move. He claimed that McCargo had an obligation under the contract to maintain a seaworthy vessel, and that the Creole was not seaworthy, considering the nature and purpose of her voyage, and therefore the insurance company’s obligations were discharged. The elements of the claim were these: there was a failure of arms (the whites should have been armed), and failure to take proper precautions and discipline (the slaves were not searched for potential weapons upon boarding, and were free to move about). This was especially important, because of the great physical disparity between the ninety male slaves and the handful of whites in the context of the “nature of the slave, and his ever-wakeful and ever active longing after liberty.” The third element of the unseaworthy claim rested on the assertion that too many slaves were crowded into a small space. Benjamin cited an 1819 federal law that limited the number of passengers to two for every five tons of the vessel, and noted that the Creole had a ratio of sixty-three “passengers” per five tons. That position permitted Benjamin to ask rhetorically:

  Will this court be disposed to recognize one standard of humanity for the white man, and another for the negro. Will any reasonable man say that 135 negroes would be as cheerful, contented and indisposed to insurrection, under such circumstances of discomfort, as they would have been in a larger and more commodious vessel?[10]

  This statement of a principle of humanity—insisting on a single standard for black and white—was asserted by a man who held 140 slaves on his plantation.

  The slave owners argued that their loss was as a result of piracy—which was a loss covered by the insurance policy—that the slaves were pirates. Rebutting, Benjamin pointed out “these slaves were instigated, not by thirst for plunder, but by the mere desire of liberty.”[11] In any event, he argued, the intent was to cover an external attack and the carrying off of slaves by pirates. The court did not buy the piracy claim.

  Ultimately, the question came down to whether the cause of the loss was the “interference” by the British authorities in Nassau (which was a covered loss), or it was due to an insurrection of the slaves (which was exempt from the coverage in the insurance policies). Although the testimony of the witnesses was largely contradictory (the American versus the British positions), the slaveholders argued that it was the British who “liberated” their slaves, and, but for that foreign interference, the Creole might well have been able to bring them to New Orleans. Benjamin explained that all the evidence clearly showed that the slaves’ mutiny was successful on the high seas, and that, at the moment the Creole entered the port at Nassau, the slaves were in control. They were, in effect, fugitive slaves. In contrast, the earlier episodes involving the Hermosa, the Comet, the Encomium, and the Enterprise were fundamentally different because the slaves were all under the control of the whites. The freedom of the Creole slaves was acquired by their escape from slavery into a free country, claimed Benjamin.

  Benjamin took the position that the British did not “intervene,” but that, in effect, the slave status of those 130 people on the Creole vanished because there was no Slave Law in the Bahamas. He said:

  Slavery is against the law of nature; and although sanctioned as a local or municipal institution, of binding force within the limits of the nation that chooses to establish it, and on the vessels of such nations on the high seas, but as having no force or binding effect beyond the jurisdiction of such nation.[12]

  This sounds much like the Resolutions offered in 1842 by Congressman Giddings—for which he was formally censured—and, of course, the formal position of the British government.

  The evidence from the witnesses was sharply contradictory as to exactly what happened on the Creole after it came into the harbor but just before the slaves climbed overboard to freedom. The statements of the Americans—including Bacon, Merritt, the other members of the crew—were all essentially the same: they clearly put the blame on the British authorities for having, in effect, pushed the slaves into the arms of the locals. This rendition of the “facts” had been reflected in the formal protest and also in the statements made by the US authorities, including Secretary of State Webster. The “British” view of the facts was sharply contrary. George Campbell Anderson, the Bahamas attorney general who boarded the Creole on November 12 to check whether the investigation by the magistrate had terminated, claimed that Gifford made it clear to all the slaves that he, Gifford, had no intention of detaining any slaves who wanted to leave, and that Merritt had made the same offer. Anderson stated that the contrary claims made in the protest were “wholly untrue” and a “complete fabrication.”[13]

  Similar statements were made by Magistrate Hamilton, who was also a lieutenant in the British Navy; Pinder, the inspector-general of the police; Dalzell, a police sergeant; John Grant Anderson, the treasurer of the colony; four lieutenants in the Second West India Regiment of British troops; and Cobbe, their major. These witnesses explained why the Americans, in effect, invited the slaves to leave the Creole, rather than to resist the alleged invitation of the British authorities: the passengers and crew were convinced that “their lives were in danger” if they tried to resume the voyage with the slaves on board.[14] They claimed they simply would not resume the voyage with the slaves on board. Given the horror of the bloody mutiny that they had already experienced, their apprehension must have seemed far from unreasonable. On reexamination, Gifford and other Americans claimed that the statements of the British personnel were a “fabrication” and “utterly false.” Thus, the “facts” of the events on the Creole were completely contradictory.

  Judge Henry A. Bullard rendered his Opinion. He reviewed the Webster-Ashburton exchange of notes of August 1842 (see appendix III), and accepted the general principles that British law with respect to slavery did not operate on the Creole while it was lying in the port of Nassau. The judge noted that Lord Ashburton did “not pretend to combat the general principles thus expressed.”[15]

  However, Bullard took the position that the British “interfered” only at Consul Bacon’s request, and solely for the purpose of singling out and confining the guilty, and that, after that had been accomplished, there would be no purpose for any restraint upon the others left on board.

  What about the attempt, sponsored by Consul Bacon, to gain the assistance of some crew from the Louisa and the Congress, which culminated in the effort of Captain Woodside and his men to board the Creole—with their muskets and cutlasses wrapped in an American flag—only to be ordered by the British guard to withdraw? Judge Bullard answered that point with sarcasm: the British guard had been placed on the Creole at the US consul’s request, and it would “hardly have comported with the good faith to have made an attempt at that time, by force of arms, to rescue the brig from the [British] guard.”[16] But what about the “public prejudice” of the place (i.e., the large black population that swarmed near the vessel and “evidently intimidated and overawed the officers and crew of the brig”)? Yes, reported the judge, the British authorities were generally sympathetic with the crowds, but the attorney general went to the boats that were assembled near the Creole and cautioned them against any violence.

  The judge found that the statements of all the witnesses contained “irreconcilable contradictions,” but he found some facts that were clear: there was no violence, not a single person from on shore or from the surrounding boats boarded the Creole, neither Gifford nor Merritt gave any orders to the slaves to go below and remain on board after the guard was withdrawn, and only the nineteen mutineers were taken on shore by the British with the consent of all concerned.[17]

  The judge made it clear that his role had nothing to do with whether there was a violation of international comity, since that was a question of redress between the US and UK governments. His only inquiry was what was the proximate case of the loss under the insurance contract. He concluded that:

  the insurrection of the slaves was the cause of breaking
up the voyage, and prevented that part of the cargo, which consisted of slaves, from reaching the port of New Orleans; and, consequently, the defendants [the insurance companies] are not liable on the policy.[18]

  Thus, the insurance companies won, and the slave owners were not compensated.[19] But more than a decade later, the British government compensated the slave owners (see the next chapter).

  Apart from settling the monetary liability question between the parties, this case served a valuable purpose. It was decided in a relatively calm and dispassionate context, years removed from the emotion and stresses of the actual events of November 1841. Most importantly, it produced a record that revealed a substantial amount of testimony from the British side, testimony that undercut the factual position taken by the crew and others in the formal Protest. The usual inquiry into the Creole affair ends with the diplomatic resolution in August 1842—or, perhaps with a brief note of the 1855 Anglo-American Claims settlement—and thus tends to project the American rendition of the facts as accurate. This insurance case from 1845 helps to explain that there was an alternative narrative of the events of November 1841 in Nassau’s harbor.

  1. The seven are: McCargo v. New Orleans Insurance Co. (twenty-six slaves); Andrews v. The Ocean Insurance Co. (eight slaves); Lockett v. Fireman’s Insurance Co., of New Orleans (twenty-eight slaves); Hagan v. The Ocean Insurance Co. (nine slaves); Johnson v. The Ocean Insurance Co. (twenty-three slaves); McCargo v. The Merchants Insurance Co., of New Orleans (nineteen slaves); and Lockett v. The Merchants Insurance Co. of New Orleans.

  2. For an interesting courtroom thriller set in New Orleans in 1843, which reconstructs the sights and sounds and smells of that city, especially the slavery issue, see John Bailey, The Lost German Slave Girl: The Extraordinary True Story of Sally Miller and Her Fight for Freedom in Old New Orleans (New York: Grove Press, 2003).

  3. Sometimes it is suggested that Slidell and Benjamin had a partnership, but the earliest scholar who studied the matter claims there is no authority supporting a formal partnership, and family sources confirmed that. See Pierce Butler, Judah P. Benjamin (Philadelphia: G. W. Jacobs, 1907; New York and London, 1980), 37.

  4. Justice Ruth Bader Ginsburg, “From Benjamin to Breyer: Is There a Jewish Seat?” Supreme Court Historical Society Quarterly 24, no. 3 (2003): 4.

  5. Eli N. Evans, Judah P. Benjamin: The Jewish Confederate (New York: Free Press, 1988), 27.

  6. Ibid., 28.

  7. Butler, Judah P. Benjamin, 43.

  8. Thomas McCargo v. The New Orleans Insurance Company, vol. X, Louisiana Reports 202 (1845).

  9. Ibid., 312.

  10. Ibid., 260.

  11. Ibid., 277.

  12. Ibid., 279.

  13. Ibid., 251.

  14. Ibid., 254.

  15. Ibid., 317.

  16. Ibid., 330.

  17. Ibid., 326.

  18. Ibid., 332. The other six cases were summarily treated in the same way, since the same facts and questions of law were presented. There was an application for rehearing in one case, but that was denied.

  19. In two of the cases, McCargo v. The Merchant’s Insurance Co of New Orleans and Lockett v. The Merchants Insurance Co. of New Orleans, the jury in the lower court awarded compensation, in part on the “seaworthy” issue and in part due to technically different provisions in their contract. Judge Bullard explained that the evidence was not sufficient for him to overturn the two jury verdicts. These same two cases were later dealt with by the US Supreme Court.

  Chapter 8

  Should the British Have Freed the Slaves?

  It is customary for nations periodically to gather up private claims the citizens of one country have had against the government of another and to create a general claims settlement tribunal or commission, under which these claims are adjudicated. On February 8, 1853, the United States and the United Kingdom signed a convention in London establishing such a claims commission. The secretary of state was Edward Everett, Webster’s old friend and former American minister in London. The agreement entered into force on July 26, 1853,[1] and was formally proclaimed by President Franklin Pierce on August 20, 1853. The convention covered all claims “on the part of corporations, companies, or private individuals, citizens of the United States, upon the Government of her Britannic Majesty” that had been presented since the Treaty of Ghent that ended the War of 1812, on December 24, 1814—almost forty years of accrued claims. Reciprocally, British claims against the United States were also to be covered.

  Claims were to be presented to two commissioners, one American and one British. The two commissioners were required to subscribe to a “solemn declaration” of their impartiality and to decide cases based solely on “justice and equity” without “fear, favor, or affection to their own country.” If they could not agree on a decision, they would appoint “some third person to act as an arbitrator or umpire,” in accordance with Article I of the Convention. The United States appointed Nathaniel G. Upham as its commissioner; he was a Democrat from New Hampshire, a Dartmouth graduate who had become a judge of the state’s Superior Court when he was only twenty-seven years old. The British appointed a diplomat, Sir Edmond Grimani Hornby, as its commissioner.[2]

  The two commissioners met in London on September 15, 1853, and signed their joint Declaration of Impartiality. They met again on October 13, and agreed to propose to former US president Martin Van Buren that he act as the umpire in cases where they could not agree. Even though Van Buren was at that time living in Florence, this must have been seen by the American side as quite a positive gesture on the part of the British—or, perhaps to the contrary, if one assumes that Van Buren would have bent over backward not to be seen as unfairly favoring a US claim. On Friday, October 28, the commissioners received a letter dated October 22 from the seventy-one-year-old Van Buren in which he declined the appointment. Van Buren noted that no one could “appreciate more highly than [he does] the importance, not to themselves only, but to the world, of the maintenance of friendly relations between” the United States and United Kingdom. But, he explained, he had for several years withdrawn himself from public affairs and even from business “of every description,” and that had given him “a degree of repose” suitable to his age and condition. Yes, if the matter were only a single question, he might agree to be umpire, but his experience taught him that these claims matters carry on beyond the expected time, and he could not agree to such delay, which in turn would force him to postpone his return to the United States.

  The following Monday, October 31, the British commissioner proposed sixty-five-year-old Joshua Bates as the umpire. Bates was an American, born in Massachusetts, but he spent most of his time in London—“his adopted home”—where he joined the great financial house of Baring Brothers; he later became Barings’ senior partner, just as Lord Ashburton had been. (Alexander Baring, the Lord Ashburton, died in 1846.) In 1828, Bates toured the United States with Francis Baring, Lord Ashburton’s second son (the 3rd Baron Ashburton), and focused on the bank’s great interests in New Orleans.[3] In 1830, Bates negotiated a loan to provide funds to compensate slave owners in the British West Indies when their slaves were emancipated. Early in the second half of the 1830s Bates began to lose confidence in the American and English financial system, anticipating the financial collapse that began in 1837. The year before the claims agreement was signed, Bates founded the Boston Public Library and gave it $50,000 (about $1.4 million today).

  The US commissioner quickly agreed to Bates. Here was a man who really understood the United States, slavery, and the needs that underlay national and international commerce. Bates formally accepted the appointment on November 2, and two weeks later, Bates signed his formal Declaration of Impartiality. The final administrative actions were the arrival of the two agents: John A. Thomas for the United States and James Hannen for the British. The task of the agents was to present their respective national claims to the commission.

  The commission was presented w
ith more than one hundred claims that had arisen over decades, and the two governments had to agree to extend the life of the commission to hear them all. The claims ranged from those arising out of US military actions in Mexico to Texas bonds. But three claims are especially relevant, all of which were discussed earlier, in chapter 2.

  McLeod

  Alexander McLeod of Upper Canada was arrested 1840 in New York State following his engagement in the destruction in 1837 of the US steamer Caroline. He was ultimately released in October 1841, and the matter was also dealt with between Webster and Ashburton. Nevertheless, McLeod himself—without counsel—appeared at the Claims Commission’s hearing on September 27, 1854, and was supported by the UK agent, Hannen. The UK commissioner agreed with McLeod that the United States owed him compensation for the undue period he was detained, after the United Kingdom had acknowledged that his actions were on behalf of the UK government; McLeod also claimed compensation because his detention was longer than necessary, because of “public excitement,” and the United States had failed to meet its obligation to repress that public excitement. The US commissioner, not surprisingly, decided that McLeod’s claim was outside the scope of the commission, and so the matter was put to Umpire Bates for decision.