Another hearing was held on December 11, 1854, before the umpire, and, once again, McLeod personally testified in his own behalf. Bates disposed of the McLeod claim rather quickly on January 15, 1855. He noted that the entire episode related to the Caroline—including McLeod’s arrest—was “all amicably and finally settled by the diplomatic agents [Webster and Ashburton] of the two governments in 1841 and 1842.” In rejecting the claim, Bates closed summarily: “The question, in my judgment, having been so settled, ought not now to be brought before this Commission as a private claim. I therefore reject it.” Later that year, the British government awarded McLeod an annual pension equal to about $20,000 in today’s currency to compensate him for his suffering while imprisoned in New York.[4]
The Slave Ships
The three slave ship claims were dealt with as a package, since most of the issues were related. On March 14, 1854, the US agent, John A. Thomas, presented some thirty claims on behalf of the United States, and included were those for the Enterprise, Hermosa, and Creole. Hearings were held on October 19 and 21 dealing with all three claims.
Enterprise
The US agent, John Thomas, argued that the British should compensate the owners of the thirty-eight slaves on board the ship, just as they did with the Comet and the Encomium in 1830 and 1834, respectively. But the British government refused payment on the grounds that, at the time the Enterprise arrived in Bermuda, slavery had been abolished throughout the British Empire. Thomas noted that the UK abolition act in 1833 contained a large proviso that exempted large portions of the Empire, such as Ceylon, St. Helena, and the territories of the East India Company. In any event, Thomas argued, when a vessel in distress comes into another nation’s waters, that nation’s authority does not attach to that vessel; indeed, the vessel is guarded by international law. Thus, the enforcement of the British Emancipation Act upon the Enterprise was a violation of the law of nations. Thomas offered a hypothetical illustration: if Turkish law permitted a husband to have multiple wives, and a distressed Turkish ship is forced into a British port, could a British sheriff go on board and remove one of the captain’s wives?
The US commissioner, Nathaniel Upham, presented a lengthy and learned opinion, relying on extensive citations to international law authorities, and, of course, concluded that the British must compensate the Americans for the loss of their slaves. The British commissioner, Edmund Hornby, cited the 1842 US Supreme Court case of Prigg v. Pennsylvania (see chapter 5) for the proposition that no nation is bound to recognize the state of slavery or of foreign slaves found within its territory. At the time the Comet and Encomium came into British waters, it was not unlawful to have slaves, while it was unlawful in the Bahamas at the time the Enterprise arrived, and so no compensation is required for the act of freeing the slaves.
The umpire began his discussion of the claim with the general statement that no one can deny that “slavery is contrary to the principles of justice and humanity,” but he also noted that slavery in fact existed in several countries by local law. As a result, slavery “could not then be contrary to the law of nations, and the Enterprise was as much entitled to protection as though her cargo consisted of any other description of property.” Therefore, Bates concluded, the conduct of the British in Bermuda “was a violation of the laws of nations, and of those laws of hospitality which should prompt every nation to afford protection and succor to the vessels of a friendly nation that may enter their ports in distress.” On December 23, 1854, the umpire decided the claim for the Enterprise. He awarded $16,000 to the Augusta Insurance Banking Company and $33,000 to the Charlestown Marine Insurance Company, effective January 15, 1855. Since there were thirty-eight slaves “lost” [freed] to the owners who had been indemnified by the insurance companies, that sum amounted to $1,290 per slave or about $35,000 per slave in current dollars.
Hermosa
Having dealt with similar issues in the Enterprise claim, Bates supported the claim, explaining that the captain of the Hermosa required simply “that aid and assistance which was due from one friendly nation, to the citizens or subjects of another friendly nation, engaged in a business lawful in their own country, and not contrary to the law of nations.” The authorities in the Bahamas in 1840 failed to render that minimal assistance. On January 11, 1855, the umpire rendered his decision in the Hermosa claim, and awarded $8,000 to the Louisiana State Marine and Fire Insurance Company and $8,000 to the New Orleans Insurance Company, effective January 15, 1855. Since seventy-two slaves were “lost” [freed], that sum amounted to only $222 per slave. However, the umpire explained his rationale for the substantial difference in slave valuation: he made allowance for a reasonable salvage amount for the wreckers.
Creole
The case was presented March 14, 1854, and heard June 3, 10, and 14, 1854, after which the commissioners disagreed, and the claim was heard by the umpire on October 19 and 20. On January 9, 1855, the umpire rendered his decision.
Umpire Bates explained the facts of the Creole claim, sometimes in racially explicit terms. For example: on November 9, 1841, “twenty African soldiers, with an African sergeant and corporal, commanded by a white officer” came on board; on November 12 “a large number of boats assembled near the Creole, filled with colored persons armed with bludgeons. They were under the immediate command of the pilot who took the vessel into the port, who was an officer of the government, and a colored man.” Bates’s opinion laid out the dramatic scene in the harbor, where men with clubs were passing clubs around to others, and a “vast concourse of people were collected on shore opposite the brig.” Bates explained that the British government officers, during the whole time they were on board, “encouraged the insubordination of the slaves.”
The umpire noted that the British identified those slaves who were implicated in the mutiny and murder, brought them to shore, and detained them in jail. To make unmistakably clear the role of the British authorities—as opposed to the “vast concourse of people on shore”—Bates quoted the statement of the Bahamas attorney general to the remaining slaves assembled on deck: “My [men], you have been detained a short time on board the Creole for the purpose of ascertaining what individuals were concerned in the murder. They have been identified, and will be detained. The rest of you are free, and at liberty to go on shore, and wherever you please.” Bates completed that portion of the story by pointing out that the liberated slaves, once on shore, were conducted “by a vast assemblage” to the police station for registration. Thus were the slaves lost to the claimants, concluded Bates.
As he did in the Enterprise case, the umpire once again pointed out that slavery is not a violation of the law of nations. The voyage of the Creole was sanctioned and protected by the laws of the United States and by the law of nations. It had a right to seek shelter in case of distress or any unavoidable necessity. In such a case, Bates asked rhetorically, what were the duties of the authorities in Nassau? Since the crimes of the mutineers were committed on the high seas, those men could not be tried in Nassau. Therefore, their responsibility was to comply with the request of the US consul and to keep them in custody until a vessel could be obtained to send them to the United States. With respect to the other slaves, the responsibility of the authorities was to afford the protection required by the law of nations. Once again, Bates was crystal clear:
The municipal law of England cannot authorize a magistrate to violate the law of nations by invading with an armed force the vessel of a friendly nation that has committed no offence, and forcibly dissolving the relations which by the laws of his country the captain is bound to preserve and enforce on board.
The umpire did not explain the basis for his assertion that the British invaded with an armed force when there was agreement on the fact that the US consul requested that a British force board the ship.
Umpire Bates then announced his conclusion: “the conduct of the authorities at Nassau was in violation of the established law of nations, and that the claimants are justl
y entitled to compensation for their losses.” Bates then awarded a total of $110,330, divided among eight claimants.[5] If there were 135 slaves on the vessel when it left Richmond, and five elected to remain on the Creole and continue to New Orleans, the award amounted to about $883 per lost slave.
One distinguished scholar has noted that Bates’s decision, aside from legal technicalities, “cast serious doubt on the later widespread assumption that by the 1850s justification for slavery had been wholly repudiated in the nonslaveholding world.”[6] Another writer asserted that Bates’s decision “erased the agency of the rebels—and Nassau’s black population—by figuring the conflict as a struggle between armed national entities.”[7]
Thus, the US-UK Claims Commission resolved the Creole claim in 1855. But there was one more Creole claim controversy—this time, three years later. The US Supreme Court resolved it.
The Merchants’ Insurance Company of New Orleans,[8] which had insured some of the slaves on board the Creole, was dissolved, and a liquidator was appointed, John Pemberton of New Orleans. In that capacity, Pemberton had two claims—identified by the commission, creatively, as first and second claims. In January 1855, the umpire awarded Pemberton $12,460 and $16,000, respectively, for a total of $28,460. That sum was then duly transmitted to the State Department in Washington, where it was to be paid to Pemberton, as liquidator, with a deduction of 5 percent for expenses. So far, the system was working as expected. But when Pemberton sought the $28,460 (less 5 percent) from the State Department, Secretary of State William Marcy explained that he was permitted to provide only half of that sum, because he was constrained by an injunction issued in June 20, 1855, by the US Circuit Court for the District of Columbia, and had to refuse to pay the other half of that sum.
Three people had successfully obtained that injunction: Edward Lockett, James G. Berret, and Henry D. Johnson. They lived in the District of Columbia, and on December 23, 1851, they had signed a contract in New Orleans with Pemberton in which they undertook to prosecute Pemberton’s claims for the value of the slaves freed in Nassau, for which they would be paid one-half of any money that might be recovered for those losses. Since Pemberton’s two claims were awarded a total of $28,460, the three Washingtonians wanted their half. They secured the injunction to achieve that goal. It is not clear whether these three were lawyers, lobbyists, or simply claims consultants.
The case ended up in the Supreme Court in the December term, 1858.[9] Justice Samuel Nelson, an admiralty expert[10] appointed at the end of the Tyler term, wrote the Opinion. Pemberton argued that, in 1851, he needed counsel in Washington to press his claim but that the subsequent action, in 1853, of the two governments to establish an International Claims Commission to settle this claim, among others, effectively put an end to the 1851 contract. When the commission got under way, one of the three wrote to Pemberton asking for a power of attorney to represent him before the commission, but Pemberton never responded. Senator Judah Benjamin—the lawyer in the New Orleans Creole insurance case—advised Pemberton to hire English solicitors (Trinder & Eyre of London) to represent his claim before the commission. Pemberton did so, and the London lawyers were present at the argument before the commission and aided the US agent. Pemberton compensated them.
Justice Nelson found that one of the three Washingtonians, Henry D. Johnson, had in fact drawn up a memorial to the commissioners—without authority from Pemberton—but, in any event, Nelson thought it was “a very trifling matter.” Moreover, Nelson pointed out, the arguments in that memorial had already been presented by the United States. In any event, Nelson noted, the central issues of international law, which formed the basis for the award by the commission, had already been “the subject of repeated discussion between this Government and Great Britain, and also in Congress, by some of the most distinguished statesmen and jurists of the country.” Therefore, the court decided that there was “no legal or just ground” for half of Pemberton’s award to go to the three Washingtonians. The injunction was then lifted, and the State Department paid the full $28,460 to Pemberton. The Creole case was finally over.
1. The Senate gave its advice and consent on March 15, 1853. It was ratified by the United States and the United Kingdom on March 17 and June 29, respectively, and ratifications were exchanged in London on July 26, 1853.
2. Sir Edmund in 1865 would become the first chief judge of the British Supreme Court for China and Japan, which dealt with cases involving British subjects, in accordance with extraterritorial rights the United Kingdom acquired by treaty.
3. Jessica M. Lepler, The Many Panics of 1837: People, Politics, and the Creation of a Transatlantic Financial Crisis (New York: Cambridge University Press, 2013), 11. The author does not identify Francis Baring as Alexander Baring’s second son, but his grandfather, Francis Baring, died in 1810.
4. John E. Noyes, “The Caroline: International Law Limits on Resort to Force,” in International Law Stories (New York: Foundation Press, 2007), 293.
5. The division was as follows: Edward Lockett = $22,250; John Hogun = $8,000; William H. Goodwin, for self and Thomas McCargo = $23,140; John Pemberton, as liquidator of the Merchants’ Insurance Company of New Orleans (first claim) = $12,460; G. H. Apperson and Sherman Johnson = $20,470; P. Botchford = $2,136; John Pemberton, as liquidator of the Merchants’ Insurance Company of New Orleans (second claim) = $16,000; and James Andrews = $5,874.
6. David Brion Davis, Inhuman Bondage: The Rise and Fall of Slavery in the New World (New York: Oxford University Press, 2006), 269. Dr. Davis is Sterling Professor of History Emeritus at Yale University, and a Pulitzer Prize winner.
7. Maggie Montesinos Sale, The Slumbering Volcano: American Slave Ship Revolts and the Production of Rebellious Masculinity (Durham: Duke University Press, 1997), 144.
8. These two cases were brought by McCargo (for nineteen slaves) and Lockett (for fifteen slaves). In the Louisiana Supreme Court case (treated in chapter 7), these two claims won in the Commercial Court, and those verdicts were affirmed by the Supreme Court.
9. John Pemberton, Liquidator of the Merchants’ Insurance Company v. Edward Lockett, James G. Berret, and Henry D. Johnson, 62 US 257 (1858).
10. In 1871, President Grant appointed Justice Nelson to serve on the US-UK Claims Commission in London, with respect to the Alabama claims arising out of the Civil War.
Chapter 9
A Former Slave’s Heroic Slave
As the Creole affair began in late 1841, the former slave from Maryland’s Eastern Shore, Frederick Douglass (nee Fred Bailey), was living in New Bedford, Massachusetts. It was there that he gave his first major antislavery speech, encouraged by the abolitionist William Lloyd Garrison. Douglass then moved throughout the North, lecturing on the abolitionist cause. Four years later, when the Louisiana Supreme Court decided the Creole insurance claims, Douglass published the first of his autobiographies, the eloquent Narrative of the Life of Frederick Douglass, an American Slave, which became a best seller. Unfortunately, this notoriety brought with it increased threats of harm. Some thought that slave catchers might capture him and return him to his “owner,” Thomas Auld. Therefore, Garrison and others urged Douglass to make his first trip abroad, to embark on a lecture tour of Ireland, England, and Scotland.
In August 1845, Douglass left the United States for Ireland, the first stop on what would become a two-year lecture tour of the British Isles. In some ways, his period in Ireland was awkward for him, since he was an Anglophile—in part because of the enormous leadership the English provided in the drive for abolition—in a place where most people had only bitter feelings toward their English and Anglo-Irish ruling class. Moreover, Irish Americans and the Irish Catholic Church in the United States were far from warm toward the cause of black freedom and equality.[1] Douglass’s arrival in Ireland coincided with the arrival of the Great Famine provoked by a potato disease known as the potato blight. In part because of the blight, Douglass witnessed poverty in Ireland greater than he had seen anyw
here in the United States.
Frederick Douglass, the great American abolitionist and orator (1818–1895). This photo was taken about seventeen years after he published The Heroic Slave.
On the positive side, his white hosts treated Douglass as an equal, an extraordinary experience for the young former slave. Perhaps as important, Douglass met Daniel O’Connell, the great Irish Liberator. O’Connell was from an Irish Catholic aristocratic family and was the most famous barrister in Ireland. He was the leader of the fight that, in 1829, led the British Parliament to grant Catholic emancipation, which in turn enabled O’Connell to be elected to the Parliament from Kerry. A decade later, O’Connell became the first Catholic lord mayor of Dublin. Douglass and O’Connell met at a huge rally in Dublin. A prominent novelist described the meeting:
[O’Connell’s] words shot up out of him, huge, fearsome, brimming. It astounded Douglass, the logic, the rhetoric, the humor. . . . O’Connell held the crowd in the well of his outstretched arms. . . . Douglass stood, transfixed. . . . Douglass forced his way through, excused himself past dozens of pairs of shoulders. O’Connell looked up, knew immediately who he was. They shook hands.—An honor, said O’Connell. Douglass was taken aback.—Mine alone, he said. There was so much Douglass wanted to speak of: repeal, pacifism, the position of the Irish clergy in America, the philosophy of agitation. . . . Two days later . . . O’Connell brought him on stage and he thrust Douglass’s hand in the air: Here, he said, the black O’Connell. Douglass watched the hats go up into the rafters.[2]
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