On mixed commissions as early human-rights courts, see especially Martinez, ‘Antislavery Courts’; and on mixed commissions generally, see Bethel, ‘The Mixed Commissions’; Helfman, ‘The Court of Vice Admiralty at Sierra Leone’; Emmer, ‘Abolition of the Abolished’. The view that these forums were early human rights courts has been repeated by some historians of the history of abolition who write about the movement generally. See Drescher, Abolition, 237. In the most careful assessment of their operation and impact, David Eltis has noted that the commissions were largely operated by British officials that they were limited tools for suppression of the trade, in part because they applied commercial penalties but not criminal punishment for traders. Eltis, Economic Growth, 91, 111.

Nadelmann, ‘Global Prohibition Regimes’.

On the argument that the bilateral treaty regime represented a significant shift in international law, see Allain, ‘Nineteenth Century Law of the Sea’ and Keene, ‘The Construction of International Hierarchy’.

Eltis, Economic Growth, 83, 90.

This shift in attention to the period leading up to the mixed commissions imitates the approach of Christopher Brown in analysing abolition discourse by moving his analysis to the middle decades of the eighteenth century. Brown, Moral Capital.

The symbiotic relation between order and rights, with order sometimes featured as the dominant legal and political objective, has been noted by scholars in other settings. Jeremy Adelman has argued that the Latin American republics in the nineteenth century developed a constitutionalism focused more on order than on rights. Paul Halliday has shown that a similar logic framed habeas corpus in the British empire, where, despite the discourse about rights that accompanied debates about the use or suspension of the writ, it aimed at regulating the relation between sovereign power and the jailer. I have argued elsewhere that Spanish and British empires in the period between 1780 and 1840 showed more similarities than differences in the focus on the scope of delegated legal authorities in empire. See Adelman, Republic of Capital, 195–96; Halliday, Habeas Corpus; Benton, Search for Sovereignty, chap. 4. For a work questioning the traditional chronology of the emergence of human rights, see Moyn, Last Utopia.

Leading up to this period, the admiralty jurisdiction in the British empire had been shrinking for centuries. Common law courts routinely issued writs of prohibition in the fourteenth and fifteenth centuries to challenge the jurisdiction of English admiralty courts over a wide range of kinds of litigation involving ships and their cargos. By the end of the seventeenth century, and despite efforts by civilians to protect the purview of the courts over disputes arising anywhere in foreign territories, admiralty courts had lost their jurisdiction with regard to maritime contracts arising on land at home or abroad. This meant that the courts' ‘instance’ jurisdiction was reduced to consideration of mainly cases having to do with the treatment and wages of seamen. The admiralty courts retained criminal jurisdiction over acts committed on board ships, including mutiny and piracy, while incorporating common law procedures. And they held onto jurisdiction over prize cases, or the adjudication of captures of enemy vessels in time of war. This was a lucrative area of practice for the courts and for the civilians staffing them. For an excellent summary of trends in admiralty proceedings and jurisdiction, see Bourguignon, Sir William Scott, Lord Stowell.

See Kulsrud, Maritime Neutrality to 1780, chap. 2. Kulsrud regards the rule as already firmly established in European usage and not a break with existing practice.

The complexities of the legal politics of neutrality included the Leagues of Armed Neutrality of 1780, when Russia led a coalition including Denmark, Sweden, and the Netherlands in declaring the intention to use naval ships to defend neutral trade. See Kulsrud, Maritime Neutrality to 1780 and De Madariaga, Britain, Russia, and the Armed Neutrality.

At the same time, the courts tended to regard British subjecthood as a property carried by British sojourners anywhere in the world. Similarly, ‘nationality’ in prize courts was a term that identified ships or their owners with empires rather than with nation-states. ‘French’ ships could sail from Guadeloupe or Vannes; ‘Dutch’ captains could acquire the label from living in Antwerp or Curaçao.

McKeown, Melancholy Order.

The National Archives of Britain (hereafter TNA), High Court of Admiralty (HCA) 45/51, 426.

TNA, HCA, 45/51, 427v. The ship had been captured off Guadeloupe, an enemy territory, but claimed to be sailing for St. Thomas.

TNA, HCA 45/52 f. 301 v. Another example is that of the Hiram, captured on a voyage from St. Sebastian in Spain to St. Thomas and taken to Tortola, where an American citizen claimed ship and cargo in the vice-admiralty court. The ship and cargo were condemned as enemy property, but the judgement was reversed on appeal, pending the supply of further proof of the ownership of the cargo. TNA HCA 45/53, ff. 160–73.

TNA HCA 45/52, f. 98.

The Lords Commissioners of Prize Appeals, members of the Privy Council, heard appeals from the High Court of Admiralty and from colonial vice-admiralty courts.

TNA, HCA 45/51, 448, 456. Emphasis in original.

TNA, HCA 45/51, 479v.

TNA, HCA 45/51, 471.

James Stephen, War in Disguise.

Ibid., 67.

Ibid., 179.

Ibid., 99.

Ibid., 107

Historians of the period have often taken note of the tract without drawing direct connections to abolition. An exception is Anstey, Atlantic Slave Trade, 352.

Stephen, War in Disguise, 75.

Ibid., 71. Emphasis in original.

Dodson, Reports of Cases, 92–94.

Ibid., 96.

For example, African Institution, Fourth Report of the Directors of the African Institution.

For example, Murray, Odious Commerce, 40.

This is from Richard Henry Dana's commentary on Henry Wheaton's discussion of the case. Wheaton, Elements of International Law, 132, n. 86.

For an assessment of Scott's career that argues that defining nationality was central to his contributions to jurisprudence in the prize courts, see Bourguignon, Sir William Scott, Lord Stowell.

Scott regarded it as ‘a most extravagant assumption in any court of the law of nations, to pronounce that this practice, the tolerated, the approved, the encouraged object of law, ever since man became subject to law, was prohibited by that law, and was legally criminal’. Dodson, Reports of Cases, 250. Scott questioned the notion that the slave trade could be considered piratical, noting that ‘it was not piracy by the laws of this country.’ (Dodson, Reports of Cases, 220). An act passed in 1811 had made participating in the slave trade a criminal offence, for which the punishment was transportation; no such law would have been required to outlaw piracy. Scott also reasoned that even if slave traders were pirates, they would retain their rights to ‘dispose of their own property’. (Dodson, Reports of Cases, 22).

Dodson, Reports of Cases, 251. Further, Scott observed that the fact that slavery itself continued to be legal meant that people were being held in bondage under a claim to original title that rested on the legality of the act of purchasing slaves.

Dodson, Reports of Cases, 98, 240.

By the time the Antelope case was under review, Artigas had been exiled to Paraguay. Even at the time the Columbia sailed from Baltimore, Artigas's forces were close to defeat, and for some time had not been in possession of a deep water port. Blank commissions signed by Artigas had been taken by the British ambassador to the government of Buenos Aires to Baltimore and sold there. Artigas was at war with Portugal and so the commissions were valuable aids to raiding against Portuguese shipping. His leadership of a breakaway force in South America also allowed the commissions to be interpreted as covering attacks on Spanish shipping. See especially Beraza, Los Corsarios de Artigas.

Smith was charged with taking goods of small value off a French ship, seizing an unnamed Portuguese ship, and taking the Antelope.

Noonan, The Antelope, 63.

The Antelope, 23 U.S. 10 Wheat. 66 (1825).

Story was more inclined that Marshall to adopt this approach and in fact was responsible for several rulings that implied his willingness to define slave trading as abolished under the law of nations. See Rubin, Law of Piracy, chap. 3.

Trial of Captain John Kimber, 1792.

On this problem in an earlier period, see Ritchie, Captain Kidd; Benton, Search for Sovereignty, chap. 3.

TNA Home Office (HO) 17/1/1.

From Report of the Commissioners of Inquiry Upon the Slave Trade at Mauritius (London, 1829), quoted in ‘Slave Trade at the Mauritius’, 141.

TNA, Colonial Office (CO) 167/43.

Quoted in ‘Slave Trade at the Mauritius’, 142.

Allen, ‘Licentious and Unbridled Proceedings’, 91–116, 106.

‘Slave Trade at the Mauritius’, 143.

TNA, CO 318/82, f. 1–4.

Ibid., f. 5v.

Ibid., f. 6.

Ibid., f. 6. The report noted that British law commanded that survivors of a wreck, including slaves, should be considered free persons. But it conjectured that the residents of Anegada and Spanish Town would not have saved any of the slaves if locals had expected the slaves to be freed.

On slave ship insurance, see Oldham, ‘Insurance Litigation’.

See Adderly, “New Negroes from Africa”.

Belisario, Report of the Trial of Arthur Hodge, 36.

Ibid., 82, 171.

The sequence of moves is apparent in the debates leading up to passage of the Abolition Act. See Substance of the Debates, 172, 174, 193. Throughout the West Indies, abolitionists attacked slave owners' prerogatives by drawing special attention to the two acts in particulars: the whipping of female slaves and leniency for whites who murdered slaves.

Drescher, History of Slavery and Anti-Slavery, 206.

See Hulsebosch, Constituting Empire and see Benton, Search for Sovereignty, especially chap. 4.

Christopher Brown makes this point: ‘Reducing the power masters held over slaves required, in some way, reducing the power slaveholders possessed in the governance of colonial societies … Even if emancipationists could generate momentum for slavery reform, did the crown or Parliament have the standing and resources to make such measures enforceable by law?’ Brown, Moral Capital, 240–1.

The courts were staffed predominantly by British judges because in many cases, other nations did not replace judges who left their posts or died. The British navy was solely responsible for the vast majority of ships brought to the commissions. See Bethell, ‘Mixed Commissions’ and Brown, ‘Abolition of the Atlantic Slave Trade’.

Historians arguing that abolition favoured British interests have tended to emphasise the economic benefits to Britain, while others have disputed the notion that slavery and the slave trade acted as drags on imperial economies. Two valuable overviews of historiography on abolition are Drescher, Abolition and Brown, ‘Abolition of the Atlantic Slave Trade’. See also Eltis, ‘Was Abolition of the US and British Slave Trade Significant?’. Christopher Brown makes a case for separating the study of abolition and emancipation but notes that although ‘abolition did not require, as emancipation would, a protracted struggle with colonial legislatures’ it did demand the articulation of a vision of successful production and commerce without slaves. Brown, Moral Capital, 321.