Tyler’s administration was conciliatory in several ways. President Tyler replaced U.S. minister to Britain Andrew Stevenson. Stevenson was a hot-headed, slave-owning Democrat from Virginia who had been accused by Daniel O’Connell, the Irish leader and antislavery writer, of being a “slave-breeder.” In typical fashion, Stevenson subsequently challenged O’Connell to a duel, but O’Connell did not accept the challenge and instead offered a backhanded “clarification” of his public statement.30 Stevenson’s replacement, Edward Everett, by contrast, was a pro-British Massachusetts Whig. If right of search cases came up, as a New Englander, Everett was not inclined to get involved; he had no interest in defending slavery.
On the British side, Lord Palmerston (who was rather contemptuous of U.S. claims to rights of various kinds) was out of office by 1842. Lord Wellington, who was very conciliatory to the United States, was now minister without portfolio. Alexander Baring (Lord Ashburton), sent to Washington to negotiate as a minister with plenipotentiary powers, was also more conciliatory, as was U.S. secretary of state Daniel Webster. Webster was, like Everett, a Massachusetts Whig and a leading advocate of North-South compromise. Furthermore, Webster had been an opponent of the War of 1812. Like other conservative Massachusetts Whigs, he sought to avoid war with Britain and was no defender of slavery. Thus, cooler heads prevailed on both sides of the Atlantic.
Even so, some spokesmen for a strong anti-British position on the issue continued in office. Lewis Cass served as U.S. minister to France into 1842. There he published a pamphlet that was intended to influence French deputies to reject the Quintuple Treaty, which conceded the right of search.31 Lewis Cass was a “popular sovereignty” supporter of the rights of American slaveholders and a strong defender of American honor when it came to British insults. When the French did not include a distinct or explicit denial of the right of search in their negotiation of the Quintuple Treaty, Cass resigned his position as minister to France, claiming that the French negotiation of the treaty “compromised his position.”32 However, Cass’ position prevailed, as the treaty was not ratified by France, and the French foreign minister, François Guizot, informed General Cass that France would never concede the right of search during peacetime. In further diplomatic notes in 1845, the French made it clear that they rejected any British claim to a right of search during peace.33 That issue resurfaced in the 1890s with regard to the East African slave trade carried on under French flags on board dhows owned in Oman (discussed in chapter 5).
The British interpreted Clause 8 of the Webster-Ashburton Treaty, which established cooperation on the squadron level, as “conceding the Right of Search,” but President Tyler declared emphatically that no such right was conceded. In the Senate, Thomas Hart Benton, an outspoken defender of national honor, roundly criticized Daniel Webster for giving in to Britain.34 In response to Benton’s criticism, Webster released to the press a letter he sent to Everett showing that he did not regard the treaty as conceding any “right” to search or visitation and that he thought the cooperation of naval officers on the scene would put an end to false flag uses.35 In effect, Webster was claiming that the treaty resolved the issue, and at the same time he was publicly and officially stating to Britain that no right had been conceded. After Webster’s letter was published, the right of search issue subsided. Over the following years, the U.S. press turned to other concerns—the admission of Texas to the Union, the war with Mexico, the California gold rush, the admission of California to the Union, the Compromise of 1850, and the burning issue of slavery in the federal territories acquired from Mexico in the 1846–1848 war.
From 1842 to 1860, the U.S. West African Squadron (and other U.S. naval ships and government vessels such as revenue cutters) successfully seized and condemned or destroyed more than fifty slave ships.36 Some of them had been flying the U.S. flag as a false flag. Since U.S. naval ships were not allowed to detain any ships equipped for the trade but only those with slaves on board, often a slave transport ship so equipped would fly the U.S. flag as it approached the African coast, then, after the slaves had been loaded, the ship would be “sold” to a Spanish citizen and a Spanish flag hoisted. The ship would then sail past the U.S. squadron, which had no agreement with Spain to interdict slave ships. The Royal Navy could stop the Spanish-flagged ships, but U.S. naval officers were powerless to do so.37 The U.S. record of slave-ship interdiction was far surpassed by the British antislavery squadron, which captured and condemned more than fifteen hundred vessels.
Few scholars have offered interpretations of the decline of the right of search issue from the mid-1840s to the late 1850s. Historian W. E. B. DuBois, writing in 1896, suggested that one of the reasons for the decline was that members of Congress would not come to the defense of U.S.-flagged slave ships because the detentions had “revealed so much American guilt that it was deemed wiser to let the matter end in talk.” DuBois pointed out that in 1850 an investigation by the Fillmore administration showed that out of ten U.S.-flagged ships detained by the British, nine were proven to be slavers.38
Donald Canney, in his definitive work Africa Squadron: The U.S. Navy and the Slave Trade, 1842–1861, pointed out several factors that contributed to the decline of the issue from the mid-1840s to the late 1850s. With U.S. ships patrolling the coast, somewhat fewer slave ships resorted to the U.S. flag. There was a lull in the slave trade itself in the early 1850s. The gold rush of 1849–1855 drew many U.S.-built ships to the California route and away from the slave trade. Furthermore, legitimate U.S. traders were permitted to trade directly with Britain because of the British suspension of the Navigation Laws in 1849, also drawing ships away from the African trade.39
A thorough study of the debate over the British exercise of the right of search was written by Howard Hazen Wilson and published in the Journal of International Law. In this study, Wilson held that the Americans were correct to insist that there was no right of search in peacetime and to demand that the British inspections of potential slave ships displaying the U.S. flag not be conducted under some extension of the wartime right of search. Rather, he argued, the searches should have been justified in some other fashion.40
The Issue Revived and Resolved
After the issue had lain dormant for years, in 1857–1858 the British searched and detained several more ships flying the U.S. flag, and once again American tempers were raised.41 In these two years, at least another fifteen U.S. ships were boarded or visited by British officers, off West Africa and also in the West Indies, and numerous U.S. ship masters filed complaints or reports in the United States. Again, Lewis Cass, now secretary of state under President James Buchanan, took the lead in protesting the infringement of American rights, clarifying once again that the United States had not conceded the right of search in the Webster-Ashburton Treaty. On April 10, 1858, he sent the following note to Lord Napier, the British minister in Washington: “To permit a foreign officer to board the vessel of another power to assume command of her, to call for and examine her papers, to pass judgment upon her character . . . to send her in at pleasure for trial, cannot be submitted to by any independent nation without injury and dishonor [italics in original]. The United States deny the right of the cruisers of any other power whatsoever, for any purpose whatsoever, to enter their vessels by force in time of peace.”42 The relative disappearance of the issue after 1843 and its sudden reappearance in 1857–1858 are striking, as is Lewis Cass’ evocation of the issue of honor.
Several developments together account for the revival of the issue in the mid- and late 1850s. First, there was another change in personnel. Not only was Cass secretary of state, but in Britain, Palmerston, back in the cabinet, was more aggressive on this score than others, and he was reputed to be emboldened by the British election results of March 1857.43 Second, slave transportation in the West Indies had recently resurged owing to increased prices for slaves in the United States and Cuba.44 Third, news reports showed the outfitting of an estimated forty to eighty-five U.S.-built ships