Seeking Capture, Resisting Seizure
An International Legal History of the Anglo-Brazilian Treaty for the Suppression of the Slave Trade (1826–1845)
Adriane Sanctis de Brito
Global Perspectives on Legal History 22
Frankfurt am Main: Max-Planck-Institut für Rechtsgeschichte und Rechtstheorie 2023. XII, 224 S.
Online-Ausgabe: Open Access (PDF-Download, Lizenz: Creative Commons CC BY 4.0 International)
Druckausgabe: 18,90 € (Print on Demand bei ePubli)
ISSN 2196-9752
ISBN 978-3-944773-42-1
eISBN 978-3-944773-43-8
Quotation link of the online version: http://dx.doi.org/10.12946/gplh22
The treaties to suppress the slave trade were the subject of intense legal battles and debates in the first half of the 19th century. By delving into the legal disputes that took place within the context of the Anglo-Brazilian treaty, this book highlights the political importance of what might at first glance be perceived as little more than argumentative hurdles over the rules and proceedings regarding the search and capture of ships. Some of these legal battles were carried out in the correspondence between the Foreign Offices, sometimes between diplomatic representatives or within mixed commissions, while still others involved the process of interpretation and the resignification that took place over the course of years and involved a multiplicity of exchanges between various actors and institutions.
Britain constantly pushed to expand the legal use of force and possibilities of capture within the spaces outlined by the treaty regime. Brazil actively engaged in the legal interpretation, and in so doing created an argumentative onus that would later continue to transform British legal approaches and the very expectations about the content of the law the two parties were applying.
By constantly challenging the scope and limits of the treaty, Brazilian representatives slowed down the process of abolishing the slave trade, thus preserving the perverse practice, while at the same time protecting Brazil’s independence against the expansion of British interference. Whether reading the bilateral treaty clauses as analogous to or differently from prize law or general international law, the day-to-day interpretation forged anti-slave trade rules that kept ships, instead on enslaved people, protagonists of slave trade suppression mechanisms.
This history of the Anglo-Brazilian treaty provides more detail about the mechanisms created by international law to combat the slave trade. It also reveals the complex legal translations of state inequality, humanitarianism, violence, and the fine line between war and peace.
Contents
V Acknowledgements
1 Introduction
Chapter 1
11 Weaponising Treaties: The British Fight Against the Slave Trade
12 A.
‘Setting the navy free to do its work’ in war and in peace
12 Prize law, neutrality and the flags
15 Change in case law
21 B.
The ways of treaty-making
21 Times for treaties
24 Multilateral conferences
27 The piracy alternative
29 C.
A network of bilateral treaties
29 Overall production
31 The British system and variation in treaties
Chapter 2
37 The Triple Formula’s Teeth: The Power to Visit, Capture and Adjudicate Ships
39 A.
The right of visit (and search)
39 ‘Decoupled’ visitation
40 In the absence of a treaty
44 B.
Spotting, visiting and capturing ships
44 The captor’s position
47 Forms and directives
56 C.
Judging the ships in the dock
56 Forms and practice
62 Liberation and traces of prize law
65 The point of mixed commissions
Chapter 3
71 The Brazilian Debut: Consenting to the Slave Trade Abolition
73 A.
A colonial heritage
73 The Anglo-Portuguese regime
78 Times of transition
79 B.
A new treaty regime
79 Independence and recognition
81 Three versions of the triple formula
84 Starting point
Chapter 4
89 A Treaty in Motion: Between War and Peace
93 A.
Search in visitation
93 Inspection of papers
94 Sealed papers
96 B.
Detention for equipment
96 Equipment clause
100 Enough for good prize
106 C.
Flags under adjudication
106 Commissions and prize experience
107 Two versions of mixed commissions
112 Form of the process
116 Jurisdiction and nationality
124 Restitution without indemnities
133 The shield of non-appeal
Chapter 5
145 Interpreting their Way out: A Dismantled Triple Formula
148 A.
Changing jurisdication
148 Colourable nationality returns
152 Liberation and deviation of vessels
159 Attempt to extinguish mixed commissions
163 B.
Piracy revisited
163 Expiration of the triple formula
167 After the Aberdeen Act
175 Conclusion
179 Abbreviations
183 Sources and Bibliography
183 Archives and Printed Sources
185 Bibliography
193 Appendix
209 About the Author