The Court of Vice Admiralty at Sierra Leone and the abolition of the West African slave trade.

• Author: Helfman, Tara

NOTE CONTENTS INTRODUCTION I THE HISTORICAL CONTEXT A. The Population Imperative B. The Geopolitical Imperative II. CHIEF JUDGE THORPE AND THE COURT OF VICE ADMIRALTY A. Thorpe's Jurisdictional Dilemma B. Thorpe's Theory of Prize Jurisdiction over Slave Ships C. The Geographic Scope of the Court's Jurisdiction III. DEALING A DEATH BLOW TO THE EUROPEAN SLAVE TRADE A. British Abolitionism Becomes Lucrative B. Toward a Diplomatic Crisis C. Le Louis in Context IV. THE TRADE IN WEAPONS OF MASS DESTRUCTION: SOME LEGAL PARALLELS CONCLUSION INTRODUCTION

In 1807 the British Court of Vice Admiralty at Sierra Leone embarked on an unprecedented experiment in international humanitarian intervention under the auspices of its Chief Judge, Robert Thorpe. From the court's seat at Freetown, Thorpe authored and implemented a judicial policy that hastened the demise of the trans-Atlantic slave trade and challenged the principles of free navigation that remain the subject of fierce legal controversy to this day. During the first half of the nineteenth century, the British colony of Sierra Leone served as a naval base from which the Royal Navy aggressively intercepted and captured foreign vessels involved in the trans-Atlantic slave trade. Thorpe's court adjudicated cases involving those captive ships and released their human cargo into the colony. The court ordered the release of so many captive Africans in Sierra Leone that, by 1850, approximately 40,000 freed slaves lived in the precincts of Freetown alone. (1)

This Note offers a historical narrative of this early and bold judicial experiment in humanitarian intervention. First, the Note will explain the role that British courts played as the enforcers of a nascent international legal norm prohibiting the slave trade. Second, in recounting Chief Judge Robert Thorpe's tenure on the court, it will offer a case study of judicial actors at the vanguard of social and legal change. (2) Third, it will present, for the first time, a full account of the direct historical context of the celebrated Le Louis case, which affirmed the principle that no state may board, search, or otherwise exercise jurisdiction over the ships of another state in peacetime. (3) Finally, it will discuss how the work of Thorpe's court relates to current challenges to the traditional law-of-the-sea regime governing freedom of navigation, paying particular attention to the challenges posed by the Proliferation Security Initiative.

The research presented in this Note fills an important gap in the existing literature on the abolition of the slave trade. In his masterful study of the Royal Navy's role as the strong arm of Britain's abolitionist ambitions, Christopher Lloyd wrote that "[t]he Slave Trade was ... suppressed by the twin weapons of diplomatic pressure and the exercise of naval power." (4) The role of these twin powers can hardly be overstated. Yet absent from Lloyd's study--and the historiography of Sierra Leone altogether--is an account of the role that the Court of Vice Admiralty played as the third pillar supporting the suppression of the slave trade. The court, which sat from 1807 until it was replaced by the Courts of Mixed Commission in 1827, mediated between the twin powers of diplomacy and naval might. Of the three premier historians of Sierra Leone, (5) only Christopher Fyfe has discussed the work of the Court of Vice Admiralty, and his treatment of the subject is quite cursory. (6)

A possible reason for this gap in the historiography is that the British admiralty courts followed civil rather than common law procedure. Because the study of the admiralty courts requires knowledge of this distinctive body of law, historians of English law and British history have frequently overlooked the records of admiralty courts, thus neglecting the central role these courts played in adjudicating international disputes. (7) Moreover, case law reporting by the High Court of Admiralty in London was not formalized until 1798, (8) while reporting by the courts of vice admiralty was never formalized at all. Consequently, what records do survive from the vice admiralty courts are relatively few, dispersed, and incomplete. Scholars of the history of Sierra Leone appear to have overlooked the archival sources that constitute the core of this account: the correspondence and court records of the Court of Vice Admiralty at Sierra Leone. (9)

The British courts of vice admiralty were, by merit of their prize jurisdiction, uniquely situated to deal with politically sensitive legal questions. Prize cases-cases stemming from disputes over the wartime rights of neutrals and belligerents to engage in trade and transport by sea--were invariably shot through with political, diplomatic, and military considerations. These cases required a judge to be legally ambidextrous--to be as proficient in the laws of his home state as he was in treaty law and the law of nations, all the while bearing in mind the impact of his decisions on military and diplomatic affairs. Courts with prize jurisdiction sat at the intersection of wartime diplomacy and international law, and their judges (particularly Thorpe) were acutely aware of this fact. Consequently, British admiralty courts proved especially fruitful ground for the development of international public policy.

Part I of this Note will show how humanitarian and geopolitical imperatives forced the interests of private philanthropists and public officials to converge squarely on Freetown in 1807. In the process, this Part will explain how the American and French Revolutions led to Britain's abolition of the slave trade and the establishment of a colony at Sierra Leone. Part II will focus on the manner in which Chief Judge Robert Thorpe carved out a commanding legal regime from his humble Court of Vice Admiralty at Sierra Leone, attempting to make Great Britain the enforcer of a near-universal ban on the West African slave trade. Part II will also track the development of Thorpe's early experiment in humanitarian intervention through its almost eight-year duration (1808-1815). Part III will then illustrate how diplomatic pressure led to the ultimate demise of Thorpe's tenure as Chief Judge of the Court of Vice Admiralty at Sierra Leone-but not until after the pressure Thorpe exercised from the bench had helped set in motion the demise of the slave trade itself. Part IV will demonstrate how the reevaluation of the freedom of the seas regime that Thorpe helped precipitate has a modern parallel in the current Proliferation Security Initiative, which seeks to constrain the seaborne trade in weapons of mass destruction.

1. THE HISTORICAL CONTEXT

   In order to understand the legal context in which Robert Thorpe presided over the Court of Vice Admiralty at Sierra Leone, it is important to understand the historical context in which the colony itself was established. The origins of the Sierra Leone colony were bound up with the aspirations of British abolitionists--private individuals who strove to effect humanitarian change on an international scale. The first British settlement at Sierra Leone in 1782 was the culmination of what one historian has called "the great period of abolitionist euphoria." (10) The creation of a free territory on the slave coast of Africa, in which not only the trade in slaves but also the institution of slavery itself was forbidden, buoyed abolitionist hopes that a general ban on the slave trade in Britain would soon follow. (11) Two sets of political pressures militated toward the fulfillment of this goal. The first was the problem of London's black poor, whose numbers had swelled with the arrival of black loyalists from North America in the wake of the American Revolution. The second was the shadow of Napoleon Bonaparte.

   1. The Population Imperative

      The first blacks who settled in the Sierra Leone colony were largely former slaves who had fought for the British (and had thus been freed) during the American Revolution. (12) After the British defeat, hundreds of freed slaves who had served in the vanquished army found themselves in poverty in London. Thousands more made their way to Nova Scotia, following Britain's promises of free land--promises that would ultimately prove empty. (13) This new population, referred to as the "black poor," attracted the attention of an influential alliance between evangelical Christians, who saw the black poor as victims of a trade the evangelicals sought to abolish, and prominent London merchants and bankers, who sought to reward black loyalists for their service to Britain. These two groups banded together to form the Committee for the Black Poor in 1786. (14) Yet, as Stephen Braidwood has noted, the Committee "realised at a very early stage that the provision of immediate relief, however welcome, was no long-term answer to the problem of deep poverty among London's black population." (15) Resettlement in Africa was the Committee's solution. (16)

      The evangelical abolitionist Granville Sharp stepped forward, determined to effect this resettlement. Long a champion of the abolitionist cause, (17) Sharp envisioned a "Province of Freedom" in Africa for freed slaves and poor blacks. He won the support of the Clapham Sect, a group of prominent abolitionists that included Member of Parliament William Wilberforce (18) and the future Governor of Sierra Leone Zachary Macaulay. (19) The Committee also recruited Olaudah Equiano, an ardent abolitionist and former slave who had purchased his own liberty and who would later serve as commissary for the voyage to Africa. (20) With the financial backing of private donors and the support of the British Navy, Sharp and the Committee organized the first settlement expedition to Sierra Leone. In May 1787, 411 settlers arrived at the River Sierra Leone at the beginning of the malaria- and fever-ridden rainy season. They purchased approximately twenty square miles of land from a local Temne chief and...