By 1800, when Congress first authorized the seizure of slavers by commissioned vessels of the United States, the navy had achieved separate departmental status and something approaching parity with the army in number of personnel and money appropriated for it.
Several seizures were made soon after passage of the act of 1800, but otherwise naval restraint on the slave trade did not attain much more than token significance until after the War of 1812.
For one thing, it appears that many American slave traders protected themselves by switching registry to one of the nations that had not yet outlawed the traffic. Then the war itself and the accompanying British blockade effectively restricted American slave trading along with other maritime commerce.
But after 1815, the international traffic in slaves quickly revived, and enforcement of the laws against it became one of the main assignments of the peacetime navy…
In the international effort to suppress the slave trade [made illegal in the United Kingdom in 1807; and in the United States in 1808], confiscation of the offending vessel became the principal sanction and proved over the years to be a far from effective one. The critical factor, as in the case of bonding a captured ship, was the ratio of estimated risk to expected profit.
A shipload of Africans was likely to be worth ten or fifteen times the value of the vessel itself. One successful Atlantic crossing could recoup the losses from several captures, and the odds much of the time favored success.
Criminal sanction would have been a stronger deterrent if it had been more extensively employed, but the British, as chief enforcers, had no authority to punish foreign nationals with imprisonment or death.
They confiscated and destroyed slave ships by the hundreds, but the crews, though sometimes turned over to their own national authorities, usually went free to sail again on subsequent slaving voyages.
It was the United States, more than any other nation, that struggled with the problem of using criminal sanction against the slave trade.
Prosecuting Slavers in New York
Criminal procedure against alleged slave traders was subject to all the constitutional restraints and common law rules associated with Anglo-American justice, including presumption of innocence, the right to trial by jury, and the requirement of proof beyond reasonable doubt.
Frequently, however, the jurors proved stubbornly unwilling to convict. This was conspicuously true of several southern juries in the late antebellum period. It appears that after the year 1846, not a single person was convicted on slave-trade charges in a southern federal court.
The great majority of prosecutions were initiated in northern states, most of them in New York. There, about one-sixth of the persons indicted from 1837 to 1861 were ultimately convicted.
More than twice as many were acquitted, and the rest likewise gained their freedom, whether via nolle prosequi, because of divided juries, by forfeiting bail, or in a few instances, by simply escaping from custody.
During that period, according to the records compiled by historian Warren S. Howard [in America Slavers and the Federal Law, 1837-1862], twenty men received prison sentences averaging two years in length, but they served only about one year, on average, because of ten presidential pardons.
Fifteen of the convictions were under the law of 1800 and five under the law of 1818 [a revision of the act of 1807], which provided maximum penalties of two years and seven years, respectively.
Three men indicted under the Piracy Act of 1820 were allowed to plead guilty to the act of 1800. One was not so lucky.
Captain Nathaniel Gordon, thirty-three-year-old member of a Maine seafaring family, had become involved in slave-trading at a young age, perhaps as early as 1848.
His ship, the Erie, was seized off the Congo Coast in August 1860 with 897 slaves aboard, and ten months later he went on trial in the circuit court for the southern district of New York, charged with the capital crime of piracy.
The jury could not agree on a verdict, primarily because Gordon’s two mates swore to his innocence, but the district attorney, a newly installed Republican, determinedly sought more witnesses and instituted a second trial in November 1861. Four members of the Erie’s crew were now on hand to testify against their captain.
Along with other arguments, defense counsel maintained that the ship, at the time of its capture, was owned and commanded by Spaniards; that Gordon was just a passenger when the slaves were taken aboard; that the crime had been committed in Portuguese rather than international waters; and, most desperately, that Gordon was perhaps not an American citizen because he might have been born abroad during one of his parents’ voyages.
The court brushed aside all technical objections, and the jury pondered for only twenty minutes before returning a verdict of guilty. Gordon was sentenced to death.
The Supreme Court refused to intervene, and so did President Lincoln, except for granting a short reprieve. Gordon, after attempting to poison himself in his cell, died on the gallows on February 21, 1862.
The punishment seemed all the more extreme because of its uniqueness. No other American suffered death as a slave trader or even served a long prison term for the crime. The two mates on the Erie, though scarcely less culpable than their captain, were allowed to plead guilty under the act of 1800 and escaped with sentences of eight and nine months…
There is no telling how many Americans were dissuaded from entering the slave trade by the very existence of the law. We do know that the fear of hanging sometimes led culprits to conceal or forswear all connection with the United States and surrender to the British navy as persons subject to its police authority.
It was because of the same fear, moreover, that prior to the late 1850s, Americans involved in the slave trade generally avoided association with the actual shipping of slaves. Thus, for most of its life, the Piracy Act seems to have had a deterrent effect that greatly reduced the occasions for its punitive use. Indictments under it were, in any case, very few before 1858.
Most of the American slavers seized with Africans aboard and therefore qualifying as pirates under the act of 1820 were taken during the brief period from April 1860 to April 1861, a time of national crisis culminating in the outbreak of civil war.
They were eight ships in all, carrying a total of more than five thousand slaves. Federal courts of admiralty confiscated seven of them: three in New York, one in Virginia, and three in Florida. Criminal prosecution proved much less effective, however, particularly in the South.
A Florida grand jury refused to indict one captain; a trial jury acquitted another; and apparently no action at all was taken against the third. Indictment of the slaver captain in Virginia seems likewise to have led nowhere.
In New York, where two captains, seven mates, and an owner were indicted, prosecutors did manage to secure five convictions, only one of which, however, was on a capital charge. Their efforts were frustrated in two instances by divided juries and in two others by escapes from custody…
By the 1850s, New York in particular had become notorious as the place where more slave-trade voyages were being organized, financed, and fitted out than anywhere else in the world.
The taint extended also to the United States government, both for failing to exercise adequate control over its own citizens and for allowing foreign slavers to shield themselves behind American registry and the American flag.
According to many a contemporary critic and more than one historian, federal officials were chronically negligent in their execution of the slave-trade laws, owing in large part to a systemic pro-slavery bias.
Don E. Fehreenbacher is the author of The Slaveholding Republic: An Account of The United States Government’s Relations to Slavery (Oxford University Press, 2001), from which this essay is excerpted.
Read more about slavery in New York.
Illustrations, from above: A map of slave trade routes (courtesy Equal Justice Initiative); A group of enslaved people, nearly starved to death, who were rescued from a trafficking ship (The National Archives of the UK); An illustration published in an 1833 anti-slavery periodical shows traffickers throwing enslaved people overboard; Slaver Captain Nathaniel Gordon; Detail of an illustration of Gordon being prepared for hanging as a crowd of men looks on (Harper’s Weekly); and “Africans on Board the Slave Bark Wildfire,” April 30, 1860 from Harper’s Weekly, June 2, 1860.
