Keene British Treaty Making West Africa XIXth

International Organization Foundation
A Case Study of the Construction of International Hierarchy: British Treaty-Making against the Slave Trade in the Early Nineteenth Century Author(s): Edward Keene Source: International Organization, Vol. 61, No. 2 (Spring, 2007), pp. 311-339 Published by: Cambridge University Press on behalf of the International Organization Foundation Stable URL: http://www.jstor.org/stable/4498147 . Accessed: 16/09/2011 14:23
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A Case Study of the Constructionof International Hierarchy: British Treaty-MakingAgainst the Slave Trade in the Early Nineteenth Century
Edward Keene
This article evaluates different theories of hierarchy in international Abstract relations througha case study of the treaty system that the British constructedin the early nineteenthcentury in an effort to abolish the slave trade.The treaty system was extraordinarily wide-ranging:it embracedEuropeanmaritimepowers, new republics in the Americas, Muslim rulers in northernand eastern Africa, and "Native Chiefs" on the western coast of Africa. It therefore allows for a comparativeanalysis of the various types of treaty that the British made, depending on the identity of their contracting partners.The article argues that a broadly constructivist approachprovides the best explanationof why these variationsemerged.Although British treaty-making was influenced by the relative strength or weakness of the states with which they were dealing, the decisive factor that shaped the treaty system was a new legal doctrine that had emerged in the late eighteenth century, which combined a positivist theory of the importance of treaties as a source of internationallaw with a distinction between the "family of civilized nations" and "barbarous peoples."
Despite the prominenceof the concept of anarchyin internationalrelations theory, there have been several attemptsto explain how hierarchicallystructuredsystems work in internationalrelations, why they rise and fall, why they take on the specific forms of stratificationthat they do, and what their impact is on broaderinternational outcomes such as war and peace. Some realists, for example, argue that inequalities in states' capabilities lead to the emergence of "hierarchiesof prestige," and that great powers play a special role in direction of internationalaffairs,
Some of the argumentsin this article were presentedto a seminar at the University of Chicago, and I am grateful to members of the Political Science Departmentthere for several valuable constructive criticisms. I would also like to thank Duncan Bell, Molly Cochran, Steve Hopgood, Andy Hurrell, Katja Weber,and the journal's two anonymous readers for their helpful comments on earlier drafts of the article. International Organization61, Spring 2007, pp. 311-339 ? 2007 by The 10 Foundation.
DOI: 10.1017/S0020818307070117
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often with a stabilizing effect.' Institutionalistsbelieve that states create hierarchical organizationsto reduce the costs of their transactionsand to deal more effectively with externalchallenges or threats:the higherthe costs and the more pressing the threat,the more restrictivethe hierarchyis likely to be.2 Numerous other international relations theorists-a hard-to-categorizegroup that includes members of the English school, poststructuralists, constructivists,and historical sociologistshave arguedthat internationalrelations do not only operate according to the symmetrical identities found in "cultures of anarchy"but may also be founded on asymmetrical relationships that one might call "cultures of hierarchy":relations between suzerains and vassals, empires and client states, trustees and protectorates, superiorand inferior races, and so on.3 My purpose here is to assess these different ways of thinking about international hierarchythrough a case study of the treaty system that the British constructed during the first half of the nineteenth century as part of their effort to abolish the slave trade. This particularcase has been chosen because it offers an opportunityto see how the British conducted their internationalrelations with an unusually wide range of partnersupon a single issue. In orderto suppressboth the supply of and the demandfor slaves, as well as to deal with thirdparties involved numin the carryingtrade, the British had to make treaties with an extraordinary such as France and the ber and variety of states, including other great powers, United States; weaker, and sometimes only recently independent,maritime states in Europe and the Americas, such as Brazil, Haiti, the Hanseatic Towns, Portugal, and Tuscany; "Native Chiefs" on the western coast of Africa; "ArabChiefs" in the Persian Gulf; and Muslim rulers of prominent slave-tradingstates on the eastern coast of Africa, such as the Sultan of Muscat.4
1. On the idea of a "hierarchyof prestige," see Gilpin 1981; on the role of great powers, see Clark 1989. Most realists implicitly accept the existence of some kind of hierarchyin internationalrelations by concentratingon the activities of great powers at the expense of "middle"and "small"powers; on this tendency in realist thought, see Holbraad 1984. Peace researchersalso argue that inconsistencies between status and actual capability are a cause of conflict; see Wallace 1973. 2. Weber 2000 stresses the importance of transactioncosts to internationalhierarchy.For related approachessee Milner 1993, Lake 1996 and 2003, and Cooley 2005. 3. See Wight 1977; Bull and Watson 1984; Gong 1984; Der Derian 1987; Onuf 1989; Neumann and Welsh 1991; Watson 1992; Doty 1996; Grovogui 1996; Wendt and Friedheim 1995; Buzan and Little 2000; Keene 2002; Salter 2002; Bain 2003; Dunne 2003; Hobson and Sharman2005; and Donnelly 2006. On symmetricalidentities (enemy, rival, friend) as the basis for "culturesof anarchy,"see Wendt 1999; and see also Martin 1992 for a parallel analysis of the distinction between symmetrical and asymmetricalinterests in rationalistinternationalrelations theory. 4. There is no single published collection of all the treaties. Hertslet 1840 is the most comprehensive published source; a set of papers printed in 1892 for the use of the United Kingdom's Colonial Office (CO 879/35) also contains a relatively full set of the African treaties. There are numerousstudies of British treaty-makingwith one or a few other powers (such as Corwin 1967; Bethell 1970; Nwulia 1975; Beachey 1976; and Kielstra 2000); Miers 1975 is the widest-ranging survey, but even she looks only briefly at the wording of the earlier African treaties. Grewe 2000 is outstanding on internationallegal history during the period, but, for the slave trade, he concentrates almost exclusively on the treaties with European and American powers. Other legal studies-Fischer 1950; and Nanda and Bassiouni 1972-confine themselves to a mere handful of the major agreements.
British Treaty-MakingAgainst the Slave Trade 313
Because all these treaties were made at roughly the same time and for roughly the same purpose, it is possible to see clearly how their terms varied depending on who the contractingparties were." One major difference stands out. Treaties with Europeanand American states typically stressed the sovereign equality of the parties and upheld mutuality and reciprocity as norms when dealing with ships and individuals involved in the trade.Even though, in practice, the British usually had the upper hand, they were often preparedto allow other Europeanand American states to play an active role in the process of suppression,especially by including them in the judicial enforcement of the regime, and the British were careful to respect the property rights of citizens from these countries. By contrast, treaties with African and Arab rulers seldom mentioned such principles, and then only in the early years of the nineteenthcentury when some assumption of formal equality still seems to have operated; by the 1840s, the British were making a conscious effort to avoid any suggestion of equality or reciprocity in the text of these agreements, even at the cost of restricting their scope. African and Arab rulers were also usually excluded from any role in the management or enforcement of the regime. Of course, a single case study does not help to make comparisons between this and otherhierarchical relations,6but what it loses in breadth systems in international it stands to gain in the depth with which one can analyze the reasons why these variations emerged. For a start, the fact that in this case status distinctions and their consequences were made relatively explicit in the form of written treaties is valuable, especially since questions about status are often seen, with good reason, as rathera nebulous dimension of internationalrelations that is difficult to observe empirically.7Moreover, there was a considerable, often private, correspondence about the treaties within the British Foreign Office, between the Foreign and Colonial Offices, and from the Foreign Office to the treaty negotiators. Because this correspondencelets one see precisely why the British chose to vary the terms of the treaties,especially in their crucialdecision to downgradethe agreementsoffered to African rulers, the case study provides an excellent opportunityto test the reasons that different theories offer for how internationalhierarchies develop, how restrictive they will be, and who ends up where within them. My main point is that this particularinstance of internationalhierarchywas to a Admittedly,the case does lend considerableempirlargedegree socially constructed. ical supportto realist argumentsabout the importance of the unequal distribution
5. This comparativeelement is largely absentfrom the otherwiseexcellent historicalstudies of treatymaking with non-Europeanrulers in Alexandrowicz 1967 and 1973; Jones 1982; Gong 1984; Green and Dickason 1989; Mainville 2001; and Keal 2003. The present study also adds another empirical dimension to Anghie 1999, while broadly reinforcing his argument. 6. For wider-ranging typological exercises, see Lake 2003; Cooley 2005; Hobson and Sharman2005; and Donnelly 2006. 7. The main alternative approach employs diplomatic representation and participation in international congresses as a proxy for internationalstatus: see Singer and Small 1966; Bull 1984; and Strang 1991.
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of materialcapabilities:very strong maritimestates (France and the United States) were able to win a privileged position for themselves within the treaty system, African "Native Chiefs" were in a position of weakand, of course, the unfortunate ness relative to Britain, which made it possible to discriminateagainst them in the first place. But realists face problems in explaining why it was only weak African rulerswho suffered,while weak EuropeanandAmericanstates continuedto receive comparativelygenerous treatment,even when some of them, notably Portugal and Brazil, showed a marked lack of enthusiasm for abolition and were effectively forced to negotiate their treaties at gunpoint.8Institutionalisttheories are better in this respect because they can make sense of the unusually restrictive natureof the agreements with African rulers in terms of the relatively high transactioncosts involved in making and enforcing treaties in that part of the world,9but it is still difficult for them to explain why the terms of those treaties typically became more restrictive over time, even as communications with Africa improved and beneficial economies of scale emerged. This would be true also if one were to extend the study into the second half of the nineteenthcentury,when many of the African regimes described here found themselves being drawn into the yet more restricor tive arrangements involved in treatiesof "protection" even outrightannexation.10 The main reason why African, Arab, and Muslim rulers got a worse deal than even the weakest and most reluctantEuropeanor American state was because the British saw the former as "barbarians," while they saw the latter as belonging to the "family of civilized nations."As the British themselves said, they varied the terms of the treaties they made because they thought it was appropriateto do so "to mark the distinction between the agreements with barbarousChiefs and the internationalcompacts of Civilized States."11The treaty system developed as it did because, in the thirty or forty years preceding its construction, a new discourse had developed in international legal and political thought that not only stressed the importanceof treatiesas a source of internationallaw but also insisted that treaty-makingcompetence was to be reserved to "civilized" states alone. The
8. Krasner1999, 106-9, makes much of British coercion here as evidence for the underlyingimportance of power politics to the abolitionist crusade, and in that respect he makes a fair point, but he does not then go on to discuss why the terms of the treaties eventually imposed on Portugal and Brazil were so much better than those agreed with African states. 9. For example, Temperley 1991 on the calamitous Niger expedition. From an institutionalistperspective, Weber 2000 offers a detailed study of the importance of such communications problems in the context of nineteenth-centuryinternationalrelations. of 10. See Robinsonand Gallagher1961; andAlexandrowicz1973. Independently the struggleagainst the slave trade, a few protection treaties were made by the British in the period from about 1820 to 1850, but they were extremely wary of linking protection to the antislave trade treaties, usually for reasons of thrift.A protection clause was written into the original draft of the agreementto be offered to African chiefs on the Niger Expedition but was deliberately omitted from the final version of the agreement, being reduced to an additional article to be included at the negotiator's discretion. See Lord John Russell to GovernorDoherty, 30 September 1840, CO 267/163; and see also the drafttreaty and final agreement form used on the Niger Expedition, CO 2/21. 11. Colonial Office Minute by James Stephen, 6 September 1841, enclosed in Gov. Huntley to Lord John Russell, 24 April 1841, CO 87/25.
British observed this principle as best they could, even at the risk of undermining the very regime they were trying to construct. I will begin with a brief sketch of how this discourse emerged, and how it differed from earlier ways of thinking, not least because it is essential to understandwhy the British were so interestedin treaty-makingin the first place. Then I chart the different kinds of treaty that the British made, before concluding with a discussion of how one can best explain the structureof the system that eventually developed.
Treaty-Making, Civilization, and Barbarism

It is worth taking a moment to ponder the apparentlyinsignificant point that the British decided to create a network of treaties in order to outlaw the slave trade. There were other possible paths to their goal. For example, they secured a broad moral condemnationof the trade at the Congress of Vienna, and several abolitionists wanted to go furtherby unilaterallydeclaring slavers to be pirates and therefore subject to an acknowledged universaljurisdiction. But this route was not an easy one. When the case of a captured French slaver, Le Louis, came up before the British Courts of Admiralty in 1817, Lord Stowell firmly stated, "Be the malignity of the practice what it may, it is not that of Piracy, in legal consideration," and he insisted that any attemptat suppression must look to the legal standardof morality;and upon a question of this nature, that standardmust be found in the Law of Nations, as fixed and evidenced by general and ancient and admitted practice, by Treaties, and by the general tenour [sic] of the Laws and Ordinancesand the formal transactionsof civilized states.12 As John Dodson, the British government'sLaw Officer, later reported, "the Right to search and detain ... upon the High Seas in time of Peace must be acquiredby 13 Treaty." The fact that Stowell and Dodson took for grantedthe importanceof treaties as setting the "legal standardof morality" is indicative of a significant change that had worked its way throughinternationallegal thought during the eighteenth cenjurists, such as Franciscode Vitoria tury.Leadingsixteenth-and seventeenth-century or Hugo Grotius, had typically imagined a global legal order governed by a single, universal code of naturallaw, within which specific groups of peoples might develop their own volitional laws for themselves, but which was nevertheless held together by the all-embracingunity of the law of nature,whether understood
12. 15 December 1817, in British Foreign and State Papers (BFSP), Vol. 8, 287-88. An attempt(in 1820) by the U.S. Congress to declare slave-tradingpiraticalfounderedin 1825 when the U.S. Supreme Court passed a similarjudgment on a capturedslave ship, The Antelope: Grewe 2000, 563. 13. John Dodson to Viscount Palmerston,30 January1836, United Kingdom's Foreign Office (FO) Papers, 83/2347.
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theologically, rationally,or throughquasi-empiricistenquiriesinto "humannature" or the "state of nature."14 Treaties were, of course, importantparts of the legal orderin the sense that they imposed specific obligations on their signatories," but juristic and philosophical writings on the law of nations seldom mentioned the currentpractice of states as a significant source of legal rules, and were as likely to invoke ancient Roman practices as those of their own time.16The acid test for determining internationallegitimacy was the law of nature, buttressed on occasion by evidence drawn from ancient or early Christianpractice. To say that early modernjurists conceived of the code of naturallaw in universal terms is not to say that that code operated indiscriminatelyor without advanas tage to Europeans.For a start, naturallawyers often used the term "barbarians" a pejorative description of certain peoples, such as the indigenous inhabitantsof the Americas. "Barbarians" were often excluded from the scope of natural law and dismissed as so wild or savage that they were more beasts than men; some thinkers even revived the Aristotelian concept of the "naturalslave," which gave barbariansa place in the natural order of things but relegated them within that context to a subordinate,and in some respects subhuman,position.17Less negatively, barbarianswere often seen as peoples living in a condition of primitive simplicity, but who still possessed the moral and rationalfaculties that made their participationin the naturallaw possible: Vitoriaand Grotiusboth took this view.18 On this account, barbarianshad more or less the same rights and duties under naturallaw as Christians,althoughChristianspossessed additionalrights and duties in their relations with one another,on the basis of their sharedcommitmentto the revealed truths of scripture.Despite conferring naturalrights on barbarians,this still allowed considerable space for Europeanexpansion and dominance. A fairly standard,albeit controversial, late medieval doctrine held that the Pope was the judge of barbarianswith respect to their breaches of naturallaw, which inevitably gave Christiansa special role in the arbitrationand enforcement of the code, and thus a superordinateposition in internationalrelations with non-Christians.19 In the early modern period, jurists with close connections to powers with imperial ambitions-Spain in Vitoria'scase, the Netherlandsfor Grotius-had a suspicious talent for legitimizing their rulers' activities in terms of naturallaw: the natural rights to preach the gospel, to trade, or to occupy vacant lands, for example, were particularlyuseful tools with which to chisel open reluctant non-European
societies.20
14. On the changing characterof naturallaw thinking, see Alexandrowicz 1967; and Tuck 1987. I have discussed these intellectual developments at greaterlength in Keene 2002 and 2005. 15. See Meron 1995; and Lesaffer 2004. 16. For example, Vitoria 1991, 289. 17. See Muldoon 1979, 19; and Pagden 1990, 20-23. 18. See Vitoria 1991, 250; and Grotius 1995, 222. 19. Muldoon 1979. 20. See Green and Dickason 1989; Tuck 1999; and Keene 2002.
Thanksto jurists such as CorneliusBynkershoek,JohannJacob Moser, and, perhaps most famously, Georg Friedrich von Martens, a different doctrine gained ground duringthe eighteenth century that made treaties the principal source of the law of nations, and made the history of treaties the crucial authorityfor determinAs ing legal obligations.21 treaty-makinggrew in importance,so new ways of conducting relationsbetween Europeansand non-Europeansemerged, including novel justifications for colonial expansion. For some time, however, these typically did not involve the denial of the internationalpersonalityof non-Europeanpeoples so that their rights in the law of nations would simply disappear.Nor, moreover, did naturallaw immediately vanish: for a considerable period during the seventeenth and eighteenthcenturies,the classical naturalistand slowly evolving positivist doctrines existed side by side. Until at least the late eighteenth century, Europeans made numerousagreementswith foreign rulers on the grounds that the latter were competent contracting partners, a position that was entirely consistent with, and quite possibly derived from, the natural law view of the innate "rationalityand sagacity" of the indigenous people, both in the East and the West.22 Again, what might appearto be an inclusive or egalitarianposition could conceal a more sinister colonial purpose:by accepting that non-Europeanrulers originally possessed the same naturalrights as Europeans,and by admittingthe former's competence to make treaties, it became possible for those naturalrights-to ownership of territoryor control of productionand trade,for example-to be ceded to This Europeanpowers throughregulartreaties,whethercheaply or dearlybought.23 strategy was attractivebecause it provided a relatively strong legal claim against attemptsby otherEuropeansto challenge the treaty-making power's colonial sphere of influence. Positivism and naturalism, in other words, were not entirely contradictory doctrines in terms of their impact on the internationalpolitics of the world. On the contrary,the positive law of nations based on treatyextra-European was a crucial channel through which the naturalrights of non-European making rulersand peoples were transferred Europeans,considerablyassisting the expanto sion of European power and influence in Asia, Africa, and the Americas.24
21. The best account is probably still Nussbaum 1947, 135, 142-48, 163-77; see also Kennedy 1986; and Koskenniemi 1989. On von Martens'srole, see Alexandrowicz 1967, 158-62 and 1974-75; and Jones 1982, 7. 22. Grotius 1995, 222. 23. Courts sometimes retrospectivelyinterpretedsuch agreements (which often imposed frustrating limits on subsequent colonial expansion) as belonging to a special class of internationalinstrument, with less weight than a treaty proper,although such argumentswere not always successful: Mainville 2001, 34-60. 24. Alexandrowicz 1967 is a seminal analysis of the classification of East Asian rulers' sovereignty along these lines. Jones 1982 describes a similar practice in British treaties with Native Americans, at least duringthe period from 1763 to 1768, and possibly even until 1775; but especially duringits latter years she explains how this treaty system was underminedby private acquisitions of territory,symptomatic of a loss of governmentalcontrol over settler-NativeAmericanrelations. (On the specific question of British views on the internationalpersonality of indigenous rulers in North America during the mideighteenthcentury,see Jones 1982, 19-20, which largely confirmsAlexandrowicz's analysis of the
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Nevertheless, there was nothing within positivist doctrines themselves that logically entailed discriminationagainst non-Europeans.By the late eighteenth century there was a large body of treaties between Europeansfrom which positivists could develop their ideas of the basic rules of the law of nations, but there was also a sizable corpus of Europeanagreementswith non-Europeans.It would have been possible to view all treaties as the basis for internationallaw ratherthan, as eventually became the practice in most compendia, merely those treaties made between Europeanstates. To understandwhy this did not happen, one needs to appreciateanother intellectual developmentthatwas roughly simultaneous,perhapsnot coincidentally,with the emergence of positivist jurisprudence:the rise of the modernidea of "civilizahave a much longer history, tion." Although the terms "civility" and "barbarism" traceable to ancient sources, "civilization"itself is a word of more recent readily provenance:Norbert Elias finds the first literaryevidence for the French term civilisation as late as the 1760s.25In Englandone can find references to the "Civiliz'd but part of Mankind"in the seventeenth century,26 even by the eighteenth century the word "civilization"was still not universally accepted as part of the English language: Samuel Johnson refused to include it in his dictionary;he gave a reference At for "civility" instead.27 roughly the same time that internationallegal discourse was beginning to move away from the discourse of "natural rights,"in other words, were also beginning to think of themselves and their societies in a novel Europeans way, using the term "civilization"to describe what they saw as their unique political, cultural, social, economic, and technological achievements. One of the most importantfeatures of how this new idea was used was that, although civilization implied the control of nature, Europeans seldom contrasted this social condition with the concept of a "state of nature,"as had been the case in earlier political and legal theories built aroundthe distinction between the state of nature and "civil society." Although some philosophes did use the contrast
position of East Asian rulers; Grovogui 1996, 46-47, is critical of Alexandrowicz on this point but does not offer much hard evidence.) The Barbary States had at least some form of internationalpersonality in the sense of treaty-makingcompetence, but this was always somewhat marginaland became African rulers noticeably more precariousin the early nineteenthcentury:M6ssner 1972. Sub-Saharan may always have been placed in a more subordinateposition, but treaty-makingwith them was rather haphazard(prior to the antislave trade treaties) and the evidence is so fragmentarythat it is hard to come to a definite conclusion on this point. 25. Elias 1978, 38. Translationsof legal texts sometimes conceal the novelty of "civilized" or "civilization" as terms in common usage: for example, the eighteenth-centuryinternationallawyer Christian Wolff made a distinction between peoples who were "doctae et cultae" as opposed to those who et were "barbarae incultae" (Wolff 1972, 131). It is by no means wrong to translatethe former term as "civilized," as is sometimes done, but "learnedand cultivated"is a more literal, if more cumbersome, translation,and one that does not run such a risk of importing additional meanings that Wolff neither intended nor, perhaps, could have imagined. 26. Locke 1967, 289. 27. See Robinson 1929. The dictionary was first published in 1755. "Civilisation"first appearedin the French Academy's dictionary in 1798 (Zeldin 1977, 6). According to Grewe 2000, 445, the first appearanceof the word in internationallaw was at the Congress of Vienna.
between civilization and natureto extol the naturalvirtues of the "noble savage," a more common line of argumentwas to make a contrast between "civilization" The lasting importance of this move was that it permitted the and "barbarism." more elaborate sociological cataloguing of multiple levels of human advancement, a virtual league table within which different societies could be ranked in terms of their development, usually with Europeans at the top. The belief thus arose that the various forms of human society could be studied geographically and As anthropologically,ratherthan historically or hypothetically.28 Edmund Burke it, "now the great map of mankindis unrolled at once; and there is famously put no state or gradationof barbarism,and no mode of refinementwhich we have not at the same instant under view."29 This was crucial to the way in which positivist jurisprudenceeventually developed.30Ratherthan replacing the old idea of a universal code of naturallaw with a new universal positive law of nations, positivist jurists tended to concentrate only on treaties made among European states themselves, which gradually came to be known as the "family of civilized nations," and they virtually ignored treaties between Europeanand non-Europeanrulers. Some of the positivists, including von Martens himself, later came to regard this as an error and produced additionalcompendia including a much wider selection of agreements,but by then much of the damage had been done.31The Eurocentricfocus of the early positivlacked ist treaty collections coincided with the growing belief that "barbarians" to make law, or at least to make acceptable the competence of "civilized" states laws, and each discriminatorytendency reinforced the other. This new way of thinking about the positive law of treaties and the unique role of the "family of civilized nations"in generatinginternationallegal rules had only begun to come together toward the end of the eighteenth century;it was gradually making itself felt on internationallegal practice in the first half of the nineteenth century.As it did so, it raised difficult questions about how to put the theory into rulers, especially their treaty-making practice, and the exact status of "barbarous" was a source of controversy and confusion throughoutthis period. competence,
British Treaty-Making Against the Slave Trade

The antislave trade treaty system is best analyzed according to a tripartitedivision. First, there were treaties with other European and American powers; these
28. Embryonic forms of this position may be found in Grotius's or Locke's view of America as a living example of the state of nature,but it really became popularin the eighteenth century.Ferguson 1995 is a classic statementof this position; and Berry 1997 is a good commentary. 29. Cited in Marshall and Williams 1982, 93. 30. On the importanceof the colonial encounterto the development of legal doctrine in this period, see Anghie 1999. 31. Alexandrowicz 1974-75.
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were furtherdivided into three subgroups,as will be explained next. Second, there were treaties with Muslim rulers, whom the British initially treated as equal partners, but whose status steadily declined during the first half of the nineteenthcentury. Finally, there were treaties with African "Native Chiefs," whom the British and whose "engagements"were therefore government regarded as "barbarous," somewhat questionableas elements of the law of nations, althougheven here there were elements of parity in some of the very early, often less carefully drafted, treaties.
Treatieswith European and American Powers Beyond the broad statementof principle contained in the Vienna Declaration and elsewhere, Britain had three distinct kinds of treaty relationship with European and American powers. One group of treaties established a mutual right of search and a set of mixed courts of jurisdiction; anothergroup also established a mutual right of search but arrangedfor the arbitrationof cases to be conducted under nationalcourts; and finally,two treaties-with the United States and with Francedid not provide for a mutual right of search but created a mutual obligation to maintainnaval squadronsoff the coast of Africa in order to prevent slaving. The first treaties exclusively devoted to the delegitimization and suppressionof the slave trade that Britain made were with Portugal and Spain in 1817; a virtuFrom the point ally identical treaty was signed with the Netherlandsa year later.32 of view of the law of nations, they possessed two outstandingfeatures:first, they established a reciprocal right of visitation, search, and detention for any vessels suspectedof carryingon the slave trade;second, they establishedthat vessels seized as slave ships would be examined at Mixed Commissions adjudicatedby representatives of the two treaty parties working in unison. There were originally four Commissions: at the British colony of Sierra Leone, Havana (for Spain), Rio de Janeiro(for Portugal), and Surinam(for the Netherlands).Since each Commission containedthe same balanceof two representatives from each of the treatypowers-a and a commissioner of arbitration-captured slave ships were commissary judge to be taken to the nearest Commission, ratherthan to the one in the colony of the nation under whose flag the ship was sailing. The system was not an outrightfailure, but from the British point of view it did not work perfectly. They were constantlyfrustrated theirtreatypartners'lack of zeal: the Portuguesecommissioners by were slow to arrive at Sierra Leone, delaying business considerably; there were prolonged quarrelsabout points of practice;and they sometimes doubtedthe commitment of foreign commissioners to the antislavery cause.
32. For the treaties, see Hertslet 1840, Vol. 1, 381-91 (the Netherlands),Vol. 2, 83-93 (Portugal), and Vol. 2, 273-309 (Spain); for a contemporaryoverview of the early treaties and the system they were intended to create, see Viscount Castlereaghto His Majesty's Commissioners, 20 February1819, BFSP, Vol. 8, 25-28.
BritishTreaty-Making Againstthe SlaveTrade 321
The standardformula in these treaties was that the contracting parties "mutually consent that the ships of their Royal Navies ... may visit such merchantvessels of the two nations, as may be suspected, upon reasonable grounds, of having slaves on board for an illicit traffic; and in the event only of their finding such slaves on board, may detain and bring away such vessels." 33There were practical problems with this clause, which were dealt with by the subsequent Equipment Act and a new round of treaty-making,but the most importantpoint to note here is the care that was taken to insist on the reciprocal nature of this provision. In defining its scope, the treaties described it as "the reciprocal right of visit and detention"and later reiteratedthat, as the right of search was "entirelyreciprocal, the two ContractingParties engage mutually to make good any losses which their 34 respective subjects may incur unjustly." The wording was intended to stress the of the two parties to the treaty,and to ensure, as much as possible, that it equality did not matterwhich navy's warships did the actual capturingof slave vessels (in practice, nearly always the British); the two powers would have an equal involvement in the arbitrationof any disputes and would be mutually responsible for any damages to the propertyof each other's nationals. The promise of reciprocity,indeed, was one of the key elements of British treatymaking practice in its dealings with Europeanand American powers. The British, along with everyone else, recognized that equality was a legal principle rather than a factual condition, and that their naval supremacy represented a potential threatto both the free commerce and the sovereign pride of the nations with which they were dealing.35At the same time as this early treaty regime with Portugal, Spain, and the Netherlandswas being put into place, for example, the British proposed a similar treaty to France, and the Foreign Office was especially anxious to reassurethem that the suggested right of search "is completely reciprocalbetween both parties."36 The French did not entirely believe this, and their refusal to sign a treaty at this point was largely because they feared "thatthe offer of reciprocity would prove illusory."37There was considerablesuspicion in Frenchdomestic politics about the danger that the British attempt to gain a right to search vessels suspected of slaving was part of a push for maritime domination, and the French were anxious not to be too permissive.38 Other states had similar concerns. The new republics in Latin America, whose facilitatedby theirinitial hostility toward recognitionby Britainwas unquestionably commitments to a strong naval were anxious about making "permanent slavery,39
33. 34. 35. 36. 37. 38. 39.
Hertslet 1840, Vol. 1, 385. Ibid., Vol. 1, 385, 387; see also Vol. 2, 87 and 281. King 1944, 411. Viscount Castlereaghto Charles Stuart, 21 February 1818, BFSP, Vol. 8, 299. Charles Stuart to Viscount Castlereagh,2 March 1818, BFSP, Vol. 8, 306. Kielstra 2000 is an excellent study of Franco-Britishrelations here. King 1944, 388-93; see also Bethell 1970.
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power, who might harmher commerce and outrage her sovereignty.""4 Nevertheless, through a mixture of bribery and pressure, the British were able to commit the new Latin American republics to treaties that mirroredthose signed with their erstwhile imperial powers, the only substantial difference being that in several cases-Argentina, Uruguay, Bolivia, and Ecuador-the treaties did not specify a particularzone within which the right of visitation might operate, representing,as Wilhelm Grewe puts it, "an initial step towards an internationalpolice authority of the British fleet upon all of the world's oceans."41 The election of a liberal governmentin France in the early 1830s created a further opportunityfor British treaty-makingand provided what proved to be a brief opportunityto establish a new kind of treaty regime. This was based on an 1831 Convention according to which French and British warships had a "mutualright of search"with respect to vessels flying each other's flag.42The French still drew the line at allowing mixed commissions to exercise jurisdiction, which they kept fixed on nationalcourts.This conventionmet with a strongnegative reactionwithin France, and the government was later forced to withdraw from the agreement. It provided, however, a convenient form for British treaty-makingwith other powers. Thus, whereas the Latin American republics generally signed up to treaties modeled on the early agreements with Spain and Portugal, most other countries acceded to the Franco-Britishconvention of 1831. Britain was able to secure antislaving agreementswith a clutch of lesser maritimepowers in this way: Denmark, Sardinia, the Hanseatic towns, Tuscany, Sicily, and Haiti.43 In short, then, with the exceptions of the United States and France-both of which refused to allow a mutual right of search, but which eventually accepted a mutualobligation to maintainantislavingsquadronsoff the WestAfrican coast-by the middle of the nineteenthcentury treaties were in place with virtually all European and American powers under which British warships might visit, search, and detain vessels on the high seas suspected of slaving. This treaty system embraced countriesas diverse as Russia, Spain,the Hanseatictowns, Brazil, and Haiti. Despite this immensely wide range, however, there were relatively few variations in the language and norms contained in the treaties. With the exception once again of France and the United States, the only really significantdifference was in the arbitration process, depending on whether cases were to be tried at mixed commissions or national courts. Especially in view of the real disparities in naval power, diplomats took pains to ensure that all the treaties stressed the equal status of the contracting parties and highlighted the reciprocal nature-in theory at least-of the right of search. The practical fact that, say, Sardinianwarships were unlikely to appear in the seas off the western coast of Africa and begin inspecting British
40. 41. 42. 43.
King 1944, 405. Grewe 2000, 561. Hertslet 1840, Vol. 4, 112. Ibid., Vols. 5 and 6.
merchantvessels was not permittedto interfere with the normative principle that they had the right to do so if they desired. In this respect, every member of the "family of the civilized nations" was identical; and it was in this crucial respect that they differed from the unfortunatepeoples and rulers who found themselves outside that family. Treaties with Muslim Rulers Although the Vienna Declaration of 1815 and the Portuguese and Spanish treaties of 1817 markedthe real beginning of the British effort to abolish slave-tradingby treaty,some of the earliest treatiescontainingantislavingprovisions were not made with Europeanor American powers, but with Muslim rulers on the northerncoast of Africa:the "Barbary States."Before the nineteenthcentury,these were not really antislave trade treaties as such, because they were usually concerned with more general issues about peaceful relations, freedom of trade, and related privileges; a typical sentiment was that the subjects of each state "shall treat one another with all possible respect and friendship."44Even as early as the seventeenth century, however, some of these treaties included provisions dealing with slaves. The 1662 treaty with Tunis, for example, stated that "in case any slave in the kingdom of Tunis, of any nation whatsoever, shall make his escape and get on board any British ship ... the Consul shall not be liable to pay his ransom."'45 a treaty of In 1751 this was altered to allow that "if any slave of Tunis should make his escape from thence, and get on board an English man of war, the said slave shall be free, and neither the English Consul, nor any of his nation, shall in any manner be questioned about the same."46The same treaty also made provisions for English subjects captured by Tunisian warships, mandating that they "shall be immediately released, with all their goods and merchandise,"and adding that this particular article was "to be observed reciprocally on the part of the English."47 Other "BarbaryStates" had made similar agreementsrespecting British subjects, one of the first being the 1682 treaty with Algiers.48 The year 1822 saw the first specifically antislave trade treaty with a Muslim ruler, made at Zanzibarwith the Imam of Muscat.49Not unlike many of the treaties with Europeanand American powers, it requiredthe Imam "to order the seizure of all such vessels, attemptingthe foreign slave traffic,and to seize and punish the captain and crew as Pirates,"and also to authorizeBritish cruisers to seize all Arab vessels caught with slaves on board, "if bound to any port outside His
44. This formula was repeated in numeroustreaties, such as the 1662, 1675, and 1716 treaties with Tripoli; or the 1682, 1686, 1703, 1716, 1729, and 1800 treaties with Algiers. 45. BFSP, Vol. 1, 734; see also the 1662 treaty with Tripoli, BFSP, Vol. 1, 712. 46. Ibid., 741. 47. Ibid., 743. 48. Ibid., 357. 49. Hertslet 1840, Vol. 3, 265-67.
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Highness's dominions."50 Logically, this must have included a general right of search for British warshipswith respect to Arab vessels, but that was not formally included until a set of additionalarticles were agreed in 1839.51The right of search was reaffirmedin an 1845 agreement, in which the Imam explicitly granted "to the ships of Her Majesty's Navy, as well as to those of the East India Company, permission to seize and confiscate any vessels the property of his Highness or of His subjects carryingon the slave trade, excepting only such as are engaged in the transportof slaves from one part to another of his own dominions in Africa."52 Around the same time, antislaving agreements were also secured with the Sultan of Johanna,which authorized"Britishcruizers to seize all vessels belonging to his subjects, that may be found with slaves or with slave implements on board,"53 and with several Arab chiefs in the Persian Gulf, again providing for a British right of search and "confiscation."54By 1850, the British managed to obtain a further agreement with the Imam of Muscat allowing them actually to enter his territoryfor the purpose of destroying slave-tradingfacilities, something they had not achieved in agreementswith Europeanor American states.55 The broad thrust of these treaties was similar to that of the treaties made with Europeanand American powers: the British wanted to gain a right to search suspect vessels on the high seas and so to use their superiornaval power to prevent the trade in slaves. However, at the same time, the antislave trade treaties with rulers such as the Imam of Muscat reveal importantdifferences from the various classes of conventions made with European rulers. Arrangementsgoverning the arbitrationof capturedvessels, for example, were quite different.The earlier treaties relied on Muslim rulers to enforce antislaving laws and to punish their own subjects themselves, but later ones gave the British a much more extensive jurisdictionalrole. Accordingto the 1844 treatywith the Sultanof Johanna,for instance, all ships seized by the British were "to be sent to the nearest or most convenient BritishVice-AdmiraltyCourtfor adjudication." Even more permissively,as men56 tioned above, the engagements with the Arab chiefs gave the British a right to "confiscate"capturedvessels, making few if any provisions for the chiefs themselves to exercise jurisdiction. In keeping with this gradualextension of British jurisdiction, and the resulting contractionof the jurisdiction of Muslim rulers, the single most importantdistinguishing feature of these antislave trade treaties, in comparison with those agreed with Europeanand American powers, was the gradualdisappearanceof the principles of reciprocity and equal respect from the former.In the earlier treaties with
50. 51. 52. 53. 54. 55. 56.
Ibid., 266-67. Ibid., Vol. 6, 578. Ibid., Vol. 7, 819. Ibid., Vol. 8, 733. Ibid., 794-802. Ibid., Vol. 9, 557. Ibid., Vol. 8, 733.
Muslim rulers, the language was fairly generous and stressed the equality of the contracting parties. This has already been noted as a feature of the seventeenthand eighteenth-centurycommercial treaties with the Barbary States, but it also applies to early nineteenth-centurytreaties with rulers in easternAfrica. An 1817 commercial treaty with Madagascar, for instance, begins with an assertion of "mutualconfidence, friendship and brotherhood," while even as late as 1839 a 57 commercial treaty with the Imam of Muscat includes importantprovisions based on an equality of status: Article 3, for example, states that "The two High ContractingParties acknowledgereciprocallyto each otherthe right of appointingConsuls to reside in each other's Dominions," and Article 16 affirms that "nothingin this Convention is intended in any way to interfere with, or rescind, any of the rights or privileges now enjoyed by the subjects of his Highness the Sultan of Muscat in respect to commerce and navigation."58This commercial generosity accompanied the grant of a right of search to the British in a simultaneous antislavery treaty. Indeed, the Arab text of the earlier 1822 treaty with Muscat had been significantly more protective of the rights of the Imam than was the Britishlanguage version, suggesting that in the earlier period the British were still hesitant about encroaching too obviously on the Imam's sovereignty by claiming a comprehensive right of search or detention of Arab slaving vessels.59 The Imam of Muscat, in other words, appearedin both the 1822 and 1839 treaties as an equal contractingpartnerwith the British, with few obvious differences from the rights enjoyed by Europeanor American states; subsequent agreements were to erode that status dramatically.The 1845 agreement,imposed on the Imam to address British frustrationat his neglect of his treaty obligations to put down the trade, begins with a much less egalitarian preamble. Treaties with European and American powers typically began by asserting the parties' equal desire to put down the trade,but in the 1845 agreementwith Muscat only the British sovereign is portrayedas "earnestlydesirousthatthe export of slaves from the Africandominions of his Highness the Sultan of Muscat should cease," while the Imam is said to be acting "in deference to the wishes of Her Majesty and of the British nation, The 1850 agreement, which and in furtherance of the dictates of humanity."'60 conferred a right of direct intervention unlike anything provided for in treaties with Europeanor Americanpowers, tells a yet more pathetic story, beginning with the Imam's desperatepledge that "we and all belonging to us, even our countries,
57. Ibid., Vol. 1, 354. 58. Ibid., Vol. 5, 612, 616-17. 59. The British version permittedtheir warships to seize all Arab vessels carryingslaves to any port outside the Imam's territory;the Arab version granteda right for "the seizure of all vessels laden with slaves bound for Christiancountries." (Hertslet 1840, Vol. 3, 267.) See also FO 96/29/9 for a copy with translationof the 10 December 1843 treaty with the Sultan of Johanna:according to the English version the Sultan would "authorizeBritish Cruizersto seize all vessels belonging to his subjects that may be found with slaves," which in the Arab version became the much more modest permission to carry out "an inspection for the purpose of discovering dealing in slaves." 60. Hertslet 1840, Vol. 7, 818-19.
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are at the disposal of Her Majesty."'61 This signifies the almost complete decline of the Imam's position, within barely two decades, from a sovereign ruler with his own rights in the law of nations and a jealously guardedjurisdiction, to an inferior entity who acts in deference to the wishes of another state, and is even "at the disposal"of the British.No Europeanor Americanpower would have been expected to make such an abjectstatementof self-abasement,not even the Portuguese,whose failure to fulfill their obligations caused the British so much exasperation as to lead to a virtual declarationof war.
Treaties with African "Native Chiefs" Although the effort to cut off the African slave tradeat its source only really began to gather steam in the 1840s, the British had by then been making treaties of one sort or anotherwith African rulers for some time. These treaties were not directed against slaving as such. They were generally concerned with the cession of territory, the guaranteeof commercial privileges, and the maintenanceof friendly relations between "NativeChiefs"and the Britishcolonies at SierraLeone, the Gambia, and the Gold Coast. Although rare, there were one or two mentions of the principle of reciprocityin these early treaties.An 1823 treaty with the King of Mapoota, for example, opened with a declarationof "perfectfriendship... on termsof reciprocal benefit,"and made provisionthatneitherpartywould interferewith the other's jurisdiction over its own subjects; this generous treatment,however, must be set against the fact that under the terms of the treaty the King of Mapoota placed his Another treaty made in 1823 with King Collie people under British protection.62 of Caliba, this time ceding some territoryto the British, stressed "the great reciprocal benefits which will result from a British settlement being established in our 63 neighbourhood." Having decided to attackthe export trade in slaves, the British did not immediately embark on a systematic program of treaty-makingwith African rulers, but ratherbegan in an ad hoc manner,with treaties made by individual naval captains or colonial officials along the Africancoast, often with little directcontrolor authority from the Foreign Office and sometimes repudiatedafter the event. Towardthe end of the 1830s, however, the Foreign Office began to take more of an interest in treaty-makingwith African rulers. In 1839 they sent out a plea for copies of any treatiesmade with African chiefs duringthe previous thirty years held by the Colonial Office and the Admiralty.64 This new concern was inspired by the decision to embarkan expedition up the Niger River, with the supportof leading abolitionists such as Sir Thomas Fowell Buxton, chairmanof the "AfricanCivilization Society."
61. 62. 63. 64.
Ibid., Vol. 9, 557. 23 August 1823, FO 97/432. 14 April 1823, CO 879/35. 18 November and 25 November 1839, FO 84/300.
For the purposes of this expedition, the British government decided that a single form of treaty was necessary, and James Bandinel (the leading official within the Slave TradeDepartmentat the Foreign Office) was asked to put a standardagreement together. Bandinel'soriginaldrafttreatywas modeled on antislavingagreementswith Muslim rulers such as the Sultan of Muscat.65The preamble began with a statement that both rulers were "desirous to record in a formal Treaty their resolution to have a good understandingand friendship with each other, and to put down and extirpate the foreign traffic in slaves, and instead thereof to set up and assist a peaceful and innocent commercial intercourse,beneficial to His Highness [that is, the African ruler] and useful to the subjects of both Sovereigns." Moreover, the treaty gave the African ruler a direct role in its enforcement. Both British and African ships were authorized "to seize and detain all ships ... belonging to the subjects of his Highness wherever found carrying on the traffic in slaves," and this right was also extended to the seizure of the ships "of any nation whatever, found carrying on the Slave Trade in waters belonging to His Highness." Having in been seized, cases were eitherto be adjudicated the nearestBritishcolony, accordto British law, or "any other place in which His Highness shall appoint a goving ernor."According to Bandinel's draft, in other words, not only might a European vessel be seized by an African ruler,but conceivably the African ruler's representatives might exercise jurisdictionover capturedEuropeanslavers. Subsequentarticles offered protectionto the African ruler in case of aggression against him from other tribes or slavers, allowed for an exchange of consuls, and established commercial relations on the basis of the "most favored nation"principle. The Queen's Advocate approvedBandinel's draft in terms of its validity within the law of nations, but Russell and especially Palmerstonhad problems with the way in which it was framed. They suggested that the elaboratetreaty preparedby Bandinel be reduced "into the form of a simple agreement ... and strippedtherefore of all diplomaticlanguageand expressionswhich might not be well-understood by the barbarousand semi-barbaroustribes with which the Expedition will have to negotiate."66This was in response to an express stipulationby Palmerston,who baulked even at labeling the document a "treaty."As a Colonial Office minute explained, Palmerston desired that the compacts to be made with the African chiefs should be described as "arrangementsor agreements," or by some other word which would exclude them from the class of Diplomatic Conventions. The distinction is not verbal or trivial. It means to reserve to the Secretary of State for Foreign Affairs his own exclusive power of negotiating Treaties, and it is
65. CO 2/21, 533-37. All further references in the paragraphare to this copy of the draft treaty. Newbury 1965, 150-53, gives a final version of the draft agreement, but only after the Foreign and Colonial Office amendmentsdescribed below had been made. 66. James Stephen to Bandinel, 26 December 1839, FO 84/300.
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also meant to mark the distinction between the agreements with barbarous Chiefs and the internationalcompacts of Civilized States.67 In part, then, Palmerston's concern was a constitutional one: since most of the "agreements"with African rulers were to be negotiated by agents reportingto the Admiralty or the Colonial Office, by refusing to label them "treaties,"he could uphold the principle that treaty-makingwas the exclusive preserve of the Foreign Office. It is clear, however, that Palmerston'sview was also determinedby a sense of the boundariesof civilization, and by the belief that internationalrelations with "barbarous Chiefs" ought to proceed according to a different logic of appropriateness from that which obtained within the "family of civilized nations." Bandinel was therefore asked to reduce his original draft to its essentials and simplify its language, in orderto take account of the parties at whom it was aimed. There were some interestingby-productsfrom this decision. One result, for example, was that stipulationsregardingproperpayment of debts were made less stringent because, as Bandinel observed, "on that subject the natives ... are likely to insist on Reciprocity; and it would not do to make the condition applicable to them more stringentthan could be enforced on British subjects";he added that he had also proposed "precautionary means for preventing the natives from seizing 68 and detaining British subjects under any pretence whatever." The Foreign Office was almost satisfied, but not completely so. In the final form of the agreementand its accompanyinginstructions,they still insisted on some changes of wording,again with the purpose of strippingaway the appearancethat a formal diplomatic interaction was taking place. Thus, in the instructions,they omitted references to conducting "negotiations"with the African rulers. Within the agreement itself, they changed the word "Article"to "Stipulation,""Term,"or "Condition";"contracting parties"to "respectiveparties";and "ratify"to "sanction."'69 Although Palmerston'sview carried the day in terms of the form of the agreement that was sent out with the Niger expedition, his position was not entirely undisputed within the Foreign and Colonial Offices. Although he had probably not reflected on the subject in great detail, Bandinel's original draft shows that he lacked an awareness of the need to make the distinction between civilized and barbaricpeoples in so starka way as Palmerstondemanded.Some observers,moreover, maintainedthat the distinction itself was faulty, and that "the doctrine of the incapacity of the negro race is literally exploded."70 This was the view of Sir John Jeremie, Governor of Sierra Leone, who, while accepting the form of the proposed agreementwith the native chiefs, recommendedthat it was both morally
67. Colonial Office Minute by James Stephen, 6 September 1841, enclosed in Gov. Huntley to Lord John Russell, 24 April 1841, CO 87/25. 68. Bandinel to Stephen, 10 April 1840, CO 2/21. 69. Bandinel to Stephen, 4 January 1841; and see also the amended copy of the draft agreement, both in CO 2/21. 70. Report from Sir John Jeremie to Lord John Russell, 4 March 1841, CO 267/163.
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right and good policy "to treat these people [that is, the 'Native Chiefs'] as our equals, adopting the sound and essentially just rules of internationallaw and disfairness,prudence,puncdisinterestedness, playing towardsthem equal impartiality, tuality and good faith."" Nevertheless, this more positive attitude can hardly be described as commonplace. Other officials, such as the parliamentary undersecretary of the Colonial Office, felt that "it is bad policy to indulge these petty Chiefs of a few villages with these high titles."72 Buxton himself sang the praises of the inland chiefs with whom the Niger expedition was to deal, but only by contrasting them with the coastal chiefs, who were, he said, a mere "rabble of petty chiefs, the most imbecile, ignorant and rude."73 The Foreign Office's painstaking attempt to purge the agreement used on the Niger expedition of anythingthat might be considereddiplomatic language reveals the importance that the British attached to the vocabulary used to describe their treaty partners.In addition, their choice of words here clearly shows that the African chiefs were being placed into a differentcategory from Europeanor American states, and were also being treated as distinct from the Muslim rulers on whom Bandinel's original model treaty was based. The development of these agreements reveals a decline in the status of African chiefs yet more precipitous than that suffered by the Muslim sultans of easternAfrica. In the early 1820s, although the evidence is somewhat fragmentary,British treaties with African rulers appearto have employed language not dissimilar to that used in the earlier agreementswith the BarbaryStates, prominentlyincluding terms of friendship and reciprocitythat British treatyare unexceptionalin the broadercontext of early-nineteenth-century in general. Within two decades, however, the British were denying the making competence of African rulers even to make a treaty as understoodin the law of nations.
Explaining the Structure of the Antislave Trade Treaty System

How might differenttheoreticalapproaches explain these variationsin BritishtreatyA good startingpoint is to acknowledge the importanceof power politics making? to a sort of "hierarchyof prestige." Notwithstandingthe general presumptionof reciprocity within the "family of civilized nations," there were significant differences in the treaties that the British made with France and the United States, as opposed to how other states were treated. With respect to the latter, the British were quite preparedto use force to compel submission to treaties on the terms that they favored:the pressureon Portugalto accept the incorporationof the equipment
71. Jeremie to Russell, 4 March 1841, CO 267/163. 72. Minute by James Stephen, 27 October 1841, CO 87/27. 73. Sir Thomas Fowell Buxton to the Marquisof Normanby,20 April 1839, CO 2/21.
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clauses into a new round of treaties is a good example of the importanceof force to the establishmentof the treatyregime, and the contempt with which the British regardedPortuguese objections about the inviolability of sovereignty is clear evidence of the low prestige, in a realist sense, of that state. France and the United States were a very different matter. Here, the British were preparedto accept a much looser treaty regime. It is hard to see why the British did this other than out of respect for the greaterpower and prestige of these states, and their willingness to exert that power to prevent the British from acquiringmaritimedomination. Power politics might also explain the relatively harshtreatmentof "barbarians." One characteristicshared by all "barbarousrulers" was "pettiness":they lacked the power with which to offer any serious challenge to the British government. with which most This, indeed, was an integralpart of the definitionof "barbarism" Europeansoperated in the nineteenth century: uncivilized peoples were all "poor and feeble," John StuartMill argued,because of their "incapacityof cooperation" in pursuit of large-scale social, economic, and military projects.74Obviously, a major reason why states such as Muscat were relegated to this lowly condition was simply that they lacked the power to resist the treatment.The problem here, though, is that barbarousrulers were not the only weak states with which the British had to deal. Treatypartnerssuch as the Hansa Towns, Haiti, and many of the new republics in Latin America, were also weak states that could not have hoped to exert effective military power against the British; not to mention Portugal and Brazil, where direct force was actually used to compel obedience. But all of these were consistently treated with a dignity and respect for status that was denied to Weak "civilized" states signed treaties that African counterparts. their "barbarous" carefully protected their status as sovereign equals of the British; weak "barbarians" signed agreements that called their very internationalpersonality into question. The difference does not stem from material considerations: it shows that, while "prestige"was not unimportant,status within the hierarchyof the antislave tradetreaty system was not exclusively conditionedby it alone, but also by a sense of social, judicial, economic, cultural, and political qualities that connoted "civilization." To a certain degree, then, Hobson and Sharmanare right to say that "a state is defined as a great power to the extent that it conforms to a social discourse that defines great power status at a particulartime."75 The crucial point here is that this also holds for lesser powers, whose status (or lack of it) may, in fact, be even more vulnerableto prevailing discourses. Institutionalistmodels of internationalhierarchyprovide a better explanationas to why these states were treated in such different ways. They see hierarchical arrangementsas the product of states' desires to reduce the costs of their transactions and to deal with external threats more efficiently than they could in isolation: generally speaking, the higher the transactioncosts, and the more threatening
74. Mill 1882, Vol. 1, 191. 75. Hobson and Sharman2005, 87.
the problem at hand, the more likely it will be that states will accept a relatively binding hierarchy,one that leaves fewer "rightsof residual control"to subordinate actors. Although this line of argumentmay help to explain several features of the treaty system, the most importantpoint for now is that it can address the gap in realist theories noted above, namely the differences in the treaties with weak "civIn ilized" states and weak "barbarians." dealings with the former,the British could rely on relatively advanced technologies for communication and had less uncertainty about the political decision-making processes at work within the respective states. Perhapsthe British may also have had less uncertaintyabout the effectiveness of national judicial processes for the prosecution of slavers, although they frequently worried about the lack of official zeal for the antislaving cause in countries such as Portugal and the Netherlands.Overall, transactionswith African rulers were more difficult, more costly, and less certain in their outcomes. As institutionalists argue, these factors would work to make a more binding treaty system with African rulers much more attractiveto the British, and this may well explain why they sought to lock African and, eventually, Muslim rulers, into a more restrictive kind of treaty regime, which left the latter with fewer residual rights over the actual business of putting down the slave trade. Relatively backward technologies, greateruncertaintyabout treaty enforcement, and greater heterogeneity would all contribute to high transaction costs and make a restrictive hierarchymore likely. However, one difficulty thatremainsfor the institutionalistposition is to explain why treaties with African rulerstypically became more restrictiveover time, rather than less. At the very beginning of the antislave trade treaty-makingprocess, and in earlier treaties made during the seventeenth and eighteenth centuries, African and Muslim rulers were typically offered more generous terms, often quite similar to British agreements with other countries in Europe. In contrast with what the institutionalist model would lead one to expect, African rulers lost status within the hierarchy as relations between them and the British government were placed on a more regular footing, as the latter gained more and better information than before about the structureof African society and politics.76The British colony at Sierra Leone, for example, provided a regular post from which expeditions could go out to neighboring chiefs to secure agreements, and to ensure that their costs were decreasing. By the 1840s more or less permanentBritish naval squadrons were patrollingthe western coast of Africa, again reducing the transactioncosts of making and enforcing agreements with African rulers, not least through economies of scale. Yet, throughoutthe period, one sees a persistent decline in the status of African rulers within the treaty system. Even when African rulers did give enthusiastic supportto the antislaving cause and proved themselves more reliable allies than the less zealous Europeanor American states, the prize they won was not incorporation into a less restrictivehierarchythat grantedthem increasedrights
76. Law 1995 on the unfolding of Anglo-Dahomian negotiations.
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of residual control, but, if anything, the opposite: admission into protected status under the British. It seems that inequalities in capabilities alone cannot explain how super- and subordinateroles were assigned within this international hierarchy,nor were transaction costs and the possible benefits of a new governance regime the only factors that determined how tightly subordinateactors were constrained within the system. It is difficult to explain why British treaty-makingagainst the slave trade developed as it did without taking account of the change in internationallegal doctrine that had earlier taken place, when the universalist assumptionsof natural law theory were jettisoned in favor of the more Eurocentricbias that accompanied the shift to positivist jurisprudence,and especially the emergence of the new idea of "civilized" nations as uniquely competent to make the treaties that were now becoming the primarysource of internationallaw. Broadly speaking, then, the case view of interprovides empirical supportfor a constructivistand poststructuralist national hierarchies when, as Wendt and Friedheim put it, "an importantfeature 77 of such systems is ... the negotiation of the terms of each actor's identity." This was precisely what was at issue in the context of the antislave tradetreaty system. were more importantthan calcuQuestions about "civilization" and "barbarism" lations of power or the effectiveness of the regime at maximizing benefits and were always locked into unusuallyrestrictiveagreeminimizingcosts. "Barbarians" states" were always treatedmore generously. ments; "civilized This conclusion is strengthenedby the fact that these were the very terms that the British used to explain to themselves how they should make the treaties.To be sure, the British noted the "pettiness"of the native chiefs, but this point was made In much more rarely than the repeated insistence on their "barbarousness." addition, the British seldom made explicit commenton the difficultiesinvolved in negotiating and enforcing the treatiesas a reason for changing their terms and language. If the British were thinking about the treaty system in terms of transactioncosts, they were doing so in a remarkablyindirect and inexplicit way. Moreover, their disdain for the African rulers even led them, perversely enough, into a double bind that threatenedto make the regime weaker than it might otherwise have been. personalityinto question, the British underBy calling African rulers'international mined the very rights that they were hoping to obtain: if the chiefs were not competent enough to possess sovereign prerogatives, they also could not give them away to the British. The notion that these agreements were not proper "treaties" was therefore awkward to maintain, and in practice government officials freBut quently dignified them with that label in their external correspondence.78 this was not the only way in which the British spited themselves: they were so anxious
77. Wendt and Friedheim 1995, 720. 78. Staveley's report in House of Lords (23 April 1849) is a noteworthy example; see also Phillimore 1879. Similar questions of internationallaw were raised by British treaties of cession with African rulersand agreementswith the "Native States"of India:see Westlake 1894, 87; andAlexandrowicz 1973, 30-31.

to keep the principle of reciprocityout of the African agreementsthat it was deliberately excluded as something that should not be considered in dealings with "barbarouschiefs," even if this meant that the specific terms of the treaties,for example on debt repayment,had to be relaxed in ways that were detrimentalto other British interests because on those issues the chiefs would insist on reciprocal treatment. It is hard to think of a clearer example of the logic of appropriateness trumpingthe logic of consequences.
Conclusions
The case studied here lends empirical supportto what one might broadly describe as a constructivist or poststructuralistview of how hierarchical systems develop in internationalrelations. But, within the context of that research program,it also adds to the historical understandingof the complex process through which the and hierarchyof "civilized,""semi-civilized," "barbarous," "savage"peoples was constructed. Treaty-makingis a somewhat neglected part of this story. As noted earlier, a lot of work has been done on the development of the ideas of civilization and barbarismin political and legal thought, and there is, of course, a similarly impressive literature on the encounters between European and non-European peoples and the subsequent development of European empires. A study of how how these treaty-makingwas changing duringthis period is vital to understanding ideas and practices affected the normative structureof internationalsociety. Treaties are certainly not the only way in which norms develop in international relations, and, as I have shown, it is importantto be aware of the changing cultural and doctrinal contexts within which treaty-makingoperates. But treaties are still valuable indicators. They are acknowledged to be an importantpart of the normsto "become process of "normcascade,"which typically requires"emergent" 79 institutionalizedin specific sets of internationalrules and organizations." Or, as John Vincent more picturesquelyput it, internationallaw helps to locate the otherwise rathernebulous entity of internationalsociety, "like a miner's lamp locating gas."o80 Rather than rely on the writings of political theorists or legal philosophers, the relevance of which to the actual conduct of internationalrelations is often hard to determine, treaties provide a concrete way of assessing the norms that internationalactors believe to be operatingat any given time. The provisions contained in treaties also allow one to see in very specific detail how the British regardedthe status of individual rulers and to make quite precise judgments about the moments when the status of those rulers changed. The antislave trade treaty system is particularlyuseful in this respect, because it embraced so many different kinds of actors, in treaties that are directly comparable with one another since they all address the same issue and were made at
79. Finnemore and Sikkink 1998, 900. 80. Vincent 1990, 55.
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more or less the same time. It thus provides a good measure of how the scope of international society was changingduringthe early nineteenthcentury,which graphillustrates Charles Alexandrowicz's perceptive thesis that, during the early ically years of positive internationallaw, the once universal family of nations posited by before startingto expand again in the later ninenaturallawyers actually "shrank," Alexandrowicz argued this point with respect to teenth and twentieth centuries."8 East Asian sovereigns, and in this article I have shown that much the same fate-in a yet more precipitatemanner--befell African rulers during the 1830s and 1840s. Although the weakness of Asian and African rulers relative to European states was obviously a contributoryfactor, and while the high transactioncosts involved in dealing with these rulers perhaps made it sensible for Europeans to want to lock them into regimes that restricted their freedoms dramatically,I have argued that it is impossible to understand exactly how and why international society "shrank"when and where it did without taking account of the intellectual and doctrinal developments described earlier in the article. But the case studied here still poses puzzles for constructivist,poststructuralist, and other approachesthat stress the importanceof the culturalcontext within which internationalrelations develop. For example, it is interesting, contra Alexandrowicz, to compare this process of the "shrinking"of internationalsociety in terms of the exclusion of African rulers with an area where the society of states was simultaneously expanding: the new Latin American republics. Here, new states were accepted by the British as sovereign equals with perhaps surprisingalacrity and enjoyed the norms of reciprocity and mutuality that were generally understood to characterizeinternationalrelations within the charmedcircle of the "family of civilized nations."In part,this differencemay also suggest the need to qualify claims about the importance of a "racialdiscourse" to the civilization/barbarism distinction.82Although some of these new states were dominated by white settlers, many were racially more mixed than typical Europeansocieties, and some, notably Haiti, had a very differentprofile altogether.Racistjudgmentswere unquespeoples," but tionably part of the hierarchyof "civilized nations"and "barbarous status within it depended on a complicated mixture of social, economic, cultural, and judicial indicators as well. Another intriguing puzzle for constructivist work in this area is that this contractionof international society was so closely boundup with what is nearly always understood,not without justification, as a universalistic, cosmopolitan, and egalitarianmoment in the developmentof international norms:the abolition of the slave IndividualAfricans were being broughtback into the community of mantrade.83 kind; but, at the same time, African rulers and the societies they ruled were being
81. Alexandrowicz 1967. 82. See Grovogui 1996; Anghie 1999; and Hobson and Sharman2005. 83. See Ray 1989; Nadelmann 1990; Keck and Sikkink 1998, 41-51; Crawford2002, 159-90; and Finnemore 2003, 68-69. Note also the criticisms of this view in Doyle 1996, 37-38; and Kaufmann and Pape 1999.
expelled from the family of nations. This is, perhaps, an occupational hazard of cosmopolitan activism, since the activist is, by definition, always seeking to promote his or her vision of what the cosmopolis looks like, who its members are, and the grounds on which they qualify. Nevertheless, these complexities suggest that one needs to be careful not to think of norm change simply in terms of moral learning or progress in internationalrelations. Here, perhapsit is helpful to recall the somewhat more skeptical attitudeof members of the English school about the warnuniversalizabilityof "Westernvalues" and, more recently, poststructuralist about the way in which representationalpractices always involve simultaings neous acts of inclusion and exclusion.84The antislave tradetreatysystem is a good example of how progress in one area (the abolition of slave trading) can be counterbalancedby more questionable developments in another(the exclusion of African states from the family of nations). The broader question this raises is more historical than theoretical: what exactly are the "cultures"that have shaped international relations? Constructivists and poststructuralistsdeserve to be congraturelationstheoriststo acknowledge lated for theirefforts in forcing otherinternational the importance of discourse, ideas, and norms. But that task having been accomplished, what lies ahead in the immediate future of this research program is an immense historical effort to understandwhich discourses, which ideas, and which norms matter,and why they come to prominence when they do.
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