Chapter XII: The Essentials in the Struggle (4)

_Seventhly._ That the memorialists be informed, that in all
cases to which the authority of Congress extends, they will
exercise it for the humane objects of the memorialists, so far
as they can be promoted on the principles of justice,
humanity, and good policy.

* * * * *

REPORT OF THE COMMITTEE OF THE WHOLE.

_First._ That the migration or importation of such persons as
any of the States now existing shall think proper to admit,
cannot be prohibited by Congress, prior to the year one
thousand eight hundred and eight.

_Secondly._ That Congress have no authority to interfere in
the emancipation of slaves, or in the treatment of them within
any of the States; it remaining with the several States alone
to provide any regulation therein, which humanity and true
policy may require.

_Thirdly._ That Congress have authority to restrain the
citizens of the United States from carrying on the African
trade, for the purpose of supplying foreigners with slaves,
and of providing, by proper regulations, for the humane
treatment, during their passage, of slaves imported by the
said citizens into the States admitting such importation.

_Fourthly._ That Congress have authority to prohibit
foreigners from fitting out vessels in any port of the United
States for transporting persons from Africa to any foreign
port.

47. ~The Act of 1794.~ This declaration of the powers of the central government over the slave-trade bore early fruit in the second Congress, in the shape of a shower of petitions from abolition societies in Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, Maryland, and Virginia.[30] In some of these slavery was denounced as "an outrageous violation of one of the most essential rights of human nature,"[31] and the slave-trade as a traffic "degrading to the rights of man" and "repugnant to reason."[32] Others declared the trade "injurious to the true commercial interest of a nation,"[33] and asked Congress that, having taken up the matter, they do all in their power to limit the trade. Congress was, however, determined to avoid as long as possible so unpleasant a matter, and, save an angry attempt to censure a Quaker petitioner,[34] nothing was heard of the slave-trade until the third Congress.

Meantime, news came from the seas southeast of Carolina and Georgia which influenced Congress more powerfully than humanitarian arguments had done. The wild revolt of despised slaves, the rise of a noble black leader, and the birth of a new nation of Negro freemen frightened the pro-slavery advocates and armed the anti-slavery agitation. As a result, a Quaker petition for a law against the transport traffic in slaves was received without a murmur in 1794,[35] and on March 22 the first national act against the slave-trade became a law.[36] It was designed "to prohibit the carrying on the Slave Trade from the United States to any foreign place or country," or the fitting out of slavers in the United States for that country. The penalties for violation were forfeiture of the ship, a fine of $1000 for each person engaged, and of $200 for each slave transported. If the Quakers thought this a triumph of anti-slavery sentiment, they were quickly undeceived. Congress might willingly restrain the country from feeding West Indian turbulence, and yet be furious at a petition like that of 1797,[37] calling attention to "the oppressed state of our brethren of the African race" in this country, and to the interstate slave-trade. "Considering the present extraordinary state of the West India Islands and of Europe," young John Rutledge insisted "that 'sufficient for the day is the evil thereof,' and that they ought to shut their door against any thing which had a tendency to produce the like confusion in this country." After excited debate and some investigation by a special committee, the petition was ordered, in both Senate and House, to be withdrawn.

48. ~The Act of 1800.~ In the next Congress, the sixth, another petition threw the House into paroxysms of slavery debate. Waln of Pennsylvania presented the petition of certain free colored men of Pennsylvania praying for a revision of the slave-trade laws and of the fugitive-slave law, and for prospective emancipation.[38] Waln moved the reference of this memorial to a committee already appointed on the revision of the loosely drawn and poorly enforced Act of 1794.[39] Rutledge of South Carolina immediately arose. He opposed the motion, saying, that these petitions were continually coming in and stirring up discord; that it was a good thing the Negroes were in slavery; and that already "too much of this new-fangled French philosophy of liberty and equality" had found its way among them. Others defended the right of petition, and declared that none wished Congress to exceed its powers. Brown of Rhode Island, a new figure in Congress, a man of distinguished services and from a well-known family, boldly set forth the commercial philosophy of his State. "We want money," said he, "we want a navy; we ought therefore to use the means to obtain it. We ought to go farther than has yet been proposed, and repeal the bills in question altogether, for why should we see Great Britain getting all the slave trade to themselves; why may not our country be enriched by that lucrative traffic? There would not be a slave the more sold, but we should derive the benefits by importing from Africa as well as that nation." Waln, in reply, contended that they should look into "the slave trade, much of which was still carrying on from Rhode Island, Boston and Pennsylvania." Hill of North Carolina called the House back from this general discussion to the petition in question, and, while willing to remedy any existing defect in the Act of 1794, hoped the petition would not be received. Dana of Connecticut declared that the paper "contained nothing but a farrago of the French metaphysics of liberty and equality;" and that "it was likely to produce some of the dreadful scenes of St. Domingo." The next day Rutledge again warned the House against even discussing the matter, as "very serious, nay, dreadful effects, must be the inevitable consequence." He held up the most lurid pictures of the fatuity of the French Convention in listening to the overtures of the "three emissaries from St. Domingo," and thus yielding "one of the finest islands in the world" to "scenes which had never been practised since the destruction of Carthage." "But, sir," he continued, "we have lived to see these dreadful scenes. These horrid effects have succeeded what was conceived once to be trifling. Most important consequences may be the result, although gentlemen little apprehend it. But we know the situation of things there, although they do not, and knowing we deprecate it. There have been emissaries amongst us in the Southern States; they have begun their war upon us; an actual organization has commenced; we have had them meeting in their club rooms, and debating on that subject.... Sir, I do believe that persons have been sent from France to feel the pulse of this country, to know whether these [i.e., the Negroes] are the proper engines to make use of: these people have been talked to; they have been tampered with, and this is going on."

Finally, after censuring certain parts of this Negro petition, Congress committed the part on the slave-trade to the committee already appointed. Meantime, the Senate sent down a bill to amend the Act of 1794, and the House took this bill under consideration.[40] Prolonged debate ensued. Brown of Rhode Island again made a most elaborate plea for throwing open the foreign slave-trade. Negroes, he said, bettered their condition by being enslaved, and thus it was morally wrong and commercially indefensible to impose "a heavy fine and imprisonment ... for carrying on a trade so advantageous;" or, if the trade must be stopped, then equalize the matter and abolish slavery too. Nichols of Virginia thought that surely the gentlemen would not advise the importation of more Negroes; for while it "was a fact, to be sure," that they would thus improve their condition, "would it be policy so to do?" Bayard of Delaware said that "a more dishonorable item of revenue" than that derived from the slave-trade "could not be established." Rutledge opposed the new bill as defective and impracticable: the former act, he said, was enough; the States had stopped the trade, and in addition the United States had sought to placate philanthropists by stopping the use of our ships in the trade. "This was going very far indeed." New England first began the trade, and why not let them enjoy its profits now as well as the English? The trade could not be stopped.

The bill was eventually recommitted and reported again.[41] "On the question for its passing, a long and warm debate ensued," and several attempts to postpone it were made; it finally passed, however, only Brown of Rhode Island, Dent of Maryland, Rutledge and Huger of South Carolina, and Dickson of North Carolina voting against it, and 67 voting for it.[42] This Act of May 10, 1800,[43] greatly strengthened the Act of 1794. The earlier act had prohibited citizens from equipping slavers for the foreign trade; but this went so far as to forbid them having any interest, direct or indirect, in such voyages, or serving on board slave-ships in any capacity. Imprisonment for two years was added to the former fine of $2000, and United States commissioned ships were directed to capture such slavers as prizes. The slaves though forfeited by the owner, were not to go to the captor; and the act omitted to say what disposition should be made of them.

49. ~The Act of 1803.~ The Haytian revolt, having been among the main causes of two laws, soon was the direct instigation to a third. The frightened feeling in the South, when freedmen from the West Indies began to arrive in various ports, may well be imagined. On January 17, 1803, the town of Wilmington, North Carolina, hastily memorialized Congress, stating the arrival of certain freed Negroes from Guadeloupe, and apprehending "much danger to the peace and safety of the people of the Southern States of the Union" from the "admission of persons of that description into the United States."[44] The House committee which considered this petition hastened to agree "That the system of policy stated in the said memorial to exist, and to be now pursued in the French colonial government, of the West Indies, is fraught with danger to the peace and safety of the United States. That the fact stated to have occurred in the prosecution of that system of policy, demands the prompt interference of the Government of the United States, as well Legislative as Executive."[45] The result was a bill providing for the forfeiture of any ship which should bring into States prohibiting the same "any negro, mulatto, or other person of color;" the captain of the ship was also to be punished. After some opposition[46] the bill became a law, February 28, 1803.[47]

50. ~State of the Slave-Trade from 1789 to 1803.~ Meantime, in spite of the prohibitory State laws, the African slave-trade to the United States continued to flourish. It was notorious that New England traders carried on a large traffic.[48] Members stated on the floor of the House that "it was much to be regretted that the severe and pointed statute against the slave trade had been so little regarded. In defiance of its forbiddance and its penalties, it was well known that citizens and vessels of the United States were still engaged in that traffic.... In various parts of the nation, outfits were made for slave-voyages, without secrecy, shame, or apprehension.... Countenanced by their fellow-citizens at home, who were as ready to buy as they themselves were to collect and to bring to market, they approached our Southern harbors and inlets, and clandestinely disembarked the sooty offspring of the Eastern, upon the ill fated soil of the Western hemisphere. In this way, it had been computed that, during the last twelve months, twenty thousand enslaved negroes had been transported from Guinea, and, by smuggling, added to the plantation stock of Georgia and South Carolina. So little respect seems to have been paid to the existing prohibitory statute, that it may almost be considered as disregarded by common consent."[49]

These voyages were generally made under the flag of a foreign nation, and often the vessel was sold in a foreign port to escape confiscation. South Carolina's own Congressman confessed that although the State had prohibited the trade since 1788, she "was unable to enforce" her laws. "With navigable rivers running into the heart of it," said he, "it was impossible, with our means, to prevent our Eastern brethren, who, in some parts of the Union, in defiance of the authority of the General Government, have been engaged in this trade, from introducing them into the country. The law was completely evaded, and, for the last year or two [1802-3], Africans were introduced into the country in numbers little short, I believe, of what they would have been had the trade been a legal one."[50] The same tale undoubtedly might have been told of Georgia.

51. ~The South Carolina Repeal of 1803.~ This vast and apparently irrepressible illicit traffic was one of three causes which led South Carolina, December 17, 1803, to throw aside all pretence and legalize her growing slave-trade; the other two causes were the growing certainty of total prohibition of the traffic in 1808, and the recent purchase of Louisiana by the United States, with its vast prospective demand for slave labor. Such a combination of advantages, which meant fortunes to planters and Charleston slave-merchants, could not longer be withheld from them; the prohibition was repealed, and the United States became again, for the first time in at least five years, a legal slave mart. This action shocked the nation, frightening Southern States with visions of an influx of untrained barbarians and servile insurrections, and arousing and intensifying the anti-slavery feeling of the North, which had long since come to think of the trade, so far as legal enactment went, as a thing of the past.

Scarcely a month after this repeal, Bard of Pennsylvania solemnly addressed Congress on the matter. "For many reasons," said he, "this House must have been justly surprised by a recent measure of one of the Southern States. The impressions, however, which that measure gave my mind, were deep and painful. Had I been informed that some formidable foreign Power had invaded our country, I would not, I ought not, be more alarmed than on hearing that South Carolina had repealed her law prohibiting the importation of slaves.... Our hands are tied, and we are obliged to stand confounded, while we see the flood-gate opened, and pouring incalculable miseries into our country."[51] He then moved, as the utmost legal measure, a tax of ten dollars per head on slaves imported.

Debate on this proposition did not occur until February 14, when Lowndes explained the circumstances of the repeal, and a long controversy took place.[52] Those in favor of the tax argued that the trade was wrong, and that the tax would serve as some slight check; the tax was not inequitable, for if a State did not wish to bear it she had only to prohibit the trade; the tax would add to the revenue, and be at the same time a moral protest against an unjust and dangerous traffic. Against this it was argued that if the tax furnished a revenue it would defeat its own object, and make prohibition more difficult in 1808; it was inequitable, because it was aimed against one State, and would fall exclusively on agriculture; it would give national sanction to the trade; it would look "like an attempt in the General Government to correct a State for the undisputed exercise of its constitutional powers;" the revenue would be inconsiderable, and the United States had nothing to do with the moral principle; while a prohibitory tax would be defensible, a small tax like this would be useless as a protection and criminal as a revenue measure.

The whole debate hinged on the expediency of the measure, few defending South Carolina's action.[53] Finally, a bill was ordered to be brought in, which was done on the 17th.[54] Another long debate took place, covering substantially the same ground. It was several times hinted that if the matter were dropped South Carolina might again prohibit the trade. This, and the vehement opposition, at last resulted in the postponement of the bill, and it was not heard from again during the session.

52. ~The Louisiana Slave-Trade, 1803-1805.~ About this time the cession of Louisiana brought before Congress the question of the status of slavery and the slave-trade in the Territories. Twice or thrice before had the subject called for attention. The first time was in the Congress of the Confederation, when, by the Ordinance of 1787,[55] both slavery and the slave-trade were excluded from the Northwest Territory. In 1790 Congress had accepted the cession of North Carolina back lands on the express condition that slavery there be undisturbed.[56] Nothing had been said as to slavery in the South Carolina cession (1787),[57] but it was tacitly understood that the provision of the Northwest Ordinance would not be applied. In 1798 the bill introduced for the cession of Mississippi contained a specific declaration that the anti-slavery clause of 1787 should not be included.[58] The bill passed the Senate, but caused long and excited debate in the House.[59] It was argued, on the one hand, that the case in Mississippi was different from that in the Northwest Territory, because slavery was a legal institution in all the surrounding country, and to prohibit the institution was virtually to prohibit the settling of the country. On the other hand, Gallatin declared that if this amendment should not obtain, "he knew not how slaves could be prevented from being introduced by way of New Orleans, by persons who are not citizens of the United States." It was moved to strike out the excepting clause; but the motion received only twelve votes,--an apparent indication that Congress either did not appreciate the great precedent it was establishing, or was reprehensibly careless. Harper of South Carolina then succeeded in building up the Charleston slave-trade interest by a section forbidding the slave traffic from "without the limits of the United States." Thatcher moved to strike out the last clause of this amendment, and thus to prohibit the interstate trade, but he failed to get a second.[60] Thus the act passed, punishing the introduction of slaves from without the country by a fine of $300 for each slave, and freeing the slave.[61]

In 1804 President Jefferson communicated papers to Congress on the status of slavery and the slave-trade in Louisiana.[62] The Spanish had allowed the traffic by edict in 1793, France had not stopped it, and Governor Claiborne had refrained from interference. A bill erecting a territorial government was already pending.[63] The Northern "District of Louisiana" was placed under the jurisdiction of Indiana Territory, and was made subject to the provisions of the Ordinance of 1787. Various attempts were made to amend the part of the bill referring to the Southern Territory: first, so as completely to prohibit the slave-trade;[64] then to compel the emancipation at a certain age of all those imported;[65] next, to confine all importation to that from the States;[66] and, finally, to limit it further to slaves imported before South Carolina opened her ports.[67] The last two amendments prevailed, and the final act also extended to the Territory the Acts of 1794 and 1803. Only slaves imported before May 1, 1798, could be introduced, and those must be slaves of actual settlers.[68] All slaves illegally imported were freed.

This stringent act was limited to one year. The next year, in accordance with the urgent petition of the inhabitants, a bill was introduced against these restrictions.[69] By dexterous wording, this bill, which became a law March 2, 1805,[70] swept away all restrictions upon the slave-trade except that relating to foreign ports, and left even this provision so ambiguous that, later, by judicial interpretation of the law,[71] the foreign slave-trade was allowed, at least for a time.

Such a stream of slaves now poured into the new Territory that the following year a committee on the matter was appointed by the House.[72] The committee reported that they "are in possession of the fact, that African slaves, lately imported into Charleston, have been thence conveyed into the territory of Orleans, and, in their opinion, this practice will be continued to a very great extent, while there is no law to prevent it."[73] The House ordered a bill checking this to be prepared; and such a bill was reported, but was soon dropped.[74] Importations into South Carolina during this time reached enormous proportions. Senator Smith of that State declared from official returns that, between 1803 and 1807, 39,075 Negroes were imported into Charleston, most of whom went to the Territories.[75]

53. ~Last Attempts at Taxation, 1805-1806.~ So alarming did the trade become that North Carolina passed a resolution in December, 1804,[76] proposing that the States give Congress power to prohibit the trade. Massachusetts,[77] Vermont,[78] New Hampshire,[79] and Maryland[80] responded; and a joint resolution was introduced in the House, proposing as an amendment to the Constitution "That the Congress of the United States shall have power to prevent the further importation of slaves into the United States and the Territories thereof."[81] Nothing came of this effort; but meantime the project of taxation was revived. A motion to this effect, made in February, 1805, was referred to a Committee of the Whole, but was not discussed. Early in the first session of the ninth Congress the motion of 1805 was renewed; and although again postponed on the assurance that South Carolina was about to stop the trade,[82] it finally came up for debate January 20, 1806.[83] Then occurred a most stubborn legislative battle, which lasted during the whole session.[84] Several amendments to the motion were first introduced, so as to make it apply to all immigrants, and again to all "persons of color." As in the former debate, it was proposed to substitute a resolution of censure on South Carolina. All these amendments were lost. A long debate on the expediency of the measure followed, on the old grounds. Early of Georgia dwelt especially on the double taxation it would impose on Georgia; others estimated that a revenue of one hundred thousand dollars might be derived from the tax, a sum sufficient to replace the tax on pepper and medicines. Angry charges and counter-charges were made,--e.g., that Georgia, though ashamed openly to avow the trade, participated in it as well as South Carolina. "Some recriminations ensued between several members, on the participation of the traders of some of the New England States in carrying on the slave trade." Finally, January 22, by a vote of 90 to 25, a tax bill was ordered to be brought in.[85] One was reported on the 27th.[86] Every sort of opposition was resorted to. On the one hand, attempts were made to amend it so as to prohibit importation after 1807, and to prevent importation into the Territories; on the other hand, attempts were made to recommit and postpone the measure. It finally got a third reading, but was recommitted to a select committee, and disappeared until February 14.[87] Being then amended so as to provide for the forfeiture of smuggled cargoes, but saying nothing as to the disposition of the slaves, it was again relegated to a committee, after a vote of 69 to 42 against postponement.[88] On March 4 it appeared again, and a motion to reject it was lost. Finally, in the midst of the war scare and the question of non-importation of British goods, the bill was apparently forgotten, and the last attempt to tax imported slaves ended, like the others, in failure.

54. ~Key-Note of the Period.~ One of the last acts of this period strikes again the key-note which sounded throughout the whole of it. On February 20, 1806, after considerable opposition, a bill to prohibit trade with San Domingo passed the Senate.[89] In the House it was charged by one side that the measure was dictated by France, and by the other, that it originated in the fear of countenancing Negro insurrection. The bill, however, became a law, and by continuations remained on the statute-books until 1809. Even at that distance the nightmare of the Haytian insurrection continued to haunt the South, and a proposal to reopen trade with the island caused wild John Randolph to point out the "dreadful evil" of a "direct trade betwixt the town of Charleston and the ports of the island of St. Domingo."[90]

Of the twenty years from 1787 to 1807 it can only be said that they were, on the whole, a period of disappointment so far as the suppression of the slave-trade was concerned. Fear, interest, and philanthropy united for a time in an effort which bade fair to suppress the trade; then the real weakness of the constitutional compromise appeared, and the interests of the few overcame the fears and the humanity of the many.

FOOTNOTES:

[1] Prince, _Digest of the Laws of Georgia_, p. 786; Marbury
and Crawford, _Digest of the Laws of Georgia_, pp. 440, 442.
The exact text of this act appears not to be extant. Section
I. is stated to have been "re-enacted by the constitution."
Possibly this act prohibited slaves also, although this is not
certain. Georgia passed several regulative acts between 1755
and 1793. Cf. Renne, _Colonial Acts of Georgia_, pp. 73-4,
164, note.

[2] Marbury and Crawford, _Digest_, p. 30, § 11. The clause
was penned by Peter J. Carnes of Jefferson. Cf. W.B. Stevens,
_History of Georgia_ (1847), II. 501.

[3] Grimké, _Public Laws_, p. 466.

[4] Cooper and McCord, _Statutes_, VII. 431.

[5] _Ibid._, VII. 433-6, 444, 447.

[6] _Ibid._, VII. 449.

[7] Martin, _Iredell's Acts of Assembly_, I. 492.

[8] _Ibid._, II. 53.

[9] Cf. _Ibid._, II. 94; _Laws of North Carolina_ (revision of
1819), I. 786.

[10] Virginia codified her whole slave legislation in 1792
(_Va. Statutes at Large_, New Ser., I. 122), and amended her
laws in 1798 and 1806 (_Ibid._, III. 251).

[11] Dorsey, _Laws of Maryland, 1796_, I. 334.

[12] _Laws of Delaware, 1797_ (Newcastle ed.), p. 942, ch. 194 b.

[13] Dallas, _Laws_, II. 586.

[14] Paterson, _Digest of the Laws of New Jersey_ (1800), pp.
307-13. In 1804 New Jersey passed an act gradually to abolish
slavery. The legislation of New York at this period was
confined to regulating the exportation of slave criminals
(1790), and to passing an act gradually abolishing slavery
(1799). In 1801 she codified all her acts.

[15] _Acts and Laws of Connecticut_ (ed. 1784), pp. 368, 369, 388.

[16] _Ibid._, p. 412.

[17] _Perpetual Laws of Massachusetts, 1780-89_, pp. 235-6.

[18] _Queries Respecting Slavery_, etc., in _Mass. Hist. Soc.
Coll._, 1st Ser., IV. 205.

[19] _Annals of Cong._, 1 Cong, 1 sess. pp. 336-41.

[20] _Annals of Cong._, 1 Cong. 1 sess. p. 903.

[21] _Ibid._, 1 Cong. 2 sess. pp. 1182-3.

[22] _Journals of Cong., 1782-3_, pp. 418-9. Cf. above, pp.
56-57.

[23] _Annals of Cong._, 1 Cong. 2 sess. p. 1184.

[24] _Ibid._, pp. 1182-91.

[25] _Annals of Cong._, 1 Cong. 2 sess. pp. 1197-1205.

[26] _House Journal_ (repr. 1826), 1 Cong. 2 sess. I. 157-8.

[27] _Annals of Cong._, I Cong. 2 sess. pp. 1413-7.

[28] For the reports and debates, cf. _Annals of Cong._, 1
Cong. 2 sess. pp. 1413-7, 1450-74; _House Journal_ (repr.
1826), 1 Cong. 2 sess. I. 168-81.

[29] A clerical error in the original: "interdict" and
"regulate" should be interchanged.

[30] See _Memorials presented to Congress_, etc. (1792),
published by the Pennsylvania Abolition Society.

[31] From the Virginia petition.

[32] From the petition of Baltimore and other Maryland
societies.

[33] From the Providence Abolition Society's petition.

[34] _House Journal_ (repr. 1826), 2 Cong. 2 sess. I. 627-9;
_Annals of Cong._, 2 Cong. 2 sess. pp. 728-31.

[35] _Annals of Cong._, 3 Cong. 1 sess. pp. 64, 70, 72; _House
Journal_ (repr. 1826), 3 Cong. 1 sess. II. 76, 84-5, 96-100;
_Senate Journal_ (repr. 1820), 3 Cong. 1 sess. II. 51.

[36] _Statutes at Large_, I. 347-9.

[37] _Annals of Cong._, 5 Cong. 2 sess. pp. 656-70, 945-1033.

[38] _Annals of Cong._, 6 Cong. 1 sess. p. 229.

[39] Dec. 12, 1799: _House Journal_ (repr. 1826), 6 Cong. 1
sess. III. 535. For the debate, see _Annals of Cong._, 6 Cong.
1 sess. pp. 230-45.

[40] _Senate Journal_ (repr. 1821), 6 Cong. 1 sess. III. 72,
77, 88, 92; see _Ibid._, Index, Bill No. 62; _House Journal_
(repr. 1826), 6 Cong. 1 sess. III., Index, House Bill No. 247.
For the debate, see _Annals of Cong._, 6 Cong. 1 sess. pp.
686-700.

[41] _Annals of Cong._, 6 Cong. 1 sess. p. 697.

[42] _Ibid._, p. 699-700.

[43] _Statutes at Large_, II. 70.

[44] _Annals of Cong._, 7 Cong. 2 sess. pp. 385-6.

[45] _Ibid._, p. 424.

[46] See House Bills Nos. 89 and 101; _Annals of Cong._, 7
Cong. 2 sess. pp. 424, 459-67. For the debate, see _Ibid._,
pp. 459-72.

[47] _Statutes at Large_, II. 205.

[48] Cf. Fowler, _Local Law in Massachusetts and Connecticut_,
etc., p. 126.

[49] Speech of S.L. Mitchell of New York, Feb. 14, 1804:
_Annals of Cong._, 8 Cong. 1 sess. p. 1000. Cf. also speech of
Bedinger: _Ibid._, pp. 997-8.

[50] Speech of Lowndes in the House, Feb. 14, 1804: _Annals of
Cong._, 8 Cong., 1 sess. p. 992. Cf. Stanton's speech later:
_Ibid._, 9 Cong. 2 sess. p. 240.

[51] _Annals of Cong._, 8 Cong. 1 sess. pp. 820, 876.

[52] _Ibid._, pp. 992-1036.

[53] Huger of South Carolina declared that the whole South
Carolina Congressional delegation opposed the repeal of the
law, although they maintained the State's right to do so if
she chose: _Annals of Cong._, 8 Cong. 1 sess. p. 1005.

[54] _Ibid._, pp. 1020-36; _House Journal_ (repr. 1826), 8
Cong. 1 sess. IV 523, 578, 580, 581-5.

[55] On slavery in the Territories, cf. Welling, in _Report
Amer. Hist. Assoc._, 1891, pp. 133-60.

[56] _Statutes at Large_, I. 108.

[57] _Journals of Cong._, XII. 137-8.

[58] _Annals of Cong._, 5 Cong. 1 sess. pp. 511, 515, 532-3.

[59] _Ibid._, 5 Cong. 2 sess. pp. 1235, 1249, 1277-84,
1296-1313.

[60] _Annals of Cong._, 5 Cong. 2 sess. p. 1313.

[61] _Statutes at Large_, I. 549.

[62] _Amer. State Papers, Miscellaneous_, I. No. 177.

[63] _Annals of Cong._, 8 Cong. 1 sess. pp. 106, 211, 223,
231, 233-4, 238.

[64] _Ibid._, pp. 240, 1186.

[65] _Ibid._, p. 241.

[66] _Ibid._, p. 240.

[67] _Ibid._, p. 242.

[68] For further proceedings, see _Annals of Cong._, 8 Cong. 1
sess. pp. 240-55, 1038-79, 1128-9, 1185-9. For the law, see
_Statutes at Large_, II. 283-9.

[69] First, a bill was introduced applying the Northwest
Ordinance to the Territory (_Annals of Cong._, 8 Cong. 2 sess.
pp. 45-6); but this was replaced by a Senate bill (_Ibid._, p.
68; _Senate Journal_, repr. 1821, 8 Cong. 2 sess. III. 464).
For the petition of the inhabitants, see _Annals of Cong._, 8
Cong. 2 sess. p. 727-8.

[70] The bill was hurried through, and there are no records of
debate. Cf. _Annals of Cong._, 8 Cong. 2 sess. pp. 28-69, 727,
871, 957, 1016-20, 1213-5. In _Senate Journal_ (repr. 1821),
III., see Index, Bill No. 8. Importation of slaves was allowed
by a clause erecting a Frame of Government "similar" to that
of the Mississippi Territory.

[71] _Annals of Cong._, 9 Cong. 1 sess. p. 443. The whole
trade was practically foreign, for the slavers merely entered
the Negroes at Charleston and immediately reshipped them to
New Orleans. Cf. _Annals of Cong._, 16 Cong. 1 sess. p. 264.

[72] _House Journal_ (repr. 1826), 9 Cong. 1 sess. V. 264;
_Annals of Cong._, 9 Cong. 1 sess. pp. 445, 878.

[73] _House Reports_, 9 Cong. 1 sess. Feb. 17, 1806.

[74] House Bill No. 123.

[75] _Annals of Cong._, 16 Cong. 2 sess. pp. 73-7. This report
covers the time from Jan. 1, 1804, to Dec. 31, 1807. During
that time the following was the number of ships engaged in the
traffic:--

From Charleston, 61 From Connecticut, 1
" Rhode Island, 59 " Sweden, 1
" Baltimore, 4 " Great Britain, 70
" Boston, 1 " France, 3
" Norfolk, 2 202

The consignees of these slave ships were natives of
Charleston 13
Rhode Island 88
Great Britain 91
France 10
----
202

The following slaves were imported:--
By British vessels 19,949
" French " 1,078
------
21,027

By American vessels:--
" Charleston merchants 2,006
" Rhode Island " 7,958
" Foreign " 5,717
" other Northern " 930
" " Southern " 1,437 18,048
------ ------

Total number of slaves imported, 1804-7 39,075

It is, of course, highly probable that the Custom House
returns were much below the actual figures.

[76] McMaster, _History of the People of the United States_,
III. p. 517.

[77] _House Journal_ (repr. 1826), 8 Cong. 2 sess. V. 171;
_Mass. Resolves_, May, 1802, to March, 1806, Vol. II. A.
(State House ed., p. 239).

[78] _House Journal_ (repr. 1826), 9 Cong. 1 sess. V. 238.

[79] _Ibid._, V. 266.

[80] _Senate Journal_ (repr. 1821), 9 Cong. 1 sess. IV. 76,
77, 79.

[81] _House Journal_ (repr. 1826), 8 Cong. 2 sess. V. 171.

[82] _Annals of Cong._, 9 Cong. 1 sess. p. 274.

[83] _Ibid._, pp. 272-4, 323.

[84] _Ibid._, pp. 346-52, 358-75, etc., to 520.

[85] _Ibid._, pp. 374-5.

[86] See House Bill No. 94.

[87] _Annals of Cong._, 9 Cong. 1 sess. p. 466.

[88] _Annals of Cong._, 9 Cong. 1 sess. pp. 519-20.

[89] _Ibid._, pp. 21, 52, 75, etc., to 138, 485-515, 1228. See
House Bill No. 168. Cf. _Statutes at Large_, II. 421-2.

[90] A few months later, at the expiration of the period,
trade was quietly reopened. _Annals of Cong._, 11 Cong. 1
sess. pp. 443-6.

* * * * *

_Chapter VIII_

THE PERIOD OF ATTEMPTED SUPPRESSION. 1807-1825.

55. The Act of 1807.
56. The First Question: How shall illegally imported Africans be
disposed of?
57. The Second Question: How shall Violations be punished?
58. The Third Question: How shall the Interstate Coastwise Slave-Trade
be protected?
59. Legislative History of the Bill.
60. Enforcement of the Act.
61. Evidence of the Continuance of the Trade.
62. Apathy of the Federal Government.
63. Typical Cases.
64. The Supplementary Acts, 1818-1820.
65. Enforcement of the Supplementary Acts, 1818-1825.

55. ~The Act of 1807.~ The first great goal of anti-slavery effort in the United States had been, since the Revolution, the suppression of the slave-trade by national law. It would hardly be too much to say that the Haytian revolution, in addition to its influence in the years from 1791 to 1806, was one of the main causes that rendered the accomplishment of this aim possible at the earliest constitutional moment. To the great influence of the fears of the South was added the failure of the French designs on Louisiana, of which Toussaint L'Ouverture was the most probable cause. The cession of Louisiana in 1803 challenged and aroused the North on the slavery question again; put the Carolina and Georgia slave-traders in the saddle, to the dismay of the Border States; and brought the whole slave-trade question vividly before the public conscience. Another scarcely less potent influence was, naturally, the great anti-slavery movement in England, which after a mighty struggle of eighteen years was about to gain its first victory in the British Act of 1807.

President Jefferson, in his pacificatory message of December 2, 1806, said: "I congratulate you, fellow-citizens, on the approach of the period at which you may interpose your authority constitutionally, to withdraw the citizens of the United States from all further participation in those violations of human rights which have been so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best interests of our country, have long been eager to proscribe. Although no law you may pass can take prohibitory effect till the first day of the year one thousand eight hundred and eight, yet the intervening period is not too long to prevent, by timely notice, expeditions which cannot be completed before that day."[1]

In pursuance of this recommendation, the very next day Senator Bradley of Vermont introduced into the Senate a bill which, after a complicated legislative history, became the Act of March 2, 1807, prohibiting the African slave-trade.[2]

Three main questions were to be settled by this bill: first, and most prominent, that of the disposal of illegally imported Africans; second, that of the punishment of those concerned in the importation; third, that of the proper limitation of the interstate traffic by water.

The character of the debate on these three questions, as well as the state of public opinion, is illustrated by the fact that forty of the sixty pages of officially reported debates are devoted to the first question, less than twenty to the second, and only two to the third. A sad commentary on the previous enforcement of State and national laws is the readiness with which it was admitted that wholesale violations of the law would take place; indeed, Southern men declared that no strict law against the slave-trade could be executed in the South, and that it was only by playing on the motives of personal interest that the trade could be checked. The question of punishment indicated the slowly changing moral attitude of the South toward the slave system. Early boldly said, "A large majority of people in the Southern States do not consider slavery as even an evil."[3] The South, in fact, insisted on regarding man-stealing as a minor offence, a "misdemeanor" rather than a "crime." Finally, in the short and sharp debate on the interstate coastwise trade, the growing economic side of the slavery question came to the front, the vested interests' argument was squarely put, and the future interstate trade almost consciously provided for.

From these considerations, it is doubtful as to how far it was expected that the Act of 1807 would check the slave traffic; at any rate, so far as the South was concerned, there seemed to be an evident desire to limit the trade, but little thought that this statute would definitively suppress it.

56. ~The First Question: How shall illegally imported Africans be disposed of?~ The dozen or more propositions on the question of the disposal of illegally imported Africans may be divided into two chief heads, representing two radically opposed parties: 1. That illegally imported Africans be free, although they might be indentured for a term of years or removed from the country. 2. That such Africans be sold as slaves.[4] The arguments on these two propositions, which were many and far-reaching, may be roughly divided into three classes, political, constitutional, and moral.

The political argument, reduced to its lowest terms, ran thus: those wishing to free the Negroes illegally imported declared that to enslave them would be to perpetrate the very evil which the law was designed to stop. "By the same law," they said, "we condemn the man-stealer and become the receivers of his stolen goods. We punish the criminal, and then step into his place, and complete the crime."[5] They said that the objection to free Negroes was no valid excuse; for if the Southern people really feared this class, they would consent to the imposing of such penalties on illicit traffic as would stop the importation of a single slave.[6] Moreover, "forfeiture" and sale of the Negroes implied a property right in them which did not exist.[7] Waiving this technical point, and allowing them to be "forfeited" to the government, then the government should either immediately set them free, or, at the most, indenture them for a term of years; otherwise, the law would be an encouragement to violators. "It certainly will be," said they, "if the importer can find means to evade the penalty of the act; for there he has all the advantage of a market enhanced by our ineffectual attempt to prohibit."[8] They claimed that even the indenturing of the ignorant barbarian for life was better than slavery; and Sloan declared that the Northern States would receive the freed Negroes willingly rather than have them enslaved.[9]

The argument of those who insisted that the Negroes should be sold was tersely put by Macon: "In adopting our measures on this subject, we must pass such a law as can be executed."[10] Early expanded this: "It is a principle in legislation, as correct as any which has ever prevailed, that to give effect to laws you must not make them repugnant to the passions and wishes of the people among whom they are to operate. How then, in this instance, stands the fact? Do not gentlemen from every quarter of the Union prove, on the discussion of every question that has ever arisen in the House, having the most remote bearing on the giving freedom to the Africans in the bosom of our country, that it has excited the deepest sensibility in the breasts of those where slavery exists? And why is this so? It is, because those who, from experience, know the extent of the evil, believe that the most formidable aspect in which it can present itself, is by making these people free among them. Yes, sir, though slavery is an evil, regretted by every man in the country, to have among us in any considerable quantity persons of this description, is an evil far greater than slavery itself. Does any gentleman want proof of this? I answer that all proof is useless; no fact can be more notorious. With this belief on the minds of the people where slavery exists, and where the importation will take place, if at all, we are about to turn loose in a state of freedom all persons brought in after the passage of this law. I ask gentlemen to reflect and say whether such a law, opposed to the ideas, the passions, the views, and the affections of the people of the Southern States, can be executed? I tell them, no; it is impossible--why? Because no man will inform--why? Because to inform will be to lead to an evil which will be deemed greater than the offence of which information is given, because it will be opposed to the principle of self-preservation, and to the love of family. No, no man will be disposed to jeopard his life, and the lives of his countrymen. And if no one dare inform, the whole authority of the Government cannot carry the law into effect. The whole people will rise up against it. Why? Because to enforce it would be to turn loose, in the bosom of the country, firebrands that would consume them."[11]

This was the more tragic form of the argument; it also had a mercenary side, which was presented with equal emphasis. It was repeatedly said that the only way to enforce the law was to play off individual interests against each other. The profit from the sale of illegally imported Negroes was declared to be the only sufficient "inducement to give information of their importation."[12] "Give up the idea of forfeiture, and I challenge the gentleman to invent fines, penalties, or punishments of any sort, sufficient to restrain the slave trade."[13] If such Negroes be freed, "I tell you that slaves will continue to be imported as heretofore.... You cannot get hold of the ships employed in this traffic. Besides, slaves will be brought into Georgia from East Florida. They will be brought into the Mississippi Territory from the bay of Mobile. You cannot inflict any other penalty, or devise any other adequate means of prevention, than a forfeiture of the Africans in whose possession they may be found after importation."[14] Then, too, when foreigners smuggled in Negroes, "who then ... could be operated on, but the purchasers? There was the rub--it was their interest alone which, by being operated on, would produce a check. Snap their purse-strings, break open their strong box, deprive them of their slaves, and by destroying the temptation to buy, you put an end to the trade, ... nothing short of a forfeiture of the slave would afford an effectual remedy."[15] Again, it was argued that it was impossible to prevent imported Negroes from becoming slaves, or, what was just as bad, from being sold as vagabonds or indentured for life.[16] Even our own laws, it was said, recognize the title of the African slave factor in the transported Negroes; and if the importer have no title, why do we legislate? Why not let the African immigrant alone to get on as he may, just as we do the Irish immigrant?[17] If he should be returned to Africa, his home could not be found, and he would in all probability be sold into slavery again.[18]

The constitutional argument was not urged as seriously as the foregoing; but it had a considerable place. On the one hand, it was urged that if the Negroes were forfeited, they were forfeited to the United States government, which could dispose of them as it saw fit;[19] on the other hand, it was said that the United States, as owner, was subject to State laws, and could not free the Negroes contrary to such laws.[20] Some alleged that the freeing of such Negroes struck at the title to all slave property;[21] others thought that, as property in slaves was not recognized in the Constitution, it could not be in a statute.[22] The question also arose as to the source of the power of Congress over the slave-trade. Southern men derived it from the clause on commerce, and declared that it exceeded the power of Congress to declare Negroes imported into a slave State, free, against the laws of that State; that Congress could not determine what should or should not be property in a State.[23] Northern men replied that, according to this principle, forfeiture and sale in Massachusetts would be illegal; that the power of Congress over the trade was derived from the restraining clause, as a non-existent power could not be restrained; and that the United States could act under her general powers as executor of the Law of Nations.[24]

The moral argument as to the disposal of illegally imported Negroes was interlarded with all the others. On the one side, it began with the "Rights of Man," and descended to a stickling for the decent appearance of the statute-book; on the other side, it began with the uplifting of the heathen, and descended to a denial of the applicability of moral principles to the question. Said Holland of North Carolina: "It is admitted that the condition of the slaves in the Southern States is much superior to that of those in Africa. Who, then, will say that the trade is immoral?"[25] But, in fact, "morality has nothing to do with this traffic,"[26] for, as Joseph Clay declared, "it must appear to every man of common sense, that the question could be considered in a commercial point of view only."[27] The other side declared that, "by the laws of God and man," these captured Negroes are "entitled to their freedom as clearly and absolutely as we are;"[28] nevertheless, some were willing to leave them to the tender mercies of the slave States, so long as the statute-book was disgraced by no explicit recognition of slavery.[29] Such arguments brought some sharp sarcasm on those who seemed anxious "to legislate for the honor and glory of the statute book;"[30] some desired "to know what honor you will derive from a law that will be broken every day of your lives."[31] They would rather boldly sell the Negroes and turn the proceeds over to charity.

The final settlement of the question was as follows:--

"SECTION 4.... And neither the importer, nor any person
or persons claiming from or under him, shall hold any right or
title whatsoever to any negro, mulatto, or person of color, nor
to the service or labor thereof, who may be imported or brought
within the United States, or territories thereof, in violation
of this law, but the same shall remain subject to any
regulations not contravening the provisions of this act, which
the Legislatures of the several States or Territories at any
time hereafter may make, for disposing of any such negro,
mulatto, or person of color."[32]

57. ~The Second Question: How shall Violations be punished?~ The next point in importance was that of the punishment of offenders. The half-dozen specific propositions reduce themselves to two: 1. A violation should be considered a crime or felony, and be punished by death; 2. A violation should be considered a misdemeanor, and be punished by fine and imprisonment.[33]

Advocates of the severer punishment dwelt on the enormity of the offence. It was "one of the highest crimes man could commit," and "a captain of a ship engaged in this traffic was guilty of murder."[34] The law of God punished the crime with death, and any one would rather be hanged than be enslaved.[35] It was a peculiarly deliberate crime, in which the offender did not act in sudden passion, but had ample time for reflection.[36] Then, too, crimes of much less magnitude are punished with death. Shall we punish the stealer of $50 with death, and the man-stealer with imprisonment only?[37] Piracy, forgery, and fraudulent sinking of vessels are punishable with death, "yet these are crimes only against property; whereas the importation of slaves, a crime committed against the liberty of man, and inferior only to murder or treason, is accounted nothing but a misdemeanor."[38] Here, indeed, lies the remedy for the evil of freeing illegally imported Negroes,--in making the penalty so severe that none will be brought in; if the South is sincere, "they will unite to a man to execute the law."[39] To free such Negroes is dangerous; to enslave them, wrong; to return them, impracticable; to indenture them, difficult,--therefore, by a death penalty, keep them from being imported.[40] Here the East had a chance to throw back the taunts of the South, by urging the South to unite with them in hanging the New England slave-traders, assuring the South that "so far from charging their Southern brethren with cruelty or severity in hanging them, they would acknowledge the favor with gratitude."[41] Finally, if the Southerners would refuse to execute so severe a law because they did not consider the offence great, they would probably refuse to execute any law at all for the same reason.[42]

The opposition answered that the death penalty was more than proportionate to the crime, and therefore "immoral."[43] "I cannot believe," said Stanton of Rhode Island, "that a man ought to be hung for only stealing a negro."[44] It was argued that the trade was after all but a "transfer from one master to another;"[45] that slavery was worse than the slave-trade, and the South did not consider slavery a crime: how could it then punish the trade so severely and not reflect on the institution?[46] Severity, it was said, was also inexpedient: severity often increases crime; if the punishment is too great, people will sympathize with offenders and will not inform against them. Said Mr. Mosely: "When the penalty is excessive or disproportioned to the offence, it will naturally create a repugnance to the law, and render its execution odious."[47] John Randolph argued against even fine and imprisonment, "on the ground that such an excessive penalty could not, in such case, be constitutionally imposed by a Government possessed of the limited powers of the Government of the United States."[48]

The bill as passed punished infractions as follows:--

For equipping a slaver, a fine of $20,000 and forfeiture of the
ship.

For transporting Negroes, a fine of $5000 and forfeiture of the
ship and Negroes.

For transporting and selling Negroes, a fine of $1000 to
$10,000, imprisonment from 5 to 10 years, and forfeiture of the
ship and Negroes.

For knowingly buying illegally imported Negroes, a fine of $800
for each Negro, and forfeiture.