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Title: The Suppression of the African Slave Trade to the United States of America
       1638-1870

Author: W. E. B. Du Bois

Release Date: February 7, 2006 [EBook #17700]

Language: English

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THE SUPPRESSION OF THE
AFRICAN SLAVE-TRADE
TO THE
UNITED STATES
OF AMERICA
1638–1870

Volume I

Harvard Historical Studies

1896

Longmans, Green, and Co.

New York

Preface

This monograph was begun during my residence as Rogers Memorial Fellow at Harvard University, and is based mainly upon a study of the sources, i.e., national, State, and colonial statutes, Congressional documents, reports of societies, personal narratives, etc. The collection of laws available for this research was, I think, nearly complete; on the other hand, facts and statistics bearing on the economic side of the study have been difficult to find, and my conclusions are consequently liable to modification from this source.

The question of the suppression of the slave-trade is so intimately connected with the questions as to its rise, the system of American slavery, and the whole colonial policy of the eighteenth century, that it is difficult to isolate it, and at the same time to avoid superficiality on the one hand, and unscientific narrowness of view on the other. While I could not hope entirely to overcome such a difficulty, I nevertheless trust that I have succeeded in rendering this monograph a small contribution to the scientific study of slavery and the American Negro.

I desire to express my obligation to Dr. Albert Bushnell Hart, of Harvard University, at whose suggestion I began this work and by whose kind aid and encouragement I have brought it to a close; also I have to thank the trustees of the John F. Slater Fund, whose appointment made it possible to test the conclusions of this study by the general principles laid down in German universities.

W.E. BURGHARDT Du BOIS.

Wilberforce University,
March, 1896.

5

Contents

9

Chapter I

INTRODUCTORY.

1. Plan of the Monograph. This monograph proposes to set forth the efforts made in the United States of America, from early colonial times until the present, to limit and suppress the trade in slaves between Africa and these shores.

The study begins with the colonial period, setting forth in brief the attitude of England and, more in detail, the attitude of the planting, farming, and trading groups of colonies toward the slave-trade. It deals next with the first concerted effort against the trade and with the further action of the individual States. The important work of the Constitutional Convention follows, together with the history of the trade in that critical period which preceded the Act of 1807. The attempt to suppress the trade from 1807 to 1830 is next recounted. A chapter then deals with the slave-trade as an international problem. Finally the development of the crises up to the Civil War is studied, together with the steps leading to the final suppression; and a concluding chapter seeks to sum up the results of the investigation. Throughout the monograph the institution of slavery and the interstate slave-trade are considered only incidentally.

2. The Rise of the English Slave-Trade. Any attempt to consider the attitude of the English colonies toward the African slave-trade must be prefaced by a word as to the attitude of England herself and the development of the trade in her hands.1

Sir John Hawkins's celebrated voyage took place in 1562, but probably not until 16312 did a regular chartered company 10undertake to carry on the trade.3 This company was unsuccessful,4 and was eventually succeeded by the "Company of Royal Adventurers trading to Africa," chartered by Charles II. in 1662, and including the Queen Dowager and the Duke of York.5 The company contracted to supply the West Indies with three thousand slaves annually; but contraband trade, misconduct, and war so reduced it that in 1672 it surrendered its charter to another company for £34,000.6 This new corporation, chartered by Charles II. as the "Royal African Company," proved more successful than its predecessors, and carried on a growing trade for a quarter of a century.

In 1698 Parliamentary interference with the trade began. By the Statute 9 and 10 William and Mary, chapter 26, private traders, on payment of a duty of 10% on English goods exported to Africa, were allowed to participate in the trade. This was brought about by the clamor of the merchants, especially the "American Merchants," who "in their Petition suggest, that it would be a great Benefit to the Kingdom to secure the Trade by maintaining Forts and Castles there, with an equal Duty upon all Goods exported."7 This plan, being a compromise between maintaining the monopoly intact and entirely abolishing it, was adopted, and the statute declared the trade "highly Beneficial and Advantageous to this Kingdom, and to the Plantations and Colonies thereunto belonging."

Having thus gained practically free admittance to the field, English merchants sought to exclude other nations by securing a monopoly of the lucrative Spanish colonial slave-trade.11 Their object was finally accomplished by the signing of the Assiento in 1713.8

The Assiento was a treaty between England and Spain by which the latter granted the former a monopoly of the Spanish colonial slave-trade for thirty years, and England engaged to supply the colonies within that time with at least 144,000 slaves, at the rate of 4,800 per year. England was also to advance Spain 200,000 crowns, and to pay a duty of 33½ crowns for each slave imported. The kings of Spain and England were each to receive one-fourth of the profits of the trade, and the Royal African Company were authorized to import as many slaves as they wished above the specified number in the first twenty-five years, and to sell them, except in three ports, at any price they could get.

It is stated that, in the twenty years from 1713 to 1733, fifteen thousand slaves were annually imported into America by the English, of whom from one-third to one-half went to the Spanish colonies.9 To the company itself the venture proved a financial failure; for during the years 1729–1750 Parliament assisted the Royal Company by annual grants which amounted to £90,000,10 and by 1739 Spain was a creditor to the extent of £68,000, and threatened to suspend the treaty. The war interrupted the carrying out of the contract, but the Peace of Aix-la-Chapelle extended the limit by four years. Finally, October 5, 1750, this privilege was waived for a money consideration paid to England; the Assiento was ended, and the Royal Company was bankrupt.

By the Statute 23 George II., chapter 31, the old company was dissolved and a new "Company of Merchants trading to Africa" erected in its stead.11 Any merchant so desiring was allowed to engage in the trade on payment of certain small duties, and such merchants formed a company headed by nine directors. This marked the total abolition of monopoly in the 12slave-trade, and was the form under which the trade was carried on until after the American Revolution.

That the slave-trade was the very life of the colonies had, by 1700, become an almost unquestioned axiom in British practical economics. The colonists themselves declared slaves "the strength and sinews of this western world,"12 and the lack of them "the grand obstruction"13 here, as the settlements "cannot subsist without supplies of them."14 Thus, with merchants clamoring at home and planters abroad, it easily became the settled policy of England to encourage the slave-trade. Then, too, she readily argued that what was an economic necessity in Jamaica and the Barbadoes could scarcely be disadvantageous to Carolina, Virginia, or even New York. Consequently, the colonial governors were generally instructed to "give all due encouragement and invitation to merchants and others, ... and in particular to the royal African company of England."15 Duties laid on the importer, and all acts in any way restricting the trade, were frowned upon and very often disallowed. "Whereas," ran Governor Dobbs's instructions, "Acts have been passed in some of our Plantations in America for laying duties on the importation and exportation of Negroes to the great discouragement of the Merchants trading thither from the coast of Africa.... It is our Will and Pleasure that you do not give your assent to or pass any Law imposing duties upon Negroes imported into our Province of North Carolina."16

The exact proportions of the slave-trade to America can be but approximately determined. From 1680 to 1688 the African Company sent 249 ships to Africa, shipped there 60,78313 Negro slaves, and after losing 14,387 on the middle passage, delivered 46,396 in America. The trade increased early in the eighteenth century, 104 ships clearing for Africa in 1701; it then dwindled until the signing of the Assiento, standing at 74 clearances in 1724. The final dissolution of the monopoly in 1750 led—excepting in the years 1754–57, when the closing of Spanish marts sensibly affected the trade—to an extraordinary development, 192 clearances being made in 1771. The Revolutionary War nearly stopped the traffic; but by 1786 the clearances had risen again to 146.

To these figures must be added the unregistered trade of Americans and foreigners. It is probable that about 25,000 slaves were brought to America each year between 1698 and 1707. The importation then dwindled, but rose after the Assiento to perhaps 30,000. The proportion, too, of these slaves carried to the continent now began to increase. Of about 20,000 whom the English annually imported from 1733 to 1766, South Carolina alone received some 3,000. Before the Revolution, the total exportation to America is variously estimated as between 40,000 and 100,000 each year. Bancroft places the total slave population of the continental colonies at 59,000 in 1714, 78,000 in 1727, and 293,000 in 1754. The census of 1790 showed 697,897 slaves in the United States.17

In colonies like those in the West Indies and in South Carolina and Georgia, the rapid importation into America of a multitude of savages gave rise to a system of slavery far different from that which the late Civil War abolished. The strikingly harsh and even inhuman slave codes in these colonies show this. Crucifixion, burning, and starvation were legal modes of punishment.18 The rough and brutal character of the time and place was partly responsible for this, but a more decisive reason lay in the fierce and turbulent character of the imported Negroes. The docility to which long years of bondage and strict discipline gave rise was absent, and in14surrections and acts of violence were of frequent occurrence.19 Again and again the danger of planters being "cut off by their own negroes"20 is mentioned, both in the islands and on the continent. This condition of vague dread and unrest not only increased the severity of laws and strengthened the police system, but was the prime motive back of all the earlier efforts to check the further importation of slaves.

On the other hand, in New England and New York the Negroes were merely house servants or farm hands, and were treated neither better nor worse than servants in general in those days. Between these two extremes, the system of slavery varied from a mild serfdom in Pennsylvania and New Jersey to an aristocratic caste system in Maryland and Virginia.

15

Chapter II

THE PLANTING COLONIES.

3. Character of these Colonies. The planting colonies are those Southern settlements whose climate and character destined them to be the chief theatre of North American slavery. The early attitude of these communities toward the slave-trade is therefore of peculiar interest; for their action was of necessity largely decisive for the future of the trade and for the institution in North America. Theirs was the only soil, climate, and society suited to slavery; in the other colonies, with few exceptions, the institution was by these same factors doomed from the beginning. Hence, only strong moral and political motives could in the planting colonies overthrow or check a traffic so favored by the mother country.

4. Restrictions in Georgia. In Georgia we have an example of a community whose philanthropic founders sought to impose upon it a code of morals higher than the colonists wished. The settlers of Georgia were of even worse moral fibre than their slave-trading and whiskey-using neighbors in Carolina and Virginia; yet Oglethorpe and the London proprietors prohibited from the beginning both the rum and the slave traffic, refusing to "suffer slavery (which is against the Gospel as well as the fundamental law of England) to be authorised under our authority."1 The trustees sought to win the colonists over to their belief by telling them that money could be better expended in transporting white men than Negroes; that slaves would be a source of weakness to the 16colony; and that the "Produces designed to be raised in the Colony would not require such Labour as to make Negroes necessary for carrying them on."2

This policy greatly displeased the colonists, who from 1735, the date of the first law, to 1749, did not cease to clamor for the repeal of the restrictions.3 As their English agent said, they insisted that "In Spight of all Endeavours to disguise this Point, it is as clear as Light itself, that Negroes are as essentially necessary to the Cultivation of Georgia, as Axes, Hoes, or any other Utensil of Agriculture."4 Meantime, evasions and infractions of the laws became frequent and notorious. Negroes were brought across from Carolina and "hired" for life.5 "Finally, purchases were openly made in Savannah from African traders: some seizures were made by those who opposed the principle, but as a majority of the magistrates were favorable to the introduction of slaves into the province, legal decisions were suspended from time to time, and a strong disposition evidenced by the courts to evade the operation of the law."6 At last, in 1749, the colonists prevailed on the trustees and the government, and the trade was thrown open under careful restrictions, which limited importation, required a registry and quarantine on all slaves brought in, and laid a duty.7 It is probable, however, that these restrictions were never enforced, and that the trade thus established continued unchecked until the Revolution.

5. Restrictions in South Carolina.8 South Carolina had the largest and most widely developed slave-trade of any of 17the continental colonies. This was owing to the character of her settlers, her nearness to the West Indian slave marts, and the early development of certain staple crops, such as rice, which were adapted to slave labor.9 Moreover, this colony suffered much less interference from the home government than many other colonies; thus it is possible here to trace the untrammeled development of slave-trade restrictions in a typical planting community.

As early as 1698 the slave-trade to South Carolina had reached such proportions that it was thought that "the great number of negroes which of late have been imported into this Collony may endanger the safety thereof." The immigration of white servants was therefore encouraged by a special law.10 Increase of immigration reduced this disproportion, but Negroes continued to be imported in such numbers as to afford considerable revenue from a moderate duty on them. About the time when the Assiento was signed, the slave-trade so increased that, scarcely a year after the consummation of that momentous agreement, two heavy duty acts were passed, because "the number of Negroes do extremely increase in this Province, and through the afflicting providence of God, the white persons do not proportionately multiply, by reason whereof, the safety of the said Province is greatly endangered."1118 The trade, however, by reason of the encouragement abroad and of increased business activity in exporting naval stores at home, suffered scarcely any check, although repeated acts, reciting the danger incident to a "great importation of Negroes," were passed, laying high duties.12 Finally, in 1717, an additional duty of £40,13 although due in depreciated currency, succeeded so nearly in stopping the trade that, two years later, all existing duties were repealed and one of £10 substituted.14 This continued during the time of resistance to the proprietary government, but by 1734 the importation had again reached large proportions. "We must therefore beg leave," the colonists write in that year, "to inform your Majesty, that, amidst our other perilous circumstances, we are subject to many intestine dangers from the great number of negroes that are now among us, who amount at least to twenty-two thousand persons, and are three to one of all your Majesty's white subjects in this province. Insurrections against us have been often attempted."15 In 1740 an insurrection under a slave, Cato, at Stono, caused such widespread alarm that a prohibitory duty of £100 was immediately laid.16 Importation was again checked; but in 1751 the colony sought to devise a plan whereby the slightly restricted immigration of Negroes should provide a fund to encourage the importation of white servants, "to prevent the mischiefs that may be attended by the great importation of negroes into this Province."17 Many white servants were thus encouraged to settle in the colony; but so much larger was the influx of black slaves that the colony, in 1760, totally prohibited the slave-trade. This act was promptly disallowed by the Privy Council and 19the governor reprimanded;18 but the colony declared that "an importation of negroes, equal in number to what have been imported of late years, may prove of the most dangerous consequence in many respects to this Province, and the best way to obviate such danger will be by imposing such an additional duty upon them as may totally prevent the evils."19 A prohibitive duty of £100 was accordingly imposed in 1764.20 This duty probably continued until the Revolution.

The war made a great change in the situation. It has been computed by good judges that, between the years 1775 and 1783, the State of South Carolina lost twenty-five thousand Negroes, by actual hostilities, plunder of the British, runaways, etc. After the war the trade quickly revived, and considerable revenue was raised from duty acts until 1787, when by act and ordinance the slave-trade was totally prohibited.21 This prohibition, by renewals from time to time, lasted until 1803.

6. Restrictions in North Carolina. In early times there were few slaves in North Carolina;22 this fact, together with the troubled and turbulent state of affairs during the early colonial period, did not necessitate the adoption of any settled policy toward slavery or the slave-trade. Later the slave-trade to the colony increased; but there is no evidence of any effort to restrict or in any way regulate it before 1786, when it was declared that "the importation of slaves into this State is productive of evil consequences and highly impolitic,"23 and a prohibitive duty was laid on them.

7. Restrictions in Virginia.24 Next to South Carolina, Virginia had probably the largest slave-trade. Her situation, 20however, differed considerably from that of her Southern neighbor. The climate, the staple tobacco crop, and the society of Virginia were favorable to a system of domestic slavery, but one which tended to develop into a patriarchal serfdom rather than into a slave-consuming industrial hierarchy. The labor required by the tobacco crop was less unhealthy than that connected with the rice crop, and the Virginians were, perhaps, on a somewhat higher moral plane than the Carolinians. There was consequently no such insatiable demand for slaves in the larger colony. On the other hand, the power of the Virginia executive was peculiarly strong, and it was not possible here to thwart the slave-trade policy of the home government as easily as elsewhere.

Considering all these circumstances, it is somewhat difficult to determine just what was the attitude of the early Virginians toward the slave-trade. There is evidence, however, to show that although they desired the slave-trade, the rate at which the Negroes were brought in soon alarmed them. In 1710 a duty of £5 was laid on Negroes, but Governor Spotswood "soon perceived that the laying so high a Duty on Negros was intended to discourage the importation," and vetoed the measure.25 No further restrictive legislation was attempted for some years, but whether on account of the attitude of the governor or the desire of the inhabitants, is not clear. With21 1723 begins a series of acts extending down to the Revolution, which, so far as their contents can be ascertained, seem to have been designed effectually to check the slave-trade. Some of these acts, like those of 1723 and 1727, were almost immediately disallowed.26 The Act of 1732 laid a duty of 5%, which was continued until 1769,27 and all other duties were in addition to this; so that by such cumulative duties the rate on slaves reached 25% in 1755,28 and 35% at the time of Braddock's expedition.29 These acts were found "very burthensome," "introductive of many frauds," and "very inconvenient,"30 and were so far repealed that by 1761 the duty was only 15%. As now the Burgesses became more powerful, two or more bills proposing restrictive duties were passed, but disallowed.31 By 1772 the anti-slave-trade feeling had become considerably developed, and the Burgesses petitioned the king, declaring that "The importation of slaves into the colonies from the coast of Africa hath long been considered as a trade of great inhumanity, and under its present encouragement, we have too much reason to fear will endanger the very existence of your Majesty's American dominions.... Deeply impressed with these sentiments, we most humbly beseech your Majesty to remove all those restraints on your Majesty's governors of this colony, which inhibit their assenting to such laws as might check so very pernicious a commerce."32

Nothing further appears to have been done before the war. When, in 1776, the delegates adopted a Frame of Government, it was charged in this document that the king had perverted his high office into a "detestable and insupportable tyranny, by ... prompting our negroes to rise in arms among us, those very negroes whom, by an inhuman use of his negative, he hath refused us permission to exclude by law."33 Two years later, in 1778, an "Act to prevent the further 22importation of Slaves" stopped definitively the legal slave-trade to Virginia.34

8. Restrictions in Maryland.35 Not until the impulse of the Assiento had been felt in America, did Maryland make any attempt to restrain a trade from which she had long enjoyed a comfortable revenue. The Act of 1717, laying a duty of 40s.,36 may have been a mild restrictive measure. The duties were slowly increased to 50s. in 1754,37 and £4. in 1763.38 In 1771 a prohibitive duty of £9 was laid;39 and in 1783, after the war, all importation by sea was stopped and illegally imported Negroes were freed.40

Compared with the trade to Virginia and the Carolinas, the slave-trade to Maryland was small, and seems at no time to have reached proportions which alarmed the inhabitants. It was regulated to the economic demand by a slowly increasing tariff, and finally, after 1769, had nearly ceased of its own accord before the restrictive legislation of Revolutionary times.41 Probably the proximity of Maryland to Vir23ginia made an independent slave-trade less necessary to her.

9. General Character of these Restrictions. We find in the planting colonies all degrees of advocacy of the trade, from the passiveness of Maryland to the clamor of Georgia. Opposition to the trade did not appear in Georgia, was based almost solely on political fear of insurrection in Carolina, and sprang largely from the same motive in Virginia, mingled with some moral repugnance. As a whole, it may be said that whatever opposition to the slave-trade there was in the planting colonies was based principally on the political fear of insurrection.

24

Chapter III

THE FARMING COLONIES.

10. Character of these Colonies. The colonies of this group, occupying the central portion of the English possessions, comprise those communities where, on account of climate, physical characteristics, and circumstances of settlement, slavery as an institution found but a narrow field for development. The climate was generally rather cool for the newly imported slaves, the soil was best suited to crops to which slave labor was poorly adapted, and the training and habits of the great body of settlers offered little chance for the growth of a slave system. These conditions varied, of course, in different colonies; but the general statement applies to all. These communities of small farmers and traders derived whatever opposition they had to the slave-trade from three sorts of motives,—economic, political, and moral. First, the importation of slaves did not pay, except to supply a moderate demand for household servants. Secondly, these colonies, as well as those in the South, had a wholesome political fear of a large servile population. Thirdly, the settlers of many of these colonies were of sterner moral fibre than the Southern cavaliers and adventurers, and, in the absence of great counteracting motives, were more easily led to oppose the institution and the trade. Finally, it must be noted that these colonies did not so generally regard themselves as temporary commercial investments as did Virginia and Carolina. Intending to found permanent States, these settlers from the first more carefully studied the ultimate interests of those States.

11. The Dutch Slave-Trade. The Dutch seem to have commenced the slave-trade to the American continent, the Middle colonies and some of the Southern receiving supplies from 25them. John Rolfe relates that the last of August, 1619, there came to Virginia "a dutch man of warre that sold us twenty Negars."1 This was probably one of the ships of the numerous private Dutch trading-companies which early entered into and developed the lucrative African slave-trade. Ships sailed from Holland to Africa, got slaves in exchange for their goods, carried the slaves to the West Indies or Brazil, and returned home laden with sugar.2 Through the enterprise of one of these trading-companies the settlement of New Amsterdam was begun, in 1614. In 1621 the private companies trading in the West were all merged into the Dutch West India Company, and given a monopoly of American trade. This company was very active, sending in four years 15,430 Negroes to Brazil,3 carrying on war with Spain, supplying even the English plantations,4 and gradually becoming the great slave carrier of the day.

The commercial supremacy of the Dutch early excited the envy and emulation of the English. The Navigation Ordinance of 1651 was aimed at them, and two wars were necessary to wrest the slave-trade from them and place it in the hands of the English. The final terms of peace among other things surrendered New Netherland to England, and opened the way for England to become henceforth the world's greatest slave-trader. Although the Dutch had thus commenced the continental slave-trade, they had not actually furnished a very large number of slaves to the English colonies outside the West Indies. A small trade had, by 1698, brought a few thousand to New York, and still fewer to New Jersey.5 It was left to the English, with their strong policy in its favor, to develop this trade.

12. Restrictions in New York.6 The early ordinances of 26the Dutch, laying duties, generally of ten per cent, on slaves, probably proved burdensome to the trade, although this was not intentional.7 The Biblical prohibition of slavery and the slave-trade, copied from New England codes into the Duke of York's Laws, had no practical application,8 and the trade continued to be encouraged in the governors' instructions. In 1709 a duty of £3 was laid on Negroes from elsewhere than Africa.9 This was aimed at West India slaves, and was prohibitive. By 1716 the duty on all slaves was £1 12½s., which was probably a mere revenue figure.10 In 1728 a duty of 40s. was laid, to be continued until 1737.11 It proved restrictive, however, and on the "humble petition of the Merchants and27 Traders of the City of Bristol" was disallowed in 1735, as "greatly prejudicial to the Trade and Navigation of this Kingdom."12 Governor Cosby was also reminded that no duties on slaves payable by the importer were to be laid. Later, in 1753, the 40s. duty was restored, but under the increased trade of those days was not felt.13 No further restrictions seem to have been attempted until 1785, when the sale of slaves in the State was forbidden.14

The chief element of restriction in this colony appears to have been the shrewd business sense of the traders, who never flooded the slave market, but kept a supply sufficient for the slowly growing demand. Between 1701 and 1726 only about 2,375 slaves were imported, and in 1774 the total slave population amounted to 21,149.15 No restriction was ever put by New York on participation in the trade outside the colony, and in spite of national laws New York merchants continued to be engaged in this traffic even down to the Civil War.16

Vermont, who withdrew from New York in 1777, in her 28first Constitution17 declared slavery illegal, and in 1786 stopped by law the sale and transportation of slaves within her boundaries.18

13. Restrictions in Pennsylvania and Delaware.19 One of the first American protests against the slave-trade came from certain German Friends, in 1688, at a Weekly Meeting held in Germantown, Pennsylvania. "These are the reasons," wrote "Garret henderich, derick up de graeff, Francis daniell Pastorius, and Abraham up Den graef," "why we are against the traffick of men-body, as followeth: Is there any that would be done or handled at this manner?... Now, tho they are black, we cannot conceive there is more liberty to have them slaves, as it is to have other white ones. There is a saying, that we shall doe to all men like as we will be done ourselves; making no difference of what generation, descent or colour they are. And those who steal or robb men, and those who 29buy or purchase them, are they not all alike?"20 This little leaven helped slowly to work a revolution in the attitude of this great sect toward slavery and the slave-trade. The Yearly Meeting at first postponed the matter, "It having so General a Relation to many other Parts."21 Eventually, however, in 1696, the Yearly Meeting advised "That Friends be careful not to encourage the bringing in of any more Negroes."22 This advice was repeated in stronger terms for a quarter-century,23 and by that time Sandiford, Benezet, Lay, and Woolman had begun their crusade. In 1754 the Friends took a step farther and made the purchase of slaves a matter of discipline.24 Four years later the Yearly Meeting expressed itself clearly as "against every branch of this practice," and declared that if "any professing with us should persist to vindicate it, and be concerned in importing, selling or purchasing slaves, the respective Monthly Meetings to which they belong should manifest their disunion with such persons."25 Further, manumission was recommended, and in 1776 made compulsory.26 The effect of this attitude of the Friends was early manifested in the legislation of all the colonies where the sect was influential, and particularly in Pennsylvania.

One of the first duty acts (1710) laid a restrictive duty of 40s. on slaves, and was eventually disallowed.27 In 1712 William Southeby petitioned the Assembly totally to abolish slavery. This the Assembly naturally refused to attempt; but the same year, in response to another petition "signed by many hands," they passed an "Act to prevent the Importation of Negroes and Indians,"28—the first enactment of its kind in30 America. This act was inspired largely by the general fear of insurrection which succeeded the "Negro-plot" of 1712 in New York. It declared: "Whereas, divers Plots and Insurrections have frequently happened, not only in the Islands but on the Main Land of America, by Negroes, which have been carried on so far that several of the inhabitants have been barbarously Murthered, an Instance whereof we have lately had in our Neighboring Colony of New York,"29 etc. It then proceeded to lay a prohibitive duty of £20 on all slaves imported. These acts were quickly disposed of in England. Three duty acts affecting Negroes, including the prohibitory act, were in 1713 disallowed, and it was directed that "the Dep^ty Gov^r Council and Assembly of Pensilvania, be & they are hereby Strictly Enjoyned & required not to permit the said Laws ... to be from henceforward put in Execution."30 The Assembly repealed these laws, but in 1715 passed another laying a duty of £5, which was also eventually disallowed.31 Other acts, the provisions of which are not clear, were passed in 1720 and 1722,32 and in 1725–1726 the duty on Negroes was raised to the restrictive figure of £10.33 This duty, for some reason not apparent, was lowered to £2 in 1729,34 but restored again in 1761.35 A struggle occurred over this last measure, the Friends petitioning for it, and the Philadelphia merchants against it, declaring that "We, the subscribers, ever desirous 31to extend the Trade of this Province, have seen, for some time past, the many inconveniencys the Inhabitants have suffer'd for want of Labourers and artificers, ... have for some time encouraged the importation of Negroes;" they prayed therefore at least for a delay in passing the measure.36 The law, nevertheless, after much debate and altercation with the governor, finally passed.

These repeated acts nearly stopped the trade, and the manumission or sale of Negroes by the Friends decreased the number of slaves in the province. The rising spirit of independence enabled the colony, in 1773, to restore the prohibitive duty of £20 and make it perpetual.37 After the Revolution unpaid duties on slaves were collected and the slaves registered,38 and in 1780 an "Act for the gradual Abolition of Slavery" was passed.39 As there were probably at no time before the war more than 11,000 slaves in Pennsylvania,40 the task thus accomplished was not so formidable as in many other States. As it was, participation in the slave-trade outside the colony was not prohibited until 1788.41

It seems probable that in the original Swedish settlements along the Delaware slavery was prohibited.42 This measure had, however, little practical effect; for as soon as the Dutch got control the slave-trade was opened, although, as it appears, to no large extent. After the fall of the Dutch Delaware came into English hands. Not until 1775 do we find any legislation on the slave-trade. In that year the colony attempted 32to prohibit the importation of slaves, but the governor vetoed the bill.43 Finally, in 1776 by the Constitution, and in 1787 by law, importation and exportation were both prohibited.44

14. Restrictions in New Jersey.45 Although the freeholders of West New Jersey declared, in 1676, that "all and every Person and Persons Inhabiting the said Province, shall, as far as in us lies, be free from Oppression and Slavery,"46 yet Negro slaves are early found in the colony.47 The first restrictive measure was passed, after considerable friction between the Council and the House, in 1713; it laid a duty of £10, currency.48 Governor Hunter explained to the Board of Trade that the bill was "calculated to Encourage the Importation of white Servants for the better Peopeling that Country."49 How long this act continued does not appear; probably, not long. No further legislation was enacted until 1762 or 1763, when a prohibitive duty was laid on account of "the inconvenience the Province is exposed to in lying open to the free importation of Negros, when the Provinces on each side have laid duties on them."50 The Board of Trade declared that while they did not object to "the Policy of imposing a reasonable duty," they could not assent to this, and the act was disallowed.51 The Act of 1769 evaded the technical objection of the Board of Trade, and laid a duty of £15 on the first purchasers of Negroes, because, as the act declared, "Duties on the Im33portation of Negroes in several of the neighbouring Colonies hath, on Experience, been found beneficial in the Introduction of sober, industrious Foreigners."52 In 1774 a bill which, according to the report of the Council to Governor Morris, "plainly intended an entire Prohibition of all Slaves being imported from foreign Parts," was thrown out by the Council.53 Importation was finally prohibited in 1786.54

15. General Character of these Restrictions. The main difference in motive between the restrictions which the planting and the farming colonies put on the African slave-trade, lay in the fact that the former limited it mainly from fear of insurrection, the latter mainly because it did not pay. Naturally, the latter motive worked itself out with much less legislation than the former; for this reason, and because they held a smaller number of slaves, most of these colonies have fewer actual statutes than the Southern colonies. In Pennsylvania alone did this general economic revolt against the trade acquire a distinct moral tinge. Although even here the institution was naturally doomed, yet the clear moral insight of the Quakers checked the trade much earlier than would otherwise have happened. We may say, then, that the farming colonies checked the slave-trade primarily from economic motives.

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Chapter IV

THE TRADING COLONIES.

16. Character of these Colonies. The rigorous climate of New England, the character of her settlers, and their pronounced political views gave slavery an even slighter basis here than in the Middle colonies. The significance of New England in the African slave-trade does not therefore lie in the fact that she early discountenanced the system of slavery and stopped importation; but rather in the fact that her citizens, being the traders of the New World, early took part in the carrying slave-trade and furnished slaves to the other colonies. An inquiry, therefore, into the efforts of the New England colonies to suppress the slave-trade would fall naturally into two parts: first, and chiefly, an investigation of the efforts to stop the participation of citizens in the carrying slave-trade; secondly, an examination of the efforts made to banish the slave-trade from New England soil.

17. New England and the Slave-Trade. Vessels from Massachusetts,1 Rhode Island,2 Connecticut,3 and, to a less extent, from New Hampshire,4 were early and largely engaged in the carrying slave-trade. "We know," said Thomas Pemberton in 1795, "that a large trade to Guinea was carried on for many years by the citizens of Massachusetts Colony, who were the proprietors of the vessels and their cargoes, out and 35home. Some of the slaves purchased in Guinea, and I suppose the greatest part of them, were sold in the West Indies."5 Dr. John Eliot asserted that "it made a considerable branch of our commerce.... It declined very little till the Revolution."6 Yet the trade of this colony was said not to equal that of Rhode Island. Newport was the mart for slaves offered for sale in the North, and a point of reshipment for all slaves. It was principally this trade that raised Newport to her commercial importance in the eighteenth century.7 Connecticut, too, was an important slave-trader, sending large numbers of horses and other commodities to the West Indies in exchange for slaves, and selling the slaves in other colonies.

This trade formed a perfect circle. Owners of slavers carried slaves to South Carolina, and brought home naval stores for their ship-building; or to the West Indies, and brought home molasses; or to other colonies, and brought home hogsheads. The molasses was made into the highly prized New England rum, and shipped in these hogsheads to Africa for more slaves.8 Thus, the rum-distilling industry indicates to some extent the activity of New England in the slave-trade. In May, 1752, one Captain Freeman found so many slavers fitting out that, in spite of the large importations of molasses, he could get no rum for his vessel.9 In Newport alone twenty-two stills 36were at one time running continuously;10 and Massachusetts annually distilled 15,000 hogsheads of molasses into this "chief manufacture."11

Turning now to restrictive measures, we must first note the measures of the slave-consuming colonies which tended to limit the trade. These measures, however, came comparatively late, were enforced with varying degrees of efficiency, and did not seriously affect the slave-trade before the Revolution. The moral sentiment of New England put some check upon the trade. Although in earlier times the most respectable people took ventures in slave-trading voyages, yet there gradually arose a moral sentiment which tended to make the business somewhat disreputable.12 In the line, however, of definite legal enactments to stop New England citizens from carrying slaves from Africa to any place in the world, there were, before the Revolution, none. Indeed, not until the years 1787–1788 was slave-trading in itself an indictable offence in any New England State.

The particular situation in each colony, and the efforts to restrict the small importing slave-trade of New England, can best be studied in a separate view of each community.

18. Restrictions in New Hampshire. The statistics of slavery in New Hampshire show how weak an institution it always was in that colony.13 Consequently, when the usual instructions were sent to Governor Wentworth as to the encouragement he must give to the slave-trade, the House replied: "We have considered his Maj^ties Instruction relating to an Impost on Negroes & Felons, to which this House answers, that there never was any duties laid on either, by this Goverm^t, and so few bro't in 37that it would not be worth the Publick notice, so as to make an act concerning them."14 This remained true for the whole history of the colony. Importation was never stopped by actual enactment, but was eventually declared contrary to the Constitution of 1784.15 The participation of citizens in the trade appears never to have been forbidden.

19. Restrictions in Massachusetts. The early Biblical codes of Massachusetts confined slavery to "lawfull Captives taken in iust warres, & such strangers as willingly selle themselves or are sold to us."16 The stern Puritanism of early days endeavored to carry this out literally, and consequently when a certain Captain Smith, about 1640, attacked an African village and brought some of the unoffending natives home, he was promptly arrested. Eventually, the General Court ordered the Negroes sent home at the colony's expense, "conceiving themselues bound by y^e first oportunity to bear witnes against y^e haynos & crying sinn of manstealing, as also to P'scribe such timely redresse for what is past, & such a law for y^e future as may sufficiently deterr all oth^rs belonging to us to have to do in such vile & most odious courses, iustly abhored of all good & iust men."17

The temptation of trade slowly forced the colony from this high moral ground. New England ships were early found in the West Indian slave-trade, and the more the carrying trade developed, the more did the profits of this branch of it attract Puritan captains. By the beginning of the eighteenth century the slave-trade was openly recognized as legitimate commerce; cargoes came regularly to Boston, and "The merchants of Boston quoted negroes, like any other merchandise demanded by their correspondents."18 At the same time, the Puritan conscience began to rebel against the growth of actual slavery on New England soil. It was a much less violent wrenching of moral ideas of right and wrong to allow Mas38sachusetts men to carry slaves to South Carolina than to allow cargoes to come into Boston, and become slaves in Massachusetts. Early in the eighteenth century, therefore, opposition arose to the further importation of Negroes, and in 1705 an act "for the Better Preventing of a Spurious and Mixt Issue," laid a restrictive duty of £4 on all slaves imported.19 One provision of this act plainly illustrates the attitude of Massachusetts: like the acts of many of the New England colonies, it allowed a rebate of the whole duty on re-exportation. The harbors of New England were thus offered as a free exchange-mart for slavers. All the duty acts of the Southern and Middle colonies allowed a rebate of one-half or three-fourths of the duty on the re-exportation of the slave, thus laying a small tax on even temporary importation.

The Act of 1705 was evaded, but it was not amended until 1728, when the penalty for evasion was raised to £100.20 The act remained in force, except possibly for one period of four years, until 1749. Meantime the movement against importation grew. A bill "for preventing the Importation of Slaves into this Province" was introduced in the Legislature in 1767, but after strong opposition and disagreement between House and Council it was dropped.21 In 1771 the struggle was renewed. A similar bill passed, but was vetoed by Governor Hutchinson.22 The imminent war and the discussions incident to it had now more and more aroused public opinion, and there were repeated attempts to gain executive consent to a prohibitory law. In 1774 such a bill was twice passed, but never received assent.23

39

The new Revolutionary government first met the subject in the case of two Negroes captured on the high seas, who were advertised for sale at Salem. A resolution was introduced into the Legislature, directing the release of the Negroes, and declaring "That the selling and enslaving the human species is a direct violation of the natural rights alike vested in all men by their Creator, and utterly inconsistent with the avowed principles on which this, and the other United States, have carried their struggle for liberty even to the last appeal." To this the Council would not consent; and the resolution, as finally passed, merely forbade the sale or ill-treatment of the Negroes.24 Committees on the slavery question were appointed in 1776 and 1777,25 and although a letter to Congress on the matter, and a bill for the abolition of slavery were reported, no decisive action was taken.

All such efforts were finally discontinued, as the system was already practically extinct in Massachusetts and the custom of importation had nearly ceased. Slavery was eventually declared by judicial decision to have been abolished.26 The first step toward stopping the participation of Massachusetts citizens in the slave-trade outside the State was taken in 1785, when a committee of inquiry was appointed by the Legislature.27 No act was, however, passed until 1788, when participation in the trade was prohibited, on pain of £50 forfeit for every slave and £200 for every ship engaged.28

40

20. Restrictions in Rhode Island. In 1652 Rhode Island passed a law designed to prohibit life slavery in the colony. It declared that "Whereas, there is a common course practised amongst English men to buy negers, to that end they may have them for service or slaves forever; for the preventinge of such practices among us, let it be ordered, that no blacke mankind or white being forced by covenant bond, or otherwise, to serve any man or his assighnes longer than ten yeares, or untill they come to bee twentie four yeares of age, if they bee taken in under fourteen, from the time of their cominge within the liberties of this Collonie. And at the end or terme of ten yeares to sett them free, as the manner is with the English servants. And that man that will not let them goe free, or shall sell them away elsewhere, to that end that they may bee enslaved to others for a long time, hee or they shall forfeit to the Collonie forty pounds."29

This law was for a time enforced,30 but by the beginning of the eighteenth century it had either been repealed or become a dead letter; for the Act of 1708 recognized perpetual slavery, and laid an impost of £3 on Negroes imported.31 This duty was really a tax on the transport trade, and produced a steady 41income for twenty years.32 From the year 1700 on, the citizens of this State engaged more and more in the carrying trade, until Rhode Island became the greatest slave-trader in America. Although she did not import many slaves for her own use, she became the clearing-house for the trade of other colonies. Governor Cranston, as early as 1708, reported that between 1698 and 1708 one hundred and three vessels were built in the State, all of which were trading to the West Indies and the Southern colonies.33 They took out lumber and brought back molasses, in most cases making a slave voyage in between. From this, the trade grew. Samuel Hopkins, about 1770, was shocked at the state of the trade: more than thirty distilleries were running in the colony, and one hundred and fifty vessels were in the slave-trade.34 "Rhode Island," said he, "has been more deeply interested in the slave-trade, and has enslaved more Africans than any other colony in New England." Later, in 1787, he wrote: "The inhabitants of Rhode Island, especially those of Newport, have had by far the greater share in this traffic, of all these United States. This trade in human species has been the first wheel of commerce in Newport, on which every other movement in business has chiefly depended. That town has been built up, and flourished in times past, at the expense of the blood, the liberty, and happiness of the poor Africans; and the inhabitants have lived on this, and by it have gotten most of their wealth and riches."35

The Act of 1708 was poorly enforced. The "good intentions" of its framers "were wholly frustrated" by the clandestine "hiding and conveying said negroes out of the town [Newport] into the country, where they lie concealed."36 The act was accordingly strengthened by the Acts of 1712 and 1715, and made to apply to importations by land as well as by sea.37 The Act of 1715, however, favored the trade by admitting42 African Negroes free of duty. The chaotic state of Rhode Island did not allow England often to review her legislation; but as soon as the Act of 1712 came to notice it was disallowed, and accordingly repealed in 1732.38 Whether the Act of 1715 remained, or whether any other duty act was passed, is not clear.

While the foreign trade was flourishing, the influence of the Friends and of other causes eventually led to a movement against slavery as a local institution. Abolition societies multiplied, and in 1770 an abolition bill was ordered by the Assembly, but it was never passed.39 Four years later the city of Providence resolved that "as personal liberty is an essential part of the natural rights of mankind," the importation of slaves and the system of slavery should cease in the colony.40 This movement finally resulted, in 1774, in an act "prohibiting the importation of Negroes into this Colony,"—a law which curiously illustrated the attitude of Rhode Island toward the slave-trade. The preamble of the act declared: "Whereas, the inhabitants of America are generally engaged in the preservation of their own rights and liberties, among which, that of personal freedom must be considered as the greatest; as those who are desirous of enjoying all the advantages of liberty themselves, should be willing to extend personal liberty to others;—Therefore," etc. The statute then proceeded to enact "that for the future, no negro or mulatto slave shall be brought into this colony; and in case any slave shall hereafter be brought in, he or she shall be, and are hereby, rendered immediately free...." The logical ending of such an act would have been a clause prohibiting the participation of Rhode Island citizens in the slave-trade. Not only was such a clause omitted, but the following was inserted instead: "Provided, also, that nothing in this act shall extend, or be deemed to extend, to any negro or mulatto slave brought from the coast of Africa, into the West Indies, 43on board any vessel belonging to this colony, and which negro or mulatto slave could not be disposed of in the West Indies, but shall be brought into this colony. Provided, that the owner of such negro or mulatto slave give bond ... that such negro or mulatto slave shall be exported out of the colony, within one year from the date of such bond; if such negro or mulatto be alive, and in a condition to be removed."41

In 1779 an act to prevent the sale of slaves out of the State was passed,42 and in 1784, an act gradually to abolish slavery.43 Not until 1787 did an act pass to forbid participation in the slave-trade. This law laid a penalty of £100 for every slave transported and £1000 for every vessel so engaged.44

21. Restrictions in Connecticut. Connecticut, in common with the other colonies of this section, had a trade for many years with the West Indian slave markets; and though this trade was much smaller than that of the neighboring colonies, yet many of her citizens were engaged in it. A map of Middletown at the time of the Revolution gives, among one hundred families, three slave captains and "three notables" designated as "slave-dealers."45

The actual importation was small,46 and almost entirely un44restricted before the Revolution, save by a few light, general duty acts. In 1774 the further importation of slaves was prohibited, because "the increase of slaves in this Colony is injurious to the poor and inconvenient." The law prohibited importation under any pretext by a penalty of £100 per slave.47 This was re-enacted in 1784, and provisions were made for the abolition of slavery.48 In 1788 participation in the trade was forbidden, and the penalty placed at £50 for each slave and £500 for each ship engaged.49

22. General Character of these Restrictions. Enough has already been said to show, in the main, the character of the opposition to the slave-trade in New England. The system of slavery had, on this soil and amid these surroundings, no economic justification, and the small number of Negroes here furnished no political arguments against them. The opposition to the importation was therefore from the first based solely on moral grounds, with some social arguments. As to the carrying trade, however, the case was different. Here, too, a feeble moral opposition was early aroused, but it was swept away by the immense economic advantages of the slave traffic to a thrifty seafaring community of traders. This trade no moral suasion, not even the strong "Liberty" cry of the Revolution, was able wholly to suppress, until the closing of the West Indian and Southern markets cut off the demand for slaves.

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Chapter V

THE PERIOD OF THE REVOLUTION. 1774–1787.

23. The Situation in 1774. In the individual efforts of the various colonies to suppress the African slave-trade there may be traced certain general movements. First, from 1638 to 1664, there was a tendency to take a high moral stand against the traffic. This is illustrated in the laws of New England, in the plans for the settlement of Delaware and, later, that of Georgia, and in the protest of the German Friends. The second period, from about 1664 to 1760, has no general unity, but is marked by statutes laying duties varying in design from encouragement to absolute prohibition, by some cases of moral opposition, and by the slow but steady growth of a spirit unfavorable to the long continuance of the trade. The last colonial period, from about 1760 to 1787, is one of pronounced effort to regulate, limit, or totally prohibit the traffic. Beside these general movements, there are many waves of legislation, easily distinguishable, which rolled over several or all of the colonies at various times, such as the series of high duties following the Assiento, and the acts inspired by various Negro "plots."

Notwithstanding this, the laws of the colonies before 1774 had no national unity, the peculiar circumstances of each colony determining its legislation. With the outbreak of the Revolution came unison in action with regard to the slave-trade, as with regard to other matters, which may justly be called national. It was, of course, a critical period,—a period when, in the rapid upheaval of a few years, the complicated and diverse forces of decades meet, combine, act, and react, until 46the resultant seems almost the work of chance. In the settlement of the fate of slavery and the slave-trade, however, the real crisis came in the calm that succeeded the storm, in that day when, in the opinion of most men, the question seemed already settled. And indeed it needed an exceptionally clear and discerning mind, in 1787, to deny that slavery and the slave-trade in the United States of America were doomed to early annihilation. It seemed certainly a legitimate deduction from the history of the preceding century to conclude that, as the system had risen, flourished, and fallen in Massachusetts, New York, and Pennsylvania, and as South Carolina, Virginia, and Maryland were apparently following in the same legislative path, the next generation would in all probability witness the last throes of the system on our soil.

To be sure, the problem had its uncertain quantities. The motives of the law-makers in South Carolina and Pennsylvania were dangerously different; the century of industrial expansion was slowly dawning and awakening that vast economic revolution in which American slavery was to play so prominent and fatal a rôle; and, finally, there were already in the South faint signs of a changing moral attitude toward slavery, which would no longer regard the system as a temporary makeshift, but rather as a permanent though perhaps unfortunate necessity. With regard to the slave-trade, however, there appeared to be substantial unity of opinion; and there were, in 1787, few things to indicate that a cargo of five hundred African slaves would openly be landed in Georgia in 1860.

24. The Condition of the Slave-Trade. In 1760 England, the chief slave-trading nation, was sending on an average to Africa 163 ships annually, with a tonnage of 18,000 tons, carrying exports to the value of £163,818. Only about twenty of these ships regularly returned to England. Most of them carried slaves to the West Indies, and returned laden with sugar and other products. Thus may be formed some idea of the size and importance of the slave-trade at that time, although for a complete view we must add to this the trade under the French, Portuguese, Dutch, and Americans. The trade fell off somewhat toward 1770, but was flourishing again when the Revolution brought a sharp and serious check upon it, 47bringing down the number of English slavers, clearing, from 167 in 1774 to 28 in 1779, and the tonnage from 17,218 to 3,475 tons. After the war the trade gradually recovered, and by 1786 had reached nearly its former extent. In 1783 the British West Indies received 16,208 Negroes from Africa, and by 1787 the importation had increased to 21,023. In this latter year it was estimated that the British were taking annually from Africa 38,000 slaves; the French, 20,000; the Portuguese, 10,000; the Dutch and Danes, 6,000; a total of 74,000. Manchester alone sent £180,000 annually in goods to Africa in exchange for Negroes.1

25. The Slave-Trade and the "Association." At the outbreak of the Revolution six main reasons, some of which were old and of slow growth, others peculiar to the abnormal situation of that time, led to concerted action against the slave-trade. The first reason was the economic failure of slavery in the Middle and Eastern colonies; this gave rise to the presumption that like failure awaited the institution in the South. Secondly, the new philosophy of "Freedom" and the "Rights of man," which formed the corner-stone of the Revolution, made the dullest realize that, at the very least, the slave-trade and a struggle for "liberty" were not consistent. Thirdly, the old fear of slave insurrections, which had long played so prominent a part in legislation, now gained new power from the imminence of war and from the well-founded fear that the British might incite servile uprisings. Fourthly, nearly all the American slave markets were, in 1774–1775, overstocked with slaves, and consequently many of the strongest partisans of the system were "bulls" on the market, and desired to raise the value of their slaves by at least a temporary stoppage of the trade. Fifthly, since the vested interests of the slave-trading merchants were liable to be swept away by the opening of hostilities, and since the price of slaves was low,2 there was from this quarter little active opposition to a cessation of the trade for a season. Finally, it was long a favorite belief of the supporters of the Revolution that, as English exploitation of 48colonial resources had caused the quarrel, the best weapon to bring England to terms was the economic expedient of stopping all commercial intercourse with her. Since, then, the slave-trade had ever formed an important part of her colonial traffic, it was one of the first branches of commerce which occurred to the colonists as especially suited to their ends.3

Such were the complicated moral, political, and economic motives which underlay the first national action against the slave-trade. This action was taken by the "Association," a union of the colonies entered into to enforce the policy of stopping commercial intercourse with England. The movement was not a great moral protest against an iniquitous traffic; although it had undoubtedly a strong moral backing, it was primarily a temporary war measure.

26. The Action of the Colonies. The earlier and largely abortive attempts to form non-intercourse associations generally did not mention slaves specifically, although the Virginia House of Burgesses, May 11, 1769, recommended to merchants and traders, among other things, to agree, "That they will not import any slaves, or purchase any imported after the first day of November next, until the said acts are repealed."4 Later, in 1774, when a Faneuil Hall meeting started the first successful national attempt at non-intercourse, the slave-trade, being at the time especially flourishing, received more attention. Even then slaves were specifically mentioned in the resolutions of but three States. Rhode Island recommended a stoppage of "all trade with Great Britain, Ireland, Africa and the West Indies."5 North Carolina, in August, 1774, resolved in convention "That we will not import any slave or slaves, or purchase any slave or slaves, imported or brought into this Province by others, from any part of the world, after the first day of November next."6 Virginia gave the slave-trade especial prominence, and was in reality the 49leading spirit to force her views on the Continental Congress. The county conventions of that colony first took up the subject. Fairfax County thought "that during our present difficulties and distress, no slaves ought to be imported," and said: "We take this opportunity of declaring our most earnest wishes to see an entire stop forever put to such a wicked, cruel, and unnatural trade."7 Prince George and Nansemond Counties resolved "That the African trade is injurious to this Colony, obstructs the population of it by freemen, prevents manufacturers and other useful emigrants from Europe from settling amongst us, and occasions an annual increase of the balance of trade against this Colony."8 The Virginia colonial convention, August, 1774, also declared: "We will neither ourselves import, nor purchase any slave or slaves imported by any other person, after the first day of November next, either from Africa, the West Indies, or any other place."9

In South Carolina, at the convention July 6, 1774, decided opposition to the non-importation scheme was manifested, though how much this was due to the slave-trade interest is not certain. Many of the delegates wished at least to limit the powers of their representatives, and the Charleston Chamber of Commerce flatly opposed the plan of an "Association." Finally, however, delegates with full powers were sent to Congress. The arguments leading to this step were not in all cases on the score of patriotism; a Charleston manifesto argued: "The planters are greatly in arrears to the merchants; a stoppage of importation would give them all an opportunity to extricate themselves from debt. The merchants would have time to settle their accounts, and be ready with the return of liberty to renew trade."10

27. The Action of the Continental Congress. The first Continental Congress met September 5, 1774, and on September 22 recommended merchants to send no more orders for foreign goods.11 On September 27 "Mr. Lee made a motion for a non-importation," and it was unanimously resolved to 50import no goods from Great Britain after December 1, 1774.12 Afterward, Ireland and the West Indies were also included, and a committee consisting of Low of New York, Mifflin of Pennsylvania, Lee of Virginia, and Johnson of Connecticut were appointed "to bring in a Plan for carrying into Effect the Non-importation, Non-consumption, and Non-exportation resolved on."13 The next move was to instruct this committee to include in the proscribed articles, among other things, "Molasses, Coffee or Piemento from the British Plantations or from Dominica,"—a motion which cut deep into the slave-trade circle of commerce, and aroused some opposition. "Will, can, the people bear a total interruption of the West India trade?" asked Low of New York; "Can they live without rum, sugar, and molasses? Will not this impatience and vexation defeat the measure?"14

The committee finally reported, October 12, 1774, and after three days' discussion and amendment the proposal passed. This document, after a recital of grievances, declared that, in the opinion of the colonists, a non-importation agreement would best secure redress; goods from Great Britain, Ireland, the East and West Indies, and Dominica were excluded; and it was resolved that "We will neither import, nor purchase any Slave imported after the First Day of December next; after which Time, we will wholly discontinue the Slave Trade, and will neither be concerned in it ourselves, nor will we hire our Vessels, nor sell our Commodities or Manufactures to those who are concerned in it."15

Strong and straightforward as this resolution was, time unfortunately proved that it meant very little. Two years later, in this same Congress, a decided opposition was manifested to branding the slave-trade as inhuman, and it was thirteen years before South Carolina stopped the slave-trade or Massachusetts prohibited her citizens from engaging in it. The passing of so strong a resolution must be explained by the motives before given, by the character of the drafting com51mittee, by the desire of America in this crisis to appear well before the world, and by the natural moral enthusiasm aroused by the imminence of a great national struggle.

28. Reception of the Slave-Trade Resolution. The unanimity with which the colonists received this "Association" is not perhaps as remarkable as the almost entire absence of comment on the radical slave-trade clause. A Connecticut town-meeting in December, 1774, noticed "with singular pleasure ... the second Article of the Association, in which it is agreed to import no more Negro Slaves."16 This comment appears to have been almost the only one. There were in various places some evidences of disapproval; but only in the State of Georgia was this widespread and determined, and based mainly on the slave-trade clause.17 This opposition delayed the ratification meeting until January 18, 1775, and then delegates from but five of the twelve parishes appeared, and many of these had strong instructions against the approval of the plan. Before this meeting could act, the governor adjourned it, on the ground that it did not represent the province. Some of the delegates signed an agreement, one article of which promised to stop the importation of slaves March 15, 1775, i.e., four months later than the national "Association" had directed. This was not, of course, binding on the province; and although a town like Darien might declare "our disapprobation and abhorrence of the unnatural practice of Slavery in America"18 yet the powerful influence of Savannah was "not likely soon to give matters a favourable turn. The importers were mostly against any interruption, and the consumers very much divided."19 Thus the efforts of this Assembly failed, their resolutions being almost unknown, and, as a gentleman writes, "I hope for the honour of the Province ever will remain so."20 The delegates to the Continental Congress selected by this rump assembly refused to take their seats.52 Meantime South Carolina stopped trade with Georgia, because it "hath not acceded to the Continental Association,"21 and the single Georgia parish of St. Johns appealed to the second Continental Congress to except it from the general boycott of the colony. This county had already resolved not to "purchase any Slave imported at Savannah (large Numbers of which we understand are there expected) till the Sense of Congress shall be made known to us."22

May 17, 1775, Congress resolved unanimously "That all exportations to Quebec, Nova-Scotia, the Island of St. John's, Newfoundland, Georgia, except the Parish of St. John's, and to East and West Florida, immediately cease."23 These measures brought the refractory colony to terms, and the Provincial Congress, July 4, 1775, finally adopted the "Association," and resolved, among other things, "That we will neither import or purchase any Slave imported from Africa, or elsewhere, after this day."24

The non-importation agreement was in the beginning, at least, well enforced by the voluntary action of the loosely federated nation. The slave-trade clause seems in most States to have been observed with the others. In South Carolina "a cargo of near three hundred slaves was sent out of the Colony by the consignee, as being interdicted by the second article of the Association."25 In Virginia the vigilance committee of Norfolk "hold up for your just indignation Mr. John Brown, Merchant, of this place," who has several times imported slaves from Jamaica; and he is thus publicly censured "to the end that all such foes to the rights of British America may be publickly known ... as the enemies of American Liberty, and that every person may henceforth break off all dealings with him."26

29. Results of the Resolution. The strain of war at last proved too much for this voluntary blockade, and after some 53hesitancy Congress, April 3, 1776, resolved to allow the importation of articles not the growth or manufacture of Great Britain, except tea. They also voted "That no slaves be imported into any of the thirteen United Colonies."27 This marks a noticeable change of attitude from the strong words of two years previous: the former was a definitive promise; this is a temporary resolve, which probably represented public opinion much better than the former. On the whole, the conclusion is inevitably forced on the student of this first national movement against the slave-trade, that its influence on the trade was but temporary and insignificant, and that at the end of the experiment the outlook for the final suppression of the trade was little brighter than before. The whole movement served as a sort of social test of the power and importance of the slave-trade, which proved to be far more powerful than the platitudes of many of the Revolutionists had assumed.

The effect of the movement on the slave-trade in general was to begin, possibly a little earlier than otherwise would have been the case, that temporary breaking up of the trade which the war naturally caused. "There was a time, during the late war," says Clarkson, "when the slave trade may be considered as having been nearly abolished."28 The prices of slaves rose correspondingly high, so that smugglers made fortunes.29 It is stated that in the years 1772–1778 slave merchants of Liverpool failed for the sum of £710,000.30 All this, of course, might have resulted from the war, without the "Association;" but in the long run the "Association" aided in frustrating the very designs which the framers of the first resolve had in mind; for the temporary stoppage in the end created an extraordinary demand for slaves, and led to a slave-trade after the war nearly as large as that before.

30. The Slave-Trade and Public Opinion after the War. The Declaration of Independence showed a significant drift of public opinion from the firm stand taken in the "Association" resolutions. The clique of political philosophers to which Jefferson belonged never imagined the continued exis54tence of the country with slavery. It is well known that the first draft of the Declaration contained a severe arraignment of Great Britain as the real promoter of slavery and the slave-trade in America. In it the king was charged with waging "cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian king of Great Britain. Determined to keep open a market where men should be bought and sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce. And that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people on whom he also obtruded them: thus paying off former crimes committed against the liberties of one people with crimes which he urges them to commit against the lives of another."31

To this radical and not strictly truthful statement, even the large influence of the Virginia leaders could not gain the assent of the delegates in Congress. The afflatus of 1774 was rapidly subsiding, and changing economic conditions had already led many to look forward to a day when the slave-trade could successfully be reopened. More important than this, the nation as a whole was even less inclined now than in 1774 to denounce the slave-trade uncompromisingly. Jefferson himself says that this clause "was struck out in complaisance to South Carolina and Georgia, who had never attempted to restrain the importation of slaves, and who, on the contrary, still wished to continue it. Our northern brethren also, I believe," said he, "felt a little tender under those censures; for though their people had very few slaves themselves, yet they had been pretty considerable carriers of them to others."32

As the war slowly dragged itself to a close, it became in55creasingly evident that a firm moral stand against slavery and the slave-trade was not a probability. The reaction which naturally follows a period of prolonged and exhausting strife for high political principles now set in. The economic forces of the country, which had suffered most, sought to recover and rearrange themselves; and all the selfish motives that impelled a bankrupt nation to seek to gain its daily bread did not long hesitate to demand a reopening of the profitable African slave-trade. This demand was especially urgent from the fact that the slaves, by pillage, flight, and actual fighting, had become so reduced in numbers during the war that an urgent demand for more laborers was felt in the South.

Nevertheless, the revival of the trade was naturally a matter of some difficulty, as the West India circuit had been cut off, leaving no resort except to contraband traffic and the direct African trade. The English slave-trade after the peace "returned to its former state," and was by 1784 sending 20,000 slaves annually to the West Indies.33 Just how large the trade to the continent was at this time there are few means of ascertaining; it is certain that there was a general reopening of the trade in the Carolinas and Georgia, and that the New England traders participated in it. This traffic undoubtedly reached considerable proportions; and through the direct African trade and the illicit West India trade many thousands of Negroes came into the United States during the years 1783–1787.34

Meantime there was slowly arising a significant divergence of opinion on the subject. Probably the whole country still regarded both slavery and the slave-trade as temporary; but the Middle States expected to see the abolition of both within a generation, while the South scarcely thought it probable to prohibit even the slave-trade in that short time. Such a difference might, in all probability, have been satisfactorily adjusted, if both parties had recognized the real gravity of the matter. As it was, both regarded it as a problem of secondary importance, to be solved after many other more pressing ones 56had been disposed of. The anti-slavery men had seen slavery die in their own communities, and expected it to die the same way in others, with as little active effort on their own part. The Southern planters, born and reared in a slave system, thought that some day the system might change, and possibly disappear; but active effort to this end on their part was ever farthest from their thoughts. Here, then, began that fatal policy toward slavery and the slave-trade that characterized the nation for three-quarters of a century, the policy of laissez-faire, laissez-passer.

31. The Action of the Confederation. The slave-trade was hardly touched upon in the Congress of the Confederation, except in the ordinance respecting the capture of slaves, and on the occasion of the Quaker petition against the trade, although, during the debate on the Articles of Confederation, the counting of slaves as well as of freemen in the apportionment of taxes was urged as a measure that would check further importation of Negroes. "It is our duty," said Wilson of Pennsylvania, "to lay every discouragement on the importation of slaves; but this amendment [i.e., to count two slaves as one freeman] would give the jus trium liberorum to him who would import slaves."35 The matter was finally compromised by apportioning requisitions according to the value of land and buildings.

After the Articles went into operation, an ordinance in regard to the recapture of fugitive slaves provided that, if the capture was made on the sea below high-water mark, and the Negro was not claimed, he should be freed. Matthews of South Carolina demanded the yeas and nays on this proposition, with the result that only the vote of his State was recorded against it.36

On Tuesday, October 3, 1783, a deputation from the Yearly Meeting of the Pennsylvania, New Jersey, and Delaware Friends asked leave to present a petition. Leave was granted the following day,37 but no further minute appears. According to the report of the Friends, the petition was against the 57slave-trade; and "though the Christian rectitude of the concern was by the Delegates generally acknowledged, yet not being vested with the powers of legislation, they declined promoting any public remedy against the gross national iniquity of trafficking in the persons of fellow-men."38

The only legislative activity in regard to the trade during the Confederation was taken by the individual States.39 Before 1778 Connecticut, Vermont, Pennsylvania, Delaware, and Virginia had by law stopped the further importation of slaves, and importation had practically ceased in all the New England and Middle States, including Maryland. In consequence of the revival of the slave-trade after the War, there was then a lull in State activity until 1786, when North Carolina laid a prohibitive duty, and South Carolina, a year later, began her series of temporary prohibitions. In 1787–1788 the New England States forbade the participation of their citizens in the traffic. It was this wave of legislation against the traffic which did so much to blind the nation as to the strong hold which slavery still had on the country.

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Chapter VI

THE FEDERAL CONVENTION. 1787.

32. The First Proposition. Slavery occupied no prominent place in the Convention called to remedy the glaring defects of the Confederation, for the obvious reason that few of the delegates thought it expedient to touch a delicate subject which, if let alone, bade fair to settle itself in a manner satisfactory to all. Consequently, neither slavery nor the slave-trade is specifically mentioned in the delegates' credentials of any of the States, nor in Randolph's, Pinckney's, or Hamilton's plans, nor in Paterson's propositions. Indeed, the debate from May 14 to June 19, when the Committee of the Whole reported, touched the subject only in the matter of the ratio of representation of slaves. With this same exception, the report of the Committee of the Whole contained no reference to slavery or the slave-trade, and the twenty-three resolutions of the Convention referred to the Committee of Detail, July 23 and 26, maintain the same silence.

The latter committee, consisting of Rutledge, Randolph, Gorham, Ellsworth, and Wilson, reported a draft of the Constitution August 6, 1787. The committee had, in its deliberations, probably made use of a draft of a national Constitution made by Edmund Randolph.1 One clause of this provided that "no State shall lay a duty on imports;" and, also, "1. No duty on exports. 2. No prohibition on such inhabitants as the United States think proper to admit. 3. No duties by way of such prohibition." It does not appear that any reference to Negroes was here intended. In the extant copy, however, 59notes in Edward Rutledge's handwriting change the second clause to "No prohibition on such inhabitants or people as the several States think proper to admit."2 In the report, August 6, these clauses take the following form:—

"Article VII. Section 4. No tax or duty shall be laid by the legislature on articles exported from any state; nor on the migration or importation of such persons as the several states shall think proper to admit; nor shall such migration or importation be prohibited."3

33. The General Debate. This, of course, referred both to immigrants ("migration") and to slaves ("importation").4 Debate on this section began Tuesday, August 22, and lasted two days. Luther Martin of Maryland precipitated the discussion by a proposition to alter the section so as to allow a prohibition or tax on the importation of slaves. The debate immediately became general, being carried on principally by Rutledge, the Pinckneys, and Williamson from the Carolinas; Baldwin of Georgia; Mason, Madison, and Randolph of Virginia; Wilson and Gouverneur Morris of Pennsylvania; Dickinson of Delaware; and Ellsworth, Sherman, Gerry, King, and Langdon of New England.5

In this debate the moral arguments were prominent. Colonel George Mason of Virginia denounced the traffic in slaves as "infernal;" Luther Martin of Maryland regarded it as "inconsistent with the principles of the revolution, and dishonorable to the American character." "Every principle of honor and safety," declared John Dickinson of Delaware, "demands the exclusion of slaves." Indeed, Mason solemnly averred that the crime of slavery might yet bring the judgment of God on the nation. On the other side, Rutledge of South Carolina bluntly declared that religion and humanity had nothing to do with the question, that it was a matter of "interest" alone. Gerry of Massachusetts wished merely to refrain from giving direct sanction to the trade, while others contented themselves with pointing out the inconsistency of condemning the slave-trade and defending slavery.

60

The difficulty of the whole argument, from the moral standpoint, lay in the fact that it was completely checkmated by the obstinate attitude of South Carolina and Georgia. Their delegates—Baldwin, the Pinckneys, Rutledge, and others—asserted flatly, not less than a half-dozen times during the debate, that these States "can never receive the plan if it prohibits the slave-trade;" that "if the Convention thought" that these States would consent to a stoppage of the slave-trade, "the expectation is vain."6 By this stand all argument from the moral standpoint was virtually silenced, for the Convention evidently agreed with Roger Sherman of Connecticut that "it was better to let the Southern States import slaves than to part with those States."

In such a dilemma the Convention listened not unwillingly to the non possumus arguments of the States' Rights advocates. The "morality and wisdom" of slavery, declared Ellsworth of Connecticut, "are considerations belonging to the States themselves;" let every State "import what it pleases;" the Confederation has not "meddled" with the question, why should the Union? It is a dangerous symptom of centralization, cried Baldwin of Georgia; the "central States" wish to be the "vortex for everything," even matters of "a local nature." The national government, said Gerry of Massachusetts, had nothing to do with slavery in the States; it had only to refrain from giving direct sanction to the system. Others opposed this whole argument, declaring, with Langdon of New Hampshire, that Congress ought to have this power, since, as Dickinson tartly remarked, "The true question was, whether the national happiness would be promoted or impeded by the importation; and this question ought to be left to the national government, not to the states particularly interested."

Beside these arguments as to the right of the trade and the proper seat of authority over it, many arguments of general expediency were introduced. From an economic standpoint, for instance, General C.C. Pinckney of South Carolina "contended, that the importation of slaves would be for the interest of the whole Union. The more slaves, the more produce." Rutledge of the same State declared: "If the Northern States 61consult their interest, they will not oppose the increase of slaves, which will increase the commodities of which they will become the carriers." This sentiment found a more or less conscious echo in the words of Ellsworth of Connecticut, "What enriches a part enriches the whole." It was, moreover, broadly hinted that the zeal of Maryland and Virginia against the trade had an economic rather than a humanitarian motive, since they had slaves enough and to spare, and wished to sell them at a high price to South Carolina and Georgia, who needed more. In such case restrictions would unjustly discriminate against the latter States. The argument from history was barely touched upon. Only once was there an allusion to "the example of all the world" "in all ages" to justify slavery,7 and once came the counter declaration that "Greece and Rome were made unhappy by their slaves."8 On the other hand, the military weakness of slavery in the late war led to many arguments on that score. Luther Martin and George Mason dwelt on the danger of a servile class in war and insurrection; while Rutledge hotly replied that he "would readily exempt the other states from the obligation to protect the Southern against them;" and Ellsworth thought that the very danger would "become a motive to kind treatment." The desirability of keeping slavery out of the West was once mentioned as an argument against the trade: to this all seemed tacitly to agree.9

Throughout the debate it is manifest that the Convention had no desire really to enter upon a general slavery argument. The broader and more theoretic aspects of the question were but lightly touched upon here and there. Undoubtedly, most of the members would have much preferred not to raise the question at all; but, as it was raised, the differences of opinion were too manifest to be ignored, and the Convention, after its first perplexity, gradually and perhaps too willingly set itself to work to find some "middle ground" on which all parties could stand. The way to this compromise was pointed out by the South. The most radical pro-slavery arguments always ended with the opinion that "if the Southern States were let 62alone, they will probably of themselves stop importations."10 To be sure, General Pinckney admitted that, "candidly, he did not think South Carolina would stop her importations of slaves in any short time;" nevertheless, the Convention "observed," with Roger Sherman, "that the abolition of slavery seemed to be going on in the United States, and that the good sense of the several states would probably by degrees complete it." Economic forces were evoked to eke out moral motives: when the South had its full quota of slaves, like Virginia it too would abolish the trade; free labor was bound finally to drive out slave labor. Thus the chorus of "laissez-faire" increased; and compromise seemed at least in sight, when Connecticut cried, "Let the trade alone!" and Georgia denounced it as an "evil." Some few discordant notes were heard, as, for instance, when Wilson of Pennsylvania made the uncomforting remark, "If South Carolina and Georgia were themselves disposed to get rid of the importation of slaves in a short time, as had been suggested, they would never refuse to unite because the importation might be prohibited."

With the spirit of compromise in the air, it was not long before the general terms were clear. The slavery side was strongly intrenched, and had a clear and definite demand. The forces of freedom were, on the contrary, divided by important conflicts of interest, and animated by no very strong and decided anti-slavery spirit with settled aims. Under such circumstances, it was easy for the Convention to miss the opportunity for a really great compromise, and to descend to a scheme that savored unpleasantly of "log-rolling." The student of the situation will always have good cause to believe that a more sturdy and definite anti-slavery stand at this point might have changed history for the better.

34. The Special Committee and the "Bargain." Since the debate had, in the first place, arisen from a proposition to tax the importation of slaves, the yielding of this point by the South was the first move toward compromise. To all but the doctrinaires, who shrank from taxing men as property, the argument that the failure to tax slaves was equivalent to a 63bounty, was conclusive. With this point settled, Randolph voiced the general sentiment, when he declared that he "was for committing, in order that some middle ground might, if possible, be found." Finally, Gouverneur Morris discovered the "middle ground," in his suggestion that the whole subject be committed, "including the clauses relating to taxes on exports and to a navigation act. These things," said he, "may form a bargain among the Northern and Southern States." This was quickly assented to; and sections four and five, on slave-trade and capitation tax, were committed by a vote of 7 to 3,11 and section six, on navigation acts, by a vote of 9 to 2.12 All three clauses were referred to the following committee: Langdon of New Hampshire, King of Massachusetts, Johnson of Connecticut, Livingston of New Jersey, Clymer of Pennsylvania, Dickinson of Delaware, Martin of Maryland, Madison of Virginia, Williamson of North Carolina, General Pinckney of South Carolina, and Baldwin of Georgia.

The fullest account of the proceedings of this committee is given in Luther Martin's letter to his constituents, and is confirmed in its main particulars by similar reports of other delegates. Martin writes: "A committee of one member from each state was chosen by ballot, to take this part of the system under their consideration, and to endeavor to agree upon some report which should reconcile those states [i.e., South Carolina and Georgia]. To this committee also was referred the following proposition, which had been reported by the committee of detail, viz.: 'No navigation act shall be passed without the assent of two thirds of the members present in each house'—a proposition which the staple and commercial states were solicitous to retain, lest their commerce should be placed too much under the power of the Eastern States, but which these last States were as anxious to reject. This committee—of which also I had the honor to be a member—met, and took under their consideration the subjects committed to them. I found the Eastern States, notwithstanding their aversion to slavery, were very willing to indulge the Southern64 States at least with a temporary liberty to prosecute the slave trade, provided the Southern States would, in their turn, gratify them, by laying no restriction on navigation acts; and after a very little time, the committee, by a great majority, agreed on a report, by which the general government was to be prohibited from preventing the importation of slaves for a limited time, and the restrictive clause relative to navigation acts was to be omitted."13

That the "bargain" was soon made is proven by the fact that the committee reported the very next day, Friday, August 24, and that on Saturday the report was taken up. It was as follows: "Strike out so much of the fourth section as was referred to the committee, and insert 'The migration or importation of such persons as the several states, now existing, shall think proper to admit, shall not be prohibited by the legislature prior to the year 1800; but a tax or duty may be imposed on such migration or importation, at a rate not exceeding the average of the duties laid on imports.' The fifth section to remain as in the report. The sixth section to be stricken out."14

35. The Appeal to the Convention. The ensuing debate,15 which lasted only a part of the day, was evidently a sort of appeal to the House on the decisions of the committee. It throws light on the points of disagreement. General Pinckney first proposed to extend the slave-trading limit to 1808, and Gorham of Massachusetts seconded the motion. This brought a spirited protest from Madison: "Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the American character than to say nothing about it in the Constitution."16 There was, however, evidently another "bargain" here; for, without farther debate, the South and the East voted the extension, 7 to 4, only New Jersey, Pennsylvania, Delaware, and Virginia objecting. The ambiguous phraseology of the whole slave-trade section as reported did not pass without comment; Gouverneur Morris would have it read: "The importation of slaves into North Carolina, South 65Carolina, and Georgia, shall not be prohibited," etc.17 This emendation was, however, too painfully truthful for the doctrinaires, and was, amid a score of objections, withdrawn. The taxation clause also was manifestly too vague for practical use, and Baldwin of Georgia wished to amend it by inserting "common impost on articles not enumerated," in lieu of the "average" duty.18 This minor point gave rise to considerable argument: Sherman and Madison deprecated any such recognition of property in man as taxing would imply; Mason and Gorham argued that the tax restrained the trade; while King, Langdon, and General Pinckney contented themselves with the remark that this clause was "the price of the first part." Finally, it was unanimously agreed to make the duty "not exceeding ten dollars for each person."19

Southern interests now being safe, some Southern members attempted, a few days later, to annul the "bargain" by restoring the requirement of a two-thirds vote in navigation acts. Charles Pinckney made the motion, in an elaborate speech designed to show the conflicting commercial interests of the States; he declared that "The power of regulating commerce was a pure concession on the part of the Southern States."20 Martin and Williamson of North Carolina, Butler of South Carolina, and Mason of Virginia defended the proposition, insisting that it would be a dangerous concession on the part of the South to leave navigation acts to a mere majority vote. Sherman of Connecticut, Morris of Pennsylvania, and Spaight of North Carolina declared that the very diversity of interest was a security. Finally, by a vote of 7 to 4, Maryland, Virginia, North Carolina, and Georgia being in the minority, the Convention refused to consider the motion, and the recommendation of the committee passed.21

When, on September 10, the Convention was discussing the amendment clause of the Constitution, the ever-alert Rutledge, perceiving that the results of the laboriously66 settled "bargain" might be endangered, declared that he "never could agree to give a power by which the articles relating to slaves might be altered by the states not interested in that property."22 As a result, the clause finally adopted, September 15, had the proviso: "Provided, that no amendment which may be made prior to the year 1808 shall in any manner affect the 1st and 4th clauses in the 9th section of the 1st article."23

36. Settlement by the Convention. Thus, the slave-trade article of the Constitution stood finally as follows:—

"Article I. Section 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."

This settlement of the slavery question brought out distinct differences of moral attitude toward the institution, and yet differences far from hopeless. To be sure, the South apologized for slavery, the Middle States denounced it, and the East could only tolerate it from afar; and yet all three sections united in considering it a temporary institution, the corner-stone of which was the slave-trade. No one of them had ever seen a system of slavery without an active slave-trade; and there were probably few members of the Convention who did not believe that the foundations of slavery had been sapped merely by putting the abolition of the slave-trade in the hands of Congress twenty years hence. Here lay the danger; for when the North called slavery "temporary," she thought of twenty or thirty years, while the "temporary" period of the South was scarcely less than a century. Meantime, for at least a score of years, a policy of strict laissez-faire, so far as the general government was concerned, was to intervene. Instead of calling the whole moral energy of the people into action, so as gradually to crush this portentous evil, the Federal Convention lulled the nation to sleep by a "bargain," and left to the vacillating and unripe judgment of the States one of the most threatening of the social and political ills which they 67were so courageously seeking to remedy.

37. Reception of the Clause by the Nation. When the proposed Constitution was before the country, the slave-trade article came in for no small amount of condemnation and apology. In the pamphlets of the day it was much discussed. One of the points in Mason's "Letter of Objections" was that "the general legislature is restrained from prohibiting the further importation of slaves for twenty odd years, though such importations render the United States weaker, more vulnerable, and less capable of defence."24 To this Iredell replied, through the columns of the State Gazette of North Carolina: "If all the States had been willing to adopt this regulation [i.e., to prohibit the slave-trade], I should as an individual most heartily have approved of it, because even if the importation of slaves in fact rendered us stronger, less vulnerable and more capable of defence, I should rejoice in the prohibition of it, as putting an end to a trade which has already continued too long for the honor and humanity of those concerned in it. But as it was well known that South Carolina and Georgia thought a further continuance of such importations useful to them, and would not perhaps otherwise have agreed to the new constitution, those States which had been importing till they were satisfied, could not with decency have insisted upon their relinquishing advantages themselves had already enjoyed. Our situation makes it necessary to bear the evil as it is. It will be left to the future legislatures to allow such importations or not. If any, in violation of their clear conviction of the injustice of this trade, persist in pursuing it, this is a matter between God and their own consciences. The interests of humanity will, however, have gained something by the prohibition of this inhuman trade, though at a distance of twenty odd years."25

"Centinel," representing the Quaker sentiment of Pennsylvania, attacked the clause in his third letter, published in the Independent Gazetteer, or The Chronicle of Freedom, November 8, 1787: "We are told that the objects of this article are slaves, and that it is inserted to secure to the southern states the right of introducing negroes for twenty-one years to come, against the 68declared sense of the other states to put an end to an odious traffic in the human species, which is especially scandalous and inconsistent in a people, who have asserted their own liberty by the sword, and which dangerously enfeebles the districts wherein the laborers are bondsmen. The words, dark and ambiguous, such as no plain man of common sense would have used, are evidently chosen to conceal from Europe, that in this enlightened country, the practice of slavery has its advocates among men in the highest stations. When it is recollected that no poll tax can be imposed on five negroes, above what three whites shall be charged; when it is considered, that the imposts on the consumption of Carolina field negroes must be trifling, and the excise nothing, it is plain that the proportion of contributions, which can be expected from the southern states under the new constitution, will be unequal, and yet they are to be allowed to enfeeble themselves by the further importation of negroes till the year 1808. Has not the concurrence of the five southern states (in the convention) to the new system, been purchased too dearly by the rest?"26

Noah Webster's "Examination" (1787) addressed itself to such Quaker scruples: "But, say the enemies of slavery, negroes may be imported for twenty-one years. This exception is addressed to the quakers, and a very pitiful exception it is. The truth is, Congress cannot prohibit the importation of slaves during that period; but the laws against the importation into particular states, stand unrepealed. An immediate abolition of slavery would bring ruin upon the whites, and misery upon the blacks, in the southern states. The constitution has therefore wisely left each state to pursue its own measures, with respect to this article of legislation, during the period of twenty-one years."27

The following year the "Examination" of Tench Coxe said: "The temporary reservation of any particular matter must ever be deemed an admission that it should be done away. This appears to have been well understood. In addition to the arguments drawn from liberty, justice and religion, opinions against this practice [i.e., of slave-trading], founded in sound 69policy, have no doubt been urged. Regard was necessarily paid to the peculiar situation of our southern fellow-citizens; but they, on the other hand, have not been insensible of the delicate situation of our national character on this subject."28

From quite different motives Southern men defended this section. For instance, Dr. David Ramsay, a South Carolina member of the Convention, wrote in his "Address": "It is farther objected, that they have stipulated for a right to prohibit the importation of negroes after 21 years. On this subject observe, as they are bound to protect us from domestic violence, they think we ought not to increase our exposure to that evil, by an unlimited importation of slaves. Though Congress may forbid the importation of negroes after 21 years, it does not follow that they will. On the other hand, it is probable that they will not. The more rice we make, the more business will be for their shipping; their interest will therefore coincide with ours. Besides, we have other sources of supply—the importation of the ensuing 20 years, added to the natural increase of those we already have, and the influx from our northern neighbours who are desirous of getting rid of their slaves, will afford a sufficient number for cultivating all the lands in this state."29

Finally, The Federalist, No. 41, written by James Madison, commented as follows: "It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather, that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the General Government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the Federal Government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been 70given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren!

"Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another, as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none; but as specimens of the manner and spirit, in which some have thought fit to conduct their opposition to the proposed Government."30

38. Attitude of the State Conventions. The records of the proceedings in the various State conventions are exceedingly meagre. In nearly all of the few States where records exist there is found some opposition to the slave-trade clause. The opposition was seldom very pronounced or bitter; it rather took the form of regret, on the one hand that the Convention went so far, and on the other hand that it did not go farther. Probably, however, the Constitution was never in danger of rejection on account of this clause.

Extracts from a few of the speeches, pro and con, in various States will best illustrate the character of the arguments. In reply to some objections expressed in the Pennsylvania convention, Wilson said, December 3, 1787: "I consider this as laying the foundation for banishing slavery out of this country; and though the period is more distant than I could wish, yet it will produce the same kind, gradual change, which was pursued in Pennsylvania."31 Robert Barnwell declared in the South Carolina convention, January 17, 1788, that this clause "particularly pleased" him. "Congress," he said, "has guarantied this right for that space of time, and at its expiration may continue it as long as they please. This question then arises—What will their interest lead them to do? The Eastern States, as the honorable gentleman says, will become the carriers of America. It will, therefore, certainly be their interest to 71encourage exportation to as great an extent as possible; and if the quantum of our products will be diminished by the prohibition of negroes, I appeal to the belief of every man, whether he thinks those very carriers will themselves dam up the sources from whence their profit is derived. To think so is so contradictory to the general conduct of mankind, that I am of opinion, that, without we ourselves put a stop to them, the traffic for negroes will continue forever."32

In Massachusetts, January 30, 1788, General Heath said: "The gentlemen who have spoken have carried the matter rather too far on both sides. I apprehend that it is not in our power to do anything for or against those who are in slavery in the southern States.... Two questions naturally arise, if we ratify the Constitution: Shall we do anything by our act to hold the blacks in slavery? or shall we become partakers of other men's sins? I think neither of them. Each State is sovereign and independent to a certain degree, and they have a right, and will regulate their own internal affairs, as to themselves appears proper."33 Iredell said, in the North Carolina convention, July 26, 1788: "When the entire abolition of slavery takes place, it will be an event which must be pleasing to every generous mind, and every friend of human nature.... But as it is, this government is nobly distinguished above others by that very provision."34

Of the arguments against the clause, two made in the Massachusetts convention are typical. The Rev. Mr. Neal said, January 25, 1788, that "unless his objection [to this clause] was removed, he could not put his hand to the Constitution."35 General Thompson exclaimed, "Shall it be said, that after we have established our own independence and freedom, we make slaves of others?"36 Mason, in the Virginia convention, June 15, 1788, said: "As much as I value a union of all the states, I would not admit the Southern States into the Union unless they agree to the discontinuance of this disgraceful trade.... Yet they have not secured us the property of the 72slaves we have already. So that 'they have done what they ought not to have done, and have left undone what they ought to have done.'"37 Joshua Atherton, who led the opposition in the New Hampshire convention, said: "The idea that strikes those who are opposed to this clause so disagreeably and so forcibly is,—hereby it is conceived (if we ratify the Constitution) that we become consenters to and partakers in the sin and guilt of this abominable traffic, at least for a certain period, without any positive stipulation that it shall even then be brought to an end."38

In the South Carolina convention Lowndes, January 16, 1788, attacked the slave-trade clause. "Negroes," said he, "were our wealth, our only natural resource; yet behold how our kind friends in the north were determined soon to tie up our hands, and drain us of what we had! The Eastern States drew their means of subsistence, in a great measure, from their shipping; and, on that head, they had been particularly careful not to allow of any burdens.... Why, then, call this a reciprocal bargain, which took all from one party, to bestow it on the other!"39

In spite of this discussion in the different States, only one State, Rhode Island, went so far as to propose an amendment directing Congress to "promote and establish such laws and regulations as may effectually prevent the importation of slaves of every description, into the United States."40

39. Acceptance of the Policy. As in the Federal Convention, so in the State conventions, it is noticeable that the compromise was accepted by the various States from widely different motives.41 Nevertheless, these motives were not fixed and unchangeable, and there was still discernible a certain underlying 73agreement in the dislike of slavery. One cannot help thinking that if the devastation of the late war had not left an extraordinary demand for slaves in the South,—if, for instance, there had been in 1787 the same plethora in the slave-market as in 1774,—the future history of the country would have been far different. As it was, the twenty-one years of laissez-faire were confirmed by the States, and the nation entered upon the constitutional period with the slave-trade legal in three States,42 and with a feeling of quiescence toward it in the rest of the Union.

74

Chapter VII

TOUSSAINT L'OUVERTURE AND ANTI-SLAVERY EFFORT, 1787–1806.

40. Influence of the Haytian Revolution. The rôle which the great Negro Toussaint, called L'Ouverture, played in the history of the United States has seldom been fully appreciated. Representing the age of revolution in America, he rose to leadership through a bloody terror, which contrived a Negro "problem" for the Western Hemisphere, intensified and defined the anti-slavery movement, became one of the causes, and probably the prime one, which led Napoleon to sell Louisiana for a song, and finally, through the interworking of all these effects, rendered more certain the final prohibition of the slave-trade by the United States in 1807.

From the time of the reorganization of the Pennsylvania Abolition Society, in 1787, anti-slavery sentiment became active. New York, New Jersey, Rhode Island, Delaware, Maryland, and Virginia had strong organizations, and a national convention was held in 1794. The terrible upheaval in the West Indies, beginning in 1791, furnished this rising movement with an irresistible argument. A wave of horror and fear swept over the South, which even the powerful slave-traders of Georgia did not dare withstand; the Middle States saw their worst dreams realized, and the mercenary trade interests 75of the East lost control of the New England conscience.

41. Legislation of the Southern States. In a few years the growing sentiment had crystallized into legislation. The Southern States took immediate measures to close their ports, first against West India Negroes, finally against all slaves. Georgia, who had had legal slavery only from 1755, and had since passed no restrictive legislation, felt compelled in 1793[1] to stop the entry of free Negroes, and in 17982 to prohibit, under heavy penalties, the importation of all slaves. This provision was placed in the Constitution of the State, and, although miserably enforced, was never repealed.

South Carolina was the first Southern State in which the exigencies of a great staple crop rendered the rapid consumption of slaves more profitable than their proper maintenance. Alternating, therefore, between a plethora and a dearth of Negroes, she prohibited the slave-trade only for short periods. In 17883 she had forbidden the trade for five years, and in 1792,4 being peculiarly exposed to the West Indian insurrection, she quickly found it "inexpedient" to allow Negroes "from Africa, the West India Islands, or other place beyond sea" to enter for two years. This act continued to be extended, although with lessening penalties, until 1803.5 The home demand in view of the probable stoppage of the trade in 1808, the speculative chances of the new Louisiana Territory trade, and the large already existing illicit traffic combined in that year to cause the passage of an act, December 17, reopening the African slave-trade, although still carefully excluding "West India" Negroes.6 This action profoundly stirred the Union, aroused anti-slavery sentiment, led to a concerted76 movement for a constitutional amendment, and, failing in this, to an irresistible demand for a national prohibitory act at the earliest constitutional moment.

North Carolina had repealed her prohibitory duty act in 1790,7 but in 1794 she passed an "Act to prevent further importation and bringing of slaves," etc.8 Even the body-servants of West India immigrants and, naturally, all free Negroes, were eventually prohibited.9

42. Legislation of the Border States. The Border States, Virginia and Maryland, strengthened their non-importation laws, Virginia freeing illegally imported Negroes,10 and Maryland prohibiting even the interstate trade.11 The Middle States took action chiefly in the final abolition of slavery within their borders, and the prevention of the fitting out of slaving vessels in their ports. Delaware declared, in her Act of 1789, that "it is inconsistent with that spirit of general liberty which pervades the constitution of this state, that vessels should be fitted out, or equipped, in any of the ports thereof, for the purpose of receiving and transporting the natives of Africa to places where they are held in slavery,"12 and forbade such a practice under penalty of £500 for each person so engaged. The Pennsylvania Act of 178813 had similar provisions, with a penalty of £1000; and New Jersey followed with an act in 1798.14

43. Legislation of the Eastern States. In the Eastern States, where slavery as an institution was already nearly defunct, action was aimed toward stopping the notorious participation of citizens in the slave-trade outside the State. The prime movers were the Rhode Island Quakers. Having early 77secured a law against the traffic in their own State, they turned their attention to others. Through their remonstrances Connecticut, in 1788,15 prohibited participation in the trade by a fine of £500 on the vessel, £50 on each slave, and loss of insurance; this act was strengthened in 1792,16 the year after the Haytian revolt. Massachusetts, after many fruitless attempts, finally took advantage of an unusually bold case of kidnapping, and passed a similar act in 1788.17 "This," says Belknap, "was the utmost which could be done by our legislatures; we still have to regret the impossibility of making a law here, which shall restrain our citizens from carrying on this trade in foreign bottoms, and from committing the crimes which this act prohibits, in foreign countries, as it is said some of them have done since the enacting of these laws."18

Thus it is seen how, spurred by the tragedy in the West Indies, the United States succeeded by State action in prohibiting the slave-trade from 1798 to 1803, in furthering the cause of abolition, and in preventing the fitting out of slave-trade expeditions in United States ports. The country had good cause to congratulate itself. The national government hastened to supplement State action as far as possible, and the prophecies of the more sanguine Revolutionary fathers seemed about to be realized, when the ill-considered act of South Carolina showed the weakness of the constitutional compromise.

44. First Debate in Congress, 1789. The attention of the national government was early directed to slavery and the trade by the rise, in the first Congress, of the question of taxing slaves imported. During the debate on the duty bill introduced by Clymer's committee, Parker of Virginia moved, May 13, 1789, to lay a tax of ten dollars per capita on slaves imported. He plainly stated that the tax was designed to check the trade, and that he was "sorry that the Constitution prevented Congress from prohibiting the importation altogether." The proposal was evidently unwelcome, and caused an extended debate.19 Smith of South Carolina wanted 78to postpone a matter so "big with the most serious consequences to the State he represented." Roger Sherman of Connecticut "could not reconcile himself to the insertion of human beings as an article of duty, among goods, wares, and merchandise." Jackson of Georgia argued against any restriction, and thought such States as Virginia "ought to let their neighbors get supplied, before they imposed such a burden upon the importation." Tucker of South Carolina declared it "unfair to bring in such an important subject at a time when debate was almost precluded," and denied the right of Congress to "consider whether the importation of slaves is proper or not."

Mr. Parker was evidently somewhat abashed by this onslaught of friend and foe, but he "had ventured to introduce the subject after full deliberation, and did not like to withdraw it." He desired Congress, "if possible," to "wipe off the stigma under which America labored." This brought Jackson of Georgia again to his feet. He believed, in spite of the "fashion of the day," that the Negroes were better off as slaves than as freedmen, and that, as the tax was partial, "it would be the most odious tax Congress could impose." Such sentiments were a distinct advance in pro-slavery doctrine, and called for a protest from Madison of Virginia. He thought the discussion proper, denied the partiality of the tax, and declared that, according to the spirit of the Constitution and his own desire, it was to be hoped "that, by expressing a national disapprobation of this trade, we may destroy it, and save ourselves from reproaches, and our posterity the imbecility ever attendant on a country filled with slaves." Finally, to Burke of South Carolina, who thought "the gentlemen were contending for nothing," Madison sharply rejoined, "If we contend for nothing, the gentlemen who are opposed to us do not contend for a great deal."

It now became clear that Congress had been whirled into a discussion of too delicate and lengthy a nature to allow its further prolongation. Compromising councils prevailed; and it was agreed that the present proposition should be withdrawn and a separate bill brought in. This bill was, however,79 at the next session dexterously postponed "until the next session of Congress."20

45. Second Debate in Congress, 1790. It is doubtful if Congress of its own initiative would soon have resurrected the matter, had not a new anti-slavery weapon appeared in the shape of urgent petitions from abolition societies. The first petition, presented February 11, 1790,21 was from the same interstate Yearly Meeting of Friends which had formerly petitioned the Confederation Congress.22 They urged Congress to inquire "whether, notwithstanding such seeming impediments, it be not in reality within your power to exercise justice and mercy, which, if adhered to, we cannot doubt, must produce the abolition of the slave trade," etc. Another Quaker petition from New York was also presented,23 and both were about to be referred, when Smith of South Carolina objected, and precipitated a sharp debate.24 This debate had a distinctly different tone from that of the preceding one, and represents another step in pro-slavery doctrine. The key-note of these utterances was struck by Stone of Maryland, who "feared that if Congress took any measures indicative of an intention to interfere with the kind of property alluded to, it would sink it in value very considerably, and might be injurious to a great number of the citizens, particularly in the Southern States. He thought the subject was of general concern, and that the petitioners had no more right to interfere with it than any other members of the community. It was an unfortunate circumstance, that it was the disposition of religious sects to imagine they understood the rights of human nature better than all the world besides."

In vain did men like Madison disclaim all thought of unconstitutional "interference," and express only a desire to see "If anything is within the Federal authority to restrain such violation of the rights of nations and of mankind, as is supposed to be practised in some parts of the United States." A storm of disapproval from Southern members met such sentiments. 80"The rights of the Southern States ought not to be threatened," said Burke of South Carolina. "Any extraordinary attention of Congress to this petition," averred Jackson of Georgia, would put slave property "in jeopardy," and "evince to the people a disposition towards a total emancipation." Smith and Tucker of South Carolina declared that the request asked for "unconstitutional" measures. Gerry of Massachusetts, Hartley of Pennsylvania, and Lawrence of New York rather mildly defended the petitioners; but after considerable further debate the matter was laid on the table.

The very next day, however, the laid ghost walked again in the shape of another petition from the "Pennsylvania Society for promoting the Abolition of Slavery," signed by its venerable president, Benjamin Franklin. This petition asked Congress to "step to the very verge of the power vested in you for discouraging every species of traffic in the persons of our fellow-men."25 Hartley of Pennsylvania called up the memorial of the preceding day, and it was read a second time and a motion for commitment made. Plain words now came from Tucker of South Carolina. "The petition," he said, "contained an unconstitutional request." The commitment would alarm the South. These petitions were "mischievous" attempts to imbue the slaves with false hopes. The South would not submit to a general emancipation without "civil war." The commitment would "blow the trumpet of sedition in the Southern States," echoed his colleague, Burke. The Pennsylvania men spoke just as boldly. Scott declared the petition constitutional, and was sorry that the Constitution did not interdict this "most abominable" traffic. "Perhaps, in our Legislative capacity," he said, "we can go no further than to impose a duty of ten dollars, but I do not know how far I might go if I was one of the Judges of the United States, and those people were to come before me and claim their emancipation; but I am sure I would go as far as I could." Jackson of Georgia rejoined in true Southern spirit, boldly defending slavery in the light of religion and history, and asking if it was "good policy to bring forward a business at this moment likely to light up the flame of civil discord; for the people of the 81Southern States will resist one tyranny as soon as another. The other parts of the Continent may bear them down by force of arms, but they will never suffer themselves to be divested of their property without a struggle. The gentleman says, if he was a Federal Judge, he does not know to what length he would go in emancipating these people; but I believe his judgment would be of short duration in Georgia, perhaps even the existence of such a Judge might be in danger." Baldwin, his New-England-born colleague, urged moderation by reciting the difficulty with which the constitutional compromise was reached, and declaring, "the moment we go to jostle on that ground, I fear we shall feel it tremble under our feet." Lawrence of New York wanted to commit the memorials, in order to see how far Congress might constitutionally interfere. Smith of South Carolina, in a long speech, said that his constituents entered the Union "from political, not from moral motives," and that "we look upon this measure as an attack upon the palladium of the property of our country." Page of Virginia, although a slave owner, urged commitment, and Madison again maintained the appropriateness of the request, and suggested that "regulations might be made in relation to the introduction of them [i.e., slaves] into the new States to be formed out of the Western Territory." Even conservative Gerry of Massachusetts declared, with regard to the whole trade, that the fact that "we have a right to regulate this business, is as clear as that we have any rights whatever."

Finally, by a vote of 43 to 11, the memorials were committed, the South Carolina and Georgia delegations, Bland and Coles of Virginia, Stone of Maryland, and Sylvester of New York voting in the negative.26 A committee, consisting of Foster of New Hampshire, Huntington of Connecticut, Gerry of Massachusetts, Lawrence of New York, Sinnickson of New Jersey, Hartley of Pennsylvania, and Parker of Virginia, was charged with the matter, and reported Friday, March 5. The absence of Southern members on this committee compelled it to make this report a sort of official manifesto on the aims of Northern anti-slavery politics. As such, it was sure to meet82 with vehement opposition in the House, even though conservatively worded. Such proved to be the fact when the committee reported. The onslaught to "negative the whole report" was prolonged and bitter, the debate pro and con lasting several days.1

46. The Declaration of Powers, 1790. The result is best seen by comparing the original report with the report of the Committee of the Whole, adopted by a vote of 29 to 25 Monday, March 23, 1790:28—

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,"3184 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 t85hat 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 86that 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 matter87 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, 88stating 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 opposition46 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 89the 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 90long 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 91bill 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 92from 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 93slaves 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 of94 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 Maryland80 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 taxati95on 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 96March 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.

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Chapter VIII

THE PERIOD OF ATTEMPTED SUPPRESSION. 1807–1825.

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 98unoffending 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.

99

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.

100

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 101Africans 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 102continue 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 103in 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 104of 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:—

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 105commit," 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 106cannot 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:—

58. The Third Question: How shall the Interstate Coastwise Slave-Trade be protected? The first proposition was to prohibit the coastwise slave-trade altogether,49 but an amendment reported to the House allowed it "in any vessel 107or species of craft whatever." It is probable that the first proposition would have prevailed, had it not been for the vehement opposition of Randolph and Early.50 They probably foresaw the value which Virginia would derive from this trade in the future, and consequently Randolph violently declared that if the amendment did not prevail, "the Southern people would set the law at defiance. He would begin the example." He maintained that by the first proposition "the proprietor of sacred and chartered rights is prevented the Constitutional use of his property."51 The Conference Committee finally arranged a compromise, forbidding the coastwise trade for purposes of sale in vessels under forty tons.52 This did not suit Early, who declared that the law with this provision "would not prevent the introduction of a single slave."53 Randolph, too, would "rather lose the bill, he had rather lose all the bills of the session, he had rather lose every bill passed since the establishment of the Government, than agree to the provision contained in this slave bill."54 He predicted the severance of the slave and the free States, if disunion should ever come. Congress was, however, weary with the dragging of the bill, and it passed both Houses with the compromise provision. Randolph was so dissatisfied that he had a committee appointed the next day, and introduced an amendatory bill. Both this bill and another similar one, introduced at the next session, failed of consideration.55

59. Legislative History of the Bill.56 On December 12, 1805, Senator Stephen R. Bradley of Vermont gave notice of a bill to prohibit the introduction of slaves after 1808. By a vote of 18 to 9 leave was given, and the bill read a first time 108on the 17th. On the 18th, however, it was postponed until "the first Monday in December, 1806." The presidential message mentioning the matter, Senator Bradley, December 3, 1806, gave notice of a similar bill, which was brought in on the 8th, and on the 9th referred to a committee consisting of Bradley, Stone, Giles, Gaillard, and Baldwin. This bill passed, after some consideration, January 27. It provided, among other things, that violations of the act should be felony, punishable with death, and forbade the interstate coast-trade.57

Meantime, in the House, Mr. Bidwell of Massachusetts had proposed, February 4, 1806, as an amendment to a bill taxing slaves imported, that importation after December 31, 1807, be prohibited, on pain of fine and imprisonment and forfeiture of ship.58 This was rejected by a vote of 86 to 17. On December 3, 1806, the House, in appointing committees on the message, "Ordered, That Mr. Early, Mr. Thomas M. Randolph, Mr. John Campbell, Mr. Kenan, Mr. Cook, Mr. Kelly, and Mr. Van Rensselaer be appointed a committee" on the slave-trade. This committee reported a bill on the 15th, which was considered, but finally, December 18, recommitted. It was reported in an amended form on the 19th, and amended in Committee of the Whole so as to make violation a misdemeanor punishable by fine and imprisonment, instead of a felony punishable by death.59 A struggle over the disposal of the cargo then ensued. A motion by Bidwell to except the cargo from forfeiture was lost, 77 to 39. Another motion by Bidwell may be considered the crucial vote on the whole bill: it was an amendment to the forfeiture clause, and read, "Provided, that no person shall be sold as a slave by virtue of this act."60 This resulted in a tie vote, 60 to 60; but the casting vote of109 the Speaker, Macon of North Carolina, defeated it. New England voted solidly in favor of it, the Middle States stood 4 for and 2 against it, and the six Southern States stood solid against it. On January 8 the bill went again to a select committee of seventeen, by a vote of 76 to 46. The bill was reported back amended January 20, and on the 28th the Senate bill was also presented to the House. On the 9th, 10th, and 11th of February both bills were considered in Committee of the Whole, and the Senate bill finally replaced the House bill, after several amendments had been made.61 The bill was then passed, by a vote of 113 to 5.62 The Senate agreed to the amendments, including that substituting fine and imprisonment for the death penalty, but asked for a conference on the provision which left the interstate coast-trade free. The six conferees succeeded in bringing the Houses to agree, by limiting the trade to vessels over forty tons and requiring registry of the slaves.63

110The following diagram shows in graphic form the legislative history of the act:—64

This bill received the approval of President Jefferson, March 2, 1807, and became thus the "Act to prohibit the importation of Slaves into any port or place within the jurisdiction of the United States, from and after the first day 111of January, in the year of our Lord one thousand eight hundred and eight."65 The debates in the Senate were not reported. Those in the House were prolonged and bitter, and hinged especially on the disposal of the slaves, the punishment of offenders, and the coast-trade. Men were continually changing their votes, and the bill see-sawed backward and forward, in committee and out, until the House was thoroughly worn out. On the whole, the strong anti-slavery men, like Bidwell and Sloan, were outgeneraled by Southerners, like Early and Williams; and, considering the immense moral backing of the anti-slavery party from the Revolutionary fathers down, the bill of 1807 can hardly be regarded as a great anti-slavery victory.

60. Enforcement of the Act. The period so confidently looked forward to by the constitutional fathers had at last arrived; the slave-trade was prohibited, and much oratory and poetry were expended in celebration of the event. In the face of this, let us see how the Act of 1807 was enforced and what it really accomplished. It is noticeable, in the first place, that there was no especial set of machinery provided for the enforcement of this act. The work fell first to the Secretary of the Treasury, as head of the customs collection. Then, through the activity of cruisers, the Secretary of the Navy gradually came to have oversight, and eventually the whole matter was lodged with him, although the Departments of State and War were more or less active on different occasions. Later, at the advent of the Lincoln government, the Department of the Interior was charged with the enforcement of the slave-trade laws. It would indeed be surprising if, amid so much uncertainty and shifting of responsibility, the law were not poorly enforced. Poor enforcement, moreover, in the years 1808 to 1820 meant far more than at almost any other period; for these years were, 112all over the European world, a time of stirring economic change, and the set which forces might then take would in a later period be unchangeable without a cataclysm. Perhaps from 1808 to 1814, in the midst of agitation and war, there was some excuse for carelessness. From 1814 on, however, no such palliation existed, and the law was probably enforced as the people who made it wished it enforced.

Most of the Southern States rather tardily passed the necessary supplementary acts disposing of illegally imported Africans. A few appear not to have passed any. Some of these laws, like the Alabama-Mississippi Territory Act of 1815,66 directed such Negroes to be "sold by the proper officer of the court, to the highest bidder, at public auction, for ready money." One-half the proceeds went to the informer or to the collector of customs, the other half to the public treasury. Other acts, like that of North Carolina in 1816,67 directed the Negroes to "be sold and disposed of for the use of the state." One-fifth of the proceeds went to the informer. The Georgia Act of 181768 directed that the slaves be either sold or given to the Colonization Society for transportation, providing the society reimburse the State for all expense incurred, and pay for the transportation. In this manner, machinery of somewhat clumsy build and varying pattern was provided for the carrying out of the national act.

61. Evidence of the Continuance of the Trade. Undoubtedly, the Act of 1807 came very near being a dead letter. The testimony supporting this view is voluminous. It consists of presidential messages, reports of cabinet officers, letters of collectors of revenue, letters of district attorneys, reports of committees of Congress, reports of naval commanders, statements made on the floor of Congress, the testimony of eye-witnesses, and the complaints of home and foreign anti-slavery societies.

"When I was young," writes Mr. Fowler of Connecticut, "the slave-trade was still carried on, by Connecticut shipmasters and Merchant adventurers, for the supply of southern ports. This trade was carried on by the consent o113f the Southern States, under the provisions of the Federal Constitution, until 1808, and, after that time, clandestinely. There was a good deal of conversation on the subject, in private circles." Other States were said to be even more involved than Connecticut.69 The African Society of London estimated that, down to 1816, fifteen of the sixty thousand slaves annually taken from Africa were shipped by Americans. "Notwithstanding the prohibitory act of America, which was passed in 1807, ships bearing the American flag continued to trade for slaves until 1809, when, in consequence of a decision in the English prize appeal courts, which rendered American slave ships liable to capture and condemnation, that flag suddenly disappeared from the coast. Its place was almost instantaneously supplied by the Spanish flag, which, with one or two exceptions, was now seen for the first time on the African coast, engaged in covering the slave trade. This sudden substitution of the Spanish for the American flag seemed to confirm what was established in a variety of instances by more direct testimony, that the slave trade, which now, for the first time, assumed a Spanish dress, was in reality only the trade of other nations in disguise."70

So notorious did the participation of Americans in the traffic become, that President Madison informed Congress in his message, December 5, 1810, that "it appears that American citizens are instrumental in carrying on a traffic in enslaved Africans, equally in violation of the laws of humanity, and in defiance of those of their own country. The same just and benevolent motives which produced the interdiction in force against this criminal conduct, will doubtless be felt by Congress, in devising further means of suppressing the evil."71 The Secretary of the Navy wrote the same year to Charleston, South Carolina: "I hear, not without great concern, that the law prohibiting the importation of slaves has been violated in frequent instances, near St. Mary's."72 Testimony as to violations of the law and 114suggestions for improving it also came in from district attorneys.73

The method of introducing Negroes was simple. A slave smuggler says: "After resting a few days at St. Augustine, ... I agreed to accompany Diego on a land trip through the United States, where a kaffle of negroes was to precede us, for whose disposal the shrewd Portuguese had already made arrangements with my uncle's consignees. I soon learned how readily, and at what profits, the Florida negroes were sold into the neighboring American States. The kaffle, under charge of negro drivers, was to strike up the Escambia River, and thence cross the boundary into Georgia, where some of our wild Africans were mixed with various squads of native blacks, and driven inland, till sold off, singly or by couples, on the road. At this period [1812], the United States had declared the African slave trade illegal, and passed stringent laws to prevent the importation of negroes; yet the Spanish possessions were thriving on this inland exchange of negroes and mulattoes; Florida was a sort of nursery for slave-breeders, and many American citizens grew rich by trafficking in Guinea negroes, and smuggling them continually, in small parties, through the southern United States. At the time I mention, the business was a lively one, owing to the war then going on between the States and England, and the unsettled condition of affairs on the border."74

The Spanish flag continued to cover American slave-traders. The rapid rise of privateering during the war was not caused solely by patriotic motives; for many armed ships fitted out in the United States obtained a thin Spanish disguise at Havana, and transported thousands of slaves to Brazil and the West Indies. Sometimes all disguise was thrown aside, and the American flag appeared on the slave coast, as in the cases of the "Paz,"75 the "Rebecca," the "Rosa"76 (formerly the privateer 115"Commodore Perry"), the "Dorset" of Baltimore,77 and the "Saucy Jack."78 Governor McCarthy of Sierra Leone wrote, in 1817: "The slave trade is carried on most vigorously by the Spaniards, Portuguese, Americans and French. I have had it affirmed from several quarters, and do believe it to be a fact, that there is a greater number of vessels employed in that traffic than at any former period."79

62. Apathy of the Federal Government. The United States cruisers succeeded now and then in capturing a slaver, like the "Eugene," which was taken when within four miles of the New Orleans bar.80 President Madison again, in 1816, urged Congress to act on account of the "violations and evasions which, it is suggested, are chargeable on unworthy citizens, who mingle in the slave trade under foreign flags, and with foreign ports; and by collusive importations of slaves into the United States, through adjoining ports and territories."81 The executive was continually in receipt of ample evidence of this illicit trade and of the helplessness of officers of the law. In 1817 it was reported to the Secretary of the Navy that most of the goods carried to Galveston were brought into the United States; "the more valuable, and the slaves are smuggled in through the numerous inlets to the westward, where the people are but too much disposed to render them every possible assistance. Several hundred slaves are now at Galveston, and persons have gone from New-Orleans to purchase them. Every exertion will be made to intercept them, 116but I have little hopes of success."82 Similar letters from naval officers and collectors showed that a system of slave piracy had arisen since the war, and that at Galveston there was an establishment of organized brigands, who did not go to the trouble of sailing to Africa for their slaves, but simply captured slavers and sold their cargoes into the United States. This Galveston nest had, in 1817, eleven armed vessels to prosecute the work, and "the most shameful violations of the slave act, as well as our revenue laws, continue to be practised."83 Cargoes of as many as three hundred slaves were arriving in Texas. All this took place under Aury, the buccaneer governor; and when he removed to Amelia Island in 1817 with the McGregor raid, the illicit traffic in slaves, which had been going on there for years,84 took an impulse that brought it even to the somewhat deaf ears of Collector Bullock. He reported, May 22, 1817: "I have just received information from a source on which I can implicitly rely, that it has already become the practice to introduce into the state of Georgia, across the St. Mary's River, from Amelia Island, East Florida, Africans, who have been carried into the Port of Fernandina, subsequent to the capture of it by the Patriot army now in possession of it ...; were the legislature to pass an act giving compensation in some manner to informers, it would have a tendency in a great degree to prevent the practice; as the thing now is, no citizen will take the trouble of searching for and detecting the slaves. I further understand, that the evil will not be confined altogether to Africans, but will be extended to the worst class of West India slaves."85

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Undoubtedly, the injury done by these pirates to the regular slave-trading interests was largely instrumental in exterminating them. Late in 1817 United States troops seized Amelia Island, and President Monroe felicitated Congress and the country upon escaping the "annoyance and injury" of this illicit trade.86 The trade, however, seems to have continued, as is shown by such letters as the following, written three and a half months later:—

This "approbation" failed to come to the zealous collector, and on the 5th of July he wrote that, "not being favored with 118a reply," he has been obliged to deliver over to the governor's agents ninety-one illegally imported Negroes.88 Reports from other districts corroborate this testimony. The collector at Mobile writes of strange proceedings on the part of the courts.89 General D.B. Mitchell, ex-governor of Georgia and United States Indian agent, after an investigation in 1821 by Attorney-General Wirt, was found "guilty of having prostituted his power, as agent for Indian affairs at the Creek agency, to the purpose of aiding and assisting in a conscious breach of the act of Congress of 1807, in prohibition of the slave trade—and this from mercenary motives."90 The indefatigable Collector Chew of New Orleans wrote to Washington that, "to put a stop to that traffic, a naval force suitable to those waters is indispensable," and that "vast numbers of slaves will be introduced to an alarming extent, unless prompt and effectual measures are adopted by the general government."91 Other collectors continually reported infractions, complaining that they could get no assistance from the citizens,92 or plaintively asking the services of "one small cutter."93

Meantime, what was the response of the government to such representations, and what efforts were made to enforce the act? A few unsystematic and spasmodic attempts are recorded. In 1811 some special instructions were sent out,94 and the President was authorized to seize Amelia Island.95 Then came the war; and as late as November 15, 1818, in spite of the complaints of collectors, we find no revenue cutter on the Gulf coast.96 During the years 1817 and 181897 some cruisers went there irregularly, but they were too large to be effective; 119and the partial suppression of the Amelia Island pirates was all that was accomplished. On the whole, the efforts of the government lacked plan, energy, and often sincerity. Some captures of slavers were made;98 but, as the collector at Mobile wrote, anent certain cases, "this was owing rather to accident, than any well-timed arrangement." He adds: "from the Chandalier Islands to the Perdido river, including the coast, and numerous other islands, we have only a small boat, with four men and an inspector, to oppose to the whole confederacy of smugglers and pirates."99

To cap the climax, the government officials were so negligent that Secretary Crawford, in 1820, confessed to Congress that "it appears, from an examination of the records of this office, that no particular instructions have ever been given, by the Secretary of the Treasury, under the original or supplementary acts prohibiting the introduction of slaves into the United States."100 Beside this inactivity, the government was criminally negligent in not prosecuting and punishing offenders when captured. Urgent appeals for instruction from prosecuting attorneys were too often received in official silence; complaints as to the violation of law by State officers went unheeded;101 informers were unprotected and sometimes driven from home.102 Indeed, the most severe comment on the whole period is the report, January 7, 1819, of the Register of the Treasury, who, after the wholesale and open violation of the Act of 1807, reported, in response to a request from the House, "that it doth not appear, from an examination of the records of this office, and particularly of the accounts (to the date of their last settlement) of the collectors of the customs, and of the several marshals of the 120United States, that any forfeitures had been incurred under the said act."103

63. Typical Cases. At this date (January 7, 1819), however, certain cases were stated to be pending, a history of which will fitly conclude this discussion. In 1818 three American schooners sailed from the United States to Havana; on June 2 they started back with cargoes aggregating one hundred and seven slaves. The schooner "Constitution" was captured by one of Andrew Jackson's officers under the guns of Fort Barancas. The "Louisa" and "Marino" were captured by Lieutenant McKeever of the United States Navy. The three vessels were duly proceeded against at Mobile, and the case began slowly to drag along. The slaves, instead of being put under the care of the zealous marshal of the district, were placed in the hands of three bondsmen, friends of the judge. The marshal notified the government of this irregularity, but apparently received no answer. In 1822 the three vessels were condemned as forfeited, but the court "reserved" for future order the distribution of the slaves. Nothing whatever either then or later was done to the slave-traders themselves. The owners of the ships promptly appealed to the Supreme Court of the United States, and that tribunal, in 1824, condemned the three vessels and the slaves on two of them.104 These slaves, considerably reduced in number "from various causes," were sold at auction for the benefit of the State, in spite of the Act of 1819. Meantime, before the decision of the Supreme Court, the judge of the Supreme Court of West Florida had awarded to certain alleged Spanish claimants of the slaves indemnity for nearly the whole number seized, at the price of $650 per head, and the Secretary of the Treasury had actually paid the claim.105 In 1826 Lieutenant McKeever urgently petitions Congress for his prize-money of $4,415.15, which he has not yet121 received.106 The "Constitution" was for some inexplicable reason released from bond, and the whole case fades in a very thick cloud of official mist. In 1831 Congress sought to inquire into the final disposition of the slaves. The information given was never printed; but as late as 1836 a certain Calvin Mickle petitions Congress for reimbursement for the slaves sold, for their hire, for their natural increase, for expenses incurred, and for damages.107

64. The Supplementary Acts, 1818–1820. To remedy the obvious defects of the Act of 1807 two courses were possible: one, to minimize the crime of transportation, and, by encouraging informers, to concentrate efforts against the buying of smuggled slaves; the other, to make the crime of transportation so great that no slaves would be imported. The Act of 1818 tried the first method; that of 1819, the second.108 The latter was obviously the more upright and logical, and the only method deserving thought even in 1807; but the Act of 1818 was the natural descendant of that series of compromises which began in the Constitutional Convention, and which, instead of postponing the settlement of critical questions to more favorable times, rather aggravated and complicated them.

The immediate cause of the Act of 1818 was the Amelia Island scandal.113 Committees in both Houses reported bills, but that of the Senate finally passed. There does not appear to 122have been very much debate.110 The sale of Africans for the benefit of the informer and of the United States was strongly urged "as the only means of executing the laws against the slave trade as experience had fully demonstrated since the origin of the prohibition."111 This proposition was naturally opposed as "inconsistent with the principles of our Government, and calculated to throw as wide open the door to the importation of slaves as it was before the existing prohibition."112 The act, which became a law April 20, 1818,109 was a poorly constructed compromise, which virtually acknowledged the failure of efforts to control the trade, and sought to remedy defects by pitting cupidity against cupidity, informer against thief. One-half of all forfeitures and fines were to go to the informer, and penalties for violation were changed as follows:—

For equipping a slaver, instead of a fine of $20,000, a fine of $1000 to $5000 and imprisonment from 3 to 7 years.

For transporting Negroes, instead of a fine of $5000 and forfeiture of ship and Negroes, a fine of $1000 to $5000 and imprisonment from 3 to 7 years.

For actual importation, instead of a fine of $1000 to $10,000 and imprisonment from 5 to 10 years, a fine of $1000 to $10,000, and 123imprisonment from 3 to 7 years.

For knowingly buying illegally imported Negroes, instead of a fine of $800 for each Negro and forfeiture, a fine of $1000 for each Negro.

The burden of proof was laid on the defendant, to the extent that he must prove that the slave in question had been imported at least five years before the prosecution. The slaves were still left to the disposal of the States.

This statute was, of course, a failure from the start,114 and at the very next session Congress took steps to revise it. A bill was reported in the House, January 13, 1819, but it was not discussed till March.115 It finally passed, after "much debate."116 The Senate dropped its own bill, and, after striking out the provision for the death penalty, passed the bill as it came from the House.117 The House acquiesced, and the bill became a law, March 3, 1819,118 in the midst of the Missouri trouble. This act directed the President to use armed cruisers on the coasts of the United States and Africa to suppress the slave-trade; one-half the proceeds of the condemned ship were to go to the captors as bounty, provided the Africans were safely lodged with a United States marshal and the crew with the civil authorities. These provisions were seriously marred by a proviso which Butler of Louisiana, had inserted, with a "due regard for the interests of the State which he represented," viz., that a captured slaver must always be returned to the port whence she 124sailed.119 This, of course, secured decided advantages to Southern slave-traders. The most radical provision of the act was that which directed the President to "make such regulations and arrangements as he may deem expedient for the safe keeping, support, and removal beyond the limits of the United States, of all such negroes, mulattoes, or persons of colour, as may be so delivered and brought within their jurisdiction;" and to appoint an agent in Africa to receive such Negroes.120 Finally, an appropriation of $100,000 was made to enforce the act.121 This act was in some measure due to the new colonization movement; and the return of Africans recaptured was a distinct recognition of its efforts, and the real foundation of Liberia.

To render this straightforward act effective, it was necessary to add but one measure, and that was a penalty commensurate with the crime of slave stealing. This was accomplished by the Act of May 15, 1820,122 a law which may be regarded as the last of the Missouri Compromise measures. The act originated from the various bills on piracy which were introduced early in the sixteenth Congress. The House bill, in spite of opposition, was amended so as to include slave-trading under piracy, and passed. The Senate agreed without a division. 125This law provided that direct participation in the slave-trade should be piracy, punishable with death.123

Cf. Kendall's Report: Senate Doc., 21 Cong. 2 sess. I. No. 1, pp. 211–8; Amer. State Papers, Naval, III. No. 429 E.; also Reports of the Secretaries of the Navy from 1819 to 1860.

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65. Enforcement of the Supplementary Acts, 1818–1825. A somewhat more sincere and determined effort to enforce the slave-trade laws now followed; and yet it is a significant fact that not until Lincoln's administration did a slave-trader suffer death for violating the laws of the United States. The participation of Americans in the trade continued, declining somewhat between 1825 and 1830, and then reviving, until it reached its highest activity between 1840 and 1860. The development of a vast internal slave-trade, and the consequent rise in the South of vested interests strongly opposed to slave smuggling, led to a falling off in the illicit introduction of Negroes after 1825, until the fifties; nevertheless, smuggling never entirely ceased, and large numbers were thus added to the plantations of the Gulf States.

Monroe had various constitutional scruples as to the execution of the Act of 1819;124 but, as Congress took no action, he at last put a fair interpretation on his powers, and appointed Samuel Bacon as an agent in Africa to form a settlement for recaptured Africans. Gradually the agency thus formed became merged with that of the Colonization Society on Cape Mesurado; and from this union Liberia was finally evolved.125

Meantime, during the years 1818 to 1820, the activity of the slave-traders was prodigious. General James Tallmadge declared in the House, February 15, 1819: "Our laws are already highly penal against their introduction, and yet, it is a well known fact, that about fourteen thousand slaves have been brought into our country this last year."126 In the same year Middleton of South Carolina and Wright of Virginia estimated illicit introduction at 13,000 and 15,000 respectively. 127 127 Judge Story, in charging a jury, took occasion to say: "We have but too many proofs from unquestionable sources, that it [the slave-trade] is still carried on with all the implacable rapacity of former times. Avarice has grown more subtle in its evasions, and watches and seizes its prey with an appetite quickened rather than suppressed by its guilty vigils. American citizens are steeped to their very mouths (I can hardly use too bold a figure) in this stream of iniquity."128 The following year, 1820, brought some significant statements from various members of Congress. Said Smith of South Carolina: "Pharaoh was, for his temerity, drowned in the Red Sea, in pursuing them [the Israelites] contrary to God's express will; but our Northern friends have not been afraid even of that, in their zeal to furnish the Southern States with Africans. They are better seamen than Pharaoh, and calculate by that means to elude the vigilance of Heaven; which they seem to disregard, if they can but elude the violated laws of their country."129 As late as May he saw little hope of suppressing the traffic.130 Sergeant of Pennsylvania declared: "It is notorious that, in spite of the utmost vigilance that can be employed, African negroes are clandestinely brought in and sold as slaves."131 Plumer of New Hampshire stated that "of the unhappy beings, thus in violation of all laws transported to our shores, and thrown by force into the mass of our black population, scarcely one in a hundred is ever detected by the officers of the General Government, in a part of the country, where, if we are to believe the statement of Governor Rabun, 'an officer who would perform his duty, by attempting to enforce the law [against the slave trade] is, by many, considered as an officious meddler, and treated with derision and contempt;' ... I have been told by a gentleman, who has attended particularly to this subject, that ten thousand slaves were in one year smuggled into the United States; and that, even for the last year, we must count the number not by 128hundreds, but by thousands."132 In 1821 a committee of Congress characterized prevailing methods as those "of the grossest fraud that could be practised to deceive the officers of government."133 Another committee, in 1822, after a careful examination of the subject, declare that they "find it impossible to measure with precision the effect produced upon the American branch of the slave trade by the laws above mentioned, and the seizures under them. They are unable to state, whether those American merchants, the American capital and seamen which heretofore aided in this traffic, have abandoned it altogether, or have sought shelter under the flags of other nations." They then state the suspicious circumstance that, with the disappearance of the American flag from the traffic, "the trade, notwithstanding, increases annually, under the flags of other nations." They complain of the spasmodic efforts of the executive. They say that the first United States cruiser arrived on the African coast in March, 1820, and remained a "few weeks;" that since then four others had in two years made five visits in all; but "since the middle of last November, the commencement of the healthy season on that coast, no vessel has been, nor, as your committee is informed, is, under orders for that service."134 The United States African agent, Ayres, reported in 1823: "I was informed by an American officer who had been on the coast in 1820, that he had boarded 20 American vessels in one morning, lying in the port of Gallinas, and fitted for the reception of slaves. It is a lamentable fact, that most of the harbours, between the Senegal and the line, were visited by an equal number of American vessels, and for the sole purpose of carrying away slaves. Although for some years the coast had been occasionally visited by our cruizers, their short stay and seldom appearance 129had made but slight impression on those traders, rendered hardy by repetition of crime, and avaricious by excessive gain. They were enabled by a regular system to gain intelligence of any cruizer being on the coast."135

Even such spasmodic efforts bore abundant fruit, and indicated what vigorous measures might have accomplished. Between May, 1818, and November, 1821, nearly six hundred Africans were recaptured and eleven American slavers taken.136 Such measures gradually changed the character of the trade, and opened the international phase of the question. American slavers cleared for foreign ports, there took a foreign flag and papers, and then sailed boldly past American cruisers, although their real character was often well known. More stringent clearance laws and consular instructions might have greatly reduced this practice; but nothing was ever done, and gradually the laws became in large measure powerless to deal with the bulk of the illicit trade. In 1820, September 16, a British officer, in his official report, declares that, in spite of United States laws, "American vessels, American subjects, and American capital, are unquestionably engaged in the trade, though under other colours and in disguise."137 The United States ship "Cyane" at one time reported ten captures within a few days, adding: "Although they are evidently owned by Americans, they are so completely covered by Spanish papers that it is impossible to condemn them."138 The governor of Sierra Leone reported the rivers Nunez and Pongas full of renegade European and American slave-traders;139 the trade was said to be carried on "to an extent that almost staggers belief."140 Down to 1824 or 1825, reports from all quarters prove 130this activity in slave-trading.

The execution of the laws within the country exhibits grave defects and even criminal negligence. Attorney-General Wirt finds it necessary to assure collectors, in 1819, that "it is against public policy to dispense with prosecutions for violation of the law to prohibit the Slave trade."141 One district attorney writes: "It appears to be almost impossible to enforce the laws of the United States against offenders after the negroes have been landed in the state."142 Again, it is asserted that "when vessels engaged in the slave trade have been detained by the American cruizers, and sent into the slave-holding states, there appears at once a difficulty in securing the freedom to these captives which the laws of the United States have decreed for them."143 In some cases, one man would smuggle in the Africans and hide them in the woods; then his partner would "rob" him, and so all trace be lost.144 Perhaps 350 Africans were officially reported as brought in contrary to law from 1818 to 1820: the absurdity of this figure is apparent.145 A circular letter to the marshals, in 1821, brought reports of only a few well-known cases, like that of the "General Ramirez;" the marshal of Louisiana had "no information."146

There appears to be little positive evidence of a large illicit importation into the country for a decade after 1825. It is hardly possible, however, considering the activity in the trade, that slaves were not largely imported. Indeed, when we note how the laws were continually broken in other respects, absence of evidence of petty smuggling becomes presumptive evidence that collusive or tacit understanding of officers and citizens allowed the trade to some extent.147 Finally, it must be noted that during all this time scarcely a man suffered for 131participating in the trade, beyond the loss of the Africans and, more rarely, of his ship. Red-handed slavers, caught in the act and convicted, were too often, like La Coste of South Carolina, the subjects of executive clemency.148 In certain cases there were those who even had the effrontery to ask Congress to cancel their own laws. For instance, in 1819 a Venezuelan privateer, secretly fitted out and manned by Americans in Baltimore, succeeded in capturing several American, Portuguese,132 and Spanish slavers, and appropriating the slaves; being finally wrecked herself, she transferred her crew and slaves to one of her prizes, the "Antelope," which was eventually captured by a United States cruiser and the 280 Africans sent to Georgia. After much litigation, the United States Supreme Court ordered those captured from Spaniards to be surrendered, and the others to be returned to Africa. By some mysterious process, only 139 Africans now remained, 100 of whom were sent to Africa. The Spanish claimants of the remaining thirty-nine sold them to a certain Mr. Wilde, who gave bond to transport them out of the country. Finally, in December, 1827, there came an innocent petition to Congress to cancel this bond.149 A bill to that effect passed and was approved, May 2, 1828,150 and in consequence these Africans remained as slaves in Georgia.

On the whole, it is plain that, although in the period from 1807 to 1820 Congress laid down broad lines of legislation sufficient, save in some details, to suppress the African slave trade to America, yet the execution of these laws was criminally lax. Moreover, by the facility with which slavers could disguise their identity, it was possible for them to escape even a vigorous enforcement of our laws. This situation could properly be met only by energetic and sincere international co-operation. The next chapter will review efforts directed toward this end.151

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Chapter IX

THE INTERNATIONAL STATUS OF THE SLAVE-TRADE.

1783–1862.

66. The Rise of the Movement against the Slave-Trade, 1788–1807. At the beginning of the nineteenth century England held 800,000 slaves in her colonies; France, 250,000; Denmark, 27,000; Spain and Portugal, 600,000; Holland, 50,000; Sweden, 600; there were also about 2,000,000 slaves in Brazil, and about 900,000 in the United States.1 This was the powerful basis of the demand for the slave-trade; and against the economic forces which these four and a half millions of enforced laborers represented, the battle for freedom had to be fought.

Denmark first responded to the denunciatory cries of the eighteenth century against slavery and the slave-trade. In 1792, by royal order, this traffic was prohibited in the Danish possessions after 1802. The principles of the French Revolution logically called for the extinction of the slave system by France. This was, however, accomplished more precipitately than the Convention anticipated; and in a whirl of enthusiasm engendered by the appearance of the Dominican deputies, slavery and the slave-trade were abolished in all French colonies February 4, 1794.2 This abolition was short-lived; for at the command of the First Consul slavery and the slave-trade was restored in An X (1799).3 The trade was finally abo134lished by Napoleon during the Hundred Days by a decree, March 29, 1815, which briefly declared: "À dater de la publication du présent Décret, la Traite des Noirs est abolie."4 The Treaty of Paris eventually confirmed this law.5

In England, the united efforts of Sharpe, Clarkson, and Wilberforce early began to arouse public opinion by means of agitation and pamphlet literature. May 21, 1788, Sir William Dolben moved a bill regulating the trade, which passed in July and was the last English measure countenancing the traffic.6 The report of the Privy Council on the subject in 17897 precipitated the long struggle. On motion of Pitt, in 1788, the House had resolved to take up at the next session the question of the abolition of the trade.8 It was, accordingly, called up by Wilberforce, and a remarkable parliamentary battle ensued, which lasted continuously until 1805. The Grenville-Fox ministry now espoused the cause. This ministry first prohibited the trade with such colonies as England had acquired by conquest during the Napoleonic wars; then, in 1806, they prohibited the foreign slave-trade; and finally, March 25, 1807, enacted the total abolition of the traffic.9

67. Concerted Action of the Powers, 1783–1814. During the peace negotiations between the United States and Great Britain in 1783, it was proposed by Jay, in June, that there be a proviso inserted as follows: "Provided that the subjects of 135his Britannic Majesty shall not have any right or claim under the convention, to carry or import, into the said States any slaves from any part of the world; it being the intention of the said States entirely to prohibit the importation thereof."10 Fox promptly replied: "If that be their policy, it never can be competent to us to dispute with them their own regulations."11 No mention of this was, however, made in the final treaty, probably because it was thought unnecessary.

In the proposed treaty of 1806, signed at London December 31, Article 24 provided that "The high contracting parties engage to communicate to each other, without delay, all such laws as have been or shall be hereafter enacted by their respective Legislatures, as also all measures which shall have been taken for the abolition or limitation of the African slave trade; and they further agree to use their best endeavors to procure the co-operation of other Powers for the final and complete abolition of a trade so repugnant to the principles of justice and humanity."12

This marks the beginning of a long series of treaties between England and other powers looking toward the prohibition of the traffic by international agreement. During the years 1810–1814 she signed treaties relating to the subject with Portugal, Denmark, and Sweden.13 May 30, 1814, an additional article to the Treaty of Paris, between France and Great Britain, engaged these powers to endeavor to induce the approaching Congress at Vienna "to decree the abolition of the Slave Trade, so that the said Trade shall cease universally, as it shall cease definitively, under any circumstances, on the part of the French Government, in the course of 5 years; and that during the said period no Slave Merchant shall import or sell Slaves, except in the Colonies of the State of which he is a Subject."14 In addition to this, the next day a circular letter was despatched by Castlereagh to Austria, Russia, and Prussia, expressing the hope "that the Powers of Europe,136 when restoring Peace to Europe, with one common interest, will crown this great work by interposing their benign offices in favour of those Regions of the Globe, which yet continue to be desolated by this unnatural and inhuman traffic."15 Meantime additional treaties were secured: in 1814 by royal decree Netherlands agreed to abolish the trade;16 Spain was induced by her necessities to restrain her trade to her own colonies, and to endeavor to prevent the fraudulent use of her flag by foreigners;17 and in 1815 Portugal agreed to abolish the slave-trade north of the equator.18

68. Action of the Powers from 1814 to 1820. At the Congress of Vienna, which assembled late in 1814, Castlereagh was indefatigable in his endeavors to secure the abolition of the trade. France and Spain, however, refused to yield farther than they had already done, and the other powers hesitated to go to the lengths he recommended. Nevertheless, he secured the institution of annual conferences on the matter, and a declaration by the Congress strongly condemning the trade and declaring that "the public voice in all civilized countries was raised to demand its suppression as soon as possible," and that, while the definitive period of termination would be left to subsequent negotiation, the sovereigns would not consider their work done until the trade was entirely suppressed.19

In the Treaty of Ghent, between Great Britain and the United States, ratified February 17, 1815, Article 10, proposed by Great Britain, declared that, "Whereas the traffic in slaves is irreconcilable with the principles of humanity and justice," the two countries agreed to use their best endeavors in abolishing the trade.20 The final overthrow of Napoleon was marked by a second declaration of the powers, who, "desiring to give effect to the measures on which they deliberated at the Congress of Vienna, relative to the complete and universal 137abolition of the Slave Trade, and having, each in their respective Dominions, prohibited without restriction their Colonies and Subjects from taking any part whatever in this Traffic, engage to renew conjointly their efforts, with the view of securing final success to those principles which they proclaimed in the Declaration of the 4th February, 1815, and of concerting, without loss of time, through their Ministers at the Courts of London and of Paris, the most effectual measures for the entire and definitive abolition of a Commerce so odious, and so strongly condemned by the laws of religion and of nature."21

Treaties further restricting the trade continued to be made by Great Britain: Spain abolished the trade north of the equator in 1817,22 and promised entire abolition in 1820; Spain, Portugal, and Holland also granted a mutual limited Right of Search to England, and joined in establishing mixed courts.23 The effort, however, to secure a general declaration of the powers urging, if not compelling, the abolition of the trade in 1820, as well as the attempt to secure a qualified international Right of Visit, failed, although both propositions were strongly urged by England at the Conference of 1818.24

69. The Struggle for an International Right of Search, 1820–1840. Whatever England's motives were, it is certain that only a limited international Right of Visit on the high seas could suppress or greatly limit the slave-trade. Her diplomacy was therefore henceforth directed to this end. On the other hand, the maritime supremacy of England, so successfully138asserted during the Napoleonic wars, would, in case a Right of Search were granted, virtually make England the policeman of the seas; and if nations like the United States had already, under present conditions, had just cause to complain of violations by England of their rights on the seas, might not any extension of rights by international agreement be dangerous? It was such considerations that for many years brought the powers to a dead-lock in their efforts to suppress the slave-trade.

At first it looked as if England might attempt, by judicial decisions in her own courts, to seize even foreign slavers.25 After the war, however, her courts disavowed such action,26 and the right was sought for by treaty stipulation. Castlereagh took early opportunity to approach the United States on the matter, suggesting to Minister Rush, June 20, 1818, a mutual but strictly limited Right of Search.27 Rush was ordered to give him assurances of the solicitude of the United States to suppress the traffic, but to state that the concessions asked for appeared of a character not adaptable to our institutions. Negotiations were then transferred to Washington; and the new British minister, Mr. Stratford Canning, approached Adams with full instructions in December, 1820.28

Meantime, it had become clear to many in the United States that the individual efforts of States could never suppress or even limit the trade without systematic co-operation. In 1817 a committee of the House had urged the opening of negotiations looking toward such international co-operation,29 and a Senate motion to the same effect had caused long debate.30 In 1820 and 1821 two House committee reports, one of which recommended the granting of a Right of Search, were adopted by the House, but failed in the Senate.31 Adams, notwithstanding this, saw constitutional objections to the 139 plan proposed by Canning, and wrote to him, December 30: "A Compact, giving the power to the Naval Officers of one Nation to search the Merchant Vessels of another for Offenders and offences against the Laws of the latter, backed by a further power to seize and carry into a Foreign Port, and there subject to the decision of a Tribunal composed of at least one half Foreigners, irresponsible to the Supreme Corrective tribunal of this Union, and not amendable to the controul of impeachment for official misdemeanors, was an investment of power, over the persons, property and reputation of the Citizens of this Country, not only unwarranted by any delegation of Sovereign Power to the National Government, but so adverse to the elementary principles and indispensable securities of individual rights, ... that not even the most unqualified approbation of the ends ... could justify the transgression." He then suggested co-operation of the fleets on the coast of Africa, a proposal which was promptly accepted.32

The slave-trade was again a subject of international consideration at the Congress of Verona in 1822. Austria, France, Great Britain, Russia, and Prussia were represented. The English delegates declared that, although only Portugal and Brazil allowed the trade, yet the traffic was at that moment carried on to a greater extent than ever before. They said that in seven months of the year 1821 no less than 21,000 slaves were abducted, and three hundred and fifty-two vessels entered African ports north of the equator. "It is obvious," said they, "that this crime is committed in contravention of the Laws of every Country of Europe, and of America, excepting only of one, and that it requires something more than the ordinary operation of Law to prevent it." England therefore recommended:—

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1. That each country denounce the trade as piracy, with a view of founding upon the aggregate of such separate declarations a general law to be incorporated in the Law of Nations.

2. A withdrawing of the flags of the Powers from persons not natives of these States, who engage in the traffic under the flags of these States.

3. A refusal to admit to their domains the produce of the colonies of States allowing the trade, a measure which would apply to Portugal and Brazil alone.

These proposals were not accepted. Austria would agree to the first two only; France refused to denounce the trade as piracy; and Prussia was non-committal. The utmost that could be gained was another denunciation of the trade couched in general terms.33

70. Negotiations of 1823–1825. England did not, however, lose hope of gaining some concession from the United States. Another House committee had, in 1822, reported that the only method of suppressing the trade was by granting a Right of Search.34 The House agreed, February 28, 1823, to request the President to enter into negotiations with the maritime powers of Europe to denounce the slave-trade as piracy; an amendment "that we agree to a qualified right of search" was, however, lost.35 Meantime, the English minister was continually pressing the matter upon Adams, who proposed in turn to denounce the trade as piracy. Canning agreed to this, but only on condition that it be piracy under the Law of Nations and not merely by statute law. Such an agreement, he said, would involve a Right of Search for its enforcement; he proposed strictly to limit and define this right, to allow captured ships to be tried in their own courts, and not to commit the United States in any way to the question of the belligerent Right of Search. Adams finally sent a draft of a proposed treaty to England, and agreed to recognize the slave-traffic "as piracy under the law of nations, namely: that, although seizable by the officers and authorities of every nation, they should be triable only by the tribunals of the country of the 141slave trading vessel."36

Rush presented this project to the government in January, 1824. England agreed to all the points insisted on by the United States; viz., that she herself should denounce the trade as piracy; that slavers should be tried in their own country; that the captor should be laid under the most effective responsibility for his conduct; and that vessels under convoy of a ship of war of their own country should be exempt from search. In addition, England demanded that citizens of either country captured under the flag of a third power should be sent home for trial, and that citizens of either country chartering vessels of a third country should come under these stipulations.37

This convention was laid before the Senate April 30, 1824, but was not acted upon until May 21, when it was so amended as to make it terminable at six months' notice. The same day, President Monroe, "apprehending, from the delay in the decision, that some difficulty exists," sent a special message to the Senate, giving at length the reasons for signing the treaty, and saying that "should this Convention be adopted, there is every reason to believe, that it will be the commencement of a system destined to accomplish the entire Abolition of the Slave Trade." It was, however, a time of great political pot-boiling, and consequently an unfortunate occasion to ask senators to settle any great question. A systematic attack, led by Johnson of Louisiana, was made on all the vital provisions of the treaty: the waters of America were excepted from its application, and those of the West Indies barely escaped exception; the provision which, perhaps, aimed the deadliest blow at American slave-trade interests was likewise struck out; namely, the application of the Right of Search to citizens chartering the vessels of a third nation.38

The convention thus mutilated was not signed by England, who demanded as the least concession the application of the Right of Search to American waters. Meantime the United States had invited nearly all nations to denounce the t142rade as piracy; and the President, the Secretary of the Navy, and a House committee had urgently favored the granting of the Right of Search. The bad faith of Congress, however, in the matter of the Colombian treaty broke off for a time further negotiations with England.39

71. The Attitude of the United States and the State of the Slave-Trade. In 1824 the Right of Search was established between England and Sweden, and in 1826 Brazil promised to abolish the trade in three years.40 In 1831 the cause was greatly advanced by the signing of a treaty between Great Britain and France, granting mutually a geographically limited Right of Search.41 This led, in the next few years, to similar treaties with Denmark, Sardinia,42 the Hanse towns,43 and Naples.44 Such measures put the trade more and more in the hands of Americans, and it began greatly to increase. Mercer sought repeatedly in the House to have negotiations reopened with England, but without success.45 Indeed, the chances of success were now for many years imperilled by the recurrence of deliberate search of American vessels by the British.46 In the majo143rity of cases the vessels proved to be slavers, and some of them fraudulently flew the American flag; nevertheless, their molestation by British cruisers created much feeling, and hindered all steps toward an understanding: the United States was loath to have her criminal negligence in enforcing her own laws thus exposed by foreigners. Other international questions connected with the trade also strained the relations of the two countries: three different vessels engaged in the domestic slave-trade, driven by stress of weather, or, in the "Creole" case, captured by Negroes on board, landed slaves in British possessions; England freed them, and refused to pay for such as were landed after emancipation had been proclaimed in the West Indies.47 The case of the slaver "L'Amistad" also raised difficulties with Spain. This Spanish vessel, after the Negroes on board had mutinied and killed their owners, was seized by a United States vessel and brought into port for adjudication. The court, however, freed the Negroes, on the ground that under Spanish law they were not legally slaves; and although the Senate repeatedly tried to indemnify the owners, the project did not succeed.48

Such proceedings well illustrate the new tendency of the pro-slavery party to neglect the enforcement of the slave-trade laws, in a frantic defence of the remotest ramparts of slave property. Consequently, when, after the treaty of 1831, France and England joined in urging the accession of the United States to it, the British minister was at last compelled to inform Palmerston, December, 1833, that "the Executive at Washington appears to shrink from bringing forward, in an144y shape, a question, upon which depends the completion of their former object—the utter and universal Abolition of the Slave Trade—from an apprehension of alarming the Southern States."49 Great Britain now offered to sign the proposed treaty of 1824 as amended; but even this Forsyth refused, and stated that the United States had determined not to become "a party of any Convention on the subject of the Slave Trade."50

Estimates as to the extent of the slave-trade agree that the traffic to North and South America in 1820 was considerable, certainly not much less than 40,000 slaves annually. From that time to about 1825 it declined somewhat, but afterward increased enormously, so that by 1837 the American importation was estimated as high as 200,000 Negroes annually. The total abolition of the African trade by American countries then brought the traffic down to perhaps 30,000 in 1842. A large and rapid increase of illicit traffic followed; so that by 1847 the importation amounted to nearly 100,000 annually. One province of Brazil is said to have received 173,000 in the years 1846–1849. In the decade 1850–1860 this activity in slave-trading continued, and reached very large proportions.

The traffic thus carried on floated under the flags of France, Spain, and Portugal, until about 1830; from 1830 to 1840 it began gradually to assume the United States flag; by 1845, a large part of the trade was under the stars and stripes; by 1850 fully one-half the trade, and in the decade, 1850–1860 nearly all the traffic, found this flag its best protection.51

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72. The Quintuple Treaty, 1839–1842. In 1839 Pope Gregory XVI. stigmatized the slave-trade "as utterly unworthy of the Christian name;" and at the same time, although proscribed by the laws of every civilized State, the trade was flourishing with pristine vigor. Great advantage was given the traffic by the fact that the United States, for two decades after the abortive attempt of 1824, refused to co-operate with the rest of the civilized world, and allowed her flag to shelter and protect the slave-trade. If a fully equipped slaver sailed from New York, Havana, Rio Janeiro, or Liverpool, she had only to hoist the stars and stripes in order to proceed unmolested on her piratical voyage; for there was seldom a United States 146cruiser to be met with, and there were, on the other hand, diplomats at Washington so jealous of the honor of the flag that they would prostitute it to crime rather than allow an English or a French cruiser in any way to interfere. Without doubt, the contention of the United States as to England's pretensions to a Right of Visit was technically correct. Nevertheless, it was clear that if the slave-trade was to be suppressed, each nation must either zealously keep her flag from fraudulent use, or, as a labor-saving device, depute to others this duty for limited places and under special circumstances. A failure of any one nation to do one of these two things meant that the efforts of all other nations were to be fruitless. The United States had invited the world to join her in denouncing the slave-trade as piracy; yet, when such a pirate was waylaid by an English vessel, the United States complained or demanded reparation. The only answer which this country for years returned to the long-continued exposures of American slave-traders and of the fraudulent use of the American flag, was a recital of cases where Great Britain had gone beyond her legal powers in her attempt to suppress the slave-trade.52 In the face of overwhelming evidence to the contrary, Secretary of State Forsyth declared, in 1840, that the duty of the United States in the matter of the slave-trade "has been faithfully performed, and if the traffic still exists as a disgrace to humanity, it is to be imputed to nations with whom Her Majesty's Government has formed and maintained the most intimate connexions, and to whose Governments Great Britain has paid for the right of active intervention in order to its complete extirpation."53 So zealous was Stevenson, our minister to England, in denying the Right of Search, that he boldly informed Palmerston, in 1841, "that there is no shadow of pretence for excusing, much less justifying, the exercise of any such right. That it is wholly immaterial, whether the vessels be equipped for, or actually engaged in slave traffic or not, and consequently the right to search or detain even slave vessels, must be confined to the ships or vessels of those nations with whom it may have treaties on the subject."54 Palmerston147 courteously replied that he could not think that the United States seriously intended to make its flag a refuge for slave-traders;55 and Aberdeen pertinently declared: "Now, it can scarcely be maintained by Mr. Stevenson that Great Britain should be bound to permit her own subjects, with British vessels and British capital, to carry on, before the eyes of British officers, this detestable traffic in human beings, which the law has declared to be piracy, merely because they had the audacity to commit an additional offence by fraudulently usurping the American flag."56 Thus the dispute, even after the advent of Webster, went on for a time, involving itself in metaphysical subtleties, and apparently leading no nearer to an understanding.57

In 1838 a fourth conference of the powers for the consideration of the slave-trade took place at London. It was attended by representatives of England, France, Russia, Prussia, and Austria. England laid the projet of a treaty before them, to which all but France assented. This so-called Quintuple Treaty, signed December 20, 1841, denounced the slave-trade as piracy, and declared that "the High Contracting Parties agree by common consent, that those of their ships of war which shall be provided with special warrants and orders ... may search every merchant-vessel belonging to any one of the High Contracting Parties which shall, on reasonable grounds, be suspected of being engaged in the traffic in slaves." All captured slavers were to be sent to their own countries for trial.58

While the ratification of this treaty was pending, the United States minister to France, Lewis Cass, addressed an official note to Guizot at the French foreign office, protesting against the institution of an international Right of Search, and rather grandiloquently warning the powers against the use of force to accomplish their ends.59 This extraordinary epistle, issued on the minister's own responsibility, brought a reply denying 148that the creation of any "new principle of international law, whereby the vessels even of those powers which have not participated in the arrangement should be subjected to the right of search," was ever intended, and affirming that no such extraordinary interpretation could be deduced from the Convention. Moreover, M. Guizot hoped that the United States, by agreeing to this treaty, would "aid, by its most sincere endeavors, in the definitive abolition of the trade."60 Cass's theatrical protest was, consciously or unconsciously, the manifesto of that growing class in the United States who wanted no further measures taken for the suppression of the slave-trade; toward that, as toward the institution of slavery, this party favored a policy of strict laissez-faire.

73. Final Concerted Measures, 1842–1862. The Treaty of Washington, in 1842, made the first effective compromise in the matter and broke the unpleasant dead-lock, by substituting joint cruising by English and American squadrons for the proposed grant of a Right of Search. In submitting this treaty, Tyler said: "The treaty which I now submit to you proposes no alteration, mitigation, or modification of the rules of the law of nations. It provides simply that each of the two Governments shall maintain on the coast of Africa a sufficient squadron to enforce separately and respectively the laws, rights, and obligations of the two countries for the suppression of the slave trade."61 This provision was a part of the treaty to settle the boundary disputes with England. In the Senate, Benton moved to strike out this article; but the attempt was defeated by a vote of 37 to 12, and the treaty was ratified.62

This stipulation of the treaty of 1842 was never properly carried out by the United States for any length of time.63 Consequently the same difficulties as to search and visit by English149 vessels continued to recur. Cases like the following were frequent. The "Illinois," of Gloucester, Massachusetts, while lying at Whydah, Africa, was boarded by a British officer, but having American papers was unmolested. Three days later she hoisted Spanish colors and sailed away with a cargo of slaves. Next morning she fell in with another British vessel and hoisted American colors; the British ship had then no right to molest her; but the captain of the slaver feared that she would, and therefore ran his vessel aground, slaves and all. The senior English officer reported that "had Lieutenant Cumberland brought to and boarded the 'Illinois,' notwithstanding the American colors which she hoisted, ... the American master of the 'Illinois' ... would have complained to his Government of the detention of his vessel."64 Again, a vessel which had been boarded by British officers and found with American flag and papers was, a little later, captured under the Spanish flag with four hundred and thirty slaves. She had in the interim complained to the United States government of the boarding.65

Meanwhile, England continued to urge the granting of a Right of Search, claiming that the stand of the United States really amounted to the wholesale protection of pirates under her flag.66 The United States answered by alleging that even the Treaty of 1842 had been misconstrued by England,67 whereupon there was much warm debate in Congress, and several attempts were made to abrogate the slave-trade article of the treaty.68 The pro-slavery party had become more and more suspicious of England's motives, since they had seen her abolition of the slave-trade blossom into abolition of the system itself, and they seized every opportunity to prevent co-operation with her. At the same time, European interest in the question showed some signs of weakening, and no decided action was taken. In 1845 France changed her Right of150 Search stipulations of 1833 to one for joint cruising,69 while the Germanic Federation,70 Portugal,71 and Chili72enounced the trade as piracy. In 1844 Texas granted the Right of Search to England,73 and in 1845 Belgium signed the Quintuple Treaty.74

Discussion between England and the United States was revived when Cass held the State portfolio, and, strange to say, the author of "Cass's Protest" went farther than any of his predecessors in acknowledging the justice of England's demands. Said he, in 1859: "If The United States maintained that, by carrying their flag at her masthead, any vessel became thereby entitled to the immunity which belongs to American vessels, they might well be reproached with assuming a position which would go far towards shielding crimes upon the ocean from punishment; but they advance no such pretension, while they concede that, if in the honest examination of a vessel sailing under American colours, but accompanied by strongly-marked suspicious circumstances, a mistake is made, and she is found to be entitled to the flag she bears, but no injury is committed, and the conduct of the boarding party is irreproachable, no Government would be likely to make a case thus exceptional in its character a subject of serious reclamation."75 While admitting this and expressing a desire to co-operate in the suppression of the slave-trade, Cass nevertheless steadily refused all further overtures toward a mutual Right of Search.

The increase of the slave-traffic was so great in the decade 1850–1860 that Lord John Russell proposed to the governments of the United States, France, Spain, Portugal, and Brazil, that they instruct their ministers to meet at London in May or June, 1860, to consider measures for the final abolition of the trade. He stated: "It is ascertained, by repeated instances, 151that the practice is for vessels to sail under the American flag. If the flag is rightly assumed, and the papers correct, no British cruizer can touch them. If no slaves are on board, even though the equipment, the fittings, the water-casks, and other circumstances prove that the ship is on a Slave Trade venture, no American cruizer can touch them."76 Continued representations of this kind were made to the paralyzed United States government; indeed, the slave-trade of the world seemed now to float securely under her flag. Nevertheless, Cass refused even to participate in the proposed conference, and later refused to accede to a proposal for joint cruising off the coast of Cuba.77 Great Britain offered to relieve the United States of any embarrassment by receiving all captured Africans into the West Indies; but President Buchanan "could not contemplate any such arrangement," and obstinately refused to increase the suppressing squadron.78

On the outbreak of the Civil War, the Lincoln administration, through Secretary Seward, immediately expressed a willingness to do all in its power to suppress the slave-trade.79 Accordingly, June 7, 1862, a treaty was signed with Great Britain granting a mutual limited Right of Search, and establishing mixed courts for the trial of offenders at the Cape of Good Hope, Sierra Leone, and New York.80 The efforts of a half-century of diplomacy were finally crowned; Seward wrote to Adams, "Had such a treaty been made in 1808, there would now have been no sedition here."81