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[85] _Ibid._, pp. 374-5.
[86] See House Bill No. 94.
[87] _Annals of Cong._, 9 Cong. 1 sess. p. 466.
[88] _Annals of Cong._, 9 Cong. 1 sess. pp. 519-20.
[89] _Ibid._, pp. 21, 52, 75, etc., to 138, 485-515, 1228. See House Bill No. 168. Cf. _Statutes at Large_, II. 421-2.
[90] A few months later, at the expiration of the period, trade was quietly reopened. _Annals of Cong._, 11 Cong. 1 sess. pp. 443-6.
_Chapter VIII_
THE PERIOD OF ATTEMPTED SUPPRESSION. 1807-1825.
55. The Act of 1807.
56. The First Question: How shall illegally imported Africans be disposed of?
57. The Second Question: How shall Violations be punished?
58. The Third Question: How shall the Interstate Coastwise Slave-Trade be protected?
59. Legislative History of the Bill.
60. Enforcement of the Act.
61. Evidence of the Continuance of the Trade.
62. Apathy of the Federal Government.
63. Typical Cases.
64. The Supplementary Acts, 1818-1820.
65. Enforcement of the Supplementary Acts, 1818-1825.
55. ~The Act of 1807.~ The first great goal of anti-slavery effort in the United States had been, since the Revolution, the suppression of the slave-trade by national law. It would hardly be too much to say that the Haytian revolution, in addition to its influence in the years from 1791 to 1806, was one of the main causes that rendered the accomplishment of this aim possible at the earliest const.i.tutional 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 const.i.tutionally, to withdraw the citizens of the United States from all further partic.i.p.ation in those violations of human rights which have been so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best interests of our country, have long been eager to proscribe. Although no law you may pa.s.s 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 ill.u.s.trated 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 att.i.tude of the South toward the slave system. Early boldly said, "A large majority of people in the Southern States do not consider slavery as even an evil."[3] The South, in fact, insisted on regarding man-stealing as a minor offence, a "misdemeanor" rather than a "crime." Finally, in the short and sharp debate on the interstate coastwise trade, the growing economic side of the slavery question came to the front, the vested interests' argument was squarely put, and the future interstate trade almost consciously provided for.
From these considerations, it is doubtful as to how far it was expected that the Act of 1807 would check the slave traffic; at any rate, so far as the South was concerned, there seemed to be an evident desire to limit the trade, but little thought that this statute would definitively suppress it.
56. ~The First Question: How shall illegally imported Africans be disposed of?~ The dozen or more propositions on the question of the disposal of illegally imported Africans may be divided into two chief heads, representing two radically opposed parties: 1. That illegally imported Africans be free, although they might be indentured for a term of years or removed from the country. 2. That such Africans be sold as slaves.[4] The arguments on these two propositions, which were many and far-reaching, may be roughly divided into three cla.s.ses, political, const.i.tutional, and moral.
The political argument, reduced to its lowest terms, ran thus: those wishing to free the Negroes illegally imported declared that to enslave them would be to perpetrate the very evil which the law was designed to stop. "By the same law," they said, "we condemn the man-stealer and become the receivers of his stolen goods. We punish the criminal, and then step into his place, and complete the crime."[5] They said that the objection to free Negroes was no valid excuse; for if the Southern people really feared this cla.s.s, 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 pa.s.s 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 pa.s.sions and wishes of the people among whom they are to operate. How then, in this instance, stands the fact? Do not gentlemen from every quarter of the Union prove, on the discussion of every question that has ever arisen in the House, having the most remote bearing on the giving freedom to the Africans in the bosom of our country, that it has excited the deepest sensibility in the b.r.e.a.s.t.s 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 quant.i.ty 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 pa.s.sage of this law. I ask gentlemen to reflect and say whether such a law, opposed to the ideas, the pa.s.sions, the views, and the affections of the people of the Southern States, can be executed? I tell them, no; it is impossible--why? Because no man will inform--why? Because to inform will be to lead to an evil which will be deemed greater than the offence of which information is given, because it will be opposed to the principle of self-preservation, and to the love of family. No, no man will be disposed to jeopard his life, and the lives of his countrymen.
And if no one dare inform, the whole authority of the Government cannot carry the law into effect. The whole people will rise up against it.
Why? Because to enforce it would be to turn loose, in the bosom of the country, firebrands that would consume them."[11]
This was the more tragic form of the argument; it also had a mercenary side, which was presented with equal emphasis. It was repeatedly said that the only way to enforce the law was to play off individual interests against each other. The profit from the sale of illegally imported Negroes was declared to be the only sufficient "inducement to give information of their importation."[12] "Give up the idea of forfeiture, and I challenge the gentleman to invent fines, penalties, or punishments of any sort, sufficient to restrain the slave trade."[13]
If such Negroes be freed, "I tell you that slaves will continue to be imported as heretofore.... You cannot get hold of the ships employed in this traffic. Besides, slaves will be brought into Georgia from East Florida. They will be brought into the Mississippi Territory from the bay of Mobile. You cannot inflict any other penalty, or devise any other adequate means of prevention, than a forfeiture of the Africans in whose possession they may be found after importation."[14] Then, too, when foreigners smuggled in Negroes, "who then ... could be operated on, but the purchasers? There was the rub--it was their interest alone which, by being operated on, would produce a check. Snap their purse-strings, break open their strong box, deprive them of their slaves, and by destroying the temptation to buy, you put an end to the trade, ...
nothing short of a forfeiture of the slave would afford an effectual remedy."[15] Again, it was argued that it was impossible to prevent imported Negroes from becoming slaves, or, what was just as bad, from being sold as vagabonds or indentured for life.[16] Even our own laws, it was said, recognize the t.i.tle of the African slave factor in the transported Negroes; and if the importer have no t.i.tle, 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 const.i.tutional 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 t.i.tle to all slave property;[21] others thought that, as property in slaves was not recognized in the Const.i.tution, 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 Ma.s.sachusetts 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 G.o.d and man," these captured Negroes are "ent.i.tled to their freedom as clearly and absolutely as we are;"[28] nevertheless, some were willing to leave them to the tender mercies of the slave States, so long as the statute-book was disgraced by no explicit recognition of slavery.[29]
Such arguments brought some sharp sarcasm on those who seemed anxious "to legislate for the honor and glory of the statute book;"[30] some desired "to know what honor you will derive from a law that will be broken every day of your lives."[31] They would rather boldly sell the Negroes and turn the proceeds over to charity.
The final settlement of the question was as follows:--
"SECTION 4.... And neither the importer, nor any person or persons claiming from or under him, shall hold any right or t.i.tle whatsoever to any negro, mulatto, or person of color, nor to the service or labor thereof, who may be imported or brought within the United States, or territories thereof, in violation of this law, but the same shall remain subject to any regulations not contravening the provisions of this act, which the Legislatures of the several States or Territories at any time hereafter may make, for disposing of any such negro, mulatto, or person of color."[32]
57. ~The Second Question: How shall Violations be punished?~ The next point in importance was that of the punishment of offenders. The half-dozen specific propositions reduce themselves to two: 1. A violation should be considered a crime or felony, and be punished by death; 2. A violation should be considered a misdemeanor, and be punished by fine and imprisonment.[33]
Advocates of the severer punishment dwelt on the enormity of the offence. It was "one of the highest crimes man could commit," and "a captain of a ship engaged in this traffic was guilty of murder."[34] The law of G.o.d 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 pa.s.sion, 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, a.s.suring the South that "so far from charging their Southern brethren with cruelty or severity in hanging them, they would acknowledge the favor with grat.i.tude."[41] Finally, if the Southerners would refuse to execute so severe a law because they did not consider the offence great, they would probably refuse to execute any law at all for the same reason.[42]
The opposition answered that the death penalty was more than proportionate to the crime, and therefore "immoral."[43] "I cannot believe," said Stanton of Rhode Island, "that a man ought to be hung for only stealing a negro."[44] It was argued that the trade was after all but a "transfer from one master to another;"[45] that slavery was worse than the slave-trade, and the South did not consider slavery a crime: how could it then punish the trade so severely and not reflect on the inst.i.tution?[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 const.i.tutionally imposed by a Government possessed of the limited powers of the Government of the United States."[48]
The bill as pa.s.sed punished infractions as follows:--
For equipping a slaver, a fine of $20,000 and forfeiture of the ship.
For transporting Negroes, a fine of $5000 and forfeiture of the ship and Negroes.
For transporting and selling Negroes, a fine of $1000 to $10,000, imprisonment from 5 to 10 years, and forfeiture of the ship and Negroes.
For knowingly buying illegally imported Negroes, a fine of $800 for each Negro, and forfeiture.
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 or 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 Const.i.tutional 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 pa.s.sed 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 pa.s.sed 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 on 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 pa.s.sed, 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 Ma.s.sachusetts 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 of 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 pa.s.sed, by a vote of 113 to 5.[62] The Senate agreed to the amendments, including that subst.i.tuting 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]
The following diagram shows in graphic form the legislative history of the act:--[64]
_Senate._ _1805._ _House._ Bradley gives notice. + Dec. 12.
Leave given; bill read. + 17.
Postponed one year. + 18.
