CHAPTER II

EARLY LEGISLATION AGAINST SLAVERY

The Cavalier and adventurer in working out their destiny in the New World became purged of the foibles that continued to debauch their compeers in England; among their descendants of a few generations were those men of unimpeachable honor and integrity of purpose who will be held forever as the highest types of American chivalry and manhood. Those of Virginia, with whom colonial slavery was most ancient, were the first to be aroused to the full ethical significance of the evil--to the grave injustice to the unfortunate lower race, and to the detriment to the moral nature of the higher. They were the first to attempt to legislate against the evil. In 1770, Virginia protested against the importation of slaves, but to no avail as royalty itself was financially interested in the traffic. At the meeting of the delegates from each county of Virginia held at Williamsburg in August, 1774, to consider British oppression and indignities, the second article of the protest resolved and agreed upon bore upon the slave traffic: “We will neither ourselves import nor purchase any slave, or slaves, imported by any person, after the first day of November next, either from Africa, the West Indies, or any other place.” This meeting was a full one, and among the one hundred and eight signers--all prominent in Virginia life and annals--are Peyton Randolph, Richard Henry Lee, George Washington, Benjamin Harrison, Patrick Henry, Thomas Jefferson, Thomas Marshall, Thomas Randolph, and Francis Lightfoot Lee. The instructions of Thomas Jefferson, with whom the abolition of slavery was always a great aim, to the Virginia delegates to the first Congress (August, 1774), voiced the sentiments of Virginia’s most thoughtful men: “For the most trifling reason, and sometimes for no reason at all, His Majesty has rejected laws of the most salutary tendency. The abolition of domestic slavery is the great object of desire in those colonies, where it was, unhappily introduced in their infant state. But previous to the enfranchisement of the slaves we have, it is necessary to exclude all further importations from Africa. Yet our repeated attempts to effect this, by prohibitions, and by imposing duties which might amount to a prohibition have been hitherto defeated by His Majesty’s negative; thus preferring the immediate advantage of a few British corsairs to the lasting interests of the American States, and to the rights of human nature deeply wounded by this inhuman practise.”

Not only was every effort of the Southern colonists opposed by England’s monarch, but with the breaking out of open hostilities his agents were commissioned to arm and instigate the slaves against their masters.[8] Many lured by the promise of land and freedom flocked to the British standard; they were sent into Nova Scotia. Suffering from cold and becoming discontented by the non-fulfillment of the promises of aggrandizement, they were finally sent to Sierra Leone, which in the following seventy-five years received the thousands taken by the British from the slavers.

During this fearful crisis, Virginia’s spirit towards these misguided people was one of mercy and humanitarianism. At the next convention it was resolved: “Whereas Lord Dunmore, by his proclamation, dated on board the ship _William_ off Norfolk, the 7th day of November, 1775, hath offered freedom to such able-bodied slaves as are willing to join him, and take up arms against the good people of this colony, giving encouragement to a general insurrection, which may induce a necessity of inflicting the severest punishments upon these unhappy people already deluded by his base and insiduous arts, and whereas, by an act of the general assembly now in force in this colony, it is enacted, that all negro, or other slaves, conspiring to rebel or make insurrection, shall suffer death, and be excluded all benefit of clergy--we think it proper to declare, that all slaves who have been, or shall be seduced by his lordship’s proclamation, or others to desert their masters’ service and take up arms against the inhabitants of this colony, shall be liable to such punishment as shall hereafter be directed by the convention. And to the end that all such, who have taken this unlawful and wicked step, may return in safety, to their duty, and escape the punishment due their crimes, we hereby promise pardon to them, surrendering themselves to Colonel William Woodford or any other commander of our troops, and not appearing in arms after the publication hereof. And we do further earnestly recommend it to all humane and benevolent persons in the colony, to explain and make known this offer of mercy to those unfortunate people.”

About this time, some feeling against American slavery, but more against the “aristocratic spirit of Virginia and the Southern colonists,” stirred England, and a general enfranchisement of the slaves was proposed. Edmund Burke, in his famous speech of March 22, 1775, on the “Conciliation with America,” touches on the incongruity of such a proposition of freedom coming from England: “Slaves as these unfortunate black people are, and dull as all men are from slavery, must they not a little suspect the offer of freedom from that very nation, one of whose causes of quarrel with those masters is their refusal to deal any more in that inhuman traffic? An offer of freedom from England would come rather oddly, shipped to them in an African vessel, which is refused entry into the ports of Virginia or Carolina, with a cargo of three hundred Angola negroes. It would be curious to see the Guinea captain attempt at the same instant to publish his proclamation of liberty and to advertise the sale of slaves.”

After throwing off the British yoke, the abolition of the slave traffic and of slavery was still a paramount issue with these men of Virginia, and in the Declaration of Independence, Jefferson had drafted a clause relative to the moral obliquity; this clause, “reprobating the enslaving the inhabitants of Africa, 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, felt a little tender under these censures; for though their people had few slaves themselves, yet they had been very considerable carriers of them to others.”[9]

The disposition to emancipate was strongest in Virginia. In 1778, when Jefferson introduced a bill into the Assembly to stop the further importation of slaves either by land or sea--a fine of one thousand pounds to be imposed upon any transgressor--it was passed without opposition and temporarily decreased the evil, but the time was not ripe for so philanthropic an innovation, and the bill was repealed by a later Assembly. Many of the younger men, however, were imbued with a realization of the evil, especially those who at William and Mary’s College, had come under the influence of George Wythe, and it was to these that many looked for the ultimate righting of the wrong. Adumbrations of a future catastrophe broke upon Jefferson, but in that period of patriotism, his almost prophetic vision saw not the dim, distant conflict as one arising out of the inherent differences of North and South, though this came to sadden his declining years, but rather as one of race against race: “Indeed I tremble for my country when I reflect that God is just; that His justice cannot sleep forever; that considering numbers, nature, and natural means only, a revolution of the wheel of fortune, an exchange of situation is among possible events.” The hope of eradicating negro slavery before it took a too vital hold upon the needs and institutions of his land stirred his patriotic and spiritual zeal; throughout a long life he took a vigorous stand against its growth. In 1784, when Virginia gave to the United States her portion of the Northwest Territory, it was Jefferson, assisted by Chase and Howell, who drafted and ardently advocated the ordinance that “after the year 1800 there should be neither slavery nor involuntary servitude in any of the said States, otherwise than in punishment of crime.” This was defeated, but led to the Ordinance of 1787 which forever excluded slavery from the territory northwest of the Ohio River.

At the Constitutional Convention held in Philadelphia in 1787, Jefferson urged as a step towards the ultimate ending of slavery, the immediate abolition of the importation, but Pinckney of South Carolina moved that the traffic be extended until 1808, and he was seconded by Gorman of Massachusetts. The motion carried in all the New England States, in South Carolina, Georgia, and Maryland; Virginia, Pennsylvania, New Jersey, and Delaware were against it. This exigency of extending it for twenty years was a subject of grave apprehension to many thoughtful and patriotic men who were slave owners, among them Jefferson, Washington, and Madison; though the attitude of the last was frequently ambiguous about many questions, he commits himself very fully on this clause of the Constitution in _The Federalist_: “It were doubtless to be wished that the power of prohibiting the importation of slaves had not been postponed until 1808, or, rather, that it had been suffered to have immediate operation. But it is not difficult to account either for the 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 polity.”

It may be assumed that the majority of those engaged in framing the Constitution regarded slavery as a domestic problem nearing its end, and it was a policy which at that time received more vehement denunciation from men of the South than those of the North, probably because a part of the North was actively engaged in the traffic and that the humanitarians of the South, born in the midst of slavery, were not only awake to the ethical significance of the evil, but were averse to raising within their midst thousands of an alien race. That the disposition to discontinue all avenues which led to a continuation of slavery was not more general was incomprehensible to Jefferson, and absolutely out of harmony with the spirit of freedom which permeated American life: “What a stupendous, what an incomprehensible machine is man! who can endure toil, famine, stripes, imprisonment, and death itself in vindication of his own liberty, and the next moment be deaf to all those motives whose power supported him through trial, and inflict on his fellow-men a bondage, one hour of which is fraught with more misery, than ages of that which he rose in rebellion to oppose. But we must await, with patience, the workings of an over-ruling Providence, and hope that that is preparing the deliverance of those, our suffering brethren. When the measure of their tears shall be full, when their groans shall have involved heaven itself in darkness, doubtless, a God of justice will awaken to their distress, and by diffusing light and liberality among their oppressors, or at length, by his exterminating thunder, manifest his attention to the things of this world, and that they are not left to the guidance of a blind fatality.”[10]

This constitutional postponement did not even settle the question temporarily. The Quakers presented a memorial for the abolition of the slave trade to the very first Congress (1790). This was reported by a committee to the whole House; and after various amendments was returned with the following:

“1st, That migration or importation of such persons, as any of the States now existing shall think proper to admit, can not be prohibited by Congress prior to the year 1808.

“2d, That Congress have no authority to interfere in emancipation of slaves or in the treatment of them within any of the States; it remaining with the several States alone to provide any regulations therein, which humanity and true polity may require.”

This was a perilous and critical time--a time of trial for the new Constitution--when the States, watchful and alert, were jealous of their rights, and the Quakers’ action was regarded by many as a flagrant violation of those rights. Washington considered their petition inopportune, especially as the question had been recently disposed of and was contained in an article of the Constitution, and so expressed himself in a letter: “The memorial of the Quakers [and a very malapropos one it was] has at length been put to sleep, and will scarcely awake before the year 1808.” However, the Quakers’ attitude was not equivocal, as was that of the Puritan New Englander. Their petition grew from earnest convictions--convictions which were deep-rooted before they came to America, for they had expressed their repugnance to the English slave trade in 1671, and after coming to America had discouraged participation in slavery as early as 1696; in 1776 they placed their ultimatum upon it by excluding from membership any Quaker slaveholder.

This constitutional extension of the slave traffic closed all possibility of the question ever being settled amicably. Short-sightedness can scarcely be charged to those responsible, for at that time there was no thought of an acquisition of territory on the south and southwest, and the cultivation of cotton was still in its infancy. Before another decade Eli Whitney had invented the cotton-gin; this gave an impetus to the growing of cotton; agriculture in the South was revolutionized. To make way for the industry Georgia ceded her western territory to the United States and a tide of Southern immigration from the older centers of Virginia and the Carolinas rapidly flowed into Alabama and Mississippi. The wanderlust of a hardy, pioneer ancestry was in these men’s veins. Accompanied often by gentle families, their household goods, and their negroes they started overland. By long and tedious journeyings, across mountain, stream, and swamp--through seemingly boundless stretches of majestic pines--sometimes encountering hostile Indians and again exchanging friendly courtesies with the friendly Choctaws and Chickasaws, they reached the new frontier, and established themselves along the river courses. Others came by sailing vessels, and passing through the French and Spanish cities of Pensacola, Mobile, and New Orleans, followed the river courses into the interior. The log cabins which sprang up in the wilderness, were soon supplanted by comfortable, substantial homes frequently built of brick made upon the plantations or of hand-hewn lumber; each became a nucleus of activities around which all things necessary for the maintenance of life were produced. On the well-ordered plantations the African was not only field laborer and faithful domestic, but became cobbler, mason, carpenter, and a spinner and weaver of cotton and wool. In this virgin region, far removed from the life and influences of the older States, there grew up a vital and mutual dependence between master and slave; as such, each was necessary to the other; but it was not a combination out of which sentiments for the ultimate freedom of the negro were apt to grow; and it was these who were farthest removed from the later machinations of the Abolitionists, who were most bitter and strenuous in their opposition. In this close relation which in all but rare exceptions was a kindly one, the Southerner came to know the negro as the negro then could not know himself, realized his limitations, directed him along useful lines, and knew how rapidly he would revert were the civilizing and humanizing influence of slavery as it existed in the South removed. In later years when Southerners stood before a questioning world, there was no sophistry in the protests of those who declared that slavery was beneficial, and it was an argument resting upon truth that the Southern negro’s condition was happier than that of the laboring classes in other parts of the world.

European events also conspired towards an extension of slavery. After the French troops, already depleted by yellow fever, were defeated by the negro insurgents at San Domingo, Napoleon realized the uncertainty of France retaining the great Louisiana Territory which had been but recently repossessed from Spain. To circumvent the English, who had long coveted this domain, Napoleon, in 1803, offered it to the United States for fifteen million dollars. American settlers along the Mississippi had already experienced difficulties with the Spanish who claimed complete control of the Mississippi River south of the Yazoo, and though Congress had been given no constitutional prerogative for acquiring new territory, Jefferson, who was then President, saw the varied importance of this acquisition, and successfully and with very little criticism directed the negotiations. This brought into the United States, not only a vast terra incognita, but an extensive Franco-Spanish civilization stretching along the Gulf of Mexico, with French outposts scattered along the great river systems and reaching into the very heart of America.

The divergence of this civilization from that of English colonization was not only racial, but its tone had been qualified by the spirit in which the settlements had been made and the polity adopted by each. It possessed nothing of New England’s austerity, or of Virginia’s somewhat stolid stateliness, but was characterized by a graceful picturesqueness and a delightful bonhomie. The black-robed priest if not the pathfinder who blazed the way for French settlements was usually the comrade and companion of those who did. Religion and settlement went hand in hand. None of the torturing and enslaving methods used by the Puritans to force upon the natives a cold, stern religion, unattractive even to other Christian sects, or by the Spanish in Mexico and Florida, were resorted to by the French. Wherever there was a priest, Mass began the day. The mystic ceremony, performed in the dewy freshness of early morning within the forest’s depths, or on a strip of sandy beach beside the mighty waters; the solemn gestures of the celebrant and the adoring attitude of the worshippers appealed to the Indian imagination, and the French were soon importuned to invoke their Great Spirit to aid the red man, to bring rain or to heal the sick or wounded.

From Mobile, the oldest and for many years the chief French settlement, the genius of Iberville and Bienville Lemoyne, aided by ardent and indefatigable missioners, reached out to remote Indian tribes, conciliating and binding them as allies. They dealt fairly with the Indian, but in cases of treachery used the Indian’s own method of punishment. From the Indians they also adopted the custom of making slaves of hostile captives. Negro slavery also existed in these settlements from very early years, for in the quaint baptismal register of 1704-1778, forming a part of the archives of the Catholic Cathedral of Mobile, is recorded the baptism of two negro children belonging to Bienville in 1707, and in the same year a negro woman belonging to him bore the first negro child born on the Gulf coast.[11]

Gold was not found, nor did the French settlements on the Gulf lay in the wake of the treasure-ladened Spanish galleons, but the climate was benign, the lands rich, and the forests afforded an abundance of food, and in times of scarcity Bienville sometimes quartered his soldiers among the friendly natives. There was leisure for the amenities, and the priest and nun who had given up life and ambition in the Old World were not only the spiritual advisers and educators of the young of New France, but as missioners guided and instructed the Indian and the slave. Their institutions became asylums for the sick and desolate of any race, and to their influence may be traced the easy, happy condition of the negro slave among the French of Louisiana. There was that in the temperament of these French which while appropriating the Indian’s and negro’s usefulness at the same time beguiled and won them. An incident of a slave’s heroic loyalty to the French is related by Gayarré in his _Louisiana_. After the French settlements passed under Spanish control, New Orleans revolted, and the leaders were sentenced to be shot; Jeannot the negro hangman cut off his right arm rather than raise it against a Frenchman.

In March, 1724, Bienville issued a code, one clause of which forbade marriages between whites and blacks. Such marriages had taken place, and had given rise to what afterwards became an extensive Afro-Latin population. In many places along the Gulf coast it is among these so-called Creoles who have clung to their original habitations along the river banks, the creeks, and bays, that the old French names are found and a patois spoken. The result of this amalgamation did not seem mongrel, but distinctive, and in their local history, covering two hundred years, during which time they have lived under five different flags, there has been a pride of race which has kept the original strain pure. Deeply religious, they have been characterized by honesty, frugality, and industry. They were never slaves, but were in many instances slave owners.

A Société des Amis des Noirs had been formed in Paris, in 1788. Its object was to end the slave trade and slavery, especially in San Domingo from which came many reports of cruelty and oppression. A little later, France in establishing the rights and equality of man passed through her awful revolution. Though Louisiana was in constant touch and sympathy with France, among her peaceful, pleasure-loving people no sentiment about negro freedom or equality seems to have been evolved. When this great territory passed into the United States, it carried with it its institution of slavery, which, established as it was in the habits and thoughts of these people, strengthened slavery’s hold upon the South, pushed further away, and complicated with added difficulties the fulfillment of the hope of those great Southerners who had looked for its gradual and peaceful termination. In the government of this new territory we again meet with the large vision of Jefferson and his desire to curtail slavery. Outside importations were forbidden, and only slaves who had been brought to this country before 1798 could be carried by their masters for the purpose of settlement into Louisiana. All others carried in would be freed and the penalty for each offense would be three hundred dollars.

To prepare the seafaring interests for the statute of 1808, and to lead American sentiment to its acceptance, Congress in the early part of the same year (1803) prohibited after April 1, 1803, the importation of any persons of color, or the entry of any vessels containing such persons into those States whose laws already debarred such importation. Indians were not included in this prohibition. The penalty for the first violation was a fine of one thousand dollars for every such person, one half to be appropriated to the United States and the other to be given to the informer. For the latter offense, the vessel and all appurtenances were to be confiscated by the United States, one half the net proceeds to be given to such “person or persons on whose information the seizure of such forfeiture shall be made.”[12]

When New Jersey abolished slavery in 1804, this statute obtained in all the Northern States. In their economy slavery was an incubus. This statute imposed no financial sacrifice on individuals, for in most cases the relatively few slaves had been transferred and sold in the South. Though there were threatening party differences, as yet there seems no general feeling against slavery in those States to which it was peculiar, and such sentiments as were entertained were more abstract than those common in the South itself.[13] Many Northern fortunes had been built upon the slave trade; though prohibiting the importation into their own States, numbers were still actively engaged in the traffic--and the Southern States were the only ports legally open to them, for an act forbidding the direct or indirect importation of slaves into foreign countries had become a United States statute in 1794. The South itself seldom engaged in this traffic--it was a degradation to which her aristocratic tendencies could not stoop; a “nigger-trade” was taboo; and though slave vessels plied to and from her ports, they were usually a part of Yankee enterprise.

Jefferson, to whom the question had so long been a momentous one, welcomed the time when the traffic would end, and in his sixth annual message to Congress, December 2, 1806, rejoiced “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 so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best interests of the country have long been eager to proscribe.” With the first of January, 1808, it became unlawful for any person of color to be imported into the United States or her territory; any person aiding or abetting such traffic to be fined five thousand dollars; also “any citizen of the United States, building, fitting out, equipping, loading or otherwise preparing or sending away any ship or vessel, knowing that the same shall be employed in such trade or business” shall pay twenty thousand dollars, a part to go to the United States and another to any person or persons who shall prosecute the offender. Every vessel found engaged in the traffic was to be “seized, prosecuted, and condemned in any of the circuit courts or district courts where the said ship or vessel may be found or seized.” The President was authorized to use the naval and revenue forces to enforce the statute. They were to cruise on the coast of the United States and her territories; to seize and bring to port vessels contravening the provisions of the act, the captain or commander to be prosecuted before any court of the United States having jurisdiction thereof; and if convicted to be fined not more than ten thousand dollars, and to be subject to imprisonment to not more than four years.[14]

These and further enactments of a like nature ended constitutionally the slave traffic in the United States. Many New Englanders had nothing further to gain; there was no legitimate financial emolument now standing between them and a realization of the ethical side of the slave question. Instead of lending a conservative help to those of the South who hoped by gradual and conciliatory methods to loose slavery’s growing hold upon their institutions, through a curious psychological metamorphosis they began to look askance upon the South and its institution of slavery, and to affiliate in thought with the abolition movement which under Clarkson, Wilberforce, and others was stirring England; forgetting in their zeal that the wrongs which Clarkson and Wilberforce were championing were the wrongs of which England and New England as slave traders had been the chief perpetrators. This growing sentiment was seized upon by politicians and played upon for party purposes. It was with increased apprehension that they saw the extension of the slave interests which the purchase of Louisiana had necessitated, and the further representation these interests would be given as new States were formed from the slave territory. For a decade this jealousy was kept within safe bounds by any preponderance of representation being checkmated and balanced by the formation of a Free State. Yet this feeling was becoming rapidly contagious, spreading to many who had not previously thought of slavery, or who regarded it as a domestic policy to be settled by the Slave States individually and exclusively. With the development of the Missouri controversy, the temperamental divergence born of several centuries of turmoil and turbulence in England, and too deep-rooted to be really dead, roused from the anesthesia of united effort against a common enemy and a subsequent enthusiasm for Union, and stood forth definitely defined as North and South. Forgetful of the give and take necessary for the harmonious existence of polities as of individuals, the country was still not large enough or the political interests sufficiently varied, for such differences to be conducive to well-being. In his Presidential farewell Washington warned his countrymen against a geographical division of interests: “In contemplating the causes which may disturb our Union, it occurs as a matter of serious concern, that any ground should have been furnished for characterizing parties by _geographical discrimination_, ... northern and southern ... Atlantic and western; whence designing men may endeavor to excite a belief that there is a real difference of local interests and views. One of the expedients of party to acquire influence within particular districts is to misrepresent the opinions and aims of other districts. You cannot shield yourselves too much against the jealousies and heart-burnings which spring from these misrepresentations; they tend to render alien to each other those who ought to be bound together by fraternal affection.” To Jefferson, aged and waiting, this Missouri controversy and its adjustment, was the alarum in which he heard the death-knell of the Union, and in a letter to John Holmes, dated Monticello, April 22, 1820, he so expresses himself: “I thank you, dear sir, for the copy you have been so kind as to send me of the letter to your constituents on the Missouri question. It is a perfect justification to them. I had for a long time ceased to read newspapers, or pay any attention to public affairs, confident they were in good hands, and content to be a passenger in our bark to the shore from which I am not far distant. But this momentous question, like a fire-bell in the night, awakened and filled me with terror. I considered it at once as the death-knell of the Union. It is hushed indeed, for the moment. But this is a reprieve only, not the final sentence. A geographical line, coinciding with a marked principle, moral and political, once conceived and held up to the angry passions of men, will never be obliterated; and every new irritation will mark it deeper and deeper. I can say, with conscious truth, that there is not a man on earth who would sacrifice more than I would to relieve us from this heavy reproach, in any practical way. The cession of that kind of property (for so it is misnamed) is a bagatelle, which would not cost me a second thought, if in that way a general emancipation and _expatriation_ could be effected; and gradually, and with due sacrifices, I think it might be. But, as it is, we have the wolf by the ears, and we can neither hold him nor safely let him go. Justice is in one scale and self-preservation in the other. Of one thing I am certain, that as the passage of slaves from one Free State to another would not make a slave of a single human being who would not be so without it, so their diffusion over a greater surface would make them individually happier, and proportionately facilitate the accomplishment of their emancipation, by dividing the burden on a greater number of coadjutors. An abstinence, too, from this act of power, would remove the jealousy excited by the undertaking of Congress to regulate the condition of the different descriptions of men comprising a State. This certainly is the exclusive right of every State, which nothing in the Constitution has taken from them, and given to the General Government. Could Congress, for example, say that the non-freemen of Connecticut could be freemen, or that they shall not emigrate to another State?

“I regret that I am now to die in the belief that the useless sacrifice of themselves of the generation of 1776, to acquire self-government and happiness to their country, is to be thrown away, by the unwise and unworthy passions of their sons, and that my only consolation is to be that I shall not live to weep over it. If they would dispassionately weigh the blessings they will throw away against an abstract principle, more likely to be effected by union than by scission, they would pause before they would perpetrate this act of suicide on themselves, and of treason against the hopes of the world. To yourself, as the faithful advocate of the Union, I tender the offering of my high esteem and respect.”