Navigating the Dangerous Atlantic

Permanent Link: http://ufdc.ufl.edu/UFE0042328/00001

Material Information

Title: Navigating the Dangerous Atlantic Black Sailors, Racial Quarantines, and U.S. Constitutionalism
Physical Description: 1 online resource (319 p.)
Language: english
Creator: Schoeppner, Michael
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2010


Subjects / Keywords: atlantic, citizenship, constitution, rights
History -- Dissertations, Academic -- UF
Genre: History thesis, Ph.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation


Abstract: This dissertation explores the transnational conversations over the detainment of nominally free people of color who violated the Negro Seamen Acts. These Acts, which were implemented across the Slave South and in Cuba and Puerto Rico during the mid-nineteenth century, barred the entry of all free black sailors, regardless of nationality. In many of these jurisdictions, the laws mandated immediate imprisonment. Law enforcement officials boarded ships from around the Atlantic, chained people of color, and hauled them to jail. These arrests and confinements initiated heated transnational debates about the rights of citizens and subjects, the extent of sovereignty, and the constitutional interface between federal power to regulate commerce and state policing authority. The uneven emancipations of the Atlantic World created a vast incongruence over the rights and status of people of color. Individual locations wrestled with the exact legal and political status that people of color should occupy. So when free sailors of color trekked across a half-slave, half-free Atlantic World, they exposed the asymmetry of rights and status and precipitated transnational conversations over the legality of the Seamen Acts and the meaning and extent of citizenship and subjecthood. In London, New Orleans, Charleston, Cuba, Paris, and Washington, high political figures, judges, newspaper editorialists, ship captains, consular agents, and the sailors who were incarcerated fought over the transferability of rights and exposed the fluidity of status and rights. In the end, these conversations influenced several key constitutional developments in the United States.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Michael Schoeppner.
Thesis: Thesis (Ph.D.)--University of Florida, 2010.
Local: Adviser: Dale, Elizabeth.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2010
System ID: UFE0042328:00001

Permanent Link: http://ufdc.ufl.edu/UFE0042328/00001

Material Information

Title: Navigating the Dangerous Atlantic Black Sailors, Racial Quarantines, and U.S. Constitutionalism
Physical Description: 1 online resource (319 p.)
Language: english
Creator: Schoeppner, Michael
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2010


Subjects / Keywords: atlantic, citizenship, constitution, rights
History -- Dissertations, Academic -- UF
Genre: History thesis, Ph.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation


Abstract: This dissertation explores the transnational conversations over the detainment of nominally free people of color who violated the Negro Seamen Acts. These Acts, which were implemented across the Slave South and in Cuba and Puerto Rico during the mid-nineteenth century, barred the entry of all free black sailors, regardless of nationality. In many of these jurisdictions, the laws mandated immediate imprisonment. Law enforcement officials boarded ships from around the Atlantic, chained people of color, and hauled them to jail. These arrests and confinements initiated heated transnational debates about the rights of citizens and subjects, the extent of sovereignty, and the constitutional interface between federal power to regulate commerce and state policing authority. The uneven emancipations of the Atlantic World created a vast incongruence over the rights and status of people of color. Individual locations wrestled with the exact legal and political status that people of color should occupy. So when free sailors of color trekked across a half-slave, half-free Atlantic World, they exposed the asymmetry of rights and status and precipitated transnational conversations over the legality of the Seamen Acts and the meaning and extent of citizenship and subjecthood. In London, New Orleans, Charleston, Cuba, Paris, and Washington, high political figures, judges, newspaper editorialists, ship captains, consular agents, and the sailors who were incarcerated fought over the transferability of rights and exposed the fluidity of status and rights. In the end, these conversations influenced several key constitutional developments in the United States.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Michael Schoeppner.
Thesis: Thesis (Ph.D.)--University of Florida, 2010.
Local: Adviser: Dale, Elizabeth.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2010
System ID: UFE0042328:00001

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2 2010 Michael Alan Schoeppner


3 To MAS and RMM


4 ACKNOWLEDG MENTS I would like to thank the members of m y supervisory committee, especially Elizabeth Dale and Jessica Harland Jacobs, for their mentoring and criticism during the course of this project. I would also like to thank the College of Liberal Arts and Sciences and the Department of History for their generous financial support. Librarians and archivists at the New Orleans Public Library, the South Carolina Department of Archives and History, the Library of Congress, the National Archives, and the University of Florida were instrumental in the complet ion of this dissertation.


5 TABLE OF CONTENTS page ACKNOWLEDGMENTS ................................ ................................ ................................ ............... 4 ABSTRACT ................................ ................................ ................................ ................................ ..... 6 CHAPTER 1 PREFACE ................................ ................................ ................................ ............................ 8 2 THE RE EMERGENCE OF THE DANGEROUS ATLANTIC: THE TRIALS OF DENMARK VESEY AND THE FIRST SEAMEN ACT ................................ ................. 18 3 THE FIRST YEAR OF ENFORCEMENT: CALDER, ELKISON, AND THE SOUTH CAROLINA ASSOCIATION ................................ ................................ ........................... 41 4 LEGITIMATING RACIAL QUARANTINES: THE JACKSONIAN MANIPULATION OF GIBBONS V. OGDEN ................................ ................................ ................................ 89 5 THE EXPANDING SEAMEN ACTS: DAVID WALKER, BRITISH POLITICS, AND THE JACKSON ADMINISTRATION ................................ ................................ ........... 114 6 THE IMPLICATION OF LEGISLATIVE DISCRETION: BRITISH EMANCIPATION, AMERICAN ABOLITIONISTS, AND THE ENSHRINEMENT OF POLICE POWER, 1832 1838 ................................ ................................ ................................ ........................ 157 7 EXPANDING SUBJECT AND CONSTRICTING CITIZEN: BRITISH ABOLITION, NICHOLAS TRIST, AND THE CUBAN SEAMEN ACT ................................ ............ 188 8 FROM CONGRESSIONAL CONTEMPLATION TO INTERSTATE DISASTER ..... 214 9 A SERIES OF ANTICLIMAXES: THE DEATH AND RESURRECTION OF THE SEAMEN LAWS, 1847 1859 ................................ ................................ ......................... 264 10 EPILOGUE: DRED SCOTT, REENACTMENT, AND SECESSION ........................... 298 BIBLIOGRAPHY ................................ ................................ ................................ ........................ 303 BIOGRAPHICAL SKE TCH ................................ ................................ ................................ ....... 319


6 Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy NAVIGATING THE DANGEROUS ATLANTIC: RACIAL QUARANTINES, BLACK SAILORS, AND UNITED STATES CONSTITUTIONALISM By Michael Alan Schoeppner December 2010 Chair: Elizabeth Dale Major: History This project is a history of the Negro Seamen Acts, a series of laws prohibiting the ingress black sailors into particular jurisdictions during the antebellum period Beginning in South Carolina in 1822, these laws implemented race as a mode of quarantine, hoping to prevent the tions. North Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas eventually passed similar laws, varying in severity. For a short time, Cuba and Puerto Rico also closed their ports to sojourning black sailors. For white lawmakers in s lave societies during the Era of Emancipation, these laws were essential in preserving the racial status quo in their own jurisdictions from the nefarious effects of the Dangerous Atlantic. The enforcement of the Seamen Acts initiated fierce debates in a number of political and legal forums, and this dissertation attempts to reconstruct these debates. Pulling from international consular and diplomatic correspondence, state and federal legislative documents in the United States, court decisions, abolition ist publications, and popular periodicals, this dissertation argues that the commentary on the Negro Seamen Acts played a formative part in specific legal and political developments in the United States. In particular, this dissertation


7 argues the interst ate and international conversations regarding the Seamen Acts shaped the contours of federal commercial regulatory authority, the limits of state policing powers, and, most importantly, conceptualization of U.S. citizenship. International politics are inst rumental in the stories that follow. The uneven emancipations of the Atlantic World created a definitional incongruence of rights and citizenship among nations wrestling with the political and legal status of people with black skin. And the interconnecte d Atlantic World meant that a change in status in one jurisdiction opened the discursiv e floodgates across the littorals and had the potential to influence r acial policies and conceptions of citizenship in other polities Thus, when sailors of color enter ed jurisdictions with Seamen laws in place, their treatment forced commentators across the Atlantic to ruminate about the exact process by which people of color became formally integrated into the constitutional bodies politic of the nineteenth century Atl antic World.


8 CHAPTER 1 PREFACE The Atlantic Ocean of the early nineteenth century represented both an avenue of opportunity and a potential for catastrophe. For free African Americans, the sea afforded a respite from the brutality of segregation, disf ranchisement, and economic marginality. The decent wages, the rugged equality of tar life, the ability to see worlds beyond and better than the ones they left behind motivated many African American men to choose a life at sea. But the wider Atlantic World also contained places far worse than the ones the sailors called home. Mariners often visited the sugar islands, cotton plantations, and other slave societies where the small modicum of liberty they enjoyed were completely absent for people of color Worse yet, very little protected the colored deck hand from a life in chains. An unscrupulous, greedy captain and a local slave marketer, if they were not intimidated by laws outlawing the slave trade, could quite easily transform a free man into a sla ve. For black sailors, the line that separated freedom and slavery was magnificent, but it could be erased with ease while on the open sea. For white Southerners, the Atlantic was also a dangerous but lucrative entity. Distant markets, the lands where p lantation staples metamorphosed into money and credit, could only be reached via the Atlantic. But that same boulevard to wealth could also bring havoc. The Age of Revolution unleashed powerful ideas of equality and liberty that undermined the racial and social orthodoxies of Southern plantation life. These ideas, if unleashed upon and adopted by otherwise ignorant slaves, could precipitate cataclysmic changes in Southern society. To protect the racial status quo, various slave jurisdictions adopted pec uliar forms of quarantine hoping to sequester domestic slaves from Atlantic ideologies of liberty and freedom. Believing black sailors to be natural conduits of dangerous ideologies, slave states outlawed their


9 entry on pain of impriso nment, or in some places, enslavement. Commonly referred to as the Seamen Acts, these laws against black sailors sought to continue the profitable aspects of Atlantic exchange while simultaneously averting racial insubordination. Perceptions of the Atlan tic, both as benefactor and malefactor, lured free black sailors to slave jurisdictions and inspired laws restricting their movements once they arrived. When the first of these quarantines went into effect in South Carolina in 1822, it precipitated a host of vexing questions, the most pressing of which centered on the U.S. Constitution. What was the exact relationship between state and federal power in the United States? Was race akin to cholera or yellow fever in terms of its eligibility as a subject of quarantine? What rights did people of color carry with them from their home jurisdictions? These questions plagued jurists and politicians for nearly forty years. This project seeks to illuminate the various answers that emerged over the course of the S looks to the courts, legislatures, diplomats, and the sailors and their representatives. It hopes to show that the Seamen Acts played a critical role in the articulation of important constitutional ideas. Taken together, the chapt ers that follow have three primary objectives. First, they seek to situate the Seamen Acts into the larger narrative of antebellum United States history. This aim is mostly implicit, and with the exception of this p aragraph, it will remain in the backgro und of the pages that follow. Some historians who have looked at the Seamen Acts debates have considered them tempests in teapots, inconsequential laws reflecting over reactive Southern slaveholders in near hysterics over the perceived threat to the slave system. In large part, this project attempts to alter that perception. Granted, the Seamen Laws were typically the manifestation of unfounded paranoia, but the results of this codified fear were real. There were


10 dramatic consequences. At the most obvio us level, these laws caused thousands of sailors to languish in Southern jailhouses, some for days, other for weeks and months, and for a few, years. Some faced the lash in addition to imprisonment, even though state sanctioned corporeal punishment was us ually reserved to those in bondage. Still others faced an incipient form of convict labor. Though scattered and sparse, letters from incarcerated seamen illustrate the draconian effects of the law, especially for those unfortunate mariners who were under the employ of an unscrupulous captain. If for no other reason, the stories of these incarcerated seamen demands that attention be paid to the Seamen Laws. In hopes of connecting the personal experiences of incarcerated sailors to larger political issues, my second goal is to illustrate the vital importance of the Seamen Acts controversies to constitutional developments in the United States, and in two areas in particular. First, the Seamen Laws had a tangible impact on the contested boundary between stat e police powers and federal authority to regulate interstate and international commerce. By couching the Seamen Acts in terms of quarantine, Southern legislatures attempted to circumvent federal intervention on Commerce Clause grounds. Since the federal government had long since honored the power of the states to restrict the entrance of paupers, the infirm, and the diseased, Southern lawmakers quarantine. J ust like a person infected with cholera, a free black from Atlantic waters threatened the health and welfare of the (white) citizens within the state. The same logic, codifiers of racial quarantines professed, that allowed New York to isolate a traveler i nfected with yellow fever powerful to counteract, so powerful indeed, that the Supreme Court never denied the constitutionality of racial quarantines, even as i t sought, at times, to enhance federal power over


11 commerce and streamline interstate and international trade. The hullabaloo over racial quarantines and throughout the pages that follow, I treat racial quarantines and the Seamen Acts as synonyms contr ibuted to the vague boundary between federal commercial power and state police authority during the antebellum period. In several places in the succeeding pages, I l power to illustrate the potential impact a change in doctrine might have for those with a stake in the continuation or destruction of the Seamen Acts. Even more directly, the implementation of seamen restrictions led directly to an alternative way for an tebellum jurists to formulate citizenship. During the early and mid nineteenth construction and in its application on the ground. The individual states we re in the process of answering provocative questions about the nature of sovereignty and liberty in a federated republic. Who were citizens, and why? What rights were reserved specifically to citizens, and what rights were extended to all people? Of cou rse, race was the fulcrum on which many of these questions turned. But the Seamen Acts took race beyond the individual states and forced antebellum jurists to consider both the contours of federal citizenship and the nature of interstate comity. What the Seamen Acts did, in short, was force the federal government to investigate the intersection of race and citizenship on a grand scale, and the results altered the very conception of citizenship and prefaced the most notorious Supreme Court decision in Amer ican history. My third and final aim in this project is to illustrate the necessity of a transnational perspective in charting the preceding changes in constitutional history. The Seamen Acts made no mention of nationality or citizenship; they specificall y aimed to prevent Atlantic savvy sailors from entering the South and jeopardizing the slave system and racial hierarchies. In their very


12 language, the laws downplayed national borders and questioned the primacy of national affiliation in the identificati on of individuals. As a result mariners from Britain, Portugal, Spain, France, the Caribbean, South America, New York, Massachusetts and other Atlantic places all faced incarceration for violating racial quarantines. This set off a series of diplomatic p roblems with Spain, France, and especially Great Britain. For British diplomats in particular, the end of colonial slavery inspired rigid resistance to the Seamen Acts, and British sailors, diplomats, and consuls were the primary culprits in forcing the U .S. federal government to engage the constitutional development is impossible to tell without a transatlantic perspective. The uneven emancipations of the Atlantic World created a definitional incongruence of citizenship among nations wrestling with the political and legal status of people with dark skin. And the interconnected Atlantic World meant that a change of status in one jurisdiction opened the discursive f loodgates and caused new theories of citizenship and subjecthood to emerge. In most instances, the implementation, modification, and repeal of the various Seamen Laws can be directly attributed to the interplay between political regimes in Great Britain a nd the United States. My aims have led me to an unlikely array of sources. As in any constitutional study, this one pays close attention to the official actions of courts and legislatures, both at the state and federal level. It also refers to other, u nofficial or nonbinding legal sources, like independently published legal treatises and the opinions of state and fede ral attorneys general. It references newspapers and other periodicals, including those published by abolitionists. In fact, abolitionist literature is largely responsible for sensationalizing the plight of free black sailors and pressuring federal officials to continue to consider the Seamen Laws, usually against their better political


13 judgment. This study also examines diplomatic corresp ondence, especially the conversations of British diplomats and consuls with each other and with state and federal officials in the United States. In these sources, competing ideas about the nature of citizenship and subjecthood played out and profoundly i nfluenced U.S. constitutional history. This study is not the first to look at the Seamen Acts to understand the antebellum period. To date, two studies have situated the Seamen Acts at the center of their analyses. Back in 1930s, Philip Hamer published t wo articles in the inaugural volume of The Journal of Southern History Relying primarily on British correspondence the same series of letters that form a large portion of the primary materials in this study Hamer constructed a narrative to show how one of British success, with British Consuls securing liberaliza tion of the Seamen Laws in work is impressive; and e very subsequent historian who mentions the Seamen Acts cites Hamer and draws conclusions from his perceptive ana lysis. 1 the point Hamer identifies as the turning point in British diplomacy obscures the often haphazard policies of British officials in London and Washington. Both before and after 1848, British officials protested to federal officials and state authorities; individual Consuls often acted independently before contacting their superiors, so metropolitan directives did not translate into an airtight policy on the ground. In some cases, individual Consuls determined metropolitan policy. However, and Hamer is 1 The Journal of Southern History 1 (February1935): 3 Seamen Acts, 1850 The Journal of Southern History 1 (May 1935): 138 168.


14 elliptical in this regard, changes at the highest levels of British government directly determined the mode of diplomatic attack. For the most part, Tory and Conservative Ministries preferred quiet engagement with local officials, while reform oriented Whig Ministries opted for direct engagement and overt gestures. of the United States Constitution was not an independent variable over the course of the Seamen evolving debates over federal state relations. Nullification, for example, is not even mentioned. The political worlds in Grea t Britain and the United States were not fixed, and the massive changes occurring in both arenas dictated the historical trajectory of the Seamen Acts. The 1830s are a case in point. T hat decade is well known to American scholars of race and law as an u nfortuna te time for free African Americans, a time when their role in the political and civic sphere changed for the worse under the weight of Jacksonian democratization. Yet, scholars of the British Empire would summarize the 1830s quite differently, as At the intersection of these diverging trajectories were black sailors and the Seamen Acts. And during this decade, some of the most impo rtant (and contentious) constitutional ideas were first formulated. The other scholar to tackle the Seamen Acts was Alan January, whose 1976 dissertation situated t h Carolinian politicians and their evolving political philosophies provides a powerful counterweight to Hamer


15 static presentation of American federalism. But January rarely ventured beyond the borders of the Palmetto State, nonetheless the United States. Moreover, his singular focus on federal relations in South Carolina restricts the geography these laws were in force across the South, even where Nullification was reviled and the scope of the debates. Utterly lacking is the interrelated issues of Af rican American citizenship and Afro British subjecthood. 2 Though January and Hamer are the only historians to make the Seamen Acts their analytical centerpiece, historians from a host of subfields have found useful the stories of black sailors and the law s incarcerating them. Social and cultural historians have stressed the experiences of the black sailor, both on the ocean and within the port cities where they often resided. Whether essential in the development of race or class, these historians note th e influence of black seamen in the construction of a particular culture or social structure, and the 3 Similarly, scholars examining free people of color in the antebellum United States have found the Seamen A cts useful. Most often, these historians deploy racial quarantines as passing pieces of evidence proving that Southern free Americans would not be protected in Southern jurisdi ctions. 4 Historians of the American South have also found 2 Diss. University of Iowa, 1976). 3 For example, see W. Jeffrey Bolster, Black Jacks: African American Seamen in the Age of Sail (Cambridge, Mass., 1997); Peter Linebaugh & Marcus Rediker, The Many Headed Hydra: Sailors, Slaves, Commoners, and the Hidden History of the Revolutionary Atlantic (Boston, 2000); Paul Gilro y, Black Atlantic: Modernity and Double Consciousness (Cambridge, Mass., 1993). 4 Leon Litwack, North of Slavery: The Negro in the Free States, 1790 1860 (Chicago, 1961): 50 55; Ira Berlin, Slaves without Masters: The Free Negro in the Antebellum South (Ne w York: 1978): 216; John H. Franklin, The Free Negro in North Carolina (Chapel Hill: 1943). See also H.E. Sterkx, The Free Negro in Antebellum Louisiana (Rutherford, N.J., 1972). Sterkx describes the multiple acts against free black sailors, foreign and domestic, but his primary aim in that discussion is to show how many law enforcement officers did not summarily follow the harsh letter of the law. The gap between the law and its enforcement provides evidence for Sterkx that, quite often, free blacks in New Orleans fared much better than their free counterparts across the rest of the South and tremendously better than the enslaved of Louisiana.


16 the Seamen Acts important, especially concerning the friction between state and national officials over the contours of federal power. Along these lines, studies underscoring the emerging philosop Seamen Acts useful. Considering this approach, it is little wonder that South Carolina in particular receives most of the attention. William Freehling is paradigmatic in this re gard. 5 Like January, he places the controversies over the enforcement of the Acts in a general chronology culminating in Nullification in 1832, but sees the Seamen Acts controversy as a South Carolina issue. Legal scholars, too, have found the Negro Seame n Acts to be illuminating, with two distinct themes predominating. The first involves the increasing power of the federal government in foreign relations and in interstate commerce during the first half of the nineteenth century. The first federal interv ention in the Seamen Acts occurred in an 1823 federal court opinion. That opinion foreshadowed parts of the landmark case of Gibbons v. Ogden and growth of the Com merce Clause or on the federal treaty making power, the entire Seamen Acts debate is reduced to the arguments in the1823 court case. 6 The second and more prevalent use of the Negro Seamen Acts by legal scholars is to illustrate the legal handicaps facing free people of color. As the legal counterparts to more mainstream histories by Leon Litwack and Ira Berlin, these works seek to explore the many ways that people of color were denied equal protection, 5 William Freehling, Prelude to Civil War: The Nullification Controversy in South Carolina, 1816 1836 (New York, 1965). 6 Most mainstream constitutional histories employ the Seamen Acts in this way. See Paul Finkelman and Melvin Urofsky, March of Liberty: A Constitutional History of the United States (London, 2002); R. Kent Newmyer, The Supreme Court under Marshall and Taney (New York, 1968); Newmyer, John Marshall and the Heroic Age of the Supreme Court Making and the Nation: The M ichigan Law Review 98 (Spring 2000); William Wiecek, "Slavery and Abolition Before the United States Supreme Court, 1820 1860," Journal of American History 65 (June 1978): 34 59.


17 and many of these studies culminate in Dred Scott 7 This study, too, culminates in Dred Scott but it views citizenship federal citizenship as en evolving concept, with competing visions about its origins and limits. Citizenship was a pliable term, and the Seamen Acts debates provided a unique forum fo r people to test their theories about the connection between race and rights. Historians have cited the Negro Seamen Acts as evidence for the development of race and class consciousness, the intricacies of US Great Britain relations, the contentious iss ue of nullification, and the limitations forced on free blacks in the Old South. The vast majority deals entirely with the initial Seamen Act of South Carolina and the immediately ensuing fracas over ted timeframe of most legal histories and the circumscribed geographical and conceptual boundaries of January and Hamer, it seems appropriate that racial quarantines be reexamined in a transnational context as a primary locus of study. It is the purpose o f this study to do just that. 7 A.L. Higginbotham, In the Matter of Color: Race and the American Legal Proc ess (London, 1978); Rogers Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, Conn., 1997); Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (Princeton, N.J., 1996); N egro and the South Carolina Courts, 1790 The South Carolina Historical Magazine 68 (July 1967): 140 153. For the relationship of the Seamen Acts to Dred Scott see Don Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (London, 1978); Carl Swisher, Roger B. Taney (New York, 1935); Austin Allen, Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court, 1837 1857 (Athens, Ga., 2006). A third theme might also apply. One scholar integrates the Seamen Acts into the issue of remained a power of the states, where restrictive legislation usually applied to international as well as intersta te Columbia Law Review 93 (December 1993) 1833 1901.


18 CHAPTER 2 THE RE EMERGENCE OF THE DANGEROUS ATLANTIC: THE TRIALS OF DENMARK VESEY AND THE FIRST SEAMEN ACT For white South Carolinians, the 1790s first highlighted with glaring focus the ambiguity of the imagined Atlant ic. The great sea offered promises of wealth and material comfort. It bro machine which made it so valuable. The Atlantic also deposited in Charleston saltwater slaves from West Africa and the West Indies, who quickl y supplied the labor source so vital for the expansion of cotton production. Slave merchants in Charleston found their human merchandise in great demand as the cotton revolution swept the Carolina lowcountry and beyond. The Atlantic also brought traders and merchants from around the littorals, and these men carried with them the latest wares and news, and exchanged the prior for the cotton that drove the textile industries in Britain and the Northern United States. The economic explosion of cotton was en tirely attributable to the Atlantic Ocean, which brought the seeds, the innovation, the labor, the investors, and the consumers to the Palmetto State. The Atlantic crowned King Cotton. 1 But the 1790s also unleashed for a moment, a disturbing undercurrent in the Atlantic. The French and Haitian Revolutions upset religious, economic, political and racial hierarchies, and the 1790s, the South Carolina elite wante d nothing to do with the political, economic, and racial leveling that came to be associated with the Jacobins in France and St. Domingue. Those revolutionaries inverted the natural order and sought to export their doctrines to the rest of the world. The same Atlantic that brought South Carolina increasing wealth also harbored dangerous ideas and people capable of destroying the very society the South Carolina elite so 1 Angela Lakwete, Inventing the Cotton Gin: Machine and Myth in Antebellum America ( Baltimore 2003); Walter Fra ser, Charleston! Charleston! The History of a Southern City (Columbia S.C. 1989).


19 closely maintained and cultivated One event in particular illustrates these dual, oft en competing perceptions of the Atlantic and prefaces the Seamen Act controversy In 1793, w hen the vessel Maria arrived from Cap Franaise, S t Domingue, it was quarantined for fear that French and Haitian Revolutionaries, especially a Republican office revolutionaries in Charleston sought the support of local Federalists in order to maintain the quarantine and prevent the disembarkation of the dangerous ideologies of Jacobinism and rac ial equality. French Royalists and moderates in Charleston employed cataclysmic language in describing the potential bloodshed in South Carolina if the contents of the Maria were unloaded on Charleston. South Carolina Federalists, already in firm support of Britain in its war against the anarchistic, murderous, and atheistic leaders of the French Republic, Maria and its do quit the harbour and state 2 The powerful visual effect of the Maria sitting off port dovetailed with the rhetorical maneuvering of the Federalists to produce a general state of apprehension in Charleston. The sensationalism was difficult to contain or combat. A week after these resolutions, the Governor of South Carolina which he called for the eviction of all recently immigrated free blacks from S t Domingu e, as Maria continued to sit in port, but at a safe distance, rumors circulated that slaves and free blacks were in revolutionary motion inspired by the Revolutionaries and pressed to Though investigations unearthed no conspiracy the 2 ed. The Impact of the Haitian Revolution in the Atlantic World ( Columbia, S.C. 2001): 93 111.


20 excitement surrounding the Maria and the anxiety of an impending slave revolt forced Francophile Jeffersonians to concede to the p ro British Federalists and send off the Maria even though the Sage of Monticello himself thought the rumors of invasion and upheaval were incredibly exaggerated if not totally fabricated 3 But the fear of insurrection in 1793 quickly vanished. The quara ntining of the Maria was an aberration growth Charleston remained firmly linked to the Atlantic and continued to be, as it had been in the preceding century, a quintessential A tlantic port city. German and Swiss servants, English planters, West African slaves, West Indian free black s and several other cultures littered the streets around the Charleston ports. B lack and white, rich and poor, native and immigrant live d and worke d in close proximity. Some of the wealthiest planter s in the South made Charleston their home, choosing the eclectic atmosphere of the port city over their disease ridden plantations in hy plantation owners however, classes. Taverns and shops lined city streets, and visitors were quick to no in the midst of the cotton explosion 4 Wa tering holes and scores of working 5 Charleston was a city that contained som ething for everyone, a modern 3 111. 4 Walter Fraser, Charleston! Charleston! chapters 2 3, especially 48 50. 5 Quotes from Louis Castiglioni and John Drayton, taken from Edward Pearson, Designs against Charles ton: The Trial Record of the Denmark Vesey Slave Conspiracy of 1822 (Chapel Hill, N.C., 1999): 40.


21 Babel of sorts. The diversity in the social spectr u m mirrored the diversity in ma terial culture available within the Charleston market as m erchants hawked wares from around the Atlantic. The local Gazette advertised Bristol beer, cheese from Rhode Island, Portuguese wines, Dutch cloth Virginian tobacco, and, of course, slaves. Charleston tavern keepers and merchants accepted a host of international currencies, from Spanish doubloons to Portuguese moidores and German johannes. Ships leaving 1822 Charleston headed for Cuba, South America, Barbados, and London carrying cotton, ric e, and indigo. The people of Charleston understood well the cosmopolitanism of their city. The Charleston Mercury proclaimed with earnest contentment and a touch of pride that in its city 6 Despite the occasional barroom brawl and tiffs among drunken sailors, Charleston was remarkably a city of relative peace for the first two decades of the nineteenth century The 1793 scare had vanished from the collective memory of the state. The soaring profits generated by the plantations and trading industries resulted in general peace in the midst of rapid growth, the Hired out slaves and free blacks were a constant sig ht in the city, but most Charlestonians considered their presence a boon evidence that Charle economy was doing well. The bustling economy of the 1810s had placed money in the pockets not only of plantation owners, merchants, and skilled white labo rers, but in those of free blacks and hired out slaves as well. And while the laws of the city and South Carolina alike showed no real changes regarding slaves and free blacks, de facto enforcement o f existing regulations indicated a general relaxation of the typically rigid racial codes. Slave patrols around the city often overlooked the congregation of slaves and free blacks in many of the tavern s near the 6 Charleston Mercury May 23, 1822. Pearson, Designs against Charleston 41.


22 wharves. Turning a blind eye to the existing curfew laws, patrolmen often having a stake in bus inesses near the wharves, including the lounges and saloons open to people of color refused to break up evening meetings of working men who were spending their hard earned wages Unfortunately, puttering as the 1810s came to a cl ose. The closing of the slave trade proved to be dramatic, as Charleston had been the premier corridor through which saltwater slaves were distributed to the rest of the slaveholding states. The loss of this market combined with increasingly volatile cotton prices to s low the pace of economic growth, with the cotton market hitting rock bottom in 1825. The once high prices that and the Panic of 1819 slowed investment. With job growth stunte d the population increases among urban slaves, free blacks, and unskilled whites translated into a tightening labor market. These groups increasingly realized that they were in competition with one another for scarce and coveted jobs, and this competitio n bred skepticism and distrust. Whites complained of free b lacks, hired out slaves and recent immigrants who often undercut them and caused a general decline in wages. The once celebrated cosmopolitanism of Charleston was beginning to show signs of frac ture; the rich ethnic mix was starting to rub c ertain workers the wrong way What the Atlantic wrought was celebrate d in times of feast but regrettable in times of famine. 7 But in 1822, the pervasive optimism of white Charlestonians had not yet evaporat ed completely The decades of racial quiet convinced Mayor Jame s Hamilton that a report regarding a possible slave conspiracy should be dismissed as mere c onjecture. But when a close friend informed Hamilton that his own slave confirmed the news regardin g an imminent insurrection the young mayor contact ed the city council and the governor to decide the proper 7 Pearson, Designs against Charleston Introduction.


23 course insurrection would not only be foiled, but the perpe trators caught in the act. Governor Thomas ly acquiesc e When no signs of disquiet surfaced on the suspected night, Mayor Hamilton was convinced that the rebels had been tipped off, proving the extensiveness of th network. Eager to save face (according to his detractors) or to ferret out the insurgents, but most likely both, Hamilton convened a special court to investigate the matter. 8 When this botch ed conspirac y occurred James Hamilton was just beginning a long political career that would include stints as a federal Congressman state governor, the central political tactician of Nullification, a leading voice pushing for the annexation of Texas, and a rabid secessionist in 1850 and 1860. Before taking the job as Charleston mayor, Hamilton was a partner in a local law firm with James L. Pe tigru, an upcountry academic turned lowcountry gentleman. The two men ran the former law office of the esteemed William Drayton, Jr., county judge and son of a Revolutionary hero and Continental Congressman. Though Hamilton and Petigru would prove to be avid adversaries in every major political event in antebellum South Carolina, the two men remained close friends, indicating the personal affability of both men. Back acumen had impeccable marriage to garner the attention of many important lowcountry politicians. 9 His fu ture seemed bright, was a double edg ed sword. If it could be shown that Hamilton acted rashly, imprudently calling in the militia and unneces sarily exciting the public 8 Robert Tinkler, James Ha milton of South Carolina (Baton Rouge, La., 2004): 43 44; James Hamilton, Negro Plot. An Account of the Late Intended Insurrection among a Portion of the Blacks of the City of Charleston, South Carolina (Charleston, S.C., 1822). 9 Tinkler, James Hamilton 40 55; William H. Pease & Jane H. Pease, James Louis Petigru: Southern Conservative, Southern Dissenter (Athens, Ga., 1995): 24 27.


24 and expending public monies then his budding political stature would be jeopardized amongst a largely unforgiving South Carolina decision to call out the militia may have saved Charle ston from utter ruin. he special court he convened had incredible legal leeway in investigating and prosecuting the alleged conspirators. Because South Carolina did not require courts to extend most due process protections to either slaves or free blacks, the investig ator s were able to arrest suspects without much of an evidentiary standard. Uncorroborated testimony and secret witnesses were often enough not only to press charges, but to convict as well. As a r esult, a rrests quickly mounted with well over a hundred slaves and free blacks facing the three municipal tribunals One hundred, twenty six arrests yielded sixty seven guilty verdicts, with nearly half of the convicts receiving the death penalty. In all t hirty five hanged, including one free black, the apparent ringleader, Denmark Vesey. The rest were either confined to the workhouse or banished from the state. One of the more intriguing cases was that of the free black Quash Harleston, who, though fo und not guilty, was still transported out of the country. 10 Alarmingly, the main conspi rators were disproportionately well off compared to nearly all other slaves and free blacks in the state. Skilled artisans affluent free blacks, and respected hous e se rvants of the most influential personalities in the state had been the apparent masterminds behind the revolt. Those with the most to lose were prepared to sacrifice it at least according to the findings of the court. 11 10 Edward Pearson, Designs against Charleston Appendix 2. 11 Considering present aims, the debate in the historiography con cerning the actual presence of a conspiracy and the veracity of the official sources is immaterial. For more thorough accounts of the conspiracy, see Douglas Egerton, He Shall Go Out Free: The Lives of Denmark Vesey 2 nd ed. (Lanham, Md., 2004); Michael P Vesey and his Co William and Mary Quarterly 58 (October 2001): 915 Journal of the Historical


25 The responses to the conspiracy and trial s were far from unanimous, even among the rather hom ogenous white elite of the city Before many of the trials even began, William Johnson, Associate Justice of the Supreme Court of the United States and U S Circuit Court Judge for South Carolina objected to the i nterrogations and believed overreacting city officials hastily jumped to unwarranted conclusion s regarding the plot. Johnson chose a subtle form of protest; he anonymously penned a letter turned Charleston Courier article in which he rec ounted a similar from the previous decade In this satiric anecdote, a n obstinate governor and a drunken bugler led to the incarceration and execution of an innocent slave. In that tragedy, Johnson explained, t he conviction of the slave allegory warned of the perils of overreaction and foreshadowed the convictions that the Charleston trial courts were about to hand down. Written as a thinly veiled critique of Hamilton who m Johnson belie ved to be too arrogant to accept the fact that the conspiracy was nothing more than hot air and the slave tribunals, the Courier article earned the scorn of city officials who were not 12 The city council and Hamilton r esponded with an extended diatribe against the theretofore anonymous writer of the article, to which Johnson replied, takin g responsibility for the effrontery and offering a half hearted apology. 13 in law, Governor Thomas Bennett objected as well. Despite his approval to use the militia, Bennett interpreted the quiet night as proof that no conspiracy was in the works. But Bennett may have not commented on the trials at all, choosing to distance himself from the whole fiasco if not for the fact that four of h is own house servants were being Society 4 (Fall 200 4): 291 Journal of Southern History 30 (May 1964):143 161. 12 Charleston Courier June, 21 1822. 13


26 investigated for participation in the conspiracy. Apparently curious as to the best defense for his property, B ennett appealed to his Attorney General for an explanation regarding the exact legal protec tions afforded to slaves and free blacks in cri bad news; slaves and free blacks in South Carolina only received due process protections in those instances where the court felt obliged to extend them Conside ring the political ramifications and public sensationalism surrounding these trials, those protections were not forthcoming Statutorily, they could not demand procedural safeguards. Though immaterial for Governor Bennett but interesting nonetheless the State Attorney General concluded his note to Bennett with a quick summary of the procedural due process rights of South Carolina fre e I have not separately considered the case of free persons of color because in relation to the questio ns submitted to me, they are treated by the Laws in all respects in the like ileges, he 14 14 See Bennett to Hayle, July 1, 1822 and Hayle to Bennett, July 3, 1822, Assembly Document 1328, South Carolina Department of Archives and History, Columbia South Carolina (hereafter referred to as SCDAH), 267 269. free white man could be lawfully tried by a court with close d doors and without being confronted with nciple of the slaves are not entitled to these rights [of a public trial and the confrontation of witnes freemen quagmire of free black rights and sta tus. Apparently, Hayle saw status as emanating from rights enjoyed, as did the f such rights. Hayle used elaborate hypothetical situations that closely mirrored the events of the Vesey trial to show how, in certain instances, it would be prudent for the court to close its doors and leave particular witnesses anonymous. Predictably, the Attorney General avoided any mention of the rights of free blacks. Hayle offered no other opinion of free blacks, and considered their legal status in criminal courts to be identical to that of the enslaved. Ironically, this deduction would mean tha t free


27 Undeterred by the letter of the law, Bennett penned a letter to the public in which he harangued the trial court for operating behind clos ed doors and outside the public eye. The large number of arrests, the ru mors of a conspiracy on par with the Stono Rebellion and St. Domingue and the closed court room doors had produced a hysterical environment t hat would make the impartial administration of justice impossible 15 It also re invigorated the fear of outside, At lantic influences on South Carolina society. Thomas Bennett and William Johnson held considerable sway in the Charleston community, but their popularity could not compete with the sensationalism surrounding the news of a massive slave uprising especially as the Vesey tribunals churned out conviction after conviction In the immediate aftermath of the executions, numerous accoun ts of the Vesey Rebellion came off the Charleston presses and collectively, they drowned out the cries for calm and m oderation One of the most popular and authoritative narrative s of the trials and rebellion came from none other than Mayor James Hamilton, the man with the most to gain by refuting the claims of Johnson and Bennett. Hamilton prefaced his book on the conspiracy by de claring it to the most part, it was just that as it recreat ed the investigation and trials, careful to keep the names of confidential witnesses unrecorded. Perhaps reactin accusations, Hamilton celebrated the investigation as well as the judicious conclusions of the court. The conspiracy was real, the plan was nearly executed, and Charleston bare ly escaped persons of color were legally in a worse position vis vis the courts than their enslaved counterparts because slaves could rely on their masters to protect their property while free persons of color had no such luxury. 15 Printed circul ar of Thomas Bennett, August 10, 1822. Robert Starobin, ed Denmark Vesey: The Slave Conspiracy of 1822 (Englewoo d Cliffs, NJ: 1970): 92.


28 ruin. 16 Hamilton reaffirmed th e findings of the court, declaring each guilty verdict as absolutely appropriate and every acquittal soundly decided. is especially intriguing. Hamilton inserted a half page length footnote at the bottom of the page on whi revolutionary war, captain Vesey, now an old resident of our city, commanded a ship that traded betwee n St. Thomas and Cape Franois [ Sa i n t Doming ue] amazed upon his return the following year to the future Black Republic as the boy, named fits [sic] The law of the is land stipulated that a slave trader was bound to exchange a previously sold slave for a new one if the original could be shown to be defective. According to Hamilton, Denmark once again became the human property of the captain, to whom he remained a faith ful slave for upwards of twenty years before a stroke of luck, a winning lottery ticket, allowed him to purchase his freedom. Since that day, Hamilton stated, Vesey ton carefully explained that despite his work ethic, 16 James Hamilton, Negro Plot. An Account of the Late Intended Insurrection among a Portion of the Blacks of the City of Charlest on, South Carolina (Charleston, S.C., 1822) in Paul Finkelman, ed., Slavery, Race, and the American Legal System, 1700 1872 Series 4, Volume 1 (New York, 1988); 113 162. Quote from 114. Emphasis in original.


29 children, he displayed t 17 by two of the presiding magistrates According to these itnesses had at t ested to the fact that Vesey to reinforce his position once the conspirators had cut off the Charleston Neck from the rest of the city. Though searches produced no documentary evidence witnesse s swore that Vesey maintained extensive correspondence with Haitians and West Africans, and used free black sailors to conduct his clandestine, treacherous communication. ome not shy about utilizing the events in Haiti as a model for the conspirators to follow in exacting was for our safety not to spare one 18 Together, Hamilton and the trial magistrates had uncovered or rather re discovered, the dangerous undercurrents of the Atlantic World. What is st riking about these two accounts of the uprising and a fact overlooked in the historiography, is the purchase both placed on s u p p o s e d African birth, his stint on San Domingue and his travels around the Atlantic threatened to undermine Cha were thrust upon otherwise faithful slaves and unsuspecting free blacks. Vesey maintained 17 Hamilton, Negro Plot 129 130. 18 L.H. Kenne dy & T. Parker, An Official Report of the Trials of Sundry Negroes Charged with an Attempt to Raise an Insurrection in the State of South Carolina (Charleston, S.C., 1822): SCDAH, 62, 42, 59.


30 race war with an African American community supposedly at peace with the racial hierarchy of urban South Carolina. not of desperate rebellion, and that is why it 19 The fact that slaves with the most freedoms and free blacks were among the ringleaders only reinforced this interpretation racial sys tem operated without m ajor incident. Only by c rafting narratives of black agency, black equality, and servile insurrection and anchoring them in his Atlantic experiences could Vesey successfully cajol e otherwise pacifistic and doting sla ves into insubordi nation. In short, precipitated the conspiracy. The benign Atlantic of the 1800s and 1810s had grown stormy once again Fantastic stories of Haitian and West Af rican soldiers descending on Charleston proved the immediate danger posed by Atlantic savvy free people of color. In the midst of these reports t he primary question facing white South Carolinians was simple: how do we effectively prevent another cons piracy? Edwin C. Holland, the editor of the Charleston Times believed legislative attention was absolutely warranted. Using his press as a vehicle for his ideas, Holland penned a widely circulated pamphlet Seeing as the ringleader s of the recent fiasc o w ere indeed free person s of color, Holland deduced of all free Holland contin repugnant behavior are [sic] a perpetual source of irritation to ourselves, and a fruitful cause of 19 The Impact of the Haitian Revolution in the Atlantic World (Columbia, S.C., 2001): 17.


31 ale and female, from the State, under the penalty of death, or of perpetu al servitude, upon their return. 20 well with Hamilton and the more reactionary voices in South Carolina, but his definition of free black conflicted sharply with South Carolina slave law and popular conceptions of race. Instead of lumping together all those people with significant Afr ican blood, Holland proposed to legally divide free blacks from free mulattoes, the hard based this division not on the antiquated codes of his state, but on the customs of other slave societies of the d em brace free mulattoes, as their whitening Times editor believed that this middle Holland pointed to the fact that the recent Vesey conspiracy was foiled by the fastidious and honorable actions of free mula ttoes. 21 Holland, then, was under the impression that the economic rise of some free people of color was not necessarily undesirable. As their dress, habits, and demeanor more closely resembled those the whites, then their allegiance to South Carolina woul d strengthen commensurately. Holland called for the legal recognition of a class of persons that already existed in Charleston society. By granting mulattoes privileges de jure that many of them had enjoyed de facto and by recognizing them as a distinct group unrelated to the slave population, 20 (Charleston, S.C., 1822); in Starobin, Denmark Vesey 133 137. 21 Ho 137.


32 Holland believed that Charleston could guarantee racial peace, economic prosperity, and social tranquility The city cou ld maintain its cosmopolitanism by bi secting its free black population and evicting the object ionable subset After all, parts of the British Caribbean offered extensive culturally and historically, proved to Holla nd that the three caste system sl ave, mulatto, free white cou ld work for South Carolina. 22 Holla prescriptions may have had a more forceful impact if not for the more radical demands for legislative interference coming from other members of the Charleston upper crust Thomas Pinckn ey, for example, believed the pernicious Atlantic tides could not be stemmed. through the Pinckney, the only surefire method for avoiding insurrection would be to evict all black mechanics and urbanites from the state and replace them w ith white workers, leaving only illiterate and insulated plantation slaves in South Carolina. Pinckney admitted his proposal was which] cannot easily be mad 23 Similar ideas emerged from Mayor Hamilton who spearhead ed a Memorial to the South legislative change to correct the struct ural flaws in the existing statute s. The first suggestion 22 137. Of course, after the Christmas Revolt, Southerners would be the Toleration Laws as a catalyst for slave insurrection. 23 See Achates [Thomas Pinckney], Reflections, Occasioned by the late Disturbances in Charleston (Charleston, S.C., 1822), in Paul Finkelman, ed., Slave Rebels, Abolitionists and Southern Courts: T he Pamphlet Literature Volume 1 (New York, 1988): 163 190.


33 In this regard, the Memorialists reiterated the mandate of Governor Moultri e three decades earlier in the early stages of the Haitian Revolution, when the Maria sat in Char he Memorialists information on every subject, and of Though p olitical and civic rights, including due process protections and the franchise, still remai ned out of reach of free blacks, t he Memo rialists were convinced that free persons of color, if left unche cked, denied them, as they must be, they will be driven by despair to obtain by force what cannot be 24 Unlike Pinckney, t he Memorialis ts acknowledged that a law evicting all free blacks was not a realist ic course for the Assembly to follow Natural increase and manumi ssion laws had produced a significant free black population, and practicality would prevent a wholesale dep ortation If the physical removal of free blacks was not pragmatic, then the legal eradication tion should be created between the whites and the negroes, calculated to make the latter feel the superiority of the 24 Memorial of the Citizens of Charleston to the Senate and House of Representatives of the State of South Carolina (Charleston, 1822) in John R. Commons, et al., eds., A Documentary History of Ame rican Industrial Society Volume 2, (Cleveland, Oh., 1910): 104 106. Again, the presumption is that citizenship follows rights. If one enjoys or exercises rights, then one is a citizen.


34 25 T of color from holding real property [since] use their property rights to foment rebellion. identity of in terest between the slave and the free person of color they are associated by color connected b y marriages, and by friendships. T hey assumed free blacks saw themselves first and foremost in racial terms, aligning themselves with slaves possessing no righ ts rather than with poor whites of the same economic and political situation and possessing nearly the same rights. Unlike Holland, the Memorialists viewed African blood as the great unifier; apparently, the connective force of white blood was not as stro ng as the connective force of black blood. Mulattoes were bound to feel a stronger racial alliance with black slaves rather than white masters. 26 Though primarily pursuing the eradication of the most susceptible audience to insurrection, namely free black s, the Memorialists, like previous commentators, framed their arguments in Atlantic terms. By limiting the force and numbers of skilled slaves and free blacks, South Carolina could realize the positive aspects of the Atlantic community Like Pinckney, th e Memorialists believed that the circumscription of the up per strata of the African American community would mean immigration of whose feelings will be our feelings, an d whose interests our interests Such migrant s would fill the urban labor 25 Memorial of the Citizens of Charleston 112 113. 26 Memorial of t he Citizens of Charleston 112 113. To further eradicate the legal dilemma of the free black and recalibrate the relationship between black and slave, the Memorialists highlighted the relationship they believed or condition of the free persons of color, excites discontent among our slaves, who continually have before their eyes, persons of the same color, many of whom they have known in


35 eady immigrating, but tended to head for the frontier because of the near monopoly black artisans maintained within the city. If such white flight extent, and design, may well bear comparison with the most atrocious of the West Indian insurrectionary schemes 27 Consid ering all the demands for intervention t he state l egislature had to take serious action adopted An Act of for the better regulation and government of free negroes and persons of color According to the new restrictions, no free black residing in South Carolina would be allowed to leave the state and return Transgressors would face penalties ranging from fine and imprisonment to ensl avement for chronic repeat offenders. Further, the law stipulated for testify Additionally, all free black males between fifteen and fifty now had to pay a fifty dollar tax per annum to defray the costs inherent in executing the new legislation. Those free persons of color not conforming to these new requirements would be sold into slavery. 28 The obvious aim was to financially exportation scheme. 27 Memorial of the Citizens of Charleston 104 112. 28 (Columbia, S.C., 1823): 11 14. Other sections derived directly from the Memorial, as the former forbade slaveow ners from hiring out their slaves. Any violation could result in the seizure and forfeiture of the slave who would then be sold at auction. Section eight declared it illegal for anyone to be in concert with free blacks or slaves for the purposes of incit ing rebellion. Those convicted would be condemned to death without clergy, regardless of the realization of rebellion.


36 However, these new regu lations would not completely diffuse the situation. F ree blacks from around the Atlantic could still disseminate dangerous ideologies to slaves and the few South Ca rolina free blacks who remained. To preclude this interaction a nd sever the Atlantic umbili cal cord to revolutionary ideologies in Charleston the law criminalized both free black immigration and restricted the ingress of free black sailors ree black immigration was hardly novel in 1822; several states enacted such measures, with Missouri being the most well known. 29 But the restriction against sojourning free people of color was new. According to the statute, county sheriffs henceforth sailors, regardless of nationality, un til their ship was ready to leave harbor. 30 The captain of the vessel was monetarily responsible for a bond to cover the expenses of their incarceration. If the t seemed a touch harsh, it paled in comparison to the one doled out to the sailors of the recalcitrant and taken as absolute slaves, and 31 This quasi quarantine of insurrectionary ideology through the imprisonment of black sailors sought to insulate the stubborn remainder of free blacks and the multitude of slaves from the same pernicious Atlantic in fluences that corrupted Vesey. Without new free blacks entering the state and with each domestic free black male under the watchful eye of a white guardian, South Carolina a ttempted to codify racial peace 29 Berlin, Slaves without Masters: The Free |Negro in the Antebellum South (New York, 1974) ; Leon Litwack, North of Slavery: The Negro i n the Free States, 1790 1860 (Chicago, 1961) ; Don Fehrenbacher, Origins of the Dred Scott Decision: Its Significance in American Law and Politics (New York, 1978) Century of American Immigration Law (1776 Columbia Law Revi ew 93 (December 1993): 1833 1901. 30 In this instance, I mean colored to mean legal nonwhites. The ambiguity of this term was not lost on 31 Ac (Columbia, S.C., 1823): 11 14.


37 The author of the seamen section of the new statute was appare ntly Robert Turnbull, a prominent freeholder who sat on one of the Vesey tribunals. Turnbull was born in Spanish Florida, and would soon gain notoriety around the South and beyond for his 1827 authorship of The Crisis an elaborate serie s of essays in which Turnbull explicitly linked the emerging abolition movement to slave unrest while simultaneously celebrat ing constitutionalism In fact, The Crisis served as one of the primary philosophical foundations for the Nullifica tion movement that began the year after the controversial book went into print. 32 developed in response to the controversies erupting over the enforcement of h is Negro Seamen law. 33 In 1822, not even the most erstwhile opponent of slavery or the most strident nationalist would have presumed that the individual states were limited in the construction and enforcement of domestic racial policies. Thanks to the McCu lloch decision and the Missouri debacle, which will be described shortly, individual state governments became much more cognizant of the potential manifestations attached to enlargements of federal power, especially regarding slavery and racial policy Be sides, s tates across the Union had laws on the books regarding legal from the general pattern of race specific legislation, with one exception. Th e restrictions agai nst sojourning black sailors stretched beyond the usual scope of domestic racial policy. South Carolina officials were now required by law to board ships, remove marine rs, and place them in 32 Edward B. Rugemer, The Problem with Emancipation: The Caribbean Roots of the American Civil War (Baton Rouge, La., 2008): 81 92; William Freehling, Prelude to Civil War: The Nullific ation Controversy in South Carolina, 1816 1836 (New York, 1965): 126. 33 (Ph.D. diss., University of Iowa, 1976).


38 jail. Under the new regulation state racial policy was affectin g people conventionally in its initial 1822 language, the Seamen Act appeared on its face to be a simple extension of a public health measure. In its 1822 form, the statute only appeared to criminalize black, non slaves who en tered South Carolina waters and, on its face, did not approximate a typical health or quarantine regulation. Seen in this light, Northern ship ca ptains and British merchants accused South Carolina of undermining interstate comity and violating existing treaty obligations, which in their esteem, protected sailors engaged in legitimate commercial activities from arbitrary interference by state offici als did not earn unive rsal acceptance even in South Carolina Robert Y. Hayne, future champion of deliberations. 34 William Johnson, w riting to his confidant Thomas Jefferson, lamented the reactionary and irrational measures of the state asse mbly. I have lived to see what I really never believed it possible to see, courts held with closed doors, and men dying by scores who had never seen the faces nor heard the tract able is to frighten them to death; and to magnify danger is to magnify the claims of those who arrest it. Incalculable are the evils which have resulted from the exaggerated accounts circulated respecting that affair. Our property is reduced to nothing strangers are alarmed at coming near us; our slaves rendered uneasy; the confidence between us and our domestics destroyed and all this because of a trifling cabal of a few ignorant penniless unarmed uncombined fanatics, and which certainly would have blo wn over without an explosion had it never come to light. 35 34 See Robert Hayne to C.C. Pinckney, Jr., December 21, 1824, in Theodore D. Jervey, Robert Y. Hayne and His Times (New York, 1909): 180 182. 35 William Johnson to Thomas Jefferson, December 10, 1822. Jefferson Papers Library of Congress, Washington, DC. Quoted from Donald Grant Morgan, Jus tice William Johnson, The First Dissenter: The Career and Constitutional Philosophy of a Jeffersonian Judge ( Columbia, S C ., 1971).


39 about to spill over in to the national and international arenas. The Denmark Vesey Conspiracy revitalized the old fears of the Atlantic that first emerged in the wake of the Haitian Revolution. Much like the botched 1793 revolt, the 1822 conspiracy linked the ideologies of ra ce war with servile insubordination. In the aftermath of 1793, the bustling cotton m arket, the collapse of the Federalist Pa rty, and the t a m i n g of Jacobinism in France allowed South Carolinians to privilege their aspirations for Atlantic interacti on over their anxiety of the potentially dangerous Atlantic import of colorblind liberty, equality, and fraternity As one historian summarized the Atlantic World in 1814, 36 The fear of a Haiti recital in South Carolina had all but evaporated by 1820. But in 1822, this balance sheet was in flux largely as a result of the altered political, economic and demographic world of Charleston The stark divisions of the First Party System had disappeared. The cotton market was in a freefall Charleston was no longer the hub of the international slave market f o r the United States. The overall proportion of free blacks to the white population doubled bet ween 1790 and 1820, and their visible presence in Charleston highlighted this demographic trend. 37 If white Charlestonians were already beginning to reassess the baleful influence of the black Atlantic against the diminishing return of the Atlantic market then the Vesey Conspiracy made safety the paramount concern But with the new statute in place sequestering domestic slaves 36 The Impact of the Haitian Revolution in the Atlantic Worl d (Columbia, S.C., 2001): 11. 37 John Barnwell, (Chapel Hill, N.C., 1982): 10. rest of the antebellum period, the free black population never grew more than .05% of the total proportion of the


40 f rom the dangerous Atlantic, the threat could be averted and Charlestonians could remain engaged in the Atlantic economy. F or the South Carolina legislators who saw the new law as a panacea for this Atlantic dilemma, enforcement would provoke such immediate, powerful, and contrasting responses. The constitutional and diplomatic debates over the 18 22 law would remain unresolved for over thirty five years.


41 CHAPTER 3 THE FIRST YEAR OF ENFORCEMENT: CALDER, ELKISON, AND THE SOUTH CAROLINA ASSOCIATION In p a s s i n g the 1822 Seamen Act, Sout h Carolina legislators sought to create a statutory wedge bet ween their slaves and Atlantic savvy free blacks. That wedge was not meant to be a sophisticated or invasive device B y placing all free black sailors into confinement, segregation would be perfect and with the exception of a short confinement and a sma ll fee, the law, presumably, would not impact very many people at all. In fact, South Carolina lawmakers hoped that the law would obviate the need for restriction. As more and more captains and companies learned of the Seamen Statute, they would chose to employ white sailors. Certainly, the South Carolina Assembly did not foresee its new measure as a diplomatic and constitutional volcano, the eruption of which would cast a cloud far and wide around the Atlantic. This chapter e x p l o r es the context of th at initial eruption, as well as its early trajectory, when British diplomats, federal and state officials first contemplated the far reaching implications of the Seamen Statute. Domestic politics and Atlantic events combined to frame the emerging debates and dictated the forums in which those debates would occur. Federal officials in the United States were reluctant to engage the Seamen Act remembering the polarizing impact of the Missouri Crises and the conflicting notions of African American citizenshi p. The vexatious questions of federal authority and black citizenship may have been averted entirely if it were not for British sailors press ing t he subject and a federal cour t judge undaunted by the gravity of the situation In the rhetorical fracas tha t ensued after the decision, the Atlantic loomed large.


42 The e p i t o m e of national euphoria following the War of 1812 came from the pen of John Marshall in his tour de force of federal power, McCulloch v. Maryland 1 In defending Congressional authority to charter the Second Bank of the United States, Marshall relied on an expansive reading of the Necessary and Proper Clause, extending to federal lawmakers a latitude end means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution ar language and sweeping conclusions professed a faith in federal government and the unrivaled supremacy of national laws and institutions. In accord, Marshall described the nation as a construction of the national cit people; it emanates from them; its powers are granted by them, and are to be exercised directly d the Constitution and g ranted the federal government wide albeit specific responsibilities and empowered it with unrivaled authority to fulfill those responsibilities State officers who stood in the way did so in contravention of the Constitution and in direct violation of the will of the American people. Most conspicuously, McCulloch professed two central pillars of Marshallian constitutionalism: the inability of the individual states to interpose in the operations of the federal government, and the unilateral power of Con gress even beyond the power of the Supreme Court to choose the means with which to accomplish its constitutional responsibilities. In the particular case before 1 17 U.S. 316 (1819).


43 the Court, Marshall denied the power of Maryland to meddle with the Bank of the United Sta tes, but also denied the power of his own Court to rule on the constitutionality of the Bank. 2 might have warned the mighty Chief Justice. The robust nationalis m so pervasive after the Battle of New Orleans and emblematic of McCulloch did not endure the Panic of 1819 and Missouri Crisis of early 1820, as Marshall was soon to discover. Sophisticated resistance to McCulloch nd by no less an author than the highest judicial off icer of the State of Virginia, Spencer Roane Roane was every bit the Virginia daughter and studied law un der the grand patriarch and first American law professor, George Wythe at the College of William & Mary. Roane long questioned the constitutional theories underlying the nationalistic Marshall Court decisions. In a series of newspaper articles, Roane sy stematically attacked the McCulloch decision, placing Marshall on the defensive and eliciting commentary from other notable Virginians. interpretation of the Necessary and Proper Clause and the Tenth Amendment, citing The Federalist Papers notes from various ratifying conventions, and the Kentucky and Virginia Resolves. In a nutshell, Roane read the contested clause as a restriction of Congressional power, as a reminder that Congress could not act through any Constitutional implication, but only in regards to expressly granted powers. Jefferson sided with Roane ( and against his old nemesis, Marshall, to no surprise), telling him, thing of wax in the hand s of the judiciary, which they may twist, and shape into any form they 2 In general, see R. Ken t Newmyer, John Marshall and the Heroic Age of the Supreme Court (Baton Rouge, La., 2001).


44 3 Even the more moderate Madison was forced to admit, believe, by few if any of the friends of the Constitution, that a rule of construction would be introduced as a broad and as pliant as what has occurred [in McCulloch 4 McCulloch Roane had been engaging in a jurisdictional sp arring match with the Supreme Court for the better part of a decade, particularly in relation to the meandering course of cases culminating in 5 In fact, the Hampden articles in which Roane attached McCulloch are best understood as a culmination of escalating friction between the Virginian and the federal courts. For Roane, the interrogation of the boundary between federal and state judicial powers was hardly an academic exercise, and the letters to him from Madison and Jefferson suggest that he was not alone in his concern over the mechanics of federalism. However, the somewhat esoteric inquiry assumed a new sense of urgency and publicity when relatively unknown New York Congressmen James Tallmadge, Jr. proposed an amendment over the course of a generation. When the House passed the Tallmadge Amendment, the dangers of Congressional power embedded in McCulloch became linked with the future of slavery in the western territories and ipso facto the nation Though Roane knew of the Tallmadge 3 The Spencer Roane essays first appeared in the Richmond Enquirer June 11 22, 1819. See also Samuel Olken, s of Their Conflict over U.S. Supreme Court Appellate Journal of Supreme Court History (1990): 125 Roane: A Reevaluation of The Virginia Magazine of History and Biography 96 (1988): 297 314; Thomas Jefferson to Spencer Roane, 6 September 1819, in Paul L. Ford, ed., The Works of Thomas Jefferson Volume 12 (New York, 1904 5), 135 138. 4 James Madison to Spencer Roane, September 2, 1819, The James Madison Papers Library of Congress, Washington, DC. 5 14 U.S. 304 (1816).


45 Amendment, he did not link the Missouri question to his ruminations over Marshall Court nationalism. 6 oncerning the tortuous 7 The question of westward expansion beyond the Mississippi River and the extension of slavery combined like nitrogen and glyc erin in the early months of 1820 as Congress debated the polarizing Missouri question. The federal consensus to leave the issue of slavery off the national political agenda threatened to unravel, and the Union with it. The political sophistication of Henry Clay and others prevented the early death of the United States, and the ad hoc Compromise helped keep the consensus and the nation intact. That Compromise, which balanced the admittance of slaveholding Missouri with the introduction of slave free M aine and drew the famous 3630 line across the rest of the Louisiana Territory, attempted to remove slavery once again from federal consideration and leave it where the Founders wanted, tucked away nicely in the governments of the states. 8 No sooner had the ink of the Missouri Compromise dried and Clay finished patting himself on the back when debates over Missouri statehood erupted once again and the regional fault line threatened to re emerge and sever the Union This time slavery was not the provocat eur, but rather African American citizenship. Now that Missouri was congressionall y cleared to enter the 6 over the expanding competency of the federal government, John Taylor of Caroline exte ideology. See John T aylo r, Construction Construed and Constitutions Vindicated (Richmond, Va.,1820). 7 From Thomas Jefferson to John Holmes, April 22 1820, in Paul Ford ed. The Writings of Thomas Jefferson Volume 10 (New Yo rk, 1898 ): 157. 8 government had no The Sources of Antislavery Constitutionalism in America, 1760 1848 (Cornell, 1977 ): mise, see 106 122.


46 Union, a state convention had to construct a constitution and mail it to Washington before admission was complete. However, the proposed Missouri Con stitution included a clause that nearly re entering this State, under any pretex 9 When the proposed Missouri Constitution hit the floor of the Capitol, the clause barring African American admission ruffled the feathers of several Senators. However, the all out war over slavery in Missouri motivated many in the upper ho use to avert another fiasco and summarily approve the Missouri Constitution without debate. Senator Philip Barbour proposed a resolution to prevent discussion and won some support, but the debate on the Missouri Constitution commenced nonetheless. 10 In tra cing the debates over the Second Missouri Crisis, two i mportant points need to be made. First, the virulent disagre ements over the role of African Americans in the body politic provide abundant evidence as to why the Seamen Act remained off the Congressio nal radar for so long. Second, and equally important, the Senate debate revealed the uneven and conflicting conceptions of citizenship in the Early Republic. Senator David Morril of New Hampshire complained that the Missouri constitutional clause barring African American immigration blatantly violated the Full Faith and Credit Clause as well as the P rivileges and Immunities Clause of the federal summarized the common understanding of his Color does not come into consideration, and it has no share in characterizing an inhabitant or a 9 Constitution of Missouri (1820) Article III, §26. 10 Philip Barbour, as a Supreme Court Justice, would have a future role in legitimating state regulations against free black sailors when he penned the majority opinion in New York v. Miln 36 U.S. 102 (1837).


47 battles; they have In blending notions of birthright citizenship and citizenship earned in battle, Morril advocated a powerful, if theoretically jumbled, justification for recognizi ng citizenship for free African Americans or at least those residing in New Hampshire 11 Senator James Burrill Jr. of Rhode Island echoed many of these same themes, alternating between conceptions of birthright citizenship and rights earned through military service in renouncing the obj ectionable clause in the proposed constitution. As he rose to address the presumably blushed in embarrassment while he struggled to free his garment, Senato r Philip Barbour of Virginia an omen of defeat. Burrill finally freed his jacket, but in his analysis of American citizenship, the Rhode Islander would become tangled up once again. Federal Constitution, no state could infringe on the rights of American citizens to move freely explained as he gained his compo there was nothing in the reasoned, the Senate was obligated to reject the Missouri Constitution on the basis of its inco states ought to be able to enter the Union if their constitutions distinguished between citizens because the Federal Constitution did not countenance such division s. 12 11 Annals of Congress 16 th Congress, 2 nd Session of the Senate, 31 48. 12 Annals of Congress 16 Cong ., 2 sess., 31 48.


48 unknowingly) exposed the two central paradoxes of citizenship in the American federal republic. First, a massive gulf separated the grand ideology of an undifferen tiated citizenry one that eschewed gradations of rank, titles of nobility and other badges of a legalized hierarchy of status and the social reality that different groups of people in the United States possessed different sets of rights. Burrill ackno wledged this, asserting that the Federal Constitution did not that distributed unevenly various rights based on race. Burrill never extended his logic to the la ws in existing states; he merely noted their presence. Along his argument, existing state constitutions and laws that differentiated between citizens would not withstand judicial scrutiny, if so scrutinized, as they would be repugnant to the Constitution. Burrill only applied his argument to new states in an attempt to goad his fellow Senators into upholding their pledge to 13 er dilemma in defining citizenship in early America. Burrill himself held a dual citizenship of sorts, being both a citizen of Rhode Island and a citizen of the United States. But he, as a citizen, was guaranteed citizenship rights in every other state o f the Union. If uniformity reigned, this multivalent character of American citizenship would only denote distinctions without differences. However, as Senator Burrill was an unstable understanding of who could be citizens, both state and national, and what rights corresponded to each particular status. This uneven conception of citizenship, one that depended current location as much as who someone was expose d the potential problems that 13 On this paradox in general, see James Kettner, The Development of American Citizenship, 1608 1870 (Chapel Hi ll N.N. 1978).


49 proposed constitution highlighted the incongruence between states in the northeast, where, despite l egal deficiencies, some African Am ericans were nominally considered citizens, and other states, where free blacks, often with similar legal handicaps, occupied a legal netherworld between slave and citizen. 14 As the debate on the pending Missouri Constitu tion continued, Senator William S mith of South Carolina denied the existence of black citizens in the Northern States. Citing the various the whole nation denying positively all the precio us and valuable privileges of citizenship to free negroes and mulattoes, would not demonstrate that they were not citizens, he knew of no human possessed The absence of rights meant the absence of citizenship. Since every state in the Union maintained some legal restrictions ag ainst free blacks, whether it was the franchise, militia duty, marriage or some other fundamental right, no state could claim them to be citizens because those very legal handicaps could not exist against the citizenry. Free black were not citizens. Of course, Smith never contemplated what status they did occupy, and neither did he consider (at least publicly on the Senate floor) the conundrum of citizenship for white women or children, considering the legal handicaps these two groups experienced 15 14 See Leon Litwack, North of Slavery: The Negro in the Free States, 1790 1860 (Chicago, 1961); Ira Berlin, Slaves without Masters: The Free Negro in the Antebellum South (New York: 1978): 216; A. Leon Higginbotham, Shades of Freedom: Raci al Politics and Presumptions of the American Legal Process (New York, 1996). 15 Annals of Congress 16 Cong. 2 sess., 51 72. Though Smith never explicitly considered female citizenship, his brief example of state laws limiting interracial marriage and do micile is interesting if not noteworthy for current man according to this constitution, to remain within the State, if he is a citizen, as long as he pleases?...To grant this right [to marriage] to one citizen and take it from another, would be giving to one and taking from another the means of happiness, which the constitution secures to him so Emphasis in original.


50 Other Senators came down in between the two poles constructed by Burrill and Smith, but they all considered local and state law to be the cognizant authority to determine the status of citizen and, thus the applicability of the Privi leges and Immunities Clause. And this deference is in part attributed to the fallout after McCulloch make him free, a John Holmes seem, then, inevitable that, inasmuch as the privileges of citizens are conferred or withheld by Thus, both Burrill and Smith were right to exam ine local and state laws, but they were wrong to assume a general, uniform recognition or rejection of African American citizenship. Some states deny that world of perfect state sovereignty, it appeared as though no person in the United States could point to a universal set of rights that attached to all persons traveling l the privileges and immunities, and is subject to all of the restraints and disabilities as to residence, property, age, and color with his logic, Holmes attempted to boil down his i deas into a few basic propositions mulattoes, by the Constitution of the United States nor laws of Congress. The constitution and laws of the States are alone capable of co nferring them. The State of Missouri has not conferred them on this class of her population. Black citizens of other States acquire no other privileges and immunities there than her 16 16 Annals of Congress 16 t Cong 2 sess. 85 89.


51 reate federal citizens, but the other States would not be obliged to honor the rights of a particular segment of the federal citizenry so long as they discriminated against their own members in the same manner as those entering their jurisdiction. Apparen tly for this Maine Senator, the Constitution conferred rights automatically on the white (presumably male) population, but since no specific clause in that instrument extended citizenship to other, nonwhite groups, then the states could decide if and when such groups deserved or earned that status. Several other Senators and Congressmen joined in the chorus, or rather the cacophony, over the suspect clause, but a complete rehearsal of the drama is not necessary for current concerns. 17 Ultimately, ambiguity resolved the Second Missouri Crisis, as Congress agreed to approve the Missouri Constitution, objectionable clause intact, under the provision that it not be so construed so as to conflict with the Privileges and Immunities Clause in the Constitution. Th ose who believed free blacks to be citizens would read the provision as a limitation on them Those who denied the existence of black citizens saw the provision as an empty one, having no real bearing on the administration of the law. Most derisions from the previous session conce rning the Tallmadge Amendment Moreover, Congress had learned an important lesson from McCulloch and Mis souri statehood: when it comes to slavery and the issue of race and citizenship, ambiguity and silence proved to be the best courses for the federal government. of the debate about race, citizenship, and rights in the expanding Republic. Much like the federal 17 The debate in t he House resembled the Senate debate described above.


52 consensus that insulated Capitol Hill from discussions of slavery, federal lawmakers acknowledged the wisdom in officially avoiding the intersection of race and ci tizenship. In much the same way that slavery could expose threadbare the large and increasing disparity between North and South, so, too, could the volatile concept of black citizenship. Luckily for adherents to this creed of silence, the exact contours of federal citizenship rarely graced the pages of early American law books and even more rarely demanded public commentary Citizenship was mostly a local construction, as the preceding comments illustrate, and individuals largely understood their relati onship to government, including their individual rights, in the context of state and local law. 18 Only when citizens of one state entered another (or attempted to enter, in the case of Missouri), and they perceived an infringement of their rights did the incongruence exemplified by Senator Holmes in 1820 come to the forefront and demand explicit commentary. And the commentators were cognizant of their post McCulloch world, where tumult would certainly ensue if federal pronouncements conflicted with the pr esumed powers of the states. Fortunately the movement of white citizens rarely sparked controversy, as the various state governments shared a common ideology concerning the rights of sojourning white citizens. In 1823, Supreme Court Justice Bushrod Washi ngton, while riding circuit, explained the common understanding of federal citizenship and the rights of (white) citizens from one state who entered another. In the case of Corfield v. Coryell Justice Washington spoke for the court, in confining these expressions [in the Constitution] to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all 18 Kettner, Development of American Citizenship ; Rogers Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, Conn., 1997); Morton Horwitz, The Transformation of American Law 1780 1860 (Cambridge, Mass., 1977).


53 tizens, though Protection by the government; the enjoyment of life and liberty, with the ri ght to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of the citizen of one state to pa ss through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise, to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embra ced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be e mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by citizens of each perpetuate mutual friendship and intercourse among the people of the different states of the Union. contentious in the jurisprudence of the Fourteenth Amendment during the twentieth century, ribe the status quo, not to create actionable rights for individuals seeking protection from state legislation. After all, in the case from which the lengthy preceding quote was taken, Washington ruled against the shipmasters seeking redress from property taken under the authority of a New Jersey law. 19 The most vital aspect of the evident, and apparently self executing, that (white) citizens traveling to another state w ould not be molested in their lawful endeavors. As such, the theoretical murkiness undergirding conceptions of federal citizenship in the United States posed no problem, and federal officials 19 Corfield v. Coryell 8 F. Cas. 546, quote at 551 552.


54 could remain aloof regarding federal citizenship rights and the reby avoid perturbing dedicated opponents of federal power and black citizenship But thanks to the new South Carolina Seamen Law, problems did arise, problems that threatened to reopen recently healed political wounds. The Seamen Law appeared pois ed to re s u s c i t a t e t he issues that Congress so k i l l e d w i t h ambiguity in the winter of 1820 1821 and in the wake of McCulloch eveal questions best left unasked How can the uneven possession of rights and the sweeping ideals of an undifferentiated citizenship coexist? To what extent does interstate comity provide enforceable rights vis vis the Privileges and Immunities Clause? Which rights belonged to the federal citizenry as opposed to state citizenry? As if thi s were not threatening enough, the S outh Carolina Seamen Law also sat at the opaque crossroads of federal commercial pow er and state policing authority T h i s p a r t i c u l a r c o n s t i t u t i o n a l l o c a t i o n o n l y exacerbated the combustibility of an already explosive topic a n d n o l e s s in the midst of a rapidly expanding, increasingly cohesive Within the first month of enforcement, the Seamen Act ruffled the feathers of Northern and British merchants. In early January, 1823, an American captain appealed to the South Carolina courts for the release of two of his sailors. Not only was the captain unsuccessful, but the State Court of Appeals upheld the constitutionality of the Act and the State Constitutional Court divided on the issue, refused to hear the case. With no remedy available from the st ate court sy stem, the captain, along with forty other Northern shipmasters who also suffered under the new law petitioned Congress for redress 20 20 Memorial of sundry masters of American vessels lying in the port of Charleston, March 15, 1823. I have been unable to find official court records for this case, or any appeals cases, for 1823.


55 The petitioners argued against the con stitutionality of the Act on three distinct grounds though the brevity of the petition prevent s extensive analysis First, the pet it ioners claimed the Seamen Law he act in question does In this short sentence, the petitioners equated freemen with vague about the rights of citizens. It seems to imply the presence of federal citizenship rights, acquired through birth and enforceable against the states. It is also possible that the petitioners the Privileges and Immunities Cla use demanded interstate comity; since the seamen in question exercised certain citizenship rights the freedom of movement and to engage in commerce in their native Northern states, they were also enti tled to those same freedoms in In this sentence, the shipmasters see m to make two distinct claims: t he State of South Carolina allegedly when they arrested the mariners and the statute unconstitutionally restricted interstate commerce While the Constitution e xplicitly denied the power of the individual states to abridge contracts, it nowhere explicitly denied the power of the states to pass commercial legislation. The unilateral power of Congress to regulate interstate and international commerce had not been definitively decided and was hotly debated in 1823. 21 Because of these specific violations, the petitioners hoped the federal 21 The case of Gibbons v. Ogden was escalating up the judicial ladder, and would reach the U.S. Supreme Court in 1824.


56 the situation 22 One might wonder why the petitioners looked to Congress for remedy. If the Seamen statute violated the Commerce Clause or the Contract Clause of the Constitution, then federal court would be the likely venue for the shipmasters to air their complaints. The only measure Congress could undertake would be to pass a commercial law that explicitly granted free black sailors the right to enter the individual states. If Congress enacted such a measure, then the petitioners could (again) turn to the courts in hopes of having the Seamen Statute struck down as a violation of the Supremacy Clause, as it would blatantly contradict a constitutionally enacted federal law. Unsurprisingly, Congress was in no mood to create a set of rights for black mariners which woul d allow them unfettered access to all the ports of the nation. As discussed at length above, t he imbroglio surrounding the Missouri Constitution charted the course. Commentary and debate on t he rights of sojourning African Americans was politically impra ctical. I f Congress passed a law to explici tly combat an existing state regulation (i.e. a law guaranteeing the ingress of African American sailors), then it would invite the same retaliation that emerged in the wake of McCulloch To respond to the petit ion would be to fly in the face of experience. Missouri and McCulloch warned of the twin perils of federal expansion and the recognition of African American citizenship, and Congress heeded the warning of recent history. It tabled the petition without co mment. The fir st wave of British protests also began in January 1823 when the British sloop Bob from Nassau arrived in Charleston with an entirely black crew employed under shipmaster John McRee. McRee, as was his custom, was in town while the crew finis hed unloading the cargo 22 March 15, 1823.


57 and prepared to leave harbor. Just as they completed the hauling, a deputy sheriff seized the entire crew under the provisions of the recently enacted law, arresting both the free black mate and the four enslaved crewmen. Apparent ly, t he crewmen all claimed initially to be British subjects, believing that the rights afforded that status would protect them from any problems with local law enforcement. The sailors were mistaken; their claims to free stat us precipitated their arrests The deputy carried them off to the local jail, leaving Bob unmanned until the sought the advice of his business partner, James Calder, who suggested that they c onsult an attorney and protes t the law to the local British C onsul. The lawyer assured McRee and Calder the four seamen being also slaves 23 Since the Se amen Statute only applied to free people of color, then the slaves should have been exempt. It is unclear if Calder and McRee were aware event, Calder appealed t o S heriff Francis Deliesseline for the release of the crew but he refused to set them free because the trial court ha d already deemed the men guilty. Calder and McRee were required to pay the court mandated gaol fees. Already behind schedule, Calder pai d the f in es, but appealed the judgment of the trial court. His first appeal failed, but before the State Constitutional Court, the Court recognized the fact that his mariners, first mate excepted, were not free subjects of Great Britain as they had specif ied during the arrests. Rather, they were slaves choosing to feign subjecthood. Since the state of South Carolina assumed all blacks to be slaves unless proven otherwise, the sheriff had 23 Calder to Consul Moodie, January 15, 1823, in Correspondence relative to the Prohibition against the Admission of Free Persons of Colour into certain Ports of the United States, 1823 1851 Series 5, Volume 579, Foreign Office Papers Public Records Office, Kew, Eng land (hereafter referred to as Correspondence ): 2 Britain, the United States and the Negro Seamen Acts, 1822 Journal of Southern History 1 (February 1935): 4.


58 to produce further evidence that the men were, in fact, free. 24 Wi th the sheriff unable to do so, the high court ordered a retrial and specified that, henceforth, slaves were specifically exempt as objects of the Seamen Act. 25 In the wake of the Calder case, seafaring slaves could legally exercise greater liberty than f ree persons of color i n the ports of South Carolina. Despite the obvious perils in making such a declaration, free black mariners could expand their legal protections if they claimed to be slaves. Of course, ships sailing from countries without slaves wo uld find this option impossible, even though the list of Atlantic nations without slaves in 1823 was quite short. appropriate exercise of state power. Based on the prec edent set by Calder v. Deliesseline the South Carolina courts would dismiss quickly any more suits brought by free black sailors. In effect, the Calder decision closed the judicial doors of South Carolina on opponents of the Seamen Law. For a short time however, the state courts were not needed, as the early summer of 1823 witnessed a relaxation in enforcement, and the arrests of black sailors diminished. Some accused William Johnson, Supreme Court Justice and Charleston native, of persuading the Distr ict Attorney to slow prosecution. 26 Johnson had longed despised the extreme measures passed in the aftermath of the Vesey rebellion, and he made no efforts to conceal his displeasure. Other rumors suggested that a dispute between the harbormaster and the sheriff over jail fees led to the reduction in arrests. Supposedly, t he harbormaster stopped reporting the presence of free 24 It is unknown whether the four men deemed slaves were actually enslaved or if Calder only claimed they were in order to receive a refund of the jail fees. On the presumption of slave status, see Robert Olwell, Masters, Slaves, & Subjects: The Culture of Power in the South Carolina Lowcountry, 1740 1790 (Ithaca, N.Y., 1998): 69 70. 25 Calder v. Deliesseline Harper 186 (South Carolina Constitutional Court, 1824). 26 See Charleston Mercury August 20, 1823. William Johnson himself acknowledged speaking to local officials in mplaints. He insisted that he requested the District Attorney to bring Elkison v. Deliesseline 8 F. Cas. 493 (1823), at 495.


59 blacks on merchant vessels because the State had not provided the means by which his f iling fees would be paid. The s heriff, witho ut the harbormaster reports, had no obligation to board the vessels and arrest violators of the Seamen Act. Apparently the se municipal officials appeared content to let the law sleep. Carolina courts, hi s protest to the local British C onsul matriculated up the chain of the British Foreign Office. Upon hearing the news from his Charleston subordinate, British Consul General Stratford Canning immediately sent word to U.S. Secretary of S his desire for individual redress Canning instead suggested that the federal government do 27 Most importantly, Canning made no mention of the rights of the sailors who faced incarceration. Rather, his obje ctions concerned the costs to the captain and owners of the vessels, who lost the labor of their crew and had to pay the jail fees. international law in the 1820s would ag ree that vessels were jurisdictionally a part of the nation whose flag it hoisted. The ability of local law enforcement officials to board a foreign ship, seize members of the crew, and haul them off to jail was suspect. I f a crewman of a foreign vessel committed a crime while ashore and fled to his vessel, local law enforcement could demand his extradition. But the South Carolina law criminalized the very act of being on board the vessel. And certainly, in the shadow of the long impressment controversy British diplomats would have 27 5; Stratford Canning to John Adams, February 15, 1823, in Correspondence 1 2.


60 noticed the irony in American officials boarding British vessels and removing unsuspecting crewmen. Canning, however, did not insert such accusations of hypocrisy in his note to Secretary Adams Despite the nicety, Adams wa prevent the 28 Elated, Canning sent word to London that the federal 29 Just as Adams promise d the number of arrests and the complaints accompanying them did decline precipito usly in March, s discussion with South Carolina Congressmen or the dispute between the Charleston sheriff and the h arbormaster 30 Regardless of the cause of cessation, Adams took credit for the relaxation in enforcement. in Charleston, the federal government, and the British Foreign Office would have been greatly relieved had the break in arrests proved permanent. Despite the popularity of sweeping calls neither the state nor municipal government attempt ed to press the s heriff into executing the Seaman Act; rather, a group of concerned Charlestonians came together specifically for the 28 John Adams to Stratford Canning, June 17, 1823 in Correspondence 4 5. 29 Stratford Canning to George Canning, June 18, 1823, in Correspondence 4 ; Ham 5. 30 Adams knew of the issue between the harbormaster and Sheriff, though no evidence suggests that Adams, or any other federal official, had any direct influence on this apparently homegrown dispute. See J.Q. Adams to Stratford Can ning, 17 June 1823 in Correspondence 4. Some evidence suggests that Adams spoke with Congressmen from South Carolina in seeking to suspend the Seamen Act, though Congressmen Hamilton, former Mayor of Charleston during the Vesey Conspiracy, declared that he refused to cooperate with the Secretary. See B.F. Hunt, The Argument of Benj. Faneuil Hunt, in the case of the arrest of the Person claiming to be a British Seaman, under the 3d section of the State Act of Dec. 1822, in relation to Negroes, &c before t he Hon. Judge Johnson, Circuit Judge of the United States, for 6 th Circuit (Charleston, S.C., 1823) in Paul Finkelman, ed., Slavery, Race, and the American Legal System, 1700 1872 Volume 2 (New York, 1988): 2 3.


61 purpose of reinvigor ating enforcement of the law. Appalled that two civil servants could summarily ignore a state law and thereby jeopardize the safety of Charleston, these concerned citizens formed an extralegal organization to assist law enforcement officials in fulfilling their duties. In the July 24 edition of the Courier Association: Thomas Pi n ckney and John Priole au, Revolutionary heroes, were among the officers as were Henry Deas and Robert Turnbull, two of the freeholders that sat in judgment on the Vesey Conspirators. 31 Not coincidentally, Pinckney led the charge in seeking the deportation of all free blacks in Charleston and Robert Turnbull had authored the Seamen Act in the last session of the state legislature. The officers obviously wanted to get the ball rolling, pressing immediately for the arrest of free black sailors. When the Association petitioned the state legislature three months later, over three hundred names appeared on it. 32 With this type of ital city, Charleston officials began arresting unsuspecting seamen once again Soon after enforcement resumed harbor unaware that the Seaman Act was again operational. While Homer was in port, Henry Elkison, a free black sailor, found himself incarcerated despite the pleadings of th e British Consul on h is behalf. According to his own affidavit, Elkison, a native of Jamaica, claimed to be 31 Charleston Courier July 26 and 28, 1823 32 The South Carolina Historical Magazine 78 (July, 1977): 191 201.


62 a British subject and deserving of all rights afforded to one with that status. P robably aware of the state courts approbation of the Seamen Law, Elkison (with the help of the British Consul) rt. The State Constitutional Court had already ruled, in dicta that the Seamen Act was constitutional when it emphatically denied its appli cability to slaves in Calder Elkison and his attorney probably felt they had a better chance of securing a favorable ruling if they filed in federal court. After all, the federal judge to hear the case would be William Johnson, and he was sure to be mor e responsive, having 33 of i ts leading opponents. ford Johnson the opportunity to offer a binding decision? unconstitutional, his incarceration was illegal. Unlike Calder this argument sought a ruling on the constitution ality of the seamen statute, rather than a legal loophole. If Johnson could rule on roblems with the case. Federal courts were not allowed to issue writs of habeas corpus to prisoners in state This narrow exception was meant to prevent state officials from un dermining federal authority by arresting federal officials or litigants in federal court. Elkison was not needed in federal court or in any other federal capacity, so his decision to sue for habeas corpus in federal court had no chance of succeeding. Juri sdictionally, Johnson could not issue the writ and free Elkison. Most likely, 33 Elkison v. Deliesseline 6. F. Cas. 493 (1823), at 493.


63 Johnson suggested the suit to provide him an opportunity to opine on the obnoxious law despite his inability to free the Jamaican sailor 34 Typically, this sort of case would dem and the attention of the Sta te Attorney General, since the s heriff was acting in his off icial capacity and a state law was being brought before a federal tribunal. Curiously, St ate Attorney General James L. Petigru did not argue the case for Sheriff Delie sseline. At fi rst glance, this might seem odd because Petigru was a dear friend and business initial passage. While no mandate forced Petigru to plead the case, his absence did draw questions from curious onlookers in the courtroom. 35 The motivation behind Peti unknown, but it is lik ely that the young attorney detested the statute Unlike most other young attorneys in Charleston, Petigru was from the upcountry, and o nly made his way into the circles of the lowcountry gentry through hard work and the benevolence of his mentor (and stringent Unionist) Daniel Huger. He graduated from South Carolina College while it was still a Federalist stronghold before the ascension of the rabid state in 1819. Later in life, Petigru would oppose Nullification in 1832 as well as secession in 1850 and 1860. In 1853, some thirty years after Elkison Petigru would file a suit in federal court on behalf of a foreign born sailor against to New England Calvinism, and the combination of this early education and his Federalist training in college probably predisposed him to doubt the efficacy, if not the constitutionality, of 34 hear the case and rule on the Seamen Law despite the jurisdictional problem was unusual, though not unprecedented. Typically, judges would dismiss claims with such obvious jurisdictional issues, and Johnson was berated in the press for ignoring judicial p ropriety. 35 Elkison v. Deliesseline 8 F. Cas. 493 (1823), at 494. Because the Association was behind enforcement of the law and provided legal counsel for the sheriff in Elkison Johnson considered the law House Report 80 27 Cong., 3 sess., (1843 ): 14 15.


64 the Seamen Law. Additionally, Petigru did not participate in any aspect of Vesey trials, which occurred before his appointment as Attorney General and while the young lawyer yearned for business in Charleston So, while no direct evidence explains why the Charleston parvenu skirted Elkison v. Deliesseline circumstantial evidence suggests his disapproval of the law. 36 The South Carolina Association obviously learned of the case avoid it for it p rovided counsel to the Sheriff in absence Two young attorneys, Isaac E. Holmes and Benjamin F. Hunt constitutionality of the seamen statute. Holmes was from a well to do Charleston family, attended Yale, and began practicing law in his home city in 1818 before ultimately representing South Carolina in the House of Representatives from 1839 until 1851. In 1823, he was a private attorney but was the sitting Solicit or for the Association. 37 H co counsel, Benjamin F. Hunt, was originally from Massachusetts where he graduated from Harvard before moving to Charleston for health reasons. While in Charleston, he studied law and was admitted to the state bar. Throughout the antebellum per iod, Hunt remained a dedicated Unionist, renouncing Nullification in 1832 and pressing against secession in 1850. It was the case against Hunt that eventually ended the Test Oath controversy in 1834, which effectively allowed the Union party to survive in South Carolina In 1843, Hunt actually sought to moderate the Seamen Law and won the confidence of the British Consul. 38 But back in 1823, Hunt espoused a virulent form of nding Sheriff Deliesseline, and his rhetoric and gr andstanding are Elkison resembled the 36 See William H. Pease & Jane H. Pease, James Louis Petigru: Southern Conservative, Southern Dissenter (Athens, case. The 1853 case in which Petigru argued against the Seamen Act was Roberts v. Yates 20 F. Cas. 937 (1853). 37 38 See Consul Ogilby to Earl of Aberdeen, December, 26 1843, in Correspondence 74 75.


65 constitutionalism of a John C. Calhoun or a Robert Rhett, not a railroad investor and Unionist, as Hunt was about to become. Even more curious, Hunt publis hed his opinion and had it circulated around Charleston (and beyond), making it unlikely that he so valiantly defended the sheriff as a matter of professionalism. A ccording to contemporaries, Hunt was masterful in front of an audience, and his rhetorical flourishes and quick wit made him one of the most talented, though inexperienced, attorneys in Charleston. But why take the case and why publish in pamphlet form his argument? It is quite possible that Hunt had not yet developed a coherent ideology on the nature of the South Carolina over the Tariff and Nullification, but before 1828, s t a t e politics was more a matter of personal relationships than party platforms. 39 Tellingly, Hunt and Petigru, another bona fide antebellum Unionist, despised one another. Union, bu t o young son prevented a duel between the two in 1826. 40 Perhaps Hunt took the Elkison case to simply to show up his cross town legal rival. Perhaps the rapid growth of the South Carolina Association in Charleston pe rsuaded Hunt to take the case as a business calculation, only to shy away from his bold arguments in Elkison when the Tariff fiasco transformed his position from a theory in the sky into politics on the ground Whatever his motivation, his argument pres erved through his decision to publish and distribute it helped transport the ideology of state sovereignty from its Virginia birthplace to the fertile 39 William Freehling, Prelude to Civil War: The Nullification Controversy in South Carolina, 1816 1836 (New York, 1965); Manisha Sinha, The Counterrevolution of Slavery: Politics and Ideology in Antebellum South Carolina (Chapel Hill, N.C., 2000).; John Barnwell, Love of Order: South (Chapel Hill, N.C., 1982). 40 Pease & Pease, John Louis Petigru 33 34.


66 Carolina lowcountry. In an ironic twist Elkison argument was adored by future Nullifiers, his future political adversaries. 41 In presenting his case, Hunt decided to focus on the larger issues at hand, and sidestep the more technical aspects of the case. Quite easily, Hunt could have argued that a man, like Henry Elkison, held in state custody, was beyond the reach of a federally issued writ of habeas corpus. The 1789 Judiciary Act was quite explicit; federal court judges could not force the release of individuals held in state custody unless the individual was required in federal court, or if the individual fit into some other specific set of circumstances. Elkison did not fall into any of these prescribed categories, so Hunt could have simply argued the case on this narrow ground, but the aspiring young attorney could not pass up the opportunity as a grandstand. S o instead of focusing on habeas corpus, Hunt began his argument by declaring the paramount power of South Carolina to protect itself, a power that transcended any delegated powers surrendered to the federal government under the Constitution including the regulation of interstate or international commerce moral pestilence which a free intercourse with foreign negroes will produce she has, by the primary law of na ture, a right within her own limits to interdict it she is not bound to wait until her citizens retained its sovereign powers to police her borders and secure the well being of her citizens, no authori ty could compel it to rescind the statute. Only South Carolina was capable of being Furthermore, the Constitution made no ment ion of federal police powers, a nd 41 In fact, the only historian since 1935 who examined closely the primary sources of the Seamen Acts described the initial South Carolina controversy a Negro Seamen Acts Controversy in South Carolina, 1822


67 and the the which [South Carolina] had not more intention of jeopardizing, than Pensylvania [sic] or New York, had of yielding the right of establishing health laws, to pre vent the importation of upon which foreigners 42 Since colonial times, Hunt continued, the colonies and then states had laws th at protected them from the introduction of paupers and convicts. To restrict the entry of those travelers who might inflict harm to the safety and welfare of the citizens of the state was the essence of the police power, and could not be considered a form Britain to send her convicts or incurables to our shores, the prohibition of their entry, would be statutory law for cent uries, and no one had any constitutional qualms about their legitimacy. Hunt continued, New York subjects our vessels to quarantine, and confines our citizens to hospitals, although we have no faith in contagion. Yet, if we confine her negro cooks to a p articular spot in Charleston, we are told it is a violation of the Constitution! We have much more reason to believe in the moral contagion they introduce, than in the importation of yellow fever. However, as New York judges for herself upon one point, S outh Carolina has the same right to decide on the other, especially as she conceives her interests and safety, are at stake [sic]. 43 42 Hunt, The Argument of Benj. Faneuil Hunt 9 12. 43 Hunt, The Argument of B enj. Faneuil Hunt, 13. Emphasis in original.


68 If South Carolina enforced quarantine laws against all states and nations entering her ports, then no nation could complain of its operation. Only if the quarantine was applied to some nations or 44 Because the law was one of police, not commerce, and because quarantine laws had long been the domain of state power an d beyond the general government, then Hunt concluded that South Carolina was fully within its power to outlaw the ingress of free black seamen. To the between th e United States and Great Britain, Hunt scoffed. Such a claim erred in two regards. First, the language of the Treaty was quite clear ; the free intercourse enjoyed by British su bjects in the United States was Of course, this line of reasoning afforded a convenient sidestep of a much stickier inquiry: whether black Britons were to be considered subjects in treaties with the United States. But even without thi s debilitating clause, making power was circumscribed by the Constitu tion. the President and the Senate were incapable of enact ing a treaty tha t would usurp any powers reserved to the states or contravene any state law properly enacted. Put differently, the same 44 Hunt, The Argument of Benj. Faneuil Hunt 9 13. Hunt also acknowledged briefly that South Carolina retained the right to regulate commerce in the absence of federal legislation. However, he was much more in terested in proving the Seamen Law a quarantine regulation a police power not ceded to the federal government and not a commercial law that Congress could preempt.


69 restrictions the Con stitution placed on Congress were also placed on the President and Senate in their treaty making capacity. The Ten th Amendment limited the treaty making power. 45 many of them interrelated First, he set the future trajectory of the Seamen Acts debates by equating th e law to quarantine. Foreign (meaning from out side South Carolina) free black sailors were literally infected and required segregation Some states even went so far as to label their Seamen Statutes as quarantines. 46 Hunt ailing from whatever contagious disease it defined, then South Carolina could similarly determine which contagions required quarantine. Since the colo nies and states had always quarantine of race was certainly legitimate. presence of a free negro, fresh from the Charleston traveler, exposed to fever, arriving in New York. 47 The Seamen Acts were going to be intimately tied to quarantines for the remainder of the antebellum period. Second, Hunt made no comm ent regarding the rights of free blacks, be they subjects, citizens, or any other legal status. Quarantine measures took no cognizance of nationality, of rights, of treaties. If one was sick and contagious, one was not allowed to interact with susceptibl e population s on shore The infection determined the segregation. Hunt never bothered to consider that free blacks might not harbor these infectious ideas. This tendency, to 45 Hunt, The Argument of Benj. Faneuil Hunt 14 15. For a general overview of the consti tutionality of treaties, see Making and the Nation: The Historical Foundations of the Nationalist Conception of the Michigan Law Review 98 (March, 2000): 1075 1319. 46 uarantine regulation. See Chapter 5 below. 47 Hunt, The Argument of Benj. Faneuil Hunt 13.


70 assume that all free black sailors automatically carried with them a desire to destroy Southern slav ery, undergirded the entire rationale for racial quarantines. interpretation of the 1815 Treaty between the U.S. and Britain proved incredibly resilient. By identifying the interpretation of numerous Crown and federal officials for over twenty years. And so long as one adhered to this interpretation of the Treaty, the subjecthood claims of Afro Britons were immaterial. Whether the y were subjects or not, the United States, or more accurately South Carolina, could restrict their entry. Only after ad dress the most fundamental issue at bar. Unlike his meanderi ng arguments over the propriety of the Seamen Law, his attack on the writ application was s imple, lucid, and direct. If Elkison wished to have his case heard in a federal forum, then he would have to navigate through the state judiciary, and then, if the State Constitutional Court ruled against him, appeal on a writ of error to the United States Supreme Court. 48 Johnson was statutorily barred from freeing Elkison via habeas corpus. 49 nothing more than grandstanding and his decision to put the most important and basic jurisdictional issue as a postscript suggests that it was he must have been surprised when Justice Johnson met his arguments head on and similarly treated the jurisdictional problem as an afterthough t. Johnson, in front of hundreds who filled the courtroom to hear his decision, began with a quick recounting of the facts of the case, 48 Hunt, The Argument of Benj. Faneuil Hunt, 18 20. There was no guarantee, however, that a writ of error, even if granted by the U.S. Supreme Court, would have bee n honored by the South Carolina courts. One only has to considering the hoopla over 14 U.S. 304 (1816), McCulloch v. Maryland 17 U.S. 316 (1819), and Cohens v. Virginia 19 U.S. 264 (1821). 49 Unfortunately, the argument of Hu counsel, Isaac E. Holmes, was not recorded. Neither, apparently, was


71 including the diplomatic correspondence between Secretary Adams and Stratford Canning. He acknowledged the two affidavi ts submitted by Elkison: one from his captain, who swore that Elkison was a subject who had resided in Liverpool for some years ; the other from Elkison made refer ence to the fact that the state courts had upheld the statute under which the petitioner Justice Johnson ted to explain how the law in question did not clash with the powers of the general government as outlined in the Constitution an Specifically, Johnson doubted that the law in question was a pol ice regulation in the first place. The only weather or if the mariner had no intention of leaving his vessel, South Carolina law mandated his arrest, and if determine his port of call, could face enslavement A free man, even a Native American who guilty of simply being aboard a ship he could no t steer, could profit handsomely by allowing an unsuspecting tar to go u p for auction. 50 to equate the seamen law to other forms of quarantine Johnson was not persuaded. Quarantine measures seek to prevent interaction between the infected and the vulnerable. Yet, the very penalty for ent 50 how captains, eager to av them. Elkison v. Deliesseline 8 F. Cas. 493 (1823), at 495.


72 off of their vessels placed in a persons abroad in the world, for introducing themselves lawfully into the very situation in which they would Whether an actual quar antine, not a bastardized form like the Seamen Law, was necessary or would be constitutional in the face of federal legislation to the contrary, its own ends 51 Since the law was not one of police, and certainly not a quarantine measure, then the law he object of this law, and it has been so acknowle dged in argument, is to prohibit ships coming into this port employing colored seamen commerce in this way, Johnson surmised, South Carolina usurped federal authority; to allow this law to remain intact would allow the states to hrow off the federal constitution [ at their ] will 52 By ignoring the federal he Union r But could the 51 Elkison v. Deliesseline 8 F. Cas. 493 (1823), at 496. 52 Elkison v Deliesseline 6. F. Cas. 493 (1823). O bviously seeing his opinion as part of a public opinion campaign, Johnson chose to have his opinion printed and published. See William Johnson, The Opinion of the Hon. William Johnson, delivered on the 7 th of August, 1823, in the case of the arrest of the British Seaman under the 3d section of the State Act, entitled, passed in December last (Charleston, S.C., 1823).


73 states regulate commerce in the absence of federal legislation? In other words, did the states have concurrent powers over commerce that were only eclipsed by an active pronouncement of Congress? Jo hnson responded, [Since this law must be one of commerce,] T his law was passed by the stat e in exercise of a concurrent right. "Concurrent" does not mean "paramount," and yet, in order to divest a right conferred by the general government, it is very cl ear that the state right must be more than concurrent. But the right of the general government to regulate commerce with the sister states and foreign nations is a paramount and exclusive right It is true that it [the Constitution] contains no prohibition on the states to regulate foreign commerce. Nor was such a prohibition necessary; for the words of the grant sweep away the whole subject, and leave nothing for the states to act upon. Wherever is the case, there is no prohibitory clause interposed in th e constitution. Thus, the states are not prohibited from regulating the value of coins, or fixing a standard of weights and measures, for the very words imply a total foreign can regulate commerce, what commerce can it not regulate? 53 In coming to this conclusion, Johnson was articulating a nascent form of the Dormant Commerce Clause, that Congression al silence was a binding mandate for unrestricted commerce. 54 But Johnson did not have to depend on this broad reading of the Commerce Clause and infer the meaning of Congressional silence. The federal government had already made its will manifest throug h its treaty making power. esire to protect British merchant s and shipmasters (if not exp l icit ly sailors) engaged in the Un ited States had already been codified in the 1815 Commercial Convention between the U.S. and Britain. The treaty prec ludes laws that If individual sailors might be quarantined (though not in the manner outlined in the Seamen Act), black British me 53 Elkison v. Deliesseline 8 F. Cas. 493 (1823 ), at 494 495 54 Six months after Johnson handed down this decision, Daniel Webster articulated a similar conception of the Commerce Clause when he argued against the New York steamboat monopoly in Gibbons v. Ogden 22 U.S. 1 in that case expands the ideas he sketches out here in Elkison See Chapter 4 below.


74 The treaty specifically protected all British subjects. 55 Johnson explained, The object of this law, a nd it has been so acknowledged in argument, is to p rohibit ships coming into this port from employing coloured seamen, whether citizens or subjects of their own government or not. But if this state can prohibi t Great Britain from employing her coloured subjects (and she has them of all colours on the globe), or if at liberty to prohibit the employment of her subjects of the African race, why n ot prohibit her from using those of Irish or Scottish nativity; if the colour of his skin is to preclude the Lasc ar or Sierra Leone seaman, why not the colour of his eye or his hair exclude from our ports the inhabitants of her other territories? 56 Rephrased, Johnson was stating that black British subjects were as entitled to treaty protections as white British subjec ts, and South Carolina had no authority to determine how Great Britain defined subjecthood. 57 Like in the Missouri debates, Johnson assumed subject status as determined by British custom and law. The affidavits of the master and of Elkison proved the sail Before ending his decision, Johnson also pointed to the fact that the original 1822 Seamen type of language allowed for a broad spectrum o f prospective perpetrators, and the Judge groups were historically Therefore, without a clause in the law specifically excluding these groups, they were liable to 55 Elkison v. Deliesseline 8 F. Cas. 493 (1823), at 496. 56 Johnson, The Opinion of the Hon. William Johnson 57 Elkison v. Deliesseline 8 F. Cas 493, quote at 494.


75 incarceration and potential enslavement, and at the sole discretion of the arresting sheriff. Even members of the United States Navy were not exempted. 58 Seamen Act. It could result in the enslavement of a Massachusetts Indian. It defeated its own ends by introducing Commercial Convention between the United States and Great Britain (and the rights of black state and international commerce. section of the state act now under consideration, is unconstitutional and void, and that every arrest made under it subjects the parties making it to an That being said, however, was correct. Prisoners in state c ustody remained beyond the reach of federal writs of habeas corpus. 59 In terms of the dangerous Atlantic, Johnson lamented the Seamen Law as bad policy. Johnson explained how the unwarranted fear provoked by Vesey had the potential of cutting the beneficia If this law were enforced upon such vessels, retaliation would follow; and the commerce of this city, as feeble and sickly comparatively as it already is, might be fatally injured. Charleston seamen, Char leston owners, Charleston vessels might eo nomine 60 58 Elk ison v. Deliesseline 8 F. Cas. 493 (1823), at 494, 496. Critics were quick to harangue Johnson for specifically referencing Nantucket Indians frequent employees of Massachusetts shipping corporations as incendiary and promoting sectional discontent. Charleston Mercury, August 22.1823. 59 Elkison v. Deliesseline 8 F. Cas. 493 (1823), at 497. 60 Elkison v. Deliesseline 8 F. Cas. 493 (1823) at 494 495


76 Far from preserving the boons and negating the evils of the Atlantic, the Seamen Law guaranteed antic and, with it, s economy. South Carolina Associa tion. Elkison received n o redress ; nonetheless, a federal court ruling had just destroyed the legal edifice on which the arrests were conducted. However, the South Carolina Association appeared content to ignore the Elkison ruling, and, in effect, nullify the opinion of a federal judge by continuing to force local law enforcement to arrest black sailors. And as aggressive as the Associ ation was to have the law enforced, the government of South Carolina was equally as passive in letting the Association operate unencumbered. opinion was less than satisfying for the Association despite their efforts to ignore it, the publicati Carolina infuriated it. 61 A commotion must have arisen, as Hunt decided to publish his argument d his motivation for publishing his opinion, feeling Johnson not only ruled incorrectly, but also distorted his case should be reported, or his arguments stated with at least as much plausibility as they were originally always safer to argue too much than 62 61 Morgan, Justice William Johnson 197. 62 B.F. Hunt, The Argument of Benj. Fanueil Hunt 1 2. Emphasis in original.


77 63 in London received word that a British sailor was imprisoned in Charleston under the supposedly defunct state law. The Foreign Office forwarded this information again to Secretary of State Adams, complaining that his previous guarantees were ineffectual. 64 While Adams contemplated his reply, a ferocious debate Association. Johnson had stepped out on a limb by engaging the issues of federalism and citizenship i mplicit in the Seamen Act feel the consequence. Besides revealing the rift in American constit utional thought the debate in the Charleston press also highlighted t he competing visions of Atlantic and If Elkison remained good law and emerged as the authoritative interpretatio n of the Constitution, Elkison pponents contended, then South Carolina would be powerless to protect its shores from the dangerous Atlantic, at least as long as it remained in the Union. By employing Atlantic imagery to link the expansion of federal power with slave rebellion and emanc detractors helped to polarize white Charleston and dislodge the sanctity of Union as one of the ogy. The debate over Elkison began when the Charleston Mercury published a series of ess ays Under the pseudonym Caroliniensis, Isaac Holmes and 63 According to one newspaper report, over 150 sailors were incarcerated under the 1822 law by October, 1823, Elkison. 64 Addington to Adams, 23 August 1823, and Addington to Canning, 29 August 1823, in Correspondence 3 5.


78 Robert Turnbull 65 penned over a dozen articles in which they relentless ly denigrated Johnson and his opinion impugning the Judge for his legal reasoning, his courtroom etiquette, and his la ck of respect f or the s Though the two attorneys were primarily rights as the o nly viable vehicle with which to protect slavery within the current constitutional order, they situated their arguments and the likely consequences of Elkison in a blatantly Atlantic context. Their first essay, published just a week after the opinion was uttered, did not begin with treaty making power, or any other overt constitutional issue. Rather, the first critique of Elkison ridiculed Holmes and Turnbull, the only hard evidence that Elkison was a Jamaican mulatto and fugitive slave from own affidavit, an instrument statutorily un available to blacks in South Carolina. 66 Even if Elkison was a Jamaican, the Caroliniensis authors argued, he was still a mulatto, and, therefore, unable to claim all of the rights of a British n linear digression from the Jamaican law Turnbull and Holmes harangued Johnson on this point. How could a simple trip from Jamaica to him no more a British subject than it would make the writer himself a British subject by going to 65 Scholars have uniformly agreed that Turnbull and Holmes authored the articles. See, for example, Morgan, Justice William Jo hnson 197; Edward Rugemer, The Problem with Emancipation: The Caribbean Roots of the American Civil War (Baton Rouge, La., 2008): 66 For reasons unknown, the Caroliniensis authors ignored the affidavit of E


79 Of course, because Caroliniensis was about to prove that the Seamen Act was not a commercial law, but a quarantine measure, then t his extended rumination status was ultimately moot 67 But in terms of understanding c onceptions of British subjecthood in the United States, this digression is quite revealing. A week after this first essay hit the Charleston press, Justice Johnson pseudonymously respond ed to the many aspersions cast against his honor and his logic. Johns on began his defense of Elkison by refuting regarding the relationship between rights and subjecthood. 68 all entitled to none 69 maintained gradations of ra nk, and the fact that Elkison did not possess the full panoply of rights did not disqualify him from basic treaty protections while in the United States. Turnbull and on subject. Johnson saw a vassal under the protection of the British flag and a man thereby protected by existing treaties. Importantly, both sides of this debate emphasized the importance of British 67 Charleston Mercury August 15, 1823. 68 Justice William Johnson 199 202. 69 Charleston Mercury August 26, 1823. Emphasis in original.


80 conceptions of subjecthood in determining the applicabi lity of the treaty to mariners like Elkison. 70 prefaced Caroliniensis second complaint, namely that the Judge overstepped his judicial authority by ruling on the constitutionality of law. S f 70 It was within his second number that Caroliniensis actively engaged in the legal definition of race that formed a gth the Elkison decision, specifically the passage with which Johnson supposed that Nantucket Indians and Moors were subject to the Seamen Act under the f raising the eyebrows of their northern brethren, especially those in Massachusetts who are in the regular habit of employing Moor, and last of all, that a Nantucket Indian Seamen, in whose veins flows the blood of the aboriginal of the without the form of trial sold and deemed a slav and explicitly defined persons of color in concrete terms. According to this critic, every student of South Carolina ally the subgroups of slaves, free blacks, mestizos, and mulattos, and not people of Native heritage. perfect term, as it could cover the widest range of racial possibilities, so long as the individual in question descended which the sta variable handicaps across the Atlantic among the Spanish, the French, and the British rhetoric against the hastiness of the South Carolina Legislature in passing the law was geared towards producing Charleston Mercury August 16, 1823. Johnson ridiculed y to those with African blood well known to those who know any thing [sic] of the Statute Law of the country, that both the Indian and the Moor are repeatedly conceded. Typically, Johnson erm free person of color] is the converse of white men generalities, and Philonimus was quick to declare the flui B ut every professional man very recent introduction into our statute law, and may be sometimes construed in a more general, sometimes a more nomenclature peculiar to themselves. Our statute book is our standard. an international context, t another, a more expansive one, South Carolina Review Charles ton Mercury August 27 1823.


81 ever [sic] 71 In muc h the same style of the dangerous Chief Justice John Marshall, Johnson was overstepping his judicial boundaries by annulling the Seamen Act in dicta consolidation of the nation and the concentra tion o f power in the national capital, and they would ignore judicial restraint in accomplishing their agenda. But for Caroliniensis, propriety was much more than an institutional faux pas. Th e consequences of Elkison were dire. In the ir fifth essay Turnbull and Holmes explain ed why the Elkison decision was so potentially dangerous to the very existence of South Carolina. [Johnson] knows the unfavourable feelings which the Act was calcu lated to excite abroad; then why not at the same time, give some Caroliniensis continued, He [Johnson] sees the colonial interests of the British Empire, about to be im molated on the altars of folly, and every branch of trade connected therewith, about to be surrendered to the fanaticism of a thousand Wilberforces. He hears the petitions of the colonies. They address their cruel and unnatur al parent, to spare and not like Saturn destroy her own children Let him go over sections of this motives, stalling abroad as a pestilence. Caroliniensis did not hesitate to identify the source of t hese malicious motives, all that 72 71 Charleston Mercury August 15, 1823. 72 Charleston Mercury, August 22, 1823. Emphasis in original.


82 Accordingly, Charlestonians should view through this Atlantic prism in the context of the rising tide of Northern, Br itish and French antislavery. South Carolina ought not to be judged for its decision to limit the movement of dangerous free black sailors. After all, Turnbull and Holmes explained, it was the revolutionary Atlantic that had transformed black mariners f rom welcomed sight to eyesore. Before the French and of emancipation] existed at all, they existed only in the minds of a few e the] abolition society of Philadelphia, the British Association in London, and the Amis des Noirs French and Haitian R madn to unsettle the principles of obedience, and subordination in the minds of men whether bond or es that chose not to regulate the influx of persons of color armed with ideologies of revolution. 73 The deployment of Haiti was certainly strategic. Charlestonians knew that Vesey had Haitian connections, and the Caroliniensis authors hoped to capitalize o n the recent hysteria in Carolina consciousness. In their strategy to vilify Elkison the vivid imagery of Haiti was imminently useful. but to say that if the people of the Northern State s shall desire a commerce with the Emperor of Hayti [sic] and they are now complaining that they have not this trade, that the President and Senate may permit the brigands of St. Domingo to come here freely and securely, with their cargoes, and we must qui etly and tamely submit? To make sure the point was not missed, they 73 Charleston Mercury September 6 1823. Emphasis in original.


83 continued, federal government] as to have the blacks of the West Indies and of the world, to be forced on rape of South Carolina society. And this wholesale sexual as sault on the virtue of South traders of Great Britain (and she will probably have a few hundred thousand of them, if Wilberforce and his aide de camp Buxton be not co nfined in a mad house) into our state, and here to reside conjunction with the material interests of the North were combining to achieve nothing less than the wholesale rape and p illaging of South Carolina. Moreover, Elkison must be resisted because Britain was toying with the idea of free its slaves and possibly making them subjects. If emancipation were to occur, then Elkison would demand the free ingress of Afro Britons into S outh Carolina. 74 Obviously, Johnson was not persuaded by this logic. The Atlantic World was changing, and South Carolina had to come to terms with these changes. Simple global demographics demanded that the Caroliniensis authors and their comrades e x a m i n e c l o s e l y the ramifications of their position. The time may not be far distant, when we shall see the new and the old world arrayed against each other on the vital principles of all free governments. And when many millions of people, three fourths of them colored, I mean the inhabitants of the South American providences, may invite us to a most lucrative intercourse. Shall the states mar and incumber [sic] the interests, not only of the United States, but of half the World, by unlimited exercise of e 74 Charleston Mercury September 6, 1823.


84 Johnson was thoroughly convinced that future of foreign policy demanded a more congenial nations. The financial and political repercussion s of limiting comm were all too obvious. Turnbull and Holmes were increasingly fearful of the changing Atlantic World ; Johnson may have been wary, but understood that South Carolina could not sequester itself and still prosper. Thus, when the South C arolina Assembly met for their winter term in 1823, they confronted a legal quagmire as they considered amending the 1822 Act. The U.S. Department of State, an organization of Northern shipmasters, and a federal court ruling pressured the legislature to a nnul the law outright. Yet, a homespun organization of instrumental local personalities clamored for continued enforcement, and the state judiciary had declared the law constitutional. Ultimately the state legislature did amend the 1822 Act. To a certai n extent, the revi sion was more lenient; it exempted free black sailors aboard war vessels of the United States as well as foreign countries, so long as they stayed on board their vessels. This exemption was more an act of pragmatism than benevolence. Ch arleston sheriffs would be hard pressed to board a warship and remove enlisted men The revised statute also mandated that i ncarcerated sailors left behind by their ships be expelled from the state and whipped upon return, instead of enslaved. T he law al so streamlined the enforcement process, setting straight the dispute between harbormaster and s heriff regarding the acquisition and dispersal of gaol fees. The Sheriff was personally responsible for the enforcement of the Act; any dereliction of duty in e nforcement would leave the Sheriff liable to be fined $500, with the informer receiving half. 75 This gave a 75 (Columbia, S.C.)


85 monetary incentive for the South Carolina Association to continue its oversight of the Seamen T he revised statute also explicitly segregated from the domestic colored population. It American Indians, free Moors, or Lascars, or other colored subjects of countries beyond the Cape of Good Ho 76 Th e aim was obvious; Atlantic savvy free blacks, armed with knowledge of the revolutionary Atlantic and its ascending abolition societies, must not infiltrate the state. persons beyond the Cape of Good Hope in other words beyond the Atlant ic who came into Charleston would not be molested. The legislature believed that the true threat to South Carolina came from black Atlantic sailors. However, t his new definition inadvertently allowed a new defense for those suspected of contravening the Seamen Law. Despite the best efforts of antebellum (and postbellum, for that matter) law, racial categories and the ascriptive traits that defined them were hardly obvious or objectively evident. Proving race was often a difficult chore. 77 In all, the d ebates between Philonimus and Caroliniensis lasted just short of two months, session. The debates within the South Carolina state government lasted an even shorter ti me, 76 Acts of South (Columbia, S.C.). 77 Yale Law Journal 109 (200 0): 817 Century Yale Law Journal 108 (1998): 109 188.


86 less than a couple of weeks. However, the debate over the Seaman Act had just begun, and the forum for the debate was growing ever larger. The spirited conversations over the enforcement of the Seamen Act were gaining a wider audience, and the determ ination of the South Carolina Legislature to enact a more streamlined law only assisted in sensationalizing the issue even further. The new statute flew in the face of a federal court ruling and endorsed the constitutionalism of the South Carolina Associa tion. South Carolina was going to continue to protect itself from the dangerous Atlantic, the exertions of Secretary Adams the subjecthood claims of Afro Britons, and the judicial power of J ustice Johnson notwithstanding. And whether lawmakers denied the ability of federal officials to meddle in their domestic racial policies. In understanding the first year of the Seamen Act, one must recognize the local, national, a nd Atlantic variables at work. In Charleston, the Seamen Act might have died in its infancy, if and prestigious member list prevented a formidable opposition to develop in Charleston itself. The goal of this local, ultra legal institution was to enforce the state Seamen Act, but its motives were explicitly Atlantic, as the essays from Robert Turnbull and Isaac Holmes attest. In their reaction to Justice Johns Elkison they explained that the law was absolutely necessary considering the spike in the number of Atlantic abolition societies and the naivety of British metropolitan authorities who were considering an empire w i t h o u t s l a v e r y In viewing t he Atlantic fr om a f ar d i f fe re nt perspective, Justice Johnson explained the short sightedness of t his p o s i t i o n wh i c h seemingly ignored the fact that the vast majority of the Atlantic World was n o n w h i t e Barring free people of color, Johnson re asoned, was the same as destroying


87 instituted by British consuls on behalf of British sailors. At the national level, neither Congress nor the State Department wanted to engage in a frontal assault on the Seamen Act against South ignore a petition from aggravated Boston shipmasters. Secretary of State John Quincy Adams largel y evaded the protests of British ministers in Washington, only offering assurances on the assumption that local officials in Charleston would see the inefficacy of the Seamen Statute without overt federal interference. And at the heart of the connection between the local, the national, and the Atlantic was the discussion of the rights of black sailors. Across the Atlantic, free people of color experienced a citizensh national level, however, the lack of specific rights in the individual states did not automatically correlate to the absence of citizenship. Different states conceptualiz ed citizenship in different ways, some states so expansively as to include people of color despite their inability to exercise all the rights that white citizens possessed. But the incongruity across the nation cause d problems, as the Second Missouri Cris is so powerfully illustrated. Best to leave the questions of federal African American citizenship unanswered. But despite the wide variations concerning the citizen of free people of color, a consensus seemed to exist about where citizenship originated. It was a locally determined status; Massachusetts would decide who comprised its citizenry, the same for New York and South Carolina. The disagreement was not whether each state could determine its own citizenry, but whether the lack of specific rights di squalified people of color from citizenship. Put simply, South Carolinians would not deny the citizenship of free blacks from Massachusetts because South Carolina did not recognize black citizenship. Rather,


88 they would deny it because Massachusetts free blacks did not exercise the full panoply of citizenship rights in Massachusetts When those same South Carolinians considered black British subjecthood, they employed the same logic, denying subjecthood because of the legal handicaps black Britons faced i n their home jurisdictions. Subsequently, the Seamen Act did not violate the citizenship or subject rights of anyone, as none of the incarcerated sailors were citizens or subjects. In less than a decade, this method of deducing citizenship would prove ine ffectual against a British Empire that was altering the face of its realm of subjects. But before the Seamen Act through the murky waters of federal commercia l authority and the Marshall Court.


89 CHAPTER 4 LEGITIMATING RACIAL QUARANTINES: THE JACKSONIAN MANIPULATION OF GIBBONS V. OGDEN By the end of 1823, constitutional battles lines had been drawn. The dangerous Atlantic convinced anxious Carolinians to preve nt the introduction of all foreign free blacks in hopes of preempting the spread of revolutionary ideologies of liberty and freedom to the enslaved. The State Assembly obliged and passed a law forbidding all free black sailors from entering the state upon pain of imprisonment, probably in response to the revelation that Denmark Vesey employed free black sailors to communicate with Haiti and West Africa. The South Carolina Constitutional Court upheld the Seamen Statute explicitly in Calder v. Deliesseline and a voluntary group of prominent Charlestonians formed the South Carolina Association to assist (or force) local police officials to execute the Seamen Law and other race specific regulations. When Supreme Court Justice William Johnson struck down the Seamen Law in federal Court in native city. Johnson claimed the Seamen Statute violated federal treaties and usurped Congressional authority to regulate i nterstate commerce. Carolina Association continued to demand enforcement, and Secretary of State John Quincy Elkison the South Carolina A ssembly re enacted the Seamen Act in its December, 1823 session. T he state legislature reasserted its police power to regulate the ingress of specific colored people into the state, regardless of the subsequent incidental impact on interstate or internat ional commerce. Despite the recalcitrance of federal officials to overtly intervene (William Johnson excepted), the combination of Elkison and the 1823 revised Seamen Statute had set the stage for a potential constitutional show down. And in 1824, the S upreme Court heard the great steamboat case, Gibbons v. Ogden in which the interface between state regulatory laws and


90 federal commercial authority took center stage. Though Gibbons might have had a definitive impact on the Seamen Act controversy in Sout anticlimactic. The Chief Justice left quarantines in a type of constitutional purgatory, and both This chapter traces the i mpact of the ambiguous Gibbons decision on the Seamen Act controversy. Ultimately, the ascendance of the Jacksonian Democrats resulted in federal endorsement of the Seamen Acts and a restricted interpretation of the Commerce Clause. By 1831, the Commerce Clause proved to be an impotent weapon against state racial quarantining. In the fall of 1823, Benjamin William on the Elkison decision spread across the country, and several newspapers chose to reprint the entire decision verbatim 1 The nation took note of the constitutional dilemma s arising from the Elkison case, and the sensationa lism increased dramatically after the rhetorical war in the Charleston press between Johnson and Robert Turnbull and Isaac Holmes The fig hti ng was so intense that Chief Justice John Marshall sent a letter to Joseph Story regar lamented has hung himself on a democratic snag in a hedge composed entirely of thorny state rights in South Carolina, and will find some difficulty, I fear, in getting off into smooth open He could not have been more prescient. William Johnson never considered Charleston home after his skirmish with the South Carolina Association, choosing to reside in Philadelphia bet ween his circuit riding and Supreme Court sessions. Elkison ] dicated that soon there might be a case before the Supreme Court dealing with the Seamen Act, and he joked about the 1 See Charleston Mercury August 15, 1823 through October 7, 1823.


91 problems such a case might pose. Marshall remarked to Story that he once had the opportunity to expand extensively on the Commerce Clause in a case back in 1820, but he refused to do so. 2 Marshall was soon to have another chance to adopt a broad reading of the Commerce Clause, but his cognizance of political fallout after Elkison (which mirrored the reaction to McCulloch four years earlier) motivated him to relegate his broad understanding of the Commerce Clause to dicta The Georgia legislature did not share of ficially discussing the issues in Elkison ; w hen it joined the chorus infamous decision at its winter 1823 session, it did so in grand style. The Georgia Assembly proposed an Amendm ent to the Federal Constitut ion and sent it to the other state legislatures and to Congress along with a stout defense of South Carolina Short and emphatic, the proposed amendment read, ought to be construed, or shall be construed to authorize the importation or ingress of any person The Mississippi Legislature endorsed the a mendment, but it did not garner enough sup port to be submitted to Congress Its very circulation however, demonstrates that the Seamen Act issue had entered the national political discourse and with varying degrees of approbation. 3 2 See John Marshall to Joseph St ory, September 26, 1823 in Charles Hobson, ed., The Papers of John Marshall, Volume 9 (Chapel Hill, N.C., 1998): 338. Brig Wilson v. U.S. 30 F. Cas 239. In dicta, Marshall declared that Congress had unilateral and ultimate authority over all interstate a nd international commerce, using very similar language that Johnson used in Elkison as well as language similar to that found in Gibbons See also, William Journal of Ameri can History 65 (June 1978): 34 59. 3 Acts and Resolution of the State of Georgia (1823): 231. The states of Maine and Ohio voted against it. See Journal of the House of Representatives for the State of Delaware (1825): 9 10. Mississippi endorsed the am endment. Laws of the State of Mississippi (1825): 138. See, generally, Herman V. Ames, The Proposed Amendments to the Constitution of the United States during the First Century of Its History (New York, 1970).


92 decision to circulate a constitutional amen dment reveals their unease about the current The Seamen Act was also causing a commotion internationally. The British Foreign Office, aware that South Carolina was continuing t o inc arcerat e its subjects, began again its solicitation of the State Department. The Board of Trade feared the problems that the Seamen Act would have on future commercial relationships between the United States the British colonies in the Caribbean. Th e Foreign Office, however, despite its understanding of the complexity of the American federated system of government, still felt compelled to direct its diplomatic attention to the State Department in Washington, confident that the Federal Government woul d be in the best position to alter the contemptible policy in place in South Carolina. 4 Secretary Adams continued to be involved with negotiations with Br itish diplomats and While it is doubt ful that Adams was referring explicitly to the upcoming Supreme Court session, he might have understood the relationship existing between the recent Elkison decision and the pending Steamboat Case from New York, Gibbons v. Ogden If the Supreme Court rule d expansively in Gibbons then the future of the Seamen Act would be in serious jeopardy. The well known facts of the case of Gibbons v. Ogden do not need to be restated here. 5 What is important for current purposes are the arguments of counsel regarding the exa ct contours of federal authority over commerce and the relationship between commercial and police powers Elkison had raised some controversial questions. Could the states regulate commerce if the 4 Correspondence relative to the Prohibit ion against the Admission of Free Persons of Colour into certain Ports of the United States, 1823 1851 Series 5, Volume 579, Foreign Office Papers Public Records Office, London (hereafter referred to as Correspondence ): 6 8. 5 For a brief summary of the facts of the case and i t s course through the New York Courts, See Norman R. Williams, New York University Law Review 79 (2004): 1406 1410.


93 federal government had not explicitly legislated on a particular item? Were quarantines and pilotage laws commercial regulations? What was to happen if state police laws contravened federal commercial laws? When Thomas Gibbons began transporting passengers from New Jersey to New York in violation of a New York statute granting Aaron Ogden a monopoly on that particular traffic, some of the questions from Elkison demanded answers from the High Court. Daniel Webster, on behalf of Gibbons, began the oral arguments on February 4, 1824. For Webster, the pre vailing reason for the actual adoption of the Constitution was to correct the significant errors found in the Articles of Confederation. None of these errors were more pressing than the hindrance of interstate commerce. With the various states able to re gulate trade independently, the result was commercial networks operating under the Articles. 6 Regardi ng claims of concurrent power over commerce, Webster was emphatic. We do not find, in the history of the formation and adoption of the constitution, that any man speaks of a general concurrent power, in the regulation of foreign and domestic trade, as stil l residing in the States. The very object intended, more than powers must be exclusive; that is, the higher branches of commercial regulation must be exclusively committed to a single hand. What is it that is to be regulated? Not the commerce of the several States, respectively, but the commerce of the United States. Henceforth, the commerce of the States was to be an unit; and the system by which it was to exist and be gover ned, must necessarily be complete, entire, and uniform. 7 After explicitly refuting concurrent power over commerce as the original intent of the Framers, Webster followed in the steps of Johnson in Elkison For Webster, in those cases when Congress 6 Gibbons v. Ogden 22 US 1 (1824), at 14. 7 Gibbons v. Ogden 22 US 1 (1824), at 16, 17.


94 remaine d silent, or dormant, on an issue of commerce, in those instances when Co ngress had not acted, its intent was to leave that particular aspect of commerce unregulated. Here, then, is the full articulation of the Dormant Commerce Clause : ion does not consist in restraint; and that which Congress sees fit to leave free, is a part of its regulation, as much as the 8 Advocates of concurrent power looked to quarantine laws, pilot laws, toll roads, and o ther established powers of the s ta tes as evidence that Congressional power was hardly plenary. For Webster, however, these various laws were not commercial regulations per se Rather, they were police regulations that happened to have an incidental i mpact on commercial activities. Quara ntine was a health reg ulation above all else. If the qu arantine law was enacted for another primary purpos e other than health regulation or if it unnecessarily affected commercial activity, than the law risked being an unconstitutional violation of the Co mmerce Clause. And although Webster never explicitly identified which governmental organ would make such a determination, he would most likely have wanted the federal courts to be that authority. 9 But Webster agreed with Benjamin Hunt, Robert Turnbull, a nd Isaac Holmes, laws passed for the safety and welfare of the citizens of a state were not on their face violations of the Commerce Clause. However, by hin ting that a federal agency ought to be a police measure or a commercial regulation, Webster was etching out a powerful role for the federal judiciary. Thomas Oakley and Thomas Emmet, arguing for Ogden and in favor of upholding the New York monopoly law, echoed many of the claims brought forth by B.F. Hunt in th e Elkison case the previous summer. Oakley was adamant that the individual states were independent 8 Gibbons v. Ogden 22 US 1 (1824), at 22. 9 Gibbons v. Ogden 22 US 1 (1824), at 25.


95 nations with absolute authority within their jurisdictions upon signing the Declaration of Independence. With the signing of the Constitution, the states o nly relinquished limited, specific, enumerated powers to the national government. The national constitution must, therefore, be construed strictly, as regards the powers expressly granted, and the objects to which those powers are to be applied. As it is a grant of power in derogation of State sovereignty, every portion of power, not granted, must remain in the State Legislature. 10 Elkison was grossly misstated. If the Constitution does not prohibit the States from acting, like in coining money or regulating commerce, then the States may constitutionally enact such measures. Just because the Constitution empowered the national government did not automatically prevent the States from acting. Only in those occasions when the national government has exercised its specific enumerated power, like national laws regarding currency, were the state s prevented from enacting similar legislation In short, Oakley denied the d ormant power of the federal government. Only positively ena cted laws of Congress dealing with explicitly granted powers, would divest the states of their powers to legislate on a specific topic. So even if defenders of the Seamen Acts conceded that they were commercial regulations per se (a position fewer and few er would take after Gibbons ), they were to remain in applied, then Elkison was bad law, and the states had no obligation to abide by its mandates. United States At torney General William Wirt presented the final oral argument to the Court and like Webster argued on behalf of Gibbons Unlike Webster, Wirt accepted concurrent powers, but identified certain forms of commerce regulation that had to remain firmly within the purview of the national government. While Wirt was ambiguous a bout the exact line separating state and f ederal regulatory power over commerce, he was quite certain that interstate and 10 Gibbons v. Ogden 22 US 1 (1824), at 43.


96 international navigation should be the sole doma in of the national government. He was, however, equivocal on the interface between the police powers of the state and enumerated powers of the Federal Government. 11 It took three weeks for the Justices to hand down the opinion. John Marshall, as was his custom, wrote the o pinion for the Court. He had several options open to him considering the breadth of arguments presented at bar. Each of the four attorneys considered the interpretation of the Commerce Clause to be the most analytically relevant part of the decision, yet Marshall did not rest his decision on the Commerce Clause. 12 In dicta he reiterated much of what Webster laid out in the ope ommerce was not to be narrowly construed; it encompassed traffic as well as i ntercourse and navi contention that ships carrying passengers ( and not marketable goods ) ought not to be considered eligible for commercial regulation. 13 Furthermore, Marshall sided with Webster that no concurrent power of commerce regu lation existed under the Constitution, unlike the concurrent power of taxation. And most importantly for the purposes here, Marshall agreed with defense counsel, as well as Webster, that quarantine laws and pilot laws were actually elements of police powe r and not essentially regulations of commerce. restrictions of commerce caused by such police laws, were constitutional according to the great Chief Justice. 14 Marshall did not identify the exact contours delineating co mmerce regulation, expressly granted to Congress, and police laws like quarantine, explicitly reserved to the s tates. Nor did he 11 Gibbons v. Ogden 22 US 1, at 157 185. 12 13 This position would be reiterated in Ne w York v. Miln 36 U.S. 102 (1837). 14 Gibbons v. Ogden 22 U.S. 1 (1824), at 186 199.


97 articulate a rule to determine which type of law would be paramount. But considering the case before him, h e did not have to. After leading the courtroom throu gh his wholesale endorsement Marshall refused to make it the basis of his argument, and t 15 Marshall then explained that the New York monopoly law was unconstitutional not because of any broad reading of the Commerce Clause, but because it came into direct conflict with a n obscure act of Cong ress passed three decades before. In passing the Federal Navigation Act in the 1790s, Congress had clearly legislated on the process by which coast ing licenses were to be granted, and when the New York monopoly forbade Gibbons, who held a federal license, from engaging in his co asting business, the monopoly conflicted with federal law. For this reason, because the New York law explicitly conflicted with a federal statute, the state must yield on the basis of the Supremacy Clause 16 Marshall intentionally an d specifically sidestepped W Dormant Commerce Clause position and deviated from the path blazed by Johnson in Elkison In his concurring opinion, Johnson ventured where Marshall only investigated. He emphatically endorsed the Dormant Commerce Cl ause, a view he advocated since Elkison New York had overstepped its constitutional powers by impeding commerce, the regulation of which was the plenary power of Congress. The law of nations, regarding man as a social animal, pronounces all commerce le gitimate in a state of peace, until prohibited by positive law. The power of a sovereign state over commerce, therefore, amounts to nothing more than a power to limit and restrain it at pleasure. And since the power to prescribe the limits to its freedom, necessarily implies the power to determine what shall remain unrestrained, it follows, that the power must be exclusive; it can reside but in one 15 Gibbons v. Ogden 22 US 1 (1824), at 209. 16 Gibbons v. Ogden 22 US 1 (1824), at 209 222.


98 potentate; and hence, the grant of this power carries wit h it the whole subject, leaving nothing for the State to act upon. 17 monopoly law was still unconstitutional. While Marshall rested his decision on the now well established Supremacy Clause, Johnson articulated a new, broa d conception of the Commerce Clause As for the Seamen Act Johnson never explicitly engaged them in Gibbons nor did he ever contemplate any quarantine laws in general. However, he did mention briefly inspection laws, and that discussion deserves atte ntion because of the legal proximity between inspection laws and quarantine regulations Though the States reserved the power of inspection, Johnson reasoned, the Federal Government exercised oversight of this power because of its plenary power over comme rce. Johnson explained, Inspection laws are of a more equivocal nature, and it is obvious, that the constitution has viewed tha It was obvious, that inspection laws must combine municipal with commercial regulations; and, whi le the power over the subject is yielded to the States, for obvious reasons, an absolute control is given over State legislation on the subject, as far as that legislation may be exercised, so as to affect the commerce of the country. 18 As such, the Federal Government would exercise oversight of state inspection laws because they had an impact on int erstate and internat a commercial law it was an ower to regulate co mmerce. But even if it was considered to be a police law, the federal government could step in if it determined that the state law unnecessarily impeded interstate or international commerce. Whether Johnson believed that Congress had to step in, or if fe deral judges could make such a decision, we do not know. But, considering his position in Elkison it appears as though he 17 Gibbons v. Ogden 22 US 1 (1824), at 227. 18 Gibbons v. Ogden 22 US 1 (18 24), at 235 236.


99 would endorse the power of the fe deral court s to determine the reasonableness of state in spection and quarantine laws, including the Seamen Act Marshall, on the other hand, by hedging of the Dormant Commerce Clause, provided a far less extensive position of the Court, remained silent as to the exact relations hip between state police powers including quarantine and the S eamen Act and federal power to regulate commerce. Ultimately, the ambiguity in Gibbons provided powerful ammunition f or proponents of the Seamen Act in South Carolina The legitimacy of El kison had been undermined, and the power of the federal courts to interfere in the administration of quarantine laws did not receive the official endorsement of the Court. caused confusion about the application of Gibbons in the Seam en Act controversy. Some commentators believed that Gibbons established the broad national powers set out by Webster and endorsed by Johnson, and thereby destroyed the Seamen Acts altogether. Others highlighted the vindication of state policing powers th at Marshall identified as legitimate. Along these lines, the Seamen Acts were constitutional up until Congress specifically refuted them in positive legislation. Still others saw the decision for what it was, a political and constitutional compromise tha t sought to establish national power without provoking further between federal regulator y power over commerce and state powers of inspection and quarantine In Gibbons Elkison did not receive the blessing of the Supreme Court, and the resulting inconsistency legitimated the recalcitrance of South Carolina officials who continued arresting free black mariners at the behest of the Association. Despite the fac t that Gibbons did not reinforce Elkison it also did not refute it. Some protestors of the Seamen Act remained hopeful

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100 that the Supreme Court might overturn the obnoxious law and use the opportunity to officially interpret the Commerce Clause. Less than a month after the Gibbons decision was handed down, a minister in the British Consulate in Washington suggested that the Foreign Office pursue such a test case. One British diplomat suggested, the most certain mode of settling the question [of the Seamen Act] would 19 By going to the Supreme Court, the Foreign Office could bypass t he State Department altogether. This would have been a welcomed change, considering Secretary Adams had twice promised that the South Carolina law would soon be no more and twice failed to deliver. 20 If the British government would agree to fund a lengthy 21 Perhaps because of hearing that such a case might be initiated by a British subject, the Monroe Administration sought the opinion of Attorney General Wirt regarding the impact o f Gibbons on the South Carolina law. Wirt was unequiv ocal. He was certain that the s tate law was in direct violation of the Constitution, and, therefore, any lawsuit brought forth by a sailor incarcerated under the operation of the Seamen Act would find a receptive ear if the case made its way to Washington. On May 8, 1824, Wirt sent his official opinion to the State Department. Wirt charted a Gibbons Like Marshall 19 Addington to G. Canning, 4 April 1824, Correspondence 8. 20 Concerning the general dissatisfaction of the Foreign Office with Adams and the State Department, see Addington to Adams, 9 April, 1824, Correspondence 9 10. 21 Addington to G. Canning, 4 April 1824, Correspondence 8.

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101 in Gibbons Wirt d odged a broad reading of the Commerce Clause, and instead, he found that the Seamen Laws violated the Supremacy Clause. 22 For Wirt, the fact that Congress had legislated on commerce at all meant that that august body had said all it intended to say on the matter. Unlike Marshall, who found a direct conflict between a federal law and the New York monopoly, Wirt did not find any direct conflict. As soon as Congress legislated in any capacity regarding commerce, it closed the door on state commercial regulat ory authority. Though not explicit, Wirt appears to deny dormancy; Congress had to ac t, however broadly, before the s tates relinquished their capacity to legislate on matters specifically granted to Congress. Wirt explained, Congress has exercised this p ower [over commerce]; and among those terms there is no requisition that the vessels which are permitted to enter the ports of the vessel which is about to enter her ports in co nformity with the laws of the United States, nor impose any restraint or embarrassment on such a vessel in consequence of her having entered in conformity with those laws, for, the regulations of Congress on this subject being both supreme and exclusive n o State can add to them, vary them obstruct them, or touch the subject in any shape whatever, without the concurrence and sanction of Congress. 23 Once Congress had passed commercial laws, then any cla ims to concurrent power by the s tates evaporated. Since Congress made no m ention of racial restrictions on foreign or interstate mariners, then it meant that no such regulations should be made. Along this reasoning, Wirt arolina is incompatible with the national Constitution and the laws passed under it, and is therefore 22 House Report 80 27 Cong., 3 sess. (1843): 35 36. 23

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102 24 However, Wirt never mentioned if the States retained power in instances where Congress had not exercised one of its enumerated powers. Wirt obv iously knew that Gibbons did not construe the Commerce and Supremacy Clause s in the same way that his official opinion did. What is likely is that Wirt anticipated litigation involving the Seamen Act to come before the Court, and he was quite sure that th e Court would follow up Gibbons the Court, would effectively allow a bypass of dormancy by embracing a very broad reading of the Supremacy Clause. Such a decision would diminish claims to concurrent power over commerce without treading into heretofore uncharted constitutional waters. In this way, Wirt was augmenting the position taken by Marshall. He, too, wanted to enhance the power of the federal government wit hout provoking ire towards the Supreme Court The most effective way to do this was to place the power in Congress. Since Congress had spoken for Marshall it was the Federal Licensing Act, and for Wirt it was any commercial law the Supreme Court had to honor the Su premacy Clause and invalidate contrave ning s tate laws Seamen Law What Wirt avoided was the possibility the Seamen Act was not a commercial law at all, and therefore not in direct conflict with Congressional law. And the lang uage of Gibbons appeared capable of supporting such a proposition While impossible to determine precisely, Marshall may have chosen to dodge the Commerce Clause because of the Seamen Act controversy. One thing is for certain, i n 1824, no one was exactly sure ho w the Supreme Court would rule if a test case made its way in front of Marshall. Adams, hearing about another incarcerated sailor 24

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103 instructed the United States District Attorney in Charleston to file suit on an American The District Attorney, himself a member of the South Carolina Association, could not follow ns because the sailor in question had already been released and supposedly had left the state. 25 Another test case was not forthcoming; Adams was about to leave the State Department and assume the White House in a cloud of controversy. Once Adams left his post as Secretary of State federal pressure to pursue a test case evaporated. The British Foreign Office also decided against initiating litigation. Despite the suggestion of at least one official, Great Britain remained committed to the less costly po licy of diplomatic jousting with the State Department. Not until the 1850s would a federal courtroom hear another case involving a Seamen Act Though Wirt and Adams appeared optimistic that an appeal to the Supreme Court would occur and likely result i n the end of the Seamen Act s William Johnson, who was on circuit in the Carolinas for the summer of 1824, could see the handwriting on the wall and doubted seriously that such a case would ever make it that far. In a letter to Adams, Johnson expressed di writs of habeas corpus and injunction I am precluded from usi captains could expect no assis having their men taken from them, or of the men, and the only mode of bringing the subject to 25 Journal of Southern History 1 (February 1935): 10.

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104 attac 26 Johnson the South Carolina court s to adjudicate against the Seamen La Johnson mailed to Adams a newspaper clip that summarized a recent post Gibbons decision. The case, State of South Carolina v. Daley created q u ite a buzz around Charleston and the newspaper summary reveals the trajectory of the Seamen Act debates in the wake of the ambiguous holding in Gibbons Amos Daley, a Rhode Island native, was arrested a second time for entering the state illegally under the 1823 Seamen Act. In his defense, Daley called three witnesses, two of whom were his captain and the first mate. Both claimed to know es of citizenship in Rhode Island To rebut, the State called two witnesses Robert Turnbull and Alfred Huger, both of who m specifically recalled speaking with the capta in who admitted to them he did not know 27 cial essence was not definitely determined, the s tate African race through external markers. C omplexion 26 Johnson to Adams, 3 July 1824. Reprinted in House Report 80 27 Cong., 3 sess. (1843): 14 15. 27 he First Nullification: The Negro Seamen Act Controversy in South Carolina, 1822 1860 (PhD Dissertation, University of Iowa, 1976): 204. Turnbull authored the 1822 Seamen Act and co wrote the Caroliniensis essays in the Charleston Mercury after the Elkiso n decision. See Chapter 3 above. Alfred Huger would come to play a role in racial quarantines in 1835, when he served as Charleston postmaster during the Abolitionist Mail Campaign.

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105 clearly evidence that he was of African descent and, therefore, in violation of the law. 28 hip. Once his race was established, his citizenship was immaterial. of the efficacy of their arguments concerning their that citizen of the State of Rhode Island. The other attorney argued that the recent case of Gibbons v. Ogden meant that the Seamen Act violated the Constitutio se. The State, represented by Isaac .E. Holmes, 29 argued that Daley had not sufficiently proven that he was not of African descent, as witnesses had been refuted by prosecution testimony. 30 Holmes also argued that the resoluti Privileges and Immunities Clause in cases dealing with racial minorities If Missouri could prevent the immigration of black citizens, certainly South Carolina could restrict their entry as well. Of course, the Missouri Compromise did not warrant such conclusions, but in South Holmes explicitly denied that Gibbons v. Ogden had any direct bearing on the case before the court. Apparently, Holmes was referring to the quarantine exemptions that Marshall listed as legitimate exercises of 28 State of South Carolina v. Daley was reprinted in Charleston Mercury June 23, 1824. For general account s on Racial Determination in the Nineteenth Yale Law Journal 108 (1998): 109 188; Jo hn Tehrenian, Yale Law Journal 109 (2000 ): 817 848. 29 Holmes was the co counsel with B.F. Hunt in Elkison v. Deliesseline He was also the sitting Solic itor for the South Carolina Association and the other author of the Caroliniensis essays. 30 Regarding questions of slave status, South Carolina law assumed all those with black skin to be slaves. So, like in the Calder case, the State was required to prov e that the accused were, in fact, slaves. However, in terms of was free of African pollutants.

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106 police power. Holmes admitted that Gibbons was somewhat ambiguous, and suggested to the We should await the judgment of the Supreme Cour t in our own case before we yield 31 The court agree d with Holmes, and Daley received thirteen lashes across his bare back. The Daley case highlights the ambiguous interpretation of Gibbons as it applied to quarantine laws generally, and the Seamen Acts i n particular. If the Seamen Law could be d for federal oversight of such state police laws, Marshall made no such pronouncement in Gibbons The relationship between quarantine and commerce remained constitutionally amorphous. B ut the lower courts in South Carolina were not the only government ag ency in the s tate that doubted the applicability of Gibbons in relation to the Seamen Act. In fact, i n their winter session of 1824, six months after Daley failed to win his case, the State Senate passed resoluti ons s position regarding the power to pass laws restricting the ingress of free blacks. stat deserves to be quoted at length. The Legislature of South Carolina protests against any claims of right, of the United States, to interfere in any manner whatever wit h the domestic regulations and preservatory measures in respect that part of her property which forms the colored population of the State, and which property they will not permit to be 31 State v Daley in Charleston Mercury June 23, 1824.

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107 meddle with or tampered with, or in any manner ordered, regulated, or c ontrolled, by any other Power, foreign or domestic, than this Legislature. 32 In even more emphatic language, the South Carolina Legislature reiterated the decision in Daley Gibbons left unanswered the interface between state police and federal commerce po wers, and the State of South Carolina, by the authority of its Legislature and courts, believed its quarantine of black sailors remained beyond the purview of Congress and the Supreme Court. Of course, even if the U.S. Supreme Court ruled the Seamen Ac t unconstitutional, South Carolina may have refused to rescind the law. This confrontation, however, was avoided by Gibbons and the recalcitrance of state officials in South Carolina. But, so long as Southern states framed laws agai nst free black sailors in terms of quarantine, then federal officials would be hesitant to interfere, at least until the ambiguity between police powers and commerce regulation could be resolved. Officials like William Wirt and some British diplomats expe cted that resolution to come on the heels of Gibbons and result in th e dismantling of the Seamen Act ; those expectations would never be realized. The political and constitutional world of Jacksonian American would provide a resolution, but not the one Wir t anticipated. The Seamen Act remained in force in South Carolina for the rest of the decade. Though n o arrest records or official court documents remain that wou ld give insight into the number of incarcerations and despite the fact that t he corresponde nce of the British Foreign Office did not mention the Seamen Act from 1824 1830 abundant evidence supports the claim that enforcement continued unabated 33 First, t he South Carolina Association was still in full force, 32 These resolutions are reprinted in Enclosure 5 in Addington to G. Canning, 2 January 1825, Correspondence 13 14. 33 the United States, and the Negro Seamen Acts, 1822 Journal of Southern History 1:1 (1935): 12.

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108 and their dedication to the Seamen A ct did not subside. 34 Furthermore, the South Carolina Assembly amended the Seamen Act in 1825, apparently in response to suspected black sailors impersonating American Indians or Lascars to avoid prosecution. Supposedly, mariners would carry doctored pape rs proving their non African heritage. 35 Furthermore, in 1826, the Charleston Chamber of Commerce sent a lengthy memorial to the state legislature asking for repeal of the The Memorial was persuasive, as the House sent a bill amending the Seamen Act to the Senate, where it eventually stalled. The amended statute would have allowed black sailors to remain aboard their vessels, along the lines suggested by William Jo hnson in the Elkison case and more closely resembling an actual quarantine. Even the more conservative Charleston Mercury ran an 36 R enewed efforts in 1827, 1828, and 1830 all failed, ea ch more drastically than last. The most likely reason for the lapse in British diplomatic and consular correspondence concerning free black sailors was the rapid deterioration of trade between the United States and the British West Indies. New duties im posed by Parliament stifled shipping between the two areas, and only after 1830 when Parliament lifted the duties, did trade resume with frequency British consular complaints about the Seamen also resumed in 1830, and when they did, they found a far less responsive federal government in place and a South Carolina Assembly dedicated to its Seamen Statute. It was the arrest of D aniel Fraser in Charleston in November 34 In fact, the South Carolina Association sought a corporate charter from the state in 1828, and when the Assembly granted the charter, the Association became a pri The South Carolina Historical Magazine 78:3 (1977): 198. 35 See Statutes of South Carolina Passed in December, 1825 (Columbia, S. C., 1826): 41 42. 36 Charleston Courier April 11, 1826; Charleston Mercury Nullification: The Negro Seamen Act Controversy in South Carolina, 1822 1860 (PhD diss., University of Iowa, 1976): 229 232.

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109 1830 that re ignited British diplomatic efforts against the Seamen Act His arrest was app arently unremarkable, and the most likely motivation for British intervention was the reopened trade routes between the British Caribbean and the United States might foreshadow hundreds, maybe thousands, of British subje cts entering Charleston, Savannah, and Wilmington. 37 The Foreign Office first chose to plead with local magistrates and law enforcement officials in Charleston, but to no avail. 38 Only after incessant attempts to secure general relaxation of the law from ci ty and state officials, did the Foreign Office again contact the United States State Department. 39 It was at the behest of British diplomats that Secretary of State Martin Van Buren contacted Attorney Gener al John Berrien concerning the constitutionality of the Seamen Acts, and from Berrien would come the official position of the federal government for the next decade at least concerning the impact of Gibbons on the Seamen Act in cheek assurance that Great Britain would soon be rid of the irritating laws, Berrien handed down an opinion that endorsed w holeheartedly the Seamen Acts. In his opinion, Berrien explicitly connected Gibbons with the Seamen Acts while undermining Van itish Foreign Office laws, like the Seamen Acts, and federal powers over commercial regulation. In defending the Seamen Acts, Berrien looked to Gibbons to support his position. In contemplating where the 37 By the time Fraser was arrested, Georgia and North Carolina had already passed their own seamen acts. See 38 Even the South Carolina Attorney General admitted that the State law wa s going to remain on the books and operational. Despite his regret, and despite the supplications of some Charleston traders, the Attorney General en Act in place without amendment. See Legar to Sheriff of Charleston, undated, in Correspondence 26 27. 39 15.

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110 authority for commercial legislation resided, Berrien was confident that Congress was the supreme, if not exclusive, power Berrien argued, I am not unmindful of what was said by the court in the case of Gibbons v. Ogden and am entirely sensible of the respectful consideration to which even the dicta of that high tribunal are justly entitled. But the proposition there announced was not essential to the decision of the pending controversy, and it ceased to be au purposes of that decision to affirm, as the court did in fact substantially affirm, that the acts of the Legislature of New York were laws affecting commerce, which conflicted in their operation with the laws of the United States, passed in the 40 As Berrien noted, the New York law was a commerce law prima fac ie However, the Seamen Acts were not commercial regulations per se They emanated from a quite different area of constitutional authority. I repeat the inquiry, then: Upon what principle is it that these laws of quarantine, emanating solely from the a uthority of the States, and operating directly upon the commerce of the Union, are allowed to have a constitutional validity and effect, which are denied to the act under consideration? Founded on the same reserved right the right of the State to regula te its own internal police; and devoted to the same object the personal security of the citizen. 41 By identifying the Seamen Acts as a police measure, Berrien showed that the reasoning behind Gibbons was wholly inapplicable in determining their constituti onality. It was not indispensable to decide how far a law passed by a State Legislature, in the exercise of an undisputed power to regulate its own internal police, and plainly limited to that object, must yield to the an act of Congress, enacted under t he authority to regulate commerce, in the event of an incidental conflict, which might have been avoided without restraining the full exercise of the constitutional power of the Federal Government. The question, therefore, is still open to inquiry. 42 40 House Report 80 27 Cong., 3 sess. (1843): 52 53. 41 57. 42 53.

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111 So, f or Berrien, the primary question, the question that was specifically avoided by the Court in Gibbons was still to be answered. And to find that answer, Berrien looked to an unlikely place for guidance. For Berrien, the commercial power of the federal g overnment was constitutionally restricted from enacting measures that would conflict with properly enacted State police laws, If the power to regulate their own internal police be, as I think it is, clearly reserved to the respective States, laws passed by the General Government, in the exercise of the right to regulate commerce, cannot control the exercise of this reserved power of the States, except in so far as those laws may be both necessary and proper to the preservation of the commerce of the Union. The consequence is, as I apprehend, that the police laws of the several States must continue to operate within their respective limits, if they can so operate without prejudice to the efficient exercise of the commercial power; that the power of Congress itself, over the subject, is liable to this restriction; and that, subject to this limitation, the general terms of the a law or commercial regulation of the Federal Legislature must be so construed as to allow their operation. 43 Because the forceful admittance of free black sailors was commerce of the country, then Congress was obligated not to pass laws guaranteeing the entrance of such persons in contravention o f State police laws And the silence of Congress Thus Berrien intertwined the Seamen Acts and Gibbons to upend the McCulloch reading of interacted with the sovereign powers of state governments. Unlike McCulloch where Marshall e and John Taylor of Caroline before him, 44 saw that clause as an inhibition on federal action. In 43 53. Emphasis in original. 44 John Taylor, Construction Construed and Constitutions Vindicated McCulloch v. Maryland (Palo Alto, Ca., 1969).

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112 enacting laws, Congress could not contravene properly passed state laws unless the federal law was absolutely necessary for the preservation of the enumerate d power. And even then, there had to be an obvious conflict between the State law and Federal law as there was, supposedly, in Gibbons before the State law could be struck down. In identifying police powers and locating them under the protection of the Tenth Amendment, Berrien foreshadowed the judicial recognition of police powers in New York v. Miln 45 adopted by the Jacksonians for the next two decades, slammed closed any attempt to dismantle the Seamen Acts based on the Commerce Clause in the Constitution. The arrest of Daniel Fraser, a black British sailor, precipitated the first official pronouncement of state police powers by a member of the Jackson Cabinet. But at the very moment when Berrien remove d the Commerce Clause from the list of potential weapons against the Seamen Acts, the question of citizenship resurfaced with a vengeance. Though the issue of African American citizenship remained on the periphery, the question of Afro British subjecthood was being broached daily by a host of imperial and Parliamentary officers. When reforms swept through the British Empire in the early 1830s, they carried with them a new threat to the Seamen Laws. British Toleration Laws undermined one of the soundest t heoretical justifications for racial quarantines. No longer could South Carolinians point to the legal handicaps of a West Indian sailor in his home islands as proof of his lack of subjecthood. Britain, in its sovereign capacity, had bestowed full subjec thood rights on many of protection of the Union Jack But within the same group of liberal ref orms came the legal abolition of British slave ry. With Emancipation, t 45 36 102 (1837).

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113 South Carolina would be even more certain of the necessity of racial quarantining Put another way, by extending full subjecthood rights to c British government proved the efficacy of the Seamen Act while simultaneously forc ing the defenders to invent a new theory of subjecthood to deny the claims of Afro Brit ons

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114 C HAPTE R 5 THE EXPANDING SEAMEN ACTS: DAVID WALKER, BRITISH POLITICS, AND THE JACKSON ADMINISTRATION Until 1829, South Carolina maintained the only Seamen Act in the United States. Though other states like Georgia and Mississ ippi defende d South Carolina s right to preclude the entry of any colored person, no other state made it part of their own racial policy. The statutory reaction dangerous Atlantic was spreadin g. When authorities in Georgia and North Carolina discovered clandestine shipments of Appeal a radical abolitionist pamphlet, both states enacted seamen restrictions of their own in 1829 and 1830, respectively. 1 Frustrated sailors and captains would find little solace in the federal government. The expansion of the Seamen Acts coincided with the ascension of the Jacksonian Democrats, and as noted in the previous chapter, part of the tendencies of their predecessors the face the previous Attorney General, William Wirt, assured Pres ident Jackson and Southern lawmakers that the Seamen Laws were bey In a bold articulation of state police power, Berrien believed the Tenth Amendment limited the Commerce Clause; the federal government could not force the admittance of dangerous or sick people into the individual states. 2 By 1830, with the expansion of the Seamen Acts and the acquiescence (or even outright approval) of the Jacksonians in Washington, the British government read the handwriting on the wall and withdrew their formal complaints against th e racial quarantines. By conceding in 1830, British metropolitan authorities implied that black 1 168 171; 1 29 31. 2 House Report 80 27 Cong., 3 sess. (1843): 49 58.

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115 Britons were not subjects and acknowledged that black skin could be as legitimate a public nuisance as cholera or yellow fever. How quickly things changed in two years. British colonial politics in the early 1830s which granted some people of color in the Empire the full panoply of subject rights, contradicted the im plications of diplomatic retreat. The British Colonial Office commenced a series of liberal reforms that marginalized race in defining subjecthood in the Empire only a year after the Board of Trade admitted that the United States had no obligation to reco gnize the rights of black sailors. To make matters more complex, the British government also streamlined trade between the United States and the British West Indies, inching ever closer to free trade. One unforeseen consequence of these reopened trade ro utes was a marked increase in the number of British Caribbean vessels entering U.S. port cities. Subsequently, the British Foreign Office again fielded a score of complaints from Consuls acting on behalf of an ever increasing number of incarcerated marine rs. The British metropolitan authorities had to reconcile their seemingly contradictory policies. In other words, how much teeth did the Toleration Laws have in Anglo American diplomacy? Would the Foreign Office follow the lead of the Colonial Office an d liberalize their definition of subject and demand recognition by the United States? And if the British Government altered their position vis vis the Seamen Acts and began demanding the recognition of its black subjects, would the United States be resp onsive? subjects, they put the Jackson Administration into a bit of a bind. The domestic political scene in The recently penned opinion from John Berrien the one that celebrated state police power as a potent and effective

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116 countermeasure to overbearing federal encroachments seemed far less attractive to the Democrats in Washington in 1832 than in 1830. Un der the leadership of fallen Vice President, John C. Calhoun, the South Carolina government debated Nullification of the federal tariff. And state sovereig resignation States, and fear of his connection to Calhoun motivated Jackson and his new Cabinet to review his opinion on the Seamen Acts. This task fell on the new Attorney General, Roger B. Taney, and his opinion on the rights of black sailors articulated a new notion in the evolution of citizenship in modern republics and foreshadowed the most ne farious Supreme Court decision in the U.S. history. This chapter follows the course of the Seamen Acts controversy from its expansion into inspired among white Georgians and North Carolinians the same perceptions of the dangerous Atlantic that proliferated in the aftermath of the Vesey Conspiracy in South Carolina. It will then show how the British government, in the context of the Emancipation Bill and Toleration Laws, pursued an aggressive attack on the Seamen Acts in the name of its black just as South Carolina threatened Nullification and with Great Britain clamoring for Afro British subjecthood. As we have seen, the fear of slave insurrection proved to be the most direct cause for the first set of laws that restricted the movement of free black sailors. The Vesey revolt convinced many white Charles

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117 of liberty, an affliction that could very easily spread to South Carolina plantations with disastrous effects. To prevent such an epidemic, the South Carolina legislature enacted a law that constitutional debates. Considering the protection of quarantine seemingly created by the Gibbons decision, it should not be surprising that when Georg ia and North Carolina passed their Seamen Acts in 1829 and 1830, respectively, they framed them explicitly in quarantine terms. 3 In these two states, the laws arose as responses to fears of slave insurrection, much like their South Carolina predecessor. The primary catalyst for these laws was not news of an overt conspiracy, however, but rather the discovery of a shipment of an incendiary, abolitionist pamphlet in the ports of Savannah and Wilmington. The pamphlet, commonly referred to as created earlier. The content as well as the distribution of the pamphlet instigated a violent backlash against free blacks generally and against black sail ors in particular. The author of the Appeal David Walker, was a free black born in North Carolina in the 1780s. After traveling throughout the country, Walker settled in Boston, where he began a clothing business in the mid 1820s. In 1827, he became an agent for the first African American newspaper, Walker occasionally addressed congregations in Boston, usually focusing on the need for black unity in the fight against slavery. In 1829, Walker put into print 3 The correlation between limiting the ingress of free black sailors and preventing the circulation of is obvious. Both sets of laws sought to limit the introduction and circulation of dangerous ideas. One set to limit the movement of bodies and thereby the speech emanating from those bodies but only as a means to prevent incendiary ideas. The other attempted to limit publications, or the press, but again, only to contain hazardous ideas. In a sense, the laws against and later restrictions against antisla very publications using the federal postal service, and the seamen laws were early forms of censorship. In this way, community standards were paramount in determining what was determined dangerous or inappropriate.

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118 the ideas he had been espousing to local groups. 4 was the result; it was a scathing rebuke of slavery, the complacency of free blacks in the United States, and detestable colonization schemes. In forceful language, Walker demanded an immediate end to slavery, even if that end had to come from bloody revolution. So corrupted was the system of slavery, so degraded was the slave in the United States, that slaveowners deserved violent retribution if the peculiar institution was not obliterated immediately. Coloni zation was not a viable option for Walker; African American blood and sweat had created the wealth of the United States, and the degraded race deserved the fruits of its labor. For current purposes, the most vital aspect of concerns his p rimary you therefore to cast your eyes upon the wretchedness of y our brethren and to do your utmost to pled with free blacks unmov as all other colored people under heaven, shall never be fully consummated, but with the entire emancipation of your enslaved brethren all over the world ee can to rescue, or join with tyrants to oppress them and yourselves, until the Lord shall come upon lavery 4 William Loren Katz, Introduction to Re print (New York, 1969), the Slaves of the United States of America (New York: J.H Tobitt, 1848): i iii.

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119 stood in the way of such enlightenment 5 For white Southerners, proved beyond doubt that free blacks so ught nothing less than the immediate and complete destruction of Southern slavery. The dangerous pamphlet confirmed the assumptions that Charlestonians made in the wake of Denmark Vesey. Free blacks were more than a nuisance; they were conniving subversi ves. One no longer had to conjecture about the motives of free blacks; Walker had given voice to those motives, and they were sinister. Northern free blacks were being instructed to spread ideas of liberty and freedom to their Southern brethren, both fre e and enslaved. Of course, had Southern slaveowners looked at the pamphlet from a more detached position, they might have understood that actually proved that all free blacks were not infected Otherwise, why was Walker so irritated with their collective apathy towards slavery? Nonetheless, when shipments of were found in Southern port cities, it established in the white Southern mind the effectiveness of attempting to realize publication in Southern cities meant that his message was inspiring action. In less than two months after its initial publication, shipments of Walk were heading southward. In December, 1829, the Savannah police uncovered a clandestine shipment of the notorious pamphlet. Apparently, a white steward aboard a ship from Boston was caught transferring the cargo to a local black minister. The shipment was seized; copies of the Appeal were forwarded to the Savannah Mayor and state authorities. 6 When questioned about the 5 David Walker, in ibid, 40 42, 83. Emphasis in original. 6 There may be some disagr eement in the historiography about the identity of the person who was initially in

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120 contents of his delivery, the steward claimed naivety, and, lacking any other evidence, the Savannah authorities released him The Mayor of Savannah, William Williams, immediately wrote to the Mayor of Boston, Harrison Otis, demanding the arrest of David Walker. Otis appeared sympathetic; he sent one of his agents to speak to Walker about the distribution of his writing. The his shipments Southward would continue despite the threats of the Savannah authorities. Unable to reason with Walker, Otis turned his attention to the captains and crews on board of Southern bound ships, warning them of the consequences of importing the pamphlet. As for arresting Walker, however, Otis refused. As he informed Mayor Williams in his return letter, Walker had not broken any law of the State of Massachusetts, so he could not be legally restrained. 7 When Georgia Governor George Gilmer received a copy of the pamphlet as well as a warning form Mayor Williams, he decided to convene a special session of the state legislature and provided it with copies of the Appeal Governor Gil mer thought the Assembly should y of the ships with Negro crewm e the number of slaves entering the state from Virginia and Maryland. 8 Apparently, these individuals would be most likely to distribute the pamphlet or the incendiary rhetoric contained therein despite the fact that a white sailor was the first distributor. The legislature responded to The Journal of Negro History 86 (Summer 2001): 305 Journal of Southern History 3 (August 1936): 326. Both admit that a white steward introduced the contraband, but Eaton speaks of a slave who came into possession while Crocket identifies a free black minister. In any event, the first shipment was smuggled by a white deckhand, but the Georgia legislature and Governor Gilmer thought the best protection against further shipments would be the quarantining of black seamen. 7 For a general ove rview of the reaction of Georgians to the arrival of see Hasan Crockett, University of Georgia, 1967). 8 Quote taken from Crockett, Seamen Act is that it was a white sailor who first brought to Savannah, though no Georgians appeared cognizant of the paradox.

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121 the recommendation, plac ing a quarantine of forty days on ships carrying free blac k sailors into the state. Free blacks could remain on board their respective ships, so long as no communication with domestic slaves or free blacks occurred. If free blacks broke quarantine and came ashore, or if a person of color boarded a quarantined v essel, then the offending person of color would be arrested and whipped. Sailors found on shore would be arrested until their ship left harbor, with the captain being responsible for the costs of incarceration. If the captain refused to pay the costs, he could face criminal charges, and the poor sailor faced the whip, up to thirty nine lashes. Exceptions were made for vessels of war, steam vessels, and shipwreck. The law was also very specific about wh ich types of colored sailors fe ll into the quarantin e category; the law exempted f ree American Indians, free Moors, Lascars, or other coloured subjects of the countries beyond the Cape of Good Hope but such persons only shall be deemed and adjudged to be persons of colour, within the meaning of this Act, a s shall be descended from negroes or mulattoes, either Thus, Atlantic blacks were to be the specific focus of the quarantine. As for slaves from the Upper South, the state legislature made no restrictions. In terms of sailors of color, sojourning slaves possessed greater freedom of movement in Savannah than their free counterparts. 9 In 1823, when South Carolina first started arresting sailors, merchants and captains from Massachusetts immediately objected. However, the Georgia law faced far less criticism, at least 9 While the vast majority of t he law dealt with black seamen, the final two sections that do not deal with them have received the most attention from scholars. These sections forbade persons from teaching anyone of African descent how to read or write, with a fine or corporal punishme nt being inflicted against the perpetrator. The final part of the Acts of the Ge : 168 171. Why the legislature exempted steam vessels is unknown. In 1837, however, Nicholas Trist, the U.S. hey could better withstand the intense heat. Perhaps this explains the steamship exemption. See Chapter7 below.

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122 made the difference. Speaking of the pam redeeming quality, and we should judge from the drift that the writer, whatever may be his 10 In protecting themselves from the insidious influence of Appeal Georgians had every right to prevent its introduction into the state, even if that required the quarantine of a class of persons most likely to smuggle the contraband. The call to violence posed a direct threat to the safety and welfare of Savannah. 11 Even the most radical white abolitionist groups decried the ideas Walker espoused. Quaker writer and lecturer Benjamin Lundy, who edited The Genius of Universal Emancipation condemned the pamphlet, and William Lloyd Garrison found the distribution of the Appeal as a setback for the antislavery cause. While both authors applauded Walker for highlighting the plight of Southern slaves, they refuted his call to arms. 12 Of course, the fact that sailors were not placed in South Carolina, Georgia actually implemented a true quarantine. Both Governor Gilmer and Mayor Williams wrote letters to U.S. Senator John Forsyth about the role the fe deral government should play in the Walker ordeal. Forsyth, former Georgia governor, and future Secretary of State under Martin Van Buren, received conflicting 10 Columbian Centinel 328. Apparently, 11 Garrison, though against the violence espoused by Walker, reprinted his Appeal in April and May, and helped to nationalize the issue. See Liberator April 30, 1831; May 14, 1831; May 28, 1831. In response, the in South Carolina offer ed reward s for information leading to the arrest of anyone distributing the Liberator or See Niles Weekly Register October 29 1831 12 William Loren Katz, Introduction to reprint of the United States of America ((New York, 1969): ii.

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123 coun 13 intervention, most likely since the Massachusetts authorities were unwilling to apprehend Walker and close down his operations. 14 Governor Gilmer disagreed; he refus ed to introduce to the state legislature a resolution that would compel Forsyth to act in the federal Senate. In defending his position, Gilmer did not concede that the threat posed by was exaggerated. The uthority [besides the state] can or ought to be permitted to e xercise of any authority in relation to our slaves though its pretense may be to secure us from danger of insurrection might eventually lead to the assumption of legislative control over the interference with our 15 For Gilmer and many other Georgians, a cure from Congress would be worse than the illness created by the Appeal s strong desire to leave Congress out of the race policy business in his state may have been motivated by the ongoing saga between Georgia and the Cherokee Nation. Gilmer and the rest of the Georgia state government refused to participate in the case Che rokee Nation v. Georgia when members of the tribe objected to state interference in their tribal lands and internal operations. In the subsequent case, Worcester v. Georgia Gilmer and other Georgia officials refused to abide by the dictates of the Unite d States Supreme Court regarding the power 13 See Williams to Gilmer, March 5, 1830, Governor Letters Book Georgia State Archives, Atlanta, Georgia; 14 Apparently, when one group of Georgians heard that Boston officials were not going to arrest Walker, they 15 Gilmer to F 3.

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124 of Georgia law in Cherokee territory. 16 For Gilmer and his compatriots, racial policy was beyond the purview of the federal government and any intrusion by federal officials had no bearing on state officers. If t he ideological link between the Cherokee drama and the new race quarantine were not enough, Samuel Worcester, the missionary to the Cherokees whose arrest initiated the Supreme Court case, was found to have copies of when he was arrested. Evicting the Cherokees and quarantining free blacks were two facets of one overarching racial policy, and the Georgia state government was to be the sole architect of that policy. 17 The British Government eventually conceded the right if not the efficacy of Georgia to protect itself from the ideas in though many underlings in consular positions Seamen Act following its enactment, doubting the law t quarantine. Upon reading the letter from Savannah, British officials in Washington also believed that the Georgia law was in direct violation of commercial treaties between Britain and the United States, thus mimicking the position initially staked out in 1823. 18 Seeking affirmation of its position the same position taken during the foray over the first Seamen Act in South Carolina almost a decade earlier the Foreign Office sought the legal opinion of the Board of Trade. 19 In his response to the first objection regarding quarantine, the Solicitor for the Board 16 Cherokee Nation v. Georgia 30 U.S. 1 (1831); Worcester v. Georgia 31 U.S. 515 (1832). 17 Cherokee Nation v. Georgia 30 U.S. 1 (1831); Worcester v. Georgia gerous For a recent analysis of the two Cherokee cases, see Gerald Magliocca, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (Lawrence, Kan., 2007): chapter 3. 18 See Molyneux to Backhouse, January 13, 183 0, Correspondence 17 19. 19 Lord Dunglas to Clerk of Council in Waiting, February 20, 1830, Correspondence 20.

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125 such be the internal condition of Georgia that the security of the Government requires, or is supposed by the Legislature to require, such a restriction as the present, it cannot be regarded as indicating a hostile mind Seamen Ac t being an encroachment on existing treaties, the Solicitor indicated that the 1815 to all Atlantic free blacks, and not those specifically from Great Britain, then the treaty was impotent to attack 20 Unlike its fellow Tory predecessor, the Wellington Ministry (1827 1830) appeared content to let the law remain in for ce. posturing, to end its enforcement. Legal redress would not be forthcoming, and Britain had conceded that the Seamen Laws, though detestable, were not in contravention o f international federal court ruling, motivated copycat legislation in other states and succeeded in convincing the British government that its own black subjects were not protected by a treaty that specifically protected all British subjects. Unless something changed in the commercial treaties between the 20 See Stephen to Lack, 16 March 1830, Correspondence relative to the Prohibition against the Admission of Free Persons of Colour into certain Po rts of the United States, 1823 1851 Series 5, Volume 579, Foreign Office Papers, Public Records Office, London (hereafter referred to as Correspondence );20 22. The position of the Board of Trade in 1830 resembles closely some of the initial arguments put forth by B.F. Hunt in the Elkison case. See The Argument of Benj. Faneuil Hunt, in the case of the arrest of the Person claiming to be a British Seaman, under the 3d section of the State Act of Dec. 1822, in relation to Negroes, &c before the Hon. Judge Johnson, Circuit Judge of the United States, for 6 th Circuit (1823), in Paul Finkelman, ed., Slavery, Race, and the American Legal System, 1700 1872 Series VI, Volume 2 (New York, 1988): 2 3.

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126 nations, or until the federal government intervened decisively, free black British sailors were at th e mercy of Southern law enforcement officials, according to the Board of Trade in 1830. However, this official position of the British government did not prevent some British consuls in the United States from actively lobbying state and local authorities Eager to remain in the good graces of the British merchants and traders under their care, some energetic consuls chose to intervene nonetheless. One such consul was Charles Peshall, the British agent in Wilmington, North Carolina. Perhaps in defiance, perhaps in ignorance, Peshall pursued diplomatic avenues and sought judicial relief for his countrymen laboring under the North Carolina law, both of which contravened the express wishes of the Board of Trade. Unlike its predecessors in South Carolina a nd Georgia, and its successors in Alabama, Mississippi, Florida, and Louisiana, the North Carolina Seamen Act met a quick death. In less than one year, the state judiciary ruled the law unconstitutional, and the General Assembly subsequently rescinded the law. Federal pressure was almost nonexistent; in fact, John Berrien diplomatic efforts tended to irritate local officials rather than convince them of altering their c ourse of action. Why, then, did North Carolina buck the trend? 21 21 One historian claims that the large number of free blacks in North Carolina obviated the need for laws against free black sailors. As this argument goes, state officials in the Upper South, North Carolina included, were no more fearful of free blacks from other jurisdictions as they were of free blacks already inha biting the state. See Ira Berlin, Slaves without Masters: The Free Negro in the Antebellum South (New York, 1974): 215 6. Berlin bases his explanation on the analysis of John Hope Franklin, The Free Negro in North Carolina, 1790 1860 (Chapel Hill, N.C., 1943). While this sentiment may be true in a general sense, it ignores specific pieces of evidence. First, if this sentiment was true, why did the state ever pass a Seamen A ct in the first place? Second, the state court t hat ruled against the racial qua rantine did not in any way discourage the legislature from barring the ingress of free black sailors. Rather, the logic of the decision seemed to criticize the state quarantine law for not doing enough. Third, this explanation ignores the fact that altho ugh no state laws against b lack sailors were passed in North Carolina following the 1831 rescission, municipal codes were enacted in Wilmington that bas ically reinstituted the Seamen L aw and forced black sailors entering the port back into jail. For the r eemergence of racial quarantining in Wilmington, see Correspondence 93 98.

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127 Ironically, the unique story of the North Carolina Seamen Act begins in the same way as its predecessors in South Carolina and Georgia. In fact, the exact same catalyst instigating the Geo rgia law resulted in the one put in force in North Carolina in 1830. In the months following the discovery of in Savannah officials uncovered various copies of the detestable publication in N o r t h C ar o l i n a, i n Fayetteville, Wilming ton and New Ber n Reports Appeal and the very real threat of slave conspiracies. When rumors of rebellion surfaced in Wilmington in the fall of 1830, Owen responded by sending a m essage to the state legislature with a copy of the Appeal attached. 22 Owen had been convinced that free blacks were being recruited by rabble rousing abolitionists and sent into the state to distribute incendiary literature and incite rebellion. In a sec the impact of In response, it outlawed the circulation of seditious pamphlets and criminalized the teaching of slaves and free blacks to read or write. 23 As it discussed these reactionary measures, the legislature also adopted a revised quarantine statute 24 This law mandated ships entering the state from any other state or nation to ride quarantine for thirty days if they employed any free person of color, A merican Indians exempted. No domestic person of color, free or enslaved, was permitted to contact the sailors riding quarantine. Any infraction of quarantine, either by the sailors coming ashore or domestic blacks going aboard, would result in imprisonme nt, and under certain conditions, corporal punishment. Captains of such vessels were 22 On the threat of rebellion in Wilmington, see Trumpet and Universalist Magazine September 4, 1830, 39. 23 332. 24 See Journals of the Senate and H ouse of Commons of the General Assembly of the State of North Carolina (Raleigh, N.C., 1831): 94.

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128 obliged to pay detention fees and guarantee exodus for their sailors who broke quarantine and were committed to jail. Once again, the statute made no mention of seafarin g slaves. 25 When the British schooner Bahamian was about to enter Wilmington, the Collector of the Port informed the captain of the new quarantine since he employed two free persons of color. The captain, however, on the advice of Consul Peshall, brought his ship into port, breaking quarantine. Peshall had taken the two men ashore, in direct violation of the law, and considered them to be under his personal protection. 26 admitted to be unconstitutional by the well and he was hoping to pr incarceration, worried that their arrests might still be upheld by local courts. Authorities arrested in court, Peshall filed suit for the costs of incarceration. Peshall immediately contacted his supervisors in Washington, imploring them to push the federal government into action and to remunerate him for the costs of the impending lawsuit. Peshall was apparently prepared to take the case to the U.S. Supreme Court. 27 What Peshall must not have known was that the Board of Trade had recently instructed the Foreign Office to desist in bringing the Seamen Acts before the courts, convinced that judicial reli ef was impossible. So, when Peshall requested reimbursement, 25 Acts passed by the General Assembly of the State of North Carolina, 1830 31 (Raleigh, 1831): 28 32. New Orleans officials also discovered a shipment of the Appeal in early 1830, and the state legislature responded by preventing the introduction of all new free persons of color, sailors excepted and evicting all free persons of color who entered the state after 1825. See African Repository and Colonial Jour nal 6 (March, 1830): 29; Statutes of 90 94. 26 See James Owen to Thomas Devereux, December 7, 1831 in Miscellaneous Letters of the Department of State, 1789 1906 Records of the Department of State (RG 59, M179), National Archives, College Park, Md.. 27 C.J. Peshall to Consul General St. John Baker, October, 11, 1831 in Correspondence 31 2; C.J. Peshall to Charles Bankhead, 31 October 1831 in Correspondence 31.

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129 the Consul received a tongue lashing for his direct violation of North Carolina law. 28 Per the new policy, the Consul Edward Livingston in hopes of securing the same kind of pledge that Secretary Adams had given seven years earlier. Livingston was not nearly as cooperative; apathetically, he simply stated that he would look into the matter. 29 State Department, the Consul London for further instructions. After all, the Whigs had recently swept the 1830 elections, the new Prime Minister, Earl Grey, and the new Foreign Secretary, Lord Palmerston, were both reform minded. In the midst of preparing a letter to inform the new Ministry of the uncooperative position taken by the Jackso n Administration, officials in the Consul office received some interesting news from Consul Peshall in Wilmington. The British captain had won his case, and, moreover, the quarantine law was overturned by the North Carolina Superior Court! The decision was handed down the day after Peshall received word from Washington that the litigation he commenced on behalf of the incarcerated sailors from the Bahamian would not be refunded by the Consul General. As soon as the Board of Trade abandoned liti gation as a vehicle for relief, a British sailor won his suit. Peshall certainly felt vindicated, but he was aware, as were his superiors in Washington, that the decision was only a pyrrhic victory. The ruling was hardly a reason for celebration for Brit ish officials. The jury trial of the Bahamian captain came before Judge Robert Strange, a Jacksonian Democrat who would later serve his state in the U.S. Senate. After the jury heard the testimony 28 John McTavish to C.J. Peshall, November 4, 1831 in Correspondence 35; Hamer, States, and the Negro Seamen Acts, 1822 The Journal of Southern History 1 (February1935): 17 18. 29 Livingston to Bankhead, November 8, 1831, in Correspondence 33.

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130 and evidence, they received their instructions from Strang e. The judge began his charge to the jury by reiterating propositions laid down by John Marshall in the famous Gibbons v. Ogden 30 case. Strange, like Marshall, suggested that Congress maintained exclusive authority over interstate and international comme rce. Also like Marshall, Strange explained that quarantine was a police power a power of self preservation and not a commercial power. As such, quarantine was reserved to the states under the Tenth Amendment and not relinquished to the federal govern ment. Despite the fact that quarantine inhibited commerce, it did so incidentally. Quarantine regulations, like inspection laws, emanated from the power of the state to protect its citizens, not from any ability to regulate commerce. As for determining the object of quarantine, ates were to decide precisely what posed a danger to its citizens. 31 the constitutional power to restrict the entry of free black sailors if the state legislature dete over the power of the legislature, but about the particular exer cise of that power. The legislature determined that free blacks were infected with a hazardous ideology. So, asked Strange, why does the law allow free black sailors infected with a moral contagion to enter the state after riding quarantine for thirty da ys? One month of quarantine was not going to cure the ailment. 30 22 U.S. 1 (1824). 31 This quote of Judge Strange taken John McTavish to Viscount Palmerston, November 23, 1831 in Correspondence 36.

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131 Therefore, Strange surmised that the result of the law was contrary to its stated aims. Free black mandatory thirty days. The quarantine law only delayed the introduction of infected sailors; it did not prevent it wholesale. As such, the North Carolina legislature would have earned harsher Seamen Act. 32 Had the quara ntine law prevented all free blacks sailors from entering the state altogether, rather than for a specified period of time, then the law would have remained intact. In other words, had North Carolina framed its law like the one in force in South Carolina i nstead of the one in Georgia, the North Carolina Superior Court would have upheld its operation. Congress, and quarantine regulations, reserved to the states, was ident ical to the rather ambiguous position taken by Marshall in the famous Gibbons v. Ogden case. 33 An obvious question remained: what law was t o yield when a constitutionally enacted commercial law passed by Congress conflicted with state regulatory power, lik e quarantine for instance, a power historically exercised by the individual states and protected by the Tenth Amendment? Marshall hinted strongly that the state law would yield. Yet, he refrained from ever definitively answering the question, preferring 34 In fact, Marshall skirted the issue by clearly stating that the New 32 Elkison decision, when he would have been handcuffed had South Carolina enact ed a law that more closely resembled quarantine. Strange came to an opposite conclusion, that quarantine was unacceptable. The only middle ground between Strange and Johnson on this point would be a law that mandated an absolute quarantine on all black s ailors. 33 issued an opinion about the constitutionality of the Seamen Acts. He cited extensively from Gibbons and believed that case to be a solid defense for the seamen acts. See John Berrien, Opinion of the Attorney General, March 25, 1831 in House Report 80 27 Cong., 3 sess. (1843): 52 53. 34 See John Marshall to Joseph Story, September 26, 1823 in Charles Hobson, ed., The Papers of John Marshall, Volume 9 (Chapel Hill, N.C., 1998): 338.

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132 York law in Gibbons was not a law emanating from the police power of the state, like health and quarantine regulations. In ruling on the North Carolina Seamen Act, contrarily, Strange answered the question that Marshall avoided, but not in the way the Great Chief Justice would without for a moment 35 So while striking down the law with his right hand, Strange, with his left hand, upheld the power of the state assembly to enact anot her Seamen Act. There is no direct evidence to suggest that Judge Strange issued his opinion to prevent an appeal to the U.S. Supreme Court via a writ of error. However, had the jury upheld the conviction and the fines, the captain and seamen could have a ppealed to the High Court, where John Marshall, Joseph Story, and William Johnson would have heard the case. If Strange truly honored the brand of federalism he espoused in his charge to the jury, Strange would much rather see a state court invalidate the North Carolina Seamen Act on strict grounds rather than see a federal court rule broadly against the power of the states to even enact such measures. Of course, we shall never know how the Marshall Court in its waning years would have responded to such a n appeal. If Strange shared the estimation of Roger B. Taney, then he would have assumed that the 1831 Supreme Court would have ruled against the Seamen Acts if a case came before it. 36 Thus, Strange would have had a compelling interest to see the jury re turn a verdict of not guilty so as to preempt an appeal to the Marshall Court. 35 Correspondence 36. 36 eds., Mr. Justice (Chicago, 1956): 35 62 Tan ey was probably correct. Besides Johnson, Marshall, and Story, the 1831 US Supreme Court also contained Gabriel Duval ( a Madison appointee), Smith Thompson ( a Monroe appointee), John McLean, and Henry Baldwin ( both Jackson appointees ) From various sourc es, we can reasonably conclude that Marshall ( Gibbons dicta), Story ( Miln dissent), and Johnson ( Gibbons concurrence) would have ruled against the North Carolina seamen act. If Duval acted as usual, he would have sided with Marshall, as the two disagreed three years on the bench. So even if Baldwin, Thompson,

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133 interference, and despite the outcome of the case, Wilmington officials continued to impose quarantine on vessels employing free blacks. At least some merchants in Wilmington were aggravated about the restriction in trade. Consul Peshall was peeved. He had unintentionally transgressed Foreign Office policy and received a bitter rebuke f rom his superior in Washington, only to be vindicated in state court. Now, after his victory, municipal authorities steadfastly executed the law despite the recent decision. On Christmas Eve, 1831, Peshall again hailed British ministers in Washington, th is time about the persistent efforts of city officials in executing a law struck down by the state judiciary. 37 In that letter, Peshall described how town officers prevented a British ship from Antigua from reaching the custom house because it failed to pe rform the thirty day quarantine. The consul could not understand how a law determined could be maintained. Opportunities abounded with the reopening of the West Indies. For Caribbean. Since British ships had no choice but to employ persons of color, a quarantine law report, several British vessels skipped past Wilmington and unloaded their cargoes in New York upon hearing that the North Car olina quarantine was still in force. If his superiors in Washington could (or would) not assist him in protecting the interests of British subjects, Peshall warned, then he would be forced to go over their heads and consult directly with London about the and McLean all dissented and who knows where McLean may have come down in 1831 the majority would still have overturned the Seamen Acts. Had the cour t ruled in this favor, it would have been the most hotly contested 37

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134 atrocities perpetrated in Wilmington. Peshall seemed confident that the new Whig Ministry would alter the obsequious posture of the recently departed Tories. 38 After all, the new Ministry was already pressing for sweeping reforms in Britain and the Empire and these new policies would alter the diplomatic calculus of Seamen Act diplomacy. If Consul Peshall decided to press the issue, he would do so in a radically different political universe, though he would never get the chance, as the state legislature abided by the Superior Court decision and rescinded the race quarantine at its next session. 39 Up until this point, the Seamen Acts were preventative measures meant to preclude slave insurrection by limiting the interaction of poisonous ideas of rebellion from reaching the ears o f otherwise doting slaves. I n 1831, as Peshall initiated his attack on the North Carolina race quarantine, only three states had enacted laws to stymie this interaction b u t t he perception of danger was about to multiply expo nentially T he world of antebellum Virginia was turned on its head by Nat Turner and seventy other slaves who pr slave rebellion in the history of the United States The rebels killed over fifty white people on a rampag e across the Virginia countryside, wreaking havoc throughout Southampton County. In an effort to explain the re bellion and thereby avert recurring insurrections, the Governor of Virginia sent a widely circulated letter a copy of which was addressed to Ja mes Hamilton, the Governor of South Carolina. 40 In his letter, the Virginia Governor explained that the cause of the 38 Peshall to Baker, December 24, 1831in Correspondence 37 38. One aspirant for Congress claimed the opening of the West Indies to be the crowning achievement of the Jackson Administration and believed that the state must focus on fostering this potential source of revenue. "Without it, our trade languishes; with it, we must prosper The North Carolina Journal (Fayetteville), July 6, 1831. 39 1832 (Raleigh, N.C., 1832): 14 15. 40 Hamilton was no racial conservative. He was the Mayor o f Charleston during the Vesey Conspiracy, and he spearheaded an effort to tighten restrictions against slaves and free blacks in the aftermath of the botched rebellion. Hamilton had his detractors, who accused him exaggerating the threat so as to enhance his own prestige in preventing the revolt and bringing the perpetrators to justice. See Chapter 2 above.

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135 deas of equality and freedom amongst domestic slaves. Black churches eagerly abetted, distributing antislavery literature and preaching the sins d turned otherwise passive slaves into murdering monsters. 41 Southerner s now had direct evidence that publications like The Liberator and were having a tangible, pernicious influence on Southern slaves. Debates over the morality of slavery and the future of the institution were inspiring bloodshed. The lesso n from Southampton was clear and simple; i domestic slaves must be stopped at all costs. To anxious white Southerners, the links between antislavery evangelicals and slave insurrection were reinforced by n ews of the Christmas Revolt in Jamaica. 42 On December 27, 1831, the slaves around Montego Bay began a widespread rebellion that took the better part o f a month to quash. Despite the loss of only fourteen whites (less than a fourth of the total exacted by the Turner rebels), the destruction of property was extensive and the psychological damage beyond enumeration. Planters immediately pointed to the same culprits that the Virginia Governor identified. White missionaries in Jamaica faced accusations of fo menting rebellion, the increasing visibility of missionary activity and slave churches as the primary catalysts of rebellion. Abolitionist newspapers and antisl avery tracts had been entering the island and disseminated by erstwhile Baptists and members of black church congregations. The illiteracy of most slaves only exacerbated the problem, as literate slaves and free blacks read out loud and 41 Quotes from Governor Floyd to Governor Hamilton taken from William Freehling, Prelude to Civil War 64. 42 Rugemer, The Problem of Emancipation 114 116.

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136 explained the idea s to large congregations of slaves Supposedly, these informal meetings this quasi public sphere, eady made battalion if violence broke out. 43 Another issue distressed the West Indian elite. In les s than a year before the Christmas uprising the Jamaican colonial assembly granted equal rights to some free blacks of the island Free were now on a le vel legal playing field wit 1831, men of color were elected to the Jamaican Assembly. 44 The recent elections and t he R ebellion convinced planters that their world was unraveling. Worse yet, planters appeared certain that slaves were misconstruing the new legislation. Slaves, the planters contended, maintained a foolhardy belief t hat equal rights for free coloreds meant that a similar extension would soon be offered to the enslaved of the island. Some even suggested that slaves misunderstood the law and thought tha t emancipation had been declared Obviously, the colonial assembly did no such thing and had no such intention though the Grey Ministry was already contemplating a world without colonial slavery When sla ves attempted to strike, either of emancipation whites reacted viciously. The ensuing counter reaction by the s laves marked the beginning of the rebellion, and within days, it was in full swing. 45 In the aftermath of the revolt, retribution was swift and severe. Hundreds of 43 See two footnotes down. 44 House of Commons Papers pass House of Commons Papers Volume XXXI, Paper 363 (1832): 287. 45 Past and Present 40:3 (1968): 108 Jamaican Historical Review

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137 slaves faced the gallows, and Baptist missionaries left the island in fear for their lives. Reactionary white Jamaicans tarred and feathered one minister and threatened several others with lynching. A few missionaries received indictments for inciting rebellion, but were eventually acquitted. Despite exoneration, missionaries continued to fee l unwelcomed, as white Jamaicans nonetheless harbored deep distrust of them and their message. Baptist missionaries who returned to Great Britain told of their unceremonious dismissal from the island. 46 Proposals for preventing another rebellion were re markably similar in the aftermath of the Nat Turner and Christmas Revolts. Some called for harsh restrictions against slaves, free blacks, abolitionists, and incendiary publications. Others considered emancipation as the most foolproof remedy for the ail ment of slave insurrection. It is well known that the Virginia legislature contemplated the efficacy of emancipation, and the same Virginia Governor who blamed abolitionists for Nat Turner believed that ending slavery was the only way to truly prevent ano ther mass slaughter. 47 Similarly, the British Parliament and the Colonial Office began serious consider ation of an emancipation bill in the direct aftermath of the winter revolt in Jamaica. 48 Of course, Virginia refused to adopt any type of emancipation me asures, as powerful slaveowners maintained significant positions of power in the state government and public opinion was hardly pressing lawmakers to eradicate slavery. This scenario was hardly the same in Britain where abolitionists were executing one of the most impressive public initiative projects in British history, and a responsive Whig Administration appeared willing to cater to the growing influence 19 (1996): 1 Journal of Ecclesiastical Histor y 27:1 (1976): 57 72. 46 Rugemer, The Problem of Emancipation 111 114 47 The Southampton Slave Revolt of 1831: A Compilation of Source Material (University of Massachusetts Press, 1971). 48 William Green, British Slave Emancipation: The Sugar Colonies and t he Great Experiment (Oxford, 1976): 111 115.

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138 of abolition societies. In the United States, accounts of the Christmas Revolt varied greatly. Northern papers focused on the extent of the uprising, enumerating casualties and estimating the loss of property. Anecdotes from travelers and reports from the island littered Northern papers for the first half of 1832. Southern papers, contrarily, rar ely gave any press coverage. The Charleston Mercury called the rebellion a local disturbance, and focused on the restoration of law and order. Other Southern papers gave short shrift to the rebellion or similarly focused on the quick suppression of the u prising. The reason for such silence was the fear of a copycat insurrection. If Southern slaves learned of the tens of thousands of Jamaican slaves who risked life and limb for freedom, then they might decide to make the same kind of sacrifice. 49 Whereas the British public was outraged at the oppressive tactics of the planters, most people in the United States, and especially in the South, were more concerned with the breakdown of law and order that allowed the insurrection in the first place Interesting ly, two Southern papers did expound on the extent of the havoc wreaked by the Jamaican rebels after assuring readers that colonial officials had effectively subdued the insurgents. Both the Pensacola Gazette and the Tallahassee Floridian ran the same arti cle, which detailed the enormity of the insurrection and estimated 36,000 slaves to be involved in the destruction of nearly two hundred plantations. 50 These articles appeared just as the Florida migration of free negroes and 49 Rugemer, The Problem with Emancipation 114 116. 50 Tallahassee Floridian 21 February 1832.

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139 enactment, no free black or mul atto could legally enter the state, seamen included. All offenders would be arrested and placed in jail until they could be sent out of the state. Captains were responsible for paying a bond to cover the expenses of any offender they brought into the sta te. payment. Furthermore, if any offender recommitted the same crime of entering the state, that offender would be sold into slavery for five years, with procee ds going to the coffers of the 51 The slave rebellions of 1831 had convinced territorial proximity surely was a mot ivating factor. Much like in Florida, the rest of the South responded to the slave revolts by contemplating the efficiency of their racial policy over the course of 1832. In South Carolina, however, the protection of slavery was cloaked beneath the raging debate over Nullification, as William Freehling so colorfully illustrated. 52 No detailed examination of Nullification is required here, but, unsurprisingly, the reaction of British metropolitan authorities in the wake of the Christmas Rebellion illustrate d the potential catastrophe of distant policymakers interfering in local racial policies. Parliament was falling under the sway of abolitionist agitators, and the colonial planter class was losing the war in the metropole. The South Carolina Exposition a nd Protest penned The Crisis suddenly appeared to be the most efficacious protection of slavery for many South Carolina planters, especially now that Britain began seri ous contemplation of emancipation. In much the same way that colonial planters feared the machinations of distant officials in the 51 143 145. 52 William Freehling, Prelude to Civil War: The Nullification Controversy in South Carolina, 1816 1836 (New York, 1965).

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140 precursor to federal interference in Southern slavery. British metropolitan imposition in colonial state of 53 54 Undoubtedly, the summer, 1832 Parliamentary debates over colonial slavery infused Nullifiers with a new sense of urgency. Unsurprisingly, leading Nullifie rs stood in stout defense of the right of South Carolina to protect its borders and restrict the ingress of black sailors regardless of federal interlopers The South Carolina Association had proven the effectiveness of outright defiance in the wake of t he 1823 Elkison decision, and many of the strongest defenders of the Seamen Law turned out to be rabid Nullifiers. Robert Hayne so profusely defended the constitutionality of the Seamen Acts that John Quincy Adams noted it in his memoirs. James Hamilton, the political orchestrator of Seamen Statute. Robert Turnbull, another venerated Nullifier, was an active member of the South Carolina Association and rabid anti abolitionist. Isaac E. Holmes was one of the attorneys who defended the Charleston Sheriff in Elkison and he co Caroliniensis articles 55 Even more than its ideological correla tion with Nullification, the continued enforcement of the Seamen A cts after Elkison v. Deliesseline proved the effectiveness of outright resistance to federal authority. In fact, for many 53 State Papers on Nullificati on (Boston, 1834): 17, 21. 54 Rugemer, The Problem of Emancipation 114. 55 [Robert Turnbull], The Crisis (Charleston, S.C., 1827). For Hamilton and H olmes, see Chapters 2 3 above.

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141 in the Nullification camp, Elkison not only provided a powerful exa mple to emulate, but it also 56 The opponents to the Nullifiers in South Carolina, the Unionists, varied in their approach to the Seamen Act, though most of them conceded tha constitutional prerogative. Hugh S. Legar for example, routinely sponsored memorial s from citizens protesting the Seamen A ct when he served in the State Assembly Between 1824 and 1830, Legar argued in the Assembly on behalf of bitter Charleston merchants who believed the legislation was abetting the destruction of were choosing to avoid Charleston alt ogether rather than submit its crews to prison. For Charleston br okers, many of whom formed the bedrock of the Unionist Part y in 1832, the benefits of the Seamen A ct w ere inconsequential compared to the loss of revenue that the law precipitated, especially after the reopening of the West Indian trade in 1830. 57 However, when Legar was the State Attorney General, he wanted no part of any municipal policy by which the state law could be circumvented. In a letter to the Charleston Sheriff, he explained that he was pite his personal views on the matter. 58 Benjamin F. Hunt, another Charleston Unionist, thought the Seamen Act bad policy, 56 Two historians in particular have highlighted this utilization of the seamen acts by Nullifiers. Both of them appear to agree with the Nullifiers that the survival of the seamen acts post Elkison was a prototype to the N ullification Doctrine. See William Freehling, Prelude to Civil War: The Nullification Controversy in South Carolina, 1816 1836 (New York, 1965); Alan Controversy in South Carolina, 1822 Diss. University of Iowa, 1976). Of course, the theoretical makes abundantly clear. It was one thing to butt against the dicta of a federal court judge on an issue lacking a consensus concerning constitutionality. It was another to defy a sitting Congress and President in the exercise of a power that did enjoy a constitutional consensus, especially if that President was Andrew Jackson. 57 See 233. 58 See Legar to Steedman, no date, Correspondence 26. Perhaps Legar refused to assist in the circumvention of the law because of the potential political fallout even though his own constituents were largely opposed to the law in

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142 but tenaciously defended its constitutionality. For Hunt, like Legar, the proper forum within which to debate the Seamen Act was the state legislature, far removed from federal and judicial interference. While some South Carolinians still denied its constitutionality, the primary division over the Seamen Acts during the 1832 Nullification debates was not over constitutionality. constitutional validity. 59 In the summer of 1832, Andrew Ja ckson and his coalition had to walk a political tightrope. the Cherokee question in Georgia. Though apocryphal, his challenge to Marshall to enforce the Wo rcester place for Native Americans in the mighty White Republic was in the largely uninhabited western territories. But the fact that Georgia was flying in the face of the federal government mandated compact theory of the Union. Jac Marshall Court were being manipulated by Nullifiers to justify resistance to the tariff. But ideological al liance with the Nullifiers. If Jackson could not find a consistency in his aversion to s corruption of the 1830. However, it seems even more likely that Legar subscribed to view similar to Taney, believing the halls of the legislature to the proper place to debate the efficacy of laws. As an agent of the governor, his duty was to see th at the laws were faithfully executed. 59 William Johnson, for example, maintained his Elkison position in 1832. See Morgan, Justice William Johnson, The First Dissenter: The Career and Constitutional Philosophy of a Jeffersonian Judge ( Columbia, S C ., 19 71): chapter 14.

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143 Constitution in his denial to execute a Supreme Court mandate, and Calhoun supporters could moment, the Seamen Acts reemerged on the n tightrope. It was the renewed aggressiveness of British diplomats that exacerbated this already tense political and constitutional moment, forcing the Jackson Administration to consider the Seamen Acts and by judicial power in conjunction with Worcester and Nullification. The new, assertive British position was inspired by the imminent fall of colonial slavery. By the summer of 1832, E mancipation was almost a certainty, though the exact path it would take was an absolute mystery. British Parliamentary officials hotly debated how to integrate politically, economically, and l egally the freemen and m u l a t t o e s in post Emancipation society. 60 But the Toleration Laws and impending future freemen in the Empire The Foreign Office and Board of Trade also had to consider anew the rights of Afro Britons traveling abroad, especially to the Southern United States. How would slaveholding nations react to the fluctuating definition of British subjecthood? C ould Great Britain in existing commercial agreements ? With the reopening of British West Indian trade with the United States, and with the expansion of the Seamen Laws, these questions demanded swift attention. In this new context, Britain quickly lowered its white flag and resumed its attack on the Seamen Laws, and this time in the name of black British subjects In a letter to the Foreign 60 Green, British Slave Emancipation 121 155.

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144 Office, Crown officers sang a familiar tune and declared the Seamen Laws to be a most arbitrary and oppressive measure, placin possessions and the United States under restraints and restrictions which are altogether inconsistent with Treaties between the two countries this time, calling the Seame subjects as secured Accordingly British officials in Washington received instructions to press for the immediate alteration of the usly 61 If the particular status of new free men remained ill defined in the metropole and in the colonies the British government was going to pr esume them to be full fledged British subjects whe n they travel ed to the United States. Thanks to British officials, the Jackson Administration now had to contend with laws that united Georgia and South Carolina at the very moment when Jackson wanted to isolate South Carolina and its reigning Nullification government from Georgians weary of federal power. As Secretary of State Livingston ruminated on the appropriate response to the Seamen Laws in the midst of Nullification, he read the opinion of the recently departed Attorney General John Berrien, who had returned t o his native Georgia. Berrien initially received his post as a firm supporter of President Jackson in the Cherokee saga in Georgia, but he was on the outside looking in as an agitator in the Eaton Affair and as a defender of the Bank of the United States, to which he often served as an attorney during his days in Savannah. 62 Cherokee removal mitigated their disapproval. In the end, the Administra tion wanted to uphold 61 Herbert Jenner to Viscount Palmerston, March 23, 1832, in Correspondence 39 40. 62 For a well written and detailed analysis of the Eaton Affair and its impact on the Jackson Cabinet, inclu ding John Berrien, see Jon Meacham, American Lion: Andrew Jackson in the White House (New York, 2008): 125 178.

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145 the Seamen Acts without uniting Georgia and South Carolina on the issue of Nullification. If Secretary Livingston only knew Berrien was no favorite of Calhoun (he later explicitly rejected successor. 63 To guarantee that the opinion of the recently departed Berrien complimented the aims of the new Kitchen Cabinet and would not splinter the Democratic coalition, Livingston demanded the opinion of the though Taney never responded. 64 But after a second entreaty no doubt motivated by the new politi cal environment Taney provided an elaborate opinion. In it, Taney laid down his initial position and tackled a number of provocative issues, opining on the limits of the treaty making power, the possibility of black subjecthood and citizenship, the obli gation of the executive to obey judicial pronouncements, and the contour between judicial oversight and legislative 63 Berrien and the Administration of A Journal of Southern History 5 (November 1939): 447 467. In 1844, Berrien attended the Whig National Convention that nominated Henry Clay for the presidency. What really attracted Berrien to Jackson and vice versa was the Indian question. heart, and Berrien wholeheartedly agreed with Jackson about the need of evicting the Cherokees from northern Georgia. It was on this issue alone, apparently, that Berrien was appointed Attorney General. Later in his stint, Berrien punted when Jackson asked him to opine about the unconstitutionality of the Bank. 64 Livingston to Taney, August 9, 1831, Domestic Letters of the Department of State Roll 22, National Archives, College Park, MD. In the fall of 1831, Taney did offer his opinion on a case similar in some regards to the seamen acts. concerned a British master whose slave was set free by a state law or court. Taney forcefully declared that the federal government had no bu siness getting involved, saying that the debilitating clause in the treaty meant that all state laws were part of the laws of the United States. Taney also foreshadowed the future breakdown of interstate comity when Northern States, starting with Massachu setts in 1836, start offering the same Somerset habeas corpus rights to slaves that England did. In England after the famous decision by Lord Mansfield, slaves who entered England could not be compelled to leave the country his or her master. While the d ecision did not free the slave per se Taney to Livingston, December 6, 1831; See Roll 71 in Miscellaneous Letters of the Department of State, 1789 1906 Records of the Department of State (RG 59, M179A), National Archives, College Park, MD. In the case of Commonwealth v. Aves 35 Mass. 193 (1836), the Massachusetts Supreme Court created the s ame kind of precedent by granting a writ of habeas corpus to a slave who was brought voluntarily into the state by her master. After this decision, other Northern states started to create similar precedents, eliminating the right of slaveowners to travel through Northern territories with their human property For an excellent overview of the Aves decision, see Paul Finkelman, An Imperfect Union : Slavery, Federal ism, and Comity (Chapel Hill, N.C., 1981) See Chapter 8 for the rapid destruction of interst ate comity and the constitutional stalemate created by the seamen act sojourning slaveowner contradiction.

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146 discretion. In its depth on these subjects, this opinion put constitutional muscle on the political skeleton of the Jacksonian agenda. 65 In question: did the South Carolina Seamen Act come into an unconstitutional conflict with the 1815 treaty with Great Britain. For Taney, there was no conflict. The tr eaty stipulated that South Carolina was enacted by proper authority and because no competent judicial authority had ruled the law unconstitutional, then the Sea men Acts were officially part of the laws and statutes been submitted to by the citizens of the United States & recognized & obeyed by them as valid and oblig 66 Thus, the British government had no ground upon which to complain to the State Department of a treaty infraction. If an individual British subject thought the law inappropriate, his only potential recourse would be through American judicial chan nels (though Taney would soon discredit this avenue of recourse as well) and not remonstrations through the British government and U.S. State Department. But Taney denied that black British sailors were subjects according to the 1815 Treaty. In now apply to free people of color in the British Empire. But in good originalist fashion, Taney looked to the treaty 65 This handwritten, unpublished opinion can be found in Box 1 (1790 1839), Office, Opinions on Legal Questions, 17 90 1870 National Archives, College Park, Md. One Taney biographer, Carl Swisher, has a transcribed copy of the draft in his collection and that typed copy proved convenient. See Box 21 in the Carl Brent Swisher Papers, Manuscript Division, Library of Co ngress. Two other historians have written The Origins of the Dred Scott Case; Jacksonian Jurisprudence and the Suprem e Court, 1837 1857 (Athens, Ga., 2006). All quotes in the following paragraphs are taken from the original draft until otherwise noted. 66 Elkison decision as well as the numerous objections of Northern merchants (an d even some South Carolinians) who claimed the law unconstitutional.

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147 negotiators of 1815. For them, and Taney thought this was obvious, ubject] cannot unfortunate people came into the dominions of Great Britain but as slaves; whose posterity it was then intended s foreshadowing of Dred Scott The privileges there granted to some of them, jurisdiction honoring the subjecthood claims of free black Britons did so o ut of generosity not obligation For Taney, British Emancipation did not alter any aspect of existing trea ties, an d neither the federal nor the state governments were under any obligation to alter their laws based Afro Britons remained outside the common legal understanding of subject and thus susceptible to racial quarantines i n the United States. I n his revised draft, the one he actually sent to Livingston, Taney was much more equivocal about the potential integration of colored people into the British body politic. He focused much more on common understandings of the people i n both countries; both considered the other a nation of white men and did not consider those of African descent to be constituent members of the nation. Taney did delete much of his discussion of black British subjecthood, most likely because of the sweep ing reforms of the colonial assemblies and Parliament. However, he still maintained that the common understandings of the two nations would require future treaty makers to employ specific language if they wanted to include free people of color. 67 Based o n the request sent by Livingston, Taney could have ended his opinion here, stating clearly that the State Department was under no obligation to interfere in the operation of the law 67 Taney to Livingston, June 9, 1832, Roll 73, Miscellaneous Letters of the Department of State, 1789 1906 National Archives, College Park, MD.

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148 as requested by the British legation. However, Taney went much further, a nd connected Afro British subjecthood to African American citizenship. In the same way that the black Britons were outside the common understanding of subject, so, too, were African Americans outside the realm of citizens. As for any future claims of Nor thern free blacks based on the Privileges and United States even when free, are every where [sic] a degraded class & exercise no political British subjects, Taney said of African are allowed to enjoy, are accorded to them as a matter of kindness & benevolence rather than of hatever included by the contracting parties of the Constitution, so the Privileges and Immunities Clause was not applicable to them. Otherwise, the slaveholding states would never have adopted the Constitution in the first place. In the same way that jurists ought to have employed originalism and looked at the intent of the 1815 Treaty framers to deduce the meaning of British subjecthood, Taney believed that American citizenship (at the federal level, at least) could only that commo n understanding, according to Taney, did not include people of color. Unlike previous denials of Afro British subjecthood and African American citizenship, de bate looked to local law to determine the citizenship status of free people of color. As shown in Chapter 2, the status of sojourning free people of color could be deduced by the rights they exercised in their home jurisdictions. Senators denying African American citizenship during the

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149 Missouri debates pointed to the absence of particular rights in their home states. Because free black men from Massachusetts, for example, could not marry a white woman, they could not possibly claim to be citizens, since citizens could marry whomever they wished. In the 1823 Elkison decision, and in the debates that raged in its aftermath, British subjecthood was deduced by the same logic. Both Justice Johnson and his detractors looked to Jamaican and British law to dete Contracting Parties Theory, allowed for these types of changes in local law and ev en acknowledged that those changes could even go so far as to grant the full panoply of citizenship rights. But those rights, according to this theory, were statutory in nature, and not constitutional. In other words, those rights could be taken back. L ocal changes in rights and status could not alter the status of non constituent members of the national alteration of their realm of subjects could not post facto obligate recognition by other nations. Consequently, Parties theory of citizenship denied interstate and international comity. Any changes one jurisdiction made to its realm of subjects or citizens were jecthood to its free coloreds had no legal impact on existing treaties with the United States. Likewise, any changes that Massachusetts or Ohio might make to its state citizenry in the future would have no bearing on federal or constitutional citizenship. Therefore, neither Anglo American treaties nor British subjects or state citizens. 68 For Taney, the Naturalization power of Congress was the 68 According to Taney, the Privileges and Im munities Clause was reserved for the contracting parties of the Constitution and their descendants. This understanding was a strange combination of volitional and birthright citizenship. On these theories of citizenship, see James Kettner, The Developmen t of American Citizenship, 1608 1870 (Chapel Hill, N.C., 1978).

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150 only method to a were impossible. Parties Theory e nunciated in 1832 and his majority opinion in Dred Scott are unmistakable, and several scholars have noted the resemblances in logic. 69 African American citizenship and fail to recognize that Taney was making an argument that was not limited by the borders of the United States. After all, British diplomatic efforts spurred British Empire. Britis h Toleration Laws and impending Emancipation were political reality in 1832, and Taney had to contend with immediate British protests. Only changes in British Contracting Parties on African Americans was only speculative. If a state d ecided to extend all rights to free blacks, then the other states could still refuse to acknowledge their citizenship status. Furthermore, Taney saw a close correlation between the United States and Great Britain, the leading constitutional nations of the day. He envisioned both nations, and both constitutional systems, as reserved to white members specifically. For the future Chief Justice, constitutional modernity was strictly a Caucasian accomplishment. 69 For example, see Don Fehrenbacher, T h e Dred Scott Case: Its Significance in American Law and Politics (New York, 1978); Carl B. Swisher, 62; Austin Allen, Origi ns of the Dred Scott Decision ; Leon Journal of Negro History 43 (October 1958): 274.

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151 After illustrating how British and American sail the Seamen Acts, Taney shifted his analysis from citizenship and subjecthood to federal relations. In articulating his understanding of federalism, Taney considered the right to legislate on slavery and free per sons of color to be guaranteed to the individual states by the Tenth Amendment and beyond the legislative and treaty making power of the federal government. While a treaty became the supreme law of the land upon ratification, federal authorities were not treaty could place the power of coining money in the hands of a foreign power. No treaty could alter the confirmation process of Supreme Court Justices. But the expressed powers of the federal government were only one limitation on the treaty void if it came in conflict with rights could legitimately take territory away from a state without its consent, nor could a treaty force a state to adopt a non republican form of government. Analogously, no treaty could violate the Tenth Amendment and force a state to allow the entrance of free blacks if that state restricted their entry as a means of securing its internal safety. If such a treaty was ratified, the states were obliged to prevent its enforcement within its borders, even i f that meant that the federal government had to provide compensation to the aggrieved nation. In case anyone thought this particular defiance of federal law smacked of Nullification, Taney made sure to explain the difference between an unconstitutional t reaty and a constitutional tariff. In enacting laws to carry into effect constitutionally granted powers, legislatures had free reign. For Taney, the Tariff was a perfect, and timely, example. The power for example of regulating commerce plainly gives to Congress the right to impose a tariff for the protection of domestic industry. This power may be

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152 oppressively exercised so as to throw an unjust or unequal burthen on one portion of [illegible] in order to enrich the other. Yet the law would I apprehe nd be constitutional & valid & every body [sic] bound to obey it because the constitution has given the power and left the mode of exercising it to Congress. This was a sly maneuver. The tariff was a method by which Congress was to achieve its constit which overstepped its constitutional bounds and violated the Tenth Amendment demanded state n Elkison but erred in defying the tariff. As for the possibility that other British officers might follow Consul Peshall in Wilmington review over such l to prevent the intermingling of Atlantic savvy free blacks with domestic slaves was appropriate he was also certain that milder measures could achieve those ends. For Taney, though, and this was crucial, the measures taken by a legislature in pursuit of a constitutionally granted power were beyond the purview of the judiciary. Thus, the Seamen Ac ts were not for the courts the manner in which a legislature choo ses to carry into effect a power it is admitted to possess. For support, the future Chief Justice turned to an unlikely source: his predecessor on the High Court. For Taney, the case of McCulloch v. Maryland was emphatic. In that case, the Marshall Cour t illustrated the limits of judicial inquiry; it was not for the Court to determine if the Bank of the United States was a legitimate mode for Congress to exercise its power to tax and coin money. Since Congress had the constitutional power to tax and coi n money, its decision to

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153 Congress exercised its power, then they cou ld express their contempt by instructing their legislators to alter their position or by removing them from office on Election Day. Or, of course, the electorate could elect a President to veto a Bank Charter Bill. 70 Judicial action was only appropriate on those occasions when a state legislature and the federal Congress, both in exercising the same power, created laws that came into conflict. Only in that scenario would the courts be forced to step in, appraise the situation, and strike down the state law if the two laws were obviously contradictory. Luckily for defenders of the Seamen Act, Congress had no power to dictate racial policy to the states, so no conflict could ever arise, so long as Congress did not overstep its constitutional limitations. Mo st pertinent for British seamen, Taney found that no recourse existed. Diplomatic pleading in Washington could have no bearing, and no court of law ought to have jurisdiction to consider the efficacy of the Seamen Acts. Black British sailors were at the absolute mercy of the individual states. Obviously, Taney sought to eliminate judicial relief for the sailors, but the future Chief Justice was quite sure that his views on the treaty making power and on the limited role of the judiciary over legislative d iscretion were not shared by many of the sitting Supreme Court But if the Supreme Court did strike down the Seamen Law as Taney suggested it might, that did not mean that President Jackson was bound to execute the decision. In a ringing endorsement of 70 same time as he was writing this opinion. See Jon Meachem, American Lion 187 200

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154 Worcester v. Georgia Taney outlined the proper course of action for the Chief Executive upon an adverse judgment by the Supreme Court. I am not prepared to admit that a construction given to the constitution by the Supreme Court in deciding in any one or more cases fixes of itself irrevocabl y & permanently its construction in that particular & binds the states & the Legislative & executive branches of the General government, forever afterwards to conform to the r easoning or principles which it announces in coming to its conclusions are equally binding & obligatory. Taney was suggesting that Jackson follow the same route as he did with the Cherokee Cases: allow the state law to remain in force despite a contrary de cision by the federal Supreme Court. But at the same time, President Jackson was obliged carry through the execution of the constitutionally enacted federal law. 71 In other words, Jackson was under no obligation to his conceptualiz provided a c oherent constitutional framework that consolidated a number of central Jacksonian tenets and distinguished racial quarantines from the Bank issue, the tariff and Nullification, and the Cherokee dilemma. His Contracting Parties theory obviated the need for federal intervention on behalf of British and Northern sailors incarcerated under the Seamen Acts all the while 71 rokee cases. See, for example, Gerald Magliocca, Andrew Jackson and the Constitution: The Rise and Fall of Constitutional Regimes (Lawrence, Kan., 2006).

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155 once justified the federal tariff (and therefo re destroyed Nullification) while upholding racial quarantines. His understanding of Presidential and judicial power entrusted Jackson with the ability, or more appropriately the responsibility, of vetoing the Bank Recharter Bill while simultaneously defe Worcester decision. This same understanding also suggested that a Marshall Court ruling against the Seamen Statutes would likewise lack Presidential enforcement, making it a dead letter. Taken as a whole, the Seam en Act opinion provided consistency to the apparently haphazard policies of President Jackson as the election of 1832 drew near. Bank, and his acquiescence to the Seamen Laws translated into an electoral victory in November. tapped as Chief would see many of the constitutional ideas sketched in his Seamen Acts opinion embedded into constitutional law, with the culmination being Dred Scott If one combined the opini the Seamen Acts came into stark focus. In terms of policy, racial quarantines were questionable, but in terms of constitutionality, they were valid. Understood this way, Georgia and North Car olina acted within their proper spheres of authority to restrict the movement of free black sailors. If state authorities believed to represent an imminent threat to the safety and welfare of the people, then racial quarantines could be em ployed to avert its introduction. Furthermore, these quarantines could withstand the claims of African American citizenship and British subjecthood, even though the latter grew louder and more incessant as the

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156 early 1830s progressed. Despite the changing face, or color, of British subjecthood, the United States was not going to adjust its diplomatic and constitutional position to compensate for alterations in British colonial polic ies. Unfortunately for African Americans, the pressure from British diplom ats to recognize black British subjecthood elicited from Attorney General Taney the most vicious theory undermining black citizenship in the United States. In this way, the most contemptible portion of the Dred Scott decision had its origins in the transn ational debates over race and status in the era of British Emancipation. But the impact of British Emancipation on the Seamen Acts was much more immediate Dred Scott opinion. Once the Emancipation Act went into effect, it had instant con sequences in the United States. While motivating abolitionists in New York, Boston, and other Northern areas, British Emancipation simultaneously expanded the fear of outside calated with fear of Atlantic ideologies of abolition percolating into plantations. After all, abolitionism had proven effective in dismantling the most extensive slave empire in the Caribbean. With Emancipation, Southerners were convinced that these ide ologies, and the people who recklessly espoused them, had to remain outside the state. When abolitionists in the United States went on the offensive, sending hundreds of thousands of antislavery periodicals southward, white Southerners unified in resistan ce to the dangerous Atlantic. This unified resistance combined with problems in the British West Indies to cripple the British diplomatic effort against the Seamen Acts. With the British reeling and with a unified South against outside agitation, the Sup reme Court, then under Roger B. Taney, would formally enshrine state police power, further protecting the Seamen Laws from federal intervention.

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157 CHAPTER 6 THE IMPLICATION OF LEGISLATIVE DISCRETION: BRITISH EMANCIPATION, AMERICAN ABOLITIONISTS, AND THE ENS HRINEMENT OF POLICE POWER, 1832 1838 fanaticks [sic] for liberty, it is that the moral power of all Europe is against us it is this that the Robert Y. Hayne South Carolina Statesman, 1835 1 David Walker and his Appeal created the environment that motivated legislatures in both North Carolina and Georgia to enact restrictions against free black sailors. Thanks to the loophole created by the Gibbons v. Ogden decision and exploited by Attorneys General John Berrien and Roger B. Taney, these new laws, couched in quarantine terms, received an ambiguous acceptance by the Democrats in Washington. In terms of policy, many Jacksonians, including Ta ney, believed the laws to be foolhardy and ineffective and hoped that they would soon be expunged from Southern statute books. However, though many disagreed with the laws in terms of policy, the Jacksonians as a whole defended them constitutionality as a legitimate be withheld from their respective jurisdictions. Of course, the racial component of these l aws served as the fulcrum for t h e i r constitutionality. Bec ause Jacksonians (and many Whigs and Nullifiers, too) scoffed at claims to citizenship by racial minorities, they could condone this particular exercise of state police powers. Despite potential philosophical fissures created by the Bank, the Cherokees, a nd Nullification, the Democratic Party by 1835 had united behind the constitutionality of the Seamen Acts; into the 1840s nearly all Democrats toed the party line and 1 Quote taken from William Freehling, Prelude to Civil War: The Nullification Controversy in South Carolina1816 1836 (New York, 1965): 308.

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158 considered federal interference in these laws absolutely unconstitutional. Neither feder al law nor treaties could infringe on such rights of the states to protect the racial status quo. Unfortunately for black sailors, the implication of judicial noninterference and federal impotence was a general belief among the ruling Democrats that on ly the legislative bodies that created the racial quarantines could rescind them. It was up to businessmen, merchants, and racial moderates to lobby their state lawmakers and convince them of the imbecility and impropriety of such laws. From the time the first Seamen Act was passed in South Carolina in 1822, groups attempted to do just that, convince state legislators of the impropriety of the law. In North Carolina they were effective, at least temporarily; in 1831 the General Assembly destroyed the law However, in the rest of the South where Seamen Acts were in force, the possibility of convincing state legislatures that the laws were unnecessary or unwarranted seemed slim. News from the British West Indies inspired abolitionists in the United States while simultaneously convincing anxious Southern slaveholders that their peculiar institution was under attack. This context not only made rescission in Florida, Georgia and South Ca rolina impossible, it also led Alabama to enact similar restrictions against free black sailors. Ultimately, state laws protecting citizens from the dangerous Atlantic received the imprimatur of the Supreme Court in 1837. This chapter focuses on the harde ning resolve of the South against perceived attacks on slavery. News from Jamaica suggested that Great Britain might send an army of freemen to incite a region wide race war. British officials like those who freed the slaves of shipwrecked Americans in the Bahamas appeared intent on undermining Southern slavery in a less militaristic mode, but for white Southerners, the endgame was identical. Abolitionists in New York were sending hundreds of thousands of pamphlets southward, and for white Southerner s,

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159 this was the equivalent of instigating rebellion. Southerners fortified their defenses. They passed a Gag Rule in Congress. They enacted state laws criminalizing the introduction of incendiary literature. They implemented new or harsher Seamen Acts. Most importantly, they proclaimed loudly their constitutional ability to protect slavery through their state police powers. Their arguments were convincing. In 1837, in the case of New York v. Miln the Supreme Court upheld state restrictions against m orally contagious individuals seeking admittance. Henceforth, state law would be the primary shield against the dangerous Atlantic. 2 British E mancipation provided a powerful example for people in the United States, and Northerner and Southerner alike paid close attention to the events unfolding in the Empire. But Emancipation did not occur in a laboratory; no glass walls protected American observers from the Briti sh players involved in the mighty experiment. Scholars of transatlantic antislavery have long understood this social impact of Emancipation. Northern abolitionists did not just read the success of British antislavery efforts as a text as a tarot card hi nting towards the potential future of the United States ; they interacted with British abolitionists. They crisscrossed the Atlantic, they pooled resources, they prayed together, and they created a network of support. In enumerating the social impact of E mancipation on the United States, another variable was also at play. The Act of Emancipation literally created hundreds of thousands of free blacks, and no consensus emerged concerning the proper social, economic, and legal position these freemen and free women occupied. While Emancipation inspired hope and fear in Americans North and South, the new economic and legal status of former British slaves aroused important questions for people in the United States. What was Great Britain going to do with these former slaves? If 2 Or, at least until the Court ruled to the contrary in 1849.

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160 the plantation economy collapsed, as many Southerners believed it would, what would be the replacement? Would more free blacks work as ministers, as sailors, as stewards? Would they stay in the West Indies or would they look to expand antislavery to the rest of the Atlantic World? How would a slaveless British Empire compete against slaveholding nations? These questions about the freed slaves demanded answers, and one person who attempted to provide them was Robert Monroe Harrison, th 3 pictures and bespoke an impending apocalypse on the island. Harrison also sent numerous warnings of British plans t o arm the ex slaves, coordinate them into regiments, and then unleash them on the Southern United States. Though these letters rarely matriculated into the press and to the wider public, they still represent the apprehension felt by many Southerners and f ederal officials in the aftermath of August 1, 1834. Though it would be imprudent to place too much ideas about the intention of Great Britain and the newly freed s laves represent a powerful example of a specific type of anxiety that Southerners felt in the wake of Emancipation, an anxiety about the physical presence of ex slaves and the potential catastrophe they could inflict gerated as they may have been to enhance his own position as quasi diplomat to the island, still provide convincing evidence of the immediate threat posed by Jamaican freedmen. 4 3 Harrison was a self holding various consular and dip lomatic posts in the Caribbean. Apparently, he never betrayed his roots as a proud descendant of Southern slaveholders. He defended the institution until his death in 1858. See Edward Rugemer, The Problem of Emancipation: The Caribbean Roots of the Amer ican Civil War (Baton Rouge, La., 2008): 185 186. 4 Edward Rugemer provides a fine analysis of the Consular letters of Robert Harrison in The Problem of Emancipation 188 197 paraphrase

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161 Even before the Emancipation Bill passed Parliament, Harrison bemoaned the act ivities of abolitionist before Britain declared emancipation, was to prohibit the entry of all free black Jamaicans int o the United States, as their primary agenda was Negroes in the Slaveholding States 5 Harrison despised the free coloreds in Jamaica. Since the moment he was first appointed to be Consul in Kingston in 1831, he had watched th diabolic al 6 7 His premonitions that free black Jamaicans would head to the United States with the ultimate aim of attacking slavery there were coming to fruition. Harrison assured Secretary of State John Forsyth that black emissaries were preparing for departure and would use the cloak of diplomacy to undermine Southern slavery in secret, silently inspiring slave uprisings. He suggested to Secretary of State Forsyth that the United States adop t a program the Spanish authorities recently implemented. Spanish diplomats in Kingston possessed the power to deny passports to anyone of questionable character heading to the Spanish Caribbean. Thereby, Spain could protect slavery in its dominions by p reventing the emigration of British emissaries, white and black, who aimed at 5 Harrison to Louis McLane, July 24, 1833, Despatches from U.S. Consuls in Kingston, Jamaica, 1796 1906 (RG 59, T 31) National Archives, College Park, MD. Emphasis in original. 6 Harrison to Edward Livingston, August 12, 183 2, Emphasis in original. 7 Harrison to McLane, August 11, 1834, September 6, 1834,

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162 destroying slavery by inciting slave rebellions. British diplomats might object, but the security of Southern slavery rested on the government hindering the exploits of Jamaican freemen. 8 By 1838, Harrison became convinced that Britain reconsidered its covert strategy of undermining Southern slavery from within. Now, Harrison claimed, the British were in favor of outright military engagement. He wrote to Washington of free blac ks who openly described a Hayti [sic] and then attack Cuba, from whence with three or four hundred thousand men Harrison was unsure whether British officials were coordinating the plan or simply allowing it to the State Department that the British military had just outfitted four black regiments to be stationed in th e Windward Islands and Canada, where they would remain stationed until an all out assault on the Untied States could be planned. 9 After forming beachheads in the South, 10 According to Harrison, war was imminent; as soon as Britain could garner enough troops and formulate an effective strategy, the United States would be under attack. 8 Harrison to Forsyth, September 8, 1837, may hav entry of all blacks, free and enslaved, sailors and immigrants, from entering Cuba or Puerto Rico. Despite some pressure from New York merchants, Forsy th did not lodge any formal complaints to the Spanish Legation. He also informed the Consul in Havana, Nicholas Trist, that the law in effect was no breach of international law or treaty. See the following chapter for a fuller treatment of the Cuba Seame n Act controversy. 9 There is no evidence that such regiments ever existed. However, the British did utilize free blacks in their navy and marine forces. In fact, Spain enacted its prohibition against the introduction of all foreign born blacks in these 10 Harrison to Forsyth, August 27, 1838, April 2, 1839,

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163 some Americans. For example, George Templeton Strong of New York admitted to his diary that an army headed and flat with absolute chaos ensuing. A British tactic of this sort would surely unravel Southern society. 11 M ost Americans t h o u g h p roba bly did not envision an all out military offensive, choos ing to believe that Britain learned its lesson from the Revolution and from the Battle of New Orleans in 1815. But if most Americans scoffed at the predictions of Harrison and Strong, they nonetheless shared suspicions of British dreams of worldwide aboli tion. For many Americans, Great Britain would love nothing more than to witness the downfall of Spanish and American slavery, and abolitionists and free blacks would be useful tools in accomplishing this feat. Thomas Ritchie, the editor of the Richmond Enquirer forecasted that Jamaica could not escape economic collapse without slavery so long as it existed amongst competing producers. T he editor of the Columbia Telescope in South Carolina, cut to the chase and asked rhetorically, he passage of an emancipation bill is heard throughout the Union, how Duff Green, the influential editor of a leading Democratic newspaper, the United States Telegraph and staunch Calhoun supporter led the charge in casting aspersions at the Machiavellian designs of British foreign policy. While abolitionists were crucial in attacking Atlantic slavery, the real impetus behind the success of the international antislavery movement was savvy British politicians. British politicos shrouded their intentions with a cloak of humanitarianism; their true motivation was plain greed. If Atlantic slavery fell, then the competitive labor advantage that slavery bestowed would diminish, 11 Rugemer, The Problem of Emancipation 197.

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164 and Britain could remai predicting economic disaster or the apocalypse, and whether blaming abolitionists or Parliamentarians, Southerner publisher s demonized British emancipation measures and empathized with dist raught West Indian planters. 12 Great Britain seemed to do more to confirm than counter the conspiracy theories of those like Green and Ritchie. The North Carolina legislature became convinced that Britain sought worldwide abolition. It lambasted Britain a fter hearing a memorial from John Waddell, who was aboard a United States vessel sailing from Charleston to New Orleans in February, 1834. Waddell was heading to a plantation in New Orleans with twenty two of his slaves. Apparently, a random collision wi th a reef forced the brig to seek refuge in the Bahamas. After initially refusing to let the wrecked vessel dock, the Lieutenant General of New Providence finally allowed it to enter port. But before the boat docked, British officials boarded the ship an d three other slaves of various owners. The was outraged. Through the U.S. Consul in Nassau, Waddell suppl icated to the Governor of the islands, but his pleading fell on deaf ears. If Waddell attempted to maneuver around British manumitted slaves hang him 13 The North Carolina Legis lature informed other states and the federal government of the incident in the Bahamas, and the fiasco suggested further that British policy aped the Bahamas reached S ecretary of State John Forsyth, he assured North Carolina officials that 12 West 3. 13 Acts of the General Assembly of the State of North Carolina at the Session of 1834 1835 (Raleigh, N.C.): 94 95. Emphasis in original.

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165 President Jackson would lodge a formal complaint and request that steps be taken to prevent such outrages in the future. 14 at the hands of Bahamian authorities was about to be reciprocated thanks to the unfortunate arrest of the free black Bahamian, William Forster. Back in 1833, an American schooner discharged its crew in Key West after completing its wrecking voyage. Amon g the crew was Forster, who was apparently unaware of the 1832 Florida law against black emigration and seamen. After discharge, Forster attempted to reside in Key West for a short time until he could procure employment aboard another coasting vessel. Lo cal authorities apprehended him, convicted him of transgressing Territorial law, and ordered his immediate departure. Forster seemingly complied, but two years later, he found himself aboard the Amelia an American vessel from Baltimore that began a wreck ing voyage off the coast of Florida. Forster knew he could not leave the vessel but was not local authorities boarded the ship while stopped in harbor and arrested him. After being hauled before a local Justice of the Peace, Forster received his punishment; the court ordered Forster sold into slavery for a term of five years according the provisions of the statute. At the subsequent auction, Forster went i n shackles to the plantation of the highest bidder. 15 In an inadvertent quid pro quo, Florida authorities were enslaving British subjects of the Bahamas while British authorities in the Bahamas were freeing American slaves. Just as slaves could not 14 See Forsyth to Governor (NC) David Swa in, February 4, 1835, in Domestic Letters of the Department of State, 1784 1906 (RG 59, M 40, Reel 25), National Archives, College Park Md. unique. Edward Rugemer details four other instances of British officials fre eing slaves of American masters who accidentally ended up in British territory. See Rugemer, The Problem of Emancipation 197 203. 15 Jonathan Baldwin to Governor of the Bahamas, July 2, 1835 in Correspondence relative to the Prohibition against the Admiss ion of Free Persons of Colour into certain Ports of the United States, 1823 1851 Series 5, Volume 579, Foreign Office Papers Public Records Office, London (hereafter referred to as Correspondence ); 45.

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166 breath e the free air of British dominions, so, too, did it seem that no free black Britons could breathe the air of the U.S. South. informed the Foreign Office, which in turn i 16 When asked unofficially about the possibility of the Executive Branch interceding Secretary of State Forsyth doubted anything could be done. Since Forster Washington, were tied. The only possible recourse, according to Forsyth, was judicial; if British 17 Charles Bankhead, in Washington, suspected that such irregularities existed, believing tha t the law should not have applied to Forster because he never intended to set foot on Florida soil, and only disembarked because local authorities hauled him off to jail. Bankhead was mistaken as to the applicability of the Florida statute. That did not magistrate who ordered the arrest and then convicted him was the same person who bought did not from the wily justice of the peace. Forster immediat ely traveled to Key West, where he was able 16 Viscount Palmerston to Sir Charles Vaughn, Septemb er 23, 1835 in Correspondence 46 17 Bankhead to Palmerston, December 5, 1835; Bankhead to Forsyth, November 14, 1835; Forsyth to Bankhead, November 20, 1835, all in Correspondence 47 49.

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167 to procure conveyance back to Nassau. 18 In all, Forster spent less than six months as an American slave. nightmare preci pitated by the Seamen Acts in South Carolina, Georgia and North Carolina. However, the Florida legislature had enacted something unprecedented. With the acquiescence of the United States government, Florida was enslaving free British subjects. Bankhead contacted the British Solicitor g of the law. Unless some irregularity in the arrest or trial could be proven, the British government could do nothing. After all, Britain condemned to death alien convicts who returned after a sentence of deportation. If iolated the law of nations, then Britain would have to rewrite its own alien penal codes. 19 The most Bankhead could do was to suggest to the officials in the Bahamas of publishing the Florida law in order to prevent a similar debacle in the future. While as punishment was no violation of international law. 20 British Emancipation did not occur in a vacuum, and Southerners did not just watch the events in the British Caribbean as a detached experiment. British desires were much more nefarious. Some Americans, like Robert Harrison, believed the worst. Britain was arming slaves, organizing them into battalions, and setting their aims on the South. Other Americans, like Duff Green and Thomas Ritchie, did not fo resee a racial Armageddon, but they, too, 18 Bankhead to Palmerston, December 21, 1835, in Correspondence 49 50 19 J. Dodson, J. Campbell, R. Rolfe to Palmerston, January 30, 1836, in Correspondence 20 Bankhead to Palmerston, December 21, 1835, in Correspondence 50.

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168 believed wholeheartedly that Great Britain actively sought the downfall of American slavery. This paranoia spelled disaster for black sailors in general, and William Forster in particular. British diplomat Charle s Bankhead summarized the point perfectly authorities in the Southern States have increased their vigilance, in order to prevent the introduction among their slaves of free person s of colour. However expedient this may be for their own tranquility, it is very burthensome towards those of His any of the southern ports from the West Indies. 21 With Briti sh Emancipation, opponents of the Seamen Laws faced an uphill battle in convincing Southern legislatures of the harmlessness of free black sailors. But British Emancipation also indirectly precipitated a major domestic crisis that united the South agains t the designs of antislavery advocates. In less than two decades, abolitionists transformed from political outcasts into a powerful political bloc, and the once quixotic plan for gradual abolition ultimately culminated in immediate emancipation. Abolitio nism in Britain was literally an institutional rags to riches story, and its fairy tale ending of Emancipation left an indelible impression on antislavery societies in the Northern United States. Inspired by the success of British abolitionists, abolition ism in the United States reached new heights in the mid Atlantic borrowed British tactics, money, and personnel. What was a fairy tale to Northern antislavery advocates was tragedy for Southern slaveowners. British Emancipation revealed the inherent dangers of abolitionists in the United States, despite their current miniscule numbers. Many Southern slaveholders wondered about the security of their own peculi ar institution. For many moderate Southerners, the political impotence of the West Indian planters 21 Charles Bankhead to Viscount Palmerston, December 5, 1835 in Correspondence 47 48.

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169 caused them to re flect on the doctrines of Nullification. 22 In 1834, white Southerners may have still considered Nullifiers to be a misguided group of rabble rousers, but imperial government exposed the potential problems with a consolidated, majorita rian national government in the United States If the fe deral government could enact a t ariff at the behest of a federal government from following the will of an ant islavery majority (if it materialized) and attacking slavery through some constitutional channel ? Might slavery be attached to interstate commerce, or interstate comity, and thereby legislated against? Only Nullification, according to Calhoun, Duff Green and others, could protect slavery from the will of an antislavery majority, should it ever develop. While other Southerners were not yet ready to make the leap to Nullification, they shared the anxiety over a federal government unresponsive to Southern prerogatives. Though Nullification fractured the South acting as a sort of ideological splint, a point of departure for a regional rallying cry. Abolitionism must be curtailed at all costs, lest the Union would be sa crificed (at best) or Southern society be destroyed. In short, Northern abolitionists were on the verge of initiating their own public outreach campaign at the very moment when white Southerners began taking seriously the political threat that abolitionis ts posed. Into these tumultuous waters entered Lewis Tappan, the rather moderate New York abolitionist. 23 In May, 1835, he proposed a seemingly innocuous plan to the American Anti 22 The words 23 Antislavery Speech, Press, and Petition in 1835 1837, Northwestern Universi ty Law Review 89 (1995): 787; Leslie Unive rsity of Virginia, 2005, on file with the University of Virginia); Bertram Wyatt

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170 Slavery Society of which he was a member of its executive committee. The delegates responded enthusiastically and approved his designs for inundating the postal service with newspapers and pamphlets that highlighted the immorality of slavery and extolled the benefits of abolition. The plan was national in scope, and more than 20,000 Southerners appeared on the initial mailing lists. The A merican Anti Slavery Society acted quickly as over 175,000 copies of abolitionist newspapers and pamphlets passed through the New York Post Office by the end of July, 1835. Some abolitionists predicted the likely Southern reaction of disgust and contempt, but others believed the mail campaign would convince slaveowners that the global condemnation of slav ery meant that the y s h o ul d c ons ide r v o l u n t a r y m a n u m i s s i o n 24 On July 29, 1835, t he steam packet Columbia sailed into Charleston Harbor with a large shipment of abolitionist publications addressed to ministers, notable slaveowners, and other members of South Carolina society. A scrupulous Charlestonian had discovered the shipment, and quickly informed the editors of the Charleston Southern Patriot that the Columbia was 25 of 26 Huger knew he could not return the publications; as soon as the mail left the Post Office, it would The Journal of Negro History 50 (October 1965): 227 238; Freehling, Prelude to Civil War: The Nullification Controversy in South Carolina, 1816 1836 (New York, 1965): chapter 10. 24 Bertram Wyatt 25 Charleston Southern Patriot July 29, 1835 26 Interestingly, Alfred Huger testified in the case of State of South Carolina v. Daley back in 1825. In that case, Amos Daley sought exemption from the South Carolina seamen act because he claimed to Narragansett Indian, and id not above.

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171 Postmaster then promised the mob that he would sort out the objectionable portion of the shipment and prevent its delivery until he received direction from his superiors in Washington. The mob apparently dispersed, bu t the sequestered mail was stolen from the Post Office later that night. 27 The next day, a crowd of three thousand assembled and burned the mail bags along with effigies of Arthur Tappan and William Lloyd Garrison. 28 The occasion brought together hereto fore estranged members of South Carolina high Huger himself was evide nce enough. He was a Union man in 1832, and he was a diligent federal employee. Yet, he was emphatic in denying the right of abolitionists to use the mail system to set master against slave and undermine the very foundation of Southern society. Huger wo uld and for once the Nation will see the 29 Such a grand statement was not hyperbole; it was quite possibly an understatement, for the rest o f the South joined South Carolina in protest. Unlike the 1832 Nullification controversy, the other Southern states agreed with South Carolina on the propriety of their reactionary measures. Nearly every major city in the South participated in some way ag ainst the mail campaign whether through public meetings, torch lit parades, or the creation of vigilance societies. John C. Calhoun even suggested the 27 Alfred Huger to Samuel L. Gouverneur, August 1, 1835. All of the letters between Huger to Gouverneur can be found in the Gouverne ur Papers in the Manuscript Room of the New York Public Library. Typed, edited copies can South Carolina Historical Magazine 64 (January 1963): 193 202. 28 Wyatt Brown, 29 Huger to Gouverneur, August 1, 1835 and August 6, 1835. Apparently, the only disagreement was whether the mail should have been taken clandestinely or not. Many Charlestonians wished the confiscation happened i n broad daylight. Others wished confiscation only if federal officials in Washington instructed Huger to deliver the mail. See Charleston Southern Patriot July 30, 1835 and Charleston Courier July 31, 1835.

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172 possibility of disunion if initial efforts to suppress the mail campaign proved unsuccessful. Death th reats daily reached members of the AA SS. 30 Popular outrage led Southern state legislatures into immediate action. Virginia declared its that this right slaveholding states ions as may be necessary to suppress and prevent the circulation of any incendiary publications within their prevent free blacks from abetting abolitionists in circulating incendiary material within the Commonwealth. 31 The North Carolina Assembly was equally emphatic. According to the Tarheel State legislature, it would be gross violation of constitutional principles for Northern o their own devices, (white) North Carolinians could maintain a peaceful and prosperous society have a right to demand, that 32 In Alabama, lawmakers came to 30 Southern Patriot September 30, 1835; Wyat t Weekly Register September 12, 1835. 31 (Richmond, Va.): 44 45. 32 1836 119 121

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173 similar conclusions, condemning abolitio nist literature and antislavery travelers seeking to enter publicat 33 In Virginia, Alabama, and North Carolina these firm resolutions about the introduction of poisonous ideas dovetailed nicely with the rationale employed by Georgia, Florida, and Sou th Carolina in enacting their racial quarantines. In fact, the events of 1835 led directly to amendments in both the South Carolina and Georgia Seamen Laws. 34 In C o l um bia l awm a k ers r e visions increased the penalty for recalcitrant captains and statuto rily prohibited sheriffs from failing to execute the law. Henceforth, Sheriffs could not selectively enforce the law without facing indictment. 35 The Georgia modifications also imposed heavier penalties. Since 1829, free black sailors entering Georgia on ly had to ride quarantine for forty days, after which they appeared to have every right to enter the state. After the 1835 revisions, free black sailors could not go ashore even after riding quarantine. If they did, they faced a fine and imprisonment, an d if they could not afford the fine, they would be hired out to cover the costs. 36 The British Consul 33 State of Alabama to the General Assemblies of the several States of 1836 174. Unsurprisingly, South Carolina joined the chorus and reached many of the same conclusions regarding the duty of the Northern States to outlaw specific abolitionist Reports and 26 28. 34 Acts Controversy in South Carolina, 1822 (Ph.D. Diss. University of Iowa, 1976): 247. The legislature refused to act on a motion to amend the Seamen Act in 1834. The next year, the same motion passed, leading to the 1835 revisions. 35 See 34 39. 36 See

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174 in Savannah was so alarmed by the modification that he sent a circular to the governors of the British West Indian colonies to warn them. 37 Abolitionist de termination and Southern recalcitrance put the federal government in a bit of a predicament. While Alfred Huger was busy hording the mail in Charleston and trying to convince the New York Postmaster to halt all shipments of abolitionist literature, Postma ster General Amos Kendall contemplated the policy of his department. Initially, he instructed his underlings that he had no legal grounds to prevent the delivery of the publications. However, he also indicated that prudence, and perhaps the la w, should compel the local Postmasters to suspend deliveries. He suggested to his agent in Norfolk that the inflammatory materials be sent only to actual subscribers and not to unsuspecting Southerners. Kendall set a similar set of to the New York Postmaster who then suspended the transmission of the provocative tracts and informed Huger that the shipments would soon cease. 38 Thus, the mpaign was temporarily tabled without any decisive comment from Jackson, Kendall, o r Congress. During this bureaucratically administered hiatus, the Administration and Congress contemplated their official position s In a letter to his Postmaster General, Andrew Jackson lamented the actions of the abolitionists, and instructed Kendall to allow the delivery of the abominable letters to only those who actually held subscriptions until Congress could pass an applicable law to criminalize their efforts. Jackson also suggest ed to Kendall that the names of the subscribers be made public, so as to agitate the community against those who so wantonly ignored the dangers of circulating 37 E. Molyneux to Viscount Palmerston, February 21, 1837, in Correspondence 53. 38

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175 which he criticized the audacity of the abolitionists and questioned their legal reasoning. In direct contradiction to the rationale of the AA SS, the Postmaster General suggested that local Postmasters could be arrested for violating state laws that outlawed the circulation of antislavery literature even if they were acti ng in an official capacity as an employee of the federal government. Kendall despised the idea that someone in his office could be arrested for fulfilling his duty, but the onus for such a situation would fall squarely on abolitionists who diabolically so ught to use federal employees as pawns in their assault on sacred, Southern institutions. 39 When Amos Kendall reported to Congress at the end of 1835, he had refined many of his positions. Certainly, the Constitution allowed the s lave states to protect their n will, they may deem expedient. doctrine articulated by Berrien and confirmed by Taney as Attorneys General, Kendall confirmed that state laws shutting out incendiary publications or dangerous people were appropriate exercises of reserved powers. Moreover, in states with regulations against specific publications, all or functionaries of the General establishing the propriety of state law prohibiting the introduction of abolitionist literature, Ken dall went one step further and denied any federal ability to protect the delivery of that Congress could 39 9. Kendall was a slaveholder from Tennessee, and a close confidante of Andrew Jackson.

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176 Kendall continued, It is to obviate danger from this quarter that many of the State laws, in relation to the circulation of incendiary papers, have been enacted. Without claiming for the General Government the power to pass laws prohibiting discussions of any sort, as a means of protecting States from domestic violence, it may safely be assumed that the United States have no right, through their officers or departments, knowingly to be instrumental in producing within the several States the very mischie f which the constitution commands them to repress. publications contrary to state law. As for Congress, Kendall believed his policy as Postmaster General had precl uded the need for immediate and direct Congressional action (because the questionable publications were not being delivered). Nonetheless, to protect his employees, he suggested that Congress consider the efficacy of a federal law that might outlaw Postma sters from delivering publications contrary to any state law. For Kendall, Congress could not pass any law abridging state regulations against incendiary mail, but it could pass laws assisting state authorities. 40 We can only conjecture about whether And rew Jackson agreed with Kendall about the power of state laws to indict federal employees in the fulfillment of their duties. Also unknown despite any stat e laws to the contrary. However, we do know that Jackson, like Kendall, hated the abolitionist mail campaign and sought Congressional action to criminalize their project. For offices and post meant that Congress could regulate the postal service as it saw fit, including the ability to prohibit the circulation of specific types of publications, especially those that sought to incite 40 Congressional Globe 24 Cong., 1 sess. (1835): 398 400.

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177 slave rebellion. 41 As such, Jackson requested t hat Congress prohibit the use of the Post Office for the circulation of publications seeking to incite slave insurrection, regardless of any state laws already in operation. The Senate responded, but not in the way that Jackson had hoped. Unfortunately f or Old Hickory, the Select Committee on Incendiary Publications was led by John C. Calhoun, and on February 4, 1836, Calhoun presented his report on a bill that contradicted the wishes of the White House. 42 es about creating a federal standard of prohibited conduct; instead, it demanded that postal employees abide by state legislative standards regarding incendiary publications. It also required the Postmaster General to provide his employees with all state laws concerning the prohibitions on circulation. 43 wished. The argument could be made, Calhoun explained, probably with a dismissive air, that the constitutional pr ovision that empowered Congress to establish the post office also granted an authority to regulate postal circulation. Even if this line of reasoning was appropriate (and Calhoun certainly did not think it was), such Congressional authority could not be e xercised as the President desired. For Calhoun, the roadblock was to be found in the First Amendment. Regardless of the Any attempt by Congress to restr ict the circulation of any publication, no matter how vile and 41 833. 42 nted in Niles Weekly Register February 13, 1836. The following Calhoun quotations are taken from this reprint. 43

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178 sedition act was condemned [by Madison in the Virginia Resolutions] was a general from congress all right of interference with the press, in any form or shape the Sedition Act was ignoble and a federal law against abolitionist literature wo uld be good policy did not negate the fact that both sets of regulations remained beyond the constitutional insurrections. The federal government could only assi st states upon their application; it certainly could not determine for itself when to intervene. Thus, Congress could not decide for itself which publications threatened public safety and which did not. Of course, Calhoun believed the publications could b e restricted by state authorities as a legitimate exercise of police powers. In explaining the relationship between enumerated, federal power and the reserved powers of the states, Calhoun found a logical correlation between the Seamen Acts and laws again st the distribution of incendiary publications. If, consequently, the right to protect her internal police and security belongs to a state, the general government is bound to respect the measures adopted by her for that purpose, and to co operate in thei r execution, as far as its delegated powers may admit, or in measure may require. Thus, in the present case, the slaveholding states having the unquestionable right to pass all such laws as may be necessary to maintain the existing relation between maste r and slave in those states, their right, of course, to prohibit the circulation of any publication, or any intercourse calculated to disturb or destroy that relation, is incontrovertible. In the execution of the measures which may be adopted by the state s for this purpose, the powers of congress over the mail, and of regulating commerce with foreign nations and between states, may require co operation on the part of the general government; Again, history provided Calhoun with proof of his position. In 1799, Congress enacted a law requiring federal customs officials and military personnel to abide by and assist in enforcement

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179 of all quarantine and health laws adopted by the various states. 44 Thus, both reason and experience vindicated state restrictions and proved both federal impotence to act of its own accord and federal obligation to respect state regulations. The Senate bill followed this logic. ations bill did not pass the Senate. Opponents criticized the bill on both constitutional and policy grounds. 45 Only in the 1836 Post Office Act did Congress mention anything about the obligation of postmasters, and the language was incredibly vague. The statute barred postmasters from unlawfully detaining the mail. But what was unlawful? More directly, did state laws impose restrictions on federal postmasters within their jurisdiction? Congress refused to offer any definitive answers to these questions However, Congressional inaction had the desired effect in the South without raising red flags about constitutional powers. T he Postmaster General, with the acquiescence of the President, allow ed individual p ostmasters the ability to prevent the circula tion of abolitionist literat ure, and they did so. The problem facing commentators on both sides of the debate was that the informal, de facto embargo created through Executive inaction was hardly a guarantee that future administrations would honor the Jac ksonian example. Future Congresses might choose to contemplate the mail issue if a new Administration took office and was not so willing to allow individual Post Offices the kind of leeway permit ted by Kendall. If such a future Congress decided that mail in federal 44 The House Post Office Committee came to similar conclusions, though its report never circulated. See Curti s, 7. 45 pre scriptions of the individual states, refrained from delivering incendiary mail, was that not the same violation of the First Amendment as a federal law outlawing such deliveries? Henry Clay thought state legislation was sufficient, as Congress had not pow 5.

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180 assuredly be pried wide open. This acquiescence to state aggressiveness in protecting its citizens from incendiary publications was precisely the positio n the Jacksonians assumed towards the Seamen A cts through 1836. The Administration and Congress had chosen to remain aloof, granting a type of informal acceptance of the laws as necessary exercises of internal police. Yet, there was nothing formally inst ituted that could protect the states in the future. An unlucky election might result in a new policy and, subsequently, disaster. Attorneys General Berrien and Taney believed state laws preventing the introduction of free bl acks and incendiary literature to be protect ed against federal interference These theories of federal noninterfe rence and judicial restraint quickly bec a me some of the arch principles of Jacksonian constitutionalism, but those princ iples had not been canonized In 1837, though, the Supreme Court took the first step towards institutionalizin g the protection of the Seamen A cts and laws against incendiary publications. Although New York v. Miln did not address these two subsets of quarantine per se it did address the constitutionality of state police laws in general and Justices were well aware of the impact of the Miln decision on protecting Southern slavery The result was a ringin g victory for defenders of the Seamen A cts. In New York v. Miln t he issue before the Court was th e constitutionality of a New York law requiring the captain of all vessels entering the port of New York City to provide municipal officials with a list of passengers and to post a bond to prevent those passengers from becoming public charges. When the sh ip Emily entered the port, and its captain refused to pay the bond, city official s brought suit against George Miln noncompliance. This case initially came before the Court in 1835, when Marshall was stil l Chief

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181 Justice. 46 However, t he case was tabled, as the fully empanelled Court wa s not present to hear the case, and Marshall apparently believed that all cases of a constitutional matter demanded the full slate of Justices. Technical issues prevented the case from coming back to the Court until In making their arguments before the Court (after eight years of litigation), the counsel for New York looked to Gibbons v. Ogden and the Seamen Acts in defending the state pauper la w. In turning to Gibbons they sought to draw a distinct line between state commercial regulations which could potentially be an unconstitutional usurpation of federal power if Congress chose to preempt and state police laws, which the Tenth Amendment explicitly protected. In framing their argument, counsel believed the great John Marshall to be authoritative. They quoted him in asserting that the pauper law fell under the protection of the police power, a power that embraces every thing [sic] withi n the territory of a state not surrendered to the general government; all which can be most advantageously exercised by t he states themselves [including] Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state commerce without emanating from the power to regulate commerce. Rather, it originated in the state power to protect its citizenry. If such laws were in fact commercial r egulations, the plaintiff argued, then federal jurisdiction would have few limits, and the federal government could legislate on issues that the Framers clearly intended to remain with the states. If Congress could interfere in these laws through its comm ll vagrant laws, all poor laws, and police regulations, become, at once, solely of federal jurisdiction. 47 46 New York v. Miln 34 U.S. 85 (1835). 47 New York v. Miln, 36 U.S. 102 (1837), at 124.

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182 eggs in one basket. Even if the Court found the law one of commerce and not police, even if the Court would expand federal jurisdiction so grotesquely, that did not mean the pauper law was on its face unconstitutional. Since Congress had not explicitly legislated on the issue of pau pers, as the argument went, the state laws ought to remain intact until Congress acted. Only when a direct conflict occurred would the state law yield. What was utterly unimaginable for the plaintiff was the possibility that the Court would rule the law one of commerce and then strike it exclusive power to regulate interstate and international commerce. 48 This scenario was untenable, counsel claimed, because it would not only expand federal legislation beyond the inte ntion of the Framers, but also destroy all species of state laws incidentally touching commerce. If the Court struck down the New York law as an infringement The laws of the southern states in relation to the int ercourse and traffic with slaves, and to the introduction of coloured persons into those states, also [would] become the s implications were obvious; if the Court ruled in this manner, it w as opening a can of constitutional worms in which certain racial policies in the South would fall under Congressional authority. 49 In his dissenting opinion, Justice Thompson agreed wholeheartedly with the plaintiff. 50 For Thompson, it did not matter whethe r the law in question was one of commerce or one of 48 Gibbon v. Ogden 22 U.S. 1 (1824). 49 New York v. Miln, 36 U.S. 102 (1837), at 125. 50 was one of police or of commerce. Since Barbour and the majority ruled it a police law, Thompson dissented to argue that the exact categorization was immaterial. In dissent, Thompson agreed with the majority that the law should stand.

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183 police. In either instance, the law had to stand. As a police law, it would stand ad infinitum and as a commercial law, it would at least until it came into a direct and obvious c onflict with a constitu tionally to fix any limits upon the legislation of congress and of the states, on this subject, or to say how far congress may, under the power to regulate commerce, control sta te legislation in this respect. It is enough to say that whatever the power of congress may be, it has not been exercised so as, in any manner, to conflict with the state law; and if the mere grant of power to congress does not necessarily imply a prohibition of the states to exercise power, until congress 51 Though in practice the source of power from which the pauper law emanated was immaterial to the case at ba r, Thompson still supposed it to be one of police. [sic] fall more directly within the police power and internal regulation of a state, than that which concerns the care and management of paupers or convicts, or any other class or description of persons that may be thrown into the country, and likely to endanger its 52 If the Court went so far as to annul the 53 It is not difficult to imagine Thompson pr otecting Southern laws against moral contagions in the 51 New York v. Miln 36 U.S. 102 (1837), at 146. 52 New York v. Miln 36 U.S. 102 (1837), at 149. 53 New York v. Miln 36 U.S. 102 ( 1837), at 151 152.

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184 Also in dissent, Joseph Story came to opposite conclusions as Thompson. With respect to Gibbons Story agreed that Mars health measures and othe s co nclusions. For Story, he admitted objec ts of them; but it is with this reserve, that these means are not exclusively vested in opinion in Gibbons regulate commerce, then the states cannot use commercial regulations as a means to effectuating the object of its health or quarantine laws. F or Story, the New York law in particular was definitively a commercial law, placing specific restrictions on interstate and international commerce as defined by Marshall more than a decade beforehand. In sum, Story believed the law one of commerce and, th erefore, an unconstitutional usurpation of Congressional authority. And Story was emphatic about where Marshall stood on the case, as he ended his dissent with a smug reminder to his colleagues that the Great Chief Justice, before he died, had agreed with Story about the unconstitutionality of the New York law in question. 54 In a sense, the Court charted a middle ground between the poles occupied by Story and Thompson, though that middle ground sat much closer to Thompson and emphatically legitimated the co nstitutional edifice on which the Seamen Acts rested. In complete opposition 54 New York v. Miln 36 U.S. 102 (1837), at 151 152.

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185 Congress had no power to act on the subject under the Commerce Clause. But the Court did not rest its decision on such debatable propositions. Ins tead, it bypassed the issue of commerce altogether. In fact, the majority explicitly refused to comment on the legitimacy of concurrency, or the power of both the states and Congress to regulate interstate and international commerce. The Court was satisf the power of the states to protect the health, safety, and welfare by all means not explicitly forbidden by the Constitution. 55 In a passage that could have come from Robert Strange, John Berrien or I.E. Holmes in defending the Seamen Acts, Barbour wrote, [A] state has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation ; where that jurisdiction is not surrendered or restrained by the constitution of the United States. That, by virtue of this, it is not only the right, but the bounden and solemn duty of a state, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation, which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated. That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained. 56 And to prove t hat police laws could rightfully interfere with commerce, the Court specifically cited quarantine laws, the power to pass quarantine laws, operates on the ship which arrives, the goods which it brings, and all persons in it, whether the officers and crew, or the passengers; now the officers and crew are the agents of navigation; the ship is an instrument of it, and the cargo on board is the subject of commerce: and yet it is not only admitted, that this power remains with the states, but the laws of the Uni ted States expressly sanction the quarantines 57 55 New York v. Miln 36 U.S. 102 (1837), at168. 56 New York v. Miln 36 U.S. 102 (1837), at183. 57 New York v. Miln 36 U.S. 102 (1837), at189.

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186 If t h e its application of this position on quarantine involved much more than disease. We think it as competent and as ne cessary for a state to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts; as it is to guard against the physical pestilence, which may arise from unsound and infectious articles imported, or from a shi p, the crew of which may be labouring under an infectious disease 58 With its decision in New York v. Miln the United States Supreme Court declared moral contagions, including race, to be permissible objects of quarantine regulations. With a stroke of Phi Seamen Laws along the lines sketched in Gibbons v. Ogden fell by the wayside. At least for the foreseeable future, the Supreme Court appeared to be endorsing th e positions set out by Attorneys General Berrien and Taney. The Seamen Laws were within the legislative discretion of the individual states. And with the recent mail campaign and rumors of British tampering with Southern slavery, Southern legislatures we re not going to voluntarily rescind their racial quarantines. The 1830s proved to be a good decade for the defenders of the various state Seamen Laws. The apparent antipathy that the National Republicans and the Marshall Court exhibited towards the Seam en Acts during the 1820s shifted as Andrew Jackson and the Democrats seized and consolidated power in state governments, in Congress, in the White House, and ultimately in the the unwillingness of Congress to pass any law in regards to incendiary publications (nonetheless on the rights of black sailors), and the ruling of the Supreme Court in Miln racial quarantines appeared insulated from attack. According to these terms of Jacksonian constitutionalism, only 58 New York v. Miln 36 U.S. 102 (1837), at191.

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1 87 the state legislatures that enacted the Seamen Acts could dismantle them. Unfortunately for opponents of the laws, the events of the mid 1830s further convinced the state assemblies of the necessity, not the impropriety of the Seamen Acts. British Emancipation and the abolitionist mail campaign conspired to prove to Southerners that their institutions were under attack. Subsequently, laws insulating the slave states from people and ideas subversive to slavery were abs olutely necessary. Georgia and South Carolina strengthened their Seamen Laws, and Florida even enslaved a free British subject who entered the state illegally. For adorers of Anglo American harmony, the ascendancy of the reform minded Whigs and their pla tform of antislavery conflicted sharply with the increasing approval of the Seamen Acts in the United States. But the blistering impact of British Emancipation on the rights of black sailors was not confined to the American South. The Spanish Crown, too, feared the onslaught of hundreds of thousands of free blacks from Jamaica, only a shouting distance from Cuba and Puerto Rico. Just as Consul Harrison in Kingston feared the waves of freemen who might be unleashed in the U.S. South, officials in the Spani sh Caribbean likewise fretted about the pejorative effects of freed slaves on Cuban plantations. In 1837, not coincidently, the Spanish Crown prohibited the entrance of all people of African descent into the islands of Cuba and Puerto Rico. Slaves and fr ee blacks, whether employed on board of British or American ships, would be imprisoned once their ships entered harbors within the Spanish Caribbean. At the very moment when the state Seamen Acts appeared immune from all attacks, the federal government wa s faced with the news that American sailors of color were being held in confinement in Havana.

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188 CHAPTER 7 EXPANDING SUBJECT AND CONSTRICTING CITIZEN: BRITISH ABOLITION, NICHOLAS TRIST, AND THE CUBAN SEAMEN ACT Ninety miles separates Jamaica from Cuba and in the social and political wake of British Emancipation, that distance must have seemed small indeed for Cuban slaveowners. Cuban elites must have shuddered as they looked southward and imagined the designs of British abolitionists and the manpower provided by the newly liberated freemen. Unfortunately a glance to the east provided little comfort, as a similar miniscule distance separated Cuba from Haiti, the Black Republic. Only to the North could a Cuban slaveowner look (if he was intuitive enou gh to ignore the Bahamas) to find another slaveholding nation with which to commiserate about However, the physical distance between Cuba and the United Stat es belied the philosophical proximity between the two in limiting the impact of British emancipation on their respective slave societies. From 1822 until 1837, parts of the U.S. South closed their shores to all free black sailors as a means of limiting th e penetration of hazardous ideas of abolition, and these laws took on an added importance with British Emancipation. Beginning in 1837, Cuba followed suit and began barring the admittance onto the island all foreign persons of African descent, sailors impl icitly included, upon pain of imprisonment. 1 The restrictions in the two slave societies were not completely analogous. Unlike its counterparts in the United States, the new Cuban restriction was not only a reaction to mandating the racial quarantine would simply have barred free blacks and not slaves as well. The decision to include slaves in the quarantine was a result of a strained relationship between 1 David Turnbull, Travels in the West: Cuba; with Notices of Porto Rico and the Slave Trade (London, 1840): chapter 4.

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189 Spain and Grea t Britain regarding the illegal slave trade to the Spanish Caribbean. Spain and Britain had agreed to end the international slave trade in a treaty signed in 1817, which allowed trading. And search they did, though Cuban officials routinely obstructed British efforts to bring perpetrators aboard Spanish outfitted ships to justice. 2 Consequently British authorities continued to assume entered the island despite wholehearted Spanish protestations to the contrary. So, in addition to protecting Cuban slaveowners from a potential epidemic at the hands of free blacks, the Royal Decree also served as a gesture of good faith towards British a This chapter will examine the reactions of British and United States officials who encountered the Cuban racial quarantine from 1837 until 1841, when the quarantine was mitigated. In accord with their method of attack on Seamen Laws in the United States, British diplomats excoriated Spanish metropolitan authorities for the treatment of their black subjects in Havana. But in Cuba, British authorities went even further, intimidating co lonial officers and threatening armed invasion, taking advantage of existing friction between Madrid and Havana over the rights of white Cuban Creoles. Spanish colonial relations and the strong British military presence in the Caribbean allowed British of ficials to succeed in Cuba where it failed in the United States. In contrast, American officials had a limited arsenal with which to attack the quarantine. Black citizenship, while contemplated, was jettisoned as a weapon. Moreover, American involvement in the illicit slave trade to Cuba combined with the desire to preserve Cuban slavery made a strong armed approach from Washington imprudent. Even when Native 2 Britain continued to press Spain for increased enforcement of anti slave trade treaties, and Spain responded in 1826 and again i n 1835, but British officials still complained of the continued inundation of African cargoes. See David R. Murray, Odious Commerce: Britain, Spain and the Abolition of the Cuban Slave Trade (Cambridge, 1980): especially chapters 5 6.

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190 Americans faced incarceration for being of African descent, the United States did not press the issue. In the end, the Cuban experience highlights the divergence of British and American ideologies of black citizenship. The man responsible for putting the Royal Decree into effect was the recently appointed Captain General of the island, Don Miguel T acn y Rosique. In the words of one scholar Tacn 3 Ruling the island under martial law despite imperial constitutional re forms in 1835, Tacn sought to maintain the slave trade, prevent a recurrence of Haiti and Jamaica in Cuba, and stifle the meddling of British abolitionists and officials in Havana. So when the Crown sought to limit all foreign persons of color, slave and free, from entering the island, Tacn applied it prejudicially, aiming it towards free blacks instead of the cargo of slave traders. Tacn began arresting black sailors in mid spring, 1837, soon after receiving the Royal Decree, but the first record of i mprisoned mariners from the United States did not reach Washington until the fall. Then, the U.S. Consul in Havana, Nicholas P. Trist, informed the State Department of the recent arrests of American seamen. Nicholas Trist had impressive political credenti als. Before his appointment to Cuba, Trist was a personal secretary to former President Andrew Jackson and according to one of J a c k s o n s holas Trist. 4 But long before he served Jackson, Trist studied law under former President and national icon Thomas Jefferson. Trist cemented his relationship to Jefferson by marrying h i s granddaughter, starting a plantation, and purs uing a legal career. 3 Murray, Odious Com merce 107. 4 The biographer is James Patron, and the quote is taken from Wallace Ohrt, Defiant Peacemaker: Nicholas Trist in the Mexican War (College Station, Tex., 1997): 73.

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191 When Jackson appointed him to Havana in 1833, Trist readily accepted the post. The Havana Consul position was a lucrative one, allowing Trist to garner a comfortable income, supplementing his investments in the States. Trist was gra teful for his post, as many other worthy competitors sought the prized position, including close confidants to Martin Van Buren. Once there, though Trist often wished the demands of his office did not occupy so much of his ealth compelled him to spend the uncomfortable Cuban summers in Washington with his family, a luxury that was probably afforded him because of his political pedigree. 5 Perhaps because of this routine, the first report to reach Washington concerning the a pp was written by Trist in September following his return to the island. On Sunday, September 3, the U.S. Schooner Deposit from Boston, came into the port of Havana. As usual, a boarding boat greeted the master and cre w. A Cuban official checked the passenger lists and asked the captain if he had any black or colored persons on board his vessel. The captain answered in the affirmative and produced his cook, who was promptly taken into custody When the captain object e d the officer plainly told him that his protestations were in vain. If the captain sought exception from the law, he would have to procure that excep tion from Captain General Tacn, the highest ranking officer in all Havana. 6 The next morning, the capt ain of the Deposit hailed Trist, who scoffed at the idea that he was not altogether convinced that that the new law was inappropriate. He certainly did not share 5 Robert W. Drexler, Guilty of Making Peace: A Biography of Nicholas P. Trist (Lanham, MD, 1991): 53; Ohrt, Defiant Peacemaker 73 76. 6 Nicholas Trist to John Forsyth, September 14 1837, Despatches from U.S. Consuls in Havana, 1783 1906 Volume 7, #34, copies of which are located in the Latin American Collection, Smathers Librarie s, University of Florida. [Hereafter referred to as Despatches ] Originals are housed in RG 59 at the Nat ional Archives, College Park, Md

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192 the outrage of the captain about the insulting treatment of his countryman. Trist assumed that the law was some kind of response to the aggressive actions of the British Commissioners on the slave trade. If that was the case, then Trist believed the law 7 Trist had no patience for abolitionist musings, and laws preventing slave insurrections were something that would not have bothered Trist, who routinely inquired in his letters about the security of his own plantations. 8 Thou gh initially hesitant about interposing in the administration of the law, Trist changed tune over the next ten days as he became increasingly inundated with complaints from numerous U.S. captains who faced the same fate as the master of the Deposit Annoy ed that the law was he decided to approach Captain General Tacn i n hopes of securing both an explanation and exceptions for U.S. sailors. 9 However, Trist was not sure how to approach Tacn. Initially, he decided to draft a note in which he recounted the events on board the Deposit that led to the sympathy, Trist stressed the impropriety of the arrest because not only did citizen explain the object and extent of the law to him so that he could relay the information to the aggrieved captains. He also hoped to ascertain whether the law was temporary or permanent in nature so that he could take the appropriate steps to warn U.S. port s of the new regulations. 10 7 Trist to Forsyth, September 14, 1837, Despatches Volume 7, Number 34. 8 Ohrt, Defiant Peacemaker 74 75. 9 Trist to Forsyth, September 14, 1837, Despatches Volume 7, Number 34. 10 Consul Trist to Captain General Tacn, undated, Despatches Volume 7, Number 34, Enclosure A.

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193 It is noteworthy that Trist first contemplated citizenship as the mode by which to approach the Cuban authorities for redress, especially considering the official position of the federal government regarding the existing Seamen L aws in the United States. For Trist the Consul, the black cook was to be protected by the federal government as a rights bearing citizen. Shielded by that status designation, the cook ought to be exempt from arbitrary laws like the one in place in the Sp anish Caribbean, as it violated existing treaties between the United States and Spain. Since these commercial agreements protected the citizens of each nation while engaged in legitimate trade activity, the cook aboard the Deposit should not be subject to incarceration. when he was incarcerated under the South Carolina Seamen Law. In that case back in 1823, Elkison argued that treaties between the United States and Great Britain and his birthright as a 11 Though the federal court existing treaties between t he nations, the law remained intact and had accumulated an impressive understood and condoned what the federal government conceded back in 1831: black skin was a legit imate cause for quarantine in a half free, half slave Atlantic World. Thus, upon r eflection, Trist decided not to send the letter. Had Trist decided to go with his first instincts and press the issue of African American citizenship, he would have found it difficult to defend his position. First, most Americans in had already given his take in 1832 (a view that would be reiterated in his Dred Scot decision), 11 Elkison v. Deliesseline 8 F. Cas. 493 (1823); see Chapter 3 above.

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194 and ineligible to claim American citizenship based on birthright. With public opinion in the United States uneasy about the possibility of the citizenship claims of Afric an Americans in the late 1830s, then Consul Trist would have needed a miracle to convince Cuban authorities to respect rights that black American sailors did not even enjoy in their native country. If the Cuban authorities simply looked to the Charleston jailhouses and saw so called African American American proximity to Jefferson and Jackson, and his Virginia roots precipitated his own refusal of African American citizenship. Trist apparently understood the weakness of his citizenship argument in his first draft, and he certainly wanted to put his best foot forward when approaching Tacn. According to Trist, the Captain General rarely cont emplated the same measure twice; i f the Consul rushed an inquiry, he might receive an equally rushe d reply and thereby prevent a true contemplation and possible re sci ssion of the law. Trist was w ell known to have strong connections with Cuban officials so his characterization of Tacn was probably apt So, Trist decided to employ a different approach in his communications with Tacn. In his second letter, the letter he actually sent to the Capt ain General, Trist did not mention the abuses perpetrated against U.S. citizens by the Spanish government Instead, the letter stressed the profitable commercial intercourse between Cuba and the United States as well as the fear that regulations against s ailors of color would impact negatively that relationship. Trist indicated that ninety nine out of one hundred cooks currently employed on American vessels were black or mulatto, and the proportion of colored employees onboard U.S. steamships was even g reater. And considering the rate with

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195 which steamships were coming to replace outmoded sail vessels, the number of African American sailors was bound to rise. For Trist, it was natural that men with black skin would be better suited to the conditions on board a steam ship. Descendants of Africa were preferable to white men because of their Cu cannot possibly fail to produce, within three months after it becomes generally known, a sensible decrease of the American shipping in this port 12 T o avoid such commercial decline, Trist recommended to Tacn that black crew members from the United States be allowed to stay inside their vessels. Such an arrangement would more effectively segregate foreign blacks from Cuban slaves than arrest and confinement. Again, Trist was raising a point from the Elkison decision from back in 1823. Judge William Johnson similarly ridiculed the South Carolina seamen law. By bringing free black sailors ashore and placing them in jail with domestic slaves our community with the plague, we ourselves turn loose the wild beast in our streets, and we put the fire 13 By leaving free blacks on board their vessels, Trist likewise deduced, the Cuban authorities could more effectively ac insulating Cuban slaves from outside agitation. To prove this method effective, Trist indicated that South Carolina pr eferred to keep free blacks on board their vessels while in port. According to Trist, South Carolina m andated captains to pay a one thousand dollar bond to guarantee th at the sailor would not set foot on 12 Consul Trist to Capt ain General Tacn, undated, Despatches Volume 7, Number 34, Enclosures B & C. Emphasis in original. 13 Elkison v. Deliesseline 8 F. Cas. 493 (1823) at 496.

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196 shore. Onl y when the ship wa s at the wharf, Trist explained, would the sailor have to be confined in jail. Further, Trist was under the impression and he passed this impression on to Tacn are native and residents of States where slavery exists changes, then Cuba could as well. Af determined than that of that State to prevent the entrance of any free negro or mulatto 14 In describing South Carolina law, Trist was largely incorrect in both of his descriptions. As to South Carolina permitting free blacks to stay on board their vessels, South Carolina had no such stipulation. Native American or Middle Eastern heritage to remain on board their vessels so long as the vessels remained a certain distance from shore. The 1825 law did not alter the 1823 Seamen A ct in any other capacity, so all free black sailors still faced incarceration. 15 The 183 5 revisions to the South Carolina Seamen Statute similarly contained no provision to allow free blacks to remain on board their vessels. Equally erroneous distinction in its laws. It is possible that Trist misunderstood an 1835 South Carolina statute that forbade the entrance of slaves who had lived in or Mexico, or any othe any other sister State, situated to the North of the Potomac river [sic] 16 Thus, slaves who had never been to areas 14 Consul Trist to Captain General Tacn, undated, Despatches Volume 7, Number 34, Enclosures B & C 15 (Columbia, S.C.): 41 43. 16 (Columbia, S.C.): 37.

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197 with strong concentrations of free blacks and abo litionists were allowed to e nter the state, but this provision only applied to slaves, not free blacks. Even if the exemption granted to slaves West Indies which includ ed slaveholding Cuba and Puerto Rico makes In fact, t he o nly Seamen L aw that included such a n exemption was an 1830 Savan nah City Ordinance, which supplemented the 1829 state quarantine law that demanded all vessels with free b lack employees to ride quarantine for forty days Th e Savannah ordinance stipulated that vessels from other states and countries could bypass the state mandated, f orty day quarantine if the captain allowed his free black passengers and employees to be tak en into custody and paid the costs of their 17 However, the exemption was short lived, as t he 1835 state revision s to th e quarantine law preempted the Savannah ordinance. So even if Trist knew of the Savannah exemption, it was not in force when he approached Tacn in 1837. Was Trist intentionally misleading the Cuban leader in order to secure exemptions for aggrieved American captains? This is certainly a possibility; Trist was an astute politician, but flatly lying to a foreign dignitary was probably not his modus operandi Additi onally, numerous merchants 18 Even if one dismisses 17 For the Savannah ordinance, E. Molyneux to Viscount Palmerston, July 1, 1835, in Correspondence relative to the P rohibition against the Admission of Free Persons of Colour into certain Ports of the United States, 1823 1851 Series 5, Volume 579, Foreign Office Papers Public Records Office, London (hereafter referred to as Correspondence );, 43 44. 18 Ohrt, Defiant P eacemaker masters and Ship House Report 707 26 Cong., 1 sess. (July 21, 1840): 1 13.

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198 numerous New Yorkers vying for the position) that does not mean that Trist and Havana officers Seamen Law, then Charleston officials were allowing free blacks from slave jurisdictions to bypass the Seamen Law without statutory permission. 19 But if South Carolina did trust their own free blacks, seeing them as troublemakers, it seems unlikely that it would view free blacks from New Orleans, for example, to be any less rebellious. arolina as well as his legal expertise may have given him a level of confidence as he emphatically highlighted the probable ambiguities of the Cuban law in question. Loopholes surely existed that astute minds and hungry pockets could exploit. For Trist, Tacn could surely make exemptions for U.S. sailors without violating the spirit of the Royal Decree. However, when Tacn formally received Trist to discuss personally the cause of determination to adhere to the letter of metro politan law dashed for British abolitionism easily overshadowed any unrealized The South Carolina example that Trist articulated had no effect The Capta in General apo logetically confirmed that the C whatever the consequence s The note 20 While Trist was wrong in believing he could use economic logic and legal finesse to alter readily admitted to the Consul that the law was a dire ct response to black British soldiers 19 Again, there is no direct evidence in South Carolina that these exemptions were made but local arrest records for this period are extremely fragmentary. 20 Trist to Forsyth September 14, 1837, Volume 7, Number 34.

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199 employed by the Royal Navy to intercept slave trading ships headed to the Spanish Caribbean. for British abolitionists, who w ere bent on the destruction of his island. Just recently, Tacn relayed, a British mulatto was arrested upon entering the island, having in his possession several incendiary pamphlets. 21 Tacn took personally his obligation to p rotect Cuba n institutions f rom self righte ous British agitators Just like Southern officials in the United States, Tacn believed his constituents under attack by a British nation eager to destroy slavery worldwide. Recently emancipated freemen were to be pawns in this attack, an d Tacn would gladly execute any u n d e r h a n d e d designs. And the fact that Tacn have been all too aware of th e alleged connection between abolitionist propaganda and the infamous Nat Turner Rebellion in 1831. In the same way that the Abolitionist Mail Campaign propriety of the Royal Decree. Trist forwarded his letters and the summaries of his discussions with various captains and with Tacn to Secretary of State John Forsyth in Washington Forsyth was no newcomer to laws against black sailors. He was representing Georg ia in the U.S. Senate when Savannah officials first discovered a clandestine shipment of Both the Governor of Georgia and the Mayor of Savannah sent letters to Forsyth apprising him of the situation and requesting various federal actions, just as Georgia enacted its first seamen quarantine regulation. As Secretary of State, Forsyth also received formal complaints from the British Foreign Office when the Territory of Florida sold a black British subject at auction for breaking its Seamen L aw in 21 Trist to Forsyth September 14, 1837, Volume 7, Number 34..

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200 1835. He had already explained to British diplomats that the Florida law was beyond the reach of the federal executive, and the fact that the British subject was now a slave (and thereby personal property) meant that any federal interference would b e unconstitutional. So when Act debates. formed any opinion on the matter His one sentence response offered no guidance for Trist in handling the affair. Forsyth simply informed Trist that his letter and enclosures had been received. 22 Perhaps, the legality of Seamen Laws was a fait accompli for Forsyth and the members of th e Van Buren administration. This would explain their apparent lack of interest. Even those who denied the constitutionality of the various state Seamen Laws in the United States did necessarily deny the power of another nation to restrict the entry of wh atever foreigners its government deemed a threat. 23 British emancipation released an epidemic, and the Spanish authorities had the power and responsibility to prevent the contagion from penetrating Despite the fact that Trist was largely unsuccessful in his first meeting with Tacn and his belief that any future endeavors with the Captain General would be unfruitful, Trist found himself again hailing the Cuba n leader on the issue of American mariners. Island officials arrested five crewmen from a U.S. brig in January, 1838, and apparently, two of them should not 22 Forsyth to Trist, January 2, 1838, in Instructions to Consul s Records of the Department of State, Series 11, Volume 1, Book 8 (January 5, 1835 December 31, 1840), National Archives, College Park, MD. 23 Take, for example, Joseph Story, whose dissent in New York v. Miln revealed his belief that the state seamen la ws were beyond the power granted to the state governments. However, in his Commentaries on the Conflict of Laws New York v. M iln 36 U.S. 102 (1837), at 153; Story, Commentaries on the Conflict of Laws Foreign and Domestic 3 rd ed. (Boston, 1837 ): chapter 14.

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201 d immediately. The port authorities refused to discharge them, so Trist s intervention. Not only did Trist want the men returned to their vessel, he also wanted Tacn to large number of Native American seamen, espec ially from Rhode Island, such a 24 Amos Daley, a man arrested for violat was of A frican descent. It declared him susceptible to quarantine, and he received thirteen lashes before being sent out of the state. 25 regarding the recent arrests of Am erican Indians. Tacn apologized to Trist for the confusion going to b e arrested as they had since the quarantine went into effect. Apparently, Tacn would exemption was given. Trist apparently laughed off this potential end a round of the quarantine 24 Trist to Tacn, January 18, 1838, Despatches Volume 7, Number 37, Enclosure D. 25 State of South Carolina v. Daley repr inted in Charleston Mercury June 23, 1824.

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202 exemptions. Apparently, Trist had no intention of bogging himself down with the day to day maintenance of Native American sailors. 26 When Trist contacted Secretary Forsyth about this fiasco, his tone was one of exasperation. Trist informed the State Department that his protestations with Tacn were in vain, and unless Madrid made some sort of definitive clarification allowing sailors t o remain aboard their vessels, then Cuban authorities would continue incarcerating American mariners. The Consul from Santiago de Cuba confirmed this point. 27 Trist suggested that Forsyth procure the precise intent of the law from metropolitan authorities in Madrid in hopes of proving to local authorities in Havana that sailors who remained abo ard t heir vessels were beyond the scope of the regulation. 28 In the meantime, Trist thought it prudent that Forsyth make the seamen law public so as to min 1838, U.S. captains had the ability to keep their black sailors on board by paying a hefty bond as security against those mariners going ashore. For Trist, this alterati on of the Cuban seamen law (which, as we shall see, was a result of British efforts) removed any motive for contacting the State Department regarding Cuban treatment of African American mariners. In fact, the next time that Forsyth heard from Trist about the Seamen Law, it was a complaint against an American captain not about Cuban policy. 26 Trist to Forsyth, January 25, 1838, in Despatches Volume 7, Number 37. 27 See Consul Mahon to Forsyth, February 26, 1838, Despatches from the U.S. Consul in Santiago de Cuba Roll 2. Microfilm copies available at the Latin American Collection, University of Florida. Originals are housed in RG 59 at the National Archives, College Park, Md. 28 In fact, Forsyth had already done so, having received from John Eaton in Madrid an explanation of the Cuban quarantine. Forsyth forwarded the note from Eaton to Trist with very little commentary, apparently content to allow the law to operate unencumbered. See Forsyth to Trist, March 29, 1838, in Instructions to Consuls ( January 5, 1835 Decmeber 31, 1840 ), Series 2, Volume 1, RG 59, National Archives, College Park, MD.

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203 In the summer of 1838, Trist recounted to Forsyth, Captain Jacob Howell of the brig Antelope had abandoned five crewmen who had been arrested and confined under the is Seamen Law. The custom for sailors in jail was for the captain to provide food and water, and then pay for the detention once the ship was set to leave the island. Apparently, Howell had not fed them for two days, after which the starving sailors finally hailed Trist for assistance. Trist sent word to the Howell that such actions were not acceptable, and, a heated exchange ensued. Howell bashed Trist for ever getting involved in the matter in the first place. Trist lambasted Howell for being an alcoholic and skirting his duty in taking care of the men under him. After a couple of days, the captain returned to inform Consul Trist that he had procured for the five sailors passage to Boston on a vessel that was to set sail the following morning. T rist was relieved to hear of the arrangement and hoped that this meeting with Howell would be the last he would hear of the matter. However, two days after the boat on which the prisoners were supposed to return set sail, Trist again received a note from the city jail. Four of the five men who were supposed to be halfway to Boston were still in confinement, and still starving. Ultimately, Trist was able to procure passage to Massachusetts for the sailors, and he even went so far as to offer a letter of i Howell. 29 suppl ied the Cuban authorities with sworn statements of the Antelope assistant, who had been in daily contact with the confined men. 30 It does not appear from the 29 See Trist to Forsyth, July 21, 1838, Despatches Volume 8, Despatch 48. In an enclosure to this dispatch, Trist included a copy of his letter of introduction to the New Bedford Bar. 30 See Enclosures 3 an d 4 in Trist to Forsyth, 21 July 1838, Despatches Volume 8, Despatch 48.

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204 available sources that such an investigation precipitated, but Captain Ho well did not lie idly by while Trist cast his aspersions. The slandered captain wrote a letter to none other than President Martin Van Buren, informing h i m that Nicholas Trist wantonly deprived him of his crew without his consent. Howell to the demands of his post. 31 experience of the sailors themselves. Their sustenance as well as their freedom depended on the beneficence of their captain. If their captain refused to pay the bond to keep his men aboard, then the sailors were sent to the Havana jail, a place not celebrated for its hospitality. If their captain did not feed them, they starved. If their captain set sail without them, then the men presumably remained in jail until someone procured their release. And any captain with a love of money and dishonorable intentions could simply haul his sailors into Havana, leave th em in jail hands of a man who could directly benefit by their demise. For Trist, moral obligation should motivate captains like Howell to protect the men in t heir stead and not take advantage of the potential despotism that the Cuban law placed in their hands. understanding of the racialized social hierarchy that ch aracterized the Southern plantation life Trist knew so well. Captain Howell, like a typical slaveowner, was under an obligation to guardian, the man respons his paternal duty blatantly violated one of the basic social norms of Southern society, that 31 A copy of the letter from Howell to Van Buren, July 26, 1838, is included among the other documents in, Despatches Volume 8, Despatch 48.

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205 physical abuse on people of color was only acceptable when discipline was required. Howel callousness resembled all too closely the actions of a plantation tyrant who abused his slaves for Howell, the old captain must have felt the irony of a rich Virginian slaveowner preaching to him about the proper treatment of black Americans. n shipmasters. In fact, a group of captains and merchants petitioned Congress to have Trist removed for his five respectable ship egedly to the unlawful condemnation and imprisonment of American captains and seamen for alleged and unfounded offences, and to prove him totally unworthy civil suits against Trist. 32 Ultimately, Congress and the State Department agreed that the allegations against Trist were spurious, lacking any concrete evidence of misconduct. 33 hardly ended there. From 1838 until 1841, Congress became increasingly interested in Nicholas Trist but not because of his actions towards aggrieved Ne w York shipmasters. Rather, British military officials and diplomat s accused the Consul of actively assisting the illegal slave trade to Cuba Under existing treaty stipulations, Spain and England had agreed to outlaw the slave 32 d States from Ship masters and Ship House Report 707 26 Cong., 1 sess. (July 21, 1840): 11 13. 33 masters and Ship 2.

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206 trade, and British captain s had the right to search all Spanish ships suspected of engaging in the illicit barter. One way that conniving slave traders could bypass British enforcement was by utilizing vessels with American flags. Great Britain did not legally possess the right t o search American vessels, so slave traders would procure American vessels and outfit them as slave ships. 34 At first, British officials complained to Trist about the misuse of American shipping papers, believing the slave traders to be taking advantage of unsuspecting American consuls. When Trist refused to administer different protocols to ensure the American flag was only waving atop of bona fide American vessels, British authorities accused Trist of complicity. 35 Consequently, Congress conducted a deta iled investigation the State Department. In both cases, the Consul was officially cleared of any wrongdoing, despite the absolute certainty with which British officials in Havana proclaimed their accusations. In 1841, Trist was removed from his lucrative post following the electoral victory of the Whigs. Upon the Democrats victory in 1844, Trist was tapped as deputy Secretary of State in the Polk Administration, where he eventually brokered the contentious Treaty of Gu adalupe Hidalgo, which ended the Mexican American War in 1848. 36 Unfortunately for the present inquiry, Trist spent most of his time and energy in Havana from 1839 to 1841 gathering documents and witnesses for his defense, both against British claims of s lave trade activity as well as accusations from New York merchants who accused him 34 For a superb analysis of American complicity in the international slave trade and the use of American vessels in the illicit commerce, see Gerald Horne, The Deepest South: The United States, Brazil, and the African Slave Trade (New York, 2007). 35 See Turnbull, Travels in the West 435 449. 36 Drexler, Guilty of Making Peace 58 59.

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207 of failing to act in the best interest of U.S. citizens under his watch. 37 As a result, he tabled many of his other obligations and correspondences, including his reports re garding U.S. sai lors suffering under the Seamen Law damage control, whether from international accusations of slave trading or domestic indictments of consular malfeasance. thy towards the victims of the Cuban quarantine did not stop the news from getting out back in the States. The Colored American a New York based African American newspaper, made several references to the fate of black sailors Cuba. 38 Stories from aggriev ed sailors eventually motivated a group of political ly active African Americans in New York City to memorialize Congress for redress. They sent their petition to Churchill Cambreleng, their representative in Congress. Included with the petition was a per sonal letter that bespoke of specific sailors currently incarcerated in Havana. Dutifully, Cambreleng forwarded both to Secretary of State Forsyth, either to bring him to speed or to ascertain the 39 Perh aps Forsyth understood the irony of a New York City Congressmen presenting him with a protest about a police power measure of the Spanish authorities. Only the year before, the Mayor of New York won the leading constitutional case on the subject of police powers, 37 On one occasion, Trist wrote a monstrous, 250 page, hand written note to Forsyth explaining in excruciating detail his innocence. See Despatch 131 in Despatches Volume 8. 38 See October 21, 1837 and July 7, 183 8, for example. 39 A copy of the petition can be found in Miscellaneous Letters of the Department of State, RG 69, M 179, Reel 85, National Archives, College Park, Md.

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208 40 restrict entry to its port, a Congressman from that state was requesting the State Department to help alleviate the burden imposed by the application of a similar quarantine measure by a foreign government. We do not know if Forsyth saw the irony, but he certainly defended the Spanish authority to pass and enforce s abolition societies to introduce dissatisfaction and insubordination among the slaves of th e Island, and being viewed in this light it is not to be supposed that it would be revoked upon the Cambreleng introduced the petition to Congress, where, apparently, n o action was taken. 41 For John Forsyth, and the rest of the federal government, the thought of following the American rid to recognize African American citizenship rights guaranteed by treaty, he would have opened up the ideological floodgates and precipitated a flood of new attacks on the Southern Seamen Laws. Having already defended domestic racial quarantines, and eve n condoning the temporary enslavement of a free black Briton in Florida, Forsyth had little choice but to avoid the black citizenship issue. In contrast, British officials implemented the same arguments as they did in their recent and ongoing battle again st sailor restrictions in the United States. They harped on the rights of British subjects, and 40 New York v. Miln 36 102 (1837). The decision equated physical and moral pestilence as appropriate subjects of state quarantine measures. 41 Forsyth to Cambreleng, March 16, 1838, in Domestic Letters of the Department of State RG 59, M 40, Reel 27, National Archives, College Park, Md. Congressional Globe, 25 Cong. 2 Sess., 426; Philip Hame the United States, and the Negro Seamen Acts, 1822 Journal of Southern History 1 (February 1935): 21 at footnote 76.

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209 in so doing, highlighted American unwillingness to acknowledge the rights of its own free black population. so originated in 1837, when the HMS Romney 42 entered the harbor at Havana with its largely black crews, many of whom were former slaves. The ship was well known to be a slave patrolling vessel, often having on board former slaves who had been rescued from illicit slavers. The black regiment on board petrified Tacn and other persons invested in Cuban slavery and slave trading, as they were armed and protected disembark, Havana could incite rebellion and discourage slavers from entering the port. Interestingly, Cuban authorities did not attempt to board the Romney and escort the men to j ail. Apparently, a British man of war with a company of armed black tars convinced Cuban law enforcement to make an exception. 43 When the white officers from Romney informed the British commissioners in Havana about the men stranded on board, the diplom ats were aghast. They immediately sought instructions from the Foreign Office about the racial quarantine and the predicament of the Romney Romney when the Mixed Commission in H avana began to send the slaves they freed to the Romney and the ship remained a de facto holding facility until the end of the quarantine. 44 The presence of 42 Other sources refer to the ship as the Romany 43 Turnbull, Travels in the West Chapter 4; Correspondence betwe en Kennedy and Schenley, British Commissioners in Havana, with the Foreign Office, 1838 1839 in British and Foreign State Papers, 1838 1839 Volume 27 (London, 1856): 229 268. 44 The Mixed Commission was created and reorganized by the various slave trade tr eaties between Spain and England. The Commission investigated suspected slave imports and had the power to free slaves illegally imported into Cuba. The Commission also served as a type of judicial tribunal for trying suspected slave traders, though, as

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210 the ship in harbor motivated the strict execution of the Royal Decree and also helps explain why T After hearing the news from Havana, Britain sought immediate recourse in Madrid, and Lord Clarendon spearheaded the diplomatic efforts to secure the repeal of the Royal Decree in force in ery privilege to which their fellow West Indies; and thus the practice complained of would every day become more and more vexatious to Brit 45 The British Foreign Office could not depart any further from the official position of the United States federal government, which conceded that race was a legitimate object of quarantine regulation. And unlike the utter failure in Washing ton, DC, British diplomacy in Madrid produced fruitful returns, albeit only after repeated efforts. 46 A large measure of British success in convincing Madrid to loosen the racial quarantine can be attributed to Spanish imperial colonial relations and the ab ility of Britain to use subjecthood claims to criticize the Romney affair. Romney role as a holding facility, see David Eltis, Economic Growth and the Ending of the Atlantic Slave Trade (New York, 1989): 198. 45 Turnbull, Trav els in the West 69 70. 46 Kennedy and Schenley to Palmerston, 20 April 1838 in British and Foreign State Papers, 1838 1839 Volume 27 (London, 1856): 232.

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211 Creole oligarchy in place in Havana was incredibly strained, and his antagonistic relationship w ith the native Cubans put pressure on Madr id to remove Tacn 47 His alleged complicity in the slave trade afforded his enemies on the island with plenty of ammunition especially to a British Foreign Office eager to hear of such abuses and use them as diplomatic ammunition against imperials in Ma drid. The United States was much more lackadaisical about condemning the slave trade, quite possibly because of the extensive involvement of Americans in the illicit commerce to Cuba. Since the United States had a vested interest in protecting Cuban slav ery and the even the slave trade to the island, Nicholas Trist could not similarly exploit the rift between the Creoles and Tacn. 48 49 but his successor, Captain General Don Joaquim de Espelet While Espeleta kept the law in force until word came from Madrid, he appeared susceptible to British overtures. Espeleta did not obstruct the quarantine lift when metropolitan officials dec ided to ease enforcement. The continued pressure from Clarendon in Madrid, the ominous presence of the Romney in Havana harbor, and the near universal dislike of Tacn brought about 50 By 1841, the racial 47 See Hugh Thomas, Cuba, or, The Pursuit of Freedom (New York, 1998): 194 202. 48 Yet Trist vehement ly maintained that there was little he could do about it without enforcement procedures and military support from the Spanish. See Ohrt, Defiant Peacemaker 94 95; Don Fehrenbacher, The Slaveholding elations to Slavery ( New York 2001 ): 164. 49 on in April, 1839. See Kennedy to Palmerston, 15 May 1838, British and Foreign State Papers, 1838 1839 Volume 27 (London, 1856): 235; Trist to Forsyth, July 21, 1838 in Despatches 48; R.R. Madden, The Island of Cuba: Its Resources, Progress, and Prospec (London, 1849). 50 Palmerston to [Havana] Commissioners, September 29, 1838, British and Foreign State Papers, 1838 1839 Volume 27 (London, 1856): 246 247; Turnbull, Travels in the West 72.

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212 quarantine was a dead letter, and British and American sailors of African descent plied their trade without molestatio n. By 1837, the United States government under the Democrats had officially endorsed the position that race could be quarantine regulations. This position liberated the Southern states in enacting Seamen Laws, but it also handicapped the State Department in dealing with the incarceration of African American sailors after the Spanish Crown implemented a new policy prohibiting the ingress of all people of color into Cuba and Puerto Rico. Since the Democrats conceded that such regulations were no breach of the law of nations and that free blacks were not to be considered as citizens or subjects in interpreting treaties with foreign nations, U.S. diplomats had to find alternative arguments in enforcement. Nicholas Trist initia lly framed his protest in terms of the citizenship rights United couched his objections in terms of the commercial impact of the law. Once American mariners wer e allowed to remain aboard their ships and not be forcibly taken into custody, Trist all but stopped his protests. Thereafter, the onus was on American ship captains to prevent the arrest of their sailors by posting bond and keeping them from going ashore Consul Trist remained firmly committed to a social order in which the rights of people with black skin only existed at the pleasure of white citizens. Thus, his primary objective when ican captains who did not properly fulfill their paternal obligation to provide for the men under their watch. He attempted to construct a different social order in his first letter to Tacn, where people with black skins had rights of their own, beyond t he leisure of white patrons. Ultimately, Trist could not reconcile

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213 this version of racialized citizenship and reverted to racial stereotypes, like their ability to withstand heat, in constructing his economic argument against the law. s refusal to interpose in the enforcement of the Cuban Seamen Law hinged on several factors: his disdain for British abolitionists and the Romney in particular, his complicity in the slave trade that Britain so wholeheartedly combated and Americans partici pated, and his precarious position between retreating Spanish imperial power and a Creole n to the rights of black For British sailors heading to the Southern United States, however, British s uccess in Havana did not correspond to success in the United States. So stout was state resistance and so thorough was federal acquiescence that British officials doubted their ability to secure any changes in the law. Even when the Whigs took power in 1 841, British efforts proved fruitless. And when the stronghold of the American Seamen Acts, South Carolina, appeared ready to ma ke concessions to a politically savvy a n d n o n c o n f r o n t a t i o n a l British Consul, a g g r e s s i v e setts u n d e r m i n e d the process.

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214 CHAPTER 8 FROM CON GRESSIONAL CONTEMPLATION TO INTERSTATE DISASTER They have attempted to go too far, to define and fix that, which cannot, in the nature of things, be defined and fixed. They seem to have forgotten, that they wrote on a question, which touched the comity of nations, and that comity is, and be a matter of doubt, which should prevail; and that whenever a doubt does exist, the court, which decides, will prefer the laws of its own country to that of a Joseph Story 1 By the end of 1837, the Seamen Acts appeared constitutionally impenetrable. The reigning Jacksonians had constr ucted an impressive fortress around racial quarantines. The Supreme New York v. Miln animated theretofore hazy definitions of state police powers. In that decision, quarantines were specifically cited as distinct from federal commerci al authority and, therefore, beyond the purview of Congressional legislation. British supplications were fruitless. The same reforming impulse that brought about British Emancipation convinced Southern legislatures that outside agitators abolitionists, free people of color, etc. sought the Atlantic wide destruction of chattel slavery. Whig Ministries pressed Democrats in Washington both federal and judici Parties theory sat poised to confront claims by African it hindered the rights claims of Afro The Seamen Acts were so firmly rooted in the American political landscape that even a similar racial quarantine enacted by Spanish authorities in Cuba did not result in formal protests from 1 Joseph Story, Commentaries on the Conflict of Laws Foreign and Domestic 3 rd ed. (Boston, 1837): 39.

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215 enacted a Seamen Statute in 1839, they must have believed themselves on solid constitutional footing. 2 Southern and Jacksonian resolve to allow the Seamen Acts to remain in force took a toll on the Whig Ministries in London. Unable to convince the United States to recognize black subjects, the Whigs were in no position to follow up diplomatic remonstrance with any meaningful policy changes. Already hard pressed by Conservatives and Chartists for their domestic policies and facing criticism for the proble ms with colonial Apprenticeship, the liberally minded Whigs found public opinion turning against them, ultimately losing Parliament in 1841. The new Tory Ministry, headed by Sir Robert Peel, abandoned formal protests against the Seamen Acts, probably awar e of the futility of previous governments. Individual Consuls could flatter local lawmakers in hopes of gaining exemptions for black Britons, but the Foreign Office was officially out of the Seamen Acts game. Ironically, the same year in which the Tories took Parliament and abandoned formal efforts, the American Whigs wrestled control of the federal government from the Democratic incumbents. Largely favoring economic development at the federal level including an expansive understanding of the general g facilitating interstate and international commercial activity the Whigs would seem to be much more responsive to protests against racial quarantines. The same Northern urban seaports that supported the Whigs often contained leading o pponents of the Seamen Acts. Put bluntly, British efforts ceased at the exact moment when Washington was most likely to be persuaded. A prominent group of Boston shipmasters and attorneys understood the likelihood of Congressional intervention under the W higs, sending a petition to the House of Representatives. Motivated by political opportunism and a rapidly expanding antislavery movement, the 2 134 136. The act actually passed in February, 1839.

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216 petitioners hoped to convince Washington to enact legislation that protected African American sailors plying the ir trade in Southern ports. Their expectations were not realized; after extensive debate, the Whig House decided against interfering in the Seamen Acts, despite the fact that the majority report from the Commerce Committee found the laws unconstitutional. Upon hearing of Congressional inaction, the Massachusetts state government decided to take matters into its own hands. In an attempt to bring the Seamen Acts before the federal courts, the Massachusetts legislature and governor sent two agents into the South, only to have them evicted with threats of mob violence. This chapter explores the shifting political world of the 1840s and its impact on the Seamen Acts debate. As racial quarantines expanded into Alabama, Mississippi, and especially Louisiana, British Consuls, Northern merchants, and antislavery societies complained bitterly. Inspired by Congressional apathy, aghast at Southern audacity, and increasingly persuaded by abolitionist protests, state officials in Massachusetts assumed the leadership role in attacking racial quarantines in the absence of formal British protests. Heading Southward with threats to bring the Seamen Acts into federal court, Bay State officials inadvertently undermined British conciliatory gestures. In supreme irony, Bri tish flattery a diplomatic carrot had almost armed with a diplomatic stick convinced South Carolinians that any alteration would be a sign of moral and political weakness. South Carolina lawmakers wanted to prove their strength. interference with the administration of the Seamen Act. Interstate comity had lost all meani ng. As early as 1833, abolitionists took notice of the Seamen Laws and the threat they posed to interstate comity. David Lee Child, most well known for being the husband of Lydia Marie

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217 Child, was never accused of being a brilliant attorney. He apparently chose law as an afterthought, having served as a United States diplomat before being admitted to the Massachusetts bar. His career as an attorney was short lived, as his abolitionism caused him to seek other pursuits, namely the development of the sugar beet and the editing and publishing of antislavery pamphlets and periodicals, of which his wife was a prodigious contributor. However, in a speech he gave in 1833, David Child foreshadowed several complicated constitutional questions that would emerge in Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New torn from the protection of that flag of which we boast, that flag which we expended millions, and sacrificed thousands of lives, to vindicate from outrage similar in kind, but not half as great by War Hawks in 1812, Child claimed the laws incarcerating black sailors resembled the impressment of American sailors by British adversaries. constitutional protection s in the South, but Southern slaveowners traveling above the Mason state has nullified from ten to twenty years the only article of the constitution, which prote cts our free fellow claim to the last pound of flesh the execution of that provision of the Constitution, which secures comity irked Child, and he chided his fellow Bay Staters to assume a stouter, more assertive

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218 position in dealing with Southern manipulations of the Constitution. In a remarkable premonition of the events that would transpire nearly a decade later, Child continued, But then the union, what will become of the union if we stand out, instead superstitious in our devotion to the union. All thi s the slave states know, and they have played upon us by means of it. Our tried attachment to the union is a bank of political power, upon which southern jealousy and ambition have made what drafts just and considerate towards our unreasonable countrymen, but at the same time steady and resolved in ourselves. 3 emasculated Massachusetts protestors. David Chil and soon to be exploding problem associated with the Privilege s and Immunities Clause in the C onstitution. Child was disgusted that Southern slaveholders could flaunt their human property in Boston, relying on that clause to protect their chattel while sojourning in or through Massachusetts. In 1833 when Child gave his speech, the Massachusetts judiciary had not yet adopted the Somerset principle, that any slave breathing the free air of Massachusetts could not be f orced back into slave territory. 4 Child grimaced as white slaveowners employed this part of the Constitution to protect their property, while South Carolina and Georgia ignored similar claims made by free black sailors from Massachusetts, who fell victim to the Seamen Acts in Charleston and Savannah. For Child, it was a gross miscarriage of justice that white Southerners could claim this protection of the 5 3 Speech by David Child to the New England Anti Slavery Society at their First Anniversary Meeting, January 16, 1833 reprinted in The Li berator July 27, 1833. 4 For the definitive work on the application of Somerset in the United States, see Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill, N.C., 1981). 5 A similar observation about the hypocrisy of comity can be found in 20

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219 Unfortunately for Ch began applying the Somerset principle three years later when Chief Justice Lemuel Shaw honored a habeas corpus claim for a young slave girl in Commonwealth v. Aves in 1836. Thereafter, a ny slave voluntarily brought into Massachusetts could not be compelled to return to slave territory, indirectly liberating the slave, so long as that slave remained within The Citizens of each State shall be entitled to all Privileges and Immunities of slaveholding was not a privilege of the citizens in the several states. Slavery was not recognized in Massachusetts, so Southern slaveholders could so Aves did not discriminate against Southern slaveowners; it only placed them on equal footing with citizens o f Massachusetts. By implementing Somerset rhetorical strategy and posed problems for free black sailors incarcerated in Savannah and Charleston (and soon Mobile, Biloxi, New Orleans, etc.). If Massachuset ts could define which citizenship rights were to be equally honored to its own citizens and citizens of other states, then South Carolina and Georgia could also decide which rights to honor to its own citizens and the citizens from Northern States. Seen i property claims of sojourning slaveowners could be twisted by Southern jurists to undermine comity arguments against the Seamen Laws. Up until the early 1840s, however, the plight of black citizens and issues of comity remained ensconced in abolitionist circles, on the periphery of mainstream American political with the precariousness of Northern sailors in Southern port cities. A copy of the edi torial can be found in Peter Ripley et al., eds., The Black Abolitionists Papers Volume 3 (Chapel Hill, N.C., 1991): 380 382.

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220 and constitutional concerns. The ascendant Democrats had help put to bed the two primary constitutional issues involved with the Seamen Acts at least at the federal level; the Supreme Court had given express life to the concept of police powers in New York v. Miln in 1837 thereby undercutting the ability of the Commerce Clause to combat the Seamen Laws and the elected branches appeared co ntent to ignore the larger question of African American citizenship, Parties theory if (and when) the issue became unavoidable. And at the state level, most governments restricted the rights of Afri can they did so. In short, it seemed unlikely that the Seamen Laws would come under federal review any time soon. 6 However, a decade later, Massachusetts forced federal c ontemplation, deciding to follow Aves decision had meddled with the constitutional logic 6 A quick perusal of the many state constitutional convention during the 1830s reveals that most states sought to curb the rights of African Americans, but did not explicitly describe citizenship in racialized terms. The 1839 o other disabilities to African Americans. In Article XI, Section 2, t citizens to bear arms, in defence [sic] of themselves and the S general correlation between freemen and citizens, though most of the rights set out in Article IX applies to all specific rights concern the right to keep and bear arms, the right to hold office, and the ballot. At some points, the term citizenry is utilized in distinction to the a men, and representation was based on free white inhabitants. In the 1835 North Carolina Constitution, free blacks were disfranchi sed, but a ll other rights did not include race specific language The problem was directly confronted in Crandall v. State 10 Conn. 339 (1834), where the Connecticut Supreme Court refused to touch the claims of black citizenship, resorting to legal technicalities to maintain silence on the issue. Abolitionists were aghast at the Whether free people of color are entitled to the protection of the constitution as citizens, is one of the most interes ting in important questions that has ever been agitated i n the courts of law in our country, inv olving in its decision directly the rights of three hundred thousand free people of color, and indirectly of more than two million slaves. That free people of color, born in the country are citizens, would seem to us to admit of no dispute, and published on this subject during the last year, than in double the time at any preceding period, except perhaps during the agitation of the Missouri question Second Annual Report of the New England Anti Slavery Society (Boston, 1834): 15 16.

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221 are difficult to ascertain precisely. Surely, resentment had been building steadily since the 1820s, when South Carolina first began to routinely imprison free mariners for the crime of having dark skin. Yet, mounting pressure does not answer why 1842 was the year to act. Most likely, it was a confluence of factors leading Massachusetts to stiffen in its defense of black sailors. The actions of the Supreme Court, British agents in the Caribbean, and vindictive Southern legislatures most likely precipitated the newfound hostility to racial quarantines. In 1842, the Supreme Court handed down Prigg v. Pennsylvania the landmark case concerning the enforcement of the 1793 Fugitive Slave Act. In that case, a Maryland slaveowner hired Edward Prigg to retrieve her slave property, a woman named M argaret Morgan, who had fled to Pennsylvania. Prigg found the fugitive slave and returned her to Maryland, in kidnapping statute. Prigg was arrested and convicted, and his appeal to the Supreme Court forced the J ustices to confront the duty of the State officials to enforce federal law. In overturning the Pennsylvania statute, the opinion, written by Joseph its own proper departments legislative, judici al or executive, as the case may require, to carry into effect all the rights and 7 Furthermore, Story denied a concomitant obligation on the part of the states, even going so far as to suggest that states could enact laws prohibiting state officers from enforcing federal laws. The decision may have motivated some conscientious advocates of black sailors to confront the federal Congress about enacting mmunities Clause. 7 Prigg v. Pennsylvania 41 U.S. 539 (1842), with quote from 541.

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222 Much more likely, the decision by people in Massachusetts to actively combat the Seamen Seamen Act, literally weeks before Massachusetts adopted its proactive strategy. The Mississippi variant barred the entry of free black sailors, inflicting corporeal punishment for first time offenders and mandating enslavement for repeat perpetrators. The previous winter, Alabama amended its racial quarantine to streamline the arrests of black sailors. Louisiana was about to enact its own version as well, though it is unknown how much Boston lawmakers knew of the legislative calendar of Louisiana. And even the Territory of Florida re enacted its provisions a gainst free black seamen at its 1842 legislative session. 8 So, at the very moment n South Carolina, Georgia, Florida, Alabama, Mississippi, and Louisiana. The entire southeastern coastline of the United States, from Wilmington, North Carolina to the Lone Star Republic, possessed a statutory force field repelling free black mariners. I nterestingly, the expansion of the Seamen Acts a major motivating factor in eliciting official protests from Massachusetts freeing American slaves who ended up on British soil. In November, 1841, the most notorious instance occurred when a portion of the human cargo aboard the U.S. brig Creole mutinied and killed the captain and most of the crew. The ship had been carrying slaves from New Orleans to Richmond, but the mutineers figured British soil would be a more attractive destination. When 8 65 71; 11 12; 1842 308 318;. reprinted in House Document 72 27 Cong., 3 sess. (1843): 25 see National Anti Slavery Standard March 17, 1842; on Louisiana, National Anti Slavery Standard June 23, 1842 and October 6, 1 842. The latter issue also contained a warning to all sailors and shipmasters who might have been unaware of the new regulations.

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223 the Creole reached the Nassau, British authorities investigated the mutiny and decided to free all of the slaves (numbering more than one hundred) who had not directly contributed to the murders of captain and crew. Southerners were outraged and demanded immediate 9 In Louisiana, the state legislature cursed breath that it enacted it first Seamen Statute. 10 Immediately, British and Northern sailors flooded just outlawed black sailors. People in Boston were fully aware of the Creole incident as well as the new Seamen Laws it spawned. 11 British agents also became painfully aware of Southern reactions to the liberation of the Creole g letter to his superior regarding the Creole mess and its the laws in force here, persons who have been guilty of no crime can be taken from under the protectio n of the national flag, and thrown into prison, and even made to suffer corporal punishment, surely the people of the southern States ought not to complain of the laws of England setting at liberty persons of the same description, when they arrive within t he limits of 12 9 See Edward B. Rugemer, The Problem with Emancipation: The Caribbean Roots of the American Civil War (Baton Rouge, La., 2008 ): 197 204. 10 1842 72. 11 See Boston Courier December 30, 1841; Daily Atlas (Boston), February 26, 1842; Boston Courier February 28, 1842; Liberator January 21 and 28, 1842. 12 Consul William Ogil by to the Earl of Aberdeen, 20 January 1842, in Correspondence relative to the Prohibition against the Admission of Free Persons of Colour into certain Ports of the United States, 1823 1851 Series 5, Volume 579, Foreign Office Papers Public Records Offic e, London (hereafter referred to as Correspondence ); 54 55.

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224 be drawn between the actions of British officials in the Bahamas who freed the Creole mutineers and the enforcers of the Seamen Laws. However, Ogi color would enjoy, certainly the local laws of Jamaica could honor the freedom earned by the mutineers on the high seas. And if the United States at behest of its Southern statesmen continued to press for compensation, Ogilby suggested then the Crown ought to escalate its exertions against the Seamen Laws. Ministry that had spearheaded the protests against the Seamen Laws during the 1830s fell out of power in 1841. Ogilby suggested a more direct and aggressive approach, but the incoming Tory government 13 The new Foreign Secretary, Lord Aberdeen, like Emancipation. 14 Instead, legal advisors toed the line staked out in the aftermath of the initial South Carolina Law in 1823. 15 y rescission of the statutes. The Seamen Laws did not explicitly violate the commercial conventions between the United States and Britain. The Foreign Secretary, Lord Aberdeen, assented to this strict reading of the statute. From 1841 1846, during the e 13 The Foreign Office under the Tories was far more amendable to the United States, seeking to ease diplomatic tensions. During the Peel Ministry, Anglo American relations improved on the whole. The boundary dispute in Maine was resolved by the Webster Ashburton Treaty in 1842. Britain refused to become officially embroiled with Texas for fear of antagonizing Washington. And, in 1846, the dispute over Oregon was resolved quickly so the United St ates could take advantage of the conciliatory Peel Ministry, which was about to lose control of Parliament. 14 Herbert Jenner to Viscount Palmerston, March 23, 1832, in Correspondence 39 40. 15 This position, that the 1815 Commercial Convention did not protect black British sailors, was most clearly enunciated in Stephen to Lack, March 16, 1830, Correspondence 20 22.

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225 Minister, the British government refrained from engaging directly racial quarantines in the United States. 16 Interestingly, the expansion of the Seamen Acts across the Deep South and the Creole Affair convinced British diplomats to consider a softer, more localized approach while those same factors, ironically, motivated Massachusetts to pick up the stick of hard diplomacy. The new aggressive posture in M a s s a c h u s e t t s manifested on two levels, one in a potent pe tition to the federal Congress and the other in the halls of the state legislature. In the spring of 1842, the Massachusetts legislature provided the first domestic, (meaning within the United States) government authorized renunciation of the Seamen Laws Attorney General Opinion. 17 citizen of Massachusetts by the authority of any other state in the Union, without the allegation of the commission of any crime, and solely on account of his color, is a gross violation of the nat ur al law, it seemed to B o s t o n lawmakers, outlawed this facet of Southern racial policy. To correct these irrational and unconstitutional enactments, the legislature mandated, That whenever his excellency the governor shall be applied to in behalf of any citizen imprisoned as aforesaid, and it shall appear to him, by a representation under oath, made b y an creditable person, that such citizen, so imprisoned, is held in prison on account of his color only, it shall be the duty of the governor forthwith to take all suitable and proper measures to cause such citizen to be discharged from his imprisonment, and the legality of such imprisonment to be tried and determined by the courts of the United States. 18 16 Dodson to Aberdeen, 4 August 1843, December 9, 1843, and December 29, 1843, all in Correspondence 61 71. ction of official protest, see Aberdeen to Pakenham, May 7, 1844, in Correspon dence 82. 17 ineffectiveness, not its constitutionality. See Chapter 5 a bove. 18 at 568 passed March 3 1842.

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226 constitutionality would be examined. With this declaration, Massachuse tts officials broke what had become a long tradition of acquiescence to the Seamen Laws. Ever since the Democrats took office in 1828 and installed their conception of state police powers (with New York v. Miln as the crowning achievement), the Seamen Law s had remained immune from governmental attack on commerce grounds, at both the federal and state levels. To be sure, protestors cried foul over the treatment of black sailors on citizenship grounds, but these protests remained outside official state appa ratuses, with epresenting a perfect example. With this 1842 resolution, the discourse on the Seamen Acts took a decisive turn. Now, agents with the sharpened blade of state power ks. Subsequently, defenders of the Seamen Laws were forced to fortify their defenses. Georgia was the first to erect the powerful constitutional embankment set out by former Attorney General and sitting Chief Justice Roger B. Taney in hopes of repelling the Massachusetts assault on the Seamen Laws. When the Georgia legislature received a copy of the Massachusetts resolutions, it sought to confront directly the suggestion of black citizenship that lay at the heart of the matter. In a resolution passed as manifesting a spirit, which, if not rebuked and checked, will, sooner or later, destroy our recognition of black citizenship, then Georgia was willing to part ways with the United States. However, Peach State officials flatly denied that Massac

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227 Georgia has n ever rebuked Massachusetts for frate rnizing with negroes, nor held her up to the reprobation of the States of this Un ion, fo r her violations of the Charter of Confederacy, by proclaiming those citizens, who were not so at the time of the adoption of the Federal Constitution; thereby attempting to add to that sacred instrument, and thus violating the letter and spirit of the com It is an universal rule of construction, that terms used in Statutes, are to be construed according to their generally received import; and this rule applies with great force to the Constitution of the United States...were negroes or persons of color, regarded as citizens at the time of the adoption of the Federal Constitution[?] They were not; and the term citizen, as used in that instrument, can only refer to those who were embraced in its definition at the time of its adoption. Considering these f citizens, under the Constitution of the United States, and that Georgia will never recognize such 19 izenship held by the Contracting Parties theory of citizenship and looked to the Framers and ratifiers of the Constitution to glean the contours of federal citizenship. Whatever Massachusetts had determined to do with its colored population in the intervening years since ratification, those actions could have no impact on the Constitution and the terms by which that instrument was understood during the ratification proc ess. Just as Taney denied that status changes of Afro Britons during Emancipation altered the operation of a previously enacted treaty, Georgia denied black citizenship along the same logic. But before Georgia enunciated this utter denial of black citiz enship and before the Massachusetts government underwrote any specific lawsuit on behalf of a black sailor, a group of free blacks in Massachusetts decided to exercise their First Amendment rights in protest of the 19 181 182.

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228 20 Georgia may declare federal citizensh ip a white reserve, but African Americans in Boston were going to exercise their right to petition Congress regardl ess. Their arguments must have been persuasive. Apparently, the meeting including members of the Spragues, the Danas, the Pickerings, and the Curtises who signed the peti tion. 21 Their petition was incredibly brief The Memorialists requested Congressional the Whig Congress would implement strong, national commercial laws that would bring the Seamen Statutes into direct conflict with federal legislation. Under the Gibbons precedent, such federal commercial laws would demand judicial annulment of the Seamen Statutes under the Supremacy Clause. 22 render effectual in their behalf the privileges of citizenship secured by the Constitution of the 23 In 1842, then, bo th constitutional arguments came before the federal Congress for contemplation for the first time in almost twenty years. When the petition reached the federal House of Representatives, it was sent to the Commerce Committee, with Robert Winthrop a Massac husetts Whig, conveniently presiding. 20 Liberator November 4, 1842. 21 The leading name on the petition was Benjamin Rich, who was a longtime president of the Human Society of Massachusetts and held the welfare of sailo rs and captains sacred. See Alexander Young, Discourse Occasioned by the Death of Benjamin Rich, Esq. Delivered in the Church on Church Green, June 8, 1851 (Boston, 1851). One of d dissenter in Dred Scott Interestingly, when the Commerce Committee referred to the memorial, they never mentioned the fact that free blacks were d Lewis, eds., The Black Worker Volume 1 (Philadelphia, 1978): 217 218. 22 See Chapter 4. 23 Petition reprinted in House Report 80 27 Cong., 3 sess. (1843): 7 9. (Hereafter referred to as House Report 80 )

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229 As might be imagined considering the often loose coalition of politicians that comprised the Whig Party in 1842, the issue polarized the Commerce Committee. In fact, the Committee published two conflicting reports to the rest of Congress; five thousand copies were ordered. The majority report, authored by unconstitutional. Even before engaging the issue of interstate commerce, Winthrop looked to citizenship as the primary proof of the illegality of racial quarantines. The Constitution of the United States expressly provides (art. 4, sec. 2,) that citizens in t Now, it is well understood that some of the States of this Union recognise no distinction of color in relation to citizenship. Their citizens are all free; their freemen all citizens. In Massachusetts, certainly the State from whic h this memorial emanates the colored man has enjoyed the full and equal privileges of citizenship since the last remnant of slavery was abolished within her borders by the constitution of 1780, nine years before the adoption of the Constitution of the Un ited States. The Constitution of the United States, therefore, at its adoption, found the colored man of Massachusetts a citizen of Massachusetts, and entitled him, as such, to all the privileges and immunities of a citizen in the several States. 24 The lan guage of the majority report is telling. Winthrop intertwined two well worn theories of citizenship with a rather novel one. He resorted to the common perception of an undifferentiated citizenry. He relied on the familiar connection between the possessi on of rights and the designation of citizenship. However, unlike his Congressional compatriots for decades Parties theory, a theory recently adopted by the Georgia legislature in denying federal citize nship for sojourning African Americans. Though he came to a far different conclusion than the Chief Justice and the Georgia Assembly, 24 Majority Report, House Report 80 : 1 7.

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230 he nonetheless acknowledged the importance of identifying eligible federal citizens based on the political culture of the 1780s. Perhaps Winthrop was attempting to engage the enemy on their own terrain, but the end result was a tacit acknowledgement to the proposition that the groups eligible for citizenship had not changed since the Ratification debates. But since free bl acks were citizens in 1787, they were protected in the Constitution. puzzling. Among Whigs, a well reasoned Commerce Clause argument would have been persuasive, especially if Winthrop hoped to earn some votes from Southern members of his party. By prioritizing citizenship, or maybe by even bringing it up, he may have undermined his own ability to get the House to approve his proposed resolutions against the Seamen Acts. T he Whig ideology and were reiterations of constitutional arguments against racial quarantines first concurring opinion in Gibbons Winthrop cited the Dormant Commerce Clause, wer is, from its very nature, a paramount and exclusive power, and has always been so regulate admits of no partition. It excludes the idea of all concurrent, as well as of all conflicting, action. Regulation may be as much disturbed and deranged, by restraining what is designed to be left free, as by licensing what is designed to be restrained. ates in which they have been enacted, upon this exclusive making

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231 direct conflict with most, if not with all, of the commercial treaties which have been made by the 25 To counteract claims that th e Seamen Acts were police powers, i.e. quarantine measures, and to prevent the type of legal gymnastics that emerged from Miln Winthrop explicitly elaborated the proper function of quarantine measures. That American or foreign seamen charged with no crime inflicted with no contagion, should be searched for on board the vessels to which they belong; should be seized while in the discharge of their duties, or it may be, while asleep in their berths; should be rendered liable, in certain contingencies over w hich they may have no possible control, to be subjected to the ignominy and agony of the lash, and even to the infinitely more ignominious and agonizing fate of being sold into slavery for life, and all for the purposes of police ; is an idea too monstrou s to permitted to abrogate the constitutional privileges of a whole class of citizens, upon grounds, not of any temporary, moral or physical condition, but of distinctions which origin ate in birth, and which are as permanent as their being. not a contagion. No seamen could pass his race on to someone else by coming ashore. What was being quarantined was abolitionism, or at least the idea that blackness and enslavement were not synonymous. Southern legislatures were probably correct in assumin g that black sailors did There were no tests, no way to prove that race and the contagion were inextricably linked. Alternatively, the law also ignored the very plain fact that many white sailors probably suffered non slaves with black skin, regardless of contagion. In an era before the Fourteenth 25 Majorit y Report, House Report 80 2 3, emphasis in original. On Gibbons see Chapter 4 above. Winthrop also historical record simply does not endors e this perception. British protests grew all the louder in the early 1840s,

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232 Amendment, Wint hrop seemed to be enunciating an early form of an Equal Protection argument, a precursor to a premise that would concern the Supreme Court half a century down the road. 26 Revelatory of the fractured state of the Whig Party, a North Carolina Whig, Kenneth Rayner, submitted the minority report. In it, he merged the amorphous, extra constitutional concept of necessity with specific constitutional arguments. inalienable rights which cannot be bartered in the social compact, the Stat es in the Union could defence [sic], For Rayner, self which the Federal Constitution never intended to deprive [the states], and the taking away of which from any State, by any ingenious implication, offer an avenue t o controvert the Seamen Acts, and if the Constitution could be manipulated to if the Constitution could be wrung to allow federal interference, then the Constitution was not worth keeping. 27 However, Rayner was not advocating disunion. To the contrary, his minority report focused primarily on showing how the Seamen Acts were not rep ugnant to the Constitution, and 26 Majority Report, House Report 80 3 4. Interestingly, Winthrop cited the recent Prigg decision in discussing the power o f the federal government to interpose in the enforcement of state police laws when constitutional mandates Declaration of Independence, and American ideals, in his argument on behalf of the Amistad mutineers. See Argument of John Quincy Adams Before the Supreme Court of the United States in the case of the United States, Appellants, vs. Cinque, and others, Africans, captured in the schooner Amistad, by Lieut. Gedney, Delivered on the 24th of February and 1st of March 1841 (Washington, D.C., 1841). 27 Minority Report, House Report 80 37 49. The Minority report was reprinted in Raleigh Register & NC Gazette March 24, 1843.

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233 how federal interference was not sanctioned. In repelling the Privileges and Immunities argument, Rayner used the Aves If Congress has the power to enforce, in the slaveho lding States, the same relations between the white and colored man, that exist in the non slaveholding States, it must have the right to enforce in the non slaveholding the same which exist in the that, if a master from the South carries his slave voluntarily into that State, the slave is, ipso facto a free man, and the master cannot reclaim him. Southern slaveowners did not seek redress from Aves decision in Congress because they understood the Aves barred sojourning slaveholders the ability to force their slaves out of Massachusetts. Once a South Carolina citizen slaveowner entered Massachusetts, he held the same rights as a Massachusetts citizen. Since Massachusetts citizens cannot hold slaves, neither could citizens from South Carolina while in Massachusetts. Though slaveholders might not like it, Massachusetts could have these habeas corpus laws because the Privileges and Immunities Clause did not forbid it. Southern citizens and Northern citizens were being treated equally. Contrarily, Rayner argued, Massachusetts could not claim Aves and deprive slaveowners of rights to property by local law in one moment, and then ref free blacks rights to movement by local law at another. So long as free blacks from Massachusetts were being treated the same as free blacks in South Carolina, then the constitutionality of the Seamen Laws fulfilled t he Privileges and Immunities requirement. 28 Just in case his interpretation of comity was unconvincing, Rayner denied that free blacks in Massachusetts were state citizens. Rehashing the claims made during the Second Missouri Crisis, the minority repor t looked to the legal handicaps that free people of color endured in the Northern states to prove the absence of citizenship. Because free people of color could not vote, 28 Minority Report, House Report 80 39 45.

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234 hold office, bear arms, etc., they were not citizens in the classic Roman and Greek formulation. In reserving citizenship status for only those who could enjoy the full spectrum of rights, Rayner attempted to prove the inapplicability of the Privileges and Immunities Clause. Of course, Rayner never confronted the paradox of white, femal e citizenship (nor did his opponents, for that matter) a telling sign of the gendered understanding of political citizenship. 29 Citing both John Marshall and Joseph Story (though incorrectly), he defended the concurrency of commerce regulation. Since Congress had not acted, the states were free to do so. Of course, by this logic alone, a simple act of Congress could undo the Seamen Laws. To combat this possibility, Rayne r drew from the rationale of Miln to declare inspection and quarantine laws to ish those who wharves, merely because they stood the citizenship of the party who i do as Winthrop had, and point to the fact that free negroes were being convicted on their race and status, and not from shouting (or even thinking) abolitionist ideals. 29 Parties theory.

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235 could simply ask, "May Louisiana bar all interstate travelers on the assumption that some of them will commit crimes?" 30 As intense as the ideological dissension within the Commerce Committee, one might presume a raucous debate on the House floor. This assumpti on is strengthened by the fact that five thousand copies of both reports were published and disseminated, but only after at least two votes. However, the resolutions against the Seamen Acts were laid on the table without debate, and there they stayed, vic tim to the apparent apathy or timidity of House Whigs in becoming embroiled in such a polarizing issue. 31 When the federal House of Representatives tabled the resolutions against the Seamen Acts, the Massachusetts Anti Slavery Society fumed and the Massac husetts Assembly earnestly continued its program of initiating lawsuits in federal court. 32 demands, the Resolves relating to the Imprisonment of the Citizens of this Commonwealth in other States without the allegation of a Resolve [sic] of counsel, one or more suits in behalf of any citizens that may be so imprisone d, at the expense of Massachusetts, for the purpose of having the legality of such imprisonment tried and 30 Minority Report, House Report 80 45 49. 31 January 28, 1843; Congressional Globe 27 Cong., 3 sess. (1843): 38 4; Journal of the House of Representatives 27 Cong. (1843): 242. It was a small world; Isaac Holmes, the co counsel for the Charleston Sheriff in Elkison and the prosecuting attorney in Daley was the senior Congressmen from South Carolina. He voted agai nst the resolutions in the majority report. 32 See the Eleventh Annual Report Presented to the Massachusetts Anti Slavery Society (Boston, 1843): 18 19.

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236 33 Congress may have chosen to ignore petitions, but the federal courts would not be able t o evade involvement with the Seamen Acts. Although these new Resolves appeared to be part of an aggressive agenda with decisive, purposeful steps, some abolitionist groups doubted the muscle behind these proclamations. In its Annual Report, the Massachu setts Anti Resolves be pu now see whether Massachusetts, after another year of sufferance, is disposed to make it the badge of all her tribe, in all time to come, or wither she is disposed to redeemed the pledge made doubted the resilience of its state government, it was certain of the impotence of the federal abjur [ing] our allegiance to the Constitution of the United States and the Union citizens [who] are ut terly denied the rights of citizenship throughout the slave 34 Though assachusetts A nti S lavery S ociety continued to excoriate state officials for supplementing the federal governmen slave power. 33 Chapter 67. 34 Twelfth Annual Report Presented to the Massachusetts Anti Slavery Society (Boston, 1844): 30 31, 83 85. Emphasis in original.

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237 What these abolitionists construed as moral weakness, a lack of masculinity, and political puffery was actually just poor administration on the part of the Massachusetts state government. Originally, Governor Marcus Morton 35 attempted to appoint Benjamin F. Hunt as the agent in Charleston. Morton might have thought Hunt a good choice. He was a Massachusetts native, long time Charleston resident, and an esteemed member of the Carolina bar and the South Carolina legislature. Hunt, as we shall soon see, was in favor of easing the restrictions of the Seamen Acts, and if Morton knew of this, it would certainly have contributed to his decision to realized that Benjamin Hunt was not the best choice. He battled tooth and nail with Supreme Court Justice William Johnson during and after the Elkison decision back in 1823. Though a moderate in South Carolina politics, Hunt was no friend of erstwhile N o r t h e r n in terlopers nor was he comfortable with a federal court dictating state racial policy. Despite the assumption by the Massachusetts Anti in fact publicly engage the prospect of this potential employment, and so did his political adversaries. The Charleston Mercury ran an between the Massachusetts State government and the esteemed attorney. The Mercury long the mouthpiece of the more radical elements of Carolina states rightsers, had previously celebrated federal ideology back in 1823. By 1843, the combination of a ne w relationship that once existed. Now, the Mercury looked at Hunt with a suspicious eye, curious 35 The members of the MA n Massachusetts, 1817 Massachusetts Historical Review 4 (2002): 61 88.

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238 as to his true loyalty. When the paper learned of Governor Morto Colonel, the Mercury must have believed they had ousted another internal enemy. Hunt vociferously refuted the Mercury letter written to the Charleston Courier his torically the more moderate and less cantankerous paper, Hunt dispelled any rumors about his alleged collaboration with the Bay State or its conniving cadre of abolitionists. Hunt defended the Seamen Act and pointed to his prestigious s history. He proudly explaining that he voted for the original 1822 legislation and defended the law in federal court in 1823. The intervening years cemented his an 36 Maybin, sim 37 A radical New York newspaper was less r at the 38 While Massachusetts bumbled in putting into practice its new aggressive policy vis vis the Seamen Laws, British Consuls in New Orleans and Charleston continued updating the Foreign Office of the bruta l treatment of Afro British sailors, even though the Peel Ministry had 36 Twelfth Annual Report Presented to the Massachusetts Anti Slavery Society (Boston, 1844): 8 10; Register December 2, 1843. 37 Twelfth Annual Report Presented to the Massachusetts Anti Slavery Society (Boston, 1844): 8 10; 7 8. 38 New York Evangelist January 18, 1844.

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239 ceased formal protests. 39 One particular incident demands elaboration. According to the British Consul in Charleston, William Ogilby, four sailors the second mate, a steward, a cabin boy, and an apprentice were forcibly removed from the British ship Higginson and placed in jail according to the 1835 South Carolina Seamen Act. The Consul immediately sought the removal of the second mate, formally requesting the Sheriff to release t he man into his custody. Apparently, the Sheriff complied with this request. 40 But when the Consul visited the jail, he found that the steward, a man named John Jones, was in solitary confinement. According to Jones, he had been placed in isolation follo wing an altercation with the gaoler. The previous morning, the jailer had instructed Jones to sweep the lower section of the jailhouse, to which Jones complied. When the steward later found that no other incarcerated seamen were required to do any physic al labor, he stated he would make his mistreatment known to his captain. The Jones and inflict a very severe beating on him with a stick, after which he locked him 41 men Act violated international law or existing treaties. 39 See John Crawford to Earl of Aberdeen, June 8, 1842, in Correspondence 58 61; Ogilby to Earl of Aberdeen, November 4, 1843, in Correspondence 62 63. 40 The historical record is largely silent about the pervasiveness of this process. There is simply too little evidence to make any definitive claims about the tendency of South Caroli na law enforcement to allow British sailors to remain on board. 41 Ogilby to the Sheriff of Charleston, November 3, 1843and Ogilby to Earl of Aberdeen, November 4, 1843, both in Correspondence 62 63.

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240 to erated in the treaty 42 Lord Aberdeen detested the law, but instructed the legation in Washington to seek modification only 43 Even before receiving explicit instructions, Consul Ogilby traveled to Columbia to talk Ogilby admit e considered altering the Seamen Act to allow seamen to remain on board their ships. Governor Hammond suggested such a modification, and he pointed to the fiasco over John Jones. 44 Apparently the South Carolina Association had printed a report about Jones The but highlighted the problems with the Seamen 42 Dodson to Earl of Aberdeen, December 9, 1843, in Cor respondence 63 64 43 Aberdeen to Pakenham, December 18, 1843, in Correspondence 65 66. 44 Unfortunately, James Hammond did not write in his diary for the entirety of 1843, so hi s exact motivation for seeking an amendment is unknown. See Carol Bleser, ed., Secret and Sacred: The Diaries of James Henry Hammond, a Southern Slaveholder (New York, 1988): 117.

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241 jailhouse built for the sa evidence that incarceration was impractical, and sailors should be quarantined aboard their own ng 45 For Consul Ogilby, moderates in the State House, Governor Hammond, and the Whiggish editors of the Charleston Courier all agreed that the Seamen Act needed revision. 46 These voices held powerful sway in S outh Carolina, but Consul Ogilby doubted the law would be amended unless this collection of Palmetto State politicos could operate without federal interference. Ogilby wrote to his superiors in London, And above all I most anxiously hope that your Lordsh ip has not thought it communication to the Federal Government connected with this matter; for, from what I know of the character of the people of this State, and of their extreme sen sibility in regard to everything relating to or arising from their slave institutions, I feel quite confident that any interference on the part of the General Government would not only not be productive or any good in obtaining redress, but might completel y frustrate my efforts for repeal of the law. 47 agreed to bypass fe deral diplomacy in the Jones fiasco in Charleston, it was in accord with 45 Message of the Governor of South Carolina November 30, 1843, reprinted in Correspondence 69;James Simons, In the Matter of James Jones, a British Colou reprinted in Correspondence 69 70; Ogilby to Earl of Aberdeen, December 8 1843, in Correspondence 68 69. 46 The editors of the Courier were in favor of modifying the seamen law, allowing sailors to remain aboard their vesse Though certain the seamen law that re manded sailors into custody was constitutional, the editors saw in its current The Courier article reprinted in Register December 2 1843. 47 Ogilby to Earl of Aberdeen, Decembe r 8, 1843, in Correspondence 68 69.

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242 current policy. The forum for redress would remain within the Palmetto State, or so at least the British Foreign Office believed. 48 Consul Ogilby exhibited a keen understanding of Sou th Carolina politics. Any political issue, no matter how mundane, could become flammable if combined with a reference to federal power. Because of the general mistrust of Carolinians in the 1840s regarding the ability of the federal government to weigh e venly competing regional interests, South Carolina politicos could manipulate any federal action into a rhetorical attack on their in state adversaries. Put another way, Ogilby understood that any news of federal activity on the Seamen Laws would predispo se South Carolina lawmakers to avoid liberalization of the quarantine. If Washington promised intervention, then any vote against the existing Seamen Law could be manipulated into a betrayal of South Carolina independence and sovereignty. With no federal action, Ogilby reasoned, opponents of moderation could not impugn proponents as unwitting federal drones or malevolent Judases. One had to look no further than Governor Hammond for proof. Hammond wanted to see an amendment to the Seamen Law, but his ded ication to Southern separation and his almost paranoid fear of federal motives made his suggestion of an amendment conditional, contingent on federal silence. Amending the law was good policy, but it could easily be sacrificed for larger, more important p olitical considerations. 49 was a report from the Chairman of the Committee on Federal Relations, Benjamin Hunt. Besides echoing the sentiments of Governor Hammond, Hunt argued that South Carolina, 48 Earl of Aberdeen to Pakenham, January 10, 1844, in Correspondence 70 71. 49 See Drew G. Faust, James Henry Hammond and the Old South: A Design for Mastery (Baton Rouge, La., 1988): 250 253.

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243 protection, and what police regulations were n ecessary. But if those regulations can at the same time meet the necessities of commerce, it was due to the com ity of nations so to adopt them. It was the opinion of our most elevated citizens deeply interested in the property and policy of the State, th at the Bill would effectually retain the sailors on board, was in conformity with the principle t hat the flag covers [of comity] yields to the inalienable right of self protection, still it is comity to observe as strict an analogy as practicable. 50 South Carolina Wh igs were attempting to accomplish what federal Whigs could not. But in South Carolina, Hunt and others were looking to alter the Seamen Acts as a matter of policy not constitutionality 51 And there arguments were partially convincing. And certainly, Hun vis the Seamen Act had changed incredibly since his staunch defense in Elkison v. Deliesseline back in 1823. In 1843, Hunt no longer saw the forced incarceration of black sailors as good policy. The immediate threat posed by the Vesey Conspiracy had evaporated in the intervening decades. South Carolina could afford to lower the guard somewhat, especially if that gesture would attract commercial development. Hunt, representing a Charleston district hit hard by financial distress, had every reason to dismantle any obstructions to trade. The economic setting of the early1840s was an ugly one for South Carolina in general. Anything tha t could be done to spur growth deserved serious consideration. However, though Hunt may have changed stance regarding the Seamen Act as policy, he never questioned his s of federal overtures to the contrary. 50 n Correspondence 71 74 51

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244 assembly. The State Senate killed the bill, but resolved to construct a separate jailhouse for incarcerated sailors, thus allowing th e true aim of the Seamen Act to be accomplished: the complete segregation of infected Atlantic sailors from domestic slaves. Though the ends were not what the British Consul and Col. Hunt wished, at least the South Carolina legislature had admitted that t While the end result of the 1843 legislative session did not procure the exact alterations sought by Great Britain (for sailors to remain on board) or Massachusetts (wholesale repeal o f the Seamen Act), Consul Ogilby considered the resolutions a good omen, a harbinger of future curtailments. 52 In fact, just two months later when the South Carolina Assembly came to a close, h an advance was made at the last session of the State Legislature towards a repeal of the objectionable law, that it will be so was convinced by his conversations rescission of the Seamen Act. Importantly, Ogilby also suggested to the Foreign Office that it continue to f the Seamen Laws in South Carolina would be forced to abandon attempts at alteration if federal officials intervened 52 Ogilby to Earl of Aberdeen, December 26, 1843, in Correspondence 74 75.

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245 Seamen Act contr oversy. The esteemed Foreign Secretary wanted to see if this localized diplomacy could succeed where formal centralized diplomacy had failed for two decades. conflict with Washington. 53 Unfortunately for the hopes of Ogilby, the Earl of Aberdeen, and all of the free black Instead, s t a t e o f f i c e r s i n B o s t o n still reeling at the South Carolina Assembly as evidence of recalcitrance. What motivated British diplomats to maintain the d to press forward and threaten federal judicial intervention. The Massachusetts Anti Slavery Society, for example, believed this slight modification did nothing to correct t he abuses affecting U.S. citizens. 54 Even more boisterously, the Liberator 53 Ogilby to Aberdeen, February 5, 1844; Pakenham to Abe rdeen, March 14 1844; Aberdeen to Pakenham, May 7, 1844, all in Correspondence 79 rights which British subjects are accustomed to claim and to enjoy in other parts of the civilized world, and at variance also with the spirit and intent of that stipulation in the Treaty between Great Britain and this country, by which it is agreed that t he inhabitants of the two countries shall enjoy freedom and security in their of natural law (in civilized countries) with an expansive reading of subject in the existing treaty with the United States. Despite his convictions, he knew of the futility of British diplomatic efforts to date and readily agreed to 54 Twelfth Annual Report Presented to the Massachusetts Anti Slavery Society (Boston, 1844): 8 10. Society unanimously adop ted the following resolutions, brought for by William Lloyd Garrison concerning the 1844 Election. The Whigs unanimously nominate Henry Clay; Democrats to nominate Van Buren or Calhoun, either

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246 proposition that sailors be permitted to remain aboard their vessel. Only complete rescission would appease the Garrisonians. 55 The Massachusetts legislature apparently agreed with the conclusions of the abolitionists; in another resolution, it re approp riated funds to procure new agents to conduct the war against the Seamen Laws. The new governor, George Briggs, must have learned from his predecessors errors, for he appointed two well respected Massachusetts attorneys to posts in Charleston and New Orle ans. 56 The eventual selection of Samuel Hoar for the Charleston post was much more astute than the first candidate, Benjamin Hunt. Hoar was a well aw of the Massachusetts Hoar of Concord, due not simply to his legal ability, but to the confidence the people had in his ked slavery, and as we shall see, sought to curb the institution through all constitutional means. He eventually left the Whig Party, objecting to both Zachary Taylor and Lewis Cass in the 1848 election. In 1855, when Hoar was in his seventies, he attend ed the convention that launched the Republican Party in the Bay State. As if his own accomplishments were not enough, Hoar also had the distinction of being wed to the youngest daughter of Roger Sherman, the Revolutionary hero and signer of the Articles o f Confederation, the Declaration of Independence, and the United States Constitution. 57 Henry Hammond, may have contributed to his appointment. Back in the 1830s, while both were 55 Liberator January 12, 1844. 56 Massachusetts (1845). 57 Frederick Gillett, George Frisbie Hoar (Boston, 1934): 3

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247 serving in Washington, Hammond had suffered a seizure while walking in the Capitol. Hoar, who had been strolling with Hammond, helped him to a doctor, where he fully recovered. Thereafter, Hammond always spoke fondly of his benefactor, although Charleston would not afford Hammond the opportunity to play the part of welcoming host. 58 retired attorney and increasingly disenchanted Whig must have wondere d about the potential reception awaiting him in South Carolina. Even without any direct knowledge of British diplomatic efforts in the Palmetto State, Hoar must have imagined the political fallout if and when his mission became public. South Carolina had long prided itself on its independent or defiant spirit, and citizenry. The Nullification Controversy and Mail Campaign are but two of many examples. And the recent rumors that South Carolina firebrands, including Hammond, sought a Southern convention to discuss the relative advantages of disunion may have caused the old Concord attorney to wonder about his prospects for success. from mainstream abolitionism would only abet his odds of success, and his mode rate views on slaver y contributed to his appointment. Obviously, any avowed abolitionist walking around downtown Charleston would never have a chance to pursue a test case against the Seamen Law because he would find himself in jail alongside the sailors or perhaps even at the end of a noose. Furthermore, if Massachusetts wanted to keep the issue of anti slavery and free African American citizenship separate, then pick ing agents without any antislavery credentials would aide that perception. If this mission could be depicted as bona fide remonstrance against specific constitutional violations, and not a backdoor attack on Southern 58 Faust, James Henry Hammond 181, 250 251.

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248 slavery, then perhaps moderate Souther ners might give Hoar their blessing. Yet, the Massachusetts legislature undermined this very separation and guaranteed that the Seamen Acts controversy would be seen as part of a larger antislavery initiative. In the spring of 1844, the Massachusetts Gen eral Court formally petitioned Congress and the individual states to consider a federal constitutional amendment that would officially annul the Three result spelled dread for Hoar and his mission; the Massachusetts legislature effecti vely rattled the test case at the precise moment when the South Carolina Assembly would read a proposed amendment to abolish the Three ing Southern representation in Congress and the Electoral College. The Massachusetts Assembly guaranteed that South Carolinians orchestrated, multifaceted, anti slavery agenda. If these circumstances did not damn Samuel Hoar from the outset, another entity also hometown of Concord, Ralph Waldo Emerson delivered a lengthy Firs t of August speech celebrating the tenth anniversary of British Emancipation. In case South Carolina did not make the obvious connection about the relationship between attacks on the Seamen Laws and the efforts of abolitionists in destroying the Three Fif explicit. His eloquent and inflammatory remarks deserve to be cited at length. Forgive me, fellow citizens, if I own to you, that in the last few days that my attention has been occupied with this history [of Britis h Emancipation], I have not been able to read a page of it without the most painful comparisons. Whilst I have read of England, I have thought of New England I see very poor, very ill clothed, very ignorant men, not surrounded by happy friends, to be p lain, poor black men of obscure employment as mariners, cooks, or stewards, in ships, yet citizens of this our Commonwealth of Massachusetts, freeborn as we, whom the slave laws of the States of South Carolina, Georgia, and Louisiana, have arrested i n the vessels in

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249 which they visited those ports, and shut up in jails so long as the vessel remained in port, with the stringent addition, that if the shipmaster fails to pay the costs of this official arrest, and the board in jail, these citizens are to b e sold of slaves, to pay that expense. This man, these men, I see, and no law to save them, Fellow citizens, this crime wil If such a damnable outrage can be committed on the person of a citizen with impunity, let the Govern or break the broad seal of the State; he bears the sword in vain. The Governor of Massachusetts is a trifler: the State house in Boston is a play house: The General Court is a dishonored body: if they make l I am no lawyer, an d cannot indicate the forms applicable to the case, but here is something which transcends all forms. Let the senators and representatives of the State, containing a population of a million freemen, go in a body before the Congress, and say, that they hav e a demand to make on them so imperative, that all functions of such demands! the Union is already at an end, when the first citizen of Massachusetts is thus outraged. Is it an union and covenant in which the State of Massachusetts agrees to be imprisoned, and the State of Carolina to imprison? ... L et the citizens i n their primary capacity take u p their cause say to the government of the State, and of the Union, that go vernment exists to defend the weak and the poor and the injured party; the rich and the strong can better take care of themselves. And as an omen and assurance of success, I point you the bright example which England set you, on this day, ten years ago. 59 British Emancipation required Northern men to demand an end to the Seamen Acts. The town of Concord would have been hard pressed to find a less courteous departing gift for its most As if the stage w In the case of The Cynosure 60 a black cook sued his captain over withheld wages during a recen t trip to New Orleans. When the vessel arrived in New Orleans, the cook was arrested and confined in jail until The Cynosure was set to leave the Crescent City. The captain, per to deduce the costs 59 Ralph Waldo Emerson, An Address Delivered in the Court House in Concord Massachusetts, on 1 st of August, 1844, on the Anniversary of the Emancipation of the Negroes in the British West Indies (Boston, 1844): 22 26. 60 8 F. Cas. 1102 (1844).

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250 the fees to be a personal expense, while cook claimed them to be the responsibility of the ship. The case was heard by Peleg Sprague, former federal Congressman and one term Senator from Maine. Sprague was a Whig who was appointed to the U.S. District Court of Massachusetts in 1841 and served for t here for over two decades. Before receiving his appointment, Sprague was offered a chairmanship at Harvard, which he declined. Amongst his most ardent admirers were Richard Dana, Jr., one of the finest attorneys in Boston (and the njamin R. Curtis, Supreme Court Justice. Both of these esteemed jurists commemorated Sprague on the occasion of his retirement. Incredibly well versed in maritime ue gave an impassioned speech about the atrocity of Indian Removal and the indignities of the Georgia state government. He believed slavery itself to be a moral evil and politically corrupt. However, he privileged above all else law and order, and so it should be no surprise that the more vocal abolitionists of Massachusetts did not care for this old sage of maritime law. During the Abolitionist Mail Campaign, for example, Sprague criticized abolitionists for using government functionaries to fuel contro versy. His criticisms irked William Lloyd Garrison, who described 61 Sprague was an abolitionist in the style of Salmon P. Chase, who sought a protracted, constitutional asphyxiation of slavery, not a quick deathblow outside the ch annels of existing institutions. 62 Slavery Society, he saw eye to eye with them in regards to the rights of black sailors. In ruling 61 William Lloyd Garrison (Philadelphia: George W. Jac obs Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (University Press of Kansas, 2007 ): 27. 62 See William Wiecek, The Sources of Antislavery Co nstitutionalism (Ithaca, N.Y., 1977).

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251 Cyno sure constitutional edifice of the Seamen Laws in dicta The statute referred to, prohibits free persons of color from coming into the state, as mariners on board any vessel, and requires them to be impris oned, and the master to give bonds to carry them out of the state, and compels him to pay the expenses of their imprisonment. A state cannot thus interfere with the navigation of the United States, nor dictate to the owners of an American vessel the compos ition of her crew. The only ground of disability [*2] is color. If one color may be excluded, any other may; -if dark complexions may be subject to prohibition, white may be equally so; -or both whites and blacks may be excluded; or any other physical quality, or religious or political opinion, may be selected as the criterion of exclusion, or admission. If the parties may be subjected to imprisonment, expenses and bonds, any other penalties and punishments may be inflicted. Such legislation is not con sistent with the regulations of commerce established by the laws of the United States, pursuant to authority expressly given by the constitution; and this statute is invalid of the provision of the constitution, with reference to the rights of citizens in other states. 63 so its precedence was not binding on other courts. Its interference with interstat e commerce was a citizen of any state. He is not, ther efore, in a position to invoke the protection of that clause of ordered McClure to reimburse the sailor for his garnished wages. 64 To make sure nothing is lost, Sa muel Hoar from Concord, a town celebrating the anniversary of British Emancipation by condemning the Seamen Acts, was heading to Charleston to initiate a test case against racial quarantines. He was set to arrive in a boat that 63 This block quote comes from two different recordings of the case. The first is the official record of the court in The Cynosure 8 F. Cas. 1102 (1844), at1103. The second source is Peleg W. Chandler, ed., The Law R eporter Volume 7, (Boston, 1845); 227 228. 64 The Cynosure 8 F. Cas. 1102 (1844) at 1103.

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252 may have also carried news Fifths Clause. That same boat may have also come with the news of the recent Cynosure decision, where a federal court (in dicta ) had just mentioned that the Seamen Laws were likely unconstit utional. And, of course, Consul Ogilby was eternally optimistic about the Seamen himself could not have created a situation so ripe for tragicomedy. Unsurprisin lived. He arrived in Charleston on November 28 and immediately sent word to the South Carolina Governor, his old acquaintance James Hammond, of his arrival and his official capacity. Hammond received th e communication less than a week after he assisted in submitting resolutions to Assembly calling for a Southern Convention, in hopes of forcing both parties and federal officials to take seriously ted States during debates over Texas 65 The morning after his arrival, Hoar went directly to work, attempting to make contact with report and begin litigation. The mayor was not in town, and Hoar decided to renew his efforts the following week when the mayor was scheduled to return. The following Monday, Hoar him at the lobby door. T he men were the Sheriff of Charleston, the acting mayor and a city alderman, and they requested a meeting with the Massachusetts emissary. Hoar obliged, and the 65 Bleser, Secret and Sacred 128 130.

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253 men quickly questioned his abolitionist credentials, to which Hoar honestly replied in the neg ative. After showing the men his official commission from the Massachusetts governor, the Massachusetts, to send an agent here on such business. This city is highly incensed. You are in undeterred even after the Sheriff produced a letter from the State Attorney General that begged the Sheriff to intervene to prevent a lynching. 66 Committee on Federal Relations declared, Massachusetts has seen fit to contest this right [of self preservation], and has sent an agent to reside in the midst of us, whose avowed object is to defeat a police regulation essential to our peace. This agent comes here, not a s a citizen of the United States, but as an emissary of a foreign Government hostile to our domestic institutions, and with the sole purpose of subvertin g our internal police. We should be insensible to every dictate of prudence if we consented to the residence of such a missionary, or shut our eyes to the consequences of his interference with our domestic concerns. 67 The General Assembly then approved res whose pr dangerous Atlantic that required quarantining, except that all white attorneys (unlike black reign 66 ted in 13 24. Reprinted in Register January 18, 1845. 67 Report of the Committee on Federal Relations upon the Communication of the Governor transmitting a Letter from Samuel Hoar, an Agent from the State of Massachusetts, 159 160. The Report was reprinted and sent to the Foreign Office. See Ogilby to Aberdeen, December 7, 1844, in Correspondence 82 84.

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254 persons of color are not citizens of the United States within the mea ning of the Constitution, either at the adoption of the Constitution 68 In this resolution, South Carolina joined Georgia in officially denying fede ral citizenship for all African Contract ing Parties theory. to execute his order. In case Hoar sought local legal counsel, Hammond also dispatched his Attorney General and one of his aides, Preston Brooks, to stymie any legal intervention. The historical record is silent on whether Brooks carried his infamous cane with him. Hammond 69 Hoar and reiterat encounters, and he contacted a friend, and they mapped a plan to expedite the litigation. He went f of two formerly incarcerated Bay State sailors. The Sheriff refused to give a statement, and Hoar left 68 Report of the Committee on Federal Relations upon the Communication of the Governor transmitting a Letter from Samuel Hoar, an Agent from the State of Massachusetts, 159 160. 69 entry for December 7, 1844, reprinted in Bleser, ed., Secret and Sacred 131 132.

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255 dismayed. On his return to the hotel, a random man on the street approached him and suggested he leave the city in all haste. Later that same aftern oon, another man, an elderly doctor who shared Boston acquaintances with Hoar, approached the emissary and told him of his The doctor had just come from the city council and informed Hoar, ent; that the people were assembled and assembling in The doctor told Hoar where to fetch a carriage and offered his plantation, some miles outside the city, as a temporary refuge. The weather would prevent his immediate de parture, but the doctor suggested a tavern where he could spend the night and then flee the city the following morning. 70 Even this threat of imminent violence did not deter Hoar, or so he claimed. The following day, three men, including two attorneys an d a bank president, met with Hoar and demanded he leave the city. The men told Hoar that in the next two hours, a pair of men (probably Attorney conduct [him] or escort heading out of the meant business. He prepared for his departure, but his escorts never appeared. Apparently, a problem arose aboard the vessel destined to remove the Northern attorney from the Palmetto State. The next day, the old doctor returned and told Hoar that the hotelier had requested the Hoar believed the old doctor and resolved to leave the hotel. As he packed and debated the next course, a waiter approached and informed him of a group of men waiting for him outside the hotel 70 (Boston): 13 24. Reprinted in January 18, 1845.

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256 hotel, the attorneys from t he previous day, accompanied by a flock of carriages awaited him. Hoar asked if he was being forced out of the city, to which the attorney replied that they had no the settle which was, whether I should walk to a carriage or be things, boarded the carriage, and was taken to the wharf and placed aboard a northbound vessel. The Hoar fiasco caused much ink to be spilt by the Massachusetts Anti Slavery Society, nearly beyond belief, and their (feigned?) surprise lends credence to their characterization in Sout Hoar did not at least remain until the intentions of his visitors were put beyond question, by some overt act. It was not necessary to have been dragged through the streets, but that it should have matter stands, t he Charleston party have a color, at least, for their statement that he left without he Society even went so far as to ridicule the doughfaced reaction s on the part of state authorities in Massachusett s. Her Governor and Legislature have just solemnly sworn to support the Constitution lawyers and manned by ploughmen and artisans, against Charleston, as she did a century ag o against Louisburgh? Oh, no! That would be a violation of the Constitution! Shall she pass retaliatory laws and subject every citizen of South Carolina, coming into Massachusetts, to the treatment she administers to our

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257 colored seamen? No, indeed! The Constitution would forbid such measures! Shall she seize upon any South Carolinian whom she may find within her limits, and expel him as an offset to the treatment Mr. Hoar received? Alas, that, too, would be an infringement of the Glorious Constitution Men say, and say truly, because South Carolina does a wrong, shall we do one too? Because she breaks her oath, shall we perjure ourselves? And so nothing remains for poor insulted Massachusetts but to pass preambles and resolutions, which Carolina reg ards as so much idle wind. There is nothing for Massachusetts to do, as long as she consents 71 Though speak. The Society contacted Hoar, hoping the recent exile from Charleston wo uld describe his to have awakened the fears and created apprehension the most serious, among a large portion of the Northern people, who have heretofore stood aloof from this question, and have generally slaveholding States. A more correct view of this subject seems now to pervade the public mind, and it is more generally fel t and acknowledged, that nay vital error or disease in one part of the 72 Hoar denied the d id not want anyone to impart on him a new found sense of zealotry on the subject. 73 Massachusetts Governor Briggs had hired to initiate a test case in New Orleans. After ar riving in 71 Thirteenth Annual Report Presented to the Massachusetts Anti Slavery Society (Boston, 1845): 40 45. 72 Francis Jackson to Samuel Hoar, January 17, 1845, reprinted in Thirteenth Annual Report of the Massachusetts Anti Slavery Society (Boston, 1845): 72 73. 73 Hoar to Jackson, January 20, 1845, reprinted in Thirtee nth Annual Report of the Massachusetts Anti Slavery Society (Boston, 1845): 73 74.

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258 the Crescent City, Hubbard received word from the Louisiana Governor that his arrival in the state was unwelcomed, that his mere presence smacked of aggressive abolitionism, and that, to initiate litigation and bring th e new Louisiana Seamen Law under federal judicial scrutiny, but traveler, Captain Bos siere from New York, nd if you stay here another night your life life was ever truly at risk, he actually felt otherwise and readily obliged the wishes of his supposed protectors and aff Consequently Hubbard resigned his commission. 74 The Massachusetts legislature, notwithstanding the aspersions of the state antislavery society, issued a stern rebuke i 74 February 22, 1844. Correspondence between Louisiana Governor Mouton and Hubbard reprinted in Journal of the Senate of the State of Louisiana (1845): 5 6.

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259 nineteen 75 In its tone, its position vis vis the Constitution, its ringing endorsement of self defense, and its denunciation of unprovoked aggression by other states, t Robert B. Rhett, A.P. Butler or any other dubious celebrities of 1860. According to the Declaration, the Seamen Act eparation of the were bound by something more than international comity, they were linked by the Constitution, which provided federal courts to resolve conflicts between the states to prevent armed conflict. The recent Hoar fiasco proved, howe complian 76 The Massachusetts legislature was not necessarily advocating disunion, however, but insisting th at South Carolina and Louisiana bend to the dictates of the Constitution. The variance between North and South concerning the Seamen Acts ought to be decided in the federal courts, 75 Slavery Society. It similarly lambasted Louisiana as it had South Carolina for its inhospitable treatment towards one of the M a s s a c h u s e t t obstructed in their honest avocations, and have suffered imprisonment and outrage for no crime, but their complexion; it is probably that some have b een consigned to a life long servitude. By uniting their atrocities of black citizens with white, the Society presumed that the Southern States had become so comfortable in their partially the South bestows its injuries, the less distinction it makes in the distribution of its wrongs, between the white and the black, the bond and the free, the more hope is there that an adequate spirit of resistance may be roused which shall end th Fourteenth Annual Report Presented to the Massachusetts Anti Slavery Society (Boston, 1846): 21 22. 76 633 636.

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260 and the recent evictions of Hoar and Hubbard effectively eliminated the ve ry venue that the Framers constructed to resolve interstate problems. For Massachusetts lawmakers, the reason for utterly incompatible with the Constitution, a nd the federal courts were bound to rule against Parties theory of citizenship, recently adopted by South Carolina and Georgia, could deny the fact that Massachusetts had citizens of color. When Massachus done so by the citizens of Massachusetts, black and white. Thus, black Massachuse ttians were rather, the legislature acknowledged the rights of the states to determine their own citizenry. And the Privileges and Immunities Clause obligated every state to honor the designations immunities of citizens within [Mass 77 This Declaration from the Massachusetts legislature anticipated the cold reception of Dred Scott a decade later. B o s t o n Parties theory, but even if they did, Massachusetts history prove d that black citizens of Massachusetts were constituent members of the United States Constitution. 77 633 636. The Massachusetts Anti Slaver y Society was correct, though. The state government limited their retaliation to a declaration.

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261 78 And was it not for the escalation of the Texas question, the ramifications may have been more extensive. Nonetheless, cting Parties theory in explicitly denying African for the enactment of these laws, as she would have pestilence which may arise from a ship, the crew of which may be laborin g under an infectiou s exercise this power [of quarantine] is higher than the Constitution 79 Louisiana passed similar resolutions outlawing test cases on behalf of free black sailors 80 are not aggressions upon the right of Massachusetts, or those of any other State, but purely a 81 Mississippi and Georgia also joined the chorus in defending the evictions. 82 78 For example, see The Southern Quarterly Review April 1845 and the ran several stories between December 1844 and February 1845, ofte n citing articles from regional papers. 79 Report of the Committee on Federal Relations, January 27, 1845, Acts of Alabama, 1845 211 214. Emphasis in original. 80 Acts of Louisiana, 1845 79 80. 81 Acts of Florida, 1845 54 82 1846 Chapter 293; Resolutions of Georgia (1846): 206 207.

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262 The fantastic stories of Hoar and Hubbard only solidified Congre ssional resolve to avoid Washington, Representative John Giddings presented the House with a petition requesting Congress to intervene against racial quarantines. The petition was sent to the Judiciary Committee, where it died. Later that year, Resolutions passed by the Massachusetts Legislature demanding Congressional interference were read before the federal House and then summarily laid on the table, where they remained. A month later, in January, 1846, Resolutions from the Georgia Legislature were similarly read before the House. The Resolutions harangued Massachusetts for sending agents into the South simply to bring their police laws under the purview of the federal government. Like the Resolutions from Massachusetts, the Georgia Resolutions were also quickly tabled. 83 was a fait accompli and further debate would only worsen the regional rift. With the Texas and Oregon questions demanding political sophistication with respect to regional sensitivities, further consideration of the Seamen Acts would be utterly counterproductive. Massive Southern resistance and Congressional apathy to the Hubbard and Hoar excursions was to be expected, as Consul Ogilby had foreseen. Though he did not want federal and destroyed all hopes for any formal relaxation of the racia the scenario. Ogilby watched as his masterpiece of diplomacy unraveled. In a letter to London, which, I regret to say, have deprived me of all hope of any change being made in the law, unless 83 Journal of the House January 27, 1845; House Document 34 29 Cong., 1 sess., (1845); House Document 87 29 Cong., 1 sess. (1846).

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263 indeed it is to make it more oppressive in its operation, and to cause it to be more rigidly in their designs against the Seamen laws. 84 As the Seamen Acts saga proceeded into the late 1840s and into the 1850s, the question of black citizenship and federa l power would continue to divide the various commentators on racial quarantines. Abolitionists accelerated their press coverage of incarcerated sailors, incensing de cided The Passenger Cases in 1849, and in the aftermath, the Commerce Clause re emerged as a potential judicial weapon against the Seamen Laws. Furthermore, the Whigs in Britain resumed power, and Lord Palmerston refocused the Foreign Office on aggressive ly pursuing an end to the incarceration of British sailors. French Emancipation precipitated official French protests against racial quarantining. On the domestic front, the expansion of slavery into the territories coincided with prolonged arguments abo ut the Seamen Acts. Thus, the last chapter of 84 Ogilby to Aberdeen, December 7, 1844, in Correspondence 82 83.

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264 CHAPTER 9 A SERIES OF ANTICLIMAXES: THE DEATH AND RESURRECTION OF THE SEAMEN LAWS, 1847 1859 As has been the case of the entire ten plus years preceding secession, this trend did not change. In fact, the 1850s highlight with i mmense illumination the interplay of these forces on the predicament of black sailors entering the port cities in the Southern United States. The rocky history of British metropolitan politics translated into a schizophrenic diplomatic agenda regarding ra cial quarantines. Teetering between forceful jostling with federal officials and covertly courting state lawmakers, British authorities eventually catered to Southern sympathies during this period, even going so far as to withdraw from the Supreme Court d commentators agreed that with the recent decision in The Passenger Cases the Supreme Court might strike down the law. Even formal protests from the French National Assembly did not translate into a more rigid British position. In Washington, Congress learned its lesson from 1844. Time and again thereafter, it refused to engage the Seamen Acts. Despite the efforts of some Whig Senators to include protections of black sailors in the revised Fugitive Slave Bill in 1850, Congress did not legislate on race quarantines. Again, the disagreements over black citizenship prevented any sort of compromise. The abolitionist press and mainstream Northern newspapers paid increasing attention to the Seamen Acts debates, and the actions of British and federal officials became part of the larger national political discourse. In 1852, the Free Soil Party included in its platform an attack on the Seamen Laws. But the mainstream parties in 1852 refrained from inte rfering. In utter acts of anticlimax, British conciliation and federal noninterference eventually persuaded Southern lawmakers to question the necessity of their restrictive laws. Georgia and

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265 Louisiana, at the gentle chiding of British Consuls, agreed t o allow black sailors to remain aboard their vessels while in port, only arresting those who came ashore without explicit permission from municipal authorities. This modification earned the approbation of moderate British officials, though more radical po liticos and outspoken abolitionists demanded full repeal. Eventually, even South Carolina yielded, liberalizing its law in 1856. This accomplishment was over thirty years in the making, but it did not mark the final chapter of the Seamen Acts controversy The new Republican Party decried the laws, even after modifications, and the Texas legislature enacted its first seamen restrictions in 1856. More importantly, the Taney Court handed down Dred Scott the next year, legitimating the position staked out b y defenders of the Seamen Acts since 1832. Then, as a paramount exercise in anticlimax, Louisiana reinstituted its harsh Seamen Law in 1859, animating Dred Scott 1 A fter a brief hiatus, the Whigs reassumed control of Parliament in February 1846. The repeal of the Corn Laws had brought down the Peel Ministry and ended the tenure of the Earl of had nearly succeeded in convincing the state to liberalize its restrictions. Only the untimely success. Under the Tories, British policy avoided direct contact with federal agencies and refrained from engaging state officials through formal channels. Additionally, the Tories did not press for outright repeal, choosing instead to seek amendments that would keep British subjects out of jail. 2 Aberd who was also his predecessor Lord Palmerston preferred 1 Dred Scott v. Sandford 60 U.S. 393 (1857), at 407. 2 enham to Aberdeen, March 14, 1844, in

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266 direct engagement with both federal and state authorities during his previous tenure. Would Palmerston continue his old policy before the Tory interruption, or would he continue Ab Within six months of his appointment, Palmerston had revealed his desire to resume for mal protests. Just two years b e f o r e advisors, the 1815 Treaty had a debilitating clause that protected racial quarantines. Liberty of 3 eign Office, this position was ridiculous; so he sent a Commerci al Convention was to secure liberty in trade; the entire document must be understood in this light. No portion of the Treaty could destroy its raison d`tre called debilitating pro viso would be able to words, the Treaty cannot contain a clause that would make the entire Treaty meaningless. If the ned, South Carolina could quarantine away all the liberties supposedly protected by the Treaty. For the sake of internal safety, could South Carolina prevent the introduction of all British sailors? Obviously not. South Carolina was criminalizing behavi or expressly permitted by the Treaty. The Crown, Palmerston argued, Correspondence relative to the Prohibition against the Admission of Free Persons of Colour into certain Ports of the United States, 1823 1851 Series 5, Volume 579, Foreign Office Papers Public Records Office, London (hereafter referred to as Correspondence ); 80 81. 3 December 29, 1843, all in Correspondence 61 71.

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267 should alter its position. 4 replied, he conceded his previous misreading of the Treaty. Palmerston was correct; the Seame n Laws violated rights specifically protected by commercial agreements between the United States and Great Britain. Consequently, the Foreign Office had every right to demand compensation and repeal. 5 lmerston hailed U.S. Secretary of State James Buchanan in January, 1847. Invoking the poor treatment of William Forster the Bahamian born sailor enslaved by Florida in 1835 the Foreign Secretary demanded immediate federal intervention in every state c urrently imprisoning British mariners. The Polk Administration was not going to welcome this sudden shift in tactics. Since 1844, the federal government had enjoyed British silence on the Seamen issues, as it coordinated with Congressional dedication to noninterference. Now, with the Maine and Oregon border disputes resolved, and with Texas safely a part of the Union, now uppity Whigs in Parliament were going to pressure the federal government, and on so controversial a subject as the Seamen Laws? Secre tary of State Buchanan, apparently in preparation for his colossal commitment to apathy in diplomats in Washington, however, Buchanan revealed his position. Accor ding to one British agent, Buchanan indicated that the federal government would sooner annul all commercial treaties with Britain before confronting the South on the Seamen Acts. If the federal government actively engaged Southern lawmakers, Buchanan reas oned, the Union would crumble. No treaty 4 Addington to Dodson, October 7, 1846, in Correspon dence 94 95. 5 Dodson to Palmerston, December 26, 1846, in Correspondence 99 100.

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268 suggested Southern legislatures as more appropriate venues for attack. 6 The Foreign Office agreed, but did not yet gi ve up hope for federal intervention. 7 Luckily for Palmerston, enforcers of the Alabama Seamen Act abetted his agenda. The law went into effect in 1842, in the immediate aftermath of the Creole incident and in synchronization with the Louisiana Seamen La w. British authorities in Mobile took little notice of the new quarantine. British vessels were not uncommon in Mobile, so the lack of consular noise was likely a result of intermittent enforcement or even an unflinching acceptance of f disengagement. But in January, 1848, the attempted rape of a black stewardess would supply British diplomats with the first successful foray against racial quarantines since 1831. The bedlam began when the British ship Queen entered Mobile Bay, and Jam es Banks and Mary Roberts were hauled off to jail in accordance to the Seamen Statute. 8 According to t he alleged the jailor called her into his office on the fourth day of her confinement. am not in the habit o you to sit down, for [I] want to marry you for a little wh do not wish to sit down, nor do I wish to be married; for when I marry, it shall be 6 Pakenham to Palmerston, March 29, 1847, in Correspondence 105 106. 7 Palmerston to Pakenham, April 19, 1847, in Correspondence 112. 8 The description is British Consul Correspondence 112 115.

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269 etired to the door, (me aning herself and other free coloured persons) were put in gaol for the use of the gaol Roberts was able to escape the room, as the door had fortunately been left ajar. When she relayed the incident to her cellmate, a young slave named Charity, Roberts then informed her captain, who intervened immediately. The jailor denied any criminal activity, but admitted he had acted l stewardess. 9 Upon hearing of the incident, Palmerston immediately instructed the Consul in Mobile and parallel in 10 He also confronted the U.S. Minister to s c r a p p i n g the treaty before attacking the Seamen Acts, Palmerston informed Bancroft that h is government, too, was willing to sacrifice the benefits of trade on the issue of racial quarantines. Why have a 11 If U.S. diplomats w anted to play hardball, Palmerston was up to the challenge. But in Washington, this rigid stance led only to dead ends. Buchanan was even less interested in taking up the cause now, in the summer of 1848, for he had intentions on the White 9 The Deposition of Mary Frances Roberts was enclosed in Grigg to Palmerston, January 25, 1848 in Correspondence 112 harity refused to corroborate the comments attributed to her. Grigg was convinced she had been threatened, but admitted that her testimony was useless in a criminal charge against the jailor. 10 Palmerston to Crampton, February 25, 1848, in Correspondence 113 114. 11 Palmerston to Bancroft, February 25, 1848, in Correspondence 114 115.

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270 House in the u pcoming election and could ill afford a conflict. 12 As for a writ of habeas corpus instituted in federal court, it would prove ineffective, as the sailors were in state custody. 13 Despite the futility of federal interventions, local efforts were quite succ essful. On March 6, 1848, just weeks after British officials began their diplomatic defense of Mary Roberts, the Alabama legislature amended their law to allow free people of color to remain aboard their vessels. 14 For decades, demands for recognition of British subjects fell on deaf ears in the Slave South. But other discursive weapons were available and proved effective. The attack of a defenseless woman, whether white or black, was a gross violation of Victorian gender norms, both in Britain and in t he United States. This was certainly the case in the Old South, where the patriarchal structure undergirded both gender norms and slavery. The jailor, a white man in a position of power, had violated his authority and bowed to his animal passions. But t he jailor also violated prevailing racial norms, exacerbating his transgression. Interracial sex was taboo, at least in theory, and accusations of intimate relations, even if consensual, nonetheless if coerced, would have earned the scorn of the community With accusations of rape against a white authority figure, Mary Roberts had altered the grounds of protest. This effrontery was a contours of British subject hood. In terms of rhetorical power, the adoration of female chastity and the impropriety of miscegenation overwhelmed the routine and monotonic declarations of British subjecthood rights. This was not about treaty rights or the origins of citizenship; thi s was 12 Crampton to Palmerston, February 9, 1848 and March 23, 1848, in Correspondence 115, 120. 13 Crampton to Grigg February 29, 1848, in Correspondence 115. This was the same technicality that prevented Justice William Johnson from freeing Henry Elkison from custody in South Carolina in 1823. See Chapter 3. 14 Nicolas to Palmerston, May 25, 1848, in Correspondence 122 123. Acts of Alabama (1848): 130 131.

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271 an attempted rape of a young woman by an agent of the state of Alabama. British ministers, themselves white protectors in this instance, were obligated to demand official intervention. Alabama lawmakers conceded. In the end, it was the protection of female chastity that initiated and their male counterparts If British diplomats found the 1848 news from Mobile reason for optimism, the recent and impending decisions of the Supreme Court would have given them even more reason to believe that the end of the Seamen Acts was near. Ever since New York v. Miln in 1837, the Court allowed the states to limit the introduction of people into their jurisdictions. For those who hoped to attack the Seamen Laws with the blade of the Commerce Clause, the Miln decision effectively placed a sheath, a sheath of state police power, around the Commerce Clause blade. Ho wever, in 1847, the Court contemplated a reinscription of the boundary between state police power and federal commercial authority. Then, in 1849, the Court limited the power of the states to restrict the entrance of interstate and international travelers The decision in The Passenger Cases suggested that the Seamen Acts might not survive a Supreme Court case. In the midst of the Market Revolution and in response to the Second Great Awakening, moral crusaders attempted to perfect society in preparation for the Millennium. These advocates sought to cure the insane, rehabilitate the prostitute, free the slave, preserve the Sabbath, Americanize the immigrant, and dry out the drunkard. When moral suasion failed, reformers looked to the power of the law to effectuate their agendas, especially in their attempts to minimize the pernicious effects of alcohol. In many states, legislatures mandated licenses to sell liquors or imposed taxes on the distribution of alcohol. While many Americans undoubtedly opposed outright prohibition, few saw constitutional problems with state assemblies protecting

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27 2 the health and welfare of society by restricting when and how liquor could be purchased. But as valued as moderation became in the ascending ethos of American reformis m, the rights to and in so doing, forced the Court to revisit the wildly unstable constitutional partition between police and commercial regulatory authority. In each of the three suits that comprised The License Cases the plaintiffs claimed state laws violated particular constitutional protections, specifically the exclusive ability to regulate interstate and international commerce. Liquor purveyors in Massac husetts, Rhode Island, and New Hampshire demanded that state regulations passed to protect the safety and welfare of citizens could not limit their interstate and international trading activities. The Court was lost on how to respond. In total, the Court published nine opinions. Chief Justice Taney, Justice Daniel, and Justice Grier each wrote one opinion for all three cases, and all three defended state police the state laws in question were commercial in nature, and then only to show that they would still withstand constitutional scrutiny. Justice McLean 15 wrote three separate opinions for each of the cases, wrestling with the impact of federal intrusion into s tate police laws. He denied concurrent commercial authority, and could only justify the laws on police powers grounds. Justice Catron wrote two opinions and completely disagreed with McLean. He denied that state police laws could hedge federal commercia l authority. Instead, he insisted that the liquor laws were commercial laws, and since the federal government had not yet legislated, then concurrent 15 Justice McLean wa plus years on the Bench. By 1849, McLean had abandoned the Party of his nominator and aligned himself (both politically and constitutionally) with the Whigs and Free Soilers. See Melvin Urofsky, The Supreme Court Justices: A Biographical Dictionary (New York, 1994).

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273 commercial authority allowed the states to pass laws until Congress intervened. 16 Taken together, the var ious opinions revealed a wide range of opinions about the interface between federal and state powers. The inconclusive findings of the Court suggested that future suits would soon matriculate up the appeals ladder. Just two years later, in 1849, the Cou rt heard The Passenger Cases Both New York and Massachusetts had statutes on their books that mandated shipmasters to pay fees or bonds for their passengers with most of the revenue to support the indigent. Under Miln the Court had allowed a similar la w to stand as an appropriate exercise of police power. In fact, the Massachusetts law passed the legislature just months after Miln came down. When two British shipmasters refused to pay the required fees, they were sued by the appropriate state authorit ies. Both of the state courts, following Miln upheld the statutes, and the Supreme Court heard the two cases together. While not quite as jumbled as The License Cases The Passenger Cases confounded the High Court, eliciting opinions from eight differen t Justices. Though for very different reasons, the five to four majority struck down the state laws. 17 For soldiers in the Seamen Act war, a couple of the opinions were incredibly noteworthy. Justice McLean, proclaiming the states impotent to regulate com merce even in Congressional silence, had only one question to answer in making his decision. Were the 16 The License Cases 46 U.S. 504 (1847). On the relevance of decision on the Seamen Acts, consider the following Paupers and convicts are refused admission into the country. All these things are done not from any power which the states assume to regulate commerce or to interfere with the regulations of Congress, but because police laws for the preservation of health, prevention of crime, and protection of the public welfare must of necessity have full and free operation according to the exigency wh ich requires their interference, Ibid has, under the legitimate power of the federal government to regulate foreign commerce, purchased the right to import, or int roduce his merchandise -the right to come in with it in quest of a The License Cases 46 U.S. 504 (1847), at 616. 17 The Passenger Cases 48 U.S. 283 (1849).

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274 line clearly, because, perhaps, no one can draw it, betwee n the commercial power of the Union s against diseases and paupers, the municipal power of a state cannot ic, idiot, paupers. But since the statute also taxed all alien passengers, McLean considered it a commercial law, and deemed it unconstitutional. 18 Justice James Wa yne, 19 in one of the most complicated opinions of the antebellum period, agreed that state police laws could not tax articles of interstate and international commerce in contravention of federal law or treaty. In language that eerily resembled the Anglo Am erican ch of the laws of a state as would exclude constitutional obligations of Wayne quickly defended the Seamen Acts, stating that the Constitution did not protect free people of color headed South because the Southern states would not have endorsed the 18 48 U.S. 283, at 402 (1849), at 406,410. 19 Justice Wayne w as appointed by Andrew Jackson in 1835. He opposed the Bank of the United States and federally funded internal improvements, but was an early advocate of free trade and an ardent nationalist.

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275 Constitution in 1789 if such protections were attached. 20 This vague reference to the implicit P arties theory. 21 This apparent change in Court doctrine, as meandering and inconclusive as it may have been, had the potential of undermining the constitutional edifice on which the Seamen Act e Seamen Acts had a sporting chance of being struck down. In the near future, British diplomats would seek this route, but not before making representations to the new Whig Administration. Unfortunately, the new Taylor Administration was not better in 18 50 than the Democrats had been in 1848. Much like Secretary of State James Buchanan who threatened an end of Anglo American trade rather than interpose in the Seamen Acts, the new Secretary, John Clayton, admitted he had no power to force individual state s to allow the ingress of black Britons, even if a treaty explicitly guaranteed their entry. 22 The Seamen Acts were poisonous fruit for nationally elected officials. Any position taken on this issue would have far reaching consequences come election time. However, members of the Congress did not have to worry about appeasing a national constituency. And thanks to the multitude of contentious issues facing Congress in 1850, diehard opponents of the Seamen Laws found numerous instances in which to propose 20 48 U.S. 283 (1849), at 426 429. Justice Grier, who also conc urred in the judgment, also defended the right of the Constitutional, but ultra self defense, which no power The Passenger Cases could be limited to avoid destruction of the Seamen Acts. 21 Unsurprisingly, Chief Justice Taney dissented in the case. 22 Secretary of State John Clayton declared hims elf powerless to force any Southern State to halt their imprisonment of free black sailors, even if those arrests were in contravention of treaties with foreign countries See The Black Worker: A Documentary History from Colonial Times to the Present: Vol ume 1 Philip S. Foner and Ronald Lewis, The Journ al of Negro History 43 (October 1958): 271 272.

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276 legislation to end racial quarantines. And the recent activity of the Supreme Court indicated that federal legislation protecting black sailors would destroy concurrency and might withstand judicial scrutiny. The most conspicuous discussion of the Seamen Acts during the 1850 Congress was during the debates on the Fugitive Slave Act. On August 23, Whig Senator John Davis 23 of Massachusetts introduced an amendment to the Fugitive Slave Bill that would certainly make it more palatable to his Massachusetts con stituents. The proposal read, That if any mariner or other free colored person arriving on board of any vessel in any port or place in the United States shall be imprisoned or deprived of his liberty without any alleged crime or offence against law, it sh all in all such cases be the duty of the District Attorney of the United States within and for the district where such imprisonment or detention may occur, to cause any such person so imprisoned or detained to be brought by writ of habeas corpus before the circuit or district judge of such district, and it shall be the duty of the judge before whom any such person is brought, to inquire into and decide whether such imprisonment or detention is lawful, and if he find the same to be unlawful, he shall thereup on discharge from custody any such person. In support of his amendment, Davis recounted the sensational Hoar Affair, even going so far as Carolina Assembly, which author for his current amendment, Davis explained, was to counteract a South Carolina law that constitutionality] sett and nothing else, and that is, to submit this question to the tribunal which the cons titution has 23 Perhaps not coincidentally, Davis was married to Eliza Bancroft, whose brother, George, was the U.S. Minister in rape in 1848.

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277 Passenger Cases Supreme Court. 24 South Carolina Senator A.P Butler took exception to the Davis Amendment. Besides being unrelated to the Fugitive Sl ave Bill, the Amendment sought to create black citizens in Hoar Affair, Butler remembered it very differently. Hoar was politely asked to leave Charleston, an proceeding. The question of citizenship was easily answered, and no resort t o federal court was I do not say that a person of this character [free person of color] so long as he confines himself to the State that chooses to confer on him these privileges, may not enjoy the complete rights and immunities of a citizen there, but I do deny the proposition that it is in the power of any one State to confer upon them the right to enjoy those privileges in any State where the laws forbid it, or where a status of that description is unknown. Amendment had better prevent a prolonged debate on the Davis Amendment, for it became attached to the Fugitive Slave Bill, the South would lose its Fugitive Slave Bill in the same breath that lost who had just taken over the Senate seat of Daniel Webster (who just became Se cretary of State), was not new to the Seamen Acts debate. He was the very man who chaired the 1842 House 24 Proceedings of the United States Senate, on the fugitive slave bill, the abolition of the slave trade in the District of Columbia, and the imprisonment of free colored seamen in the southern ports: with speeches of Messrs. Davis Winthr op and others (Washington, D.C., 1850).

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278 Commerce Committee that reported on the Seamen Laws. In his report, he found the laws to be a blatant violation of the Privileges and Immunities Clau se, though the rest of the House ended up tabling his resolutions to preempt Southern racial quarantines. 25 Perhaps remembering the cold reception of his House report eight years prior, Winthrop altered his approach. Much like the Mary Roberts fiasco, Win throp attempted to move the locus of the debates away from W hich we desire to have settled. The question is, whether, upon the ground of police regulation, or upon any ground, the States of South Carolina, Alabama, Louisiana, and Florida shall have the right to take the stewards and mariners out of our vessels, and imprison them, and even sell them into slavery for life, for no other crime than their color. It matters little to thi s issue whether they are citizens or not have entered into articles of agreement, with the master of the vessel on board of which they are shipped, to perform service and l abor of a certain sort, during the voyage. Under these Southern laws, they are taken out of the vessel in which they ask is, that the constitutionality of such a statute shou ld be solemnly adjudicated by some competent and disinterested tribunal. 26 In framing the Amendment in these terms, Winthrop hoped to equate the plight of shipmasters deprived of their sailors to the plight of slaveowners deprived of their slaves. Along t hese lines, the Amendment fit in perfectly with the Fugitive Slave Law, and it did so without treading in any way on the polarizing issue of black citizenship. allowed the mselves to be pulled into a larger debate over citizenship and slavery, a debate they had no chance of winning, at least on the floor of the Senate. Senator Roger S. Baldwin, for example, pressed the issue about a free black who had been enslaved in South Carolina, and the 25 See Chapter 8. 26 Proceedings of the United States Senate, on the fugitive slave bill, the abolition of the slave trade in the District of Columbia, and the imprisonment of free colored seamen in the southern p orts: with speeches of Messrs. Davis Winthrop and others (Washingto n, D.C., 1850).

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279 questions of judicial cognizance and rights of shipmasters were subsumed under the speculation 27 When it came to vote, the Davis Amendment was effectively killed by a coalition of Southerners and Northern Democrats, the same coalition that saw through the revised Fugitive Slave Law. recounted here. But part of the uproar emanated from feelings of Southern hypocrisy. Southern slaveowners now possessed a streamlined judicial process by which to retrieve their human bondage while black citizens of Northern states had no judicial relief for their incarceration in South Carolina, Florida, Louisiana, and Mississippi. 28 One of the most outspoken critics of this perceived duplicity was Lewis Tappan. In a speech he later had published in pamphlet form, Tappan proclaimed, It is not enough th at it [the South] seizes our Northern seamen in Southern ports, and sells them into slavery not enough that it denies us the benefit of the laws, and mobs us when we go there to bring the cases of our enslaved and persecuted citizens before the courts but with unaccountable insolence, it enacts that we shall id by those who basely submit to the violation of the Constitution by South Carolina, imprisoning our colored seamen, citizens of compromises of the Constitution are trampled u pon at the North, and Daniel Webster and his retainers insist we owe it to the South to seize and deliver up fugitive slaves, while the South utterly refuses to relinquish the practice of 27 Proceedings of the United States Senate, on the fugitive slave bill, the abolition of the slave trade in the District of Columbia, and the imprisonment of free colore d seamen in the southern ports: with speeches of Messrs. Davis Winthrop and others (Washington, D.C., 1850); The Sun (Pittsfield, MA) August 29, 1850 reported on the defeat on the Davis Amendment. 28 See, for example the editorial in the National Era (Washi ngton, D.C.): May 5, 1851 and (Amherst, NH), October 22, 1851. The Georgia and Alabama variants did not mandate imprisonment unless the seamen broke quarantine.

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280 imprisoning and selling into perpetual slavery, to pay for jail fees the black seamen of the free states! 29 Tappan and some of his fellow abolitionists in the United States lambasted the federal government for its adherence to a Constitution devoid of the principles of equality and justice. 30 If some antislavery groups in the United States were disgusted by the recent compromises secured by Webster and Clay in 1850, they found hope in some of the gestures of foreign administrations. Abolitionist publication routinely chimed in with stories and editorials about foreign engag ement with the Seamen Acts. 31 Perhaps the most interesting article came out of the May 30, 1850 issue of the North Star Recounting a conversation in Britain about the atrocity of racial quarantines, the editorial lampooned, I learn from your recent artic le upon the subject that it is the custom in Charleston, U.S., to seize upon the person of every British negro who may chance to arrive there in a British vessel, and to remove him from his ship to jail, where he is kept so long as it remains in the harbor Thus his employer loses his services, and the man himself loses his wages, besides being made (without having committed any offence) to lie in a jail, and to pray for his maintenance whilst there. All the Americans condescend to say about the matter is, "If you don't like the custom, argue with them on black subjects, and I would, therefore, suggest that we should, in retaliation, commit to Bridewell, every red haired A merican, the moment he all we have to answer is "if you don't like the custom, don't bring your carroty countrymen to Liverpool." If British tongue in cheek humor was not enou gh, abolitionists could also look to the new French Republic for optimism. French Emancipation had inspired a new, aggressive stance by 29 Lewis Tappan, The Fugitive Slave Bill: Its History and Unconstitution ality, with an Account of the Seizure and Enslavement of James Hamlet, and His Subsequent Restoration to Liberty 3 ed. (New York, 1850): 28 33. 30 Abolitionists were of two minds about the relationship between the Constitution and the Seamen Acts. Some sa w the Constitution as a protector of the rights of free blacks. Others believed the Constitution did not offer such protections, and was hopelessly corrupt. See William Wiecek, The Sources of Antislavery Constitutionalism in American, 1760 1848 (Ithaca N .Y., 1977). 31 See, for example, National Era June 27, 1850 and December 19, 185. Sixteenth Annual Report Presented to the Massachusetts Anti Slavery Society (Boston, 1848): 56.

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281 the National Assembly. 32 James in making at Washingt sovereign princ iples of the civilization and reason, as well as the imprescriptible prerogatives of 33 Perhaps motivated by these gestures on behalf of foreign government, abolitionists began trumpeting the plight of black sailors. During the late 1840s and into the 1850s, abolitionist presses became increasingly interested in the Seamen Laws. The National Anti Slavery Standard was among the first to take up the cause with gusto. As early as 1846, that organ highlighted the personal effects of racial qu gang four years and six months netted him twenty five cents a day. He would have never been able to pay the jail fees associated with his detention at that rate, and only by the intervention of a local attorney was gang until he 34 The Louisiana Seamen Law seemed to earn 32 The Massachusetts Anti Slavery Society actually reprinted the entire Act of Emancipation, and later commented, the presence of two black and two colored Members of the National Assembly, one of the former havi ng been Sixteenth Annual Report Presented to the Massachusetts Anti Slavery Society (Boston, 1848 ): 49 56. 33 The excerpt i s from the November 27 1850 session of the French National Assembly. Reprinted in The Anti Slavery Reporter March 1, 1851, 47 an illusion, and that relief will not easily be North Star (Rochester, N.Y.): April 17 1851 Apparently, before 1850, the French only officially complained of the Seamen Acts once, in 1837. See Philip Journal of South ern History 1 (May 1935): 144. 34 National Anti Slavery Standard October 8, 1846. Reprinted in Foner & Lewis, Black Worker 200 201.

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282 for years without ever coming before the local magistrate. In attempting to quantify the effects of the Seamen Laws, the Standard estimated that over 1100 U.S. sailors faced incarceration annually, with a cumulative cost of nearly half a million dollars. 35 It would be a mistake to take the Standard at its word. Even Senator Winthrop supposed the numbers and costs to be overestimated, and some of the supposed sailors languishing in New Orleans jail were reportedly arrested before the Seamen Law was even enacted in Louisiana. But the proliferation of articles in the late 1840s and especially the 1850s brought the Seamen Acts to a much larger Northern audience. The Fugitive Slave Act and its relationship to the Seamen Acts received heavy treatment, and ab olitionist papers reported the actions of British diplomats and Southern legislatures all the way to the Civil War. The issue of the Seamen Laws had become some widespread in the North that the Free Soil Party officially made the rescission of the quarant ines an official plank in their 1852 platform. 36 One of the more sensational stories that reached the antislavery presses concerned the covert interactions between the British Consul in Charleston, George Mathew, and South Carolina officials. Considering t he abortive attempts of Congress in the fall of 1850, British 35 National Anti Slavery Standard October 15, 1846. Reprinted in Foner & Lewis, Black Worker 203 204. British antisla very publications also began highlighting the treatment of black sailors. See The British and Foreign Anti Slavery Reporter May 1, 1850; The Anti Slavery Reporter January 1, 1851 and March 1, 1851. 36 That as, by the Constitution "the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states," the practice of imprisoning colored seamen of other states while the vessels to which they belong lie in port, and refusing the exercis e of the right to bring such cases before the Supreme Court of the United States, to test the legality of such proceedings, is a flagrant violation of the Constitution and an invasion of the rights of the citizens of other states, utterly inconsistent with the professions made by the slaveholders that they wish the provisions of the Constitution faithfully observed by every state in the Union. Platform adopted at the Free Soil Convention, August 11, 1852, in Pittsburgh, PA. See Horace Greeley & John Clev eland, A Political Text Book for 1860 (New York, 1860): 21.

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283 focus to the state governments. President Millard Fillmore hoped for success, and even thought that S 37 Hoping to play to the secession minded South Carolina government, Mathew penned a formal diplomatic note to Governor John Means. The letter reiterated the sentiments of merchants and the cotton and rice producers in the state. L ike Palmerston, he also offered a word of warning; the continued arrests of British subjects might force London to reconsider the in which he implored South Caro lina to amend the law to exempt British sailors in order to 38 To an objective outsider, this letter had all the looks of formal diplomatic note between two na tions. Even a member of the British legation in Washington thought Mathew had tis h r ecognition of an independ e n t n a t i o n 39 Though at first hesitant, Governor Means eventually forwarded the note to the Assembly, but South Carolina lawmakers had far more pressing matters than British mariners, particularly whether to secede im mediately or await Southern cooperation. Ultimately, the Cooperationists won the day, but the vast majority of the South Carolina governing elite foresaw an impending 37 38 Mathew to Means, December 17, 1850, in Correspondence 151 152. 39

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284 disintegration of the United States. 40 In such an event, the maintenance of friendly rel ations with Great Britain and other European powers would be a top priority. But those negotiations would next session, in December 1851. Considering the vict ory of the Cooperationists in early 1851, South Carolina officials understood the importance of keeping the Mathew Means correspondence under lock and key. Local newspapers agreed not run the story, though numerous copies had been printed for the use of t he legislators. One of these copies, however, ended up in the hands of a New York Evening Post correspondent. The letter was published, along with a scathing editorial, in late January, 1851. The story circulated widely, and aspersions were cast in all directions, from both antislavery and mainstream publications. Some harangued Great Britain for encouraging Southern secession; others lambasted President Fillmore for not enforcing federal treaties in South Carolina; still others saw the correspondence o f evidence that South Carolina already considered itself a separate sovereignty. One paper mockingly invited South Carolina to secede, for if it were independent, it would have no choice but to remove the Seamen Act from its statute book. Even in the Sou th, editorials were unkind to the diplomatic negotiations, tending to alienate South Carolina firebrands from their Southern brethren and diminishing the likelihood of a concerted Southern withdrawal from the Union. British ministers in Washington explain ed, or rather apologized, to Secretary of State Daniel Webster. The Consuls were not engaged in formal diplomacy; they were simply trying to convince local authorities to alter enforcement of a 40 On the sec ession issue in 1850, see John Barnwell, (Chapel Hill, N.C., 1982); Manisha Sinha, The Counterrevolution of Slavery: Politics and Ideology in Antebellum South Carolina (Chapel Hill, N.C., 2000).

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285 municipal regulation. 41 Despite the vituperative characteriza tion of his government by American 42 Unsurprisingly, the Charleston Mercury t was time to expect [anymore] that this fundamental principle of the d istinction of races shall be yielded up in the larger message of amelioration. Carolinians should forgive British officials for their emancipation of the Cr eole proper state authorities in securing repeal of the Seamen Law. 43 What the editors of the Mercury d id not know was that Consul Mathew had clandestinely secured legal advice from James Petigru, who suggested that the Seamen Acts would not withstand judicial scrutiny. The very man the Mercury to circumvent them through judicial channels if the state legislature failed to amend the law. 44 Secretary of State Daniel Webster thought a suit in federal court to be a wonderful idea. In the current state of affairs, his hands were tied, as were the re st of the members of the federal 41 Hame 154; National Era July 24, 1851. 42 Palmerston to Mathew, January 3, 1851 and March 21, 1851, in Correspondence 43 The Mercury art icle reprinted in Correspondence 169 171. 44 Mathew to Palmerston, 2 April 1851, in Correspondence 194 197. Petigru, of course, was no stranger to the Seamen Laws, and in his opinion to Mathew, he revealed his long relationship with racial quarantines. He was the South Carolina Attorney General who failed to defend Sheriff Deliesseline and the Seamen Act in 1823. See Chapter 3 above.

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286 executive. But if the Supreme Court struck down the law, as Webster believed it would if given the chance, the President would be obliged to enforce the decision. For Webster, the best (and only) way to compel federal int ervention was through a mandate from the High Court. 45 When Palmerston heard of the idea, he readily approved it and sent instructions to commence the suits. 46 Despite all this optimism, the British Consul in Savannah was less sanguine about the finality o firmly believe, from the frenzied state of feeling of the people generally in Geo rgia and South Carolina, that the decision of the Supreme Court will be disregarded. 47 Meanwhile, in New Orleans, Consul William Mure had received the same instructions about securing repeal from state officials. Probably aware of the hoopla over the Mathe w Means correspondence, Mure suggested a more informal method of securing repeal. In addition to informal conversations with state lawmakers, he would secretly hire a prominent Baton Rouge attorney to write a bill that would grant British sailors exemptio n from the state Seamen Law. If Rouge would prevent accusations of British meddling. Over the course of 1851, Mure executed his plan and waited for the winte r term of the legislature. 48 His anticipation must have increased when he received word from a self proclaimed British subject who had been punitively enslaved 45 Correspondence 206. 46 Palmerston to Cram pton, 19 December 1851, in Correspondence 207 47 Molyneux to Bulwer, January 11, 1851 in Correspondence 166. In another note, the Consul included a short clip have their ports thrown open to the unconditional ingress of and regress of black abolitionists neither from Old England nor New Correspondence 172 173. 48 Mure to Bulwer, February 10, 1851, in C orrespondence 192 193.

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287 sail 49 At the end of 1851, both South Carolina and Louisiana contemplated liberalization of the Seamen Laws, though the routes leading to these two contemplati ons differed dr astically. In t h e Louisiana l e g i s l a t ure cost the crown over five hundred dollars, but henceforth, all free black mariners would be allowed to remain aboard their vessels and even allowed to land if municipal authorities element, incarceration. 50 In Columbia, however, South Carolina lawmakers refused to amend the Seamen Act early in their session, though they we nt to great lengths to illustrate that their racial 51 Disappointed but not surprised, Consul Mathew replied to the legislature in a letter to the governor. In it, he regretted the intransigence of the Assembly. Though not officially revealing including sitting Supreme Court Justices Grier, McLean, and Wayne concerning the viability of state laws in contravention of federal treaties. Citing The Passenger Cases but not explicitly, Mathew was indirectly telling the South Carolina Assembly that the U.S. Supreme Court would soon be hearing a case involving racial quarantines. When the gov ernor relayed the message to the Assembly, one State Congressmen understood the thinly veiled threats and nearly succeeded in having Mathew forcibly removed from the state under the provisions passed during the Hoar 49 See Mure to Palmerston, November 21, 1851, in Correspondence 203 205. 50 Acts of Louisiana (1852): 193 194. 51 reprinted in Correspondence 207 210.

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288 Affair. When the end of the legislative session approached and the Seamen Act remained unamended, Mathew again hailed the governor. In an even more biting letter, Mathew specifically cited the Passenger Cases as evidence that the Seamen Act would certainly fall if the state legislature did not rights for all people of color in South Carolina, Mathew laughed. He explicitly referenced hich refuted Afro British subjecthood and African American citizenship. Those legal positions, though debatable, were now moot. The British no longer had to fight the uphill batt le for the recognition of its black subject s Thanks to The Passenger Cases the Commerce Clause was back in play. 52 Despite his audacity towards South Carolina officers, Mathew was much more equivocal when he wrote a confidential letter to the Foreign Office a few days later. Apparently, secessionists loved the idea of a lawsu it. Nothing would suit their designs better than a planned, the operation and Union parties, to prevent a Mathew hoped the Foreign Office would seek retaliation by bumping the imposts on American made rice and cotton. It would be a risky venture, and Mathew hoped that the threat of litigation would be 53 52 See Mathew to Palmerston and enclosures, January 7, 1852, in Correspondence 218 234. 53 Mathew to Palmerston, January 10 1852, in Correspondence 235 236.

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289 If Mathew doubted that the litigation strategy would work, he did not show it. He maintained a stoic poker face, and in the spring, he initiated two cases. The first was on behalf of Manuel Pereira, a Portugal born deckhand serving aboard a British ves sel. Having been arrested, Mathew and his attorneys filed for habeas corpus in state court, to the thunderous applause of Northern newspapers. 54 The hope, of course, would be that the state judiciary would deny the writ up the appeals ladder, which would eventually allow for an appeal to the federal Supreme Court. 55 As anticipated, the trial court denied the writ, and Pereira petitioned the South release and secured him a ship to New York. His attorney, James Petigru, assured the Consul 56 Continuing wit h the plan, Mathew initiated another suit, this time in federal court, on sought four thousand dollars from the arresting officer, Sheriff Jeremiah Yates. 57 To ap pear on behalf of the Sheriff was a constellation of legal talent. The South Carolina Attorney General was joined by two members of the South Carolina legislature, as well as United States Senator Andrew P. Butler. 58 The original court date was set for No vember, but a delay moved it back to the following spring. 54 See, for example, New York Daily Times April 27 hment of this point will be remembered as the object of the mission to Charleston of Hon. Mr. Hoar of Mass., who was politely but forcibly reminded that Carolina could not contain him twenty Frederick Douglass Paper June 17 1852 an d August 6 1852 55 Mathew to the Earl of Malmesbury, April 24, 1852, in Correspondence 242 244. 56 Mathew to Malmesbury, May 18, 1852, in Correspondence 259 260. 57 Mathew to Malmesbury, June 16, 1852, in Correspondence 261. 58 Roberts v. Yates 20 F. Ca s. 937 (1853).

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290 The pieces were in place. Two test cases were in the works, and the South Carolina exploits. If the legisla ture amended the Seamen Act, then the cases would be abandoned. If the legislature resisted, the British government would be faced with a dilemma. They could admit their bluff, and protect their Unionist allies by dropping the cases, anyway. Or they cou ld continue with their litigation. A favorable ruling from the Supreme Court might end the problem, but it might also end the Union. An adverse ruling would undercut the Secessionists in South Carolina, but at the expense of British sailors. Considering the possibilities of litigation, the British Foreign Office hoped that the South Carolina Assembly would remedy the situation on its own. Consul Mathew, however, would have to watch from afar; he left the state, probably for fear of being arrested and ev icted. 59 In his message to the Assembly, Governor Means did not budge. He hoped the legislature would leave the Seamen Act alone. He also suggested lawmakers statutorily protect law enforcement officials, like Sheriff Yates, who might be sued in federal c ourt when acting in their official capacities and in accordance with state law. Means admitted that he once contemplated conflict with the Federal Government, o n a subject upon which we are so justly sensitive, our own self 60 The Assembly responded to 59 Acting Consul Lance to Malmesbury, November 24, 1852, in Correspondence 263 60 Correspondence 263 265.

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291 did not touch the Seamen Act. The British now had to decide if they were going to maintain their suits and force the courts to interpose. Northern papers watched with eager anticipation. 61 The Pereira case was heard while the legislature was still in session. However, th e Court of Appeals did not play their part in the drama being orchestrated by the British Foreign Office. U.S. Supreme Court, the South Carolina Court of App Hence we should do a vain act to hear this appeal. It is therefore, on motion of the Attorney 62 From a legal standpoint, this decision was highly suspect, but from a politica attorneys. Without a ruling from the Court of Appeals, the Supreme Court could not intervene if n Acts, the immediately after his imprisonment in Charleston, Pereira told of his exploits under the Seamen Act to a writer calling himself F.C. Adams. Adams turned a book The book was internationally renowned amongst abolitionists, and its currency and sensationalism only enhanced its notoriet y. 63 In February, 1853, the Russell Ministry fell to a Conservative coalition that anointed Lord Aberdeen, an old Peel advocate, Prime Minister. Aberdeen was experienced with the Seamen 61 See, for example, New York Daily Times November 24, 185 3 and December 6, 1853. The latter article included the entire message. 62 Ex parte Manuel Pereira reprinted in Correspondence 266. See also Petigru to Mathew, February 4, 1853, in Correspondence 265 266. 63 F.C. Adams, Manuel Pereira; or, The Sovereig n Rule of South Carolina with views of Southern Laws, Life, and Hospitality (Washington, D C 1853). National Era Feb 17, 1853 and Aug 25 1853 ; The Anti Slavery Reporter August 1, 1853.

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292 Acts. His policy of quiet supplication in 1844 had nearly resulted in a relaxation of the law in South Carolina until the exploits of Samuel Hoar undermined it. Now as Prime Minister, Aberdeen apparently sought to reapply this policy. His Foreign Secretary, the Earl of Clarendon, began gathering information on Roberts v. Yates from the British legation in Washington. As Clarendon considered the efficacy of litigation, the U.S. District Court for South Carolina upheld the Seamen Act opening the door, finally, for an appeal to the United States Supreme Court. 64 Petigru was ready to file the appropriate paperwork, which would have placed the case on the High Court upcoming winter term. 65 All he needed was word from the Foreign Office. But the new Conservative Ministry had no intention of pursuing the case any further. When a British minister in Washington put a temporary hold on the appeal to the Supreme Court, for fear that the Supreme Court might evade it on technical grounds, Clarendon had found his escape. 66 He instructed the British Legation to make the suspension perman 67 When news broke that Clarendon dropped the suit, it unleashed a whirlwind of criticism from the Northern press. 68 Why would Clarendon want to stop the suit? Most likely, it w as a combination of factors. and guile. The Foreign Secretary may have wanted to pursue a similar course in South Carolina. 64 or summarized in various Northern newspapers. See Chicago Daily Tribune May 3, 1853; New York Daily Times June 29 1853; National Era May 5 1853, June 30, 1853, and July 14 1853 65 Roberts v. Yates 20 F. Cas. 937 (1853). See also Correspondence 269 271. The Anti Slavery Reporter June 1, 1853. 66 Crampton to Clarendon, May 2, 1853, in Correspondence 271 272. 67 Clarendon to Crampton, May 20, 1853, in Correspondence 272. 68 The Barre Patriot (Barre, Mass.): July 1, 1853; (Amherst, N H .): May 5 1853 (though this article was absolutely wrong, reporting that Pereira was suing in federal court for $4000 ); New York Daily Times December 5, 1853.

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293 It is also possible that Clarendon sh ared the opinion of his boss, the Earl of Aberdeen, that threats of federal intervention were no way of persuading Southern fire eaters to alter their policies. It is also likely that Clarendon believed, as his Consul in Savannah did, that any decision by the federal Supreme Court would be summarily ignored by some of the Southern States. Lastly, Clarendon may have been attempting to distance himself from the previous administration. Lord Palmerston, besides pressing for this lawsuit in particular, had f aced a political firestorm in the wake of the Don Pacifico Affair, when he ordered the Royal Navy to seize Greek ships after the Greek government failed to compensate a British subject for his loss ggested a more moderate and covert approach from his successor. Whatever his motives, Clarendon invited an onslaught with his decision to abandon Roberts v. Yates plans were now that litigation had been abandoned. 69 Others were more direct and ferocious. Former Prime Minister Sir John Russell blasted Clarendon for dropping the case, and indicated that the only avenue now open was economic sanctions. 70 Abolitionists were up in arms. A n editorial in The Anti Slavery Reporter (incorrectly) blamed Consul Mathew for dropping the case and bowing to the slave power in the South. In case the citizens of Charleston might view the 69 New York Daily Times June 27, 1853. Luckily for historians, Beaumont requested that all correspondence related to the imprisonment of black British seamen be compiled and presented. Clarendon obliged. 70 The Anti Slavery Reporter July 1, 1853 and August 1, 1853.

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294 condoned the Seamen Act. 71 An editorial in the London Times was equally unnerved by the decision to abandon the case. There is a question which should be put to Lord Clarendon before the session closes. It is a question which has been asked of successive Ministers, and the time seems to be come for a final answer. We want to know more of what has been done, and what is to be done about the treatment of British seamen in the port of Charleston, South Carolina?...[That] little community which boasts that it holds the British empire and the liberties of its citizens at its mercy; but we feel it to be South Carolina is not to overbear the world, place all its commerce under an intolerable condition, because she chooses to outrage its reprobated by all civilized soci ety. 72 The fury over Roberts v. Yates was directed at both Parliament and obstinate South Carolina. But Clarendon was attempting to turn the tables on South Carolina Secessionists. Consul remaining shreds of the 73 (Little did South Carolinians know, but Mathew was appointed to a post in Philadelphia.) Now, Secessionists had to make a decision; should the amend the law? If they remained inflexible now, they would be angering a friendly administration, and such callousness now might be counterproductive if South Carolina left the Union. British support would b e absolutely necessary for the survival of an independent South Carolina. Unionists must have blown a sigh of relief when Britain dropped the case. Now, they could advocate a Seamen Act amendment in accord with desires of their merchant based constituenc y with hopes that Secessionists would jump on board. But the pressure was on them; if the Secessionists refused to budge on an amendment, Britain might resume litigation, forcing a 71 The Anti Slavery Reporte r August 1, 1853. 72 The editorial was reprinted in New York Daily Times September 2, 1853. 73

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295 decision by the Supreme Court. And any decision coming down from the High Court would play into the Secessionists hands. The new South Carolina Governor, John Manning, was in favor of concessions, but despite a warm reception in both Houses, the Assembly refused to alter the Seamen Law in any way. 74 conciliation was the surest strategy for repeal. Time and diplomatic finesse could fix what Palmerst on and Mathew had broken. Over the course of the year, Bunch mimicked the actions of Consul Mure in New Orleans in 1851. He informally met with legislators and the governor. ature abetted quarantine for forty days. Ship captains still had to report all people of color on their vessels, but local magistrates could offer passports at t heir discretion. Now, free black sailors were not people posed threats and which ones did not. The British Consul in Savannah, E. Molyneux, was instrumental in the chidings had dulled the intense anger felt by Georgians in the wake of Roberts and Pereira Al s o like Mure, Molyneux had hired an attorney, co authored the bill, and had a well respected member of the Assembly present the legislation. 75 passed a revised Seamen Act in line that abolished incarceration, but Lower House defeated it, 74 Journal of the South Carolina Senate (1853): 26 374. 75 Acts of Georgia, 1853 1854 106 107.

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296 76 Unlike the previous modification Gove rnor meant that Bunch would have a difficult job at the next legislative session. His fears proved well founded; the winter session of 1855 1856 saw no modification, and Bunch feared the window of opportunity had closed. Over the course of the next year, Bunch focused very little on the Seamen Act amendment. chair and none other than Lord Palmerston now r an the British government. Additionally, in 1856, James Buchanan was put into the White House, but the Republicans made a strong showing. Many of the members of the new Republicans came out of the Whig and Free Soil Parties, both of which tended to demon ize racial quarantines. The walls seemed to be closing in on the South Carolina Assembly. If they continued in their bullishness, they would alienate the North, the federal government, and the British. If South Carolina did not concede ground on the Sea men Law, they would also be isolated from the other major Southern players, namely Georgia and Louisiana. Those two states might resent South Carolina intransigence at this critical political moment. st John Harleston Read asked Unionist Richard Yeadon, the editor of the Courier assembled enough votes to push the amendments through the legislature. 77 Acc ording to the new law, black sailors, both foreign and 76 162 163. 77 387.

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297 domestic, could remain aboard their vessels if bond was given to ensure they would not go ashore. Specific exemptions were granted to victims of shipwreck and inclement weather as well. 78 Though antic limactic the state legislature modified the law the very year in which just about everyone conceded the futility of the endeavor success had finally been achieved in the Southern stronghold of South Carolina. Northern and abolitionists presses joined i n the British celebration. 79 This moment, just before Christmas, 1856, should have been a moment of ultimate triumph for the many people who had tried to undo the Seamen Acts since their inception in 1822. 80 In the states with the most vital ports South C arolina, North Carolina, Georgia, Alabama, and Louisiana, law enforcement officials were no longer obliged to haul black sailors off their vessels and into jail on account of their complexion. Certainly, there was work left to do for the diehard opponents of racial quarantines; black seamen were still not exercising the rights and liberties of their white counterparts. But the most egregious feature of the Seamen Acts had largely been extinguished from Southern statute books. Certainly, Consul Bunch, Lor d Clarendon, and Lord Palmerston were all very relieved that South Carolina had decided to follow the rest of the South in honoring the Union Jack. Anticlimactic or not, the achievement was impressive. Regrettably, this moment of vindication was short li ved. 78 Acts of South Carolina, 1856 573 574. 79 See New York Evangelist January 8, 1857; New York Daily Times January 6, 1857 80 Unfortunately, Samuel Hoar did not survive to see his mission f ulfilled, at least partially. He died earlier in 1856. See National Era November 20, 1856.

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298 CHAPTER 10 EPILOGUE: DRED SCOTT, REENACTMENT, AND SECESSION Less than three months after opponents of racial quarantines celebrated their most hard fought victory in South Carolina, the United States Supreme Court handed down the infamous Dred Sco tt decision. The notorious opinion of Chief Justice Roger Taney denied federal citizenship to all free African Americans, formally embedding his Contracting Parties Theory of citizenship into American constitutional law. Twenty five years earlier, Taney first elaborated this contentious understanding of citizenship in an opinion on the Seamen Acts that he penned as Attorney General for President Andrew Jackson. Initially employed as a means to deny treaty tually adopted by Georgia and South Carolina same protections originating in the Constitution rather than a treaty for its black sailors that British diplomats sought for their black countrymen. Then, in March, 1857, the Supreme Court adopted the same premise, that African Americans were not, and never were, citizens of the United States of America. In Charleston, the Mercury celebrated the decision, explicitly the Privileges a nd Immunities Clause to African Americans. 1 As if a preface to Dred Scott the Texas legislature made it criminal for shipmasters and captain to bring into the state any free person of color after January, 1857. The law was quite vague, remaining silent on the issue of sailors, cooks, and stewards. It a lso refused to identify the exact location where the law went into effect. 2 Were the harbors exempt? Did sailors have 1 Scott v. Sandford 60 U.S. 393 (1857); Charleston Mercury March 16, 1857. 2 Acts of Texas, 1856 Chapter CXIX.

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299 to go ashore before the captain violated the law? What was to happen to the sailors, as the law only criminalized the actions of the ca ptain? The law went into effect just weeks before Dred Scott came down, and the British Consul was instructed to inquire with caution. 3 The British Foreign Office plugged one hole in the dam of racial quarantine in South Carolina, only to see another hol e emerge in Texas. And after thirty five years, the same questions were still being posed. And more holes were on the horizon. In 1859, Louisiana altered its Seamen Act to reinstitute mandatory incarceration. 4 The reenactment was part of a larger legisl ative strategy to dispel any doubts about the future of the United States if Louisiana was to remain in the Union. reopen the African slave trade to New Orlea ns. Another Committee also passed a resolution requesting the immediate annexation of Cuba. 5 seemed to be in accord. The following year, 1860, South Carolina took the next logical step after Republican Abra ham Lincoln won the presidential election. But even after South Carolina formally seceded from the Union, the Seamen Acts were influencing events. Only weeks after the news broke that Columbia had approved secession, federal Congressmen contemplated a bi ll that would dismantle many of the personal liberty laws that hampered enforcement of the 1850 Fugitive Slave Law, hoping to use such a law to lure South Carolina back and prevent other 3 Journal of Southern History 1 (May 1935): 167. 4 Acts of Louisiana, 1859 70 72. 5 Documents of (Baton Rouge, La., 1859).

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300 Deep South States from withdrawing. House Democrats, however, voted it down because the law would also make void the various Seamen Acts. 6 But the Deep South did secede, and the Civil War was fought to bring them and the rest of the Confederacy back into the United States. With a small touch of irony, the Union blockade of the Southern coastline finally prevented the ingress of any free black sailors, including Britons, into Southern port cities. The dangerous Atlantic had been hemmed in by Union warships. But longer a pressing problem for Southern lawmakers. Even if they were, the constitutional dilemma of racial quarantines had been solved by the Fourteenth Amendment, which obliterated Parties Theory by overtu rning key portions of Dred Scott Moreover, the years following the war. When looking back at the Seamen Acts, several factors seem to explain their contentious h istory. Racial quarantines sat at the intersection of two of the most vexing constitutional issues of the antebellum period: the protection of slavery and the power of the federal government. Neither issue was resolved before Appomattox, so it should be unsurprising that the Seamen Acts survived into the 1860s as well. No consensus ever emerged on the Seamen Laws, and leading legal minds and political pundits came to very different conclusions on the constitutionality of racial quarantines. Supreme Cour t Justices, Attorneys General, Whigs, Democrats and others could not agree amongst themselves about their legality. This lack of consensus most often translated into a federal government dedicated to nonintervention, seeing no possible positive outcome by engaging the South on murky constitutional issues (especially 6 Fayetteville Observer (NC): December 31, 1860.

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301 one so closely related to slavery). In the entire history, the only overt federal intervention occurred at the beginning, in 1823, when William Johnson attempted to strike down the first Seame n Law in Elkison v. Deliesseline Though subsequent Congresses and Administrations government condoned racial quarantines. Yet, even among the greatest advocates of the survival was more a matter of pride than constitutional principle, international politics, or a dedication to policy. One only has to consider that the greatest successes came during Tory or Conservative Minis tries when the Foreign Office refrained from engaging directly with federal or state officials and during periods of federal apathy. Most often, especially in the 1850s, the debates on the Seamen Acts typically hinged on the presence or absence of out side interference, not on new or persuasive constitutional or political arguments. If liberalization was seen as a homegrown idea, Southern legislatures often amended their statutes. If liberalization was suggested or demanded by British or Northern agit ators, on the other hand, Southern lawmakers refused to budge. Policy and constitutionality became secondary to displays of Southern independence. Undoubtedly, domestic political and constitutional issues are insufficient in explaining much of the Seame filed lawsuits; British Consuls cajoled state assemblies; British Ministers pressed Secretaries of States; and Foreign Secretaries orchestrated policies. In fact, every liber alization and rescission of a racial quarantine was a result of British interference. In contrast, when federal or Northern interlopers sought amendments, they failed miserably. Also, British colonial reforms, mainly Toleration Laws and Emancipation, for ever altered the Seamen Acts debates and helped

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302 guarantee decades of turmoil. British Emancipation provided Southern States with the evidence they needed to prove the dangers of abolitionism and black sailors, but it also motivated British Whigs to demand recognition of black British subjects. Whether it was British Emancipation inspiring the roots of Dred Scott American citizenship or British pressure British politics and co nstitutional change had a tangible impact on the trajectory of U.S. constitutional development. In the end, t he h istory of the Seamen Acts makes clear that much of U. S. antebellum history can only be understood fully in a larger, transnational context.

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303 BIBLIOGRAPHY Unp ublished Primary Sources Carl Brent Swisher Papers Manuscript Division Library of Congress, Washington, DC. Correspondence relative to the Prohibition against the Admission of Free Persons of Colour into certain Ports of the United States, 1823 1851 Se ries 5, Volume 579, Foreign Office Papers, Public Records Office, Kew, England Despatches from U.S. Consuls in Havana, 1783 1906 Record Group 59, T 20. Nat ional Archives, College Park, M D Despatches from U.S. Consuls in Kingston, Jamaica, 1796 1906 Record Group 59, T 31. Nat ional Archives, College Park, M D Despatches from U.S. Consuls in Santiago de Cuba Record Group 59, T 55. Nati onal Archives, College park, MD Domestic Letters of the Department of State. Record Group 59, M 40. Nat ional Arch ives, College Park, M D South Carolina Department of Archives and History, Columbia, SC Consular Instructions 201 volumes. Central Files of the Department of State, 1778 1963 Record Group 59.2. Nat ional A rchives, College Park, M D Miscellaneous Letters of the Department of State, 1789 1906 Record Group 59, M 179 Nat ional Archives, College Park, M D 1870 Record Group 60.2. Na t ional Archives, College Park, M D Reported Court Cases Calder v. Deliesseline Harper 186 ( SC 1824). Cherokee Nation v. Georgia 30 U.S. 1 (1831). Cohens v. Virginia 19 U.S. 264 (1821). Commonwealth v. Aves 35 Mass. 193 ( 1836). Corfield v. Coryell 8 F. Cas. 546 (1823). Crandall v. State 10 Conn. 339 ( 1834). The Cynosure 8 F. Cas. 1102 (1844).

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304 Dred Scott v. Sandford 60 U.S. 393 (1857). Elkison v. Deliesseline 6 F. Cas. 493 (1823). Gibbons v. Ogden 22 U.S. 1 (1824). The License Cases 46 U.S. 5 04 (1847). 14 U.S. 304 (1816). McCulloch v. Maryland 17 U.S. 316 (1819). New York v. Miln 36 U.S. 102 (1837). The Passenger Cases 48 U.S. 283 (1849). Prigg v. Pennsylvania 41 U.S. 539 (1842) Roberts v. Yates 20 F. Cas. 937 (1853). Worcester v. Georgia 31 U.S. 515 (1832) Government Documents Acts and Resolutions of the State of Georgia Milledgeville GA 1822 1860 Boston 1842 5 Acts of the Legislative Council of t he Territory of Florida Tallahassee, FL 1830 1844 Acts of Louisiana New Orleans 1830 18 48. Baton Rouge 1849 1860. Acts of Alabama Tuscaloosa 1838 18 45. Montgomery, 1846 1860. Raleigh 1822 1860 f the State of South Carolina Columbia 1822 1860. Acts of Texas Austin 1856. Richmond 1830 1860. Annals of the Congress of the United State s, 1789 1824 Washington, DC 1820 1824. British and Foreign State Papers 170 volume s. London, 1838 1839. Congressional Globe 46 volumes. Washington, DC, 1834 1860

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305 Constitution of Mississippi Jackson, 1832 Constitution of Missouri St. Louis, 1820 Constitution of North Carolina Raleigh, 1835 Constitution of Pennsylvania Harrisburg, 1839 Boston 1844 1845. Baton Rouge 1859 Boston 1844 184 5 House of Commons Papers Vo lume 31 Paper 59 and Paper 363 London, 1831 1832. House Document 87 29 Cong 1 s ess Washington, DC 1846 House Report 72 27 Cong 3 s ess Washington, DC 1843 House Report 80 27 Cong ., 3 s ess Washington, D C, 1843. House Report 707 26 Co ng ., 1 s ess Washington, DC 1840. Journal of the House of Representatives Washington, DC 1842 1850. Journal of the House of Representatives for the State of Delaware Dover, 1825 Journal of the Senate and House of Commons of the General Assembly Raleigh 1831 Journal of the Senate of the State of Louisiana Baton Rouge 1845. Journal of the South Carolina Senate Columbia, 1853. Laws of the State of Mississippi Jackson 1825 1860 Massachusetts Legislative Documents Boston 1842 1845. Register of Debates (of Congress) Washington, DC 1824 1833. Columbia 1844. Columbia 1822 1860. Resolut Tuscaloosa, 1835 1845. Montgomery 1846 1860

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306 New Orleans 1830 18 48. Baton Rouge 1849 1860. Territorial Constitution of Florida Tallahassee 1839 Newspapers and Periodicals T he Anti Slave ry Reporter (London) 1850 3 A frican Repository and Colonial Journal (Washington, DC ) 1830. Barre Patrio t (Barre, MA) 1853. Boston Courier 1841. The British and Foreign Anti Slavery Reporter (London) 1850 9. Charleston Courie r (SC) 1822 1860. C harlesto n Mercury (SC) 1822 1860. Chicago Daily Tribune 1853. Daily Atlas (Boston) 1842 Fayettevill e Observer (NC) 1860. Floridian (Tallahassee FL ) 1832. (Amherst, NH ) 1851 3 Frederick Douglass Paper (Rochester) 1852 Boston Liberator 1831 1860. National Anti Slavery Standard (New York) 1842 1846 National Er a (Washington, DC ) 1850 6 New York Daily Times 1852 7 New York Evangelist 1844 57 (Baltimore) 1822 1837. r (Baltim ore) 1837 1849.

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307 The North Carolina Journal (Fayetteville) 1830 1832. (Albany) 1842 North Sta r (Rochester) 1851 Raleigh Register & NC Gazette 1843. Richmond Enquirer 1819. Southern Patriot (Charleston, SC ) 18 27 1844. Southern Quarterly Revie w (Columbia, SC ) 1845. The Sun ( Pittsfield, M A ) 1850 Trumpet and Universalist Magazine (Boston) 1829 1844. Published Primary Sources Achates [Thomas Pinckney]. Reflections, Occasioned by the late Disturbances in Ch arleston Charleston, SC : A.E. Miller, 1822. Adams, F. C. Manuel Pereira: or The Sovereign Rule of South Carolina with Views of Southern Laws, Life, and Hospitality Washington, DC: Buell and Blanchard, 1853. Adams, John Quincy. Argument of John Quin cy Adams Before the Supreme Court of the United States in the case of the United States, Appellants, vs. Cinque, and others, Africans, captured in the schooner Amistad, by Lieut. Dedney, Delivered on the 24 th of February and 1 st of March 1841 New York : S .W. Benedict, 1841. A nnual Reports of the New England Anti Slavery Society Boston, 1834. Annual Reports Presented to the Massachusetts Anti Slavery Society Boston, 1842 8. Bleser, Carol, ed. Secret and Sacred: The Diaries of James Henry Hammond, a Southern Slaveholder New York : Oxford University Press, 1988. Brutus [Robert Turnbull]. The Crisis: Or, Essays on the Usurpations of the Federal Government Charleston, SC: A.E. Miller, 1827. Chandler, Peleg, ed. The Law Reporter Volume 7 Boston : Bradbury, Soden, and Company, 1845.

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309 Johnson, William. The Opinion of the Hon. William Johnson, delivered on the 7 th of August, 1823, in the case of the arrest of the British Seaman under the 3d section of the State Act, entitled, othe passed in December last Charleston, SC: C.C. Sebring, 1823. Kennedy, L.H. & T. Parker. An Official Report of the Trials of Sundry Negroes Charged with an Attempt to Raise an Insurrection in the State of South Carolina Charleston, SC: J. R. Schenck, 1822. Madden, R.R. The Island of Cuba: Its Resources, Progress and Prospects London: Partridge & Oakey, 1853. Proceedings of the United States Senate, on the fugitive slave bill, the abolition of the slave trade in the District of Columb ia, and the imprisonment of free colored seamen in southern ports: with speeches of Messrs. Davis, Winthrop and others Washington, DC: Press of T.R. Martin, 1850. Ripley, C. Peter, ed. The Black Abolitionist Papers 5 v olumes. Chapel Hill, NC: Univ ersity of North Carolina Press, 1985 1992. Starobin, Robert, ed. Denmark Vesey: The Slave Conspiracy of 1822 Englewood Cliffs, NJ: Prentice Hall, 1970. Story, Joseph. Commentaries on the Conflict of Laws Foreign and Domestic 2 nd edition. London: 1 841. Tappan, Lewis. The Fugitive Slave Bill: Its History and Unconstitutionality with an Account of the Seizure and Enslavement of James Hamlet, and His Subsequent Restoration to Liberty 3 rd Edition. New York : W. Harned, 1850. Taylor, John. Constr uction Construed and Constitutions Vindicated Richmond, VA: Shepherd & Pollard, 1820. Tragle, Henry Irving, ed. The Southampton Slave Revolt of 1831: A Compilation of Source Material Amherst, MA: University of Massachusetts Press, 1971. Turnbull, D avid. Travels in the West: Cuba with Notices of Porto Rico and the Slave Trade London: Longman, Or me, Brown, Green, and Longmans, 1840. Walker, David. An Appeal to the Coloured Citizens of the World Boston, MA: D. Walker, 1829 Young, Alexander. Discourse Occasioned by the Death of Benjamin Rich, Esq. Delivered in the Church on Church Green, June 8, 1851 Boston : John Wilson & Son, 1851.

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310 Seconda ry Books, Articles Theses, and Dissertations In The Impact of the Haitian Revolution in the Atlantic World edited by David Geggus 93 111 Columbia, SC: University of South Carolina Press, 2001. Allen, Austin. Origins of the Dred Scott Decision: Jacksonian Jurisprudence and the Supreme Court, 1837 1857 Athens, GA: University of Georgia Press, 2006. Ames, Herman V. The Proposed Amendments to the Constitution of the United States during the First Century of Its History New York: B. Franklin, 1970. Barnwell, John. Love of Order: Sou Chapel Hill, NC: University of North Carolina Press, 1982. Bailyn, Bernard. Atlantic History: Concepts and Contours Cambridge, MA: Harvard University Press, 2005. ---. The Ideological Origins of the American Re volution Cambridge, MA: Belknap Press of Harvard University Press, 1967. Benton, Lauren. Law and Colonial Cultures: Legal Regimes in World History, 1400 1900 New York : Cambridge University Press, 2002. Berlin, Ira. Many Thousands Gone: The First Tw o Centuries of Slavery in North America Cambridge, MA: Belknap Press of Harvard University Press, 1998. ---. Slaves Without Masters: The Free Negro in the Antebellum South New York : Pantheon Books, 1974. ---, Space, and the Evolution of Af ro American Society on British Mainland North American Historical Review 85 ( February 1980): 44 78. Beveridge, Albert J. The Life of John Marshall New York : Houghton Mifflin Company, 1918. In The Impact of the Haitian Revolution in the Atlantic World edited by David Geggus 14 18. Columbia, SC: University of South Carolina Press, 2001. Bolster, W. Jeffrey. Black Jacks: African American Seamen in the Age of Sail Cambridge, MA: Harvard Universit y Press, 2007. Bradburn, Douglas. The Citizenship Revolution: Politics and the Creation of the American Union, 1774 1804 Charlottesville, VA: University of Virginia Press, 2009

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318 Wyatt Journal of Negro History 50 (October 1965): 227 238

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319 BIOGRAPHICAL SKETCH Michael Ala n Schoeppner was born in 1976 in North Canton, Ohio. The eldest of three children, he gr ew up in North Carolina, graduating from Southwest Guilford High School in 1995. He earned his BA from the University of South Florida in 2000 and his MA from the University of Florida in 2005. Upon earning his doctorate in December, 2010, Michael will b e moving to New York City to pursue his career as a historian.