Iillegally Africans in the United States
The First Question: How shall illegally imported Africans be disposed of? (the Period of Attempted Suppression of Slavery)
In the book “The Suppression of the African Slave Trade to the United States of America 1638-1870” (1), W. E. B. Du Bois explained the following: That illegally imported Africans be free, although they might be indentured for a term of years or removed from the country. 2. That such Africans be sold as slaves.4 The arguments on these two propositions, which were many and far-reaching, may be roughly divided into three classes, political, constitutional, and moral.
The political argument, reduced to its lowest terms, ran thus: those wishing to free the Negroes illegally imported declared that to enslave them would be to perpetrate the very evil which the law was designed to stop. “By the same law,” they said, “we condemn the man-stealer and become the receivers of his stolen goods. We punish the criminal, and then step into his place, and complete the crime.”5 They said that the objection to free Negroes was no valid excuse; for if the Southern people really feared this class, they would consent to the imposing of such penalties on illicit traffic as would stop the importation of a single slave.6 Moreover, “forfeiture” and sale of the Negroes implied a property right in them which did not exist.7 Waiving this technical point, and allowing them to be “forfeited” to the government, then the government should either immediately set them free, or, at the most, indenture them for a term of years; otherwise, the law would be an encouragement to violators. “It certainly will be,” said they, “if the importer can find means to evade the penalty of the act; for there he has all the advantage of a market enhanced by our ineffectual attempt to prohibit.”8 They claimed that even the indenturing of the ignorant barbarian for life was better than slavery; and Sloan declared that the Northern States would receive the freed Negroes willingly rather than have them enslaved.9
The argument of those who insisted that the Negroes should be sold was tersely put by Macon: “In adopting our measures on this subject, we must pass such a law as can be executed.”10 Early expanded this: “It is a principle in legislation, as correct as any which has ever prevailed, that to give effect to laws you must not make them repugnant to the passions and wishes of the people among whom they are to operate. How then, in this instance, stands the fact? Do not gentlemen from every quarter of the Union prove, on the discussion of every question that has ever arisen in the House, having the most remote bearing on the giving freedom to the 101Africans in the bosom of our country, that it has excited the deepest sensibility in the breasts of those where slavery exists? And why is this so? It is, because those who, from experience, know the extent of the evil, believe that the most formidable aspect in which it can present itself, is by making these people free among them. Yes, sir, though slavery is an evil, regretted by every man in the country, to have among us in any considerable quantity persons of this description, is an evil far greater than slavery itself. Does any gentleman want proof of this? I answer that all proof is useless; no fact can be more notorious. With this belief on the minds of the people where slavery exists, and where the importation will take place, if at all, we are about to turn loose in a state of freedom all persons brought in after the passage of this law. I ask gentlemen to reflect and say whether such a law, opposed to the ideas, the passions, the views, and the affections of the people of the Southern States, can be executed? I tell them, no; it is impossible—why? Because no man will inform—why? Because to inform will be to lead to an evil which will be deemed greater than the offence of which information is given, because it will be opposed to the principle of self-preservation, and to the love of family. No, no man will be disposed to jeopard his life, and the lives of his countrymen. And if no one dare inform, the whole authority of the Government cannot carry the law into effect. The whole people will rise up against it. Why? Because to enforce it would be to turn loose, in the bosom of the country, firebrands that would consume them.”11
This was the more tragic form of the argument; it also had a mercenary side, which was presented with equal emphasis. It was repeatedly said that the only way to enforce the law was to play off individual interests against each other. The profit from the sale of illegally imported Negroes was declared to be the only sufficient “inducement to give information of their importation.”12 “Give up the idea of forfeiture, and I challenge the gentleman to invent fines, penalties, or punishments of any sort, sufficient to restrain the slave trade.”13 If such Negroes be freed, “I tell you that slaves will 102continue to be imported as heretofore…. You cannot get hold of the ships employed in this traffic. Besides, slaves will be brought into Georgia from East Florida. They will be brought into the Mississippi Territory from the bay of Mobile. You cannot inflict any other penalty, or devise any other adequate means of prevention, than a forfeiture of the Africans in whose possession they may be found after importation.”14 Then, too, when foreigners smuggled in Negroes, “who then … could be operated on, but the purchasers? There was the rub—it was their interest alone which, by being operated on, would produce a check. Snap their purse-strings, break open their strong box, deprive them of their slaves, and by destroying the temptation to buy, you put an end to the trade, … nothing short of a forfeiture of the slave would afford an effectual remedy.”15 Again, it was argued that it was impossible to prevent imported Negroes from becoming slaves, or, what was just as bad, from being sold as vagabonds or indentured for life.16 Even our own laws, it was said, recognize the title of the African slave factor in the transported Negroes; and if the importer have no title, why do we legislate? Why not let the African immigrant alone to get on as he may, just as we do the Irish immigrant?17 If he should be returned to Africa, his home could not be found, and he would in all probability be sold into slavery again.18
The constitutional argument was not urged as seriously as the foregoing; but it had a considerable place. On the one hand, it was urged that if the Negroes were forfeited, they were forfeited to the United States government, which could dispose of them as it saw fit;19 on the other hand, it was said that the United States, as owner, was subject to State laws, and could not free the Negroes contrary to such laws.20 Some alleged that the freeing of such Negroes struck at the title to all slave property;21others thought that, as property 103in slaves was not recognized in the Constitution, it could not be in a statute.22 The question also arose as to the source of the power of Congress over the slave-trade. Southern men derived it from the clause on commerce, and declared that it exceeded the power of Congress to declare Negroes imported into a slave State, free, against the laws of that State; that Congress could not determine what should or should not be property in a State.23 Northern men replied that, according to this principle, forfeiture and sale in Massachusetts would be illegal; that the power of Congress over the trade was derived from the restraining clause, as a non-existent power could not be restrained; and that the United States could act under her general powers as executor of the Law of Nations.24
The moral argument as to the disposal of illegally imported Negroes was interlarded with all the others. On the one side, it began with the “Rights of Man,” and descended to a stickling for the decent appearance of the s
tatute-book; on the other side, it began with the uplifting of the heathen, and descended to a denial of the applicability of moral principles to the question. Said Holland of North Carolina: “It is admitted that the condition of the slaves in the Southern States is much superior to that of those in Africa. Who, then, will say that the trade is immoral?”25 But, in fact, “morality has nothing to do with this traffic,”26 for, as Joseph Clay declared, “it must appear to every man of common sense, that the question could be considered in a commercial point of view only.”27 The other side declared that, “by the laws of God and man,” these captured Negroes are “entitled to their freedom as clearly and absolutely as we are;”28 nevertheless, some were willing to leave them to the tender mercies of the slave States, so long as the statute-book was disgraced by no explicit recognition 104of slavery.29 Such arguments brought some sharp sarcasm on those who seemed anxious “to legislate for the honor and glory of the statute book;”30 some desired “to know what honor you will derive from a law that will be broken every day of your lives.”31 They would rather boldly sell the Negroes and turn the proceeds over to charity.
The final settlement of the question was as follows:—
“Section 4…. And neither the importer, nor any person or persons claiming from or under him, shall hold any right or title whatsoever to any negro, mulatto, or person of color, nor to the service or labor thereof, who may be imported or brought within the United States, or territories thereof, in violation of this law, but the same shall remain subject to any regulations not contravening the provisions of this act, which the Legislatures of the several States or Territories at any time hereafter may make, for disposing of any such negro, mulatto, or person of color.”32
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