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Peculiar Quarantines: The Seamen Acts and Regulatory Authority in the Antebellum South

Published online by Cambridge University Press:  23 July 2013

Extract

In 1824, the American schooner Fox sailed into Charleston harbor with seasoned mariner and Rhode Island native Amos Daley on board. When officials boarded the ship, they interrogated the captain and crew before cuffing Daley and hauling him off to the Charleston jail, where he remained until the Fox was set to leave harbor. Daley's detainment occurred because 16 months earlier the South Carolina General Assembly had enacted a statute barring the entrance of all free people of color into the state. Unlike other antebellum state statutes limiting black immigration, this law extended further, stretching to include in its prohibition maritime laborers aboard temporarily docked, commercial vessels. This particular section of the law was passed on the assumption that such sailors inspired slave insurrection and thereby posed a direct threat to the safety and welfare of the citizenry. Over the course of the next four decades, the states of North Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas would join South Carolina in passing statutes, commonly referred to as the “Seamen Acts,” which limited the ingress of free black mariners. Amos Daley was only one of ~10,000 sailors directly affected by these particularly Southern regulations.

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Copyright © the American Society for Legal History, Inc. 2013 

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References

1. State v. Daley reprinted in Charleston Mercury, June 23, 1824. The following list comprises the initial state statutes against black sailors, and when I reference any of the individual Seamen Acts below, I am citing these particular statutes unless otherwise noted. Acts Passed at the Annual Session of the General Assembly of the State of Alabama (Tuscaloosa, 1838), 134–36Google Scholar; Acts of the Legislative Council of the Territory of Florida (1832), 143–45Google Scholar; Laws of the State of Mississippi Passed at a Regular Biennial Session of the Legislature, Held in the City of Jackson in January and February A.D. 1842 (Jackson, 1842), 6571Google Scholar; Acts Passed at the Second Session of the Fifteenth Legislature of the State of Louisiana: Begun and Held in the City of New-Orleans, December 13, 1841 (New Orleans, 1842), 308–18Google Scholar; General Laws of the Sixth Legislature of the State of Texas, Passed at Its Adjourned Session, Convened July 7, 1856 (Austin, 1857), 4849Google Scholar; Acts and Resolutions of the General Assembly of the State of South Carolina, Passed in December, 1822 (Columbia, 1823), 1114Google Scholar; Acts of the General Assembly of the State of Georgia Passed in Nov. and Dec.1829, 168–71; and Acts Passed by the General Assembly of the State of North Carolina at the Session of 1830–1 (Raleigh, 1861), 2931Google Scholar. No reliable statistical evidence exists with which to accurately enumerate the total number of sailors affected by the many Seamen Acts during their enforcement, although W. Jeffrey Bolster puts the number above 10,000. See Bolster, W. Jeffrey, Black Jacks: African-American Sailors in the Age of Sail (Cambridge, MA, 1997), 206Google Scholar.

2. Charleston Mercury, June 23, 1824. Daley's attorneys also argued that the Seamen Act should not apply to the sailor because he was not “black,” but rather of Native American descent. As the revised 1823 statute targeted sailors specifically “descended from negroes, mulattoes, and mustizos [sic],” Daley ought to have been beyond its reach, despite state witnesses testifying that his “wooly hair” and “dark complexion” disproved his Narragansett heritage. For the amended 1823 South Carolina statute, see McCord, David, ed., Statutes at Large of South Carolina, Volume 5, (Columbia, 1839), 220Google Scholar.

3. For examples of works relating the Seamen Acts to citizenship, see Fehrenbacher, Don, The Dred Scott Case: Its Significance in American Law and Politics (New York, 1978)Google Scholar and Allen, Austin, Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court, 1837–1857 (Athens, GA, 2006)Google Scholar. For examples of works linking the Seamen Acts to the Commerce Clause, see Morgan, Donald, Justice William Johnson, The First Dissenter: The Career and Constitutional Philosophy of a Jeffersonian Justice (Columbia, SC, 1954)Google Scholar; and Williams, Norman, “Gibbons,” New York University Law Review 79 (2004): 13981499Google Scholar. Some scholars have linked citizenship and the Commerce Clause. See, for example, Stucky, Scott Wallace, “Elkison v. Deliesseline: Race and the Constitution in South Carolina, 1823,” North Carolina Central Law Journal 14 (19831984): 361–405Google Scholar. Also, some other legal scholars have looked to the laws as a way to understand other constitutional issues, such as the treaty-making power and immigration. See Golove, David, “Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power,” Michigan Law Review 98 (2000): 1075–319CrossRefGoogle Scholar; and Neuman, Gerald, “The Lost Century of American Immigration Law (1776–1875),” Columbia Law Review 93 (1993): 1833–901CrossRefGoogle Scholar. Of course legal historians are not the only scholars to investigate the laws. For decades, the definitive work was a pair of essays in diplomatic history. See Hamer, Philip, “Great Britain, the United States, and the Negro Seamen Acts, 1822–1848,” Journal of Southern History 1 (1935): 328CrossRefGoogle Scholar and Hamer, Philip, “British Consuls and the Negro Seamen Acts, 1850–1860,” Journal of Southern History 1 (1935): 138–68CrossRefGoogle Scholar. For the Seamen Acts place in South Carolina political culture generally, see Alan January, “The First Nullification: The Negro Seamen Acts Controversy in South Carolina, 1822–1860,” (PhD diss., University of Iowa, 1976). Literary scholar Edlie Wong has used the Seamen Acts to illustrate broader themes of race and status in nineteenth-century travel literature in Neither Fugitive Nor Free: Atlantic Slavery, Freedom Suits, and the Legal Culture of Travel (New York, 2009)Google Scholar. Scholars on free blacks in general and black sailors in particular have talked about the Seamen Acts. For example, Berlin, Ira, Slaves without Masters: The Free Negro in the Antebellum South (New York, 1974)Google Scholar; Franklin, John Hope, The Free Negro In North Carolina, 1790-1860 (Chapel Hill, 1943)Google Scholar; Sterx, H.E., The Free Negro in Ante-Bellum Louisiana (Rutherford, NJ, 1972)Google Scholar; Linebaugh, Peter and Rediker, Marcus, The Many-Headed Hydra: Sailors, Slaves, Commoners, and the Hidden History of the Revolutionary Atlantic (Boston, 2000)Google Scholar; and Bolster, W. Jeffrey, Black Jacks, 198214Google Scholar.

4. Novak, William, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill, 1996)Google Scholar. Novak sought to prove that a regulatory state actually existed in the nineteenth century United States, a daunting task considering several enduring myths about the American state, or the lack thereof, in the antebellum period. Novak identified several types of regulatory law that permeated the lives of everyday Americans, from statutes securing public safety and security to codes protecting public morals and health.

5. Space constraints prevent the inclusion of a third arena of conflict that addresses the jurisdiction of regulation. This sphere concerns not if or how the sailors should be regulated, but what authority was competent to make such determinations. Questions regarding extraterritorial jurisdiction, federal relations, and local–state relations animated this particular arena. For a similar approach to local–state debates, see Edwards, Laura, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill, 2009)Google Scholar.

6. Tinkler, Robert, James Hamilton of South Carolina (Baton Rouge, 1994)Google Scholar; and Pearson, Edward, Designs against Charleston, The Trial Record of the Denmark Vesey Slave Conspiracy of 1822 (Chapel Hill, 1999), Appendix 2Google Scholar.

7. Hamilton, James, An Account of the Late Intended Insurrection among a Portion of the Blacks of the City of Charleston, South Carolina (Charleston, 1822)Google Scholar; and Kennedy, Lionel H. and Parker, Thomas, An Official Report of the Trial of Sundry Negroes Charged with an Attempt to Raise an Insurrection in the State of South Carolina (Charleston, 1822)Google Scholar. See also Wong, Neither Fugitive Nor Free, 184–96. This reading of the Vesey affair does not preclude the simultaneous apprehension that white Charlestonians maintained over local free people of color. Many of the authors cited above also harbored deep suspicions about the city's freemen. My point is to highlight the changing attitudes toward outsiders.

8. For some examples of the calls for legislative changes in the aftermath of Vesey, see Achates [Thomas Pinckney], Reflections, Occasioned by the late Disturbances in Charleston (Charleston, 1822)Google Scholar; “Memorial of the Citizens of Charleston to the Senate and House of Representatives of the State of South Carolina” (Charleston, 1822), in A Documentary History of American Industrial Society, ed. Commons, John R. et al. (Cleveland, 1910), 2:104–13Google Scholar; and Edwin Holland, “A Refutation of Calumnies Circulated Against the Southern and Western States…” (Charleston, 1822). in Denmark Vesey: The Slave Conspiracy of 1822, ed. Starobin, Robert (Upper Saddle River, NJ, 1970)Google Scholar. On the increased dangers of Atlantic abolitionism, see, for example, [Robert Turnbull and Isaac Holmes], “Caroliniensis No. 5,” Charleston Mercury, August 22, 1823 .

9. Benjamin 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 the Hon. Judge Johnson, Circuit Judge of the United States, for the 6th Circuit” (Charleston, 1823), in Slavery, Race, and the American Legal System, 1700–1872, ed. Finkelman, Paul (New York, 1988), 2:23Google Scholar; and Charleston Mercury, September 6 and 13, 1823.

10. On contagionism and epidemic disease in the early republic, see Kraut, Alan, Silent Travelers: Germs, Genes, and the “Immigrant Menace” (Baltimore, 1995), 1149Google Scholar; Howell, John H., Bring Out Your Dead: The Great Plague of Yellow Fever in Philadelphia in 1793 (Philadelphia, 1949)Google Scholar; Rosenberg, Charles, The Cholera Years: The United States in 1832, 1849, and 1866 (Chicago, 1962, 1987)Google Scholar; and several of the essays in Rosenberg, Charles and Golden, Janet, eds., Framing Disease: Studies in Cultural History (New Brunswick, 1997)Google Scholar. Also helpful is Pernick, Martin, “Contagion and Culture,” American Literary History 14 (2002): 858–65CrossRefGoogle Scholar.

11. Crocket, Hasan, “The Incendiary Pamphlet: David Walker's Appeal in Georgia,” Journal of Negro History 86 (2001): 305–18CrossRefGoogle Scholar; Eaton, Clement, “A Dangerous Pamphlet in the Old South,” Journal of Southern History 3 (1936), 325–32Google Scholar; and Cary Howard, “The Georgia Reaction to David Walker's Appeal,” (Master's Thesis, University of Georgia, 1967).

12. Robert Strange graduated from Washington College in Lexington, Virginia before his family moved to Fayetteville, North Carolina. Strange studied law there, was admitted to the state bar, and was elected to the State General Assembly in 1821. During the mid-1820s, Strange became a dedicated Jacksonian. From 1826 until 1836, he served as a superior court judge before being appointed to the United States Senate to complete the vacated term of Willie Mangum. Strange was elected to his own term in the United States Senate the next year. In 1840, he resigned rather than succumb to the dictates of the newly ascendant Whig state legislature. See Powell, William S., ed., Dictionary of North Carolina Biography (Chapel Hill, 1994), 5:489Google Scholar; and “Hon. Robert Strange,” United States Monthly Law Magazine 5 (1852): 321–22. On British acquiescence to the Georgia Seamen Act, see James Stephen to [Thomas] Lack, March 16, 1830 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, UK National Archives, Kew, England (hereafter Correspondence), 20–22.

13. Edward Rugemer has charted the “outside agitation” trope in certain spheres of United States public discourse. See Rugemer, , The Problem of Emancipation: The Caribbean Roots of the American Civil War (Baton Rouge, 2007)Google Scholar. See Tallahassee Floridian, February 21, 1832. The Florida Seamen Act was also passed in February. The term “contagion of liberty” comes from the final chapter of Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, MA, 1967)Google Scholar.

14. For Southern reactions to the Mail Campaign, see Curtis, Michael Kent, “Curious History of Attempts to Suppress Antislavery Speech, Press, and Petition in 1835–1837,” Northwestern University Law Review 89 (1995), 785870Google Scholar; and Wyatt-Brown, Bertram, “The Abolitionists' Postal Campaign of 1835,” Journal of Negro History 50 (1965), 227–38CrossRefGoogle Scholar. On Alabama's reaction, see Mansfield, Mike, “‛An Onerous and Unnecessary Burden': Mobile and the Negro Seamen Acts,” Gulf South Historical Review 21 (2005): 1415Google Scholar; Resolution passed January 9, 1836 in Acts of Alabama (1835–1836), 174–75. Other states passed similar sorts of resolutions. For example, Acts of Virginia (1835), 44–45; and Acts and Resolutions of North Carolina (1835–1836), 119–21.

15. New York v. Miln, 36 U.S. 102 (1837), 191.

16. Printed circular of Governor Thomas Bennett, August 10, 1822 in Denmark Vesey: The Slave Conspiracy of 1822, 92. William Johnson to Thomas Jefferson, December 10, 1822, from Donald Morgan, Justice William Johnson, The First Dissenter, 138. The Charleston Mercury article was reprinted in other cities. See, for example, Washington, DC's The National Era, December 20, 1855, 203.

17. Mansfield, “‘An Onerous and Unnecessary Burden,’” 21; Mobile Daily Register, December 19, 1856. For Peshall's remarks, see C[harles] J. Peshall to [Anthony] St. John Baker, December 24, 1831, in Correspondence, 37–38. Ira Berlin, Slaves without Masters, 215–16. Berlin's conclusion regarding the Upper South is likely correct. Virginia, Delaware, and Maryland never passed Seamen Acts. However, his evidence for North Carolina is faulty. Although the North Carolina Assembly rescinded the Seamen Act in 1831, Wilmington city officials enacted municipal port regulations with a mandatory imprisonment feature a decade later. A copy of the regulation can be found in Correspondence, 96–98.

18. Schoen, Brian, The Fragile Fabric of Union: Cotton, Federal Politics, and the Global Origins of the Civil War (Baltimore, 2009), 116–18Google Scholar.

19. Charleston Courier, April 11, 1826; Charleston Mercury, December 25, 1826; Alan January, “The First Nullification,” 229–32. The debate over the House bill to amend the Seamen Act occurred on December 15, 1843, and is reprinted in Correspondence, 71–74.

20. Mansfield, “‘An Onerous and Unnecessary Burden,’” 18–23.

21. Tansey, Richard, “Out-of-State Free Blacks in Late Antebellum New Orleans,” Louisiana History 22 (1981), 370–75Google Scholar. Magistrate quote taken from New Orleans Daily Delta, March 27, 1851.

22. Acts of Georgia, 1853–1854, 106–7; and Philip Hamer, “British Consuls,” 143. C[harles] J. Peshall to [Charles] Bankhead, October 31, 1831 and C[harles] J. Peshall to [Anthony] St. John Baker, December 24, 1831, in Correspondence, 31 and 37–38.

23. The most-cited scholar of the Seamen Acts, Philip Hamer concluded that British Consuls were successful in their diplomatic assault on the Seamen Acts, even though he acknowledges the statutory changes in Texas and Louisiana. See Hamer, “British Consuls,” 167. On the complex and often contradictory representations of slaves generally, see Gross, Ariela, Double Character: Slavery and Mastery in the Antebellum Courtroom (Princeton, 2000)Google Scholar; and Sarah Roth, “Rebels and Martyrs: The Debate Over Slavery in American Popular Culture. 1822–1865,” (PhD diss., University of Virginia, 2002).

24. On the limited legal remedies, see Roger B. Taney to Edward Livingston, June 9, 1832, Roll 73, Miscellaneous Letters, Records of the Department of State, RG 59, (National Archives, College Park, MD). Recently, a draft of the opinion was published by Powell, H. Jefferson in “Attorney General Taney and the South Carolina Police Bill,” Green Bag 5 (2001): 75102Google Scholar.

25. See James Stephen to [Thomas] Lack, March 16, 1830, in Correspondence, 20–22. Berrien's opinion can be found in United States Congress, House of Representatives, Commerce Committee, Free Colored Seamen–Majority and Minority Reports, 27 Cong., 3 sess., Jan. 20, 1843, 49–58. See also Schoeppner, Michael, “Legitimating Quarantine: Moral Contagions, the Commerce Clause, and the Limits of Gibbons v. Ogden,” Journal of Southern Legal History 17 (2009): 81120Google Scholar; New York v. Miln, 36 U.S. 102 (1837); The License Cases, 46 U.S. 504 (1847).

26. For a copy of Judge Strange's charge to the jury, in which he articulated this interpretation of the law, see Correspondence, 36. For a reprint of the Wilmington code, see Correspondence, 98.

27. Johnson quote found in Elkison v. Deliesseline, 8 F. Cas. 493 (1823), 496. W[illiam] Huskisson to [Joseph] Planta, February 4, 1824 and Herbert Jenner to Viscount Palmerston, March 23, 1832, both in Correspondence, 6 and 39–40. For the confidential letter to the South Carolina Governor, see Hamer, “British Consuls,” 164. A copy of the declaration issued by the joint commission in the Massachusetts General Court is reprinted in Niles' National Register, February 22, 1845, 394–399.

28. Hasan Crocket, “The Incendiary Pamphlet,” 310.

29. Calder v. Deliesseline, Harper 186 (South Carolina Constitutional Court, 1824); and James Calder to Consul Moodie, January 15, 1823 in Correspondence, 2–3.

30. See, for example, Kent Curtis, Michael, Free Speech, “The People's Darling Privilege”: Struggles for Freedom of Expression in American History (Durham, 2000)CrossRefGoogle Scholar.

31. State v. Daley was reprinted in Charleston Mercury, June 23, 1824.

32. For Fraser, see William Ogilby to C[harles] R. Vaughn, November 29, 1830, in Correspondence, 23–24. Diplomatic reverberations are found through the next five pages. For Jones, see William Ogilby to Sheriff of Charleston, November 3, 1843 and William Ogilby to Earl of Aberdeen, November 4, 1843, both in Correspondence, 62–63. For Hammond's response, see Message of the Governor of South Carolina, November 30, 1843, reprinted in Correspondence, 69. See also Bleser, Carol, ed., Secret and Sacred: The Diaries of James Henry Hammond, a Southern Slaveholder (New York, 1988), 117Google Scholar.

33. The deposition of Mary Frances Roberts was enclosed in Consul Grigg to Viscount Palmerston, January 25, 1848, in Correspondence, 113–14.

34. National Anti-Slavery Standard, October 8 and October 15, 1846; Shattock, George B., The Bahamian Islands (New York, 1905), 563–65Google Scholar; and Wong, Neither Fugitive Nor Free, 184–239.

35. Viscount Palmerston to Charles Vaughn, September 23, 1835; Charles Bankhead to Viscount Palmerston, December 5, 1835; Charles Bankhead to United States Secretary of State [John] Forsyth, November 14, 1835; John Forsyth to [Charles] Bankhead, November 20, 1835; and Charles Bankhead to Viscount Palmerston, December 21, 1835, all found in Correspondence, 47–50. In South Carolina (for a time), Florida, Texas, and Mississippi, the law permitted the courts to sentence repeat violators to enslavement. This facet of the law earned the ire of Atlantic abolitionist groups, who often proclaimed that Southern courts enslaved hundreds of sailors each year. Although court records cannot sustain them, these stories of punitive enslavement gained increasing currency in the late 1840s and into the 1850s, and swayed public opinion in parts of the North and Great Britain. See Wong, Neither Fugitive Nor Free, 183–239.

36. This analysis of the enforcement mechanisms echoes the work of Orlando Patterson. In his groundbreaking book, Slavery and Social Death, Patterson describes a process by which slaveowners took “control of symbolic instruments” that isolated the slave “from all ‘rights’ or claims of birth” or “any legitimate social order.” The state either abetted actively in this process, or removed itself from the master–slave relationship so as to render the master's control over his slave's social life complete. Symbolic actions were crucial in constructing the legal parameters of slavery and enforcing control of servile populations. The legal edifice on which slavery was sustained relied on performative practices that underscored the slave's alienation from the formal social and legal order. The stories of these sailors complicate Patterson's notion of natal alienation precisely because they were not slaves. The treatment they received was a direct function of their non-slave status. Patterson, Orlando, Slavery and Social Death (Cambridge, MA, 1982)Google Scholar.

37. The jailor's version of the events, which largely reinforce this contempt for autonomy, can be found in Message of the Governor of South Carolina, November 30, 1843, reprinted in Correspondence, 69–70.

38. Elkison v. Deliesseline, 8 F. Cas. 493 (1823). Michael Schoeppner, “Status across Borders in the Age of Emancipation: Roger Taney, Black British Subjects, and a Diplomatic Antecedent to Dred Scott,” Journal of American History (forthcoming).

39. Mathew to Malmesbury, April 24, 1852, in Correspondence, 242–44. A reprint of Pereira's petition is enclosed with Mathew to Malmesbury, May 1, 1852, in Correspondence, 255–58. Ex-Parte Pereira, 6 Rich. 149 (1853), also reprinted in Correspondence, 266; Francis C. Adams, Manuel Pereira: or, The Sovereign Rule of South Carolina with views of Southern Laws, Life, and Hospitality (Washington, DC, 1853); Roberts v. Yates, 20 F. Cas. 937 (1853).

40. This was certainly the case in Wilmington, North Carolina, where British consul Charles Peshall forced two sailors to break quarantine, and then underwrote from personal funds the suit bringing the state Seamen Act before the North Carolina Superior Court. See letters between Peshall and the British Consulate General in Correspondence, 31–36. For the story of Daley, see Charleston Mercury, June 23, 1824.

41. “Memorial of sundry masters of American vessels lying in the port of Charleston, S.C.,” Niles' Weekly Register, March 15, 1823, 31–32. “Resolutions Adopted at a Meeting of Boston Negroes, October 27, 1842” reprinted in Liberator, November 4, 1842, 174–75. The memorial to Congress is reprinted in United States Congress, House of Representatives, Commerce Committee, Free Colored Seamen—Majority and Minority Reports, 27 Cong., 3 sess., Jan. 20, 1843, 7–9. See also, Wong, Neither Fugitive Nor Free, 187–88.

42. “Memorial to his Excellency John Gregory…,” in Correspondence, 132–33.

43. “Massachusetts & South Carolina”, Niles National Register, February 22, 1845, 394–99.

44. The one instance of armed resistance by a captain was the Susan King fiasco in Wilmington in 1846, and the British Foreign Office did not condone the action. See Correspondence, 90–99. David Child quote from “Mr. Child's Speech”, Liberator, July 27, 1833, 105. “Massachusetts & South Carolina”, Niles National Register, February 22, 1845, 394–99.

45. See, for example, Curtis, Michael Kent, Free Speech, “The People's Darling Privilege”: Struggles for Freedom of Expression in American History (Durham, 2000)Google Scholar. and Eaton, Clement, Freedom of Thought in the Old South (New York, 1951)Google Scholar.

46. John Scoble to Viscount Palmerston, September 25, 1846, in Correspondence, 91–94.

47. W. Giffard Nicolas to Viscount Palmerston, May 25, 1848, in Correspondence, 122–23; and Acts of Alabama (1848), 130–31.

48. Documents regarding the Forster affair can be found in Correspondence, 47–50.

49. Philip Hamer, “British Consuls and the Negro Seamen Acts, 1850–1860.” On British views toward emancipation and colonial racial policy, see Hall, Catherine, Civilising Subjects: Metropole and Colony in the English Imagination, 1830–1867 (Chicago, 2002)Google Scholar. On public perceptions of slave character, see Roth, “Rebels and Martyrs.” On antislavery constitutionalism, see Wiecek, William, The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca, NY, 1977)Google Scholar.

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