Prologue Magazine

Winter 2000, Vol. 32, No. 4

Living with the Hydra
The Documentation of Slavery and the Slave Trade in Federal Records
By Walter B. Hill, Jr.

George Washington Williams George Washington Williams's History of the Negro in American from 1619 to 1880 viewed slavery as a legal and political problem at the core of the new federal government. (Credit: author's collection)

In 1883 George Washington Williams published his History of the Negro Race in America from 1619 to 1880. Williams was a member of the first generation of African Americans to study, research, and write the history of the Negro in America. Williams's career began in the military with service in the United States Colored Troops during the Civil War, enlistment with the Army of the Republic of Mexico against the Emperor Maximilian, and further service with the Tenth U.S. Cavalry in the West. After a short academic stay at Howard University, he graduated on June 10, 1874, as an ordained minister from the Newton Theological Institute near Boston.1 While in Boston as a student and minister, Williams became active in the politics and discussion of race and democracy and established a journal to speak for the African American community. In September 1875, Williams's journal, The Commoner, appeared. Mounting debts forced its closure, and shortly thereafter in February 1876, the Union Baptist Church of Cincinnati, Ohio, called Williams to serve as pastor. There he entered into state politics, serving a term in the legislature, but soon gave it up to pursue the study of his people.

George Washington Williams must be understood as a significant figure in the evolution of the researching, writing, and interpreting the history of African American people in the United States. His book established a standard for African American history in the nineteenth century, and scholars of the twentieth century developed many of the themes he founded. He emerged as perhaps the first historian and writer of the African American experience in the last quarter of the nineteenth century to conclude that slavery poisoned the entire fabric of American society, corrupting its people and laws, setting the nation on a dangerous path to conflict, and damaging the American psyche regarding race.2 Unlike most of his contemporaries, Williams believed that the U.S. government bore much of the responsibility for the maintenance of the institution. He adhered to the ideological tradition of the Garrisonians that interpreted the United States Constitution as a protective device for slavery.3 He believed that the institution should have been abolished with the establishment of the government, thus avoiding the insidious conflict that ultimately engulfed the nation decades later. In detailing his research on the constitutional convention, he wrote

I have brought the first volume down to the close of the 18th Century, detailing the great struggle through which the slavery problem passed. I have given as fair an idea of the debate on this question, in the convention that framed the Constitution, as possible. It was then and there that the hydra of slavery struck its fangs in the Constitution; and once inoculated with the poison of the monster, the government was only able to purify itself in the flames of a great civil war. . . . Unable to destroy slavery by constitutional law, the best thought and effort of this period were directed against the extension of the evil in the territory beyond the Ohio, Mississippi, and Missouri Rivers. . . . [H]aving pledged the Constitution to the protection of slave property, it required a superhuman effort to confine the evil to one section of the country. Like a loathsome disease it spread itself over the body politic until our nation became the eyesore of the age, and a byeword [sic] among the nations of the world. The time came when our beloved country had to submit to heroic treatment, and the cancer of slavery was removed by sword.4

George Washington Williams discussed slavery as a legal and political problem for the new government. While colonists and later Americans may have differed on their views about slavery and the enslavement of Africans, the institution nonetheless operated under the guise of the colonial statutory law in the thirteen colonies before the American Revolution. In chapter 31, "Slavery as a Political and Legal Problem," Williams assessed the new government's efforts to both protect and provide some sense of a restriction for the growth and spread of slavery. He saw a government paralyzed by pro-slavery thinking and action and great national leaders and important figures unwilling to set themselves apart to denounce slavery. While he lauded the words and intent of the Declaration of Independence and the Bill of Rights, Williams also recognized that "from the earliest moment of the birth of the United States government, slavery began to receive political support and encouragement."5 He discussed the protective clauses skillfully embedded in the Constitution and the growing political and legal boundaries established by the courts and Congress to guide and protect the interests of the slaveholding class. In Williams's metaphorical style and language, politics and culture breathed the vapors of slavery and infected the entire thought and values of Americans who believed that humans could be held as property. He believed the Civil War acted as a catharsis for America and saved the nation's soul. Despite the growing contamination of society and culture, the federal government's role and position remained paramount to Williams.

Williams understood the centrality of the government and used its published records to condemn it for maintaining slavery. Modern scholars and students of slavery have the distinct advantage of using sources unavailable to Williams's generation. With the establishment of the National Archives in 1934, the documented heritage of the United States not only became permanently preserved but also opened an amazing window to scholarship and research into America's past. Federal records document the business of the governing bodies during the American Revolution, the establishment of the new official government in 1789, the evolving structure and administration of the government, and its relationships with the American people and the governments of the world. When the framers of the Constitution protected slavery, they left a paper trail that detailed the legal and political complexity of the octopus-like institution. Most agencies of the new but small and growing government had to tackle multifaceted issues posed by slavery and the international slave trade. The documentation of these actions is preserved in the records of the National Archives and Records Administration.

By the time of the American Revolution, slavery had existed in British mainland North America for a century and a half. It had become a vibrant social and economic institution, accepted and practiced in all of the thirteen colonies.6 While the Revolution centered on the struggle for independence from British rule, it had critical implications for the slave trade and slavery and the status of black people in general. As the war progressed, manumission and the status of free people became intensely discussed and debated issues. The Continental Congresses, the first formal national governing institution (First Congress: September 5 - October 26, 1774; Second Congress: May 10, 1775 - March 2, 1781), addressed the multiple issues spawned by slavery. One of the first actions regarding slavery came about in a 1774 resolution banning slave importation and forbidding Americans to participate in the slave trade.

Congress and the military command soon grappled with the recruitment and arming of blacks for the Continental Army. Blacks, free and slave, were serving in the various military organizations of the individual colonies before those who opposed their service could question their enlistment. Gen. George Washington and the military command of the Continental Army raised objections to their service, and in September 1775 the Continental Congress debated the enlistment or rejection of blacks. No coherent or consistent stance emerged; consequently, the Congress followed the policy of leaving the matter to the various colonies. Each debated the questions of whether service gave slaves their freedom and if free blacks should be allowed to serve. Slaveholders objected to any consideration of offering freedom to slaves in exchange for military service. The British use of slaves influenced most colonies to consider enlisting slaves, and by late 1775 General Washington departed from established policy of refusing enlistment of free blacks and began accepting them. He remained, however, ambivalent regarding slaves. The enlistment of free blacks and slaves remained a contested issue in the Continental Congress, and individual colonies throughout the war struggled with it because of the questions of freedom for slaves and the possible abolition of slavery. Despite this debate, more than five thousand slaves and free blacks served, with many gaining their freedom, and the Continental Congress and the Continental Army praised their service.7

The escape of slaves and the British evacuation of them emerged quickly as a contentious issue in the Continental Congress. Slaveholders from the New England, Middle Atlantic, and in particular the upper and lower southern colonies sent numerous complaints and petitions to Congress seeking redress and greater protective measures for their property. They besieged Washington with requests to assist in the reclaiming of their slaves from the British. The formal resolution of this matter in the Treaty of Paris, Article VII, prohibited the British from carrying off "negroes or other property belonging to the inhabitants of the United States of America."8

Article VII failed to resolve the contentious problem. Throughout the remainder of the eighteenth century into the first decades of the nineteenth, the two nations attempted to negotiate, make proposals, and offer compensation; however, none of these worked. At the center of the discussion surrounding the Treaty of Paris (1783) and Jay Treaty (1794) rested the question of who had legal ownership of the slave refugees removed during the war. The British held out the promise of freedom and declared that slaves who came within British lines were by the laws of war British property. The federal government held contrary views, contending that such flight failed to change their status as slaves and remove ownership from American slaveholders.9 The War of 1812 exacerbated the problem because Great Britain again issued freedom proclamations, recruited slaves to fight, and resettled them in their colonies when hostilities ceased. The dispute over property and slaves lost during the war and the issue of Great Britain's failure to honor the 1783 and 1794 treaties surfaced in the Treaty of Ghent on December 24, 1814. The two nations failed to agree on a settlement and referred to the emperor of Russia for arbitration. On April 22, 1822, the emperor ruled in favor of the United States. A mixed claims commission was established on June 30, 1822, to determine the validity of claims and adequate compensation for slave properties. Additional negotiations in 1826 led to an agreement by Great Britain to pay compensation and the establishment of a new domestic claims commission in Washington, D.C. (4 Stat. L. 219) to determine the amounts to be awarded. The commission met between July 10, 1827, and August 31, 1828. These commissions ended the long-standing dispute between Great Britain and the United States over the return of and compensation for refugee slaves.10

Discussion of the protection and maintenance of slavery emerged early in the 1787 Constitutional Convention, and slavery became one of the central points of disagreement. The abolition of slavery was ruled out, and southern delegates insisted on some protection of the institution. Consequently, the final draft of the new Constitution of the United States of America established the legal structure for slavery and U.S. involvement in the international slave trade. The always astute James Madison averted a potential fracturing of the convention and observed on May 30 that:

every peculiar interest whether in any class of citizens, or any description of States, ought to be secured as far as possible. Wherever there is danger of attack there ought be given a constitutional power of defence. . . . the states were divided into different interests not by their difference of size, by other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves. These two causes concurred in forming the great division of interests in the United States. It did not lie between the large and small states: it lay between the Northern and Southern. And if any defensive power were necessary, it ought to be mutually given to these two interests.11

On July 14 Madison would again remind the of delegates the need for compromise and acceptance of differences during a heated debate about apportionment of political power in the new Union when he wrote:

It seemed now to be pretty well understood that the real difference of interests lay, not between the large and small but between Northern and Southern states. The institution of slavery and its consequences formed the line of discrimination.12

Playing a pivotal role, Madison gave slavery serious consideration and relied on the new government to maintain a balance of power between northern and southern states.

While northern states had undertaken some degree of abolition of slavery and manumission of slaves, southern states refused to sacrifice their way of life— slavery— to the principles of freedom and democracy being embedded in the Declaration of Independence, Bill of Rights, and the Constitution. Through intense debates, negotiations, and accommodation among the delegates, slavery and the international trade were directly protected and restricted in six articles and indirectly in four other articles of the U.S. Constitution. With the protection and restriction of slavery and the slave trade firmly established in the Constitution, several executive agencies and the U.S. Congress had to establish boundaries by which the government respected the rights of Americans to hold Africans in bondage. Congressional laws would ultimately address a variety of issues directly and indirectly related to the institution and the trade. Internal and external pressures forced the government to grapple with the legal and political dynamics of slavery until 1865. That fall, Congress added the Thirteenth Amendment to the U.S. Constitution, abolishing slavery in a brief and simple statement.13

While the U.S. Constitution crafted a national scope and framework for slavery and the slave trade, Congress created the federal apparatus to handle matters arising between the federal government and the states and the American citizenry. While Congress established the first three executive agencies, State (1 Stat. L. 28, July 27, 1789), War (1 Stat. L. 49, August 7, 1789), and Treasury (1 Stat. L. 65, September 2, 1789), to manage the affairs of the new nation, the judicial branch would soon emerge as perhaps the most significant federal entity to take on the issues posed by slavery and the slave trade. The Judiciary Act of 1789 (1 Stat. 73, September 24, 1789) established the court systems and jurisdictions and created a critical office— the attorney general.

The new Congress had not legislated all aspects of slavery and the international slave trade, and when new and complex issues and questions arose, they were referred to the attorney general, who provided legal direction and instruction based on the current laws. While Congress and the courts worked to create and interpret slave laws, the attorney general provided legal guidance for the government. Could one remain a slave if taken to a foreign country? Were naval officers entitled to a share of the forfeiture of condemned slavers? What became of slaves and Africans illegally introduced into the country after 1808? Were U.S. marshals entitled to compensation for expenses incurred while maintaining custody of Africans seized from slaving vessels? Could the military and military posts assist in the detention of persons violating fugitive slave laws? Could slave owners obtain patents for inventions developed by their slaves? Could the U.S. courts prosecute foreign vessels illegally flying the American flag while participating in the international slave trade?14

The attorney general and federal judiciary responded to new and multifarious issues surrounding slavery and the interstate and international slave trade. The federal court system placed the nation on the road to a commitment to government by federal law and promoted the concept of national judicial power. The courts soon had to wrestle with questions not specifically addressed by laws, such as the status and rights of blacks, once enslaved but now living as free people in the North, and free blacks wrongfully enslaved.15

The U.S. Congress played a critical role in shaping the legal structure concerning slavery and the slave trade. Three major areas emerged early: the international slave trade, in particular the January 1, 1808, mandate that prohibited U.S. participation in it; the extension of slavery into the territories; and the status of slavery in territories applying for admission to the Union.16 While these matters loomed, the return of fugitive slaves was a persistent and major question. Urged on by petitions and memorials from American citizens, Congress moved swiftly to speak to this issue.

Congress's failure to abolish slavery spurred the flight of slaves to free states. Defenders of slavery sought stronger enforcement of the fugitive slave clause of the Constitution (Article IV, sec. 2, par. 3). That clause had failed to give Congress the authority to pass statutes to enforce the provision, and the Virginia-Pennsylvania controversy of 1788 - 1791 surrounding the return of a fugitive slave showed that states would not always cooperate. On February 12, 1793, President George Washington signed into law a bill concerning extradition of fugitives from justice and the return of fugitive slaves. Fugitive slaves remained a persistent and hotly contested issue well into the Civil War.17 The congressional compromise of 1850 over new territories enlarged the power of slaveholders to recapture runaways with the enactment of a new fugitive act. The debates that preceded and followed the enactment of that new law revealed a Congress paralyzed over the issues of slavery, and while the law emboldened slaveholders, it inspired constant attacks between pro- and antislavery forces inside and outside of the government.18

While concerned with the creation of laws to regulate the nation, Congress became a labyrinth of rules and committees designed to address the pressing issues of the day. In the first quarter of its existence, Congress received roughly ten thousand petitions. Many of these petitions were thoughtful and delineated the problems and concerns of the American people that Congress should address. The issue of slavery and the slave trade received much attention. In 1799 Absalom Jones, an African American clergyman and leader of the black Masons in Philadelphia, signed and sent a petition with fifty signatures to Congress explaining that the 1793 law requiring the return of fugitive slaves had caused severe hardships for the free and slave populations. He argued that the Constitution applied to all citizens regardless of color and that the act was "found to be attended with circumstances peculiarly hard and distressing, for many of our afflicted Brethren in order to avoid the barbarities wantonly exercised upon them, or [thro] fear of being carried off by Man-stealers, have been forced to seek refuge by flight: they are haunted by armed Men, and under colour of this law cruelly treated, shot, or brought back in chains to those who have no just claim upon them."19

As Congress responded to petitions and memorials and established legislation for the domestic institution of slavery, the government faced a far more complex international slave trade. While on circuit in 1822, Supreme Court Justice Joseph Story (1811 - 1845) wrote his opinion of the La Jeune Eugenie (26 Fed. Case 832 [C.C.D. Mass. 1822] [No. 15,15551]), an international slave trading case. He wrote that the trade was

a breach of all the moral duties, of all the maxims of justice, mercy and humanity, and of the admitted rights, which independent Christian nations now hold sacred in their intercourse with each other. . . . It begins in corruption, and plunder, and kidnapping. It creates and stimulates unholy wars for the purpose of making captives. It desolates villages and provinces for the purpose of seizing the young, the feeble, the defenseless, and the innocent. It breaks down all the ties of parent, and children, and family, and country. It shuts up all sympathy for human suffering and sorrows. It manacles the inoffensive females and the starving infants. It forces the brave to untimely death in defense of their humble homes and firesides, or drives them to despair and self-immolation. It stirs up the worst passions of the human soul, darkening the spirit of revenge, sharpening the greediness of avarice, brutalizing the selfish, envenoming the cruel, famishing the weak, and crushing to death the broken hearted. This is but the beginning of the evil.20

From 1789 to 1865, Presidents, Congress, and the courts negotiated, accommodated, and challenged other nations' willingness to participate in the trade. In the process, the U.S. Congress created a series of laws prohibiting American participation and the importation of Africans to the United States. The U.S. Constitution provided the legal framework under Article I, sec. 9, par. 1, which prohibited Congress from banning American participation in the trade before the year 1808 and made it illegal after that date. In addition to the Constitutional ban, Congress passed a series of legislative acts that prohibited any involvement of Americans in the international slave trade. Northern sentiments opposed to the trade in Congress pushed four major acts between 1794 and 1807 that restricted and penalized Americans participating in the trade.21 As a result, a series of court cases arose involving the U.S. Navy's capture and seizure of ships involved in the slave trade. The court rulings set precedents for handling future slave trade cases by placing restrictions and penalties on Americans participating in the trade. The U.S. government recognized that international law allowed other nations to participate in the African slave trade, and it determined to strictly enforce its own boundaries to attack and suppress the trade. The U.S. Navy, the Department of State, and the new Department of the Interior would play major roles in the suppression of the slave trade.22

Congressional acts made the U.S. Navy the enforcement arm of the federal government with respect to the international slave trade. A May 10, 1800, act gave the navy legal sanction to seize vessels under the American flag engaged in the trade. Acts of April 20, 1818, and March 3, 1819, allowed the navy still broader discretion. In particular, the 1819 act authorized the President "to employ any of the armed vessels of the United States in cruizing upon the coast of the United States, and of Africa, with the view of capturing any vessels employed by citizens or residents of the United States in the slave trade, and delivering over to the marshals, or other persons appointed to receive them, all negroes found on board, destined for slaves." This precedent-setting act led to financial support for the repatriation of captured Africans, greater appropriations for the navy and U.S. marshals office, and paved the way for the development of the African Squadron.23

The Navy Department also worked with the Department of the Treasury in regards to custom services at American ports. The Customs Service was established on July 31, 1789, and officially became a part of the Department of the Treasury on September 2, 1789 (1 Stat. L. 65). The Customs Service had broad powers and duties that pertained to the importation and entry of merchandise into and the exportation of merchandise from the United States. Customs collection districts were established in more than a hundred ports and were maintained by a collector, naval officer, surveyor, and other minor officials as needed. The naval officer had the responsibility of maintaining copies of all manifests and entries, estimating all custom duties, and countersigning certain accounts of the collector. The naval officer maintained manifests of both legal (before January 1, 1808) and illegal (after 1808) importation of Africans into the United States. Many of the ports stretched along the mid-Atlantic, south Atlantic, and Gulf port seaboard, where Americans routinely imported Africans to be sold into the domestic slave institution.24

The navy's role became greater with the signing of the Webster-Ashburton Treaty of August 9, 1842, which established the African Squadron. For the first time, there would now be a small but permanent fleet assigned to the West Coast of Africa. The 1842 treaty settled the long-standing northeastern boundary dispute between the United States and Canada. As a part of the settlement, provisions were made (Article VIII) for what was believed to be "the final suppression of the African Slave Trade." Great Britain and the United States of America agreed to "prepare, equip, and maintain in service, on the coast of Africa, a sufficient and adequate squadron, or naval force of vessels, of suitable numbers and descriptions, to carry in all not less than eighty guns, to enforce, separately and respectively, the laws, rights, and obligations, of the each of the two countries, for the suppression of the slave trade."25 By 1843 the U.S. Navy established the squadron with specific assignments and operations on the west coast of Africa, and on March 1, 1843, Secretary of the Navy Abel P. Upshur appointed Matthew C. Perry as the first commodore of the African Squadron (March 10, 1843 - February 20, 1845). The secretary instructed Commodore Perry to proceed to the West Coast of Africa to protect U.S. commerce and suppress the slave trade insofar as it was carried on by United States citizens or foreign ships under the U.S. flag.26

As the government moved to suppress the international slave trade, it indirectly became involved in the repatriation of African captives. With the establishment of the American Colonization Society in 1817, and the creation of Liberia and Sierra Leone on the West Coast of Africa, there developed a movement in American society to finance free blacks desirous of returning to Africa. More important for the government, Liberia became a location to resettle Africans freed through the admiralty court processes. Provisions in a March 3, 1819, act (3 Stat. L. 532) authorized the President "to make regulations and arrangements as he may deem expedient for the safe keeping, support, and removal beyond the limits of the United States, of all such negroes, mulattoes, or persons of colour, as may be so delivered and brought within their jurisdiction: And to appoint a proper person or persons, residing upon the coast of Africa, as agent or agents for receiving the negroes, mulattoes, or persons of colour, delivered from aboard vessels, seized in the prosecution of the slave trade, by commanders of the United States' armed vessels." Congress appropriated $100,000 to carry out the law.27 The Lyons-Seward Treaty with Great Britain of April 7, 1862, implemented by a congressional act of July 11, 1862 (12 Stat. L. 531), allowed mutual search rights and established procedures to appoint judges and arbitrators in the United States, Sierra Leone, and the Cape of Good Hope.28

Through the leadership of the secretaries of state, the federal government negotiated with nations of the world regarding the suppression of the slave trade. As the federal government sought to establish its hegemony in the western hemisphere, the secretary of state had to tread carefully with Latin American nations and dexterously maneuver between France, Spain, and Great Britain concerning laws and rights regarding international commerce, including the African slave trade. With Great Britain, cooperation increased as anti-slave trade sentiment grew in the British Parliament.29

By the early nineteenth century, the exchange of information on the slave trade between the secretary of state and European and Latin American governments became routine. After 1819, Great Britain's growing opposition to the slave trade set in motion a series of despatches between the two governments. Both Great Britain and the United States had denounced the trade as piracy under their laws by 1820, and the Committee on the Suppression of the Slave Trade in the U.S. Congress requested the President "to consult and negotiate with all the governments where ministers of the United States are, or shall be, accredited, on the means of effecting an entire and immediate abolition of the African slave Trade." When the major European powers— Great Britain, Austria, Prussia, France, and Russia— came together to discuss suppression of the trade, despatches between these governments increased, in particular Great Britain, and a final agreement occurred with the Webster-Ashburton Treaty of 1842. Despatches from U.S. ministers to Portugal (a major slave-trading nation) and instructions to ministers from the State Department often discussed the trade on the African coast. As Brazil grew into the dominant slave-trading South American nation, communications regarding the trade increased with U.S. consulates in Bahia, Rio de Janeiro, and Sao Salvador. U.S. ministers consistently reported slaving activities between Africa and Brazil carried on under the American flag and in U.S. vessels. The Department of State regularly transmitted instructions to its consulates in Africa, and the subject of slave trading routinely appeared in these communications. The suppression of the slave trade influenced international relationships among nations, and the department continued its activity until the trade's final demise in the late nineteenth century.30

One of Abraham Lincoln's first acts as President was a presidential order of May 2, 1861, charging the secretary of the interior with the responsibility for administering laws designed to suppress the slave trade.31 More important, the Department of the Interior was to direct the government's plans to settle recaptured Africans and free blacks in Liberia on the West Coast of Africa. The Lincoln administration initiated several colonization plans in conjunction with the American Colonization Society; however, they met with little support and received considerable criticism from governmental officials, the abolitionist community, and the black communities around the country.32

Lincoln made clear the official government position that slavery would be protected where it existed but refused to allow its expansion. The South felt that all of its institutions, in particular slavery, were threatened and challenged the government's position. With the onset of hostilities, Lincoln continued to hold firm his position, but the war unleashed unanticipated events. The war sounded the death knell of slavery, and the process of this destruction revealed a government that moved slowly but consistently from constitutional protection of slavery to outright abolition of the institution.33

Living with the Hydra, Part 2
Walter B. Hill, Jr., is an archivist and subject specialist with the Textual Reference Division, National Archives and Records Administration. He has been with NARA since 1978 and has written and worked on numerous projects relative to African American history and federal records.
Articles published in Prologue do not necessarily represent the views of NARA or of any other agency of the United States Government.
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