We have already stated some of the general grounds assumed by South Carolina in the recent proceedings of her Legislature on the subject, but it may be proper, on account of the interest which this case has excited, and the consequences it is likely to involve, that we should go back to an earlier period in the legislation of this commonwealth, and review more particularly its history in reference to free negroes and persons of color. The subject has long been regarded by South-Carolina as one of much importance ;-it has repeatedly occupied the attention of the Legislature, and different acts, at different times, have been passed, varying slightly in their provisions, in order to meet a change of circumstances, but by no means altering the settled policy of the State, which, from the first, has been of the most uniform character. Whatever may have been the opinion of other States and foreign nations, in respect to her rights and duties, South-Carolina has never entertained any doubts herself as to the course she ought to pursue in this matter. She has undertaken, and still undertakes, to be the sole and final judge of her own peculiar position,-of the circumstances and dangers by which, as a slave-holding community, she is surrounded, and of the species of local legislation to be adopted and enforced by her as indispensable to the protection of the lives, the persons and the property of her citi zens. She has, in this respect, acted as a sovereign State, in the exercise of her reserved rights, as amenable to no power whatever, foreign or domestic, and she has always acted in such a manner, she believes, as sovereign States, under the circumstances, ought to do, and, so doing, has reasonably expected that all acts done by her, in that capacity, would be respected by her sister sovereigns, though in this expectation she has sometimes, without fault on her part, been disappointed. In a word, in passing the acts in question, in order to protect her slave population and the lives of her citizens, she has been influenced by a sacred regard to the duty of self-preservation,-a duty to be observed at all hazards, and one that is "paramount to all laws, all treaties, and all constitutions."

In December, 1822, an act was passed by her Legislature, prohibiting the ingress of free negroes and persons of color into the State, under severe penalties. The necessity which existed for the passage of the act, was of the most peremp tory character. Up to that period, in the history of the

country, free negroes and persons of color, coming from the North, had been permitted to enter the State, to remain as long as they chose, and to depart when they thought proper. So long as they conducted peaceably, their liberty, in these respects, was not abridged. But they did not behave peaceably. They attempted to corrupt our colored population by instilling into their minds false ideas of their duties and their station, till, by their insidious and exaggerated statements, they succeeded in exciting in the midst of this community a formidable insurrection, whose history is well known throughout the Union. Steps were to be taken of the most energetic character, and that promptly, to prevent the recurrence, in future, of similar scenes. It was then, and not till then, that the law in question was passed, and there is no civilized or Christian people who will not acknowledge that it was a prudent, a humane and necessary enactment, justified and called for by the circumstances, and fully within the powers of the State government.

Under the provisions of that act, and shortly after its passage, a colored seaman, belonging to a British vessel which had arrived in the port of Charleston, was arrested and imprisoned. The British Minister, Mr. Canning, resident at Washington, in a communication addressed to the then Secretary of State, Mr. Adams, of the 15th February, 1823, complained of the passage of that act as adverse to the interests of British commerce, denounced the arrest and detention of the colored seaman as an injury demanding redress, while, at the same time, he urgently insisted, that the general government should interfere to procure a repeal of the obnoxious law, and to prevent the recurrence of similar arrests in future. About the same time, the British Consul at Charleston sued out a writ of habeas corpus for the release of the colored seaman in question, then a prisoner in the Charleston jail, and the case having been brought for a hearing before the late Judge Johnson of the District Circuit Court of the United States for South-Carolina, the constitutionality of the law of the State was drawn in question. The Hon. Mitchell King appeared in behalf of the British Consul, and Col. Benjamin F. Hunt, then and still a distinguished member of the SouthCarolina bar, and the Hon. Isaac E. Holmes, now member of Congress from Charleston, were employed on behalf of the State. Mr. King maintained, that inasmuch as the prisoner

was charged with no crime, his confinement was a violation of the commercial convention with Great Britain. Colonel Hunt, besides arguing the question on general grounds, to which we shall shortly advert, called in question the jurisdiction of the Court, maintaining that as the State was a party, the case was not before the proper tribunal. The case proceeded, and the decision of the Judge, which is quoted as authority in the message of the Governor of Massachusetts now before us, was unquestionably against the constitutionality of the law. This decision of the Federal Judge, however, was not acquiesced in by the State of South-Carolina, and made no change in her legislation in respect to free negroes and persons of color. In pursuance of the policy she had previously adopted, and with a view to convince the Federal Government, the Federal Courts, and all foreign States and nations, that she was not disposed to recede in the least from the position she had taken,-convinced, as she was, both of its justice and necessity,-she availed herself again of the first opportunity that presented itself to enforce the law, and one occurring about a year afterwards, upon the arrival at Charleston of the British ship Marmion, from Liverpool, four colored seamen, belonging to that ship, were promptly arrested and detained in prison till the departure of the vessel, when they were released, upon the commander's paying, according to the terms of the act, the expenses of their detention. On this occasion, the commander, Petric, addressed a letter to the President of the British Board of Trade, setting forth the circumstances of the case, which he represented as a grievance, and the intelligence having been communicated formally by the British Secretary of State to Mr. Addington at Washington, the latter addressed a communication to Mr. Madison, President of the United States, in which he enters very fully into the details of the case of the Marmion, refers to the previous case, which had been the subject of complaint and remonstrance,-asserts that the law of South-Carolina, and the acts done under it, were direct and unqualified violations of the faith of treaties entered into between the United States and Great Britain and other friendly nations, and insists, in very pressing terms, on a repeal of the act. The constitutionality of the obnoxious law being submitted to Mr. Wirt, the Attorney General of the United States, he gave his opinion against it, on the ground, that it was a regulation of commerce by the State of

South-Carolina, in violation of that clause in the Constitution which confers on Congress, in certain cases, exclusive jurisdiction over that subject. These several papers, together with a letter from the Secretary of State, the Hon. John Quincy Adams, conveying, on the part of the President, a hope that the inconvenience complained of would be remedied, were transmitted to the Governor of South-Carolina, the Hon. John L. Wilson, and by him communicated to the Legislature, then in session, with a message accompanying. In his message, Governor Wilson says:

"The reflection which I have given this matter, brings my mind to the conclusion, that South-Carolina has the right to interdict the entrance of such persons into her ports, whose organization of mind, habits and associations render them peculiarly calculated to disturb the peace and tranquillity of the State, in the same manner as she can prohibit those afflicted with infectious disease, to touch her shores. The law of self-preservation derives its authority from a higher source than any municipal or international law, and it should be the first policy of government to prevent, if possible, such encroachments as eventually would lead to the injury and destruction of all the citizen holds most dear. This necessity of self-preservation is alone to be determined by the power to be preserved; it therefore rests with those whose rights are to be affected, to judge how long such laws shall exist, as were enacted for the peace and security of the community."

In a subsequent message of Governor Wilson to the Legislature, during the same session, occurs the following memorable and eloquent passage touching this subject:

"There should be a spirit of concert and of action among the slaveholding States, and a determined resistance to any violation of their local institutions. The crisis seems to have arrived, when we are called upon to protect ourselves. The President of the United States and his law adviser, so far from resisting the efforts of foreign ministry, appear to be disposed, by an argument drawn from the overwhelming powers of the General Government, to make us the passive instruments of a policy at war not only with our interests, but destructive also of our national existence. The evils of slavery have been visited upon us by the cupidity of those who are now the champions of universal emancipation. To resist, at the threshold, every invasion of our domestic tranquillity, and to preserve our independence as a State, is strongly recommended; and if an appeal to the first principles of the right of self-government is disregarded, and reasons be successfully combatted by sophistry and error, there would be more glory in forming a rampart with our bodies on the confines of our territory, than to be the victims of a successful rebellion, or the slaves of a great consolidated government."

In this message, Gov. Wilson also pointedly called the attention of the Legislature to the fact, that the British government, in its own legislation, had distinctly recognized the principle contended for by the State of South-Carolina. In December, 1778, the Roman Catholics made a protestation of their principles, on which occasion Parliament framed an oath to be taken by that body of men, excluding them from the country, under the severest penalties, provided they did not take the oath. The right of Parliament to make this enactment having been referred to the Solicitor General, that officer gave the following opinion:

"A State or Constitution has the rights of self-defence, as well as an individual; and it is competent to each community, to make such regulations and stipulate such conditions as appear, on their best consideration, to produce the greatest good, and to avert the most evil from society. For no man has a right to remain in, and be protected by the laws of, any community, that is plotting its destruction. On this simple and plain ground, I think every Legislature ought to proceed; and I trust it will be thought neither injurious to the civil rights, nor offensive to the consciences of peaceable Catholics, to comply with it. Pretending to no subtle casuistry, I cannot see how any man who can take the oath of 1778, can rationally object to the proposed oath."

This opinion of the Solicitor General, given in December, 1791, was confirmed by Mr. Charles Butler, the learned commentator on Coke upon Littleton, and Governor Wilson, in presenting this authority to the Legislature, as indicating the settled policy of Great Britain in respect to her own Catholic subjects, very pertinently insisted, that the same principle applied with still greater force to the case of persons, who might reasonably be suspected, from a repeated knowledge of past facts, to be the secret emissaries of insurrection among the slave population of the South; and that Great Britain was bound to recognize the justice and force of the same principles, when acted upon by South-Carolina, under circumstances of still greater urgency.* *

* That South-Carolina was right in passing the law in question, was, we learn, a short time afterwards, acknowledged by Great Britain herself; for Mr. Canning, then Prime Minister, having been interrogated as to whether the government intended to prosecute still further the South-Carolina matter, arose in his place, and in substance said, "That the law complained of was a local and municipal regulation of South-Carolina, essential to her own protection, with which the government of Great Britain would not interfere." And no notice has since been taken of the matter by the British government, although arrests, under the law, of colored British seamen, coming into the port of Charleston, have frequently taken place, from that time down to the present.. 35

VOL. VII. NO. 14.