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Cj c ‘■l^nu t+- 7 t^/o2-<x 
 
 THE following Numbers originally appeared in the 
 Charleston Mercury, and arc now re-published at the 
 desire of many persons, who think, that they are of too 
 much interest to remain scattered over the columns of many 
 Newspapers. The Editor has taken the liberty of making 
 a few trifling alterations, which, he hopes , the Author, 
 ( whoever he may be ) will readily excuse. The principal 
 alterations, are such, as were necessary in the change, from 
 a i Newspaper to a Pamphlet form, and in none of them , has 
 the sense, Or the style, been in the least degree varied. 
 
eavolfnttHSfo 
 
 NO. 1. 
 
 A Pamphlet has just been issued from the press of Mr. 
 
 Sebring, entitled “ The opinion of the Hon. Wil- 
 liam Johnson, delivered on the 7th of August, 1823, in the 
 case of the arrest of a British Seaman under the 3d section of 
 the State act, entitled £ An Act for the better regulation of 
 free negroes and persons of colour, and for other purposes,’ 
 passed in December last.” 
 
 It may not be generally known, that Henry Elkison, 
 the affiove named seaman, who is styled a British subject, is 
 a mulatto. But whether he was born in the island of Jamai- 
 ca, as stated by himself, or whether he be some fugitive slave 
 from a Southern State, it would puzzle any of us to say. His 
 captain, it seems", had known him several years, as sailing 
 out of Liverpool; but there was no proof, excepting the pri- 
 soner’s own affidavit, that he was born in Jamaica. In this 
 state, a black cannot make an affidavit. Admitting, how- 
 ever, that he was born in Jamaica, still that circumstance 
 does not make him a British subject. In Jamaica, “ the only 
 descendants of negroes by white people, entitled by birth, to 
 all the rights and liberties of white subjects, are such, as are 
 above three steps removed in lineal digression from the ne- 
 gro venter. All below this, whether called Mestizoes, Qua- 
 drons, or Mulattoes, are deemed by law Mulattoes.” Thus 
 then it appears, as clear as noon-day, that Henry Elkison, 
 if he were at this day in the island of Jamaica, would by 
 reason of his not being one degree removed from the negro 
 ancestor, be deemed by law, incapable of enjoying the privi- 
 leges of a British subject ; and how a man, who, by the laws of 
 that islapd, might, perhaps, be subject to be tried by the ne?_ 
 
4 
 
 gro act, by justices and freeholders, as is the law here, can 
 be transformed, into a bona fide British subject, without be- 
 ing naturalized by an act of Parliament, I am yet to learn. 
 That a negro is free, as soon as he sets his foot on the soil of 
 England, so far, as to be beyond the power of bis master , we 
 all know to be the case ; but this circumstance makes him no 
 more a British subject, than it would make the writer himself 
 a British subject by going to that country. 
 
 The view of this case, however, cannot be materially vari- 
 ed, whether we regard him, as entitled in Jamaica, to the ci- 
 vil rights of the whites, or not. The moment he touches the 
 soil of Carolina, he is as much subject to our police regula- 
 tions, and to all the disabilities of his race, as if he had been 
 born in this city. This has been the law of South-Carohna 
 from her earliest history. The different statutes which im- 
 pose these disabilities, and which, at the same time, make- 
 slavery, the fundamental policy of the state, are not of recent 
 date. Some of them have existed near a century. They are 
 all o t' British origin, and since the Independence of the Unit- 
 ed States, they have never received any alterations or amend- 
 ments, which have not recognized the same spirit and the 
 same principles. 
 
 Henry Elkison then, a mulatto, as dark as any in his Ma- 
 jesty’s West Indies, comes into this port contrary to law. He 
 is arrested by the Sheriff, for the purpose of being confined in 
 jail, until the vessel in which he came, shall be ready to de- 
 part the state. He applies to a Judge of the United States 
 Court, for an habeas corpus ad subjiciendum , and should he 
 fail in that motion, then for the writ de homine replegiando. 
 The Judge hears the case, and in a very elaborate opinion, 
 after many observations and arguments, which irresistably 
 lead the reader to suppose, that he is about to discharge the 
 prisoner, he suddenly comes to a conclusion. First, that he 
 has no power to grant the habeas corpus : and, secondly, 
 that as to the writ de homine replegiando, it was a matter of 
 course to any citizen. That he had no power to refuse it, but 
 hints extra judicially, that though it would certainly lie 
 against the vendee of the Sheriff, he had serious doubts whe- 
 ther it would be against theSheriff himself, suggesting, at the 
 same time, that the proper remedy for this black seaman, 
 Avould be trespass for false imprisonment (my blood freezes 
 
5 
 
 at the thought) against the Sheriff. The Judge Anally extends 
 no relief to the prisoner, but leaves Henry Elkison exactly 
 where he found him, namely, in the hands of the Sheriff, com- 
 fortably lodged in the jail of the district, where he will quiet- 
 ly remain until the ship Homer, which brought him into this 
 port, shall be ready to sail. 
 
 That the Judge’s final conclusions were correct, no one, I 
 believe, is disposed to deny. His opinion so far, must give 
 general satisfaction. But why his Honor should, extra ju- 
 dicially ’, give his opinion upon so delicate a subject, as that 
 which necessarily involves a question of collision between the 
 State and General Governments, when he might so easily 
 have avoided it, and when his opinion rested on grounds en- 
 tirely independent of such considerations, must be a matter of 
 surprise to most persons. There was not the least necessity 
 for his deciding upon the constitutionality of the State Act. 
 Still less was it necessary, for him, to introduce such a mass 
 of extraneous matter as is contained in this opinion, and there- 
 in to depict in colors, the most odious and frightful, an en- 
 actment of the Legislature of his native State, than which 
 none can possibly be more important, as none certainly will 
 conduce more to the quiet and good order of the State. The 
 case before him, lay in the narrowest compass possible. The 
 merits of the motion were in a nut-shell. He denies the ha- 
 beas corpus , because the 14th section of the Judiciary Act of 
 the United States expressly restrains him, and he decides, he 
 is not at liberty to refuse the other antiquated writ, not be- 
 cause the State Act was unconstitutional, but because, being 
 a writ infavorcm libertatis, the petitioner might sue it as a 
 matter of course, as he could any other writ. 
 
 Here, then, tvas an admirable opportunity for any man, who 
 enters into the sympathies and feelings of his fellow-citizens, 
 (and they are holy sympathies) to have steered clear of a sub- 
 ject, on which, whatever might have been his private opinion, 
 there was not the least necessity for expressing it. This opi- 
 nion formed no part of the grounds of his decision. His duty 
 I aver, did not necessarily demand from him, any considera- 
 tion of the question of constitutionality. Neither was it a 
 part of his duty to reflect upon the Legislature, or to hint 
 what he conceives to be an untimely exhibition of legis- 
 lation and zeal’’ acting by means and mettsures, which he 
 *1 
 
6 
 
 makes out by an ingenious mode of reasoning to be absurd in 
 the^xtreme. As he could give no relief, or take no jurisdic- 
 tion, why not have stopped prudently at this point. As his 
 grounds were purely legal, nothing would have been easier, 
 than to have expressed his unwillingness, to enter upon a 
 question, which, at all times, and under any circumstances, 
 must be painful to any Judge, or to any man who is born in 
 the Southern States. 
 
 It may be said, that the Counsel for the prisoner, took the 
 ground of the State having transcended its powers in pass- 
 ing the Act. This is true. But the Judge is not bound to 
 notice arguments of Counsel, of which the question is unem- 
 barrassed. More especially, when, by so doing, he would 
 have to express sentiments and opinions, which I hope and 
 trust, will for ever be uncongenial to the citizens of this 
 State — sentiments and opinions, which never can do the 
 least possible good, but the publication of which may be 
 productive of serious and incalculable mischief, to the parti- 
 ticular community in which we live. 
 
 no. a. 
 
 I. have stated, that much of Judge Johnson’s opinion, was 
 unnecessary and irrevelant, and I have hinted, that the ex- 
 traneous matter contained in it, was improper for publica- 
 tion. It has been said, and I believe, upon undoubted au- 
 thority, that this opinion was in the hands of the Editor, of 
 one of our Gazettes, who respectfully suggested to the Judge 
 fys doubts as to the propriety of giving it more publicity than 
 it had already received, and who finally declined inserting it 
 in the columns of his paper. The opinion, however, now 
 appears in a pamplet form and is advertised for sale. By 
 whose authority it is published does not appear. Like any 
 other pamphlet, I presume, every citizen who purchases it, 
 has a right to remark upon it, without being charged with 
 (disrespect to the Court. It is far from my intention to with- 
 hold from the Judges of the land, the respect due to their sa- 
 cred characters. In the pure and upright administration of 
 justice, is to be found not the form, but the very substance of 
 
7 
 
 rational freedom. Their decisions on subjects referred to 
 them, must, and I trust, will forever be held sacred. I am 
 sensible that no one has a right to canvass or discuss them in 
 the columns of a newspaper ; and, so determined am I, to ad- 
 here to this course, that nothing would induce me, whatever 
 might be my opinion, to remark upon an opinion of the 
 Bench, judicially delivered. But such parts of a Judge’s opi- 
 nion, as are extra judicial, (and I hold every thing to be ex- 
 tra judicial which does not form a ground of the decision) I 
 do deem to be a fair and a fit subject of criticism and remark. 
 Added to this, when a law of the State, in which I live, and 
 may probably die ; I and my friends and relatives, all most 
 dear to me — a law which the Legislature of our country 
 deliberately passes, to secure the quiet and security of us all, 
 is animadverted on with severity, and such a view taken of all 
 its wholesome provisions, as has a tendency to bring my 
 country into contempt at home and abroad — when this view 
 forms no part of the legal or other grounds of the decision — 
 when sentiments of this tendency are uttered from the Bench, 
 which the case before the Court does not demand, I conceive 
 
 I have the right, and it is a right which as a freeman of South- 
 Carolina I will always exercise, to remark freely upon any 
 decision thus circumstanced. It is as much my duty to vin- 
 dicate my country, from what I conceive an unprovoked and 
 unmerited' imputation cast upon her extra judicially, from the 
 Bench, as if it came from any other quarter. 
 
 The most prominent part of the publication before us, is 
 the commencement of the Judge’s view ^qf the State Law. 
 The Judge says — “ The object of this law, and it has been 
 “ so acknowledged in argument, is to prohibit ships coming 
 “ into this port from employing colored seamen,* whether 
 <( citizens or subjects of their own government or not. But 
 
 II if this State can prohibit Great Britain from employing her 
 tl colored subjects, (and she has them of all colors on the 
 (i globe) or if at liberty to prohibit the employment of her 
 “ subjects of the African race, why not prohibit her from 
 “ using those of Irish or of Scottish nativity ; if the color of 
 “ his skin is to preclude the Lascar, or the Sierra Leone sea- 
 “ man, why not the color of his eye or his hair exclude from 
 
 * The words of the Act are “ persons of color.’ 4 
 
(\ 
 
 o 
 
 (l our ports the inhabitants of her other territories ? In fact it 
 “ amounts to the assertion of the power to exclude the sea- 
 “ men of the territories of Great Britain, or any other nation 
 “ altogether. With regard to various friendly nations, it 
 “ amounts to an actual exclusion in its present form. Why 
 “ may not the shipping of Morocco or of Algiers cover the 
 c< commerce of France with this country, even at the present 
 <l crisis ? Their seamen are all colored, and even the State of 
 w Massachusetts, might lately, and may perhaps now, expedite 
 * to this port a vessel, with her Officers Black , and her crew 
 Ci composed of Nantucket Indians, known to be amongst the 
 £< best seamen in our service. These might all become slaves 
 “ under this act.” 
 
 What I ask is the meaning of the foregoing sentences ? It 
 is neither more nor less, than that the law in its present form, 
 that is, in forbidding the ingress of :i persons of color” ex- 
 cludes the subjects of Morocco and of Algiers and the Nan- 
 tucket Indian seamen from coming to our shores. That all 
 these persons, in a word, would be liable to be seized under 
 the Act, as persons of color , and sold as absolute slaves. If 
 this be not the clear meaning of the Judge, or if it is possible, 
 for human ingenuity, to annex to his words any other mean- 
 ing, then, the simplest and the plainest words in our language 
 have no signification, and there is no longer use for a lan- 
 guage The words of the Judge are emphatic — “ With re- 
 gard to various friendly nations,” says he, “it amountsto an 
 actual exclusion in its present form.” What, amounts to an 
 exclusion ? The Law in its present form. Exclusion of 
 whom ? The friendly Moors and Algerines, and also the 
 Nantucket Indians, who might now be on their way hither. 
 These, says he, might all become slaves under this Act. 
 
 Here then is an opinion, extra judicially expressed, that 
 under our Law in its present form, the Moor, the Algerine, 
 and the Nantucket Indian sailor, may betaken up as persons 
 of color and sold as slaves. This opinion, in a pamphlet it 
 must be remembered, is not to be confined to Charleston. It 
 will probably go to Washington, and from thence to the Brit- 
 ish Cabinet, after going the rounds of the Northern States. — 
 Will not then our State abroad suffer in her reputation, when 
 this is declared to be the law of this land ? Is not the very 
 assertion calculated to produce, in Massachusetts, the greatest 
 
9 
 
 possible feeling and excitement against us, when a Judge 
 from the Bench of the United States, tells them, that their 
 Indian seamen of Nantucket, whom he values as amongst 
 the best seamen in our service, may, on their landing here, be 
 taken and sold as slaves ? But how, my fellow-citizens, stands 
 the fact ? The assertion I aver, is destitute of foundation. It 
 is an unprovoked and unmerited reflection on the State. It 
 is a libel on our jurisprudence and our laws, for any man to 
 assert, be his station or character what it may, that any of the 
 above named persons could be seized as persons of color. — 
 I do sincerely believe, that since Carolina was first settled, it 
 never was heard of, or supposed, that any person could be 
 subject to our laws but the descendants of negroes. A free 
 North American Indian, a Lascar, an East Indian, a Hin- 
 doo, or a Moor, may traverse our streets unmolested by the 
 patrol or night guard ; may give evidence in our courts of jus- 
 tice, and claim the same right to trial by jury, &c. as our 
 white citizens can claim. It was only the other day, that a 
 Lascar in this city, gave his evidence in our State Court, on 
 a criminal prosecution against a white man. Our Courts 
 have decided, that none of these persons, (particularly free 
 Moors) were ever contemplated as coming within the mean- 
 ing of our laws to regulate the conduct of our negroes, or 
 persons of color. Every day persons of color, whose blood, 
 on the mother’s side, is Indian, are exempted from the state 
 tax imposed upon persons of color, and allowed many of 
 the privileges of white men. There is not a student of law; there 
 is scarcely a citizen, who is ignorant, that the only persons not 
 black, who come under the operation of our negro acts, as they 
 are called, are Mulattoes and Mestizoes, and their descendants. 
 Even Mestizoes are exempted occasionally, on proof of the mo- 
 ther Jjeing a free Indian. The maxim of the civil law, partus 
 sequitur ventrem, is expressly incorporated into our code noir 
 by a very old statute, and forms the foundation of the dis- 
 tinction in all these cases. The term “ persons of color,” is 
 a term of as settled signification and import as any to be found 
 in our laws, or in common parlance. It is a term in general 
 use all over the West-Indies, and is never applied to any per-' 
 sons but those of mixed blood, and who are descended from 
 negroes. The different classes and varieties are differently 
 discriminated in the different islands. According to Bryan 
 
10 
 
 Edwards, than whom there cannot be a higher authorit}', 
 persons of color are known in the British West-Indies by the 
 names of Samboes, Mulattoes , Quadroons and Mestizoes . — 
 Among the Spaniards, the distinctions are nicer, and more 
 numerous. Don Antonio de Ulloa, in his description of the 
 inhabitants of Carthagena, ranks them as Mulattoes, Terce- 
 rones, Q&urterones , Quinterones, &c. &c. The French also 
 have their distinctions, which do not vary considerably from 
 the British or Spaniards. But in each, and all of the islands, 
 all these persons are comprehended in- one class, and this 
 class, by general consent, is called, “people or persons of 
 color ' It is a generic, term, the most comprehensive that can 
 be used, because it includes the descendants of negroes to the 
 thousandth generation. Our Legislature has used it of late 
 familiarly, no doubt for the very reason, that as it is the most 
 comprehensive, embracing all the varieties of the Mulatto 
 tribes, so it must be the most appropriate. 
 
 How strange then, that a Judge of the United States, who 
 has been bred at our bar, and who ought to know the deci- 
 sions of our State Courts, and the meaning of a term in such 
 use in all states in which slavery exists, much better than the 
 humble unaspiring writer of these lines; how strange, I re- 
 peat, is it, that it should be proclamed from his seat on the 
 Bench, that a Lascar, that a Moor, and last of all, that a 
 Nantucket Indian seaman, in whose veins flows the blood, 
 not altogether of Pocahontas, of which John Randolph is so 
 proud, but the blood of the aboriginal of the forest, pure and 
 as free as the air which he breathes, can betaken up in South- 
 Carolina as a person of color ; and, without the form of a trial, 
 sold and deemed a slave forever. Shall an assertion so 
 groundless as this ; shall an imputation so dishonorable, go 
 forth with this pamphlet to the world as the law of South- 
 Carolina ? Never, I trust, whilst a pen can be wielded by 
 Caroliniensis. 
 
 NO. 3 . 
 
 The Judge, in the pamphlet before us, not satisfied with 
 giving the dreadful picture of South-Carolina legislation pre- 
 sented in my last number, takes another view of the State 
 
11 
 
 Act equally as odious. He tells us, that the offence for which 
 the colored seaman is to forfeit his freedom, is simply, that of 
 coming into port in the capacity of a seaman — that if the 
 captain refuses to carry him away agreeably to the directions 
 of the Act, or is desirous, from caprice or selfish motives, to 
 doom him to slavery, that it is in his power so to do — that he 
 then, without the form even of a trial, becomes an absolute 
 slave, though his removal from the State depends not on him- 
 self, but on his captain — that the forfeiture of freedom is in- 
 curred by the single act of coming into port, and this even 
 though driven in by stress of weather, or forced by a power 
 which he cannot control, into a port for which he did not 
 ship himself. The law, says the Judge, contains no excep- 
 tion to meet such contingencies. 
 
 A miserable portrait, indeed, is this of Carolina legislation, 
 and of Southern policy ! A poor hard-working mariner, after 
 braving the dangers of the ocean ; after hair-breadth ’scapes 
 from pirates and murderers ; after encountering hardships in 
 every form, comes into our port hitherto so hospitable, or is 
 driven hither by the merciless winds and waves, with his lit- 
 tle treasure, and his hopes stranded on the sands. In either 
 event, says our Judge, “ if his captain finds it his interest or 
 his pleasure to get rid of him and of the wages due him, his 
 fate is suspended upon the captain’s caprice in this particu- 
 lar,” and he may be sold as a slave. Can this be so, my fel- 
 low-countrymen ? Is there such a law on our statute book ? 
 Is there no relief? The Judge says none. Forbid it Heaven ! 
 I would not live in a country so palpably and barbarously 
 Unjust. What ! To have a man’s liberty cloven down, be- 
 cause shipwreck has cast him out upon us. The Arabs of 
 the Great Desart, described by Riley, are not worse than 
 this — their captives have a Herald of Mercy at Mogadore. 
 
 “ Is there not some hidden curse. 
 
 Some chosen thunder in the stores of Heaven 
 Red with uncommon wrath” 
 
 to blast the land that would deal so cruelly with the sons of 
 misfortune. But it is not so. There is not, my fellow-citiz- 
 ens, the least ground for such an opinion. To give such a 
 construction is not to do violence to the intentions of the mefi 
 
12 
 
 who framed this law, for it is known they had no such in- 
 tention ; but it is an act of gross injustice to them, to say that 
 their words have any such meaning. 
 
 The mistake into which the Judge has precipitated him- 
 self, is to my mind clear and obvious. It does not appear, 
 that he had before him any other Act, than the Act of the 
 last session, Dec. 21 , 1822 , for I do not perceive that he 
 makes a single remark on the Act of Dec. 20 , 1820 . To 
 see the real intentions of the Legislature, the two Acts 
 must be taken in connection. They cannot possibly be se- 
 parated in the case before us, if a right construction be 
 desired : for though it be true, as stated by the Judge, that 
 on the refusal of the captain to carry away the colored sea- 
 man, he becomes subject to a fine, and the negro is to be 
 sold as an absolute slave ; yet it is manifest that he cannot 
 be sold but in conformity to the provisions of the Act, pass- 
 ed Dec. 20 , 1820 . The words are 11 and sold in confor- 
 mity to the. provisions of the Act passed on the 20 tli Dec. 
 1820 , aforesaid .” The connection then, between the two 
 Acts, is now evident. He is to be sold in conformity to a 
 previous Act. What are the provisions specified in this Act 
 of 1820 ? They are specified and are these : — “Any free 
 negro or person of color coming into the State, contrary to 
 the Act, is to be apprehended and carried before a magis- 
 trate, which magistrate examines him and orders him to leave 
 the Slate. If, after such an order, he remains in the State 
 longer than fifteen days, or having left the State returns to 
 the same, (unless it be in consequence of shipwreck , or some 
 unavoidable accident) upon proof of his so returning, he is 
 subject to a fine of twenty dollars, and in default of payment 
 may be sold after ten days notice, for a term not exceeding 
 five years ; and this penalty is to be repeated, if he does not 
 depart within ten days after payment of the fine, and so on.” 
 The Act of 1822 increases the penalty in the case of seamen, 
 so far as to direct an absolute sale instead of a sale for a term 
 of years, probably on account of the greater facility afforded 
 to these people in coming here. But, in every other respect, 
 the provisions to be complied with are the same. They are 
 plain and specific ; and how a construction to one Act could 
 be given without taking up the other, is not for me to say. — 
 Had the Judge considered the two Acts in connection, for 
 
13 
 
 die reasons above stated, he also would have seen, that the 
 case ol shipwreck is provided for. But admitting that 
 nothing was said of unavoidable accidents, can it be con- 
 tended that a man driven upon our coast by a storm, can 
 be said to migrate, or arrive here, or that “ a vessel can 
 be said to come into the port,” within the meaning of the 
 Act. To use against him, the Judge’s own words, in anoth- 
 er place — “ It is not too much to say, that it will not bear 
 argument.” It is to tear up root and branch, every accus- 
 tomed rule of construction. 
 
 I think then, I have shewn, that our Legislature have not 
 been so stupid and careless, or even so unreflecting, as those 
 who may read the Judge’s pamphlet may suppose. If the 
 Judge has not seen the law in the light that it was viewed by 
 those who framed it, I think I have shewn, that the fault was 
 not theirs, but his. 
 
 The Judge in his opinion, goes on to treat the Act in ques- 
 tion, as manifestly absurd in its provisions, and as defeating 
 its own ends. He says — If the policy of the law be, to keep 
 persons of color from holding communion with our slaves, it 
 pursues a course inconsistent with its object, because, says 
 he, the penalty which it inflicts on those who come here con- 
 trary to law, is to domesticate them, by being sold here, and 
 thereby introduce the very wild beasts into our streets, that 
 we were anxious to keep out. This mode of reasoning, I 
 confess, is as novel to me, as it is ingenious. I suspect, that 
 neither the Judge, nor 1, will ever live to see an example of 
 it in practice. To suppose, that amongst the many hundreds 
 of colored people, who come to this port from the North, and 
 elsewhere, as stewards, cooks, and mariners, all of them, no 
 doubt well disposed to enlighten the benighted minds of our 
 slaves upon certain subjects, and most of them prepared and 
 instructed to do so, by the fraternity they leave behind them ; 
 to suppose that these people, who are in the enjoyment of li- 
 berty, the liberty too, of going to and fro without molestation, 
 in employments peculiarly suited to their habits and inclina- 
 tions, should willingly incur the high penalty of slavery , 
 merely, as the Judge says, that their facilities of doing mis- 
 chief might be thereby increased, is to look for that, which 
 probably never will happen, until some great revolution in 
 the nature of man shall take place, certainly not in my power 
 2 
 
14 
 
 to foresee, however it may be within the prescience of others, 
 better gifted than myself. With all due deference to this opi- 
 nion from the Bench of the United States, thus extra judicial- 
 ly expressed, I would say, that this is a species of domestica- 
 tion, which the colored citizens of theNorth, would rather be 
 excused from accepting, upon any terms ; and I would add, 
 with deference to the same authority, that the Legislature of 
 South-Carolina have rather a better knowledge of these mat- 
 ters than some folks are willing to allow them. The Act, I 
 think, an excellent Act, admirably adapted to attain its end 
 and object. It is now in full operation, and I understand 
 from those who ought to have some knowledge of the sub- 
 ject, that the strict execution of this Act, is at this moment 
 producing the happiest effects in our community; and that 
 the probability is, that in a few months, perhaps weeks, the 
 intercourse which is now maintained with the North, through 
 this most dangerous class of strangers, will be entirely at an 
 end. 
 
 170 . 4 „ 
 
 I proceed to vindicate the Legislature from another charge 
 extra judicially made by the Judge, in the opinion, or pam- 
 phlet before us. 
 
 In the third page he sa3 r s — “ I felt confident, that the Act 
 had been passed hastily and without due consideration ,” — 
 and again in the eleventh page — “l am firmly persuaded, 
 that the Legislature of South-Carolina, must have been sur- 
 prised into the passing of this Act.” Now, let me call the 
 attention of my fellow-citizens to the peculiar circumstances 
 under which our Legislature last met at Columbia. The oc- 
 currences of the last summer are too well known to be dwelt 
 on in this place. The sensibility which those occurrences 
 produced; had not subsided at the meeting of the Legislature. 
 On the contrary, many circumstances conspired to increase 
 it. A memorial from this city, couched in strong language 
 and suited to the crisis, demanded of the constituted authori- 
 ties a new and more vigorous policy. The delegation from 
 the city had been previously convened, that by a proper un 
 
15 
 
 derstanding, their efforts should be more systematical, and of 
 course more successful. The Governor made these occur- 
 rences the subject of a distinct message, well remembered. — 
 The members in fact, met under feelings of a peculiar cha- 
 racter, and the sense, that something ought to be done, was 
 general, not in our community only, but in the State at large. 
 Under the influence then, not of passion, or undue excitement, 
 but of a temperate, a settled and a deliberate conviction, in 
 the minds of all, that our code must be revised, and our laws 
 amended, the Dill was introduced, which has since become 
 the subject of the Judge’s animadversion. This Bill, I re- 
 member, was before the House near ten days. Clause by 
 clause was discussed with a spirit and an eloquence suited to its 
 importance ; mail after mail brought to us the eventful pro- 
 ceedings of the House, and the notices of the sentiments, and 
 the speeches of the members; and .yet, the author of this 
 pamphlet before us, undertakes to assert, and with confi- 
 dence too, that the Legislature of his country, acted hastily , 
 and without due consideration, and that they must have been 
 surprised into the passing of the very act, the consideration 
 of which was the subject of animated discussion, and occupi- 
 ed so great a portion of their time. Is this treating the Re- 
 presentatives of the State with a respect due to their charac- 
 ters, and to the high and important business upon which they 
 were convened ? But this is not all. The author of the pam- 
 phlet insinuates and hints, that all this was an exhibition of 
 legislation and zeal, not demanded by any necessity he could 
 see. After making out all the provisions of the law to be ab- 
 surd, and the Act a felo de se, he says — “ On the fact of the 
 necessity for all this exhibition of legislation and zeal, I say 
 nothing. I neither admit nor deny it. In common with 
 every other citizen, I am entitled to my own opinion : but 
 when I express it it shall be done in my private capacity.” — 
 Now I beg to be understood, that I would scorn to give a 
 writer’s words a construction which is unwarrantable or un- 
 fair, for my motive is public, and not personal. But I ask, 
 my readers, whether by every fair mode of construction, as- 
 sisted as the passage is by the context of the whole pamphlet, 
 and its distorted views of things, the above be not a palpable 
 hit at the Legislature and the community ? If it is not an in- 
 sinuation, that there was useless legislation at Columbia 
 
I 
 
 16 
 
 Upon the causes of the occurrences of the summer, and useless 
 zeal here in Charleston, or elsewhere in the State, what then 
 is it ? It clearly must mean something, or it means nothing. 
 To suppose the latter is absurd. Judges are not apt to insert 
 in their loritten opinions to be published to the world, para- 
 graphs which are senseless. If the Judge was of opinion, that 
 all the legislation and all the zeal was right and proper, there 
 could be no harm in thinking, or even in saying so. But if 
 he was so unfortunate (a misfortune truly) as to differ from 
 his fellow-citizens on this subject, there was great need of 
 caution in expressing himself, if he meant to convey the idea 
 that he had a private opinion on that point, different from 
 theirs, but would keep it to himself. But why declare at all 
 that he had an opinion upon such a point, but was unwilling 
 to express it ? Nothing in the case called for this observation : 
 no person demanded of him to admit or deny, whether such 
 was his opinion. Who could have dared to do this? It is 
 then, as I conceive, a palpable insinuation, reflecting upon the 
 community, and as a citizen of this community, I repel it. — 
 An insinuation is at all times worse than a direct open charge. 
 Is it the tooth of the serpent which inflicts the mortal wound ? 
 or is it the deadly poison under its tongue, which insinuates 
 itself into the vital fluid, and stops at once the springs of 
 life ? 
 
 I will now pass to other parts of the pamphlet, which re- 
 flect, as I conceive, upon the authorities of my country, and 
 these consist in extrajudicial mis-statements which I propose 
 to correct. The Judge, after giving an account of what pass- 
 ed between himself and the British Consul, and the Northern 
 Captains last winter, (when many arrests of colored people 
 took place under the Act) and of the influence he had over 
 them, in causing them to suppress their complaints, and of his 
 instructing Mr. Gadsden, the District Attorney, to make ap- 
 plication to the State authorities, and respectfully too, (as if 
 Mr. Gadsden needed any instruction on this head) then pro- 
 ceeds to assert, that on application to the State authority, the 
 men were relieved, but that the ground of relief was not in its 
 nature general or permanent. I must be permitted to deny 
 that any relief was ever given by the State authority. In all 
 or most of the cases, as 1 understand, there was no relief giv- 
 en, if it can be called relief, further, than that the Sheriff on 
 
17 
 
 being importuned, might have used his discretion, in giving up 
 the men some little time before the vessel sailed, or he might 
 have detained some a very short time in confinement : but 
 there was no relief regularly given by any Judge of the land, 
 as I can learn. In the case of the steward of the Georgia 
 Packet, Capt. Bunce, which was decided by a single Judge at 
 Chambers, an appeal was made to the Constitutional Court. 
 There was there a difference of opinion, and as all the Judges 
 of the State were not present, there was no judgment pro- 
 nounced. So that it is yet sub judice. Bunce’s steward 
 went with the vessel, but was not relieved. He took nothing 
 by his motion. The importance of correcting this mis-state- 
 ment will be seen by turning to another part of the pamphlet, 
 in which the Judge conveys the idea, that the reason why 
 there were no prosecutions after February, was, that the State 
 officers, after they understood that the law was complained of 
 on the ground of its unconstitutionality, and of its injurions 
 effects upon our commerce, were willing to let the law go to 
 sleep, and by way of strengthening this view of the case, he 
 notices the circumstance, of the Attorney General not ap- 
 pearing in the present case, in defence of the State Act, and 
 on the opposition to the discharge of the prisoner being con- 
 ducted by Mr. Holmes, Solicitor to the (South-Carolina) 
 Association. Now, I believe, that the true reason why there 
 were no more prosecutions between F ebruary and August, 
 was not because the State officers thought the Act improper 
 or unconstitutional, but because the Sheriff, not having the 
 cases reported to him as usual by the Harbor-Master, whose 
 duty it was under the Act to do so, did not feel it incumbent 
 on him to proceed any further ; and the reason why the Har- 
 bor-Master discontinued his reports to the Sheriff, simply 
 was, as I understand, that he was a City and not a State of- 
 ficer, and felt reluctant to perform a duty imposed on him, 
 for which no compensation was provided by the Act. 
 
 As to the Attorney General’s not appearing on the occa- 
 sion in defence of the State law, it certainly was not his duty 
 so to do, until called upon for that purpose. If any person 
 had a right to make a call on him for his services and assist- 
 ance, it certainly was the Sheriff. Did the Sheriff demand 
 of him his assistance as counsel? I do understand not. Then 
 how can it be said, that the State officers were willing to let 
 
the matter sleep. The law, it is true, did go to sleep, and it 
 slept for the same reasons, that many other laws upon the 
 the same subject sleep. They sleep, because the officers (I 
 mean no offence) whose duty it is to enforce them, neglect so 
 to do. As to Mr. Holmes’ conducting the opposition to the 
 discharge of the prisoner, the Judge neither knew, nor could 
 he know, that he appeared otherwise, than as he himself stat- 
 ed in Court. The South-Carolina Association was not before 
 the Court ; had not been there named by any one, and 
 the Judge had no more right, in his written opinion, to call 
 Mr. Holmes, Solicitor to the Association, than he had a right 
 to call out the names of any other officer of that respectable So- 
 ciety of citizens. Some of my readers, may think, that I am 
 noticing a trifling circumstance, in saying, the Judge had no 
 right to call names in Court, of persons not before him, in any 
 Of the proceedings. But they will cease to think so, when 
 they recollect, that the sentiment improperly ascribed by the 
 Judge, toMr.HoLMES, (as will be shewn hereafter) may with- 
 out much difficulty be put upon the Association. As I regard 
 this Association as an useful body of men, having no other 
 views, than to aid the execution of the laws, and, as my ob- 
 ject in these essays is, to vindicate my country, and its laws, 
 and any of the institutions connected with its peace and hap- 
 piness, I could not pass unnoticed, a circumstance, which 
 ingenuity might convert into a reflection on that band of pa- 
 triots and of gentlemen. This tribute is due from one, who 
 knows personally most of its members, and would gladly be 
 enlisted under their banners. 
 
 I come now to the sentiment ascribed by the Judge, to Mr. 
 Holmes, eo nomine. This sentiment, (in the concluding pa- 
 ragraph of his speech) as can be attested by many who heard 
 it, was used altogether hypothetically. After drawing a pic- 
 ture of the calamities, which ultimately awaited our State, 
 should she be deprived of the right of prohibiting free persons 
 of color, from migrating and flocking hither, from all parts of 
 the world ; after shewing, in a philosophical manner, that 
 the destruction of this species of property was inevitable, and 
 that this property gave strength and stability to the State, he 
 concluded his speech, by remarking, that in the dreadful hour 
 of peril and of trial, which he hoped would never arrive, the 
 people of Carolina, rather, than calmly look on, and see their 
 
19 
 
 iives jeopardized, their houses in flames, their slaves in arms, 
 and their very existence threatened, would see the pillars of 
 the government crumble into ruins- This was the exact sen- 
 timent delivered by this young man, and not the one so un- 
 qualifiedly stated by the Judge. But now I put it to my fel- 
 low-citizens, and to the world, to tell me, in what portion of 
 the habitable globe, in which civilization and refinement 
 reign, or civil liberty Fears her head, it was ever required of 
 a Judge, as a part of his duty, to seize hold of a sentiment ex- 
 pressed by Counsel, irrelevant to the point, finally decided, 
 and not censured at the moment, and to make it the subject 
 of a judicial remark, in a written opinion. I protest, my 
 countrymen, against this, as contrary to all rule and all pro- 
 priety ; as unprecedented in practice, as it is unfair in prin- 
 ciple : as cruel as it is ungenerous. If, all the sentiments of 
 Counsel, uttered in the w'armth of the imagination, in the fer- 
 vor of declamation, or in the zeal or heat of discussion, are to 
 be stated on the briefs, and remarked on (extra judicially too) 
 in the written opinion of Judges, and blazoned to the world 
 in pamphlets, where is the Veteran of the Bar, whose locks 
 are silvered with his years ; who is he, into whose mind, pru- 
 dence and discretion have poured their choicest gifts, that can 
 possibly escape censure ? I protest against it, as infringing 
 the privileges of the Bar ; as limiting the range of the imagi- 
 nation ; as cramping genius, and, as one of the many means, 
 which might be contrived to fetter the intellect of man. Shall 
 the Barristers of the Court, after the manner of the Locrians 
 of old, address the Bench, with halters around their necks ? 
 Or, shall the walls of the Federal Court Room, be hung with 
 the tapestry, and the pictures of the chambers of the Holy 
 Inquisition, that with racks and tortures before their eyes, 
 the advocates should weigh nicely, as in a balance, their 
 words, before they venture to utter them ? Where is the In- 
 quisition, out of Madrid, that can equal this new species of 
 Inquisition — the Inquisition of a Judge’s Charge ? — Where 
 are the racks and the tortures, however, of new and of patent 
 invention, worse to men of sensibility and honor, than to 
 have then sentiments, often incautiously expressed, circulat- 
 ed in pamphlets, from one extreme of the United States to 
 the other? I aver, that the like of this has not occurred 
 
20 
 
 within the hallowed walls of any Temple of Justice, in any 
 land of freedom. 
 
 NO. 5. 
 
 It must have been seen, that my object in noticing Judge 
 Johnson’s opinion, was to vindicate the State and the com- 
 munity from the aspersions he cast against both. If I have 
 travelled out of the pamphlet, or have touched upon topics 
 not arising out of the subject, and referred to by the Judge, I 
 shall certainly regret it for my own sake. I must never lose 
 sight of the respect I owe to myself. I am, however, not 
 sensible that I have trespassed in the slightest degree. Cer- 
 tainly, “ nothing extenuated, nor set down aught in malice.” 
 I desire nothing more, than that my readers should have 
 his pamphlet in their hands, whilst they read these essays, 
 and judge for themselves, whether I have ascribed to him any 
 wrong opinions or views not warranted by his own perform- 
 ance. If I have at any time, used strong language, it was 
 because the occasion as strongly demanded it. Shall a pub- 
 lication be permitted on the one hand, liable from the very 
 nature of its subject, to be misunderstood by one class of our 
 population ; and on the other encouraging by opinions un- 
 necessarily expressed, the coloured race of other parts, to 
 persist in coming here contrary to our laws, that they might 
 corrupt our slaves ? Shall the circulation of sentiments of 
 this cast and character, be tamely acquiesced in, because they 
 come from the extra-judicial pen of Judge Johnson ? Shall 
 the sacred mantle of office cover the indiscretion of the man, 
 or shall station protect him who forgets his duties to the 
 advocate, in breaking down those laws of courtesy which bind 
 the Bar to the Court ? Palsied, I say be my heart, and pal- 
 sied be my tongue, when the one shall not feel at this time, 
 luch insults to my country, and the other to proclaim her 
 wrongs. That the volunteer opinion of Judge Johnson, may 
 ind tvill produce unhappy effects, is not a solitary opinion of 
 nine. Every^prerson in the Court room disapproved of it, 
 nd there was almost a simultaneous wish expressed in the 
 abbies, that it should be confined to the place where it was 
 
 i 
 
21 
 
 first delivered. The very circumstance of the Editor of a 
 Public Gazette, declining its insertion in its columns, ought 
 to have put the Judge to the inquiry, whether there might 
 not be some ground for the Editor’s opinion, that it was im- 
 proper for public inspection- Most men, similarly circum- 
 stanced, and at the same time entering into the sympathies of 
 their fellow men, after the occurrences of the past summer, 
 would have been thankful for such a suggestion, from one, 
 who, from his habits was fit to judge, and who could have 
 had no wrong motive for his advice. The Judge, however, 
 disregards admonition, and his opinion is with the world. 
 
 In the opinion given by him on the merits of the motion 
 for the habeas corpus , I most sincerely acquiesce. 1 his I 
 call the judical opinion of the Court, and it is entitled to my 
 respect. It will be found from the 12th to the 15th (both 
 inclusive) pages of the pamphlet, with only one exception, 
 and that is, where in half a line, the unconstitutionality of the 
 State Act is declared. With this exception, and with the 
 exception also of the two first pages, which simply comprise a 
 statement of the case, there is not a sentence, or a sentiment 
 in the whole pamphlet, from the beginning to the end, which 
 is not extraneous and irrelevant to any point finally decided 
 by the Court. This I call the extra judicial part of the 
 opinion. It is not that the principal portion of this opinion, 
 as it is termed, is irrelevant, but it is offensive, as I trust, I 
 have shewn to the good people of the state. The senti- 
 ments are expressed, as one would give them, if he were 
 soured with the community in which he lived. In the view 
 of the Judge, the Legislature acts hastily and without due 
 consideration. It first permits itself to be surprised into the 
 passing of the law, and when it is passed, then in the mind 
 of his Honor, it is not only unconstitutional and void, but it is 
 also absurd. In the view he takes of the law, if its policy be 
 to keep foreign persons of color from holding oommunion 
 with our slaves, it then pursues a course inconsistent with its 
 object and defeats its own ends. If it would keep out dan- 
 gerous characters, then says he, it presents the finest facili- 
 ties in the world for those characters to introduce themselves 
 into the very situation, in which they would enjoy the best 
 opportunities of pursuing their designs. If, continues he, 
 it would have wild beasts kept from us, then it acts so as to 
 
22 
 
 turn them loose into our streets. If it would keep out the 
 plague, then it inoculates the community with it. If the in- 
 cendiary, the fire brand is put under our houses. It is stu- 
 diously / calculated he thinks, to hurry through its own exe- 
 cution, so as to leave the objects of it remediless. It is un- 
 just — it is incongruous. These are the Judge’s ideas, nay 
 his words. It again makes slaves of the fiiendly subjects of 
 Morocco and Algiers, and of the fine Nantucket Indian 
 Seamen, sdme of the best he says, in our service, without a 
 chance of redemption. Aye, and of poor shipwrecked mari- 
 ners too ! All these, no matter how willing they may be to 
 leave us, may be made slaves in the land of South Caroli- 
 na, if a captain by his avarice, or his caprice, should chuse it. 
 These are the Judge’s extraordinary views, in this most ex- 
 traordinary performance, called an opinion from the Bench. 
 What series of circumstances, what combination of causes, 
 could bring about in the mind of any one citizen, such un- 
 happy, such oblique and such distorted views of our legisla- 
 tion and proceedings, it must be left for the community to 
 judge. Had it been so, that his Honor in any case which 
 might have come before him, was so situated, as to give an 
 opinion against his own feelings, in which his countrymen 
 saw their hopes disappointed, and their prospects darkened, 
 who would have blamed him, for the honest and conscienti- 
 ous discharge of his high and sacred trust ? But, when duty 
 does not demand the expression of opinions, which, in their 
 tendency, may be destructive to the interests of the State, who 
 can excuse him ? If in his strange conceit, such a matter as a 
 State taking up a few persons of color, could produce colli- 
 sion between this State and the general government, or be- 
 tween the general government, and a foreign power, was it 
 for him to interfere ? If the British Consul and the Northern 
 Captains, had complaints to make, as he states, and he could 
 give them no redress, what more had he to do with the busi- 
 ness ? Is he to counsel them ? Is he to assure them “ that 
 they should be no more molested.” Could he suppose, that 
 his dictum, or the influence of his opinion, could put an end 
 to the operation of a State law ? But 1 he knows the unfa- 
 vourable feeling which the Act was calculated to excite 
 abroad,’ then, why not at the same time, give some thought 
 
23 
 
 to the situation and feelings of the people at home, amongst 
 whom he lived ? If he would step out of the line of his du- 
 ty, to do an act of kindness, why not have had his eye a little 
 to the Citizens of Charleston, as well as interest himself, for 
 the Northern Captains, who are acting for the colored people 
 of the North. If he would interpose his advice at all, why not 
 have said to these Captains, as he might have said with pro- 
 priety and with great truth, that they carry thousands of South- 
 ern passengers from this port ; that they earn their bread by 
 the custom and the trade of the South ; that the facility af- 
 forded for mischief by the increasing practice of employing 
 colored cooks, stewards and mariners, was, in this community, 
 a growing evil, and a just cause of considerable alarm,* and as 
 the inconvenience to them, in dispensing with their blacks, was 
 but trifling, compared to the danger to us, in bringing them 
 here, they ought to have some little regard to the feelings of 
 the people with whom they traded, and not press the matter 
 before the State Court. Understand me, I do not say, he 
 ought to have said, thus much, but that if he did interfere or 
 give his private opinion at all , better to have spoken as a 
 Carolinian, than to take the interest he did, by directing Mr. 
 Gadsden, the District Attorney of the United States, to 
 make applications to the State Authorities, as if it were a 
 matter of any great consequence, whether the blacks of New- 
 York or Philadelphia, (whose hostile intentions must be bet- 
 ter known there than here,) were lodged in jail, till the ves- 
 sels which brought them in should be ready to sail. Would 
 any of the Judges of the King’s Bench in England, take the 
 same trouble, or feel the same interest, for a bona f.de white 
 American Citizen, who having a right to ingress into Great 
 Britain by the Treaty with that power, should be ordered 
 oft', by that government, under the Alien Act, lately passed 
 by Parliament. — I should say no. 
 
 Every thing which has happened for the last twelve 
 months, ought to have demanded of the Judge, to have en- 
 tered so far into the general sympathy and public feeling, as to 
 
 *The splendid Liverpool Line ship Canada, on her arrival from 
 Liverpool discharged her crew in .New York, and when she arrived 
 here some weeks ago, her crew before the mast was composed entire- 
 ly of blacks, shipped in New-York for this voyage. 
 
24 
 
 have directed his unofficial advice, (if he would give it,) tv 
 the end, which he, as well as the rest of this community, ought 
 ever to be desirous to attain ; namely, the exclusion of these 
 characters, who furnish such an important means of commu- 
 nicating to the domestics of the South, the sentiments and 
 opinions, and horrible schemes of their own color of the 
 North. The author of this pamphlet, was born and has liv- 
 ed among us. He has seen attempts frustrated, which had 
 they succeeded, to any extent, would have made this land, the 
 scene of desolation and woe. He has seen thirty-five hu- 
 man beings atone for their diabolical crimes, by the death of 
 the gallows. He has seen them tried by some of the first 
 men in the state, and distinguished for their probity, their 
 honor, and their good sense. He knows their sentence to be 
 approved of by every man, woman and child in the country. 
 If he has heard complaints, he has heard none, but there has 
 been too much forbearance, and that the steps of justice 
 were too sluggish. The sensibility of the city, he has seen 
 extended more or less, over the state. He knows the state, 
 and the progress of opinions in other countries on this sub- 
 ject. He there sees societies, and plans, and projects a-foot, 
 striking as manifestly at the vital interests of the States of the 
 South, as that the sparks fly upwards. He sees a false and 
 affected tone of philanthropy, which, if spread over the vast 
 regions anticipated by their professors, would overwhelm the 
 land of his fathers. He can look no where, that he does not 
 see clouds gathering into storms, and storms threatening to 
 burst upon nations. He sees the colonial interests of the 
 British Empire, about to be immolated 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 unnatural parent, to spare , and not like Saturn to 
 destroy her own children. Let him go over the sections of 
 this confederacy. He finds the self same spirit, under other 
 names, and prompted by other motives, stalking abroad as a 
 pestilence. All the engines, and all the means and ma- 
 chines, which talent, fanaticism, false charity, fashionable 
 humanity, or jealousy, or folly, can invent, are in dreadful 
 operation, and array against the State, which gave him birth. 
 And when the state would look out for a little shelter, from 
 
25 
 
 the impending gust, in the means which God and nature has 
 given every sovereign state and every individual to preserve 
 themselves, the Judge alone, as if he were on a hill, would 
 act and interfere as if there were no cause for alarm : 
 
 “ He would bestride our narrow community. 
 
 Like a Colossus j and we petty men, 
 
 Must peep about, under bis huge legs, 
 
 To find ourselves dishonorable graves.’' 
 
 Our Legislature have no deliberation, or reflection, for they 
 pass absurd laws. Their means defeat their ends. ' And as 
 to the necessity for all this exhibition of legislation and zeal'’ 
 for the year past, the author of this pamphlet has his private, 
 opinion, but lie will only express it to his friends. 
 
 “ Xay ; yet there’s more in this ; 
 l pray thee, speak to me. as to thy thinkings, 
 
 As thou dost ruminate, and give thy wors t of thoughts 
 The worst of words.’’ 
 
 If prudence be a virtue in domestic life, it should never be 
 neglected by a person in authority. Every sentiment ex- 
 pressed by a great man, produces good or evil consequences ; 
 for after all our boasted independence, we rely very much 
 upon the opinions of others. If the chief magistrate of these 
 United States, should express any opinion, upon a subject in 
 its nature calculated to excite the passions of men, however 
 unofficial may be the expression of that opinion, it must and 
 it will cause great excitement. It is the part, therefore, of 
 wisdom, never to proceed a single step beyond what may be 
 required by the immediate case under consideration. But 
 of all men, he who is to dispense justice, should be the last to 
 advance an opinion upon national, much less, international 
 law, when that opinion is not necessarily called for by the 
 subject in dispute. The decision now under review, is ex- 
 pressly in violation of prudence. It has covered a ground 
 as extensive as the imagination of the Judge. It brings be- 
 fore the public no less personages than the British Minister 
 at Washington, the honorable the Secretary of State, and a 
 distinguished member of Congress, from South Carolina.— 
 3 
 
26 
 
 It arraigns the w isdom of the legislative body, and is calcula- 
 ted to rouse the indignation of the Northern States, by a se- 
 ries of analogies, as revolting to our own feelings, as to those 
 of the people of Massachusetts, or Connecticut. It glances 
 from the public officers to a private Association, and from 
 the Attorney General of the State, to the Solicitor of the 
 Association. Every consideration, which would have sug- 
 gested a decision, as limited as the circumstances of the case 
 would admit, has been by the Judge entirely neglected. — 
 A motion is made for a habeas corpus, &c. He decides that 
 he has no power lo grant it, and, consequently, whether the 
 law of 1822, be. or be not constitutional, was not a subject 
 for the decision of the Court. In deciding, therefore, upon 
 this question, his honor kept not within the line of prudence, 
 but went beyond the necessity of the case. But, even if the 
 constitutionality of the law was the subject before the Court, 
 where was the necessity of introducing Mr. Adams to the 
 view of the public. Could Mr. Adams’ incautious pledge td 
 Mr. Canning, the British Minister, influence the decision of 
 a grave question ? or was it necessary for Judge Johnson to 
 justify to Carolina, the ways of the honorable Secretary ? It 
 must have been for one of these two purposes, or it was idle. 
 But is the opinion of those in power to affect a constitutional 
 decision, or is Mr. Adams so weak as to need Judge Johnson’s 
 assistance, in regulating his official conduct? Is it not appa- 
 rent, that every thing said in this opinion, relative to the 
 '•orrespondence between Mr. Adams and the British Minis- 
 ter, and between Mr. Adams and an honorable Member of 
 Congress, is altogether irrevelant, and highly extra judical ? 
 Can any valuable end be accomplished, by such extraneous 
 matter being introduced into a judicial decision ; and must it 
 not be productive of unhappy irritation, both here and abroad ? 
 Even allowing the law to be unconstitutional, would it not be 
 the part of a wise man to calm, rather than to increase the 
 excitement, which he thinks necessarily arises from the exe- 
 cution of such a law ? If one State deems a certain act com- 
 mitted by another State, destructive of its safety, would not a 
 man possessed of influence, be well employed, if he takes up 
 the subject at all, in persuading the first State, to abstain 
 from the committing of that act, although it would be consti- 
 tutional ; and would it not be extremely unsound and unpa- 
 
27 
 
 triotic, to encourage a Northern State, in doing that, which is 
 of little importance to her, but of deep solicitude, to us in 
 the South? There can be but one opinion, I should conceive 
 on this subject. 
 
 NO. 6. 
 
 As the Judge begins to be angry, and in a publication 
 just put forth under his signature, would have the communi- 
 ty to regard him as a noble stag pursued for some time past 
 by blood hounds, upon whom he must now and then turn in 
 the pursuit, I think it due to myself to state, in this place, 
 that I am perfectly unconscious of any wrong motive to- 
 wards him. My displeasure arises from the indiscretion of 
 his publishing or causing to be published, his opinion on u 
 subject, calculated to produce excitement, and containing 
 sentiments injurious in their tendency to the public weal. — 
 I am now tempted to go for the first time from tire pam- 
 phlet; but when my readers shall perceive, that I do it 
 for no other purpose, than to bring before them, the Judge’s 
 own words , and the sanction of his own authority for much 
 that I have said, I trust I will be readily excused by all. — 
 Though I travel out of the pamphlet, I certainly do imt de- 
 part from the subject. The descision of Judge Johnson, in 
 the case of Elkison, is a nisi prius decision. Lest some 
 of my readers, should not know the meaning of the term, it 
 behoves me to say, that by a nisi prius report or decision, 
 is meant nothing more than a decision of a single Judge. 
 
 In the City Gazette of January 18th, 1822, is published 
 Judge Johnson’s opinion in the Amanda , and George Tim- 
 mons, owner, and Edward G. Mann, master, vs. J. & J. 
 Owens Johnson, et. al. In the course of the argument, in 
 that case, before his honor, the case of De Lovio and Boit, 
 reported in 2d Gallison, was much commented on. That 
 report was a nisi prius one, and Judge Johnson, in noticing 
 it, makes the following remarks — “ I think it a public mis- 
 “ fortune, that they, (that is nisi prius decisions) are ever 
 Ci published ; for they commit a Judge to posterity, without 
 :: an opportunity of correcting his errors, — add to the enor- 
 
“ mous bulk and expense of a Law Library — often make 
 u business for our Courts, which never would have originat- 
 “ ed otherwise — and finally, give a bias to legal opinions, 
 “ which ought to be received exclusively from tribunals of 
 “ the last resort.” If ever discretion and good sense was 
 contained in a few remarks, those I have here quoted, do cer- 
 tainly contain it. On a Judge’s opinion are frequently sus- 
 pended, the fortune and life of an individual ; and, it is not 
 too much to assert, “ the destinies of a whole people.” “ To 
 put forth, then, an opinion, which may contain errors fatal 
 to our security, without an opportunity of correcting those 
 errors, is, to say the least of it, highly injudicious. To make 
 “ business for the Courts which toould never have originat- 
 ed otherwise ,” is to create one of the greatest evils, which 
 can afflict a people. “ To give a bias to legal opinions, 
 which ought to be received exclusively from tribunals of the 
 last resort,” is acting against the very genius and spirit of 
 that constitution, which the Judge is sworn to defend, inas- 
 much as that constitution, has created a trihunal of the last 
 resort , to prevent the very mischief complained of. How is 
 it possible for any man, to reconcile the remarks of Judge 
 Johnson, made only eighteen months ago, with his conduct 
 on the present occasion ? Are these remarks to be regar- 
 ded only as just when applied to a published decision of so 
 distinguished a Lawyer and Judge, as Judge Story ? or 
 does Judge Johnson think his opinion so infallible that no 
 errors can possibly be transmitted to posterity, by the publi- 
 cation of it? It may perhaps be said, that there is no ap- 
 prehension of this decision, going down to posterity, or of its 
 being added to our already enormous law libraries, which 
 perhaps is true ; still however, it may have the effect of ma- 
 king “ business for our Courts which would never have ori- 
 ginated otherwise.” The Constitutional Court of South 
 Carolina, having refused to declare the Law unconstitution- 
 al, it was deemed unnecessary by captains of vessels, or their 
 advisers, to make any further appeal to the State Tribunals, 
 and as the Federal Circuit Court had no jurisdiction in cases 
 arising under it, they would shortly have been compelled to 
 employ white men only on board such vessels. as traded to 
 this port, and thus every benefit anticipated by the framers 
 of the law of 1822, would have been realized. But since 
 
 / 
 
29 
 
 Fudge Johnson has thought proper to publish to the world, 
 his opinion, on the constitutionality of this law, Captains of 
 vessels are thereby encouraged, to bring into our ports, per- 
 sons excluded by its provisions, and thus “ make business ” 
 for our State Courts, with a view of carrying up their cases, 
 as they are told they can, to the Supreme Court of the Uni- 
 ted States. Here then we perceive, that the very consequen- 
 ces, so much deprecated by the Judge when alluding to the 
 nisi prius decision of a Brother Judge, are likely to result 
 from his own published decision. If Judge Johnson 
 could so clearly discern the evils flowing from the publica- 
 of a nisi prius decision by Judge Story, what, I ask, could 
 have induced him to publish, or cause to be published, his 
 own decision, which was also at nisi prius ; especially as he 
 says in the case of the Amanda — “ I have observed in com- 
 “ mon with my own decisions, that those of my brethren on 
 Circuit, are not authority.” Now, if ‘ not authority,’ why 
 ^publish it ? It could not surely be 1 to give a bias to legal 
 opinion for I owe it to our State Judges to say, that they 
 are not very likely to be biassed by any opinion of Judge 
 Johnson, as to the construction of a law which is to guard 
 against insurrections. Here then, is a tissue of inconsisten- 
 cies in the conduct of Judge Johnson, totally irreconcileable, 
 upon any principles I am acquainted with, though I candid- 
 ly confess, I am not very conversant with the principles 
 which prevail in the Federal Court. In my former num- 
 bers, l remarked that there was no necessity for Judge John- 
 son’s saying a word on the constitutionality of the law, be- 
 cause he had other grounds fully sufficient to decide upon.— 
 In truth, he did not possess the right to decide on its consti- 
 tutionality, inasmuch as it did not, and could not affect the 
 question before him. Can any good reason be assigned 
 then, why he should have touched upon a question so irrita- 
 ting — so calculated to inflame — and so likely to produce a 
 misunderstanding between the Northern and Southern States ? 
 Will it be said that he has done no more in this case, than 
 he does in every case, and this excuse, I know has been made 
 for him by his friends. — If this had been his constant prac- 
 tice, there were certainly strong reasons for his deviating from 
 it in this instance. But so far from it being his constant 
 practice, he invariably avoids it, at least if expressions made 
 3 * 
 
50 
 
 use of by him are to carry any authority with them. In the 
 conclusion of his opinion, in the case of the Amanda , he 
 makes the following observations : — “ There are other ques- 
 tions of great commercial importance in this case — but I 
 “ shall adhere to my constant practice of never seeking for 
 “more than one sufficient ground to decide upon.’’ How 
 comes it then, that after decreeing upon the very ground 
 which was sufficient, he proceeds to consider a ground which 
 he acknowledges to be insufficient ? Is it not ‘ passing 
 strange , that upon the most delicate subject which can be 
 presented to a Court, the Judge should not only comment 
 upon a ground irrelevant and insufficient, but even depart 
 from a resolution to which he publicly promised to adhere , 
 viz. the ‘ constant practice of never seeking for more than 
 one sufficient ground to decide on V Was there nothing 
 due to the people of Charleston, among whom Judge John- 
 son was born, and to whom he is indebted for many honors ? 
 Would it not at least have been respectful to the people of 
 South-Carolina, and to its Legislature, to have passed sub 
 silentio a question, which was not necessary to the perform- 
 ance of his duty, but which must necessarily inflict a severe 
 wound upon their sensibilities ? Or are we to understand, 
 that when a citizen becomes a servant of the General 
 Government, he is to disregard the views, opinions and 
 feelings of those among whom he was bred, and from 
 whose early notice of him, he perhaps derives the ex- 
 alted honor of being a Judge of the Supreme Court of the 
 United States ? 
 
 NO. 7. 
 
 On that part of Judge Johnson’s opinion, in which he 
 condemns the State Act, as unconstitutional and void ; I have 
 hitherto said nothing. It was not my intention, when I ffie- 
 gan these essays, to touch this question. As the Act, how- 
 ever, has been much talked of, and, as many of our citizens 
 might naturally fall into the opinion, that it is a nullity, mere- 
 ly, because a Judge of the United States’ Court says so, and 
 other good citizens know not what to- think, I shall endeavor 
 
31 
 
 to remove some doubts which I have heard expressed by my 
 friends. It is not to be expected, that in the columns of a 
 public journal, and with the little time allowed, from day to 
 day, to prepare for the press, that I should give a systematic, 
 or even the strongest view, of which the subject is suscepti- 
 ble. All that I propose to do in the numbers which are to 
 follow, is to give some ideas on the subject, which, if they do 
 not wholly satisfy my fellow-citizens, will, at any rate, induce 
 some of them to pause, before they believe, that in passing 
 this Act, the State has been unmindful of her obligations to 
 the General Government, or has acted upon any other con- 
 viction than that the Act was constitutional as well as expe- 
 dient. That it will stand the test if ever the great question 
 should come before the tribunal of the last resort, is my 
 honest conviction, as it is my sincere hope. 
 
 The Judge, in giving his extra-judicial opinion, takes two 
 positions. His first is, that the right of Congress to regulate 
 commerce with foreign nations, is a paramount and exclu- 
 sive right. This general position, if it means that the regu- 
 lation of commerce belongs exclusively to Congress, and not 
 to the States, has my unqualified assent. I yield to the 
 Judge that this law could not be passed by the State in the 
 exercise of a concurrent right. The law in my view is 
 wholly indefensible on such a ground; and I now regret that 
 such a ground ever was taken. The words of the grant of 
 this power from the States to Congress do certainly “ sweep 
 away the whole subject, and leave the States nothing to act 
 upon.” So far we do not differ. 
 
 The Judge’s second general and broad position, is, that 
 unless it can be shown that the State possesses a power 
 paramount to the treaty-making power of the United States, 
 expressly declared to be a part of the supreme legislative 
 power of the land, the State law cannot be sustained. I 
 here dissent. I think the case of Henry Elkison is in- 
 dependent of such a position, as not coming within the spirit 
 or object of the treaty, or within the contemplation of those 
 who negociated it, as I hope to shew. But I do contend, 
 that as to the prohibition of persons of color from entering 
 its limits, whether bond or free, this State does possess a 
 power, which is paramount to any treaty-making power 
 whatever, and that a treaty in which the State is deprived of 
 
32 
 
 the exercise of this right, expressly or impliedly, is unconstrk 
 tutional and void. 
 
 A treaty, made under the authority of the United States, is 
 declared by the constitution to be the supreme law of the. 
 land. — Hence the idea, in many minds, of the omnipotence 
 of a treaty. But this is a great error; for all the laws of 
 Congress are equally the supreme law of the land. The 
 same clause in the constitution which gives supremacy to a 
 treaty, at the same time confers it on the constitution and on 
 every act of Congress. But before either a treaty or a law 
 can be acknowledged as supreme, it must conform, as I shall 
 shew, to the constitution. The words are — “ The constitu- 
 tion and the laws of the United States which shall be made 
 in pursuance thereof ; and all treaties made, or which shall 
 be made, under the authority of the United States, shall be 
 the supreme law of the land, and the Judges in every State 
 shall be bound thereby.” A treaty then, by being called 
 supreme cannot violate the constitution, nor can it stand upon 
 a better footing than an act of Congress; for, in the article 
 just cited, the constitution itself is frst declared supreme, as 
 well as every act of Congress made in conformity to its pro- 
 visions. The only difference between an act of Congress 
 and a treat) 7 , which lean perceive is, that the one maybe 
 repealed by the body which enacted it, whereas the other is 
 not to be got rid of without collision with a foreign power. 
 But I insist upon it, that a treaty as well as a law of Con- 
 gress, before it can have validity to bind the States, must be 
 within the constitution. 
 
 To give any other construction to this article in the con- 
 stitution, would be to give the President and Senate, who 
 constitute the treaty-making power, a right to do what they 
 please, or to bind the States in all cases whatsoever. I 
 should apprehend that no reasonable man would contend for 
 such a construction as this. 1 will illustrate my position : — 
 Suppose, in a treaty to be made by the President and Senate, 
 the United States be pledged to an alliance offensive and de- 
 fensive with France. Such a treaty would be ipso facto 
 void. Why ? Because it would give the President and Se- 
 nate a power to place the United States in a state of war , 
 which power, by the constitution, is expressly and exclusively 
 vested in Congress* Suppose again, a treaty be made with 
 
U'3 
 
 Great Britain, in which it should be stipulated, that for cer- 
 tain commercial advantages on our part, all her subjects, 
 after a certain residence, should be entitled to all the immu- 
 nities of native citizens. Such a treaty would be void, be- 
 cause Congress alone can naturalize foreigners. Let us take 
 now a case as to the regulation of commerce, which so pro- 
 perly belongs to the treaty-making power. Suppose that in 
 a treaty, purel}' commercial, in order to give the people of 
 one portion of the Union advantages over those in another, 
 a treaty shall be made with England, giving her subjects the 
 right to import goods into some ports, upon trifling or no 
 duties, but in others to be subject to very high or prohibitory 
 duties, would not this treaty be unconstitutional and void, 
 under that article of the constitution which says that “no 
 preference shall be given by any regulation of commerce or 
 revenue, to the ports of one State over those of another” — 
 and as also infringing that other article which says that “ im- 
 posts shall be uniform throughout the United States?” 
 
 These are cases in which treaties would be void, as in- 
 fringing express articles or provisions in the constitution. 
 But there might be stipulations in treaties which would be 
 void, as interfering with the numerous undefined powers re- 
 served to the States, such as a stipulation that a foreigner 
 should carry on his trade free from all state-taxes, or that he 
 should be exempt from militia or patrol duty, or that the es- 
 tate of an intestate should be distributed according to the 
 laws of the nation to which he belonged, and different from 
 the law of the State in which he died, or that the vessels of 
 any nation shall not be subject to the vexation of quarantine 
 laws, and so on. If it were necessary to push examples 
 further, many might be the cases (and some not improbable) 
 in which a treaty make by the President and Senate would 
 be void. Then I ask, as 1 trust I have a right to do, from 
 what has been said, what becomes of this high sounding attri- 
 bute, in the treaty-making power. that a treaty is thesupreme 
 law of the land, and that the Judges in every State must be 
 bound by it, if it only be made under the authority of the 
 General Government? What becomes of this omnipotence 
 of a treaty, so much talked of? I have shewn many cases in 
 which confessedly treaties would be void. A treaty, then, at 
 last, as to its validity, is no more than an act of Congress. 
 
34 
 
 Its validity depends upon its constitutionality. It must vot 
 interfere, either with the powers, expressly delegated by the 
 States to other departments in the government, or with those 
 which are, by the constitution, reserved to the States respec- 
 tively. If it does, such a treaty in either case, is ipso facto 
 void, and the States are no more bound by it than they can 
 be bound by an act of the British Parliament. 
 
 no. s. 
 
 I am fully aware, that it may be said, that, if a treaty be 
 not regarded as paramount, and any state should refuse to com- 
 ply with its stipulations, that it might furnish, as the Judge 
 thinks, a ground of war between a foreign Prince, and the Go- 
 vernment of the United States. I am also apprised of the fear 
 entertained by many good people, that no Prince or State, 
 would ever enter into a convention with a government, pro- 
 fessing itself Sovereign and Supreme, whose engagements 
 are liable to be frustrated by one of the members of the con- 
 federacy, and thus, to make the Government of the United 
 States, like the old confederation, a rope of sand. The answer 
 to these objections, I conceive to be very plain and easy, and 
 it is this : if the General Government, which is a government 
 acting under delegated powers, expressly defined, and under 
 certain restrictions, and as such is known, or ought to be 
 Jcnoivn, to every foreign Prince, or Potentate, thinks proper, 
 in a treaty with such Prince, to enter into obligations, which 
 are contrary to its high duties to the States, or to its obliga- 
 tions to the States, previously contracted, the fault and the 
 folly is its own; and the matter must be settled between 
 the two Governments, in the best way they can. It is no 
 more, than the common case of an individual, treating with 
 another individual, under powers, which are afterwards dis- 
 covered to be insufficient. Governments often get into diffi- 
 culties of various kinds, and there have been instances, in 
 which differences and serious collisions too, have arisen be- 
 tween one government and another, owing to carelessness and 
 oversight in their treaties. But it would be monstrous to say, 
 that, because- the genera! government, in a treaty, has sur- 
 
35 
 
 rendered a right of vital importance, belonging to any of the 
 States, that the particular State so injured, should, from re- 
 spect to the Government, or from fear of involving it in colli- 
 sion and war, produced by its own indiscretion and folly, ab- 
 stain from exercising a right, essential to its domestic tran- 
 quillity or existence. I will throw out an illustration, which 
 1 think not inapplicable. At this moment, slaves cannot be 
 imported into the United States. Why ? Congress has for- 
 bidden the importation of them under severe penalties. But 
 suppose, from the sickliness of trade, from inclination, or in- 
 terest, or any other cause, our brethren of the North, should 
 desire the revival of the slave trade, once so profitable to 
 them, and Congress should, under their influence, repeal its 
 acts ; and suppose, at the same time, that Wilberforce, and 
 his party and influence, should be cast out of Parliament, and 
 the trade should be opened to Biitish subjects, and in this 
 state of things, (stranger have happened) that a commercial 
 treaty is entered into, between the two countries, (why do I 
 say, entered into ? One now exists ;) in which slaves, (as much 
 •an acknowledged article of commerce, as broadcloths are) 
 may, under the terms ot the treaty, be permitted to be brought 
 into our Southern ports. Is the Northern citizen, to insist on 
 his right to bring them in, under the immunities he expressly 
 enjoys under Ike. Constitution, to carry his goods and chat- 
 tels where he pleases? And is the British subject to point to 
 the treaty, as establishing his claim ? Are we to be told, that 
 the treaty is the supreme law of the land, and that the treaty- 
 making power, being rightfully exercised, in permitting an 
 unlimited liberty of commerce, must be paramount ? The 
 idea is preposterous, that the sovereign State of South-Caro- 
 lina, whose right, to open or shut her ports at pleasure, as to 
 the importation of Africans, lias always been exercised by 
 her until 1 808, when they were finally closed ; should be 
 precluded from shutting them again at any time when she 
 shall conceive, that the further increase of a black population, 
 already so large, shall endanger her domestic quiet. But I 
 put aside all hypothetical views, and will proceed to consider 
 a case which has existed in fact. 
 
 When the first treaty of commerce was made with Great- 
 Britain in 1794, called Jay’s Treaty, the port of Charleston, 
 *>y a State Act, was then closed against the importation of 
 
o6 
 
 Africans, and so continued until ISOS, when the law was 
 repealed. In this treaty was inserted an article (the 1 4th) 
 exactly similar to the one inserted in the present convention 
 with that country. An unlimited liberty of commerce was 
 then, as it is now stipulated for, and nearly in the same words. 
 How is it, I ask, that Great-Britain, who was at that time 
 carrying on the slave trade, did not insist upon bringing 
 slaves into this port. Her right, under Jay’s treaty, was clear 
 and indubitable, and yet she never claimed the right. Now 
 if she acquiesced in the State law, because she conceived the 
 proviso at the end of this article, (“ subject always as to what 
 respects this article, to the laws and statutes of the two coun- 
 tries respectively,”) to embrace the laws of the individual 
 states as well as the laws of Congress, which is not Judge 
 Johnson’s construction ; then, most clearly and unquestion- 
 ably, her subjects who are persons of color, cannot now 
 claim ingress, because the stipulated liberty of ingress for 
 the purposes of commerce and navigation by the present 
 convention, is fettered v ith the same proviso, and thus the 
 State Act does not impugn the treaty. If, on the contrary, 
 the British ministry or people thought that the true meaning 
 of the proviso was, that the liberty of commerce was only 
 subject to the laws of the United States, and not of a parti- 
 cular State, thus agreeing with Judge Johnson, and they 
 still did not prefer their claim, because they' thought that the 
 regulation of a black or colored population, within tiie limits 
 of South- Carolina, was a right which properly belonged to 
 her, and therefore not within the meaning of the treaty, my 
 present purpose is equally answered. Be all this as it may, 
 one fact must stand forever undisputed, and a very important 
 fact it is, namely, that in tire history of the United States, 
 a treaty was made with Great-Britain which directly contra- 
 vened a law of the State of South-Carolina. In this treaty 
 the rights of an unlimited commerce were clearly given to 
 her subjects, add yet. the law was in constant operation, and 
 the right under the treaty was never insisted on. Who can 
 suppose that Great-Britain, then so discreet, would not be 
 equally so now, in not claiming ingress for her black 
 subjects? 
 
 There is no better way of getting rid of any position, than 
 to point out the absurd doctrines and consequences, to which 
 
$1 
 
 ii may lead. I have done this I hope, by several familiar 
 illustrations in this and the preceding - number. It is true 
 that all these difficulties, and all this conflicting and clashing 
 of powers and claims may be avoided, and, in the way sug- 
 gested by the Judge, namely : that if policy requires arrange- 
 ments to be made, which are considered essential to a parti- 
 cular State, that it be introduced into the Treaty, by those 
 who negotiate it. This, however, is not considering the 
 question. I am supposing, that the General Government, 
 from carelessness, oversight, or some other cause, shall sur- 
 render expressly or impliedly, in a treaty, an acknowledged 
 right of vital importance, to a particular State ; such, for in- 
 stance, as the right to shut her ports against slaves, or to re- 
 gulate the ingress of any colored population, what then is to 
 be done ? The course is obvious to every reflecting man. Let 
 the General Government extricate itself from a dilemma, oc- 
 casioned by its own oversight or folly, in the best way it 
 can, and let the State, whose acknowledged right has been 
 improperly suriendered, and upon which its peace and ex- 
 istence depend, continue to exercise it, as if nothing had hap- 
 pened. Let her, in every such case, adhere to the rights re- 
 served to her by the Constitution of the United States. Let 
 her ding to them as the ark of her salvation. 
 
 NO, 9 . 
 
 I have established, I think, most satisfactorily, that a trea- 
 ty, though called by the high-sounding name of the supreme 
 law of the land, and to be received as such by all the Judges 
 in the States, is on no better footing than an Act of Con- 
 gress. That, to be binding on the States, or even on Con- 
 gress itself, it is essential, that it be in pursuance of the Con- 
 stitution — that its validity depends upon its constitutionality, 
 and that no State is under an obligation, legal or moral, to 
 comply with its stipulations, if it expressly surrenders a State 
 right, or interfere with a subject exclusively of Slate Legis- 
 lation. That it follows of consequence, that the treaty-mak- 
 ing power, is not, as the Judge contends, a. paramount power. 
 I have shewn it, to be as restricted and as limited, as any 
 4 
 
38 
 
 other power in the government, by supposing many cases, in 
 which a treaty would be void, and by stating one case in 
 particular, in the history of our country, in which it was 
 clearly void. I have shewn in fact, that the Constitution 
 alone is paramount. 
 
 From what has been said, in the preceding numbers, there 
 arises this incontrovertible position, from which 1 cannot be 
 driven, and I wish my readers to bear constantly in mind. It 
 is this : That the President and Senate, who are the treaty 
 making power under the Constitution, are (as affects the im- 
 mediate question at issue) to be' regarded in no other light, 
 than as Delegates from the several States, to negotiate with 
 Great Britain, a treaty of commerce, for their benefit, under 
 the most general or enlarged powers, as to the subject mat- 
 ter, with an obligation on the part of the States, to ratify 
 any convention, to be made in virtue of their powers. — 
 And now comes the true question : can a stipulated liber- 
 ty of ingress, for the purposes of commerce, be so con- 
 strued, as to deprive one of those States, with a black popu- 
 lation, from excluding free persons of color, who are British 
 subjects. I think I put the question fully and fairly, for I 
 fear not to meet it. It is idle, in any inquiry after truth, to 
 look at things in their form and color only. Let us get at the 
 substance of the transaction. Let us see how the President 
 and Senate stand, as to their relations with the several States. 
 When they ate exercising the treaty -making power, are they 
 not acting under delegated instructions from the States ? Are 
 they not Plenipotentiaries to all intents and purposes, and 
 must not all their acts, or all treaties made by them, be sub- 
 ject to the same rules of interpretation, which would govern, 
 if the power to make the treaty was delegated to one man 
 only, or if it were a power from one individual to another. If 
 this be the case, and the question be, whether a stipulated 
 liberty of ingress, for mere purposes of commerce, slrall be 
 extended to apply to those, whom the State, giving the power, 
 shall regard as dangerous to its safety, to a common mind, 
 this question admits of an easy answer. Common reason 
 would say to any man, that he, to whom a general power is 
 delegated by another, no matter what the subject matter be, 
 cannot so use it, as to bind his constituent, to do, or permit 
 to be done, that which might be ruinous to him, and which, 
 at the same time, neither of the parties, could in all human 
 
39 
 
 probability have contemplated. The cases to this point in 
 the books are numberless, and it is the constant practice of 
 the courts of law and equity, to give relief in all such cases. 
 The ground upon which relief is given, is unquestionably 
 just. It is amongst the immutable principles of reason and 
 of sound sense, and the stupendous structure of the common 
 law, is but an improved system of reason and equity, founded 
 in the very nature and fitness of things, that no man would 
 willingly confer on another, a power to do any act, which, 
 by construction, is to deprive him of an essential right, or to 
 do him an essential harm. The rules which regulate the 
 transactions of individuals, under general or special powers, 
 are equally applicable to nations, in the interpretation of 
 powers, from a Prince to his Ambassador or General, and in 
 the interpretation of treaties between one sovereign state and 
 another. All these subjects, as ^ they relate to nations, have 
 been fully treated by the writers on international law. Gro- 
 tius, in treating of the interpretation of contracts, or conven- 
 tions, or agreements, and public treaties, amongst many pas- 
 sages which mi<?ht be cited, says. “Since it is impossible to 
 
 •/VS.":; and spociiy ..ver . ;;.v; l ' 1 
 
 eservittg the liberty of exempting such cases, as the party 
 could, were he present himself, exempt, but this must not be 
 lone, without abundance of caution, and when there ate suffi- 
 cient tokens for it.” — Lib. 2, chap. 1 <5, sec. 26. 
 
 a One infallible token,” says he, “ that there ought to be 
 an exemption, is, when to adhere precisely to the letter, 
 would be unlawful, that is repugnant to the laws of God or 
 nature , for there are some things that arc naturally exempt- 
 ed, though they are in no wise comprised in the sense of the 
 law.” — Ibid. 
 
 “ Another token of restriction is, when to stick close to the 
 letter , is not absolutely, and of itself unlawful ; but when 
 upon considering the thing with candour and impartiality, 
 it appears to be too grievous and burthensome to be borne.' 7 
 Ibid. 
 
 Let it now be asked, my fellow-citizens, whether the ne- 
 gotiators of toe present convention had in view, manumitted 
 slaves of the West-Indies, as the seamen, who were to navi- 
 gate the ships trading to South-Carolina. Was it possible 
 for the American Commissioners to foresee and specify eve- 
 
40 
 
 ry accident,” and that there would so soon u be a necessity 
 for reserving the liberty of exempting the cases of bit e'e 
 subjects Would not, “ the party herself, (South-Caroli- 
 na) who delegated the power to the President and Senate to 
 make the treaty,” would not she, “had she been present, 
 have herself exempted these cases ?” — Is it not “ adhering 
 precisely to the letter ” of the instrument, to say that ne- 
 groes were then contemplated as subjects ? Amongst “the 
 things naturally exempted, though they are in no wise com- 
 prised in the sense of the law,” ought not colored subjects to 
 be exempted, who are dangerous to the peace and quiet of the 
 constituent in the treaty ? Is not the extra judicial construc- 
 tion of Judge Johnson “ sticking ” (according to Grotiusq 
 “ too close to the letter,” and last of all, “ upon considering 
 the thing with candour and impartiality ,” does it not “ ap- 
 pear to be too grievous and burthensome to be borne,” by 
 the community of Charleston, and of the State. 
 
 Cut it is impossible to look into Vattel, Grotius, and Puf- 
 fendorf, without perceiving, from the general principles, laid 
 down by them, that no public Ambassador, or General, how- 
 ever unlimited his power or instructions, can, in any treaty 
 or contract for his sovereign, surrender a right, the exercise 
 of which is essential to the safety of the state. If he does, 
 the sovereign is not bound to ratify the convention. The 
 reason is obvious. Self-preservation, as we all know, is 
 laid down by the writers to be the first law of nature ; and 
 as it is “the just and rational application of the law of 
 nature, or of its principles, to the affairs and conduct of 
 Princes and States, which constitutes the particular science, 
 called the Law of Nations,” hence it necessarily also be- 
 comes a fundamental principle, in the law of nations, that 
 a State never can surrender a right, the exercise of which 
 Is indispensable to its safety. It is a right inherent in every 
 sovereign State; and it matters not, whether a State be in 
 league or confederacy with others or not, or whether her so- 
 vereignty be entire or divided, she still possesses, according 
 to every writer on international law, the right to protect her- 
 self. To deny this right to South-Carolina, who, at the first 
 treaty of peace, was, and still is, a sovereign State, is to take 
 from her that first, that unalienable attribute, which is the 
 foundation of all sovereignty, and without which it is absurd 
 
41 
 
 ter say, sovereignty can possibly exist. I will not tire my read- 
 ers (for I am writing plainly for the public, and not as a law* 
 yer,) with long quotations from these writers. All lawyers 
 who read this will know, that my principle is as clear as any 
 which is known in the law of nations. I will cite but one 
 passage — Vattel, in treating of the duties which nations and 
 states owe to themselves, says — “ A nation or state has a 
 right to every thing which can secure it from threatening 
 danger, and to keep at a distance ichatever is capable of 
 causing its ruin ; and that, for the very same reason, that 
 establishes its right to the things necessary to its preserva- 
 tion — Vat. Lib. 1. ch. 2. sec. 20. 
 
 I put it now to anj’ one to say, whether the evil, which the 
 State law designs to avert, by forbidding the introduction of 
 tree negroes amongst our slaves, is not as much a “ threaten- 
 ing danger ” to the good people of South-Carolina, and will 
 not be as much “ a cause of ruin ” to them, their families 
 and their interests, “ if not kept at a distance as any dan- 
 ger, which could have been contemplated by this great scho- 
 lar and civilian, when he wrote his immortal work. I do 
 aver, that the free and uninterrupted ingress of a colored po- 
 pulation into this State, from the North, and elsewhere, with 
 their known habits, feelings and principles, animated and 
 emboldened as they are, by the philanthropy of the day, and 
 by the events, which Europe in its throes and convulsions 
 casts upon mankind, is the most formidable evil, which South- 
 Carolina has to look upon in these her days of apparent quiet. 
 To permit such persons, with such principles, to have a foot- 
 ing on our soil, is to introduce a moral pestilence, which must 
 destroy subordination in the slave, and with it the State it- 
 self. Am I to be asked to prove that which is, or ought to 
 be, within the observation and experience of every intelligent 
 inhabitant of the land ? This would be unfair. Every one 
 knows, that this is not an imaginary, but an actual evil. It 
 is moreover an evil, which from its very nature, requires 
 more precaution to avert, than any other. It is a moral con- 
 tagion. It is the Upas tree, whose touch is death. It is not 
 an open, but a secret enemy, deeply concealed in the thoughts, 
 where no laws or police can reach him, and only appears as 
 occasion requires. It is a pestilence, which walks in darkf 
 ness, and a sickness which destroys in the noon-day. It is 
 
42 
 
 an evil, which comes from a distance, slow and cautious Tn 
 every step, stealing into our community, as a thief in the 
 night. Insidious it is in every attack. It is not the bold 
 dagger of the open assassin, which, ere it reaches the great 
 fountain of life, some arm may be found happily to avert. — 
 But it is he, who upon the secure hour, steals 
 
 “ With juice of cursed hebenon in a phial,. 
 
 And in the porches of the earsdotlipour 
 The leperous distilment; whose effect 
 Holds such an enmity with blood of man. 
 
 That swift as quicksilver,it courses through 
 The natural gates and alleys of the body ; 
 
 And with a sudden vigor it doth posset 
 And curd the thin and wholesome blood." 
 
 Is then, my fellow-citizens, the introduction of a colored 
 population an evil, or is it not ? What is it, but the juice of 
 cursed hebenon, which the Abolition Societies of the North, 
 and elsewhere, would pour into the porches of the ears of our 
 domestics ? Can any distilment be more leperous, than 
 the principles which are embattled against our peace, and 
 which these colored persons in ships, serve to communicate. 
 I conceive there are none. They hold such an enmity 
 with the blood and wholesome policy of the State, that it must 
 posset and curd, and with a sudden vigor too, if the distilment 
 be but steadily poured in the “ secure hour of our sleep.” 
 This then is an evil, and it is an evil which must be kept 
 at a distance. If it is permitted to steal upon, us, it will in- 
 troduce the poison, which, by its swift coursing through the 
 natural gates and alleys of the body of the State, will 
 
 " dispatch us all, 
 
 Cut off in the blossoms of our sins ; 
 
 No reckoning made, but sent to our account^ 
 
 With all our imperfections on our heads. 
 
 NO. 10. 
 
 I trust, I have so far shewn, that the necessity for the 
 State to take care of itself, is clear and obvious. But, sayf 
 the Judge, if the StatejaX&ne, is to judge of the necessity^ 
 
45 
 
 where is this to lancf us? Is it not asserting the- right in each 
 State, to throw off the Federal Constitution at its will and 
 pleasure, and thus to make the Union a rope of sand ? I an* 
 swer, No. This does not necessarily follow. I contend, that 
 this State may claim the right of judging, at what time and 
 in what manner, she ought to exclude a foreign black popu- 
 lation from her limits, and that she shall exercise this right, 
 and yet the Union shall not be endangered, but the Constitu- 
 tion be yet preserved in its full vigor and beauty. It is, be- 
 cause the Judge overlooks the inherent rights of the indivi- 
 dual States, expressly reserved to them by the Constitution, 
 that he falls into this error. Who would ever think of taking 
 up a question of this nature in the abstract ? Must not that 
 view be necessarily a limited and imperfect one, which would 
 throw aside the peculiar circumstances, under which the Con- 
 stitution of the United States was formed. This is a question 
 mi generis , and to say, that it can receive a liberal and fair 
 consideration, without adverting to those circumstances, and 
 to the probable motives which must have influenced this 
 State, in coming into the compact, is to maintain a wrong 
 principle. It is the height of unfairness, to reason upon any 
 abstract proposition, in an affair of this magnitude. Let us- 
 then advert to the situation, and the feelipgs of the States, 
 when they formed our present happy Constitution. 
 
 Under the old Confederation, the States were desirous, 
 that a more efficient form of government should be adopted. 
 But there were difficulties, and “■ these difficulties were in- 
 creased by a difference amongst the States, as to their situa- 
 tion, habits, and ptfrticular interests.” All the States were 
 anxious, that the general interest and safety should be better 
 provided for ; and yet a when the price or sacrifice came to be 
 mentioned, which it was necessary for each to make', each 
 State, as is natural, was desirous to retain as much of its so- 
 vereignty, as it could. What was to be done ? Nothing (as 
 the President of the Convention says) but for “ each State to 
 be less rigid on points of inferior magnitude , than might be 
 expected, under other circumstances.” As soon as this prin- 
 ciple was acquiesced in and adhered to, the great work was 
 finished ; and the present Constitution was presented by Ge- 
 neral Washington, as President of the Convention, for the 
 consideration and acceptance of the States, “ as the result of 
 
44 
 
 \i spirit of amity and mutual forbearance, which tii e-pem* 
 fiarity of our political situation rendered indispensable.” 
 This reference to the principles of compromise, which is 
 the characteristic feature of our happy government, and which 
 distinguishes it from every other, is very important to be no- 
 ticed in this place ; and it is still more important, to be as- 
 sured, as we are, by the Convention itself, that the great 
 principle upon which each State was understood to act, was, 
 that it was “ not to be. rigid on points of inferior magni- 
 tude.” It follows then, that on points of vital importance, 
 they were expected to be rigid ; and it could never be con- 
 ceived, that upon a point of such magnitude to South-Caro- 
 lina, as the regulation of a black population found within her 
 limits, she could have been otherwise than rigid, if her right 
 to be the sole and sovereign judge on this subject, had then 
 been a matter of doubt. What was the situation of South- 
 Carolina when she accepted this Constitution ? To use a fa- 
 miliar phrase, lately introduced, she was a slave-holding 
 State, a term by no means unappropriate to our present pur- 
 pose. She was then , and is noio, a State, whose prosper^ 
 and existence depends upon the labor of her slaves. From 
 time immemorial, all her institutions, and her whole domestic 
 polity and jurisprudence, have been founded upon the princi- 
 ple, that negroes and mulattoes in her land, whether slave or 
 free, had no civil or political rights. That, as to the regula- 
 tion of a colored population, she was, and ought to be, the 
 best and only judge. She has not maintained this right at 
 one time, and abandoned it at another; but in every political 
 condition in which she has ever been placed, whether as a 
 colony of Great Britain, as one of the old Confederation, or 
 as a member of the late Federal Compact, she has invariably 
 maintained, and adhered to this principle. Her discretion 
 alone, has been the sovereign rule of her conduct. She opens 
 her ports for the importation of Africans, and she shuts them 
 again at her pleasure. She admits at one time, slaves and 
 persons of color, to be brought from her Sister States, and she 
 again prohibits, and again admits them. She excludes, by 
 statute, slaves, and persons of color, bond and free, from the 
 West-Indies, and the continent of America, and from all oth- 
 er parts. In her laws, all free colored persons are treated as 
 if they were slaves; the one as much the subject of the negro 
 
45 
 
 act as the other. Her right to do all this, was never ques- 
 tioned. When she goes into an Union of the States, she is 
 in the full exercise and enjoyment of her inherent rights. — 
 She carries with her, feelings and interests, certainly very 
 different from those of her Sisters of the North; and though 
 she might not be disposed to be rigid, as recommended by 
 the Convention, on minor points, yet upon such a point, as 
 the consideration of this subject involves, it would have been 
 madness in her, not to have rejected the Constitution, as an 
 insult to her understanding and feelings, and to have sought 
 for some other alliance, whose friendship would not be death 
 to her. If she did not at that day, make an express provision 
 for the exercise of this power over blacks, which might come 
 into her limits, it was because no man at that day doubted her 
 rignt, or her power to exercise such a light. She did not 
 then feel, that it would so soon become necessary, to exclude 
 from her territory, even black seamen from abroad. There 
 were then afloat no doctrines of African emancipation. If 
 they existed at all, they existed only in the minds of a few 
 pseudo-philanthrophists. These doctrines had not stalked 
 abroad, as now, “ shaking from their hair horrid pestilence." 
 The Abolition Society of Philadelphia, the British Associa~ 
 tion in London, and the Amis des Noirs in Paris, had not 
 then been formed. The National Assembly of France, had 
 not yet promulgated their decree, to give privileges to their 
 colored colonists, and the Abbe Gregoire had not written 
 that celebrated letter, which was afterwards the torch, which 
 lighted up the insurrection in St. Domingo Why do I 
 say, that these things had not then happened ? I forget the 
 French Revolution itself. This memorable event, from 
 which came licentiousness, as well as liberty — irreligion, 
 atheism, and every species of madness, and every wrong 
 principle of enthusiasm ; this volcano, which vomited from 
 its crater, every doctrine which was calculated to overturn all 
 governments, and to unsettle the principles of obedience, and 
 subordination in the minds of men, whether bond or free — 
 this political Vesuvius was then quiet and harmless. Not 
 even those who were peaceably cultivating their vineyards 
 around its fertile borders, heard any rumbling or noises, which 
 could portend the dreadful irruptions of fires, which so soon 
 succeeded, and which have at intervals, continued to araase 
 
46 
 
 the nations. South-Carolina was then, unsuspicious, that it 
 would be reserved for a Judge of the United States’ Bench, 
 from her own bosom, to be the first to volunteer an opinion, 
 that in giving up the right of regulating her commerce, she 
 ever intended, that commerce should be so regulated, as to 
 have the blacks of the West-Indies and of the world, to be 
 forced upon her against her will. Unsuspicious, however, 
 as she was, of what was so soon to happen, it appears that 
 she gave early proofs of her jealousy, lest State rights should 
 be swallowed up in the Sovereignty of the General Govern- 
 ment. As if fearful, that some interference with the Southern 
 States, as to the regulation of her domestic policy, might be 
 claimed under the Constitution, (though not exactly the 
 one, now insisted upon in the case of Elkison) South-Ca- 
 rolina was amongst those States, whose conventions at the 
 time of their adopting the Constitution, were uneasy, and 
 who <£ expressed a desire, in order to prevent misconstruc- 
 tion and abuse of its powers, that further declaratory and re- 
 strictive clauses should be added.” It is here important to 
 notice, that the eleventh article in the proposed amendments, 
 which were submitted to th ' States, :u. i which was after- 
 ward* adopted, came from the Convention of South-Carolina. 
 It is in these words : — “ The enumeration in the Constitu- 
 tion, of certain rights, shall not be construed to deny or dis- 
 parage others, retained by the People.” 
 
 The other amendment on the same subject is in these 
 words : — “ The powers not delegated to the United States, 
 by the Constitution, nor prohibited by it to the States, are 
 reserved to the States respectively . and to the People .” The 
 insertion of these two clauses in the Constitution, as if one 
 was not sufficient, speaks volumes. Whilst these two amend- 
 ments shew, that there were powers reserved to the different 
 States, they establish, at the same time, most unequivocally 
 and clearly, that the States are not to be deprived of inherent 
 rights, or of sovereignty not actually surrendered, by mere con~ 
 struction, or implication. But Judge .( o hnson would deprive 
 this State of her inherent rights, and by implication. Accord- 
 ing to his opinion, the right of South-Carolina, to exclude fo- 
 reignf ree negroes from her limits, is destroyed by the implied 
 powers of Congress. His position is, that to introduce Jack 
 British subjects as seamen into our ports, is incident to navi- 
 
47 
 
 gation and commerce, and that, as Congress alone can regu- 
 late commerce, she can regulate it in any way she pleases. — 
 He kindly admits, that the black seamen may be confined to 
 their ships, if it be considered dangerous for them to go 
 abroad. This power, he thinks, may be lawfully exercised 
 by his native State. 
 
 But where the army of constables is to come from, who are 
 to confine those seamen on board ; who is to pay them, and 
 how communication is to be avoided, when the vessels are 
 along side the wharves, and our own slaves are working on 
 board, we are not informed. 
 
 <c Most excellent Judge, 
 
 A Daniel come to judgment ; Yea, a Daniel ! 
 
 You know the law, your exposition 
 Hath been mostsound-- 
 
 Oh wise and upright Judge 
 
 How much elder art thou than thy looks.” 
 
 When the Judge comes to speak of the blaclc merchants, 
 or the black supercargoes, these he thinks have a right to 
 occupy houses and warehouses in our city, for the purposes 
 of commerce. The treaty limits no time, and he says, if 
 we, the people of South-Carolina, dare to molest them, it is a 
 declaration of war against Great Britain. His words are: 
 “ If our fears extend to the merchant, the supercargo, or mas- 
 ter, being persons of color, I acknowledge, that as to them, 
 the treaty precludes us from abridging their right to free in- 
 gress and egress, and occupying houses and warehouses for 
 their commerce. As to them, this law is an express infrac- 
 tion of the treaty. i\o such law can be passed consistently 
 with the treaty, and unless sanctioned by diplomatic arrange- 
 ment, the passing of such a law, is tantamount to a declara- 
 tion of war. ” 
 
 Now, my fellow-citizens, around whose hearts are entwined 
 every feeling which can bind you to your loved and native land, 
 what is this but to assert, that the President and Senate of the 
 United States have the indisputable right, so as to bind this 
 State by treaty, as to admit the black subjects, merchants and 
 traders of Great Britain (and she will probably have a few hun- 
 dred thousand of the n if W ilberforce he not confined in a 
 mad-house) into our State, and here to reside and remain as 
 
48 
 
 merchants, (for the words of the treaty go rims far.) and thui 
 if the State of South-Carolina resists such an assumption of 
 power as this, she violates her obligation to the United States. 
 What is this, but to say, that if the people of the Norther* 
 States shall desire a commerce with the Emperor of Hayti, 
 (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 that we must quietly and tamely submit, because this 
 State gave up to Congress the right to regulate commerce. 
 Under these few words “ shall regulate commerce ,” a State 
 right of greater magnitude, than any she has ever claimed, or 
 exercised, is to be swallowed up in that tremendous gulph, 
 the implied powers of Congress. So says Judge Johnson, 
 in an extra judicial opinion, published to the world ; publish- 
 ed too, against a determination which he previously promul- 
 gated in a printed decision, that he never wished to see a nisi 
 prius opinion of his in print. The amiable and distinguish- 
 ed Judge Story’s nisi prius reports ought not, ip the mind 
 of our Judge, to go down to posterity, until they are revised 
 and confirmed by some tribunal of dernier resort. But every 
 thing that comes from his extrajudicial pen, no matter how 
 Tiurtful to the public weal, is to be submitted to without fur- 
 ther review. 
 
 “ Now in the name of all the Gods at once, 
 
 Upon what meat doth this onr Cajsar feed, 
 
 That he is grown so great 5 Age, thou art sham'd, 
 
 Rome, thou hast lost the breed of noble bloods — 
 
 When went there by an age since the great flood, 
 
 But it was fam’d , with more than with one man ? 
 
 When could they say, till now, that talk’d of Rome, 
 
 That her wide walls encompass’d but ONE MAN!' 
 
 NO. 11. 
 
 I have just adverted to the peculiar circumstances under 
 which the Federal Compact was formed, which is now the 
 happy bond of Union of all the States ; and I hope I have 
 satisfied many of my fellow-citizens, that South-Carolina, at 
 
49 
 
 the time of her acceptance of the Constitution, did not intend 
 to give up that essential part of sovereignly, which is indis- 
 pensable to her internal safety ; and that in particular, she 
 never could have contemplated to abandon such a right, as 
 that of regulating, at her discretion, any colored population 
 which might come within her limits. To hear some persons 
 speak on this subject, one would be led to suppose, that the 
 State sovereignties were all merged in that of the General 
 Government ; that the powers retained by the States are un- 
 important and few; that they surrendered every essential at- 
 tribute of sovereignty, and that they are now only exercising 
 the duties, and acts of so many corporations. This certainly 
 was not the opinion of those who framed the Constitution, and 
 I trust, that I shall briefly shew, that it is not a correct opi- 
 nion. Let us see, in the .first place, what were the opinions 
 of those, by whose influence the Constitution was made agree- 
 able to the people at large. In the ‘ Federalist ," 1 which was a 
 series of numbers, written by Hamilton, Jay, and Madison, 
 for the purpose of removing the objections daily urged against 
 the new Constitution, and which woik has been permitted to 
 be read as authority in our Courts, the authors, in discussing 
 the supposed danger from the powers of the Union to the 
 State Governments, say, “ The State Governments may be 
 regarded as constituent and essential parts of the Federal Go- 
 vernment ; whilst the latter is no icise essential to the opera- 
 tion or organization of the former. Without the intervention 
 of the State Legislatures, the President of the United States 
 cannot be elected at all, and the Senate is elected absolutely 
 and exclusively by the State Legislatures. Even the House 
 of Representatives, though drawn immediately from the peo- 
 ple, will be chosen very much under the influence of that 
 class of men, whose influence over the people obtains for 
 themselves an election into the State Legislatures. Thus, 
 each of the principal branches of the Federal Government, 
 will owe its existence, more or less, to the favor of the State 
 Governments. On the other side, the component parts of the 
 State Governments, will, in no instance be indebted for their 
 appointment to the direct agency of the Federal Govern- 
 ment.” — 1 vol. Fed. 306. 
 
 Again — “ The powers delegated by the Constitution to 
 the Federal Government, are few, and defined, Those which 
 5 
 
50 
 
 remain to the State Governments, are numerous and inde- 
 Jtned. The former will be exercised on external objects, as 
 war, peace, negotiation, and foreign commerce, with which 
 last, the power of taxation will for the most part be connect- 
 ed. The powers reserved to the States, extend to all the 
 objects, which in the ordinary course of affairs, concern the 
 livcSy liberties , and properties of the people, and the inter- 
 nal order , improvement, and prosperity of the State.” — 
 Ibid, 308. 
 
 There cannot, I think, be a more general and extensive 
 power allowed to the States, as inheient rights, than those 
 which might be enumerated, as coming within the meaning 
 of these passages. If the powers reserved to the States, do 
 extend to all the objects, which in the ordinary course of af- 
 fairs, concern the lives, liberties, and property of the inhabi- 
 tants, and the internal order of the State, as is the opinion of 
 these writers, I entreat any one of my readers, to point out 
 an object, which has so ordinarily concerned the people of 
 South-Carolina, as the regulation of a black population with- 
 in her limits, whether bond or free. From the first settlement 
 of the State, until the present period, the regulation of these 
 people has been in the ordinary course of affairs, the princi- 
 pal subject of our polity and jurisprudence. The time is not 
 in the memory of man, when these people were not the pecu- 
 liar subjects of police regulations. But why should I place 
 the question where it ought not to rest, namely, in the opi- 
 nion of any sect of men ? Let us see, how stands the question 
 as to fact. Is South-Carolina at this moment an independent 
 State ? I answer, she is clearly so. How does this appear ? 
 
 I answer, she was independent when she came out of the Re- 
 volutionary War. This is proved, first, by the Declaration 
 of Independence — That these colonies are, and of right 
 ought to be free, sovereign, and independent States,” and by 
 the recognition of this independence, in its fullest extent, by 
 Great Britain, at the treaty of peace. Let us trace the his- 
 tory of the States to the confederation. We here find, in the 
 second article of this compact — “ That each State is acknow- 
 ledged, to .retain its sovereignty, freedom, and independence, 
 and every power, jurisdiction, and right, which is not by this 
 confederation expressly delegated to the United States, in 
 Congress assembled.” Their sovereignty and independence 
 
5 \ 
 
 then being indisputable, at these t'.vo periods, lias any a cl 
 been done, which has since deprived them of all sovereignty 
 whatever ? Did they give up all sovereignty by entering into 
 the Federal compact ? I should conceive not. “ The people 
 of the United States,” says the historian of South-Carolina, 
 “ gave no new powers to their rulers, but only made a more 
 judicious arrangement of what they had formerly ceded. — 
 They enlarged the powers of the General Government, not 
 by taking from the People , but from the State Legislatures.” 
 The sum and substance of all that passed at that day, be- 
 tween the People of the United States and their Governors, 
 was simply this : We, the people of the respective States* 
 finding it totally incompatible with the feelings, habits, opi- 
 nions, and interests, which are so dissimilar in the different 
 sections of our country, to unite ourselves in one consolidated 
 Government, for every object, internal as well as external', 
 are willing to unite for such external objects, as we all agree 
 can be best promoted by union ; and, to this end* we will 
 confer any powers, or sovereignty, which may be necessary. 
 But as to the regulation of our local interests and concerns, 
 upon which there must be a perpetual difference of opinion, it 
 is proper, that the power to regulate these, should remain 
 where it is now lodged, that is, in the People of each State, 
 who, as to all matters of State policy, shall be supreme: The 
 
 Constitution of the United States, it must be remembered, 
 resembles nothing in history, ancient or modern, it is not a 
 league or confederacy, because in all confederacies, the acts 
 of the federal head bear upon States, and not upon individu- 
 als, . Front the celebrated Achaean League, in which, for 
 upwards of a century, the Grecian States confederated against 
 their powerful neighbors, until the time of the Confederation of 
 the American States, we find nothing, which, as to its spirit, 
 principles, or form, can bear any thing like analogy to our 
 own glorious Constitution. It is a Constitution, sui generis, 
 adapted to a state of society and things, which never before 
 did exist, and probably never will again occur in this world. 
 It is an anomaly in the history of Governments. It is not a 
 simple, but a compound government. It is federal, and it is 
 consolidated. It is made up of so many small governments, 
 all revolving round one great sovereignty, in each of which, 
 ttie people are the fountain of all power, and each of which is 
 
vex supreme, as to the purposes for which each was design- 
 ed. The whole fabric is so tastefully wrought, so beautiful- 
 ly contrived, and the parts so admirably fitted and arranged, 
 that whilst it forms a perfect union, “ establishes justice, in- 
 sures domestic tranquillity amongst the States, promotes the 
 general welfare, and secures the blessings of liberty to all,” 
 it at the same time secures to each particular State, in which 
 the people are again supreme, every right of sovereignty, 
 which is necessary to be exercised for the internal order, pros- 
 perity, and safety of its inhabitants. Such is this stupendous 
 work of human wisdom — the Constitution of the United 
 States. 
 
 That the State sovereignties were not destroyed, but only 
 limited by the new Constitution, appears to have been the 
 sense of the Convention itself, who framed it. In the letter, 
 which General Washington was directed to transmit to 
 Congress, by the unanimous order of the Convention, there 
 is this passage, “It is obviously impracticable in the Federal 
 Government of these States, to secure all rights of indepen- 
 dent sovereignty to each, and yet provide for the common 
 interest and safety of all. Individuals entering into society, 
 must give up a share of liberty, to preserve the rest.” 
 
 This apology of the General Convention, that «f/the rights 
 of sovereignty could not be preserved to the States, implies 
 most strongly , that in their view, many were retained. In 
 the same chapter of the i Federalist / which I have already 
 alluded to, there is the same admission. Although, in most of 
 (lie examples of other confederacies, “ the system has been 
 so dissimilar from that under consideration, as greatly to 
 weaken any influence concerning the latter, from the fate of 
 the former ; yet, as the States will retain, under the proposed 
 Constitution, a very extensive portion of active sovereignty , 
 the influence ought not to be wholly disregarded.” From 
 opinions, entitled to so much weight, and all of them express- 
 ed too, after the Constitution was finished, and before any 
 amendments were proposed by the States ; let us again recur 
 to the two memorable amendments, already quoted in a for- 
 mer number. It is in these amendments, that the reserved 
 power of the States is secured. This part of the Constitu- 
 tion, is the rock, upon which each State has deposited its 
 first, and most valuable right of self-govei nment, in matters 
 which peculiarly concerned itself, and no other State, 
 
53 
 
 I have dwelt upon this topic, because I have deemed it im- 
 portant to press it upon the minds of my readers, that the States 
 are still free, sovereign, and independent, as to every object of 
 internal polity and government, and that the principles, which, 
 according to Vattel, apply to any independent State or Na- 
 tion, as to the duty it owes itself, applies to South-Carolina, 
 in the present question, in the fullest extent : and hence I es- 
 tablish, that, as by the law of nations, a nation has a right to 
 do any thing for its self-preservation, so South-Carolina has 
 the right to pass the law under which Elkison has been ar- 
 rested. But, whether she be sovereign, or whether she be 
 not, it is certain, that among the powers reserved to the peo- 
 ple, was the inherent right in every State, to take care of it- 
 self. That South-Carolina, therefore, in excluding from her 
 limits a free colored population, is only exercising one of the 
 many undefined powers, reserved to the States, by the Con- 
 stitution. There is one part of the Constitution, which I 
 think very applicable to the present discussion. In the 4th 
 section of the 4th article, it is provided, that the United States, 
 as a matter of course, is to protect each State against inva- 
 sion ; but not against domestic violence in any State, until 
 an application be made by the State Legislature, or by the 
 Executive, if the Legislature cannot be convened. Here then 
 it appears, that the putting down domestic violence, properly 
 belongs to the States, and not to Congress. It Is probable, 
 that this stipulation was insisted on, with a viewtothe Southern 
 States, those being the only States, in which a danger of this 
 nature was most likely to occur. But how, I ask, is a State, 
 to guard against domestic violence, if she is not to be the 
 sole and sovereign judge, as to the means which are best 
 adapted to that end. If the exclusion of a free colored popu- 
 lation of other States, or Countries, be notone of the acknow- 
 ledged means of warding off this species of danger, then there 
 is no occasion to think, or talk, or write more on the subject. 
 To lay us under an obligation of guarding against, or potting 
 down domestic violence, and, at the same time, to deprive us 
 of the precautionary means, which we, who are the best 
 judges, shall deem proper to resort to, is to cast a reflection 
 upon the great men who framed the Constitution, which they 
 do riot merit. 
 
 5 * 
 
54 
 
 KTO. 12. 
 
 The Judge in his opinion says, that the power given to 
 Congress by the Constitution, is “ to regulate commerce 
 with foreign nations, and among the several states, and with 
 the Indian tribes;” and he triumphantly asks the question — 
 
 “ If Congress can regulate commerce, what commerce cun it 
 not regulate ?” I have answered in my two first numbers, 
 that they cannot so regulate commerce by treaty, as to inter- 
 fere with the rights secured by the Constitution to any other 
 branch in the government, or to the states respectively. I 
 have specified some of the cases, in which such a treaty 
 would be void, I now repeat it would be void, if the treaty 
 were to permit foreigners, to import their goods into some 
 ports onhigher or smaller imposts, than others. It would be 
 void if the treaty were to give any nation, the liberty of 
 bringing slaves into our port. I think if in answering the 
 Judge’s question, I can name only one case, in which com- 
 merce cannot be regulated at pleasure, in a treaty, his 
 triumph is at an end. I trust I have given two very satisfac- 
 tory cases. 
 
 I now proceed to show, that the arrest of colored seamen 
 in British ships is not an interference with the liberty of 
 commerce granted by the treaty. The words of the Coven- 
 tion are, “There shall be between the United States of Ame- 
 rica, and all the territories of his Britannic Majesty in 
 Europe, a reciprocal liberty of commerce. The inhabitants 
 of the two countries respectively, shall have liberty, freely 
 and securely to come with their ships and cargoes, to all such 
 places, ports and rivers, in the territories aforesaid, to which 
 other foreigners are permitted to come ; to enter into the 
 same, and to remain and reside, in any parts of the said ter- 
 ritories respectively ; also to hire and occupy houses, and 
 ware-houses for the purposes of commerce; and generally 
 the merchants and traders of each nation respectively, shall 
 enjoy the most complete protection and security for their 
 commerce, but subject always to the laws and statutes of 
 the iwo countries respectively.” The difference between, 
 this article, and that in Jay’s treaty, is, that in the latter, « 
 
55 
 
 liberty of li commerce and navigation ” is agreed on, 
 whilst in the present treaty, the word “ navigation ” is omit- 
 ted. Another difference is, that in this treaty, the liberty of 
 ingress is to those places only, to which other foreigners are 
 permitted to come. In Jay’s treaty the ingress is unlimited. 
 In every other respect the sense of the two articles is the 
 same. 
 
 Some persons may deem these differences to be immaterial. 
 
 I however think otherwise. That both articles were before 
 the commissioners is evident, from the words being the 
 same, excepting, where by avoiding surplus words, 
 improvement seemed necessary. What could be meant 
 by the omission of the word “ navigation ,” in the 
 present treaty ? The Judge may say, that it was surplus- 
 sage. But such is not the fact. Commerce and navigation, 
 are nots ynonimous terms. The two words have definite, and 
 at the same time distinct meanings. Commerce in its usual 
 sense, is restricted to an intercourse between one nation and 
 another, for the purpose of exchange of commodities. Na- 
 vigation u is the mode by which vessels are to be conducted 
 from one port to another, in the safest, shortest and most 
 commodious way.” Navigation , it is true, is incident to com- 
 mercial relations so far, that commerce cannot . be carried on 
 without ships. But it may be easily conceived, that an un- 
 limited liberty of commerce may be stipulated for, and yet 
 an unlimited liberty of navigation not be intended. The in- 
 tercouse by ships, is not to be conducted, so as to be altoge- 
 ther commodious to one party, and to the other, to be pro- 
 ductive of inconvenience, which might, by some, be thought 
 to be the case, where an unlimited liberty of navigation is 
 stipulated for. But a general liberty of commerce, certainly 
 gives no right to one party, to make the mode of navigating 
 his vessels in a way very disagreeable to the other. It 
 merely gives such rights of navigation, as are necessarily 
 incident to commerce. Might not this have been the view, 
 with which the alteration was made. There was certainly 
 some reason for it, and the above is as probable, as any other 
 which might be given. 
 
 Again : by the present treaty, all places, as to ingress, are 
 excepted, which to which other foreigners are not permitted 
 to come. This stipulation, as I have said, was not in the 
 
56 
 
 old treaty. It may be said, that this means, that neither 
 nation, should be permitted to trade with any port or colony 
 of the other, from which foreigners generally are excluded — 
 Admitted ; but it also has another meaning, more definite 
 than the above. It is, that a British inhabitant, shall come 
 for the purpose of commerce, to such places only in the ter- 
 ritory of the other, to which other foreigners are permitted 
 to come. The words are, the inhabitants of the two coun- 
 tries respectively, shall have liberty to come,” &c. In the 
 clear sense of this article, the exclusion is confined to those 
 who come with or within the ships. Now, if I can shew, that 
 at the time of making this treaty, which was in 1815 (renew- 
 ed in 1818) South-Carolina was a place, to which no in- 
 habitant of a foreign country could come, if he were but a 
 free person of color ; then, most clearly, an inhabitant 
 of England, who is a man of color, cannot be admitted ; for 
 the treaty, only gives British inhabitants ingress where 
 foreigners generally have ingress. By an act, then, of this 
 state, passed on the 20th December, 1800, which is fifteen 
 years before the present treaty, it is declared, that it shall 
 not be lawful for any free negro, or mulatto, to enter 
 into the state, after the passage of the act, by land of 
 by water, under pain of being sold as a slave. This act was 
 made perpetual by the act of the 17th December, 1803, and 
 it is no>v in force, excepting by an act of December 1820, an 
 exception was made as to seamen. The act of 1822, takes 
 off again the exception as to seamen, and varies the mode by 
 which such persons are to be dealt with, who do enter the 
 state ; but it does not interfere further with the act of 1 820. 
 Thus, then, it appears, that the exclusion of all foreign 
 persons of color from South-Carolina, excludes within the 
 strict sense and meaning of the treaty, British people of 
 color, for they can be admitted only, where others are ad- 
 mitted. The Judge may say, this is taking the treaty in its 
 strictest sense. I would ask, which construction is most 
 rational, that which I have just given, or the construction of 
 Judge Johnson, that under the power of Congress to “ regu- 
 late commerce,” she may give the right by treaty, to any na- 
 tion, to fill our land with free negroes, mulattoes and mesti- 
 zoes, from all parts of the world ? 
 
 I will not dwell longer upon these two topics, but proceed 
 to my first position, in this number, namely: that the ex- 
 
5 ? 
 
 elusion of colored seamen, is not an interference with com- 
 merce, within the meaning of those who made the treaty. 
 I think no proposition can be more clear, than, that a liberty 
 of commerce in a treaty does not give one nation, a right so 
 to conduct it, as to endanger the peace, and quiet of the 
 other. All that is meant by a liberty of commerce, is, that 
 it is to be the subject to no unnecessary , or capricious re- 
 straint. There must be no such serious molestation or hin- 
 drance, as will deprive the party, of any of the substantial 
 benefits of the trade. It this moment occurs to me, that in 
 Jay’s treaty, the liberty was, to come with their ships and 
 cargoes, “ without molestation or hindrance, which words, 
 seem to be omitted, in the present convention, as through 
 abundant caution. But, be this as it may, nothing else, is 
 certainly meant, by a liberty of commerce, than that it 
 should be carried on without unnecessary restraint. To say 
 otherwise, would be to furnish nations, with causes of war* 
 every day in the year, and to the British particularly, a cause 
 of war would arise, whenever our quarantine regulations 
 are enforced against their vessels. These are restraints, not 
 imposed by the general government, but by the States . — 
 Though by an Act of Congress, the President, is authorized, 
 to order the revenue officers, and officeis commanding forts, 
 and revenue cutters, to aid in the execution of quarantine and 
 health laws of the State ; yet this circumstance, does not 
 make those laws, the acts of the general government : but 
 admit, that the detaining of a vessel under the guns of our 
 Fort Johnson, is a government act ; yet surely, imprison- 
 ment in the state prison at New-York, on a charge of felony, 
 under their health laws, or the recovery of heavy penalties 
 under our act, for a violation of these laws, is not an act of 
 the general government. These are the local regulations of 
 the two States. The idea, that a liberty of commerce gives 
 one party a right to carry it on as he pleases, without con- 
 sulting the convenience of the other party, is absurd. All 
 restraints, which are indispensable to the quiet and good or- 
 der of the place, in which it is carried on, must be submitt- 
 ed to. If British ships were navigated, entirely, by persons 
 of color, then as this would be a very serious restraint upon 
 the commerce, to take away her seamen, there might be 
 some ground to say, that this was an interference with com- 
 
58 
 
 rnerce, within the meaning of the treaty. But when, not 
 one in one hundred of her seamen, is black, to forbid the 
 ingress of these few, is not denying to her, a liberty of com- 
 merce, within the meaning of the convention. If no inter- 
 ruptions of any kind, are ever to be offered to trade, the 
 stipulations of treaties, never have been, nor ever will be per- 
 formed. Violations must daily take place in the enforce- 
 ment, as I have said, of the health laws of the different 
 States. This is sometimes so serious an interruption to 
 commerce, that voyages by them are often broken up, and 
 merchants ruined. Yet, as it is not a capricious, but a ne- 
 cessary restraint, to prevent cities from being scourged by 
 pestilence, the treaty thereby is not violated, if then Great 
 Britain, submits to the health laws of the States, which some- 
 times ruin her merchants, because she feels it a restraint, 
 necessarily enforced, will she, or can she call that an unlaw- 
 ful hindrance, which would guard the State from insurrec- 
 tion, or domestic violence. Is there any comparison be- 
 tween the two cases ? Here a cook, or steward, is taken 
 from a vessel, and there is not by this act, more inconveni- 
 ence, than if the same men, were confined by sickness, dur- 
 ing her stay in port. Butin New-York, if on the arrival 
 of a vessel from abroad, it is discovered, that during her voy- 
 age, a man has died on board of fever, she is adjudged an 
 infected vessel, her cargo which perhaps is perishable, is 
 landed, fumigated and placed in warehouses, the captain and 
 .crew confined to their own narrow limits in the ship, or 
 within the quarantine bounds ; the vessel is detained thirty 
 or forty days, and the voyage completely frustrated and 
 ruined. Now upon what principle of reasoning is it, that 
 the law of South-Carolina is to be regarded by Great Britain 
 as an interruption to the commerce she stipulated for in the 
 treaty, and the health laws of New-York are. to be acquies- 
 ced in ? Both of these stand upon the same footing. They 
 are both local, and state regulations. It would puzzle any 
 one to give me the answer. The state Act, then is not such 
 an interference with the liberty of commerce given by the 
 convention, as amounts to a violation of the treaty on the 
 part of this government. The commerce of Great Britain 
 .is still uninterrupted and enjoyed to its fullest extent. Not 
 oae bale less of Manchester goods, or one crate Jess o£ 
 
69 
 
 crackery-ware comes into the United States in consequence 
 of the operation of the state Law. The shipping interests 
 of Great Britain are not affected by the regulations we have 
 adopted to secure the quiet of the State. If ever these essays 
 should come under the eye of the Honorable Mr. Canning, 
 the present Premier of England, I am confident he will 
 smile, at Judge Johnson’s kihd apprehensions, lest the two 
 countries should be embroiled in war, by the arrest of Elki- 
 aon. What a thought ! That such a country as Great Bri- 
 tain, at whose helm, always stand the first of her Statesmen, 
 and which is united to us by so many ties of kindred, reli- 
 gion, laws, language and interest, should go to war, for the 
 sake of a few black cooks and stewards. Thanks be to 
 Heaven, that Mr Canning understands the interests of Great 
 Britain rather better, than our Judge Johnson does those 
 of South-Caroiina, his flative state. 
 
 1230. 13 . 
 
 I have shewed that the arrest of Elkison was not an inter- 
 ference with commerce, within the meaning of those who 
 made the treaty. I shall now briefly, and lastly, maintain 
 that the state act, does not interfere with the power given by 
 the states to Congress to regulate commerce. As to what 
 constitutes the regulation of commerce, no two merchants 
 eould possibly differ about it. The regulations of commerce, 
 embrace, as 1 conceive, every arrangement, as to the articles 
 to, be imported or exported, or as to duties and imposts, or 
 tonnage to be paid, or as to the preference of trade with this, 
 or that port or colony ; now crippling one branch of foreign 
 trade by high or prohibitory duties, and now encouraging an- 
 other by light impositions, or by no imposts, and so on. 
 These are the regulations of foreign commerce ; and these 
 only were in the contemplation of the states, when they gave 
 up to the general government, the iegulation of trade. The 
 want of some proper and uniform system, on which to build 
 commercial regulations for the states, was one of the first 
 evils felt by the people after the war. Under the confedera- 
 tion, different states laid on different imposts and tonnage, 
 
6d 
 
 and when restrictions were resorted to abroad, there was no- 
 retaliating effectually by counter regulations. The conse- 
 quence was, that there was a general decline of trade and 
 public credit in the states. If there be a fact which stands 
 undisputed in the history of the United States, it is this fact, 
 and I appeal to every historian for the truth of it : That the 
 want of uniformity as to imposts and tonnage in the different 
 states, was the principal inducement for the states to form a 
 new constitution. The states were at different times called 
 upon to “ enlarge the powers of the confederation, and to en- 
 trust them with the regulation of commerce even for a limit- 
 ed number of yeai‘3.” But as some complied with the call, 
 and others fettered their grants with improper conditions, a 
 unifotm system could never even be formed or agreed on. It 
 is believed by most people, that could there have been only 
 unifoimity as to the regulations of trade, under the old con- 
 federation, our present happy constitution had not been form- 
 ed. Who then can believe that when the great object of all, 
 w r as to correct an evil, which at that day distressed and per- 
 plexed the people more than any thing else, namely the want 
 of concert among the states, on this subject, and of uniformi- 
 ty in their imposts and tonnage, that it was ever intended that 
 the right to admit a class of people, dangerous to a particular 
 state, was ever included, as amongst the regulations of com- 
 merce. — All that was intended by the surrender of this right 
 to Congress, was, neither more, nor less, than that some 
 common head should so regulate the general trade of the 
 country, that the sufferings which the people experienced 
 from the obstructions which foreign nations offered to their 
 trade, might be at an end, and that they might thereafter av.ll 
 themselves of their natural advantages. Have not all these 
 ends been answered by the new constitution, and is it not 
 absurd to say, that because a black or mulatto seaman, here 
 and there is taken from a foreign ship, and confined in jail 
 till she leaves the port, that this state disputes with Congress 
 the power to regulate commerce ? And yet absurd as such 
 an idea is, it is nevertheless the extra-judicial idea of Judge 
 Johnson. 
 
 There is but one more topic which I deem worthy of no- 
 tice: It is that part of the commercial convention which 
 states that the reciprocal liberty of commerce shall be “ sub- 
 
61 
 
 ject always to the laws and statutes of the'two countries res- 
 pectively.” The Judge’s construction is, that it refers to the 
 laws of the United States , and not to those of the individual 
 states. I however, deny this construction as irrational. I' 
 cannot believe, that the negotiators intended that the ingress 
 for the purposes of commerce, should be in violation of the 
 local or municipal laws in the states. As they knew, or 
 ought to have known, that there were regulations in the dif- 
 ferent states which imposed some restraints upon commerce, 
 namely their health laws in particular ; it is more probable 
 that they meant local laws, than any other. The conveni- 
 ence of commerce in every part of the globe, is made to bend 
 to the police or municipal regulations of all sea-ports. 
 
 How is it, in a commercial contract, between one man and 
 another? Is not reference always had to the usage of trade, 
 and the particular usage is made as much a part of the con- 
 tract, as if it had been expressed in so many words? So it is 
 in all treaties between nations. Municipal regulations which 
 are established in the different ports, of the parties, are as 
 much to be respected, as if express provision were made in 
 the convention, that they should not be put aside. If mu- 
 nicipal or local laws were in the views of the parties, cer- 
 tainly then the laws of the states are principally embraced 
 in the proviso, for Congress have no municipal regulations, 
 except in the District of Columbia. — The acquiescence of 
 Great Britain under Jay’s treaty from 1793 to 1804, in not 
 bringing slaves into this port, when, by that treaty, she had 
 the right, is conclusive, that she did not think a treaty para- 
 mount to a local state law. 
 
 I will how transcribe some passages from Vattel, which 
 though they properly belong to some of my previous num- 
 bers, may, nevertheless, be useful even now. In treating of the 
 collision of laws and treaties, Vattel says, “ When laws and 
 treaties happen to be opposed to each other, the following 
 rules ought to prevail. We will not speak of the collision 
 of the law of nature ; this will, doubtless, in all cases , have 
 the advantage, and must prevail. But where there are laws 
 and treaties opposed to each other, and it is impossible to ful- 
 fil both, the following rules are to be observed : 
 
 1. In all cases where what is permitted, is found incompa- 
 tible with what is prescribed, this last has the advantage : for 
 6 
 
62 
 
 A mere permission imposes no obligation ; — to do or 
 not to do what is permitted, is left to our will ; we may 
 do it, or we may not do it, as we please. But we have not 
 the same liberty with respect to what is prescribed by law . — 
 We arc bound, or obliged to do it. 
 
 2. In the same manner the treaty which permits, ought to 
 yield to the law which forbids. For the prohibition should 
 be obeyed. 
 
 3. Every thing being otherwise equal, the law or treaty 
 which ordains, yields to the law or treaty which ybriiWs. 
 
 4. What will suffer no delay, ought to be preferred to 
 what may be done at another time; for this is a method of 
 reconciling every thing, and fulfilling both obligations. 
 
 5. When two duties are found incompatible, the most con- 
 siderable or urgent merits the preference. This rule is so 
 plain that it needs no proof : this is the grand rule in their 
 opposition as it merits most attention. — Vattel , Book 2 d. 
 chap. 17. Sec. 311 to 319. 
 
 I have now given my ideas as to the constitutionality of the 
 State Act, to the best of my abilities, and 1 trust that many 
 of my readers will be satisfied with the remarks I have sub- 
 mitted. Such as are not wholly satisfied, I must entreat, not 
 to infer from any suppossed failure on my part, that the sub- 
 ject is not susceptible of stronger and better views. But 
 above all, I entreat them not to believe, that 1 rely solely on 
 the few last positions which I have taken. The great ground 
 upon which the State Act is to be sustained is, that if the 
 treaty with Great Britain can be so construed as to give her 
 colored seamen from abroad, a right to enter this port, con- 
 trary to the will of our Legislature, such a treaty interferes 
 with the most important of all the inherent rights secured 
 and reserved to her by the Constitution of the United States, 
 and is therefore absolutely null and void. When the ques- 
 tion which involves all that is dear or valuable to this State, 
 comes to be discussed before the Supreme Tribunal of the 
 Union, by men far more competent than the writer of these 
 numbers, let us my fellow-citizens, hope and trust, that not- 
 withstanding one Judge from our State has unnecessarily 
 prejudged the question, that the decision will still be for 
 South-Carolina. 
 
63 
 
 As to Judge Johnson — if he thinks that these numbers 
 are written from jealousy of him, or from malice, or any bad 
 motive, he is exactly in the error into which he so often pre- 
 cipitates himself in his newspaper controversies. Caroli- 
 niensis is not ashamed of his motives. He regards the Judge 
 as a person who may hurt this State seriously, if he is not 
 made to feel smartly every time he assails the public. As to 
 the feelings of this writer, they are strong against him — but 
 they are the highly indignant, as he trusts they ought to be, 
 the honest feelings of every man who loves the land and the 
 laws which prdtect him. — Had Judge Johnson not injured 
 the State, Caroliniensis had never written. Had Judge 
 Johnson entered into the sensibilities of his fellow men, in 
 the time of their inquietude, and there 
 
 “ Have garner’d up his heart 
 
 Where — either he must live or bear no life, 
 
 The fountain from the which, his current runs, or else 
 dries up," 
 
 this opinion of his, probably, had not been given, and these 
 essays had not appeared. But when, against alLad vice,* he 
 will put forth a publication which serves only to encourage 
 the colored population of the north to persevere in coming 
 here, contrary to our safety, or to furnish pretexts for unprin- 
 cipled Editors to vilify the South ; when his opinions so un- 
 necessarily, nay wilfully obtruded upon the public, can only 
 be used in the other States. 
 
 . ., “ Asa cistern for foul toads, 
 
 To knot and gender in ! Turn thy completion there, 
 Patience," 
 
 and say whether this is to be submitted to without a murmur. 
 Scarcely fourteen months have elapsed since Judge Johnson, 
 by his celebrated anonymous essay “ on the effects of popu- 
 lar excitement,” held up his native State to the greatest pos- 
 sible odium. There was then a simultaneous burst of indig- 
 nation against the man, who could write such an essay , and 
 the printer, to avoid the weight of obloquy which was fast 
 accumulating upon him, gave up Judge Johnson as the au- 
 thor. — The impression that was then made never can be ef- 
 faced from our memories. Can any excuse be made for him 
 who publishes what must disgrace his own country abroad? 
 
 • Even Ei.kison’s Counsel used his influence (in vain) to dissuade 
 tha Judge from publishing his opinion 
 
64 
 
 A second time he tomes forward, and he reflects upon the 
 sountry, by his perverted views of our legislation and pro- 
 ceedings. His opinion is on the wings of the four winds, to in- 
 jure the character of the State. The poison of this com- 
 pound of oblique views, and of extra-judicial mis-statements, 
 is now swiftly coursing its way from Georgia to New-Hamp- 
 shjre, and from the Atlantic to the Missouri. 
 
 “ Such soon speeding geer 
 
 As will disperse itself through all the veins of this 
 great Confederacy.” 
 
 Every feeling which jealousy can awaken, or affected phi- 
 lanthropy inspire, will be brought to bear, or is now bearing, 
 upon the character of our Legislature. Obloquy and re- 
 proach have already been our portion abroad. The Judge 
 will have abundant proofs of this, by referring to the columns 
 of some of the Northern journals. He will there see the 
 blessed fruits of this opinion, so indiscreetly promulgated. 
 He will there find how seriously the reputation of his country 
 is affected in the view of those who triumphantly quote it. 
 
 “ Oshame! the thought consumes me, 
 
 To see a man like this. 
 
 Borne on our shoulders to his present fame.” 
 
 To see him at such a pnoment as this, step out as the vo~ 
 luntary champion against our inherent rights , nay, the rights 
 and the interests of his fellow-4ownsmen. Could I ever build 
 up a reputation for myself, that could place me upon the 
 Bench of the United States; could I but fill such a large 
 space in the eye of my fellow-citizens, clarum et venerabile 
 nomen ! could I but believe, that I had “ assiduously labored 
 to rear the pyramid of my country’s glory, or could I boast 
 of some forty winters as spent in the service of the people,” 
 next to the consciousness of having supported the dignity of 
 my station, and that I had never done an act which could 
 cause the dilapidation of mine own honors : next to these 
 would I value beyond all treasure, the confidence and the love 
 of my fellow-townsmen and countrymen. What could avail 
 all my honors, if I could not live an unstained husband to 
 my sweet country’s sympathies. 
 
 I have now done : and if Judge Johnson will hereafter 
 keep his sentiments on late occurrences to himself, and not 
 trouble the public with them, neither he nor the public shall 
 ever again hear from C AROLINIENSIS 
 

 ■* 
 
SINCE the foregoing Numbers were put to press, it has 
 been thought adviseable to add the following, as hoeing 
 ■ft very important bearing on tte subject* 
 
$$UO:=e*?0UUiro0i0t 
 
 V 
 
 wo. i. 
 
 P HILONIMUS admits, that the State Act of 1822, is 
 constitutional, so far as it affects Northern seamen, but 
 denies the same efficacy to the Act, when British seamen are 
 /■concerned. Surely, this said Philonimus , in the extension 
 of his philanthropy, must be disposed to concede to the Brit- 
 ish nation, what is expressly denied by that nation to our own 
 citizens, or the citizens of other countries. In June, 1822, the 
 Alien Bill was revived by Parliament. Sir James Mackin- 
 tosh, in opposing that Bill, objected to the power exercised 
 by Parliament, of sending foreigners out of the country ; but 
 in spite of the arguments, sarcasm and eloquence of Sir 
 James, the Bill was passed by a large majority. Mr. Plun- 
 ket, who defended the provisions of the Bill, confidently as- 
 serted, that “ the power of removing aliens from the coun- 
 try, was one, which had always existed. It was founded 
 upon the right of nations, and had been exercised by the go- 
 vernment of every nation, whether free, or despotic.” u The 
 -question, of sending an alien out of a country, was only a 
 question of right and fitness.” “ Government should always 
 have the power to remove foreigners, should they become 
 obnoxious ; the more particularly, as there were numbers of 
 foreign emissaries here, who sought to poison the public 
 mind, and to sow disaffection.” “ He would ask, were not 
 
68 
 
 the means then resorted to, necessary for the preservation of 
 the country ?” What measures could be adopted, if this 
 country were to become the resort of the pestilence of other 
 countries ? “ The object of the Alien Act was to provide, 
 that the Government of the country, if it found, that the resi- 
 dence of foreigners was dangerous to the peace and tran- 
 quillity of the country, might be empowered to remove them, 
 although they might not be charged with the commission of 
 any specific crime.” “ The prerogative of the crown, in 
 this country, and in every other, no matter whether free, or 
 not, had, he apprehended, always exercised that power.” 
 
 “ This, said Mr. Plunket, was not giving up the Consti- 
 tution, or giving up freedom — for the same Constitution that 
 had given us liberty, had given us the power of preserving 
 it. The more free our Constitution was, and the more un- 
 rivalled our privileges, so much the more necessary it was, 
 tp guard and protect both.” 
 
 By these numerous extracts, we are taught the senti- 
 ments of the British government on this subject, and can 
 it be true, that this very government would take offence, 
 at our acting upon principles, here broadly laid down by 
 their own ministers, or may it not happen, that the proud 
 and haughty government of the “ far-famed Isles,” may 
 deny to the American States, what it is so resolved to ar- 
 rogate to itself. It appears, that on the debate before the 
 House of Commons, Sir James Mackintosh had used ar- 
 guments drawn from extreme cases, similar to those used 
 by Judge Johnson, when he refers to Lascars and Nan- 
 tucket Indians. This, says Mr. Plunket, “ is another mis- 
 take, into which the gentleman has fallen — he has stated 
 imaginable mischief, which might arise from extreme cases, ' 
 and has argued upon those imaginable mischiefs, as though 
 they had been the end and object of the Act.” It occurs to 
 me as extremely improbable, that the British Ministry should 
 even make a formal representation to the United States Go- 
 vernment on this subject. Elevated as that nation conceives 
 itself above all the powers of the earth, it scarcely can con- 
 ceive us so poor, so spiritless, as to submit to be chided, fa r 
 acting upon the very principles they so openly proclaim. 
 
vT\ - ' 
 
 69 
 
 no. a. 
 
 To My first number, it may be replied, there is no doubt, 
 the Parliament of Great Britain, or the Congress of the Unit- 
 ed States, have a right to pass an Alien Bill, but the same 
 power is not vested in our State Legislature — to this I an- 
 swer : — That in the year 1800, our Legislature passed a 
 Bill, prohibiting masters of vessels from bringing into this 
 State, any free persons of color. In 1803, our ports were 
 opened to the importation of slaves, but the provisions of the 
 Act of 1 800, so far as respects free colored persons, were 
 rendered perpetual ; the reasons for which, are familiar to 
 every one acquainted with the history of those times. St. 
 Domingo was in possession of the negroes, and of course 
 those negroes were free. Some of them had gone over to 
 France for education, and were disposed to claim the same 
 privileges as the European whites— to mingle in our com- 
 merce, navigate vessels, and settle among the people of these 
 States for the purposes of trade ; one of the principal chiefs, 
 had some years previously, visited this very State, on his 
 return from France — and a few years afterwards, a vessel, 
 officered and manned by black people, arrived at Hartford, 
 in the State of Connecticut. Among the officers, was Boyeb, 
 now President of Hayti, a smart, sagacious, and intelligent 
 fellow, well skilled to devise any scheme, or perpetrate any 
 mischief. The Southern members in Congress, aware of our 
 danger, from the introduction of this class of persons, suc- 
 ceeded in procuring the passage of the following Law, by the 
 United States Legislature : — 
 
 The Act is entitled, “ an Act to prevent the importations 
 of certain persons, into certain States, when, by the Laws 
 thereof, their admission is prohibited and passed Februa- 
 ry, 1813. 
 
 Section 1 . “Be it enacted, by the Senate and House of 
 Representatives of the United States of America, in Congress 
 assembled, That from, and after the first day of April next, 
 no master, or captain ol any ship, or vessel, or any other 
 
70 
 
 person, shall import, or bring, or cause to be imported, err 
 brought, any negro, mulatto, or other person of color, not be- 
 ing a native, a citizen, or registered seaman of the United 
 States, or seamen, natives of countries beyond the Cape of 
 Good Hope, into any port, or place, of the United States, 
 which port, or place, shall be situated in any State, which by 
 Law has prohibited, or shall prohibit, the admission or im- 
 portation of such negro, mulatto, or other person of co- 
 lor; and, if any captain, or master, aforesaid, or any other 
 person, shall import, or bring, or cause to be imported, or 
 brought into any of the ports, or places, aforesaid, any of the 
 persons, whose admission or importation is prohibited, as 
 aforesaid, he shall forfeit and pay, the sum of one thousand 
 dollars, for each and every negro, mulatto, or other person of 
 color, aforesaid, brought, or imported, as aforesaid : to be 
 sued for, and recovered by action of debt, in any Court of the 
 United States, provided always , that nothing contained in 
 this Act, shall be construed to prohibit the admission of In. 
 dians.” — 3d vol. Laws of the U. States, 529. 
 
 By this Act of Congress, all State Laws, which shall pro- 
 hibit the bringing of colored persons into the State, except 
 natives, citizens, or registered seamen of the United States, 
 or seamen, natives of countries beyond the Cape of Good 
 y* Hope, or Indians, are made Laws of the United States. — 
 When, therefore, the Treaty of Commerce, between this 
 country and Great Britain, subjects all the provisions of that 
 treaty, to the Laws and Statutes of the two countries, it sub- 
 jects it to the State Law ; because the State Law is made a 
 Law of the United States ; so that the States may pass Alien 
 Bills, so far as colored aliens are the subjects of those Bills. 
 It will also be perceived, that Elkison has no right to come 
 into this State, by virtue of the Treaty, for Elkison being a 
 British seaman, and British seamen not coming under the 
 exceptions in the Act of Congress, he is of course excluded 
 by that Act, which applies to European and West-India co- 
 lored seamen, as not being natives of countries beyond the 
 Cape of Good Hope. It will also be perceived, that this Act 
 could not have intended to apply to slaves, for two reasons. 
 1st. It excepts natives, citizens, and registered seamen of the 
 United States, natives of countries beyond the Cape of Good 
 Hope, and these are never slaves. 2d. Because all the Slave 
 
 / tr & j t- . 
 
 / 
 
71 
 
 Acts, speak of persons brought into the States for sale, and 
 this Act makes no mention of such. How then can it be 
 pretended, that this State has no right to prohibit the bring- 
 ing in persons of color from foreign countries ? How can 
 men dare to assert, that the constitutionality of our Law of 
 1822, cannot bear an argument ? Who is so rash, as not to 
 pause, before he advocates doctrines subversive of the rights 
 of the State, and destructive of the property and lives of 
 us all. 
 
 HO. 3. 
 
 Philonimus has conceded, that the Act of Congress, pass- 
 ed in 1803, does sanction, not only existing, but future laws 
 of the State, excluding colored seamen of the description of 
 Elkison; but denies, that the State Act of 1822, is consti- 
 tutional, inasmuch, as being passed subsequent to the treaty, 
 it of course must yield to the treaty. 
 
 It will be recollected, that the words of the treaty are — 
 u That the liberty of ingress, for the purpose of commerce, 
 shall be subject always , to the Laws and Statutes of the two 
 countries respectively” — now, that these words relate to fu- 
 ture, as well as to Laws existing at the time of the treaty, 
 Philonimus himself admits, for in one of the numbers, in an- 
 swer to “ Caroliniensis,” we find the following expressions : 
 u What doubt can be entertained, that the contracting par- 
 ties to the Commercial Convention, have retained the right, 
 to pass what Navigation Laws they please. The only obli- 
 gation they have laid themselves under, is, to extend to each 
 other all the advantages of the most favored nation.” — Thus 
 it is fully conceded, that the United States, as one of the con- 
 tracting parties, could pass any navigation laws subsequent 
 to the treaty without any violation of the treaty ; but through- 
 out the whole of Judge Johnson’s opinion, it is taken for 
 granted, that the regulation of seamen is a regulation of com- 
 merce and navigation ; the conclusion is, therefore, irresis- 
 tible, that the United States can regulate the admission of 
 British seamen without in the least infringing upon the trea- 
 ty. “ Does it follow from this,” says Philonimus, “ that the 
 
I 
 
 72 
 
 States shall have the power to pass navigation laws for the 
 two contracting parties ? to impose upon them a rule as to 
 the seamen they shall employ.” Here we find two positions 
 are distinctly yielded, by Philonimus. 
 
 1st. That the United States can pass future navigation 
 laws, without violating the treaty. 
 
 2dly. That a law regulating seamen is a navigation law ; 
 the inference then is irresistible ; that if the State law of 
 1822, had been passed by Congress it would n|t: have in- 
 fringed upon the treaty of 1818. 
 
 Now I ask whether the Act of 1822 is not made an Act 
 of Congress by the United States law of 1803 ? and if it be 
 so, must it not be conceded, that its passage by our Legisla- 
 ture, is not a violation of the treaty of commerce between 
 Great Britain and the United States ? And that it is so Phi- 
 lonimus has already admitted, in his answer to my first and 
 second number, in which he grants that “ the Act of Con- 
 gress relied on does sanction, not only existing but future 
 laws of the State, excluding colored seamen of the descrip- 
 tion of Elkison.” 
 
 The whole of the argument may be summed up thus — 
 
 1st. The United States may pass navigation laws without ' 
 infringing the treaty! 
 
 A law regulating seamen is a navigation law. Therefore, 
 the United States can regulate seamen, without infringing 
 the treaty. 
 
 2d. The State Act of 1822, regulating seamen, is, by act 
 of Congress, made an United States law ; but seamen may 
 be regulated by an United States law, without infringing the " 
 treaty. Therefore, the State Act of 1822, is not an infringe- 
 ment of the treaty. 
 
 As truth is my aim, I have endeavoured to exclude from 
 this argument whatever was calculated to mislead myself or 
 my readers ; and unless I have misquoted from former num- 
 bers of Philonimus, my conclusion is a legitimate deduction 
 from undisputed premises. Never to go beyond the case 
 presented, is a rule which I have long endeavoured to act up- 
 on, and as the one before the public is that of a British sea- 
 men, it is unnecessary to consider the operation of the Act 
 of Congress of 1803, upon Northern seamen, it is only ne- 
 cessary to remark, that a law of Congress may confer upon 
 
73 
 
 a State a right not previously possessed, but never can di- 
 gest a State of inherent or pre-existing rights. Neither can 
 the opinion of Congress, respecting our right to exclude nor- 
 thern seamen, be gathered from the Act of 1 803 ; for the ob- 
 ject of that Act was to make it obligatory on the United 
 States revenue officers to assist the State in executing the 
 law, so far as it respects British seamen, though it might not 
 have been willing to assist in executing any laws interfering 
 with those from the north. Animated, and protracted, 
 and vexatious, have been the discussions on the constitution- 
 ality of our State law ; much has been written, which can 
 have no other interest but what is derived from the excite- 
 ment of the moment — much, that will cease to be remem- 
 bered, when the summer is ended, and the winter bra- 
 ced us up once more for active employments ; but, after all, 
 it must be confessed, that from so much collision, light has 
 been struck, and truth revealed. 
 
 PHILO-CAROLINIENSIS. 
 
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M Southerner, 
 
 A VERY important Act of Congress has been brought 
 before the public eye by Philo-Caroliniensis, which, it seems 
 had not been noticed in the discussion of Elkison’s case. 
 The new view afforded by the discovery of this Act of Con- 
 gress is to my mind, conclusive ; and I beg to call the atten- 
 tion of my fellow-citizehs particularly to it. Elkison’s claim 
 is founded, as the Judge has decided, upon our treaty with 
 Great Britain. To this claim it was (amongst other 
 grounds) objected that by the treaty itself, its provisions 
 were to be subject to the municipal laws of the States. The 
 reply of the opposite counsel was, that the laws embraced by 
 the proviso in the treaty, were not the municipal , or local 
 laws of the States, but simply the laws of Congress. The 
 Judge himself, could not then doubt, but that if Congress 
 had passed an alien bill, that the provisions in the treaty, 
 must be subject to such a bill. At this moment, notwith- 
 standing this treaty gives to every American the right of go- 
 ing to and of residing in Great Britain for the purposes of 
 commerce, the government there under their act of Parlia- 
 ment of last year, can order off any of our citizens without 
 any trial, and forbid their return under pain of death or 
 transportation to the South Seas. In doing this Judge 
 Johnson could not pretend to say, that England violates 
 the treaty, because the treaty itself is made subject to the 
 laws and statutes of the two countries. Upon the same 
 principle, if the United States should interdict the negroes 
 or mulattoes of the British territories from coming into our 
 ports, our engagements would not thereby be violated. In 
 both instances, both countries would act precisely on the 
 same principle of exclusion, all such cases falling within the 
 clear intent and meaning of the proviso in the treaty. 
 
The Judge himself, was so certain that there was no Act 
 of Congress which could possibly bear upon Elkison, that 
 he uses these words : “ Now, according to the laws and trea- 
 ties of the United States, it was both lawful for this seaman 
 to come into this port in this vessel and for the captain to 
 bring him in the capacity of a seaman.” But his Honor 
 was greatly in error, for there was a law of the United States 
 which prohibited Elkison from coming in any capacity 
 whatever. 
 
 In February 1803 an Act of Congress was passed, the 
 first section of which is in these words : “From and after 
 the first day of April next, no master of any ship or vessel, 
 shall import or bring any negro, mulatto or other person of 
 color (not being a native , a citizen, or registered seaman of 
 the United States, or seamen natives of countries beyond the 
 Cape of Good-Hope) into any port or place of the United 
 States, which port or place shall be situated, in any State, 
 w hich by law has prohibited, or shall prohibit, the admis- 
 sion of such negro, mulatto or person of color,” &c. Thus 
 stands the act of Congress, the obvious design of which is 
 to give effect to the State Laws on the subject. Is there then 
 any law of this State which at present prohibits colored sea- 
 men from coming into its limits? The answer is given by 
 Judge Johnson himself in his opinion. All his reasoning, 
 nay his whole opinion, is built upon his declaration, that 
 the State Act is a prohibition to all intents and purposes . — 
 His words are “ that it amounts to the assertion of the power 
 to exclude the seamen of the territories of Great Britain, 
 or any other nation whatsoever.” Again, “ in its present 
 form it amounts to an actual exclusion .” It is again also 
 
 said for the Judge by Philonimus, that“ the Act of Congress 
 of 1803, relied on, does sanction, not only existing, but 
 future laws of the State, excluding colored seamen of the 
 description of Elkison ; the words being, has prohibited, 
 or shall prohibit ; thereby giving the State Act of 1822 
 force as to all colored seamen, not expressly exempted.” — 
 Here then we have an express acknowledgment, first by the 
 J udge in propria persona, that the State law of 1822, is a 
 prohibitory law, and then in Philonimus, that this Act is 
 sanctioned or recognised by Congress. 
 
76 
 
 The'Statc Act of 1 822 beingthus recognised, and made the 
 Act of Congress, and Elkison not being one of the persons 
 excepted in the Act of 1803, (the exception therein contain- 
 ed, relating only to Northern seamen, and seamen beyond 
 the Cape of Good Hope) let us now see how the Judge and 
 P/nlotiimus are to get over the difficulties into which such 
 an acknowledgment involves them. Philonimus gravely 
 tells us, that the treaty was made before the State law. His 
 words are, “ still, however, even in Elkison’s case, and that 
 of British seamen generally, the question under the treaty 
 remains. The ground was unoccupied by the State law at 
 the time of the British treaty of 1818. It was occupied by 
 that treaty, when the State law was passed, and a spirit of 
 moderation would point out the propriety of abstaining from 
 the practical application of our construction of the proviso 
 fin the treaty) until the two governments can come to an un- 
 derstanding upon it.” The reasoning then, of Philonimus 
 is neither more nor less than this — The treaty is only to be 
 subject to such laws of the two countries, as existed at the 
 time of its date or ratification. But this is a subterfuge un- 
 worthy to be resorted to by a man pretending to law know- 
 lege. What are the words of the proviso ? They are, that 
 liberty of ingress, for the purposes of commerce, “ shall be 
 subject always to the laws and statutes of the two countries 
 respectively” What is the obvious meaning of the word 
 “ always ?” At that time is it, or at all times ? The 
 meaning is clear and indubitable. It. is to be constantly or 
 perpetually, that is, during the continuance of the treaty, 
 subject to the laws of the two countries. Whatever question 
 might arise under the treaty, its provisions at the time of 
 such question occurring, must be subject to the existing laws 
 of the two contracting parties. But had the word “ always” 
 been omitted, such would be the fair and liberal construction. 
 Could Great Britain pretend to contend for a contrary inter- 
 pretation ? If she did, what would become of her alien 
 law that she passed last year, since this treaty was signed. 
 Could she complain of an act of our Legislature, sanctioned 
 and made the law of the United States, which is in nature of 
 an alien act, when she herself had enacted one, infinitely 
 more severe and penal. Which, I ask, is the most penal? 
 Cor a white bona fide citizen of the United States, to incur 
 
77 
 
 die penalty of death or transportation as a convict for 7 or 
 14 years, to the South Seas, if he dares to return to England, 
 after being once warned to depart the kingdom ; or, for a 
 mulatto seaman, to be sold under our act; If the captain 
 refuses to take him away, or he himself does not quit the 
 State, after regular notice to that effect. But the in- 
 consistency of Philonimus is glaringly displayed in his 
 answer to Philo-Caroliniensis. It now suits his purpose 
 to say, that the laws which existed at the time of the trea- 
 ty, are the only laws embraced in the proviso. But he 
 did not hesitate to say the reverse of this in his other num- 
 bers. By his number 9, in his answer to that part of Caro- 
 liniensis, in which C. maintains, that the rights of navigation 
 by the treaty, could not give to one party, the right so to 
 navigate his vessels, as to make it inconvenient or dangerous 
 to the other, Philonimus expressly answers in these words : — 
 “ What doubt can be entertained, that the contracting 
 parties to the commercial convention, have retained the 
 right to pass what navigation laws they please. The only 
 obligation, they have laid themselves under, is to extend to 
 each other, all the advantages of the most favored nation. 
 Does it follow from this, that the States shall have power to 
 pass navigation laws for them both ? To impose upon them 
 a rule as to the Seamen they shall employ ?” 
 
 Is not this, I ask, an indubitable concession, that though 
 the States could not pass navigation laws, or impose upon 
 Great Britain a rule as to the seamen she should employ ; yet, 
 that either of the contracting parties to the treaty could do 
 so as to the other. Does not Philonimus say, totidem ver- 
 bis, that both parties retain the right to pass what naviga- 
 tion laws they please ; and does not Judge Johnson regard 
 the regulation of seamen as incident to navigation and com- 
 merce. Have not the United States exercised the right of 
 imposing upon Great Britain, a rule that she is not to bring 
 her colored seamen into our Southern ports ? Has it not 
 been exercised in the State Act of 1822, which A.ct Philo- 
 nimus acknowledges to be the law of the United States a- 
 gamst all colored persons who do not fall within the excep- 
 tions under the law of the United States. And does he re- 
 gard Elhison as an exception upon any other ground, than 
 that the treaty happened to be made before the State Apt 
 
78 
 
 was passed, which ground I have shewn from. his own word* 
 fails from under him. 
 
 All this has Philonimus conceded. But let us not forget, 
 that this concession was made, when he and the Judge were 
 ignorant of the Act of Congress of 1803. Had Philonimus 
 then known that the State law of 1822, was at the moment 
 of his writing the above passages, the law of the United 
 States pro tanto. he, probably, would not have made this 
 confession. Now, which of Philonimus’s assertions shall 
 we take? His^rsf position, that both parties notwithstand- 
 ing the treaty, retained the right to pass what navigation 
 laws they pleased, without infringing its stipulations; or his 
 present assertion, that the treaty is to be subject to no laws 
 but those which existed at its date. Shall we infer with him 
 in his No. 9, that the right of ingress given by the treaty, 
 does not hinder the United States from imposing what rule 
 they please as to the seamen which England shall not bring 
 into our ports ; or shall we now take his present counsel, to 
 abstain from the practical application of our construction of 
 the proviso until the two governments can come to an un- 
 derstanding upon it ? Men who write much, ought to have 
 very long memories. 
 
 But some persons have said, that this Act of Congress of 
 1803, is a two edged sword — It cuts both ways. If it 
 interdicts the admission of Elkison, it, at the same time 
 admits Northern negroes into our ports, and the admission of 
 these last is the greater evil of the two. The answer is this : 
 Congress does not by the Act in question, confer on the na- 
 tive and registered soamen of the United States, a positive 
 right or privilege to come into our ports against our will, 
 nor can any such right fairly be implied. Philonimus it 
 may be seen has taken up this idea, from the questions which 
 he puts. “ Why, says he, was the Act of Congress necessa- 
 ry, if the State possessed the power without it? or how 
 could the United States discriminate if the State power was 
 unlimited?’’ I will answer: The Act of Congress bears 
 
 no such construction. Congress would not attempt to pass 
 any such Act. The design of the Act was simply, to aid 
 the States in doing that which Congress approved of. The 
 power of Congress to pass a law concurrent with a State 
 authority, may be undisputed, but it does not follow that the 
 
79 
 
 same body could pass an Act to have a contrary operation. — 
 This State, for instance, can prohibit slaves from being im- 
 ported from Africa, and may pass an Act with severe penal- 
 ties on the subject. So can Congress prohibit the importa- 
 tion, in any way and by any penalties it pleases. Congress 
 has done so in fact. But yet Congress would not have the 
 power to permit the introduction of slaves, jf we should 
 choose to shut our ports. So it is, with the two Acts in 
 question. The State, at a time, when she alone had the 
 power to shut or open her ports, chooses that no free negroes 
 or slaves shall be brought within its limits. Congress ap- 
 proving of such a determination, and knowing that if offen- 
 ders should escape detection from the State authorities, yet 
 they probably might not elude the authority or vigilance of 
 the revenue officers of the United States, also in 1803, passes 
 its law. The design is to aid the State in enforcing its acts. 
 But as the laws of some of the States might exclude all per- 
 sons of color indiscriminately, (as does the State of South- 
 Carolina) whether natives of the Northern States or not, it 
 was very natural for Congress in its act to discriminate. It 
 was simply and plainly using towards our own particular 
 State this language. “ We approve of the general object of 
 your laws, and as we are interested as well as yourselves in 
 limiting the evil of slavery, and of a free colored population, 
 we will go hand in hand with you ; but there are some parts 
 of your excluding act which we cannot approve of, and 
 these parts we cannot introduce into our act, to be passed 
 on the same subject. We are willing to impose heavy 
 penalties upon captains of vessels for bringing into your 
 ports slaves, or some of the free persons of color whom you 
 Would exclude as dangerous to yourselves ; but as to the 
 native or registered seamen of the Northern States, we can- 
 not think of giving you our aid in the exclusion of these. 
 It would not become us, who represent the interest and 
 feelings of the Nothern, as well as the Southern sections of 
 the Union, to pass or recognize any such an act, nor could 
 we include seamen beyond the Gape of Good Hope. As to 
 all others, free negroes or persons of color, British, French, 
 or otherwise, from the West Indies or elsewhere, we will aid 
 you to the utmost of our power, by imposing a penalty upon 
 the captain, or by a seizure of the vessel. But as to the 
 
80 
 
 Northern seamen, whom we wish to except in our act, wfi 
 shall not use United States authority as against these.” How 
 easy it is to explain what at first seems to he attended with 
 difficulty. Is it not perceived that the Act of Congress gives 
 no right to Northern seamen to come here, but, merely re- 
 fuses to recognize or lend its aid to enforce that part of the 
 State law which would exclude them. The act is nothing 
 more than an act of courtesy, voluntarily tendered by the 
 General Government, to such States as they thought might 
 need the vigilance of the United States, vessels and civil offi- 
 cers, to give greater effect to their laws on this subject. As 
 to the Lascars and Judge Johnson’s fine Nantucket seamen,* 
 who of course are included in the exception to the Act of 
 Congress, these, never were subject to any of our laws- 
 against persons of color. 
 
 That part of Judge Johnson’s opinion in which he extra- 
 judicially considers an East-Indian or Nantucket Indian, or 
 a free Moor, as a person of color, within the meaning of our 
 act against persons of color, is palpably erroneous. Both 
 principle and practice are opposed to it. A few days ago, a 
 man of color who arrived from New-York in the Franklin , 
 was taken into custody. He no sooner produced an official 
 certificate from our Court, that he was born of a free Indian 
 woman, than he was instantly discharged by the deputy 
 sheriff. How delightful it must be to every friend of South- 
 Carolina, to find that the more this subject is discussed, the 
 higher is the ground upon which our rights are to be placed. 
 The whole ear of the United States, has it is true, been most 
 rankly abused. But let us not despair. Our brethren at 
 the North, when they come to see the whole ground occu- 
 
 E ied by us, will not be disposed to blame us for what we 
 ave done. 
 
 *Tbe Nantucket Indian Seamen, whom the Judge in his opinion 
 calls the finest in our service, are not to be found. The Nantucket 
 Editor tells us that there is only one Indian in the Island of Nantucket, 
 containing 8000 souls. 
 
 CHARLESTON:— PRINTED BY A. E. MILLER.