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Elkison v. Deliesseline: The South Carolina Negro Seaman Act of 1822 in Federal Court

In August 1823, the British vessel Homer arrived in Charleston, South Carolina, after sailing from Liverpool, England. Several days after the ship docked, Charleston sheriff Francis G. Deliesseline boarded, placed crew member Henry Elkison (a Jamaican-born British subject) in chains, and led him off the ship to be jailed. The offense for which Elkison was arrested was nothing more than being a black man who arrived at the port of Charleston as part of a ship’s crew. In accordance with the Negro Seaman Act, passed by South Carolina’s legislature in December 1822, Elkison was to be incarcerated until the Homer was ready to leave port. At that point, the ship’s captain could end his captivity and bring him back on board by paying the costs of his detention. If the captain failed to do so, however, Elkison would be sold into slavery and Deliesseline would be entitled to a portion of the proceeds.

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The case that resulted from the arrest, Elkison v. Deliesseline, presented a federal court with the question of whether a state could summarily incarcerate and enslave a free subject of a foreign government. Despite the importance of the case to the man whose liberty was at stake, considerations of human rights took a back seat to other issues. The clash between the federal government and the state of South Carolina sparked debates about federalism presaging those leading up to the Civil War. Foreign relations were additionally at stake, as the incident threatened the nation’s relationship with Great Britain, a peace less than a decade old. Elkison further involved the federal judiciary’s first interpretation of the federal government’s power to regulate foreign and interstate commerce in relation to the states.

At the center of Elkison was the controversial Negro Seaman Act. In addition to its inhumanity, the Act had the strong potential to damage Charleston’s standing as one of the busiest and wealthiest port cities in the United States. Ship owners from the North and abroad might be reluctant to send their vessels to Charleston if those ships had any “free negros or persons of color” (as the statute put it) among their crew. Nevertheless, the state legislature was motivated to pass the Act by an event of the previous year: a slave revolt that never happened. Denmark Vesey, who was formerly enslaved but had purchased his freedom, allegedly hatched the plot early in 1822, convincing several local enslaved people to kill their enslavers and take over the city of Charleston. One reported the planned uprising, foiling the plot and resulting in the arrests of Vesey and his alleged co-conspirators.

Vesey and the other suspects were tried by a special court convened pursuant to the South Carolina slave code of 1740. Sixty-nine people were found guilty, thirty-five of whom, including Vesey, were hanged. Although the insurrection plot (if it truly existed) never came to fruition, Charlestonian slaveholders were terrified at what could have been and the possibility that they might not be so lucky the next time. The rapid increase in the enslaved population, which made African Americans an ever-growing local majority, further fueled the fears of Charleston whites.

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The legislature enacted the Negro Seaman Act on the premise that free black men, if permitted to intermingle with the enslaved, would act as a “contagion,” spreading dangerous ideas that might encourage rebellion. Its proponents envisioned the statute as imposing a “quarantine” to prevent this outcome. Vesey, a free man who had traversed much of the Atlantic world as a sailor, was held up as a prime example of one who, if allowed to roam free in Charleston, could contaminate the minds of those in bondage. Not all Charlestonians embraced the contagion theory. The merchant class realized that any restriction on sailors entering the port would be likely to harm commercial interests. Fear carried the day, however, and the Negro Seaman Act passed along with other bills aiming to keep free people of color out of South Carolina.

The Act was just over seven months old when Elkison was arrested, after which the captain of the Homer hired a Mr. King (most likely prominent Charleston lawyer Mitchell King) to represent him. King immediately petitioned the U.S. Circuit Court for the District of South Carolina for a writ of habeas corpus or, failing that, a writ de homine replegiando (a civil writ releasing a prisoner into the hands of a private person by giving security to the sheriff that the prisoner will appear to answer any charges brought against them). The case came before Justice William Johnson of the Supreme Court, a native of South Carolina, who was riding circuit. Johnson, though a slaveholder himself, had elicited resentment from other Charleston slaveholders during the Vesey affair. As the trials were beginning, a local newspaper published an unsigned essay, soon learned to have been written by Johnson, that avoided referring directly to Vesey but strongly implied that fears of an insurrection were overblown. The essay and an explanatory pamphlet Johnson published afterwards led to a public war of words between the justice and the offended judges of the Vesey court.

When Elkison came before Johnson, the justice already had some experience with the Negro Seaman Act, a law he felt had “been passed hastily, and without due consideration.” Earlier in 1823, forty-one American captains whose sailors had been seized under the Act petitioned Congress for relief. Emphasizing that the jailed sailors were American citizens, the captains asserted that the Act “destroy[s] the liberty of freemen” and “not only deprives us of the services of our colored mariners, but subjects our vessels to a considerable expense.” The situation was resolved when Johnson asked South Carolina U.S. attorney John Gadsden to intervene with state authorities and the men were released.

At the same time, however, South Carolina’s enforcement of the Act was causing tensions with Great Britain. In January 1823, local authorities boarded a British ship when the ship’s master was not present. The first mate was a free man of color, while the other four crewmen were enslaved. The latter four claimed to be free British subjects in the erroneous belief that they would be treated more favorably. Instead, all five men were jailed. Despite his protests, the ship’s master was forced to pay to retrieve all five crew members from custody pursuant to the Negro Seaman Act.

Although the ship’s master eventually received relief from the Supreme Court of South Carolina, which ruled definitively that the Act applied only to free men, British officials were incensed by the state’s incursion of a ship flying the British flag. In February, Stratford Canning, the British minster in Washington, D.C., wrote an angry note to Secretary of State John Quincy Adams, describing the incident as “a reprehensible act of authority” and asking Adams’s help “to prevent the recurrence of any such outrage in the future.” Adams replied to Canning in July, assuring him that “measures were taken by the Government of the United States for effecting the removal of the cause of complaint” and that there would be no recurrence of the problem.

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After Canning’s protest, there was a lull in enforcement of the Act, as South Carolina officials seemed wary of provoking further controversy. As Johnson remarked in his Elkison opinion, the state had shown “every disposition to let it sleep.” In July, however, a group of powerful Charlestonians formed the South Carolina Association to press for stricter enforcement of laws intended to exclude free people of color from the state. Pressure from the association led to Elkison’s arrest in early August. Reflecting the state’s lack of enthusiasm for pursuing the case, the South Carolina attorney general did not appear in the circuit court to defend the Negro Seaman Act. Instead, the case was presented by prominent Charleston lawyers Isaac E. Holmes and Benjamin F. Hunt. Holmes, a member of the city council who later served as a state and then U.S. representative, was the solicitor of the association. Hunt, a colonel in the state militia, was then a member of the South Carolina legislature.

When Elkison was jailed, the British consul in Charleston, Benjamin Moodie, presented to Johnson the letter Adams had written to Canning, considering the letter to be a pledge from the United States government that Johnson was bound to respect. Johnson stated that he could not act upon the letter, however, writing in his opinion, “it is not legally sufficient to regulate my conduct, or vest in me any judicial powers.”

In arguing the case, Hunt asserted that South Carolina, as a sovereign state, had an absolute right to exercise its police powers in its own defense and that these powers included the exclusion of a certain class of people from the state or the placing of restrictions on those who entered. Reflecting the fear that had motivated the Seaman Act, Hunt declared, “If South Carolina has to dread the moral pestilence which a free intercourse with foreign negros will produce she has, by the primary law of nature, a right within her own limits to use every means to interdict it—she is not bound to wait until her citizens behold their habitations in flames and are driven to seek refuge by the glare of the conflagration.” Holmes was even more vehement: according to Johnson, he insisted that he would rather see the Union dissolved than have South Carolina surrender its rights to the federal government. King argued on Elkison’s behalf for the statute’s invalidity on the grounds that it violated the Constitution’s Commerce Clause and contravened an 1815 commercial treaty with Great Britain guaranteeing freedom of navigation to each nation’s ships.

Johnson began his opinion by assessing the constitutionality of the Negro Seaman Act, explaining that he would address afterward the question of whether a proper remedy existed. The justice considered it beyond debate that the Act violated the Commerce Clause. The statute intruded so severely on the powers of Congress, he asserted, that it “implies a direct attack on the sovereignty of the United States.” If South Carolina had the power to jail a British seaman of African descent, he reasoned, it would necessarily follow that it could do the same to seamen of any race, from any country, including the United States. If the state exercised this power broadly, he concluded, “retaliation would follow; and the commerce of this city, feeble and sickly, comparatively, as it already is, might be fatally injured … or the United States involved in war and confusion.” For Johnson, this hypothetical illustrated clearly that the power South Carolina asserted was totally incompatible with the power of Congress to regulate commerce among the states and with foreign nations. In the case before him, South Carolina’s policy had created a direct conflict with federal law. Under the law of the United States, Elkison had the right to enter the port of Charleston aboard the Homer, but the state had converted this right into a crime.

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Even if the Act were not void on constitutional grounds, Johnson ruled, it directly contravened the terms of the 1815 commercial treaty with Great Britain, which expressly guaranteed “reciprocal liberty of commerce.” Treaties, like the Constitution, represented the supreme law of the land, which South Carolina could not contradict. Even the federal government could not have passed a law such as the Negro Seaman Act “without furnishing a just cause of war,” wrote Johnson. Although the point did not bear directly on his ruling, Johnson could not resist observing that the Act was bad policy because its enforcement would be likely to defeat its purpose. If the state’s aim was to prevent interaction between free black men and the enslaved, he noted, condemning the former to slavery could only undermine that goal.

Despite his certainty that Elkison had been detained pursuant to an unconstitutional law, Johnson concluded that he lacked the power to issue an appropriate remedy. The Judiciary Act of 1789 limited federal courts to issuing writs of habeas corpus to prisoners held under the authority of the United States. Elkison was held under the authority of the state of South Carolina. As to the writ de homine replegiando, Johnson doubted his ability to issue the writ against the sheriff, presumably on the grounds that it would in effect be issued against the state in violation of the Eleventh Amendment’s grant of sovereign immunity. He hypothesized that the writ could issue against a purchaser if Elkison were sold into slavery. As a result, Elkison remained in jail. Fortunately for him, the captain of the Homer paid for his release before the ship left port.

Though it did not change the status quo, Johnson’s opinion was not well received in Charleston. The local newspapers refused to publish it, so Johnson had it printed as a pamphlet. Johnson wrote one letter to a newspaper under his own name, defending his opinion in response to Holmes’s denial that he made the remark about dissolution of the Union that Johnson had attributed to him. Johnson insisted this portion of his opinion was accurate. “Everyone saw me lay down my pen, raise my eyes from my notes, and fix them on the speaker’s face. He still proceeded, and in a style which bore evidence of preparation and study.” After this letter was published, Johnson used the pen name Philonimus to engage in a protracted duel by printed word with critics writing under the name Caroliniensis.

Perhaps predictably, South Carolina officials ignored Johnson’s ruling on the Negro Seaman Act’s unconstitutionality (which Johnson’s critics argued was mere dicta because of his inability to impose a remedy) and continued to enforce the statute. In this way, the Elkison case foreshadowed the crisis precipitated by South Carolina’s nullification of the Tariff of 1832. In contrast to Elkison, South Carolina’s actions this time prompted congressional action: granting federal courts limited power to issue the writ of habeas corpus to prisoners held under state authority. To protect federal revenue officers attempting to enforce the tariff from arrest in South Carolina, the Force Bill of 1833 provided for the writ when state authorities held a prisoner for an act done pursuant to federal law.

The South Carolina legislature repealed the enslavement provision of the Negro Seaman Act at the end of 1823, reenacted it in 1835 in response to newly heightened fears of slave rebellion, and repealed it once more in 1856. After Elkison, British officials continued to press Adams, whose efforts to persuade state authorities to stop enforcing the statute were met with hostility. An 1824 opinion issued by U.S. Attorney General William Wirt asserting the law’s unconstitutionality did nothing to help the situation. The next two attorneys general, John Berrien and Roger Taney, the future chief justice of the Supreme Court, issued opinions stating that the law was constitutional. By 1861, seaman statutes similar to South Carolina’s had been enacted in Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, and Texas. The validity of these laws was settled only by the Civil War.

One legacy of Elkison was that it represented the federal judiciary’s first interpretation of the Commerce Clause as a restriction on state legislative power. Johnson recognized that the Constitution did not expressly prohibit the states from regulating foreign commerce but believed that such a prohibition was unnecessary because “the words of the grant [to Congress] sweep away the whole subject, and leave nothing for the states to act upon.” Today, the Commerce Clause may seem an odd choice when looking for a constitutional provision to apply to a state’s summary incarceration of a foreign sailor. The Fifth Amendment’s prohibition against depriving any person of liberty without due process of law applied only to the federal government. Johnson therefore was unable to rely upon it. Had the case been heard after 1868, it seems likely that Johnson would have turned to the Due Process Clause of the Fourteenth Amendment, which imposed the same restriction on the states.

In 1824, a year after Elkison, the Marshall Court issued its decision in Gibbons v. Ogden, its first foray into Commerce Clause jurisprudence. There, the Court struck down a New York state law as interfering with congressional regulation of interstate commerce, in this case the navigation of steamboats. In a concurring opinion, Johnson went further, arguing that the states had surrendered to the federal government all power over interstate and foreign commerce, making congressional power in this field exclusive. Echoing his opinion in Elkison, he wrote that the power “can reside but in one potentate, and hence the grant of this power carries with it the whole subject, leaving nothing for the State to act upon.” While the Supreme Court did not adopt Johnson’s view regarding exclusivity, half a century later it took a significant step toward his broader vision of the commerce power. Invoking what scholars have termed the dormant Commerce Clause, the Court in the 1870s began to strike down state regulations interfering with interstate commerce, even if those regulations did not conflict directly with federal law.

Jake Kobrick, Associate Historian
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Related FJC Resources:
See the biography of Justice William Johnson in the Biographical Directory of Article III Federal Judges, 1789–present.

Read an essay on the jurisdiction of the federal courts in habeas corpus cases.

Further Reading:
Mann, Howard W. “The Marshall Court: Nationalization of Private Rights and Personal Liberty from the Authority of the Commerce Clause.” Indiana Law Journal 38, no. 2 (Winter 1963): 117–239.

Rich, William J. “Lessons of Charleston Harbor: The Rise, Fall and Revival of Pro-Slavery Federalism.” McGeorge Law Review 36, no. 3 (2005): 569–626.

Schoeppner, Michael. Moral Contagion: Black Atlantic Sailors, Citizenship, and Diplomacy in Antebellum America. Cambridge: Cambridge University Press, 2019.

_________________. “Peculiar Quarantines: The Seaman Acts and Regulatory Authority in the Antebellum South.” Law & History Review 31, no. 3 (August 2013): 559–586.

_________________. “Status Across Borders: Roger Taney, Black British Subjects, and a Diplomatic Antecedent to the Dred Scott Decision.” The Journal of American History 100, no. 1 (June 2013): 46–67.

Schroeder, Oliver, Jr. “Life and Judicial Work of Justice William Johnson, Jr., Part II.” University of Pennsylvania Law Review 95, no. 3 (February 1947): 344–386.

Stucky, Scott Wallace. “Elkison v. Deliesseline: Race and the Constitution in South Carolina.” North Carolina Central Law Journal 14, no. 2 (Spring 1984): 361–405.


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