The Journal of Negro History.

by Various.

Volume IV

1919

PRIMITIVE LAW AND THE NEGRO

The psychology of large bodies of men is a surprisingly difficult topic and it is often true that we are inclined to seek the explanation of phenomena in too recent a period of human development.

The truth seems to be that ideas prevail longer than customs, habits of dress or the ordinary economic processes of the community, and the ideas are the controlling factors. The att.i.tude of the white man in this country toward the Negro is the fact perhaps of most consequence in the Negro problem. Why is it that still there lingers a certain unwillingness, one can hardly say more, in the minds of the best people to accept literally the platform of the Civil War? Why were the East St. Louis riots possible? I am afraid that a good many of the Negro race feel that there is a distinct personal prejudice or antipathy which can be reached or ought to be reached by logic, by reason, by an appeal to the principles of Christianity and of democracy. For myself I have always felt that if the premises of Christianity were valid at all, they placed the Negro upon precisely the same plane as the white man; that if the premises of democracy were true for the white man, they were true for the black. There should be no artificial distinction created by law, and what is much more to the purpose, by custom simply because the one man has a skin different in hue than the other. Nor should the law, once having been made equal, be nullified by a lack of observance on the part of the whites nor be abrogated by tacit agreements or by further legislation subtly worded so as to avoid const.i.tutional requirements. Each man and woman should be tested by his qualities and achievements and valued for what he is. I am sure no Negro asks for more, and yet I am afraid it is true, as many have complained, that in considerable sections of this country he receives far less.

I have long believed that we are concerned in this case with no reasoned choice and with no explainable act, but with an unconscious impulse, a subconscious impulse possibly, with an illogical, unreasonable but powerful and in-explainable reaction of which the white man himself is scarcely conscious and yet which he feels to be stronger than all the impulses created in him by reason and logic.

What is its origin? Is there such a force? I think most will agree there is such an instinctive aversion or dislike.

I am inclined to carry it back into the beginnings of the race, back to the period of pre-historic law and to that psychological origin which antedates the records of history, in the strict sense, to that part of racial history indeed where men commonly act rather than write. The idea of prehistoric law is that obligation exists only between people of the same blood. Originally, charitable and decent conduct was expected only of people of the same family. Even though the family was by fact or fiction extended to include some hundreds or even thousands of people, the fact was still true. The law which bound a man limited his good conduct to a relatively few people. Outside the blood kin he was not bound. He must not steal from his relatives, but if he stole from another clan, his relatives deemed it virtue. If he committed murder, he should be punished within his clan, but protected, if possible, by his clan, if he murdered someone outside it. The blood kin became the definite limitation of the ideas of right and responsibility. This was true between whites. All whites were not members of any one man's blood kin.

Palpably more true was this distinction between the Negro and the white man. The Negro could not by any fiction be represented as one of the blood kin. The Romans extended the legal citizenship to cover all white men in their dominions. It was the fict.i.tious tie of the blood kin, but its plausibility was due to the fact that they were all white. I do not remember to have seen any proof that the Negro inhabitants of the Roman African colonies were considered Roman citizens. This is one of the oldest psychological lines in human history; the rights which a man must concede to another are limited by the relationship of blood. _Prima facie_ there could be no blood relationship between the Negro and the white man. There could therefore be no obligation on the white man's part to the Negro in prehistoric law. This notion has, I think, endured in many ways down to the present day as a subconscious, unconscious factor behind many very vital notions and ideas. Is it not true that international law has been, more often than not, a law between white men?

The next point I hesitate somewhat to make because it is difficult to state without over-emphasis and without saying more than one means. I think it probable that in one way or another the idea of Christianity became connected with the notion of the blood kin and in that sense limited to the blood kin of those to whom Jesus came. Everyone is familiar with the Jewish notion that Jesus was their own particular Messiah, and that the Gentiles were foreclosed claims upon him. As Christianity grew, it grew still among the white nations, and the notion of it was not, I think, extended for a good many centuries to any except white people. The premises of Christianity unquestionably included the Negro, but the notion of the blood kin excluded him, and Christianity, like other religious ideas, was limited to the people who first created it and to those who were actually or by some plausible fiction their kin in blood. The idea of the expansion of the blood kin by adoption either of an individual or of a community of individuals was very old and thoroughly well established, but I think the idea never was applied to Negroes, Indians, or Chinamen except in unfrequent cases of individuals. A volume would be required to bring forward all the available evidence regarding this idea, and another perhaps to examine and develop it, to consider and weigh the _pros_ and meet the _cons_. But it will perhaps suffice for present purposes to throw out the idea for consideration without an attempt at more considerable defense.

Another fact which has been most difficult to explain has been the continued lynchings of Negroes not merely for crimes against women, but for all sorts of other crimes, large and small. Here the traces of primitive law are very much clearer. Lynching is after all nothing more nor less than the old self-help. The original notion was that the individual should execute the law himself when he could, and that he was ent.i.tled in case of crime to a.s.sistance from the community in the execution of the law upon the offender. Murder, arson, rape and the theft of cattle were the particular crimes for which self-help by the individual and by the community in his a.s.sistance were authorized by primitive law. The preliminaries and formularies were very definite, but they do not look to us of the present day like procedure. It is true, however, that there are very few lynchings in which these formulas have not been unconsciously followed. There must be a hue and cry and pursuit along the trail. The murderer must be immediately pursued. The person against whom the crime is committed or his next of kin must raise an immediate outcry, and they and the neighbors must proceed at once in pursuit. If they caught the criminal within a reasonable distance or within a reasonable time, they then were endowed by primitive law with the right to execute justice upon him themselves. Commonly the criminal was hanged (even for theft) when caught in the act, but barbarous punishments were not uncommon. That was legal procedure, provided the cry was raised, the pursuit undertaken, and the criminal caught within a reasonable number of hours or days as the case might be. The mob had the right to execute the law, and it is not often that lynchings take place long periods after the commission of the crime. Such for many centuries was the law in Europe for whites. Self-help applied in particular to men of different tribes or communities who were not of the same blood kin.

If self-help applied under certain conditions within the blood kin as it unquestionably did, that is to say, within the law, it applied with greater force to all cla.s.ses and offenders who were outside the blood kin and were outside the law. If a stranger or an alien came within the community bounds and did not sound his horn, community law sanctioned his instant killing by anyone who met him. Men could not peaceably enter the precincts of the German tribes as late as the year 500 or 600 A.D. without being liable to instant death unless they complied with certain definite formularies. Until within five hundred years, the stranger was practically without rights in any country but his own, and might be dealt with violently by individuals or bodies of citizens. One has but to remember the tortures visited upon the Jews in all European countries with impunity to realize the truth of the doctrine of self-help when applied to strangers. There was literally no law to govern the situation. The courts did not deal with it, no penalties were provided for the restraining of individuals or of the community at large, dealing with strangers until a relatively recent time.

Is it not true that the difference in blood between the Negro and the white man has caused a survival of this notion of self-help, today illogical, unreasonable, absurd, but powerful none the less despite its technical infraction of the law of the land? Is not the lynching of a Negro or of a white man simply the old primitive self-help with the hue and cry and the execution of the victim when caught by the mob or by the sheriff's posse? There is perhaps no field of speculation so fascinating as this of the survival of bygone customs, traditions, and notions, in present society. At the same time he will be a poor and uncritical student who will not recognize the ease of erecting vast structures upon slender foundations. My purpose in this article is not to allege the necessary truth of this proposition, but, if possible, to stimulate along different lines than has been common the researches of those who are interested in the psychological att.i.tude of the white man toward the Negro.

There will be no doubt those who will exclaim that if I am right in this a.n.a.lysis of the problem--indeed, if there be any reasonable modic.u.m of truth in what I say--then the solution of the problem will be difficult in the extreme. The whole method of attack upon it will be altered. A long educational campaign will become the main feature, intended to expose the true basis of the white man's denial of real equality to the Negro race. It will look like a battle too long to be waged with courage because the victory will be far in the future. I do not agree. The attack, if properly directed, and vigorously followed up, will, like the a.s.sault of the woman suffragists upon equally ancient instinctive promptings, be unexpectedly successful. The walls of the fortress are thin and the defenders the wraiths of a dim past.

ROLAND G. USHER.

LINCOLN'S PLAN FOR COLONIZING THE EMANc.i.p.aTED NEGROES[1]

The colonization of the emanc.i.p.ated slaves had been one of the remedies for the difficulties created by the presence of freedmen in the midst of slave conditions. The American Colonization Society was founded in 1816 with the object of promoting emanc.i.p.ation by sending the freedmen to Africa. Some of the slave States, moreover, had laws compelling the freedmen to leave the State in which they had formerly resided as slaves. With an increasingly large number securing legal manumission, the problem caused by their presence became to the slaveholding group a most serious one. The Colonization Society, therefore, sought to colonize the freedmen on the west coast of Africa, thus definitely removing the problem which was of such concern to the planters in slaveholding States.

The colony of Liberia, on the west coast of Africa, was chosen as a favorable one to receive the group of freed slaves. Branches of the Colonization Society were organized in many States and a large membership was secured throughout the country. James Madison and Henry Clay were among its Presidents. Many States made grants of money and the United States Government encouraged the plan by sending to the colony slaves illegally imported. But to the year 1830 only 1,162 Negroes had been sent to Liberia. The full development of the cotton gin, the expansion of the cotton plantation and the consequent rise in the price of slaves forced many supporters of both emanc.i.p.ation and colonization to lose their former ardor.

As the antebellum period of the fifties came on these questions loomed larger in the public view. The proposition for colonizing free Negroes grew in favor as the slavery question grew more acute between the sections. Reformers favored it, public men of note urged its adoption and finally, as the forensic strife between the representatives of the two sections of the country developed in intensity, even distinguished statesmen began to propose and consider the adoption of colonization schemes.[2]

Abraham Lincoln, as early as 1852, gave a clear demonstration of his interest in colonization by quoting favorably in one of his public utterances an oft-repeated statement of Henry Clay,--"There is a moral fitness in the idea of returning to Africa her children, whose ancestors have been torn from her by the ruthless hand of fraud and violence."[3] In popular parlance, however, Lincoln is not a colonizationist. He has become not only the Great Emanc.i.p.ator but the Great Lover of the Negro and promoter of his welfare. He is thought of, popularly always, as the champion of the race's equality. A visit to some of our emanc.i.p.ation celebrations or Lincoln's birthday observances is sufficient to convince one of the prevalence of this sentiment. Yet, although Lincoln believed in the destruction of slavery, he desired the complete separation of the whites and blacks.

Throughout his political career Lincoln persisted in believing in the colonization of the Negro.[4] In the Lincoln-Douglas debates the beginning of this idea may be seen. Lincoln said: "If all earthly power were given me, I should not know what to do as to the existing inst.i.tution. My first impulse would be to free all the slaves and send them to Liberia--to their own native land. But a moment's reflection would convince me that, whatever of high hope (as I think there is) there may be in this, in the long run its sudden execution is impossible. If they were all landed there in a day, they would all perish in the next ten days; and there are not surplus shipping and surplus money enough in the world to carry them there in many times ten days. What then? Free them all and keep them among us as underlings? Is it quite certain that this betters their condition? I think that I would not hold one in slavery at any rate, yet the point is not clear enough for me to denounce people upon. What next? Free them and make them politically and socially our equals? My own feelings will not admit of this, and if mine would, we well know that those of the great ma.s.s of whites will not. Whether this feeling accords with sound judgment is not the sole judgment, if indeed it is any part of it."[5]

A few years later in a speech in Springfield, Lincoln said:[6] "The enterprise is a difficult one, but where there is a will there is a way, and what colonization needs most is a hearty will. Will springs from the two elements of moral sense and self-interest. Let us be brought to believe it is morally right, and at the same time favorable to, or at least not against our interests to transfer the African to his native clime, and we shall find a way to do it, however great the task may be."[7] It is apparent, therefore, that before coming to the presidency, Lincoln had quite definite views on the matter of colonization. His interest arose not only with the good of the freedmen in view, but with the welfare of the white race in mind, as he is frank enough to state.

After being made President, the question of colonization arose again.

Large numbers of slaves in the Confederate States not only became actually free by escape and capture but also legally free through the operation of the confiscation acts. In this new condition, their protection and care was to a considerable extent thrown upon the government. To solve this problem Lincoln decided upon a plan of compensated emanc.i.p.ation which would affect the liberation of slaves in the border States, and he further considered the future of the recently emanc.i.p.ated slaves and those to be freed.[8]

Taking up this question in his first annual message, he said: "It might be well to consider, too, whether the free colored people already in the United States could not so far as individuals may desire be included in such colonization," (meaning the colonization of certain persons who were held by legal claims to the labor and service of certain other persons, and by the act of confiscating property used for insurrectory purposes had become free, their claims being forfeited). "To carry out the plan of colonization may involve the acquiring of territory, and also the appropriation of money beyond that to be expended in the territorial acquisition. Having practiced the acquisition of territory for nearly sixty years, the question of const.i.tutional power to do so is no longer an open one to us.... On this whole proposition, including the appropriation of money with the acquisition of territory, does not the expediency amount to absolute necessity--that without which the government itself cannot be perpetuated?"[9]

Congress responded to this recommendation in separate acts, providing in an act, April 16, 1862, for the release of certain persons held to service or labor in the District of Columbia, including those to be liberated by this act, as may desire to emigrate to the Republic of Hayti or Liberia, or such other country beyond the limits of the United States, as the President may determine, provided the expenditure does not exceed one hundred dollars for each immigrant.[10] The act provided that the sum of $100,000 out of any money in the Treasury should be expended under the direction of the President to aid the colonization and settlement of such persons of African descent now residing in the District of Columbia.[11] It further provided that later, on July 16, an additional appropriation of $500,000 should be used in securing the colonization of free persons.[12] A resolution directly authorizing the President's partic.i.p.ation provided "that the President is hereby authorized to make provision for the transportation, colonization and settlement in some tropical country beyond the limits of the United States, of such persons of the African race, made free by the provisions of this act, as may be willing to emigrate, having first obtained the consent of the government of said country to their protection and settlement within the same, with all the rights and privileges of freemen."[13]

The consent of Congress was given under protest and opposition from some individual members. Charles Sumner in and out of Congress attacked the plan with vigor,[14] but in spite of this opposition the recommendation was carried.

On several occasions Lincoln seized the opportunity to present his views and plans to visiting groups and committees. On July 16, 1862, when the President was desirous of securing the interest of the border State representatives in favor of compensated emanc.i.p.ation the plan for colonization came to light. His appeal to these representatives was: "I do not speak of emanc.i.p.ation at once but of a decision to emanc.i.p.ate gradually. Room in South America for colonization can be obtained cheaply and in abundance, and when numbers shall be large enough to be company and encouragement to one another the freed people will not be so reluctant to go."[15]

Again on the afternoon of August 14, 1862, the President gave an audience to a committee of men of color at the White House. They were introduced by Rev. J. Mitch.e.l.l, Commissioner of Emigration. E. M.

Thomas, the chairman, remarked that they were there by invitation to hear what the executive had to say to them. Having all been seated the President informed them that a sum of money had been appropriated by Congress and placed at his disposal for the purpose of aiding colonization in some country, of the people, or a portion of those of African descent, thereby making it his duty as it had been for a long time his inclination to favor that cause. "And why," he asked, "should the people of your race be colonized and where? Why should they leave this country? You and we are different races. We have between us a broader difference than exists between almost any other two races.

Whether it is right or wrong I need not discuss, but this physical difference is a great disadvantage to us both, as I think. Your race suffer very greatly, many of them, by living among us, while ours suffer from your presence. In a word we suffer on each side. If this is admitted it affords a reason why we should be separated. If we deal with those who are not free at the beginning and whose intellects are clouded by slavery we have very poor material to start with. If intelligent colored men, such as are before me, would move in this matter much might be accomplished. It is exceedingly important that we have men at the beginning capable of thinking as white men and not those who have been systematically opposed."

The place the President proposed at this time was a colony in Central America, seven days' run from one of the important Atlantic ports by steamer. He stated that there was great evidence of rich coal mines, excellent harbors, and that the new colony was situated on the highways from the Atlantic or Caribbean to the Pacific Oceans. He told this delegation of men to take their full time in making a reply to him. The delegation withdrew, and we are unable to discover any information regarding the reply. Evidently the group of men never returned to make reply to the appeal of the President.[16]

In the Second Annual Message December 1, 1862, more practical suggestions were made to Congress by the President. Says he: "Applications have been made to me by many free Americans of African descent to favor their emigration, with a view to such colonization as was contemplated in recent acts of Congress. Other parties at home and abroad--some upon interested motives, others upon patriotic considerations, and still others influenced by philanthropic sentiments have suggested similar measures; while on the other hand several of the Spanish American Republics have protested against the sending of such colonies to their respective territories. Under these circ.u.mstances I have declined to move any such colony to any State without first obtaining the consent of the government, with an agreement on its part to receive and protect such emigrants in all the rights of freemen. I have at the same time offered to several States situated within the tropics, or having colonies there to negotiate with them, subject to the advice and consent of the Senate, to favor the voluntary emigration of persons of that cla.s.s to their respective territories upon conditions which shall be equal, just and humane.

Liberia and Hayti are as yet the only countries to which colonies of African descent from here could go with certainty of being received and adopted as citizens; and I regret to say such persons contemplating colonization do not seem so willing to go to those countries as to some others, nor so willing as I think their interest demands. I believe, however, opinion among them in this respect is improving; and that ere long there will be an augmented and considerable migration to both countries from the United States."

Later in the same message Congress is requested to appropriate money and prepare otherwise for colonizing free colored persons with their own consent at some place without the United States. The President continues: "I cannot make it better known than it already is, that I strongly favor colonization and yet I wish to say there is an objection urged against free colored persons remaining in the country, which is largely imaginary, if not sometimes malicious. It is insisted that their presence would injure and displace white labor and white laborers. Is it true then that colored people can displace any more white labor by being free than by remaining slaves? If they stay in their old places they jostle no white laborers; if they leave their old places they leave them open to white laborers. Logically then there is neither more nor less of it. Emanc.i.p.ation even without deportation would probably enhance the wages of white labor and very surely would not reduce them. Reduce the supply of black labor by colonizing the black laborer out of the country and by precisely so much you increase the demand for and wages of white labor."[17]

Pursuant to the power given the President, negotiations were begun with the foreign powers having territory or colonies within the tropics, through the Secretary of State, W. H. Seward, mainly to ascertain if there was any desire on the part of these governments for entering into negotiation on the subject of colonization. Negotiations were to be begun only with those powers which might desire the benefit of such emigration. It was suggested that a ten years' treaty should be signed between the United States and the countries desiring immigration. The latter were required to give specific guarantees for "the perpetual freedom, protection and equal rights of the colonies and their descendants." Before and after the transmission of the proposals to foreign countries, propositions came from the Danish Island of St. Croix in the West Indies, the Netherland Colony of St.

Swinam, the British Colony of Guiana, the British Colony of Honduras, the Republic of Hayti, the Republic of Liberia, New Granada and Ecuador. The Republics of Central America, Guatemala, Salvador, Costa Rica, and Nicaragua, objected to such emigration as undesirable.[20]

Great Britain rejected the proposal as a governmental proposition on the ground that it might involve the government in some difficulty with the United States government because of fugitives, and therefore expressed her disagreement with such a convention. Seward had a.s.serted that there was no objection to voluntary emigration; the government of British Honduras and Guiana then appointed immigration agents who were to promote the immigration of laborers by using Boston, New York and Philadelphia as emigration ports.

The President came to be of the firm opinion that emigration must be voluntary and without expense to those who went. This was repeatedly a.s.serted according to reports of the Cabinet meeting by Gideon Wells.[21] The Netherlands sought to secure a labor supply for the colony of Swinan for a term of years, using the freedmen as hired laborers. Seward objected to the acceptance of such a proposal.

Of all the propositions offered President Lincoln seemed satisfied with two--one was for the establishment of a colony in the harbor of Chiriqui in the northeastern section of the State of Panama,[22] near the republics of New Granada and Costa Rica. The situation seemed favorable not only because of the ordinary advantages of soil and climate but also because of its proximity to a proposed ca.n.a.l across the Isthmus of Darien and because of its reputedly rich coal fields.

There were two objections to this plan. One was the existence of a dispute over territory between the republics of Costa Rica and Granada. The other grew out of a specific examination of the coal fields by Professor Henry of the Smithsonian Inst.i.tute.[23] His report doubted the value of the coal bed and advised a more thorough examination before closing the purchase. Before the project could be examined a more acceptable proposition appeared. In addition it also developed that there was opposition to Negro emigration from several of the States of Central America.[24]

An effort was then made to establish a colony on the island of A'Vache in the West Indies. This colony was described in a letter to the President by Bernard k.o.c.k, represented to be a business man. This site was described as the most beautiful, healthy and fertile of all the islands belonging to the Republic of Hayti, and in size of about one hundred square miles. "As would be expected," writes k.o.c.k, "in a country like this, soil and climate are adapted for all tropical production, particularly sugar, coffee, indigo, and more especially cotton which is indigenous. Attracted by its beauty, the value of its timber, its extreme fertility and its adaptation for cultivation, I prevailed on President Geffrard of Hayti to concede to me the island, the doc.u.mentary evidence of which has been lodged with the Secretary of the Interior."[25]

On December 31, 1862, there was signed a contract by which, for a compensation of $50 per head, k.o.c.k agreed to colonize 5,000 Negroes, binding himself to furnish the colonies with comfortable homes, garden lots, churches, schools and employ them four years at varying rates.

He further agreed to obtain from the Haytian government a guarantee that all such emigrants and their posterity should forever remain free, and in no case be reduced to bondage, slavery or involuntary servitude except for crimes; and they should specially acquire, hold and transmit property and all other privileges of persons common to inhabitants of a country in which they reside. It would be further stipulated that in case of indigence resulting from injury, sickness or age, any such emigrants who should become pauperous should not thereupon be suffered to perish or come to want, but should be supported and cared for as is customary with similar inhabitants of the country in which they should be residents.[26]

k.o.c.k also proposed a scheme to certain capitalists in New York and Boston. This had nothing to do with the contract with the President.

He proposed to transport 500 of these emigrants at once, begin work on the plantations, and by the end of the following September--a period of eight or nine months--he estimated that this group could raise a crop of 1,000 bales of cotton. It was planned that the colonists should secure from the island a profit of more than 600 per cent in nine months. k.o.c.k estimated his necessary expenses as $70,000, and all expense incurred by freighting ships and collecting immigrants was to be borne by the government. It soon became known to the government that k.o.c.k had sought the aid of capitalists and money makers.

Suspicion as to the honesty of his purposes was then aroused. It was finally discovered also that he was in league with certain confederates to hand over slaves to him as captured runaways on the condition of receiving a price for their return. Lincoln investigated the matter and discovered that k.o.c.k was a mere adventurer and the agreement with him was cancelled.[27]

A certain group of capitalists, whose names are not mentioned, then secured the lease from k.o.c.k and entered into contract with the government through the Secretary of the Interior, April 6, 1863.[28]

Under this agreement a shipload of colonists from the contrabands at Fortress Monroe, said to number 411-435, were embarked.[29] An infectious disease broke out through the presence on board of patients from the military hospital on Craney Island and from twenty to thirty died. On the arrival in the colony no hospitals were ready, no houses were provided, and the resulting conditions were appalling. k.o.c.k was sent along as Governor, and he is said to have put on the air of a despot and by his neglect of the sick and needy to have made himself obnoxious.

Rumors of the situation came to the President and he sent a special agent, D. C. Donnohue, who investigated the matter and made a report.

Donnohue elaborately described the deplorable situation of the inhabitants, the wretched condition of the small houses and the prevalence of sickness. He further reported that the Haytian government was unwilling that emigrants should remain upon the island and that the emigrants themselves desired to return to the United States. Acting upon the report, the President ordered the Secretary of War to dispatch a vessel to bring home the colonists desiring to return.[30] On the fourth of March the vessel set sail and landed at the Potomac River opposite Alexandria on the twentieth of the same month. On the twelfth of March, 1864, a report was submitted to the Senate showing what portion of the appropriation for colonization had been expended and the several steps which had been taken for the execution of the acts of Congress.[31] On July 2, 1864, Congress repealed its appropriation and no further effort was made at colonization.[32]