President James K. Polk Intervenes to Free Illegally Imported Slaves, As He Asserts the Primacy of the Presidency Over That of the States in Disposing of Them

This important case, perhaps unique in its circumstances, required a formal opinion of the Attorney General, an opinion which formed published precedent on Presidential authority; The freed slaves did reach Liberia; Maria Regla appears as an arriving passenger on a ship in 1848 to the newly independent Liberia

Congress first prohibited the foreign slave trade in an act effective January 1, 1808, the earliest date permitted under the U.S. Constitution. However, smugglers continued to transport enslaved Africans into the United States, and the Congress responded with a succession of acts intended to halt this illegal traffic. The act of 1819 was the first to grant the President significant authority to enforce the prohibition and was the first act to provide for the return to Africa of the illegally enslaved individuals. Earlier acts deferred to state laws, some of which permitted the pubic auction and enslavement of the newly-arrived Africans.

Section 4 of the act of 1819 specifically reads, “That when any citizen, or other person, shall lodge information, with the attorney for the district of any state or territory, as the case may be, that any negro, mulatto, or person of colour, has been imported therein, contrary to the provisions of the acts in such case made and provided, it shall be the duty of the said attorney forthwith to commence a prosecution, by information; and process shall issue against the person charged with holding such negro, negroes, mulatto, mulattoes, person or persons of colour, so alleged to be imported contrary to the provisions of the acts aforesaid: And if, upon the return of the process executed, it shall be ascertained, by the verdict of a jury, that such negro, negroes, mulatto, mulattoes, person or persons of colour, have been brought in, contrary to the true intent and meaning of the acts in such cases made and provided, then the court shall direct the marshal of the said district to take the said negroes, mulattoes, or persons of colour, into his custody, for safe keeping, subject to the orders of the President of the United States…”

The highest profile U.S. cases relating to the slave trade were those of the ships Antelope (1825) and the Amistad (1841), both seized on the high seas, and both resulted in massive publicity. The Act of 1819 was applied to them, and it was the Courts that ruled on the fate of the slaves, consistent with that Act. They freed slaves on those ships and returned them to Liberia.

Slaves seized by US vessels on the high seas were clearly subject to Federal jurisdiction.  In fact, cases where illegally imported slaves were seized in ports or on state property were quite rare compared to those seized at sea.  During the combined administrations stretching from Andrew Jackson’s second term through 1847, of those which went to court or were subject to a claim, only 3 of the approximately 20 fall under this category.

In 1846, the Brig Titi was seized in Louisiana, not on the sea, and discovered on board were two Africans suspected of being illegally imported slaves.  They were Maria Regla and a young boy named Antonio. The ship was seized and a jury determined that the owners of the ship were in fact guilty of illegally importing slaves.

Around that same time, also in 1846, the State of Louisiana passed an “Act to Protect the Rights of Slaveholders” in that state, which reads in part that, “no slave shall be entitled to his or her freedom, under the pretense that her or she has been… in a country where slavery does not exist…” This law seemed designed to supersede state law applied previously and also any decision that might have freed Maria and Antonio.

At this point the matter came to the attention of President Polk, a slave owner himself, and who had supported the annexation of Texas, which increased slave territories in the U.S. greatly. In May of 1847, he wrote to his Attorney General, Nathan Clifford. While his letter to Clifford does not survive, it is clear from Clifford’s opinions that he was asking two broad questions.  The first was whether he had the authority under the Act of 1819 to take jurisdiction of the captured slaves in this case.  Specifically he wanted to know whether this was state or federal jurisdiction.  The second was whether he had the authority to remit the penalties against the offending importers.

Clifford wrote back in two formal opinions that are now published. He said that the President did in fact have the authority under the Act of 1819.  Citing judicial precedent, he noted that states no longer had jurisdiction in these matters and the final decision would fall to the President.  The second was that he did have the authority to remit offenses against the slave traders, provided that the remission applied only to the interests of the US itself and not others.  This was in large part due to the fact that in many cases the other property on board the ship was seized, in addition to the ship itself.

The Society for the Colonization of Free People of Color of America, commonly known as the American Colonization Society, was a group established in 1816 by Robert Finley of New Jersey which supported the migration of free African Americans to the continent of Africa.  A black person by definition must first be free to leave the United States to be re-located there. It helped to found the colony of Liberia in 1821–22 on the coast of West Africa as a place for free-born American blacks.  They had state affiliates as well. One such leader in Louisiana was William McClain.

Document signed, as President, Washington, November 12, 1847, directing the “Secretary of State to affix the seal of the United States to the warrant to the US Marshal for the District of Louisiana for the delivery to William McLain or his attorney of Maria Regla and boy Antonio, slaves, imported into the port of New Orleans, contrary to the 4th section of the Act of Congress approved March 3rd, 1819.”  This in effect freed those slaves from Marshal’s custody to be delivered to the Colonization Society.

So in this document, Polk is essentially freeing the two slaves to be sent back to Africa – to Liberia. By the signature on this document, he did so.

How many such presidential orders to free slaves pursuant to the act orders were given?  Records on this subject are scant, but we found no others existing, let alone having reached the market. The types of cases in which a president, and not an agent of the court, would be his pen have freed slaves are very few.   Such an act would have been controversial.  Most of the cases were either acted on by precedent on the high seas, where property seized was under the jurisdiction of the Navy, and the people were simply returned to Africa, or decided by a judge.  And it was only in 1846 that Louisiana, where nearly all such seizures took place on land, enacted this law asserting states rights in contravention to the 1819 law, which triggered presidential action. Thus this may possibly be the only such document issued.

This is likely the only such presidential order freeing slaves to ever reach the market.  The freed slaves did reach Liberia; Maria Regla appears as an arriving passenger on a ship in 1848 to the newly independent Liberia.

Our sincere thanks to the Papers of James Polk and the Library of Congress for their research assistance.