Nathaniel Hillyer. Egleston.

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probable, and the modern disentanglement of yellow fever from
malarial remittents deprives it of whatever small probability it
ever had. The other case, which I take from Gillespie, is
equally suggestive. The French frigate La Pique fell into the
hands of the English when Martinique was taken, in 1794, and
in November, 1795, was sent with a prize crew to Barbadoes.
On the voyage they took two hundred negroes from a French
vessel that was in danger of foundering. The negroes were
confined in the hold, and in a short time yellow fever appeared
among the La Pique's crew, and proved fatal to one hundred
and fifty of them, although it did not attack the negroes at all.
" Such a mixture of men, strangers to each other," says Gilles
pie, " has been often found to occasion sickness in ships ; and,
together with other causes, fatally operated here before the
arrival of the ship at Barbadoes. . . . This is a melancholy
instance of the generation of a fatal epidemic on board ship
at a time when the inhabitants of Barbadoes and the crews
of the other ships in company remained free from any such

The immunity of the pure-blood negro from yellow fever has
often been remarked, and it comes so near to being a universal
truth that its significance cannot be questioned. The full mean
ing of it will appear from the fact that, at Vera Cruz in 1866,
when the soldiers of the French Expedition were dying of yellow


fever by hundreds there was not even a single case of the sick
ness in the regiment of five hundred black troops that the
French had recruited in the Soudan and Nubia. The immunity
from yellow fever that the negro of unmixed blood enjoys is, to
my thinking, the most remarkable fact in pathology. Here is a
race that, in the Western Hemisphere, lives in the very haunts
of yellow fever, and yet passes unscathed through an epidemic,
while hundreds of whites are dying around them. a ln the
natives of Africa," says Doughty, a Jamaica physician of the
beginning of the century, " the constitution appeared to me as
secure against yellow fever as a person who has had the small
pox is against its recurrence." He might have said, as secure
as if they had had yellow fever itself.

The explanation of this unique fact is supplied by the theory
of Audouard, although that author gave hardly any heed to
negro immunity. The poison of yellow fever, said Audouard,
comes in the last resort from the discharge of the sick negro ; it
is generated by the fermentation or putrefaction of the dysen
teric and other filth of slave-ships. The scourings of slave-ships
had been thrown out at the ports of debarkation to mix with the
mud of creeks, careenages, and mangrove swamps, to fluctuate
to and fro with the sluggish ebb and flow of the tide, to ferment
under a tropical sun, and to taint the soil of the beach, the
foundations of houses, and the water-conduits. All this poison
ous filth has accumulated most in the very quarters where
negroes live, and it is in those amphibious quarters of towns in
the West Indies and along the shores of the Gulf of Mexico that
yellow fever lingers, and every now and then rises to an epi
demic. But it hardly touches the negro; it spares him in
proportion to the purity of his racial characters. As the
noxious miasmata that give rise to yellow fever have come
from the negro body, they cannot poison the negro again.
Yellow fever is what Sir Gilbert Blane calls a vicarious infec
tion j it is vicarious to the horrors of the " middle passage."
Dr. Audouard's theory thus acquires a certain ethical probability.

The circumstances at the small port in Biscay that first led
Dr. Audouard to this conclusion may be taken as fairly typical
of the conditions of the origin of yellow fever, not only at other
Spanish ports, but also in the Western Hemisphere, and now
and then on the west coast of Africa. It is for the most part
not simply an affair of white men being in the same ship with


negroes, but of the filth of slave-ships getting into the harbor
mud, and the soil where such ships had lain ; and through its
fermentation becoming a more or less enduring and transport
able specific infection.

On the 2d of August, 1823, a brigantine owned in Bayonne,
called the Donostiarra, arrived at Passages, a small fishing-
place near San Sebastian, to dispose of the remainder of a cargo
of West Indian produce shipped at Havana. For two or three
weeks the Donostiarra was an emporium for the sale of sugar,
tobacco, coffee, honey, bees-wax, etc. She lay on the beach,
right before the houses and shops of Passages, being approach
able on foot at low tide. When the cargo was all disposed of,
some necessary repairs on the hull were begun by the Passages
carpenters on the 18th of August. Part of the planking of her
bottom had to be renewed, and a piece Of new keel put in ; and
the workmen had hardly begun when they began to fall ill, one
after another $ and they attributed their illness to a sickening
smell that came from the foul bilges of the vessel as they opened
them up. It became difficult to get other workmen to take
their places, and extra pay had to be offered. Meanwhile two or
three of the carpenters who had been first at work died, as well
as a custom-house officer, and one or two other persons who had
been about the ship. The sickness was one that the people of
Passages, as well as the two doctors practicing there, had never
seen before. It was evidently spreading in the place, and as a
French army lay at San Sebastian, four or five miles away, the
Government sent a commission of inquiry. One of the commis
sioners was Dr. Audouard, who had been sent on a similar
mission to Barcelona two years before. The disease proved to
be yellow fever, and it attacked more than a hundred persons,
chiefly in the houses along the beach, causing forty deaths. The
Donostiarra had left Havana in the beginning of June, with a
clean bill of health. One of the crew died about the tenth day
out, probably from the effects of drinking ; and the remaining
fourteen of a crew, with five passengers, arrived at Corunna in
good health after a voyage of thirty-five days ; and all remained
well for ten days longer, while the vessel was in quarantine.

It was thus difficult to trace the epidemic at Passages to
cases of yellow fever on board. The clue that Dr. Audouard
laid hold of was, that this innocent-looking brigantine, supply
ing tobacco, coffee, sugar, and honey to the Biscayan fishermen,


was engaged in the contraband slave-trade ; she had taken out
negroes from the west coast of Africa to Havana early in the
year, and was now quietly completing her usual round voyage.
This discovery led him to inquire again into the facts of the dis
astrous epidemic at Barcelona two years before, in which five
thousand persons had died. It had been traced by common con
sent to two ships in particular, the Grand Turc and the St.
Joseph, which had to be scuttled. The fresh inquiry proved that
both of them were slavers, and that the dysenteric sickness and
mortality among the negroes on board one of them during the
trip immediately preceding had been exceptionally severe.
These singular coincidences set Dr. Audouard thinking and in
quiring. He calculated that sixty or seventy ships were making
the same kind of round voyages as the Donostiarra, the Grand
Turc, and the St. Joseph j and he concluded that the same cir
cumstances that he found at Passages and Barcelona must have
occurred repeatedly at Cadiz, Seville, Malaga, Tortosa, the Bal
earic Isles, and other Spanish ports where yellow fever had been
epidemic again and again, especially in those early years of the
century, when the doom of the legitimate slave-trade had been
pronounced, and the traffic was passing into contraband hands.
He pointed out, also, on the authority of Moreau de Jonnes, that
whereas there had been fifty-seven epidemics in the American
ports, from Newport down to New Orleans, during the sixteen
years preceding the abolition of the traffic in 1808, there had
been only seven in the sixteen years following that event, and
even these he thought might be due to the trade being carried
on by stealth. Dr. Audouard lived long enough to see a still
greater decrease of yellow fever on the Atlantic sea-board of the
United States, and to see the fever establish itself as a new dis
ease at Rio and other Brazilian ports in 1849, the slave-trade
having been diverted to Brazil, when all other countries except
the Spanish Antilles had given it up.

In seeking to explain all the outbreaks of yellow fever, it is
necessary to keep in mind that it has certain great endemic cen
ters, such as Havana, at which the peculiar kind of filth that
causes it has been discharged in material quantities, penetrating
the mud of harbors and the soil of low-lying quarters of towns,
where it has fermented and its virus multiplied, and has so
become a long-enduring I do not say permanent source of
poisonous miasmata. The poison has been carried from these


harbors over and over again in the bilges of wooden ships ; it
has entered through their opening seams, and has arisen in
noxious vapors to infect the crew ; and, as we have seen in the
instances that occurred in Spain, it has even delayed its destruc
tive power until it has crossed the ocean and mixed with the
shore mud of a distant port. It becomes even more virulent
than amidst its primitive mud, when it is sucked up through
the planking of a ship's bottom, to ferment in airless recesses of
her hold. In this way wooden ships, that have been lying up in
"West Indian and Brazilian ports, have become sources of dan
ger, even in recent times, to New York, St. Nazaire, and Swansea,
and may be sources of danger for some time to come. They are
dangerous, because they carry a material quantity of the specific
ally poisonous filth in their bilges ; and it is noteworthy, says
Blane, that the fevers arising from this cause " are found some
times to be contagious and sometimes not, according to the
intensity and nature of the effluvia."

I shall mention briefly the most terrible historical instance of
ships charging themselves with the poisonous mud of a slave-port.
On the capture of Port au Prince, Hayti, June 4, 1794, about forty
merchantmen were found in the harbor, most of them large ves
sels, laden with cargoes of coffee, sugar, cotton, and indigo, which
had been lying stowed in them from one to three years. During
all that time, many of them had never had their holds opened,
owing to the suspension of labor and business during the revo
lution. English prize crews were put on board to navigate them
to Port Royal and other British West Indian ports, and they
had hardly put to sea when yellow fever attacked them with
unheard-of suddenness and virulence. One of the prizes was
picked up by a Guinea man, and every man on board was found
to be dead. Even the negroes who were put to clean them out
took the fever and died.

Of the prevalence of yellow fever at Havana I need not speak,
nor is it necessary to point out that for two centuries slavers
that entered that spacious bay might have been counted by the
hundred in almost any year. The bay of Havana is land-locked
on every side by high hills ; it opens to the sea by a single nar
row channel; there are several shoals or mud-banks in its recesses,
and the tide does not rise and fall more than three or four feet.
The experience and reasonings of men who held no theories of


disease taught them that there was something wrong with the
sea- water at Havana. La Roche says :

" The water of the bay is often very offensive ; all vessels pump their bilge-
water into it, and it cannot be changed. It is so full of decomposing mate
rials that the British naval service has a standing order not to use the water
for any purpose on board. The United States ship-of-war Macedonian arrived
from Boston at Havana, April 28, 1822, with a healthy crew. There was no
yellow fever in Havana at the time. Water was let into the hold at intervals
between the 28th of April and the 7th of May ; when the captain, hearing
of the standing rule in the English navy, discontinued the practice. A few
days after being let in, the water in the bilges was found to be very filthy and
offensive, so much so that, when it was being pumped out, all of the crew
except the men required for the pumps were sent either to a distance in the
boats or into the tops. The chain-cable, when hove in, was found covered with
an offensive gelatinous substance. The first case of yellow fever on board
occurred on the 8th of May, and the patient died on the llth; another death
occurred on the 19th, and then the disease spread rapidly and fatally among
the crew and officers ; and, although the vessel put to sea, she continued to
be a source of infection for several months, one hundred and one out of a
company of three hundred and seventy-six dying of yellow fever. In this
case the putrid sea-water of Havana harbor was the source of yellow fever ;
and such putridity can have had no other origin than the accumulated filth
of hundreds of slave-ships discharged into it for two centuries."

Space does not permit me to give all the evidence that I have
put together of this kind. The writings of Lind, Trotter, and
Gillespie furnish graphic descriptions of the careenages of Port
Royal, in Martinique; of English Harbor, in Antigua; of
Bridgetown, in Barbadoes ; of Port au Prince, in Hayti, and the
like. There is always the sweltering mud, the noxious exhala
tions, the air kept stagnant by the inclosure of hills, and the
English sailors dying on board the ships-of-war like rotten
sheep. Speaking of yellow fever at Bridgetown, in 1694, Lind
says : " Captain Thomas Sherman, of H. M. S. Tiger, in the two
years that he lay there, buried out of her six hundred men, as
he told me, though his complement was but two hundred."
Again, the same writer says of English Harbor, in Antigua:
"The stagnated air becomes so unwholesome that men, after
being there a few days, are suddenly seized with violent vomit
ings, headaches, delirium, etc., and in two or three days more
the dissolved mass of blood issues from every pore. In such
places the water of the sea itself would probably become putrid,
and destructive to the very fish, were it not kept in motion by a
gentle flux and reflux, which may be perceived every day." Once


more, Gillespie says of the yellow fever at Port Royal in 1794 :
" The disease did not make any rapid progress until the ship had
remained some weeks in the bay of Trois Islets, where the
sultry calms that reigned in August and continued all the
hurricane months, the vitiated state of the internal air of the
ship, from dampness, foul ballast, the steam of bilge-water, and
the like, promoted the spreading of the disease. . . . The con
tagion, which had been remarked to be active on board, did not
seem to be powerful in exciting the disease on shore ; few, if
any, persons were infected by it on land."

But it wants a great deal more than the natural exhalations
of even a tropical harbor, or the mangrove swamps around it, to
produce yellow fever. Something has been added to the natural
mud of some of those harbors, and that something was the filth
pumped out or thrown overboard from every slaver that had
arrived during a period of nearly two hundred years. The
cleaning out of a slaver after a run from Africa was no ordinary
business ; white men could not be got to do it, probably because
the effluvia did not agree with their health, and the blackest of
Kroomen from Sierra Leone were set to the task. But the risk
of the whites was by no means confined to the actual cleaning
out of the ship's hold. The filth was not by any means got rid
of when it was thrown into the water of a land-locked and
almost tideless harbor ; it entered into the composition of the
mud, and even tainted the sea- water itself. The noxious exhala
tions, or miasmata, which have at all times and in every place
been assigned as the cause of yellow fever, are not the natural
exhalations of the soil or water, nor can they arise from soil and
water fouled by ordinary sewage. The filth that breeds it is the
filth of another race, and, furthermore, it is the peculiar filth of
the " middle passage."

How long that taint can linger in a harbor's mud, or in the
alluvial foundations of houses along the shore, it would be
hazardous to pronounce. Certain it is, that the soil of Philadel
phia and the mud of the Delaware are long since clear of it,
nor is it likely that it still exists to any considerable extent in
the soil of Charleston ; and we may assume that the Gulf and
West Indian ports would not have retained it for so many years
after they ceased to receive its annual accretions, but for the
sluggishness of their waters. The plunging tides of the Atlantic
have almost washed away the traces of a cruel traffic that once


visited every American port from Cape Cod to the Cape of
Florida, a traffic that brought in its train the far-reaching
Nemesis that wrong-doing never fails to bring. It may take
long to remove the last traces of slave-ships in the bay of
Havana, and efface the memory of wrongs that even the deep
water of the sea refuses to hide ; but the ministers of Nature
are silently working to preserve both the physical and the moral
order, and even along the Spanish main there is something to
hope from

" The moving waters at their priest-like task
Of pure ablution round earth's human shores."



IN a recent number of this magazine appeared an article on
" Juries and Jurymen." The writer, Judge Pitman, of Massa
chusetts, took the ground that, while some improvements could
be made, the jury system was good in the main, and should be
retained. With reference to the improvements suggested, I
have nothing to say. Some of them, as, for instance, allowing
three-fourths of the jury to find a verdict in civil cases, have
been tried in California, and possibly in other States, and have
been found to work well enough. But they are subordinate to
the main question, and can have but little interest for general
readers. I believe the main question whether the system itself
is good to be worthy of discussion ; and as I cannot agree with
the learned writer of the article referred to, I will briefly ex
amine the reasons that he adduces in support of the system, and
then set forth my objections to it.

His opening argument is, that serving on juries has an edu
cating influence upon the citizen, and, while not going so far as
De Tocqueville, he agrees with that- writer in the following :
" It teaches men to practice equity ;' every man learns to judge
his neighbor as he would himself be judged, . . . and this is
the soundest preparation for free institutions." I doubt whether
this is practically true. But let us assume that it is true. The
answer is, that to teach men equity, or to be good citizens, is not
the purpose of the jury system. Its purpose is to assist in the
administration of justice ; and if it does not do that, it is mani
festly a failure. Any educating influence that it may have is wholly
incidental and collateral. If it fails in its purpose, it is no argu
ment for its continuance that it has some incidental effect that
is beneficial. As well might it be said in defense of a legislature
that passed nothing but bad laws, that its sessions afforded
splendid practice for the members, and that, if they should only


be reelected a sufficient number of times, they would develop
into a body of Solons who would do honor to the country.

He next says : " The common law itself has grown up
alongside of, and has been established in its principles with
a reference to, trial by jury ; so that the latter has be
come a congruous part of the former. Certain elementary
rules of law are so closely associated with this system of proced
ure that change in one would require alteration in the other."
The inference evidently intended is, that any such change would
be bad. But it is not perceived how a change would be required.
The learned writer has not mentioned any rule of substantive
law which, so far as I can see, would be changed by the abolition
of the jury system. He gives but two illustrations of the
change he apprehends, viz., the rule that in criminal prosecu
tions the jury are to give the accused the benefit of a reasonable
doubt, and the rule that in actions for negligence they are to
ascertain what was " such care as men of ordinary prudence and
capacity would take under like circumstances in the conduct and
management of their own affairs." But how are these rules
different when applied by a judge from what they are when
applied by a jury ? The rules of law are the same in each case,
and would be laid down in precisely the same language by
courts and text-book writers. Is it not apparent that the only
difference is in the instruments through which they are applied ?
In one sense it may be said that the reasonable doubt of twelve
men is a different thing from the reasonable doubt of one
man ; but in precisely the same sense it may l?e said that the
reasonable doubt of one jury is a different thing from that of
another jury. Surely the learned writer would not say that the
law is changed every time a case goes before a different jury !
What he evidently means is, that the rules mentioned would be
better applied by a jury than by a judge. But this is assuming
the question at issue.

No other instances than the two referred to are given by
Judge Pitman, and it is therefore difficult to appreciate the
nature of the change he apprehends j and until the nature of
any particular change is known, it cannot be determined whether
such change is desirable or not. Several of the rules of the com
mon law itself were simply barbarous. Equity jurisprudence is
nothing "but the body of rules devised by enlightened chancellors
during several centuries, for the purpose of evading the harsh
VOL. cxxxix. NO. 335. 26


and rigid rules of the common law, and for the protection of
rights not recognized by it And the greater part of what is
good in modern legislation upon legal questions is the incorpo
ration into the laws of the principles wrought out by courts of
equity. It can hardly be affirmed that this process is finished,
or that perfection has been attained. It is certainly not true
that no change whatever would be undesirable.

The next position is this : " One of the serious consequences
of compelling the court to try all questions of fact as well as
of law, is the danger of thus impairing the confidence of litigants
in its impartiality. All understand that the judge does not
make, but declares, the law, and so has no room for choice or-
personal bias. But, in deciding facts, he must necessarily judge
and weigh parties and witnesses ; and as the most ignorant
think they can decide readily as to the facts, while they know
nothing of law, they assume to revise the judgment of the court;
and what seems to them patent error they are apt to attribute
to latent prejudice. 77 It is to be observed here that it is not
charged that the judge would in fact be swayed by prejudice, or
decide incorrectly, but that ignorant persons would be apt to
think he did, and so lose confidence in him. But the same thing
may be said of the present condition of affairs. It is not entirely
true that a judge decides questions of law only. He has in al
most every action to decide questions that are governed by no
fixed rules, but are said to be addressed to his " discretion " ;
and the exercise of this discretion furnishes as much room for
personal bias as the decision of an issue of fact could, and so
gives rise to the same danger of distrust and loss of confidence.

But, aside from the foregoing, I do not think experience
bears out the assertion that ignorant persons, although criti
cising decisions of fact, abstain from questioning decisions as to
the law. It seems to me that they criticise the one quite as
much as the other. With the mass of mankind, ignorance is not
a reason for refraining from distrust or criticism. So far from
it, the less the average man understands about a thing, the more
apt he is to distrust it, and the most ignorant are the most
prone to criticise and denounce. Fools rush in where angels

Online LibraryNathaniel Hillyer. EglestonThe North American review (Volume 139) → online text (page 34 of 60)