USA > Massachusetts > Notes on the history of slavery in Massachusetts > Part 12
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"Given under my Hand, at Head-Quarters, PHILIPSBURGH, the 30th day of June 1779.
"H. CLINTON.
" By his Excellency's Command,
" JOHN SMITH, Secretary."
When this proclamation was firft iffued, the words enclofed within brackets were not in it. They were added in the publication two months later-with a ftatement that the omiffion was a miftake of the printers.
This method of dealing with captive negroes was not confined to the British Army at that time.
At the capture of Stony Point by General Wayne, three negroes were taken among the fpoils, and al- though we have not been able to determine what dif-
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pofition was finally made of them, the following letter of General Wayne on the fubject is not without inter- eft here. Writing from New Windfor on the 25th July, 1779, to Lieut .- Col. Meigs, he fays :
" The wifh of the officers to free the three Negroes after a few Years Service meets my moft hearty approbation, but as the Chance of War or other Incidents may prevent the officer [owner] from Complying with the Intention of the Officers, it will be proper for the purchafer or purchafers to fign a Condition in the Orderly Book.
. . I would chearfully join them in their Im- mediate Manumiffion-if a few days makes no mate- rial difference, I could with the fale put off until a Confultation may be had, and the opinion of the Officers taken on this Bufinefs." Dawson's Stony Point, pp. III, 118.
The difcuffions which arofe out of the breaches of the Treaty of Peace in 1783, which put negroes on the fame footing with any other article of property, and the fettlement made by Mr. Jay's Treaty in 1794, furnifh an authoritative ftatement of the pre- vailing views of public law concerning the ftatus of negroes. Hamilton, in his Camillus, No. III., fays : "Negroes, by the law of the States, in which flavery is allowed, are perfonal property. They, therefore, on the principle of thofe laws, like horfes, cattle, and other moveables, were liable to become booty-and belonged to the enemy [captor] as foon as they came into his hands." American Remem- brancer, I., 57.
Gen. Wafhington, the Continental Congrefs, and
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Slavery in MafachuSetts. 16I
the Commiffioners appointed by Congrefs in 1783 to fuperintend the embarkation of the Britifh from New York, all concurred in this view. Indeed the Com- miffioners, Egbert Benfon, William S. Smith, and Daniel Parker, fhowed conclufively that they had no hefitation in confidering negroes, horfes, and other property, as being precifely on the fame footing; and felected a claim for a negro as one of the ftrongeft that could be found to enforce a compliance with the ftipulation in the Seventh Article of the Treaty. Nor did the Britifh Miniftry at any period of the negotiations raife any queftion as to this doctrine.
The differences of opinion, and the arguments of both parties in the National Congrefs, only confirm the fact, which indeed is obvious enough from the language of the Article. This was in 1795, during the firft feffion of the fourth Congrefs, when the Houfe of Reprefentatives embraced many of the ableft men in the country. Debates on the British Treaty, Part II., PP. 129, 147, 253, 291-2, 301. Papers relative to Great Britain, PP. 5-9.
After the laft war with England fimilar difficulties and difcuffions arofe with reference to the firft article of the Treaty of Ghent, which protected the rights of our citizens in their "flaves or other private pro- perty." After a long ftruggle of the characteriftic diplomacy of Great Britain to evade it, a large fum was paid as indemnity for the flaves carried off in violation of the treaty ftipulation.
The doctrine of prize in negroes fell only with the Slave-Trade, and the Courts of England were very flow to recognife its fall. As late as 1813, Sir William
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Scott condemned one hundred and ninety-nine flaves, as "good and lawful prize to the captors," declaring at the fame time that " flaves are deemed personal pro- perty, and pafs to the captors under the words of the Prize Act, 'Goods or Merchandizes.'" I Dodfon's Reports, 263.
The earlieft judicial recognition, within our know- ledge, of the fact that negroes were no longer to be held and taken as "good and lawful prize to the captors," was in the United States Diftrict Court, in South Carolina, in July, 1814. It appears that the queftion was regarded as new. The Court previoufly had not proceeded to condemnation of flaves brought in as prize of war; but ordered their confinement as prifoners.1 And in fome cafes, they had been received as fuch by the British authority refident at Charlefton. The intereft of parties requiring a formal decifion on the point of prize, the libel was filed, in this cafe, Joseph Almeida, Captain of the American Privateer Caroline, v. Certain Slaves. Mr. Juftice Drayton faid he had never had any doubt on the fubject, and declared that "Slaves captured in time of war cannot be libelled as prize : nor will the Diftrict Court of the United States confider them as prifoners of war. The Court confiders the difpofition of them as a matter of State, in which the judiciary fhould not interfere." Hall's Law Journal, v., 459.
In view of all thefe facts, the Maffachufetts Re- folve of September 16th, 1776, juftly challenges our admiration. It lights up the dreary record with a
1 They were informally confidered as prifoners, not fo decreed by Court.
Slavery in Mafachufetts. 163
fudden and brilliant glare, as of a light fhining in great darknefs. Although fhorn of its magnanimous declaration of principles, in its progrefs through the legiflature, its terms would ftill introduce a new theory and practice into the law of nations, annihilating the doctrine of prize in negroes, which had been every- where maintained before, and which continued with- out queftion elfewhere. If it was really adhered to, it deferves all the honor that has been claimed for it as a long ftride in advance of all the world in civiliza- tion and humanity. But the Legiflature of Maffa- chufetts could only regulate the action of their own prize Courts and their own citizens, and did not at that time attempt to give law to the whole continent. They then recognized the fact that they could not diveft the title of flave-owners in the other Colonies in captured flaves, and their obligation to reftore them in cafes of recapture. Called upon to deal with a larger number of negroes, under circumftances more embarraffing than in the cafe already detailed, they appear to have been fatisfied with their own declared pofition, and did not attempt to extend the principle of their new rule to all negro flaves who came or were brought within their jurifdiction.
In the month of June, 1779, the prize-fhip, Victoria, was brought into the port of Bofton. The Victoria was a Spanifh fhip which had cleared from South Carolina for Cadiz. On her paffage fhe was attacked by an Englifh privateer, made a fuccefsful refiftance, and captured her affailant, who had on board thirty-four negroes which had been taken from the plantations of feveral gentlemen in South Carolina.
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The Spaniard, after taking the negroes on board and injuring the veffel, difmiffed her. A few days after- ward the fhip fell in with and was taken by two Britifh letters of marque and ordered into New York. On her paffage there fhe was recaptured by the Hazard and Tyrannicide, two veffels in the fervice of Maffa- chufetts, and brought fafely into port. On the 21ft of June, by order of the Board of War, fhe was placed in charge of Capt. Johnfon, to direct the unloading, etc., in behalf of the State. The Board of War im- mediately reprefented to the Legiflature the facts relating to the negroes thus "taken on the high feas and brought into the State;" being evidently unable to apply the refolution of 1776 to this cafe.
On the 23d of June, 1779, it was ordered in the Houfe of Reprefentatives, "that Gen. Lovell, Capt. Adams, and Mr. Cranch be a committee to confider what is proper to be done with a number of negroes brought into port in the prize fhip called the Lady Gage."1 Journal, p. 60. The next day, "the com- mittee appointed to take into confideration the ftate and circumftances of a number of negroes lately brought into the port of Bofton, reported a refolve directing the Board of War to inform our delegates in Congrefs of the ftate of facts relative to them, to put them into the barracks on Caftle Ifland, and caufe them to be fupplied and employed." Ibid., pp. 63, 64. The refolution was immediately paffed and concurred in by the Council. It appears in the printed volume, among the Refolves of June, 1779.
1 This name of " Lady Gage " is probably a miftake, for this proceed- ing evidently led to the refolution of the following day.
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" CLXXX. Refolve on the Reprefentation of the Board of War refpecting a number of negroes captured and brought into this State. Paffed June 24, 1779.
" On the reprefentation made to this Court by the Board of War, refpecting a number of negroes brought into the Port of Bofton, on board the Prize Ship Victoria :
" Refolved, that the Board of War be and they are hereby directed forthwith to write to our Delegates in Congrefs, informing them of the State of Facts relating to faid Negroes, requefting them to give informa- tion thereof to the Delegates from the State of South Carolina, that fo proper meafures may be taken for the return of faid Negroes, agreeable to their defire.
" And it is further Refolved, that the Board of War be and they hereby are directed to put the faid Negroes, in the mean time, into the barracks on Caftle Ifland in the Harbor of Bofton, and caufe them to be fupplied with fuch Provifion and Clothing as fhall be neceffary for their comfortable fupport, putting them under the care and direction of fome Prudent perfon or Perfons, whofe bufinefs it fhall be to fee that the able-bodied men may be ufefully employed during their ftay in carrying on the Fortifications on faid Ifland, or elfewhere within the faid Harbor; and that the Women be employed according to their ability in Cooking, Wafhing, etc. And that the faid Board of War keep an exact Account of their Expenditures in fupporting faid Negroes." Refolves, p. 51.
This refolve was immediately carried into execu- tion. On the 28th of June, Edward Revely, the prize-mafter, was ordered to "deliver Thos. Knox from fhip Victoria the Negroes that are on board for the purpofe of their being fent to Caftle Ifland pr. Order of Court," and accordingly there were "34 Negroes delivered." At the fame time, the Board of War ordered the "iffue to the Negroes at Caftle Ifland-I lb. of Beef, Ilb. of Rice pr. day," upon the orders of Lt .- Col. Revere, the commandant of Caftle
.
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Ifland. Minutes Board of War. His letter of inftruc- tions from the Board is as follows :
" War Office, 28 June, 1779. " Lt .- Col. Revere,
" Agreeable to a Refolve of Court we fend to Caftle Ifland and place under your care the following Negroes, viz. :
[19] Men, [Io] Women, [ 5] Children,
lately brought into this Port in the Spanifh retaken Ship Victoria. The Men are to be employed on the Fortifications there or elfewhere in the Harbor, in the moft ufeful manner, and the Women and Children, according to their ability, in Cooking, Wafhing, etc. They are to be allowed for their fubfiftence One lb. of Beef, and one lb. of Rice per day each, which Com- miffary Salifbury will furnifh upon your order, and this to continue until our further orders.
" By Order of the Board."
In accordance with the refolve of Court, the Board of War, by their Prefident, Samuel P. Savage, ad- dreffed a letter to Meffrs. Gerry, Lovell, Holten, etc., etc., delegates from Maffachufetts in the Conti- nental Congrefs, dated War Office, 29th June, 1779, in which are fet forth the principal facts in the cafe, and the inftructions of the Legiflature. In conclufion, the Prefident fays, "Every neceffary for the fpeedy difcharge of thefe people, we have no doubt you will take, that as much expenfe as poffible may be faved
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to thofe who call themfelves their owners." This letter alfo gives the number of the negroes, and the names of the feveral gentlemen from whofe plantations they were taken, viz. :
" 5 Men 4 Women 4 Boys I Girl belonging to Mr. Wm. Vryne.
" 9 Men I Woman belonging to Mr. Anthony Pawley.
" I Man belonging to Mr. Thomas Todd.
"2 Men 3 Women belonging to Mr. Henry Lewis.
" 2 Men 2 Women belonging to Mr. William Pawley.
"One of the negroes is an elderly fenfible man, calls himfelf James, and fays he is free, which we have no reafon to doubt the truth of. He alfo fays that he with the reft of the Negroes were taken from a place called Georgetown." Mafs. Archives, Vol. 151, 292-94.
Thefe negroes were not all detained at Caftle Ifland, until their owners were heard from. One method of providing for them is noticed in the fol- lowing extract :
" In 1779, Col. Paul Revere, who commanded there [Caftle Ifland] had feveral orders from the Council to let part of them [negroes quartered on the Ifland] live as fervants, with perfons in different towns. An exprefs condition of fuch licenfe was, they fhould be returned whenever the public authori- ties required." Felt : Coll. Am. Stat. Affoc., I., 206-7.
Thefe orders of the Council began as foon as the negroes were fent to the Ifland, the firft one we have
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found bearing date June 30th, 1779, by which Mr. Jofhua Brackett was to have a Negro Boy "fuch as he may choofe," etc. Mafs. Archives, Vol. 175, 374. See alfo fimilar order for three Negro Boys to be delivered to Hon. Henry Gardner, July 5, 1779. Ibid., 385.
Moft of them, however, muft have remained at Caftle Ifland, as appears from a return of the negroes there, October 12th, 1779. It is a fingular circum- ftance that fuch a return fhould be made, apparently to the Legiflature, with a brief and touching report, from John Hancock-one of the moft interefting documents connected with this fubject. The original, from which we copy, is in the Mass. Archives, Vol. 142, 170. The portions which are in italics are in the autograph of Hancock.
BOSTON, Oct. 12, 1779. A Return of ye Negroes at Caftle Ifland, Viz. :
Negro Men.
I. ANTHONY. 9. JACK.
2. PARTRICK. 10. GYE.
3. PADDE. II. JUNE.
4. ISAAC.
12. RHODICK.
5. QUASH.
13. JACK.
6. BOBB.
14. FULLER.
7. ANTHONEY
15. LEWIS.
8. ADAM.
The above men are ftout fellows.
Negro Boys.
No. I. SMART. 2. RICHARD.
Boys very Small.
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Negro Woomen.
Negro Girls.
No. I. KITTEY.
No. I. LYSETT.
2. LucY.
2. SALLY.
3. MILLEY.
3. MERCY.
4. LANDER.
Pretty large.
Rather ftout.
Gentlemen,
The Scituation of thefe Negroes is pitiable with respect to Cloathing.
I am, Gent.
Your very hum. Serv. John Hancock.1
O&t. 12, 1779.
On the 15th of November, 1779, a petition was read in the Council, from Ifaac Smith, John Codman, and William Smith, in behalf of William Vereen and others, of the State of South Carolina, then in Bofton, praying that a number of Negroes which were taken from them by a Britifh privateer, and retaken by two armed veffels belonging to Maffachufetts, might be delivered to them. The Council, upon hearing the petition, ordered "that Mofes Gill, Efq., with fuch as the Honorable Houfe fhall join, be a Committee to take into confideration this petition, and report what may be proper to be done thereon." The refolution was immediately fent to the Houfe, who concurred, and joined Capt. Williams of Salem, and Mr. Davis of Bofton, for the Committee.
On the 17th of November, another petition was prefented in Council, from John Winthrop, "pray-
1 John Hancock had been appointed " Captain of the Caftle and Fort on Governor's Ifland," on the 6th of October, 1779. Refolves, CLXXVIII, P. III. Compare Journal, PP. 54, 60.
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ing that certain negroes, who were brought into this State by the Hazard and Tyrannicide, may be delivered to him." This petition was alfo committed to the " committee appointed on the petition of Ifaac Smith and others," by a concurrent vote of both Houfes.
On the 18th of November, "Jabez Fifher, Efq., brought down a report of the Committee of both Houfes on the petition of Ifaac Smith, being by way of refolve, directing the Board of War to deliver fo many of the negroes therein mentioned, as are now alive. Paffed in Council, and fent down for concur- rence." The order of the Houfe is, " Read and con- curred, as taken into a new draught." Sent up for concurrence."
It is printed among the refolves of November, 1779.
" XXXI. Refolve relinquifhing this State's claim to a number of Negroes, paffed November 18, 1779.
" Whereas a number of negroes were re-captured and brought into this State by the armed veffels Hazard and Tyrannicide, and have fince been fupported at the expenfe of this State, and as the original owners of faid Negroes now apply for them :
" Therefore Refolved, That this Court hereby relinquifh and give up any claim they may have upon the faid owners for re-capturing faid negroes : Provided they pay to the Board of War of this State the ex- pence that has arifen for the fupport and cloathing of the Negroes aforefaid." Refolves, p. 131.1
The Maffachufetts act of April 12, 1780, more effectually providing for the fecurity, fupport, and exchange of prifoners of war brought into the State,
1 The original refolve is in Mafs. Archives, Vol. 142, 29, and is en- dorfed " Negroes captured in the fhip Victoria," and " Entered page 454."
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was paffed in accordance with the Refolutions of Congrefs, adopted January 13th, 1780. Laws, 1780, Chap. v., pp. 283, 4. It declares with reference to " all Prifoners of War, whether captured by the Army or Navy of the United States, or armed Ships or Veffels of any of the United States, or by the Subjects, Troops, Ships, or Veffels of War of this State, and brought into the fame, or caft on fhore by fhipwreck on the coaft thereof . . .. , all fuch prifoners, fo brought in or caft on fhore (including Indians, Ne- groes, and Molatoes) be treated in all refpects as prifoners of war to the United States, any law or re- folve of this Court to the contrary notwithftanding." A previous law of 1777, repealed by this act, con- tained no fpecial provifion concerning this clafs of captures. Laws, 1777, Chap. xxxV., p. 114.
On Friday, the 23d of January, 1784, Governor Hancock fent a meffage to the Legiflature, tranfmit- ting papers received during the recefs from October 28th, 1783, to January 21ft, 1784, " among which (he fays) is one from his Excellency the Governor of South Carolina, refpecting the detention of fome Negroes here, belonging to the fubjects of that State. I have communicated it to the Judges of the Supreme Judicial Court-their obfervations upon it are with the Papers. I have made no reply to the letter, judging it beft to have your decifion upon it." Journal H. of R., Vol. IV., pp. 308, 9. The Secretary, in communicating the meffage to the Houfe, faid he had laid the papers before the Senate, with his Ex- cellency's requeft to fend them to the Houfe. Ibid., P. 310.
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On the fame day, in the Senate, the meffage was read with accompanying papers, and referred to a joint committee of both Houfes. Senate Journal, IV., 277. Houfe Journal, IV., 311.
On the 23d of March following, a report of the committee, " by way of order," was read and accepted in the Senate, and concurred in by the Houfe. Senate Journal, IV., 441. In the Houfe, "The Hon. Mr. Warner brought down the report of the Committee on Governor Gerrard's1 letter, being an Order requefting his Excellency the Governor to tranfmit a copy of the opinions of the Judges of the Supreme Judicial Court on the cafe complained of, for the information of the faid Governor Gerrard." House Journal, IV., 496. The order is printed among the Refolves, March, 1784.
"CLXXI. Order requefting the Governor to write to Governor Guerard of South Carolina, inclofing the letter of the Judges of the Supreme Judicial Court, March 23d, 1784.
" Ordered, that his Excellency the Governor be re- quefted to write to Excellency Benjamin Guerard, Governor of South Carolina, inclofing for the informa- tion of Governor Guerard, the letter of the Judges of the Supreme Judicial Court of this Commonwealth, with the copy in the faid letter referred to, upon the fubject of Governor Guerard's letter, dated the fixth October, 1783." p. 141.
1 Benjamin Guerard was Governor of the State of South Carolina from 1783 to 1785.
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Slavery in Mafachufetts.
We have made diligent efforts to find the papers referred to among the files preferved in the State- Houfe at Bofton, but without fuccefs. We have alfo endeavored to procure them from the Archives of the State of South Carolina, with no more fatisfactory refult. Fortunately, however, we have been favored with the following extracts and memorandum, which were made by Mr. Bancroft at Columbia, S. C., feveral years ago.
From Mr. Bancroft's MSS., America, 1783, Vol. II.
GOVERNOR GUERARD TO GOVERNOR HANCOCK, 6th October, 1783.
EXTRACT. " That fuch adoption is favoring rather of the Tyranny of Great Britain which occafioned her the lofs of thefe States-that no act of British Tyranny could exceed the encouraging the negroes from the State owning them to defert their owners to be emancipated-that it feems arbitrary and domination -affuming for the Judicial Department of any one State, to prevent a reftoration voted by the Legifla- ture and ordained by Congrefs. That the liberation of our negroes difclofed a fpecimen of Puritanifm I fhould not have expected from gentlemen of my Pro- feffion."
MEMORANDUM. " He had demanded fugitives, carried off by the Britifh, captured by the North, and not given up by the interference of the Judiciary." "Governor Hancock referred the fubject to the Judges."
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JUDGES CUSHING AND SARGENT TO GOVERNOR HANCOCK, Bofton, Dec. 20, 1783.
EXTRACT. "How this determination is an attack upon the fpirit, freedom, dignity, independence, and fovereignty of South Carolina, we are unable to con- ceive. That this has any connection with, or relation to Puritanifm, we believe is above yr Excellency's comprehenfion as it is above ours. We fhould be fincerely forry to do anything inconfiftent with the Union of the States, which is and muft continue to be the bafis of our Liberties and Independence; on the contrary we with it may be ftrengthened, confirmed, and endure for ever."
Whether Governor Hancock recognized in the fubjects of this correfpondence any of his old Caftle Ifland acquaintances, does not appear; but we enter- tain no doubt that they were the fame, or a part of the fame negroes whofe " pitiable" condition "with refpect to cloathing," he had reported to the authorities in October, 1779. Why or how it happened that any of them were ftill within the jurifdiction of Maffachufetts, we cannot explain. The exigencies of the war in South Carolina, which was threatened or invaded and overrun during the greater part of the intervening period (1779-83), may have prevented fome of the owners from profecuting promptly their intention to reclaim their flaves or returning with them to that State. The flaves themfelves may have become familiar with their new homes, and willing or defirous to remain with their new mafters in the various towns
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Slavery in Mafachufetts.
to which they had been fcattered, and where they had . been permitted to live under the orders of Council, and their new mafters may have become warmly in- terefted in the defire to keep them. Under fuch cir- cumftances the authorities may have found it difficult to obtain a compliance with the agreement to return them when called for, without enforcing the reclama- tion in the courts of law. Add to all this, the dif- pofition of fome of the Supreme Court judges " to fubftitute an unwritten higher law, interpreted by individual confcience, for the law of the land and the decrees of human tribunals"-and we fhall not be fur- prifed at the refult indicated in thefe imperfect me- morials of the proceedings in 1783, '84.
We may expect from future refearches in Maffa- chufetts more light on this as well as other points indicated in thefe Notes ; and we truft efpecially that thefe deficiencies may "compel a difcovery" of the opinions of the Judges. They would furnifh an ex- tremely important illuftration of the ftate and progrefs of anti-flavery ideas in 1783, bearing directly on the conftruction of the Conftitution of 1780, which we have ftill to difcufs. The only additional item we have found which may bear on this cafe is the following :
In the Supreme Judicial Court of the Common- wealth of Maffachufetts, Suffolk, 26th Auguft, 1783, the following named negroes were brought up on habeas corpus and difcharged, the Court declaring the mittimus infufficient to hold them.
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