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But it is further urged by gentlemen on the oppofite fide, " that the cafe now before the Convention is widely different from that between us and Great Britain,-that Great Britain affume a right to impofe taxes on us of which they pay no part themfelves,-that the more they lay upon us, the lefs they have to pay themfelves,-that hence there is to them a ftrong inducement to bear us down by exor- bitant taxation ; whereas we, in taxing thefe people, tax ourfelves at the fame time." But who, Mr. Prefident, perceives not the futility and deceit of this argument? If we are to tax them, not as members of our community, but as receiving particular benefits from our laws, what fecurity can they have that we fhall not multiply taxes upon them in proportion to the value which our caprice or covetoufnefs may fet upon thefe fuppofed benefits. And whether we tax ourfelves at the fame time that we tax them, or not, is wholly immaterial : They are
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to be taxed on quite a different footing from that on which we are taxed ourfelves ; yea, as perfons who do not belong to our community, and the more we lay upon them, the lefs we fhall certainly have to pay ourfelves.
But it is ftill further urged by gentlemen on the other fide, " that thefe perfons are foreigners, and therefore not intitled to a voice in legiflation."
But how does this appear, Mr. Prefident ? What, unlefs it be their color, conftitutes them foreigners ? Are they not Americans? Were they not (moft of them at leaft) born in this country ? . Is it not a fact, that thofe who are not natives of America, were forced here by us, contrary, not only to their own wills, but to every principle of juftice and humanity? I wifh, Sir, thefe gentlemen would tell us what they mean by foreigners. Do they mean by it, fuch perfons, whofe an- ceftors came from fome other country? If fo, who of us is not a foreigner? Or do they mean to include under the denomination of foreigners, all thofe who are not born in this State, how long foever they may have lived among us, whatever property they may have ac- quired, whatever connexions they may have formed, or however they may have been incorporated with us by our prefent laws and conftitu- tion? Thefe people, Sir, by our prefent conftitution, are intitled to the fame privileges with any of their fellow-fubjects ; and by what authority we are now to wreft thefe rights and privileges from them, I cannot conceive, unlefs by dint of mere power. And I hope, Sir, that right, as founded in mere power, is not to receive a fanction from our confti- tution.
But there is one argument more which has been urged by gentle- men on the oppofite fide, as being of great weight and importance, which is this, " That by erafing this claufe out of the conftitution, we fhall greatly offend and alarm the Southern States." Should this be the cafe, Sir, it would be furprifing indeed ! But can it be fuppofed, Mr. Prefident, that any of the fifter States will be offended with us, becaufe we don't fee fit to do that which they themfelves have not done? Nay, more, will they be offended or alarmed that we do not violate thofe effential rights of human nature which they have taken the moft effectual care to eftablifh and fecure? It will not bear a fuppofition ; the argu- ment, Sir, is moft ridiculous and abfurd.
In fine, Sir, I hope we fhall not be fo inconfiftent with ourfelves,
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fo deftitute of all regard to common juftice and the natural rights of men, as to fuffer this form of conftitution to go abroad with this exceptionable claufe ; I hope the motion will obtain, and the claufe be reprobated by the Convention. But fhould this not be the cafe, fhould it eventually appear that there is fo great a want of virtue within thefe walls, I ftill hope there will be found among the people at large, virtue enough to trample under foot a form of government which thus faps the foundation of civil liberty, and tramples on the rights of men.
We have already intimated that thefe liberal and enlightened views did not prevail. On the contrary, the "Conftitution and Form of Government for the State of Maffachufetts Bay, agreed upon by the Convention of faid State, February 28, 1778, to be laid before the feveral towns and Plantations in faid State, for their Approbation or Difapprobation," has the following article:
"V. Every male inhabitant of any town in this State, being free, and twenty-one years of age, except- ing Negroes, Indians and molattoes, fhall be intitled to vote for a Reprefentative or Reprefentatives, as the cafe may be. . . .. . ," etc. 1
This not only excludes Negroes, Indians, and Molattoes from the chief right of citizenfhip, but alfo recognizes the exiftence of flavery in the State; and although it was rejected by an overwhelming vote, we have feen no evidence that this feature of the inftru- ment elicited fuch oppofition as might be expected in a community already prepared for negro emancipa- tion and enfranchifement. In the famous Effex Refult, the ableft document on the fubject now to be found-
1 The remainder of the fection relates to refidence and property quali- fications, etc.
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an elaborate report, written by Theophilus Parfons, of a Committee appointed by the Ipfwich Convention for the exprefs purpofe of ftating the non-conformity of this Conftitution to the true principles of govern- ment applicable to the territory of the Maffachufetts Bay-the fifth article is not referred to; and the exiftence of flavery, although earneftly deprecated, is clearly recognized, as well as the impracticability of immediate emancipation.
" The opinions and confent of the majority muft be collected from perfons, delegated by every freeman of the State for that purpofe. Every freeman who hath fufficient difcretion fhould have a voice in the election of his legiflators. . . . All the members of the State are qualified to make the election, unlefs they have not fufficient difcretion, or are fo fituated as to have no wills of their own. Perfons not twenty-one years old are deemed of the former clafs. . . . Wo- men alfo. . . . Slaves are of the latter clafs and have no wills. But are flaves members of a free govern- ment? We feel the abfurdity, and would to God, the fituation of America and the tempers of its in- habitants were fuch, that the flaveholder could not be found in the land." Refult of the Convention, etc., PP. 28, 29.
Dr. Gordon continued his zealous championfhip of the colored races, and in one of his letters on the propofed Conftitution 1 attacked this Fifth Article in a moft pungent ftyle of oppofition. Gordon's rela-
1 Letter No. II., to the Freemen of the Maffachufetts Bay, dated Rox- bury, April 2d, 1778, publifhed in the Continental Journal, April 9th, 1778.
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tions with the Legiflature had been moft intimate, as Chaplain to both Houfes, and he well knew how reluctantly the partifans of flavery were giving ground. We quote the paffages referred to :
" The complexion of the 5th Article is blacker than that of any African ; and if not altered, will be an everlafting reproach upon the prefent inhabitants ; and evidence to the world, that they mean their own rights only, and not thofe of mankind, in their cry for liberty. I remember not, that any State have been fo inconfiftent as to declare in their Conftitution, how- ever they may practice, that a freeman fhall not have the right of voting, merely becaufe of his being a Negro, an Indian, or a Molatto. I am forry the Convention did not take the hint when given in time, and avoid this public fcandal. It hath been argued, that were Negroes admitted to vote, the Southern States would be offended, and we fhould be foon crowded with them from thence. This would be to fuppofe the Southern States as weak as the argument. Will not the Negroes be as likely to crowd into the State, if they may be free, though they are debarred the right of voting? Will any be fo hardy as to fly in the face of all the declarations through the Conti- nent, and affert that the Negroes are made to be, and are fit for nothing but flaves ? Let fuch know, that in Jamaica, there are a number of free Negroes, who, refenting the tyranny of their mafters, freed themfelves from flavery, and continued in a ftate of war for feveral years, till at length King George the IId., by letters patent, empowered two gentlemen to conclude a treaty of peace and friendfhip with them, which was
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done on the ift of March, 1739, wherein they had their liberties confirmed. The exception of Indians is ftill more odious, their anceftors having been for- merly proprietors of the country. As to Molattoes they fhould have been defined. We fhould have been told, whether it intended the offspring of a white and Negro, or alfo of a white and Indian; and whether the immediate offspring alone, or any of their remote defcendants, fo that the blood of a white being inter- mixed with that of a Negro or Indian, it fhould be contaminated to the lateft pofterity, and cut off the male offspring to the hundredth generation, from the right of voting in an election.
"Gentlemen, blot out the exception, and thereby wipe off from the country in general, the difgrace that has been brought upon it by the Convention in par- ticular. If any are afraid, that the Bay inhabitants will, in confequence of it, at fome diftant period, be- come Negroes, Indians or Molattoes, let the General Court guard againft it by future Acts of State."
Dr. Gordon had already become very obnoxious to the members of the Legiflature, and was fummarily difmiffed from his office of Chaplain to both Houfes, April 4th-6th, 1778, in confequence of his Letter I, publifhed in the Independent Chronicle, April 2d, 1778, in which he was faid to have "rafhly reflected upon the General Court," and "mifreprefented their conduct," etc.
In Bofton, the fubject of flavery became the source of angry contention, which grew into public diforder and riots. Thomas Kench, in Col. Craft's Regiment of Artillery, then on Caftle Ifland, had applied to the
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Legiflature for leave to raife a detachment of negroes for military fervice. This was on the third of April, 1778. On the feventh of the fame month he addrefs- ed a fecond letter to the Council, as follows :
" The letter I wrote before I heard of the difturb- ance with Col. Seares, Mr. Spear, and a number of other gentlemen, concerning the freedom of negroes, in Congrefs Street. It is a pity that riots should be committed on the occafion, as it is juftifiable that ne- groes fhould have their freedom, and none amongft us be held as flaves, as freedom and liberty is the grand controverfy that we are contending for; and I truft, under the fmiles of Divine Providence we fhall obtain it, if all our minds can but be united; and putting the negroes into the fervice will prevent much uneafinefs, and give more fatisfaction to thofe that are offended at the thoughts of their fervants being free.
" I will not enlarge, for fear I fhould give offence ; but fubfcribe myfelf," &c. Mafs. Arch., Vol. 199, 80, 84.
The propofed Conftitution failed to pafs the ordeal of the popular judgment, fo far as an opinion could be gathered from the very partial returns made of the votes. A hundred and twenty towns neglected to exprefs any opinion at all; and but twelve thoufand perfons, out of the whole State, went to the polls to anfwer in any way. Two-fixths of them, however, voted in the negative. Adams's Works : IV., 214. Thus the Conftitution was rejected, negro claufe and all fharing the fame fate. We have no means of as- certaining the exact ftate of parties on this fubject ; but there can be no doubt that there was a wide dif- ference of opinions among the people.
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From the proceedings of the town of Bofton, it does not appear that the citizens of that place objected to the negro exclufion, although they were unanimous againft the conftitution. In Cambridge it was voted down unanimoufly, all the voters prefent being Free- men, more than 21 years of age, and neither "a NE- GRO, INDIAN or MOLATTO." Independent Chronicle : Fune 4, 1778. .
On the contrary, the town of Dartmouth notes the inconfiftency of excluding the negroes, &c., and favors their equal recognition, but at the fame time affures the public that there is no Negro, Indian or Molatto among their voters. Continental Journal, June, 1778.
It is not by any means well afcertained at what period, if ever, the negro was placed on the footing of political equality with the white man in Maffachu- setts. Public opinion has been juftly characterized as a power often quite as ftrong as the law itfelf. At once the great Ruler, Lawgiver, and Judge of the Anglo-Saxon race, it has held its throne and feat of judgment nowhere more firmly than in Maffachu- fetts. The flave was "emancipated by the force of public opinion ;" and the fame authority, without the abfolute declaration and forms of law, continued to exclude the negro from actual practical equality of civil and political as well as focial rights.
A "petition of feveral poor negroes and mulat- toes," who were inhabitants of the town of Dart- mouth, dated at that place on the 10th of February, 1780, shows the condition they were in at that time. They humbly reprefent :
" That we being chiefly of the African extract, and
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by reafon of long bondage and hard flavery, we have been deprived of enjoying the profits of our labor or the advantage of inheriting eftates from our parents, as our neighbors the white people do, having fome of us not long enjoyed our own freedom ; yet of late, contrary to the invariable cuftom and practice of the country, we have been, and now are, taxed both in our polls and that fmall pittance of eftate which, through much hard labor and induftry, we have got together to fuftain ourfelves and families withall. We apprehend it, therefore, to be hard ufage, and will doubtlefs (if continued) reduce us to a ftate of beg- gary, whereby we fhall become a burthen to others, if not timely prevented by the interpofition of your juftice and power.
"Your petitioners further fhow, that we appre- hend ourfelves to be aggrieved, in that, while we are not allowed the privilege of freemen of the State, having no vote or influence in the election of those that tax us, yet many of our color (as is well known) have cheerfully entered the field of battle in the defence of the common caufe, and that (as we conceive) againft a fimilar exertion of power (in regard to taxation), too well known to need a recital in this place.
"We moft humbly request, therefore, that you would take our unhappy cafe into your ferious con- fideration, and, in your wifdom and power, grant us relief from taxation, while under our prefent depreffed circumftances," &c.
This petition was addreffed "to the Honorable Council and Houfe of Reprefentatives, in General Court affembled, for the State of Maffachufetts Bay,
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in New England." The lofs or imperfections of the journals of this period prevent us from knowing what, if any, action was had on this petition, but a memo- randum in the handwriting of the leading petitioner, on the copy from which the above was taken, tells the story :
"This is the copy of the petition which we did deliver unto the Honorable Council and Houfe, for relief from taxation in the days of our diftrefs. But we received none.
JOHN CUFFE."
Another copy of the petition was found, with the date, "January 22d, 1781," not figned, by which it would appear that they intended to renew their appli- cation to the government for relief.
The records of the town of Dartmouth alfo fhow that thefe colored inhabitants refifted the payment of taxes, and the 22d of April, 1781, they applied to the felectmen of the town, "to put a ftroke in their next warrant for calling a town-meeting, fo that it may legally be laid before faid town, by way of vote, to know the mind of faid town, whether all free negroes and mulattoes Shall have the fame privileges in this faid town of Dartmouth as the white people have, refpecting places of profit, choofing of officers, and the like, together with all other privileges in all cafes that fhall or may happen or be brought in this our faid Town of Dartmouth." Nell's Colored Patriots of the Revolution, pp. 87-90.
It has been ftated that thefe proceedings refulted in eftablifhing the right of the colored man to the elective franchife in Maffachufetts, and that a law was enacted by the legiflature granting him all the privi-
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leges belonging to other citizens. Ibid., pp. 90, 77. But we can find no evidence to corroborate this ftate- ment, which is alfo entirely inconfiftent with fubfe- quent legiflation.
As late as 1795, the political ftatus of the negro in Maffachufetts was by no means definitely determined. Dr. Belknap gave, as the refult of his inquiries on the fubject, the ftatement that they were "equally under the protection of the laws as other people. Some gentlemen (fays he) whom I have confulted, are of opinion, that they cannot elect, nor be elected, to the offices of government; others are of a different opin- ion." Mr. Thomas Pemberton was one of the per- fons referred to by Dr. Belknap, and in his letter of March 12, 1795, fays expreffly that "the qualifica- tions required by the Maffachufetts Conftitution pre- vents the people of colour from their being electors or elected to any public office."
Dr. Belknap continues, "For my own part, I fee nothing in the conftitution which difqualifies them either from electing or being elected, if they have the other qualifications required ; which may be obtained by blacks as well as by whites. Some of them cer- tainly do vote in the choice of officers for the ftate and federal governments, and no perfon has appeared to conteft their right. Inftances of the election of a black to any publick office are very rare. I knew of but one, and he was a town-clerk in one of our country towns. He was a man of good fenfe and morals, and had a fchool education. If I remember right, one of his parents was black and the other either a white or mulatto. He is now dead." M. H. S. Coll., I., iv., 208.
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The queftion muft have been regarded as of little practical importance, for the relative number of ne- groes was fmall; and of thofe all but a very infignifi- cant fraction were excluded by the property qualifica- tion. Had it been regarded with intereft enough to call for an authoritative decifion, there is little room for doubt what it would have been.
IX.
WE come now to the Conftitution of 1780, the inftrument by which it is alleged that flavery was abolifhed in Maffachufetts. In the illuftration of our fubject, its hiftory is very important, and demands careful and accurate criticism.
After the failure of the attempt in 1778, a conven- tion of delegates chofen for the purpofe was decided upon to form a conftitution of government. They were elected in the fummer of 1779, and met at Cam- bridge on the Ift of September of that year. On the 3d they refolved to prepare a Declaration of Rights of the people of the Maffachufetts Bay, and alfo to proceed to the framing a new Conftitution of Govern- ment. On the next day, Sept. 4th, a Committee of thirty perfons was chofen to prepare a Declaration of Rights and the form of a Conftitution. On the 6th September, the Convention adjourned until the 28th October, for the purpofe of giving the Committee time to prepare a report. Immediately upon the adjournment, the General Committee met in Bofton, and delegated the duty of preparing a draught of a
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Conftitution to a fub-committee of three members- James Bowdoin, Samuel Adams, and John Adams. By this fub-committee the tafk was committed to John Adams, who performed it. The preparation of a Declaration of Rights was intrufted by the Gen- eral Committee to Mr. Adams alone. His own ftatement with regard to it is, "The Declaration of Rights was drawn by John Adams; but the article refpecting religion, was referred to fome of the clergy or older and graver perfons than myfelf, who would be more likely to hit the tafte of the public." MS. Letter of John Adams to William D. Williamfon, 25 February, 1812, quoted in Williamfon's Maine, II, 483, note. Adams's Works : IV., 215-16.
The firft Article of the Declaration of Rights, as reported to the Convention, was as follows :
"ART. I. All men are born equally free and in- dependent, and have certain natural, effential and un- alienable rights : among which may be reckoned the right of enjoying and defending their lives and liber- ties ; that of acquiring, poffeffing, and protecting their property ; in fine; that of feeking and obtaining their fafety and happinefs." Report, p. 7.
This article, as reported, met with no oppofition, elicited little or no discuffion, and was accepted with but flight and unimportant verbal amendments. Fournal, p. 37. It ftands thus in the Conftitution of Maffachufetts :
"ART. I. All men are born free and equal, and have certain natural, effential, and unalienable rights ; among which may be reckoned the right of enjoying, and defending their lives and liberties ; that of ac-
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quiring, poffeffing, and protecting property ; in fine, that of feeking and obtaining their fafety and happi- nefs." Constitution, p. 7.
Its language is nearly the fame with that of the firft article of the Bill of Rights of Virginia, written by George Mafon, and adopted by her Convention on the 12th of June, 1776, when "Virginia pro- claimed the Rights of Man." Bancroft, VIII., 381. The fame language, common in thofe days, became more familiar in the Declaration of Independence, on the 4th of July, 1776, and in the Pennfylvania De- claration of Rights, July 15th-September 28th, 1776 ; and this affirmation of natural and even unalienable rights had long ceafed to be a novelty before Maffa- chufetts repeated it in her Convention of 1779-80. The Conftitution was fubmitted to the people in March, adopted by a popular vote in June, and the new government went into operation on the 25th of October, 1780.
It is a remarkable ftatement for a Maffachufetts writer to make, but it is undoubtedly true, that " much intereft has been felt of late years to know when, and under what circumftances, flavery ceafed to exift in Maffachufetts." M. H. S. Coll., Iv., iv., 333. The fact that Daniel Webfter had not been able a few years before his death to determine this queftion fatis- factorily, is pretty good evidence that it was doubtful; and will go far to juftify a good degree of caution in its decifion. In 1836, Chief-Juftice Shaw made an interefting ftatement on this point:
" How or by what act particularly, flavery was abolifhed in Maffachufetts, whether by the adoption
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of the opinion in Somerfet's cafe, as a declaration and modification of the common law, or by the Declaration of Independence, or by the Conftitution of 1780, it is not now very eafy to determine, and it is rather a matter of curiofity than utility ; it being agreed on all hands, that if not abolifhed before, it was fo by the Declaration of Rights." Commonwealth v. Aves, 18 Pickering, 209.
Few perfons can now be found hardy enough to date the abolition of flavery in Maffachufetts from Lord Mansfield's decifion in the Somerfet cafe, or the Declaration of Independence. But the received opinion in Maffachufetts is, that the firft article of the Declaration of Rights was not fimply the decla- ration of an abftract principle or dogma, which might be wrought out into a practical fyftem by fubfequent legiflation, but was intended to have the active force and conclufive authority of law ; to diveft the title of the mafter, to break the bonds of the flave, to annul the condition of fervitude, and to emancipate and fet free by its own force and efficacy, without awaiting the enforcement of its principles by judicial decifion. Compare 7 Gray, 478. 5 Leigh, 623.
We have made diligent inquiry, fearch, and ex- amination, without difcovering the flighteft trace of pofitive contemporary evidence to fhow that this opinion is well founded. The family traditions which have defignated the elder John Lowell as the author of the Declaration, and affigned the intention to abolifh flavery as the exprefs motive for its origin, will not ftand the teft of hiftorical criticifm. The truth is, that the bold judicial conftruction by which
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it was afterwards made the inftrument of virtual aboli- tion, was only gradually reached and fuftained by public opinion-the Court having advanced many fteps fur- ther than was intended by the Convention or under- ftood by the people, in their decifion on this fubject. If it were poffible that fuch a purpofe could have been avowed in the Convention and wrought into their work, without oppofition, it certainly could not have paffed abfolutely without notice. Such a converfion would be too fudden to be genuine; and if we follow the facts in their natural chronological order, the actual refult will fall into its due place and pofition without force or violation of the truth of hiftory.
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