USA > Massachusetts > Notes on the history of slavery in Massachusetts > Part 15
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Now there is no evidence of oppofition, either in the Convention or out of it. Not even a notice of this important revolution, in the newfpapers of the day or elfewhere, has rewarded our earneft and careful fearch. John Adams, the author of the Bill of Rights, was not in favor of immediate emancipation (see ante, p. IIO). The moft ftrenuous anti-flavery men were unconfcious of any fuch intention or refult for a long time afterward ; and the newfpapers continued to ad- vertife the fales of negroes as before. There is no- thing to fhow that fo great a change was contemplated or realized, and thofe who maintain it would have us believe that the people of Maffachufetts, like the Romans on another memorable occafion, fuddenly became quite another people.1
The addrefs of the Convention, on fubmitting the refult of their labors to their conftituents, makes no
1 " Ad primum nuntium cladis Pompeiana populus Romanus repente factus eft alius."
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allufion whatever to this fubject. No one can read it -fetting forth as it does the principal features of the new plan of government, the grounds and reafons upon which they had formed it, with their explana- tions of the principal parts of the fyftem-and retain the belief that they had confcioufly, deliberately, and intentionally adopted the firft claufe in the Declara- tion of Rights for the exprefs purpofe of abolifhing flavery in Maffachufetts. The fame Bill of Rights provided that "no part of the property of any indi- vidual, can, with juftice, be taken from him, or applied to public ufes, without his own confent, or that of the reprefentative body of the people," and, in another claufe, that " no fubject fhall be . .. deprived of his property but by the judgment of his peers, or the law of the land." Constitution, p. IO, II. Did the members of that Convention intend deliberately to diveft the recognized title to property of their fellow-citizens, amounting to not lefs than half a million of dollars, without a word of explanation of the high grounds of juftice or public policy on which they bafed their action ? If any further evidence is needed in this con- nection, it may be found in the fubfequent fuits, with the entire proceedings and arguments of counfel, by which the refult of virtual abolition was finally fecured ; as well as in the legiflative proceedings which followed -all utterly inconfiftent with the theory of a direct and intentional abolition by the Convention and People. Compare Washburn, in M. H. S. Coll., IV., iv., 333-346.
We have faid that earneft anti-flavery men at that time were not aware of the alleged intention of the
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Convention to abolifh flavery by the declaration in the Bill of Rights. We have previoufly referred to the earneft efforts of Deacon Colman, of Newbury, againft flavery as early as 1774-'75. A controverfy between him and his confervative minifter, as fhown in the Church Records from 1780 to 1785, demon- ftrates this fact. The minifter was the father of Theophilus Parfons, afterwards fo well known in the State of Maffachufetts as Chief Juftice-the " Giant of the Law." In the Deacon's Teftimony and De- claration, he fays :
"The flaves in this State have petitioned for Liberty and Freedom from Bondage, fince our Trou- bles began, in the moft importunate and humble man- ner ; yet they are not fet free in a general way.
Magiftrates, Minifters and common people have had a hand in this Iniquitous Trade .. . . Should you plead, Sir, the Law of the Land, or the practice of the people, as an excufe in your favour ; I anfwer, that neither the law of the land, nor the commonnefs of the people's practice in this affair, alters the nature of the Crime at all : for that which is Wrong in its own nature, can never be made right by any law or practice of men." Coffin's Newbury : 342-50.
This was written November 7th, 1780, after the eftablifhment of the new government, and months after the Convention had completed their work and fubmitted it to the people.
The records of the church at Byfield contain a long account of the controverfy between Mr. Parfons and his zealous anti-flavery deacon-neither of whom appears to have been aware that flavery, which was
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the fubject of their difpute, had been abolifhed, either " virtually " or otherwife.
As late as the 3d of November, 1783, the deacon, who had been Suspended from communion on account of the violence of his zeal against the institution, addreffed the brethren by a communication, in which he declared that they had fhut him out of their communion " for bearing Teftimony againft the deteftable practice of Slave keeping, and making merchandife of human people." He adds, "you can't but be fenfible the practice of Slave keeping is Reprobated, and Abhorr'd by the moft Godly people through this State," etc. All seem to be utterly ignorant of the abolition inten- tion of the firft claufe in the Declaration of Rights. See Coffin's Newbury : PP. 342 et seqq.
Let us turn again to the newfpapers. Have the advertifements, which provoked the indignation of Doctor Gordon in 1776, difappeared before the new Conftitution and the firft article of the Bill of Rights ? Let the following felections anfwer the query ! They are from papers publifhed during the continuance of the Convention, and the year following, until fix months after the new government went into operation.
From the Continental Journal, November 25, 1779.
" To be SOLD A likely NEGRO GIRL, 16 years of Age, for no fault, but want of employ."
From the fame, December 16th, 1779.
" To be SOLD, A Strong likely NEGRO GIRL," &c.
From the Independent Chronicle, March 9th, 1780.
" To be SOLD, for want of employment, an exceeding likely NEGRO GIRL, aged fixteen."
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From the fame, March 30th and April 6th, 1780.
" To be SOLD, very Cheap, for no other . Reafon than for want of Employ, an exceeding Active NEGRO BOY, aged fifteen. Alfo, a likely NEGRO GIRL, aged feventeen."
From the Continental Journal, Auguft 17, 1780. " To be SOLD, a likely NEGRO BOY."
From the fame, Auguft 24th and September 7th.
" To be SOLD or LETT, for a term of years, a ftrong, hearty, likely NEGRO GIRL."
From the fame, Oct. 19th and 26th, and Nov. 2d.
" To be SOLD, a likely NEGRO BOY, about eighteen years of Age, fit for to ferve a Gentleman, to tend horfes or to work in the Country."
From the fame, October 26th, 1780.
" To be SOLD, a likely NEGRO BOY, about 13 years old, well calculated to wait on a Gentleman. Inquire of the Printer."
" To be SOLD, a likely young Cow and CALF. Inquire of the Printer."
Independent Chronicle, Dec. 14th, 21ft, 28th, 1780.
" A NEGRO CHILD, Joon expected, of a good breed, may be owned by any Perfon inclining to take it, and Money with it."
Continental Journal, Dec. 21, 1780, and Jan. 4, 178I. " To be SOLD, a hearty, ftrong NEGRO WENCH, about 29 years of age, fit for town or country."
The terms of the following announcement indi- cate the fact that " notions of Freedom " were begin- ning to find their way into other heads befides thofe of mafters and miftreffes.
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From the Continental Journal, March 1, 1781.
" To be SOLD, an extraordinary likely NE- GRO WENCH, 17 years old, fhe can be warranted to be ftrong, healthy and good-natured, has no notion of Freedom, has been always ufed to a Farmer's Kitchen and dairy, and is not known to have any failing, but being with Child, which is the only caufe of her being fold." 1
This advertifement, which was repeated for two weeks after in the papers of the 8th and 15th March, muft clofe our quotations of this fort. If it was not the laft publifhed in Maffachufetts, it ought to have been ! It brings us in point of time to the period in which fuits growing out of the relations of mafter and flave were brought in the courts of law, which ulti- mately refulted in extending the Declaration in the Bill of Rights to enflaved Indians and Negroes- preaching deliverance to the captives, and fetting at liberty them that were bruifed-the virtual abolition of flavery.
No contemporaneous report appears to be extant, of the decifions by which the general queftion of the legality of flavery in Maffachufetts was determined. Chief-Juftice Parfons, in 1806, in the cafe fo fre- quently quoted before, ftated that, " in the firft action involving the right of the mafter, which came before
1 This reminds us of the period in Britifh hiftory when Ireland was the greateft mart for Englifh flaves. In thofe days, when any one had more children or fervants than he could keep, he took them to the ready market of Briftol, and there found Irifh merchants, ready to purchafe. Malmes- bury affirms, that it was no uncommon thing to behold young girls, ex- pofed to fale there, in a ftate of pregnancy, which raifed their value. Bridge's Jamaica : II., Notes, 455-6.
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the Supreme Judicial Court after the eftablifhment of the Conftitution, the judges declared that, by virtue of the firft article of the Declaration of Rights, flavery in this State was no more." Iv. Mafs. Reports, 128. The report does not ftate what cafe was here referred to, and there has been a confiderable difference of opinion among thofe who have referred to the fubject. The accounts are various and inconfiftent, agreeing only in one refpect, that a determination gradually grew up to confider flavery as abolished, notwithftanding the failure of every attempt to deftroy it by legifla- tion.
The cafe of Elizabeth Freeman, better known as " Mum Bet," has been ftated by fome as the turning- point of legal decifion ; in which Judge Theodore Sedgwick defended the flave, who was pronounced free. The biographer of Mr. Sedgwick in the New American Cyclopædia fays : "This, it is believed, was the firft fruit of the declaration in the Maffachu- fetts Bill of Rights that 'all men are born free and equal,' and led to the end of flavery in Maffachu- fetts."1
The Duke de la Rochefoucault Liancourt gives an account of the termination of flavery in Maffachu- fetts, which is the more interefting that it may have been derived from Mr. Sedgwick himfelf, with whom he was acquainted at Philadelphia, and whofe hofpi- tality he enjoyed in Maffachufetts. He fays : " In 1781, fome negroes, prompted by private fuggeftion,
1 A writer in the Edinburgh Review, for January, 1864, reprefents this cafe as having occurred in 1772, and the refult of the Maffachufetts Conftitution of 1780 !
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maintained that they were not flaves : they found ad- vocates, among whom was Mr. Sedgwick, now a mem- ber of the Senate of the United States ; and the caufe was carried before the Supreme Court. Their counfel pleaded, 1º. That no antecedent law had eftablifhed flavery, and that the laws which feemed to fuppofe it were the offspring of error in the legiflators, who had no authority to enact them :- 2º. That fuch laws, even if they had exifted, were annulled by the new Conftitution. They gained the caufe under both afpects : and the folution of this firft queftion that was brought forward fet the negroes entirely at liber- ty, and at the fame time precluded their pretended owners from all claim to indemnification, fince they were proved to have poffeffed and held them in flavery without any right. As there were only a few flaves in Maffachufetts, the decifion paffed without oppofition, and banifhed all further idea of flavery." Travels, etc., IL., 166, 212-13.
John Quincy Adams, in reply to a queftion put by John C. Spencer, ftated that "a note had been given for the price of a flave in 1787. This note was fued, and the Court ruled that the maker had received no confideration, as man could not be fold. From that time forward, flavery died in the Old Bay State." Nell's Colored Patriots, 59.
There is now, however, little room for doubt that the leading cafes were thofe concerning a flave named Quork Walker, belonging to Nathaniel Jennifon, a farmer of the town of Barre, in Worcefter County. The flave deferted his mafter, and was received and employed as a fervant by John Caldwell, a neighbor,
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alfo a farmer.1 The flave had been beaten and im- prifoned, and otherwife maltreated by his mafter, whether before or after his defertion, or both, does not appear. Out of thefe principal facts grew the feries of actions in the Courts which we are now briefly to fketch. Two of them were commenced in the Inferior Court of Common Pleas for the County of Worcefter, at the June Term in 1781. They were entitled, Nathaniel Jennifon vs. John and Seth Caldwell, and Quork Walker vs. Nathaniel Jennifon.
The firft was a fuit for damages for enticing away the flave from his mafter, etc., which refulted in a verdict againft the friends of the flave, and an affefs- ment of damages at twenty-five pounds (25l.) in law- · ful gold or filver, or bills of public credit equivalent thereto, and cofts of fuit at 2 in like money, in favor of the mafter. From this judgment the friends of the flave appealed.
The fecond was a fuit for damages for affault and beating, etc., which refulted in a verdict againft the mafter. The jury found that the faid Quork was a freeman, and not the proper negro flave of the defendant, and affeffed damages for the plaintiff in the fum of fifty pounds (50l.) in lawful gold or filver, or bills of public credit equivalent thereto. The cofts were taxed at 6. 1Is. 7d, like money. From this judgment the mafter appealed.
Both appeals came on at the next Term of the Su-
1 Jennifon's wife was a Caldwell, and he acquired poffeffion of this flave, in right of his wife, who owned him before marriage. It may be that this controverfy originated in fome family quarrel.
2 The amount of cofts is not ftated in the record .. 1
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perior Court, held at Worcefter on the third Tuefday (18th) of September, 1781, before Judges Sargent, Se- wall, and Sullivan.
In the firft cafe, Nathaniel Jennifon, Appt., vs. Quork Walker, the recorded refult was-" And now the Appellant being called comes into Court, but does not produce and give into Court attefted copies of the writ, Judgment, or of the Evidences filed in the In- ferior Court, as the law directs, wherefore it is order- ed that his default be recorded." Docket September Term, 1781, in Worcefter. Records, 1781, fol. 79. In his fubfequent attempts to procure a re-entry of this caufe, Jennifon grounded his petition to the Legifla- ture on the allegation that he had "confided in his Council to produce the papers from the Court of Common Pleas, which papers the faid Council failed to produce, by means whereof he became defaulted, and judgment was rendered againft him." Mafs. Refolves, 1782, p. 182.
Quork Walker, Compt., vs. Nathaniel Fennifon, ac- cordingly obtained an affirmation of the judgment. As recorded in the Superior Court, it is a " Judgment for gol. Gold or Silver, or Bills of public Credit of the new Emiffion equivalent 1 7-8th for one Silver Dollar. Damage and cofts taxed at gl. Ios. 7d. Exon. iffued Feb. 6th, 1782." The Legiflature granted a ftay of execution by their refolve of March 5th, 1782. Refolves, p. 182. The legiflative proceedings on this fubject will be noticed hereafter.
In the appeal of the fecond cafe, John Caldwell et al. Appts. vs. Nathaniel Jennifon, the Jury found " the Appellants not guilty in manner and form as the
.
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Appellee in his Declaration has alleged;" and they accordingly had Judgment for Cofts. Records, 1781, fol. 79, 80.
The array of counfel in this cafe was diftinguifhed, being, for the Appellants, Caleb Strong and Levi Lincoln ; and for the Appellee, Simeon Strong, John Sprague, and William Stearns. Mr. Wafhburn, in his paper on "the Extinction of Slavery in Maffa- chufetts," gives an interefting account of thefe fuits, and prints "the Substance" of Mr. Lincoln's brief, which is fo important as to provoke our fincere regret that he did not print it entire and without modifica- tion. M. H. S. Coll., Iv., iv., 340-44.
The refult of the civil actions encouraged the friends of the flave to proceed ftill further; and an indictment was found at the fame Term of the Court (September, 1781) againft the mafter " for affault and battery, and falfe imprifonment." It was not tried until nearly two years later, April Term, 1783, when the defendant was found guilty and fentenced to be fined 40s., pay cofts of profecution, and ftand com- mitted till fentence be performed. Records, 1783, fol. 85.
Dr. Belknap wrote and printed, in the year 1795, a notice of this trial, which we copy.
" In 1781, at the Court in Worcefter County, an indictment was found againft a white man for affault- ing, beating, and imprifoning a black. He was tried at the Supreme Judicial Court in 1783. His defence was, that the black was his flave, and that the beating, etc., was the neceffary reftraint and correction of the mafter. This was anfwered by citing the aforefaid
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claufe in the declaration of rights. The judges and jury were of opinion that he had no right to imprifon or beat the negro. He was found guilty and fined 40 fhillings. This decifion was a mortal wound to flavery in Maffachufetts." M. H. S. Coll., I., iv., 203.
When owners of flaves found that under the new régime they were to be held liable in damages for correction of their flaves, they were not flow to fee the neceffary confequences, and at once appealed to the Legiflature, if they approved the judgment of the Court, to releafe them from the ftatute obligations growing out of their relations under the law of flavery in Maffachufetts. Nor did their anxiety diminifh when fine and imprifonment for criminal breach of the peace were added to civil damages for the fame offence. Had the members of the Convention entertained the opinions which have fince been afcribed to them, there would have been no room left for doubtful conftruc- tion of general principles, for all the laws which fus- tained flavery would have been exprefsly repealed, by the very firft legiflatures under the Conftitution, in which many of the fame men were prefent. But the Legiflature confidered, hefitated, and did nothing. Their proceedings would feem to have been governed by caprice, if we did not recognize the difficulties under which they labored, and the various and conflicting elements which controlled them.
The firft movement in the Legiflature was made at about the fame time the fuits were begun at Wor- cefter. In the Houfe of Reprefentatives, on the 9th of June, 1781, it was "Ordered, that Mr. Lowell, Col. Afhley, and Mr. Robbins be a Committee with
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fuch as the honorable Senate fhall join, to confider a Remonftrance of a number of perfons owning negro Servants, and to report what may be proper to be done thereon." Mr. Lowell promptly declined to ferve on this committee, for the next entry is, " Mr. Lowell is excufed, and Dr. Dunfmore is put on in his room." Journal, Vol. II., p. 50. The order was fent up for concurrence, and we find on the fame day, in the Senate, a concurrence in the appointment of "Doct. Denfmore in the room of Mr. Lowell refigned, excufed by the Houfe." Journal, II., 24. On the 12th of June, the Senate refufed to concur in the " Order of the Houfe on the Remonftrance and peti- tion of Nathan Jennifon and others owning Negro Servants." Ibid., 28.
We have been unable to find this memorial, in which other flaveholders befides Jennifon joined, ap- parently with a remonftrance againft the very firft fteps in thofe proceedings whofe refults they had no difficulty in foretelling. In all the fubfequent applica- tions for legiflative relief, Jennifon appears alone.
In the Houfe of Reprefentatives, on the 28th of January, 1782, a petition was read from Nathaniel Jennifon, praying for leave to re-enter an appeal of an action againft Quock Walker, which had been de- faulted through the neglect of his counsel, at the Su- preme Judicial Court next to be holden at Worcefter. It was referred to Mr. Metcalf, Mr. Smead, and Mr. Chamberlain, who reported the fame day a refolve granting his prayer, which was read and accepted, and fent up for concurrence. Journal, Vol. II., 487, 492. The Senate, on the 14th of February, refufed to
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concur, Journal, Vol. II., 263, but on the 5th of March paffed a refolve directing, on the petition of Jennifon, that the petitioner ferve the adverfe party with an attefted copy of the Petition, and to fhow caufe. This refolve was concurred in by the Houfe. Ibid., 300. It is printed in the book of refolves, March, 1782, p. 182.
On the 18th of April, 1782, this matter came up again in the Senate, Jennifon having complied with the previous refolve; and his petition, together with the anfwer of Quock Walker, was read. It was then " ordered, that Ifrael Nichols, Efq., with fuch as the Houfe fhould join be a Committee to confider this Petition and the Anfwer, hear the parties and report." On the following day, the Houfe concurred and ap- pointed Meffrs. Feffenden and White upon the joint Committee. This committee of both Houfes prefented their report on the 29th of April, on which it was " Ordered that the Petition lie till fufficient evidence be produced that the petitioner loft his Law." Senate Fournal, II., 344, 363. House Journal, II., 676.
The next movement opens a wider view of the whole affair. In the Houfe of Reprefentatives, on the 18th of June, a new petition was prefented from Nathaniel Jennifon, " fetting forth that he was de- prived of ten Negro Servants by a judgment of the Supreme Judicial Court on the following claufe of the Conftitution, 'That all men are born free and equal,' and praying that if faid judgment is approved of, he may be freed from his obligations to fupport faid negroes." Journal, III., 99.
Jennifon's original memorial, of which the notice
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on the Journal is an abftract, is ftill preferved. He refpectfully " fhows that by the Bill of Rights pre- fixed to the Conftitution of Government, it is among other things declared 'that all men are born free and equal,'-which claufe in the faid Conftitution has been the Subject of much altercation and dispute-that the Judges of the Supreme Judicial Court have fo conftrued the fame as to deprive your memorialift of a great part of his pro- perty, to which he thought his title good, not only by ancient and eftablifhed ufage, but by the Laws of the Land. That your Memorialift having been poffeffed of Ten Negro Servants, moft of whom were born in his family, fome of them young and helplefs, others old and infirm, is now informed that by the determina- tion of the Supreme Judicial Court, the faid Claufe in the Bill of Rights is fo to be construed, as to operate to the total difcharge and manumifion of all Negro Servants whatfo- ever. What the true meaning of faid Claufe in the Conftitution is, your Memorialift will not undertake to fay, but it appears to him the operation thereof in manner aforementioned, is very different from what the People apprehended at the time the fame was established."
He argues that " they could not mean to offend the Southern States in fo capital a point with them, and thereby to endanger the Union, and what is more, they could not mean to eftablifh a doctrine repugnant and contradictory to the revealed word of God." He enforces the latter argument by abundant quotation from the 25th chapter of Leviticus; and concludes his memorial with an earneft appeal to the Legiflature, that if fervants are to be made free, their mafters may alfo be emancipated-regarding the ftatute obligation
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to provide for the freedmen whenever they fhould be in want, as a fpecies of flavery alfo inconfiftent with the Bill of Rights.
Jennifon's Memorial was at once "committed to Colonel Pope, Mr. Stow, and Dr. Manning." Journal, III., 99. We find no further direct trace of it, but, three days afterward, a bill was introduced into the Houfe, entitled "an Act repealing an Act entitled an Act relating to Molatto and Negro flaves; " which was read a firft time and referred to the next feffion of the General Court. Journal, III., 418. The act thus propofed to be repealed was the old Province Law of 1703, Chap. 2, whofe provifions in reftraint of emancipation, etc., we have previoufly noticed (ante, pp. 53-4); and whofe repeal would be in ac- cordance with the alternative propofition in the me- morial of Jennifon.
Whether they were ftimulated by the new views of the fubject in the Houfe, or "fufficient evidence had been produced" to fatisfy them that Jennifon had "loft his law," we cannot fay; but on the 3d of July, 1782, the Senate paffed another resolve, "on the petition of Nathaniel Jennison, permitting him to re-enter his appeal, etc., at the Supreme Judicial Court at Worcefter." They fent it down for concur- rence, but, this time, the Houfe refufed to concur. Senate Journal, III., 109.
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