USA > Massachusetts > Notes on the history of slavery in Massachusetts > Part 2
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Slavery in Mafachufetts.
In the fecond printed edition, that of 1660, the law appears as follows, under the title
" BOND-SLAVERY.
TT is Ordered by this Court & Authority there- of; That there fhall never be any bond-flavery villenage or captivity amongft us, unles it be Lawfull captives, taken in juft warrs, [or fuch] as [/hall] will- ingly fell themfelves, or are fold to us, and fuch fhall have the liberties, & Chriftian ufuage, which the Law of God eftablifhed in Ifrael, Concerning fuch perfons, doth morally require, provided this exempts none from fervitude, who fhall be judged thereto by Authority. [1641.]" Mafs. Laws, Ed. 1660, p. 5.
The words italicized in brackets appear among the manufcript corrections of the copy which (former- ly the property of Mr. Secretary Rawfon, who was himfelf apparently the Editor of the volume) is now preferved in the Library of the American Antiquarian Society at Worcefter, in Maffachufetts. It is plain, however, that the printed text required correction, and-although no better authority can poffibly be de- manded than that of the Editor himfelf-it is confirmed by the subfequent edition of 1672, in which the fame error, having been repeated in the text, is made the occafion of a correction in the printed table of errata. There is a want of accuracy even in this correction it- felf; but the intention is fo obvious that it cannot be miftaken. Mafs. Laws, Ed. 1672, pp. 10, 170.
To prevent any poffible doubt which may ftill linger in the mind of any reader at the end of the demonftration through which we ourfelves firft arrived
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Notes on the History of
at this refult, we will add the following record-evi- dence afterwards difcovered-which it will puzzle the moft aftute critic to make "void and of none effect."
In May, 1670, on the laft day of the month, a committee was appointed by the General Court "to pervfe all our lawes now in force, to collect & drawe vp any literall errors or mifplacing of words or fen- tences therein, or any libertjes infringed, and to make a convenient table for the ready finding of all things therein, that fo they may be fitted ffor the preffe, & the fame to prefent to the next feffion of this Court, to be further confidered off & approved by the Court." Mafs. Records, IV., ii., 453.
At the following feffion of the Court, the com- mittee prefented their report accordingly, and on the 12th October, 1670, the following order was made :
"The Court, having pervfed & confidered of the returne of the comittee, to whom the revejw of the lawes was referred, &c., by the Generall Court in May laft, as to the litterall erratars, &c., do order that in
" Page 5, lj : 3, tit. Bondflauery, read 'or fuch as fhall willingly,' &c." Mafs. Records, IV., ii., 467.
As the circumftances under which all thefe laws and liberties were originally compofed and after long difcuffion, minute examination, and repeated revifions, finally fettled and eftablifhed, forbid the fuppofition that flavery came in an unbidden or unwelcome gueft -fo is it equally impoffible to admit that this altera- tion of the fpecial law of flavery by the omiffion of so important and fignificant a word could have been acci- dental or without motive.
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Slavery in Mafachufetts.
If under the original law the children of enflaved captives and ftrangers might poffibly have claimed exemption from that fervitude to which the recognized common law of nations affigned them from their birth ; this amendment, by ftriking out the word "ftrangers," removed the neceffity for alienage or foreign birth as a qualification for flavery, and took off the prohibition againft the children of flaves being " born into legal flavery in Maffachufetts."
It is true there is little probability that in thofe days the natural rights of thefe little heathen, born in a Chriftian land, would have been much regarded, or that the owners of flave parents would have had much difficulty in quieting the title by having the increafe of their chattels duly "judged" to fervitude by authoritie," in accordance with the civil law; ftill there might have been color for the claim to freedom, which this amendment effectually barred. And this was in accordance, too, with the law of Mofes-the children of flaves remained flaves, being the clafs defcribed as " born in the houfe."
This Maffachufetts law of flavery was not a regu- lation of the ftatus of indentured fervants. "Bond- flavery" was not the name of their fervice, neither is it placed among the " Liberties of Servants," but thofe of " Forreiners and Strangers." And in all the editions of the laws, this diftinction is maintained ; " Bond- flavery" being invariably a feparate title. White fer- vants for a term of years would hardly be defignated as ftrangers,1 and a careful ftudy of the whole fubject
1 John Cotton, in his letter to Cromwell, July 28, 1651, fays: " the Scots, whom God delivered into your hands at Dunbarre, and whereof
2
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Notes on the History of
juftifies at leaft the doubt whether the privileges of fervants belonged to flaves at all.
The law muft be interpreted in the light of con- temporaneous facts of hiftory. At the time it was made (1641), what had its authors to provide for ?
I. Indian flaves - their captives taken in war.
2. Negro flaves-their own importations of "ftrangers" obtained by purchafe or ex- change.
3. Criminals - condemned to flavery as a punifh- ment for offences.
In this light, and only in this light, is their legifla- tion intelligible and confiftent. It is very true that the code of which this law is a part "exhibits through- out the hand of the practifed lawyer, familiar with the principles and fecurities of Englifh Liberty ;" but who had ever heard, at that time, of the " common- law rights" of Indians and negroes, or anybody elfe but Englifhmen ?
Thus ftood the ftatute through the whole colonial period, and it was never expreffly repealed. Bafed on the Mofaic code, it is an abfolute recognition of flavery as a legitimate ftatus, and of the right of one man to fell himfelf as well as that of another man to buy him. It fanctions the flave-trade, and the per- petual bondage of Indians and negroes, their children and their children's children, and entitles Maffachu- fetts to precedence over any and all the other colonies
fundry were fent hither, we have been defirous (as we could) to make their yoke eafy. * * * They have not been fold for flaves to perpetuall fervitude, but for 6, or 7 or 8 yeares, as we do our owne." Hutchinfon's Coll., 235. He certainly did not mean " our owne " Indians and negroes.
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Slavery in Mafachufetts.
in fimilar legiflation. It anticipates by many years anything of the fort to be found in the ftatutes of Vir- ginia, or Maryland, or South Carolina, and nothing like it is to be found in the contemporary codes of her fifter colonies in New England. Compare Hildreth, I., 278.
Yet this very law has been gravely cited in a paper communicated to the Maffachufetts Hiftorical Society, and twice reprinted in its publications with- out challenge or correction, as an evidence that "fo far as it felt free to follow its own inclinations, un- controlled by the action of the mother country, Maffachufetts was hoftile to flavery as an inftitution." M. H. S. Coll., Iv., iv., 334. Proc., 1855-58, p. 189.
And with the ftatute before them, it has been per- fiftently afferted and repeated by all forts of authori- ties, hiftorical and legal, up to that of the Chief Juftice of the Supreme Court of the Commonwealth, that "flavery to a certain extent feems to have crept in ; not probably by force of any law, for none fuch is found or known to exift." Commonwealth vs. Aves, 18 Pickering, 208. Shaw, C. J.
The leading cafe in Maffachufetts is that of Win- chendon vs. Hatfield in error, IV Mafs. Reports, 123. It relates to the fettlement of a negro pauper who had been a flave as early as 1757, and paffed through the hands of nine feparate owners before 1775. From the ninth he abfconded, and enlifted in the Maffa- chufetts Army among the eight-months' men, at Cam- bridge, in the beginning of the Revolutionary War. His term of fervice had not expired when he was again fold, in July, 1776, to another citizen of Maffa-
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Notes on the History of
chufetts, with whom he lived about five weeks, when he enlifted into the three-years' fervice, and his laft owner received the whole of his bounty and part of his wages.
EDOM LONDON, for fuch was the name of this revolutionary patriot, in 1806 was "poor," and " had become chargeable" to the town in which he refided. That town magnanimoufly ftruggled through all the Courts, from the Justices Court up to the Supreme Court of the Commonwealth, to fhift the refponsibility for the maintenance and fupport of the old foldier from itfelf to one of the numerous other towns in which he had fojourned from time to time as the flave of his eleven mafters. The attempt was unfuccefsful ; but it is worthy of notice, as Chief Juftice Parfons, in the decifion on the appeal, fettled feveral very important points concerning the laws of flavery in Maffachufetts. He said :
" Slavery was introduced into this country [Maffa- chufetts] foon after its firft fettlement, and was tol- erated until the ratification of the prefent Conftitution [the Conftitution of 1780]. . The iffue of the female flave, according to the maxim of the Civil law, was the property of her mafter."
With regard to this latter point, Chief Juftice Dana, in directing a jury, in 1796, had ftated as the unanimous opinion of the Court, that a negro born in the State before the Conftitution of 1780, was born free, although born of a female flave.
Chief Juftice Parfons, however, candidly declared that "it is very certain that the general practice and common ufage had been oppofed to this opinion."
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Slavery in Mafachufetts.
Chief Juftice Parker, in 1816, cautioufly confirmed this view of the fubject by his predeceffor. Andover vs. Canton, 13 Mafs. Reports, 551-552.
" The practice was . . . to confider fuch iffue as flaves, and the property of the mafter of the parents, liable to be fold and transferred like other chattels, and as affets in the hands of executors and adminiftra- tors." He adds, "we think there is no doubt that, at any period of our hiftory, the iffue of a flave huf- band and a free wife would have been declared free." 1
"His children, if the iffue of a marriage with a flave, would, immediately on their birth, become the property of his mafter, or of the mafter of the female flave."
Notwithftanding all this, in Mr. Sumner's famous fpeech in the Senate, June 28, 1854, he boldly afferted that "in all her annals, no perfon was ever born a flave on the foil of Maffachufetts," and "if, in point of fact, the iffue of flaves was fometimes held in bondage, it was never by fanction of any ftatute-law of Colony or Commonwealth."
And recent writers of hiftory in Maffachufetts have affumed a fimilar lofty and pofitive tone on this fubject. Mr. Palfrey fays : " In fact, no perfon was ever born into legal flavery in Maffachufetts." Hift. N. E., II., 30, note. Neither Mr. Sumner nor Mr. Palfrey give any authorities for their ftatements be-
1 Kendall, who travelled through the northern parts of the United States in the years 1807 and 1808, referring to this fubject, fays : " While flavery was maintained in Maffachufetts, there was a particular temptation to negroes for taking Indian wives, the children of Indian women being acknowledged to be free." Travels, II., 179. See Hift. Coll. Efex Infti- tute, Vol. VII., p. 73. Cafe of Priscilla, &c., againft Simmons.
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Notes on the History of
yond the cafes in Mafachufetts Reports, IV., 128, 129; XVI., 73, and Cushing's Reports, x., 410, which are alfo referred to by Mr. Juftice Gray in a ftill more recent and authoritative publication. The diftinguifhed ability of this gentleman, fo long recognized and acknowledged at the bar in Maffachufetts, will do ample honor to the bench to which he is fo juftly advanced. We entertain the higheft refpect for his attainments, his judgment, and his critical fagacity ; but in this inftance we think he has fallen into a ferious error, which not even the great weight of his authority can eftablifh or perpetuate in hiftory.
In an elaborate hiftorical note to the cafe of Oliver vs. Sale, Quincy's Reports, 29, he fays :
" Previoufly to the adoption of the State Confti- tution in 1780, negro flavery exifted to fome extent, and negroes held as flaves might be fold, but all children of flaves were by law free."
So diftinct and pofitive an affertion fhould have been fortified by unequivocal authority. In this cafe Mr. Gray gives us two or three dozen feparate refer- ences. Thefe are numerous and conclufive enough as to the facts in the firft claufes of his ftatement- that negro flavery exifted in Maffachufetts, and that negro flaves might be fold ; but for the laft and moft important part of it, that all children of flaves were by law free,1 there is not an iota of evidence or author-
1 In the cafe of Newport vs. Billing, which Mr. Gray believes to have been "the lateft inftance of a verdict for the mafter," it was found by the highest court in Maffachufetts, on appeal from a fimilar decifion in the in- ferior court, " that the faid Amos [Newport] was not a freeman, as he alledged, but the proper flave of the faid Jofeph [Billing]. Records, 1768, fol. 284. As this feems to have been one of the fo-called " freedom
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Slavery in Mafachufetts.
ity in the entire array, excepting the opinion of the Court in 1796, already referred to.
This " unanimous opinion of the Court," in 1796, which has been fo often quoted to fuftain the reputa- tion of Maffachufetts for early and confiftent zeal againft flavery, will hardly fuffice to carry the weight affigned to it. In the firft place, the facts proved to the jury in the case itfelf were fet at naught by the Court in the ftatement of this opinion. We quote them, omitting the peculiar phrafeology by which they are difguifed in the report.
An action was brought by the inhabitants of Lit- tleton, to recover the expenfe of maintaining a negro, againft Tuttle, his former mafter. It was tried in Middlefex, October Term, 1796. The negro's name was Cato. His father, named Scipio, was a negro flave when Cato was born, the property of Nathan Chafe, an inhabitant of Littleton. Cato's mother, named Violet, was a negro in the fame condition, and the property of Jofeph Harwood. Scipio and Violet were lawfully married, and had iffue, Cato, born in Littleton, January 18th, 1773, a flave, the property of the faid Harwood, as the owner of his mother. Mafs. Reports, IV., 128, note.
But whatever may be inferred from thefe facts taken in connection with the "opinion " of the Court, in 1796, we afk the attention of the reader to another cafe a little later, before the fame tribunal. In the cafe of Perkins, Town Treafurer of Topsfield, vs. Emerson, tried in Effex, the Court held that a certain negro
cafes," it is to be regretted that Mr. Gray did not afcertain from the files whether " the faid Amos" was a native of Maffachufetts !
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Notes on the History of
girl born in the Province in Wenham in 1759, was a flave belonging to Emerfon from 1765 to 1776, when fhe was freed. This decifion was in November, 1799. Dane's Abridgment, II., 412. Thus it appears that the Supreme Judicial Court of Maffachufetts inftructed a jury in 1796, by an unanimous opinion, that a negro born in the State before the Conftitution of 1780, was born free, although born of a female flave. Three years later, the fame Court and the fame judges (three out of four),1 held a negro girl born in the prov- ince in 1759 to have been the lawful flave of a citi- zen of Maffachufetts from 1765 to 1776. In the latter cafe, too, the decifion of the Court was given on the queftion of law alone, as prefented upon an agreed ftatement of the facts. MS. Copy of Court Rec- ords.
A cafe in Connecticut prefents an illuftration of great importance. It is that of "a fugitive flave, and attempted refcue, in Hartford, 1703," of which an account is given in one of Mr. J. Hammond Trum- bull's admirable articles on fome of the Connecticut Statutes. Historical Notes, etc., No. VI.
"The case laid before the Honorable General Affembly in October, 1704," after a ftatement of facts, etc., proceeds with reafons for the return of the fugi- tive, fome of which we quote.
1 The judges prefent at thefe Terms refpectively were the following, viz. :
October Term, 1796, in Middlesex : Francis Dana, Chief Justice. Robert Treat Paine, Increafe Sumner, Nathan Cufhing, Thomas Dawes, jr., Justices.
November Term, 1799, in Efex : Francis Dana, Chief Justice. Robert Treat Paine, Theophilus Bradbury, Nathan Cufhing, Justices.
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Slavery in Mafachufetts.
" I. According to the laws and conftant practice of this colony and all other plantations, (as well as by the civil law) fuch perfons as are born of negro bond-women are themselves in like condition, that is, born in fervi- tude. Nor can there be any precedent in this government, or any of her Majesty's plantations, produced to the con- trary.1 And though the law of this colony doth not fay that fuch perfons as are born of negro women and fuppofed to be mulattoes, fhall be flaves, (which was needlefs, becaufe of the conftant practice by which they are held as fuch,) yet it faith expreffly that 'no man fhall put away or make free his negro or mulatto flave,' etc., which undeniably fhows and declares an approba- tion of fuch fervitude, and that mulattoes may be held as flaves within this government."
The value of this teftimony on the fubject is en- hanced by the character and pofition of the witnefs. He was Gurdon Saltonftall, born in Maffachufetts, the fon of a magiftrate, educated at Harvard College, and afterwards Governor of Connecticut,-"at that time the popular minifter of the New London church, and nearly as diftinguifhed at the bar as in the pulpit. The friend and confidential advifer of the governor (Winthrop), who was one of his parifhioners, his in- fluence was already felt in the Colonial Councils, and he was largely entrufted with the management of public affairs. In general fcholarfhip, and in the extent of his profeffional ftudies, both in divinity and law, he had probably no fuperior in the colony : as an advo-
1 Lay, in his tract " All Slave-Keepers Apoftates," p. 11., enumerating the hardfhips of the inftitution, fays, "Nor doth this fatisfy, but their children alfo are kept in flavery, ad infinitum ; "
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Notes on the History of
cate, according to the teftimony of his contemporaries, he had no equal." }. Hammond Trumbull's Historical Notes. Backus, II., 35. Trumbull's Connecticut, Vol. I. (1797), 417. Mr. Trumbull alfo mentions a queftion raifed in 1722, as to the ftatus of the children of Indian captive-flaves, in a memorial to the Legiflature, from which it is apparent that no doubt was enter- tained as to the legal flavery of children of negroes or imported Indians from beyond feas.
Ample evidence is given elfewhere in these notes. of the fact, that the children of flaves were actually held and taken to be flaves, the property of the owners of the mothers, liable to be fold and trans- ferred like other chattels and as affets in the hands of executors and adminiftrators.1 This fact comes out in many portions of this hiftory; there is no one thing more patent to the reader. The inftances are numerous, and it is needlefs to recapitulate them here; but it may be proper to refer to the facts that in the inftructions of the town of Leicefter to their representative in 1773, among the ways and means fuggefted for extinguifhing flavery, they propofed " that every negro child that fhall be born in faid government after the enacting fuch law fhould be free at the fame age that the children of white people are," and in the petition of the negro flaves for relief in
I " A bill of fale, or other formal inftrument, was not neceffary to transfer the property in a flave, which was a mere perfonal chattel, and might pafs, as other chattels, by delivery." Milford vs. Bellingham, 16 Mafs. Reports, 110. Governor Dudley's report to the Board of Trade on flaves and the flave-trade in Maffachufetts, etc., in 1708, ftated that " in Boston, there are 400 negro fervants, one half of whom were born here." Collections Amer. Stat. Affoc., I., 586.
Slavery in Mafachufetts. 27
1777 to the General Court of Maffachufetts, they humbly pray that " their children (who were born in this land of liberty) may not be held as flaves after they arrive at the age of twenty-one years." Mafs. Archives. Revolutionary Refolves, Vol. VII., p. 132.
The Articles of Confederation of the United Colonies of New England, 19th May, 1643, which commence with the famous recital of their object in coming into thofe parts of America, viz., " to ad- vaunce the Kingdome of our Lord Jefus Chrift, and to enjoy the liberties of the Gofpell in puritie with peace," practically recognize the lawful exiftence of flavery.
The fourth Article, which provides for the due adjuftment of the expenfe or "charge of all juft warrs whether offenfive or defenfive," concludes as fol- lows :
" And that according to their different charge of eich Jurifdiccon and plantacon, the whole advantage of the warr (if it pleafe God to blefs their Endeavours) whether it be in lands, goods, or PERSONS, fhall be proportionably devided among the faid Confederats." Hazard, II., 3. Plymouth Records, Ix., 4. The fame feature remained in the Conftitution of the Con- federacy to the end of its exiftence.1 See Ratification of 1672. Plymouth Records, x., 349.
The original of the Fugitive Slave Law provifion in the Federal Conftitution is to be traced to this
1 The agreement between Leifler of New York, and the Commiffioners of Maffachufetts, Plymouth, and Connecticut, May 1, 1690, provided that " all plunder and captives (if any happen) fhall be divided to ye officers and foldiers according to ye Cuftome of Warr." N. Y. Doc. Hift., II., 134, 157. Stoughton and Sewall were the Commiffioners for Maffachufetts.
-
28
Notes on the History of
Confederacy, in which Maffachufetts was the ruling colony. The Commiffioners of the United Colonies found occasion to complain to the Dutch Governor in New Netherlands, in 1646, of the fact that the Dutch agent at Hartford had harbored a fugitive Indian woman-flave, of whom they fay in their letter : " Such a fervant is parte of her mafter's eftate, and a more confiderable parte than a beaft." A provifion for the rendition of fugitives, etc., was afterwards made by treaty between the Dutch and the Englifh. Plymouth Colony Records, Ix., 6, 64, 190.
Hiftorians have generally fuppofed that the trans- actions in 1644-5, in which Thomas Keyfer and one James Smith, the latter a member of the church of Bofton, were implicated, "firft brought upon the colonies the guilt of participating in the traffic in African flaves." Bancroft, I., 173-4.
The account which we have given of the voyage of the firft colonial flave-fhip, the Defire, shows this to have been an error, and that which we fhall give of thefe tranfactions will expofe another of quite as much importance.
Hildreth, in whofe hiftory the curious and in- ftructive ftory of New England theocracy is narrated with scrupulous fidelity, gives fo clear an account of this bufinefs as to require little alteration, and we quote him with flight additions, and references to the authorities, which he does not give in detail.
This affair has been magnified by too precipitate an admiration into a proteft on the part of Maffachu- fetts againft flavery and the flave-trade. So far, how- ever, from any fuch proteft being made, the firft code
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Slavery in Mafachufetts.
of laws in Maffachufetts eftablifhed flavery, as we have fhown, and at the very birth of the foreign commerce of New England the African flave-trade became a regular bufinefs. The fhips which took cargoes of ftaves and fifh to Madeira and the Canaries were ac- cuftomed to touch on the coaft of Guinea to trade for negroes, who were carried generally to Barbadoes or the other Englifh Iflands in the Weft Indies, the de- mand for them at home being fmall.1 In the cafe referred to, inftead of buying negroes in the regular courfe of traffic, which, under the fundamental law of Maffachufetts already quoted, would have been per- fectly legal,2 the crew of a Bofton fhip joined with fome London veffels on the coaft, and, on pretence of fome quarrel with the natives, landed a " murderer "- the expreffive name of a fmall piece of cannon-at- tacked a negro village on Sunday, killed many of the inhabitants, and made a few prifoners, two of whom fell to the fhare of the Bofton fhip. In the courfe of a lawfuit between the mafter, mate, and owners, all this ftory came out, and one of the magiftrates pre- fented a petition to the General Court, in which he charged the mafter and mate with a threefold offence,
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