USA > Massachusetts > Notes on the history of slavery in Massachusetts > Part 8
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" 6. If a flave married a free woman, with the con- fent of his mafter, he was emancipated, for his mafter had fuffered him to contract a relation inconfiftent with a ftate of flavery ; 'hereby the mafter abandoned his right to him as a flave, as a minor child is emanci- pated from his father when he is married.' Ld. Ray- mond, 356;
" 7. A flave however could be fold, and in fome ftates be taken in execution for his mafter's debts ; but no evidence is found of fuch taking in execution in Maffachufetts ;
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" 8. On the principles of the Englifh Common Law, men may be made flaves for life for crimes, and fo clearly, by our prefent law. Property in a negro [was] acquired without deed. I Dal., 169."
Now, if all thefe points had been well taken and could be fortified by the neceffary amount of hiftorical teftimony, they would unqueftionably make a very good cafe. But unhappily they are mainly theoretical ftatements derived from abftract reafoning on general principles, of which no fuch applications were thought of in the period to which they are affigned. Yet the formality with which they are ftated, and the dignified place they hold in a book of great authority, give them an importance beyond the conjectures which are generally ventured as to how far the lot of the flave was mitigated in Maffachufetts.
Mr. Dane copied them with but flight alterations, chiefly in favor of Maffachufetts, from the treatife of Judge Reeve on " Domestic Relations," PP. 340-41, publifhed in 1816. There is no reference to the ftatutes, nor to any judicial decifions on any point, excepting as here quoted, either in original or copy.
Shall we be accounted prefumptuous, if we add a few comments as well as a reference to the facts already prefented, which muft throw great doubts over the whole array of rights thus claimed as having been ac- corded to flaves in Maffachufetts ?
The right to religion and life was not clearly recognized as belonging equally to bond-flave and free- man. Mr. Dane altered Judge Reeve's ftatement of the latter point. Judge Reeve faid, " if he killed him,
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he was liable to the fame punishment as for killing a free- man." The alteration indicates the nature of the doubt which may have arifen in the mind of Mr. Dane when he wrote it, " he was punishable as for kill- ing a freeman." No doubt he was punifhable. The incident which we have prefented of the mafter called to anfwer before the Court for the fact of killing his negro fhows this. So too, in the firft Maffachufetts Code, even "the Bruite Creature " is protected againft " Tirrany and Crueltie" by the very next ftatute after that which eftablifhes flavery-a fignificant fequence !
Here let it be remembered that the original law of flavery in Maffachufetts gave to flaves " all the liber- ties and Chriftian ufages which the law of God, eftab- lifhed in Ifrael concerning fuch perfons, doth morally require." Now the Mosaic Law here recognized and reenacted did not protect the life of a heathen flave againft his mafter's violence, by the penalty of " life for life," and although fuch violence might be punifhed, the kind and degree of punifhment is not now to be afcertained. Exodus, XXI., 20, 21. And there is a marked diftinction to be obferved in regard to the Hebrew, though a flave, who is favorably compared with the hired fervant and fojourner in contraft with the bondman. Leviticus, xxv., 39, 40. To what extent the "rigor" of heathen bondage among the Jews was foftened into " liberties and Chriftian ufages" among the Puritans is a queftion of fact and not of opinion. What was morally required by the law of God eftablifhed in Ifrael, in this as in all fimilar bufinefs, was a matter referved for their own decifion, in their own General Court and other tribunals. And
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this general provifion in the original law feems to have been the only one to which the flave could appeal, or more properly by which the conduct of the mafter could be regulated, in the government and difpofition of his chattel. It is certain that moft of the fpecial pro- vifions of the law refpecting mafters and fervants had no application to flaves, and we have already expreffed the doubt whether flaves enjoyed any of the privileges of fervants under that law.
Where is the evidence that Indians and Negroes in bondage were entitled to protection as other fervants ? and that the mafter was liable to his flave's action for beating, wounding, or immoderately chaftifing, etc. ? It is far more probable that the condition of the fervant was practically affimilated to that of the flave, than that the flave fhared any of the privileges accorded by ftatute to the fervant. It would add much to our knowledge on this fubject, if the examples fhould be adduced to fhow at what period in the hiftory of Maffachufetts the Indian and negro flave firft acquired a ftatus in Court as a profecutor, or in any other capacity than as a criminal at the bar, before which he was often enough called to anfwer under the unjuft and unequal legiflation of that period. If it was at any time before the American Revolution-how came it to pafs that, in 1783, a fine of forty fhillings againft a mafter for "beating, bruifing, and otherwife evilly intreating" his negro-flave, gave "a mortal wound to flavery in Maffachufetts ?" And further, if a flave could recover againft his mafter damages for cruelty, ยท why was it neceffary to refort to the fuit " by prochein ame" to enable him to keep his recovery ?
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Again, where is the evidence that flaves were capable of holding property, etc., beyond the occa- fional and exceptional permiffion to enjoy fome privi- leges as a peculium, with the profits of which they might in fome cafes be enabled even to purchafe their manumiffion ? Could flaves take and hold real eftate in Maffachufetts ? "No fervant, either man or maid," was permitted "to give, fell or truck any commodity whatfoever without licenfe from their Mafters, during the time of their fervice, under pain of fine, or corporal punifhment, at the difcretion of the Court, as the offence fhall deferve." Mafs. Laws, Ed. 1672, p. 104. Is it probable that a flave was on any better footing in this refpect than a white ferv- ant?
As to the form of action by which a mafter fhould fue for the unlawful taking of his flave without his confent-the only examples of fuch fuits in Maffa- chufetts to which we are able to refer, contradict the opinion that he could not have trover, but muft fue in trefpafs per quod Servitium amifit. GoodSpeed v. Gay, Mafs. Sup. Court Records, 1763, fol. 47, 101. Allifon v. Cockran, Ibid. 1764, fol. 103. The right to maintain trover for a negro was a matter of courfe in Maffa- chufetts, for there can be no queftion as to the fact that he might be held and fold as a chattel under the laws of that Colony and Province, and trover lies by any one who has any fpecial property in a chattel, with the right to immediate poffeffion. Compare Gray, in Quincy's Reports, 93, note, where all the authorities are cited.
The marriage of flaves in Maffachufetts has already
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been noticed, and it is obvious that the legiflators of Maffachufetts never intended that fuch marriages fhould confer any rights or impofe any duties which were incompatible with the ftate of flavery; and it may fafely be alleged that no inftance can be produced of the emancipation of a flave as a legal confequence of marriage with a free woman.1
The candor of the admiffion "that a flave how- ever could be fold, and in fome ftates be taken in execution for his mafter's debts," is unhappily quali- fied by the affertion that "no evidence is found of fuch taking in execution in Maffachufetts." The only reafon it was not found was, that it was not hunted; for the failure to find it muft have been either from want of difpofition or lack of dili- gence.
But we have faid enough on thefe topics to put thofe who are moft interefted upon inquiry. Thofe who are familiar with fuch refearches and have oppor- tunities of eafy reference to the records and files of the Courts in Maffachufetts during the period of which we are writing, can probably collate a fufficient number of examples to fettle all thefe queftions by authority. They will undoubtedly illuftrate the gradual ameliora- tion of all the various forms of oppreffion, but thefe changes muft be held to mark the era of their hiftorical development. If they prove that the doubts we have
1 We have been unable to verify the reference to "Lord Raymond, 356," as to the analogous emancipation of a minor child "from his father when he is married "-but we have high authority for the ftatement that the laws of Maffachufetts know of no fuch emancipation. 15 Mafs. Reports, 203.
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fuggefted are not well founded, we fhall be moft grati- fied with the refult.
The ultimate theory of flavery in all ages and na- tions has been reduced to a very brief and compre- henfive ftatement. Dr. Maine, in his admirable trea- tife on Ancient Law, fays that " the fimple wifh to ufe the bodily powers of another perfon as a means of miniftering to one's own eafe or pleafure is doubt- lefs the foundation of flavery and as old as human nature." And again, " there feems to be fomething in the inftitution of flavery which has at all times either fhocked or perplexed mankind, however little habituated to reflection, and however flightly advanced in the cultivation of its moral inftincts." To fatisfy the confcience of the mafter, the Greeks eftablifhed the idea of intellectual inferiority of certain races and confequent natural aptitude for the fervile condition. The Romans declared the doctrine of a fuppofed agree- ment between victor and vanquifhed, in which the firft ftipulated for the perpetual fervices of his foe, and the other gained in confideration the life which he had legitimately forfeited. Compare Maine, 162-66.
The Puritans of New England appear to have been neither fhocked nor perplexed with the inftitution, for which they made ample provifion in their earlieft code. They were familiar with the Greek and Roman ideas on the fubject, and added the conviction that flavery was eftablifhed by the law of God, and that Chris- tianity always recognized it as the antecedent Mofaic practice. On thefe foundations, is it ftrange that it held its place fo long in the history of Maffachu- fetts ?
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It has been said that the firft ftep towards the deftruction of flavery was the reftraint or prohibition of the importation of flaves. But it would be abfurd to regard laws for this purpofe as an expreffion of humane confideration for the negroes. Graham, in his hiftory, characterizes fuch a view of the moft ftringent one ever made in any of the Colonies, as an "impudent abfurdity." Hift. U. S., Iv., 78. We have already noticed the Maffachufetts acts of 1705, with the additional acts of 1728 and 1739, impofing and enforcing the collection of an import duty of four pounds per head upon all negroes brought into the Province.
There is no indication in the acts themfelves, nor have we been able to find any evidence, that they were intended other than as revenue acts, beyond that which we have prefented in thefe notes.
We have heretofore quoted the inftruction of the town of Bofton in 1701. It is not improbable that it was the refult . of Judge Sewall's efforts in 1700. Fruitlefs as it was, it fhows that even then fome were wife enough to fee that the importation of negroes was not fo beneficial to the Crown or Country as that of white fervants would be. In 1706, an effay or " Com- putation that the Importation of Negroes is not fo profit- able as that of White Servants," was publifhed in Bofton, which may properly be reproduced here. It was the firft newfpaper article againft the importation of negroes publifhed in America, and appeared in the Boston News-Letter, No. 112, June 10, 1706. We are inclined to attribute this article alfo to Judge Sewall.
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" By laft Year's Bill of Mortality for the Town of Boston, in Number 100 News-Letter, we are furnifhed with a Lift of 44 Negroes dead laft year, which being computed one with another at 3ol. per Head, amounts to the Sum of One Thoufand three hundred and Twenty Pounds, of which we would make this Remark : That the Im- porting of Negroes into this or the Neighboring Provinces is not fo beneficial either to the Crown or Country, as White Servants would be.
"For Negroes do not carry Arms to defend the Country as Whites do.
" Negroes are generally Eye-Servants, great Thieves, much addicted to Stealing, Lying and Purloining.
" They do not People our Country as Whites would do whereby we fhould be ftrengthened againft an Enemy.
" By Encouraging the Importing of White Men Servants, allowing fomewhat to the Importer, moft Hufbandmen in the Country might be furnifhed with Servants for 8, 9, or Iol. a Head, who are not able to launch out 40 or 5ol. for a Negro the now common Price.
" A Man then might buy a White Man Servant we fuppofe for Iol. to ferve 4 years, and Boys for the fame price to Serve 6, 8, or 10 years ; If a White Servant die, the Lofs exceeds not Iol. but if a Negro dies, 'tis a very great lofs to the Hufbandman ; Three years Intereft of the price of the Negro, will near upon if not altogether purchafe a White Man Servant.
" If Neceffity call for it, that the Hufbandman muft fit out a Man againft the Enemy ; if he has a Negro he cannot fend him, but if he has a White Servant, 'twill anfwer the end, and perhaps save his Son at home.
" Were Merchants and Mafters Encouraged as already faid to bring in Men Servants, there needed not be fuch Complaint againft Superiors Impreffing our Children to the War, there would then be Men enough to be had without Impreffing.
" The bringing in of fuch Servants would much enrich this Province becaufe Hufbandmen would not only be able far better to manure what Lands are already under Improvement, but would alfo improve a great deal more that now lyes wafte under Woods, and enable this Province to fet about raifing of Naval Stores, which would be greatly advantageous to the Crown of England, and this Province.
"For the raifing of Hemp here, fo as to make Sail-cloth and
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Cordage to furnifh but our own fhipping, would hinder the Importing it, and fave a confiderable fum in a year to make Returns for which we now do, and in time might be capacitated to furnifh England not only with Sail-cloth and Cordage, but likewife with Pitch, Tar, Hemp, and other Stores which they are now obliged to purchafe in Foreign Na- tions.
" Suppofe the Government here fhould allow Forty Shillings per- head for five years, to fuch as fhould Import every of thefe years 100 White Men Servants, and each to ferve 4 years, the coft would be but 200l. a year, and a 1000/. for the 5 years. The firft 100 Servants, being free the 4th year they ferve the 5th for Wages, and the 6th there is 100 that goes out into the Woods, and fettles a 100 Families to Strengthen and Baracado us from the Indians, and alfo a 100 Fami- lies more every year fucceffively.
" And here you fee that in one year the Town of Bofton has loft 1320l. by 44 Negroes, which is alfo a lofs to the Country in general, and for a lefs lofs (if it may be improperly be fo called) for a 1000l. the Country may have 500 Men in 5 years time for the 44 Negroes dead in one year.
" A certain perfon within thefe 6 years had two Negroes dead computed both at 6ol. which would have procured him fix white Ser- vants at Iol. per head to have Served 24 years, at 4 years apiece, without running fuch a great rifque, and the Whites would have ftrengthened the Country, that Negroes do not.
" "Twould do well that none of thofe Servants be liable to be Im- preffed during their Service of Agreement at their first Landing.
" That fuch Servants being Sold or Tranfported out of this Prov- ince during the time of their Service, the Perfon that buys them be liable to pay 3/. into the Treafury."
A third of a century after the publication of Judge Sewall's tract, another made its appearance, entitled " A Teftimony againft that Anti-Chriftian Practice of making Slaves of Men Wherein it is fhewed to be contrary to the Difpenfation of the Law, and Time of the Gofpel, and very oppofite both to Grace and Nature. By Elihu Coleman. Matthew 7. 12.
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Therefore all things whatfoever ye would that men fhould do unto you, do ye even fo to them, for this is the Law and the Prophets. Printed in the year 1733.". MS. Copy in the Library of the American Anti- quarian Society. This writer was a minifter of the So- ciety of Friends, and of Nantucket. His work was written in 1729-30. Coffin's Newbury, p. 338. Macy's Nantucket, p. 279.
At the Nantucket Monthly Meeting, in 1716, it was determined as "ye fenfe and judgment of this meeting, that it is not agreeable to truth for Friends to purchafe flaves and hold them term of life." Macy's Nantucket, p. 281.
In 1755, March 10, the town of Salem authorized a petition to the General Court againft the importa- tion of negroes. Felt's Salem, II., 416. There may have been other occafional efforts of this fort, but they muft have been comparatively few and fruitlefs.
We have thus noticed the moft important, if not the only anti-flavery demonftrations which appear in the hiftory of Maffachufetts down to the period im- mediately preceding the Revolution. Excepting thofe already mentioned, we know of no public advocates for the flave in that Colony and Province until the cry of refiftance to Britifh tyranny began to refound through the Colonies.
James Otis's great fpeech in the famous Caufe of the Writs of Affiftance in 1761-the firft fcene of the firft act of oppofition to the arbitrary claims of Great Britain-declared the rights of man, inherent and in- alienable. In that fpeech the poor negroes were not
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forgotten. None ever afferted their rights in ftronger terms. Adams's Works, x., 315. Mr. Bancroft poftpones Otis's "proteft againft negro flavery " to a later year (1764), when he tranflated the "fcathing fatire " of Montefquieu in his affertion and proof of the rights of the Britifh Colonies. This difference in time is not material for our prefent purpofe. Many years were to pafs away before his views on this fub- ject were accepted by the children's children of thofe to whom his words then founded like a rhapfody and an extravagance.
It was a ftrong arm, and it ftruck a fturdy blow, but the wedge recoiled and flew out from the tough black knot of flavery, which was deftined to outlaft the fierceft fires of the Revolution in Maffachufetts, thus kindled with live coals from the altar of univerfal liberty.
John Adams heard the words of Otis, and " fhud- dered at the doctrine he taught," and to the end of his long life continued "to fhudder at the confe- quences that may be drawn from fuch premifes." Yet John Adams "adored the idea of gradual abolitions." Works, x., 315. For his later views on emancipation, see Works, VI., 511., x., 379.
The views expreffed by Otis muft have founded ftrangely in the ears of men who "lived (as John Adams himfelf fays he did) for many years in times when the practice [of flavery] was not difgraceful, when the beft men in my vicinity thought it not in- confiftent with their character." Works, x., 380. If there was a prevailing public fentiment againft flavery in Maffachufetts-as has been conftantly claimed of
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Slavery in Mafachufetts.
late-the people of that day, far lefs demonftrative than their defcendants, had an extraordinary way of not fhowing it. Hutchinfon, who was undoubtedly the man of his time moft familiar with the hiftory of his native province, fays in his firft volume, publifhed in 1764, p. 444, "Some judicious perfons are of opinion that the permiffion of flavery has been a publick mifchief." This is certainly the indication of a very mild type of oppofition-by no means of a pervading public fentiment.
John Adams was not alone in his aftonifhment at the ideas expreffed by Otis. Thefe ideas were new as they were ftartling to the people of Maffachufetts in that day. And to the calm judgment of the hiftorian there is nothing ftrange in the fact that the foremoft man of his time in that province fhould have fhud- dered at the doctrines which Otis taught. More than a century paffed away before all the ancient badges of fervitude could be removed from the colored races in Maffachufetts, if indeed it be even now true that none of thofe difabilities which fo ftrongly mark the focial ftatus of the negro ftill linger in the legiflation of that State.
VI.
AMONG the ftrongeft indications of the coming change in opinion on this fubject, the "fuits for liberty," as they are called, challenge attention. They are alfo known as "fuits for freedom," and "fuits for fervice," in which flaves " fued their mafters for free-
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dom and for recompence for their fervice, after they had attained the age of twenty-one years."1 M. H. S. Coll., I., iv. 202.
There had been a cafe in Connecticut as early as 1703, in which a mafter was fummoned to anfwer, before a County Court, " to Abda, a mulatto, in an action of the cafe, for his unjuft holding and detaining the faid Abda in his fervice as his bondfman, for the fpace of one year laft paft." The damages were laid at 20l. The refult was a verdict againft the mafter for 12/. damages-" thereby virtually eftablifhing Abda's right to freedom." }. H. Trumbull's Notes from the Original Papers, etc. Conn. Courant, Nov. 9, 1850. In this cafe, the ground on which the flave refted his claim appears to have been his white blood.
The earlieft of thefe cafes in Maffachufetts, of which we have any knowledge, is noticed in the Diary of John Adams. It was in the Superior Court at Salem, in 1766. Under date of Wednefday, Novem- ber 5th, he fays: "Attended Court; heard the trial of an action of trefpafs, brought by a mulatto woman, for damages, for reftraining her of her liberty. This is called fuing for liberty ; the firft action that ever I knew of the fort, though I have heard there have been many." Works, II., 200.
1 If any of thefe decifions in Maffachufetts fustained the claims for wages, they are in strong contrast with the highest Englifh authority of the period. Many actions were brought in the Englifh Courts, by negro flaves against their masters for wages ; but Lord Mansfield, the great oracle of the Com- mon Law, was accustomed to deal very fummarily with them. He has left a very emphatic record on this point :
" When flaves have been brought here, and have commenced actions for their wages, I have always nonfuited the plaintiff." The King v. the In- habitants of Thames Ditton. 4 Doug., 300.
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Slavery in Mafachufetts. II3
We fuppofe this to have been the cafe of Jenny Slew vs. John Whipple, jr., the record of which we copy here.
" JENNY SLEW of Ipfwich in the County of Effex, fpinfter, Pltff., agft. JOHN WHIPPLE, Jun., of faid Ipfwich Gentleman, Deft., in a Plea of Trefpafs for that the faid John on the 29th day of January, A. D. 1762, at Ipfwich aforefaid with force and arms took her the faid Jenny, held and kept her in fervitude as a flave in his fervice, and has reftrained her of her liberty from that time to the fifth of March laft without any lawfull right & authority fo to do and did her other injuries againft the peace & to the damage of faid Jenny Slew as fhe faith the fum of twenty-five pounds. This action was firft brought at laft March Court at Ipfwich when & where the parties appeared & the cafe was continued by order of Court to the then next term when & where the Pltff appeared & the faid John Whipple Jun, came by Ed- mund Trowbridge, Efq. his attorney & defended when he faid that there is no fuch perfon in nature as Jenny Slew of Ipfwich aforefaid, Spinfter, & this the faid John was ready to verify wherefore the writ fhould be abated & he prayed judgment accordingly which plea was overruled by the Court and afterwards the faid John by the faid Ed- mund made a motion to the Court & praying that another perfon might endorfe the writ & be fubject to coft if any fhould finally be for the Court but the Court rejected the motion and then the Deft. faving his plea in abatement aforefaid faid that he is not guilty as the plaintiff con- tends, & thereof put himfelf on the Country, & then the caufe was con- tinued to this term, and now the Pltff. referving to herfelf the liberty of joining iffue on the Deft's plea aforefaid in the appeal fays that the defendant's plea aforefaid is an infufficient anfwer to the Plaintiff's declaration aforefaid and by law fhe is not held to reply thereto & fhe is ready to verify wherefore for want of a fufficient anfwer to the Plaintiff's declaration aforefaid fhe prays judgment for her damages & cofts & the defendant confenting to the waving of the demurrer on the appeal faid his plea aforefaid is good & becaufe the Pltff refufes to reply thereto He prays judgment for his coft. It is confidered by the Court that the defendant's plea in chief aforefaid is good & that the faid John Whipple recover of the faid Jenny Slew cofts tax at
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