USA > Massachusetts > Notes on the history of slavery in Massachusetts > Part 9
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the Pltff appealed to the next Superior Court of Judicature to be holden
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for this County & entered into recognizance with fureties as the law di- rects for profecuting her appeal to effect." Records of the Inferior Court of C. C. P., Vol. - , (Sep. 1760 to July 1766), page 502.
"JENNY SLEW of Ipfwich, in the County of Effex, Spinfter, Appel- lant, verfus JOHN WHIPPLE, Jr. of faid Ipfwich, Gentleman Appellee from the judgment of an Inferior Court of Common Pleas held at New- buryport within and for the County of Effex on the laft Tuefday of September 1765 when and where the appellant was plaint., and the ap- pellee was defendant in a plea of trefpafs, for that the faid John upon the 29th day of January, A. D. 1762, at Ipfwich aforefaid with force and arms took her the faid Jenny held & kept her in fervitude as a flave in his fervice & has reftrained her of her liberty from that time to the fifth of March 1765 without any lawful right or authority fo to do & did other injuries againft the Peace & to the damage of the faid Jenny Slew, as the faith, the fum of twenty-five pounds, at which In- ferior Court, judgment was rendered upon the demurrer then that the faid John Whipple recover againft the faid Jenny Slew cofts. This appeal was brought forward at the Superior Court of Judicature &c., holden at Salem, within & for the County of Effex on the firft Tuesday of laft November, from whence it was continued to the laft term of this Court for this County by confent & fo from thence unto this Court, and now both parties appeared & the demurrer afore- faid being waived by confent & iffue joined upon the plea tendered at faid Inferior Court & on file. The cafe after full hearing was com- mitted to a jury fworn according to law to try the fame who returned their verdict therein upon oath, that is to fay, they find for appellant reverfion of the former judgment four pounds money damage & cofts. It's therefore confidered by the Court, that the former judgment be re- verfed & that the faid Slew recover againft the faid Whipple the fum of four pounds lawful money of this Province damage & cofts taxed gl. 95. 6d.
" Exon. iffued 4 Dec. 1766." Records of the Superior Court of Judicature (Vol. 1766-7), page 175.
The cafe of Newport vs. Billing has been pre- vioufly noticed, p. 22, note. It is not improbable that this was the cafe in which John Adams was en-
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gaged, in the latter part of September, 1768, when he " attended the Superior Court at Worcefter and the next week proceeded to Springfield, where I was acci- dentally engaged in a caufe between a negro and his mafter." Works, II., 213.
The next cafe was that which has been for more than half a century the grand cheval de bataille of the champions of the hiftoric fame of Maffachufetts-the cafe of fames v. Lechmere, in Middlefex, in 1769. This is the cafe referred to in a recent paper read before the Maffachufetts Hiftorical Society, in which the writer felt at liberty to "indulge a pride equally juft and generous, that here, in the Courts of the Province, the ruling of Lord Mansfield [in the cafe of Somerfet] was anticipated by two years, in favor of perfonal freedom and human rights." M. H. S. Proc., 1863-4, p. 322. That is to fay, as the fame writer expreffes it elfewhere, in the cafe of fames v. Lechmere, " the right of a mafter to hold a flave had been denied, by the Superior Court of Maffachufetts, and upon the fame grounds, fubftantially, as thofe upon which Lord Mansfield difcharged Somerfet,1 when his cafe came before him." Washburn's fudi- cial Hift. of Mafs., 202. Compare alfo M. H. S.
I The abfurdity of the claim fet up for Maffachufetts is not diminifhed by the fact that no cafe in the hiftory of Englifh Law has been more mis- underfood and mifreprefented than the Somerfet cafe itfelf.
Thirteen years later (27 April, 1785), Lord Mansfield himfelf ftated expresfly "that his decifion went no farther than that the mafter cannot by force compel the flave to go out of the Kingdom." At the fame time he alfo faid, with reference to the alleged extinction of villenage, "villains in grofs may in point of law fubfift at this day. But the change of cuftoms and manners has effectually abolifhed them in point of fact." The King v. The Inhabitants of Thames Ditton, 4 Doug., 300. In the fame year, the '
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Proc., 1855-58, pp. 190-91, and Coll., Iv., iv., pp. 334-5.
It is a pity to difturb thefe cherifhed fancies, but the truth is that this cafe, fo often quoted " as having determined the unlawfulnefs of flavery in Maffachu- fetts, is Shown by the records and files of Court to have been brought up from the Inferior Court by Jham demurrer, and, after one or two continuances, fettled by the parties. Rec., 1769, fol. 196." Gray in Quincy's Reports, 30, note.
We muft not omit to note in paffing another in- terefting fact recently developed. James Somerfet, the fubject of the great Englifh "fuit for liberty," was not a Virginia or Weft India flave, as has been
fame great exponent of Englifh Law expresfly recognized property in flaves on board a flave-trader, in an action on a policy of affurance. The demand on the policy was for the lofs of a great many flaves by mutiny. Jones vs. Schmoll. I Term Reports, 130, note. Add to all this the notorious facts that flaves were bought and fold in England long after the time when it has been alleged that " Lord Mansfield firft eftablifhed the grand doctrine that the air of England is too pure to be breathed by a flave ; " that it was not until 1807 that the abolifhed her flave-trade, and twenty-feven weary years more elapfed before the fet her flaves free in her colonies ; and we can, without referring to the earlier hiftory of her royal and parliament- ary, national and individual patronage of flavery and the flave-trade, or her cowardly fympathy with the flaveholders' rebellion, eftimate the value of Earl Ruffell's recent declaration, that Great Britain has always been hoftile to flavery. "The British nation have always entertained, and ftill entertain, the deepeft abhorrence of laws by which men of one color were made flaves of men of another color. The efforts by which the United States Government and Congrefs have fhaken off flavery have, therefore, the warmeft fympathies of the people of thefe Kingdoms." Earl Ruffell to Mr. Adams, August 20, 1865. No language or hiftory within our knowledge furnishes fit epithet or parallel for fuch confummate hypocrify and recklefs difregard of the truth of hiftory. It would be an infult to the " hiftoric fame " of that unhappy Jewish fect to refer to the Pharifees. Perhaps it is enough to fay it is the empty " palaver " of a British Prime Minifter !
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generally ftated, but a negro-flave from Maffachu- fetts ! where he lived with his owner, Mr. Charles Stewart, who held an office in the cuftoms and refided in Bofton. Proc. M. H. S., 1863-64, p. 323.
Mr. Stewart left Bofton on the firft of October, 1769, and arrived in London on the tenth of Novem- ber following. He was accompanied by this flave, who continued in his fervice until the firft of October, 1771, when he ran away. His owner found means to feize and fecure him, and had placed him on board a veffel bound for Jamaica, in the cuftody of the cap- tain, who was to carry him there to be fold. This was on the 26th November, 1771. He was refcued by a writ of habeas corpus, and the proceedings in the cafe terminated in his releafe on the 22d June, 1772
There was a cafe in Nantucket, about the years 1769-1770, in which Mr. Rotch, a member of the Society of Friends, received on board a veffel called the Friendfhip, at that time engaged in the whale- fifhery, and commanded by Elifha Folger, a young flave by the name of " Bofton," belonging to the heirs of William Swain. At the termination of the voy- age, he paid to " Bofton" his proportion of the pro- ceeds. The mafter, John Swain, brought an action againft the captain of the veffel, in the Court of Common Pleas of Nantucket, for the recovery of his flave ; but the jury returned a verdict in favor of the defendant, and the flave is faid to have been " manu- mitted by the magiftrates." Swain took an appeal from this judgment to the Supreme Court at Bofton, but never profecuted it. Lyman's Report, 1822.
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Another cafe is mentioned in a letter of Thomas Pemberton, dated at Bofton, March 12, 1795, in reply to the Circular of Dr. Jeremy Belknap, dated Bofton, February 17, 1795, as follows :
"The firft inftance I have heard of a negro re- quefting his freedom as his right belonged, I am in- formed, to Dr. Stockbridge, of Hanover, in Ply- mouth County. His mafter refufed to grant it, but by affiftance of lawyers he obtained it, this about the year 1770."
Mr. Gray mentions the cafe of Cafar vs. Taylor, in Effex, 1772, in which " the wife of a flave was not allowed to teftify againft him," and "the defendant in an action of falfe imprifonment was not permitted under the general iffue to prove that the plaintiff was his flave." Quincy's Reports, 30, note.
In September or October, 1773, an action was brought in the Inferior Court, in Effex, againft Richard Greenleaf, of Newburyport, by Cæfar [Hendrick], a colored man, whom he claimed as his flave, for holding him in bondage. He laid the damages at fifty pounds. A letter from Newbury- port, October 10th, fays, "We have lately had our Court week when the novel cafe of Cæfar againft his mafter in an action of fifty pounds lawful money damages for detaining him in flavery was litigated before a jury of the County, who found for the plaintiff eighteen pounds damages and cofts." John Lowell, Efq., afterward Judge Lowell, was counfel for the plaintiff. Cofin's Newbury, 241, 339.
Nathan Dane notices this cafe in his Abridgment and Digeft of American Law. He fays :
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"As early as 1773, many negroes claimed their freedom, and brought actions of trefpafs againft their mafters for reftraining them. A. D. 1773, one Cæfar brought trefpafs againft his mafter, and declared that he, with force and arms, affaulted the plaintiff and imprifoned him, and fo with force and arms againft the plaintiff's will, hath there held, kept, and re- ftrained him in fervitude, as the faid G.'s flave, for fo long a time, etc.
" In this cafe the mafter protefted the plaintiff was his mulatto flave, and that he, the mafter, was not held by law to anfwer him ; but for plea the mafter faid he was not guilty. The parties agreed any fpecial matter might be given in evidence, etc. Counfel, Farnham and Lowell." Dane's Abridgment, II., 426.
Another cafe is mentioned as " brought on at the Inferior Court of Common Pleas for the County of Effex for July term [1774], between Mr. Caleb. Dodge of Beverly, and his negro fervant, in which the referees gave a verdict in favor of the negro, by which he obtained his freedom, there being no law of the province to hold a man to ferve for life." The Watch- man's Alarm, etc., p. 28, note. Yet the writer of this pamphlet fuggefted the "abolifhing of this vile cuftom of flave-making, either by a law of the prov- ince, Common Law, (which I am told has happily fucceeded in many inftances of late) or by a voluntary releafement." Ibid., p. 27.
Mr. Dane alfo refers to the cafe of Cefar vs. Taylor, and gives the following view of the fubject generally :
" In thefe cafes there feem to have been doubts
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if flavery exifted in Maffachufetts ; the caufes were generally argued on general principles ; the mafters urged, in fupport of flavery, the practice of ancient and fome modern nations ; alfo the Provincial Statutes of IO W. 3., ch. 6 .; 1 & 2 Anne, ch. 2 .; and 4 & 5 Anne, ch. 6.
" The plaintiffs argued that by Englifh Law, Slavery could not exift, and that we had nothing to do with any other, except the Provincial Statutes ; that if thefe eftablifhed flavery, it was merely by implication, and that natural liberty was never to be taken away by implication ; that at common law partus non Sequitur ventrem, though it might be otherwife by the civil law, which England, in this cafe, had never adopted ; that marriage and providing for children was a right and a duty which only free perfons could perform ; that the Gofpel forbid men to fell their brethren ; and that the plaintiffs were Christians, and, if held in flavery, could not perform their Chriftian duties ; that even villainage is abolifhed by Englifh law, and that the common law abhorred flavery. But it was ad- mitted by the plaintiff's counfel, that flavery might be eftablifhed by exprefs law; and the defendants urged, and it feems long to have been underftood, that the Provincial Statutes did expreffly recognize and es- tablifh flavery, as in the cafes above ftated, and in many others.
"In 1773, etc., fome flaves did recover againft their mafters ; but thefe cafes are no evidence that there could not be flaves in the Province, for fometimes mafters permitted their flaves to recover to get clear of maintaining them as paupers when old and infirm;
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the effect, as then generally underftood, of a judgment againft the mafter on this point of flavery; hence, a very feeble defence was often made by the mafters, efpecially when fued by the old or infirm flaves, as the mafters could not even manumit their flaves, without indemnifying their towns againft their maintenance, as town paupers." Dane's Abridgment, II., 426-7.
Chief-Juftice Parfons alfo, in the cafe of Winchen- don vs. Hatfield in error, confirms this view.
"Several negroes, born in this country of im- ported flaves demanded their freedom of their mafters by fuit at law, and obtained it by a judgment of court. The defence of the mafter was feebly made, for fuch was the temper of the times, that a reftlefs difcontented flave was worth little; and when his freedom was ob- tained in a courfe of legal proceedings, the mafter was not holden for his future fupport, if he became poor." IV Mafs. Reports, 128.
The reference by the Chief-Juftice to the circum- ftance that thefe negroes litigant were "born in this country," points to the queftion, whether hereditary flavery was legal in Maffachufetts? which is alfo touched in the previous reference by the counfel for the flaves, as ftated by Mr. Dane, to the difference between the rules of the Common Law and the Civil Law.
The Rev. Dr. Belknap, in his account of thefe fuits, fays, "On the part of the blacks it was pleaded, that the royal charter expreffly declared all perfons born or refiding in the province, to be as free as the King's fubjects in Great Britain ; that by the laws of Eng- land, no man could be deprived of his liberty but by
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the judgment of his peers ; that the laws of the prov- ince refpecting an evil exifting, and attempting to mitigate or regulate it, did not authorize it ; and, on fome occafions, the plea was, that though the flavery of the parents be admitted, yet no difability of that kind could defcend to children." M. H. S. Coll., I., iv., 203.
How far the arguments here noticed were urged in thefe various fuits, and whether in any of them thefe points were judicially ftated and determined, we are unable to fay. We have previoufly examined the legal hiftory of hereditary flavery in Maffachufetts ; and it may be proper in this connection to add fome- thing with refpect to the other pleas mentioned by Belknap. And firft, the alleged rights of the Indians and Negroes under the royal charter, and laws of England. The provifion referred to is fubftantially the fame in both Colony and Province charters, and is in the words following, viz :
"That all and every of the fubjects of us, our heirs and fucceffors, which go to and inhabit within our faid province and territory, and every of their children which fhall happen to be born there, or on the feas in going thither, or returning from thence, fhall have and enjoy all liberties and immunities of free and natural fubjects within the dominions of us, our heirs and fucceffors, to all intents, conftructions, and purpofes whatfoever, as if they and every of them were born within our realm of England."
The preamble to the Body of Liberties in 1641, which declares the civil privileges of the inhabitants of the Colony, might alfo have been referred to in this
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line of argument. Still, it is a hiftorical fact that the guaranties of the royal charters, and the Common Law of England as a perfonal law of privilege, did not ex- tend to Aliens, Negroes, or Indians.1
The other plea, " that the laws of the province refpecting an evil exifting, and attempting to mitigate or regulate it did not authorize it," could avail no- thing againft the other ftern hiftorical fact that flavery exifted in Maffachufetts "by virtue and equity of an exprefs Law of the Country warranting the fame, eftablifhed by a General Court, and fufficiently pub- lifhed ; or in cafe of the defect of a Law in any par- ticular cafe, by the word of God, . .. to be judged by the General Court." Was it faid that the colony-law was annulled with the Charter, by the authority of which it was made ? Still the ufage had prevailed and acquired force as the common law of the Province. The validity of the judgment againft the Charter in 1684, which was denied by the Houfe of Commons, and " queftioned by very great authority in England," was never admitted in Maffachufetts. 9 Gray, 517. There was nothing in the repeal of the Colony charter to affect the private rights of the colonifts. Ibid., 518. And generally the rights of the inhabitants, as well as the penalties to which they might be fubjected, con- tinued to be determined by the effect and according to the form of the colonial and provincial legiflation, i. e. the common law of Maffachufetts, rather than by
1 See Hurd's Law of Freedom and Bondage in the United States, Vol. I., PP. 196, 197, 201 : a perfect treafure-houfe of law and hiftory on its fubject, for which every ftudent of American Hiftory owes him a large debt of gratitude.
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the ancient common law of England. 5 Pickering, 203. 7 Cushing, 76, 77. 13 Pickering, 258. 13 Metcalf, 68-72.
But -whatever may have been the pleas or argu- ments in thefe fuits, or the opinions which influenced their various refults ; the fact remains that, although "the bonds of flavery" may have been "loofened " by thefe proceedings, and " the verdicts of juries in favor of liberty," the legal effect of fuch verdicts reached none but the parties immediately concerned ; and the inftitution of flavery continued to be recog- nized by law in Maffachufetts, defying all direct attempts to deftroy it.
The queftion however had been raifed, and flavery was challenged. Dr. Belknap fays, that "the con- troverfy began about the year 1766." M. H. S. Coll. I., iv., 201. We fhall endeavor to indicate the principal features of its progrefs in their juft relations, without difparagement and without exaggeration.
The town of Worcefter, by inftructions in 1765, required their reprefentative to " ufe his influence to obtain a law to put an end to that unchriftian and im- politic practice of making flaves of the human fpecies, and that he give his vote for none to ferve in His Majefty's Council, who will ufe their influence againft fuch a law." Boston News-Letter, June 4, 1765, quoted by Buckingham, Newspaper Literature, I., 31.
The town of Bofton, in May, 1766, inftructed their Reprefentatives as follows, viz. : "And for the total abolifhing of flavery among us, that you move for a law to prohibit the importation and the pur-
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chasing of flaves for the future." Lyman's Report, 1822.
This action was confirmed by a new vote in the following year. At the Town-Meeting on the 16th of March, 1767, the queftion came up, as to whether the Town would adhere to that part of its Inftruc- tions, and it paffed in the affirmative.1 Drake's Boston, 728-9. It is alfo faid, though probably true of a later period only, that "In fome of the country towns they voted to have no flaves among them, and that their mafters be indemnified from any expence, [after they had granted them freedom] that might arife by reafon of their age, infirmities, or in- ability to fupport themfelves." Letter of Mr. Thomas Pemberton to Dr. Jeremy Belknap, Bofton, Mch. 12, I795.
In 1767, an anonymous tract of twenty octavo pages againft flavery made its appearance. It was entitled " Confiderations on Slavery, in a Letter to a Friend." It was written by Nathaniel Appleton, a merchant of Bofton, afterwards a member of the firft Committee of Correfpondence and a zealous patriot during the Revolutionary ftruggle. Appleton Me- morial, 36.
On March 2d, 1769, the reverend Samuel Web- fter of Salifbury, Maffachufetts, publifhed "an earneft addrefs to my country on flavery." An extract is given by Mr. Coffin in his History of Newbury, p. 338.
1 The reader will note the coincidence of this proceeding with that in the Legiflature on the fame day, when it was " Ordered, that the Matter Subfide." See poft, p. 127.
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James Swan, "a Scotfman," and merchant in Bofton, publifhed " A Diffuafion to Great Britain and the Colonies, from the Slave-Trade to Africa- fhewing the Injuftice thereof, etc." It feems to have been in " the form of a fermon," and the writer was apparently better fatisfied with a fecond edition revifed and abridged, which he put forth in 1773, at the earneft defire of the Negroes in Bofton, in order to anfwer the purpofe of fending a copy to each town.
In 1767, the firft movement was made in the Legiflature to procure the paffage of an act againft fla- very and the flave-trade.
On the 13th March, a bill was brought into the Houfe of Reprefentatives " to prevent the unwarrant- able and unusual Practice or Cuftom of inflaving Man- kind in this Province, and the importation of flaves into the fame." It was read a firft time, and the queftion was moved, whether a fecond reading be referred to the next feffion of the General Court ? which was paffed in the negative. Then it was moved, that a claufe be brought into the bill, for a limitation to a certain time, and the queftion being put, it paffed in the affirmative; and it was further ordered, that the bill be read again on the following day, at ten o'clock. Journal, 387.
On the 14th, the bill " to prevent the unwarrant- able and unnatural Practice," etc., was read a fecond time, and the queftion was put whether the third reading be referred to the next May feffion? This paffed in the negative, and it was ordered that the Bill be read a third time on Monday next at three o'clock. Ibid., 390.
(
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On the 16th, "The Bill for preventing the un- natural and unwarrantable Cuftom of enflaving Man- kind in this Province, and the Importation of Slaves into the Same, was Read according to order, and, after a Debate,
" Ordered that the Matter fubfide, and that Capt. Sheaffe, Col. Richmond, and Col. Bourne, be a Com- mittee to bring in a Bill for laying a Duty of Impoft on Slaves importing into this Province." Ibid., 393.
On the 17th, a Bill for laying a Duty of Impoft upon the Importation of Slaves into this Province was read a firft and fecond time, and ordered for a third reading on the next day at eleven o'clock. Ibid., 408.
On the 18th, " the bill for laying an Impoft on the Importation of Negro and other Slaves, was read a third time, and the queftion was put, whether the enacting this bill fhould be referred to the next May feffion, that the Minds of the Country may be known thereupon ? Paffed in the Negative. Then the Ques- tion was put, Whether a claufe fhall be bro't in to limit the Continuance of the Act to the Term of one year ? Paffed in the Affirmative, and Ordered, that the Bill be recommitted." Ibid., 411. In the after- noon of the fame day, the bill was read with the amendment, and having paffed to be engroffed, was " fent up by Col. Bowers, Col. Gerrifh, Col. Leonard, Capt. Thayer, and Col. Richmond." Ibid., 41I.
The bill was read a firft time in the Council on the 19th of March, and on the 20th was read a fecond time and paffed to be engroffed "as taken into a new draft." On being fent down to the Houfe of Repre-
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fentatives for concurrence, in the afternoon of the fame day, it was " Read and unanimoufly non-con- curred, and the Houfe adhere to their own Vote. Sent up for concurrence." Ibid. Compare Gen. Court Records, May 1763 to May 1767, p. 485.
And thus the bill difappeared and was loft. It was the neareft approach to an attempt to abolifh flavery, within our knowledge, in all the Colonial and Provincial legiflation of Maffachufetts. The bills againft the importation of flaves cannot juftly be re- garded as direct attempts to abolifh the inftitution of flavery, whatever may have been the motives which influenced the action concerning them. The bill itfelf of 1767 has not been found, and it is not un- likely that its provifions may have been lefs pofitive and ftringent than its title, which is the chief author- ity for what little anti-flavery reputation it enjoys. Could it be recovered, it might illuminate the record we have given, and throw much light on the fubject generally. It is apparent from the record that what- ever may have been the height to which the zeal of anti-flavery had carried the agitation of the fubject on this occafion, it was duly "ordered, that the Matter fubfide;"1 so that it was only an Impoft Act which finally tried to ftruggle forth into exiftence, and perifhed in the effort. If indeed it was an attempt at abolition, the failure was fo fignal and decifive that it was not renewed until ten years afterward, when, as we fhall fee, it failed again.
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