THE COLONY OF MASSACHUSETTS,--CONTINUED.
1633-1775.
THE ERA OF PROHIBITORY LEGISLATION AGAINST SLAVERY.--BOSTON
INSTRUCTS HER REPRESENTATIVES TO VOTE AGAINST THE
SLAVE-TRADE.--PROCLAMATION ISSUED BY GOV. DUMMER AGAINST THE
NEGROES, APRIL 13, 1723.--PERSECUTION OF THE
NEGROES.--"SUING FOR LIBERTY."--LETTER OF SAMUEL ADAMS TO
JOHN PICKERING, JUN., ON BEHALF OF NEGRO MEMORIALISTS--A
BILL FOR THE SUPPRESSION OF THE SLAVE-TRADE PASSES.--IS
VETOED BY GOV. GAGE AND FAILS TO BECOME A LAW.
The time to urge legislation on the slavery question had come.
Cultivated at the first as a private enterprise, then fostered as a
patriarchal institution, slavery had grown to such gigantic
proportions as to be regarded as an unwieldy evil, and subversive of
the political stability of the colony. Men winked at the "day of its
small things," and it grew. Little legislation was required to
regulate it, and it began to take root in the social and political
life of the people. The necessities for legislation in favor of
slavery increased. Every year witnessed the enactment of laws more
severe, until they appeared as scars upon the body of the laws of the
colony. To erase these scars was the duty of the hour.
It was now 1755. More than a half-century of agitation and discussion
had prepared the people for definite action. Manumission and petition
were the first methods against slavery. On the 10th of March, 1755,
the town of Salem instructed their representative, Timothy Pickering,
to petition the General Court against the importation of slaves.[380]
The town of Worcester, in June, 1765, instructed their representative
to "use his influence to obtain a law to put an end to that
unchristian and impolitic practice of making slaves of the human
species, and that he give his vote for none to serve in His Majesty's
Council, who will use their influence against such a law."[381] The
people of Boston, in the month of May, 1766, instructed their
representatives as follows:--
"And for the total abolishing of slavery among us, that you
move for a law to prohibit the importation and the
purchasing of slaves for the future."[382]
And in the following year, 1767, on the 16th of March, the question
was put as to whether the town should adhere to its previous
instructions in favor of the suppression of the slave-trade, and
passed in the affirmative. Nearly all the towns, especially those
along the coast, those accessible by mails and newspapers, had
recorded their vote, in some shape or other, against slavery. The
pressure for legislation on the subject was great. The country members
of the Legislature were almost a unit in favor of the passage of a
bill prohibiting the further importation of slaves. The opposition
came from the larger towns, but the opposers were awed by the
determined bearing of the enemies of the slave-trade. The scholarship,
wealth, and piety of the colony were steadily ranging to the side of
humanity.
On the 13th of March, 1767, a bill was introduced in the House of
Representatives "to prevent the _unwarrantable and unlawful_ Practice
or Custom of inslaving Mankind in this Province, and the importation
of slaves into the same."[383] It was read the first time, when a
dilatory motion was offered that the bill lie over to the next
session, which was decided in the negative. An amendment was offered
to the bill, limiting it "to a certain time," which was carried; and
the bill made a special order for a second reading on the following
day. It was accordingly read on the 14th, when a motion was made to
defer it for a third reading to the next "May session." The friends of
the bill voted down this dilatory motion, and had the bill made the
special order of the following Monday,--it now being Saturday. On
Sunday there must have been considerable lobbying done, as can be seen
by the vote taken on Monday. After it was read, and the debate was
concluded, it was "_Ordered that the Matter subside_, and that Capt.
Sheaffe, Col. Richmond, and Col. Bourne, be a Committee to bring in a
Bill for laying a Duty of Impost on slaves importing into this
Province."[384] This was a compromise, that, as will be seen
subsequently, impaired the chances of positive and wholesome
legislation against slavery. The original bill dealt a double blow:
it struck at the slave-trade in the Province, and levelled the
institution already in existence. But some secret influences were set
in operation, that are forever hidden from the searching eye of
history; and the friends of liberty were bullied or cheated. There was
no need of a bill imposing an impost tax on slaves imported, for such
a law had been in existence for more than a half-century. If the tax
were not heavy enough, it could have been increased by an amendment of
a dozen lines. On the 17th the substitute was brought in by the
special committee appointed by the Speaker the previous day. The rules
requiring bills to be read on three several days were suspended, the
bill ordered to a first and second reading, and then made the special
order for eleven o'clock on the next day, Wednesday, the 18th. The
motion to lie on the table until the "next May" was defeated. An
amendment was then offered to limit the life of the bill to one year,
which was carried, and the bill recommitted. On the afternoon of the
same day it was read a third time, and placed on its passage with the
amendment. It passed, was ordered engrossed, and was "sent up by Col.
Bowers, Col. Gerrish, Col. Leonard, Capt. Thayer, and Col. Richmond."
On the 19th of March it was read a first time in the council. On the
20th it was read a second time, and passed to be engrossed "as taken
into a new draft." When it reached the House for concurrence, in the
afternoon of the same day, it was "Read and unanimously non-concurred,
and the House adhere to their own vote, sent up for concurrence."[385]
Massachusetts has gloried much and long in this Act to prohibit "the
Custom of enslaving mankind;" but her silver-tongued orators and
profound statesmen have never possessed the courage to tell the plain
truth about its complete failure. From the first it was harassed by
dilatory motions and amendments directed to its life; and the
substitute, imposing an impost tax on imported slaves for one year,
showed plainly that the friends of the original bill had been driven
from their high ground. It was like applying for the position of a
major-general, and then accepting the place of a corporal. It was as
though they had asked for a fish, and accepted a serpent instead. It
seriously lamed the cause of emancipation. It filled the slaves with
gloom, and their friends with apprehension. On the other hand, those
who profited by barter in flesh and blood laughed secretly to
themselves at the abortive attempt of the anti-slavery friends to call
a halt on the trade. They took courage. For ten weary years the voices
lifted for the freedom of the slave were few, faint, and far between.
The bill itself has been lost. What its subject-matter was, is left to
uncertain and unsatisfactory conjecture. All we know is from the title
just quoted. But it was, nevertheless, the only direct measure offered
in the Provincial Legislature against slavery during the entire
colonial period, and came nearest to passage of any. But "a miss is as
good as a mile!"
It was now the spring season of 1771. Ten years had flown, and no one
in all the Province of Massachusetts had had the courage to attempt
legislation friendly to the slave. The scenes of the preceding year
were fresh in the minds of the inhabitants of Boston. The blood of the
martyrs to liberty was crying from the ground. The "red coats" of the
British exasperated the people. The mailed hand, the remorseless steel
finger, of English military power was at the throat of the rights of
the people. The colony was gasping for independent political life. A
terrible struggle for liberty was imminent. The colonists were about
to contend for all that men hold dear,--their wives, their children,
their homes, and their country. But while they were panting for an
untrammelled existence, to plant a free nation on the shores of North
America, they were robbing Africa every year of her sable children,
and condemning them to a bondage more cruel than political
subjugation. This glaring inconsistency imparted to reflecting persons
a new impulse toward anti-slavery legislation.
In the spring of 1771 the subject of suppressing the slave-trade was
again introduced into the Legislature. On the 12th of April a bill
"_To prevent the Importation of slaves from Africa_" was introduced,
and read the first time, and, upon the question "When shall the bill
be read again?" was ordered to a second reading on the day following
at ten o'clock. Accordingly, on the 13th, the bill was read a second
time, and postponed till the following Tuesday morning. On the 16th it
was recommitted. On the 19th of the same month a "Bill to prevent the
Importation of Negro slaves into this Province" was read a first time,
and ordered to a second reading "to-morrow at eleven o'clock." On the
following day it was read a second time, and made the special order
for three o'clock on the following Monday. On the 22d, Monday, it was
read a third time, and placed upon its passage and engrossed. On the
24th it passed the House. When it reached the Council James Otis
proposed an amendment, and a motion prevailed that the bill lie upon
the table. But it was taken from the table, and the amendment of Otis
was concurred in by the House. It passed the Council in the latter
part of April, but failed to receive the signature of the governor, on
the ground that he was "not authorized by Parliament."[386] The same
reason for refusing his signature was set up by Gen. Gage. Thus the
bill failed. Gov. Hutchinson gave his reasons to Lord Hillsborough,
secretary of state for the colonies. The governor thought himself
restrained by "instructions" to colonial governors "from assenting to
any laws of a new and unusual nature." In addition to the foregoing,
his Excellency doubted the lawfulness of the legislation to which the
"scruple upon the minds of the people in many parts of the province"
would lead them; and that he had suggested the propriety of
transmitting the bill to England to learn "his Majesty's pleasure"
thereabouts. Upon these reasons Dr. Moore comments as follows:--
"These are interesting and important suggestions. It is
apparent that at this time there was no special instruction
to the royal governor of Massachusetts, forbidding his
approval of acts against the slave-trade. Hutchinson
evidently doubted the genuineness of the 'chief motive'
which was alleged to be the inspiration of the bill, the
'meerly moral' scruple against slavery; but his reasonings
furnish a striking illustration of the changes which were
going on in public opinion, and the gradual softening of the
harsher features of slavery under their influence. The
non-importation agreement throughout the Colonies, by which
America was trying to thwart the commercial selfishness of
her rapacious Mother, had rendered the provincial viceroys
peculiarly sensitive to the slightest manifestation of a
disposition to approach the sacred precincts of those
prerogatives by which King and Parliament assumed to bind
their distant dependencies: and the 'spirit of
non-importation' which Massachusetts had imperfectly learned
from New York was equally offensive to them, whether it
interfered with their cherished 'trade with Africa,' or
their favorite monopolies elsewhere."
Discouraged by the failure of the House and General Court to pass
measures hostile to the slave-trade, the people in the outlying towns
began to instruct their representatives, in unmistakable language, to
urge the enactment of repressive legislation on this subject. At a
town meeting in Salem on the 18th of May, 1773,[387] the
representatives were instructed to prevent, by appropriate
legislation, the further importation of slaves into the colony, as
"repugnant to the natural rights of mankind, and highly prejudicial to
the Province." On the very next day, May 19, 1773, at a similar
meeting in the town of Leicester, the people gave among other
instructions to Thomas Denny, their representative, the following on
the question of slavery:--
"And, as we have the highest regard for (so as even to
revere the name of) liberty, we cannot behold but with the
greatest abhorrence any of our fellow-creatures in a state
of slavery.
"Therefore we strictly enjoin you to use your utmost
influence that a stop maybe put to the slave-trade by the
inhabitants of this Province; which, we apprehend, may be
effected by one of these two ways: either by laying a heavy
duty on every negro imported or brought from Africa or
elsewhere into this Province; or by making a law, that every
negro brought or imported as aforesaid should be a free man
or woman as soon as they come within the jurisdiction of it;
and that every negro child that shall be born in said
government after the enacting such law should be free at the
same age that the children of white people are; and, from
the time of their birth till they are capable of earning
their living, to be maintained by the town in which they are
born, or at the expense of the Province, as shall appear
most reasonable.
"Thus, by enacting such a law, in process of time will the
blacks become free; or, if the Honorable House of
Representatives shall think of a more eligible method, we
shall be heartily glad of it. But whether you can justly
take away or free a negro from his master, who fairly
purchased him, and (although illegally; for such is the
purchase of any person against their consent unless it be
for a capital offence) which the custom of this country has
justified him in, we shall not determine; but hope that
unerring Wisdom will direct you in this and all your other
important undertakings."[388]
Medford instructed the representative to "use his utmost influence to
have a final period put to that most cruel, inhuman and unchristian
practice, the slave-trade." At a town meeting the people of Sandwich
voted, on the 18th of May, 1773, "that our representative is
instructed to endeavor to have an Act passed by the Court, to prevent
the importation of _slaves_ into this country, and that all children
that shall be born of such Africans as are now slaves among us, shall,
after such Act, be free at 21 yrs. of age."[389]
This completes the list of towns that gave instructions to their
representatives, as far as the record goes. But there doubtless were
others; as the towns were close together, and as the "spirit of
liberty was rife in the land."
The Negroes did not endure the yoke without complaint. Having waited
long and patiently for the dawn of freedom in the colony in vain, a
spirit of unrest seized them. They grew sullen and desperate. The
local government started, like a sick man, at every imaginary sound,
and charged all disorders to the Negroes. If a fire broke out, the
"Negroes did it,"--in fact, the Negroes, who were not one-sixth of the
population, were continually committing depreciations against the
whites! On the 13th of April, 1723, Lieut.-Gov. Dummer issued a
proclamation against the Negroes, which contained the following
preamble:--
"Whereas, within some short time past, many fires have broke
out within the town of Boston, and divers buildings have
thereby been consumed: which fires have been designedly and
industriously kindled by some villanous and desperate
negroes, or other dissolute people, as appears by the
confession of some of them (who have been examined by the
authority), and many concurring circumstances; and it being
vehemently suspected that they have entered into a
combination to burn and destroy the town, I have therefore
thought fit, with the advice of his Majesty's council, to
issue forth this proclamation," etc.
On Sunday, the 18th of April, 1723, the Rev. Joseph Sewall preached a
sermon suggested "by the late fires y't have broke out in Boston,
supposed to be purposely set by y'e negroes." The town was greatly
exercised. Everybody regarded the Negroes with distrust. Special
measures were demanded to insure the safety of the town. The selectmen
of Boston passed "nineteen articles" for the regulation of the
Negroes. The watch of the town was increased, and the military called
out at the sound of every fire-alarm "to keep the slaves from breaking
out"! In August, 1730, a Negro was charged with burning a house in
Malden; which threw the entire community into a panic. In 1755 two
Negro slaves were put to death for poisoning their master, John Codman
of Charlestown. One was hanged, and the other burned to death. In 1766
all slaves who showed any disposition to be free were "transported and
exchanged for small negroes."[390] In 1768 Capt. John Willson, of the
Fifty-ninth Regiment, was accused of exciting the slaves against their
masters; assuring them that the soldiers had come to procure their
freedom, and that, "with their assistance, they should be able to
drive the Liberty Boys to the Devil." The following letter from Mrs.
John Adams to her husband, dated at the Boston Garrison, 22d
September, 1774, gives a fair idea of the condition of the public
pulse, and her pronounced views against slavery.
"There has been in town a conspiracy of the negroes. At
present it is kept pretty private, and was discovered by one
who endeavored to dissuade them from it. He being threatened
with his life, applied to Justice Quincy for protection.
They conducted in this way, got an Irishman to draw up a
petition to the Governor [Gage], telling him they would
fight for him provided he would arm them, and engage to
liberate them if he conquered. And it is said that he
attended so much to it, as to consult Percy upon it, and one
Lieutenant Small has been very busy and active. There is but
little said, and what steps they will take in consequence of
it I know not. I wish most sincerely there was not a slave
in the province; it always appeared a most iniquitous scheme
to me to fight ourselves for what we are daily robbing and
plundering from those who have as good a right to freedom as
we have. You know my mind upon this subject."[391]
The Negroes of Massachusetts were not mere passive observers of the
benevolent conduct of their white friends. They were actively
interested in the agitation going on in their behalf. Here, as in no
other colony, the Negroes showed themselves equal to the emergencies
that arose, and capable of appreciating the opportunities to strike
for their own rights. The Negroes in the colony at length struck a
blow for their liberty. And it was not the wild, indiscriminate blow
of Turner, nor the military measure of Gabriel; not the remorseless
logic of bludgeon and torch,--but the sober, sensible efforts of _men_
and _women_ who believed their condition abnormal, and slavery
prejudicial to the largest growth of the human intellect. The
eloquence of Otis, the impassioned appeals of Sewall, and the zeal of
Eliot had rallied the languishing energies of the Negroes, and charged
their hearts with the divine passion for liberty. They had learned to
spell out the letters of freedom, and the meaning of the word had
quite ravished their fainting souls. They had heard that the royal
charter declared all the colonists British subjects; they had devoured
the arguments of their white friends, and were now prepared to act on
their own behalf. The slaves of Greece and Rome, it is true,
petitioned the authorities for a relaxation of the severe laws that
crushed their manhood; but they were captives from other nations,
noted for government and a knowledge of the science of warfare. But it
was left to the Negroes of Massachusetts to force their way into
counts created only for white men, and win their cause!
On Wednesday, Nov. 5, 1766, John Adams makes the following record in
his diary:--
"5. Wednesday. Attended Court; heard the trial of an action
of trespass, brought by a mulatto woman, for damages, for
restraining her of her liberty. This is called suing for
liberty; the first action that ever I knew of the sort,
though I have heard there have been many."[392]
So as early as 1766 Mr. Adams records a case of "suing for liberty;"
and though it was the first he had known of, nevertheless, he had
"heard there have been many." _How_ many of these cases were in
Massachusetts it cannot be said with certainty, but there were "many."
The case to which Mr. Adams makes reference was no doubt that of Jenny
Slew _vs._ John Whipple, jun., cited by Dr. Moore. It being the
earliest case mentioned anywhere in the records of the colony, great
interest attaches to it.
"JENNY SLEW of Ipswich in the County of Essex, spinster,
Pltff., agst. JOHN WHIPPLE, Jun., of said Ipswich Gentleman,
Deft., in a Plea of Trespass that the said John on the 29th
day of January, A.D. 1762, at Ipswich aforesaid with force
and arms took her the said Jenny, held and kept her in
servitude as a slave in his service, and has restrained her
of her liberty from that time to the fifth of March last
without any lawful right & authority so to do and did her
other injuries against the peace & to the damage of said
Jenny Slew as she saith the sum of twenty-five pounds. This
action was first brought at last March Court at Ipswich when
& where the parties appeared & the case was continued by
order of Court to the then next term when and where the
Pltff appeared & the said John Whipple Jun, came by Edmund
Trowbridge, Esq. his attorney & defended when he said that
there is no such person in nature as Jenny Slew of Ipswich
aforesaid, Spinster, & this the said John was ready to
verify wherefore the writ should be abated & he prayed
judgment accordingly which plea was overruled by the Court
and afterwards the said John by the said Edmund made a
motion to the Court & praying that another person might
endorse the writ & be subject to cost if any should finally
be for the Court but the Court rejected the motion and then
Deft. saving his plea in abatement aforesaid said that he is
not guilty as the plaintiff contends, & thereof put himself
on the Country, & then the cause was continued to this term,
and now the Pltff. reserving to herself the liberty of
joining issue on the Deft's plea aforesaid in the appeal
says that the defendant's plea aforesaid is an insufficient
answer to the Plaintiff's declaration aforesaid and by law
she is not held to reply thereto & she is ready to verify
wherefore for want of a sufficient answer to the Plaintiff's
declaration aforesaid she prays judgment for her damages &
costs & the defendant consenting to the waiving of the
demurrer on the appeal said his plea aforesaid is good &
because the Pltff refuses to reply thereto He prays judgment
for his cost. It is considered by the Court that the
defendant's plea in chief aforesaid is good & that the said
John Whipple recover of the said Jenny Slew costs tax at the
Pltff appealed to the next Superior Court of Judicature to
be holden for this County & entered into recognizance with
sureties as the law directs for prosecuting her appeal to
effect." _Records of the Inferior Court of C.C.P., Vol_.--,
(_Sept._ 1760 _to July_ 1766), _page_ 502.
"JENNY SLEW of Ipswich, in the County of Essex, Spinster,
Appellant, versus JOHN WHIPPLE, Jr. of said Ipswich,
Gentleman Appellee from the judgment of an Inferior Court of
Common Pleas held at Newburyport within and for the County
of Essex on the last Tuesday of September 1765 when and
where the appellant was plaint., and the appellee was
defendant in a plea of trespass, for that the said John upon
the 29th day of January, A.D. 1762, at Ipswich aforesaid
with force and arms took her the said Jenny held & kept her
in servitude as a slave in his service & has restrained her
of her liberty from that time to the fifth of March 1765
without any lawful right or authority so to do & did other
injuries against the Peace & to the damage of the said Jenny
Slew, as she saith, the sum of twenty-five pounds, at which
Inferior Court, judgment was rendered upon the demurrer then
that the said John Whipple recover against the said Jenny
Slew costs. This appeal was brought forward at the Superior
Court of Judicature &c., holden at Salem, within & for the
County of Essex on the first Tuesday of last November, from
whence it was continued to the last term of this Court for
this County by consent & so from thence unto this Court, and
now both parties appeared & the demurrer aforesaid being
waived by consent & issue joined upon the plea tendered at
said Inferior Court & on file. The case after full hearing
was committed to a jury sworn according to law to try the
same who returned their verdict therein upon oath, that is
to say, they find for appellant reversion of the former
judgment four pounds money damage & costs. It's therefore
considered by the Court, that the former judgment be
reversed & that the said Slew recover against the said
Whipple the sum of four pounds lawful money of this Province
damage & costs taxed 9_l._ 9_s._ 6_d._
"Exon. issued 4 Dec. 1766." _Records of the Superior Court
of Judicature_ (_vol._ 1766-7), _page_ 175.
The next of the "freedom cases," in chronological order, was the case
of Newport _vs._ Billing, and was doubtless the one in which John
Adams was engaged in the latter part of September, 1768.[393] It was
begun in the Inferior Court, where the decision was against the slave,
Amos Newport. The plaintiff took an appeal to the highest court in the
colony; and that court gave as its solemn opinion, "that the said Amos
[Newport] was not a freeman, as he alleged, but the proper slave of
the said Joseph [Billing]."[394] It should not be lost sight of, that
not only the Fundamental laws of 1641, but the highest court in
Massachusetts, held, as late as 1768, that there was property in man!
The case of James _vs._ Lechmere is the one "which has been for more
than half a century the grand _cheval de bataille_ of the champions of
the historic fame of Massachusetts."[395] Richard Lechmere resided in
Cambridge, and held to servitude for life a Negro named "James." On
the 2d of May, 1769, this slave began an action in the Inferior Court
of Common Pleas. The action was "in trespass for assault and battery,
and imprisoning and holding the plaintiff in servitude from April 11,
1758, to the date of the writ." The judgment of the Inferior Court was
adverse to the slave; but on the 31st of October, 1769, the Superior
Court of Suffolk had the case settled by compromise. A long line of
worthies in Massachusetts have pointed with pride to this decision as
the legal destruction of slavery in that State. But it "_is shown by
the records and files of Court to have been brought up from the
Inferior Court by sham demurrer, and, after one or two continuances,
settled by the parties_."[396] The truth of history demands that the
facts be given to the world. It will not be pleasant for the people of
Massachusetts to have this delusion torn from their affectionate
embrace. It was but a mere historical chimera, that ought not to have
survived a single day; and, strangely enough, it has existed until the
present time among many intelligent people. This case has been cited
for the last hundred years as having settled the question of bond
servitude in Massachusetts, when the fact is, there was no decision in
this instance! And the claim that Richard Lechmere's slave James was
adjudged free "upon the same grounds, substantially, as those upon
which Lord Mansfield discharged Sommersett," is absurd and
baseless.[397] For on the 27th of April, 1785 (thirteen years after
the famous decision), Lord Mansfield himself said, in reference to the
Sommersett case, "that his decision went no farther than that the
master cannot by force compel the slave to go out of the kingdom."
Thirty-five years of suffering and degradation remained for the
Africans after the decision of Lord Mansfield. His lordship's decision
was rendered on the 22d of June, 1772; and in 1807, thirty-five years
afterwards, the British government abolished the slave-trade. And
then, after twenty-seven years more of reflection, slavery was
abolished in English possessions. _So, sixty-two years after Lord
Mansfield's decision, England emancipated her slaves!_ It took only
two generations for the people to get rid of slavery under the British
flag. How true, then, that "facts are stranger than fiction"!
In 1770 John Swain of Nantucket brought suit against Elisha Folger,
captain of the vessel "Friendship," for allowing a Mr. Roth to receive
on board his ship a Negro boy named "Boston," and for the recovery of
the slave. This was a jury-trial in the Court of Common Pleas. The
jury brought in a verdict in favor of the slave, and he was
"manumitted by the magistrates." John Swain took an appeal from the
decision of the Nantucket Court to the Supreme Court of Boston, but
never prosecuted it.[398] In 1770, in Hanover, Plymouth County, a
Negro asked his master to grant him his freedom as _his right_. The
master refused; and the Negro, with assistance of counsel, succeeded
in obtaining his liberty.[399]
"In October of 1773, an action was brought against Richard
Greenleaf, of Newburyport, by Cæsar [Hendrick,] a colored
man, whom he claimed as his slave, for holding him in
bondage. He laid the damages at fifty pounds. The counsel
for the plaintiff, in whose favor the jury brought in their
verdict and awarded him eighteen pounds damages and costs,
was John Lowell, esquire, afterward judge Lowell. This case
excited much interest, as it was the first, if not the only
one of the kind, that ever occurred in the county."[400]
This case is mentioned in full by Mr. Dane in his "Abridgment and
Digest of American Law," vol. ii. p. 426.
In the Inferior Court of Common Pleas, in the county of Essex, July
term in 1774, a Negro slave of one Caleb Dodge of Beverly brought an
action against his master for restraining his liberty. The jury gave a
verdict in favor of the Negro, on the ground that there was "no law of
the Province to hold a man to serve for life."[401] This is the only
decision we have been able to find based upon such a reason. The jury
may have reached this conclusion from a knowledge of the provisions of
the charter of the colony; or they may have found a verdict in
accordance with the charge of the court. The following significant
language in the charter of the colony could not have escaped the
court:--
"That all and every of the subjects of us, our heirs and
successors, which go to and inhabit within our said province
and territory, and every of their children which shall
happen to be born there, or on the seas in going thither, or
returning from thence, shall have and enjoy all liberties
and immunities of free and natural subjects within the
dominions of us, our heirs and successors, to all intents,
constructions, and purposes whatsoever, as if they and every
of them were born within our realm of England."
The Rev. Dr. Belknap, speaking of these cases which John Adams speaks
of as "suing for liberty," gives an idea of the line of argument used
by the Negroes:--
"On the part of the blacks it was pleaded, that the royal
charter expressly declared all persons born or residing in
the province, to be as free as the King's subjects in Great
Britain; that by the laws of England, no man could be
deprived of his liberty but by the judgment of his peers;
that the laws of the province respecting an evil existing,
and attempting to mitigate or regulate it, did not authorize
it; and, on some occasions, the plea was, that though the
slavery of the parents be admitted, yet no disability of
that kind could descend to children."[402]
The argument pursued by the masters was,--
"The pleas on the part of the masters were, that the negroes
were purchased in open market, and bills of sale were
produced in evidence; that the laws of the province
recognized slavery as existing in it, by declaring that no
person should manumit his slave without giving bond for his
maintenance."[403]
It is well that posterity should know the motives that inspired judges
and juries to grant these Negroes their prayer for liberty.
"In 1773, etc., some slaves did recover against their
masters; but these cases are no evidence that there could
not be slaves in the Province, for sometimes masters
permitted their slaves to recover, to get clear of
maintaining them as _paupers_ when old and infirm; the
effect, as then generally understood, of a judgment against
the master on this point of slavery; hence, a very feeble
defence was often made by the masters, especially when sued
by the old or infirm slaves, as the masters could not even
manumit their slaves, without indemnifying their towns
against their maintenance, as town paupers."
And Chief-Justice Parsons, in the case of Winchendon _vs._ Hatfield,
in error, says,--
"Several negroes, born in this country of imported slaves
demanded their freedom of their masters by suit at law, and
obtained it by a judgment of court. The defence of the
master was feebly made, for such was the temper of the
times, that a restless discontented slave was worth little;
and when his freedom was obtained in a course of legal
proceedings, the master was not holden for his future
support, if he became poor."
Thus did the slaves of Massachusetts fill their mouths with arguments,
and go before the courts. The majority of them, aged and infirm, were
allowed to gain their cause in order that their masters might be
relieved from supporting their old age. The more intelligent, and,
consequently, the more determined ones, were allowed to have their
freedom from prudential reasons, more keenly felt than frankly
expressed by their masters. In some instances, however, noble,
high-minded Christians, on the bench and on juries, were led to their
conclusions by broad ideas of justice and humanity. But the spirit of
the age was cold and materialistic. With but a very few exceptions,
the most selfish and constrained motives conspired to loose the chains
of the bondmen in the colony.
The slaves were not slow to see that the colonists were in a frame of
mind to be persuaded on the question of emancipation. Their feelings
were at white heat in anticipation of the Revolutionary struggle, and
the slaves thought it time to strike out a few sparks of sympathy.
On the 25th of June, 1773, a petition was presented to the House of
Representatives, and read before that body during the afternoon
session. It was the petition "of Felix Holbrook, and others, Negroes,
praying that they may be liberated from a state of Bondage, and made
Freemen of this Community, and that this Court would give and grant to
them some part of the unimproved Lands belonging to the Province, for
a settlement, or relieve them in such other Way as shall seem good and
wise upon the Whole." After its reading, a motion prevailed to refer
it to a select committee for consideration, with leave to report at
any time. It was therefore "ordered, that Mr. Hancock, Mr. Greenleaf,
Mr. Adams, Capt. Dix, Mr. Pain, Capt. Heath, and Mr. Pickering
consider this Petition, and report what may be proper to be
done."[404] It was a remarkably strong committee. There were the
patriotic Hancock, the scholarly Greenleaf, the philosophic Pickering,
and the eloquent Samuel Adams. It was natural that the Negro
petitioners should have expected something. Three days after the
committee was appointed, on the 28th of June, they recommended "that
the further Consideration of the Petition be referred till next
session." The report was adopted, and the petition laid over until the
"_next session_."[405]
But the slaves did not lose heart. They found encouragement among a
few noble spirits, and so were ready to urge the Legislature to a
consideration of their petition at the next session, in the winter of
1774. The following letter shows that they were anxious and earnest.
"SAMUEL ADAMS TO JOHN PICKERING, JR.
"BOSTON, Jan'y. 8, 1774.
"_Sir_,--
As the General Assembly will undoubtedly meet on the 26th of
this month, the Negroes whose petition lies on file, and is
referred for consideration, are very solicitous for the
Event of it, and having been informed that you intended to
consider it at your leisure Hours in the Recess of the
Court, they earnestly wish you would compleat a Plan for
their Relief. And in the meantime, if it be not too much
Trouble, they ask it as a favor that you would by a Letter
enable me to communicate to them the general outlines of
your Design. I am, with sincere regard," etc.[406]
It is rather remarkable, that on the afternoon of the first day of the
session,--Jan. 26, 1774,--the "Petition of a number of Negro Men,
which was entered on the Journal of the 25th of June last, and
referred for Consideration to this session," was "read again, together
with a Memorial of the same Petitioners, and _Ordered_, that Mr.
Speaker, Mr. Pickering, Mr. Hancock, Mr. Adams, Mr. Phillips, Mr.
Pain, and Mr. Greenleaf consider the same, and report."[407] The
public feeling on the matter was aroused. It was considered as
important as, if not more important than, any measure before the
Legislature.
The committee were out until March, considering what was best to do
about the petition. On the 2d of March, 1774, they reported to the
House "a Bill to prevent the Importation of Negroes and others as
slaves into this Province," when it was read a first time. On the 3d
of March it was read a second time in the morning session; in the
afternoon session, read a third time, and passed to be engrossed. It
was then sent up to the Council to be concurred in, by Col. Gerrish,
Col. Thayer, Col. Bowers, Mr. Pickering and Col. Bacon.[408] On the
next day the bill "passed in Council with Amendments,"[409] and was
returned to the House. On the 5th of March the House agreed to concur
in Council amendments, and on the 7th of March passed the bill as
amended. On the day following it was placed upon its passage in the
Council, and carried. It was then sent down to the governor to receive
his signature, in order to become the law of the Province. That
official's approval was withheld, and the reason given was, "the
secretary said (on returning the approved bills) that his Excellency
had not had time to consider the other Bills that had been laid before
him."[410]
It is quite fortunate that the bill was preserved;[411] for it is now,
in the certain light of a better civilization, a document of great
historic value.
"ANNO REGNI REGIS GEORGII TERTII &c. DECIMO QUARTO.
"AN ACT to prevent the importation of Negroes or
other Persons as Slaves into this Province, and the
purchasing them within the same, _and for making provision
for relief of the children of such as are already subjected
to slavery Negroes Mulattoes & Indians born within this
Province_.
"WHEREAS the Importation of Persons as Slaves into
this Province has been found detrimental to the interest of
his Majesty's subjects therein; And it being apprehended
that the abolition thereof will be beneficial to the
Province--
"_Be it therefore Enacted_ by the Governor Council and House
of Representatives that whoever shall after the Tenth Day of
April next import or bring into this Province by Land or
Water any Negro or other Person or Persons whether Male or
Female as a Slave or Slaves shall for each and every such
Person so imported or brought into this Province forfeit and
pay the sum of one hundred Pounds to be recovered by
presentment or indictment of a Grand Jury and when so
recovered to be to his Majesty for the use of this
Government or by action of debt in any of his Majesty's
Courts of Record and in case of such recovery the one moiety
thereof to be to his majesty for the use of this Government
the other moiety to the Person or Persons who shall sue for
the same.
"_And be it further Enacted_ that from and after the Tenth
Day of April next any Person or Persons that shall purchase
any Negro or other Person or Persons as a Slave or Slaves
imported or brought into this Province as aforesaid shall
forfeit and pay for every Negro or other Person so purchased
Fifty Pounds to be recovered and disposed of in the same way
and manner as before directed.
"_And be it further Enacted_ that every Person, concerned in
importing or bringing into this Province, or purchasing any
such Negro or other Person or Persons as aforesaid within
the same; who shall be unable, or refuse, to pay the
Penalties or forfeitures ordered by this Act; shall for
every such offence suffer Twelve months' imprisonment
without Bail or mainprise.
"_Provided_ allways that nothing in this act contained shall
extend to subject to the Penalties aforesaid the Masters,
Mariners, Owners or Freighters of any such Vessel or
Vessels, as before the said Tenth Day of April next shall
have sailed from any Port or Ports in this Province, for any
Port or Ports not within this Government, for importing or
bringing into this Province any Negro or other Person or
Persons as Slaves who in the prosecution of the same voyage
may be imported or brought into the same. _Provided_ he
shall not offer them or any of them for sale.
"_Provided_ also that this act shall not be construed to
extend to any such Person or Persons, occasionally hereafter
coming to reside within this Province, or passing thro' the
same, who may bring such Negro or other Person or Persons as
necessary servants into this Province provided that the stay
or residence of such Person or Persons shall not exceed
Twelve months or that such Person or Persons within said
time send such Negro or other Person or Persons out of this
Province there to be and remain, and also that during said
Residence such Negro or other Person or Persons shall not be
sold or alienated within the same.
"[Transcriber's Note: Inverted A appears here.] _And be it
further Enacted and declared that nothing in this act
contained shall extend or be construed to extend for
retaining or holding in perpetual servitude any Negro or
other Person or Persons now inslaved within this Province
but that every such Negro or other Person or Persons shall
be intituled to all the Benefits such Negro or other Person
or Persons might by Law have been intituled to, in case this
act had not been made_.
"In the House of Representatives March 2, 1774. Read a first
& second Time. March 3, 1774. Read a third Time & passed to
be engrossed. Sent up for concurrence.
T. CUSHING, _Spkr._
"In Council March 3, 1774. Read a first time. 4. Read a
second Time and passed in Concurrence to be Engrossed with
the Amendment at [Transcriber's Note: Inverted A appears
here.] dele the whole Clause. Sent down for concurrence.
THOS. FLUCKER, _Secry._
"In the House of Representatives March 4, 1774. Read and
concurred.
T. CUSHING, _Spkr._"
Like all other measures for the suppression of the slave-trade, this
bill failed to become a law. If Massachusetts desired to free herself
from this twofold cross of woe,--even if her great jurists could trace
the law that justified the abolition of the curse, in the pages of the
royal charter,--were not the British governors of the Province but
conserving the corporation interests of the home government and the
members of the Royal African Company? By the Treaty of Utrecht,
England had agreed to furnish the Spanish West Indies with Negroes
for the space of thirty years. She had aided all her colonies to
establish slavery, and had sent her navies to guard the vessels that
robbed Africa of five hundred thousand souls annually.[412] This was
the cruel work of England. For all her sacrifices in the war, the
millions of treasure she had spent, the blood of her children so
prodigally shed, with the glories of Blenheim, of Ramillies, of
Oudenarde and Malplaquet, England found her consolation and reward in
seizing and enjoying, as the lion's share of results of the grand
alliance against the Bourbons, the exclusive right for thirty years of
selling African slaves to the Spanish West Indies and the coast of
America![413] Why _should_ Gov. Hutchinson sign a bill that was
intended to choke the channel of a commerce in human souls that was so
near the heart of the British throne?
Gov. Hutchinson was gone, and Gen. Gage was now governor. He convened
the General Court at Salem, in June, 1774. On the 10th of June the
same bill that Gov. Hutchinson had refused to sign was introduced,
with a few immaterial changes, and pushed to a third reading, and
engrossed the same day. It was called up on the 16th of June, and
passed. It was sent up to the Council, where it was read a third time,
and concurred in. But the next day the General Court was dissolved!
And over the grave of this, the last attempt at legislation to
suppress the slave-trade in Massachusetts, was written: "_Not to have
been consented_ to by the governor"!
These repeated efforts at anti-slavery legislation were strategic and
politic. The gentlemen who hurried those bills through the House and
Council, almost regardless of rules, knew that the royal governors
would never affix their signatures to them. But the colonists, having
put themselves on record, could appeal to the considerate judgment of
the impatient Negroes; while the refusal of the royal governors to
give the bills the force of law did much to drive the Negroes to the
standard of the colonists. In the long night of darkness that was
drawing its sable curtains about the colonial government, the loyalty
of the Negroes was the lonely but certain star that threw its peerless
light upon the pathway of the child of England so soon to be forced to
lift its parricidal hand against its rapacious and cruel mother.
FOOTNOTES:
[380] Felt, vol. ii. p. 416.
[381] Newspaper Literature, vol. i. p. 31.
[382] Lyman's Report, quoted by Dr. Moore.
[383] House Journal, p. 387.
[384] Ibid.
[385] House Journals; see, also, Gen. Court Records, May, 1763, to
May, 1767, p. 485.
[386] Slavery in Mass., pp. 131, 132.
[387] Felt, vol. ii. pp. 416, 417.
[388] Hist. of Leicester, pp. 442, 443.
[389] Freeman's Hist. of Cape Cod, vol. ii. pp. 114, 115.
[390] Boston Gazette, Aug. 17, 1761.
[391] Letters of Mrs. Adams, p. 20.
[392] Adams's Works, vol. ii. p. 200.
[393] Adams's Works, vol. ii, p. 213.
[394] Records, 1768, fol., p. 284.
[395] This is the case referred to by the late Charles Sumner in his
famous speech in answer to Senator Butler of South Carolina; see also
Slavery in Mass., p. 115, 116; Washburn's Judicial Hist. of Mass., p.
202; Mass. Hist. Soc. Proc., 1863-64, p. 322.
[396] Records, 1769, fol. p. 196. Gray in Quincy's Reports, p. 30,
note, quoted by Dr. Moore.
[397] Slavery in Mass., pp. 115, 116, note.
[398] Lyman's Report, 1822.
[399] Slavery in Mass., p. 118.
[400] Hist. of Newbury, p. 339.
[401] The Watchman's Alarm, p. 28, note; also Slavery in Mass., p.
119.
[402] Mass. Hist Soc. Coll., vol. iv. 1st Series, pp. 202, 203.
[403] Hildreth, vol. ii. p. 564.
[404] House Journal, p. 85, quoted by Dr. Moore.
[405] House Journal, p. 94.
[406] Slavery in Mass., p. 136.
[407] House Journal, p. 104.
[408] House Journal p. 224.
[409] Ibid., p. 226.
[410] House Journal, Gen Court Records, xxx. pp. 248, 264; also,
Slavery in Mass, p. 137.
[411] Mass. Archives, Domestic Relations, 1643-1774, vol. ix. p. 457.
[412] Ethiope, p. 12.
[413] Bolingbroke, pp. 346-348.