# Notes on the History of Slavery in Massachusetts/Chapter 6

VI.
Among the strongest indications of the coming change in opinion on this subject, the "suits for liberty," as they are called, challenge attention. They are also known as "suits for freedom," and "suits for service," in which slaves "sued their masters for free​dom and for recompence for their service, after they had attained the age of twenty-one years." M. H. S. Coll., I., iv. 202.
There had been a case in Connecticut as early as 1703, in which a mafster was summoned to answer, before a County Court, "to Abda, a mulatto, in an action of the case, for his unjust holding and detaining the said Abda in his service as his bondsman, for the space of one year last past." The damages were laid at 20l. The result was a verdict against the master for 12l. damages—"thereby virtually eftablishing Abda's right to freedom." J. H. Trumbull's Notes from the Original Papers, etc. Conn. Courant, Nov. 9, 1850. In this case, the ground on which the slave rested his claim appears to have been his white blood.
The earliest of these cafes in Massachusetts, 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 Wednesday, November 5th, he says: "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." Works, II., 200.
​We suppose this to have been the case of Jenny Slew vs. John Whipple, jr., the record of which we copy here.
"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 for 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 lawfull right & authority so to do and did her other injuries against the peace & to the damage of said Jenny Slew as she faith 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 & where the Pltff appeared & the said John Whipple Jun, came by Edmund Trowbridge, Esg. 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 the 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 suffcient answer to the Plaintiff's declaration aforesaid she prays judgment for her damages & costs & the defendant consenting to the waving of the demurrer on the appeal said his plea aforesaid is good & because the Pltf 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. —, (Sep. 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 9l. 9s. 6d.
"Exon, issued 4 Dec. 1766." Records of the Superior Court of Judicature (Vol. 1766–7), page 175.
The case of Newport vs. Billing has been previoufsy noticed, p. 22, note. It is not improbable that this was the case in which John Adams was en​gaged, in the latter part of September, 1768, when he "attended the Superior Court at Worcester and the next week proceeded to Springfield, where I was accidentally engaged in a cause between a negro and his master." Works, II., 213.
The next case was that which has been for more than half a century the grand cheval de bataille of the champions of the historic fame of Massachusetts—the case of James v. Lechmere, in Middlesex, in 1769. This is the case referred to in a recent paper read before the Massachufetts Historical Society, in which the writer felt at liberty to "indulge a pride equally just and generous, that here, in the Courts of the Province, the ruling of Lord Mansfield [in the case of Somerset] was anticipated by two years, in favor of personal freedom and human rights." M. H. S. Proc., 1863–4, p. 322. That is to say, as the same writer expresses it elsewhere, in the case of James v. Lechmere, "the right of a master to hold a slave had been denied, by the Superior Court of Massachusetts, and upon the same grounds, substantially, as those upon which Lord Mansfield discharged Somerset, when his case came before him." Washburn's Judicial Hist. of Mass., 202. Compare also M. H. S. ​Proc., 1855–58, pp. 190–91, and Coll., IV., iv., pp. 334–5.
It is a pity to disturb these cherished fancies, but the truth is that this case, so often quoted "as having determined the unlawfulness of slavery in Massachusetts, 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. Rec., 1769, fol. 196." Gray in Quincy's Reports, 30, note.
We must not omit to note in passing another interesting fact recently developed. James Somerset, the subject of the great English "suit for liberty," was not a Virginia or West India slave, as has been ​generally stated, but a negro-slave from Massachusetts! where he lived with his owner, Mr. Charles Stewart, who held an office in the customs and resided in Boston. Proc. M. H. S., 1863–64, p. 323.
Mr. Stewart left Boston on the first of October, 1769, and arrived in London on the tenth of November following. He was accompanied by this slave, who continued in his service until the first of October, 1771, when he ran away. His owner found means to seize and secure him, and had placed him on board a vessel bound for Jamaica, in the custody of the captain, who was to carry him there to be sold. This was on the 26th November, 1771. He was rescued by a writ of habeas corpus, and the proceedings in the case terminated in his release on the 22d June, 1772.
There was a case in Nantucket, about the years 1769–1770, in which Mr. Rotch, a member of the Society of Friends, received on board a vessel called the Friendship, at that time engaged in the whale-fishery, and commanded by Elisha Folger, a young slave by the name of "Boston," belonging to the heirs of William Swain. At the termination of the voyage, he paid to "Boston" his proportion of the proceeds. The master, John Swain, brought an action against the captain of the vessel, in the Court of Common Pleas of Nantucket, for the recovery of his slave; but the jury returned a verdict in favor of the defendant, and the slave is said to have been "manumitted by the magistrates." Swain took an appeal from this judgment to the Supreme Court at Boston, but never prosecuted it. Lyman's Report, 1822.
​Another case is mentioned in a letter of Thomas Pemberton, dated at Boston, March 12, 1795, in reply to the Circular of Dr. Jeremy Belknap, dated Boston, February 17, 1795, as follows:
"The first instance I have heard of a negro requesting his freedom as his right belonged, I am informed, to Dr. Stockbridge, of Hanover, in Plymouth County. His master refused to grant it, but by assistance of lawyers he obtained it, this about the year 1770."
Mr. Gray mentions the case of Csar vs. Taylor, in Essex, 1772, in which "the wife of a slave was not allowed to testify against him," and "the defendant in an action of false imprisonment was not permitted under the general issue to prove that the plaintiff was his slave." Quincy's Reports, 30, note.
In September or October, 1773, an action was brought in the Inferior Court, in Essex, against Richard Greenleaf, of Newburyport, by Csar [Hendrick], a colored man, whom he claimed as his slave, for holding him in bondage. He laid the damages at fifty pounds. A letter from Newburyport, October 10th, says, "We have lately had our Court week when the novel case of Csar against his master in an action of fifty pounds lawful money damages for detaining him in slavery was litigated before a jury of the County, who found for the plaintiff eighteen pounds damages and costs." John Lowell, Esq., afterward Judge Lowell, was counsel for the plaintiff. Coffin's Newbury, 241, 339.
Nathan Dane notices this case in his Abridgment and Digest of American Law. He says:
​"As early as 1773, many negroes claimed their freedom, and brought actions of trespass against their masters for restraining them. A. D. 1773, one Csar brought trespass against his master, and declared that he, with force and arms, assaulted the plaintiff and imprisoned him, and so with force and arms against the plaintiff's will, hath there held, kept, and restrained him in servitude, as the said G.'s slave, for so long a time, etc.
"In this case the master protested the plaintiff was his mulatto slave, and that he, the master, was not held by law to answer him; but for plea the master said he was not guilty. The parties agreed any special matter might be given in evidence, etc. Counsel, Farnham and Lowell." Dane's Abridgment, II., 426.
Another case is mentioned as "brought on at the Inferior Court of Common Pleas for the County of Essex for July term [1774], between Mr. Caleb Dodge of Beverly, and his negro servant, 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 serve for life." The Watchman's Alarm, etc., p. 28, note. Yet the writer of this pamphlet suggested the "abolishing of this vile custom of slave-making, either by a law of the province, Common Law, (which I am told has happily succeeded in many instances of late) or by a voluntary releasement." Ibid., p. 27.
Mr. Dane also refers to the case of Cæsar vs. Taylor, and gives the following view of the subject generally:
"In these cases there seem to have been doubts ​if slavery existed in Massachusetts; the causes were generally argued on general principles; the masters urged, in support of slavery, the practice of ancient and some modern nations; also the Provincial Statutes of 10 W. 3., ch. 6.; 1 & 2 Anne, ch. 2.; and 4 & 5 Anne, ch. 6.
"The plaintiffs argued that by English Law, slavery could not exist, and that we had nothing to do with any other, except the Provincial Statutes; that if these established slavery, 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 otherwise by the civil law, which England, in this case, had never adopted; that marriage and providing for children was a right and a duty which only free persons could perform; that the Gospel forbid men to sell their brethren; and that the plaintiffs were Christians, and, if held in slavery, could not perform their Christian duties; that even villainage is abolished by English law, and that the common law abhorred slavery. But it was admitted by the plaintiff's counsel, that slavery might be established by express law; and the defendants urged, and it seems long to have been understood, that the Provincial Statutes did expressly recognize and establish slavery, as in the cases above stated, and in many others.
"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." Dane's Abridgment, II., 426–7.
Chief-Justice Parsons also, in the cafe of Winchendon vs. Hatfield in error, confirms this view.
"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." IV Mass. Reports, 128.
The reference by the Chief-Justice to the circumstance that these negroes litigant were "born in this country," points to the question, whether hereditary slavery was legal in Massachusetts? which is also touched in the previous reference by the counsel for the slaves, as stated 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 these suits, says, "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." M. H. S. Coll, I., iv., 203.
How far the arguments here noticed were urged in these various suits, and whether in any of them these points were judicially stated and determined, we are unable to say. We have previously examined the legal history of hereditary slavery in Massachusetts; and it may be proper in this connection to add something with respect to the other pleas mentioned by Belknap. And first, the alleged rights of the Indians and Negroes under the royal charter, and laws of England. The provision referred to is substantially the same in both Colony and Province charters, and is in the words following, viz:
"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 preamble to the Body of Liberties in 1641, which declares the civil privileges of the inhabitants of the Colony, might also have been referred to in this ​line of argument. Still, it is a historical fact that the guaranties of the royal charters, and the Common Law of England as a personal law of privilege, did not extend to Aliens, Negroes, or Indians.
The other plea, "that the laws of the province respecting an evil existing, and attempting to mitigate or regulate it did not authorize it," could avail nothing against the other stern historical fact that slavery existed in Massachusetts "by virtue and equity of an express Law of the Country warranting the same, establifhed by a General Court, and sufficiently published; or in case of the defect of a Law in any particular case, by the word of God, … to be judged by the General Court." Was it said that the colony-law was annulled with the Charter, by the authority of which it was made? Still the usage had prevailed and acquired force as the common law of the Province. The validity of the judgment against the Charter in 1684, which was denied by the House of Commons, and "questioned by very great authority in England," was never admitted in Massachusetts. 9 Gray, 517. There was nothing in the repeal of the Colony charter to affect the private rights of the colonists. Ibid., 518. And generally the rights of the inhabitants, as well as the penalties to which they might be subjected, continued to be determined by the effect and according to the form of the colonial and provincial legislation, i. e. the common law of Massachusetts, rather than by ​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 arguments in these suits, or the opinions which influenced their various results; the fact remains that, although "the bonds of slavery" may have been "loosened" by these proceedings, and "the verdicts of juries in favor of liberty," the legal effect of such verdicts reached none but the parties immediately concerned; and the institution of slavery continued to be recognized by law in Massachusetts, defying all direct attempts to destroy it.
The question however had been raised, and slavery was challenged. Dr. Belknap. says, that "the controversy began about the year 1766." M. H. S. Coll. I., iv.. 201. We shall endeavor to indicate the principal features of its progress in their just relations, without disparagement and without exaggeration.
The town of Worcester, by instructions in 1765, required 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." Boston News-Letter, June 4, 1765, quoted by Buckingham, Newspaper Literature, I., 31.
The town of Boston, in May, 1766, instructed their Representatives as follows, viz.: "And for the total abolishing of slavery among us, that you move for a law to prohibit the importation and the pur​chasing of slaves 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 question came up, as to whether the Town would adhere to that part of its Instructions, and it passed in the affirmative. Drake's Boston, 728–9. It is also said, though probably true of a later period only, that "In some of the country towns they voted to have no slaves among them, and that their masters be indemnified from any expence, [after they had granted them freedom] that might arise by reason of their age, infirmities, or inability to support themselves." Letter of Mr. Thomas Pemberton to Dr. Jeremy Belknap, Boston, Mch. 12, 1795.
In 1767, an anonymous tract of twenty octavo pages against slavery made its appearance. It was entitled "Considerations on Slavery, in a Letter to a Friend." It was written by Nathaniel Appleton, a merchant of Boston, afterwards a member of the first Committee of Correspondence and a zealous patriot during the Revolutionary struggle. Appleton Memorial, 36.
On March 2d, 1769, the reverend Samuel Webster of Salisbury, Massachusetts, published "an earnest address to my country on slavery." An extract is given by Mr. Coffin in his History of Newbury, p. 338.
​James Swan, "a Scotsman," and merchant in Boston, published "A Dissuasion to Great Britain and the Colonies, from the Slave-Trade to Africa—shewing the Injustice thereof, etc." It seems to have been in "the form of a sermon," and the writer was apparently better satisfied with a second edition revised and abridged, which he put forth in 1773, at the earnest defire of the Negroes in Boston, in order to answer the purpose of sending a copy to each town.
In 1767, the first movement was made in the Legislature to procure the passage of an act against slavery and the slave-trade.
On the 13th March, a bill was brought into the House of Representatives "to prevent the unwarrantable and unusual Practice or Custom of inslaving Mankind in this Province, and the importation of slaves into the same." It was read a first time, and the question was moved, whether a second reading be referred to the next session of the General Court? which was passed in the negative. Then it was moved, that a clause be brought into the bill, for a limitation to a certain time, and the question being put, it passed 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 unwarrantable and unnatural Practice," etc., was read a second time, and the question was put whether the third reading be referred to the next May session? This passed in the negative, and it was ordered that the Bill be read a third time on Monday next at three o'clock. Ibid., 390.
​On the 16th, "The Bill for preventing the unnatural and unwarrantable Custom of enslaving Mankind in this Province, and the Importation of Slaves into the Same, was Read according to order, and, after a Debate,
"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." Ibid., 393.
On the 17th, a Bill for laying a Duty of Impost upon the Importation of Slaves into this Province was read a first and second 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 Impost on the Importation of Negro and other Slaves, was read a third time, and the question was put, whether the enacting this bill should be referred to the next May session, that the Minds of the Country may be known thereupon? Passed in the Negative. Then the Question was put, Whether a clause shall be bro't in to limit the Continuance of the Act to the Term of one year? Passed in the Affirmative, and Ordered, that the Bill be recommitted." Ibid., 411. In the afternoon of the same day, the bill was read with the amendment, and having passed to be engrossed, was "sent up by Col. Bowers, Col. Gerrish, Col. Leonard, Capt. Thayer, and Col. Richmond." Ibid., 411.
The bill was read a first time in the Council on the 19th of March, and on the 20th was read a second time and passed to be engrossed "as taken into a new draft." On being sent down to the House of Repre​sentatives 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." Ibid. Compare Gen. Court Records, May 1763 to May 1767, p. 485.
And thus the bill disappeared and was lost. It was the nearest approach to an attempt to abolish slavery, within our knowledge, in all the Colonial and Provincial legislation of Massachusetts. The bills against the importation of slaves cannot justly be regarded as direct attempts to abolish the institution of slavery, whatever may have been the motives which influenced the action concerning them. The bill itself of 1767 has not been found, and it is not unlikely that its provisions may have been less positive and stringent than its title, which is the chief authority for what little anti-slavery reputation it enjoys. Could it be recovered, it might illuminate the record we have given, and throw much light on the subject generally. It is apparent from the record that whatever may have been the height to which the zeal of anti-slavery had carried the agitation of the subject on this occasion, it was duly "ordered, that the Matter subside;" so that it was only an Impost Avt which finally tried to struggle forth into existence, and perished in the effort. If indeed it was an attempt at abolition, the failure was so signal and decisive that it was not renewed until ten years afterward, when, as we shall see, it failed again.
​That terror of insurrection, so often and aptly illustrated in the common phrase of "sleeping over a volcano," that continuous and awful dread which conscious tyranny feels, but hates to acknowledge, we have already said, was not unknown even in Massachusetts, where the servile class was always a comparatively small element of the population. In times of civil commotion and popular excitement, the danger was more imminent, and the fear was more freely expressed.
During the difficulties between the people of the town of Boston and the British soldiers in 1768, John Wilson, a captain in the 59th 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." He was arrested on the complaint of the selectmen, and was bound over for trial; "but, owing to the manœuvres of the Attorney-General, the indictment was quashed, and Wilson left the Province about the same time." Drake's Boston, 754.
There was a similar alarm in September, 1774. It is noticed in one of the letters of Mrs. John Adams to her husband, dated at Boston Garrison, 22d September, 1774.
"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 pe​tition 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." Adams Letters, I., 24.
In 1771, the subject of the Slave-Trade was again introduced into the Legislature. On the 12th April, in that year, a bill "to prevent the Importation of Slaves from Africa" was read the first time and ordered to a second reading on the following day at ten o'clock. Journal, 211. On the 13th, the bill was read the second time, and the further consideration was postponed till the following Tuesday morning. Ibid., 215. On the 16th the bill was re-committed. Ibid., 219.
On the 19th, a "Bill to prevent the Importation of Negro Slaves into this Province" was read the first time and ordered a second reading "to-morrow at eleven o'clock." Ibid., 234. On the 20th, it was "read a second time and ordered to be read again on Monday next, at Three o'clock." On the 22d, it ​was read the third time, and passed to be engrossed. Ibid., 236. On the 24th, it was read and passed to be enacted. Ibid., 240.
It was duly sent to the Council for concurrence, and on the same day, "James Otis, Esq., came down from the honorable Board, to propose an Amendment on the engrossed bill for preventing the Importation of Slaves from Africa, and laid the Bill on the Table;" whereupon "The House took the proposed Amendment into consideration, and concur'd with the honorable Board therein, then the Bill was sent up to the honorable Board." Ibid., 242–3.
We have been unable to procure any record of the doings of the Council on the subject, excepting the following entry in the Records of the General Court:
"Wednesday, April 24, 1771, etc. etc. An Engrossed Bill intituled 'An Act to prevent the Importation of Negro Slaves into this Province' having passed the House of Representatives to be Enacted. In Council, Read a third time and passed a concurrence to be enacted."
This act failed to obtain the approval of Governor Hutchinson, and we are fortunately able to present his views on the subject, as communicated to Lord Hillsborough, Secretary of State for the Colonies, in a letter dated May, 1771.
"The Bill which prohibited the importation of Negro Slaves appeared to me to come within his Majesty's Instruction to Sir Francis Bernard, which restrains the Governor from Assenting to any Laws of a new and unusual nature. I doubted besides ​whether the chief motive to this Bill which, it is said, was a scruple upon the minds of the People in many parts of the Province of the lawfulness, in a meerly moral respect, of so great a restraint of Liberty, was well founded, slavery by the Provincial Laws giving no right to the life of the servant and a slave here considered as a Servant would be who had bound himself for a term of years exceeding the ordinary term of human life, and I do not know that it has been determined he may not have a Property in Goods, notwithstanding he is called a Slave.
"I have reason to think that these three bills will be again offered to me in another Session, I having intimated that I would transmit them to England that I might know his Majefty's pleasure concerning them." 27 Mass. Archives, 159–60.
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 agreements 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 dispofition 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.
In 1773, the attempt to discourage the slave-trade was renewed. The representatives from Salem had been instructed, May 18, 1773, to use their exertions to prevent the importation of negroes into Massachusetts "as repugnant to the natural rights of mankind, and highly prejudicial to the Province." Felt, Annals, II., 416. The town of Medford also directed their member to "use his utmost influence to have a final period put to that most cruel, inhuman and unchristian practice, the slave-trade." Swan's Dissuasion, etc., Revised Ed., 1773, p. x. The town of Leicester, May 19, 1773, instructed their representative on this subject, as follows:
"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 may be 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 in all your other important undertakings." Washburn's Leicester, 442.
The town of Sandwich, in Barnstable County, voted, May 18, 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 years of age." Freeman's History of Cape Cod, II., 114.
There may have been other towns in which similar ​measures were taken to influence the action of the Legislature, but we have no knowledge of any beyond those already noticed. The negroes themselves also began to move in the matter, encouraged by the "spirit of liberty which was rife in the land."
On the 25th June, 1773, in the afternoon session of the House of Representatives, a petition was read "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." Upon this it was "ordered, that Mr. Hancock, Mr. Greenleaf, Mr. Adams, Capt. Dix, Mr. Paine, Capt. Heath, and Mr. Pickering confider this Petition, and report what may be proper to be done." Journal, p. 85.
This "Committee on the Petition of Felix Holbrook, and others, in behalf of themselves and others; praying to be liberated from a State of Slavery, reported" on the 28th June, 1773, P.M., "that the further Consideration of the Petition be referred till next Session," and it was so referred accordingly. Ibid, 94.
Among other indications of the growing interest in the subject, is the fact that at the annual commencement of Harvard College, Cambridge, July 21, 1773, a forensic disputation on the legality of enslaving the Africans was held by two candidates for the bachelor's degree; namely, Theodore Parsons and Eliphalet Pearson, both of whom were natives of Newbury​The question was "whether the slavery, to which Africans are in this province, by the permission of law, subjected, be agreeable to the law of nature?" The work was published at Boston, the same year, in an octavo pamphlet of forty-eight pages. Coffin's Newbury, 339.
The following letter also shows that the business before the Legislature was not wholly neglected or forgotten during the interval between the sessions.
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 confider 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.
On the 26th January, 1774, P.M., "a 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. Paine, and Mr. Greenleaf consider the fame and report." Journal, 104.
All this preliminary preparation resulted at length in "a Bill to prevent the Importation of Negroes and others as Slaves into this Province," which was read the first time on the 2d March, 1774, and ordered to be read again the next day. Ibid., 221. On the 3d, it was read the second time in the morning, and in the afternoon the third time, and passed to be engrossed, when it was sent up to the Council Board for concurrence, by Col. Gerrish, Col. Thayer, Col. Bowers, Mr. Pickering, and Col. Bacon. Ibid., 224. On the 4th March, the bill was returned as "passed in Council with Amendments." Ibid., 226. On the 5th, the House voted to concur with the Council, ibid., 228; and on the 7th, passed the bill to be enacted. ibid., 237. On the 8th, it received the final sanction of the Council, and only required the approval of the Governor to become a law. That approval, however, it failed to obtain; the only reason given in the record being "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." Ibid., 243. Compare also for Council proceedings, General Court Records, XXX., 248, 264.
To this history, derived from the records, we are fortunately able to add a copy of the Bill itself, which is preserved in the Mass. Archives, Domestic Relations, 1643–1774, Vol. 9, 457.
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 whosoever 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 dispoved 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 fame; 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.
∀ 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 a Concurrence to be Engrossed with the Amendment at ∀ 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.
That portion of the title to the bill which we have ​italicized is stricken out in the original. We have also retained and italicized the clause which was stricken out by the amendment of the Council. They form a part of the history of the bill, though not of the bill itself as "passed to be enacted."
Such was the response of the Great and General Court of Massachusetts to the petition of her negro-slaves in 1773–4. They prayed that they might be "liberated from a State of Bondage, and made Freemen of the 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." Not one of their prayers was answered. It would seem that an attempt was made to include in the bill, an indirect legislative approval of some of the doctrines maintained by Counsel for the negroes in the "freedom suits;" but even this failed; and a prohibitory act against the importation of slaves was offered to the Governor for his approval, which it was known beforehand could not be obtained.
Whether Hutchinson had actually received an instruction from the Crown on the subject at this time or not, there is no room for doubt as to the general policy of Great Britain. She had aided her colonial offspring to become slaveholders; she had encouraged her merchants in tempting them to acquire slaves; she herself excelled all her competitors in slave-stealing; and from the reign of Queen Anne, the slave-trade was among her most envied and cherished monopolies, its protection and increase being a princi​pal feature in her commercial policy. The great "distinction" of the Treaty of Utrecht, as the Queen expressly called it, was that the Assiento or Contract for furnishing the Spanish West Indies with Negroes, should be made with England, for the term of thirty years, in the same manner as it had been enjoyed by the French for ten years before. Queen's Speech, 6 June, 1712.
This was what her great statesmen and divines of the Church of England were so eager and proud to secure for their country! 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! Compare Macknight's Bolingbroke, 346–8. Who will wonder that men who had thus been taught to believe "that the Negro-Trade on the Coast of Africa was the chief and fundamental support of the British Colonies and Plantations" in America, should frown upon legislation in the colonies so utterly inconsistent with the interests of British Commerce, or that the ​modest efforts of Massachusetts in 1774, should be met by Hutchinson and Gage with the same spirit which, in 1775, dictated the reply of the Earl of Dartmouth to the earnest remonstrance of the Agent of Jamaica against the policy of the government: "We cannot allow the colonies to check or discourage, in any manner, a traffic so beneficial to the nation." Bridges' Jamaica, II., 475. Notes.
We cannot be accused of belittling the resistance thus presented to any colonial interference with the slave-trade, when we express our regret that the legislative annals of Massachusetts record no attempt to repeal the local laws by which slavery had been established, regulated, and maintained. Such a measure, which should also have granted the relief prayed for by the negroes in their petition, and embodied the wise suggestions of the town of Leicester (ante, p. 133), might well have encountered less serious opposition from the servants of the Crown than this twice-rejected non-importation act of 1774.
In the brief session of the General Court at Salem, in June, 1774, after Hutchinson's successpr, Gage, the last Royal Governor, had commenced his administration, the same bill substantially, for the variations are unimportant, was hurried through the forms of legislation. It was introduced, read a first, second, and third time, and passed to be engrossed on the same day, ​10th June. Journal, 27. On the 16th, the engrossed bill was read and passed to be enacted. Ibid., 41. In the Council, on the same day, it was read a third time and passed a concurrence to be enacted. Gen. Court Records, XXX., 322. On the following day, June 17th, the General Court was dissolved. Like that of which it was a copy, the bill appears "not to have been consented to by the Governor."
The fact is not to be disguised that these efforts were political movements against the government as much as anything else. Sympathy for the slave, and moral scruples against slavery, became less urgent and troublesome after the royal negative had become powerless against the legislation of the people of Massachusetts. The fact that most of the States were slow or relaxed their efforts, after the power came into their hands, and they were "uncontrolled by the action of the Mother Country," would not diminish the credit due to Massachusetts, if she had taken the lead and maintained it. But that honor is not hers! Nor did the separate action of any of the States effectually limit, much less destroy, this infamous traffic.
The Continental Association, adopted and signed by all the members of the Congress on the 20th of October, 1774, for carrying into effect the non-importation, non-consumption, and non-exportation resolve of the 27th of September, provided for the discontinuance of the Slave-Trade. The Continental Congress, on the 6th of April, 1776, formally "Resolved, That no slave be imported into any of the thirteen United Colonies." There is reason to be​ieve that this resolution received the unanimous assent of the Congress. Force's Dec. of Independence, p. 42. But no provision was made in the Articles of Confederation to hinder the importation of slaves, and this pernicious commerce was never absolutely crushed until the power of the nation was exercised against it under the authority of the Constitution.
Slavery, however, was not forgotten or neglected for want of notice. In the first Provincial Congress of Massachusetts, October 25, 1774,
"Mr. Wheeler brought into Congress a letter directed to Doct. Appleton, purporting the propriety, that while we are attempting to free ourselves from our present embarrassments, and preserve ourselves from slavery, that we also take into consideration the state and circumstances of the negro slaves in this province. The same was read, and it was moved that a Committee be appointed to take the same into consideration. After some debate thereon, the question was put, whether the matter now subside, and it passed in the affirmative." Journals, 29.
In May, 1775, the Committee of Safety (Hancock and Warren's Committee) came to a formal resolution, which is certainly one of the most significant documents of the period.
"Resolved, That it is the opinion of this Committee, as the contest now between Great Britain and the Colonies respects the liberties and privileges of the latter, which the Colonies are determined to maintain, that the admission of any persons, as soldiers, into the army now raising, but only such as are freemen, will be inconsistent with the principles that ​are to be supported, and reflect dishonor on this Colony, and that no slaves be admitted into this army upon any consideration whatever."
This resolution being communicated to the Provincial Congress (June 6, 1775), was read, and ordered to lie on the table for further consideration. It was probably allowed to "subside," like the former proposition. The prohibition against the admission of slaves into the Massachusetts Army clearly recognizes slavery as an existing institution.
The negroes of Bristol and Worcester having petitioned the Committee of Correspondence of the latter county to assist them in obtaining their freedom, it was resolved, in a Convention held at Worcester, June 14, 1775, "That we abhor the enslaving of any of the human race, and particularly of the negroes in this country, and that whenever there shall be a door opened, or opportunity present for anything to be done towards the emancipation of the negroes, we will use our influence and endeavor that such a thing may be brought about." Lincoln's Hist. of Worcester, 110.
The high tory writers of 1775 were not slow to avail themselves of the argument of inconsistency against the whigs of the day. One writer said:
"Negroe slaves in Boston! It cannot be! It is nevertheless very true. For though the Bostonians have grounded their rebellions on the 'immutable laws of nature,' and have resolved in their Town Meetings, that 'It is the first principle in civil society, founded in nature and reason, that no law of society can be binding on any individual, without his consent given by himself ​in person, or by his representative of his own free election; yet, notwithstanding the immutable laws of nature, and this public resolution of their own in Town Meetings, they actually have in town two thousand Negroe slaves, who neither by themselves in person, nor by representatives of their own free election ever gave consent to their present state of bondage." Mein's Sagittarius's Letters, pp. 38, 39.
On June 5th, 1774, two discourfes on liberty were delivered at the North Church in Newburyport, by Nathaniel Niles, M.A.,—which were printed in a pamphlet of sixty pages. A brief passage near the close of the first discourfe presents a strong argument against the institution. pp. 37, 38.
In 1774, Deacon Benjamin Colman, of Byfield Church, Newbury, Massachusetts, made himself conspicuous in his neighborhood by his exertions against slavery. In the Essex Journal, of Newburyport, July 20, 1774, an essay of his was published, in which he says:
"And this iniquity is established by law in this province, and although there have been some feeble attempts made to break the yoke and set them at liberty, yet the thing is not effected, but they are still kept under the civil yoke of bondage." Coffin's Newbury, 340.
In the following year, Sept. 16, 1775, the same zealous deacon addressed a letter to a member of the General Court, "by whom (he thought) this idolatry should be thrown down, and a reformation take place by the authority of that legislative power." His appeals to the love of freedom, which was then the ​cry of the whole land, are most forcible, and his strong fears of the further judgments of God as a consequence of this "capital sin of these States," slavery, are full of warning. He concludes with the following paragraph, which is not less interesting in this connection from the special reference to Boston—in his pious improvement of an important fact already set forth in these Notes:
"But, Sir, you may be ready too hastily to conclude from this writing that my mind is so fastened upon the slave-trade, as if it were the only crime that we were chargeable with, or that God was chastening us for. As I have said before, so say I again, our transgressions are multiplied, but yet this crime is more particularly pointed at than any other. Was Boston the first port on this Continent that began the slave-trade, and are they not the first shut up by an oppressive act, and brought almost to desolation, wherefore, Sir, though we may not be peremptory in applying the judgments of God, yet I cannot pass over Such providences without a remark. But to conclude. I entreat and beseech you by all the love you have for this town, by all the regard you have for this distressed, bleeding province, as for the American Colonies in general, that you exert yourself, and improve your utmost endeavors at the Court to obtain a discharge for the slaves from their bondage. If this was done, I should expect speedy deliverance to arise to us, but if this oppression is still continued and maintained by authority, I can only say, my soul shall weep in secret places for that crime." Ibid., 342.
* ↑ If any of these decisions in Massachusetts sustained the claims for wages, they are in strong contrast with the highest English authority of the period. Many actions were brought in the English Courts, by negro slaves against their masters for wages; but Lord Mansfield, the great oracle of the Common Law, was accustomed to deal very summarily with them. He has left a very emphatic record on this point: "When slaves have been brought here, and have commenced actions for their wages, I have always nonsuited the plaintiff." The King v. the Inhabitants of Thames Ditton. 4 Doug., 300.
* ↑ The absurdity of the claim set up for Massachusetts is not diminished by the fact that no case in the history of English Law has been more misunderstood and misrepresented than the Somerset case itself. Thirteen years later (27 April, 1785), Lord Mansfield himself stated expressly "that his decision went no farther than that the master cannot by force compel the slave to go out of the Kingdom." At the same time he also said, with reference to the alleged extinction of villenage, "villains in gross may in point of law subsist at this day. But the change of customs and manners has effectually abolished them in point of fact." The King v. The Inhabitants of Thames Ditton, 4 Doug., 300. In the same year, the same great exponent of English Law expressly recognized property in slaves on board a slave-trader, in an action on a policy of assurance. The demand on the policy was for the loss of a great many slaves by mutiny. Jones vs. Schmoll, 1 Term Reports, 130, note. Add to all this the notorious favts that slaves were bought and sold in England long after the time when it has been alleged that "Lord Mansfield first established the grand doctrine that the air of England is too pure to be breathed by a slave;" that it was not until 1807 that she abolished her slave-trade, and twenty-seven weary years more elapsed before she set her slaves free in her colonies; and we can, without referring to the earlier history of her royal and parliamentary, national and individual patronage of slavery and the slave-trade, or her cowardly sympathy with the slaveholders' rebellion, estimate the value of Earl Russell's recent declaration, that Great Britain has always been hostile to slavery. "The British nation have always entertained, and still entertain, the deepest abhorrence of laws by which men of one color were made slaves of men of another color. The efforts by which the United States Government and Congress have shaken off slavery have, therefore, the warmest sympathies of the people of these Kingdoms." Earl Russell to Mr. Adams, August 20, 1865. No language or history within our knowledge furnishes fit epithet or parallel for such consummate hypocrisy and reckless disregard of the truth of history. It would be an insult to the "historic fame" of that unhappy Jewish sect to refer to the Pharisees. Perhaps it is enough to say it is the empty "palaver" of a British Prime Minister!
* ↑ See Hurd's Law of Freedom and Bondage in the United States, Vol. I., pp. 196, 197, 201: a perfect treasure-house of law and history on its subject, for which every student of American History owes him a large debt of gratitude.
* ↑ The reader will note the coincidence of this proceeding with that in the Legislature on the same day, when it was "Ordered, that the Matter subside." See post, p. 127.
* ↑ The reader will see hereafter, in the frequent use of this parliamentary phrase by the Legislature of Massachusetts, that an order to "subside" continued to be their favorite method of reducing anti-slavery inflammation.
* ↑ Brigadier-General the Right Honorable Hugh, Earl Percy, afterwards Duke of Northumberland, was Colonel of the 5th Regiment, or Northumberland Fusileers, at that time stationed in Boston.
* ↑ The other two bills were a Marine Corporation Bill and a Salem Militia Bill.
* ↑ The General Court was prorogued March 9th, and dissolved March 30th, 1774. General Court Records, XXX., 280–81.
* ↑ By the articles of the Grand Alliance, England and all the other states subscribing them were pledged neither to enter into any separate treaty with the enemy, nor seek to negotiate for themselves any exceptional privilege to the exclusion of the other members of the Confederacy. Of course this obligation was totally disregarded by England, who insisted on the concession of the Assiento Contract by France and Spain before the proposals for peace were even communicated to the rest of the Allies!
* ↑ The rhetorical flourishes with which Lord Mansfield ornamented his decision in the famous case of Somerset would have furnished an excellent preamble to such an act. The case was well known in Massachusetts, having been reprinted more than once. But the General Court of Massachusetts had no more intention than Lord Mansfield had power to abolish slavery at that period.