George W. Williams.

History of the Negro Race in America From 1619 to 1880. Vol 1 Negroes as Slaves, as Soldiers, and as Citizens online

. (page 21 of 57)
Font size
QR-code for this ebook

this year, on the 26th of February, that the slave-ship "Desire"
landed a cargo of Negroes in the colony. Now, if Mr. Palfrey relies
upon Josselyn for the historical trustworthiness of his statement that
there were two Negroes in Massachusetts before Winthrop arrived, he
has made a mistake. There is no proof for the assertion. That there
were three Negroes on Noddle's Island, we have the authority of
Josselyn, but nothing more. And if the Negro queen who kicked
Josselyn's man out of bed had been as long in the island as Palfrey
and Washburn indicate, she would have been able to explain her grief
to Josselyn in English. We have no doubt but what Mr. Maverick got his
slaves from the ship "Desire" in 1638, the same year Winthrop was
inaugurated governor.

In Massachusetts, as in the other colonies, slavery made its way into
individual families first; thence into communities, where it was
clothed with the garment of usage and custom;[276] and, finally, men
longing to enjoy the fruit of unrequited labor gave it the sanction of
statutory law. There was not so great a demand for slaves in
Massachusetts as in the Southern States; and yet they had their uses
in a domestic way, and were, consequently, sought after. As early as
1641 Massachusetts adopted a body of fundamental laws. The
magistrates,[277] armed with authority from the crown of Great
Britain, had long exercised a power which well-nigh trenched upon the
personal rights of the people. The latter desired a revision of the
laws, and such modifications of the power and discretion of the
magistrates as would be in sympathy with the spirit of personal
liberty that pervaded the minds of the colonists. But while the people
sought to wrest an arbitrary power from the unwilling hands of their
judges, they found no pity in their hearts for the poor Negroes in
their midst, who, having served as slaves because of their numerical
weakness and the passive silence of justice, were now to become the
legal and statutory vassals - for their life-time - of a liberty-loving
and liberty-seeking people! In the famous "Body of Liberties" is to be
found the first statute establishing slavery in the United States. It
is as follows: -

"It is ordered by this court, and the authority thereof;
that there shall never be any bond slavery, villainage or
captivity amongst us, unless it be lawful captives taken in
just wars, as willingly sell themselves or are sold to us,
and such shall have the liberties and christian usage which
the law of God established in Israel concerning such persons
doth morally require; provided this exempts none from
servitude, who shall be judged thereto by authority."[278]

We have omitted the old spelling, but none of the words, as they
appeared in the original manuscript. There isn't the shadow of a doubt
but what this law has been preserved inviolate.[279]

There has been considerable discussion about the real bearing of this
statute. Many zealous historians, in discussing it, have betrayed more
zeal for the good name of the Commonwealth than for the truth of
history. Able lawyers - and some of them still survive - have
maintained, with a greater show of learning than of facts, that this
statute abolished slavery in Massachusetts. But, on the other hand,
there are countless lawyers who pronounce it a plain and unmistakable
law, "creating and establishing slavery." An examination of the
statute will help the reader to a clear understanding of it. To begin
with, this law received its being from the existent _fact_ of slavery
in the colony. From the practice of a few holding Negroes as slaves,
it became general and prodigious. Its presence in society called for
lawful regulations concerning it. While it is solemnly declared "that
there shall never be any bond slavery, villianage, or captivity" in
the colony, there were three provisos; viz., "lawful captives taken in
just wares," those who would "sell themselves or are sold to us," and
such as "shall be judged thereto by authority." Under the foregoing
conditions slavery was plainly established in Massachusetts. The "just
wares" were the wars against the Pequod Indians. That these were made
prisoners and slaves, we have the universal testimony of all writers
on the history of Massachusetts. Just what class of people would "sell
themselves" into slavery we are at a loss to know! We can, however,
understand the meaning of the words, "or are sold to us." This was an
open door for the traffic in human beings; for it made it lawful for
to sell slaves to the colonists, and lawful for the latter to
purchase them. Those who were "judged thereto by authority" were those
in slavery already and such as should come into the colony by
shipping.

This statute is wide enough to drive a load of hay through. It is not
the work of a novice, but the labored and skilful product of great law
learning.

"The law must be interpreted in the light of contemporaneous
facts of history. At the time it was made (1641), what had
its authors to provide for?

"1. Indian slaves - their captives taken in war.

"2. Negro slaves - their own importations of 'strangers,'
obtained by purchase or exchange.

"3. Criminals - condemned to slavery as a punishment for
offences.

"In this light, and only in this light, is their legislation
intelligible and consistent. It is very true that the code
of which this law is a part 'exhibits throughout the hand of
the practised lawyer, familiar with the principles and
securities of English Liberty;' but who had ever heard, at
that time, of the 'common-law rights' of Indians and
Negroes, or anybody else but Englishmen?

"Thus stood the statute through the whole colonial period,
and it was never expressly repealed. Based on the Mosaic
code, it is an absolute recognition of slavery as a
legitimate status, and of the right of one man to sell
himself as well as that of another man to buy him. It
sanctions the slave-trade, and the perpetual bondage of
Indians and Negroes, their children and their children's
children, and entitles Massachusetts to precedence over any
and all the other colonies in similar legislation. It
anticipates by many years any thing of the sort to be found
in the statutes of Virginia, or Maryland, or South Carolina,
and nothing like it is to be found in the contemporary codes
of her sister colonies in New England."[280]

The subject had been carefully weighed; and, lacking authority for
legalizing a crime against man, the Mosaic code was cited, and in
accordance with its _humane_ provisions, slaves were to be treated.
But it was _authority_ for slavery that the cunning lawyer who drew
the statute was seeking, and not precedents to determine the kind of
treatment to be bestowed upon the slave. Under it "human slavery
existed for nearly a century and a half without serious
challenge;"[281] and here, as well as in Virginia, it received the
sanction of the Church and courts. It grew with its growth, and
strengthened with its strength; until, as an organic institution, it
had many defenders and few apologists.[282]

"This article gives express sanction to the slave-trade, and
the practice of holding Negroes and Indians in perpetual
bondage, anticipating by many years any thing of the sort
to be found in the statutes of Virginia or Maryland."[283]

And it is rather strange, in the light of this plain statute
establishing and legalizing the purchase of slaves, that Mr.
Washburn's statement, unsustained, should receive the public
indorsement of so learned a body as the Massachusetts Historical
Society!

"But, after all [says Mr. Washburn], the laws on this
subject, as well as the practice of the government, were
inconsistent and anomalous, indicating clearly, that whether
Colony or Province, so far as it felt free to follow its own
inclinations, uncontrolled by the action of the mother
country, Massachusetts was hostile to slavery as an
institution!"[284]

No doubt Massachusetts was "inconsistent" in seeking liberty for her
white citizens while forging legal chains for the Negro. And how far
the colony "felt free to follow its own inclinations" Chief-Justice
Parsons declares from the bench. Says that eminent jurist, -

"Slavery was introduced into this country [Massachusetts]
soon after its first settlement, and was tolerated until the
ratification of the present Constitution - of 1780."[285]

So here we find an eminent authority declaring that slavery followed
hard upon the heels of the Pilgrim Fathers, "and was tolerated" until
1780. Massachusetts "felt free" to tear from the iron grasp of the
imperious magistrates the liberties of the people, but doubtless felt
not "free" enough to blot out "the crime and folly of an evil time."
And yet for years lawyers and clergymen, orators and statesmen,
historians and critics, have stubbornly maintained, that, while
slavery did creep into the colony, and did exist, it was "not probably
by force of any law, for none such is found or known to
exist."(?)[286]

Slavery having been firmly established in Massachusetts, the next step
was to make it hereditary. This was done under the sanction of the
highest and most solemn forms of the courts of law. It is not our
purpose to give this subject the attention it merits, in this place;
but in a subsequent chapter it will receive due attention. We will,
however, say in passing, that it was the opinion of many lawyers in
the last century, some of whom served upon the bench in Massachusetts,
that children followed the condition of their mothers. Chief-Justice
Parsons held that "the issue of the female slave, according to the
maxim of the civil law, was the property of her master." And,
subsequently, Chief-Justice Parker rendered the following opinion: -

"The practice was ... to consider such issue as slaves, and
the property of the master of the parents, liable to be sold
and transferred like other chattels, and as assets in the
hands of executors and administrators.... We think there is
no doubt that, at any period of our history, the issue of a
slave husband and a free wife would have been declared free.
His children, if the issue of a marriage with a slave,
would, immediately on their birth, become the property of
his master, or of the master of the female slave."[287]

This decision is strengthened by the statement of Kendall in reference
to the wide-spread desire of Negro slaves to secure free Indian wives,
in order to insure the freedom of their children. He says, -

"While slavery was supposed to be maintainable by law in
Massachusetts, there was a particular temptation to Negroes
for taking Indian wives, the children of Indian women being
acknowledged to be free."[288]

We refer the reader, with perfect confidence, to our friend Dr. George
H. Moore, who, in his treatment of this particular feature of slavery
in Massachusetts, has, with great research, put down a number of
zealous friends of the colony who have denied, with great emphasis,
that any child was ever born into slavery there. Neither the opinion
of Chief-Justice Dana, nor the naked and barren assertions of
historians Palfrey, Sumner, and Washburn, - great though the men
were, - can dispose of the _historical reality of hereditary slavery in
Massachusetts_, down to the adoption of the Constitution of 1780.

The General Court of Massachusetts issued an order in 1645[289] for
the return of certain kidnapped or stolen Negroes to their native
country. It has been variously commented upon by historians and
orators. The story runs, that a number of ships, plying between
New-England seaport towns and Madeira and the Canaries, made it their
custom to call on the coast of Guinea "to trade for negroes." Thus
secured, they were disposed of in the slave-markets of Barbadoes and
the West Indies. The New-England slave-market did not demand a large
supply. Situated on a cold, bleak, and almost sterile coast,
Massachusetts lacked the conditions to make slave-trading as lucrative
as the Southern States; but, nevertheless, she disposed of quite a
number, as the reader will observe when we examine the first census. A
ship from the town of Boston consorted with "some Londoners" with the
object of gaining slaves. Mr. Bancroft[290] says that "upon the Lord's
day, invited the natives aboard one of their ships," and then made
prisoners of such as came; which is not mentioned by Hildreth.[291]
The latter writer says, that "on pretence of some quarrel with the
natives," landed a small cannon called a "murderer," attacked the
village on Sunday; and having burned the village, and killed many,
made a few prisoners. Several of these prisoners fell to the Boston
ship. On account of a disagreement between the captain and under
officers of the ship, as well as the owners, the story of the above
affair was detailed before a Boston court. Richard Saltonstall was one
of the magistrates before whom the case was tried. He was moved by the
recital of the cruel wrong done the Africans, and therefore
presented a petition to the court, charging the captain and
mate with the threefold crime of "murder," "man-stealing," and
"sabbath-breaking."[292]

It seems that by the Fundamental Laws, adopted by the people in 1641,
the first two offences were punishable by death, and all of them
"capitall, by the law of God." The court doubted its jurisdiction over
crimes committed on the distant coast of Guinea. But article
ninety-one of "The Body of Liberties" determined who were lawful
slaves, - those who sold themselves or were sold, "lawful captives
taken in just wares," and those "judged thereto by authority." Had the
unfortunate Negroes been purchased, there was no law in Massachusetts
to free them from their owners; but having been kidnapped, unlawfully
obtained, the court felt that it was its plain duty to bear witness
against the "sin of man-stealing." For, in the laws adopted in 1641,
among the "Capital Laws," at the latter part of article ninety-four is
the following: "If any man stealeth a man, or mankind, he shall surely
be put to death."[293] There is a marginal reference to Exod. xxi. 16.
Dr. Moore does not refer to this in his elaborate discussion of
statute on "bond slavery." And Winthrop says that the magistrates
decided that the Negroes, "having been procured not honestly by
purchase, but by the unlawful act of kidnaping," should be returned to
their native country. That there was a criminal code in the colony,
there can be no doubt; but we have searched for it in vain.
Hildreth[294] says it was printed in 1649, but that there is now no
copy extant.

The court issued an order about the return of the kidnapped Negroes,
which we will give in full, on account of its historical value, and
because of the difference of opinion concerning it.

"The general court conceiving themselves bound by the first
opportunity to bear witness against the heinous, and crying
sin of man-stealing, as also to prescribe such timely
redress for what is past, and such a law for the future, as
may sufficiently deter all others belonging to us to have to
do in such vile and odious courses, justly abhorred of all
good and just men, do order that the negro interpreter with
others unlawfully taken, be by the first opportunity at the
charge of the country for the present, sent to his native
country (Guinea) and a letter with him of the indignation of
the court thereabouts, and justice thereof, desiring our
honored governor would please put this order in
execution."[295]

This "protest against man-stealing" has adorned and flavored many an
oration on the "position of Massachusetts" on the slavery question. It
has been brought out "to point a moral and adorn a tale" by the proud
friends of the Commonwealth; but the law quoted above against
"man-stealing," the language of the "protest," the statute on "bond
servitude," and the practices of the colonists for many years
afterwards, prove that many have gloried, but not according to the
truth.[296] When it came to the question of damages, the court said:
"For the negars (they being none of his, _but stolen_) we thinke meete
to allow nothing."[297]

So the decision of the court was based upon law, - the prohibition
against "man-stealing." And it should not be forgotten that many of
the laws of the colony were modelled after the Mosaic code. It is
referred to, apologetically, in the statute of 1641; and no careful
student can fail to read between the lines the desire there expressed
to refer to the Old Testament as authority for slavery. Now, slaves
were purchased by Abraham, and the New-England "doctors of the law"
were unwilling to have slaves stolen when they could be bought[298] so
easily. Dr. Moore says, in reference to the decision, -

"In all the proceedings of the General Court on this
occasion, there is not a trace of anti-slavery opinion or
sentiment, still less of anti-slavery legislation; though
both have been repeatedly claimed for the honor of the
colony."[299]

And Dr. Moore is not alone in his opinion; for Mr. Hildreth says this
case "in which Saltonstall was concerned has been magnified by too
precipitate an admiration into a protest on the part of Massachusetts
against the African slave-trade. So far, however, from any such
protest being made, at the very birth of the foreign commerce of New
England the African slave-trade became a regular business."[300] There
is now, therefore, no room to doubt but what the decision was rendered
on a technical point of law, and not inspired by an anti-slavery
sentiment.

As an institution, slavery had at first a stunted growth in
Massachusetts, and did not increase its victims to any great extent
until near the close of the seventeenth century. But when it did begin
a perceptible growth, it made rapid and prodigious strides. In 1676
there were about two hundred slaves in the colony, and they were
chiefly from Guinea and Madagascar.[301] In 1680 Gov. Bradstreet, in
compliance with a request made by the home government, said that the
slave-trade was not carried on to any great extent. They were
introduced in small lots, and brought from ten to forty pounds apiece.
He thought the entire number in the colony would not reach more than
one hundred and twenty-five. Few were born in the colony, and none had
been baptized up to that time.[302] The year 1700 witnessed an
unprecedented growth in the slave-trade. From the 24th of January,
1698, to the 25th of December, 1707,[303] two hundred Negroes were
imported into the colony, - quite as many as in the previous sixty
years. In 1708 Gov. Dudley's report to the board of trade fixed the
number of Negroes at five hundred and fifty, and suggested that they
were not so desirable as white servants, who could be used in the
army, and in time of peace turn their attention to planting. The
prohibition against the Negro politically and in a military sense, in
that section of the country, made him almost valueless to the colonial
government struggling for deliverance from the cruel laws of the
mother country. The white servant could join the "minute-men," plough
with his gun on his back, go to the church, and, having received the
blessing of the parish minister, could hasten to battle with the proud
and almost boastful feelings of a Christian freeman! But the Negro,
bond and free, was excluded from all these sacred privileges. Wronged,
robbed of his freedom, - the heritage of all human kind, - he was
suspicioned and contemned for desiring that great boon. On the 17th of
February, 1720, Gov. Shute placed the number of slaves - including a
few Indians - in Massachusetts at two thousand. During the same year
thirty-seven males and sixteen females were imported into the
colony.[304] We are unable to discover whether these were counted in
the enumeration furnished by Gov. Shute or not. We are inclined to
think they were included. In 1735 there were two thousand six
hundred[305] bond and free in the colony; and within the next
seventeen years the Negro population of Boston alone reached
1,541.[306]

In 1754 the colonial government found it necessary to establish a
system of taxation. Gov. Shirley was required to inform the House of
Representatives as to the different kinds of taxable property. And
from a clause in his message, Nov. 19, 1754, on the one hundred and
nineteenth page of the Journal, we infer two things; viz., that slaves
were chattels or real estate, and, therefore, taxable. The governor
says, "There is one part of the Estate, viz., the Negro slaves, which
I am at a loss how to come at the knowledge of, without your
assistance." In accordance with the request for assistance on this
matter, the Legislature instructed the assessors of each town and
district within the colony to secure a correct list of all Negro
slaves, male and female, from sixteen years old and upwards, to be
deposited in the office of the secretary of state.[307] The result of
this enumeration was rather surprising; as it fixed the Negro
population at 4,489, - quite an increase over the last enumeration.
Again, in 1764-65, another census of the Negroes was taken; and they
were found to be 5,779.

Here, as in Virginia, an impost tax was imposed upon all Negro slaves
imported into the colony. We will quote section 3 of the Act of
October, 1705, requiring duty upon imported Negroes; because many are
disposed to discredit some historical statements about slavery in
Massachusetts.

"SECT. 3. And be it further enacted by the authority
aforesaid, that from and after the first day of May, in the
year one thousand seven hundred and six, every master of
ship or vessel, merchant or other person, importing or
bringing into this province any negroe or negroes, male or
female, of what age soever, shall enter their number, names
and sex in the impost office; and the master shall insert
the same in the manifest of his lading, and shall pay to the
commissioner and receiver of the impost, four pounds per
head for every such negro, male or female; and as well the
master, as the ship or vessel wherein they are brought,
shall be security for payment of the said duty; and both or
either of them shall stand charged in the law therefor to
the commissioner, who may deny to grant a clearing for such
ship or vessel, until payment be made, or may recover the
same of the master, at the commissioner's election, by
action of debt, bill, plaint or information in any of her
majesty's courts of record within this province."[308]

A fine of eight pounds was imposed upon any person refusing or
neglecting to make a proper entry of each slave imported, in the
"Impost Office." If a Negro died within six weeks after his arrival, a
drawback was allowed. If any slave was sold again into another
Province or plantation within a year after his arrival, a drawback was
allowed to the person who paid the impost duty. A subsequent and more
stringent law shows that there was no desire to abate the traffic. In
August, 1712, a law was passed "prohibiting the importation or
bringing into the province any Indian servants or slaves;"[309] but it
was only intended as a check upon the introduction of the Tuscaroras
and other "revengeful" Indians from South Carolina.[310] Desperate
Indians and insubordinate Negroes were the occasion of grave fears on
the part of the colonists.[311] Many Indians had been cruelly dealt
with in war; in peace, enslaved and wronged beyond their power of
endurance. Their stoical nature led them to the performance of
desperate deeds. There is kinship in suffering. There is an unspoken
language in sorrow that binds hearts in the indissoluble fellowship of
resolve. Whatever natural and national differences existed between the
Indian and the Negro - one from the bleak coasts of New England, the
other from the tropical coast of Guinea - were lost in the commonality
of degradation and interest. The more heroic spirits of both races
began to grow restive under the yoke. The colonists were not slow to
observe this, and hence this law was to act as a restraint upon and
against "their rebellion and hostilities." And the reader should
understand that it was not an anti-slavery measure. It was not
"hostile to slavery" as a system: it was but the precaution of a