Notes on the History of Slavery in Massachusetts/Chapter 10

by George Henry Moore

X.

We have still to notice two acts of legislation in Massachusetts, which were passed in the year 1788—eight years after the alleged termination of slavery in that State by the adoption of the Constitution. These acts were passed just after the adoption of the Federal Constitution by the State Convention.

The first is the only one directly and positively hostile to slavery to be found among all their statutes. It is a very remarkable fact that the reluctance of the Legislature to meet the subject fairly and fully in front should have left their statute-book in so questionable a shape. With Portia, glowing with delight at the unsuccessful choice of her fable suitor, they seem to have wished to say,

 

"A gentle riddance: draw the curtains; go—
Let all of his complexion chuse me so."

Merchant of Venice, Act II., Sc. VIII.

But neither the cupidity of their slave-trading merchants, nor the peculiar improvidence of the negro—the one sharpened by successful gain, the other hardened into hopeless acquiescence with pauperism—would permit this "gentle riddance," and although the "curtains" have been "drawn" over these disagreeable features for nearly a century, the historian of slavery must let in the light upon them.

As early as 1785, the Legislature instituted an inquiry as to the measures proper to be adopted by them to discountenance and prevent any inhabitant of the Commonwealth being concerned in the slave-trade. A joint committee was appointed on the subject, Jan. 25th, 1785—William Heath and John Lowell on the part of the Senate, and Mr. Reed, Mr. Hosmer, and Mr. Sprague, of the House. The inquiry was also extended to the condition of negroes then in the Commonwealth, or who might thereafter come or be brought into it. H. of R. Journals, V., 222. Bills were prepared and referred to the Committee on the Revision of the Laws, with instruction to revise all the laws respecting negroes and mulattoes, and report at the next sitting of the General Court. Ib., 342.

In the following year, March 1, 1786, a joint order was made for a committee to report measures for preventing negroes coming into the Commonwealth from other States. H. of R. Journals, VI., 463. Another similar order was made by the House of Representatives in 1787. Journals, VII., 524.

Earlier in the same year, February 4, 1787, a number of African blacks petitioned the Legislature for aid to enable them to return to their native country. Ib., VII., 381. A Quaker petition against the slave-trade was read in the Senate, June 20, 1787, and not accepted, but referred to the Revising Committee, who were directed to report a bill upon "the subject matter of negroes in this Commonwealth at large." Senate, Vol. VIII., 81. H. of R., Vol. VIII., 88.

The prohibition of the slave-trade by Massachufetts was at last effected in 1788. A most flagrant and outrageous cafe of kidnapping occurred in Boston in the month of February, in that year. M. H. S. Coll., I. iv., 204. Additional particulars may be found by reference to the newspapers of the day. Especially The N. Y. Packet, Feb. 26 and Aug. 29, 1788. This infamous transaction aroused the public indignation, and all classes united in urging upon the Legislature the passage of effectual laws to prevent the further prosecution of the traffic, and protect the inhabitants of the State against the repetition of similar outrages.

Rev. Dr. Jeremy Belknap was one of the foremost in promoting the passage of this act. He consulted some of his friends as to the practicability of improving the occasion to effect the abolition of slavery in the State. His brother-in-law, Mr. Samuel Eliot, agreed with him that the time was most opportune, but said the difficulty in such cafes was, who should step forward,—and recommended him to suggest to the Association of ministers, at their next meeting, a petition to the General Court, whose session was then about to commence; if he failed to gain the co-operation of the ministers, to apply to the Humane Society, and at all events to have a petition drafted.

Mr. Belknap drew up a petition, which his friends pronounced "incapable of amendment," gained the support of the Association, and of a large number of citizens besides. The blacks also presented a petition,^[1] written by Prince Hall, one of their number, and there was salo that of the Quakers in 1787, already noticed, before the Legislature. Life of Belknap, 159, 160.

The movement was successful, and on the 26th of March, 1788, the Legislature of Massachusetts passed "An Act to prevent the Slave-Trade, and for granting Relief to the Families of such unhappy Persons as may be Kidnapped or decoyed away from this Commonwealth." By this law it was enacted "that no citizen of this Commonwealth, or other person residing within the same," shall import, transport, buy, or sell any of the inhabitants of Africa as slaves or servants for term of years, on penalty of fifty pounds for every person so misused, and two hundred pounds for every vessel fitted out and employed in the traffic. All insurance made on such vessels to be void, and of no effect. And to meet the case of kidnapping, when inhabitants were carried off, actions of damage might be brought by their friends—the latter giving bonds to apply the moneys recovered to the use and maintenance of the family of the injured party.

A proviso was added, "That this act do not extend to vessels which have already sailed, their owners, factors, or commanders, for, and during their present voyage, or to any insurance that shall have been made, previous to the passing of the same." How far this proviso may be justly held to be a legislative sanction of the traffic, we leave the reader to decide. It is obvious that the "public sentiment" of Massachusetts in 1788 was not strong enough against the slave-trade, even under the atrocious provocation of kidnapping in the streets of Boston, to treat the pirates, who had already sailed, as they deserved. Rome was not built in a day,—neither could the modern Athens rejoice in an anti-slavery Minerva, fresh in an instant from the brain of the almighty "public sentiment" of Massachusetts.

This act, as we have seen, passed on the 25th of March, 1788. It was accompanied by another act, passed on the following day, hardly less hostile to the negro than this was to slavery—the pioneer of a series of similar acts (though less severe) which have subjected the new States to most unsparing censure.

The Massachusetts Law, entitled "An act for suppressing and punishing of Rogues, Vagabonds, common Beggars, and other idle, disorderly, and lewd Persons," was presented in the Senate on the 6th of March, 1788. It went through the usual stages of legislation, with various amendments, and was finally passed on the 26th of March, 1788. It contains the following very remarkable provision:

"V. Be it further enacted by the authority aforesaid [the Senate and House of Representatives in General Court assembled], that no person being an African or Negro, other than a subject of the Emperor of Morocco, or a citizen of some one of the United States (to be evidenced by a certificate from the Secretary of the State of which he shall be a citizen), shall tarry within this Commonwealth, for a longer time than two months, and upon complaint made to any Justice of the Peace within this Commonwealth, that any such person has been within the same more than two months, the said Justice shall order the said person to depart out of this Commonwealth, and in case that the said African or Negro shall not depart as aforesaid, any Justice of the Peace within this Commonwealth, upon complaint and proof made that such person has continued within this Commonwealth ten days after notice given him or her to depart as aforesaid, shall commit the said person to any house of correction within the county, there to be kept to hard labour, agreeable to the rules and orders of the said house, until the Sessions of the Peace, next to be holden within and for the said county; and the master of the said house of correction is hereby required and directed to transmit an attested copy of the warrant of commitment to the said Court on the first day of their said session, and if upon trial at the said Court, it shall be made to appear that the said person has thus continued within the Commonwealth, contrary to the tenor of this act, he or she shall be whipped not exceeding ten stripes, and ordered to depart out of this Commonwealth within ten days; and if he or she shall not so depart, the same process shall be had and punishment inflicted, and so toties quoties."^[2]

The edition from which we copy is the earliest classified edition of "The Perpetual Laws of the Commonwealth of Massachusetts," and is not to be found in Part I. among those relating to "The Publick and Private Rights of Persons," nor among the "Miscellaneous" Statutes, but in "Part IV.," concerning "Criminal Matters." We doubt if anything in human legislation can be found which comes nearer branding color as a crime!

By this law, it will be observed that all negroes, resident in Massachusetts, not citizens of some one of the States, were required to depart in two months, on penalty of being apprehended, whipped, and ordered to depart. The process and punishment could be renewed every two months. The only contemporary explanation of the design of the law which we have met with is to the effect that it was intended to prevent fugitive slaves from resorting to that State, in hopes to obtain freedom, and then being thrown as a deadweight upon that community. Belknap, 1795. A recent writer states that this "enactment was said to have been the work of her [Massachusetts] leading lawyers, who were sufficiently sagacious to foresee the dangerous consequences of that constitutional provision which, on restoring fugitives from labor, not only threatened to disturb the public peace, but the stability of the system." Amory's Life of Sullivan, I., 226, note. We give this illustration of legal sagacity in Massachusetts for what it is worth, although we are satisfied that the statute itself clearly illustrates the intention of those who framed it. Expositio contemporanea est optima.

Realizing the "deadweight" already resting upon them in the body of their own free negroes (though comparatively small in number), they evidently thought it "sagacious" to prevent any addition to it. Future research must ascertain who were "citizens" of Massachusetts in 1788, before we can safely declare that even Massachusetts Negroes, Indians, and Mulattoes, were exempted from the alternative of exile or the penalties of this statute. The reader will not fail to notice below, the arbitrary and illegal extension of the statute, in its application to "people of color, Page:Notes on the History of Slavery - Moore - 1866.djvu/240 Page:Notes on the History of Slavery - Moore - 1866.djvu/241 Page:Notes on the History of Slavery - Moore - 1866.djvu/242 Page:Notes on the History of Slavery - Moore - 1866.djvu/243 Page:Notes on the History of Slavery - Moore - 1866.djvu/244 Page:Notes on the History of Slavery - Moore - 1866.djvu/245 Page:Notes on the History of Slavery - Moore - 1866.djvu/246 Page:Notes on the History of Slavery - Moore - 1866.djvu/247 Page:Notes on the History of Slavery - Moore - 1866.djvu/248 Page:Notes on the History of Slavery - Moore - 1866.djvu/249 Page:Notes on the History of Slavery - Moore - 1866.djvu/250 England. Of the latter Lord Mansfield said, in 1785, that "villains in gross may in point of law subsist at this day. But the change of manners and customs has effectually abolished them in point of fact." Ante, p. 115, note. If the parallel may be continued, it could be said with equal justice that slavery, having never been formally prohibited by legislation in Massachusetts, continued to "subsist in point of law" until the year 1866, when the grand Constitutional Amendment terminated it forever throughout the limits of the United States. It would be not the least remarkable of the circumstances connected with this strange and eventful hifsory, that, although virtually abolished before, the actual prohibition of slavery in Massachusetts as well as Kentucky, should be accomplished by the votes of South Carolina and Georgia.

1. The petition of the negroes, 27th February, 1788, is in the Massachusetts Spy, 24th April, 1788.
2. The old provincial statute, from which this law was mainly copied, provided for the correction by whipping, etc., of the rogues and vagabonds (without distinction of color) for whose benefit the original law was designed; but in the progress of this law through the Legislature, this feature was stricken out of that portion of the bill, but the "African or Negro" gained what the "rogue and vagabond" lost by the change. Compare Mass. Prov. Laws of 1699, Chap. VI., and Journal of H. of R., VIII., 500.