Notes on the History of Slavery in Massachusetts/Chapter 7
VII.
In the autumn of 1776, sympathy for the slave in Massachusetts received a fresh impulse. Two negro men, captured on the high seas, were advertised for sale at auction, as a part of the cargo and appurtenances of a prize duly condemned in the Maritime Court.[1] This advertisement roused the spirit of hostility to slavery to a remarkable degree, and the Legislature were excited to begin the work of reform apparently with great earnestness and vigor.
On Friday, Sept. 13, 1776, at the afternoon session, the Massachusetts House of Representatives
"Resolved, That Wednesday next, at three o'clock in the afternoon, be assigned for choosing a committee to be joined with a Committee of the Honorable Board, to take under consideration the condition of the African Slaves, now in this State, or that hereafter may be brought into it, and to report." Jour. H. of R., 105.
We find no record of proceedings in accordance with this resolution until a little more than a month later, when, on the 19th of October, 1776, it was "Ordered, that Mr. Sergeant, Mr. Murrey, Mr. Appleton, and Capt. Stone, with such as the honorable House may join be a Committee to take under consideration the condition of the African slaves now in this State [or that may be hereafter brought into this State] or may be hereafter brought into it and report." Journal H. of R., p. 127. This resolution was concurred in by the Council, and William Sever, Benjamin Greenleaf, and Daniel Hopkins, Esqrs., were joined on the part of the Board. Gen. Court Records, Vol. XXXIII., p. 55. We have made diligent search for further action under this resolution and appointment of the Committee, but have failed to discover any trace of it. The matter was probably "allowed to subside" again.
On the same day, however, in which the House first determined to give attention to the condition of the African slaves, on the 13th of September, 1776, their resolution to that effect was immediately followed by another "to prevent the sale of two negro men lately brought into this State, as prisoners taken on the high seas, and advertised to be sold at Salem, the 17th inst., by public auction." Journal, p. 105. The resolve does not appear on the Journal, but from the files preserved among the Archives of the State, we are enabled to present it as thus originally passed, viz.:
"In the House of Representatives, Sept. 13, 1776:
"Whereas this House is credibly informed that two negro men lately brought into this State as prisoners taken on the High Seas are advertised to be sold at Salem, the 17th instant, by public auction,
"Resolved, That the selling and enslaving the human species is a direct violation of the natural rights alike vested in all men by their Creator, and utterly inconsistent with the avowed principles on which this and the other United States have carried their struggle for liberty even to the last appeal, and therefore, that all persons connected with the said negroes be and they hereby are forbidden to fell them or in any manner to treat them otherways than is already ordered for the treatment of prisoners of war taken in the same vessell or others in the like employ and if any sale of the said negroes shall be made, it is hereby declared null and void.
"Sent up for concurrence,
"Saml. Freeman, Speaker, P. T.
"In Council, Sept. 14, 1776. Read and concurred as taken into a new draught. Sent down for concurrence.
John Avery, Dpy. Secy.
"In the House of Representatives, Sept. 14, 1776. Read and non-concurred, and the House adhere to their own vote. Sent up for concurrence.
J. Warren, Speaker.
"In Council, Sept. 16, 1776. Read and concurred as now taken into a new draft. Sent down for concurrence.
John Avery, Dpy. Secy.
"In the House of Representatives, Sept. 16, 1779. Read and concurred.
J. Warren, Speaker.
"Consented to.
Jer. Powell,
W. Sever,
B. Greenleaf,
Caleb Cushing,
B. Chadbourn,
John Whetcomb,
Eldad Taylor,
S. Holten,
Jabez Fisher,
B. White,
Moses Gill,
Dan'l. Hopkins,
Benj. Austin,
Wm. Phillips,
D. Sewall,
Dan'l Hopkins."
We give a more particular account of the legislative history and progress of this resolve, derived from the journals.
The subject reappears on the Journal of the House of the 14th September, as follows:
"David Sewall, Esg., brought down the resolve which passed the House yesterday, forbidding the sale of two negroes, with the following vote of Council thereon, viz.: In Council, Sept. 14, 1776. Read and concurred, as taken into a new draught. Sent down for concurrence. Read and non-concurred, and the House adhere to their own vote. Sent up for concurrence." Ibid., 106.
The members of the Council present on the 14th September, 1776, were
James Bowdoin,
Benjamin Greenleaf,
Richard Derby,
Jer. Powell,
Caleb Cushing,
Benjamin Chadburn,
William Seaver,
John Winthrop,
Thomas Cushing,
Eldad Taylor,
Moses Gill,
Benjamin Austin,
Samuel Holten,
Benjaming White,
Henry Gardner,
Jabez Fisher,
William Phillips,
David Sewall,
Joseph Cushing,
Daniel Hopkins.
General Court Records, etc., p. 581.
The Council Minutes, as contained in the General Court Records, March 13, 1776—Sept. 18, 1776, pp. 581–2, under the date of September 14th, 1776, give the resolve as finally passed, with the addition, "In Council. Read and concurred. Consented to by the major part of the Council." This, however, is an error, as appears not only from the entry on the Journal of the House and the original document from the files as given above, but also from the following minute of the Council in the same volume of Records. Under date of 16th September—the following members of Council being present,
Jer. Powell,
John Winthrop,
Jno. Whetcomb,
William Seaver,
Benjamin Chadburn,
Jabez Fisher,
Benjamin Greenleaf,
Eldad Taylor,
William Phillips,
Caleb Cushing,
Samuel Holten,
David Sewall,—
Rey. Mr. [John] Murray came up with a Message from the House to acquaint the Board that it was their desire to know whether the resolve respecting the sale of Negroes at Salem had passed.
David Sewall, Esq., went down with a message to acquaint the Hon. House that it was under consideration of the Board. Ibid., pp. 585, 589.
On the same day, 16th September, 1776, the final disposition of the matter in the House is thus recorded in their journal.
"John Whitcomb, Esq., brought down the resolve forbidding the sale of two negroes, with the following vote of Council thereon, viz.: In Council, Sept. 16, 1776. Read and concurred, as now taken into a new draught. Sent down for concurrence. Read and concurred." Ibid, 109. The resolve, as finally passed by the General Court, appears in the printed volume of resolves for that period.
"LXXXIII. Resolve forbidding the sale of two Negroes brought in as Prisoners; Passed September 14, [16th,] 1776.
"Whereas this Court is credibly informed that two Negro Men lately taken on the High Seas, on board the sloop Hannibal, and brought into this State as Prisoners, are advertized to be sold at Salem, the 17th instant, by public Auction:
"Resolved, That all Persons concerned with the said Negroes be, and they are hereby forbidden to sell them, or in any manner to treat them otherwise than is already ordered for the Treatment of Prisoners taken in like manner; and if any Sale of the said Negroes shall be made it is hereby declared null and void; and that whenever it shall appear that any Negroes are taken on the High Seas and brought as Prisoners into this State, they shall not be allowed to be Sold, nor treated any otherwise than as Prisoners are ordered to be treated who are taken in like Manner." Resolves, p. 14.
The high-toned, bold, and unequivocal declaration of anti-slavery principles, with which it originally set out, is gone; but it is still the most honorable document of Massachusetts legislation concerning the negro. To appreciate its importance and properly to understand this subject of negro captures and recaptures, it is necessary to extend our inquiry beyond the limits of the legislation of a fingle Colony; and we shall therefore make no apology for presenting to the reader in this place the results of our examination of the national legislation and action with reference thereto.
Its practical importance was obvious, and the necessity of an uniform rule was too apparent to admit of a doubt. Accordingly the Continental Congress, on the 14th of October, 1776—just one month after the proceedings in the Legislature of Massachusetts concerning the two negroes captured in the Hannibal—appointed a special Committee of three members (Mr. Rich. Henry Lee, Mr. Wilson, and Mr. Hall) "to consider what is to be done with Negroes taken by vessels of war, in the service of the United States." We have found no report of this Committee, nor are we able to say what action, if any, was taken until a later period of the war.
The Continental Congress, by resolutions of 25th November, 1775, had recommended it to the several Legislatures to erect Courts, or give jurisdiction to the Courts in being, for the purpose of determining concerning captures. Still, from the beginning, Congress exercised the power of controlling, by appeal, the several admiralty jurisdictions of the States. Journal, 6th March, 22d May, 1779, 21st March, 24th May, 1780. Journal H. of R. Pa., Jan. 31, 1780.
Congress had prescribed a rule of the distribution of prizes, and an early act of Massachusetts is curiously illustrative of the doctrine of a divided sovereignty. By Chapter XVI. of the laws of 1776, it was provided that distribution should take place according to the Laws of this Colony, when prizes were taken by the Forces or the Inhabitants thereof; and when they shall be taken by the fleet and army of the United Colonies, then to distribute and dispose of them according to the Resolves and Orders of the Congress. Compare Chapter X., 1776, and Chapter I., 1775, p. 9.
Massachusetts ratified the Articles of Confederation in 1778, and the confederation was completed March 1st, 1781. The ninth article gave to the United States in Congress assembled the sole and exclusive right of establishing rules for deciding, in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated, as well as establishing courts for receiving and determining finally appeals in all cases of captures.
Accordingly, Congress proceeded to legislate on the subject, and, during the year 1781, completed an ordinance, ascertaining what captures on water shall be lawful, in pursuance of the powers delegated by the confederation in such cafes. On the 4th of June, 1781, an ordinance was reported for establishing a court of appeals, etc. On the 25th of the same month the subject was discussed, and, on the 17th of July, 1781, the ordinance having been further debated, was recommitted, and the committee were instructed to prepare and bring an ordinance for regulating the proceedings of the admiralty courts of the several States in cases of capture, to revise and collect into one body the resolutions of Congress and other convenient rules of decision, and to call upon the several Legislatures to aid by necessary provisions the powers reserved to Congress by the Articles of Confederation on the subject of captures from the enemy. On the 21st of September, 1781, Congress resumed the second reading of the ordinance respecting captures, and on the question to agree to the following paragraph, the yeas and nays were required by Mr. Matthews, of South Carolina: "On the recapture by a citizen of any negro, mulatto, Indian, or other person from whom labor or service is lawfully claimed by another citizen, specific restitution shall be adjudged to the claimant, whether the original capture shall have been made on land or water, a reasonable salvage being paid by the claimant to the recaptor, not exceeding one-fourth part of the value of such labor or service, to be estimated according to the laws of the State of which the claimant shall be a citizen: but if the service of such negro, mulatto, Indian or other person, captured below high water mark, shall not be legally claimed by a citizen of these United States, he shall be set at liberty."
It was adopted by a vote of twenty ayes to two noes. Both noes were from the South Carolina delegates. By the method of voting in that Congress, the vote was seven States in the affirmative, and one in the negative—four States not voting. The affirmative States were Georgia, Virginia, Maryland, Pennsylvania, New York, Rhode Island, and Massachusetts. States not voting, North Carolina, Delaware, New Jersey, and Connecticut, although all their delegates present voted in the affirmative. On the 27th September, when the ordinance came up for a third reading, an attempt was made to obtain a second vote on this paragraph, but it was ruled to be out of order. The ordinance was farther debated November 8, 13, 30, and some important changes were made, which will appear on comparison of the passages in italics. It was finally passed, apparently without opposition, on the 4th of December, 1781, as follows:
"On the recapture by a citizen of any negro, mulatto, Indian, or other person, from whom labor or service is lawfully claimed by a State or a citizen of a State, specific restitution shall be adjudged to the claimant, whether the original capture shall have been made on land or water, and without regard to the time of possession by the enemy, a reasonable salvage being paid by the claimant to the recaptor, not exceeding 1-4th of the value of such labor or service, to be estimated according to the laws of the State under which the claim shall be made.
"But if the service of such negro, mulatto, Indian, or other person, captured below high water mark, shall not be legally claimed within a year and a day from the sentence of the Court, he shall be set at liberty." Thus the action of the legislative authorities—colonial or state and continental or national—was virtually an affirmation of the received law on the subject, which was founded on the doctrine of post liminium derived from the civil law.
This, however, applied only to recaptures. There is no special provision for cases of capture of slaves belonging to the enemy—to whom probably the old doctrine was held to apply, that they were lawful prize, and as such liable to sale for the benefit of the captors. This had been the general, if not universal, rule.
Sir Leoline Jenkins, in a letter written in 1674, respecting negroes in a Dutch prize-vessel, says that it will not be controverted that on the statute of Prize "negroes are to be reputed Goods and merchandizes in this ship, as they are, generally speaking, a part of the commerce of those parts." Wynne's Life of Sir L. Jenkins, p. 707, quoted by John C. Hurd.
Negroes, captured in Canada, during the wars between the English and French, were sent to the West India Islands for sale. Col. Doc., X., 131.; bis, 138, 140. In 1747, the English having captured a negro servant, the French took pains to reclaim him, but the English refused to surrender him on the ground that every negro is a slave, wherever he happens to be, and in whatever Country he may reside. N. Y. Col. Doc., X., 210. This precedent was referred to in a similar case in 1750, with a similar decision, which was acquiesced in by both English and French. Ib., 213. See also the 47th article of Capitulation for the Surrender of Canada in 1760. N. Y. Col. Doc., X., 1118.
In 1761, upon the reduction of Martinico, Maj.-Gen. Monckton ordered the negroes which were taken to be sold, and the money to be divided amongst the subalterns attached to his army. Ibid., XIII., 250.
During the American War, the slaves of the rebel colonists were regarded by the English as proper subjects of prize and booty. The N. E. Chronicle, July 4, 1776, states that the "negroes carried off when the [British] Army and Fleet were obliged to evacuate the Town and Harbor [of Boston] were sent to Louisburgh, to dig Coal for their Tyrannical Masters. These Blacks, were commanded by a certain Captain Lindsey." It was estimated that not less than 30,000 were carried off from Virginia. Hildreth, III., 355. And thousands were carried off from South Carolina, Georgia, and other States. Mr. Jefferson, in his letter to Gordon, refers to those who were sent to the West Indies, and exchanged for rum, sugar, coffee, and fruit. Works, II., 427.
In 1779, Sir Henry Clinton issued the following proclamation :
"By his Excellency, Sir Henry Clinton, K. B., General, and Commander-in-Chief of all His Majesty's Forces within the Colonies lying on the Atlantic Ocean, from Nova Scotia to West Florida, inclusive, &c., &c. &c.:
"PROCLAMATION.
"Whereas, The Enemy have adopted a practice of enrolling NEGROES among their troops: I do hereby give Notice, that all Negroes taken in Arms, or upon any military Duty, shall be purchased for [the public service at] a stated price; the Money to be paid to the Captors.
"But I do most strictly forbid any Person to sell or claim Right over any Negroe, the Property of a Rebel, who may take refuge with any part of this Army: And I do promise to every Negroe who shall desert the Rebel Standard full Security to follow within these Lines any occupation which he shall think proper.
"Given under my Hand, at Head-Quarters, Philipsburgh, the 30th day of June 1779:
"H. Clinton.
"By his Excellency's Command,
"John Smith, Secretary."
When this proclamation was first issued, the words enclosed within brackets were not in it. They were added in the publication two months later—with a statement that the omission was a mistake of the printers.
This method of dealing with captive negroes was not confined to the British Army at that time.
At the capture of Stony Point by General Wayne, three negroes were taken among the spoils, and although we have not been able to determine what disposition was finally made of them, the following letter of General Wayne on the subject is not without interst here. Writing from New Windsor on the 25th July, 1779, to Lieut.-Col. Meigs, he says:
"The wish of the officers to free the three Negroes after a few Years Service meets my most hearty approbation, but as the Chance of War or other Incidents may prevent the officer [owner] from Complying with the Intention of the Officers, it will be proper for the purchaser or purchasers to sign a Condition in the Orderly Book.
"… I would chearfully join them in their Immediate Manumission—if a few days makes no material difference, I could wish the sale put off until a Consultation may be had, and the opinion of the Officers taken on this Bufiness." Dawson's Stony Point, pp. 111, 118.
The discuffions which arose out of the breaches of the Treaty of Peace in 1783, which put negroes on the same footing with any other article of property, and the settlement made by Mr. Jay's Treaty in 1794, furnish an authoritative statement of the prevailing views of public law concerning the status of negroes. Hamilton, in his Camillus, No. III., says:
"Negroes, by the law of the States, in which slavery is allowed, are personal property. They, therefore, on the principle of those laws, like horses, cattle, and other moveables, were liable to become booty—and belonged to the enemy [captor] as soon as they came into his hands." American Remembrancer, I., 57.
Gen. Washington, the Continental Congress, and the Commissioners appointed by Congress in 1783 to superintend the embarkation of the British from New York, all concurred in this view. Indeed the Commissioners, Egbert Benson, William S. Smith, and Daniel Parker, showed conclusively that they had no hesitation in considering negroes, horses, and other property, as being precisely on the same footing; and selected a claim for a negro as one of the strongeft that could be found to enforce a compliance with the stipulation in the Seventh Article of the Treaty. Nor did the British Ministry at any period of the negotiations raise any question as to this doctrine.
The differences of opinion, and the arguments of both parties in the National Congress, only confirm the fact, which indeed is obvious enough from the language of the Article. This was in 1795, during the first session of the fourth Congrefs, when the House of Representatives embraced many of the ablest men in the country. Debates on the British Treaty, Part II., pp. 129, 147, 253, 291–2, 301. Papers relative to Great Britain, pp. 5–9.
After the last war with England similar difficulties and discussions arose with reference to the first article of the Treaty of Ghent, which protected the rights of our citizens in their "slaves or other private property." After a long struggle of the characteristic diplomacy of Great Britain to evade it, a large sum was paid as indemnity for the slaves carried off in violation of the treaty stipulation.
The doctrine of prize in negroes fell only with the Slave-Trade, and the Courts of England were very slow to recognise its fall. As late as 1813, Sir William Scott condemned one hundred and ninety-nine slaves, as "good and lawful prize to the captors," declaring at the same time that "slaves are deemed personal property, and pass to the captors under the words of the Prize Act, 'Goods or Merchandizes.'" 1 Dodson's Reports, 263.
The earliest judicial recognition, within our knowledge, of the fact that negroes were no longer to be held and taken as "good and lawful prize to the captors," was in the United States District Court, in South Carolina, in July, 1814. It appears that the question was regarded as new. The Court previously had not proceeded to condemnation of slaves brought in as prize of war; but ordered their confinement as prisoners.[2] And in some cases, they had been received as such by the British authority resident at Charleston. The interest of parties requiring a formal decision on the point of prize, the libel was filed, in this case, Joseph Almeida, Captain of the American Privateer Caroline, v. Certain Slaves. Mr. Justice Drayton said he had never had any doubt on the subject, and declared that "Slaves captured in time of war cannot be libelled as prize: nor will the District Court of the United States consider them as prisoners of war. The Court confiders the disposition of them as a matter of State, in which the judiciary should not interfere." Hall's Law Journal, V., 459.
In view of all these facts, the Massachusetts Resolve of September 16th, 1776, justly challenges our admiration. It lights up the dreary record with a sudden and brilliant glare, as of a light shining in great darkness. Although vhorn of its magnanimous declaration of principles, in its progress through the legislature, its terms would still introduce a new theory and practice into the law of nations, annihilating the doctrine of prize in negroes, which had been everywhere maintained before, and which continued without question elsewhere. If it was really adhered to, it deserves all the honor that has been claimed for it as a long stride in advance of all the world in civilization and humanity. But the Legislature of Massachusetts could only regulate the action of their own prize Courts and their own citizens, and did not at that time attempt to give law to the whole continent. They then recognized the fact that they could not divest the title of slave-owners in the other Colonies in captured slaves, and their obligation to restore them in cases of recapture. Called upon to deal with a larger number of negroes, under circumstances more embarrassing than in the case already detailed, they appear to have been satisfied with their own declared position, and did not attempt to extend the principle of their new rule to all negro slaves who came or were brought within their jurisdiction.
In the month of June, 1779, the prize-ship, Victoria, was brought into the port of Boston. The Victoria was a Spanish ship which had cleared from South Carolina for Cadiz. On her passage she was attacked by an English privateer, made a successful resistance, and captured her assailant, who had on board thirty-four negroes which had been taken from the plantations of several gentlemen in South Carolina. The Spaniard, after taking the negroes on board and injuring the vessel, dismissed her. A few days afterward the ship fell in with and was taken by two British letters of marque and ordered into New York. On her passage there she was recaptured by the Hazard and Tyrannicide, two vessels in the service of Massachusetts, and brought safely into port. On the 21st of June, by order of the Board of War, she was placed in charge of Capt. Johnson, to direct the unloading, etc., in behalf of the State. The Board of War immediately represented to the Legislature the facts relating to the negroes thus "taken on the high seas and brought into the State;" being evidently unable to apply the resolution of 1776 to this case.
On the 23d of June, 1779, it was ordered in the House of Representatives, "that Gen. Lovell, Capt. Adams, and Mr. Cranch be a committee to consider what is proper to be done with a number of negroes brought into port in the prize ship called the Lady Gage."[3] Journal, p. 60. The next day, "the committee appointed to take into consideration the state and circumstances of a number of negroes lately brought into the port of Boston, reported a resolve directing the Board of War to inform our delegates in Congress of the state of facts relative to them, to put them into the barracks on Castle Island, and cause them to be supplied and employed." Ibid, pp. 63, 64. The resolution was immediately passed and concurred in by the Council. It appears in the printed volume, among the Resolves of June, 1779.
"CLXXX. Resolve on the Representation of the Board of War respecting a number of negroes captured and brought into this State. Passed June 24, 1779.
"On the representation made to this Court by the Board of War, respecting a number of negroes brought into the Port of Boston, on board the Prize Ship Victoria:
"Resolved, that the Board of War be and they are hereby directed forthwith to write to our Delegates in Congress, informing them of the State of Facts relating to said Negroes, requesting them to give information thereof to the Delegates from the State of South Carolina, that so proper measures may be taken for the return of said Negroes, agreeable to their desire.
"And it is further Resolved, that the Board of War be and they hereby are directed to put the said Negroes, in the mean time, into the barracks on Castle Ifland in the Harbor of Boston, and cause them to be supplied with such Provision and Clothing as shall be necessary for their comfortable support, putting them under the care and direction of some Prudent person or Persons, whose business it shall be to see that the able-bodied men may be usefully employed during their stay in carrying on the Fortifications on said Island, or elsewhere within the said Harbor; and that the Women be employed according to their ability in Cooking, Washing, etc. And that the said Board of War keep an exact Account of their Expenditures in supporting said Negroes." Resolves, p. 51.
This resolve was immediately carried into execution. On the 28th of June, Edward Revely, the prize-master, was ordered to "deliver Thos. Knox from ship Victoria the Negroes that are on board for the purpose of their being sent to Castle Island pr. Order of Court," and accordingly there were "34 Negroes delivered." At the fame time, the Board of War ordered the "issue to the Negroes at Castle Island—1 lb. of Beef, 1 lb. of Rice pr. day," upon the orders of Lt.-Col. Revere, the commandant of Castle Island. Minutes Board of War. His letter of instructions from the Board is as follows:
"War Office, 28 June, 1779.
"Lt.-Col. Revere,
"Agreeable to a Resolve of Court we send to Castle Island and place under your care the following Negroes, viz.:
[19] Men,
[10] Women,
[ 5] Children,
lately brought into this Port in the Spanish retaken Ship Victoria. The Men are to be employed on the Fortifications there or elsewhere in the Harbor, in the most useful manner, and the Women and Children, according to their ability, in Cooking, Washing, etc. They are to be allowed for their subsistence One lb. of Beef, and one lb. of Rice per day each, which Commissary Salifsbury will furnish upon your order, and this to continue until our further orders.
"By Order of the Board."2em
In accordance with the resolve of Court, the Board of War, by their President, Samuel P. Savage, addressed a letter to Messrs. Gerry, Lovell, Holten, etc., etc., delegates from Massachusetts in the Continental Congress, dated War Office, 29th June, 1779, in which are set forth the principal facts in the case, and the instructions of the Legislature. In conclusion, the President says, "Every necessary for the speedy discharge of these people, we have no doubt you will take, that as much expense as possible may be saved to those who call themselves their owners." This letter also gives the number of the negroes, and the names of the several gentlemen from whose plantations they were taken, viz.:
"5 Men 4 Women 4 Boys 1 Girl belonging to Mr. Wm. Vryne.
"9 Men 1 Woman belonging to Mr. Anthony Pawley.
"1 Man belonging to Mr. Thomas Todd.
"2 Men 3 Women belonging to Mr. Henry Lewis.
"2 Men 2 Women belonging to Mr. William Pawley.
"One of the negroes is an elderly sensible man, calls himfelf James, and says he is free, which we have no reason to doubt the truth of. He also fays that he with the rest of the Negroes were taken from a place called Georgetown." Mass. Archives, Vol. 151, 292–94.
These negroes were not all detained at Castle Island, until their owners were heard from. One method of providing for them is noticed in the following extract:
"In 1779, Col. Paul Revere, who commanded there [Castle Island] had several orders from the Council to let part of them [negroes quartered on the Island] live as servants, with persons in different towns. An express condition of such license was, they should be returned whenever the public authorities required." Felt: Coll. Am. Stat. Assoc., I., 206–7.
These orders of the Council began as soon as the negroes were sent to the Island, the first one we have found bearing date June 30th, 1779, by which Mr. Joshua Brackett was to have a Negro Boy "such as he may choose," etc. Mass. Archives, Vol. 175, 374. See also similar order for three Negro Boys to be delivered to Hon. Henry Gardner, July 5, 1779. Ibid., 385.
Most of them, however, must have remained at Castle Island, as appears from a return of the negroes there, October 12th, 1779. It is a singular circumstance that fuch a return should be made, apparently to the Legislature, with a brief and touching report, from John Hancock—one of the most interesting documents connected with this subject. The original, from which we copy, is in the Mass. Archives, Vol. 142, 170. The portions which are in italics are in the autograph of Hancock.
Boston, Octr. 12, 1779. A Return of ye Negroes at Castle Island,
Viz:
Negro Men.
| 1. | Anthony. | 9. | Jack. |
| 2. | Partrick. | 10. | Gye. |
| 3. | Padde. | 11. | June. |
| 4. | Isaac. | 12. | Rhodick. |
| 5. | Quash. | 13. | Jack. |
| 6. | Bobb. | 14. | Fuller. |
| 7. | Anthoney. | 15. | Lewis. |
| 8. | Adam. |
The above men are stout fellows.
Negro Boys.
| No. | 1. | Smart. |
| 2. | Richard. |
Boys very small.
| Negro Woomen. | Negro Girls, | ||
| No. | 1. Kittey. | No. | 1. Lysett. |
| 2. Lucy. | 2. Sally. | ||
| 3. Milley. | 3. Mercy. | ||
| 4. Lander. | |||
| Pretty large. | Rather stout. | ||
Gentlemen,
The Scituation of these Negroes is pitiable with respect to Cloathing.
I am, Gent.
John Hancock.[4]
Oct. 12, 1779.
On the 15th of November, 1779, a petition was read in the Council, from Isaac Smith, John Codman, and William Smith, in behalf of William Vereen and others, of the State of South Carolina, then in Boston, praying that a number of Negroes which were taken from them by a British privateer, and retaken by two armed vessels belonging to Massachusetts, might be delivered to them. The Council, upon hearing the petition, ordered "that Moses Gill, Esq., with such as the Honorable House shall join, be a Committee to take into consideration this petition, and report what may be proper to be done thereon." The resolution was immediately sent to the House, who concurred, and joined Capt. Williams of Salem, and Mr. Davis of Boston, for the Committee.
On the 17th of November, another petition was presented in Council, from John Winthrop, "praying that certain negroes, who were brought into this State by the Hazard and Tyrannicide, may be delivered to him." This petition was also committed to the "committee appointed on the petition of Isaac Smith and others," by a concurrent vote of both Houses.
On the 18th of November, "Jabez Fisher, Esq., brought down a report of the Committee of both Houses on the petition of Isaac Smith, being by way of resolve, directing the Board of War to deliver so many of the negroes therein mentioned, as are now alive. Passed in Council, and sent down for concurrence." The order of the House is, "Read and concurred, as taken into a new draught." Sent up for concurrence."
It is printed among the resolves of November, 1779:
"XXXI. Resolve relinquishing this State's claim to a number of Negroes, passed November 18, 1779.
"Whereas a number of negroes were re-captured and brought into this State by the armed vessels Hazard and Tyrannicide, and have since been supported at the expense of this State, and as the original owners of said Negroes now apply for them:
"Therefore Resolved, That this Court hereby relinquish and give up any claim they may have upon the said owners for re-capturing said negroes: Provided they pay to the Board of War of this State the expence that has arisen for the support and cloathing of the Negroes aforesaid." Resolves, p. 131.[5]
The Massachusetts act of April 12, 1780, more effectually providing for the security, support, and exchange of prisoners of war brought into the State, was passed in accordance with the Resolutions of Congress, adopted January 13th, 1780. Laws, 1780, Chap. v., pp. 283, 4. It declares with reference to "all Prisoners of War, whether captured by the Army or Navy of the United States, or armed Ships or Vessels of any of the United States, or by the Subjects, Troops, Ships, or Vessels of War of this State, and brought into the same, or cast on shore by shipwreck on the coast thereof . . . . . , all such prisoners, so brought in or cast on shore (including Indians, Negroes, and Molatoes) be treated in all respects as prisoners of war to the United States, any law or resolve of this Court to the contrary notwithstanding." A previous law of 1777, repealed by this act, contained no special provision concerning this class of captures. Laws, 1777, Chap. xxxv., p. 114.
On Friday, the 23d of January, 1784, Governor Hancock sent a message to the Legislature, transmitting papers received during the recess from October 28th, 1783, to January 21st, 1784, "among which (he says) is one from his Excellency the Governor of South Carolina, respecting the detention of some Negroes here, belonging to the subjects of that State. I have communicated it to the Judges of the Supreme Judicial Court—their observations upon it are with the Papers. I have made no reply to the letter, judging it best to have your decision upon it." Journal H. of R., Vol. IV., pp. 308, 9. The Secretary, in communicating the message to the House, said he had laid the papers before the Senate, with his Excellency's request to send them to the House. Ibid., p. 310.
On the same day, in the Senate, the message was read with accompanying papers, and referred to a joint committee of both Houses. Senate Journal, IV., 277. House Journal, IV., 311.
On the 23d of March following, a report of the committee, "by way of order," was read and accepted in the Senate, and concurred in by the House. Senate Journal, IV., 441. In the House, "The Hon. Mr. Warner brought down the report of the Committee on Governor Gerrard's[6] letter, being an Order requesting his Excellency the Governor to transmit a copy of the opinions of the Judges of the Supreme Judicial Court on the case complained of, for the information of the said Governor Gerrard." House Journal, IV., 496. The order is printed among the Resolves, March, 1784.
"CLXXI. Order requesting the Governor to write to Governor Guerard of South Carolina, inclosing the letter of the Judges of the Supreme Judicial Court, March 23d, 1784.
"Ordered, that his Excellency the Governor be requested to write to Excellency Benjamin Guerard, Governor of South Carolina, inclosing for the information of Governor Guerard, the letter of the Judges of the Supreme Judicial Court of this Commonwealth, with the copy in the said letter referred to, upon the subject of Governor Guerard's letter, dated the sixth October, 1783." p. 141.
We have made diligent efforts to find the papers referred to among the files preserved in the State-House at Boston, but without success. We have also endeavored to procure them from the Archives of the State of South Carolina, with no more satisfactory result. Fortunately, however, we have been favored with the following extracts and memorandum, which were made by Mr. Bancroft at Columbia, S. C., several years ago.
From Mr. Bancroft's MSS., America, 1783, Vol. II.
Governor Guerard to Governor Hancock,
6th October, 1783.
Extract. "That such adoption is favoring rather of the Tyranny of Great Britain which occasioned her the loss of these States—that no act of British Tyranny could exceed the encouraging the negroes from the State owning them to desert their owners to be emancipated—that it seems arbitrary and domination—assuming for the Judicial Department of any one State, to prevent a restoration voted by the Legislature and ordained by Congress. That the liberation of our negroes disclosed a specimen of Puritanism I should not have expected from gentlemen of my Prosession."
Memorandum. "He had demanded fugitives, carried off by the British, captured by the North, and not given up by the interference of the Judiciary." "Governor Hancock referred the subject to the Judges."
Judges Cushing and Sargent to Governor
Hancock, Boston, Dec. 20, 1783.
Extract. "How this determination is an attack upon the spirit, freedom, dignity, independence, and sovereignty of South Carolina, we are unable to conceive. That this has any connection with, or relation to Puritanism, we believe is above yr Excellency's comprehension as it is above ours. We should be sincerely sorry to do anything inconsistent with the Union of the States, which is and must continue to be the basis of our Liberties and Independence; on the contrary we wish it may be strengthened, confirmed, and endure for ever."
Whether Governor Hancock recognized in the subjects of this correspondence any of his old Castle Island acquaintances, does not appear; but we entertain no doubt that they were the same, or a part of the same negroes whose "pitiable" condition "with respect to cloathing," he had reported to the authorities in October, 1779. Why or how it happened that any of them were still within the jurisdiction of Massachusetts, we cannot explain. The exigencies of the war in South Carolina, which was threatened or invaded and overrun during the greater part of the intervening period (1779–83), may have prevented some of the owners from prosecuting promptly their intention to reclaim their slaves or returning with them to that State. The slaves themselves may have become familiar with their new homes, and willing or desirous to remain with their new masters in the various towns to which they had been scattered, and where they had been permitted to live under the orders of Council, and their new masters may have become warmly interested in the desire to keep them. Under such circumstances the authorities may have found it difficult to obtain a compliance with the agreement to return them when called for, without enforcing the reclamation in the courts of law. Add to all this, the disposition of some of the Supreme Court judges "to substitute an unwritten higher law, interpreted by individual conscience, for the law of the land and the decrees of human tribunals"—and we shall not be surprised at the result indicated in these imperfect memorials of the proceedings in 1783, '84.
We may expect from future researches in Massachusetts more light on this as well as other points indicated in these Notes; and we trust especially that these deficiencies may "compel a discovery" of the opinions of the Judges. They would furnish an extremely important illustration of the state and progress of anti-slavery ideas in 1783, bearing directly on the construction of the Constitution of 1780, which we have still to discuss. The only additional item we have found which may bear on this cafe is the following:
In the Supreme Judicial Court of the Commonwealth of Massachusetts, Suffolk, 26th August, 1783, the following named negroes were brought up on habeas corpus and discharged, the Court declaring the mittimus insufficient to hold them.
| Affa Hall, wife of Prince | Hall, |
| Quash, | Robert, |
| John Polly, | Anthony, |
| Jack Phillips, | Peggy, wife of said Anthony. |
| George Polly, |
Records, 1783, fol. 177, 178.
- ↑ This was the Hannibal, a sloop of sixty tons, commanded by William Fitzpatrick, and taken while on a voyage from Jamaica to Turk's Island. Am. Archives, V., iii., 258. An advertisement in the New England Chronicle, August 15, 1776, announces the Maritime Court for ye Middle District to be held at Boston, 5th September, 1776, to try the Justice of the Capture of the Sloop called the Hannibal, etc., and her Cargo and Appurtenances.
- ↑ They were informally considered as prisoners, not so decreed by Court.
- ↑ This name of "Lady Gage" is probably a mistake, for this proceeding evidently led to the resolution of the following day.
- ↑ John Hancock had been appointed "Captain of the Castle and Fort on Governor's Island," on the 6th of October, 1779. Resolves, CLXXVIII, p. 111. Compare Journal, pp. 54, 60.
- ↑ The original resolve is in Mass. Archives, Vol. 142, 29, and is endorsed "Negroes captured in the ship Victoria," and "Entered page 454."
- ↑ Benjamin Guerard was Governor of the State of South Carolina from 1783 to 1785.