Notes on the History of Slavery in Massachusetts/Chapter 9

by George Henry Moore

IX.

We come now to the Constitution of 1780, the instrument by which it is alleged that slavery was abolished in Massachusetts. In the illustration of our subject, its history is very important, and demands careful and accurate criticism.

After the failure of the attempt in 1778, a convention of delegates chosen for the purpose was decided upon to form a constitution of government. They were elected in the summer of 1779, and met at Cambridge on the 1st of September of that year. On the 3d they resolved to prepare a Declaration of Rights of the people of the Massachusetts Bay, and also to proceed to the framing a new Constitution of Government. On the next day, Sept. 4th, a Committee of thirty persons was chosen to prepare a Declaration of Rights and the form of a Constitution. On the 6th September, the Convention adjourned until the 28th October, for the purpose of giving the Committee time to prepare a report. Immediately upon the adjournment, the General Committee met in Boston, and delegated the duty of preparing a draught of a Constitution to a sub-committee of three members—James Bowdoin, Samuel Adams, and John Adams. By this sub-committee the task was committed to John Adams, who performed it. The preparation of a Declaration of Rights was intrusted by the General Committee to Mr. Adams alone. His own statement with regard to it is, "The Declaration of Rights was drawn by John Adams; but the article respecting religion, was referred to some of the clergy or older and graver persons than myself, who would be more likely to hit the taste of the public." MS. Letter of John Adams to William D. Williamson, 25 February, 1812, quoted in Williamson's Maine, II, 483, note. Adams's Works: IV., 215–16.

The first Article of the Declaration of Rights, as reported to the Convention, was as follows:

"Art. I. All men are born equally free and independent, and have certain natural, essential and unalienable rights: among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting their property; in fine; that of seeking and obtaining their safety and happiness." Report, p. 7.

This article, as reported, met with no opposition, elicited little or no discussion, and was accepted with but flight and unimportant verbal amendments. Journal, p. 37. It stands thus in the Constitution of Massachusetts:

"Art. I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying, and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness." Constitution, p. 7.

Its language is nearly the same with that of the first article of the Bill of Rights of Virginia, written by George Mason, and adopted by her Convention on the 12th of June, 1776, when "Virginia proclaimed the Rights of Man." Bancroft, VIII., 381. The same language, common in those days, became more familiar in the Declaration of Independence, on the 4th of July, 1776, and in the Pennsylvania Declaration of Rights, July 15th–September 28th, 1776; and this affirmation of natural and even unalienable rights had long ceased to be a novelty before Massachusetts repeated it in her Convention of 1779–80. The Constitution was submitted to the people in March, adopted by a popular vote in June, and the new government went into operation on the 25th of October, 1780.

It is a remarkable statement for a Massachusetts writer to make, but it is undoubtedly true, that "much interest has been felt of late years to know when, and under what circumstances, slavery ceased to exist in Massachusetts." M. H. S. Coll., IV., iv., 333. The fact that Daniel Webster had not been able a few years before his death to determine this question satisfactorily, is pretty good evidence that it was doubtful; and will go far to justify a good degree of caution in its decision. In 1836, Chief-Justice Shaw made an interesting statement on this point:

"How or by what act particularly, slavery was abolished in Massachusetts, whether by the adoption of the opinion in Somerset's case, as a declaration and modification of the common law, or by the Declaration of Independence, or by the Constitution of 1780, it is not now very easy to determine, and it is rather a matter of curiosity than utility; it being agreed on all hands, that if not abolished before, it was so by the Declaration of Rights." Commonwealth v. Aves, 18 Pickering, 209.

Few persons can now be found hardy enough to date the abolition of slavery in Massachusetts from Lord Mansfield's decision in the Somerset case, or the Declaration of Independence. But the received opinion in Massachusetts is, that the first article of the Declaration of Rights was not simply the declaration of an abstract principle or dogma, which might be wrought out into a practical system by subsequent legislation, but was intended to have the active force and conclusive authority of law; to divest the title of the master, to break the bonds of the slave, to annul the condition of servitude, and to emancipate and set free by its own force and efficacy, without awaiting the enforcement of its principles by judicial decision. Compare 7 Gray, 478. 5 Leigh, 623.

We have made diligent inquiry, search, and examination, without discovering the slightest trace of positive contemporary evidence to show that this opinion is well founded. The family traditions which have designated the elder John Lowell as the author of the Declaration, and assigned the intention to abolish slavery as the express motive for its origin, will not stand the test of historical criticism. The truth is, that the bold judicial construction by which it was afterwards made the instrument of virtual abolition, was only gradually reached and sustained by public opinion—the Court having advanced many steps further than was intended by the Convention or understood by the people, in their decision on this subject. If it were possible that such a purpose could have been avowed in the Convention and wrought into their work, without opposition, it certainly could not have passed absolutely without notice. Such a conversion would be too sudden to be genuine; and if we follow the facts in their natural chronological order, the actual result will fall into its due place and position without force or violation of the truth of history.

Now there is no evidence of opposition, either in the Convention or out of it. Not even a notice of this important revolution, in the newspapers of the day or elsewhere, has rewarded our earnest and careful search. John Adams, the author of the Bill of Rights, was not in favor of immediate emancipation (see ante, p. 110). The most strenuous anti-slavery men were unconscious of any such intention or result for a long time afterward; and the newspapers continued to advertise the sales of negroes as before. There is nothing to show that so great a change was contemplated or realized, and those who maintain it would have us believe that the people of Massachusetts, like the Romans on another memorable occasion, suddenly became quite another people.^[1]

The address of the Convention, on submitting the result of their labors to their constituents, makes no allusion whatever to this subject. No one can read it—setting forth as it does the principal features of the new plan of government, the grounds and reasons upon which they had formed it, with their explanations of the principal parts of the system—and retain the belief that they had consciously, deliberately, and intentionally adopted the first clause in the Declaration of Rights for the express purpose of abolishing slavery in Massachusetts. The same Bill of Rights provided that "no part of the property of any individual, can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people," and, in another clause, that "no subject shall be . . . deprived of his property but by the judgment of his peers, or the law of the land." Constitution, p. 10, 11. Did the members of that Convention intend deliberately to divest the recognized title to property of their fellow-citizens, amounting to not less than half a million of dollars, without a word of explanation of the high grounds of justice or public policy on which they based their action? If any further evidence is needed in this connection, it may be found in the subsequent suits, with the entire proceedings and arguments of counsel, by which the result of virtual abolition was finally secured; as well as in the legislative proceedings which followed—all utterly inconsistent with the theory of a direct and intentional abolition by the Convention and People. Compare Washburn, in M. H. S. Coll., IV., iv., 333–346.

We have said that earnest anti-slavery men at that time were not aware of the alleged intention of the Convention to abolish slavery by the declaration in the Bill of Rights. We have previously referred to the earnest efforts of Deacon Colman, of Newbury, against slavery as early as 1774–75. A controversy between him and his conservative minister, as shown in the Church Records from 1780 to 1785, demonstrates this fact. The minister was the father of Theophilus Parsons, afterwards so well known in the State of Massachusetts as Chief Justice—the "Giant of the Law." In the Deacon's Testimony and Declaration, he says:

"The slaves in this State have petitioned for Liberty and Freedom from Bondage, since our Troubles began, in the most importunate and humble manner; yet they are not set free in a general way. . . . Magistrates, Ministers and common people have had a hand in this Iniquitous Trade. . . . . Should you plead, Sir, the Law of the Land, or the practice of the people, as an excuse in your favour; I answer, that neither the law of the land, nor the commonness of the people's practice in this affair, alters the nature of the Crime at all: for that which is Wrong in its own nature, can never be made right by any law or practice of men." Coffin's Newbury: 342–50.

This was written November 7th, 1780, after the establishment of the new government, and months after the Convention had completed their work and submitted it to the people.

The records of the church at Byfield contain a long account of the controversy between Mr. Parsons and his zealous anti-slavery deacon—neither of whom appears to have been aware that slavery, which was the subject of their dispute, had been abolished, either "virtually" or otherwise.

As late as the 3d of November, 1783, the deacon, who had been suspended from communion on account of the violence of his zeal against the institution, addressed the brethren by a communication, in which he declared that they had shut him out of their communion "for bearing Testimony against the detestable practice of Slave keeping, and making merchandise of human people." He adds, "you can't but be sensible the practice of Slave keeping is Reprobated, and Abhorr'd by the most Godly people through this State," etc. All seem to be utterly ignorant of the abolition intention of the first clause in the Declaration of Rights. See Coffin's Newbury: pp. 342 et seqq.

Let us turn again to the newspapers. Have the advertisements, which provoked the indignation of Doctor Gordon in 1776, disappeared before the new Constitution and the first article of the Bill of Rights? Let the following selections answer the query! They are from papers published during the continuance of the Convention, and the year following, until six months after the new government went into operation.

 

From the Continental Journal, November 25, 1779.

"To be SOLD A likely Negro Girl, 16 years of Age, for no fault, but want of employ."

From the same, December 16th, 1779.

"To be SOLD, A Strong likely Negro Girl," &c.

From the Independent Chronicle, March 9th, 1780.

"To be SOLD, for want of employment, an exceeding likely Negro Girl, aged sixteen."

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"A prejudice has existed in the community, and still exists against them on account of their color, and on account of their being the descendants of slaves. They cannot obtain employment on equal terms with the whites, and wherever they go a sneer is passed upon them, as if this sportive inhumanity were an act of merit. They have been, and are, mostly servants, or doomed to accept such menial employment as the whites decline. They have been, and are, scattered over the Commonwealth, one or more in over two thirds of all the towns; they continue poor, with small means and opportunities for enjoying the social comforts and advantages which are so much at the command of the whites. Thus, though their legal rights are the same as those of the whites, their condition is one of degradation and dependence, and renders existence less valuable, and impairs the duration of life itself. . . . Owing to their color and the prejudice against them, they can hardly be said to receive . . . even so cordial a sympathy as would be shown to them in a slave state, owing to their different position in society." Chickering's Statistical View, p. 156. In view of these facts, it will hardly be deemed strange, that the fame writer calmly contemplated their extinction as a race, comforting himself with the reflection, that "many instances of similar displacement are to be found in history." Ibid., pp. 159–60.

1. "Ad primum nuntium cladis Pompeianæ populus Romanus repente factus est alius."