George Williams - History of the Negro Race in America from 1619 to 1880 (Vol. 1&2)

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; 276and, 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, 277armed 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;" 281and 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