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

"'What!' cries our good people here, 'Negro slaves in Boston! It cannot be.' It is nevertheless true. For though the Bostonians have grounded their rebellion on the 'immutable laws of nature,' yet, notwithstanding their resolves about freedom in their Town-meetings, they actually have in town 2,000 Negro slaves." 364

These trying and exasperating circumstances were but the friendly precursors of a spirit of universal liberty.

In England the decision of Lord Mansfield in the Sommersett 365case had encouraged the conscientious few who championed the cause of the slave. Charles Stewart, Esq., of Boston, Mass., had taken to London with him his Negro slave, James Sommersett. The Negro was seized with a sickness in the British metropolis, and was thereupon abandoned by his master. He afterwards regained his health, and secured employment. His master, learning of his whereabouts, had him arrested, and placed in confinement on board the vessel "Ann and Mary," Capt. John Knowls, commander, then lying in the Thames, but soon to sail for Jamaica, where Sommersett was to be sold.

"On the 3rd of Dec., 1771, affidavits were made by Thomas Walklin, Elizabeth Cade, and John Marlow, that James Sommersett, a Negro, was confined in irons on board a ship called the Ann and Mary , John Knowls commander, lying in the Thames, and bound for Jamaica. Lord Mansfield, upon the prayer of the above subscribers, allowed a writ of habeas corpus , requiring the return of the body of Sommersett before his lordship with an explanation of the cause of his detention. On the 9th of Dec., Capt. Knowls produced the body of Sommersett in Court. Lord Mansfield, after a preliminary examination, referred the matter to the Court of King's Bench, and, therefore, took sureties, and bound Sommersett over 'till 'the 2nd day of the next Hillary term.' At the time appointed the defendant with counsel, the reputed master of the Negro man Sommersett, and Capt. John Knowls, appeared before the court. Capt. Knowls recited the reasons that led him to detain Sommersett: whereupon the counsel for the latter asked for time in which to prepare an argument against the return. Lord Mansfield gave them until the 7th of February. At the time appointed Mr. Sergeant Davy and Mr. Sergeant Glynn argued against the return, and had further argument 'postponed' till Easter term,' when Mr. Mansfield, Mr. Alleyne, and Mr. Hargrave argued on the same side. 'The only question before us is whether the cause on the return is sufficient. If it is, the Negro must be remanded; if it is not, he must be discharged. The return states that the slave departed and refused to serve, whereupon he was kept to be sold abroad. So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been exceedingly different in different countries. The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasions, and time itself from whence it was created is erased from memory. It is so odious that nothing can be suffered to support it but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England, and therefore the black must be discharged.'"

The influence of this decision was wide-spread, and hurtful to slavery in the British colonies in North America. It poured new life into the expiring hopes of the Negroes, and furnished a rule of law for the advocates of "freedom for all." It raised a question of law in all the colonies as to whether the colonial governments could pass an Act legalizing that which was "contrary to English law." 366

Notwithstanding the general and generous impulse for liberty, the indissoluble ties of avarice, and the greed for the unearned gains of the slave-trade, made public men conservate to conserve the interests of those directly interested in the inhuman traffic.

"In an age when the interests of trade guided legislation, this branch of commerce possessed paramount attractions. Not a statesman exposed its enormities; and, if Richard Baxter echoed the opinions of Puritan Massachusetts, if Southern drew tears by the tragic tale of Oronooko, if Steele awakened a throb of indignation by the story of Inkle and Yarico, if Savage and Shenstone pointed their feeble couplets with the wrongs of 'Afric's sable children,' if the Irish metaphysician Hutcheson, struggling for a higher system of morals—justly stigmatized the traffic; yet no public opinion lifted its voice against it. English ships, fitted out in English cities, under the special favor of the royal family, of the ministry, and of parliament, stole from Africa, in the years from 1700 to 1750, probably a million and a half of souls, of whom one-eighth were buried in the Atlantic, victims of the passage; and yet in England no general indignation rebuked the enormity; for the public opinion of the age was obedient to materialism." 367

Humane masters who desired to emancipate their slaves were embarrassed by a statute unfriendly to manumission. The Act of 1703 368deterred many persons from emancipating their slaves on account of its unjust and hard requirements. And under it quite a deal of litigation arose. It required every master who desired to liberate his slave, before doing so, to furnish a bond to the treasurer of the town or place in which he resided, in a sum not less than fifty pounds. 369This was to indemnify the town or place in case the Negro slave thus emancipated should, through lameness or sickness, become a charge. In case a master failed to furnish such security, his emancipated slaves were still contemplated by the law as in bondage, "notwithstanding any manumission or instrument of freedom to them made or given." Judge Sewall, in a letter to John Adams, cites a case in point.

"A man, by will, gives his Negro his liberty, and leaves him a legacy. The executor consents that the Negro shall be free, but refuseth to give bond to the selectmen to indemnify the town against any charge for his support in case he should become poor (without which, by the province law, he is not manumitted), or to pay him the legacy.

Query . Can he recover the legacy, and how?

I have just observed that in your last you desire me to say something towards discouraging you from removing to Providence; and you say, any thing will do. At present, I only say, you will do well enough where you are. I will explain myself, and add something further, in some future letter. I have not time to enlarge now, for which I believe you will not be inconsolably grieved. So, to put you out of pain, your hearty friend,

Jonathan Sewall." 370

Mr. Adams replied as follows:—

"Now. En mesure le manner . The testator intended plainly that his negro should have his liberty and a legacy; therefore the law will presume that he intended his executor should do all that without which he could have neither. That this indemnification was not in the testator's mind, cannot be proved from the will any more than it could be proved, in the first case above, that the testator did not know a fee simple would pass a will without the word heirs; nor than, in the second case, that the devise of a trust, that might continue forever, would convey a fee-simple without the like words. I take it, therefore, that the executor of this will is, by implication, obliged to give bonds to the town treasurer, and, in his refusal, is a wrongdoer; and I cannot think he ought to be allowed to take advantage of his own wrong, so much as to allege this want of an indemnification to evade an action of the case brought for the legacy by the negro himself.

But why may not the negro bring a special action of the case against the executor, setting forth the will, the devise of freedom and a legacy, and then the necessity of indemnification by the province law, and then a refusal to indemnify, and, of consequence, to set free and to pay the legacy?