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LAWS OF MASSACHUSETTS. 261 servitude who shall he judged thereto by authority." (Laws. Cam., 1675, p. 10, tit Bond Slavery.)
Two articles, 'of the brute creature,' respecting cruelty to animals and certain rights of pasturage. Among the 'capital laws ' in the remaining articles is one, Art. 94, s. 10: 'If any man stealeth a man, or mankind, he shall surely be put to death,' with marginal reference to Exodus, 21, 16. (Laws Camb. 1675, p. 15.)'
1652., "And it is further ordered by this Courte and the authoritje thereof^that all Scotchmen, negroes, and Indjans, inhabiting with, or servants to the English * * shall be listed and * • attend traynings as well as the English," &c.
1656. Ordered by the Court, &c., "that henceforth no negroes or Indjans, although servants to the English, shall be armed or permitted to trajne."—Militia Regulations in Mass. Records IV. 1st Part, pp. 86, 397.
1659. The general court empowered the treasurers of the several counties to sell certain Quakers, who refused to pay fines "to any of the English nation at Virginia and Barbadoes."—2 Hazard's Coll. p. 563.3
1660. May. "This court, &c., do declare and order that no man whatsoever shall be admitted to the freedom of this body politick, but such as are members of some church of Christ and
1 A transaction deserves mention in this place as indicative of the public sentiment at this period, which "has been magnified by too precipitate an admiration into a protest on the part of Massachusetts against the African slave trade." 1 Hild. p. 282. It was discovered in the year 1645, that two negroes who had been brought to Boston in a vessel which had sailed thence, 'bound to Guinea to trade for negroes,' had not been bought there in the regular course of traffic, but had been kidnapped on the coast of Africa, and that at the same time the crew, with others from some London vessels, had on a Sunday attacked an African village, and killed many of the inhabitants. The master and crew were charged with the offences of murder, man-stealing, and Sabbath-breaking. The magistrates were not sufficiently clear as to their authority to punish crimes committed on the coast of Africa; but they ordered the negroes to be sent back at the public charge, as having been procured not honestly by purchase, but by the unlawful act of kidnapping, and by a letter ' expressing the indignation of the General Court,' they bore ' witness against the heinous offence of manstealing.' 2 Winthrop, 243 and Appendix M. 1 Banc. 174. Mass. Rec. II, pp. 136, 168.
* In 1649, a penal code was compiled and printed, no copy of which, it is believed, is now in existence. See 1 Hildr. 368.
* This order was never carried into effect, no ship-master being found willing to carry them away.—1 Sewel's Hist. Quakers, 8vo. p. 278.
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in full communion, which they declare to be the true intent of the ancient law," [anno 1631.]—Charters, &c, p. 117.
1664. "In answer to that part of his Majesty's letter, of June 28, 1662, concerning admission of freemen; this Court doth declare that the law prohibiting all persons, except members of churches, and that also for allowance of them in any county court, are hereby repealed, and that all Englishmen presenting a certificate under the hands of the minister of the place where they dwell, that they are orthodox in religion and not vicious in their lives, and also a certificate under the hands of the selectmen, &c, that they are freeholders, &c, rateable, &c., or that they are in full communion with some church among us; if they desire to be freemen they shall be allowed the privilege to have such their desire propounded and put to vote for acceptance to the freedom of the body politick, by the suffrage of the major part, according to the rules of our patent."—Charters, &c, p. 117, IV. Mass. Rec. Part II. p. 117, and p. 56."
The colonies of New Plymouth and Massachusetts Bay became, in the year 16922, united into the Province of Massachusetts Bay.
1698, Laws of, c. 6.—A law forbidding to trade or truck with "any Indian, molato, or negro servant or slave, or other
1 See the king's letter in IV. Mass. Rec. 2d part, p. 164-6, which enjoins "that all freeholders of competent estate, not vicious in conversation and orthodox in religion (though of different persuasions concerning church government) may have their votes in the election of all officers."
* The charter provided for election of deputies to the general court "by the major part of the freeholders and other inhabitants of the respective towns or places who shall be present at such elections." "No freeholder or other person" to have a vote, who should not have a certain freehold estate. "It contained a clause that all and every of the king's subjects "which shall go to and inhabit within" the province, and their children born there, should have the liberties, &c, of subjects in other parts of the empire. The governor and general court were vested with power to enact laws, "so as the same be not repugnant or contrary to the laws of this our realm of England."—Charters, &c., p. 18.
Charters, Sic., p. 213, 229, gives enactments as of 1692, continuing the laws of Massachusetts and Plymouth colonies until the next year, founded on a doubt as to the continuance of the local law. (See 2 Hutch, p. 20,j and p. 214, An act setting forth general privileges, one of which is, "no freeman shall be taken and imprisoned, or be disseized of his freehold or liberties, or his free customs, &c, &c., but by the lawful judgment of his peers, or the law of this province." Also p. 224, An act for the better securing of the liberty of the subject and for prevention of illegal imprisonment. These acts, with some others there given, do not appear in the collections of the Province laws, printed in 1726 and 1759; they appear to have been disallowed by the Crown. See 1 Holmes' An. 440, n. 1 Hildr. 167.
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known dissolute, lewd, and disorderly person, of whom there is just cause of suspicion," and such persons to be punished by whipping for so trading.
17031, Laws of, c. 2.—An act restraining the emancipation of "molatto or negro slaves," without giving security to the town that they should not become chargeable, c. 4. An act that Indians, mulattoes, and negroes shall not be abroad at night after nine o'clock, &c.—Charters, &o, p. 745, 746.
1705, Laws of, c. 6.—Act for the better preventing of a spurious and mixt issue' Enacts that a negro or molatto man committing fornication with "an English woman, or a woman of any other Christian nation," shall be sold out of the province. An "English man, or man of any other Christian nation," committing fornication with a negro or molatto woman, to be whipped, and the woman sold out of the province. "Any negro or mulatto presuming to smite or strike an English person, or of other Christian nation," to "be severely whipped." None of her Majesty's English or Scottish subjects, nor of any other Christian nation within this province, " shall contract matrimony with any negro or mulatto," under a penalty imposed on the person joining them in marriage. "No master shall unreasonably deny marriage to his negro with one of the same nation; any law, usage, or custom to the contrary notwithstanding." All negroes imported are to be entered and duty paid, a drawback to be allowed on exportation.—Charters, &c., p. 747.
1707,3 Laws of, c. 2.—An act for the regulating of free negroes, dec., enacts that they do service "in repairing the high
1 In 1701, the town of Boston instructed its representatives "to put a period to negroes being slaves."—3 Banc. 408.
"In a treatise by C. C. Jones, on the Religions Instruction of the negroes in the U.'S.: Savannah, 1842, p. 35, are extracts from "Entryes for Publications (of marriage) within the town of Boston," date, 1707, 1710, publications of negroes, all as of certain masters there named."
* Winchendon t>. Hatfield (1808), 4 Mass. R. 127-8, Parsons, C. J. "Slavery was introduced into this country soon after its first settlement. The slave was the property of the master, subject to his orders, and to reasonable correction for misbehavior. If the master was guilty of a cruel or unreasonable castigation of his slave, he was liable to be punished for the breach of the peace, and, I believe, the slave was allowed to demand sureties of the peace against a violent and barbarous master. Under these regulations, the treatment of slaves was in general mild and humane, and they suffered hardships not greater than hired servants."
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ways, cleansing the streets, or other service for the common benefit of the place," equivalent to the service of others in training. In case of alarms, that they shall attend on parade and do services at the direction of the commanding officer. That free negroes and mulatto shall be fined for harbouring or entertaining "any negro or mulatto servant," without consent, &c. Punishment is prescribed, by commitment to the House of Correction.1
1 Between the years 1767 and 1773, several unsuccessful attempts were made to procure legislative acts against the slave trade, an account of which is given by Dr. Belknap in his letter to Judge Tucker, vol. iv. Mass. Hist Soc. Coll. p. 201. The latest attempts appear to have failed from the opposition of the governor, acting under his instructions. Dr. Belknap adds, "The blacks had better success in the judicial courts. A pamphlet containing the case of a negro who had accompanied his master from the West Indies to England, and had there sued for and obtained his freedom, was reprinted here, and this encouraged several negroes to sue their masters for their freedom and for recompense, for their service after they had attained the age of twenty-one years. The first trial of this kind was in 1770. The negroes collected money among themselves to carry on the suit, and it terminated favorably for them. Other suits were instituted between that time and the revolution, and the juries invariably gave their verdict in favor of liberty. The pleas on the part of the masters were, that the negroes were purchased in open market, and bills of sale were produced in evidence; that the laws of the province recognised slavery as existing in it, by declaring that no person should manumit his slave without giving bond for his maintenance, &c. On the part of the blacks it was pleaded that the royal charter expressly declared all persons born or residing in the province to be free as the king's subjects in Great Britain; that by the laws of England no man could be deprived of his liberty but by the judgment of his peers; that the laws of the province respecting an evil existing, and attempting to mitigate or regulate it, did not authorize it, and, on some occasions, the plea was, that though the slavery of the parents be admitted, yet no disability of that kind could descend to the children.
"During the revolution-war, the publick opinion was so strongly in favor of the abolition of slavery, that in some of the country towns votes were passed in townmeetings, that they would have no slaves among them, and that they would not exact of masters any bonds for the maintenance of liberated blacks, if they should become incapable of supporting themselves."
In a paper by Emory Washburn, Esq., read before the Mass. Hist. Soc. April, 1857, (Boston Daily Advertiser, July 8, 1857,) the title of the case above mentioned is given as James v. Lechmere. "The term at which the judgment in this action was rendered, was held in Suffolk, Oct. 31, 1769. The action was commenced in the Inferior Court of Common Pleas, May 2, 1769, and the plaintiff declared in trespass for assault and battery, and imprisoning and holding the plaintiff in servitude from April 11, 1758, to the date of the writ Judgment in the lower court was rendered for the defendant. The plaintiff appealed, and in the superior court the defendant was defaulted, and judgment was rendered for an agreed sum with costs." Mr. Washburn says also; "If this were the place for speculation, I should feel myself warranted in assuming that our courts, as early as 1770, considered the attempt to hold any person not captured and brought and sold here, but born here, as a slave, was not justified by law, although he might be the child of a slave." But in Winchendon r. Hatfield, 4 Mass. R. 129, the court says: "It is very certain that the general practice and common usage had been opposed to the opinion that a negro born in the State, before the present constitution, was free, though born of a female slave." And see Journals of Mass. Provincial Congress, pp. 29, 302, a resolution of the Mass. Committee of Safety, of May 20, 1775, respecting the impropriety of enlisting slaves in the army j read in the congress, June 8, but no action taken on it
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1712, Laws of, c. 6.—An act prohibiting the importation or bringing into this province any Indian servants or slaves. The preamble recites the bad character of "Indians and other slaves," the danger of their increase, and the "discouragement to the importation of white Christian servants;" enacts "that all Indians, male and female, of whatever age soever, imported or brought into this province by sea or land from any part or place whatsoever," shall be forfeited to her majesty for the support of government, unless importers give security to remove them.—Charters, &c., p. 748.
§ 221. Legislation Of New Hampshire.
The colonial government of Massachusetts had claimed and exercised jurisdiction over the settlements within the limits of the present State of New Hampshire until the year 1679, when a separate provincial government was constituted under the royal commission.1 The first legislative assembly declared "the general laws and liberties of this province," and a code of capital laws compiled from the Massachusetts code; of which the twelfth is, "if any man stealeth mankind he shall be put to death or otherwise grievously punished."—1 Belknap's Hist. N. H. app. no. 26. This code "was rejected in England as 'fanatical and absurd.' "—1 Hildr. p. 501.'
1 The claim to the soil—antagonistical to that of Massachusetts—was founded on Mason's Patent from the council of Plymouth, England. Whatever legislative power was derived from it was restructed by the usual condition of conformity to the laws of England. Local governments, founded on the written compacts of the settlers, had been formed at Exeter and Dover. 1 Belknap's N. H. app. no. 12, 13. By the commission to Cutts and others, 1679, a legislative Assembly was allowed; the voters for delegates to be determined by the President and Council, and when "writs were issued for calling a general Assembly, the persons in each town who were judged qualified to vote were named in the writs," 1 Belknap's Hist. N. H. p. 91. The legislative power was not expressly limited, though subject to the royal disallowance of its enactments. It was provided in the grant of judicial power—" so always that the form of proceedings in such cases and the judgments thereupon to be given be as consonant and agreeable to the laws and statutes of this our realm of England, as the present state and condition of our subjects inhabiting within the limits aforesaid, and the circumstances of the place will admit." The later commissions provide that the looal shall " not be repugnant, but, as near as may be, agreeable to the laws and statutes of this our realm of England." By.the commission to Wentworth, 1766, the deputies to the Assembly are to be chosen by the "major part of the freeholders." See the commissions in N. Hamp. Prov. Laws, edit. 1771, Story's Comm. §§ 78—81.
* In a journal given in Belknap's Hist. N. H. app. no. 44, as of 1683, "March 14.