[679] According to Hurd, Law of Freedom and Bondage, I, 225, "the involuntary servitude of Indians and negroes in the several colonies originated under a law not promulgated by legislation, and rested upon the prevalent views of universal jurisprudence, or of the law of nations, supported by the express or implied authority of the home Government." Compare Washburn, "The Extinction of Slavery in Mass.," 4 Mass. Hist. Coll. (1857), IV, 333-46; the same in Procds. Mass. Hist. Soc. (1855-58), 188 ff.; and Belknap's answer to Tucker's Queries (1795), in 1 Mass. Hist. Coll., IV, 191-211, which on the points under consideration is very superficial and misleading.
[680] See Justice Gray's note to the case of Oliver v. Sale: Quincy's Reports, 29. The authorities there cited are misleading and do not establish the assertions quoted. The well-known apology for Massachusetts slavery by Nathan Dane in his Abridgment, II, 413, 426, 427, is equally unsupported by the facts. The same view as that of Gray is taken by Chief Justice Dana in Littleton v. Tuttle (1796): 4 Mass. Reports, 128, note; by Chief Justice Shaw in Commonwealth v. Aves: 18 Pickering's Reports, 208, 209; and it is repeated in Cushing's Reports, 410. On the other hand, in Winchendon v. Hatfield: 4 Mass. Reports (1806), 123, Chief Justice Parsons correctly says "slavery was introduced" in Massachusetts "soon after its first settlement, and was tolerated until the ratification of the present constitution" in 1780. "The issue of the female slave, according to the maxim of the civil law, was the property of her master." The same opinion is held in Perkins, Town Treasurer of Topsfield v. Emerson (1799): Dane's Abridgment, II, 412; and by Chief Justice Parker in Andover v. Canton (1816): 13 Mass. Reports, 551, 552. In 1865 the errors of Gray, Dane, Webster, and others were fully exposed by Moore, Notes on the History of Slavery in Mass., 10 ff., 22 ff., 94 ff., 98 ff.; yet it is curious to see Bishop, Marriage, Divorce, and Separation (Chicago, 1891), I, 179 n. 1, 282, still accepting Gray's dictum as authority.
[681] Palfrey, Hist. of New England, II, 30, note.
[682] Compare sec. 91 of the "Body of Liberties," upon which the apologists have mainly rested their case, with the later version of the provision: Whitmore, Col. Laws of Mass. (1660-72), 53, 125; ibid. (1672-86), 10; and read Moore's convincing argument as to the significance of the altered wording: Notes on the Hist. of Slavery in Mass., 10-18. For Connecticut see Fowler, "The Historical Status of the Negro," in Dawson's Hist. Mag., 3d series, III, 12-18, 81-85, 148-53, 260-66; Steiner, "Hist. of Slavery in Conn.," J. H. U. S., XI, 371-452; and Hurd, Law of Freedom and Bondage, I, 267 ff.
[683] In 1700 Sewall, then a judge of the superior court, wrote an anti-slavery tract entitled The Selling of Joseph. It is reprinted in the Procds. Mass. Hist. Soc. (1863-64), 161-65; with the Diary in 5 Mass. Hist. Coll., VI, 16-20, note; and in Moore, Notes on Hist. of Slavery in Mass., 83-87. The next year John Saffin, a judge of the same court, replied to Sewall in A Brief and Candid Answer (Boston, 1701); reprinted by Moore, op. cit., 251-56. Compare Sewall's letter To the Revd. & aged Mr. John Higginson (Apr. 13, 1706), and his extract from the Athenian Oracle, II, 460-63, both reprinted by Moore, op. cit., 89-94. Sewall favored a law requiring "that all importers of Negroes shall pay 40 shillings per head to discourage the bringing of them." Cf. Bliss, Side Glimpses from the Col. Meeting-House, 21; Weeden, Ecc. and Soc. Hist., II, 450.
[684] According to Bliss, "as time passed on and the slave trade flourished," Sewall "must have dismissed his anti-slavery opinions;" for the following advertisement appears in the Boston News-Letter of June 23, 1726: "To be sold by Mr. Samuel Sewall at his House in the Common, Boston, several likely young Negro Men & Boys Just Arrived."—Side Glimpses from the Col. Meeting-House, 21.
[685] "An Act for the better preventing of a spurious and mixt issue" (Dec. 5, 1705): Acts and Resolves, I, 578, 579; Charters and Gen. Laws, Appendix, 748: "Be it enacted ... that 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 Molatto: nor shall any ... presume to join any such in Marriage, on pain of forfeiting ... fifty pounds."
[686] By the act of 1786 intermarriage of whites with Indians, negroes, and mulattoes is forbidden.
[687] Of the bill for the act of 1705 Sewall writes: "Deputies send in a Bill against fornication or Marriage of White men with Negros or Indians; with extraordinary penalties.... If it be pass'd, I fear twill be an O[=p]ression provoking to God, and that which will promote Murders and other Abominations. I have got the Indians out of the Bill, and some mitigation for them [the Negroes] left in it, and the clause about their Masters not denying their Marriage." Diary: in 5 Mass. Hist. Coll., VI, 143.
[688] Ibid., 22. The MSS. Records of the General Sessions of Suffolk (Jan. 30, 1709-10) contain the following evidence: "Upon reading the Petition of Jack Negroman Servant ... relating to his ... being Married to Esther a Negro Woman Servant [to another master] ... Ordered that [he] ... be not denyed marriage provided he attend the Directions of the law for the Regulation of Marriages." Compare "Flora's case" (1758) in MSS. Records of the Superior Court of Judicature (1757-59), 295, where the court held that the child of a female slave "never married according to any of the Forms prescribed by the Laws of this Land," by a person supposed also to be a slave, was not a bastard. From this decision it is argued that in Massachusetts all actual marriages were deemed good without any formal solemnization or the presence of priest or magistrate. Cf. Bishop, Mar., Div., and Sep., I, 179.