It seems that by the Fundamental Laws, adopted by the people in 1641, the first two offences were punishable by death, and all of them "capitall, by the law of God." The court doubted its jurisdiction over crimes committed on the distant coast of Guinea. But article ninety-one of "The Body of Liberties" determined who were lawful slaves,—those who sold themselves or were sold, "lawful captives taken in just wares," and those "judged thereto by authority." Had the unfortunate Negroes been purchased, there was no law in Massachusetts to free them from their owners; but having been kidnapped, unlawfully obtained, the court felt that it was its plain duty to bear witness against the "sin of man-stealing." For, in the laws adopted in 1641, among the "Capital Laws," at the latter part of article ninety-four is the following: "If any man stealeth a man, or mankind, he shall surely be put to death."[293] There is a marginal reference to Exod. xxi. 16. Dr. Moore does not refer to this in his elaborate discussion of statute on "bond slavery." And Winthrop says that the magistrates decided that the Negroes, "having been procured not honestly by purchase, but by the unlawful act of kidnaping," should be returned to their native country. That there was a criminal code in the colony, there can be no doubt; but we have searched for it in vain. Hildreth[294] says it was printed in 1649, but that there is now no copy extant.
The court issued an order about the return of the kidnapped Negroes, which we will give in full, on account of its historical value, and because of the difference of opinion concerning it.
"The general court conceiving themselves bound by the first opportunity to bear witness against the heinous, and crying sin of man-stealing, as also to prescribe such timely redress for what is past, and such a law for the future, as may sufficiently deter all others belonging to us to have to do in such vile and odious courses, justly abhorred of all good and just men, do order that the negro interpreter with others unlawfully taken, be by the first opportunity at the charge of the country for the present, sent to his native country (Guinea) and a letter with him of the indignation of the court thereabouts, and justice thereof, desiring our honored governor would please put this order in execution."[295]
This "protest against man-stealing" has adorned and flavored many an oration on the "position of Massachusetts" on the slavery question. It has been brought out "to point a moral and adorn a tale" by the proud friends of the Commonwealth; but the law quoted above against "man-stealing," the language of the "protest," the statute on "bond servitude," and the practices of the colonists for many years afterwards, prove that many have gloried, but not according to the truth.[296] When it came to the question of damages, the court said: "For the negars (they being none of his, but stolen) we thinke meete to allow nothing."[297]
So the decision of the court was based upon law,—the prohibition against "man-stealing." And it should not be forgotten that many of the laws of the colony were modelled after the Mosaic code. It is referred to, apologetically, in the statute of 1641; and no careful student can fail to read between the lines the desire there expressed to refer to the Old Testament as authority for slavery. Now, slaves were purchased by Abraham, and the New-England "doctors of the law" were unwilling to have slaves stolen when they could be bought[298] so easily. Dr. Moore says, in reference to the decision,—
"In all the proceedings of the General Court on this occasion, there is not a trace of anti-slavery opinion or sentiment, still less of anti-slavery legislation; though both have been repeatedly claimed for the honor of the colony."[299]
And Dr. Moore is not alone in his opinion; for Mr. Hildreth says this case "in which Saltonstall was concerned has been magnified by too precipitate an admiration into a protest on the part of Massachusetts against the African slave-trade. So far, however, from any such protest being made, at the very birth of the foreign commerce of New England the African slave-trade became a regular business."[300] There is now, therefore, no room to doubt but what the decision was rendered on a technical point of law, and not inspired by an anti-slavery sentiment.
As an institution, slavery had at first a stunted growth in Massachusetts, and did not increase its victims to any great extent until near the close of the seventeenth century. But when it did begin a perceptible growth, it made rapid and prodigious strides. In 1676 there were about two hundred slaves in the colony, and they were chiefly from Guinea and Madagascar.[301] In 1680 Gov. Bradstreet, in compliance with a request made by the home government, said that the slave-trade was not carried on to any great extent. They were introduced in small lots, and brought from ten to forty pounds apiece. He thought the entire number in the colony would not reach more than one hundred and twenty-five. Few were born in the colony, and none had been baptized up to that time.[302] The year 1700 witnessed an unprecedented growth in the slave-trade. From the 24th of January, 1698, to the 25th of December, 1707,[303] two hundred Negroes were imported into the colony,—quite as many as in the previous sixty years. In 1708 Gov. Dudley's report to the board of trade fixed the number of Negroes at five hundred and fifty, and suggested that they were not so desirable as white servants, who could be used in the army, and in time of peace turn their attention to planting. The prohibition against the Negro politically and in a military sense, in that section of the country, made him almost valueless to the colonial government struggling for deliverance from the cruel laws of the mother country. The white servant could join the "minute-men," plough with his gun on his back, go to the church, and, having received the blessing of the parish minister, could hasten to battle with the proud and almost boastful feelings of a Christian freeman! But the Negro, bond and free, was excluded from all these sacred privileges. Wronged, robbed of his freedom,—the heritage of all human kind,—he was suspicioned and contemned for desiring that great boon. On the 17th of February, 1720, Gov. Shute placed the number of slaves—including a few Indians—in Massachusetts at two thousand. During the same year thirty-seven males and sixteen females were imported into the colony.[304] We are unable to discover whether these were counted in the enumeration furnished by Gov. Shute or not. We are inclined to think they were included. In 1735 there were two thousand six hundred[305] bond and free in the colony; and within the next seventeen years the Negro population of Boston alone reached 1,541.[306]