It looked like a new resolve. The pronounced and advanced sentiment in favor of the equal rights of all created beings had been taken out, and it appeared now as a war measure, warranted upon military policy. This is the only chaplet that the most devout friends of Massachusetts can weave out of her acts on the Negro problem during the colonial period, to place upon her brow. It attracted wide-spread and deserved attention.
During the following month, on the 14th of October, 1776, the Continental Congress appointed a special committee, Messrs. Lee, Wilson, and Hall, "to consider what is to be done with Negroes taken by vessels of war, in the service of the United States." Here was a profound legal problem presented for solution. According to ancient custom and law, slaves came as the bloody logic of war. War between nations was of necessity international; but while this truth had stood through many centuries, the conversion of the Northern nations of Europe into organized society greatly modified the old doctrine of slavery. Coming under the enlightening influences of modern international law, war captives could not be reduced to slavery.[590] This doctrine was thoroughly understood, doubtless, in the North-American colonies as in Europe. But the almost universal doctrine of property in the Negro, and his status in the courts of the colonies, gave the royal army great advantage in the appropriation of Negro captives, under the plea that they were "property," and hence legitimate "spoils of war;" while, on the part of the colonists, to declare that captured Negroes were entitled to the treatment of "prisoners of war," was to reverse a principle of law as old as their government. It was, in fact, an abandonment of the claim of property in the Negro. It was a recognition of his rights as a soldier, a bestowal of the highest favors known in the treatment of captives of war.[591] But there was another difficulty in the way. Slavery had been recognized in the venerable memorials of the most remote nations. This condition was coeval with the history of all nations, but nowhere regarded as a relation of a local character. It grew up in social compacts, in organized communities of men, and in great and powerful states. It was recognized in private international law; and the relation of master and slave was guarded in their local habitat, and respected wherever found.[592] And this relation, this property in man, did not cease because the slave sought another nation, for it was recognized in all the commercial transactions of nations. Now, upon this principle, the colonists were likely to claim their right to property in slaves captured.
The confederation of the new States was effected on the 1st of March, 1781. Art. IX. gave the "United States in Congress assembled" the exclusive authority of making laws to govern the disposal of all captures made by land or water; to decide which were legal; how prizes taken by the land or naval force of the government should be appropriated, and the right to establish courts of competent jurisdiction in such case, etc. The first legislation under this article was an Act establishing a court of appeals on the 4th of June, 1781. It was discussed on the 25th of June, and again, on the 17th of July, took up a great deal of time, but was recommitted. The committee were instructed to prepare an ordinance regulating the proceedings of the admiralty cases, in the several States, in instances of capture; to codify all resolutions and laws upon the subject; and to request the States to enact such provisions as would be in harmony with the reserved rights of the Congress in such cases as were specified in the Ninth Article. Accordingly, on the 21st of September, 1781, the committee reported to Congress the results of their labor, in a bill on the subject of captures. Upon the question of agreeing to the following section, the yeas and nays were demanded by Mr. Mathews of South Carolina:—
"On the recapture by a citizen of any negro, mulatto, Indian, or other person from whom labor or service is lawfully claimed by another citizen, specific restitution shall be adjudged to the claimant, whether the original capture shall have been made on land or water, a reasonable salvage being paid by the claimant to the recaptor, not exceeding one-fourth part of the value of such labor or service, to be estimated according to the laws of the State of which the claimant shall be a citizen: but if the service of such negro, mulatto, Indian or other person, captured below high-water mark, shall not be legally claimed by a citizen of these United States, he shall be set at liberty."
The delegates from North Carolina, Delaware, New Jersey, and Connecticut, refrained from voting; South Carolina voted in the negative: but it was carried by twenty-eight yeas, against two nays. After a spirited debate, continuing through several days, and having received several amendments, it finally passed on Dec. 4, 1781, as follows:—
"On the recapture by a citizen of any negro, mulatto, Indian, or other person, from whom labor or service is lawfully claimed by a State or a citizen of a State, specific restitution shall be adjudged to the claimant, whether the original capture shall have been made on land or water, and without regard to the time of possession by the enemy, a reasonable salvage being paid by the claimant to the recaptor, not exceeding 1-4th of the value of such labor or service, to be estimated according to the laws of the State under which the claim shall be made.
"But if the service of such negro, mulatto, Indian, or other person, captured below high water mark, shall not be legally claimed within a year and a day from the sentence of the Court, he shall be set at liberty."
It should be carefully observed that the above law refers only to recaptures. It would be interesting to know the views the committee entertained in reference to slaves captured by the ministerial army. Nothing was said about this interesting feature of the case. Why Congress did not claim proper treatment of the slaves captured by the enemy while in the service of the United Colonies, is not known. Doubtless its leaders saw where the logic of such a position would lead them. The word "another" was left out of the original measure, and was made to read, in the one that passed, "a State or citizen;" as if it were feared that, by implication, a Negro would be recognized as a citizen.
By the proclamation of Sir Henry Clinton, already mentioned in the preceding chapter, Negroes were threatened with sale for "the public service;" and Mr. Jefferson in his letter to Mr. Gordon (see preceding chapter), says the enemy sold the Negroes captured in Virginia into the West Indies. After the capture of Stony Point by Gen. Wayne, concerning two Negroes who fell into his hands, he wrote to Lieut.-Col. Meigs from New Windsor on the 25th of July, 1779, as follows:—
"The wish of the officers to free the three Negroes after a few Years Service meets my most hearty approbation but as the Chance of War or other Incidents may prevent the officer [owner] from Compling with the Intention of the Officers it will be proper for the purchaser or purchasers to sign a Condition in the Orderly Book.
" ... I wou'd cheerfully join them in their Immediate Manumission—if a few days makes no material difference I could wish the sale put off until a Consultation may be had, & the opinion of the Officers taken on this Business."[593]