History of the Negro Race in America from 1619 to 1880
Chapter 51 : THE NEGRO WAS CHATTEL OR REAL PROPERTY.--HIS LEGAL STATUS DURING HIS NEW RELATION AS A

THE NEGRO WAS CHATTEL OR REAL PROPERTY.--HIS LEGAL STATUS DURING HIS NEW RELATION AS A SOLDIER.--RESOLUTION INTRODUCED IN THE Ma.s.sACHUSETTS HOUSE OF REPRESENTATIVES TO PREVENT THE SELLING OF TWO NEGROES CAPTURED UPON THE HIGH SEAS.--THE CONTINENTAL CONGRESS APPOINTS A COMMITTEE TO CONSIDER WHAT SHOULD BE DONE WITH NEGROES TAKEN IN VESSELS OF WAR IN THE SERVICE OF THE UNITED COLONIES.--CONFEDERATION OF THE NEW STATES.--SPIRITED DEBATE IN CONGRESS RESPECTING THE DISPOSAL OF RECAPTURES.--THE SPANISH s.h.i.+P "VICTORIA" CAPTURES AN ENGLISH VESSEL HAVING ON BOARD THIRTY FOUR NEGROES TAKEN FROM SOUTH CAROLINA--THE NEGROES RECAPTURED BY VESSELS BELONGING TO THE STATE OF Ma.s.sACHUSETTS.--THEY ARE DELIVERED TO THOMAS KNOX, AND CONVEYED TO CASTLE ISLAND.--COL. PAUL REVERE HAS CHARGE OF THE SLAVES ON CASTLE ISLAND.--Ma.s.sACHUSETTS Pa.s.sES A LAW PROVIDING FOR THE SECURITY, SUPPORT, AND EXCHANGE OF PRISONERS BROUGHT INTO THE STATE.--GEN. HANc.o.c.k RECEIVES A LETTER FROM THE GOVERNOR OF SOUTH CAROLINA RESPECTING THE DETENTION OF NEGROES.--IN THE PROVINCIAL ARTICLES BETWEEN THE UNITED STATES OF AMERICA AND HIS BRITANNIC MAJESTY, NEGROES WERE RATED AS PROPERTY.--AND ALSO IN THE DEFINITE TREATY OF PEACE BETWEEN THE UNITED STATES OF AMERICA AND HIS BRITANNIC MAJESTY.--AND ALSO IN THE TREATY OF PEACE OF 1814, BETWEEN HIS BRITANNIC MAJESTY AND THE UNITED STATES, NEGROES WERE DESIGNATED AS PROPERTY.--GEN. WAs.h.i.+NGTON'S LETTER TO BRIG. GEN. RUFUS PUTNAM IN REGARD TO A NEGRO IN HIS REGIMENT CLAIMED BY MR.

HOBBY.--ENLISTMENT IN THE ARMY DID NOT ALWAYS WORK A PRACTICAL EMANc.i.p.aTION.

When the Revolutionary War began, the legal status of the Negro slave was clearly defined in the courts of all the colonies. He was either chattel or real property. The question naturally arose as to his legal status during his new relation as a soldier. Could he be taken as property, or as a prisoner of war? Was he booty, or was he ent.i.tled to the usage of civilized warfare,--a freeman, and therefore to be treated as such?

The Continental Congress, Nov. 25, 1775, pa.s.sed a resolution recommending the several colonial legislatures to establish courts that should give jurisdiction to courts, already in existence, to dispose of "cases of capture." In fact, and probably in law, Congress exercised power in cases of appeal. Moreover, Congress had prescribed a rule for the distribution of prizes. But, curiously enough, Ma.s.sachusetts, in 1776, pa.s.sed an Act declaring, that, in case captures were made by the forces of the colony, the local authorities should have complete jurisdiction in their distribution; but, when prizes or captives were taken upon colonial territory by the forces of the United Colonies, the distributions should be made in accordance with the laws of Congress. This was but a single ill.u.s.tration of the divided sovereignty of a crude government. That there was need of a uniform law upon this question, there could be no doubt, especially in a war of the magnitude of the one that was then being waged.

On the 13th of September, 1776, a resolution was introduced into the Ma.s.sachusetts House of Representatives, "to prevent the sale of two negro men lately brought into this state, as prisoners taken on the high seas, and advertised to be sold at Salem, the 17th inst., by public auction."[588] The resolve in full is here given:--

"IN THE HOUSE OF REPRESENTATIVES, SEPT. 13, 1776:

"Whereas this House is credibly informed that two negro men lately brought into this State as prisoners taken on the High Seas are advertised to be sold at Salem, the 17th instant, by public auction,

"_Resolved_, That the selling and enslaving the human species is a direct violation of the natural rights alike vested in all men by their Creator, and utterly inconsistent with the avowed principles on which this and the other United States have carried their struggle for liberty even to the last appeal, and therefore, that all persons connected with the said negroes be and they hereby are forbidden to sell them or in any manner to treat them otherways than is already ordered for the treatment of prisoners of war taken in the same vessell or others in the like employ and if any sale of the said negroes shall be made, it is hereby declared null and void.

"Sent up for concurrence.

"SAM'L. FREEMAN, _Speaker_, P.T.

"IN COUNCIL, Sept. 14, 1776. Read and concurred as taken into a new draught. Sent down for concurrence.

"JOHN AVERY, _Dpy. Secy._

"IN THE HOUSE OF REPRESENTATIVES, Sept. 14, 1776. Read and non-concurred, and the House adhere to their own vote. Sent up for concurrence.

"J. WARREN, _Speaker_.

"IN COUNCIL, Sept. 16, 1776. Read and concurred as now taken into a new draft. Sent down for concurrence.

"JOHN AVERY, _Dpy. Secy._

"IN THE HOUSE OF REPRESENTATIVES, Sept. 16, 1779. Read and concurred.

"J. WARREN, _Speaker_.

"Consented to.

"JER. POWELL, JABEZ FISHER, W. SEVER, B. WHITE, B. GREENLEAF, MOSES GILL, CALEB CUs.h.i.+NG, DAN'L HOPKINS, B. CHADBOURN, BENJ. AUSTIN, JOHN WHETCOMB, WM. PHILLIPS, ELDAD TAYLOR, D. SEWALL, S. HOLTEN, DAN'L HOPKINS."

On the Journal of the House, p. 106, appears the following record,--

"David Sewall, Esq., brought down the resolve which pa.s.sed the House yesterday, forbidding the sale of two negroes, with the following vote of Council thereon, viz _In Council_, Sept. 14, 1776. Read and concurred, as taken into a new draught. Sent down for concurrence. Read and non-concurred, and the House adhere to their own vote. Sent up for concurrence."

The resolve, as it originally appeared, was dragged through a tedious debate, non-concurred in by the House, recommitted, remodelled, and sent back, when it finally pa.s.sed.

"Lx.x.xIII. Resolve forbidding the sale of two Negroes brought in as Prisoners; Pa.s.sed September 14, [16th,] 1776.

"Whereas this Court is credibly informed that two Negro Men lately taken on the High Seas, on board the sloop _Hannibal_, and brought into this State as Prisoners, are advertized to be sold at _Salem_, the 17th instant, by public Auction:

"_Resolved_, That all Persons concerned with the said Negroes be, and they are hereby forbidden to sell them, or in any manner to treat them otherwise than is already ordered for the Treatment of Prisoners taken in like manner; and if any Sale of the said Negroes shall be made it is hereby declared null and void, and that whenever it shall appear that any Negroes are taken on the High Seas and brought as Prisoners into this State, they shall not be allowed to be Sold, nor treated any otherwise than as Prisoners are ordered to be treated who are taken in like Manner."[589]

It looked like a new resolve. The p.r.o.nounced 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 Ma.s.sachusetts 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 b.l.o.o.d.y 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 ent.i.tled 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 a.s.sembled" 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 establis.h.i.+ng 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 rest.i.tution 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 pa.s.sed 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 rest.i.tution 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 pa.s.sed, "_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]

In June, 1779, a Spanish s.h.i.+p called "Victoria" sailed from Charleston, S.C., for Cadiz. During the first part of her voyage she was run down by a British privateer; but, instead of being captured, she seized her a.s.sailant, and found on board thirty-four Negroes, whom the English vessel had taken from plantations in South Carolina. The Spaniards got the Negroes on board their s.h.i.+p, disabled the English vessel, and then dismissed her. Within a few days she was taken by two British letters-of-marque, and headed for New York. During her pa.s.sage thither she was re-captured by the "Hazard" and "Tyrannicide," armed vessels in the service of Ma.s.sachusetts, and taken into the port of Boston. By direction of the Board of War she was ordered into the charge of Capt. Johnson, and was unloaded on the 21st of June. The Board of War reported to the Legislature that there were thirty-four Negroes "taken on the high seas and brought into the state." On the 23d of June [1780] the Legislature ordered "that Gen. Lovell, Capt.

Adams, and Mr. Cranch, be a committee to consider what is proper to be done with a number of negroes brought into port in the prize s.h.i.+p called the[594] Lady Gage."[595] On the 24th of June, "the committee appointed to take into consideration the state and circ.u.mstances of a number of negroes lately brought into the port of Boston, reported a resolve directing the Board of War to inform our delegates in Congress of the state of facts relative to them, to put them into the barracks on Castle Island, and cause them to be supplied and employed."[596]

The resolve pa.s.sed without opposition.

"CLx.x.x. _Resolve on the Representation of the Board of War respecting a number of negroes captured and brought into this State_. Pa.s.sed June 24, 1779.

"On the representation made to this Court by the Board of War respecting a number of negroes brought into the Port of Boston, on board the Prize s.h.i.+p Victoria:

"_Resolved_, that the Board of War be and they are hereby directed forthwith to write to our Delegates in Congress, informing them of the State of Facts relating to said Negroes, requesting them to give information thereof to the Delegates from the State of _South Carolina_, that so proper measures may be taken for the return of said Negroes, agreeable to their desire.

"And it is further _Resolved_, that the Board of War be and they hereby are directed to put the said Negroes, in the mean time, into the barracks on Castle Island in the Harbor of Boston, and cause them to be supplied with such Provision and Clothing as shall be necessary for their comfortable support, putting them under the care and direction of some Prudent person or Persons, whose business it shall be to see that the able-bodied men may be usefully employed during their stay in carrying on the Fortifications on said Island, or elsewhere within the said Harbor; and that the Women be employed according to their ability in Cooking, Was.h.i.+ng, etc. And that the said Board of War keep an exact Account of their Expenditures in supporting said Negroes."[597]

The Negroes were delivered to Thomas Knox on the 28th of June, and were conveyed "to Castle Island pr. Order of Court." The Board of War voted the "34 Negroes delivered" rations. Lieut.-Col. Paul Revere was instructed to "issue to the Negroes at Castle Island--1 lb. of Beef, 1 lb. of Rice pr. day." The following letter is not without interest:--

"WAR OFFICE, 28 June, 1779.

"LT.-COL. REVERE,