Chapter 28

[677]Palfrey,Hist. of New England, II, 30, note;cf.Moore,loc. cit., 135-37.[678]Sumner, in his speech in the Senate, June 28, 1854:Works, III, 384.[679]According toHurd,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 thelaw of nations, supported by the express or implied authority of the home Government." CompareWashburn, "The Extinction of Slavery in Mass.," 4Mass. Hist. Coll.(1857), IV, 333-46; the same inProcds. Mass. Hist. Soc.(1855-58), 188 ff.; andBelknap'sanswer toTucker'sQueries(1795), in 1Mass. 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 Oliverv.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 byNathan Danein hisAbridgment, II, 413, 426, 427, is equally unsupported by the facts. The same view as that of Gray is taken by Chief Justice Dana in Littletonv.Tuttle (1796): 4Mass. Reports, 128, note; by Chief Justice Shaw in Commonwealthv.Aves: 18Pickering's Reports, 208, 209; and it is repeated inCushing's Reports, 410. On the other hand, in Winchendonv.Hatfield: 4Mass. 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 Topsfieldv.Emerson (1799):Dane'sAbridgment, II, 412; and by Chief Justice Parker in Andoverv.Canton (1816): 13Mass. Reports, 551, 552. In 1865 the errors of Gray, Dane, Webster, and others were fully exposed byMoore,Notes on the History of Slavery in Mass., 10 ff., 22 ff., 94 ff., 98 ff.; yet it is curious to seeBishop,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 readMoore'sconvincing argument as to the significance of the altered wording:Notes on the Hist. of Slavery in Mass., 10-18. For Connecticut seeFowler, "The Historical Status of the Negro," inDawson'sHist. 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; andHurd,Law of Freedom and Bondage, I, 267 ff.[683]In 1700 Sewall, then a judge of the superior court, wrote an anti-slavery tract entitledThe Selling of Joseph. It is reprinted in theProcds. Mass. Hist. Soc.(1863-64), 161-65; with theDiaryin 5Mass. Hist. Coll., VI, 16-20, note; and inMoore,Notes on Hist. of Slavery in Mass., 83-87. The next yearJohn Saffin, a judge of the same court, replied to Sewall inA Brief and Candid Answer(Boston, 1701); reprinted byMoore,op. cit., 251-56. CompareSewall'sletterTo the Revd. & aged Mr. John Higginson(Apr. 13, 1706), and his extract from theAthenian Oracle, II, 460-63, both reprinted byMoore,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 BostonNews-Letterof 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 1705Sewallwrites: "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 5Mass. Hist. Coll., VI, 143.[688]Ibid., 22. TheMSS. 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) inMSS. 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.[689]By the act of 1705 already cited:Acts and Resolves, I, 578.[690]So in the Pequot War: 4Mass. Hist. Coll., III, 360; in King Philip's War; and by theArticles of Confederation(1643), inPlymouth Col. Rec., IX, 4. CompareMoore,Notes on Hist. of Slavery in Mass., 1-10, 30-40.[691]For an interesting discussion of this point seeBliss'schapter on "Rum and Slavery,"Side-Glimpses from the Col. Meeting-House, 12 ff.; andWeeden,Ecc. and Soc. Hist., II, 449-72. Such men as Peter Faneuil and Thomas Amory, of Boston, were "deep" in the rum and slavery business:Bliss,op. cit., 15.[692]For examples of advertisements of slave auctions in New England seeBliss,op. cit., 15-19.[693]"A deacon of the church at Newport esteemed the slave trade with its rum accessories as home missionary work. It is said that on the first Sunday after the arrival of his slaves he was accustomed to offer thanks 'that an overruling Providence had been pleased to bring to this land of freedom another cargo of benighted heathen to enjoy the blessings of a Gospel dispensation.'"—Bliss,op. cit., 22. In general on the slave trade as missionary work seeFroude,History of England, VIII, 439.[694]Bancroft,Hist. of U. S.(New York, 1888), II, 275, 276. On this subject seeBruce,Economic Hist. of Virginia, II, 94-98; the discussion byFiske,Old Virginia and Her Neighbors, I, 16; II, 192-94; andGoodwin,The Colonial Cavalier, 178, who says: "Baptism was permitted to the slave, but with the distinct understanding that it was to make no difference in the condition of bondage of these brothers in Christ." The Virginia law of 1667 will be found inHening,Statutes, II, 260.[695]It was consecrated "sans égard à la religion de l'esclave":Carlier,Histoire du peuple américain, I, 364;cf.alsoHildreth,Hist. of U. S., I, 372.[696]Bliss,op. cit., 92.[697]Taken fromMoore,Notes on Hist. of Slavery in Mass., 92, note, who citesRecords as Reported by Rev. C. Chapin, D.D., Quoted in Jones's Religious Instruction of the Negroes, 34.Cf.Steiner, "Hist. of Slavery in Conn.,"J. H. U. S., XI, 386.[698]Athenian Oracle, II, 460-63: inMoore,Notes on Hist. of Slavery in Mass., 93, 94.[699]Moore,op. cit., 55.[700]Sewall,The Selling of Joseph: in 5Mass. Hist. Coll., VI, 17, 18.[701]Belknap'sanswer toTucker'sQueries: in 1Mass. Hist. Coll., IV, 200;cf.Moore,Notes on Hist. of Slavery in Mass., 57.[702]Moore,Slave Marriages in Mass.:Dawson'sHist. Mag., 2d series, V, 136, reprintingHobart'sSerious Address to the Episcopal Separation in New England(1748), 77, 78; and quoting in replyDr. John Beach'sCalm and Dispassionate Vindication, 39, who in logic characteristic of the age argues in "substance that as a Slave was capable of being made free, and so of having property in a large estate, there was no profaneness" in the use of the phrase mentioned.[703]"And finally," continues the minister, "I exhort & charge you to beware lest you give place to the Devil, so as to take Occasion from the Licence now given you, to be lifted up withPride, and thereby fall under the Displeasure, not of Man only, but of God also; for, it is written, that God resisteth the Proud, but he giveth Grace to the humble."I shall now conclude wthPrayerfor you, that you may become good Christians, and that you may be enabled to conduct as such; and in particr, that you may have Grace to behave suitably towards each Other, as also dutifully towards your Masters & Mistresses, not wthEye-Service, as Men-pleasers, but as yeservtsof Chrt, doing yewill of God from yeheart." Published byMoore,Slave Marriages in Mass.: inDawson'sHist. Mag., 2d series, V, 137.[704]Hening,Statutes, I, 156, 157. See also the act of 8 Chas. I., expressed in about the same terms,ibid., 181.[705]Ibid., 158, 183.[706]Ibid., 433. By the act of 1646 the penalty for celebration without license or banns was 1,000 pounds of tobacco:ibid., 332.[707]Ibid., II, 49-51. By the law of 1788 the issue of even "incestuous" marriages are made legitimate:ibid., XII, 689.[708]See chap. xiv, i,b), below.[709]Hening,Statutes, III, 149-51.[710]See the act of 1705,ibid., 443, 444; and that of 1748,ibid., VI, 83.[711]Ibid., III, 441, 442.[712]See chap, xvi, where this legislation is treated in detail.[713]O'Callaghan,Doc. Rel. to Col. Hist. of N. Y., III, 253.[714]Hening,Statutes, I, 158, 182, 183 (1632).[715]Ibid., 155.[716]Ibid., 242.Cf.the act of the Commonwealth, 1657-58,ibid., 433.[717]Ibid., II, 54.[718]Ibid., X, 362.[719]Ibid., III, 442.Cf.the act of 1748:ibid., VI, 82.[720]Act of 1657-58:ibid., I, 433.[721]Hening,op. cit., II, 54, 55;cf.28 (1660-61). Only the clerk of the county in which the woman, her parents, or guardians dwell may act:ibid., 281.[722]Ibid., III, 150 (1696).[723]Ibid., 442, 443.[724]Beverley,Hist. of Va., 211, 212; also 1Mass. Hist. Coll., V, 136; andHening,op. cit., III, 445; VI, 84, 85; II, 55.[725]Ibid., II, 28.[726]Ibid., IX, 66 (1775). The tax was raised to ten pounds in 1780:ibid., X, 245.[727]Ibid., 225.[728]Spotswood,Letters, I, 128 n. 90;Beverley,Hist. of Va., 211;Hening,op. cit., III, 45; VI, 84, 85, etc. Earlier the marriage fee was 2 shillings:ibid., I, 160, 184.[729]Acts of the Gen. Assembly, 203.[730]Hening,op. cit., IV, 245 (1730). Marriage with a deceased wife's sister is forbidden:ibid., XII, 689 (1788).[731]Ibid., I, 252, 253.[732]Ibid., 438. By this act either the man or the woman suffers a penalty of one year's extra service.[733]Ibid., II, 114. The penalty for a freeman was made 1,000 pounds of tobacco in 1705:ibid., III, 444.[734]Ibid., VI, 83, 84.[735]On this marriage seeWinsor,Nar. and Crit. Hist., III, 132;Holmes,Annals, I, 162;Campbell,Hist. of Va., 65.[736]William Strachey,For the Colony in Virginea Britannea, Lawes Diuine, Morall, and Martiall, 11: inForce,Tracts, III.[737]Hening,op. cit., I, 240, 310, etc. The following curious judgment was rendered by the governor and council sitting as a court in 1627: "Upon the presentment of the church-wardens of Stanley Hundred for suspicion of incontinency betweene Henry Kinge and the wife of John Jackson, they lyinge together in her husband's absence; it is thought fitt that the sayd Kinge shall remove his habitation from her, and not to use or frequent her company until her husband's return."—Ibid., 145, note. This may be compared with the following record of the same court in 1631: "Because Edw. Grymes lay with Alice West he gives security not to marry any woman till further order from the Governor and Council."—Ibid., 551.[738]Ibid., 433; III, 74, 139, 361;Acts of the Gen. Assembly, 287. The first representative assembly, which met at Jamestown in the summer of 1619, enacted, "Against excesse in apparell that every man be cessed in the church for all publique contributions, if he be unmarried according to his owne apparell, if he be married according to his owne and his wives, or either of their apparell."—Col. Rec. of Va.(ed.Bancroft), 20. The same assembly provided that "All Ministers in the Colony shall once a year, namely in the moneth of Marche, bring to the Secretary of Estate a true account of all Christenings, burials and marriages, upon paine, if they faill, to be censured for their negligence by the Governor and Counsell of Estate; likewise where there be no ministers, that the comanders of the place doe supply the same duty,"—Ibid., 26.[739]Quoted byCooke,Virginia, 149; alsoFiske,Old Virginia and Her Neighbors, I, 246, 247.[740]See, however,Goodwin,The Colonial Cavalier, 45 ff.; and on social customs in generalFiske,op. cit., II, 174, 269.[741]For this document seeThe Virginia Mag. of Hist. and Biog., IV (July, 1896), 64-66.[742]Streeter,Papers Rel. to the Early History of Md., 278, 279. This license may be compared with the bonds required by Governor Andros in New England or by the New York governors: see chaps, xii and xiv.[743]In the "book in the land office, entitled,LiberNo. 1":Bozman,Hist. of Maryland, II, 604, who gives the following example: "November 2d, 1638. This day came William Lewis, planter, and made oath, that he is not precontracted to any other woman than Ursula Gifford, and that there is no impediment of consanguinity, affinity, or any other lawful impediment to his knowledge, why he should not be married to the said Ursula Gifford; and further he acknowledgeth himself to owe unto the lord proprietor 1000 lb. tobacco in case there be any precontract or other lawful impediment whatsoever as aforesaid, either on the part of the said William Lewis or the said Ursula Gifford."[744]Among the thirty-six bills of the assembly of February, 1639/40, which according to Bozman were engrossed for a third reading, but not finally enacted into laws, was one giving the so-called "county court" jurisdiction in "all causes matrimonial, for as much as concerns the trial of covenants and contracts, and the punishment of faults committed against the same; and all offences of incest; attempting of another's chastity; defamation; temerarious administration; detention of legacies; clandestine marriage without banns thrice published or bond entered in the court."—Bozman,op. cit., II, 106, 128, 129. Since at this time there was but one organized county, St. Mary's, and this "county court" is made a tribunal of appeal in all civil common-law cases, the body is really the supreme provincial court, and it is given about the same jurisdiction thereafter exercised by the latter.[745]Archives of Md.: Proceedings and Acts of the General Assembly, 1637-64, 97.[746]Ibid., 374. The fine for each of the parties violating the statute is 1,000 pounds of tobacco; for the magistrate or minister, 5,000 pounds, one half to the Lord Proprietor, the other half to the informer. In 1650 it is provided that adultery shall receive punishment as the court may see fit, but "not extending to life or member":ibid., 286. The penalty is the same in 1654:ibid., 344. In the last-named year "the names of all that shall be borne, married or buried ... shall be Exhibited to the Clarke of Every Court who shall Inst Register thereof who shall be allowed five pounds of Tobacco as a ffee due to him for every such Registrmade and kept."—Ibid., 345.[747]Ibid., 442, 443. This act is approved in 1664:ibid., 537.[748]"The man taking the woman by the Rthand shall say I A B doe take thee C D to my wedded wife To have and to hould from this day forward for better for worse for Rich or for Poore in sickness & in health till death us do part and thereto I plight thee my troth which being finished lett her hand goe." Similar words are to be used by the woman:ibid., 1664-76, 148.[749]Ibid., 1666-76, 522, 523.[750]Lodge,Short History, 105. Elsewhere this writer says the Episcopal church in Maryland was as "contemptible an ecclesiastical organization as history can show." "It is not easy to conceive the utter degradation of the mass of the Maryland clergy. Secure in their houses and glebes, with a tax settled by law, and collected by the sheriffs for their benefit, they set decency and public opinion at defiance. They hunted, raced horses, drank, gambled, and were the parasites and boon companions of the wealthy planters. A common jest was the question:'Who is a monster of the first renown?'A lettered sot, a drunkard in a gown.'"They extorted marriage fees from the poor by breaking off in the middle of the service, and refusing to continue until they were paid."—Ibid., 123, 120-24;cf.Browne,Maryland, 184 ff.[751]See, however, the case of North Carolina below, where the original toleration of the early years was later somewhat curtailed; and that of West Virginia.[752]CompareCook, "Mar. Cel. in the Colonies,"Atlantic, LXI, 356, 357.[753]Archives of Md.: Procds. and Acts of the Gen. Assem., 1684-92, 450, 451.[754]Bacon,Laws of Maryland, 1702, chap. i, §§ iv, v.[755]Bacon,op. cit., 1717, chap. xv, §§ i-v. The fee for marriage after license is "10 shillings and no more;" after publication of banns it is 100 pounds of tobacco or 6 shillings and 8 pence current money.[756]Ibid., chap. xiii, § v.[757]Ibid., 1715, chap. xliv, § xxv.[758]Kilty,Laws, 1777, chap. 12, sec. 5; alsoLaws of Md., 1763-87 (Annapolis, 1787), chap. xii, sec. v;cf.Cook, "Mar. Cel. in the Colonies,"Atlantic, LXI, 357.[759]The Quakers were strong in Maryland and practiced the same rites as their brothers elsewhere. The Labadists, who had a colony in the province, thoroughly disliked the Friends, though in some respects the doctrines of the two bodies were strikingly alike. The Labadists were even more narrow than the Pennsylvania Friends regarding intermarriage with gentiles. A convert was expected to leave his unregenerate spouse behind when he joined the society; seeJames, "The Labadist Colony in Maryland,"J. H. U. S., XVII, 12 ff., 17 ff.[760]Archives of Md.: Judicial and Testamentary Business of the Provincial Court, 1649/50-57, 531-33.[761]"Fundamental Constitutions," c. 96:Poore,Charters, II, 1406. The charter of 1663 allows the proprietors to use their discretion in dispensing from the liturgy and ceremonies of the English church:ibid., 1389. The supplementary charter of 1665 declares that no one shall be "in any way molested, punished, disquieted or called in question, for any differences in opinion, or practice in matter of religious concernments, who do not actually disturb the civil peace." All are to enjoy "judgment and conscience in matter of religion."—Ibid., 1397.[762]After thus expressing the motive for toleration, the Constitutions curiously provide that any seven or more persons agreeing in any religion may form themselves into a "church or profession;" and no person over seventeen years of age "shall have any benefit or protection of the law, or be capable of any place of profit or honor, who is not a member" of such a church or profession, "having his name recorded in some one, and but one religious record at once."—Ibid., 1407.[763]N. C. Col. Records, IV, 264;Hawks,Hist. of N. C., II, 341. For Virginia seeLodge,Short History, 60 ff.Cf.Howard,Local Const. History, I, 133, 134.[764]Paragraphs 45 and 84 of the Fundamental Constitutions (1669) provide for matrimonial jurisdiction and for registration. Paragraph 87 declares that "no marriage shall be lawful, whatever contract and ceremony they have used, till both parties mutually own it before the register of the place where they were married, and he register it, with the names of the father and mother of each party."—Poore,Charters, II, 1402, 1406. CompareHewitt,An Hist. Account of the Rise and Progress of South Carolina and Georgia(London, 1779), 321-47.[765]N. C. Col. Rec., I, 184; also inHawks,Hist. of N. C., II, 152, 153; andCarroll,Hist. Coll. of S. C., II.[766]ThusDoyle,Eng. Colonies, I, 453, says the acts of the assembly of 1669/70, of which the marriage act is one, tended to make North Carolina "an Alsatia for ready and profligate adventurers." So alsoGeorge Chalmers,Political Annals of the United Provinces: inCarroll,Hist. Coll. of S. C., II, 291, concludes, "From this remarkable law we may judge of their state of religion and morals." On the other hand,Hawks,Hist. of N. C., II, 152, 153, says of this statute: "It has given rise to some abortive efforts at wit, which, if genuine, would, we think, be sadly misplaced; and has, besides, sorely troubled the over-sensitive and camel-swallowers who thank God they are 'not as other men are;'" justly adding: "It is difficult to conjecture any other course, which under the circumstances, they could reasonably have adopted. The very fact that any plan was devised to afford a legal and decent mode of entering into the marriage contract, certainly implies that the moral sense of the community revolted at general concubinage."Cf.alsoWeeks,Church and State in N. C.: inJ. H. U. S., XI, 244.[767]Hawks,op. cit., II, 154. These are nearly the words of the charter of 1665:Poore,op. cit., II, 1397.Cf.alsoWeeks,op. cit., 244, 245.[768]"Records of the Friends Monthly Meeting in Pasquotank Precinct": inN. C. Col. Rec., I, 688. There is a similar entry in 1711:ibid., 813. Two years earlier we find a "precinct" court—about the only part of the machinery of the "Fundamental Constitutions" which was ever made use of (Howard,Local Const. Hist., I, 129)—sentencing for adultery: "Ordered that Ellinor Mearle be punished by receiving Ten Stripes on her Back well laid & pay cost also Ex[=o]."—Records of Perquiman's Precinct Court, inN. C. Col. Rec., I, 626 (1705).[769]N. C. Col. Rec., II, 212, 213.[770]Ibid., 877, 878.[771]Iredell-Martin,Public Acts of the Assembly(Newbern, 1804), I, 18, 19.[772]N. C. Col. Rec., III, 110, 111.

[677]Palfrey,Hist. of New England, II, 30, note;cf.Moore,loc. cit., 135-37.

[678]Sumner, in his speech in the Senate, June 28, 1854:Works, III, 384.

[679]According toHurd,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 thelaw of nations, supported by the express or implied authority of the home Government." CompareWashburn, "The Extinction of Slavery in Mass.," 4Mass. Hist. Coll.(1857), IV, 333-46; the same inProcds. Mass. Hist. Soc.(1855-58), 188 ff.; andBelknap'sanswer toTucker'sQueries(1795), in 1Mass. 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 Oliverv.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 byNathan Danein hisAbridgment, II, 413, 426, 427, is equally unsupported by the facts. The same view as that of Gray is taken by Chief Justice Dana in Littletonv.Tuttle (1796): 4Mass. Reports, 128, note; by Chief Justice Shaw in Commonwealthv.Aves: 18Pickering's Reports, 208, 209; and it is repeated inCushing's Reports, 410. On the other hand, in Winchendonv.Hatfield: 4Mass. 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 Topsfieldv.Emerson (1799):Dane'sAbridgment, II, 412; and by Chief Justice Parker in Andoverv.Canton (1816): 13Mass. Reports, 551, 552. In 1865 the errors of Gray, Dane, Webster, and others were fully exposed byMoore,Notes on the History of Slavery in Mass., 10 ff., 22 ff., 94 ff., 98 ff.; yet it is curious to seeBishop,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 readMoore'sconvincing argument as to the significance of the altered wording:Notes on the Hist. of Slavery in Mass., 10-18. For Connecticut seeFowler, "The Historical Status of the Negro," inDawson'sHist. 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; andHurd,Law of Freedom and Bondage, I, 267 ff.

[683]In 1700 Sewall, then a judge of the superior court, wrote an anti-slavery tract entitledThe Selling of Joseph. It is reprinted in theProcds. Mass. Hist. Soc.(1863-64), 161-65; with theDiaryin 5Mass. Hist. Coll., VI, 16-20, note; and inMoore,Notes on Hist. of Slavery in Mass., 83-87. The next yearJohn Saffin, a judge of the same court, replied to Sewall inA Brief and Candid Answer(Boston, 1701); reprinted byMoore,op. cit., 251-56. CompareSewall'sletterTo the Revd. & aged Mr. John Higginson(Apr. 13, 1706), and his extract from theAthenian Oracle, II, 460-63, both reprinted byMoore,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 BostonNews-Letterof 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 1705Sewallwrites: "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 5Mass. Hist. Coll., VI, 143.

[688]Ibid., 22. TheMSS. 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) inMSS. 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.

[689]By the act of 1705 already cited:Acts and Resolves, I, 578.

[690]So in the Pequot War: 4Mass. Hist. Coll., III, 360; in King Philip's War; and by theArticles of Confederation(1643), inPlymouth Col. Rec., IX, 4. CompareMoore,Notes on Hist. of Slavery in Mass., 1-10, 30-40.

[691]For an interesting discussion of this point seeBliss'schapter on "Rum and Slavery,"Side-Glimpses from the Col. Meeting-House, 12 ff.; andWeeden,Ecc. and Soc. Hist., II, 449-72. Such men as Peter Faneuil and Thomas Amory, of Boston, were "deep" in the rum and slavery business:Bliss,op. cit., 15.

[692]For examples of advertisements of slave auctions in New England seeBliss,op. cit., 15-19.

[693]"A deacon of the church at Newport esteemed the slave trade with its rum accessories as home missionary work. It is said that on the first Sunday after the arrival of his slaves he was accustomed to offer thanks 'that an overruling Providence had been pleased to bring to this land of freedom another cargo of benighted heathen to enjoy the blessings of a Gospel dispensation.'"—Bliss,op. cit., 22. In general on the slave trade as missionary work seeFroude,History of England, VIII, 439.

[694]Bancroft,Hist. of U. S.(New York, 1888), II, 275, 276. On this subject seeBruce,Economic Hist. of Virginia, II, 94-98; the discussion byFiske,Old Virginia and Her Neighbors, I, 16; II, 192-94; andGoodwin,The Colonial Cavalier, 178, who says: "Baptism was permitted to the slave, but with the distinct understanding that it was to make no difference in the condition of bondage of these brothers in Christ." The Virginia law of 1667 will be found inHening,Statutes, II, 260.

[695]It was consecrated "sans égard à la religion de l'esclave":Carlier,Histoire du peuple américain, I, 364;cf.alsoHildreth,Hist. of U. S., I, 372.

[696]Bliss,op. cit., 92.

[697]Taken fromMoore,Notes on Hist. of Slavery in Mass., 92, note, who citesRecords as Reported by Rev. C. Chapin, D.D., Quoted in Jones's Religious Instruction of the Negroes, 34.Cf.Steiner, "Hist. of Slavery in Conn.,"J. H. U. S., XI, 386.

[698]Athenian Oracle, II, 460-63: inMoore,Notes on Hist. of Slavery in Mass., 93, 94.

[699]Moore,op. cit., 55.

[700]Sewall,The Selling of Joseph: in 5Mass. Hist. Coll., VI, 17, 18.

[701]Belknap'sanswer toTucker'sQueries: in 1Mass. Hist. Coll., IV, 200;cf.Moore,Notes on Hist. of Slavery in Mass., 57.

[702]Moore,Slave Marriages in Mass.:Dawson'sHist. Mag., 2d series, V, 136, reprintingHobart'sSerious Address to the Episcopal Separation in New England(1748), 77, 78; and quoting in replyDr. John Beach'sCalm and Dispassionate Vindication, 39, who in logic characteristic of the age argues in "substance that as a Slave was capable of being made free, and so of having property in a large estate, there was no profaneness" in the use of the phrase mentioned.

[703]"And finally," continues the minister, "I exhort & charge you to beware lest you give place to the Devil, so as to take Occasion from the Licence now given you, to be lifted up withPride, and thereby fall under the Displeasure, not of Man only, but of God also; for, it is written, that God resisteth the Proud, but he giveth Grace to the humble."I shall now conclude wthPrayerfor you, that you may become good Christians, and that you may be enabled to conduct as such; and in particr, that you may have Grace to behave suitably towards each Other, as also dutifully towards your Masters & Mistresses, not wthEye-Service, as Men-pleasers, but as yeservtsof Chrt, doing yewill of God from yeheart." Published byMoore,Slave Marriages in Mass.: inDawson'sHist. Mag., 2d series, V, 137.

"I shall now conclude wthPrayerfor you, that you may become good Christians, and that you may be enabled to conduct as such; and in particr, that you may have Grace to behave suitably towards each Other, as also dutifully towards your Masters & Mistresses, not wthEye-Service, as Men-pleasers, but as yeservtsof Chrt, doing yewill of God from yeheart." Published byMoore,Slave Marriages in Mass.: inDawson'sHist. Mag., 2d series, V, 137.

[704]Hening,Statutes, I, 156, 157. See also the act of 8 Chas. I., expressed in about the same terms,ibid., 181.

[705]Ibid., 158, 183.

[706]Ibid., 433. By the act of 1646 the penalty for celebration without license or banns was 1,000 pounds of tobacco:ibid., 332.

[707]Ibid., II, 49-51. By the law of 1788 the issue of even "incestuous" marriages are made legitimate:ibid., XII, 689.

[708]See chap. xiv, i,b), below.

[709]Hening,Statutes, III, 149-51.

[710]See the act of 1705,ibid., 443, 444; and that of 1748,ibid., VI, 83.

[711]Ibid., III, 441, 442.

[712]See chap, xvi, where this legislation is treated in detail.

[713]O'Callaghan,Doc. Rel. to Col. Hist. of N. Y., III, 253.

[714]Hening,Statutes, I, 158, 182, 183 (1632).

[715]Ibid., 155.

[716]Ibid., 242.Cf.the act of the Commonwealth, 1657-58,ibid., 433.

[717]Ibid., II, 54.

[718]Ibid., X, 362.

[719]Ibid., III, 442.Cf.the act of 1748:ibid., VI, 82.

[720]Act of 1657-58:ibid., I, 433.

[721]Hening,op. cit., II, 54, 55;cf.28 (1660-61). Only the clerk of the county in which the woman, her parents, or guardians dwell may act:ibid., 281.

[722]Ibid., III, 150 (1696).

[723]Ibid., 442, 443.

[724]Beverley,Hist. of Va., 211, 212; also 1Mass. Hist. Coll., V, 136; andHening,op. cit., III, 445; VI, 84, 85; II, 55.

[725]Ibid., II, 28.

[726]Ibid., IX, 66 (1775). The tax was raised to ten pounds in 1780:ibid., X, 245.

[727]Ibid., 225.

[728]Spotswood,Letters, I, 128 n. 90;Beverley,Hist. of Va., 211;Hening,op. cit., III, 45; VI, 84, 85, etc. Earlier the marriage fee was 2 shillings:ibid., I, 160, 184.

[729]Acts of the Gen. Assembly, 203.

[730]Hening,op. cit., IV, 245 (1730). Marriage with a deceased wife's sister is forbidden:ibid., XII, 689 (1788).

[731]Ibid., I, 252, 253.

[732]Ibid., 438. By this act either the man or the woman suffers a penalty of one year's extra service.

[733]Ibid., II, 114. The penalty for a freeman was made 1,000 pounds of tobacco in 1705:ibid., III, 444.

[734]Ibid., VI, 83, 84.

[735]On this marriage seeWinsor,Nar. and Crit. Hist., III, 132;Holmes,Annals, I, 162;Campbell,Hist. of Va., 65.

[736]William Strachey,For the Colony in Virginea Britannea, Lawes Diuine, Morall, and Martiall, 11: inForce,Tracts, III.

[737]Hening,op. cit., I, 240, 310, etc. The following curious judgment was rendered by the governor and council sitting as a court in 1627: "Upon the presentment of the church-wardens of Stanley Hundred for suspicion of incontinency betweene Henry Kinge and the wife of John Jackson, they lyinge together in her husband's absence; it is thought fitt that the sayd Kinge shall remove his habitation from her, and not to use or frequent her company until her husband's return."—Ibid., 145, note. This may be compared with the following record of the same court in 1631: "Because Edw. Grymes lay with Alice West he gives security not to marry any woman till further order from the Governor and Council."—Ibid., 551.

[738]Ibid., 433; III, 74, 139, 361;Acts of the Gen. Assembly, 287. The first representative assembly, which met at Jamestown in the summer of 1619, enacted, "Against excesse in apparell that every man be cessed in the church for all publique contributions, if he be unmarried according to his owne apparell, if he be married according to his owne and his wives, or either of their apparell."—Col. Rec. of Va.(ed.Bancroft), 20. The same assembly provided that "All Ministers in the Colony shall once a year, namely in the moneth of Marche, bring to the Secretary of Estate a true account of all Christenings, burials and marriages, upon paine, if they faill, to be censured for their negligence by the Governor and Counsell of Estate; likewise where there be no ministers, that the comanders of the place doe supply the same duty,"—Ibid., 26.

[739]Quoted byCooke,Virginia, 149; alsoFiske,Old Virginia and Her Neighbors, I, 246, 247.

[740]See, however,Goodwin,The Colonial Cavalier, 45 ff.; and on social customs in generalFiske,op. cit., II, 174, 269.

[741]For this document seeThe Virginia Mag. of Hist. and Biog., IV (July, 1896), 64-66.

[742]Streeter,Papers Rel. to the Early History of Md., 278, 279. This license may be compared with the bonds required by Governor Andros in New England or by the New York governors: see chaps, xii and xiv.

[743]In the "book in the land office, entitled,LiberNo. 1":Bozman,Hist. of Maryland, II, 604, who gives the following example: "November 2d, 1638. This day came William Lewis, planter, and made oath, that he is not precontracted to any other woman than Ursula Gifford, and that there is no impediment of consanguinity, affinity, or any other lawful impediment to his knowledge, why he should not be married to the said Ursula Gifford; and further he acknowledgeth himself to owe unto the lord proprietor 1000 lb. tobacco in case there be any precontract or other lawful impediment whatsoever as aforesaid, either on the part of the said William Lewis or the said Ursula Gifford."

[744]Among the thirty-six bills of the assembly of February, 1639/40, which according to Bozman were engrossed for a third reading, but not finally enacted into laws, was one giving the so-called "county court" jurisdiction in "all causes matrimonial, for as much as concerns the trial of covenants and contracts, and the punishment of faults committed against the same; and all offences of incest; attempting of another's chastity; defamation; temerarious administration; detention of legacies; clandestine marriage without banns thrice published or bond entered in the court."—Bozman,op. cit., II, 106, 128, 129. Since at this time there was but one organized county, St. Mary's, and this "county court" is made a tribunal of appeal in all civil common-law cases, the body is really the supreme provincial court, and it is given about the same jurisdiction thereafter exercised by the latter.

[745]Archives of Md.: Proceedings and Acts of the General Assembly, 1637-64, 97.

[746]Ibid., 374. The fine for each of the parties violating the statute is 1,000 pounds of tobacco; for the magistrate or minister, 5,000 pounds, one half to the Lord Proprietor, the other half to the informer. In 1650 it is provided that adultery shall receive punishment as the court may see fit, but "not extending to life or member":ibid., 286. The penalty is the same in 1654:ibid., 344. In the last-named year "the names of all that shall be borne, married or buried ... shall be Exhibited to the Clarke of Every Court who shall Inst Register thereof who shall be allowed five pounds of Tobacco as a ffee due to him for every such Registrmade and kept."—Ibid., 345.

[747]Ibid., 442, 443. This act is approved in 1664:ibid., 537.

[748]"The man taking the woman by the Rthand shall say I A B doe take thee C D to my wedded wife To have and to hould from this day forward for better for worse for Rich or for Poore in sickness & in health till death us do part and thereto I plight thee my troth which being finished lett her hand goe." Similar words are to be used by the woman:ibid., 1664-76, 148.

[749]Ibid., 1666-76, 522, 523.

[750]Lodge,Short History, 105. Elsewhere this writer says the Episcopal church in Maryland was as "contemptible an ecclesiastical organization as history can show." "It is not easy to conceive the utter degradation of the mass of the Maryland clergy. Secure in their houses and glebes, with a tax settled by law, and collected by the sheriffs for their benefit, they set decency and public opinion at defiance. They hunted, raced horses, drank, gambled, and were the parasites and boon companions of the wealthy planters. A common jest was the question:'Who is a monster of the first renown?'A lettered sot, a drunkard in a gown.'"They extorted marriage fees from the poor by breaking off in the middle of the service, and refusing to continue until they were paid."—Ibid., 123, 120-24;cf.Browne,Maryland, 184 ff.

'Who is a monster of the first renown?'A lettered sot, a drunkard in a gown.'

"They extorted marriage fees from the poor by breaking off in the middle of the service, and refusing to continue until they were paid."—Ibid., 123, 120-24;cf.Browne,Maryland, 184 ff.

[751]See, however, the case of North Carolina below, where the original toleration of the early years was later somewhat curtailed; and that of West Virginia.

[752]CompareCook, "Mar. Cel. in the Colonies,"Atlantic, LXI, 356, 357.

[753]Archives of Md.: Procds. and Acts of the Gen. Assem., 1684-92, 450, 451.

[754]Bacon,Laws of Maryland, 1702, chap. i, §§ iv, v.

[755]Bacon,op. cit., 1717, chap. xv, §§ i-v. The fee for marriage after license is "10 shillings and no more;" after publication of banns it is 100 pounds of tobacco or 6 shillings and 8 pence current money.

[756]Ibid., chap. xiii, § v.

[757]Ibid., 1715, chap. xliv, § xxv.

[758]Kilty,Laws, 1777, chap. 12, sec. 5; alsoLaws of Md., 1763-87 (Annapolis, 1787), chap. xii, sec. v;cf.Cook, "Mar. Cel. in the Colonies,"Atlantic, LXI, 357.

[759]The Quakers were strong in Maryland and practiced the same rites as their brothers elsewhere. The Labadists, who had a colony in the province, thoroughly disliked the Friends, though in some respects the doctrines of the two bodies were strikingly alike. The Labadists were even more narrow than the Pennsylvania Friends regarding intermarriage with gentiles. A convert was expected to leave his unregenerate spouse behind when he joined the society; seeJames, "The Labadist Colony in Maryland,"J. H. U. S., XVII, 12 ff., 17 ff.

[760]Archives of Md.: Judicial and Testamentary Business of the Provincial Court, 1649/50-57, 531-33.

[761]"Fundamental Constitutions," c. 96:Poore,Charters, II, 1406. The charter of 1663 allows the proprietors to use their discretion in dispensing from the liturgy and ceremonies of the English church:ibid., 1389. The supplementary charter of 1665 declares that no one shall be "in any way molested, punished, disquieted or called in question, for any differences in opinion, or practice in matter of religious concernments, who do not actually disturb the civil peace." All are to enjoy "judgment and conscience in matter of religion."—Ibid., 1397.

[762]After thus expressing the motive for toleration, the Constitutions curiously provide that any seven or more persons agreeing in any religion may form themselves into a "church or profession;" and no person over seventeen years of age "shall have any benefit or protection of the law, or be capable of any place of profit or honor, who is not a member" of such a church or profession, "having his name recorded in some one, and but one religious record at once."—Ibid., 1407.

[763]N. C. Col. Records, IV, 264;Hawks,Hist. of N. C., II, 341. For Virginia seeLodge,Short History, 60 ff.Cf.Howard,Local Const. History, I, 133, 134.

[764]Paragraphs 45 and 84 of the Fundamental Constitutions (1669) provide for matrimonial jurisdiction and for registration. Paragraph 87 declares that "no marriage shall be lawful, whatever contract and ceremony they have used, till both parties mutually own it before the register of the place where they were married, and he register it, with the names of the father and mother of each party."—Poore,Charters, II, 1402, 1406. CompareHewitt,An Hist. Account of the Rise and Progress of South Carolina and Georgia(London, 1779), 321-47.

[765]N. C. Col. Rec., I, 184; also inHawks,Hist. of N. C., II, 152, 153; andCarroll,Hist. Coll. of S. C., II.

[766]ThusDoyle,Eng. Colonies, I, 453, says the acts of the assembly of 1669/70, of which the marriage act is one, tended to make North Carolina "an Alsatia for ready and profligate adventurers." So alsoGeorge Chalmers,Political Annals of the United Provinces: inCarroll,Hist. Coll. of S. C., II, 291, concludes, "From this remarkable law we may judge of their state of religion and morals." On the other hand,Hawks,Hist. of N. C., II, 152, 153, says of this statute: "It has given rise to some abortive efforts at wit, which, if genuine, would, we think, be sadly misplaced; and has, besides, sorely troubled the over-sensitive and camel-swallowers who thank God they are 'not as other men are;'" justly adding: "It is difficult to conjecture any other course, which under the circumstances, they could reasonably have adopted. The very fact that any plan was devised to afford a legal and decent mode of entering into the marriage contract, certainly implies that the moral sense of the community revolted at general concubinage."Cf.alsoWeeks,Church and State in N. C.: inJ. H. U. S., XI, 244.

[767]Hawks,op. cit., II, 154. These are nearly the words of the charter of 1665:Poore,op. cit., II, 1397.Cf.alsoWeeks,op. cit., 244, 245.

[768]"Records of the Friends Monthly Meeting in Pasquotank Precinct": inN. C. Col. Rec., I, 688. There is a similar entry in 1711:ibid., 813. Two years earlier we find a "precinct" court—about the only part of the machinery of the "Fundamental Constitutions" which was ever made use of (Howard,Local Const. Hist., I, 129)—sentencing for adultery: "Ordered that Ellinor Mearle be punished by receiving Ten Stripes on her Back well laid & pay cost also Ex[=o]."—Records of Perquiman's Precinct Court, inN. C. Col. Rec., I, 626 (1705).

[769]N. C. Col. Rec., II, 212, 213.

[770]Ibid., 877, 878.

[771]Iredell-Martin,Public Acts of the Assembly(Newbern, 1804), I, 18, 19.

[772]N. C. Col. Rec., III, 110, 111.

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