Slew vs. Whipple.
Marriage is of the Law of Nations. Justinian extends it, even to the Brutes.2
The Court adjudgd at Worcester that a Married Woman could not call herself Spinster.3
I shall not enter into the Right of some Men to enslave others.5
This Right in some Places seems established. Not indeed a Right to Life,6
tho this is assumed in West Indies to the shame of human Nature.
Evidence was that Jenny Slew was commonly reputed to be the Child of Betty Slew a white Woman by a Negro Man.
Shall Trespass be maintained? Shall not the Plaintiff who sues in Trespass for Goods be compell'd to prove his Possession and that it was by force taken out of his Possession. She has never been in Possession of her Liberty, she has been out of Possession of it for 50 years. Trespass is the highest Action of the highest Nature in Law. No other civil action in which the Party may be punished criminally.8
In the Case of the East Indian at Charlestown they pleaded in Bar that she was a slave, and produced the Bill of Sale. Why did not they do so here?9
J. Oliver. This is a Contest between Liberty and Property—both of great Consequence, but Liberty of most importance of the two.
It is not long since K[ing]
's attorney brought an Action of Trespass, in such a Case as this,10
and I think he was right, for if a Person is free he may bring Trespass at any Time.
Partus sequitur ventrem.11
Colour is a Presumption.12
Trespass has commonly been brought, I13
2. Jeremiah Gridley, of counsel for defendant.
“Natural Law is that which nature has taught to all animals, for this law is not peculiar to the human race, but applies to all creatures which originate in the air, or the earth, and in the sea. Hence arises the union of the male and the female which we designate marriage; and hence are derived the procreation and the education of children; for we see that other animals also act as though endowed with knowledge of this law.”
Note the citation of civil law authority and the appeal to natural law. Gridley's argument was that if brutes could marry, slaves could. He may have been trying to avoid the thrust of an act of 1706 for “Better Preventing of a Spurious and Mixt Issue,” 1 A&R
“And be it . . . enacted . . . that none of her majesty's English or Scottish subjects, nor of any other Christian nation within the province, shall contract matrimony with any negro or molatto. . . . And no master shall unreasonably deny marriage to his negro with one of the same nation, any law, usage or custom to the contrary notwithstanding.”
To defeat Gridley's plea in abatement, plaintiff had to convince the court that she had never been validly married. The brief JA minutes suggest several alternative contentions. It is possible that in moving to abate, Gridley was assuming, arguendo,
that the plaintiff was free and white; his natural-law citation was thus an answer to the argument that plaintiff's marriages with Negroes were statutorily void. It is also possible that plaintiff had argued that she was a mulatto and that the statute voided any marriage between her and a Negro. And it is possible, despite evidence of her marriage to slaves, that she was at some time married to a white man; if so, she would be justifying use of “spinster” by insisting that the statute voided that marriage also. Because of the sketchy nature of the notes, we cannot tell exactly. We cannot even be sure that Gridley was invoking natural law to control a statute; it may be that he was merely trying to regularize relationships in which (despite JA's use of the word) there had been no “marriages” at all.
3. It is unclear whether Gridley refers to the Inferior or Superior Court. The case cited has not been identified.
4. The note refers apparently not to the Worcester case, but to this one.
5. Benjamin Kent, counsel for plaintiff. His point, echoed by Judge Cushing (text at note
below), was that, because Jenny's mother was a white woman, Jenny could not be a slave, no matter what her father's status.
6. That is, the right to enslave does not give the master the right of life and death over his slaves.
9. The Charlestown case has not been identified.
10. The King's attorney would have been Trowbridge, who was Attorney General of the Province, 1749–1767. Whitmore, Mass. Civil List
124. The case has not been identified.
11. The child follows the mother, i.e.,
the child takes the mother's status. See note
12. In view of Cushing's apparent position favoring the action, he seems here to be saying that the plaintiff's color raised only a presumption as to her status, which presumption was rebutted by evidence of ancestry.
breaks off at foot of page; remainder missing.