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Browsing: Legal Papers of John Adams, Volume 2

Docno: ADMS-05-02-02-0004-0002-0002

Author: Adams, John
Date: 1766-11

Adams' Minutes of the Argument1

Essex Superior Court, Salem, November 1766

Slew vs. Whipple.
Gridley. Marriage is of the Law of Nations. Justinian extends it, even to the Brutes.2
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The Court adjudgd at Worcester that a Married Woman could not call herself Spinster.3
Writ not abated.4
Kent. 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.
Mr. Goffe. 7
Gridley. 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
Kent. 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.
J. Cushing. 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.
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Partus sequitur ventrem.11 Colour is a Presumption.12
Lynde. Trespass has commonly been brought, I13
1. In JA 's hand; a fragment only. Adams Papers, Microfilms, Reel No. 185.
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.” Justinian, Institutes 1.2 (transl. in 2 Scott, Civil Law 5).
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 578:
“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 11 13 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.
7. That is, Edmund Trowbridge, who in early life used the name of his guardian and great-uncle, Edmund Goffe. 8 Sibley-Shipton, Harvard Graduates 508.
8. Trespass was a misdemeanor at common law; the tort is considered to have criminal roots, and Gridley may have been thinking of the early common law, where criminal sanctions sometimes resulted from a civil action for trespass. See Plucknett, Concise History 456–458; 5 Bacon, Abridgment 150; 3 Holdsworth, History of English Law 331–333. Compare Fifoot, History and Sources 44–56. But there is a question whether trespass was the only civil action in which the party might be punished criminally. Id. at 45–46.
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 5 7 above.
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.
13. MS breaks off at foot of page; remainder missing.

Docno: ADMS-05-02-02-0004-0003-0001

Author: Adams, John
Date: 1768-09

Adams' Minutes of the Trial1

Hampshire Superior Court, Springfield, September 1768

Newport vs. Billing.
Strong. 2 Trespass and false Imprisonment. Plea that Plaintiff is Defendants Property—his Negro Slave.
Rep.3 no slave but a freeman.
Bill [of] Sale 1728. 15th March from David Ingersole.
Coll. Partridge. Ingersoles Hand. Lowghtons Hand. Knew Newport to live with Billing and reputed his servant.
Mr. Dickerson. Knew him 30 Years to be the servant of Billing.
Acts of Parliament that take Notice of slaves in Plantations.4
Law of Province.5
Every Man a Right to freedom that no Law or Usage can take away.
Forfeiture of Liberty. Wars, among them. Captives.
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A Right to destroy them, if necessary to secure themselves.
Right to enslave them to repay the Expences of defending ones self.
Sense of the Nation to be relyed on.
Presumption here is that an African black is a Slave.
Tax Acts.6
Putnam. 7 Point in issue, Slave or not?
Defendant must now prove that Plaintiff is a slave. A Negro, black &c., the only Proof. Montesquieu, flat Nose, &c.8 Noah's Curse.9 Dr. Newton.10
History, Greece and Rome. Slavery. Power of Life and death.
Not proved that he has forfeited his Liberty, by the Laws of his Country.11
Common Report, that they are stolen in Affrica. The Same Right for them to enslave us.
Common Law directly vs. this Principle. Villenage.12
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3 Raymond 1274. Salk. Mod. Levitic Law Exod. The master might kill his slave.13
May have a Right to service, during Life. But not to Life.
Province Laws might mean slaves of West indians.14
Sewall. 15 Painfull. Humanity, common Justice, and eternal Morality.
Conquest and Rights of War.
Plea says D. Ingersole had a Right to sell him. Rec[eip]t. Similitude of Hands.16
Protection. Break his Head. Indictment will lye.
Moral. Necessity to set it aside, it may be dem[onstrated?] that it is a Disadvantage to us.
Voltaire, no sugar.17
Wounded Consciences.
Vid. Arguments at large in 1st. Mod.18
1. In JA 's hand. Adams Papers, Microfilms, Reel No. 185.
2. Simeon Strong, counsel for defendant.
3. “Replication”—the plaintiff's response to the plea.
4. For example, 23 Geo. 2, c. 31 (1750): “An Act for extending and improving the trade to Africa.—Whereas the trade to and from Africa is very advantageous to Great Britain, and necessary for the supplying the plantations and colonies thereunto belonging with a sufficient number of negroes, at reasonable rates.”
5. For example, “An Act Relating to Mulato and Negro Slaves,” 28 July 1703, c. 1, 1 A&R 519 (no manumission without security); “An Act to Prevent Disorders in the Night,” 1 Dec. 1703, c. 11, 1 A&R 535–536 (9 p.m. curfew for Indian, Negro, and mulatto servants or slaves); “An Act for the Better Preventing of a Spurious and Mixt Issue,” 5 Dec. 1706, c. 10, 1 A&R 578–579 (outlaws miscegenation and imposes a £4 per head duty on all imported Negroes).
6. For example, “An Act for Apportioning and Assessing a Tax of £40,000. . . . [§3] . . . to estimate Negro, Indian, and molatto servants proportionably as other personal estate.” 23 June 1767, 4 A&R 959, 973.
7. James Putnam, counsel for plaintiff.
8. Montesquieu, De l'Esprit des Loix, Liv. XV, c. V: “Ceux dont il s'agit sont noirs depuis les pieds jusqu'à la tête; et ils ont le nez si écrasé qu'il est presque impossible de les plaindre.”
9. Genesis 9:18–26:
“And the sons of Noah, that went forth of the ark, were Shem, and Ham, and Japheth: and Ham is the father of Canaan. These are the three sons of Noah: and of them was the whole earth overspread. And Noah began to be an husbandman, and he planted a vineyard: And he drank of the wine, and was drunken; and he was uncovered within his tent. And Ham, the father of Canaan, saw the nakedness of his father, and told his two brethren without. And Shem and Japheth took a garment, and laid it upon both their shoulders, and went backward, and covered the nakedness of their father; and their faces were backward, and they saw not their father's nakedness. And Noah awoke from his wine, and knew what his younger son had done unto him. And he said, Cursed be Canaan; a servant of servants shall he be unto his brethren. And he said, Blessed be the Lord God of Shem; and Canaan shall be his servant. God shall enlarge Japheth, and he shall dwell in the tents of Shem; and Canaan shall be his servant.”
10. John Newton (1725–1807), English clergyman who had served when young in the ship of his father (governor of York Fort, Hudson Bay), the Royal Navy, and the slave trade. He later studied Greek and Hebrew and was ordained an Anglican priest in 1764. His Authentic Narrative (1764) described his early life. DNB .
11. A possible reference to Smith v. Browne & Cooper, 2 Salk. 666, 91 Eng. Rep. 566, Holt K.B. 495, 90 Eng. Rep. 1172 (ca. 1707) note 13 below, in which Lord Holt held that
“as soon as a Negro comes into England, he becomes free; One may be a Villein in England, but not a Slave. . . . You should have averred in the Declaration that the Sale was in Virginia and by the laws of that Country Negroes are saleable; for the Laws of England do not extend to Virginia, being a conquered Country, their Law is what the King pleases; and we cannot take notice of it but as set forth.”
12. “A base tenure, where a man holds [land] upon terms of doing whatsoever is commanded of him, nor knows in the evening what is to be done in the morning, and is always bound to an uncertain service. 1 Steph. Comm. (7th ed.) 188.” Black, Law Dictionary .
13. The cases cited by Putnam are probably Smith v. Gould, 2 [not 3]Ld. Raym. 1274, 92 Eng. Rep. 338, 2 Salk. 666, 91 Eng. Rep. 567 (K.B. 1705); Smith v. Browne & Cooper, note 11 above; and Chamberline v. Harvey, 5 Mod. 182, 87 Eng. Rep. 598 (K.B. 1696). In the Gould case it was held that trover for a Negro will not lie, “no more than for any other man; for the common law takes no notice of Negroes being different from other men.” Putnam's reference to Scripture is probably a quotation from Salkeld's argument for the plaintiff in Gould “that a negro was a chattel by the law of the plantations, and therefore trover would lie for him; that by the Levitical law the master had power to kill his slave, and in Exodus xx, ver. 21 it is said, he is but the master's money.” Chamberline v. Harvey was cited in the margin of both reports of Smith v. Gould. In a long opinion the court held “that no action of trespass would lie for the taking away a man generally, but there might be a special Action of Trespass for taking his Servant, per quod Servitium amisit.” 5 Mod. at 191. See Pleadings Book, Form XI.
14. The argument seems to be that the word “slaves” in the various Province laws (notes 5, 6, above) ought to be taken to mean slaves on the Caribbean Islands only.
15. Jonathan Sewall, of counsel for Newport.
16. That is, the handwriting on the bill of sale was similar to that on another (unspecified) document.
17. For Voltaire on slavery see “L'A, B, C, ou Dialogues entre A, B, C,” 8ème Entretien, “Des Serfs de Corps”:
“C. . . . Montesquieu m'a fort réjoui dans son chapitre des nègres. Il est bien comique; il triomphe en s'égayant sur notre injustice. A. Nous n'avons pas, à le vérité, le droit naturel d'aller garrotter un citoyen d'Angola pour le mener travailler à coups de nerf de boeuf à nos sucreries de la Barbade, comme nous avons le droit naturel de mener à la chasse le chien que nous avons nourri: mais nous avons le droit de convention.” Voltaire, Oeuvres, 45:67–68 (Paris, Beuchot ed., 1831).
The reference to sugar may be an echo of Montesquieu. “Le sucre seroit trop cher, si l'on ne faisoit travailler la plante qui le produit par des esclaves.” Montesquieu, De l'Esprit des Loix, Liv. XV, c. 5.
18. This may be an inadvertence for “5th Mod.” (note 13 above), where arguments are fully set forth; nothing appears on the subject in 1 Mod.