Chapter XXVIII

LEGAL STATUS OF THE NEGRO DURING THE REVOLUTION.

1775-1783.

THE NEGRO WAS CHATTEL OR REAL PROPERTY.--HIS LEGAL STATUS
DURING HIS NEW RELATION AS A SOLDIER.--RESOLUTION INTRODUCED
IN THE MASSACHUSETTS 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 SHIP "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 MASSACHUSETTS.--THEY ARE DELIVERED
TO THOMAS KNOX, AND CONVEYED TO CASTLE ISLAND.--COL. PAUL
REVERE HAS CHARGE OF THE SLAVES ON CASTLE
ISLAND.--MASSACHUSETTS PASSES A LAW PROVIDING FOR THE
SECURITY, SUPPORT, AND EXCHANGE OF PRISONERS BROUGHT INTO
THE STATE.--GEN. HANCOCK 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. WASHINGTON'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 EMANCIPATION.

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 entitled to the usage of civilized warfare,--a freeman, and therefore to be treated as such?

The Continental Congress, Nov. 25, 1775, passed 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, Massachusetts, in 1776, passed 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 illustration 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 Massachusetts 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 CUSHING, 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 passed
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 passed.

"LXXXIII. Resolve forbidding the sale of two Negroes brought
in as Prisoners; Passed 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 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]

In June, 1779, a Spanish ship 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 assailant, 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 ship, 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 passage thither she was re-captured by the "Hazard" and "Tyrannicide," armed vessels in the service of Massachusetts, 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 ship called the[594] Lady Gage."[595] On the 24th of June, "the committee appointed to take into consideration the state and circumstances 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 passed without opposition.

"CLXXX. _Resolve on the Representation of the Board of War
respecting a number of negroes captured and brought into
this State_. Passed 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 Ship 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, Washing, 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,

"Agreeable to a Resolve of Court we send to Castle Island
and place under your care the following Negroes, viz.:

[19] Men,
[10] Women,
[5] Children,

lately brought into this Port in the Spanish retaken Ship
Victoria. The Men are to be employed on the Fortifications
there or elsewhere in the Harbor, in the most useful manner,
and the Women and Children, according to their ability, in
Cooking, Washing, etc. They are to be allowed for their
subsistence One lb. of Beef, and one lb. of Rice per day
each, which Commissary Salisbury will furnish upon your
order, and this to continue until our further orders.

"_By Order of the Board_."

In accordance with the order of the Legislature, made on the 24th of June, the president of the Board of War, Samuel P. Savage, wrote a letter to the Massachusetts delegates in Congress, dated "War Office June 29th 1779," calling attention to the re-captured Negroes. The letter closed with the following:--

"Every necessary for the speedy discharge of these people,
we have no doubt you will take, that as much expense as
possible may be saved to those who call themselves their
owners."

The writer was at pains to enumerate, in his letter, such slaves as he was enabled to locate.

"5 Men 4 Women 4 Boys 1 Girl belonging to Mr. Wm. Vryne.
"9 Men 1 Woman belonging to Mr. Anthony Pawley.
"1 Man belonging to Mr. Thomas Todd.
"2 Men 3 Women belonging to Mr. Henry Lewis.
"2 Men 2 Women belonging to Mr. William Pawley.

"One of the negroes is an elderly sensible man, calls
himself James, and says he is free, which we have no reason
to doubt the truth of. He also says that he with the rest of
the Negroes were taken from a place called Georgetown."[598]

Pending the action of the _lawful_ owners of these captives, the council instructed the commandant of Castle Island, Col. Paul Revere, to place out to service, in different towns, some of the Negroes, with the understanding that they should be delivered up to the authorities on their order. Some were delivered to gentlemen who desired them as servants. But in the fall of 1779 quite a number were still on the island, as may be seen by the following touching letter:--

"BOSTON, Oct'r. 12. 1779. A Return of y'e Negroes at Castle
Island, Viz.:

"NEGRO MEN.

"1. ANTHONY. 6. BOBB. 11. JUNE.
2. PARTRICK. 7. ANTHONEY. 12. RHODICK.
3. PADDE. 8. ADAM. 13. JACK.
4. ISAAC. 9. JACK. 14. FULLER.
5. QUASH. 10. GYE. 15. LEWIS.

"_The above men are stout fellows_.

"NEGRO BOYS.

"No. 1. SMART.
2. RICHARD.
"_Boys very small_.

"NEGRO WOOMEN. NEGRO GIRLS.
"No. 1. KITTEY. No. 1. LYSETT.
2. LUCY. 2. SALLY
3. MILLEY. 3. MERCY.
4. LANDER.
"_Pretty large_. _Rather stout_.

"_Gentlemen.

"The Scituation of these Negroes is pitiable with respect to
Cloathing.

"I am, Gen't.
"Your very hum. Serv't.
"John Hancock._"[599]

"OCT. 12, 1779."

In the mean time some of the reputed owners of the Negroes at Castle Island had come from Charleston, S.C., to secure their property. When they arrived in Boston they secured the services of John Codman, Isaac Smith, and William Smith, who on the 15th of November, 1779, petitioned the Council for the "restitution" of slaves taken by a British privateer, and retaken by two armed vessels of Massachusetts. A committee was appointed to consider the petitions, and report what action should be taken in the matter. Two days later another petition was presented to the Council by one John Winthrop, "praying that certain negroes, who were brought into this state by the Hazard and Tyrannicide, may be delivered to him." It was referred to the committee appointed on the 15th of November. On the 18th of November, "Jabez Fisher, Esq., brought down a report of the Committee of both Houses on the petition of Isaac Smith, being by way of resolve, directing the Board of War to deliver so many of the negroes therein mentioned, as are now alive. Passed in Council, and sent down for concurrence." The order of the House is, "Read and concurred, as taken into a new draught. Sent up for concurrence."

It is printed among the resolves of November, 1779.

"XXXI. Resolve relinquishing this state's claim to a number
of Negroes, passed November 18, 1779.

"Whereas a number of negroes were re-captured and brought
into this State by the armed vessels Hazard and Tyrannicide,
and have since been supported at the expense of this State,
and as the original owners of said Negroes now apply for
them:

"Therefore _Resolved_, That this Court hereby relinquish and
give up any claim they may have upon the said owners for
re-capturing said negroes: Provided they pay to the Board of
War of this State the expence that has arisen for the
support and clothing of the Negroes aforesaid."[600]

On the 12th of April, 1780, Massachusetts passed an Act providing more effectually "for the security, support, and exchange of prisoners of war brought into the State." It declares that

"All Prisoners of War, whether captured by the Army or Navy
of the United States, or armed Ships or Vessels of any of
the United States, or by the Subjects, Troops, Ships, or
Vessels of War of this State, and brought into the same, or
cast on shore by shipwreck on the coast thereof ... all such
prisoners, so brought in or cast on shore (including
Indians, Negroes, and Molatoes) be treated in all respects
as prisoners of war to the United States, any law or resolve
or this Court to the contrary notwithstanding."[601]

The above Act was passed in compliance with a resolution of Congress, Jan. 13, 1780; and it repealed an Act of 1777, that made no provisions for the capture of Negroes.

On the 23d of January, 1784, Gov. Hancock sent a message to the Legislature, transmitting correspondence received dining the adjournment of the Legislature from Oct 28, 1783, to Jan. 21, 1784. Calling the attention of the Legislature to this correspondence, he referred to a letter from "His Excellency the Governor of South Carolina, respecting the detention of some Negroes here, belonging to the subjects of that state. I have communicated it to the Judges of the Supreme Judicial Court--their observations upon it are with the Papers. I have made no reply to the letter, judging it best to have your decision upon it."[602] The same papers on the same day were read in the Senate, and a joint committee of both houses was appointed. The committee reported to both branches of the Legislature on the 23d of March, 1784, and the report was adopted. A request was made of the governor to furnish copies of the opinions of the judges, etc.

"CLXXI. Order requesting the Governor to write to Governor
_Guerard_ of _South Carolina_, inclosing the letter of the
Judges of the Supreme Judicial Court, March, 23d, 1784.

"_Ordered_, that his Excellency the Governor be requested to
write to His Excellency _Benjamin Guerard_, Governor of
_South Carolina_, inclosing for the information of Governor
Guerard, the letter of the Judges of the Supreme Judicial
Court of this Commonwealth, with the copy in the said letter
referred to, upon the subject of Governor _Guerard's_
letter, dated the sixth October, 1783."

The papers referred to seem to have been lost, but extracts are here produced:--

"GOVERNOR GUERARD TO GOVERNOR HANCOCK, 6th October, 1783.

EXTRACT. "That such adoption is favoring rather of the
Tyranny of Great Britain which occasioned her the loss of
these States--that no act of British Tyranny could exceed
the encouraging the negroes from the State owning them to
desert their owners to be emancipated--that it seems
arbitrary and domination--assuming for the Judicial
Department of any one State, to prevent a restoration voted
by the Legislature and ordained by Congress. That the
liberation of our negroes disclosed a specimen of Puritanism
I should not have expected from gentlemen of my Profession."

MEMORANDUM. "He had demanded fugitives, carried off by the
British, captured by the North, and not given up by the
interference of the Judiciary.' Governor Hancock referred
the subject to the Judges."

"JUDGES CUSHING AND SARGENT TO GOVERNOR HANCOCK, Boston,

Dec. 20, 1783.

EXTRACT. "How this determination is an attack upon the
spirit, freedom, dignity, independence, and sovereignty of
South Carolina, we are unable to conceive. That this has any
connection with, or relation to Puritanism, we believe is
above y'r Excellency's comprehension as it is above ours. We
should be sincerely sorry to do any thing inconsistent with
the Union of the States, which is and must continue to be
the basis of our Liberties and Independence; on the contrary
we wish it may be strengthened, confirmed, and endure for
ever."[603]

By the Treaty of Peace in 1783, Negroes were put in the same category with horses and other articles of property.[604]

"Negroes [says Mr. Hamilton], by the laws of the States, in
which slavery is allowed, are personal property. They,
therefore, on the principle of those laws, like horses,
cattle and other movables, were liable to become booty--and
belonged to the enemy, [captor] as soon as they came into
his hands. Belonging to him, he was free either to apply
them to his own use, or set them at liberty. If he did the
latter, the grant was irrevocable, restitution was
impossible. Nothing in the laws of nations or in those of
Great Britain, will authorize the resumption of liberty,
once granted to a human being."[605]

On the 6th of May, 1783, Gen. Washington wrote Sir Guy Carleton:--

"In the course of our conversation on this point, I was
surprised to hear you mention, that an embarkation had
already taken place, in which a large number of negroes had
been carried away. Whether this conduct is consonant to, or
how far it may be deemed an infraction of the treaty, is not
for me to decide. I cannot, however, conceal from you, that
my private opinion is, that the measure is totally different
from the letter and spirit of the treaty. But waiving the
discussion of the point, and leaving its decision to our
respective sovereigns; I find it my duty to signify my
readiness, in conjunction with your Excellency, to enter
into any agreement, or take any measures, which may be
deemed expedient, to prevent the future carrying away of any
negroes, or other property of the American
inhabitants."[606]

In his reply, dated New York, May 12, 1783, Sir Guy Carleton says,--

"I enclose a copy of an order, which I have given out to
prevent the carrying away any negroes or other property of
the American inhabitants."[607]

It is clear, that notwithstanding the Act of the Massachusetts Legislature, and in the face of the law of Congress on the question of recaptures, Gen. Washington, the Congress of the United Colonies, and subsequently of the United States, regarded Negroes as _property_ from the beginning to the end of the war. The following treaties furnish abundant proof that Negroes were regarded as property during the war, by the American government:--

"PROVISIONAL ARTICLES BETWEEN THE UNITED STATES OF AMERICA
AND HIS BRITANNIC MAJESTY.

"Agreed upon by and between Richard Oswald, Esquire the
Commissioner of His Britannic Majesty, for treating of Peace
with the Commissioners of the United States of America, in
behalf of his said Majesty, on one part, and John Adams,
Benjamin Franklin, John Jay and Henry Laurens, four of the
Commissioners of the said States, etc., etc., etc.

"Article VII. * * * All prisoners on both sides shall be set
at liberty, and His Britannic Majesty shall with all
convenient speed, and without causing any destruction, or
carrying away any '_negroes or other property_' of the
American inhabitants, withdraw all his armies, garrisons and
fleets from the said United States, and from every port,
place and harbour within the same.* * *

"Done at Paris, Nov 30, 1782.

"RICHARD OSWALD, [L.S.]
"JOHN ADAMS, [L.S.]
"B. FRANKLIN, [L.S.]
"JOHN JAY, [L.S.]
"HENRY LAURENS, [L.S.]"[608]

"DEFINITE TREATY OF PEACE, BETWEEN THE UNITED STATES OF
AMERICA AND HIS BRITANNIC MAJESTY.

"Article VII. * * * And His Britannic Majesty shall, with
all convenient speed, and without causing any destruction,
or carrying away any '_negroes or other property_' of the
American inhabitants, withdraw all his armies, etc., etc.,
etc.* * *

"Done at Paris, Sept. 3, 1783.

"D HARTLEY. [L.S.]
"JOHN ADAMS, [L.S.]
"B. FRANKLIN, [L.S.]
"JOHN JAY, [L.S.]"[609]

"TREATY OF PEACE AND AMITY, BETWEEN HIS BRITANNIC MAJESTY
AND THE UNITED STATES OF AMERICA,

"[Ratified and confirmed by and with the advice and consent
of the Senate, Feb. 11, 1815.]

"Article I. * * * Shall be restored without delay, and
without causing any destruction, or carrying away any of the
artillery or other public property originally captured in
the said forts or places, and which shall remain therein
upon the exchange of the ratifications of this treaty, or
any '_slaves or other private property_.' * * * *

"Done, in triplicate, at Ghent, Dec. 24, 1814.

"GAMBIER, [L.S.]
"HENRY GOULBURN, [L.S.]
"WILLIAM ADAMS, [L.S.]
"JOHN OUINCY ADAMS, [L.S.]
"J.A. BAYARD, [L.S.]
"H. CLAY, [L.S.]
"JONA. RUSSELL, [L.S.]
"ALBERT GALLATIN. [L.S.]"[610]

It was not a difficult matter to retake Negroes captured by the enemy, and then treat them as prisoners of war. But no officer in the American army, no member of Congress, had the moral courage to proclaim that property ceased in a man the moment he donned the uniform of a Revolutionary soldier, and that all Negro soldiers captured by the enemy should be treated as prisoners of war. So, all through the war with Britain, the Negro soldier was liable to be claimed as property; and every bayonet in the army was at the command of the master to secure his property, even though it had been temporarily converted into an heroic soldier who had defended the country against its foes. The unprecedented spectacle was to be witnessed, of a master hunting his slaves under the flag of the nation. And at the close of hostilities many Negro soldiers were called upon to go back into the service of their masters; while few secured their freedom as a reward for their valor. The following letter of Gen. Washington, addressed to Brig.-Gen. Rufus Putnam, afterwards printed at Marietta, O., from his papers, indicates the regard the Father of his Country had for the rights of the master, though those rights were pushed into the camp of the army where many brave Negroes were found; and it also illustrates the legal strength of such a claim:--

"HEAD QUARTERS, Feb. 2, 1783.

"SIR,--Mr. Hobby having claimed as his property a negro man
now serving in the Massachusetts Regiment, you will please
to order a court of inquiry, consisting of five as
respectable officers as can be found in your brigade, to
examine the validity of the claim, the manner in which the
person in question came into service, and the propriety of
his being discharged or retained in service. Having inquired
into the matter, with all the attending circumstances, they
will report to you their opinion thereon; which you will
report to me as soon as conveniently may be.

"I am, Sir, with great respect,
"Your most obedient servant,
"G. WASHINGTON.

"P.S.--All concerned should be notified to attend.

"Brig.-Gen. PUTNAM."

Enlistment in the army did not work a practical emancipation of the slave, as some have thought. Negroes were rated as chattel property by both armies and both governments during the entire war. This is the cold fact of history, and it is not pleasing to contemplate. The Negro occupied the anomalous position of an American slave and an American soldier. He was a soldier in the hour of danger, but a chattel in time of peace.

FOOTNOTES:

[588] Felt says, in History of Salem, vol. ii. p. 278: "Sept. 17 [1776]. At this date two slaves, taken on board of a prize, were to have been sold here; but the General Court forbid the sale, and ordered such prisoners to be treated like all others."

[589] Resolves, p. 14. Quoted by Dr. Moore from the original documents.

[590] Mr. Motley, "Rise of Dutch Republic," vol. i. p. 151, says that in the sixteenth century, in wars between European states, the captor had a property in his prisoner, which was assignable.

[591] Law of Fiefdom and Bondage, vol. i. p. 158.

[592] Mr. Hurd says, "In ascribing slavery to the law of nations it is a very common error to use that term not in the sense of universal jurisprudence--the Roman _jus gentium_-but in the modern sense of public international law, and to give the custom of enslaving prisoners of war, in illustration: as if the legal condition of other slaves who had never been taken in war were not equally _jure gentium_ according to the Roman jurisprudence" See Mr. Webster's speech, 7th March, 1830; Works, vol. v. p. 329.

[593] Dawson's Stony Point, pp. 111, 118.

[594] Dr. Moore thinks this the wrong name. The resolve proves it.

[595] House Journal, p. 60.

[596] Ibid, pp. 63, 64.

[597] Resolves, p. 51.

[598] Mass. Archives, vol. cli., pp. 202-294.

[599] The indefatigable Dr. George H. Moore copied the letter from the original manuscript. The portions in Italics are in the handwriting of Hancock. I have been placed under many obligations to my friend Dr. Moore.

[600] Resolves, p. 131.

[601] Laws, 1780, chap. v. pp. 283, 284.

[602] Journal, vol. iv. pp. 308, 309.

[603] From Mr. Bancroft's MSS., America, 1783, vol. ii. Quoted by Dr. Moore.

[604] Sparks's Washington, vol. viii. p. 428, note.

[605] Works of Hamilton, vol. vii. p. 191.

[606] Sparks's Washington, vol. viii. pp. 431,432.

[607] Sparks's Washington, vol. viii, Appendix, p. 544.

[608] U.S. Statutes at large, vol. viii, pp. 54, 57.

[609] Ibid., pp. 80, 83.

[610] U.S. Statutes at large, vol. viii. p. 218.