“I was concerned in several Causes in which Negroes sued for their Freedom before the Revolution,” Adams wrote in 1795. “The Arguments in Favour of their Liberty were much the same as have been urged since in Pamphlets and Newspapers, in Debates in Parliament &c. arising from the Rights of Mankind. . . . I never knew a Jury by a Verdict, to determine a Negro to be a Slave. They always found them free.”1
The documentation of Adams' “slave cases” bears out his recollection, but not entirely. His minutes suggest that counsel for the slaves argued as much from precedent as from Enlightenment; and the court records show that in at least one case, Newport v. Billing,
, the jury found the plaintiff to be a slave. It is curious that Adams should have forgotten that cause, because he was there, as in at least three other cases, of counsel for the putative master.
All the cases date from 1766 or later.2
In that year, Adams witnessed the trial of Slew v. Whipple
, No. 38
, the first he had actually seen, although
he had “heard there have been many.”3
Did the accelerated tensions of the Revolutionary movement encourage such suits? Would abolitionist pressure have developed anyway? These questions must be answered elsewhere.4
The cases do provide some basis for generalization. That such problems were taken to court for disposition in civil suits emphasizes the settled state of Massachusetts society at the time. A suit for trespass to the person is an exceptionally sophisticated way of testing an issue which could have been determined either by force or by flight.
It is significant that each plaintiff sought to justify his or her freedom as much on evidentiary grounds as on grounds of policy or the rights of man. As Putnam put it in Newport v. Billing,
“Point in issue, Slave or not?” That point arose differently in different cases, depending on the twists the pleadings took and on the facts of each Negro's condition. With the exception of Margaret v. Muzzy,
, the declarations sounded in trespass and the relief sought was damages for false imprisonment. “Freedom” was thus determined only as an incident of the right to maintain the action, much as title was tried in trespass to chattels. The form of action set the procedural frame of the case, but the facts determined counsel's pleading strategy.
In Slew v. Whipple,
the initial skirmish centered on an attempt to abate the writ because the plaintiff had styled herself therein as a spinster. Adams' notes are cryptic, but it appears that counsel for the master argued that plaintiff's previous marriages, apparently to Negroes, had been valid, that “Jenny Slew, spinster,” did not exist, and that her writ must accordingly fail. A divided court rejected that effort. The trial on the merits went forward. Here the plaintiff's case was that, although her father had been a Negro, her mother had been white; the plaintiff, therefore, ought to be a free woman. The defense was only that the plaintiff had never proved her possession of her liberty; the defendant did not or could not introduce affirmative evidence of plaintiff's slave status. The jury thereupon awarded £4 damages and costs to Jenny.5
In Newport v. Billing,
apparently the first slave case in which Adams actually participated, the defendant's position was stronger. To the declaration in trespass he responded that he had purchased the plaintiff and that the plaintiff was “his own proper Negro slave.” The plaintiff replied that he was “a freeman,” and the burden shifted to the defendant, who put in
evidence a bill of sale. He also argued that a Negro should be presumed to be a slave. The plain tiff urged the insufficiency of the documentary and the racial proof. Nonetheless, the jury found that Newport “was not a freeman as he alledged but the proper slave of” the defendant, and so denied him damages.6
Margaret v. Muzzy
offered a procedural variation. Because Adams did not enter the case until late, on behalf of defendants, and because his papers contain no notes or minutes, we cannot tell why plaintiff chose to replevy herself out of defendant's possession on a writ de homine replegiando,
or personal replevin. Once the action commenced, it proceeded as though the form were trespass; defendant pleaded not guilty and the matter went to the jury, which found for plaintiff.7
The result was the same on the appeal and upon a writ of review.8
The judgment in this case actually resulted in Margaret's freedom, since the plaintiff sought “possession” of her own person rather than damages.
There are no Adams minutes of Watson v. Caesar (May 1771) (not included here), another trespass action, but the Suffolk Files contain enough depositions and documents to disclose the story. Caesar had been a slave of Elkanah Watson of Plymouth and somehow came into the possession of the Chevalier de Drucour, a Captain in the French Navy. At Louisbourg on 1 July 1758 the Chevalier gave him his freedom and a certificate to prove it. Caesar returned to Plymouth on the sloop Sally, some of whose people were later to give conflicting depositions about his representations of this status, and then re-entered Watson's service.
Twelve and a half years afterward, Caesar demanded his freedom. “I am very willing he should have it,” Watson wrote to Benjamin Kent, Caesar's attorney, “and should have been as willing 10 years ago or when he first came home had he ever asked me for it, or if I had ever known he had a paper.” Whether Watson changed his mind, or whether they could not agree on the amount that Caesar was to be allowed for his services, Caesar commenced his action against Watson in the Plymouth Inferior Court. In April 1771, on a plea of not guilty, the jury found for Caesar. At Plymouth Superior Court in May, where Adams appeared for Watson, the jury affirmed the lower court's verdict, awarding Caesar nominal damages of 6d.9
Adams' last known slave case, Caesar v. Taylor,
involved another Caesar. It appears from the documents that Taylor, Adams' client, had sold Caesar to a third party, despite an agreement that he was to be permitted to buy his freedom from Taylor. After the jury at the Newburyport Inferior Court in September 1771 had found for Caesar (Document I
), Taylor appealed. Adams, participating in the litigation for the first time, sought at the November 1771 Salem Superior Court to introduce in evidence a bill of sale from one Edward Hircom to Taylor (Document II
). Plaintiff's counsel (John Lowell and Nathaniel Sargeant) objected, on the ground that defendant's plea of the general issue (“non culpabilis,” or “not guilty”) precluded his introducing special evidence. This was the common law rule, but the court took the matter under advisement.11
Other minutes of the argument (Documents III
) indicate that plaintiff also raised evidentiary points at this time. First, he put in evidence of Taylor's agreement to sell Caesar his freedom. Second, he prevailed on his offer of evidence that Taylor's vendees had beaten Caesar, the court agreeing that the beating was what today we would call the proximate result of the initial tort, the illegal sale. Finally, plaintiff tried to convince the judges that the woman known as his wife was competent to testify; the common law rule went the other way, however, and so did the court, despite plaintiff's argument that Negroes could not legally marry and that therefore the woman was not really his wife.
At the Ipswich Superior Court in June 1772 (Document V
), the court decided that a plea of the general issue barred special evidence, the new judges, Ropes and Cushing, who had been appointed since the argument, giving no opinion. Adams moved for leave to replead, which motion the court denied and brought the case on for trial. Here once again plaintiff tried unsuccessfully to have his wife testify, and Adams sought (apparently with equal lack of success) to mitigate damages by putting in evidence of Caesar's reputation as a slave. The case then went to the jury, which found in Caesar's favor in the amount of £5 13s. 4d. damages and £24 7s. 2d. costs.12
The final case in this collection, Caesar v. Greenleaf,
, does not appear to be an Adams case, although the document here printed appears in the Wetmore Notes
in the Adams Papers
, and dates from the October 1773 Inferior Court at Newburyport. The declaration alleged trespass to which defendant pleaded not guilty, the general issue. However, to avoid the procedural cul-de-sac (or “non cul”-de-sac) which had bound Adams in Caesar v. Taylor,
defendant's counsel here (Daniel Farnham) induced the other side (John Lowell) to stipulate that evidence of special matter would be admissible. Notwithstanding, the report does not indicate what
if any other evidence was introduced. It seems that the jury found for the plaintiff £18 damages and costs, and that there was no appeal.13
These cases represent only some of the “suits for liberty” which were being brought by Negroes in the years just preceding the Revolution.14
They suggest substantial acceptance of the institution of slavery by all except perhaps its victims. It was not until the Massachusetts Constitution of 1780 and Judge William Cushing's construction of its “free and equal” clause as a prohibition of slavery in Quock Walker's Case
(1783) that there was even a firm legal basis for manumission when on the facts the plaintiff was clearly a slave. The subsequent history of slavery indicates that it was many years after this before any substantial portion of the people of Massachusetts were ready to mount either legal or moral attacks on the institution.15
Adams seems to have seen in recollection rather more in his early slavery cases than the records disclose.