ve my los, until he have served out the time covenanted; unde penalty of such fine as the quarter courts shall inflict, &c. Charters, &c., p. 42. Title-Acts respecting freemen and ser

હે

1641. This is the date of the celebrated "Massachusetts Fundamentals" or " Body of Liberties," the preamble of which

is as follows:

"Forasmuch as the free fruition of such liberties, immunities and privileges as humanity, civility, and christianity call for as due to every man, in his place and proportion, without impeachment and infringement, hath been and ever will be the tranquillity and stability of churches and commonwealths, and the denial or deprival thereof, the disturbance, if not the ruin of both, we hold it therefore our duty and safety, whilst we are about the further establishing of this government, to collect and express all such freedoms as for the present we foresee may concern us and our posterity after us, and to ratify them with our solemn consent. We do therefore this day religiously and unanimously decree and confirm these following rights, liberties and privileges concerning our churches and civil state to be respectively, impartially and inviolably enjoyed and observed throughout our jurisdiction forever." (Cambr. ed. laws, 1675, p. 1.)

The ninety-eight articles of this code are classed under distinct headings or titles, commencing with a general statement of the rights of the inhabitants in seventeen articles; the first of which is as follows: "No man's life shall be taken away, no man's honor or good name shall be stained, no man's

By the Mass. Records, vol. I., pp. 246, 269, it appears the General Court sentenced certain offenders, in 1638, 1639 "to be delivered up a slave " to persons appointed by the court.

It is believed that there is no mention made of negro slaves previous to the act of 1696 or 1698 hereinafter cited. But it appears from " Josselyn's Voyage," see Mass. Hist. Col., 3d series, vol. III., p. 231, that there were, in 1639, some negroes in the colony held in slavery; and see Dr. Belknap's letter to Dr. Tucker, in Mass. Hist. Col. 1st series, vol. IV., p. 194.

For the history of this act and an abstract of its provisions, see 1 Hildr. p. 274. 1 Savage's Winthrop, p. 160. Mass. Hist. Col. 3d series, vol. VIII., p. 191; a paper by F. C. Gray, L.L. D., containing the history of the previous publications, and a more authentic copy. Commonw. v. Alger, 7 Cushing, 67.

person shall be arrested, restrained, banished, dismembered, nor any ways punished, no man shall be deprived of his wife or children, no man's goods or estate shall be taken away from him, nor any way indamaged under color of law or countenance of authority, unless it be by virtue or equity of some express law of the country warranting the same, established by a General Court and sufficiently published; or, in case of the defect of a law in any particular case, by the word of God, and in capital cases or in cases concerning dismembering or banishment, according to that word, to be judged by the General Court.”

Article 2. "Every person within this jurisdiction, whether inhabitant or foreigner, shall enjoy the same justice and law that is general for the plantation, which we constitute and execute towards one another without partiality or delay."

Article 17. "Every man of or within this jurisdiction, shall have free liberty, notwithstanding any civil power, to remove both himself and his family at their pleasure out of the same, provided there be no legal impediments to the contrary."

The next forty-one articles are called ' rights, rules, and liberties concerning judicial proceedings.' There is no mention made among these of involuntary servitude as a punishment. Though 'barbarous and unusual punishments' are prohibited, it seems not to have been taken as applying to whipping, the pillory, cropping and other similar inflictions.'

Twenty articles contain 'liberties more particularly concerning the freemen,' which relate to the civil polity of the colony. In one of these articles it is enacted that no prescription or custom may prevail to establish any thing morally sinful by the word of God.' (Laws, Cam. 1675, p. 126.) 'Liberties of women' is the subject of two articles; liberties of children'

1 1 In 1681, a negro who had been convicted of arson, was publicly burned alive in Boston; this was the old common law punishment. 4 Blacks. Comm., 222. In 1755 a man and a woman, negro servants of Captain John Codman, of Charlestown, were executed under sentence of the Assizes, for poisoning their master; the woman was burned. Oliver's Pur. Commonwealth, p. 84. 2 Elliot's Hist. New E., 187. The crime was petit treason by common law, and to be drawn and burnt, instead of being drawn and hanged, was "the usual punishment for all sorts of treasons committed by those of the female sex," until 30 Geo. III., c. 48. 4 Bl. Comm., 204. It would seem from these instances that, after all, the courts were obliged to resort to common law" to find out what punishments were not “barbarous and unusual.”

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of four articles. It is enacted in four articles, entitled, 'liberties of servants.'

Article 85. "If any servants shall flee from the tyranny and cruelty of their masters to the house of any freeman of the same town, they shall be there protected and sustained, until due order be taken for their relief; provided due notice thereof be speedily given to their masters from whom they fled, and the next assistant or constable where the party plying is harbored.”

Article 86. "No servant shall be put off, for above a year, to any other, neither in the lifetime of their master, nor after their death by their executors or administrators, unless it be by consent of authority assembled in some court or two assistants."

Article 87. "If any man smite out the eye or tooth of his man servant or maid servant, or otherwise maim or much disfigure him, unless it be by mere casualty, he shall let them go free from his service, and shall have such further recompense as the court shall allow him."

Article 88. "Servants that have served diligently and faithfully to the benefit of their masters seven years, shall not be sent away empty; and if any have been unfaithful, negligent, or unprofitable in their service, notwithstanding the good usage of their masters, they shall not be dismissed till they have made satisfaction according to the judgment of the authorities."

Three articles refer to 'liberties of foreigners and strangers.' Article 89. "If any people of other nations professing the true christian religion, shall flee to us from the tyranny or oppression of their persecutors, or from famine, wars or the like necessary or compulsory cause, they shall be entertained and succored among us, according to that power and prudence God shall give us."

Article 91. "There shall never be any bond slavery, villenage, or captivity amongst us, unless it be lawful captives taken in war, and such strangers as willingly sell themselves or are sold to us. And these shall have all the liberties and christian usages which the law of God, established in Israel concerning such persons, doth morally require. This exempts none from

servitude who shall be judged thereto by authority." (Laws. Cam., 1675, p. 10, tit Bond Slavery.)

Two articles, of the brute creature,' respecting cruelty to animals and certain rights of pasturage. Among the 'capital laws' in the remaining articles is one, Art. 94, s. 10: 'If any man stealeth a man, or mankind, he shall surely be put to death,' with marginal reference to Exodus, 21, 16. (Laws Camb. 1675, p. 15.)'

1652.2 “And it is further ordered by this Courte and the authoritje thereof, that all Scotchmen, negroes, and Indjans, inhabiting with, or servants to the English shall be listed and

** attend traynings as well as the English," &c.

1656. Ordered by the Court, &c., "that henceforth no negroes or Indjans, although servants to the English, shall be armed or permitted to trajne."-Militia Regulations in Mass. Records IV. 1st Part, pp. 86, 397.

1659. The general court empowered the treasurers of the several counties to sell certain Quakers, who refused to pay fines to any of the English nation at Virginia and Barbadoes."-2 Hazard's Coll. p. 563.3

1660. May." This court, &c., do declare and order that no man whatsoever shall be admitted to the freedom of this body politick, but such as are members of some church of Christ and

1 A transaction deserves mention in this place as indicative of the public sentiment at this period, which "has been magnified by too precipitate an admiration into a protest on the part of Massachusetts against the African slave trade." 1 Hild. p. 282. It was discovered in the year 1645, that two negroes who had been brought to Boston in a vessel which had sailed thence, 'bound to Guinea to trade for negroes,' had not been bought there in the regular course of traffic, but had been kidnapped on the coast of Africa, and that at the same time the crew, with others from some London vessels, had on a Sunday attacked an African village, and killed many of the inhabitants. The master and crew were charged with the offences of murder, man-stealing, and Sabbath-breaking. The magistrates were not sufficiently clear as to their authority to punish crimes committed on the coast of Africa; but they ordered the negroes to be sent back at the public charge, as having been procured not honestly by purchase, but by the unlawful act of kidnapping, and by a letter expressing the indignation of the General Court,' they bore witness against the heinous offence of manstealing.' 2 Winthrop, 243 and Appendix M. 1 Banc. 174. Mass. Rec. II, pp. 136, 168.

* In 1649, a penal code was compiled and printed, no copy of which, it is believed, is now in existence. See 1 Hildr. 368.

This order was never carried into effect, no ship-master being found willing to carry them away.-1 Sewel's Hist. Quakers, 8vo. p. 278.

in full communion, which they declare to be the true intent of the ancient law," [anno 1631.]-Charters, &c., p. 117.

1664. "In answer to that part of his Majesty's letter, of June 28, 1662, concerning admission of freemen; this Court doth declare that the law prohibiting all persons, except mem⚫bers of churches, and that also for allowance of them in any county court, are hereby repealed, and that all Englishmen presenting a certificate under the hands of the minister of the place where they dwell, that they are orthodox in religion and not vicious in their lives, and also a certificate under the hands of the selectmen, &c., that they are freeholders, &c., rateable, &c., or that they are in full communion with some church among us; if they desire to be freemen they shall be allowed the privilege to have such their desire propounded and put to vote for acceptance to the freedom of the body politick, by the suffrage of the major part, according to the rules of our patent."-Charters, &c., p. 117, IV. Mass. Rec. Part II. p. 117, and p. 56.'

The colonies of New Plymouth and Massachusetts Bay became, in the year 16922, united into the Province of Massachusetts Bay.

1698, Laws of, c. 6.-A law forbidding to trade or truck with "any Indian, molato, or negro servant or slave, or other

See the king's letter in IV. Mass. Rec. 2d part, p. 164-6, which enjoins "that all freeholders of competent estate, not vicious in conversation and orthodox in religion (though of different persuasions concerning church government) may have their votes in the election of all officers."

2 The charter provided for election of deputies to the general court "by the major part of the freeholders and other inhabitants of the respective towns or places who shall be present at such elections." "No freeholder or other person" to have a vote, who should not have a certain freehold estate. "It contained a clause that all and every of the king's subjects "which shall go to and inhabit within" the province, and their children born there, should have the liberties, &c., of subjects in other parts of the empire. The governor and general court were vested with power to enact laws, "so as the same be not repugnant or contrary to the laws of this our realm of England."-Charters, &c., p. 18.

Charters, &c., p. 213, 229, gives enactments as of 1692, continuing the laws of Massachusetts and Plymouth colonies until the next year, founded on a doubt as to the continuance of the local law. (See 2 Hutch. p. 20,) and p. 214, An act setting forth general privileges, one of which is, "no freeman shall be taken and imprisoned, or be disseized of his freehold or liberties, or his free customs, &c., &c., but by the lawful judgment of his peers, or the law of this province." Also p. 224, An act for the better securing of the liberty of the subject and for prevention of illegal imprisonment. These acts, with some others there given, do not appear in the collections of the Province laws, printed in 1726 and 1759; they appear to have been disallowed by the Crown. See 1 Holmes' An. 440, n. 1 Hildr. 167.