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
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.
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 description begins S. P. Scott, transl., The Civil Law, Cincinnati, 1932; 17 vols. description ends 5).
“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.”
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 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 description begins John Langdon Sibley and Clifford K. Shipton, Biographical Sketches of Graduates of Harvard University, in Cambridge, Massachusetts, Cambridge and Boston, 1873– . description ends 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 description begins T. F. T. Plucknett, Concise History of the Common Law, 5th edn., London, 1956. description ends 456–458; 5 Bacon, Abridgment description begins Matthew Bacon, New Abridgment of the Law, London, 1736–1766; 5 vols. description ends 150; 3 Holdsworth, History of English Law description begins William Holdsworth, A History of English Law, Boston and London, 1922–1952; 13 vols. description ends 331–333. Compare Fifoot, History and Sources description begins C. H. S. Fifoot, History and Sources of the Common Law, London, 1949. description ends 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 description begins William H. Whitmore, comp., The Massachusetts Civil List for the Colonial and Provincial Periods, 1630–1774, Albany, 1870. description ends 124. The case has not been identified.
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.