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BRIEF OF LEYI LINCOLN
SLAVE CASE TRIED 1781.*
Jennison vs. Caldwell.
1 Quest. Is Qaork Jennisoti's servant.
2dly. Did he [that is, Caldwell] entice and seduce him or rescue him.
Is he a servant by his own consent.
Is he a born slave. Mr. Sprague reads a bill of sale to James Caldwell, May 4, 1754.
Is there any thing peculiar to his form or person that makes him a slave — we differ. But we differ as much from them, as they do from us — are born in the same manner, our bones clothed with the same kind of flesh, live and die in the same manner. Is there any thing therefore in his person.
Is he a slave by the custom of the country. A custom must be general. It is not a general custom. It has ever been against the principles of some to make slaves, who have freed them.
It must be undisputed. It has always been disputed in the Genl Ct. and courts of justice — and else where.
* This case was tried before the Supreme Judicial Court of Massachusetts at the September term, 1781. Caleb Strong and Levi Lincoln were counsel for the plaintiff, and Judge Sprague and William Stearns for the defendant. This brief of Levi Lincoln has been literally copied, with all its clerical errors, from the original in his own handwriting, in a volume of his briefs in the Library of the American Antiquarian Society. The paper is in the form of two briefs. In the heading of the second there is an error in the Christian name of one of the defendants. They were John and Seth Caldwell. This brief has been used by Professor Emory Washburn in an interesting article on the "Extinction of Slavery in Massachusetts/* in the Proceedings of this Society for May, 1857. For a history of this case, and an account of the several trials, all of which substantially involved the question as to the slavery or freedom of the negro, Quork Walker, see Judge Gray's paper read before this Society at the April meeting, 1874, in the Proceedings. — Eds.
It must not be against reason — which we will consider by and by.
The air in America is too pure for a slave to breathe in.
But Sprague sa}^s our ancestors were pious.
Is he a slave by the law of the country — the several laws of the State read. In derogation of common law — to be construed strickly.
But contrary to the law of nature.
Consequences to the poor of the country.
Sending them to the West Indies.
Selling children from parents.
One common —
Nathaniel Jennison vs. Wm. Caldwell and Others. The negro a ser[vant?] Caldwell, &c.
I don't feel anxious about the event.
Question. If Quork is Mr. Jennison's servant.
2dly. If Defendants inticed him away.
First Plf. say the Negro is a servant by his own consent. If so there must be some evidence of that consent either implied or expressed — and the terms understood — and some term of time agreed on — for if he consented to be his servant and no time agreed on it will be only during will which he may put an end to when he pleases.
No evidence of consent.
Secondly that he is so by bill of sale and is his property. That he was the property of one Caldwell, &c, his servant which was his money — and that he passed from him to Jennison's wife.
The first authority is Exodus — he is money. This was peculiar to the Jews. They were allowed to make slaves of the heathen round about them — but if their brother waxed poor, he could not be their bond slave, but should serve as a hired man — we are brothers.
The law of the State — any laws, against the laws of nature, void. Laws that establish slavery against the laws of nature. Blackstone —1 Blac. 91, 31, 423.
Mr. Stearns says the custom and usage of the country consider slavery as right.
Objt. Custom and usages against reason and right, Void.
Exodus says a man's servant is his money — from thence the gent argues slavery — but gent are you to try cases by the old Jewish laws — this was an indulgence to that nation, to make slaves of the heathen round about them.
But even by these severe laws, w[h]ere there was eye for eye, and tooth for tooth, they were not allowed to make slaves of their brothers, for if he waxed poor, the[yj should not make a bond slave of him, but hire him.
This Quork is our brother. We all had one common origin, descended from the same parents, are cloathed with the same kind of flesh, had the same breath of life — have the same common Saviour.
Has Mr. Caldwell enticed him. When one fellow subject is restrained of his liberty, it is an attack on every subject— every one has a right.
What is the consequence of your verdict — will it not be glad tidings of great joy — it is opening the prison doors and letting the prisoner go free.
Can we expect to triumph over G. Britain, to get free ourselves until we let those go free under us., Are we not acting as Pharaoh and the Egyptians in not letting the [the end of the sentence].
Mr. Stearns. Slavery is a respectable affair in this country.
The question is not whether — So Haman's situation was exalted.
Mr. Stearns, says it is not true that all men a [re] born free, for children are born under the power of their parents — not as slaves—to be nursed, nurtured and educated for their good. But the black child is born as much and free and white.*
Says the constitution only determines that those that have been born since are equal and free. Says that since the Constitution he agrees everybody is born free. But people will lose their property, and be starved.
It is begging the question. Is he property, if so, treat him as stock, as the ox and the horse.
* Sic. —Eds.
Says you are to enquire it is a good or bad custom. Is it not a bad custom?
What is the consequence — how does the matter originate, and what are the consequences. Kidnapping and man-stealing in the negro country. [The damages — and attack on the liberty of the subject, is a dangerous outrage on the community] *
The consequence here, the child (the infant) may be wrested from the breast of its mother—sold or given away, as a pig or puppy — the mother never to see it again.
Is not their child as dear to black subjects as to white.
Is not this contrary to nature. Does not Heaven say so, in the greatest degree — can a woman forget her sucking child.
But does not the beasts and birds nurture and bring up their offspring who acts by instinct.
The master has a right to separate the Husband and wife — is this consistent with the law of nature. Is it consistent with the law of nature to separate what God has joined and no man can put asunder.
Mr. Sprague says in England, for crimes, a person may be sent into other parts, from their parents, sisters, and brothers — never to return.
In the present case, a subject of this free comnwealth may be taken from his friends, father, mother, sisters and brothers, on ship with spavined horses to the West Indies.
Says in the early ages of the country they were needed to cultivate.
It is injurious to the poor people.
Says the children of slaves must be slaves, because our first parents fell and we with them.
Mr. Sprague speaks of law.
Speaks of the last adjudication on the laws.
Says negroes were the property of their master.
But we all a [re] born in the same manner, have our bones clothed with the same kind of flesh, had the same breath of life breathed into us — are all under the same Gospel dispensation, have one common Saviour, inhabit the same com[mon ] globe of earth, die in the same manner, the white may have their bodies wrapt in rather finer linnen, and his coffin a little more decorated — and then all distinctions of mens making ends — we all sleep on a level in the dust. Shall all be raised by the sound of one common trump, calling to all that are in their graves without distinction, to arise. Shall be arraigned at one common bar. Shall have one common judge, tried by one common jury — condemned or acquitted by one common law — by the Gospel, the perfect law of liberty.
* Erased. — Eds.
This cause will then be tried over again, and your verdict, gentlemen of the jury, Avill then be tried. Therefore, gentlemen of the jury, let me conjure you to give such a verdict now as will stand the test, as will be approved of by your own minds in the last moments of your existence — by your Judge at the last day.
It will then be tried by the laws of reason and revelation.
Is it not a law of nature that all men are equal and free.
Is not the laws of nature the laws of God.
Is not the law of God, then, against Slavery. If there is no law of man establishing of it, there is no difficulty. If there is, then the great difficulty is to determine which law you ought to obey — and if you should have the same ideas as I have of present and future things, you will obey the former. For the worst that can happen to you for disobeying the former is the destruction of the bodjr, for the last, that of your own souls.
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Is lie a slave by law.