Thursday, July 25, 2019

"Repugnant to Its Existence" - A Brief Snapshot of the Legal Rights of Enslaved People in Colonial Massachusetts

In 1700, a royal census report indicated that there were over 27,000 enslaved people in the American colonies. Of course, slavery did exist in Massachusetts, and there were slaves living throughout the colony at the outbreak of the Revolution. In fact, slavery had existed in Massachusetts almost from its founding, but the institution had never flourished when compared to the southern colonies.

In some households, male slaves worked side by side with their masters as coopers, blacksmiths, shoemakers, and wheelwrights. In other homes, they ran errands, functioned as valets and performed heavy work for their masters. In Boston, slaves worked closely with sailors and merchants. Female slaves were often required to carry out the various household tasks their mistresses demanded.

Surprisingly, Massachusetts slaves were not without rights. Unlike slaves in the southern colonies, New England slaves could hold property and serve in the militia, as was the case, for example, with five of Lexington’s slaves: Prince Estabrook, Pompey Blackman, Samuel Crafts, Cato Tuder, and Jupiter Tree. However, it wasn’t until the eve of the American Revolution that black men were welcomed into the ranks of the militia. In 1652, the Massachusetts Legislature enacted a law requiring all African-Americans and Indian servants to undergo military training and serve in the militia. Four years later, fearing a slave revolt, Massachusetts reversed the law and prohibited African-Americans providing military service.

Enslaved people could testify in Massachusetts colonial courts against both whites and other blacks, however the weight and value of their testimony were often diminished or discounted because of their status.

A slave could also sue for freedom, as demonstrated by a female mulatto slave named Margaret. On November 20, 1770, Margaret appeared in a court in Cambridge represented by the Boston lawyer Jonathan Sewall. John Adams, who was in the midst of the Boston Massacre trial, represented her masters, the Muzzey family of Lexington. At the end of the hearing, which lasted most of the day, the court freed Margaret.

On rare occasions, enslaved people were also permitted to petition their town selectmen or colonial government for legal assistance. In 1774, several African-Americans addressed the Massachusetts General Court and demanded they be granted the rights and benefits of liberty that their white counterparts were demanding of the crown.

Still, slavery was a degrading and inhumane institution.

By 1643, all of the New England colonies had established laws punishing runaway slaves as “fugitives”. In 1667, England enacted strict laws regulating slavery. A slave was forbidden to leave his master’s property without a pass or permission from his master and never on Sunday. Thus, a slave could not move in search of opportunity or even travel outside of his or her town without the master’s assent. If he were discovered, a slave would be prosecuted as a fugitive. A slave could marry only with the master’s blessing and interracial marriage was illegal.

By 1667, most American colonies had recognized that a slave could not be freed from bondage by baptism, thereby discarding the Christian principle of enslaving other Christians. That same year, the penalty for killing a slave in Massachusetts was a mere £15.

In 1670, the Massachusetts legislature passed a law permitting slaveholders to sell children of slaves into bondage. Thus, a slave, as well as his wife and children, could be sold to another owner at his master’s whim. As late as 1774, the seaside town of Newburyport was hosting auctions for the sale of child slaves.

Finally, a slave was always subject to both actual and potential cruelty against which there was no defense. On Boston Neck, travelers were presented with the view of a cage containing the bones of Mark, a slave who had been convicted of murdering his master. The spectacle was intended to serve as a constant reminder to slaves in Massachusetts of the potential penalties for defiance. If a slave struck a white man, he would be summarily and severely punished. Even worse, by 1682, most American colonies prohibited slaves from asserting self-defense in criminal prosecutions.

By the start of the 18th Century, prominent Massachusetts officials recognized the evils of the practice and called for an end to it. In 1700, Chief Justice Samuel Sewall of the Massachusetts Supreme Judicial Court published The Selling of Joseph, a book outlining the economic and ethical grounds for abolishing slavery. In 1764, James Otis, a leading proponent of colonial independence, wrote in a highly regarded and influential pamphlet "The colonists are by the law of nature freeborn, as indeed all men are, white or black."

Unfortunately, it was not until 1783, through a series of cases known as "the Quock Walker Case," that slavery was abolished in Massachusetts. As Supreme Judicial Court Chief Justice William Cushing asserted "[S]lavery is in my judgment as effectively abolished as it [is] wholly incompatible [with the Massachusetts Constitution] and repugnant to its existence."

Wednesday, July 17, 2019

"Far Beyond Any Honest Means" - Was a Child Arsonist Responsible for the Great Fire of 1811?

Newburyport’s Great Fire of 1811 has recently been on the nerds’ collective mind. The May 31, 1811 conflagration consumed over sixteen acres of the modern downtown area and caused over two million dollars in damage. When taking inflation into account, this roughly translates to somewhere between forty million and seventy million dollars in 2019 USD currency. By the time the fire was extinguished, Newburyport was economically and physically devastated.

Often visitors to Newburyport will ask the historical tour company Untapped History who was responsible for the fire. Admittedly, to this day no one knows who started the fire. At the time, many of the residents suspected that an arsonist set the fire in a stable or shed near Mechanic’s Row. A sizeable reward was offered for information leading to the apprehension of the culprit, but no one came forward.

Recently, we’ve come across several essays and books from modern historians who have indirectly suggested that the teenage arsonist Stephen Merril Clark may have been responsible for the fire. Similarly, we’ve encountered inferences from media sources that imply Clark was also responsible for Portsmouth’s (NH) Great Fire of 1813.

So who was Stephen Merril Clark and was he responsible for the Great Fire of 1811? 

Clark was born on August 20, 1804, and was the son of Moses Clark of Newburyport. According to one early 19th Century account, the boy quickly “betrayed a stubborn and refractory spirit, often too turbulent for control. As he advanced in years it became more and more visible that mischief was his element, and falsehood and profanity became so habitual to him that a lie, or an oath were usually on his tongue, and the most vulgar insolence and abuse to his superiors were his characteristic traits.”

Shortly after his fourteenth birthday, he was brought before a magistrate for an assault and battery that he committed against an elderly man. Other accounts document how Merrill was the prime suspect in several petty thefts as well as far “more heineous depredations, as he often showed sums of money to an amount far beyond any honest means of obtaining them, which he was known to possess.”

In an effort to dissuade future criminal behavior, Moses Clark placed his son in the service of a relative to learn the trade of a baker. Unfortunately, Steven continued to engage in criminal mischief while with the relative and “was sent away on account of his bad conduct.” Desperate to steer him away from a life of crime, Stephen’s parents then arranged for him to serve as an apprentice to a Newburyport cooper. Unfortunately, “after three weeks' gross misconduct and several thefts from his master” he ran away to parts unknown.

Eventually, he returned and for the next three years Clark “loitered about the streets without employment or restraint; and spent his time in vile company and wanton mischief, insulting all who rebuked him for his conduct with the most hardy insolence.”

His father became so distraught over Stephen’s demise that in early August 1820, he begged the Newburyport selectmen to place his son in protective custody. Unfortunately, town leaders declined to interfere. Desperate to remove his son from a life of crime, Moses Clark appeared before a magistrate and swore out a warrant accusing his son of assault. However, when Stephen made a “show of penitence and promise of amendment, he (Moses) directed the officer not to serve the warrant at that time; and it was reserved in terrorem.”

Stephen Merrill Clark was never arrested and three days later, the teen tried to burn Newburyport to the ground.

According to period accounts, Newburyport had been plagued with suspicious fires throughout the summer of 1820. During the evening of August 16th, a building was torched and completely gutted. A few hours later, during the early hours of the 17th, the inhabitants of Newburyport were awoken to the sound of battle rattles being spun, bells ringing and the fearful outcry of “fire!”. This particular blaze started in a stable and quickly spread to a nearby dwelling where an entire family was sound asleep. Miraculously, the family escaped unhurt.

The fire burned for the next several hours and destroyed no less than nine residences and commercial buildings between Charter and Temple Streets.

Clark was immediately identified as the prime suspect and was quickly arrested. However, his father came forward and swore under oath that his son was at home in bed at the time of the fire. Without sufficient evidence, the boy was released from custody. In a last-ditch effort to get his son out of Newburyport and away from a life of crime, Moses sent Steven to Belfast, Maine to secure employment.

Of course, it didn’t help matters that Steven allegedly declared before his departure “that he would soon return, and set fire to the town in several places, so as it would not be extinguished.”

Unfortunately, Clark was unsuccessful securing work in Maine and sailed to Boston. After spending a brief time in the city, he began to walk home by way of Ipswich.

Meanwhile, a Newburyport prostitute by the name of Hannah Downes came forward and testified before a magistrate that Clark was responsible for the various fires in town. According to Downes, the teen had “smuggled a note telling her that he had started the fires. She immediately informed the authorities and told them also that he had confessed his crime to her the day after.” Later, the prostitute would recount how Clark had “told me he set fire to the building … that he went to his father's cellar, got a candle, broke it and thought it would not do; then took some matches and his cigar and went to Cross' stable between 8 and 9 or 7 and 8, I can not recollect which. He went up into the upper loft of the stable … scraped up a handful of hay and put it under the stairs, put the candle in the hay, lit his match with his cigar and lit the candle and went down from the stable to the fence.”

A warrant for Clark’s arrest was sworn out and the boy was apprehended while he was still in Ipswich.

Clark was tried for the capital offense of Arson in Salem in October 1821. During the proceedings, the prosecution revealed that he had not only admitted his guilt to Hannah Downes but to several other individuals who had visited him while he was held in a Newburyport jail.

However, Clark denied committing the crime and his attorney tried to establish an alibi. Unfortunately, the affirmative defense was rejected by the jury and he was found guilty. The next month the boy was executed. 

Prior to his death he confessed to starting several Newburyport fires and placed the blame for his conduct squarely at the feet of Hannah Downes, who Clark charged had persuaded him to set the fires.

Of course, all of this still begs the question: did Stephen Merrill Clark start the Great Fire of 1811?

At the time of the Great Fire of 1811, Clark would have been approximately six years old. The American Psychological Association has identified child arsonists as young as four. According to the organization, children who only set fires once or twice and then terminate the behavior are typically classified as “curiosity firesetters”. On the other hand, if a child is repeatedly setting fires throughout their childhood and teenage years as a way to secure emotional and physical relief, then they are usually classified as “pathological firesetters”. This group of firebugs will often cause significant property damage and will also engage in aggressive and confrontational behavior.

Clark was living in Newburyport at the time of the Great Fire of 1811. From the testimony at trial and the accounts of Steven Clark’s childhood, there is some evidence that supports the proposition that he was a pathological firesetter.

For example, the prosecutor at Clark’s trial subtly suggested that perhaps the teen was a firebug who was responsible for the various fires that had plagued the town over the previous decade. During the rebuttal phase of the trial, he also introduced testimony from three witnesses who asserted Clark was a serial arsonist. A blacksmith who had repaired the boy’s shackles while he was in custody awaiting trial asserted Clark had threatened to burn the man’s house and all of Newburyport to the ground if he ever escaped. Ephraim Sweet testified that Clark had previously tried to burn down his shop while a gentleman identified only as S.W. Marston declared that the boy’s father often complained that as a result of his son’s behavior, he “could not sleep nights, for he was afraid he should wake up and find the town on fire.”

Following his conviction, the teen gave a full confession and described the other fires he set prior to the August fire. For example, he described how he and another boy had tried to set fire to a rum distillery located on Brown’s Wharf. When he was asked why he did this, he stated he had no ill will towards the owner of the distillery or the wharf and had “no cause for harbouring the design, which he had meant to execute.”

Of course, one could also argue that Clark was not involved with the 1811 fire. On the eve of his death, Clark was asked when he started setting intentional fires in Newburyport. The teen stated he only started committing arson after he had fallen in love with Hannah Downes and acted solely at her direction. Furthermore, in his post-conviction confession, he never mentions the 1811 fire.

So, was Steven Merrill responsible for the Great Fire of 1811?

We may never know!

Wednesday, July 3, 2019

"A List of Imaginary Grievances" - A Loyalist's Response to the Declaration of Independence

Boston-born Loyalist Thomas Hutchinson held several prominent positions within the Colony of Massachusetts Bay, including chief justice, lieutenant governor, acting governor, and finally governor. 

During his time in Boston, Hutchinson and his family were often the victims of mob violence. On August 15 1765 an unruly crowd descended upon his house after a rumor surfaced that he supported the Stamp Act. When Hutchinson refused to accede to the demand that he come out and explain his position, the mob broke several windows and then dispersed.

Two weeks later, on August 28, 1765, an even larger mob returned to the loyalist’s residence. Fortunately, Hutchinson managed to evacuate his family to safety. Then, as he later described it, “the hellish crew fell upon my house with the rage of divels and in a moment with axes split down the door and entered. My son heard them cry ‘damn him he is upstairs we’ll have him.’ Some ran immediately as high as the top of the house, others filled the rooms below and cellars and others remained without the house to be employed there. I was obliged to retire thro yards and gardens to a house more remote where I remained until 4 o’clock by which time one of the best finished houses in the Province had nothing remaining but the bare walls and floors.”

After General Thomas Gage assumed political and military command of the colony in 1774, Hutchinson returned to England.

Almost two years after his departure from Massachusetts, Americans drafted the Declaration of Independence.  Hutchinson publicly dismissed the document as a “list of imaginary grievances.” He quickly drafted a rebuttal, submitted it to royal authorities and had it published anonymously in English newspapers.

Initially, the former governor noted that “Their designs of Independence began soon after the reduction of Canada, relying upon the future cession of it by treaty. They could have no other pretense to a claim of independence, and they made no other at first, than what they called the natural rights of mankind to choose their own forms of Government and change them when they please.”

With the memories of the Boston mob attacks against him likely still fresh in his mind, Hutchinson was quick to point out that it was Massachusetts Bay Colony that was the driving force behind the move towards independence. “We shall find … that Massachusetts Bay is more concerned in this Declaration than any other Colony … Your Lordship must remember the riotous,violent opposition to Government in the Town of Boston, which alarmed the whole Kingdom in the year 1768. Four Regiments of the King’s forces were ordered to that Town to be aiding to the Civil Magistrate in restoring and preserving peace and order. The House of Representatives, which was then sitting in the Town, remonstrated to the Governor against posting Troops there as being an invasion of their rights . . . How ridiculous then do those men make themselves, who offer it to the world as a ground to justify rebellion?”

In regard to the American claim that England had cut the colonies off from trade via the “Intolerable Acts”, Hutchinson replied “this could not be a cause of Revolt. The Colonies had revolted from the Supreme Authority to which by their constitutions they were subject before the Act passed. A Congress had assumed an authority over the whole, and had rebelliously prohibited all commerce with the rest of the Empire. This act, therefore, will be considered by the candid world as a proof of the reluctance in government against what is dernier resort in every state, and as a milder measure to bring the Colonies to a re-union with the rest of the Empire.”

Similarly, in response to the Declaration’s criticism of imposing taxes without American consent, Hutchinson noted “How often has your Lordship heard it said that the Americans are willing to submit to the authority of Parliament in all cases except that of taxes? Here we have a declaration made to the world of the causes which have impelled separation. . . And I know, my Lord, that these men, in the early days of their opposition to Parliament, have acknowledged that they pitched upon this subject of taxes because it was most alarming to the people, every man perceiving immediately that he is personally affected by it.”

In arguing for separation, the subscribers to the Declaration asserted that His Majesty’s government had committed a wide array of atrocities, including waging war against loyal subjects, kidnapping sailors on the high seas, burning towns and “[destroying] the lives of our people.” These specific claims troubled Hutchinson and led him to assert that the rebelling colonies were solely responsible for their own misery. “These, my Lord, would be weighty charges from a loyal and dutiful people against an unprovoked Sovereign. They are more than the people of England pretended to bring against King James the Second in order to justify the Revolution. Never was there an instance of more consummate effrontery. The Acts of a justly incensed Sovereign for suppressing a most unnatural, unprovoked Rebellion are here assigned as the causes of this Rebellion. It is immaterial whether they are true or false. They are all short of the penalty of the laws which had been violated. Before the date of any one of them, the Colonists had as effectually renounced their allegiance by their deeds as they have since done by their words. They had displaced the civil and military officers appointed by the King’s authority and set up others in their stead. They had new modeled their civil governments and appointed a general government, independent of the King, over the whole. They had taken up arms, and made a public declaration of their resolution to defend themselves against the forces employed to support his legal authority over them.”

In the conclusion of the rebuttal, the former Massachusetts leader stressed that the Declaration was nothing more than a feeble attempt to justify rebellion and there were many men who supported the crown but feared to speak out due to the violent tendencies of American mobs. “They have, my Lord, in their late address to the people of Great Britain, fully avowed these principles of Independence by declaring they will pay no obedience to the laws of the Supreme Legislature … and have endeavored to persuade such as they called their British Brethren to justify the Rebellion begun in America, and from thence they expected a general convulsion in the Kingdom . . .The people have not observed the fallacy in reasoning from the whole to part, nor the absurdity of making the governed to be governors. From a disposition to receive willingly complaints against Rulers, facts misrepresented have passed without examining. Discerning men have concealed their sentiments, because under the present free government in America, no man may, by writing or speaking, contradict any part of this Declaration without being deemed an enemy to his country, and exposed to the rage and fury of the populace.”