§1. Elements of colonial slavery.—By the middle of the seventeenth century, the settlements made in America by the English, Dutch, and Swedes were arranged for the most part in a line of little colonies closely following the Atlantic coast. To the west, wide forests and plains, broken only by the paths of the Indian, stretched on to the Pacific; while long intervals of unpopulated country separated the colonists on the north from the French in Canada, and on the south from the Spaniards in Florida.

In all the colonies thus grouped together, the system of slavery had already become well established, and with its institution the question of the escape and return of the slaves had necessarily arisen. The conditions of the country, both physical and social, gave unusual facilities for flight. The wild woods, the Indian settlements, or the next colony, peopled by a foreign race, and perhaps as yet without firmly established government, offered to the slave a refuge and possibly protection. Escape, therefore, as a peculiar danger, demanded peculiar remedies. Though it is the purpose of this monograph not so much to study the detail of legislation or escape in the colonies as to deal with the period from 1789 to 1865, a slight sketch of the intercolonial laws and provisions which preceded and in part suggested later legislation will first be necessary.

Almost immediately after the introduction of slavery, in 1619, we begin to find regulations made by the colonists upon this subject. At first they applied solely to their own territory, but soon agreements were entered into among several colonies, or between a colony and the Indians or the French in Canada. These acts and agreements recognized not only the negro, as at a later period, but also the white and the Indian slave. There existed in some of the colonies of this time a peculiar class of white people, who received no wages, and were bound to their masters.¹ Usually these redemptioners were laborers or handicraftsmen, but sometimes they were persons of education who had committed a crime, and were sold according to law for a term of years, or for life. One of the class is curiously connected with the education of no less a person than George Washington. An unpublished autobiography of the Reverend John Boucher, who from 1760 to the Revolution was a teacher and preacher in Virginia, contains the following paragraph noticing the fact:—

§2. Regulations as to fugitives.—The earliest regulation upon this subject is found among the freedoms and exemptions granted by the West India Company, in 1629, "to all Patroons, Masters, or Private Persons" who would agree to settle in New Netherlands. The authorities promised to do all in their power to return to their masters any slaves or colonists fleeing from service.³

A little later, the Swedish colonists in Pennsylvania asked from their government the same privilege of reclaiming fugitives.⁴ The preamble of an act against fugitives in East Jersey, in 1686, explains these provisions. They found that "the securing of such persons as Run away, or otherwise absent themselves from their master's lawfull Occasion," was "a material encouragement to such Persons as come into this country to settle Plantations and Populate the Province.⁵ In many of the Southern colonies, as Maryland and South Carolina, so severe were the acts against this class of bound colonists that a runaway might be declared outlawed, and might rightfully be killed by any person.⁶

Treatment of the Fugitives.

§3. Treatment of fugitives.—From 1640 to 1700, laws were also passed in New Jersey, Maryland, South Carolina, and Virginia. It is not necessary to follow out the provisions here,⁷ but each of the Southern colonies, as in later regulations, provided most minutely for all possible cases. By a Virginia law of 1642, all persons who entertained runaways, whether slaves or hired freemen, were to be fined twenty pounds of tobacco for each night's hospitality. The fugitives were to add to their tenure of service double their time of absence, and on a second offence to be branded with the letter R.⁸

A curious regulation in 1660-1, in Virginia, provided that if a negro and white bound servant ran away together, since the negro's time of servitude was for life, and he was therefore incapable of making up his lost time, the white servant's punishment should be doubled by adding the negro's sentence to his own.⁹ Another regulation, entitled "How to Know a Runaway," commanded that all recovered fugitives have their hair "cutt" close about their ears.¹⁰

Sometimes the penalties were even more severe, but the processes were much the same. A person who found a slave or vagabond without a pass usually took him before the next justice, who took cognizance of the captor's good service, and certified it in the next Assembly: the runaway was then delivered from constable to constable, until he was returned to his master.

After 1700 the process grows yet more elaborate; for example, take a North Carolina law of 1741. The securer of a runaway was to have seven shillings and sixpence proclamation money, and for every mile over ten which he conducted the fugitive threepence extra. When seized, runaways were to be whipped and placed in the county gaol. If the owner was known, he was notified and went for his slave; if not, a notice describing the runaway must be placed upon the door of the court-house, and sent to the clerk or reader of each church or chapel within the county. They were required to post all such notices every Lord's day for two months in some convenient place near the church. At the end of this time, should no claimant appear, the slave must be sent from constable to constable, till the public gaol of the government was reached. There, upon consent of the court or of two justices, he might be sold to hire by the gaoler.¹¹ The Maryland Archives record that in 1669 ten thousand pounds of tobacco were appropriated to build one of these log-house gaols wherein fugitive servants might be lodged.¹²

§4. Regulations in New England colonies.—Let us turn now to the New England colonies. Here we must expect to find but few provisions, since the class of slaves and bound servants was so small that it could easily be controlled. The first law in Massachusetts Bay was passed in 1630, and was entitled, "An Act respecting Masters, Servants, and Laborers." In accordance with the arbitrary methods of government then pursued, it included not only runaway servants, but also any persons who should "privily go away with suspicion of evil intention," and ordered the magistrate "to press men, boats, or pinnaces," and "to bring them back by force of arms." A humane provision, usually wanting in Southern laws, though also found in New Netherlands, declared that, whenever servants fled on account of the tyranny of their masters, they should be protected until measures for their relief could be taken.¹³

In Connecticut and New Hampshire similar laws were passed, and in 1707 Massachusetts Bay, in regulating the free negro population, enacted that every freeman or mulatto who should harbor a negro servant in his house without his owner's consent should pay five shillings for the use of the poor of the town.¹⁴

In those days, when bridges were few, the ferrymen were apparently much relied upon as agents to detect and apprehend runaways. In 1714 we find that several negro slaves had been carried over ferries, and thus escaped out of Rhode Island. The Assembly therefore enacted that "no ferryman or boatman whatsoever, within this colony, shall carry or bring any slave as aforesaid over their ferries, without a certificate under the hands of their masters or mistresses, or some person in authority, upon the penalty of paying all costs and damages their said masters or mistresses shall sustain thereby: and to pay a fine of twenty shillings for the use of the colony for each offence, as aforesaid." All persons were also commanded to take up any slave they might find travelling about without a pass.¹⁵

Escapes in New England.

§5. Escapes in New England: Attucks case.—Although we do not find records of fugitive slave cases tried at this time within the New England colonies, advertisements of runaways exist in sufficient numbers to prove that escapes were common. It seems probable, therefore, that the return of a slave when within his own colony was taken as a matter of course, and roused so little opposition, and required so simple a process at law, that matters concerning it would seldom find mention in the chronicles of the time. Here is a typical advertisement:—

Again a case interesting not only as an illustration of the customs of the time, but also because the fugitive himself bears a name known to history in another connection, is noticed in the Boston Gazette of 1750. Here is advertised as escaping, October 2, 1750, from his master, William Browne of Framingham, Massachusetts, "A molatto fellow about twenty-seven years of age, named Crispus." After describing his clothing and appearance, a reward of ten pounds, old tenor, is offered for his return, and "all masters of vessels and others are cautioned against concealing said servant on penalty of law."¹⁷ Tradition has it, however, that he was never arrested, but returned of his own accord after a short time, and was for the next twenty years a faithful servant.¹⁸ Then, in 1770, presumably while in town upon one of the expeditions he often undertook to buy and sell cattle for his master, he was drawn into the Boston Massacre of March 5.¹⁹

A somewhat famous case, which also occurred in Massachusetts, though many years later, may here be mentioned. About 1769 one Rotch, a Quaker, and therefore probably opposed to slavery, received on board the whaler Friendship a young negro boy named Boston, belonging to the heirs of William Swain. At the end of the voyage his master, John Swain, brought action in the court of Nantucket against Captain Folger for the recovery of the slave; the jury, whether from lack of evidence or from sympathy cannot be determined, returned a verdict in favor of the defendant.²⁰

Dutch and Intercolonial Regulations.

§6. Dutch regulations in New Netherlands.—The early New Netherlands regulations furnish many interesting provisions concerning fugitive servants. Apparently the servile class was numerous, and hard to govern. In the words of the ordinance of 1640, "many servants daily run away from their masters, whereby the latter are put to great inconvenience and expense; the corn and tobacco rot in the field, and the whole harvest is at a standstill, which tends to the serious injury of this country, to their masters' ruin, and to bring the magistracy into contempt." It was therefore ordained that runaways must, at the end of their term of indenture, serve double the time of their absence, and make good all loss and damage to their masters; while persons harboring fugitives were obliged to pay a fine of fifty guilders.²¹

§7. Escapes from New Amsterdam.—Within these Dutch colonies there is recorded a case of escape as early as 1659. Four menservants of Cornelis Herperts de Jager, of New Amsterdam, ran away to Manhattan. One of them soon returned, and in accordance with the regulation made in 1630 by the West India Company,²² requiring the return of fugitives in their various settlements, one of the officers of the colony sent to Manhattan an order to arrest and bring back the remaining three in chains.²³

§8. Intercolonial regulations.—It will be seen that most of the colonies considered some provision against runaways necessary to the welfare of the settlements. To secure such legislation in a single colony was a comparatively easy matter; but the unorganized and sparsely settled condition of the country rendered any intercolonial regulations difficult.

The first formal agreement of this kind was arranged by the New England Confederation of Plymouth, Massachusetts, Connecticut, and New Haven, in 1643. In their Articles of Confederation was a clause which promised: "If any servant runn away from his master into any other of these confederated Jurisdiccons, That in such Case vpon the Certyficate of one Majistrate in the Jurisdiccon out of which the said servant fled, or upon other due proofe, the said servant shall be deliuered either to his Master or any other that pursues and brings such Certificate or ²⁴ This clause contains the earliest statement of the principles regarding the treatment of fugitive slave cases, afterward carried out in the United States statutes of 1787, 1793, and 1850. There was no trial by jury, but the certificate of a magistrate was sufficient evidence to convict the runaway.

It is probable, also, that the rendition of fugitives was considered a duty incumbent upon all colonies, whatever their relation to each other, since about this time we find an agreement made for the mutual surrender of fugitives between the Dutch at New Netherlands and the English at New Haven.²⁵

Not only did the slaves of the Dutch escape to the English colonies, but they often fled to the forests, where recovery must have been almost impossible unless the Indians could be induced to hunt them out. Curious rewards were sometimes offered. Maryland, in 1669, ordered that any Indian who shall apprehend a fugitive may have a "match coate," or its value.²⁶ Virginia would give "20 armes length of Roanoke," or its value,²⁷ while in Connecticut "two yards of cloth" was considered sufficient inducement.²⁸

We have record of several conferences upon this subject. Governor Burnett of New York asked his Indians to exert themselves in behalf of the Governor of Virginia, who had written to him about the escape of several of his negro servants to the mountains. The Indians promised their help in this and any other search; but as they seldom seem to have succeeded, it is probable that their sympathy was with the fugitives.²⁹ Again Governor Burnett demanded the restoration of a certain Indian slave whom they had kidnapped from the English. The Indians acknowledged the fact, but they said that he was then sold to others, and nothing further could be done.³⁰

Canada even in these early times seems also to have been a haven for fugitives. In 1705 New York passed an act, which was renewed in 1715, to prevent slaves running away from frontier towns like Albany to Canada, because it was of great importance, they said, in time of war, "that no Intelligence be carried from the said city and county to the French in Canada."³¹

During all this time the Southern colonies, especially the Carolinas and Georgia, were also making many complaints in regard to the difficulty they had in recovering the fugitives, both Indian and negro, who were escaping in large numbers into Florida. There, among the Creek Indians and the Spanish at St. Augustine, they easily found refuge.³² This difficulty was, however, not remedied in colonial times, but continued long after the formation of the Federal Union, and in fact until the close of the Seminole war, in 1845.

Intercolonial Cases.

§9. Intercolonial cases.—When, as was often the case, no agreement upon the return of fugitives had been arranged between the colonies, the rendition of a slave depended wholly upon the state of feeling existing between the two peoples, and sometimes became an important question. Between the New England colonies no cases have been found recorded, although we infer that there must have been reason for the insertion of a fugitive slave clause in the Articles of Confederation of 1643.³³

Of other early cases one of the most interesting is the escape from Virginia of four Englishmen belonging to the class of bound servants. They rowed in a small boat up the coast as far as Cape May, where they landed.³⁴ They soon found themselves objects of suspicion with the people, and, as was a common practice, took refuge among the Indians. About a year afterward their masters tracked them to their place of refuge, and captured two of them, but the others were again beyond reach. The Indians, who evidently did not always befriend runaways, had just sold one of them, William Browne, to a Swede, and Browne, learning of his former master's appearance, had found opportunity to escape. The fourth of the fugitives was still among the Mantas, and could not be secured. Of the two recaptured, one was returned without trouble, but the other, Turc, who had just entered the service of a certain Pieter Aldrich, resisted his captors. A struggle took place upon the boat in which they were carrying him away. After wounding three of his guards, he succeeded in making his escape, only to be recaptured almost immediately. When tried for the deed at New Amsterdam, he received a death sentence.³⁵ In this case, one of the most complete in detail left to us, may be found, in the incidents of escape, pursuit, resistance, and final rendition, all the features of the later fugitive slave cases. It is also an example wherein the laws of the period, which required the rendition of a bound white man in the same manner as a negro slave, were strictly carried out: and in the diverse fates of the four men we find instances probably typical of the fortunes of most fugitives of the time.

§10. International relations.—The proximity of the French, Spanish, and Dutch settlements led to escapes from the colonies of one power into those of another. All were slaveholding communities, and there was no disposition to shield a slave because his lot was a hard one; but the distrust and enmity between neighboring colonies owing allegiance to different sovereigns caused such escapes to lead to petty quarrels. There was no system of extradition treaties; in fact, there was as yet little international law. Fugitives were demanded as an act of comity, and sometimes their delivery was refused. It was hardly a subject on which the home governments bestirred themselves. The colonies were left to make their own agreements, or to settle their own disagreements.

International Cases.

§11. International cases.—Thus far only those cases have been noticed which arose within and between colonies of the same nation. Let us now consider a very early case of disagreement between colonies of different nations, which occurred in 1646. The commissioners of the United Colonies made complaint to the Governor of New Netherlands that his Dutch agent at Hartford was harboring one of their Indian slaves. Soon after, Governor Stuyvesant was refused the return of some of his runaway servants from New Haven. Thereupon the angry Lords of the West India Company issued a proclamation commanding that there should be no rendition of fugitive slaves to New Haven. This provision continued in effect until Governor Elton sent back some of the fugitives to New Netherlands. It was then annulled, and a mutual agreement to return the runaways was entered into by the United Colonies and the Dutch.³⁶ Governor John Winthrop, in his History of New England, refers to the case, and says that Massachusetts Bay endeavored to bring about a reconciliation, and wrote to the Governor of New Netherlands intimating to him that "at their request he might send back the fugitives without prejudice to their right or reputation."³⁷

Maryland also found difficulty, from the readiness with which her servants could flee north to New Netherlands. In the State Archives may be found a letter sent by the authorities to the Governor of New Netherlands, as follows:—

"Sir,—Some servants being lately fledd out of this colony, into yours, as is supposed, we could not promise ourselves from you that justice & faire correspondence betweene the two governments so neerly bordering & which are shortly like to be nearer neighbors in delaware bay, as to hope that vpon the receiving of these Outres & the demand of the parties interessted you will remand to us all such apprentice servants as are or shall run out of this government into yours; and will compell such other persons, as shall flie to you without a passe, being indebted or otherwise obnoxious to the justice of this place, to make such satisfaction to the parties endamaged by their unlawful departure, upon their complaints and proofe thereof, as you shall find justice to require. And you may promise yourself the like helpe and concurrence from this governm't in that or any other thing as shalbe in the power of it: And so we bid you heartilly farewell&rest.

"To the hon'ble the Governor of the New Netherlands."³⁸