Note 680 — Chapter XII · OBLIGATORY CIVIL MARRIAGE IN THE NEW ENGLAND COLONIES (continued 2)

See Justice Gray's note to the case of Oliver v. Sale: Quincy's Reports, 29. The authorities there cited are misleading and do not establish the assertions quoted. The well-known apology for Massachusetts slavery by Nathan Dane in his Abridgment, II, 413, 426, 427, is equally unsupported by the facts. The same view as that of Gray is taken by Chief Justice Dana in Littleton v. Tuttle (1796): 4 Mass. Reports, 128, note; by Chief Justice Shaw in Commonwealth v. Aves: 18 Pickering's Reports, 208, 209; and it is repeated in Cushing's Reports, 410. On the other hand, in Winchendon v. Hatfield: 4 Mass. Reports (1806), 123, Chief Justice Parsons correctly says "slavery was introduced" in Massachusetts "soon after its first settlement, and was tolerated until the ratification of the present constitution" in 1780. "The issue of the female slave, according to the maxim of the civil law, was the property of her master." The same opinion is held in Perkins, Town Treasurer of Topsfield v. Emerson (1799): Dane's Abridgment, II, 412; and by Chief Justice Parker in Andover v. Canton (1816): 13 Mass. Reports, 551, 552. In 1865 the errors of Gray, Dane, Webster, and others were fully exposed by Moore, Notes on the History of Slavery in Mass., 10 ff., 22 ff., 94 ff., 98 ff.; yet it is curious to see Bishop, Marriage, Divorce, and Separation (Chicago, 1891), I, 179 n. 1, 282, still accepting Gray's dictum as authority.