Note 96 — REPLY TO ASSAILANTS:

The following, from the Congressional Globe (33d Cong. 1st Sess., Appendix, p. 234), will show the spirit of Mr. Butler's remarks, on the occasion referred to.

"Mr. Butler. ... I have said, that, before the adoption of the Missouri Compromise, even the Northern States were not so very kind and philanthropic towards this race, which is now under the peculiar care of the Senator from Massachusetts, as he would represent. I have before me a statute of that State, which I ask my friend from Alabama [Mr. C. C. Clay], who sits beside me, to read."

[Here Mr. Clay read from the Act in question (withholding the title, "An Act for suppressing and punishing of Rogues, Vagabonds, Common Beggars, and other Idle, Disorderly, and Lewd Persons") a section prohibiting the tarrying of vagrant negroes in the State longer than two months, on pain, in case of complaint, and continuance after due warning, of being "whipped not exceeding ten stripes, and ordered to depart out of the Commonwealth within ten days; and if he or she shall not so depart, the same process to be had and punishment inflicted, and so toties quoties."]

"Mr. Broadhead. What is the date of that statute?

"Mr. Butler. Seventeen hundred and eighty-eight; and it remained on the statute-book in full force until 1823, until after the adoption of the Missouri Compromise. I will call it the Toties Quoties Act. The negroes were to be whipped every time they happened to get to Boston, or any other place in Massachusetts. That is a specimen of statutory philanthropy at least."

To this Mr. Sumner replied at once:—

"The Senator from South Carolina is so jealous of the honor of his own State, that he will pardon me, if I interrupt him for one moment, merely to explain the offensive statute to which he has referred. I have nothing to say in vindication of it: I simply desire that it should be understood. This statute, which bears date 1788, anterior to the National Government, was applicable only to Africans or negroes not citizens of some one of the United States; and, according to contemporary evidence, it was intended to protect the Commonwealth against the vagabondage of fugitive slaves. But I do not vindicate the statute; I only explain it; and I add, that it has long since been banished from the statute-book."

There is a Report to the Massachusetts Legislature by Theodore Lyman, Jr., as Chairman of a Committee "to report a Bill concerning the Admission into this State of Free Negroes and Mulattoes," dated January 16, 1822, which confirms the position of Mr. Sumner. After a few preliminary remarks, it is said:—

"The Committee have already found in the statute-books of this Commonwealth a law, passed in 1788, regulating the residence in this State of certain persons of color. They believe that this law has never been enforced, and, ineffectual as it has proved, they would never have been the authors of placing among the statutes a law so arbitrary in its principle, and in its operation so little accordant with the institutions, feelings, and practices of the people of this Commonwealth."

The Report then goes into a history of the public acts and proceedings in relation to colored persons in Massachusetts, from the earliest colonial times down to the date of the enactment, in order to show the spirit of the people towards this class, and concludes with observations like the following:—

"The feelings of the people disclosed since the year 1760 in the votes of towns and in the verdicts of juries, ... the fact that there is no law at present in force which makes a distinction between white and black persons, ... the same law which allows justices to expel blacks from the State after a certain notice expressly recognizing the right of blacks to become citizens (a law, the constitutionality of which has been called in question, and which it is well known was passed on the same day as the Abolition Act of March, 1788, in order to prevent the State from being overrun with runaway slaves),—blacks having the same public provisions for education, and the same public support in case of sickness and poverty,—many blacks before and during the Revolution having obtained their freedom by a legal process, and, as the spirit of the Constitution of this State abrogates all exclusive laws, thereby becoming invested with all the rights of freemen, and with a capability of becoming freeholders, ... and, above all, the construction given to the first principle in the Declaration of Rights at the time of the adoption of this Constitution, both in the public mind and in the courts of law,—clearly manifest and demonstrate that the people of this Commonwealth have always believed negroes and mulattoes to possess the same right and capability to become citizens as white persons."