Footnotes:
[1] Definition of positive law: "statutory man-made law, as compared to 'natural law,' which is purportedly based on universally accepted moral principles, 'God's law,' and/or derived from nature and reason. The term 'positive law' was first used by Thomas Hobbes in Leviathan (1651)." Accessed 2020, https://dictionary.law.com/Default.aspx?selected=1552.
[2] Robert Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975), 1-35, discusses the dilemma of antislavery judges in the mid-19th century who had to decide if positive law outweighed natural law: “It is the story of earnest, well-meaning pillars of legal responsibility and of their collaboration in a system of oppression.” (p. 6) Judges could apply natural law “when no appropriate system of law provided an applicable rule for a given case.” (p.18) First, they would have to examine positive law (constitutions, statutes and “well-settled precedent”) that applied to a given case. Judges in 17th-century British and colonial courts had to use the same process.
[3] William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760-1848 (Ithaca: Cornell University Press, 1977), 1-23.
[4] The Body of Liberties, 1641, Article 91, in William Henry Whitmore, The Colonial Laws of Massachusetts Reprinted from the Edition of 1660 With Supplements to 1672 Containing Also the Body of Liberties (Boston: Rockwell and Churchill, 1890), 53. For comparison to slavery laws in other colonies, see Slavery and the Making of America.
[5] Gary B. Nash, Red, White, and Black: The Peoples of North America (Englewood Cliffs, NJ: Prentice-Hall, 1992), 74-86, on Pequot War. Winthrop’s quote in James Kendall Hosmer, ed.,Winthrop’s Journal, 1630-1649, Vol. I (NY: Charles Scribner, 1908), 227-228.
[6] Winthrop’s Journal, p. 260. This is the first recorded evidence of the arrival of enslaved people in Massachusetts. It was, however, a public undertaking, carried out by order of the colonial government of Massachusetts. Merchants or ship’s captains trading with the West Indies could have acquired enslaved people before this; they certainly did after the voyage of Desire. See Jared Ross Hardesty, Black Lives, Native Lands, White Worlds (Amherst and Boston: Bright Leaf Press, an imprint of University of Massachusetts Press, 2019), 17-24.
[7] John Gorham Palfrey, History of New England (Boston: Little, Brown, 1865), Vol. II, p. 30, Footnote 2. He cites his source as John Josselyn’s Account of Two Voyages to New England Made during the year 1638, 1663 by John Josselyn, Gentleman (originally published in London, 1672, 1675. reprinted in Boston: W. Veazie, 1865), 28.
[8] George H. Moore, Notes on the History of Slavery in Massachusetts (N.Y.: D. Appleton and Co., 1866), 7-9, quoting from Josselyn’s Account, 26.
[9] Moore, Notes on the History of Slavery in Massachusetts, 8-9. Maverick was living in Massachusetts in 1624, but Palfrey never said he owned enslaved people before 1638.
[10] Whitmore, Colonial Laws of Massachusetts...Containing Also the Body of Liberties, 53.
[11] Statistics on slave importation to New World from Trans-Atlantic Slave Trade Data Base (https://slavevoyages.org). For a brief overview of Triangular Trade, see Nash, Red, White, and Black, 144-151. For more details, see Jacob M. Price, “The Transatlantic Economy, “ in Jack P. Greene and J.R. Pole, eds., Colonial British America: Essays in the New History of the Early Modern Era (Baltimore: Johns Hopkins Press, 1984), 18-42, and Richard B. Sheridan, “The Domestic Economy,”in Greene and Pole, Colonial British America, 43-85.
[12] The Carribean colonies produced sugar, the most valuable staple product in Britain’s Trans-Atlantic economy. Sheridan, “The Domestic Economy,” 44-47 (Chesapeake), 47-53 (Caribbean), 59-62 (Pennsylvania and other Middle Colonies). Sheridan correctly points out that the “staple economy” thesis can be overstated. When the price of tobacco dropped, the Chesapeake colonies shifted to wheat production. Pennsylvania’s economy also included iron production, shipbuilding, and raw-material and household manufacturing industries.
[13] Hardesty, Black Lives, 17-23; Carl Bridenbaugh, Cities in the Wilderness: Urban Life in America, 1625-1742 (NY: Capricorn Books, 1938), 30-34, 38-39; Sheridan, “The Domestic Economy,” 55-56; James Henretta, The Evolution of American Society, 1700-1815 (Lexington, MA: D.C. Heath and Co., 1973), 78-81.
[14] In 1640, the estimated enslaved population of Massachusetts numbered 150. It increased to 295 in 1650, and 422 in 1660 (including the Maine counties of Massachusetts), in United States Census Bureau, The Statistical History of the United States from Colonial Times to the Present (NY: Basic Books, 1976), 1168
[15] Hardesty, Black Lives, 26-28; “The Slave Trade,” Massachusetts Historical Society (MHS), African Americans and the End of Slavery.
[16] Edmund S. Morgan, The Puritan Dilemma: The Story of John Winthrop (Boston: Little, Brown, 1958), 65-67.
[17] Allyn B. Forbes, ed., The Winthrop Papers (Boston: Massachusetts Historical Society, 1947), 5:38-39.
[18] On Thomas Deane employing a “Negro” cooper, see Report of the Record Commissioners of the City of Boston, 1660-1701, [Boston Town Records], (Boston: Rockwell and Churchill,1881), Vol. 7, p. 5 (September 5, 1661). On the New England economy, see Hardesty, Black Lives, 12-13. For overview of colonial labor choices, see Richard S. Dunn, “Servants and Slaves: The Recruitment and Employment of Labor,” Greene and Pole, Colonial British America, 157-194.
[19] Jared Ross Hardesty, Unfreedom: Slavery and Dependence in Eighteenth-Century Boston (NY: New York University Press, 2018), “Introduction: A World of Unfreedom,” 1-11, 12-15. Hardesty writes about slavery in 18th-century Boston but also discusses its roots in the 17th century. On servants, see Richard S. Dunn, “Servants and Slaves: The Recruitment and Employment of Labor,” in Green and Pole, Colonial British America, 157-164.
[20] “Second Voyage to Guinea” included in Richard Hakluyt, The Principal Navigation Voyages, and Discoveries of the English Nation (London, 1589), quoted in Winthrop Jordan, White Over Black: American Attitudes Toward the Negro: 1550-1812 (Chapel Hill: University of North Carolina Press, 1969), 24.
[21] Morgan, White Over Black, 4-7. Morgan cites the Bible and the works of Shakespeare and John Milton for examples of the English perception of Blackness.
[22] Hardesty, Black Lives,13-17, on “legal ambiguity of slavery.”
[23] Colossians 3:22; Leviticus 25:46; definition of "custom" in Merriam-Webster; definition of “chattel” in Legal Dictionary; Hardesty, Black Lives, pp. 4-5.
[24] Colossians 4:1; Customary rights discussed in Edmund S. Morgan, The Puritan Family: Religion and Domestic Relations in Seventeenth-Century New England (revised edition, NY: Harper and Row, 1966), Chapter IV (“Masters and Servants”); George William Van Cleve, A Slaveholder’s Union: Slavery, Politics, and the Constitution in the Early American Republic (University of Chicago Press, 2010), 24-25). On enslavers interpreting slavery as indentured servitude, see Hardesty, Unfreedom, 15-16.
[25] Records of the Governor and Company of Massachusetts Bay, Nathaniel B. Shurtleff, ed. (Boston: William White, 1854),Vol. III, 1644-1657, 267-268, 397.
[26] Dunn, “Slaves and Servants,” Colonial British America, 157-194 ( 160 on New England); Nash, Red, White, and Black, 150-151.
[27] If they followed English common law, enslaved children fathered by their master would be born free. The revised statute is in Records of the Governor and Company of Massachusetts Bay, Vol. IV, Part 2, 467, under "errartars [errata, or errors.]." Since Massachusetts never passed a law enforcing the revised 1670 statute, masters could still free enslaved people. For different interpretations of the significance of the law, see Eric M. Hanson Plass, “So Succeeded by a Kind Providence: Communities of Color in Eighteenth-Century Boston,” M.A. thesis, University of Massachusetts, Boston, 2014, 28-29; Hardesty, Black Lives, 15-16.
[28] Ch. XXXIV, An Act for the Better Discovery and More Effectual Suppressing of Unlicensed Houses, 1695, pp. 287-288; Ch. LIII, An Act Against Receiving Stolen Goods, 1698, pp. 313-314; Ch. LIV, An Act for the Inspecting and Suppressing Disorders in Licensed Houses, etc., 1698, pp. 414-316, in The Charters and General Laws of the Colony and Province of Massachusetts Bay. Published by the Massachusetts General Court committee of Hon. Nathan Dane, William Prescott, and Joseph Story, Esquires. (Boston: T.B. White, 1814).
[29] John Noble, ed., Records of the Court of Assistants of the Colony of the Massachusetts Bay, Vol. I, 1630-1692 (Boston: Suffolk County, 1901), pp. 74 (Basto), pp. 197-198 (Marja and Jack).
[30] Statistical History of the United States from Colonial Times to the Present, 1168. Gary B. Nash, The Urban Crucible: Social Change, Political Consciousness and the Origins of the American Revolution (Cambridge: Harvard University Press), 1979, writes that between 1685-1699, 1 in 9 Boston families, including merchants and artisans, owned enslaved people, 13-14, and Table 9, 401, showing the rising percentage of enslaved ownership in Boston through the mid-18th century.
[31] Hardesty, Unfreedom, Ch. 5, “Appropriating Institutions,” 136-163; Hanson Plass, “So Succeeded by a Kind Providence: Communities of Color in Eighteenth-Century Boston,” 30-37.
[32] Peter Bestes and Other Slaves Petition for Freedom, April 20, 1773, https://www.loc.gov/resource/rbpe.03701600/?st=text.