Vermont's 1777 slavery ban had a complicated reality

Anthony was 8½ years old in 1790 when Jotham White of Springfield, Vt., sold him to Oliver Hastings of Charlestown, N.H., for 35 pounds "in silver money."
http://www.burlingtonfreepress.com/article/20140402/NEWS02/304020006/History-of-slavery-in-early-Vermont-after-ban-is-complicated

Vermont's 1777 slavery ban had a complicated reality Tim Johnson, The Burlington (Vt.) Free Press April 1, 2014 Harvey Amani Whitfield, associate professor of history at the University of Vermont, has written a book on slavery in Vermont. He holds a 1783 bill of sale for a slave named Rose at UVM's Special Collections in Burlington on Monday, March 24, 2014. / GLENN RUSSELL/FREE PRESS The Burlington (Vt.) Free Press) BURLINGTON, Vt. — Vermont was the first of the former British colonies to ban slavery — it was part of the state's constitution adopted in 1777 — but in reality some wealthy landowners continued to own slaves into the 1800s. In 1802, a quarter century after Vermont banned adult slavery, the state's Supreme Court heard an appeal of a lawsuit brought by the Windsor Board of Selectmen against one of the town's distinguished residents. The suit pertained to a slave named Dinah, who had served the defendant for 17 years. The defendant was Stephen Jacob, who happened to be one of the court's three justices. He recused himself from the case. "The legal reality of abolishing slavery did not always reflect social reality," Harvey Amani Whitfield, associate professor of history at the University of Vermont here, writes in a newly published monograph. "The end of Vermont slavery was contested, contingent, complicated and messy. "Vermont made steps toward abolition, but slaveholding, kidnapping of free blacks, and child slavery continued until the early 19th century," he wrote. "Those who continued to own slaves were among the most respectable inhabitants of the state." STORY: New York Times corrects '12 Years a Slave' typos from 1853 STORY: '12 Years a Slave' is a best seller — and a textbook The Problem of Slavery in Early Vermont, 1777-1810, published by the Vermont Historical Society, includes an essay by Whitfield and 31 primary source documents including bills of sale, runaway slave advertisements, probate records and town records identifying slaves. The cover features a reproduction of a 1784 letter by Levi Allen, brother of Ethan, to a New Yorker who had sold him a slave named Prince. "N.B. there appears to be Some disorder in the Right Eye of the Negro fellow Prince I bot. of you which has been of Some time Standing," Levi Allen wrote at the bottom of the page. "I hope it will not prove the loss of the Eye." Whitfield is quick to acknowledge the historical significance of Vermont's constitutional slavery ban. "This is groundbreaking stuff," he said in an interview. "We have to give the founders in Vermont credit. There's no denying that." "I'm not trying to flip the story of freedom, equality and abolitionism on its head," he said. "What I'm trying to make an argument for is more nuance." Not so simple Many historians have accepted that Vermont "immediately" abolished slavery in 1777, Whitfield writes. "Numerous studies portray the state's abolition of slavery as an unproblematic triumph of emancipation." Chapter 1 affirms that "all men" have "certain natural, inherent and unalienable Rights," and that no adult without consent "ought to be holden by law to serve any person as a Servant, slave or apprentice." A closer look at the 1777 constitution shows a reality that's not so simple, even on paper. The slavery ban had loopholes. It applied to males age 21 and older and females 18 and older, not to children. Why did the constitution's drafters permit child slavery to continue? No one knows for sure. One theory is that they wanted to allow apprenticeships, but this was not stated explicitly as it was later in other states with similar provisions. Another possibility is that child slaves were seen a compensation for those who would have to give up their adult slaves. In any case, child slavery remained legal in Vermont and de facto adult slavery continued, Whitfield writes, "under the guise of such terms as 'servant.' " Whitfield notes the constitution's use of "ought," instead of the "more declarative" word "shall," which was the operative word in Pennsylvania's 1780 Gradual Abolition Act. "Those who drafted Vermont's constitution expressed more of a wish for than an actual prohibition of black bondage," Whitfield writes. In 1778, apparently recognizing that the constitution needed clarification, the legislature resolved to appoint a committee "to prepare a bill, respecting the freedom of Slaves," but it's not clear if the committee met, and no legislation was introduced. For nine years after the constitution was adopted, legislators established no means to enforce the slavery ban, and no fines were imposed. In fact, free blacks were still being kidnapped and sold out of state — as evidenced by the state's Sale and Transportation Act of 1786, which which set a penalty of 100 pounds for anyone convicted of conveying "any subject out of this State with intent to hold or sell such person as a Slave." Apparently, the sale of black people out of state continued even after that. New York slaveholders had reason to believe Vermonters would seize their runaways and send them back. Whitfield's documents include several runaway slave advertisements published in the Vermont Gazette as late as 1795 offering rewards for their capture. Not until 1806 did Vermont legislators stepped up to enforce the ban on out-of-state sale with an "Act to Prevent Kidnapping," which established tougher penalties, among them public whipping and imprisonment for up to seven years. Ethan Allen's household The number of slaves and slaveholders in early Vermont remains unclear. The black population in 1791 was about 270, but the census of that year listed 16 as slaves. Others were listed as "free" although some are known from other sources to have been slaves. A portion of Vermont's 1806 Prevention of Kidnapping Act, which was supposed to prevent blacks from being kidnapped into slavery.(Photo: Emily McManamy, The Burlington (Vt.) Free Press) Raymond Zirblis, a historian who teaches at Norwich University in Northfield, Vt., and who wrote the "Slavery" entry in the "Vermont Encyclopedia," said a "reasonable working estimate" would be 150 slaves and 55 slaveholders over a period spanning several decades. Windham County, where Brattleboro is now the largest town, had the largest black population in 1791, 58. According to the census, two white households in that county included 10 African Americans each, which leads Whitfield to wonder what their status was: indentured servants, free laborers, or slaves? The answer to this and many other questions awaits further research. When Ethan Allen died in February 1789 on a sled loaded with hay returning from South Hero, Vt., on Lake Champlain, he was in the company of Newport, a black farmhand. A young black woman, Eliza, and her mother also were believed to be part of the Allen household. Were they slaves or not? John Duffy, editor of the Allen family papers and co-author of a forthcoming book on Ethan Allen's legacy, raises the question but has been unable to find any hard evidence either way. Allen and other political leaders distinguished between settlers fighting virtuously for their liberty and slaves who, they believed, passively and dishonorably accepted their lot, according to Whitfield. Allen's daughter Lucy Allen Hitchcock, 1767-1842, did own slaves. Hitchcock moved to Alabama, and when she returned to Burlington, Vt., in 1835 she brought two slaves, Lavinia, 35, and Lavinia's 12-year-old son, according to Duffy. They worked for Hitchcock in Burlington for six years until Lavinia's husband paid a manumission fee to free them. Burlington's residents apparently looked the other way. Noteworthy cases As Whitfield sifted through Vermont records, the case of a boy known only as Anthony especially struck him. Slaves were typically referred to in legal documents and correspondence by their single first names. Anthony was 8½ years old in 1790 when Jotham White of Springfield, Vt., sold him to Oliver Hastings of Charlestown, N.H., for 35 pounds "in silver money." The sale was recorded in a town history of Springfield, but the original bill of sale has been lost. Though no person can hold a slave de jure by our constitution, yet there may exist among us a slave de facto. - Little is known of Anthony, where he came from, who his parents were, and Whitfield said he's tempted to try to unearth more about the boy's story. What is known is that White's sale of Anthony to a man across the state line occurred four years after the act forbidding such sales. "In the bill of sale, White claimed that Hastings would have to free Anthony when the 'slave' reached 21 years of age," Whitfield writes. "How such a provision would be enforced is not clear." In any case, Anthony was not freed. Whitfield found a record in Quebec that Hastings sold an Anthony (or Antoine) to a resident of Boucherville, Quebec, for 90 bushels of wheat. Seven years before he sold Anthony, White sold Dinah, who was then about 30 years old, to Stephen Jacob, the eventual Supreme Court justice. Dinah lived with Jacob performing household duties until some time in 1800 when she became "infirm, sick and blind" and he "discarded" her, according to plaintiffs in the court proceeding. Dinah became dependent on public assistance from the town of Windsor. The select board sued Jacob, contending that he, not the town, should be responsible for her expenses. The county court heard the case in March 1801 and ruled in favor of Jacob. The select board appealed to the Vermont Supreme Court. With Jacob sitting out, the court's two other justices, chief Judge Jonathan Robinson and Royall Tyler, heard the case. Tyler later wrote the opinion. The case turned on a motion from the select board's lawyer to introduce Dinah's bill of sale into evidence. Jacob's lawyer objected because "we contend that no person can be held in slavery in this state; and the showing of a bill of sale can be no evidence that the unfortunate being supposed to be transferred by it as a human chattel, is a slave," according to the court record. In other words, the defense said because adult slavery was prohibited, Dinah could not have been a slave. "That though no person can hold a slave de jure by our constitution, yet there may exist among us a slave de facto," the town's lawyer countered. He argued that Dinah in fact was a slave, having spent "the vigor of her life" in Jacob's service. Writing for the court, Tyler ruled that the bill of sale could not be admitted as evidence because it was effectively void by virtue of the state's constitutional slavery ban. The court found in Jacob's favor. Dinah apparently continued to live in Windsor until her death several years later. "The judges certainly knew that their fellow justice had a slave in his household," Whitfield writes. "They seemed unwilling to admit that one of their own had so brazenly broken the law and defied the constitution."