in 1641,
the first two offences were punishable by death, and all of them
"capitall, by the law of God." The court doubted its jurisdiction over
crimes committed on the distant coast of Guinea. But article
ninety-one of "The Body of Liberties" determined who were lawful
slaves,--those who sold themselves or were sold, "lawful captives
taken in just wares," and those "judged thereto by authority." Had the
unfortunate Negroes been purchased, there was no law in Massachusetts
to free them from their owners; but having been kidnapped, unlawfully
obtained, the court felt that it was its plain duty to bear witness
against the "sin of man-stealing." For, in the laws adopted in 1641,
among the "Capital Laws," at the latter part of article ninety-four is
the following: "If any man stealeth a man, or mankind, he shall surely
be put to death."[293] There is a marginal reference to Exod. xxi. 16.
Dr. Moore does not refer to this in his elaborate discussion of
statute on "bond slavery." And Winthrop says that the magistrates
decided that the Negroes, "having been procured not honestly by
purchase, but by the unlawful act of kidnaping," should be returned to
their native country. That there was a criminal code in the colony,
there can be no doubt; but we have searched for it in vain.
Hildreth[294] says it was printed in 1649, but that there is now no
copy extant.

The court issued an order about the return of the kidnapped Negroes,
which we will give in full, on account of its historical value, and
because of the difference of opinion concerning it.

"The general court conceiving themselves bound by the first
opportunity to bear witness against the heinous, and crying
sin of man-stealing, as also to prescribe such timely
redress for what is past, and such a law for the future, as
may sufficiently deter all others belonging to us to have to
do in such vile and odious courses, justly abhorred of all
good and just men, do order that the negro interpreter with
others unlawfully taken, be by the first opportunity at the
charge of the country for the present, sent to his native
country (Guinea) and a letter with him of the indignation of
the court thereabouts, and justice thereof, desiring our
honored governor would please put this order in
execution."[295]

This "protest against man-stealing" has adorned and flavored many an
oration on the "position of Massachusetts" o