It seems that by the Fundamental Laws, adopted by the people 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” on the slavery question.  It has been brought out “to point a moral and adorn a tale” by the proud friends of the Commonwealth; but the law quoted above against “man-stealing,” the language of the “protest,” the statute on “bond servitude,” and the practices of the colonists for many years afterwards, prove that many have gloried, but not according to the truth.[296] When it came to the question of damages, the court said:  “For the negars (they being none of his, but stolen) we thinke meete to allow nothing."[297]