All we say to America is, “Be true to what you said on paper.”
–Dr. Martin Luther King Jr. (April 3, 1968)
Our nation began with what is and will ever remain one of the most eloquent pronouncements of natural right ever uttered:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
The Declaration of Independence recognized that each individual, as a bearer of the imago dei, possesses fundamental freedoms of which no other individual may rightfully deprive them.
The Constitution, however, which would come over a decade later, failed to give force of law to this principle. By making room for slavery–euphemistically dodging the issue by referring to slaves as “other Persons,” “such Persons,” and “Person[s] held to Service or Labour”–the Framers made what would prove to be a Faustian bargain, one that many of the Founders knew was morally wrong but to which most acquiesced in order to bring the Union into existence.
That bargain, however, could not erase the law of nature, a law taking priority over positive law–if not in practice, than at least in principle. As Chief Justice Marshall wrote in 1825 in the case of The Antelope, slavery was still “contrary to the law of nature” even if sanctioned by the law of nations. “[E]very man,” after all, “has a natural right to the fruits of his own labor,” and “no other person can rightfully deprive him of those fruits and appropriate them against his will.”
The good news about the U.S. Constitution is that, insofar as it delegated only particular enumerated powers to the newly created Federal Government, it left individual states free to act in the broad expanse that the Constitution left to them. Among those “happy incidents of the federal system” Justice Brandeis once spoke of, then, is the fact that, while the Federal Constitution may have left room for slavery, individual states did not have to follow suit. Each member of the Union remained free, by and large, to follow the dictates of the natural law to their logical conclusion. The institution of slavery stood in fundamental contradiction to the proposition that, in this world, “all men are created equal.” States did not have to tolerate this contradiction.
In 1780, John Adams drafted what would become in time the world’s oldest functioning written constitution–no, not the U.S. Constitution but the Constitution of the Commonwealth of Massachusetts. Part the First of that document began with “A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts.” The First Article of that Declaration pronounced, in language that should sound familiar:
All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
Massachusetts, in other words, took more seriously than the Federal Government the first principle upon which the nation was founded, and it did so by placing it at the very beginning of its Constitution.
Time would tell whether Massachusetts would live up to these lofty words. It did not take long for Massachusetts to do so. Thank God for Elizabeth Freeman and Quock Walker.
Elizabeth Freeman, born sometime in the mid-1700s, was “a remarkable woman of unmixed African race,” who was known variously as “Betty,” “Mammy Bet,” and “Mum-Bett.” She happened to be slave to one John Ashley of Sheffield, Massachusetts. But Freeman’s “character was composed of . . . strong elements. Action was the law of her nature, and . . . she felt servitude intolerable.” Shortly after the Massachusetts Constitution was enacted, Freeman “chanced at the village ‘meeting house’ in Sheffield, to hear [it] read.” Hearing those words from Article One of Part the First, Freeman knew something was amiss. She went the next day to Theodore Sedgwick, then just starting his career in law (his career would be a remarkable one, going from U.S. Representative, to U.S. Senator, to Speaker of the U.S. House of Representatives, to Justice of the Supreme Judicial Court of Massachusetts). Freeman said to Sedgwick, “Sir, I heard that paper read yesterday that says ‘all men are born equal, and that every man has a right to freedom.’ I am not a dumb critter; won’t the law give me my freedom?”
Sedgwick knew she was right. So began the case of Brom & Bett v. John Ashley, Esq. Sedgwick argued on her behalf and in defense of her liberty, seeking a writ of replevin against Ashley for the recovery of Bett and Brom, who were not Ashley’s legitimate property per the Massachusetts Constitution. Ashley refused, and the case went to trial. On August 22, 1781, a jury in Great Barrington, Massachusetts, rendered a verdict for Freeman declaring her free.
Concurrently in Central Massachusetts, Mr. Quock Walker, a former slave to one Nathaniel Jennison, had sued his former master for assault and battery after Jennison tracked Walker down working at a nearby farm and beat him as punishment. Walker’s argument, that slavery was contrary both to the Bible and to the newly-enacted Massachusetts Constitution, convinced a Worcester jury to rule in his favor.
The Commonwealth also brought suit against Jennison for the assault on Walker. This case would make its way before William Cushing, then Chief Justice of the Supreme Judicial Court of Massachusetts (more on this forgotten founder here). Chief Justice Cushing charged the jury in that case with the following instruction:
[T]he framers of our constitution of government . . . declare[d] – that all men are born free and equal; and that every subject is entitled to liberty, and to have it guarded by the laws as well as his life and property. In short, without resorting to implication in constructing the constitution, slavery is in my judgment as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence. The court are therefore fully of the opinion that perpetual servitude can no longer be tolerated in our government, and that liberty can only be forfeited by some criminal conduct or relinquished by personal consent or contract.
In this way, by giving full credence and force of law to the principles of the Declaration of Independence, Massachusetts effectively ended the institution of slavery.
Later, Chief Justice Parsons, writing for the Supreme Judicial Court in the 1808 case Winchendon v. Hatfield, would recognize that while “[s]lavery was introduced into the country soon after its first settlement,” nevertheless, “in the first action involving the right of the master, which came before the Supreme Judicial Court, after the establishment of the constitution, the judges declared, that, by virtue of the first article of the declaration of rights, slavery in this state was no more.” 4 Mass. 123, 127-28 (1808).
Some time later still, Chief Justice Shaw, writing for the SJC, would address “whether a citizen of any one of the United States, where negro slavery is established by law, coming into this State . . . who brings a slave with him . . . may restrain such slave of his liberty during his continuance here . . . .” Commonwealth v. Aves, 35 Mass. 193, 207 (1836). Chief Justice Shaw wrote:
It is now to be considered as an established rule, that by the constitution and laws of this Commonwealth, before the adoption of the constitution of the United States, in 1789, slavery was abolished, as being contrary to the principles of justice, and of nature, and repugnant to the provisions of the declaration of rights, which is a component part of the constitution of the State.
Id. at 208. “[B]y the constitution adopted in 1780, slavery was abolished in Massachusetts, upon the ground that it is contrary to natural right and the plaint principles of justice.” Id. at 210. Of the first article of Part the First of the Massachusetts Constitution, Chief Justice Shaw commented that “[i]t would be difficult to select words more precisely adapted to the abolition of negro slavery.” Id. In light of this and other principles, the Court concluded that “a slave brought here becomes free,” being “entitled to the protection of our laws.” Id. at 218.
In 1856, just four-and-a-half years before the start of the Civil War and just a few months before the infamous Dred Scott decision, the Supreme Judicial Court would once again write, in a case involving a contract for an indefinite form of servitude:
Such a contract, it is scarcely necessary to say, is against the policy of our institutions and laws. If such a sale of service could be lawfully made for five years, it might, from the same reasons, for ten, and so for the term of one’s life.The door would thus be opened for a species of servitude, inconsistent with the first and fundamental article of our Declaration of Rights, which, proprio vigore, not only abolished every vestige of slavery then existing in the Commonwealth, but rendered every form of it thereafter legally impossible. That article has always been regarded not simply as the declaration of an abstract principle, but as having the active force and conclusive authority of law. If the contract relied upon by the plaintiff was valid where it was made, of which there is no evidence, it would lose its force when the subject of it was brought within the Commonwealth.
Parsons v. Trask, 73 Mass. 473, 478 (1856).
One can only wonder what might have happened (or what might have been averted) had the nation as a whole given full force to that first principle upon which the United States of America was founded: “all men are created equal.”
[Pictured: The modern Supreme Judicial Court of Massachusetts]