We left the Walker and Freeman cases bringing us almost back to where we started. We know that Quock Walker after some travails and Elizabeth Freemen after somewhat less legal drama, won their personal freedom. We know that no enslaved people remained in Massachusetts as of the end of the 1780s, since none appear in the 1790 census. We also have a charge to the jury in one of the cases involving Walker that the judge viewed slavery as incompatible with the Declaration of Rights John Adams wrote for the new Massachusetts constitution…but also that such a reading would come as a shock to Adams himself and that the men who wrote and submitted the constitution to the voters did not intend to enact emancipation of any kind. The record leaves us with a muddle which generations of historians have despaired at. I think we have come near to the end of it, but let’s go just a little further in understanding just how scholars have arrived at the unsatisfying answer of “we don’t know.”
The Caldwell brothers, who sheltered Walker, received for their troubles a civil suit from Nathaniel Jennison. Jennison claimed that they had enticed Walker, who he legally enslaved, and so he should get some judgment against them for interference with his property. The jury agreed with Jennison, but the verdict did not survive an appeal. Walker also sued Jennison for the attack upon his person and brief imprisonment that resulted from his former enslaver’s effort to regain control of Walker’s life. We know that Walker’s initial arguments did not reach to the Bay State’s new constitution, rather only to a promise from his now deceased former enslaver that he would have his freedom when he turned twenty-four or twenty-five. To further add to our confusion, the two cases played out almost simultaneously in the same court. We don’t know which saw trial first.
In 1960, William O’Brien pointed out these difficulties and suggested a way to share the contradictory verdicts that Jennison rightly owned Walker as a slave, as he must to sustain his claim of enticement, and then that Walker had his rightful freedom and so Jennison assaulted him unlawfully. It might have played out that Walker’s lawyers got to the court first with the assault case, so Jennison claimed he enslaved Walker specifically as a defense against those charges. He might not have sued the Caldwells for enticement of a slave, but rather felt he had a stronger case for claiming Walker as an ordinary employee. The complaint, per O’Brien, always refers to Walker as a servant, where when Walker makes the pleas he refers to himself as wrongly a slave. When the appeals court vindicated the Caldwells in September, they might have reversed the lower court simply on the grounds that the Caldwells did not actually entice Walker. Such a verdict need not touch on Walker’s precise status, especially if Jennison didn’t raise it. Yet O’Brien admits that we have no evidence that the court ruled on those grounds or Jennison plotted such a legal strategy. The explanation fills a lacuna in the records, but we can’t mistake that for having the records.
On the other hand, maybe the court did make such a ruling. The Caldwell’s lawyer left behind a brief which might have seen use in the case which does reach to the constitutional question. It declares slavery a violation of “the law of nature” and “the law of God” which together make a higher law. The Declaration of Rights recognized that -don’t tell it’s authors- and thus slavery must end in Massachusetts. The judge in the case later told that both parties went “into the consideration of slavery for and against as far as their fancy would lead them altho not directly on the point.” Something about slavery in general got argued in the two cases, though Judge Cushing in 1798 recalled that it did not decide the case.