"Let justice be done though the heavens fall!" : emancipation cases in the early American Republic, 1781-1806

In late eighteenth century Massachusetts, a black slave, Quock Walker, sued for his freedom, and won. In 1783, in Commonwealth v. Jennison, the dénouement of a series of cases which led to the recognition of Walker's freedom, Judge William J. Cushing of Massachusetts' Supreme Judicial Court insisted that slavery had been abolished in the Bay State by the assertion in Massachusetts' Declaration of Rights that: "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;...."

Just over twenty years later, in the 1806 case of Hudgins v. Wrights in Virginia, Chancellor George Wythe, a signer of the Declaration of Independence, employed logic similar to that which had been articulated by Cushing; Wythe asserted that Section 1 of the Virginia Bill of Rights created a generic presumption of freedom for all people as it announced (in language strikingly parallel to that which Cushing cited in the Massachusetts Declaration of Rights): "That all men are by nature equally free and independent, and have certain inalienable rights,...namely the enjoyment of life and liberty...."

That same year, one of Wythe's former law students repudiated his mentor's reasoningWriting for the majority of the Virginia Supreme Court, Judge St. George Tucker stated directly, "I do not concur with the Chancellor in his reasoning on the operation of the first clause of the Bill of Rights, which was notoriously framed with a cautious eye to this subject [of slavery]...."

The central question with which the present researcher has grappled in his thesis is this: Why, given apparently-relevant, significant similarities in both the cases themselves, and in the respective states' constitutional declarations, was the logic which the judiciary ultimately accepted in the 1806 case in Virginia of Hudgins v. Wrights--as touching upon the significance of recognition of natural rights in the state's constitution--so dissimilar from that which ultimately prevailed in the Quock Walker cases in Massachusetts, as resolved in 1783? In the wake of careful considerations of the variegated natural law tradition concerning slavery, the character of constitutionalism during the era of the early American republic, and the Quock Walker cases and Hudgins v. Wrights considered on their own terms, the present researcher has concluded that Judges Cushing and Tucker both formally justified their decisions on "interpretivist" consitutionalist grounds, and that the apparent discrepancy in their logic may have resulted from the subtle influence of differing zeitgeist in the two states and eras where slavery was concerned. Cushing may have at least deferred to virtually hegemonic public opinion on the subject in Massachusetts, while Tucker, in Virginia, concurred with the fears of fellow slave-holding elites.