Ben Railton on the Freeman and Walker Cases

Hi, my name is Laura Tavares. I'm on the senior program staff at Facing History and Ourselves. And today, we're speaking with Ben Railton, professor of English and American Studies at Fitchburg State University in Massachusetts. We're talking with Ben about a really fundamental question. What makes democracy work? And in response to that question, Ben told me a really amazing story from the very earliest days of American democracy.

So, Ben, I'd like to start talking with you by asking how would you define democracy?

At its heart, I would say that democracy means a society in which every inhabitant, every participant, which is every inhabitant-- we are all participants in our democracy and our society-- has a voice and a role to play in that society, in the functioning of it, in the application of its laws and values, in the communal civic life of that society.

To me, that's what should define a democracy. And, again, very frequently throughout our history, in all sorts of ways, we try to exclude communities from that. And then again, I think we see these instances again and again of individuals and communities arguing for their own inclusion and making the case for that inclusion despite those exclusionary laws and practices

Ben, now, I'd like to ask you to tell us a story that has given you some important insight into this question, what makes democracy work?

I wanted to talk about two individuals who took ownership of the law and of national ideals, both of which, I think, our laws and our ideals can feel at times like they are above us, like they own us or like we are servants of them; in some way, they are larger than the individuals in a nation and a community. But I think these two individuals reflect the opposite of that. They reflect that, in fact, we are the owners of these laws and ideals. They belong to us. And we can and should figure out how to make them serve our lives and our needs and our communities rather than the other way around.

And so these two were two slaves in Massachusetts in the Revolutionary Period, 1780, and after when slavery was still legal in Massachusetts, as it was in every colony that were about to become states. And these two slaves in individual ways unrelated to each other at first both use the ideals of the Declaration of Independence and the law in the Massachusetts Constitution of 1780, which had codified those ideals into a form of law to, argue for their own freedom and for the abolition of slavery both.

So the first in chronology is a woman named Elizabeth Freeman, Mum Bett as she is known in the court documents of the era, who in 1780 hears that Massachusetts Constitution read aloud and hears that all men are born free and equal. That's the opening line of the opening article, the first law.

And Elizabeth Freeman hears this read, soon thereafter approaches a lawyer, a local lawyer named Theodore Sedgwick to ask if she could be represented to sue for her freedom, arguing that that law applies to all residents of Massachusetts and that she should not be legally a slave under that law. She said, "I am no dumb critter. I am a-- I am a person in Massachusetts."

And at the same time, in another part of Massachusetts, there's a slave named Quock Walker who has run away from his own master. He had been promised freedom by a prior master apparently and then denied that when his prior master died and his mistress remarried. So decides to run away and to argue for his own freedom as well.

And both of them end up coming to court cases in 1781. Quock Walker in two separate civil court decisions is granted his freedom based on these arguments, that the Declaration of Sentiments and the 1780 Constitution's laws make slavery illegal and impossible in Massachusetts.

And then a month later, July 1781, the case representing Freeman and a fellow slave named Brom-- so the case is called Brom and Bett v Ashley-- also comes to a county court, which makes the same decision, renders the same decision. And then both of those become part of a Massachusetts State Supreme Court decision two months later in September 1781. Commonwealth versus Jennison is the name of that decision because Jennison was Quock Walker's master. And in that Supreme Court ruling, also upholding Quock Walker's case and reaffirming that slavery should be illegal, the Massachusetts Chief Justice, William Cushing argues both that the national ideals and the law are on Quock Walker's side.

So he says first at that decision, "A different idea has taken place with the people of America than what had been the case in England or in prior European conversations," and follows that to say, "And upon this ground of that different idea, our constitution of government by which the people of this commonwealth have solemnly bound themselves starts out declaring that all men are born free and equal," citing that article explicitly.

And so these decisions which end up leading directly to the abolition of slavery in Massachusetts, at the most broad level, the most communal and legal level start with these individuals. They start with Quock Walker and Mum Bett Freeman, Elizabeth Freeman separately. And then as a small community and in conversation with the abolitionist community that has really begun to develop in Massachusetts leads to the most broad civic change, the most broad legal change in the state that is the abolition of slavery.

So to me, those examples are really the heart of what I would argue makes democracy work because it is about seeing our laws and our national images and narratives and ideals as our own and figuring out then how do I make the best case for my own identity and my own equality within that system rather than, again, seeing myself as defined by it or affected by it from the outside.

So the Constitution of Massachusetts is never legally amended to abolish slavery. But what happens instead-- and I think there's an optimistic way to see it as a follow-up to the Walker and Freeman cases-- is that slavery is socially abolished in Massachusetts after these decisions in a variety of ways, both voluntary and to some degree pressured slave owners in Massachusetts free their slaves. And by the 1790 census in Massachusetts, there are no slaves on that document when there were 4,500 in 1780. And it doesn't happen in a legal way.

So it would have, of course, been possible for it to return and for the fight to continue as it did throughout the nation. And I would definitely highlight, again, just the need for every individual to think about that question of, how can I see our laws and our narratives as mine to make use of for my own equality and identity rather than as affecting me from the outside or being, again, a defining force on me?

So in this conversation, Ben gave us some really amazing insight into how people find agency and use the law to articulate and claim their own rights. I wonder, how do you see people applying this strategy in our world today?