Bidwell Lore: The Warning Out List in Stockbridge, Part IV

Welcome to week 89 of Bidwell Lore! This week we finish up our series on the Warning Out List in early Stockbridge. 

In last week’s Bidwell Lore, we mentioned that Judge Cushing cited Elizabeth Freeman’s August 1781 case in the trial of a man named Quock Walker. This week, we wanted to share some more details about that story.

In April 1781, Quock Walker, a 28 year old enslaved man from Worcester, ran away from his owner, Nathaniel Jennison. Represented by prominent attorneys Levi Lincoln [1] and Caleb Strong [2], Walker brought suit against Jennison to win his freedom and obtain civil damages for assault and battery. From 1781 to 1783, the Quock Walker case moved through the courts of Massachusetts. After a jury trial, Walker won his freedom and L 50 in damages.

Jennison was tried in 1783 before a Worcester County jury sitting with the Supreme Judicial Court [3] (of Mass.) and was found guilty. The trial judge, Chief Justice William Cushing, instructed the jury:

“As to the doctrine of slavery and the right of Christians to hold Africans in perpetual servitude, and sell and treat them as we do our horses and cattle, that (it is true) has been heretofore countenanced by the Province Laws formerly, but nowhere is it expressly enacted or established. It has been a usage – a usage, which took its origin from the practice of some of the European nations, and the regulations of British government respecting the then Colonies, for the benefit of trade and wealth. But whatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea has taken place with the people of America, more favorable to the natural rights of mankind, and to that natural, innate desire of Liberty, with which Heaven (without regard to color, complexion, or shape of noses-features) has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Commonwealth have solemnly bound themselves, sets out with declaring 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 life and property – and in short is totally repugnant to the idea of being born slaves. This being the case, I think the idea of slavery is inconsistent with our own conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract.”

Walker’s case rested on the fact that his former master had promised to free him at age 25, a promise which Jennison had ignored. Cushing went even further, writing that: “there can be no such thing as perpetual servitude of a rational creature.” When the judge gave his instructions to the jury, he explicitly declared slavery incompatible with the new Constitution of Massachusetts. Although this case did not immediately emancipate every enslaved person in the state, it did mark the end of slavery as a legal practice in Massachusetts [4]

Profile painting of a man wearing a white wig, a white cravat and red, black and white judges robes
The official portrait of Supreme Court Justice William Cushing (1732-1810), Unknown artist, source Wikipedia

William Cushing (1732-1810) was one of the original five associate justices of the United States Supreme Court; confirmed by the United States Senate on September 26, 1789, he served until his death. His Supreme Court tenure of 20 years and 11 months was the longest among the court’s inaugural members. In January 1796, he was nominated by President George Washington to become the Court’s Chief Justice: though confirmed, he declined the appointment. He was the last judge in the United States to wear a full wig.

William Cushing and his wife, it turns out, were friends of Congressman Barnabas Bidwell and they visited frequently during his time in Washington City. Barnabas mentioned Judge Cushing and his wife in several letters:

Washington, Feb 9, 1806, Sunday evening, Barnabas writes: 
“On Friday Mr. Randolph [5] renewed his last year’s motion for an amendment of the Constitution, so as to render the Judges of the United States removable by the President, or rather to require him to remove them on address of both Houses. Many gentlemen, who are in favour of that principle, under some modification, think this motion ill-timed and badly modified. Since I wrote you last I have received a letter from J.G. Hunt (Mary’s cousin) describing his situation at Canandaigua to be agreeable. He has received a proposition from William and Elnathan Curtis to go into partnership with or one of them in trade. I have not heard from Cyrus Williams since I arrived in the city. The Supreme Court, which was to have opened on Monday last, was not opened until yesterday, for want of a quorum. Judge Johnson of South Carolina did not arrive until Friday evening. Judge Chase is confined at home with the gout. Judge Cushing has been so unwell, ever since his arrival, has not been able to go out yet.”

Washington, Feb. 19, 1806, Barnabas writes:
“General Miranda, concerning who you enquire, was here at the beginning of the session. When he was here it was whispered that he was in British employment, and desirous forming an expedition against the Spanish dominions in South America, lately sailed from New York, it is said on such an expedition. It has not been encouraged by our government. I had written so far when a message from the President announced. It communicated a letter from Captain Lewis [6] in the western regions. The message and documents are ordered to be printed; so that will not expect me to attempt a detail at present. Yesterday I absented myself from the House about 2 hours to attend the Supreme Court, sitting on the lower floor of this Capital. I heard the Attorney General, Breckinridge, Messrs. Harper, Key, Martin and Pinckney of Maryland. Judge Cushing has not yet been able to attend the court. I have twice drank tea with him and Mrs. Cushing, at their lodgings. I have just supported and voted for a motion to have a thousand copies of the President’s message and Capt. Lewis’ letter printed, that each member may have two or three. The motion prevailed.
          Yesterday Caesar A. Rodney, of Philadelphia, was nominated Attorney General, in the room of Mr. Breckinridge, deceased. Judge Cushing [7] and lady arrived here last week on Tuesday. Thursday evening I drank tea with them. She attends him, in quality of nurse, and keeps him alive. We have snow about 1 ½ inch deep. Several days last week were quite cold. I cannot avoid feeling some anxiety for the domestic and family concerns, particularly on the subject of wood.  Mr. Barker, I believe, has written to your mama, and enclosed one of his sermons. For he asked me if I thought it would be acceptable to her. I told him undoubtedly it would, and wished him to communicate it, which I presume he has done. Dr. Jones has written me on the subject of the course, or rather the time of the mail between N. York and Bennington. His letter I have communicated to the P.M.G. but I have not seen him since, as to know his determination on the subject. I have enclosed you one or two of the National Intelligencers, at different times, which have accidently fallen into my hands, in addition to the Gazettes. I think I have never omitted to send you a Gazette every week. Accept dear Mary, for yourself and the family the affectionate salutation of your B. Bidwell”

Portrait of Mary Gray Bidwell
Portrait of Mary Gray Bidwell by Joseph Steward, currently hanging in the Museum Parlor

Washington, February 4th, 1807, Barnabas writes:
“My dear Mary, I am sorry the school, which our children attend, is not such as we could wish it were. I feel, as deeply as you do, the importance of their education. Sally’s progress and improvement in learning and understanding have been encouraging; and I am, by no means discouraged with Marshall. The taste he has discovered for arithmetic, at so early an age, is indicative of a mind capable of research, and likely to embrace other branches of learning. Josiah’s [8] disposition to learn is unquestionable. It is undoubtedly our duty to endeavor to provide them good means of acquiring knowledge, as well as to give them what instruction we can personally. I should not feel easy, in my absence from them, if they were left in the charge of any person than yourself. Notwithstanding the disadvantages, which you mention, I feel particularly happy that they are under your care.
         I am obliged to Capt. Whiting for his kind enquiries respecting me. His situation has been frequently on my mind since I left home; and I will thank you, if an opportunity occurs, to present my cordial wishes for his convalescence and recovery. You know the esteem in which I have long held him, and my sense of his friendship, integrity and usefulness.
          I should have been glad to see Cousin Isaac B. Spring, of whom I am glad to hear you speak in such handsome terms. Mr. Fiske of Vermont once lived in the same town, and proposes to visit on his return home. Unless prevented by a multiplicity of avocations, I intend to write by him to our cousin. I say ours, for your relations are mine.
         It gives me pleasure to be informed of your intention to visit our friends in Tyringham. I wish you an agreeable tour, over the hill, and wish with all my heart I could accompany you. The cold has been severe in this place for the climate. Last night was very cold. Indeed I have slept almost all the time since I have been here in my flannel gown. I cannot avoid a degree of anxiety about your supply of wood.
         The death of Mrs. Wells I had not before heard. That family has lately been swept away in an affecting manner. We are surrounded with examples and memorials. I now wear a mourning crape for the death of Genl. Carey, a member of our House, as mentioned in my last letter. I am gratified that such friends as you mention, call on you and enquire after me. This double attention affords double satisfaction.
        Seven of us, fellow lodgers, have this morning agreed to send to Georgetown and engage a stage to carry us, on the fourth of March to Baltimore. We expect to struggle with bad travelling. This preparatory step towards a return brings in the interesting idea of home prominently into view.
        Part of last evening I spent at Judge Cushing’s chamber. He has been sick two or three days with a slight fever, occasioned by a cold. His age and infirmity are subjects of conversation. But I believe he does not think of resigning. Indeed the idea of retiring from an office in which he has been so long employed, and which furnishes him with a necessity of exertion, to the relaxation of unoccupied private life, appears to be insupportable. Mrs. Cushing constantly attends him on his tours, and they have no children or other family. Where ever they are is home. I am not sure but, if I were in his situation, should adhere, as he does, to the Bench.
         Our Republican friends in the genl. Court at Boston, have been doing well this winter, so far as I have heard their proceedings. The electioneering campaign will soon open, I hope with some prospect of Republican success. As you say nothing of your Mama’s health, I infer she is comfortable. My respectful salutations to her and to all the family. Most sincerely and affectionately yours B. Bidwell. Yesterday a profile-taker attended in a lobby of the Representatives’ Chamber and requested the members to sit that he might take their profiles. After taking mine, he made a present of the enclosed.”

Washington, Feb. 16th, 1807, Barnabas writes:
“Dear Mary: The House of Representatives have just past the Slave Non-Importation Bill, sent from the Senate, with some amendments. It was not exactly conformable to the opinion of perhaps anyone member. It certainly was not agreeable to my wishes in several particulars; but it was the best that could be obtained; and I gave it my vote. There were 113 yeas and I think only 5 nays. The Bill prohibits the importation of slaves and divests the importer of all right in the person imported; but makes no provision for a disposition of them, if any of them should be imported contrary to the provisions of the Bill.

       The majority of the Supreme Court have ordered a Writ of habeas Corpus in the cases of Bollman and Swartwout. [9] Judge Chase, Judge Johnson dissented. Judge Chase was not present in the Court, when their opinion was declared. Johnson read the reasons of his opinion. Judge Cushing is confined to his chamber and has not been able to attend one day of this term. So that he has given no opinion in this case.
        The cold has abated here, and there has been a heavy rain, in consequence of which it is very muddy. My health is good. My attention is called to a subject of debate. Adieu. Most sincerely and affectionately, yours, B. Bidwell.”

 Although the Warning Out Law only lasted four years and only the 1793 list from Stockbridge survived, it allowed us to discover bits and pieces about the lives of some of the residents at the close of the 18th century. Barnabas, by letter, was able to report to Mary that the Slave Non-Importation Bill has passed the House of Representatives [10], an important first step in ending a cruel and inhumane way of life. It would take another 56 years and the Civil War to end slavery. [11]
Martin Luther King, Jr., reminded us that “the arc of the moral universe is long, but it bends toward justice.” [12]   

[1] On April 12, 1810, Levi Lincoln wrote a letter to President James Madison congratulating him on the happy results of the recent elections and notes that he has been informed that Judge Cushing was about to resign his seat on the US Supreme Court. He says: “You are sufficiently acquainted with the prominent legal characters in this judicial District. Mr. Bidwell’s standing in society, patriotism, professional qualifications are known to you. Please excuse the liberty I have taken. My apology is the importance of the subject, my only motive the general welfare.”  Lincoln served as US Attorney General under President Thomas Jefferson, 1801-1804.
[2] Caleb Strong (1745-1819) was the sixth and tenth governor of Massachusetts and a friend of Barnabas Bidwell.
[3] During that time it was also a trial court and the road circuit as well as acting as an appellate court.
[4] Massachusetts Historical Society: From William Cushing judicial notebook.
[5] Mr. Randolph suffered from mental illness and was prone to outbursts on the floor of the House.
[6] Of Lewis & Clark fame. Lewis was formerly Jefferson’s personal secretary and later committed suicide.
[7] President James Madison was in the process of proposing Barnabas Bidwell as Judge Cushing’s replacement on the U.S. Supreme Court when the Berkshire Country Treasurer’s scandal broke. Madison’s first pick, Levi Lincoln, was unable to serve due to failing eyesight.
[8] Eight year old Josiah Brewer came to live with Mary and Barnabas after the death of his father. Brewer’s son David J. Brewer served on the US Supreme Court with his uncle Stephen Johnson Field and Stockbridge neighbor Henry Billings Brown.
[9]  Ex parte Bollman, 8 U.S. 75, was a case brought before the United States Supreme Court. Bollman held that the constitutional definition of treason excluded mere conspiracy to levy war against the United States. Erick Bollman and Samuel Swartwout were civilians who became implicated in the Burr-Wilkinson Plot. Wikipedia (1807 US Supreme Court.) Related to Aaron Burr’s treasonous acts. Burr was found not guilty by trial. (Burr was Mary Gray Bidwell’s “cousin.”)
[10] The Senate passed it as well and President Jefferson signed the bill into law.
[11] President Lincoln issued the Emancipation Proclamation on January 1, 1863.
[12] “Remaining Awake Through a Great Revolution.” A speech given at the National Cathedral, March 31, 1968.

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