M
ENSCHEL
FINAL.
DOC
S
EPTEMBER
24, 2001
9/24/01 8:29 PM
184 The Yale Law Journal [Vol. 111: 183
were ambiguous and their implementation inconsistent.
3
In Pennsylvania,
New Jersey, New York, Connecticut, and Rhode Island, state legislatures
adopted gradual abolition legislation, which dismantled slavery over a
period of half a century.
4
Even histories of the North that distinguish gradual from immediate
abolition tend to depict the former as an event rather than as a process.
3. Recent scholarship has exposed the lack of clarity regarding the end of slavery in these
states. Some historians maintain that slavery in Massachusetts was eliminated by a judicial
interpretation of the state constitution of 1780 in a series of cases involving a slave, Quock
Walker, and his master, Nathaniel Jennison, but other historians challenge this analysis.
See
generally
John D. Cushing,
The Cushing Court and the Abolition of Slavery in Massachusetts:
More Notes on the “Quock Walker Case
,
”
5 A
M
. J. L
EGAL
H
IST
. 118 (1961) (discussing the
contributions of both judges and laypersons to the
Walker-Jennison
decisions); Elaine
MacEacheren,
Emancipation of Slavery in Massachusetts: A Reexamination, 1770-1790
, 55 J.
N
EGRO
H
IST
. 289 (1970) (emphasizing the role of individual masters who emancipated their
slaves and of individual slaves who took their freedom in bringing about the end of slavery in
Massachusetts); William O’Brien,
Did the Jennison Case Outlaw Slavery in Massachusetts?
, 17
W
M
. & M
ARY
Q. 219 (3d Ser. 1960) (suggesting that the decisions in the
Walker-Jennison
cases
may have been based on narrow issues rather than on a legal conclusion that slavery was
inconsistent with the state constitution); Alfred Zilversmit,
Quock Walker, Mumbet and the
Abolition of Slavery in Massachusetts
, 25 W
M
. & M
ARY
Q. 614 (3d Ser. 1968) (arguing that
Massachusetts citizens understood the Supreme Judicial Court’s decision in
Caldwell v. Jennison
as outlawing slavery). The 1790 U.S. census found no slaves in Massachusetts. B
UREAU OF THE
C
ENSUS
,
supra
note 2, at 47. But historians have uncovered evidence that suggests slavery
persisted in Massachusetts after that year.
See
MacEacheren,
supra
, at 304 n.3.
Vermont’s constitution of 1777 declared that no male “ought to be holden by law, to serve
any person, as a servant, slave or apprentice” after the age of twenty-one and no female after the
age of eighteen. It is unclear how soon after the 1777 constitution was adopted that slavery
actually disappeared in Vermont; even census figures contain discrepancies. The census of 1790
reported that there were sixteen slaves in Vermont, but some time after the Civil War the Census
Bureau reclassified these individuals as “free colored” and concluded that in fact there had been
no slaves in Vermont in 1790.
See
V
T
. C
ONST
. of 1777, ch. I, art. I (1777); B
UREAU OF THE
C
ENSUS
,
supra
note 2, at 47. Historian Joanne Melish speculates that the Census Bureau’s late
nineteenth-century decision to adjust the 1790 census figures for Vermont may have been inspired
by the “free-soil pride of place” of the Census Bureau’s chief clerk, George Harrington, who was
a Vermonter. J
OANNE
P
OPE
M
ELISH
, D
ISOWNING
S
LAVERY
64 n.31 (1998).
The conditions that gave rise to the abolition of slavery in New Hampshire are elusive.
According to historian Alfred Zilversmit, some residents of New Hampshire interpreted the bill of
rights of the 1783 state constitution as prohibiting slavery, but in 1792 there were still nearly 150
slaves in the state. A
RTHUR
Z
ILVERSMIT
, T
HE
F
IRST
E
MANCIPATION
117 (1967) [hereinafter
Z
ILVERSMIT
, T
HE
F
IRST
E
MANCIPATION
]. In 1800, eight slaves remained. B
UREAU OF THE
C
ENSUS
,
supra
note 2, at 133.
4. An Act Concerning Indian, Molatto, and Negro Servants and Slaves (1784),
in
1784 A
CTS
AND
L
AWS OF THE
S
TATE OF
C
ONNECTICUT IN
A
MERICA
233, 235 (New London, Timothy Green)
[hereinafter A
CTS AND
L
AWS OF
C
ONNECTICUT
] (gradual abolition in Connecticut); An Act for
the Gradual Abolition of Slavery (1804),
in
1811 L
AWS OF THE
S
TATE OF
N
EW
J
ERSEY
103, 103-
04 (Trenton, James J. Wilson) (gradual abolition in New Jersey); An Act for the Gradual
Abolition of Slavery (1799),
in
4 L
AWS OF THE
S
TATE OF
N
EW
Y
ORK
P
ASSED AT THE
S
ESSIONS
OF THE
L
EGISLATURE
H
ELD IN THE
Y
EARS
1797, 1798, 1799
AND
1800, I
NCLUSIVE
388, 388-89
(Albany, Weed, Parsons & Co. 1887). (gradual abolition in New York); An Act for the Gradual
Abolition of Slavery (1780),
in
10 T
HE
S
TATUTES AT
L
ARGE OF
P
ENNSYLVANIA
1682
TO
1801, at
67, 68-69 (1904) (gradual abolition in Pennsylvania); An Act Authorizing the Manumission of
Negroes, Mulattoes, and Others, and for the Gradual Abolition of Slavery (1784),
in
10 R
ECORDS
OF THE
S
TATE OF
R
HODE
I
SLAND AND
P
ROVIDENCE
P
LANTATIONS IN
N
EW
E
NGLAND
1784-1792,
at 7, 7 (Providence, Providence Press Co. 1865) (gradual abolition in Rhode Island).