Freedom suits

Freedom suits were legal petitions filed by slaves for freedom in the United States and its territories before the American Civil War, including during the colonial period. Most were filed during the nineteenth century. After the American Revolution, most northern states had abolished slavery, and the United States Congress prohibited it in some newly established territories. Slave states and territories had slave laws that created "just subjection."^[1] They also had laws that provided for slaves to sue on the basis of "wrongful enslavement."

Free states and territories generally held that slaveholders forfeited their rights to "property" by bringing slaves into the state for extended travel or residency. As people began migrating and traveling more frequently, residency changes provided grounds for some slaves to sue for freedom. Courts in Missouri, Kentucky, Louisiana and Mississippi freed numerous slaves on the grounds of their having been held illegally in free states. Other grounds were that the person was freeborn and illegally held in slavery, or that the person was illegally held because of having been descended from a freeborn woman in the maternal line. The principle of partus sequitur ventrem, established that children at birth took the status of the mother. It was first incorporated into English colonial slavery law in 1662 in Virginia. Partus was adopted into law by other English colonies, and the states of the United States.

By 1846, several hundred such cases had been tried in state courts across the country. Slaves had gained freedom in 57 percent of the 575 freedom suits decided in state appellate courts.^[2] The largest corpus of freedom suits available to researchers today is in St. Louis, Missouri, where 301 files dating from 1814-1860 are among St. Louis Circuit Court Records discovered in the 1990s. Slightly less than half the slaves in these cases gained freedom. The Missouri History Museum's research center maintains an online searchable database of the freedom suits.^[3]

The first freedom suit in St. Louis was filed in 1805 by Marguerite Scypion, an African-Natchez woman.^[2] Briefly, she filed based on maternal descent from her Natchez grandmother. As the Spanish had ended Indian slavery in 1769, Scypion held that her mother, Marie-Jean Scypion, should have been freed at the time based on her Natchez ancestry, and that Marguerite herself was illegally held as a slave from birth. Having had an earlier ruling in her favor overturned on appeal, in 1826 Marguerite Scypion renewed her suit for freedom, filing against her current master Jean Pierre Chouteau, who headed one of the most prominent fur trading families in the city. She gained freedom for herself and all her mother's descendants in 1836, in a decision upheld by the US Supreme Court.^[2]

As the city was the "Gateway to the West", and Missouri was admitted as a slave state (bordered by free states), the St. Louis courts heard many freedom suits. If the court held there was a basis for the suit, it appointed counsel for slave plaintiffs. Many leading attorneys in St. Louis worked on slave suits. In 1824, the Missouri courts established the precedent known as "once free, always free", freeing slaves in Missouri based on their having been held by their masters illegally in free states or territories. This held for decades until 1852 and the Dred Scott v. Sandford decision, which ruled that Scott should have filed for freedom while in a free state.^[3]

Contents 1 History 2 Selected notable cases 3 References 4 Further reading 5 External links

History

United States slavery case law began during its colonial period. In North America, different laws prevailed in the colonies ruled by the English, Spanish and French. The freedom suits originated at the colonial, county, territorial and state court levels, and several important nineteenth-century cases were appealed to the United States Supreme Court.^[3] In part because men could more easily escape from slavery, a relatively high proportion of freedom suits were brought by women, on behalf of themselves and their children. In a paradox noted by the scholar Edlie Wong in her book Neither Fugitive nor Free (2009), slave states had statutes that provided for slaves to sue for "wrongful enslavement", based on slave laws that established "just subjection".^[1]

With the development in the early nineteenth century of free states and territories, tensions began to grow between them and the slave states. Generally the free jurisdictions passed laws that slaveholders forfeited their rights to "property" by bringing slaves into the state for extended travel or residency. During the period before the Civil War, as thousands of people migrated west, slave law developed based on the challenges of such travel-related conditions. While the following states allowed slavery, the courts of Missouri, Kentucky, Louisiana and Mississippi respected the laws of free jurisdictions; and juries freed numerous slaves on the grounds of their having been held illegally in free states.^[4]

The St. Louis Circuit Court heard numerous freedom suits; the city's function as the "Gateway to the West" and its connection to major continental rivers meant that it was a center of travel for decades between free and slave territories. Army officers and others settled in Missouri after having held their slaves in free territories; others traveled through the city on their way to free territories. The nearby city of Alton in Illinois became a center of abolitionist activities, and St. Louis developed its own network of people who supported slaves seeking freedom. Prominent attorneys were among those appointed as counsel by the court to argue for slaves' seeking freedom. For instance, Hamilton Gamble, a future governor of the state, and Isaac McGirk, brother of a future State Supreme Court justice, were appointed in 1825 to represent Marguerite. Slaves also recruited their own help; for instance, Polly Wash (see below) enlisted Edward Bates, a judge and the future Attorney General in President Abraham Lincoln's cabinet, to argue in her daughter's freedom suit.

As sectional tensions rose, state court decisions began to go against travel cases, culminating in the Dred Scott v. Sandford (1852) case in Missouri. The State Supreme Court ruled against Scott, saying that he should have sued for freedom while held in a free territory. It was the end of the "once free, always free" precedent that the Missouri court had previously applied. Appealed to the US Supreme Court, the case met a more stringent ruling in 1857, with Chief Justice Roger Taney determining that Congress did not have the constitutional power to regulate slavery, as it was protected under the constitution; that the Missouri Compromise, by which Congress established boundaries for slavery, was unconstitutional; and that slaves and free people of color had no legal standing in the federal courts, as ethnic Africans were not included in the original conception of citizens of the new United States.

In the 1990s, researchers studying the St. Louis Circuit Court Records found 301 freedom suit files dating from 1814-1860. St. Louis, Missouri has the largest extant corpus of freedom suit case files available to researchers in the United States. The Missouri History Museum research center maintains an online searchable database of the freedom suits and other cases from this period, including scanned images of the original documents.^[3]

Selected notable cases

• 1656, Elizabeth Key of Virginia filed the first freedom suit by a woman of African descent and won as a free woman of color. The mixed-race child of an enslaved black mother and the white planter Thomas Key, she sued for her freedom and that of her infant son, John Grinstead, on the basis that her father was a free English subject, she was a baptized Christian, and she had served ten years past the term of her indenture. In English common law, children of English subjects took the status of the father(partuus sequitur patrem).^[5] But, at this time Africans were not considered English subjects, as they were foreigners. England had no provision for foreigners to become subjects. In the early years of the colony, the law was unsettled about the status of children born to an English subject and a foreigner. Taunya Lovell Banks's analysis of this case suggests it turned more on the issue of "subjecthood" than about citizenship or race.^[6]

To settle the issue, in 1662 Virginia passed a law incorporating the Roman principle of partus sequitur ventrem, referred to as partus, which held that a child inherited the status of its mother, "bond or free". All children of enslaved women were thus born into slavery, regardless of their fathers. The law hardened the racial caste of slavery, as most of the "bondswomen" were ethnic Africans and therefore considered foreigners.^[6] The principle was adopted by other English colonies, and later incorporated into slavery law in the United States.

• 1781, Brom and Bett v. Ashley, County Court, Great Barrington, Massachusetts. This case set a state precedent based on the ruling that slavery was irreconcilable with the new state constitution of 1780, which was based on equality of persons, although it did not specifically address slavery. This county court case was cited in the appeal of the more well-known case of Quock Walker v. Jennison (1783), heard at the Massachusetts Supreme Judicial Court, which effectively ended slavery in Massachusetts.^[7]

• 1805 - 1836, Marguerite Scypion v. Pierre Chouteau, Sr., St. Louis, Missouri. Marguerite, a descendant of Marie Jean Scypion, an enslaved African-Natchez woman, sued her first master Joseph Tayon in 1805. Her suit was based on her maternal descent from a Natchez maternal grandmother. She held that her mother was illegally held after Spain abolished Indian slavery in 1769, so her daughters, including Marguerite, should have been considered free at birth and not born into slavery. This was the first freedom suit filed in St. Louis.^[3][8] Although the jury ruled in Scypion's favor, a higher territorial court overturned the decision.

After passage in 1824 of a state law related to slaves' right to file for freedom, in 1825 Scypion and her two sisters filed new petitions against their masters, then Jean Pierre Chouteau and two Tayon daughters. For such suits, the law gave slaves the standing of a free poor person, "with limited rights and privileges."^[9] The cases were combined under Marguerite Scypion's name. After their attorney successfully gained two changes of venue away from St. Louis for the trial, a unanimous jury in Jefferson County in 1836 decided in favor of the descendants of Marie Jean Scypion and ended Indian slavery in Missouri.^[3] The decision survived appeals to the State Supreme Court and the US Supreme Court in 1838.^[10]

• 1824, Winny v. Whitesides (1824), St. Louis, is the first freedom suit taken to the newly established Missouri state supreme court. Winny had lived as a slave with her masters in the free state of Illinois for years; she filed for freedom after they moved to Missouri. The case marked the beginning of the "once free, always free" era in Missouri. The Missouri Supreme Court ruled that if a slave had been taken into an area that prohibited slavery, that slave was free – even if returned to a slave state, such as Missouri.^[11] Missouri established a precedent of enforcing the laws of neighboring free states and territories related to forfeiture of illegally held slaves.^[12] "Courts in Kentucky, Louisiana and Mississippi also upheld the freedom of slaves who had lived in a free state or territory."^[4] The precedent prevailed in Missouri until 1852, when the state Supreme Court ruled against it in Dred Scott v. Sanford, against a political background of increasing sectional tensions over slavery.

• 1830, Charlotte Dupuy v. Henry Clay, Washington, DC. In 1829 Charlotte Dupuy sued Henry Clay, the retiring Secretary of State, for her freedom and that of her two children based on a promise by a previous master. The case received wide attention in the press. Dupuy gained a court ruling that she remain in the city until her case was heard. She earned wages from Clay's successor, Martin Van Buren, while living at Decatur House for 18 months. The case was notable for these circumstances. After the court ruled against Dupuy in 1830, Clay kept her and her daughter enslaved for another decade; he freed her son four years after that. The Decatur House has had exhibits on urban slavery and Dupuy's case.^[13] The story of the Dupuy family is also featured at the Isaac Scott Hathaway Museum of Lexington, Kentucky.^[14]

• 1834, Rachel v. Walker, St. Louis, Missouri. Surviving appeal to the State Supreme Court, the ruling held that "if an officer of the United States Army takes a slave to a territory where slavery is prohibited, he forfeits his property."^[10] Officers had tried to argue that they could not control their assignments and should not have to forfeit their property. At one time, the US Army paid officers a stipend for servants. No substantive freedom suits based on prior travel or residency in free territories reached the Missouri Supreme Court from 1837–1852, making it appear that the issue was settled in favor of freedom for slaves thus affected.^[15]

• 1836, Commonwealth v. Aves vi, 18 Pick. 193 Boston, Massachusetts.^[16] When New Orleans resident Mary Slater visited her father Thoma Aves in Boston, she brought her slave girl Med. In Boston, Slater fell ill and asked her father to care for Med. The Boston Female Anti-Slavery Society and others sought a writ of habeas corpus against Aves, contending that Med became free by Slater's having brought her voluntarily into the free state. The Supreme Judicial Court of Massachusetts ruled that Med was free, and made her a ward of the court. The Massachusetts decision was considered notable for ruling that a slave whom a master voluntarily brought into a free state became free from the first moment of arrival; freedom did not require the master's establishing residency.^[16] The decision angered Southerners.

• 1844 Polly Wash v. David D. Mitchell, St. Louis, Missouri. Polly Berry (filing as Polly Wash) was the mother of Lucy Ann Berry, and sued for her daughter's freedom in 1842. By 1844 Wash had secured her own freedom, based on having been held illegally as a slave in the free state of Illinois.^[17] When her daughter's case was heard later that year, the jury voted in favor of Wash (and Berry), freeing the girl. Nearly 50 years later, the then-married Lucy Delaney published her memoir, the only first-person account of a freedom suit.^[18][19]

• 1852 Scott v. Emerson. The legal scholar Edlie Wong has noted that the case was shaped by Harriet and Dred Scott's desire to achieve freedom and to protect their two young daughters Eliza and Lizzie, who were of salable age and at great risk in slave markets by the time it was settled.^[20] By the 1850s, southern juries were less willing to grant freedom to slaves based on their residence in free states.^[19] In 1852 the Missouri state supreme court ruled that Scott's residence in a free state did not entitle him to freedom after he returned to Missouri. Its ruling that he should have sued for freedom while in a free state, was a de facto end to the precedent of "once free, always free" in the state.
• 1857 Dred Scott v. Sandford, the US Supreme Court decision was more severe, finding that slaves had no legal status in federal courts as citizens, and that Congress had no constitutional right to prohibit slavery in any state or territory. While the case has been often discussed in terms of Dred Scott's individual rights, the couple were seeking freedom for both of them and especially to protect their two daughters. The scholar Edlie Wong has assessed the case as a "history of litigation profoundly shaped by gender and kinship."^[21]

References

• Edlie L. Wong, Neither Fugitive nor Free: Atlantic Slavery, Freedom Suits, and the Legal Culture of Travel, New York University Press, 2009

Further reading

• Jeannine Delombard, Slavery On Trial: Law, Abolitionism, and Print Culture, Chapel Hill: University of North Carolina Press, 2007

External links

• "Freedom Suits", African-American Life in St. Louis, 1804-1865, from the Records of the St. Louis Courts, Jefferson National Expansion Memorial, National Park Service