Freedom suit

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Freedom suits are legal petitions filed by slaves for freedom.

Hundreds of such suits were filed 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 under the partus sequitur ventrem doctrine. Even manumitted slaves could find need to sue for freedom.^[2]

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.^[3] 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.^[4]

The first freedom suit in St. Louis was filed in 1805 by Marguerite Scypion, an African-Natchez woman.^[3] 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.^[3]

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.^[4]

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. Several important nineteenth-century cases were appealed to the United States Supreme Court.^[4] 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]

In Virginia, which had early colonization and interaction with Native Americans, numerous freedom suits were related to slaves claiming freedom based on descent from a maternal Indian line, as the colony abolished Indian slavery as of 1705. There were earlier questions of whether such slavery was abolished in 1684, 1691 and finally 1705, affecting many generations of descendants. In 1662 Virginia had passed a law based on partus sequitur ventrem, establishing that children born in the colony followed their mother's status in determining if they were free or enslaved. Freedom suits related to Indian ancestry were filed in Virginia even in colonial times, as shown by a case in 1772 in which twelve plaintiffs gained freedom based on maternal Indian ancestry.^[5] Although many records were destroyed during the Civil War, the Library of Virginia has discovered more than 100 freedom suits, most from the first half of the 19th century, and digitized them; these are now available online in the Chancery Court Index.^[5]

With the development in the early 19th century of free states and territories in the United Sates after the North generally abolished slavery, tensions increased on this issue between their laws on this issue and those of the slave states. Generally the free jurisdictions passed laws that slaveholders forfeited their rights to "property" by voluntarily bringing slaves into the state for extended travel or residency; these became known as transit cases. During the period before the Civil War, as thousands of people migrated west, slave law developed based on the challenges of such travel-related or temporary residency conditions.

While Missouri, Kentucky, Louisiana and Mississippi were slave states, through much of the antebellum period, their courts widely respected the laws of free jurisdictions. Precedents were established in Kentucky, Missouri and Louisiana, and maintained by other states, of freeing slaves in freedom suits on the grounds of their having been held illegally in free states; it was known as "once free, always free."^[6] Mathias McGirk, a state supreme court justice in Missouri, distinguished between "necessity" and "convenience" in some cases, when distinguishing whether a slaveholder had a choice in keeping a slave in servitude while in a free state.^[7]

In addition, some freedom suits were brought on behalf of slaves who said they were free blacks who had been kidnapped from the North (often from border states) and sold into slavery. The most famous account of such an ordeal is Twelve Years a Slave (1853) by Solomon Northup, a free man from Saratoga Springs, New York. Historian Carol Wilson has documented hundreds of cases, and many more are believed to have occurred.^[8] In 1840 governor William Henry Seward of New York gained passage of a state law guaranteeing a jury trial to alleged fugitive slaves, at a time when slave catchers tried to claim free blacks as escapees. He also signed a law that year that promised the aid of the state to free slave victims of kidnappings.^[9][10] In 1853, the state commissioned attorney Henry S. Northup as its agent in the Solomon Northup case, sending him to Louisiana after securing affidavits and witness testimony to free the New York citizen from slavery at a Red River plantation.

Many freedom suits were heard in New Orleans, Louisiana, a major center of slaves sales, as well as St. Louis. In Tuscaloosa, Alabama, a freedom suit was tried for Cornelius Sinclair, a free black man from Philadelphia, Pennsylvania, who had been sold into slavery after being kidnapped in August 1825 by the Cannon–Johnson gang and shipped South with other free blacks.^[11] A total of about 20 young blacks, including children, disappeared from the Philadelphia area that summer. Philadelphia had the largest population of free blacks in the North and no professional police department in the antebellum years, so their residents were at risk.^[12] Several of these free blacks were sold into slavery in Mississippi, where at least one told of his kidnapping. This started the effort to rescue the children.^[11][12] Helped by the intervention of Mayor Joseph Watson of Philadelphia and prominent white leaders in Mississippi, including the Governor, most of those illegally held free black children were returned to Philadelphia by June 1826. Sinclair's odyssey was longer but he gained freedom in 1827 by a unanimous verdict from an all-white jury after a trial in the Alabama state circuit court. The Philadelphia mayor paid for a white witness to travel to Tuscaloosa to testify on his behalf and identify him as free. Held as a slave, Sinclair was prevented from testifying against a white in court. At this time, more than one-third of the residents of Alabama were enslaved.^[13]

Navigable rivers near St. Louis

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 for decades it was a center of travel between free and slave territories. Missouri was a slave state. Army officers and other slaveholders settled in Missouri after having held their slaves in free territories; other slaveholders traveled through the city on their way to free territories. The nearby city of Alton in Illinois across the Mississippi became a center of abolitionist activities.

St. Louis developed its own network of people who gave support to slaves seeking freedom. Prominent attorneys, including slaveholders, were among those appointed as counsel by the court to argue for such slaves. For instance, in 1825 Hamilton Gamble, a future governor of the state, and Isaac McGirk, brother of Mathias McGirk, a State Supreme Court justice (1820–1841), were appointed to represent Marguerite Scypion in her freedom suit against the prominent Chouteau family. Both were slaveholders. Scypion ultimately won her case. 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 a freedom suit filed for her daughter.

As sectional tensions rose, state court decisions began to go against transit 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 applied for decades. Appealed to the US Supreme Court, the case was decided in 1857 by Chief Justice Roger Taney, who held that Congress did not have the constitutional power to regulate slavery in the states, 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. (This decision has been disagreed with, as at the time of the Articles of Confederation and later drafting of the Constitution, free blacks were allowed to vote and sit on juries in several states and fulfilled other obligations and privileges of citizenship.)

In the 1990s, researchers studying the St. Louis Circuit Court Records found 301 freedom suit files dating from 1814 to 1860. St. Louis 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.^[4]

Selected notable cases in the United States

• 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 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).^[14] But, at this time Africans were not considered to be English subjects but 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 suggests in her analysis that the issue of "subjecthood" was more important than ideas about citizenship or race.^[15]

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 the race or status of their fathers. The law hardened the racial caste of slavery, as most of the "bondswomen" were ethnic Africans and therefore considered foreigners.^[15] The principle was adopted by other English colonies, and later incorporated into slavery law in the United States.

At the same time, this law meant that mixed-race children born to white women were free. Paul Heinegg, in his Free African Americans in Virginia, North Carolina, South Carolina, Maryland and Delaware (1995–2005) has traced the majority of families of free people of color in the early federal period, to families formed in colonial Virginia from unions between white women and African or African-American men among the working class, where free, indentured servants and slaves lived and worked near each other. While illegitimate mixed-race children of white mothers were bound to lengthy terms as apprentices, they still had gained the important status of free birth and the women's descendants were free.^[16]

• 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.^[17]

• 1806, Houlder Hudgins v. Jackey Wright, Richmond, Virginia. Jackey Wright sued for freedom for her and her two children, based on descent from Indian women; Virginia had prohibited Indian slavery since 1705 (or 1691). George Wythe as Chancellor had ruled for the Wrights' freedom based on their appearance as white and Hudgins' failure to prove that they were slaves; secondly, he ruled on the basis of a "presumption of freedom," according to the 1776 Virginia Declaration of Rights.^[18] Houlder Hudgins appealed. The justices of the Court of Appeal, all slaveholders, held that the appellant had not proved any evidence of African maternal ancestry among the appellees, that they appeared white, and that the community considered their grandmother and great-grandmother to be Indians. They held that Virginia's Bill of Rights applied only to "free citizens and aliens", and could not be used to overturn "rights of property" in slaves. They ruled that the Wrights were free based on their recognized Indian maternal ancestry, as Indian had been free since 1705.^[19][20]

• 1805–1836, Marguerite Scypion v. Pierre Chouteau, Sr., St. Louis, Missouri. Marguerite, daughter of Marie Jean Scypion, an enslaved woman of African-Natchez descent, sued her first master Joseph Tayon's son François Tayon (who inherited her when his father died) 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 its territories in 1769. Her children, including Marguerite, should have been considered free at birth and not born into slavery. This was the first freedom suit filed in St. Louis and took place shortly after the US acquired the Louisiana Territory from France.^[4][21] Although the jury ruled in Scypion's favor, a higher territorial court overturned the decision.

After passage in 1824 of a Missouri state law related to the right of slaves to file freedoms suits, in 1825 Scypion and her two sisters filed new petitions for freedom against their masters, by then 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."^[22] 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, Missouri in 1836 decided in favor of the descendants of Marie Jean Scypion and officially ended Indian slavery in Missouri.^[4] The decision survived appeals to the State Supreme Court and the US Supreme Court in 1838.^[23]

• 1824, Winny v. Whitesides (1824), St. Louis, is the first freedom suit in Missouri taken to the newly established 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 later returned to a slave state, such as Missouri.^[24] Missouri established a precedent of enforcing the laws of neighboring free states and territories related to forfeiture of illegally held slaves.^[25] "Courts in Kentucky, Louisiana and Mississippi also upheld the freedom of slaves who had lived in a free state or territory."^[6] 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; and her son for four years after that. He eventually freed them all. The Decatur House, now a historic site, has had exhibits on urban slavery and Dupuy's case.^[26] The story of the Dupuy family is also featured at the Isaac Scott Hathaway Museum of Lexington, Kentucky.^[27]

• 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."^[23] Military officers had tried to argue that they could not control their assignments and should not have to forfeit their property if sent to a free jurisdiction. 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.^[28]

• 1835 Marie Louise v. Marot (1836) was heard by the Louisiana state district court and appealed to the Louisiana Supreme Court. The Court held that a slave who is taken to a territory prohibitive of slavery cannot be again reduced to slavery on returning to a territory allowing slavery. Presiding Judge George Mathews, Jr. stated that "[b]eing free for one moment...it was not in the power of her former owner to reduce her again to slavery."^[29] This precedent was overturned by the U.S. Supreme Court in the 1856 landmark Dred Scott v. Sandford case.

• 1836, Commonwealth v. Aves vi, 18 Pick. 193 Boston, Massachusetts.^[30] 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; no extended residency was required.^[30] The decision angered Southerners.

• 1841, United States v. The Amistad, a group of Mende slaves being illegally transported on a ship near Cuba (then a Spanish territory) mutinied against the crew and demanded to return to West Africa. The surviving crew members tricked the slaves by steering the ship to Long Island, where it was intercepted by the US Coast Guard. The United States Supreme Court heard the case in Connecticut, where the ship was taken and the Mende held. It was international in scope, as the Spanish government supported the ship owners in their attempt to retain the people as slaves. The Court ruled that the Mende were taken illegally from Africa in violation of a treaty the Spanish had signed, and that they had legally defended their freedom in the mutiny. The Court ordered that the slaves be immediately freed. A collection was made to raise funds to return them to West Africa.

• 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.^[31] 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.^[32][33]

• 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.^[34] By the 1850s, southern juries became less willing to follow precedent and grant freedom to slaves based on their having resided for a time in free states.^[33] 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 in Missouri to the precedent of "once free, always free."

• 1853, Solomon Northup v. Edwin Epps. Solomon Northup, a free citizen of New York, had been abducted in Washington, DC and sold as a slave in Louisiana in 1841. In 1852 he convinced a white man to write a letter informing his friends in New York of his whereabouts. In January 1853 an agent of the state of New York brought evidence of Northup's freedom to Avoyelles Parish, Louisiana and retained a local lawyer to represent Northup. A local judge quickly ruled that Northup was free. Northup then returned to New York.

• 1857, Dred Scott v. Sandford. The US Supreme Court ruling sas more severe, finding that African-descended persons and 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."^[35]

Freedom suits in Great Britain

• Somersett's Case (1772), a freedom suit ruled on by Lord Mansfield in England, who found that slavery had no basis in common law, and no "positive law" had been passed to establish it. His ruling was narrow, saying only that the master could not remove Somerset against his will from England, to send him to Jamaica for sale. But, it was widely considered to end slavery in England.
• Knight v. Wedderburn (1778), a freedom suit by Joseph Knight (slave), in which, as in Somersett, the court found that slavery had no basis in Scottish common law and effectively ended the institution.

See also

• American slave court cases

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.
• "St. Louis Circuit Court Records", A collection of images and transcripts of 19th century Circuit Court Cases in St. Louis, particularly freedom suits. A partnership of Washington University and Missouri History Museum, funded by an IMLS grant
• "'Hundreds of the descendants of Indians have obtained their freedom:' Freedom Suits in 18th and 19th Century Virginia", Out of the Box blog, Archives at the Library of Virginia, 26 September 2012
• "Chancery Records Index", Archives at the Library of Virginia, includes approximately 100 freedom suits