Freedom suit

From Wikipedia, the free encyclopedia
Jump to: navigation, search
An animation showing when United States territories and states forbade or allowed slavery, 1789–1861.

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]


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]

With the development in the early 19th century of free states and territories in the United Sates, tensions increased on the issue of slavery 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 widely respected the laws of free jurisdictions. Their juries freed numerous slaves on the grounds of their having been held illegally in free states.[5]

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 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.

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 Scypion in her freedom suit. 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 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.

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

Selected notable cases in the United States[edit]

  • 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).[6] 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.[7]
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.[7] 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.[8]

  • 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.[9]
  • 1806, Houlder Hudgins v. Jackey Wright, Richmond, Virginia. Jackey Wright sued for freedom for her and her two children, based on descent from women recognized as Indian in the community; Virginia had prohibited Indian slavery since 1705 (or 1691). George Wythe as Chancellor had ruled for their 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.[10] 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, or descent from free women.[11][12]
  • 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, so the 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][13] 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 slaves' right to file freedoms suits, in 1825 Scypion and her two sisters filed new petitions against their masters, 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."[14] 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 ended Indian slavery in Missouri.[4] The decision survived appeals to the State Supreme Court and the US Supreme Court in 1838.[15]
  • 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 later returned to a slave state, such as Missouri.[16] Missouri established a precedent of enforcing the laws of neighboring free states and territories related to forfeiture of illegally held slaves.[17] "Courts in Kentucky, Louisiana and Mississippi also upheld the freedom of slaves who had lived in a free state or territory."[5] 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.[18] The story of the Dupuy family is also featured at the Isaac Scott Hathaway Museum of Lexington, Kentucky.[19]
  • 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."[15] 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.[20]
  • 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 was not in the power of her former owner to reduce her again to slavery."[21] The 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.[22] 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.[22] The decision angered Southerners.
  • 1841, United States v. The Amistad, a group of slaves being transported on a ship near Cuba (then a Spanish territory) mutinied against the crew. The surviving crew members took the slaves to Long Island. The federal court ruled that, since the slaves were taken illegally from Africa in violation of a treaty the Spanish had signed, the slaves were to be immediately freed.
  • 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.[23] 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.[24][25]
  • 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.[26] By the 1850s, southern juries were less willing to grant freedom to slaves based on their residence in free states.[25] 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."[27]

Freedom suits in Great Britain[edit]

  • 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[edit]


  1. ^ a b Wong (2009), p. 153
  2. ^ Ariela J. Gross, "Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South," 108 Yale Law Journal 109 (1998)
  3. ^ a b c William E. Foley, "Slave Freedom Suits before Dred Scott: The Case of Marie Jean Scypion's Descendants", Missouri Historical Review, 79, no. 1 (October 1984), p. 1, at The State Historical Society of Missouri, accessed 18 February 2011
  4. ^ a b c d e f "Freedom Suits Case Files, 1814–1860", St. Louis Circuit Court Records Project, a collaboration between the Missouri State Archives, the St. Louis Circuit Court Clerk's Office, the American Culture Studies Program, Washington University, and the Missouri Historical Society (St. Louis, MO), 2004, accessed 4 January 2011 and 5 November 2012
  5. ^ a b Paul Finkelman, John F. A. Sanford, Dred Scott, Dred Scott v. Sandford: A Brief History with Documents, New York: Palgrave Macmillan, 1997, p. 20, accessed 17 February 2011
  6. ^ Greene, Lorenzo Johnstone. The Negro in Colonial New England, p. 126
  7. ^ a b Taunya Lovell Banks, "Dangerous Woman: Elizabeth Key's Freedom Suit – Subjecthood and Racialized Identity in Seventeenth Century Colonial Virginia", 41 Akron Law Review 799 (2008), Digital Commons Law, University of Maryland Law School, accessed 21 Apr 2009
  8. ^ Paul Heinegg, Free African Americans in Virginia, North Carolina, South Carolina, Maryland and Delaware (1995-2005)
  9. ^ Zilversmit, Arthur (October 1968). "Quok Walker, Mumbet, and the Abolition of Slavery in Massachusetts". The William and Mary Quarterly. Third (Omohundro Institute of Early American History and Culture) 25 (44): 614–624. JSTOR 1916801. 
  10. ^ Robert M. Cover, Justice Accused: Antislavery and the Judicial Process, New Haven and London: Yale University Press, 1975, p. 51
  11. ^ Hudgins v. Wright (1806), Race and Racism in American Law, Dayton Law School, University of Dayton
  12. ^ Ariela J. Gross (2008), What Blood Won't Tell: A History of Race on Trial in America, pp. 23–24 ISBN 978-0-674-03130-2
  13. ^ "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, accessed 11 January 2011
  14. ^ Wong, p. 130
  15. ^ a b "Timeline of Missouri's African American History", Missouri Digital Heritage, Missouri State Archives, accessed 18 February 2011
  16. ^ "Before Dred Scott: Freedom Suits in Antebellum Missouri", Missouri Digital History, Missouri State Archives, accessed 1 February 2011
  17. ^ Wong (2009), p. 135
  18. ^ History: "African American History: Residents: Charlotte Dupuy", Decatur House, National Trust for Historic Preservation, accessed 1 January 2011
  19. ^ "Aaron and Charlotte Dupuy", Isaac Scott Hathaway Museum of Lexington, Kentucky
  20. ^ Paul Finkleman, An Imperfect Union: Slavery, Federalism, and Comity, The Lawbook Exchange, Ltd., 2000, p. 222, accessed 26 February 2011
  21. ^ "Champion of Civil Rights: Judge John Minor Wisdom". Southern Biography Series: LSU Press, 2009, p 24. Retrieved December 4, 2012.
  22. ^ a b Commonwealth v. Aves (1836), JRank, retrieved 11-26-10
  23. ^ Wong (2009), p. 138
  24. ^ Eric Gardner, " 'You have no business to whip me': the freedom suits of Polly Wash and Lucy Ann Delaney", African American Review, Spring 2007, accessed 4 January 2011
  25. ^ a b Wong (2009), p. 127
  26. ^ Wong (2009), pp. 130–135
  27. ^ Wong (2009), p. 130

Further reading[edit]

External links[edit]