Freedom suit
Freedom suits were lawsuits in the Thirteen Colonies and the United States filed by slaves against slaveholders to assert claims to freedom, often based on descent from a free maternal ancestor, or time held as a resident in a free state or territory.
The right to petition for freedom descended from English common law and allowed people to challenge their enslavement or indenture. Petitioners challenged slavery both directly and indirectly, even if slaveholders generally viewed such petitions as a means to uphold rather than undermine slavery. Beginning with the colonies in North America, legislatures enacted slave laws that created a legal basis for "just subjection"; these were adopted or updated by the state and territorial legislatures that superseded them after the United States gained independence. These codes also enabled enslaved persons to sue for freedom based on wrongful enslavement.
While some cases were tried during the colonial period, the majority of petitions for freedom were heard during the antebellum period in the border or the Southern United States. After the American Revolution, most northern states abolished slavery and were considered "free". The United States Congress prohibited slavery in some newly established territories, and some new states were admitted to the union as free states. The rise in travel and migration of masters with slaves between free and slave states resulted in conditions that gave rise to slaves suing for freedom. Many free states had residency limits for masters who brought slaves into their territory; after that time, the slave would be considered free. Some slaves sued for wrongful enslavement after being held in a free state.
Other grounds for suit were that the person was freeborn and illegally held in slavery, or that the person was illegally held because of being descended from a freeborn woman in the maternal line. The principle of partus sequitur ventrem, first incorporated into Virginian law by a 1662 statute in the House of Burgesses, established that children's status was that of the mother. It was also adopted into law by all of the Southern colonies, and later the slave states of the United States.
In Saint Louis, Missouri, records of nearly 300 petition cases have been found that were filed between 1807 and 1860, and in Washington, D.C., nearly 500 petition cases were filed in the same period. A large portion of cases, as much as one-third, either never went to trial or were settled out of court. In the early nineteenth century in St. Louis and in Washington, D.C., nearly half of the attorneys at the bar may have acted as counsel for slave petitions. In Missouri, the courts assigned an attorney to the petitioner if it accepted a freedom suit for hearing; some of the top attorneys in St. Louis represented slaves. After the 1830s, the number of petition cases gradually declined. But from 1800 to 1830, most of the bar in these cities tried a petition case.
Before the end of the eighteenth century, some southern states began to make petitioning for freedom more difficult. Maryland, for example, in 1796 required that county courts serve as the court of original jurisdiction, rather than the General Court of the Western Shore, an appellate court. The county courts clearly would be more favorable to the interests and views of the local planters against whom these suits were often filed. The legislature also banned persons with known antislavery sympathies from serving on juries in freedom suits. Virginia passed a similar law on jury composition in 1798.
But, for a few decades, courts in slave states such as Louisiana, Mississippi, and Missouri often respected the precedent of "once free, always free" established by free states. Until the early 1850s, they ruled that slaves who had been held in free states maintained their freedom even if brought back into slave states.
Until the Civil War brought an end to slavery, thousands of freedom suits were tried in state courts across the country, with some slaves petitioning as high as the Supreme Court.
History
Colonial petitions for freedom
The act of writing petitions asking the courts for freedom has been a practice within North America dating back to the late 1600s. Some of the first petitions for freedom were not directed at the courts, but to the various colonial joint stock companies, such as the Dutch West India Company, which operated in the Northeast and mid-Atlantic area. During the early importation of enslaved laborers, the West India Company had no strict laws governing their status and condition. Enslaved persons were allowed to marry and raise families as long as they continued to work for the company. In this regard, many early petitions were by slaves attempting to obtain freedom on behalf of their nuclear families. In the antebellum period, enslaved women were instrumental in seeking freedom to protect their children, and because their status determined that of their children.One of the earliest petitions on record dates to 1644. A group of eleven petitioners, not including their children, entreated the Council of New Netherland for freedom, based on the claim that it was impossible for them to support their growing families under slavery. The Dutch West India Company released these slaves on a plan of half-freedom; this allowed slaves their liberty in exchange for payment of an annual tributary to the company, and a settlement of African-owned farms developed north of the wall of New Amsterdam. During early America and the first two decades of the colonial period, slavery had not become a racial caste within the area of Dutch authority. The Dutch West India Company freed many slaves between 1644 and 1664, when they lost control of their colony to England. These early petitioners did not base their claim for freedom on ethnicity but on the monetary realities of living in slavery and caring for a family. This line of argument quickly faded from the records.
In 1655, a Virginia court ruled in Johnson v. Casor that John Casor was a slave, and not—as he claimed—an indentured servant, of Anthony Johnson, a free Black man.
In English North America, the colonists considered Africans to be "foreigners" and unable to become English subjects due to being non-Christians. Even after African slaves began to be converted to Christianity in the colonies, their race was used as a justification to override that status. In 1662, Virginia enacted a law that children born in the colony assumed their mother's social status; therefore, children of enslaved mothers were born into slavery, and children of free English subjects were born free. This was contrary to English common law, in which the father's social status determined that of the child. The law was passed after Elizabeth Key, a mixed race woman, had filed for freedom based on her having an English father, who had her baptized as a Christian, and had arranged a guardianship for her and limited indenture before his death. She was held longer and classified as a slave in an estate. She gained her freedom in court in 1656.
This principle from Roman law, known as partus sequitur ventrem, became part of colonial Virginian law and was soon adopted by the rest of the Southern Colonies. But the law also meant that children of free white women and Native American women were born free, even if they were mixed race. Mixed-race descendants of Indian or white women struggled to gain freedom by suing based on their maternal lines. Petitioners focused primarily on proving their right to liberty through hereditary freedom claims.
Suits for freedom during and after the Revolution
During the years leading to the Revolutionary War, there was a rise in freedom suits submitted in Northern states such as Connecticut, Massachusetts, and New Hampshire. Many of these cases referred to the highly significant English case of Somerset v Stewart. The ruling in the Somerset case held that slavery was inhumane and illegal on British soil. Lord Mansfield's opinion in the case was widely read and commented on in the colonies. Slavery, Lord Mansfield ruled, had no basis in "natural law" and could only be maintained through "positive law". As slavery had never been enacted by English law, it did not legally exist in England and no person on English soil could be held in bondage. Slaves in Virginia and Maryland learned of the Somerset decision. In the months and years following, petitioners used it as a weapon against enslavement.Sir William Blackstone, the leading authority on English law and a professor at the University of Oxford, had already published his Commentaries on the Laws of England, in which he laid down the most complete argument to date that slavery was incompatible with free societies. Although admitting that slavery might have a legal basis in the colonial plantation societies of the Atlantic world, Blackstone wrote,
pure and proper slavery does not, nay cannot, subsist in England; such I mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. And indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist any where.
On January 6, 1773, black petitioners submitted the first of five appeals written during the year, asking for a range of rights, to Governor Hutchinson and the General Court of Massachusetts. Though signed only by a slave named Felix, the document petitioned for the freedom and rights of all slaves in the Massachusetts colony. While the tone of the petition is cautious, it speaks to the "unhappy State and Condition" in which enslaved persons are forced to live. Abolitionists later published the petition as a pamphlet, along with letters and other abolitionist documents. Felix's petition expressed the talk of freedom, liberty, and the pursuit of happiness that was circulating around Massachusetts and other American colonies before the American Revolution. No record of a response from the Massachusetts General Court exists. Although slavery was never explicitly abolished or prohibited in the new Massachusetts Constitution after the Revolutionary War, rulings in freedom suits by Mum Bett and Quock Walker established that its representation of rights was incompatible with slavery, and remaining slaves effectively gained their freedom.
With the outbreak of war, thousands of enslaved blacks gained freedom during the Revolution. Enslaved persons during these years found their freedom through military service, petitions for freedom, and manumissions by colonists who believed that "every man is created equal" and manumitted their slaves. By the end of the war, more than 5,000 enslaved African Americans had survived their military service with the Continental Army and joined the new America as free men, vastly increasing the number of free black people in the newly formed states.