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Remembering the Enslaved Who Sued for Freedom Before the Civil War

Eleven years: That’s how long it took after the enslaved Dred Scott brought his first lawsuit for freedom in Missouri, where he was held in bondage, for the Supreme Court to hand down its notorious verdict in 1857. Black people, Chief Justice Roger B. Taney declared, “had no rights which the white man was bound to respect.”

Scott showed that he had lived with his enslavers for a while on the free soil of Illinois and Wisconsin Territory — an emancipatory event, his lawyers argued, according to precedent. But what was at issue wasn’t the evidence. Taney was effectively saying that the evidence was immaterial. As the historian William G. Thomas III explains in “A Question of Freedom,” the Dred Scott decision “denied Black citizenship and gave slaveholders blanket authorization to take slaves into any state or territory in the United States.” It rejected the very idea that Scott was a legal person under the Constitution with standing to sue in the first place.

Dred Scott is one of the few freedom suits that are familiar to Americans by name, but Thomas makes only passing reference to it. He devotes the rest of his book to the seven decades that preceded the decision, tracing the stories of several enslaved families in Maryland’s Prince George’s County through the generations. Altogether, the county’s families pursued more than a thousand freedom suits, a number of them successful. The defendants included prominent slaveholders, among them priests belonging to the Jesuit order, which happened to hold some of the largest plantations in the United States.

It’s a rich, roiling history that Thomas recounts with eloquence and skill, giving as much attention as he can to the specifics of each case while keeping an eye trained on the bigger context. The very existence of freedom suits assumed that slavery could only be circumscribed and local; what Thomas shows in his illuminating book is how this view was eventually turned upside down in decisions like Dred Scott. “Freedom was local,” Thomas writes. “Slavery was national.”

He starts with early freedom suits involving the Butler family, which traced its ancestry to a free white woman from Ireland who arrived in the colony in 1681, as an indentured servant. The complexity of what followed reflected the convolutions and contradictions of the law. She married an enslaved man, which meant — according to the Maryland legislature at the time — that she became enslaved, too. That law was overturned, and two of her grandchildren filed suits in 1770; they lost their initial favorable decision when their enslavers appealed. After the Revolution, Butlers from the next generation filed suits — in this instance winning their freedom, along with hundreds of pounds of tobacco in damages. “Slaveholders,” Thomas writes ominously, “took notice.”

Credit…Craig Chandler/University Communication

Thomas guides us through other cases that wended their way through the circuitous legal system, along with the reactions of the slaveholding class. Successful suits made enslavers panic. Their attitudes became more virulent, their justifications more totalitarian and extreme. Fearful of slave revolts, enraged by the abolition of slavery in France and Britain, they saw themselves and their wealth as everywhere besieged.

While some enslaved plaintiffs had argued for their freedom based on the free status of an ancestor, skin color became increasingly used as an excuse to decide against them. Thomas describes how judges, lawyers and juries started focusing on plaintiffs’ physical appearances, whether to sow confusion over claims of white ancestry or to assert that being Black was itself a determinant of enslavement.

Thomas explains that seemingly technical questions about evidence and procedure implicitly turned on the fundamental question of freedom. Hearsay, for example, was admissible in Maryland courts, providing a way for enslaved plaintiffs to offer evidence of their ancestry when a paper trail didn’t exist. In 1813, when the Supreme Court under Chief Justice John Marshall deemed hearsay inadmissible in an appeal brought by Mina Queen, an enslaved woman, it was handing a victory to the slaveholding class — of which Marshall was decidedly a member. Marshall personally held more than 150 people in bondage, and was perpetuating a particular, and particularly self-serving, worldview: Plaintiffs like Queen were to be presumed enslaved instead of free.

“A Question of Freedom” also includes the bizarre story of John Ashton, a Jesuit priest and plantation manager who was named as a defendant in freedom suits. He became so estranged from the Jesuit order that he started freeing slaves — less out of newfound magnanimity, it seems, than out of spite. Ashton was rumored to have fathered children with an enslaved woman, Susanna Queen; he named two of her children as beneficiaries in his will. But, as Thomas reminds us, “we do not know from the record what Susanna Queen thought of the situation she faced.” Ashton was “a man who had in all likelihood assaulted and raped her” when she was a teenager.

Throughout “A Question of Freedom,” Thomas is candid about his personal connection to this history. The last Queens enslaved in Maryland were held by the Ducketts, a branch of his family. When the Ducketts moved from Prince George’s County to the District of Columbia, they “brought with them the inheritances of many generations,” he writes. “None was more insidious than their presumption of racial superiority.”

There was another kind of inheritance too, Thomas says, one that the enslavers assumed belonged solely to them: “The law, controlled by whites, had upheld the legitimacy of enslavement, granting formal authority to a fragile dominion repeatedly challenged by those they enslaved.”

Those challenges suggested that the enslavers could only hoard the law for themselves by deforming it. “Deployed for a higher purpose and in the right hands, those of enslaved people,” Thomas writes, “the law testified to an inheritance of freedom.” Slavery, Frederick Douglass said, “never was lawful, and never can be made so.”

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