Slave women, county courts and the law in the United States South: a comparative perspective

Abstract

This article provides an analysis of how slave women, during the period from the American Revolution to the Civil War, filed civil suits for their freedom in the county courts. The cases occurred primarily in the Upper South. It is argued in this article that it was only as property – being part of an estate, cited in an deed of indenture, freed in a last will and testament, being imported into a state against the law, living with their owners or their owners' knowledge in free territory – that slaves were permitted to file such suits; but when they did, they were often successful, in large measure due to talented lawyers. This article also compares the legal process of manumission in the United States South with emancipation in other slave societies in the Americas, suggesting that the experience in the United States was in many ways unique. The article concludes with a brief comparison of the suits for freedom brought by women and those brought by men, offering data to reveal that there were more similarities than differences between the genders.

Keywords:

• slavery
• courts
• freedom suits
• women
• United States

Acknowledgements

Marguerite Ross Howell was extremely helpful in compiling the statistical data shown in the Appendix. Nicole Mazgaj improved the manuscripts greatly by critiquing and suggesting revisions of the final draft. The author expresses his thanks for comments and criticisms offered by two anonymous readers as well as scholars and members of audiences at a number of conferences, seminars and public lectures: Slavery, Citizenship & the State Conference held by the Institute for the Study of Slavery, Nottingham, England (2006); Law Seminar, Renvall Institute of North American School of Law, University of Helsinki, Finland (2007); Graduate Seminar, Department of History, University of Cambridge, England (2007); Student Association, University of Oslo, Norway (2007); Seminar, History Department, University of Uppsala, Sweden (2007); Fulbright Lecture, University of Uppsala, Sweden (2007); Graduate Seminar, Department of American and Canadian Studies, University of Birmingham, England (2007).

Notes

 1. Petition of Polly Anderson and James Burnett to the Circuit Superior Court of Chesterfield County, Virginia, 22 October 1835, in Ended Chancery Court Causes, Polly Anderson and James Burnett v. Edward B. Elam, William Watts, and Robert White, Box/Drawer 446, Entry Folder A 1842, Library of Virginia, Richmond, Virginia [hereafter LVA]; Related Documents: Court Record, February 1836–18 January 1842; Injunction, 24 October 1835; Notice, James Burnett, 18 October 1836; Depositions, Jordan Martin, Elizabeth Johnson, Elizabeth J. Elam, 21 October 1836; Answer, Edward B. Elam, 21 October 1836; Order of Execution and Sheriff's Return, 20 April 1836; Subpoena, 5 April 1836, with ibid. Injunction granted. Petition Analysis Record [hereafter PAR] #21683503. The PAR number following each case in this essay points the reader to the location of the case in the Race and Slavery Petitions Project's 151-reel microfilm collection published by Lexis Nexis of Bethesda, Maryland. The microfilm edition has seven guide/indexes, totaling about 4000 pages, located in part or in total at a number of research libraries. In the interest of preserving space, subsequent citations from this collection will not include references to related documents as in note 1 (i.e. subpoenas, injunctions, depositions, sheriff's returns, deeds, wills, answers, indentures, etc.). The cases come from 120 counties in the states cited in the Appendix. The records are part of a larger collection of 14,512 county and parish civil suits in the Slavery Petitions Project files, selected to represent a topical and geographical diversity within each state. See: Schweinger, ed., Howell and Mazgaj, asst eds, The Southern Debate Over Slavery, Vol. 2, 357–59.

 2. Robertson and Robinson, “Re-Modeling Slavery as if Women Mattered”, 253; Follett, “Gloomy Melancholy: Sexual Reproduction among Louisiana Slave Women, 1840–60,” 56; Cowling, “Negotiating Freedom: Women of Colour and the Transition to Free Labour in Cuba, 1870–1886,” 377–91; , “Enslaved Women and the Law,” 305. See also idem, “Status without Rights,” 365–93.

 3. Many historians and legal scholars have touched on the issues raised in these petitions, primarily through an analysis of state slave codes and appellate/criminal cases. There is no study examining slave litigants in the county courts during the period under consideration. To cite even a small portion of the general literature would take many pages. See the works of T. Stephen Whitman, Judith Kelleher Schafer, Philip J. Schwarz, Christopher Waldrep and Donald G. Neiman, Thomas D. Morris, A. E. Keir Nash, Daniel Flanigan, Andrew Fede, and Charles B. Dew, among others.

 4. In this study, the Upper South includes Delaware, Maryland, District of Columbia, Virginia, North Carolina, Kentucky, Tennessee and Missouri; the Lower South includes South Carolina, Georgia, Florida, Alabama, Mississippi, Arkansas, Louisiana and Texas.

 5. Williams, Slavery and Freedom in Delaware 1639–1865, 150; Pattison, The Life and Character of Richard Bassett, 9.

 6. Petition of Mary Queen, Charles Queen and Elizabeth Queen to the County Court of Charles County, Maryland, 1 May 1808, in Schweninger Collection [hereafter SC], Mary Queen, et al., v. Charles Neale, Microfilm M 11014, Frame 24, Volume #4239–3, Case #13, Maryland State Archives, Annapolis, Maryland [hereafter MSA]; Dismissed; appealed. PAR #20980806. For Virginia, see Schweninger, “The Vass Slaves,” 465–97. For Missouri and McGirk, see Petition of Winney, Jerry, Daniel, Jenny, Nancy, Lydia, Sarah, Hannah, Lewis, and Malinda to the Superior Court of St Louis County, Missouri, June 1818, in Records of the Circuit Court, Civil Courts Building, St Louis, Missouri; Certified Copy of Petition and Related Documents found in Supreme Court Cases, Box 541, Case #18, Supreme Court Opinion, November 8, 1824, Missouri State Archives, Jefferson City, Missouri [hereafter MoSA]. Granted; plea of trespass filed, granted, appealed, affirmed. PAR #21181801.

 7. Schafer, Becoming Free, Remaining Free, 15, 22.

 8. Franklin and Schweninger, In Search of the Promised Land, 54, 91, 269.

 9. For Francis Scott Key, see http://www.govtrack.us/congress/record.xpd?id = 110–h20070710–34, accessed January 28, 2008; United States Manuscript Population Census [hereafter USMSPC], Washington, DC, Georgetown, 1820, 7. The census return listed Key as possessing four slaves.

10. USMSPC, Isle of Wight County, Virginia, 1810, p 26 [Richard Bird headed a household that included 48 slaves]; USMSPC, Greenville County, Virginia, 1860, 1 [Richard Chambliss also owned 48 slaves]; USMSPC, Dinwiddie County, Petersburg, Virginia, 1830, 85–6; USMSPC, Dinwiddie County, Virginia, 1840, 9–10; USMSPC, Petersburg (Independent Corporation), Virginia, 1850, 120–1; United States Manuscript Slave Census [hereafter USMSSC], Dinwiddie County, Virginia, Northern District, 1850, 15; USMSPC, Petersburg (Independent City), Virginia, West Ward, 1860, 88; USMSSC, Petersburg (Independent City), Virginia, West Ward, 1860, 9 [David May owned between 12 and 17 slaves]; USMSPC, Halifax County, Virginia, 1820, 8 l; ibid., Halifax County, Virginia, 1840, 35–6; ibid., 1850, 113; USMSSC, Halifax County, Virginia, Northern District, 1850, 71–2; USMSPC, Halifax County, Virginia, Northern District, 1860, 98 [in 1850 Richard Logan owned 113 slaves]. Petition of Jane to the Superior Court of Sussex County, Virginia, June 11, 1836, found in Records of the Circuit Superior Court of Chancery, Petersburg, Jane v. Thomas Hunt, Jeremiah Cobbs, and Lewis Lanier, Box/Drawer 38–40, Circuit Court Clerk's Office, Petersburg, Virginia. Granted. PAR #21683629. Schweninger, “The Vass Slaves,” 471.

11. Farham, ed., Chapters in the History of Social Legislation in the United States to 1860, 214, 420–1 [Delaware], 363–4 [Maryland], 403 [Virginia] 420–1; Laws of the State of Delaware, From the Fourteenth Day of October, One Thousand Seven Hundred, to the Eighth Day of August, one Thousand Seven Hundred and Ninety-Seven, 2 vols. (New-Castle: Samuel and John Adams, 1797), 2:884–5.

12. Acts Passed at a General Assembly of the Commonwealth of Virginia, Begun and Held at the Capitol, in the City of Richmond, on Tuesday, the Tenth Day of November, One Thousand Seven Hundred and Ninety-five (Richmond: Augustine Davis, 1796), 16–17; Hurd, John Codman. The Law of Freedom and Bondage in the United States, 2 vols (Boston: Little, Brown, 1862; Reprint, New York: Negro Universities Press, 1968): 2:6; Acts Passed at a General Assembly of the Commonwealth of Virginia, Begun and Held at the Capitol, in the City of Richmond, on Monday the Fourth Day of December One Thousand Seven Hundred and Ninety-seven (Richmond: Augustine Davis, 1798), 5; Digest of the Laws of Virginia, Which Are of a Permanent Character and General Operation; Illustrated by Judicial Decisions (Richmond: Smith and Palmer, 1841), 869–71. The lack of strictness “as to form” meant that when such an action was brought, the declaration of trespass and assault, formal in other cases, could in these instances be informal.

13. Phillips, Freedom's Port, 35–6. For laws regarding kidnapping free blacks, see Farham, ed., Chapters in the History of Social Legislation, 379 [North Carolina 1779 and 1800], 404 [Virginia, 1788], 421 [Delaware, 1793], 352 [Kentucky, 1823]; 394 [Tennessee, 1826]. The laws prescribed harsh penalties, including prison sentences, physical chastisements, and, during the early years in North Carolina and Virginia, the death penalty.

14. Farham, ed., 130 [Northwest Ordinance]. As early as 1662, Virginia passed a law concerning slave children taking the status of the mother. Hennings, William, ed., The Statutes at Large Being a Collection of All the Laws of Virginia, vol. 2 (Richmond: Samuel Pleasants, 1832), 170; Stampp, The Peculiar Institution, 193.

15. Petition of Lemman Dutton and Grace Dutton to the Circuit Court of St Louis County, Missouri, July 12, 1834, in Records of the Supreme Court, Case Files, Lemman Dutton and Grace Dutton v. John Paca, Box/Drawer 545, Document/Case #22, MoSA. Petition granted; plea of trespass filed, granted, appealed, reversed and remanded. PAR #21183406.

16. Petition of Patience, Juliet, Levin, George, Rhoda, Arthur, Nathan, Peggy, and David to the County Court of Somerset County, Maryland, April 23, 1825, in SC, Patience, Juliet, Levin, et al. v. Isaac Morris, Joshua Morris, John Morris, Isaac Morris, John Laws, and Benjamin Vincent, Microfilm M 11014, Frame 11, Volume #4239–1, Case #8, MSA. Granted; appealed; affirmed. PAR #20982503.

17. Petition of Malinda and her daughter Mary Ann to the Chancery Court of Davidson County, Tennessee, 9 July 1853, in Records of the Chancery Court, Case Files, Malinda and Mary Ann v. Elizabeth Smith, Box/Drawer 10, Document/Case #1048, Metropolitan Nashville-Davidson County Archives, Nashville, Tennessee. No decree with petition. PAR #21485324.

18. The will was dated 1821. Slaves sometimes ended up in distant locations. In this case the slaves’ owner lived in Tennessee but the black people ended up in Alabama, a state, like others in the deep South, where slaves were not allowed to file suits except in a few anomalous instances. Petition of Harriett to the Circuit Court of Shelby County, Alabama, 24 January 1857, in Records of the Circuit Court, Estate Papers, Harriett v. Alexander Nelson, Box 31, Case #34, #34A, Shelby County Archives, Columbiana, Alabama. No decree with petition. PAR #20185722.

19. Petition of Helen to the Circuit Court of Washington County, Washington, DC, September 24, 1825, in Records of the United States Circuit Court, Chancery Dockets and Rule Case Files [hereafter RUSCC, CDRCF], Helen v. Henry Drain, Record Group 21, Rules #2, Box 31, Entry Folder 20, Case #130, National Archives [hereafter NA]. Granted. PAR #20482501.

20. See Petition of Catherine Henderson and Benjamin Henderson to the Circuit Court of Washington County, Washington, DC, December 9, 1833, in RUSCC, CDRCF, Catherine Henderson and Benjamin Henderson v. Harriet Loyed and Mr. Freeman, Record Group 21, Rules 3, Box 41, Entry Folder 20, Case #274, NA. Granted. PAR #20483302. Petition of Charity, Mary, and Kitty to the Equity Court of Montgomery County, Maryland, October 10, 1818, in SC, Charity, Mary, and Kitty v. Adam Robb, Henry Lansdale, and Alexander Robb, Microfilm M 11024, Frame/Pages 1, Volume #4239–25, MSA. Partially granted: subpoena and injunction issued. PAR #20981813.

21. Petition of Mariah Cole by her next friend Warner Mifflin to the Common Pleas Court of Kent County, Delaware, 1800, in Records of the Court of Common Pleas, Mariah Cole v. Silvia Sipple, Microfilm Reel 1, Frames 286–87, DSA. Subpoena issued. PAR #20380016.

22. Petition of Mary to the District Court of East Baton Rouge Parish, Louisiana, June 5, 1832, in Records of the Third Judicial District Court, Mary v. Leroy C. Morris and Jerry Morris, Case #1,927, East Baton Rouge Parish, Clerk of Court Archives, Baton Rouge, Louisiana. Granted; appealed; reversed. PAR #20883220.

23. Petition of Nancy, James, Mahala, Emeline, Abraham, Elizabeth, Jessee, and Francis Rogan to the Chancery Court of Sumner County, Tennessee, March 10, 1843, in Records of the County Court, Loose Record Lawsuits, Nancy, James, et al. v. James Mahan, Case #393, TSLA; Related Documents: PAR #21484331; Oath, Nancy, 9 March 1843. No decree with petition. PAR #21484330. Petition of Rachel Bell to the Circuit Court of Woodford County, Kentucky, September 16, 1850, in Records of the Circuit Court, Case Files, Rachel Bell v. Archibald Williams, William Bullock, Elenor Bullock, and Benjamin Luckett, Box 128, Kentucky Division of Libraries and Archives, Frankfort, Kentucky [hereafter KDLA]. Granted. PAR #20785022.

24. Petition of Phillis Thomas, Mary Thomas, Sarah Thomas, Harry Thomas, Charles Thomas, Ann Thomas, Moses Thomas, William Thomas, George Thomas, John Thomas, Elizabeth Thomas, Ester Thomas, and Rachael Thomas to the Circuit Court of Jefferson County, Kentucky, March 27, 1822, in Records of the Circuit Court, Case Files, Phillis Thomas, et al. v. James Burks, Box 1–25, Case #1842, KDLA; Dismissed. PAR #20782204. Petition of Mary, Patsey, Thomas, and Joseph to the District Court of Concordia Parish, Louisiana, March 9, 1849, in Supreme Court of Louisiana Collection, Mary, et al. v. Daniel L. Broom, Book #1,640, Case #1,366, University of New Orleans. Granted; appealed; reversed on jurisdictional grounds. PAR #20884944.

25. Petition of Betty to the General Court of St Louis District, Missouri, October 4, 1810, in Records of the Supreme Court, Case Files, Betty v. Joseph York, Case #27, MoSA. Petition granted; plea of trespass filed. PAR #21181001. For residency in France, see: Petition of Priscilla Smith to the Parish Court of Orleans Parish, Louisiana, January 23, 1837, in Supreme Court of Louisiana Collection, Priscilla Smith v. Mrs. Smith, Book #3,314, University of New Orleans. Denied; appealed. PAR #20883742.

26. Petition of Phillis Thomas, Mary Thomas, Sarah Thomas, Harry Thomas, Charles Thomas, Ann Thomas, Moses Thomas, William Thomas, George Thomas, John Thomas, Elizabeth Thomas, Ester Thomas, and Rachael Thomas to the Circuit Court of Jefferson County, Kentucky, March 27, 1822, in Records of the Circuit Court, Case Files, Phillis Thomas, et al. v. James Burks, Box 1–25, Case #1,842, KDLA. Dismissed. PAR #20782204.

27. Petition of Henrietta Bell to the Circuit Court of Jefferson County, Kentucky, December 19, 1827, in Records of the Circuit Court, Case Files, Henrietta Bell v. James Cummins, Box 1–12, Case #900, KDLA. Dismissed. PAR #20782721.

28. Petition of Winney, Jerry, Daniel, Jenny, Nancy, Lydia, Sarah, Hannah, Lewis, and Malinda to the Superior Court of St. Louis County, Missouri, June 1818, in Records of the Circuit Court, Winney, et al. v. Phebe Whitesides, Representatives of Thomas Whitesides, John Whitesides, Robert Musick, Isaac Votean, John Butler, and Michael Hatton, Case #190, Civil Courts Building, St Louis, Missouri. Granted; plea of trespass filed, granted, appealed, affirmed. PAR #21181801.

29. Petition of Priscilla Smith to the Parish Court of Orleans Parish, Louisiana, January 23, 1837, in Supreme Court of Louisiana Collection, Priscilla Smith v. Smith Mrs., Book # 3,314, University of New Orleans. Denied; appealed. PAR #20883742. [Text is in English and French; French version incomplete]. See Peabody, “There are no Slaves in France”, 3–10; Peabody and Grinberg, Slavery, Freedom, and the Law in the Atlantic World.

30. Petition of Catherine to the Parish Court of Orleans Parish, Louisiana, April 24, 1819, in Records of the Parish Court, Catherine v. Simon Gallien Preval, Microfilm Reel #19, Louisiana Collection, Document/Case #2,129, New Orleans Public Library. Partially granted: complaint served on defendant. PAR #20881909. Petition of Delphine to the District Court of Orleans Parish, Louisiana, 17 December 1823, in Supreme Court of Louisiana Collection, Delphine v. Raymond Deveze, Book # 996, University of New Orleans. Granted; appealed. PAR #20882326.

31. Petition of Jack Butler, Mary Coti Butler, Julia Butler, Jean Baptiste Butler, Marie Elizabeth Butler, Genevieve Butler, Eleonore Butler, and Sarah Butler to the District Court of St. James Parish, Louisiana, November 20, 1823, in Records of the Second Judicial District Court, Jack Butler, et al. v. Alexander Chapdue, Case #109, St. James Parish Courthouse, Convent, Louisiana. Granted. PAR #20882321.

32. Petition of Harriett Scott to the District Court of St Landry Parish, Louisiana, May 16, 1829, in Records of the Fifth Judicial District Court, Harriett Scott v. George Jackson, Case #1,514, St Landry Parish Courthouse, Opelousas, Louisiana. Dismissed; revived; granted. PAR #20882912.

33. , “Slaves, Freedmen and the Politics of Freedom in Brazil,” 65; idem, “The Politics of Silence: Race and Citizenship in Nineteenth-century Brazil,” Slavery and Abolition, 27 (April 2006): 73–87; Grinberg, Keila, “Freedom Suits and Civil Law in Brazil and the United States,” Slavery and Abolition 22 (December 2001): 66–82.

34. , “Slave Law and Claims-Making in Cuba, 12; idem., “Slaves and the Creation of Legal Rights in Cuba: Coartación and Papel,” 4, found at http://clhc.usc.edu/archives/workshops/documents/delafuente.pdf, accessed July 15, 2008; Scott, Slave Emancipation in Cuba.

35. Moitt, Bernard. “Freedom from Bondage at a Price: Women and Redemption from Slavery in the French Caribbean in the Nineteenth Century.” Slavery and Abolition 26 (August 2005): 247–8; Cottias, Myriam. “Gender and Republican Citizenship in the French West Indies, 1848–1945.” Slavery and Abolition 26 (August 2005): 233–45.

36. Catterall, Helen, ed. Judicial Cases Concerning American Slavery and the Negro, 5 vols (Washington, DC: W. F. Roberts, 1932), 1:157.

37. Morgan, “Slave Women and Reproduction in Jamaica, ca. 1776–1834,” 29; Follett, “Floomy Melancholy,” 55–6.