April 01, 2021 History and the Law

The Liberty of Black Americans Before the 13th Amendment

Thomas J. Shaw

With racial injustice once more front and center in America, prompting the Black Lives Matter movement, it’s essential to revisit the time when the long journey to citizenship for Black Americans began. It wasn’t from the start of the republic in 1789 but from 1865, with the successive enacting of the 13th, 14th, and 15th Amendments, which respectively freed all Black Americans from slavery, made them citizens, and provided Black men the right to vote.

Founded on securing “the Blessings of Liberty to ourselves,” the Constitution valued enslaved persons as being worth three-fifths of free persons. Its wording led to the Fugitive Slave Acts of 1793 and 1850, interpreted by the Supreme Court to “manifestly contemplate[s] the existence of a positive, unqualified right… of the owner of the slave.” While the Constitution would help end the international slave trade, there was no provision to stop domestic slavery.

Without help from the Constitution and with ferocious battles in Congress over the direction of slavery, the Supreme Court was the one entity that could undermine this evil institution. Under its two longest-serving chief justices, John Marshall (1801–1835) and Roger B. Taney (1836–1864), the court had the ability to weaken enslavement.

So how did it, in the six decades before the 13th Amendment, treat enslaved parties seeking their freedom? In 14 cases before the court, it was neither completely open to the claims of enslaved persons nor a rubber stamp for slaveholders. That is, until the Dred Scott case.

Living in Virginia

In 1806, the case of Scott v. Negro London involved a Virginia statute that freed enslaved persons coming from one of the United States and residing within Virginia for a year, unless the owner took an oath within 60 days of arrival to Virginia not to sell their slaves or bring in recently imported slaves. The owner arrived 11 months after London and took the oath within 60 days of his own arrival. The Supreme Court ruled this sufficient, reversing the lower court, and denying London his freedom.

In Mason v. Matilda, in 1827, Matilda had been enslaved in Virginia for 30 years without proof of any oath being taken. Reversing the circuit court and denying claims that presumptions should be “repelled by the [plaintiff’s] ignorance, impotence, and continued state of duress,” the Supreme Court applied “presumptions from length of time, and continued acquiescence of the party whose rights are implicated” to deny Matilda and her children their freedom.

Proving Free Status

In 1813, Mima Queen v. Hepburn sought freedom for the plaintiff and her child, Louisa. Represented by Star-Spangled Banner lyricist and lawyer Francis Scott Key, who often represented enslaved persons before the Supreme Court, the plaintiff offered three deponents. The first described what he heard his mother say her father had said about Mima’s ancestor, the second what Mima’s ancestor said about her own place of birth, and the third what he heard from others about the importation of Mima’s ancestor.

The Supreme Court rejected these depositions as hearsay. In dissent, Justice Gabriel Duvall said Maryland law had for some time allowed hearsay evidence on petitions for freedom where the ancestor had been long dead. Noting that not allowing such evidence would leave the party without a remedy, he said:

“It appears to me that the reason for admitting hearsay evidence upon a question of freedom is much stronger than in cases of pedigree or in controversies relative to the boundaries of land. It will be universally admitted that the right to freedom is more important than the right of property. And people of color from their helpless condition under the uncontrolled authority of a master, are entitled to all reasonable protection.”

Three years later, in 1816, in Negro John Davis v. Wood, the court refused to allow hearsay evidence to show John Davis’ ancestor had been a white English woman named Mary Davis. The plaintiff had offered to show by testimony and general reputation what older people, now dead, had told witnesses about Mary. The Supreme Court also refused to admit the successful actions by John’s mother Susan and his sister Ary to recover their freedom.

In 1860, in Susan Vigel v. Naylor, Susan tried to introduce evidence that she was freed under the will of her former owner and that her sister Eliza had so won her freedom, but this evidence wasn’t allowed by the circuit court. The Supreme Court contrasted this case, where the defendant was the same as in Eliza’s action, against its decision in Davis v. Wood, where the defendants were different people. It reversed the circuit court and ordered a new trial, ruling that Eliza’s successful action to recover her freedom should be submitted to the jury.

Under Maryland Law

In Negress Sally Henry v. Ball, in 1816, a Maryland statute freed enslaved persons brought into the state for sale or with the owner’s intention to reside. Sally had been hired and taken from Virginia for seven or eight months to the District of Columbia (Maryland law applied to the part of the district ceded by Maryland). The Supreme Court rejected the petition, interpreting Sally’s time to be sojourning, specially excluded as not residing. Also, she wasn’t there with her owner, so the owner could have no intention to reside there.

In 1834, the case of Lee v. Lee concerned the movement of Barbara and Samuel Lee from Virginia to D.C.’s Alexandria County for a short time and then to D.C.’s Washington County. The issue was whether this was done intending to evade the law, since Alexandria County wasn’t covered by Maryland law and the two counties respected each other’s law, meaning the Lees wouldn’t be automatically freed. The lower court ruled the jury couldn’t consider whether the defendant intended to evade Maryland law, but the Supreme Court disagreed and reversed, ordering a new trial.

In Rhodes v. Bell, in 1844, Moses Bell, aged around 55, petitioned for his freedom after he was brought from Alexandria County to Washington County and sold. Among other arguments, the defendant asserted that slaves in Maryland couldn’t be manumitted (freed) if over the age of 45. The Supreme Court ruled that by law there were no such restrictions, saying:

“The law makes him free without the concurrence of his master. Slaves brought into the state of Maryland, in violation of the law, are declared to be free without reference to their age.”

Manumission by Will or Deed

In 1835’s Fenwick v. Chapman, a widow’s will freed her slaves at her death. Despite there being sufficient real property to satisfy her debts, the executor said there wasn’t enough personal property to pay her debts. Maryland law allowed manumission by will, but not to the detriment of creditors, so Eliza and Robert Chapman were sold to a creditor.

The Supreme Court said that listing debt payment before the legacies and devises, including manumission, in a will didn’t mean personal debts couldn’t be settled out of real property. It ruled that such a practice wasn’t to the detriment of any creditors if:

“creditors of the testator must look to the real estate for the payment of debts which may remain unpaid after the personal assets, exclusive of the manumitted slaves, have been exhausted.”

This freed Eliza and Robert.

In Wallingsford v. Allen, in 1836, Sarah Ann Allen petitioned for the freedom of herself and her children: Eliza, Julia, and John. She and two of her children had been manumitted by deed by a wife who soon died. Her husband claimed Sarah and her children as his property. The wife had been given Sarah in exchange for dropping alimony proceedings, initiated due to “her husband’s habitual incontinency with a woman in their own house.”

The main issue was whether the statutory requirement that enslaved persons being manumitted had to “be able to work and gain a sufficient livelihood” would prohibit her children from becoming free. The Supreme Court interpreted the statute as only intending to avoid freeing anyone who would need public assistance. It ruled children couldn’t be excluded because “we cannot hesitate in believing that the object will be accomplished by relying upon those natural affections of a mother for her child,” affirming freedom for Sarah and her children.

In Williams v. James Ash, in 1842, James was to be manumitted by will if he was sold or removed from Maryland. After 15 years, he was sold, so he petitioned for his freedom. The Supreme Court upheld the lower court, ruling that James was free from the time of sale.

In 1844, in Adams v. Julia Roberts, the Supreme Court affirmed the circuit court allowing the jury to consider that Julia was born after her mother Sarah was manumitted by deed, thereby freeing her. In 1847, in Miller v. Betsey and Caroline Herbert, two women petitioned for their freedom. But the Supreme Court ruled that, because the two witnesses had neglected to sign the deed of manumission, it was void and reversed the circuit court, denying freedom to Betsey and Caroline.

The Journey of the Scotts

In 1846, Dred Scott v. Emerson was first filed in state court for the freedom of Scott, his wife Harriet, and their children Eliza and (soon) Lizzie, against the widow of the Army doctor who owned the family. Dred had been taken first to live in the state of Illinois and then he and Harriet to the Wisconsin territory before settling in Missouri. Scott claimed that had freed them under Missouri’s 1824 “Act to enable persons held in slavery to sue for their freedom.”

The claims to freedom were different for each family member. Dred had resided in Illinois, which had banned slavery under its constitution. Dred and Harriet had resided, and were married, in the territory of Wisconsin (later inside the state of Minnesota), where slavery was banned by the Missouri Compromise of 1820 and the Act Establishing the Territorial Government of Wisconsin of 1836. Eliza was born on the Mississippi River in free territory and had also resided in Wisconsin. And Lizzie was born of a purportedly free woman, her mother Harriet.

The statute required asserting a trespass for assault and battery and false imprisonment. Scott eventually won his case in Missouri courts under the principle of “once free, always free.” But that decision was later reversed, 2-1, by newly elected state supreme court judges. The chief justice dissented, claiming this was contrary to long-settled state law:

“in my judgment there can be no safe basis for judicial decisions, but in those principles which are immutable.”

In late 1853, Dred Scott v. Sanford was filed in federal court in Missouri, based on diversity jurisdiction, against the widow’s brother, who was living in New York and claiming ownership of the Scotts. The defendant pled that, as a descendant of African slaves, Scott wasn’t a citizen of Missouri, so the federal circuit court had no jurisdiction. The court ruled the plea insufficient because Scott was a resident of Missouri and so a citizen under Article III. The jury then ruled for the defendant, on the merits, based on the recent state supreme court case.

Scott’s writ of error on this verdict sent the matter to the Supreme Court. In a long opinion by the nearly 80-year-old Taney, in 1857’s Dred Scott v. Sandford, the Supreme Court posed the question before it, even though this issue hadn’t been raised in the appeal:

“can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied [sic] by that instrument to the citizen, one of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution?”

In answer to his question, Taney said:

“We think… that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”

He justified this by saying at the time of the Constitution, Black Americans were:

“regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit”

Taney also referred to them “as articles of merchandise.”

He said that since the only mentions in the Constitution of Black Americans were as property, it was up to the states “to deal with this race.” Because Scott wasn’t considered a citizen of Missouri by being ruled a slave by the state supreme court, nor a citizen of the United States per Taney, the circuit court had no jurisdiction.

Despite having ruled that federal courts had no power to try the case, Taney went further. Starting from his belief that “the right of property in a slave is distinctly and expressly affirmed in the Constitution,” he voided the Missouri Compromise, which prohibited slavery in the territories of the Louisiana Purchase. He said that laws controlling territories not originally ceded by the British were limited by due process to support the constitutional rights of persons and property.

This meant that Scott’s time in the territory of Wisconsin didn’t free him or his family since Congress had no power to make any law interfering with property. Also, citing Strader v. Graham, holding that the law of the state of current residence determined an enslaved person’s rights, Scott’s time in Illinois couldn’t free him after returning to Missouri (despite settled Missouri law at that time making him free).

Justice John McLean, in dissent and responding to the Missouri supreme court deliberately ignoring a federal statute (the Missouri Compromise) and its own established case law for the past 28 years, asked:

“If a State court may do this, on a question involving the liberty of a human being, what protection do the laws afford?”

Justice Benjamin Curtis, in dissent, after demonstrating that there were free Black Americans in many states at the time of the Constitution, said:

“under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States… it is not true, in point of fact, that the Constitution was made exclusively by the white race… [or] for the white race … but [is] contradicted by its opening declaration, that it was ordained and established by the people of the United States, for themselves and their posterity.”

In these 14 cases involving the potential freedom of enslaved parties, the Supreme Court considered varied freedom recovery mechanisms: manumission by will and by deed, residence in a free state or territory, sale in certain states, and proving the free status of ancestors and relatives. The Supreme Court ruled in favor of enslaved parties seven times and against seven times, becoming slightly more favorable to enslaved parties over time (although not to the institution, as the Fugitive Slave Acts and interstate trafficking were consistently upheld).

Yet this hopeful trend was obliterated by the ignominious Dred Scott decision, which necessitated the 13th and 14th Amendments and arguably, sine qua non, the Civil War.

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Thomas J. Shaw 

Thomas J. Shaw is an EU-based American lawyer and the author of 10 books, including: World War II Law and Lawyers, World War I Law and Lawyers, Revolutionary War Law and Lawyers, and shortly a new legal history book.