Suing for Freedom

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Suing for Freedom

The 1857 United States Supreme Court case of Dred Scott v. Sandford was the seminal case involving a slave's right to sue. The plaintiff, a slave named ofDred Scott, sued for his freedom on the grounds that his owner took him from Missouri, where slavery was legal, to present-day Minnesota (formerly in Louisiana territory), where slavery was banned by the Missouri Compromise of 1820. Scott's owner then took him back to Missouri. Scott argued that his residence in a free territory made him a free person. The Court ruled that slaves and African Americans did not have a right to freedom and reasoned that:

The people of the Negro race … are not included, and were not intended to be included, under the words "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.

However, the Dred Scott case was an aberration from the common and widely accepted practice of permitting slaves to sue for their freedom.

Prior to the Dred Scott case, a suit for freedom was the only type of case in which a slave could appear as a plaintiff in many states. Cases of assault, battery, and cruelty were brought in the name of the owner, the state, or the United States. In the trial of Henry W. Allen, a U.S. deputy marshal, for kidnapping of a slave, defense counsel George F. Comstock summarized in his closing argument the various protections slaves enjoyed when bringing freedom suits:

I believe there is not a slave State where a person held to service as a slave, but claims to be free, may not bring his suit for freedom. In all the slave States there are humane and liberal systems of legislation on that subject. According to my information, when the supposed slave sets up his claim to freedom, every facility is afforded him for a fair adjudication of the question. The master is required to give bonds for the appearance both of himself and of the alleged slave, and that he will not remove the slave from the jurisdiction of the Court where the suit or proceeding is being instituted. Counsel are appointed for the slave at the public expense, and the officers of the law are required to render him all facilities for the prosecution of his suit, free of charge. It should be stated, moreover, what I believe to be strictly true, that in all the slave States there is no public sentiment, no prejudice or bias, which prevents a perfectly fair and impartial trial (Allen 1852, p. 65).

As far back as 1712, a South Carolina act provided that "any negro, mulattoe, mestizoe, or Indian" who claimed he should be free "shall be officially heard and determined by the governor and council of this province" (Hurd 1858–1862, vol. 1, p. 299). In 1740 a North Carolina statute gave the courts of Common Pleas jurisdiction to hear freedom suits brought by "any negro, Indian, mulatto, mustezo, or any person or persons whatsoever, on his or her behalf." (ibid., p. 303). In 1760, a Delaware statute granted the courts of Common Pleas jurisdiction to hear the cases of slaves who asserted their right to freedom. If the slave was found to be entitled to freedom, he or she would be "discharged from the service" and such judgments were enforceable by the sheriff (ibid., pp. 292-293). A Mississippi law enacted on June 18, 1822, "reduced into one the several acts concerning slaves, free negroes, and mulattoes" (ibid., pp. 146-147). The consolidated act provided remedies "for persons conceiving themselves unlawfully held," outlined penalties against persons aiding in the prosecution of a suit for freedom where the plaintiff failed to establish his or her claim, and prohibited members of emancipation societies from being jurors in freedom suits (ibid., 146-147).

Slaves who challenged their legal status in these "freedom suits" were protected from being sold by their owners while the litigation was pending. In order to ensure that slave plaintiffs suing for their freedom were produced at trial, Tennessee enacted a law in 1817 that required slave owners to give bonds if the probability of the slave's freedom was shown by affidavit or otherwise. In the 1824 case of Rebecca et al. v. Pumphrey, the U.S. Circuit Court for the District of Columbia stated that if there was "an apprehension that the defendant will sell and remove the petitioners from the jurisdiction of the court" (Allen, p. 235), an injunction would be issued to keep a slave in the jurisdiction where his suit for freedom was being brought. In cases where the defendants had attempted to remove the petitioner slave after being given notice of the suit, the judge would order a marshal to take the slave for safekeeping until the owner posted a security. If the owner refused to post a security and judgment was rendered against him, the marshal's expenses incurred in keeping the slave would be taxed to the owner and added to the judgment against him (Allen, p. 235).

Slaves challenging their legal status in court were required to overcome certain legal presumptions and assume certain burdens of proof. In the 1810 case of Davis (a man of color) v. Curry, the court held that "color and long possession are such presumptive evidences of slavery, as to throw the burden of proof on the party claiming his freedom" (Wheeler 1837, pp. 5-6). The court denied Davis's petition for freedom on these grounds. The case of Hook v. Nanny Pagee and Her Children involved a white woman, Nanny Pagee, who alleged that she was a free woman and not a slave. Not only did the court accept the widely held principle that "in the case of a person visibly appearing to be of a slave race, it is incumbent on him to make out his freedom," but it also opined that "in the case of a person visibly appearing to be of a free race, it is required of his adversary to show he is a slave" (ibid., p. 22). The Hook court also reasoned that a person's maternal line determines his or her legal status, stating:

the said Plaintiff, Nanny Pagee, is a white woman; and this is quite sufficient, it being incumbent on the defendant to have proved, if he could, that the plaintiff was descended in the maternal line from a slave. Having not proved it, she and her children must be considered as free (ibid., p. 22).

Slaves and their advocates successfully advanced several types of arguments in their judicial quests for freedom. For example, legal documents such as wills, contracts, and deeds often provided the basis upon which a slave's freedom was both challenged and granted. In 1810 a deed given to a New York slave several years before by a former owner served as the basis for his entitlement to freedom, despite his having been sold during the lifetime of the original owner. The deed freed him or her after the owner's death, "in spite of all bills of sale or last will by him thereafter to be made" (Adams 1908, p. 234). In the 1811 case of Kettletas v. Fleet a court held that a master's written promise to free his slave in eight years "on account of faithful service" was enforceable against the master (ibid., p. 234).

Slaves also argued that they were entitled to freedom by virtue of having been born to a free woman—even where the woman was subsequently enslaved. One such case, covered in an 1852 article in the Vermont Chronicle, involved fifteen or sixteen slaves consisting of the children and grandchildren of a woman who was born free, kidnapped, and then enslaved. Her brother bought her freedom and sympathizers in Hartford, Connecticut, raised money to represent the woman's children and grandchildren in their suit for freedom. The article pointed out that "the law in all the slave States is, that children follow the condition of the mother, so that the offspring of a free woman, even if the father be a slave, are legally born free" (ibid., p. 143). The article's writer opined that the former slave's children and grandchildren were all entitled to their freedom based on the above-articulated principle, and that the brother would be able to recover the money wrongfully taken from him in exchange for his sister's freedom (ibid., p. 143).

In many states, it was illegal to sell slaves out of the state unless such a sale was ordered by a court. A North Carolina slave who was purchased from an owner in Delaware sued for and won his freedom in 1852 based on his owner's violation of such a statute.


Adams, Alice Dana. The Neglected Period of Anti-Slavery in America (1808–1831). Boston, 1908.

Hurd, John C. The Law of Freedom and Bondage in the United States. 2 vols. Boston, 1858–1862.

"Interesting Suit for Freedom." Vermont Chronicle, September 7, 1852, col. C.

"Suit for Freedom." Frederick Douglass' Paper, November 5, 1852, col. F.

Trial of Henry W. Allen, U.S. Deputy Marshal, for Kidnapping: With Arguments of Counsel and Charge of Justice Marvin, on the Constitutionality of the Fugitive Slave Law, in the Supreme Court of New York. Syracuse, 1852.

Wheeler, Jacob D. A Practical Treatise on the Law of Slavery: Being a Compilation of All the Decisions Made on That Subject, in the Several Courts of the United States, and State Courts. New York, 1837.

                                      Jodi M. Savage