The Legal Road to Freedom

In 1846 an enslaved black man, Dred Scott, filed suit in a Missouri court seeking his freedom. His case dragged on for a decade before it reached the United States Supreme Court. Chief Justice Roger Taney held that Scott, as a member “of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States.”

We know all too well the catastrophic consequences of this discredited decision. But until recently, we have known comparatively less about the category of freedom suits to which Scott’s case belonged. William G. Thomas III contributes to a growing literature on these suits in A Question of Freedom: The Families who Challenged Slavery from the Nation’s Founding to the Civil War. As with most other treatments of freedom suits, Thomas focuses on a specific subset of cases, notably those filed by individuals enslaved by, or tracing their lineage to, the Jesuit-owned White Marsh plantation in Prince George’s County Maryland.

A strength of Thomas’s work is in his painstaking reconstruction of the biographies and legal histories of several of these families from the Constitution’s ratification until the Dred Scott decision. He begins with Maryland’s mixed-race Butler family who “filed more than ninety suits for freedom, winning every single one of them between 1787 and 1791.” Members of the Queen, Bell, Joice, and Mahoney families would continue to file such suits across several decades. Thomas ably details the complex legal strategies they implemented. In doing so, he demonstrates that members of these families were determined, coordinated, and resourceful in carrying out these strategies. This underscores a recent emphasis in the literature on abolition of the agency of enslaved people in securing their own freedom.

This work also resonates with scholarship challenging the view that the Constitution was, and was intended to be, proslavery. This proslavery critique of the Constitution was introduced in the 1840s by radical abolitionist William Lloyd Garrison, and has been resurrected by Garrison’s modern-day admirers in the historical profession. Thomas’s argument confronts the Garrisonian critique in two key ways. First, he documents widespread antislavery argument and political action during the founding era. This includes recognition of the vigorous denunciations of slavery offered in the Constitutional Convention by Rufus King, Gouverneur Morris, Elbridge Gerry, and Luther Martin, among others. Following the Constitution’s ratification, antislavery societies began to form throughout the union—in Pennsylvania, Delaware, Rhode Island, Connecticut, New York, New Jersey, Virginia, and, as Thomas details, in Maryland. These antislavery societies were led not only by determined Antifederalists like Maryland’s Martin, but also Federalists including Benjamin Franklin, John Jay, and Alexander Hamilton. There was simply no singular proslavery intent shared by the framers of the Constitution.

Second, Thomas also reminds us that slavery at the time of the nation’s founding appeared as an issue of state law more so than constitutional law. He shows how figures we know from their roles in national politics were active in the politics of slavery at the local level. Samuel Chase, who had been one of Maryland’s four signers of the Declaration of Independence, and would later be appointed to the U.S. Supreme Court, served alongside Luther Martin as honorary counsel to the Maryland Abolition Society. Chase was a pioneer in the use of freedom suits, representing the Butler family and others in such cases. This work pitted him against one of his fellow signers of the Declaration from Maryland, Charles Carroll of Carrolton, who owned 365 slaves as of 1790, and who, along with other members of the Carroll family, found himself on the defense in some of these suits.

Indeed, the Carroll family plays a significant role in Thomas’s tale, going back to James Carroll, who at his death in 1729 had conveyed to the Jesuit order 2000 acres, including the White Marsh plantation, along with 33 slaves. Benefactors of the Jesuit order had accumulated vast tracts of land in Maryland through the headright system, which encouraged the peopling of the colonies, including through the importation of indentured servants and slaves. Thomas points out that, between their possessions in North and South America, the Jesuits came to own more slaves (as many as 17,000) than any other entity in the Western Hemisphere. Colonization left Africans locked in conflict with Europeans, but in Britain’s North American colonies, the dawning ideal of freedom would also be locked in conflict with the legacy of feudalism.

Thomas details how Chase joined with other lawyers “to bring freedom suits across the state, especially ones that might expose hereditary enslavement as a feudal legacy.” The complicated consequences of British policy in its former colonies were evident in one of the earliest and most significant freedom suits, Mahoney v. Ashton. In suing for his freedom from a Jesuit priest, Charles Mahoney and his counsel relied on English common law, notably the 1772 decision Somerset v. Stewart. That celebrated case held, narrowly, that an enslaved man who had been born in Virginia and who escaped in England when taken there by his putative owner could not be seized by that owner, on grounds that slavery was inconsistent with English common law and could only be established by positive law. This ruling was understood more broadly as indicating that by virtue of setting foot in England, an enslaved person would become free. Relying on this precedent, Mahoney demonstrated that he was descended from an enslaved woman, Ann Joice, who had been in England in 1680 and was therefore argued to have been free under the Somerset doctrine. The trial was long, tortuous, and inconclusive, but Ashton ultimately signed deeds of manumission for Mahoney and his relations.

If anything, American historians today have too little critical distance when it comes to the legacy of slavery. This is not to deny the pain and injustice and evil in our nation’s history. Instead, it is to remind us that these belong to our history as humans more so than to our history as Americans.

The details of these suits demonstrate the profound complexity of disentangling America’s constitutional promise of freedom from the remnants of colonialism and feudalism. Thomas offers rich detail about the development of antislavery and proslavery arguments in Maryland courts. This promises to complement research into antislavery constitutionalism and draw attention to the simultaneous development of constitutional interpretations that favored slavery.

But Thomas’s argument is as much about the present as it is about the past. During his research, he discovered that his ancestors owned plantations neighboring White Marsh, and that one of those ancestors had defended the Jesuits against several freedom suits. Throughout, Thomas wrestles with “my family’s complicity” in the enslavement of these individuals. In his Prologue and eight brief chapters, he devotes 46 pages (of a book containing 322 pages of text) to this reckoning. His guilt over this discovery is not merely a footnote to the story, it is one of the book’s central themes. The “sudden lack of critical distance” he experienced became central to the book’s method.

“What happened two hundred years ago in our families, and in the nation, may seem distant, but those events are still with us,” Thomas observes. In his ambition to remove our critical distance from those events, he points out to us that we live in “mythical narratives” and reveals those narratives “as broken, as ruptured, as somehow incomplete.” He offers his work as a way of somehow repairing that brokenness, healing those ruptures, and giving completion to the promise that all men are created equal. How could one object to this hope of a world in which the painful legacies of history have passed away, and bring us no more mourning or tears or pain? But then how could one place their hope for a reconciliation of such terrible injustices, and a redemption of the brokenness of the world, in the mere act of historical interpretation? Such a narrative would be mythical indeed.

If anything, American historians today have too little critical distance when it comes to the legacy of slavery. This is not to deny the pain and injustice and evil in our nation’s history. Instead, it is to remind us that these belong to our history as humans more so than to our history as Americans. Slavery is not unique to American history. The repudiation of slavery is. Just three decades after Americans asserted the principle that all men are created equal, the United States and Great Britain criminalized a global trade in slaves that had gone on for centuries. Shortly thereafter, Americans would reject Roger Taney’s proposition to embrace more fully the proposition that all men are created equal—and they would do so at the cost of more lives than were lost in World War I, World War II, Vietnam, Korea, and every other American military conflict combined.

We lose sight of this profound truth of American history because we have been gripped by a perverse anti-myth—that of the proslavery Constitution. This anti-myth was created by none other than Roger Taney but was turned into an article of historical faith by William Lloyd Garrison. It has since been renewed by historians who follow Garrison in their false prophecies of America’s exceptional guilt. Thomas deserves credit for challenging the simplistic mythical narrative of the proslavery Constitution with a careful assessment of the ways in which antislavery and proslavery arguments developed in local and state legal proceedings. And while nothing may assuage the shame he feels at the discovery of his family’s complicity in slavery, he may take pride that the abolitionist sentiment at the founding of the New England Anti-Slavery Society has come to pass, that the spirit of antislavery is “the very genius of our country. The whole American people ought to be an Anti-Slavery Society. This is the very first principle upon which our government is built.”