Talk to the American Dream

Dear Friends:


When slavery was legal in America, there was an entire body of law devoted to the subject, including statutes and case law. Litigation arose over slaves just as there is litigation over anything else in America.


I am contemplating creating a Facebook page where I will feature summaries of court decisions concerning slavery. By commenting below, let me see how much interest there is out there.
Here is a sample, in which eight slaves who were supposed to have been freed by the last will and testament of their owner were instead kept in slavery by the executors, and sued for their freedom:
PETERS v VAN LEAR, Court of Appeals of Maryland, December 1846 (4 Gill 249)

This was a lawsuit brought by eight Black slaves -- Cœsar Peters, Thomas Clemens, Alexander Clemens, Henry Jones, Isaac Clemens, Nathan Mingo, Margaret Pierce, and Sophia Clemens, who resided in Washington County. They were owned by Mary Van Lear, who died in 1828, leaving a will.


One of the provisions in Mrs. Van Lear's will provided as follows: "It is my will, and I do hereby order and direct my said executors to manumit [set free], by deed, all the slaves which may be mine at the time of my death, whose age and health may be such, as that their manumission may not be prohibited by law, leaving it in the discretion of my said executors to carry this clause into effect, at such time or times as they may judge expedient and proper.”


Despite the fact that Mrs. Van Lear directed her executors to free her slaves after her death, fourteen years passed and they did not do so; instead, they continued to hold the eight plaintiffs in bondage.
In their lawsuit, the plaintiffs pleaded "That the best part of the life of many of [the plaintiffs], when freedom would be of most value to them, is wearing away; and that the said executors have retained, and do still retain, [us] in servitude, for their own profit and emolument, which [we] charge is contrary to good faith, and the kind and benevolent intentions of [Mrs. Van Lear]; ... that [we] may be decreed to be free and discharged from slavery; that the executors... may be required to execute to [us] deeds of manumission; that they may be allowed... adequate compensation for their services, for the time during which they have been detained in slavery by the said defendants; and that they may have such other and further relief as their case may require."


The executors defended themselves in this lawsuit with several technical legal points, but also on the grounds that (1) slaves cannot sue, and (2) the executors had sole discretion to decide whether or not to free these slaves.


The Washington County Court initially dismissed the suit, and the plaintiffs appealed to the Supreme Court of Maryland.


The Supreme Court identified the legal issues like this: Can a Maryland court issue an Order granting a slave his or her freedom? And the conclusion they came to was: No, but the court can issue an order compelling an executor to issue a deed of manumission to a slave, if their former owner has given her executors that command in her will.


The Court began by agreeing with the principle that slaves have no legal standing to sue. However, the Court went on, because these slaves claimed that they had a legal right to be freed because of the last will of their owner, they had standing to sue for a "deed of manumission."

Here are relevant excerpts from the decision:

"The right of a person, born a slave, to his freedom, must depend upon our acts of Assembly. They must give him the right, and he must prove, that he has acquired it in some way authorised by law. The mode in which the right is to be obtained must be prescribed by act of Assembly. The master who desires to manumit his slave, must take care in all respects to conform to the law. He may give him freedom, by deed or will, to take effect in prœsenti, or, in futuro...."


"The question here which meets us at once, is, not whether this is a case of hardship and injustice, but whether such a person can be heard in a court of equity of this State? If he cannot, the court is not permitted to judge whether it be a case for which the law ought to provide a remedy? A judge may think it against equity and good conscience to hold any slave, or a particular slave, in bondage; and may have his own notions about the right of a slave to his freedom. This, however, gives him no right to legislate any slave into his freedom, either by a decree declaring him to be free, or by directing him to be emancipated by an individual..."


"If a negro is entitled to his freedom, the law says, he shall petition for it in the county court of the county wherein the owner resides; and the law which confines him to this one remedy, takes care to secure to each party, in the trial of the case, such privileges as the legislature thinks each ought to have. No where is the chancellor, or the county court, as a court of equity, invested with power to decide any matter between a slave and his owner...."


"Now it cannot be doubted, that the act of 1796, ch. 67, provides a remedy for all persons in bondage, who claim to be entitled to their freedom; and it also prescribes the mode of trial...."


"In Fenwick against Chapman, 9 Pet., 475, the Supreme Court say: 'If an executor withholds freedom from manumitted slaves, the slaves may prefer their petition at law against the executor, or against any person holding them under him, and may recover their freedom by a judgment at law. And the slaves may do this upon the principle, that a statute never gives a right without providing a remedy; in the absence of such provision, contemplating that there is a legal remedy to secure it.'”


"As in this case, the complainants were under the necessity of invoking the aid of a court of equity, that an execution of the power created by the will might be enforced, as preliminary to the institution of a petition for freedom in a court of law; we think, that in analogy to the right secured to the slave of preferring his petition in that court for the purpose of establishing his freedom, and on the principle so distinctly announced by the Supreme Court, in the case of Fenwick and Chapman, they must be regarded as capacitated for the purposes of this suit, and therefore able to maintain it...."


"It follows from the views thus expressed, that we think the court below had no power to determine by their decree the freedom of the complainants, nor to order an account of the value of their services, as prayed for in the bills; but that, on the case presented by these bills, the court had jurisdiction of the cause, for the purpose of directing the executor to execute deeds of manumission as required by the will...."


"...the substantial merits of the cause will not be determined by the reversing or affirming the decree passed in this case, [therefore] it is remanded to the county court of Washington county, sitting as a court of equity, that such further proceedings may be had as may be necessary to determine the cause upon its merits..."


And so, the lawsuit was referred back to the Washington County Court, with instructions that these plaintiffs did, in fact, have the right to sue for an order compelling the executor to free them.


by

Larry Rogak 

August 31, 2015