Pursuing Freedom

BRIAN: We’re back, with BackStory. I’m Brian Balogh.

ED: I’m Ed Ayers.

PETER: And I’m Peter Onuf. Today on the show, balancing acts. We’re looking at the history of struggles over rights in America.

ED: And when you think about enslaved people securing their freedom, you probably think about the Underground Railroad, and the stories of fugitive slaves who fled north. But some slaves managed to liberate themselves not by running away, but rather by taking a stand in a court of law. These somewhat exceptional cases were known as freedom suits.

JEANNINE DELOMBARD: The idea of a freedom suit is that you are wrongfully enslaved, and you’re asking the court to recognize that you are a free person.

ED: This is Jeannine DeLombard, a professor at UC Santa Barbara. She explains that the logic behind a freedom suit was basically that of mistaken identity. For example, if a free person had been kidnapped– think about the plight of Solomon Northrup in the film 12 Years a Slave, for example– that was one basis for a case. But DeLombard says these cases often centered not on who a person was, but where they had been.

JEANNINE DELOMBARD: One of the main reasons for a freedom suit is people move around, right? People are asked– forced– to move around, to cross borders, all of those things. And that can be the basis for a freedom suit, that you’ve lived in a free territory, or free jurisdiction, a free state.

ED: This was known as the once free, always free doctrine. And to be clear, it didn’t apply to runways– only to enslaved people, carried over state lines by their masters. The basic idea was that owners forfeited their property rights by taking their slaves to a place where they weren’t considered property. And in the first half of the 19th century, one state in particular became a hot spot for these cases.

JEANNINE DELOMBARD: Missouri is completely surrounded by either free states, like Illinois, or free territories, like Iowa. And so Missouri, being this place that’s surrounded by free jurisdictions, places where slavery was not recognized, that became a really crucial basis for asserting your own freedom.

ED: Between 1812 and 1865, more than 300 freedom suits were filed in Missouri. The one we know most about involved an enslaved teenager in St. Louis, named Lucy Delaney. Delaney’s memoir, published decades after the fact, recounts how she and her mother, Polly Wash, dreamed of the day they would be free.

FEMALE SPEAKER: No schemes were too wild for us to consider. Mother was especially restless. Mother was always planning and getting ready to go. And while the fire was burning brightly, it but needed a little more provocation to add to the flames.

ED: That provocation came when Polly Wash was sold away and separated from her daughter. In 1839, she filed a freedom suit, claiming that one of her former masters had taken her to the free state of Illinois. While the court was still mulling the case, Polly Wash filed another freedom suit– this one on behalf of her daughter. The status of a child as free or enslaved was commonly accepted to follow that of the mother. So if Polly Wash had the right to be free, so did her daughter Lucy. Of course, their rights claims weren’t the only ones in play.

JEANNINE DELOMBARD: It’s been said that freedom suits are for, in some ways, the ultimate contest of the slave holder’s right to property– which is incredibly central to Anglo-American law, not just for slaveholders, but for all of us– still today, that as a property holder, you have been a remarkable array of rights. And that, the freedom suit, seems to bring up this incredible conflict between the individual property owner’s rights, which are often quite extensive, with the right to liberty, which is also a crucial bedrock in Anglo-American law, going back to the English Common Law.

ED: And yet, says DeLombard, it was always clear which of those rights reigned supreme. As an example, she points to a speech by Lucy’s lawyer, Edward Bates, who would go on, incidentally, to serve as Abraham Lincoln’s Attorney General.

JEANNINE DELOMBARD: There’s this fascinating moment where he says, gentlemen of the jury, I’m a slaveholder myself. But thanks to the Almighty God–

MALE SPEAKER: I’m above the base principle of holding anybody a slave that has as good rights to her freedom as this girl has been proven to have. She was free before she was born. Her mother was free, and no free woman can give birth to a slave child, as it is in direct violation of the Laws of God and man.

JEANNINE DELOMBARD: And that sounds wonderful, right? But the problem is the logic of saying no free woman can give birth to a slave child, as it is in direct violation of the Laws of God and man, is to imply that all kinds of enslaved women can, and they’re not offending the laws of God or man. And so here, what he’s saying, he has no problem here with slavery– with holding slaves. The problem is holding the wrong people as slaves.

ED: In the end, Lucy and her mother did win their freedom, as did about half the claimants in the Missouri freedom suits. But DeLombard says it would be a mistake to see freedom suits as a challenge to the entire institution of slavery.

JEANNINE DELOMBARD: Because the logic of the freedom suit says, it’s fine. There is something called slavery. It’s absolutely fine for most people to be enslaved. This individual person should not be enslaved. And so freedom suits reinforced the property rights of all slaveholders against people who hold their slaves, perhaps you might say, irresponsibly, by taking them into places where they’re not recognized as property, and then creating this situation where there can be challenges to their rights as property holders.

ED: Jeannine DeLombard is an English professor at UC Santa Barbara. If you want to read sections from Lucy Delaney’s memoir, From the Darkness Cometh the Light, you’ll find them at backstoryradio.org.