In the Shadow of Dred Scott

St. Louis Freedom Suits and the Legal Culture of Slavery in Antebellum America

Kelly Kennington

• Publisher: University of Georgia Press
• Year: 2017
• Print ISBN: 9780820345529, 9780820345512
• eBook ISBN: 9780820350851
• Topic: History
• Subtopic: North American History
• Index: History

The Dred Scott suit for freedom, argues Kelly M. Kennington, was merely the most famous example of a phenomenon that was more widespread in antebellum American jurisprudence than is generally recognized. The author draws on the case files of more than three hundred enslaved individuals who, like Dred Scott and his family, sued for freedom in the local legal arena of St. Louis. Her findings open new perspectives on the legal culture of slavery and the negotiated processes involved in freedom suits. As a gateway to the American West, a major port on both the Mississippi and Missouri Rivers, and a focal point in the rancorous national debate over slavery's expansion, St. Louis was an ideal place for enslaved individuals to challenge the legal systems and, by extension, the social systems that held them in forced servitude.

Kennington offers an in-depth look at how daily interactions, webs of relationships, and arguments presented in court shaped and reshaped legal debates and public at­titudes over slavery and freedom in St. Louis. Kennington also surveys more than eight hundred state supreme court freedom suits from around the United States to situate the St. Louis example in a broader context. Although white enslavers dominated the antebellum legal system in St. Louis and throughout the slaveholding states, that fact did not mean that the system ignored the concerns of the subordinated groups who made up the bulk of the American population. By looking at a particular example of one group's encounters with the law—and placing these suits into conversation with similar en­counters that arose in appellate cases nationwide—Kennington sheds light on the ways in which the law responded to the demands of a variety of actors.

1 / Setting the Scene

When Arch and Jack sued Barnabas Harris for freedom in 1818, both men searched for the best strategy to obtain freedom in the St. Louis courts.¹ Harris claimed that the men belonged to Eusebius Hubbard of Kentucky after an 1811 indenture transferred property (including the two enslaved men) to Hubbard from his wife. The document decreed that Arch and Jack serve Hubbard until his death and then become the property of his heirs.² Such an arrangement—passing human property between spouses or family members in what the legal community referred to as a life estate, which granted temporary control to the beneficiary—was not unusual, though it raised complicated questions about ownership rights and control over human property.³

Jack claimed freedom based on an 1817 manumission ordering that Jack be freed after Hubbard’s death. The manumission deed declared that Jack was to “be fully Emancipated and completely discharged from the claim or claims to any servitude, bondage or authority whatsoever.”⁴ Arch’s manumission arrangement included an additional requirement that he serve Hubbard’s daughter for fifteen years before receiving his freedom.⁵ When Hubbard died shortly after issuing the deeds, Jack and Arch passed into the possession of his heirs, who, as later evidence makes clear, were well aware of the manumission agreements. Recognizing that they now held illegitimate title to free men, the heirs quickly sold the alleged slaves to Barnabas Harris for an unnamed price in order to avoid prosecution.⁶ After the sale, the two enslaved men sued Harris for freedom, inaugurating a series of legal processes that centered on their freedom suits but were not confined to the courtroom.

The term “freedom suit” can refer to a variety of types of legal contests, though statutes often specified the particular type of legal action required to determine the issue of personal status in each state. In the pages that follow, the term refers to any lawsuit in which one of the primary issues the court had to decide was the personal status (as legally free or enslaved) of one or more alleged slaves. Often initiated by a person or persons held in slavery or by someone else on their behalf, freedom suits also originated from disputes over wills, habeas corpus petitions, and other types of legal actions. The form and process of these cases depended on the type of legal action pursued, which varied according to each particular state’s statutes and existing practices.⁷

Process and strategy were integral elements influencing how enslaved individuals learned about law, thought about law, and transmitted their ideas about law. For this reason, understanding how a freedom suit operated in practice is essential for getting at the relationship between enslaved individuals and the legal system. Various points in the legal procedure of a freedom suit offered enslaved plaintiffs opportunities for interacting with attorneys and other legal professionals, deepening their awareness of legal culture, and inching toward freedom. The process of suing for freedom could—and often did—take years to complete: years full of affidavits, summonses, testimony, and continuances, leaving plaintiffs in a type of legal limbo. Some enslaved plaintiffs spent the bulk of this time working for temporary hirers, others remained with their alleged owners, and a few individuals spent the majority of the time that passed during their cases in the St. Louis jail. During the years spent waiting for a decision in a freedom suit, enslaved plaintiffs, although certainly terrified of the potentially negative outcome of their cases, eagerly participated in the process and contributed to the conversations that took place within each lawsuit.

The location, statutes, and process of freedom suits set the parameters for discussions over slavery and freedom taking place in local communities across the country. In St. Louis, the area’s legal heritage and its early relationship to slavery affected later conflicts in the antebellum decades. By the early nineteenth century, the St. Louis community was only beginning to debate the existence of slavery in the legal arena. The maneuverings of the city’s enslaved population forced these questions into the public sphere—jump-starting local conversations about slavery, even as communities, legislatures, and courts throughout the United States wrestled over similar issues.

Early St. Louis

When Arch and Jack began searching for a remedy for their illegal enslavement in the late 1810s, the town of St. Louis was less than seventy years old and had witnessed several shifts in imperial control. Beginning with the town’s initial eighteenth-century European settlement, St. Louis embraced a diverse population; its legal culture grew out of this tradition of French and Spanish heritage, as well as the city’s commitment to racial slavery and the near-constant tensions with Native Americans in the surrounding area.

Slow European settlement in an area that was already home to multiple groups of Native Americans contributed to Missouri’s multiculturalism. In the early eighteenth century, Missouri and Osage Indians inhabited the lands around the banks of the Mississippi and Missouri Rivers, near present-day St. Louis. Europeans made a few failed attempts at settlement in the early decades of the century before establishing the first permanent outpost in 1750, when France claimed the entire region as part of French Louisiana. In 1764, in an attempt to recover financial losses following the Seven Years’ War (1754–63), the French adventurer Pierre Laclède and his stepson, Auguste Chouteau, traveled north along the Mississippi River from New Orleans and founded the settlement of St. Louis near the confluence of the Mississippi and Missouri Rivers.⁸ Soon after, new groups of permanent settlers began arriving, and the young village seemed to “spring into existence.”⁹ French colonists dominated this initial influx, moving west across the Mississippi River after word arrived from Europe that France had surrendered all of its territory east of the river to the British. By late 1764, when news of the French cession of Louisiana to Spain reached St. Louis, the area had around forty or fifty families living there.¹⁰

St. Louis’s shifting imperial loyalties brought a mixed population of settlers; among the early arrivals was the family of Arch and Jack’s enslaver, Eusebius Hubbard. The remote inland territory’s failure to produce riches made it something of a colonial hot potato, bouncing from France to Spain, back to France, and finally to the new United States, all in the space of only forty years. After years of conflicts and failed settlement attempts, the Spanish relinquished Missouri to the French, who then quickly sold it to the United States in the Louisiana Purchase of 1803. Shortly after the United States assumed control of the territory, Eusebius Hubbard married and received three hundred acres of land in St. Louis, and eleven enslaved persons, as part of his marriage arrangement.¹¹ Throughout the territorial period, Native Americans along with French, a few Spanish, and Anglo-American settlers intermingled to construct Missouri’s unique social landscape, which also included a substantial population of enslaved and free people of African descent.

St. Louis’s European settlers committed the town to forced labor from its inception. The earliest known St. Louis inventory of goods and property, from March 1766, showed “two negroes,” apparently brought from the Illinois Territory by a French official.¹² In a reference from 1768, a trader agreed to “take a negro in place of the said sum of eight hundred livres in peltries” as payment for one of his debts.¹³ Additionally, the first book registering births, marriages, and deaths in the Catholic parish of St. Louis contains an entry dated October 4, 1770, when the sexton of the church “interred the body of Gregory, a free negro man.”¹⁴ Although a lack of solid population data makes it impossible to pinpoint the number of enslaved and free people of color living in the settlement in its earliest decades, a later newspaper reference suggests that the Catholic Church baptized and buried hundreds of enslaved and free people of color, in addition to the predominantly French inhabitants of the village.¹⁵

Enslavers in St. Louis quickly seized on the strategy of trying to divide loyalty in order to better control their human property. For example, on May 15, 1787, Marie-Thérèse Chouteau received $600 in silver for the value of her enslaved man, who died trying to help recapture two escaped Indian slaves. One nineteenth-century historian described the incident, writing, “This affair was one of absorbing interest to the inhabitants of our little community, furnishing the gossips of the day a fruitful topic to engage their attention. . . . Not so much from the death of the negro itself, for that was a circumstance of minor importance at that day, as from the high social position that all concerned [in] it occupied in the community.”¹⁶ The enslaved man’s death came as a result of trying to help capture runaway Indian slaves, an indicator of the divisive plan attempted by enslavers in these early years. Marie-Thérèse Chouteau was the mother of Auguste Chouteau and the mistress of Pierre Laclède, the two men who together founded the village of St. Louis. A wealthy and powerful woman, her social standing no doubt influenced the award she received to compensate her for the loss of her human property.¹⁷

The indenture transferring Arch and Jack from Eusebius Hubbard’s wife to Hubbard and then to his heirs took place in late 1811, just before the outbreak of imperial conflict in the War of 1812. The end of the fighting brought significant change to St. Louis and the region that later became the state of Missouri: with the war over and the British presence in the Northwest Territory eliminated, more settlers from further east and south entered the area. After 1815, the population of the area now called the Missouri Territory (with roughly the same boundaries as the state of Missouri) increased exponentially, driving explosive growth in its largest town, St. Louis. From 1815 to 1818, the population of St. Louis doubled to more than three thousand residents.¹⁸ Many of these new settlers brought enslaved captives with them from eastern seaboard states like Virginia and the Carolinas, helping, along with the founding French residents, to build a solid foundation of powerful slaveholding families in the region.

Arch and Jack brought their freedom suits just before the slavery question catapulted Missouri into national debates over the future of the institution in the American West. The Compromise of 1820, also known as the Missouri Compromise, resulted from the question of whether Missouri would allow enslaved and free people of color to migrate to the region. Northerners, many of whose states had already abolished or were in the process of abolishing slavery, feared that allowing Missouri to enter as a slave state would upset the balance of power in the U.S. Senate. Southerners wanted to guarantee the ability of enslavers to bring their human property into new territories, therefore preserving their own power in Congress and protecting the institution they viewed as crucial to the region’s survival. With enslavers forcing groups of enslaved laborers to migrate to the region, white Missourians erupted in protest over the suggestion that they would not be admitted as a slave state.¹⁹ The eventual Compromise admitted Missouri as a slave state and Maine as a free state, which preserved the balance of power in the Senate. Even more important for future debates over slavery, the Compromise created a line at the 36º30’ parallel to denote that new states admitted to the United States north of this line would not have slavery and those territories south of the line would allow slavery. Although the Missouri Compromise left both sides with battle scars in the form of added distrust and increased tension, it did manage to keep slavery in the background of national politics for more than two decades.²⁰ In 1821, when Missouri joined the Union as a state permitting slavery, Missouri’s 20,000 enslaved residents represented roughly 15 percent of the population; St. Louis alone had over 10,000 total residents, and its 1,800 enslaved people constituted 18 percent of the city’s population.²¹ At the same time, the number of free people of color in the territory decreased to only 347, possibly because of tight legal restrictions placed on all people of African descent, enslaved and free.²²

Enormous population growth in the space of only a few years created a tense environment in St. Louis and the surrounding area, which is reflected in the city’s attempts to maintain control of its African-descended population. One particularly sensational St. Louis example of this tension was the legal case of United States v. Elijah (1818), involving an enslaved man who faced charges of conspiracy to commit murder for plotting to kill his enslaver’s wife. Elijah’s case received widespread attention and eventually resulted in a guilty verdict and his execution.²³ Fears of slave uprising further unsettled the social relations in the area. As a result, state and local officials passed a variety of ordinances designed to control enslaved and free people of African descent.²⁴ These new legal restrictions built on a long tradition of slave law under the French and Spanish.

Creating a Law of Slavery

By the 1810s, Arch and Jack attempted to navigate a legal system built on a foundation of varying imperial codes that emphasized informal negotiations. In the eighteenth century, St. Louis and surrounding settlements west of the Mississippi operated under successive French and Spanish civil law codes before shifting in the early nineteenth century to a legal code that more closely resembled the English common law tradition.²⁵ After the Spanish officially assumed control of St. Louis from the French in May 1770, Spanish officials called commandants administrated justice and settled local disputes in St. Louis, often without formal judicial proceedings. Commandants preferred arbitration or informal settlement to court proceedings, and the right of trial by jury did not exist in the Spanish legal system.²⁶

When France transferred control of the Missouri region to the United States in 1803, a combination of Spanish civil law, the legal traditions of the predominantly French population, and English common law brought in by the new, American government and Anglo-American settlers all worked to create a hodgepodge of rules and precedents for the new American courts—and individuals looking for legal remedies—to digest. For the most part, existing laws and practices remained in place unless directly altered by the new governmental authorities. Justices of the peace administered law on the local level, and litigants could appeal their decisions to the Court of Quarter Sessions of the Peace (the precursor to the Circuit Court).²⁷ The tremendous growth of the colony in the 1810s, with many new Anglo-American settlers moving in, brought changes to the court system in St. Louis. Congress created the Territory of Missouri in June 1812 and affirmed existing legal practices not specifically changed by the territorial legislature. In 1813, the courts operating in St. Louis combined to form the Court of Common Pleas, which exercised civil, criminal, and probate jurisdiction for St. Louis County until the creation of the Circuit Court on February 15, 1815. At the inception of the St. Louis Circuit Court—where Arch, Jack, and most other illegally enslaved plaintiffs brought suit for freedom—it provided civil, criminal, chancery, and probate authority in St. Louis.²⁸

When plaintiffs like Arch and Jack built their arguments for freedom, they drew on the combination of French, Spanish, and English legal traditions that constituted Missouri’s system of slave law. By the mid-eighteenth century, slave laws and conditions in North America varied considerably from place to place. Even so, slavery had become a strict, race-based system of exploitation and social domination, regardless of the European power in control. St. Louis was no exception. French law governed the earliest enslaved persons in St. Louis. In 1724, the French established the Code Noir, or Black Code, for Louisiana, which also constituted the first law of slavery in Missouri. Based on the Roman system of slavery, the Code Noir provided f...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Note on Sources
• Introduction: The Legal Culture of Slavery
• 1 Setting the Scene
• 2 Bringing Suit
• 3 Crafting Strategy
• 4 A World in Motion
• 5 Double Character
• 6 Defending Suits
• 7 Political Repercussions
• Conclusion: After the Verdict
• Appendix
• Notes
• Bibliography
• Index