FREEDOM OR BONDAGE - THE JUDICIAL RECORD
The statutes of colonial Maryland established an absolute equation between blackness and slavery. In the words of Maryland's first slave law, passed in 1664, "all Negroes and other slaves already within the Province And all Negroes and other slaves to bee hereafter imported into the Province shall serve Durante Vita."[ 1 ] The blackness-equals-slavery precept was reenacted several times thereafter.[ 2 ]
Much is made in historical literature about the legal status of blacks as chattels, indistinguishable from cows and sheep insofar as the law was concerned. But statutory law only reflects how certain people in a society, usually the priviledged class, think things should be in an idea world. Reality often times betrays a great disparity between itself and the way some people would like things to be. So it is with slavery in colonial Maryland. Although the statutes prescribed lifelong servitude and chattel status for blacks, there was also implicit recognition that blacks were human beings and, in some cases, had legal means to freedom. A common-law tradition which recognized these factors evolved.
An example of this ambivalent attitude have been previously cited in law of 1671. Nothing that, "Several of the good people of this Province . . . have to the great displeasure of Almighty God and to the prejudice of the Soules of those poore people [slaves] Neglected to instruct them in the Christian faith." the 1671 law stated that baptism and Christianization of blacks would not be grounds for their manumission.[ 3 ]
A cynical interpretation of this law would hold that its real purpose was to attract more slave labor to Maryland by removing a troublesome obstacle, namely the long-held English notion that only non-Christians could be enslaved. No doubt that objective played a part in the law's passage. But, can its clear reference to black slaves as "people" with "Soules" be ignored as mere window dressing? No. Obviously, the whole matter troubled the minds of white Marylanders or the question of Christianizing blacks would have been moot and the law unnecessary. Certainly, the law had the added benefit that Christian slaves could be taught to be dutiful and obedient slaves. Therein lie the implicit assumption that slaves were different from cows and sheep. No Maryland law ever provided for the baptism and Christian instruction of livestock.
While statutory law helps us somewhat to understand the legal status of blacks in colonial Maryland, it is really only a point of departure. Case law, on the other hand, provides a closer look at the legal dynamics of race relations. The numerous surviving freedom petitions filed by blacks and mulattoes, for example, show that, despite a clearly stated statutory presumption that blackness meant slavery, there evolved in Maryland a common law presumption that exceptions could be made. The Provincial Court, the county courts, and the other special courts which heard slave freedom suits showed a consistent tendency to judge each case on its individual merits and to grant petitioners their freedom when the eveidence warranted it.
The earliest known slave freedom petition for Maryland is that of John Babtist, the "moore of Barbary," in 1653, discussed above, Chapter II, pp. . Although Babtist's petition came eleven years before the first slave law, there is clear evidence that Marylanders were practicing black slavery even then.[ 4 ] Babtist's case reveals the mechanism by which they were doing it, holding black indentured servants as slaves because they were black. Babtist presented his case to the Provincial Court arguing for his freedom on the grounds that his original master, Simon Overzee, had not sold him "for his lyfe time," as his then-present master, unnamed, intended to hold him. Although Babtist could produce no written indenture, he did have a number of witnesses to the sale who testified on his behalf. The Court decided in his favor although it ordered him to serve another two years to bring his total time in service to seven years.[ 5 ] The Court clearly disapproved of the master's attempt to hold a black servant indefinitely in view of clear evidence that this particulaar servant was protected by contract. Thus, the Court established a precedent that would last at least through the Revolution: blacks, though presumed to be slaves, could use the courts to prove prior legal protection against enslavement.
The second earliest surviving black freedom petition is that of Thomas Hagleton. Of all the seventeenth-century black Maryland freedom petitions, the Hagleton case is the most extensively documented, and, from that standpoint, it is the most important. Hagleton was born free of black parents in Southwark, England, sometime in the mid-seventeenth century. He was baptized an Anglican. By some unexplained train of events, he came into the service of a Catholic woman in London named Margery Dutchesse. He seems not to have been her slave, however. Madam Dutchesse apprenticed Hagleton to William Jordan, an alderman in Durham, England. Under Jordan's tutelage, Hagleton was to learn the "Trade of working Tobacco." Madam Dutchesse had young Hagleton rebaptized a Catholic while he was in Durham. Later, Jordan died and Hagleton returned to his mistress in London. In about 1671, she "consigned" him to a Thomas Kemp "to serve for the terme of foure years and no longer." Kemp brought Hagleton to Maryland and sold his indentre to Major Thomas Trueman. In May 1676, twelve years after the durante vita law of 1664, and one year after his indenture expired, Hagleton requested the Provincial Court to hear his petition that Trueman release him. With Trueman represented in absentia by his attorney, Speaker of the Lower House Kenelm Cheseldyn, the court heard "all evidences . . . Severall depositions and letters" on Hagleton's behalf, and on the basis of all that, ordered him freed.[ 6 ]
On the face of it, Hagleton's case appears not much different from the Babtist case, other than the fact that it occurred after the 1664 law. A black servant was presumed a slave until he proved to the court's satisfaction that he was not. Although the records are not clear, it is reasonable to assume that Trueman's attorney cited the law of 1664 to justify holding Hagleton beyond the date of his indenture. The court's decision, then, suggests that the durante vita clause operated not to establish an absolute parity between blackness and slavery. The court was still willing to entertain exceptions to that assumption.[ 7 ] There were, however, extenuating circumstances surrounding the Hagleton case.
Hagleton's master, Thomas Trueman, was a prominent figure in Maryland in the 1670's. He sat on both the Governor's Council and the Provincial Court (although he did not sit in judgment of himself in this case) and held the militia rank of major. But, at the time Hagleton sued for his freedom, Trueman was temporarily out of favor with the Proprietary establishment. In September, 1675, he had led a force of Maryland militia to join with Virginians and friendly Indians on a punitive expedition against the Susquehannocks. At one point during the campaign, the force captured five Susquehannocks chiefs whom some of the militamen believed responsible for murdering several whites. The chiefs proclaimed their innocence and displayed a peace medal in their possession which bore the seal of Lord Baltimore as a pledge of Proprietary protection and amity. Nevertheless, Trueman, in a weak moment of leadership, permitted some hotblooded militiamen to execute summarily the five Indians. For this breach of Baltimore's faith with the Indians, the Proprietary government later moved against Trueman. The Lower House of the Assembly prepared articles of impeachment (which, incidently, included the signature of Trueman's attorney, Kenelm Cheseldyn) and the Upper House tried him on various charges of malfeasance. In the same month Hagleton went to court, the Upper House found Trueman guilty. Despite the Lower House's demand that he be executed, the Upper House simply ejected him from his seat on the Council.[ 8 ]
In view of Trueman's standing at the time, it is significant that membership in the Upper House was the same as membership in the Provincial Court and that three of the five Court Justices who presides over the Provincial Court when it heard the Hagleton petition were pro-Baltimore: Charles Calvert, Lord Baltimore himself; Philip Calvert, one of Baltimore's brothers and Chancellor of Maryland; and William Calvert, another brother and Secretary of Maryland. It is also significant that Trueman's attorney, Kenelm Cheseldyn, was to become an arch-conspirator against the Proprietor during the rebellion of John Coode and the Protestant Association in 1689. One of the Association's chief grievances was to be unfair dispensation of justice by the Baltimore faction. Is it possible that the Provincial Court's judgment in the Hagleton decision was actually a contrived effort to debilitate Trueman by depriving him of his property without due process of law?
Trueman thought so. In May 1670, he entered a scire facias and a writ of error over the case in the Chancery Court. Chancery, perhaps wary that the issues had political overtones, deferred hearing Trueman's complaint for several years. Finally, in 1681, it handed the case over to the Governor and Council,[ 9 ] the supreme court of appeal in Maryland. The Council did not hear the case for another two years. When it did, Trueman, through his attorney, Cheseldyn, assigned three errors to the Provincial Court's original decision. The errors were: that Trueman had not been personally present to "Answer the Plaint by due Process at Common Law"; that the proceedings were executed by way of mere petition, "whereas no freeman ought to be Outed of his Goods and Chattels," unless by presentment and indictment, or other due process; and, finally, that the court reached its verdict without the concurrence of a jury. Cheseldyn summed up Trueman's complaints by charging that "the whole Proceedings [were] Defective as to the due formalitys required by Course of Common Law." The Council was, of course, representative of the same Proprietary interests that has "outed" Trueman of his property in Hagleton in the first place.[ 10 ] After hearing Trueman's appeal, the Council decided that his case was "not Sufficient in Law" to invalidate the Provincial Court's original judgment. In addition, it ordered Trueman to pay Hagleton's costs of attending several years of litigation.[ 11 ]
Hagleton's meanwhile, not the least cowed by any of the foregoing, was determined to get whatever satisfaction he could for that extra year of service which Trueman owed him. In November, 1676, only five months after he became a free man, Hagleton initiated a new suit in the Provincial Court to recover from Trueman the freedom dues owed him -- corn and a suit of clothes.[ 12 ] The court ordered Trueman to pay, but Trueman appears to have foisted the responsibility to Thomas Kemp, Hagleton's original importer. Kemp could not pay. Coming before the Provincial Court in April, 1677, to take the pauper's oath, he stated that his estate was worth less than £5 sterling after satisfying all his debts, "besides the thing in question about Thomas Hagleton a negro."[ 13 ]
Hagleton immediately reentered suit against Trueman. The Court continued the case for years, during which time Trueman was one if its justices.[ 14 ] Not until after Trueman's death did Hagleton finally exact his pound of flesh. In February, 1686/86, over a decade after he had won his freedom, Hagleton initiated action against the administrators of Trueman's estate. In April, after a plea by Hagleton's attorney, Robert Carvile, the Provincial Court ordered 3,496 pounds of tobacco out of the estate to pay Hagleton for his cost of attorney and issued a writ of inquiry to determine what damages were due Hagleton for one year's wages and the corn and clothes.[ 15 ]
The Hagleton case is significant in several respects. While it is conjectural to assume that Trueman thought the durante vita clause of the 1664 law invalidated Hagleton's indenture, it is clear that the Provincial Court did not think so. Whether the court reached its decision strictly on the basis of legal propriety or more out of partisan motives is also conjectural. But, it is interesting that Trueman, in his appeal, made no reference to the 1664 law, but rather went solely on the basis of technical error. This suggests that there was a widely-based understanding that the law of 1664 was open to rebuttal in specific cases where extenuating circumstances might prevail. In this case, like the Babtist case, the petitioner presented sufficient evidence of his being a term servant and not a slave. Thus, legal contracts could take precedent over skin color.
It is important to note that Hagleton was not a typical tobacco colony field hand. Born an English subject, raised in London and Durham, no stranger to white man's religion (in which he, in fact, seems to have been unusually accomplished), and clearly aware of the legal channels open to him, he possessed an obvious advantage over the black field hand imported diretly from Africa or by way of the West Indies, or who was born of parents who had been so imported. While he seems not to have been literate,[ 16 ] Hagleton enlisted the aid of one of the colony's most active attorneys, Robert Carvile. Once the court freed him, it showed him the consideration accorded any free man. Although it dragged his suit for corn and clothes out for years, possibly due to Trueman's continued tenure as a justice, it did not drop the matter altogether and did finally give him the satisfaction he sought.
In a similar case nearly four years after Hagleton's, the Provincial Court again entertained the possiblity that a contract could negate the legal dictate of skin color as directed by law. This time, the results were less decisive. In February, 1679/80, Charles Cabe, a black, sued for his freedom from Thomas Sprigg. Cabe claimed that Captain Thomas Cornwallis originally bought twenty-one years of his service in England twenty years previous to the petition. The price Cornwallis supposedly paid was £25 sterling. Sprigg, who evidently came to possess Cabe, announced his intention of holding Cabe a slave. Unlike Hagleton, however, Cabe did not present impressive evidence. Four whites who had come to Maryland on the same ship as Cabe testified. Two of the four were formerly indentured servants to Cornwallis. Two of the witnesses disclaimed any knowledge of the terms of Cabe's service. The other two said they had heard Cabe and some of the seamen on the ship talk about a twenty-one year indenture, but never heard Cornwallis confirm it. The court's decision was to the point, "the said Charles Cabe is a Slave."[ 17 ] Like Hagleton, Cabe had an exceptional background for a Maryland black. Likewise, Cabe contended that the 1664 law was open to rebuttal, and the court admitted his contention. Unlike Hagleton, however, Cabe could not produce adequate evidence and, thus, lost his suit.
In a third case, a Baltimore County black named Edward English also petitioned the court for his freedom on the basis of a contract. In May, 1682, English testified that he originally belonged to Nathaniel Utie. After Utie died, his widow married Henry Johnson. Johnson assumed that English belonged to him and subsequently sold him by terms of a five-year indenture that expired on April 10, 1682. English came to the Provincial Court in May, 1682, to petition for his freedom, which, according to the terms of his indenture, should have been granted the previous month. Aside from the indenture, English offered additional reasons why he should not be a slave:
. . . your poore Petitioner being borne and baptized in your Province in the feare of God and doe learne to read the Gospell hopeth your honor will be pleased to consider your poore Petitioner and that he may have his freedome. . . .
In view of the fact that, by 1682, Christianity was no longer legal grounds for manumission, it is strange that English would have bothered with this final appeal. If Christianity operated to negate slavery, the court could have ended the affair at this point and freed English. It did not. More concerned with legal technicalities than with broad concepts, the court, upon learning further that English had rightfully belonged to Utie's orphan and not to Johnson, who made the indenture, ordered the petition referred to the Baltimore County Court which it directed to "doe therein as to Justice appertaineth with due regard had to the Orphan to whom the Pet'r (as this Board is informed) of right belongeth."[ 18 ]
Unfortunately, Baltimore County Court records do not exist prior to November, 1682, six months after the Provincial Court's decision. If the Baltimore justices ever dealth with the case, they did so before November, for no record of it exists after that date. Henry Johnson was a justice on Baltimore County Court at the time.[ 19 ] If the court never took up the English case, Johnson's tenure as justice might explain why it did not.
Nevertheless, the Provincial Court's action in the matter does warrant important observations. As in the earlier cases, the court considered the durante vita clause open to rebuttal in view of the possibility that the petitioner was protected by an indenture. When evidence indicated that the indenture might have been contracted fraudulently, the court's primary concern was determining rightful title to property in English's body. The Baltimore Justices, presumably, would be more familiar with the disposition of Utie's estate than were the Provincial Justices, and for that reason could better straighten out the matter. As with Babtist, Hagleton, and Cabe, proof of a master's intention, based on a legal contract, was the critical issue. As with Hagleton and Cabe (and possibly Babtist), English was a exceptional Maryland black; not only was he baptized and possessed of an English name, but he was literate as well. The first case in which a master clearly appealed to the durante vita clause was the freedon petition of another Anglicized black, Ralph Trunckett "now detained a Slave by Gilbert Turberfield," in September, 1692. Trunckett was born in Madagascar sometime in mid-century and was taken to England at a very young age. In England he lived in the service of a Mr. Trunckett, who had him baptized and raised a Christian, and from whom he took his surname. Ralph stayed with Trunckett until he was over twenty-one years old. In 1668, he shipped on board a Maryland-bound vessel as a self-indentured servant to the captain, Edward Prince. Ralph claimed he was only to serve "according to the custom of the Country," common terminology for a four-or-five year indenture.
After the ship reached the province, Prince sold Trunckett to his brother Thomas. Thomas Prince refused to honor the indenture claiming vindication under the "lawes of this province." Thomas died and his widow married Gilbert Turberfield. Turberfield, like Prince, appealed to the durante vita clause and refused to free Trunckett. After much argument, Turberfield evidently relented somewhat and agreed to free Trunckett if he would serve an additional twelve years. Trunckett claimed in his petition that he had served that twelve years faithfully, but that Turberfield still refused to release him.
Like English, Trunckett appealed not only to the terms of legal indenture, but also claimed baptism and education in the Christian faith. On the basis of the two indentures and his baptism, Trunckett maintained that, by the laws of England, he was "absolutely manumitted from all Slavery of this nature." Turberfield countered Trunckett's position by simply appealing to the durante vita clause. Trunckett contended, in effect, that the law of England, which proscribed the enslavement of Christians, took precedence over the law of Maryland, which did permit enslavement of Christians. The court seems to have sidestepped that issue. It impaneled a jury to find a special verdict on the validity of Trunckett's various claims. The jury returned a verdict favorable to Trunckett, whereupon the court ordered him freed and ordered Turberfield to pay him freedom dues and the cost of suit.[ 20 ] How much bearing Truncketts' baptism had on his winning the suit is problematic. Likely, it had little; the jury's opinion probably proceeded solely upon the merits of Trunckett's claim to protection by indenture. To declare Trunckett free upon the basis of his baptism would have been grossly inconsistent with the obvious desire among Marylanders to maintain black Christians as slaves. As Hagleton might have taken advantage of his master's political ill fortune for the purpose of gaining his freedom, so too might have two of Henry Darnall's slaves during the turbulent years of the Protestant Association and the Crown's seizure of Maryland. Darnall had been a militia colonel, a Council member, and a Justice of the Provincial Court until the Coode rebellion in 1689.[ 21 ] After that, though devested of office, Darnall remained a staunch advocator of the Lord Proprietor. He organized an anti-Coode force in 1689 and later represented Baltimore's cause before the King and Queen. While Darnall was in England, the Saint Mary's County Court, firmly under the control of the Associators, freed a slave woman of his. Unfortunately, that county's court records are lost, but, in 1692, after he returned to Maryland, Darnall complained of the action to the Governor's Council, perhaps sensitive to provoking the ire of the still powerful Associators, decided it would be improper for it "to intermeddle therewith," but advised Darnall to seek "his Remedy at Law if he have been aggrieved."[ 22 ]
Darnall took that advice. In the following September session of the Provincial Court, the case of Joyce Giddy versus Herny Darnall came up for a hearing. The court continued the case until May, by which time Darnall's attorney, William Dent, Ralph Trunckett's former defender, entered a writ of error, evidently on the Saint Mary's County Court decision. The two parties agreed to "proceed upon the Merritts of the cause," and Giddy agreed to pay six witnesses, presumably all whites, 30 pounds of tobacco per diem court attendance for an aggregate of ninety-six days. Her commitment totaled 2,880 pounds of tobacco, or something more than t 12 sterling.[ 23 ]
The court heard the case in October. Giddy entered her petition which stated that she was born in New England and came to Maryland sixteen years previously as a servant for ten years to Thomas Brooks of Calvert County. Brooks died and Darnall married his widow. Giddy completed her term under Darnall. She said she have evidence that "she was sold for [a] terme of yeares and not durante vita as Colo Darnall intends to keepe her." Her evidence was, presumably, the testimony of six witnesses for whom she indebted herself for 2,880 pounds of tobacco. Their testimony was not recorded, but it did not outweigh Darnall's simple retort that Brooks bought her "for and as a Negro slave" and that she belonged to Brooks' administrators. A special jury found for Darnall. The court ruled "Joyce Giddy remaine a Slave . . . according to the law of this province. . . ."[ 24 ]
As the petitioners before her, Joyce Giddy appears to have been an exceptional black Marylander. Originally from New England, where blacks, even slaves, fared better than in the South, possessed of an English name, and aware of the legal options available to her, she seems to have much the same advantages over the common field hand. The court's confidence in her ability to repay the witnesses' costs is unusual. It is unfortunate that their testimony was excluded from the records, for it would be instructive to know what sort of evidence they offered and to speculate why it did not outweigh Darnall's claim.
Meanwhile, another of Darnall's slaves, Peter Morris, brought his freedom petition before the Provincial Court in May, 1693, the same month that Joyce Giddy's case was first heard. The court suspended judgment on Morris's claim for five months. In October, it finally decided that "Peter Morris is a Slave according to the laws of this province. . . ." The court clerk spared little ink to record Morris's case. Therefore, little else of its substance can be said. Judging by the court's final pronouncement, however, Morris had evidently claimed that something precluded his being considered a slave; quite possibly he referred to an indenture.
Only two other black freedom petitions occurred before the end of the century. In a case referred to the Kent County Court by the Governor in December, 1694, Negro Tom Blaines' testimony on his own behalf was found so fraudulent that the court dismissed his claims and ordered him to receive twelve lashes "well laid on his bare back."[ 26 ] In January, 1697/98, Negro Bently petitioned the Prince Georges County Court against his master, George Plowden. The court continued the case,[ 27 ] but no subsequent record of it exists.
Of the nine black freedom petitions to come to the courts between 1664 and the end of the seventeenth century, three were successful, four were failures, and the outcomes of two remain uncertain. The three successful petitioners, Babtist, Hagleton and Trunckett, were remarkably alike in circumstances. Babtist was probably not a non-Christian African. Hagleton and Trunckett spent their early lives in some sort of an apprenticeship or servitude, but not slavery, in England. Both were baptized and probably spoke English as a native language. Trunckett was literate. In short, Hagleton and Trunckett were black Englishmen. Babtist may have been Hispanic. All three came to Maryland under an indenture and could prove it to the Provincial Court's satisfaction thus winning their freedom. Their backgrounds seem atypical of the background of the average Maryland black.
Of the four unsuccessful petitions, only two, those of Charles Cabe and Joyce Giddy, were recorded with sufficient detail to warrant conclusions. Both petitioners followed the rule of exceptional background as Babtist, Hagleton and Trunckett. Both claimed benefit of a legal indenture, but neither petitioner could prove it to the Provincial Court's satisfaction. Cabe's evidence was, at best, flimsy. Giddy's was not recorded.
Of the two uncertain petitions, only Edward English's is complete enough to draw conclusions. In his case, the court showed at least an equal disposition to protect an orphan's possible claim to property in English's body as to permit a black his freedom. In two of the cases which were at all well recorded, the petitioners cited their baptisms as, at least, secondary justifications for their manumission. One of them was successful, the other was not. It is unlikely that their religious conditions exerted any influence over the court's decisions.
In view of the post-1664 freedom petitions, the durante vita clause of the 1664 law and its subsequent reenactments can be put in a more accurate perspective. At face value, the clause categorized all black residents of Maryland as slaves. But in practice the categorization rested not quite so definitely on color. Within a limited perspective, the law, while presuming all blacks to be slaves, did allow for some exceptions upon petition. In all of the five detailed cases, the petitioners claimed exception under contracts which they felt put them into a different category than specified by the law. Two won their cases on those grounds.
Obviously, this way around the 1664 law was not open to most Maryland slaves. Probably ignorant of the means to challenge the law in the first place, they could not hope to do so unless they had strong claims to contractual protection. If they had been sold as slaves with no document involved, other than, perhaps, a bill of sale held by their masters, then slaves they would remain. Only two options to avoid lifelong service were available to black servants with no indentures. Their masters were free to manumit them, and this happened, as we shall see. Or, as a last resort, the slave could always run away, and some chose that alternative, as we shall also see. There can be no doubt, however, that the durante vita clause effectively blocked the road to freedom to the vast majority of Maryland slaves in the seventeenth century.
Besides dealing with the status of blacks, the various durante vita laws also sought to settle the condition of mulattoes. Court cases touching upon these are not as extensive as those dealing with blacks, but they are nonetheless worthy of investigation.
As with the durante vita clauses, clauses specifying the terms of service for mulattoes could be superseded in individual cases by legal instruments. Thus, in December, 1682, Richard Chandler conveyed to his niece, Anna, a mulatto girl named Susanna who was to serve for thirty years, then be "free from all manner of service."[ 28 ] The precise date and circumstances of Susanna's birth are not clear. But, no matter what they were, Chandler's provision for her length of service was not supported by any law. If Susanna had been born prior to the law of 1681 to a white mother, then she should have served for life according to the law of 1664. If she was born before 1681 to a black mother, then the 1664 law at least implied that she should be free. If she was born after 1681, the law of that year would have held her free no matter which of her parents was white. In any case, Chandler's provision for her thirty-year service had no basis in law. In the same way that the indentures of Thomas Hagleton and Ralph Trunckett conflicted with the durante vita clause, so did Chandler's instrument conflict with the mulatto provisions. In 1697, Chandler specified in his will that two of his mulatto boys and two of his mulatto girls should be parceled out among various of his relatives and serve forever. A third mulatto boy was to be freed at age sixteen. Neither life servitude nor sixteen-year servitude for mulattoes was sanctioned in law.[ 29 ] Similarly, an Anne Arundel County woman conveyed a five- or six-year-old mulatto "servant" boy in 1697 specifying that he was to serve until age twenty-five,[ 30 ] a specification that was also inconsistent with the mulatto law.
In another such case which occurred earlier, Elizabeth Brewer of Talbot County specified in her will of 1667 that her two mulatto boys, Richard and Jeffrey, were to be baptized and taught to read and write. Jeffrey, furthermore, was to go to her son William and serve until he reached age thirty, "provided he do true Faithful Service until then."[ 31 ] Which of Jeffrey's parents was black is unclear. If his father was black, then Elizabeth's will also operated against the durante vita law of 1664. If his mother was black, then the will provided a term of service not specified by law. Jeffrey, however, had trouble claiming his freedom when he reached thirty and his case is the best recorded seventeenth century mulatto freedom petition.
Jeffrey, who had since claimed the surname Lisle, entered his freedom petition against Elizabeth Blackiston in the Provincial Court in May, 1696. He cited his original mistress' will, but complained he had since been sold as a slave to Madam Blackiston. The court listened to, but did not record, the testimony of several witnesses and found Jeffrey Lisle to be free. Madam Blackiston immediately entered a motion to appeal the decision to the Governor and Council. The court hesitated to grant the motion since it was unconvinced that Lisle was worth the minimal amount of £50 sterling or 10,000 pounds of tobacco, as required by law for appeals over matters regarding property disposition. The justices put the question to the Attorney and Solicitor Generals, William Dent and George Plater. They reported back that Lisle was, indeed, worth the minimal amount because they received a bid of 10,000 pounds of tobacco from a courtroom spectator who offered to buy Lisle if he were declared a slave. The court permitted the appeal.
In her appeal petition, Madam Blackiston restated the facts recorded by the court as described above, but added some interesting new facts. Her husband bought Lisle in 1692 from John Edward of Anne Arundel County. How Lisle had gotten into Edward's hands was not explained. Madam Blackiston also pointed out the contingency in Elizabeth Brewer's will that Lisle "do true Faithfull Service" for his freedom and then stated that she had evidence that Lisle had once run away, thus defaulting on the condition for his freedom. She also complained that the proceedings of the Provincial Court lacked the concurrence of a jury.[ 32 ]
In the end, Lisle decided his own fate without waiting on the Governor and Council. When the case came before the appeals board in October, 1696, it was promptly dismissed by reason that "the Defendant is Run away. . . ."[ 33 ] As in the black freedom petitions, the outcome hinged on the terms of a specific legal instrument and whether or not its conditions had been duly observed.
In a final case involving prior legal agreement, the Charles County Court took cognizance in 1699 (before the law of that year), of a certain legal instrument and ordered a mulatto girl freed if she could prove her age to be sixteen, as the agreement specified. In view of a law of 1678 which excluded mulattoes from birth records,[ 34 ] the girl was at an obvious disadvantage. The court, however, agreed to admit the testimony of the midwife who attended her birth, if the midwife could be found.[ 35 ] If the girl was as old as she claimed, she would have been born in 1683 when the law implied freedom for all mulattoes.
Only two seventeenth century cases have survived wherein a mulatto born of an English woman came to court to seek his freedom on that ground. In May, 1696, Richard Caven, claiming birth by an English woman thirty-two years previously, petitioned the Provincial Court for his freedom from Thomas and Elizabeth Coursey. If he could prove his contention, his case was good since his birth would have occurred before the September, 1664 law. That law provided for the offspring of English mothers born before the act's passage to serve for thirty-one years. The law of 1681 repealed the 1664 law on that account, but did not affect marriages and births which had occurred before 1681. The court deferred judgment on Caven's petition until three witnesses could be summoned. However, three months later, when the matter again came before the court, the justices dismissed it because Caven failed to appear. Evidently, like Jeffrey Lisle, Caven had some reason to believe he had a better chance for freedom by fleeing. In the same breath as it dismissed the case, the court issued a special commission on Madam Coursey's behalf "for [the] taking of Richard Caven a mulatto."[ 36 ] If Caven was ever recovered, the event is unrecorded.
The Charles County Court settled a final case by means of simple appeal to law governing mulattoes. In March, 1702/03, John Glover, the mulatto servant of Samuel Luckett, petitioned for his freedom on the grounds that he was born over twenty-one years earlier to a white woman, at a time, he claimed, when the law provided in such cases that the child should go free at age twenty-one. Glover was mistaken in his final assertion about the law. In February, 1680/81, when he was born, the law of 1664 was still operative. It stated that mulattoes such as Glover were to serve for life. After considering Glover's case, the justices ordered Glover to serve until age thirty-one. Thus, they applied the 1699 law to his case rather than the 1664 law which in effect when he was born and which had never been declared null and void. The court added, however, that it would grant Glover a new hearing if he could find a law, or even a court precedent, justifying his claim. A few months later, Glover returned with his mother, who confirmed his date of birth. But, since he had turned up no law or precedent, as the court had stipulated, the justices reaffirmed their earlier decision that he serve until age thirty-one.[ 37 ]
Of the four mulattoes who petitioned the courts for their freedom before the early eighteenth century, none clearly won. Two of them resorted to flight, probably for fear of losing their cases on appeal by their masters. Three of the four claimed freedom on the basis of prior legal contracts. Only one appealed to law, but displayed a pitiful ignorance of it, as did the court that heard his case. As with the laws regarding blacks, the laws governing the status of mulattoes seem to have been open to challenge and written contracts could take precedent over them. As with blacks, the burden of proof laid upon the petitioner, who, in this respect, could be disadvantaged since his or her case often hinged upon establishing their date of birth, a task complicated by the 1678 law's excluding mulattoes from having their births duly recorded.
Although the judical records are replete with cases of white/black fornication and bastardy, only three marriages between whites and blacks are recorded. The marriage of Eleanor Butler will be discussed below. Another such marriage was alluded to in a 1698 dispute over the ownership of a black man, a white woman and a mulatto child who was "by the Law of This Province . . . a Servant."[ 38 ] Clearly, the man and woman were married and the child was a servant for twenty-one years as prescribed by the 1692 law.
The third marriaage was that of Francis Peters, the Negro slave of Jonathan Baptista Carbury, and Mary, a white woman. The marriage occurred about 1680 and Mary thus became the servant of her husband's master for the duration of her husband's life, as prescribed by the 1664 law. After the 1692 law changed the servitude penalty for white wives of slaves to seven years, Mary began an eleven-year campaign to gain her freedom. In May, 1693, after hearing her case, the Provincial Court ordered her to return to her master "and remain as a slave according to law untill her husband a Negro dies."[ 39 ] As we have seen, the 1681 law officially repealed the 1664 law. But, the 1681 law seems never to have been enforced. Even so, the 1692 law clearly superseded 1664 and was, no doubt, Mary Peters' reason for going to court. The court, however, recognized that 1664 was never declared null and void and, therefore, any mixed marriages occurring under it, such as Mary's, were still subject to its provisions.
Eighteen months later, Mary tried again, and with the same results: "Mary peeters [ordered to] return to her master . . . and so serve his soe long as her now husband an Negro shall live."[ 40 ] Around the turn of the century, she evidently took her case to the Governor, but he returned it to the Provincial Court for another hearing. The court agreed to accept the case but wanted to wait until it could summon Carbury. "In the mean time," the court warned him in the summons, "use and intreat the said Mary Peters Civilly as becomes a Master."[ 41 ] In October, 1704, having exhausted her right to appeal, Mary had her last chance. He argument was not recorded, but it was insufficient to counter Carbury's appeal to the 1664 law. For the last time, the court ordered "that the said mary Continue a slave during the life of Francis Peters her negroe husband according to the same Law."[ 42 ]
The Peters case and the Glover case, cited previously, together reveal some inconsistency in law enforcement in seventeenth century Maryland. Whereas the Provincial Court applied the 1664 law in the Peters case, as was proper, the Charles County Court applied the 1699 law in the Glover case when, technically, the 1664 law should have applied. Furthermore, the Peters case contains the only seventeenth century Maryland reference to white slavery.
Despite the laws, masters were free to manumit their slaves. Elizabeth Brewer, in the same will that provided for Jeffrey Lisle's eventual freedom, stated that a certain black woman of hers should be allowed to buy her freedom, if she so chose. In another instance, John Godwyn freed his black woman, Catherine, as a jesture of goodwill. In an unusual case, Peter Doutery provided his slave Sambo and his wife Betty their freedom upon Doutery's death. In addition, Doutery provided them with a tract of land, cattle, pigs, clothing, bedding and "provisions of all sorts for one whole year."[ 43 ]
The statutes of colonial Maryland said little about manumission until a law of 1752 prohibited the manumission of elderly slaves who could not care for themselves.[ 44 ] From the foregoing, however, it is clear that in common law, masters could free their slaves. As we have seen, in 1715, when the Assembly was considering a major new slave law, the subject of manumission came up. Apparently the Upper House proposed some sort of constraint upon the practice, but the Lower House objected on the following grounds:
. . . and as to that part relating to the manumission of negro or molatto Slaves We think it is hard to restrain any master or Owner to sett free any well deserving negro or molatto Slave, for probity in such Person [sic, not property] is by means discouraged, no master or Owner being at Liberty Otherwise to recompence the good Actions of a well deserving Slave. . .[ 45 ]
The final version of the law contained no restraints on manumission and thus that common law practice continued.[ 46 ]
By the beginning of the eighteenth century, we can say the following about the law of slavery. The statues provided in absolute terms that all blacks were slaves. But case law revealed a common law practive of admitting petitions of blacks who felt they could prove exception to the rule on the basis of legal contract. On the subject of mulattoes there was more equivocation. The law of 1692 provided that the children of mixed couplings, whether legitimate or not, would be servants for twenty-one years. The law of 1715 outlawed interracial marriage and imposed a thirty-one year period of service on children born of mixed parentage.[ 47 ] The status of mulattoes must have been getting very confusing by the early eighteenth century. What for instance would be the status of a mulatto born of two mulattoes? It is well-known that the American colonies, unlike Carribean and Latin American colonies, did not recognize precise categories for people of mixed racial ancestry. The evidence above suggests the development of a common law tendency to let masters decide the fate of mulattoes as they saw fit.
For the period between 1700 and the American Revolution, evidence survives for thirty slave freedom petitions brought into Maryland courts. Most of them fall into three broad categories based upon the plaintiffs' grounds for freedom: intentions of a previous master not recognized by a present master; descent from a free white woman; and improper enslavement of blacks who lived as freemen in England before coming to Maryland. Eight other petitions were so scantily recorded that in most cases, only the outcomes are clear. One suit had to do with fraudulent indenture; another involved an East Indian who was really not of African descent; and one pertained to a black Spaniard captured in the Seven Years War.
Three of the thirty petitioners claimed to have been illegally enslaved in Maryland after coming to the colony voluntarily from England where they had lived as free men. All three lost their cases. In 1720, Richard Tanty, who is not specifically identified by race, explained to the Anne Arundel County Court that he was born and baptized in England and at age 10 was brought as a servant to Maryland. Once he was here, he claimed, he was illegally sold as a slave. Seven years prior to his petition, he said he was sold to Charles Carroll, since deceased, who, upon hearing Tanty's tale, promised to free him after seven years' service, now expired. On the basis of the foregoing, Tanty petitioned for his freedom. The court summoned Charles Carroll's executors, listened to but did not record their testimony, and rejected Tanty's petition.[ 48 ] Why they rejected it is unclear, but the action probably resulted from the lack of written or strong testimonial evidence bearing upon Carroll's intentions. The burden of proof lie with the black, and his failure to offer iron-clad evidence meant the durante vita precept took precedence.
In 1742, Negro Morat entered a petition before the Prince Georges County justices against Margaret Dick. Morat claimed to have come to Maryland from England as a cabing boy to Captain Joseph Beezly, who promptly sold him into slavery. At the time of the suit, Morat was in the service of Dick, from who he petitioned for his freedom. The court listened to Morat's case, as presented by his attorney Henry Darnall, and ordered him freed. Dick appealed to the Provincial Court, which, in 1744, declared the lower court's decision in error and pronounced Morat a "slave. . . during life."[ 49 ] The court did not record its reason for the decision. Presumably it had to do with lack of evidence.
In the third such case, Negro Pompey petitioned the Prince Georges Justices for his freedom in 1754 claiming that 14 years previously he had indentured himself freely in England to Captain William Richards for seven years. Richards brought Pompey to Maryland and held him as a slave. At the time of suit, Pompey belonged to Richards' widow, Christian, and her new husband, George Gordon, from whom he wanted his freedom. The court summoned the Gordons, listened to but did not record their testimony, and declared Pompey a slave,[ 50 ] presumably for lack of evidence on his behalf.
Tanty, Morat and Pompey, like Hagleton and Trunckett in the previous century, claimed to be English blacks who were exempt from the slave law of Maryland by virtue of their previous condition in England. Unlike Hagleton and Trunckett, they lost their suits. It would be tempting to say a trend is present here, but the number of cases involved is so small that such a conclusion is not warranted. If six surviving freedom petitions in which the plaintiffs sued for their freedom on grounds of their original masters' intentions, three were successful, three were not.
In 1702, Mingoe, "a Negro man belonging to Mr. William Stone," petitioned the Charles County Court for his freedom on the grounds that his former master, Joshua Doyne, deceased, "Did by Deed of Guift" grant Mingoe his freedom. It is not clear what, if any, evidence Mingoe offered for his case, but he lost.[ 51 ] Probably, he had no written copy of the supposed deed of gift.
In a similar case twenty years later, Negro Bess successfully sued for her freedom from Ruth Howard in the Anne Arundel County Court only to have the Provincial Court reverse the decision. Bess claimed that her former mistress, Anne Lambert, deceased, intended her to go free at age 25. Ruth Howard in her appeal argued first that the lower court's decision was contrary to the durante vita laws "to the great Annoyance of his Majestys Christian Subjects within this Province by allowing these Affricans the Enjoyment of liberty and of previledges Equall to those of English men . . ." Howard further argued that Anne Lambert had disposed of Bess to her without anything said regarding freedom for the slave.[ 52 ]
Anne Lambert's will of 1703 survives and throws a little light on the matter. She specified that:
. . . my Negroe man Mingoe and my Negro woman Bess and my Negro boye Mingoe and the childe Bess goes withall shall be free when [phrase torn out] Compleatly finnisshed [?] which is or may be in hand at the time of my Decease[.] my will is That my Negro girle Nan be free at The age of Twenty years which will happen in the [year] 1711.
Lambert also left land to her freed slaves.[ 53 ]
It is possible that the Bess in the petition was the same Bess mentioned in the will. Or she could conceivably be the child that "Bess goes withall." It is not clear to us today and perhaps it was not clear to the Provincial Court justices in 1722 when they declared Bess "a Slave to the said Ruth Howard during her life."
In the two cases above, blacks unsuccessfully sued for their freedom on the basis of what they claimed, without proof, were the intentions of former masters. In a third case in 1723, a different Negro Bess was able to prove her former master's intention and thereby won her freedom. She filed suit in the Somerset County Court against the Horsey family. Bess claimed to have been born a slave to Colonel David Brown who, before his death, stipulated that Bess would go free if she served through her twenty-first year. In fact, Brown's will did provide that "black Beette be learned to Read the bible and to sow with needle weell[,] to have good clothes and two cowes and calves when set free which I desire to be at the twenty Second year of her age she being Eight years of age last aprill  . . ."[ 54 ]
In her petition, Bess claimed to have faithfully served and accordingly been freed. She then engaged herself freely to Mrs. Hannah Horsey of Backcreek who subsequently refused to acknowledge Bess's free condition and treated her as a slave. Bess complained that Horsey did not provide her sufficient food and drink, threatened to sell her and her child, and that Horsey's son threatened to shoot her. It is significant to note that Bess signed her petition "Bess Negro" indicating that she was literate, as her first master has intended. The court summoned Hannah and John Horsey, examined them, and decided the case in Bess's favor.[ 55 ] Thus the Somerset justices upheld a master's will to free his slave.
The most interesting freedom suit involving the will of a master is that of 19 Eastern Shore blacks who, dissatified with a Prerogative Court decision handed down by Daniel Dulany the Younger, were actually able to prevail upon Governor Samuel Ogle to convene a "Special Court of Delegates" to hear their case. The suit is extremely well recorded and offers a rare look at the interpersonal relationships that could exist between master and slave.
The 19 blacks[ 56 ] were slaves to John Gibb of Queen Anne County, deceased. Their opponent in the suit was Gibb's niece, Janet Cleland. In the original suit in Prerogative Court, Cleland successfully challenged the executors of Gibb's estate, James Massey and John Hadley, for probating a will of Gibb's dated 1740 in which Gibb freed his 19 slaves and divided his holdings among them. Cleland claimed that the will was invalid and that the slaves and property were hers. Prerogative Court decided in her favor declaring the will null and void. The slaves, no doubt through an attorney, filed a writ of errors before the Governor, who impanelled a special court of the leading men of the colony: Benjamin Tasker the Younger, Charles Hammond, Benedict Calvert, John Brice and George Steward. They continued the case until June, 1752, when it was heard by a slightly different set of delegates: George Plater, Charles Hammond, Benjamin Tasker and Philip Thomas.
Janet Cleland's side of the story went like this. She was the daughter of Gibb's sister and left Scotland to join her uncle in Maryland to help him manage his estate. She agreed to give her inheritance in Scotland to John Gibb's brother, William, and in return she was to inherit John's Maryland estate. She said her uncle many times expressed his gratitude for her help. Unfortunately, in his last years, he was given to drink and had spells of "frantick madness." During these fits, John would write various wills, although he was clearly incompetent to do so. When sane, Cleland claimed, John would make it clear that his true will was that Janet should inherit his entire estate. John's slaves always tried to take advantage of his periods of indisposition. During his last sickness in 1740 they refused to do any work unless he would write a will freeing them and dividing his estate among them. It was this will that Massey and Hadley probated to Janet Cleland's prejudice.
Hadley and Massey's side of the story was quite different. Yes, they acknowledged, Cleland was Gibb's niece from Scotland and probably his closet surviving kin. But, they said, she had not given up any estate in Scotland, that in fact she had immigrated against Gibb's will and he took her in only because she "appeared to be in very low Condition at home." They denied that she had taken any prominent role in managing Gibb's estate, that Gibb's wife, who predeceased him by only a few years, had done most of the managing. The executors described Cleland as a wastrel who often ran off to live the high life in Philadelphia and elsewhere at John Gibb's expense. Gibb at one time or another wrote wills in her favor but destroyed them because of her "undutiful and headless carriage." They once heard him express his intention to "Cutt the Libellant off with a Shilling." Yes, they heard stories about the slaves trying to take advantage of Gibb but discounted them saying Gibb trusted his slaves more than he did his niece. They witnessed John write the will in question (giving the date as 1747) and said he was perfectly competent.
The will was entered in as evidence. In it, John clearly freed his slaves and divided his clothing and land among them. He left a horse, watch, gun, and some plate to various friends and a shilling each to Janet, brother William, and to William's son, John.
Depositions from numerous people confirmed bits and pieces of both sides of the story. Many acknowledged the strong influence that the slaves exercised over their master.
The Special Court heard all evidence and proclaimed valid the will favoring the slaves.[ 57 ] This is a simply astounding case. It shows us a particular situation where 19 chattel slaves had a very close relationship with their master. Either they won his love and respect above what he felt for his own family, or they were able to manupulate him incredibly to the point that he favored them over his own kin in his will, depending on whose side of the story one finds moer persuasive. Likely, the truth fell in somewhere between. Gibb related to his slaves as though they were his family. What is more astounding is that these 19 slaves were able to appeal a Prerogative Court ruling directly to the governor who impanelled a jury of the colony's top legal minds to hear the appeal. And the jury found for the blacks.
We see illustrated here not only evidence that the courts of colonial Maryland were still willing to entertain exceptions to the durante vita clause as late as 1751, we also see that the provincial government was willing to go to exceptional lengths to decide a point of law strictly on its own merits without regard to social convention. The will clearly freed the slaves, and several white people testified to the testator's competence to write the will thus confirming the slaves' case. On that strictly legalistic basis, the Special Court made its ruling.
In two final suits involving claims of freedom on a master's original intentions, the plaintiffs lost. Negro Ann lost a 1761 suit against Charles Smoot in the Provincial Court. Ann claimed through her attorney, William Brown, her mistress, Ann Smoot, intended her to go free upon the mistress's death. The executor, Charles Smoot (relationship to the decedent not stated), refused to honor any such commitment. Negro Ann originally brought the suit in Charles County, but the defendant sought and received a change of venue. The Provincial Court found for Charles Smoot.[ 58 ]
It appears that Negro Ann, like other blacks who did not get their masters' promises in writing, lost on that account. Ann Smoot's will names ten Negro slaves and to whom each was to go after her death.59 The name of Negro Ann does not appear on the list, possibly because Smoot did in fact intend for her to go free. Likewise, Negro Ann is not enumerated in a list of eleven slaves in Ann Smoot's inventory.[ 60 ] But there is no statement in the will providing for Negro Ann's freedom. That omission may be the factor that mitigated against her.
A final case in 1775 may indicate a hardening of liberal attitudes toward manumissions. Four blacks[ 61 ] petitioned the Somerset justices for their freedom on the basis of their master, Arsbald Stitt's will. The will does indeed seem to intend that they fo free: "I leave also in this will that Hager shall be Free and Athaliah [and] Zepheniah I leave to Hager there Mother and rose to Live with hager if she Pleases and to be Free. . ." Stitt also left a horse, tackle, clothing and other effects to the blacks and to Hager a 50 acre plot. Stitt was illiterate and appears to have dictated the will. William Knox and John Pollit, who were apparently the executors of Stitt's estate, answered the petition which the court then ordered "dismist and held for Nothing."
Stitt, who it seems had no immediate family, obviously had a strong emotional bond with his slaves. We can, of course, speculate upon the possibility that a blood relationship existed between master and slaves, but there is no supporting evidence. The court did not specify the grounds upon which it rejected the petition. Possibly the justices felt the stream-of-consciousness quality of the will was not sufficient in law to establish the blacks' freedom. Perhaps they just did not approve of a master freeing his slaves and bequesting his estate to them.
Of the nine cases in which persons of mixed race petitioned for their freedom on the basis of descent from a free white woman, five were successful, two failed, and three are uncertain. The two clear failures occurred within two years of each other in the second decade of the century and seem both to relate to the confusion noted above over the validity of the 1681 law. The law of 1681 repealed the law of 1664 and thereby implied that the offspring of a black male voluntarily wedded to a white female would be free. The law of 1664 has specified slavery for such offspring.
In the first case, 1713, Negro Lewis Mingo won a freedom suit against Henry Wharton in the Charles County Court on the grounds that he was the 31 year old son of a white woman.[ 64 ] That would put the year of his birth as 1682. On appeal to the Provincial Court the following year, Wharton argued that Mingo was the son of a white woman and black man lawfully wedded in the Church of England (date of marriage not specified) and was therefore a slave by terms of the law in effect when he was born. Now, if Mingo was born in 1682, the law of 1681 implied that he was free. As we have seen, there appears to have been wholesale refusal to recognize the law of 1681 by the courts of colonial Maryland. No exception here, the Provincial Court found for Wharton.[ 65 ]
The other case, two years later, involved a mulatto named Rose, the daughter of a white woman, Mary Davis, deceased. Rose sued Henry Darnall in Anne Arundel County and based her claim on a very interesting document, apparently written in the end pages of a Bible. The document was written by Rose's mother and may be summarized. Mary was the daughter of a London man and had a brother named John. She gave the Bible to her son Thomas who was fathered in wedlock by a black named Domingo, once the servant of a Calvert County man. Mary and Domingo were married in Calvert County and, at the time of writing (circa 1685) lived with the Lord Proprietor. Son Thomas was born in 1677 and was baptized by Mr. Weakley in the House of Richard Masome. James Thompson and his wife Ann were godparents. "This is here Inserted to Satisfy any and to whome it May Concern that my said son Thomas Came from a Christian Race--by his Mother," she wrote. Later she inserted record of Rose's birth which was in St. Marys County on August 11, 1684. Rose was baptized at Notley Hall by Mr. Richard Hebert, a priest, and Mr. Henry Wharton was godfather and Rose Hunt godmother.
This fascinating document illustrates the paradoxical relationship that existed between whites and blacks in seventeenth century Maryland. While the process of black enslavement and black degradation was in progress, one particular English woman voluntarily married a black, described as a former servant, and had at least two children by him who were routinely baptized and received into the Christian faith with white godparents. And yet the mother feared enough for her children's future that she proclaimed in writing in a Bible that they were descended from Christians through her. Unfortunately for Rose, the Anne Arundel justices were not impressed and declared that she "serve Dureing Life as a slave."[ 66 ]
In another case of 1728, the Baltimore justices freed a woman who was probably mulatto and who had outlived her black husband, a slave.[ 67 ] Thus, as the law of 1715 provided, she served her husband's master for the duration of her husband's life but had to go to court to prevent her husband's master from wrongfully enslaving her and her five children.
As we have seen, the status of mixed race offspring was a constant problem. The law of 1715 finally settled upon 31 years of service for persons descended of mixed parentage. By the second quarter of the eighteenth century, 31 seems to have been pretty well accepted as the magic number. Thus James Russells, a mulatto born of a white woman more than 31 years previously, sued for his freedom in 1721.[ 68 ] No record of the case's final disposition was located. In 1742, Negro Toby (actually a mulatto) complained to the Baltimore justices that he was born of a free white woman over 31 years previously and should be freed. The court ruled his age to be 30 and specified he should go free the following year.[ 69 ] In 1769, Frances Peck informed the Talbot justices that her mother had served seven years for having her by a black, as the law of 1715 provided, and that she, Frances, was to serve until 31. Her mother went free when her time was up leaving Frances in the clutches of a mistress and master who intended to keep her a slave. The justices found for Frances and she was freed.[ 70 ] Another mulatto named Newmal successfully sued his master for freedom in Prince Georges County in 1739, but age is not listed as a factor, only that his mother was white.[ 71 ]
The most interesting of all colonial Maryland slave freedom petitions is that of William and Mary Butler against Richard Boarman. The Butlers were distant cousins descended from a free white Irish servant, Eleanor Butler, and her husband, Negro Charles. William and Mary filed their first suit in 1763 and thereby began a legal odyssey that lasted 28 years. Their case is the best documented slave freedom petition and tells us much about the nature of race relations in colonial Maryland. We learn from it the particular circumstances that led to the enactment of the universaly ignored law of 1681. We see in it strong evidence of an extended web of kinship in a certain Southern Maryland family of blacks and mulattoes. We see a black family with a 100 year history that was well-known to its members. We see evidence of easy social intercourse that existed across color lines in Southern Maryland. And we see the extent to which the legal establishments of colonial Maryland could go in the name of justice for blacks wrongfully enslaved.
In the course of the case, the Provincial Court collected and recorded depositions and testimony from sixteen white people who were personally familiar with the Butler family. Many of these deponents were very old (from their sixties to eighties) when the depositions were taken in 1767. They reported things from their own memories back to early childhood. For events before their time, they retold stories they had heard from their parents and other acquaintances. From these depositions emerge an amazingly consistent set of stories about the Butleres. We get second hand eyewitness accounts of Eleanor Butler's wedding to Negro Charles, accounts of who their children were as well as their children's children down to 1767, commentary upon how the Butler family, particularly Eleanor, lived, and what kind of work they did.
Samuel Abell, Jr., was called upon in court to relate a conversation he had in an Annapolis tavern in 1764 with Richard Boarman, the defendant, and a Mr. Edwards. According to Abell, Boarman related the following:
Lord Baltimore a good many years ago, came into this Country to live and brought with him a woman named Butler. . . to wash and Iron and [she] boarded with his [Richard Boarman's] Grand Father, and that some time after they had been there, the said woman called Butler fell in Love with one of his Grand Fathers Negroes and wanted to marry him, and upon my Lord being informed... sent for her and Chid[ed] her, and told her that if she Married the Negro she would by that means enslave herself, and her posterity [according to the law of 1664], upon which the woman told him that she had rather marry the Negro under them circumstances, than to marry his Lordship with his Country, upon which he [Baltimore] told her she might go marry him, and be damned...
Abell futher testified that Boarman said the marriage did occur and from it, "came these two Negroes William and Mary Butler."
Abell inquired of Boarman if "there were not a good many of that Family?" Boarman replied that there were "about 120 of them, but that the Negroes by their Count made near three hundred of them, for that they had taken some Salt water negroes into their count. . . ."[ 72 ]
The implications of the case were far reaching. If William and Mary Butler were freed, as many as 300 of their relatives had claims to freedom. One can imagine many Southern Maryland blacks frantically searching for proof that they were part of the Butler clan.
The case must have been widely known and talked about at the time. Obviously many whites who owned slaves named Butler had a stake in it. Boarman apparently made no secret of the situation. One comtemporary justified retelling the story of himself on the grounds that "it was no secret, Mr. Boarman had told it to fifty people. . ." Boarman said he claimed the Butler progeny as slaves by terms of "a Law of this province whereby white women marrying of Slaves, should become slaves to the house of their Husbands master." This is a reference to the law of 1664, which was in effect when Eleanor and Charles married in 1681.
The story of the wedding was well known. Several of the deponents were able to give accounts of it as they heard the story from their elders who were either present or heard the story from Eleanor, herself. Eleanor had arisen early on the wedding day to clean the house of Major Boarman, where the ceremony was to take place. The Lord Proprietor, Charles Calvert, was also staying at Boarman's, and he summoned Eleanor, or Irish Nell as she was commonly known, to him to inquire if she in fact intended to marry Negro Charles. She said she did and, by all accounts, he "chided" her and told her that she would thus enslave herself and her posterity. Her reply was equally well-known. "She answered him that she rather go to bed with Charles than his Lordship."
The wedding was officiated by a priest named Hubbert. It appears that numerous whites witnessed the ceremony. One deponent recounted how his father, a little boy at the time, remembered being kissed by the bride and then running away from embarassment.
Nell and Charles bore at least six children: John or Jack, Sarah, Catherine (commonly called Kate), Elizabeth (commonly called Abigail), Moll, and Nan. Jack ran away to Virginia and, when overtaken, bought his freedom. Of Sarah we know little besides her approximate date of birth, 1690. Catherine ws born about 1691. She lived to adulthood and had four children: Jenny, Jack, Ned, and Pegg. One account said Kate, too, bought her freedom. Kate's daughter, Pegg, was the mother of Mary Butler, or Moll, as she was also known, one of the plaintiffs in the freedom suit. Charles and Nell's daughter Elizabeth was the mother of William Butler, the other plaintiff. Of daughters Moll and Nan nothing has been recorded.
One of the deponents, who knew Nell well, described a daughter of Nell's who died "as a slave of Mr. Boarman." The justices asked how he knew she was a slave. He replied that "she worked among the other slaves and lived as they did." He described how, upon her death, Boarman called for a spade with which he dug a grave to bury her. Nell was present and, in a distraught condition, cried out that her daughter's death "was the greatest loss she had met with since she was married."
The justices who heard William and Mary Butler's suit were quite interested to know how Nell and her children were treated, whether as slaves or as free people. They seemed to be searching for evidence of usage to guide them in their decision. The deponents were agreed that Charles remained a slave, but that Nell seemed to be treated as a free woman. She made a livlihood as a laundress, by spinning and midwifing and was also a field hand. One deponent, who remembered her, said Nell "appeared to do as she pleased, that she was a hard laboring body and made Good Crops." Others said Nell was free to move about and travelled frequently to visit and stay with her various children.
The children, however, were regarded as slaves, the deponents agreed. One deponent remembered as a young man being put to work with Jack and being told that Jack was a slave. Another said that "all the Descendents of . . . Nell that he knew lived and died Slaves they working and living as such except Kate," who had bought her freedom.
Charles and Nell's marriage apparently remained in tact. Several deponents knew them for years as husband and wife. One remembered them calling each other "my old man" and "my old woman." William Boarman's 1709 inventory lists "1 Elderly Negro man named Charles" and "1 old Irish woman."[ 73 ]
The Provincial Court mulled the case over for quite some time. Then, in 1770, it declared William and Mary Butler free. Richard Boarman, their master, filed an appeal to the Maryland Appeals Court.[ 74 ] In 1771, that body reversed the Provincial Court's decision. In 1787, however, Mary Butler succeeded in getting another hearing before the Appeals Court. Finally, in 1791, she was declared a free person. The court gave its grounds as follows. Since Eleanor Butler was a freeborm English woman, she would have to have been tried and convicted in a court of law of the crime of marrying a Negro before the penalty of the law of 1664 could be applied. Since there was no record of a conviction, neither she nor her children could have rightfully been held as slaves.[ 75 ]
Harris and McHenry report that the main point of agrument in the Butler Case was whether the law of 1664 (which provided for the enslavement of both white women who married blacks and of the children of such marriages) or the law of 1681 (which repealed 1664 and implied freedom for such women and children) applied in the marriage of Irish Nell and Negro Charles. The marriage occurred when the law of 1664 was still in force, but the children were all born when 1681 was in force. Harris and McHenry also report that 1681 was passed right after Nell and Charles' marriage at the instigation of Lord Baltimore. It seems his Lordship did not really mean for Nell to "be damned" for marrying Charles. He intended for 1681 to benefit her and her children. The Court of Appeals' 1771 reversal of the Provincial Court's decision freeing William and Mary Butler was based on the fact that 1681 only repealed 1664 but did not declare it null and void. Since 1664 was in force at the time of the wedding, it applied to Nell and her progeny. The Court noted that 1681 was framed by men not well-trained in law.[ 76 ] As we have seen, 1681 was not consistently enforced in Maryland anyway.
The Appeals Court showed some ingeniuos reasoning when it freed Mary Butler. The long delay between first petition (1764) and the final outcome (1792) may have been caused by apprehensions that a finding favorable to Mary Butler would lead to an avalanche of suits from others claiming descent from Irish Nell. Besides Richard Boarman's statement that between 120 and 300 people claimed such descent, the Charles County Court records contain several references to people named Butler (some identified as black or mulatto, others not) in a variety of legal matters: breach of peace, trespass, suits of debt, for concealing taxables, and others.[ 77 ] The Maryland Gazette has 1771 and 1772 runaway notices for Stephen Butler "a relation to Will and Moll Butler, who were Cleared at the Provincial Court; he says he will not serve, nor has any Mulatto a right." The ads describe Stephen as a wheelwright, sawyer, tight cooper and house carpenter who played the fiddle. Stephen was an inveterate runaway who had "so great a Correspondence amongst white People that he was never taken only by himself." His master, Leonard Boarman, said Stephen had "confessed to me and many others where he has been harboured and whose Houses he resorted [to]; That he has worked for several by Stealth, whose names I shall pass over in Silence this Time, but for the future, If I can possibly make Proof either against White or black, I will proceed against them as the law directs."[ 78 ] Stephen, like his family for nearly a century before, seems to have been pretty well integrated into the rest of society. There is no sense of physical separation by race. Obviously, the Butlers of Southern Maryland were well-established in society at large. It is not certain whether Mary's freedom in 1792 brought freedom for her kin. It may be significant that her freedom came at a time when tobacco was in a severely depressed state. Perhaps freedom for the Butlers relieved many plantation owners from maintaining an increasingly useless work force, but that can only be speculation. The importance of the Butler case, aside from the rare insights it gives us into the lifestyle of one particular slave family, is that the courts of Maryland could still be used as late as the end of the colonial period by blacks or mulattoes to petition for their freedom.
There were three freedom petitions in the eighteenth century that show the crafty machinations of unscrupulous masters who would use any means to make servants or slaves of free people. In 1721, Margaret Quando, a member of another large Southern Maryland family of free blacks and mulattoes, complained to the Provincial Court that Thomas Wheeler of Charles County was by foul means making seven year servants of her daughters, Mary and Elizabeth. According to Margaret, Wheeler had been bound by the Charles County Court for the appearance of a white woman named Anne Reny, who was suspected of bastardly. Wheeler then persuaded the young and impressionable Quando girls to agree to seven year indentures enforceable upon Reny's failure to appear. Then, to get the indentures enforced, Margaret charged, Wheeler spirited Reny into Virginia so she would not appear in court. Wheeler then got a court order putting the indenture into effect. He took the girls to his house as servants and has thwarted efforts of the Quandos to get relief in the county court. Two Provincial Court justices, James Stoddart and Daniel Dulany the Elder, endorsed the petition and returned it to the Charles County Court for consideration. The county court mulled the matter over then ordered the Quando girls to be freed and their mother to receive 2,148 pounds of tobacco for costs.[ 79 ] It appears that Wheeler had some help from the Charles County justices in his little scam, but Margaret Quando successfully invoked the power of the Provincial Court for redress.
The second case illustrates the complications arising over the status of mulattoes who were not born of one white and one black parent. In 1731, Mary Beneta, a mulatto, pleaded for the freedom of her three children before the Provincial Court. Beneta stated that she was the daughter of a free white woman and served John Newman of Baltimore County until age 31, as prescribed by law. During her servitude, she bore three children for whom the Baltimore justices awarded Newman 7,000 pounds tobacco to support. To satisfy that debt, Beneta went before the county justices in 1727 and bound the children, Sarah, Zachariah, and Deborah Lett, to William Rogers as servants until age 16 in return for which Rogers was to pay the debt to Newman. Rogers got the county justices to declare the three children servants until age 31. Sarah Lett was above 16 at the time of Mary Beneta's petition. Beneta asked the Provincial justices to declare the Baltimore justices in error. The Provincial justices ordered William Rogers to appear at the next court.[ 80 ] No susequent record of the case exists. As in the Quando case, a white master seems to have used a county court to confer legal respectability upon his attempt to exact illegal service out of black or mulatto children. As in the Quando case, an aggrieved parent sought redress from the Provincial Court.
The third case also illustrates the confusion arising over second and third generation mulattoes. In 1756, Mulatto Daphne complained to the Prince Georges County justices that she and her three children were illegally held as slaves by Henry Watson. Daphne stated that she was the daughter of a mulatto woman named Mary Brent who was the daughter of a free white woman. Therefore, she, Daphne, was "born in a State of Freedom," which was technically correct since the laws said nothing about the status of the children of mulattoes. Daphne pleaded for the freedom of herself and her three children, Sarah, Dick, and Hannah. Her master was summoned to appear in the next court,[ 81 ] but no subsequent record exists.
In another freedom suit recorded well enough that we have some sense of the issue involved, and East Indies native named William Creek, who was "reckoned as a Slave," successfully petitioned the Anne Arundel Court for his freedom in 1736. Creek had been brought to England at a young age, Christianized, and put to work as a servant to an apothecary. When he incurred his master's wrath by "giving Some Person a Dose of Cantharides for a Love Powder," Creek was sold to a Mr. Chew, grandfather of his present master, for seven years. That seven years had stretched to 19 and Creek wanted his freedom. The court decided in his favor.[ 82 ] The case is reminiscent of those of Thomas Hagleton and Ralph Trunckett.
One case that stands by itself is that of Juan Domingo Lopez, a black shoemaker from the city of Santo Domingo in the Spanish colony of Hispaniola (now in the Dominican Republic). In 1761, during the Seven Years War, Lopez and several friends of his, all free black subjects of the King of Spain, shipped out as crewmen on the Spanish privateer "Polena." They were captured by an English privateer captained by Henry Brown. Brown hauled his prize and her crew before the English Court of Admiralty in Jamaica, which authorized him to sell the vessel and its appurtenances and also to sell the black crewmen as slaves. Lopez ended up being sold to the Principio Iron Company in Baltimore County and it was that company he sued for his freedom before the Baltimore justices in 1768. The company's attorney, Francis Phillips, got a change of venue to the Provincial Court, which heard evidence in 1770.
Lopez's argument was that, as a free subject of the Spanish king, he could not be rightfully sold in slavery in the British colonies. His petition referred to Lopez's "Natural Right" as a free person and called his state of slavery "odious to the British Constitution." Samuel Chase was Lopez's attorney and it seems appropriate that Chase would use language typical of the patriot cause during the Revolutionary period. The Provincial Court continued the case for several sessions then dismissed it. Chase entered an appeal.[ 83 ] Unfortunately, no Appeals Court records have survived for this period so Lopez's fate is a mystery. His case touched upon slavery issues that had been important early in the colonial period; he was captured in time of war but was obviously a Christian and a subject of a soverign monarchy recognized by England. The reasoning of the Provincial Court in dismissing his case would be very interesting, but it is not recorded. Likewise, the action taken by the Appeals Court would be interesting to know.
The eight remaining freedom petitions are so scantily recorded that all we really know is the outcome of each. They date from 1752 to 1775. Of the eight, seven were successful and resulted in the freeing of a total of five blacks and five mulattoes. The eighth failed and resulted in the continued enslavement of a black.[ 84 ]
For the entire colonial period, we have evidence of 44 court actions initiated by individuals who felt they had legal justification for release from servitude under the slave laws of Maryland. Nineteen cases resulted in decisions favorable to the plantiffs and freedom for a total of 46 individuals. Sixteen decisions were unfavorable and resulted in continued servitude for 19 individuals. The results of nine cases affecting 14 individuals are not known. (See appendix).
The balance between favorable and unfavorable decisions (19 to 16) suggests a general trend of even-handedness throughout the colonial period. We may fairly speculate that there was an overall tendency in the courts of colonial Maryland to consider slave and mulatto freedom suits on their own merits and to render decisions free of bias. It may be significant to note that half of the unfavorable decisions fall between the years of 1692 and 1715 with no favorable decisions during that same time. This period corresponds directly to the period during which Maryland was administered as a royal colony. Considering the general English aversion to slavery, one might expect the trend in this period to be quite the opposite. The again, this is also the period of the Protestant ascendency in Maryland. Carl Degler and others have argued that the presence of Catholocism in Latin American colonies served to mitigate the conditions of slavery there. Is it possible that Maryland's 23 year period of unfavorable decisions represents a temporary hardening of attitudes during the Protestant revolt against the Catholic policies of the Proprietary?
While that is interesting speculation, the general tendency of fair dispensation of justice cannot be denied. The statutes provided for across-the-board enslavement of blacks and mulattoes who could prove exemption by virtue of previous contracts, descent from free white women, intentions of masters to manumit, previous condition in England, and fraudulent maneuvers of would-be masters. Thus a common law tradition existed which puts a different light on the slave law of colonial Maryland.
We have records of 79 blacks, mulattoes, and white spouses of blacks who used the courts of colonial Maryland to seek their freedom. In view of the number of court records lost to us, that number may have in reality been double. Even so, the total number could still only be a fraction of one percent of the total number of blacks and mulattoes who lived out their lives as slaves and were never able to use the courts to their advantage. This chapter, therefore, tells us more about the courts than it does about the condition of slaves. It tells us that while very few black servants had the means to use the courts, those who did were given treatment consistent with fair dispensation of justice as it was understood in the English-speaking world of the seventeenth and eighteenth centuries. One can easily dispute the morality of slavery in the first place, but it was legal. Morality and legality are not always the same thing. Given that slavery was legal under the statutes of colonial Maryland, we can say that the courts, acting within that perspective, applied to blacks the same concept of justice that was considered due English subjects under the British Constitution.
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