>> extensive samples of watergate evidence including documents, oral histories, and vintage television clips are available to explore online at nixonlibrary.gov. next, william thomas teaches a class on some of the lawsuits brought by slaves who soon for their freedom during the antebellum period/ he outlines the arguments they used and emphasizes how most suits affected not just one person but entire families. >> good morning, everybody. let's get started. today, our subject is freedom

suits, suits brought by employees, families, and how they posed a challenge to the constitution and under the constitution, how they posed a challenge to american slavery. most of us are familiar with dred scott, and you already chief justice roger tommy's majority opinion in the dred scott case. you read that opinion and it is notorious in american history for the blatant racism in it, for the sanction to human property under the constitution, and for denying black citizenship. and denying blacks even as persons under the constitution. dred scott was one type of freedom suit. it was based on his physical presence in a free state, illinois, and his physical presence in wisconsin, a free territory. it is often presented in

american history textbooks as if it were the only freedom suit in american history to go to the supreme court, the only, uniformly presented as dred scott, one man bringing a freedom suit. but when we look into it closely, there were thousands of freedom suits in american courts. all of them challenging the notion of slavery under the constitution. what we are looking at here is a long line of anti-slavery constitutionalism. that is our subject for today, what are the freedom suits about, what did they do, and how do they challenge the concept of slavery under the constitution? it is important to recognize

these suits were beginning from day one of the united states in 1787, 1788. even before in the colonial period as well, and certainly in the 1780's during the articles of confederation. the suits were coming forward in various states, maryland and virginia in particular. dred scott's argument was that he had been on free soil and therefore was free. it is important also to recognize that argument had been reprised in previous freedom suits and various state courts, including missouri. in the 1820's, in particular one case laid down the concept of once free, always free. once having gone to a free territory, and enslaved person having been returned to a slave

state like missouri was in missouri law forever free. many of these freedom suits took on some of the most high-profile people of the day. you can see here charlotte depew's lawsuit against henry clay. he was the outgoing secretary of state at the time, he had been speaker of the house, was one of the most well-known politicians, was a candidate for the presidency. dupuy sued clay. hundreds of lawsuits in washington, d.c. hundreds in st. louis, missouri. lawsuits in new orleans, in baltimore, in various parts of maryland and virginia. there were thousands of these lawsuits. some of the same concepts we see in dred scott, which we will talk about in a minute, come up

in earlier cases. notably, one case you have looked into, mcqueen against john hepburn. what were the central elements of that case in 1813? anybody? >> her grandmother or great-grandmother was free, that she was free. they overruled most of the testimony she presented. >> right, good. excellent. the mcqueen case was based on the claim she made that her ancestor had been taken to england and resided on free soil for three years before coming to the maryland colony. instead of being sold as an indentured servant for seven years, she was effectively enslaved upon her arrival in the

maryland colony. this ancestor had been from new spain, ecuador, present-day ecuador. she was perhaps african, perhaps indigenous native american from that area of south america, and had been taken to london, and resided there. despite that, chief justice john marshall in the 1813 decision, affirms the hearsay rule. it is designed to keep out oral testimony about the ancestors of enslaved people. her free status, all of the evidence for her free status, her ancestor's free status came from depositions in which people said my mother said, or i heard about this, it was secondhand testimony.

marshall's decision had rendered that testimony inadmissible. in all future cases as well. and marshall's decision was designed to protect property rights. in fact, marshall invokes the idea of property and defending property rights in that 1813 decision. in queen v hepburn, there is something we need to hold in our mind. an assent was written in which it was strongly implied that slave people are not property under the law. and in particular, and cases where a person's freedom was on the line, the court should allow any and all evidence, even if it is hearsay, they should allow it in, because when a person's

freedom is on the line, the court should lean in favor of freedom, in favor of liberty. duvall, as it happened, had pioneered many freedom suits in maryland. he knew about all of the cases in which hearsay had been admitted. under the maryland law, they allowed hearsay testimony. but when the supreme court ruled in 1813 that hearsay was inadmissible, in a way that shuts down a certain line of freedom suit. claiming freedom on the basis of an ancestor became so much more difficult to prove if you couldn't use the kind of

depositions or testimony, oral testimony, family lore in lieu of written documents, right? and so ma mcqueen did not win her suit, but hundreds of other enslaved people and families did win their suit. dred scott did not win his, but hundreds of others did. if we can compare just for a minute, what are the similarities between queen v hepburn and dred scott versus sanford? what are similarities? you all mentioned that dred scott's claim was like queen's. he was saying he was free because he had set foot on free soil where slavery was illegal in illinois, and under illinois law, setting foot in illinois, that was immediately a emancipatory.

he was also free because he had been taken to the wisconsin territory, where slavery was barred under the missouri compromise above the 3630 line. i want to draw your attention specifically to another similarity between dred scott's case and queen v hepburn. in my view this is the most important similarity between them and it characterizes all of the freedom suits we will talk about. that is this: both were family-based freedom suits. i said we often think of rev scott's case as one man, dred scott, but harriet scott, his spouse, filed her freedom suit at exactly the same time. she had been taken to for

selling in -- fort selling in wisconsin and sold to transfer to dr. emerson, who enslaved dred scott. think about that for a second. she was sold effectively in a free territory. if slavery is not legal under american law in the territory of wisconsin, how is it that harriet scott could be sold there? not just taken there, but sold. their daughter eliza was born on a steamer up the mississippi river above the 3630 line. their other daughter, lizzie, was born in missouri upon their return. so dred scott v sanford is not

just about dred scott. it is about harriet and dred and eliza and lizzie. it is about a family who in various ways have different claims to freedom, right? eliza is born in a free territory and lizzie is born upon return to parents who have effectively under law, possibly, freed. i just want to make this clear, the dred scott case is a family freedom suit. like queen v hepburn, and many of the others that came forward and washington, d.c. the other introductory point is this, all of these freedom suits

aimed toward limiting slavery's reach. you think about all of the freedom suits, they are about defining slavery as subscribed -- as described by something. it can exist only by law in this way. if there are wills and contracts, as we will see in a minute, slavery is void in those cases. in other words, almost every freedom suit if we step back and look from 30,000 feet at what is happening, all of these freedom suits are finding slavery as something local. freedom is national, the norm, slavery is local. freedom is national, slavery is circumscribed, it is tightly defined. it can only go as far as the law in its particular places.

these freedom suits, again, today's point is, they are the longest line of antislavery constitutionalism. that is the idea that the constitution did not confer legitimacy on slavery. about these suits generally, just broadly. we will look at one in particular here. it is important to recognize everything was on the line here. black plaintiffs directed these suits. black plaintiffs planned these suits. these were determined legal actions. african-americans had accumulated years of legal knowledge and know-how and experience, sophisticated

strategies of negotiation and working through the law. they passed these ideas down from generation to generation. this is another theme we will see today, a lot of these cases are multigenerational. grandparents, next generation, generation. the second is something we have talked about before, and that is that the freedom suits were civil actions. what does that mean? can the defendant slaveholder testify? no, they can't. in a civil action, civil suit, the defendant can't testify, the enslaved plaintiff can't testify. the point is the defendant slaveholder's have to rely on other witnesses. they cannot use their own authority, their own reputation to try to place themselves right before the court.

in effect, their freedom suits put the slaveholders on the defensive. the slaveholders fundamentally had to defend slaveholding individually in these suits. the third broad point is this. a lot of the freedom suits, in particular the ones we will look at today, they were an effort to stop, to interrupt the potential breakup of a family. ok? the separation of families is at the heart of many of these freedom suits, because by filing a suit, the mechanism of the court would at least for the moment delay the impending sale

and breakup of a family. here is an example. you all know that my team here at the university of nebraska is producing a documentary film about one of the freedom suits. the case we will look at today. here is just a storyboard we have come up about this, to give us a sense of this. >> let me through. let me through. wait, wait! let me through. you are holding my mary! here, it is signed. >> standdown. >> mary!

freedom papers, signed. my wife, mary -- mary! she is free! daniel! daniel! >> ok, at the heart of this story is a central fact, that slaveholders throughout the entire period here from 1800 until 1860, were separating families and selling people, or attempting to sell them into the interstate slave trade with deception and speed. this is what we might call sudden sale. slaveholders used this tactic of sudden sale, deceive the

enslaved, not tell them what is happening, transport them quickly out of washington, d.c. into maryland, and then on the ships or on the train into the deep south, louisiana, to the sugar fields, or the cotton fields of mississippi. these sudden sales were meant in some cases to avert possible freedom, to avert what the law might dictate in a particular family that might have a legitimate claim to freedom. to place people suddenly out of the reach of the courts, to rip them away from their family networks, remove them from the possibility of being able to contact an attorney, much less gather witnesses for their case. how could one gather witnesses

for freedom suit, having been sent to louisiana, if they were from maryland? so today, we are going to concentrate on the story, on the case of james ash versus william h williams. this is a suit prior to dred scott where the chief justice also wrote the majority opinion, and i think it is important because this is a case where he creates a sort of legal fiction that he will later deploy in dred scott. i think you will see what i mean by the end. only when we look at cases like asher v williams and the long history of freedom suits can we see that the challenge they

posed to slavery under the constitution was such that roger taney was willing to go to great lengths to avoid, as he does in dred scott, to avoid recognizing black people as right bearing under the constitution. that is what the dred scott case ultimately does this is a deep lie at the heart of the dred scott decision and one we will expose today. first, james ash. he is part of a large family from prince georges county, maryland. he was enslaved and many of the people in his family were enslaved, of course. he is a brother in law of daniel bell and a brother-in-law of ann

bell, both of whom are the children of lucy bell, the matriarch of the family. she had already negotiated for her freedom and it appears she was living as a free woman in washington, d.c., had moved from prince georges county to washington, d.c. and was living as a free woman. she lives to the age of 99, ok? she dies in the summer of 1862. just after washington, d.c. emancipation is affected in the middle of the civil war. the point is, in 1862, age 99, she saw the last of her children and grandchildren free.

but the struggle for their freedom goes back to the 1830's. think about this as a 30 year, more than 30 year, three generation struggle for freedom. using the courts, where possible, negotiating, navigating, accumulating legal knowledge and passing it on. in 1862, her children, ann, daniel, and caroline bell bought a headstone for her and she is buried at congressional cemetery with a headstone dedicated to their mother. william h williams was one of

the most notorious slave traders in washington, d.c. he owned the yellow house, a slave jail, and in the parlance of the day, was sometimes called a slave pen. we already looked at the ann williams case, and that was similar in that the tavern was a slave pen. william h williams, by the 1830's, is the single largest slave jail in washington and it is called the yellow house. james ash was taken there in 1839. a few months later, a man named solomon northrup was taken to the yellow house.

and you may know solomon northrup from "12 years a slave." he is the author, the movie came out a few years ago, an academy award winner. solomon northrup, who was kidnapped and taken to be sold to louisiana and the southwest, was taken to the yellow house after he was kidnapped and he wrote about it this way -- this is how northrup described the yellow house. "the room was about 12 feet square, the walls of solid masonry. the floor was of heavy planks. there was one small window cross ed with great iron bars with an outside shutter securely fastened. the furniture of the room in which i was consisted of a wooden bench on which i sat, and old-fashioned dirty box stove,

and decide these in either cell there was neither bed nor blanket nor anything whatever. the yard extended rearward from the house about 30 feet. on one part of the wall there was a strong iron door opening into a narrow covered passage. leading along one side of the house into the street. the doom of the colored man upon whom the door closed, was sealed. the top end of the wall supported one end of the roof that formed a kind of open shed. underneath the roof -- the outside presented only the appearance of a quiet residence.

a stranger looking at it never would have dreamed of its execrable uses. strange as it may seem, within plain sight of the same house, looking down from its commanding height was the capital. the voices of patriotic representatives boasting of freedom and equality and the rattling of the poor slaves's chains almost co-mingled. a slave pen in the very shadow of the capital." we can see that right here. we have capital square, here is the yellow house. we will talk about the bells where ash is in just a second. daniel bell worked at the navy yard over here. a white slaveholder family that the bells and up suing are here at armistead's residence. the white house president's

house is just down pennsylvania avenue. where do we start with the story? ash was seized and prince georges county in 1839 in one of these what i would call sudden sales. he was taken quickly and sent to the yellow house. williams planned to transport him and sell him in louisiana. when we pulled back and look at the broad scope of this interstate slave trade, we are talking about between 1820 and 1860, 1.5 million people sold out of maryland and virginia and delaware and sent into the south, the cotton south and sugar fields. 1.5 million people. 186,000 children.

at least 260,000 spouses separated. ok? one scholar has estimated that every 3.6 minutes between 1820 and 1860, a family was broken up and a person was sold. every 3.6 minutes, a person was sold, for 40 years. the scope the skill something we have to reckon with and think about. every 3.6d migration minutes for 40 years. it's there that he somehow has the resources. probably because he was a member of the bell family and they were not far away.

it's complicated and involves everyone in the bell family. freedomh claimed his based on the provision of a will. the will of maria greenfield. she had no children of her own.

she bequeathed all of her properties, including enslaved people. james ash, and including and bell. -- and bell. -- anne bell. greenfielder nephew who was in tennessee. in tennessee in 1824. dozens of enslaved people working in cotton fields. he is a large planter/ shareholder. but bequeathed with the following provisions. the key to the whole case.

provided quote he shall not carry them peace, church greenfield. shall not carry them out of the state of maryland or sell them eventone, either of which i will in advise setting free for life. so this will is in all and it's theear last statement of the will. the last thing. not the first, where there are other confusing matters, but it is the final summation. she places this provision. shall not carry them out of the state of maryland and he shall not sell them to anyone, in maryland or elsewhere.

ok. you're probably thinking, wait a minute, the will cannot be the whole story here with the timing of the lawsuit. the will was in 1824 and ash is sold in 1839. what happened in the intervening period and why is ash suddenly sold against the provisions of this will? first of all, we need to recognize, for years gerard greenfield, the nephew, did nothing to violate the will. this will meant that gerard greenfield in tennessee had to keep james ash and ann bell and others who fell under its provisions in maryland. he could not sell them. and so in this situation, ann bell in

particular moved to washington, d.c., lived on her own. she hires herself out. she effectively lived as a free woman in a free manner. james ash was unable to do that. it appears he was continuously enslaved on a plantation in prince georges county, but probably hired out by gerard greenfield in tennessee. he has hired out james ash to work, and he is taking all of the proceeds, of course. well, that is the situation until in the summer of 1835, 11 years after this will, there is a riot and a strike at the navy yard. there is chaos in the city of washington. in that moment,

daniel bell, ann's brother, james ash's brother-in-law, daniel bell decides to begin a delicate negotiation for his wife mary and their children. daniel bell was an enslaved blacksmith at the navy yard. there were about 13 enslaved african americans at the navy yard. there were some free blacks working at the navy yard. one of his associates at the navy yard, a free black man named joseph thompson, had won his freedom in court on the provisions of a will. so daniel bell worked side-by-side with joseph thompson and we can be

sure they talked about these matters, right? but in the navy yard, one of the foreman was a man named robert armistead. live right here, close to the navy yard. robert armistead was the slaveholder who held mary and the six children. ok? a white man, a foreman in the yard. not particularly wealthy. his principal wealth really was marianne the six children, mary bell. daniel clearly knew two things about robert armistead in the summer of 1835. he knew that robert armistead had signed a memorial for the abolition of

slavery in washington, d.c. it was circulated in 1828. 1000 or more white men signed it. 90 white men at the navy yard worked there and signed this petition, this memorial, which was sent to congress saying slavery should be abolished and the district of columbia. bell knew that armistead had put his name on that memorial. he also knew that the three justices of the d.c. court had also signed that memorial. everyone probably took note of that. but he knew one other thing, too , and that was that robert armistead would die. he was sick. we don't know the cause. increasingly, his

health was failing. he left the navy yard, he could not work any longer. he was effectively in the alms house. daniel bell goes to robert armistead and he asks him for a deed to free mary and his six children. he does this in the late summer of 1835. washington, d.c. is in the middle of this labor strike, this riot, there is confusion and chaos. but robert armistead signs and road arises and has witnessed the official deed of emancipation for mary bell and the six children, you can see their names right here on the screen. this is the original deed of emancipation for mary bell and their children. this is a joyous moment, right? daniel

bell is still enslaved at the navy yard but he appears to have negotiated for the freedom of his wife and children. two days later, robert armistead dies. ok? his widow, susan armistead, begins what will become a two decade effort to overturn this

deed. susan armistead, the widow, takes the position that this deed is invalid because robert was out of his mind in his dying days. that he was not of sound mind. she six to overturn the will on those -- she seeks to overturn the will on those grounds. what we have here, we are going to pause for second, is different kinds of freedom suits developing. different tracks of these lawsuits. one is ash's and ann bell's stemming from the 1824 will, based on the provisions of the will. then we have the potential set of second track of a freedom suit stemming from the armistead deed. the deed is

good, it is valid and cannot be overturned. and we have a third kind of track as well, maybe what ann bell will claim, and that third track is s s s s s a free person for more than 10 years was de facto freedom under the law. the maryland courts had pretty much decided that. ann bell potentially from 1824 until 1836, if she had been nothing as a free woman for more than 10 years, she could file a freedom suit and claim for once and for all, and the court might determine that she is free. we have three different pathways. well, so, after daniel bell

negotiates the deed of manumission, that sets everything in motion. gerard greenfield attempting to sell him. it is complicated, let's wrap our minds around it. susan armstead clearly is attempting to subvert the will. excuse me, the deed of manumission. she is in touch with the greenfields. she essentially tells them that daniel bell has been manipulating robert armistead, her deceased husband, and that daniel bell needs to be dealt with. the first step she takes in order to possibly make this

deed of manumission, this deed of emancipation unfounded, unsound, is to attempt to sell daniel, get daniel out of the picture. and so daniel bell is summarily sold by we think the greenfields. we are not sure, but there seems to be a connection. the minute the word gets out the word gets out that daniel has negotiated a deed of manumission. it comes full-circle in his slaveholder -- and his slaveholder sells him in an attempt to get him out of washington, d.c., separate him from mary and the children, and then susan armstead can deal with mary and the children and subvert the deed of manumission. everybody with me? this is a dramatic moment, because in september of 1835, daniel bell

is seized at the navy yard, he is at the blacksmith shop and slave traders -- these are not policeman, these are not constables, these are hired thugs. they work for the slave trader. williams h williams, people like that. they rush the shop and take daniel bell down to the ground and they haul him off. it appears he is taken to the yellow house also. in september of 1835, daniel bell is seized and he is about to be

sold. what does he do? he sues for his freedom. his trial does not take place because there is a friend of his, a marine colonel at the navy yard, that he seeks his help, and that marine colonel helps daniel bell by his freedom. -- buy his freedom. so daniel bell negotiates for his freedom and he pays over $1000, this is two years wages. think about that in today's terms. two years full wages to buy his freedom. the bell family recognizes that susan armistead is not going to let go, and she has already attempted to have daniel bell sold and separated. at this

moment, annuals sister ann bell filed her petition for freedom, and she sues gerard greenfield in tennessee for her freedom, claiming she had been living as a free woman. he doesn't respond, the case goes on, summons after summonses. it drags on for years. but here is what we need to know. although ann bell had been living as a

free woman with lucy bell, her mother, and now daniel bell had bought his freedom, right? and presumably the deed with mary and the children liberated them. the fact of the matter was that the greenfields have been quietly bequeathing them to others all along between 1824 and 1836, over those 11 years, from one generation to the next. essentially ann bell have been passed down on paper from one greenfield to another. and their precariousness of ann bell's situation was that she too could be seized like her brother and summarily sold possibly before she could get a freedom suit and -- in play. but more particularly, so could her children. the terms of that will were for her, not her children. gerard greenfield possibly could attempt to sell the children. word of ann bell's freedom suit spread quickly in the greenfield family, and susan armistead within a month of that began trying to maneuver to overturn the deed of emancipation for mary bell. we have daniel and

mary over here and we have ann suing gerard greenfield, and we have james ash. susan armstead bided her time, we did for the right opportunity to seize mary and the children as her property. she drags out the probate for as long as she can on roberts will. she continues this whole time to hire out mary and the children. she is hiring them out and mary is claiming her freedom. mary gets a freedom certificate from the court based on the deed. it is probably the case that mary bell try to negotiate with susan armistead, but susan armistead would not budge. years go by. we are not sure of the timing or how it was coordinated, but in 1839, ann bell's suit against gerard

greenfield had stalled, that gerard greenfield decides to sell james ash. if he can execute the sudden sale, maybe he can get around the provisions in the 1824 will. james ash is seized, taken to the yellow house, and potentially is going to be sold south. this is the lawsuit that ash brings against william h williams. he is at the yellow house and he is being held there, and james ash filed his suit against william h

williams, and this is the case that will go to the supreme court and taney's decision is a precursor for dred scott. what does ash argue and what does williams argue and what does taney decide? ash argued that the will, but terms of the will had to be followed. there is an old principal and law that the intent of the will needs to be carried out. in a jury trial, the jury agreed and awarded ash his freedom. a month later, ann bell wins her freedom suit. james ash has won his freedom

suit on the basis of the will, and ann wins on the basis of living as a free woman. she was also involved in the will that she made her case on having lived for 10 years as a free woman in washington, d.c. in fact, the judges instructed the jury -- think about this, ann bell had purchased property in the city, she had built house , she had made contracts -- taney's decision in dred scott should be ringing in your head. unbelievably, she even hired an enslaved person from the greenfields. so she had a contract with the greenfields. can an enslaved person make

contracts? this is of course the issue, and the judges said these acts are "inconsistent with the condition of slavery." the greenfields knew about this and did nothing in response and the jury could infer that ann was free. so james ash has won his case. williams appeals to the supreme court. this case raises a vital question, doesn't it? it is now before the supreme court and it comes to the court in 1843. it raises the vital question of whether an enslaved person can receive a bequest of freedom through a will. if an enslaved person is property under the law, it would be hard

to argue that they could , but if enslaved people are persons under the law, than possibly they could. it posed a fundamental question of whether slaves were property under the law, or human beings. not surprisingly, the slave traders take the most unambiguous position possible. william h williams's argument is the following, "negroes by the laws of maryland are housel property -- household property precisely as money in the funds or

effects." they say that freeing an enslaved person through a will leads to a repugnant conclusion that enslaved people are something other than property. this is much the same logic that roger taney would deploy in dred scott's case. what is ash's argument? james ash has a young attorney named joseph bradley who is antislavery, abolitionist in leaning. he had defended and abolitionist editor in a very controversial trial, a high

profile libel case in 1835 in washington. and bradley makes the argument that enslaved people are people, are human beings, of course. he positions the argument around human rights. and he also cites queen v hepburn, but he points to the dissent that said courts should lean in favor of freedom, in favor of liberty. bradley also at trial made the argument, and i quote, "although they are personal property, yet they are also recognized as persons and are so called in the

constitution of the united states, and are capable of receiving a bequest of freedom." so ash's argument through bradley is tied to the constitutional question here, are enslaved people persons under the meaning of the constitution? we have talked about in this class, and what does that mean? now, it may surprise you that roger taney upheld ash's freedom in this case. in 1843. james ash achieved a stunning victory, didn't he? his case is one of only a handful of freedom suits at the supreme court to be affirmed for freedom. and taney renders this opinion that is meant to, in his view, keep the property rights of slaveholders

protected. nevertheless, ash achieves a stunning victory. after all, he takes on the yellow house, william h williams, he wins his freedom at trial, and it is upheld at the supreme court level. why? how? taney's opinion says ash's freedom, and he says this without a hint of irony, took affect the moment he was sold. the moment he was sold, he is free. which seems like a contradictory argument. but what is he really saying? on the one

hand, what taney does is he is recognizing that the property rights of slaveholders like himself, and that he believed in pointed one-way, and the principles of the intent of the will pointed another. one is a public policy matter about constitutional property rights and how they take effect across united states, and the other is a private civil matter, but nonetheless, extremely important in the law for how wills are administered. ok. he clearly

wants to protect the property rights content of the slaveholding class, and he doesn't want to do anything that would affirm the idea that we just mentioned that ash presented, that african-americans were rights bearing persons under the law and constitution. he was not going to do that. what does he do? he creates a legal fiction, i think, and that is this -- that there are three people involved in this will and bequest. wrap your mind around this, there are three people. there is maria greenfield, who writes will, there is james ash, the chattel, the enslaved property, who has no rights in taney's view, and who is simply a piece of property. he actually accepts the argument that the slave trader's attorneys make viewed and then -- make. and then there is james ash in the same body, a this sort of

thinking, this sort of magic trick, in a way, evil magic trick, is meant to make it possible for tommy to affirm the property rights, that the property rights were not violated here. because ash's freedom takes effect, because there are three people, three beings, if you will, in this transaction. so, let me pause. do we have any questions at the moment? yeah, lauren?