The critically acclaimed movie “12 Years a Slave” follows the nightmarish story of Solomon Northup, a free-born African-American violinist who, in 1841, was kidnapped by a pair of con men and sold at a slave market. His ordeal finally ended when Northup’s wife enlisted a lawyer friend to help him do something it’s hard to imagine a slave could have done at the time: sue his captors in court.
The case was covered as a novelty in the press, and Northup’s memoir, published in 1853, was an instant bestseller. His story shocked readers and helped galvanize the abolitionist movement.
But Northup wasn’t unique in trying to escape slavery through the legal system. Historians have long been aware of scattered lawsuits brought by slaves against their owners or captors, including in Massachusetts. Now, it is emerging that there were many more such suits than previously thought. Lea VanderVelde, a law professor at the University of Iowa, has spent much of the past decade uncovering about 300 cases unknown to historians. Her book about them, “Redemption Songs,” will be published next year by Oxford University Press.
The cases she found, mostly filed in Missouri, offer a portrait of anguish and of the persistence of individual Americans trying to escape an institution that denied they existed as full people. More broadly, VanderVelde’s project and others like it are part of an effort among historians to paint a much fuller picture of slavery and emancipation by including the voices of the people who were enslaved. While upper-middle-class white abolitionists and a tiny black elite pushed the political case, slaves themselves were also fighting for freedom, using whatever tools were available to them.
“We normally don’t think of slaves as a part of the abolition movement,” says Manisha Sinha, a professor of Afro-American studies at the University of Massachusetts Amherst, whose own book on the subject, “The Slave’s Cause: Abolition and the Origins of American Democracy,” will be published next year by Yale University Press. “But they very much were.”
A century and a half after its official demise, it’s commonplace to talk about slavery as a political issue, the cause of the Civil War, and the concern of congressmen and presidents. But this more intimate look at the past brings us back to the quotidian horror of “our peculiar institution,” and uncovers the immense creativity and persistence with which slaves fought this injustice, using any leverage they could.
In New England, suits by enslaved African-Americans date back to Colonial times. The cases were frequently based on a slave’s claim of white or Native American parentage. But as revolutionary ideals took hold in the 1770s and ’80s, many enslaved plaintiffs began to mount more ambitious arguments that all people, black or white, had a “natural right” to freedom. That was the basis of a successful lawsuit involving a black man named Quock Walker, who won his freedom in 1781.
The man who considered himself Walker’s owner appealed to the Supreme Judicial Court of Massachusetts, and in a 1783 trial the court issued a charge to the jury citing the new state constitution, which held that all men are born free—and setting a precedent that effectively ended slavery in the Commonwealth. In his notes on the case, Chief Justice William Cushing wrote, “Every subject is intitled to Liberty, & to have it guarded by the laws, as well as Life & property.... This being the Case, I think the Idea of Slavery is inconsistent with our own conduct & Constitution.”
The image of a slave taking his captors to court—never mind effectively changing the law—goes against our common perception of the antebellum era. “Every time I tell my students that slavery was abolished through the initiative of slaves in Massachusetts, they’re always stunned,” Sinha says.
It wasn’t only in relatively progressive New England that plaintiffs in freedom suits had a good chance of winning. Even in some Southern states, for those who could argue that their enslavement was against the law—because they had been kidnapped, for example—litigation could be a powerful weapon.
The newest body of freedom suits to come to light are those filed in Western states, especially Missouri. VanderVelde and her colleagues have been unearthing them by combing through boxes and shelves and haphazard stacks of paper, legal detritus that had been moldering unseen in dusty courthouse basements for a century and a half.
“There was absolutely no order to them,” recalls VanderVelde of her courthouse research. “They were still wrapped in this kind of faded shoelace stuff, which is the ‘red tape’ that binds these things. I was always afraid that I was going to find something absolutely amazing, and unless I took my camera to photograph it right away, it would crumble before I could read it.”
Among the cases are many brought by slaves whose owners had transported them through free states like Ohio and Illinois on the way to the frontier. The largest number were filed in St. Louis, which at the time was a hotbed of litigation, thanks in part to a local law that recognized slaves as indigent and thus entitled to free legal help. The cases began in 1805, just after the United States gained control of the area with the Louisiana Purchase.
An early case was that of the Scypion sisters, who sued the most prominent family in St. Louis and won their freedom, on the grounds that their mother was Native American and so could not have been legally enslaved. Lydia Titus, a free woman living in Illinois, watched helplessly as white men kidnapped her five children and two grandchildren in the middle of the night, taking them across the border to the slave state of Missouri. Titus enlisted the law to prove that their capture was illegal, and eventually the family was reunited. An enslaved man named John Merry tried to buy his freedom for $100 and a horse, but his master took the horse and the money and kept John Merry as a slave—until John Merry took him to court.
Slaves risked jail time for bringing suits, because, as disputed property, they could be essentially impounded while the court made its decision. But jail also kept them safe from retaliation, as slave owners who were sued sometimes kidnapped the plaintiffs and sold them farther south. The slaves, meanwhile, got no support or encouragement from abolitionist groups back East. “These folks were on their own,” VanderVelde says.
Despite the odds, more than half of the decisions VanderVelde found were in slaves’ favor. Some plaintiffs even won cash settlements for work they had performed while their cases wended their way through the system.
“It’s surprising that any win,” VanderVelde says. “They have white judges, white [court-appointed] lawyers, white juries—the only thing that’s holding it together is the rule of law.”
That rickety scaffolding collapsed in 1857 with the case of Dred Scott, a St. Louis man who, with his wife and daughters, spent more than a decade litigating for his freedom. Scott is now known for the infamous Supreme Court decision Dred Scott v. Sandford, which declared that people of African ancestry had no right to claim US citizenship and took away Congress’s power to regulate the spread of slavery. The decision, meant by justices to settle questions about slavery’s legal status, outraged Northern abolitionists and helped heighten tensions on the eve of the Civil War. In its ruling on slaves’ citizenship, the court also ended their ability to sue, slamming the door on what had been a means of escape and a source of hope for many.
“Dred Scott has always seemed like a foregone conclusion,” VanderVelde says. “Now, we see that it was actually a reversal of fortune, on a national scale.”
It has taken decades and a great deal of legwork, but slaves themselves are increasingly being given their full due in the long story of their struggle. In 2007, Yale historian David Blight published two previously unknown slave narratives, unusual windows into the lives of people who escaped slavery. Trinity College professor Christopher Hager recently collected a book’s worth of rare documents written by slaves while they were still in bondage. At Harvard, researchers at the Center for American Political Studies are currently sorting through thousands of antislavery and antisegregation petitions sent to the Massachusetts state Legislature in the 18th and 19th centuries, many of them signed by former slaves.
“The portrait that we’re getting now is of a much broader swath of activities by African-Americans,” says Harvard government professor Daniel Carpenter, the center’s director. “Those who have told the story of abolition have tended to focus on what historians would call ‘white agency,’ not least because the people telling those stories were themselves white. Also, history is often driven by what kinds of archives are available. The availability of African-American voices in documents is more limited, and they haven’t been published, they haven’t been digitized.”
That is changing. With funding from the National Endowment for the Humanities and support from the Massachusetts Archives, the Harvard scholars are creating a digital database of the petitions. By the time the work is complete in 2015, it will include as many as 6,000 documents. Meanwhile, VanderVelde is working with the Spatial History Project at Stanford University to create an online archive of freedom suits, which will also be available to the public.
As historians begin to change the way they think about African-American activism during the darkest period in American history, the film “12 Years a Slave” may have been released at just the right moment. The book, although a sensation after it was published, was out of print for a century. Its powerful effect on audiences and critics today may be due in part to the story’s relative obscurity, evidence that even existing testaments to slavery’s horrors have not yet been fully absorbed by our culture.
“I would like to see more movies like this made,” VanderVelde says. “We’re now, I think, at a point in our national life that we can look back more critically at the institution of slavery than we ever could before. Within this overridingly oppressive institution, we can see the variety of life and the strategies for survival.”
Correction: Because of a production error, an earlier caption for a photo with this story misidentified a manuscript illustrating an article about slaves litigating for their freedom. The image is of a jury verdict freeing Lydia Titus from slavery, from the Illinois court archives.