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“Freedom By A Judgment”: The Legal History of an Afro-Indian Family

  • Honor Sachs

Extract

On May 2, 1771, John Hardaway of Dinwiddie County, Virginia posted a notice in the Virginia Gazette about a runaway slave. The notice was ordinary, blending in with the many advertisements for escaped slaves, servants, wives, and horses that filled the classified section of the Gazette in the eighteenth century. Like countless other advertisements posted in newspapers wherever slaves were held, Hardaway's advertisement read: “Run away from the subscriber, a dark mulatto man slave named Bob Colemand, 25 years old, tall, slim, and well made, wears his own hair pretty long, his foretop combed very high, a blacksmith by trade, claimed his freedom under pretense of being of an Indian extraction.”

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1. May 2, 1771, Virginia Gazette, Rind, no. 206, p. 3. Emphasis in original.

2. For analysis of different kinds of freedom suits see, Nicholls, Michael L., “‘The Squint of Freedom’: African-American Freedom Suits in Post-Revolutionary Virginia,” Slavery and Abolition 20 (1999): 4762; and MacLeod, Duncan, Slavery, Race and the American Revolution (London: Cambridge University Press, 1974) 109–10. For work on freedom suits broadly, see Edwards, Laura, “Status Without Rights: African Americans and the Tangled History of Law and Governance in the Nineteenth-Century U.S. South,” The American Historical Review 112 (2007): 365–93; Gross, Ariela, What Blood Won't Tell: A History of Race on Trial (Cambridge: Harvard University Press, 2010). On Virginia, in particular, see Egerton, Douglas, Gabriel's Rebellion: The Virginia Slave Conspiracies of 1800 and 1802 (Chapel Hill: University of North Carolina Press, 1993); and Sidbury, James, Ploughshares into Swords: Race, Rebellion and Identity in Gabriel's Virginia, 1730–1810 (New York: Cambridge University Press, 1997). See also, Morris, Thomas D., Southern Slavery and the Law, 1619–1860 (Chapel Hill: University of North Carolina Press, 1999).

3. Nicholls, “The Squint of Freedom,”; MacLeod, Slavery, Race and the American Revolution; Wallenstein, Peter, “Indian Foremothers: Race, Sex, Slavery, and Freedom in Early Virginia,” in The Devil's Lane: Sex and Race in the Early South, ed. Clinton, Catherine and Gillespie, Michele (New York: Oxford University Press, 1997) 5773; and Wolf, Eva Sheppard, Race and Liberty in the New Nation: Emancipation in Virginia from the Revolution to Nat Turner's Rebellion (Baton Rouge: Louisiana State University Press, 2006).

4. Information about the sale of Judy Coleman's children to John Hardaway appears in a Burnswick County, Virginia case, David et al. v. Hardaway, recorded by Browder, Barbara, “Brunswick County Judgments,” The Southside Virginian 8 (1990): 135–43.

5. Robin v. Hardaway is the first such case on record, at least. In the case report, the attorney for the plaintiffs, Thomson Mason, made reference to earlier such suits. He referred to “hundreds of the descendents of Indians” who he claimed had “obtained their freedom, on actions brought into this court.” Robin v. Hardaway (1772), in Jefferson, Thomas, Reports of Cases Determined in the General Court of Virginia (Charlottesville, F. Carr and Co.,1829), 116.

6. The bulk of Coleman claims occurred in Dinwiddie County, where pre-war court records do not exist.

7. Miles, Tiya, Ties That Bind: The Story of An Afro-Cherokee Family in Slavery and Freedom (Berkeley: University of California Press, 2005); and Saunt, Claudio, Black, White and Indian: Race and the Unmaking of an American Family (New York: Oxford University Press, 2006). See also, Naylor, Celia, African Cherokees in Indian Territory: From Chattel to Citizens (Chapel Hill: University of North Carolina Press, 2008); Perdue, Theda, Slavery and the Evolution of Cherokee Society (Knoxville: University of Tennessee Press, 1979); and Yarbrough, Fay, Race and the Cherokee Nation: Sovereignty in the Nineteenth Century (Philadelphia: University of Pennsylvania Press, 2007).

8. Brooks, James, Confounding the Color Line: The Indian-Black Experience in North America (Lincoln: University of Nebraska Press, 2002), 7.

9. Thompson, E.P., “The Crime of Anonymity,” in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, Thompson, E.P, Hay, Douglas, Linebaugh, Peter, Rule, John, Winslow, Cal (New York: Pantheon, 1975), 255344.

10. Coleman, James P., The Robert Coleman Family from Virginia to Texas, 1652–1965 (Ackerman, MS, 1965) 39.

11. Ibid., 47.

12. Ibid., 48.

13. Scholarship on slave naming patterns raises a number of competing arguments about the origins and intentions of surnames. One point that stands out within this scholarship is the fact that slave naming patterns varied dramatically by region, therefore creating a number of local naming vernaculars that were unique to particular slaveholding areas. In Virginia, Annette Gordon-Reed discusses the special significance of preserving a unique family surname for maintaining slave family coherence in The Hemingses of Monticello: An American Family (New York: W.W. Norton, 2008), 7980. In contrast, Trevor Burnard finds that slaveholders’ indifference to slave family ties in eighteenth-century Jamaica produced naming patterns that revealed a “lack of genealogical awareness.” See Burnard, Trevor G., “Slave Naming Patterns: Onomastics and the Taxonomy of Race in Eighteenth-Century Jamaica,” Journal of Interdisciplinary History 31 (2001): 332. John Thornton argues that distinct naming patterns consistent with Central African traditions persisted throughout North American and the British Caribbean. Particularly notable for the Coleman family is his claim that Angolan naming traditions of bestowing double names to indicate descent from elite status persisted in the American colonies, particularly in South Carolina where the concentration of Angolan imports was as high as 60 percent. In Angolan tradition, commoners might use double names with two first names that indicated lower status, whereas elites maintained double names with a second name indicating descent from a distinct family line. Thornton, John, “Central African Names and African-American Naming Patterns,” The William and Mary Quarterly 50 (1993): 727–42. See also Wood, Peter, Black Majority: Negroes in Colonia South Carolina From 1670 Through The Stono Rebellion (New York: W.W. Norton, 1974), 181186.

14. Information about Judy Coleman's purchase appears in a Brunswick County case in 1819, Caty v. Wyche et al. The documents refer to the case as Caty c. Wyche, but the case is stored at the Library of Virginia under Caty v. Atkins. See, Caty, a Pauper vs. Atkins et al, Brunswick County Superior Court Law Judgments, Box 1 (1809–1815) Folder 4. I appreciate the help of Carolyn Goudie for pointing me in the direction of this case.

15. Deposition of Williamson Coleman, Caty v. Wyche.

16. Deposition of Francis Coleman, Lucy v. Nunnally, Case files 216, 251, 332, 338, and 368, Fayette County Case Files, Kentucky Department for Libraries and Archives, Frankfort, Kentucky. These cases have been misfiled. The case itself has been broken up into separate files purely by accident or oversight, but they are all part of the same trial.

17. Gallay, Alan, The Indian Slave Trade: The Rise of the English Empire in the American South, 1670–1717 (New Haven: Yale University Press, 2002), 145.

18. Weber, David, The Spanish Frontier in North America (New Haven: Yale University Press, 1992), 142–43; and Gallay, , The Indian Slave Trade, 146–47.

19. Gallay, The Indian Slave Trade, 145. See also Worth, John E., “Razing Florida: The Indian Slave Trade and the Devastation of Spanish Florida, 1659–1715,” in Mapping the Mississippian Shatter Zone: The Colonial Indian Slave Trade and Regional Instability in the American South, ed. Etheridge, Robbie and Shuck-Hall, Shrei (Lincoln: University of Nebraska Press, 2009), 295311.

20. The statute that first legalized slavery in Virginia passed in 1682, “An act to repeale a former law makeing Indians and others free.” Hening, William Waller, ed., The Statutes at Large, Being A Collection of all the Laws of Virginia, from the First Session of the Legislature in 1619 (13 vols., 1809–1823; reprint Charlottesville, University Press of Virginia, 1969), 2: 490–92.

21. Hening, Statutes at Large, 2: 170.

22. Morgan, Edmund, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W.W. Norton, 1975), 335.

23. See Morris, Southern Slavery and the Law, 19–29.

24. A deposition in a Brunswick County, Virginia case, David v. Hardaway (1794) explains that Susanna Hardaway was the former wife of John Coleman, deceased. See Browder, “Brunswick County Judgments,” 140–41.

25. Ibid., 140.

26. Ibid., 142.

27. Robin v. Hardaway, 109.

28. There appears to be some discrepancy in the secondary literature as to which Mason tried this case. Scholars have attributed George Mason to the case since the nineteenth century. For a selection of the many sources claiming George Mason see, Foster, Roger, Commentaries on the Constitution of the United States (Boston: The Boston Book Company, 1895), 38; Potter, William, “Judicial Power in the United States,” Michigan Law Review 27 (1928): 3; Carl Teausch, “The Religious View of the Doctrine of Natural Rights,” Journal of the History of Ideas 14 (1953): 62; Treanor, William Michael, “Judicial Review Before Marbury,” Stanford Law Review 58 (2005): 469. Certainly, the nature of the argument in Robin v. Hardaway suggest George Mason's influence. However, it is far more likely that the younger Mason brother, Thomson, argued this case. As Jeff Broadwater points out in his biography of George Mason, the elder brother was, largely, self-educated in the law. The younger Mason brother, Thomson, however, was formally trained in the law, admitted to the bar and became “one of the colony's leading barristers.” Broadwater, Jeff, George Mason: Forgotten Founder (Chapel Hill: University of North Carolina Press, 2006): 4. Edward Dumbauld's work on Thomas Jefferson describes Thomson Mason's role in the Robin case in great detail. Dumbauld certainly attributes the fraternal connection between the two Mason brothers, arguing that Thomson's arguments in Robin “befitted a kinsman of the author of the Virginia Bill of Rights.” Dumbauld, Edward, Thomas Jefferson and the Law (Norman: University of Oklahoma Press, 1978): 8487. I am grateful to Greg Ablavsky for bringing Thomson Mason to my attention and to R.B. Bernstein for helping me track him down in the scholarship.

29. Thomas Jefferson apparently supplied document copies of some of the early Virginia statutes. His participation is discussion in “Jefferson's Law Reports,” The Virginia Literary Museum and Journal of Belles Lettres, Arts, Sciences, & c… Aug. 12, 1829; 129–33.

30. Hening, , Statutes at Large, 2: 283.

31. Ibid., 490–92.

32. Morgan, American Slavery, American Freedom, 330.

33. Ibid. According to Morgan, the number of Indian slaves registered in the public records increased for a number of Virginia counties after the passage of the 1682 law.

34. Hening, , Statutes at Large, 3: 69.

35. Robin v. Hardaway, 116–17.

36. Ibid., 117.

37. Hening, , Statutes at Large, 3: 447–62.

38. Ibid., 447–48.

39. Robin v. Hardaway, 117.

40. Grey, Thomas C., “Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought,” Stanford Law Review 30 (1978): 881–82.

41. Breen, T.H, “Subjecthood and Citizenship: The Context of James Otis’ Radical Critique of John Locke,” The New England Quarterly 71 (1998): 379.

42. Robin v. Hardaway, 114.

43. Ibid.

44. Rutland, Robert, ed., The Papers of George Mason, 1725–1792 (Chapel Hill: University of North Carolina Press, 1970) 1: 274–91.

45. For discussion of the editorial changes to the Virginia Declaration of Rights, see Wolf, , Race and Liberty in the New Nation, 17.

46. For discussion of transatlantic impact of Somerset case, see Gould, Elija, “Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, Circa 1772The William and Mary Quarterly 60 (2003) 471510; Cleve, George van, “'Somerset's Case’ and Its Antecedents in Imperial Perspective,” Law and History Review 24 (2006) 601–45; Weicek, William, The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca, Cornell University Press, 1977).

47. Judgment in the case of Robin v. Hardaway, May 2, 1772. Manuscript, RG 104, Virginia General Court (Colonial). State Government Records Collection, Acc. 33700, The Library of Virginia.

48. For discussion of the suits originating through non-importation rules and challenged to manumissions, specifically, See Nicholls, “‘The Squint of Freedom,’” 47.

49. Wolf, , Race and Liberty in the New Nation, 101–9.

50. The Virginia Report of Cases does not identify the named of the original defendant. The defendant names himself in the Deposition of Williamson Coleman, Caty v. Wyche.

51. I am grateful to Paul Heinegg for pointing out this reference. Order Book No. 3, 1787–1789, Henrico County, Library of Virginia, microfilm reel 70, p. 131. Dick was most likely the grandson, not the son, of the original Judith. It is possible that the “Judy” mentioned as Dick's mother be the same “Judy” who was a plaintiff in the Robin v. Hardaway.

52. Coleman v. Dick and Pat (1793), in Washington, Bushrod, Reports of Cases Argued and Determined in the Court of Appeals of Virginia, Vol. 1 (Richmond, Thomas Nicholson, 1798), 234.

53. Such cases are documented in Catterall, Helen Tunnicliff, Judicial Cases Concerning American Slavery and the Negro (New York, 1968.) See, Hannah and other Indians v. Davis (1787), 94; and Jenkins v. Tom (1792), 99100.

54. Even though the court in 1772 had decided that Virginia had outlawed Indian slavery in 1705 in Robin v. Hardaway, the precise date remained contested in a number of later cases as illustrated in Catterall, Judicial Cases. Specifically, Jenkins v. Tom (1792), 99100; Coleman v. Dick and Pat (1793); 101–2, and Hudgins v. Wrights (1806), 112–13. The reasons why lawyers continued to debate these issues is not entirely clear. One possible explanation is that Robin was not actually published until 1829; therefore, lawyers may have not known that they were covering old arguments. Laura Edwards analyzes the impact of the broad movement during the 1820s and 1830s to collect, codify, and publish legal records from the early national period. The resulting volumes of litigation collected during the period, she argues, suggest a level of order and clarity to the legal system that did not reflect the reality of actual experience. The movement toward organized legal publishing during the antebellum decades provided lawyers with far easier access to case records that had previously been scattered around various jurisdictions or held in private collections. Such perspective is useful when trying to understand how and why lawyers continued to revisit established debates, as they did in Coleman v. Dick and Pat. See Edwards, Laura, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill, University of North Carolina Press, 2009), 2654.

55. Ibid., 239. Emphasis in original.

56. Ibid. Emphasis in original.

57. Ibid., 235. Emphasis in original.

58. Ibid., 237.

59. Ibid.

60. Ibid., 239.

61. Ibid., 238. Emphasis in original.

62. Ibid.

63. Ibid.

64. Ibid. Emphasis in original.

65. This conceptualization echoes Ira Berlin's classic article, Time, Space and the Evolution of Afro-American Society on British Mainland North America,” The American Historical Review 85 (1980): 4479. This article calls for closer analysis of the regional and temporal evolution of multiple slaveries in North American history and provides a deeper understanding of the slave experience that distinguished the geographies and economic demands of colonial and antebellum slavery and distinct and diverse areas of study. For the Coleman family, time and place figured centrally in the shape and outcome of their litigation. Each generation that sued faced different legal regimes, especially as jurisdictional boundaries shifted and changed after the Revolution. Therefore, each round of litigants pursued freedom within a unique set of legal parameters that defined them as individuals and as a family in new ways. For discussion of the shifting nature of legal space and peoples’ access to it, see Edwards, The People and Their Peace, 64–99. See also, Berlin, Ira, Generations of Captivity: A History of African-American Slaves (Cambridge: Harvard University Press, 2003).

66. Browder, “Brunswick County Judgments,” 137.

67. Register of Free Negroes 1794–1819, City of Petersburg, Library of Virginia, microfilm reel 47, entry no. 11.

68. Ibid., entry nos. 32, 33, and 37.

69. The most notable plan for emancipation was Tucker, St. George, A Dissertation on Slavery; With A Proposal for the Gradual Abolition of It, in the State of Virginia (Charleston, SC: reprint, General Books, 2010). Thomas Jefferson also included a plan for gradual emancipation in Notes on the State of Virginia, which was a scaled-back version of an earlier proposal. See Jefferson, Thomas, Notes on the State of Virginia (Chapel Hill: University of North Carolina Press, reprint, 1982), 137–38. Discussion of these two plans is found in Wolf, Race and Liberty in the New Nation, 101–9. For analysis of Jefferson's revolutionary-era hesitation on slavery, see Waldstreicher, David, Slavery's Constitution: From Revolution to Ratification (New York: Hill and Wang, 2009), 4648.

70. On the restriction of manumission in late-eighteenth-century Virginia, see Wolf, Race and Liberty in the New Nation, 121–27.

71. The presence of a child named Hannah among them might also suggest a much broader sense of family legacy. Could she have been named to honor the Hannah who first sued for freedom in Robin v. Hardaway? Annette Gordon–Reed points to the recurrence of particular names as evidence of family connections in Virginia slave family genealogies. See Gordon–Reed, The Hemingses of Monticello, 51–52. John Thornton also notes the persistence of Angolan naming patterns in South Carolina that traditionally bestowed children with the namesakes of grandparents, thus suggesting that a child named Hannah may have intentionally honored a long-standing practice of preserving family names over generations. Thornton, “African-American Naming Patterns,” 741.

72. Lucy v. Nunnally, Case files 216, 251, 332, 338, and 368, Fayette County Case Files, Kentucky Department for Libraries and Archives, Frankfort, Kentucky. These cases have been misfiled. The case itself has been broken up into separate files purely by accident or oversight, but they are all part of the same trial.

73. On Henry Clay's early commitment to antislavery, see Coward, Joan Wells, Kentucky in the New Republic: The Process of Constitution Making (Lexington: University Press of Kentucky, 1979), 107–8.

74. Lucy v. Nunnally. Deposition of Francis Coleman.

75. Ibid.

76. Physical appearance was also a consideration the earlier Virginia case of Jenkins v. Tom (1792). They described ancestors who had “a tawny complexion, with long straight black hair.” See Catterall, Judicial Cases, 99.

77. Hudgins v. Wrights (1806), Hening, William Waller and Munford, William, Reports of cases argued and determined in the Supreme Court of Appeals of Virginia with select cases relating chiefly to points of practice, decided by the Superior Court of Chancery for the Richmond district, Vol. 1 (Philadelphia, 1808–1811), 140.

78. A copy of this case was, apparently, carried to Kentucky, where it can be found as Phillis v. Tucker, Case file 338, Fayette County Case Files, Kentucky Department of Libraries and Archives. The case is also mentioned by George Keith Taylor in his statement in Caty v. Wyche.

79. The related cases mentioned were listed by George Keith Taylor in a statement in the later litigation of Caty v. Wyche.

80. Caty v. Wyche.

81. Testimony of Freeman Vaughan, Caty v. Wyche.

82. Ibid.

83. Petition of Caty, Caty v. Wyche.

84. Pegram v. Isabell (1807) Hening and Munford 1: 387–88.

85. Pegram, Henry, “The Origins of the Pegram Family in the United States and the History of the Same During the Eighteenth Century,” The William and Mary Quarterly 2, Ser. 2 (1922): 70.

86. Pegram v. Isabell (1808) Hening and Munford 2: 200.

87. Ibid., 194.

88. Pegram v. Isabell (1807) 1: 399.

89. Ibid., 178.

90. Ibid.

91. MacLeod, Slavery Race and the American Revolution, 113.

92. Pegram v. Isabell (1808) 2: 401.

93. Ibid., 401.

94. Ibid., 400.

95. Williamson Coleman to David Robertson, April 10, 1818, Caty v. Wyche.

96. Brunswick County, Register of Free Negroes, vol. 1, 1803–1820, Microfilm Reel 126.

97. Brunswick County, Register of Free Negroes, 1820–1850, Microfilm Reel 134.

98. Ibid.

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