The Rule of Law and the Genesis of Freedom: A Survey of Selected Virginia County Court Freedom Suits (1723-1800)

by Gloria Whittico

Abstract

As the August 20, 2019 quadricentennial anniversary of the arrival of the first known Africans at the English settlement at Jamestown approaches, interest in the study of the institution of chattel slavery increases. Early Virginia cases filed in the seventeenth reinforced the legal principle at English common law that the legal status, as slave, free, or somewhere in between, of a child depended upon that of its father. In reaction to the practical effect of this maxim as it was applied in the emerging slave economy of the Virginia colony, the colonial legislature enacted in 1662 a statutory provision in which the legal status of a child followed that of the mother. Such ancient legal principles, along with a number of other statutes, assisted in the establishment and reinforcement of the burgeoning economic institution of chattel slavery, resulting in an environment favorable to its proliferation as the colony grew in wealth and political power.

Based upon primary sources recently made available by the Archives of the Library of Virginia, this paper explores a number of freedom suits brought in the county courts of the colony and state of Virginia from 1723 to 1800, and examines the legal theories upon which the petitioners, through their court-appointed legal counsel, based their claims for liberation. Particular attention is paid to the ways in which lawyers developed and advanced these legal theories both before and subsequent to the passage of the freedom suit statute of 1795, which codified specific legal theories for the pleading of freedom suits. These cases serve to elucidate some of the ways in which the rule of law has been employed throughout the history of this nation to marginalize on the one hand, and to vindicate on the other, the rights and privileges of enslaved persons as they have struggled to emerge from bondage.

 

About the Author

After graduating with honors from the College of William and Mary with a dual degree (A.B. cum laude) in English literature and Philosophy, Ms. Whittico earned a Juris Doctor from the University of Virginia School of Law. She was subsequently admitted to the practice of law in New York and Connecticut. She began the practice of law as an attorney in the Office of the Senior Vice-President and General Counsel at IBM. In 1998, She served on the faculty of Hampton University, where she taught Constitutional Law, Legal Theory, Legal Research and Writing, Ethics, and Introduction to Logic and Scientific Method. In May 2006, Whittico gained faculty approval for the institution of a Pre-Law Track for Hampton University undergraduates. She counseled scores of students each year in her role as pre-law advisor. An ardent lover of teaching, she was a recipient of the Hampton University E.L. Hamm, Sr. Distinguished Teaching Award for the 2004-2005 academic year.

At Regent University School of Law, Professor Whittico has continued her mission as she developed programs designed to increase the number of underrepresented persons in the legal profession. She has served as a consultant to the Council on Legal Education Opportunity (CLEO, Inc.). She teaches a number of courses, including Administrative Law, Insurance Law, and Race and the Law. Her current research focuses on deeds of manumission granting freedom to enslaved persons in the state of Virginia as the preambles of those deeds reveal the religious motivations of the grantors of those deeds.