The United States detains thousands of people as suspected terrorists. It claims that the open-ended detention of terror suspects is a national security necessity. The contemporary legal issues of these terror suspects have correlations to America’s past. The treatment of slaves and their attempts to gain freedom through the courts in the antebellum period (1800-1860) offers valuable insight into the current legal issues regarding terrorism. An examination of legal cases from the antebellum period exhibits the brutal treatment of detainees, the creation of legal fictions to circumvent applicable laws, and the overt goal to protect the status-quo.
[I]f the only truth available is the truth enabled by the limits of the same restrictive discourses that subjugate, what, then, are the possibilities for resistance?
~Impossible Witnesses by Dwight McBride1.
Tim Hill, Prison Beda t Tuol Slang, 2005
Certains droits réservés.
The US detains suspected terrorists without charge and allows limited or no legal recourse. In fact, the US employs a convenient legal category—enemy combatant—that does not provide them protection under national or international treaties. The suspects have no access to any official documents or lawyers. And the detainees are not allowed to defend themselves, when and if any charges are brought. The government simply claims that all the suspects are terrorists. Until recently, even the names of the hundreds of prisoners at the US military base at Guantanamo were not known. They exist(ed) in a manufactured world based in legal inventions and government policies. The military lawyer, Ltd. Cmdr. Matthew Diaz, who secreted the 551 names off the Cuban base was court martialed and imprisoned for six months2. Hundreds of detainees remain held without charge.
Although the threat of terrorism is real, the extreme reaction of a government or a people to intense cultural threats is not a new phenomenon. The antebellum period (1800-1860) in St. Louis, Missouri, offers insights into the uses of the law to affect and insure the prevailing political, social and economic order of a time. It was during this period that slaves and free blacks were allowed to sue for their freedom. Free blacks were often kidnapped and removed to the South where they were sold under suspicion of being a runaway slave. While these ‘freedom suits’ offered slaves a chance to escape slavery, it was also a forum in which whites reinforced their legal right to own and abuse black bodies.
The freedom suit and the treatment of terror suspects demonstrate how the law can simultaneously empower the oppressed and reinforce prevailing national ideologies.
A Brief History
Throughout the antebellum period in the United States, laws existed in many slave states that allowed a slave to sue for his or her freedom. One city where the freedom suit was practiced was St. Louis, Missouri, a contentious front for the questions of national expansion and slavery. Nearly three hundred suits were filed between 1812 and 1860. These freedom suits struck at the heart a white society that depended on slavery for economic well-being and social perceptions of superiority. A closer look at the freedom suits and the surrounding culture reveals a world reacting to substantial economic, social and political change. How did these freedom suits reverberate through both black and white society? And why was the law of white America applied to and allowed for those who were considered property, those who were effectively invisible in society?
Agency in Black and White
Historian Ariela Gross claims that race and the freedom suit “provided context and language that defined what it meant to be a slave, but also what it meant to be black or white as well”3. The trial, the courtroom, and the freedom suits combined to function as a cultural performance because they represented a repetitive human behavior of symbolic significance. The freedom suits existed as a microcosm of larger societal issues at work within a slave-owning society of St. Louis and Missouri4.
There is no question that slaves asserted their own agency and self-consciousness throughout these lawsuits, but Gross claims that the fear of slave agency and insurrection in these types of lawsuits shaped the litigation and public perception5. Imagine, for example, how our contemporary fears of terrorism have shaped legal and political responses. However, placing white society as mere reactionaries risks misconstruing historical events. The tendency to celebrate free blacks‘ and slaves’ use of the court system outside of proper historical parameters eroticizes the black body by explicitly positioning the slaves and free blacks as uniquely non-White. Thus, it is necessary to reposition black agency within a realistic historical framework that integrates slave agency within white antebellum society.
White society designed and maintained a highly structured social order where black agency could never fully flourish6. Several scholars state that, above all else, slaves sought self-preservation at minimal cost of degradation and loss of self-respect7. In many ways, the freedom suit represented the height of slave agency in society because the slave used white society’s laws to forge a new avenue of resistance and willingly subjected himself to further degradation of public scrutiny to gain liberty. However, true freedom—the freedom to live without worry of unlawful capture or the ability to work and live unfettered—remained a distant possibility8.
The freedom suit did not, and never would, place the actors on an even legal plain. If the white man won or lost, he won or lost according only to the laws of white society. While no white man expected to lose to a black person in court, the simple exercise of legal rights represented an avenue of white cultural performance that blacks did not truly enjoy until the twentieth century, and even then the results were far from equal and the results tenuous.
The Known Body
What was often an emotional and financial ordeal; the freedom suit functioned as a methodical, ritualized process that controlled slave agency and enabled a performance of whiteness. The slave assumed all the risks of the freedom suit: physical and emotional violence, separation from family, and the very real possibility of death. The lawyers and judges often only faced negative public reaction that could often be placated9.
The first act of the freedom suit was the petition process wherein the slave made his/her case to sue the white owner. The petition process forced the slave to pay homage to the laws of the white society. The slave could do little while the court called witnesses and decided his or her fate. As soon as the slave actively initiated the case, they became overtly dependant on the rulings of the court, which based its decision in the rights of white property ownership.
In all freedom suits, the slave did not exist as slave in court because slaves were not United States’ citizens. They were animated property. And since slaves were not ‘people’ in the legal sense, they could not file suit against whites. When the court allowed the slave to continue a freedom suit, the black body was transformed from non-citizen property to legal actor with access to the law of the land. The slave always had to endure this transformation from property to person. Without this legal fiction, the freedom suit would not have existed, as it was rare to find white lawyers willing to sue white owners.
Since the slave filed the complaint, the burden of proof resided with the enslaved. Several facts complicated this burden: 1) a slave could not testify against a white man, 2) if there was a written record of a sale or manumission deed the slave would not have direct access to those materials, 3) even if he/she did have the deed, many slaves were illiterate, and, 4) a slave’s words could not be the basis of liability or culpability of a white person10. These restrictive aspects effectively transferred the burden of proof to the white defendant who only had to prove that the black plaintiff was property. This closely resembles the manner in which the U.S. government today massages laws and withholds evidence that allows the government, whether they are named as plaintiff or not, to prove only that a person is a terrorist and a threat to national security.
The restrictive legal environment of the freedom suit transformed it from a forum to determine the validity of freedom to a forum that emphasized the need of whites to define the legal and political status of slaves in a slave owning society11. In a fully functioning slave society, where newspapers advertised slave auctions and the social life revolved around the culture of slave labor, the court, the state, and the people comprehended the experience of the slave because they created, depended on, and promoted the existence of the slave in society. Today, the west effects the same knowing on the terrorist, who is known before he/she speaks.
The deliberate elevation of the slave to legal actor enabled the court to gaze at a new body in front of them. In freedom suits, the court did not hear from a desperate slave, but from an anonymous, poor black person who had been falsely imprisoned and brutalized.
Legal Property
Slaves used the very system of reciprocity that enslaved and discriminated them, and any freedom gained served only to remove them from one oppressive environment and place them in another. Historian Keila Grinberg relates that the freedom suits essentially concerned only the transfer of property, not freedom12. The white defendant in the freedom suit desired to reclaim their property in the slave, and the black plaintiff’s only recourse was to legalize a commercial transaction or enforce an active legal precedent related to property13.
The case McFoy v. Brown offers an excellent example of the freedom suit as property dispute14. In McFoy, William Brown intended to reclaim property bequeathed in his late father’s will. It was believed that David McFoy represented that property, a runaway slave. The will, offered as evidence in the trial, represented a legal transfer of property. Never mind how Brown managed to locate McFoy across hundreds of miles of frontier, he wanted McFoy mainly for economic reasons—a healthy male slave was worth hundreds of dollars. So desired was this one slave that Brown traveled across the country, employed a lawyer and demanded depositions in three states. McFoy had few options. He attempted to thwart Brown by simple refutation, and asserted that he did not represent the property claimed by Brown. Aside from attempting to escape the county jail, there was little else McFoy could do to prove his freedom.
Each freedom suit tested white society’s perception of property. This fact explains why, when defendants answered the plaintiff’s complaint denying any wrongdoing, the defendant would sometimes admit his actions. The case Sarah v. Michael Hatton exhibits this abuse well. In the answer to the complaint, Hatton claimed that since the defendant was a slave, and thus property, he was lawfully obligated to beat and assault her 18. Contemporary governments use the same line of argument when illegal tactics are used against terror suspects. ‘Of course we tortured, beat, or detained the person; they are or know of terrorists who threaten our way of life.’
The removal of the slave from the confines of the private farm or plantation to the public space of the courtroom created substantial pressure on white society to defend the ideological and economic underpinnings of slavery16. Historian James Campbell notes why ultimately the whole body of law must elude the slave: “…because law carried to the zenith of its logic would have undermined slavery as often as it protected slave property.17” Terror suspects are kept similarly detained and muted throughout the legal process, if it exists. Thus, the freedom suits evolved to operate as a public forum within which white society repeatedly reaffirmed the negation of slave humanity and reinforced white capitalism derived from black bodies.
The capitalism of antebellum America resided in the attainment of property and possessions, and this attainment represented power. Since antebellum slave society termed slaves as “animated, living property,” the entrenched belief in the right to own slaves only furthered white fantasies about mastery and race, even among non-slaveholding whites18. Freedom suits essentially functioned as an exhibition of the cultural meaning of racial identities and identified white antebellum society as dominant and as masters19. White society could not easily allow a practice that enabled their animated property to sue for permanent removal from this profitable economic system. The free slave threatened white America economically, socially, and culturally, just as the terror suspect is perceived to menace our civilization and refined sense of freedom.
Conclusion
Today, the terrorist suspect is silenced for similar reasons. While a direct correlation between slavery and terrorism cannot be and is not made in this article, similarities do exist. Quite simply, the idea of marauding armed blacks struck terror throughout white America. The repressive measures taken during the antebellum period to thwart rebellions were numerous and bloody. Contemporary fears of the terrorist projected from the U.S. government mirror those of the antebellum period: Fear over acceptance; Silence before action.
If a white slave owner, who depends on a slave for food and well-being, allowed a slave to sue him in a public court, what then are we so afraid of today? Why do we seek to push our fears into the darkness of military tribunals and endless detentions in foreign jails? Do we, like the slave owner, fear not the loss of the actual body, but what that loss represents?
References
1. McBride, Dwight A. Impossible Witnesses: Truth, Abolitionism, and Slave Testimony. New York: New York University Press, 2001: 177, n. 3.
2. Gross, Ariela J. “Litigating Whiteness: Trials of Racial Determination in the 19th Century South.” Yale Law Journal 108(1998): 179-80.
3. Although a constructed performance, the freedom suits were, “performative in the sense that the essence or identity they otherwise purport to express are fabrications manufactured and sustained through corporeal signs and other discursive means.” See: Sara Salih, (ed., with Judith Butler), The Judith Butler Reader (Malden, MA: Blackwell Publishing, 2004), 110; I use some theories from Butler, especially that of performitivity; it is not my intent to wholly transplant her theories of gender unto that of race.
4. Salih, Sara. The Judith Butler Reader. Malden: Blackwell Publishing, 2004: 110.
5. Gross, 179-80.
6. Davis, David Brion. Inhuman Bondage: The Rise and Fall of Slavery in the New World. Oxford: Oxford University Press, 2006:195.
7. Moore, Robert Jr. “A Ray of Hope Extinguished: St. Louis Slave Suits for Freedom. » Gateway Heritage 14 (1993-94): 5-9.
8. Marie v. Auguste Chouteau, 1821. Circuit Court Case Files, Office of the Circuit Clerk. City of St. Louis, Missouri.5 April 2006. <http://stlcourtrecords.wustl.edu>.
9. Boman, Dennis. “The Dred Scott Case Reconsidered: The Legal and Political Contexts in Missouri.” The American Journal of Legal History.44.4 (2000): 405-428, 407.
10. Gross, Ariela. “Pandora’s Box.” Slavery and the Law. Ed. Paul Finkelman. Madison: Madison House, 1997: 316.
11. Grinberg, Keila. “Freedom Suits and Civil Law in Brazil and the United States.” Slavery and Abolition. 22.3 (2001): 66-82.
12. Grinberg, 75-77.
13. The property dispute relates directly to the so-called Chattel Principle, first coined by ex-slave James W.C. Pennington, which states, “The being of slavery, its soul and it body lives and moves in the chattel principle, the property principle, the bill of slave principle…” See Davis, Inhuman Bondage, 193.
14. McFoy v. Brown, 1850. Circuit Court Case Files, Office of the Circuit Clerk, City of St. Louis, Missouri. 4 March 2006: <http://stlcourtrecords.wustl.edu>.
15. Sarah, a free girl v. Hatton, Michael, 1821. Circuit Court Case Files, Office of the Circuit Clerk. City of St. Louis, Missouri. 4 March 2006: <http://stlcourtrecords.wustl.edu>.
16. Tushnet, Mark V. The American Law of Slavery 1810-1860: Considerations of Humanity and Interest. Princeton: Princeton University Press, 1981: 231-3.
17. Campbell, James. “‘The victim of prejudice and hasty consideration:’ The Slave Trial System in Richmond, Virginia, 1830-1861.” Slavery and Abolition. 26.1 (2005): 71-91.
18. Johnson, Walter. Soul by Soul: Life Inside the Antebellum Slave Market. Cambridge: Harvard University Press, 1999: 17; 153-55.
19. Gross, 3, 12.