In a prior post, I related the facts of the freedom petition of Beverly Dowling. Briefly stated, Dowling had struck an oral agreement with his mistress, Sophia Bland, to purchase his freedom for $200, paid within six months of the date of the agreement. It took Dowling nearly two years to collect all of the money. During that time, Bland appointed an agent to do what he think proper with Dowling, and the agent reported him as a runaway and inquired as to what price he could get for Dowling. Dowling subsequently traveled to New York on a steamboat as a waiter, and returned with the last of the $200 purchase price, but was arrested and then sold to Austin Woolfolk. Dowling petitioned the Baltimore City Court. (For a more complete set of facts, see the original post.
The judges of the Baltimore City Court instructed the jury that if they found that Sophia Bland had indeed made an agreement that it could be taken as evidence that she had given her implied consent to Beverly Dowling to travel across state lines. If she gave this consent, and if he had then traveled to New York and become free by New York’s laws, then Sophia Bland could not reclaim Dowling as a slave without violating Maryland’s law forbidding the importation of slaves into the state. The jury found for Dowling.
On appeal, Bland’s attorneys argued that 1) slaves were not competent to make contracts, and especially not with their owners; 2) the court should not allow the oral agreement to be proof of the owner’s consent for Dowling to leave the state. Several reasons were summarized in the record for this second argument, namely that the presumption of law should be against consent when the act resulted in a forfeiture of property and that the law did not presume that slaves who went about the state at their liberty had authority from their masters. In short, Bland’s attorneys said that the court erred in leaving the matter to the jury at all.
Justice Stephenson Archer of the Maryland Court of Appeals delivered the opinion of the court upholding the Baltimore City Court’s instructions. He agreed with Bland’s attorneys on their first point, holding that slaves could not make contracts (he also spent a good deal of time knocking down Dowling’s attorneys arguments to the contrary). But he disagreed as to the second point, holding that it was proper for the judges to leave the jury to discover whether the agreement was ample evidence of the transfer of discretion from the owner to the slave, which therefore meant Bland’s consent could be implied.
This second holding could have gone either way. In fact, Bland’s arguments appear to be more in line with Maryland law than not. It was well established that manumissions must be in a formal legal document (deed or will) and strictly meeting all the forms of law (two witnesses, properly recorded, etc.). Slaves also needed written authorization to carry out certain acts on their own, including travel within the state and to sell certain items. Would it not have made more sense for court to have held that permission to leave the state must be written?
Perhaps more to the point, what juridical justification could there be for the very idea of a general transfer of discretion? Since there was no real analogue in slave law for such a principle (at least, not one in which I am aware), it had to be borrowed from elsewhere—most likely from the law governing principal and agent. As the principal, Bland was bound by what her agent did, and her agent (Dowling) was empowered to act as he saw best fit in order to carry out her wishes (that is, to raise the money). But to make this argument is to treat the slave as analogous to a person and governed by the laws governing persons.
Historians are somewhat divided on the subject of whether slaves actually had rights at law. Andrew Fede has been a leading voice denying that the American law of slavery extended any rights, formal or informal, in theory or practice, to slaves. Martha Jones, Anne Twitty, and others have argued that slaves did have rights that the white man was bound to respect, and that courts had to take these rights seriously. Bland v. Dowling might speak to this disagreement. On the one hand, the court had made an unenforceable contract enforceable. That was certainly the result of the case, as Dowling went free and disappeared from Baltimore and the grasp of Sophia Bland. But on the other, the Maryland Court of Appeals had made the entire case hinge on the mistress’s agency and the accident of having taken a steamboat to New York City.
It is tempting to conclude, as several famous historians have, that American slave law was by nature unstable. That it could not handle the contradictions of treating people simultaneously as people and property. For these historians, Bland v. Dowling might be just more grist for the mill. I’m not so sure. I think it more likely that the judges of the Maryland Court of Appeals just wanted to hold Sophia Bland to her word. And through the law, they found a way.
(I would like to thank Andrew Fede for some critical comments he gave me after my initial post, including some very helpful factual information that my research had not yet turned up.)
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