O Say Can You See

Summary

Mina (or Mima) Queen filed a petition for freedom on January 8, 1810 on behalf of herself and her minor child, Louisa. She claimed that her great grandmother, Mary Queen, was a free woman of color. All parties agreed that Mina and Louisa were descendants of Mary Queen. The defendant John Hepburn claimed that Mary Queen was held as a slave throughout her life. Little is known about the defendant John Hepburn, although he appears to have been sued in Charles County, Maryland, in 1800 by his creditors. The Hepburns were a prominent family in Prince George's County, and it remains unclear how they came to hold Mina Queen or when John Hepburn came to Washington, D.C. Queen's attorney, Francis Scott Key, called Simon Queen, a free black, as a witness. The D.C. Circuit Court allowed the testimony of Simon Queen even though he testified against a "free Christian white man," holding that "a freeborn negro is a competent witness in a case of freedom." Key also called three other witnesses, two white women, and Gabriel Duvall, the former Chief Judge of the General Court of Maryland, a former Congressman, and the attorney for the Queens in 1790s freedom petitions in Maryland. The D.C. Court disallowed as evidence some critical testimony about Mary Queen's origins and status in depositions taken in the 1790s in Maryland cases brought by Queen relatives. The court ruled parts of these depositions to be "hearsay" and inadmissible. In June 1810 at trial, the jury found for the defendant slaveholder, John Hepburn. Queen appealed the decision to the U.S. Supreme Court on a writ of error, arguing that the hearsay testimony should have been allowed in a petition for freedom case. Francis Scott Key's writ of error stated, "After a lapse of 100 years better evidence than this cannot be expected. The general reputation of the fact that the ancestor was free is sufficient to rebut the presumption arising from color, and throws the burden of proof on the other side." The Supreme Court heard the case in February 1813. The majority opinion written by Chief Justice John Marshall denied the appeal and upheld the lower court, arguing that "hearsay evidence is incompetent to establish any specific fact, which fact is in its nature susceptible of being proved by witnesses who speak from their own knowledge." Gabriel Duvall, newly appointed to the Supreme Court as an Associate Justice, rendered a dissenting opinion. Mina Queen's petition for freedom was unsuccessful. The fate of Mina and Louisa Queen after 1813, however, remains unknown.