Joe Thompson, Nelly Thompson, & Sarah Anne Thompson v. Walter Clarke

United States. Circuit Court (District of Columbia) - Washington (D.C.)

Claim for Freedom Made

Term Slavery


Verdict for Petitioner December 1817

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Attorney for Plaintiff(s):

Attorney for Defendant(s):



On May 31, 1815, Joe Thompson filed a petition for freedom on behalf of his wife, Nelly, and his daughter, Sarah Ann. They were "persons of color" who were "entitled to their freedom" but were being "held and unjustly detained" by Walter Clarke. Francis Scott Key represented the Thompsons.

Joe Thompson's petition relied upon the October 27, 1804 last will and testament of John Thompson, which required that if his wife Elizabeth had no child within nine months, then—among other provisions—six slaves, including "Joe the Blacksmith and Nell his wife," were to be manumitted after ten years of service. Elizabeth Thompson, however, renounced the will and held that she was entitled to one-third of the total assets in the estate—including those enslaved who were potentially freed by the will. Whether Joe knew that Elizabeth had renounced the will remains uncertain, but Joe must have known the terms of John Thompson's will and that his ten years of service would be completed in 1815. He filed his petition for freedom at the earliest possible moment a decade after John Thompson's death in late 1804.

It is also not clear where Joe and Nelly were living after John Thompson's death, whether independently or in the household of Elizabeth Thompson. But three years later in 1808, Elizabeth Thompson died without a will. Her estate valuation indicated that Joe was 23 years old, Nell was 25 years old, and that Nell had a daughter, Mary, age two. Mary's fate was not recorded, and she was not listed in their 1815 petition for freedom. She could have died or been sold. Joe and Nell's other child, Sarah Ann, was therefore born after Elizabeth's estate valuation, between 1808 and 1815. According to John T. Mason, Elizabeth Thompson's legal counsel who advised her to renounce the will, the children of Joe and Nelly could not claim freedom under Maryland law: "All the children born of these during the period of their slavery and before the time limitted by the Will for them to be free will be born slaves and must remain so." In this case, however, the Court refused to instruct the jury "that the petitioner was not entitled to freedom under the will," and the jury returned a verdict for the petitioner without excluding Sarah Ann.

The defendant slaveholder in this case, Walter Clarke, was married to Ann Thompson, the sister of Elizabeth. He served as the administrator of Elizabeth's estate, and he held Joe, Nell, and Sarah Ann as slaves after 1808. Clarke rented Joe's labor out to the Washington Navy Yard, where he worked as a blacksmith. Clarke also appeared as a juror in an early and highly significant petition for freedom case, Ben v. Sabret Scott (1807).

In Thompson's case, the Court held that if there was a will of manumission, and if the widow renounced the will and reserved one-third of the total estate, then the slaves were still entitled to their freedom if there was sufficient property in the estate to "satisfy" her third of the property without resorting to using the slaves. Like some other cases highlighted by the Chief Judge, William Cranch, in his reports, Thompson v. Clarke indicated the Court's generosity in petitions for freedom, especially through its jury instructions.

Enslaved Marriages

This case turned on whether the provision of manumission in the will of John Thompson would remain valid. Thompson's will not only freed Joe and Nelly after ten years of service, but also clearly indicated that they were husband and wife. Joe's marriage to Nelly, while not sanctioned by law, was nonetheless recognized in law through their petition and through the will of John Thompson.

Married in or before 1804, Joe and Nell were 19 and 21 years old respectively. By 1815, they had at least two children—Mary and Sarah Anne. Scholars, such as Thavolia Glymph in Out of the House of Bondage: The Transformation of the Plantation Household (Cambridge, 2008), have argued that white slaveholders saw the black family as their "invention," an arrangement they thought they controlled and maintained, one that "existed at their will," rather than one originating in the independent acts of the enslaved (p. 145-146). Slaveholders such as John Thompson, therefore, viewed slave marriages in self-serving ways and were as likely to break up the family by will or sale as not. Elizabeth Thompson's renunciation of the will and her determination to hold on to her enslaved laborers demonstrated the power, control, and violence that white women wielded. According to Glymph, white women's "agency [in slavery] has been profoundly underestimated." (p. 31)

"In futuro" Manumissions

One of the most unsettled matters of law concerned "in futuro" manumissions. In this case, Joe and Nelly Thompson's daughter, Sarah Ann, was born after the will of John Thompson was administered, but before their term of enslavement ended. If Elizabeth Thompson had accepted rather than renounced the terms of the will, she might have been entitled under Maryland law to hold Sarah Ann as a slave in perpetuity, or perhaps if the judges interpreted the will broadly and favorably to the petitioners, until the age of thirty. The will's terms furthermore raised fundamental questions about whether Joe and Nell were enslaved at all: had they become "indentured" for ten years? Were they in a state of quasi slavery?

States tried to resolve these questions by statute, and judges tried to reason their way toward solutions that varied over time and across states. For example, in 1809, Maryland passed one of the first laws regarding the status of children born to women in futuro: a person granting conditional emancipation through a will could use the terms of the will to determine the status of children born to a woman to be freed in futuro; but if he did not specify, the child would be enslaved for life. States gradually backed away from this position and adopted statutes more favorable to children. By 1849, Virginia's legislature, fed up with the legal complexities of manumission by will and the unclear status it so often conferred, passed legislation designed to limit the effect of judges relying so exclusively on the law of property: "The increase of any female so emancipated by deed or will hereafter made, born between the death of the testator or the record of the deed, and the time when her right to the enjoyment of her freedom arrives, shall also be free at that time, unless the will or deed otherwise provides."

When faced with questions of status in in futuro manumissions, judges often looked first to the intent of the testator. They attempted to carry out his or her intention unless it conflicted with the law or was impossible to attain. In Virginia, the case of Pleasants v. Pleasants (1799) proved initially instructive and widely influential. George Wythe, a prominent lawyer, professor, and judge, ruled that the children of women granted freedom in futuro were also free. Those under the age of thirty when the manumission law went into effect in 1782 would remain enslaved until age thirty, but those born since the statute in 1782 would be immediately free, according to Wythe. Wythe's lenient position was based on a natural rights interpretation and reached toward freedom rather than relied strictly on the law of property. The appellate court did not go as far as Wythe and instead based its more restrained ruling on the law of property and the intent of the testator. The three-judge panel overturned part of Wythe's ruling and held that those born since the statute in 1782 would remain enslaved until the age of thirty. In later cases, judges in Virginia held that manumission was "the utter destruction of the right of property" and evinced considerable suspicion about any "middle state between slavery and absolute freedom." (Maria v. Surbaugh, 1824)

These views would become widespread and were repeated in many other cases, holding that manumissions in futuro did not convey a form of limited freedom to the enslaved, in other words, that there was no "middle ground." Instead, such persons were enslaved until the contingency in the will was fulfilled. Judges also sought wherever possible to discern and follow the intent of the testator. John Thompson's will said nothing about Joe and Nelly's "increase" or her children. In the face of the testator's silence on the matter of children born in futuro, judges generally held that the condition of the children followed that of the mother at the time of their birth, a slave for life (strictly applying the principle of partus sequitur ventrem). If the will included specifications about when various slaves might gain emancipation, such as at age thirty, judges sometimes broadly applied these guidelines.

Historian Thomas Morris in Southern Slavery and the Law, 1619-1860 (Chapel Hill, 1996) concludes: "Obviously the 'authoritative decision in Maria was too much for many Southerners. Whenever they considered the problem as a law-making problem they adopted statutes more favorable to the children than the ordinary rules of property law allowed. At the same time, they did accommodate the intention of slaveowners, but only in the sense that if an owner wished the children of a woman he freed to be slaves for life, he would have to say so." (p. 416)

This case summary was written and researched by William G. Thomas III, and edited by project scholars.