O Say Can You See

Summary

The Butler family was the one of the largest free black and enslaved families in Maryland. More than 150 eventually sued for freedom. Their claim in each case was that their ancestor Eleanor "Irish Nell" Butler was a free white woman.

The Butlers began suing for freedom in the colonial courts before the American Revolution. At issue were the provisions of a 1664 act that penalized any free woman who married an enslaved man with lifetime enslavement and the enslavement of her children. Eleanor Butler married Charles, an enslaved man, in 1681 before the 1664 act was repealed. Her children were born after its repeal. The Butlers argued that they were free under its provisions.

In 1770, William and Mary Butler sued Richard Boarman on these grounds, and the provincial court decided initially in their favor and released them from bondage. But on appeal before the highest court in the colony, Boarman's attorneys argued that Eleanor and her children were property, and property could not be taken away by legislation "ex post facto" unless specifically stated in the act of assembly. The colonial court reversed the lower court's judgment, and the Butlers remained enslaved.

After the Revolution, the Butlers renewed their freedom suit arguing that the 1664 act was highly penal and therefore unjust. Twenty-six-year-old Mary Butler filed one of the family's first freedom petitions in 1783 against Adam Craig. Her case came before the General Court in 1787. Butler's attorney Jeremiah Townley Chase, who would later become the Chief Judge of the court, argued that the previous judgment in the colonial court was nonbinding. He introduced testimony, much of it hearsay, from white witnesses who stated that Eleanor Butler had never been convicted of marrying an enslaved man and, therefore, that the 1664 act could not have been applied to her or her children. The jury in the General Court agreed and ruled that Mary Butler was the descendant of a free white woman. The court ordered that she be immediately released from slavery.

Craig appealed the case to the High Court of Appeals. The hearing took place in June 1791. Unlike the earlier colonial high court, the justices affirmed Mary Butler's freedom. Just a few months later at the next term of the General Court in October 1791, the Queens and Mahoneys sued for freedom. More families followed.

Thirty-five-years-old, Mary Butler was free and in subsequent freedom suits, took the stand as a witness to document the family's genealogy and claim to freedom.