At the first glance, it's easy to miss that there was anything unusual about James Brown, a 64-year old man who was born in South Carolina and whose household was shown in Lancaster Township, Jefferson County, in the 1850 census as enumerated on October 25 that year. But a closer look hints that there was something very different.
The census shows Brown, indicated as white since no race was listed, with five other individuals in the household, all mulattoes. They were Harriet Brown, age 34, Francis Brown, age 18, Louisa Brown, age 11, Jerome B. Brown, age 7, and Theresa V. Brown, age 2, all born in Mississippi. The 1850 census did not record relationships so it could not show that Harriet was Brown's slave and mother of the four younger Browns who were also James' children, and under the laws of Mississippi were his slaves when they were born.
These details emerge via a court case, Shaw vs. Brown, decided by the Mississippi High Court of Errors and Appeals in April 1858, which shows that this family became the subject of a court fight pitting James' brother John and some nieces and nephews against their mulatto cousins as the former tried to claim the children who remained slaves when James died. For reasons not stated, the case revolved around Francis and Jerome only, with the two daughters not mentioned—perhaps they lacked the market value of healthy young male slaves, or they were not listed by name in the will.
The court's decision spanned about 34,000 words, but taking out the legal arguments, the facts were that James took the children to Indiana to receive an education and that he also intended to set them free, which he did via a will dated Oct. 9, 1853, and then died in 1856. Their status was also the subject of freedom papers filed for Francis and Jerome in Jefferson County and recorded in a mortgage book, unfortunately part of the records awaiting possible restoration following the 2009 courthouse fire.
The family's stay in Jefferson County was brief. Brown moved to Greene County, Indiana, in 1855, and died there. Harriett and the three youngest children were shown in Fairplay in Greene County, in the 1860 census. Francis, apparently married, headed his own household there. However, the reasons for their presence in Lancaster was very important.
Although it's not spelled out in the court papers concerning where Brown intended to obtain the education for his children, it seems obvious he came to Lancaster Township so they could attend the Eleutherian College. I do not know if college recorded their enrollment, but the 1850 census shows Brown and his family two households before John Craven, that institution's founder.
A variety of legal arguments went into the effort by Brown's relatives to re-enslave his children. They argued he couldn't legally take them out of state to free them and also cited some visits in which the older children visited Mississippi as a return to residency in the state. And the plaintiffs cited the 1850 constitution of Indiana, which barred the entry of free blacks into Indiana after 1852, another issue in their claim that the will should have been voided. They wanted Brown declared intestate, in which case the children could be sold and proceeds distributed to the other heirs.
They disputed facts that James claimed paternity of the children, some witnesses claiming he never said he intended to free them, while the plaintiff claimed he took Francis and Jerome to Cincinnati in 1849, intending to free them, and executing an emancipation deed, but then returning with them to Amite County, Miss. to live and that they spoke of that state as their legal residence. The plaintiff also claimed James Brown said he was going to sell the children, while at the same time alleging he fraudulently took them North to free them with the intention of returning to the South.
Richard Shaw, one of the executors, said Brown didn't make it to Cincinnati because of low water in 1849, but did reach that city and freed them and their mother on May 11, 1850 and that they settled in Indiana and lived in the state from that time on.
The list of witnesses included James' Brown, John Brown, and John's son, William, and E.A. Haygood, a son of a deceased sister of James, along with Joseph Richardson, one of James' Brown's plantation overseers, whose testimony was designed to show James didn't intend to free his children and that they had maintained their Mississippi residence. Statements were made on both sides by what appear to have friends and neighbors, including some that said the children called Brown "father" and he treated them as such.
Strong testimony in favor of the Browns' having become Hoosiers came from nine Jefferson County residents, including James Nelson, who was active in the Underground Railroad. All lived in the Lancaster area. While another executor, Lemuel Hanks had resigned his position, Richard Shaw took an active and sympathetic role and had warned Francis Brown not to return to Mississippi. Unfortunately, the group didn’t spell out the educational plans. However, Nelson had served as an officer of the Eleutherian College.
The court held it didn't matter in Mississippi what the Indiana law said--the Browns had been allowed to live there and it was Indiana’s business if it didn’t enforce its own laws. It also found there was nothing illegal in Brown's taking the children to Indiana for an education, which, as slaves, they could not get in Mississippi.
The Mississippi court, however, appears to have made a major legal blunder. It said that the Brown children's residence in the Hoosier state because during that time, "the relation of master and slave was of necessity dissolved." However, my reading of the Dred Scott decision, issued in 1857 by the U.S. Supreme Court ruled that moving to a free state did not remove slaves from their position, which made the decision highly unpopular in the north. While the court's statement was in error, the fact that Brown executed deeds to free his children, made it a moot point. (As a non-lawyer, I believe Dred Scott meant Brown had to utilize a legal document to free the children, not simply move them north).
Since a slaveowner could not utilize a will to devise property to a slave, the court's pivotal question was whether Francis and Jerome were free blacks when the will was made, largely proved by the testimony of an Ohio notary who witnessed the emancipation deeds. Whatever the judge's personal opinions, they rejected a lower court ruling which they said was partly based on prejudice against Negroes, not only the law.
After all the arguments, the court ruled the Browns were free, reversing the lower court.