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Priscilla Queen v. Francis Neale


Paul S. Maco, Holy Trinity History Team


This is a true story of challenge to power and status, and of human dignity affirmed through personal initiative and tenacity. It is a story of disappointment as well, for the journey from enslavement to freedom was long with many setbacks. Indeed, the struggle continues even today. This story is of a moment in that journey, full of the detail and complexity of law, of the courageous enslaved who, undeterred by setback and the terrifying potential consequences of failure, pressed on to secure freedom for themselves and their descendants.


Francis Ignatius Neale, the founder and first pastor of Holy Trinity, was born in 1756 in Charles County Maryland, one of thirteen children of William and Anne Brooke Neale, a wealthy, prominent, Maryland Catholic family.[1] He was a fifth-generation descendant of Captain James Neale, who came to Maryland around 1637 in the service of Governor Leonard Calvert for which he received a manorial grant of two thousand acres near what would later become Port Tobacco in Charles County. Like three of his older brothers, William, Leonard, and Charles, Francis was sent at an early age to the Jesuit College at St. Omer’s in Flanders. All four became Jesuit priests. Two, like Francis, returned to the United States. Leonard would become president of Georgetown and second archbishop of Baltimore, and Charles, chaplain of the first Carmelite convent in the United States at Port Tobacco. Francis, on his return in 1788, was assigned to St. Thomas Manor near the Neale family estate and Port Tobacco.[2]





The prominence of his family may have had much to do with Bishop Carroll’s bringing him to Georgetown in 1792 – where he would remain pastor of Holy Trinity until 1817. In addition to his duties as Holy Trinity, Francis Neale became on arrival the unofficial Treasurer of Georgetown College,[3] and later served as its Vice-President and President,[4] as well as take on various duties with the Corporation of Roman Catholic Clergymen of Maryland,[5] the trust created following the suppression of the Jesuits by the Pope to secure the properties then held by individuals for the Jesuits since the time under British rule when religious orders could not own property.[6] At the time, the Jesuits were among the largest enslavers in Maryland.[7]


On January 8, 1810, a Petition for Freedom by Priscilla Queen against Francis Neale was filed in the Circuit Court of the District of Columbia by her attorney, Francis Scott Key. Her petition stated that “she is unjustly held in bondage as a slave” and “as she apprehends she may be removed out of the County & district before the next term of this Court she prays a subpoena to issue to the said Francis Neale … immediately.” [8]


Contrary to much currently held understanding, in the late 18th century the institution of slavery had no firm ground in the laws of England or the new United States. After the decision in the 1772 Somerset case,[9] enslaved people in England could individually secure their freedom in the courts. Somerset, an enslaved Black, had been brought to England by his enslaver Stewart and deserted him. Stewart had him seized and placed on a ship to be taken to Jamaica and sold. Somerset sued for release and at trial was freed, with Lord Chief Justice Mansfield declaring his seizure “not allowed or approved by the laws of this kingdom.”[10]


Three years later in Scotland, Joseph Knight claimed that although purchased in Jamaica by his enslaver Wedderburn from a slave trader, the act of landing in Scotland freed him, as slavery was not recognized in Scotland. In Knight v. Wedderburn, the Scottish Court of Session (Scotland’s Supreme Court) agreed and ruled “the state of slavery is not recognized by the laws of this kingdom, and is inconsistent with the principles thereof.”[11]


In 1783 the Massachusetts Supreme Judicial Court, in a case began as a freedom suit, abolished slavery under the Massachusetts Constitution of 1780.[12]


In each of these cases, an enslaved Black had initiated and tenaciously pursued her or his case to secure a landmark ruling allowing others to follow.


Individual enslaved Blacks in Maryland did the same.[13] In 1791, the Maryland High Court of Appeals affirmed the General Court’s decision freeing Mary Butler, the culmination of an effort begun 28 years earlier.[14] Mary was a descendant of Eleanor “Irish Nell” Butler, a white indentured servant who in 1681, when free of her indenture, married enslaved Charles, while knowing that under the law at the time her descendants would be enslaved. Decades later in 1763, after legislative changes allowing freedom to children of free white women married to enslaved men, a grandson of Irish Nell and his wife Mary sued their enslaver. Although victorious in 1770 after a long trial, their favorable verdict was overturned on appeal the following year.[15] Thirteen years (including a war of independence) later, their daughter Mary Butler renewed the fight and brought suit against her enslaver, Adam Craig, with her lawyer invoking Nell Butler’s rights as an English subject and the injustice and cruelty of passing on penalties to innocent generations of offspring. She won, and her decision was upheld on appeal in 1791.[16] Now a free woman, she appeared as a witness in court for her children who, successful in their petitions, were awarded their freedom.[17] According to historian William Thomas, the Butler family filed more than ninety suits for freedom, winning every single one of them between 1787 and 1791.[18] Among the Butlers now eligible for freedom as descendants of Irish Nell were Lucy and Liddy Butler, early parishioners of Holy Trinity.[19]


That same year, on October 15, 1791, Edward Queen filed a petition for freedom against the Rev. John Ashton in the General Court of the Western Shore of Maryland.[20] Ashton was named both because he was Queen’s enslaver and the procurator general of the Corporation of Roman Catholic Clergymen which enslaved Queen’s entire family.[21] The Queens were descendants of Mary Queen, according to deposition testimony admitted into evidence, a free woman of color from New Spain who had come to Maryland from England as an indentured servant around 1713. In May 1794 the jury reached a verdict that Mary Queen was not a slave and Edward Queen was freed,[22] as subsequently were twenty one other members of the Queen family in April 1796 by a favorable jury verdict in Prince Georges County Court for Edward’s mother Phillis in Phillis Queen v. John Ashton.[23] In this case, in addition to the testimony as to Mary Queen originating in New Spain and coming to Maryland by way of England, the jury heard a contrary narrative in the deposition testimony of Benjamin Duvall, an 83 year old county resident who had met and spoken with Mary Queen and testified she was from Africa and always enslaved. The jury gave it little weight. Benjamin Duvall’s testimony would later have greater significance.


For the enslavers, the combined verdicts were staggering. William Thomas estimates “the Queen family members freed in April 1796 represented more than a quarter of the people the Jesuits enslaved at White Marsh” and “constituted one of the largest single financial losses in the annals of the Jesuit corporation.”[24] Freedom suits, for a brief time following the success of the Queen and Butler families, would proliferate.


Edward Queen was represented by Gabriel Duvall and Philip Barton Key, the uncle of Francis Scott Key. Philip Barton Key was considered to have been quite an effective adversary. Following the jury verdict favoring Edward Queen, the Jesuits hired Barton Key for the sum of 4 pounds 17 shillings sixpence, according to 1774 entries in the St. Thomas Manor Account Book, “to... retain or stop the mouth of the lawyer Key from speaking in favor of the Negroes who have sued for their freedom.”[25]


As freedom suits were finding success in Maryland courts, the Maryland Legislature was at work. In 1793, the Legislature changed the courts of original jurisdiction for freedom suits from the General Court (drawing jury pools from many counties with non-slaveholding majorities) to the lower district courts of the county where the petitioner and enslaver lived (from which a jury would be selected – and potentially influenced by the enslaver).[26] The shift to county courts for initiation of freedom suits soon took its toll. In June 1794, Nancy Queen filed a Petition for Freedom in Charles County Court against Charles Sewall, a Jesuit priest and her enslaver, claiming her freedom as the great granddaughter of Mary Queen. In August 1796, four months after the jury verdict freeing Phillis Queen and her descendants, the jury for Nancy Queen heard the deposition of Benjamin Duvall as to Mary Queen’s origins and found Mary Queen “always was a slave.” The court ruled Nancy Queen was not entitled to her freedom and “the petitioner return to her master.”[27]


State legislatures were not the sole source of impediments to the continued success of freedom suits. In the courts the developing law of hearsay – that which does not come from "the personal knowledge of the witness, but from the mere repetition of what he has heard others say”[28] – would soon become a powerful barrier to admission of evidence regarding an ancestor’s race or past presence in England, two foundational elements of the freedom suits.


Priscilla Queen was “born in 1764, the great-granddaughter of Mary Queen [and] one of the last Queens still held by the Jesuits.”[29] Aside from this moment in time captured in the records of the Circuit Court at which an enslaved woman bravely challenged her powerful owner, little else is known about Priscilla Queen. When her case against Francis Neale went to trial in June 1810, Neale’s lawyers objected to entry of testimony favorable to her as hearsay, including testimony allowed in prior successful petitions of Queen family members. Critically, the excluded testimony was that of Fredus Ryland who had heard first-hand from Mary Queen of her free birth in New Spain and three years in England (which would have allowed invocation of the Somerset case as received common law),[30]while the counternarrative deposition testimony of Benjamin Duvall was allowed, without initial objection by Key. The court ruled "The declarations of an ancestor, while held as a slave, cannot be given in evidence. Declarations of deceased persons, that the ancestor was free, may be given in evidence, to show that the ancestor was in fact free, that is, not held in slavery.”[31] A jury was empaneled on June 20, 1810, but no verdict is reported. On June 21, 1810, Key subsequently filed a bill of exception to the court’s refusal to allow as hearsay a reading of portions of a deposition containing Mary Queen’s account of her origins.[32]


In a case filed on the same day and in the same court as Priscilla Queen’s, her lawyer, Francis Scott Key, filed a petition for freedom on behalf of Priscilla’s relative Mina Queen and her minor child Louisa, also descendants of Mary Queen, against their enslaver John Hepburn.[33] John Hepburn was represented by John Law, Francis Neale’s lawyer, and Walter Jones. As in Priscilla’s case, the D.C. Court disallowed critical testimony as hearsay. On a writ of error, the case was appealed to the United States Supreme Court. The majority opinion written by Chief Justice John Marshall denied the appeal and upheld the lower court, holding 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."[34] In the lone dissent, newly appointed Justice Gabriel Duvall, who before appointment had represented Edward Queen and other descendants of Mary Queen, stated:


In Maryland the law has been for many years settled that on a petition for freedom where the petitioner claims from an ancestor who has been dead for a great length of time, the issue may be proved by hearsay evidence, if the fact is of such antiquity that living testimony cannot be procured. Such was the opinion of the judges of the general Court of Maryland, and their decision was affirmed by the unanimous opinion of the judges of the High Court of Appeals in the last resort, after full argument by the ablest counsel at the bar. I think the decision was correct. Hearsay evidence was admitted upon the same principle, upon which it is admitted to prove a custom, pedigree and the boundaries of land; because from the antiquity of the transactions to which these subjects may have reference, it is impossible to produce living testimony. To exclude hearsay in such cases, would leave the party interested without remedy. It was decided also that the issue could not be prejudiced by the neglect or omission of the ancestor. If the ancestor neglected to claim her right, the issue could not be bound by length of time, it being a natural inherent right.


It appears to me that the reason for admitting hearsay evidence upon a question of freedom is much stronger than in cases of pedigree, or in controversies relative to the boundaries of land. It will be universally admitted that the right to freedom is more important than the right of property.


And people of color, from their helpless condition under the uncontrolled authority of a master, are entitled to all reasonable protection. A decision that hearsay evidence in such cases shall not be admitted, cuts up by the roots all claims of the kind, and puts a final end to them, unless the claim should arise from a fact of recent date, and such a case will seldom, perhaps never, occur.[35]


The courthouse doors were now closed to freedom suits dependent upon hearsay testimony. Undeterred, the struggle for freedom continued. Tenacious enslaved men and women, together with their lawyers carefully examined the facts of their particular situation, the quality of supporting evidence, circumstances offered by new or existing statutes such as Maryland’s 1796 non-importation law,[36] and various other aspects of their lives that would provide the basis for a freedom claim that a court would hear. These efforts continued until the courthouse doors were slammed tightly shut in 1856 when, in Dred Scott v. Sandford, the Supreme Court held that former slaves did not have standing in federal courts because they lacked U.S. citizenship, even after they were freed.[37] The doors would not open again until after the Civil War and the Thirteenth and Fourteenth Amendments nullified the Dred Scott decision.


In June 1813, after the February 5, 1813 Supreme Court decision in Mima Queen v. John Hepburn, the D. C. Circuit Court dismissed Priscilla Queen’s case.[38]


Francis Neale continued as pastor at Holy Trinity until 1817 and was appointed Superior at St. Thomas Manor and pastor of St. Ignatius Church at nearby Chapel Point, where he was buried on his death in 1837.[39]


The fate of Priscilla Queen after 1813 remains unknown.[40]


PSM

July 2022


An abbreviated version of this article was read in Holy Trinity Church on April 5, 2022 by the author as part of "In Our Forbears' Footsteps: A Pilgrimage to Remember our Forgotten Black Parishioners."


[1] The Neales were, as Sharon M. Leon observes, “a large, powerful Catholic slaveholding family.” Sharon M. Leon, “Marriage in the Eyes of the Clergy” Jesuit Plantation Project, Life and Labor under Slavery: the Jesuit Plantation Project · Marriage in the Eyes of the Clergy · Jesuit Plantation Project. Leon also observes “Together the clergymen who hailed from these families (the Carrolls, Fenwicks, and Neales) exercised a great deal of control over the lives of the enslaved owned in common by the Jesuits, but also over the lives of the enslaved people owned by their parents, siblings, in-laws, cousins, and nieces and nephews,” Leon, “Jesuits from Elite Slaveowning Families” Jesuit Plantation Project, Life and Labor under Slavery: the Jesuit Plantation Project · Jesuits from Elite Slaveowning Families · Jesuit Plantation Project [2]Warner, William V. At Peace With All Their Neighbors, Catholics and Catholicism in the National Capital, 1787-1860, pp. 18-19, Washington (DC): Georgetown University Press, 1994; Kelly, Laurence J, SJ. History of Holy Trinity Parish, pp. 12-13, Washington, DC, 1795-1945. Baltimore (MD): The John D. Lucas Printing Company, 1945. [3] Id., p. 23 n. 26. [4] Id., at 27 and 99. [5] Thomas, William G., III A Question of Freedom, “as duly appointed agent of the corporation” p. 126, Yale University Press, 2020. [6] Cook, Bernard A., Maryland Jesuits and Slavery, Pt. I, citing Joseph Zwinge, S. J., "The Jesuit Farms in Maryland. Facts and Anecdotes." Woodstock Letters XXXIX, no. 3 (1910), p. 379., available at https://www.curavirtualis.org/post/maryland-jesuits-and-slavery-pt-i#viewer-4igta. [7] Thomas, at 20. [8] https://slaveryarchive.georgetown.edu/items/show/34. [9] Somerset v Stewart, Easter Term 12 Geo. 3, 1772, K. B. http://www.commonlii.org/int/cases/EngR/1772/57.pdf (May 14, 1772). [10] Id. [11] National Records of Scotland: Slavery, freedom or perpetual servitude? – the Joseph Knight Case, available at: https://www.nrscotland.gov.uk/research/learning/slavery/slavery-freedom-or-perpetual-servitude-the-joseph-knight-case#:~:text=Knight%20claimed%20that%2C%20although%20many,found%20in%20favour%20of%20Wedderburn. [12] See The Quock Walker Case, Massachusetts Constitution and the Abolition of Slavery at: https://www.mass.gov/guides/massachusetts-constitution-and-the-abolition-of-slavery#-the-quock-walker-case-. [13] For a narrative of freedom suits in Maryland, see Thomas, William G., III A Question of Freedom, n. 4, supra. [14] Butler v. Craig, 2 Md. 214 (1787), affirmed, Court of Appeals, June 1791, available at: https://cite.case.law/md/2/214/ and in the original at: https://msa.maryland.gov/megafile/msa/speccol/sc5400/sc5496/000500/000534/images/2_h_mch_214.pdf. [15] William Butler and Mary Butler v. Richard Boarman, available at: https://msa.maryland.gov/megafile/msa/speccol/sc5400/sc5496/000500/000534/images/1_h_mch_371.pdf (see reversal at 376, p. 7 of pdf). [16] N. 14, supra. [17] Thomas, at 27; Samuel Butler, Flora Butler, and Tracey Butler v. Adam Craig, available at: https://earlywashingtondc.org/cases/oscys.caseid.0605. [18] Thomas, at 24. [19] See Cook, Bernard A, Holy Trinity Parish and Race: An Overview (Pt. I), available at: https://www.curavirtualis.org/post/holy-trinity-parish-and-race-an-overview-pt-i. [20] Petition for Freedom, Edward Queen v. John Ashton, (Oct. 15, 1791), available at: https://earlywashingtondc.org/doc/oscys.mdcase.0001.017. [21] Thomas, at 52. [22] Judgment, Edward Queen v. John Ashton (May 23, 1794), available at: https://earlywashingtondc.org/doc/oscys.mdcase.0001.012. [23] Queens v. John Ashton, Docket, available at: https://earlywashingtondc.org/doc/oscys.mdcase.0009.002. [24] Thomas at 77. [25] Id, at 68, n. 35. [26] Id, n. 34, citing Laws of Maryland, Sessions Laws, 1793, chap. 55. [27] Nancy Queen v. Charles Sewall. Judgment Record, available at: https://earlywashingtondc.org/doc/oscys.mdcase.0005.001 [28] O Say Can You See, Priscilla Queen V. Francis Neale, Hearsay, citing Black’s Law Dictionary 4th ed,, available at: https://earlywashingtondc.org/cases/oscys.caseid.0025. [29] O Say Can You See, The Timing of Queen v. Hepburn: An exploration of African American Networks in the Early Republic, available at: https://earlywashingtondc.org/stories/queen_v_hepburn. [30] N. 28, supra, Thomas at 169-170. [31] Id., Priscilla Queen v. Francis Neal, Circuit Court Report, available at: https://earlywashingtondc.org/doc/oscys.report.0003.001, and Reports of Cases Civil and Criminal in the United States Circuit Court of the District of Columbia, from 1801 to 1841, Vol. II. P. 3. [32] Priscilla Queen v. Francis Neale. Petitioner's Bill of Exceptions, available at: https://earlywashingtondc.org/doc/oscys.case.0025.004. [33] Mima Queen v. John Hepburn, Petition for Freedom, available at: https://earlywashingtondc.org/doc/oscys.case.0011.001. F. S. Key filed a third Petition for Freedom on the same day in the same court, Hester Queen v. James Nevitt & Richard Nally, Petition for Freedom, https://earlywashingtondc.org/doc/oscys.case.0026.001, on behalf of Hester Queen, a descendant of Mary Queen, through which line is uncertain, https://earlywashingtondc.org/families/queen. Thomas posits that all three were part of a strategy, as he explains in The Timing of Queen v. Hepburn: An exploration of African American Networks in the Early Republic, available at: https://earlywashingtondc.org/stories/queen_v_hepburn. [34] Mima Queen and Child, Petitioners for Freedom, v. Hepburn, 11 U.S. 290, 7 Cranch 290. 3 L.Ed. 348, February 5, 1813, available at: https://www.law.cornell.edu/supremecourt/text/11/290. In delivering the opinion of the Court, Chief Justice Marshall addressed the admission of hearsay testimony as evidence by noting the rule “that ‘hearsay’ evidence is in its own nature inadmissible.” Marshall characterized as “very justly observed” a statement “by a great judge” that “‘all questions upon the rules of evidence are of vast importance to all orders and degrees of men: our lives, our liberty, and our property are all concerned in the support of these rules, which have been matured by the wisdom of ages, and are now revered from their antiquity and the good sense in which they are founded.’” Marshall described hearsay’s “intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover, combine to support the rule that hearsay evidence is totally inadmissible” and warned that “[i]f the circumstance that the eye witnesses of any fact be dead should justify the introduction of testimony to establish that fact from hearsay, no man could feel safe in any property, a claim to which might be supported by proof so easily obtained.” [35] Id. [36] See, e.g. O Say Can You See, Esther & children v. Bernard H. Buckner, available at: https://earlywashingtondc.org/cases/oscys.caseid.0466. [37] 60 U.S. 393 (1856). [38] O Say Can You See, Priscilla Queen V. Francis Neale, Summary, available at: https://earlywashingtondc.org/cases/oscys.caseid.0025. [39] Kelly, at 15. [40] Howell, Megan and Kelly, Katherine, Podcast: Humanizing the Narrative – The Queen Family, recording at 9:36 -10:06, The Georgetown Slavery Archive, available at: http://slaveryarchive.georgetown.edu/items/show/203.


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