The Curious Origins of Hearsay: Freedom Suits and Families in Postrevolutionary Maryland

This paper examines the use of hearsay evidence in petition for freedom cases to document the genealogies and legal standing of mixed race families in post-Revolutionary Maryland. Acting on local knowledge, Maryland judges, lawyers, and litigants deployed hearsay in a range of cases, formulating jurisprudence around cases that constituted a highly significant form of freedom making. These local circumstances and legal strategies came under scrutiny in Queen v. Hepburn in 1813 when the Marshall court disallowed hearsay evidence in a petition for freedom, overturning Maryland's body of precedent allowing hearsay, and thereby establishing the procedural rule. Building on the work of legal historian Martha S. Jones that everyday claims by African Americans had effects far beyond the local courthouse, this paper examines how litigants in Maryland used hearsay testimony to bring alliances and networks to life, protect family genealogies, and expose the fundamental contradictions of enslavement. Ruling various depositions as "hearsay," the justices tried to isolate certain legal claims in the flow of time to exclude some and allow others. This examination of the Maryland petitions for freedom reveals how families used the law to resist enslavement across multiple generations through time. The history of the Queens and other mixed race families have been hidden from view for so long in part because these individuals and their relationships are barely visible in the publication of the case reports by William Cranch, chief judge of the D.C. court. This paper (part of a larger digital history and monograph project outlined more fully at earlywashingtondc.org) offers to make visible the genealogical and historical freedom making that Cranch rendered invisible. Given the reconsideration of the use of hearsay in cases dealing with violations of human rights, the history of American use of hearsay has relevance to contemporary questions of truth and reconciliation.