Gateway to Freedom: The Hidden History of the Underground Railroad (16 page)

The case arose from a dispute between Maryland and Pennsylvania that bore a striking resemblance to the controversy half a century earlier that led to enactment of the Fugitive Slave Law of 1793. Margaret Morgan, a slave in Maryland, had been allowed to live as if she were free. She married a free man from York County, Pennsylvania, just north of the Mason-Dixon Line, and in 1832 settled there with him, without objection from her owner (she was not, therefore, a fugitive slave). Five years later, after the owner’s death, his niece hired a professional slave catcher, Edward Prigg, to retrieve Mrs. Morgan. In violation of Pennsylvania’s 1826 law that outlined the legal procedure for the rendition of fugitives and made the removal of a black person from the state by force a felony, Prigg and three accomplices entered the Morgan home at night while the husband was away, seized Margaret Morgan and her six children, and brought them to Maryland. At least one of the children had been born in Pennsylvania and was thus free under state law. Pennsylvania indicted Prigg and his men for kidnapping and requested their extradition. The governor of Maryland refused. Nonetheless, Prigg voluntarily returned to Pennsylvania to face trial and was convicted. The case then made its way to the U.S. Supreme Court.

In 1842, in
Prigg
v
.
Pennsylvania
, the Court overturned Prigg’s conviction, although the ruling was so complicated—with seven justices issuing opinions—that scholars to this day disagree about exactly what was decided. All nine justices affirmed the constitutionality of the Fugitive Slave Act of 1793, and all declared Pennsylvania’s 1826 law on rendition and kidnapping an unconstitutional interference with the right to recover a fugitive. But on other important points, sharp differences emerged.

In the main opinion, Justice Joseph Story of Massachusetts declared that the Constitution’s fugitive slave clause deserved special consideration because without it the Union “could not have been formed.” Indeed, so “fundamental” was this provision that the framers could not have intended to leave enforcement in the hands of the states. Thus, Story concluded, Congress enjoyed the “exclusive” right to legislate regarding fugitive slaves. Story’s description of the states’ relationship to rendition was confusing and, in the opinion of some observers, self-contradictory. Describing national power as exclusive seemed to suggest that states had no role at all in rendition. They could not interfere with an owner’s right to retrieve a fugitive, Story declared, but neither could they be “compelled to enforce” a national law on the subject—that was the responsibility of the federal government. State officials, to be sure, could assist in rendition “unless prohibited by state law,” which seemed to invite the northern states to enact legislation barring public officials from participating in the recovery process. At the same time, Story reaffirmed the common law of recaption, an owner’s “positive, unqualified right” to seize a slave (as Prigg had done) “in every state in the Union” with no legal process at all, so long as this was accomplished without a breach of the peace. Story entirely ignored the problem of kidnapping, or the fate of Mrs. Morgan and her children, which had given rise to the case in the first place. Three members of the court, including Chief Justice Roger B. Taney, vigorously disputed parts of Story’s opinion. They insisted that the states possessed the authority to pass laws to assist slaveholders in recovering their human property.
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Ironies abounded in what the
New
York
Tribune
, founded a year earlier by the antislavery Whig journalist Horace Greeley, called “the most important decision which has proceeded from [the] bench for many years, perhaps ever.” In upholding a right of the South, Story, a strong nationalist, offered a sweeping justification for federal authority over the states, something many southerners normally viewed with alarm. As the
Tribune
noted, “Vehement devotees of state rights” rejoiced over the decision, even though it denied a state “the right to protect its free citizens from being kidnapped and enslaved.” The
Tribune
saw the ruling as a complete victory for slaveholders. The Court, it wrote, had declared the owner’s right to secure the return of a fugitive “absolute and illimitable.” The New York Vigilance Committee agreed, warning that by constitutionalizing the right of recaption, the decision would inspire a new wave of kidnapping. Because of its open-ended sanctioning of the seizure of fugitives and kidnapping of free blacks, one recent commentator has called
Prigg
v
.
Pennsylvania
“the worst Supreme Court decision ever issued.”
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Yet Story himself, on his return to Massachusetts after the Court’s term ended, described the decision as “a triumph for freedom,” since it eliminated any obligation on the part of free states to assist in the capture and return of fugitive slaves. Many northerners quickly interpreted
Prigg
as authorizing states to withdraw altogether from the unpleasant rendition process. Between 1842 and 1848, six free states enacted new personal liberty laws that barred public officials—judges, sheriffs, constables, and others—from taking jurisdiction in cases involving fugitives or offering assistance to those seeking their recapture, and prohibited the use of jails and other public buildings for their detention. The Massachusetts statute was known as the Latimer law, named after the fugitive slave George Latimer, who, with his pregnant wife Rebecca, reached Boston on a ship from Norfolk in 1842. After being recognized by an acquaintance of his owner, George Latimer was arrested and lodged in the city jail. A mob “persuaded” the jailer to release him, and the frightened owner, who had traveled to Boston, accepted $400 for Latimer’s freedom. The following year, the legislature prohibited public officials from arresting alleged fugitives and judges from hearing such cases. New York did not enact a new measure, but its laws allowing alleged fugitives a jury trial and prohibiting magistrates from issuing warrants for their arrest remained on the books.
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Simultaneously, a series of laws and court decisions eliminated slave transit through the free states. Until the 1830s, northern states generally recognized the right of southern owners to bring slaves into their territory for a specified period of time. But beginning with a court decision in Massachusetts in 1836, state after state, including, as we have seen, New York in 1841, adopted the freedom principle that the moment a slave, other than a fugitive, set foot on free soil, he or she became free. The freedom principle made it possible for slaves traveling in the North with their owners to claim their liberty. Taken together, these legal developments placed new obstacles in the path of slaveholders seeking to retrieve fugitive slaves or retain ownership of slaves they brought into the North. At the annual meeting of the New York Vigilance Committee in 1846, a speaker commented on the “great change” that had taken place. The courts were now “respectful” to the committee’s lawyers, and it was no longer necessary to “hurry” fugitives to Canada—they were “comparatively safe” in New York and New England. This would change dramatically in 1850.
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One New York jurist who proved remarkably sympathetic to fugitive slaves was John W. Edmonds, a circuit judge from 1845 to 1847 and subsequently a member of the state’s Supreme Court. When Edmonds died in 1874, the
New
York
Times
reported that he was best known for his advocacy of “Spiritualism,” having published several works on the subject in the 1850s. Before that, however, Edmonds was a protagonist in two highly publicized legal cases relating to fugitives. By this time, John Jay II had emerged as the city’s leading lawyer in fugitive slave cases. As Gay noted, Jay provided his services without charge and “at great risk to his social and professional standing.” Jay tried to remain aloof from abolitionists’ internecine conflicts, refusing to “connect myself prominently” with the “old” or “new” organizations and taking up cases at the request of both outposts of the underground railroad. Jay’s work did not go unnoticed by New York’s pro-southern elite. In 1850, when he sought membership in a “fashionable club,” Jay was “
black
-
balled
” on the grounds that he had “acted as counsel for a fugitive slave.”
34

One of Jay’s cases before Judge Edmonds, which produced “much excitement” in the city, involved George Kirk, a twenty-two-year-old slave who hid on a ship sailing from Savannah to New York in October 1846. The captain discovered him at sea and placed him in chains, planning to return Kirk to his owner. When the ship docked in New York harbor, black stevedores engaged in unloading the vessel heard Kirk’s cries for help. One of them reported his presence to Gay’s office, whereupon Elias Smith and Louis Napoleon, who worked there, obtained a writ of habeas corpus from a local judge, requiring that Kirk be brought to court. (Napoleon played a role in this and other legal proceedings even though he was unable to read or write. The
New
York
Times
later described him as “a man of no education, but of considerable force of character.”)
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The ship captain declared that Kirk had admitted to being a fugitive, and added that for years “malicious and evil disposed persons” had organized systems of “robbery” to deprive slaveowners of their human property.

Gay engaged John Jay II and another attorney, Joseph L. White (who unlike Jay charged for his services), to defend Kirk. They argued that since the captain lacked a property interest in Kirk, he had no right to hold him or exercise the right of recaption. Moreover, Jay maintained, keeping a person in chains had a “contaminating influence” on the public culture of New York. Edmonds agreed, ruling that the rendition of a fugitive must take place according to legal procedures and that no person in New York could be imprisoned privately by another. He ordered Kirk discharged. Kirk was hustled off to Gay’s office on Nassau Street, where “a large number of colored persons, male and female,” gathered to protect him.
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The matter, however, did not end there. A New York law dating to 1817 allowed the captain of a ship who discovered a hidden fugitive to obtain from the mayor an order to return him. At the captain’s request, Democratic mayor Andrew H. Mickle directed the police to arrest Kirk. “The whole police force of the city,” complained the
Tribune
, “turned slave-catcher.” That afternoon, cartmen were observed removing a crate labeled “American Bible Society” from the antislavery office. Police followed the cart, opened the box, and discovered Kirk. (Jay, who feared exactly such an outcome, had suggested that a black boy be placed in the box, allowing Kirk to slip away as the police were led astray.) Jay returned to Judge Edmonds for another writ of habeas corpus. This time, Edmonds declared the 1817 law unconstitutional, in accordance, he said, with the
Prigg
ruling that only the federal government possessed the authority to legislate concerning fugitives. Once again, Kirk was discharged from prison. He rode off in a carriage, seated alongside Elias Smith and Isaac T. Hopper’s son Josiah. Gay and Jay arranged for him to be sent to Boston, “beyond the reach of any bloodhounds.” Francis Jackson of the Boston Vigilance Committee subsequently reported that Kirk was attending school and had learned shoemaking. Thirty years later, he was still practicing that craft in Boston.
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For two weeks, Gay worked feverishly on the Kirk case. “Wasn’t it a glorious triumph,” he exulted to Wendell Phillips, noting that his office had fewer than half-a-dozen people to carry out such endeavors. Gay could not refrain from using the case to reinforce Garrisonian doctrine and lambaste the Liberty party. “When the Union is dissolved,” he wrote in the
Standard
, “a fugitive slave will be safe here . . . and
not
before
.” He claimed that Horace Dresser, the Vigilance Committee attorney now associated with the Liberty party, had tried to take over the case before Jay’s arrival in court and had muddied the legal waters by making improper motions. Nonetheless, New York’s antislavery community, few of whom shared Gay’s Garrisonian outlook, hailed the Kirk case as a great victory. The
Tribune
saluted the “legal knowledge and indefatigable exertions of Mr. Jay” and “the logical force . . . and remarkable power of expression of Mr. White.” “Mr. Gay and Mr. Smith,” declared a religious newspaper in Boston, “deserve the thanks of all lovers of freedom. . . . It is a marked sign of progress that a slave cannot be reclaimed, even in the great Babylon of American trade, without creating an excitement that shakes it throughout its borders.” Southerners found the outcome outrageous. “We have long ago come to the conclusion,” declared a Richmond newspaper, “that the courts in the non-slaveholding states will cease to enforce the laws in relation to fugitive slaves.”
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Edmonds’s handling of another case heightened southern annoyance and would be cited in Congress in 1850 as evidence of the need for a new fugitive slave law. In December 1848, John Lee, a slaveowner in Frederick County, Maryland, dispatched two men to New York to apprehend the alleged fugitive Joseph Belt. Presumably exercising the right of recaption, they seized Belt on a city street in broad daylight and spirited him to Brooklyn, where they held him captive for two days while awaiting a ship bound for Maryland. John Jay II rushed to Judge Edmonds to request a writ of habeas corpus, which the judge duly issued, not only directing two policemen to retrieve Belt, but also ordering the arrest of two other officers who had assisted the slave catchers. (Another judge subsequently cleared the latter two of carrying out an illegal arrest, even though Edmonds himself testified against them.) When Edmonds convened a hearing to determine Belt’s status, “great numbers of . . . the colored population” gathered in his courtroom. Thomas Lee, the nephew of the Maryland claimant, arrived to testify that he recognized Belt as his uncle’s slave. Edmonds demanded proof that the laws of Maryland in fact established slavery; when a statute book was produced, he responded that there was no evidence that it contained a correct version of the state’s laws. New York, he continued, presumed the freedom of every person in the state and did not allow anyone to seize and hold another individual. He ordered Belt’s release. Lee returned to Maryland, and Belt, according to the
Standard
, left the city via the underground railroad.
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