Authors: H.W. Brands
Buchanan meanwhile positioned himself as the candidate of compromise and union. He had a point. Unlike Frémont, who didn’t even appear on the ballot in most of the South, Buchanan could credibly claim to be a national candidate. (The candidate of the American Party, former president Millard Fillmore, provided Buchanan’s chief opposition in the South.) Buchanan self-consciously adopted the mantle of Henry Clay and Daniel Webster, to the point of persuading sons of the two deceased lawmakers to endorse his candidacy.
As the election approached, Buchanan seemed the safe choice, Frémont the risk. And when voters went to the polls, they chose safety—albeit in an ominously sectional fashion. Buchanan carried all the slave states but Maryland, which he lost to Fillmore. Frémont carried all but five free states, which he lost to Buchanan. These last furnished Buchanan’s margin of victory.
The result didn’t surprise Jessie, who had seen it coming. Indeed, after the Republicans lost a preliminary contest in Pennsylvania, but before the general election, she declared, “I heartily regret the defeat we have met and do not look for things to change for the better.” An opportunity had been lost: for the Union, and for her husband—and for herself. She almost certainly was thinking of the two of them in partnership when she wrote, “I wish the cause had triumphed. I do wish Mr. Frémont had been the one to administer the bitter dose of subjection to the South, for he has the coolness and nerve to do it just as it needs to be done, without passion and without sympathy. As coldly as a surgeon over a hospital patient would he have cut off their right hand, Kansas, from the old unhealthy southern body.”
N
EITHER JOHN NOR
Jessie Frémont could know that his 1856 defeat marked a portentous break in the run of their stunning personal good luck since 1849. For the moment it seemed no more than a temporary setback, from which they would soon recover. And in defeat they could congratulate themselves that the simple fact of a Frémont candidacy had advanced
the cause of antislavery by drawing the line between slavery and freedom more clearly than ever.
Ironically, even as California gave the nation’s new antislavery party its first presidential candidate, California itself was rethinking its opposition to slavery. Or perhaps this wasn’t ironic, but merely a measure of how determined and resourceful the advocates of slavery were becoming as their enemies organized against them—and of how California itself was changing, almost a decade after the gold discovery. By the mid-1850s, immigration to California had slowed considerably, as word got out that mining was hard labor, getting harder by the year. Increasingly, new arrivals followed the path of Leland Stanford and William Sherman: into endeavors other than mining. Farmers discovered the virtues of California’s climate and soil for growing all manner of crops, and the valleys the argonauts had seen as simply additional distance to be covered en route to the mines attracted populations of their own. The institutions of government and the conventions of society approximated more closely those found in the longer- settled regions of the country; despite renewed outbreaks of vigilantism like that in San Francisco in 1856, lynch law and other extralegal activity was becoming a source of civic embarrassment rather than pride. John Frémont’s candidacy for president afforded California a legitimacy that would have been difficult to capture by other means, but it also elevated expectations that California would act like a normal state, with normal law and politics.
“Normal,” however, was an ambiguous term during the 1850s, with its meaning largely dependent on which part of the country one inhabited or came from. The South grew more aggressive in its defense of slavery, the North less willing to indulge southern sensitivities. In California, a kind of expatriate politics developed, reflecting the rift in the East. The expatriatism had been implicit since the start of the Gold Rush, but in the early days—for example, at the Monterey convention of 1849—both northerners and southerners had been too distracted by gold to make a big issue of their differing views on slavery and race. As the opportunities in the mines diminished, though—and as the rancor between North and South escalated—California became a battleground over slavery.
Southern Democrats had actually landed the first blow, during the inaugural session of the California legislature. The Monterey constitution barred slavery, but the Democrats won passage of a bill declaring that “no black or mulatto person or Indian shall be permitted to give evidence in favor of or against any white person.” This law left African-Americans (and Indians) at the mercy of white-controlled courts, and of white petitioners in those courts.
California’s blacks, who constituted between 1 and 2 percent of the state’s population during the 1850s, combated this legal discrimination. They repeatedly petitioned the legislature for relief; when their petitions failed, they organized statewide “colored conventions” to publicize the unfairness of their predicament. More than a few whites supported the cause—some from altruism, others from self-interest. The
Sacramento Bee
came out for colored testimony following the 1857 lynching of three white men in Butte County. The lynched were infamous for robbing and abusing Chinese miners, but because the Chinese (who were legally lumped with blacks and Indians) couldn’t testify against their tormentors, the thugs ran free. Eventually even whites in the area grew disgusted and hanged the trio. To the
Sacramento Bee
this represented a step backward toward vigilante justice. In the interest of public welfare and due process, the paper’s editor declared, colored testimony must be allowed.
The courtroom color bar might have been lifted but for the demoralizing outcome of the
Dred Scott
Supreme Court case. When Chief Justice Roger Taney and the federal high court ruled in 1857 that African- Americans could not be citizens of the United States, the ruling dealt a nationwide blow to hopes for anything approaching black equality. In California it spurred African-Americans to further political and legal efforts. In October 1857 they held another colored convention in San Francisco; more than ever, the delegates deemed their battle the battle of colored people all across the country.
Their battle was also the battle of one black man in particular. Archy Lee was a native of Mississippi, a slave by birth. He came to California in company with a white man named Charles Stovall, whose family had owned Archy (who, like many slaves, went by a single name, only adding
Lee later) in Mississippi. Whether Charles Stovall still owned Archy lay at the heart of one of the more convoluted cases in the history of California jurisprudence.
Archy and Stovall arrived in California in the autumn of 1857. Whether the two had departed Mississippi together or rendezvoused in Missouri after leaving Mississippi separately became a matter of conflicting testimony. Stovall’s reason for going west was to improve his health. Archy’s reason was either to be Stovall’s servant or to flee the wrath of a white man he had wounded in a fight in Mississippi. (The white man definitely had been wounded, and by Archy; the question was whether Archy credibly feared retribution.) In any event, the two young men reached Sacramento in October 1857.
By Stovall’s subsequent account, he intended to stay no more than a year or eighteen months, until his health was restored. This became an issue of central importance, for although California barred slave ownership to permanent residents of the state, like several other states it allowed travelers and visitors to retain their slaves during brief stopovers. Unfortunately for Stovall’s story, he hadn’t been in Sacramento long before he put a notice in a local paper advertising: “Private School for Boys and Girls… Terms—$5 per month, in advance.” It is uncertain how many pupils accepted his offer, but the notice alone suggested something more than a rest-and-recuperation visit. Meanwhile, Stovall hired Archy out to other employers, taking part of the wages and allowing Archy to keep the remainder.
However long Stovall intended to stay, he decided after two months to send Archy back to Mississippi. Conceivably, Stovall hadn’t realized before coming that California barred slavery; he seems to have been a rather oblivious young man. Perhaps he knew about the bar but simply proposed to ignore it; slave-owners in those last years before the Civil War were notorious for what they thought they could get away with. Moreover, despite the antislavery article in California’s constitution, the state’s pro-South Democrats might be inclined to wink at Stovall’s possession of Archy. But by the end of 1857, Stovall was worrying that he wouldn’t be able to keep Archy in California. In Mississippi a slave of Archy’s age, sex, and robust
condition might sell for $1,500; Stovall didn’t wish to forfeit such an investment. So he prepared to send Archy to San Francisco to meet a man traveling back to Mississippi, who would escort Archy home.
But Archy didn’t want to go home. Not surprisingly, he at first was even less aware than Stovall of the status of slavery under California law; equally unsurprisingly, Stovall declined to share what he learned that might make Archy think he need no longer be a slave. The presence, and activism, of free blacks in California, however, opened Archy’s eyes. And as luck would have it, the agitation for black rights after the Dred Scott decision peaked at precisely the moment Archy was to leave Sacramento for San Francisco, Panama, and Mississippi. Some of those engaged in the struggle in California had worked on the Underground Railroad back east, and they saw in Archy a young man who ought not be spirited from the land of the free to the home of the slave. One suggested that Archy take refuge at Hackett House, a rooming establishment run by Negroes in Sacramento. Archy did so, only to be arrested by local authorities serving a warrant initiated by Stovall to have his property—that is, Archy—returned.
Archy thereupon entered the California court system. Charles Parker, a proprietor of Hackett House, arranged for a writ of habeas corpus to have Archy released from jail on grounds that he was being illegally detained. The same laws that prevented blacks from testifying in California prevented their practicing law in the state, and so when the case came before County Judge Robert Robinson, a white attorney named Edwin Crocker led the team representing Archy. Crocker was a prominent antislavery advocate whose defense of radical causes had made him a national celebrity. Stovall’s lawyer, James Hardy, was an ardent pro-slavery man (who, as a California judge during the Civil War, would be impeached for Confederate sympathies).
Archy seems to have been nonplussed by the situation in which he found himself. When Judge Robinson inquired whether he really wanted to be free, he was too frightened and confused to answer. Or perhaps he simply desired to let the more eloquent Crocker speak for him. Crocker
did, contending that the law in the matter was clear. California did not countenance slavery; therefore Archy could not be a slave under California law. As for federal law (though this was a state court), the sole statute that possibly applied was the Fugitive Slave Act of 1850, but that measure dealt only with slaves fleeing bondage in one state and arriving in another state. Archy had not fled bondage in Mississippi (although he may have fled trouble there, with the man he had wounded; this was where the question of his motive for leaving arose. One version of the story had Archy’s Sacramento jailer asking him if white Mississippians didn’t kill Negroes who attacked white men, and Archy replying, “Why, Lord bless your soul, master, I didn’t give’em a chance!”). Consequently, Crocker asserted, the federal law did not apply, and Archy must be released.
Stovall’s lawyer, Hardy, countered that Archy was Stovall’s slave under Mississippi law, and that according to basic principles of comity and the full-faith-and-credit clause of the federal Constitution, California must honor that law. Had Stovall relocated permanently to California, the situation might have been different, but as he was simply a visitor, Archy remained his slave.
Judge Robinson weighed the arguments about Archy at some length; while he did, Hardy decided to take Stovall’s case to the federal commissioner in California charged with enforcing the Fugitive Slave Act. A southerner himself, Commissioner George Johnston was thought to be sympathetic to Stovall’s side of the argument. Johnston heard Hardy out and pondered the matter for several days, but decided he didn’t have jurisdiction. By all evidence, Archy had not commenced his bid for freedom until after reaching California; his flight, such as it was, had not carried him across state lines and consequently had not carried him into the federal system.
Shortly thereafter Judge Robinson rendered his verdict. The Sacramento courtroom was crowded with African-Americans anxious for Archy—and for themselves, in that the verdict in Archy’s case promised, or threatened, to be a bellwether for the black community. Again Archy was asked if he wanted to be free; this time he responded forthrightly, “I
don’t
want to go back to Mississippi.” Archy’s fellow blacks burst into cheers when Robinson declared that Archy did not have to go back; he was free.
B
UT THE CHEERS
gave way to groans almost at once. No sooner had the county bailiff released Archy than a state sheriff rearrested him. Stovall’s side, hedging against failure in Robinson’s court, had applied to the California Supreme Court for a hearing. The high court consisted of three justices, two of whom were outspokenly antiblack. One of these, Chief Justice David Terry—the knife fighter from San Francisco—agreed to issue the writ Stovall desired, elevating Archy’s case to the state supreme court. Till that court convened, Archy remained in jail.
Archy had a new lawyer by the time the supreme court heard the case. For reasons lost to history, Edwin Crocker stepped aside in favor of Joseph Winans, another strong antislavery man and an attorney well versed in fugitive slave cases. James Hardy still spoke for Stovall.
Hardy held that the clause in the California constitution banning slavery required a positive legislative enactment, specifying penalties and the like, to become operative; because the legislature had not so acted, the prohibiting clause had no practical effect. Anyway, Stovall, as a citizen of Mississippi merely visiting California, ought to have security in his property, including Archy. California’s ban on slavery did not apply to him.