A People's History of the Supreme Court

by Peter Irons

  The emergence in the 1830s of William Lloyd Garrison as the uncompromising leader of the “immediatist” abolitionists sent shudders of fear throughout the South. Garrison published the first issue of his newspaper, The Liberator, on New Year’s Day of 1831. He denounced slavery as a “monstrous evil” and vowed a campaign against it that did not exclude lawbreaking and violence. Later that year, the South’s leading defender of slavery, John C. Calhoun, who then served as vice president under Andrew Jackson, proclaimed, “Abolition and the Union cannot coexist.” The extremists on both sides were headed on a collision course. Several of the southern states, led by Virginia, passed laws making the advocacy of abolition a felony with severe penalties. Vigilante groups hunted out abolitionists and punished them with whippings. By 1837, not one antislavery group remained in the South. North of the Mason-Dixon line, abolitionists “rescued” fugitive slaves and on occasion assaulted and even murdered slave-catchers. The battle lines were drawn, and both sides were prepared to use force to accomplish their goals.

  The first case that raised the slavery issue before the Supreme Court had all the drama of a Hollywood movie, which it later became (with scant regard for historical accuracy, particularly in its lengthy courtroom scenes). In June 1839 the Spanish schooner Amistad set sail from Havana, bound for the Cuban port of Principe. Its cargo included fifty-four Africans, captured in their native land of Mende by Portuguese slavers and taken to Cuba to be sold into slavery. But the Amistad never reached Principe. Led by a Mende headman named Cinque, the Africans revolted, killing the ship’s captain and one of the crew (two others escaped). Cinque spared the lives of two crewmen, Pedro Montez and José Ruiz, on their promise to sail the ship back to Africa. For the next two months, Montez and Ruiz played a stealthy game, steering the Amistad to the east during daylight and then shifting course to the west and north under cover of darkness. The Spaniards hoped to reach a slave state in America, where they could seek official protection and return their cargo to Cuba. But the winds did not cooperate, and the Amistad finally reached land off Montauk Point in Long Island Sound, between New York and Connecticut. By this time, the Amistad was out of food and water and fifteen of the Africans had died of starvation and exposure.

  Lieutenant Thomas Gedney of the navy brig Washington, Which was surveying the sound, boarded the ship and was greeted by Montez and Ruiz, relieved to be rescued from Cinque and his mutinous tribesmen. Lieutenant Gedney towed the Amistad into the port of New London, Connecticut, where the ship and its human cargo soon became pawns in a four-way contest over their fate. After the Spaniards told their story to local officials, the Africans were jailed and charged with murder, mutiny, and piracy. None of the Africans spoke either Spanish or English, and no one in New London could communicate with them. Montez and Ruiz promptly filed claims in federal court for the return of the Amistad and the Africans, who they said were lawfully enslaved under Spanish law. Lieutenant Gedney filed a salvage claim, as did two American ship captains who had met some of the Africans on shore, where they pleaded for food and water with sign language. The administration of President Martin Van Buren tried its best to appease the Spanish government, despite the lack of evidence—except the claims of Montez and Ruiz—that the Africans on the Amistad had been lawfully enslaved and were therefore “property” of the Spaniards. Spanish law, in fact, prohibited the slave trade in its possessions. Nonetheless, the federal government also filed a claim, asking the court to return the Amistad and the Africans to Ruiz and Montez “in pursuance of the treaty between the United States and Spain.”

  With the Africans held in prison for trial on murder charges, abolitionists mounted a campaign for their release. Roger Baldwin, a New Haven lawyer and later Connecticut’s governor and senator, undertook their legal defense, while Lewis Tappan, a wealthy New Yorker, raised funds and organized public support for the “Amistads,” as they became known. The various claims finally came before a federal district judge, Andrew Judson, who ruled that because slavery did not exist in Connecticut, the Amistads were free men. He also dismissed the criminal charges, since none of the alleged crimes had taken place within American waters. But Judson nonetheless ordered the Amistads held in custody until a later hearing on the federal government’s claim. By this time, a British sailor and former slave who spoke the Mende language had been found, and the African’s story of their kidnapping and desperate measures to liberate them selves was widely reported.

  The Amistad case became a national and international issue. Many northerners, previously lukewarm toward the abolitionist movement, agitated for the release of the Amistads. The Spanish government insisted on the return of the Africans to Cuba, and the Van Buren administration supported their claim. After hearing argument from all the claimants, judge Judson finally ruled in 1840 that they should be returned by the Federal government to their homeland. Referring to Cinque and his fellows, Judson wrote that they “shall not sigh for Africa in vain. Bloody as may be their hands, they shall embrace their kindred.”

  The federal government appealed Judson’s ruling to the Supreme Court, where the case was argued for eight days in February 1841. The legal issues related primarily to international law, but the arguments in the Amistad case provided abolitionists a chance to expose the horrors of the African slave trade and to denounce the complicity of the Van Buren administration. Roger Baldwin was joined in the Supreme Court by John Quincy Adams, who had returned to public office after his presidential term ended in 1829, serving in Congress as a representative from Massachusetts until his death in 1848.

  Baldwin focused on issues of international law, while Adams spent three days at the podium, bitterly denouncing slavery and the government’s refusal to abide by Judson’s ruling. Adams had a notoriously bad temper, and before the argument he wrote in his diary, “I implore the mercy of God so to control my temper, and to give me utterance, that I may prove myself in every respect equal to the task.” But his plea was not answered. Justice Joseph Story later wrote that Adams’s argument was “extraordinary . . . for its power and its bitter sarcasm, and its dealing with topics far beyond the record and points of discussion.” Adams voiced his contempt for President Van Buren, who he said would “turn himself into a jailer” for the Spanish government. Attorney General Gilpin responded that Van Buren was bound by a treaty with Spain to return all ships and property seized by “pirates or robbers” on the high seas. Adams replied with scorn, asking “who were the pirates and robbers? Were they the Africans?” Cinque and his fellows had been kidnapped by the Spaniards, Adams said, and were entitled to free themselves by any means, including force.

  To the surprise of many, the Supreme Court upheld Judson’s ruling in 1841. Only one justice, the irascible and unpredictable Henry Baldwin, dissented from Justice Joseph Story’s opinion, although Baldwin did not explain his grounds. Story picked a careful path through the thickets of international law. He wrote that if the Amistads had been lawfully held in slavery, they would be “items of merchandise” and property of the Spaniards, returnable under the treaty with Spain. But, he concluded, “They are natives of Africa, and were kidnapped there, and were unlawfully transported to Cuba, in violation of the laws and treaties of Spain.” Story ruled that the Amistads “are entitled to their freedom,” and they were eventually returned to their homeland, educated in English and converted to Christianity.

  Abolitionists celebrated the Court’s decision in the Amistad case, but its ruling that the Africans had never been enslaved did not help the campaign against slavery in the United States. The next year, Justice Story again displayed his skill at navigating through shifting legal currents in at case that tested the Fugitive Slave Act of 1793. Although less dramatic than the mutiny of the Amistads, the plight of Margaret Morgan also captured public attention. She had escaped from slavery in Maryland, fleeing with her children to Pennsylvania. In 1837, a professional slave catcher named Edward Prigg tracked her down, seized her a
nd children, and brought them before a state judge, seeking the certificate required by the federa law to return his captive to slavery.

  But the Pennsylvania legislature had also passed a “personal liberty” statute in 1826, which imposed greater burdens of proof on slave-catchers and gave fugitives the right to challenge their captivity. The state judge refused to issue Prigg the removal certificate, but he took Margaret Morgan and her children back to Maryland anyway, returning them to Margaret Ashmore, who paid him for returning her human "property.” Prigg was later indicted in Pennsylvania for kidnapping, tried and convicted in state court, and released pending his appeal to the Supreme Court. The record suggests that officials of the two states colluded in this case, hoping to resolve the growing conflicts over enforcement of the Fugitive Slave Act. The abolitionist movement had lost support in Pennsylvania, and state officials did not defend their "personal liberty” law with much enthusiasm.

  During the Supreme Court arguments in Prigg v. Pennsylvannia,Maryland’s lawyers pointed to the Great Compromise in the Constitutional Convention to support their claim that the Framers intended Congress to have exclusive jurisdiction over the “rendition” of fugitive slaves to their masters. During the period of confederation, they argued, many northern states allowed no aid "to the owners of fugitive slaves; and sometimes, indeed, they met with open resistance.” Faced with this situation, the Framers—and later the Congress—turned the whole issue over to federal authority.

  On their part, Pennsylvania’s lawyers put up a feeble defense. Responding to Maryland’s arguments that “slaves are not parties to the Constitution” and that “ ‘we, the people,’ does not embrace them,” they “adtmitted” these claims. Pennsylvania wanted only to protect its “freemen” from unlawful capture. The state’s lawyers spoke directly to Maryland. “Pennsylvania says: instead of preventing you from taking your slaves, we are anxious that you should have them; they are a population we do not covet; and all our legislation tends toward giving you every facility to get them; but we do claim the right of legislating upon this subject so as to bring you under legal restraint, which will prevent you from taking a freeman.” Pennsylvania did not claim that Margaret Morgan was free on her soil, only that Edward Prigg had not followed the rules for her capture under state law. If he had, the state would not have objected to her return to slavery in Maryland.

  As he had in the Amistad case, justice Story wrote for the Court in Prigg v. Pennsylvania. But he looked at Margaret Morgan through different lenses than he had at Cinque and his fellows. The Africans on the Amistad were not slaves, but Margaret and her children—the youngest born in a free state—were, he ruled. That fact really disposed of the case for Story. The Framers had recognized the lawfulness of slavery in the Constitution, and Congress thus had power to adopt the Fugitive Slave Act in 1793. Story praised the “courteous and friendly spirit” in which the neighboring states had brought the case before the Court, and hoped that “the agitation on this subject, in both states, would subside, and the conflict of opinion be put at rest.” But this was a vain hope, as the conflict over slavery that gripped the nation was mirrored in the Court. Seven justices wrote separate opinions, and Story’s caused the most conflict. Although he struck down Pennsylvania’s “Personal liberty” law, his opinion hinted that states were under no duty to aid the enforcement of the federal Fugitive Slave Act. This suggestion, which Story may not have intended, encouraged abolitionists and upset Chief Justice Taney, who argued in concurrence that states could—and should—pass laws that made it easier for slave-catchers to return their captives to slavery. Story had ruled that all state laws relating to fugitive slaves violated the Constitution, while Taney argued that only those that hindered the return of “property” to its owner stepped on federal toes.

  Whether intended or not, Story’s hint encouraged several northern states to pass laws that prohibited their officials from aiding slave-catchers in any way. Shortly after the Supreme Court decided the Prigg case, a fugitive slave named George Latimer was seized by police in Boston, acting for his Virginia owner, James Gray. Abolitionists filed a habeas corpus petition in state court to free Latimer, but the state’s chief judge, Lemuel Shaw, ruled that he was bound by the Prigg decision and ordered Latimer returned to Gray, who paid the Boston city jailer to keep him in custody. Crowds of abolitionists and free blacks tried and failed to “rescue” Latimer from jail, and the public uproar convinced Gray to give up; he “sold” Latimer to a group of abolitionists for $400, and they promptly freed him from both jail and slavery. Prompted by a petition with 65,000 signatures, the Massachusetts legislature passed the “Latimer Law,” prohibiting state judges and local police from taking any part in the rendition of fugitive slaves.

  Contrary to Story’s hopes, his Prigg decision did not end the sectional conflict over slavery. In fact, passage of the Latimer Law and similar state laws enraged southern defenders of Slavery, who pressed Congress to enact a more stringent fugitive slave law. They succeeded in 1850, when Henry Clay—thirty years after he pushed the Missouri Compromise through Congress—traded the admission of California to the Union as a free state for a new and tougher fugitive slave law. The Compromise of 1850, as it became known, was as doomed to failure as its predecessor. The nation moved closer to disunion as partisans on both sides moved from rhetoric to direct action. The election of Franklin, Pierce in 1852 returned the Democrats to the White House and gave the proslavery faction a political boost.

  The Pierce administration enforced the fugitive slave laws with a vengeance. The arrest of Anthony Burns in Boston in May 1854 prompted a massive abolitionist protest. Burns had escaped from slavery in Virginia and was seized by a federal marsha, who held him for his owner. When Burns was taken before a state judge for a rendition hearing, his owner’s lawyers argued that state courts were required to comply with the Fugitive Slave Act. After the judge ruled that the Latimer Law was in conflict with the federal statute, and ordered Burns’s rendition to Virginia, federal troops and the state militia trained a cannon on a crowd of twenty thousand who gathered on Boston Common to protest the decision. William Lloyd Garrison seized the moment with a dramatic gesture. Holding up a copy of the Constitution, he denounced it as “a covenant with death and an agreement with hell.” With those words, he put a torch to the Constitution and burned it to ashes. “So perish all compromises with tyranny!” he cried, echoed by the shouts of the assembled crowd.

  Neither side had any desire for compromise after 1850. Congressional passage of the Kansas-Nebraska Act in 1854, introduced by Democratic senator Stephen Douglas of Illinois, moved the conflicts from fiery wards to real flames. Douglas proposed and Congress adopted a law that put the slavery issue before the voters in the neighboring territories of Kansas and Nebraska. This proved a fatal decision, as “free-state” and proslavery groups took up arms and turned “Bleeding Kansas” into the first battleground of the Civil After a proslavery posse sacked and burned the town of Lawrence in 1855, killing several “free-staters” during the attack, a fanatical abolitionist named John Brown gathered his followers and murdered five proslavery settlers in Pottawatomie in retaliation. The “Pottawatomie Massacre” foreshadowed Brown’s doomed assault on the Harpers Ferry arsenal in West Virginia in 1859, his tragic response to the Supreme Court’s decision two years earlier in the Dred Scott case, the third of the slavery disputes that created increasing dissension among the justices and across the nation.

  Fifteen years before Dred Scott, the Prigg decision provoked a fierce battle over the Constitution. The Court’s divisions in the case gave both sides ammunition against their foes. Abolitionists took heart from Story’s hints that states could refuse to aid slave-catchers, while southern legislators relied on Taney’s opinion in pressing for more stringent federal laws. There is much irony in this reversal of roles: northerners adopted a states’ rights position and southerners asked for more federal power. Don Fehrenbacher, the lead
ing historian of the Dred Scott case, wrote in the 1970s that the Prigg decision “rivals Dred Scott . . . in historical importance.” A century earlier, Frederick Brightly, a noted lawyer who edited and annotated the Supreme Court’s opinions, wrote in 1885, that the Prigg decision “resulted in the passage of the fugitive slave law of 1850, the repeal of the Missouri compromise, and ultimately, the civil war and the entire abolition of slavery” in the United States. These historical judgments may give the Prigg case more influence than it deserves. But the capture of Margaret Morgan by Edward Prigg in 1837 and the Supreme Court’s decision in 1842 certainly contributed to the battles over slavery that ended in a bloody civil war.

  SECTION III

  “Justly and Lawfully Be Reduced to Slavery”

  13

  “A Small, Pleasant-Looking Negro”

  No individual litigant in American constitutional history has equaled the fame of Dred Scott, whose suit for freedom brought the slavery issue to a boil in the political cauldron of the 1850s. Every student of constitutional history knows Dred Scott by name, but hardly anyone knows anything about him beyond his name. Just who was the man whose Supreme Court case pushed the nation over the brink of sectional conflict and into the Civil War? This is not a trivial question. Every Supreme Court case that involves a claim of individual rights is brought by a real person, who has sought legal redress for some kind of oppression. American constitutional history is the history of real people with real grievances. Judges—who are also real people—do not always uphold these claims, but their decisions affect many lives: first, of the individuals who brought the case, and second, of those whose rights are determined by the Court’s ruling. We often learn more from the personal stories of these real people than from the impersonal pages of Supreme Court decisions.