Slaves and the Courts, 1740-1860, presents pamphlets and books documenting legal cases argued in courts in the United States and Great Britain on the issue of slavery. Included are accounts and analyses of cases and the court decisions for these cases, arguments from cases, and proceedings. Of special interest are copies of the slave code of the District of Columbia, material on the Dred Scott case, and material documenting the activities of John Brown, John Quincy Adams, and William Lloyd Garrison.
These online exhibits provide context and additional information about this collection.
These historical era(s) are best represented in the collection, although they may not be all-encompassing.
- The New Nation — 1780-1815
- Expansion and Reform — 1801-1861
- The Civil War and Reconstruction — 1850-1877
Related Collections and Exhibits
These collections and exhibits contain thematically-related primary and secondary sources. Browse the Collection Finder for more related material on the American Memory Web site.
- African-American Odyssey
- Born in Slavery: Slave Narratives from the Federal Writers' Project, 1936-1938
- Fredrick Douglass Papers at the Library of Congress
- From Slavery to Freedom: The African-American Pamphlet Collection, 1824-1909
Recommended additional sources of information.
Specific guidance for searching this collection.
Slaves and the Court, 1740-1860 includes approximately 100 documents (all published between 1772 and 1889) concerning legal issues confronted by African and African-American slaves as well as legislators, officers of the law, abolitionists, and slave-holders. Prominent among the documents are records of court cases, including arguments, testimony, judicial opinions, and analyses of cases and decisions. The collection covers some of the best-known cases of the era, such as the Anthony Burns, John Brown, and Dred Scott cases, but many lesser known cases are also presented. Among the prominent Americans whose words can be found in the collection are John Quincy Adams, Roger B. Taney, John C. Calhoun, Salmon P. Chase, William Garrison, and Francis Scott Key.
A large number of the cases deal with the Fugitive Slave Law and its enforcement; other topics include the ending of the slave trade, criminal prosecutions of slave-holders for mistreatment of slaves, regulating the expansion of slavery into the territories, and slave rebellions. The cases represented in the collection raise a panoply of fundamental constitutional issues—property rights, separation of powers, state’s rights, rule of law, natural law, the independent judiciary, freedom of speech, trial by jury, popular sovereignty, the meaning of citizenship, cruel and unusual punishment, and freedom of religion, among others. The collection is strongest in presenting material related to the 40 years preceding the onset of the Civil War.
On the collection’s home page, the Library of Congress reminds users that “These primary historical documents reflect the attitudes, perspectives, and beliefs of different times. The Library of Congress does not endorse the views expressed in these collections, which may contain materials offensive to some readers.” Teachers would do well to prepare students to deal with the documents’ depiction of these attitudes.
Depending on how teachers plan to use this collection, it may be helpful to create a chalkboard timeline of major events in the history of slavery in the United States. These events might include the following events and/or others of your own choosing. As students examine documents in the collection and learn more about the issues and events represented in the documents, they can add information to the timeline or simply refer to the timeline to provide a context for the documents.
A Few Selected Events in the History of Slavery in the United States
- 1501 — Spanish settlers bring first African slaves to the New World (Santo Domingo).
- 1562 — The British join the slave trade.
- 1581 — African slaves are brought to Florida by Spanish settlers in St. Augustine.
- 1619 — African slaves are brought to Jamestown.
- 1638 — New England slave trade begins.
- 1662 — Virginia law establishes that children of black mothers are slaves if their mothers are slaves, free if their mothers are free.
- 1712 — Slaves in New York City revolt; the revolt is put down by the militia.
- 1739 — Slaves in South Carolina revolt. Again, the revolt is put down by the militia.
- 1775 — First abolitionist society founded in Philadelphia.
- 1775-1783 — American Revolution.
- 1787 — Constitution is written.
- 1793 — First Fugitive Slave Act makes it a crime to interfere with efforts to capture runaway slaves.
- 1808 — United States bans the slave trade; smuggling continues.
- 1820 — Missouri Compromise forbids slavery in new territories north of latitude 36° 30’.
- 1822 — Denmark Vesey leads a slave revolt in Charleston.
- 1831 — Nat Turner leads a slave revolt in Virginia.
- 1850 — Compromise of 1850 establishes a Fugitive Slave Law giving greater power to federal authorities in exchange for admission of California to the union as a free state.
- 1854 — Kansas-Nebraska Act sets aside the Missouri Compromise and lets these two new territories decide whether they will allow slavery.
- 1857 — In the Dred Scott decision, the Supreme Court says that blacks cannot be citizens and that Congress has no power to outlaw slavery in any territory.
- 1861-1865 — Civil War.
- 1863 — President Lincoln issues the Emancipation Proclamation, freeing slaves in the Confederate States.
- 1865 — The 13th amendment to the Constitution abolishes slavery in the United States.
The Slave Trade
Several documents relevant to the early years of American history remind readers of the international nature of slavery and the slave trade. These documents include three that deal with a landmark 1772 British case that was cited in a number of later American cases. In this case, a British man bought a slave named Sommersett in Virginia and returned home to England, where Sommersett left the man’s service. The owner had Sommersett seized and put on a ship for sale in Jamaica. A writ of habeas corpus was sought to free Sommersett, and the British court ruled in his favor, stating that slavery was illegal in England. One document, “An Argument in the Case of James Sommersett,” presents the arguments on behalf of Sommersett; the second document, “Candid Reflections upon the Judgement Lately Awarded by the Court of King's Bench in Westminster-Hall,” presents arguments against the decision. The British were still debating the decision in 1787, as seen in the pro-slavery view printed in the London General Evening Post, “A Letter to Philo Africanus, upon Slavery.”
- What were the facts of the Sommersett case?
- What were the arguments in favor of freeing Sommersett?
- What arguments were made against freeing Sommersett?
- What decision was reached in the case?
- What was the significance of the decision for people beyond the direct participants in the case? (Hint: Try searching the collection using the keyword Sommersett for evidence of how the case was referred to in subsequent cases, including cases in the United States.)
Several British cases from the 18th century relate to crimes against slaves. Covered in two documents was a British case involving the murder of two female slaves on board the slave ship Recovery, a slave trader. One of the documents, as suggested by the title “The Trial of Captain John Kimber, for the Supposed Murder of an African girl,” takes a pro-Kimber view. The other, “The Trial of Captain John Kimber, for the Murder of Two Female Negro Slaves,” raises questions about Kimber’s defense, suggesting that “the whole crew might have conceived that the killing of a slave on board a ship was an offence not punishable by law.”
- Compare the two accounts of the trial. Where do they agree? Where do they disagree?
- Based on your assessment of the two accounts, create a timeline showing the events that occurred on board the Recovery.
- If you had been on the jury in the Kimber case, would you have voted for conviction or acquittal? Explain your answer.
While the United States outlawed the slave trade in 1808 and most European nations had, by treaty, banned the practice as of 1820, cases related to slave trading appeared throughout the period leading up to the Civil War, demonstrating that making the act illegal did not end it. In charging a grand jury in Boston in 1819, Justice Joseph Story talked at length about the continuation of the slave trade following its being made illegal. He said, in part:
Under such circumstances it might well be supposed that the Slave Trade would in practice be extinguished;--that virtuous men would by their abhorrence stay its polluted march, and wicked men would be overawed by its potent punishment. But unfortunately the case is far otherwise. We have but too many melancholy proofs from unquestionable sources, that it is still carried on with all the implacable ferocity and insatiable rapacity of former times. Avarice has grown more subtle in its evasions; and watches and seizes its prey with an appetite quickened rather than suppressed by its guilty vigils. American citizens are steeped up to their very mouths (I scarcely use too bold a figure) in this stream of iniquity -- They throng to the Coasts of Africa under the stained flags of Spain and Portugal, sometimes selling abroad "their cargoes of despair," and sometimes bringing them into some of our southern ports, and there under the forms of the law defeating the purposes of the law itself, and legalizing their inhuman but profitable adventures. I wish I could say that New England and New Englandmen were free from this deep pollution. But there is some reason to believe, that they who drive a loathsome traffic, "and buy the muscles and the bones of men," are to be found here also. It is to be hoped the number is small; but our cheeks may well burn with shame while a solitary case is permitted to go unpunished.
Read Justice Story’s entire commentary on the slave trade and consider the following questions:
- For what actions does Justice Story praise the United States and Great Britain? Which country appears to have done more to stop the slave trade? Why?
- Into what categories does Justice Story divide people taken into the slave trade? Do you think it matters into what category a slave fit? Why or why not?
- Describe the conditions in which the slaves traveled to the Americas.
- How does Justice Story draw on religion in making his case against the slave trade? Would a justice today make a similar argument? Why or why not?
- Justice Story used the word inhuman to describe the slave trade. If you had to describe the slave trade in one word, what word would you choose? Justify your choice.
Steven Spielberg’s film made people aware of one slave-trading case, that of the Amistad. The facts of the case are essentially this: in 1839, Portuguese slave hunters captured a group of Africans and sent them to Cuba, where they were bought by two Spanish planters who put them aboard the Amistad and set sail for their plantations in the Caribbean. The Africans killed the captain and cook and demanded that the planters sail to Africa. The Amistad was seized off New York; the planters were set free, and the Africans were initially charged with murder. The murder charges were dismissed, but the Africans remained in custody as the two planters, the Spanish government, and even the captain of the ship that brought the passengers of the Amistad to land tried to claim them. The case was further complicated by the Van Buren administration’s attempts to influence the judicial branch. Abolitionists rallied around the Africans’ cause. The case eventually reached the Supreme Court, which ruled that the Africans had been kidnapped and illegally sold as slaves; those who survived were returned to Africa. The collection contains the arguments of two lawyers for the Africans, Roger Baldwin and John Quincy Adams. As you read these arguments and learn more about the case, keep in mind that, as historian Eric Foner has pointed out(http://historymatters.gmu.edu/d/74/), “Rather than being receptive to abolitionist sentiment, the courts were among the main defenders of slavery.” Because this case dealt with the international slave trade, its ruling had no impact on the status of slaves in the United States.
Laws Regulating Slavery and Free Blacks
The collection contains a number of documents that provide insight into the kinds of laws that governed slaves and slave holding. A good way to begin exploring these laws is by examining the “Slave Code for the District of Columbia.” Although this written collection of the laws related to slavery in the District was not formally published until 1862 (see the special presentation entitled Slave Code for the District of Columbia for more background), the laws gathered there include the Maryland laws that applied prior to the formation of the district, as well as later laws passed specifically for the District. The manuscript version, which is believed to have been a “practice book” created by a law firm, also contains findings from Supreme Court cases related to slavery. The code also presents laws related to free blacks.
A section of the code such as the following makes real the fact that slaves were regarded as property rather than as people in a way that a mere statement of that fact might not. This section indicated that a person who killed a fugitive slave in an attempt to recapture him/her would not be prosecuted for a crime, but would have to reimburse the slave owner for the slave’s value.
Sec. 90. If any slave shall happen to be slain for refusing to surrender him or herself, contrary to law, or in unlawful resisting any officer, or other person, who shall apprehend or endeavor to apprehend such slave or slaves, and such officer, or other person, so killing such slave as aforesaid making resistance, shall be, and he is by this act, indemnified from any prosecution for such killing aforesaid; and that in every such case such slave or slaves shall be valued by two reputable persons, not being of kin to the master or owner of such slave, upon oath to be administered unto them, and to be appointed by the then nearest magistrate, "well and truly to value what such slave was worth, to the best of their knowledge, without favor or partiality," and that the whole value of such slave or slaves shall be certified by such persons to such magistrate, and that the same shall be paid to the ower or owners of such slave or slaves, or to his, her or their order, by the treasurer of the respective shore of this province on which the same death happened, upon a certificate from the said magistrate of the death and value of such slave or slaves, out of the public stock of this province in the hands of such treasurer, without fee or reward.
Work with a partner to examine closely a limited number of sections of the code, creating a poster that illustrates the meaning of the sections you studied. Collect information from the posters created by classmates.
- What rights did slaves have according to the slavery code?
- What rights and responsibilities did slave owners have?
- What restrictions were placed on free blacks?
- Based on your analysis of the slavery code, what was the intent of the laws that made up the slavery code? What beliefs are implicit in the laws?
Other documents can provide insight into how legislators sought to use the law to regulate free blacks. A South Carolina law allowed free blacks who were on ships that came into American ports to be put into jail while the ship remained in port; the captain of the ship had to pay the cost of the confinement; if he did not do so, he could be imprisoned and the free black seaman sold as a slave. The following quotation indicates the general tenor of the court’s opinion in striking down the law:
On the unconstitutionality of the law under which this man is confined, it is not too much to say that it will not bear argument; and I feel myself sanctioned in using this strong language, from considering the course of reasoning by which it has been defended. Neither of the gentlemen has attempted to prove that the power therein assumed by the state, can be exercised without clashing with the general powers of the United States to regulate commerce: but they have both strenuously contended, that ex necessitate it was a power which the state must and would exercise, and indeed Mr. Holmes concluded his argument with the declaration that if a dissolution of the union must be the alternative he was ready to meet it. Nor did the argument of Col. Hunt deviate at all from the same course. Giving it in the language of his own summary, it was this: South-Carolina was a sovereign state when she adopted the constitution--a sovereign state cannot surrender a right of vital importance--South-Carolina therefore either did not surrender this right, or still possesses the power to resume it--and whether it is necessary, or when it is necessary to resume it, she is herself the sovereign judge.
Interestingly, the attorney for the sheriff, Benjamin Faneuil Hunt, published his argument in the case after the judge’s decision was published, giving as his reason for publication the following:
But to understand the decission and do simple justice to the unsuccessful advocate, the case should be reported, or his arguments stated with at least as much plausibility as they were originally presented at the hearing; and, as in this instance, the honourable Judge, has thought proper to link my humble reputation with his own high name, by frequently naming me, I will venture to withdraw myself as far as possible form the effect of the comparison or rather contrast which so intimate a union with a superior will elicit, and by appearing alone before the public at least avoid the disadvantage. In short, I think my argument, by itself, will look much better than when its mangled parts are scattered through the opinion of the learned Judge: and the repeated requests to publish my argument have induced me to sumbit it to my fellow-citizens. My case was made for me I am responsible only for my argument.
Compare the two documents from which the quotes above were taken:
- Did Johnson "mangle" Hunt’s argument, as Hunt claimed? Explain your answer.
- Do you agree with Johnson’s decision? Give reasons to support your position on the constitutionality of the law.
- What events in Charleston might have made this case especially heated? (Hint: Search the collection using Charleston as a keyword.)
- Another reaction to events in Charleston is described in "Reflections, Occasioned by the Late Disturbances in Charleston," written by Thomas Pinckney under the pen name Achates). What are the strengths and weaknesses of Pinckney’s argument regarding replacing slaves with white workers?
Another example of a law regulating the lives of free blacks can be discovered in "Report of the Arguments of Counsel, in the Case of Prudence Crandall," who was accused of breaking a Connecticut law that forbade establishing a school that would educate free blacks who did not live in the state where the school was located. As a final example of ways in which law-makers attempted to control the lives of black Americans, consider "A Brief History of an Attempt During the Last Session of the Legislature, in 1841," which recounts the Mississippi legislature’s effort to void the will of a slaveholder who wanted his slaves to be sent to Liberia and his property sold to benefit them.
- What were the purposes of the laws related to the behavior of free blacks?
- What beliefs were implicit in these laws?
States' Rights and the Fugitive Slave Law
Slaves and the Court, 1740-1860 focuses strongly on issues related to states’ rights and the fugitive slave laws, a controversial issue from as early as 1793. The Northern states argued that the Fugitive Slave Law of 1793 was unconstitutional because it took away the states’ rights to legislate regarding fugitives from slavery; indeed, many of the Northern states passed "personal liberty" laws requiring trial by jury for blacks accused of being fugitive slaves and making the "recapture" of a fugitive slave a kidnapping offense. Southern states, on the other hand, argued that the Fugitive Slave Law was necessary to protect their property rights and that the law was "necessary and proper" to carry out the Constitution’s provisions regarding fugitives from labor. A number of cases and arguments relevant to these issues are presented in the collection.
An extensive accounting of the case that brought this issue before the Supreme Court in 1842 can be found in "Report of the Case of Edward Prigg against the Commonwealth of Pennsylvania." In that case, the Court held:
. . . we hold the power of legislation on this subject to be exclusive in Congress. To guard, however, against any possible misconstruction of our views, it is proper to state, that we are by no means to be understood in any manner whatsoever to doubt or to interfere with the police power belonging to the states in virtue of their general sovereignty. That police power extends over all subjects within the territorial limits of the states; and has never been conceded to the United States. It is wholly distinguishable from the right and duty secured by the provision now under consideration; which is exclusively derived from and secured by the Constitution of the United States, and owes its whole efficacy thereto. We entertain no doubt whatsoever, that the states, in virtue of their general police power, possess full jurisdiction to arrest and restrain runaway slaves, and remove them from their borders, and otherwise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vagabonds, and paupers. The rights of the owners of fugitive slaves are in no just sense interfered with, or regulated by such a course; and in many cases, the operations of this police power, although designed essentially for other purposes, for the protection, safety, and peace of the state, may essentially promote and aid the interests of the owners. But such regulations can never be permitted to interfere with or to obstruct the just rights of the owner to reclaim his slave, derived from the Constitution of the United States; or with the remedies prescribed by Congress to aid and enforce the same.
- What were the constitutional issues raised by this case?
- What arguments were made by the attorneys for Pennsylvania?
- What arguments were made by the attorneys for Edward Prigg?
- What was the Court’s reasoning in declaring the Pennsylvania law unconstitutional?
- Search the collection for documents related to other fugitive slave cases, looking for use of the same or additional arguments for each side of this debate. Using the key words fugitive slaves to search the collection will produce a considerable list of documents, both preceding and following the Prigg case. Take care to note the dates of the documents and consider how arguments changed following the Prigg decision.
In the decade before the Civil War, fugitive slave cases remained common, but were then tried under the new law passed in 1850. This law, which was part of a package of bills known as the Compromise of 1850, created a new office, "federal commissioner." Slave owners could bring an alleged fugitive before this commissioner to prove ownership. If the commissioner ruled in the owner’s favor, the owner paid the commissioner $10; if the commissioner ruled in the fugitive’s favor, the owner paid the commissioner $5. In addition, the law required federal marshals to help slave owners in their efforts to capture fugitives and allowed the marshals to force citizens to help them as well. The latter provision led to treason charges being brought against Northerners who refused to assist in capturing alleged fugitives, as in a Pennsylvania incident known as the Cristiana case. Several documents related to this case are contained in the collection and can be located by searching using the terms Cristiana and Castner Hanway (a defendant).
The case that revived public furor over the fugitive slave issue was that of Anthony Burns. Anthony Burns was a fugitive slave living in Boston in 1854. His Virginia owner learned where he was living and came to Massachusetts to capture him. After Burns’s arrest, groups of black and white abolitionists attempted to free him, causing a riot and killing a deputy in the process. U.S. troops were called in and, when the federal commissioner ruled in favor of the slave owner, Burns was accompanied by hundreds of federal troops as he was marched to the wharf for his return to Virginia. The streets were lined by thousands of Bostonians; a month later, on July 4, William Lloyd Garrison burned a copy of the Constitution. Several Northern states subsequently passed new laws to undercut the fugitive slave law of 1850. Several documents about this case are included in the collection and can be located by searching using the keyword Anthony Burns.
In an interesting follow-up to the Burns case, a number of citizens tried to have Edward Greely Loring, the federal commissioner in this case, removed from his position as a probate judge. The arguments in this case, which can be found in the documents "Argument of Wendell Phillips, esq." and "Remarks of Richard H. Dana, Jr. Esq.," raise several interesting issues that could serve as the starting point for a classroom debate. Two especially interesting questions are:
- Could overuse of the legislature’s impeachment power lead to an imbalance of power among the branches of government?
- Should women, who could not vote, be allowed to sign petitions for a judge’s removal, especially for a probate judge whose work directly affected them?
The collection contains a number of cases relating to abolitionists, including "The Constitution of the American Anti-Slavery Society" and the 1836 "Annual Report" of the Boston Female Anti-Slavery Society. One theme that emerges from these documents is the clear link between churches and the abolition movement. Yet it is also clear that not all churches or church-goers favored what was seen as a radical position. The Boston Female Anti-Slavery Society’s report includes, among other things, several outraged letters to the editor that appeared in the Boston Centinel and Gazette after an announcement of one of the Society’s meetings was read aloud in church. Also of interest in this document are hints of the women’s rights movement that would eventually emerge from abolitionism:
We sometimes, but not often, hear it said--'It is such an odd, unladylike thing to do.' We concede that the human soul, in the full exercise of its most God-like power of self-denial and exertion for the good of others, is, emphatically, a very unladylike thing. We have never heard this objection, but from that sort of a woman who is dead while she lives, or to be pitied as the victim of domestic tyranny. The woman who makes it, is generally one who has struggled from childhood up to womanhood, through a process of spiritual suffocation. Her infancy was passed in serving as a convenience for the display of elegant baby linen. Her youth, in training for a more public display of braiding the hair, and wearing of gold, and putting on of apparel; while 'the ornament of a meek and quiet spirit, the hidden man of the heart,' is not deemed worthy the attainment. Her summers fly away in changes of air and water; her winters in changes of flimsy garments, in inhaling lamp-smoke, and drinking champagne at midnight with the most dissipated men in the community. This is the woman who tells us it is unladylike to ask that children may no longer be sold away from their parents, or wives from their husbands, in the District of Columbia, and adds, 'they ought to be mobbed who ask it.' We present her the only argument she can comprehend — the fact that 80,000 of the noblest among the matronage of England, have annually entreated of their government, to do all in its power for the extinctions of slavery, till they prevailed.
Read the entire Annual Report of the Boston Female Anti-Slavery Society (you may want to divide the report among several people and then share information from what you have read) and consider the following questions:
- List as many of the Society’s activities as you can identify from the report. Into what categories did their activities fall? What were the purposes of the various categories of activities? Which activities do you think were most likely to be effective?
- According to the report, what was the relationship between abolitionist societies and churches? What actions did the abolitionists take to strengthen the involvement of churches in their work?
- How did people respond when an announcement of an abolitionist meeting was read at the Federal Street Society (a church)? How did the members of the Anti-Slavery Society respond? Do you agree with their position that "a word may sometimes be a deed"? Explain your answer.
- What was the Society’s view of women who thought abolitionism was "unladylike"? Based on this document, what predictions would you make about the future directions of the women involved in the Society?
Freedom of religion and freedom of speech emerged as legal and constitutional issues when ministers were charged with crimes as a result of their sermons. In a case in which future Chief Justice Roger Taney served as one of the attorneys for the defendant, Methodist Episcopal minister Jacob Gruber was charged with inciting a slave insurrection. Taney, in opening Gruber’s case, remarked:
No man can be prosecuted for preaching the articles of his religious creed; unless, indeed, his doctrine is immoral, and calculated to disturb the peace and order of society. And on subjects of national policy may, at all times, be freely and fully discussed in the pulpit, or elsewhere, without limitation or restraint. Therefore, the Reverend gentleman, whose cause I am now advocating, cannot be liable to prosecution in any form of proceeding, for the sermon mentioned by the District Attorney, unless his doctrines were immoral, and calculated to disturb the peace and order of society. The sermon, in itself, could in no other way be an offence against the laws. If his doctrines were not immoral, if the principles he maintained were not contrary to the peace and good order of society, he had an undoubted right to preach them, and to clothe them in such language, and to enforce them by such facts and arguments, as to him seemed proper. It would be nothing to the purpose, to say, that he offended or that he alarmed some, or all of his hearers. Their feelings, or their fears, would not alter the character of his doctrine, or take from him a right secured to him by the constitution and laws of the state.
Those who published in the abolitionist cause were also subject to prosecution, as in the case of William Lloyd Garrison. Garrison was charged with libel for publishing an article criticizing two people for engaging in domestic slave trading. At his trial, described in "A Brief Sketch of the Trial of William Lloyd Garrison," his lawyer declared "the law of libel a drain through which had circulated every thing that was putrid, vile, and unseemly. It was the last and most successful engine of tyranny; and had done more to perpetuate public abuses, and to check the march of reform, than any other agent."
One of the more infamous cases involving attempts to keep editors from publishing anti-slavery material arose in Alton, Illinois. Editor and minister Elijah P. Lovejoy had relocated to Alton from St. Louis, where he had been persecuted for what were perceived to be abolitionist leanings. In Alton, several presses were destroyed by pro-slavery residents. On the night of November 7, 1837, word got around that a group would be attempting to destroy the latest press, kept in a warehouse owned by a man named Godfrey Gilman. Gilman and others decided to defend the press.
A riot resulted, Reverend Lovejoy was killed, and men on both sides were indicted for crimes. The collection contains two accounts of these events. “Alton Trials” presents accounts of the trials made from notes taken by a local attorney at the trials of both groups of men. “History of the Rise and Progress of the Alton Riots” was written many years after the fact by one of the men who defended the press.
- How do the two accounts differ? On what facts do they agree?
- Which source is more informative?
- Which source is more reliable? Why?
Abolitionists' reports on their activities raise issues related to civil disobedience. Daniel Drayton, who helped slaves escape by taking them north in his boat, commented on the importance of both words and actions:
The satisfaction that I have is this: What I did, and what I attempted to do, was my protest, — a protest which resounded from one end of the Union to the other, and which, I hope, by the dissemination of this, my narrative, to renew and repeat it, — it was my protest against the infamous and atrocious doctrine that there can be any such thing as property in man! We can only do according to our power, and the capacity, gifts and talents, that we have. Others, more fortunate than I, may record their protest against this wicked doctrine more safely and comfortably for themselves than I did. They may embody it in burning words and eloquent speeches; they may write it out in books; they may preach it in sermons. I could not do that. I have as many thoughts as another, but, for want of education, I lack the power to express them in speech or writing… If I had believed, as the slave-holders do, that men can be owned; if I had really attempted, as they falsely and meanly charged me with doing, to steal; had I actually sought to appropriate men as property to my own use; had that been all, does anybody imagine that I should ever have been pursued with such persevering enmity and personal virulence? Do they get up a debate in Congress, and a riot in the city of Washington, every time a theft is committed or attempted in the District? It was purely because I was not a thief; because, in helping men, women and children, claimed as chattels, to escape, I bore my testimony against robbing human beings of their liberty; this was the very thing that excited the slave-holders against me, just as a strong anti-slavery speech excites them against Mr. Hale, or Mr. Giddings, or Mr. Mann, or Mr. Sumner. Those gentlemen have words at command; they can speak, and can do good service by doing so. As for me, it was impossible that I should ever be able to make myself heard in Congress, or by the nation at large, except in the way of action. The opportunity occurring, I did not hesitate to improve it; nor have I ever yet seen occasion to regret having done so.
(Pages 121-122, "Personal Memoir of Daniel Drayton")
- Why did Daniel Drayton decide to take action? What does he compare his actions to?
- Drayton argued that slave-holders were angry about his actions because they knew he was not a thief, but someone acting against slavery because of deeply held beliefs. Do you think this argument is logical? Why or why not?
- Drayton said that his actions were like a speech, while the Boston Female Anti-Slavery Society said words were like actions. Are both words and actions needed to change laws and traditions? Think of other examples from history that would support your position.
The Dred Scott Case
The most important legal case of the period was the Dred Scott case, which according to Supreme Court historian Bernard Schwartz was a "major factor in precipitating the political polarization of the nation" (A History of the Supreme Court, New York: Oxford University Press, 1993). Dred Scott was a slave who was taken by his master, a military surgeon, to posts in the free state of Illinois and the Wisconsin Territory, which was free as a result of the Missouri Compromise passed by Congress in 1830. Scott lived for 12 years in Illinois and Wisconsin. In 1842, he returned to St. Louis with his master, who died in 1843. In 1846, Scott sued his master’s widow for freedom based on his years spent in free territories. The case was not resolved until 1857, when the Supreme Court ruled against Scott, holding that blacks could not be citizens, that the Missouri Compromise was unconstitutional because Congress had violated citizens’ property rights and substantive due process rights in banning slavery from the territories, and that Missouri law was the ruling law in the case.
The decision caused an uproar: slaveholders greeted it with enthusiasm and abolitionists reacted with horror. A Dr. J.H. Van Evrie responded to the decision with the following words:
This opinion of Chief Justice Taney and those of his eminent colleagues of the Supreme Court of the Republic, is an epoch in our civil history, which is doubtless destined in all future time to be a land mark in American civilization…
The doctrine of 1776, that all (white) men "are created free and equal," is universally accepted and made the basis of all our institutions, State and National, and the relations of citizenship — the rights of the individual — in short, the status of the dominant race, is thus defined and fixed for ever.
But there have been doubts and uncertainties in regard to the negro. Indeed, many (perhaps most) American communities have latterly sought to include him in the ranks of citizenship, and force upon him the status of the superior race.
This confusion is now at an end, and the Supreme Court, in the Dred Scott decision, has defined the relations, and fixed the status of the subordinate race forever — for that decision is in accord with the natural relations of the races, and therefore can never perish. It is based on historical and existing facts, which are indisputable, and it is a necessary, indeed unavoidable inference, from these facts.
In contrast, Samuel A. Foot suggested that a reorganization of the Supreme Court might be necessary to prevent the Southern majority from essentially creating a new Constitution for the nation:
If these opinions are clothed with judicial authority, and for that reason are the law of the land, we cannot fail to see, that they give the country a new constitution, and a new system of law, on the subject of slavery and the government of our territories, and widely different from those given us by our fathers, and under which we have hitherto lived. But if they are extra judicial, mere "obiter dicta," and have no judicial authority, then a most serious question arises for the decision of the country, and upon which every citizen should be prepared to form an enlightened judgment; and that question is, what constitutional and lawful action can be taken, to prevent these opinions from being engrafted on our Constitution and laws by judicial legislation. Should the Supreme Court of the United States remain organized as at present, with only nine judges, and five of them citizens of the slave states, there can scarcely remain a doubt but that, as cases arise, they will be decided in accordance with these opinions. Congress has power to reorganize that court; and the question is, Shall that be done, so as to give the free states a fair representation in that tribunal? In favor of this measure, it is said, that the slave states have less than half the number of free white people, and less than one-third of the amount of litigation, which the free states have; and that it is, consequently, just and proper, that the Court should be so organized, as to give each portion of the Union an equal and fair proportion of the judges. On the other hand, it is said, re-organization of the Court would be a harsh and dangerous measure. Each citizen must decide for himself which is the greater evil, to re-organize the Court, or allow these opinions to become parts of our constitution and laws, and give us a new constitutional and legal system on the subject of slavery and our territories.
(Pages 18 and 19, "An Examination of the Case of Dred Scott Against Sandford")
Several documents on the case can be found in the collection by searching using the keyword Dred Scott. Small groups of students might be assigned particular documents to analyze and report on to the class. Students could also dig deeper by searching for earlier documents that present views of the Chief Justice, Roger B. Taney. Questions that could guide the class' inquiry are:
- What were the facts of the case?
- What were the major issues in the case?
- What arguments were made by Scott’s attorneys?
- What arguments were made by Sandford’s attorneys?
- What decision was reached in the case? What reasoning did the Court use in making its decision? What values and perspectives are embodied in the decision? Do earlier writings by Chief Justice Taney shed light on the decision?
- Was there a dissenting opinion in the case? If so, how did it differ from the majority opinion?
- How did various groups of people respond to the decision?
- What was the decision’s impact on the nation?
Also note that the Supreme Court Historical Society presents excellent teaching materials on the case at http://www.landmarkcases.org/dredscott/home.html.
Chronological Thinking: Periodization
As suggested in the U.S. history section of this Collection Connection, a timeline of events related to slavery in the United States would be a useful tool in setting the context for examining the Slaves and the Courts, 1740-1860 collection. Events could be added to the timeline as documents from the collection are analyzed. Such an activity supports the development of basic chronological thinking and could also serve as the basis for a more sophisticated exercise involving periodization.
Periodization in U.S. history is generally based on criteria related to the overall development of the nation. Yet alternative periodizations are certainly possible. Create periods in U.S. history for the years from 1492 to 1877, using developments in the history of slavery as the overall organizer. For example, one period might be "The End of Northern Slavery, 1777-1827." For each period created, prepare an explanation of what distinguishes that period from others.
Historical Comprehension: Case Study Method
The ability to use and understand legal documents as historical sources can be enhanced using the case study method employed in legal education. When approaching any case in the collection, consider the following questions:
- What are the facts of the case?
- What are the most important questions at issue in the case?
- What arguments were made to clarify the issue?
- What decision was reached in the case?
- Did the case have an impact beyond its immediate participants? If so, what was it?
- What additional information might be needed to understand the significance of this episode in U.S. history?
After using the questions to analyze a number of legal cases, reflect on the strengths and weaknesses of legal documents in providing historical insights. What topics can be understood by using legal documents? What topics are not well represented in legal documents?
Historical Analysis and Interpretation: Differentiating Between Facts and Interpretations
One of the elements of historical analysis and interpretation, according to the National Standards for United States History, is to “differentiate between historical facts and historical interpretations, but acknowledge also that the two are related: that the facts the historian reports are selected and reflect therefore the historian's judgment of what is most significant about the past.” Practice with this skill could be provided using two of the collection's documents related to the John Brown case. "The Life, Trial, and Execution of Captain John Brown" provides a detailed account of the raid on Harper's Ferry, the trial of Brown, and his execution, as well as a number of primary sources (Brown's will and his last letter to his family). The second document is an account written in 1889, when the death of a key figure in the trial renewed interest in the case; this document, "Trial of John Brown," was written by General Marcus J. Wright specifically to refute the claim by a German author that Brown's trial had not been fair and impartial.
- What facts in Wright's account can be verified in other sources?
- Why, given his purpose, did Wright select the facts that he did?
- What facts are available in other sources that might have undercut Wright's argument?
Historical Research: Identifying Missing Voices
As you use the Slaves and the Court collection, you may become aware that the voices of slaves are largely missing from the collection. Develop questions about perspectives missing from this particular collection. About the Collection and Related Resources provide numerous links to other resources about slavery; these two web pages can be starting points for your efforts to answer the questions you have posed about missing perspectives.
Historical Issues Analysis and Decision Making: Colonization in Liberia
The controversy over slavery resulted in numerous ideas of varying merit being put forth as solutions to the problem. The plan to colonize former slaves in Liberia is one such idea that could be researched using the collection. A number of documents about this topic can be located by searching using the keyword colonization. Use the documents in the collection to learn about the colonization plan and the arguments for and against it. Based on what you have read, imagine that you are an acquaintance of Francis Scott Key, a founder of the colonization society (but better known as the lyricist of The Star-Spangled Banner). Write a letter to Key explaining why you support or oppose colonization of former slaves in Liberia.
Historical Issues Analysis and Decision Making: Persisting Issues in History
A document dealing with slavery in the northern colonies, "The Trial and Execution for Petit Treason, of Mark and Phillis, Slaves of Capt. John Codman," demonstrates that some contemporary issues have been under debate for many years. The document is a paper written in 1883 about a 1755 Massachusetts case in which two slaves were executed for the murder of their owner. The executions were by hanging and burning, the latter of which shocked the sensibilities of the paper's 19th-century author, who discusses the death penalty at some length. Read the author's discussion (found near the end of the document) to identify arguments that foreshadow contemporary debates on this topic. For example, the author examines the death penalty's efficacy as a deterrent, providing a 1761 quotation from Massachusetts Governor Barnard (who believed the death penalty was a deterrent) and then refuting it by drawing on the British experience that "all who considered the subject thoughtfully found that the increase of capital crimes more than kept pace with the increase of laws creating them." For each argument for or against the death penalty provided in this document, try to find a quotation from a 21st-century advocate or opponent of the death penalty making the same point. What does this exercise tell you about the persisting nature of some issues?
Consider the qualities that make an issue persist over time, rather than one that is solved or simply fades away. List some qualities (an example might be the issue affects many people). Identify other issues that emerged from your analysis of documents in Slaves and the Courts, 1740-1860 (examples might be race relations and states’ rights). Which of these issues fit your list of qualities of persistent issues? Recognizing that some issues persist across time and space and comparing how people responded to the issues at different times and in different locations can help us better understand both the past and the present.
Arts & Humanities
Descriptive writing involves the careful selection of words to convey a very particular sense of a place, person, event, or idea. Descriptive writing can also be persuasive, in that the writer chooses words that will result in an emotional response from the reader (or listener). Such is the case in Justice Joseph Story's charge to the Boston grand jury in 1819. Below is part of his description of the Middle Passage.
When the number of slaves is completed, the ships begin what is called the middle passage, to transport the slaves to the colonies. — The height of the apartments in the ships is different according to the size of the vessel, and is from six feet to three feet, so that it is impossible to stand erect in most of the vessels, and in some scarcely to sit down in the same posture. If the vessel be full, their situation is truly deplorable. In the best regulated ships, a grown person is allowed but 16 inches in width, 32 inches in height, and five feet eleven inches in length, or to use the expressive language of a witness, not to so much room as a man has in his coffin. — They are indeed so crowded below that it is almost impossible to walk through the groupes without treading on some of them; and if they are reluctant to get into their places they are compelled by the lash of a whip. — And here their situation becomes wretched beyond description. The space between decks where they are confined often becomes so hot that persons who have visited them there have found their shirts so wetted with perspiration that water might be wrung from them; and the steam from their confined bodies comes up through the gratings like a furnace — The bad effects of such confinement and want of air are soon visible in the weakness and faintness which overcomes the unhappy victims. Some go down apparently well at night and are found dead in the morning. Some faint below and die from suffocation before they can be brought upon deck — As the slaves, whether well or ill, always lie upon bare planks, the motion of the ship rubs the flesh from the prominent parts of their body and leaves their bones almost bare. — The pestilential breath of so many in so confined a state renders them also very sickly and the vicissitudes of heat and cold gene rate a flux — when this is the case (which happens frequently) the whole place becomes covered with blood and mucus like a slaughter house; and as the slaves are fettered and wedged close together, the utmost disorder arises from endeavours to relieve themselves in the necessities of nature; and the disorder is still further increased by the healthy being not unfrequently chained to the diseased, the dying and the dead!!! When the scuttles in the ship's sides are shut in bad weather, the gratings are not sufficient for airing the room; and the slaves are then seen drawing their breath with all that anxious and laborious effort for life, which we observe in animals subjected to experiments in foul air or in the exhausted receiver of an air pump — Many of them expire in this situation crying out in their native tongue "we are dying." — During the time that elapses from the slaves being put on board on the African coast to their sale in the colonies about one fourth part, or twenty-five thousand per annum are destroyed — a mortality which may be easily credited after the preceding statement.
Follow these steps as you analyze the passage:
- Read the excerpt and identify the emotion that it produces.
- Reread the excerpt, highlighting words or phrases that are particularly effective in producing an emotional response.
- Choose a sentence in which you have highlighted words or phrases and rewrite it with less evocative words. What is the effect of the rewritten sentence?
- Choose something to describe in writing. Before you begin writing, identify what emotion you want to evoke in your reader. Choose your words carefully to bring out the emotion you have identified. When you have finished, try describing the same thing again, but this time trying to evoke a different emotion. For example, you might describe an old house trying to evoke fear in one description and sadness in the other.
Legal writing is by its nature persuasive. Thus, analyzing selected legal arguments in the collection would be a useful exercise. For example, you might analysis how lawyers use references to authoritative sources to bolster their arguments. Begin by analyzing excerpts from a particular argument; in the examples that follow, John Quincy Adams and Gerrit Smith refer to several different sources.
At an early period of my life it was my fortune to witness the representation upon the stage of one of the tragic masterpieces of the great Dramatist of England, or I may rather say of the great Dramatist of the world, and in that scene which exhibits in action the sudden, the instantaneous fall from unbounded power into irretrievable disgrace of Cardinal Wolsey, by the abrupt declaration of displeasure and dismission from the service of his King, made by that monarch in the presence of Lord Surry and of the Lord Chamberlain; at the moment of Wolsey's humiliation and distress, Surry gives vent to his long suppressed resentments for the insolence and injuries which he had endured from the fallen favorite while in power, and breaks out into insulting and bitter reproaches, till checked by the Chamberlain, who says:
"Oh! my Lords;
Press not a falling man too far: 'tis Virtue."
The repetition of that single line, in the relative position of the parties, struck me as a moral principle, and made upon my mind an impression which I have carried with me through all the changes of my life, and which I trust I shall carry with me to my grave… I know not how, in decent language, to speak of this assertion of the Secretary, that the minister of Her Catholic Majesty had claimed the Africans "as Spanish property." In Gulliver's novels, he is represented as traveling among a nation of beings, who were very rational in many things, although they were not exactly human, and they had a very cool way of using language in reference to deeds that are not laudable. When they wished to characterize a declaration as absolutely contrary to truth, they say the man has "said the thing that is not." It is not possible for me to express the truth respecting this averment of the Secretary of State, but by declaring that he "has said the thing that is not." This I shall endeavor to prove by showing what the demand of the Spanish minister was, and that it was a totally different thing from that which was represented…May it please your Honors—If the President of the United States had arbitrary and unqualified power, he could not satisfy these demands. He must keep them as a jailer; he must then send them beyond seas to be tried for their lives. I will not recur to the Declaration of Independence—your Honors have it implanted in your hearts—but one of the grievous charges brought against George III was, that he had made laws for sending men beyond seas for trial. That was one of the most odious of those acts of tyranny which occasioned the American revolution. The whole of the reasoning is not applicable to this case, but I submit to your Honors that, if the President has the power to do it in the case of Africans, and send them beyond seas for trial, he could do it by the same authority in the case of American citizens. By a simple order to the marshal of the district, he could just as well seize forty citizens of the United States, on the demand of a foreign minister, and send them beyond seas for trial before a foreign court.
(Pages 5, 12, 16 and 17, "Argument of John Quincy Adams, before the Supreme Court of the United States" )
What is a suit? It is the prosecution of a claim. The Supreme Court has so defined it.
In Cohens vs. Virginia, the court say:
"What is a suit? We understand it to be the prosecution, or pursuit of some claim, demand, or request. In law language, it is the prosecution of some demand in a court of justice. 'The remedy for every, species of wrong is,' says Judge Blackstone, 'the being put in possession of that right whereof the party injured is deprived." The instruments whereby this remedy is obtained, are a diversity of suits and actions, which are defined by the Mirror to be 'the lawful demand of one's right;' or, as Bracton and Fleta express it, in the words of Justinian, 'jus prosequendi in judicio quod alicui debetur,'—(the form of prosecuting in trial, or judgment, what is due to any one.) Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing claims to obtain something to which he has a right…But it may be said, that the enactors of this law intended to deny the jury trial to the black race only. Alas, what an outraged race it is! In the words of the prophet Isaiah, "This is a people robbed and spoiled. They are all of them shared in holes, and they are hid in prison houses. They are for a prey, and none delivereth; for a spoil, and none saith, restore."—Such, doubtless, was the intention. Indeed, had the intention been to deny it to the white race also,scarcely would the lives of the enactors have been safe from the fury of that haughty race. This distinction between one portion of the American people and the other, although a stupendous crime, at which all should stand aghast, is, nevertheless, acquiesced in, and approved. by this superlatively guilty nation.
(Pages 6, 7, and 8, "Abstract of the Argument on the Fugitive Slave Law, Made by Gerrit Smith")
Analyze Adams' and Smith's use of authoritative sources by answering the following questions:
- To what authoritative sources do these lawyers refer in making their arguments?
- How do these references further the arguments being made?
- Which references do you find most persuasive? Why?
- Select another court argument from Slaves and the Court and analyze the references to authoritative sources used in it. Are they effective? Why or why not?
William Lloyd Garrison was an abolitionist who was, in his own words, "freely branded as a madman and incendiary." He published the abolitionist newspaper, The Liberator, and spoke widely on slavery. When in jail for seven weeks following his arrest for libel, Garrison spent most of his time writing speeches he would deliver upon his release. He also, however, wrote sonnets, which are appended to "A Brief Sketch of the Trial of William Lloyd Garrison."
According to William Sharp, the British editor of an 1889 book, American Sonnets, the sonnet was a classic literary form that 19th-century Americans produced in large quantities. While Sharp found the quality of American sonnets to be inferior to British work, Sharp noted that "the motives of the Transatlantic poets are far oftener more wide, more strenuous — in a word, worthier. No wave of national sentiment but perturbs the waters of verse; no heroic impulse, no calamity, no great national thrill, that does not immediately find an echo in song."
- Read Garrison's sonnets and make some judgments about his motives in writing the poems. Was he seeking another outlet for his abolitionist views or did he have other motives in writing these poems?
- What advantages does the sonnet offer for conveying "heroic impulses" or "national thrills"? What disadvantages?
- Can you find any contemporary sonnets that suggest that express a current "wave of national sentiment" in the United States?
One of the most unusual items in Slaves and the Courts, 1740-1860 is a children's book, "A Picture of Slavery, for Youth," written by Jonathan Walker. Analyze this work, starting with the cover:
- What does the cover suggest about the book and its content?
- How is the cover similar to or different from covers of current nonfiction works for young people?
- Look at the way in which the content is presented—what techniques would seem to appeal to young people?
- What might you infer about young people’s reading in the 19th century based on this book?
- Use the Contributor Index to locate other works by the same author. How does the writer’s style in these works compare with the style he uses in the book for children?
As a follow-up to your analysis of the book, write a review of the book or write your own children’s book on slavery.
Use of pen names — names assumed to hide the true authorship of a written work — was common in the 18th and early 19th centuries. Consider the reasons why writers might use pen names. Possible reasons include because of custom, because they did not want the readers to be prejudiced by association of the author's name with the work (thereby allowing readers to focus on the arguments), because the use of a carefully selected pen name allows the author to convey an added layer of meaning, because the author fears retaliation for writing the work, because the author is ashamed of the work, to maintain privacy, etc.
Search the collection for a piece written under a pen name. There are at least two — one of which ("A Letter to Philo Africanus, upon Slavery") can be identified fairly quickly using the Contributor Index; the other ("Reflections, Occasioned by the Late Disturbances in Charleston") requires considerable effort, since the pen name is not used in the Author Index. What do the authors of these pieces hope to convey by their choice of names? (They chose names of Greek or Latin scholars and leaders or names that suggest those roots, implying the wisdom of these scholars or a link to the first democracy.)
Investigate whether pen names are used for political communication today. If so, how are they used? If not, why not? Interestingly, the right to publish political work anonymously was upheld in the Supreme Court as recently as 1995 (McIntyre v. Ohio Elections Commission, 514 U.S. 334, 356); the decision in the case, as well as Justice Thomas’s concurring opinion—both available at numerous legal sites on the Internet—contain interesting treatments of the use of pen names.
Irony and Humor
The tone of most of the documents in Slaves and the Court, 1740-1860, is intensely serious. Although this is not surprising given the subject matter, one attorney represented in the collection did choose to use humor in his presentation. H.S. Fitch, arguing for the prosecution in a fugitive slave case, mocks the opposing lawyers, defendants, and witnesses. Consider the following:
Gentlemen, the case has at length reached the jury. I congratulate you upon the fact. The somewhat supercilious air of superiority, and unnecessary confidence in his own ability, with which the learned counsel who opened for the defense announced that he would probably advance such legal objections as would prevent the ease from ever reaching its present stage, becomes, in view of the success which has attended his efforts, decidedly refreshing.
The learned counsel, (Mr. Arnold,) "apprehended" that we would fail in this point, and he "apprehended" we would fail in that point; and, in fact, he was tremulously apprehensive lest the entire prosecution should prove a failure. It doubtless afforded him pleasure to ascertain how unfounded were all his apprehensions.
Analyze Fitch's argument, using the following questions:
- How did Fitch use humor in his closing argument?
- Why might Fitch have chosen to mock his opponents?
- After a long trial, how would you react to this approach if you were serving on the jury? Might some people be offended by the use of humor in connection with a serious topic? Would they be justified?
- Rewrite portions of the argument to make the same points without using humor. Which approach do you prefer? Why?