Fugitive Slave Mentality

By ROBERT GOODING-WILLIAMS
March 27, 2012, 9:45 PM

http://opinionator.blogs.nytimes.com/2012/03/27/fugitive-slave-mentality/?scp=1&sq=gooding-williams&st=cse


Before he temporarily stepped down from his position last
week as chief of the Sanford, Fla., police department,
Bill Lee Jr., gave an explanation of his decision not to
arrest George Zimmerman for killing Trayvon Martin. Lee
said he had no reason to doubt Zimmerman's claim of
self-defense. Though Lee is no longer in the spotlight,
his words linger for at least one compelling reason: his
explanation bears an eerie resemblance to cases brought
under the Fugitive Slave Law during the Antebellum period.
Today, a legal standard that allowed the police chief to
take Zimmerman at his word recalls the dark past of
slave-owners claiming their property. The writings of
Martin Delany, the African American political philosopher
and activist, shed light on the uncanny resemblance.

During his trip through the free states west of New York
to solicit subscriptions for the North Star, the newspaper
that he and Frederick Douglass published, Martin Delany
regularly corresponded with Douglass.  One of his letters
to Douglass, dated July 14, 1848 (Bastille Day), details
the events of the so-called "Crosswhite affair," which
involved a court case brought under the Fugitive Slave Law
of 1793.  The presiding judge for the case was John
McClean, associate justice of the U.S. Supreme Court.
Delany's philosophical analysis of McClean's charge to the
jury is enlightening.  A little background may be helpful.

In 1843 Adam Crosswhite, his wife Sarah, and their four
children, after learning that their master Frank Giltner
intended to break up the family, fled Carroll County, Ky.,
where they lived as slaves.  After traveling through
Indiana and southwest Michigan, the family settled in
Marshall, Mich.,  where a fifth child was born, and where
close to 50 blacks, many of them escaped slaves from
Kentucky, already resided.  Only a few years had passed
when in 1847 Frank Giltner's son, David Giltner, and his
nephew, Francis Troutman, came to Marshall with two other
Kentuckians to arrest the Crosswhites and reclaim them as
Frank Giltner's property under the Fugitive Slave Law.
That law authorized slave owners residing in one state to
enter another state to recapture their property.

Soon a crowd of more than 200 people gathered at the
Crosswhite home, some of whom strongly supported
Michigan's status as a free state.  One man, Charles
Gorham, a local banker, protested Troutman's attempt to
seize the Crosswhites, after which Troutman was arrested,
tried, and fined $100 for trespassing.  In the meantime,
the Crosswhites were spirited out of Marshall and escaped
to Canada.

Delany's discussion of the Crosswhite affair came more
than a year later when he arrived in Detroit during a
trial (Giltner v. Gorham) in which suit was brought
against Gorham and other members of the Marshall crowd
concerning their role in hindering the arrest and abetting
the rescue of the Crosswhites.  Ultimately the jury was
hung and the case discharged, yet Delany dwells on it due
to what he considers to be the implications of McClean's
charge to the jury.  In particular, Delany responds to the
judge's elaboration of his charge in his reply "to an
interrogatory by one of the counsel for defense":

It is not necessary that the persons interfering should
know that the persons claimed are slaves.  If the claimant
has made the declaration that they are such, though he
should only assert it to the fugitives themselves --
indeed, it could not be expected that the claimant would
be required the trouble of repeating this to persons who
might be disposed to interfere -- should any one interfere
at all, after the declaration of the claimant, he is
liable and responsible to the provisions of the law in
such cases.

Delany's main point against McClean is that the fact that
the judge holds interfering persons to be criminally
accountable shows that he takes the 1793 Fugitive Slave
Law to carry the presumption that any individual, having
declared that one or another "colored" person is an
escaped slave (whom he is entitled to arrest), is simply
to be taken at his word, and so cannot legally be
interfered with in his effort to arrest that colored
person.  In conclusion, then, Delany reasons that the
Fugitive Slave Law reduces "each and all of us [that is,
each and all colored persons] to the mercy and discretion
of any white man in the country," and that under its
jurisdiction, "every colored man in the nominally free
states...is reduced to abject slavery; because all slavery
is but the arbitrary will of one person over another."

On Delany's account, the effect of the Fugitive Slave Law,
at least as Judge McClean interprets it, is to subject all
unowned black persons to the domination of all white
persons.  For by requiring that the self-proclaimed slave
catcher be taken at his word, the law leaves unconstrained
the ability of any white person to arrest and seize any
black person.  In effect, it renders all titularly free
blacks vulnerable to the power available to all whites in
exactly the way that, according to Frederick Douglass, a
black slave is vulnerable to the power exercised by his or
her white master.

The affinity to the Trayvon Martin incident is perhaps
obvious. Chief Lee's statement that Zimmerman was not
arrested for lack of evidence sufficient to challenge his
claim that he had not acted in self-defense ("We don't
have anything to dispute his claim of self-defense")
appears to imply that, absent such evidence, a white or
otherwise non-black man (there is some controversy as to
whether Zimmerman should be identified as white, or
Hispanic, or both, although no one seems to be claiming he
is black) claiming self-defense after killing a black man
is simply to be taken at his word.  It is hard to resist
the thought that race matters here, for who believes that,
had an adult African American male killed a white teenager
under similar circumstances, the police would have taken
him at his word and so declined to arrest him?

In contrast to Judge McClean, Lee does not propose that,
if a certain sort of declaration has been issued,
interference with a white man's attempt to seize a black
man would be illegal.  Rather he argues that, if a certain
sort of declaration has been issued -- "I acted from
self-defense"-- a white or other non-black person who has
admitted to killing a black person cannot legally be
arrested if the police have no reason to dispute the truth
of his declaration; or more technically, if in keeping
with sections 776.032 and 776.013 of the Florida Statues
the police have no "probable cause" to believe that
Zimmerman did not "reasonably believe" that killing Martin
was necessary "to prevent death or great bodily harm to
himself."  Though the two cases are different, we should
notice that Lee, like McClean, intends to highlight
considerations that legally constrain action (interference
in one case, arrest in the other ) in the face of an
assault on an African American. This should give us pause
to worry that Florida's Stand Your Ground legislation, in
its application to cases where whites (or other
non-blacks) kill blacks and then claim self-defense, could
prove to be the functional equivalent of a fugitive slave
law.

In short, it appears that whites (or other non-blacks) may
hunt down blacks with immunity from arrest so long as they
leave behind no clue that they were not acting to defend
themselves; or, to echo Martin Delany, that Florida's
Stand Your Ground law threatens to render some citizens
subject to the arbitrary wills of others.

If it seems a stretch, finally, to paint Zimmerman in the
image of the slave catchers of yesteryear, recall that he
himself invited the comparison when, while stalking the
African-American teenager against the advice of a 911
dispatcher, he complained, using an expletive to refer to
Trayvon, that they "always get away."

------
Robert Gooding-Williams is the Ralph and Mary Otis Isham
Professor of Political Science at the University of
Chicago. He is the author of "Look, A Negro!:
Philosophical Essays on Race, Culture, and Politics"
(Routledge, 2005) and "In The Shadow of Du Bois:
Afro-Modern Political Thought in America" (Harvard 2009).

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