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Function of Juries & History of Jury Nullification & Jurors Doing Justice & Jury Nullification | 17 Feb 2014

-Jury Nullification and the Rescue of Shadrach Minkins

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Flexing their rights in the 1850s.

Flexing their rights in the 1850s.

Now that we all know that fugitive slaves themselves were not freed by juries, but rather those who helped rescue them and were subsequently charged under the Fugitive Slave Act, let’s delve into the actual rescue of Shadrach Minkins.

The Fugitive Slave Act was a critical part of the Compromise of 1850, designed to maintain slavery in the United States while avoiding secession or civil war. Its draconian provisions were obviously skewed in favor of turning alleged fugitives over to those who claimed them as their property, with lax standards for “proving” ownership and strong incentives for northerners to assist in the capture and delivery of them to the claimants.

On February 15, 1851, Shadrach Minkins was kidnapped by federal agents from his workplace and taken to a courtroom where a claim of ownership under the Fugitive Slave Act would be heard. There, he was not afforded the benefits of trial by jury. Rather, the Fugitive Slave Act provided for claims for the return of alleged fugitives to be decided by a commissioner. From Section 4 of the Fugitive Slave Act of 1850:

And be it further enacted, That the commissioners above named shall have concurrent jurisdiction with the judges of the Circuit and District Courts of the United States, in their respective circuits and districts within the several States, and the judges of the Superior Courts of the Territories, severally and collectively, in term-time and vacation; shall grant certificates to such claimants, upon satisfactory proof being made, with authority to take and remove such fugitives from service or labor, under the restrictions herein contained, to the State or Territory from which such persons may have escaped or fled.

In the case of Shadrach Minkins, it was Judge Curtis who would make the determination of whether or not the claimant owned Shadrach Minkins. Legally speaking, Minkins’ lawyers did not have too many options. In his book Shadrach Minkins: From Fugitive Slave to Citizen, author Gary Collison tells us:

Getting a three-day postponement was a small victory for Minkins’ side, as it gave his attorneys time to plot the most effective defense. Their options, however, were extremely limited. The best chance for securing Minkins’ release, if he was actually the fugitive sought by DeBree, lay in questioning the authenticity of the documents and accuracy of the identifications presented in evidence against him. Minkins’ attorneys asked to examine the claimant’s documents, to which Seth Thomas finally agreed, insisting first on reading them aloud to the courtroom. Most pertained to John DeBree’s hearing before Judge Richard H. Baker, of the U.S. Circuit Court of Norfolk, when DeBree had offered evidence to certify Minkins’ purchase, identity, and escape. The papers included an authenticated copy of the proceedings before Judge Baker and depositions tracing the successive sale and ownership of the fugitive up through the time of his purchase by DeBree from one John Higgins. Additional papers certified John Caphart’s power of attorney for the “apprehension, prosecution, transportation, and restoration to the present claimant” of the fugitive.

While there was a small glimmer of hope, Collison says, in the vagueness of the description of Minkins in these documents, thereby opening a door for a favorable ruling that he was not properly identified, sympathy from the judge in the case was unlikely. Collison writes:

But a sympathetic ruling from George T. Curtis was improbable, to say the least. The commissioner was a Webster Whig through and through. His whole family were mainstays of what remained of Webster’s Whig party base. George T. Curtis had led the efforts to organize the pro-Fugitive Slave Law Union rally at Faneuil Hall in November, at which his brother, Benjamin R. Curtis, had presided. If the Compromise of 1850 and the Fugitive Slave Law could carry Webster and the Whigs into power, George T. Curtis, a lowly federal commissioner, could ride the Webster coattails to power and fortune. So as a commissioner, Curtis would be expected to be scrupulous—but only to a point. He could be expected to strive for the appearance of impartiality. But in all likelihood he would give DeBree and Caphart, not Minkins, the benefit of the doubt.

Not that much benefit of doubt was necessary when the standard for “proving” ownership of an alleged fugitive by a claimant was hardly a bump in the road. The Fugitive Slave Act provided in Section 6 that:

And be it further enacted, That when a person held to service or labor in any State or Territory of the United States, has heretofore or shall hereafter escape into another State or Territory of the United States, the person or persons to whom such service or labor may be due, or his, her, or their agent or attorney, duly authorized, by power of attorney, in writing, acknowledged and certified under the seal of some legal officer or court of the State or Territory in which the same may be executed, may pursue and reclaim such fugitive person, either by procuring a warrant from some one of the courts, judges, or commissioners aforesaid, of the proper circuit, district, or county, for the apprehension of such fugitive from service or labor, or by seizing and arresting such fugitive, where the same can be done without process, and by taking, or causing such person to be taken, forthwith before such court, judge, or commissioner, whose duty it shall be to hear and determine the case of such claimant in a summary manner; and upon satisfactory proof being made, by deposition or affidavit, in writing, to be taken and certified by such court, judge, or commissioner, or by other satisfactory testimony, duly taken and certified by some court, magistrate, justice of the peace, or other legal officer authorized to administer an oath and take depositions under the laws of the State or Territory from which such person owing service or labor may have escaped, with a certificate of such magistracy or other authority, as aforesaid, with the seal of the proper court or officer thereto attached, which seal shall be sufficient to establish the competency of the proof, and with proof, also by affidavit, of the identity of the person whose service or labor is claimed to be due as aforesaid, that the person so arrested does in fact owe service or labor to the person or persons claiming him or her, in the State or Territory from which such fugitive may have escaped as aforesaid, and that said person escaped, to make out and deliver to such claimant, his or her agent or attorney, a certificate setting forth the substantial facts as to the service or labor due from such fugitive to the claimant, and of his or her escape from the State or Territory in which he or she was arrested, with authority to such claimant, or his or her agent or attorney, to use such reasonable force and restraint as may be necessary, under the circumstances of the case, to take and remove such fugitive person back to the State or Territory whence he or she may have escaped as aforesaid. In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence; and the certificates in this and the first [fourth] section mentioned, shall be conclusive of the right of the person or persons in whose favor granted, to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.

This so-called “proof” amounted to little more than the claimant stating under oath that the fugitive was his property and getting a few official stamps on that statement. Not only did was the fugitive denied the right to have his or her case heard before a jury, the Act also excluded all testimony from the alleged fugitive from being admitted as evidence.

Whether or not this would have played into the Minkins case, there was a further financial incentive for such commissioners to return alleged fugitives to claimants, whether or not they were actually the claimant’s property under the law. Section 8 of the Fugitive Slave Act specified compensation for commissioners as follows:

And be it further enacted, That the marshals, their deputies, and the clerks of the said District and Territorial Courts, shall be paid, for their services, the like fees as may be allowed for similar services in other cases; and where such services are rendered exclusively in the arrest, custody, and delivery of the fugitive to the claimant, his or her agent or attorney, or where such supposed fugitive may be discharged out of custody for the want of sufficient proof as aforesaid, then such fees are to be paid in whole by such claimant, his or her agent or attorney; and in all cases where the proceedings are before a commissioner, he shall be entitled to a fee of ten dollars in full for his services in each case, upon the delivery of the said certificate to the claimant, his agent or attorney; or a fee of five dollars in cases where the proof shall not, in the opinion of such commissioner, warrant such certificate and delivery, inclusive of all services incident to such arrest and examination, to be paid, in either case, by the claimant, his or her agent or attorney.

This section of the Act provides that commissioners be paid $10 if they decided in favor of the claimant and delivered the alleged fugitive into slavery, but they would only be paid $5 if they decided in favor of the alleged fugitive. That’s right. A clear conflict of interest was designed into the Fugitive Slave Act, further tilting the playing field in favor of the claimant. With such kangaroo courts making these decisions, it is no wonder then that not only fugitives were returned to slavery under this and the previous Fugitive Slave Act, but that free blacks were kidnapped and delivered into slavery as well.

It was in such a kangaroo court that Minkins’ case was to be decided, and the odds of justice prevailing through application of the law were slim.

After a brief initial hearing on February 15, Judge Curtis adjourned the proceedings for the day, scheduling them to resume three days later. Minkins and his counsel remained in the courtroom afterward conferring on legal strategy.

By this time a sizable crowd had gathered both inside and outside the courthouse, in numbers far beyond the capacity of those law enforcement officers present to contain them. As the two o’clock hour approached that afternoon, nearly 200 hundred people were congregated outside the courthouse as well as in the hallway and stairs outside the courtroom. Those outside the courtroom grew more and more agitated, pressing for information and access whenever the courtroom door was opened. It was harder and harder for the officer holding the courtroom door to maintain control over it as he allowed people to come and go from the room. Finally, the officer could no longer keep the door shut. Gary Collison describes the moment the rescue began in his book Shadrach Minkins: From Fugitive Slave to Citizen:

From the time that the hearing had adjourned, Officer Calvin Hutchins had been nervously guarding the outer main door of the courtroom, which opened outward into the hall. All the other doors were locked. As the last of the lawyers and visitors were leaving, he would open the door just enough for them to squeeze through into the crowded hallway and then pull it shut again by the handle. At a few minutes before two, he opened the door to allow attorney Charles G. Davis and Commonwealth editor Elizur Wright to leave. Once again, many black and brown fingers gripped the edge of the door from the outside. While Hutchins struggled to keep the door from being pulled open into the hallway, Davis managed to slip through the opening into the crowd. This time, however, Hutchins could not pull it back. The words “Tear him away” and “Come in” echoed in the air.

Collison continues:

At the moment that the assault on the outer courtroom door began, Officer Simpson Clark rushed to Hutchins’ aid, and together the two men struggled with all their might to prevent it from swinging open into the hallway. For perhaps a minute the two officers kept the door from opening farther, but finally the crowd “twitched it around.” Clark appears to have lost his hold first. With half the counterweight gone, Hutchins, still gripping the door handle, was carried out into the hallway as the door swung wide open. In an instant, fifteen or twenty black men surged into the opening. “Blows were passed at me, and some kicks,” Hutchins recalled later, but he was unhurt. “Knife him,” Hutchins heard one of the men say, but that man was immediately rebuked by an older man, who urged, “No, hurt no one.”

Once in the courtroom, his rescuers took physical custody of Minkins, who amidst the confusion could not be sure what was going on. In a mishmash of being carried, dragged, and going forth on his own feet, Minkins raced down the stairs, out of the courthouse, and escorted across the city where he was quickly hidden in the attic of Elizabeth Riley, a few doors away from Lewis Hayden, a prominent Boston abolitionist who had helped to rescue Minkins.

Within hours, the story was in the news, first locally in Boston and quickly thereafter across the country, with heated publications both in favor and against the audacious act of courage and compassion. Elizur Wright, publisher of the Commonwealth in Boston, greeted his Sunday morning readers the next day with the headline “KIDNAPPERS DISAPPOINTED.” A couple of days later, the Boston Daily Times fired back with a flamingly racist column declaring that this act signified “OVERTHROW OF THE WHITE POWER AND THE ESTABLISHMENT OF THE BLACK EMPIRE OF MASSACHUSETTS!”

Communications flew back and forth between government officials, as high up as President Millard Fillmore himself. Secretary of State Daniel Webster, who was staking his presidential aspirations on championing the Fugitive Slave Act, called the rescue an act of treason. There were calls for President Fillmore to send in troops to quell the insurrection in Boston. Avoiding that drastic option, Fillmore issued Proclamation 56 – Calling On Citizens to Assist in the Recapture of a Fugitive Slave Arrested in Boston, Massachusetts:

By the President of the United States of America
A Proclamation
Whereas information has been received that sundry lawless persons, principally persons of color, combined and confederated together for the purpose of opposing by force the execution of the laws of the United States, did, at Boston, in Massachusetts, on the 15th of this month, make a violent assault on the marshal or deputy marshals of the United States for the district of Massachusetts, in the court-house, and did overcome the said officers, and did by force rescue from their custody a person arrested as a fugitive slave, and then and there a prisoner lawfully holden by the said marshal or deputy marshals of the United States, and other scandalous outrages did commit in violation of law:

Now, therefore, to the end that the authority of the laws may be maintained and those concerned in violating them brought to immediate and condign punishment, I have issued this my proclamation, calling on all well-disposed citizens to rally to the support of the laws of their country, and requiring and commanding all officers, civil and military, and all other persons, civil or military, who shall be found within the vicinity of this outrage, to be aiding and assisting by all means in their power in quelling this and other such combinations and assisting the marshal and his deputies in recapturing the above-mentioned prisoner; and I do especially direct that prosecutions be commenced against all persons who shall have made themselves alders or abettors in or to this flagitious offense; and I do further command that the district attorney of the United States and all other persons concerned in the administration or execution of the laws of the United States cause the foregoing offenders and all such as aided, abetted, or assisted them or shall be found to have harbored or concealed such fugitive contrary to law to be immediately arrested and proceeded with according to law.

Given under my hand and the seal of the United States this 18th day of February, 1851.

MILLARD FILLMORE.

DANL. WEBSTER,

Secretary of State.

Arrests began even before the proclamation, as government officials moved swiftly to make a public statement that the Fugitive Slave Act could and would be enforced, even in against strong local abolitionist sentiments such as those expressed in Boston the morning of Saturday, February 15th. The Monday after the rescue, U.S. marshals arrested Elizur Wright and Charles G. Davis. On Tuesday, they arrested a man named John Foye (or Noye), followed by James Scott on Wednesday. Joseph K. Hayes was arrested on Friday, the 21st of February, as was Alexander P. Burton of Salem, mistakenly it turns out, on a warrant that actually specified Andrew J. Burton, who lived in Boston. Alexander Burton was subsequently released. The next day, Thomas Paul Smith was arrested, as was Lewis Hayden. A week later, on Saturday, March 1, John P. Coburn and Robert Morris were both arrested.

Not including Burton, nine men total were arrested for aiding in the rescue of Shadrach Minkins, seven of whom—five black and two white—would be charged, with their trials scheduled to begin in May of 1851. Those trials would result in seven consecutive, highly public failures on the part of the government to secure even a single conviction of any of those suspects, with most if not all of those failures likely resulting from jury nullification.

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