The G(arner
Fugitive
SkaveCcise
BY JULIUS YANUCK
By far the most shockingof all fugitiveslave cases was that of
Margaret Garner who killed her own daughterto keep her from
being returnedto slavery.The frightfulact precipitateda controversybetween the national governmentand the state of Ohio in
whichthe highestofficers
of both, GovernorSalmon P. Chase and
PresidentFranklinPierce,tookpart. The constitutionalissueswere
grave, if not dangerouslyclose to insoluble,but the Garner case
had yet othermeaningsfor the nation. It demonstratedforcefully
the deep personal tragedyof slavery.The way Margaret Garner's
littlegirldied embarrassedthe South and disturbedthe North more
than a hundredargumentsof antislaveryphilosophers.
All the otheraspects of the fugitiveslave problem seemed perfectlysuited to arouse resentmenton both sides, and the state of
the law on the subject equally lent itself to irritations.Escaped
slaves would seek refugein stateswhichforbadeslavery,so that almost invariablythe states which were most hostile to the slaveholder'sclaim were the sceneof his effortto recoverrunawayproperty.The ownerhad a legal rightto seize his fugitiveslave and take
him back home withoutany formalproceedingwhatever,'and if
he found the runaway in a slaveholding state this was easily accomplished.However, in a free state the mastercould not always
count on the friendlyunderstandingof the population, nor upon
the cooperationof the police authoritiesin securingthe returnof
the slave. In this event it was advantageous to obtain a certificate
underthe Fugitive Slave Law.2 Such a certificate
barred all interferencewith the transportation
of the slave, by any courtor other
officer.3If the masterfeared that the slave mightbe forciblyres1
Prigg v. Pennsylvania, 16 Peters 539, 613 (1842).
The Public Statutes at Large of the United States of America, 43 vols. (Washington, 1845-1925), I, 302; ibid., IX, 462.
3 Ibid., IX, 462, sec. 6.
2
47
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cued fromhim,he could make affidavitto this effectafterthe certificatehad been granted,and it thereuponbecame the duty of the
United States Marshal of the districtto engage, at the expense of
to deliver the slave safely to
the national treasury,forcessufficient
the masterin the state fromwhich the slave had fled.4
Besides the questionof identityof the alleged fugitive,the important issue at the hearing under the Fugitive Slave Law was
whetherhe owed serviceor labor under the law of the state from
which he had escaped. Althoughthe legal action to obtain a certificatetookplace in a freestate,no law of thefreestate could serve
to emancipatethe fugitive,5and the law of the slave state determined the outcome of the hearing. In many cases free and slave
statesdisagreedas to the statusof an individualclaimed as a slave.
Free statesusually followed the principlethat when a mastertook
his slave into a free state, even without the intentionto remain
permanently,the slave could refuseto return.The master could
not invokethe Fugitive Slave Law because the slave had not come
into the freestate as a fugitive.6Sometimessuch a slave returned
voluntarilyto the slave state, and the question then arose as to
whetherhe had therebyrevertedto his formerslave status. The
United States SupremeCourt held that in such a case the person's
statusdependedupon the law of the slave state in whichhe found
himself;7 theslave statesuniformlyregardedsuchpersonsas slaves.8
In some freestates the Fugitive Slave Law was attacked as unconstitutionalbecause no provisionwas made for trial by jury of
the status of the alleged fugitive.9 The argumentwas also frequently advanced that the commissionerswho were appointed by
United States circuitcourts,and who were empoweredunder the
Fugitive Slave Law of 1850 to issue certificatesfor the rendition
of fugitiveslaves, were exercisingjudicial functions.Thus, it was
claimed, they should be appointed by the presidentwith the con41bid., sec. 9.
5 United States Constitution,Art. IV, sec. 2, cl. 3.
6 Commonwealth v. Aves, 18 Pickering (Mass.) 193 (1836). See also Butler v. Hopper, 4 Federal Cases 904 (1806), and Ex parte Simmons, 22 Federal Cases 151 (1823).
7 Strader v. Graham, 10 Howard 82 (1850).
8 John C. Hurd, The Law of Freedom and Bondage in the United States, 2 vols.
(Boston, 1858, 1862), II, 773.
9 For a discussion upholding the constitutionalityof the law, see Allen Johnson,
"The Constitutionalityof the Fugitive Slave Acts," Yale Law Journal (New Haven),
XXXI (December, 1921), 161.82.
THE GARNER FUGITIVE
SLAVE CASE
49
sent of the Senate, and receivea fixedsalary ratherthan the fees
set by theFugitive Slave Law. It was not until 1859, in the famous
Booth case, that the SupremeCourt upheld the constitutionality
of
the law of 1850, and even then did not discuss it at length.'0 In
themeantime,courtsin freestatessometimesendeavoredto prevent
returnof a fugitiveslave by holding the federal law unconstitutional,or by assertingthatthepersonwas freeunderthe law of the
freestate althougha slave in contemplationof the law of the jurisdictionfromwhichhe fled.
The claimant of a fugitiveusually enlisted the aid of federal
authoritiesin seizing the runaway,and a hearingwas held before
a United States Commissioner.Effortsby a state court to set a
prisonerfree could thus lead directlyto conflictwith the United
States over possession of the slave. Although the United States
Supreme Court had held that federal courtswere powerlessto release a prisonerof a state,except forthe purposeof testimonyat a
federaljudicial proceeding,'1freestate courtsrejectedthe idea that
theywerecorrespondently
disabled. They assertedtheirrightto inquire into the lawfulnessof detentioneven when a person was in
the custodyof United States officers."2
The Garnerarrest,almost the last of the great fugitivecases of
the 1850's, seemedto overshadowall thosewhichhad gone before.
Even the case of Sherman Booth of Wisconsin, which was then
makingits way to the Supreme Court for decision,did not create
such feeling.The nation was as much aroused as it had been over
the returnof AnthonyBurns to slaveryin 1854,'3 when it had required the assistanceof a battalion of troops to take him out of
Boston.'4 Resentmentin Ohio was the deeper for the attempt,less
than a yearbeforethe Garnercase, to get a United States Commissionerto send a Negro named Rosetta Armsteadback to the South.
Her master took her to Cincinnati,and she refusedto returnto
slavery.When the United States Marshal arrestedher under the
Commissioner'swarranteven thougha state courthad declared her
10
Ableman v. Booth, 21 Howard 506 (1859).
11n re Dorr, 3 Howard 103 (1845).
12 Rollin C. Hurd, A Treatise on the
Right of Personal Liberty and on the Writ of
Habeas Corpus (Albany, 1858), 166.
13 Alexander Johnston,"Fugitive Slave
Laws," John J. Lalor (ed.), Cyclopaedia of
Political Science, 3 vols. (Chicago, 1883), II, 317.
14 Henry S. Commager, Theodore Parker
(Boston, 1936), 232-42.
50
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free,the state soughtto punish the Marshal for contempt.A writ
of habeas corpus issued by JusticeJohn McLean saved him from
imprisonment.'5The Garner case appeared to be an even clearer
attemptto disregardOhio law.
It was not that Cincinnatiitselfwas friendlyto fugitiveslaves.
In southernOhio therewas a markedantipathytowardsabolition.
Antislaverysentimenttriumphedat the polls in the Ohio election
of 1855, and Salmon P. Chase was electedgovernor,but in Hamilton County of which Cincinnati was part, Chase received only
4,518 out of 23,280 votes cast. He observedthat "the rest- divided between the Democratic and Know-Nothing candidatesrepresentedhostilityto my political and especially to my antislavery opinions and principles."16 But in spite of its strongly
antiabolitionelectorate,Cincinnati'sgeographicallocation and its
abolitionistorganizationmade it a main startingpoint on
efficient
the UndergroundRailroad. It was Cincinnati that the Garners
hoped to reach when they set out, on that cold night in January,
1856.
A typicaldispatch,relatingthe firsteventsof the story,was telegraphed to the New York Daily Times by its Cincinnati correspondenton January28, 1856. The message advised briefly:"A
stampede of slaves from the border counties of Kentucky took
place last night....
One slave woman, finding escape impossible,
cut the throatsof her children,killing one instantly,and severely
woundingtwo others.Six of the fugitiveswere apprehended,but
eightare said to have escaped." 1
Old Simon Garner, his wife Mary, and Simon, Jr., were the
slaves of James Marshall of Richwood Station, Boone County,
Kentucky.MargaretGarner,the wife of Simon,Jr.,and theirfour
childrenbelongedto ArchibaldK. Gaines, ownerof a near-byplantation. Late in the night,Sunday, January27, 1856, the Garners
fled,'8takingwith themnine slave friendsfromotherplantations.
15 Ex parte Robinson, 20 Federal Cases 969 (1855).
'r Salmon P. Chase to J. T. Trowbridge, March 13, 1864, J. W. Schuckers,Life and
Public Services of Salmon Portland Chase (New York, 1876), 172.
17 New York Daily Times, January 29, 1856. It will be seen that this dispatch was
in some details inaccurate.
18 It is likely that their determinationto escape was strengthenedby two English
ladies who were at that time guests in the home of Archibald K. Gaines. Soon after the
slaves fled the ladies were accused of encouraging them by pointing out the possibilities
of escape. They hastily terminatedtheir visit because of threats to their lives. Ibid.,
February 16, 1856.
THE GARNER FUGITIVE
SLAVE CASE
51
All crowded into a large horse-drawnsleigh and sped over icecovered roads to the Ohio River about sixteen miles away. The
road was well known to the slaves; the Garners had been in Cincinnatibefore.
The winterof 1855-1856 was particularlycold, and the river
which usually constituteda barrierto runaways was now frozen
into a convenientfootbridgefromslaveryto freedom.They abandoned their carriage and, as fast as Margaret Garner's pregnant
conditionwould allow, hurriedacross to Ohio's free ground. By
thistimeit was daylight.Realizing thatseventeenNegroeswalking
togetherthroughthe streetsof Cincinnatiwould be veryconspicuous, theyseparatedinto two groups.One littleband of nine reached
friendsin the UndergroundRailroad; ultimatelythe North Star
led themto Canada. The othereightpersonswere the Garner family.19
Aftermakingseveral inquiries,the Garners found the home of
their kinsman,Elijah Kite. He spent but a momentof precious
timein greeting,thenhastenedto theshop at Sixth and Elm streets,
belongingto Levi Coffin,"President" of the UndergroundRailroad. Kite reportedthe new arrivals and receivedinstructionson
forwardingthemto the next stationof the Underground.He hurried home to complywith orders,but barely had he returnedwhen
an arrestingparty surroundedhis house and demanded the peaceable surrender
of thefugitives.Someoneof whomtheGarnersasked
directionshad betrayedthem.20
The slaveownershad lost no timein takingup thepursuit.Archibald K. Gaines, accompanied by the son of James Marshall, the
otherslaveholder,arrivedin Cincinnatiat seven the morningafter
the escape. They quickly obtained a warrantfor the arrestof the
slaves pursuantto the Fugitive Slave Law.21 With some friends
and a forceof deputyUnited States marshals,theysoughtthe Garnerfamilyand foundthemat the home of Elijah Kite.22
19 Cincinnati Daily Gazette, January 29, February 4, 7, 1856; Covington (Ky.)
Journal, February 2, 1856; New York Daily Times, February 16, 1856; Frankfort
(Ky.) Commonwealth,February 5, 1856. There were a number of escapes that winter.
Reminiscences of Levi Coffin (Cincinnati, 1876), 557-58; J. Winston Coleman, Jr.,
Slavery Times in Kentucky (Chapel Hill, 1940), 208 n.
20 Reminiscences of Levi Coffin,558-59.
21 Statutes at Large, IX, 462, sec. 6.
22 Cincinnati Daily Gazette, January 29, 1856; Frankfort Commonwealth, February 5, 1856.
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Inside the cabin the frightened
slaves hastilybarredthe doors
and windows,
buttheyrealizedthattheywerelost.SimonGarner,
Jr.,firedtwo roundsfroma revolverand thiskeptthe arresting
partyofffora while,butit was hopelessly
clearthatnothingcould
save theGarnersfromcapture.Suddenly,MargaretGarnerseized
a butcher
knifeand turneduponherthree-year-old
daughter.
With
swiftand terrible
forceshehackedat thechild'sthroat.Againand
again she struckuntilthe littlegirl was almostdecapitated.The
two Garnermenbeganto scream.Unable to bear the horrorthey
ranwildlyaboutthecabin.Now MargaretGarnerturnedtoward
one of herlittleboyswho pleadedpiteouslywithhis mothernot
to kill him.She called to old Mary Garner,"Mother,help me to
kill thechildren."23 The old womanbeganto wail and wringher
hands.Her eyescouldnotendurethemurderof hergrandchildren
andsheranforrefugeundera bed.Finally,Elijah Kite'swifemanagedto disarmMargaretGarnerwhoall thewhilesobbedthatshe
wouldratherkill everyone of herchildrenthanhave themtaken
back acrosstheriver.2"
The arresting
partycautiously
thehouse.One deputy
approached
marshalforceda windowand jumpedintothe cabin,but Simon,
Jr.,leveledhispistolat him.The Marshalattempted
to wrestthe
weaponfromthe fugitiveand in the strugglethe pistolwas discharged.Two fingers
wereshot away fromthe Marshal'shand;
thentheball ricocheted,
struckhimin thelip, and dislocatedseveralteeth.He withdrew
fromthecabin.25The arresting
partynext
brought
up a heavytimber,
battereddownthefrontdoor,and the
littlehousewas carried.MargaretGarnerfoughtwildly,but was
at last overpowered.
When Gainesand themarshalswereable to
lookaboutthecabintheireyesmetthealmostlifelessbodyof the,
littlegirl.Two otherchildren
werebleedingprofusely,
and a fourth,
an infantof less thana year,was badlybruised.One of Gaines's
partytookthedyinggirlintohis arms,but the crowdwhichhad
gatheredwouldnot let herbe takenalong withthe otherslaves.
A moment
laterthechildwas dead.26
23 Cincinnati Commercial, January 30, 1856, quoted in New York Daily
Times,
February 2, 1856.
24
Ibid.
25
Cincinnati Times, quoted in New York Daily Times, February 2, 1856.
26 Reminiscences of Levi Coffin,559; Covington Journal, February 2, 1856; Cin-
cinnati Times, January 29, 1856, quoted in New York Daily Times, February 2, 1856.
THE GARNER FUGITIVE
SLAVE CASE
53
As quicklyas horse-drawnomnibusescould carrythem,the Garners were broughtto the federal courthousein Cincinnati. Here
Gaines made applicationto JohnL. Pendery,a United States comto transmissionerfortheSouthernDistrictof Ohio, fora certificate
port his slaves back to Kentucky.James Marshall's son had neglected to bringa power of attorney,so he could not act to reclaim
the slaves. Hearings were thereforepostponed. It was impossible
to keep the slaves in the courtroomovernight,and the marshalsdecided to take them to the Hammond Street station house of the
citypolice. They were compelledto walk therebecause the cabmen
droveoff,fearingthat the shoutingcrowdwould destroytheircabs
if they accepted the passengers.27Afterthe slaves were locked in
a cell, Gaines came in withthebody of the dead child.28It was now
about 3:00 P. M.; theGarnershad been in Cincinnatinine crowded
hours.
In the stationhouse the slaves awaited the processof law. Marbut she rousedherselfwhen
garet Garnersat as thoughstupefied,29
a complimentwas paid her on her finelooking little boy. She replied sadly, "You should have seen my little girl that- that(she did not like to say was killed) that died, that was the bird." 30
She had a scar on the left side of her foreheadrunningdown to her
cheekbone.When she was asked how she had come by this mark,
she repliedonly, "White man struckme." 31
While the federallaw was actingto send the slaves back to Kentucky,friendsof the Garnerswerenot idle. A writof habeas corpus
was obtained fromJudge John Burgoyneof the state's probate
courtin orderto trythe legalityof detentionof the fugitivesby the
United States authorities.Counsel werepreparedto argue that the
Garnershad been made freeby theirpreviousvisits to Cincinnati,
and thathencetheywerefreepersonsat the timeof theirdeparture
fromKentucky on the night of January 27, 1856.32 Foreseeing
Boston Liberator, February 8, 1856; Cincinnati Daily Gazette, January 29, 1856.
The Cincinnati Daily Gazette, January 29, 1856, commented bitterly,"He was
taking it to Covington for intermentthat it might rest in ground consecrated to slavery.
29 Boston Liberator, February 8, 1856.
30 Cincinnati Commercial, January 30, 1856, quoted in New York Daily
Times,
February 2, 1856.
31 Cincinnati Daily Gazette, February 11, 1856.
32Ibid., January 29, 1856; Frankfort Commonwealth, February 5, 1856. There is
no stenographicor other officialrecord extant of any of the state or federal hearings
27
28
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conflictwith federal authority,Judge Burgoyne made a trip to
Columbus to consult GovernorChase, who assured him "that the
processof the State courtsshould be enforced. . . and authorized
him to say to the sheriffthat, in the performanceof his duty, he
would be sustained by the whole power at the command of the
Governor."3
Judge Burgoyne'swritwas put into the hands of Deputy Sheriff
JeffBuckingham,who proceededwith a forceof assistantsto the
stationhouse to serve the writon the United States marshals,but
theystubbornlyrefusedto obey the state's habeas corpus.Outside,
an antislaverycrowd urged the officerto take the slaves by force.
Serious trouble was imminent.The outnumberedmarshals tried
trickery,attemptingto lure Buckinghamout of the building with
an invitationto a drinkat the local hotel, but he declined. When
Buckinghamchallengedthe rightof the marshalsto keep slaves in
the citypolice station,theyclaimed permissionfromMayor James
J. Faran, but he indignantlydenied that he had authorizeduse of
the city'sfacilities.Faran advised the marshalsto yield, and finally
theyagreed.As soon as the triumphantBuckinghamput the slaves
on an omnibus,climbedup next to the driver,and orderedhim to
take themto the countyjail, several marshalsjumped aboard and
drewtheirpistols.While two or threeheld down the outrageddeputy sheriff,
the driverwas forcedto proceed to the United States
courthouse.Offtheywent,pursuedby Buckingham'sstartledassistants.34
The marshals,who arrivedat the courthouseonly a momentbeforethe pursuingsheriffs,
broughttheirprisonersinto the building,
but could not preventBuckinghamand several othersheriffs
from
followingthemupstairs.A marshalurgeda streetcrowd,composed
of supportersof both sides, to assist the United States authorities
in drivingout the state officers;despitelack of volunteersthe marshals succeeded in forcingout all the invaders except the valiant
Buckingham,who, in turn,appealed to the crowd for aid in serving thewritof the state court.By thistimeSheriffGazoway Brashin this case. One opinion by Judge Humphrey Leavitt is available in the officialreports. See n. 79.
33 Chase to Trowbridge, March 13, 1864, Schuckers, Life and Public Services of
Salmon Portland Chase, 173.
34 Cincinnati Commercial,January 30, 1856,quoted in New York Daily Times, February 2, 1856; Cincinnati DJaily Gazette, January 29, 1856.
THE GARNER FUGITIVE
SLAVE CASE
55
ears of Hamilton Countywas advancing on the federalcourthouse
in force.He seized the Garnersbut agreed to produce themat the
hearingsto take place beforeUnited States CommissionerPendery.
The Garnerswere locked in the countyjail.
It soon appeared that Brashears' attorneyshad advised him that
he had not acted lawfully in taking the Garners fromthe United
States marshals.In his returnto Judge Burgoyne'shabeas corpus,
Brashearsreportedthat althoughthe slaves were in the Hamilton
Countyjail, theywere in the legal custodyof United States Marshal Hiram H. Robinson.35This seemed to settlethe question,and
it appeared that the case would proceed before the Commissioner
in the usual mannerof such litigation.36
On January30, threedays afterthe escape fromKentucky,the
hearingsbegan. The firstcase was the application of James Marshall for a certificatefor his slaves, Simon Garner,Mary, and Simon,Jr. The slaves of ArchibaldK. Gaines, Margaret Garner and
her children,would be dealt with in a separate hearing.John Jolliffe,a prominentantislaveryattorneyof Cincinnati,acted as chief
counsel forthe Garnerfamily,while the slave claimantswere representedby Colonel Francis T. Chambersof Cincinnatiand by two
lawyers fromCovington,Kentucky.37
As soon as thehearingopened,Jolliffeasked fora postponement.
He needed moretimeto produceevidencethat some of the Garners
had, withthe consentof theirowners,been in Ohio before.He contended that since the constitutionof Ohio forbade slavery on her
soil the slaves had thus become free,and this status could not be
takenfromthem.MargaretGarner'schildrenwereborn aftertheir
motherhad acquired freedom;they were free at birth.38Colonel
35 Cincinnati Times, January 29, 1856, quoted in New York Daily Times, February 2, 1856; Cincinnati Commercial,January 30, 1856, quoted ibid.; Boston Liberator,
February 8, 1856; Cincinnati Daily Gazette, January 30, 1856.
36 The Cincinnati Commercial, January 30, 1856, remarked that the Commissioner's
hearings would then begin unless a new habeas corpus was taken out or a prosecution
for murder commencedby the state of Ohio against the Garners. "This will complicate
the case so that it is difficultto see where it can end," the newspaper commented.
Quoted in New York Daily Times, February 2, 1856. Events were to justify fully this
view of the matter.
37 Reminiscences of Levi Coffin,548; Covington Journal, February 2, 1856.
38 The rule was that a child took at its birth the status of the mother.This doctrine,
partus sequitur ventrem, was generally accepted in the slaveholding states. Thomas
R. R. Cobb, Law of Negro Slavery in the United States (Philadelphia, 1858), 68;
Jacob D. Wheeler, A Practical Treatise on the Law of Slavery (New York, 1837),
56
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Chambers
fortheclaimantsassertedthatwhatever
of the
theeffect
Garners'previousvisitsto Ohio, theirvoluntaryreturnto Kentuckyhaddivestedthemofanyfreestatustheymighthaveacquired
in Ohio.Commissioner
Penderygrantedthepostponement
without
commenting
on eitherargument.
thelargeforceof specialUnitedStatesmarUpon adjournment
shals takingtheprisoners
to the countyjail had to push through
thecrowdin frontof thecourthouse.
Negroes,whohad beenkept
out of the hearingand resentedthisexclusion,werea largepart
of theangrythrong,
and thehostility
towardsthemarshalsseemed
to be led by a groupof well-dressed
Negrowomen."9Friendsof
the slaves called a publicmeetingto help the Garners,and the
Hutchinson
Family,a traveling
groupof singerswithan abolitionist repertory,
volunteeredto entertain.40
However,no meeting
placecouldbe rentedin theentirecity.The firmof Smith& Nixon,
operators
of a popularhall,explainedthatthey"haveno objection
to the Hall beingused for a calm and deliberativeanti-slavery
meeting,
but thefurniture
and fixtures
of theroomare not calculatedfortheroughusageof a massmeetingin thepresentexcited
stateof thepublicmind."4' This decisionwas applaudedby moderateopinion,exemplified
by the CincinnatiDaily Gazette.The
newspaper
urgedthatsuchmeetings
couldserveno usefulpurpose
and pleadedforself-restraint
and publicorder.Resistanceto the
FugitiveSlave Law, it asserted,"would manufacture
pro-slavery
sentiments
tenthousandtimesmorerapidlythantheworkcan be
accomplished
by the slaverypropagandists
of the South."42
In themeantime,
thecoronerbeganhis inquestintothecauseof
theGarnerchild'sdeath.The coroner's
juryfoundthat"themurderedchildwas almostwhite,andwas a littlegirlof rarebeauty,"4
and thatshehad beenkilledby hermother,
MargaretGarner;the
twoGarnermenwerenamedas accessories.44
The nextmoveby the
3, 34. However, John Jolliffe's other arguments were not, of course, accepted legal
theoryin those states.
39 Cincinnati Columbian, January 31, 1856, quoted in New York Daily Times, February 4, 1856; Cincinnati Commercial, January 30, 1856, quoted ibid., February 2,
1856; Cincinnati Daily Gazette, January 30, February 13, 1856.
40 Louisville Democrat, quoted in Lexington Kentucky Statesman, February 5, 1856.
41 Cincinnati Daily Gazette, February 1, 1856.
42
Ibid.
43William G. Hawkins, Lunsford Lane (Boston, 1863), 125.
4 Cincinnati Daily Gazette, January 30, 1856.
THE GARNER FUGITIVE
SLAVE CASE
57
state of Ohio, in its endeavor to keep the Garners from slavery,
was the issuance of warrantsfor the arrestof all four adults on a
chargeof murder.
When the federal hearing resumed,Jolliffe,counsel for the
slaves, asked the Commissionerto allow state officers
to arrestthe
Garnersat once. He realized it seemed strange,Jollifferemarked,
foran attorneyto seek the arrestof his own clientsformurder,but
"each and all of themhad assuredhim that theywould go singing
to the gallows ratherthan be returnedto slavery."" Counsel for
the claimantstook a positionno less anomalous. He repliedthat he
did not wonderat theattitudeof theslaves, and ordinarilyhe would
agree with them.However, it would be wiser to go back to Kentuckythan go to the gallows, because in Kentuckythe slaves might
some day have another opportunityfor escape. For his part, he
hoped theywould have that chance.46Obviously,the effectsought
by each counsel was really quite opposed to that for which he argued.
The hearingon James Marshall's application lasted threedays.
Witnesses for the claimant identifiedthe Garners as slaves; witnesses for the Garnerstestifiedto having seen them in Cincinnati
on previousoccasions.47In his closing remarks,CounselorJolliffe
pleaded with the Commissionerto have the moral courage to decide in favorof the slaves. He warmlydefended"the Abolitionists
the hated, the despised." 48 Vehemently,he denouncedthe law
requiringthe surrenderof fugitiveslaves, assertingthat it contravened the word of God and was thereforea violation of the freedom of religionguaranteedby the Constitution."If Congresscould
45Remintiscencesof Levi Cofnin,561; New York Daily Times, February 8, 1856.
The Frankfort Commonwealth, February 12, 1856, remarked that "the abolitionists
love her [Margaret Garner] so well that they would rather have her hung for murder
than return her to her master."
46 Cincinnati Daily Gazette, February 1, 1856.
47 Cincinnati Columbian, January 31, 1856, quoted in New York Daily Times,
February 4, 1856; Frankfort Commonwealth, February 19, 1856; Cincinnati Daily
Gazette, January 31, 1856. Simon Garner, Jr., had given up an opportunityto escape
the last time he was in Cincinnati because he did not want to go without his family.
New York Daily Times, February 16, 1856. Thomas Marshall, son of the claimant,
was reported to have said the Garners had been "satisfactoryservants, often in Ohio."
Boston Liberator, February 8, 1856. On the witness stand he denied having made the
statement.Contradictoryevidence was given, and on February 21 the Commissioner
issued a warrant for Marshall's arrest on a charge of perjury. Cincinnati Daily Ga.
zette, February 22, 1856.
48
Cincinnati Daily
Gazette, February 7, 1856.
58
THE MISSISSIPPI
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not pass a law requiringyou to worshipGod," he thundered,"still
less could they pass one requiringyou to carry fuel to hell." 49
Shoutsof applause filledthe room,while themarshalsand the Commissionercried "Order, Order! " 50
In rebuttalColonel Chambersstressedthe authorityof the Supreme Court of the United States over the state courts,and the
bindingcharacterof the decisionsof thatcourtupholdingthe rights
of slaveholdersin similarcases. If the slaves were entitledto freedom under Kentucky law, said Chambers, a trial of the issues
should be held in that state."' Chamberswarned that withoutobedience to law the Union could not be preserved: "there is a good
time ahead, - life to the nation if the people will only be quiet.
We have theUnion yet,and let thosewho would dissolve it forthe
sake of the slave rememberthat in achieving the libertyof three
millions of blacks they are perilingthose of twenty-four
millions
of the white race." 52
CommissionerPendery reserveddecision on James Marshall's
application,and moved on to the matterof Margaret Garner and
her children,claimed by Archibald K. Gaines. This case followed
the patternof the previous hearing. Colonel Chamberswas especially alert to preventopposing counsel frombringingthe matter
'"withinthe humanities"5 in orderto gain sympathyfor the children. Margaret Garner testifiedthat at the age of seven she had
served in Cincinnatias a nursemaidto the infantdaughterof her
formerowner,JohnP. Gaines, latergovernorof OregonTerritory.54
Althoughthe Fugitive Slave Law expresslyforbade testimonyby
a slave in his own defense,the Commissionerallowed Margaret
Garner to give this evidence as to her claimed free status because
it involvedthe statusof her children.55As in the previoushearing,
CounselorJolliffeasked that his clientsbe turnedover to the state
Reminiscences of Levi Coffin,562.
New York Daily Times, February 8, 1856.
51 At this, counsel for the slaves forgot himself so much as to laugh. Cincinnati
Daily Gazette, February 8, 1856.
52 Ibid.
53 Ibid., February 11, 1856.
54 Witnesses for the slaves testifiedthat it was not unusual for slave children of
tender years to be charged with such duties. Ibid., February 12, 1856.
55Ibid. The law provided: "In no trial or hearing under this Act shall the testimony of such alleged fugitive be admitted into evidence." Statutes at Large, IX, 462,
sec. 6.
49
50
THE GARNER FUGITIVE
SLAVE CASE
59
forprosecutionfor murder.The rightof Ohio to punish for crime
mustbe superiorto privateclaims,he argued. Otherwisea fugitive
slave mightshootUnited States marshalsor even the Commissioner,
and not be prosecuteduntil afterthe Fugitive Slave Law had run
its course. Here Colonel Chambers objected that this reasoning
would defeat the operationof the law, since a fugitivewould need
only to commitsome triflinginfractionof state law and he would
be beyondhis master'sreach. Because of the large numberof previouslyunadjudicated questionsin the case, CommissionerPendery
setMarch 12, a monthlater,as thedate forhis decisionon theclaims
of Gaines and Marshall.56
Afteradjournmenttherewas a meetingof spectators,addressed
by Mrs. Lucy Stone Blackwell, abolitionistand famouscampaigner
for woman suffrage.Many distinguishedpersonshad attendedthe
hearingsand visitedthe Garnersin prison,amongthemMrs. Blackwell. During the hearing,Colonel Chambersassertedthat she had
asked a deputymarshalforpermissionto pass a knifeto Margaret
Garner,withwhichthe slave could kill herselfif the Commissioner
sent her back to Kentucky.Jolliffeasked that Mrs. Blackwell be
allowed to make a statementin open courtin her own defense,but
his opponentsobjected. They suggestedinstead that a meetingbe
held afterthe hearingso that those who desiredto listen mightdo
so. Now Mrs. Blackwell drew tears from many listenersas she
pleaded for sympatheticunderstandingof the Garners:
The faded faces of the Negro children tell too plainly to what degradation female slaves submit. Rather than give her little daughter to that life,
she killed it .
.
. With my own teeth would I tear open my veins and let
the earth drinkmy blood, rather than to wear the chains of slavery. How
then could I blame her for wishing her child to find freedom with God
and the angels, where no chains are'? 57
She hoped that the Commissionermightyet obey Holy Writ and
refuseto give up the fugitives.58In any case, she remarked,Gaines
56 Boston Liberator, February 22, 1856; Cincinnati Daily Gazette, February 14,
1856; Covington Journal, February 16, 1856. The Frankfort Commonwealth, February 19, 1856, humorously expressed concern lest the length of the Commissioner's
opinion be in proportion to the time he was taking to write it.
57 Reminiscences of Levi Coffin,565; Cincinnati Daily Gazette, February 14, 1856.
68 She referredto Deuteronomy 23: 15, 16: "Thou shalt not deliver unto his master
the servant which is escaped from his master unto thee. He shall dwell with thee,
even among you, in that place which he shall choose in one of thy gates, where it
liketh him best: thou shalt not oppress him."
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had promisedto manumittheslavesin Kentucky.ColonelChambersprotested
thathisclienthad onlysaidhe woulddetermine
what
to do withthemaftertheywerereturned
to Kentucky.This Mrs.
Blackwelldenouncedas evasion.She gave noticeto theworldthat
wheneverand whereverpossible,she would oppose the Fugitive
Slave Law and do herutmostto preventits operation.Therewas
greatapplause whenshe sat down,temperedby verynoticeable
hisses.59
Counsel were surprisedat a notification
fromCommissioner
Penderythathis decisionwouldbe givenon February21 instead
of March 12. MarshalRobinsonwentto the countyjail and demandedpossessionof theslavesin orderto have thembeforethe
Commissioner
on decisionday. By thistimetheGarnershad been
formallyindictedby the stateformurder,and Sheriff
Brashears
refused
togivethemup.60Robinsonthensoughttwowritsofhabeas
corpusfromUnitedStatesDistrictJudgeHumphreyH. Leavitt.
One writwas forthefouradults,theotherforthe children.The
writswouldtestwhohad thelegalcustodyof theslaves,theUnited
StatesMarshalor the Sheriff.
Robinson'smovewas countered
by
friendsof the slaves who obtaineda writof habeas corpusfrom
Judge Burgoynecoveringthe Garnerchildren.Thus the legal
was erectedto keeptheentireGarnerfamilyfromslavframework
ery:thefouradultswereunderindictment
formurder,
thechildren
wereheldunderthislatesthabeascorpus.Subsequently,
JudgeBurgoynemadea specialorderforbidding
MarshalRobinsonto remove
thechildren
fromthestatependinghisfinaldecisionon thelegality
of theirdetention.6'
The Covington
Journal,commenting
thata conflict
betweenthe
stateandthenationalgovernment
appearedinevitable,
warnedthat
"at presentthefugitive
slavelaw is veryneara nullity.The sooner
theSouthknowswhatit has to dependuponthebetter."62 Citizens
of Booneand Kentoncountiesin Kentuckyheld angrymassmeetings. They commended
Gaines and Marshall for theirvigorous
59 CincinnatiDaily Gazette, February 14, 1856; Boston Liberator, February 29, 1856;
Covington Journal, February 16, 1856.
60 Lexington Kentucky Statesman, February 26, 1856; Frankfort Commonwealth,
February 12, 1856.
61 Cincinnati Daily Gazette, February 28, 1856; Frankfort Commonwealth, February 26, 1856.
62 Covington Journal, February 23, 1856.
THE GARNER FUGITIVE
SLAVE CASE
61
prosecutionof rightsunder the law, and called upon Kentuckyto
reimbursethem for expenditures incurred in reclaiming their
slaves.63
On February26 Judge Leavitt heard argumentson Robinson's
habeas corpus.The Marshal contendedthat the slaves had been in
United States custodyever since theirarrestunder a federal warrantat the homeof Elijah Kite. The state could not take prisoners
out of federalcustodyand the Fugitive Slave Law mustbe allowed
to runits course.SheriffBrashearsargued that fugitiveslaves were
accountable for their crimes,and could be punished beforebeingr
returnedto theirowner. Further,if the Garnerswere sent back to
Kentuckyunderthe Fugitive Slave Law, theywould not be fleeing
fromOhio justice. Hence theycould not be extraditedback to Ohio
to answer for theircrime. In any case, Brashears' argumentconcluded, the state now had possessionof the slaves and the federal
court could not seize themby habeas corpus.8"Judge Leavitt reserveddecisionfortwo days.
No soonerhad Leavitt steppeddown than CommissionerPendery
ascendedthebenchto give his decisionon the applicationsof Gaines
and Marshall. Certificates
would be granted,he announced,and the
slaves deliveredto theclaimants.Simon Garner,Sr., had neverbeen
in Ohio before; clearlyhe was a fugitiveslave. The otherGarners
were also recoverable.The law of Ohio could forbidthe enforcementon Ohio soil of the obligationof slave to master,but it could
not annul the relationshippermanently."In coming to Ohio the
mastervoluntarilyabandoned his legal power over the slave," the
Commissionerheld, "and in returningvoluntarilythe slave has
equally abandoned his claim to freedom." Certificateswere accordinglyissued, but they were not sufficient
to take the Garners
out of the state's possession. It was necessaryto wait for Judge
Leavitt's decisionon the habeas corpus soughtby Marshal Robinson.
Judge Leavitt's decision pointed out that he had been at some
pains to finda basis on which to hold that the slaves were in the
6
i63Ibid., March 1, 1856.
Cincinnati Daily Gazette, February 27, 1856.
The Commissioner cited Strader v. Graham, 5 B. Monroe (Ky.) 173 (1844);
10 Howard 82 (1850); and United States v. The Ship Garonne, 11 Peters 73 (1837).
See also Lexington Kentucky Statesman, February 29, 1856; Cincinnati Daily Gazette,
February 27, 1856.
64
65
62
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lawful custodyof the Sheriff.Alas, he had been unable to do
so.66
The Garnerfamilyhad firstbeen takeninto custodyby United
Statesofficers
undera warrantpursuantto theFugitiveSlave Law.
Once a personis in the custodyof the United States,even in a
civil matter,theprisonercannotbe arrestedby a state'scriminal
processuntiltheUnitedStatesproceeding
has goneto completion.7
As to thedemandsof Ohio justice,Leavittdid notdoubtthatKentuckywouldsendtheslavesbackto Ohiofortrial.The Judgemade
an orderremoving
theprisoners
fromthecountyjail intothecustodyof theUnitedStatesMarshal.
At onceRobinsoncollecteda largeforceof assistants,
servedthe
orderon Sheriff
Brashears,
and tookpossession
of theentireGamer
family.The claimantshad made affidavit
thattheyfearedrescue
of theslaves,and it was nowRobinson'sdutyunderthelaw to deliverthemsafelyin Kentucky.The slavesweretakendownto the
river,while"a largecrowdwhichhad gatheredaroundthejail followed,butwiththesilenceand orderof a funeralprocession.
They
were attendingthe funeralof the sovereignty
of the State of
Ohio." 68 Withinan hourafterJudgeLeavitthad issuedhisorder,
the Garnerswere once more in Kentucky.69
In their home state the victors were given a hero's welcome.
Marshal Robinson, speaking from the balcony of the Magnolia
House, was also acclaimed by the populace. Denouncing the abolitionists,he was proudthatthe sovereigntyof Ohio had been maintained by vindicatingthe sovereigntyof Kentucky.70He had only
done his duty,he declared modestly,yet he had taken pleasure in
performing"an act that added one morelink to the gloriouschain
66 Although Humphrey H. Leavitt privately opposed slavery, he upheld the constitutionalityof the Fugitive Slave Law. M. Joblin and Company, Cincinnati Past
and Present (Cincinnati, 1872), 87. In a later case Judge Leavitt charged the jury:
"Christian charitywas not the meaning or intentof the fugitive slave law, and it would
not thereforeanswer as a defense for violating the law." Henry Howe, Hfistorical
Collections of Ohio, 2 vols. (Norwalk, 1896, 1898), I, 979.
67 Judge Leavitt cited In re Dorr, 3 Howard 103 (1845), in which the Supreme
Court had held that no court of the United States could issue a writ of habeas corpus
except to obtain testimony,when the prisoner was under a state's civil or criminal
process. Here Leavitt held the converse to be equally true. Cincinnati Daily Gazette,
February 29, 1856.
68 Cincinnati Daily Gazette, February 29, 1856.
69 Schuckers,Life and Public Services of Salmon Portland
Chase, 174. Hiram H.
Robinson thus disregarded the order of Judge John Burgoyne not to remove the Garner children pending decision on the habeas corpus of the state.
70 Cincinnati Daily Gazette, February 29, 1856.
THE GARNER FUGITIVE
SLAVE CASE
63
thatboundtheUnion."71 Counselfortheclaimants"neverloved
theUnion as dearlyas now. It was provedto be a substantialreality." 72 The returnof the slaves was looked upon by the Lexing-
tonKentuckyStatesmanas showingthe determination
of Cincinnati"to maintainherfealtyto theUnion,"and as evidencethatthe
Southand theUnionstillhad "truefriendsovertheborder."73
The safe returnof the Garnersto slaveryhad been insuredby
of mento act as specialmarshals.Paymentbeengaginghundreds
camea pointof extreme
irritation
betweenRobinsonand CommissionerPendery.The Commissioner
felt that too manyhad been
hired,and he refusedto signan authorization.
There wereabout
400 marshalsholdingcertificates
for28 days'employment
at $2.00
perdiem;thetotalcostwas $21,456. Therewererumorsthatcerhad been issuedto personswho had not actuallyserved,
tificates
thatspeculators
had boughtup certificates
at 25 to 50 percentdisin thegambling.
counts,and thatsomemarshalshad participated
thescandalin RobinPenderywas creditedwithhavinguncovered
son'soffice.74
MarshalRobinsonmade a tripto Washingtonduringthehearto havesaid that
ingstoconsultPresident
Pierce,whowas reported
to Kentuckyat all hazards.The
theGarnerswereto be returned
PresidentreassuredRobinsonthat the deputieswould be paid,
fundswouldbe suppliedfromthePresithatifnecessary,
promising
dent's"secretservicemoney."75 Pierceinstructed
Secretary
ofWar
Davis togiveRobinsonan orderdirected
Jefferson
to thecommandantof theUnitedStatesgarrison
at Newport,Kentucky,
acrossthe
riverfromCincinnati,
to supplement
thecivilforce,if calledupon,
withtroopsnecessary
to guaranteetheorderlyexecutionof theFugitiveSlave Law. Encouragedby theseassurances,the Marshal
returned
to Cincinnatiand engagedthe large forceof assistants.
Now he was reported
to be grumbling
thatif thecertificates
were
71
Cincinnati Columbian, quoted in Boston Liberator, Marchl 7, 1856.
72 Ibid.
73Lexington Kentucky Statesman, March 7, 1856.
74Reminiscences of Levi Coffin,569; New York Daily Times, February 16, 1856;
Cincinnati Daily Gazette, February 7, March 5, April 3, 19, 21, 1856. Including the
expense of the hearings and other charges, it was estimated that the total cost of sending the Garners back to Kentucky was between $30,000 and $40,000. Ibid., April 19,
1856.
75C incinnati Daily Gazette, April 3, 1856.
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not paid, no more fugitiveslaves would be recoveredin Cincin-
nati."
The Marshal's difficulties
increased.State Judge Burgoyneheld
that the Marshal was in contemptbecause he had disregardedBurgoyne'sordernot to take the childrenout of the state. If the Marshal should offerobedienceto the Fugitive Slave Law as excuse for
his disobedienceto the state order,said Judge Burgoyne,he would
be relyingon a brokenreed, for that law was unconstitutional.77
Robinsonwas fined$300 and imprisoned.Relief fromthis sentence
was immediatelysoughtfromJudge Leavitt who set the Marshal
freeby a writof habeas corpus.The federaljudge held that Robinson had been imprisonedby the state foran "act done or omittedto
be done in pursuanceof a law of theUnited States,"78and was thereforeentitledto theprotectionof the sovereignwhoselaw he had enforced.Leavitt remarkedthatwhile a statejudge mightissue a writ
wheneverhe deemed it appropriate,once the returnto the writ
showedthatimprisonment
was underauthorityof federallaw, "his
jurisdiction ceases and all subsequent proceedings by him are
void." 79 No judge, or otherstate or even federalofficialcould, on
the basis of private views impair rightsof othersby settingaside
statutes"passed in conformitywith the formsof the Constitution.
Until repealedor set aside by the adjudication of the propertribunal, theymusthave the forceof laws and be obeyed as such. Any
otherprinciplemust lead to anarchyin its worstform,and result
inevitablyin the speedy overthrowof our institutions."
80
The melancholyhistoryof Margaret Garnercontinued.At GovernorChase's instructions,
the AttorneyGeneral of Ohio on March
6 made requisitionon GovernorCharles S. Morehead of Kentucky
forthe returnof the Garners.AlthoughGaines had indicated that
he would await extraditionproceedings,Margaret Garner was alreadyon her way down the riverto the deep South. Morehead expressedhis extremeregretand indignation,and assured Chase that
76 Ibid., April 3, 19, 1856. The Frankfort Commonwealth, February 19, 1856, remarked that the report that troops had been ordered out was "a grand hoax."
77 Cincinnati Daily Gazette, March 19, 1856. Judge Burgoyne gave grounds usually
argued against the law: that the commissionerswere improperly exercising judicial
functions.
78 Statutes at Large, IV, 634, sec. 7. This is the "Force Act" of March 2, 1833.
79 Ex parte Robinson, 20 Federal Cases 965, 968 (1856).
8O Ibid., 969.
THE GARNER FUGITIVE
SLAVE CASE
65
measureshad alreadybeen takento returnherto Kentucky.8"
Chase
was furiousat this indignityto Ohio. He smartedunder the criticismleveled at himfromantislaveryquartersforfailingto keep the
Garnersout of slavery.82The AmericanAnti-SlaverySociety took
the positionthat "it is unfortunatefor the fair fame of Ohio that
she had not a Governor,who, in such a crisiswas readyto override,
if necessary,all formsof law, and assertthe dignityand rightsof
the State." 83 The BostonLiberatorpointedout the futilityof relying on politics: "And this is all, in the last resort,that Free Soil,
Republican Governor Chase can do, either to protect personal
libertyor to vindicatethe laws of Ohio in an acknowledgedcase of
homicidecommittedon her soil! No Union with Slaveholders! " 84
On the way to the deep South, the ship carryingthe Garnerswas
in a collision, and Margaret Garner fell into the water with her
child in her arms.The motherwas rescued,the child was drowned.
Margaret Garner rejoiced that still anotherhad found death, not
slavery.8"Reportssoon reachedGovernorChase that the slave had
been returnedto Kentuckyand lodged in the Covingtonjail. Chase
sent an officer
with a requisition,but he was informedby the jailer
that the woman had been taken away the night before on orders
fromGaines.86 Denounced forthis "duplicity,"87 Gaines wrotean
indignantletter to the Cincinnati Enquirer stating that he had
twice made Margaret Garner available for requisitionby Ohio,88
but thateach timeChase had failed to presenta timelyrequisition.
Gaines doubted that the abolitionistsdesired to bringher to Ohio
at all; he chargedthat theysoughtonly to make political capital of
81Cincinnati Daily Gazette, March 14, 1856; Boston Liberator, March 21, 1856.
Samuel J. May, the famous abolitionist, felt that Chase's waiting until March 6 to
send a representativewas "an unpardonable delay." Samuel J. May, Fugitive Slave
Law and Its Victims (New York, 1861), 58.
82 May, Fugitive Slave Law and Its Victims,56; Schuckers,Life and Public Services
of Salmon Portland Chase, 175-76; Cincinnati Daily Gazette, March 14, 1856.
83 American Anti-Slavery Society, Annual Report
(New York), May 7, 1856, p. 46.
84 Boston Liberator, March 7, 1856.
85 Louisville Courier, March
10, 1856, quoted in New York Daily Times, March
14, 1856.
86 Schuckers,Life and Public Services of Salmon Portland Chase, 176; Cincinnati
Daily Gazette, April 11, 1856.
87 Cincinnati Daily Gazette, quoted in May, Fugitive Slave Law and Its Victims,
59.
88The Frankfort Commonwealth reported on March 11, 1856, that Margaret Garner had been in Frankfort since March 8, and that Gaines had brought her there to
"be the more immediatelysubject to any order the Governor of Kentucky might make
in the premises."
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the entireaffair.He promisedthat as soon as he learnedof the
slave'swhereabouts
he wouldpublishit in theCincinnati
papersso
thatstateauthorities
couldreach
mightknowwheretheirrequisition
her.89
herpermanent
However,ifinformation
concerning
homeever
became available to Gaines he failed to make it known. Nothing
was everheard of Margaret Garner again.
Failure to regainpossessionof the Garnersfor trial deeply disturbedthe people of Ohio. The assertionby United States courts
that the Fugitive Slave Law took precedenceover Ohio's personal
libertyand criminallaws seemed a grave imputationof theirdignity.When the second Garner child died by drowningpublic feeling was exacerbated.The angrystate legislatureenacted a law requiringstateofficers
to take personsout of the possessionof United
States authoritiesupon the issuance of a state writ of habeas corpus,90and denounced the Fugitive Slave Law as unconstitutional
and "repugnantto the plainest principlesof justice and humanity." "' These circumstancescould only resultin a heightenedconflictbetweenOhio and the federalgovernment.It was out of cases
such as that of Margaret Garner that frictionbetween free states
and thenational governmentgrewinto increasinglybitterhostility.
89 Gaines to Cincinnati Enquirer, April 14, 1856, quoted in Covington Journal,
April 19, 1856. Chase doubted that "she was in fact ever brought back there." Chase to
Trowbridge, March 13, 1864, Schuckers,Life and Public Services of Salmon Portland
Chase, 176.
90 cts of a General Nature and Local Laws and Joint Resolutions Passed by the
Fifty-Second General Assembly of the State of Ohio (Columbus, 1856), April 5, 1856,
p. 61.
91Ibid., April 11, 1856, p. 247.