Wednesday, March 28, 2012

Fugitive Slave Mentality

March 27, 2012, 9:45 PM

The Stone
The Stone is a forum for contemporary philosophers on issues both timely and timeless.
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.

The message from a Michigan judge: If a white man is pursuing a black man, don’t interfere.
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.
Martin R. DelanyWest Virginia University LibraryMartin R. Delany
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?
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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 sections776.032 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 orders of a 911 police officer, he complained, using an expletive to refer to Trayvon, that they “always get away.”

Robert Gooding-Williams
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).


Share your thoughts.
    • Ann
    • California
    As others have said, every police officer who fires a bullet is subject to an investigation. If the Sanford police chief Bill Lee Jr. is giving Zimmerman a pass, he is essentially saying that the restraints that govern police use of weapons of deadly force --- don't apply to private citizens.
      • Brian
      • Penarth, Wales, U.K.
      I believe that escaped slaves were thought to suffer from "drapetomania". This was an imaginary disease coined up by a doctor to explain the desire of the slaves to escape. I wonder if this will be dredged up in this case.
        • A.L. Hern
        • Los Angeles
        There seems to have been a huge flaw in the Fugitive Slave Act: upon a slave-owner's claim that a black family like the Crosswhites are his property, all it would take is for ANOTHER white, say an abolitionist, to come forward and make the same claim. Since the law required no documentation of ownership, a legal stalemate would prevent either from taking possession. If the competing claims were to be moved into a court of law, the parties would presumably then have to make their claims under oath.

        Similarly, one would like to believe that George Zimmerman might not be so quick to make his own claims were he subject to criminal penalties for perjuring himself, especially since the audio recording from Trayvon Martin's girlfriend's phone of the confrontation between Mr Zimmerman and Mr Martin seems to undercut many of Mr Zimmerman's assertions.

        One can only hope that the Florida State's Attorney will put Mr Zimmerman under oath so that at he might, at least, be subject to penalties for perjury.
          • Meredith
          • New York
          NYT Pick
          What was the real justification for passing ‘stand your ground’ laws? If self defense is already taken into account in our laws, they’re not needed. This gives rationalizations to any person harboring destructive ideas about other groups, who seem alien to him. He can truly feel that he is defending himself from attack. The status of victim and predator can easily be reversed in the minds of the participants in violence.

          I think your points are well taken, and bring a not often discussed aspect of our history into discussion. People need to know about this and the psychological mechanisms that operated during the times of slavery, then continued during the reconstruction era, and carried over into our segregation system—the last during the lifetimes of many people walking around today. We still see the remnants of this, despite all our tremendous progress.

          Sometimes old systems of thought surface in modern times, after much progress.. These prejudices update and adapt to the new zeitgeist in any way they can. It’s not acknowledged,or if it is, people say it’s exaggerated and we have moved beyond that. They think, we are not prejudiced, and since we aren’t, therefore our treatment of minorities is not the result of prejudice, so therefore it must be justified.

          In this bizarre Sanford shooting, unconscious psychological assumptions are operating,coming from out of nowhere it seems. Many of the people concerned probably are under the illusion they are doing right.
            • Bruce Crossan
            • Lebanon, OR
            NYT Pick
            Let me introduce you to the mathematical concept of proportional equality. Simply stated, if we know the ratio (proportion) of x to y, and if a and b are similar to x and y, but, say, we only know a, then we can set up a proportion x/y=a/b, such that if we cross multiply, we get b=(x)(a)/y. Why bring this up? Let's just say I don't feel the affinity.

            To be equivalent to the Crosswhite case, Mr. Zimmerman would have to go to some state, that doesn't have a Stand and Deliver Law (okay, Ground), shoot a black person, and then expect to have the law treat him as it is doing in Florida. I'm not saying that law enforcement,where I live, is more saintly than other parts of the country: I'm saying that the shooting of Treyvon Martin and the Crosswhite case, including the instructions of Judge McClean (a case of vigilante-ism with a John McClean involved; I am so tired of Die Hard movies), are not equivalent cases; legally or philosophically.

            The shooting of Treyvon Martin makes my heart weep. However, I really question if trying so hard to connect the case to slavery, is going to help. There are plenty of valid, current, aspects, about the case, both legal-- access to lethal weapons, vigilantism, appropriate use of force-- and philosophical-- when, if ever, is the taking of a life justified, how much is a person's live worth-- that can be questioned and discussed; all of which have a better chance having an impact on society than re-fighting the Civil War ever will. bc
              • Slooch
              • Staten Island
              Before we go much farther, let's back off from convicting Zimmerman without a trial. Let's just argue that there was probable cause to arrest him, and there is probable cause to indict him. The failure to arrest and indict is probably more disturbing than the shooting itself -- even though it's horrifying to listen to the 911 tapes.
                • Mike 71
                • Chicago Area
                Zimmerman's plea of self-defense under Florida;s "stand your ground" law is disingenuous, particularly where he was the initial aggressor, who followed Trayvon Martin, despite police orders to desist, then confronted and shot him without legal justification!

                The proper application of the "stand your ground" law was explained in Naples, FL. j\Juvenile court case, in which a student fatally stabbed a bully who attacked him after leaving a school bus. A person who is doing nothing illegal and is in a place where he is entitled to be, may use deadly force if he reasonably believes it is necessary to prevent death, or serious bodily harm to himself. The court's opinion i linked to the article and should be carefully read for a detailed explanation of the defense!

                  • Richard Luettgen
                  • New Jersey
                  Both the consequences of the Fugitive Slave Law and the details of Trayvon Martin's recent death in Florida are tragedies. And Justice McClean's 1847 instructions to take a white man at his word that an arrest target was an escaped slave are outrageous by today's standards.

                  But comparing the attitudes of antebellum America with those of Florida today, is unreasonable. When an altercation takes place, as is alleged, and a person is killed as a consequence by another, and there are no eye-witnesses to the event yet the survivor claims self-defense and is legally entitled to both carry a gun and defend himself with it, it's seems hard to challenge the assertion, particularly when Zimmerman provided physical evidence supporting a claim that Martin pinned him to the ground and struck him (wet grass on his back, bloody back of his head). This could be a case of racism and craziness on Zimmerman's part, or it may not be: maybe we should wait for the inquiry to run its course to decide.

                  But, given the evidence that did exist, what else was Chief Lee to do? When have we empowered police to arrest people who commit acts which are not clearly unlawful, and when exculpatory evidence exists?

                  In any event, McClean's 1847 instructions clearly were racist, for precisely the reasons Mr. Delaney outlined in his letter. Chief Lee's actions, in far more enlightened times, do not offer either the same clear-cut qualities, and are not comparable to McClean's in any way.
                    • Joe Schmoe
                    • Brookyn
                    Sloppy piece of analysis. The fugitive slave law applied specifically to black people. The stand-your-ground law can work for or against any person of any race. The argument made here would be credible if evidence were presented that no person of any other race had been killed or maimed under suspicious circumstances, only to have the stand-your-ground law work in favor of the assailant and denying the victim a reasonable shot at justice. I don't see any evidence of that sort prevented here.
                      • RoughAcres
                      • New York
                      • Verified
                      Though it grieves me that this case is being tried in the court of public opinion (there seeming to be no actual court case or charges forthcoming), it outrages me that the public discussion centers around the "rightness" of Mr. Zimmerman's defense - killing an unarmed teenager because he "felt" threatened.

                      Where were Trayvon Martin's rights? Had he been armed as well, and had killed Zimmerman, would the courts or the police have accepted HIS word that he "felt" threatened?

                      No one deserves to die because another person "feels" he/she is a threat. That is the purpose of hate crime legislation; that is the purpose of investigation into such a killing.

                      That the police chose simply to take Mr. Zimmerman's word for what happened is more than a tragedy - it is a denial of Trayvon Martin's civil rights.
                        • Linda
                        • Oklahoma
                        • Verified
                        How can anybody follow a pedestrian in a car, then get out and stalk him against the advice of the police and then claim self-defense? If Zimmerman just stayed in his car and let the kid walk home with his Skittles, none of this would have ever happened. Zimmerman wanted something to happen or he wouldn't have confronted a kid who was doing nothing more than walking home with a bad of Skittles.
                          • Canis Scot
                          • Lost Angeles, ca

                          There are eyewitnesses that positively state Trayvon was on top of George and beating him.

                          That is classic self defense.
                        • martin weiss
                        • mexico, mo
                        • Verified
                        The systemic problem with injustice, aside from the suffering of its victims, is that it disables its proponents. No human society has long survived systemic injustice. If there were a reason, beside the innate longing in the human mind for enduring values, to establish justice and equality in the founding framework of American government, it was to ensure its viability and longevity. The framers of the Constitution were focused on forming an enduring institution which might secure freedom and human rights forever. They knew once freedom and justice had a foothold in lawful government it would spread like wildfire and its light could never be extinguished. Those who malign others for their origins are cut off from not only the present reality, but also future prospects. 'We hold these truths to be self-evident. That all men and women, no matter their religion or the color of their skin, are endowed by their creator and the laws of nature with inalienable rights, and that among these rights are life, liberty and the pursuit of happiness.' Whites considering wholesale violation of others' rights should consider that soon whites themselves will be a minority and the shoe will be on the other foot. All rights come with responsibilities. When responsibilities are neglected, rights become useless. Bigots are lambs being led to the slaughter by those who would divide and conquer the human family. "Everybody counts or nobody counts."-- Michael Connelly
                          • ed connor
                          • camp springs, md
                          It may be in Mr. Zimmerman's best interest to cop a plea to a federal civil rights charge.
                          He might then be elligible for some type of witness protection program.
                          If he returns to Sanford, Florida, he will not be able to obtain any type of life insurance at any price. He will forever be a man without a country.
                            • olga brajnovic
                            • Pamplona, Spain
                            Witness protection? he is not a witness. Is a part in all this. If the police would arrest and interrogated him take evidences seriously on the first place he would have not need to be hiding. He would be under the protection of the same police, arrested waiting a trial.
                            • DW
                            • Philly
                            What do you mean, 'cop a plea'? He hasn't been charged with anything, that's the whole point!!

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