MARCH 26, 2020
BRIAN MCGINTY IS an enormously talented storyteller and historian. He has a journalist’s sense of how to ferret out facts and stories and weave them together. His new book, Archy Lee’s Struggle for Freedom, cleverly uses the story of the slave Archy as a window into California’s first decade as a state.
At one level, this is fine legal history. McGinty has sorted out an enormously complicated case involving a Mississippi-born slave, Archy, whose master, Charles Stovall, brought him to Gold Rush California, a free state. Stovall then tried to ship him back to Mississippi. Friends of Archy intervened. There were at least four sets of legal proceedings in different courts, with Archy in and out of jail for safekeeping, hidden by his friends, seized illegally (kidnapped) by Stovall, and also returned to Stovall after a court proceeding. At one point, Stovall was formally charged with kidnapping, and was bailed out, while his victim, Archy, remained in jail because he was possibly a fugitive slave. Confusing? You bet. But McGinty does a fine job of sorting it all out.
This book is also, at least in part, a saga of the Wild West woven into the culture of the antebellum slave South. There are vigilantes lynching alleged “bad guys” (who are white). There is a duel provoked by a fanatical and violent transplanted Southerner — and sitting justice on the California Supreme Court — who kills a United States senator. The California justice was later shot dead by the bodyguard of a United States Supreme Court justice when he physically attacked him. There is a quick-tempered proslavery Southern lawyer who threatens to pull his gun in a courtroom when he does not like the arguments of the opposing counsel. Mobs help rescue Archy from his owner. And there is a helpful businesswoman and real estate investor, who is a stalwart of San Francisco’s black community. She harbors Archy for a while.
At another level, this book reminds me of Forrest Gump, except that it all really happened. Parading across the book are many of the key figures in California’s first decade as a state, as well as some significant national figures. We encounter, for example, Edward Dickinson Baker, a close friend of Abraham Lincoln and an Illinois congressman before moving to California. He served as Archy’s lawyer for part of the saga. After the case, Baker relocated to the new state of Oregon where he was elected to the US Senate and then killed in action serving in the United States Army at the Battle of Ball’s Bluff. He thus became the only sitting US senator to die in service of his country. President Lincoln, who personally grieved the death of his friend Baker, makes a cameo appearance in the book. We meet David C. Broderick, a US senator from California (and friend and colleague of Baker) who became the only sitting member of that body to die in a duel. His challenger (and killer) in the duel, Justice David S. Terry of the California Supreme Court, was later himself shot to death when he attacked his former colleague on the California bench, US Supreme Court Justice Stephen J. Field. Justice Field’s brother, Cyrus Field, also makes a cameo appearance as the multimillionaire entrepreneur who laid the Atlantic cable in 1858, allowing for international telegraph communication. We run into Henry Halleck, who would be the highest-ranking Civil War general in the US Army until Ulysses S. Grant superseded him. There is also Edwin Stanton, who despised Halleck, but during the Civil War, as Lincoln’s Secretary of War, Stanton would be Halleck’s immediate supervisor and would have to work with him. Edwin B. Crocker, a dedicated abolitionist who fled Indiana after being successfully sued for helping Kentucky slaves escape and then served on the California Supreme Court, passes through the book. So too does Charles Crocker (Edwin’s brother), who was briefly one of Archy’s lawyers and later one of the Big Four (along with Leland Stanford, Collis P. Huntington, and Mark Hopkins) who built the Central Pacific Railroad; and Mary Ellen Pleasant (better known as Mammy Pleasant), a successful San Francisco black entrepreneur and real estate investor, who hides Archy at her home. Swirling around all these people was Archy Lee, an 18-year-old Mississippi slave.
Three aspects of McGinty’s history are particularly important. First, he offers an excellent overview of California’s small, but active, antebellum black community. This community in Sacramento and San Francisco rallied to support Archy. Some even hid him from his owner and the police. This community activism ultimately helped prevent his return to slavery. I suspect most readers will be surprised at the level of community activism and its impact on the state. Despite not being allowed to vote and facing other legal discrimination, blacks built institutions for their community, some blacks acquired property, and the community was both politically conscious and politically active. Blacks in California raised money for Archy’s defense within the state and in the nearby Nevada territory.
Second, McGinty reminds us how in its first decade California was mostly controlled by proslavery transplanted Southerners. They had no realistic hope of turning the Golden State into a slave state, but they were intent on making California a friend of slavery and the South. McGinty notes that with one major exception (US Senator David Broderick, who was killed by Justice Terry) the political establishment in the state was shockingly proslavery. McGinty does not pursue the implications of this for national politics. The admission of California in 1850 is seen as a victory for the North (and freedom) in the Compromise of 1850. In hindsight, this might be true. But at the time, it was not so clear. After all, while California came in as a free state, the Compromise also opened up the rest of the Mexican Cession to slavery, and many expected the rest of this new territory — the present-day states of New Mexico, Arizona, Nevada, and Utah — to become slave states. The Mormons in Utah had already established slavery, and on the eve of the Civil War New Mexico passed a slave code and sought admission to the Union as a slave state. The 1856 presidential election illustrated the proslavery nature of antebellum California. The Golden State supported the proslavery Democrat James Buchanan over the anti-slavery Republican John C. Frémont, even though Frémont had been a hero in seizing California from Mexico in the Mexican-American War. It is always dangerous to offer a counterfactual history of what “might” have happened, but McGinty provides persuasive evidence that even if California was not about to adopt slavery, it was clearly a fellow traveler and ally of the slave South. This history makes this book even more important than McGinty may realize. Sometimes historians over-argue their findings. If I have a criticism of McGinty, it is that he is too modest in his conclusions and analysis. He has told a fine story, but he could have made it into an even more important one.
Finally, McGinty gives us the legal history of Archy’s case, which, in 1858, was the penultimate case in free state courts involving sojourning slaves and slaves-in-transit. The final case, Lemmon v. The People, was decided by New York’s highest court in 1860. Politically and jurisprudentially Lemmon was far more important than Archy’s case — although not nearly as dramatic — because it came from the biggest and economically most important state in the country. In this case, a trial judge freed eight slaves owned by the Lemmon family when they came to New York for a day or two to change ships for direct passage to New Orleans. The slaves owned by the Lemmons went free and headed off to Canada, and the Lemmons themselves were compensated by New York business leaders who did not want to cause a sectional crisis. But the state of Virginia appealed the case in Lemmons’ name, and after losing in the New York courts in 1860, Virginia was preparing to take the case to US Supreme Court. The Lemmon case was a significant controversy from 1852 until the Civil War began.
Archy’s case was legally similar. Like the Lemmons, Stovall had taken a slave to a free state, where under local law he was entitled to be free. In broad strokes, the issue was: What was the status of a slave that an owner voluntarily brought into a free state? The US Constitution (through the Fugitive Slave Clause) required that slaves who ran away from the slave states “be delivered up on Claim of the Party to whom such Service of Labour may be due.” To enforce this provision, Congress passed the Fugitive Slave Laws of 1793 and 1850. The 1850 law led to enormous controversies and a dozen or so riots and rescues or attempted rescues of fugitive slaves. Despite the fact that the overwhelming majority of captured fugitives were returned to their Southern owners, by 1860 many Southerners believed hostility to the enforcement of the 1850 law justified secession.
More complicated was the problem of a slave who had not run away to a free jurisdiction, but had been taken there by a master. In 1772, in Somerset v. Stewart, Great Britain’s highest court ruled that, while slavery was legal in its American colonies, no one could be held as a slave in the British Isles. Lord Chief Justice Mansfield of the Court of King’s Bench held that
[t]he state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory, it’s so odious, that nothing can be suffered to support it, but positive law.
Thus, the slave Somerset went free because there was no law in England establishing slavery. After the case, almost all the slaves in the British Isles quickly became free people. In the 1780s and 1790s, a few Northern states adopted laws specifically allowing masters to visit with their slaves for a limited time, such as six or nine months. In 1836, the highest court in Massachusetts ruled in Commonwealth v. Aves that any slave brought into the state immediately became free. Connecticut adopted this rule in 1837. By the time California entered the Union almost every Northern state had adopted this rule, generally known as the Somerset principle.
Meanwhile, in October 1857, Charles Stovall, a Mississippi slaveowner, arrived in Sacramento with his slave Archy. They had traveled across the continent together to the Golden State. Stovall, who was well educated for the era, soon opened a school. By January 1858, Stovall had apparently tired of California, and made plans to head back home, taking a steamship to Panama, where he could cross the Isthmus and then proceed to New Orleans and then Mississippi. He planned to take Archy with him. Archy, who wanted none of this, ran away. He was found hiding in a black-owned hotel, the Hackett House, and arrested. Immediately blacks and whites in the city found counsel, including Charles Crocker. They filed a writ of habeas corpus, and Archy’s complicated legal journey began.
The jurists in California should have immediately set Archy free under the well-established principles in the Somerset and Aves cases, mentioned above. But it wasn’t that simple.
California had no laws creating slavery, and the state constitution specifically prohibited it. Virtually every other free state had followed Somerset and the Massachusetts precedent in Aves. It seemed to be an open-and-shut case that Archy could not be held as a slave in California. The California Supreme Court sort of agreed with this, holding that under the state’s constitution no one could own a slave in California. The facts showed Stovall had moved into the state, opened a business, and had become part of the community. Thus, he could not legally hold a slave in the state. But, in a remarkable, and utterly incoherent conclusion, the Court decided otherwise:
This is the first case that has occurred under the existing law; and […] the petitioner [Stovall] had some reason to believe that the constitutional provision would have no immediate operation. This is the first case; and under these circumstances we are not disposed to rigidly enforce the rule for the first time. But, in reference to all future cases, it is our purpose to enforce the rules laid down strictly, according to their true intent and spirit.
Thus, the Court remanded Archy to Stovall, who then attempted to take him out of the state.
McGinty clearly explains the reason for this weird and illogical decision. The state’s Supreme Court was dominated by two ex-Southern slaveowners. The court was led by Chief Justice David S. Terry, who grew up in Texas and was deeply proslavery and unrelentingly racist. He would return to Texas when the Civil War began and serve as a colonel in the Confederate Army. He was one of the many proslavery politicians of early California.
A flurry of legal maneuvers then took place. One court said Archy might be a fugitive slave, and thus should be remanded to his master. But under the Fugitive Slave Law of 1850, that was for the US commissioner to decide. The commissioner, George Pendleton Johnston, a transplanted Southerner, ultimately ruled — correctly — that Archy had never escaped from a slave state and thus was not a fugitive slave and could not be remanded to Stovall. The Mississippian nevertheless seized him (for which is he was charged with kidnapping) and tried to take him out of the state. In the end, there was a dramatic rescue at sea, as San Francisco police boarded a steamship to prevent Archy from being taken back to Mississippi. When the dust cleared, Archy left for British Columbia and Stovall went back to Mississippi empty-handed.
This is a fun book with a great California story. But it has three important messages. First, it shows that human freedom and dignity really do matter, and in the late 1850s a significant number of Californians, white and black, were willing to take risks to preserve the liberty of an 18-year-old man they did not know. Second, it reminds us that who sits on the courts matters and matters a great deal. Finally, the story reminds us that tenacious lawyers and community activists can team up to protect liberty and defeat tyranny.
Dr. Paul Finkelman is the president of Gratz College in greater Philadelphia. He is also a historian, whose most recent book, Supreme Injustice: Slavery in the Nation’s Highest Court, was published by Harvard University Press in 2018.