Since President Trump’s inauguration in January, US immigration authorities acting on behalf of his administration have arrested people without warrants. They have detained people in ways that prevent their access to legal counsel. And, in defiance of court orders, they have sent people to foreign prisons where they have been pressed into hard labor. This assault on due process is premised upon the assertion that non-citizens have, in the infamous words of Chief Justice Taney in Dred Scott, “no rights” that the United States government “is bound to respect.” In the words and deeds of the administration, this applies not only to undocumented immigrants, but to legal residents who dare to exercise their first amendment rights, American citizens who are not carrying explicit proof of citizenship, and citizens whose parents are being deported.
As someone who studies the 1850s, this is all depressingly familiar. Before the Civil War and emancipation, enslavers and their political supporters insisted that black Americans (enslaved and otherwise) were not entitled to the protection (equal or otherwise) of the law. Thus, for many black Americans—such as Margaret Morgan, whose kidnapping was ratified by the Supreme Court in Prigg v. Pennsylvania—the rights of due process and habeas corpus were not guaranteed but contingent. If you could get into court and find a friendly judge, and if that judge could force the enslavers and their government allies to obey court judgments, you could assert your rights and hope they would be respected. Yet even so, the chance that you would be “disappeared” into the deep south and consigned to the hardest of hard labors in the cotton fields was high. And it was all too easy and common for people to be disappeared with no process and no recourse.
The Trump Administration’s open rejection of due process and equal protection is a terrible reprise of the worst of antebellum America. But since this has happened before in this country, history can serve as a source of optimism as well. In this brief post, I want to look back at one largely forgotten case: the kidnapping, arrest, and defense of Horace Preston. Preston’s case both illustrates the dismal parallels with the present and helps illustrate the role the law played in resisting slavery 1850s. Preston’s lawyers, in partnership with the multiracial abolitionist movement in New York City, engaged in a detailed, strategic practice of direct representation that sought simultaneously to protect their client and to dismantle the system that threatened him. But they also understood that legal representation, by itself, would not bring about the change they sought. Instead, they used the courtroom as a site of public contestation, as an opportunity to build political power and galvanize the public.
Legal Resistance
In 1852, Horace Preston was a black man living freely in New York City. He was married with children and gainfully employed in a city and state where slavery was illegal. Five years earlier, Preston had left Baltimore where a man named Reese had claimed to own him and his labor. Like many other men who claimed property interest in other men, Reese was incensed by the loss of what he claimed was “his” and hired agents to seek out Preston. One of these agents had a connection in the New York Police Department, and he managed to get an officer named Martin to arrest Preston on a pretextual charge. Once Preston was locked up in the city jail (known at the time as “the tombs”), Martin contacted Reese who rushed to New York and, with his agent Busteed, initiated the process of enslaving Preston under the terms of the Fugitive Slave Law of 1850.
The Fugitive Slave Law of 1850 was infamously part of the “compromise” of 1850 wherein Southern states demanded that the Federal Government do more to “protect the property rights” of slaveowners. The law created a summary process system where federal commissioners were appointed and empowered to authorize federally sanctioned slave-catching posses. The process before these commissioners was blatantly unfair to those alleged to be slaves. The putative owners were essentially allowed to present their evidence unchallenged while those threatened with enslavement were barred from testifying. Perhaps most outrageously, commissioners were paid $10 if they determined that a person should be enslaved, and only $5 if they set them free. The law also made it a crime for anyone to help alleged fugitive slaves avoid capture or escape.
Northerners were outraged by the law, and its passage sparked an immediate political backlash. In the hometown of Daniel Webster, one of the main northern architects of the compromise, the law was denounced, as was Webster. Along with the outrage came resistance. Almost immediately, abolitionists and abolitionist lawyers began to use the processes of the law, however minimal, as tools of resistance. They leveraged delay, state habeas proceedings, appeals to federal court, and anything else they could to slow down the proceedings and build political support for the people in custody. As I’ve written at length elsewhere, these efforts were surprisingly effective. In fact, nearly 40% of all people caught in the dragnet of the law ended up free—through escape, exoneration, or by having their freedom purchased.
By 1852, Reese and Busteed were well aware of the risk of legal resistance as they tried to enslave Preston. This is why Preston was imprisoned on bogus charges in the first place. Once Reese arrived in town, they tried to bring his case to the pro-slavery Commissioner Morton before any of the abolitionists in town could find out. Indeed, Preston was already before Commissioner Morton when the anti-slavery lawyers Erastus Culver and John Jay rushed to the courthouse to take up his defense. Preston was, by that point, minutes away from summary enslavement and being bundled back to Baltimore, but Culver and Jay were able to intervene and slow the process down. They prolonged cross-examination and sought to call more witnesses. Crucially, they were able to extend the trial until the next day, buying Preston one more night with his family, and buying time for the abolitionist activists in New York to begin to rally resistance. Busteed and Reese were enraged, and Morton was not happy, but they had been outmaneuvered.
That next day was a doozy in court. Jay and Culver filed a motion for habeas relief in state court (which caused delay but would ultimately fail). Before Commissioner Morton, they called Busteed to the stand and accused him of conspiring to have Preston arrested on false charges. Busteed was indignant, and he leapt out of the witness stand to slap Jay across the face. Jay and Culver then moved to dismiss the case, and Morton adjourned the hearing to consider the motion. Preston had one more night with his family and more time to organize. The next morning (a Saturday), Jay and Culver expected to continue their case, but Morton surprised them by coming into court with a ruling on their motion (rejected) and a signed order relegating Preston to slavery. By the end of the day, Preston was headed to Baltimore and slavery.
There would be little optimism in this story if this were where it ended. However, during the trial, Busteed and Reese had indicated that they would accept $1500 as a price to buy Preston’s freedom. This was a huge sum (more than $60,000 in today’s terms), and neither Preston nor his lawyers could gather it immediately. However, the trial had made the newspapers and when Morton acted summarily to cut off Preston’s argument, it provided Jay and Culver with an opportunity to tap into anger against the Fugitive Slave Law and organize support for Preston. Not only was this outrage a rich source of political conversion and organizing, but it also was a powerful fundraiser. After a month, Preston’s allies had collected enough money to purchase his freedom, and he returned to New York to be reunited with his family.
Building Political Outrage
It’s easy to see the resonances between the calumnies of the Preston case and the present cases of men and women who have been disappeared with little or no legal process. In that resonance, it’s also easy to feel despair as new horrors echo old ones. But the full story offers something more than despair. Just as Culver and Jay and the abolitionists in New York used Preston’s case to organize for him and against the law they abhorred, there is a ton of room for movements and lawyers adjacent to movements to build public outrage against the federal policies and in support of those who have been and are threatened with deportation and disappearance.
It turns out that when the government acts this horribly, it makes people angry—and anger fuels resistance which over time builds an opposition politics. We are already seeing this in courts and in the polls in response to the government’s El Salvador travesties. As the government continues to violate the foundational constitutional promises of equality and due process, lawyers, activists, and politicians need to fight back—both to gain what legal victories are available through the courts, but also to galvanize public opinion in cases where our legal system aids such injustice.
In the 1850s, resistance to slavery helped build the foundation for one of the most radical shifts in American life and politics—Reconstruction. That Reconstruction was so short-lived, and that its promise was never fully achieved is a story for another essay. We are living through another upheaval of our political, legal, and social order. Like it was in the 1850s, that upheaval is attended by official acts of brutality that are and should be outrageous to decent people. Resisting these outrages is not only morally exigent, but it is how we build a politics that will reject this brutality and might form the foundation of something better. We should be, and we should remain, outraged. We should be all the more outraged that the present is repeating the worst parts of our past. But we should not let that outrage lead us to despair. Feeling the outrage and resisting the outrages are generative acts of resistance—inside and outside of courtrooms.
