Trayvon and the fugitive slave mentality

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 McLean, associate justice of the U.S. Supreme Court. Delany's philosophical analysis of McLean'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.

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 McLean'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 McLean 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 McLean 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?

In contrast to Judge McLean, 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 sections 776.032 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 McLean, 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 advice of a 911 dispatcher, he complained, using an expletive to refer to Trayvon, that they "always get away."

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* 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).
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