Excerpted From: Jason A. Gillmer, Litigating Slavery's Reach: A Story of Race, Rights, and the Law During the California Gold Rush, 56 Loyola of Los Angeles Law Review 499 (Spring, 2023) (423 Footnotes) (Full Document)


JasonAGillmerAround midnight on May 31, 1852, while sleeping in their tent in the gold mining region of Northern California, Carter Perkins, Robert Perkins, and Sandy Jones awoke to find themselves staring down the barrel of a gun. It was a chaotic and frightening moment. Standing above them were the shadowy figures of several men. One said he was the sheriff, and another said he was the local constable. The others appeared to be miners, each having followed the rush of primarily young, single men to the Sierra Nevada foothills after gold was discovered near Sutter's Mill four years before. The charge the sheriff and the ragtag group of men leveled against the other three, however, was hardly typical of what one might hear in gold country. There was no allegation of stolen provisions or of mining another's claim. No one suggested that the other three had cheated in a card game or that one of them had danced the fandango with someone's female companion. Rather, the group accused Carter, Robert, and Sandy of being slaves, and informed them that their owner wanted them back.

The men who sought to return Carter, Robert, and Sandy to slavery said they were acting under the authority of the California Fugitive Slave Act of 1852. The legislature had passed the law a month before the sheriff and his posse pushed their way into the remote camp near the American River, following years of contentious debates over slaves and slavery in the expanding West. Two years earlier, California entered the Union as a free state. But the express constitutional provision proclaiming that “neither slavery nor involuntary servitude” shall exist in the state did little to quell the ambitions of Southerners who sought to bring their slaves into the country to mine for gold, tend livestock, and extend their empire to the Pacific. With the California Fugitive Slave Act (the only one of its kind in the country), the slaveholding contingent and their Southern-born Democratic allies had finally secured a victory, ensuring that the slaves they brought into the region before statehood would remain slaves, and that the local government would assist in capturing any who thought differently. But the Act also served a more fundamental purpose, signaling in the decade before the Civil War that persons of color could expect few differences in white attitudes towards race in the ever-expanding West. If Californians could not keep people of color out, at least they could limit their basic rights, denying freedom to some even in a free state.

Following the chaotic encounter in the cabin, the sheriff's posse hustled Carter, Robert, and Sandy into a wagon led by a team of mules the three men had purchased with their own earnings. It was still the middle of the night; nonetheless, they took a “circuitous route” out of the mining settlement in an apparent effort to avoid encounters with any friends of the prisoners who might interfere. By the time the sun rose over the mountains, the group was ten miles from camp and a day's journey from Sacramento, where B.D. Fry, a justice of the peace sympathetic to Southern values, sat ready. In a summary hearing, Judge Fry found that Carter, Robert, and Sandy were the slaves of Charles Perkins, the cousin of one of the men who abducted them under cover of night, and declared them fugitives from labor. His order set off a furious response in the Black community and among a handful of antislavery activists--including a young lawyer named Cornelius Cole--but it also sparked an equally strong reply from the supporters of slavery. By the time the California Supreme Court heard oral arguments later that summer, it was clear that the issues that were plaguing the rest of the country in the time before the Civil War were very much a part of the West, namely, what should we do when slavery ran headfirst into freedom?

The case of In re Perkins stands at an intriguing crossroads of race, rights, and law. Set in the context of the California Gold Rush, it provides a unique opportunity to reflect on the role of slavery in California, both in the conversations happening at the national level and in the daily lives of people who came. The West, at least in the popular mind, has always factored prominently in the image of the self-made man. It was a place where rugged individualism and a cando spirit triumphed over nature and adversity. Out there, in the cold riverbeds of the Sierra Nevada, persons from humble beginnings could stake a claim and make a decent living, regardless of family connections or prior successes. Under this version, under which the West takes on an almost mythical identity, there is little room for stories like In re Perkins and the realities of nineteenth-century American slavery. This was supposed to be a place for the hardworking and the free, not wealthy owners like Charles Perkins and the three men he enslaved.

As cases like In re Perkins demonstrate, however, the story of the West in general and California in particular is far more complicated than popular mythology suggests. Not only were enslaved people present in the region-- estimates range from 500 or 600 to as many as 1,500 even after slavery was outlawed under the Compromise of 1850, it continued to cause disruptions and controversy, both at home and in the rest of the country. With thousands of people of color participating in the local economy and asserting their rights, many white Californians lashed out against African Americans with the same vigor as residents of the older states in the Union. And it was not just the enslaved; free people of color were neither wanted nor welcome. “No population that could be brought within the limits of our territory could be more repugnant to the feelings of the people, or injurious to the prosperity of the community, than free negroes,” Morton McCarver of Kentucky announced during the California Constitutional Convention. “They are idle in their habits, difficult to be governed by the laws, thriftless, and uneducated. It is a species of population that this country should be particularly guarded against.”

This Article recreates the story of In re Perkins to highlight the importance of slavery in California's history (even after it was outlawed) and to explore the experiences of those who suffered under it. To that end, this Article is part of a growing body of literature focused on the borderlands and the South's efforts at empire building. There was a time when the Western states and territories were left to the periphery of discussions about slavery and the Civil War, as scholars approached the growing sectional crisis and its aftermath along a North-South axis. Over the last decade and more, however, scholars have greatly expanded our understanding of the period by focusing our attention on those very places where Northerners and Southerners projected their hopes and dreams--places like Kansas, Texas, Mexico, New Mexico, California, and Cuba. With a different orientation, it becomes clear that the battle over slavery and freedom was a national one, with the future of the country depending as much on the old battlegrounds in the North and South as the new ones to the West.

Framed as such, this Article finds a comfortable home among the work of those Western historians who have been working to unravel the popular myth of the West as a land of rugged individualism and free (white) labor, casting it instead as a racially diverse place with multiple stories to tell. But with the added perspective of a national spotlight, the Article becomes very much about bridging, as Stacey Smith has put it, “the chasm between the history of the American West and the history of American slavery.” Indeed, In re Perkins involved the same question that was being litigated in other parts of the country and would eventually be at play in Dred Scott v. Sandford, surely the most infamous and most controversial decision in Supreme Court history. The fundamental question involved the status of an enslaved person brought freely onto free soil. Foreshadowing the holding in Dred Scott by five years, the decision in In re Perkins left an indelible mark on constitutional jurisprudence and the extent of slavery's reach.

As much as this Article is about situating the West into the national discourse over slavery, however, it is also very much a local, on-the-ground narrative about slavery in California. The Article does not begin with the Supreme Court's decision in Dred Scott or even the California Supreme Court's decision in In re Perkins. Rather, it ends there, with much of the work spent recreating the story from the bottom up, from the decision to go west, to life in the gold mines, to the actions in the lower court. Told from the perspective of the main characters in the case, the approach fosters a nuanced discussion of the issues playing out on the bigger stage. Drawing on a host of primary sources--often found only by time-consuming trips to local courthouses, libraries, and museums--the purpose is to explore the experiences of real people, both Black and white, as institutions and racial attitudes expanded westward along with the people who came.

To that end, this Article taps into an emerging body of literature challenging us to rethink who counts as the makers and interpreters of the law. Traditionally, the law has been viewed as akin to the whip. It was a tool of oppression to reinforce and support slaveholding interests and white racial attitudes. With the focus on lived experience, however, there is greater opportunity to consider how people of color participated in the laws that governed them. Scholars such as Emily Blanck, Laura Edwards, Ariela Gross, Martha Jones, Lea VanderVelde, Kimberly Welch, and others, including this author, have explored this idea through what some call African American “claimsmaking.” Drawing on the old court records and personal stories, these efforts have revealed how free persons of color and enslaved men and women shaped and reshaped the law far more than previously realized. Sometimes it was an act of resistance--refusing to abide by a law--but other times it meant going into court and asserting a right. Either way, Chief Justice Taney's infamous utterance that Black persons “had no rights which the white man was bound to respect” has come to feel more like the wishful thinking of a slaveholder rather than an on-the-ground reality.

Part I introduces the Perkins family and discusses the environment in which Charles Perkins emigrated from Mississippi to California, bringing an enslaved man with him. As this part notes, it was an exciting time for the adventurous. Gold had just been discovered, and tens of thousands were journeying across the country and the world to claim their share. But it was also a time of political unrest, with California and its status as free or slave taking center stage in the growing sectional crisis. Viewed through the lens of Charles's emigration west, this part explores the efforts and legal arguments of proslavery Southerners to turn California into a slave state.

Part II then ventures into gold country. It sets out the reasons why so many in the mining districts were opposed to slavery, and then turns to the role enslaved persons played in undermining the institution, despite the efforts of slaveholders like Charles. Part III picks up with a brief discussion of California's admission to the Union under the Compromise of 1850, and then looks at Charles's decision to return home without his slaves in 1851. Shifting the focus back to the national scene, this part explores the trend in the so-called freedom-by-residence cases in other states and discusses how they may have shaped Charles's thinking.

Parts IV and V delve into the details of the case, from the passage of the California Fugitive Slave Act to the California Supreme Court's decision. A new character, in the form of the attorney who represents the three men in their effort to be free, is also introduced, along with the judges who decided the case at the various stages of litigation. Parts IV and V also develop a concurrent storyline about an emerging local Black community who helped draw attention to the case, to highlight some of the ways people of color shaped discussions about the law. Finally, the Article concludes with the aftermath of the case, highlighting the ripple effects it had on slavery and race relations in California and on the infamous Dred Scott decision.

[. . .]

The various schemes to officially turn California--and later its southern half--into a slave state never succeeded. But the never-ending efforts to accomplish it, along with the passage of the California Fugitive Slave Act, illustrate the determination with which Southern slaveholders and their Chiv sympathizers sought to protect and develop slavery in the state, even after it was outlawed. To them, the decision in In re Perkins was not just correct, it was necessary to protect what they believed to be their constitutionally protected right to property. As the decision was announced, “[v]ery many of the bar were present,” said the San Francisco Herald, “and reading of the Chief Justices' opinion, together with that of Judge Anderson which followed, was received with profound attention and seemingly with general satisfaction.”

The ruling meant that slaveholders, regardless of how long they had resided in California, were entitled to hold any enslaved person brought to the state prior to the adoption of the Constitution in September 1850 as a slave. The decision was so profound, in fact, that it was cited and relied on as authority by the lawyers in Dred Scott. Discussing its potential impact on the infamous decision, the proslavery DeBow's Review hailed the Perkins opinion for its “thorough demonstration that negro slaves are property recognized under the Constitution, and entitled as property to the same protection as any other property whatever.” Going even further, in a chilling assessment that helped carve the path to the Civil War, it insisted that the Perkins opinion “shows clearly that the Constitution of the United States instantly converts all acquired territory into slave territory: that is, Southerners acquire thereby the very same right to carry and to hold their slaves in such territory as Northerners do to carry and to hold their mules, horses, and merchandise.”

Indeed, the case's impact could be felt across the country, as multiple newspapers carried regular updates and reported on its final disposition. “This was the first decision under the law in question,” said the Washington D.C. Daily National Intelligencer, “and settles the question as to the legal right of the master to remove slaves brought into California before its admission as a State had been determined. There are many slaves now resident in that State liable to be removed under this law.” The Mississippian kept its hometown readers informed about the case, as did the Hinds County Gazette, especially since Charles Perkins, as both papers noted, was from the state. Whether the papers came out in favor or against the decision, or merely noted its disposition, the result was quite clear to just about everyone: “The State is now perfectly open to slavery.”

There was evidently some talk of appealing the decision to the U.S. Supreme Court. Harvey Brown, one of the lawyers who assisted with the case at the California Supreme Court, wrote to Cornelius on the eve of the argument. “It is a matter of great doubt as to what the result will be,” he said, “but if we fail here we must go with it to the Supreme Court of the U.S. without fail.” The reason they never appealed the decision is not known, but it potentially had to do with the cost of pursuing the appeal. Brown had made no secret of his expectation that he would be paid his typical fee. “The truth is Brown ... is not willing to take hold of the dark side of these cases without a handsome fee being paid in advance,” his partner James Pratt told Cornelius at one point. There is nothing unusual or untoward about Brown's expectation. Lawyers, especially highly skilled ones, have always demanded high fees for their services. Cornelius, too, notwithstanding his strong opposition to slavery and his belief that the California Fugitive Slave Act was unconstitutional, was far from a modern-day “cause” lawyer and most likely never considered appealing the case without adequate compensation.

In the months that followed, the case played out in predictable ways. Slaveholders and their sympathizers were emboldened. Robert Givens's father had asked him about bringing a slave named Patrick into the state. Robert wrote back in September 1852, shortly after the case was decided, and assured his father that he could do it, and “no one will put themselves to the trouble of investigating the matter.” Elizabeth Ware might as well have been back in the South. A month before the decision, in a brazen display of how confident slaveholders were of the result, she took out an advertisement in the Sacramento Daily Union offering a $100 reward for the return of an enslaved woman named Mary Hager, who had run away back in October 1850.

The purported owner of Harriet Jordan was similarly confident that the courts and the public would protect his rights. Harriet had run off after marrying her husband, a free person of color. Her purported owner tracked her down in San Francisco in September 1852 and had her arrested under the California Fugitive Slave Act. The case was brought before a judge that had already heard two cases under the act in the month since the Perkins decision. As he did before, the judge found in favor of the slaveholder and remanded Harriet to the custody of her former owner.

With control of the legislature solidly in the hands of the proslavery Chiv party, the California Fugitive Slave Act was also successfully extended for two additional years, through April 1855. During that time, a slaveholder from Arkansas named Tucker used it to his benefit, much like Charles Perkins did, when he tracked down Stephen Hill in the summer of 1854, a year or two after Tucker had moved back to Arkansas. Hill protested that he had been given his freedom before Tucker had left, but the local court refused to credit the testimony considering Tucker's assertion that he had not. Hill was turned over to Tucker and sent back to slavery.

The result is less clear in a case involving George Mitchell, whom local authorities arrested in the spring of 1855 and charged with owing service to Jesse Cooper of Tennessee. Mitchell had been brought to California in 1849, before the adoption of the Constitution, and shortly after made his escape. Six years later, Cooper found him and sought to avail himself of the California Fugitive Slave Act. A crafty lawyer representing Mitchell was able to delay the case until after the law expired in April 1855, and then convinced the court to dismiss the case on the grounds that the law was no longer enforceable. Cooper countered by applying for a warrant from a U.S. Commissioner to reclaim Mitchell under the federal Fugitive Slave Act, and there the paper trail ends.

In ways that neither the California Supreme Court nor the proslavery contingent in the state likely predicted, however, the case also provided momentum to the members of an emerging Black community to coalesce around improving their lives and conditions. They would continue to help fund fugitive slave cases and secret away those who were being dragged back into slavery. In addition, starting in 1855, they would organize three statewide conventions, with the primary goal of overturning an 1851 law prohibiting persons of color from testifying in any case involving a white person. As was true all over the South where such laws were standard, it led to a cascade of injustices, as whites assaulted and stole the property of persons of color with impunity. Petitions to repeal the ban ran into continued resistance from the legislature throughout the decade, as well as in the courts.

In fact, Cornelius Cole, now serving as the District Attorney in Sacramento, brought the issue all the way to the California Supreme Court in 1860. In a case involving a white man accused of stealing a gold watch from a man of color, the accused claimed that the Black man could not testify that the property was taken from him. Cornelius argued that the prohibition had led to an invitation to crime, and urged the court to overturn the ban. “It is possible, as suggested by the District Attorney, that instances may arise where, upon this construction, crime may go unpunished,” the court acknowledged. But, it said, in language harkening back to Chief Justice Murray's opinion in the Perkins case, “[i]f this be so, it is only matter for the consideration of the Legislature. With the policy, wisdom, or consequences of legislation, when constitutional, we have nothing to do.” Still, notwithstanding years of disappointments, Blacks in California were ultimately successful. In 1863, some nine years after the Court sentenced Carter, Robert, and Sandy to a lifetime of servitude, Blacks in California successfully convinced the legislature to recognize their voices and remove the ban on their testimony.

As well, Blacks would continue to fight for freedom in the courts, on their own behalf and the behalf of others, with varying success. In 1857, two individuals brought suit for wages against William Gwin, the senator from the Chivalry Party, claiming that Gwin had wrongly enslaved them. Notwithstanding their time providing labor for him, however, the court concluded that their complaint was defective, on the specious ground that “it does not aver that there was any contract between the parties, or any request by the defendant that the service should be performed.” The community had better success a few years later, after a man named Smith tried to track down an enslaved man named Turner that his father had brought to California in 1850. Smith evidently found Turner and placed him in irons, with the intent to take him back to Missouri. After local residents stepped in to prevent the removal, Smith let him go. As late as 1864, in what was perhaps the last fugitive slave case in the state, a Black man named Daniel Blue intervened on behalf of Adda, “a female colored child” about twelve years old. Adda's owner had brought the girl to California in the fall of 1863, where he held her out as a slave before selling her to a man named Gammon. In open defiance of the law, Gammon continued to treat her as a slave, denying her necessary care and brutally beating her. Blue sued, and Gammon was eventually forced to give her up.

Perhaps the most well-known case, however, involved Archy Lee. In a story with as much drama as the Perkins case, the case of Archy Lee began when Charles Stovall from Mississippi traveled to California in the fall of 1857, bringing Archy with him. Later that winter, in January 1858, Stovall--who was evidently concerned that Archy would flee--decided to send Archy back to Mississippi. Archy subsequently escaped, only to be caught, arrested, and brought before Judge Robert Robinson to litigate the question of whether slavery could legally exist in a free state. Judge Robinson held that it could not, but before Archy could enjoy his new status, Stovall arranged to have another warrant issued, this time by David Terry of the California Supreme Court. That February, the Court held a hearing over the matter and quickly issued an opinion. It agreed with Judge Robinson, and held--in an apparent rejection of Justice Anderson's opinion in In re Perkins--that under the freedom-by-residence line of cases persons who came to California with the intention of living there could not own slaves. But then, in an absurd twist, the court found that Archy could not benefit from its ruling, and he would remain a slave, because it was the first time the court had considered the matter and it would be unfair to Stovall to deprive him of his property. Outraged, the Black community subsequently orchestrated another dramatic rescue on board the ship that was taking Archy to Panama, which led to another hearing and another victory for Archy. But Stovall was ready once again, and in one last desperate strategy he had Archy arrested and brought before a U.S. Commissioner on the grounds that he was a fugitive under the federal Fugitive Slave Act of 1850. The commissioner, however, ruled against Stovall, reasoning that Archy had not crossed state lines in his escape, and declared him, once and for all, free.

As for Charles Perkins, he never returned to California after winning his case. He stayed in Mississippi with evident plans to follow in his father's footsteps as a cotton grandee. After marrying in 1853, however, he died in late 1855 or early 1856 of unknown causes. As noted above, Cornelius Cole became a prominent member of the California Republican Party, serving in the U.S. House of Representatives from 1863-1865, and later in the Senate from 1867-1873. He continued to speak out against slavery, casting important votes for the 13th, 14th, and 15th Amendments. Years later, when he reflected back on his representation of Carter, Robert, and Sandy, some of the details were lost--he focused on just one of them, and called him “Andy,” for example. But he offered some potential good news in an otherwise tragic case. He had heard that “Andy” had escaped while crossing the Isthmus of Panama on the way back to Mississippi. He “never gained any reliable information on the subject,” however, and this author has not been able to independently verify the story. But in what was an otherwise tragic case, for the individuals, the state, and the nation, one can always hope.

John J. Hemmingson Professor of Civil Liberties, Gonzaga University School of Law. LL.M., Harvard Law School; J.D., American University, Washington College of Law; B.A., Carleton College.