The Powell case in the full record · two writs, a courtroom seizure, and a second discharge

9 October 1847 – 1 October 1849

The flight and the settlement: John Norris, of Boone County, Kentucky, lived on the Ohio River about a mile and a half below Lawrenceburg, Indiana, and claimed to own David Powell, his wife Lucy, and their four children — Lewis, Samuel, George and James. The family was permitted to cultivate a piece of ground and sell the produce where it pleased, and David and the boys were often in Lawrenceburg selling their crops. On the night of Saturday, 9 October 1847, the whole family disappeared. About forty persons started in pursuit the next morning, and Norris and a party in his employ hunted through southern Indiana for some two months, finding articles of the fugitives' clothing at several places, but not the family. The Powells reached the Black settlement in Cass County, Michigan, near Cassopolis — one of the largest Black communities in the Middle West — bought a small tract of land, and were, in their neighbor's words, laboring hard to pay for it. Lewis, the eldest son, married. They lived there two years unmolested.

The seizure: In September 1849 Norris started north again with a party of eight men, and about midnight on 27 September they broke into the Powell house, eight miles from Cassopolis, a half mile from any other dwelling. David and Samuel were away from home. The Kentuckians drew pistols and bowie knives, compelled Lucy and three of her children to rise from their beds, bound some of them with cords, and hurried them into covered wagons — Lewis forcibly separated from his wife — leaving part of the company behind to keep the house's other inmates from giving the alarm. The alarm was given anyway. A neighbor, Wright Maudlin (the name is also rendered Modlin), overtook the wagons about noon the next day, Friday 28 September, near South Bend, some thirty miles from the Powell house.

Maudlin went straight to Edwin B. Crocker, a South Bend attorney, told him he had known the family as quiet and industrious people and had never heard any intimation that they were slaves, and swore to a petition for a writ of habeas corpus — naming Mrs. Powell and Lewis, the two he was certain had been taken, and averring that they were free persons. Elisha Egbert, probate judge of St. Joseph County, specially authorized by statute to issue and try such writs, ordered the writ to issue. Deputy Sheriff Russell Day, learning that the Kentuckians were armed, collected citizens to help him serve it, and overtook the party about a mile south of town, stopped in the bushes to feed their horses, weapons displayed. The writ was read; after considerable parley, and after being made to understand most distinctly that they could not proceed without a fair trial of their claim, the Kentuckians drove back to town, followed by the sheriff's party and a growing crowd. A second writ, directed to Norris by name and covering all four captives, was served on his arrival, and Norris had the captives placed in the county jail while he procured counsel — Liston and Stanfield, two of the ablest lawyers in northern Indiana. Deavitt and Crocker appeared for the captives.

The first hearing and the seizure in court: Norris's return to the writ claimed the four as his slaves under Kentucky law but showed no certificate — and the federal Fugitive Slave Law of 1793 required a claimant who had seized alleged fugitives to take them before a judge or magistrate of the state where the seizure was made and procure a certificate before removing them. The captives' counsel excepted to the sufficiency of the return on exactly that ground. The exception was argued until night: for the captives, that the law of 1793 was the only remedy Congress had provided and had to be strictly pursued; for Norris, that a claimant might seize his slave wherever he found him and carry him wherever he pleased, without proof, certificate, warrant or process, and that anyone who questioned the claim did so at his peril.

No authority was produced for the second position. Judge Egbert sustained the exception and ordered the captives discharged. The judge spoke so low that few heard him; Crocker announced the decision aloud. At that moment Norris's men, gathered around the captives within the bar while the judge still sat on the bench, seized them with one hand and brandished their weapons with the other, threatening to shoot the first man who interfered. Liston, Norris's own counsel, jumped on a table and called on the Kentuckians to shoot all who interfered, saying they would be justified. The citizens in the courtroom were unarmed; no rescue was attempted; and at length the weapons were put up and, at Norris's request, the sheriff locked the captives in jail for safekeeping. It then appeared that Norris, while the hearing ran, had procured a writ under Indiana's own statute respecting fugitives from labor, and claimed to hold the family under that.

The weekend and the Monday hearing: Friday evening and Saturday were consumed by the law's counterfire. Warrants issued against the Kentuckians for assault and battery and for riot; the Powells themselves commenced two suits against Norris and his party for trespass and false imprisonment, holding them to bail of $1,000 in each — one of the captives' own counsel entering himself as bail. A Michigan citizen swore before a South Bend justice that Norris's party had committed kidnapping in Michigan and fled from justice there; a writ for their arrest as fugitives from justice issued under Indiana law, and was never served. On Saturday evening a further writ of habeas corpus was procured, returnable before Judge Egbert at eight o'clock Monday morning. Meanwhile the news had run back to Cass County.

The 1851 pamphlet that printed the case describes the settlement the family came from as numbering, it was supposed, from 1,200 to 1,500 colored people, many of them fugitives; during Saturday and Sunday, Black neighbors of the Powells, estimated at from seventy to two hundred, arrived in South Bend — in the pamphlet's words, many in a highly exasperated state, though they conducted themselves with great coolness and propriety. Norris consulted his attorneys on Sunday and concluded it would be useless to try to take the captives out of the county in the face of so many armed negroes; the damages route was chosen instead — in the account's phrase, he did not want the negroes; he could make the citizens pay for them, which was all he wanted. On Monday, 1 October 1849, the sheriff's return set up the state writ as his authority.

A replication, sworn to by Lewis Powell himself, excepted to the return and alleged that the captives were free persons and not slaves. Prigg v. Pennsylvania — in which the Supreme Court had declared all state laws in relation to fugitives from labor unconstitutional and void — was read to the court; witnesses were examined; Norris, though one of his attorneys and several of his party were present, refused to appear. The court again ordered the captives discharged. Their friends conducted them out of the courthouse to a wagon; on the bridge at the edge of town they halted and made the welkin ring with their cheers for liberty, and rode home singing the songs of freedom. The grand jury afterward refused to indict the Kentuckians for riot, and in a few days they quietly departed for Kentucky.

Crocker's testimony: The account the case left behind was Crocker's, and its most quoted passage is his own. Visiting the family in the jail, he wrote, the mother fell on her knees before him, with streaming eyes and heaving breast, and begged him to save them from slavery. Afterward David Powell came to thank him, and Crocker printed the father's words: "I once had a wife; she was taken from me and sold South; I have never seen her since; I know not whether she is dead or alive, and when the news came, that this, my second wife, was in the hands of the Kentuckians, I felt that I had nothing more to live for" — and he wept like a child. The Powells remained free. What the freeing cost the free is the next entry's record.

Sources:

1. Chas. C. Chapman & Co., History of St. Joseph County, Indiana (Chicago, 1880), ch. XVIII, "The South Bend Fugitive Slave Case," pp. 618–626 — read whole and first-hand for this section: the narrative of the flight, seizure, hearings and discharge, the suits, and Crocker's quoted account. Timothy E. Howard, A History of St. Joseph County, Indiana (1907), vol. 1, pp. 202–203, prints an abbreviated version and states in its footnote that the 1880 chapter's unnamed writer "shows himself to have been familiar with the facts."
2. The South Bend Fugitive Slave Case, Involving the Right to a Writ of Habeas Corpus (New York: For sale at the Anti-Slavery Office, 1851), 24 pp. — the case literature printed from the proceedings at the time; Library of Congress catalog record (LCCN 10034367). Crocker's account was republished at South Bend by A. Beal in 1873 as his Review of the South Bend Fugitive Slave Case, Tried in 1849, '50 and '51 (via Michiana Memory).
3. Emma Lou Thornbrough, The Negro in Indiana before 1900 (Indiana Historical Bureau, 1957), "Personal Liberty" chapter, pp. 112–114 — the case in the state history's telling, citing also the Indianapolis Indiana State Sentinel of 10 and 17 October 1849 for the contemporary press coverage.
4. Norris v. Newton et al., 18 Federal Cases 322 (No. 10,307), also reported at 5 McLean 92 — the federal report's own narrative of the September 1849 events as proved at the damages trial.