The price of the rescue · Norris v. Newton, the penalty suits, and Norris v. Crocker in the Supreme Court

21 December 1849 – 1855

The damages action: On 21 December 1849 Norris commenced suit in the United States Circuit Court for the District of Indiana against nine men — Leander B. Newton, George W. Horton, Edwin B. Crocker, Solomon W. Palmer, David Jodon, William Willmington, Lot Day, Jr., Amable M. Lapiere and Wright Maudlin — to recover the value of the four Powells and other damages, the declaration charging that the defendants had knowingly harbored and concealed the fugitives and aided their escape, and stating the family to be worth $2,500. Maudlin, a Michigan resident, was dismissed from the suit. Lot Day, Jr., named among the defendants, was the county's sheriff. O. H. Smith and J. A. Liston appeared for Norris; Joseph G. Marshall and J. L. Jernegan for the defendants. The defendants demurred — the declaration, founded on the Act of 1793, nowhere referred to the statute — and Judge Huntington, sitting in McLean's absence, overruled the demurrers unceremoniously.

The defendants then pleaded the habeas corpus proceedings themselves as a defense, raising the great question whether alleged fugitives from labor were entitled to the writ at all; McLean, when he arrived, rejected the special pleas on the technical ground that they amounted to the general issue, and the case went to a jury at the May term of 1850, the court sitting from the third Monday in May. McLean's charge to the jury, printed in his own reports, favored the claimant. It also settled law that outlived the case, and its propositions stand in the report's syllabus: a state judge, on proper affidavit, may issue a writ of habeas corpus and inquire into the cause of a detention; the affidavit of a colored person is sufficient for the purpose; if the return shows the fugitives in the master's legal custody and is not denied, the state judge's jurisdiction ends; but if the return is denied or insufficient, the master must prove his custody lawful, and on failure the judge may release the fugitives. The jury priced the family in the declaration's own terms — Lucy, forty years of age, $500; Lewis, twenty, $800; George, sixteen, $750; James, fourteen, $700 — against an itemized claim that added the plaintiff's South Bend expenses of $165.80, and returned a verdict for Norris of $2,856.

Collecting it: The judgment's satisfaction is carried by two accounts that this record does not reconcile into one. The 1899 reminiscence record gives the judgment as entered in June 1852 and its execution as issued in June 1851 and returned by the marshal in August 1851, "no property found" — dates that cannot both stand as printed, and are carried here as that record prints them; it adds that Norris's side then alleged the defendants had transferred real estate to avoid the judgment, and pursued interrogatories whose costs — $1,632.66 in costs was taxed on the judgment — were in the end awarded against Almond Bugbee, a supporter who was not a defendant, while the suit was still pending. Chapman's account states, without the intermediate steps, that on 29 March 1855 the United States marshal sold a quantity of real estate owned by some of the parties to satisfy the judgment. Solomon Palmer's biography in the same volume says the case, finally decided against Palmer and his associates, cost him nearly every dollar of his worldly possessions. The defendants paid for the freeing; how much each paid, and when, the sources reached do not itemize.

The penalty suits and the Supreme Court: Between the spring and fall terms of 1850 Norris commenced twelve further suits against fifteen defendants, each to recover the $500 penalty the Act of 1793 gave a claimant against any person who harbored or concealed his fugitives — with talk, the defendants' counsel recorded, of some twenty-five more, worth $15,000 to $20,000 in all if every one succeeded. On 18 September 1850, while those suits pended, Congress passed the new Fugitive Slave Act, punishing the same offenses by fine up to $1,000 and imprisonment up to six months. The defendants demurred on a point of pure law argued for two entire days: a new statute covering the whole subject, with new and heavier penalties and no saving clause, repealed the penalty of 1793 by implication, and the repeal killed the pending suits.

At the May term of 1851 the circuit court decided for the defendants — and then, at the plaintiff's own request, certified its judges' division of opinion to the Supreme Court of the United States. The vehicle was Norris's penalty action against Crocker himself and Judge Egbert — the lawyer who had drawn the writ and the judge who had granted it, sued for the $500 penalty for the rescue their own court had ordered. Norris v. Crocker, 54 U.S. (13 Howard) 429, came up on that certificate of division, McLean and Huntington divided below. Mr. Justice Catron delivered the opinion: the fourth section of the Act of 1793, so far as it relates to the penalty, was repealed by the Act of 1850, and the repeal barred the pending action.

The penalty campaign ended there. The $2,856 in damages stood — that judgment rested on the family's value, not on the repealed penalty — but no South Bend man paid Norris the $500 forfeits, and the case that began with a midnight seizure in Michigan closed in the United States Reports as a standing authority on repeal by implication, cited for that proposition into the next century.

The conflicts, carried openly: Thornbrough's state history prints the damages award as $2,850; the case literature, the county history and the federal report's tradition give $2,856, and $2,856 is printed here. The 1899 reminiscence record gives the declaration's valuation as $2,000 in its quotation of the pamphlet; Chapman's narrative gives $2,500, which the jury's itemized accounting supports as the claim's scale, and $2,500 is printed. The same reminiscence record once prints the verdict as $3,856 — a figure nothing else carries, against its own second printing of $2,856 — and it is not followed.

Sources:

1. Norris v. Crocker et al., 54 U.S. (13 Howard) 429 (December Term, 1851) — the Supreme Court's syllabus, the certificate of division from the Circuit Court for the District of Indiana (May term, 1851, McLean and Huntington, JJ.), and Catron, J.'s opinion, read in the text of the United States Reports.
2. Norris v. Newton et al., 18 Federal Cases 322–327 (No. 10,307), also 5 McLean 92 (Circuit Court, D. Indiana, May Term, 1850) — McLean's charge and the report's syllabus of its habeas corpus propositions, read first-hand.
3. Chapman, History of St. Joseph County (1880), pp. 622–626 — the damages suit's pleadings, counsel, itemized claim, verdict, and the marshal's sale of 29 March 1855; pp. 476–477, the biography of Solomon W. Palmer, for what the judgment cost him.
4. Helen Hibberd Windle, The Underground Railroad in Northern Indiana (1939), quoting the case pamphlet and Esse Bissell Dakin's 1899 account — the execution returned "no property found," the interrogatories and the costs awarded against Bugbee; carried here as that record states it, beside Chapman's account, unreconciled.
5. Thornbrough, The Negro in Indiana before 1900, pp. 112–114 and n. 34 — her $2,850 printing of the award, carried above as a conflict, and her judgment that the affair was "probably the most sensational attempt to thwart a slave catcher in the history of Indiana."