Maine’s Place in Lincoln’s “house Divided”

Publication year2013
CitationVol. 28 No. 1 Pg. 0017
Maine’s Place In Lincoln’s “House Divided”
Vol. 28 No. 1 Pg. 17
Maine Bar Journal

Winter 2013

Evan J. Roth

Maine has a well-known place in Civil War history. In 1820, as part of the Missouri Compromise, Maine was admitted as a free state to balance Missouri’s ultimate admission as a slave state. In 1832, in Portland, William Lloyd Garrison gave a speech that started the Maine anti-slavery movement. In 1852, in Brunswick, “Uncle Tom’s Cabin” was written by Harriet Beecher Stowe, whom Abraham Lincoln reportedly described as “the little woman who wrote the book that started this great war.” In 1861, one of those who enlisted early for the North was Bowdoin College professor Joshua Chamberlain, who would gain fame for his heroics at the battle of Gettysburg in 1863, and for the respect he showed to Confederate soldiers at Appomattox Court House when General Robert E. Lee surrendered in 1865.

Less well known is the legal contribution of the United States District Court for the District of Maine to the sectional conflict that Lincoln famously described as a “House Divided.”[1] That legal history is important because the Civil War was caused in part by a constitutional crisis over slavery and whether state and federal courts would contain it in the south or allow that “peculiar institution” to spread to other states.[2]

The legal battleground involved a disagreement as to whether slaves who reached free soil were automatically free, or whether they were personal property to be returned to their masters. As a matter of state law, the northern and southern states were, of course, diametrically opposed. In terms of federal law, the Framers of the Constitution were so divided about slavery that the text did not even mention the word.[3] As a result, it was uncertain whether slaves were personal property protected by the Fifth Amendment so that “due process” and “just compensation” were required before a slave could be freed.4 At the same time, however, the Constitution clearly recognized the existence of slavery because Article [4], Section 2 required the return of any “person held to service or labor” in one state that was “escaping” into another state.[5]

This article highlights the little-known role of the United States District Court for the District of Maine in the federal-state tug of war over slavery. The article begins with a summary of a Massachusetts state court decision that was one of the most important precedents at the time, Commonwealth v. Aves, [6] which held that a slave was automatically free if his master brought him to Massachusetts voluntarily. One year later, that precedent was relied on by Judge Ashur Ware of the United States District Court for the District of Maine, in the case of Polydore v. Prince, [7] which concluded that a slave from Guadeloupe, who had virtually no rights in his home country, nevertheless had standing to sue in Maine’s federal court. Next, this article explains how the legal landscape changed dramatically when the Supreme Court issued the notorious decision of Dred Scott v. Sandford, [8] which concluded, among other things, that slaves had no standing in federal court. This article then turns to Lincoln’s “House Divided” speech, which expressed the view that Dred Scott was part of a conspiracy to spread slavery nationwide. Finally, this article concludes with a striking observation from a leading Civil War scholar about what would have happened if Polydore had been followed, as opposed to the approach in Dred Scott.

The Massachusetts Precedent

In 1836, the Supreme Judicial Court of Massachusetts decided Commonwealth v. Aves. The question presented was “ whether a citizen of any one of the United States, where Negro slavery is established by law, coming into this State, for any temporary purpose of business or pleasure, staying some time, but not acquiring a domicile here, who brings a slave with him as a personal attendant, may restrain such slave of his liberty during his continuance here, and convey him out of this State on his return, against his consent.”[9] As the court explained, it seemed there was “no decided case on the subject.”[10]

The issue was challenging because, as the court explained, slavery had been abolished in Massachusetts long before the adoption of the Massachusetts Constitution in 1780 or the U.S. Constitution in 1789.[11] Indeed, slavery was prohibited by ordinance in colonial Massachusetts as early as 1641.[12] Moreover, it was settled Massachusetts law that “a negro born within the State, before the [C]onstitution, was born free, though born of a female slave.”[13]

Nevertheless, the court in Aves recognized that “slavery to a certain extent seems to have crept in, ” particularly since Massachusetts law imposed a duty on the “the importation of negroes, ” and regulations had been adopted to govern the methods by which a slave could be freed.[14] Notably, however, the facts in Aves did not trigger Article 4, Section 2, which only applied to slaves who escaped, as opposed to a slave voluntarily brought into Massachusetts by his or her master.[15]

Applying Massachusetts law, the state court in Aves concluded that “bond slavery cannot exist” because it is “contrary to natural right” and “repugnant” to the Massachusetts Constitution.[16] Although the laws of a foreign state might allow the acquisition of slave property, that authority was “dependent upon such local law for its existence and efficacy, ” so the “general right of property cannot be exercised or recognized here.”[17]As the court in Aves explained, “as a general rule, all persons coming within the limits of a state, become subject to all its municipal laws, civil and criminal, and entitled to the privileges which those laws confer; that this rule applies as well to blacks as whites, except in the case of fugitives…”[18] Thus, slaves would become free upon their voluntary arrival in Massachusetts, “not so much because any alteration is made in their status, or condition, as because there is no law which will warrant … their forcible detention or forcible removal.”[19] A contrary rule would allow foreigners “to bring their slaves here, and exercise over them the rights and power” of a slave master, which would be “wholly repugnant to our laws [and] entirely inconsistent with our policy and our fundamental principles.”[20]

The Maine Decision

In 1837, Judge Ashur Ware of the United States District Court for the District of Maine received his opportunity to address this issue of national significance in the case of Polydore v. Prince.[21] Mr. Polydore was a slave from Guadeloupe that his master brought on a voyage to Portland in order to attend to the master’s 17-year-old son, Eugene[22] On board the vessel, the captain ordered Mr. Polydore to clean a hen-coop, but Mr. Polydore did not, apparently because he spoke only French and the captain spoke only English. For his insolence, Mr. Polydore was severely flogged with a piece of dry twisted cowhide. The master’s son, Eugene, secretly hid the cowhide for the purpose of exhibiting it in court as evidence of the flogging. The captain, however, mistakenly believed that Mr. Polydore had thrown the cowhide overboard, so the captain flogged Mr. Polydore again with a small rope.

Upon arrival in Portland, the law firm of Codman & Fox fled a tort action on Mr. Polydore’s behalf.[23] The threshold issue was whether a slave like Mr. Polydore had standing to sue in federal court.[24] Judge Ware recognized that Mr. Polydore, “in his own...

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