The year before the David Waite trial, both the defense attorney John Jolliffe and U.S. District Court Judge Humphey H. Leavitt had been involved in the legal struggle concerning Margaret Garner.
That tragedy began on January 26, 1856, when, in the middle of a blizzard, seventeen slaves escaped Boone County, Kentucky via sleigh.
After crossing the Ohio River, the fugitives split into two groups. One group successfully escaped to Canada. The other party, consisting of Margaret Garner, her four children, her husband Simon, and his parents, was more ill-fated.
Margaret and her children were owned by Archibald K. Gaines while Simon and his parents were owned by Gaines’ neighbor John Marshall. Gaines and one of Marshall’s sons tracked the slaves to the Cincinnati home of a free black man named Joe Kite.
After receiving warrants from United States Commissioner John L. Pendery, a posse including Gaines, Marshall and Deputy Marshal John Ellis, among others, went to forcibly seize the fugitives.
Simon and the slave catchers exchanged gunfire but the home was inevitably breached. Once she realized they were bound to be dragged back into bondage, Margaret Garner fatally slit her three-year-old daughter’s throat and attempted to kill her other children.
She was stopped.
As Samuel May, Jr. wrote in The Fugitive Slave Law and Its Victims, “The woman avowed herself the mother of the children, and said that she had killed one, and would like to kill the three others, rather than see them again reduced to slavery!”
The fugitives were taken before Commissioner Penderey. Margaret and the other adult slaves claimed to have previously been in Ohio with permission from their masters. This was an integral claim, and one that reflects on the Waite case, as well.
Cynthia Griffin Wolff explains in her article “‘Margaret Garner’: A Cincinatti Story”:
For many years, the Cincinnati courts had consistently ruled that slaves who had been taken by their masters to live in the free state of Ohio were “emancipated” by virtue of their residence in the jurisdiction of that state.
Margaret was indicted by a jury for murder. This indictment, however, did not displease her because having to stay in Ohio for a murder charge would keep her, and her three remaining children, out of the slave state of Kentucky.
John Jolliffee and James Gitchell represented the fugitives while their status was determined by Commissioner Pendery. They were no doubt hopeful that either the murder charge or the previous trips to Ohio would sway him.
But, in the end, Commissioner Pendery refused to release Garner into the custody of the Hamilton County Sheriff. Simon and his parents were sent back into slavery while Pendery attempted to send Margaret and the children back, as well.
A legal question of jurisdiction went before Judge Humphrey H. Leavitt, who later would preside over the Waite case. After Gaines promised to make Margaret available for any murder trial that followed, Judge Leavitt decided violation of the Fugitive Slave Act trumped murder.
He ordered Margaret given to Gaines.
A last ditch effort was made to keep the Garner children in Ohio. John Jolliffe alleged the children had been detained illegally by the marshal before Probate Court Judge John Burgoyne.
Burgoyne seems have been as disposed to favor anti-slavery forces as Leavitt seems to have been disposed to favor slavery forces. Burgoyne went so far as to declare the Fugitive Slave Act null and void for its suspension of habeas corpus. He had Marshal Ellis arrested.
But Leavitt quickly had him freed. Then he allowed the Garner children to be taken back to Kentucky with Margaret.
Once he had them again, Archibald Gaines wasted little time in selling Margaret Garner and her children downriver. In a further twist of the cruel knife, the steamboat Margaret Garner was put on reportedly crashed, sank, and took one of her remaining children with it.
Facing much outrage over how he had betrayed his word, Archibald Gaines managed to bring Margaret back to Covington, Kentucky, across the Ohio from Cincinnati, and had her jailed there. But he apparently had no intention of actually letting her go back north.
When deputies from Ohio went across the river to take custody of Margaret Garner for her daughter’s murder, they found that she had been taken away the night before. The Cincinnati Gazette reported that Margaret Garner was sent south to New Orleans to a slave market.
Afterward, in May 1857, Archiabld Gaines, slave owner, and John Jolliffe, slave lawyer, crossed paths in Covington. Gaines, hurling racist abuse, gathered a mob and assaulted the attorney. They very well might have killed Jolliffe if marshals hadn’t intervened.
Such violence did not sway John Jolliffe or intimidate him into inaction. By next November, he was back at court defending David Waite for allegedly violating the Fugitive Slave Act.
Wolff, Cynthia Griffin. “”Margaret Garner”: A Cincinnati Story.” The Massachusetts Review 32, no. 3 (1991): pages 427-429. http://www.jstor.org/stable/25090277.
Garner case. May, Samuel, Jr. The Fugitive Slave Law and Its Victims. New York, NY: American Anti-Slavery Society, 1861. Pages 50-62.
Jolliffe assaulted in Covington. May, Samuel, Jr. The Fugitive Slave Law and Its Victims. New York, NY: American Anti-Slavery Society, 1861. Page 67-68.