The Thornton Withers Case

Cincinnati, Ohio. , ca. 1868. April 30. Photograph. https://www.loc.gov/item/2003654043/.

The Thornton Withers case, which unfolded around the same time as the Waite-Puntenney trials and involved John Jolliffe, as well, is another example of conflicting ideas about slavery and the rights of slave owners.

The steamer Melnotte stopped in Cincinnati en route towards Virginia. Aboard were the slave owner Thornton Withers and three people he officially owned: a girl of nine, a girl of eleven, and a man of thirty-five.

On November 2, 1857, a writ of habeas corpus was issued by J. Clemens of the Cincinnati Probate Court that alleged the slaves were illegally detained. After all, it was a long standing policy that slaves ceased to be slaves the moment they reached Ohio’s shore.

Hamilton County Sheriff Richard Mathers brought the slaves to the court for a hearing. John Jolliffe, along with James Gitchell and L. French, represented the slaves’ interests. Jacob J. Dennis and Don Piatt were the attorneys for Thornton Withers.

Dennis requested that the hearing take place the next day. Jolliffe agreed on the condition that a guardian was appointed for the minor slaves. Dennis argued that the sheriff was guardian enough.

Jolliffe put forth Darius Eggleston instead, because, with no slight to Sheriff Mathers, “he should prefer to nominate an individual in an unofficial position, that the children might not be consigned to the jail . . .”

Judge John Burgoyne, who had tried to declare the Fugitive Slave Act unconstitutional during the Margaret Garner case, allowed the appointment of Eggleston. Eggleston had to provide bond of $50 per slave, to assure they would appear before Burgoyne again.

It must be noted that in this particular case the slaves might have actually wanted to go back with the owner. They were children, after all, and far from home. Even the pro-abolitionist Cincinnati Daily Gazette reported that they “shed tears” at being separated from their master.

The hearing was adjourned for the day.

However, the three black people would never appear before Judge Burgoyne again, not because the slaves escaped north but because the slave owner took them back south.

The day after Judge Burgoyne’s hearing, Thornton Withers and attorney Dennis went to another judge, Judge Alfred Carter, of the Common Pleas Court, and alleged that Eggleston was the one detaining the slaves illegally.

Carter issued a writ of habeas corpus of his own and had the three black people brought before him.The judge examined the slaves and asked them a handful of questions that determined the matter:

1st. If they were slaves. 2d. Who their master was; and 3dly, if they wanted to go with him. To the first and third questions they answered affirmatively, and, in reply to the second, pointed to Mr. Thornton Withers . . .

Judge Carter let Withers take his slaves. They were placed into a wagon, taken to the Vine Street ferry, put aboard the steamer Queen City, and were soon again landed on Kentucky soil. They were taken to the Barlow House in Newport.

Meanwhile, at the Probate Court, John Jolliffe informed Judge Burgoyne about what he had learned had just happened. He requested that Sheriff Mathers or a special constable bring Withers and his slaves before them.

An order was issued. Jolliffe also requested an order for Judge Carter “to show cause why he should not be punished for a contempt of this Court.” Judge Burgoyne would not go that far because, “This clashing of jurisdiction is injurious in its effects.”

Judge Burgoyne stated that he felt unable to bring a charge of contempt against Judge Carter because he believed Carter only acted within the office of Judge of the Common Pleas Court and “is responsible to his constituency for his official acts . . .”

Jolliffe replied, “If a Judge violates the laws of the land, he should be the first person punished for doing so.”

James Elliott told Judge Burgoyne that he had shown Judge Carter a transcript of the record of the initial proceedings in the Probate Court but said that Judge Carter had merely glanced at them.

Judge Burgoyne stated that Judge Carter had promised to take “no further action in the matter until the proceeding in the Probate Court was disposed of.” Yet Burgoyne was still hesitant to charge his fellow judge with contempt.

However, before adjourning for the day, Judge Burgoyne left open the possibility of a contempt charge for Judge Carter if the application for it was made in the proper manner.

On November 4, Jolliffe again laid out the reasons he believed Judge Carter should be served with contempt of court, for stepping over the boundaries of his court and Judge Burgoyne’s.

As the Cincinnati Daily Gazette put it, “There was no such thing as jurisdiction over the same persons at the same instant by two different courts. If the Probate Court had jurisdiction, Judge Carter had none.”

Judge Burgoyne redirected the matter of contempt charges against Judge Carter to the Prosecuting Attorney. That same day, James Elliott made a motion before Judge Burgoyne calling for J.J. Dennis, one of Thornton Withers attorneys, to be charged with contempt of court.

Dennis, Elliott argued, had received a continuance from Judge Burgoyne and gone immediately to Judge Carter and received a writ of habeas corpus from him with the intention of going around the first judge.

Afterward, Elliott alleged, Dennis had gone as far as personally helping load the slaves into the carriage that carried them off.

Judge Carter could plead ignorance to the entire goings ons in Judge Burgoyne’s courtroom but J.J. Dennis had been intimately involved. Judge Burgoyne charged the attorney with contempt.

Cincinnati Daily Enquirer editor James J. Faran wrote an editorial in defense of Thornton Withers rights on November 5. He argued that the slaves had never been on Ohio land until after the first writ of habeas corpus brought them there.

Faran may have had a technical point but he was biased, and a terrible bigot. He had particular disdain for free blacks, one of whom he reports was the person who requested the first writ of habeas corpus from Judge Burgoyne, and the mass of whom he wrote were “worthless”.

The same day the Enquirer printed Faran’s editorial, the Cincinnati Daily Gazette printed a letter shining light from the opposing angle. M.D. Conway, the letter write, had spent considerable time in Warrenton, Virginia, where the man and girls owned by Withers were from.

Conway had visited with the three slaves in the short time that they had stayed with Darius Eggleston. The adult had told Conway that he wished to go back to Virginia only because he had a wife and five children there.

The two girls were not relatives of his and he didn’t wish for them to return with him. He would have wanted to stay free in Ohio were it not for his family. As for the girls, Conway argued, they were not old enough to understand exactly what was at stake. 

According to Conway, that lack of maturity is why the girls had told Judge Carter they wanted to go home with Thornton Withers.

On November 9th, 1857, Judge Burgoyne learned that his daughter had died in Chillicothe, Ohio. The subsequent trial of J.J. Dennis would proceed with the Judge no doubt feeling this fresh grief. 

Assistant Prosecuting Attorney Oliver Brown placed specifications charging J.J. Dennis with contempt on the 11th. Prosecuting Attorney Timothy O’Connor amended the charges on the 19th.

J.J. Dennis was tried for contempt of court on November 21st. Dennis claimed he had every right to go to Judge Carter, as well, “to try the legality” of the appointment of Darius Eggleston as guardian.

He further stated that, when appearing before Burgoyne, he had not planned to get a writ of habeas corpus from Carter. That idea came after the hearing. Don Piatt and J.R. Hallam, the other lawyers for Thornton Withers, backed up that claim.

Deputy Sheriff Glass told the court that he had taken the slaves before Judge Carter without the aid of J.J. Dennis.

Attorney Anderson defended the actions of Dennis. He further defended the rights of slave owners to have slaves in Ohio. He stated that “any slaveholder had the right to go up and down the Ohio River every day, from now until the Day of Judgment . . .”

Prosecuting Attorney Timothy O’Connor did not express an opinion on the slavery issue, as it did not actually pertain to this particular trial, he said. Instead, he argued that Dennis “ignored the existence of this court.” Thus the contempt.

On November 24th, Judge Burgoyne fined J.J. Dennis five hundred dollars after finding him in contempt of court. 

In his final opinion, Judge Burgoyne stressed that he was disappointed that Dennis’ roundabout actions prevented him from properly considering the Withers case as a legal question.

Burgoyne was to retire soon, once his term in office had expired, and he intended to leave the Probate Court Judge position “clothed with the dignity and purity contemplated by our constitution and laws.” Dennis had threatened that dignity with contempt.

However, that was not the end of the retributive trials. On December 4, 1857, J.J. Dennis went to Justice of the Peace John J. McFall and affirmed an affidavit alleging that Judge Burgoyne had “willfully and corruptly” oppressed him with the fine.

Constable McLaughlin arrested Judge Burgoyne and brought him before Justice McFall, who released him on bond of two hundred dollars to appear in the Police Court on December 9th on a charge of “oppression in office.”

At eleven o’clock, on the 9th, Judge Burgoyne and Dennis and their respective attorneys appeared before Justice McFall. Judge Burgoyne attempted to have the case moved to a higher court, willing to pay any bond thought appropriate, but Dennis insisted upon examination.

McFall, who had only been a magistrate for about a month and more or less admitted he was learning how to proceed as he went, allowed it.

After a reading of the transcript of the Probate Court proceedings, they took a recess for lunch. When they reassembled at two o’clock and found the crowd assembled had grown, the trial was moved from McFall’s office to the Police Court.

Reporter Enos B. Reed of the Cincinnati Daily Times testified first. He stated that Dennis had tried to speak on his own behalf while Judge Burgoyne was imposing his five hundred dollar fine but had been ignored. “He further remarked that if he did his duty he would disbar him.”

Thereafter, first J.J. Dennis, Cincinnati Daily Gazette reporter Thomas Shinkwin, and lastly Charles Murdock reiterated Reed’s recollection of how Judge Burgoyne had silenced Dennis.

The final decision of Judge Burgoyne was entered as evidence. The last witness was dismissed without the defense attorneys calling any of their own.

Judge Coffin lead Judge Burgoyne’s defense. He argued that “the question was merely one of law, and that evidence had nothing to do with the case; for that reason the defence [sic] had offered none.” Coffin believed that Justice McFall had no legal right to try the case. Even if there had been wrongdoing on Judge Burgoyne’s part, the appropriate response would have been a reversal of judgement by a higher court.

Judge Caldwell, who served, along with Judge Coffin and Judge Peat, on Burgoyne’s defense, likewise presented the idea that an error in a lower court, such as the prosecution alleged, should have led to a trial in a higher court, not before a Justice of the Peace.

J.J. Dennis spoke on his own behalf for the prosecution. The Cincinnati Daily Enquirer freely quoted from his oral argument. Dennis claimed Judge Burgoyne had no right to try him as an attorney. Even if he had such a right, it should have been before a jury.

Dennis claimed Burgoyne’s motives had been biased during the initial Withers case proceedings:

He (the Judge) had chosen a guardian to please Jolliffe and Gitchell, general agents and superintendents of the U.G.R.R. [Underground Railroad]

Dennis further alleged Burgoyne was aligned with Black Republicans who were always eager to interfere in the rights of “Southern gentlemen”. He stated that Judge Burgoyne was prejudiced against him from the start and would have found him guilty no matter what.

The attorney spoke for nearly three hours, and, as the Cincinnati Daily Gazette reported, “really made himself the martyr of judicial authority.”

Justice McFall, new to the job, and probably fairly overwhelmed, stated he would announce his decision on December 12th. On the 13th, McFall admitted he was still deciding, and set Wednesday, December 16th as the day he would put out his decision.

In the end, Justice McFall ruled for the defense. After a great deal of study, he came to believe that he himself “had no jurisdiction in the case.” If Judge Burgoyne had acted wrongly in finding Dennis in contempt of court, the appeal should have been taken up to a tribunal court.

Judge Burgoyne, who had been so confident in his legal position that he and his attorneys had presented no evidence in his defense, thanked Justice McFall for his decision. To quote the Cincinnati Daily Gazette, “So ends the great ‘oppression’ case.”

*

Sources

Withers case before Burgoyne.  Faran, James J., ed. “Alleged Illegal Detention of Slaves.” Cincinnati Daily Enquirer (Cincinnati, Ohio), November 03, 1857. Page 3. On microfilm at William T. Young Library (University of Kentucky)

Age of slave man. “The Slave Case: A Second Writ of Habeas Corpus.” Cincinnati Daily Gazette (Cincinnati, Ohio), November 04, 1857. Page 2. Available at the Main Library of the Public Library of Cincinnati and Hamilton County.

Slave girls “shed tears” at being separated from master.  “Three Slaves Brought Up On Habeas Corpus.” Cincinnati Daily Gazette (Cincinnati, Ohio), November 03, 1857. Page 2. Available at the Main Library of the Public Library of Cincinnati and Hamilton County.

Carter sends slaves back to Kentucky. Faran, James J., ed. “Abrupt Termination of the Slave Case.” Cincinnati Daily Enquirer (Cincinnati, Ohio), November 04, 1857. Page 3. Microfilm at William T. Young Library (University of Kentucky).

How they were transported to Newport. May, Samuel, Jr. The Fugitive Slave Law and Its Victims. New York, NY: American Anti-Slavery Society, 1861. Page 81. The case covered from pages 81-83.

Barlow House, in Newport. see above “The Slave Case: A Second Writ of Habeas Corpus.” Cincinnati Daily Gazette

“If a Judge violates the laws of the land, he should be the first person punished for doing so.” see above Faran, James J., ed. “Abrupt Termination of the Slave Case.” Cincinnati Daily Enquirer

Burgoyne hesitant to charge Carter with contempt.  see above “The Slave Case: A Second Writ of Habeas Corpus.” Cincinnati Daily Gazette

Burgoyne leaves possibility open. see above Faran, James J., ed. “Abrupt Termination of the Slave Case.” Cincinnati Daily Enquirer

Jolliffe argues why Carter should be charged with contempt. Faran, James J., ed. “A New Episode in the Slave Case.” Cincinnati Daily Enquirer (Cincinnati, Ohio), November 05, 1857. Page 3. On microfilm at William T. Young Library (University of Kentucky).

No jurisdiction over same case by two courts. “Charges of Contempt Preferred against Judge Carter and J.J. Dennis.” Cincinnati Daily Gazette (Cincinnati, Ohio), November 05, 1857. Page 2. Available at the Main Library of the Public Library of Cincinnati and Hamilton County.

J.J. Dennis charged with contempt. see above Faran, James J., ed. “A New Episode in the Slave Case.” Cincinnati Daily Enquirer

Editorial in defense of Dennis. Faran, James J. “The Late Slave Case.” Cincinnati Daily Enquirer (Cincinnati, Ohio), November 05, 1857. Page 2. Microfilm at William T. Young Library (University of Kentucky).

Faran, as racist. Faran, James J. “Judge Carter and His Detractors.” Cincinnati Daily Enquirer (Cincinnati, Ohio), November 05, 1857. Page 2. Microfilm at William T. Young Library (University of Kentucky).

Letter from Conway. Conway, M.D. “The Slave Case.” Cincinnati Daily Gazette (Cincinnati, Ohio), November 05, 1857. Page 1. Available from the Main Library of the Public Library of Cincinnati and Hamilton County.

Death of Burgoyne’s daughter. “Judge Burgoyne received intelligence last evening . . .” Cincinnati Daily Times (Cincinnati, Ohio), November 10th, 1857. Page 3. Available on microfilm at the Main Library of the Public Library of Cincinnati and Hamilton County.

Assistant Prosecuting Attorney Olive Brown specifications. “Alleged Contempt.” Cincinnati Daily Gazette (Cincinnati, Ohio), November 12th, 1857. Page 2. Available at the Main Library of the Public Library of Cincinnati and Hamilton County.

Prosecuting Attorney Timothy O’Connor amends charges. “The Contempt Case.” Cincinnati Daily Gazette (Cincinnati, Ohio), November 20th, 1857. Page 2. Available at the Main Library of the Public Library of Cincinnati and Hamilton County.

The contempt trial of J.J. Dennis. Faran, James J., ed. “Alleged Contempt of J.J. Dennis in the Slave Trial.” Cincinnati Daily Enquirer (Cincinnati, Ohio), November 22, 1857. Page 3. Microfilm at William T. Young Library (University of Kentucky).

Date of Dennis’ fine. Faran, James J., ed. “A Judge Arraigned Before a Justice of the Peace.” Cincinnati Daily Enquirer (Cincinnati, Ohio), December 5, 1857. Page 3. Microfilm at William T. Young Library (University of Kentucky). Date from Dennis’ affidavit.

Burgoyne fines Dennis for five hundred dollars. Faran, James J., ed. “Contempt of Court.” Cincinnati Daily Enquirer (Cincinnati, Ohio), November 25, 1857. Page 2. Microfilm at William T. Young Library (University of Kentucky).

Judge Burgoyne’s full opinion. “Alleged Contempt and Professional Misconduct in Slave Trial.” Cincinnati Daily Gazette (Cincinnati, Ohio), November 26th, 1857. Page 1. Available at the Main Library of the Public Library of Cincinnati and Ohio.

Oppression charges for Burgoyne. see above Faran, James J., ed. “A Judge Arraigned Before a Justice of the Peace.” Cincinnati Daily Enquirer

Constable McLaughlin. “The Judge of the Probate Court Arrested for Oppression in Office.” Cincinnati Daily Gazette (Cincinatti, Ohio). December 05, 1857. Page 2. Available at the Main Library of the Public Library of Cincinnati and Hamilton County. The Daily Gazette gave one thousand dollars instead of two hundred as the amount of Burgoyne’s bond.

Time of Burgoyne’s trial. “The Charge of Oppression in Court.” Cincinnati Daily Gazette (Cincinnati, Ohio), December 10, 1857. Page 2. Available from the Main Library of the Public Library of Cincinnati and Hamilton County.

Examination insisted upon. Faran, James J., ed. “Justice McFall’s Court.” Cincinnati Daily Enquirer (Cincinnati, Ohio), December 10, 1857. Page 3. Microfilm at William T. Young Library (University of Kentucky).

The defense argument. see above  “The Charge of Oppression in Court.” Cincinnati Daily Gazette 

The prosecution argument. Faran, James J., ed. “Justice McFall’s Court.” Cincinnati Daily Enquirer (Cincinnati, Ohio), December 10, 1857. Page 3. Microfilm at William T. Young Library (University of Kentucky).

“martyr of judicial authority” see above  “The Charge of Oppression in Court.” Cincinnati Daily Gazette 

McFall declares he needs time to decide. see above Faran, James J., ed. “Justice McFall’s Court.” Cincinnati Daily Enquirer

McFall postpones decision. “The Oppression in Office Case Not Yet Decided.” Cincinnati Daily Gazette (Cincinnati, Ohio), December 14, 1857. Page 2. Available at the Main Library of the Public Library of Cincinnati and Hamilton County.

McFall decides in Burgoyne’s favor. “The Great Oppression Case Decided.” Cincinnati Daily Gazette (Cincinnati, Ohio), December 17, 1857. Page 2. Available at the Main Library of the Public Library of Cincinnati and Hamilton County.

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