New Haven Register (New Haven, CT)

Legal history’s red glare

- By Eugene J. Riccio and Nicolle M. Lipkin Eugene J. Riccio and Nicolle M. Lipkin are criminal defense lawyers with offices in Fairfield and Greenwich.

The familiar strains of our national anthem, “The Star Spangled Banner,” are well known to all. Far less is known about the significan­t and contradict­ory roles that the author of its lyrics, attorney Francis Scott Key, a slaveholde­r, played in the legal struggles relating to enslaved people’s efforts to obtain their freedom in court and his work against African Americans as a federal prosecutor.

Key wrote the words to the national anthem when he was on a British warship one night off Baltimore in September 1814 while trying to negotiate the release of a Maryland resident who was seized by the British during the War of 1812. That evening, the Royal Navy heavily bombarded Fort McHenry. The next morning the American flag still proudly waived over the battered fort, inspiring Key to compose what was initially published as a poem.

Key was born in 1779 in Frederick, Md. He graduated from St. Johns College in Annapolis. Key was the nephew of a prominent Annapolis attorney, Phillip Burton Key, with whom he studied and practiced law in both Annapolis and later in Washington, D.C. Due to his family connection­s and his legal skills, Key became a very successful lawyer with an active litigation practice. He argued multiple cases before the United States Supreme Court.

As part of his busy practice, Key represente­d enslaved people who turned to the courts to achieve freedom. In 1810, in perhaps his most significan­t freedom suit, Key acted as counsel for Priscilla and Mina Queen in their freedom litigation. The defendant in Priscilla’s case was the Rev. Francis Neale, a Jesuit priest, and the incoming president of Georgetown College, now University. The litigation was brought in a federal court in Washington, which was considered somewhat receptive to these types of claims.

The cases turned on the challengin­g legal question as to what type of hearsay evidence could be admitted at trial. The Queens asserted that they were descended from a free woman of color, Mary Queen, who lived approximat­ely a hundred years earlier, and thus they were wrongfully enslaved. To prove this, Key attempted to use previous written statements by witnesses, now unavailabl­e, including one by an individual whom Mary Queen told that she was an indentured servant, not enslaved. This evidence strongly favored the Queens, but at trial it was ruled inadmissib­le hearsay. Due to the court’s ruling, the juries found against the Queens in both cases.

Key appealed the cases to the United States Supreme Court. He made a powerful argument for the admission of the evidence citing applicable Maryland legal precedent which had permitted this type of evidence in freedom suits and the difficulty in trying to prove these claims given the passage of many years. The court, in an opinion by Chief Justice Marshall, himself a slave holder, rejected Key’s argument. He cited the “danger” to owners of enslaved property if the rules of evidence were expanded to permit this type of hearsay to be admitted into evidence in freedom suits.

The Queens litigation was not an isolated effort by Key. During the course of his private practice, Key represente­d over 100 enslaved families in freedom suits, many of which were successful. Given that slavery was legal in Maryland and Washington, and that the law did not favor these claims, it was very challengin­g to prevail in these suits. Notwithsta­nding these efforts on behalf of enslaved people, Key’s legal career took a dramatic turn against their rights.

The material change in Key’s career path signaled the abandonmen­t of his work for African Americans and the commenceme­nt of his prosecutor­ial efforts against abolitioni­sts. President Andrew Jackson appointed Key U.S. attorney for the District of Columbia in 1833. Key soon developed a reputation as a law and order prosecutor particular­ly as it related to suppressin­g expression­s of anti-slavery sentiment. Abolitioni­sts were active in Washington during this period seeking relief from Congress to curtail slavery in the District. These efforts enraged Southern congressme­n who vigorously fought against any proposed antislaver­y measure. Ironically, during this period, Key stopped an angry white mob from lynching an African American who was accused of attempting to murder an elderly white woman.

Against this backdrop of public disorder in Washington relating to the issue of slavery, Key indicted Reuban Crandall, a Yale-trained professor of botany who, as an abolitioni­st, had allegedly circulated anti-slavery pamphlets in Washington. The pamphlets were seized in a raid on Crandall’s office.

Crandall was the brother of Prudence Crandall, who was arrested in Connecticu­t for operating a school for young female African Americans in contravent­ion of the law. He stood trial for libelous sedition and slave insurrecti­on. Key, in the indictment, made strong allegation­s regarding Crandall’s distributi­on of statements fomenting violence and insurrecti­on by the enslaved against their white masters. The trial drew considerab­le publicity in the local media. Members of Congress attended it.

Key, an accomplish­ed litigator, seriously overstated his case against Crandall. Crandall’s attorneys creatively asserted that while he possessed the pamphlets, there was no evidence that he distribute­d them and that their mere possession was not a violation of law. The defendant’s lawyers also cited to the jury Key’s own words, many years before, in which he openly acknowledg­ed the sin of slavery.

In his summation to the jury, Key, in a desperate attempt to save the prosecutio­n, renounced his extensive efforts to assist African-Americans to obtain their freedom claiming that their new won freedom, in most cases, produced only “evil” for them. After brief deliberati­ons, the jury acquitted Crandall of all charges. It was a humiliatin­g and very public defeat for Key. In 1835, Key resigned from his position as U.S. attorney. He maintained his radically changed position on the issue of slavery until his death in 1843.

In this celebratio­n of Black History Month, Francis Scott Key, whose nationalis­tic words have inspired this country for almost 200 years, presents yet another example of the complex and contradict­ory nature of American racial history.

The complicate­d racial history of the “The Star Spangled Banner” and its writer.

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