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Two Undergrounds: The Case for Disobedience to Wicked Laws

By Carl Watner

In October 1850, several weeks after the date of the enactment of the second Fugitive Slave Law, Charles Beecher, pastor of the Free Presbyterian Church of Newark, New Jersey, preached a sermon entitled "The Duty of Disobedience to Wicked Laws. " He argued that the moral obligation to "feed the hungry and clothe the naked" included the slave and the fugitive, and urged people to break the Fugitive Slave Law:
DISOBEY THIS LAW. ...I counsel no violence, I suggest no warlike measures of resistance. I incite no man to deeds of blood. ...As much as lieth in you, live peaceably with all men. To the fugitive, touching the question of self-defense, I offer no advice, as none can be necessary. The right of self-defense is unquestionable here, if ever. Of the expediency of its exercise, each man must judge for himself. I leave the question of self-defense undiscussed, to the settlement of every man's own judgment, according to circumstances.
But if a fugitive claims your help on his journey, break the law and give it to him. The law is broken as thoroughly by indirectly aiding his escape as directly, for both are penal. Therefore break the law, and help him on his way, directly if you can, indirectly if you must. Feed him, clothe him, harbor him, by day and night, and conceal him from his pursuers and from officers of the law. If you are summoned to aid in his capture, refuse to obey. If you are commanded by the officer to lay hands on the fugitive, decline to comply;... .
During the years since 1850, there have been occasions in American history when opponents of statist "law" either openly disobeyed it or secretively went underground in order to evade it. This includes the original Underground Railroad, conducted by the Quakers and abolitionists, as well as the latter-day underground railroad by which draft resisters were removed to Canada during the Viet Nam War. Today another underground railroad exists. Thousands of mothers (with their sexually abused children in tow) are fleeing their abusive husbands and exhusbands when the courts refuse to protect the children from their fathers. Most often they are in violation of state custody and visitation laws, and frequently there are outstanding warrants for the mother's arrest. The mothers subject themselves and their children to the arduous and sometimes frightening life on the run in the hope that they can leave their past behind them, and eventually settle into new lives, under assumed identities.

Sparked by a cover article they read in U.S. NEWS AND WORLD REPORT (June 13, 1988, "Mothers on the Run"), Patricia and Kevin Cullinane, operators of Freedom School, became part of this modern-day underground network. The article spoke of the unofficial head of the southeast underground, Faye Yager, who had experienced first-hand the frequent injustices of the courts in these matters, and decided to do something about it. The Cullinanes contacted her, and offered to become a "safehouse. ' Much like the Underground Railroad of yesteryear, their experiences have paralleled many of those who have resisted State authority in the past. Besides presenting a brief overview of voluntaryist resistance and disobedience, this article will indicate the similarities between the Cullinanes' attempt to protect one underground family and the attempts of the abolitionists to shield fugitive slaves.

From September 22, 1988 until September 9, 1989, Freedom Country, the home of Kevin and Patricia Cullinane, had been the hiding place of Dona Washburn and her four children, ages 5 to 10.* Dona Washburn's life on the run began in May 1988, when a ten-year old nephew reported that her husband, Derrell, had sexually abused him. After talking with her children, Dona soon came to believe that her husband had also been abusing their children for a number of years. (It was only later that she learned that several prominent members of the Macon, Georgia community where she lived had been involved in perpetrating this abuse as part of a large child pornography ring.) She immediately began working with the Qeorgia Department of Family and Child Services, but the resulting investigation was inept and nearly non-existent. Medical evidence corroborating the childrens' stories notwithstanding, Dona believed her children were in imminent danger of being returned to the custody of their father. She then requested assistance from Faye Yager, who helped Dona and her children find a safe refuge.

After moving from house to house, around the country, Dona and her children finally arrived at Freedom Country in Campobello, South Carolina in September 1988. They moved into the Cullinanes guest house, where they lived rent-free; the Cullinanes provided all their food and necessities. Knowing that a federal warrant for her arrest on charges of parental kidnapping had been issued in June 1988, Dona did not work and homeschooled her children. Their safe refuge came to an end on September 9, 1989.

At about 7:40 a.m. that Saturday, the coercive apparatus of the State converged upon the Cullinanes and Dona. A large contingent of federal, state, and county authorities raided Freedom Country. Led by at least one F.B.I, agent, approximately 40 Spartanburg County (S.C.) deputies and State Law Enforcement Division personnel cut through a locked gate, and sledge-hammered down the door of the house where Dona and her children were living. A helicopter circled overhead, to prevent escape on foot, and the five fugitives were quickly rounded up.

At the same time as the authorities were rounding up the Washburns, Kevin Cullinane and his wife were awakened, with guns trained on them, and were told that the F.B.I, was there. Kevin rolled out of bed, grabbing and cocking his .45 pistol, and demanded to see a search warrant. As soon as he ascertained the warrant was legal, he put his gun down on the bed and stepped away from it, never having pointed it at anyone. Shortly thereafter, hearing the screams of Dona's children, knowing there were other loaded guns in the house, and realizing his self-control might slip, Cullinane requested that he be handcuffed in order to restrain himself. The F.B.I, agent in charge of the raid complied with his request, placing Kevin under arrest and taking him (with Dona) to the nearest federal detention center. Kevin was not arrested for threatening law enforcement officers with his gun, but rather because he was handcuffed. According to judicial guidelines a person is not to be handcuffed unless first placed under arrest. Despite the fact that Dona and her children had been seized before he was handcuffed, Kevin was charged with violently interfering and impeding a federal officer who was serving and executing a search warrant. Conviction on such criminal charges carries a potential fine of $250,000 and up to ten years in jail.

Although Dona was extradited to Georgia, and bailed out on $15,000 bond, Kevin was detained in jail for 11 days before his bail was set at $425,000. Using his real estate property as bond, he was released, but not before discovering that the common law rule of "innocent until proven guilty" had no application to one accused of committing a serious federal crime. Kevin was subsequently indicted by a federal grand jury, but a trial date had not been set at the time of this writing. Meanwhile Dona is fighting a legal battle for determining who will retain custody of her children. For the time being, the state court in Macon has ordered them into protective custody, meaning that the state acts in loco parentis, until a final decision is reached.

Although Dona's case has not received much national publicity, there is at least one "mother on the run" who has been in the national spotlight. Elizabeth Morgan, a successful Washington, D.C. plastic surgeon and author, was jailed in August 1987, because she would not disclose the whereabouts of her then five-year old daughter, Hilary. Citing medical and psychological evidence, Dr. Morgan had accused her ex-husband, Dr. Eric Foretich, a prosperous Virginia oral surgeon, of sexually abusing their daughter since 1983. Citing his own expert witnesses and evidence, Dr. Foretich denied the allegations of abuse, and claims that Hilary was coached to lie about him. When the D.C. courts continued to permit unsupervised visits by her ex-husband, Dr. Morgan hid Hilary in 1987. For refusing to tell the court where Hilary was hidden, Dr. Morgan had her home seized, was fined $200,000, and was ordered to pay her ex-husband's legal fees. She was also held in civil contempt of court, and ordered imprisoned until she was ready to comply with the court's order that she disclose Hilary's whereabouts. Refusing to divulge the secret, she was held in jail over two years, until Congress passed a special law in September 1989, designed to release her. (The bill provided that no resident of Washington, D.C. should be imprisoned for more than one year on contempt of court in a child-custody case.) As it was, Dr. Morgan was held in jail for civil contempt longer than anyone else in the judicial history of the United States. Without the special legislation, she could have remained in prison until her daughter was 18 years old, and beyond the court's jurisdiction.

The use of civil contempt orders to enforce court decrees is nothing new. Passmore Williamson, a Quaker lawyer in Pennsylvania, became an abolitionist hero when he was held in jail for three months during 1856, for participating in the rescue of a female slave and her children, who had come to Philadelphia with their master. After being accused in state court of forcible abduction and assault, he was imprisoned for contempt of court, when he said that he did not know where the slave mother was.

The pre-Civil War Underground Railroad began in the early decades of the 19th Century, as Quakers and other sympathetic northerners attempted to assist slaves making their way to Canada and to freedom. Some conservative Quakers opposed taking part in the Underground Railroad because it was illegal, and some of the most zealous Quaker participants like Isaac Hopper of New York—of whom it was said, "fugitive slaves know him as well as they know the North Star"—were even disowned by their own meetings. Another Quaker, Levi Coffin, was one of the major figures of the Underground Railroad in the midwest. Often referred to as the "President of the Underground,' Coffin harbored more than one hundred fugitives a year in his house in Newport, near Richmond, Indiana. Another Quaker member of the Underground was Thomas Qarrett, a shoe merchant in Wilmington, Delaware. A big confident man, he gathered around him a group of people, black and white, violent and nonviolent, who rendered assistance to fugitive slaves. One such person was Harriet Tubman, the Negro conductress who made a score of trips into the South to lead slaves to freedom. Qarrett himself lost all his worldly possessions in 1848, at sixty years of age, when he was prosecuted by a Maryland slave owner and had a judgment levied and executed against him for having helped the man's slaves escape.

It is estimated that the Underground Railroad helped between 40,000 and 100,000 slaves, but not all escapes were successful. Henry "Box" Brown was one of the lucky fugitives. In 1849, he originated the idea of being shipped north in a wooden box. Samuel Smith, a Richmond shoe dealer who made the box for Brown, helped two other slaves by making them boxes and shipping them off. However rumors about Smith's boxes had spread and the boxes were intercepted. The slaves were forced back into slavery, and Smith went to prison for seven years for violating state and federal fugitive slave laws. These statutes were passed by the southern states, as well as by the federal government, in order to enforce the provision of the U.S. Constitution which required that a "person held to service or labor in one State, ...escaping into another shall, " not "be discharged from such service or labor, but shall be delivered upon claim of the party to whom such service or labor may be due." (Article IV, Sec. 2, sub 3.)

The first federal statute of 1793, provided that any federal district or circuit judge or any authorized state magistrate could decide (without a jury trial) the status of an alleged fugitive. This measure met with resistance in the northern states, resulting in the passage of state Personal Liberty Laws (Indiana, 1824; Connecticut, 1828; New York and Vermont, 1840; Massachusetts, 1843; Pennsylvania, 1847; Rhode Island, 1848) under which state officials were prohibited from enforcing the law or permitting the use of state jails to hold fugitives captured by the federal authorities. Some state laws extended the right of jury trial to those fugitives who appealed the original judicial decision ordering them to be returned to the south.

The second Fugitive Slave Law (which was passed as part of the Compromise of 1850, and which was not repealed until 1864) made life more difficult for the escaped slave, as well as for those assisting him. First, federal judges were no longer to decide the fate of the slave; rather special commissioners were to make decisions in a summary hearing. Second, the fugitive slave could no longer testify in his own behalf, and he was still not entitled to a jury trial. Third, penalties were imposed upon marshalls who refused to enforce the law or from whom fugitives escaped; those convicted of assisting the fugitive could be fined $1000 and jailed for six months. Emphasis was placed on convictions, since the special commissioners were paid a fee of $10 when their decisions favored the claimant, and only $5 when they favored the fugitive. As a result of the new federal law, resistance in the northern states increased and a new spate of Personal Liberty Laws was passed. These laws forbade state officials from assisting in the recapture of slaves, extended the right of habeas corpus and trial by jury to the fugitive, and punished false testimony severely. At least one confederate state referred to these laws as a justification for secession at the outbreak of the Civil War.

The new federal law strengthened the will of those opposed to slavery. It resulted in heightened activity on the Underground Railroad and prompted anti-slavery men to rescue slaves who were being held in the north, pending their return to slavery. The first attempt after the passage of the act to return an escaped fugitive from Boston met with failure in early 1851. Federal officers arrested Shadrach, a waiter in a Boston coffeehouse, on the claim that he was an escaped Virginia slave. He was taken to the courthouse, but a large mob of free Negroes entered the courtroom. Moving about in a hubbub of laughter and jostling, the mob leaders hid Shadrach from the view of the officers long enough to rush him out of the room and start him on his way to Canada. Secretary of State Daniel Webster, called the rescue treason, and it induced Senator Henry Clay to call for strengthening the provisions of the new law. When Thomas Sims, another Negro, was apprehended later the same year in Boston, the federal authorities viewed his rendition as a test of their strength. The courthouse was ringed with chains and troops. William Lloyd Garrison's LIBERATOR proclaimed, 'Justice in Chains. " A vigilance committee plotted another rescue, but the attempt was unsuccessful.

By 1854, some fifty or sixty slaves had actually been forced to return south under the Fugitive Slave Law. In that year, Anthony Burns, a young Negro tailor and ministerial student in Boston, was claimed by a Virginia slave owner. Abolitionists in Boston became determined to resist his removal. Officials held Burns in a courthouse. A small group of men, led by a local antislavery pastor, Thomas Wentworth Higginson, battered the courthouse door down with a wooden beam. In the process a guard was killed and the mob retreated, deciding that its numbers were insufficient to effect Burns' rescue. State and federal troops poured into Boston to prevent another rescue attempt, and large crowds milled about the courthouse. Public sentiment was clearly against any attempt to take Burns south: William Lloyd Garrison and three hundred friends of liberty marched about the courthouse square carrying freedom placards; protesting citizens draped their stores and offices in black or hung American flags upside down; all day and night Negroes stood on the sidewalk outside the hotel where Burns' master was staying, in a nonviolent protest vigil. Officials gathered the largest military force in Boston since the time of the American Revolution to prevent citizen interference when Burns was taken from the courthouse to a waiting government cutter in the Boston harbor. Although Burns was returned to Virginia, further protest meetings were held in Massachusetts. At one in Framingham, William Lloyd Garrison held up a copy of the Fugitive Slave law and burned it. Then he held up a copy of the United States Constitution under which Burns had been returned to slavery, and he denounced it as "a covenant with death, and an agreement with hell. " Thereupon he burned it, saying, "So perish all compromises with tyranny! "

The question of obeying or disobeying the law is an age old question in Western political philosophy. So long as there have been organized political States, men have been faced with the problem of what to do when the dictates of their reason and conscience tell them to do otherwise than what the State commands them to do. Though the consequences may not be simple or palatable, the voluntaryist answer is relatively straight forward—obey no law which violates one's conscience (especially those which require the doing of physical harm or injury to another person). Law in the voluntaryist sense of the word is something existing in the nature of the real world, such as physical laws (i.e., the law of gravity), or something required by the nature of man, such as the recognition that man must produce in order to survive. Political statutes, political regulations, and statist restrictions upon man's activities are not laws. They are nothing else other then commands sanctioned by the legitimacy of those issuing the orders, and backed up by violent force. Hence, in disobeying political statutes one is not disobeying true law.

In one sense every political "law" is wicked; that is, all legislation is an absurdity, usurpation, and a crime. " It is absurd to think that political rulers can promulgate "laws" of their own. Nothing could be right by political enactment, if it was not first right by nature. If the government directs something to be done that is contrary to reason, then it is reasonable to defy the government. If the government decrees something to be done, which reason indicates should be done anyway, then statist legislation is superfluous.

It is in this light that we can distinguish between just and unjust political "laws." The Roman natural law theorists, who coined the expression Lex Injusta non est Lex (an unjust law is no law at all), assumed that truth and right are objective, and can be ascertained by man's ability to reason. Since an unjust or wicked political "law" is no law at all, it may be or even must be disobeyed—for if it is not "law" then there is no natural penalty attached to its violation. The person who believes a political "law" is unjust might on the same grounds, refuse to pay the statist penalty for its violation. The punishment is actually a further aspect of the very political "law" that has been disobeyed. So while there is nothing inherently wrong in disobeying a "political" law or in refusing to accept the penalty, there may be no easy or practical way of avoiding the consequences of disobeying statist "law" and the punishment it exacts.

The existence of an underground railway, whether it be the 19th Century version, or a 20th Century one, shows dramatically how important public opinion and public sentiment are to the legitimacy of the State. If there is too broad a chasm between the dictates of political "law" and people's consciences, then the State begins to lose legitimacy. People are forced to decide between doing what they think is right or doing what their statesmen direct under threat of force. Abraham Lincoln, at the time of the Civil War, recognized that public support was all important to the enforcement of political "laws" and the success of the State:
Public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed. Consequently he who moulds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.
Those abolitionists who refused to abide by the Fugitive Slave Law, and their modern day counterparts who harbor fugitive mothers on the run, have clearly decided that the best way to nullify bad laws is to disobey or ignore them. Their claim to violate "laws" of their own choosing is not a claim to violate all laws, but rather only the unjust or wicked ones. They recognize the need for societal-wide rules based on reason, but they do not accede to political "laws" which require that they ignore those in need or that they do injury or harm to others. Their behavior parallels Henry David Thoreau's dictum that,"It is not desirable to cultivate a respect for the [political] law so much as for the right."

Sources
  • Charles Goodell, POLITICAL PRISONERS IN AMERICA, New York: Random House, 1973.
  • Carleton Mabee, BLACK FREEDOM, New York: Macmillan, 1970. Jane Podesta and David Biema, "Running for Their Lives," PEOPLE, January 23, 1989, pp. 71-88.
*A packet of documentation of the facts in this article may be obtained from the Cullinanes. Please send $3 for postage costs and mail requests c/o THE VOLUNTARYIST.

Addendum

On October 21, 1989, Superior Court Judge John Lee Parrott ordered Dona Washburn's four children removed from protective custody and turned over to their father, permanently. This was done in spite of expert medical testimony which confirmed sexual abuse of the children, in spite of the fact that the attorney for the Georgia Department of Family and Child Services recommended the children be returned to protective custody, and that the children continued to accuse the father of having molested them. Judge Parrott further ordered that Dona Washburn undergo psychiatric treatment, before he would allow her to visit her children. Dona has retained a new attorney, and is continuing her legal fight for the children.

Kevin Cullinane was acquitted of all charges by a federal jury in Greenville, S.C. on December 11. The jury determined that he neither "knowingly and willfully" assaulted a federal officer with a deadly weapon, nor "knowingly and willfully" impeded the execution of a federal search warrant.

As a result of the newspaper publicity surrounding Cullinanes indictment, a local I.R.S. agent "decided" to check his tax records, and found that Cullinane had not filed personal tax returns since 1981. As the agent put it, "If a person is willing to break one law, he's often willing to break a second law." As a result of this investigation, Cullinane is now faced with a tax bill from the Internal Revenue Service for more than $477,000. The I.R.S. action took place less than two weeks before Cullinane's trial and was clearly politically instigated. The only way the I.R.S. could have had access to some of the "alleged" information was by way of the F.B.I. A Notice of Jeopardy Assessment and Tax Lien were filed (without prior notice) against Cullinane because the I.R.S. thought he appeared to be "designing to quickly depart from the United States or to conceal" himself, and "place (his) assets beyond the reach of the Government... . " (Neither allegation was true.)

In deciding upon their action, the I.R.S. asserted that 1) Cullinane was a member of an underground network concealing fugitive women and children from federal and state authorities; 2) foreign currency was found in his home by federal agents executing a search warrant; 3) he had not filed income tax returns for a number of years; 4) his real property was for sale (it has been since October 1988); and 5) he used an alias to conceal payments he received and assets he owned. There was just enough substance to these spurious claims to make them look as if they may have been true. Although the local I.R.S. people were unaware of it, Cullinane had recently filed some of his back returns, and according to his accountant the amount owed (even after computing penalties and interest) was far less than the amount claimed by the I.R.S. It is clear that federal agents must have had a "cover" on Cullinane's mail because they were apparently confused by the many different people at his home receiving mail (Cullinane does not use an alias). Other than one piece of currency brought to Freedom Country by his Argentine son-in-law, there was no foreign currency on the premises; nor was there any underground network of which he could be a member.

The Cullinane affair is a perfect illustration of the "bag of tricks" and "double standard" by which the State works. Most of the I.R.S. charges were pure fabrications and required no proof on their part. Any of us could be accused of the same "crimes." If he had been convicted of violently interfering with the execution of a search warrant, Cullinane could have been jailed for 10 years, and fined $250,000, a sentence far in excess of that given to people convicted of manslaughter. Why is it worse to assault a federal agent than to kill your neighbor? It wouldn't be because the State wants to strike fear into the hearts and souls of its citizens, and have them remain compliant and docile in the face of its coercive apparatus? Even though Cullinane was acquitted, he is faced with large legal bills, for which he is personally responsible. The entire federal law enforcement system which charged him and then tried his case is paid for by the hapless taxpayers. The federal tax lien against him makes it impossible to sell his property without obtaining permission from the I.R.S., and if he cannot reach an amicable agreement with them over the amount due, the I.R.S. clearly has the last say, as his property may be seized and auctioned off.

Legal defense funds have been established for both Kevin Cullinane, and Dona Washburn and her children: The Kevin Cullinane Legal Defense Fund, c/o Anthony L. Hargis of Co., 1515 W. MacArthur Boulevard, #19, Costa Mesa, California 92626; and The (Dona Washburn) Children's Defense Fund, Box 5303, Spartanburg, South Carolina 29304.