"[A] society reveals itself in its law and nowhere better than in the reports of the decisions of the state courts. The state reports are, however, the wasteland of American legal history. ... [The work of state court judges] is undeservedly unstudied. So long as that condition exists, there can be no history of American law, and without it, no adequate history of this nation's civilization."
The Midwest grew rapidly between 1820 and 1860.Ohio quickly
one of the nation’s largest states; settlers filled up Indiana
and Illinois
and pushed the frontier steadily north and west.By 1860, Cincinnati,
Cleveland and Chicago had become major American cities.
The completion of
the Erie Canal in 1825 transformed the Midwest:it spurred agricultural growth and gave birth
to new industries such as the McCormick farm implement empire.The Canal also forged a permanent commercial
link between the Midwest and the
northeast.Migrants from New York
and New England filled up northern Ohio, Indiana and Illinois and
southern Michigan and Wisconsin.The Yankees were joined by immigrants, mainly from Germany and Scandinavia,
who strongly favored a free-labor system.
The Midwest
and the slavery crisis
Many slaves tried to escape to freedom on
Underground Railroad routes going through Ohio,
Indiana and Illinois, and slaveowners regularly
took their slaves through Midwestern states on their way to other
destinations.As a result, courts
in the lower Midwest had to confront “transit cases” that raised the
question:Does bringing slaves into
free states
automatically make them free?
Midwestern law took an abolitionist turn after
1840:
Cincinnati’s Salmon Chase was one of the founders of the
legal arm of the abolitionist movement in 1837.
Efforts to abolish the black laws began in Ohio (1849).
Several Midwestern legislatures enacted “personal
liberty” laws in the 1850s, stating that their states would never cooperate in
efforts to capture fugitive slaves or to expand slavery into U.S.
territories.In 1854, Wisconsin’s
supreme courtnullified federal fugitive
slave laws; in 1859, Ohio’s supreme court came
close to joining Wisconsin.
Ohio
Indiana
Illinois
Michigan
Wisconsin
1830s
1837: Whites-only public school system created 1837: Courts hold that slaves do not automatically become free by entering Ohio but in cases of doubt as to a fugitive's status, he/she will be presumed free
1831: Supreme court holds that slaves do not automatically become free by residing in Indiana 1831: Free blacks may not enter Indiana without posting bond
Statehood, 1837 State abandons remnants of territorial black code
1840s
1841: First cases holding that slaves in transit across Ohio become free 1849: Legislature repeals all black code laws except those prohibiting black suffrage and jury service
1843: Supreme court holds that slaves do not automatically become free by entering Illinois 1845: Court holds that all slaves remaining in Illinois are now free 1848: State constitution requires legislature to prohibit immigration and emancipation of blacks in Illinois
Statehood, 1848
1850s
1859: Personal liberty law enacted 1859: Supreme court upholds federal fugitive slave law by 3-2 vote
1853: Legislature prohibits blacks from entering Illinois 1857: Supreme court holds that slaveowners may not sue those aiding fugitive slaves
1855: Personal liberty law enacted
1854: Wisconsin supreme court holds federal fugitive slave law unconstitutional; later refuses to recognize U.S. Supreme Court decision reversing its holding (1859) 1858: Personal liberty law enacted
KEY CASES - The Slavery Crisis:
Matilda’s Case – Ohio,
1837 (unpublished; Hamilton County,
Ohio Court of Common Pleas); Birney v. State – Ohio,
1837(8 Ohio 230); State v. Farr - Ohio, 1841(unpublished)
These
cases were milestones in Ohio’s civil rights history.In Matilda’s
Case, Larkin Lawrence and his slave Matilda stopped in Cincinnati on their
way from Virginia to Missouri. Matilda escaped
and hid in Cincinnati’s black community, eventually finding work as a maid for
James Birney, a local abolitionist.An
Ohio court ordered that Matilda be returned to slavery, but Lawrence, not
content with his victory, persuaded state officials to chargeBirney with the crime of harboring a fugitive
slave.The Ohio supreme court rejected
the charge:it stated there was no
evidence that Birney knew Matilda was a slave and that in Ohio, every person
was presumed to be free.The court thus
sent a strong signal that Ohio courts would not go out of their way to help
slaveowners.
In 1839 one Farr, an abolitionist told slaves passing through Ohio that
once they set foot on Ohio soil, they were free.The slaves fled, and Farr was charged with
larceny and abduction.Salmon Chase
secured Farr’s acquittal, and Ohio Chief Justice Ebenezer Lane agreed with one of
the arguments that the Matilda court
had rejected:namely, that slaves became
free as soon as they set foot in Ohio, except in the very limited situation
where they were actively trying to escape from their masters.Farr
was one of the first cases to declare that any slave in transit across free
soil automatically became free.
Jarrot v.
Jarrot – Illinois, 1845 (7 Ill.
1); Rodney v.
Illinois Central Railroad Co. – Illinois, 1857 (19 Ill.
42)
Illinois courts
moved toward the cause of freedom more hesitantly than their Ohio colleagues.In 1843, the court upheld a 40-year indenture
under the state’s early indenture laws, even though it was clear to all that
the indenture was slavery in disguise.The
court also held that slaves did not automatically become free once they crossed
into Illinois.
But two years
later, in Jarrot, the court drew a
line against slavery.It was asked to
hold that notwithstanding the Northwest Ordinance, all children of Illinois blacks who were
slaves when the Ordinance was passed (1787) were also slaves.A narrow majority of the justices declined to
do so, relying heavily on Indiana’s
Lasselle case.
Jarrot marked a turning point:after 1845, the Illinois court interpreted the state’s
anti-black laws narrowly and was consistently reluctant to help owners of
fugitive slaves recapture their property.In Rodney, a slaveowner sued
the Illinois Central for damages when his slave escaped by jumping off a
Chicago-bound train.The justices could
easily have held that the railroad was responsible for the owner’s loss but it
refused to do so:it held because Illinois did not recognize slavery, slaveowners could not
sue for damage to their property in Illinois.
Defying the fugitive slave laws: In
re Booth – Wisconsin, 1854
(3 Wis. 1 (1854) ; reversed,__ U.S. ___
(1859));Ableman
v. Booth – Wisconsin, 1859(11 Wis. ___ (1859)); Ex
Parte Bushnell – Ohio, 1859 (9
Ohio St. 198)
In
1850, Congress enacted a Fugitive Slave Act requiring Northern law enforcement
officials to help recapture fugitive slaves.The law triggered a firestorm of protest in the North.Ohio (where opponents of slavery had recently
become a majority), Michigan and Wisconsin all passed laws stating that they
would not cooperate with enforcement efforts.
Wisconsin’s
supreme court went a step further.In
1854, a Milwaukee mob rescued escaped slave Joshua Glover from federal officials
and sent him to Canada and freedom.Sherman Booth, the mob leader, was then indicted under the Act.Booth argued that even though the U.S.
Supreme Court had rejected other challenges to fugitive slaves laws, Wisconsin
as a sovereign state did not have to go along with its decisions.The Wisconsin court agreed:the law would not be enforced in Wisconsin.
In
1859, when the U.S. Supreme Court overturned the Wisconsin court’s opinion,
Wisconsinites simply ignored it.The Booth cases created a national
sensation, eliciting praise from abolitionists, outrage from Southerners, and
qualms from northern federalists who argued that defiance of the nation’s
highest court was not the proper way to attack slavery.
In Bushnell, the
Ohio supreme court came within one vote of following Wisconsin’s lead.After
a mob rescued a fugitive slave near Oberlin its leader, Bushnell, was convicted
of violating the Act; like Booth, he asked his state’s supreme court to rescue him
from federal confinement.By a 3-2 vote,
the court declined to do so.Chief
Justice Joseph Swan, writing for the majority, held the U.S. Supreme Court had
the final word as to whether federal laws were constitutional, although he
admitted that “if a weary, frightened slave should appeal to me to protect him
from his pursuers, it is possible I might momentarily forget my allegiance to
the law and the constitution.”Swan lost
his seat at the next election, largely because of his vote.
Antebellum social reforms
The early women’s rights revolution
Prior to the 1830s, the law treated married women
as mere appendages of their husbands.Husbands legally controlled all of their wives’ property, including
wages and business assets.Women
were not allowed to vote, serve on juries, or even to make wills.
Starting in the 1830s, reformers argued that
married women should have the right to control property they brought to
the marriage.Most did so not
because they wanted to empower women, but because they wanted to shelter
wives’ assets from the creditors of husbands who had bankrupted themselves
through alcohol or bad luck, thus giving families a crude safety net.The movement gained traction when New York incorporated
a women’s property provision into its 1846 constitution.
From Godey's Lady's Magazine, 1859 (courtesy Wikimedia Commons)
Homestead laws and debtors’ prison:
The common law allowed all of a person’s assets
to be seized in order to pay debts, even basic items which the debtor
needed to survive.Debtors who did
not pay could be imprisoned until they paid their debts.
In the early 1800s, reformers began to realize
that debtors could not pay their debts if they were imprisoned and were
denied items essential to survival.Imprisonment for debt gradually died out, and many Midwestern
states formally abolished it.
Beginning in the 1840s, many states started
enacting homestead laws exempting debtors’ work tools, furniture and
homesteads (or a sum of money needed for shelter) from the reach of
creditors. Several Midwestern
states added homestead law provisions to their constitutions.
1802 (if debtor gives up all property) 1851 (unconditionally abolished)
Indiana
1847
1870 ((constitution)
--
Illinois
1861
1850 (constitution)
1845 (if debtor gives up all property)
Michigan
1844
1848
1847 (upon certification of inability to pay)
Wisconsin
1850
1850
1848 (constitution)
Iowa
1846
1849
1857 (constitution)
Minnesota
1860
1854
1857 (constitution)
The economic revolution in
the Midwest:
New York’s completion of the Erie
Canal in 1825 prompted Midwestern states to undertake
transportation projects of their own.State and local governments subsidized canal and railroad
construction; most suffered heavy losses in the depressions of 1837 and
1857.
Many Midwestern legislatures enacted “mill dam”
laws, which overturned the common-law rule that water-mill operators could
not use dams that flooded the lands of upstream neighbors even if such a
dam was essential in order to operate the mill.The new laws allowed flooding but
required the mill owner to compensate owners of flooded lands.Midwestern courts upheld the laws, but
only reluctantly..
Midwestern courts and legislatures became
increasingly “instrumentalist”:they supported entrepreneurs who would develop resources and
promote the industrial revolution.
TO LEARN MORE ABOUT THIS PERIOD, CLICK ON THE LINK BELOW. YOU CAN ALSO USE THE "SITEMAP" TAB AND THE LINKS ABOVE TO GO TO:
OTHER ASPECTS OF MIDWEST LEGAL HISTORY DURING THIS PERIOD
OTHER PERIODS OF MIDWEST LEGAL HISTORY
THE LEGAL HISTORY OF OTHER REGIONS
New states:
Michigan (1837)
Iowa (1846)
Wisconsin (1848)
Minnesota (1858)
Map of Underground Railroad routes (courtesy Library of Congress)
Headquarters of the Underground Railroad: Levi Coffin house, Fountain City, Indiana (courtesy Indiana Dept. of Natural Resources and Wikimedia Commons)
“[T]he presumption is in favor of freedom … [I]t
cannot be assumed that an act which … involves no moral wrong, nay, an act that
in many cases would be highly praiseworthy, should be made grievously criminal,
when performed in total unconsciousness of the facts that infect it with
crime.”
– Justice Reuben Wood, in Birney
James G. Birney (courtesy Library of Congress)
“All philanthropists unite in deprecating the evils
of slavery, and it affords me sincere pleasure, when my duty under the
constitution and law requires me to break the fetters of the slave, and
declare the captive free.”
- Justice Walter Scates, in Jarrot
“Property in persons being repugnant to our laws and
the genius of our State institutions, our courts will not enforce … the laws
of other States recognizing this species of property, where the cause of
action, based upon such laws, arises in this State.”
- Justice
Onias Skinner, in Rodney
“It required the enactment and enforcement of the fugitive
slave act of 1850, … disregarding in its provisions even the decencies of
legislation, as if for the very purpose of irritation and humiliation, and the
fine and imprisonment under of it of white men for the exercise of the
instinctive virtues of humanity, to awaken general inquiry. … And let it be
finally yielded, that the federal government is, in the last resort, the
authoritative judge of the extent of its own powers, and … [it] will speedily
become, if it be not already, practically omnipotent.”
-Justice
Jacob Brinckerhoff (dissenting), in
Bushnell
“[W]e have arrived at a point in our system of double
allegiance, where ‘fidelity to the state is treason to the United States, and
treason to her, fidelity to them,’ … [A states rights construction] would …
place it in the power of any one state, beyond all peaceful remedy, to arrest
the execution of the laws of the entire Union, and to break down and destroy at
pleasure every barrier created and right given by the constitution.”
-Chief Justice Luther Dixon (dissenting), in Ableman
“Who believes that [married women’s property rights]
will make a fiend of a worthy wife?No
one believes it; it is all humbug … [F]or true merit the female sex stand
much higher than the mail.They know
but little of the low, truckling and vacillating demagogism that pervades the
male portion of creation, and in that particular their ignorance is a jewel.”
“By any principle of disunion between husband and
wife, incorporated into the organization of sex, you will do far more injury
to woman than to man.Her life and
wealth consist preeminently in the fullness of reciprocated affections.Her empire is home.”
-John B. Niles, Indiana
constitutional convention (1850)
“[A]ccidents [and] sickness … may reduce a man of
limited means almost to bankruptcy.And,
if they do, the law most kindly steps in and finishes the work. … [I]t crushes
him to the earth … sickness chains him to a bed of pain, and while thus there,
it punishes him by the sacrifice of his property, because he is not well and at
work, earning money to pay his debt.Is
this the true policy of the State?”
“Can it be possible that any law thus nakedly
admitting of legal swindling, can meet with the approbation of the citizens
of this State?Law, instead of laying
traps for men’s consciences, shuld always, on the contrary, remove every
temptation possible.”
-Alvan P. Hovey, Indiana constitutional
convention (1850)
Railroad yard, 1860s - Matthew Brady (courtesy Library of Congress)