5.2.1. The Midwest, 1820-1865: The Midwest and the Slavery Crisis

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Matilda’s Case – Ohio, 1837 (unpublished; Hamilton County, Ohio Court of Common Pleas); Birney v. State – Ohio, 1837 (8 Ohio 230); State v. Farr - Ohio, 1841  (unpublished)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 charge  Birney 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 BoothWisconsin, 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. 



“[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