By Margo Kirchner
Second of two parts
Beginning shortly after his escape from a Milwaukee jail in 1854, Joshua Glover was the catalyst for Wisconsin judicial and legislative declarations that the Fugitive Slave Act of 1850 was unconstitutional and void.
“The real emphasis of Glover’s escape comes in the court actions after,” said Clayborn Benson, executive director of the Wisconsin Black Historical Society. Those decisions took the “Glover incident” to a national level, reported in newspapers across the country, he said.
As described by author H. Robert Baker in The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War, “[t]he rescue of Joshua Glover became a six-year struggle not only to determine whether the Fugitive Slave Act was unconstitutional but to determine the substance and meaning of the Constitution itself.”
Within days of the Glover jail break, Sherman Booth, the publisher of the Free Democrat abolitionist newspaper who helped whip up the crowd that freed Glover, was arrested and charged with aiding the escape of a fugitive slave in violation of the act. Booth appeared before the federal commissioner on March 21 and was released on bail until formal indictment and the next district court trial date in July. He kept reporting in his newspaper about his own case.
In late May, the federal court commissioner sent Booth back to jail in the custody of U.S. Marshal Stephen Ableman.
Booth applied to Wisconsin Supreme Court Justice Abram Smith for a writ of habeas corpus, arguing that his imprisonment by Ableman was illegal because the Fugitive Slave Act of 1850 was unconstitutional and his warrant was defective. Smith granted the writ, ruling that the act was unconstitutional. Ableman complied with Smith’s order for Booth’s release but appealed the decision to the full Supreme Court, then consisting of three justices: Smith, Chief Justice Edward Whiton, and Justice Samuel Crawford.
On July 19, 1854, in a two-to-one decision, the Wisconsin Supreme Court affirmed Smith’s decision to discharge Booth from custody. Whiton and Smith found that the state court had the power to protect the state’s citizens from illegal restraint, the warrant for Booth’s arrest failed to charge a crime, and the Fugitive Slave Act of 1850 was unconstitutional.
Whiton wrote the Act illegally conferred power on appointed commissioners, rather than judges. Second, he said, it denied the alleged fugitive the right to have his or her case tried to a jury in violation of the right to due process. Whiton focused on the danger to a free citizen of being taken into slavery when the evidence determining whether the person was a slave was presented in the state of the slave owner, with no opportunity for cross-examination of witnesses or submission of contrary evidence. The certificate of that court was then taken as conclusive in the state where the person was captured, causing the commissioner to order the person’s return.
“We are at a loss to perceive how this proceeding, by virtue of which a freeman becomes a slave, can be justly called ‘due process of law,’” Whiton wrote.
Smith concurred in a lengthy opinion based on the Constitution’s reservation of rights to the states. States, he wrote, retained the right to determine their own process for a slave owner’s claim.
“In Virginia he may be, indeed, a chattel; but in Wisconsin he is a MAN. . . the laws of Wisconsin regard him as a person here,” Smith wrote. Moreover, he said, there was no basis for federal law enforcement or court officials’ involvement in the return of slaves. He continued:
Had the Northern States imagined, that by assenting to this clause of the Constitution, they were thereby conferring upon the federal government the power to enter their territory in pursuit of a runaway negro, . . . to subject their houses to search, and to override their own laws and municipal regulations, and that they were parting with all power to regulate the mode of procedure by which that clause was to be carried into effect; does any sane man believe that they would ever have assented to it?
Crawford dissented, writing that the Wisconsin courts should decline to interfere with federal custody and that Congress had the constitutional power to pass the act. The dissent is thought to have caused his loss to Orsamus Cole in the 1855 election.
Ableman, the marshal, sought review in the U.S. Supreme Court. The state Supreme Court clerk forwarded the record to the U.S. Supreme Court when ordered.
This is the second of two posts about Joshua Glover. Read the first one here.
Meanwhile, in July 1854, Booth, and two other men who assisted Glover were indicted on criminal charges of aiding a fugitive slave in violation of the 1850 act. One, John Messenger, who had spirited the just-escaped Glover to a abolitionist's home in Waukesha, died shortly after his arrest and release on bail. The other, attorney John Rycraft, who had created a "vigilance committee" to ensure Glover's rights were protected, was tried and convicted in November 1854 and sentenced to ten days in jail and a fine of $200.
Booth’s criminal trial took place in early January 1855. The jury found him guilty, and Miller sentenced him to one month of imprisonment and a fine of $1,000, with Booth to remain in custody until the fine was paid.
A few days later Booth and Rycraft applied to the Wisconsin Supreme Court for writs of habeas corpus, arguing that the federal court trial proceedings were void. The Wisconsin Supreme Court held, this time 3-0, that Booth’s and Rycraft’s convictions were illegal and ordered them discharged from imprisonment. All three justices agreed that the indictments in the cases failed to charge and the evidence at the federal trial failed to prove any offense within the jurisdiction of the federal court.
Whiton and Smith again agreed that the states’ reserved powers and the guarantee of habeas corpus under the U.S. Constitution, plus the need for state government to protect its citizens, allowed state-court review of federal proceedings. Further, they held, the Fugitive Slave Act of 1850 was unconstitutional.
Smith wrote: “[B]elieving as I do that Congress had no power to pass the act of 1850, that the duties and obligations declared by the Constitution were imposed upon the States, and all power in relation thereto reserved to the States and the people, I am compelled to hold that the act is unconstitutional and void, and can confer no authority upon the federal courts.”
Crawford wrote that if the district court had proper jurisdiction the Wisconsin court would not have had power to review it.
Booth was released, but the U.S. attorney general petitioned the U.S. Supreme Court for review the case. This time the Wisconsin Supreme Court directed the clerk not to respond or send the record, despite a U.S. Supreme Court directive. Disputes about the case delayed consideration until 1857.
Then, in a unanimous decision delivered by Chief Justice Taney in 1858, the U.S. Supreme Court struck down the Wisconsin high court’s decisions as violations of the supremacy clause of the U.S. Constitution, which makes federal law the supreme law of the land. Taney rebuked the Wisconsin court, writing that its decisions, if maintained, would “subvert the very foundations of this Government.”
The Wisconsin Supreme Court “has not only reversed and annulled the judgment of the District Court of the United States, but it has reversed and annulled the provisions of the Constitution itself,” Taney said.
The U.S. Supreme Court confirmed its review power over state supreme courts and held that state courts have no power to issue a writ of habeas corpus regarding a person in federal custody. Taney warned that if a state court “should attempt to control the marshal or other authorized officer or agent of the United States, in any respect, in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference.”
Taney dealt with the constitutionality of the Fugitive Slave Act of 1850 in one sentence: “[A]lthough we think it unnecessary to discuss these questions, yet, as they have been decided by the State court, and are before us on the record, and we are not willing to be misunderstood, it is proper to say that, in the judgment of this court, the act of Congress commonly called the fugitive slave law is, in all of its provisions, fully authorized by the Constitution of the United States.”
Commentator Jeffrey Schmitt, in the Virginia Law Review in 2007, wrote that Ableman v. Booth is widely recognized as one of the most historically significant [U.S.] Supreme Court decisions of the nineteenth century” but that the Wisconsin Supreme Court’s decision is also noteworthy. It was “the most extreme declaration of state judicial power north or south of the Mason-Dixon Line,” written by the highest court in the nation to rule against slavery.
“Let’s ask the question: Was Wisconsin the only one doing this? No,” said Benson. “But it’s the only one doing it out in the open in daylight hours.”
In other northern cities, abolitionists freed arrested escapees before their return to the South but did so during the night or only when they would not be caught, he said. But in Wisconsin the state’s highest court ruled on the side of the abolitionists’ actions in freeing Glover.
Glover’s rescue, according to author Baker, was “the central event in Wisconsin during the political scuffles and ideological battles that marked the coming of the Civil War.”
There are scattered commemorations in southeastern Wisconsin of Glover and his arrest and escape. Two murals along Fond du Lac Avenue on the underpass of I-43 commemorate the jail break, as does a historical marker in the northeast corner of Cathedral Square and a painting in the Milwaukee County Historical Society’s collection. [photos of mural and historical marker (taken by me) and painting (by Clarence Monegar and attributable to the Milw Co Hist Soc]
Also in Milwaukee, Glover Avenue is a two-block length of street intersecting Booth Street and overlooking the downtown Milwaukee skyline. In 1857, Milwaukee named Booth Street for the abolitionist who spearheaded Glover’s rescue. But Glover Avenue was not named until 1994, at the urging of Riverside High School students. A sign at the corner of the two streets reads: “May all who traverse the intersection named for these two men be inspired by their struggles in the cause of human freedom.”
A plaque stands on a stone pillar in Monument Square in Racine. Photo by Margo Kirchner.
Glover has also been recognized in Etobicoke, now part of the City of Toronto. Etobicoke established Joshua Glover Park, where in July 2021 the Toronto mayor and artist VerCetty unveiled a bronze bust of Glover, honoring him as an abolitionist figure beloved by his community.
The piece is part of a Toronto plan regarding art reflecting diversity, using “public art as a tool for social change,” said VerCetty in a recent interview. VerCetty is working on an interactive augmented reality program for the monument to extend its reach to those who cannot visit the park.
VerCetty said that Glover’s history “speaks of the community coming together.” In Etobicoke, Glover was at one point accused of trying to kill a white man, but the community, especially the white Montgomery family, rallied around him, VerCetty said. “People saw there was something special about him, but also his humanity . . . not just the color of his skin,” VerCetty remarked.
ArsMusica, an enthocultural music and opera company in Toronto, is producing an opera based on Glover’s life, to be completed in 2022.
Article IV, § 2 of the U.S. Constitution was superseded by the Thirteenth Amendment, which outlawed slavery.
For more information:
Ruby West Jackson & Walter T. McDonald. Finding Freedom: The Untold Story of Joshua Glover, Runaway Slave. Wisconsin Historical Society Press, 2007.
H. Robert Baker. The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War. Ohio University Press, 2006.
J. Schmitt. “Rethinking Ableman v. Booth and States’ Rights in Wisconsin,” Virginia Law Review, vol. 93, 2007.
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