This is the fourth in a series of Schoone Fellowship Field Notes.
Putting Wisconsin’s antislavery heritage in perspective. Wisconsin takes great pride in its antislavery heritage, particularly the Northwest Ordinance (1787), which ensured that Wisconsin would be a free state, and the Booth Cases (1854, 1859), in which Wisconsin stood alone in defying the federal government’s attempt to turn northerners into slavecatchers. This pride is justified but needs perspective. When Wisconsin arrived on the American stage as a new state (1848), American slavery was two centuries old and the legal reaction against slavery had been underway for 70 years. The Booth Cases were important, but they were merely the final fireworks in the drama of American law and slavery.
Slavery: a legal dilemma in both North and South. Slavery in the South raised many legal questions. Should the law limit masters’ power over their slaves? Should it limit masters’ power to free their slaves? Should slaves be given any measure of liberty and basic rights? These questions produced complex, often-conflicting statutes and case law that provide a revealing picture of the antebellum South.
But slavery also affected the North, which produced a lesser-known but equally rich body of antislavery law. Slavery did not magically disappear in the North. Most northern states, beginning with Pennsylvania in 1780, enacted gradual emancipation statutes designed to protect owners’ property rights in the current generation of slaves. As a result, the last slaves did not disappear from northern-state census rolls until the 1850s.
Sojourn and fugitive cases. With gradual-emancipation laws in place, Northern lawmakers’ attention turned to two issues: the treatment of fugitive slaves and the less well-known “sojourn” issue of whether slaves traveling with their masters became free when they entered free states. During the early 19th century, courts in all sections held that slaves entering free states became free if their master intended to stay on free soil indefinitely, but in Commonwealth v. Aves (1836) Massachusetts’ chief justice, Lemuel Shaw, broke new ground, holding that slaves became free the minute they stepped on free soil. Other northern courts came over to Shaw’s side. Many southern courts, most notably Missouri’s in Dred Scott v. Emerson (1852), responded by moving in the other direction: no amount of time spent on free soil could confer freedom. No sojourn cases ever arose in Wisconsin, which was far from the South and from most slaveholders’ routes of travel; but Wisconsin was given a chance to make its mark in the fugitive-law controversy and it made the most of the opportunity.
In the 1820s Pennsylvania and some New England states enacted personal-liberty laws requiring that fugitives be given a hearing with full procedural due process in order to determine whether they should be returned south. In Prigg v. Pennsylvania (1842), the U.S. Supreme Court overturned these laws, holding that they were preempted by more-summary federal hearing procedures. Many Northern states reacted to Prigg by enacting new laws prohibiting their citizens and officials from assisting in slave recapture. In 1850 Congress responded by passing a new Fugitive Slave Act that required northerners to assist federal officials in recapture efforts upon demand.
The law galvanized northern antislavery opinion: antislavery lawyers asked northern judges declare the 1850 Act unconstitutional, but in Sims’ Case (1851) Chief Justice Shaw, the author of Aves, defined how far judges would go. Shaw emphasized his personal distaste for the law but held that deference to federal authority was paramount: the Supreme Court had said in Prigg that in fugitive matters states must follow federal authority, and he would do so.
Wisconsin was the only state to break ranks. The story of the Booth Cases is well known: in 1854 the Wisconsin Supreme Court, invoking states’ rights, held that it was not bound by Prigg and that the 1850 Act was unconstitutional. The Booth decision attracted abolitionist encomiums and even grudging respect in the South: Georgia senator Robert Toombs excoriated Wisconsin as “the youngest of our sisters, who got rotten before she was ripe,” but at the same time grudgingly complimented the state’s fidelity to a concept of state rights that the South was finding increasingly useful as war approached.
The Booth Cases were both less and more than is commonly realized. When the U.S. Supreme Court reversed the Booth decision in 1859, the Wisconsin Supreme Court refused to accept the reversal, but Chief Justice Luther Dixon’s dissent caused many Wisconsinites to pause and reflect and turned out to be a turning point in the Wisconsin states-rights movement. Nevetheless, Booth inspired other antislavery judges: Ohio’s supreme court missed joining Wisconsin by one vote (In re Bushnell, 1858), and Maine’s court joined Wisconsin on the eve of the Civil War (In re Opinion of the Justices, 1861).
The spirit of Booth also produced a final states-rights fireworks display after the Civil War. The war’s decision in favor of union and federal supremacy did not change Wisconsin justice Byron Paine’s devotion to state rights. In a series of postwar cases, most famously Whiton v. Chicago & Northwestern Railroad Co. (1870) and In re Tarble (1870), Paine persuaded his colleagues to contest federal removal statutes and assert the power to issue habeas corpus writs against federal officials. The U.S. Supreme Court’s reversals of Whiton and Tarble (1872) definitively established the high Court’s position as the final authority on federal constitutional questions. The Booth Cases thus performed a crucial, albeit ironic and unintentional, role in cementing the fundamental change in the federal-state balance of power that the war had wrought.