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A. The Legal Status of Blacks from Statehood to the Civil War

The end of slavery in Michigan was made official with statehood. Michigan's first constitution, adopted in 1835, provided that: "Neither slavery nor involuntary servitude shall ever be introduced into this state, except for the punishment of crimes of which the party shall have been duly convicted." (1)

Although slavery was proscribed, its underlying racist ideology remained. In Michigan, as in virtually every region of the United States, a majority of whites believed in the biological inferiority of blacks and in their own innate superiority. It was not inconsistent, however, for many whites to abhor slavery as immoral and also openly rail over the likelihood of living with blacks. Clearly, advocating against black slavery was not incompatible with the prevailing notion of white supremacy. As a result, long after Michigan achieved statehood, laws were enforced, cases decided, and customs followed that denied blacks the basic rights of citizenship.

The Midwest region of the United States, which included Ohio, Indiana, Iowa, Michigan, Wisconsin and Minnesota, was regarded as second only to the South in its citizens' resolve to white supremacy and racial discrimination. (2) "To most mid-westerners, Negroes were biologically inferior persons to be shunned by all respectable whites...' Our people [of Indiana] hate the Negro with a perfect if not a supreme hatred.'" (3)

Every state in the Midwest enacted laws that disabled black residents and discouraged the emigration of others. Indiana (1850), Illinois (1853) and Iowa (1857) enacted stringent laws forbidding blacks from settling in their states. All seven Midwest states denied black suffrage and excluded them from military service. (4) As late as the 1850s, Indiana and Ohio adopted constitutions that denied the vote to blacks, and in Michigan (1850), Iowa (1857) and Wisconsin (1857) referenda seeking the franchise for blacks were resoundingly defeated. (5)

Interracial marriages were illegal in Indiana, Illinois, Ohio as well as Michigan. (6) The Michigan version of miscegenation law, which was not enacted until 1846, had an obviously telling juxtaposition of blacks with other "disabled" persons who were forbidden to marry: "No white person shall intermarry with a negro, and no insane person or idiot shall be capable of contracting marriage." (7) Michigan's prohibition against interracial marriages remained in effect until 1883 when a statutory amendment legalized white-African marriages and made legitimate the offspring of such unions. (8)

Although race legislation varied within the Midwestern states, it was not uncommon for blacks to be barred from military service, jury duty and from testifying against whites in court. Characteristically, they paid the taxes imposed on white citizens but their children were relegated to racially segregated, inferior public schools. (9)

Some of Michigan's post-statehood "black laws" were "reaffirmations" of territorial laws that the new constitution declared in force until altered or replaced. The Constitution of 1835 limited voting to "every white male citizen above the age of twenty-one years." (10) This disenfranchisement effectively excluded blacks from jury duty since only electors could serve." The territorial laws that limited militia service to whites continued in force after 1835. (12)

Among the most odious of the Territory's laws was the 1827 "Act to regulate Blacks and Mulattoes, and to Punish the Kidnapping of Such Persons." (13) The act was intended to exclude blacks and mulattoes from the Michigan Territory. (14) It required that they possess valid certificates of freedom or proofs of birth before they could reside or settle in the Michigan Territory and register such proofs with a county clerk. (15) In addition, blacks and mulattoes entering the Territory had to post a $500 bond, an enormous sum in 1827, as security for their good behavior and to insure they would not become public charges. (16) The act also made it a misdemeanor to "harbor or secrete" a black or mulatto or to prevent a lawful owner from repossessing a servant. (17)

In 1828, because the act was unpopular and widely disobeyed, it was amended to empower public officials to evict noncomplying blacks. (18) The amendment also obligated Michigan judges to include the act's provisions in their charges to grand jurors "who shall diligently inquire if the said act is duly executed, and present any violation of the same that may come to their knowledge." (19) In response to this legislation, the Wayne County Sheriff published the law's requirements in the Territory's newspapers as a "Notice to Blacks & Mulattoes." (20) Notwithstanding the legislative will, the act was rarely enforced but it remained in force after statehood. (21)

Socially, blacks in Detroit were victimized by a severe color-caste that segregated them in society's lowest strata in all areas. Black children attended segregated public schools. (22) Housing discrimination in Detroit confined blacks primarily to an area that contained the city's poorest housing on Detroit's near east side. (23) The employment opportunities available to blacks were limited to the lowest-skilled, lowest paying jobs. (24) Even in church, segregation thrived. The first black church in Detroit, the Second Baptist Church, (25) was founded because blacks attending the white First Baptist Church had to sit in the church's black-only gallery, unable to "take their seats below with the whites." (26)

Negrophobia, not fact, motivated much of the white fears over a putative black influx. In the early nineteenth century frontier, Detroit was actually home for relatively few blacks. Census enumerations for Detroit showed only 67 blacks in a total population of 1,422 in 1820; 126 of 2,322 in 1830; and 138 in about 5,000 in 1834. Some increases in black migration to Detroit occurred after the late 1830s, when the black codes in the South became harsher. On the other hand, the so-called "Blackburn" race riot of 1833 and the demands that followed it for enforcement of the 1827 Territorial Act discouraged black settlers. (27)

Relatively significant black emigration began in Michigan after about 1840; between 1840 and 1850, blacks in Detroit increased from 193 to 587, and in the entire state from 707 to 2,583. In 1860, the year before the Civil War began, blacks in Michigan numbered 6,799, representing only 0.9 percent of the total population. (28) Nevertheless, even these modest increases caused alarm. A Detroit Free Press editorial on May 29, 1861 complained that blacks were "overrunning" Detroit. Fears, particularly among German and Irish immigrant workers, that the Civil War would release into the Midwest large numbers of crude blacks to compete for white unskilled jobs fueled existing hostilities. Although much of the hostility toward blacks was economic, the "opposition to a possible Negro influx was not confined to any ethnic group, political party, class, or particular part of the Midwest. Most Midwesterners simply wanted their section kept free from Negroes." (29)

In the Midwest, the stridently anti-Negro democratic newspapers, which included the Detroit Free Press, wrote editorials against emancipation and vilified blacks as semi-human, reinforcing popular stereotypes of "the Negro as a lazy, shiftless, vicious, and biologically peculiar being." (30) The democratic editors frequently expressed their contempt for blacks by characterizing them as "innately indolent or criminal," and often referred to them in print as "Sambo," "Cuffie," and "niggers." For example, when two black shoemakers sought membership in the Shoemakers Protective Union in Detroit, the Detroit Free Press wrote: "The darkey having forced himself into our churches and our schools... is now endeavoring to force himself into association heretofore composed exclusively of white men." (31)

Many nineteenth century newspapers characterized an era of personal journalism as they often functioned as "house organs" for political parties. In Michigan, frequent and caustic editorial battles occurred between the Democratic, anti-Civil War and generally anti-Negro Detroit Free Press and the Republican, pro-Civil War and generally pro-Negro The Detroit Advertiser and Tribune. The Free Press was owned by Wilbur F. Storey from 1853 to 1861, and the paper was said to have been influenced by his tenure long after he sold it. Storey was described as hating Negroes, whom he regarded as sub-human, incapable of living among whites and not even remotely worthy of consideration for freedom. (32) With the Detroit Free Press in the forefront, the democratic press supported the anti-emancipation movements, helped harden popular public opinion against blacks and galvanized the opponents of their migration into the Midwest. These newspapers, undoubtedly, contributed as well to the racial violence in the Midwest before and during the Civil War years. (33)

Race riots occurred in Detroit in 1833, 1839, 1850 and 1863; those in 1833 and 1863 were major and required the militia's intervention. (34) Both reflected the tense race relations that existed in the city before and after statehood.

The above briefly summarizes the legal and social contexts that confronted Michigan blacks at the end of the state's slavery period. It shows as well the substantial opposition to their incipient struggle for civil, political and social rights that was to be waged throughout the nineteenth century. Slavery's legacy was deep and ubiquitous. After statehood, Michigan's laws and court decisions reflected the continuing subjugation of black people. The law's reach encompassed virtually all the important aspects of their civil and political existence. Laws confined them and their children to an inferior, powerless and near outcast status. Severely limited in opportunities for work, education, housing, civil rights and social activities, blacks and their white supporters worked for equality from within both the legal and political systems. Their greatest efforts and militancy, as the historical and legal records show, focused on the fugitive slave question, the right to vote and equality in education and public accommodations. Similarly, the court decisions and events that follow focus on these areas and span the period between Michigan's statehood period and the end of the Civil War. A few Michigan cases received national prominence.

B. Fugitive Slaves in Michigan

Abolitionists and anti-slavery organizations were active in Michigan before and after statehood. The Michigan State Anti-Slavery Society, which was formed in 1837, (35) had active chapters throughout the state, (36) including Detroit. (37)

White abolitionists and free blacks (38) were "conductors" in Michigan's portion of the Underground Railroad network, which by 1838, was in full operation. (39) Michigan's close proximity and long border with Canada made it a principal terminus for fugitive slaves. Many passed through Detroit, across the Detroit River into Windsor, a major point of entry into Canada. (40) By 1860, sixty thousand blacks were reported in Upper Canada, forty thousand of whom were fugitive slaves. (41)

The Northwest Ordinance contained a section that allowed the recapture of fugitive slaves within the Northwest Territory. (42) Also in force during Michigan's territorial and early statehood periods were the Fugitive Slave Act of 1793 (43) and article IV, section 2, of the United States Constitution, which provided:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. (44)

In 1850, the Congress, seeking to limit the authority of the states and to enlarge federal jurisdiction over slavery, passed a new fugitive slave law. Under this law, federal marshals could recapture slaves in free states, and the fines allowed by the 1793 law were doubled. (45)

Congress' action was preceded by the 1842 United States Supreme Court decision, Prigg v. Pennsylvania. (46) In Prigg, an 1826 Pennsylvania statute forbidding the removal of colored persons from the state to enslave them was declared unconstitutional and void. (47) The Court held that the 1793 federal fugitive slave law was constitutional and that the Federal Constitution, article IV, section 2, vested in Congress exclusive legislative power regarding fugitive slaves. (48) The states, therefore, had no authority to legislate on the subject nor could they interfere with or impede the federal mandate. (49) In keeping with exclusive federal jurisdiction, the Court also ruled that state magistrates were not bound to act under the federal law but could do so if they chose, unless specifically prohibited by state law. (50)

In 1855, as a response to the 1850 federal fugitive slave law, Michigan, as did other Northern states, enacted a personal liberty law: "an Act to protect the rights and liberties of the inhabitants of this State." (51) This act applied to state inhabitants not citizens since blacks at the time were not citizens under Michigan law. It prohibited Michigan public officials from assisting federal marshals in the recapture of fugitive slaves, but required county prosecuting attorneys to defend them and barred the use of county jails for their detention. (52)

By the mid-19th century, modest Black population growth exacerbated the existing tensions in Detroit and caused less than tranquil race relations. Black social and political conditions that co-existed with abolitionism must have appeared, at least on the surface, as social "schizophrenia." On one hand, a majority of white citizens opposed slavery. On the other hand, they did not want blacks as neighbors and were xenophobic with regard to granting them basic civil rights. Two major events that involved fugitive slaves, the "Blackburn" riot and the Crosswhite case, were real life illustrations of this contrast. The Blackburn affair represented as well the tenuousness of race relations in Detroit.

1. The Blackburn Affair

The Territorial Act of 1827 to regulate blacks and mulattoes, as previously noted, was unpopular and largely unenforced following its enactment. (53) It was resurrected, however, after the so-called "Blackburn Case" or the "Negro Riot of 1833" occurred in Detroit. (54) The incident became the most famous of Michigan's fugitive slave cases. (55)

On July 3, 1831, Thornton and Rutha Blackburn escaped from their owner, one Fowler, of Louisville, Kentucky. They arrived in Detroit on July 18, 1831 and lived in Detroit for the next two years. (56) During this time, Mr. Blackburn, a mason by trade, worked in Detroit and was highly regarded; "a respectable, honest and industrious man and considerably superior to the common class of Negroes." (57)

In the spring of 1833, Fowler learned the whereabouts of the Blackburns and sent his agents to Detroit to apprehend them. In accordance with the Territorial Act of 1827, evidence consisting of oral testimony and affidavits was given before a justice of the peace establishing "... that the said Blackburn and Rutha, were held to service by the laws of Kentucky and were the property of the persons claiming them...," (58) Accordingly, the magistrate ordered the slaves taken into custody for delivery to Fowler's agents.

The hearing, which was held on a Saturday, was attended by a large group of blacks. (59) The Wayne County Sheriff, believing that members of the crowd might attempt to free the Blackburns, jailed them for safekeeping over the weekend. (60) The plan was to place the Blackburns on the steamer Ohio the following Monday to begin their return to Kentucky. (61)

On Sunday, a large crowd of blacks, armed with clubs and intent on preventing the Blackburns' removal to Kentucky, gathered near the jail. (62) Later, two friends of Mrs. Blackburn, Mrs. Madison J. Lightfoot and Mrs. Deacon G. French, were permitted to visit her for the day in jail. (63) During the visit, Mrs. French exchanged clothing with Mrs. Blackburn. At dusk, Mrs. Blackburn, posing as Mrs. French, left the jail with Mrs. Lightfoot. (64) She was taken immediately across the Detroit River into Canada. (65) The "switch" was not discovered until Monday morning. (66)

Meanwhile, Mr. Blackburn, who remained in confinement, was to be delivered to the steamboat on Monday afternoon. (67) By then, a crowd of Blacks had gathered near the jail for the purpose of freeing Mr. Blackburn. (68) Many had come over from the Negro settlement at Maiden and other Canadian towns as well as from Detroit and its surrounding communities. (69) When the sheriff and his deputies appeared in front of the jail with Blackburn, the sheriff was attacked and severely beaten. (70) Blackburn, in keeping with a prearranged plan, was spirited away and later the same day was transported across the Detroit River to freedom in Canada.

After news of the Blackburn affair spread throughout the city:

[f]rom every direction men appeared armed with guns, pistols and swords, and military patrol roamed the streets of the city arresting every negro man and woman found thereon. The jail was soon crowded to the door with negro prisoners.... For the balance of the month of June and all during July Detroit was an unhealthy place for colored people. (71)

Detroit's Mayor Chapin requested the assistance of federal troops. United States Secretary of War, Lewis Cass, who happened to be in Detroit at the time, ordered a company of federal troops from Fort Gratiot to patrol the city. (72)

For blacks, the aftermath of the Blackburn affair was severe. As Kooker wrote:
When news of the approach of the troops reached Detroit the negroes
almost immediately began an exodus from the city. Racial antipathy
engendered by the riot was now fanned by new waves of negro-phobia. The
result was an unwillingness on the part of the whites to give them
employment. Many negroes promptly sold their property and fled from the
persecution. Some even 'left their property unsold and never
returned,.... For nearly a year this state of things continued.' (73)

Before the Blackburn affair, blacks were already generally unwelcome in Detroit. After the riot, the fears and hostility whites harbored toward them intensified. In June 1833, Detroit Mayor Marshall Chapin issued a proclamation that ordered "all Negroes out of town who could not give a certificate of freedom and bond of good conduct" pursuant to the 1827 black code. (74) A committee of ten prominent whites appointed to investigate the riot blamed it on the black community. They also recommended enforcement of the 1827 act, a curfew on Negroes, and a prohibition against blacks landing boats on the Detroit shore. (75) As to fugitive slaves, the citizen's committee cautioned: "Negroes who resort to this frontier, for the most part are of the most worthless of the slave population; we can have no adequate motive to encourage their emigration hither." (76) In large measure because of the "Blackburn" riot, black migrants avoided Detroit until the late 1830s. (77)

2. The Crosswhite Case
900 FEET NORTH 8[degrees] EAST
JANUARY 26, 1847

The above passage is the text of a historical marker located in Marshall, Michigan. It commemorates the failed attempt to capture a fugitive slave family, Adam and Sarah Crosswhite and their five children, on January 27, 1846 in Marshall. The marker also alludes to two of the myths that evolved from the incident--that it was responsible for passage of the federal Fugitive Slave Act of 1850 and the Civil War. It has also been claimed that Harriet Beecher Stowe portrayed the Crosswhite affair in her epic novel, Uncle Tom's Cabin. Recent credible research has discredited these claims. (78) The Crosswhite case, however, was and remains a significant episode in Michigan history. It exemplified, as did many similar occurrences throughout the North, the conflict between the North and the South that eventually "culminated in the election of Lincoln, the great Civil War, and the expenditure of oceans of blood and millions of treasure and the freeing of the slaves." (79) The Crosswhite case also demonstrated the zeal with which Michigan residents, white as well as blacks, protected fugitive slaves and resisted enforcement of the federal 1793 Fugitive Slave Law. (80)

In 1846, Marshall, a village of about 2,000 residents, was on the route of the Underground Railroad from Niles to Detroit and, ultimately, Canada. Many of its residents were strongly antislavery as were its two newspapers, the Statesman and the Expounder. (81) In 1842, the Michigan Anti-Slavery Society held its meeting in Marshall where at the time about fifty blacks, many escaped slaves, lived. (82)

Adam Crosswhite was described as a "mulatto." He was born in 1799 in Kentucky, the offspring of a slave and her master. While an infant, he was given to his owner's half-sister, a Miss Crosswhite. Later, he was sold, and at age twenty he was traded to Frances Giltner, of Carroll County, Kentucky. Two years later, Adam married. He and his wife, Sarah, had four children born in Kentucky. (83) In 1843, after learning that Giltner planned to break up their family, Adam, then age forty-four, Sarah and the four Crosswhite children escaped. (84) The Crosswhites travelled the Underground Railroad through Ohio, Indiana, and Southwestern Michigan to Marshall where they settled. Adam found work and the family was living in a cabin on Marshall's eastern edge. A fifth child was born to the Crosswhites in Marshall. (85)

Accounts of the attempted capture of the Crosswhites are lengthy, complicated, and sometimes conflicting. The lawsuit that resulted from the affair is reported in Giltner v. Gorham. (86) Approximately seven of the case's nine pages comprise the facts taken from sworn witnesses and, notwithstanding some contradictory testimony, are the best source of what actually happened in Marshall during the early morning of January 27, 1847. (87)

On January 26, 1847, Francis Troutman, David Giltner, the son of Francis Giltner, and two other Kentuckians arrived in Marshall. Almost a year earlier, in December 1846, Troutman had tracked the Crosswhites to Marshall and verified their identities. Troutman, the grandson of Adam Crosswhite's previous owner and a nephew of Francis Giltner, was described as a "young, level-headed lawyer." (88) As was apparent throughout the affair, Troutman meticulously complied with the requirements of the 1793 Federal Act for the recovery of slaves. For example, because the act required a warrant and the presence of proper legal authority during the arrest of a fugitive slave, (89) Troutman hired a local Deputy Sheriff, Harvey Dickson, to aid in the Crosswhites' arrests.

While accounts of the initial confrontation at the Crosswhite cabin vary, including reports that weapons were brandished and fired, it is clear that news of the episode spread quickly throughout Marshall. A large crowd, by one estimate nearly three hundred, white and black, collected at the cabin. An account of the events that followed is contained in the Giltner case:

Threats against the lives of the Kentuckians were made, if they persisted in taking the fugitives. They were denounced as kidnappers, and some proposed to tar and feather them--others to massacre them. About this time Charles T. Gorham, Herd and Combstock, defendants, came on the ground.... This was about eight o'clock in the morning. A large crowd had assembled, who uttered a good deal of menace. The whites encouraged the blacks.... Gorham said to the witness, "You have come here after some of our citizens." Witness [Troutman] replied that he had come as agent of Giltner, the owner of the slaves, to take them before a justice, with the view to establish the right of the plaintiff to their services. Gorham replied, "You can't have them, or take them: this is a free country, and these are free persons.... There is a great deal of danger in making the attempt to take them... [w]e will not allow them to be taken." (90)

Charles T. Gorham was a Marshall banker. With his arrival and that of other prominent Marshall citizens, including O. C. Combstock, Asa B. Cook, John M. Easterly, and Jarvis Herd, the equivalent of a town meeting was convened at the scene. (91) In the course of the "meeting" three resolutions, two by the locals and one from Troutman, were offered to the crowd and put to a vote. (92) The first, which was carried by general acclamation, came from Gorham: "Resolved, that these Kentuckians shall not take the Crosswhite family by virtue of moral, physical or legal force." (93)

Following the resolution's passage, Troutman, with apparent calm, addressed the crowd and asked for the names of those who were preventing him from lawfully taking the slaves. Of the several who complied, Gorham "requested that his name might be put down in capitals; and he requested witness [Troutman] to bear it back to the land of slavery as a moral lesson...," (94) Next, Troutman offered a resolution of his own. "Resolved, that I, as agent of Francis Giltner, of Carroll County, Kentucky, be permitted peaceably to take the family of Crosswhite before Sherman, a justice, that I may make proof of property in the slaves, and take them to Kentucky." (95) This resolution, predictably, failed. A third resolution was placed before the assembly: "Resolved, that these Kentuckians leave town in two hours.... Or they shall be tarred and feathered, and rode on a rail.... Or they shall be prosecuted for kidnapping or housebreaking." (96)

Following the last resolution, Troutman made out a warrant and requested that the Deputy Sheriff Dickson arrest the Crosswhites. Dickson, apparently responding to the obvious, refused. He, instead, arrested Troutman on warrants sworn to by two members of the crowd charging Troutman with assault and battery and housebreaking. Troutman was tried on these charges before Justice Randall Hobart later the same day and a portion of the next. He was fined one hundred dollars on the trespassing charge. (97) Meanwhile, the Crosswhites were taken by covered wagon to Jackson, placed on a train to Detroit, and later they crossed safely to Canada.

Upon returning to Kentucky, Troutman along with Giltner, "began a campaign of legal revenge designed to portray Marshall's citizens as flagrant violators of an inadequate and unenforceable federal law." (98) The Kentucky legislature passed a resolution demanding redress from Michigan and forwarded it to the Michigan legislature. A report of the affair that called for a new fugitive slave law was given in the U.S. Congress on December 20, 1847."

Troutman returned to Michigan in May 1848. His purpose was to gather evidence and initiate a lawsuit against Gorham and others, black and white, (100) who had aided the Crosswhites' escape. The suit, Giltner v. Gorham, which sought the value of six slaves, opened on June 1, 1848 in Detroit in the U.S. Circuit Court for Michigan before Justice John McLean. (101) Justice McLean was well known as a staunch opponent of slavery.

In his opinion, Justice McLean recounted at length the often contradictory testimony of the many witnesses who testified as to the events of January 27, 1847. As to Troutman, the plaintiffs main witness, he informed the jury: "considering the circumstances under which he was placed, he bore himself with moderation and excellent temper. To the taunts and abuse which were thrown against him... he made no reply, but sustained himself with manly firmness." (102) Notice to the jurors that the case was one of first impression and had importance beyond the immediate litigants was included in the court's instructions.

This, gentlemen, is an important case. It involves great principles, on which in a great degree depend the harmony of the states, and the prosperity of our common country. The case has acquired great notoriety by the action of the Kentucky legislature, and of the senate of the United States. It is the first one of the kind which has been prosecuted in this state. (103)

Notwithstanding any personal views on slavery, Justice McLean, in what has been described as a "retreat to formalism," (104) charged the jury that they were obligated by their oath to apply the law, even if they believed it unjust:
The defendants' counsel, to some extent, have discussed the abstract
principle of slavery. It is not the province of this court, or of this
jury, to deal with abstractions of any kind. With the policy of the
local laws of the states, we have nothing to do. However unjust and
impolitic slavery may be, yet the people of Kentucky, in their
sovereign capacity, have adopted it. And you are sworn to decide this
case according to law--the law of Kentucky as to slavery, and the
provisions of the constitution, and the act of congress in regard to
the reclamation of fugitives from labor. This provision of the
constitution is a guaranty to the slave states, that no act should be
done by the free states to discharge from service in any other state,
any one who might escape therefrom, but that such fugitives should be
delivered up on claim being made. This clause was deemed so important,
that, as a matter of history, we know the constitution could not have
been adopted without it. As part of that instrument, it is as binding
upon courts and juries as any other part of it. (105)

The jury, after a night's deliberation informed the justice they could not agree and they were discharged. On November 10, 1848, a second trial was held in Detroit before Judge Ross Wilkins. This time the jury returned a judgment for the plaintiff which including court costs totaled about $4,500. (106) Because the defendants were of modest means, the judgment was paid by Zachariah Chandler of Detroit, a wealthy anti-slavery Whig. (107)

Justice McLean's instruction to ignore "abstract principles of slavery" required jurors to obey a positive law they may have strongly opposed. The first Giltner jury apparently refused, although evidence of the defendants' guilt, as McLean noted, was overwhelming. Accordingly, abstract principles of law may have yielded to practical politics or to the jurors' moral invocations over "slavecatching" on free soil. The efficacy of fugitive slave laws was diminished, no doubt, because such laws exceeded most Northern whites' tolerance of willing obedience to repugnant laws. (108)

The prodigious horror that attended the spectre of returning to slavery from freedom is preserved in escaped slaves' personal narratives. (109) While such narratives from Michigan are sparse, (110) one striking recollection by a witness to a fugitive slave's recapture on Jefferson Avenue in Detroit was reported in the December 23, 1899 Detroit Journal: (111)

Pontiac, Dec. 22--Special
Seventy-one years seems a long time to look back in a man's life and
chronicle events that occurred then, but there is now living in Pontiac
a man 84 years of age... who recalls vividly events that transpired in
those early days of Michigan.
Chauncy Green is his name. He relates the following incident that came
under his observation when, as a boy of 13, he, with an older brother,
had gone to Detroit to sell a load of hogs:...
"I was strolling about the town... on Jefferson Avenue, west of
Woodward. Just beyond that point my attention was attracted to three
men who were coming along the street locked arm in arm. What seemed
particularly strange to me was that the center of the trio was a black
man. They seemed to be attracting considerable attention from other
people also. As they neared Brown's store Brown ran out and, standing
in front of them, said, excitedly:
'"Here, that is my man! What are you going to do with him? Let him go!
Let him go!"
"Without replying, one of the tall Kentuckians (as the white men proved
to be) put his disengaged hand deliberately into his inside breast coat
pocket and drew a pistol. Pointing it toward Brown, he said:
'"Out of the way, please.'
"Their argument proved effective--Brown left.
'"They proved to be professional slave hunters, and, taking their 'man'
to the lockup, left him there for the night, while they pursued their
business. Next day some citizens secured the services of Charles
Larned, father of the late Sylvester Larned, and tried to have the
black man, an escaped slave who had been doing odd jobs for Mr. Brown,
released; but the laws at that time were all against them and in favor
of the slave owner, and they accomplished nothing.
"I shall never forget... the deliberate and effective manner in which
that Kentuckian brought forth his pistol. That was a memorable day for
me. I had never before seen a captured slave, neither had I ever before
seen a pistol drawn on a man in earnest, and it produced a very lasting
impression on my mind."

Significant legislation followed the Crosswhite case. While no direct connection has been established, the Crosswhite affair, as one of many frustrated attempts to recapture slaves in the North, (112) undoubtedly contributed to the U.S. Congress' enactment of the more stringent Fugitive Slave Act of September 18, 1850. (113) As an indignant response to the federal law, Michigan adopted its version of a Personal Liberty Law in 1855. (114)

Many of the persons associated with the Crosswhite case became famous in Michigan and U.S. history. Zachariah Chandler, who paid the Giltner defendants' judgment, was elected Republican U.S. Senator in 1857 and was a powerful influence in Michigan politics." (5) Gorham became an assistant U.S. Secretary of the Interior in President Ulysses S. Grant's Administration and was also the U.S. Minister to the Hague. Justice McLean became an Associate Justice of the U.S. Supreme Court from Ohio and in 1857 joined with Justice Benjamin R. Curtis in dissenting from the notoriously proslavery Dred Scott v. Sanford decision. (116)

Blacks on the whole fared less well. The enactment of the Personal Liberty Law in 1855 showed the state's resolve to provide a modicum of due process in resisting the return of black fugitive slaves to slave states. On the question of granting civil rights to free blacks in Michigan, a contrary resolve remained. In 1850, a ballot to approve the new state constitution contained a constitutional amendment that would have granted civil rights to Michigan's free blacks. While the constitution itself was readily approved, the amendment lost by a three-to-one margin. (117) Although a majority of Michigan's white citizens manifested support for the abolitionist movement, they overwhelmingly refused Michigan's black residents the franchise. It would be another twenty years, not until 1870, after ratification of the Fifteenth Amendment to the federal Constitution before a black voted in Michigan.

(1.) MICH. CONST, of 1835, art. XI, [section]1.

(2.) V. JACQUE VOEGELI, FREE BUT NOT EQUAL: THE MIDWEST AND THE NEGRO DURING THE CIVIL WAR 1 (1967). It has been suggested that whites in Michigan were less harsh in their anti-Negro sentiments than whites in other Midwest states- due to Michigan's smaller black and Southern-born white populations. See, e.g., D. Emmer, The Civil and Political Status of the Negro in Michigan and the Northwest Before 1870 9, 16, 22 (1935).

(3) VOEGELI, supra note 2. at 1 (quoting George W. Julian, an Indiana abolitionist, in Woodburn, Party Politics in Indiana During the Civil War, I AM. HIST. A. REP. FOR THE YEAR 1902, 226 (1903)).

(4.) For discussions of Midwesterners' views on the use of blacks as soldiers during the Civil War, see VOEGELI supra note 2, at 98-112.

(5.) Petition campaigns for black suffrage were mounted in Michigan in 1844, 1846, 1847, 1855 and 1859. The most successful was in 1846. DAVID M. KATZMAN, BEFORE THE GHETTO: BLACK DETROIT IN THE NINETEENTH CENTURY 34 (1973).

(6.) See VOEGELI supra note 2, at 2.

(7.) MICH. REV. STAT, of 1846, Ch. 83, [section]6 (repealed 2001) (emphasis added).

(8.) Id. See also P. MURRAY, STATES' LAWS ON RACE AND COLOR 230 (1950)("A11 marriages heretofore contracted between white persons and those wholly or in part of African descent are hereby declared valid and effectual in law for all purposes; and the issues of such marriages shall be deemed and taken as legitimate as to such issue and as to both of the parents...").

(9.) See VOEGELI, supra note 2, at 1-2, for general discussions of segregation laws in the mid-western states and Michigan.

(10.) MICH. CONST. of 1835 art. II, [section] 1. (The word "white" was removed in the 1850 Michigan Constitution).

(11.) KATZMAN, supra note 5, at 6.

(12.) Id. Katzman notes that the restrictive territorial laws were occasionally lifted when of benefit to the territorial government, e.g., when a company of black soldiers was commissioned to defend in the Anglo-American conflict prior to the war of 1812. Id.


(14.) KATZMAN, supra note 5, at 6.

(15.) Id.

(16.) Id.

(17.) The Act also provided some protections and legal processes for detaining alleged fugitive slaves as well as a process for determining claimant's ownership rights before the fugitives could be returned to slavery. See generally KATZMAN, supra note 5, at 6-7; A. KOOKER, THE ANTISLAVERY MOVEMENT IN MICHIGAN: A STUDY IN HUMANITARIANISM ON AN AMERICAN FRONTIER 55-61 (1941). This dissertation is a well-documented, major exposition of Michigan's anti-slavery movement and its main participants.

(18.) KATZMAN, supra note 5, at 7.

(19.) Id.

(20.) Id.

(21.) Kooker reports an instance in October 1837 when the act was enforced, against a black man, who was banished from the town of Scio in Washtenaw County for failing to post the required $500 bond. KOOKER, supra note 17, at 263.

(22.) For discussions on black schools in Detroit and efforts within the black community to achieve equal education, see KATZMAN, supra note 5, at 22-25.

(23.) See KATZMAN, supra note 5, at 25-27.

(24.) For detailed discussions on employment opportunities for Detroit blacks, see KATZMAN, supra note 5, at 104-134.

(25.) The Second Baptist Church was organized in 1836. It became an important "station" on the Underground Railroad network, and in 1990 was placed on the National Register of Historical Places and the State Register of Historic Sites. Det. Free Press, April 4, 1990, at 4B.

(26.) KATZMAN, supra note 5, at 19.

(27.) See infra at notes 55-76 and accompanying text for discussion of the "Blackburn" riot.


(29.) VOEGELI, supra note 2, at 5. Franklin noted that Northern whites were not unduly hostile to Negroes, already residents, "but they did not welcome the crude, rough type which came from the South." JOHN HOPE FRANKLIN, FROM SLAVERY TO FREEDOM: A HISTORY OF NEGRO AMERICANS 234 (3d ed. 1969).

(30.) VOEGELI, supra note 2, at 7. For discussion of the broad differences of opinion on slavery that existed between the Democratic and Republican political parties in the Midwest, see id. at 3-9. Democrats were generally Negrophobic and had contemptuous opinions of blacks--many "who despised slavery viewed free Negroes as an even greater evil." Id. at 3. Republicans, while abolitionists, were similar to Democrats in viewing blacks as inferior human beings. Id.

(31.) Det. Free Press, May 9, 1864 and March 8, 1865.

(32.) NORMAN MCRAE, NEGROES IN MICHIGAN DURING THE CIVIL WAR 24-25 (Mich. Civil War Centennial Observance Commission 1966) (citing JUSTIN E. WALSH, RADICALLY AND THOROUGHLY DEMOCRATIC: WILBUR F. STOREY AND THE DETROIT FREE PRESS, 1853-1861, MICH. HIST. XLVII at 346 (1943)). See HARRIETTE M. DILLA, THE POLITICS OF MICHIGAN 1865-1878 257-58 (1912), for listings of leading Michigan newspapers and their political party affiliations as well as those described as "independents."

(33.) See VOEGELI, supra note 2, at 8-9.

(34.) The Colored People of Detroit: Their Trials, Persecutions and Escapes. Containing Sketches of the Riots of 1833, 1839, 1850, and 1863, with a Full Account of the Loss of Life and Burning of Negro Tenements in the Latter Year, and the Conviction, Imprisonment and Release of William Faulkner: Together with Some Information Concerning the Concoction of the John Brown Raid (1870)(reprinted as pamphlet compilation of articles from the Detroit Daily Post of Jan. 1 and Feb. 7, 1870). See infra at note 55 and accompanying text for discussions of the 1833 riots.

(35.) See KOOKER, supra note 17, at 143. See also GEORGE B. CATLIN, THE STORY OF DETROIT 322-28 (1926); SILAS FARMER, HISTORY OF DETROIT AND WAYNE COUNTY AND EARLY MICHIGAN 346-48; (3rd ed. 1890); Dillon, Elizabeth Chandler and the Spread of Antislavery Sentiment to Michigan, 39 MICH. HIST. 481 (1955) which focuses on the influence of the abolitionist Quakers from Lenawee County during the 1830s.

(36.) KOOKER, supra note 17. at 127. Kooker reports that 17 anti-slavery societies existed in Michigan, seven before 1837. Those societies for which membership records were available averaged 57 members. For general discussions of the Underground Railroad, see WILBUR H. SIEBERT, THE UNDERGROUND RAILROAD: FROM SLAVERY TO FREEDOM (The MacMillan Company. 1898); CHARLES L. BLOCKSON, THE UNDERGROUND RAILROAD (Berkley Ed., 1989).

(37.) See SIEBERT, supra note 36, at 147-49.

(38.) Prominent among the black Detroiters who aided the fugitive slaves escaping into Canada were Jean and George de Baptise, Joseph Ferguson, John G. Reynolds, William Webb. William C. Moore, and William Lambert. BLOCKSON, supra note 36, at 173. See also Gerald Sorin. Historical Theory of Political Radicalism: Michigan Abolitionist Leaders as a Test Case (1964).

(39.) BLOCKSON, supra note 36, at 171-72.

(40.) For other Underground Railroad routes through Michigan into Canada, see BLOCKSON, supra note 36, at 175-76.

(41.) BLOCKSON, supra note 36, at 172. Other estimates are higher. For example. McAdoo estimated that by 1860, as many as 75.000 blacks (free and fugitive) passed through Michigan seeking refuge in Canada. "Two-thirds of these arrived between 1840 and 1860...." William McAdoo, The Settler State: Immigration Policy and the Rise of Institutional Racism in Nineteenth Century Michigan 266 (1983).

(42.) Act of Feb. 12, 1793, 1 STAT. AT L. 302.

(43.) See Marilyn H. Mitchell, From Slavery to Shelley - Michigan's Ambivalent Response to Civil Rights. 26 WAYNE L. REV. 1. 3. n.14 (1979) and additional references therein.

(44.) U.S. CONST, art. IV. [section] 2, cl. 2.

(45.) Mitchell, supra note 43, at 5. See infra note 113 and references therein for discussions of the Fugitive Slave Act of 1850.

(46.) Prigg v. Com. of Pennsylvania, 41 U.S. 539 (1842). See ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS 166-74 (Yale University Press, 1975), for discussion of Prigg and the anti-slavery responses to it. For discussion of federalism and the power of Congress to control private conduct that affects civil rights that the Prigg decision invoked, see ARCHIBALD COX, MARK DEWOLF HOWE & J. R. WIGGINS. CIVIL RIGHTS, THE CONSTITUTION, AND THE COURTS 31-56 (Harvard University Press, 1967).

(47.) Prigg, 41 U.S. at 539.

(48.) Id. at 540-41.

(49.) Id. at 541.

(50.) Id. at 561.

(51.) Mitchell, supra note 43, at 6, citing Acts Nos. 162, 163 of Feb. 13. 1855, ACTS OF LEGIS. 413-16 (1855). With the exception of Illinois and the far western states that entered the Union during the 1850s. all the states north of the Mason-Dixon line enacted some form of a personal liberty law. For discussions of these laws, with special treatment of the representative laws in Pennsylvania, New York, Massachusetts, Ohio and Wisconsin, see THOMAS D. MORRIS, FREE MEN ALL: THE PERSONAL LIBERTY LAWS OF THE NORTH 1780-1861 130-47 (John Hopkins Univ. Press 1974).

(52.) See FARMER, supra note 30, at 347 for discussion. Earlier, in 1838, Michigan enacted a statute against the unlawful taking (kidnapping) or selling:

... the service or labor of any negro, mulatto, or other person of color, who shall have been unlawfully seized, taken, inveigled or kidnapped from this state, to any other state, place or country, shall be punished by imprisonment in the state prison not more than ten years, or by fine not exceeding one thousand dollars, or both, at the discretion of the court. REV. STAT. MICH. Adjourned session of 1837, regular session of 1838, ch. 3, [section]10, 623-24.

(53.) See KATZMAN, supra note 5, at 11.

(54.) Id.

(55.) The account of the "Blackburn" riot that follows is drawn primarily from Norman McRae, Crossing the Detroit River to Find Freedom, 67 MICH. HIST. 35, 37-39 (1983), and Kooker's and Katzman's well-documented research. See KOOKER, supra note 13, at 63-76 and references therein, and KATZMAN, supra note 5, at 8-11, particularly the references cited at 8, n.9. For additional accounts of the incident, see Farmer, supra note 35, at 345-47 and CATLIN, supra note 35, at 321-22. An interesting report of the Blackburn affair appeared in the Detroit Courier, June 19, 1833, at 2, col. 3. The Courier was a reform weekly that favored gradual emancipation.

(56.) KATZMAN, supra note 5, at 9.

(57.) Detroit Courier, June 19, 1833, at 2, col. 3.

(58.) KOOKER, supra note 17, at 64, and references therein.

(59.) KATZMAN, supra note 5, at 9.

(60.) See id.

(61.) Id.

(62.) Id.

(63.) Id. at 10.

(64.) Id.

(65.) Id. at 9.

(66.) Id. at 10.

(67.) Id.

(68.) Id.

(69.) Id. at 9.

(70.) The sheriff was near death. His skull was fractured "by a blow from grape shot tied in a silk handkerchief;" he had teeth knocked out and was badly bruised. Kooker reports he died a year later from his wounds. KOOKER, supra note 17, at 69 n.45.

(71.) Id. at 69-70.

(72.) Id. at 71. Fort Gratiot was located at what is now the city of Port Huron.

(73.) Id. at 71 (footnotes omitted). The Blackburns, after unsuccessful attempts to extradite them back to Michigan, resided in Amherstburg, Ontario. "Later they moved to Toronto and became prosperous citizens of that city." Id. at 76; KATZMAN, supra note 5, at 10-11.

(74.) KATZMAN, supra note 5, at 11 and references therein. Katzman reports that there is no evidence that blacks in Detroit ever complied with the proclamation.

(75.) Id.

(76.) Id. at 11; see BENJAMIN C. WILSON, RURAL BLACK HERITAGE BETWEEN Chicago and DETROIT, 1850-1929: A PHOTOGRAPH ALBUM AND RANDOM THOUGHTS 12-41 (1985), for discussion of black settlements in the southwestern counties of Allegan, Calhoun, Cass, Kalamazoo and Van Buren. The strong Quaker influence spurred blacks to settle in their friendlier and safer rural locals.

(77.) See KATZMAN, supra note 5, at 13-31 for discussion of the growth of Detroit's black community from 1840-1860.

(78.) See John H. Yzenbaard, The Crosswhite Case, 53 MICH. HIST. 131 (1969); John C. Sherwood. One Flame in the Inferno: The Legend of Marshall's "Crosswhite Affair" 73 MICH. HIST. 40 (March/April 1989) and respective references therein. Both articles discuss the undocumented myths and hearsay that surround the case and offer evidence discrediting claims that the incident was more than an important Michigan fugitive-recovery case, not unlike many other throughout the North.

(79.) Sherwood, supra note 78, at 47.

(80.) Act of Feb. 12, 1793, 1 STAT. AT L. 302.

(81.) Id. at 41. Yzenbaard places the Marshall population in the late 1840s at about 700. including two or three score Negroes. Yzenbaard, supra note 78, at 132.

(82.) Sherwood, supra note 78, at 41.

(83.) See Yzenbaard, supra note 78, at 131, for personal data on the Crosswhite family.

(84.) Id. at 132.

(85.) Id. at 133.

(86.) Giltner v Gorham, 10 Fed. Cas. 424 (CCD. Mich. 1848).

(87.) The facts that follow were taken from the case report as well as the summaries in Yzenbaard and Sherwood.

(88.) Sherwood, supra note 78, at 41.

(89.) Giltner, supra note 86, at 425.

(90.) Id. at 426.

(91.) Id.

(92.) Id. at 428.

(93.) Id.

(94.) Id.

(95.) Id.

(96.) Id. at 427.

(97.) Id. at 429.

(98.) Sherwood, supra note 78, at 43 and reference therein.

(99.) Id. For accounts of additional activities and foment over the affair, see also Yzenbaard, supra note 78, at 137-38, 140-42.

(100.) Apparently, Gorham, Combstock and Herd were white. The four other defendants are identified in the opinion as "colored" men: Planter Morse; Charles Berger; William Parker and James Smith. Giltner, supra note 86, at 426-27.

(101.) Abner Pratt and John Norvell represented the plaintiffs. The defendants were represented by Helmer H. Emmon, assisted by Hovey Clark, Theodore Romeyn, James F. Joy and Henry Wells. Yzenbaard, supra note 78, at 138.

(102.) Giltner, supra note 86, at 431.

(103.) Id. at 432.

(104.) COVER, supra note 46, at 235 (In his fugitive slave decisions, "McLean vigorously asserted the compulsion to ignore morality from any source other than the purely legal ones...").

(105.) Giltner, supra note 86, at 432.

(106.) Sherwood, supra note 55, at 44. During the first trial, Justice McLean informed the jury that no claim had been made by the plaintiff to the Crosswhites' fifth child who had been born in Michigan and was. therefore, a free person. See Giltner, supra note 86, at 439.

(107.) Yzenbaard, supra note 78. at 140.

(108.) See Edward J. Littlejohn, The Efficacy of Law in Promoting Social Change: For Lawyers, DET. C.L. REV. 23, 37-45 (1976).


(110.) See, e.g., DET. COURIER, June 19, 1833, at 2, col. 3; A Colored Jury, DET. POST, April 4. 1870. at 4, col. 6; Underground Railroad, Reminiscences of the Days of Slavery. DET. POST, May 15, 1870. (Supp.) at 2, col. 7; Underground Railroad, Continuation of Its Secret History, DET. POST, May 22, 1870, (Supp.) at 1, col. 1; and DET. DAILY POST, Aug. 1, 1972, at 4. col. 3.

(111.) Incident of Old Detroit in Slavery Days, DET. J., Dec. 23, 1899. at 9, col. 6.

(112.) See Benjamin C. Wilson, Kentucky Kidnappers, Fugitives, and Abolitionists in Antebellum Cass County Michigan, 60 MICH. HIST. 339 (1976), for additional Michigan (Cass County) cases involving aborted attempts to recapture fugitive slaves.

(113.) See Act of Sept. 18, 1850, 9 Stat. 462, 1793 Fugitive Slave Act. (The essence of the new act was the creation of jurisdiction in appointed federal commissioners to hear fugitive slave cases and to issue certificates of removal. Certificates could be issued ex parte based on evidence from a slaveholder or a representative. The alleged fugitive slave was excluded by the act from testifying in the removal proceedings. If the commissioner issued a certificate, he received a ten-dollar fee; if the certificate was denied, he was paid a five-dollar fee.) COVER, supra note 46, at 175. See also id. at 175-91; MORRIS, supra note 51, at 130-47; and Yzenbaard, supra note 78, at 141-42 for discussion of the legislation's history and its progress through the U.S. Congress as a compromise to the slave-holding states and attacks on it by antislavery forces.

(114.) ActsNos. 162, 163 ofFeb. 13, 1855, ACTS OF LEGIS. 413-16 (1855). See MORRIS, supra note 51 and accompanying text.

(115.) See DILLA, supra note 32, at 21-22 and 26-38.

(116.) Dred Scott v. Sanford, 60 U.S. 393 (1857). See Sherwood, supra note 78. at 47. The dissents amounted to over 45% of the decision and took over five hours to read from the bench. For a discussion of the dissenting opinions see D. Fehrenbacher, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLITICS (1978).

(117.) Yzenbaard, supra note 78, at 143.
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Title Annotation:Chapter 3; Black Before the Bar: A History of Slavery, Race Laws, and Cases in Detroit and Michigan
Author:Littlejohn, Edward J.
Publication:Journal of Law in Society
Date:Mar 22, 2018

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