The Ohio Supreme Court and Slavery in the 1800s

By Judge James L. Kimbler

Since its adoption into the Union, Ohio had always been a “free state”. Indeed, the territory that became Ohio, and four other states, had been designated as “free” of slavery in the Northwest Ordinance of 1787. The Ohio Constitution of 1802, which became the basis of Ohio’s government when it was admitted into the Union in 1803, asserted in its Bill of Rights that “…all men are born equally free and independent, and have certain natural, inherent and unalienable rights…”.

All of this meant that slavery was not recognized in Ohio and that there was not involuntary servitude unless it was a punishment for a crime. The fact that Ohio was a non-slave state did not mean, however, that Ohio courts didn’t struggle with legal issues raised by slavery.

Unlike the states found in New England, Ohio was a state that bordered on a “slave” state, Kentucky. One of Ohio’s biggest cities, Cincinnati, sat on the Ohio River across from Kentucky. This proximity to a slave state meant that Ohio courts had to deal with legal issues raised by slavery.

The legal issues raised by slavery included: whether a person could be convicted under a state statute that made it a crime to aid a runaway slave; whether a contract could be enforced that dealt with the selling of slaves; and, whether a writ of habeas corpus could issue against a sheriff who was holding a prisoner charged with violating the Fugitive Slave Act of 1850.

A review of these decisions reveals the limitations of a legal system that on the one hand didn’t constitutionally condone slavery; but, on the other hand, was called upon to decide questions that arose because slavery was permitted in other states. The reasoning used in these decisions reveals a legal system that was conflicted about slavery.

In some cases the Ohio Supreme Court thought itself free to apply Ohio law. When it could do so, it would apply the law in a way that undermined the institution of slavery. In other decisions, however, it felt itself bound by the United States Constitution. In those cases, unlike the decisions involving just Ohio law, the Court found itself reinforcing the institution of slavery.

InTom v. Dailey (1831), 4 Ohio 368. Tom was a young man who had been born in Kentucky. His mother at one point had been a slave, while his uncle, his mother’s brother, had been free. At one point his uncle had purchased his mother at an auction with the intention of emancipating her, or at least that is what he said. At the time of her emancipation she was pregnant with Tom.

Following Tom’s birth, however, his uncle maintained that the Tom had been born a slave and made plans to sell him to another, a man named Desha. When Tom’s mother heard of this intended sale, she sent Tom to Cincinnati to live with a man named Witt. It was Witt who brought the lawsuit seeking a declaration that Tom was free.
The Ohio Supreme Court held for Tom.

In the opinion syllabus it wrote the following:

“Where a slave is purchased under a promise to emancipate, such promise may be specifically executed in equity, against the purchaser, and against subsequent purchasers, without notice.”

In the body of the opinion, the Court appears outraged by the fact that Tom’s uncle had attempted to sell his nephew after telling his mother that she was freed. The Court cited to a Kentucky case for the principle that an oral agreement to emancipate a slave was sufficient. It then wrote the following:

“We surely may be permitted to apply these doctrines to a case where a brother is seeking to reduce his sister and her offspring to slavery, in direct violation of his repeated and most solemn engagements.” (Emphasis appears in the text).

In Birney v. State (1837), 8 Ohio 230, the Ohio Supreme Court reviewed the conviction of a defendant who had been convicted of violating a state law that made it a crime to harbor a runaway slave. The statute in effect at the time of the decision read, in part, as follows:

"...that if any person shall harbor or secrete any black or mulatto person, the property of another, the person so offending shall, on conviction thereof, be fined any sum not less than ten nor more than fifty dollars."

Birney argued that the statute was unenforceable because it did not require proof of scienter, that is, that the statute did not require the State to prove that he knew the person he was harboring was a slave. The Ohio Supreme Court agreed with him and reversed his conviction.

Although the Court reversed his conviction, it avoided having to address one of his arguments. Birney had argued that once a slave came into a free state, he or she became emancipated by operation of law. The Court specifically noted that it was not addressing any issue raised by Birney other than the fact that the indictment was defective.

By 1856 the Ohio Supreme Court was ready to address the issue of whether a slave who came into Ohio became emancipated by operation of law, at least in cases where the slave’s owner had permitted or required such entry.

In Anderson v. Poindexter (1856), 6 Ohio St. 622, the Ohio Supreme Court held that the holder of promissory notes that were given to purchase the freedom of a slave whose owner had allowed him to come into Ohio was not entitled to recover on the notes. In reaching this decision, the Ohio Supreme Court wrote the following in the opinion syllabus:

“Neither Ohio nor Kentucky can demand an abrogation of the Constitution and municipal laws of the other, as a matter of comity; and if a person, claimed as a slave in Kentucky, comes into Ohio by the direction or consent of his owner, to perform for him menial services here, even temporarily, the Constitution and laws of Ohio operate on the condition of such person, and effect his immediate emancipation.

There is no law, either in Kentucky or Ohio, by which a man, once free, can afterward be enslaved, except for the violation of some municipal law.”

In cases, however, where the Ohio Supreme Court was dealing with issues of Federal law, it found itself bound to reach a decision that reinforced the institution of slavery. This is shown by two habeas corpus cases where defendants who had been convicted under the Fugitive Slave Law of 1850 sought a hearing before an Ohio state court for a writ of habeas corpus.

This was shown in a case involving a man named Bushnell who was convicted of helping slaves escape. In the first case, Ex Parte Bushnell (1858), 8 Ohio St. 599, the Ohio Supreme Court held that Bushnell could not obtain a writ of habeas corpus because the Federal District Court had acquired jurisdiction. The Court put it this way in the opinion syllabus:

“Where a court of general jurisdiction, and legally competent to determine its own jurisdiction, has acquired jurisdiction, de facto, over person or subject matter, it is a rule, founded upon comity between judicial tribunals, that no other court will interfere with, or seek to arrest the action of the court in which, and while, the case is still pending and undetermined.”

Bushnell raised the argument that the Fugitive Slave Act was unconstitutional. The Ohio Supreme Court didn’t reach that issue since the case was still pending in the United States District Court when Bushnell applied for the writ.

After he was convicted, Bushnell again applied for a writ of habeas corpus. This time the Ohio Supreme Court considered the issue of the constitutionality of the Fugitive Slave Act. In the first paragraph of the opinion syllabus, the Court wrote the following:

“1. The provisions of Art. 4, Sec. 2, of the Constitution of the United States, that "no person held to service or labor 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 labor, but shall be delivered up on claim of the party to whom such service or labor may be due," guaranties to the owner of an escaped slave the right of reclamation.” Ex Parte Bushnell (1859), 9 Ohio St. 77.

Thus, unlike the previous cases where the Ohio Supreme Court was applying its own law, in the Bushnell case the Ohio Supreme Court felt itself bound by both the United States Constitution and Federal law to refuse the writ of habeas corpus.

Like the United States itself, the Ohio Supreme Court on the cusp of the Civil War was conflicted about the legal status of slavery. Where it could use Ohio law to rule against the rights of slave owners, it would do so, but it felt itself bound by the United States Constitution to support the rights of slave owners under the Fugitive Slave Act. For the Ohio Supreme Court, as for the nation as a whole, the only way to resolve this conflict was by war and the subsequent adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution.