Written by Dianne Post   

The Amazing Saga of Joshua Glover, the Fugitive Slave Act, the Republican Party and the Civil War

Three men, William Alby, Nelson Turner and Joshua Glover, played cards and shared a bottle of whiskey in a dark room on a chilly Friday evening in March 1854 when suddenly the door burst open and several men rushed in. William Alby flew out the window and ran to town to tell the tale. Nelson Turner, who had turned in Glover, rushed out the door and disappeared. Joshua Glover, a forty-five-year-old escaped slave who had been the foreman of a farm in St. Louis, Missouri and, according to the farmer, of great value, fought off three men but was felled with a blow to the head by a cudgel. Glover had escaped to Wisconsin in 1852, worked in a sawmill and lived near Racine. Under the Fugitive Slave Law, a commissioner of the Federal District Court in Milwaukee, Andrew Miller, had ordered him to be seized. Glover was overwhelmed, beaten, cuffed and thrown into the back of a wagon.

Alby ensured that word spread quickly of Glover’s capture and though the slave-catchers took two wagons on obscure routes to avoid the abolitionists, opposition quickly mounted. Sherman Booth, a leader of the abolitionists and editor of a newspaper in Milwaukee, sounded the alarm. After three to five thousand people gathered at the county courthouse and jail for most of Saturday, a hundred citizens led by the sheriff of Racine, Timothy Morris, arrived in Milwaukee by steamship with a warrant for the arrest of the U.S. Marshal and the slave catcher. He was ignored. So on March 11, abolitionists, including one Rycroft, grabbed a large beam from a nearby St. Johns Cathedral construction site and broke down the jail door.

They took Glover by buggy to Prairieville (now known as Waukesha) where they hid him. Chauncey C. Olin, a driver on the Underground Railroad, then took him through Rochester back to Racine and left him with Rev. M.P. Kinney, another station on the railway. From there, Glover traveled to Spring Prairie near Burlington for several weeks until transport was found, and then they returned him to Racine and put him on the ship to Canada and freedom.

The sheriff of Racine County eventually arrested Bennami Garland, the purported “owner” of Glover, but he was released on a writ of habeas corpus the very day Glover sailed to Canada. But the saga continued for Sherman Booth and John Rycroft, and the legal maneuvers that followed made history and helped push the country into the Civil War.

Federal authorities charged Booth with aiding and abetting the escape of a slave in violation of federal law i.e. The Fugitive Slave Act. Booth refused to appear in court and was arrested. His lawyers waited for the right moment to file the writ of habeas corpus at the Wisconsin Supreme Court so they would be assigned to Judge Smith. Two weeks later, Smith granted the habeas corpus on the ground that Booth was wrongfully held and released him.

Booth argued that the Fugitive Slave Act was unconstitutional and thus void. Secondly, the Act referred to “persons held to service or labor.” The warrant listed Glover as “property.” No prohibition existed against aiding and abetting the escape of “property.” Thus Booth used the very injustice of slavery to disable it.

The case set up a conflict between federal and state power. A federal commissioner ordered Booth arrested but a state judge released him. The federal commissioner enforced the federal law that said some men could be held as slaves, but the state judge enforced the state constitution that made all men free. The federal law required that free states may not discharge or eliminate the “duty” owed by the “slave” to the owner, but they must “deliver up” the fugitive to the federal marshal. But federal commissioners had an inherent conflict as they received a higher fee for returning a fugitive than for releasing a fugitive. Furthermore, federal officers could not invade a state and seize persons found within. The federal government legislated the Fugitive Slave Act, but they could not enforce it; that was up to the states. Wisconsin chose not to.

State law demanded that a person in Wisconsin was free. He owed no duty of service or labor. So when someone sought to capture and imprison any man in Wisconsin, he sought to capture and imprison a free man. Obviously, that could not be allowed. The federal government had no right to make state laws, so they could not insist that Wisconsin laws comply with those in Missouri that claimed Glover owed such a duty. The Wisconsin judge said that though states could not pass laws discharging fugitive slaves from service, a judicial determination must be made whether the claim of the “owner” was lawful. If Glover disputed the claim of labor or service due, which he did, then he was entitled to a suit in common law and a trial by jury. If the slaveholder claimed his property was being deprived, then let him go into a court of law and prove it. Since the Fugitive Slave Act did not provide for such a determination, the Wisconsin judge ruled it unconstitutional. That is the one and only ruling of unconstitutionality for that dastardly statute.

After Justice Smith released Booth, the federal marshal appealed to the Wisconsin Supreme Court that on July 19, 1854, upheld the Smith result. Booth remained free. Judge Smith, who wrote the first opinion freeing Booth, emphasized that the court must always keep in mind fundamental principles. A society must never give up seeking justice though it be ever elusive. We cannot adhere to authority just because it is authority. As citizens in a democracy, we each have our own oaths and our own conscience, and we must be true to them.

In contrast, the U.S. Supreme Court said, "the object of this clause (Fugitive Slave Act) was, to secure to the citizens of the slaveholding states the complete right and title of ownership in their slaves, as property, in every state of the Union into which they might escape from servitude." Judge Smith concluded that could not have been the object of the Fugitive Slave Act, because that would have legalized slavery in every state in the Union. That was never the intent. The only reason the slavery provisions were in the Constitution and in the Fugitive Slave Act was to persuade Southerners to agree to the Constitution and to limit slavery to the South. Wisconsin was not required to recognize a human being as property because in Wisconsin, he was a man.

The U.S. Supreme Court claimed that the Fugitive Slave Act gave the owner unqualified right regardless of state law – which means the federal government was telling the states what their laws must be, an act they have no right to do. If that were so, then all slave codes were grafted onto free states i.e. the owner can come to Wisconsin, find his slave and sell him in Wisconsin, contrary to Wisconsin laws. This he may not do.

The U.S. Supreme Court suggested that all laws regarding return of runaway slaves should be uniform throughout the land. Judge Smith asked why. If a horse runs away or is stolen into Illinois, the owner faced one set of laws, those of Illinois, to retrieve him. If the horse runs away or is stolen into Iowa, the owner faces another set of laws. Why should it be different for slaves? If they are but mere property, then why should they be treated differently than horses? If they are not property but people, then they have a right to due process.

Three months later, in October 1854 the federal marshal appealed the Wisconsin decision freeing Booth and holding the Fugitive Slave Act unconstitutional to the U.S. Supreme Court. In the meantime, the federal government proceeded with an indictment of Booth, and on July 11, 1854, federal authorities imprisoned Booth on a warrant from the U.S. District Court in Milwaukee. Booth again applied for a writ of habeas corpus from the Wisconsin State Supreme Court based on the argument that the Fugitive Slave Act was unconstitutional. This time they denied the writ because he was then in a preliminary procedure in a different jurisdiction – i.e. the federal district court – and he had the opportunity to challenge the warrant there.

In January 1855, a jury found Booth and his co-defendant Rycroft guilty of aiding and abetting the escape of Joshua Glover. The judge sentenced Booth to one-month jail time, one thousand dollar fine and costs of prosecution. The judge sentenced Rycroft to ten days and a fine of two hundred dollars. Both men refused to pay and remained in federal custody. In March 1855, Booth and Rycroft were found not guilty in their state trials for riot.

Booth and Rycroft filed again with the state Supreme Court for a writ of habeas corpus. The State Supreme Court granted it and released them for a second time. Even though the federal government held the men, the court said that the Supreme Court of a state has the power to release a citizen of that state from illegal imprisonment no matter who it was that did the illegal confining. No court, federal or state, can legally hold a person under an unconstitutional law, to wit, the Fugitive Slave Act. The actions of any court are always open to question to ensure the freedom and liberty of citizens. If the court has the right to issue a habeas corpus, then it has the right to look into the legality of the confinement – that, after all, is the definition of habeas corpus.

Four months later, the U.S. Attorney General filed another writ of error with the U.S. Supreme Court because of this second release of Booth and Rycroft. The Wisconsin Supreme Court refused to respond, so the U.S. Supreme Court obtained the transcripts of the habeas corpus hearing and considered that as the Wisconsin answer. In a decision written by the infamous pro-slavery Chief Justice Taney who would write the Dred Scott decision three years later, Taney held the Wisconsin decisions to be in error and ordered them reversed. The U.S. Supreme Court held that the state court did not have the power to order the release of a federal prisoner based on the argument that a federal law was unconstitutional and anyhow, the Fugitive Slave Law was constitutional.

Ironically, in another Dred Scott connection, Garland who claimed to own Glover, had sued John A. Sanford who claimed to own Dred Scott, for services Garland claimed he delivered to Scott and other of Sanford’s slaves. The Glover case also has a connection to another famous slavery case. When Booth was a student at Yale, he was selected to teach English to the Amisted prisoners. The irony continued when the Abelman v. Booth case was cited more than a century later in the Cooper v. Aaron case about the Little Rock Nine to say that the federal court has jurisdiction to order conformance with the desegregation order of Brown v. Board of Education. Once again, the ideology of slavery was turned on its head. Booth had opposed slavery and was told he was a criminal for that. But more than a hundred years later that case was used to justify federal intervention to enforce desegregation.

When authorities sought to file this new Supreme Court order with the clerk of the Wisconsin court, the court clerk refused to enter it. The federal authorities then filed an action in the Wisconsin Supreme Court to force them to recognize the U.S. Supreme Court order. By this time, Justice Paine, who had represented Booth as a lawyer, was one of the justices of the Wisconsin Supreme Court so he recused himself. Chief Justice Dixon said he believed the Supreme Court does have appellate jurisdiction, and the writ should be entered. Justice Cole said the opposite. Since Cole did not file an opinion, the opinion of Dixon became the final decision ordering that the U.S. Supreme Court order be filed.

Garland brought suit against Booth for the value of Glover and obtained judgment in the United States District court for one thousand dollars, representing the value of a Negro slave as fixed by the Act of Congress passed in 1850. Garland had filed an affidavit that Glover was worth $1,800 and sued Booth for $4,000. However, the reward for Glover was only $200 and Garland had claimed that Glover was a dissipated person. Booth refused to pay so the sheriff executed on Booth’s printing press and other property to collect the money. Booth eventually retrieved some of the property but the seven years of litigation bankrupted him.

On July 12, 1860, Booth sued Andrew Miller, the federal commissioner who had signed the warrant for his arrest. Booth argued that Miller had no jurisdiction to take Glover and that the Fugitive Slave Act was unconstitutional, that Miller caused Booth to be arrested, dragged about, and imprisoned with no probable cause, that he issued a writ to arrest Booth, and that he jailed him. James Payne, one of Booth’s attorneys in the earlier cases filed the suit. The judge of course denied all and argued privilege as a sitting judge. The trial was September 30, 1860 and an argument at the appeals court was scheduled for December 3, 1860. However, on December 1,1860, Booth discharged his attorneys and asked for the case to be discontinued, which it was on December 14. Booth spent more than a year in jail before President James Buchanan pardoned him in March 1861 two days before President Abraham Lincoln was inaugurated.

Some time after this event, one of the men who helped capture Glover ordered a round for all the customers in a bar in Milwaukee. Each one refused. One man said, “No one here will drink with a nigger catcher.” Months later the marshal from St. Louis who had also helped in the capture sat in a barber chair in Madison. The barber was a Black man, William Noland, which apparently the marshal never realized. Noland said, “We do not shave kidnappers or their underlings.” Noland went on to serve many years as a government official.

The story of what happened to Glover after his escape is thoroughly researched in the Jackson and McDonald book, Finding Freedom: The Untold Story of Joshua Glover, Runaway Slave. When he arrived in Canada, he got a job for the Montgomery family who owned an inn, farms, sawmill and much else. He worked for them through three generations. Though he did farm and millwork, he appeared to have been an accomplished carpenter as in both the U.S. and Canada he often sold his hand made items for extra money. At first, he rented a one-story home with a cook stove and 1.5 acres. Between 1859 and 1861, he married Ann, an Irish domestic, who died in 1872. In 1874, he moved to a cabin with 4.5 acres and married Mary Ann, another Irish domestic, who died in 1881. No children were recorded from either marriage.

The census of 1871 lists him as 60 years-of-age, born in the U.S. and married. He was a Baptist and lived in Etobicoke, which is in the district of York West in the Province of Ontario. In the census of 1881, he was listed as a “widower” and living with a man called George Mason, who, guessing by his name, might also have been an escaped slave. In 1884, Joshua was arrested for allegedly stabbing a man at a brothel. His employer provided an attorney and three white, highly-placed citizens testified for him. He was sentenced to only three months.

For four years after his release, the bookkeeping entries of Montgomery don’t show any payments for work to Glover but do show that the family helped him with food, clothes and money. In 1888, he went to the York County Industrial Home where he died June 4, 1888 at the age of 81. The cause of death was not given. “The people were sent to the new institution (Industrial Home) for reasons of being old and blind, deaf and dumb, destitute, paralyzed, crippled, old, weak minded, sick and rheumatic.” The Montgomery family was notified of his death and went to get his body for a proper burial, but it had already been taken to Toronto to be used at the medical school, which often happened with residents of the Home. Garland died in 1850 and Judge Miller in 1874 so Glover outlived them both.

A Wisconsin Historical Marker at Cathedral Square Park in Milwaukee marks the site of the original courthouse and jail where Joshua Glover was imprisoned by federal marshals and later rescued by the people. Also in Milwaukee northwest of downtown under the Interstate 43 freeway at Fond Du Lac Avenue, pursuant to the National Underground Railroad Network to Freedom program , a large mural has been painted on both sides of the underpass marking Glover’s escape and that of the first traveler on the Underground Railroad, Caroline Quarles. A marker was installed in Racine, the city where he was captured, in 2003. The Joshua Glover House, a half way house for forty-five years, is today located at 2105 N. Booth Street in the River West Area of Milwaukee. Recently, Riverside High School students helped to rename an intersecting street one block south as Glover Street.

The case still holds important lessons for us today. All judges have a responsibility to uphold the Constitution and where the Supreme Court does not, other judges must. Whether the question is habeas corpus for so called enemy combatants, authorizing torture, or holding people in confinement for years with no charges, no hearings and no lawyers, where are the judges of Smith’s caliber? Authority is not obeyed just because it’s powerful, words are not correct just because they are spoken by certain persons. As Justice Smith said, “It should be remembered that "error does not become truth by being often repeated; nor does truth lose any of its force or beauty by being seldom promulgated. … Nor does vice become virtue by persistence in its practice; nor bad government grow better by acquiescence in its evils; nor, where a people have adopted a written fundamental law, for the government alike of themselves and their rulers, does the infraction of that law become healed by a denial of its occurrence.”

In July of 1854, the capture and escape of Glover galvanized the second meeting of the Republican Party in Madison, Wisconsin. The new party platform demanded that slavery be confined to its present location, that it be excluded from territories and that no new slave states be admitted. In November 1854, Republicans won two of the three Congressional seats and broke the Democratic hold on Wisconsin. The Republicans went on to elect Abraham Lincoln resulting in the Civil War, the Emancipation Proclamation and eventual abolishment of slavery by the Thirteenth Amendment.

The rescue of Glover was a national event and in February 1860 was discussed on the floor of Congress. On June 25, 1864, the Fugitive Slave Act was finally repealed. In 1865, Ezekiel Gillespie, a leading figure in Milwaukee’s Black community attempted to vote but was turned away. Paine, who had defended Glover successfully, defended Gillespie. The court ordered that Blacks could vote in Wisconsin. Though Gillespie brought voting rights to an entire state, his act received no accolades and was not even mentioned in his obituary.

The saga of Joshua Glover took him from a slave auction block to a fugitive slave, from battered and trussed like a turkey by slave catchers to rescue from jail on the shoulders of white strangers, from an unknown man to a local cause for abolitionists, to a trigger in the Civil War that eventually freed his people. He undoubtedly had no idea what he had wrought. Like Gillespie, he never received credit for his brave acts that rippled forth to free a people. Likewise today, we must remember that no matter that our small acts of protest, of bravery, of courage don’t seem to have any immediate result, in the long run, we may well have set the world free.