School Law of 1852

The newly adopted state Constitution required the election of a Superintendent of Public Instruction and the creation of a system of Common Schools. In response to those requirements, the General Assembly adopted a school law in 1852. The law created the State Board of Education. The Superintendent of Public Instruction was to be the President of the Board and the only member directly involved in education. The other members were the Governor, the Secretary of State, the Treasurer, and the Auditor. In 1855, the Attorney General was added to the list. “The Board was directed to meet annually for the purpose of promoting education through conferences, interchange of views, introduction of uniform schoolbooks, establishing township libraries and determining questions that might arise in connection with the public schools.” William Larrabee was the first Superintendent. Caleb Mills, so instrumental in creating the position, was the second.

The School Law  also provided that that schools would be supported through state taxation but delegated the responsibilities of erecting school buildings and hiring school teachers to the township trustees. The law declared each civil township a township for school purposes as well.  The old district schools became property of the townships. The quality of these facilities varied wildly, and sometimes there were no buildings available at all.

Many cities and townships raised taxes of their own. However, in 1858, the Supreme Court, in the case of Jenners v. Lafayette, a tax for a township in Lafayette (50 cents on the hundred dollars) was struck down as impermissible. (“This decision deprived the schools of most of their revenue and caused almost a complete shutdown of the schools. This decision was as unpopular as the Dred Scott Decision. “) The Court reasoned that the new Constitution’s prohibition on special laws regarding public education forbade local units of government from taxing themselves to pay for schools.  For several years, this decision ground school progress to a halt. Some cities tried to muddle along with private donations. Others simply gave up. The General Assembly subsequently passed legislation saying this was permissible, but the Supreme Court continued to strike down such measures through the 1850s and 60s. The General Assembly finally wore down the Court and an 1885 decision found one of these measures acceptable.

Fugitive Slave Act

In 1850, as part of the Compromise of 1850, the U.S. Congress adopted the Fugitive Slave Act. This law placed all black people, free and fugitive alike, at risk. The standard of proof for a slave catcher was trivial — he simply had to swear an oath to a justice of the peace and received the legal authority to carry a black person away into bondage. Federal commissioners had the power to deputize private citizens to assist in the capture of fugitives. The commissioners received $10 for each person they returned to bondage.

John Freeman – 1853

In 1853, John Freeman, a wealthy black man who lived in Indianapolis was accused of being a slave. Freeman had come to Indianapolis from Georgia in 1844. By 1853, he had acquired about 4 acres in the vicinity of what’s now Capitol and Michigan Street. He worked as a painter and also owned a restaurant in town. That year, a Methodist minister from St. Louis came to town with an affidavit claiming that Freeman was his slave who had run away 17 years ago. Being the rare black man with the wherewithal and social connections to fight this kind of thing, some of the city’s best legal talent came together to litigate the matter. However, while the charges were pending, the law did not authorize bail. So Freeman was stuck in jail for 9 weeks.

Freeman’s side located witnesses who knew him as a free man in Georgia during the relevant time period and even seem to have located the real runaway slave who was up in Canada (and, for obvious reasons, would not come to Indiana to testify.) However, the minister’s side came up with three people willing to testify that Freeman was the runaway (after Freeman was compelled to let these witnesses view him naked). During the course of these proceedings, local sentiment was aroused against the minister and the marshals enforcing the Slave Act. The minister fled the area before the trial took place.

Even though Freeman’s lawyers did not charge him for their services, he still took a substantial financial hit from the experience. He was forced to pay for his own jailing ($3 per day), and the costs of transporting witnesses from Georgia were substantial.

Freeman attempted to recoup his losses by filing civil suits against the minister and against the federal marshal. The suit against the marshal was dismissed on a technicality (the suit was filed in Marion County but the marshal lived in Rush County.) Freeman obtained a judgment against the minister in the amount of $2,000, but he fled further — selling his house in St. Louis and making himself scarce. Freeman’s finances were decimated, but, comparatively speaking, his was a fortunate outcome. There is no telling how many black northerners were falsely accused and lacked the resources to fight the accusation. (Though, given the immorality of slavery, a truthful accusation doesn’t make the federally-assisted intrusion of the South’s peculiar institution much more palatable.)

Calvin Fairbank – 1851

Of some note, in part because it involved the signing of an arrest warrant by Governor Wright, was the matter of Calvin Fairbank.  He was a Methodist Episcopal minister, educated at Oberlin, who had become an abolitionist after a woman who had been a slave told her story of being separated from her family as a child. Fairbank had been sentenced to jail and released previously for his work helping slaves escape. He was enlisted to help with the escape of a Kentucky slave named Tamar and was in Clark County after having successfully assisted with Tamar’s case. On November 9, 1851, Fairbank was arrested by the Sheriff of Clark County on a warrant signed by Wright, acting on a request from Kentucky’s governor. However, the sheriff allowed Fairbank to be taken by men from Kentucky, apparently in violation of the law on how such extradition was to take place. After that, he was run through a sketchy legal proceeding in Kentucky where he wasn’t allowed to call witnesses on his own behalf, and then subjected to some brutal treatment at the hands of the Kentucky penal system — flogging and overwork being the primary methods of punishing Fairbank. He was said to have sustained over 30,000 lashes in the 12 years he was imprisoned in Kentucky.

West – 1857

There was also the case of a slave named West in 1857. A slave catcher  had taken West in Illinois and was passing through Indianapolis, waiting to catch a train back to Kentucky. (Railroads were growing during this period — by 1853, the Monon Railroad had extended from the Ohio River to Lake Michigan.) Abolitionists in Indiana initiated a trial, accusing the slave catcher of kidnapping a free black man, hoping – if nothing else – to drive up costs for slave owner in an amount that exceeded the value of West to the slaveowner. They hoped that, if the juice wasn’t worth the squeeze, maybe slavers would stop operating in Indiana.

One issue in the case was whether a cause of action could be instituted by a black man, such as West, who had entered Indiana after the new Constitution in contravention of the new Article XIII. Fairly early on in the proceedings, the kidnapping charge was dropped, but then a new proceeding was instituted on whether a warrant under the Fugitive Slave Act was appropriate. Lawyers for West scrutinized every undotted “i” and uncrossed “t.” For example, they challenged the affidavit that spoke of West’s status as a slave in “Kentuck.” Of course – they argued, “Kentuck” is not a state, so the affidavit should be stricken and the cause dismissed.  When the evidence showed pretty clearly that West was, in fact, a runaway slave; his counsel shifted gears and offered up abolitionist sermons designed to arouse the public:

The fugitive act is a godless law, it is an unutterably infernal law and if its provisions are carried out, it will drag God Almighty from his throne, and inaugurate the reign of the devil upon the earth. There is not a doctrine taught by Jesus Christ which is not derided and trampled under foot by the law.

When these appeals to the federal commissioner were unsuccessful, West’s attorneys tried filing for a writ of habeas corpus in the federal court. The federal judge denied the petition because his jurisdiction was concurrent with that of the federal commissioner, and he had no authority to second guess the Fugitive Slave Act or the commissioner’s decision under the circumstances.  After that, there was a brief, failed escape attempt followed by the process of transporting West from Indianapolis to Louisville. The crowds surrounding the train were ugly, and a great deal of security was required. There were at least two attempts to block or derail the train by blocking the tracks. The whole undertaking had cost West’s purported owner a great deal, and angry sentiment had been aroused in the people of Indianapolis.

If you read the Southern articles of secession, when the individuals purporting to secede from the United States are not talking about how they are seceding to preserve slavery; very often, they are talking about their dissatisfaction with northern compliance with the federal Fugitive Slave law. I mention this, not because it’s so important to Indiana history, but because modern revisionists seeking to slap some lipstick on the pig of Southern motivations at the time, offer up nonsense about how secession was really about a deep commitment to state’s rights and federalism. Their commitment to the Fugitive Slave Act exposes this as nonsense. In any event, it’s clear that sectional tension over the issue of slavery was a festering wound in the country during the 1850s.

Next time: More on Governor Wright and the Election of 1854.

This is installment 3.6 of my Indiana Bicentennial series. Installment 3 covers generally the period from 1832 to 1848. 3.1: national context. 3.2: Gov. Noah Noble. 3.3: Indiana’s Mammoth Internal Improvement Act of 1836. 3.4: Governor Wallace and Indian removal in Indiana. 3.5: Gov. Samuel Bigger. This last part of Installment 3 looks at Gov. James Whitcomb, the Mexican American War, and Education in Indiana.

James Whitcomb (1843 – 1848)

James Whitcomb moved from Kentucky to Bloomington, Indiana at the age of 26 where he established a law practice and became the Monroe County Prosecutor. Elected to the state Senate in 1830, he was an outspoken opponent of the Mammoth Internal Improvement Act. That along with the fact that he was a Methodist placed him well to run against Governor Bigger in 1843. (Some of Presbyterian Gov. Bigger’s comments in the 1830s about the educational competency of Methodists had alienated that group.) Whitcomb won the election by 2,000 votes out of 120,000 cast. Significantly – given how close the election was – 1,600 votes went to the newly formed Liberty Party which ran on an anti-slavery platform.

Whitcomb’s first term was devoted to addressing the State’s financial situation. Measures taken during Bigger’s tenure, a somewhat improving economy, and Whitcomb’s cuts to state employee compensation helped improve the state government’s financial outlook. During his term, he advocated for the creation of the Indiana School for the Deaf and a state mental asylum. Both initiatives were successful, but funding would have to wait until further recovery of the state’s financial prospects.

The State had made some recovery on its finances at the time of Whitcomb’s re-election bid, and he defeated Whig Joseph Marshall and Liberty candidate Stephen Stevens. However, despite the improvement on the debt situation, discussions were underway with Charles Butler, a representative of eastern and foreign bondholders to whom Indiana remained indebted. Butler had successfully negotiated a restructuring in Michigan which had similar internal improvement financial problems — also exacerbated by the Panic of 1837 and also involving the sketchy Morris Canal and Banking Company. In 1845, Butler began negotiations. Prior to the legislative session in December of 1845, Morris gave a speech in Terre Haute where he proposed that a tax should be imposed dedicated to partial repayment of the bonds. The bondholders, in turn, would take the Wabash & Erie’s revenues for the other half. He persuaded Governor Whitcomb of his plan and, together, they lobbied local and legislative leaders.

For his part, Butler attempted to scold Indiana for paying local contractors before paying bondholders and cast the State’s debt repayment obligations in moral terms, making much of the “widows and orphans who held Indiana bonds and depended on regular interest payments.” After some rough and tumble debate (one Senator called Butler’s style of writing and thought as “frothy and bombastic”) the legislature passed a bill in early 1847 that provided for payment of half of the bond obligation and traded control and revenues of the Wabash & Erie for the remainder. The debt still consumed about half of the State’s revenues, but it was becoming more manageable.

Mexican-American War

In 1846, the Mexican-American War broke out.  Initially, it would seem that Indiana would have difficulty meeting its obligation to supply soldiers. The militia system had been largely abandoned as the Native Americans had been pushed out of the state. The state’s arsenal was basically empty, and its militia was dubbed the “cornstalk militia,” with soldiers supposedly drilling with cornstalks as rifles and tassels in their caps.

In May, the Department of War sent a letter to the Governor requiring three regiments.The conflict was unexpected, the State had not appropriated money for the resulting expenses, and the State’s credit was ruined so it could not borrow for the necessary equipment.  Three regiments meant that 2,811 men had to be organized. However, a patriotic desire to plant the Star Spangled Banner on the Halls of Montezuma helped. Lew Wallace, then 19 years old, had a company organized in Indianapolis within 3 days. Men began to pour into Camp Clark (east of New Albany) from all over the state. Several branches of the State Bank made money available to fund the effort, and Indiana was able to meet its quota within 19 days. One unfortunate episode of the Indiana Brigade involved a mistake by the Second Indiana Regiment which was ordered to retreat when they should have held or advanced with the rest of the troops, apparently turning the battle in favor of the Mexicans under Santa Ana at Vera Cruz on February 23, 1847. Later in 1847, Indiana was asked to and did provide a fourth and fifth regiment. The U.S. won the war against Mexico and, by July 1848, the troops were back home. “A season of barbecues followed, the battle flags were presented to the State among solemn ceremonials, and the chapter was closed.”

Education

In the 1840s, the state of education in Indiana remained more aspirational than real. The federal Land Ordinance of 1785 provided that section 16 in each township would be set aside to support schools. The ordinance required surveyors to divide land into townships that were six miles square. Within each township, there were to be thirty-six sections, each a mile square. According to the ordinance,  “there shall be reserved the lot No. 16, of every township, for the maintenance of public schools within the said township.” Meanwhile, Indiana’s constitution of 1816 promised that the state would create, “as soon as circumstances permit,” a “general system of education, ascending in regular gradation, from township schools to state university, wherein tuition shall be gratis, and equally open to all.” However, as of the 1840s, education of Indiana was haphazard and not much of a system at all. It ranked lower than some Southern states and all of the northern states in terms of literacy — 18 out of 28 states overall. Less than a quarter of children between five and fifteen attended school. 14.3% of adult Hoosiers were illiterate compared to a national average of 11.6%. By 1850, its literacy rank among the states had dropped to 23rd. Part of this is attributable to settlement patterns. A lot of the state’s settlers had come from the upland South which was not known to have a strong tradition of literacy.

However, during the 1840s, an effort was made to turn the aspiration of public education into a reality. A prime mover in this effort was a Presbyterian missionary from the east by the name of Caleb Mills whose six “One of the People” addresses helped culminate in the School Law of 1852. Mills was not alone in his efforts, rather he was part of a network of reformers working throughout the Midwest to improve education. Mills became familiar with the state of education in Indiana when he took a two year leave of absence from his studies at Andover Theological Seminary to institute Sunday School programs in northern Kentucky and southern Indiana.  In 1833, after graduating from Andover, Mills took a position at “Wabash Manual Labor College and Teacher’s Seminary” in Crawfordsville.

Thirteen years later, in 1846, Mills wrote the first of his “One of the People” papers. It was published in the Indiana State Journal in 1846 on the second day of the 1846 General Assembly under the title of “An Address to the Legislature.”

[Mills] pointed to Indiana’s lamentable inadequacy in the vital field of education, then passed to concrete consideration of particular evils and of remedies. Public funds at that time devoted to schools came largely from the federal land grant of one section in each congressional township. The money derived from these sections was not consolidated and then distributed equally throughout the state; instead each township kept whatever it could realize from its own section. Thus the very communities that most needed public assistance and could least afford to support schools from local funds, i.e., communities where land values were low and farms poor, in fact received the least help from the land donation; prosperous townships got the highest incomes from their more valuable lands. Such inefficient use of the funds must be rectified, said the Address, by equal state-wide distribution. Furthermore and even more significant, the really basic support for free schools must be raised by taxation. Finally, only if higher schools improve will well-trained teachers be available; therefore let the county seminaries and the state university be reorganized. Sell all the physical facilities of the seminaries and of the university; distribute the interest on the proceeds to one private seminary in each county and to every college whose governors will agree to maintain certain stipulated standards, to train teachers, and to devote the money received to provide prospective teachers with free tuition.

Mills was joined by Governor Whitcomb who, in his annual address to the legislature,”urged that body to revise the entire school system and place it under the charge of a state superintendent.”

No legislation resulted; however, in May 1847, the General Assembly called a state common school convention presided over by state Supreme Court Chief Justice, Isaac Blackford. The result was work produced by two committees. One was a public relations effort that explained the state of public education in Indiana and recommended the allocation of additional funds to education, that Indiana public schools should be free to students, that schools and teacher standards should be uniform, and that a superintendent of common schools should be established. The second committee produced draft legislation for consideration by the Indiana General Assembly calling for a poll tax, an organized system of superintendents and trustees, and a referendum upon the issue of common schools. That work, in conjunction with a second address by Mills published during the General Assembly’s work in December 1847 resulted in a referendum in the 1848 election wherein a majority of Hoosiers expressed support for the idea of a system of common schools.

Mills third address framed the results of the referendum for consideration by the 1848 General Assembly. He pointed to the strong correlation between a county’s high illiteracy rate and hostility to a system for common schools. Despite the negative votes, the majority of positive votes was “a cause for encouragement on the part of education advocates in the Hoosier state: ‘There was more genuine patriotism in the school vote of last August than was ever expressed at the ballot box since she [Indiana] became a sovereign state.'” The legislature passed a school law in 1848 which used taxation to support common schools and equalized the period of instruction for township schools. However, its effect was limited because it allowed counties to opt out, and, additionally, school funds were not consolidated and distributed equally among communities. After 29 counties rejected the 1848 system, Mills fourth address was focused on criticism of the 1848 law. The fifth appeal was directed at the Constitutional convention that led to the 1851 constitution. That document provided for “a general and uniform system of common schools, wherein tuition shall be without charge and equally open to all.” Finally, in 1852, the General Assembly adopted the School Law of 1852 which “established a common school fund, a centralized system of school organization, and a Superintendent of Public Instruction— all features Mills’ had strongly supported in his address. The 1852 law did not fully incorporate Mills’ proposals for graded schools and normal schools to standardize education and teacher training.”

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The education saga sort of straddles the time period had artificially set for this segment of my bicentennial series. So, to return briefly to Governor Whitcomb’s administration: before the end of his term, Governor Whitcomb was elected to the U.S. Senate by the state legislature and was replaced by Paris Dunning on December 26, 1848. Shortly before leaving office, in his December 1848 address to the legislature, Governor Whitcomb  advocated for a new state constitution.  Among the issues he regarded as being crucial to address was the proliferation of local and special legislation, assumption of public debt, and a change to a biennial rather than annual meeting of the General Assembly. More on that in Installment 4 of this Bicentennial series where I hope to address the convention for the 1851 Constitution and the onset of the Civil War.