This article is based on a talk I gave at the Digital Public Library of America’s DPLA Fest conference on September 21, 2018.
Disclaimer: I am not a lawyer and this is not professional legal advice. This article is for educational purposes only. Please consult counsel concerning any potential digitization projects your institution is interested in pursuing.
Introduction
Good afternoon. Thank you very much for attending this session. I’m Justin Clark, Project Manager of Hoosier State Chronicles, our state-wide historic digital newspaper program at the Indiana State Library. We are a part of the National Digital Newspaper Program (NDNP), a joint venture between the Library of Congress and the National Endowment for the Humanities. To date, we’ve digitized nearly a million pages of historic Indiana newspapers, of which over 300,000 have gone into NDNP’s Chronicling America database of nearly 14 million digitized newspaper pages from across the county.
When digitizing historic newspapers for NDNP, one of the most important things to consider is whether the paper is under copyright. You could have picked the perfect title, had it approved by your institution, and completed all of the arduous work of collation, but if you don’t check its copyright status, your work could all be for naught. This is why a basic understanding of fair use, the public domain, copyright, and conducting copyright research is essential to any newspaper digitization project. This talk will provide a general overview of what fair use is, how it relates to newspaper titles, and how you can complete the necessary research to ensure your desired title for digitization is acceptable. Doing this work gives you not only an expanded scope of potential titles for digitization, but it also provides peace of mind that you won’t hear from any lawyers in the future, besides your institution’s counsel, of course.
Now, before we begin our stroll through copyright, I must say this. I AM NOT A LAWYER . . . nor have I played one on TV. This talk is only an educational overview of what I’ve learned about copyright research for digitizing newspapers. Other materials such as photographs, 3D objects, and written documents may not follow the same procedures or guidelines. It is imperative that you consult your institution’s legal counsel before making any concrete decisions to digitize anything. This saves you a visit from an irate lawyer who is upset that you’ve digitized materials that are still in copyright. And this little disclaimer saves ME a visit from an irate lawyer who got the call from the other one about copyrighted materials. In short, the only lawyer you want visiting your office should come from your institution. Now, with that out of the way, let’s start with fair use.
What Is Fair Use?
The Fair Use Logo, Wikipedia.
In the United States, copyright holders possess considerable legal rights for the protection of their intellectual property. This is a great thing – copyright holders can use their hard work to ensure an income and that scammers will keep their greedy hands off of work that doesn’t belong to them. But there are exceptions. One such exception to US copyright law plays a vital role in our emerging digital landscape: fair use. Fair use, according to the U.S. Copyright Office, “is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” Essentially, fair use allows someone to use a copyrighted work for a completely different purpose than the copyright holder originally intended, which usually falls in the categories of “criticism, comment, news reporting, teaching, scholarship, and research.” These protections fall under Section 107 of the Copyright Act.
To determine whether or not a use of a copyrighted work is fair use, four general guidelines are followed. The first is the “purpose and character of the use.” Most of the time, if a person is using a copyrighted work for non-profit and/or educational purposes, it generally falls under fair use. This is especially the case if the use is “transformative” meaning that it “add[s] something new, with a further purpose or different character, and do[es] not substitute for the original use of the work.” In NDNP’s case, taking a newspaper which was originally created for immediate public consumption at a profit and transforming it into a digital historical artifact at no cost to the researcher usually falls under fair use. This guideline is not ironclad; sometimes, a copyright holder will object to their work being used in this way. Nevertheless, this guideline is generally applicable to NDNP and newspaper digitization as a whole.
Third, the “amount and substantiality of the portion used in relation to the copyrighted work as a whole” plays a role in deciding fair use. In other words, if a person just blatantly copied the entirety of a copyrighted work and then sold it for their own benefit, it would not be fair use. However, for material that falls under the public domain (more on that below), recreating the entirety of the work is more than fine and falls under fair use. NDNP projects often have syndicated columns and cartoons that are copyrighted but the newspaper as a whole is not copyrighted. In those instances, the amount of non-copyrighted work outweighs the copyrighted work and the digitization of a newspaper is then considered fair use. We will unpack this more in the copyright research section.
Finally, fair use is determined by the “effect of the use upon the potential market for or value of the copyrighted work.” Put simply, does the use of a copyrighted work ruin its value in the marketplace? In the case of digitizing newspapers, a newspaper’s value stemmed from its original sale date, which was years or decades before. If a newspaper title is already in the public domain, its original market value is already gone and can be used by others in a myriad of ways. For NDNP projects, turning a newspaper into a primary source historical document does not destroy the market value of the original paper nor does it harm copyrighted works therein (syndicated columns and cartoons). Potential researchers are using the digitized newspapers for scholarly purposes, not for the resale of copyrighted material. As with the other three guidelines, the “market value” guideline is generally met.
This overview of fair use is not exhaustive. Definitely review material on fair use from the U.S. Copyright Office and the Copyright Alliance for more information.
What is “Public Domain”?
Public Domain Logo
Alongside fair use, a clear conception of public domain is essential for working on NDNP-related projects. Works in the public domain, according to the Stanford University Library, are:
. . . creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it.
A work enters into the public domain via three avenues: it can’t be copyrighted (i.e., titles, names, facts, ideas, government works), the creator of the work places it in the public domain, or its copyright term has expired. With NDNP, the last of these three is the most important.
Have you ever wondered why the vast majority of NDNP’s content, and most digitized newspaper content, ends around 1923? It’s for a very simple reason: all works published in the United States before 1923 are in the public domain. No copyright research is necessary for this material; it’s free and clear for you to use. However, NDNP announced in 2016 that it has expanded its date range for newspaper titles, from 1836-1922 to 1690-1963. Thus, post-1923 works are in the public domain if a copyright claim was never filed from 1923 through 1977 or if the copyright was never renewed from 1923 through 1963. All NDNP projects that follow these public domain guidelines will easily determine if their potential title is ready for digitization.
Now that you know how fair use and the public domain work, you can begin the necessary research to determine the copyright status of a newspaper title. Here in Indiana, we wanted to know the copyright status of one of Indianapolis’s premier papers of the 20th Century: the Indianapolis Times. The Times ran from 1888 (when it was titled the Sun) until 1965, a pretty impressive run for a daily metropolitan newspaper. From 1922 until its end, the Times was owned and operated by Scripps-Howard, a major publishing corporation based out of Cincinnati, Ohio. Knowing that such an influential publishing company owned the Times from 1922 until 1965 put an increased responsibility on us to make sure that the paper was either in the public domain and/or that its digitization would be considered fair use.
Indianapolis Times, October 11, 1965, Indiana State Library Newspaper Microfilm Collection.
The Catalog of Copyright Entries (1906-1977) is available at Internet Archive (www.archive.org) in a readable, PDF format. It comes with Optimal Character Recognition (OCR), so it is text-and-word searchable. To begin, view the 1923 Catalog of Copyright Entries, Part 2, which provides the copyright and copyright renewal for all periodicals published in the United States that year. For all the following years, look for the volume devoted to periodicals. In the search field, type the name of your title. If nothing comes up, search the catalog’s index for the title. If nothing is there, check the title within the book in the new copyright section as well as the renewal section. If nothing comes up, your newspaper title filed neither a new copyright nor a copyright renewal and it is in the public domain. Consult all remaining years of the catalog (in the periodical section) for any new copyright notices or copyright renewals. If you do find that your title was published with a copyright notice and a renewal from 1923-1963, it is not in the public domain and will remain under copyright for 95 years after the publication date. However, if the title was published from 1923-1963 with an initial copyright notice but was not renewed during that time, it is in the public domain and you are free to digitize.
Catalog of Copyright Entries, Library of Congress/Internet Archive. This is an example of the periodicals section of the catalog.
If you need to check anything after 1977, use the online Public Catalog of Copyright Entries, which covers 1978 to the present. This search is much easier than combing through the scanned versions at the Internet Archives. All you have to do is type in your title in the search bar; if you get no results, no copyright renewals were filed and you’re good to move forward. If there are copyright renewals, the title will remain under copyright for 95 years after its initial publication date.
Online Catalog of Copyright Entries, Library of Congress.
For our research, we started with 1922, the year that Scripps-Howard Newspapers purchased the Times and the final year it could have been in the public domain (this research was done in 2017, before the public domain covered 1923). According to listings in the Catalog of Copyright Entries and the Public Catalog of Copyright Entries, Scripps-Howard Newspapers never filed the Times for copyright between 1922-1965 or for subsequent renewals from 1965-present. Therefore, the Times as a complete newspaper is within the public domain and eligible for digitization.
Online Catalog of Copyright Entries, Library of Congress. A search for “Indianapolis Times” yields no results, which means that its copyright was never renewed after 1978.
But your search doesn’t end there! The copyright of individual articles and syndicated content also needs to be established. Library of Congress policy for NDNP has generally been that individually-copyrighted content within the “context” of an entire newspaper in the public domain is not a problem, so long as it doesn’t account for over 50% of the entire work. This rule is a recommendation and not an absolute policy. It is still up to you as an NDNP awardee, your institution, and your legal counsel to establish the proper procedures for such content.
Catalog of Copyright Entries, Library of Congress/Internet Archive. This is an example of the book and/or pamphlet section of the catalog, where copyright information on contributions to periodicals is located.
With our research of the Times, one type of syndicated content that showed up right away within copyright research was the Sunday supplemental, with PARADE magazine being an applicable example in the Times. From 1963-1965, PARADE was published with Sunday issues of the Times; it was copyrighted when it originally ran (and included in the Catalog of Copyright Entries) and was subsequently renewed (and included in the Public Catalog of Copyright Entries). As such, we decided not to include this supplemental in our NDNP deliverables. Regarding individual articles, we found 32 copyright listings in the Catalog of Copyright Entries from 1922-1965; only the initial copyright was listed and no renewals were found. These were then cross-referenced in the online Public Catalog of Copyright Entries to check for post-1978 renewals; none were found. These articles accounted for less than 10% of the entire field of research, way less than the more than 50% threshold for fair use. (So long as you consult your institution and its legal counsel.)
An example of PARADE magazine’s copyright notice from 1964. Supplementals like this are not in the public domain.
Now that you’ve thoroughly gone through the Catalogs, it’s also good policy to review the title’s microfilm. Here’s what we did. We chose three reels from each decade of the Times from 1923 to 1965 and scoured them for copyrighted content. We concluded that the vast majority of material on these reels fell within the public domain, in keeping the Times’s policy on copyright. As for what was copyrighted, it was mostly advertisements for still-existing products (Columbia Records, Bayer Aspirin), syndicated cartoons (individual cartoons scattered throughout the paper as well as one full page an issue), serialized fiction, and syndicated columns. These materials contained a copyright symbol and text, indicating its status. We concluded that these entries constituted a small minority of the newspaper content and largely will not affect the proprietary interests of the copyright holders (seeing as the content in question was digitized from second-generation microfilm, which itself come from first-generation preservation microfilm based photographed pages; the loss in resolution and quality should not urge copyright holders to pursue legal action). You can do more or less with your title’s microfilm than we have, but this should be enough to establish a broad consensus on your title’s copyright status.
A Bayer Aspirin ad from 1925. This was a copyrighted aspect of the Indianapolis Times that we reviewed when combing the microfilm collection.
Once you’ve done all of these procedures, it is best to draft a full report of your research and findings to your NDNP advisory board, as well as your institution’s legal counsel. Make sure to be as detailed as possible – this ensures they fully understand what you’ve done and saves you the trouble of having to answer a bunch of follow-up questions. For our research on the Times, I and my project director drafted our report and then sent it to the aforementioned parties. From there, we received approval to digitize the Times.
An example of syndicated and copyright cartoons from the Indianapolis Times.An example of copyrighted serialized fiction in the Indianapolis Times.
One more tip for your research: make sure to keep detailed notes of everything you do. You will be going through a lot of newspapers, so it will help you keep things straight. It also provides a paper trail that your institution’s leadership and legal counsel can consult if necessary. I suggest using Google Sheets and Docs to complete this research. It will be in the Cloud and can be easily shared with anyone who would like to see it. If Google is not your fancy, use Microsoft Office and back up your work to the Cloud or another hard drive. You don’t want to work diligently for months to have all of it lost because of computer issues.
Examples of how I documented all my work. You will be going through a lot of newspapers, so it will help you keep things straight. It also provides a paper trail that your institution’s leadership and legal counsel can consult if necessary.
Conclusion
Digitizing newspapers has been one the most rewarding things I’ve worked on in the public history and cultural heritage space. Seeing a title like the Indianapolis Times digitized and made available for researchers to use, for free, has been a real privilege. But all of this could not have happened without doing the long and often-tedious work of copyright research. Researching a title’s copyright ensures that it is free and clear for you to digitize—and a lawyer from King Features or PARADE magazine won’t come knocking on your door. Yet, copyright research can also be very rewarding. It gives you a big-picture view of the title you’re considering for digitization. You’ll see who its original audience may have been, the kinds of stories they covered, and how it fits in the context of your state’s, and the country’s, history. This, among many other things, makes copyright research worth it. Thank you.
Summer is upon us, and one of the staples of American summers is fast food. It’s always a blast to roll down the windows, crank up the tunes, and head on over to your favorite drive-thru. Now, we all know about the classics: McDonald’s, Burger King, Taco Bell, KFC. But there’s one fast-food giant, wildly popular from 1950s through the 70s, which almost beat them all. That was Indianapolis-based Burger Chef.
Indiana, a state claimed as “free” from its statehood in 1816, was nevertheless the 7th highest non-southern state with racial terror lynchings, with 18 separate incidents. When searching through Indiana newspapers, many stories emerge of outlaw vigilantes who terrorized and brutalized African-Americans, sometimes for nothing more than alleged crimes. Since many were lynched before they received equal justice under the law, many of their lives ended tragically through injustice under the lariat.
While the vast majority of lynching occurred in the south, a sizable portion occurred in the Midwest. Indiana, a state claimed as “free” from its statehood in 1816, was nevertheless the 7th highest non-southern state with racial terror lynchings, with 18 separate incidents. One way historians have uncovered these horrific crimes is with newspapers. When searching through Indiana papers, many stories emerge of outlaw vigilantes who terrorized and brutalized African-Americans, sometimes for nothing more than alleged crimes. Since many were lynched before they received equal justice under the law, many of their lives ended tragically through injustice under the lariat.
One of the earliest lynchings in Indiana newspapers was chronicled by the Marshall County Republican on November 23, 1871. Three African-Americans, whose names were only given as “Johnson, Davis, and Taylor,” were accused of the murder of the Park family in Henryville, Clark County. Matthew Clegg, “a shystering lawyer” from Henryville, had a dispute with the Parks and when he likely had them murdered, he pushed the blame to the three local African-American men. When the grand jury couldn’t find enough evidence to indict them, the local vigilance committee took matters into their own hands. They broke through the jail, grabbed the three men, placed nooses around their neck, and dragged them through the street. They were then strung up next to each other on a tree. The Republican described their bodies in painful detail; Taylor’s description was the most gruesome: “His form was nude, save the slight remnants of a white shirt that was stretched across his lower limbs, while the hangman’s knot under his chin threw his head back in, a gasping movement, and his white teeth and distended lips grinned with a fiend-like scowl . . . .” It is unclear from the newspaper account if anyone was tried for the lynching.
In 1886, the Indiana State Sentinel reported the lynching of Holly Epps, who had been accused of the murder of a local farmer in Greene County. Around 12:50 on the morning of January 18, a “crowd of masked men” brandishing “sledgehammers and various other implements” descended on the Knox County jail. After failing to cajole the sheriff to open the door, the horde broke in, smashed through the jail cell, and dragged Epps out into the cold of night. Using the closest tree they could find, the mob strung Epps up and “for fully fifteen minutes he struggled for life, when death came to his relief.” The mob left his hanging remains on the courthouse grounds to be found by the county prosecutor. The sentiment of the citizens of the county, as recorded by the Sentinel, was one of satisfaction. “Citizens of all classes justify the lynching, and the moral sentiment is that the Greene County vigilants did a justifiable act in summarily removing the fiend from the face of the earth,” the Sentinel commented. The lynch mob were never prosecuted for their actions.
The 1889 lynching of Peter Willis in northern Kosciusko County received weird and contradictory coverage in the Indianapolis Journal. In its July 22, 1889 issue, the Journal ran a nondescript blurb about Willis’s lynching at the hands of a mob after he was charged with assaulting a little girl. The South Bend Tribune and the Indiana State Sentinel also ran stories with the same details. Then six days later, completely disregarding its previous coverage, the Journal published an editorial claiming “the assault and lynching episode referred to by the Sentinel [as well as the Tribune] never occurred, and is wholly an imaginary tragedy . . . .” The editorial further noted that “the only truth contained in the item is the superfluous information concerning the geographical location of Kosciusko county, which it says ‘is not in Mississippi or South Carolina,’ . . . and the further assertion that ‘it is the banner Republican county of Indiana.’” There’s nothing named Kosciusko in South Carolina and only a town named that in Mississippi; it was the Sentinel’s and Tribune’s way of saying it was in Indiana and highlighting that this can happen in the north. If the Journal thought they could drive a wedge of doubt through their phrasing, they were wrong. Furthermore, the fact that a county has Republican leanings says nothing about whether a lynching can occur there. This editorial was likely a political device to stave off criticism against a northern, Republican-leaning Indiana county. Sadly, it was misleading people about the unlawful execution of a person who had not yet been proven guilty in a court of law.
The beginning of the new century brought with it the same kinds of lawlessness that led to lynching, despite the Indiana General Assembly passing anti-lynching laws in 1899 and 1901. George Moore, an African American accused of assaulting two women and fleeing law enforcement, was lynched on the evening of November 20, 1902. He was “hanged to a telephone pole” in Sullivan County after a mob of roughly 40 men fought against the sheriff’s department. Moore had been a fugitive, attempting an escape to Illinois when he was captured by authorities in Lawrenceville, Illinois. The mob “beat him over the head with their weapons” before they hanged him. Governor Winfield T. Durbin was troubled by the situation and tried to stop it, but the requisite military and law enforcement officers couldn’t get there in time. It was another instance of mob violence instead of real justice, and the Indianapolis Journal said as much two days later in an editorial. “It is no excuse for mob law to say that the legal penalty in such cases is inadequate,” the Journal declared, “That is not for any mob or any community to say. If the penalty is not severe enough let the law be changed in a regular way, but while the law stands it should be observed.”
It is a common notion that lynching, much like racism, was a southern phenomenon in the United States. These select stories from Indiana newspapers illustrate just how wrong that notion is. The prejudice that people felt motivated them to take the law into their own hands, with disastrous consequences. Justice should be applied by democratic institutions, not by mob rule. That’s how we ensure the principle of equality under the law. But animus against African Americans was stronger than the virtue of justice. As a group of preachers declared in a 1910 article for the Indianapolis Recorder:
. . . so long as wild men will be permitted to roam at will with ropes, shot and torch, so long will a cloud of national shame hang over the government. It is known that almost all of the lynched are members of the colored race, and in many instances the color of their skin is their only crime. It is also known that in the section of the country where almost all this barbarous and un-Christian practice is loved and cherished the colored people have no voice at the courts of mercy.
In knowing these stories, we can begin the process of healing. It will neither be swift, nor easy, but it is vital for our democracy. We owe it to the names engraved on each corten steel beam in Montgomery, Alabama, of at least 18 are from the Hoosier state.
Thanks for watching. Please click “like” in you enjoyed this video and make sure to subscribe to keep updated on all new videos. To learn more about Flossie Bailey, check out Nicole Poletika’s article from the Indiana History Blog. Learn about other stories of lynching at Chronicling America and Hoosier State Chronicles. The links are in the description. Finally, have you visited the National Memorial for Peace and Justice? Were you aware of lynchings in Indiana before? What do you think we can do today to advance peace and justice? Leave your answers in the comments below. We want to hear from YOU.
Articles from Chronicling America and Hoosier State Chronicles
At just 110 pounds, Sullivan, Indiana-native Will Hays was not exactly the imposing figure you’d expect to be the film industry’s regulator, but he nevertheless left a substantial mark on the movie industry during the first half of the twentieth century.
Indiana’s own Richard Wigginton Thompson, former Secretary of the Navy, was an emblematic product of American corruption during the Gilded Age. In many ways, he was the living embodiment of failing upward; despite being clearly incapable of serving as Naval Secretary, he continued to rise through the ranks of the political establishment. In effect, his story is but one, small part of a larger story about how government is not always staffed by the “best and brightest,” but rather its exact opposite.
There’s one tradition that often gets misunderstood during this time of year, especially among us Americans: it’s using the phrase, “Happy Holidays.” Some folks think that using this term, instead of saying “Merry Christmas,” “Happy Hanukkah,” or any other specific holiday, diminishes the importance of this time of year. They think the term is too recent, modern, and without a tradition of its own. However, when one does a little digging, you’ll soon find out that the phrase has a long and treasured history here in the United States and even in the Hoosier State.
Despite its status as a free state in the federal union, Indiana maintained a complicated relationship with the institution of slavery. The Northwest Territory, incorporated in 1787, banned slavery under Article VI of the Articles of Compact. Nevertheless, enslaved people were allowed in the region well after lawmakers organized the Indiana Territory in 1800. As historians John D. Barnhart and Dorothy L. Riker noted, there were an estimated 15 people enslaved in and around Vincennes in 1800. This number only represented a fraction of the 135 slaves enumerated in the 1800 census. When Indiana joined the Union as a free state in 1816, pockets of slave-holding citizens remained well into the 1830s.
Underground Railroad Routes through Indiana and Michigan in 1848, from Wilbur Siebert’s book, The Underground Railroad from Slavery to Freedom. Internet Archive.
Making matters more complicated, Indiana ratified a new constitution in 1851 that included Article XIII, which prohibited new settlement of African Americans into the state. Article XIII also encouraged colonization of African Americans already living in the state. The Indiana General Assembly even passed legislation creating a fund for the implementation of colonization in 1852. It stayed on the books until 1865. This, along with a litany of “black codes,” limited the civil rights of free African Americans and harsher penalties for African Americans seeking freedom. As historian Emma Lou Thornbrough observed, Indiana’s policies exhibited an “intense racial prejudice” and a fear of free, African American labor. One window into understanding complex history of fugitive slaves is by analyzing newspapers. Ads for runaways, fugitive slave narratives, and court case proceedings permeate Indiana’s historic newspapers. This blog will unearth some of the stories in Indiana newspapers that document the long and uneasy history of African American freedom seekers in the Hoosier state.
Runaway advertisements predominantly chronicled fugitive slavery in Indiana newspapers during the antebellum period. These ads would provide the slave’s name, age, a physical description, their last known whereabouts, and a reward from their owner. One of the earliest ads comes from the September 18, 1804 issue of the Indiana Gazette, while Indiana was still a territory. It described two slaves, Sam and Rebeccah, who had run away from their owner in New Bourbon, Louisiana. Sam was in his late twenties and apparently had burns on his feet. Rebeccah was a decade younger than Sam and “was born black, but has since turned white, except a few black spots.” This might have been a case of vitiligo, a skin pigment disorder. In any event, their owner offered a fifty dollar reward for “any person who will apprehend and bring back said negroes, or lodge them in any jail so that the owner may get them.”
On December 9, 1807, the Western Sun ran a similar ad with a small, etched illustration of a runaway slave. Slaveholder John Taylor offered thirty dollars for the capture and return of three slaves (two men and one woman) who had taken two horses and some extra clothes. “Whoever secures the above negroes,” Taylor said, “shall have the above reward, and all reasonable charges if taken within the state; or ninety dollars, if out of the state . . . .”
These ads escalated after Indiana’s statehood in 1816, leading to expansions of the role of local officials. As Emma Lou Thornbrough noted, African Americans “were sometimes arrested and jailed on the suspicion that they were fugitives enough though no one had advertised them.” For example, the Western Sun & General Advertiser published a runaway ad on June 27, 1818 asking for the return of Archibald Murphey, a fugitive from Tennessee who had been captured in Posey County. Sheriff James Robb, and not Murphey’s supposed owner, took it upon himself to run an ad for the runaway’s return. “The owner is requested to come forward [,] pay charges, and take him away,” the ad demanded.
Owners understood the precarious nature of retrieving their slaves, so some resorted to long ad campaigns in multiple newspapers. A slave named Brister fled Barren County, Kentucky in 1822, likely carrying free papers and traveling north to Ohio. His owner offered a $100 reward for his return for at least three months in the Western Sun & General Advertiser. He had also advertised in the Cincinnati Inquisitor, Vincennes Inquirer, Brookville Enquirer, Vandalia Intelligencer, and Edwardsville Spectator.
Other ads provided physical descriptions that indicated the toll of slavery on a human being. Two runaways, named Ben and Reuben, suffered from multiple ailments. Ben had his ears clipped “for robbing a boat on the Ohio river” while Reuben lived with a missing finger and a strained hip. Lewis, a fugitive from Limestone County, Alabama, had a “cut across one of his hands” that caused “one finger to be a little stiff.” They could also be rather graphic. The Leavenworth Arena posted an ad in its July 9, 1840 issue requesting the return of a slave named Smallwood, who scarred his ankles from a mishap with a riding horse; reportedly a “trace chain” wrapped around his legs, “tearing off the flesh.” The pain these men, among many others, endured from the years of their bondage was sadly treated as mere details in these advertisements.
While ads represented a substantial portion of newspaper coverage, articles and court proceedings also provided detail about the calamitous lives of fugitive slaves. First, court cases provide essential insight into the legal procedures regarding fugitive slaves before the Civil War. The Western Sun & General Advertiserpublished the court proceedings of one such case in its November 21, 1818 issue. John L. Chastian, a Kentucky slaveholder, claimed a woman named Susan as his slave and issued a warrant for her return. Corydon judge Benjamin Parke ruled in favor of Chastian on the grounds that Susan had not sufficiently demonstrated her claim to freedom and the motion for a continuance on this question was overruled. Even if Susan had been a free person, the legal system provided substantial benefits to the slaveholders, and since she could not demonstrate her freedom, she was therefore obligated to the claimant.
As for abolitionists, they faced court challenges as well. In 1843, Quaker Jonathan Swain stood before a grand jury in Union Circuit Court, “to testify in regard to harboring fugitive slaves, and assisting in their flight to Canada.” When asked to testify, Swain refused on grounds of conscience. The judge in the case granted him two days to reconsider his choice. When Swain returned, “he duly presented himself before the Judge, Bible under his arm, and declared his readiness to abide the decision and sentence of the Court.” The judge cited Swain in contempt and jailed him, “there to remain until he would affirm, or should be otherwise discharged.” This episode was one of many that demonstrated the intense religious and moral convictions of Quakers and their resistance to slavery.
By contrast, many of those who sought slaves faced little challenge. The Evansville Tri-Weekly Journal reported that Thomas Hardy and John Smith, on trial in the Circuit Court of Gibson County for kidnapping, were acquitted of all charges. The judge’s ruling hinged only on a fugitive slave notice. This notice provided “sufficient authority for any person to arrest such fugitive and take him to his master.” As with the case involving Susan, the alleged slaves procured in this case received less legal protection than the two vigilantes that captured them. These trends continued well into the 1850s through the end of the Civil War.
Second, numerous articles and narratives concerning fugitive slaves and free persons claimed as fugitives were published during the antebellum period. The passage of the federal Fugitive Slave Act of 1850, of which Indiana kept its obligation to enforce, exacerbated coverage. Some articles were merely short notices, explaining that a certain number of alleged fugitive slaves were passing through a town or getting to a particular destination. The Evansville Daily Journalran a brief description in 1859 about two men “who had the appearance of escaped slaves, came upon the Evansville road, last night, and passed on to Indianapolis.” It was also reported that they “had a white adviser with them on the cars,” supposedly a “conductor” on the Underground Railroad. In another piece, the Journal wrote uncharitably about a “stampede of slaves” that:
. . . left their master’s roofs, escaped to the Licking river where they lashed together several canoes, and in disguise they rowed down the Licking river to the Ohio and crossed, where they disembarked and made a circuitous route to the northern part of Cincinnati.
After their travel to Cincinnati, the twenty-three fugitives began their route to Canada via the Underground Railroad.
Articles covering the arrest of fugitive slaves also filled the headlines. As an example, the New Albany Daily Ledger ran a piece in 1853 about two fugitive slaves captured in the basement of local Theological Seminary. Jerry Warner, a local, arrested them both and received $250 in compensation for their capture. The Evansville Daily Journalreported of the arrest of three fugitive slaves in Vincennes who were on their way to freedom in Canada. Two men, one from Evansville and another from Henderson, Kentucky, pursued and captured the fugitives nearly eight miles outside of the city. The fugitives defended themselves against capture, with one of them brandishing a pistol who “snapped it twice at the officer, but it missed fire.” The officers then transferred the fugitives to Evansville, who were supposedly returned to Henderson.
Conductors of the Underground Railroad also faced arrest for the aid of fugitive slaves. Another article from the Evansville Journal chronicled the arrest of a man known simply as “Brown” who aided four female slaves to an Underground Railroad stop at Petersburgh, Indiana. A US Marshal and a local Sheriff “charge[d] on the ‘worthy conductor,’ and he surrendered.” The officers returned Brown to the Henderson jail for processing. It was later discovered that he received $200 from a free African American for his last job. The Journal described Brown as a “notorious abolitionist, and if guilty of the thieving philanthropy with which he is charged, deserved punishment.” Indiana’s free state status did not lessen the prejudice against African Americans and abolitionists; it only obscured it.
One of the more elaborate, yet challenging methods fugitive slaves used to seek freedom involved shipping boxes. The Evansville Daily Journalreported of a fugitive slave captured aboard the steamer Portsmouth, a shipping vessel traveling from Nashville to Cincinnati. He was in the box, “doubled up like a jack-knife,” for five days before authorities discovered him and took the appropriate actions. The ship docked at Covington, Kentucky and they “placed the negro in jail to await the requisition of his owner.” It was learned later that the fugitive slave had an agreement with a widow to move to Ohio on condition that he work for her for a year. “He had fulfilled his part of the contract,” the Journal wrote, “and she was performing her stipulations, and would have enabled him to escape had it not been for the unlucky accident.” This story was also covered in the Terre Haute Daily Union and similar stories ran in later issues of the Journal, the Nashville Daily Patriot, and the Richmond Palladium.
Sadly, the ultimate risk for a fugitive slave was death, and Indiana newspapers chronicled these events as well. The Crawfordsville Weekly Journal published an article on August 16, 1855 detailing the death of a fugitive slave by drowning. It appeared to the authorities that the fugitive, resting near Sugar Creek in Crawfordsville, was discovered by a group of men and questioned about his status. Under pressure, the fugitive leaped into the water and tried to flee, which spurred one man to shoot off his gun in an attempt to stop him. As the Journal wrote, “this alarmed the negro, and he plunged beneath the waters, and continued to rise and then dive, until exhausted, and he sank to rise no more until life was extinct.” His body was discovered a few days later. While some deemed his death a mere drowning, others thought it more “suspicious.” The Journal continued:
Putting the most favorable construction on the circumstances, there was a reckless trifling with human life which nothing can justify. He was doubtless a fugitive, but they knew it not, and had no right to arrest him or threaten his life. They knew of no crime of which he had been guilty, and only suspected him of an earnest longing after that freedom for which the human heart ever pants; and because he acted upon this feeling, so natural and so strong, they threaten to tie and imprison, and when struggling with overwhelming waters, he is threatened with being shot if he does not return ; and then when strength and life were fast failing, stretched not forth a helping hand to save him from immediate death.
If the facts as stated be true, (of which we have no doubt,) there is high criminality, of which the laws of our country should take cognizance; and when the news of the negroe’s [sic] death shall have reached his owner, he will doubtless prosecute those men; it may be for murder in the second degree, or at least for the value of the slave.
The Journal eloquently elucidated why the application of fugitive slave laws, especially by vigilante citizens, harmed the civil rights and lives of both free people and those still in servitude (of which there were a mere few).
Free African Americans additionally faced threats to their lives and livelihood from the enforcement of fugitive slave laws. A well-known instance in Indiana regarded the arrest and release of John Freeman. Arrested and jailed on June 21, 1853, Freeman faced a charge from Pleasant Ellington of Missouri that he was one of his slaves. Freeman hired a legal team and after a lengthy trial that testified to his status as a free-born African American, he was released on August 27, 1853. It turned out that Ellington misidentified Freeman as a slave named Sam, who fled from servitude in Greenup County, Kentucky and likely escaped to Canada. Due to the diminution of his character, Freeman sued Ellington in civil court for 10,000; it was later ruled in favor of Freeman and he received $2,000 and additional unnamed damages. What Freeman experienced is but a snapshot into how fugitive slave laws harmed the rights of free people as well as slaves.
After the Civil War began, fugitive slaves continued to elicit concern, and coverage, in Indiana newspapers. In the spring of 1861, the Sentinel reprinted a piece from the Jeffersonville Democrat about the rise of fugitive slaves traveling through the Ohio River region: “the number of fugitive slaves caught on the Indiana side of the river, and returned to Kentucky within the past three months, is greater than that of any like period during the past ten years.” Kentucky’s government still offered a reward of $150 for each returned slave. That summer, the Indiana State Guardpublished President Abraham Lincoln’s thoughts on the issue. Lincoln, in a manner characteristic of his own political calculus, declared that Union soldiers were not “obliged to leave their legitimate military business to pursue and return fugitive slaves” but also cautioned that “the army is under no obligation to protect them, and will not encourage nor interfere with them in their flight.” The new President offered a nuanced position that possibly placated the Border States while satisfying the abolitionist wing of his own party. Realistically, it was a long way away from the Emancipation Proclamation.
The end of the Civil War brought the end of slavery as a federally-protected policy, and thus eliminated the need for fugitive slave laws. Their end brought a larger fulfillment of the Declaration of Independence’s commitment to the proposition that “all men are created equal.” Yet, the history of fugitive slaves often fell into tales of folklore and hyperbole. Looking at a primary source like newspapers helps to dispel many of the myths and provides nuance to the controversial subject of human enslavement in the United States. These stories represent a small fraction of the larger narrative about American slavery. To learn more, visit the Library of Congress’ page about fugitive slave ads in historical newspapers: https://www.loc.gov/rr/news/topics/fugitiveAds.html. You can also search Hoosier State Chronicles for more fugitive slave ads and articles.
Richmond Palladium and Sun-Telegram (Daily): January 1, 1912 – Mar 30, 1912, July 1, 1912 – September 30, 1912, October 1, 1913 – December 31, 1913, May 8, 1916, April 21, 1922-December 30, 1922
