Ableman v. Booth; United States v. Booth

121 How. (62 U.S.) 506 (1859), argued 19 Jan. 1859, decided 7 Mar. 1859 by vote of 9 to 0; Taney for the Court. In the spring of 1854, Benjamin S. Garland, a slaveowner from Missouri, went to Wisconsin seeking to recapture a runaway slave. Joshua Glover had escaped two years earlier and found work in a mill outside Racine. The slaveowner invoked the Fugitive Slave Act of 1850 and filed a complaint before the United States commissioner in Milwaukee, who promptly issued a warrant for Glover's arrest. A deputy marshal, with the assistance of the slaveowner, forcibly entered Glover's cabin, knocked him down, and carried him off bound and handcuffed to the Milwaukee jail.

A boisterous public meeting condemned the capture, resolved “the slave catching law of 1850 disgraceful and … repealed,” and dispatched one hundred men to Milwaukee to secure Glover's release. In the meantime, Sherman M. Booth, an abolitionist and editor of an antislavery newspaper, obtained a writ of habeas corpus for Glover from a local county court judge. The federal marshal and the county sheriff refused to produce the prisoner on the theory that he was properly in federal custody and could not be released through a state court habeas proceeding. However, a crowd broke into the jail and rescued Glover, who was never recaptured. Soon thereafter, Booth and others were indicted and convicted for violating federal law by aiding and abetting the rescue.

This was the dramatic start of a long jurisdictional confrontation between state and federal authority. Federal prosecution of Booth produced repeated defiance by Wisconsin judges of federal authority, even that of the United States Supreme Court. At one point, the judges of the Wisconsin Supreme Court, in an attempt to forestall federal review, ordered their clerk to make no return to the writ of error issued by the United States Supreme Court and to enter no order in the case. Judges and legislators battled over state habeas corpus jurisdiction versus federal judicial authority. (See Judicial Power and Jurisdiction; Federalism.)

The conflict culminated with Chief Justice Roger B. Taney's unanimous opinion in the companion cases of Ableman v. Booth and United States v. Booth (1859), though his decision did not end the struggle. Taney condemned the Wisconsin Supreme Court's stance, arguing it “would subvert the very foundations of this Government” (p. 525). His opinion echoed the broad nationalism of famous decisions of John Marshall's era, such as McCulloch v. Maryland (1819). It is ironic that Ableman v. Booth's assertion of sweeping national power issued from the pen of a chief justice known for his strong states' rights views. Moreover, Taney's opinion in dictum expressed the unanimous view that the 1850 Fugitive Slave Act was “in all its provisions, fully authorized by the Constitution of the United States” (p. 526). When Booth was subsequently reindicted in a federal court in 1860, the Wisconsin Supreme Court still split evenly over whether Booth might be entitled to a writ of habeas corpus despite the mandate of the United States Supreme Court. The Wisconsin legislature condemned Taney's decision as “despotism” and called for “positive defiance” by the states. Only the Civil War settled the issue.

Perhaps because of its connection to slavery and to Taney, widely reviled for his Dred Scott opinion two years earlier, Ableman v. Booth is seldom invoked as precedent. Ableman v. Booth clearly established the lack of state judicial authority to issue writs of habeas corpus to remove someone from federal custody, yet the question was relitigated after the Civil War. Tarble's Case (1872) reached the same result and has become the standard citation for the supremacy of federal jurisdiction. Actually though, until Ableman v. Booth the law was not clear. A leading treatise on habeas corpus published in 1858 supported the position of the Wisconsin Supreme Court.

Many people considered Ableman v. Booth a frightening extension of Dred Scott. There were other contemporaneous conflicts over the authority of federal judges in the context of slavery, but antislavery forces saw Ableman v. Booth as the end of hope for constitutional argument against the Slave Power. The strong constitutional resistance expressed by the Wisconsin judges and the repeated calls by legislators and citizens of Wisconsin for forceful opposition provided a paradoxical mirror image of secessionist arguments advanced simultaneously in the South.

See also Fugitive Slaves; Slavery; State Sovereignty and States' Rights.

Bibliography

• Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (1975)

— Aviam Soifer

ADVERTISEMENT

Ableman v. Booth, 62 U.S. 506 (1859). In 1854, a United States deputy marshal, acting on behalf of the Missouri slave owner Benjamin S. Garland, seized Joshua Glover, a fugitive slave, living in Racine, Wisconsin, and took him to Milwaukee. The mayor of Racine quickly issued an arrest warrant for Garland, while abolitionists in Racine obtained a writ of habeas corpus from a county judge ordering U.S. Marshal Stephen V. Ableman to bring Glover before him. Before these could be served, the abolitionist activist and newspaper publisher Sherman Booth led a mob that rescued Glover, who soon disappeared, presumably going to Canada.

Marshal Ableman then arrested Booth and John Rycraft for violating the Fugitive Slave Law of 1850, but in In re Booth (1854), the Wisconsin Supreme Court released the men. Ableman then rearrested both men, who were subsequently convicted in federal court. However, in In re Booth and Rycraft (1854), the Wisconsin Supreme Court again issued a writ of habeas corpus, forcing Ableman to release Booth and Rycraft.

With Booth out of jail, Ableman turned to the U.S. Supreme Court, but the Wisconsin Supreme Court ignored the national court and refused to forward the record of the case to Washington. The case remained suspended until the Wisconsin Supreme Court published its opinions. The U.S. Supreme Court then used these opinions as the basis for overturning the state supreme court in Ableman v. Booth.

In a powerful opinion, Chief Justice Roger Taney condemned the Wisconsin court's actions, emphatically denying that any state courts could interfere with the federal courts. With some irony, Taney declared that the states' rights position of the Wisconsin court was "preposterous" and "new in the jurisprudence of the United States, as well as the States." Taney emphatically asserted national power and state subordination to the Constitution and to the Supreme Court, writing that each state is obligated "to support this Constitution. And no power is more clearly conferred than the power of this court to decide ultimately and finally, all cases arising under such Constitution and laws."

After the decision, Ableman once again arrested Booth, who was soon rescued from custody and remained at large for about two months, giving speeches in Wisconsin and challenging Ableman to arrest him. Ableman ultimately did arrest him, and he remained in jail for another six months, until President James Buchanan pardoned him in March 1861.

Bibliography

Finkelman, Paul. An Imperfect Union: Slavery, Federalism, and Comity. Chapel Hill: University of North Carolina Press, 1981.

Hyman Harold M., and William M. Wiecek. Equal Justice Under Law: Constitutional Development, 1835–1875. New York: Harper Collins, 1982.

—Paul Finkelman