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A boisterous public meeting condemned the capture, resolved “the slave catching law of 1850 disgraceful and … repealed,” and dispatched one hundred men to Milwaukee to secure Glover's release.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
