Posted on 08/27/2003 8:39:57 PM PDT by quietolong
The Booth Case
3 Wis. 1 (1854)
What has become known as the Booth case is actually a series of decisions from the Wisconsin Supreme Court beginning in 1854 and one from the U.S. Supreme Court, Ableman v. Booth, 62 U.S. 514 (1859), leading to a final published decision by the Wisconsin Supreme Court in Ableman v. Booth, 11 Wis. 501 (1859). These decisions reflect Wisconsin's attempted nullification of the federal fugitive slave law, the expansion of the state's rights movement and Wisconsin's defiance of federal judicial authority. The Wisconsin Supreme Court in Booth unanimously declared the Fugitive Slave Act (which required northern states to return runaway slaves to their masters) unconstitutional. The U.S. Supreme Court overturned that decision but the Wisconsin Supreme Court refused to file the U.S. Court's mandate upholding the fugitive slave law. That mandate has never been filed.
When the U.S. Constitution was drafted, slavery existed in this country. Article IV, Section 2 provided as follows:
No person held to service or labor in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.
Based on this provision, Congress in 1793 passed a law that permitted the owner of any runaway slave to arrest him, take him before a judge of either the federal or state courts and prove by oral testimony or by affidavit that the person arrested owed service to the claimant under the laws of the state from which he had escaped; if the judge found the evidence to be sufficient, the slave owner could bring the fugitive back to the state from which he had escaped. The law also set a penalty of $500 for obstructing its execution or concealing a known fugitive slave.
The law remained intact until 1850, by which time the moral sentiment of the North against slavery had become aroused; the Liberty Party had been organized, the underground railroad had flourished and northern men and women refused to act as slave catchers or assist in perpetuating slavery. As northern sentiment against slavery grew, the sentiment in the South in favor of the "divine institution" became more determined.
Because of the increasing difficulty the slave holders faced in reclaiming runaway slaves, Congress passed the Fugitive Slave Act of 1850. The law placed the mechanism for capturing runaway slaves in the hands of federal officers. It provided that these cases would be heard by a federal judge or court commissioner and allowed the slave owner to prove the debt owed by the slave but precluded testimony from the fugitive entirely. The new law also increased the penalties for resistance and for concealment of fugitives.
Although it was intended as a compromise, the new law actually fueled the flames of anti-slavery sentiment and from 1854 to 1861, Wisconsin politics was dominated by the question of whether the state had to defer to the federal government's efforts to enforce the Fugitive Slave Act.
In the spring of 1852, a slave named Joshua Glover escaped from a Missouri plantation and made his way to Racine, where he found work at a sawmill. Two years later, his owner, Bennami Garland, tracked him down and had him apprehended by federal marshals under the Fugitive Slave Act. Glover was held in the Milwaukee County Jail pending a hearing.
When Sherman M. Booth, editor of the Milwaukee abolitionist newspaper, The Free Democrat, heard of the capture, he mounted his horse and galloped through the streets of Milwaukee shouting: "Freemen! To the rescue! Slave catchers are in our midst! Be at the courthouse at 2:00!" Booth sought counsel from James H. Paine and his 27-year-old son, Byron, both Milwaukee lawyers, on legal measures that could be taken to free Glover. The lawyers persuaded a Milwaukee County Court judge to issue a writ of habeas corpus directing the U.S. marshal to bring Glover before the county judge and justify his detention.
Before the hearing could take place, Booth appointed a committee to prevent the "kidnapping" of Glover by the federal authorities. After Booth made a fiery speech, a mob led by one of the other committeemen, John Ryecraft, battered down the jail doors, freed Glover and spirited him away to Canada.
The federal authorities filed complaints against Booth charging him with unlawfully assisting Glover's escape. Booth was released on bail but two months later, at his own request, the bondsman delivered him to the U.S. Marshal requesting that he be detained. Booth's voluntary surrender was calculated to bring a test case challenging the constitutionality of the fugitive slave law in state court. On the day after the surrender, Booth's attorney, Byron Paine, successfully applied to Wisconsin Supreme Court Justice Abram D. Smith for a writ of habeas corpus.
At that hearing, Smith asked the parties to address the constitutionality of the fugitive slave law. Paine, citing Thomas Jefferson's writings, asserted that the states possessed the right to impose their authority where their sovereign rights are violated by the federal government. Paine argued that Congress had no authority to make laws based on Section 2, Article IV (the Fugitive Slave Clause of the Constitution) and that the Act of 1850 was unconstitutional because it denied a trial by jury and vested judicial powers in court commissioners.
On June 7, 1854, Smith ordered that Booth be released. Justice Smith not only found the warrant of commitment defective, but then also adopted Payne's points and declared the fugitive slave law unconstitutional. In Re: Booth, 3 Wis. 1 (1854).
When United States Attorney General Kaleb Kushing in Washington D.C. was informed of Booth's release, he directed U.S. Attorney Sharpstein to petition the Wisconsin Supreme Court for a full court certiorari review of Justice Smith's decision. With the approval of President Franklin Pierce, Sharpstein retained an eminent Wisconsin lawyer, Edward G. Ryan (later to become Chief Justice of the Wisconsin Supreme Court), to assist him in the argument before the full state court and also to help prosecute Booth and Glover's other rescuers in federal court.
When the case of Ableman v. Booth was heard before the full Wisconsin Supreme Court in late June of 1854, Attorney Payne made substantially the same arguments he had made before Justice Smith. U.S. Attorney Sharpstein and Attorney Ryan on the other hand, citing grounds of comity, the primacy of the federal judiciary in cases involving the federal constitution and laws, and the lack of power in both federal and state courts to discharge each other's prisoners upon habeas corpus, insisted that the acts of the federal court commissioners were acts of the federal court and that the jurisdiction of the federal court could not be ousted. Sharpstein asserted that Booth's writ of commitment contained "mere formal inaccuracies" which did not entitle Booth to habeas corpus; Sharpstein also vigorously defended the constitutionality of the fugitive slave laws of 1793 and 1850.
Finding the writ of commitment defective because it did not precisely state that Booth had aided a "fugitive from labor" to escape from custody, the Wisconsin Supreme Court on July 19, 1854, unanimously affirmed Justice Smith's earlier decision releasing Booth. In separate opinions, Chief Justice Edward V. Whiton and Justice Smith declared the 1850 law unconstitutional while Justice Samuel Crawford, although finding Booth's writ of commitment to be invalid, concluded the fugitive slave law was constitutional. Ableman v. Booth, 3 Wis. 49 (1854). (Justice Crawford took the unpopular position that the laws of the United States and the judgments of the federal courts within their proper jurisdiction were supreme and could not be set aside by state courts. His opinion in the Booth case contributed significantly to his defeat when he ran for reelection to the Wisconsin Supreme Court in April, 1855; his successful opponent in that election was Orasmus Cole.).
U.S. Attorney Sharpstein urged U.S. Attorney General Kushing to appeal the decision of the Wisconsin Supreme Court to the U.S. Supreme Court on writ of error. While that request was being considered, the U.S. Federal District Court convened in Milwaukee and a grand jury returned indictments against both Booth and John Ryecraft for aiding, assisting and abetting the escape of Glover. Booth again applied to the Wisconsin Supreme Court for another writ of habeas corpus. This time, however, the Wisconsin Supreme Court unanimously denied the writ on the ground that jurisdiction had now attached to the federal court and could not be interfered with by state process before a judgment was rendered in the federal court. Ex parte Booth, 3 Wis. 134 (1854). The court applied the familiar rule of comity which provides that when jurisdiction of a matter has been acquired by one court, another court of concurrent jurisdiction will not interfere.
Both Booth and Ryecraft were then tried in federal court, found guilty, and sentenced to short terms of imprisonment in the county jail and ordered to pay fines of $1,000. The Wisconsin Supreme Court then issued writs of habeas corpus after the court concluded that on habeas corpus review it could address the question of the jurisdiction of the federal court and could discharge prisoners, even when the federal court had tried the case and passed judgment upon them. In Re: Booth and Ryecraft, 3 Wis. 157 (1855).
In the meantime, U.S. Attorney General Kushing had decided to appeal the Wisconsin decisions by writ of error to the United States Supreme Court. Two writs of error were subsequently issued by U.S. Supreme Court Chief Justice Roger Taney directing the clerk of the Wisconsin Supreme Court to make a return of the record in both the 1854 case of Ableman v. Booth, and the 1855 case of In Re: Booth and Ryecraft. A return was made to the first writ of error without objection; however, when the second writ was issued and served in June of 1855, the justices of the Wisconsin Supreme Court directed the clerk to make no return to the writ. The Wisconsin justices asserted that no writ of error could run from the U.S. Supreme Court to the supreme court of a state, and that the federal Judiciary Act of 1789 purporting to authorize such a proceeding was unconstitutional.
The court's action in refusing to make a return to the writ of error issued by the U.S. Supreme Court was tantamount to judicial nullification of § 25 of the 1789 federal act which by that time had served as the basis for federal review of almost 200 cases, including one from Wisconsin (Walworth v. Kneeland, 15 How. 348 (1853)). This refusal to make a return to the writ of error was also inconsistent with the Wisconsin Supreme Court's earlier action in 1854 when it had assented to a writ of error in the Ableman v. Booth case; it was also inconsistent with Wisconsin Supreme Court Chief Justice Edward Whiton's acknowledgment in his original opinion in that case, that the decisions of the federal supreme court were final and conclusive upon all state courts.
The Wisconsin Supreme Court's refusal to return the record in obedience to the writ of error issued by the U.S. Supreme Court did not prevent the consideration of the case by the U.S. Supreme Court, but it did delay it. In the meantime, Jeremiah S. Black became the new Attorney General of the United States when President Buchanan took over from President Pierce. When it became apparent that no official return would be made to the writ of error, the U.S. Supreme Court ordered that a certified copy that Black had obtained would be sufficient. The two cases were then argued together before the U.S. Supreme Court in January of 1859.
U.S. Attorney General Black argued the case for the United States but no counsel appeared on the other side. However, Booth had sent to the U.S. Supreme Court a pamphlet containing a copy of the argument Byron Payne had made in the Wisconsin Supreme Court, along with copies of the opinions issued by the Wisconsin Supreme Court in the Booth matter.
On March 7, 1859, Chief Justice Taney, speaking for a unanimous U.S. Supreme Court, reversed both Wisconsin decisions. Ableman v. Booth and U.S. v. Booth, 21 How. 506 (1859). Chief Justice Taney vigorously insisted on the constitutionality and necessity of the U.S. Supreme Court's appellate jurisdiction; his opinion for the U.S. Supreme Court denied the power of state judges and courts to interfere by habeas corpus before or after trial to defeat the jurisdiction of federal tribunals. In addition, the U.S. Supreme Court pronounced the Fugitive Slave Act to be constitutional. The opinion also prescribed the course to be followed by federal marshals when confronted with state writs of habeas corpus: Chief Justice Taney explained that if a state by use of judicial process or otherwise, should attempt to deprive the U.S. Marshal of custody of a federal prisoner, "it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference."
Angered by that opinion and unwilling to accept the logic of Chief Justice Taney who had written the infamous Dredd Scott case, the Wisconsin legislature passed a series of resolutions denouncing the actions of the U.S. Supreme Court as "an arbitrary act of power ... without authority, void and of no force," and urging "positive defiance" by the states as the "rightful remedy."
Only a month after the U.S. Supreme Court issued its opinion in the Booth matter, Byron Payne was elected to succeed Justice Smith on the Wisconsin Supreme Court. That election was seen as a referendum on the state's rights position advocated by Payne in his representation of Booth and an approval by the state electorate of the idea that the state could and should nullify and defy a law of the United States--even one which the federal courts had pronounced constitutional and valid--provided such law was thought by the courts of the state to be unconstitutional.
Coincidentally, only a short time after that election, on April 12, 1859, Chief Justice Winton died. Governor Randall appointed 34 year old Luther S. Dixon to fill the vacancy. Thus, Byron Payne, who was then only 32, and Dixon took seats upon the Wisconsin Supreme Court on the same day.
Those two new and young Wisconsin Supreme Court Justices, along with Justice Orasmus Cole, were soon confronted with a request to file the U.S. Supreme Court's mandates reversing the judgments and dismissals in the Booth cases. Justice Payne recused himself because he had been Booth's lawyer. Thus, the issue of determining whether the U.S. Supreme Court's mandates in the Booth case should be filed in this state fell to Chief Justice Dixon and Justice Cole. Justice Cole, reaffirming his earlier view that the federal court had no power to review the judgments of the state supreme court, voted not to file the mandates in the Booth cases. That meant that the mandates would not be filed no matter how Justice Dixon voted because even if Justice Dixon thought the mandates should be filed, there would be an equal division of the two justices participating and consequently, no affirmative action could be taken. However, Chief Justice Dixon, displaying political courage, voted to file the U.S. Supreme Court mandates and issued a formal opinion explaining his reasoning. Ableman v. Booth, 11 Wis. 501 (1859). Although he personally agreed that the Fugitive Slave Act was unconstitutional, Chief Justice Dixon admonished the state's rights advocates that in their desire to strike a blow at slavery, they should not cripple the rule of law. Chief Justice Dixon exposed the flaw of the state's rights position when he wrote:
[The state's rights position] would place it in the power of any one state, beyond all peaceful remedy, to arrest the execution of the laws of the entire union, and to break down and destroy at pleasure every barrier created and right given by the constitution ... [even] if it be granted that both Congress and the Supreme Court have improperly discharged the high trusts reposed in them by the American people, it has no tendency to prove or disprove the existence of this power. Ableman v. Booth, 11 Wis. at 513.
By issuing that opinion, Chief Justice Dixon almost guaranteed that when he came up for election in 1860, he would have opposition. State's rights advocates nominated Andrew Scott Sloan (who later became the Wisconsin Attorney General who successfully prosecuted the railroad cases in 1874) to run against him. The April 1860 election was very close with Dixon succeeding but with only a 395 vote margin.
In the meantime, Booth was still involved in legal difficulties. In May of 1859, he was accused of "seduction" by a 14 year old girl. He was prosecuted on that charge by Attorney Edward G. Ryan (later Chief Justice Ryan); that trial, however, resulted in a hung jury. In addition, Booth had still not paid his fine nor served the jail time imposed following his convictions in federal court. D.A.J. Upham, the U.S. Attorney in Milwaukee who had replaced John Sharpstein when the Buchanan administration took over, had asked the Wisconsin Supreme Court to file the U.S. Supreme Court's mandates in the Booth matter; after that was refused, he filed a motion in federal court in Milwaukee asking Judge Miller to order the re-arrest of Booth. Booth was then re-arrested and placed in federal custody in Milwaukee on March 1, 1860. Another petition for habeas corpus was filed in the Wisconsin Supreme Court, but an evenly divided court then refused to grant it. Ableman v. Booth, 11 Wis. 517 (1859) at 555-558. Booth's short term of imprisonment thereafter expired but he remained confined in the federal custom house in Milwaukee because he refused to pay his fines. Requests that his fines be remitted or that he be pardoned were rejected by President Buchanan and U.S. Attorney General Black.
After eight unsuccessful attempts to free Booth, on August 1, 1860 several armed men forcibly rescued Booth from the federal custom house in Milwaukee and took him to Waupun where the State Prison Commissioner, Hans Heg (whose statue commemorating Heg's heroism and death in the Civil War now stands at the Main-Pinckney Street entrance to the State Capitol) gave him protection. Booth continued to speak out in support of state's rights position at numerous political meetings in the area. Finally, on October 8, 1860, Booth was recaptured by federal marshals at a meeting at Berlin, Wisconsin and again taken back to the custom house at Milwaukee. After Abraham Lincoln's election to the presidency but before he was inaugurated, Booth again applied to President Buchanan for a pardon. This request was vigorously opposed by U.S. Attorney General Black who asserted "the fact that in all this criminal folly and insolence, he [Booth] has been aided, comforted and abetted by a state court and by other lawless persons who pretend to justify him, makes the vindication of the law in this particular case absolutely necessary by way of example."
In his fourth annual message to Congress on December 3, 1860, President Buchanan stated that the universal judicial acceptance of the constitutionality of the Fugitive Slave Act of 1850 was marred only by the defection of the Wisconsin Supreme Court. That decision, however, President Buchanan continued, "has not only been reversed by the proper appellate tribunal, but has met with such universal reprobation that there can no longer be danger from it as a precedent."
On the day before President Lincoln's inauguration, outgoing President Buchanan pardoned Booth. 1
Sources
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Winslow, The Story of a Great Court (1912).
Beitzinger, "Federal Law Enforcement and the Booth Cases," 41 Marquette Law Review 7 (1957).
Ranney, "Molders and Shapers of Wisconsin Law;" Wisconsin Lawyer, March, 1993.
Endnotes
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1- In a eulogy for Paine, Ryan recalled this case:
The first opportunity I had of forming an estimate of his high ability, was in the famous case under the fugitive slave act, in 1854 and 1855. He was employed for the defendant; I, for the United States. We both brought to the case, not only ordinary professional zeal, but all the prejudices of all our lives. He was a frank and manly abolitionist. I was as decidedly what was called pro-slavery. We were both thoroughly in earnestI thought him a fanatic. He probably thought me one. Possibly we both were.
This is not the first time a federal order has been defied.
To this day the order has not been filed.
One other interesting case
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