Ableman v. Booth and United States v. Booth

The citation for this case is 62 US 506. The case was argued on 19 January 1859 and decided on 7 March 1859 by a 9-0 vote, with Chief Justice Roger B. Taney writing the Court’s opinion. The case came out of Benjamin Garland of Missouri going to Wisconsin to capture an escaped slave named Joshua Glover in the spring of 1854. Glover had escaped in 1852 and was working in a mill near Racine, Wisconsin. Garland, invoking the Fugitive Slave Law of 1850, went to the US commissioner in Milwaukee, and an arrest warrant was issued for Glover. A deputy US Marshal accompanied Garland to Glover’s cabin, where they entered and knocked down Glover, arresting him and taking him to jail. A public meeting denounced the capture and the Fugitive Slave Law, and about a hundred men set off to release Glover. “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.” [Aviam Soifer, “Ableman v. Booth; United States v. Booth,” in Kermit L. Hall, ed., The Oxford Guide to United States Supreme Court Decisions, p. 2] Wisconsin judges continued to resist the prosecution, and the justices of the Wisconsin Supreme Court even ordered its clerk to disregard the US Supreme Court in this matter.

The legal argument was “congress, in passing the fugitive slave law, ‘transcended its constitutional power and encroached upon a right that belongs solely to the states.’ It was not a new issue, raised for the first time by [Byron] Paine [Booth’s lawyer], but had been employed by many anti-slavery advocates and by the attorneys for Pennsylvania in the famous case of Prigg v. Pennsylvania in 1842. Paine, however, imparted to it new vitality. The discussion turned upon the interpretation of Article IV of the constitution, and especially the third clause of section 2 in that article which recites: ‘No person held to service or labor in one state, under the laws thereof, fleeing 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.’ … The reading of Article IV as a whole reveals, so Paine contended, that section 1 represents an agreement or compact among the states to respect one another’s records, and grants to the federal congress merely the power to make general laws about the manner of proving them. That section 3 contains definite grants of power to congress (a) to create new states, (b) to regulate territories. That section 4 binds all states to protect one another, through the federal government. In contrast, section 2, in each of its three clauses, grants no power to congress or to any other branch of the federal government. Neither does it withdraw any specific power from the states. It merely, says Paine, records the agreement of the states among themselves–their ‘compact,’ to use the legal term–on three points, namely: common rights of citizens, extradition of criminals, and rendition of fugitives from service or labor. Since, therefore, the provision regarding fugitive slaves was such a compact, the rendition of slaves depended absolutely upon the good faith of the states themselves in carrying out their agreement. The congress could not interfere because it had been granted no power to do so, nor was such power implied in any specific power which had been granted to congress. Slaveowners, in short, as the constitution makers intended, must rely upon the states for the recovery of their property and even so the provision they inserted was a concession to slaveowners because no such agreement among the states had existed under the confederation. Up to the time of the adoption of the constitution, a runaway slave, if he could manage to get into another state, was lost to the owner, except as interstate comity might mitigate such hardship.” [Joseph Schafer, “Stormy Days in Court–The Booth Case,” Wisconsin Magazine of History, Vol. XX, No. 1, September, 1936, pp. 93-95]

Chief Justice Taney wrote, “The first case, indeed, was reached for trial two terms ago. But as the two cases are different portions of the same prosecution for the same offence, they unavoidably, to some extent, involve the same principles of law, and it would hardly have been proper to hear and decide the first before the other was ready for hearing and decision. They have accordingly been argued together, by the Attorney General of the United States, at the present term. No counsel has in either case appeared for the defendant in error. But we have the pamphlet arguments filed and referred to by Booth in the first case, as hereinbefore mentioned, also the opinions and arguments of the Supreme Court of Wisconsin, and of the judges who compose it, in full, and are enabled, therefore, to see the grounds on which they rely to support their decisions. It will be seen from the foregoing statement of facts that a judge of the Supreme Court of the State of Wisconsin in the first of these cases, claimed and exercised the right to supervise and annul the proceedings of a commissioner of the United States, and to discharge a prisoner who had been committed by the commissioner for an offence against the laws of this Government, and that this exercise of power by the judge was afterwards sanctioned and affirmed by the Supreme Court of the State. In the second case, the State court has gone a step further, and claimed and exercised jurisdiction over the proceedings and judgment of a District Court of the United States, and, upon a summary and collateral proceeding by habeas corpus, has set aside and annulled its judgment and discharged a prisoner who had been tried and found guilty of an offence against the laws of the United States and sentenced to imprisonment by the District Court. And it further appears that the State court have not only claimed and exercised this jurisdiction, but have also determined that their decision is final and conclusive upon all the courts of the United States, and ordered their clerk to disregard and refuse obedience to the writ of error issued by this court, pursuant to the act of Congress of 1789, to bring here for examination and revision the judgment of the State court. These propositions are new in the jurisprudence of the United States, as well as of the States; and the supremacy of the State courts over the courts of the United States, in cases arising under the Constitution and laws of the United States, is now for the first time asserted and acted upon in the Supreme Court of a State.” [62 US 506, 513-514] Taney takes on this alleged supremacy of the state court: “If the judicial power exercised in this instance has been reserved to the States, no offence against the laws of the United States can be punished by their own courts without the permission and according to the judgment of the courts of the State in which the party happens to be imprisoned, for if the Supreme Court of Wisconsin possessed the power it has exercised in relation to offences against the act of Congress in question, it necessarily follows that they must have the same judicial authority in relation to any other law of the United States, and, consequently, their supervising and controlling power would embrace the whole criminal code of the United States, and extend to offences against our revenue laws, or any other law intended to guard the different departments of the General Government from fraud or violence. And it would embrace all crimes, from the highest to the lowest; including felonies, which are punished with death, as well as misdemeanors, which are punished by imprisonment. And, moreover, if the power is possessed by the Supreme Court of the State of Wisconsin, it must belong equally to every other State in the Union when the prisoner is within its territorial limits, and it is very certain that the State courts would not always agree in opinion, and it would often happen that an act which was admitted to be an offence, and justly punished, in one State would be regarded as innocent, and indeed as praiseworthy, in another. It would seem to be hardly necessary to do more than state the result to which these decisions of the State courts must inevitably lead. It is, of itself, a sufficient and conclusive answer, for no one will suppose that a Government which has now lasted nearly seventy years, enforcing its laws by its own tribunals and preserving the union of the States, could have lasted a single year, or fulfilled the high trusts committed to it, if offences against its laws could not have been punished without the consent of the State in which the culprit was found. The judges of the Supreme Court of Wisconsin do not distinctly state from what source they suppose they have derived this judicial power. There can be no such thing as judicial authority unless it is conferred by a Government or sovereignty, and if the judges and courts of Wisconsin possess the jurisdiction they claim, they must derive it either from the United States or the State. It certainly has not been conferred on them by the United States, and it is equally clear it was not in the power of the State to confer it, even if it had attempted to do so, for no State can authorize one of its judges or courts to exercise judicial power, by habeas corpus or otherwise, within the jurisdiction of another and independent Government. And although the State of Wisconsin is sovereign within its territorial limits to a certain extent, yet that sovereignty is limited and restricted by the Constitution of the United States. And the powers of the General Government, and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other within their respective spheres. And the sphere of action appropriated to the United States is as far beyond the reach of the judicial process issued by a State judge or a State court, as if the line of division was traced by landmarks and monuments visible to the eye. And the State of Wisconsin had no more power to authorize these proceedings of its judges and courts than it would have had if the prisoner had been confined in Michigan, or in any other State of the Union, for an offence against the laws of the State in which he was imprisoned.” [62 US 506, 514-516]

Taney spends several paragraphs discussing the Supremacy Clause and how the Federal Government is supreme over states within its sphere of jurisdiction. He also discusses how the judicial power of the United States is invested in the Supreme Court and the Federal Courts, and that the Federal Court system must be supreme over the state courts where the Federal Government is supreme because otherwise there would be numerous different decisions from the state courts depending on their own interests.

He continues, “These principles of constitutional law are confirmed and illustrated by the clause which confers legislative power upon Congress. That power is specifically given in article 1, section 8, paragraph 18, in the following words: ‘To make all laws which shall be necessary and proper to carry into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.’ Under this clause of the Constitution, it became the duty of Congress to pass such laws as were necessary and proper to carry into execution the powers vested in the judicial department. And in the performance of this duty, the First Congress, at its first session, passed the act of 1789, ch. 20, entitled ‘An act to establish the judicial courts of the United States.’ It will be remembered that many of the members of the Convention were also members of this Congress, and it cannot be supposed that they did not understand the meaning and intention of the great instrument which they had so anxiously and deliberately considered, clause by clause, and assisted to frame. And the law they passed to carry into execution the powers vested in the judicial department of the Government proves past doubt that their interpretation of the appellate powers conferred on this court was the same with that which we have now given, for, by the 25th section of the act of 1789, Congress authorized writs of error to be issued from this court to a State court whenever a right had been claimed under the Constitution or laws of the United States and the decision of the State court was against it. And to make this appellate power effectual and altogether independent of the action of State tribunals, this act further provides that, upon writs of error to a State court, instead of remanding the cause for a final decision in the State court, this court may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same and award execution. These provisions in the act of 1789 tell us, in language not to be mistaken, the great importance which the patriots and statement of the First Congress attached to this appellate power, and the foresight and care with which they guarded its free and independent exercise against interference or obstruction by States or State tribunals.” [62 US 506, 521-522] This was interesting because here Taney uses some of the same legal reasoning Abraham Lincoln used in favor of Congress being able to restrict the expansion of slavery from the territories, something which Taney argued against in his infamous Dred Scott decision. He argues, as Lincoln argued, the fact that many members of the Congress who passed certain legislation were members of the Constitutional Convention shows that legislation was in accordance with the will of the Framers. Lincoln did the same thing with the Northwest Ordinance that cut off slavery’s expansion into the Northwest Territory.

In concluding his opinion, Taney wrote, “In the case before the Supreme Court of Wisconsin, a right was claimed under the Constitution and laws of the United States, and the decision was against the right claimed, and it refuses obedience to the writ of error, and regards its own judgment as final. It has not only reversed and annulled the judgment of the District Court of the United States, but it has reversed and annulled the provisions of the Constitution itself, and the act of Congress of 1789, and made the superior and appellate tribunal the inferior and subordinate one. We do not question the authority of State court or judge who is authorized by the laws of the State to issue the writ of habeas corpus to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the application is made, that the person imprisoned is in custody under the authority of the United States. The court or judge has a right to inquire, in this mode of proceeding, for what cause and by what authority the prisoner is confined within the territorial limits of the State sovereignty. And it is the duty of the marshal or other person having the custody of the prisoner to make known to the judge or court, by a proper return, the authority by which he holds him in custody. This right to inquire by process of habeas corpus, and the duty of the officer to make a return, grows necessarily out of the complex character of our Government and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers and each within its sphere of action, prescribed by the Constitution of the United States, independent of the other. But, after the return is made and the State judge or court judicially apprized that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner is within the dominion and jurisdiction of another Government, and that neither the writ of habeas corpus nor any other process issued under State authority can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offence against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, their judicial tribunals can release him and afford him redress. And although, as we have said, it is the duty of the marshal or other person holding him to make known, by a proper return, the authority under which he detains him, it is at the same time imperatively his duty to obey the process of the United States, to hold the prisoner in custody under it, and to refuse obedience to the mandate or process of any other Government. And consequently it is his duty not to take the prisoner, nor suffer him to be taken, before a State judge or court upon a habeas corpus issued under State authority. No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him or to require him to be brought before them. And if the authority of a State, in the form of judicial process or otherwise, should attempt to control the marshal or other authorized officer or agent of the United States in any respect, in the custody of his 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. No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued, and an attempt to enforce it beyond these boundaries is nothing less than lawless violence. Nor is there anything in this supremacy of the General Government, or the jurisdiction of its judicial tribunals to awaken the jealousy or offend the natural and just pride of State sovereignty. Neither this Government nor the powers of which we are speaking were forced upon the States. The Constitution of the United States, with all the powers conferred by it on the General Government and surrendered by the States, was the voluntary act of the people of the several States, deliberately done for their own protection and safety against injustice from one another. And their anxiety to preserve it in full force, in all its powers, and to guard against resistance to or evasion of its authority on the part of a State is proved by the clause which requires that the members of the State Legislatures and all executive and judicial officers of the several States (as well as those of the General Government) shall be bound, by oath or affirmation, to support this Constitution. This is the last and closing clause of the Constitution, and inserted when the whole frame of Government, with the powers hereinbefore specified, had been adopted by the Convention, and it was in that form, and with these powers, that the Constitution was submitted to the people of the several States for their consideration and decision. Now, it certainly can be no humiliation to the citizen of a republic to yield a ready obedience to the laws as administered by the constituted authorities. On the contrary, it is among his first and highest duties as a citizen, because free government cannot exist without it. Nor can it be inconsistent with the dignity of a sovereign State to observe faithfully, and in the spirit of sincerity and truth, the compact into which it voluntarily entered when it became a State of this Union. On the contrary, the highest honor of sovereignty is untarnished faith. And certainly no faith could be more deliberately and solemnly pledged than that which every State has plighted to the other States to support the Constitution as it is, in all its provisions, until they shall be altered in the manner which the Constitution itself prescribes. In the emphatic language of the pledge required, it is to support this Constitution. And no power is more clearly conferred by the Constitution and laws of the United States than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws, and for that purpose to bring here for revision, by writ of error, the judgment of a State court, where such questions have arisen, and the right claimed under them denied by the highest judicial tribunal in the State.” [62 US 506, 522-525]

In reversing the Wisconsin Supreme Court’s ruling, Taney upheld the constitutionality of the Fugitive Slave Law and reasserted the supremacy of the Federal Government, Federal laws, and the Federal judiciary over the state equivalents within its sphere. “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. … 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.” [Aviam Soifer, “Ableman v. Booth; United States v. Booth,” in Kermit L. Hall, ed., The Oxford Guide to United States Supreme Court Decisions, p. 3]

Taney rejected all of Paine’s arguments, and that also meant that by extension he rejected a tenet advanced by Thomas Jefferson. “On the right of the state to question a federal law, or judicial decision, Paine held with Jefferson that ‘as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself as well of infractions as of the mode and  measure of redress,’–a doctrine which, ever since the Civil War, has been widely questioned as tending dangerously toward nullification. [Joseph Schafer, “Stormy Days in Court–The Booth Case,” Wisconsin Magazine of History, Vol. XX, No. 1, September, 1936, p. 97] Whether it was Taney’s intent or not, his decision knocked out one of the buttressing arguments of those who falsely make the laughable and non-credible contention that a state could unilaterally secede from the United States under the Constitution.


  1. Mike Musick · · Reply

    Al: I admire your ability to slog through the well-nigh impenetrable verbiage of this and other such court cases, presenting us with your conclusions. The statement in the first paragraph stating “Glover, invoking the Fugitive Slave Law of 1850….” is presumably a typo meaning Garland.

    1. Thanks, Mike. Yes, it is a typo. I fixed it. Thanks for catching it.

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