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1/ This month, we will be “live tweeting” the historic federal case of Ableman v. Booth, which culminated in an 1859 Supreme Court ruling that states cannot issue writs of habeas corpus against federal authorities.
2/ Ableman v. Booth raised important questions about judicial federalism in the context of the national debate over slavery in the 1850s. The case arose from the Fugitive Slave Act of 1850, an enormously controversial law.
3/ The Act allowed U.S. commissioners to arrest and return fugitive slaves without a jury trial or testimony of the accused. It was bitterly opposed and sometimes resisted in the north, where it was seen as an intrusion upon states’ rights to abolish slavery within their borders.
4/ At the crux of the Ableman case was the question: could state courts resist enforcement of the Fugitive Slave Act by issuing writs of habeas corpus to federal prisoners arrested under the Act?
5/ Our story begins on March 10, 1854. (Each day’s tweets will correspond to one day in the history of the case.)
6/ March 10, 1854: A group of men from the South, assisted by a U.S. deputy marshal, entered a shanty near Racine, Wisconsin, tonight, forcibly taking Joshua Glover, a fugitive slave who came to Wisconsin from the area of St. Louis, Missouri.
7/ March 10, 1854 (cont.): Glover, who was beaten with a club, has been taken to an unknown location. The citizens of Racine have gathered in protest, alleging that Glover has been kidnapped and calling the act “an outrage upon the peaceful rights of this community.”
8/ March 11, 1854: It has been discovered that Glover is being held in the county jail in Milwaukee. Milwaukee citizens have rushed to the jail to ensure that Glover is not secretly moved to another location.
9/ March 11, 1854 (cont.): Judge Andrew G. Miller of the U.S. District Court for the District of Wisconsin says that a warrant had been issued for Glover’s arrest and that the case will likely come before him. He hopes that there will be no unrest in the city.
10/ March 11, 1854 (cont.): Sherman Booth, editor of the Free Democrat, has demanded on behalf of Milwaukeeans that there be “a fair and open trial for this fugitive slave” and that Glover be permitted to have counsel.
11/ March 11, 1854 (cont.): A state court judge has issued a writ of habeas corpus for the release of Glover, but the Sheriff of Milwaukee County has refused to obey it on the grounds that Glover is a federal prisoner.
12/ March 11, 1854 (cont.): Led by Sherman Booth, approx. 5,000 people have gathered at the courthouse to protest on Glover’s behalf. A committee has drawn up a resolution urging Judge Miller to honor the writ of habeas corpus and hold an immediate hearing on Glover’s detention.
13/ March 11, 1854 (cont.): Judge Miller has refused to obey the writ of habeas corpus. An angry crowd has rushed the jail, broken down the door, and freed Glover. The sheriff and U.S. marshal have been unable to retake possession of Glover from the crowd.
14/ March 11, 1854 (cont.): Glover has reportedly escaped from the city of Milwaukee and is now in hiding. It is believed that he will flee to Canada. Booth has denounced Judge Miller’s refusal to obey the writ of habeas corpus as “damnable.”
15/ March 15, 1854: Sherman Booth was arrested today on a warrant issued by U.S. Commissioner Winfield Smith. The charge is “aiding and abetting” Joshua Glover’s escape from custody.
16/ March 21, 1854: A federal court hearing was held today at which the government tried to establish that Booth had incited the crowd that freed Glover. Booth expressed joy at Glover’s rescue but denied the charge. He is free on $2000 bail.
17/ March 21, 1854 (cont.): At the hearing, Booth proclaimed that rather than have “the right of trial by jury stricken down by the Fugitive law, I would prefer to see every Federal Officer in Wisconsin hanged on a gallows fifty cubits higher than Haman’s.”
18/ May 26, 1854: Sherman Booth, who was free on bail after being charged with aiding and abetting a slave’s escape, has voluntarily surrendered to U.S. Marshal Stephen Ableman and has been placed in jail.
19/ May 27, 1854: Booth has applied to Justice Abram Smith of the Wisconsin Supreme Court for a writ of habeas corpus. He has been released on the writ with a trial slated for May 29.
20/ May 29, 1854: Booth was tried today before Justice Smith. His counsel argued that he could not be punished to enforce the Fugitive Slave Act because that law is unconstitutional. Booth will remain free until a decision is rendered.
21/ June 7, 1854: Justice Smith has released his decision. He has ordered that Booth be freed from custody. The justice based his decision on his finding that the Fugitive Slave Act is unconstitutional because it deprives persons of liberty without “due process of law.”
22/ June 7, 1854 (cont.): U.S. Marshal Ableman will appeal Justice Smith’s decision to the full Wisconsin Supreme Court.
23/ July 19, 1854: The Wisconsin Supreme Court has unanimously affirmed Justice Smith’s decision to release Booth. Chief Justice Edward Whiton agreed with Smith that the 1850 Act is unconstitutional, while Justice Samuel Crawford dissented as to that finding.
24/ July 20, 1854: Booth, who was indicted by a federal grand jury on July 11, was rearrested today. The clerk would not accept bail from his previous bailor on the grounds that he had later surrendered Booth to custody so that Booth could seek a writ of habeas corpus.
25/ July 20, 1854 (cont.): Booth therefore remains in jail and will immediately seek a writ of habeas corpus from the state supreme court.
26/ July 26, 1854: The state supreme court has denied Booth’s application for a writ of habeas corpus.
27/ July 26, 1854 (cont.): When the court ruled in Booth’s favor a week ago, he was held by a U.S. commissioner. The court ruled then that the Fugitive Slave Act’s delegation of authority to commissioners to decide cases under the Act was unconstitutional.
28/ July 26, 1854 (cont.): This time, Booth is held under authority of the federal court, which has exclusive jurisdiction of the case such that a state court cannot interfere.
29/ September 11, 1854: U.S. Attorney General Caleb Cushing has decided that the federal government will appeal to the Supreme Court of the United States, seeking to have the July 19 decision of the Wisconsin Supreme Court regarding the Fugitive Slave Act overturned.
30/ January 13, 1855: A jury in the U.S. District Court for the District of Wisconsin has convicted Sherman Booth of aiding and abetting the escape of fugitive slave Joshua Glover. Judge Miller had admonished the jury not to commit “moral perjury” by disregarding the law.
31/ January 23, 1855: U.S. District Judge Andrew Miller has sentenced Booth to one month in jail and a fine of $1,000.
32/ January 30, 1855: The Wisconsin Supreme Court on Jan. 27 issued a writ of habeas corpus ordering Booth to be brought before the court. A jubilant crowd gathered today at the jail to escort Booth and co-defendant John Ryecraft to the train depot on their way to Madison.
33/ February 3, 1855: The Wisconsin Supreme Court has voted unanimously to release Booth, asserting the court’s power to release a prisoner from federal custody. The court ruled that the counts of the indictment for which Booth was convicted did not allege a federal crime.
34/ February 3, 1855: Judge Miller has called the decision “the effective abrogation of the laws and authority of the United States.” A New York paper calls it “utter subversion of the powers of the Federal Judiciary.”
35/ April 21, 1855: The Attorney General of the U.S. has petitioned the Supreme Court of the U.S. to issue a writ of error to the Wisconsin Supreme Court, ordering that the Booth case be brought before it for review.
36/ July 1855: The Wisconsin Supreme Court has refused to recognize the jurisdiction of the Supreme Court of the U.S. in the Booth case. The state court has failed to make a return of the writ of error or to send the record of the case.
37/ May 1856: Chief Justice Taney has ordered the clerk of the Wisconsin Supreme Court to make a return of the writ of error or to show cause for failure to do so. Taney also ordered that the two Booth cases be argued together.
38/ March 1857: The Wisconsin Supreme Court having made in February a formal refusal to comply with the order of the Supreme Court of the U.S., Chief Justice Taney has ordered that a copy of the record earlier obtained by the district attorney be sent to the Court.
39/ March 1857 (cont.): Taney has also ordered that the cases be argued at the Court’s next term.
40/ January 19, 1859: After a long delay, the case of Ableman v. Booth was finally argued before the Supreme Court of the United States today.
41/ March 7, 1859: The Supreme Court issued its opinion in Ableman v. Booth today. The opinion was written by Chief Justice Taney. The Court has reversed both decisions of the Wisconsin Supreme Court.
42/ March 7, 1859 (cont.): The Court has ruled that state courts may not issue writs of habeas corpus in cases where a prisoner is held by the federal government.
43/ March 7, 1859 (cont.): Taney writes that if the actions of the Wisconsin Supreme Court were permitted, the federal government could not enforce any of its criminal laws without the permission of the states.
44/ March 7, 1859 (cont.): The federal government has not conferred judicial power on the state of Wisconsin to interfere with the decision of a federal court, and the state cannot confer upon itself the power to interfere with the judgment of another government.
45/ March 7, 1859 (cont.): Taney further writes that the Constitution and laws of the U.S. are the supreme law of the land, and such supremacy cannot be maintained without “judicial power equally paramount in authority to carry it into execution.”
46/ March 7, 1859 (cont.): A U.S. marshal receiving a writ of habeas corpus from a state court should reply that the prisoner is held under federal authority. If the state persists, it is the marshal’s “duty to resist it, and to call to his aid any force that might be necessary.”
47/ March 1, 1860: On the order of U.S. District Judge Miller, Booth has been rearrested and imprisoned in the federal custom house in Milwaukee to serve the remainder of his sentence.
48/ March 23, 1860: After the Wisconsin Supreme Court earlier refused to grant Booth another writ of habeas corpus, Booth’s sentence expired today. However, he remains in custody for refusal to pay his fine.
49/ August 1, 1860: After the Wisconsin Supreme Court again refused to grant Booth habeas corpus, a group of men carried out a forcible rescue today, delivering Booth to the protection of the state prison commissioner in Waupun, Wisconsin.
50/ October 8, 1860: After federal authorities made several attempts to recapture Booth over the last few months, all of which were thwarted by armed resistance from his supporters, Booth was finally captured and returned to the Milwaukee custom house today.