State Documents on Federal Relations/148

148. Wisconsin Defies the Federal Courts.

March 19, 1859.

On the eve of the Civil War, the State of Wisconsin, through her courts, her legislature and the action of her citizens, attempted to practically nullify the Fugitive Slave Law and obstruct the enforcement of the judgments of the Federal Courts. The facts are as follows: Sherman M. Booth, the editor of The Wisconsin Free Democrat, was held to trial before the United States District Court, on the charge of having aided in the forcible rescue of a fugitive slave, Joshua Glover, at Milwaukee, March 11, 1854. Before the session of the Court, Booth applied to Judge A. D. Smith, of the State Supreme Court, for a writ of habeas corpus. Smith took a pronounced state rights view and discharged Booth on the ground that the Fugitive Slave Law was "unconstitutional and void." The decision was affirmed by the Wisconsin Supreme Court. (3 Wisconsin Reports, 1–135.) In course of time Booth was indicted by the United States District Court, and in Jan., 1855, tried and convicted. The news of his conviction excited great indignation throughout the State, meetings were held in various places and resolutions condemning the Fugitive Slave Law and demanding the enactment of a personal liberty law, and even threatening resistance, were adopted. Again the State Supreme Court released Booth on a writ of habeas corpus. On application, Chief Justice Taney issued a writ of error commanding the State Court to make return of its judgment and proceedings for review by Dec., 1855, but the State Court disregarded it. Finally, in March, 1857, the United States Supreme Court assumed jurisdiction in the case by procuring certified copies of the proceedings, and at the December term, 1858, reviewed and reversed the decision of the Supreme Court of Wisconsin. (Ableman vs. Booth, 21 Howard, 506.)

As a result of the Glover affair the Legislature of Wisconsin had passed in 1857 a personal liberty law (Laws of Wis., 1857, 12), and in view of the recent decision of the Federal Court, they adopted, March 19, 1859, the subjoined protest and declaration of defiance, based on extreme state sovereignty ground. (Vote in the Assembly, 47 to 37; in the Senate, 13 to 12. Laws of Wis., 1859, 247, 248.) The voters followed this up the same year by electing Booth's attorney, Byron Paine, to the State Supreme Court on the state rights and anti-slavery issue. Although the State Courts refused to enforce the judgment, Booth was re-arrested by a United States Marshal, March 1, 1860. On August 1, he was rescued, but re-arrested, Oct. 8, and finally pardoned by Pres. Buchanan near the close of his administration.

References: See especially, Vroman Mason, The Fugitive Slave Law in Wisconsin, with Reference to Nullification Sentiment, Proc. of State Hist. Soc. of Wis., 1895, 117–144; Tyler, Life of R. B. Taney, 392–400; Thwaites, Story of Wisconsin, 247–254; Siebert, Underground Railroad, 327–330; Wilson, II, 444–446.

Whereas, The Supreme Court of the United States has assumed appellate jurisdiction in the matter of the petition of Sherman M. Booth for a writ of habeas corpus, presented and prosecuted to final judgment in the Supreme Court of this State, and has, without process, or any of the forms recognized by law, assumed the power to reverse that judgment in a matter involving the personal liberty of the citizen, asserted by and adjusted to him by the regular course of judicial proceedings upon the great writ of liberty secured to the people of each State by the Constitution of the United States:

And, whereas, Such assumption of power and authority by the Supreme Court of the United States, to become the final arbiter of the liberty of the citizen, and to override and nullify the judgments of the state courts' declaration thereof, is in a direct conflict with that provision of the Constitution of the United States which secures to the people the benefits of the writ of habeas corpus: therefore,

Resolved, The Senate concurring, That we regard the action of the Supreme Court of the United States, in assuming jurisdiction in the case before mentioned, as an arbitrary act of power, unauthorized by the Constitution, and virtually superseding the benefit of the writ of habeas corpus and prostrating the rights and liberties of the people at the foot of unlimited power.

Resolved, That this assumption of jurisdiction by the federal judiciary, in the said case, and without process, is an act of undelegated power, and therefore without authority, void, and of no force.

Resolved, That the government, formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself; but 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.[1]

Resolved, That the principle and construction contended for by the party which now rules in the councils of the nation, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism, since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers; that the several states which formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a positive defiance of those sovereignties, of all unauthorized acts done or attempted to be done under color of that instrument, is the rightful remedy.

[General Laws of Wisconsin, 1859, 247, 248.]