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Five: The Wisconsin Supreme Court and the Fugitive Slave Act
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f i v e p The Wisconsin Supreme Court and the Fugitive Slave Act With the [Wisconsin] Supreme Court to sustain them these wild and frantic fanatics will now resist the execution of [Sherman Booth’s] sentence even to the taking of life and nothing short of an overpowering force will awe them into submission. —John Sharpstein, February , ON JANUARY , , Sherman Booth, John Ryecraft, the county sheriff, and about two thousand well-wishers marched to the train station along a path that, not coincidentally, took them past Judge Miller’s residence. As they passed his home, they sang “Jordan is a hard road to travel.”1 Booth and Ryecraft boarded the train to Madison for a hearing before the supreme court. Four days earlier, the sheriff had served U.S. marshal Stephen Ableman with a writ of habeas corpus. Federal officers wrung their hands, fully expecting the state supreme court to interpose itself in the U.S. district court’s proceedings, free the prisoners, and repeat its declaration that the Fugitive Slave Act of was unconstitutional. Marshal Ableman complied with the writ, but noted on his return that he did not recognize the authority of the state court. It was, of course, not the first time that Booth had called upon the Wisconsin Supreme Court to intercede. In all, he had sued for three writs of habeas corpus by January , . The court had sided with him on two occasions and had refused to intercede in one. This was a legal battle different from the criminal trials argued before juries, although it ran in par112 p The Rescue of Joshua Glover You are reading copyrighted material published by Ohio University Press/Swallow Press. Unauthorized posting, copying, or distributing of this work except as permitted under U.S. copyright law is illegal and injures the author and publisher. allel with them. In the criminal trials, antislavery lawyers had attempted to counter charges of riot and rescue while deploying a rhetoric that sought to legitimate the spontaneous assembly against a tyrannical government. Such arguments, though they might persuade a jury of laymen, carried little weight before the bench, where the issues were primarily legal and where the facts of Glover’s rescue and Booth’s actions ceased to be of major importance. Rhetorical crossover definitely occurred. Just as people justi- fied popular resistance with claims that the law was unconstitutional, so lawyers colored their arguments with sentiment and imagery. Lawyers appealed to the rights and duties of citizens in similar language before both the bench and the jury. Still, this was a highly technical legal argument made before judges. Although the Wisconsin Supreme Court would not make a claim to be the sole—or even the highest—expositor of the Constitution, it had already on one occasion presumed to declare a federal statute void. To justify this momentous act and its later intervention in federal court proceedings, the Wisconsin court needed to deploy a strong theory of law. Byron Paine suggested one when he argued a moderate antislavery jurisprudence indebted to Salmon P. Chase and Robert Rantoul. Paine’s argument put more weight on the duty of states—particularly the state judiciary—to intervene on the basis of the plenary police power reserved by the Tenth Amendment to the states. Against this, federal officers pleaded that the doctrine of comity of courts and settled practice forbade the states from interfering with federal process. They countered the arguments against the constitutionality of the Fugitive Slave Act by resorting to the convention that fugitive slave rendition was a constitutional duty mediated by Congress , accepted by the country, and upheld in the courts. The U.S. attorney argued that Wisconsin’s intercession amounted to a repudiation of the Constitution. Both arguments were, in their own ways, reasonable interpretations of the Constitution. They were also incompatible, and this incompatibility inaugurated a new phase in Wisconsin’s constitutional resistance to the Fugitive Slave Act. p The decision to test the Fugitive Slave Act’s constitutionality came shortly after the rescue. On May , , Booth had his bailsman surrender him to federal authorities. He immediately sued out a writ of habeas corpus The Wisconsin Supreme Court and the Fugitive Slave Act p 113 You are reading copyrighted material published by Ohio University Press/Swallow Press. Unauthorized posting, copying, or distributing of this work except as permitted under U.S. copyright law is illegal and injures the author and publisher. [3.145.196.87] Project MUSE (2024-04...
