Ableman’s Shadow: State Struggles over Habeas Corpus
The first in a series on early battles between the states and the federal government, Mosvick reviews one of the Taney court’s overlooked decisions.
Today, the predominance of the federal court system is so strongly presumed that students never learn its creation story. That is, the typical Civil Procedure course in law school starts (as did my own) after 1875 with Pennoyer v. Neff (1878) 1 to establish the principle for personal jurisdiction. Outside of Tyson v. Swift (1842) 2 and Erie Railroad Co. v. Tompkins (1938)–which overruled Tyson’s claim of power to create general federal common law when hearing state law claims–there is a tendency to briskly move students right along into the 20th century. In so doing, Civil Procedure courses generally ignore the robust powers of the state courts that existed for nearly a century before the tumultuous events of the American Civil War. That narrative overlooks the significance of Ableman v. Booth (1859), a unanimous Supreme Court’s which appeared to foreclose the power of state courts to review federal law upon writs of habeas corpus against federal officials. Ableman grew out of attempts by Northern abolitionists and state courts to thwart the Fugitive Slave Act of 1850 which brought federal commissioners into localities to enforce the support of citizens in returning fugitive slaves to their masters. The Civil War altered the debate by creating questions of who could suspend habeas corpus, what courts could review the pronouncements of military commissions and law, and ultimately, which institutions could settle questions of constitutionality regarding the Lincoln administration’s war measures. This series on Habeas Corpus during the Civil War period will focus on the way state courts attempted to understand the rule of Ableman.
Scholars have most especially overlooked state court battles over the right to review writs of habeas corpus based in claims under federal law or against federal officers during the Civil War. In large part, though, this neglect is because the issue was made moot so soon after the War. Both the 1867 Habeas Corpus Act and the Supreme Court’s decision in Tarble’s Case (1871) 3 foreclosed the jurisdiction of state courts over habeas writs based in federal claims, a fact confirmed still further in 1875 by the Jurisdiction and Removal Act. However, in the antebellum, state courts like Wisconsin’s in In Re Booth (1854) 4 claimed both the right of jurisdiction and the power to strike down federal acts as unconstitutional under habeas claims, at least within their own state jurisdictions. Booth arose out of the controversy over the Fugitive Slave Act of 1850 and Northern personal liberty laws and attempts to nullify the Fugitive Slave Act and avoid complacency in a national regime which forced Northerners to act individually to support the claims of slaveowners to fugitive slaves. The Supreme Court’s decision in 1859 in Ableman v. Booth struck down the Wisconsin Supreme Court’s assertion of jurisdiction and appeared to strongly endorse ending state court jurisdiction over federal habeas cases. However, in the midst of the Civil War, many Northern state courts confronted the question of whether Ableman v. Booth was limited to its facts and whether it indeed foreclosed all such claims to state court jurisdiction. Generally, state courts (like federal courts) interpreted Ableman to be a staunch assertion of federal jurisdiction and power, but many state supreme courts justices in important states like New York and Pennsylvania argued that Ableman could not extend too widely. While Dred Scott (1857) is rightfully treated as the seminal Supreme Court opinion which further divided the nation and granted national protection to the rights of slaveowners by denying citizenship for black Americans, Ableman’s significance is mostly overlooked.
As of 1854, Sherman M. Booth was editor of the abolitionist paper the Milwaukee Free Democrat. 5 That year, he leant aid to a fugitive slave in violation of the 1850 act and authorities ordered him held for trial. Booth applied to a judge of the state supreme court for a writ, not the federal court. The state court initially released Booth, who was again seized, found guilty at the federal district court and again held in local prison. Once more, then, the Wisconsin Supreme Court ordered his released on the ground the act was unconstitutional. Booth’s attorneys’ formed an argument in the two habeas cases that borrowed “heavily from the playbook of other anti‐slavery advocates, including noted abolitionist lawyer Salmon P. Chase.” Of the three justices who made up the Wisconsin Supreme Court in Ableman, two adopted “large swaths of these arguments” of anti‐slavery advocates. Notably, all three justices upheld their jurisdiction to issue habeas corpus to federal officers—not only to question the lawfulness of the pre‐indictment detention of Booth, but also to question the jurisdiction of the convicting court. 6 Because Booth’s conviction was under an unconstitutional statute, this supplied the needed jurisdictional defect that was the prerequisite for habeas.
Two of the Wisconsin justices held the Fugitive Slave Act unconstitutional both because of its use of non‐Article III commissioners and because of the lack of a jury trial for the alleged fugitive slaves. Justice Abram D. Smith additionally claimed that Congress lacked power to legislate to enforce the Fugitive Slave Clause, notwithstanding that the United States Supreme Court in Prigg had expressly upheld such power. Smith even questioned the power of the Supreme Court to review state court decisions under § 25 of the 1789 Judiciary Act despite the rule of Martin v. Hunter’s Lessee7 (1816). Justice Smith’s refusal to accept the Supreme Court’s holdings in Prigg v. Pennsylvania8 (1842) and Martin drew on a “compact theory” of the Constitution, which saw the states as parties to the constitutional agreement. Chief Justice Taney’s opinion in Ableman rejected the compact theory in favor of dual sovereignty, with each separate sovereign supreme in its judicially‐discernible separate sphere.
In Ableman, Taney was clear from the beginning he felt both actions of the Wisconsin Supreme Court derived from the same principles. Both orders resulted from Booth’s actions in 1854 to aid Joshua Glover, the runaway slave. In the first instance, the state court claimed and exercised the right to supervise and annul the proceedings of a commissioner of the United States, discharging a prisoner who had been committed by the commissioner for an offence against the laws of this Government Committed a federal offense. This exercise of power by Judge Smith was thereafter sanctioned and affirmed by the Supreme Court of the State. In the second case, the State court went “a step further” and claimed and exercised jurisdiction over the proceedings and judgment of a District Court of the United States, setting aside and annulling its judgment by discharging a prisoner who had been tried and found guilty of an federal offence. 9 Taney wrote that the Wisconsin Supreme Court, claiming final and conclusive judgment, had crafted a new proposition in American law: 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. 10 The court may have discussed the Fugitive Slave Act, but the “paramount power of the state court lies at the foundation of these decisions, for their commentaries upon the provisions of that law, and upon the privileges and power of the writ of habeas corpus, were out of place, and their judicial action upon them without authority of law.” Taney felt this could not possibly be the intent of the Constitution nor could it comport with the Judiciary Act of 1789. His answer, as noted, was that of dual sovereignty. Although states were sovereign within their territorial limits, that sovereignty was limited and restricted by the Constitution and while the powers of the state and federal government “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.” 11
Under the theory of dual sovereignty, it followed for Taney that federal courts were granted exclusive jurisdiction over federal questions. Article III declared the jurisdiction of federal courts to extend to all cases arising under “this Constitution” and the laws of the United States, “leaving out the words of restriction contained in the grant of legislative power which we have above noticed” and this power was “indispensable not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the General Government.” 12 This was a robust vision of federal power and Taney saw exclusive jurisdiction over federal questions as not merely the power of the federal judiciary, but emphatically its duty. If Congressional acts came into conflict with the Constitution, it was the duty of the courts of the United States to declare it unconstitutional and void. As a result, it was the duty of the marshal or other person holding the prisoner 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. 13 No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, had any right to interfere. Finally, Taney upheld the constitutionality of the Fugitive Slave Law “in all of its provisions” as being fully authorized by the Constitution such that the commissioner had lawful authority to issue the warrant and commit the party, and that his proceedings were regular and conformable to law. 14
Taney’s opinion in Ableman, like his opinion in Dred Scott15 , did not quell the growing national discontent over the issue of slavery. And it did not entirely stop the Wisconsin Supreme Court. Under Chief Justice Luther Dixon upheld the declaration that the Fugitive Slave Act was unconstitutional, while ordering the Supreme Court’s mandates to be filed and upholding the right of the Supreme Court to review state court decisions under Section 25 of the Judiciary Act of 1789. 16 The coming of the Civil War saw both federal and state courts try to grapple with the implications of Taney’s opinion. In particular, courts would soon see challenges to Lincoln administration war measures on the basis of habeas corpus. Two federal actions hastened the debate–Lincoln’s suspension of the writ in April 1861, September 1862, and September 1863 and Congress’s passage of the Habeas Corpus Act of 1863. When Congress passed the Enrollment or Conscription Act of 1863, they also passed the Habeas Corpus Act right alongside it. It is unsurprising precisely because the constitutional issues attached to each were closely entwined. From the 1789 up to the war, the Judiciary Act had only “federal question” review jurisdiction over state court decisions and thus state courts had exerted concurrent jurisdictions over claims arising under the Constitution or federal law. Litigants could who alleged the infringement of a federal constitutional right had to wait for an adverse state court verdict before appealing to the Supreme Court by writ of error. 17 This included writs of habeas corpus, as no federal judge could abort a state trial already proceeding. According to Harold Hyman and William Wiecek, the 1863 Habeas Corpus Act “lessened” the “imbalance” between federal and state justice, at least for federal officers who were defendants in state courts. The law indemnified federal officers who had already been found guilty in state courts of civil wrongs and gave officers a defense on the basis of properly obeying and enforcing executive orders or the federal law. Further, the act had a removal provision and it did not require a money minimum or state diversity for federal jurisdiction, but only that plaintiffs initiate suits against officers within two years of the alleged damages. 18 Two days after the passage, on March 5, 1863, the most widely‐read Democratic newspaper, the New York World, wrote of the “complete overthrow of the public liberties” and the “darkest hour” since the beginning of the war. 19 Combined with the Conscription Act, the President was granted the “immense power” to command every able‐bodied man while Congress removed any check on the abuse of the “enormous monetary and military power” given to the President. By the Habeas Act, the President could send one of his “countless” provost marshals to the house of any citizen, even the governor, in the “dead of night, drag him from his bed, hustle him away under the cover of darkness, plunge him in a distant and unknown dungeon, and allow his friends to know no more,” implying that the Provost Marshal might even murder with impunity.
The threat was downright apocalyptic. The bill granted tremendous arbitrary power over the liberty of citizens to provost marshals, who could arrest without suspicion “just as the Sultan of Turkey,” making citizens dependant on the caprices of one man. 20 Significantly, it provided for taking all damages suits out of state courts and into federal tribunals, where the act made the fact that the injury complained of was done under color of executive authority a full and complete defense. This was alarming to the World, since now every citizen held his liberty at the mercy of the President and was liable to be punished for inquiring judicially whether the person arrested him legitimately possessed authority to do so. Giving the President complete immunity while foreclosing the redress of harm in state court was a “dangerous” and “tremendous” power, completing Congress’s “overthrow” of American freedom.
It appeared that constitutional positions had flipped. Now the language of abolitionists employing states’ rights to oppose the growth of federal power to enforce slavery nationally was being used to oppose federal overreach in prosecution of a war which gradually became an abolitionist endeavor. Opponents and supporters built upon the debates over the Fugitive Slave Act of 1850 and the federal administrative apparatus which grew out of it to oppose these new actions by the Lincoln administration and Congressional Republicans. In order to enforce the Enrollment or Conscription Act, the Habeas Act ensured the protection of federal officers from liability for official acts in state courts. The experience of state courts like Wisconsin’s and Ohio’s using habeas suits in the 1850s to defy a federal statute they believed unconstitutional colored the structure of federal conscription during the Civil War. Lincoln and his administration made clear that they feared defiant state court judges taking constitutional questions into their hands and thereby destroying the capability of the federal government to promulgate an effective draft.
However, new events also brought new challenges to federal powers. In late 1862 and early 1863 (before Congress passed the Conscription and Habeas Acts), state judges continued to suggest a willingness to engage with key constitutional questions of federal power. Judges had to answer questions about the extent of Presidential power related to Lincoln’s September 24, 1862 suspension of habeas corpus and, in order to do so, had to address their claims to state jurisdiction over constitutional questions. In particular, the Wisconsin Supreme Court’s opinion in In Re Kemp (January 1863) saw Lincoln’s Secretary of Interior, Edward Bates, pleading for a Supreme Court resolution. These cases will be covered in my next two columns.