| The Fourteenth Amendment and the
In re Booth and Rycraft, 3 Wis. 157 (1854)
In 1854, Benjamin S. Garland, a Missouri slaveowner, tracked his fugitive slave Joshua Glover down in Racine, Wisconsin. Under the Fugitive Slave Act of 1850 , Garland secured a warrant for Glover's arrest from a U.S. commissioner in Milwaukee and participated in forcibly capturing Glover, who was taken to a Milwaukee jail. Enter Sherman M. Booth, an abolitionist and editor of an antislavery newspaper. Booth succeeded in securing a writ of habeas corpus from a Wisconsin state court judge for Glover's release. The federal marshal and county sheriff though refused to release Glover on the ground that a state court did not have the authority to issue a writ of habeas corpus for a prisoner held in federal custody. A angry crowd broke into the jail and rescued Glover who was never recaptured. Booth, Rycraft, and others were then indicted for violating federal law by aiding and abetting the rescue. Booth responded by again going into state court; this time to secure a writ of habeas corpus for his own release. The Wisconsin Supreme Court in In re Booth and Rycraft affirmed the lower court's issuance of the writ.
In 1859, the U. S. Supreme Court reversed the Wisconsin Supreme Court's decision in Ableman v. Booth.
SMITH, J. The facts in these two cases are essentially the same, and any observations which I feel called upon to make will apply to both cases alike, and, therefore, for the sake of convenience, mention will be made of the petition of Rycraft only. . . .
The first, the fundamental question which the case presents, is: Has this court the power to inquire into the legality of the authority by which it is claimed, the prisoner is, and ought to be held in custody?
It seems to me that the solution of this question is to be found in a few simple elementary propositions, which require little or no proof or argument to sustain them.
It is the duty of the government to protect and secure the just rights of its citizens, whose support and allegiance it commands, among which is the right to personal liberty.
This duty of the government is to be measured only by the extent of the individual right, and it is bound to provide means adequate to its full and complete performance.
If the government be complex, the means may be distributed, and the obligations of duty divided, but not so as to come short in the whole, of the object to be accomplished.
Ours is a complex system, with powers distributed to each of its parts, but all of its parts together constituting an entire sovereignty, and so, of course, in duty bound, as a whole, to furnish complete protection.
Whatever powers and duties are not delegated or assigned to one department or branch of the entire sovereignty, must remain in the other; the federal and state organizations together constituting a complete government, endowed with all the attributes properly pertaining to a sovereign state.
If one be made up of delegated, and the other of reserved powers, the duties assigned to the former can only be coextensive with the powers delegated, and the duties of the latter must remain commensurate with the powers reserved or not delegated, and these powers adequate to every emergency not within the scope of the former.
The federal government is one of delegated powers, the state government is one of inherent or reserved powers; the former competent to act only within the sphere prescribed by the constitution; the latter exercising all the functions of sovereignty not delegated or relinquished by that instrument.
The power to guard and protect the liberty of the individual citizen is inherent in every government; one which it cannot relinquish, which was reserved to the states, which was never granted to the federal government, has never been claimed by it or for it, but has always been conceded to the states, without which they could not exist, because it is obvious that they could claim no allegiance or support from their citizens whom they had not the power to protect.
If, therefore, it is the duty of the state to guard and protect the liberty of its citizens, it must necessarily have the right and power to inquire into any authority by which that liberty is attempted to be taken away. But the power to inquire, includes the power to decide. The right of the sovereign to demand by what authority such imprisonment is attempted, implies the obligation and duty of the person imprisoning to respond; the right to demand such authority on the one hand, implies on the other the duty to exhibit it.
The states and people thereof have delegated to the federal government the power to imprison the citizen in certain cases, but in none other. So far, then, as that government acts upon the power thus delegated, the states cannot interfere to protect its citizen, but in every other case they not only have the power, but it is their solemn duty to interpose their authority. As the power by which the federal government can imprison, is a delegated power, it must necessarily appear, in every case where it imprisons, that it is acting in conformity with some power delegated. . . .
The constitution of the United States is the deed of grant, so to speak, expressing in written terms all the powers delegated to the federal government, and prohibited to the states. The states respectively retain all else of sovereignty, limited only by the local constitutions prescribed by the people of each.
Therefore, to me it is plain, that when the federal government assumes to act in a given case, it is bound to exhibit a case within its prescribed powers; for a denial of this proposition involves the assumption of inherent powers, derived from a source other than the states and their respective people, transcending the constitution itself.
As, therefore, the STATES delegated, and the federal government took power, limited in character and extent, the latter is at all times answerable to the former, and may be required to exhibit the constitutional warrant by which it claims to do, or refuses to perform, any given act, when so required by the primary original authority, in conformity with the modes lawfully established.
In the constitution of the United States, sound policy required the incorporation of a function by which the government thus created might be such in fact, by executing its own constitutional laws and decrees, and to that end be enabled to act upon individuals in all of the creative, constituent sovereignties. This could only be accomplished by the creation of a judicial department, supreme and independent within its prescribed sphere, whose process should extend to every citizen. But in giving up so much of this vital element of sovereignty as was deemed essential to the system, the states, or the people thereof respectively, carefully guarded it, hedged it about with provisions which, it was supposed, would be impassable. They prescribed its extent (that is of the judicial power of the United States), by words most carefully selected, whose import could, as was believed, scarcely be mistaken, and beyond which it was supposed, no venturesome mind would rush.
"The judicial power" (of the United States) "shall extend to all cases in law or equity, arising under this constitution, the laws and treaties made or which shall be made under their authority," etc. Const. U.S., Act 3, § 2. . . .
But we are relieved from the necessity of criticism upon these words, by another provision of the same instrument, which is in the following words:
"This constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, etc. Const. U.S., art. 6.
Here is a distinct recognition of the power and duty of state judges, not to be bound by all the acts of congress, or by the judgments and decrees of the supreme federal court, or by their interpretation of the constitution and acts of congress, but by "this constitution," "and the laws made in pursuance thereof." . . .
It would seem obvious that if certain powers and attributes of sovereignty were reserved to the states, they must necessarily have the right to protect them. It would have been stupendous folly to insist upon an express amendment to the constitution, that all powers not delegated to the United States, nor prohibited to the states, are reserved to the states respectively, or to the people," if, among these powers was not reserved that of protecting them. If to the federal government were granted the sole power to decide what powers were reserved and what were not, and to enforce its decision upon the states, the incorporation of this amendment would be a mere empty sounding announcement, placing the governments of original, inherent and reserved powers at the mere forbearance of the federal government. . . .
It was never intended that there should be one uniform will to administer this government. The object of delegating judicial power to the federal government, was two fold; to enable the government to protect the powers delegated by the direct execution of them through its own instrumentalities; and also to operate as a check upon the other departments, the executive and legislative. Each is independent and coordinate. In like manner, and for a like purpose, were certain powers delegated to the federal government as a whole, while other powers were reserved to the states, and among these reserved to the state governments was the judicial power, being as essential to the states for the protection of their reserved powers, as it is to the federal government for the protection of its delegated powers. It is equally essential to both. Without it, neither would be a government. It being equally necessary to both, it is obvious that one cannot be subjected to the other without endangering the very object of its institution and endowment. Consequently, both are coequal and coordinate; as much so as are the several departments of each government coequal and coordinate with each other.
It has been said, and repeated with emphasis, that if state courts are permitted to call in question the jurisdiction of an inferior court of the United States (as the district courts of the United States must be considered . . .) there must necessarily result great confusion in the interpretation of the constitution. . . . But a glance at the practical working of our system of government shows these assertions not only to be unfounded in truth, but most vicious in their tendency. One among the objects in distributing the powers and elements of complete sovereignty, was expressed in the preamble to the federal constitution, "to secure the blessings of liberty," etc., and the theory is apparent, viz.: to provide such a distribution of powers, as to make one branch or department operate as a check upon another, and to preclude the possibility of any one branch or department from assuming or exercising the whole or those of another, and to make each independent of the other, but all ultimately responsible to the primary source of all power. . . . .
It is enough to say, that all history, as well as philosophy, teach us, that individual liberty is never safe where the power of the rulers is unrestricted. . . .*
[*footnote: . . . . But the real danger to the union consists, not so much in resistance to laws constitutionally enacted, as in acquiescence in measures which violate the constitution. It is much safer to resist unauthorized and unconstitutional power, at its very commencement, when it can be done by constitutional means, than to wait until the evil is so deeply and firmly rooted that the only remedy is revolution. . . .]
It seems to me that the provision of the constitution before referred to, is an express recognition of the judicial power of the states, as extending to all laws of the United States, and a requisition of obedience on the part of the state judges, to all laws of the United States, provided they are made in pursuance of the constitution, and not otherwise. . . .
The states never yielded to the federal government the guardianship of the liberties of their people. In a few carefully specified instances they delegated to that government the power to punish, and so far, and so far only, withdrew their protection. In all else they reserved the power to prescribe the rules of civil conduct, and continued upon themselves the duty and obligation to protect and secure the rights of their citizens declared to be inalienable, viz: "Life, liberty and the pursuit of happiness.". . .
It would seem obvious that this power to inquire into the condition of the citizen, and to be informed of the causes of his imprisonment or restraint, has never been surrendered or relinquished by the states. It is one of the highest attributes of sovereignty. . . .
The obligations of the state and federal governments are herein perceived to be mutual and reciprocal. The one to abstain from all interference, whenever it perceives the subject matter to be within the attached jurisdiction of the other, and that other to show that the authority which it claims to exercise is within the powers delegated, and one which it may rightfully exercise. . . .
If these views be correct, how stands the present case? It is clearly our duty to grant this writ [of habeas corpus], to inquire into the cause of the prisoner's caption and detention. . . .
I have on another occasion attempted to show that the act of congress, approved September 18, 1850, commonly called the fugitive slave act, was not within the constitutional power of congress. I have no time now to enlarge upon the views there presented. But I may be permitted to say, that after careful research, and much reflection, I have not been able to perceive any reason to recede from the positions then taken, but on the contrary it is clear to my mind, that the contrary doctrine is dangerous to the sovereignty and independence of the states, destructive to the peace and harmony of the union, and ultimately subversive of the very end and aim contemplated by that enactment. . . .
I cannot discharge my duty without again affirming the conclusions to which I then arrived. . . .believing as I do, that congress had no power to pass the act of 1850, that the duties and obligations declared by the constitution in that respect by the 3d clause of sec. 2 of art. 4 of the constitution, were imposed upon the states, and all power in relation thereto reserved to the states and the people, I am compelled to hold that the act is unconstitutional and void, and can confer no authority upon the federal courts.
This doctrine goes to the jurisdiction of the court which attempted to try and sentence this petitioner, . . . .
I agree fully with the course of reasoning of my brother Crawford, upon the second branch of this case, viz: that the record of conviction here returned does not show an offense within the jurisdiction of the federal court, even admitting the act of 1850 to be constitutional; and even on that ground alone I should agree to discharge the prisoner. . . .
I have deemed it my duty on this occasion to express my views upon a question which I deem vital to the system on which our government is based. . . .
But the question suggests, and indeed upon the argument have been raised questions involving the powers of the federal and state governments; questions not confined to the particular subject matter of the act of 1850, but questions pervading the entire scope of the two governments, in all of their departments, upon other subjects which may from time to time arise. And firmly believing that the beneficent designs of the union can only be realized, and the union itself only preserved by maintaining the independence and sovereignty of the states intact, in all respects, except where they have clearly delegated power, and by confining the federal government to powers clearly conferred, I have felt called upon to place my views upon our records, in order that I may discharge my full duty, and that my reasons for the decision to which I have been impelled, may be fully known, and not misapprehended.