Where the clerk of the supreme court of a state neglects or
refuses to make a return to a writ of error issued under the 25th
section of the Judiciary Act, this Court will lay a rule upon him
to make return on or before the first day of the next term or show
cause why such return has not been made in conformity to law.
And where there is another case upon the docket involving the
same questions, the Court will direct it to be continued in order
that both cases may be argued together.
These two cases will be reported together although in some
respects they were dissimilar. In both, however, writs of error had
been issued by this court directed to the Supreme Court of
Wisconsin. In the first case, viz. The United States v.
the writ was not returned, and Mr. Cushing, Attorney
General, filed a copy of the record and moved the Court to docket
the case and set it down for argument at the next term. In the
other case, viz. Ableman v. Booth,
the writ was returned
accompanied by a certified copy of the record, and the case stood
regularly upon the trial docket.
In the case of United States v. Booth,
the motion of
the Attorney General was as follows:
"And now the Attorney General comes into Court and says that to
the writ of error in the present case to the Supreme Court of the
State of Wisconsin, issued by the Chief Justice of the United
States, no return has been made, whereupon he moves that an
authentic copy of the record of the said Supreme Court of the State
of Wisconsin in the case, and of the writ of error, with
certificate of other proceedings since had, may be filed and the
case entered and proceed to final judgment on the said copies."
The other proceedings mentioned in the above motion were
comprised in the following certificates, &c.
1. A petition of the Attorney General reciting the facts stated
in the opinion of the court and praying for a writ of error to
remove the case from the Supreme Court of Wisconsin to this
2. The allowance of the writ on the 21st of April, 1855. On the
5th of September, 1855, John R. Sharpstein, district attorney of
the United States, made oath before Judge Miller, judge of the
district court, that he delivered the writ of error to Lafayette
Kellogg, Esq., Clerk of the Supreme Court of Wisconsin, at his
office in Madison on the 30th of May, 1855.
3. The citation to Booth and the service of it by Ableman, the
4. The following affidavit by Sharpstein:
"I, John R. Sharpstein, attorney of the United States for
Page 59 U. S. 477
district, do solemnly swear that I have been informed by
Lafayette Kellogg, Esq., Clerk of the Supreme Court of the State of
Wisconsin, and also by Abram D. Smith, an associate justice of said
court, that the said court directed the said clerk to make no
return to the writ of error issued out of the Supreme Court of the
Unite States, in the above entitled cause, and by this deponent
served, according to law and the rules of the said lastmentioned
court, and that the said Supreme Court of the State of Wisconsin
further directed the said clerk to enter no order upon the journal
or records of said court concerning the same, and further deponent
"J. R. SHARPSTEIN"
5. A copy of the record.
N THE MATTER OF THE UNITED STATES V. SHERMAN M. BOOTH
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
The court proceed to dispose of the motion made by the attorney
general to docket the case of United States v. Booth,
stand for argument in this Court at the next term.
In support of this motion he has produced a copy of the record
of the proceedings in the Supreme Court of Wisconsin in the
above-mentioned case, certified by the clerk under the seal of the
court, by which it appears that Booth was indicted in the District
Court of the United States for the District of Wisconsin for aiding
a fugitive slave to escape from the custody of the marshal -- the
marshal having the said slave at that time legally in his custody
-- and that upon that indictment the said Booth was tried and found
guilty and sentenced by the court to be imprisoned for one month
and to pay a fine of one thousand dollars. That while he was thus
imprisoned, he obtained a writ of habeas corpus from the state
court and, upon a hearing in the supreme court of the state, was
discharged from imprisonment by that court upon the ground that the
imprisonment under the sentence of the district court of the United
States was illegal.
It further appears that a writ of error afterwards issued from
this Court, at the instance of the Attorney General in behalf of
the United States, returnable to the present term, and directed to
the judges of the Supreme Court of the State of Wisconsin, in order
to bring the said proceedings and judgment here for revision,
according to the provisions of the 25th section of the Act of
Page 59 U. S. 478
Congress of 1789, ch. 20. But no return has been made to the
writ, and it appears by the affidavit of the district attorney,
filed with the motion, that the writ of error was duly served on
the clerk of the supreme court of the state, and that he was
informed by the said clerk that the court had directed him to make
no return to the writ of error.
Upon this state of facts, the Attorney General has made the
motion above mentioned.
The writ of error without doubt was rightfully issued from this
Court to carry into execution the appellate powers confided to it
by the Constitution and laws of the United States, and it was the
duty of the clerk to obey it and to send a transcript of the record
and proceedings therein mentioned, together with the writ of error,
to this Court at the present term. And certainly the order of no
other tribunal will justify an officer in disobeying the process of
this Court lawfully issued.
The refusal of the clerk, however, cannot prevent the exercise
of the appellate powers of this Court, and the Court will take such
order in the case, as will enable it to fulfill the duties imposed
But in a matter of so much gravity and importance, we deem it
proper, before any other proceeding is had, to lay a rule upon the
clerk to make the return required by the writ of error on or before
the first day of the next term of this Court or to show cause, if
any he hath, to excuse or justify his neglect or refusal to obey
The motion to docket the case is therefore continued over to the
next term, and the Court will make the following order:
It having been suggested and shown to this Court by the Attorney
General of the United States that the writ of error heretofore
allowed and awarded by the Chief Justice of the Supreme Court of
the United States, and which issued out of this Court pursuant to
the several acts of Congress in such case made and provided,
directed to the Supreme Court of the State of Wisconsin, requiring
the record and proceedings of the said Supreme Court of the State
of Wisconsin in the matter of Sherman M. Booth, for a writ of
habeas corpus and to be discharged from imprisonment to be sent to
this Court has not been returned pursuant to the exigency of the
It is thereupon ordered that the clerk of said Supreme Court of
the State of Wisconsin do make due return of the said writ of error
pursuant to the mandate therein contained and according to the laws
of the United States in that behalf on or before
Page 59 U. S. 479
the first day of the term of this Court next to be holden at the
City of Washington, on the first Monday of December, in the year of
our Lord one thousand eight hundred and fifty-six or then and there
show cause why such return has not been made in conformity to law.
And it is further ordered that a copy of this rule be served on the
said clerk on or before the first day of August next.
ABLEMAN V. BOOTH, No. 35
N ERROR TO THE SUPREME COURT
OF THE STATE OF WISCONSIN
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
Upon looking into the transcript in this case, we find that the
questions of constitutional law which it involves arose in a
preliminary proceeding in the case between the same parties, of
which we have just spoken. In that case, the whole subject was
disposed of in the state court, and the principal question in it is
precisely the same with that which is presented in this, which the
Attorney General proposes to argue. The two cases ought to be
argued together. It would hardly be proper for the Court, where
questions of so much interest are concerned, to hear a portion of
them at one term and a portion of them at another. All of the
questions which are involved in the two cases have grown out of one
transaction and depend upon the same facts, and it is impossible to
decide one without disposing of the principal question in the
other. The Court therefore will not hear the argument in these
cases separately. They must be argued together. And as the
principal case is not before the Court in a form that will enable
the Court to hear it at the present term, this preliminary portion
of it must be continued until the next term, to be argued when the
whole subject is ready for hearing.