Page:A Historic Judicial Controversy and Some Reflections (Gregory, 1913).djvu/6

184 before the first meeting was opened, 'Mr. Booth, let us take him out,' I answered, 'No, we must use legal and peaceful methods,' and during the whole of this scene I counselled against violence, publicly and privately. Yet in all the histories of this case, in newspapers, pamphlets and books, I am represented as riding through the streets of Milwaukee shouting, 'Freemen to the rescue.' * * * I respectfully decline the honor of a deed I never performed. The only responsibility attaching to me for the rescue of Glover is that I helped create a strong public sentiment against the fugitive slave act and called the meeting to protect the legal rights of Glover and give him a fair trial. If, when assembled for peaceable and lawful purposes, the course of the judge and his bailiffs excited the people to take Glover out of jail against my advice, I was guiltless of the rescue."

The Judge Miller referred to was Andrew G. Miller, District Judge of the United States for the District of Wisconsin.

I am inclined to think that the general impression as to, Mr. Booth's participation in this affair hardly accords with this statement. Certain it is, as will hereafter appear, that he was indicted, convicted and sentenced under the Fugitive Slave law for having aided and abetted the escape of Glover.

He was first arrested on a warrant issued by a United States Court Commissioner at Milwaukee, and bound over to the next term of the Federal Court. Thereafter his bondsman surrendered him and, by warrant dated May 26th, 1854, the Commissioner committed him to the custody of the Marshal.Thereupon application was made to Hon. Abram D. Smith, then a Justice of the Supreme Court of Wisconsin, for a writ of habeas corpus to bring Booth before him. Judge Smith allowed the writ directed to the Marshal. That officer returned the warrant of the Court Commissioner as the justification for the detention of the prisoner.

The cause was argued by Byron Paine for the prisoner and for the Marshal by Mr. J. R. Sharpstein, Federal District Attorney.

The court discharged the prisoner, holding the Fugitive Slave law of 1850 to be unconstituional, on the ground that Congress had no power to legislate on the subject; that Section 2 of Article IV of the Constitution which declares that "No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due," was a mandate