Ableman v. Booth XV: Whiton on Juries and Commissioners

The United States' principal argument in support of the constitutionality of the Fugitive Slave Act of 1850 was that the United States Supreme Court had already held, in Prigg v. Pennsylvania, that the Fugitive Slave Act of 1793 was constitutional. Chief Judge Whiton did not expressly concede that the Supreme Court of Wisconsin was bound by Prigg. By the same token, he did not expressly deny that the Supreme Court's ruling was binding. Rather, he sought to distinguish Prigg and the 1793 Act from the 1850 Act. He found two distinguishing features, which allowed him to conclude that 1850 Act was unconstitutional without squarely disavowing the authority of the Supreme Court.

The distinguishing features are interrelated. First, he concluded that in Prigg "the question of a trial by jury to determine the facts of the case, was not raised by the record and was not discussed by the [Supreme] court in giving its opinion." Second, because the 1793 Act did not create or authorize the use of United States Commissioners, Prigg obviously did not pass on the constitutionality of that feature of the 1850 Act.

These related aspects of the 1850 Act rendered the Act void, according to Justice Whiton:

"We are of opinion that so much of the act of congress in question, as refers to the commissions for decision, the questions of fact which are to be established by evidence before the alleged fugitive can be delivered up to the claimant, is repugnant to the constitution of the United States, and therefore void for two reasons: First, because it attempts to confer upon those officers judicial powers; and second, because it is a denial of the right of the alleged fugitive to have those questions tried and decided by a jury."

But Justice Whiton's opinion is probably more interesting for what it did not say. You will recall that Justice Smith had held the 1850 Act unconstitutional on the very broad ground that the Fugitive Slave Clause, Article IV, Section II did not grant Congress the power to pass enforcing legislation -- an argument that the United States Supreme Court had squarely discussed and rejected in Prigg. Justice Whiton specifically noted that Mr. Booth had raised this argument, but he then sidestepped it by deciding the constitutional issue on the narrower grounds noted above.

Ableman v. Booth XIV: Justice Whiton's Opinion

You will recall that Associate Justice Abram D. Smith, by himself, heard and granted Sherman Booth's habeas petition because the full court was not then in session. Thereafter the federal government appealed to the full Supreme Court of Wisconsin, which then consisted of three judges: Justice Smith, Chief Justice Whiton (introduced in the last entry), and associate Justice Samuel Crawford (about whom more in a later post).

The full court affirmed Justice Smith's decision to order Mr. Booth's release by a vote of 2 to 1, with Justice Crawford dissenting. Each Justice wrote a separate opinion. We turn now to that of Chief Justice Whiton.

Chief Justice Whiton's reasoning was similar to that of Justice Smith in a number of respects; it differed in one very interesting way. First, let's examine the issues on which they agreed.

First, his analysis of the jurisdiction issue is largely similar. He too focused on the fact that the warrant under which Mr. Booth was held had been issued by a Commissioner appointed pursuant to the Fugitive Slave Act of 1850. Chief Justice Whiton concluded, in effect, that a Commissioner was not an Article III judge. Therefore, Mr. Booth was not in the custody of the federal judiciary, and Wisconsin state courts could properly exercise jurisdiction over the propriety of Mr. Booth's detention.

Turning to the merits, the Chief Justice also came to the conclusion that the warrant was defective for technical reasons. For example, it did not recite "for what purpose Joshua Glover . . . was in the custody of the deputy of the marshall." This argument is no more convincing to me now than it was when Justice Smith espoused it.

The opinion becomes most interesting when Justice Whiton turns to the constitutionality of the Fugitive Slave Act of 1850. He, too, concluded that the Act was unconstitutional, but on narrower grounds than did Justice Smith. One gets the clear sense that Justice Whiton was less "radical" than Justice Smith. One also gets the clear sense that he was a more careful lawyer, in that he worked hard to reconcile his conclusion with that of Prigg v. Pennsylvania, in which the Supreme Court had upheld the constitutionality of the Fugitive Slave Act of 1793.

We shall look at the details of Chief Justice Whiton's efforts in this regard in the next post.

Ableman v. Booth XIII: Edward Vernon Whiton

It's time to return to Sherman Booth. To get you back into the swing, let me introduce the next actor we'll encounter: Edward Vernon Whiton, the Chief Justice of the Supreme Court of Wisconsin.

Chief Justice Whiton was born in Massachusetts in 1805. He earned his law degree there and moved to Wisconsin in 1837. A Whig and later a Republican, Whiton served in the territorial legislature and at the state constitutional convention. When Wisconsin achieved statehood in 1848, he was elected a state circuit court judge and served ex officio as a justice of the State Supreme Court. When the Supreme Court was reorganized as a separate body in 1853, he became its first Chief Justice. He served in that position until his death in 1859. Brief biographies are available here and here

Time permitting, tomorrow I will discuss Chief Justice Whiton's opinion.