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.