Saturday, January 20, 2007

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.

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