Ableman v. Booth XX: Justice Crawford on U.S. Commissioners

To recap, the dissenting Wisconsin Supreme Court Justice, Associate Justice Samuel Crawford, concluded that the Fugitive Slave Act of 1850 was constitutional, despite doubts due to (a) the use of United States Commissioners, and (b) the failure to provide for trial by jury.

His concern about the use of Commissioners arose from the fact that the Act created and authorized them to undertake functions that “look[] very like the exercise of judicial functions.” They were not, however, what we would now call “Article III judges,” that is federal judges appointed for life subject to good behavior pursuant to Article III, Section 1 of the Constitution.

Justice Crawford’s discussion as to why he nonetheless believed that the use of Commissioners was constitutional is downright ingenious. First, he noted that federal territorial judges were not Article III judges either; even so, their ability to perform judicial functions was not questioned:

“But the judges of several of the territories of the United States, who hold their appointments from the president, are not appointed to hold during good behavior; and, if I am not mistaken, there is no instance of their having been held liable to impeachment; at least that they are not so liable, has been advanced by an attorney general of the United States.”

Sherman Booth apparently argued that the appointment of territorial judges was different, because Congress created them pursuant to power granted by the Territories Clause (Article IV, Section 3, Clause 2), which expressly granted to Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”

Justice Crawford was unpersuaded. If the Territories Clause gave Congress the power to create non-Article III judges, then the Fugitive Slave Clause arguably granted Congress the same power:

“[I]f the power to legislate upon the subject of fugitives from labor be vested in congress [as the Supreme Court had held in Prigg], it would seem that the performance of judicial acts might be vested in orther than judges or courts, under the constitutional provision (article three, section one,) in such a case, as in the case of newly organized territories.”

Justice Crawford’s second argument was equally clever. “[I]t has repeatedly been held” that Congress could authorize “state courts or magistrates . . . to perform acts of a judicial character arising out of the acts of Congress.” But state courts and magistrates were not Article III judges either:

“Now if judicial power can be conferred by congress upon others than courts or judicial officers known to the constitution, it seems to me that it can make little difference whether the power be vested in a state court or officer, or in a commissioner or officer of the United States who is not a judicial officer. In either case, the power is vested in a tribunal or officer, not a court or judge, contemplated by the clause of the constitution referred to.”