The Inside Track

Here's another great illustration from the Gettysburg College Civil War Era Collection commenting on William Seward's role during the Secession Winter. Entitled The Inside Track, the illustration appeared in Vanity Fair on March 2, 1861, according to the site.

This time, the College's description is just a little bit off:

Lincoln stands between Weed and Seward as they address him. A man with a paper labeled Chicago Platform tries to get in the door. Seward and Weed tried to convince Lincoln that a conservative war effort was the best way, rather than the strong war the Chicago Platform Republicans advocated.

The question at that point was not what sort of "war effort" to wage. Seward was urging the president-elect to do anything to avoid a confrontation.

Groves v. Slaughter VIII: A "power higher and deeper than the constitution"

Only seven Supreme Court justices participated in the decision in Groves v. Slaughter. (One justice was “indisposed” and another “died before the case was decided.")

The first concurrence, by Justice John McLean, is a textbook example of Commerce Clause incoherence.

After admitting that his constitutional ruminations were “not necessary to decision of the case," Justice McLean began his discussion of the substance by forcefully asserting “that the power to regulate commerce is exclusively vested in congress, and that no part of it can be exercised by a state.” This was so even if the federal government had not exercised its power as to a particular subject. A contrary rule “would be as fatal to the spirit of the constitution, as it is opposed to its letter.” What letter, Justice McLean declined to identify.

Next, Justice McLean sketched out what sounded like a narrow reading of the police powers exception. A state may pass laws to guard the health and protect the rights of its citizens, “[b]ut these laws must not be extended so as to come in conflict with a power expressly given to the federal government.”

Having laid out a super-nationalist position – federal exclusivity, narrow state police powers – Justice McLean then took half of it back. It turns out that power over international commerce may somehow be different from power over interstate commerce. The following sentences must be among the more bizarre constitutional pronouncements ever written:

The power to regulate commerce among the several states is given in the same section, and in the same language [as the power to regulate foreign commerce]. But it does not follow, that the power may be exercised to the same extent.

Got it?

The paragraphs that follow relate to slavery, and it becomes clear that Justice McLean’s odd conclusion arose from the collision of two propositions that appeared to him otherwise unreconcilable. The first proposition was that Congress had power (and therefore exclusive power) over “[t]he transportation of slaves from a foreign country.” The fact that the Constitution expressly barred Congress from prohibiting the importation of the slaves before 1808 proved that Congress otherwise had the power to do so, because “this exception to the exercise of the commercial power, may well be considered as a clear recognition of the power in the case stated.”

At the same time, Justice McLean was convinced that the states must have, and therefore did have, the power to control, or prohibit, the entry of slaves into their individual borders. But if the states had this power, the federal government could not have it, because the federal government’s commerce power was always exclusive (“If a state may admit or prohibit slaves at its discretion, this power must be in the state, and not in congress”). Strangely enough, the provision that barred the federal government from banning the importation of slaves until 1808 also supported this proposition (“Some of the states, at that time, prohibited the admission of slaves, and their right to do so was as strongly implied by this provision, as the right of other states that admitted them”).

Justice McLean reasoned that, since the federal government must have exclusive control over the international slave trade, and since the states must have exclusive control over the domestic slave trade, there must be some difference in the Constitution between the two, and it seems to have had something to do with equality among the states:

The United States are considered as a unit, in all regulations of foreign commerce. But this cannot be the case, where the regulations are to operate among the several states. The law must be equal and general in its provisions. Congress cannot pass a non-intercourse law, as among the several states; nor impose an embargo that shall affect only a part of them.

If you understand what this means, or why it supports Justice McLean’s conclusion, please let me know!

Justice McLean then veered off into a discussion of whether slaves were “persons.” According to the justice, “[t]he constitution treats slaves as persons” and “acts upon slaves as persons, and not as property.” “By the laws of certain states, slaves are treated as property,” but this character given by local law “cannot divest them of the leading and controlling quality of persons.”

The last (quite long) paragraph of the opinion at least had a purpose. Justice McLean returned to the proposition that states must have the power to regulate the introduction of slaves within their borders. To support this assertion, he cited, first, the fact more than half the states have “abolished or prohibited” slavery. “And in these states, a slave cannot be brought as merchandize, or held to labor, in any of them, except as a transient person.”

Can it possibly be, for example, that the constitution of Ohio, which prohibits slavery, violates the Commerce Clause? Nay!

[N]o one doubts [Ohio’s] power to prohibit slavery. And what can more unanswerably establish the doctrine that a state may prohibit slavery, or, in its discretion, regulate it, without trenching upon the commercial power of congress?

The final paragraph presents an odd mix of half-digested ideas that support the idea that slavery was somehow more “local” and less “commercial” than commerce in products. While Ohio can prohibit slavery, it could not prohibit the importation of “the cotton of the south.” Why not? Because the Commerce Clause “was designed to prevent commercial conflicts among” the states. Slavery, on the other hand, “is local in its character, and in its effects; and the transfer or sale of slaves cannot be separated from this power. It is, indeed, an essential part of it.”

The concluding sentences give the game away. Here is the true source of Justice McLean’s conflict. Ultimately, a principle “higher and deeper than the constitution” required the states to be able to control slavery: “the law of self-preservation.” Consider that the following language comes from the pen of a Justice of the Supreme Court of the United States:

Each state has a right to protect itself against the avarice and intrusion of the slave-dealer; to guard its citizens against the inconveniences and dangers of a slave population. The right to exercise this power, by a state, is higher and deeper than the constitution. The evil involves the prosperity, and may endanger the existence of a state. Its power to guard against, or to remedy the evil, rests upon the law of self-preservation; a law vital to every community, and especially to a sovereign state.

Coda I: I've intentionally left you in the dark about Justice McLean's political views. Even so, you may have guessed. Portions of his opinion suggest the later Republican theme that freedom was national, slavery local. He hailed from Ohio, dissented in Dred Scott, and his anti-slavery views were so pronounced that he was a potential Republican presidential nominee in both 1856 and 1860. Before the War, anti-slavery men were entirely capable of holding radical states-rights views in support of the rights of northern states to reject slavery. In this respect, Justice McLean's opinion reminds me of the opinions of Justice Abram D. Smith of the Supreme Court of Wisconsin in Ableman v. Booth (discussed in a number of earlier posts; click on the appropriate tags).

Coda II: According to Professor Currie, Justice McLean "concluded that slaves were not articles of commerce because the Constitution referred to them as 'persons.'" I suppose that is fair guess at one of the points that Justice McLean was struggling to make, but the fact of the matter is he never quite drew that distinction. What he wound up saying was that slaves were subject to the Commerce Clause for purposes of international trade, but not subject to it for purposes of interstate trade -- a very strange position. The general view of Justice McLean is that he simply lacked the mental horsepower and writing ability to be a first-rate judge. His opinion here certainly bears out that assessment.

Ableman v. Booth XXI: Justice Crawford on Jury Trial

As I previously noted, Justice Crawford was also troubled by the fact that the Fugitive Slave Act provided that alleged fugitive slaves could be delivered to their alleged masters without a trial by jury. That right was “highly and justly esteemed” and “extends to all persons with the state, regardless of color, and to the fugitive from labor or slavery as to the freeman.” The question remained, however, whether the federal Constitution permitted the summary procedure contemplated by the 1850 Act.

Justice Crawford reluctantly concluded that the Constitution did authorize the summary procedure. He noted that the Fugitive Slave Clause, like the Extradition Clause which immediately preceded it in Article IV, Section 2, placed a premium on efficiency rather than fairness. He admitted that extradition was different, in that the extradited defendant was entitled to a jury trial in the state to which he was returned. However, he suggested that, at least in theory, a returned alleged slave also had legal remedies available in the state to which he was returned:

“It is true, that in the case of a fugitive from justice, he is given into custody of the officers of justice, with the beneficent presumption of the law in favor of his innocence, until he shall have been duly convicted; while in the case of the fugitive from labor, he is placed under the control of his claimant, to be carried back to the state from which he is charged to have fled, with no presumption in favor of his freedom; but this is, I think, more an argument against the policy and justice and humanity of the law, than against its constitutionality. A case might arise where, by false swearing and conspiracy, a freeman, by the machinery of this law, might be snatched from his liberty and reduced to the condition of slavery, until, by a suitable proceeding, he asserted and obtained his freedom; but so, also, by similar means, an innocent man may be carried away charge with crime, and placed under the necessity of vindicating his innocence in a distant state.”

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.”

Ableman v. Booth XIX: Justice Crawford on Federal Supremacy

After explaining what his views of federal and state authority concerning enforcement of the Fugitive Slave Clause would be "[i]f this were a new question," Justice Crawford then conceded that he was constrained

"because the question has been authoritatively decided by the supreme court of the United States, the last and final constitutional exponent. Upon this, as upon all other questions arising out of the constitution of the United States, or the laws of congress, I am bound to yield obedience to the decisions of that tribunal, for upon such questions we are subordinate."

Justice Crawford was thus the only member of the Supreme Court of Wisconsin who explicitly admitted that the United States Supreme Court's decisions on federal constitutional matters were binding on state courts. Chief Justice Whiton did not expressly admit as much, but Justice Crawford correctly (in my view) took the position that the Chief Justice had tacitly conceded the issue:

"From these decisions [Prigg and others], I am led to view the subject as definitely settled, and the maxim stare decisis, as entirely applicable. I understand the chief justice to feel himself concluded by these decisions, so far as they declare the act of 1793 to have been the exercise of a constitutional power by congress to legislate, but that because they do not settle the question, whether the fugitive slave is entitled to a trial by jury, of the state where he is seized, and, because the act of 1850 confers certain powers on commissioners appointed by the federal courts, which are claimed to be judicial, the constitutionality whereof has not been determined by the supreme court of the United States, he is at liberty to inquire upon these points, whether the act of 1850 is obnoxious to the consitution."

As to the open issues identified by the Chief Justice, Associate Justice Crawford confessed that the arguments had "raised doubts in my mind," but in the end they "failed to produce that conviction which should justify a court, or judge, to pronounce a legal enactment void, because unconsitutional, and I am therefore unable to concur in the opinion that this law is unconsitutional."

Ableman v. Booth XVIII: Justice Crawford on Federal Power

Justice Crawford then turned to "the question of greatest moment," upon which "a decision or opinion . . . is most desired in this case," namely that relating to "the constitutional power of congress to enact" the Fugitive Slave Law of 1850.

After briefly reciting the arguments of the parties, Justice Crawford summarized his conclusion: "I am satisfied that congress has the constitutional power to legislate upon the subject of fugitives from service or labor, in order to give effect to" the Fugitive Slave Clause.

In elaborating upon his conclusion, Justice Crawford distinguished between how he would rule on the issue "[i]f this were a new question," i.e., not previously discussed and decided by other courts, and how he felt compelled to rule given those earlier decisions. The discussion is worth reviewing in some detail.

Justice Crawford stated that, in the absence of other decisions, he would have likely held that both federal and state governments had concurrent power to enforce the Fugitive Slave Clause, with the proviso that states could not enact legislation that was inconsistent with federal legislation:

"If this were a new question, and I did not feel the control of former adjudications by tribunals composed of men of the most eminent endowments, I would incline to the belief that the power to legislate upon this subject, while it belonged to congress in virtue of the constitution, might be properly exercised by the several states. In other words, that the power is concurrent, and so long as the state legislation is not repugnant to or inconsistent with the provisions made by congress, it is permissible. This is, I think, a necessary conclusion from the language of the constitution itself, where it declares that the fugitive 'shall be delivered up on the claim of the party to whom such service or labor may be due.' The injunction thus imposed upon the states is no less obligatory upon them than is any other provision contained in their respective constitutions . . .."

Ableman v. Booth XVII: Justice Crawford on Jurisdiction

Justice Crawford parted company with his colleagues on the jurisdiction question. Although the court had the authority to inquire into the circumstances of Booth's detention, once it determined that Booth was in federal custody the proper course was to refer Booth to the federal court:

"[W]hen the inquiry into the process is carried thus far, and it is discovered that it is a valid process, of the issuing of which the federal court or officer had jurisdiction, and the subject matter, or offense named therein, is within the control or jurisdiction of the court or officer issuing it, then, I believe, a just and proper regard for the laws of the general government, and for the due administration of them in their own courts, demands that the state court or officer should decline to proceed any farther, and refer the applicant to the federal court for the relief which he seeks."

Ableman v. Booth XVI: Justice Samuel Crawford

The dissenter on the Wisconsin Supreme Court was Associate Justice Samuel Crawford.

Justice Crawford's history is quite different from that of Justices Whiton and Smith, both of whom were native New Englanders who moved to Wisconsin after passing the bar. Justice Crawford was a foreigner, born in Ireland in 1820. He emigrated to the United States in 1840, moving from Orange County, New York to Galena, Illinois, and ultimately to Wisconsin. When the Wisconsin Supreme Court was created in 1853, he was elected as an Associate Justice and assigned the "short" term, which expired in 1855. According to his Wisconsin Court System biography, his dissent in Ableman v. Booth "is believed to have cost him re-election in 1855." He died in 1860. Another brief biography appears here.

Because of his Irish and (presumably) Catholic background, one suspects that Justice Crawford was a Democrat rather than a Whig. As we shall see, whatever his political inclinations, Justice Crawford does not seem to have been a rabid partisan. He appears to have approached the issues in our case with an open mind and reached his decision on the merits as he saw them.

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.

Salmon Chase and The Fugitive Slave Clause

I don't know whether Abram Smith, Sherman Booth or Byron Paine ever met Salmon Portland Chase, but they had clearly absorbed Chase's arguments about the constitutionality of the Fugitive Slave Acts. You will recall that one of Associate Justice Smith's principal arguments was that the Fugitive Slave Clause did not delegate any power to Congress. The Clause was simply a compact between the States, unenforceable by Congress.

Well, this was exactly the argument that Chase had been making and popularizing since the late 1830s, as part of his thesis that the founders loathed slavery and provided in the Constitution that the federal government should have nothing to do with it:

"Chase . . . tried to interpret the [fugitive slave] clause almost out of existence. The section . . ., Chase pointed out, differed from other clauses in neglecting to delegate to Congress power to enforce it by appropriate legislation. Since all powers not delegated to the federal government were reserved to the states, Chase insisted that the clause was really a compact between the northern and southern states, and that 'each State must judge for itself as to the character of the compact, and the extent of the obligation created by it.' The laws of 1793 and 1850 involving the federal government in the capture of fugitives were unconstitutional, since Congress had no power on the subject."

Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (Oxford Univ. Press 2d Ed. 1995) at 77.

Sound familiar?

This helps us understand, by the way, why many members of the Reconstruction Congress believed that it had the power to enforce the Thirteenth Amendment via civil rights legislation, even though that amendment contained no provision specifically delegating power to Congress to do so. It also helps explain why many members of the Reconstruction Congress believed that Section 1 of the Fourteenth Amendment was unnecessary. In Prigg v. Pennsylvania (1842), the Supremes had held -- contrary to Chase's arguments, that the Fugitive Slave Act of 1793 was constitutional: the Fugitive Slave Clause necessarily gave Congress, by implication, the power to enforce it. Members of the Reconstruction Congress reasoned or assumed that the Thirteenth Amendment similarly carried the necessary implication that Congress had the power it enforce it.

It was John Bingham of Ohio who drove his colleagues to include Section 1 in the Fourteenth Amendment because he was one of the few who understood that the implication of Barron v. Baltimore was that Congress did not have the power to enforce the provisions of the Bill of Rights against the States.

Ableman v. Booth XII: "A More Dread Calamity"

Associate Justice Abram D. Smith closed his opinion with a paragraph that presumably summarizes the hopes and fears of many northerners. As you read it, remember that it was released on June 7, 1854, just one week after Congress passed the Kansas-Nebraska Act on May 30:

“What, then, is to be done? Let the free states return to their duty, if they have departed from it, and be faithful to the compact, in the true spirit in which it was conceived and adopted. Let the slave states be content with such an execution of the compact as the framers of it contemplated. Let the federal government return to the exercise of the just powers conferred by the constitution, and few, very few, will be found to disturb the tranquility of the nation, or to oppose, by word or deed, the due execution of the laws. But until this is done, I solemnly believe that there will be no peace for the state or the nation, but that agitation, acrimony and hostility will mark our progress, even if we escape a more dread calamity, which I will not even mention.”

Earlier Posts:

Ableman v. Booth I
Ableman v. Booth II
Ableman v. Booth III
Ableman v. Booth IV
Ableman v. Booth V
Ableman v. Booth VI
Ableman v. Booth VII
Ableman v. Booth VIII
Ableman v. Booth IX
Ableman v. Booth X
Ableman v. Booth XI

"He Came Here With Black Perjury Upon His Soul"

I mentioned in an earlier post that the attorney who represented Sherman Booth in the legal proceedings arising out of the liberation of fugitive slave Joshua Glover was Byron Paine (pictured left, I'd guess in the early 1860s). According to the Wisconsin Court System site, Paine was an abolitionist and friend of Booth who represented him without pay.

But this post is dedicated to more mundane matters. Paine also represented John A. Messenger, who with Booth apparently formed part of the crowd that freed Glover. Like Booth, Messenger was criminally charged in federal court in Wisconsin with aiding and assisting the rescue of a fugitive slave, in violation of the Fugitive Slave Act of 1850. A related decision captures a bit of Paine's courtroom style.

A certain Mr. Jennings was, it seems, a chief prosecution witness against Messenger. His testimony against Messenger was apparently damning, and Paine does not seem to have dented Jennings' credibility, for in his closing Paine was none too subtle. Speaking of Jennings' testimony, Paine's defense was: "He came here [as a witness] with black perjury upon his soul . . . He stood there with black perjury upon his soul . . . He is perjured."

The source is a decision by the Wisconsin Supreme Court in a slander action that Jennings brought against Paine, Jennings v. Paine, 4 Wis. 358, 1855 WL 1921 (1855). The holding, by the way, was that Paine's speech in the courtroom was absolutely privileged.

Ableman v. Booth XI: Prigg v. Pennsylvania

The third and final hurdle that Justice Smith had to clear was Prigg v. Pennsylvania, in which the Supreme Court had ruled that the Fugitive Slave Act of 1793 was constitutional. Before he addressed that decision, he argued at length that the Fugitive Slave Act of 1850 also violated the Due Process Clause. Prigg did not address that issue. For that reason, among many others, the decision was not binding:

“In view of the dissentient opinions of the members of the supreme bench; in view of the discrepancy of opinion which has characterized all other decisions [on the issue]; in view of the fugitive character of the power here claimed by congress, leaping from article to article, from section to section, and from clause to clause, hovering now over a grant, then over a compact, fluttering now around an implication, then around an incident, to find whereon it may rest its foot; in view of the alarm which has seized upon many of the states in consequence of the enormous power which it has called upon congress to assume in its behalf, and the deep wounds which it seeks to inflict upon the rights and sovereignty of the states, and upon the great principles of human freedom; in view of all this, are we not justified in asking of the supreme court of the United States to review their decision . . .?”

Ableman v. Booth X: "There Is No Middle Ground"

The second objection that Justice Smith addressed was an intensely practical one. If the federal government was not empowered to enforce the Fugitive Slave Clause, how and by whom would the clause be enforced?

Again, it seems to me that Justice Smith’s answer comes up short. “[R]epudiat[ing] the degrading insinuation that state officers are less faithful to the constitution, than federal officers,” he simply affirmed that “every state officer, executive, legislative and judicial, who takes an oath to support the constitution of the United States, is bound” to enforce it. But what if they do not?

“The simple answer is, that when the state and federal officers become so regardless of their oaths and obligations as either question implies, anarchy or revolution, or both, must supervene, for the government would be a willful departure from the fundamental law of its organization, and the people would be absolved from their allegiance to it.”

To counterbalance this surprising and alarming conclusion, Justice Smith sought to demonstrate that the consequences of the alternative – granting federal power over matters covered by Article IV -- would be even more catastrophic:

“What would be thought . . . should congress pass a law to carry into effect that clause of the fourth article in regard to citizenship [i.e., the Privileges and Immunities Clause]? and declare pains and penalties against any state functionary who should fail to comply? What would be thought if congress should declare it a penitentiary offense, for any executive of a state to refuse to surrender a fugitive from justice? What state would submit to see its chief magistrate dragged before the federal tribunals, on charge of infraction of such a law . . .? And yet the power to legislate at all upon the subject, is assuming supreme and unlimited power over the whole matter. There is no middle ground.”

Ableman v. Booth IX: The Fugitive Slave Act of 1793

One counter-argument that Justice Smith addressed was the fact that in 1793 the Second Congress had passed the Fugitive Slave Act of 1793. Although the 1793 Act imposed fewer burdens than the 1850 Act, it clearly assumed that the federal government had power to deal with fugitive slaves – and thus strongly suggested that the founding generation believed or assumed that the Fugitive Slave Clause granted that power to Congress. Again, I strongly suggest that you take a look at my earlier post discussing Prigg v. Pennsylvania and the 1793 Act.

Justice Smith clearly struggled with this issue. In the end, his explanation is not persuasive. In fairness to him, it may be that there is no convincing explanation. He stated:

“The law of 1793 was in fact but little, if any more than organizing the state authorities for the constitutional duties devolved upon them. For that very reason, it passed without scrutiny . . .. It was practically nothing more than the states themselves carrying out the constitutional compact. Not until it began to be required that the states should yield up all control over these subjects, and a prostration of their sovereignty was demanded, did attention become aroused. No importance, therefore, can justly be attached to the fact that this act was passed by an early congress and was signed by the father of his country, and was acquiesced in by the states and people. It is a remarkable fact that the most startling deviations from strict constitutional limits occurred in the very earliest years of the republic. So it must always be. But time, discussion, and experience have heretofore proved adequate correctives. Added to these, state sovereignty jeopardized, federal encroachment apprehended, and consolidation menacing, can hardly fail to accomplish the desired ends.”

Ableman v. Booth VIII: The Fugitive Slave Clause As Compact Between the States

My earlier post on Prigg v. Pennsylvania will provide some background that may be useful to understanding why Associate Justice Smith believed that the Fugitive Slave Act of 1850 was unconstitutional.

Justice Smith began by reviewing the debates at the Constitutional Convention that resulted in the various provisions contained in Article IV of the Constitution, including but not limited to the Fugitive Slave Clause. He argued that the debates showed that, in Article IV, when the Convention delegated powers to Congress, it did so explicitly. For example, Section 1 of Article IV, the Full Faith and Credit Clause, specifically provided that “the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

Justice Smith argued that, except to the extent that it explicitly granted powers to the federal government, Article IV was simply a series of compacts among the states about how to handle certain matters among themselves. Those compacts did not authorize or contemplate any involvement by the federal government:

“The history [of the Constitution Convention debates relating to Article IV] is important, as it not only justifies and requires a distinction to be taken between grants of power and articles of compact, but it clearly demonstrates that the convention all along discriminated between grants of power to the government, and articles of compact between the states, and was extremely jealous and cautious in making such grants, and only did so when it was deemed absolutely necessary.”

One of those compacts was the Fugitive Slave Clause contained in Section 2 of Article IV, which stated:

"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."

This clause, Justice Smith asserted, was the result of a quiet agreement “that the states would deliver up such fugitives from labor. No power was asked for the federal government to seize them; no such power was dreamed of; the proposition that the states should respectively deliver them up, was acquiesced in without any dissent."

Later, Justice Smith quoted all of Section 2 of Article IV – the Privileges and Immunities Clause, the Extradition Clause and the Fugitive Slave Clause. “Here is the whole of the section, without one word from which a grant may be inferred or implied.”

Although Justice Smith had made a strong case for the proposition that the Fugitive Slave Clause granted the federal government no power, he still had to deal with several counter-arguments. I will turn to those next.

Ableman v. Booth VII: "I Want My Skirts to be Clear"

Associate Justice Smith had rebuked Booth and his lawyer for trying to force him to rule on the consitutional issue and then held that technical defects in the warrant entitled Booth to discharge. At this point, there was no need for Justice Smith to rule on the constitutionality of the Fugitive Slave Act of 1850.

But at this point, Justice Smith does something strange. Having escaped the need to resolve the constitutional issue, he does so anyway. I will not pause to review his reasoning for doing so, which is unpersuasive, except to the extent it implicates his understanding of the relationship between the federal and state governments.

In the course of explaining himself, Justice Smith turns back to the issue of his own jurisdiction. In effect, he suggests that he, as a state judge, rather than a federal judge, should decide the constitutional issue, because the sovereignty of the states is at issue and the federal government should not determine the extent of its own powers. I quote the following passage at some length because it is a truly remarkable summary of federalist theory given its source:

"The judicial department of the federal government is the creature by compact of the several states, as sovereignties, and their respective people. That department can exercise no power not delegated to it. All power not delegated and not prohibited to the states, the states have expressly reserved to themselves and the people. To admit that the federal judiciary is the sole and exlusive judge of its own powers, and the extent of the authority delegated, is virtually to admit that the same unlimted power may be exercised by every other department of the general government . . .. But I solemnly believe that the last hope of free representative and federative government rests with the states. Increase of influence and patronage on the part of the federal government naturally leads to consolidation, consolidation to despotism, and ultimate anarchy, dissolution and all its attendant evils.

"If the sovereignty of the states is destined to be swallowed up by the federal government; if consolidation is to supplant federation, and the general government to become the sole judge of its own powers . . ., as an humble officer of one of the states, bound to regard the just rights and powers both of the union and the states, I want my skirts to be clear, and that posterity may not lay the catastrophe to my charge. . .

"Without the states there can be no union; the abrogation of state sovereignty is not a dissolution of the union, but an absorbtion of its elements. He is the true man, the faithful officer, who is ready to guard every jot of power rightfully belonging to each, and to resist the slightest encroachment or assumption of power on the part of either."

Ableman v. Booth VI: "A Wicked and Cruel Enactment"

Having duly chastised Booth's tactics, Associate Justice Smith addressed the claimed technical defects in the warrant and proceeded to find the warrant lacking in respects that are, let us say, trivial at best. They are not worth lingering over, except to see a judge engage in hypertechnicality in order to reach a particular result. For example, the warrant stated that Booth had aided the escape of Glover, who was held in service to Garland, but it did not state that Garland had "claimed" Glover. The warrant also stated that Glover was in custody when Booth aided his escape, but it did not state that Glover "was in such custody as a fugitive from labor."

Justice Smith then explained why he was prepared to rely on such trivialities:

"No greater strictness is applied to this warrant than the law applies to all process of that class; though a much stricter rule might be justified; for this is a wicked and cruel enactment, and those who feel compelled to execute it, may well require of those who demand official service at their hands, that in taking their 'pound of flesh' they shall not 'shed one drop of christian blood.'"

(Emphasis added)

For these reasons, Justice Smith concluded that the warrant was "clearly, substantially and radically insufficient, and the petitioner is therefore entitled to a discharge."