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.