now to be considered are also authorities on the general question which arises under either law.

$887. The earliest case in which judicial opinion was expressed in regard to the constitutionality of the Act of 1850 is that of Sims, who, in April, 1851, in the city of Boston, was arrested on a warrant issued by George T. Curtis, Esq., United States commissioner, who after hearing the owner's claim, committed Sims to the custody of the United States marshal, preparatory to his removal from the State under the commissioner's certificate. Various proceedings were then had in his behalf to remove him from this custody, which are detailed in IV. Monthly Law Reporter, pp. 1-16. Of these several proceedings, there were two which elicited judicial opinion in respect to the constitutionality of the Act of 1850. The first of these was a petition of Sims, to the Supreme Judicial Court of Massachusetts, for a habeas corpus and to be discharged from the custody of the marshal.

The Opinion of the court in giving a unanimous decision affirming the validity of the marshal's custody was delivered by the Chief Justice, the late Lemuel Shaw. As was to be expected from the great respect previously accorded to the opinions of that distinguished judge as well as to the decisions of the court-a court second to that of no other State in judicial eminence the decision has since been regarded of the highest authority,-to that degree that, in the opinions of judges who in later cases have maintained the action of a commissioner in like circumstanees, it has been taken to preclude all further juristical discussion. In this Opinion, after examining certain questions of the practice in writs of habeas corpus, Judge Shaw says, 7 Cushing, 294:-"It is now argued that the whole proceeding, as it appears upon the warrant and return, is unconstitutional and void, because, although the Act of Congress of 1850 has provided for and directed this course of proceeding, yet that the statute itself is void, because Congress had no power, by the Constitution of the United States, to pass such a law and confer such an authority. The ground of argument leading to this conclusion is, that it is not competent for Congress, under the power of legislation vested in them by the

Constitution, to confer any authority, in its nature judicial, upon any persons, magistrates, or boards, other than organized courts of justice, held by judges, appointed as such, and to hold their offices during good behavior, and paid by fixed salaries; whereas the commissioners designated by the law in question do not hold their offices during good behavior, nor are they paid by fixed salaries. This is the argument.'

He then considers the occasion and nature of the constitutional provision and the purpose of the Act of Congress. From this portion of the Opinion extracts bearing on the questions of construction and of the power of Congress have been cited (ante, pp. 497-500). The residue of the Opinion relates principally to the question of the validity of the action of the United States commissioners. Judge Shaw says, on this point, 7 Cushing, 302 :-"By the Act of 1793, the authority of issuing a warrant to arrest a fugitive from labor, of inquiry into the fact both of owing labor and of having escaped, and of granting a certificate, is conferred on justices of peace appointed for a term of years, and without salary, by the State government, or on the magistrates of cities and towns corporate. It is very manifest, therefore, that these powers were not deemed judicial, by the Congress of 1793, in the sense in which it is now insisted that the commissioner, before whom the petitioner has been brought, is in the exercise of judicial powers not warranted by the Constitution, because not commissioned as a judge, and holding his office during good behavior. Indeed it is difficult, by general terms, to draw a precise line of distinction between judicial powers and those not judicial. It is easy to designate the broad line, but not easy, the minute shades of difference between them. Those officers who hold courts and have civil and criminal jurisdiction, beyond doubt, exercise judicial powers. But there are, under every government, functions to be exercised, partly judicial and partly administrative, which yet require skill and experience, judgment, and even legal and judicial discrimination, which it is more difficult to classify. So under our own

The point was urged before the commissioner and before the court by the counsel, Mr. R. Rantoul, Jr. See IV. Mon. L. R. 4; 7 Cush. 287.

government, in the Constitution of which a similar provision is found, requiring all judicial officers, excepting justices of the peace, to be commissioned and hold their offices during good behavior, we find many such cases. Such are bank commissioners, county commissioners, sheriffs, when presiding over and instructing juries empanneled to assess road-damages and damages for flowing land; commissioners of insolvency on the estates of deceased persons, and living insolvent debtors, masters in chancery, and many others.

"Now, as far as we understand it, commissioners of the Circuit Court of the United States are officers exercising functions very similar to those of justices of peace under the laws of the Commonwealth. They are commonly appointed from among counsellors-at-law, and of some standing, and well reputed for professional skill and experience. Their duty is, to inquire into violations of the laws of the United States, to hear complaints, issue warrants, hold examinations, and bind over or commit persons for trial for offences. These are functions requiring considerable skill and experience in the administration of justice, and it is just to presume that they are duly qualified to perform their duties. "Would it not be competent for Congress, under the powers vested in the general government, to provide by law for the appointment of justices of the peace, in each district, to be vested with powers under the laws of the United States analogous to those exercised under State laws, by justices of peace under the State government, without commissioning them as judges during good behavior, and giving them fixed salaries?

"At the same time it may be proper to say, that if this argument, drawn from the Constitution of the United States, were now first applied to the law of 1793, deriving no sanction from contemporaneous construction, judicial precedent, and the acquiescence of the general and State governments, the argument from the limitation of judicial power would be entitled to very grave consideration.

"But we are not entitled to consider this a new question, we must consider it settled and determined by authorities. which it would be a dereliction of official duty and a disregard of judicial responsibility to overlook.

"We have already referred to the great weight to be given, in the exposition of statutes, to what may be regarded as contemporaneous construction; and this construction is of the more importance when the question turns upon the constitutionality of a legal enactment, made soon after the adoption of such Constitution, and for the avowed purpose not only of conforming strictly to the powers given by the Constitution, but of carrying out the very objects and purposes contemplated by it. To this is now to be added an acquiescence both of the State and general governments, of their representatives and people, for nearly sixty years, and a series of judicial decisions by the highest courts of our own and of the other States; and also of the Supreme Court of the United States, whose authority upon controverted questions, within their jurisdiction, and declared by their judgments, is binding upon the judges of State courts."

Judge Shaw then cites certain cases under the law of 1793, as if he considered them authorities on this question of the exercise of judicial power by the commissioners. The cases thus cited are Commonwealth v. Griffith, 2 Pick. 11; Wright v. Deacon, 5 Serg. and Rawle, 62; Jack v. Martin, 12 Wend. 311; Hill v. Low, 4 Wash. C. C. R. 329, and Prigg's

case.

It is not material to notice anything in Judge Shaw's statement of the earlier cases except this that he does not attempt to distinguish their several bearing on the different questions which were involved in the case then before him. As has been shown, they differ very materially in this respect.1

It is, however, necessary to examine critically Judge Shaw's statement of the bearing of the opinions of the judges of the Supreme Court, in Prigg's case, upon the question which is considered in this chapter.

Judge Shaw, 7 Cushing, 306, says :-"There was some difference of opinion among the judges upon minor points, but none, it is believed, upon the subject now under consideration, the constitutionality and binding force of the Act of Congress

'Compare the summary, ante, pp. 630, 631 and notes.

of 1793, and especially that part of it which confers an authority on circuit and district judges, and on county and city magistrates, to take a summary jurisdiction in the manner provided by the Act of 1793. Some of the majority were of opinion that Congress could not, by its own enactments, require State officers, such as magistrates of counties, cities, and towns corporate, to take upon themselves the duty of exercising such jurisdiction; but they conceded that the law conferred a sufficient authority on them to act, if they should think fit to do so, voluntarily, and if they were not restrained by State legislation. On the other hand, Mr. Justice McLean, agreeing to the general rule, as to State officers, was of opinion that, under the peculiar circumstances, Congress had the power to enforce this duty upon magistrates, and that they were not at liberty to decline it, but were legally bound to execute it."

On comparison of this citation with the analysis which has already been given of the Opinions of the several justices in that case, it may be questioned whether Judge Shaw was warranted in making such a statement of the bearing of the opinions in Prigg's case upon this point. So far as any State officers are in those Opinions spoken of as capable of acting as provided by the Act of 1793, they are called State magistrates; in no instance is it said that county and city magistrates, or State officers, such as magistrates of counties, cities, and towns .corporate, might take upon themselves the duty of exercising such jurisdiction.

For reasons already stated, it is herein maintained that, whoever may have been the persons designated in the Act of Congress, there is no warrant for saying that the Supreme Court of the United States, in Prigg's case, intended to justify the action of any State magistrates other than such as were capable of acting in virtue of the judicial power of the State.'

After a further statement of differences of opinion in Prigg's case, Judge Shaw says, 7 Cush. 308:-"We have thought it important thus to inquire into the validity and constitutionality of the Act of 1793, because it appears to be decisive of that in question. In the only particular in which 1Ante, p. 652.

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