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.'

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

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 1 Ante, p. 652.

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the constitutionality of the Act of Congress of 1850 is now called in question, that of 1793 was obnoxious to the same objection, viz., that of authorizing a summary proceeding before officers and magistrates not qualified under the Constitution to exercise the judicial powers of the general government. Congress may have thought it necessary to change the pre-existing law, not in principle but in detail, because, as we have seen in the case of Prigg v. Pennsylvania, some of the judges were of opinion that State magistrates could not act under the authority conferred on them by the Act of 1793, when prohibited from doing so by the laws of their own State, and some States had in fact passed such prohibitory laws. The present fugitive-slave law may vary in other respects, and provide other and more rigorous means for carrying its provisions into effect, but these are not made grounds of objection to its constitutionality."

As further indicating the reliance placed, on this occasion, on the position that the question had been decided by the cases under the law of 1793, the following passages from the conclusion of the Opinion are important :—

"On the whole, we consider that the question raised by the petition, and discussed in the argument before us, is settled by a course of legal decisions which we are bound to respect, and which we regard as binding and conclusive upon this court.

"The principle of adhering to judicial precedent, especially that of the Supreme Court of the United States in a case depending upon the Constitution and laws of the United States, and thus placed within their special and final jurisdiction, is absolutely necessary to the peace, union, and harmonious action of the State and general governments. The preservation of both, with their full and entire powers, each in its proper sphere, was regarded by the framers of the Constitution, and has ever since been regarded, as essential to the peace, order, and prosperity of all the United States.

"If this were a new question, now for the first time presented, we should desire to pause and take time for consideration. But though this Act, the construction of which is now drawn in

question, is recent, and this point, in the form in which it is now stated, is new, yet the solution of the question depends upon reasons and judicial decisions, upon legal principles and a long course of practice, which are familiar, and which have often been the subject of discussion and deliberation.

"Considering, therefore, the nature of the subject, the urgent necessity for a speedy and prompt decision, we have not thought it expedient to delay the judgment. I have, therefore, to state, in behalf of the court, under the weighty responsibility which rests upon us, and as the unanimous opinion of the court, that the writ of habeas corpus prayed for cannot be granted."

§ 888. Subsequently to this decision of the Supreme Judicial Court of the State, another application for habeas corpus was made to Judge Sprague, of the United States District Court, on the "ground that the law was unconstitutional, particularly in giving jurisdiction to commissioners." IV. Mon. L. R. 10. "After a full hearing, the judge gave his Opinion, sustaining the constitutionality of the law, and the writ was refused." (Ib.) No written Opinion appears to have been published.'

'Application was also made to Judge Woodbury, the United States Circuit Judge, for a writ, but on grounds having no connection with the circumstance that Sims was claimed as a slave. IV. Mon. L. R. 13.

On the 7th of April, 1851, Judge Nelson, as U. S. Circuit judge, considered very fully the constitutionality of the law of 1850, in a charge to the grand jury of the Southern District of New York, which is given in 1 Blatchford's R. App., from which the following passage, ib. 643, is taken:-"It has been made a question upon this Act, whether or not it was competent for Congress to confer the power upon the United States commissioners to carry it into execution. As the judicial power of the Union is vested in the Supreme Court, and such inferior courts as Congress may from time to time establish, the judges of which shall hold their offices during good behavior, it has been supposed that the power to execute the law must be conferred upon these courts, or upon judges possessing this tenure. It is a sufficient answer to this suggestion, that the same power was conferred upon the State magistrates under the Act of 1793, and which, in the case of Prigg v. The Commonwealth of Pennsylvania, was held to be constitutional by the only tribunal competent, under the Constitution, to decide that question. No doubt was entertained by any of the judges in that case but that these magistrates had power to act, if not forbidden by the State authorities. The judicial power mentioned in the Constitution, and vested in the court ordained and established by and under the Constitution in the strict and appropriate sense of that term:-courts that comprise one of the three great departments of the government, prescribed by the fundamental law, the same as the other two-the legislative and the executive. But, besides this mass of judicial power belonging to the established courts of a government, there is no inconsiderable portion of power,