the judicial action of the commissioner. In this case, the objection against the action of the commissioner, as being an exercise of judicial power, seems not to have been made, and the counsel for the claimant relied upon the principle, " that when, by a court of competent jurisdiction, a judgment in its nature final has once been pronounced, it cannot be reviewed on habeas corpus " (relying chiefly on Ex parte Watkins, 3 Peters, 193). See IV. Monthly L. R. 306. Judge Conckling, ib., 307, recognizing the principle, and referring to the language of the sixth section of the Act, which declares the conclusiveness of the certificate, said:"Now, whatever ground for doubt, if any might have existed, independently of this enactment, concerning the legal force and effect of these certificates, it may, I think, be safely assumed that it was intended by Congress to place them, in this respect, substantially on the footing of judgments rendered by judicial tribunals in cases within their jurisdiction.""

§ 892. On the trial of Allen, the United States Deputy Marshal, at Syracuse, New York, June 21, 1852, under the law of the State, for kidnapping the slave Jerry, the warrant issued by a United States Commissioner, and the arrest and custody under the warrant were specially pleaded. The supposed fugitive had been rescued from the marshal's custody before the claim could be heard and a certificate given by any court or commissioner. Judge Marvin's charge sustained the lawfulness of the custody under the warrant (ante, p. 60, note). But, strictly speaking, the right of a claimant under such a certificate to remove from the State a person claimed as a fugitive, was not involved in the decision of the case before Judge Marvin.'

1 In McQuerry's case (1853) 5 McLean, 469, ante, p. 501, Judge McLean said, ib. 481: The powers of the commissioner, or the amount of the penalties of the Act are not involved in this inquiry. If there be an unconstitutional provision in an Act, that does not affect any other part of the Act. But I by no means intimate that any part of the Act referred to is in conflict with the Constitution. I only say that the objections made to it do not belong to the case under consideration."

2

* But the judge thought it necessary to consider the validity of the entire proceeding before a commissioner as contemplated by the Act. His view of the character of the commissioner's action is given as follows:-"It is further objected that the office of the commissioner is a judicial office, and that he is to adjudicate the question whether the fugitive was held to service or labor; in other words, whether

Certain persons charged with rescuing Jerry were held to bail Oct. 21, 1852, in the Western District of New York, by Judge Conckling, who is reported in the Syracuse Journal, Oct. 22, to have said, "The proceeding on the part of both the commissioner and the deputy-marshal appear to have been entirely regular. The fugitive was therefore lawfully restrained of his liberty by due process of law."

The case Henry v. Lowell and others, 16 Barbour, 269 (argued April 3, 1853), was an action of trespass against the defendants for having assisted the marshal on the occasion above mentioned. The validity of the Act in all respects was affirmed as established by previous cases. By the Court, Gridley, J., "It is insisted in the printed points submitted by the plaintiff's counsel, that the Act of Congress known as the fugitive slave Act is unconstitutional and void, and therefore that the defendant cannot justify under it. It is not, however, explained in what respect or on what grounds the Act in question is in violation of the Constitution. The former Act (of 1793) was adjudged to be in harmony with the Constitution in the case of Prigg (16 Peters, 539), by the highest tribunal known to our law, and that decision has been reaffirmed in

he is a slave or a freeman. The statute has not been understood as creating a judicial officer or court. My attention is directed particularly to the sixth section of the Act. It contains many particulars, and its language is not very clear. It provides that the commissioner may take depositions or affidavits in writing, and he is to certify them, or he may receive other satisfactory testimony which has been duly taken and certified by a court, magistrate, justice of the peace, or other legal officer authorized to administer an oath and to take depositions under the laws of the State from whence the person owing service escaped. He may receive proof, also by affidavit, of the identity of the person, and that he owes service or labor of the person claiming him, and that the person escaped, and, upon such satisfactory testimony, he is to make out and deliver to the claimant a certificate setting forth the substantial facts, as to the service or labor due from such fugitive to the claimant, and of his escape, with authority to such claimant to take and remove the fugitive to the State from which he escaped. The commissioner receives the depositions or affidavits, or testimony duly taken in another State, and if they are such as the statute requires, and establish the particulars mentioned in the statute, the commissioner must give the certificate which sets forth the facts appearing before him, and certifies to the authority of the claimant or his agent to remove the fugitive. He pronounces no judgment, he decides nothing except that the depositions, affidavits, and certified testimony are according to the statute and satisfactory; and he certifies the facts, with authority to remove. A case for removal being made out, the certificate is given. The rights of the person claimed to freedom are not concluded by these proceedings, in the State to which he is taken. There he can have a trial by and under the laws of that State, and the proceedings before the commissioner cannot be used as a judicial determination of the fact that he is a slave."-Pamphlet Report, pp. 96, 97.

the 5th of Howard's R. 215 (Jones v. Van Zandt). No important distinction has been pointed out by the counsel between that Act and the law of 1850, and we do not perceive any bearing on the question of its constitutionality. In several cases that have occurred, the provisions of the present law have been drawn in question, and the Act has been declared constitutional by Justice Curtis and Justice Nelson' of the Supreme Court of the United States, and by other eminent judges before whom the question has been raised. This uniform current of authority may well excuse us from a discussion of the question upon principle."

893. In Booth's case (1854), 3 Wisc. 1, the relator was held by the United States Marshal under a mittimus issued by a United States Commissioner, for violation of the law of 1850, in having unlawfully aided, &c., a person named Joshua Glover, the alleged fugitive slave, to escape from the custody of the United States Deputy-Marshal, who "had then and there arrested and taken into custody the said Joshua Glover, by virtue of a warrant issued by the Judge of the United States for the said district, pursuant to the provisions of the Act of Congress in that case made and provided, approved Sept. 18, 1850," &c. In this case, therefore, there was not even any custody under a certificate given by a judge, and there had been no action by a commissioner in respect to the delivery of the

In referring to Judge Curtis as having sustained the validity of the Act, the court may have relied on his Opinion given as counsel for the U. S. Marshal (ante, p. 538), but more probably to his judicial action in the case United States v. Morris (Oct. 1851), in the Circuit Court for the first circuit, in which the defendant appears to have been indicted under the Act for a misdemeanor in the rescue of the slave Shadrach, while in custody under a commissioner's warrant. The question whether the jury could decide on the validity of the Act, was considered. Judge Curtis decided that they could not. The constitutionality of the law is not considered in the Opinions delivered by Judge Curtis on that occasion, which are reported in 1 Curtis, 23. The judge did, however, instruct the jury that so much of the Act of Congress as gave jurisdiction to commissioners, was constitutional. In certain charges to grand juries, given in App. to 2 Curtis, the subject of treason and resistance to the execution of the laws of the United States is presented. But the fugitive-slave law is not named. In citing Judge Nelson's authority, the reference undoubtedly is to the charge delivered in the southern district of New York, given in 1 Blatch. App. (ante, p. 659). Judge Nelson delivered, in the northern district, Oct. 21, 1852, another charge, given 2 Blatch. App. This has reference particularly to the offence of forcibly resisting the law. The judge's remarks are principally directed to the importance of the provision and the duty of fulfilling its obligations: speaking of it as a compact between the States.

alleged slave, so that the question of the validity of a custody under a commissioner's certificate was not strictly before the court. Judge Smith, who decided in the first instance on the petition of the relator, did not make any reference to the powers of commissioners. He, however, in 3 Wisc., 37-40, maintained that a judicial determination of the claim, as contrasted with any summary proceeding, is contemplated by the provision. He there observes:

"Again, it is to my mind apparent, that the provision of the Constitution in regard to fugitives from labor or service, contemplates a judicial determination of the lawfulness of the claim which may be made..

"Mr. Butler, of South Carolina, who reported the clause for the first time, Aug. 29th, 1787, framed its conclusion as follows: but shall be delivered up to the person JUSTLY claiming their service or labor.' How was the justice of the claim to be ascertained? Who were to determine it? Fugitives were not to be discharged in consequence of any law or regulation of the States to which they may have fled.. Not discharged by whom? The federal government? No, but by the States, in consequence, or by virtue of any law or regulation therein. But shall be delivered up.' By whom? Evidently by the same power which had covenanted not to discharge them. Shall be delivered up by the States, not seized by the federal government.

"The clause as finally adopted reads, but shall be delivered up on claim of the party to whom such service or labor is DUE.' Here is a fact to be ascertained, before the fugitive can be legally delivered up, viz.: that his service or labor is really due to the party who claims him. How is the fact to be ascertained? A claim is set up to the service of a person. He who makes the claim is denominated by the Constitution a party. The claimant is one party, the person who resists is another party. If he really owes the service according to the laws of the State from which he is alleged to have escaped,

1 In a passage immediately following that which has been cited as bearing on the question of construction. (Ante, p. 512.) Indeed, the passage here cited bears also on that question.

If the

and has in fact escaped, he must be delivered up. claim is unfounded, he cannot be delivered up. The Constitution itself has made up the issue, and arranged the parties to it. Can any proposition be plainer, than that here is sus pended a legal right upon an issue of fact, which can only be determined by the constitutional judicial tribunals of the country? It bears no analogy to the extradition of fugitives from justice. In the latter case, no issue is presented by the Constitution. Judicial proceedings have already been commenced, and this is but a species of process to bring the defendant into court. No claim is to be determined. He is to be delivered up, from the mere fact that he is charged, to be removed to the State demanding him for trial. He is placed in the custody and under the protection of the law, in the regular course of judicial proceedings. But in the former case, there can be no delivery until the claim is tried and determined, and then the fugitive is delivered, not into the custody of the law, but into the possession and control of the party who has established his claim; not to be removed to another State or tribunal for trial, with the shield of the law over him, but to be reduced, without further process or trial, to absolute subjection, to be taken whithersoever the claimant may desire. In the one case, the proceedings are commenced and terminated where the claim is made; in the other, the suit is commenced where the offence is committed, and the law sends out its process to bring in the defendant to meet the charge. While that process is being served, through all its mutations, he is as much under the protection of the law as he who executes it, and, in its eye, both are equal.

"Here, then, is a fact, an issue, to be judicially determined before a right can be enforced. What authority shall determine it? Clearly the authority of the State whose duty it is to deliver up the fugitive when the fact is determined. Until the issue which the Constitution itself creates is decided, the person is entitled to the protection of the laws of the State. When the issue is determined against the fugitive, then the constitutional compact rises above the laws and regulations of the State, and to the former the latter must yield.