"To my mind this is very clear and simple. The whole proceeding is clearly a judicial one, and I will not stop here to demonstrate what, from the preceding remarks, appears so obvious. The law of 1850, by providing for a trial of the constitutional issue between the parties designated thereby, by officers not recognized by any constitution, State or national, is unconstitutional and void."

§ 894. Judge Smith proceeds, in a passage which will be cited in the next chapter, to consider the objection of want of a jury trial. The two questions are cognate, and in the Opinion of the full bench on the certiorari, they are discussed together by Chief Justice Whiton, so that it is not easy to separate the arguments. The Chief Justice examines particularly the question of the power of the commissioners in the passage here cited from 3 Wisc. 64-66.

"It becomes, therefore, our duty to decide whether so much of the Act of Congress of September 18th, 1850, as provides that certain officers, called commissioners, shall decide the questions of fact which must be proved before the surrender of the alleged fugitive can take place, is valid and obligatory. We think that we are also called upon to decide whether the proceedings provided for in the Act for establishing judicially the fact of the escape of the alleged fugitive, and the fact that he owes service or labor, are in conformity with the Constitution of the United States. These questions are most grave and important; we would that we could avoid them, but they are forced upon us, and we are not at liberty to refuse to consider them.

"We are of opinion that so much of the Act of Congress in question as refers to the commissioners 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,-1st, because it attempts to confer upon those officers judicial powers; and 2d, because it is a denial of the right of the alleged fugitive to have those questions tried and decided by a jury which, we think, is given him by the Constitution of the United States. We have re

ferred to the case of Martin vs. Hunter's Lessee (1 Wheaton p. 305), and to Art. 3, sec. 1, of the Constitution of the United States, to show that Congress can not vest any judicial power under the Constitution except in courts. We are aware that Congress has established courts in the various territories, and has provided for the appointment of judges with a different tenure of office from that fixed by the Constitution; but the power to appoint these judges is supposed to be derived from Art. 4, sec. 3, of the Constitution, which provides that 'Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property of the United States.'

"But, however this may be, we are not aware that the authority to vest any portion of the judicial power in any tribunals created by itself, except those mentioned in section 1 of Art. 3 of the Constitution, is claimed for Congress by any one, save in the single instance of judicial officers for the Territories belonging to the United States, and for the District of Columbia. We think that the duties performed by the commissioners under the Act in question are judicial in their character; as clearly so as those performed by a judge in the ordinary administration of justice. He is obliged to decide upon the questions presented, judicially, and to give a certificate to the person claiming the alleged fugitive, which authorizes his transportation to the State from whence he is alleged to have escaped, or withhold it, as he shall think proper, in view of the evidence submitted for his consideration. It is true that the Act, by providing that the record made in the State from whence the alleged fugitive may have escaped shall be conclusive evidence of the escape, and of the fact that the person claimed owes service or labor to the claimant, materially lessens the labor of the commissioner, but this does not alter the nature of the act which he performs; it must be regarded as a judicial determination of the matter submitted to him. We are therefore of opinion that the act under consideration, by attempting to vest judicial power in officers created by Congress and unknown to the Constitution, is repugnant to that instrument, and for that reason void."

§ 895. Judge Crawford, after referring to the objections made to the power exercised by the commissioners, and to the want of a jury trial, says (3 Wisc. 80):-"The force of argument which has been brought to bear, as well against as in favor of the constitutionality of the Act of 1850 in respect to these questions, has, I confess, raised doubts in my mind, but it has failed to produce that conviction which should justify a court or judge to pronounce a legal enactment void, because unconstitutional, and I am therefore unable to concur in the opinion that this law is unconstitutional.

"I shall briefly state my views upon these questions. *** To my mind, the granting of these certificates upon satisfactory proof being made,' looks very like the exercise of judicial functions, because, although the granting of the certificate is merely a ministerial act, yet the determination upon the sufficiency of the proof would seem to involve judicial power. And in this connection it is urged that Congress cannot confer judicial power otherwise than," &c. (stating the objection). "But the judges of several of the Territories of the United States, who hold their appointment from the President, are not appointed to hold during good behaviour; 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.

"It is said, territorial judges are appointed under the power given to Congress by the second clause of section three of Article four of the Constitution, on the ground that the establishment of a judiciary for the territories is a necessary incident to the acquisition of territory, and the power to make all useful rules and regulations for those territories; but if the power to legislate upon the subject of fugitives from labor be vested in Congress, it would seem that the performance of judicial acts might be vested in other than judges or courts, under the constitutional provision (article three, section one,) in such a case, as in the case of newly organized territories.

"But it has been repeatedly held, that where, by an act of Congress, State courts or magistrates are authorized to perform acts of a judicial character arising out of the acts of Congress, they may lawfully do so if not prohibited by the State law.

"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.

"But there certainly is a degree of force in the objection that the power to hear and determine complaints and summary applications, which may, and often do involve important rights of personal liberty, and require the exercise of much professional experience and wisdom, ought not to be vested in the class of officers who are known as commissioners of the federal courts, who hold their offices at the pleasure of the courts; and although in many instances gentlemen of acknowledged ability fill these offices, yet this of itself affords no complete answer to the objection."

Notwithstanding, then, Judge Crawford's dissent from the judgment of his associates,' his opinion indicates his belief that the commissioners do exercise the judicial power of the United States; and, if the view of the power exercised by State magistrates given in the former part of this chapter is correct, the only reason which he gives for holding that the power may be conferred on commissioners falls to the ground; for he assumes that the judicial power exercised by those magistrates was derived from Congress, whereas, in fact, it was derived from the State."

§ 896. The language of Chief Justice Taney in Ableman v. Booth, 21 How. 526, affirming, in the name of the Supreme Court of the United States, the validity of all the provisions of the law of 1850, has already been cited.'

§ 897. In Ex parte Robinson (April, 1855), 6 McLean, 355, the prisoner was charged with having, under a commissioner's warrant, arrested, as a fugitive from labor, a girl who had been set at liberty by the State courts. There was no certifi

1 Ante, p. 504.

VOL. II.-43

2 Ante, p. 652.

'Ante, p. 523.

cate whose validity could be in question. Judge McLean, discharging the prisoner, in his Opinion, ib. 359, says :-"The nature of the duties of the commissioners under the Act of 1850, is not in principle different from those which they previously discharged. The inquiry of a commissioner or judge under the fugitive Act is not strictly whether the person is free, but whether he owes service to the claimant. In its results, the inquiry may involve the liberty of the fugitive; but the principle applies to an apprentice as well as to a slave.'

"It must be admitted that the inquiry is somewhat in the nature of judicial power; but the same remark applies to all the officers of the accounting departments of the government. They investigate claims and decide on the evidence. The examiners in the patent office determine the merits and novelty of inventions. This becomes a judicial duty in every suit between conflicting patents. It is impracticable, in carrying on the machinery of government, to prescribe precise limits to the exercise of executive and judicial power in deciding upon claims. The Supreme Court has had the acts of these commissioners before it, and has always treated them as having authority under the law."2

§898. In the case of Bushnell and Langston (1858), 9 Ohio, 77, the question of the validity of a certificate given by a commissioner could not have arisen under the facts. The indictments were for rescuing a supposed fugitive from those who had seized him without warrant, and also for rescuing from the marshal who had arrested him under a commissioner's warrant, to be brought before such commissioner (ib. 83, 89). The constitutionality of the law of 1850, in respect to the action of a commissioner, was not examined by Swan, Ch. Justice, who considered the only question to be whether

This seems to have been a favorite distinction with Judge McLean. See citation from McQuerry's case, ante p. 571, note 2.

2 Could Judge McLean have intended to say that the validity of a commissioner's action, under the law of 1850, had at this time been passed upon by the Supreme Court of the United States? To the parallel which is here drawn it may be answered that, until an inventor has got his patent, he has no legal right in his invention. The Judge ignores the manifest distinction between the inventor asking a patent from the Government, and the patentee claiming rights against private persons under the law of patent. As to the settlement of accounts with the Government, the remarks, ante, p. 622, will apply.