Congress had power to legislate at all on the subject.' Judge Peck, ib., p. 215, held that "the question as to the legality of the acts of a commissioner" could not arise on the record of

these cases.

Judge Brinkerhoff, ib., p. 222, says: "The Acts of Congress referred to, clearly attempt to confer on these commissioners the powers and functions of a court-to hear and determine questions of law and of fact, and to clothe their findings and determinations with that conclusive authority which belongs only to judicial action. And the issue of the warrant mentioned in the indictment was a judicial act."

Judge Sutliff states the objection specifically, ib. 251, 252, and holds that the commissioner "is utterly incompetent, under the Constitution, to give final judgment of extradition from the State against any of her citizens, or any person residing within the State and entitled to the protection of her laws."

$899. The foregoing appear to be the only judicial decisions, or the principal decisions which, in supporting the constitutionality of the law of 1850, examine the question of the power of the United States commissioners under that law, or of the State magistrates under the law of 1793.

3

For reasons already stated, the opinions of gentlemen holding the office of commissioners cannot be placed on the same ground with judicial authorities. Every commissioner who has entertained an application for a certificate under the law of 1850, has, of course, given the weight of his opinion in favor of the constitutionality of that Act. But the only cases in

1 Ante, p. 523, 9 Oh. 185, Swan, C. J.:-" Neither the case before us, nor the question thus broadly presented, requires us to consider or determine the power of the court to appoint commissioners, or the provisions of the law of 1850, which have been the subject of discussion and condemnation, and which have so deeply agitated the public mind."

In this last assertion, and in further asserting, p. 223, that this warrant was a nullity, Judge Brinkerhoff goes far beyond the ordinary limits of the objection. It is the granting of the final certificate authorizing a removal from the State, which is alone objected to, ordinarily, as an exercise of judicial power; not the issuing of a warrant to arrest, preparatory to a hearing.

Ante, § 782. In the case of the fugitive John Bolding, delivered up in New York, August 1851, by Mr. Commissioner Nelson, the question of the constitutionality of the law was not raised nor the power contested. The ground of controversy has been noted in another place. (Ante, p. 407.)

which the question has been considered in a formal decision, such as could be reported, seem to have been that of Sims, before George T. Curtis, Esq., and of Burns, before Edward G. Loring, Esq.

900. It has already been observed that Mr. Curtis, in this decision,' followed very closely the opinion delivered by Judge Story, in Prigg's case, and that construction of the provision according to which the claim is made on the national Government, which only makes "that surrender which it has stipulated to make." Mr. Curtis, like Judge Story, declares that there is "a case" under the Constitution "between the parties," which case, indeed, comes within the judicial power; but that

1

Ante, p. 581, n. 2; IV. Mon. L. Rep. 6. "The commissioner, in giving his Opinion, admitted that a claim for a fugitive slave was a case between parties arising under the Constitution of the United States, and that it belonged to the judicial power of the United States, and maintained that, as it belonged to the judicial power of the United States, it was for Congress to decide in what mode, to what extent, and under what forms of proceeding that judicial power should be called into exercise, in order to give effect to the right of the owner claiming a fugitive slave. The question to be decided was, whether the form of procedure, authorized by the Act of Sept. 18, 1850, was such a form of exercising the judicial power as it was competent for the general government to employ.

In all governments formed upon the English model, and having their executive, judicial, and legislative departments distinct, there is in the administration of the laws a certain class of inquiries, judicial in their nature, but which are confided to officers not constituting a part of the judiciary strictly so called.

"A master in chancery, in England, performs duties in their nature judicial, yet he has never been regarded as a judge. So a sheriff in England has a judicial capacity, and performs several judicial functions (1 Bl. Comm. 343), yet a sheriff is only appointed for a year, and receives no salary. In Massachusetts, the law has made it the duty of the sheriff, when presiding at trials by juries summoned to assess damages for laying out highways, to direct the jury on all questions of law arising at the trial. So auditors, commissioners in insolvency, and county commissioners, exercise a judicial power. The practice, then, in Massachusetts, shows that it is well understood that there are certain judicial functions having special objects which are and must be exercised by inferior officers, not appointed, commissioned, or qualified, as the Constitution of the State requires judges to be appointed, commissioned, and qualified. So under the laws of the United States, the same usage has prevailed. The commissioner of patents exercises judicial power. His decision upon claims of rival inventors involves the adjudication of matters of law and of fact, and moreover, is final as to a present right. No one has ever thought of complaining of the creation of this office as an improper mode of exercising the judicial power of the United States. Commissioners of the Circuit Court of the United States, were first appointed to take bail and affidavits in civil cases. Afterwards authority was given them to take depositions to be used in the courts of the United States. Nine years since their powers were further extended to enable them to arrest and imprison for trial, persons committing offences against the laws of the United States. During this period they have been in the constant exercise of a part of the judicial power of the United States. Their decision in such cases is final and conclusive for a special purpose, and settles a present right. It has never been intimated that they should have been first appointed by the President and commissioned for life."

the commissioner's or judge's action in this case is an act purely ancillary to the judicial. However, as according to his theory, the Government, which is one of the parties, is only doing by its agent, the commissioner or judge, what it has stipulated to do, and that for which, in the supposed "case," an appeal was to have been made to the judicial power, it is difficult to see how the judicial power has the case before it at all; or how the commissioner's action can be ancillary to something which is never to act at all. Either the parties have acted without reference to the judiciary, and there has been no "case," or the commissioner has acted for the judiciary throughout, in a case supposed to be within the judicial power.

§ 901. In the case of Anthony Burns, May 25, 1854, no application was made to any judicial tribunal, either State or national. Mr. Loring not only declared his action to be purely ministerial,' but also, with perfect consistency, stated plainly

VIL Monthly L. R. 204. "The arrest of the fugitive is a ministerial, and not a judicial act, and the nature of the act is not altered by the means employed for its accomplishment. When an officer arrests a fugitive from justice, or a party accused, the officer must determine the identity, and use his discretion and information for the purpose. When an arrest is made under this statute, the means of determining the identity are prescribed by the statute, but when the means are used and the act done, it is still a ministerial act. The statute only substitutes the means it provides for the discretion of an arresting officer, and thus gives to the fugitive from service a much better protection than a fugitive from justice can claim under any law.

"If extradition is the only purpose of the statute, and the determination of the identity is the only purpose of these proceedings under it, it seems to me that the objection of unconstitutionality to the statute, because it does not furnish a jury trial to the fugitive, is answered; there is no provision in the Constitution requir ing the identity of the person to be arrested should be determined by a jury. It has never been claimed for apprentices nor fugitives from justice, and if it does not belong to them, it does not belong to the respondent. And if extradition is a ministerial act, to substitute in its performance, for the discretion of an arresting officer, the discretion of a commissioner instructed by testimony under oath, seems scarcely to reach to a grant of judicial power, within the meaning of the United States Constitution. And it is certain that if the power given to and used by the commissioners of the United States courts under the statute is unconstitutionalthen so was the power given to and used by magistrates of counties, cities, and towns by the Act of 1793.

"These all were commissioners of the United States-the powers they used under the statute were not derived from the laws of their respective States, but from the statute of the United States. They were commissioned by that and by that alone. They were commissioned by the class instead of individually and by name, and in this respect the only difference that I can see between the Acts of 1793 and 1850 is that the latter reduced the number of appointees and confined the appointment to those who, by their professional standing, should be competent to the performance of their duties, and who bring to them the certificates of the highest judicial tribunals of the land."

the proposition, upon the correctness of which all those decisions depend which decide this question by referring to the decisions under the law of 1793-the proposition that the action of the State magistrates under the earlier law was an exercise of power politically derived from the United States. In this Mr. Loring followed Judge Shaw's reasoning in Sims' case.

§ 902. A portion of the Opinion of Attorney-General Crittenden, which has already been referred to, is very remarkable as containing a recognition of the judicial character of the action of the judges and commissioners under the Act of 1850.'

903. The advisory Opinion of Nov. 9, 1850, given by B. R. Curtis, Esq., as counsel for the United States Marshal, was especially directed to the question "whether a warrant and certificate from a commissioner, pursuant to the Act of 1850, are valid and effectual in law to justify the Marshal."*

904. From this historical exposition of authorities bearing on the question, whether the action required of the com

1 Ante, p. 531. 5 Op. of Atty.-Gen. 255:-"The sixth, and most material section, in substance, declares that the claimant of the fugitive slave may arrest and carry him before any one of the officers named and described in the bill, and provides that those officers shall have judicial [italics in the original] power and jurisdiction to hear, examine, and decide the case in a summary manner; that if upon such hearing the claimant, by the requisite proof, shall establish his claim to the satisfaction of the tribunal thus constituted, the said tribunal shall give him a certificate." &c. And on page 539:-" All the proceedings which it [L. e., this section of the Act] institutes are but so much of orderly judicial authority interposed between 'the slave and his owner.' " This was referred to by Mr. Rantoul in Sims' case, 7 Cushing, 289. Indeed, Mr. Crittenden's whole argument, in maintaining that the clause does not violate the constitutional guarantee of the writ of habeas corpus, rests on the assumption that the person claimed as a slave will be held in custody to await the decision of a judicial tribunal or under its decree. It seems probable that the objection to the Act as contrary to the constitutional limitation of the judicial power, was never raised before its enactment. It may have been the intention of Congress (blunderingly) to vest the judicial power. The Legislature of Virginia, Feb. 7, 1849, adopted report of a committee, concluding:-"This committee would thereforere commend that an earnest effort be made, through the senators and representatives of this State in the Congress of the United States, to procure such amendments to the law of 1793, as shall confer, 1st, upon every commissioner" and other persons mentioned, as postmasters and collec tors, "authority now granted to the judges of the circuit and district courts of the United States, to give to the claimant of a fugitive slave the certificate authorized by said Act, and to make the duties therein prescribed, mandatory;" and 4th, "To authorize all the officers clothed with judicial powers under such law,” đe,

2

Ante, p. 533. The portion relating to the question under consideration is as follows:-The next question is whether this Act contravened the 1st sec, of the Sd art. of the Constitution. This article relates to the judicial power of the United States, and vests it in " "The argument, as I understand it, is, that the commissioners under this Act exercise judicial power; that they are not

missioners does or does not involve an exercise of the judicial power of the United States, it appears that the negative is maintained by all here quoted, with the exception of the opinions in the Wisconsin and Ohio cases.

The opinions supporting this negative may be discriminated as

Those which determine the question by reference to existing judicial authority in earlier cases under the same Act:

Those which determine it by independent juristical reasoning.

The first of these classes is the larger. It will be seen that all the later opinions decide this question on the authority of Sims' case and the opinions announced during the first year after the enactment of the law, authorities which constitute the second class. The judges in the later cases seem particularly to avoid all expression of an independent agreement judges during good behavior and with stated salaries, and so their jurisdiction is unconstitutional.

"It is impossible to come to a safe conclusion upon this or any other rule of the Constitution, by an examination of its mere words.

"It has reference to a great subject in the minds of its framers, and unless that is seen, the terms employed will not be understood as intended. No one who keeps this in view can suppose that this clause of the Constitution was intended to confine all judicial inquiries, of whatever nature, to judges described in this article. If it were so, no master-in-chancery could act in the administration of that system of equity which the Constitution itself provides for, and in which those judicial officers had for ages been a necessary part. No commissioner of bankrupts could be appointed under any system of bankrupt law which Congress, pursuant to the express power in the Constitution, might enact. No commissioner of patents could pass on the claim of an inventor, or the conflicting claims of different inventors. No justice of the peace in the territory which the United States might acquire for its seat of government, could discharge those duties so long and so usefully known to the people. And Congress could not delegate to any commissioner a special and limited power to make any judicial inquiry, for any purpose, without bringing them within the requisitions of this article. It may be added, that the practice of all departments of the government, since its existence, has, upon this assumption, been a continued series of violations of the Constitution. This is hardly admissible, and I feel obliged to look for some other interpretation. "To solve this question, so far as it affects the matter now before me, it seems only necessary to turn to the next paragraph in the Constitution, which, by defining the subjects of the judicial power, shows what is the meaning of those same words in the preceding sentence. The only clause which can be supposed to touch these proceedings is, 'cases arising under the laws of the United States;' and the question is, whether this summary proceeding is, within the meaning of the Constitution, a case arising under the laws of the United States.

"This seems to me to be answered by what has heretofore been said respecting the nature of this proceeding. One definition given of a case under this clause is a suit, in law or equity, instituted according to the regular course of judicial proceedings' (3 Story's Comm. 507). The form of the definition may be varied, but it does not seem to me that a summary inquiry, designed to operate as