as commissioners in bankruptcy, masters in chancery, in declared subordination to some court and its ulterior action. In this again the entirely independent effect of the commissioner's decision, in respect to the forum in which it is pronounced, is ignored, or an imaginary connection is set up between its action and the possible ulterior action of some unknown and indeterminable court in some other forum.

Or, in other instances, the character of the provision and statute, as private law, and of the action of the commissioner, as determining the existence of legal rights and obligations in a relation between two natural persons, is ignored, and it is assumed that the national Government, as a party concerned, grants, gives, or recognizes obligations due by it in its sphere of public action, which it may determine in any way it may think proper. This is illustrated in comparing the determination of these cases to the determination of claims for new patents, and of claims on the Government under a treaty.'

Connected with this last argument or assumption, is the doctrine that the judicial power can be exhibited only in a case arising, &c., and that here is no case at all. But the only argument offered, to show that this is no case, is that the proceeding is necessarily or properly a summary one, on some one of the reasons above given.'

§ 909. 5. As to the fifth argument, which is an admission that, according to ordinary criteria, the statute does not accord with the Constitution, but that it must be presumed that the provision was intended to be made effectual for the object indicated; that it could not otherwise have been made effectual than by giving this power to the commissioners. This argument is also employed in reference to the objection that the Act of Congress violates the guarantees in the Constitution for

'The failure of the similar parallel in the case of fugitives from justice has been pointed out, ante, § 856. If the argument there given applies in that instance it must, a fortiori, in these cases.

For illustrations of the arguments above excepted to, see the citations of opinions of Judge McLean, Judge Nelson, Mr. G. T. Curtis, Mr. Loring, and Mr. B. R. Curtis. See, particularly, the advisory Opinion given by the last, where all these ideas are blended together. Mr. Curtis was indeed careful to say that he did not mean that the form of the proceeding determines the nature of the power. But there is a circuity in the reasoning, nevertheless, for it is said-it is a sunmary proceeding because it is not a case, and it is not a case, because it is a summary proceeding.

private rights. It will, therefore, be considered in the next chapter.'

In insisting that in the present appointments of judges for the Territories, or in a supposed appointment of officers of the United States resembling justices of the peace, there would be an equal violation of the Constitution, if it has been violated for the action of commissioners under the fugitive-slave law, another form of the argument of a constitutional necessity for passing over the requirements of the Constitution, as known by ordinary interpretation and construction, presents itself.

But it is evident that an admitted necessity of violating a rule in one instance, is no argument for violating the same rule in another. Each such case of necessity must stand by itself, on its own necessity.

It is going very far for an argument, to assume that it must in some cases be necessary to confer the judicial power of the United States on justices of the peace, under some law which has never yet been passed. And, as to the powers exercised by the national Government in the Territories, there is much room to question whether they depend upon any grants of power in the Constitution, or whether they are not removed from the restrictions imposed on the functions of the national Government within the States, by the clause in the third section of the fourth Article, giving Congress power "to make all needful rules and regulations respecting the territory," &c.' § 910. According to the method herein pursued, the following is presented as the proper exposition of the question.

And first, as to the real weight of judicial authority.

a. It has been shown that the mass of authority later than 1850, rests on the previous opinions of Chief Justice Shaw and the dicta of Judge Nelson, with, perhaps, those of some other judges of the national courts in charges to juries, which

'In connection with this argument might be noticed what may be designated the argumentum a nigritia-that the persons to be affected by this law are not of the white race. But, admitting that this argument should apply to determine the extent of those guarantees of private rights which are to be considered in the next chapter, the question here is of a provision of public law. And, as it concerns the white people of the United States that power should not be exercised in violation of the Constitution, it is not a justification of a violation of such a provision that it is experimentum in corpore vili.

* See Whiton, Ch. J., ante, p. 671.

opinions and dicta are mainly an assertion that all question on this point is precluded by the decisions under the law of 1793; while Judge Shaw (who, from the nature of the case in which the opinion was delivered, is unquestionably the highest existing judicial authority on this particular question) said in the same judgment:-" At the same time it is proper to state, 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."

Now, if this argument did not, for the reasons already stated, apply to the law of 1793, yet it unquestionably does to the law of 1850, for the commissioners can derive their powers from no other than the national source; and if the argument did not apply to the law of 1793, the cases under that law and the acquiescence of the general and State Governments in that law, are no authorities for deciding the question when it actually arose under the law of 1850. Hence it follows that Chief Justice Shaw's Opinion, pronouncing the judgment of the Supreme Court of Massachusetts in Sims' case, may reasonably be deemed rather an authority against the constitutionality of the action of the United States commissioners.

b. Supposing that on this reasoning the weight of authority on this point, though popularly received as overwhelming, is measurably diminished, it may be permitted to refer to the opinions expressed by the State judges on this question in the Wisconsin and the Ohio cases. For, though the point was not involved in those cases, it is undeniable that no judicial reasoning to the other side has ever been since produced. The Supreme Court of the United States, in Ableman v. Booth, may be supposed to have intended to pass upon the constitutionality of the law only so far as it was actually requisite for the decision of the case before them; and it is an admitted principle that neither that court nor any other, under our system of government, has power to decide on the propriety of any legis lative enactment generally, that is, without reference to its

effect on actual parties in some case before the court. The juristical dissertations of the members of that high tribunal, on points not actually before them, command the profoundest respect of the profession and the public; and on points of great political importance, as shown in notable instances, they have been urged as controlling authority. But it has not been customary for other courts to admit a general assertion of the constitutionality of an Act as conclusive on all possible points in which the validity of the law may be questioned, when they have not been in issue before the court in a case.

c. If the view of the bearing of the opinions delivered in Prigg's case, which was presented in another chapter, is correct, the majority of the court justified the action of State magistrates only so far as it was an exercise of the concurrent judicial power of the State.

Now, we have the authority of Judge Shaw in Sims' case, and of the many judges who have followed his decision, that the action of the commissioners involves an exercise of power not distinguishable in quality from that which, under the law of 1793, was exercised by the judges of United States courts and the State magistrates whose action was approved in Prigg's case and the earlier cases in the State courts. Admitting this, it follows that Prigg's case is authority for saying that, in performing the action required of them, the commissioners will exercise the judicial power of the United States.

d. If there is any parallel between the delivery of a fugitive slave under this provision and the extradition of criminals under the other, there is some authority for holding that it indicates the judicial character of the commissioner's act of judg ment.' We have the opinion of Kent that the act of judgment now performed by the Governors of the States, should, if performed by any one in virtue of power derived from the United States, be performed as a part of the judicial function.'

§ 911. Secondly; it is to be inquired, independently of any judicial authority on this point, what may be known of the power exercised by the commissioners?

a. And, first: how far may the nature of this power be known from the basis assumed for the legislation of Congress?

It was concluded, in the twenty-seventh chapter, that that legislation can only be justified as it may carry into effect a power belonging to the judicial department of the Government, a part of the judicial power of the United States in a case arising under the Constitution by giving the provision the fourth con

struction.

Moreover, if the theory adopted by Judge Story in Prigg's case is to be adopted, the legislation of Congress is equally to be justified as carrying into effect a power belonging to the judicial department of the Government, a part of the judicial power of the United States in a case arising under the Constitution by giving to the provision the third construction.

But if, under either theory, the commissioner's act of judgment is adequate to the whole object of the provision, it disposes of all that was involved in the supposed "case arising under the Constitution;" and the conclusion is inevitable that in his action he has dispensed that power which, in the argument, was before supposed to be the judicial power of the United States.

Now, under either theory, the object of the provision is to cause the fugitive from labor to be delivered up to the custody of the person to whom his service is due by the law of the State from which he escaped.

It may be that this object could be answered by delivering up the fugitive in some State other than that in which he may have been found.

But it cannot be doubted that the action of judges and "State magistrates," under the law of 1793, was always taken to result in the accomplishment of the object of the provision whenever the certificate was granted which allowed his being removed. Judge Tilghman said, in Wright v. Deacon, 5 S. & R., p. 64, "that the effect of the action of the judge or magistrate was to place the slave just in the situation he stood before he fled." The provision itself could not have required more than this. It has repeatedly been said, in justifying the action of the commissioners under the law of 1850, that their action is in no

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