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der the treaty between the United States and France for the reason that the judge in ordering the commitment exercised a special authority, and the law had made no provision for the revision of his judgment.' The same reason applies to the action of this commissioner. Not only has the law made no provision for the revision of his acts by this court, but, strictly speaking, he does not exercise any part of the judicial power of the United States. That power can be exerted only by judges appointed by the President, with the consent of the Senate, holding their offices during good behavior, and receiving fixed salaries." (Referring to Const., Art. 3, sec. 10.)'

A conclusion against extending the appellate jurisdiction to the act of a commissioner would follow from this reasoning, whatever might be the quality of the power exercised. The

In the matter of Metzger (1846), 5 How. 176. He had been committed by Judge Betts of the U. S. District Court at chambers. Application being made to the Supreme Court of the U. S. for habeas corpus to review the action of the district judge, the question was of the extent of the appellate jurisdiction of the Supreme Court, and of its power to issue the writ under sec. 14 of the Judiciary Act. In the Opinion of the court, by McLean, J., ib. 191:-"There is no form in which an appellate power can be exercised by this court over the proceedings of a district judge at his chambers. He exercises a special authority, and the law has made no provision for the revision of his judgment. It cannot be brought before the District or Circuit Court; consequently, it cannot, in the nature of an appeal, be brought before this court." If it is determined by this decision that the power exercised was not judicial because the action was done at chambers, it must be held that the quality of an act of judgment depends on the place in which it is performed. But Judge McLean said, ib. 188:-"The mode adopted by the Executive in the present case seems to be the proper one. Under the provisions of the Constitution, the treaty is the supreme law of the land, and, in regard to rights and responsibilities growing out of it, may become a subject of judicial cognizance. Whether the crime charged is sufficiently proved, and comes within the treaty, are matters for judicial decision; and the Executive, when the late demand for the surrender of Metzger was made, very properly, as we suppose, referred it to a judicial officer." Judge Edmonds, of the State Court, afterwards discharged the prisoner; holding not merely that some act of legislation was necessary (1 Barbour, 257-261), but also that co-ordinate judicial power must be exercised in carrying a treaty of this kind into effect. Judge Edmonds (ib. 262) forcibly presents the alternative either the action of the judiciary here is judicial power and co-ordinate, or the Executive applies to the judiciary only as convenient, and may dispense with it altogether. Of the latter alternative he says:-"Such is the claim presented before me, and, if established, then is the liberty of the citizen, at least as respects extradition, subjected to executive discretion to an extent that is calculated to alarm even a country where freedom, in the aggregate, is so common that its invasion in detail is too often and too easily disregarded. [Remarkable words!] To meet an objection so formidable in its character, it is urged that the aid of the judiciary must of necessity be invoked in the execution of the treaty." Judge Curtis could hardly have meant that the capacity or incapacity of a person to exercise the judicial power of the United States determines whether his action is an exercise of judicial power. But his language is not far from such. assertion.

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Supreme Court could revise the exercise of judicial power only when exercised by persons thereto qualified under this clause of the Constitution. But Judge Curtis intends to affirm expressly that the power exercised by the commissioners, in this matter, is not judicial power in its quality. This appears from his reference to Metzger's case, and also by his declaring (ib. 120) the power exercised by the commissioners to be of the same quality as that of a district judge and the Secretary of the Treasury under the treaty with Spain, of 1819, for the settlement of certain claims against the United States. The justness of this parallel will be considered hereafter.

Four other justices also refused the motion, though not taking Judge Curtis' position on the question of appellate power,' but on the merits. They affirmed Judge Betts' decision as correct; and, since he had remanded the prisoner to the custody in which he was held under the commissioner's warrant, they must be taken to have held that the commissioner had not in his action exercised the judicial power of the United States.

But the Opinion of this majority, delivered by Mr. Justice Catron, Justices McLean, Wayne, and Grier concurring, seems to support the doctrine that the action of the commissioners and judicial magistrates designated in the Act, in these cases, is not subordinate or ancillary to that of the executive function, but an exercise of the co-ordinate judicial function.'

If the Supreme Court must refuse to hear appeals in cases where persons are in custody by commitment of a U. S. commissioner or U. S. judge at chambers, the only way the question of conflict of jurisdiction can be brought to the arbitrament of the Supreme Court, under the present system, is by carrying it through the State courts. See Judge Edmonds in Metzger's case, 1 Barbour, 266-267, and Mitchell, J., in Heilbonn's case, 1 Parker Cr. 438.

* After referring to Robbins' case, Judge Catron said, 14 How. 112:-"But a great majority of the people of this country were opposed to the doctrine that the President could arrest, imprison, and surrender a fugitive, and thereby execute the treaty himself, and they were still more opposed to the assumption that he could order the courts of justice to execute his mandate, as this would destroy the independence of the judiciary in cases of extradition, and which example might be made a precedent in other cases; and from that day to this the judicial power has acted in cases of extradition, and all others, independent of executive control." And, on page 113:-" Congress obviously proceeded on this public opinion when the Act of 1848 was passed, and therefore referred foreign powers to the judiciary when seeking to obtain the warrant and secure the commitment of the fugitive, and which judicial proceeding was intended to be independent of executive action on the case. And such has been the construction and consequent practice under the Act of Congress and treaty by our executive department, as we are informed

A minority, consisting of three judges, regarded the prisoner as in custody under Judge Betts' decision as circuit judge,' and were in favor of issuing the writs asked for on the merits, and also on the ground (as would seem from the Opinion delivered by Mr. Justice Nelson, Chief Justice Taney and Mr. Justice Daniel concurring) that a previous demand on the Executive and some action on his part must in these cases precede the action of the judges and commissioners mentioned in the Act of Congress. From this it would appear that these judges regarded the action of the judge or commissioner as ancillary to the executive power, and not co-ordinate judicial power.2

From the two opinions it appears that, with the exception of Judge Curtis, all the members of the court regarded the action of the commissioners and judicial magistrates mentioned in the Act as being so far judicial in quality as to be beyond the sphere of the executive department; while, in admitting that the power therein exercised may be held by a commissioner, they must be taken to affirm with Judge Curtis that it is not the judicial power of the United States.'

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on application to that department." (In Kaine's case, the Secretary of State had decided that the Government would not go behind the decision of the commissioner adjudging the prisoner guilty." See Nelson, J., 14 How. 139.) On page 110, Catron, J., had said:-"That an executive order of surrender to a foreign government is purely a national act, is not open to controversy; nor can it be doubted that the executive act must be performed through the Secretary of State by order of our chief magistrate representing the nation. But it does not follow that Congress is excluded from vesting authority in judicial magistrates to arrest and commit preparatory to a surrender."

These judges held that the commissioner, to act in these cases, should, under the statute, have been specially appointed; that the general powers of the commissioners could not extend to them.

Judge Nelson, however, does not affirm that the only power exercised is that vested in the executive department. After holding that the course taken in Robbins' case had been sustained by later authorities, 14 How. 139, 140, he says:— "And it is upon this construction given to the treaty of 1795 upon which all our subsequent treaties of extradition seem to have been drafted. The power to surrender is not confided exclusively to the Executive under the treaty of 1795. On the requisition being made, if the President is satisfied, upon the evidence accompanying it, that a proper case is presented for an inquiry into the crime charged, the authorities claiming the fugitive are referred to the judiciary, and then it is the duty of courts or judges to act and to take the proper steps for the arrest and inquiry. The Executive alone possesses no authority under the Constitution and laws to deliver up to a foreign power any person found within the States of this Union without the intervention of the judiciary. The surrender is founded on an alleged crime, and the judiciary is the appropriate tribunal to inquire into the charge."

Mr. Cushing, U. S. Atty. Gen., in his opinion in Calder's case, Aug. 31, 1853, relying on the opinions in Kaine's case, says: "The arrest, examination, and de

856. It has been argued that pecuniary claims against the United States have often been referred to special commissioners, and to official persons not holding the judicial power of the United States. That when referred to judges of the national courts, it has been held that their action therein was the exercise of a special power and not the judicial power,' and that the decision of a demand under treaty for the person of a fugitive criminal is analogous. Such was the argument of Mr. Justice Curtis in Kaine's case, 14 How. 120, and of Marshall in Robbins' case.

But it must be noticed that the rights which are thus claimed under treaty are not legal rights; except as they may be made such under some law of Congress intended to carry the treaty into effect; because the correlative obligation is not a legal obligation, since it is due by a sovereign who makes the treaty and, by it, the rights. By the

cision of fact, are purely judicial acts. They are not and cannot be performed by the President,"-6 Op. U. S. Atty. Gen. 95; and that the judge "acts by special authority under the law of Congress. * He does not exercise any part of what is technically considered the judicial power of the United States." Ib. 96. From these authorities it appears that the difficulty is avoided by distinguishing some of the judicial power of the United States as special authority, and that the Constitution must be understood as meaning-the judicial power of the United States, so far as it is not special authority, shall be vested, &c., or that the functions of the Government are the legislative, the executive, the judicial, and the special.

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By the treaty of 1819, with Spain, it was agreed that the United States "shall cause satisfaction to be made for the injuries, if any, which, by process of law, shall be established to have been suffered by the Spanish officers, and individuals, Spanish inhabitants, by the later operations of the American army in Florida." By certain Acts, Congress directed the United States district judge to adjudge claims for losses, and to report his decisions, if in favor of the claimants, together with the evidence, to the Secretary of the Treasury. In United States v. Ferreira, 13 How. 47, held that no appeal could be made, from such an award, to the Supreme Court. Taney, Ch. J.:-"The decision is not the judgment of a court of justice. It is the award of a commissioner. The Act of 1834 calls it an award. And an appeal to this court from such a decision, by such an authority, [as?] from the judgment of a court of record, would be an anomaly in the history of jurisprudence. An appeal might as well have been taken from the awards of the board of commissioners under the Mexican treaty, which were recently sitting in this city." On p. 48:-"The powers conferred by these Acts of Congress, upon the judge as well as the secretary, are, it is true, judicial in their nature. For judgment and discretion must be exercised under both of them. But it is nothing more than the power ordinarily given by law to a commissioner appointed to adjust claims to lands or money under a treaty, or special powers to inquire into or decide any other particular class of controversies in which the public or individuals may be concerned. A power of this description may constitutionally be conferred on a secretary as well as on a commissioner. But it is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States." See further, pp. 49, 50, 52, noting Hayburn's case, 2 Dall, 409, and United States v. Todd, ib. n.

treaty, the United States concede something voluntarily which it was in their discretion to withhold; and, by the statute, they appoint the manner in which they will carry out their concession and on what evidence they will admit the existence of the facts. In these cases the national Government is like a private person who, from a sense of moral obligation or of self-interest, voluntarily consents to grant something to another, and who determines on the extent of his proposed concession in any way he chooses. He may determine this by an act of mental judgment, or by chance, as by a cast of dice, or he may appoint another to decide for him by either of such methods, or by any other. In these cases the Government acts, throughout, autonomously, and not under law, and the commissioner is its agent.'

It seems to be forgotten that in the instance of extradition. there is a third party, the alleged criminal, whose right to life and liberty within the jurisdiction of the United States is to be determined under law, whether it be treaty, or statute, or common law.

857. If the national and State courts may adjudge on habeas corpus whether the prisoner is within the terms of the treaty, it can only be in the exercise of their ordinary judicial power. Yet the question thus presented to the court is the same which had been passed upon, before, by a commissioner or a judge at chambers.

§ 858. For the present inquiry, it is very important to notice that it seems to be held that the act of judgment exercised in these cases is not distinguishable in quality from that used

1 The Government may be taken to occupy a similar position in respect to its delinquent collecting agents on whose property the supervisors of the treasury department were authorized to levy, by an Act of 1820. Judge Marshall, in Ran dolph's case, 2 Brock. C. C. R. 448, 480, treated the power exercised as ministerial, though intimating that, if its quality were to be determined, it might be the judicial power of the United States.

That is, if they may not merely inquire into the existence of the commitment, but may go behind the decision of a commissioner or even the mandate of the President, as held in Metzger's case, 1 Barbour, 248; Heilbonn's case, 1 Parker's Cr. 436. The opinions of the Supreme Court in Metzger's and Kaine's cases would imply that the United States Courts have power to make this inquiry. Whether the State courts can in like manner inquire into the propriety of a commitment by a Governor under the Constitution and Act of Congress, is unsettled. See R. C. Hurd on Habeas Corpus, 615. In Ex parte Smith, 3 McLean, 180, the power of a United States court to make this inquiry is affirmed.

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