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"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

1Ante, p. 304.

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."

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.

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.

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.

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

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."

2 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. 531, 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

VII 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 infor

mation 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 requiring 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.

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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."

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