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 chim 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 [i. 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 deIt 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 collectors, "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," de.

cree.

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 3d 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 dif ferent 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

with those opinions, and are careful to indicate that they follow them only on the maxim stare decisis.

On the first of these two classes of opinions, no comment is necessary; such opinions depend entirely upon the value of opinions assigned to the second class.

In this second class the arguments are distinguishable as:

1. That which declares the power to be exercised by the commissioners to be the same which, by the law of 1793, was to be exercised by the magistrates of counties, cities, and towns corporate; that in Prigg's case and the earlier cases, it was decided that this power might be exercised by these officers; and that hence, on the authority of these cases, it must be held that the power is not the judicial power of the United States.

2. That which assumes a parallelism between the action of Governors of States, in delivering up fugitives from justice, and the action of commissioners in these cases; thus finding an argument from authority.

a condition for executive action, in order to accomplish some special and limited object, and not to try and finally determine the right between party and party, can be considered a case' for the judicial power of the United States, to be tried only by such a judge as the Constitution provides. Many instances may be put in which inquiries, in their nature judicial, are proper preliminaries to the action of the Government, where the Government cannot properly act without such inquiries, and yet they are manifestly not cases to which the judicial power under the Constitution extends, and accordingly, the mode of inquiry and the officers by whom it shall be made, are within the discretion of Congress. The question, who are the rightful claimants of money held by the Government under a treaty, and how much belongs to each, is one instance. The Government has the power to refuse to pay any part to any one. It desires to do justice, and for its own information has these inquiries made, as a condition and guide to its action. Of a like nature, so far as the power of Government is concerned, seems to me are the inquiries which are directed by this law. The Government has the power to refrain from acting at all. It thinks proper to act in aid of the master, who, by force of the Constitution, may seize and carry away the slave without the aid of the executive power. But before the aid of the executive power shall be granted, Congress directs that certain inquiries shall be made, and that the executive power shall be used only upon the finding, by the appointed officers, of certain facts. I cannot see why Congress may not require the marshal to act on these conditions if he [? it, i. e., Congress] sees fit.

"Let me not be understood to entertain the opinion that by changing the form of proceeding, or substituting a summary, for a regular judicial proceeding, Congress can enlarge its own authority or affect the rights of the citizen. The inquiry will arise in every case, which I have heretofore endeavored to consider in this case, whether Congress has the right to adopt and apply such a proceeding to the particular class of cases, and order the executive to act upon the result of such a proceeding.

"Having come to the opinion that in this class of cases Congress may do so, I feel no difficulty in saying that such a proceeding is not ‘a case,' within the meaning of the Constitution, to be tried only by judges holding their offices during good behavior and for stated salaries."

3. That based on the doctrine that the constitutional provision contemplates summary proceedings, and that such proceedings do not involve judicial action.

4. That which, on elementary principles, declares that the power exercised is not in its quality that kind of power designated in the Constitution as the judicial power of the United States.

5. That which may be called argumentum ex necessitate or ab inconvenienti.

§ 905. 1. As to the first argument, it has been shown that there is not sufficient reason for saying that the Supreme Court in Prigg's case, or any State court, ever intended to justify the action of any magistrates of counties, cities, or towns corporate, under the law of 1793, as an exercise of any power whatever derived from the United States.

This argument is, therefore, defective.

906. 2. As to the parallelism in the delivery of fugitives from justice. The parallel fails, because it cannot be shown. that the Governors of the States, in making the required delivery, have exercised power derived from the United States. On the contrary, the authorities and reasoning from general principles indicate that the power is derived from the State.' The parallel is, therefore, defective. But even if the power of the Governors were derived from the United States, the parallel would not hold, because, under the wording of the provision respecting fugitives from justice-"shall be delivered up, to be removed to the State having jurisdiction of the crime "— and the presumption existing between sovereign states, and particularly between the States under the Constitution, the delivery of a person accused of crime is a preliminary proceeding in reference to a prospective exercise of judicial power. This difference between the two acts of delivery will be again. noticed hereafter.

§ 907. 3. As to the argument founded on the proposition that the Constitution authorizes a summary proceeding, and that such a proceeding cannot involve judicial action. The

1 Ante, §§ 848-850.

2 Ante, § 860.

question whether the claim arising under the Constitution may be determined in a summary proceeding, that is, a proceeding without the formalities of a trial by jury according to the course of the common law,—is to be considered in the next chapter. But, admitting that such proceeding is not contrary to the guarantees of the Constitution, this argument assumes that the quality of the power exercised depends upon the form of the act. It is not to be admitted that an act of judgment or decision which is exhaustive and complete, to apply a law and enforce its consequences on persons and things in and for a certain geographical forum, is ministerial, as opposed to judicial, if only performed in the way here called summary. The distinction between a ministerial and judicial act, is in the nature of the power, having regard to the elements of legal jurisdiction and the effect produced in legal relations between private persons. The distinction between summary proceedings and those not so, lies in the forms under which the power is exercised. Decisions which are most clearly of the judicial character may be given by a single judge; and an act of judg ment by the court alone is not less judicial than the determination of a mixed issue by a jury under direction of a court. In many countries the bulk of legal controversies are determined by a judge or judges, in a way more or less summary as compared with our practice. It would be absurd to say that in such cases there were no judicial proceedings, or that the judicial power was not there exercised. A colonial statute of Delaware, of 1760,' substitutes "a short and summary manner" for deciding cases of disputed freedom, in place of the common-law method. The proceeding prescribed is before a court hearing the proofs and allegations of the parties in a summary way." By a law of that State of 1852, these suits are to be tried in the Superior Court "in a summary way, from which an appeal lies to the highest court, as on any other solemn judgment.

Ante, Vol. I., p. 507.

Ante, Vol. I., p. 292.

Ante, p. 81. Here may be noticed an argument which has been drawn, in some defenses of the law of 1850, from the eighth article of the compact between the New England colonies of 1643, to which reference has already herein been made, in construing the provision for the delivery of fugitives from justice. (Ante,