§ 908. 4. As to the argument, that the action of the judge or commissioner is an exercise of power not in its nature judicial, it is to be noticed that, while the judicial character of any act of judgment is determined not merely by its effect upon the subject matter-person or thing-but by its consequences in respect to a certain forum or geographical district, no notice is taken, in the opinions in which this argument occurs, of the State in which it is performed, as being the jurisdiction standing in this relation to the act of judgment performed by the commissioners. The international operation of this act of judgment is left out of view; or it is assumed to be an act occurring exclusively under the internal law of a single forum or jurisdiction. It is assumed that, under the Act of Congress, if not under the Constitution in the first instance, such a connection is established between the State in which the fugitive is claimed and delivered up and that from which he escaped or is supposed to have escaped, that the two constitute, under the national law, one forum, pro hac vice, and that the act of judgment is "preliminary" or ancillary to some other act of judgment, to be performed in the same forum, in which the judicial function will or may operate.

There are probably none who would say that the act of determining the whole question whether a certain person, being presumptively of free status in one State, may or may not be taken by another as his slave and carried thence into bondage elsewhere, is not a complete exercise of judicial function."

p. 548.) It has been argued that Congress may entrust the decision of this claim to a commissioner, and without jury trial, because by that inter-colonial article "the magistrate, or some of them, where, for the present, the said prisoner or fugitive abideth," was authorized to deliver up "the fugitive for any crimiral cause." Ante, Vol. I., p. 269, n. [c.] It may be assumed that the same magistrate could, in like manner, deliver up a runaway servant, though this is not declared in the clauses relating to such persons, ib. [b.] But it must be remembered that this compact was an agreement between parties who in this matter acted as sovereigns; it was not a legislative act whose validity could have been measured by some constitution controlling the legislator. Again, if the argument be of any force to the objection of necessity of jury trial, it fails on the objection of undue exercise of the judicial power, for at that time in New England, the term "magistrates" was applied to the highest functionaries of the local government, vested with ordinary judicial powers.

The direction to the sheriff, in the writ de nativo habendo et de libertate probanda, ran thus: "tunc ponas loquelam illam coram justiciariis nostris ad primam assisam cum in partibus illis venerint, quia hujusmodi probatio non pertinet ad te capiendum." Fitzh. Reg. Br. fol. 1, 87. "The power

Jacobs' Law Dict., Vol. II., p. 325. Justices of the Peace, IV.

The denial of the judicial character of the proceeding is made in asserting that the act is merely an identification of a certain person with a view to ulterior proceedings.

Thus the act of judgment of the judge, magistrate, or commissioner, under the laws of Congress, is assumed to be comparable to the ordinary action of the United States commissioners in carrying into effect those laws of national origin which operate in the United States as one forum or jurisdiction, i. e., the national municipal law, or to the ordinary action of inferior magistrates in arresting or holding to bail persons in one subdivision of a State forum, with view to ulterior judicial action in the same or some other subdivision of the same forum. This idea is further illustrated by the assumption of a parallelism between the delivery of a fugitive from labor under these statutes and the extradition of a fugitive from justice under the law of 1793.

The inadmissibility of this assumption can only be shown by an independent exhibition of the true nature of this act of judgment in reference to the various elements of jurisdiction which are presented in such a case. This exhibition will occur in the attempt herein presently to be made, to state the true view of the question, as justified by the authorities and principles already set forth.

Or, in some arguments, the commissioner's act of judgment is asserted not to be distinguishable from those examinations of facts which are made by the commissioners and others, such

of justices is ministerial when they are commanded to do anything by a superior authority, as by the Court of B. R., &c. In all other cases they act as judges; but they must proceed according to their commissions, &c. Where a statute requires any act to be done by two justices, it is an established rule, that if the act be of a judicial nature, or is the result of discretion, the two justices must be present to concur and join in it, otherwise it will be void; as formerly, in orders of removal and filiation, the appointment of overseers, and now in the allowance of the indenture of a parish apprentice; but where the act is merely ministerial, they may act separately, as in the allowance of a poor-rate. This is the only act of two justices which has yet been construed to be ministerial; and the propriety of this construction has been justly condemned. 4 T. R. 386."

The act of admitting to naturalization is a judicial act. Ritchie v. Putnam, 13 Wendell, 524. Even though it be doubtful whether the admission is conclusive as res judicata on other tribunals. Banks v. Walker, 3 Barb. Ch. R. 438. State courts may naturalize in virtue of concurrent judicial power. Heydenfeldt, J., Ex parte Knowles, in the Alta California, Aug. 15, 1855.

The commissioner's act of judgment can hardly be thought less judicial in its nature than an admission to naturalization, or than one of those acts in which, under the English statutes, two justices were required to join.

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 summary 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.

2 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