the constitutionality of the Act of Congress of 1850 is now called in question, that of 1793 was obnoxious to the same objection, viz., that of authorizing a summary proceeding before officers and magistrates not qualified under the Constitution to exercise the judicial powers of the general government. Congress may have thought it necessary to change the pre-existing law, not in principle but in detail, because, as we have seen in the case of Prigg v. Pennsylvania, some of the judges were of opinion that State magistrates could not act under the authority conferred on them by the Act of 1793, when prohibited from doing so by the laws of their own State, and some States had in fact passed such prohibitory laws. The present fugitive-slave law may vary in other respects, and provide other and more rigorous means for carrying its provisions into effect, but these are not made grounds of objection to its constitutionality."

As further indicating the reliance placed, on this occasion, on the position that the question had been decided by the cases under the law of 1793, the following passages from the conclusion of the Opinion are important:

"On the whole, we consider that the question raised by the petition, and discussed in the argument before us, is settled by a course of legal decisions which we are bound to respect, and which we regard as binding and conclusive upon this court.

"The principle of adhering to judicial precedent, especially that of the Supreme Court of the United States in a case depending upon the Constitution and laws of the United States, and thus placed within their special and final jurisdiction, is absolutely necessary to the peace, union, and harmonious action of the State and general governments. The preservation of both, with their full and entire powers, each in its proper sphere, was regarded by the framers of the Constitution, and has ever since been regarded, as essential to the peace, order, and prosperity of all the United States.

"If this were a new question, now for the first time presented, we should desire to pause and take time for consideration. But though this Act, the construction of which is now drawn in

question, is recent, and this point, in the form in which it is now stated, is new, yet the solution of the question depends upon reasons and judicial decisions, upon legal principles and a long course of practice, which are familiar, and which have often been the subject of discussion and deliberation.

"Considering, therefore, the nature of the subject, the urgent necessity for a speedy and prompt decision, we have not thought it expedient to delay the judgment. I have, therefore, to state, in behalf of the court, under the weighty responsibility which rests upon us, and as the unanimous opinion of the court, that the writ of habeas corpus prayed for cannot be granted.”

$888. Subsequently to this decision of the Supreme Judicial Court of the State, another application for habeas corpus was made to Judge Sprague, of the United States District Court, on the "ground that the law was unconstitutional, particularly in giving jurisdiction to commissioners." IV. Mon. L. R. 10. "After a full hearing, the judge gave his Opinion, sustaining the constitutionality of the law, and the writ was refused." (Ib.) No written Opinion appears to have been published.'

1

Application was also made to Judge Woodbury, the United States Circuit Judge, for a writ, but on grounds having no connection with the circumstance that Sims was claimed as a slave. IV. Mon. L. R. 13.

On the 7th of April, 1851, Judge Nelson, as U. S. Circuit judge, considered very fully the constitutionality of the law of 1850, in a charge to the grand jury of the Southern District of New York, which is given in 1 Blatchford's R. App., from which the following passage, ib. 643, is taken:-"It has been made a question upon this Act, whether or not it was competent for Congress to confer the power upon the United States commissioners to carry it into execution. As the judicial power of the Union is vested in the Supreme Court, and such inferior courts as Congress may from time to time establish, the judges of which shall hold their offices during good behavior, it has been supposed that the power to execute the law must be conferred upon these courts, or upon judges possessing this tenure. It is a sufficient answer to this suggestion, that the same power was conferred upon the State magistrates under the Act of 1793, and which, in the case of Prigg v. The Commonwealth of Pennsylvania, was held to be constitutional by the only tribunal competent, under the Constitution, to decide that question. No doubt was entertained by any of the judges in that case but that these magistrates had power to act, if not forbidden by the State authorities. The judicial power mentioned in the Constitution, and vested in the court ordained and established by and under the Constitution in the strict and appropriate sense of that term:-courts that comprise one of the three great departments of the government, prescribed by the fundamental law, the same as the other two-the legisla tive and the executive. But, besides this mass of judicial power belonging to the established courts of a government, there is no inconsiderable portion of power,

§ 889. On the trial, in May or June of the same year, in the United States District Court for the District of Massachusetts, of James Scott, accused of the rescue of the slave Shadrach while held, under a commissioner's warrant, for hearing the claim. Judge Sprague examined the constitutionality of the law of 1850, as appears from newspaper reports and from the notice. given in IV. Mon. L. R. 159. In the words of the last:"He considered the objections to the Act of 1850, and showed that they applied with equal or greater force to the Act of 1793." He also referred to the long period during which the earlier Act had been unquestioned. Judge Sprague referred particularly to certain cases under that Act, as instances in which the action of a State magistrate had been sanctioned, viz.: Wright v. Deacon, Commonwealth v. Griffith, and Jack v. Martin; and also, to Ex parte Simmons, 4 Wash. 396; Hill v. Low, ib. 327; Worthington v. Preston, ib. 461. He also referred to Johnson v. Tompkins, and Jones v. Van Zandt, as sustaining, generally, the validity of that law. He next gave Story's language in Prigg's case, 16 Peters, p. 622, and McLean's Opinion in the same case. Judge Sprague also attributed great weight to the decision of the Supreme Court of Massachusetts in Sims' case, and to the Opinions of Judge Shaw and Mr. Commissioner Curtis. Then, alluding to the fact that,

in its nature judicial-quasi-judicial-invested, from time to time, by legislative authority, in individuals, separately or collectively, for a particular purpose and limited time. This distinction, in respect to judicial power, will be found running through the administration of all governments, and has been acted upon in this since its foundation. A familiar case occurs in the institution of commissioners for settling land claims, and other claims against the government (2 St. at large, 324-440). A strong illustration will be found in this State under the old constitution of 1777. By that, justices of the peace were appointed by the council of appointment, and held their offices during the pleasure of that body. Yet the powers possessed by most magistrates were conferred by acts of the Legislature upon the aldermen of cities, who were elected by the people. But I need not pursue the subject, as the question must be regarded as settled by the case referred to."

In this argument, the quality of the power is determined by the capacity or incapacity of the officer to exercise it. Judge Nelson appears to have been sensible of no inconsistency in saying, ib. 640:-"Not a power has been conferred upon those appointed to administer it judicially," &c., and arguing in the same place that a commissioner's decision precludes the interference of the State judicial authority, because the Constitution of the United States provides that the judicial power of the United States shall be vested thus and so; and ib. 642, arguing as if the decision of a commissioner were on a par with a decision of a United States court.

since the decision of Prigg's case, Justices Grier, Nelson, and Woodbury had become members of the Supreme Court of the United States, he referred to the expressed determination of Judge Grier at Philadelphia, in October, 1850, in the case of one Garnett, to enforce the Act of that year, and his recognition, in a private letter, of its constitutionality,' and to the charge of Judge Nelson, in the month of March, 1851, and stated that Judge Woodbury had expressed his concurrence in the same views. Judge Sprague then said, IV. Mo. L. R. 160:-"We have thus not only the decision of the highest judicial tribunal in the United States, which alone would be conclusive upon all subordinate courts, but the opinions of all the members of the court in 1842, and all its present members, in support of the constitutionality of the Act. Against all this, not one decision of any court, State or national, and not one opinion of any judge of the United States, can be produced.

"These questions must now be considered as settled by contemporaneous exposition, by practice and acquiescence for more than fifty years, by the opinions and decisions of courts and judges, State and national, and especially by the Supreme Court of the United States. To overturn the construction of

In 2 Wallace, Jr., 134, in the statement preceding the charge of Judge Kane, April, 1851, to the Grand Jury, on the law of treason, the reporter says:-“ On the 18th Sept., 1850, Congress, in order to give effect to a provision of the Constitution, passed a law to enable the owners of fugitive slaves to recover them when found in the States to which they had fled. Slavery, the abolition of slavery, this law, or any law for the recovery of slaves, had been, for some time prior to the passage of the Act, the themes of passionate and fanatical debate by extreme factions in the Northern and Southern States. The country was convulsed by party rage, and that 'unity of government which constitutes us one people' had itself become endangered. Not content with resisting the passage of the Act, the northern part of the faction, immediately after its passage, set themselves to work through the pulpits, the press, through public harangues and secret engines of every kind, to bring about resistance to the law and to destroy the power of executing it, through the force of public opposition." The introduction of such historical passages in a volume of law reports, is also some evidence of the prevailing excitement. The reporter adds:-"In this circuit, everywhere, owing to the energy of this court and the commissioners, and officers appointed by it to execute the provisions of the Act, the law was generally enforced with integrity. As the Lord liveth, and as my soul liveth'-declared Mr. Justice Grier, just after its passage, and in the midst of an assemblage whose murmurs of violence were disturbing his administration of justice this court will administer this law in its full meaning and genuine spirit until the last hour that it remains on the statute book."" This was probably the occasion referred to by Judge Sprague, as Garnett's case.

He had not done this in Sims' case: the question was not before him. I have not been able to find any record of Judge Woodbury having expressed such an opinion.

the Constitution so established, would be a most dangerous violation of principle and duty. If a court may do this, it may overturn established rules of property, of personal rights, and of evidence upon which the community have for a long time acted, and thus shake every man's title, put in jeopardy every man's liberty, and render the law so uncertain that no counsel could advise and no man act with safety."

§ 890. But while he considered every question in this case as settled by previous judicial decisions, Judge Sprague also discussed the question, "Do the proceedings prescribed by Congress for the delivery of fugitives from labor require the exercise of judicial power by a court, or may they be summary before a magistrate?" IV. Mo. L. R. 159. Meaning, probably not, as might be inferred from such a statement of the question, that, if performed by a court they would be judicial, and if before a magistrate they would be summary-but are they in their nature an exercise of judicial power, such as, under the Constitution, must be vested in a court. In answering this, he observed (ib.) :—“ A proceeding, then, is not judicial merely because a magistrate or officer must ascertain facts and law, and act thereon in a particular case. As a general rule, to render the proceeding judicial under our jurisprudence, the tribunal must have the power to render a judicial judgment as to the questions at issue, which, if not annulled by appeal or reversal, will conclude the parties in future controversy upon the same question. The matter in controversy becomes, res judicata, judicially settled, and not open for future litigation between the same parties. It has been urged that this is not so, because, after judgment upon a writ of entry, the same question may again be litigated in a writ of right. This is a mistake. It is not the same question. The matters in issue in those two actions are quite different. The mere right is never in issue in a writ of entry. In a writ of entry on disseizin and a plea of nul disseizin, the only question is whether the defendant did disseize the plaintiff, and that being adjudged, cannot be again litigated. The mere right may be afterwards tried, because it is, legally, a different question.'

A very close parallel might be instituted between this pair of judgments, and the issues which may arise between the alleged fugitive and the claimant, viz,