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alleged slave, so that the question of the validity of a custody under a commissioner's certificate was not strictly before the court. Judge Smith, who decided in the first instance on the petition of the relator, did not make any reference to the powers of commissioners. He, however, in 3 Wisc., 37-40,' maintained that a judicial determination of the claim, as contrasted with any summary proceeding, is contemplated by the provision. He there observes:

"Again, it is to my mind apparent, that the provision of the Constitution in regard to fugitives from labor or service, contemplates a judicial determination of the lawfulness of the claim which may be made.

"Mr. Butler, of South Carolina, who reported the clause for the first time, Aug. 29th, 1787, framed its conclusion as follows: but shall be delivered up to the person JUSTLY claiming their service or labor.' How was the justice of the claim to be ascertained? Who were to determine it? Fugitives were not to be discharged in consequence of any law or regulation of the States to which they may have fled. Not discharged by whom? The federal government? No, but by the States, in consequence, or by virtue of any law or regulation therein. 'But shall be delivered up.' By whom? Evidently by the same power which had covenanted not to discharge them. Shall be delivered up by the States, not seized by the federal government.

"The clause as finally adopted reads, but shall be delivered up on claim of the party to whom such service or labor 28 DUE.' Here is a fact to be ascertained, before the fugitive can be legally delivered up, viz.: that his service or labor is really due to the party who claims him. How is the fact to be ascertained? A claim is set up to the service of a person. He who makes the claim is denominated by the Constitution a party. The claimant is one party, the person who resists is another party. If he really owes the service according to the laws of the State from which he is alleged to have escaped,

1 In a passage immediately following that which has been cited as bearing on the question of construction. (Ante, p. 512.) Indeed, the passage here cited bears also on that question.

If the

and has in fact escaped, he must be delivered up. claim is unfounded, he cannot be delivered up. The Constitution itself has made up the issue, and arranged the parties to it. Can any proposition be plainer, than that here is suspended a legal right upon an issue of fact, which can only be determined by the constitutional judicial tribunals of the country? It bears no analogy to the extradition of fugitives from justice. In the latter case, no issue is presented by the Constitution. Judicial proceedings have already been commenced, and this is but a species of process to bring the defendant into court. No claim is to be determined. He is to be delivered up, from the mere fact that he is charged, to be removed to the State demanding him for trial. He is placed in the custody and under the protection of the law, in the regular course of judicial proceedings. But in the former case, there can be no delivery until the claim is tried and determined, and then the fugitive is delivered, not into the custody of the law, but into the possession and control of the party who has established his claim; not to be removed to another State or tribunal for trial, with the shield of the law over him, but to be reduced, without further process or trial, to absolute subjection, to be taken whithersoever the claimant may desire. In the one case, the proceedings are commenced and terminated where the claim is made; in the other, the suit is commenced where the offence is committed, and the law sends out its process to bring in the defendant to meet the charge. While that process is being served, through all its mutations, he is as much under the protection of the law as he who executes it, and, in its eye, both are equal.

'Here, then, is a fact, an issue, to be judicially determined before a right can be enforced. What authority shall determine it? Clearly the authority of the State whose duty it is to deliver up the fugitive when the fact is determined. Until the issue which the Constitution itself creates is decided, the person is entitled to the protection of the laws of the State. When the issue is determined against the fugitive, then the constitutional compact rises above the laws and regulations of the State, and to the former the latter must yield.

"To my mind this is very clear and simple. The whole proceeding is clearly a judicial one, and I will not stop here to demonstrate what, from the preceding remarks, appears so obvious. The law of 1850, by providing for a trial of the constitutional issue between the parties designated thereby, by officers not recognized by any constitution, State or national, is unconstitutional and void."

894. Judge Smith proceeds, in a passage which will be cited in the next chapter, to consider the objection of want of a jury trial. The two questions are cognate, and in the Opinion of the full bench on the certiorari, they are discussed together by Chief Justice Whiton, so that it is not easy to separate the arguments. The Chief Justice examines particularly the question of the power of the commissioners in the passage here cited from 3 Wisc. 64-66.

"It becomes, therefore, our duty to decide whether so much of the Act of Congress of September 18th, 1850, as provides that certain officers, called commissioners, shall decide the questions of fact which must be proved before the surrender of the alleged fugitive can take place, is valid and obligatory. We think that we are also called upon to decide whether the proceedings provided for in the Act for establishing judicially the fact of the escape of the alleged fugitive, and the fact that he owes service or labor, are in conformity with the Constitution of the United States. These questions are most grave and important; we would that we could avoid them, but they are forced upon us, and we are not at liberty to refuse to consider them.

"We are of opinion that so much of the Act of Congress in question as refers to the commissioners for decision the questions of fact which are to be established by evidence before the alleged fugitive can be delivered up to the claimant, is repugnant to the Constitution of the United States, and therefore void for two reasons,-1st, because it attempts to confer upon those officers judicial powers; and 2d, because it is a denial of the right of the alleged fugitive to have those questions tried and decided by a jury which, we think, is given him by the Constitution of the United States. We have re

ferred to the case of Martin vs. Hunter's Lessee (1 Wheaton p. 305), and to Art. 3, sec. 1, of the Constitution of the United States, to show that Congress can not vest any judicial power under the Constitution except in courts. We are aware that Congress has established courts in the various territories, and has provided for the appointment of judges with a different tenure of office from that fixed by the Constitution; but the power to appoint these judges is supposed to be derived from Art. 4, sec. 3, of the Constitution, which provides that 'Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property of the United States.'

"But, however this may be, we are not aware that the authority to vest any portion of the judicial power in any tribunals created by itself, except those mentioned in section 1 of Art. 3 of the Constitution, is claimed for Congress by any one, save in the single instance of judicial officers for the Territories belonging to the United States, and for the District of Columbia. We think that the duties performed by the commissioners under the Act in question are judicial in their character; as clearly so as those performed by a judge in the ordinary administration of justice. He is obliged to decide upon the questions presented, judicially, and to give a certificate to the person claiming the alleged fugitive, which authorizes his transportation to the State from whence he is alleged to have escaped, or withhold it, as he shall think proper, in view of the evidence submitted for his consideration. It is true that the Act, by providing that the record made in the State from whence the alleged fugitive may have escaped shall be conclusive evidence of the escape, and of the fact that the person claimed owes service or labor to the claimant, materially lessens the labor of the commissioner, but this does not alter the nature of the act which he performs; it must be regarded as a judicial determination of the matter submitted to him. We are therefore of opinion that the act under consideration, by attempting to vest judicial power in officers created by Congress and unknown to the Constitution, is repugnant to that instrument, and for that reason void."

§ 895. Judge Crawford, after referring to the objections made to the power exercised by the commissioners, and to the want of a jury trial, says (3 Wisc. 80):-"The force of argument which has been brought to bear, as well against as in favor of the constitutionality of the Act of 1850 in respect to these questions, has, I confess, raised doubts in my mind, but it has failed to produce that conviction which should justify a court or judge to pronounce a legal enactment void, because unconstitutional, and I am therefore unable to concur in the opinion that this law is unconstitutional.

"I shall briefly state my views upon these questions. * * * To my mind, the granting of these certificates 'upon satisfactory proof being made,' looks very like the exercise of judicial functions, because, although the granting of the certificate is merely a ministerial act, yet the determination upon the sufficiency of the proof would seem to involve judicial power. And in this connection it is urged that Congress cannot confer judicial power otherwise than," &c. (stating the objection). "But the judges of several of the Territories of the United States, who hold their appointment from the President, are not appointed to hold during good behaviour; and, if I am not mistaken, there is no instance of their having been held liable to impeachment at least that they are not so liable, has been advanced by an Attorney-General of the United States.

"It is said, territorial judges are appointed under the power given to Congress by the second clause of section three of Article four of the Constitution, on the ground that the establishment of a judiciary for the territories is a necessary incident to the acquisition of territory, and the power to make all useful rules and regulations for those territories; but if the power to legislate upon the subject of fugitives from labor be vested in Congress, it would seem that the performance of judicial acts might be vested in other than judges or courts, under the constitutional provision (article three, section one,) in such a case, as in the case of newly organized territories.

"But it has been repeatedly held, that where, by an act of Congress, State courts or magistrates are authorized to perform acts of a judicial character arising out of the acts of Congress, they may lawfully do so if not prohibited by the State law.

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