853. The argument of Mr. Marshall, afterwards the Chief Justice, in the House of Representatives, Feb. 20, 1800, on resolutions condemning the President's action in Nash's or Robbins' case, is regarded as the leading authority for the doctrine that this judicial inquiry is not an exercise of the coordinate judicial power or function, and that it properly takes place as subordinate and ancillary to the executive function.'

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laws of the place where the fugitive or person charged shall be found, would justify his apprehension and commitment for trial if the offence had been there committed. No provision is made for the action of judicial officers. The 10th article of the treaty with Great Britain, of 1842 (ibid. 572), provides for issuing warrants "by the respective judges and other magistrates of the two governments" "to the end that the evidence of criminality may be heard and considered" before them; and "if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive." The treaty with France, 1843 (ibid. 580), provides that the surrender on the part of the Government of the United States Ishall be made only by the authority of the Executive thereof;" and this only when the fact of the commission of the crime shall be so established as that the laws of the country in which the fugitive or the person so accused shall be found would justify his or her apprehension and commitment for trial if the crime had been there committed." No provision is made for the action of judges or magistrates. The Act of 1848, entitled An Act for giving effect to certain treaty stipulations, &c. (IX. Stat. U. S. 302), vested power, jurisdiction, and authority, in the judges of the United States courts, and in any commissioner authorized for the purpose by those courts, and in the judges of the State courts to issue warrants on complaint, to hear the evidence of criminality, and if, on such hearing, the evidence should be deemed sufficient to sustain the charge under the treaty, to certify the same, with the testimony, to the Secretary of State, who was authorized to issue a warrant of extradition. On the decision of the Supreme Court in Metzger's case (1846), 5 How. 176, this Act must be considered as declaratory of pre-existing law. To the same effect is Woodbury, J., in The British Prisoners (1845), 1 Woodbury and Minot, 72. Contra is Judge Edmonds in Metzger's case, 1 Barbour, 257, and according to the note, ib. 258, Judge Story was of the same opinion.

A full history of this case and the debates in the House is given in 1 Hall's Journ. of Jur. 18, and Wheaton's State Trials, 393. Marshall's speech is also in 5 Wheaton, App. I., and with the report of the case in Bee's Rep. 266. President Adams had requested Judge Bee, U. S. Dist., to arrest Robbins, " and to inquire whether or not he was guilty of the offence charged against him." The Judge, having satisfied himself of his guilt, reported to the President, and afterwards, by his direction, delivered the prisoner to the agent of the British Government. Mr. Marshall argued that the case was one for executive and not judicial decision. He admitted the division of powers stated by the supporters of the resolutions,

but objected to the declaration contained in them, "that the judicial power extends to all questions arising under the Constitution, treaties, and laws of the United States. The difference between the Constitution and the resolutions was material and apparent. A case in law or equity was a term well understood and of limited signification. It was a controversy between parties which had taken a shape for judicial decision." If the judicial power, he argued, were thus extended to every question, instead of "all cases arising," &c., the judiciary would encroach on the other functions. "By extending the judicial power to all cases in law and equity, the Constitution had never been understood to confer on that department

Though this argument may have quieted the House, it seems to have failed at the time to satisfy public opinion of the propriety of the President's course.'

§ 854. The doctrine that the power exercised by the judi cial officer is simply ministerial and ancillary to the executive function, seems also to be affirmed by Tilghman, J., in Commonwealth v. Deacon (Short's case), 10 Serg. & Rawle, 134, and by Woodbury, J., in The British Prisoners, 2 Woodbury and Minot, 66. Holmes v. Jennison, 14 Peters, 540, is by some authorities understood as affirming the necessity of coordinate judicial action; see Lewis' Cr. Law, 263; Edmonds, J., in 1 Barbour, 265.

855. In the year 1854, Thomas Kaine, on the application of the British consul, and without any direction from the executive department of the national Government, was committed to custody by "a commissioner appointed by the Circuit Court of the United States," after a hearing before him, to abide the order of the President of the United States in the premises.

The validity of this commitment was affirmed by Judge

any political power whatever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into court who can be reached by its process and bound by its power, whose rights admit of ultimate decision by a tribunal to which they are bound. A case in law or equity proper for judicial decision may arise under a treaty, when the rights of individuals, acquired or secured by a treaty, are to be asserted or defended in court,-as under the fourth or sixth article of the treaty of peace with Great Britain, or under those articles of our late treaties with France, Prussia, and other nations, which secure to the subjects of those nations their property within the United States, or as would be an article which, instead of stipulating to deliver up an offender, should stipulate his punishment, provided the case was punishable by the laws and in the courts of the United States. But the judicial power cannot extend to political compacts, as the establishment of the boundary line between the American and British dominions; the case of the delivery of a murderer under the 27th article of our present treaty with Britain.” The main argument which then follows is that the judicial power cannot be exer cised because the actual delivery or extradition is not within the capacity of the courts, but is a political and executive act.

'Catron, J., in Kaine's case, 14 How. 111. The Act of Virginia, 21 Jan., 1801, R. C. of 1819, p. 589, c. 161. 1 Robinson's Practice, p. 8. And the history of the controversy in 1 Hall's Journ. 18, and Wharton's State Trials, 393. But Judge Story has said, somewhere, that it " put the question at rest forever:"-quoted by Edmonds, J., in Metzger's case, 1 Barbour, 265.

"The commissioner being appointed under the Act of February 20, 1812, An Act for the more convenient taking of affidavits and bail in civil causes depending in the courts of the United States, II. Št. U. S. 679, and the supplementary Acts, Mar. 1, 1817, III. Ib., 350; Aug. 23, 1842, sec. 1, V. Ib. 516; and the rule of the Circuit Court of 1851, see 14 How. 142, 143.

Betts, who, on habeas corpus before him as Judge of the Circuit Court, remanded the prisoner. When return was made to Mr. Justice Nelson, as Judge of the Supreme Court at chambers, on another habeas corpus issued by him, he directed that it should be heard at the ensuing term, before the full bench. Upon this proceeding, as improper, no jurisdiction was taken by the court; but petition was made to the court for a writ of habeas corpus and certiorari, to bring up the proceedings before Judge Betts, in the Circuit Court, in exercise of its appellate power. (In re Kaine, 14 Howard, 118, 130.)

In the present inquiry it is material to know whether the court regarded the prisoner as then in custody under the original commitment by the commissioner, or under the decision of Judge Betts. A conclusion respecting the quality of the power exercised in declaring the prisoner within the terms of the treaty, could be drawn from the decision of the court only if the legality of the custody was based upon the action of the commissioner.'

Mr. Justice Curtis, who was the only member of the court who distinctly affirmed the prisoner to be in custody under the commissioner's warrant, in denying the motion, held that it could be granted, if at all, only in the exercise of the appellate and revisory power of the court, and that that power could not be here exerted because the acts of a commissioner cannot be the exercise of the judicial power. His language is (14 How. 119, 120):-"That no such control, by means of an appeal, writ of error, or other proceeding, can be exercised by this court over a commissioner acting under the authority of an Act of Congress, or under color of such an authority; and that this court has no power in any way to revise his proceedings, I' consider equally clear. In Ex parte Metzger, it was determined that a writ of habeas corpus could not be allowed to examine a commitment by a district judge at chambers un

A like inference might be drawn from a decision affirming the validity of a custody under a commitment by one of the "judges of the State Courts," mentioned in the Act of 1848, if it were equally necessary to suppose that in making it he had exercised power politically received from the United States. It is for the present assumed that the action of a State judge should be considered as an exercise of the concurrent judicial power of the State. In the British Prisoners, 1 Wood. and Minot, 66, it was held by Woodbury, J., that his action is ministerial.

der the treaty between the United States and France for the reason that the judge in ordering the commitment exercised a special authority, and the law had made no provision for the revision of his judgment.' The same reason applies to the action of this commissioner. Not only has the law made no provision for the revision of his acts by this court, but, strictly speaking, he does not exercise any part of the judicial power of the United States. That power can be exerted only by judges appointed by the President, with the consent of the Senate, holding their offices during good behavior, and receiving fixed salaries." (Referring to Const., Art. 3, sec. 10.)2

A conclusion against extending the appellate jurisdiction to the act of a commissioner would follow from this reasoning, whatever might be the quality of the power exercised. The

In the matter of Metzger (1846), 5 How. 176. He had been committed by Judge Betts of the U. S. District Court at chambers. Application being made to the Supreme Court of the U. S. for habeas corpus to review the action of the district judge, the question was of the extent of the appellate jurisdiction of the Supreme Court, and of its power to issue the writ under sec. 14 of the Judiciary Act. In the Opinion of the court, by McLean, J., ib. 191:-"There is no form in which an appellate power can be exercised by this court over the proceedings of a district judge at his chambers. He exercises a special authority, and the law has made no provision for the revision of his judgment. It cannot be brought before the District or Circuit Court; consequently, it cannot, in the nature of an appeal, be brought before this court." If it is determined by this decision that the power exercised was not judicial because the action was done at chambers, it must be held that the quality of an act of judgment depends on the place in which it is performed. But Judge McLean said, ib. 188:-"The mode adopted by the Executive in the present case seems to be the proper one. Under the provisions of the Constitution, the treaty is the supreme law of the land, and, in regard to rights and responsibilities growing out of it, may become a subject of judicial cognizance, Whether the crime charged is sufficiently proved, and comes within the treaty, are matters for judicial decision; and the Executive, when the late demand for the surrender of Metzger was made, very properly, as we suppose, referred it to a judicial officer." Judge Edmonds, of the State Court, afterwards discharged the pris oner; holding not merely that some act of legislation was necessary (1 Barbour, 257-261), but also that co-ordinate judicial power must be exercised in carrying a treaty of this kind into effect. Judge Edmonds (ib. 262) forcibly presents the alternative either the action of the judiciary here is judicial power and co-ordinate, or the Executive applies to the judiciary only as convenient, and may dispense with it altogether. Of the latter alternative he says:-"Such is the claim presented before me, and, if established, then is the liberty of the citizen, at least as respects extradition, subjected to executive discretion to an extent that is calculated to alarm even a country where freedom, in the aggregate, is so common that its invasion in detail is too often and too easily disregarded. [Remarkable words!] To meet an objection so formidable in its character, it is urged that the aid of the judiciary must of necessity be invoked in the execution of the treaty." 2 Judge Curtis could hardly have meant that the capacity or incapacity of a person to exercise the judicial power of the United States determines whether his action is an exercise of judicial power. But his language is not far from such assertion.

Supreme Court could revise the exercise of judicial power only when exercised by persons thereto qualified under this clause of the Constitution. But Judge Curtis intends to affirm expressly that the power exercised by the commissioners, in this matter, is not judicial power in its quality. This appears from his reference to Metzger's case, and also by his declaring (ib. 120) the power exercised by the commissioners to be of the same quality as that of a district judge and the Secretary of the Treasury under the treaty with Spain, of 1819, for the settlement of certain claims against the United States. The justness of this parallel will be considered hereafter.

Four other justices also refused the motion, though not taking Judge Curtis' position on the question of appellate power,' but on the merits. They affirmed Judge Betts' decision as correct; and, since he had remanded the prisoner to the custody in which he was held under the commissioner's warrant, they must be taken to have held that the commissioner had not in his action exercised the judicial power of the United States.

But the Opinion of this majority, delivered by Mr. Justice Catron, Justices McLean, Wayne, and Grier concurring, seems to support the doctrine that the action of the commissioners and judicial magistrates designated in the Act, in these cases, is not subordinate or ancillary to that of the executive function, but an exercise of the co-ordinate judicial function."

If the Supreme Court must refuse to hear appeals in cases where persons are in custody by commitment of a U. S. commissioner or U. S. judge at chambers, the only way the question of conflict of jurisdiction can be brought to the arbitrament of the Supreme Court, under the present system, is by carrying it through the State courts. See Judge Edmonds in Metzger's case, 1 Barbour, 266–267, and Mitchell, J., in Heilbonn's case, 1 Parker Cr. 438.

2 After referring to Robbins' case, Judge Catron said, 14 How. 112:-"But a great majority of the people of this country were opposed to the doctrine that the President could arrest, imprison, and surrender a fugitive, and thereby execute the treaty himself, and they were still more opposed to the assumption that he could order the courts of justice to execute his mandate, as this would destroy the independence of the judiciary in cases of extradition, and which example might be made a precedent in other cases; and from that day to this the judicial power has acted in cases of extradition, and all others, independent of executive control." And, on page 113:-" Congress obviously proceeded on this public opinion when the Act of 1848 was passed, and therefore referred foreign powers to the judiciary when seeking to obtain the warrant and secure the commitment of the fugitive, and which judicial proceeding was intended to be independent of executive action on the case. And such has been the construction and consequent practice under the Act of Congress and treaty by our executive department, as we are informed