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§ 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 Ez 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

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1 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,

"In order, then, to determine whether the proceedings before a commissioner are judicial, let us see what is their result. He is to grant or withhold a certificate. What is the legal force of that certificate? It is merely an authority to carry the person named from one State to another. This is its whole legal effect. What may be legally done with that person in the State to which he is carried, depends upon the laws of that State, and not upon anything in the certificate. It is true that the certificate states that certain facts exist, that is, in the opinion of the commissioner. But those facts are not thereby judicially established, but may be controverted in any future proceedings between the same parties, and the certificate would not be even admissible in evidence. Neither party would be precluded from immediately contesting the same question in any other proceeding. If, for example, a suit for assault and battery and false imprisonment were brought in the Circuit Court against the claimant for the original arrest without a warrant,' and the justification set up was, that the plaintiff was a fugitive from labor, and were this question thus directly in issue, the certificate could not be given in evidence any more than the opinion of any other person.

"The remark made in the Opinion delivered in Prigg v. Pennsylvania, that a claim for a fugitive from labor was a case within the judicial power, was an obiter dictum, and can be reconciled with what was deliberately decided in the same case only by supposing that the judge who delivered the Opinion intended that Congress might legislate for it as within the judicial power, and provide for its being tried by a court, not that they must do so.""

§ 891. On the 17th of August, 1851, application was made to

that which arises under the provision, in the State where the claim is made, and that which may arise if the recovered fugitive claims freedom under the local law of the State to which he is taken. Legally, the matters in issue in these two actions, are quite different.

Is this suit supposed to be in the State wherein the claim has been made and the certificate given? But is such a suit supposable, when the defendant may carry off the plaintiff out of the forum in which the suit is brought? Or does the judge suppose the suit to be brought by the plaintiff, as a citizen of another State, in the United States Court in the slave State to which he has been carried? Judge Sprague had not the lights afforded by Dred Scott's case!

See ante, pp. 468, 540.

Judge Conckling, of the United States District Court for the Northern District of New York, for a habeas corpus on behalf of John Davis, in custody of a United States Deputy Marshal, acting under a warrant issued by H. K. Smith, United States Commissioner. "The application was denied by the judge for want of probable cause." IV. Monthly L. R. 302. The judge is reported (ib.) to have said:-"With regard to the Act, the judge said he did not consider himself at liberty to treat its constitutionality as any longer an open question. Nearly a year had elapsed since it received the sanction of the two houses of Congress, and, in accordance with the official opinion of the Attorney-General of the United States, the approval of the President. No act of the national government had ever more strongly arrested the attention of the American people, or been more closely scrutinized. It had been repeatedly brought under discussion and consideration before the judges and judicial tribunals of the country, both State and national, and in every instance its constitutionality had been unequivocally asserted and maintained. Among those by whom this opinion had either directly or indirectly been declared, are at least three of the judges of the Supreme Court of the United States, all of whom, moreover, are citizens of States in which slavery does not exist. Under these circumstances, Judge Conckling said it was, in his judgment, wholly unnecessary, and would be scarcely decorous, for him to enter upon the examination of the question at all. At an earlier period it would have been his duty to do so, and to be governed by his own independent conclusions; and this duty he should not for a moment have hesitated to perform." The motion for habeas corpus on the first petition was denied.

A certificate having been granted by the commissioner after hearing, a second application was made to Judge Conckling, on the 19th of August, who then discharged the prisoner, as a person not within the purview of the Act. (See his decision cited ante, p. 606.)

Judge Conckling, therefore, did not pronounce on the validity of a certificate in a case within the Act. But a portion of his Opinion is very important, as it bears on the question of

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