with those opinions, and are careful to indicate that they follow them only on the maxim stare decisis.

On the first of these two classes of opinions, no comment is necessary; such opinions depend entirely upon the value of opinions assigned to the second class.

In this second class the arguments are distinguishable as:

1. That which declares the power to be exercised by the commissioners to be the same which, by the law of 1793, was to be exercised by the magistrates of counties, cities, and towns corporate; that in Prigg's case and the earlier cases, it was decided that this power might be exercised by these officers; and that hence, on the authority of these cases, it must be held that the power is not the judicial power of the United States.

2. That which assumes a parallelism between the action of Governors of States, in delivering up fugitives from justice, and the action of commissioners in these cases; thus finding an argument from authority.

a condition for executive action, in order to accomplish some special and limited object, and not to try and finally determine the right between party and party, can be considered a 'case' for the judicial power of the United States, to be tried only by such a judge as the Constitution provides. Many instances may be put in which inquiries, in their nature judicial, are proper preliminaries to the action of the Government, where the Government cannot properly act without such inquiries, and yet they are manifestly not cases to which the judicial power under the Constitution extends, and accordingly, the mode of inquiry and the officers by whom it shall be made, are within the discretion of Congress. The question, who are the rightful claimants of money held by the Government under a treaty, and how much belongs to each, is one instance. The Government has the power to refuse to pay any part to any one. It desires to do justice, and for its own information has these inquiries made, as a condition and guide to its action. Of a like nature, so far as the power of Government is concerned, seems to me are the inquiries which are directed by this law. The Government has the power to refrain from acting at all. It thinks proper to act in aid of the master, who, by force of the Constitution, may seize and carry away the slave without the aid of the executive power. But before the aid of the executive power shall be granted, Congress directs that certain inquiries shall be made, and that the executive power shall be used only upon the finding, by the appointed officers, of certain facts. I cannot see why Congress may not require the marshal to act on these conditions if he [? it, i. e., Congress] sees fit.

"Let me not be understood to entertain the opinion that by changing the form of proceeding, or substituting a summary, for a regular judicial proceeding, Congress can enlarge its own authority or affect the rights of the citizen. The inquiry will arise in every case, which I have heretofore endeavored to consider in this case, whether Congress has the right to adopt and apply such a proceeding to the particular class of cases, and order the executive to act upon the result of such a proceeding.

"Having come to the opinion that in this class of cases Congress may do so, I feel no difficulty in saying that such a proceeding is not a case,' within the meaning of the Constitution, to be tried only by judges holding their offices during good behavior and for stated salaries."

3. That based on the doctrine that the constitutional provision contemplates summary proceedings, and that such proceedings do not involve judicial action.

4. That which, on elementary principles, declares that the power exercised is not in its quality that kind of power designated in the Constitution as the judicial power of the United States.

5. That which may be called argumentum ex necessitate or ab inconvenienti.

§ 905. 1. As to the first argument, it has been shown that there is not sufficient reason for saying that the Supreme Court in Prigg's case, or any State court, ever intended to justify the action of any magistrates of counties, cities, or towns corporate, under the law of 1793, as an exercise of any power whatever derived from the United States.

This argument is, therefore, defective.

§ 906. 2. As to the parallelism in the delivery of fugitives from justice. The parallel fails, because it cannot be shown that the Governors of the States, in making the required delivery, have exercised power derived from the United States. On the contrary, the authorities and reasoning from general principles indicate that the power is derived from the State.' The parallel is, therefore, defective. But even if the power of the Governors were derived from the United States, the parallel would not hold, because, under the wording of the provision respecting fugitives from justice-"shall be delivered up, to be removed to the State having jurisdiction of the crime"— and the presumption existing between sovereign states, and particularly between the States under the Constitution, the delivery of a person accused of crime is a preliminary proceeding in reference to a prospective exercise of judicial power.' This difference between the two acts of delivery will be again noticed hereafter.

§ 907. 3. As to the argument founded on the proposition that the Constitution authorizes a summary proceeding, and that such a proceeding cannot involve judicial action. The

Ante, §§ 848-850.

Ante, § 860.

question whether the claim arising under the Constitution may be determined in a summary proceeding, that is, a proceeding without the formalities of a trial by jury according to the course of the common law,-is to be considered in the next chapter. But, admitting that such proceeding is not contrary to the guarantees of the Constitution, this argument assumes that the quality of the power exercised depends upon the form of the act. It is not to be admitted that an act of judgment or decision which is exhaustive and complete, to apply a law and enforce its consequences on persons and things in and for a certain geographical forum, is ministerial, as opposed to judicial, if only performed in the way here called summary. The distinction between a ministerial and judicial act, is in the nature of the power, having regard to the elements of legal jurisdiction and the effect produced in legal relations between private persons. The distinction between summary proceedings and those not so, lies in the forms under which the power is exercised. Decisions which are most clearly of the judicial character may be given by a single judge; and an act of judg ment by the court alone is not less judicial than the determination of a mixed issue by a jury under direction of a court. In many countries the bulk of legal controversies are determined by a judge or judges, in a way more or less summary as compared with our practice. It would be absurd to say that in such cases there were no judicial proceedings, or that the judicial power was not there exercised. A colonial statute of Delaware, of 1760,' substitutes "a short and summary manner" for deciding cases of disputed freedom, in place of the common-law method. The proceeding prescribed is before a court hearing the proofs and allegations of the parties in a summary way." By a law of that State of 1852, these suits are to be tried in the Superior Court "in a summary way," from which an appeal lies to the highest court, as on any other solemn judgment.'

1 Ante, Vol. I., p. 507.

Ante, Vol. I., p. 292.

Ante, p. 81. Here may be noticed an argument which has been drawn, in some defenses of the law of 1850, from the eighth article of the compact between the New England colonies of 1643, to which reference has already herein been made, in construing the provision for the delivery of fugitives from justice, (Ante,

§ 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 criminal 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: "tune 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.

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

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.