"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

the judicial action of the commissioner. In this case, the objection against the action of the commissioner, as being an exercise of judicial power, seems not to have been made, and the counsel for the claimant relied upon the principle, " that when, by a court of competent jurisdiction, a judgment in its nature final has once been pronounced, it cannot be reviewed on habeas corpus" (relying chiefly on Ex parte Watkins, 3 Peters, 193). See IV. Monthly L. R. 306. Judge Conckling, ib., 307, recognizing the principle, and referring to the language of the sixth section of the Act, which declares the conclusiveness of the certificate, said:-"Now, whatever ground for doubt, if any might have existed, independently of this enactment, concerning the legal force and effect of these certificates, it may, I think, be safely assumed that it was intended. by Congress to place them, in this respect, substantially on the footing of judgments rendered by judicial tribunals in cases within their jurisdiction."

1

892. On the trial of Allen, the United States Deputy Marshal, at Syracuse, New York, June 21, 1852, under the law of the State, for kidnapping the slave Jerry, the warrant issued by a United States Commissioner, and the arrest and custody under the warrant were specially pleaded. The supposed fugitive had been rescued from the marshal's custody before the claim could be heard and a certificate given by any court or commissioner. Judge Marvin's charge sustained the lawfulness of the custody under the warrant (ante, p. 60, note). But, strictly speaking, the right of a claimant under such a certificate to remove from the State a person claimed as a fugitive, was not involved in the decision of the case before Judge Marvin.'

In McQuerry's case (1853) 5 McLean, 469, ante, p. 501, Judge McLean said, ib. 481: The powers of the commissioner, or the amount of the penalties of the Act are not involved in this inquiry. If there be an unconstitutional provision in an Act, that does not affect any other part of the Act. But I by no means intimate that any part of the Act referred to is in conflict with the Constitution. I only say that the objections made to it do not belong to the case under consideration."

But the judge thought it necessary to consider the validity of the entire proceeding before a commissioner as contemplated by the Act. His view of the character of the commissioner's action is given as follows:-" It is further objected that the office of the commissioner is a judicial office, and that he is to adjudicate the question whether the fugitive was held to service or labor; in other words, whether

Certain persons charged with rescuing Jerry were held to bail Oct. 21, 1852, in the Western District of New York, by Judge Conckling, who is reported in the Syracuse Journal, Oct. 22, to have said, "The proceeding on the part of both the commissioner and the deputy-marshal appear to have been entirely regular. The fugitive was therefore lawfully restrained of his liberty by due process of law."

The case Henry v. Lowell and others, 16 Barbour, 269 (argued April 3, 1853), was an action of trespass against the defendants for having assisted the marshal on the occasion above mentioned. The validity of the Act in all respects was affirmed as established by previous cases. By the Court, Gridley, J., "It is insisted in the printed points submitted by the plaintiff's counsel, that the Act of Congress known as the fugitive slave Act is unconstitutional and void, and therefore that the defendant cannot justify under it. It is not, however, explained in what respect or on what grounds the Act in question is in violation of the Constitution. The former Act (of 1793) was adjudged to be in harmony with the Constitution in the case of Prigg (16 Peters, 539), by the highest tribunal known to our law, and that decision has been reaffirmed in

he is a slave or a freeman. The statute has not been understood as creating a judicial officer or court. My attention is directed particularly to the sixth section of the Act. It contains many particulars, and its language is not very clear. It provides that the commissioner may take depositions or affidavits in writing, and he is to certify them, or he may receive other satisfactory testimony which has been duly taken and certified by a court, magistrate, justice of the peace, or other legal officer authorized to administer an oath and to take depositions under the laws of the State from whence the person owing service escaped. He may receive proof, also by affidavit, of the identity of the person, and that he owes service or labor of the person claiming him, and that the person escaped, and, upon such satisfactory testimony, he is to make out and deliver to the claimant a certificate setting forth the substantial facts, as to the service or labor due from such fugitive to the claimant, and of his escape, with authority to such claimant to take and remove the fugitive to the State from which he escaped. The commissioner receives the depositions or affidavits, or testimony duly taken in another State, and if they are such as the statute requires, and establish the particulars mentioned in the statute, the commissioner must give the certificate which sets forth the facts ap pearing before him, and certifies to the authority of the claimant or his agent to remove the fugitive. He pronounces no judgment, he decides nothing except that the depositions, affidavits, and certified testimony are according to the statute and satisfactory; and he certifies the facts, with authority to remove. A case for removal being made out, the certificate is given. The rights of the person claimed to freedom are not concluded by these proceedings, in the State to which he is taken. There he can have a trial by and under the laws of that State, and the proceedings before the commissioner cannot be used as a judicial determination of the fact that he is a slave."-Pamphlet Report, pp. 96, 97.

the 5th of Howard's R. 215 (Jones v. Van Zandt). No important distinction has been pointed out by the counsel between that Act and the law of 1850, and we do not perceive any bearing on the question of its constitutionality. In several cases that have occurred, the provisions of the present law have been drawn in question, and the Act has been declared constitutional by Justice Curtis and Justice Nelson' of the Supreme Court of the United States, and by other eminent judges before whom the question has been raised. This uniform current of authority may well excuse us from a discussion of the question upon principle."

§ 893. In Booth's case (1854), 3 Wisc. 1, the relator was held by the United States Marshal under a mittimus issued by a United States Commissioner, for violation of the law of 1850, in having unlawfully aided, &c., a person named Joshua Glover, the alleged fugitive slave, to escape from the custody of the United States Deputy-Marshal, who "had then and there arrested and taken into custody the said Joshua Glover, by virtue of a warrant issued by the Judge of the United States for the said district, pursuant to the provisions of the Act of Congress in that case made and provided, approved Sept. 18, 1850," &c. In this case, therefore, there was not even any custody under a certificate given by a judge, and there had been no action by a commissioner in respect to the delivery of the

In referring to Judge Curtis as having sustained the validity of the Act, the court may have relied on his Opinion given as counsel for the U. S. Marshal (ante, p. 533), but more probably to his judicial action in the case United States v. Morris (Oct. 1851), in the Circuit Court for the first circuit, in which the defendant appears to have been indicted under the Act for a misdemeanor in the rescue of the slave Shadrach, while in custody under a commissioner's warrant. The question whether the jury could decide on the validity of the Act, was considered. Judge Curtis decided that they could not. The constitutionality of the law is not considered in the Opinions delivered by Judge Curtis on that occasion, which are reported in 1 Curtis, 23. The judge did, however, instruct the jury that so much of the Act of Congress as gave jurisdiction to commissioners, was constitutional. In certain charges to grand juries, given in App. to 2 Curtis, the subject of treason and resistance to the execution of the laws of the United States is presented. But the fugitive-slave law is not named. In citing Judge Nelson's authority, the reference undoubtedly is to the charge delivered in the southern district of New York, given in 1 Blatch. App. (ante, p. 659). Judge Nelson delivered, in the northern district, Oct. 21, 1852, another charge, given 2 Blatch. App. This has reference particularly to the offence of forcibly resisting the law. The judge's remarks are principally directed to the importance of the provision and the duty of fulfilling its obligations: speaking of it as a compact between the States.