The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-11-10
The Question or the Day.

The County judges having been appointed by
the United States Circuit Court for this district, in
accordance with the provisions of law, United
States Commissioners, under the several acts of
Congress providing for the creation and defining
the duties of those officers, Judge Johnson, of
Kings county, has declined to accept the appoint
ment, for reasons set ford in letter which has
been published in of the abolition papers. The
lener is confined to legal view OF such of the
duties of the commissioners as arise under the
recent act providing for the rendition of fugitves
from service, and far its terms are concerned
might be deemed conscientious and unexception-
able. But Why instead of allowing it to rest with
the court to which it was addressed, he's such hot
haste been exhibited publish il to small portion
of the world, in the columns of the Evening Post
The reason can be penetrated through the grave
garb in which il is clothed without the least diff
Guilty and no one will be at loss to perceive
Judge Johnson's abolition bias, and his purpose to
invite the opportunity TO review, under hdbeas
corpus, the power of a commissioner to hold fugi-
tives under the recent This is the plain truth,
without any judicial humbug or hypocrisy.
So much for the publication. We now propose
to deal with the remarkable logic OF this letter,
and, for that purpose, will take a fair start.
Shortly after Commissioner Gardiner had deli
vered up the slave Hamlet, in faithful compliance
with the provisions of the law, the Hon. VIM Jay,
of Westchester, now or formerly county judge,
addressed 10 Mr.. Downing, and a number of other
black gentlemen letter scarcely adapted to their
capacities for no doubt Downing, between the
time of rising in the morning and Of opening his
first oyster had found time to possess himself of
more correct knowledge of the laws and the constr
tut,op than that Latter exhihited Mr. law has
been pretty well known in this community for some
years past, IN connection with the negro race. He
is an abotonist of the sh ade and one of the
most fanatcal and persevering agtators. If
he had lived in the days OF. the Pilgrim Fathers, he
would probably have been banished at town
meeting, as ga pestiferous fellow, and mover of
sedition" The fact that he has held the Office to
which we have alluded and that he is one of the
sons of great patriot and learned jurist, has in
duced many well-disposed people to suppose that
reliance ought to be placed upon his representa-
tons. In order to see how much let us take one
of his Ietters-that Of which We speak-in hand
ca uno disco omnes He states that the duties of
United States Commissioners have heretofore been
confined to the taking of affidavits &C., and that
they were not deemed worthy of being entrusted
with judicial powers, until the late act invested
them with authority over the most sacred rights of
mankind. This is the substance of long TRADE,
and the COED, honest reader might believe it but
there is not word Of truth in IT, The fact is that
these officers have been ested with judicial
powers, in the sense denoted by Mr. Jay, for
many years, as every reader, whether of the
laws or of the newspapers, must be aware
They entertain complaints Of all criminal offences
against the laws of the United States and, ac-
cording to their Judgment, they commit or dis
charge, they admit to bail or refuse to bail, mail
robbers, pirates, murderes on the high seas, &s.,
&c. Thus they have long acted in many cases
involving both liberty and life In addition to this,
they have had, from the be ginning, equally penary
powers in the cases which arise under our treaty
stipulatons with foreign States, providing for the
extradition of fugitive crimnals-a class of cases
strictly analogous to those arising under the Fugi-
tive From Service" act, excepting in thsthat they
more generally concern the life and liberty OF white
men. So much for the facts of Mr.. Jay. His de-
duetinns equally reliable. He Is shocked that
the law should give control over the liberty of a
man, TO class of officers to whom it does not en-
trust the determination Of the ownership of horse
A similar remark would apply with equal force to
all tribunals of limited jurisdiction-the higher
the more stropgly-and is quite worthy of Dog
berry.
With Mr.. Jay, we believe, originated the idea
of the unconstutor atty of the exercise by listed
States Commissioners of the powers conferred
upon them by the Fugitive From Service act''-an
idea certainly worthy to be a scntllation from so
brilliant source. After having been promulgated
through various channels, in various crude forms,
Judge johnson has given il definitive shape in the
letter to which we have alluded, and TO which we
now turn. Let us take his own words
The constitution of the United States says that the
judicial power OF the United States shall be vested in
one Supreme Court and In such Inferior courts ~
Congress may, from time to time. ordsin and sstab
lish The power conferred upen by virtue OF this
order Of the Circuit Court IT, In one case at lssst,
known the Fugitive Slave law ito hear and deter
mine the Of such claimant on satissctory proof
being made of Identity &c But as Congress has not
conferred this power upon directly. and has not
ordained or established inferisr court and
mept, 1 am forced to question the authority under
which should be called upon to act we're to enter
upon the discharge of the duties Of the Office.
Passing by the singular obtuseness Of Judge
Johnson, in not being able to distinguish between
apower created and a person appointed to dis
charge il, we should like TO know what Congre.
has to do with the appointment Of individuals
to the exercise of public functions. The Senate
has, indeed, an advisory and conseHting power
in regard to the nominations Of the Presi dent; but
the powers Of the Congress Of the United States
are merely legislative. Congress may prescribe
the class, character and qualifications of the officer,
or officers, who may be charged with public
duty under its laws, but it cannot appoint the in
dividual, and of course cannot delegate power
which it does not possess. The constitution, how
ever, confers express authority on Congress to
vest the appointment Of officers in the courts of
law. Its language is
He 1.-THE Presidentl shall nominate and by and With
the advice of the Senate shall appoint smbassador
other public ministers and censuls judges Of the su
prene court and all other officers Of the United States
whose appointments not herein otherwise provid
ed for, and which shall be established by las. But
the Congress may, by Law vest the ap pointment Of
such inferisr officers ~ they think proper In the
Of departments.
But the most singular feature Of his letter is that
Judoe 1ohnaon in full concentration of the proba.