The republic. [volume] (Washington [D.C.]) 1849-1853, 1850-11-19
or might consider some other manner of proosed-


ing to be.
The next question is, whether this act contravenes
the first section Of the third article of the Consttu-
iionf This article relates to the judicial power Of
the United States, and vests il in one Supreme
Court, and such inferior courts Congress may
establish the judges of which shall hold their oftides
during good behavior, and shall receive sated sal
aries, mol TO be diminished during their continuance
in office. The argument. understand it, is that
the commissioners under this act exercise judicial
power; that they are not judges during good beha-
vior, and with stated salaries and their jurisdc-
ton is unconstitutional.
II Is impossible 10 come to a safe conclusion upon
this, or any other rule of the Constitution, by an
examination Of its mere words.
II has reference to great subject, in the minds
OF lis trainers, and unless that is seen, the terms
employed will not be understood as intended. No
one who keeps this in view can suppose that this
clause Of the Constitution intended to confine
all judicial inquiries, of whatever nature to Judges
described in this article. If it were 30, no ~
system Of equity VIII Illustration q that
yides for ,-:ea tne Consttutoh Itself pro-
Ior ages been necessary part. No commissioner
of bankrupts could be appointed under any system
OF bankrupt law which Congress pursuant to the
express power in the Constitution, might enact
NO Commissioner Of Patents could pass on the
claim OF an inventor, the conflicting claims of
different inventors. No justice of the peace in the
territory which the United States might acquire
Tor It's seat OF government, could discharge those
duties 80 long and usefuly known to the people.
And Congress could not delegate to any commits
sioners special and limited power to make any
judicial inquiry, for any purpose, without bringing
them within the acquisitions Of this article. II may
be added, that the practice of all depart ments of
the Government, since its existence, has upon this
assumption been continued series of violations of
the Constitution This ia hardly admissible, and
feel obliged Hook for some other Interpretation.
To solve this question, 30 far as it affects the mat
ter now before me. il seems only necessary to turn
to the next paragraph in the Constitution, which,
by defining the subjects Of the judicial power
shows what ID the meaning Of those same words in
the preceding sentence. The only clause which
can be supposed to touch these proceedings is
"cases arising under the laws of the United States;"
and the question is, whether this summary proceed
ing Is, within the meaning of the Constitution, a
case arising under the laws of the United States.
This seems 10 me to be answered by what has
heretofore been said respecting the nature of this
proceeding. One definition given of ga case' UNI
der this clause Is, suit in law or equity instituted
according to the regular course Of judicial pro-
ceedings," g Story's Coms. on Const. 507.) The
form OF the definition may be varied, but it does
not seem to me that a summary inquiry, designed
to operate as a condition for executive action in
order to accomplish some special and limited OBJ
ject 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 tiled only by such judge as the Constitution
provides. laasiE
Many instances may be put in which inquiries,
IN their nature Judicial, are proper premnaries to
the action of the Government, where the Govern
inent cannot properly act without such inquiries,
and Yet they are manilestly not 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 discre
ton OF Congress- The question, who are the right
full claimants Of money held by the Government
under treaty. and how much beongs 10 each, is
one instance. The Government has the power to
refuse to pay any part to any one. 1t desires to do
justice, and Tor It's own Information has these in
quries made, as condition and guide of its action
vi like nature, SO far as the power of govern
ment 10 concerned, seems TO me the inquiries
which are directed by this law. The Government
has the power TO refrain from acting at all. 1t
thinks it proper to act in aid of the master, who,
by lorce OF the Consultation, 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 thai certain In
CURES shall be nade aud that the Executive power
snail be used only upon the finding by the appoint
ed officers OF certain facts, cannot see why Con-
gress may not require the marshal 10 act on these
conditions If il sees fit 80 TO do.
Let me not be understood 10 entertain the opin-
ion that by changing the form Of proceeding, or
substituting a summary for regular judicial pro-
cceding, Congress enlarge its own authority or
affect the rights vi the citizen The inquiry will
arise IN every case, which have heretofore endea-
vored to consider in this case, whether Congress
has the right 10 adopt and apply such proceeding
to the particular class OF cases and order the Execu-
tive To act upon the result Of such proceeding.
Having come to the opinion that, in this class
- -----b S~--e ~ ~. fi Ais -ity -,
saying that such proceeding is not ga case - with
IN the meaning of the Constitution, TO be tried only
by judges holding thsir offices during good beha-
vlor aud for stated salaries.
AS 10 the objection that the act in question sus-
pends toe writ Of ha5eas corpus, you have before
you the opinion Of the Attorney General Of the
United States, and Of course you do not desire
mine. ii It be OF any importance to you, can say
that concur With him in the opinion that thi. OBJ
lection To the law is not tenable
] have expressed the best opinion which can
form on these questions. have treated them mere
ly as questions of law. II s nothing 10 you as a
executive officer, nor to Inc your legal adviser,
what the law ought TO be. What it is, being tie
only rule for your action and my consideration
Ii. X. CURTIS, 10 Court street.
BosToN, Nov. =, 1860