The republic. [volume] (Washington [D.C.]) 1849-1853, 1850-11-05

cordlng TO Mr.. Justice STORY, a case is said to
arise under the Constitution, law, or treaty,
when either ga party comes into court to de-
mand something conferred upon him by the
Constitution, or law, or treaty." or "when
the correct decision of the case depends on the
construction of either"
| And, therefore, the jurisdiction vested in the
commissioners TO hear and determine cases arts
ing in China, between American citizens there,
is not in violation Of the Constitution, because,
besides other reasons, the treaty does not con-
| fer any right, nor does the parties right depend
on the Interpretation of the treaty-the law ex-
ecuting the treaty by merely providing tribu-
nal in China to hear cases arising, independent Of
the law or treaty, and to be Judged of by rules
| having no connexion with or dependence upon
any construction of the law or treaty; and
| hence these are not cases arising under the Con
| stitution, or law, or treaty.
And 50 also proceeding under the Fugitive
Slave law is not ''case" arising under the
| Constitution or law of the United States,
because neither confers the right of the master
to the service of the slave, nor can the decision
upon that right depend upon correct interpre-
tation Of either; the right is conferred by the
local law of the State from which the fugitive
may have fled and depends altogether upon
correct Interpretation of that laws to shear
and determine" that right, to interpret that
law, does not belong to the Judicial power of the
United States; but the United States being bound
| under the Constitution to cause the delivery up
Of tho IN, undor tho tra, tiap
to deliver up fugitives from foreign countries,
Congress directs the surrender in each case to
be made in such manner, and through the
agency of such officers, executive or Judicial,
as It's wisdom may deem best.
But further, on the authority of Mr.. Justice
STORY, ga casen to which, within the meaning
of the Constitution, the judicial power of the
United States extends, sis suit instituted ac-
cording to the regular course of Judicial pro
ceedings."
And on the same authority the provision of
the Constitution for the arrest and removal of
fugitive slaves contemplates Summary minis
terial proceedings, and not the ordinary course.
Of judicial Investigations. - Story, CHI. 40, S.
5000
Therefore proceeding for the delivery up of
fugitive slave is not lease" within the mean
lng Of the Constitution and hence it follows
that it is not within that judicial power which
the Constitution vests in courts of the United
States.
In order to be clearly understood, as so much
disingenuous sophistry has been used to mystify
this matter, and thereby produce prejudice and
aggravate opposition to the Fugitive Slave law,
we will state this distinction again, and more
concisely.
According TO the most eminent jurists of the
country, to constitute case falling within the
judicial power, as defined by the Constitution
of the United States, so far as concerns our pre-
sent, inquiry, two conditions must be found.
First, there must be something demanded
which is conferred by the Constitution, or
law or treaty Of the United States, OF cor
rect decision upon the demand must depend on
the construction of them OF one of them Sec
ondly, this demand must be made by suit
instituted according to the regular course Of ju-
dicial proceedings.
And, therefore, as these conditions are not
found in the proceeding for fugitive slave, such
proceeding is not, according 10 the Constitu-
ton, ga case" falling within "the judicial
power Of the United States"
Upon consideration Of all these instances,
and the rule Of discrimination which we
have stated and illustrated, il is evident
that tribunal acting under the United States
may be, in strict and proper speech, judicial
tribunal with the functions OF a court, and vet
not be a court Of the United States, within the
meaning Of the Constitution, and not possess
any part Of The judicial power mentioned by the
CONSTITUTIONAL which the territorial courts
and the ministers and consuls in China and
Turkey are examples; and also, that tribunal
may exercise, under the authority Of the United
States, certain judicial powers, and yet not be
properly court at all; while, by reason Of this
exercise Of judicial powers, il may not improp.
erly be called, in a general sense, judicial
tribunal; while in reference and contradstinc-
ton to the specific meaning Of the terms 'Judi-
cial power" and courts" as used in the Con-
stitution, its proceedings may and should be
termed summary ministerial proceedings, and
not judicial proceedings; and the tribunal itself
cannot, in strictness Of speech, be called court
Of which, magistrates and commissioners under
the law TO carry into effect extradition treaties,
and the Fugitive Slave law, and the proceedings
had before them, respectively, are examples.
In every investigation Of the meaning and
force Of words used in the Constitution, we
ought ever to bear in mind that our forefathers
had been English subjects, as colonies had
always possessed the system Of English law
and jurisprudence, and were familiar with that
system, both as itexisted in the mother country,
and as, with some notifications it existed here.
To this system Of law and Jurisprudence we
must refer for just Interpretation Of every
provision Of that instrument which speaks OF
courts and Judicial proceedings. Thus ex-
pounded, we shall come to the conclusion
that the judicial power which that instrument
intended 10 vest in courts Of a particular
organization was the same which the courts in
England, and in the Colonies and States, had uni
iormly possessed and exercised To enforce the
perpetual deposit Of that power in courts whose