The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-04-13

ancient periods Of which there IL any trace of his
Year Book a. Hen VIII fol- Is it is said that in the
Court OF Chancery there but Judge viz the Chan
cellor and presume 1t was never supposed that the
acts Of l3 Will Ill C. and J. Geo Ill. g. the great
statutes which regulated the commissions Of the ia iges
and their tenure of Office, had any application to the
Masters ofth Court Of Chancery.
In like manner, sheriff in England has judi
cial capacity, and performs several judicial functions
In his judicial capacity says Blackstone ~hs Is to
under in his county court and he has also judicial
power In divers other civil cases. "a Blackstone Com.
343 Yet the sheriff instead of being appointed qandl
be qessif and with stated salary Is appointed for
year and receives salary 4 80
1t Ii unnecessary to multiply these illustrations from
English usage to show that there is class OF inquiries
OF judicial nature constituting in the exer-
else Of judicial power and generally directed for spe-
cal purpose, which confded to officers who not
judges This usage is, in truth much older than the
very origin of English law and derived apparently
officers under the Roman law, called the Pedanei diees
the assistants Of the pretor whom he id the habit
Of delegatng some Of his Judicial dutic special
poses, who were allowed to receive gratutes from tho
parties for their services. (Dg H. /, l6 Just Novel
ixxxi 81 There is little doubt that the ONCE Of
Master was borrowed from this source
When we come to the practice of governments const
tutcd under writtcn constitutions ca fully
separating the judicial from the other powers
ment and strictly defining the tenure of the Judicial
office If we find the usage to prevail that it
extensively practised certainly shows that there exists
in system also class of inquiries judicial in their
nature and special in their purpose which may be
fded TO the determination Of officers who judges
The constitution OF this commonwealth declares that
't Judicial officers shall hold their Offices during good
behavior and shall be appointed by the Governor by
with the advice and consent of the Council The BI OF
Rights moreover with great stringency declares that
neither the legislative executive Judicial deparn,
shall ever exercise the powers Of either of the Others
the end may be government Of laws. and not Of "
Yet the legislature of this commonwealth have autho
rzd sheriff to preside at trials by juries summoned to
assess damages for laying out highways have mada it
his duty to decide all questions of Law arising the
trial which would be proper for the decision of Judge
and to direct the jury upon any questions Of law when
requested 10y any party and to certify to the court
with the verdict the substance of any decision
tion by him given when any party shall request it -
(Rcv Stat "a 232j OF course If neither party
does request the sheriff certify his rulings they are
final and conclusive and this constitutes in the IN ost
ample the exercise of judicial power by an officer
whom no one can suppose IL judge. In like manner
the courts to appoint auditors to hear matters
An auditor exercises judicial power. adjucates ami set
ties matters OF law and fact and determines present
right for although his decision il not final, yet it
changes the burthen Of proof from the plaintiff the
defendant If the adjudication is in favor Of the
Yet an auditor certainly Is not judge judicial
officer, within the meaning of the constitution
So also, the extensive and imposed by
statute upon commissioners constitute the
exercise Of judicial power can any one suppose that
II is not competent to the Legislature to regulate the
appointment and tenure Of Office of these officers.
coring 10 their pleasure, because the constitution
fixes the appointment and tenure Of Office Of all ju-
dcial officers - What Is tho Court Of County Commits
sions but tribunal exercising judicial power Yet the
appointment u county commissioners il sometimes vest
cd IN the executive and sometimes in the people
ing to the prevailing fancy of the Legislature.
IL Is not necessary to further with the practice of
this commonwealth. IL shows that here. elsewhere
Is we understood that there certain judicial unc
tion having special objects which are and must b. ex
crcked by inferior officers not appointed qualified,
commissioned as tha constitution Of the State requires
judges to be appointed, qualified and commissioned.
Tbs usage prevails nndcr the government OF tbs United
states Under that for instance there l. AN
ofhcer called Commissioner II Patents lie exercises u
dcia power for the question whether rival
inventors Is entitled TO patent, i arising under
the constitution and laws of the United States.
decision involves adjudication OF matters Of law and fact
between contending parties Moreover, the decision
the commissioner Is fual to present right; f,r AL
Though the validity Of the patent may be contested else
where yet the granting q the patent to party aud
not 10 the other clothes the party who receives IL with
the very right for which both conendng-the right
10 be deemed as against all the world prima G The
first inventor Of the thing patented Now, has
ever thought Of complaining Of the creation OF this oco.
as an improper mode Of exercising the judicial power oil
the United States.
There are others officers Of the United States whose
duties touch nearly the ordinary adm of
justice ia he courts Of the Unitrd in which cap
city now sit here. by act of Congress passed Feb
~ 1872 the Circuit Courts Of the United
Empowered to appoint commissioners To take bail anl
aidayits in civil BY subsequent act passed
extended to enable them to take dcposons To be usi
Ia the courts Of te United States. By stil more
cent act passed Aug ~ 81 their powers further
extended to enable them to and impris, for
trial persons committing offences against the laws of
the United States Nearly nine years thercf re- have
elapsed since these officers have been called upon ta x
crcife jud eal power. in arrcstng examining aud ina
prsoning offenders against the laws Of the United States
Hundreds and thousands Of seamen, and other perous
have by these commissioner been arrested examined
and impr oncd, and We have heard II Unlimited
that they ought fr to have been appointed by the Pre-
s.dcnt and commissioned for life Yet the power which
they ex,rcise l. part a the judicial power of the United
states. The result Of the examination Il dnal and
elusive fer special purpose TO wit the imprisonment
II the Iarty until trial 1T settles pro cent sht name
y that the party i be- deprived his liberty until
liked time shall arrive, when grand jury sh, deter
mine whether 70 find bill u indictm Mt against him
tg.l,a h.. H. gE
limited and special nature, conferred by Congress upon
officers who are not judges
The truth is then o. Il would seem that In every %.
vcrnmcnt q laws, administered by judiciary, there
must Dc class of Judicial inquiries embraced within
the general compass of the Judicial power. but from
their special limited and ministerial nature capab.
without violating any constitutional rule Of being With
drawn from the action of the courts AMI OIL
ccrs specially authorized 10 conduct them II my be
difficult TO define the boundary side Of which al
these would range themselves II might b. wholly
noSpedent TO define H. In written constitution That
exists iuris entertain any Doubt and II
10 me the only question In this H. whether Conss
In authorizing these summary proceedings before
missioner for the surrender of fugitive from service,
have passed that boundary or not.
am clearly ~ opinion that they have not; and this
brings 10 the consideration u the nature character
and effect cf this proceeding in regard which dpr
entirely the learned counsel for the prisoner le
maintains that this IL trial of tho right of Thomas
smms 10 his liberty, ard that y i final trial that Il i
ministerial auxiliary TO nothing whatever but that
the certificate = granted Thomas Smms Is consignt to
perpetual slavery Many Of the arguments employed by
petition CONSIST OF con-
lectures suggestions to what the climan. i ply
scay able tn do after hc gets the prisoner into h pos
session. II the learned counsel expects that in settling
a question ~ constitutional law and in determining
the character and effect ~ this proceeding am to look
out of tho statute away from what IL authorizes the
claimant TO do, and to indulge my Imagination to
what hc may do asidc from ", afraid that cannot
atisfy the expectation IL has however been argued
that the claimant may the certificate the moment
BE- receives IT, that he may carry the prisoner 10 any
other State to Cuba or Brazil and sell hun; that
" he takes him to Georgia he may hurry him into
ID, interior upon plantation and break down hi ,pi-
f aud refuse him all opportunity to obtain trial VI the
question of his freedom. These things which II is said
the claimant may do, gravely pat t. consider
ations upon which % determine what II u that the
United states undertakes to DO when II surrendcrs this
Tor moyal 10 the state IL Gcor5 am 4 opinion
at Til question Il TO be determined BY the provisions
Of the constitution and the act In question
IN the FIR place. then hold that the rendition II
pitivrs from service, under the constitution. il act
auanu the rendition Il fugitiycs from justice aud
that the two far the powers and luics II the
general government concerned, of the Same grn-
etal character and may appropriately be provided FOR