UNCONSTITUTIONAL DELEGATION OF JUDICIAL POWER TO COMMISSIONERS WHO ARE NOT JUDGES.
There is still another objection from unconstitutionality, which may be treated more briefly; but it is not less decisive than the two objections already considered. It is founded on the character of the magistrate to whom is committed the adjudication of the great question of Human Freedom, than which none greater is known to the law.
If it were a question merely of property above twenty dollars,—if it were a question of crime, involving imprisonment under the laws of the United States,—especially if it were a question involving life,—the trial must be before a judge duly appointed by the President by and with the advice and consent of the Senate, holding office during good behavior, receiving for his services a fixed compensation, and bound by solemn oath of office. But this great question of Human Freedom is committed to the unaided judgment of a petty magistrate, called a commissioner, appointed by the Court instead of the President, holding his office during the will of the Court instead of during good behavior, paid by fees according to each individual case, instead of receiving for his services a fixed compensation, and not bound by any oath of office.
A claim for the rendition of a fugitive from service or labor, constituting as it does “a suit at Common Law,” and also “a case arising under the Constitution,” must be determined by a judicial tribunal. But a commissioner is not a judicial tribunal, nor is he in any sense a judge; so that he is not entitled, under the Constitution, to exercise this extraordinary jurisdiction.
As “a suit at Common Law,” the claim must be tried by the tribunal which has jurisdiction of such suits. But a commissioner can have no such jurisdiction.
As “a case arising under the Constitution,” it falls under the judicial power of the United States. But a commissioner is no part of this power.
Two provisions of the Constitution place this conclusion beyond question. First, by article three, section one, it is declared that “the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.” Secondly, by article three, section two, it is declared that “the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” Here it appears, first, who are the judges constituting the judicial power of the United States, and, secondly, what is the extent of this power. But a commissioner clearly is not a judge, or any part of the judicial power. Therefore, by inevitable conclusion, he cannot have jurisdiction of any “case arising under the Constitution.” But the Supreme Court has expressly decided that the proceeding by a claimant for the delivery of an alleged slave “constitutes in the strictest sense a controversy between the parties, and a case arising under the Constitution of the United States, within the express delegation of judicial power given by that instrument.”[368]
And yet a commissioner, dressed in the smallest and briefest authority, is put forward to determine this great case under the Constitution, and his judgment is declared final, and even without appeal. The Fugitive Slave Act proclaims expressly that he “shall have concurrent jurisdiction with the judges of the Circuit and District Courts of the United States”; that he shall “hear and determine the case of the claimant in a summary manner”; and that his certificate “shall be conclusive of the right of the person or persons in whose favor granted to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.”[369] Such are the plenary powers conferred upon the commissioner, together with an eminent jurisdiction concurrent with judges of the Circuit and District Courts. This Act, as originally introduced by Mr. Butler, before the substitute of Mr. Mason, intrusted this concurrent jurisdiction to the whole army of postmasters; but a trumpery commissioner, appointed by a court, is as little entitled to exercise it as a postmaster. It is not doubted, that, under existing statutes, a commissioner may be appointed to take depositions and acknowledgments of bail, and also to arrest, examine, and detain offenders for trial. Thus much a court may authorize; but a court cannot delegate to a commissioner the power of trying a cause, whether “a suit at Common Law,” or “a case arising under the Constitution”; nor can Congress authorize a court to delegate this power. The whole pretension is a discredit to the jurisprudence of the country.
Such are three principal objections to the constitutionality of this Act. One alone is enough. The three together are more than enough.