By the sixth article of the constitution, all “judicial officers” must make oath or affirmation that they will support the constitution. But there is no law requiring these commissioners to take an oath; and as a matter of practice, in some parts of the country at least, it is known that they take no such oath.
Now, by the act, a portion of the “judicial power” of the United States, the whole of which is, by the constitution, vested in one “supreme court,” and in “inferior courts,” is given to the commissioners. The fourth section says they “shall have concurrent jurisdiction with the judges of the circuit and district courts of the United States.” If the power of these courts, in the premises, is judicial, then the power of the commissioners, being the same, is judicial.
The attorney-general of the United States, in a written opinion, given by command of the President, declares that this power, so given to the commissioners, is judicial. The following are his words:—
“These officers, [the commissioners,] and each of them, have judicial power, and jurisdiction to hear, examine, and decide the case.”
“The certificate to be granted to the owner is to be regarded as the act and judgment of a judicial tribunal having competent jurisdiction.”
“Congress has constituted a tribunal with exclusive jurisdiction to determine summarily, and without appeal, who are fugitives from service. The judgment of the tribunal created by this act is conclusive upon all tribunals.”
Such is the opinion of the attorney-general of the United States, given upon the precise point, by order of the President of the United States.
But the point needed no authority to sustain it. It results inevitably from the very nature of the power conferred by the law. The decision of the commissioner is to be final and conclusive, and the subject-matter of the decision is liberty and property. The case cannot be reheard or reëxamined by any judge, or by any court, of any state, or of the United States. The decision acts in rem and in personam. It delivers the property to the claimant, and puts the body of the defendant into his custody. From that moment, if the law has any validity, the defendant is the slave of the plaintiff, by force of a “judicial” decision. The plaintiff, thenceforth, may control his actions, his words, his food, his sleep. If he chooses to exercise his authority in such a way, he can order his victim to carry him home on his back, and make him bear the loathsome burden of his person as well as of his will. Now, to say that the power which effects these results is not a judicial power, is to do violence to language, and to commit a fraud upon the inherent nature of ideas. In no case known to the common law, or indeed to any other law, is a plaintiff invested with full rights, except after final judgment.
If, then, this power is a “judicial power,” the constitution peremptorily forbids that it should be vested any where but in a “court,” whose “judges” are nominated, confirmed, sworn, hold office, are paid, and are removable, according to its requirements. Look at the constitutional distribution of powers. By the first article, all legislative power “shall be vested in a Congress.” By the second article, the “executive power shall be vested in a President.” And by the third article, “the judicial power shall be vested” in the courts. And it was just as competent for Congress to invest “commissioners” with supreme “executive” or “legislative” power, as to vest them with “judicial” power.
If, by good fortune, or by miraculous interposition, a captured freeman should afterwards obtain a hearing in a court of the state to which he had been carried, such hearing would, in no sense, be in the nature of a review of the former case, either by appeal, writ of error, mandamus, or certiorari. It would be by the institution of another suit, under another government. The relation of the parties would be reversed. The respondent who was kidnapped must be plaintiff, the plaintiff kidnapper, or some one claiming under him, must be defendant. Were the various possessory writs known to the English common law any the less “suits at common law”? or were the courts that tried them any the less judicial tribunals, because a writ of right could be afterwards brought, in which the previous judgments could not be pleaded in bar, and would be neither estoppel nor proof of title?