“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.”
Now, which is right, the attorney-general, with the President and his cabinet as indorsers, or Mr. Commissioner Curtis? I submit to you that the former were clearly right, so far as this,—that when the constitution declares that “no person shall be deprived of life, liberty, or property, without due process of law,” (which imports a trial by jury,) then neither Adam Gibson, nor Thomas Sims, nor any other alleged fugitive can be so deprived, without trial by jury, and the judgment or sentence of the “judicial power” thereupon. The following position has never been answered, and I think never can be, namely, that if a resident of Massachusetts can be deprived of his “liberty and property,” without a trial by jury and a judgment of a court, then he may be deprived of his life also; for “life, liberty, and property” are secured in the same section, in the same sentence, and by the same safeguard.
The attorney-general held that, as the power exercised by the commissioner was a “judicial power,” it deprived the party of all benefit from the habeas corpus. And there was some plausibility in this, though, I think, no soundness. But our defenders of the law hold that this sending of a man into bondage is not a part of the “judicial power,” and yet that it deprives him of all benefit of the habeas corpus. That is, they hold that a man may be deprived of his liberty and property, (and of course of his life,) by a ministerial proceeding, not having its origin in any court, and not to be prosecuted to final judgment in any court, and yet that all the courts in the land, competent to furnish relief in any other case, can afford none in this. If this be true, if a proceeding, held and acknowledged by the officer who initiates and conducts it to be a ministerial proceeding, not originated by a court, and never to be carried before a court, does thus take away the trial by jury, and the security of having one’s liberty and property adjudicated upon by a “court,” and renders the writ of habeas corpus an empty form, then, indeed, we may bid “farewell, a long farewell” to all our liberties. An unprincipled majority of Congress has only to pass a law that any man may be imprisoned or hanged on an executive warrant, and that the hireling marshal or commissioner shall suffer no “molestation by any process issued by any court, judge, magistrate, or other person whomsoever,” and despotic power will be enthroned here as effectually as it ever was in England in the bloody days of the Stuarts. Jeffries was at least a judge, though he acted like a commissioner.
Who could have imagined, eight months ago, that a ministerial proceeding could put a citizen beyond remedy or reach of our courts?
I now come to a position in the commissioner’s argument which is not only transparently fallacious, but is contradicted by himself, in the same opinion, again and again. I shall offer a series of objections to it.
The point was pressed upon him by counsel that he was exercising “judicial power.” To maintain this, a passage was quoted from Prigg’s case, in which the court say, “A claim made by the owner out of possession for the delivery of a 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.” Can any thing be more explicit and conclusive, to prove that the commissioner was then presuming to exercise a part of the “judicial power” conferred by Congress exclusively upon courts? And how does he answer it? In this way, and in this way only. He says the court decide two points:—
First,—That a claim for a fugitive slave is a case arising under the constitution of the United States, and so within the grant of “judicial power” as given by the constitution; and