the alleged fugitive to a trial by jury, to decide the ques-tion of fact upon which his surrender depends. In the case of Jones vs. Van Zandt (5th How. R. 215 ) the act of 1793 came again before the court for its consideration;—and in the course of the opinion given in that case, the court says: "This court has already, after much deliberation, decided that the act of February 12th 1793, was not repugnant to the constitution. The reasons for opinion are fully explained by Justice Story, in Prigg vs Penn., 16th Peters 611" In the case of Moore vs. Illinois, (14th How., R. 13) the court state what was decided in the case of Prigg vs. Pennsylvania, and among the questions said to be decided in that case was this—"that the government is clothed with appropriate authority and functions to enforce the delivery [of fugitive slaves ] on claim of the owner, and has properly exercised it in the act of congress of 12th February, 1793." These are alll the cases which we have been able to find where the act of 1793 has come before the supreme court of the U. S. for review, and in none of them is the question of the power of commissioners to give the certificate to the claimant which authorizes the removal of the fugitive, discussed or decided.
These cases are equally silent upon the question (a most important one,) raised in this case as to the right of a person claimed as a fugitive from labor to have the facts which must be proved before he can be surrendered to the claimant, tried and decided by a jury. It is true that the act of 1793, provides for the surrender of the person claimed as a fugitive without such a trial and decision, and it is said in substance by the supreme court of the U.S. is the cases of Jones vs Van Zandt, and Moore vs. Illinois that the court did decide in the case of Prigg vs. Penn.that the act of Feb. 12th, 1793 was constitutional. Butupon looking at that case we find that the question of a trial by jury to determine the facts of the case, was not raised by the record, and was not discussed by the court in giving its opinion. We think it would be most unjust to that court.to hold that it has decided questions, which its judges have not even discussed, and which have not been before it for adjudication.
We are of opinion therefore, that, whatever may be the duty of this court in relation to. the question of the power of congress to provide by law for the surrender of fugitives from labor to the persons to whom their labor is due we are no at liberty to consider the question of the right of a person claimed as a fugitive to a trial by jury before he can be surrendered or delivered up to the claimant, as already settled by the court which has the power finally to decide all questions growing out of an alleged violation of the constitution of the United States, by an act of congress. We must consider the question as an open one.
It becomes therefore our duty to decide whether so much of the act of congress of September 18h, 1850, as provides that certain officers, called commissioners, shall decide the questions of fact which must be proved before the surrender of the alleged fugitive can take place, is valid and obligatory. We think that we are also called upon to decide whether the proceedings provided for in the act for establishing, judicially the fact of fire escape of the allged fugitive and the fact that he owes service or labor. are in conformity with the constitution of the United States. These questions are most grave and important; we would that we could avoid them, but they are forced upon us, and we are not at liberty to refuse to consider them.
We are of opinion that so much of the act of congress in question as refers to the commissioners for decision,the questions of fact which are to be established by evidence before the alleged fugitive can be delivered up to the claimant, is repugnant to the constitution of the U.S., and therefore void for two reasons,—1st, because it attempted to confer upon those officers judicial powers; and 2d, be cause it is a denial of the right of the alleged fugitive to have those questions tried and decided by a jury which, are think, is given him by the constitution of the United States. We have referred to the case of Martin vs. Huntcos Lessces, (1 Wheaten. p. 305,) and to art 3, sec., l. of the constitution of he United States, to show that congress can not vest any judicial power under the constitution except in courts. We are aware that congress has estabished courts in the various territories, and has provided for the appointment of judges with different tenure of office from that fixed by the constitution; but the power to appoint these judges supposed to be derived from art. 4, sec. 2, of the constitution, which provides that "congress shll have power to dispose of, and make all needful rules and regulations respecting the territory or other propety of the United States."
But, however this may be, we are no aware that the aurhority to vest any portion of the judicial power in any tribunals created by itself, except these mentioned section 1 of art. 3 of the constitution, is claimed for congress by any one, save in the single instance of judicial officers for the Territories belonging to the U.S., and for the District of Columbia. We think that the duties performed by the commissioners, under the act in question, are judicial in their character: as clearly so as those performed by a Judge in the ordinary administration of justice. He is obliged to decide upon the questions presented judically, and to give a certificate to the person claiming the alleged fugitive, which authorises his transportation to the State from whence he is alleged to have escaped, or withhold it as, he shall think proper, in view of the evdience submltted for his consideration. It is true that the act, by providing that the record made in the State from whence the alleged fugitive may have escaped, shall be conclusive evidence of the escape, and of the fact that the person claimed owes service or labor to he claimant, materially lessens the labor of the commissioner, but this does not alter the nature of the act which he performs;— it must be regarded as a judicial determination of the matter submitted to him. We are therefore of opinion, that the act under consideration, by attempting to vest judicial power in officers created by congress and unknown to the constitution, is repugnant to that instrument, and for that reason void.
And we think it equally clear that the constitution is violated by withholding from the person claimed the right to a trial by jury, before he can be delivered up to the claimant.
The fifth article of amendments to the constitution of the United States provides, among other things, that" no person shall be deprived of life, liberty, or property, without due process of law." Chancellor Kent, in his commentaries, (2 Kent com 2,) says, "it may be received as self-evident proposition and universally understood and ackhowledged throughout this country, that no person can be taken, or imprisoned,or disseized of his freehold, or liberties,or estate, or exiled, or condemned, or deprived of life, liberty, or property unless by the law of the land. or the judgement of his peers."
"The words (law of the land,) as used in Magna Charta in reference to this subject, are understood to mean, due process of lawful men that is, by indictment, or presentment of good and lawful men; and this, says Lord Coke, is the true sense and exposition of these words." We are aware that it has been said that slaves are not persons in the sense in which that term is used in the amendment to the constitution above referred to. But this, admitting it to be true, does not affect the question under consideration, as persons who are free are liable to be arrested and deprived of their liberty by virture of this act, without having had a trial by a jury of their peers. We do not propose to discuss the question whether a slave escaping Form the State where he is held to service or labor, into a State where slavery does not exist, thereby becomes free by virtue of the local law, subject only to be delivered up to be returned again to servitude, as it is a question not necessarily involved in the consideration of the subject before us. But we propose to examine the operation of the act up on a free citizen of a free State and to show that by it such a person may be deprived of his liberty "without due process of law." It will be observed that the claimant can go before any court of record, or any judge thereof, in vacation, and make satisfactory proof to such court or judge, in vacation, of the escape, and that the person escaping owes service or labor to such party.
It then becomes the duty of the court to cause a record to be made of the matters so proved, and also a description of the person escaping, and such record. bring exhibited to any judge, commissioner, or other officer authorized by law to cause persons escaping from service or labor to be delivered up, shall be held. and taken to be conclusive evidence of the fact of escape, and that the service or labor of the person escaping is due to the party in such record mentioned. The testimony is taken and this record is made in the absence of the person to be affected by the proceeding; he has no opportunity to cross-exmine the witnesses who depose to the facts which are thus conclusively proved; but without his knowledge evidience is manufactured, which, by virtue of this act, proves beyond question that he is a slave, and that he has escaped from servitude. We are at a loss to perceive how this proceeding, by virtue of which a freeman becomes a slave, can be justify called "due process of law," in the sense in which that language is used in the constitution. We are aware that is has been said that the pro-