By the Court,
Whitok, C. J~.
The questions presented by this record are of great importance. A citizen of this State presented a petition to a justice of this court, setting forth that he'was unlawfully deprived of his liberty, and praying that a writ of habeas corpus might be issued to bring him before the said justice, together with the cause of his imprisonment, in order that he might be liberated, if, upon investigation, it should be ascertained that his confinement was illegal.. The writ was issued and served, and the prisoner brought before the officer ; and such proceedings were there had, that the prisoner was discharged. A writ of certiorari was issued to bring the record of these proceedings before this court, in order to correct any error that might have been committed.
The first question that presents itself, is, whether the writ of certiorari can properly issue from this [50] *n a case the present. It is contended by the relator (Booth,) that the writ ought not to have been issued, because we have no power to remand him -j-jagk; again to the custody from which he was discharged. But this, if true, would, as the matter appears to us, constitute no objection to our jurisdiction. It would only show that, if we should be of opinion that the relator was improperly discharged, we should not have the power to give entire relief in the premises ; but a simple reversal of the order of discharge, by this court, without remanding the prisoner, would enable the person from whose custody the relator was discharged, to retake his prisoner. The Constitution of this State, (Art. 7, Sec. 8,) gives this court power to issue writs of “ Habeas Corpus, Mandamus, Quo warranto, Certiorari, and other original and remedial writs, and to hear and determine the same.” We held in the case of the Attorney General, vs. Blossom, 1 Wis. R. 317, that this power was not granted to the Supreme Court merely to enable it to enforce the jurisdiction conferred upon it in other parts of the Constitution, but, on the contrary, that this clause of the Constitution conferred jurisdiction upon this court to issue the writs mentioned, in all proper cases. It follows that this court has the power to issue any of the writs enumerated, in any case proper for their issue, and to hear and determine them.
It will hardly be contended that this is not a proper case for the exercise of this power. A judicial decision has been had, by force of which a person has been discharged from imprisonment, and those who have an interest in having the imprisonment continued, as public officers or otherwise, and from whose custody he was discharged, have a right to the proper [51] writ or process to "bring the case "before this court for revision. And the writ of certiorari is the proper one for that purpose. We therefore think that this objection of the relator is untenable.
The nest question presented is, whether a justice of this court has the power to issue, in vacation, a writ of Habeas Corpus, and make it returnable before himself at chambers. It is contended by the plaintiff in error, (Ableman) that as this power is given by the statute, (Rev. Stat.,chap. 124, sec. 3) to “judges of the Supreme, Circuit or County Courts” only, a justice of this court has no power to issue the writ. The reason given to sustain this position, is, that at the time the act conferring this power was passed, there were no justices of the Supreme Court; that the Constitution of the State provided for the election of circuit judges ; and that by force of the Constitution they were to be judges of the Supreme Court for five years, and after-wards, until the Legislature should otherwise provide.
It is further urged in support of this position, that the provision in the Constitution providing for the organization of a separate Supreme Court, after the expiration of five years, (if the Legislature should see fit to establish one,) and the organization of the present court by virtue of this provision, show that the justices of the court should do no act which can come before the court for review; it being the intention of the framers of the Constitution and of the Legislature which passed the act regulating the manner in which the writ of Habeas Corpus is to be issued, that the present court should not sit in review upon any decisions made by one of its members ; thus avoiding what was thought to be an evil, while the Supreme Court was composed of the circuit judges.
[52] "We no^ fbink fbis objection well taken. The act to provide for the organization of this court, (Sess. Laws 1852, chap. 395, sec. 4) expressly declares chief justice and associate justices of this court shall be subject to all the duties and liabilities to which the judges of the former Supreme Court were subject. Among those duties was that of granting writs of Habeas Corpus, when applied for in a proper case; and we think that we should be guilty of a gross violation of duty, were we to refuse them merely because the case might be reviewed before the whole court. The Legislature have a right to impose any duty upon us as a court, or upon the justices who compose the court, which is not incompatible with the Constitution ; and we do not think that the term “ Separate Supreme Court,” which is applied to this tribunal, necessarily implies that the justices of the court cannot be empowered by the Legislature to do any act which may come before the whole court.
The next question is, whether the writ ought to have been issued, it appearing from the petition of the relator that he was imprisoned by color of legal process issued by a Commissioner of the United States for the district of Wisconsin. It is insisted by the counsel of the plaintiff in error, that in all cases the general comity of courts which have concurrent jurisdiction, leaves the case to the court whose jurisdiction first attaches, and that such jurisdiction cannot be taken from the court by subsequent proceedings in any other court of concurrent jurisdiction. It is further insisted, that this rule applies on higher grounds to courts of the distinct jurisdiction of the States and the United States, and that the process and proceedings of commissioners form no exception to [53] this rule, as they are officers of the courts, and recognized as part of the judicial organization of the United States. We do not see how these commissioners can properly he called officers of the courts of the United States. It is true that they are appointed by the judges of those courts, but neither the courts nor the judges are responsible for their acts. On the contrary, their duty and power are prescribed with particularity in acts of Congress. The courts have no power to direct them as to the mode in which the duties imposed upon them by law shall be performed, and it seems to us to be a great misuse of language to call them officers of the courts. Nor do we think that they can, with any propriety; be called judicial officers. The Constitution of the United States, art. 3, sec. 1, provides 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 superior and inferior courts, shall hold their office during good behavior, and shall at stated times receive for their services a compensation,which shall not be diminished during their continuance in office.” In the case of Martin vs. Hunter's lessee, 1 Wheaton R. 305, the Supreme Court of the United States say, after quoting this section of the Constitution: “ Could Congress create or limit any other tenure of the judicial office? Could they refuse to pay, at stated times, the stipulated salary, or diminish it during the continuance in office ? But one answer can be given to these questions ; it must be in the negative.” And again, in the same case : “ Congress cannot vest any portion of the judicial power of the United States, except in the courts ordained and established by itself.” We there-[54] d° n°t see how these commissioners can be regarded as a part of the judicial organization of the United States. But the position assumed by the counge} £01. -¿Pe plaintiff in error, that the court whose jurisdiction first attaches to a case will retain it, notwithstanding that proceedings may be subsequently commenced in other courts of concurrent jurisdiction, is, we think, indisputably correct. It is a familiar principle, and will be denied by no one. But the question arises, whether the facts stated in the petition of the relator for the writ of Habeas Corpus, show such a case.
It will not be denied that the citizens of the State naturally and properly look to their own State tribunals for relief from all kinds of illegal restraint and imprisonment. These courts are clothed with power sufficient for their protection, and would be recreant to their duty were they to refuse to exercise it upon all proper occasions. We do not think the principle contended for by the plaintiff in error applies to a case of this nature.
The petitioner stated, in his petition for the writ, that he was restrained of his liberty by reason of a pretended warrant, a copy of which is annexed to the petition. By that it appears that Winfield Smith, acting as a commissioner of the United States, had, upon an examination of the petitioner for an alleged offence against the laws of the United States, ordered the petitioner to recognize with sufficient sureties in the sum of two thousand dollars, for his appearance at a term of the District Court, to be held at Madison on the first Monday of July then next, and that, in default of the recognizance, the marshal was commanded to deliver him to the common jail, <fec. The warrant [55] recites that the petitioner had been charged on oath “ with having, on the eleventh day of March, eighteen hundred and fifty-four, at the city of Milwaukee, in the county of Milwaukee, in said county and district, unlawfully aided, assisted and abetted a person named Joshua Glover, held to service or labor in the State of Missouri, under the laws thereof, and being the property of one Benammi S. Garland, and having escaped therefrom into the State of Wisconsin, to escape from the lawful custody of Charles C. Cotton, a deputy of the marshal of the United States for the district of Wisconsin; the said Chaxdes C. Cotton having then and there arrested and taken into custody the said Joshua Glover, by virtue of a warrant issued by the judge of the United States for said district, pursuant to the provisions of the act of Congress in that case made and provided, approved September eighteenth, eighteen hundred and fifty.”
In order to show that the ease is within the principle in question, it must appear that the District Court of the United States had the case pending before it which was made by the issuing and service of the writ of Habeas Corpus ; that the question of the legality of the imprisonment of the petitioner was then pending before that court; and this the facts in the case do not show. At most, they merely show the case of a person arrested upon a charge of having committed an offence, and an imprisonment in order to compel his appearance before the court which has the power to try him. In such a case, the investigation of the legality of his imprisonment does not necessarily involve an inquiry into the question of the guilt or innocence of the prisoner, nor of his liability to be held to answer for the alleged offence.
[56] Tims, if the imprisonment is by virtue of a warrant issued by a State magistrate, any officer in the State, authorized to issue the writ of Habeas Corpus, may exam^ne the cause of his imprisonment, and may discharge the prisoner upon his giving bail for his appearance at the proper court, to answer for the offence with which he is charged, if bail has been refused by the magistrate, and the officer who issues the writ of Habeas Corpus should be of opinion that the offence was bailable. So if the magistrate has no authority to imprison. So if the warrant of commitment should set forth no offence, and the commitment should be for that reason irregular, unless proof should be offered with the return of the writ, to show that the prisoner was guilty of an offence. Rev. Stat., chap. 124, sec. 21. In these cases and many more which might be put, the question of the legality of the imprisonment is investigated without ousting a court of any jurisdiction which it has acquired. Nor do we think the question is changed by the fact that the officer who issued the warrant by virtue of which the petitioner was imprisoned, was an officer of the United States. In many cases the State courts and United States courts have concurrent jurisdiction. In some the jurisdiction of the State courts is exclusive ; and in some that of the United States courts is exclusive. When the jurisdiction is concurrent, the court whose jurisdiction first attaches will retain the case, and the other courts will not interfere, as in no other way can a conflict between the different courts be prevented ; and, of course, when a court has exclusive jurisdiction, no other court can take jurisdiction.
But if the conclusions we have arrived at are correct, the jurisdiction of no court is disturbed by issu[57] ing a writ of Habeas Corpus and discharging a prisoner who has been committed by an inferior magistrate for refusing to procure bail for his appearance at some court, to answer for an alleged offence, or when bail has been refused and the prisoner is held in custody.
In Sims’ case, (7 Cush. R. 285) the Supreme Court of Massachusetts saw no objection, on this account, to issue a writ of Habeas Corpus to bring before the court a prisoner in the custody of a marshal of the United States, under a'warrant issued by a commissioner of the United States, though the court refused the writ for other reasons. See also 7 Cowen's R.. 471; 10 Johnson's R. 328.
It was insisted by the counsel for the plaintiff in error, that our statute (Rev. Stat. chap. 124 sec. 28) interposed an insurmountable objection to the jurisdiction of a State officer in a case like the present, because it provides that the officer shall, although the commitment be irregular, remand the prisoner to custody, or hold him to bail, if it appears from the testimony offered with the return that he has been guilty of an offence. In such a case it is insisted that the officer acts as an examining magistrate, whose duties he cannot discharge if the offence proved is one of which the United States courts have exclusive jurisdiction. But we think that whatever difficulties this section of the statute may create as to the proper course to be pursued by the officer, in a case of that description, it should not be construed so as to deprive a State court or officer of the power to issue the writ in all cases where a citizen of this State is held in custody on the ground of an alleged violation of a law of the United States. The same difficulty would [58] P1,esen* itself if a State magistrate should commit a person to prison for .refusing to give bail for his appearance at a court of the United States, to answer £or an 0£fence against the laws of the United States, under the act of Congress approved September 24th, 1789.
There being no valid objection to issuing the writ and bringing the prisoner before the officer, the question arises, whether the discharge of the prisoner was in accordance with law. The return of the marshal to the writ of Habeas Corpus sets out substantially the same reason for the detention of the prisoner as that stated in the petition for the writ above given, so that there is no necessity for re-stating it. The first objection taken to the return, is that it does not set forth a valid warrant. Upon this subject we fully concur in.the opinion of the justice of this court who discharged the prisoner. The warrant fails to state any offence under the act of Congress in question, inasmuch as it does not show for what purpose Joshua Glover, therein named, was in the custody of the deputy of the marshal. He may have been in custody pursuant to the act of Congress approved September 18th, 1850, and not have been arrested as a fugitive from labor. The warrant does not therefore state that the petitioner aided, abetted or assisted a person who was arrested as a fugitive from labor, to escape from custody. This is essential in order to constitute an offence against the act of Congress. We are aware that it is sufficient in a warrant to state the offence, without that particularity required in an indictment; but still there must be at least a general statement of the offence, in order to justify the arrest.
It is further objected to the return of the marshal, [59] that, admitting Glover to have been arrested as a fugitive from labor, under the act of Congress approved September 18th, 1850, still his arrest was unlawful for the reason that the act is repugnant to the Constitution, and therefore void. And it is contended by the relator that it can be no crime to abet or assist a person to escape from illegal imprisonment, without using force or violence. The principal reasons urged in favor of this position of the relator, are that the Constitution of the United States confers no power upon Congress to legislate upon the subject of the surrender of fugitives from labor; that the act in question attempts to confer judicial power upon commissioners and not upon courts ; and that by virtue of the act a person may be deprived of his liberty “without due process of law.”
On the other hand, it is contended by the plaintiff in error that these questions are not now open for discussion, as they have all been settled by the Supreme Court of the United States ; and that as that court is the only one which has the power to settle finally the question of the constitutionality of an act of Congress, all other courts are bound to acquiesce in its decision. It is not of course claimed by the plaintiff in error that the act of Congress in question has been before that court for consideration, but it is contended that an act passed by Congress February 12th, 17 93, (1 U. S. Stat. at large, 302) contains provisions not distinguishable in principle from those of the act of September 18th, 1850, and that that court has decided this act to be valid and obligatory. We do not understand that the two acts are in all respects alike in principle, or even similar. The act of 1793 provides for the surrender of fugitives from justice, and also [60] fugitives from labor, and so far as it relates to the latter description of persons, it is similar to the act of 1850. But the two acts differ essentially in the manner -n -fcPg surrender is to be effected. By the former, the person to whom the service or labor was due, was authorized to seize or arrest the fugitive, and to take him before any judge of the circuit or district court of the United States, residing or being within the State, or before any magistrate of a county, city or town corporate wherein such seizure or arrest was made, and upon proof to the satisfaction of such judge or magistrate, either by oral testimony or affidavit taken and certified by a magistrate of any such State or Territory, that the person so seized owed service or labor under the laws of the State from which such fugitive fled, to the claimant, it became the duty of-the judge or magistrate to give a certificate thereof to the claimant, his agent or attorney, which was sufficient warrant for the removal of the fugitive to the State or Territory from which he escaped. It will be observed that the alleged fugitive was to be taken before some judge of the Circuit or District Court of the United States, or before some State magistrate, who decided upon the question of the surrender of the fugitive to the claimant, upon proof to be submitted to him. ITe had the power to weigh the testimony and to decide upon its sufficiency. The act of September 18th, 1850, differs from that of 1793 in two essential particulars. By the former certain officers called commissioners are authorized to make the surrender and give the certificate, and the testimony to show the fact that the alleged fugitive owes service or labor, and that he has escaped, is not to be weighed by the commissioner, but has an effect given to it by the act, [61] independent entirely of the opinion of the commie-sioner in regard to its sufficiency. The tenth section of the act provides that when any person held to service or labor in any State or Terri tory, or in the District of Columbia, shall escape therefrom, the party to whom such service or labor shall be due, or his agent or attorney, may apply to any court of record therein, or judge thereof in vacation, and make satisfactory proof to such court, or judge in vacation, of the escape aforesaid, and that the person escaping owed service or labor to such party. Whereupon the court shall cause a record to be made of the matter so proved, and also a general description of the person so escaping, with such convenient certainty as may be, and a transcript of such record authenticated by the attestation of the clerk and of the seal of said court, being produced in any other State, Territory or district in which the person so escaping may be found, and being exhibited to any judge, commissioner or other officer authorized by the law of the United States to cause persons escaping from service or labor to be delivered up, shall be held and taken to be full and 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.
It can hardly be claimed, we think, that any adjudication upon the act of 1193 could decide all the questions involved in the act of 1850. But we will examine the cases referred to by the counsel for the plaintiff in error, upon this point. The act of 1193 received a very elaborate examination in the case of Prigg vs. Commonwealth of Pennsylvania, 16 Peters R. 640. The question, however, involved in the record before the court, was simply whether Prigg, the [62] plaintiff' had the right to seize without process in the State of Pennsylvania Margaret Morgan, a fugitive slave, and remove her to the State of Maryland, from which she had escaped, contrary to the statute of the former State. The decision of the court was, that he had the power, and the court reversed the judgment of the Supreme Court of Pennsylvania, which had affirmed the judgment of the court in which Prigg was convicted. The principal question discussed by the justices of the court who gave opinions, was, the power of Congress to legislate upon the subject of the reclamation of fugitives from labor; and they were all of opinion that Congress had the power ; a majority holding that the power was exclusive, and that the State could not pass laws even in aid of the legislation of Congress. In the course of this discussion nothing was said in relation to the powers of commissioners, for those officers did not exist at the time when the act of Congress was passed ; nor of the right of the alleged fugitive to a trial by jury to decide the question of fact upon which his surrender depends. In the case of Jones vs. Van Zandt, 5 How. R. 215, the act of 1793 came again before the court for its consideration ; and in the course of the opinion given 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 their opinion are fully explained Justice Story in Prigg vs. Penn., 16 Peters 611.”
In the case of Moore vs. Illinois, 14 How. R. 13, the court states what was decided in the case of Prigg vs. Penn., and among the questions to be decided in that case was this : “ That the government is clothed with appropriate authority and functions to enforce [63] the delivery (of fugitive slaves) on claim of the owner, and has properly exercised it in the act of Congress of February 12th, IN 9 3.” These are aH the cases which we have been able to find where the act of 1793 has come before the Supreme Court of the United States 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 befoi*e 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 United States, in 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 February 12th, 1793, was constitutional. But upon looldng 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 tliat court to hold that it has decided questions which its judges have not even discussed, and which have not even 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 not at liberty to con-[64] aider question of the right of a person claimed as fugitive to a trial by jury before he can be surrendered or delivered up to the claimant, as already set-py the court which has the power dually 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 18th, 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 the escape of the alleged 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 United States, and therefore void for two reasons: First, because it attempts to confer upon those officers judicial powers ; and second, because it is a denial of the right of the alleged fugitive to have those questions tried and decided by a jury, which we think is given him by the Constitution of the United [65] States. We have referred to the case of Martin vs. Hunter's Lessees, 1 Wheaton 305, and to article 3 section 1 of the Constitution of the United .States, to show that Congress cannot vest any judicial power under the Constitution except in the courts provided for in the clause of the Constitution referred to. We are r.ware that Congress has established courts in the various Territories, and has provided for the appointment of judges with a different tenure of office from that fixed by the Constitution ; but the power to appoint these judges is supposed to be derived from article 4 section 2 of the Constitution, which provides that “ Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States.”
But, however this may be, we are not aware that the authority to vest any portion of the judicial power in any tribunals created by itself, except those mentioned in section 1 of article 8 of the Constitution, is claimed for Congress by any one, save in the single instance of judicial officers for the Territories belonging to the United States, and for the District of Co-umbia. 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, judicially, and- to give a certificate to the person claiming the alleged fugitive, which authorizes 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 evidence submitted for his consideration. It is true that the act, by providing that the record made in the State from whence the alleged [66] fugitive may Lave escaped, shall be conclusive evidence of the escape, and of the fact that the person claimed owes service or labor to the 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.
Ahd 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. 3) says : “ It may be received as a self-evident proposition, universally understood and 'acknowledged 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 judgment 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 law ; 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.”
[67] We are aware'that it has been said that slaves are not persons in the sense in which that term is nsed 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 virtue 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 from .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 upon 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 being exhibited to any judge, commissioner or otheyfficer 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. This testimony is taken, and this record is made, in the absence of the person to be affected by-the proceeding. He has no [68] opportunity to cross-examine the witnesses who depose to the facts which are thus conclusively proved ; hut without his knowledge, evidence is manufactured, which, hy virtue of this act, prove* 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 justly called “due process of.law,” in the sense in which- that language is used in the Constitution. We are aware that it has been said that the proceedings before the commissioner do not determine the question of freedom or slavery, that the fugitive is only sent back to the State from which he is alleged to have escaped, and that when he reaches there he is a freeman or a slave as his status shall be determined by the local law. It is further said that these proceedings are analogous to those by which the fugitive from justice is delivered up to be taken to the State from which he has escaped; that a person may be arrested by virtue merely of an indictment or an affidavit made before a magistrate, charging him with treason, felony or other crime committed in some other State, and that upon the production of a copy •of the indictment or affidavit certified as authentic by the governor or chief magistrate of the State.or Territory from which he fled, he shall be delivered up to be taken back. ' ^ is said that as this proceeding does not deprive the. person of his liberty in the sense in which that term is used in the Constitution, but merely delivers him up to be ta'kcn to the State where, according' to the indictment or affidavit, the offence was committed, to be dealt with according to the local law, so, neither do these proceedings accomplish more than the mere transfer of the alleged- fugitive [69] to the State where, as is claimed, he owes'service labor by force of the local law. We think this is a mistaken view of the question. The fugitive from justice is delivered to an agent appointed by the ■governor of the State where the offence is alleged to have been committed, without any adjudication upon the question of his guilt or innocence ; in other words, he is delivered to the officer of the law, and is in the custody of the law for the purpose of being taken to the State where alone he can be tried for the alleged offence. But the case is very different with the alleged fugitive from labor. Iñ his case there is an adjudication before the commissioner that he owes service labor, and that he has escaped. By force of the act of Congress under consideration, the record made the State from which he is said, to have escaped conclusive evidence that his status is that of a slave»
The commissioner is obliged, if his identity is proved, so to adjudge, and the certificate which is given to the claimant is given because the commissioner has so adjudged. Moreover, the commissioner can only give, the certificate to the claimant, who must be the person to whom the labor or service is due, his agent or attorney, and it is given to him for that reason. It is-not material to enquire what the condition of the person will be when he has been taken to the State where the service or labor is said to be due. ITe may regain his freedom, but if he does, it will be by force of the law of- the State, and not by virtue of the act of Congress under consideration ; for under that he has been adjudged a slave, and by force of it he has been taken as- a slave by the person adjudged to be his ownei, his agent or attorney, from the State where he was ki rested, to the State from which he is alleged [70] ^’° have escaped. We are therefore obliged to con-elude that the alleged fugitive from labor is taken back to the State ■ from which' he is said to have es-eapecl, as a person who has been proved and adjudged to be a slave, and, as we believe, without due process of law, without having his rights passed -upon and determined b}^ a jury ,of his peers. We think it essential that his right should be maintained by all courts and all tribunals, and, for the reasons above given we must affirm the order made in this case, discharging the relator.