in civil cases, under the thirtieth section of the CHAP. 1. Judiciary Act of 1789.

The power conferred by these two acts, to take affidavits and depositions, extends as well to suits in the admiralty as to those at law and in equity; and, as we shall see, these officers are now, by the rules of practice in the admiralty and maritime causes, empowered to take admiralty stipulations. By a late act(a), commissioners are further invested. with "all the powers that a judge or justice of the peace may exercise," under and in virtue of the sixth section of the act of 20th July, 1790, for the government and regulation of seamen in the merchant service. The power here referred to will be the subject of comment in the sequel. It is that of granting a summons in behalf of seamen to whom wages are due, calling on the master to show cause why admiralty process should not issue against the vessel; and if no sufficient cause be shown, granting a certificate authorizing the issue of such process(b).

(a) Act of August 23, 1842, ch. 188, § 1; 5 Stat, at Large, 516. (b) By the act last above cited, these officers are empowered "to exercise all the power that any justice of the peace, or other magistrate of any of the United States, may now exercise in respect to offenders, for any crime or offence, by arresting, imprisoning, or bailing the same," under and by virtue of the thirty-third section of the Judiciary Act of 1789. And by the second section of the same act, it is further enacted "That in all hearings before any justice or judge of the United States, or any commissioner appointed as aforesaid, under and in virtue of the said thirty-third section of the act entitled 'An act to establish the judicial courts of the United States,' it shall be lawful for such justice, judge or commissioner, where the crime or offence is charged to have been committed on the high seas or else

VOL. 2.

Commissioners in admiralty.

By Rule XLIV of the Rules of Practice in Causes of Admiralty and Maritime Jurisdiction, it is ordained that "In all cases where the court shall

where within the admiralty and maritime jurisdiction of the United States, in his discretion to require a recognizance of any witness produced in behalf of the accused, with such surety or sureties as he may judge necessary, as well as in behalf of the United States, for their appearing and giving testimony at the trial of the cause, whose testimony, in his opinion, is important for the purposes of justice at the trial of the cause, and is in danger of being otherwise lost."

By the act of August 8, 1846, ch. 98, § 6, it is enacted "That upon the necessary proof being made to any judge of the United States, or other magistrate having authority to commit on criminal charges against the law of the United States, that a person previously admitted to bail on any such criminal charge is about to abscond, and that his bail is insufficient, it shall and may be lawful for any such judge or magistrate to require such person to give better security, or, for default thereof, to cause him to be committed to prison; and, to that end, an order for his arrest may be endorsed on the former commitment, or a new warrant therefor may be issued by such judge or magistrate, setting forth the cause thereof." The terms "other magistrates having authority to commit," etc., have been understood to embrace commissioners. The policy of the act, and the relation it bears to the other enactments referring to the same general subject, and in which commissioners are expressly named, favor this construction. And by another act, passed August 8, 1846, ch. 105, entitled "An act more effectually to provide for the enforcement of certain provisions in the treaties of the United States," these officers, as well as the district and circuit courts of the United States, are empowered, upon the application of the consuls, vice-consuls or commercial agents of foreign powers with which the United States have entered into treaty stipulations to the effect mentioned in the preamble of the act, to issue process for the purpose of enforcing the awards and decisions of such consuls, etc., relative to controversies which may arise in our ports, between the masters and crews of vessels belonging to their respective countries.

There is still another power of great delicacy and high responsibility, which, as I have seen it stated in a newspaper, has, in one instance at least, been exercised by one of these officers, viz., that conferred by the Treaty of Washington, on "the judges and other magistrates of

deem it expedient or necessary for the purposes of CHAP. 1. justice, the court may refer any matters arising in the progress of the suit to one or more commissioners, to be appointed by the court, to hear the parties and make report therein; and such commissioner or commissioners shall have and possess all the powers

the two governments" of the United States and Great Britain, of issuing warrants for the apprehension of certain fugitives from justice, upon the requisition of the two governments respectively. The question is, whether these officers are "magistrates," according to the true interpretation of the term as used in the treaty. It is true that some of the powers specifically confided to them by law are the same as some of those exercised by public functionaries usually denominated magistrates: it is true, also, that these common powers are analogous to those conferred by the treaty. The title of magistrate, in its general sense, is very comprehensive. In the Treaty of Washington, however, it obviously imports a judicial officer. But a commissioner has no general authority. He can exercise only certain specific powers, expressly conferred upon him by special laws. He is not, by any of these laws, denominated a magistrate, unless the sixth section of the act of 1846, ch. 98, where the term "magistrate" is coupled with the words "having authority to commit," etc., forms an exception; nor is he designated by law, or by usage, under any of the names by which judicial officers are known. He is uniformly called a commissioner, with some addition descriptive of his functions. He is merely an adjunct and auxiliary to the judicial tribunals of the United States. He is appointed by the circuit court, as the clerk of the court is appointed, and who is also authorized, by special laws, to exercise, in cases of emergency, several powers belonging primarily to the court. Upon the whole, therefore, it would seem that there is at least ample ground for doubt whether these officers can lawfully execute the power conferred by the treaty upon magistrates.

The foregoing part of this note was printed in the first edition of this work, and the doubt mentioned at the conclusion of it has been corroborated, if not established by the act of August 12, 1848, ch. 167, passed about the same time, providing for the better execution of the treaty stipulation above referred to. The act, among other things, directs the appointment by the courts of the United States, of special commissioners, to execute the duties in question.

VOL. 2.

To what ex

tent the dis

trict courts,

admiralty,

are to be considered

as always open.

in the premises which are usually given to or exercised by masters in chancery in references to them, including the power to administer oaths and examine parties and witnesses touching the premises."

This rule sanctions the appointment of one or more commissioners to act in a particular case, pro hac vice; and a person so appointed would be, to the extent of his special powers, an officer of the court. But the rule doubtless also authorizes the designation of persons, at places where these services are likely to be often required, to act as commissioners generally, in cases as they arise. In the District Court of the United States for the Southern District of New-York, it has long been the practice, under one of the general rules of the court, and also in some if not all of the other districts, to refer matters of detail to the clerk of the court, eo nomine. This practice, it is supposed, may still be adhered to consistenly with this rule; and even if it be doubtful, the difficulty may be easily removed by appointing the clerk a commissioner for that purpose. In the English admiralty, references are made to the registrar, or, in cases requiring mercantile skill, to the registrar "and merchants;" and such is also the practice in the American courts.

The question, to what extent, or for what puras courts of poses the district courts of the United States, as courts of admiralty, are to be deemed at all times open, is one of primary importance, upon which some diversity of opinion has prevailed. The only reported case I have met with, in which the question has been brought under judicial discussion, is that

of The United States v. The Schooner Little Charles, CHAP. 1. before the late Chief Justice MARSHALL, on appeal from the District Court of the Eastern District of Virginia. The schooner had been seized and libelled for a violation of the embargo laws; and during the pendency of the suit in the district court, she was released from arrest and delivered to the claimant on bond, in pursuance of an order of the judge made at chambers; and the queston was, whether the order was valid, not having been made in open court. Chief Justice MARSHALL held that it was. "This objection," he said, "seems rather technical than substantial. By law, the district judge alone composes the court. He is a court wherever and whenever he pleases. No notice to parties is required; no previous order is necessary. The various ex parte proceedings which admiralty proceedings require, render this informal mode of acting essential to justice and expedition. The judge will take care that neither party be injured by the orders which he makes ex parte; and where they are of course, it is convenient that they should be made without the formality of summoning the parties to attend. It does not seem to be a violent construction of such an act(a), to consider the judge as constituting a court whenever he proceeds on judicial business. Such seems to have been the practice in this and in other districts of the United States. Had the judge prefixed to his order such words as these: 'At a special court, held at

on this

day

(a) The Judiciary Act, giving to the judge authority to hold special courts, previously referred to by the Chief Justice.