"It is true, that in the early days of the Government, Congress relied with confidence upon the co-operation and support of the States, when exercising the legitimate powers of the General Government, and were accustomed to receive it upon principles of comity, and from a sense of mutual and common interest, where no such duty was imposed by the Constitution. And laws were passed authorizing State courts to entertain jurisdiction in proceedings by the United States, to recover penalties and forfeitures incurred by breaches of their revenue laws, and giving to the State courts the same authority with the District Court of the United States to enforce such penalties and forfeitures, and also the power to hear the allegations of parties, and to take proofs, if an application for a remission of the penalty or forfeiture should be made, according to the provisions of the acts of Congress. And these powers were for some years exercised by State tribunals, readily, and without objection, until in some of the States it was declined because it interfered with and retarded the performance of duties which properly belonged to them, as State courts; and in other States, doubts appear to have arisen as to the power of the courts, acting under the authority of the State, to inflict these penalties and forfeitures for offences against the General Government, unless especially authorized to do so by the State.

"And in these cases the co-operation of the States was a matter of comity which the several sovereignties extended to one another for their mutual benefit. It was not regarded by either party as an obligation imposed by the Constitution. And the acts of Congress conferring the jurisdiction, merely give the power to the State tribunals, but do not purport to regard it as a duty, and they leave it to the States to exercise it or not, as might best comport with their own sense of justice, and their own interest and convenience.

"But the language of the Act of 1793 is very different. It does not purport to give authority to the State executive to arrest and deliver the fugitive, but requires it to be done, and the language of the law implies an absolute obligation which the State authority is bound to perform. And when it speaks

VOL. II.-28

of the duty of the Governor, it evidently points to the duty imposed by the Constitution in the clause we are now considering. The performance of this duty, however, is left to depend on the fidelity of the State executive to the compact entered into with the other States when it adopted the Constitution of the United States, and became a member of the Union. It was so left by the Constitution, and necessarily so left by the Act of 1793.

"And it would seem that when the Constitution was framed, and when this law was passed, it was confidently believed that a sense of justice and of mutual interest would insure a faithful execution of this constitutional provision by the executive of every State; for every State had an equal interest in the execution of a compact absolutely essential to their peace and well-being in their internal concerns, as well as members of the Union. Hence the use of the words ordinarily employed when an undoubted obligation is required to be performed, 'It shall be his duty.'

"But if the Governor of Ohio refuses to discharge this duty, there is no power delegated to the General Government, either through the judicial department or any other department, to use any coercive means to compel him.

"And upon this ground, the motion for the mandamus must be overruled."1

§ 733. Chancellor Kent is probably the only author who views the provision for the delivery of fugitives from justice

In view of this opinion, it seems necessary to distinguish, besides the four already mentioned, another possible construction of this provision, according to which, the persons holding the executive authority of the State in which the crime was committed, and of that into which the criminal may have fled, are the subjects of the rule contained in the provision; the duty thereby created being a duty of the Governor of the State into which the fugitive from justice escaped, correlative to the right of the Governor of the State from which he fled, who makes the demand. The opinion carefully excludes the idea that an exercise of the judicial function is involved in the action of the Governor upon whom the demand is made. Hence, it must be inferred that the court would not base the power of Congress to legislate on the idea of carrying into execution a power vested in the judicial department of the Government, as under the third or the fourth construction before stated. If the court had held itself authorized to issue the mandamus prayed for, it might have been inferred that it would base the power of Congress to legislate upon the theory incidental to the second constructionthat the rule contained is law in the strict sense, which must be enforced by some superior. But in view of this decision, it is difficult to see wherein the Act of Congress has produced any effect beyond that caused by the provision itself.

in that light which would base the legislative power of Congress, in this instance, upon the theory of carrying into execution the power already belonging to the judicial power of the United States. In Kent's Comm. Vol. II., p. 32, note, it is said "I am not aware that there has been any judicial opinion on this provision; and as it stands, I should apprehend that on the demand being made, and the documents exhibited, no discretion remained with the Executive of the State to which the fugitive had fled, and that it was his duty to cause the fugitive to be arrested and surrendered (as has been done in one or more instances). I do not know of any power under the authority of the United States by which he could be coerced to perform the duty. Perhaps the Act of Congress may be considered as prescribing a duty, the performance of which cannot be enforced. The provision in the Constitution of the United States is not, however, to be regarded as a null and void provision, or resting on the mere will and pleasure of the State authorities. It is a substantive and essential grant of power by the people of the United States to the Government of the United States, and it partakes of a judicial character, and is fitly and constitutionally of judicial cognizance. The judicial power of the United States extends to all cases in law and equity arising under the Constitution, and the courts and judges of the United States within the State to which the fugitive has fled are the fittest tribunals to be clothed with the exercise of this power, so that the claimant might, on due application with the requisite proof, cause the fugitive to be arrested and removed or surrendered by the Marshal of the District, under regular judicial process by habeas corpus. To such a course of proceeding, and to such a source of power, I should rather apprehend the Act of Congress ought to have applied, and given facility and direction. Such a course of proceeding would be efficient, and more safe for the fugitive, and more consistent with the orderly and customary administration of justice. It concerns the common interest and intercourse among the several States, and is a branch of international jurisprudence.'

It is not clear whether Kent adopted the fourth construc

tion, under which a case arises in which the demandant State and the fugitive charged with crime are the parties, or that view, included under the third construction, according to which the demandant State and the national Government are parties in a case within the judicial power.'

§ 734. In pursuance of the analogy supposed to exist between these two provisions, as already indicated,' an independent inquiry into the true construction of this provision will be preceded by the citation of the authorities bearing on the construction of the provision for the delivery of fugitives from labor, and, in connection, on the power of Congress to legislate for the purpose of carrying the same into effect.

§ 735. There has never probably been an instance of an application to the Government of any State, or to the chief executive officer of any State, for the delivery of a fugitive from labor as a duty of the State under the first or the second construction.'

It seems to have been taken for granted that, if this provision creates a duty for the State, the Legislature must yet first authorize some person to make the delivery.

§ 736. In neither of the statutes passed by Congress is there any provision for the appearance of the national Government or of the State in which the fugitive from labor is found, as a party against whom a claim is made by the owner. This may be taken as legislative authority against the second and third construction.'

1

If by its actual legislation Congress has authorized the de

Story, in Comm. § 1811, has only a few words in justification of the fugitiveslave provision, and in § 1812 briefly vindicates the means provided by Congress in the Act of 1793. for carrying the two provisions into effect. These last will be cited post in Chs. XXVIII., XXIX. In the second edition, his editor, in § 1812 a. has given a summary of Judge Story's Opinion in Prigg's case, on the question of the powers of Congress, and of the States, to legislate on the subject, and given the Opinion in a note.

It is remarkable that nothing is to be found in the Federalist on these two clauses of the fourth Article; though, in No. 43, among the "miscellaneous powers" of Congress, some powers are considered which, according to the writer's (Mr. Madison's) view, are derived from some of the other provisions of the Article. From this it would seem that the authors of those letters did not give to these provisions any such construction as would be a basis for the legislative power of Congress.

2 Ante, p. 380.

4

See Parker, Ch. J., in 2 Pick., 19, and post, § 741. Compare the fuller statement of the parallel argument in § 729.

livery on claim of a fugitive from labor by persons who cannot, under the Constitution, hold the judicial power of the United States, it must be supposed that Congress has not proposed to carry into effect the judicial power of the United States in cases, according to the third and fourth construction.

The question whether the persons who have performed the actions authorized by the Acts of Congress relating to fugitives from labor have therein exercised power derived from the United States, and whether they have in such action carried out the delivery contemplated by the Constitution, will be hereinafter considered. If such action has in any cases been judicially justified as the exercise of power derived from the United States, and also as a full execution of the delivery required by the Constitution, such cases are authority against the idea that the legislation of Congress is intended to carry into effect powers vested in the judicial department.

The affirmation of the power in Congress necessarily involves the adoption of either the second, third or fourth of the constructions already stated, but does not of itself indicate which of the three has been received. But it may be observed that when, in justifying the legislation of Congress, it is affirmed that some legislation was necessary before the owner of a fugitive slave could make any claim in the State into. which he escaped, the court or judge must have adopted the second construction. And that when in any case it is held that, independently of the Act of Congress, the owner might lawfully seize and remove him, the third or the fourth construction may have been adopted.

$737. But in marshaling the cases on this point it is necessary to call attention to the important distinction between a right under the provision itself, to seize the fugitive without process (in order either to remove him from the State, or to bring him before some magistrate of the forum, i. e. the State, for the purpose of making the claim, on which he may be delivered up), and a right of such seizure for the latter purpose only; whether it is regarded as a right arising under the provision, or one arising under the legislation of Congress.