Page images
PDF
EPUB

by the State magistrates would be power politically derived from the State, and not from the United States. And this was probably the view of the other judges who considered the question.

§ 876. It will be objected that, since "magistrates of counties, cities, and towns corporate," have no power, in virtue of their office under the State Government, to act in the manner prescribed by the Act of Congress, the court, in maintaining the right of such persons to act in the manner so prescribed, must be taken to justify such action as the exercise of power politically derived from the United States; and that hence, in the present inquiry, the court must be taken to have decided that the power so exercised is not judicial in quality.'

But it will be noticed that the several judges always use the term State magistrates; and the question occurs, whether the court, or any single member of the court, intended to declare that the action prescribed by the Act of Congress might be performed by any person who may come within the description of magistrate of a county, city, or town corporate.

§ 877. The word magistrate has a very indeterminate use in our language. It is sometimes used to designate the possessor of the supreme power, but more commonly it is applied to judges of courts holding power strictly judicial, and to persons holding an inferior or more limited judicial power in connection with powers nearly connected with the administrative department of the Government. The extent of the functions of magistrates of the last class depends, both in England and America, upon special statutes, or is limited by well-established customary law. In Jacob's Law Dictionary, voc. Magistrate, it is said, "The rights and dignities of mayors and aldermen, or other magistrates of particular corporations, are more private and strictly municipal rights, depending entirely upon the domestic constitution of their respective franchises. The magistrates and officers whose duties are most generally in use and have a jurisdiction dispersedly throughout the kingdom

'This must have been the reasoning of Judge Shaw in Sims' case, 7 Cushing, 302, 308, and of Judge Nelson in his charge to the grand jury, Blatchford's C. C. R., 643. See ante, Vol. I., p. 501, n. 2.

Ante, Vol. I., pp. 508-510.

are principally these: sheriffs, coroners, justices of the peace, constables, surveyors of the highways, and overseers of the poor."

§ 878. It may have been that the court regarded the action of the Governors of the States, in delivering up fugitives from justice conformably to the Act of Congress, as an exercise of power derived from the State, on the ground that the provision in respect to fugitives from justice created a duty on the part of the State to deliver the fugitive when demanded by another State (adopting the first or the second construction), and that the power to act for the State in such international relation is incidental to the executive function.' But even if the court regarded the other provision as creating a like duty on the part of the State in respect to fugitives from labor (adopting the same construction), they could hardly have regarded an officer whose jurisdiction is limited to a county, city, or town corporate, as having, in virtue of his office, the like power to act for the State as a political person.

§ 879. It is important to notice that though, in the Opinion of the court, the question, whether Congress has power to legislate for the purpose of carrying the provision into effect, is very fully considered as preliminary to the question, whether, by such legislation, the States are precluded from passing any law on the same subject-matter, yet the constitutionality of the Act, in its details, is not argued, except by referring to the earlier cases. This is on page 621 of the report, where the court say:-"It [the validity of the Act of 1793] has naturally been brought under adjudication in several States in the Union, and particularly in Massachusetts, New York, and Pennsylvania, and on all these occasions its validity has been affirmed. The cases cited at the bar, of Wright v. Deacon, 5 Serg. and Rawle, 62; Glen v. Hodges, 9 Johns., 67; Jack v. Martin, 12 Wend., 311; S. C. 14 Wend., 507; and Com. v. Griffith, 2 Pick., 11, are directly in point. So far as the judges of the courts of the United States have been called upon to enforce it, and to grant the certificate required by it, it is believed that

[blocks in formation]

it has been uniformly recognized as a binding and valid law, and as imposing a constitutional duty.”1

It is true that, on the same page, Judge Story says:-"But we do not wish to rest our present opinion upon the ground either of contemporaneous exposition, or long acquiescence, or even practical action; neither do we mean to admit the question to be of a doubtful nature, and therefore as properly calling for the aid of such considerations. On the contrary, our judgment would be the same if the question were entirely new, and the Act of Congress of recent enactment. We hold the Act to be clearly constitutional in all its leading provisions, and, indeed, with the exception of that part which confers authority upon State magistrates," &c. The statement of the doubt on this point has already been referred to.

But it is certainly fair to conclude that the court did not intend to go beyond the earlier cases in affirming the constitutionality of the law in any particular not before the court, unless such intention can be shown from its positive expression.

§ 880. On examining the cases thus referred to by the court, it will be found that in Glen v. Hodges there was no certificate given by any public officer, either State magistrate or judge of a United States court, nor was the slave even committed or arrested by any such officer to answer to the claim of the owner. Nor was there any such certificate, commitment, or arrest in Commonwealth v. Griffith. The claimant in that case, if he intended to apply for a certificate under the Act, proposed to bring the slave before a judge of the United States Court.

In Wright v. Deacon, a certificate had been issued by Judge Armstrong, of the Common Pleas Court of Philadelphia. In Jack v. Martin, the Recorder of the City of New York had granted a certificate, and Judge Nelson regarded the slave as being in custody under it. But in the view of the case taken by the Court for the Correction of Errors, the validity of a custody under a certificate so granted was not inquired into. The question then is, could the Judge of the Common Pleas

[blocks in formation]

of Philadelphia and the Recorder of the City of New York have granted the certificate in these cases in virtue of power derived from the State? and may not the court, in Prigg's case, have regarded them as having acted in virtue of that power?

§ 881. In the former part of this work it has been shown that the national law may always be applied concurrently by the judicial power of the States, or, if not in all cases, certainly in those wherein the rights and obligations involved are such as were originally determinable by the authority of the States severally; provided the application of the law has not by Congress been made exclusive in the national judiciary.' There was no such limitation in these cases.

By the fourth construction of the provision (which has herein been presented as the true one) it, of itself, maintains the right and obligation in a relation between private persons, and the claim gives rise to a case within the judicial power. It has already been urged that one or more members of the court, in Prigg's case, may have adopted this construction.'

By the third construction (supposed to have been adopted by the majority of the court, in Prigg's case), the claim is on the national Government, and (according to Judge Story's view') gives rise to a case within the national judicial power. Such a claim certainly would not have been within the original jurisdiction of any State before that Government existed.

But whatever construction may be the true basis of legislation, the claim, when made under the Act of Congress, is the same as that which would have been made under private international law; the alleged fugitive defends, or denies the claim, and neither the national Government nor the State appears as a party.

It cannot be doubted that such a claim of a master for the person of the fugitive from service was a matter for legal decision originally determinable by the juridical power of each State.

§ 882. But it has been shown that the judicial power of the State can be thus concurrently exercised only by State officers 'Ante, Vol. I. pp. 492-503. Ante, pp. 582-584. Ante, p. 492. 'Ante, p. 480.

directly authorized by special legislation, or by those who are judges of courts of ordinary common-law jurisdiction.'

Could the judge of the Common Pleas of Philadelphia, and the Recorder of the city of New York, thus exercise the judicial power of their respective States?

The jurisdiction of the Common Pleas of the city of Philadelphia, under later statutes, seems to have been questionable in cases after Wright v. Deacon (1819), but it seems that, at the date of that case, that court was regarded as having ordinary common-law jurisdiction."

The court of the Recorder of the city of New York was one of special criminal jurisdiction, but the Recorder, at the date of Jack v. Martin, was also, under the charters of the city and statute modifications, one of the judges of the Court of Common Pleas for the city of New York, a court of ordinary or common-law jurisdiction succeeding to the older Mayor's Court, also a court of the same jurisdiction.'

The Recorder was also, by statute, empowered to exercise the powers of a judge of the Supreme Court of the State at Chambers, and to issue the writ of habeas corpus; and being so empowered, he was one of the officers authorized to issue the writ for the benefit of the claimant, and to decide the question in the manner provided by the State statute."

If the legislation of the States of Pennsylvania and New York, in respect to the delivery of slaves, was invalid by reason of the legislation of Congress on the same subject, it does not appear that judges of courts of ordinary common-law jurisdiction would have thereby been incapacitated from the exer

1 Ante, Vol. I., p. 500.

2 Palmer v. Commonwealth, 6 S. and R. 246; Kline v. Wood, 9 ibid. 296; Hoop v. Crowley, 12 ibid. 220, note; also, compare Dunlop's Laws of Pa. (1836), c. 416, §§ 18, 20.

Judge Daly's Hist. Essay, 47, 73, 78, in 1 E. D. Smith's Reports of N. Y. C. P.; Sess. Laws, 1821, p. 64, §§ 2, 11; R. S., Part III., t. 5, c. 1, §1; Davies' Laws relating to the City, 154, 157, 184; Laws of the City, ed. 1833, 122, 123, note; Murray v. Fitzpatrick, 3 Caines, 38. That Common Pleas Courts in N. Y. (at least before 1846, see Frees v. Ford, 2 Selden, 178) were of ordinary commonlaw jurisdiction, see Foot and Beebe v. Stevens, 17 Wend. 483. Hart v. Seixas, 21 Wend. 48; though of inferior jurisdiction, People v. Justices of Delaware, 1 Johns. C. 181; and had no jurisdiction of writ of right, People v. N. Y. Com. Pleas, Wend. 215. Compare question of jurisdiction of N. Jersey Com. Pl., in Kempe's Lessee v. Kennedy, 5 Cranch, 179, 185; S. C., 1 Peters' C. C. R. 37. R. S., Part III., ch. 3, t. 2, § 32.

4

R. S., Part III., ch. 9, t. 1, § 6 and § 25, ante, p. 57.

« PreviousContinue »