are before a commissioner, "he shall be entitled to a fee of ten dollars in full for his services in each case, upon the delivery of the said certificate to, &c., or a fee of five dollars in cases where the proof shall not, in the opinion of such commissioner, warrant such certificate and delivery," &c. If the Act is invalidated at all by this objection, it must be by the effect of some common-law principle that the persons intrusted with the administration of the laws should be removed from all prospect of pecuniary gain, &c. But the principle, if it obtains at all, would seem to apply only to persons holding judicial power, as distinguished from ministerial, and the action of the commissioners is valid only if ministerial.

The objection above stated was raised in McQuerry's case. Judge McLean's answer to it is probably the only one which has been judicially declared. It is particularly to be noticed, in connection with the proposition upon which most of the questions arising under these Acts depend, that the action of the judge, magistrate, or commissioner, is preliminary to judicial proceedings in the State from which the person claimed is supposed to have escaped. The judge says, 5 McLean, 481:"In regard to the five dollars, in addition, paid to the commissioner, where the fugitive is remanded to the claimant, in all fairness it cannot be considered as a bribe, or as so intended by Congress; but as a compensation to the commissioner for making a statement of the case, which includes the facts proved, and to which his certificate is annexed. In cases where the witnesses are numerous and the investigation takes up several days, five dollars would scarcely be a compensation for the statement required. Where the fugitive is discharged, no statement is necessary."

Judge McLean assumes that the material part of the certi ficate is a statement of evidence to be used in the State from which the person delivered up is supposed to have escaped and to which he may be taken. Hence he argues that, when the commissioner decides to deliver up, he has the labor not only of making out a certificate, but of stating all the evidence upon which he has decided.

The judge probably rested his opinion on that clause, in the

6th section of the Act, which requires the commissioner "to make out and deliver to such claimant, his or her agent or attorney, a certificate setting forth the substantial facts as to the service or labor due from such fugitive to the claimant, and of his or her escape from the State or Territory in which such service or labor was due to the State or Territory in which he or she was arrested, with authority," &c.

The very slender inference which may thus be drawn from this clause does, indeed, appear to be all which can be produced, to show that the commissioner's action in granting the certificate is preliminary to ulterior judicial proceedings.

It is plain, from what has already been said on the nature of the commissioner's action, that the fullest statement of the evidence before him would not vary the essentially judicial character of his decision.' But it does not appear that the commissioner is required to set forth the evidence as given before him, but only to state the substantial facts-that a certain person was held to service or labor in a certain State by its laws, and that he did escape therefrom. To suppose that the commissioner's statement of these facts, as they appeared to him, would be taken to preclude all controversy on the question of their truth in the judicial proceeding in the State from which the person delivered up is supposed to have escaped, would be to place the commissioner's finding on the level of a judgment, or equivalent to offering it in support of a plea of res judicata. But the possibility of this was excluded by the propo sition that the commissioner does not exercise judicial power.'

Even if the commissioner were to set forth the evidence itself upon which he had granted the certificate, it is plain that such evidence could not be received in any ulterior judicial proceedings in the State from which the person delivered up is supposed to have escaped. For if he had been held to service or labor by the law of that State, and had escaped from it, the evidence of those facts must be found in that State; and the evidence to be produced before the commissioner, according to the first part of the 6th section of the Act, and as provided by the 10th section, is actually taken in that State.

'Ante, §§ 912-917.

2

Ante, § 915.

§ 952. If the validity of these Acts of Congress is to be admitted, other practical questions may present themselves in reference to the remedial process by which the claim is to be presented, the proofs on which its legality is to be decided, and the method in which the delivery to the claimant is to be carried into effect. So far as these questions are not dependent on the general law of evidence, they are mainly questions of formal proceeding, and determined by the language of the statutes themselves, and may be passed over without any particular consideration.'

953. The third and only remaining inquiry, in considering the means provided by Congress for carrying into effect the provision for the delivery of fugitives from labor, relates to

3. The penalties by which rights and obligations created by the provision, or by ancillary legislation of Congress, may be secured and enforced.

The fourth section of the Act of 1793 gives a penalty, for the benefit of the claimant, of five hundred dollars for the acts of obstructing or hindering the claimant in arresting the fugitive, or of rescuing the fugitive after arrest, or of harboring and concealing after notice; saving, moreover, to the claimant, his right of action on account of these injuries.❜

The seventh section of the Act of 1850 declares that the person who may commit these acts shall forfeit and pay, by way of civil damages, to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost

1 Administrator of deceased owner may claim and may appoint agent to claim under the Act of 1793, Commonw. v. Griffith. 2 Pick. 18. Letter of attorney is not required for that appointment. Ib. So is Giltner v. Gorham, 4 McLean, 402. But contra apparently is Driskell v. Parish, 3 McLean, 631.

As to what acts will constitute the illegal conduct intended, see Hill. Low, 4 Wash. C. C. 329; Jones v. Van Zandt, 2 McLean, 596, S. C., 5 Howard, 215; Driskill v. Parish, 3 McLean, 631, S. C. 5 ib. 64; Giltner v. Gorham, 4 McLean, 402; Ray v. Donnell, et al., ib. 505; Norris v. Newton, 5 ib. 92; Weimar v. Sloane, 6 ib. 259; Van Metre v. Mitchell, 2 Wallace, Jr., 311, which were actions for the penalty. Also, Glen v. Hodges, 9 Johns. 67; Kauffman v. Oliver, 10 Barr, 517; Oliver v. Weakley, 2 Wallace, Jr., 324, which were actions for damages,

By 2 Wallace, Jr., 326, under the Act of 1793, if the plaintiff sues in debt for the penalty of $500, which it gives for illegally harboring and concealing, he may recover it upon proof of such harboring and concealment, irrespectively of any proof of actual damage to himself. But if he brings case on account of the injuries for which the Act saves a right of action, he can recover only to the amount of actual damage which he shows he has suffered.

as aforesaid, to be recovered by action of debt, in, &c. No saving is made of any other right of action, and it would appear that no civil remedy was intended to be given for any damage which might occur to the claimant by such conduct, unless the fugitive should thereby be enabled finally to elude his pursuit. Whether it is within the competency of Congress to limit the amount of compensation for actual damage where the fugitive has been placed beyond recovery, and whether the claimant can, independently of legislation, recover civil damages in that case or in cases in which he has been delayed and obstructed in his pursuit, though finally successful-would appear to depend upon the question, whether the rights of the claimant to recover his slave are such only as exist by the legislation of Congress, or are conferred by the Constitution itself. This, again, will depend upon the true construction of the provision. The maintenance of any action for damages irrespectively of the penalty given by either Act, seems to support the fourth construction of the provision, by which it operates as private law.

If the right to damages exists under the provision itself, operating as private law, it would seem that the action might be brought in the State courts; for the national municipal private law contained in the Constitution is part of the law of each State. This view may be sustained by Glen v. Hodges, 9 Johns. 67, ante, p. 438. But in Kauffman v. Oliver, 10 Barr, 516, ante, p. 494, the court, even while it affirms that the claimant, under the provision, may seize and remove the fugitive, denies that he has any remedy except such as may be given by the legislation of Congress.' The same doctrine may have been held in Jones v. Van Zandt, 2 McLean, 596, 601.'

§ 954. The Act of 1850 differs from the earlier statute also, by declaring, in the seventh section, such illegal conduct punishable by fine and imprisonment.'

1 Judge Coulter, in this case, appears to have understood Prigg's case as deciding that the whole subject matter is removed from the whole juridical power of the State, that neither the judiciary nor the legislature can notice any right under the provision.

*In Johnson v. Tompkins, 1 Bald. 571, ante, 441, the action was for damages; but the right of action appears to have been supported by the law of the State.

Campbell Kirkpatrick, 5 McLean, 175,-that the action for the penalty and the prosecution can only be brought in the United States District Court, and cannot be removed into the Circuit. As to what is rescue, &c., see Scott's case, IV.

It may appear very reasonable to say that, whether a right of a private person is given by the Constitution itself, operating as private law, or by the legitimate exercise of the legislative power of the national Government, it will be in the power of Congress to protect that right by fines not "excessive," and by punishments not "cruel and unusual."1

If the power of legislation in reference to the subject-matter of this provision is based upon the theory herein before relied on, Congress cannot do more than is necessary to maintain the exercise of the judicial power of the United States, in reference to the cases which arise under these provisions, according to the fourth construction.'

Under the theory advanced in Prigg's case, supporting a power in Congress to legislate for the general object of carrying these provisions of the Constitution into effect, it would be very easy to educe the power to punish the conduct declared by these statutes to be unlawful.

It has been seen that, according to some authorities, the fugitive from labor, by the effect of the provision, is in the same status as in the State by whose laws he was held in bondage.

Mon. L. R. 159, and the indictments of Booth and Rycraft, given in 3 Wisc. 183; and of Bushnell and Langston, in 9 Oh. 77. The cases, United States v. Morris, 1 Curtis, 23, and United States v. Stowell, 2 ib. 153, were under other statutes, for obstructing the officer in executing legal process.

19 Oh. 215, Peck, J. :-" It is claimed that the law is unconstitutional because it interferes with the local police regulations of the State, and imposes severe pains and penalties upon citizens of the State where the fugitive is apprehended. These questions have not, that I am aware, been raised heretofore; but are, in my judgment, very easily answered. It, after all, resolves itself into a mere question of power in Congress to legislate at all, in regard to the reclamation of fugitives from service. If Congress has the power to regulate, by law, the demand and delivery of the alleged fugitive-to enforce the right of the owner and prohibit interference by others-it must necessarily follow that, to the extent deemed necessary for the enforcement of the right and its corresponding duty, Congress may constitutionally interfere with local police regulations of the several States, and, to render their regulations effective, must, necessarily, have the constitutional power to impose fines, imprisonment, and other sanctions upon a violation of the enactment."

So, if Congress has power to legislate in reference to carrying into effect the 1st clause of the 2d section of the 4th Article, which relates to the privileges of citizens of the several States, it would be in harmony with this view to say that such legislation must be confined to the application of the judicial power in cases arising under that clause. Can Congress undertake to pass penal statutes to protect citizens of each State in the enjoyment of the rights guaranteed by that clause? The general statement, ante, § 863, may be modified in view of this sec