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1793, conferring ministerial powers upon the State magistrates, and regulating the exercise of the powers of the State executive, is certainly not a law to carry into effect the judicial power of the United States, which power cannot be vested in State officers.'

The Court for the Correction of Errors decided the case in favor of the claimant without reference to the constitutionality of the law of Congress, and, it would seem, without reference to the validity of the State law, and simply on the ground that by the pleadings the plaintiff had admitted that he was the slave of the defendant. 14 Wend. 507.

If, then, under the decision of the Supreme Court, or of the Court for the Correction of Errors, the plaintiff was regarded as in custody under the action of any public authority whatever, it must have been held that he was in custody under the certificate given by the Recorder as one of the State magistrates mentioned in the Act of Congress of 1793, and in conformity to the provisions of that statute.'

But, assuming this to have been held, the source of the power exercised by the Recorder in such case does not appear to have been here inquired into any more than in the case of Wright v. Deacon. And it will be noticed that these two

1 Here the Chancellor appears to determine the quality of the power by the official capacity or incapacity of the person who is to use it. The Judiciary Committee of Mass. Ho. of Rep. (ante, p. 453, n.), 17 Am. Jurist, 97, say,-"The Committee after a full investigation of the question believe that this part of the law is unauthorized and void. It is a well settled principle that Congress cannot confer any part of the judicial power of the United States on State magistrates or officers." The Committee was more logical than the Chancellor in the dictum, above quoted, which seems to be the germinal authority that the delivering up a fugitive from labor, on claim, as provided by the two Acts of Congress, is a ministerial act.

2 As the case stood under the State law, the only question before the court was that raised by the demurrer-whether the claimant, being a resident of the State of New York at the time, could, under the provision, claim the negro as owing service and labor in Louisiana. Judgment being given on this demurrer, the issues of fact in the Superior Court were to be decided by a jury. (14 Wend. 513.) There was nothing in the proceedings which could establish any connection between the custody in which the negro was held and the Act of Congress. Under Judge Nelson's decision disallowing the operation of the State law, that custody had no support either from the law of the State or the Act of Congress, and could, in fact, be justified only on the doctrine (afterwards proclaimed in Prigg's case, where its origin was ascribed to this Opinion of Judge Nelson, ante, p. 554, n. 1) of seizure and removal without reference to any public inquiry. Much in the Opinion which at first seems to justify that doctrine (12 Wend. 316, 325, 826) may have been intended only to affirm a right to seize the fugitive for the purpose of making the claim under the Act of Congress.

cases are the only ones in the series in which the custody of a fugitive slave, under a certificate granted by a State officer, has actually been sustained by a judicial decision.'

§ 868. In Prigg's case (1842), 16 Peters, 539, the negro claimed had been arrested on a warrant issued by "a justice of the peace in and for the county of York," who, however, when such negro had been brought before him by the plaintiff for the purpose of procuring the certificate provided for by the Act of Congress, refused to take any farther action in the matter. The plaintiff had thereupon forcibly removed the negro from the limits of the State.

The decision of the Supreme Court of the United States, therefore, could not have confirmed any actual proceeding of any person claiming official authority to carry out the provisions of the statute. But Judge Story, delivering the Opinion of the court, thought proper to examine the constitutionality of the law of Congress "in all its leading provisions," although beyond all controversy, such an inquiry was not essential to the decision of the case.

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But on the particular question, whether certain persons who, in the Opinion, are called State magistrates, may act as provided in the statute, Judge Story expressly said that it was "not free from reasonable doubt and difficulty." The brief portion of the Opinion which relates to this point is on 16 Peters, 622; see ante, p. 474.

§ 869. Judge Wayne began by saying, 16 Peters, 636:"I concur altogether in the Opinion of the court as it has been given by my brother Story. In that Opinion it is decided," &c., and then states seven points as decided, in none of which is the question of the power of these State magistrates touched upon. The residue of Judge Wayne's Opinion is exclusively directed to the point, that the power of Congress to legislate is exclusive of all legislative action on the part of the States.*

In Helmsley's case (1836), ante, pp. 64, 453, the prisoner had been arrested on a warrant issued by Judge Haywood, of the county of Burlington, but in the case he is supposed to have acted under the law of the State of New Jersey.

He had made the writ returnable before himself; 16 Peters, 556. The Act of Congress had not provided for any such writ. By sec. 3 of the State law of 1825-6, justices of the peace might issue a warrant in these cases, returnable before a judge of a court therein designated; but, by sec. 9, they were forbidden to take jurisdiction under the law of Congress. See ante, p. 71.

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Ante, pp. 456, 491.

See the citation, ante, p. 481.

Judge Daniel considered the discussion of the constitutionality of the Act of Congress improper in this case, and declined giving an opinion on the point. 16 Peters, 650, and ante, p. 488.

Judge Baldwin agreed with the court in the only question properly before it: that is, whether the judgment of the court of Pennsylvania against Prigg should be annulled. "But he dissented from the principles laid down by the court as the ground of their opinion." No written Opinion was delivered by him. See ante, p. 491.

Judge Thompson did not refer to this question. In the beginning of his Opinion he said that he had not been able to yield assent to all the doctrines embraced in the Opinion delivered by Judge Story. 16 Peters, 633; ante, p. 484.

$870. Of the other members of the court, only Judges Taney and McLean referred to the action of the State magistrates. Chief Justice Taney appears to have held, in the language of Story, above cited, that State magistrates "may, if they choose," act under the statute, or exercise authority in the manner therein provided; but said (16 Peters, 630) that "the State officers mentioned in the law are not bound to execute the duties imposed upon them by Congress, unless they choose to do so, or are required to do so by a law of the State; and the State Legislature has the power, if it thinks proper, to prohibit them."

Mr. Justice McLean considered this question of the duty of these State magistrates more fully than had either Judge Story or Judge Taney. On page 664 he says:-"It seems to be taken as a conceded point in the argument, that Congress had no power to impose duties on State officers, as provided in the above Act. As a general principle, this is true; but does not the case under consideration form an exception? Congress can no more regulate the jurisdiction of the State tribunals than a State can define the judicial power of the Union. The officers of each Government are responsible only to the respective authorities under which they are commissioned. But do not the clauses in the Constitution in regard to fugitives from labor and from justice give Congress a power over State offi

cers on these subjects? The power in both the cases is admitted or proved to be exclusively in the federal Government.

"The clause in the Constitution preceding the one in relation to fugitives from labor declares," &c. (quoting the clause):

"In the first section of the Act of 1793, Congress have provided that, on demand being made as above, it shall be the duty of the executive authority to cause the person demanded to be arrested,' &c. The constitutionality of this law, it is believed, has never been questioned. It has been obeyed by the Governors of States, who have uniformly acknowledged its obligations. To some demands surrenders have not been made; but the refusals have in no instance been on the ground that the Constitution and Act of Congress were of no binding force. Other reasons have been assigned. Now if Congress may, by legislation, require this duty to be performed by the highest State officers, may they not, on the same principle, require appropriate duties in regard to the surrender of fugitives from labor by other State officers? Over these subjects the constitutional power is the same. In both cases the Act of 1793 defines on what evidence the delivery shall be made. This was necessary, as the Constitution is silent on the subject. The Act provides that, on claim being made of a fugitive from labor, it shall be the duty of such judge or magistrate to give a certificate that the person claimed owes service to the claimant.' The Constitution requires," &c. The remainder of the portion of Judge McLean's argument on this point, from pp. 665, 666, has already been cited, ante, pp. 487, 488.

§ 871. The constitutionality of the law of 1793 in respect to the question under consideration has not been discussed, and appears not to have been involved in any of the cases which have arisen under that statute since the date of Prigg's case.1

1 In Jones v. Van Zandt (1842–3), 2 McLean, 597, ante, p. 492, Driskill v. Parrish (1847), 3 McLean, 631, ante, p. 497, and Kauffman v. Oliver (1849), 10 Barr. 516, ante, p. 494, the action was for harboring, and concealing, and there could have been no question of the validity of a certificate. Though in Driskill v. Parrish there had been a seizure by the claimant, with intention, as was declared, of taking the fugitives before "a judicial officer." Ante, 497, n. 2. So in State v. Hoppess (1845), 2 West, L. J. 289, ante, p. 496, the claimant had brought his sup posed slave before a justice, when the habeas corpus interrupted the proceedings.

But it is here proper to notice the quasi authorities on this point which have been elicited in the examination of the similar question in cases under the Act of 1850. In some of these cases it has been either implied or positively asserted that the magistrates of counties, cities, and towns corporate spoken of in the Act of 1793, or the State magistrates mentioned in the cases, exercise power which is derived from the United States but which is not part of the judicial power of the United States.

Among these authorities, which will hereinafter be fully cited, is the decision in Sims' case. The language of Chief Justice Shaw referring to the force of the objection taken to the action of State magistrates, is to be particularly noticed. It had been objected that the law of 1850 vested in the U. S. commissioners the judicial power of the United States, and it seems to have been assumed on all hands in that case that the action of the State magistrates under the law of 1793, which had been judicially sanctioned in earlier cases, involved the exercise of power of the same quality, derived from the same source. Judge Shaw, 7 Cushing, 303, said :-"If this argument, drawn from the Constitution of the United States, were now first applied to the law of 1793, deriving no sanction from contemporaneous construction, judicial precedent, and the acquiescence of the General and State Governments, the argument from the limitation of judicial power would be entitled to very grave consideration."

But in a passage which has been cited (ante, p. 60, note) from Judge Marvin's charge on the trial of Allen, the judge describes the power which State magistrates exercised, in proceeding according to the Act of 1793, as "State judicial power."

§ 872. In Wright v. Deacon, the Supreme Court of Pennsylvania sustained a custody under a certificate granted according to the Act of Congress by a judge of the Common Pleas Court of Philadelphia. In Jack v. Martin, the Supreme

'The positive assertion, that the power of the State magistrates who could have acted under the law of 1793 was power not derived from the States but from the United States, appears never to have been made in any instance until declared by Mr. Comm. Loring in Burns' case; see post.

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