Court, and the Court for the Correction of Errors, of New York, sustained the custody when the certificate had been granted by the Recorder of the city of New York. These cases are direct authority that persons holding these offices may perform that action which "magistrates of counties, cities, and towns corporate," are, by the law of 1793, empowered or permitted to perform.

In Prigg's case there was no actual custody under a certificate. If an opinion as to the constitutionality of the Act in this respect was not extra-judicial, it must be held that, in order to judge whether the Act of Pennsylvania was valid or not, it was necessary to prove not only that Congress had legislated on the same subject, but that their actual legislation was in all points constitutional.'

But, passing over this objection, it appears that although the court, speaking by Judge Story, admitted that in "that part which confers an authority upon State magistrates" the Act is not "free from reasonable doubt and difficulty," and only the Chief Justice, with Justices Story and McLean, appear to have given it any attention, Judge Story spoke of "this court" as entertaining no doubt "that State magistrates may, if they choose, exercise the authority" granted or permitted by the law, or, as he otherwise expresses it, "act under" the law; and Judge McLean and the Chief Justice differed only on the point whether the State magistrates were bound to act, or only might act if they should think fit.

From these dicta it has been supposed, in Sims' case and in all other cases under the law of 1850, that the Supreme Court must be taken to have held, in this case, that any magistrate of a

'See ante, p. 491, note 3. It seems very questionable whether the court can decide on the constitutionality of provisions in a statute which do not affect the parties in the case before them; even when other provisions of the same statute do affect those parties. It was not pretended in this case that the statute of Pennsylvania would have interfered with the action of the claimant if he had proceeded according to the Act of Congress. If the State law was invalid only because in conflict with the law of Congress, it would have been necessary to prove that the latter was constitutional in that particular in which it was antagonistic to the State law. The decision in this case was not merely that a State statute in conflict with a valid Act of Congress is void; it was, that the legislation of Congress annuls all State legislation on the same subject-matter, though such legislation may not be void as in conflict with the Constitution.

county, city, or town corporate, may grant a certificate as provided by the Act of Congress, and that the custody of the claimant under such certificate will be valid. And, as regards our present inquiry, the Opinion of the court has been taken as authority that the power exercised by such "magistrates of counties, cities, and towns corporate," is not the judicial power of the United States.

But the conclusion is the same, whatever may be the nature of the power, if that power is not derived from the United

States. From the use made of this decision in cases under the law of 1850, when the question was of the quality of the power exercised by the commissioners of the United States courts, it will be seen that the important inquiry here is, whether, in denying that the power exercised by the "magistrates of counties, cities, and towns corporate" is the judicial power of the United States, it is the quality of the power or the source of the power which is referred to.'

§ 873. In the passage in the Opinion of the court above. cited, Judge Story speaks of part of the Act as that "which confers an authority upon State magistrates," and of "the authority conferred upon State magistrates." From this use of the word confer it may be argued that, in his view, the power exerted by these State magistrates would be power politically derived from the United States.

But Judge Story, in the same passage, intimated that by State legislation these magistrates might be prohibited from exercising the authority thus "conferred." Now, whenever a citizen of one of the States may, consistently with the public law of the United States, exercise authority politically proceeding from the sovereign powers held by the national Government, there certainly can be no power in State legislation. to prohibit his exercise of that power. It is his right to accept the office, and the State cannot interfere with the performance of the duty he will then owe the national Government. His civil and political rights arising out of his allegiance and citizenship in respect to the powers held by the

1 See ante, p. 611, a similar inquiry stated as to the power exercised by the Governors of the States in delivering fugitives from justice.

national Government are co-existent and in perfect harmony with the rights and duties which arise from his allegiance and citizenship in respect to the sovereign powers held by the State of which he is an inhabitant. If the law of Congress is constitutional in respect to the public law of the United States, his power to act or not to act in the manner prescribed by Congress is a matter with which the State, in the fullest exercise of its "reserved" powers, has nothing to do.' If, then, Judge Story held that the power to be exercised by these State magistrates would be held by them personally, or as private individuals merely, designated or described as being citizens holding the office of State magistrate, and that it would not be a power incident to their functions in the office conferred by the State, there was no propriety in referring to the State Legislatures as having power to forbid their acting in the mode prescribed by Congress.

874. In the passage cited from his Opinion, Chief Justice Taney likewise says that "the State Legislature has the power, if it thinks proper, to prevent" these State magistrates from acting. From his saying that they were under no more obligation to accept a power or office under the Act than are other persons, it would seem to have been his opinion that if they should "choose" to act they would exercise power politically derived from the United States. But from other passages in his Opinion, when arguing in favor of concurrent State legislation, it seems that Judge Taney considered the State as the source of the authority exercised in these cases by the State magistrate. On p. 630 of the report his language is:

"Indeed, if the State authorities are absolved from all obligation to protect this right, and may stand by and see it violated without an effort to defend it, the act of Congress of 1793 scarcely deserves the name of a remedy. The State officers mentioned in the law are not bound to execute the duties imposed upon them by Congress, unless they choose to

It is not disputed that a State may deprive those who will act under the law of Congress of the office of State magistrate, and thus, virtually, may prohibit the magistrate from acting as prescribed by the national law. See the law of Massachusetts of 1858, ante, p. 33.

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. The act of 1795, therefore, must depend altogether for its execution upon the officers of the United States named in it. And the master must take the fugitive, after he has seized him, before a judge of the District or Circuit Court, residing in the State, and exhibit his proofs, and procure from the judge his certificate of ownership, in order to obtain the protection in removing his property which this act of Congress professes to give.

"Now, in many of the States there is but one district judge, and [631] there are only nine States which have judges of the Supreme Court residing within them. The fugitive will frequently be found by his owner in a place very distant from the residence of either of these judges, and would certainly be removed beyond his reach, before a warrant could be procured from the judge to arrest him, even if the act of Congress authorized such a warrant. But it does not authorize the judge to issue a warrant to arrest the fugitive; but evidently relied on the State authorities to protect the owner in making the seizure. And it is only when the fugitive is arrested and brought before the judge that he is directed to take the proof and give the certificate of ownership. It is only necessary to state the provisions of this law in order to show how ineffectual and delusive is the remedy provided by Congress, if State authority is forbidden to come to its aid.

"But it is manifest from the face of the law, that an effectual remedy was intended to be given by the act of 1793. It never designed to compel the master to encounter the hazard and expense of taking the fugitive, in all cases, to the distant residence of one of the judges of the courts of the United States; for it authorized him, also, to go before any magistrate of the county, city, or town corporate wherein the seizure should be made. And Congress evidently supposed that it had provided a tribunal at the place of the arrest, capable of furnishing the master with the evidence of ownership to protect him more effectually from unlawful interruption. So far from regarding the State authorities as prohibited from in

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terfering in cases of this description, the Congress of that day must have counted upon their cordial co-operation. They legislated with express reference to State support. And it will be remembered that, when this law was passed, the government of the United States was administered by the men who had but recently taken a leading part in the formation of the Constitution. And the reliance obviously placed upon State authority for the purpose of executing this law, proves that the construction now given to the Constitution by the Court had not entered into their minds."

It seems to have been the Chief Justice's opinion that the State magistrates of whom he spoke would have no power to act as therein provided, unless thereto authorized by State legislation. It is even doubtful whether he interpreted the Act of Congress as empowering them to hear the proof of claim and give the certificate, or only as authorizing them to make the commitment preparatory to a hearing before a judge of some one of the national courts.'

§ 875. As regards Judge McLean's argument from the supposed constitutionality of the action of Governors of States in delivering up fugitives from justice, its whole force turns on the questions-whether it is or is not an exercise of power derived from the United States, and-whether it is not, by custom of nations, appropriated to a different function of the Government. These have already been considered.' Judge McLean says that "the power in both cases is admitted or proved to be in the federal Government," from which the inference would seem to follow that the action of the State magistrates could be an exercise of federal or national power only. But then he also argues that Congress may require this action from State magistrates, because it is a fulfillment of the duty of the State. His views, on the whole, appear to be that, though the permission to act is ultimately dependent on the will of Congress, yet the power which would be exercised

If he contemplated the State magistrate as only empowered to arrest the fugitive for the purpose of having him brought before a United States judge who should take proof and grant the certificate, the authority of the Chief Justice is directly for the reverse of that for which this case has been taken in the question of the power exercised by the commissioners under the law of 1850.

Ante, pp. 611-613.