The Acts of Congress follow the provisions on which they are founded. The rendition of the fugitive from justice to the State where he is to be tried, is spoken of in the Act of 1793. But neither in that Act nor in that of 1850 is the master required to carry back the person he may hold as his escaped. bondman. It may be supposed that the power to detain the latter will continue for such time as may suffice for convenient removal. But, if the master remains voluntarily with his recaptured slave beyond that time, the constitutional guarantee must cease to operate, and the slave may become free by the law of the forum. The claim might be made and the delivery effected, under this provision, when the fugitive had been found in a State permitting slavery; and then the possession of the master would continue, by the local law of that State, so long as he should choose to remain in it. Or, whatever might be the local law of the State in which the delivery takes place, the master could remove the supposed fugitive to any other State, or any other country, and retain him in slavery therein, if the local law should permit it. The delivery to the claimant, under the provision and Acts of Congress, is in all respects like a delivery upon claim made under the local law of a jurisdiction wherein slavery is lawful, in a case in which the master's right is denied by some third party, or in one in which the supposed slave should himself deny the right. While the claimant is in itinere with the supposed slave to the State from which he came, his custody continues under the Constitution and is protected by the statute. But he is not bound to proceed thither, and this protection may not be sufficient to induce him to do so. If the fugitive is carried to some slaveholding jurisdiction, his status will be determined by the local law thereof; this provision of the Constitution will have no effect upon it.

§ 913. It is certain that if any State magistrate, under the law of 1793, acted in virtue of the judicial power of his own State, a certificate given by him had no power beyond the limits of that State, and could not compel the claimant to return the slave to the State from which he was supposed to have escaped; his act of judgment operated in and for the

State alone, and it has always been held that the act of a judge or commissioner under the law of 1850 is not distinguishable in its operation from the act of a judge or State magistrate under the former Act.'

There are no means provided for securing this actual rendition from jurisdiction to jurisdiction independently of the will of the claimant; there is no penalty for the party holding the certificate for failing to carry it out-no officer appointed to ascertain whether it has or has not been carried out. The party holding the certificate being a private individual, there is no such presumption of public law (comity, as it may be called), which may authorize the legal presumption that the fugitive slave, like the fugitive from justice, will be transferred to the State by whose laws he is supposed to have been held to service."

There is no case in which a certificate has been granted in which it is now possible to show, by public record, that the fugitive was actually taken back to his supposed domicil; and the effect of such a certificate as a limitation of the master's right over the person and services of the slave, while in transitu, has never been made a subject of judicial inquiry in States through which he has been carried after the certificate has been given. It would appear that the master's right under the Constitution, after the claim has been established, is to sell and dispose of the slave and of his services, and to transfer him to any jurisdiction where slavery is allowed, and that no lim

1 See in connection with this the argument in § 883. If the commissioners' certificate requires the rendition of the supposed slave to the State from which he is said to have escaped, he must be under the control of national public authority until he is so carried back. But then the same must have been the case under a State magistrate's or a judge's certificate under the law of 1793, and yet in Worthington v. Preston, 4 Wash. C. C. 461, where the keeper of the prison held the slave in custody after he had been delivered to the claimant with a certificate, it was held that the keeper was merely acting as the private agent of the master, not as the instrument of public authority.

It is only when the party claimant makes affidavit that he apprehends a rescue, that, by the 9th section of the Act, the officer of the United States who has the fugitive in his charge is bound "to remove him to the State from whence he fled, and there to deliver him to said claimant, his agent or attorney."

Here appears the utter fallacy of the assertion, which has sometimes been made, that the provision and legislation of Congress is based upon securing to the slaveholding States, as States, a property, or what Judge Baldwin called "political property." See ante, p. 445, note.

Ante, § 859.

itation of this right has been attempted in the legislation of Congress.'

§ 914. But even if there were any force in the certificate given by the commissioner to oblige the rendition of the supposed fugitive to the State from which he was said to have escaped, or if the legal force of the certificate was correctly described by Judge Sprague,-"It is merely an authority to carry the person named from one State to another-that is its whole legal effect,”—it is nevertheless evident that the commissioner's act of judgment is a finality as regards the forum in which it is pronounced. Whatever may afterwards be judicially done, as between the claimant and the supposed fugitive in the forum to which the latter is taken will be an independent and original proceeding, having no connection, as an act of remedial jurisprudence, with the commissioner's act of judgment. As Judge Sprague says, very simply, "What may be legally done with that person in the State to which he is carried, depends on the laws of that State." It is precisely this final transfer of the person, from one jurisdiction which determined his individual rights in one way, to another which may determine them in the same or in some other way, which makes the proceeding a judicial one according to Judge Sprague's definition of a proceeding which is a judicial one "under our jurisprudence." There is no connection established in these instances between the action of the commissioner in the State from which the fugitive is removed and the administration of justice in that to which he is taken. The fact that the removal takes place

act.

1In Sims' case, Mr. Commissioner Curtis seems to have admitted that under the provision of the Constitution a case arises within the judicial power. Mr. Rantoul, counsel for Sims, argued that the commissioner is by the statute required to carry into effect the whole purpose of the provision as the rule determining the right of the master and the correlative obligations of the slave and of third par ties; and that therefore the "case" would be determined by the commissioner's Mr. Rantoul took that view of the effect of the statute which is here given in the text, maintaining that the master's right or power became absolute on getting the certificate; that he might carry the supposed fugitive to any other State, or to any foreign jurisdiction; that the commissioner's decision was equivalent to that of a judge deciding, in and for a State, the issue of liber or non liber under the local law. (See Mr. Rantoul's 7th point, IV. Mon. L. R. 5, and the claimant's 3d point, ib. 6.) Mr. Curtis held his action to be preliminary merely (see the Opinion, ante, p. 676, note.)

See also post, § 923, Thompson, J., in Martin's case, § 926, McLean, J., in McQuerry's case, and § 933, the Opinion of B. R. Curtis, Esq.

under a rule which rests on the national authority may induce the idea that a law has been carried into effect which operates in the United States as one jurisdiction, in view of which the States are like counties or local districts under one municipal (internal) law. In the case of fugitives from justice this may be the case, under the language of the provision and public comity, even if no parallel can be found in the extradition of foreign criminals. But in the case of persons claimed as owing service or labor, there is no such amalgamation of the two States. There was in the jurisprudence of England a judgment of outlawry. In the instances here contemplated, the person carried away under a certificate is outlawed in respect to the State in which he is found; he is as conclusively removed from the judicial power and protection of that State as though he had been annihilated. To say that, in another State to which he may be and probably will be taken, ulterior acts of judgment may take place which will be judicially performed, is nothing to the purpose in the argument.

915. It is sometimes said that the action of the commissioner is not judicial, because the certificate could not be set up in support of a plea of res judicata in a suit for freedom brought in the State to which the person removed as a fugitive from labor may be taken. But, in point of fact, it is so pleaded in the forum in and for which it is rendered, that is, the State in which the fugitive is claimed. In that forum it is made conclusive against every other manifestation of judicial power, State or national.'

§ 916. If Congress had provided a proceeding under which the slave would continue in the custody of the national public authority in transitu, before the claim should be finally determined under that authority, the action of a commissioner who should grant a warrant or a certificate for removal in view of a hearing of the claim before a tribunal acting under that authority in the State from which the person claimed is alleged to have escaped, and by whose laws he is supposed to be held to service, would have an entirely different character. The commissioner's action would then be that which, in opinions

1 Compare Judge Conckling's assertion that it is like a judgment. Ante, p. 665.

already cited, it has been affirmed to be under the Act of 1850. Or even if it were provided that the master's custody should not be complete until, in the State from which the alleged slave is supposed to have escaped, some judgment had been passed by the local authorities, it might, by some stretch of the vaguest doctrine of comity between the States, or comity between the State Government and the national Government, be pretended that the act of transfer from jurisdiction to jurisdiction is ministerial only. There would then be a real parallelism between the removal under the commissioners' action and an extradition in the case of a fugitive from justice.

§ 917. The conclusion resulting from the foregoing considerations is, that the action of the commissioners in granting a certificate, as contemplated by the Act of 1850, does involve an exercise of the judicial power of the United States. This conclusion is entirely distinct from any answer to the question, whether the guarantee of jury-trial is violated by the proceedings under these Acts of Congress. But the arguments to be considered in the determination of that question may have a bearing more or less confirmatory of this conclusion. That question is to be considered in the following chapter.