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power to enforce the rule against the State of which he is the Executive. He can hardly be supposed to represent the State at the same time in a position essentially antagonistic to that which he holds under the act of Congress.

If Congress had assumed to legislate on the idea (comprehended under the third construction) that, by the demand of a fugitive from justice, a case arises under the Constitution, in which the demandant State, or executive officer, is one party, and the national Government the other, or a controversy to which the United States is a party, it would seem that provision would have been made for the appearance, in such case or controversy, of the national Government. Since it contains no such provision, the act of 1793 is an authority against this adaptation of the third construction.

If, by its actual legislation, Congress has directed that the delivery of a fugitive from justice may be carried out by persons who cannot, under the Constitution, hold the judicial power of the United States, it must be supposed that such legislation was not based on the idea that in such delivery the judicial power of the United States will be applied in a case arising under this provision, operating as law in the strict sense, according to the third or the fourth construction.'

730. The question, whether the Governors of the States, when acting in conformity with the law of Congress, have exercised power politically derived from the United States, will be hereinafter considered, when the constitutionality of that law, in its details, is examined. But if, in any cases, such action of a State Governor has been judicially held to have

The House of Representatives, March 1, 1861, by a vote of 47 to 126, rejected a bill entitled An Act for the amendment of the Act for the rendition of fugitives from justice, which provided "that every person charged by indictment or other satisfactory evidence, in any State, with treason, felony, or other crime, committed within the jurisdiction of such State, who shall flee or shall have fled from justice, and be found in another State, shall, on the demand of the executive authority of the State from which he fled upon the judge of the United States of the District in which he may be found, be arrested and brought before such judge, who, on being satisfied that he is the person charged, and that he was within the jurisdiction of such State at the time such crime was committed, of which such charge shall be prima facie evidence, shall deliver him up to be removed to the State having jurisdiction of the crime; and if any question of law shall arise during such examination, it may be taken, on exception, by writ of error, to the Circuit Court." I am not informed as to the action of the Senate on this bill.

carried out the delivery required by the provision, and has also been justified as power derived from the United States, such cases must be taken as an authority against the fourth construction, and against that adaptation of the third which supposes the extension of the judicial power over a case in which the national Government is a party. They are a judicial repudiation of the idea that the Act of Congress is constitutional by its carrying into effect power belonging to the judiciary department of the United States.

There are many cases wherein a custody under the warrant of the State Executive has been justified under this provision and the Act of Congress. But the political source of the authority therein exercised by such Executive has not been particularly discriminated in the judicial opinions, and no attempt has been made to show the basis of the power attributed to Congress. In most of these opinions, there is an intimation that the State Executive would have no authority in the absence of the act of Congress,' and the language favors the doctrine of an implied power in the national Government to secure the right guaranteed to the State demandant, as correlative to a duty on the part of the State in which the fugitive is found; according to the second construction above stated.

It will be seen hereinafter that, in some opinions, wherein either the second or the third construction of the provision concerning fugitives from labor is made the basis of the legis lation of Congress in respect to such persons, the power to legislate in respect to fugitives from justice is said to rest on the same foundation. On a full examination of Judge Story's opinion in Prigg's case, it may appear that he regarded this provision as creating cases, within the judicial power, in which the demandant State or Executive is one party, and the national Government the other party; thus supporting the third construction. Yet in the same case, 16 Peters, 620, Story

1 See particularly U. S. Dist. Judge Pope's opinion in 3 McLean C. C. R. 129, 131. Judge McLean, in Prigg's case, 16 Peters, 664, would seem to derive the Governor's power from the State. See these opinions stated and compared, post, in Ch. XXVIII.

Mr. George T. Curtis, U. S. Commissioner, held, in Sims' case (Monthly Law Reporter, Vol. IV., N. S., p. 6), that the claim of a master for a fugitive slave was, under the constitutional provision, a case within the judicial power of the United

held that the right and duty created by this provision are not capable of enforcement without legislation. He said: "Yet the right and duty are dependent as to their mode of execution solely on the act of Congress, and but for that they would remain a nominal right and a passive duty, the execution of which, being entrusted to no one in particular, all persons might be at liberty to disregard." According to this view, this provision does not act on any persons as law, until Congress shall have prescribed the means by which it should be carried into effect; and there is, under the provision alone, no such right and obligation as would call for the action of the judicial power according to the fourth, and one adaptation of the third, construction.'

731. The opinion delivered by Chief Justice Taney in pronouncing the judgment of the Supreme Court of the United States, in the recent case of Kentucky v. Dennison, seems to be the only judicial authority on the question of the construction of this provision. The facts of the case have already been described. After the portion of the opinion which has been cited on pages 381-385, the Chief Justice proceeds to say :

"The clause in question, like the clause in the confederation, authorizes the demand to be made by the executive authority of the State where the crime was committed, but does not in so many words specify the officer of the State upon whom the demand is to be made, and whose duty it is to have the fugitive delivered, and removed to the State having jurisdiction of the crime. But under the confederation, it is plain that the demand was to be made on the Governor or executive

States, and considered this as the basis of the legislation of Congress in respect to that provision. On page 7 of the report he observes:-"The rendition of fugitives from service, under the Constitution, is an act analagous to the rendition of fugitives from justice, and the two cases, so far as the powers and duties of the general Government are concerned, are of the same general nature, and may appropriately be provided for by the same general means." See post, where the case is in this chapter given. It may hereinafter appear that Mr. Curtis in this case has followed very closely Judge Story's opinion in Prigg's case.

In many cases it is held that the courts have power to issue process to arrest a person as fugitive from justice, even when no demand has been made on the Governor, according to the act of Congress. See Fetter's case, 3 Zabr. 311. This seems to support the view that the Constitution operates independently of the statute. But it is questionable whether the arrest in such cases has not been justified on common law principles.

authority of the State, and could be made on no other department or officer; for the confederation was only a league of separate sovereignties, in which each State, within its own limits, held and exercised all the powers of sovereignty; and the confederation had no officer, either executive, judicial, or ministerial, through whom it could exercise an authority within the limits of a State. In the present Constitution, however, these powers, to a limited extent, have been conferred on the General Government within the Territories of the several States. But the part of the clause in relation to the mode of demanding and surrendering the fugitive is (with the excep tion of an unimportant word or two) a literal copy of the Article of the Confederation, and it is plain that the mode of the demand and the official authority by and to whom it was addressed, under the confederation, must have been in the minds of the members of the convention when this Article was introduced; and that in adopting the same words they manifestly intended to sanction the mode of proceeding practiced under the confederation; that is, of demanding the fugitive from the executive authority, and making it his duty to cause him to be delivered up.

"Looking, therefore, to the words of the Constitution-to the obvious policy and necessity of this provision to preserve harmony between States, and order and law within their respective borders, and to its early adoption by the colonies and then by the confederated States, whose mutual interest it was to give each other aid and support whenever it was needed— the conclusion is irresistible, that this compact, engrafted in the Constitution, included, and was intended to include, every offence made punishable by the law of the State in which it was committed, and that it gives the right to the executive authority of the State to demand the fugitive from the executive authority of the State in which he is found; that the right given to "demand" implies that it is an absolute right, and it follows that there must be a correlative obligation to deliver, without any reference to the character of the crime charged, or to the policy or laws of the State to which the fugitive has fled.

"This is evidently the construction put upon this Article, in the act of Congress of 1793, under which the proceedings now before us are instituted. It is, therefore, the construction put upon it almost cotemporaneously with the commencement of the government itself, and when Washington was still at its head, and many of those who had assisted in framing it were members of the Congress which enacted the law.

"The Constitution having established the right on one part and the obligation on the other, it became necessary to provide by law the mode of carrying it into execution. The Governor of the State could not, upon a charge made before him, demand the fugitive; for, according to the principles upon which all of our institutions are founded, the executive department can act only in subordination to the judicial department, where rights of person or property are concerned, and its duty in those cases consists only in aiding to support the judicial process and enforcing its authority, when its interposition for that purpose becomes necessary, and is called for by the judicial department. The executive authority of the State, therefore, was not authorized by this Article to make the demand unless the party was charged in the regular course of judicial proceedings. And it was equally necessary that the executive authority of the State upon which the demand was made, when called on to render his aid, should be satisfied by competent proof that the party was so charged.

"This proceeding, when duly authenticated, is his authority for arresting the offender.

"This duty of providing by law the regulations necessary to carry this compact into execution, from the nature of the duty and the object in view, was manifestly devolved upon Congress; for if it was left to the States, each State might require different proof to authenticate the judicial proceeding upon which the demand was founded; and as the duty of the Governor of the State where the fugitive was found is in such cases merely ministerial, without the right to exercise either executive or judicial discretion, he could not lawfully issue a warrant to arrest an individual without a law of the State or of Congress to authorize it. These difficulties presented them

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