selves as early as 1791, in a demand made by the Governor of Pennsylvania upon the Governor of Virginia, and both of them admitted the propriety of bringing the subject before the President, who immediately submitted the matter to the consideration of Congress. And this led to the act of 1793, of which we are now speaking. All difficulty as to the mode of authenticating the judicial proceeding was removed by the Article in the Constitution, which declares, 'that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State; and the Congress may, by general laws, prescribe the manner in which acts, records, and proceedings shall be proved, and the effect thereof." And without doubt the provision of which we are now speaking-that is, for the delivery of a fugitive, which requires official communications between States, and the authentication of official documents-was in the minds of the framers of the Constitution, and had its influence in inducing them to give this power to Congress. And acting upon this authority, and the clause of the Constitution which is the subject of the present controversy, Congress passed the act of 1793, February 12th, which, as far as relates to this subject, is in the following words:"

Here the Clfief Justice recites the first and second sections of the act,' and then proceeds:—

"It will be observed, that the judicial acts which are necessary to authorize the demand are plainly specified in the act of Congress; and the certificate of the executive authority is made conclusive as to their verity when presented to the Executive of the State where the fugitive is found. He has no right to look behind them, or to question them, or to look into the character of the crime specified in this judicial proceeding. The duty which he is to perform is, as we have already said, merely ministerial that is, to cause the party to be arrested, and delivered to the agent or authority of the State where the crime was committed. It is said in the argument, that the executive officer upon whom this demand is made must have

See post in the commencement of Ch. XXVII.

a discretionary executive power, because he must inquire and decide who is the person demanded. But this certainly is not a discretionary duty upon which he is to exercise any judg ment, but is a mere ministerial duty-that is, to do the act required to be done by him, and such as every Marshal and Sheriff must perform when process, either criminal or civil, is placed in his hands to be served on the person named in it. And it never has been supposed that this duty involved any discretionary power, or made him anything more than a mere ministerial officer; and such is the position and character of the Executive of the State under this law, when the demand is made upon him and the requisite evidence produced. The Governor has only to issue his warrant to an agent or officer to arrest the party named in the demand."

732. The portion of the opinion above cited bears more directly upon a question which will be hereinafter, in the twenty-eighth chapter, examined more particularly, viz.:— Whether the action of a Governor of a State, in making the delivery required by the law of Congress, involves the exercise of the judicial power of the United States? The portion of the opinion immediately after that above cited bears more particularly on the question of the construction of the provision. It is as follows:

"The question which remains to be examined is a grave and important one. When the demand was made, the proofs required by the act of 1793, to support it, were exhibited to the Governor of Ohio, duly certified and authenticated; and the objection made to the validity of the indictment is altogether untenable. Kentucky has an undoubted right to regulate the forms of pleading and process in her own courts, in criminal as well as civil cases, and is not bound to conform to those of any other State. And whether the charge against Lago is legally and sufficiently laid in this indictment according to the laws of Kentucky, is a judicial question to be decided by the courts of the State, and not by the executive authority of the State of Ohio.

"The demand being thus made, the act of Congress declares, that it shall be the duty of the executive authority of

the State' to cause the fugitive to be arrested and secured, and delivered to the agent of the demanding State. The words 'it shall be the duty,' in ordinary legislation, implies the assertion of the power to command, and to coerce obedience. But looking to the subject-matter of this law, and the relations which the United States and the several States bear to each other, the Court is of opinion, the words 'it shall be the duty' were not used as mandatory and compulsory, but as declaratory of the moral duty which this compact created, when Congress had provided the mode of carrying it into execution. The act does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the Executive of the State; nor is there any clause or provision in the Constitution which arms the government of the United States with this power. Indeed, such a power would place every State under the control and dominion of the general government, even in the administration of its internal concerns and reserved rights. And we think it clear, that the federal government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; for if it possessed this power, it might overload the officer with duties, which would fill up all his time, and disable him from performing his obligation to the State, and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the State.

"It is true that Congress may authorize a particular State officer to perform a particular duty; but if he declines to do so, it does not follow that he may be coerced, or punished for his refusal. And we are very far from supposing, that in using this word 'duty,' the statesmen who framed and passed the law, or the President who approved and signed it, intended to exercise a coercive power over State officers not warranted by the Constitution. But the General Government having in that law fulfilled the duty devolved upon it, by prescribing the proof and mode of authentication upon which the State authorities were bound to deliver the fugitive, the word 'duty' in the law points to the obligation on the State to carry it into execution.

"It is true, that in the early days of the Government, Congress relied with confidence upon the co-operation and support of the States, when exercising the legitimate powers of the General Government, and were accustomed to receive it upon principles of comity, and from a sense of mutual and common interest, where no such duty was imposed by the Constitution. And laws were passed authorizing State courts to entertain jurisdiction in proceedings by the United States, to recover penalties and forfeitures incurred by breaches of their revenue laws, and giving to the State courts the same authority with the District Court of the United States to enforce such penalties and forfeitures, and also the power to hear the allegations of parties, and to take proofs, if an application for a remission of the penalty or forfeiture should be made, according to the provisions of the acts of Congress. And these powers were for some years exercised by State tribunals, readily, and without objection, until in some of the States it was declined because it interfered with and retarded the performance of duties which properly belonged to them, as State courts; and in other States, doubts appear to have arisen as to the power of the courts, acting under the authority of the State, to inflict these penalties and forfeitures for offences against the General Government, unless especially authorized to do so by the State.

"And in these cases the co-operation of the States was a matter of comity which the several sovereignties extended to one another for their mutual benefit. It was not regarded by either party as an obligation imposed by the Constitution. And the acts of Congress conferring the jurisdiction, merely give the power to the State tribunals, but do not purport to regard it as a duty, and they leave it to the States to exercise it or not, as might best comport with their own sense of justice, and their own interest and convenience.

"But the language of the Act of 1793 is very different. It does not purport to give authority to the State executive to arrest and deliver the fugitive, but requires it to be done, and the language of the law implies an absolute obligation which the State authority is bound to perform. And when it speaks

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of the duty of the Governor, it evidently points to the duty imposed by the Constitution in the clause we are now consider ing. The performance of this duty, however, is left to depend on the fidelity of the State executive to the compact entered into with the other States when it adopted the Constitution of the United States, and became a member of the Union. It was so left by the Constitution, and necessarily so left by the Act of 1793.

"And it would seem that when the Constitution was framed, and when this law was passed, it was confidently be lieved that a sense of justice and of mutual interest would insure a faithful execution of this constitutional provision by the executive of every State; for every State had an equal interest in the execution of a compact absolutely essential to their peace and well-being in their internal concerns, as well as members of the Union. Hence the use of the words ordinarily employed when an undoubted obligation is required to be performed, 'It shall be his duty.'

"But if the Governor of Ohio refuses to discharge this duty, there is no power delegated to the General Government, either through the judicial department or any other department, to use any coercive means to compel him.

"And upon this ground, the motion for the mandamus must be overruled."

1

§733. Chancellor Kent is probably the only author who views the provision for the delivery of fugitives from justice

In view of this opinion, it seems necessary to distinguish, besides the four already mentioned, another possible construction of this provision, according to which, the persons holding the executive authority of the State in which the crime was committed, and of that into which the criminal may have fled, are the subjects of the rule contained in the provision; the duty thereby created being a duty of the Governor of the State into which the fugitive from justice escaped, correlative to the right of the Governor of the State from which he fled, who makes the demand. The opinion carefully excludes the idea that an exercise of the judicial function is involved in the action of the Governor upon whom the demand is made. Hence, it must be inferred that the court would not base the power of Congress to legislate on the idea of carrying into execution a power vested in the judicial department of the Government, as under the third or the fourth construction before stated. If the court had held itself authorized to issue the mandamus prayed for, it might have been inferred that it would base the power of Congress to legislate upon the theory incidental to the second constructionthat the rule contained is law in the strict sense, which must be enforced by some superior. But in view of this decision, it is difficult to see wherein the Act of Congress has produced any effect beyond that caused by the provision itself.