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in that light which would base the legislative power of Congress, in this instance, upon the theory of carrying into execution the power already belonging to the judicial power of the United States. In Kent's Comm. Vol. II., p. 32, note, it is said:"I am not aware that there has been any judicial opinion on this provision; and as it stands, I should apprehend that on the demand being made, and the documents exhibited, no discretion remained with the Executive of the State to which the fugitive had fled, and that it was his duty to cause the fugitive to be arrested and surrendered (as has been done in one or more instances). I do not know of any power under the authority of the United States by which he could be coerced to perform the duty. Perhaps the Act of Congress may be considered as prescribing a duty, the performance of which cannot be enforced. The provision in the Constitution of the United States is not, however, to be regarded as a null and void provision, or resting on the mere will and pleasure of the State authorities. It is a substantive and essential grant of power by the people of the United States to the Government of the United States, and it partakes of a judicial character, and is fitly and constitutionally of judicial cognizance. The judicial power of the United States extends to all cases in law and equity arising under the Constitution, and the courts and judges of the United States within the State to which the fugitive has fled are the fittest tribunals to be clothed with the exercise of this power, so that the claimant might, on due application with the requisite proof, cause the fugitive to be arrested and removed or surrendered by the Marshal of the District, under regular judicial process by habeas corpus. To such a course of proceeding, and to such a source of power, I should rather apprehend the Act of Congress ought to have applied, and given facility and direction. Such a course of proceeding would be efficient, and more safe for the fugitive, and more consistent with the orderly and customary administration of justice. It concerns the common interest and intercourse among the several States, and is a branch of international jurisprudence."

It is not clear whether Kent adopted the fourth construc

tion, under which a case arises in which the demandant State and the fugitive charged with crime are the parties, or that view, included under the third construction, according to which the demandant State and the national Government are parties in a case within the judicial power.'

734. In pursuance of the analogy supposed to exist be tween these two provisions, as already indicated,' an inde pendent inquiry into the true construction of this provision will be preceded by the citation of the authorities bearing on the construction of the provision for the delivery of fugitives from labor, and, in connection, on the power of Congress to legislate for the purpose of carrying the same into effect.

$735. There has never probably been an instance of an application to the Government of any State, or to the chief executive officer of any State, for the delivery of a fugitive from labor as a duty of the State under the first or the second construction.❜

It seems to have been taken for granted that, if this provision creates a duty for the State, the Legislature must yet first authorize some person to make the delivery.

§ 736. In neither of the statutes passed by Congress is there any provision for the appearance of the national Government or of the State in which the fugitive from labor is found, as a party against whom a claim is made by the owner. This may be taken as legislative authority against the second and third construction.*

1

If by its actual legislation Congress has authorized the de

Story, in Comm. § 1811, has only a few words in justification of the fugitiveslave provision, and in § 1812 briefly vindicates the means provided by Congress in the Act of 1793. for carrying the two provisions into effect. These last will be cited post in Chs. XXVIII., XXIX. In the second edition, his editor, in § 1812 a. has given a summary of Judge Story's Opinion in Prigg's case, on the question of the powers of Congress, and of the States, to legislate on the subject, and given the Opinion in a note.

It is remarkable that nothing is to be found in the Federalist on these two clauses of the fourth Article; though, in No. 43, among the "miscellaneous powers" of Congress, some powers are considered which, according to the writer's (Mr. Madison's) view, are derived from some of the other provisions of the Article. From this it would seem that the authors of those letters did not give to these provisions any such construction as would be a basis for the legislative power of Congress. See Parker, Ch. J., in 2 Pick., 19, and post, § 741. Compare the fuller statement of the parallel argument in § 729,

2 Ante, p. 380.

4

livery on claim of a fugitive from labor by persons who cannot, under the Constitution, hold the judicial power of the United States, it must be supposed that Congress has not proposed to carry into effect the judicial power of the United States in cases, according to the third and fourth construction.

The question whether the persons who have performed the actions authorized by the Acts of Congress relating to fugitives from labor have therein exercised power derived from the United States, and whether they have in such action carried out the delivery contemplated by the Constitution, will be hereinafter considered. If such action has in any cases been judicially justified as the exercise of power derived from the United States, and also as a full execution of the delivery required by the Constitution, such cases are authority against the idea that the legislation of Congress is intended to carry into effect powers vested in the judicial department.

The affirmation of the power in Congress necessarily involves the adoption of either the second, third or fourth of the constructions already stated, but does not of itself indicate which of the three has been received. But it may be observed that when, in justifying the legislation of Congress, it is affirmed that some legislation was necessary before the owner of a fugitive slave could make any claim in the State into which he escaped, the court or judge must have adopted the second construction. And that when in any case it is held that, independently of the Act of Congress, the owner might lawfully seize and remove him, the third or the fourth construction may have been adopted.

§ 737. But in marshaling the cases on this point it is necessary to call attention to the important distinction between a right under the provision itself, to seize the fugitive without process (in order either to remove him from the State, or to bring him before some magistrate of the forum, i. e. the State, for the purpose of making the claim, on which he may be delivered up), and a right of such seizure for the latter purpose only; whether it is regarded as a right arising under the provision, or one arising under the legislation of Congress.

738. Glen v. Hodges (1812),' 9 Johns. 67, trespass for taking from plaintiff his slave on a writ of attachment against the slave for debt. The slave had been seized as a fugitive, in Vermont, by the plaintiff, but without warrant from any officer mentioned in the law of Congress, and there was no evidence that the seizure was with the intention of carrying before such officer for a certificate. By the Court:-"There is no doubt that the negro was the property of the plaintiff, and had run away from service into Vermont. He was held to service or labor under the laws of this State [New York] when he escaped, and the escape did not discharge him, but the master was entitled to reclaim him in the State to which he had fled. This is according to a provision in the Constitution of the United States (Art. 4, § 2), and the Act of Congress of the 12th February, 1793, prescribes the mode of reclaiming the slave. It not only gives a penalty against any person who shall knowingly and willingly obstruct the claimant in the act of reclaiming the fugitive, but saves to such claimant 'his right of action for any injury he may receive by such obstruction.' The plaintiff was therefore in the exercise of a right when he proceeded to reclaim the slave," &c. If the court regarded the right as the direct effect of the Constitution, acting as private law, it thereby supported the third or the fourth construction. Still the right may have been regarded as originating under the Act of Congress.

739. In Wright v. Deacon (1819),' 5 Serg. & Rawle, 62, the alleged fugitive was in custody under a certificate given in conformity with the Act of Congress. On hearing motion to quash the writ de homine replegiando issued against the keeper of the prison, his custody under the certificate was sustained. Of the Opinion of the court, delivered by Tilghman, Ch. J., only the following passage bears on the question here considered.

1 The earlier fugitive-slave case, Butler v. Hopper (1806), does not bear on the present inquiry. (See ante, p. 409.) The judicial opinions will be given in the chronological order of the cases. The reader will bear in mind that in the following chapters these opinions are necessarily presented in fragments, and that, thereby, some injustice may occasionally be done to the learned writers.

2 The earlier case, Commonwealth v. Holloway (1816), 2 S. & R. 305, has no bearing on this question. See ante, p. 412.

After reciting the words of the Constitution, the judge says:'"Here is the principle: the fugitive is to be delivered up on claim of his master. But it required a law to regulate the manner in which this principle should be reduced to practice. It was necessary to establish some mode in which the claim should be made and the fugitive delivered up. Accordingly, it was enacted by Congress," &c. These observations are apparently inconsistent with the doctrine that the provision itself operates as private law according to the fourth construction; or creates cases or controversies, within the judicial power, to which the national Government is a party, according to one adaptation of the third construction. Nothing is said to indicate the person upon whom the duty to deliver up is imposed by the provision.'

§ 740. In Hill v. Low (1822), 4 Wash. C. C. 327, the action was for the penalty, by the fourth section of the Act of 1793, for obstructing the plaintiff in seizing his escaped slave in Philadelphia. It was alleged in pleading, and not denied, that

1 The Opinion begins:-"This is a matter of considerable importance, and the court has therefore held it some days under advisement. Whatever may be our private opinions on the subject of slavery, it is well known that our Southern brethren would not have consented to become parties to a Constitution under which the United States have enjoyed so much prosperity unless their property in slaves had been secured. This Constitution has been adopted with the free consent of the citizens of Pennsylvania, and it is the duty of every man, whatever may be his office or station, to give it a fair and candid construction." The judge then recites the words of the constitutional provision, and proceeds as in the text above. It was superfluous in the judge to seek a justification for "fair and candid construction" of the Constitution. The introductory sentence has often been quoted in later cases, though it is difficult to see how any conclusion as to the legal effect of the clause can be drawn from it. It is principally worth noting as the commencement of a method of constitutional interpretation and construction which has not, as yet, received the sanction of judicial usage except in this class of cases. A court has no right to discriminate provisions of the Constitution as more or less essential to its existence, much less to distribute the powers of sovereignty according to such view. Judge McLean, in McQuerry's case, 5 McLean, 478, lays great stress on the importance which, “on information received from Ch. J. Marshall," was attached by the convention to the rendition of fugitive slaves. Other evidence as to the importance then attached to this provision is very meagre. Smith, J., 3 Wisc. 16. It is altogether derived from the report of the Debates in Madison papers, 1447, and is fully quoted by Judge Smith in 3 Wisc. 28-32 and 135. See also 9 Ohio, 144, 200, 237, where the counsel and judges examine it very particularly.

217 Am. Jurist, 107, remarks that the opinion in this case as to the constitutionality of the law of Congress was extra-judicial; that the case ought to have been decided on the ground that the plaintiff had already sued out a habeas corpus and been remanded on the return, and therefore could not have the writ de homine replegiando.

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