delivery of such fugitive might be made by its proper officers. Whether such surrender or delivery could be made by either the executive or the judicial officers of one of the States without special local legislation, is a question partly of the exercise of judicial power by State officers under the national municipal law, which question has been considered in another part of this treatise,' and partly of the powers of the State executive and judicial officers under that international law which, acting on the State as a political person, is a law in the imperfect sense only, except as it may become identified with the local municipal law of that State,-which question should properly be taken up in a later portion of this work. For the claim, it is supposed, may be made either under this provision, operating as law in the strict and proper sense, or under international law, operating among the States as distinct nationalities.

In the earlier of these statutes the persons whose freedom may be drawn in question, whether as fugitives from justice or from labor, are described by the words used in the constitutional provisions. In the Act of 1850, sec. 6, 10, the person is described as held to service or labor, without adding "under the laws thereof."

840. In the cases of Bushnell and Langston, who had been convicted, in the United States District Court, under the last law, it was urged that the act charged in the indictment, which followed the statute in this particular, had not been shown to be criminal. Judges Brinkerhoff and Sutliff held that the indictment was therein defective; by not showing a case in which the District court had jurisdiction. 9 Ohio, 221, 323. The majority of the State court refused to examine into the validity of the indictment. Ibid. 183, 217. The question, being of the powers of courts on habeas corpus and of criminal jurisprudence, cannot be here examined.

841. The Acts of Congress, or of the States, intended to carry out the effect contemplated by this provision, may have been so worded as not to include all persons to whom the de

'Ante, Vol. I. pp. 496-500.

On the general topic, see R. C. Hurd on Habeas Corpus, &c., ch. 6, sec. 1-3.

scriptive terms of the provision itself will apply. In the case of John Davis, at Buffalo, August, 1851, it was held by Judge Conckling, of the U. S. District Court, that the provisions of the tenth section of the Act of September 18, 1850, were prospective and were not applicable to Davis, who had escaped on or about August 25, 1850.'

842. The personal extent of these clauses of the Constitution has, it will be remembered, been considered in a previous chapter. The Act of 1850 provides new means for carrying into effect the provision relating to fugitives from labor. If there is no legal right under the provision itself, or if the claim can be a matter of legal controversy only when a statute has been enacted to give it effect, it might be argued that the statute can extend only to cases of escape occurring after its enactment. But if the fourth construction of the provision is adopted, under which the owner's right of claim is a valid, legal right, independently of State or national legislation, the statute regards only the remedy to be applied in maintaining a pre-existent legal right, and the remedy given should be taken, on well-known principles, to apply to all cases of escape, whether occurring before or after its passage. But the lapse of time has rendered the question, under these two Acts, of little practical importance.

§ 843. The purpose of the provisions in the fourth Article of the Constitution being to sustain in one State jurisdiction certain rights and obligations which originated under the local law of another, the Acts of Congress must not do more than sustain such rights and obligations as may be created or guaranteed by the provisions themselves. But in doing this it may be necessary and proper to create new rights and obligations, as accessory to and instrumental in sustaining the former. The nature and extent of these provisions, as they stand without the legislation of Congress, and the effect which they have in reference to the local jurisdictions of the several States, have already been considered. The ancillary rights and obligations created by the statutes are to be now examined as

1 IV. West. L. Journal, 14; and IV. Mon. L. Rep. 159.

2 Ante, Ch, XXV.

See on retrospective statutes, 1 Kent, 455.

incidents of the means or instrumentalities provided by these statutes for carrying out the provisions.

The rights and powers which may be exercised under any provision of the Constitution can only be such as are in harmony with its other provisions, and the exhibition of any one such right or power requires, in fact, the exposition of a large portion of the Constitution. It is evident that the exercise or maintenance of any rights or powers under these statutes need here be examined only so far as they have practically been considered questionable in courts of law. The questions which are to be examined in considering the propriety of the means or instrumentalities provided by these statutes relate either to

1. The tribunals, official persons, or public officers before or upon whom the demand or claim is to be made, and by whom the delivery is to be enforced.

2. The remedial process by which the demand or claim is to be presented, the proofs on which its legality is to be decided, and the method in which the delivery to the demandant or claimant is to be carried into effect and his custody maintained.

3. The penalties by which rights and obligations created by these provisions or by these statutes are to be secured and enforced.

844. The first and second sections of the Act of 1793 constitute the only legislation of Congress relating to the delivery of fugitives from justice. The question which has arisen on this statute, in reference to the first of the above-named points of inquiry, is, whether it violates certain provisions in the Constitution of the United States' by conferring the judi

1 Art. III., Section 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.

In Art. I., sec. 2, it is provided that the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law. But the Congress may, by law, vest the appointment of such inferior officers as they think proper in the President alone, in the courte of law, or in the heads of departments.

cial power of the United States on the Governors of the States?

The parallel question which has arisen on the other sections of the same Act, relating to the delivery of fugitives from labor, and on the Act of 1850, is, whether the same provisions of the Constitution have been violated in the first of these statutes by conferring the judicial power of the United States on the State magistrates mentioned in the third section, or in the last, by conferring the same power on the Commissioners named in the first section?

The question is, first, whether, by the Act of 1793, the judicial power of the United States has been conferred on the Governors of the States?

In this inquiry the nature and source of the power exercised by those Governors, when acting in the manner provided by the statute, is to be determined.

845. The question of the nature and of the political source of the power exercised by the Governors of States in these instances does not appear to have been directly passed upon in any decided case, unless in the recent case in the Supreme Court of the United States, Kentucky v. Dennison.

In the Opinion delivered by Chief Justice Taney, it is expressly denied that the power exercised by the Governor of the State upon whom the demand is made, is judicial in its 'nature. It is affirmed that the duty of the Governor in such cases is merely ministerial, without the right to exercise either executive or judicial discretion" (ante, p. 429), and that it is no "discretionary executive duty," no "discretionary duty upon which he is to exercise any judgment, but is a mere ministerial duty—that is, to do the act required to be done by him;" and his duty is, in the same place, declared to be like that of a marshal or sheriff. (Ante, p. 431.)1

Compare language of Savage, Ch. J., in Clark's case, 9 Wend. 220 (which might have also been cited as anticipating Judge Taney in the view taken by him of the basis of legislative power, ante, § 818),—" Whether the prisoner is guilty or innocent, is not the question before us; nor is any judicial tribunal in this State charged with that inquiry. By the Constitution, full faith and credit are to be given in all the States to the judicial proceedings of each State. When such proceedings have been had in one State which ought to put any individual within it upon his trial, and those proceedings are duly authenticated, full faith and credit

§ 846. The Opinion being so express in denying the judicial character of the action of the Governors, the view taken therein of the political source of the power exercised by them, in this instance, may not be very material to the present inquiry, and the bearing of the judgment of the court, as well as of the language of the Opinion, on that point may be open to some doubt.

But, from the court's refusal to issue the mandamus, it would seem proper to infer that, whatever may be the powers or the duties of the Governors of the States upon whom the demand is made, they are not, in the opinion of that tribunal, derived from the Act of Congress, nor from any national law which may be enforced by the national authority. The language of the Opinion appears to agree with the same view. Judge Taney says the Act "does not import 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." (Ante, p. 433.) Though the judge goes on to say that this duty is created by the Constitution, and so, of necessity, regards it as a duty under the national law, still he does not regard it as a duty which, as person under law, the Governor can be required to perform. Notwithstanding his argument that, in the provision itself, the Governor of the State was contemplated as the person upon whom the demand is to be made (ante, pp. 427, 428), he says also that "the word 'duty,' in the law, points to the obligation on the State to carry it into exccution." (Ante, p. 432.)'

This language is indeed to be reconciled with the denial of any "executive discretion" above noticed, but it would seem that Judge Taney would derive the Governor's authority from his being the representative of the State in the fulfillment of

shall be given to them in every other State. If such person flee to another State, it is not necessary to repeat in such State to which he has fled the initiatory proceedings which have already been had, but he is to be sent back to be tried where the offence is charged to have been committed—to have the proceedings consummated where they were begun."

The view taken of the position of a State Governor in this matter by Judge Smith, in 3 Wisc. 35 (ante, p. 511), seems to agree with these observations of the Chief Justice.