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Government of the United States, the only known administrative instrument of the will of the authors of the rule; and that Congress may legislate to carry into effect the power so vested in that Government.

3. According to the third construction, these provisions act directly on some certain public and private persons, viz.: the Executive of a State and the person to whom the service of a fugitive bondman is due, on the one hand, and the national Government, on the other, creating a relation in which such Executive, or such private person, possesses a right correlative to an obligation of the national Government, and either giving rise to a class of "cases arising under the Constitution," or to "controversies to which the United States is a party," coming within the extent of the judicial power of the United States; or giving occasion for claims against the United States, or against the national Government, for the satisfaction of which Congress may provide in any manner consistent with other parts of the Constitution.

4. According to the fourth construction, while these clauses are taken, as in the preceding view, to be law in the strict and proper sense, private persons only are its immediate subjects, and the rights given and obligations imposed by it are the constituent parts either of relations between private persons or relations between private persons owing an obligation and a State appearing beyond its own jurisdiction as the person claiming the correlative right. Under this view these clauses have the character of private international law, in applying to persons distinguished by their domicil, or by previous subjection to the law of another jurisdiction, but are binding on private persons, within the limits of the United States, as a national municipal (internal) law, without reference to the limits of the States; except as they are the territorial jurisdictions by whose existence the escape of a fugitive, from one system of punitive laws, or from service or labor under a local law, into another forum, is rendered possible. Under this view the right of the claimant owner, or demandant State, and the obligation of the fugitive from labor or from justice exist under that law which has been before de

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scribed as that part of the domestic international private law of the United States which, in authority, is identified with the national municipal private law, and therefore called quasiinternational. As a consequence of this construction it will follow, that the demand or claim of such rights and the denial of such obligations will create cases such as are mentioned in the third Article as within the judicial power of the United States, and such as are within the concurrent judicial power of the States, because the subject matter is within the original jurisdiction of the State.

$729. The authorities on the construction of the provision for the demand and delivery of fugitives from justice, and, in connection, on the power of Congress to legislate in respect to its execution, are first to be considered.

The earliest authority' is the action of Congress itself.

If Congress, in legislating, had proposed to maintain the right of the demandant Executive, or State, as correlative to a duty of the State in which the fugitive is found (according to the second construction), it would seem that the State owing the duty would have been required or allowed to appear, on hearing of the demand, as a party interested. If the Governor upon whom the demand is to be made derives power in the matter from the Act of Congress, as commonly supposed, it is

'On the marshaling of the authorities, compare ante, pp. 244, 245. In the first controversy which arose under this provision, two years before the act of Congress (ante, p. 386), the public officers concerned differed on the question whether legislation was necessary to give effect to the provision. But none held that the demand and delivery would, under the Constitution alone, be a case within the judicial power. Randolph, U. S. Atty. Gen., who held that no law, State or federal, was necessary, supposed that the Governor, acting for the State, in fulfilling its duty as a political person under the compact, would have power to order the extradition. He argued, "The Executive of Virginia contend that her own Constitution and laws and those of the United States being silent as to the manner and particulars of arrest and delivery, they cannot, as yet, move in the affair. To deliver up is an acknowledged federal duty, and the law couples with it the right of using all incidental means in order to discharge it. I will not inquire how far these incidental means, if opposed to the Constitution and laws of Virginia, ought, notwithstanding, to be exercised, because McGuire and his associates may be surrendered without calling upon any public officer of that State. Private persons may be employed and clothed with a special authority. The Attorney General [of Va.] agrees that a law of the United States might so ordain: and wherein does a genuine distinction consist between a power deducible from the Constitution as incidental to a duty imposed by that Constitution and a power given by Congress as auxiliary to the execution of such a duty ? Am. State Papers, Misc. I., 41.

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 legislation 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

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. 811. 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.

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