ble by the judicial power of the United States and the concurrent judicial power of the States. It is, whether these provisions operate as private law on the fugitive from justice or from labor, and, irrespectively of legislation, may be enforced by the judicial power of the United States or of the several States; and, if they may be so enforced, whether there are any constitutional restrictions on the manner in which such power may be applied?

§ 822. And first, as to a demand for the delivery of a fugitive from justice.

If by Act of Congress the power to deliver up a fugitive from justice, on demand, has been vested in persons who cannot under the Constitution of the United States hold the judicial power of the United States, and who cannot under the Constitution of a State hold the judicial power of the State, such Act of Congress and the adjudged cases which support it may be authorities to show that a case within the judicial power does not arise on such demand. This class of authority will be presented in the next chapter, where the constitutionality of the Act of Congress of 1793, in view of the investiture of the judicial power of the United States, is examined.

The opinion of Kent, which has been given among the authorities on the construction of this provision,' seems to support the view that the demand and delivery of a fugitive from justice would be within the judicial power. But it is doubtful whether that author intended to say that such would be the case under the Constitution alone, independently of legislation, or only that by and under such legislation it could be made a proper subject for the action of the judiciary.

Other juristical authority, taking the same view, may be found in the opinion of those members of Congress who may have supported the bill on this subject which was rejected in the House of Representatives, March 1, 1861.'

But if any authorities support the doctrine that a case within the judicial power arises under the provision itself when a claim can be made for the delivery of a fugitive from

'Ante, § 733.

2 Ante, p. 425, note.

labor, they also, to some extent, support the same theory in respect to fugitives from justice; at least so far as they declare that operation of the two provisions is in all respects parallel.

§ 823. Under any construction of this provision, the right created is a right of the State from which the person charged had fled; it can hardly be said to be the right of "the executive authority" designated as the proper person to make the demand. If the provision should receive the second construction, and be taken to act on the State into which the fugitive from justice had escaped, creating a duty for such State correlative to the right of the State from which he fled, the refusal of the former to perform its duty might give rise to a controversy between the two States, to which the judicial power of the United States should extend by the express terms of Art. III., sec. 2. But on the demand alone, a controversy could hardly be said to arise between the supposed States.

But under the fourth construction the obligation correlative to the right is due by the fugitive himself. The "case" which arises under the Constitution, and which is within the judicial power, is, if it be such, a case, between the demandant State, or demandant Executive, and the person charged. The judicial power would not, under this view, determine the rights and obligations of the State in which the person charged is found, but the rights and obligations of that person—a private individual. In this view, therefore, there is nothing in the eleventh Amendment to remove the supposed case from the extent of the judicial power of the United States.

§ 824. A construction of this constitutional provision by the analogous article in the compact of the New England colonies of 1648, if allowable, may afford an argument in favor of the view here suggested. By that article, the demand for a fugitive criminal was to be made upon "the magistrate or some of them, where for the present the said prisoner abideth,” who was to order the delivery.' But the word "magistrate" at that period appears to have been used indifferently for all public functionaries, and the judicial and executive functions were not so distinctly separated as in later times.

1 See ante, Vol. I., p. 269, note [c].

§ 825. Secondly, as to a claim for the delivery of a fugitive from labor.

If, by any legislation of Congress, the power to carry out the object of the other provision, by delivering up a fugitive from labor on claim, has been conferred on persons who cannot under the Constitution be invested with the judicial power of the United States, such legislation, and the adjudged cases which support it, are authorities to show that such delivery on claim does not properly belong to the judicial power. This class of authorities will be presented in another chapter when the constitutionality of the laws of Congress on this subject is examined.'

§ 826. With the exception of the dictum of Chancellor Walworth, in Jack v. Martin,' there is probably no judicial opinion which can be cited in support of the doctrine that the claim of a master under this provision may be enforced, and a delivery made to him by the ordinary courts of the United States and of the several States, independently of any legislation. The doctrine seems, however, to be necessarily involved in maintaining the power of Congress to legislate as power to carry into effect the power of the judicial department of the United States. The authorities supporting that basis of legislation will be noticed in the latter part of this chapter.'

827. The exercise of judicial power by a State court is determined either by antecedent judicial usage or by the State legislation. The exercise of the judicial power of the United States is distinguishable according to the nature of the rights and obligations which are the subject-matter of the judgment; that is, as the power is applied in cases at common law or in cases not at common law. On the exercise of the powers of the national Government, in reference to the first of these classes of cases, there are special limitations in the Constitution and the Amendments. Subject to these, the exercise of the judicial power of the United States by the Circuit and District courts, is regulated by adopting, under the legislation of Congress, the English common law of remedy as it may have.

1 See post, in Ch. XXIX. Compare ante, § 822. 14 Wendell, 527, and ante p. 451, note.

See post, § 832.

prevailed at the date of such legislation in the States in which those courts may exercise jurisdiction.' In causes of equity, and of admiralty and maritime jurisdiction, the forms and modes of proceeding adopted under the same authority are according to the course of the civil law; that is to say, "the principles and usages which belong to courts of equity and courts of admiralty respectively as contradistinguished from courts of common law," are adopted as a law of remedy,' subject to various modifications expressed in the laws of Congress establishing those courts, and to the powers conferred on them to regulate their own proceedings.'

The practice of the Supreme Court, in the exercise of its very limited original jurisdiction, is directed by rules which it has full power to establish for itself, subject only to a few very general provisions in the judiciary acts. All these courts are empowered "to issue writs of scire facias, habeas corpus, and all other writs not specially provided by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.”*

If the subject-matters of the rules contained in these provisions in the fourth Article constitute cases at common law, there are certain constitutional restrictions which apply to the exercise of the judicial function by the national authority. If they do not constitute cases of that denomination, there are other restrictions which apply generally to the exercise of any authority conferred by the Constitution of the United States, which therefore must modify the judicial action of the national courts in these cases.

1 Acts Sep. 24, 1789, § 34, I. Stat. U. S. 73; Mar. 2, 1793, § 7, ib. 335; Sep. 29, 1789, § 2, ib. 93; May 19, 1828, § 1. IV. Stat. U. S. 278. Wayman e. Southard, 10 Wheaton, 1; Robinson v. Campbell, 8 ib. 212, 222; 1 Peters' C. C. R. 1. On the exceptional position of Louisiana, in which the remedial forms of the civil law had exclusively prevailed, see Act May 26, 1824, IV. St. U. S. 62; 3 Peters', 433, 446.

2 Act May 8, 1792, § 2, I. St. U. S. 276; the authorities last cited; Manro v. Almeida, 10 Wheaton, 473.

The same authorities; Act Sep. 29, 1789, § 17; Mar. 2, 1793, § 1; L. St. U. S. 335.

Acts of Sep. 24 and 29, 1789. See Conckling's Treatise, 3d ed. 300,

* Act of Sep. 24, 1789, § 14. It seems that, in matters of habeas corpus in the United States courts, the law followed is the common-law practice of England, as it stood at the time of the adoption of the Constitution. Ex parte Watkins, 3 Peters, 201; Ex parte Randolph, 2 Brock. C. C. 476.

The judicial and juristical opinions on the force of such constitutional restrictions to limit the action of the national Government in carrying these provisions into effect, have been expressed only in cases arising under the Acts of Congress directed to that end. These opinions will be presented in the succeeding chapters. In no instance, probably, has a demand for a fugitive from justice or a claim for a fugitive from labor been brought before a judicial tribunal, except in proceedings instituted under the Acts of Congress or some State law.

§ 828. If the judicial power of the several States may be concurrently exercised in applying the law contained in these provisions, it would seem that it must be applied consistently with whatever guarantees private persons may claim under law proceeding from the same source; i. e., guarantees contained in the national Constitution.' But, in other respects, the exercise of State judicial power must depend altogether upon the State constitution. There is nothing in the Constitution of the United States to determine the exercise of State judicial power, except the general provision in the sixth Article, that "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding."

The delivery of fugitives from justice and from service was evidently, originally, within the juridical power of the several States. It would appear, therefore, that cases arising under these clauses, according to the fourth construction, would fall within the concurrent judicial power of the States, and that they will be within the cognizance of any State court having ordinary or common-law jurisdiction, and by State legislation may be placed within the cognizance of courts of

'But if a law in reference to the same subject-matter may proceed from the "reserved powers" of the State, in the exercise of concurrent juridical or legisla tive power, such law could be applied by the judicial power of the State, subject only to guarantees in the State constitution or bill of rights.

Ante, § 456.