special or limited jurisdiction. Since the law to be applied in the supposed case is national law in its authority, it is necessary to admit that the application of it may by Congress be confined to the national judiciary, and that, while it is concurrently administered, the supreme national judicature will have the same duties and powers in reference to its application by State courts which it has in the application of any other rule found in the Constitution and operating as private law.'

§ 829. On general or common-law principles it would seem that State courts of ordinary or general jurisdiction have power to frame and issue writs suited to bring up the alleged fugitive from justice or from labor to answer the demand or claim." The writ of habeas corpus, as ordinarily spoken of, may be called "that legal process which is employed for the summary vindication of the right of personal liberty when illegally restrained." As such it would be unsuitable for the purposes of a demandant or claimant under either of the constitutional provisions, since there would not, in either case, be any third party supposed to be unjustly detaining the fugitive, against whom it could be directed. It is indeed the habeas corpus cum causa, ad subjiciendum et recipiendum, the writ of right, the great English guarantee of personal freedom, which, in the Constitution and in bills of rights, is particularly referred to as the writ of habeas corpus. But the term is generic for a variety of writs known to English law. Other writs of the same class, as habeas corpus ad respondendum, ad faciendum et recipiendum, ad satisfaciendum, might be employed in these instances. Or perhaps the writ de nativo habendo, with

1

Ante, § 459. Jack v. Martin, 14 Wend. 527, Walworth, Ch. :-"The Supreme Court of the United States is possessed of ample powers to correct any erroneous decision which might be made in the State courts against the right of the

master."

It is provided in R. S. of New York, P. III., c. 3, t. 2, art. 1, § 1, as before in 2 R. L. of 1813, p. 147, that courts of record shall have power "to devise and make such new writs and forms of proceeding as may be necessary to carry into effect the powers and jurisdiction possessed by them."

Rollin C. Hurd's Habeas Corpus, 143.

Ib. 144.

The law of New York, of 1828 (ante, p. 57), provided for issuing in these cases a writ of habeas corpus, without other descriptive words. According to the minutes of a trial of an owner for attempting forcibly to abduct his slave from England, in King's Bench, Feb. 20, 1771, which are given in Hoare's Life of Granville Sharp, 4to. p. 59, Lord Mansfield said: "I have granted several

the adverse writ de proprietate probanda, might be revived for the purpose of enforcing the claim for a fugitive from labor.'

If the master may seize the slave for the purpose of removal, as decided in Prigg's case, then, as a means of trying the question of ownership, a habeas corpus cum causa or a writ of personal replevin may be sued out on behalf of the person seized. But, according to the view of the provision which is herein taken, the right to seize the fugitive is given only, if at all, to enable the claimant to bring him before a court which

writs of habeas corpus upon affidavits of masters for their negroes. Two or three, I believe, on affidavits of masters deducing sale and property of their negroes, upon being prest, I have granted habeas corpus to deliver them to their masters; but whether they have this kind of property or not in England, has never been solemnly determined."

1 For the nature of the proceeding on these writs, see Fitzherbert's Nat. Brev. fo. 77, 87; Co. Litt. fo. 124. Mr. Sumner, in a speech in the Senate of the U. S. on his motion to repeal the fugitive-slave bill, Aug. 26, 1852, summed up part of his argument as follows:

:

Briefly, the States are prohibited from any law or regulation' by which the fugitive may be discharged, and, on the establishment of the claim to his service, he is to be delivered up. But the mode by which the claim is to be determined is not specified. All this is obviously within the control of each State. It may be done by virtue of express legislation, in which event any legislature, justly careful of personal liberty, would surround the fugitive with every shield of the law and constitution.

"But such legislation may not be necessary. The whole proceeding, without any express legislation, may be left to the ancient and authentic forms of the common law, familiar to the framers of the Constitution, and ample for the occasion; If the fugitive be seized without process, he will be entitled at once to his writ de homine replegiando, while the master, resorting to process, may find his remedy in the writ de nativo habendo—each writ requiring trial by jury.

"If, from ignorance or lack of employment, these processes have slumbered in our country, still they belong to the great arsenal of the common law, and continue, like other ancient writs, tanquam gladium in vagina, ready to be employed at the first necessity. They belong to the safeguards of the citizen. But, in any event, and in either alternative, the proceedings would be by 'suit at common law,' with trial by jury, and it would be the solemn duty of the court, according to all the forms and proper delays of the common law, to try the case on the evidence; strictly to apply all the protecting rules of evidence, and especially to require stringent proof, by competent witnesses under cross-examination, that the person claimed was held to service; that his service was due to the claimant; that he had escaped from the State where such service was due; and also proof of the laws of the State under which he was held. Still further, to the courts of each State must belong the determination of the question, to what classes of persons, according to just rules of interpretation, the phrase 'persons held to service or labor' is strictly applicable.

44

'Such is this much-debated provision. The slave States, at the formation of the Constitution, did not propose, as in the cases of naturalization and bankruptcy, to empower the national government to establish an uniform rule for the rendition of fugitives from labor, throughout the United States; they did not ask the national government to charge itself in any way with this service; they did not venture to offend the country, and particularly the Northern States, by any such assertion of a hateful right. They were content, under the sanctions of compact, to leave it to the public sentiment of the States. There, I insist, it shall remain."

may decide on the claim. It has been seen that there are cases in which an arrest or seizure by the claimant, for the purpose of bringing the alleged fugitive before a court or magistrate for the purpose of making a claim and procuring a certificate under the Act of Congress of 1793, has been justified: the right being supposed to be given by the Constitution itself, though not provided for in the statute.'

§ 830. So far as the judicial power of the United States should be applicable in cases thus arising under these provisions, its action would have equal extent throughout the United States, and would be adequate to the international extradition and return of the fugitive in any supposed case. But the concur

rent judicial power of the State in which a fugitive might be found, could not, even in administering the same national law, have force or extent beyond the several jurisdiction of that State. At least, it would depend upon the "effect" given to "acts, records, and judicial proceedings" of one State in every other State, under the first section of the fourth Article, whether the judicial tribunals of other States could or could not inquire into a custody claimed under the exercise of the State judicial power of some other State, in one of these cases. Still the international extradition or delivery and return of a fugitive to the State from which he had escaped might be fully completed under the judicial power of the State, when the States, as between which the extradition or delivery was required, should happen to be adjoining States.

§ 831. But the courts vested with the judicial power of the United States constitute a department of the Government, and their judicial officers are officers of that Government. It would seem that if any laws are necessary and proper for carrying into effect the powers of those courts in reference to cases arising under these clauses, that Congress has a power of legislation expressly given, by the last clause in the eighth section of the first Article, which gives power "to make all laws which shall be necessary and proper for carrying into execution * * all other powers vested by this Constitution in the

' Hill v. Low, 4 Wash. C. C. 327, ante, p. 439; Commonw. v. Griffith, 2 Pick 11, ante, p. 440; Johnson v. Tompkins, 1 Bald. C. C. 571, ante, p. 443.

Government of the United States, or in any department or officer thereof."

§ 832. There is probably no authority, strictly judicial,' which distinctly refers the legislation of Congress to the power to carry into execution the powers of the judicial department

1 The language of Chancellor Walworth in Jack v. Martin, 14 Wen., 526 (ante, p. 451, note), approaches very nearly to a justification of the power of Congress on this ground. Though he thought that the law of 1793 was "certainly not a law to carry into effect the judicial power of the United States," he intimated that, if "the judicial power of declaring and enforcing the rights secured by the Constitution" could not be otherwise made effectual in securing the rights given by this clause, Congress might legislate for that purpose. Mr. O'Conor in that case maintained the power of Congress on this ground; 14 Wendell, 518:-"The power [i. e. of legislation] claimed is expressly granted. The Constitution declares that slaves escaping from service shall be delivered upon claim' of the party to whom such service may be due. If the words 'on claim' mean a mere informal demand in pais, then there is an end of the question, for we act under the Constitution itself, and all legislation on the subject by Congress or the States is repugnant to our rights secured by the Constitution, and therefore void; but if, as every lawyer must admit, they contemplate, as a prerequisite to the right of removal, a judicial proceeding by which the claim shall be tried and adjudged to be valid, a subject is presented which falls within the limits of judicial power. Art. 3, § 2, declares that the judicial power of the United States extends to all cases in law and equity arising under the Constitution. This clause is clearly a legal claim, and its assertion created a case in law arising under the Constitution. By Art. 3, § 1, the judicial power of the United States is vested in the Supreme Court and such inferior courts as Congress may ordain and establish; and in the general enumeration of powers, Art. 1, § 8, Congress is not only empowered, sub. 9, to constitute tribunals inferior to the Supreme Court, but also, sub. 17, to make all laws which shall be necessary and proper for carrying into execution the powers vested in any department of the general Government. In creating each of the officers named in the Act, a court, to pass upon and declare the validity of the claim to service which should warrant a removal, and in defining the mode of proceeding to adjudicate upon the claim, Congress acted in strict accordance with the authority granted to constitute tribunals in which should be exercised the judicial power of the Union, and to pass such laws as should be necessary to enable these tribunals to perform their functions."

Mr. Meredith, counsel, in support of the law of 1793, in Prigg's case, in the opening of his argument, held that legislation was necessary before the provision could have an effect on the persons intended. (16 Peters, 560, 561.) But, on p. 567, he observes:-" But if the question can still be considered an open one, there is no difficulty in showing that the power of legislation in reference to this subject is granted by the Constitution to Congress. It would be strange if it were not so; strange if, upon a subject of such intense and general interest, to which the mind of the convention had been so directly called, they had left their work unfinished-their purpose unaccomplished. It has been said, however, and may be said again, that the legislative power of the federal Government is a limited one; that the Constitution enumerates the cases in which it may be exercised, but that this is not among the number. That, besides these enumerated cases, a general power is given to Congress to pass all laws necessary and proper to carry into execution all powers granted by the Constitution to the Government, or any of its departments or officers. But that there is no power so granted in reference to this provision,-is this so? The Constitution declares that slaves escaping from service shall be delivered up, on claim, to the person to whom such service is due. What is the meaning of these words, on claim'? They look to a proceeding of a judicial character; to an assertion of the right of property to be

in cases coming within the meaning of the provision by taking the fourth construction. But, as will be seen from the last note, that theory has been advanced in two of the leading cases by counsel maintaining the actual legislation of Congress in respect to fugitives from labor.

In Booth's case, 3 Wisconsin, 45, 46, Judge Smith very summarily rejected this theory for the legislation of Congress,' which he there ascribed to the Supreme Court in Prigg's case.

8833. The legislation of Congress may be spoken of as being necessary and proper with reference to the end to be attained, that is, in being directed towards a necessary and proper object; and here the supposed object of legislation is the execution of the provisions of the fourth Article, and the question of the legislation of Congress in reference to the subject-matter is reduced to this, whether any law is necessary and proper for the execution of that judicial power of the United States in reference to these cases.

made before a tribunal competent to judge and decide; and to execute that decision by a delivery of the property if the claim is established. Is not this, then, a part of the judicial power which extends to all cases at law and in equity arising under the Constitution, laws, and treaties of the United States? Is not every such claim a legal claim? and, when asserted, is it not a case at law arising under the Constitution? If, then, the judicial power extends to cases falling within this provision of the Constitution, Congress had an unquestionable right to vest it. It was a duty to vest it, because this court has decided that the language of the Constitution in regard to the impartment of the judicial power is imperative upon Congress. Martin v. Hunter, 1 Wheat. R. 304, 316."

The same theory for the legislation of Congress is relied upon in Mr. Conway Robinson's essay already noticed. See 23 Am. Jurist, 351.

The case within the judicial power, according to the theory here proposed, must not be confounded with that which arises under the third construction, which Judge Story made the basis of legislation, and which has been noticed ante, § 790.

Ante, p. 514, note. Judge Smith argues that on this theory Congress might assume legislative power over any topics of law which the national courts examine when they determine the rights of parties within their jurisdiction. This is a groundless objection. It is the judicial power only which is regulated by the Act of Congress. Congress cannot change the law which is to be applied by the judicial power. Judge Smith also mistakes in confounding the doctrine with that of a common-law jurisdiction for the national courts, and the power to pass the Alien and Sedition laws,-a matter entirely distinct.

In 9 Ohio, 244, Judge Sutliff, arguing against his own conception of the received theory (ante, p. 527), denies that a case can arise, if the provision acts on the States as its subjects. But he also asserts that there can be no case within the judicial power of the United States, unless it has arisen under some Act of Congress. He thus denies altogether the operation of the Constitution as private law, and his argument would apply against the theory herein accepted, as well as against that to which he there objects.