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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 Snpreme 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.

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a particular class of its duties, and, consequently, would regard his authority as politically derived from the State. In other words, Judge Taney, in language contradictory to that of Judge Pope in a case hereinafter cited,' would consider the power as official in the Governor, and not personal.

Whether the court's refusal of the mandamus is consistent with passages in the Opinion declaring the existence of an "absolute right" in the demanding party and "a correlative obligation" on the other side, and that, the right and obligation being established by the Constitution, "it became necessary to provide by law the mode of carrying it into execution," is not very material here to consider.

2

847. Chancellor Kent, in the passage already cited from his Commentaries, seems to be the only juristical authority holding that the power exercised is judicial in quality.'

848. In some of the cases under the law of 1850 (wherein an argument, that the action of the commissioners of the United States Courts is not judicial in character, is based on the doctrine that the power exercised by the latter, in respect to fugitives from labor, is of the same quality with that exercised by the Governors of States in respect to fugitives from justice) it is assumed, as beyond question, that the action of the Governors, under the law of 1793, is not an exercise of judicial power. In these instances, while it is admitted that the constitutionality of this Act of Congress in this respect has never been the subject of direct judicial decision, it is common to refer to the fact

1 Post, § 849.

2 Ante, pp. 428, 429.

3 Ante, 733. Similar authority for the same doctrine may be found in the bill, noted ante, p. 425. From a Report in the Legislature of Virginia, March 17, 1840 (Va. Laws, 1839, p. 155-166), it seems that the Legislature of Georgia had proposed an appeal to the Congress of the United States so to amend the statutes heretofore passed upon that subject as to authorize the demand in the cases contemplated to be made upon the circuit judge of the United States having jurisdiction in the State where the fugitive may be found. The Committee of the Virginia Legislature "has decided objections, and it cannot withhold the expres sion of its regret that Georgia, with whom Virginia will make common cause, should recommend it. In the first place, the surrender of a fugitive from justice is properly an executive duty," &c. And, on p. 166, the Committee say that there would be danger of collision between the State and the Federal authorities, and that they are unwilling to have the subject of slavery discussed in this way in Congress, on the introduction of Virginia. The report was on the controversy with New York, ante, p. 10. An inference as to the character of the action may be founded on the statute which places the extradition of fugitives in the District of Columbia within the powers of the Chief Justice of the District. Ante, p. 24. See also the law of Kentucky, ante, p. 15, n., and of Indiana, ante, p. 129, n

that the Governors of States have repeatedly made the delivery required, and that their power to do this in a proper case has never been questioned. It has been common to quote Judge Story's statement of this argument in Prigg's case.'

This "acquiescence," as Judge Story called it, or this acting in the manner contemplated by the statute, is indeed evidence that the Act has not been considered unconstitutional, and, as regards the present inquiry, that the power exercised by the Governors is not the judicial power of the United States. But the conclusion is the same, whatever may be the nature of the power, if that power is not derived from the United States. From the use made of this conclusion in sustaining the legislation respecting fugitives from labor, it will be seen that the important inquiry is, whether, in denying that the power exercised by the Governor is the judicial power of the United States, it is the quality of the power or the source of the power which is referred to. Judge Story, in the place cited, had no reference to the question of the nature of the power exercised by the Governors of States. He was arguing only in support of the power of Congress to legislate in reference to the subject; which power is here assumed to exist. The power of a Governor of a State to act in the manner contemplated in these sections of the Act of 1793 has never been. questioned in the cases arising under them, but whether the decisions sustaining his action involve the proposition that his action is not an exercise of power properly belonging to the judiciary, under the clause of the Constitution above cited, depends on the question, whether he is held in those cases to be exercising powers derived from the national Government, or a power incident to his office as State Executive. If his power in this respect is derived by the United States, then the precedents sustaining his action may be taken to affirm that the power is not judicial power, in its quality.

§ 849. It was held, in Ex parte Smith (1842), 3 McLean's C. C. R. 129, 131, by Judge Pope, that the Governor of Illinois had acted as the instrument or appointee of the national

1 16 Peters, 620, ante, p. 472; and see McLean, J., to the same effect, 16 Peters, 665, and Swan, Ch. J., 9 Oh. 190.

Government, and not as the officer of the State; that the Act of Illinois requiring him to make such surrender, while it may have imposed upon him a duty, conferred no power, and did not make him the instrument of the State. The judge says:"The power is not official in the Governor, but personal.' It might have been granted to any one else by name. But considerations of convenience and policy recommended the selection of the executive who never dies."

. But it may be doubted whether this theory has been uniformly adopted.' The statute, it will be noticed, does not direct upon whom the demand shall be made by the Executive of the State from which the alleged criminal fled, but contemplates cases in which that demand, accompanied by certain specified proofs, shall have been made upon the Executive of the State into which such criminal has fled. It is true that it then declares what "shall be the duty" of the latter in such case; and if a duty is imposed by the Act, it would appear that some authority must have been at the same time conferred."

§ 850. In all or nearly all the States Acts have been passed to enable the Executive to make the delivery of a fugitive from justice according to the constitutional provision ;*

'But the language of the Act is singularly inappropriate to this view of the power. The words are:—“It shall be the duty of the executive authority of the State to," &c.

2 In Prigg's case, 16 Peters, 664, Judge McLean seems to have justified the action of the State magistrates in delivering up fugitives from labor as the exercise of power politically derived from the State, not from the United States (post, §870); and referring to the compliance of the Governors of States with the provisions of the Act, he draws this parallel between their action and that of the State magistrates:-"Now, if Congress may by legislation require the duty to be performed by the highest State officer, may they not on the same principle require appropriate duties in regard to the surrender of fugitives from labor by other State officers ?" "Appropriate duties" must mean duties appropriate to the offices they should be holding under the State. It would seem that Judge McLean would hardly have agreed with Judge Pope, in Smith's case, that the power in the Governor is not official, but personal.

In Ex parte Smith, 3 McLean, 131, it is said that the Act directs the demand to be made upon such Executive. Story, J., in Prigg's case (16 Peters, 620, ante, p. 473), speaks of the Act which designated the person (the State Executive) upon whom the demand should be made."

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See ante, the statutes empowering the Governor to deliver up fugitives from justice noted under laws of Virginia, p. 8; Kentucky, p. 15; Massachusetts, pp. 31, 33; Maine, p. 34; New Hampshire, p. 36; Connecticut, pp. 42, 43, 48; New York, p. 58; Tennessee, p. 94; Illinois, p. 136; Michigan, p. 138; Wisconsin, p. 142; Alabama, p. 153; Louisiana, p. 165; Missouri, p. 169; Arkansas, p. 172; Iowa, p. 177; Minnesota, p. 178; Kansas, p. 187; Florida, p. 193; California, p. 204; Oregon, p. 217.

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