cise of the concurrent judicial power of the State, if there was nothing in the State law to forbid them."

§ 883. It may be objected to the foregoing argument that the courts have affirmed an Act of Congress necessary to make the claimant's custody of his recaptured slave lawful in States other than that in which the delivery should take place,States through which it should be necessary for them to pass in returning to the State from which the fugitive had escaped ;* that, hence, when these courts affirm the competency of a State magistrate to give a certificate sufficient for this end, they attribute to his decision an authority which the judicial power of his own State could not give; for a custody resting on State authority would be valid only within the State.

But the answer is, in the first place, that no custody under a certificate so given by a State magistrate has ever in any actual case been so maintained in passing through another State, being a free State, so called. There is no reported instance in which it has become the subject of judicial inquiry-how far the custody would be valid under such circumstances or preclude a renewed inquiry into the claimant's right. In the greater number of cases the question could not have been made, because, usually, the State in which the fugitive was found and delivered up was contiguous to that from which he escaped, and in other instances the return might have been by sea. Of the cases referred to in Prigg's case, Jack v. Martin is the only one where free States intervened geographically between the State wherein the fugitive was found and that from whence he escaped. There is nothing to show that the slave was actually carried back to Louisiana. He might have been carried by sea; and if transported through other free States, there is nothing to show what force was attached to the certificate given by the Recorder.

But besides-even though it should have been decided that a delivery by a State magistrate according to the Act of Con

1

By sec. 9 of the law of Pennsylvania, 1825–6 (ante, p. 71), aldermen and justices of the peace were forbidden to act under the law of Congress; and by sec. 14 of the law of New York, 1828 (ante, p. 57), such magistrates were forbidden to grant any warrant or certificate in these cases. In this legislation there seems to be a recognition of a competency in courts of ordinary jurisdiction independently of the powers specially conferred on them by these State statutes.

See opinions noted, ante, p. 595, n.

gress would establish a right in the claimant to hold such fugitive, while thus in transitu, as under a law having a national effect or extent-it does not follow that the act of the State magistrate in deciding on such a claim and making such delivery, though performed according to the national law, is an exercise of a function politically derived from the United States. A right and obligation established by a law of national extent may constitute a valid legal relation between the persons affected by it, wherever the law extends, though the judicial determination of the existence of that relation should be made by an officer having a limited territorial jurisdiction. The Act provided for the recognition of the certificate, and the Constitution had declared that "full faith and credit shall be given in every other State to the acts, records, and judicial proceedings of every other State, and that Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."" The validity, in other intervening States, of a custody over the fugitive under the decision of a judicial officer of the State in which he may have been found, is not inconsistent with the idea that the decision was made in the exercise of power derived from the State.

§884. Again, it may be urged in objection, that while the national law may be applied by the concurrent judicial power of the State, yet it can be so applied only in remedial forms which are sanctioned by the common-law usage of the State; that this was herein before admitted, when it was argued that the claim of the owner might be enforced by the State courts independently of any legislation;' that new remedial forms, created by a law of Congress, cannot thus be applied by the judicial power of the State, even though the substantive rights and obligations intended to be guarded by that law might be maintained by that judicial power applying forms known to the common law of the State.

It will be seen that this giving credit and effect to the judgment of a tribunal of the forum having actual jurisdiction of the parties is very different from that giving operation and effect to the criminal law of the State from which a fugitive from justice had escaped, which was involved in Judge Taney's justification of the legislation of Congress in Kentucky v. Dennison, ante, §§ 818-820.

2

Ante, §§ 827, 828.

Even if no authorities can be cited in support of such a distinction, it seems to be theoretically consistent.

§ 885. But it does not appear that the judges in Prigg's case noticed any such objection as disqualifying these State magistrates of whom they spoke from acting in virtue of the concurrent judicial power of the State. And, in the present inquiry, the point is not so much whether the action of a State judicial officer can consistently be justified as an exercise of power derived from the State, as it is whether the courts in the Pennsylvania and New York cases and the Supreme Court in Prigg's case regarded the action of the State magistrates of whom they spoke as the exercise of power derived from the State.

It does not appear that the question of the source of the power exercised by the State magistrate was examined in the Pennsylvania or in the New York case.

In the language of several of the justices, there are indications that in Prigg's case reference was had to the exercise of the judicial function by the "State magistrates." Judge McLean said, 16 Peters, 664:-"Congress can no more regulate the jurisdiction of the State tribunals than a State can define the judicial power of the United States" (ante, p. 635), and, ib., 667, "The claimant is required to take him before a judicial officer of the State; and it is before such officer his claim is to be made;" and, ib., 671, "A remedy sanctioned by judicial authority."

1

See pages 667-671, cited in full, ante, pp. 556–558. The importance of Mr. Meredith's argument in the interpretation of the Opinion delivered by Judge Story has been noticed, ante, p. 468, n. 3. Mr. Meredith, 16 Peters, 568, repeatedly spoke of the action of the judges and State magistrates as an exercise of judicial power. "The judiciary act of 1789 does not cover the whole judicial power under the Constitution. Subsequent legislation has supplied many omissions in that act, of which the act of 1793 is an instance, vesting in the Circuit and District Courts that portion of the judicial power which is embraced by the second and third sections of the fourth article of the Constitution.

"It is true that the act does not prescribe a judicial proceeding according to the forms of the common law. But, in the same case of Martin v. Hunter, this Court has said that, in vesting the judicial power, Congress may parcel it out in any mode and form in which it is capable of being exercised. The act contemplates a summary proceeding, but still of a judicial character. It provides for the preliminary examination of a fact, for the purpose of authorizing a delivery and removal to the jurisdiction most proper for the final adjudication of that fact; to the State on the laws of which the claim to service depends. But this examination is judicial in its character. The parties, claimant and alleged fugitives,—are

Judge McLean, indeed, held that the power in respect to fugitives from justice and from labor "is admitted or proved to be exclusively in the federal Government." But, admitting that the power of legislation on this subject is exclusive in the federal Government, still, on general principles, the judicial power of the several States may be concurrently exercised in applying the national law to persons within the territorial jurisdiction of the State, unless Congress has chosen to declare the national judicial power exclusive in the application of the law. This point has been fully considered in a former chapter of this work.'

It would seem that a judge cannot refuse to exercise his judicial power in a case which properly may have come within his jurisdiction. If, in Prigg's case, the court held that these "State magistrates " might refuse to act as authorized by the law of Congress,' it might be inferred that they could not have regarded their action in these instances as an exercise of judicial power, but must have distinguished it as some special power, or one which was "personal" and not "official."

But if they took this view of the power in the hands of these "State magistrates," they must have also regarded it as a special power, a personal and not official power, in the hands of the judges of the United States District and Circuit Courts, and have held that these judges were likewise not bound to act unless they should choose. But in none of the Opinions is

there any intimation to this effect.

Besides, it has often been held that State judges are not bound to exercise the concurrent judicial power of the State to apply a law of Congress. The judges, in Prigg's case, who held that the State magistrates were not bound to act under

brought within the jurisdiction; the case is to be heard and decided upon proof; the certificate is not to be granted, unless the judge shall be satisfied upon evidence that the party is a fugitive owing service to the claimant. He acts, therefore, in a judicial character, and exercises judicial functions."

In the words italicised there is a grave misstatement of the nature of the proceeding; but it only makes more apparent the judicial quality of the proceeding when viewed in its true light. See post.

1 Ante, §§ 456, 457.

2 See Story, Taney, and McLean, as quoted ante, in § 870.

See opinions in the notes to 2 Dallas, 410.

* See Judge Woodbury in The British Prisoners, 1 Wood. and Minot, 170, and cases there noted, and ante, Vol. I., p. 496, note 2.

the law of 1793, may have based their opinion on that doctrine.

Some of the justices, in Prigg's case, referred to general acquiescence in the constitutionality of the law relating to fugitives from justice as an argument in favor of the power of Congress to legislate in respect to fugitives from labor. But no one of them argued that a recognition of the action of the Governors of States, following the law of Congress, necessarily involved the recognition of the action of these State magistrates. Their recognition of the action of the Governors of States (who certainly could not act in virtue of concurrent judicial power) does not imply that they did not regard the action of these State magistrates as an exercise of that power. They may have regarded the Governors as using the executive power of the State, and the State magistrates as using the judicial power of the State.'

On the whole, it appears that while the constitutionality of the Act in "conferring" power on "State magistrates" was not, in the opinion of the court, "free from reasonable doubt and difficulty," the majority of the judges intended to justify the custody and removal from the State of a fugitive from labor under the certificate of a State magistrate only when such State magistrate should be a judge holding the ordinary judicial power of his own State; and the Chief Justice may have intended to sanction only the arrest under the authority of the State magistrate, not the final hearing and giving a certificate.

§ 886. It appears then that, in the decisions under the law of 1793, the action of public officers therein mentioned, in making the delivery on claim as thereby contemplated, is justified only so far as such officers may be capable of acting in virtue either of the judicial power of the United States, or the concurrent judicial power of the State.

The question of the quality of the power exercised under the Act of 1793 will not here be examined by reasoning independently of these decisions, because the same question arises under the Act of 1850 in reference to the action of the commissioners, and because the decisions under that law which are