effect on actual parties in some case before the court. The juristical dissertations of the members of that high tribunal, on points not actually before them, command the profoundest respect of the profession and the public; and on points of great political importance, as shown in notable instances, they have been urged as controlling authority. But it has not been customary for other courts to admit a general assertion of the constitutionality of an Act as conclusive on all possible points in which the validity of the law may be questioned, when they have not been in issue before the court in a case.

c. If the view of the bearing of the opinions delivered in Prigg's case, which was presented in another chapter, is correct, the majority of the court justified the action of State magistrates only so far as it was an exercise of the concurrent judicial power of the State.

Now, we have the authority of Judge Shaw in Sims' case, and of the many judges who have followed his decision, that the action of the commissioners involves an exercise of power not distinguishable in quality from that which, under the law of 1793, was exercised by the judges of United States courts and the State magistrates whose action was approved in Prigg's case and the earlier cases in the State courts. Admitting this, it follows that Prigg's case is authority for saying that, in performing the action required of them, the commissioners will exercise the judicial power of the United States.

d. If there is any parallel between the delivery of a fugitive slave under this provision and the extradition of criminals under the other, there is some authority for holding that it indicates the judicial character of the commissioner's act of judgment.' We have the opinion of Kent that the act of judgment now performed by the Governors of the States, should, if performed by any one in virtue of power derived from the United States, be performed as a part of the judicial function.*

§ 911. Secondly; it is to be inquired, independently of any judicial authority on this point, what may be known of the power exercised by the commissioners?

1

Ante, SS 851-858.

'Ante, § 847, and note.

a. And, first: how far may the nature of this power be known from the basis assumed for the legislation of Congress?

It was concluded, in the twenty-seventh chapter, that that legislation can only be justified as it may carry into effect a power belonging to the judicial department of the Government, a part of the judicial power of the United States in a case arising under the Constitution by giving the provision the fourth construction.

Moreover, if the theory adopted by Judge Story in Prigg's case is to be adopted, the legislation of Congress is equally to be justified as carrying into effect a power belonging to the judicial department of the Government, a part of the judicial power of the United States in a case arising under the Constitution by giving to the provision the third construction.

But if, under either theory, the commissioner's act of judg ment is adequate to the whole object of the provision, it disposes of all that was involved in the supposed "case arising under the Constitution;" and the conclusion is inevitable that in his action he has dispensed that power which, in the argument, was before supposed to be the judicial power of the United States.

Now, under either theory, the object of the provision is to cause the fugitive from labor to be delivered up to the custody of the person to whom his service is due by the law of the State from which he escaped.

It may be that this object could be answered by delivering up the fugitive in some State other than that in which he may have been found.

But it cannot be doubted that the action of judges and "State magistrates," under the law of 1793, was always taken to result in the accomplishment of the object of the provision whenever the certificate was granted which allowed his being removed. Judge Tilghman said, in Wright v. Deacon, 5 S. & R., p. 64, "that the effect of the action of the judge or magistrate was to place the slave just in the situation he stood before he fled." The provision itself could not have required more than this. It has repeatedly been said, in justifying the action of the commissioners under the law of 1850, that their action is in no

VOL. II.-44

respect distinguishable from that of the judges, &c., acting under the law of 1793. It is matter of authority, therefore, that, if these are "cases arising under" the constitutional provision, and so within the judicial power of the United States, they have been completely met by the action of commissioners under the law of 1850; that the reciprocal rights and duties which were to be maintained and enforced in the "cases arising under" this provision have been maintained and enforced by the commissioners; so that they must be held, in the end, to have accomplished that object which, in the outset, was supposed to have been delegated by the Constitution to the judicial power.

If it is said that there is no sufficient authority for the fourth construction, and that Judge Story's express recognition of a case within the judicial power was a casual inadvertency, irreconcilable with the residue of his Opinion, or with the Opinions of his associates; and that, under the third construction, adopted by him, the Government is one of the two parties on whom the provision acts as a rule (the claimant being the other); that the Congress has appointed the commissioner to be the agent of the Government for settling this claim made upon it, without any reference to judicial action, as a party may always settle his controversies out of court in any way he thinks fit,-it is then to be inquired whether, under the law passed by Congress, a case does not arise within the judicial power of the United States.

So, if the only other theory for the legislative power of Congress be adopted-that founded on the second construction -according to which Congress legislates to enforce a duty of the State correlative to the claimant's right, the question occurs, whether a case within the judicial power of the United States has not arisen under a law of the United States, or "under the Constitution and laws of the United States."

If, under either of these two constructions, the second or the third, the claimant's right is imperfect, and requires some legislation, either of the national Government or of the States, to make it a legal right,' yet it seems the legislation of Con

1

1 Ante, § 749, in Story's Opinion, from 16 Peters, 614, 615.

gress produces an effect precisely like that attributed to the provision itself under the fourth construction. A legal relation is established between the claimant and the fugitive in the State into which the latter may have escaped. Neither is the Government thereafter recognized as a party (according to the third construction), nor is the State in which the fugitive is found so recognized (according to the second construction), but the law of Congress acts like private international law, operating in the State in which the fugitive is found. The effect produced is the same as if the private law of the State which is the forum of jurisdiction recognized the master's right to carry away with him his escaped slave, on establishing a claim for his person before the local public authority; and that this would be a case within the judicial power is indisputable.

If, while admitting that a case thus arises, either under the provision itself, as the foundation of the legislation, or under the Act of Congress, it be said that the commissioner does not judicially dispose of such case, but makes only such a preliminary disposal of it as must occur in view of possible judicial action thereafter, this allegation is equivalent to that made in that argument in favor of the constitutionality of the action of the commissioners, which has herein been classed as the fourth argument.'

§ 912. This argument is now to be more fully considered under the question

b. What is the character of the act of judgment, reasoning from elementary principles?

It will here be assumed that every act of judgment is judicial which is final in reference to some particular forum in which the rights and obligations affirmed or denied by that act of judgment are to be exercised." The action of the commissioner determines the rights and obligations of the claimant and the alleged slave in and for the jurisdiction of the State in which the latter is found, and in and for that alone, without reference to any other State.

1 Ante, p. 683.

Ante, § 464.

It is true that the certificate, according to sec. 6 of the Act, is to be given" with authority to such claimant, or his or her agent or attorney, to use such reasonable force or restraint as may be necessary, under the circumstances of the case, to take and remove such fugitive person back to the State or Territory whence he or she may have escaped as aforesaid." It may, however, be questioned, whether this clause in the statute has any other effect than to be a security to the claimant in case he should be obliged, in returning to his place of domicil, or should choose, in so returning, to pass through States wherein slavery is not recognized; and whether it diminishes in the slightest degree his power to place the person of the alleged fugitive in any place whatsoever where local law will sanction his introduction. It may even be questioned whether Congress has the power to make it obligatory on the claimant to carry the supposed slave back to the place of domicil.

This will depend on the construction to be given to the provision. If, by the true construction, no legal right exists in the claimant, under the provision itself, independently of legislation (as supposed in the second and third constructions), then indeed it may be that Congress, if it has the power to give existence to the right, may modify it, to a certain extent at least. But if the claimant's legal right exists under the provision itself (according to the fourth construction), it is a right to have his slave delivered up to him on claim; and in this respect it is distinguished from the right given in respect to a fugitive from justice, who, by the words of the Constitution, is to be "delivered up, to be removed to the State having jurisdiction of the crime." The Constitution, in the case of fugitives from labor, does not speak of any such transfer from jurisdiction to jurisdiction. It may be that, if this delivery can be made by the national Government, it might be made in any other part of the United States, as well as in the State in which the fugitive is found. But it would appear that, after the claim had been finally determined, Congress would have no power to limit the claimant's right by requiring him to return the fugitive to the State from which he escaped.