By combining this doctrine with the doctrine (if it is to be admitted) that a right given to private persons by the Constitution, operating as private law, may be guarded by the remedial legislation of Congress, it would easily follow that Congress has the power to enact any law suitable for the recovery of fugitive slaves;' and if it is also conceded that Congress may, by penal legislation, protect rights given by the Constitution, it would appear that Congress may go far towards re-enacting the various provisions of the slave codes of the slaveholding States, making a law of national extent, operating wherever a fugitive slave might be found.

But according to the view herein maintained, the provision only gives the person to whom the service is due a right to have the fugitive delivered up to him on claim made before public authority. There is no right, then, to be protected, except as claim is made. Congress cannot organize a system for the return of fugitives without regard to claim made by their masters.

§ 955. In estimating the weight of judicial authority on the several questions considered in this chapter, it is to be remembered that the Supreme Court of the United States, in Ableman v. Booth (ante, p. 523), affirmed the Act of Congress to be, "in all its provisions, fully authorized by the Constitution of the United States."

§ 956. In answering the principal objections taken against the law of 1850, the argument from a supposed long acquiescence, on the part of the people of the non-slaveholding

'The argument-the right of the claimant is given by national law, therefore it may be enforced by the legislation of Congress-is not uncommon, though it is not the received argument. It was, in fact, Mr. Clay's. See ante, p. 532. 2 Ante, § 816.

The opinion of Mr. Webster, as against the existence of power in Congress to legislate on the subject, has been cited ante, p. 533. The bill to amend the law of 1793, introduced by Mr. Webster in the Senate, June 3, 1850, provided for a trial by jury in the State in which the fugitive should be found. See 5 Webster's W. 372. But, in his speech to the Young Men of Albany, May 28, 1851, 3 Webster's W. 596, he maintained the validity of the law of 1850, though entirely on the ground of authority:-"Everywhere, on all occasions, and by all judges, it has been held to be, and pronounced to be, a constitutional law. All judicial opinions are in favor of this law. You cannot find a man in the profession in New York, whose income reaches thirty pounds a year, who will stake his professional reputation on an opinion against it. If he does, his reputation is not worth the thirty pounds."

States, with the law of 1793, as distinguished from judicial authority strictly so called, has often been insisted on. In estimating the force of this argument, it should be remembered that, when that law was enacted, slavery was lawful in almost every one of the States of the Union, and that in every such State delivery on claim might have been under the authority of the local or State law, independently of the authority of the Act of Congress, but substantially in the form authorized by that Act. This local law for delivery of fugitives might have been judicially supposed to continue as customary law, even when in such a State the local slavery had ceased; and, in many of the cases in which a fugitive has been delivered on claim before a State judge or magistrate, the authority exercised may have been deemed to proceed from the State fulfilling a duty arising under the provision, according to the first construction.

If this argument, from long acquiescence, is advanced to support the power of Congress to legislate on the subject, it should be remembered that, as the powers of the Government are given by a written Constitution, no department can acquire power by prescription: for the Constitution is continuously promulgated, that is, at any one time it derives its authority from the then existing people of the United States.'

§ 957. The argument, for the validity of the Acts of Congress of 1793 and 1850, which lies in asserting the necessity of such legislation' may apply to any of their provisions. But it has been principally urged in supporting the action of the State magistrates and United States commissioners, and the summary proceeding without jury.

It is impossible that any argument, properly so called, in favor of the constitutionality of this legislation, can be founded on any supposed degree of necessity. It is, essentially, the justification of an admitted violation of the Constitution,

Thus, in Pennsylvania, at the date of Respublica v. Richards, 2 Dallas, 224, and of Johnson v. Tompkins, 1 Baldwin's C. C. 571, the claimant could have, under the law of the State, all the remedy that he could have under the Act of Congress. See ante, pp. 70, 441. 'Ante, pp. 685, 729.

2 See Judge Sutliff, 9 Oh. 260.

founded on the assertion of the unsuitableness of that instrument to certain ends arbitrarily assumed.'

The argument can be noticed here only by attempting to show how an Act might have been framed which should have satisfied the other requirements of the Constitution, while it also carried out the purposes of the provision for delivery of fugitives from labor.'

§ 958. And, first, as to the necessity of leaving the entire determination of the claim in the hands of a State magistrate' or a United States commissioner.

Admitting that the judges of the national courts were too few in number to bring the judicial power of the United States to bear promptly and efficiently on these cases, it is still not easy to see why the magistrates and commissioners might not have been empowered to act in these cases as the commissioners are empowered in the execution of the penal laws of the United States. They might have been authorized to commit, arrest, detain, or keep the person claimed as a fugitive from labor, who, then being in the custody of the United States and not in that of the claimant individually, should afterwards have been brought before some judicial officer capable of deciding the case in virtue of the judicial power of the United States, or of the concurrent judicial power of some State; where the State might have consented to its exercise.

It may be urged, in reply, that this would only have facilitated the arrest and detention of the supposed fugitive, as the number of persons capable of deciding on the validity of the

1 When, in this argument, the legislation is asserted to be necessary, the word has an extent given it beyond that of the words "necessary and proper," in the last clause of the 8th section of the 1st Article. See ante, p. 603.

2

Judge Peck, who, in Ex parte Bushnell, &c., maintained the validity of the law, said, 9 Oh. 216:—“ It seems, to us, that the law in question is unnecessarily severe in its sanctions, and should have been conceived in a milder and more humane spirit. More consideration ought to have been shown to the alleged fugitive in the ascertainment of his rights before his delivery to the claimant, and more respect evinced to the scruples, conscientious or otherwise, of the citizens of the State where he might be seized. It is not a question, whether the law is just and expedient, but whether it is constitutional. Not whether an admitted right to legislate has been abused or improperly exercised, but whether such power exists.” * Meaning some magistrate of a court of special jurisdiction, not capable of exercising the concurrent judicial power of the State. Ante, p. 652.

That Judge Taney conceived of the State magistrates as acting thus under the law of 1793, see ante, 874.

claim would not have been increased, and that the trouble and expense of removing the supposed fugitive from the locality of the magistrate or commissioner, to that of the judge, would have rendered the remedy nugatory.

But since, in the event of such fugitive's being finally delivered up on claim, a removal from the State in which he is found and taken is contemplated, it might be supposed that a person having authority judicially to determine the delivery on claim might be found either in the State in which the arrest takes place, or in that in which he is said to have been held to service, or in some intermediate State. The question here occurs whether it is necessary, under the provision, when the delivery to the person to whom the service or labor is due is to be made by national authority, that it should be made in the State in which the supposed fugitive is arrested?

959. This question may be pursued in connection with its parallel, which arises under the second inquiry-as to the necessity of summary proceedings, without a jury.

The necessity of summary proceedings on these claims is generally based on the assumption that, in the non-slaveholding States, juries, notwithstanding the evidence, would never or but seldom find that the person claimed had escaped from service to which he was held by the laws of another State,being therein actuated either by a feeling of hostility towards the slaveholding States, or by opinions respecting the ethical character of those laws, leading them to regard the provision in the Constitution as void in foro conscientiæ.

But, supposing this to be true, and that the fact may be considered by Congress in carrying the provision into effect, it does not appear but that, when the claim is to be determined by the judicial power of the United States, a trial by jury might be had in some locality other than the State in which the supposed fugitive is arrested.

If the arrest were made under the authority of the State in which the fugitive is found (proposing either to fulfill its obligations under the provision, according to the first construction, or to carry into effect the national municipal private law by exercising its concurrent judicial power), the judicial

determination of the claim, either with or without a jury, could take place only in that State. But, if the arrest is made under national authority in reference to a judicial determination of the claim by the same authority, there seems to be no such necessity that the national judicial power determining the claim should finally decide it and make the delivery in the State in which the arrest was made; or that, if a jury must co-operate with a judge holding that power, such jury should be empanneled in the State where the supposed fugitive is taken.

It is commonly urged by those who uphold the State laws, commonly called Personal Liberty Bills, which prohibit the removal of a person as a fugitive, unless after determination of the claim before a jury under the State law, that the trial must be in the State in which the supposed fugitive may be found, if the guarantee of jury trial has any force whatever. This is equivalent to saying that a fugitive cannot be delivered. up on claim otherwise than by placing him in the custody of the claimant in the State in which such fugitive may be found.

But the law under which the right of the claimant and the obligation of the fugitive exist (whether it is found in the provision itself, operating as private law, or in the legislation of Congress) is national municipal law in authority and extent, though it has an international or quasi-international effect. This law will be equally enforced, whether the delivery is judicially determined in a locality under a State jurisdiction distinct from that over the locality in which the fugitive was arrested for the purpose of making the claim, or in the same locality. Under the national authority the two localities are included in one forum of jurisdiction. The locality in which the supposed fugitive is said to owe service and from which he is said to have escaped is, as to the facts to be proved, the vicinage and the natural venue.'

Against this might be suggested an argument, by analogy, from the commonlaw rule that, on suit by the villein in one county and plea by the lord that the plaintiff is his villein-regardant in another, this issue shall be tried "in the county where the plaintiff hath conceived his action, and not in the county where the manor is: and this is in favor of liberty." 1 Co. Lit., fol. 125, a. And so it must