counties, cities, and towns corporate, mentioned in the third section, may still act as in that law is provided, if they could have so acted before 1850.

In determining the constitutionality of the Act of 1793, under the question above stated,' several cases are to be considered.

865. In Commonwealth v. Holloway (1816), 2 S. and R. 305, the keeper of the city prison returned to the habeas corpus, that the child, Eliza, was held "by virtue of a warrant of commitment issued by Samuel Badger, Esq., an associate judge of the Court of Common Pleas." The child was discharged on another ground. (Ante, p. 412.) But, on the hearing, it appeared that the mother of the child had been apprehended in Philadelphia, "as the slave of James Corse, and delivered to him, as such, by a magistrate, after an examination of her case." There is nothing to indicate who this magistrate was. But it seems probable that the mother and child, together, had been committed by the judge of the Common Pleas. There is no mention of any dispute as to the validity of the proceeding in the case of the mother.

In Hill v. Low (1822), 4 Wash. C. C. 327 (ante, p. 439), the defendant had obstructed the plaintiff when, as claimant, he had seized or arrested the fugitive slave with the purpose, as was alleged, of taking him "before a magistrate of the said city" of Philadelphia "in order to prove before him," &c. But it does not appear that an application was actually made to any magistrate or judge, and no certificate had been granted, and there is nothing in the Opinion delivered by the judge of the United States Circuit Court which bears on the question under consideration."

In Worthington v. Preston (1824), 4 Wash. C. C. 461, the

1 See the objection stated by counsel in Prigg's case, 16 Peters, 582. 2 Butler v. Hopper (1806), I Wash. 396, ante, p. 409, was not a case within the provision. In Glen v. Hodges (1812), 9 Johns. 67, ante, p. 438, the plaintiff had seized the slave without any warrant, and, it seems, was about to remove him from the State without applying to any officer of the State or of the United States, when his custody was interrupted by the act of the defendant. There is nothing in the circumstances or in the language of the court throwing any light on the question here considered.

* In Ex parte Simmons (1823), 4 Wash. C. C. 396, ante, p. 409, the application for a certificate was made to the judge of the United States Court.

action was against the goaler for the escape of a fugitive held under a certificate for removal, granted by some magistrate who is described in the report as a "State judge." There was no question of the validity of a custody under the certificate. The goaler was held not responsible, on other grounds.

§ 866. In Wright v. Deacon (1819), 3 S. and R. 62 (ante, p. 438), the detention of the slave under a certificate, granted according to the Act of Congress, by Judge Armstrong, of the Common Pleas Court of Philadelphia, was supported by the Supreme Court of the State, on motion to quash the writ de homine replegiando issued to take the slave from such custody. No question appears to have been made of the source of the authority exercised by the State magistrate.'

§ 867. In Jack v. Martin (1834), 12 Wendell, 311, the case was commenced by the issue of a writ of habeas corpus by the Recorder of the city of New York, as provided by the State law of 1828; and the Recorder had, on hearing the return, given a certificate as provided by that law. A writ of replevin, as allowed by the same statute, was then issued from the Superior Court of the city of New York, and the defendant, Martin, put in avowries, relying on the certificate given by the Recorder, and also on the allegation that the plaintiff, Jack, "was, and still is, her slave." To these avowries the plaintiff put in several pleas, to some of which the defendant

In Commonwealth v. Griffith (1823), 2 Pick. 11, ante, p. 440, the question was of the right of the claimant without a warrant to seize the alleged slave for the purpose, as must be supposed, of taking him before an officer authorized by the Act to give a certificate. An application had previously been made to a judge of the United States District Court, who had decided that a warrant to seize, for that purpose, was not necessary. It may be inferred that, if any application for the certificate was contemplated, it was to have been made to the same tribunal. The case, therefore, is no authority in the present inquiry.

The case, Fanny v. Montgomery (1828), 1 Breese, Ill. 188, was trespass. The plea was a justification under a justice's warrant, under the law of 1793. The plea was held bad for deficiency in certain allegations, but the court did not pass on the question of the force of the warrant. Judge Lockwood:-"I have not deemed it necessary, in making up an opinion in this cause, to give an opinion on the question how far a certificate which is good prima facie can be inquired into. Whether such a certificate would be final and conclusive, does not arise on this plea. We are not required, by the state of the pleadings, to go into any such inquiry; on this point, therefore, I forbear; for sufficient unto the day is the evil thereof." Unfortunately, such judicial reticence has been the exception, and not the rule, in questions of slavery.

In Johnson v. Tompkins (1833), 1 Bald. 571, ante, 441, the owner had attempted to remove the slave without applying to any public authority. Of the Rev. Statutes. See ante, p. 57.

demurred, and to the others pleaded issuably. In the Superior Court, judgment was given, on the demurrer, for the defendant, Martin, and on this judgment writ of error was taken to the Supreme Court. The Opinion of the court was given by Judge Nelson.

From this Opinion, it appears that in the argument before this court it was alleged that the proceedings before the Recorder were in conformity with the Act of Congress. Judge Nelson, while recognizing the fact that the Recorder had intentionally followed the State law in his proceedings, held that that law was void, and yet justified the custody in which the plaintiff was held, as legal under the Act of Congress.

The question, whether the Recorder, who had begun by issuing process (for which the Act of Congress makes no provision), as provided by the State law, with the purpose of acting under that law, could be taken to have performed an action provided for by a law of Congress, was probably raised as distinctly in the Supreme Court as it was in the Court for the Correction of Errors.'

Chancellor Walworth, in the court of last resort, maintained the validity of the State law, and, consequently, must have regarded the Recorder as exercising powers derived from the State. The Chancellor maintained the power of Congress to legislate only so far as it might be employed in vesting the judicial power of the United States. But at the same time said, 14 Wend. 527 (ante, p. 451, n.): "The Act of February,

1 See the reporter's note, 12 Wend. 314. The plaintiff in error's 4th point, 14 Wend. 512: An officer of the State of New York can only take such jurisdiction as our statute allows; and the defendant, by applying to a State magistrate for the remedy given by our law, has consented to be governed by the same throughout." Judge Nelson, 12 Wend. 815:-"The case under consideration is supposed to involve the constitutionality of this law of Congress [of 1793], and, in result, that of this State, which provides for the arrest of fugitive slaves in a manner in some respects different from the law of Congress. * This replevin suit is under the provision of the State law. The defendant, in the Superior Court, set up in defence, that the plaintiff was her slave, and acknowledged the taking, by virtue of proceedings alleged to be in conformity to the Act of Congress." It does not ap pear from the pleadings, as reported, that this was alleged in the Superior Court of the city of New York, where the replevin suit was brought. On page 316, Judge Nelson said: "I assume, for the present, that the proceedings before the Recorder were substantially in conformity to the Act of Congress, and may be sustained thereby if it is valid." On p. 325:-"That the proceedings before the magistrate were in form under the law of the State which required the issuing of a writ of habeas corpus, I apprehend cannot materially affect this case."

1793, conferring ministerial powers upon the State magistrates, and regulating the exercise of the powers of the State executive, is certainly not a law to carry into effect the judicial power of the United States, which power cannot be vested in State officers.1

The Court for the Correction of Errors decided the case in favor of the claimant without reference to the constitutionality of the law of Congress, and, it would seem, without reference to the validity of the State law, and simply on the ground that by the pleadings the plaintiff had admitted that he was the slave of the defendant. 14 Wend. 507.

If, then, under the decision of the Supreme Court, or of the Court for the Correction of Errors, the plaintiff was regarded as in custody under the action of any public authority whatever, it must have been held that he was in custody under the certificate given by the Recorder as one of the State magistrates mentioned in the Act of Congress of 1793, and in conformity to the provisions of that statute."

But, assuming this to have been held, the source of the power exercised by the Recorder in such case does not appear to have been here inquired into any more than in the case of Wright v. Deacon. And it will be noticed that these two

'Here the Chancellor appears to determine the quality of the power by the official capacity or incapacity of the person who is to use it. The Judiciary Committee of Mass. Ho. of Rep. (ante, p. 453, n.), 17 Am. Jurist, 97, say,-"The Committee after a full investigation of the question believe that this part of the law is unauthorized and void. It is a well settled principle that Congress cannot confer any part of the judicial power of the United States on State magistrates or officers." The Committee was more logical than the Chancellor in the dictum, above quoted, which seems to be the germinal authority that the delivering up a fugitive from labor, on claim, as provided by the two Acts of Congress, is a ministerial act.

2 As the case stood under the State law, the only question before the court was that raised by the demurrer-whether the claimant, being a resident of the State of New York at the time, could, under the provision, claim the negro as owing service and labor in Louisiana. Judgment being given on this demurrer, the issues of fact in the Superior Court were to be decided by a jury. (14 Wend. 513.) There was nothing in the proceedings which could establish any connection between the custody in which the negro was held and the Act of Congress. Under Judge Nelson's decision disallowing the operation of the State law, that custody had no support either from the law of the State or the Act of Congress, and could, in fact, be justified only on the doctrine (afterwards proclaimed in Prigg's case, where its origin was ascribed to this Opinion of Judge Nelson, ante, p. 554, n. 1) of seizure and removal without reference to any public inquiry. Much in the Opinion which at first seems to justify that doctrine (12 Wend. 316, 325, 326) may have been intended only to affirm a right to seize the fugitive for the purpose of making the claim under the Act of Congress.

cases are the only ones in the series in which the custody of a fugitive slave, under a certificate granted by a State officer, has actually been sustained by a judicial decision.'

§ 868. In Prigg's case (1842), 16 Peters, 539, the negro claimed had been arrested on a warrant issued by "a justice of the peace in and for the county of York," who, however, when such negro had been brought before him by the plaintiff for the purpose of procuring the certificate provided for by the Act of Congress, refused to take any farther action in the matter. The plaintiff had thereupon forcibly removed the negro from the limits of the State.

The decision of the Supreme Court of the United States, therefore, could not have confirmed any actual proceeding of any person claiming official authority to carry out the provi sions of the statute. But Judge Story, delivering the Opinion of the court, thought proper to examine the constitutionality of the law of Congress "in all its leading provisions," although beyond all controversy, such an inquiry was not essential to the decision of the case.

But on the particular question, whether certain persons who, in the Opinion, are called State magistrates, may act as provided in the statute, Judge Story expressly said that it was "not free from reasonable doubt and difficulty." The brief portion of the Opinion which relates to this point is on 16 Peters, 622; see ante, p. 474.

869. Judge Wayne began by saying, 16 Peters, 636:"I concur altogether in the Opinion of the court as it has been given by my brother Story. In that Opinion it is decided," &c., and then states seven points as decided, in none of which is the question of the power of these State magistrates touched upon. The residue of Judge Wayne's Opinion is exclusively directed to the point, that the power of Congress to legislate is exclusive of all legislative action on the part of the States.*

'In Helmsley's case (1836), ante, pp. 64, 453, the prisoner had been arrested on a warrant issued by Judge Haywood, of the county of Burlington, but in the case he is supposed to have acted under the law of the State of New Jersey.

2 He had made the writ returnable before himself; 16 Peters, 556. The Act of Congress had not provided for any such writ. By sec. 3 of the State law of 1825-6, justices of the peace might issue a warrant in these cases, returnable before a judge of a court therein designated; but, by sec. 9, they were forbidden to take jurisdiction under the law of Congress. See ante, p. 71.

3

Ante, pp. 456, 491.

'See the citation, ante, p. 481.