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 fugi tives 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

1 Ante, § 848.

now to be considered are also authorities on the general question which arises under either law.

§ 887. The earliest case in which judicial opinion was expressed in regard to the constitutionality of the Act of 1850 is that of Sims, who, in April, 1851, in the city of Boston, was arrested on a warrant issued by George T. Curtis, Esq., United States commissioner, who after hearing the owner's claim, committed Sims to the custody of the United States marshal, preparatory to his removal from the State under the commissioner's certificate. Various proceedings were then had in his behalf to remove him from this custody, which are detailed in IV. Monthly Law Reporter, pp. 1-16. Of these several proceedings, there were two which elicited judicial opinion in respect to the constitutionality of the Act of 1850. The first of these was a petition of Sims, to the Supreme Judicial Court of Massachusetts, for a habeas corpus and to be discharged from the custody of the marshal.

The Opinion of the court in giving a unanimous decision' affirming the validity of the marshal's custody was delivered by the Chief Justice, the late Lemuel Shaw. As was to be expected from the great respect previously accorded to the opinions of that distinguished judge as well as to the decisions of the court-a court second to that of no other State in judicial eminence the decision has since been regarded of the highest authority, to that degree that, in the opinions of judges who in later cases have maintained the action of a commissioner in like circumstanees, it has been taken to preclude all further juristical discussion. In this Opinion, after examining certain questions of the practice in writs of habeas corpus, Judge Shaw says, 7 Cushing, 294:-"It is now argued that the whole proceeding, as it appears upon the warrant and return, is unconstitutional and void, because, although the Act of Congress of 1850 has provided for and directed this course of proceeding, yet that the statute itself is void, because Congress had no power, by the Constitution of the United States, to pass such a law and confer such an authority. The ground of argument leading to this conclusion is, that it is not competent for Congress, under the power of legislation vested in them by the

Constitution, to confer any authority, in its nature judicial, upon any persons, magistrates, or boards, other than organized courts of justice, held by judges, appointed as such, and to hold their offices during good behavior, and paid by fixed salaries; whereas the commissioners designated by the law in question do not hold their offices during good behavior, nor are they paid by fixed salaries. This is the argument."1

He then considers the occasion and nature of the constitutional provision and the purpose of the Act of Congress. From this portion of the Opinion extracts bearing on the questions of construction and of the power of Congress have been cited (ante, pp. 497-500). The residue of the Opinion relates principally to the question of the validity of the action of the United States commissioners. Judge Shaw says, on this point, 7 Cushing, 302:-"By the Act of 1793, the authority of issuing a warrant to arrest a fugitive from labor, of inquiry into the fact both of owing labor and of having escaped, and of granting a certificate, is conferred on justices of peace appointed for a term of years, and without salary, by the State government, or on the magistrates of cities and towns corporate. It is very manifest, therefore, that these powers were not deemed judicial, by the Congress of 1793, in the sense in which it is now insisted that the commissioner, before whom the petitioner has been brought, is in the exercise of judicial powers not warranted by the Constitution, because not commissioned as a judge, and holding his office during good behavior. Indeed it is difficult, by general terms, to draw a precise line of distinction between judicial powers and those not judicial. It is easy to designate the broad line, but not easy, the minute shades of difference between them. Those officers who hold courts and have civil and criminal jurisdietion, beyond doubt, exercise judicial powers. But there are, under every government, functions to be exercised, partly judicial and partly administrative, which yet require skill and experience, judgment, and even legal and judicial discrimination, which it is more difficult to classify. So under our own

The point was urged before the commissioner and before the court by the counsel, Mr. R. Rantoul, Jr. See IV. Mon. L. R. 4; 7 Cush. 287.