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.

1Ante, p. 683.

2

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.

The Acts of Congress follow the provisions on which they are founded. The rendition of the fugitive from justice to the State where he is to be tried, is spoken of in the Act of 1793. But neither in that Act nor in that of 1850 is the master required to carry back the person he may hold as his escaped bondman. It may be supposed that the power to detain the latter will continue for such time as may suffice for convenient removal. But, if the master remains voluntarily with his recaptured slave beyond that time, the constitutional guarantee must cease to operate, and the slave may become free by the law of the forum. The claim might be made and the delivery effected, under this provision, when the fugitive had been found in a State permitting slavery; and then the possession of the master would continue, by the local law of that State, so long as he should choose to remain in it. Or, whatever might be the local law of the State in which the delivery takes place, the master could remove the supposed fugitive to any other State, or any other country, and retain him in slavery therein, if the local law should permit it. The delivery to the claimant, under the provision and Acts of Congress, is in all respects like a delivery upon claim made under the local law of a jurisdiction wherein slavery is lawful, in a case in which the master's right is denied by some third party, or in one in which the supposed slave should himself deny the right. While the claimant is in itinere with the supposed slave to the State from which he came, his custody continues under the Constitution and is protected by the statute. But he is not bound to proceed thither, and this protection may not be sufficient to induce him to do so. If the fugitive is carried to some slaveholding jurisdiction, his status will be determined. by the local law thereof; this provision of the Constitution will have no effect upon it.

§ 913. It is certain that if any State magistrate, under the law of 1793, acted in virtue of the judicial power of his own State, a certificate given by him had no power beyond the limits of that State, and could not compel the claimant to return the slave to the State from which he was supposed to have escaped; his act of judgment operated in and for the

State alone, and it has always been held that the act of a judge or commissioner under the law of 1850 is not distinguishable in its operation from the act of a judge or State magistrate under the former Act.'

There are no means provided for securing this actual rendition from jurisdiction to jurisdiction independently of the will of the claimant; there is no penalty for the party holding the certificate for failing to carry it out-no officer appointed to ascertain whether it has or has not been carried out. The party holding the certificate being a private individual, there is no such presumption of public law (comity, as it may be called), which may authorize the legal presumption that the fugitive slave, like the fugitive from justice, will be transferred to the State by whose laws he is supposed to have been held to service.'

There is no case in which a certificate has been granted in which it is now possible to show, by public record, that the fugitive was actually taken back to his supposed domicil; and the effect of such a certificate as a limitation of the master's right over the person and services of the slave, while in transitu, has never been made a subject of judicial inquiry in States through which he has been carried after the certificate has been given. It would appear that the master's right under the Constitution, after the claim has been established, is to sell and dispose of the slave and of his services, and to transfer him to any jurisdiction where slavery is allowed, and that no lim

1 See in connection with this the argument in § 883. If the commissioners' certificate requires the rendition of the supposed slave to the State from which he is said to have escaped, he must be under the control of national public authority until he is so carried back. But then the same must have been the case under a State magistrate's or a judge's certificate under the law of 1793, and yet in Worthington v. Preston, 4 Wash. C. C. 461, where the keeper of the prison held the slave in custody after he had been delivered to the claimant with a certificate, it was held that the keeper was merely acting as the private agent of the master, not as the instrument of public authority.

2 It is only when the party claimant makes affidavit that he apprehends a rescue, that, by the 9th section of the Act, the officer of the United States who has the fugitive in his charge is bound "to remove him to the State from whence he fled, and there to deliver him to said claimant, his agent or attorney."

Here appears the utter fallacy of the assertion, which has sometimes been made, that the provision and legislation of Congress is based upon securing to the slaveholding States, as States, a property, or what Judge Baldwin called “political property." See ante, p. 445, note.

Ante, § 859.