and it is a question whether, under the State Constitutions, that power does not belong to the executive department independently of any legislation. Unless it is to be held that the Act of Congress puts an end to the concurrent legislative (juridical) power of the State on the subject,' there seems no reason for holding that the Governors do not exercise State power in making the delivery. That power would, of course, have no effect beyond the limits of the State. The second section of the Act of Congress makes the custody of the alleged criminal, in the hands of the agent of the claiming State, lawful, if not so independently, under the Constitution, in every other State through which it may be necessary that

he should pass.

But even if this statute was necessary to give legality to that custody beyond the limits of the surrendering State, still it does not follow that the power originally exercised by the Governor, in ordering the delivery, was not power politically derived from that State.

§ 851. But whatever may be the existing authority for the doctrine that the action of the Governors of States, on delivering up a fugitive from justice on demand, does not involve an exercise of the judicial power of the United States, still the correctness of that doctrine may be independently examined.

It has already been argued here that the only power which Congress has to legislate in reference to this provision of the Constitution is the power to carry into execution the judicial power of the United States in cases arising under it, according to the fourth construction. If, then, the Governors of States, acting in the manner contemplated in the statute, derive their power from the Act of Congress, and if they do carry into effect the whole purpose of the provision, which seems unquestionable, the conclusion appears inevitable that they have been invested with the judicial power of the United States. The action of a Governor in allowing or refusing the demand

Ante, §§ 831, 832.

In the Opinion by Taney, Ch. J., in Kentucky v. Dennison, the execution of the provision is attributed to the combined exercise of the judiciary of the State from which the person charged fled, and the Governor of the State in which he is found. But this view can be sustained only by attributing legal operation to the criminal law of the demanding State in the other State. Ante, §§ 818-820.

made upon him under the Act, seems to cover the whole "case" supposed to have been the subject of the judicial power anteriorly to the legislation of Congress. It cannot be taken to be ancillary or ministerial in respect to the decision of any "case" which arises under the provision. If, by the action of the State Executive, the "case" which was within the judicial power has been completely disposed of, that action is very different from that of persons exercising a ministerial office ancillary to the power held by the judges of courts.'

But if, as is commonly held, Congress has legislated in virtue of authority to carry into execution a power vested in the Government as a whole, under the second or under one adaptation of the third construction of the constitutional provision, there is no such necessary conclusion that the power exercised under the Act is the judicial power. The question, whether it is so or not, must then be determined from the essential nature of the action, without reference to the basis of legislation.

§ 852. In support of the doctrine that the action of the Governors of States contemplated in the Act of 1793 is not an exercise of that kind of power which in the public law of the United States and of the several States is called "the judicial power," it seems very natural to argue that such action is not distinguishable from that which takes place in surrendering persons claimed by foreign governments as fugitive criminals, either under treaty or under customary international law, and that it has been always held that such surrender falls within the executive and not within the judicial function. It will probably be found that in every American case of extradition to foreign governments, some inquiry as to its propriety in the particular instance has been made by some person officially connected with the judiciary.

In Sims' case, IV. Monthly L. R., 6-8, Mr. Commissioner Curtis seems to have based the legislation of Congress on the theory of carrying into execution the judicial power of the United States. But he avoids the conclusion in the text by holding that the action of the Executive in the one case, and of commissioners in the other, is ministerial or ancillary to the judicial power which was to be carried into execution in these cases. But Mr. Curtis has not shown when or where this judicial power is carried into execution, if not by the Executive and the commissioner.

* Ante, § 791.

The 27th article of the treaty with Great Britain, of 1794 (VIII. St. U. S. 129), provided for extradition on such evidence of criminality as, according to the

853. The argument of Mr. Marshall, afterwards the Chief Justice, in the House of Representatives, Feb. 20, 1800, on resolutions condemning the President's action in Nash's or Robbins' case, is regarded as the leading authority for the doctrine that this judicial inquiry is not an exercise of the coordinate judicial power or function, and that it properly takes place as subordinate and ancillary to the executive function.'

laws of the place where the fugitive or person charged shall be found, would justify his apprehension and commitment for trial if the offence had been there committed. No provision is made for the action of judicial officers. The 10th article of the treaty with Great Britain, of 1842 (ibid. 572), provides for issuing warrants "by the respective judges and other magistrates of the two governments " "to the end that the evidence of criminality may be heard and considered" before them; and "if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive." The treaty with France, 1843 (ibid. 580), provides that the surrender on the part of the Government of the United States "shall be made only by the authority of the Executive thereof;" and this only when the fact of the commission of the crime shall be so established as that the laws of the country in which the fugitive or the person so accused shall be found would justify his or her apprehension and commitment for trial if the crime had been there committed." No provision is made for the action of judges or magistrates. The Act of 1848, entitled An Act for giving effect to certain treaty stipulations, &c. (IX. Stat. U. S. 302), vested power, jurisdiction, and authority, in the judges of the United States courts, and in any commissioner authorized for the purpose by those courts, and in the judges of the State courts to issue warrants on complaint, to hear the evidence of criminality, and if, on such hearing, the evidence should be deemed sufficient to sustain the charge under the treaty, to certify the same, with the testimony, to the Secretary of State, who was authorized to issue a warrant of extradition. On the decision of the Supreme Court in Metzger's case (1846), 5 How. 176, this Act must be considered as declaratory of pre-existing law. To the same effect is Woodbury, J., in The British Prisoners (1845), 1 Woodbury and Minot, 72. Contra is Judge Edmonds in Metzger's case, 1 Barbour, 257, and according to the note, ib. 258, Judge Story was of the same opinion.

A full history of this case and the debates in the House is given in 1 Hall's Journ, of Jur. 18, and Wheaton's State Trials, 393. Marshall's speech is also in 5 Wheaton, App. I., and with the report of the case in Bee's Rep. 266. President Adams had requested Judge Bee, U. S. Dist., to arrest Robbins, " and to inquire whether or not he was guilty of the offence charged against him." The Judge, having satisfied himself of his guilt, reported to the President, and afterwards, by his direction, delivered the prisoner to the agent of the British Government. Mr. Marshall argued that the case was one for executive and not judicial decision. He admitted the division of powers stated by the supporters of the resolutions, but objected to the declaration contained in them, that the judicial power extends to all questions arising under the Constitution, treaties, and laws of the United States. The difference between the Constitution and the resolutions was material and apparent. A case in law or equity was a term well understood and of limited signification. It was a controversy between parties which had taken a shape for judicial decision." If the judicial power, he argued, were thus extended to every question, instead of "all cases arising," &c., the judiciary would encroach on the other functions. By extending the judicial power to all cases in law and equity, the Constitution had never been understood to confer on that department

Though this argument may have quieted the House, it seems to have failed at the time to satisfy public opinion of the propriety of the President's course.'

§ 854. The doctrine that the power exercised by the judicial officer is simply ministerial and ancillary to the executive function, seems also to be affirmed by Tilghman, J., in Commonwealth v. Deacon (Short's case), 10 Serg. & Rawle, 134, and by Woodbury, J., in The British Prisoners, 2 Woodbury and Minot, 66. Holmes v. Jennison, 14 Peters, 540, is by some authorities understood as affirming the necessity of coordinate judicial action; see Lewis' Cr. Law, 263; Edmonds, J., in 1 Barbour, 265.

§ 855. In the year 1854, Thomas Kaine, on the application of the British consul, and without any direction from the executive department of the national Government, was committed to custody by "a commissioner appointed by the Circuit Court of the United States," after a hearing before him, to abide the order of the President of the United States in the premises.

The validity of this commitment was affirmed by Judge

any political power whatever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into court who can be reached by its process and bound by its power, whose rights admit of ultimate decision by a tribunal to which they are bound. A case in law or equity proper for judicial decision may arise under a treaty, when the rights of individuals, acquired or secured by a treaty, are to be asserted or defended in court,-as under the fourth or sixth article of the treaty of peace with Great Britain, or under those articles of our late treaties with France, Prussia, and other nations, which secure to the subjects of those nations their property within the United States, or as would be an article which, instead of stipulating to deliver up an offender, should stipulate his punishment, provided the case was punishable by the laws and in the courts of the United States. But the judicial power cannot extend to political compacts, as the establishment of the boundary line between the American and British dominions; the case of the delivery of a murderer under the 27th article of our present treaty with Britain.” The main argument which then follows is that the judicial power cannot be exercised because the actual delivery or extradition is not within the capacity of the courts, but is a political and executive act.

'Catron, J., in Kaine's case, 14 How. 111. The Act of Virginia, 21 Jan., 1801, R. C. of 1819, p. 589, c. 161. 1 Robinson's Practice, p. 8. And the history of the controversy in 1 Hall's Journ. 18, and Wharton's State Trials, 393. But Judge Story has said, somewhere, that it " put the question at rest forever:"-quoted by Edmonds, J., in Metzger's case, 1 Barbour, 265.

The commissioner being appointed under the Act of February 20, 1812, An Act for the more convenient taking of affidavits and bail in civil causes depending in the courts of the United States, II. Št. U. S. 679, and the supplementary Acts, Mar. 1, 1817, III. Ib., 350; Aug. 23, 1842, sec. 1, V. Ib. 516; and the rule of the Circuit Court of 1851, see 14 How. 142, 143.

Betts, who, on habeas corpus before him as Judge of the Circuit Court, remanded the prisoner. When return was made to Mr. Justice Nelson, as Judge of the Supreme Court at chambers, on another habeas corpus issued by him, he directed that it should be heard at the ensuing term, before the full bench. Upon this proceeding, as improper, no jurisdiction was taken by the court; but petition was made to the court for a writ of habeas corpus and certiorari, to bring up the proceedings before Judge Betts, in the Circuit Court, in exercise of its appellate power. (In re Kaine, 14 Howard, 118, 130.)

In the present inquiry it is material to know whether the court regarded the prisoner as then in custody under the original commitment by the commissioner, or under the decision of Judge Betts. A conclusion respecting the quality of the power exercised in declaring the prisoner within the terms of the treaty, could be drawn from the decision of the court only if the legality of the custody was based upon the action of the commissioner.'

Mr. Justice Curtis, who was the only member of the court who distinctly affirmed the prisoner to be in custody under the commissioner's warrant, in denying the motion, held that it could be granted, if at all, only in the exercise of the appellate and revisory power of the court, and that that power could not be here exerted because the acts of a commissioner cannot be the exercise of the judicial power. His language is (14 How. 119, 120):-"That no such control, by means of an appeal, writ of error, or other proceeding, can be exercised by this court over a commissioner acting under the authority of an Act of Congress, or under color of such an authority; and that this court has no power in any way to revise his proceedings, I consider equally clear. In Ex parte Metzger, it was determined that a writ of habeas corpus could not be allowed to examine a commitment by a district judge at chambers un

A like inference might be drawn from a decision affirming the validity of a custody under a commitment by one of the "judges of the State Courts," mentioned in the Act of 1848, if it were equally necessary to suppose that in making it he had exercised power politically received from the United States. It is for the present assumed that the action of a State judge should be considered as an exercise of the concurrent judicial power of the State. In the British Prisoners, 1 Wood, and Minot, 66, it was held by Woodbury, J., that his action is ministerial.