done, in such a State, "without any breach of the peace or illegal violence," because the law of the State declares it to be illegal violence and a breach of the peace, and therein the provision does not restrict the local law.'

§ 818. As has already been noticed,' the Supreme Court, in Kentucky v. Dennison, cannot be supposed to base the legislation of Congress respecting fugitives from justice on the theory of carrying into execution the judicial power of the United States in a "case" arising under the provision in the Constitution for the delivery of such persons on demand. Indeed, the portion of the Opinion delivered by the Chief Justice, which vindicates the legislation of 1793 on that subject, does not correspond with any justification previously advanced for the action of Congress in reference either to this provision or that relating to fugitives from labor. Judge Taney there speaks of the legislation of 1793 in respect to fugitives from justice as founded on the power specially granted in the first section of the Fourth Article; holding that Congress had thereby (in the language of that section) prescribed the manner in which a judicial proceeding of the State from which the fugitive from justice had escaped, to which full faith and credit was to be given in the State into which he had fled, should be proved in the latter, and the effect thereof. Indeed the Chief Justice says that "without doubt," this provision respecting fugitives from justice "which requires official communications between States and the authentication of official documents, was in the minds of the framers of the Constitution, and had its influence in inducing them to give this power [the power conferred by the 1st sec. of the 4th Art.] to Congress."

This theory for the legislation of Congress corresponds better with the fourth than with any other of the constructions of these provisions which have been indicated, inasmuch as the

Under this view of the nature of the master's right under the provision, it is not necessary to inquire whether such seizure and removal will not be contrary to those amendments of the Constitution of the U. S. which are in the nature of a bill of rights. The effect of those amendments, as limiting all that may be done under color of the authority of the U. S. for carrying the provision into effect, will be considered in another place.

judicial power of the State, from whose justice the person charged has fled, is supposed to operate before the power of Congress can be brought into action. If it does so operate it must be in applying some law. If the law applied is only the law of the State in which the crime was committed, and if the judicial proceeding of that State, being proved, and having taken effect, or having received full faith and credit under the first section of the fourth Article, is sufficient for the purpose of delivering up the fugitive from justice, of what use, it may be asked, is the provision for that delivery in the second section? It would seem that the law applied could be no other than a law of national authority and extent, contained in the provision itself, acting on the fugitive as its subject, conformably with the fourth construction. But though the State courts may apply such a law in the exercise of the concurrent judicial power of the State, it is evident that this power can itself extend only to persons within the jurisdiction of the State. Besides, the return of a criminal to the State from which he had fled could have been required only by a law of national authority and extent: it was not within the original" powers of the demanding State "previous to the Constitution," and therefore it is not, according to the greater number of authorities, within the concurrent judicial power of that State.'

§ 819. Under this view of the legislative power of Congress in reference to this matter, an effect is attributed to this provision very similar to that which, in asserting the right to seize and remove a fugitive slave, is attributed to the other provision. As, in that instance, the law of personal condition of the State from which the fugitive from service escaped is supposed to operate in another State, so, here, the criminal law of the State from which the person charged fled is supposed to operate in another State, so that while it is judicially administered in the former State it may be ministerially executed in the latter. It would be perfectly consistent with this view if some other person, whether an officer sent by the Executive of the demandant State, or some United States Commissioner, or a

1 Ante, Vol. I., p. 492.

United States Marshal, should be indicated by Congress as the person to make the delivery: for, as the provision does not indicate the person who shall make the.delivery, it would appear, notwithstanding the argument of the Chief Justice that the Governor is the person contemplated,' that any person who might be empowered to execute any other provision of the national law might be enabled to enforce this.

§ 820. But if this consequence is not involved in Judge Taney's justification of the legislation of Congress, it would still seem that, under that view, legal operation or effect, altogether beyond any effect as evidence, had been given in a State to a judicial proceeding of another State; and whether this can be done is, at the least, a matter of much doubt, and besides, since the person affected by the judicial proceeding was beyond the jurisdiction of the State in which it was rendered, it would appear that it could not, under the decisions, have "effect," even as evidence, in other States."

§ 821. If either of these provisions is to receive the fourth construction it would appear that, in being part of the supreme law of the land, it binds all persons, private as well as public, and that the rights and obligations created by it might be maintained and enforced by the instrumentality of any whose office it may be, in any jurisdiction within the United States, to apply that law.

The judicial power of the United States extends to all cases arising under the Constitution. The question occurs whether, independently of any statute on the subject, the demand of a State for the delivery of a fugitive from justice, or the claim of a private owner for the delivery of a fugitive bondman, constitutes a case within the judicial power of the United States and within the concurrent judicial power of the several States?

The question-of the exercise of judicial power-which is here considered, is not whether the statutes which Congress should pass, in the exercise of an express or implied power to carry these provisions into effect, would not be a law, applica

'On which argument see ante, p. 549, note. * See ante, pp. 257–260.

'Ante, p. 246.

ble by the judicial power of the United States and the concurrent judicial power of the States. It is, whether these provisions operate as private law on the fugitive from justice or from labor, and, irrespectively of legislation, may be enforced. by the judicial power of the United States or of the several States; and, if they may be so enforced, whether there are any constitutional restrictions on the manner in which such power may be applied?

§ 822. And first, as to a demand for the delivery of a fugitive from justice.

If by Act of Congress the power to deliver up a fugitive from justice, on demand, has been vested in persons who cannot under the Constitution of the United States hold the judicial power of the United States, and who cannot under the Constitution of a State hold the judicial power of the State, such Act of Congress and the adjudged cases which support it may be authorities to show that a case within the judicial power does not arise on such demand. This class of authority will be presented in the next chapter, where the constitutionality of the Act of Congress of 1793, in view of the investiture of the judicial power of the United States, is examined.

The opinion of Kent, which has been given among the authorities on the construction of this provision,' seems to support the view that the demand and delivery of a fugitive from justice would be within the judicial power. But it is doubtful whether that author intended to say that such would be the case under the Constitution alone, independently of legislation, or only that by and under such legislation it could be made a proper subject for the action of the judiciary.

Other juristical authority, taking the same view, may be found in the opinion of those members of Congress who may have supported the bill on this subject which was rejected in the House of Representatives, March 1, 1861.'

But if any authorities support the doctrine that a case within the judicial power arises under the provision itself when a claim can be made for the delivery of a fugitive from

'Ante, § 733.

2 Ante, p. 425, note.

labor, they also, to some extent, support the same theory in respect to fugitives from justice; at least so far as they declare that operation of the two provisions is in all respects parallel.

§ 823. Under any construction of this provision, the right created is a right of the State from which the person charged had fled; it can hardly be said to be the right of "the execu tive authority" designated as the proper person to make the demand. If the provision should receive the second construction, and be taken to act on the State into which the fugitive from justice had escaped, creating a duty for such State correlative to the right of the State from which he fled, the refusal of the former to perform its duty might give rise to a controversy between the two States, to which the judicial power of the United States should extend by the express terms of Art. III., sec. 2. But on the demand alone, a controversy could hardly be said to arise between the supposed States.

But under the fourth construction the obligation correlative to the right is due by the fugitive himself. The "case" which arises under the Constitution, and which is within the judicial power, is, if it be such, a case, between the demandant State, or demandant Executive, and the person charged. The judi cial power would not, under this view, determine the rights and obligations of the State in which the person charged is found, but the rights and obligations of that person—a private individual. In this view, therefore, there is nothing in the eleventh Amendment to remove the supposed case from the extent of the judicial power of the United States.

§ 824. A construction of this constitutional provision by the analogous article in the compact of the New England colonies of 1648, if allowable, may afford an argument in favor of the view here suggested. By that article, the demand for a fugitive criminal was to be made upon "the magistrate or some of them, where for the present the said prisoner abideth," who was to order the delivery.' But the word "magistrate" at that period appears to have been used indifferently for all public functionaries, and the judicial and executive functions were not so distinctly separated as in later times.

See ante, Vol. I., p. 269, note [c].