§ 825. Secondly, as to a claim for the delivery of a fugitive from labor.

If, by any legislation of Congress, the power to carry out the object of the other provision, by delivering up a fugitive from labor on claim, has been conferred on persons who cannot under the Constitution be invested with the judicial power of the United States, such legislation, and the adjudged cases which support it, are authorities to show that such delivery on claim does not properly belong to the judicial power. This class of authorities will be presented in another chapter when the constitutionality of the laws of Congress on this subject is examined.'

2

§ 826. With the exception of the dictum of Chancellor Walworth, in Jack v. Martin, there is probably no judicial opinion which can be cited in support of the doctrine that the claim of a master under this provision may be enforced, and a delivery made to him by the ordinary courts of the United States and of the several States, independently of any legislation. The doctrine seems, however, to be necessarily involved in maintaining the power of Congress to legislate as power to carry into effect the power of the judicial department of the United States. The authorities supporting that basis of legislation will be noticed in the latter part of this chapter.'

§ 827. The exercise of judicial power by a State court is determined either by antecedent judicial usage or by the State legislation. The exercise of the judicial power of the United States is distinguishable according to the nature of the rights and obligations which are the subject-matter of the judgment; that is, as the power is applied in cases at common law or in cases not at common law. On the exercise of the powers of the national Government, in reference to the first of these classes of cases, there are special limitations in the Constitution and the Amendments. Subject to these, the exercise of the judicial power of the United States by the Circuit and District courts, is regulated by adopting, under the legislation of Congress, the English common law of remedy as it may have

1 See post, in Ch. XXIX. Compare ante, § 822. * 14 Wendell, 527, and ante p. 451, note.

• See post, § 832.

prevailed at the date of such legislation in the States in which those courts may exercise jurisdiction.' In causes of equity, and of admiralty and maritime jurisdiction, the forms and modes of proceeding adopted under the same authority are according to the course of the civil law; that is to say, "the principles and usages which belong to courts of equity and courts of admiralty respectively as contradistinguished from courts of common law," are adopted as a law of remedy, subject to various modifications expressed in the laws of Congress establishing those courts, and to the powers conferred on them to regulate their own proceedings.'

The practice of the Supreme Court, in the exercise of its very limited original jurisdiction, is directed by rules which it has full power to establish for itself, subject only to a few very general provisions in the judiciary acts. All these courts are empowered "to issue writs of scire facias, habeas corpus, and all other writs not specially provided by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law."*

If the subject-matters of the rules contained in these provisions in the fourth Article constitute cases at common law, there are certain constitutional restrictions which apply to the exercise of the judicial function by the national authority. If they do not constitute cases of that denomination, there are other restrictions which apply generally to the exercise of any authority conferred by the Constitution of the United States, which therefore must modify the judicial action of the national courts in these cases.

Acts Sep. 24, 1789, § 34, I. Stat. U. S. 73; Mar. 2, 1793, § 7, ib. 335; Sep. 29, 1789, § 2, ib. 93; May 19, 1828, § 1. IV. Stat. U. S. 278. Wayman Southard, 10 Wheaton, 1; Robinson v. Campbell, 3 ib. 212, 222; 1 Peters' C. C. R. 1. On the exceptional position of Louisiana, in which the remedial forms of the civil law had exclusively prevailed, see Act May 26, 1824, IV. St. U. S. 62; 3 Peters', 433, 446.

2 Act May 8, 1792, § 2, I. St. U. S. 276; the authorities last cited; Manro v. Almeida, 10 Wheaton, 473.

'The same authorities; Act Sep. 29, 1789, § 17; Mar. 2, 1793, § 1; L St. U. S. 335.

4 Acts of Sep. 24 and 29, 1789. See Conckling's Treatise, 3d ed. 300. Act of Sep. 24, 1789, § 14. It seems that, in matters of habeas corpus in the United States courts, the law followed is the common-law practice of England, as it stood at the time of the adoption of the Constitution. Ex parte Watkins, 3 Peters, 201; Ex parte Randolph, 2 Brock. C. C. 476.

The judicial and juristical opinions on the force of such constitutional restrictions to limit the action of the national Government in carrying these provisions into effect, have been expressed only in cases arising under the Acts of Congress directed to that end. These opinions will be presented in the succeeding chapters. In no instance, probably, has a demand for a fugitive from justice or a claim for a fugitive from labor been brought before a judicial tribunal, except in proceedings instituted under the Acts of Congress or some State law.

§ 828. If the judicial power of the several States may be concurrently exercised in applying the law contained in these provisions, it would seem that it must be applied consistently with whatever guarantees private persons may claim under law proceeding from the same source; i. e., guarantees contained in the national Constitution.' But, in other respects, the exercise of State judicial power must depend altogether upon the State constitution. There is nothing in the Constitution of the United States to determine the exercise of State judicial power, except the general provision in the sixth Article, that "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding."

The delivery of fugitives from justice and from service was evidently, originally, within the juridical power of the several States. It would appear, therefore, that cases arising under these clauses, according to the fourth construction, would fall within the concurrent judicial power of the States, and that they will be within the cognizance of any State court having ordinary or common-law jurisdiction,' and by State legislation may be placed within the cognizance of courts of

'But if a law in reference to the same subject-matter may proceed from the "reserved powers" of the State, in the exercise of concurrent juridical or legislative power, such law could be applied by the judicial power of the State, subject only to guarantees in the State constitution or bill of rights.

Ante, § 456.

special or limited jurisdiction. Since the law to be applied in the supposed case is national law in its authority, it is necessary to admit that the application of it may by Congress be confined to the national judiciary, and that, while it is concur rently administered, the supreme national judicature will have the same duties and powers in reference to its application by State courts which it has in the application of any other rule found in the Constitution and operating as private law.'

3

§ 829. On general or common-law principles it would seem that State courts of ordinary or general jurisdiction have power to frame and issue writs suited to bring up the alleged fugitive from justice or from labor to answer the demand or claim. The writ of habeas corpus, as ordinarily spoken of, may be called "that legal process which is employed for the summary vindication of the right of personal liberty when illegally restrained." As such it would be unsuitable for the purposes of a demandant or claimant under either of the constitutional provisions, since there would not, in either case, be any third party supposed to be unjustly detaining the fugitive, against whom it could be directed. It is indeed the habeas corpus cum causa, ad subjiciendum et recipiendum, the writ of right, the great English guarantee of personal freedom, which, in the Constitution and in bills of rights, is particularly referred to as the writ of habeas corpus. But the term is generic for a variety of writs known to English law. Other writs of the same class, as habeas corpus ad respondendum, ad faciendum et recipiendum, ad satisfaciendum, might be employed in these instances. Or perhaps the writ de nativo habendo, with

1

Ante, § 459. Jack v. Martin, 14 Wend. 527, Walworth, Ch. :-" The Supreme Court of the United States is possessed of ample powers to correct any erroneous decision which might be made in the State courts against the right of the

master."

It is provided in R. S. of New York, P. III., c. 3, t. 2, art. 1, § 1, as before in 2 R. L. of 1813, p. 147, that courts of record shall have power “to devise and make such new writs and forms of proceeding as may be necessary to carry into effect the powers and jurisdiction possessed by them."

'Rollin C. Hurd's Habeas Corpus, 143.

Ib. 144.

The law of New York, of 1828 (ante, p. 57), provided for issuing in these cases a writ of habeas corpus, without other descriptive words. According to the minutes of a trial of an owner for attempting forcibly to abduct his slave from England, in King's Bench, Feb. 20, 1771, which are given in Hoare's Life of Granville Sharp, 4to. p. 59, Lord Mansfield said: "I have granted several

the adverse writ de proprietate probanda, might be revived for the purpose of enforcing the claim for a fugitive from labor.'

If the master may seize the slave for the purpose of removal, as decided in Prigg's case, then, as a means of trying the question of ownership, a habeas corpus cum causa or a writ of personal replevin may be sued out on behalf of the person seized. But, according to the view of the provision which is herein taken, the right to seize the fugitive is given only, if at all, to enable the claimant to bring him before a court which

writs of habeas corpus upon affidavits of masters for their negroes. Two or three, I believe, on affidavits of masters deducing sale and property of their negroes, upon being prest, I have granted habeas corpus to deliver them to their masters; but whether they have this kind of property or not in England, has never been solemnly determined."

For the nature of the proceeding on these writs, see Fitzherbert's Nat. Brev. fo. 77, 87; Co. Litt. fo. 124. Mr. Sumner, in a speech in the Senate of the U. S. on his motion to repeal the fugitive-slave bill, Aug. 26, 1852, summed up part of his argument as follows:

"Briefly, the States are prohibited from any law or regulation' by which the fugitive may be discharged, and, on the establishment of the claim to his service, he is to be delivered up. But the mode by which the claim is to be determined is not specified. All this is obviously within the control of each State. It may be done by virtue of express legislation, in which event any legislature, justly careful of personal liberty, would surround the fugitive with every shield of the law and constitution.

"But such legislation may not be necessary. The whole proceeding, without any express legislation, may be left to the ancient and authentic forms of the common law, familiar to the framers of the Constitution, and ample for the occasion. If the fugitive be seized without process, he will be entitled at once to his writ de homine replegiando, while the master, resorting to process, may find his remedy in the writ de nativo habendo-each writ requiring trial by jury.

"If, from ignorance or lack of employment, these processes have slumbered in our country, still they belong to the great arsenal of the common law, and continue, like other ancient writs, tanquam gladium in vagina, ready to be employed at the first necessity. They belong to the safeguards of the citizen. But, in any event, and in either alternative, the proceedings would be by suit at common law,' with trial by jury, and it would be the solemn duty of the court, according to all the forms and proper delays of the common law, to try the case on the evidence; strictly to apply all the protecting rules of evidence, and especially to require stringent proof, by competent witnesses under cross-examination, that the person claimed was held to service; that his service was due to the claimant; that he had escaped from the State where such service was due; and also proof of the laws of the State under which he was held. Still further, to the courts of each State must belong the determination of the question, to what classes of persons, according to just rules of interpretation, the phrase 'persons held to service or labor' is strictly applicable.

Such is this much-debated provision. The slave States, at the formation of the Constitution, did not propose, as in the cases of naturalization and bankruptcy, to empower the national government to establish an uniform rule for the rendition of fugitives from labor, throughout the United States; they did not ask the national government to charge itself in any way with this service; they did not venture to offend the country, and particularly the Northern States, by any such assertion of a hateful right. They were content, under the sanctions of compact, to leave it to the public sentiment of the States. There, I insist, it shall remain."