it has been uniformly recognized as a binding and valid law, and as imposing a constitutional duty.""

It is true that, on the same page, Judge Story says:-" But we do not wish to rest our present opinion upon the ground either of contemporaneous exposition, or long acquiescence, or even practical action; neither do we mean to admit the question to be of a doubtful nature, and therefore as properly calling for the aid of such considerations. On the contrary, our judgment would be the same if the question were entirely new, and the Act of Congress of recent enactment. We hold the Act to be clearly constitutional in all its leading provisions, and, indeed, with the exception of that part which confers authority upon State magistrates," &c. The statement of the doubt on this point has already been referred to.

But it is certainly fair to conclude that the court did not intend to go beyond the earlier cases in affirming the constitutionality of the law in any particular not before the court, unless such intention can be shown from its positive expression.

§ 880. On examining the cases thus referred to by the court, it will be found that in Glen v. Hodges there was no certificate given by any public officer, either State magistrate or judge of a United States court, nor was the slave even committed or arrested by any such officer to answer to the claim of the owner. Nor was there any such certificate, commitment, or arrest in Commonwealth v. Griffith. The claimant in that case, if he intended to apply for a certificate under the Act, proposed to bring the slave before a judge of the United States Court.

In Wright v. Deacon, a certificate had been issued by Judge Armstrong, of the Common Pleas Court of Philadelphia. In Jack v. Martin, the Recorder of the City of New York had granted a certificate, and Judge Nelson regarded the slave as being in custody under it. But in the view of the case taken by the Court for the Correction of Errors, the validity of a custody under a certificate so granted was not inquired into. The question then is, could the Judge of the Common Pleas

1 Ante, p. 473.

of Philadelphia and the Recorder of the City of New York have granted the certificate in these cases in virtue of power derived from the State? and may not the court, in Prigg's case, have regarded them as having acted in virtue of that power?

§ 881. In the former part of this work it has been shown that the national law may always be applied concurrently by the judicial power of the States, or, if not in all cases, certainly in those wherein the rights and obligations involved are such as were originally determinable by the authority of the States severally; provided the application of the law has not by Congress been made exclusive in the national judiciary.' There was no such limitation in these cases.

By the fourth construction of the provision (which has herein been presented as the true one) it, of itself, maintains the right and obligation in a relation between private persons, and the claim gives rise to a case within the judicial power." It has already been urged that one or more members of the court, in Prigg's case, may have adopted this construction.'

By the third construction (supposed to have been adopted by the majority of the court, in Prigg's case), the claim is on the national Government, and (according to Judge Story's view) gives rise to a case within the national judicial power. Such a claim certainly would not have been within the original jurisdiction of any State before that Government existed.

But whatever construction may be the true basis of legislation, the claim, when made under the Act of Congress, is the same as that which would have been made under private international law; the alleged fugitive defends, or denies the claim, and neither the national Government nor the State appears as a party.

It cannot be doubted that such a claim of a master for the person of the fugitive from service was a matter for legal decision originally determinable by the juridical power of each State.

§ 882. But it has been shown that the judicial power of the State can be thus concurrently exercised only by State officers 'Ante, Vol. I. pp. 492-503. Ante, pp. 582-584. Ante, p. 492. Ante, p. 480.

directly authorized by special legislation, or by those who are judges of courts of ordinary common-law jurisdiction.'

Could the judge of the Common Pleas of Philadelphia, and the Recorder of the city of New York, thus exercise the judicial power of their respective States?

The jurisdiction of the Common Pleas of the city of Philadelphia, under later statutes, seems to have been questionable in cases after Wright v. Deacon (1819), but it seems that, at the date of that case, that court was regarded as having ordinary common-law jurisdiction."

The court of the Recorder of the city of New York was one of special criminal jurisdiction, but the Recorder, at the date of Jack v. Martin, was also, under the charters of the city and statute modifications, one of the judges of the Court of Common Pleas for the city of New York, a court of ordinary or common-law jurisdiction succeeding to the older Mayor's Court, also a court of the same jurisdiction.*

The Recorder was also, by statute, empowered to exercise the powers of a judge of the Supreme Court of the State at Chambers, and to issue the writ of habeas corpus; and being so empowered, he was one of the officers authorized to issue the writ for the benefit of the claimant, and to decide the question in the manner provided by the State statute."

If the legislation of the States of Pennsylvania and New York, in respect to the delivery of slaves, was invalid by reason of the legislation of Congress on the same subject, it does not appear that judges of courts of ordinary common-law jurisdiction would have thereby been incapacitated from the exer

1 Ante, Vol. I., p. 500.

2 Palmer v. Commonwealth, 6 S. and R. 246; Kline v. Wood, 9 ibid. 296; Hoop v. Crowley, 12 ibid. 220, note; also, compare Dunlop's Laws of Pa. (1836), c. 416, § 18, 20.

3

Judge Daly's Hist. Essay, 47, 73, 78, in 1 E. D. Smith's Reports of N. Y. C. P.; Sess. Laws, 1821, p. 64, §§ 2, 11; R. S., Part III., t. 5, c. 1, §1; Davies' Laws relating to the City, 154, 157, 184; Laws of the City, ed. 1833, 122, 123, note; Murray v. Fitzpatrick, 3 Caines, 38. That Common Pleas Courts in N. Y. (at least before 1846, see Frees v. Ford, 2 Selden, 178) were of ordinary commonlaw jurisdiction, see Foot and Beebe v. Stevens, 17 Wend. 483. Hart v. Seixas, 21 Wend. 48; though of inferior jurisdiction, People v. Justices of Delaware, 1 Johns. C. 181; and had no jurisdiction of writ of right, People v. N. Y. Com. Pleas, 4 Wend. 215. Compare question of jurisdiction of N. Jersey Com. Pl., in Kempe's Lessee v. Kennedy, 5 Cranch, 179, 185; S. C., 1 Peters' C. C. R. 37. R. S., Part III., ch. 3, t. 2, § 32.

R. S., Part III., ch. 9, t. 1, § 6 and § 25, ante, p. 57.

cise of the concurrent judicial power of the State, if there was nothing in the State law to forbid them.'

§ 883. It may be objected to the foregoing argument that the courts have affirmed an Act of Congress necessary to make the claimant's custody of his recaptured slave lawful in States other than that in which the delivery should take place,States through which it should be necessary for them to pass in returning to the State from which the fugitive had escaped;' that, hence, when these courts affirm the competency of a State magistrate to give a certificate sufficient for this end, they attribute to his decision an authority which the judicial power of his own State could not give; for a custody resting on State authority would be valid only within the State.

But the answer is, in the first place, that no custody under a certificate so given by a State magistrate has ever in any actual case been so maintained in passing through another State, being a free State, so called. There is no reported instance in which it has become the subject of judicial inquiry-how far the custody would be valid under such circumstances or preclude a renewed inquiry into the claimant's right. In the greater number of cases the question could not have been made, because, usually, the State in which the fugitive was found and delivered up was contiguous to that from which he escaped, and in other instances the return might have been by sea. Of the cases referred to in Prigg's case, Jack v. Martin is the only one where free States intervened geographically between the State wherein the fugitive was found and that from whence he escaped. There is nothing to show that the slave was actually carried back to Louisiana. He might have been carried by sea; and if transported through other free States, there is nothing to show what force was attached to the certificate given by the Recorder.

But besides even though it should have been decided that a delivery by a State magistrate according to the Act of Con

By sec. 9 of the law of Pennsylvania, 1825-6 (ante, p. 71), aldermen and jus tices of the peace were forbidden to act under the law of Congress; and by sec. 14 of the law of New York, 1828 (ante, p. 57), such magistrates were forbidden to grant any warrant or certificate in these cases. In this legislation there seems to be a recognition of a competency in courts of ordinary jurisdiction independently of the powers specially conferred on them by these State statutes.

2 See opinions noted, ante, p. 595, n.

gress would establish a right in the claimant to hold such fugitive, while thus in transitu, as under a law having a national effect or extent-it does not follow that the act of the State magistrate in deciding on such a claim and making such delivery, though performed according to the national law, is an exercise of a function politically derived from the United States. A right and obligation established by a law of national extent may constitute a valid legal relation between the persons affected by it, wherever the law extends, though the judicial determination of the existence of that relation should be made by an officer having a limited territorial jurisdiction. The Act provided for the recognition of the certificate, and the Constitution had declared that "full faith and credit shall be given in every other State to the acts, records, and judicial proceedings of every other State, and that Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." The validity, in other intervening States, of a custody over the fugitive under the decision of a judicial officer of the State in which he may have been found, is not inconsistent with the idea that the decision was made in the exercise of power derived from the State.

§ 884. Again, it may be urged in objection, that while the national law may be applied by the concurrent judicial power of the State, yet it can be so applied only in remedial forms which are sanctioned by the common-law usage of the State; that this was herein before admitted, when it was argued that the claim of the owner might be enforced by the State courts independently of any legislation;' that new remedial forms, created by a law of Congress, cannot thus be applied by the judicial power of the State, even though the substantive rights and obligations intended to be guarded by that law might be maintained by that judicial power applying forms known to the common law of the State.

It will be seen that this giving credit and effect to the judgment of a tribunal of the forum having actual jurisdiction of the parties is very different from that giving operation and effect to the criminal law of the State from which a fugitive from justice had escaped, which was involved in Judge Taney's justification of the legislation of Congress in Kentucky v. Dennison, ante, §§ 818-820.

2

Ante, §§ 827, 828.