ance should be determined by the duration of the circumstances which called for such a delivery, and that the legal custody under a judgment in the case supposed may continue as long as the fugitive is in any State wherein his debt of service or labor is not recognized by the local law of the forum.

But if the judgment in the cases supposed cannot thus operate beyond the State in which the fugitive was actually found, the inconvenience could not be remedied by any legislation of Congress; if that legislation is founded on the abovedescribed theory of carrying into effect the judicial power.

§835. If the delivery in the case of a fugitive of either class were made under the local law of a State, proposing to fulfill its obligations under the first construction of these provisions, it is evident that it could do so only when the State from which the fugitives escaped is not separated by intervening States from that in which they should be found. The obvious difficulty, in other cases, under this method of carrying these provisions into effect, has been urged as a proof of the necessity and propriety of legislation by Congress.' But it is plain that this argument bears, in reality, on the question of the construction of the provisions, and against the first construction. It is, at the best, only the argument ab inconvenienti. It applies with greater force to the construction of one provision than of the other; since, though a return to the State from which the fugitive from justice escaped is required by the first, a bare delivery to the claimant owner in the State where the fugitive from service is found may be enough to satisfy the requirement of the other. There is not, in the supposed inconvenience, any argument in favor of the second or of any adaptation of the third construction, and therefore no argument in support of a power in Congress. Or, if this inability on the part of the States, in some instances, to effectuate a return to the State from which the fugitive escaped, can only

'Jack v. Martin, 12 Wend. 321. Nelson, Ch. J.:-"We may add also that, as the power of legislation belonging to the States is in no instance derived from the Constitution of the United States, but flows from their own sovereign authority, any law they might pass on the subject would not be binding beyond their jurisdiction, and any precept or authority given in pursuance of it would carry none to the owner to remove the fugitive beyond it; the authority of each State through which it was necessary to pass would become indispensable." And in Prigg's case, see language of Thompson, J., 16 Peters, 634; Wayne, J., ib. 640.

be obviated by bringing the entire subject within the powers of the national Government, it may be done as well by assuming the fourth construction.

§ 836. An argument against power in Congress to legislate for the purpose of giving effect to any of the provisions of the second section of the fourth Article has been drawn from the special grant of power to legislate for giving effect to the clause in the first section declaring that "full faith and credit shall be given in each State to the acts, records, and judicial proceedings of every other State." This objection was principally insisted on by Judge Hornblower in the Opinion written in Helmsley's case.'

This argument is advanced as in conformity with the maxim, Expressio unius est exclusio alterius, and assumes that there is no distinction discernible between the rule expressed in the first section and those given in the second.

But whether there be no distinction, may depend upon the question, whether the several provisions in the two sections should all receive the same one of the four constructions already indicated as possible. But if they are all to receive the same, the force of the argument may differ according to the construction adopted.

It has not herein been thought necessary to consider the question of the construction of the first clause of the first section of the fourth Article. But-assuming here that the provisions of the second section are, according to the argument already stated, to receive the fourth construction, and that the clause in the first section should receive the same construction, by which it operates as private law, creating rights and obligations of private persons,-it is to be noticed that, while the rights created by the provisions of the second section are substantive or primary rights, which may be the foundation of cases to which the judicial power would extend, the rights created by the above-mentioned clause of the first section, being rights in respect to evidence, are only secondary, reme

2 Ante, pp. 453, 454, note. See also the statement of the argument by Mr. Wolcott, counsel, in Bushnell's and Langston's case, 9 Ohio, 119, and by Brinkerhoff, J., ib., 225.

dial, or adjective rights, which could not, alone, be the basis of such cases.' Hence there could be no foundation for the legislation of Congress in reference to the enforcement of the rights and obligations arising under this clause, as, according to the view already presented, there is reference to the enforcement of the rights and obligations arising under the provisions of the second section, under the fourth construction. There is, therefore, in harmony with these views, a reason for granting the power in the one case which does not exist in the other.

Ante, § 618.

CHAPTER XXVIII.

DOMESTIC INTERNATIONAL LAW OF THE UNITED STATES. THE SUBJECT CONTINUED. OF THE LEGISLATION OF CONGRESS IN RESPECT TO FUGITIVES FROM JUSTICE AND FROM LABOR. GENERAL NATURE OF THE INQUIRY. OF THE QUESTION WHETHER THE GOVERNORS OF STATES MAY CONSTITUTIONALLY DELIVER UP FUGITIVES FROM JUSTICE, AS PROVIDED BY THE ACT OF 1793.

§ 837. Whatever may be the true doctrine as to the power of Congress to legislate for the purpose of carrying into effect these provisions of the Constitution, the power has been exercised in the Acts of Feb. 12, 1793, and of Sept. 18, 1850, which are given in the note below.'

1L. St. U. S. 302, 2 B. & D. 331. An Act respecting fugitives from justice and persons escaping from the service of their masters.

SEC. 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the executive authority of any State in the Union, or of either of the territories, northwest or south of the river Ohio, shall demand any person as a fugitive from justice, of the executive authority of any such State or territory to which such person shall have fled, and shall, moreover, produce the copy of an indictment found, or an affidavit made before a magistrate of any State or territory as aforesaid, charging the person so demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or territory from whence the person so charged fled, it shall be the duty of the executive authority of the State or territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear: But if no such agent shall appear within six months from the time of the arrest, the prisoner may be discharged. And all costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the State or territory making such demand, shall be paid by such State or territory.

SEC. 2. And be it further enacted, That any agent appointed as aforesaid, who shall receive the fugitive into his custody, shall be empowered to transport him or her to the State or territory from which he or she shall have fled. And if any person or persons shall, by force, set at liberty or rescue the fugitive from such agent while transporting as aforesaid, the person or persons so offending shall, on conviction, be fined not exceeding five hundred dollars, and be imprisoned not exceeding one year.

SEC. 3. And be it also enacted, That when a person held to labor in any of the United States, or in either of the territories on the northwest or south of the river Ohio, under the laws thereof, shall escape into any other of the said States or territory, the person to whom such labor or service may be due, his agent or attor

Assuming that Congress has power to legislate for this purpose, or, that such legislation is "necessary and proper" in respect to its object, still, the terms necessary and proper in the eighth section of the first Article have significance not only in reference to the object of legislation, but also in re

ney, is hereby empowered to seize or arrest such fugitive from labor, and to take him or her before any judge of the Circuit or District Courts of the United States, residing or being within the State, or before any magistrate of a county, city, or town corporate, wherein such seizure or arrest shall be made, and upon proof to the satisfaction of such judge or magistrate, either by oral testimony or affidavit taken before, and certified by, a magistrate of any such State or territory, that the person so seized or arrested, doth, under the laws of the State or territory from which he or she fled, owe services or labor to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labor to the State or territory from which he or she fled.

SEC. 4. And be it further enacted, That any person who shall knowingly and willingly obstruct or hinder such claimant, his agent or attorney, in so seizing or arresting such fugitive from labor, or shall rescue such fugitive from such claimant, his agent or attorney, when so arrested pursuant to the authority herein given or declared; or shall harbor or conceal such person after notice that he or she was a fugitive from labor, as aforesaid, shall, for either of the said offences, forfeit and pay the sum of five hundred dollars. Which penalty may be recovered by and for the benefit of such claimant, by action of debt, in any court proper to try the same; saving, moreover, to the person claiming such labor or service, his right of action for or on account of the said injuries or either of them.

Approved February 12, 1793.

IX. St. U. S. 462. An Act to amend, and supplementary to, the Act entitled "An Act respecting Fugitives from Justice, and Persons escaping from the Service of their Masters," approved February twelfth, one thousand seven hundred and ninetythree.

SEC. 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the persons who have been, or may hereafter be, appointed commissioners, in virtue of any Act of Congress, by the Circuit Courts of the United States, and who, in consequence of such appointment, are authorized to exercise the powers that any justice of the peace, or other magistrate of any of the United States, may exercise in respect to offenders for any crime or offence against the United States, by arresting, imprisoning, or bailing the same under and by virtue of the thirty-third section of the act of the twenty-fourth of September, seventeen hundred and eighty-nine, entitled "An Act to establish the judicial courts of the United States," shall be, and are hereby, authorized and required to exercise and discharge all the powers and duties conferred by this act.

SEC. 2. And be it further enacted, That the Superior Court of each organized Territory of the United States shall have the same power to appoint commissioners to take acknowledgments of bail and affidavits, and to take depositions of witnesses in civil causes, which is now possessed by the Circuit Court of the United States; and all commissioners who shall hereafter be appointed for such purposes by the Superior Court of any organized Territory of the United States, shall possess all the powers, and exercise all the duties, conferred by law upon the commissioners appointed by the Circuit Courts of the United States for similar purposes, and shall moreover exercise and discharge all the powers and duties conferred by this act.

SEC. 3. And be it further enacted, That the Circuit Courts of the United States, and the Superior Courts of each organized Territory of the United States, shall