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a particular class of its duties, and, consequently, would regard his authority as politically derived from the State. In other words, Judge Taney, in language contradictory to that of Judge Pope in a case hereinafter cited,' would consider the power as official in the Governor, and not personal.

Whether the court's refusal of the mandamus is consistent with. passages in the Opinion declaring the existence of an "absolute right" in the demanding party and "a correlative obligation" on the other side, and that, the right and obligation being established by the Constitution, "it became necessary to provide by law the mode of carrying it into execution," is not very material here to consider.

§ 847. Chancellor Kent, in the passage already cited from his Commentaries, seems to be the only juristical authority holding that the power exercised is judicial in quality.'

§ 848. In some of the cases under the law of 1850 (wherein an argument, that the action of the commissioners of the United States Courts is not judicial in character, is based on the doetrine that the power exercised by the latter, in respect to fugitives from labor, is of the same quality with that exercised by the Governors of States in respect to fugitives from justice) it is assumed, as beyond question, that the action of the Governors, under the law of 1793, is not an exercise of judicial power. In these instances, while it is admitted that the constitutionality of this Act of Congress in this respect has never been the subject of direct judicial decision, it is common to refer to the fact

Ante, pp. 428, 429.

1 Post, 849. Ante, § 733. Similar authority for the same doctrine may be found in the bill, noted ante, p. 425. From a Report in the Legislature of Virginia, March 17, 1840 (Va. Laws, 1839, p. 155-166), it seems that the Legislature of Georgia had proposed an appeal to the Congress of the United States so to amend the statutes heretofore passed upon that subject as to authorize the demand in the cases contemplated to be made upon the circuit judge of the United States having jurisdiction in the State where the fugitive may be found. The Committee of the Virginia Legislature “has decided objections, and it cannot withhold the expres sion of its regret that Georgia, with whom Virginia will make common cause, should recommend it. In the first place, the surrender of a fugitive from justice is properly an executive duty," &c. And, on p. 166, the Committee say that there would be danger of collision between the State and the Federal authorities, and that they are unwilling to have the subject of slavery discussed in this way in Congress, on the introduction of Virginia. The report was on the controversy with New York, ante, p. 10. An inference as to the character of the action may be founded on the statute which places the extradition of fugitives in the District of Columbia within the powers of the Chief Justice of the District. Ante, p. 24. See also the law of Kentucky, ante, p. 15, n., and of Indiana, ante, p. 129, n

that the Governors of States have repeatedly made the delivery required, and that their power to do this in a proper case has never been questioned. It has been common to quote Judge Story's statement of this argument in Prigg's case.'

This " acquiescence," as Judge Story called it, or this acting in the manner contemplated by the statute, is indeed evidence that the Act has not been considered unconstitutional, and, as regards the present inquiry, that the power exercised by the Governors is not the judicial power of the United States. But the conclusion is the same, whatever may be the nature of the power, if that power is not derived from the United States. From the use made of this conclusion in sustaining the legislation respecting fugitives from labor, it will be seen that the important inquiry is, whether, in denying that the power exercised by the Governor is the judicial power of the United States, it is the quality of the power or the source of the power which is referred to. Judge Story, in the place cited, had no reference to the question of the nature of the power exercised by the Governors of States. He was arguing only in support of the power of Congress to legislate in reference to the subject; which power is here assumed to exist. The power of a Governor of a State to act in the manner contemplated in these sections of the Act of 1793 has never been questioned in the cases arising under them, but whether the decisions sustaining his action involve the proposition that his action is not an exercise of power properly belonging to the judiciary, under the clause of the Constitution above cited, depends on the question, whether he is held in those cases to be exercising powers derived from the national Government, or a power incident to his office as State Executive. If his power in this respect is derived by the United States, then the precedents sustaining his action may be taken to affirm that the power is not judicial power, in its quality.

§ 849. It was held, in Ex parte Smith (1842), 3 McLean's C. C. R. 129, 131, by Judge Pope, that the Governor of Illinois had acted as the instrument or appointee of the national

' 16 Peters, 620, ante, p. 472; and see McLean, J., to the same effect, 16. Peters, 665, and Swan, Ch. J., 9 Oh. 190.

Government, and not as the officer of the State; that the Act of Illinois requiring him to make such surrender, while it may have imposed upon him a duty, conferred no power, and did not make him the instrument of the State. The judge says:"The power is not official in the Governor, but personal.' It might have been granted to any one else by name. But considerations of convenience and policy recommended the selection of the executive who never dies."

But it may be doubted whether this theory has been uniformly adopted.' The statute, it will be noticed, does not direct upon whom the demand shall be made by the Executive of the State from which the alleged criminal fled, but contemplates cases in which that demand, accompanied by certain specified proofs, shall have been made upon the Executive of the State into which such criminal has fled. It is true that it then declares what "shall be the duty" of the latter in such case; and if a duty is imposed by the Act, it would ap pear that some authority must have been at the same time

conferred.'

§ 850. In all or nearly all the States Acts have been passed to enable the Executive to make the delivery of a fugitive from justice according to the constitutional provision;*

1 But the language of the Act is singularly inappropriate to this view of the power. The words are:-"It shall be the duty of the executive authority of the State to," &c.

In Prigg's case, 16 Peters, 664, Judge McLean seems to have justified the action of the State magistrates in delivering up fugitives from labor as the exercise of power politically derived from the State, not from the United States (post, §870); and referring to the compliance of the Governors of States with the provisions of the Act, he draws this parallel between their action and that of the State magistrates:-"Now, if Congress may by legislation require the duty to be performed by the highest State officer, may they not on the same principle require appropriate duties in regard to the surrender of fugitives from labor by other State officers ?" Appropriate duties" must mean duties appropriate to the offices they should be holding under the State. It would seem that Judge McLean would hardly have agreed with Judge Pope, in Smith's case, that the power in the Governor is not official, but personal.

In Ex parte Smith, 3 McLean, 131, it is said that the Act directs the demand to be made upon such Executive. Story, J., in Prigg's case (16 Peters, 620, ante, p. 473), speaks of the Act "which designated the person (the State Executive) upon whom the demand should be made."

• See ante, the statutes empowering the Governor to deliver up fugitives from justice noted under laws of Virginia, p. 8; Kentucky, p. 15; Massachusetts, pp. 31, 33; Maine, p. 34; New Hampshire, p. 36; Connecticut, pp. 42, 43, 48; New York, p. 58; Tennessee, p. 94; Illinois, p. 136; Michigan, p. 138; Wisconsin. p. 142; Alabama, p. 153; Louisiana, p. 165; Missouri, p. 169; Arkansas, p. 172; Iowa, p. 177; Minnesota, p. 178; Kansas, p. 187; Florida, p. 193; Californis, p. 204; Oregon, p. 217.

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

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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.

2 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

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