Judge Daniel considered the discussion of the constitutionality of the Act of Congress improper in this case, and declined giving an opinion on the point. 16 Peters, 650, and ante, p. 488.

Judge Baldwin agreed with the court in the only question properly before it: that is, whether the judgment of the court of Pennsylvania against Prigg should be annulled. "But he dissented from the principles laid down by the court as the ground of their opinion." No written Opinion was delivered by him. See ante, p. 491.

Judge Thompson did not refer to this question. In the beginning of his Opinion he said that he had not been able to yield assent to all the doctrines embraced in the Opinion delivered by Judge Story. 16 Peters, 633; ante, p. 484.

§ 870. Of the other members of the court, only Judges Taney and McLean referred to the action of the State magistrates. Chief Justice Taney appears to have held, in the language of Story, above cited, that State magistrates “may, if they choose," act under the statute, or exercise authority in the manner therein provided; but said (16 Peters, 630) that "the State officers mentioned in the law are not bound to execute the duties imposed upon them by Congress, unless they choose to do so, or are required to do so by a law of the State; and the State Legislature has the power, if it thinks proper, to prohibit them."

Mr. Justice McLean considered this question of the duty of these State magistrates more fully than had either Judge Story or Judge Taney. On page 664 he says:-"It seems to be taken as a conceded point in the argument, that Congress had no power to impose duties on State officers, as provided in the above Act. As a general principle, this is true; but does not the case under consideration form an exception? Congress can no more regulate the jurisdiction of the State tribunals than a State can define the judicial power of the Union. The officers of each Government are responsible only to the respective authorities under which they are commissioned. But do not the clauses in the Constitution in regard to fugitives from labor and from justice give Congress a power over State offi

cers on these subjects? The power in both the cases is admitted or proved to be exclusively in the federal Government.

"The clause in the Constitution preceding the one in relation to fugitives from labor declares," &c. (quoting the clause):

"In the first section of the Act of 1793, Congress have provided that, on demand being made as above, it shall be the duty of the executive authority to cause the person demanded to be arrested,' &c. The constitutionality of this law, it is believed, has never been questioned. It has been obeyed by the Governors of States, who have uniformly acknowledged its obligations. To some demands surrenders have not been made; but the refusals have in no instance been on the ground that the Constitution and Act of Congress were of no binding force. Other reasons have been assigned. Now if Congress may, by legislation, require this duty to be performed by the highest State officers, may they not, on the same principle, require appropriate duties in regard to the surrender of fugitives from labor by other State officers? Over these subjects the constitutional power is the same. In both cases the Act of 1793 defines on what evidence the delivery shall be made. This was necessary, as the Constitution is silent on the subject. The Act provides that, on claim being made of a fugitive from labor, 'it shall be the duty of such judge or magistrate to give a certificate that the person claimed owes service to the claimant.' The Constitution requires," &c. The remainder of the portion of Judge McLean's argument on this point, from pp. 665, 666, has already been cited, ante, pp. 487, 488.

871. The constitutionality of the law of 1793 in respect to the question under consideration has not been discussed, and appears not to have been involved in any of the cases which have arisen under that statute since the date of Prigg's case.'

In Jones v. Van Zandt (1842-3), 2 McLean, 597, ante, p. 492, Driskill v. Par rish (1847), 3 McLean, 631, ante, p. 497, and Kauffman v. Oliver (1849), 10 Barr. 516, ante, p. 494, the action was for harboring and concealing, and there could have been no question of the validity of a certificate. Though in Driskill v. Parrish there had been a seizure by the claimant, with intention, as was declared, of taking the fugitives before "a judicial officer." Ante, 497, n. 2. So in State r. Hoppess (1845), 2 West, L. J. 289, ante, p. 496, the claimant had brought his sup posed slave before a justice, when the habeas corpus interrupted the proceedings.

But it is here proper to notice the quasi authorities on this point which have been elicited in the examination of the similar question in cases under the Act of 1850. In some of these cases it has been either implied or positively asserted that the magistrates of counties, cities, and towns corporate spoken of in the Act of 1793, or the State magistrates mentioned in the cases, exercise power which is derived from the United States but which is not part of the judicial power of the United States.

Among these authorities, which will hereinafter be fully cited, is the decision in Sims' case. The language of Chief Justice Shaw referring to the force of the objection taken to the action of State magistrates, is to be particularly noticed. It had been objected that the law of 1850 vested in the U. S. commissioners the judicial power of the United States, and it seems to have been assumed on all hands in that case that the action of the State magistrates under the law of 1793, which had been judicially sanctioned in earlier cases, involved the exercise of power of the same quality, derived from the same source. Judge Shaw, 7 Cushing, 303, said :-"If this argument, drawn from the Constitution of the United States, were now first applied to the law of 1793, deriving no sanction from contemporaneous construction, judicial precedent, and the acquiescence of the General and State Governments, the argument from the limitation of judicial power would be entitled to very grave consideration."

But in a passage which has been cited (ante, p. 60, note) from Judge Marvin's charge on the trial of Allen, the judge describes the power which State magistrates exercised, in proceeding according to the Act of 1793, as "State judicial power."

§ 872. In Wright v. Deacon, the Supreme Court of Pennsylvania sustained a custody under a certificate granted according to the Act of Congress by a judge of the Common Pleas Court of Philadelphia. In Jack v. Martin, the Supreme

'The positive assertion, that the power of the State magistrates who could have acted under the law of 1793 was power not derived from the States but from the United States, appears never to have been made in any instance until declared by Mr. Comm. Loring in Burns' case; see post.

Court, and the Court for the Correction of Errors, of New York, sustained the custody when the certificate had been granted by the Recorder of the city of New York. These cases are direct authority that persons holding these offices may perform that action which "magistrates of counties, cities, and towns corporate," are, by the law of 1793, empowered or permitted to perform.

In Prigg's case there was no actual custody under a certificate. If an opinion as to the constitutionality of the Act in this respect was not extra-judicial, it must be held that, in order to judge whether the Act of Pennsylvania was valid or not, it was necessary to prove not only that Congress had legislated on the same subject, but that their actual legislation was in all points constitutional.'

But, passing over this objection, it appears that although the court, speaking by Judge Story, admitted that in "that part which confers an authority upon State magistrates" the Act is not "free from reasonable doubt and difficulty," and only the Chief Justice, with Justices Story and McLean, appear to have given it any attention, Judge Story spoke of “this court" as entertaining no doubt "that State magistrates may, if they choose, exercise the authority" granted or permitted by the law, or, as he otherwise expresses it, "act under" the law; and Judge McLean and the Chief Justice differed only on the point whether the State magistrates were bound to act, or only might act if they should think fit.

From these dicta it has been supposed, in Sims' case and in all other cases under the law of 1850, that the Supreme Court must be taken to have held, in this case, that any magistrate of a

See ante, p. 491, note 3. It seems very questionable whether the court can decide on the constitutionality of provisions in a statute which do not affect the parties in the case before them; even when other provisions of the same statute do affect those parties. It was not pretended in this case that the statute of Pennsylvania would have interfered with the action of the claimant if he had proceeded according to the Act of Congress. If the State law was invalid only because in conflict with the law of Congress, it would have been necessary to prove that the latter was constitutional in that particular in which it was antagonistic to the State law. The decision in this case was not merely that a State statute in conflict with a valid Act of Congress is void; it was, that the legislation of Congress annuls all State legislation on the same subject-matter, though such legislation may not be void as in conflict with the Constitution.

county, city, or town corporate, may grant a certificate as provided by the Act of Congress, and that the custody of the claim-1 ant under such certificate will be valid. And, as regards our present inquiry, the Opinion of the court has been taken as authority that the power exercised by such "magistrates of counties, cities, and towns corporate," 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 decision in cases under the law of 1850, when the question was of the quality of the power exercised by the commissioners of the United States courts, it will be seen that the important inquiry here is, whether, in denying that the power exercised by the "magistrates of counties, cities, and towns corporate" 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.'

§ 873. In the passage in the Opinion of the court above cited, Judge Story speaks of part of the Act as that "which confers an authority upon State magistrates," and of "the authority conferred upon State magistrates." From this use of the word confer it may be argued that, in his view, the power exerted by these State magistrates would be power politically derived from the United States.

But Judge Story, in the same passage, intimated that by State legislation these magistrates might be prohibited from exercising the authority thus "conferred." Now, whenever a citizen of one of the States may, consistently with the public law of the United States, exercise authority politically proceeding from the sovereign powers held by the national Government, there certainly can be no power in State legislation to prohibit his exercise of that power. It is his right to accept the office, and the State cannot interfere with the performance of the duty he will then owe the national Government. His civil and political rights arising out of his allegiance and citizenship in respect to the powers held by the

1 See ante, p. 611, a similar inquiry stated as to the power exercised by the Governors of the States in delivering fugitives from justice.