national Government are co-existent and in perfect harmony with the rights and duties which arise from his allegiance and citizenship in respect to the sovereign powers held by the State of which he is an inhabitant. If the law of Congress is constitutional in respect to the public law of the United States, his power to act or not to act in the manner prescribed by Congress is a matter with which the State, in the fullest exercise of its "reserved" powers, has nothing to do.' If, then, Judge Story held that the power to be exercised by these State magistrates would be held by them personally, or as private individuals merely, designated or described as being citizens holding the office of State magistrate, and that it would not be a power incident to their functions in the office conferred by the State, there was no propriety in referring to the State Legislatures as having power to forbid their acting in the mode prescribed by Congress.

§ 874. In the passage cited from his Opinion, Chief Justice Taney likewise says that "the State Legislature has the power, if it thinks proper, to prevent" these State magistrates from acting. From his saying that they were under no more obligation to accept a power or office under the Act than are other persons, it would seem to have been his opinion that if they should "choose" to act they would exercise power politically derived from the United States. But from other passages in his Opinion, when arguing in favor of concurrent State legislation, it seems that Judge Taney considered the State as the source of the authority exercised in these cases by the State magistrate. On p. 630 of the report his language is:

"Indeed, if the State authorities are absolved from all obligation to protect this right, and may stand by and see it violated without an effort to defend it, the act of Congress of 1793 scarcely deserves the name of a remedy. The State officers mentioned in the law are not bound to execute the duties imposed upon them by Congress, unless they choose to

It is not disputed that a State may deprive those who will act under the law of Congress of the office of State magistrate, and thus, virtually, may prohibit the magistrate from acting as prescribed by the national law. See the law of Massachusetts of 1858, ante, p. 33.

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. The act of 1795, therefore; must depend altogether for its execution upon the officers of the United States named in it. And the master must take the fugitive, after he has seized him, before a judge of the District or Circuit Court, residing in the State, and exhibit his proofs, and procure from the judge his certificate of ownership, in order to obtain the protection in removing his property which this act of Congress professes to give.

"Now, in many of the States there is but one district judge, and [631] there are only nine States which have judges of the Supreme Court residing within them. The fugitive will frequently be found by his owner in a place very distant from the residence of either of these judges, and would certainly be removed beyond his reach, before a warrant could be procured from the judge to arrest him, even if the act of Congress authorized such a warrant. But it does not authorize the judge to issue a warrant to arrest the fugitive; but evidently relied on the State authorities to protect the owner in making the seizure. And it is only when the fugitive is arrested and brought before the judge that he is directed to take the proof and give the certificate of ownership. It is only necessary to state the provisions of this law in order to show how ineffectual and delusive is the remedy provided by Congress, if State authority is forbidden to come to its aid.

"But it is manifest from the face of the law, that an effectual remedy was intended to be given by the act of 1793. It never designed to compel the master to encounter the hazard and expense of taking the fugitive, in all cases, to the distant residence of one of the judges of the courts of the United States; for it authorized him, also, to go before any magistrate of the county, city, or town corporate wherein the seizure should be made. And Congress evidently supposed that it had provided a tribunal at the place of the arrest, capable of furnishing the master with the evidence of ownership to protect him more effectually from unlawful interruption. So far from regarding the State authorities as prohibited from in

VOL. II.--41

terfering in cases of this description, the Congress of that day must have counted upon their cordial co-operation. They legislated with express reference to State support. And it will be remembered that, when this law was passed, the gov ernment of the United States was administered by the men who had but recently taken a leading part in the formation of the Constitution. And the reliance obviously placed upon State authority for the purpose of executing this law, proves that the construction now given to the Constitution by the Court had not entered into their minds."

It seems to have been the Chief Justice's opinion that the State magistrates of whom he spoke would have no power to act as therein provided, unless thereto authorized by State legislation. It is even doubtful whether he interpreted the Act of Congress as empowering them to hear the proof of claim and give the certificate, or only as authorizing them to make the commitment preparatory to a hearing before a judge of some one of the national courts.'

875. As regards Judge McLean's argument from the supposed constitutionality of the action of Governors of States in delivering up fugitives from justice, its whole force turns on the questions-whether it is or is not an exercise of power derived from the United States, and-whether it is not, by custom of nations, appropriated to a different function of the Government. These have already been considered.❜ Judge McLean says that "the power in both cases is admitted or proved to be in the federal Government," from which the inference would seem to follow that the action of the State magistrates could be an exercise of federal or national power only. But then he also argues that Congress may require this action from State magistrates, because it is a fulfillment of the duty of the State. His views, on the whole, appear to be that, though the permission to act is ultimately dependent on the will of Congress, yet the power which would be exercised

If he contemplated the State magistrate as only empowered to arrest the fu gitive for the purpose of having him brought before a United States judge who should take proof and grant the certificate, the authority of the Chief Justice is directly for the reverse of that for which this case has been taken in the question of the power exercised by the commissioners under the law of 1850.

Ante, pp. 611–613.

by the State magistrates would be power politically derived from the State, and not from the United States. And this was probably the view of the other judges who considered the question.

§ 876. It will be objected that, since "magistrates of counties, cities, and towns corporate," have no power, in virtue of their office under the State Government, to act in the manner prescribed by the Act of Congress, the court, in maintaining the right of such persons to act in the manner so prescribed, must be taken to justify such action as the exercise of power politically derived from the United States; and that hence, in the present inquiry, the court must be taken to have decided that the power so exercised is not judicial in quality.'

But it will be noticed that the several judges always use the term State magistrates; and the question occurs, whether the court, or any single member of the court, intended to declare that the action prescribed by the Act of Congress might be performed by any person who may come within the description of magistrate of a county, city, or town corporate.

877. The word magistrate has a very indeterminate use in our language. It is sometimes used to designate the possessor of the supreme power, but more commonly it is applied to judges of courts holding power strictly judicial, and to persons holding an inferior or more limited judicial power in connection with powers nearly connected with the administrative department of the Government.' The extent of the functions of magistrates of the last class depends, both in England and America, upon special statutes, or is limited by well-established customary law. In Jacob's Law Dictionary, voc. Magistrate, it is said, "The rights and dignities of mayors and aldermen, or other magistrates of particular corporations, are more private and strictly municipal rights, depending entirely upon the domestic constitution of their respective franchises. The magistrates and officers whose duties are most generally in use and have a jurisdiction dispersedly throughout the kingdom

'This must have been the reasoning of Judge Shaw in Sims' case, 7 Cushing, 302, 308, and of Judge Nelson in his charge to the grand jury, Blatchford's C. C. R., 643. See ante, Vol. I., p. 501, n. 2.

Ante, Vol. I., pp. 508-510.

are principally these: sheriffs, coroners, justices of the peace, constables, surveyors of the highways, and 'overseers of the poor."

§ 878. It may have been that the court regarded the action of the Governors of the States, in delivering up fugitives from justice conformably to the Act of Congress, as an exercise of power derived from the State, on the ground that the provision in respect to fugitives from justice created a duty on the part of the State to deliver the fugitive when demanded by another State (adopting the first or the second construction), and that the power to act for the State in such international relation is incidental to the executive function.' But even if the court regarded the other provision as creating a like duty on the part of the State in respect to fugitives from labor (adopting the same construction), they could hardly have regarded an officer whose jurisdiction is limited to a county, city, or town corporate, as having, in virtue of his office, the like power to act for the State as a political person.

§ 879. It is important to notice that though, in the Opinion of the court, the question, whether Congress has power to legislate for the purpose of carrying the provision into effect, is very fully considered as preliminary to the question, whether, by such legislation, the States are precluded from passing any law on the same subject-matter, yet the constitutionality of the Act, in its details, is not argued, except by referring to the earlier cases. This is on page 621 of the report, where the court say: "It [the validity of the Act of 1793] has naturally been brought under adjudication in several States in the Union, and particularly in Massachusetts, New York, and Pennsyl vania, and on all these occasions its validity has been affirmed. The cases cited at the bar, of Wright v. Deacon, 5 Serg. and Rawle, 62; Glen v. Hodges, 9 Johns., 67; Jack v. Martin, 12 Wend., 311; S. C. 14 Wend., 507; and Com. v. Griffith, 2 Pick., 11, are directly in point. So far as the judges of the courts of the United States have been called upon to enforce it, and to grant the certificate required by it, it is believed that