"But if it were conceived, that Virginia might chastise offences against Pennsylvania, or, that an action might be maintained in Virginia for what is a crime in Pennsylvania, it would not follow that the latter could not demand a malefactor from the former; for the clause in the Constitution was obviously dictated by a wish to prevent that distrust which one State would certainly harbor against another, in situations so capable of abuse. Besides, it corresponds with the words of the Constitution, if the State demanding has a jurisdiction, although it might not be an exclusive And these observations would have equal weight if the Federal courts in Virginia could animadvert on crimes arising within the limits of Pennsylvania. But the Constitution directs that trials shall be held in the State where crimes shall have been committed.""

one.

6

Mr. Randolph said he further differed from the attorneygeneral of Virginia in not discovering the disability of Virginia to deliver up the offenders. It had sometimes been fancied that by the delivering up was meant only that the State from which the demand was made should permit the fugitives to be apprehended within its territory, or express an approbation that they might be; but as a State could not be said to deliver up without being active, and as it might disturb the tranquillity of one State if the officers of another were at liberty to seize a criminal in its limits, the natural and safe interpretation was that the delivery must come from Virginia. It seemed that to this duty the executive of Virginia offered no objection, but contended that her constitution and laws and those of the United States being silent as to the manner and particulars of arrest and delivery, they could not as yet move in the affair. Mr. Randolph said:

66

To deliver up is an acknowledged Federal duty; and the law couples with it the right of using all incidental means in order to discharge it. I will not inquire here how far these incidental means, if opposed to the constitution and laws of Virginia, ought, notwithstanding, to be exercised; because McGuire and his associates may be surrendered without calling upon any public officer of that State. Private persons may be employed, and clothed with a a special authority. The attorney-general agrees that a law of the

United States might so ordain; and wherein does a genuine distinction consist between a power deducible from the Constitution, as incidental to a duty imposed by that Constitution, and a power given by Congress as auxiliary to the execution of such a duty? Money, indeed, must be expended; and a State may suspend its exertions until the preliminary proofs are adduced. I cannot undertake to foresee whether the expending State will be reimbursed. If the Constitution will uphold such a claim, it will, doubtless, be enforced. If it will not, it must be remembered that that instrument was adopted with perfect free will.

"From these premises I must conclude that it would have been more precise in the governor of Pennsylvania to transmit to the governor of Virginia an authenticated copy of the law declaring the offence; that it was essential that he should transmit sufficient evidence of McGuire and others having fled from the justice of the former, and being found in the latter; that, without that evidence the executive of Virginia ought not to have delivered them up; that with it they ought not to refuse."

§ 533. Act of 1793. On October 27, 1791, President Washington laid the preceding report of Edmund Randolph, together with the correspondence between the governors of Pennsylvania and Virginia, before Congress. The record of the proceedings of Congress on the subject is very meagre. The bill to give effect to the constitutional provision was originated in the Senate, whose debates were not then published. It was reported by Mr. Cabot, a senator from Massachusetts, from a committee appointed to consider the subject, and the first record we find is that on January 4, 1793, the Senate resumed the second reading of the bill and the consideration of the report of the committee thereon, and that after debate the matter was further postponed. On January 18, 1793, the bill was passed and sent to the House. On January 21, it was read twice in the House and committed. On February 4, the House resolved itself into a committee of the whole on the subject, and after some debate the chairman reported an amendment, which was read and agreed to, and the bill, with the amendment, was ordered to lie on the table. On the following day, the bill, together with the amendment agreed on, was read the

third time, and was passed by a vote of 48 yeas to 7 nays. The amendment of the House consisted in striking out the word" deemed" in the first section. On the same day, February 5, the amendment of the House was agreed to by the Senate; and on February 12, 1793, the act was approved by the President. This act runs as follows:

Chap. VII. An Act respecting Fugitives from Justice, and persons escaping from the Service of their Masters.

SECTION 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.

SECT. 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.2

1 Benton's Abridgment, 417, and note.

21 Stat. at L. 302.

The place in the first section from which the word "deemed " was stricken is matter of conjecture, but the only place where it seems that the word could have stood is between the words "person" and "as," making the original clause read "any person deemed as a fugitive from justice;" or between the words "as" and "authentic," which would make the original bill read "certified as deemed authentic," instead of " certified as authentic," as the act runs.

The act contains two other sections, which relate to the recovery of fugitives from labor. The abolition of slavery has rendered it unnecessary to consider those sections in this place. § 534. Act of 1793 reproduced in Revised Statutes. - The act above quoted has been reproduced in the Revised Statutes of the United States in the following form:

"SECT. 5278. Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person 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 has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause 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. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. 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.

"SECT. 5279. Any agent so appointed who receives the fugitive into his custody, shall be empowered to transport him to the State or Territory from which he has fled. And every person who, by force, sets at liberty or rescues the fugitive from such agent while so transporting him, shall be fined not more than five hundred dollars or imprisoned not more than one year."

The act of 1793 is not, however, by any means to be considered as a finality. Congress might enact further laws covering the whole ground, or might impose the duty of arresting and surrendering fugitives upon the Federal authorities. There is nothing in the Constitution that requires the demand to be made upon the governor of a State, or upon any other State authority, executive or judicial.1

§ 535. Constitutionality of Act of 1793. The constitutionality of the act of 1793 was considered by the Supreme Court of the United States in the case of Prigg v. Commonwealth of Pennsylvania, in 1843. That case involved only the sections of the act relating to the recovery of fugitive slaves, but Mr. Justice Story in an opinion which, so far as it related to the question of the constitutionality of the law,

1 The Nation, vol. xxviii. pp. 70, 98. On March 11, 1840, Mr. Lumpkin, of Georgia, submitted to the Senate a set of resolutions of the legislature of that State, with accompanying documents, in favor of Congress amending the act of Feb. 12, 1793, to carry into effect sec. 2, art. 4 of the Federal Constitution, relating to surrender of fugitives from justice between the States, so as to authorize, (1) the demand to be made on the circuit judge of the United States having jurisdiction in the State where the fugitive might be found; (2) to require such judge, upon demand being made in due form of law, to issue his warrant, to be directed to the marshal of the United States in the said State, to arrest and deliver the fugitive to the agent duly authorized to receive him, who should be named in the warrant; (3) to require each marshal to whom any such warrant should be delivered, forthwith to execute it; (4) and to make it obligatory upon said district judge mentioned in said act to surrender any person who might be found in any State or Territory, and who was charged in any other State or Territory with the commission of any act which constituted a crime by the laws of said State or Territory where he was so charged, to the executive authority of the State or Territory where the offence was alleged to have been committed.. Sen. Docs., vol. iv., 26th Cong. 1st Sess. (273).

2 16 Pet. 539. Mr. Justice Bradley, delivering the opinion of the majority of the Supreme Court in Ex parte Siebold, 100 U. S. 371, 391, said that that court decided in Kentucky v. Denison (24 How. 66), that Congress, by the act of 1793, imposed a duty upon the governor of a State respecting the surrender of fugitives from justice which it had no authority to impose, and which the government of the United States could not enforce, except through its own agents. At the same time, however, the court said that Congress might authorize a particular State officer to perform a particular duty, and to this extent the act of 1793 was held to be valid. The power to authorize a State officer to do a particular thing is not correlative to the power to coerce him if he declines. Matter of Briscoe, 51 How. Pr. 422.