There are two classes of provisions in the Constitution, as to which this question may arise.

Constitution of the United States do no extend | render of fugitives is deemed to be a proper to the States. subject for treaty; therefore it is competent to I now return to the text of the Constitution them to make treaties in relation to that subitself. It was said in the argument that by ject. I further admit that if a treaty had been that instrument the whole foreign intercourse made by which the federal government had of the country was confided to the federal gov-bound itself to surrender fugitives to a foreign ernment. That as between foreign nations and nation, and one had been arrested under the the United States, the individual States are not treaty, for the purpose of being surrendered, known. That they are known only in their and the judicial authority of Vermont had disconfederated character as the United States. charged him upon habeas corpus, then it might That the question as to the surrender of fugi- be said that such discharge was repugnant to tives from justice, being a national one, it fol- the treaty. But the question here is, not whethlows as a consequence that it can only be decid- er the act of the Governor of Vermont is reed and acted upon by the United States. pugnant to a treaty, for there exists none in It is admitted that the regulation of our for- relation to the subject; but the question is, eign intercourse is confided to the federal gov- whether it is repugnant to the Constitution, beernment. But, that the proposition thus gen-cause, by that the President and Senate have erally propounded may be reduced to a defi- power to make treaties for the surrender of nite form; that we may have some standard of fugitives, but which power they have not exepractical application by which to test the na- cuted. ture, character, and extent of this power over foreign intercourse, and its bearing upon the present question, it becomes necessary to examine the provisions of the Constitution which relate to it; for it is just that, and that only, which the provisions of that instrument have made it. The only clauses of the Constitution, as far as I am informed, which relate to our foreign intercourse, are: 1. The one gives to the President, with the advice and consent of the Senate, power to make treaties, and to nominate, and, with the advice and consent of the Senate, to appoint ambassadors, other public ministers, and consuls. 2. That which gives to the President alone, power to receive ambassadors, and other public ministers. 3. That which absolutely prohibits the States from entering into any treaty, alliance, or confederation; and, lastly, that which prohibits them, without the consent of Congress, from entering into any agreement or compact with a foreign power. Thus it appears that the whole power of foreign intercourse granted to the federal government consists in this, that while it is authorized, through the President and Senate, to make treaties, the States are prohibited from entering into any treaty, agreement, or compact, with a foreign State. Now, there is nothing in the record to show that Vermont has violated this prohibition in the Constitution, because it does not appear that that State has entered into any treaty, agreement, or compact, whatsoever, with any foreign State.

The only argument, then, which can be urged to prove that the act done by the Governor of Vermont is a violation of these provisions of the Constitution, must be this, if not in form, certainly in effect: The President and Senate have power to make treaties with foreign states, but Vermont has surrendered to 589] a foreign state a fugitive from justice who was within her jurisdiction; therefore Vermont has violated that part of the Constitution which authorized the President and Senate to make treaties. Can such a conclusion follow from such premises? I would respectfully say, that to me it seems to be a non sequitur. I am ready to admit that the President and Senate can make treaties, which are not them selves repugnant to the Constitution. I further admit that, as by the usages of nations, as well as by the practice of the United States, the sur

The first is, where the Constitution operates, per se, by its own intrinsic energy. In cases of this class, it is not necessary that any power should be exercised by any department of the federal government, to bring it into active operation. The Constitution is, in this class of its provisions, a perpetually self-existing impediment to any action on the part of the States, on the subjects to which they relate.

Thus, to exemplify: it declares that no State shall pass a "bill of attainder, ex post facto law, or law impairing the obligation of contracts." Now, if a State were to pass either of the kinds of law which are thus prohibited, such a State law, or any authority exercised under it, would necessarily be repugnant to the Constitution. The thing done would be in direct opposition to the supreme law of the land, which had commanded that it should not be done. This class of cases, where there is an express prohibition, has no relation whatever to any conflict between the powers granted to the federal government, and those reserved to the States. Such a State law as I have just supposed, would be equally repugnant to the Constitution, whether there was or was not any power granted to the federal government over the subject on which a State law operated. This class embraces also certain cases in which a power, such as had been previously exercised by the States, is granted to the federal government, in terms which import exclusion: such, for example, as the power granted to Congress, of exclusive legislation over the District of Columbia. In such a case, it has been held that although there is no express prohibition upon the States, yet the terms of the grant, by necessary construction, imply it; because a provision that one government shall exer- [*590 cise exclusive power, is tantamount to a declaration that no other shall; for if any other could, it would cease to be exclusive; and such a declaration is therefore in effect a prohibition. Here, too, then, any action on the part of a State upon a subject thus exclusively granted to the federal government, would be repugnant to the Constitution, operating by its own intrinsic energy, without any action by the federal government; because, as to such cases, the supreme law of the land has declared, in effect,

that no State shall enter upon this field of

power.

The second class of constitutional provisions, as to which this question of repugnancy may arise, consists of those powers granted to the federal government, which the States previously possessed; where there is nothing in the terms of the grant which imports exclusion, and where there is no express prohibition upon the States.

As to this class of powers, the great constitutional problem to be solved is, whether any of them can be construed as being exclusive. If they can, then the necessary consequence is that the States cannot exercise them, whether the federal government shall or shall not think proper to execute them. If, on the contrary, they are not exclusive but concurrent, then the States may rightfully exercise them; and no question of repugnancy can ever rise whilst the power remains dormant and unexecuted by the federal government. Such a question can only occur when the actual exercise of such a power by the States comes into direct conflict with the actual exercise of the same power by the federal government. This characteristic of concurrent powers is illustrated by the familiar example of the power of taxation. Thus, although the power of laying and collecting taxes is specifically granted to Congress, yet the States, as we all know, are in the habitual exercise of the same power over the same people, and the same objects of taxation, and at the same time, as the federal government; except when the States are restrained by an express prohibition from acting on particular objects; that is, from laying any imposts or duties on imports or exports, beyond what may be absolutely necessary for executing their inspection laws. And but for that prohibition, I doubt not but that the States would have had as much power to lay imposts or duties on imports or exports, as to impose a tax on any other subject of taxation.

powers granted to the federal government; if we were to apply to its construction the maxim so well founded in reason, expressio unius, est exclusio alterius, it would seem to lead to the conclusion that all the powers were expressly prohibited which were intended to be prohibited; unless in cases of such necessary and inevitable construction as those in which the power is granted in terms of exclusion; which, as I have said, would cease to be exclusive if the States could still exercise them, and which therefore present a case of absolute incompatibility.

From these general principles I now proceed to the examination of some of the cases in this court, in relation to this question.

In Sturges v. Crowninshield, 3 Wheat. 122, there is a good deal of discussion on this subject. In page 193 of that case, the Chief Justice says: "These powers (he is speaking of the powers granted to Congress) proceed not from the people of America, but from the people of the several States; and remain after the adoption of the Constitution what they were before, except so far as they may be abridged by that instrument. In some instances, as in making treaties, we find an express prohibition; and this shows the sense of the convention to have been that the mere grant of a power to Congress did not imply a prohibition on the States to exercise the same power. But it has never been supposed that this concurrent power of legislation extended to every possible case in which its exercise by the States has not been expressly prohibited. The confusion resulting from such a practice would be endless. The principle laid down by the counsel for the plaintiff, in this respect, is undoubtedly correct. Whenever the terms in which a power is granted to Congress, or the nature of the power require that it should be exercised exclusively by Congress, the subject is as completely taken from the State legislatures as if they had been expressly forbidden to act on it." After these

"Is the power to establish uniform laws on the subject of bankruptcies, throughout the United States, of this description?" That is, as explained in the immediately preceding paragraph, one where the terms in which the power is granted to Congress, or the nature of the power, required that it should be exclusively exercised by Congress.

I hold the following proposition to be main-general remarks, he propounds this question: tainable: That wherever a power, such as the States originally possessed, has been granted to the federal government, and the terms of the grant do not import exclusion, and there is no express prohibition upon the States, and the power granted to the federal government is dormant and unexecuted; there the States still retain power to act upon the subject. And I place this upon the ground that in such a case After much other reasoning on the subject, the question of repugnancy cannot occur, until and, amongst other difficulties, stating that of the power is executed by the federal govern- discriminating with any accuracy between inment. It is not repugnant to the Constitution, solvent and bankrupt laws, we find him using because there is not in that instrument either the following language: "It does not appear an express prohibition, nor that which is im- to be a violent construction of the Constitution, plied by necessary construction arising from and is certainly a convenient one, to [*592 words of exclusion. There is, therefore, noth-consider the power of the States as existing 591] ing in the Constitution itself, operat-over such cases as the laws of the Union may ing by itself, as it does in cases of express pro- not reach. But be this as it may, the power hibition or terms of exclusion, to which the ex- granted to Congress may be exercised or deercise of such a power by the States is repug-clined, as the wisdom of that body shall denant, or with which it is utterly incompatible. cide. If, in the opinion of Congress, uniform It is not repugnant to any law passed or treaty made by the United States, because my proposition in terms assumes that no such law has been passed or treaty made.

laws concerning bankruptcies ought not to be established, it does not follow that partial laws may not exist, or that State legislation on the subject must cease. It is not the mere existI will add, in support of this view, that as ence of the power, but its exercise, which is inthe Constitution contains several express prohi-compatible with the exercise of the same power bitions upon the States, from the exercise of by the States. It is not the right to establish

We will assume, for the present, and for the purposes of the argument, that an agreement to surrender, on which the arrest was founded, existed between the executive chief magistrate of Vermont, and the Queen of Great Britain; that William Brown was the agent of Great Britain, and represented that kingdom; that Governor Jennison represented Vermont; and that the arrest was made in part execution of such previous agreement.

perative on Congress to vest all the judicial | of the State and the Province of Canada, to power of the United States in the courts of the the end that the said George Holmes might be United States; that the judicial power was thence conveyed to the District of Quebec, and declared to extend to all cases of admiralty and there be dealt with as to law and justice appermaritime jurisdiction, and that, therefore, by tained. the terms in which the clause was expressed, the jurisdiction was made exclusive. Such, also, seems to be the principle laid down in 1 Kent's Commentaries, 351, where the author says: "Whatever admiralty and maritime jurisdiction the district courts possess, would seem to be exclusive; for the Constitution declares that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction; and the Act of Congress of 1789, says "that the district courts shall have exclusive, original cognizance of all civil causes of admiralty and maritime jurisdiction." It seems to me, then, that neither of these cases impugns the principles which I have laid down.

I consider it wholly irrelative to this case to inquire whether the authority exercised by the Governor of Vermont was, or was not justified by the Constitution and laws of that State. Not only would the words of the act of Congress, under which this case has been brought up, clearly require this construction, but this court has expressly decided the question, in the case of Jackson v. Lamphire, 3 Peters, 280, in which they say that this court has no authority, on a writ of error from a State court, to declare a State law void on account of its collision with a State Constitution.

Upon these grounds, I am of opinion that this case does not come within the provisions of the 25th section of the Judiciary Act; and, consequently, that the writ of error ought to be dismissed for want of jurisdiction.

Mr. Justice Catron.

To distinguish this cause from others that often arise in the States where statutes exist authorizing the arrest of fugitives from justice from other States and foreign governments, it becomes necessary to ascertain precisely what the case before us is.

First, it must be recollected, there is no statute in Vermont prohibiting those charged with crimes in other States, or foreign countries, 595*] *from coming into that state, or authorizing their apprehension if they come there: so we understand the fact to be; and that the authority to issue the warrant of arrest in this case was assumed by the governor, as chief magistrate and representative of the State.

Holmes had been guilty of no crime against the laws of Vermont; but the warrant recites he was a subject of the Province of Lower Canada; that he stood indicted for the crime of murder there; and that it was fit and expedient that he should be made amenable to the laws of that province for the offense.

The sheriff, in his return to the writ of habeas corpus, certifies that this warrant was the sole cause of detention and imprisonment. He was not commanded to hold Holmes to answer to the authorities of Vermont, but ordered forthwith to convey and deliver him to William Brown, the agent of Canada, or to such person or persons, as by the laws of said province should be authorized to receive the same; at some convenient place on the confines

In such case, I admit, the act would have been one as of nation with nation, and governed by the laws of nations; that the agreement would have been prohibited by the Constitution, and the arrest, in part execution of it, void; and that the judgment of the State court in favor of the validity of the arrest should be reversed.

But that court was not called on to decide (taking the facts assumed to exist), nor are we permitted to determine, in this case, how far the State courts and magistrates may go in dealing with fugitives from justice coming within their limits, when executing the statutes of the States. No such question has been raised at the bar, nor has it been considered of by the bench.

This is the substance of my opinion drawn up at length, on the point in this cause, on which, for a time, I thought the judgment below ought to be reversed. I founded myself upon the fact that an agreement to arrest and surrender Holmes had been made between Vermont and Great Britain, before the arrest took place; and that it was made in part execution of such previous agreement. Neither on the argument of the cause, nor at any time previous to hearing read the opinion of my four brethren, drawn up by the Chief Justice, and with the result of which I had intended to concur, had it occurred to me the fact was doubtful. In that opinion, however, it is [*596 declared that "nothing appears that a demand was made by Canada of Holmes; and we do not act upon the supposition such a demand was made, nor consider it in the case." Now, if no demand was made, I take it as granted no agreement existed between Great Britain and Vermont for the surrender of Holmes. To assume that a general regulation by treaty, or agreement, existed between the State and the foreign kingdom on which the Governor's warrant founds itself, and from which the regulation must be inferred, would be charging the chief magistrate of Vermont with a palpable violation of the Constitution of the United States, on the ground that he assumed the power of foreign intercourse. There is nothing in the record to establish such a conclusion; nor can it be assumed, with any propriety, on mere conjecture. It is manifest to my mind, the facts stated in the warrant have reference to this individual case. The arrest could, therefore, not have been made in part execution of any compact or agreement between the State and kingdom; it follows a judgment of reversal could only be founded on the intention of the Governor to make a future agreement, at

the time Holmes should be surrendered to |able argument delivered before this court for Brown, or to some sheriff, or other officer, or the plaintiff in error, and after having bestowed agent of Canada, having lawful authority to much reflection on this subject, and written receive the prisoner. The intent, we are not out my views on every point involved, as the authorized to try; we only have jurisdiction to safest mode of testing of their accuracy; I have examine into acts done; and must proceed, if come to the conclusion, divided as the court is, at all, on some past violation of the Constitu- that it is better for the country this question tion of the United States, supposed to be that should for the present remain open. clause which declares, "no State shall, without the consent of Congress, enter into any agreement or compact with another State, or with a foreign power."