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would have been more satisfactory, if not en-ion, and consequently not considered. When tirely different. Where this chain will end no this course shall have been taken by the court, one can tell.

mine will conform to whatever conclusion may In forming my opinion in this, and the case be adopted; but while those cases referred to of Holmes, I have been fully convinced that it by me continue unnoticed, my judgment will is founded on principles too well established be guided by them as authoritative; and until by the adjudged cases, books of authority, and they shall be reconsidered and overruled, I the decisions of this court, to be shaken by cannot but consider them to be *more (*613 the case of Weston v. Charleston, or those firmly rooted and planted in the law, more which are dependent upon it; believing that congenial to its principles, its policy, and the that case rests alone on its own unsupported reasons on which it is founded, than any deauthority. I cannot recognize it as a basis for cisions which have been since made to the this, or the case of Holmes. Nor can I feel contrary. If the purposes of justice require a bound to consider the point as settled so as to further expansion of our appellate power, it exclude further consideration, by reversing the is the duty of Congress to prescribe it, but course now taken by the court; and looking while the law remains unchanged by legis. through the cases of habeas corpus and man- lative power, I cannot cease to deprecate the damus, to the case of prohibition on which they onward progress of jurisdiction, by step on rest, bringing the exercise of appellate power of step, from case to case, to which no limit seems this court over that case, to the test of the assignable, so long as the emergency of a common law, the Judiciary Act, and the de- cause can be held to justify the assumed neces. cisions of this court, cited in this, and the sity for the exercise of that power, where it opinion in Holmes' case, which have hitherto is not clearly within the provisions of the remained without notice in argument or opin. Judiciary Act.


"No. II. GEORGE HOLMES, Plaintiff in Error,

SILAS H. JENNISON, Governor of the State

of Vermont, and John Starkweather, Sheriff Opinion by Mr. Justice Baldwin.
of the County of Washington, in the said
State of Vermont, and their Successors in
Office, Defendants in Error.

(Reported at page 640 of this vol.) Concurring most fully and cordially in the , But while I admit the competency of the treaopinions delivered by those of my brethren ty-making power to compel, I utterly deny its who are opposed to any action by this court on power to prevent the expulsion of a fugitive this case, I have nothing to add to the reasons from justice from the territory of a State, purassigned by them respectively, lest it might suant to its laws, or the general authority imply my want of confidence in the grounds vested in its executive or other appropriate of which they have taken, and in my mind main- ficers, to administer and enforce its regulatained with conclusive force. There are, how tions of internal police. ever, two subjects of high consideration in This distinction between the power to comvolved in this case, which I feel constrained to pel and the power to prevent the surrender of notice; as my opinion would have been gov- a fugitive, is visible in the whole frame of the erned by them had there been no other grounds Constitution, as well in the general lines which for my declining to interfere with the order it designates, in separating the powers of the of the Supreme Court of Vermont, remanding federal and State governments, by grants, prothe relator to the custody whence he was hibitions, and separations, as by its more spe. brought before them by the writ of habeas cific provisions. corpus.

There cannot be found a clause in the whole 1. The Constitution of the United States instrument, which in terms or by any fair conconfers no power on any department of the struction, can be made to bring the power to federal government to prevent a State or its compel a State not to surrender, within any officers from sending out of its territory a enumerated subject over which Congress can person in the situation of Holmes, the relator. legislate, unless it is sought as one of a va

2. That a writ of error does lie from this to grant nature, to be exercised under such of the a State court, to revise their proceedings on various items specified as may be suggested by & writ of habeas corpus.

a train of ingenious, refined, and subtle reason. That the treaty-making power of the Con- ing, from one implication to another, till there stitution is competent to bind the States by a is found some hook whereby to connect this stipulation to surrender fugitives from justice, with some granted power. Nay, it is cauis not denied by any; nor that where such tiously omitted in the prohibition on the States power is executed by a treaty, a State is under to use any language which can be tortured into an obligation to surrender: but that while such a reference to the subject matter; and as the power remains dormant or contingent, the obli- nature of the treaty-making power precludes gation does not exist, and that Congress have any enumeration of the subjects of its exercise, no power to impose it has been too clearly e8- it is left with no other prescribed limitation tablished by my brethren, to leave it in my than that treaties, to have their constitutional power to add to the weight of their reasoning. effect, must be mado “under the authority of

the United States. This power must then be as free and full where no demand is made, as
615') called into action, and "act on the sub- if the Constitution had been wholly silent on
ject, before a State can be deprived of the the subject. And if it had been so silent, the
right to surrender, or retain a fugitive at its only difference would have been, that though
pleasure; a right which each State possessed in there would have been no obligation to surren.
its plenitude, on the dissolution of the articles der on a demand, there would have been the
of confederacy and which remained unim- same right and power to do it as now exists in
paired, till it became party to the Constitution, each State in respect to their respective fugi-
on its adoption by the people thereof, whereby tives; or as would exist under a treaty-making
they held the power subject to such restraints provision for the reciprocal delivery of fugi-
as treaty stipulations might impose in future. | tives from the Canadas or the States.
Without such stipulation, the whole subject No injunction of the Constitution can be
matter of fugitives of any description, from a violated, nor the faith of treaties impaired,
foreign nation, or any of its colonies or depend by each State or province refusing to be made
encies, is reserved to the respective States as a Botany Bay, an asylum, or even the recepta-
fully as before the Constitution; but, with such cle of the vagabonds, the criminals, or convicts
stipulation in a treaty, I admit the State is as of the other; any duty of State to State, of
much bound to make the surrender, as if it State to the Union, and the United States to for-
had been a subject of express delegation of eign powers, is fully and faithfully executed by
power to the President and Senate; or as if the the performance of the duties and stipulations
same provision had been made in relation to imposed or made. But no political community,
foreign fugitives from justice, or service, as no municipal corporation, can be under any
those from the respective States, but which is obligation to suffer a moral pestilence to pol-
guardedly omitted.

lute its air, or contagion, of the most corruptIn the second clause of the second section of ing and demoralizing influence, to spread among the fourth article, the Constitution provides, its citizens, by the conduct and exam. [*818 that “A person charged in any State with trea- ple of men, who, having forfeited the protecson, felony, or other crime, who shall flee from tion of their own government by their crimes, justice and be found in another State, shall, on claim to be rescued from the consequences by demand of the executive authority of the State an appeal to the same Constitution and laws, from which he fled, be delivered up to be re- under which our own citizens are not, and moved to the State from which he fled.”. A cannot be screened from punishment, when it corresponding provision is made for fugitives is merited by their conduct. No State can be from service or labor; and Congress, by the compelled to admit, retain, or support foreign Act of 1793, have prescribed the mode in which paupers, or those from another State; they the provision of the Constitution shall be car. may be removed or sent where they came; ried into effect. 1 Story, 284, 285.

not because poverty is a crime, but because it It will not be pretended that these provi- is a misfortune not to be mitigated or relieved sions do not impose upon the States of this by the compulsory contributions of those Union an obligation as imperative, and impair among whom they throw themselves, or are cast their reserved rights to the same extent as a by_their governments for maintenance. similar stipulation in a treaty between the Every State has acknowledged power to United States and any foreign state; let it pass, and enforce quarantine, health, and in. then be assumed that there was such a treaty spection laws, to prevent the introduction of with Great Britain, in relation to fugitives disease, pestilence, or unwholesome provisions; from justice in Canada, and a stronger case such laws interfere with no powers of Con: cannot be supposed; the question it involves is gress or treaty stipulations; they relate to innot difficult of solution.

ternal police, and are subjects of domestic regu. The object and great purpose of the Consti- lation within each State, over which no autution and Congress, in one case, and of the thority can be exercised by any power under treaty in the other, is to make it the duty of the Constitution, save by requiring the consent the State and its officers to make the surrender of Congress to the imposition of duties on exon a demand; but it does not follow that it may ports and imports, and their payment into the not be done voluntarily or without demand; to Treasury of the United States. 11 Pet. 102, take the fugitive to the border and force him 130, etc.; 9 Wheat. 203, etc.; 12 Wheat. 436, to pass the line, whether the authorities of the etc.; vide section 10, article 1, clause 2. “These ad acent States or provinces are desirous, or laws form a portion of that immense mass of even willing to receive him or not, is but an legislation which embraces everything within ordinary police power. This is the true point the territory of a State not surrendered to the in issue; whether a State is prohibited by the general government,” etc. 9 Wheat. 203. "No Constitution from doing of its own accord an direct general power over these subjects is act which it is bound to do, whenever demand granted to Congress, and consequently they ed pursuant to a law or a treaty of the United remain subject to State legislation." Ib. "The States, and which it might do or refuse, if the constitutionality of such laws has never, so far subject was neither within the law or treaty as we have been informed, been denied” (Ib. making power of the United States. Had no 205), and are considered as flowing from the provision been made for the reclamation acknowledged power of a State to provide for fugitives from the States, there could be no the health of its citizens." Ib. pretense for denying to the States an unlimited “The power to direct the removal of gun. discretion over the whole subject; the Consti- powder, is a branch of the police power which tution has put one single limitation on this dis unquestionably remains with the States." 12 cretion, in case of a demand from the execu- Wheat. 443. "We are not sure that this may tive of another State; leaving that discretion not be classed among inspection laws. The

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removal or destruction of infectious or unsound safety, happiness, and prosperity of its people; articles is undoubtedly an exercise of that and to provide for its general welfare, by any power, and forms an express exception to the and every act of legislation which it may deem prohibition we are considering. Indeed, the conducive to these ends, where the power over laws of the United States expressly sanction the particular subject, or the manner of its exthe health laws of a State." Ib. 444. These ercise, is not surrendered or restrained in the principles were re-affirmed in The City of New manner just stated. That all those powers York v. Miln, in language worthy of repetition, which relate to merely municipal regulations, and most appropriate to this case in all its or what may, perhaps, more properly be called bearings:

'internal police, are not thus surrendered or "That the State of New York possessed restrained; and that, consequently, in relation power to pass this law (respecting foreign pau- to these, the authority of a State is complete, pers, before the adoption of the Constitution unqualified, and exclusive.” 11 Pet. 139. of the United States, might probably be taken “We think it as competent and as necessary as a truism, without the necessity of proof. for a State to provide precautionary measures But as it may tend to present it in a clear against the moral pestilence of paupers, vagapoint of view, we will quote a few passages bonds, and possibly convicts, as it is to guard from a standard writer upon public law, show- against the physical pestilence which may arise ing the origin and character of this power.” from unsound and infectious articles import

Vattel, book 2, ch. 7, sec. 94.—"The sover- ed; or from a ship, the crew of which may be eign may forbid the entrance of his territory, laboring under an infectious disease.” Ib. 143. either to foreigners in general, or in particular These principles were not declared for the cases, or to certain persons, or for certain par. first time in the case of Miln; they flowed from ticular purposes, according as he may think it those which were established as unquestiona. advantageous to the state.”

ble in The United States v. Bevans, where this Vattel, book 2, ch. 8, sec. 100.—“Since the language is used: lord of the territory may, whenever he thinks "What, then, is the extent of jurisdiction proper forbid its being entered; he has, no which a State possesses ? doubt, a power to annex what conditions he "We answer without hesitation, the jurispleases to the permission to enter.”

diction of a State is co-extensive with its terri. “The power, then, of New York to pass tory; co-extensive with its legislative power. this law, having undeniably existed at the for- "The place described is unquestionably withmation of the Constitution, the simple inquiry in the original territory of Massachusetts. It is, whether by that instrument it was taken is, then, within the jurisdiction of Massachufrom the State and granted to Congress; for if setts, unless that jurisdiction has been ceded it were not, it yet remains with them.”

to the United States (3 Wheat. 386, 387) by a "If, as we think, it be a regulation, not of cession of territory, or, which is essentially the commerce, but of police, then it is not taken same, of general jurisdiction.” Ib. 388. from the States. To decide this, let us exam- "It is not questioned that whatever may be ine its purpose, the end to be attained, and the necessary to the full and unlimited exercise of means of its attainment."

admiralty and maritime jurisdiction is in the "It is apparent from the whole scope of the government of the Union. Congress may pass law that the object of the Legislature was to all laws which are necessary and proper for prevent New York from being burdened by giving the most complete effect to this power. an influx of persons brought thither in ships Still the general jurisdiction over the place, either from foreign countries or from any subject to this grant of power, adheres to the 617*) other of the States; and for that pur territory as a portion of sovereignty not yet pose a report was required of the names, places given away. The residuary powers of legislaof birth, etc., of all passengers, that the nec- tion are still in Massachusetts. Suppose, for essary steps might be taken by the city au example, the power of regulating trade had not thorities to prevent them from becoming been given to the general government. Would chargeable as paupers.”

this extension of judicial power to all cases “The power reserved to the several States of admiralty and maritime jurisdiction have will extend to all the objects which, in the devested Massachusetts of the power to regu. ordinary course of affairs, concern the liber late the trade of her bay?" Ib. 389. ties, lives and properties of the people, and the It would be at least superfluous, if not preinternal order, improvement, and prosperity of sumptuous in me, to attempt to illustrate or the State." 11 Peters, 132, 133.

enforce the soundness of these principles, which After a review of Gibbons v. Ogden, and this court declare to be impregnable positions, Brown v. Maryland, and showing that their on which they plant their opinion. That they opinions are not in collision with the princi. may neither be shaken nor impaired by any ples of either of these cases, the court say: future collision between them, and any opin"But we do not place our opinion on this ions which may be founded on a contrary conground. We choose rather to plant ourselves struction of the Constitution, is most ardently on what we consider an impregnable position. to be desired by all who wish to see the federal They are these--That a State has the same and State governments move within their reundeniable and unlimited jurisdiction over all spective orbits, with the same harmony for the persons and things within its territorial limits future, *as they have done for the past. (* 618 as any foreign nation, where that jurisdiction The continuance of this harmony will, in my is not surrendered or restrained by the Consti. opinion, be in imminent danger, not only of tution of the United States. That by virtue of interruption, but of extinction; whenever the this, it is not only the right, but the bounden course of this court shall be such as to subvert and solemn duty of a State, to advance the l the great principles of constitutional jurispru.

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dence, on which it has defined the line of sepa- garded in public opinion, and their reversal tation between the powers which are granted follow, it will not be done by the establishto the United States, and those prohibited or ment of those principles on which it is now reserved to the States, or the people thereof attempted to enlarge the prohibitions on the respectively. Nor is there one among these States, and to expand the powers of Congress, latter powers which it is so dangerous to by implication upon implication, to effect both attempt to impair as that of internal police; objects by ingenious or farfetched supposi. and especially that portion of it which relates tions or assumptions. Ingenuity, talents, and to fugitives, vagabonds, criminals, or convicts, subtility can work a countermine under the whether they have fled from justice before or Constitution, by which the contrary effect may after trial; for if a State cannot expel from be produced; whereby the reserved powers of her territory this species of pestilence, so in the States may absorb as much of the granted fectious, contagious, and fatal to the morals of powers of the general government, as the adopthe community, in which they are suffered to tion of the grounds on which the relator's case mix and move unmolested, her power of police has been placed would take from those which is a shadow, a farce, while this most feculent have neither been granted by, or prohibited mass of corruption remains a public nuisance, to the States. Equally dreading and avoiding which the power of State is incompetent to both extremes, I am content to take the Con. abate.

stitution as it has hitherto been expounded by It is but a poor and meagre remnant of the this court, on all subjects connected with the once sovereign power of the States, a miserable *cause now before us; in my opinion (*619 shred and patch of independence, which the it leaves no open point, even admitting what is Constitution has not taken from them, if in known not to exist, that there was a treaty the regulation of its internal police, State sov. stipulation on the subject. But without such ereignty has become so short of authority as stipulation, the relator's case is most bald and to be competent only to exclude paupers, who barren of merits; it rests upon doctrines not to may be a burden on the pockets of its citizens; be sanctioned consistently with past adjudicaunsound, infectious articles, or diseases, which tions, which, in The United States v. Bevans, may affect their bodily health; and utterly asserted the jurisdiction and legislative power powerless to exclude those moral ulcers on the of a State to be co-extensive with its territory, body political, which corrupt its vitals and over all subjects not delegated to the general demoralize its members. If there is any one government; and in Gibbons v. Ogden; Brown subject on which this court should abstain v. Maryland; and New York v. Miln, declared from any course of reasoning, tending to ex. that no power over the internal police of a pand the granted powers of the Constitution, State had been so delegated by the Constituso as to bring internal police within the law tion; but was reserved exclusively to the or treaty-making power of the United States, States. I deem it wholly unnecessary to make by including it within the prohibition on the a detailed application of those cases to the States, it is the one now before us. Nay, if present; their affinity is too visible on a comBuch construction is not unavoidable, it ought parison, to require anything more than a refernot to be given; lest we introduce into the ence to them respectively, as they are report. Constitution a more vital and pestilential dised; police is in every feature; the moral and ease than any principle on which the relator physical health of the people is the common could be rescued from the police power of Ver object of police regulations in all their ramifi. mont, would fasten on its institutions, danger- cations, as applied to the vast variety of subous as it might be, or injurious its effects. jects which they embrace, and none of which Should an adjudication so fearful in its conse are confided to any other than State power; quences be made in a case of kindred nature and all of which must remain under its exclu. with this, the people and States of this Union sive control, till the Constitution is changed. will “plant themselves” on the "impregnable The States are enjoined by the Constitution positions," taken in the opinion of this court, to surrender a fugitive from another State on in the cases quoted; and standing on grounds a demand; they will be obliged to do it under thus consecrated, refuse to surrender those a treaty stipulation to a foreign power; and rights which we had declared to be "complete, thus far, but no farther, has there been, or can unqualified, and exclusive."

be any abridgement of their power over the The power of this court is moral, not physic- subject; they cannot be deprived of their right al; it operates by its influence, by public con. of expelling from their territory those fugitives fidence in the soundness and uniformity of the who have no privileges within it; or be comprinciples on which it acts; not by its mere pelled to retain them, when they are not enti. authority as a tribunal, from which there is tled to the protection of its Constitution or no appeal; and if ever its solemn decisions laws; any refugee crosses the border at his should be overlooked by itself, or we should peril; his government may not desire to recease to respect those of our predecessors, the claim him for punishment, and be unwilling to people and the States will still adhere to them, receive him again; but that matters not to the and our successors will refuse to follow our State to which he flies; the right and power to deviations from the ancient path. It may be remove, expel, and voluntarily, to surrender the doctrine of the day that the reserved rights the fugitive, is as perfect as if it was a duty of the States are too broad and the powers of prescribed by a power paramount to that of Congress to narrow; but it will not withstand the State. the scrutiny of time, or the deliberate consid- This is, in my opinion, the turning point of eration of the principles on which the cases this case; and this right to determine what referred to have been decided, and those there persons fleeing from abroad shall be suffered to in promulgated. If they shall ever be disre-l remain a burden on its citizens for their support, or a dangerous example to the commu. the internal police of a State; or to examine nity, is so peculiarly and appropriately a sub- whether it has been exerted under the authorject of State jurisdiction, as to be incapable of ity of a State law, or by the constitutional delegation to any other power. Any action power of its chief executive magistrate. It Congress upon it would be not only an assump- suffices for all the purposes of this case that tion of ungranted power, but a direct usurpa- the subject matter is not of federal cognizance, tion of powers reserved to the States; and if but is excluded from the jurisdiction of the exercised by means of coercion, to compel a United States to its full extent, and reserved State to retain the vagabo from other for the action of another sovereighty, whose States or the border provinces, would operate power over it must remain untouched, till an more fatally on the morals of the people than amendment to the Constitution shall displace pestilence upon their health, or gunpowder on it. That this may never be done is, in my their property and their lives. Happily, such opinion, devoutly to be wished by every friend power is not visible in the Constitution, nor to the permanency of our institutions. has it been infused into it by construction; The other ground on which I am opposed to whenever internal police is the object, the pow. any interference with the proceeding of the er is excepted from every grant and reserved Supreme Court of Vermont in this matter is, to the States, in whom it remains in as full that it is not within the appellate jurisdiction and unimpaired sovereignty as their soil, which of this court, under the 25th section of the Ju. has not been granted to individuals, or ceded to diciary Act; because the order of that court on the United States; as a right of jurisdiction a habeas corpus is not a judgment on which a over the land and waters of a State, it adheres writ of error can be brought. to both, so as to be impracticable of exercise by I cannot so well define the nature and object any other power, without cession or usurpa of the writ of habeas corpus, or so well explain tion. Such is the power which the governor, as the proceedings upon it, as in the language of chief magistrate, of Vermont has exercised this court: “It has been demonstrated at the over this fugitive; in my opinion it was prop bar that the question brought forward on a erly exercised; and that no department of this habeas corpus is always distinct from that government is competent, on subjects of police, which is involved in the cause itself. The to control him or any other State officer, in question whether the individual shall be imthe execution of his or their offices.

prisoned, is always distinct from the question By the course which has been taken, all whether he shall be convicted or acquitted of danger of interfering with the relations of the the charge on which he is to be tried; and United States and foreign powers, either on therefore these questions are separated and matters of commercial intercourse or diplomay be decided in different courts." matic concern, is avoided; such interference “The decision that the individual shall be could happen only on the refusal to deliver up imprisoned, must always precede the applicathe fugitive, on the demand or request of the tion for a writ of habeas corpus; and this writ authorities of Canada; for a compliance with must always be for the purpose of revising either would rather add strength to, than tend that decision, and therefore appellate in its to weaken the pre-existing relations of amity nature." 4 Cranch, 101. “This being a mere and comity between the two nations. On the inquiry, which, without deciding upon guilt, other hand, if the delivery was spontaneous, precedes the institution of a prosecution, the and made in the true spirit of border peace and question to be determined is, whether the acmutual safety from crime, the boon would be cused shall be discharged or held to trial; and 620*) the more acceptable; or if the author if the latter, in what place they are to be ities of the State should send the fugitive back tried, and whether they shall be confined or whence he came, those of Canada would have admitted to bail. If, etc., upon inquiry it no cause of complaint, because they had made manifestly appears that no such críme has no reclamation, or because Vermont was un- been committed, or that the suspicion enterwilling to incorporate among its citizens a for- tained of the prisoner was wholly groundless, eigner whom his own government was disposed in such cases only is it lawful totally to disnot to take back. The United States cannot charge him, otherwise he must either be comcomplain, for neither their rights or power can mitted to prison, or give bail." Ib. 125, 126. be affected, unless some department of their “The Judicial Act (sec. 14) authorizes this government shall put itself in the place of Ver: court, and all the courts of the United States, mont, to determine on what subject its internal and the judges thereof, to issue the writ for system of police shall operate, and how it shall the purpose of inquiring into the cause of com. be executed; but on any other ground or pre-mitment.”. 3 Pet. 201. "It is a high prerogatext, there can be no colorable argument or tive writ, known to the common law, the great reason for such interference. That the case object of which is the liberation of those who before us is one in any way affecting our for- may be imprisoned without sufficient cause." eign relations, seems to me wholly suppositi- 'It is in the nature of a writ of error to exam. tious; and the untoward consequences which ine the legality of the commitment." Ib. 202. seem to be apprehended from affirming the It lies to a circuit court of the United States, exercise of the power of the governor, appear sitting in a State (3 Dall. 17), or to the Circuit as wholly conjectural, and without any ration of this district (3 Cranch, 448; 4 Cranch, 101); al foundation in fact or principle. But be this it is an exercise of appellate jurisdiction, and as it may, we have no warrant from the Con- we are but revising the effect of their process, stitution, and Congress can give us none, to au- *etc., under which the prisoner is de- [*621 thorize us to interfere with the exercise of a tained.” 7 Pet. 573. But it does not lie in

within every definition favor of persons committed for treason or felwhich this court has given of a regulation of lony, plainly expressed in the warrant, convict

power which


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