would have been more satisfactory, if not en- |ion, and consequently not considered. When tirely different. Where this chain will end no one can tell. In forming my opinion in this, and the case of Holmes, I have been fully convinced that it is founded on principles too well established by the adjudged cases, books of authority, and the decisions of this court, to be shaken by the case of Weston v. Charleston, or those which are dependent upon it; believing that that case rests alone on its own unsupported authority. I cannot recognize it as a basis for this, or the case of Holmes. Nor can I feel bound to consider the point as settled so as to exclude further consideration, by reversing the course now taken by the court; and looking through the cases of habeas corpus and mandamus, to the case of prohibition on which they rest, bringing the exercise of appellate power of this court over that case, to the test of the common law, the Judiciary Act, and the decisions of this court, cited in this, and the opinion in Holmes' case, which have hitherto remained without notice in argument or opin 614"] GEORGE HOLMES, Plaintiff in Error, V. this course shall have been taken by the court, mine will conform to whatever conclusion may be adopted; but while those cases referred to by me continue unnoticed, my judgment will be guided by them as authoritative; and until they shall be reconsidered and overruled, I cannot but consider them to be *more [*613 firmly rooted and planted in the law, more congenial to its principles, its policy, and the reasons on which it is founded, than any decisions which have been since made to the contrary. If the purposes of justice require a further expansion of our appellate power, it is the duty of Congress to prescribe it, but while the law remains unchanged by legislative power, I cannot cease to deprecate the onward progress of jurisdiction, by step on step, from case to case, to which no limit seems assignable, so long as the emergency of a cause can be held to justify the assumed necessity for the exercise of that power, where it is not clearly within the provisions of the Judiciary Act. *No. II. SILAS H. JENNISON, Governor of the State of Vermont, and John Starkweather, Sheriff of the County of Washington, in the said State of Vermont, and their Successors in Office, Defendants in Error. Opinion by Mr. Justice Baldwin. (Reported at page 540 of this vol.) Concurring most fully and cordially in the opinions delivered by those of my brethren who are opposed to any action by this court on this case, I have nothing to add to the reasons assigned by them respectively, lest it might imply my want of confidence in the grounds which they have taken, and in my mind maintained with conclusive force. There are, however, two subjects of high consideration involved in this case, which I feel constrained to notice; as my opinion would have been governed by them had there been no other grounds for my declining to interfere with the order of the Supreme Court of Vermont, remanding the relator to the custody whence he was brought before them by the writ of habeas corpus. 1. The Constitution of the United States confers no power on any department of the federal government to prevent a State or its officers from sending out of its territory a person in the situation of Holmes, the relator. 2. That a writ of error does lie from this to a State court, to revise their proceedings on a writ of habeas corpus. That the treaty-making power of the Constitution is competent to bind the States by a stipulation to surrender fugitives from justice, is not denied by any; nor that where such power is executed by a treaty, a State is under an obligation to surrender: but that while such power remains dormant or contingent, the obligation does not exist, and that Congress have no power to impose it has been too clearly established by my brethren, to leave it in my power to add to the weight of their reasoning. But while I admit the competency of the trea ty-making power to compel, I utterly deny its power to prevent the expulsion of a fugitive from justice from the territory of a State, pursuant to its laws, or the general authority vested in its executive or other appropriate officers, to administer and enforce its regulations of internal police. This distinction between the power to compel and the power to prevent the surrender of a fugitive, is visible in the whole frame of the Constitution, as well in the general lines which it designates, in separating the powers of the federal and State governments, by grants, prohibitions, and separations, as by its more specific provisions. There cannot be found a clause in the whole instrument, which in terms or by any fair construction, can be made to bring the power to compel a State not to surrender, within any enumerated subject over which Congress can legislate, unless it is sought as one of a vagrant nature, to be exercised under such of the various items specified as may be suggested by a train of ingenious, refined, and subtle reasoning, from one implication to another, till there is found some hook whereby to connect this with some granted power. Nay, it is cautiously omitted in the prohibition on the States to use any language which can be tortured into a reference to the subject matter; and as the nature of the treaty-making power precludes any enumeration of the subjects of its exercise, it is left with no other prescribed limitation than that treaties, to have their constitutional effect, must be made "under the authority of the United States." This power must then be 615] called into action, and act on the subject, before a State can be deprived of the right to surrender, or retain a fugitive at its pleasure; a right which each State possessed in its plenitude, on the dissolution of the articles of confederacy and which remained unimpaired, till it became party to the Constitution, on its adoption by the people thereof, whereby they held the power subject to such restraints as treaty stipulations might impose in future. Without such stipulation, the whole subject matter of fugitives of any description, from a foreign nation, or any of its colonies or dependencies, is reserved to the respective States as fully as before the Constitution; but, with such stipulation in a treaty, I admit the State is as much bound to make the surrender, as if it had been a subject of express delegation of power to the President and Senate; or as if the same provision had been made in relation to foreign fugitives from justice, or service, as those from the respective States, but which is guardedly omitted. as free and full where no demand is made, as if the Constitution had been wholly silent on the subject. And if it had been so silent, the only difference would have been, that though there would have been no obligation to surrender on a demand, there would have been the same right and power to do it as now exists in each State in respect to their respective fugitives; or as would exist under a treaty-making provision for the reciprocal delivery of fugitives from the Canadas or the States. No injunction of the Constitution can be violated, nor the faith of treaties impaired, by_each State or province refusing to be made a Botany Bay, an asylum, or even the receptacle of the vagabonds, the criminals, or convicts of the other; any duty of State to State, of State to the Union, and the United States to foreign powers, is fully and faithfully executed by the performance of the duties and stipulations imposed or made. But no political community, no municipal corporation, can be under any obligation to suffer a moral pestilence to pollute 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. [*616 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 is a misfortune not to be mitigated or relieved by the compulsory contributions of those among whom they throw themselves, or are cast by their governments for maintenance. It will not be pretended that these provisions do not impose upon the States of this Union an obligation as imperative, and impair their reserved rights to the same extent as a similar stipulation in a treaty between the United States and any foreign state; let it then be assumed that there was such a treaty with Great Britain, in relation to fugitives from justice in Canada, and a stronger case cannot be supposed; the question it involves is not difficult of solution. The object and great purpose of the Constitution and Congress, in one case, and of the treaty in the other, is to make it the duty of the State and its officers to make the surrender on a demand; but it does not follow that it may not be done voluntarily or without demand; to take the fugitive to the border and force him to pass the line, whether the authorities of the ad acent States or provinces are desirous, or even willing to receive him or not, is but an ordinary police power. This is the true point in issue; whether a State is prohibited by the Constitution from doing of its own accord an act which it is bound to do, whenever demand ed pursuant to a law or a treaty of the United States, and which it might do or refuse, if the subject was neither within the law or treaty making power of the United States. Had no provision been made for the reclamation of fugitives from the States, there could be no pretense for denying to the States an unlimited discretion over the whole subject; the Constitution has put one single limitation on this discretion, in case of a demand from the executive of another State; leaving that discretion Every State has acknowledged power to pass, and enforce quarantine, health, and inspection laws, to prevent the introduction of disease, pestilence, or unwholesome provisions; such laws interfere with no powers of Congress or treaty stipulations; they relate to internal police, and are subjects of domestic regulation within each State, over which no authority can be exercised by any power under the Constitution, save by requiring the consent of Congress to the imposition of duties on exports and imports, and their payment into the Treasury of the United States. 11 Pet. 102, 130, etc.; 9 Wheat. 203, etc.; 12 Wheat. 436, etc.; vide section 10, article 1, clause 2. "These laws form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the general government," etc. 9 Wheat. 203. "No direct general power over these subjects is granted to Congress, and consequently they remain subject to State legislation." Ib. "The constitutionality of such laws has never, so far as we have been informed, been denied" (Ib. 205), and are considered as flowing from the acknowledged power of a State to provide for the health of its citizens." Ib. "The power to direct the removal of gunpowder, is a branch of the police power which unquestionably remains with the States." 12 Wheat. 443. "We are not sure that this may not be classed among inspection laws. The removal or destruction of infectious or unsound articles is undoubtedly an exercise of that power, and forms an express exception to the prohibition we are considering. Indeed, the laws of the United States expressly sanction the health laws of a State." Ib. 444. These principles were re-affirmed in The City of New York v. Miln, in language worthy of repetition, and most appropriate to this case in all its bearings: "That the State of New York possessed power to pass this law (respecting foreign paupers, before the adoption of the Constitution of the United States, might probably be taken as a truism, without the necessity of proof. But as it may tend to present it in a clear point of view, we will quote a few passages from a standard writer upon public law, showing the origin and character of this power." Vattel, book 2, ch. 7, sec. 94.-"The sovereign may forbid the entrance of his territory, either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state." Vattel, book 2, ch. 8, sec. 100.-"Since the lord of the territory may, whenever he thinks proper forbid its being entered; he has, no doubt, a power to annex what conditions he pleases to the permission to enter." "The power, then, of New York to pass this law, having undeniably existed at the formation of the Constitution, the simple inquiry is, whether by that instrument it was taken from the State and granted to Congress; for if it were not, it yet remains with them." "If, as we think, it be a regulation, not of commerce, but of police, then it is not taken from the States. To decide this, let us examine its purpose, the end to be attained, and the means of its attainment." "It is apparent from the whole scope of the law that the object of the Legislature was to prevent New York from being burdened by an influx of persons brought thither in ships either from foreign countries or from any 617*] other of the *States; and for that purpose a report was required of the names, places of birth, etc., of all passengers, that the necessary steps might be taken by the city authorities to prevent them from becoming chargeable as paupers." "The power reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the liberties, lives and properties of the people, and the internal order. improvement, and prosperity of the State." 11 Peters, 132, 133. After a review of Gibbons v. Ogden, and Brown v. Maryland, and showing that their opinions are not in collision with the principles of either of these cases, the court say: "But we do not place our opinion on this ground. We choose rather to plant ourselves on what we consider an impregnable position. They are these-That a State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That by virtue of this, it is not only the right, but the bounden and solemn duty of a State, to advance the safety, happiness, and prosperity of its people; and to provide for its general welfare, by any and every act of legislation which it may deem conducive to these ends, where the power over the particular subject, or the manner of its exercise, is not surrendered or restrained in the manner just stated. That all those powers which relate to merely municipal regulations, or what may, perhaps, more properly be called 'internal police,' are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a State is complete, unqualified, and exclusive." 11 Pet. 139. "We think it as competent and as necessary for a State to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts, as it is to guard against the physical pestilence which may arise from unsound and infectious articles imported; or from a ship, the crew of which may be laboring under an infectious disease." Ib. 143. These principles were not declared for the first time in the case of Miln; they flowed from those which were established as unquestionable in The United States v. Bevans, where this language is used: "What, then, is the extent of jurisdiction which a State possesses! "We answer without hesitation, the jurisdiction of a State is co-extensive with its territory; co-extensive with its legislative power. "The place described is unquestionably within the original territory of Massachusetts. It is, then, within the jurisdiction of Massachusetts, unless that jurisdiction has been ceded to the United States (3 Wheat. 386, 387) by a cession of territory, or, which is essentially the same, of general jurisdiction." Ib. 388. "It is not questioned that whatever may be necessary to the full and unlimited exercise of admiralty and maritime jurisdiction is in the government of the Union. Congress may pass all laws which are necessary and proper for giving the most complete effect to this power. Still the general jurisdiction over the place, subject to this grant of power, adheres to the territory as a portion of sovereignty not yet given away. The residuary powers of legislation are still in Massachusetts. Suppose, for example, the power of regulating trade had not been given to the general government. Would this extension of judicial power to all cases of admiralty and maritime jurisdiction have devested Massachusetts of the power to regulate the trade of her bay?" Ib. 389. It would be at least superfluous, if not presumptuous in me, to attempt to illustrate or enforce the soundness of these principles, which this court declare to be impregnable positions, on which they plant their opinion. That they may neither be shaken nor impaired by any future collision between them, and any opinions which may be founded on a contrary construction of the Constitution, is most ardently to be desired by all who wish to see the federal and State governments move within their respective orbits, with the same harmony for the future, as they have done for the past. [*618 The continuance of this harmony will, in my opinion, be in imminent danger, not only of interruption, but of extinction; whenever the course of this court shall be such as to subvert the great principles of constitutional jurispru dence, on which it has defined the line of sepa- | ration between the powers which are granted to the United States, and those prohibited or reserved to the States, or the people thereof respectively. Nor is there one among these latter powers which it is so dangerous to attempt to impair as that of internal police; and especially that portion of it which relates to fugitives, vagabonds, criminals, or convicts, whether they have fled from justice before or after trial; for if a State cannot expel from her territory this species of pestilence, so infectious, contagious, and fatal to the morals of the community, in which they are suffered to mix and move unmolested, her power of police is a shadow, a farce, while this most feculent mass of corruption remains a public nuisance, which the power of a State is incompetent to abate. It is but a poor and meagre remnant of the once sovereign power of the States, a miserable shred and patch of independence, which the Constitution has not taken from them, if in the regulation of its internal police, State sovereignty has become so short of authority as to be competent only to exclude paupers, who may be a burden on the pockets of its citizens; unsound, infectious articles, or diseases, which may affect their bodily health; and utterly powerless to exclude those moral ulcers on the body political, which corrupt its vitals and demoralize its members. If there is any one subject on which this court should abstain from any course of reasoning, tending to expand the granted powers of the Constitution, so as to bring internal police within the law or treaty-making power of the United States, by including it within the prohibition on the States, it is the one now before us. Nay, if such construction is not unavoidable, it ought not to be given; lest we introduce into the Constitution a more vital and pestilential disease than any principle on which the relator could be rescued from the police power of Vermont, would fasten on its institutions, dangerous as it might be, or injurious its effects. Should an adjudication so fearful in its consequences be made in a case of kindred nature with this, the people and States of this Union will "plant themselves" on the "impregnable positions," taken in the opinion of this court, in the cases quoted; and standing on grounds thus consecrated, refuse to surrender those rights which we had declared to be "complete, unqualified, and exclusive." The power of this court is moral, not physical; it operates by its influence, by public confidence in the soundness and uniformity of the principles on which it acts; not by its mere authority as a tribunal, from which there is no appeal; and if ever its solemn decisions should be overlooked by itself, or we should cease to respect those of our predecessors, the people and the States will still adhere to them, and our successors will refuse to follow our deviations from the ancient path. It may be the doctrine of the day that the reserved rights of the States are too broad and the powers of Congress to narrow; but it will not withstand the scrutiny of time, or the deliberate consideration of the principles on which the cases referred to have been decided, and those therein promulgated. If they shall ever be disre garded in public opinion, and their reversal follow, it will not be done by the establishment of those principles on which it is now attempted to enlarge the prohibitions on the States, and to expand the powers of Congress, by implication upon implication, to effect both objects by ingenious or farfetched suppositions or assumptions. Ingenuity, talents, and subtility can work a countermine under the Constitution, by which the contrary effect may be produced; whereby the reserved powers of the States may absorb as much of the granted powers of the general government, as the adoption of the grounds on which the relator's case has been placed would take from those which have neither been granted by, or prohibited to the States. Equally dreading and avoiding both extremes, I am content to take the Constitution as it has hitherto been expounded by this court, on all subjects connected with the cause now before us; in my opinion [*619 it leaves no open point, even admitting what is known not to exist, that there was a treaty stipulation on the subject. But without such stipulation, the relator's case is most bald and barren of merits; it rests upon doctrines not to be sanctioned consistently with past adjudications, which, in The United States v. Bevans, asserted the jurisdiction and legislative power of a State to be co-extensive with its territory, over all subjects not delegated to the general government; and in Gibbons v. Ogden; Brown v. Maryland; and New York v. Miln, declared that no power over the internal police of a State had been so delegated by the Constitution; but was reserved exclusively to the States. I deem it wholly unnecessary to make a detailed application of those cases to the present; their affinity is too visible on a comparison, to require anything more than a reference to them respectively, as they are reported; police is in every feature; the moral and physical health of the people is the common object of police regulations in all their ramifications, as applied to the vast variety of subjects which they embrace, and none of which are confided to any other than State power; and all of which must remain under its exclusive control, till the Constitution is changed. The States are enjoined by the Constitution to surrender a fugitive from another State on a demand; they will be obliged to do it under a treaty stipulation to a foreign power; and thus far, but no farther, has there been, or can be any abridgement of their power over the subject; they cannot be deprived of their right of expelling from their territory those fugitives who have no privileges within it; or be compelled to retain them, when they are not enti tled to the protection of its Constitution or laws; any refugee crosses the border at his peril; his government may not desire to reclaim him for punishment, and be unwilling to receive him again; but that matters not to the State to which he flies; the right and power to remove, expel, and voluntarily to surrender the fugitive, is as perfect as if it was a duty prescribed by a power paramount to that of the State. This is, in my opinion, the turning point of this case; and this right to determine what persons fleeing from abroad shall be suffered to remain a burden on its citizens for their sup port, or a dangerous example to the community, is so peculiarly and appropriately a subject of State jurisdiction, as to be incapable of delegation to any other power. Any action of Congress upon it would be not only an assumption of ungranted power, but a direct usurpation of powers reserved to the States; and if exercised by means of coercion, to compel a State to retain the vagabonds from other States or the border provinces, would operate more fatally on the morals of the people than pestilence upon their health, or gunpowder on their property and their lives. Happily, such power is not visible in the Constitution, nor has it been infused into it by construction; whenever internal police is the object, the power is excepted from every grant and reserved to the States, in whom it remains in as full and unimpaired sovereignty as their soil, which has not been granted to individuals, or ceded to the United States; as a right of jurisdiction over the land and waters of a State, it adheres to both, so as to be impracticable of exercise by any other power, without cession or usurpation. Such is the power which the governor, as chief magistrate, of Vermont has exercised over this fugitive; in my opinion it was properly exercised; and that no department of this government is competent, on subjects of police, to control him or any other State officer, in the execution of his or their offices. It the internal police of a State; or to examine whether it has been exerted under the authority of a State law, or by the constitutional power of its chief executive magistrate. suffices for all the purposes of this case that the subject matter is not of federal cognizance, but is excluded from the jurisdiction of the United States to its full extent, and reserved for the action of another sovereighty, whose power over it must remain untouched, till an amendment to the Constitution shall displace it. That this may never be done is, in my opinion, devoutly to be wished by every friend to the permanency of our institutions. The other ground on which I am opposed to any interference with the proceeding of the Supreme Court of Vermont in this matter is, that it is not within the appellate jurisdiction of this court, under the 25th section of the Judiciary Act; because the order of that court on a habeas corpus is not a judgment on which a writ of error can be brought. I cannot so well define the nature and object of the writ of habeas corpus, or so well explain the proceedings upon it, as in the language of this court: "It has been demonstrated at the bar that the question brought forward on a habeas corpus is always distinct from that which is involved in the cause itself. question whether the individual shall be imprisoned, is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried; and therefore these questions are separated and may be decided in different courts." The "The decision that the individual shall be imprisoned, must always precede the application for a writ of habeas corpus; and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature." 4 Cranch, 101. "This being a mere inquiry, which, without deciding upon guilt, precedes the institution of a prosecution, the question to be determined is, whether the accused shall be discharged or held to trial; and if the latter, in what place they are to be tried, and whether they shall be confined or admitted to bail. If, etc., upon inquiry it manifestly appears that no such crime has been committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only is it lawful totally to discharge him, otherwise he must either be committed to prison, or give bail." Ib. 125, 126. By the course which has been taken, all danger of interfering with the relations of the United States and foreign powers, either on matters of commercial intercourse or diplomatic concern, is avoided; such interference could happen only on the refusal to deliver up the fugitive, on the demand or request of the authorities of Canada; for a compliance with either would rather add strength to, than tend to weaken the pre-existing relations of amity and comity between the two nations. On the other hand, if the delivery was spontaneous, and made in the true spirit of border peace and mutual safety from crime, the boon would be 620*] the more acceptable; or if the authorities of the State should send the fugitive back whence he came, those of Canada would have no cause of complaint, because they had made no reclamation, or because Vermont was unwilling to incorporate among its citizens a foreigner whom his own government was disposed not to take back. The United States cannot complain, for neither their rights or power can 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 combe executed; but on any other ground or pre-mitment." 3 Pet. 201. "It is a high preroga text, there can be no colorable argument or reason for such interference. That the case before us is one in any way affecting our foreign relations, seems to me wholly supposititious; and the untoward consequences which seem to be apprehended from affirming the exercise of the power of the governor, appear as wholly conjectural, and without any ration al foundation in fact or principle. But be this as it may, we have no warrant from the Constitution, and Congress can give us none, to authorize us to interfere with the exercise of a power which comes within every definition which this court has given of a regulation of tive writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause." "It is in the nature of a writ of error to examine the legality of the commitment." Ib. 202. It lies to a circuit court of the United States, sitting in a State (3 Dall. 17), or to the Circuit of this district (3 Cranch, 448; 4 Cranch, 101); it is an exercise of appellate jurisdiction, and "we are but revising the effect of their process, *etc., under which the prisoner is de- [*621 tained." 7 Pet. 573. But it does not lie in favor of persons committed for treason or felony, plainly expressed in the warrant, convict |