ble with any view that has been judicially propounded; but they are worthy of notice, not only on account of his eminent position, but because, in all probability, they correspond with ideas popularly adopted in the discussion of this subject.

§ 786. If, among countless opinions of private persons, which have been published since 1850, on the question of the power of Congress, one may be selected for acknowledged juristical authority, it is that of Mr. Webster, who, on more than one occasion, expressed his acquiescence in the existing judicial determination of this question. But his individual opinion appears clearly to have been that of Judges Hornblower and Smith, and adverse to the attribution of legislative power to Congress.'

§ 787. In the Boston Daily Advertiser of the 19th November, 1850, appeared the opinion of Benjamin R. Curtis, Esq., afterwards Judge of the Supreme Court of the United States,

specific provision, appertains to the general Government, to the government created by the Constitution of the United States. The Constitution declares that a slave shall be delivered up. It says not how or by whom, whether by the State or by the general Government, or by any officer; but it grants authority to Congress to pass all laws necessary and proper to carry into effect the powers granted by the Constitution." In continuing his argument, Mr. Clay said, ib. 621:There is a large class of powers in the original Constitution and in the twelve subsequent amendments which declare that certain things shall be, but specify no particular authority by which they are to be carried into effect."

In his speech in the Senate, March 7, 1850, Works V. 355, Mr. Webster said: -"I have always thought that the Constitution addressed itself to the legislatures of the States or to the States themselves. It says that those persons escaping from other States shall be delivered up,' and I confess I have always been of the opinion that it was an injunction upon the States themselves. When it is said that a person escaping into another State, and coming, therefore, within the jurisdiction of that State, shall be delivered up, it seems to me the import of the clause is, that the State itself, in obedience to the Constitution, shall cause him to be delivered up. That is my judgment. I have always entertained that opinion, and I entertain it now. But when the subject, some years ago, was before the Supreme Court of the United States, the majority of the judges held that the power to cause fugitives from service to be delivered up, was a power to be exercised under the authority of this government. I do not know, on the whole, that it may not have been a fortunate decision. My habit is to respect the result of judicial deliberations and the solemnity of judicial decisions. As it now stands, the business of seeing that these fugitives are delivered up, resides in the power of Congress and our national judicature," &c.

It appears that the view which Mr. Webster's individual judgment approved was also that held by some who held the extreme opposite doctrine on States' rights. Mr. Clay, in the speech last noted, remarked that "the learned Senator [Mr. Barnwell Rhett, of South Carolina] contended that there was no power in the government of the United States to pass the fugitive-slave law." And noticed, among the most remarkable features of the times, that there are certain coincidences between extremes, in this body and in the country:" speaking of Mr. Rhett, and Mr. Chase, of Ohio, as coinciding on this question.

as counsel for the United States Marshal, dated Nov. 9, on the constitutionality of the Act of Congress of 1850. Judge Curtis did not, in this, consider the question of the power of Congress to legislate on the subject. An extract from the opinion will hereafter be given,' from which it may be inferred that, in his view, the claim is made on the national Government, which may respond thereto, at its pleasure, and in any manner it may judge proper; that there is no "case" within the judicial power, unless Congress should choose to place it within the action of that power. In this, Judge Curtis' view agrees best with the third construction, though he apparently differs from Judge Story, in Prigg's case, by not recognizing, as a basis of the legislative power of Congress, the "case" arising under the Constitution and so falling within the judicial power.

See post, Ch. XXIX., where the authorities on the question of the Commissioners being invested with judicial power, are considered.

CHAPTER XXVII.

DOMESTIC INTERNATIONAL LAW OF THE UNITED STATES. THE SUBJECT CONTINUED. QUESTION OF THE CONSTRUCTION OF THESE TWO PROVISIONS EXAMINED. DOCTRINE OF SEIZURE AND REMOVAL EXAMINED. APPLICABILITY OF THESE PROVISIONS BY JUDICIAL POWER. TRUE BASIS OF THE LEGISLATIVE POWER OF CONGRESS.

THE

§ 788. It will be remembered that the opinions cited in the last chapter were referred to as authorities on the construction of these provisions,' but their value in this respect cannot be estimated without deciding at the same time upon their value in determining the question of the legislative power of Congress. Hence, although according to the method herein proposed that inquiry does not properly arise until the construction of these clauses has been settled, it will be necessary to examine these opinions with reference to their harmony with the general doctrine of the legislative power of Congress.

The legislative power of Congress is defined in the eighth section of the first Article of the Constitution. This section contains various specific grants of this power, or grants of legislative power in reference to various objects particularly specified. The grant which is contained in the last paragraph of this section is equally a specific one, as contrasted with a general grant of legislative power, but it is given in reference to a class of objects specified in more general terms. The grant is of power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all others vested by this Constitution in the Government of the United States, or in any department or officer thereof.

The powers conferred on Congress by this last clause are denominated by Judge Story, in the twenty-fourth chapter of his

1

Commentaries," the incidental powers." As he has observed, they are in fact, by force of this clause, express, and not implied powers. He says, in sec. 1254, "If it [this clause] does not in fact (as seems to be the true construction) give any new powers, it affirms the right to use all necessary and proper means to carry into execution the other powers; and thus makes an express power which would otherwise be merely an implied power." And in sec. 1243 Story says, "The plain import of the clause is, that Congress shall have all the incidental and 'instrumental powers necessary and proper to carry into execution all the express powers. It neither enlarges any powers specifically granted, nor is it a grant of any new power to Congress; but it is merely a declaration for the removal of all uncertainty that the means of carrying into execution those otherwise granted are included in the grant. Whenever, therefore, a question arises concerning the constitutionality of a particular power [referring to power in Congress to legislate], the first question is, whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be whether it is properly an incident to an express power and necessary to its execution. If it be, then it may be exercised by Congress. If not, Congress cannot exercise it." "

None of the powers of legislation which, in the above-recited section of the first Article are particularly specified, and which, in the last clause of that section are spoken of as "the foregoing powers," have ever been supposed to relate to the clauses of the fourth Article now under consideration. Nor has it ever been claimed that a power to legislate respecting the objects of these clauses is "necessary and proper" for carrying into execution any of these "foregoing powers." The power, if it exists, must therefore be one of those which Story calls "incidental powers" of Congress, and be included in the power specified in the last clause of the section, "to make all

This power has sometimes been named "the discretionary power of Congress;" see 1 Calhoun's W. 253, and the definition of implied powers on the same page.

2 This statement of the doctrine is original with Mr. Madison in a report in the Virginia Assembly, Jan. 20, 1800, on the alien and sedition laws.

laws necessary and proper for carrying into execution [the foregoing powers and] all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof."

$789. Some of the opinions already cited may seem to assert a power in Congress to legislate on this subject, without distinguishing whether the power is attributed by implication, to Congress, in the first instance, that is without reference to carrying into execution a power vested in the national Government or in a department or officer thereof, or whether a power is attributed, in the first instance, to the Government, or to a department, or to an officer of some department, for carrying which into execution legislative power has been expressly given to Congress.'

But, as Story shows in the Commentaries above cited, there is no such thing as an implied power, in Congress, to legislate. All its powers are expressly given, and are either special or incidental. The opinions supporting the legislation of Congress must be taken to regard it as the execution either of a power in the Government of the United States as a unit, or of a power in some department or officer thereof.

$790. The opinion supporting the legislation of Congress as carrying into execution a power belonging to a department of the Government, or to an officer thereof, is that of Judge Story, in Prigg's case, if herein before correctly understood, and of such judges as may have relied on that opinion, understanding it in the same manner.

According to that opinion, Congress legislates to carry into effect a power, vested in the judicial department of the national Government, over cases at law or controversies between a demanding Governor of a State or a claimant owner, on the one hand, and the national Government on the other,' as opposing

1 Compare ante, pp. 449, Nelson, Ch. J.; 483, Taney, Ch. J.; 484, Thompson, J.; 485, 501, McLean, J., and Marvin, J.; 496, Read, J.

If, in affirming the master's right to seize and remove the slave, Judge Story did not absolutely affirm that under this provision he must be regarded as chattel, and not as legal person, the prevailing idea in his mind seems to have been that the fugitive from labor was to be considered only as the object of the owner's right. (16 Peters, 613.) Upon this idea there was more consistency, and