The extent of the legislative power granted to Congress, by these terms "necessary and proper," is obviously of great importance in reference to many other subjects of legislation besides the one under consideration; and, though it has been discussed by the ablest American jurists in many important cases, it must continue to be, in new instances of legislation, a much-debated question of the national municipal public law of the United States. It has received full consideration from the principal writers upon the Constitution.' If the view which has herein before been taken of the nature of this Article of the Constitution, and of the powers of the judiciary under it, is correct; if the demand and delivery of a fugitive from justice, or the claim and delivery of a fugitive from labor, may be a subject of judicial cognizance, even without authority derived from legislation; yet,—since it is a matter of obscurity in what manner the international arrest and delivery of criminals could have been subjected to judicial cognizance before the Revolution, and since the right of an alien owner (foreign or domestic alien) was not uniformly enforced in the colonies by proceedings of common-law origin, and since, also, if the United States courts should, under the provisions of the judiciary Act, in each State follow the local common-law practice, that practice might differ greatly in different States, as their common law on this topic of jurisprudence may have differed, and thus an inequality would arise between the different States, or their respective inhabitants, in the means of sustaining an international right, which is supposed to be equally guaranteed to those who are reciprocally entitled to it, there is evidently some ground for holding that the judicial execution of this provision is an object of legislation as necessary and proper for the action of Congress as can possibly be conceived of under the Constitution. Still more evidently is this so if the cases under these provisions (viewed as law acting on private persons) are not cases at common law, and therefore not subject to those constitutional adaptations of the judicial power of the United States which apply to that class of cases. 11 Kent's Comm. 237-269. Story's Comm. Ch. 24. 2 Ante, § 828. § 834. The application of judicial power in the cases arising under these provisions, on the theory above stated, must result in some judgment or decree to be carried into execution. A difficulty may suggest itself as to the nature of the judgment which could be rendered under either of these provisions regarded as the law to be applied. In one provision it is expressly stated that the fugitive from justice is to be "delivered up, to be removed to the State having jurisdiction of the crime." In this instance it would seem competent to the judicial power enforcing the provision as law to decree or authorize such a removal, and thereby make the custody of such fugitive valid in any other State through which he might be carried for that purpose. But in the other provision it is merely stated that the fugitive from labor shall be "delivered up on claim," and it would appear that the judgment in the supposed case could not go farther than to award such a delivery to the claimant in the State in which the fugitive might be found, and that, if its legislation is based upon the purpose of carrying into effect the judicial power, Congress could not provide for anything beyond such a delivery. It does not appear that under a judgment rendered in such case the claimant could be re-· quired to carry the fugitive back to the State in which he had been held to service; for such a return is not mentioned in the provision itself. The judgment could not, of course, authorize the claimant to hold the fugitive at his discretion in the State in which such delivery had been made. But it would seem to be necessarily implied that it would sanction any custody or holding necessary to remove the fugitive from the limits of the State. The question might be raised, whether any judgment in such case could sanction the custody or holding in other States, through which it might be necessary for the parties to pass in returning to the State by whose law the fugitive had been held to service. But as the custody which follows on the judgment in the case supposed must necessarily be continued beyond the instant when the judgment is pronounced, the delivery contemplated must be regarded as a continuing act. As it is made under a law of national extent, it would seem that its continu ance should be determined by the duration of the circumstances which called for such a delivery, and that the legal custody under a judgment in the case supposed may continue as long as the fugitive is in any State wherein his debt of service or labor is not recognized by the local law of the forum. But if the judgment in the cases supposed cannot thus operate beyond the State in which the fugitive was actually found, the inconvenience could not be remedied by any legislation of Congress; if that legislation is founded on the abovedescribed theory of carrying into effect the judicial power. § 835. If the delivery in the case of a fugitive of either class were made under the local law of a State, proposing to fulfill its obligations under the first construction of these provisions, it is evident that it could do so only when the State from which the fugitives escaped is not separated by intervening States from that in which they should be found. The obvious difficulty, in other cases, under this method of carrying these provisions into effect, has been urged as a proof of the necessity and propriety of legislation by Congress.' But it is plain that this argument bears, in reality, on the question of the construction of the provisions, and against the first construction. It is, at the best, only the argument ab inconvenienti. It applies with greater force to the construction of one provision than of the other; since, though a return to the State from which the fugitive from justice escaped is required by the first, a bare delivery to the claimant owner in the State where the fugitive from service is found may be enough to satisfy the requirement of the other. There is not, in the supposed inconvenience, any argument in favor of the second or of any adaptation of the third construction, and therefore no argument in support of a power in Congress. Or, if this inability on the part of the States, in some instances, to effectuate a return to the State from which the fugitive escaped, can only 'Jack v. Martin, 12 Wend. 321. Nelson, Ch. J.:-"We may add also that, as the power of legislation belonging to the States is in no instance derived from the Constitution of the United States, but flows from their own sovereign authority, any law they might pass on the subject would not be binding beyond their jurisdiction, and any precept or authority given in pursuance of it would carry none to the owner to remove the fugitive beyond it; the authority of each State through which it was necessary to pass would become indispensable." And in Prigg's case, see language of Thompson, J., 16 Peters, 634; Wayne, J., ib. 640. be obviated by bringing the entire subject within the powers of the national Government, it may be done as well by assuming the fourth construction. § 836. An argument against power in Congress to legislate for the purpose of giving effect to any of the provisions of the second section of the fourth Article has been drawn from the special grant of power to legislate for giving effect to the clause in the first section declaring that "full faith and credit shall be given in each State to the acts, records, and judicial proceedings of every other State." This objection was principally insisted on by Judge Hornblower in the Opinion written in Helmsley's case.' This argument is advanced as in conformity with the maxim, Expressio unius est exclusio alterius, and assumes that there is no distinction discernible between the rule expressed in the first section and those given in the second. But whether there be no distinction, may depend upon the question, whether the several provisions in the two sections should all receive the same one of the four constructions already indicated as possible. But if they are all to receive the same, the force of the argument may differ according to the construction adopted. It has not herein been thought necessary to consider the question of the construction of the first clause of the first section of the fourth Article.' But-assuming here that the provisions of the second section are, according to the argument already stated, to receive the fourth construction, and that the clause in the first section should receive the same construction, by which it operates as private law, creating rights and obligations of private persons,-it is to be noticed that, while the rights created by the provisions of the second section are substantive or primary rights, which may be the foundation of cases to which the judicial power would extend, the rights created by the above-mentioned clause of the first section, being rights in respect to evidence, are only secondary, reme Ante, pp. 453, 454, note. See also the statement of the argument by Mr. Wolcott, counsel, in Bushnell's and Langston's case, 9 Ohio, 119, and by Brinkerhoff, J., ib., 225. Ante, § 625. dial, or adjective rights, which could not, alone, be the basis of such cases.' Hence there could be no foundation for the legislation of Congress in reference to the enforcement of the rights and obligations arising under this clause, as, according to the view already presented, there is reference to the enforcement of the rights and obligations arising under the provisions of the second section, under the fourth construction. There is, therefore, in harmony with these views, a reason for granting the power in the one case which does not exist in the other. Ante, § 618. |