act upon the subject-matter. Its silence as to what it does not do, is as expressive of what its intention is as the direct provisions made by it. This doctrine was fully recognized by this Court, in the case of Houston v. Moore, 5 Wheat. Rep. 1, 21, 22; where it was expressly held, that where Congress have exercised a power over a particular subject given them by the Constitution, it is not competent for State legislation to add to the provisions of Congress upon that subject; for that the will of Congress upon the whole subject is as clearly estab lished by what it had not declared, as by what it has expressed.

"But it has been argued, that the act of Congress is unconstitutional, because it does not fall within the scope of any of the enumerated powers of legislation confided to that body; and therefore it is void. Stripped of its artificial and technical structure, the argument comes to this, that although rights are exclusively secured by, or duties are exclusively imposed upon, the national government, yet, unless the power to enforce these rights, or to execute these duties, can be found among the express powers of legislation enumerated in the Constitution, they remain without any means of giving them effect by any act of Congress; and they must operate solely proprio vigore, however defective may be their operation; nay, even although, in a practical sense, they may become a nullity from the want of a proper remedy to enforce them, or to provide against their violation. If this be the true interpretation of the Constitution, it must, in a great measure, fail to attain many of its avowed and positive objects as a security of rights, and a recognition of duties. Such a limited construction of the Constitution has never yet been adopted as correct, either in theory or practice. No one has ever supposed that Congress could, constitutionally, by its legislation, exercise powers, or enact laws beyond the powers delegated to it by the Constitution; but it has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly [619] given, and duties expressly enjoined thereby. The end being required, it has been deemed a just and neces

sary implication, that the means to accomplish it are given also; or, in other words, that the power flows as a necessary means to accomplish the end.

"Thus, for example, although the Constitution has declared that representatives shall be apportioned among the States according to their respective federal numbers; and, for this purpose, it has expressly authorized Congress, by law, to provide for an enumeration of the population every ten years; yet the power to apportion representatives, after this enumeration is made, is nowhere found among the express powers given to Congress, but it has always been acted upon as irresistibly flowing from the duty positively enjoined by the Constitution. Treaties made between the United States and foreign powers often contain special provisions, which do not execute themselves, but require the interposition of Congress to carry them into effect, and Congress has constantly, in such cases, legislated on the subject; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect. It has been supposed to result from the duty of the national government to fulfill all the obligations of treaties. The senators and representatives in Congress are, in all cases, except treason, felony, and breach of the peace, exempted from arrest during their attendance at the sessions thereof, and in going to and returning from the same. May not Congress enforce this right by authorizing a writ of habeas corpus, to free them from an illegal arrest in violation of this clause of the Constitution? If it may not, then the specific remedy to enforce it must exclusively depend upon the local legislation of the States; and may be granted or refused according to their own varying policy, or pleasure. The Constitution also declares that the privilege of the writ of habeas corpus shall not be suspended, unless, when in cases of rebellion or invasion, the public safety may require it. No express power is given to Congress to secure this invaluable right in the non-enumerated cases, or to suspend the writ in cases of rebellion or invasion.

And yet it

would be difficult to say, since this great writ of liberty is

usually provided for by the ordinary functions of legislation, and can be effectually [620] provided for only in this way, that it ought not to be deemed by necessary implication within the scope of the legislative power of Congress.

"These cases are put merely by way of illustration, to show that the rule of interpretation, insisted upon at the argument, is quite too narrow to provide for the ordinary exigencies of the national government, in cases where rights are intended to be absolutely secured, and duties are positively enjoined by the Constitution."

In this portion of the Opinion, the idea seems to prevail that the provision acts on the national Government, not on the several State, creating a duty of that Government. For here, as he does more at length in the sequel, Judge Story denies to the several States all power to act in the premises; a denial hardly consistent with the idea that the Constitution is constantly requiring from them the performance of a duty in this matter. So Judge Story speaks again, on page 618, of "duties exclusively imposed upon the national Government," and of the power "to execute these duties."

§752. Judge Story, on page 620 of the Report, proceeds to say :

"The very act of 1793, now under consideration, affords the most conclusive proof that Congress has acted upon a very different rule of interpretation, and has supposed that the right as well as the duty of legislation on the subject of fugitives from justice, and fugitive slaves, was within the scope of the constitutional authority conferred on the national legislature. In respect to fugitives from justice, the Constitution, although it expressly provides that the demand shall be made by the executive authority of the State from which the fugitive has fled, is silent as to the party upon whom the demand is to be made, and as to the mode in which it shall be made. This very silence occasioned embarrassments in enforcing the right and duty at an early period after the adoption of the Constitution; and produced a hesitation on the part of the executive authority of Virginia to deliver up a fugitive from justice, upon the demand of the executive of Pennsylvania, in the

year 1791; and as we historically know from the message of President Washington and the public documents of that period, it was the immediate cause of the passing of the act of 1793, which designated the person (the State executive) upon whom the demand should be made, and the mode and proofs upon and in which it should be made. From that time down to the present hour, not a doubt has been breathed upon the constitutionality of this part of the act; and every executive in the Union has constantly acted upon and admitted its validity. Yet the right and the duty are dependent, as to their mode of execution, solely on the act of Congress; and but for that, they would remain a nominal right and passive duty; the execution of which being intrusted to and required of no one in particular, all persons might be at liberty to disregard it. This very acquiescence, under such circumstances, of the highest State functionaries, is a most decisive proof of the universality of the opinion that the [621] act is founded in a just construction of the Constitution; independent of the vast influence which it ought to have as a contemporaneous exposition of the provisions, by those who were its immediate framers, or intimately connected with its adoption.

"The same uniformity of acquiescence in the validity of the act of 1793, upon the other part of the subject-matter, that of fugitive slaves, has prevailed throughout the whole Union until a comparatively recent period. Nay; being from its nature and character more readily susceptible of being brought into controversy, in courts of justice, than the former, and of enlisting in opposition to it the feelings, and it may be the prejudices of some portions of the non-slaveholding States; it has naturally been brought under adjudication in several States in the Union, and particularly in Massachusetts, New York, and Pennsylvania, and on all these occasions its validity has been affirmed. The cases cited at the bar, of Wright v. Deacon, 5 Serg. and Rawle, 62; Glen v. Hodges, 9 Johns. Rep. 67; Jack v. Martin, 12 Wend. Rep. 311; S. C., 14 Wend. Rep. 507; and Com. v. Griffin, 2 Pick. Rep. 11; are directly in point. So far as the judges of the courts of the United States have been called upon to enforce it, and to grant the certificate required by it,

it is believed that it has been uniformly recognized as a binding and valid law, and as imposing a constitutional duty. Under such circumstances, if the question were one of doubtful construction, such long acquiescence in it, such contemporaneous expositions of it, and such extensive and uniform recognition of its validity, would, in our judgment entitle the question to be considered at rest, unless, indeed, the interpretation of the Constitution is to be delivered over to interminable doubt throughout the whole progress of legislation, and of national operations. Congress, the executive, and the judiciary have upon various occasions acted upon this as a sound and reasonable doctrine. Especially did this Court in the cases of Stuart v. Laird, 1 Cranch Rep. 299; and Martin v. Hunter, 1 Wheat. Rep. 304; and in Cohen v. The Commonwealth of Virginia, 6 Wheat. Rep. 264: rely upon contemporaneous expositions of the Constitution, and long acquiescence in it with great confidence, in the discussion of questions of a highly interesting and important nature.

"But we do not wish to rest our present opinion upon the ground [622] either of contemporaneous exposition, or long acquiescence, or even practical action; neither do we mean to admit the question to be of a doubtful nature, and therefore as properly calling for the aid of such considerations. On the contrary, our judgment would be the same if the question were entirely new, and the act of Congress were of recent enactment. We hold the act to be clearly constitutional in all its leading provisions, and, indeed, with the exception of that part which confers authority upon State magistrates, to be free from reasonable doubt and difficulty upon the grounds already stated. As to the authority so conferred upon State magistrates, while a difference of opinion has existed, and may exist still on the point, in different States, whether State magistrates are bound to act under it; none is entertained by this Court that State magistrates may, if they choose, exercise that authority, unless prohibited by State legislation."

§753. The residue of the Opinion is occupied with a question which is to be considered in a later portion of this treatise. But it is given here because it contains some passages which