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

THE

JUDICIAL POWER. TRUE BASIS OF THE LEGISLATIVE POWER OF CONGRESS.

§ 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

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."

2

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.

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

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

parties; and the inquiry occurs first of all-can a claim against the national Government be, under the Constitution alone, the subject-matter of a case at law or equity, or of a controversy within the judicial power?'

It is admitted by all that, if Congress will provide for the settlement and satisfaction of any claims or demands against the United States, they may entrust the adjudication of such claims to the judiciary, and by consenting that the United States shall become a party before the national judicial tribunals, originate cases at law or equity, and controversies to which the United States is a party. But it does not appear how, anterior to such legislation, the United States, or the national Government as its representative, can be a party in

even a sort of necessity, in regarding the claim as one to be made against either the State in which the escaped slave should be found or the national Government, and the delivery as an act resulting from the duty of that State or of that Government, correlative to the owner's right. The slave being regarded as the object, only, of action, and never as the subject of rights, the claim would necessarily be against some third party as the legal person refusing to fulfill the obligation correlative to the owner's right in respect to that object. Such a person might, perhaps, be found in the State wherein the slave is found or in the Government of the United States. Story says, 16 Peters, 616:—“ It is plain, then, that where a claim is made by the owner out of possession for the delivery of the slave, it must be made, if at all, against some other person, and inasmuch as the right is a right of property capable of being recognized and asserted by proceedings before a court of justice between parties," &c., &c. (And compare Coulter, J., in Kauffman v. Oliver, ante, p. 495.) It will hereinafter be argued that as no natural person can, in view of this provision, be considered as a chattel, the fugitive from labor cannot be considered simply as the object of the rights of others, whatever may be the law of the State from which he may have fled, and that his status or condition is determined always by the law of the State in which he is found, subject to the effect of this provision, which views him as a person sustaining a legal relation towards another person in which he owes service or labor, and therefore designates him as a legal person whose obligation is to be established on claim. Being so regarded, the claim of the person to whom such service or labor may be due, under the provision, may be like the claim of a lord against his vassal, or, of a master against his servant; which, when denied, is denied by the bondman himself, while courts, whether State or national, holding jurisdiction over the territory wherein they may both be found, may apply the provision as private law, i. e., national municipal law, having a limited personal extent, and international effect, and those courts will then make the delivery provided for, when the claim is established in the name of the law, i. e., the constitutional provision in this case, without reference to the State in which the fugitive may be found, or to the Government of the United States, as parties in interest.

1 Not every question arising under the Constitution is a case or a controversy within the judicial power. See Marshall's argument in Robbins, or Nash's case; Abridged Debates, Vol. 2, p. 462, and post in Ch. XXVIII.; also Judge Sutliff's argument on this ground against the doctrine that a case arises under this provision as law acting on the States, 9 Ohio, 244, and ante, p. 527.

any case or controversy simply as founded on their own sovereign promise or guaranty in the Constitution.'

If a distinction is made between the United States and the national Government, and it is said that the latter is bound under the Constitution, as a law proceeding from a sovereign author, and that this law creates a relation between that Government and the demanding Executive of a State or the claimant owner, the same argument still applies against attributing to the national judiciary power to apply that law as in a case between the parties to that relation. The Government as an integer, existing in three departments, clothed with distinct functions, is the subject of the law. The judicial and executive functions cannot be exercised by the two departments against the integral whole, unless the consent to appear and submit to the action of the judiciary and executive has been given by the legislative function.'

If, then, before Congress has legislated, there is no case or controversy to which the national Government or the United States is a party, to which the powers of the judiciary already extend, Congress cannot legislate to carry into effect any power of such judiciary in such cases or controversies; for there is not as yet any such power.

§ 791. It has not been pretended by any who support the legislation of Congress, as carrying into execution a power vested in the integral Government, that the power to be executed has been vested in that Government by any express grant in the written Constitution. The jurists who have maintained the existence of such power, have relied solely on their individual conceptions of the unexpressed purposes of the authors of the Constitution. The supposed power rests on implication, or is confessedly an implied power in the Govern

ment.❜

The majority of the opinions supporting the legislation of Congress on this ground imply the existence of the power in

'Story's Comm., §§ 1675-1678. 1 Curtis' Comm., chapters 4 and 6. Devereux's Reports of Cases in the Court of Claims, Appendix, p. 6. Compare Iredell, J., in Chisholm v. Georgia, 2 Dallas, 437, 438, and Wilson, J., ibid. 459, 460.

2 Curtis' Comm., § 56, Jay, Ch. J.; in Chisholm v. Georgia, 2 Dallas, 419, 478. 8 Compare Story, J., in 16 Peters, 618, 619; ante, p. 470.