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January 1, 1840


IN error to the Supreme Court of Judicature of the State of Vermont. On the 19th of July, 1839, George Holmes presented a petition to the Supreme Court of the State of Vermont, then in session, setting forth that he was in the custody of John Starkweather, sheriff of the county of Washington, in the common jail of Montpelier, under a warrant bearing date the 16th of April, 1839, issued by Silas H. Jennison, Governor of Vermont; and that he was unlawfully imprisoned and restrained of his personal liberty. He prayed for a writ of habeas corpus to be directed to the sheriff. The writ was issued, and the sheriff returned that he had the body of the petitioner before the Court, and that he held him in custody under the following order from the Governor of the state of Vermont: 'STATE OF VERMONT. 'To John Starkweather, Esquire, Sheriff of the County of Washington, greeting: 'Whereas, George Holmes, late of Sorel, in the province of Lower Canada, is now detained in the common jail in said Washington county, and under your custody, by reason of a certain charge of felony, sustained by indictment found by the grand jurors of the district of Quebec, in said province, to wit: That the said George Holmes, on the 31st day of January, 1839, at the parish of St. Louis of Kamouraska, in said district, did feloniously kill and murder one Louis Paschall Achille Tache; and whereas, the said George Holmes, not being a citizen of the state of Vermont, or of any of the United States, but a citizen of the said province of Lower Canada, and has come into this state from the said province of Canada, and the offence, whereof he is charged as aforesaid, having been committed within the jurisdiction of said province, it is fit and expedient that he, the said George, be made amenable to the laws of said province, for the offence aforesaid:

The opinion of the court was delivered by: 'You are therefore required that, as soon as may be after the 27th day of (instant) April, the body of the said George Holmes, now in your custody, you convey and deliver to William Brown, the agent of Canada, or to such person or persons as, by the laws of the said province, may be authorized to receive the same, at some convenient place on the confines of this state and the said province of Canada; to the end, that he, the said George Holmes, may be therein conveyed to the said district of Quebec, and be there dealt with as to law and justice appertains.

'Hereof fail not, but of your doings in the premises make due return.

'Given under my hand, at Shoreham, this 16th day of April, 1839.


'Governor of Vermont.'

On the hearing of the habeas corpus before the Supreme Court of Vermont, evidence was produced which showed that George Holmes was a native citizen of the United States, having been born in the state of New Hampshire.

A correspondence between C. P. Van Ness, Esq., the Governor of the state of Vermont, in the year 1825, with the executive of the United States, was also given in evidence. In March, 1825, the Governor of Vermont forwarded to Mr. Clay, the Secretary of State of the United States, a communication addressed to him by 'the acting Governor of Canada,' stating that two soldiers of a British regiment, who had committed a robbery on two officers of the regiment, were then in confinement in jail in Burlington, Vermont, and asked that the offenders should be delivered up to a person to be authorized to receive them, to be brought to justice in the province of Canada. The Governor of Vermont, in the letter to the Secretary of State, expresses his readiness to attend to any directions the Secretary of State of the United States might please to give on the subject. The reply of Mr. Clay, which was transmitted by Governor Van Ness to the acting Governor of Canada, states: 'I am instructed by the President to express his regret to your Excellency, that the request of the acting Governor of Canada cannot be complied with under any authority now vested in the executive government of the United States; the stipulation between this and the British government, for the mutual delivery of fugitives from justice, being no longer in force; and the renewal of it by treaty, being, at this time, a subject of negotiation between the two governments.'

A motion was made for the discharge of the prisoner upon the ground of the insufficiency of the cause alleged for his detention, as being at variance with the provisions of the Constitution of the United States; and after a hearing of the case, the Court rendered judgment against the application, and ordered the prisoner to be remanded. George Holmes prosecuted this writ of error.

The case was argued by Mr. Van Ness, for the plaintiff in error No counsel appeared on the part of the defendants.

Mr. Van Ness, for the plaintiff in error.

The case in the record now before the Court presents two general questions. First, has this Court jurisdiction? And, secondly, if it has, is the judgment complained of erroneous?

The question of jurisdiction depends essentially upon the provisions of the Constitution of the United States, defining the powers of this Court, and upon the 25th section of the judicial act of 1789, prescribing the mode in which the judgments of state Courts, in certain cases, can be here re-examined. But before entering upon this field, it may be proper briefly to advert to the principles of the common law as it regards the prosecution of writs of error.

It appears never to have been judicially settled in England whether this writ would lie where a judgment had been rendered on the return to a habeas corpus; though the point, in one or two instances, has been incidentally alluded to, while in another it was directly agitated, but without any decisive result.

In the case of Wagoner, called the case of the city of London, reported in 8 Coke, 253, there was an objection made to the return upon a habeas corpus, that it consisted too much in recital, instead of being more direct and certain; and the Court answered, that it 'was not a demurrer in law, but a return on a writ of privilege, upon which no issue could be taken or demurrer joined; neither upon the award would any writ of error lie, the return being to inform the Court of the truth of the matter in which such precise certainty is not required as in pleading.'

In the case of the King vs. The Dean and Chapter of Trinity Chapel, in Dublin, reported in 8 Modern, 28, and in 1 Strange, 536, a writ of error was brought to the King's Bench, in England, to reverse a judgment of the King's Bench in Ireland, awarding a peremptory mandamus, and it was decided that error would not lie. In the first-mentioned report of this case, the Court is represented as saying: 'It is against the nature of a writ of error to lie on any judgment but in causes where an issue can be joined and tried, or where judgment may be had upon a demurrer and joinder in demurrer, and therefore, it would not lie on a judgment for a procedendo, nor on the return of a habeas corpus.' By the report of Strange, which is much more full, and doubtless, more correct, it appears that on the first argument of the case, the judges doubted as to whether the writ of error could be brought, some of them leaning one way, and some the other way. But after a second argument, they agreed that the writ could not be sustained. Nothing, however, is said about a writ of error on a habeas corpus, except that one of the judges inferred from the form in which the judgment was entered in the case of the Aylesbury men, (of which I shall presently take notice,) that that case was not thought to be one in which a writ of error could be brought. And upon looking into the reasons assigned for the decision, it will be seen, that the principal one was the omission of the words, 'ideo consideratum est,' in the entry of the judgment.

Here let it be observed, that in neither of the two cases referred to was there a question, whether a writ of error would lie in the case of a habeas corpus; and therefore, that whatever may have been said by the Court in either of them, upon this point, was foreign to the subject before them, and cannot be entitled to the weight of authority. And it should be particularly noticed, that the principal reason upon which the last-mentioned case was finally decided, was the omission of the words, 'ideo consideratum est,' in the entry of the judgment; thus placing the question, whether the decision of the Court constituted a regular judgment, upon the particular words made use of in entering such decision on the record, instead of determining that point from the nature and effect of the decision so given.

But there remains the case of the Aylesbury men, in which the question which we are now discussing, directly arose. This case occurred in the first years of the reign of Queen Anne, and is reported in 2 Salkeld, 503, and in 2 Lord Raymond, 1105, and also in Holt, 526. There was a commitment by order of the House of Commons, of certain persons, for an alleged contempt, in having commenced an action against the constables of Aylesbury, for refusing to take their votes at an election for members of Parliament. The prisoners were brought before the Court of King's Bench, by a writ of habeas corpus, and three of the four judges held, that the commitment was legal; but Holt, Chief Justice, declared the contrary.

A writ of error to the House of Lords upon this judgment, having been applied for, the House of Commons insisted that none ought to be granted, while the House of Lords took the opposite side. The latter condemned the course pursued by the Commons, and requested of the Queen, 'that no consideration what ver should prevail with her majesty to suffer an obstruction to the known course of justice; but that she would be pleased to give effectual orders for the immediate issuing of the writ of error.' And in referring to the several objections made by the Commons, they said: 'As to the second thing they (the Commons) have taken upon them to assert, that no writ of error lies in the case; we affirm to your majesty, with great assurance, that the House of Commons have no right or pretence to determine whether that be so or not. The right to judge when a writ of error is properly brought, is by law entrusted to that Court to which the writ of error is returnable; and, therefore, we shall not at present say any thing to your majesty, in an extra-judicial way, and before the proper time, as to the point, whether a writ of error brought upon a judgment for remanding prisoners upon a habeas corpus can be maintained.'

Now, although the House of Lords did not in terms declare that the writ, if brought, would be sustained by them, yet it would certainly be unreasonable to suppose that they would have pressed the subject in the manner they did, had they been of the contrary opinion. And as this case occurred nearly one hundred years after that of the city of London, it follows most clearly, that what had been loosely said in the latter, had never grown into authority, nor had any effect towards settling the principle. The question, therefore, remains an open and unsettled one in England, to this day.

In Coke's Commentaries on Littleton, 288 b, it is laid down, that 'a writ of error lieth when a man is aggrieved by an error in the foundation, proceedings, judgment, or execution.' And again, that 'without a judgment, or an award in the nature of a judgment, no writ of error doth lie.' Now, what is a judgment, but the decision of the Court upon the case before it? And is not the decision upon the return to a habeas corpus, determining whether the imprisonment of a person is lawful or unlawful, a judgment in the case; or, at least, an award in the nature of a judgment? There is a case regularly brought before the Court, and the merits of the question which it was designed to try are examined and determined. If this determination does not constitute a judgment, I am at a loss to understand what does. And, moreover, in order to determine this, is it reasonable or proper that we should shut our eyes to the nature and character of the act performed by the Court; and look merely at the particular set of words, that may happen to be used in recording such act?

It should here be noted, that error lies in England to reverse an outlawry; that it lies upon a statute merchant: and also upon a fine; in neither of which last two cases at least, can it be said that there is any judgment of a Court.

In the state of New York, this subject was very fully and ably discussed in the case of Van Ness Yates, reported in 6 Johnson, 337; and it was there decided by the Court of errors, the highest judicial tribunal in the state, that a writ of error would lie in the case of a habeas corpus. It is true, that there was a respectable minority in the Court, dissenting from the decision, but it can scarcely be denied that the weight of the argument was on the side of the majority. And I beg, particularly, to refer the Court to the opinion delivered by that great man, De Witt Clinton, who, though not a technical, nor even a practising lawyer, exposed in a masterly and unanswerable manner, the weakness and absurdity of the grounds urged why a writ of error should not be considered a legal and appropriate remedy in a case of this kind.

Upon the whole, therefore, it appears to me that the jurisdiction of this Court in the present case, so far as it concerns the point whether a writ of error will lie in the case of a habeas corpus, is sustainable even upon the principles of the common law. But we will now turn to the Constitution and laws of the United States; upon which, after all, as I have already said, the question essentially rests.

The Constitution provides, that in all cases arising under the same, the laws of the United States, and the treaties made under their authority, this Court shall have appellate jurisdiction, both as to law and fact; with such exceptions, and under such regulations, as Congress shall make. By the twenty-fifth section of the Judiciary Act of 1789, a final judgment or decree in any suit, in the highest Court of law or equity in which a decision could be had, of a state, may be re-examined and reversed or affirmed in this Court, upon a writ of error, where is drawn in question, among other subjects, the validity of an authority exercised under any state, on the ground of such authority being repugnant to the Constitution or laws of the United States, and the decision of the state Court is in favour of the validity of such authority.

The principal question which the record in this case presents is, whether the authority exercised by the Governor of Vermont, under or on behalf of the state, in issuing the order for the arrest of the plaintiff in error, and his transportation to a foreign country, was in violation of, or repugnant to, the Constitution of the United States. And it has been fully settled by this Court, that it need not, in terms, be stated, that the Constitution or an act of Congress was drawn in question, in order to give the Court jurisdiction on error from a state Court; but that it is sufficient if the record shows that some one of the requisite questions was necessarily involved in the case. I will not, therefore, spend further time to prove that the subject matter of this cause may come here; but will proceed with the examination, as to whether it has been brought here in the manner prescribed by the act of Congress.

The substance of what is required is, that there should be a question of which, by the Constitution, this Court has appellate jurisdiction; the manner of bringing that question here being but matter of form. And herein consists the difference between the principles which are to govern the decision of this case, and those which are applicable to writs of error in England. There, the right to bring error appears to depend upon the form of the proceedings which are sought to be re-examined, without regard to the merits of the controversy; while here, it depends upon the principles involved in the case, without regard to the form of the proceedings.

It is but fair to suppose that it was the intention of Congress, in framing the provisions of the judicial act of 1789, which have been already stated, to carry into execution the grant of jurisdiction contained in the Constitution; and in that light the act should be liberally construed. But so far as it may be supposed that the object was to make exceptions to the grant, the construction ought to be a strict one. And here let me make the passing remark, that although in my judgment some erroneous ideas have been entertained as it respects the power of Congress to make exceptions, yet that I do not deem it necessary to my present purpose to enter upon that question.

I return to the point; the Constitution, as we have seen, embraces in the jurisdiction, all cases arising under the same, or under the laws and treaties of the United States; while the act of Congress provides for a writ of error from the judgment of a state Court, in any suit in which certain questions, of the nature of those mentioned in the Constitution, and including the one presented by the record before the Court, shall arise. Can there be a reasonable doubt that the main object of the law was to provide for bringing up the questions specified, without reference to the particular form of the proceedings in which they might occur? Is it not plain that the terms 'any suit' were intended to be used in a sense co-extensive with 'all cases?' And, indeed, I feel persuaded that I might safely rest the question upon the meaning of the term 'suit,' by itself considered. It is defined to be 'the lawful demand of one's right;' and what broader expression can be necessary to include the writ of habeas corpus, which is brought to recover one's personal liberty, the highest and most valuable of all rights?

But, finally, I view this question to have been settled, (at least in effect,) by this Court. In the case of the Columbian Insurance Company vs. Wheelright and others, 7 Wheat. 534, it was decided that error would lie upon the award of a peremptory mandamus. Error was also sustained in a similar case, in favour of Mr. Kendall, the Postmaster-general, 12 Peters, 524. And in the case of Weston and others vs. The City Council of Charleston, 2 Peters, 450, it was determined that this writ might be brought upon a denial to grant a prohibition. In the last mentioned case, the following language, with reference to the word 'suit,' was used by Chief Justice Marshall, in delivering the opinion of the Court: 'The term is certainly a comprehensive one, and is understood to apply to any proceeding in a Court of justice, by which an individual pursues that remedy which the law affords him. The modes of proceeding may be various, but if a right is litigated between parties in a Court of justice, the proceeding by which the decision of the Court is sought is a suit.'

I wish to bring back to the notice of the Court, that it has been settled in England, by the House of Lords, that neither in the case of a mandamus, or of a prohibition, can a writ of error be sustained. As to the former, it was decided in the case already cited, of the King vs. The Dean and Chapter of Trinity Chapel, which was carried up to the House of Lords. And, with regard to the latter, it was settled in the case of the Bishop of St. David's, 1 Salk. 134. 1 Lord Ray. 545.

If, then, this Court has exercised jurisdiction in both of those cases, contrary to the decisions of the highest Courts in England, why should not be jurisdiction be sustained in the one now before the Court; when it has never been determined in England that a writ of error could not be brought to reverse a judgment rendered on the return to a habeas corpus? Surely, it will not be said that property is more worthy of the protection of this Court, than the personal liberty of the citizen. Nor can it be pretended that a mandamus or a prohibition is esteemed a higher remedy than the writ of habeas corpus, the privilege of which was considered of so sacred a character, and so essential to the personal security of the people, that the Constitution has provided against any superision of it, even by Congress, except in cases of rebellion or invasion.

But I will leave this part of the case, in the full persuasion that, even without any other argument or authority, the determination of this Court, and the reasons upon which it was founded in the case of Weston and others vs. The City Council of Charleston, is absolutely decisive in favour of the jurisdiction which I have endeavoured to maintain.

I come now to the main question in the case, which is, whether the judgment of the state Court is erroneous or not.

I am not able to present to this Court the reasons upon which the three judges of the Court below, who concurred in the decision, founded their judgment; since they have never appeared willing to assign any, though repeatedly called upon to do so.

The first point upon this part of the case, for which I contend, is, that the surrender of persons charged with the commission of crimes in foreign countries, is a mere matter of comity between nations, and not of obligation; but that whether it be the one or the other, the subject is wholly of a national character, and the power over it conferred exclusively upon the government of the Union.

Of the more early writers who have treated upon the subject, Grotius, Burlamaqui, and Vattel assert that a positive obligation exists to make the surrender; while Puffendorf, Martens, and Lord Coke deny the existence of such obligation, and hold that surrenders are only made upon the ground of national comity, or by virtue of treaty stipulations. The authors and legal characters, who have more recently treated of the matter, in this as well as in other countries, generally, if not all of them, maintain the latter position.

There are two adjudged cases in this country which deserve to be noticed. The one is a decision of Chancellor Kent of New York, and is to be found in 4 Johns. Ch. Rep. 106; and the other, of Chief Justice Tilghman, of Pennsylvania, reported in 10 Serg. and Rawle's Rep. 125. Chancellor Kent insists that, by the laws of nations, there is an absolute and positive national obligation to surrender fugitives from justice, on proper demand being made. He undertakes to maintain that the article in the treaty of 1794, between the United States and Great Britain, providing for the mutual surrender of persons charged with murder and forgery, created no new obligation; and he even supposes it to have operated, during its existence, as a restriction, so far as it related to the crimes in regard to which surrenders were to be made. Chief Justice Tilghman maintains precisely the opposite ground; and it appears to me that no impartial man can read his opinion without acknowledging the superiority of his reasoning, and becoming convinced of the correctness of his conclusions.

There is no English authority that maintains the doctrine of obligation. In two of the cases cited by Chancellor Kent, the persons accused were sent to Ireland for trial, and in another to Calcutta; but in all three of them, it was upon the ground that this was allowable by the provisions of the Habeas Corpus Act of Charles II., since the places to which the prisoners were sent were under the dominion of the King of England. What was done with the man who was suspected of a murder in Portugal, is left in doubt; the whole report of the case being as follows: 'On a habeas corpus it appeared that the defendant was committed to Newgate on suspicion of murder in Portugal, which (by Mr. Attorney) being a fact out of the king's dominions, is not triable by commission upon 35 of Henry 8, c. 3, s. 1, but by a constable and marshal; and the Court refused to bail him.' It certainly does not appear that he was to be sent out of the country. The remark of Judge Heath, in the case of Meer vs. Kay, 4 Taunt. 34, although foreign to the question before the Court, so far from operating against us, clearly shows that he did not consider the surrender of criminals as a matter of obligation. He expressly put it upon the ground of the 'comity of nations,' that it had been held that the crew of a Dutch ship, which had run away with the vessel, might be sent back.

But the decisions and practice of our own government ought to be deemed to be conclusive upon this subject. Ever since the organization of the general government, it has been held that we were under no obligation to surrender persons who had sought an asylum here, though charged with the commission of crimes previous to their change of country. In the year 1791, the governor of South Carolina made a request that the President of the United States should demand of the governor of Florida certain persons who had committed crimes in South Carolina, and fled to Florida. Mr. Jefferson, the Secretary of State, in his report to President Washington, says: 'England has no convention with any nation for the surrender of fugitives from justice, and their laws have given no power to their executive to surrender fugitives of any description, they are accordingly constantly refused; and hence England has been the asylum of the Paolis, the La Mottes, the Calonnis; in short, of the most atrocious offenders, as well as of the most innocent victims, who have been able to get there. The laws of the United States, like those of England, receive every fugitive; and no authority has been given to our executives to deliver them up. If, then, the United States could not deliver up to General Quesnada, (Governor of Florida,) a fugitive from the laws of his country, we cannot claim as a right the delivery of fugitives from us. And it is worthy of consideration, whether the demand proposed to be made in Governor Pinkney's letter, should it be complied with by the other party, might not commit us disagreeably, and perhaps dishonourably; for I do not think that we can take for granted that the legislature of the United States will establish a convention for the mutual delivery of fugitives; and without a reasonable certainty that they will, I think we ought not to give Governor Quesnada any ground to expect that in a similar case we would redeliver fugitives from his government.'

In the year 1793, Mr. Jefferson answered an application of Mr. Genet, the French minister, in the following terms: 'The laws of this country take no notice of crimes committed out of their jurisdiction. The most atrocious offender coming within their pale, is received by them as an innocent man, and they have authorized no one to seize or deliver him. The evil of protecting malefactors of every dye is sensibly felt here, as in other countries; but until a reformation of the criminal codes of most nations, to deliver fugitives from them, would be to become their accomplices. The former is viewed, therefore, as the lesser evil. When the consular convention with France was under consideration, this subject was attended to; but we could agree to go no further than is done in the ninth article of that instrument, where we agree mutually to deliver up captains, officers, marines, sailors, and all other persons, being part of the crews of vessels. Unless, therefore, the persons demanded be part of the crew of some vessel of the French nation, no person in this country is authorized to deliver them up; but on the contrary, they are under the protection of the laws.'

Mr. Monroe, as Secretary of State under President Madison, in his instructions to our commissioners at Ghent, said: 'Offenders, even conspirators, cannot be pursued by one power into the territory of another, nor are they delivered up by the latter, except in compliance with treaties, or by favour.' And, as our government has in all cases of applications from foreign powers, refused to surrender upon the same ground, I would ask whether these decisions, and this practice, ought not to be conclusive upon all the authorities of our national and state governments? Are we still to search among the general and vague remarks of the old writers upon the laws of nations, to ascertain what are our obligations in this respect; when they have been so fully settled by our own government? This, indeed, would be most extraordinary.

But I have said, that whether a matter of obligation, or of comity, the subject appertains exclusively to the national government. It is now well settled and understood, that there are three ways in which the states have been deprived of power by the Constitution. First, where there is a grant of power to the national government, exclusive in its terms. Secondly, where, after a grant to that government, there is a prohibition upon the states in relation to the same object. And, thirdly, where the exercise by the states of an authority conferred upon the national government would be repugnant and incompatible.

Before proceeding to inquire whether the power to act upon the subject of surrendering fugitives from foreign countries, is included in any grant of the character described under the first of these heads; or whether, in any prohibition referred to, under the second; let us see whether it does not become exclusive in the national government, simply upon the principle stated under the last head.

From the very nature and organization of the general or national government, it is vested with the sole jurisdiction over all matters of a national character, and of external concern. The states, by the adoption of the existing Constitution, have become divested of all their national attributes, except such as relate purely to their internal concerns. They are not known to foreign governments as states, nor can they properly be distinguished by them from the mass of this nation. Every question, then, which can arise, and to which a foreign power is a party, or in relation to which any correspondence with such power becomes necessary, belongs to the government of the nation. In short, as to all such matters, we are one and indivisible; precisely the same as if we had no separate states, nor any authorities in the country except those of the Union.

Can it be denied, that the demanding and surrendering of fugitives, as between different countries, is a matter of national and of external concern? The demand is made by the government of one country upon that of another country, and the surrender made in compliance with such demand, is most clearly an act performed at the instance, and for the benefit of a foreign power. And if this is a mere matter of national comity, and not of obligation, as I believe I have satisfactorily shown, the interference of the states would be, if possible, still more improper and incompatible. Some states might practise upon one principle, and some upon another; which might lead to an entire want of uniformity in their proceedings, even as to the same foreign power. The views and plans, too, of the national government in relation to the subject, would always be subject to be frustrated and defeated by the action of the states; the consequences of all which could scarcely fail to be highly mischievous, if not actually dangerous.

Some of the writers who assert the existence of the obligation referred to, go so far as to say, that a refusal to surrender a fugitive may be cause of war. But has a state the power in this way to involve the whole nation in a foreign war? Or let us suppose that one of our states should demand a criminal from a foreign government, and the latter refuse a compliance, would the state in that case have the right to declare war? On whose behalf would she make such declaration? On her own, or on that of the national government? The moment we admit that a state can act upon a matter of this kind, we are unavoidably led into these difficulties. For with the duty or obligation to surrender, is coupled the power to demand, and to this power follows the right to enforce such demand. Who, then, can for an instant yield his assent to a proposition so absurd and so dangerous?

From what I have already said, it appears to me there can be no room for an argument, that the states may severally act upon the subject until the national government shall have acted, or until the two powers come in competition with each other. If this were to be the rule, then the United States, by entering into regulations with some foreign nations, would deprive the states of their powers with regard to such nations, while they would remain as to other countries, and might be exercised upon entire distinct principles from those adopted by such regulations. Some states, too, as already stated, might decide one way, and some another way; so that we might have between the national and the state governments, several different and contradictory practices in relation to the same matter. It follows, therefore, that this is a power which, independently of its being purely of a national and external character, is not susceptible of being divided up, among the national and state governments, or of being concurrently exercised between them.

But I apprehend, that the states are prohibited by the Constitution from acting upon this subject. The powers of war and peace, and of making treaties, are conferred upon the general government; and at the same time, expressly prohibited to the states. Every incident, therefore, which follows the grant, is equally included in the prohibition; and thus is the whole subject of the foreign relations of the country placed under the exclusive jurisdiction of the government of the Union. That the matter now in question is necessarily one of foreign intercourse, and may even call into action the war power; or, at any rate, that it is peculiarly proper for the exercise of the treaty-making power; appears so clear, that I will add nothing upon that point to what has already been said.

If it should be said, that although the United States have the power to regulate this subject by treaty, yet that until they do so, the states, by making surrenders, do not violate the Constitution of the United States, the answer, in my judgment, is easy and plain. If the United States can make a treaty for the surrender of fugitives, generally, they can make one for the surrender of a particular person; and the power to agree to make the surrender, implies the power to refuse it. Well, suppose they should refuse to enter into such a treaty in a particular case, from a conviction that the person in question ought not to be surrendered, and a state should undertake to deliver up the same person, upon the ground that the general government had made no treaty touching the case; would not this be a violation of the Constitution? And would it not be equally so, where the arrangement should be refused by our government, for some special reason arising out of our intercourse with the foreign power applying for it? The general government alone understands the state of our relations with each foreign government, and therefore, can alone know how to act in a case of this kind towards each one of them. And it would be extraordinary that there should be no way to prevent the states from interfering, and disconcerting the action and intentions of the general government, in a matter so essentially connected with our foreign intercourse, except for the United States actually to make a treaty on the subject. But there are even some opinions that a fugitive from justice cannot be delivered up to a foreign government, in any other way than by treaty. Upon this principle it would certainly seem that the subject, as a direct and necessary consequence, belonged, by the Constitution, exclusively to the treaty-making power. For it would be a singular supposition, that the states are prohibited from making treaties with foreign powers, and yet not prohibited from doing those acts in relation to such powers, which can only be performed through the intervention of treaties.

And what measure of action by the general government, according to the doctrine against which I am contending, would bring the Constitution into actual operation upon the states? Would a treaty of the United States with some foreign power for the mutual surrender of persons charged with murder, leave the states at liberty to make surrenders to the same power for forgery, or any other crime less than murder? I hardly think this will be contended for by any one; and yet the case, in my judgment, would stand upon the same ground, as when the United States refused to make a treaty to deliver up for any offence whatever. If the mere negative action of the general government in part, should preclude the states to the same extent, why should not the negative action in whole, have the effect to exclude them altogether? It may, perhaps, be said that the determination of the general government to surrender for one crime, was acting upon the subject, and therefore, precluded the states from surrendering for any crime; as well those left untouched, as the one provided for. But if the general government, from motives of policy, and for reasons deemed sound, should determine to make no surrenders at all to some particular power, why should not this determination have the same effect as the other? Mr. Jefferson, in his letter to Mr. Genet, said: 'When the consular convention with France was under consideration, this subject was attended to; but we could agree to go no farther than is done in the ninth article of that instrument, where we agree mutually to deliver captains, officers, marines, and sailors.' Can it, with reason, be contended, that after that determination it was in the power of the individual states to deliver up to the French government fugitives charged with offences against its laws?

It will be further seen that the states are prohibited even from entering, without the consent of Congress, into 'any agreement or compact with another state, or with a foreign power.' Now can it with any propriety be said, that a state can act upon this subject, and at the instance of a foreign government, when, at the same time, she is prohibited from entering into any agreement or compact with such government in relation to the same? Certainly the power to act implies the power to regulate the manner of action. If one party has a duty or obligation to perform towards another, the two ought to have a right to come to some agreement or understanding as to the way or manner of performing such duty or obligation. Is not this so plain that it cannot be misunderstood by a person of the most ordinary capacity? And, indeed, should not the very order of surrender, made at the instance of a foreign power, be deemed to constitute an agreement to make such surrender? What else can you call it, where one party asks the performance of an act, and the party applied to consents, but an agreement to do the thing required?

If then the subject in question does not belong exclusively to the national government, it does not belong to it at all. For if so vested, it is because it appertains to the foreign intercourse of the country; and is necessarily exclusive. But if not so vested, then it is among the reserved powers of the states, and remains exclusively with them. If it is reserved power of the states, it will at once be seen that all that has been done in relation to it by the national government, from the adoption of the Constitution to this time, has been void and unconstitutional. The twenty-seventh article in Jay's treaty was void. The surrender under it of Robbins, alias Nash, was of course unauthorized. And all the negotiations and correspondence which have taken place upon the subject, during this whole time, have been without any authority. Yet nothing of this kind appears ever to have been contended for, or even suggested. The case of Robbins was largely and warmly discussed in the House of Representatives of the United States, at the time of his surrender or soon afterwards; and among all the objections raised in regard to it, no question appears to have been made of the authority of the national government over the subject, nor a suggestion that the states had any concern with it.

Again: it could only be upon the ground of connecting the subject with the right of the states to regulate their internal police, that it could be supposed to be included in their reserved powers. But none of the writers on public law have treated this question as one at all connected with the internal police of a country, or with any internal power whatever. On the contrary, it has been uniformly ranked among the questions of external and foreign concern; and is spoken of only when treating of the relations between different countries. And in the case of the City of New York vs. Miln, 11 Peters, 305, the police powers of the states were fully examined and defined by this Court; and I think it will not be denied that they were extended to their utmost limits. But at the same time, it will be perceived that the subject now under discussion was not embraced by any of the principles declared to be applicable to those powers. The state law in that case had its operation, and its whole operation, within the territory and jurisdiction of New York. It neither led nor could lead to an intercourse or correspondence with any foreign power whatever. And it had, moreover, no reference to the commission of crimes, within or without the state, nor to the arrest of criminals of any description.

It is true that the legislature of the state of New York, several years ago, enacted a law authorizing the governor of the state, in his discretion, to surrender fugitives from foreign countries. But public opinion has lately manifested itself stongly against the validity of the law; and the governor, during the last year, refused to act under it, upon the express ground that the national government had exclusive jurisdiction over the subject, and, consequently, that the act of the legislature was unconstitutional and void.

But, secondly, if it should be admitted that a state, by some police regulations within her power to make, could effect the expulsion from her jurisdiction of a person charged with a crime in another country; still the act of the Governor of Vermont in the present case, was not of that character, but was a direct act of foreign intercourse, and, therefore, illegal and void.

The order for the arrest of the plaintiff in error was not founded upon any law of the legislature of Vermont for the regulation of her internal police; nor, in fact, upon any authority whatever proceeding from the state. On the contrary, it is manifest from the order itself, and has always been admitted, that the governor proceeded upon the ground of a supposed obligation on the part of the state, arising under the laws of nations, to surrender fugitives from justice on the application of foreign governments; and a belief that he had a right, as the executive of the state, to fulfil such obligations, without any authority for the purpose, derived from the Constitution or legislative acts of the state. But if any further proof were wanting that the Governor of Vermont was not acting, nor authorized to act merely by virtue of his office, in the execution of any internal police regulation, it would be sufficient to point to the article in the Constitution of that state which declares, that 'the people of this state, by their legal representatives, have the sole, inherent, and exclusive right of governing and regulating the internal police of the same.'

Neither has there been any practice or usage of the state upon which the act in question can be attempted to be justified. Not a single person has ever been surrendered on the part of the state; and it appears by the record, that in the year 1825 there was a positive refusal to give up two men who were demanded as thieves by the Governor of Canada, and that the decision of the executive of Vermont was approved by the President of the United States. And here I beg the Court to understand, that this case is not referred to, so far as it respects the decision of the then Governor of Vermont, as an authority in point of law, but merely as one fact, among others, in order to exclude any pretence of an authority from usage for the proceeding in this case.

And equally certain is it, that so far as it regards the surrender of American citizens, there could be no reciprocity on the part of Canada; since, by the laws of that province, no subject of the realm can be sent prisoner out of the country. It was upon this ground that Lord Aylmer, the Governor of Canada, in the year 1833, refused to surrender, on the application of the Governor of New York, four men who had come over the line, and barbarously murdered a young woman in the town of Champlain.

We have now arrived at the third and last point; which is, that admitting a state to possess the right to act upon the subject of surrendering to foreign governments fugitives from justice, yet that the sovereign power of the state must be brought into action, and the surrenders made under a regular law or proceeding of such power; and that as the act now complained of was without any such authority, it was a violation of the provision in the Constitution of the United States which declares that 'no person shall be deprived of life, liberty, or property, without due process of law.'

But here arises the question, whether this provision in the Constitution is applicable to the states; or, in other words, whether it constitutes a protection against the unlawful exercise of state power. I am aware that it has been decided by this Court, in the case of Barron vs. The City of Baltimore, 7 Peters, 243, that the amendments to the Constitution of the United States, commonly called the bill of rights, were simply limitations of the powers of the general government, and had no effect upon the state governments. But as the decision is a recent one, and stands alone, I trust the Court will attend to me while I submit a few remarks upon a question so important and interesting.

Let me begin by observing that the rule of construction which can generally be resorted to, in order to determine the sense of any provision in the original Constitution, cannot be applied to the articles of amendment. The Constitution itself was one connected work, and was the result (if I may be allowed the expression) of a concentration of mind; and in deciding upon one part of it, reference may be had to other parts, and the whole so construed as consistently to stand together. But the case is very different as it regards the amendments. These have little or no connection with each other, varying both in their character and in their terms, and were originally proposed from different quarters, and with different objects. Each article, therefore, if not each clause, should be construed simply according to its own nature, and the terms in which it may be expressed.

With the utmost deference I beg leave to observe, that in my humble judgment, an error was committed by the Court, in the case referred to, in supposing all the articles of amendment to be in the nature of limitations of governmental power, or to have been so intended at the time of their adoption. When we speak of a limitation of power, we have naturally in view some power which, without such limitation, might be lawfully exercised; and of this character are the prohibitions in the original Constitution, whether relating to the general government, or to the states. That some of the amendments are of the same character is unquestionably true. But there are others which are not so; among which is the one containing the clause declaring that 'no person shall be deprived of life, liberty, or property, without due process of law.' These latter cannot be considered as limitations of power, but are to be understood as declarations of rights. Of absolute rights, inherent in the people, and of which no power can legally deprive them.

The right of personal liberty has existed ever since the first creation of man, and is incident to his nature. It has been recognised from the earliest organization of society, and the first institution of civil government, until the present time. And for the plain reason that this sacred right is beyond the reach of all legitimate power, it cannot properly be the subject of a limitation to the action of a regular government. Whether the declaration of this right, as well as of others, was made a part of the Constitution of the United States, with a view, principally, of guarding it from violations by the general government, it is not material to inquire. We find it there, and the only question now is, as to the extent of its operation.

That the clause in question (and indeed the whole article in which it appears) embraces every person within the limits and jurisdiction of the whole Union, will not be denied. All that remains to be determined is, whether it is to be construed as leaving the states free to encroach upon the right which it declares every one shall enjoy; or whether it is to be understood as recognising and adopting the principle that no power from any quarter can do so. In other words, whether the clause was inserted because it was deemed more proper for the states than for the general government to deprive a person of his life or ...

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