§ 838. The term necessary has a more obvious significance in reference to the end to be obtained by legislation than to the particulars of the law, or the means provided by the law for the end in view. Because, in attaining every proposed end, though some means are requisite, the means which are actually employed may not be necessary, that is, essential, if compared with others which might have been employed.'

It is principally the propriety of these Acts of Congress, or their conformity with other legal rules contained in the Constitution, which is here to be considered. But with regard to the necessity of the Act of 1850, or of any subsequent statute, it may be observed that the existence of a previous Act of Congress cannot be taken to diminish the power of Congress to enact another for the same purpose; because the adequacy of the existing Act to the necessities of the object is always a proper subject of the judgment of the legislator from whom it proceeded.*

The object of these Acts being assumed to be to carry into effect one or both of these provisions in the fourth Article, and that object being taken to be legitimate under either the

such convenient certainty as may be; and a transcript of such record, authenticated by the attestation of the clerk and of the seal of the said court, being produced in any other State, Territory, or district in which the person so escaping may be found, and being exhibited to any judge, commissioner, or other officer authorized by the law of the United States to cause persons escaping from service or labor to be delivered up, shall be held and taken to be full and conclusive evidence of the fact of escape, and that the service or labor of the person escap. ing is due to the party in such record mentioned. And upon the production by the said party of other and further evidence if necessary, either oral or by affi davit, in addition to what is contained in the said record of the identity of the person escaping, he or she shall be delivered up to the claimant. And the said court, commissioner, judge, or other person authorized by this act to grant certificates to claimants of fugitives, shall, upon the production of the record and other evidences aforesaid, grant to such claimant a certificate of his right to take any such person identified and proved to be owing service or labor as aforesaid, which certificate shall authorize such claimant to seize or arrest and transport such person to the State or Territory from which he escaped: Provided, That nothing herein contained shall be construed as requiring the production of a transcript of such record as evidence as aforesaid. But in its absence the claim shall be heard and determined upon other satisfactory proofs, competent in law.

Approved September 18, 1850.

Osborne v. U. S. Bank, 9 Wheaton, 859; McCulloch ". The State of Maryland, 4 Wheaton, 316; United States v. Fisher, 2 Cranch, 358, 396.

2

This seems to be the objection against the statute of 1850, so far as it is founded on the theory of vesting the judicial power of the United States, which is made in N. Y. Leg. Obs. Vol. IX. p. 7. I have seen a like objection in ephemeral publications, about the same date, to which I am not able particularly to refer.

second, third, or fourth of the several constructions before examined, their propriety is to be measured by their accordance with the extent of the constitutional provisions themselves in respect to persons and jurisdictions, and the original force of those provisions in sustaining the rights and obligations of either private or public persons, and also by the consistency of the means provided by the Acts for their proper object with other principles of public or private law, identified in their authority with the Constitution. This manifestly will depend in a great degree upon the view which is to be taken of the authority of these provisions in reference to public and private persons, and may differ accordingly as the second, third, or fourth of the constructions referred to is assumed for the basis of legislative power.

§ 839. In reference to the persons affected by these Acts of Congress, it is evident that since the provisions are themselves the law, and the legislation of Congress must be confined to the object of making them effectual according to their original extent, a statute can in no case be held to apply to any not included under the language of the Constitution itself. The legislation of Congress cannot extend to more persons or cases than are comprehended under the provisions, but it might be limited to a portion only of those persons who may, under the Constitution, be demanded as fugitives from justice, or claimed as owing service or labor by the laws of the State of their domicil. In that case the States demanding or the private persons claiming, under either provision, such fugitives as should not be included within the meaning of these Acts would still possess the same rights which, as demandants or claimants of fugitives, they would have had had there been no Act of Congress; and the judicial power of the United States could still be exercised to sustain those rights, if it could have been applied before the enactment of any statute. Such demandants or claimants might also apply to the executive or judicial officers of the State into which the fugitive demanded or claimed had escaped; and, by the separate authority of such State, recognizing its obligations under the Constitution, or under the ordinary private international law, the surrender or

elivery of such fugitive might be made by its proper officers. Whether such surrender or delivery could be made by either he executive or the judicial officers of one of the States withut special local legislation, is a question partly of the exerise of judicial power by State officers under the national muicipal law, which question has been considered in another part of this treatise,' and partly of the powers of the State executive and judicial officers under that international law which, acting on the State as a political person, is a law in the mperfect sense only, except as it may become identified with the local municipal law of that State,-which question should roperly be taken up in a later portion of this work. For the claim, it is supposed, may be made either under this provision, operating as law in the strict and proper sense, or under international law, operating among the States as distinct nationalities.

In the earlier of these statutes the persons whose freedom may be drawn in question, whether as fugitives from justice or from labor, are described by the words used in the constitutional provisions. In the Act of 1850, sec. 6, 10, the person is described as held to service or labor, without adding "under the laws thereof."

840. In the cases of Bushnell and Langston, who had been convicted, in the United States District Court, under the last law, it was urged that the act charged in the indictment, which followed the statute in this particular, had not been shown to be criminal. Judges Brinkerhoff and Sutliff held that the indictment was therein defective; by not showing a case in which the District court had jurisdiction. 9 Ohio, 221, 323. The majority of the State court refused to examine into the validity of the indictment. Ibid. 183, 217. The question, being of the powers of courts on habeas corpus and of criminal jurisprudence, cannot be here examined.

§ 841. The Acts of Congress, or of the States, intended to carry out the effect contemplated by this provision, may have been so worded as not to include all persons to whom the de

1 Ante, Vol. I. pp. 496–500.

On the general topic, see R. C. Hurd on Habeas Corpus, &c., ch. 6, sec. 1-3.

scriptive terms of the provision itself will apply. In the case of John Davis, at Buffalo, August, 1851, it was held by Judge Conckling, of the U. S. District Court, that the provisions of the tenth section of the Act of September 18, 1850, were prospective and were not applicable to Davis, who had escaped on or about August 25, 1850.'

§ 842. The personal extent of these clauses of the Constitution has, it will be remembered, been considered in a previous chapter. The Act of 1850 provides new means for carrying into effect the provision relating to fugitives from labor. If there is no legal right under the provision itself, or if the claim can be a matter of legal controversy only when a statute has been enacted to give it effect, it might be argued that the statute can extend only to cases of escape occurring after its enactment. But if the fourth construction of the provision is adopted, under which the owner's right of claim is a valid, legal right, independently of State or national legislation, the statute regards only the remedy to be applied in maintaining a pre-existent legal right, and the remedy given should be taken, on well-known principles,' to apply to all cases of escape, whether occurring before or after its passage. But the lapse of time has rendered the question, under these two Acts, of little practical importance.

§ 843. The purpose of the provisions in the fourth Article of the Constitution being to sustain in one State jurisdiction certain rights and obligations which originated under the local law of another, the Acts of Congress must not do more than sustain such rights and obligations as may be created or guaranteed by the provisions themselves. But in doing this it may be necessary and proper to create new rights and obligations, as accessory to and instrumental in sustaining the former. The nature and extent of these provisions, as they stand without the legislation of Congress, and the effect which they have in reference to the local jurisdictions of the several States, have already been considered. The ancillary rights and obligations created by the statutes are to be now examined as

2

IV. West. L. Journal, 14; and IV. Mon. L. Rep. 159.

inte, Ch. XXV.

See on retrospective statutes, 1 Kent, 455.

cidents of the means or instrumentalities provided by these catutes for carrying out the provisions.

The rights and powers which may be exercised under any rovision of the Constitution can only be such as are in harmony with its other provisions, and the exhibition of any one uch right or power requires, in fact, the exposition of a large portion of the Constitution. It is evident that the exercise or naintenance of any rights or powers under these statutes need ere be examined only so far as they have practically been considered questionable in courts of law. The questions which are to be examined in considering the propriety of the means or instrumentalities provided by these statutes relate either

1. The tribunals, official persons, or public officers before or upon whom the demand or claim is to be made, and by whom the delivery is to be enforced.

2. The remedial process by which the demand or claim is to be presented, the proofs on which its legality is to be decided, and the method in which the delivery to the demandant or claimant is to be carried into effect and his custody maintained.

3. The penalties by which rights and obligations created by these provisions or by these statutes are to be secured and enforced.

844. The first and second sections of the Act of 1793 constitute the only legislation of Congress relating to the delivery of fugitives from justice. The question which has arisen on this statute, in reference to the first of the above-named points of inquiry, is, whether it violates certain provisions in the Constitution of the United States' by conferring the judi

1 Art. III., Section 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.

In Art. I., sec. 2, it is provided that the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law. But the Congress may, by law, vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments.