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the Government from a previous implication of a duty in such Government; not a duty correlative to a right in a legal relation, on which cases within the judicial power may arise, but a political duty, above the ordinary administration of justice, and like other political duties of states towards private persons or other states. Whether Story's opinion may or may not be reconciled with this view, it seems to have been the doctrine of the majority of the court in Prigg's case, and that doctrine which is generally reaffirmed in the opinions which follow that case as leading authority.

Whatever may be the nature of the duty; that is, whether it is its political duty or its legal duty, it would seem that it must be admitted that if any duty is imposed on the national Government by the Constitution, the power to fulfill it is given by necessary implication.'

There is not the slightest argument offered in favor of the idea that the delivery of a fugitive from justice or from labor is a duty enjoined upon the national Government as a whole, or that the claim for the one or the demand for the other is to be made against the national Government as a whole, and the implication of such a power is at variance with the general idea of the Constitution, which invests the functions of sovereign power separately. So far as the Constitution is public law in the sense of a rule, it acts on certain public persons who may hold either the legislative, the executive, or the judicial functions, for the exercise of those sovereign powers which belong to the United States, or the integral people of the United States from whom the Constitution derives its authority. To the Government, as a whole, nothing is granted in the Constitution; no rights or duties are attributed to it in that instrument. It is the United States only as a pre-existing political person that promises or guarantees, and wherever they do this in the Constitution, they make law for natural persons,

But then the power to legislate in reference to the fulfillment of such duty would not be distinguishable from the general power over whatever claims may be made against the United States or the national Government. It is not necessary to presuppose a power in the judiciary department which shall thereby be carried into effect. Compare Judge Sprague's remarks on Judge Story's statement of the basis of legislation in Prigg's case, ante, p. 468, note,

creating rights and duties which may be enforced by the executive when the law is judicially administered.'

792. The only other implication of a power in the integral national Government is that founded upon the idea that these provisions are a law, in the strict sense, acting on the States as its subjects; though whether any court has actually supported this theory may be doubted.

If, indeed, any clause in the fourth Article is to be construed as a law in the strict sense acting on the States as its subjects (the second construction), there must doubtless be some person, distinct from the States themselves, who may have authority to enforce it upon them. But admitting that any clause has this character, it is still to be proved that the national Government is this person.

The power which, under this construction, is attributed to the national Government, cannot even be classed with those which Story, in sec. 1256 of his Commentaries, calls. "resulting power, arising from the aggregate powers of the national Government." For among all the offices or duties assigned to that Government by the Constitution, there are none which severally, or in the aggregate, require the possession of power to act on the States, or to act instead of the States in fulfilling, within their several domains, the duties they may owe to the other States or to private persons."

So far as any argument has been presented, in any of the opinions cited,' the power to act on the States, or to act for the States, in fulfilling their obligations under this construction of

The only place where the "Government of the United States" is mentioned is in the clause giving Congress this general grant of powers, and in the clause preceding-giving power to exercise exclusive legislation over such district as may by cession of particular States and the acceptance of Congress, become the seat of the Government of the United States."

There is much, indeed, said by Judges Shaw and Marvin, by McLean in McQuerry's case, and in Prigg's case, and even by Story in Prigg's case, like the support of such a resulting power. It may be remarked here, that if a power may be implied in the national Government from the coercive character of the provision, that coercive character should be shown from something else than the presumed existence of a power in that Government to carry it into effect.

In my own place I am ready to say, with Judge Sutliff, 9 Ohio, 275:-" After the most careful examination, I am convinced, beyond any reasonable doubt, that the case of Prigg, &c., is not a correct exposition of the law. On no principle of rational construction recognized by common law or sound reasoning, or by any rules of judicial decision, is it thereby shown that Congress has any power, under the Constitution, to legislate for the reclamation of fugitives from service."

these clauses, might as well be attributed directly to the national legislature, or to the executive. It will probably be admitted by all, that if these clauses are a law in the strict sense acting on the States as its subjects, which must be enforced by some person distinct from those States, the national Government is the person who may with the most propriety assume the office, since every power which the constituent people of the United States, the authors of the rule, are known to have delegated, they have delegated to some department or officer of this Government. But still any determination of the person who is to enforce this supposed law, is made by arbitrary opinion only, and cannot be discussed or examined as matter of law.

793. The true character of these provisions, as public or private law, must be determinable by some juridical standard.

According to the first and second of the four construetions hereinbefore described, these two provisions operate on the States as the subjects of the rules contained in them. According to the first, the obligation imposed is like that under a treaty between independent nations. According to the second, it is like that created by law in the strict sense.

But, according to the view of the nature of the Constitution which is given in the twelfth chapter of this work, it is not in any part, more than another, a treaty or compact between the States as independent nationalities. It is, throughout, a law for the States only in the secondary sense of the word law; that is, as it describes a condition of things, and indicates the extent of the "reserved" powers of the States. So far as it is law in the primary sense, or a rule of action, it is either public law in determining the powers and duties of those functionaries who, together, constitute the national Government estab lished by it, or private law determining the rights and obligations of private individuals. The Constitution does not create relations in which the States are, in any legal sense, the subjects of rights or obligations, and they cannot be the subjects of the rules contained in these provisions;' though, as evidence

1 Sutliff, J., 9 Ohio, 316, see ante, §§ 359, 395. In § 359, on p. 423 of Vol. I. of this work, the public law contained in the Constitution was, inadvertently, described

of the fact, they determine the extent of the "reserved" powers of the States.

794. Any one clause of the Constitution must be construed with the presumption that it is in harmony with the nature, scope, and design of the instrument, as apparent on a broad and general view. In the twelfth chapter of this work it was held that the Constitution is both a declaration of the distribution, between the national Government and the several States, of the sum of powers belonging to an independent nation, and a law in the strict sense acting on all private persons within the United States; for the execution of which law a Government is at the same time established. As correlative to this doctrine, it is also held that (whether the Constitution was made by the integral people of the United States, or by the States entering into a federal union) the legal character of the Constitution is not in any one part more than in another that of a compact or treaty between independent states, creating duties which may be fulfilled by their separate and subsequent action.

This general character of the Constitution, as a law acting on private persons, and of the Government established by it, as intended to apply that law in determining rights and obligations of private persons, is undisputed.

as containing "provisions which create relations in which the several States or the Government of the United States are, in their political capacity, the subjects of rights or obligations." This is speaking more in accordance with the common phraseology than according to the view taken in the residue of the work. The States are known in the Constitution only as political persons holding certain of the powers of sovereign states or nations, not as subjects of law proceeding from other powers of sovereignty. Hence, the relations which they sustain can never be ordinary legal relations. It is true they may be parties in cases within the judicial power of the United States, so that they appear as claiming rights or denying obligations. But the relations in which these rights and obligations exist do not, properly speaking, arise under the Constitution of the United States. With the exception of questions of boundary between States, the rights litigated by the States seem only to arise from their own several laws. And the question is determined by the Constitution of the United States only so far as it is evidence of the extent of State powers. In some of the earlier cases, before the adoption of the eleventh amendment, there may be intimations of a contrary doctrine; e. g., in Chisholm v. Georgia, 2 Dallas, 464, Wilson, J., said:" For they seem to think that the present Constitution operates only on individual citizens, and not on States. This opinion, however, appears to be altogether unfounded." The theory which Judge Sutliff, in 8 Ohio, 243, stated, as the received basis of the legis lation of Congress in respect to fugitives, is at variance with the eleventh amendment. See ante, p. 468, note 2.

See among Story's rules for construction, Comm. § 405.

Even if a clause precisely similar to one of these provisions of the fourth Article is to be found in the Articles of Confederation,' and if it could, under that system, have been made operative on private persons only by the action of the several States, yet these clauses in the Constitution cannot be held to have the same character, unless the plain interpretation of the words should indicate such a character. For it is matter of history that while the Confederation was in the nature of a federative league, and by many of the articles private persons were not affected except by the co-operation of the several action of the States, the Constitution was conceived of as being in this respect the contrary of the earlier system.

This reasoning should exclude the first and second of the four constructions, or, if it leaves room for either, it is for the first only; since, unquestionably, some of the acts to be done on the part of the States, according to the plan of Government devised by the Constitution, are in the nature of duties arising under the Constitution. But no power to enforce these duties, or to supply a want of action by the States in fulfilling these duties, has ever been pretended, if not expressly given by the Constitution.'

The idea of a law acting on the States, and to be made coercive or carried into effect without their action, by some other authority, appears never to have been advanced by any of the framers of the Constitution,' nor to have been discovered

See the article quoted ante, p. 384.

2 For example, to send Senators to the national Congress. Compare Smith, J., 3 Wise. 128, ante, p. 519.

The brief minutes of the debate in the Convention, given by Madison, on this provision, have been referred to on either side to support different conclusions. The subject appears first in the debate, Aug. 28, 1787, on the original provision for extradition of criminals:

"Mr. Butler and Mr. Pinckney moved to require 'fugitive slaves and servants to be delivered up like criminals."

"Mr. Wilson. This would oblige the executive of the State to do it at the public expense.

"Mr. Sherman saw no more propriety in the public seizing and surrendering a slave or servant than a horse.

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Mr. Butler withdrew his proposition in order that some particular provision might be made apart from this article."

On the 29th August, Mr. Butler moved to insert an article substantially like the adopted provision. Madison Papers, p. 1447.

All that is to be gathered from this is that, when the thing was first proposed, Wilson looked at it as devolving a duty on the States as the persons bound by the rule, while Sherman regarded it as a rule which would act, as private law, on

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