said that the people, in ratifying the Constitution, reserved any portion of sovereignty in regard to such matters to the States rather than to the Central Government.

The

from all official intercourse within the General Government. foreign nations, and leave all such agreement or compact with a forintercourse to be exclusively man-eign power which, with the consent aged and conducted by the General of Congress, is admissible, is eviGovernment. They cannot make a treaty, and they cannot, except with the consent of Congress, enter into any agreement or compact, either with each other or with a foreign power, even though it should not be a treaty in the tech-ted States intended to be exclunical sense.

dently not of the kind that embraces the extradition of fugitive criminals, since this is provided for in the powers of the General Government, and since it is a part of the foreign intercourse of the Uni

sively confided to that Government, and especially to the President in the exercise of the treaty-making power. The framers of the Constitution evidently did not mean that Congress, by simply giving its consent, should be able to endow a State with any such power."

In speaking of the case of Holmes vs. Jennison, Spear says on p. 21:

"It follows that no State can, without such consent, agree in a specific case to deliver up a fugitive criminal to a foreign Government; and if it has no power to make such an agreement, then it has no power to do the thing itself. No state can do what it has no power to agree to do. The delivery of a fugitive criminal to a foreign Government, even without a regular and formal agreement beforehand, would be essentially the same thing as doing it with such an agreement. It would, in that case, be an affirmative re-dian authorities as a fugitive crimisponse to the request or demand of the foreign Government, and an agreement to do the thing requested or demanded, accompanied with the actual doing of it, and would be just the thing in kind which it is the purpose of the Constitution to forbid and prevent.

"Moreover, the delivery of a fugitive criminal to a foreign Government by a State, even with the consent of Congress, supposing this consent to be obtained, would not be admissible, since the power to do so, as already shown, would be repugnant to a similar power vested

"This decision (of the Supreme Court of the State of Vermont) affirmed and sustained the power of the Governor of Vermont to issue the warrant for the arrest, detention and delivery of Holmes to the Cana

nal, even without any express statute of the State providing therefor. It assumed that the State, through its executive authority, could make such an arrest and delivery, and that, too, notwithstanding the President of the United States for want of power had declined to act. The Governor of Vermont, in a matter of foreign intercourse, undertook to do what the President decided that he had no power to do; and the Supreme Court of the State affirmed the legality of his action. "The decision being rendered by the highest court of the State of Ver

crimes. This was in 1872; there was no extradition treaty between the United States and Belgium at that time, the President of the United States therefore had no author

§ 20. Original nationality and sovereignty of Central Government. In respect, therefore, to matters wholly withmont, Holmes, under the twenty-end that he might be taken to fifth section of the Judiciary Act Brussels and there tried for his of 1789 (1 U. S. Stat. at Large, 73), sued out a writ of error from the Supreme Court of the United States; and this court, being divided in opinion, was not able, as a court, to render any other judg-ity to deliver up fugitive criminals ment than that of dismissing the to the Belgian government. case for want of jurisdiction. Holmes vs. Jennison, 14 Pet. 540. There was, consequently, no positive decision by the court in regard to the specific question involved in the action of Governor Jennison, and decided by the Supreme Court of Vermont." Spear on the Law of Extradition, pp. 18-21.

That a State has no power to deliver to a foreign government, was, however, decided by the Court of Appeals of the State of New York in the case of The People ex rel. Barlow vs. Curtis, 50 N. Y. 321. The syllabus in that case says:

"By the Constitution of the United States the whole subject of foreign intercourse is committed to the Federal Government, and upon all questions relating thereto it alone can speak and act. It has the exclusive power to regulate, provide for and control the surrender of fugitives from justice from foreign countries. The provision, therefore, of the Revised Statutes (1 R. S. 164, §§ 8-11, 8th ed. p. 497) providing for such surrender, is unconstitutional, and a warrant issued by the governor in pursuance thereof is void." In this case, on the request of the Minister of Belgium, one Vogt charged with the crimes of murder, robbery and arson, was about to be delivered to the Belgian authorities, to the

The Governor of New York acted under a statute, originally enacted in 1822, which provided that "the Governor may, in his discretion, deliver over to justice any person found within the State, who shall be charged with having committed, without the jurisdiction of the United States, any crime except treason, which by the laws of this State, if committed therein, is punishable by death or by imprisonment in the State prison." 1 R. S. of New York, 164. There is no doubt that this statute of the State of New York authorized the act of the Governor in ordering the arrest and delivery of Vogt. The only question, therefore, was whether the statute itself was consistent with the Constitution of the United States.

Vogt sued out a writ of habeas corpus, returnable before Judge Curtis, of the Superior Court of the city of New York, who discharged Vogt on the ground that the statute, and the warrant of arrest under it, were in conflict with the Constitution of the United States. This proceeding was reviewed and afterwards affirmed by the General Term of the Supreme Court, also by the New York Court of Appeals.

See views of Justice Samuel F. Miller on State Sovereignty, quoted in section 29 of this chapter post.

out the jurisdiction of any State the National Government was created by the original joinder of the colonies, at a time when unity of action was recognized as a prerequisite for independence, and the existence of its nationality dates from a period prior to the adoption of the Articles of Confederation. That National Government, the existence of which continued under those articles, and still continues under the Constitution, is necessarily not one of exclusively delegated powers; it undoubtedly possesses certain delegated powers, the source of which can be found in, and must necessarily be limited by, those great instruments which have, and always will, form such an important part of our organic law; it also, however, originally possessed, as it still must possess, complete nationality and sovereignty in many other respects in the same manner as they are possessed and can be exercised by other sovereign powers of the world. It necessarily follows that this proposition relates with even greater force to the treaty-making power, and to the establishment and conduct of relations between this country and every part thereof with foreign countries than it does to almost any other existing governmental powers, because in no other respect is it so generally admitted, that the government of the United States is national in its character and scope.

The Constitution recognizes the distinction between the Federal and National sources of power; this is evidenced by the Tenth Amendment, which declares that the reservation of undelegated powers is "to the States, and to the people." The people in this respect are referred to, not only as inhabitants or citizens of the States, but also as the people of the entire country as a National unit.

§ 21. Residuum of Power. This residuum of delegated power contains in itself a complete exposition of the sovereignty of the Central Government in national affairs.

It will be again referred to in the final chapter of this volume, but it requires a brief reference at this point also. As to matters affecting States in their individual capacities, all delegated power, except so far as it was reserved in the people themselves, vests in the State in the absence of specific delegation to the Central Government; as the power of the Central Government diminishes that of the State increases,

and vice versa; but full and complete sovereignty so far as the people have parted with it exists between the two governments, and there is never any loss of the whole amount of power so delegated. When, however, no State can possibly exert control over a matter, or exercise any jurisdiction owing to the nature of the subject-matter or to constitutional limitations, the entire power delegated must necessarily remain in, and be exercised solely by, the Central Government; hence it can, as it often has done, and often must do, exercise plenary power in regard to those matters, and in so doing it has been held that its power is unrestrained, except so far as it must be exercised in consonance with the fundamental principles which are intended as general securities for public liberty, and subject only to those natural limitations which are imposed upon all sovereign powers, no matter how absolute they may be, of equity, justice and truth.1

22. Powers reserved to States relate to internal affairs. It must also be remembered that the limitations upon the Central Government are those which reserve to 'the States the control of matters relating to their internal affairs; there are no express or implied limitations upon those matters which are within the purview of the national government. In fact while the treaty-making and some other powers are delegated to the Central Government in general terms, and without any specified limitations whatever, the Constitution expressly provides that "no State shall enter into any treaty, alliance or confederation;

or, without the consent of Congress, enter into any agreement or compact with another State or with a foreign power,"1 thus not only placing the power generally in the Central Government, but absolutely prohibiting any State from acquiring any additional territory, or performing any functions of sovereignty beyond its own boundaries, except through the medium of the Central Government; unless that government therefore is completely vested with the fullest powers in these respects, some portion of delegated sovereignty would neces§ 21.

1 See cases cited under §§ 36-40, post.

§ 22.

1 U. S. Const. Art. I, § 10.

sarily be lost, because no part of it would, for it could not, under the prohibitory clauses revert to the States individually or collectively; under such circumstances this country would have to stand before the world in the mortifying position of not having any government, State or National, able to perform the most necessary and far-reaching of all governmental functions; the one which all other, and fully sovereign, powers are constantly performing, and in the absence of which, foreign relations could not be maintained with any dignity or satisfactory results whatever, either for the Central Government or for the States themselves.2

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2 In an opinion delivered to Sec- "The power, which the Constituretary of State Marcy, on Febru- tion bestows on the President, with ary 26, 1857, in regard to the right of advice and consent of the Senate, the United States to regulate by to make treaties, is not only gentreaty the succession of property in eral in terms and without any exStates of the Union as to citizens press limitation, but it is accomof another Country, Attorney Gen-panied with absolute prohibition eral Caleb Cushing says: Suppos- of exercise of treaty-power by the ing engagement of this nature to exceed the Constitutional power of the Federal Government, that with Prussia does not the less exist: it is for the consideration of reciprocal benefits actually received by us; and, if it be unconstitutional, it will remain for us,—after pleading mea culpa, mea culpa gravissima, and begging pardon for entering into stipulations which we had no power to make,—then it will only remain for us to indemnify Prussia for our past shortcomings, and to negotiate a release from further obligation.

"But can it be, is there any good reason to think, that the Federal Government has no power to make such a stipulation? It may be inconvenient, because involving conflict with, or abrogation of, the laws of one or more of the States. Granted: but inconvenience is not unconstitutionality: question of which depends on the text of the Federal Constitution.

States. That is, in the matter of foreign negotiation, the States have conferred the whole of their power, in other words, all the treatypowers of sovereignty, on the United States. Thus, in the present case, if the power of negotiation be not in the United States, then it exists nowhere, and one great field of international relation, of negotiation, and of ordinary public and private interest, is closed up, as well against the United States as each and every one of the States. That is not a supposition to be accepted, unless it be forced upon us by considerations of overpowering ccgency. Nay, it involves political impossibility. För, if one of the proper functions of sovereignty be thus utterly lost to us, then the people of the United States are but incompletely sovereign,—not sovereign,-nor in coequality of right with other admitted sovereignties of Europe and America."