a Body-politic; that the Constitution of the United States is a compact between these sovereign units and Bodies-politic, making a Federal Union between the States; that the organic Federal force of the Federal Union is the Federal Government, to which, by the Constitution of the United States, the States, separately and in combination, have delegated powers, reserving the residuum of powers not so delegated to the United States, nor prohibited to the States, to the State governments, or to the people of the States, respectively.

"Second. The second school holds that the Union is itself the unit of sovereignty, of which the States are subordinate parts, to which certain powers belong under the Constitution of the United States, while the main powers belong to the National Government.

"Under the first view the Union is a multiple of units; under the second, the Union is a unit of which the States are fractions. At the head of the second school, Judge Story is primus inter pares, and following him we have, in the present day, Von Holst, Burgess, Hare, Pomeroy, and a number of others."?

Mr. Tucker's views as to the extent and limitations of the treaty-making power of the United States found official utterance in a report made by the Judiciary Committee of the House of Representatives, of which he was Chairman in 1887, and to which more extended reference will be made later.3

§ 17. Discussion limited to the Treaty-Making Power.— It is not the purpose of this volume to enter into a general discussion of the theories of the delegated, or general, powers of the Government of the United States, except so far as they affect the treaty-making power; in this respect, it seems not only possible to reconcile the two conflicting doctrines of construction, but also to harmonize them in sustaining to the fullest extent this great and necessary power of the Federal or National Government, whichever it may be called.

18. Duality of Government of United States.-The

2 Tucker on the Constitution, | Session, House of Rep., Report vol. I., sec. 106, p. 178. No. 4177 on Treaty with Hawaiian

3 Cong. Doc. 49th Congress, 2d Islands, March 3, 1887.

question which is so often asked whether the Government of the United States is National or Federal can be consistently answered by the declaration that it is both. While the two words from the standpoint of the lexicographer may be exclusive of each other as to certain matters, they are not necessarily so when considered as to the different capacities of governmental action and control over people who have delegated different portions of sovereignty to the State and Central Governments respectively. In fact, those separate phases so exist that the diverse nature of the government not only necessarily exists, but it would be an impossibility for the government to survive without its existence. Although this duality in nature of the Government of the United States in its Federal and National capacities has existed from its very inception, it had to be thoroughly understood and appreciated, not only in theory but also in practice, before this question was, as it certainly has been, settled by the Supreme Court of the United States, which has finally, and beyond all doubt, decided that the elements of nationality and sovereignty exist as to some matters, while the limitations. which necessarily attend all delegated power where there is any residuum reserved, exist in regard to other matters.1

19. Extent of original State Sovereignty.-Whatever State sovereignty existed at the time of the adoption of the Constitution, and was not delegated to the Central Government, was undoubtedly reserved to the States; such reservation, however, must necessarily have been in regard to those matters over which State sovereignty had been, or could have been, exercised; in all such respects this reservation of power and sovereignty must be construed as broadly as possible for the benefit of the States. As to those subjects, however, over which it was neither proper nor practical for an individual State to exercise any control or sovereignty, but which required National action for the joint or equal benefit of every State, it is a self-evident proposition, that, as no power or sovereignty existed in regard thereto in any State, it was impossible for any one of the States separately, or all the States col

§ 18.

1 United States vs. Cruikshank, U. S. Sup. Ct. 1875, 92 U. S. 542,

WAITE, Ch. J., and also see cases cited under § 12, ante, and §§ 35–6, post.

lectively, either to delegate to the newly formed government, or to reserve to themselves, elements of sovereignty which none of them possessed.1 For the same reason it cannot be

$19.

"The Constitution, in its first article, and in the first clause of the tenth section, declares that 'no State shall enter into any treaty,

a subsequent clause of the same section, it declares that no State shall, without the consent of Congress, enter into any agreement or compact with another State, or with a foreign power.'

6

"The first of these prohibitions is absolute and unqualified, and completely excludes all power in the States to make treaties with foreign nations on any subject whatever. The States, of course, cannot make extradition treaties securing the right to demand fugitive criminals from foreign Governments, and contracting the obligation to deliver them up to such Governments.

1"The states were not " sovereigns' in the sense contended for by some. They did not possess the peculiar features of sovereignty-alliance or confederation;' and, in they could not make war, nor alliances, nor treaties. Considering them as political beings they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any propositions from such sovereign. They had not even the organs of defense or offense, for they could, not of themselves raise troops, nor equip vessels for war." (Mr. King, on June 19, 1787, in the Philadelphia convention, Madison papers; Elliot, Deb., V., p. 212, and see § 179 of chap. VI., post.) "Mr. Ruffin called attention in the debates of the peace convention at Washington, February, 1861, to the fact that during the Revolutionary War North Carolina had laid the foundation of a fleet, to which Orth of Indiana replied: There, then, we have a single instance of one of the States taking a step towards sovereignty.' None of the delegates from the Southern States could adduce another instance." Chittenden, Debates of the Peace Convention, p. 262. See also Von Holst, vol. I., chap. 1 p. 24, where the above appears as a footnote.

The complete lack on the part of any State government to perform any act which involves foreign relations is illustrated by the fact that no State can deliver up a fugitive to a foreign power except in pursuance of an act of Congress. In this regard Spear says (p. 18):

"The second prohibition forbids the States, without the consent of Congress, to enter into any agreement or compact with a foreign power.' The agreement or compact,' as here referred to, is not identical with a formal treaty, which is absolutely forbidden in a previous clause of the section. The words mean any arrangement, negotiation, agreement or compact with a foreign power, though it should not amount to a treaty in the strict sense; and no State, unless with the prior consent of Congress, can enter into any arrangement, negotiation, agreement, or compact on any subject with another State or with a foreign power.

"The plain design of both prohibitions is to exclude the States

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

agreement or compact with a foreign power which, with the consent of Congress, is admissible, is evidently 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

from all official intercourse within the General Government. foreign nations, and leave all such intercourse to be exclusively managed and conducted by the General Government. 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.

"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 response 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.

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:

"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 Canadian authorities as a fugitive criminal, 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

"Moreover, the delivery of a fugitive criminal to a foreign Govern-matter of foreign intercourse, unment 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

dertook 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

§ 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), crimes. This was in 1872; there sued out a writ of error from the was no extradition treaty between Supreme Court of the United the United States and Belgium at States; and this court, being di- that time, the President of the Univided in opinion, was not able, as a ted States therefore had no authorcourt, 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.