Page:The Green Bag (1889–1914), Volume 19.pdf/681

 642

THE GREEN BAG

might come into conflict. As a matter of fact this is not true. The Constitution limits congressional legislation to the cases of persons who have fled from the demand ing state. It seems clear that Congress could not, in the face of this limitation, pass a statute touching persons charged with crime in a state, from which they have not fled. If it were true that Congress had power to pass such a statute, then the argu ment of Mr. Justice Story to the effect that the subject is one peculiarly for federal legislation, and the added fact that state laws must be subject to the defect before mentioned in this article, might constitute a formidable objection to state action. But, if, as it seems, Congress has no power to act, then there is no force in that objection. If Congress has not the power, then the fact that Congressional action would be an apt remedy, and that state laws are subject to an inherent weakness, however serious, is entirely immaterial. In speaking of a case where Congress, in pursuance of powers conferred upon it by the Constitution, has passed certain stat utes, Mr. Justice Story says: "In such a case the legislation of Congress in what it does prescribe, manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject matter. Its silence as to what it does not do is as expressive of what its intention is, as the direct provisions made by it." Without expressing any opinion as to the correctness of the specific rule above stated, the writer suggests that, in order to hold the state legislation in question unconstitutional, the rule would have to be extended some what as follows: "Since the Constitution treats as fugitives from justice only persons who have fled from the demanding state, therefore it manifestly indicates the inten tion that all legislation concerning the interstate rendition of persons charged with crime shall be confined to persons of that class. ' ' The above argument certainly does apply to limit the legislative power of

Congress. It cannot apply to limit the power of the states. Such a doctrine of implied prohibition would surely be in conflict with the rule that the states retain all powers not delegated to the federal government, as laid down in Gibbons v. Ogden and a long line of famous cases; it would practically wipe out the doctrine of reserved powers, in violation of the pro visions of Articles IX and X of the Amend ments to the Constitution of the United States. Section 1 of Article IV of the Consti tution of the United States provides "Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved and the effect thereof." Congress has passed a statute to this end. Many of the states have passed statutes requiring less by way of certification or other proof, than is required by the Act of Congress. The con stitutionality of these statutes has never been questioned, for they do not impair the constitutional obligation. The Supreme Court of the United States has held that a judgment in an action in personam, based upon service by publication, need not be given due faith and credit under the Con stitution. Haddock v. Haddock, 50 L. Ed. 857, and other cases there cited. But while so holding the court says that it inti mates no doubt as to the power of a state to give a judgment of that character "such efficacy as it may be entitled to in view of the public policy of that state." 50 L. Ed. at 884. If a state may act outside of the mandate of the Constitution in regard to the judicial proceedings of a sister state, so long as it does not violate its consti tutional obligation, why may it not so act in regard to rendition of fugitives from justice? In closing, the writer desires to notice two cases which have sometimes been said to