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power is "to regulate commerce between the States," and the attempts now made during every session of Congress to carry the implications of that power beyond the utmost boundaries of reasonable and honest inference show that the only limits likely to be observed by politicians are those set by the good sense and conservative temper of the country.
The proposed federal legislation with regard to the regulation of child labor affords a striking example. If the power to regulate commerce between the States can be stretched to include the regulation of labor in mills and factories, it can be made to embrace every particular of the industrial organization and action of the country. The only limitations Congress would observe, should the Supreme Court assent to such obviously absurd extravagancies of interpretation, would be the limitations of opinion and of circumstance.
It is important, therefore, to look at the facts and to understand the real character of the political and economic materials of our own day very clearly and with a statesmanlike vision, as the makers of the Constitution understood the conditions they dealt with. If the jealousies of the colonies and of the little States which sprang out of them had not obliged the makers of the Constitution to leave the greater part of legal regulation in the hands of the States, it would have been wise, it would even have been necessary, to invent such a division of powers as was actually agreed upon. It is not, at bottom, a question of sovereignty or of any other political abstraction; it is a question of vitality. Uniform regulation of the economic conditions of a vast territory and a various people like the United States would be mischievous, if not impossible. The statesmanship which really attempts it is premature and and unwise. Undoubtedly the recent economic development of the country, particularly the development of the last two decades, has obliterated many boundaries, made many interests national and common, which until our own day were separate and local; but the lines of these great changes we have not yet clearly traced or studiously enough considered. To distinguish them and provide
for them is the task which is to test the statesmanship of our generation; and it is already plain that, great as they are, these new combinations of interest have not yet gone so far as to make the States mere units of local government. Not our legal conscience merely, but our practical interests as well, call upon us to discriminate and be careful, with the care of men who handle the vital stuff of a great constitutional government.
The United States are not a single, homogeneous community. In spite of a certain superficial sameness which seems to impart to Americans a common type and point of view, they still contain communities at almost every stage of development, illustrating in their social and economic structure almost every modern variety of interest and prejudice, following occupations of every kind, in climates of every sort that the temperate zone affords. This variety of fact and condition, these substantial economic and social contrasts, do not in all cases follow state lines. They are often contrasts between region and region rather than between State and State. But they are none the less real, and are in many instances permanent and ineradicable.
The remedy for ill-considered legislation by the States, the remedy alike for neglect and mistake on the part of their several governments, lies, not outside the States, but within them. The mistakes which they themselves correct will sink deeper into the consciousness of their people than the mistakes which Congress may rush in to correct for them, thrusting upon them what they have not learned to desire. They will either themselves learn their mistakes, by such intimate and domestic processes as will penetrate very deep and abide with them in convincing force, or else they will prove that what might have been a mistake for other States or regions of the country was no mistake for them, and the country will have been saved its wholesome variety. In no case will their failure to correct their own measures prove that the federal government might have forced wisdom upon them.
19. EXTRADITION OF FUGITIVES FROM JUSTICE BETWEEN THE
Under authority granted by the Constitution, Congress in 1793 passed a law providing for the extradition of fugitives from justice. This law is still in force and Mr. J. S. Wise thus explains its history and operation:
Pursuant to this obligation the Congress has enacted statutes providing for the extradition from one State to another of fugitives from justice. These Federal statutes control the demand, and statutes have been passed in all the States providing measures in accordance with the Federal laws. In the first case of extradition presented to the Supreme Court, the prisoner was indicted in Canada and requisition was made by the Canadian government on the governor of Vermont, who undertook to deliver him. He applied for a habeas corpus on the ground that such a delivery could only be made to a foreign government on a requisition upon the United States, and that the United States would not, as had been shown by its action in another case, honor the requisition because there was no treaty. The Vermont court dismissed the writ, and the Supreme Court, by a divided court, sustained the action of the State Court. In another case it was held to be the duty of the governor of one State, on the demand of the governor of another State, and the production of the indictment, duly certified, to deliver up a fugitive from justice; that the function of the former is merely ministerial, and that he has no right to exercise any discretionary power; that he is under moral obligation to perform the compact of the Constitution, Congress having regulated the manner of performance; but that no law of Congress could coerce a State officer to perform his duty, and a motion for a mandamus against the governor was denied. And again it was held that the Federal statute demanding surrender of a fugitive from justice found in one of the States or Territories, to the State in which he stands accused, applies to Territories
as well as States and embraces every offense known to the law, including misdemeanors.
In one case a man charged with crime in Kentucky fled to West Virginia. A requisition issued for him. While the governor of West Virginia was considering his extradition the man was seized in West Virginia, forcibly abducted to Kentucky, and there held for trial. He instituted proceedings seeking to have himself returned to West Virginia. The Supreme Court held that there was no mode provided by the Constitution or laws of the United States, by which Federal authority could restore him to West Virginia.
And a fugitive returned to a demanding State has no immunity from other indictments against him by the State from which he fled, after he is returned. But the Supreme Court has said that to extradite a man on one charge and try him on another is dishonorable. The governor of a State, upon whom demand is made for the surrender to another State of a citizen who is charged with being a fugitive from justice, may refuse the requisition if it be satisfactorily shown to him that the accused was not in the State at the time the alleged offense was committed, or since, for in that case the fact that he fled from justice is negatived.
From the foundation of the government and notwithstanding the absolute power of Congress to regulate the terms of surrender of fugitives, the governors of States have been disposed to show independence on this subject of honoring requisitions. In the days of slavery it was difficult to secure the surrender of fugitive slaves, and impossible to secure the surrender of persons charged in a slave State with having aided slaves to escape and having then themselves fled.
In some States the executive, before honoring the requisition of the governor of the demanding State, claims the right to examine the indictment upon which the demand is based, and to determine whether it is in due form, or to decide whether it charges an offense punishable under the laws of the demanding State, which is equivalent to deciding a demurrer to the
indictment; and even to hear testimony to determine the question of probable guilt or innocence. A notable instance of this is the case of a recent governor, indicted for complicity in the murder of his political rival, who, having fled first to one and then to another State, was demanded by the authorities of the State from which he fled, of the authorities of both States in which he sought asylum, but has been protected from delivery. Perhaps, in the instance cited, it was best so, but the better opinion is that if a crime is charged and demand is made, in due form, accompanied by an exemplified copy of the indictment, the duty of the executive upon whom the demand is made is to surrender the accused to the demanding State, whether he may think him properly or improperly indicted, innocent or guilty, leaving the questions of the sufficiency of the indictment and his guilt or innocence to be determined by the lawfully constituted authorities of the demanding State upon his trial there.
1-Federal Control of State Governments, Willoughby, W. W., The American Constitutional System, 111-21. 2-Federal and State Powers, Ibid., 135–53. 3-Inter-State Relations, Ibid., 272–90.
4-The Working Relations of the National and State Governments, Bryce, J., American Commonwealth, I, 325–41. 5 The Increased Control of State Activities by Federal Courts, Moore, C. A., Proceedings of the American Political Science Association, V, 64–73.